Amicus Curiae Brief — Kaiser Eagle Mountain, Inc. v. National Parks & Conservation Ass'n

1 uf

No. 10-548

In the

Supreme Court of the Gnited States

KAISER EAGLE MOUNTAIN, INC.,

AND MINE RECLAMATION CORPORATION,

Petitioners,

¥.

NATIONAL PARKS &

CONSERVATION ASSOCIATION, et al.,

Respondents.

A.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION AND BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS KAISER

EAGLE MOUNTAIN, INC., AND MINE

RECLAMATION CORPORATION

vv

M. REED HOPPER

Counsel of Record

BRANDON M. MIDDLETON

Of Counsel

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: mrh@pacificlegal.org

E-mail: bmm@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

]

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37(2), Pacific

Legal Foundation respectfully moves this Court for

leave to file an amicus curiae brief in support of the

Petition for a Writ of Certiorari filed by Kaiser Eagle

Mountain, Inc., and Mine Reclamation Corporation

(Kaiser).

Counsel of record for all parties received the

Foundation’s notice of intent to file a brief amicus

curiae at least ten days prior to the brief’s filing.

Counsel for Petitioners Kaiser, Respondents United

States Department of the Interior, et al., and

Respondent National Parks and Conservation

Association have consented in writing to this filing.

Consent letters have been lodged with the Clerk of this

Court.

Counsel for Respondents Donna Charpied, et ai.,

did not respond to Pacific Legal Foundation’s repeated

requests for consent to file. Pacific Legal Foundation,

therefore, respectfully submits this motion for leave to

file the attached amicus curiae brief.

~

Pacific Legal Foundation respectfully requests

that its motion for leave to file an amicus curiae brief

be granted.

DATED: November, 2010.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

BRANDON M. MIDDLETON

Of Counsel

Pacific Legal Foundation

2900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: mrh@pacificlegal.org

E-mail: bmm@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

QUESTION PRESENTED

Does a court err by vacating an agency’s action

and remanding for further administrative proceedings

that will have no effect on the agency’s decision or

serve any other substantive purpose?

ll

TABLE OF CONTENTS

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE ...............

QUESTIONS PRESENTED ............ atence ee

TABLE OF AUPTHUI Te cc ec ccs i ccans 1V

INTRODUCTION AND

SUMMARY OF ARGUMENT ............. 2

[. THIS COURT SHOULD

GRANT CERTIORARI BECAUSE

THIS CASE INVOLVES A CIRCUIT

CONFLICT OVER AN IMPORTANT

FEDERAL QUESTION ABOUT

THE SCOPE OF NEPA IN

DEFINING PROJECT OBJECTIVES ....... 4

A. Contrary to the Seventh and

Ninth Circuits, the D.C. Circuit

and Tenth Circuit Permit Agencies

to Consider Non-federal Objectives

in a Purpose and Need Statement....... 8

B. Contrary to the D.C. and Tenth

Circuits, the Ninth Circuit Joined

the Seventh Circuit in Erroneously

Removing the Discretion of Federal

Agencies To Consider a Mix of

Federal and Non-federal Goals

in a Purpose and Need Statement ...... 13

lll

TABLE OF CONTENTS—Continued

Page

Il. THE ENDLESS ADMINISTRATIVE

AND JUDICIAL HURDLES CREATED

BY THE NINTH CIRCUIT'S DECISION

ARE IMPORTANT TO FEDERAL

AND NON-FEDERAL PARTIES

THROUGHOUT THE COUNTRY

AND WARRANT REVIEW ...........

CONCLUSION .. es

lV

TABLE OF AUTHORITIES

Page

Cases

Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87 (1983) ...... 2

Citizens Against Burlington, Inc. v. Busey,

938 F.26a 190 (D.C. Ci. 1981) ..... 2... 4, 6-18

City of Alexandria v. Slater,

198 F.3d 862 (D.C. Cir. 1999) ......... 12-13, 15

City of Angoon v. Hodel,

803. F.2d 1016 (9th Cir. 1986) ............ 15-16

City of Carmel-By-The-Sea v. United States Dep't

of Transp., 123 F.3d 1142 (9th Cir. 1997) ...... 6

Colo. Envtl. Coal. v. Dombeck,

185 F.3d 1162 (10th Cir. 1999) .... 4, 6, 11-13, 17

Hoosier Environmental Council, Inc. v.

U.S. Army Corps of Engineers,

105 F. Supp. 2d 953 (S.D. Ind. 2000) ......... 16

Louisiana Wildlife Fed’n v. York,

761 F.2d 1044 (Sth Cir. 1985) .............. 6,9

Marsh v. Oregon Natural Resources Council,

490 U.S. 360 (1989) ........0 0. cee eee ee ee. 2

National Parks & Conservation Ass’n v. United

States Dept. of Interior, 606 F.3d 1058

(ie Car. BO)... we ee 2-4, 7, 13-15, 17-21

Robertson v. Methow Valley Citizens Council,

Me he Oe CIO) ik cece eeiaveeveeys a 3%

Roosevelt Campobello Int'l Park Comm'n v. EPA,

Gee £.c8 1061 (ist Cir, TORE) 26 ccc cc ccce ens 8

V

TABLE OF AUTHORITIES—Continued

Page

Simmons v. U.S. Army Corps of Engineers,

120 F.3d 664 (7th Cir. 1997) 4, 7, 16-17

Van Abbema v. Fornell,

807 F.2d 633 (7th Cir. 1986) 4,7, 16-17

Vermont Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 519 (1978)... 5, 8

Federal Statutes

42 U.S.C. § 43832(2)(C)

§ 4332(2)(C) (an)

49 U.S.C. APP. § 2201(a)

49 U.S.C. APP. § 2201(a)(7), (11)

Federal Regulations

40 C.F.R. § 1502.13

§ 1502.14(a)-(C)

§ 1508

Miscellaneous

48 Fed. Reg. 34,263 (July 28, 1983) ..

Czarnezki, Jason J., Comment, Defining the

Project Purpose under NEPA: Promoting

Consideration of Viable EIS Alternatives,

70 U. Chi. L. Rev. 599 (2003)

INTEREST OF AMICUS CURIAE'

Pacific Legal Foundation is a nonprofit, public

interest organization that provides a voice in the courts

for Americans who believe in limited government,

private property rights, and individual freedom.

Thousands of individuals, organizations, and

associations support the Foundation’s’ efforts

nationwide.

In this case, the Ninth Circuit has determined

that a federal agency may not take into account the

objectives of a private applicant when considering

alternatives for a joint federal-private project under

the National Environmental Policy Act (NEPA). This

crabbed reading of the Act raises an important

question about the scope of environmental review

under federal law and adds to a split among the

circuits. Resolution of this conflict would further the

public interest.

Pacific Legal Foundation participated as amicus

curtae in support of Kaiser’s petition for rehearing en

banc below and has participated in many Supreme

' Counsel of record for all parties received the Foundation’s notice

of intent to file a brief amicus curiae at least ten days prior to the

brief’s filing. Counsel for Petitioners Kaiser, Respondents United

States Department of the Interior, et al.,and Respondent National

Parks and Conservation Association have consented in writing to

this filing. Consent letters have been lodged with the Clerk of this

Court.

Counsel for Respondents Donna Charpied, et al., did not

respond to Pacific Legal Foundation’s repeated requests for

consent to file.

No counsel for any party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended to

fund the preparation of this brief. No person or entity, other than

Amicus, made a monetary contribution to its preparation.

Court cases involving NEPA. See, e.g., Robertson v.

Methow Valley Citizens Council, 490 U.S. 332 (1989);

Marsh v. Oregon Natural Resources Council, 490 U.S.

360 (1989); Balttmore Gas & Elec. Co. v. Natural

Resources Defense Council, Inc., 462 U.S. 87 (1983).

The Foundation’s amicus curiae brief in this case

emphasizes the _ significant conflict over the

requirements of a NEPA purpose and need statement

that exists between the Ninth Circuit’s decision below

and a similar decision from the Seventh Circuit and

contrary decisions from the D.C. Circuit and Tenth

Circuit. This conflict is described in detail in Pacific

Legal Foundation’s amicus curiae brief and provides a

compelling reason for this Court to grant Kaiser’s

Petition for a Writ of Certiorari.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is typical of the “result-oriented”

decisions from the Ninth Circuit with which this Court

is all too familiar. See National Parks & Conservation

Ass'n v. United States Dept. of Interior, 606 F.3d 1058,

1079 (9th Cir. 2010) (Trott, J., dissenting) (criticizing

the “result-oriented notion” that the Bureau of Land

Management’s purpose and need statement is

“narrowly drawn” as “utterly wrong”). In National

Parks, the Ninth Circuit invalidated the Bureau of

Land Management’s (Bureau) NEPA analysis of a

vitally important land exchange between the Bureau

and Kaiser. The land exchange is necessary to address

a “ ‘critical’ landfill capacity shortfall in Southern

California” and would lead to the development of “‘one

of the world’s safest landfills and a model for others to

emulate.’ ” Jd. at 1079, 1099 (internal citations

omitted).

The Ninth Circuit’s decision, however, overtur!

decades of work on this project by Kaiser, local

governments, and federal agencies. Under the Ninth

Circuit’s decision, NEPA has effectively become

something much more than a procedural statute—the

court in this case has forced the parties to “hit[] the

reset button ... unnecessarily sending [them] back to

a Sisyphean hill which cannot be climbed in a lifetime.’

Id. at 1078. (Trott, J., dissenting).

Indeed, the “final irony” of the Ninth Circuit’s

decision is that the court has sent this case “back to

the Bureau of Land Management .. . to do something

[it] has already adequately done: consider the value of

the land involved as a commercial landfill.” Jd. at

1075. (Trott, J., dissenting). The Ninth Circuit's

decision warrants review because the court has

unnecessarily remanded the case to the Bureau for

further, but needless, consideration. See Petitioners

Kaiser Eagle Mountain, Inc., and Mine Reclamation

Corporation’s Petition for Writ of Certiorari at 18.

The underlying problems on the merits of the

National Parks decision, however, cannot be ignored.

The Ninth Circuit determined that the Bureau’s NEPA

analysis was. deficient because the agency’s

Environmental Impact Statement acknowledged the

goals of Kaiser in proposing the land exchange to the

Bureau. See National Parks, 606 F.3d at 1070-72

(majority opinion). But nothing in NEPA or its

implementing regulations forecloses an agency from

recognizing non-federal objectives in considering the

purpose and need for the proposed action. See 42

U.S.C. § 4332(2)(C)(jii) (An Environmental Impact

Statement must discuss “alternatives to the proposed

action.”), and 40 C.F.R. § 1502.13 (An Environmental]

impact Statement ‘shall briefly specify the underlying

purpose and need to which the agency is re sponding in

proposing the alternatives including the proposed

action.’)

To the contrary, such a consideration is required

As Judge Trott cogently noted in dissent, “|o]f course

BLM acknowledged Kaiser's purpose — the law requires

BLM to do so! For private, non-federal proposals,

‘la]gencies are precluded from completely ignoring

a private applicant’s objectives.’” National Parks, at

1079 (Trott, J. Dissenting) (brackets and ellipses in

original dissent) (quoting Colo. Enuvtl. Coal. |

Dombeck, 185 F.3d 1162, 1175 (10th Cir. 1999), and

citing Citizens Against Burlington, Inc. v. Busey, 938

F.2d 190 (D.C. Cir. 1991)).

The Ninth Circuit’s decision in National Parks

also conflicts with D.C. Circuit and Tenth Circuit case

law regarding how an agency must write a NEPA

purpose and need statement “in a setting where a

private entity approaches a government entity with a

joint proposal that will benefit both.” National Parks,

606 F.3d at 1078 (Trott, J. dissenting). See Dombeck

185 F.3d at 1175 (Agencies . are precluded from

ignoring a private applicant's objectives.”) (citing

Burlington, 938 F.2d at 196). The Ninth Circuit has

joined the Seventh Circuit in effectively precluding an

agency from taking into account the “‘means by which

a particular applicant can reach his goals’” in pursuing

a project requiring federal approval. See Simmons v

U.S. Army Corps of Engineers, 120 F.3d 664, 669 (7th

Cir. 1997) (quoting Van Abbema v. Fornell, 807 I*.2d

633, 636 (7th Cir. 1986) and contrasting Burlington,

938 F.2d at 198-99)

Given this conflict, the adverse ramifications thi

Ninth Circuit's decision will have in this case, and thi

uncertainty the decision will cause for cooperative

projects between federal and non-federal partie

throughout the country, thi ourt should grant

Kaiser's petition

THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THIS CASE

INVOLVES A CIRCUIT CONFLICT OVER

AN IMPORTANT FEDERAL QUESTION

ABOUT THE SCOPE OF NEPA IN

DEFINING PROJECT OBJECTIVES

NEPA requires agencies to prepare Environmental!

Impact Statements for “major Federal action:

significantly affecting the quality of the human

environment.” 42 U.S.C. § 43832(2)(C) \)

Knvironmental Impact Statement must include a

discussion of “alternatives to the proposed action,” 42

U.S.C. § 4332(2)(C)(iil) Although “the term

‘alternatives’ is not self-defining,” this Court has held

that a “‘detailed statement of alternatives’ cannot be

found wanting simply because the agency failed to

include every alternative device and_ thought

conceivable by the mind of man,” and that “[t]ime and

resources are simply too limited to hold that an impact

statement fails because the agency failed to ferret out

every possible alternative, regardless of how

uncommon or unknown that alternative may have been

at the time the project was approved.” Vermont

Yankee Nuclear Power Corp. v. Natural Res. Def

Council, Inc., 435 U.S. 519, 551 (1978). Moreover. the

courts of appeals uniformly recognize “the harm that

an unbounded understanding of alternatives might

(D.C 7

Clarmel-By-The-S¢ rl Stal Deptof Trans;

LZ0 Sd 1142 L155) (9th Cou 1997) CT he

linvironmental Impact Statement need not consider at

infinite ranve of alternative

fea ple Ori (CcItINne OC. ] it

Ave ies are also obligated to “bmniefly pecily tl

inderlying purpose and need to which the agency 1

responding in proposing the alternative but the

courts disagree as to how 1 agency may ensure a

finite range ol alternatives to an agen iction through

i purpose and need tatement see 4 Cor R

2.13. There is indeed a “contlict of how to constru

the stated project purpose under NEPA” when thi

impetus behind the project is the proposal of a no

federal applicant. See Jason J. Czarnezki, Comment

Defining the Project Purpose under NEPA; Promot

Consideration of Viable EIS Alternative TOU. €

ite 99 619 (2003)

rhe Dt \) 1 i] fmency ma

delimit the universe the action reasonable

ilternatives by “considerjing| an apphcant’'s want

when the agency formulate th won Ow!

propo ed action Burlington VIS 8d ‘ . Lt

he ‘Tenth Circuit likewise holds that nen al

precluded irom completely InOring | privat

apphicant objective (folorado knovtl. Coal

Domobeck, 185 F.3d 1162, 1175 (10th Cir. 1999) (e1tins

( ens Against Burlington, 938 I°.2d at 196). See also

Lousiana Wildlife ked'n York, 761 F.2d 1044, 1048

(5th Cir. 1985) (per curtam) (“|The] contention, that the

iiternative mav not be viewed with the ipplicant

7

objectives in mind, is not substantiated by either case

law or the applicable regulations.”).

However, an agency's consideration of a non-

federal applicant’s objectives in a NEPA purpose and

need statement “is a losing position in the Seventh

Circuit,” which holds that an agency “cannot restrict

its analysis to those ‘alternative means by which a

particular applicant can reach his goals.’” Simmons,

120 F.3d at 669 (quoting Van Abbema, 807 F.2d at 638

and contrasting Burlington, 938 F.2d at 198-99).

According to the Seventh Circuit, consideration of non-

federal objectives is foreclosed in a purpose and need

statement because “the evaluation of ‘alternatives’

mandated by NEPA is to be an evaluation of

alternative means to accomplish the general goal of an

action; it is not an evaluation of the alternative means

by which a particular applicant can reach his goals.”

Van Abbema, 807 F.2d at 638.

The Ninth Circuit in this case joined the Seventh

Circuit by prohibiting purpose and need statements

that “exclude[] alternatives that fail to meet specific

private objectives.” National Parks, 606 F.3d at 1072.

This rule of law is in direct conflict with then-Judge

Thomas’ admonition in Burlington that an agency’s

purpose and need statement is “shaped by the

application at issue” and that “Congress did expect

agencies to consider an applicant’s wants when the

agency formulates the goals of its own proposed

action.” Burlington, 938 F.2d at 199. The conflict over

an agency’s duty to consider the objectives of a non-

federal applicant in a NEPA purpose and need

statement is explained in greater detail below and

warrants review by this Court.

8

A. Contrary to the Seventh and Ninth

Circuits, the D.C. Circuit and Tenth

Circuit Permit Agencies to Consider

Non-federal Objectives in a Purpose

and Need Statement

In Burlington, the D.C. Circuit considered

whether the Federal Aviation Administration’s (FAA)

stated objectives for an airport expansion in Toledo

were reasonable. Burlington, 938 F.2d at 193-99. The

expansion plan involved the FAA, the Toledo-Lucas

County Port Authority (Port Authority), and

Burlington Air Express, Inc., a private company that

intended to relocate to Toledo pending the Port

Authority’s accommodation of its operations. Id. at

192.

As an initial matter, the court concisely

summarized the role agencies play in ensuring that

environmental impact statements do not “wither into

‘frivolous boilerplate’” by discussing a vast array of

“(f]ree-floating ‘alternatives’ to the proposal for federal

action.” Burlington, 938 F.2d at 195 (quoting Vermont

Yankee, 435 U.S. at 551). The court remarked that an

alternative is reasonable and must be discussed “only

if it will bring about the ends of the federal action.”

Burlington, 938 F.2d at 195. Thus, the goals of the

federal action, as set forth in the purpose and need

statement, “delimit the universe of the action’s

reasonable alternatives.” Jd.

The court next confirmed the primary role

agencies have both in discussing the alternatives and

defining the goals which limit the discussion of

alternatives: “We have held before that an agency

bears the responsibility for deciding which alternatives

to consider in an environmental impact statement... .

9

It follows that an agency thus bears the responsibility

for defining at the outset the objectives of an action.”

Id. at 195-96 (citations omitted). The court further

explained that an agency’s definition of objectives is to

be upheld “so long as the objectives that the agency

‘hooses are reasonable,” just as courts uphold an

agency’s discussion of alternatives “so long as the

alternatives are reasonable and the agency discusses

them in reasonable detail.” Jd. at 196.

Under this deferential standard, “an agency may

not define the objectives of its action in terms so

unreasonably narrow that only one alternative from

among the environmentally benign ones in the agency’s

power would accomplish the goals of the agency’s

action, and the EIS would become a foreordained

formality.” Jd. (citation omitted). But “[nJor may an

agency frame its goals in terms so unreasonably broad

that an infinite number of alternatives would

accomplish those goals and the project would collapse

under the weight of the possibilities.” Jd.

An agency ensures that its stated goal ina NEPA

action is neither unreasonably narrow _ nor

unreasonably broad by “look[ing] hard at the factors

relevant to the definition of purpose.” Jd. In other

words, “[w]hen an agency is asked to sanction a specific

plan, the agency should take into account the needs

and goals of the parties involved in the application,” as

well as the views of Congress as expressed in statutory

mandates. Jd. (citing 40 CF.R. § 1508.18(b)(4);

Louisiana Wildlife Fed’n v. York, 761 F.2d at 1048; and

Roosevelt Campobello Int'l Park Comm'n v. EPA, 684

F.2d 1041, 1046-47 (1st Cir. 1982)).

With these principles in mind, the D.C. Circuit

upheld the FAA’s purpose and need statement and

LO

explained why it was appropriate to consider the

interests of the Port Authority and Burlington Air

Express, not simply those of the FAA. The court

emphasized the agency’s narrow statutory mandate,

which is to “nurture aspiring cargo hubs,” not to

“determine the siting of the nation’s airports.”

Burlington, 938 F.2d at 197 (citing 49 U.S.C. APP.

§ 2201(a)(7), (11)) (other citations omitted). Congress

wanted the FAA to “facilitate the development of and

enhancement of such airports,” but left the precise

manner of accomplishing this mandate to the

discretion of the agency. See id. at 197 n.5 (quoting 49

U.S.C. APP. § 2201(a)). Thus, the FAA was entitled to

look beyond its administrative capacity in defining the

goals of the agency’s action. The agency validly “took

into account the Port Authority’s reasons for wanting

a cargo hub in Toledo,” including the Authority’s

expectations that the cargo hub would create hundreds

of full and part-time jobs and that “the expanded

airport, and Buriington’s presence there, [would]

attract other companies to Toledo.” Burlington, at 197-

98.

Under its deferential approach to agency action

under NEPA, the court upheld FAA’s purpose and need

statement: “Having thought hard about” the federal

and non-federal factors put before the agency, “the

FAA defined the goal for its action as helping to launch

a new cargo hub in Toledo and thereby helping to fuel

the Toledo economy,” and “evaluated the

environmental impacts of the only proposal that might

reasonably accomplish that goal—approving the

construction and operation of a cargo hub at Toledo

Express. It did so with the thoroughness required by

law.” Jd. at 198 (citation omitted).

L]

Importantly, the court also rejected the argument

that the FAA should have considered other ways in

which Burlington Air Express could have built a

permanent cargo hub, noting that “Congress did expect

agencies to consider an applicant’s wants when the

agency formulates the goals of its own proposed action.

Congress did not expect agencies to determine for the

applicant what the goals of the apphcant’s proposal

should be.” Jd. at 199. The FAA was not required to

“canvass the business choices that Burlington faced

when it considered leaving Fort Wayne” because

federal agencies have “neither the expertise nor the

proper incentive structure to do so (it has no

shareholders who would suffer from mistaken

judgments).” Jd. at 197 n.6.

Indeed, the court was not permitted to excise the

agency’s consideration of the Port Authority’s and

Burlington’s needs: “We are forbidden from taking

sides in the debate over the merits of developing the

Toledo Express Airport; we are required instead only

to confirm that the FAA has fulfilled its statutory

obligations.... All that this court decides today is that

the judgment was not uninformed.” /d. at 199 (citing

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 351 (1989)).

The Tenth Circuit followed the D.C. Circuit in

Dombeck, holding that “agencies . . . are precluded

from completely ignoring a private applicant’s goals.”

Dombeck, 185 F.3d at 1175 (citing Burlington, 938 F.2d

at 196). In Dombeck, Vail, a private company,

proposed to expand its existing ski area into a part of

the White River National Forest known as Category

lil. See Dombeck, 185 F.3d at 1165-66. Pursuant to its

authority over national forests, the Forest Service

12

approved Vail’s site-specific plan and completed a

NEPA review of the proposed expansion’s

environmental impacts. See id. at 1166. However,

after the NEPA review was completed, one individual

and various groups sued the Forest Service, claiming

that the agency “blindly adopted Vail’s articulated

purpose and need” for the expansion project. Jd. at

1175.

The Tenth Circuit rejected the plaintiffs’ claim,

holding that agencies are required to “take

responsibility for defining the objectives of an action

and then provide legitimate consideration to

alternatives that fall between the obvious extremes.”

Id. Under this deferential approach, the Forest Service

was well within its di cretion to consider “the White

River Forest Plan, prior Forest Service planning and

permitting decisions in accordance with the National

Forest Ski Area Permit Act of 1986, and Vail’s

expressed needs and goals, when drafting the

statement of purpose and need for the Category III

expansion environmental impact statement.” Jd.

(emphasis added).

Thus, the rule in Burlington and Dombeck is that,

where a project involves private parties, federal

agencies are not only permitted but required to

consider a mix of public and private goals in a purpose

and need statement. Because NEPA “does not

substantively constrain an agencys choice of

objectives; to the contrary, it is those very objectives

that provide the point of reference for a determination

whether an alternative is ‘reasonable’ in the first

place.” City of Alexandria v. Slater, 198 F.3d 862, 867

(D.C. Cir. 1999). These decisions provide agencies with

a necessary means to “ ‘delimit the universe of the

13

action’s reasonable alternatives’” and are in line with

a court’s obligation to review “whether an agency’s

objectives are reasonable, and whether a particular

alternative is reasonable in light of these objectives . . .

with considerable deference to the agency’s expertise

and policy-making role.” Id.

B. Contrary to the D.C. and Tenth

Circuits, the Ninth Circuit Joined the

Seventh Circuit in Erroneously

Removing the Discretion of Federal

Agencies To Consider a Mix of

Federal and Non-federal Goals in a

Purpose and Need Statement

The Ninth Circuit in this case was satisfied that

the Bureau’s purpose and need statement included an

“unquestionably ... valid BLM purpose”: the need to

meet long-term landfill demand. National Parks, 606

F.3d at 1071. It hkewise noted that “[o]ther circuits

have held that agencies must acknowledge private

goals.” Jd. at 1070 (citing Burlington, 938 F.2d at 196,

and Dombeck, 185 F.3d at 1175). However, in a sharp

contrast to Burlington and Dombeck’s approval of an

agency's consideration of non-federal objectives, the

court then proceeded to chide the Bureau for honestly

acknowledging that Kaiser has an interest in the land

exchange as well. National Parks, 606 F.3d at 1072.

The court took the agency to task for “requir[ing] that

Kaiser’s private needs be met” and _ excluding

alternatives that failed to meet Kaiser’s private

objectives. Id.

That is wrong. An agency’s purpose and need

statement cannot be invalid simply because it

considered public and private objectives and then

“define[d] goals for its action that fall somewhere

14

within the range of reasonable choices,” as the Bureau

did in this case. See Burlington, 938 F.2d at 196. This

is especially so given the ramifications to an agency if

it does not disclose private, non-federal objectives. As

Judge Trott observed: “[o]f course there is a private

purpose driving this project. But the project benefits

both parties, not just Kaiser. To isolate one without

factoring in the other is patently illogical.” National

Parks, 606 F.3d at 1078 (Trott, J., dissenting).

The majority in National Parks also expressed

concern that most of the alternatives considered by

BLM would result in Kaiser acquiring federal land.

See National Parks, 606 F.3d at 1072 (majority

opinion) (listing alternatives and observing that “[a]]]

of these options, save the No Action alternative, would

result in landfill development of some sort and would

require some portion of the land exchange to occur’).

It ruled that BLM arbitrarily excluded the

consideration of a landfill on other Kaiser property.

See id.

The majority opinion, however, conflicts with

Burlington because agencies are not required to

“canvass the business choices” faced by a private entity

that las chosen to pursue a project. Burlington,

938 F.2d at 197 n.7. If this view applied in the D.C.

Circuit, the FAA in Burlington would have been

required to analyze the alternative of Burlington Air

Express building a cargo hub somewhere else besides

Toledo. But this view was explicitly rejected by the

D.C. Circuit in Burlington. See id. at 198-99.

In addition, while the Bureau considered six

alternatives in National Parks compared to FAA's

consideration of only two alternatives in Burlington,

the majority chastised the agency for failing to

15

consider “several alternatives that would have been

responsive to the need to meet long-term landfill

demand, such as a landfill on other Kaiser property,

waste diversion, offsite landfill locations, landfill

mining, alternative Townsite locations, and aiternative

Townsite uses.” National Parks, 606 F.3d at 1072.

The court’s list of alternatives, however, has no

discernable limit and contradicts Burlington’s holding

that agencies may include “goals of an action [that]

delimit the universe of the action’s reasonable

alternatives.” Burlington, 938 F.2d at 195. See also

City of Alexandria, 198 F.3d at 867 (“[A]n alternative

is properly excluded from consideration in an

environmental impact statement only if it would be

reasonable for the agency to conclude that the

alternative does not ‘bring about the ends of the federal

action.’”) (quoting Burlington, 938 F.2d at 195).

Indeed, the Ninth Circuit impermissibly focused

on the general goal “to meet long-term landfill

demand,” National Parks, 606 F.3d at 1071, divorced

from “the application at issue” and “the goals of the

applicant’s proposal.” Burlington, 938 F.2d at 199.’

9

, The Ninth Circuit’s decision prohibiting agencies from

“exclud[ing] alternatives that fail to meet specific private

objectives,” National Parks, 606 F.3d at 1072, is a departure from

its prior recognition that an agency’s purpose and need statement

may address a a non-federal applicant’s needs. See City of Angoon

v. Hodel, 803 F.2d 1016, 1021-22 (9th Cir. 1986) (per curiam)

(holding that to preclude an agency from considering a non-federal

applicant’s needs “is to visit upon it a task that would involve

almost endless speculation). The majority in National Parks

attempted to distinguish Angoor, noting that the issue in Angoon

“was whether the Corps should issue a permit,” as opposed to land

exchange at issue in National Parks. National Parks 606 F.3d at

1071. But the Ninth Circuit’s analysis in Angoon was actually

(continued...)

16

This is the functional equivalent of the rule in the

Seventh Circuit that “the evaluation of ‘alternatives’

mandated by NEPA is to be an evaluation of

alternative means to accomplish the general goal of an

action; it is not an evaluation of the alternative means

by which a particular applicant can reach his goals.”

Van Abbema, 807 F.2d at 638.

The Van Abbema rule requires courts to invalidate

purpose and need statements which contain private,

non-federal objectives and allow agencies to consider

alternatives which reflect a mix of public and private

goals. Thus, the Seventh Circuit in Simmons

invalidated a purpose and need statement because it

did not articulate the general goal of water supply for

Illinois residents and instead referenced the specific

goal of a single reservoir for two localities—the single

reservoir had been proposed to the Army Corps of

Engineers by non-federal applicants as the means by

which to accomplish the general goal of water supply

for the residents. See Simmons, 120 F.3d at 667.

Following Van Abbema, the court in Simmons forced

the Corps to consider two or more sources of water

instead of a single reservoir, holding that an agency

“cannot restrict its analysis to those ‘alternative means

by which a particular applicant can reach his goals.’”

Id. at 669 (quoting Van Abbema, 807 F.2d at 638 and

contrasting Burlington, 938 F.2d at 198-99). See also

Hoosier Environmental Council, Inc. v. U.S. Army

Corps of Engineers, 105 F. Supp. 2d 953, 1000 n.23

(S.D. Ind. 2000) (“In [Simmons], the court noted

* (...continued)

based on the Corps’ purpose and need statement and not on the

fact that the validity of a permit was ultimately at issue. See

Angon, 803 F.3d at 1021.

y |

[Burlington’s| disagreement with its interpretation of

the proper scope of relevant alternatives, but continued

to apply the Van Abbema formulation.”). Compare

National Parks, 606 F.3d at 1072 (“The BLM may not

. adopt|] private interests to draft a narrow purpose

and need statement that excludes alternatives that fail

to meet specific private objectives.”) with Simmons,

120 F.3d at 669.

But the Van Abbema rule is not followed in the

D.C. Circuit or Tenth Circuit because it is premised on

“critical flaws.” See Burlington, 938 F.2d at 199. See

also Dombeck, 185 F.3d at 1174 (declining plaintiffs’

request to adopt Van Abbema rule).

Van Abbema’s “assertion that an agency must

evaluate ‘alternative means to accomplish the general

goal of an action” likewise “trouble|d]” the D.C. Circuit

in Burlington. Burlington, at 199 (quoting Van

Abbema, 807 F.2d at 638). As the D.C. Circuit noted,

[ljeft unanswered in Van Abbema ... is why

and how to distinguish general goals from

specific ones and just who does the

distinguishing. Someone has to define the

purpose of the agency action. Implicit in Van

Abbema is that the body responsible is the

reviewing court.... [H]owever, NEPA and

binding case law provide otherwise.

Burlington, 938 F.2d at 199.

In this case, the Bureau defined the purpose of the

land exchange in a manner that reflected a mix of

public and private goals, similar to the purpose and

need statements in Burlington and Dombeck. See

National Parks, 606 F.3d at 1071 (discussing four goals

13

in Bureau’s purpose and need statement).” Yet the

Ninth Circuit rejected the deferential approach to

agency decision-making under NEPA in favor of a

standard which limits agencies to consideration of only

ry’ 4 “ce ”” ~

general goals. This “general goals” standard is an

ambiguous concept that forecloses an agency’s ability

to respond to a proposal that “arouses the call for

action” and thereby establishes goals which “delimit

the universe of the action’s reasonable alternatives.”

Burlington, 938 F.2d at 195

sharp contrast to the Council on Environmental!

Quality’s own guidance regarding NEPA regulations

See 48 Fed. Reg. 34,263, 34,267 (July 28, 1983) (“There

is...no need to disregard the applicant’s purposes and

199. It also stands in

,

needs and common sense realities of a given situation

in the development of alternatives.”).

More importantly, National Parks conflicts with

D.C. Circuit and Tenth Circuit precedent, leaves public

and private parties uncertain “in a setting where a

private entity approaches a governmental entity with

a joint proposal that will benefit both,” and should

accordingly be reviewed by this Court. See National

Parks, 606 F.3d at 1078 (Trott, J., dissenting)

j ry ’ rT

‘he majority's mischaracterization of securing a “long-term

income source” provided by the landfill as a private objective

instead of a public goal underscores its failure to abide by the

deferential role courts play in reviewing NEPA purpose and need

statements. See Petitioners Kaiser Kagle Mountain, Inc., and

Mine Reclamation Corporation’s Petition for Writ of Certiorari at

yA |

THE ENDLESS ADMINISTRATIVE AND

JUDICIAL HURDLES CREATED BY THE

NINTH CIRCUIT'S DECISION ARE

IMPORTANT TO FEDERAL AND NON-

FEDERAL PARTIES THROUGHOUT THE

COUNTRY AND WARRANT REVIEW

The Ninth Circuit halted a landfill project that

would have addressed “a ‘critical’ landfill capacity

shortfall in Southern California. National Parks, 606

F.3d at 1079 (Trott, J., dissenting) (citing

administrative record). But Kaiser’s project would ot

only have benefitted Californian residents—the landfill

would also have been the first to comply with new

Environmental Protection Agency guidelines and could

have become “‘one of the world’s safest landfills and a

model for others to emulate.” Jd. at 1075, 1077-78

(quoting Technical Advisory Panel composed of

eminent scientists and engineers from major California

Universities) (emphasis in dissent omitted) [n

addition, the land given up by Kaiser under the land

exchange would have enhanced contiguous federal land

in Southern California that protects endangered and

threatened species See id. at 1082-84 (citing

administrative record)

Despite Kaiser's cooperation with ‘tate and

federal agencies for nearly two decades in order to

achieve these laudable goals, the project’s statu

remains uncertain See Petitioners Kaiser Eagle

Mountain, Inc., and Mine Reclamation Corporation’

Petition for Writ of Certiorari at 32-35. The Ninth

Circuit has remanded the case to the Bureau “to do

something BLM has already adequately done: consider

the value of the land involved as a commercial!

landiill ending the parti back toa Sisypheun hi

which cannot be climbed in a lifetime Vationa

Parks, 606 F.3d at 1075, 1078 (Trott, J., dissentiny)

he delay in this case has already cost Kaiser million

f dollars and speaks ill of the administrative and

udicial proce eos. See td. at 1076 (notiny th it Kase)

ain attempt to accomplish its goals” has cost it mor

than $50,000,000). As Judge ‘Trott asked Ihlow many

of the people who started this project are still employed

by Kaiser, are still in public service, or for that matter

ire still alive? Yet, the process has developed an

eternal life of its own as full employm« nt forall swept

iliong with or bv it ld. at 10%

he vnihicance Of leaving the panel majority

pinion in place is best summarized in the opening

line yf Judge Trott di} ent What ine person

would want to attempt to acquire property tor a

landhill? Our well-mean renvironmental laws have

unintentionally made ucn in endeavor i fool

errand. National Pari HO6 | qat lv »(irott

d enting)

Judge Trott s points are appropriate and relevant

to Kaiser and all private entities that wish to work

cooperatively with federal agencr Cf. td. at lOMZ

(“Of course Katser has its own yvoals it hopes

iccomplish from this project, and of course it hopes to

make profit, but it seems blindingly apparent that it

voauls dovetail with the public’s need for a landfill.”)

Navivating through the administrative state is difficult

enough, especially when the voyage ts fraught with the

uncertain specter of litigation At a certain point

howeve ¥ the hurdles become foo burde nsome and i

company will choose to go no further in the pursuit olf

i publi objective Thi Court review of Nattonal

a |

Parks is, therefore, necessary to ensure that the Ninth

Circuit’s decision does not lead to this disturbing

consequence for projects throughout the country.

&

4

CONCLUSION

Review of National Parks is warranted because (in

addition to the Seventh Circuit) the Ninth Circuit’s

.ecision conflicts with decisions from the D.C. Circuit

and Tenth Circuit and leaves federal and non-federal

parties uncertain in circumstances “where a private

entity approaches a government entity with a joint

proposal that will benefit both.” Jd. at 1078. If allowed

to stand, National Parks is likely to lead regulated

entities to grow “weary ... and throw in the towel,

thwarted and defeated not by substance, but by

interminable process.” Jd. This is contrary to the

public interest.

For these reasons, Amicus Pacific Legal

Foundation urges this Court to grant the petition for a

SD D

writ of certiorarl.

DATED: November, 2010.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

BRANDON M. MIDDLETON

Of Counsel

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: mrh@pacificlegal.org

E-mail: bmm@pacificlegal.org

Counsel for Amici:s Curiae

Pacific Legal Foundation