All Indian Pueblo Council v. U.S., 90-2225

• Decision Date: 17 September 1992
• Docket Number: No. 90-2225,90-2225
• Citation: 975 F.2d 1437
• Parties: 23 Envtl. L. Rep. 20,473 ALL INDIAN PUEBLO COUNCIL; San Ildefonso Pueblo; Santa Clara Pueblo; San Juan Pueblo; Jemez Pueblo; Save the Jemez; Sierra Club, Plaintiffs-Appellants, v. The UNITED STATES of America; Donald Hodel, Secretary of the United States Department of the Interior; Ross Swimmer, Assistant Secretary of the United States Department of Agriculture; Sidney L. Mills, Area Director for Albuquerque of the Bureau of Indian Affairs; Robert Buford, Director of the United States Bureau of Land Management; Richard Lyng, Secretary of the United States Department of Agriculture; Dale Robertson, Chief of the United States Forest Service; John Harrington, Secretary of the United States Department of Energy; Public Service Company of New Mexico; and Los Alamos County, New Mexico, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1437

975 F.2d 1437

23 Envtl. L. Rep. 20,473

ALL INDIAN PUEBLO COUNCIL; San Ildefonso Pueblo; Santa

Clara Pueblo; San Juan Pueblo; Jemez Pueblo;

Save the Jemez; Sierra Club, Plaintiffs-Appellants, v. The UNITED STATES of America; Donald Hodel, Secretary of

the United States Department of the Interior; Ross Swimmer,

Assistant Secretary of the United States Department of

Agriculture; Sidney L. Mills, Area Director for Albuquerque

of the Bureau of Indian Affairs; Robert Buford, Director of

the United States Bureau of Land Management; Richard Lyng,

Secretary of the United States Department of Agriculture;

Dale Robertson, Chief of the United States Forest Service;

John Harrington, Secretary of the United States Department

of Energy; Public Service Company of New Mexico; and Los

Alamos County, New Mexico, Defendants-Appellees.

No. 90-2225.

United States Court of Appeals, Tenth Circuit.

Sept. 17, 1992.

Alletta d'A. Belin, Shute, Mihaly & Weinberger, Santa Fe, N.M. (Grove T. Burnett, Glorieta, N.M., with her on the brief), for plaintiffs-appellants.

Katherine W. Hazard, Atty., Dept. of Justice, Washington, D.C. (Richard B. Stewart, Asst. Atty. Gen., and Robert L. Klarquist, Atty., with her on the brief), for defendants-appellees.

Henry F. Narvaez, of Keleher & McLeod, P.A., Albuquerque, N.M. (Margaret E. Davidson and Susan G. Lowrey of Keleher & McLeod, P.A., Albuquerque, N.M., and James W. Moorman and David F. Williams, Cadwalader, Wickersham & Taft, Washington, D.C., with him on the brief), for appellee Public Service Co. of N.M.

Daniel A. Najjar and Randy Bartell, Sutin, Thayer & Browne, P.C., Santa Fe, N.M., and Oliver Miles, County Atty., Los Alamos, N.M., for appellee Los Alamos County, N.M.

Before SEYMOUR and HOLLOWAY, Circuit Judges, and ROGERS, ^* United States District Judge.

HOLLOWAY, Circuit Judge.

Indian Pueblos and two environmental organizations challenge on procedural grounds and for alleged legal insufficiency an environmental impact statement (EIS) that the Bureau of Indian Affairs (BIA) prepared for the Ojo Line Extension Project, a proposed major electrical transmission line and associated substations to be built by the Public Service Company of New Mexico (PNM) and Los Alamos County, New Mexico. The plaintiff organizations present two principal issues on appeal: (1) whether the district court erred in upholding the decision by the Assistant Secretary of the Interior to deny the appellants an administrative appeal of the BIA's decision to issue the Record of Decision (ROD); and (2) whether, under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., the EIS adequately evaluated the proposed project, and alternatives to it. We affirm.

I

At the end of a major electric transmission line, Public Service Company of New Mexico's Norton Switching Station was designed to be a primary delivery point of power for the Santa Fe and Los Alamos areas. The Norton station currently is served by a single, 345 kilovolt (kV) transmission line. For several years PNM and Los Alamos County have proposed building a new 345 kV transmission line in order to link the Norton station to an existing 345 kV line, known as the San Juan-Ojo line, to the north. The new line would serve as an alternate major transmission source at the Norton Station in the event of an outage on the existing 345 kV line.

The proposed Ojo Line Extension (OLE) would consist of from 45 to 50 miles of overhead transmission line on a 150-foot right of way and associated substations. In and near the possible paths of the line are the Jemez Mountains, several Pueblos, and significant archeological sites, as well as tribal cultural and religious sites. Because of the possibility that federal agencies would be required to take action on the project to grant or approve rights of way, an environmental impact statement was prepared in compliance with NEPA. Acting as the lead agency for several federal agencies, see 40 C.F.R. § 1501.5 (1986), the Bureau of Indian Affairs formally began preparing an EIS for the project in late summer 1984. The BIA issued a draft EIS in October 1985. A comment period followed in late 1985 and early 1986. On August 15, 1986, the BIA issued a 242-page final environmental impact statement (FEIS) for the project.

The FEIS evaluated three major alternatives, including no action or "no approval of rights-of-way or construction." FEIS at xxii. The other alternatives discussed in the FEIS were two possible routes for the new transmission line: (1) a western route, upon which a line would be built in a generally northwesterly direction from the Norton station through the Los Alamos area and would intersect with the San Juan-Ojo line near Coyote, New Mexico; and (2) an eastern route, a path generally extending north of the Norton station through the Espanola area and connecting with the San Juan-Ojo line at the existing Ojo Switching Station. In addition, the agency analyzed two variations of each of the two proposed routes. The BIA Albuquerque office issued a record of decision (ROD) on September 26, 1986, which selected one of the two western corridor alternatives known as "W-2" as the route for the project.

II

In late October 1986, the appellants and the State of New Mexico filed an administrative appeal of the ROD challenging the legal sufficiency of the EIS and arguing that the route adopted violated the protections guaranteed by the First Amendment and the American Indian Religious Freedom Act, 42 U.S.C. § 1996. In letters of March 19, 1987, and April 3, 1987, the Assistant Secretary for Indian Affairs dismissed the appeals from the ROD. The letters stated that since the ROD ultimately selected an alternative route which bypasses all Indian lands, there was no substantive decision to be made by a BIA official in reference to the proposed project; any appeal would lie to other agencies having administration of lands to be crossed. Following the administrative denial of their appeal by the Assistant Secretary, the appellants filed this action in June 1987 claiming federal question jurisdiction under 28 U.S.C. § 1331. See I R. Doc. 1.

This action was brought in part under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, seeking judicial review of the Assistant Secretary's decision to deny the administrative appeal. I R. Doc. 1, at 12 (First Claim). The appellants sought an order mandating the BIA to hear the administrative appeal, id. at 16, or an order setting aside the FEIS and directing the agencies to prepare a new environmental impact statement, id. at 17. Further, the appellants sought a judicial determination that the final EIS was inadequate as a matter of law under NEPA. Id. at 14 (Fourth Claim). ¹

The district court resolved both the issues of the denial of an administrative appeal and the NEPA issues in separate grants of summary judgment in favor of the defendants. On August 25, 1989, the district court granted partial summary judgment in favor of the defendants on the plaintiffs' claim that they were improperly denied an administrative appeal. I R. Doc. 122. The court explained that it viewed the agency's dismissal of the appeal as a final order, that the BIA "contemplates no further action" on the claims, and that the appellants had exhausted the available administrative remedies. Id. at 2. The court stated that: plaintiffs had other remedies, namely judicial review by the district court; the plaintiffs had not been cut off from presenting additional testimony and would be allowed to move its admission regarding adequacy of the EIS at a later stage of the proceedings; and the doctrines of exhaustion of administrative remedies and primary jurisdiction did not apply because the BIA had no special expertise to review adequacy of the FEIS. Id.

After ruling on the APA claims, the district court on August 15, 1990, granted summary judgment in favor of the defendants on the NEPA issues by a written Memorandum Opinion and Order. I R. Doc. 128. ² In addressing the appellants' claim that the FEIS inadequately analyzed alternatives to the project, the district judge applied the rule that "if the FEIS is sufficient to inform a decision maker of the major alternatives, it thereby enables the agency to put forth a reasonable determination of the best alternative." Id. at 15. The judge explained that in making the ruling he had considered the agency's discussion of the four alternative routes, as well as the "no action" alternative, and had considered the other alternatives that the agency in the ROD explained it had "eliminated from further consideration" after addressing them in "minor detail." Joint App. of PNM tab 2, at 14 (ROD); see I R. Doc. 128, at 15-17. In conclusion, the district judge reasoned that the discussion of alternatives was adequate because the FEIS and the ROD "contain an adequate amount of information for the agency to make its decision that the W-2 alternative would best meet the project needs." I R. Doc. 128, at 17.

Concerning the appellants' remaining NEPA contentions, the district judge ruled that the FEIS adequately analyzed the environmental impact of the project. Addressing specific issues, the court ruled that the EIS adequately dismissed the potential impact of the project on the habitat of the Jemez Mountain salamander by referencing a study completed after the statement was prepared. I R. Doc. 128, at 4-5. The court concluded that the EIS also adequately addressed the potential impact of the power line on visual resources. Id. at 7. The judge noted that the agency in addressing the issue had acknowledged that "some impairment to visual resources" would occur, and had included in the EIS a description of the methodology used to assess visual impact. Id.

Further, the judge rejected the appellants' contention that the discussion of the impact on paleontological and cultural resources was insufficient in part because of the use of tables and charts. The...