Concerned Rosebud Area Citizens v. Babbitt, Civ.A. 98-2841(JGH).

• Decision Date: 21 January 1999
• Docket Number: No. Civ.A. 98-2841(JGH).,Civ.A. 98-2841(JGH).
• Citation: 34 F.Supp.2d 775
• Parties: CONCERNED ROSEBUD AREA CITIZENS, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the United States Department of the Interior and Kevin Gover, Assistant Secretary for Indian Affairs, United States Department of the Interior, Defendants.
• Court: U.S. District Court — District of Columbia

Page 775

34 F.Supp.2d 775

CONCERNED ROSEBUD AREA CITIZENS, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the United States Department of the Interior and Kevin Gover, Assistant Secretary for Indian Affairs, United States Department of the Interior, Defendants.

No. Civ.A. 98-2841(JGH).

United States District Court, District of Columbia.

January 21, 1999.

Katherine Anne Meyer, Meyer & Glitzenstein, Washington, DC, James Bryan Dougherty, Washington, DC, Gretchen G. Biggs, Boulder, CO, Concerned Rosebud Area Citizens, Prairie Hills Audubon Society of Western South Dakota, Humane Farming Association, plaintiffs.

Rollin Anthony Rogers, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Bruce Babbitt, Secretary of the Interior federal, Indian Affairs federal, defendants.

ORDER

JOYCE HENS GREEN, District Judge.

In this case, plaintiffs (hereafter collectively "Concerned Citizens") challenge the decision of the Interior Department's Bureau of Indian Affairs ("BIA") to approve a lease between the Rosebud Sioux Tribe and Sun Prairie, a Nebraska general partnership, for purpose of constructing and operating a sizable "pork production facility" (hereafter "the Facility"). See 25 U.S.C. §§ 81, 85 (requiring approval by the Secretary of Interior and consent of the United States for contracts with Indian Tribes concerning property). The parties agree that BIA's lease approval was a major federal action requiring the Government to review the environmental consequences of the proposed action under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(C). The result of BIA's environmental inquiry was a Finding of No Significant Impact ("FONSI") from the proposed facility. Concerned Citizens challenge that finding, and BIA's lease approval based thereon, on procedural and substantive grounds. Two days before Christmas, Concerned Citizens asked the Court to preliminarily suspend the lease approval pending final resolution of this case.

Rather than respond to the motion for preliminary injunction, the Government filed motions to stay this litigation and to transfer the action to the United States District Court for the District of South Dakota. This Court denied the motion to stay on January 12, 1999 and held a public hearing on the motion to transfer this date.

Certain factual representations were made to the Court which are repeated herein and are relied upon by this Court in making her ruling. The Rosebud Sioux Tribe inhabit an economically depressed area. The Tribal Government has agreed to the lease because construction and operation of the Facility will result in increased employment for the Rosebud Sioux. Bell Farms, which will operate the Facility on Sun Prairie's behalf, is one of the largest pork producers in the United States.

Not all members of the Tribe agree that the economic benefits from the lease are worth the environmental costs, and some of those dissident members are also members in the plaintiff organizations.

As of this date, at least eight of 24 buildings planned for Site 1 of the Facility are under construction. Construction on a ninth building began but has temporarily ceased.

Assistant Secretary Gover's position on behalf of the Department of the Interior is that the United States will use all of its powers to cease any further construction beyond the eight buildings in progress and to prevent any operations from commencing until after plaintiffs' motion for preliminary injunction has been resolved, regardless of which court decides it.

The Government concedes that venue for this action is proper in this Court but takes the position that South Dakota is a more convenient forum, primarily with respect to witnesses who may testify on the issue of injunctive relief. The Government argued that on the merits there are two issues in this case. First, the Government concedes that the validity of the lease must be decided solely on the basis of the administrative record. Second, the Government treats the issue of injunctive relief as being distinct from the lease-validity issue, and it suggests that it MAY call witnesses to ask the Court to allow Site I to operate even if the Court determines that the lease is invalid.

The Government is unsure about its need for witnesses because Assistant Secretary Gover is awaiting input from the United States Environmental Protection Agency ("EPA"), which previously urged BIA to conduct a broader study of the environmental impacts than was done, as to whether the design of Site 1 is environmentally sound. The Court inferred from Government counsel's description that these post-FONSI consultations concerning environmental impacts are taking place outside public view with no opportunity for notice or comment. Thus, the Government's entire argument in favor of transfer is...