Moapa Band of Paiutes v. U.S. Bureau of Land Mgmt.
| Decision Date | 06 October 2011 |
| Docket Number | Case No. 2:10-CV-02021-KJD-LRL |
| Parties | MOAPA BAND OF PAIUTES, et al., Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, et al., Defendants. and NEVADA POWER COMPANY, Intervenor-Defendant |
| Court | U.S. District Court — District of Nevada |
Before the Court is Plaintiffs Moapa Band of Paiutes and Sierra Club, Inc.'s Motion for Summary Judgement (#36). The Federal Defendants filed an Opposition and Cross-Motion for Summary Judgment (#41). Intervenor-Defendant Nevada Power Company ("NPC") also filed an Opposition and Cross-Motion for Summary Judgment (#42). Plaintiffs responded (#44) and the Federal Defendants and the Intervenor-Defendant replied (##45, 46). The Court rules on these motions together herein.
In April of 2006, the Bureau of Land Management ("BLM") Las Vegas Field Office received an application from NPC requesting a right of way ("ROW") grant to construct, maintain, and operate new evaporation ponds and an expanded solid waste landfill (the Expansion) for the Reid Gardner Generating Facility in Clark County, Nevada. NPC is seeking to improve management of the wastewater evaporation process and provide adequate landfill space for byproducts of its operations including fly ash, bottom ash and solids from the evaporation ponds. The proposed Expansion would replace the facility's current evaporation ponds which sit in the flood plain of the Muddy River only a few feet about underground aquifers. It would also provide additional landfill space for ash.
The BLM sought public input as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et. seq., and held two public meetings for the purpose of determining environmental concerns. The BLM sent letters to stakeholders soliciting participation in these meetings. The BLM also invited the Nevada Division of Environmental Protection, Clark County Department of Air Quality and Environmental Management, the Bureau of Indian Affairs ("BIA"), and Southern Nevada Health District ("SNHD") to participate as cooperating agencies under NEPA.
In July of 2006, the BLM consulted with the Moapa Band of Paiutes and the Las Vegas Paiute Tribe pursuant to the National Historic Preservation Act. In August, 2006, BLM and NPC officials attended a Moapa Band of Paiutes Tribal Council meeting to discuss the Expansion. The Band (together with the Sierra Club "Plaintiffs") raised concerns over air quality and health issues and suggested various alternatives for evaluation. Plaintiffs also requested that BLM seek BIA's involvement in the NEPA process to ensure that the Band's interests would be adequately represented. In addition, Plaintiffs submitted a letter indicating the presence of desert tortoises and cultural resources within the proposed ROW. BLM officials consulted with Plaintiffs about an archaeological site that was not eligible for inclusion in the National Register of Historic Places ("NRHP") and BLM removed the area from the ROW.
In July 2007, the BLM provided notice for a 30-day public comment period for a draft of an Environmental Assessment ("EA") which examined impacts and alternatives to the Expansion. The BLM received six comments during this period. The finalized EA incorporated changes recommended by the BLM in response to the comments received during the public comments period.
On March 24, 2008 the BLM issued a Finding of No Significant Impact ("FONSI") and a Decision Record approving the Expansion. The ROW was issued on June 20, 2008. Plaintiffs filed suit in November 2010 challenging the ROW under the Federal Land Policy Management Act ("FLPMA") 43 U.S.C. §§ 1701 et. seq., and NEPA.
Summary judgment should be granted when the record evidence shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
District courts review the actions of the BLM under the Administrative Procedure Act ("APA"). See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61 (U.S. 2004). "The APA does not allow the court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts." River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citations omitted). Instead, a court must set aside agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency decisions are overturned:
only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir. 2011) (citations and quotations omitted). River Runners, 593 F.3d at 1070 (citations, quotation marks, alterations omitted).
BLM manages public lands under its control in accordance with FLPMA, which states that BLM "shall manage the public lands under principles of multiple use and sustained yield . . . except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law." 43 U.S.C. § 1732(a). This multiple-use principle "breathe[s] discretion at every pore." Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975). Plaintiffs contend that BLM violated FLPMA by failing to comply with existing BLM policies and by failing to consider unnecessary and undue degradation.
The APA instructs reviewing courts to take "due account ... of the rule of prejudicial error." 5 U.S.C. § 706. "If the agency's mistake did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration." PDK Laboratories Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) See also Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007) (). In the Ninth Circuit, "consistent caselaw" has held that "harmless error" requires a determination that the error "had no bearing on the procedure used or the substance of [the] decision reached." Cal. Wilderness Coal. v. U.S. Dept. of Energy, 631 F.3d 1072, 1092 (9th Cir. 2011). See also Kazarian v. U.S. Citizenship and Immigration Servs., 596 F.3d 1115, 1122 (9th Cir. 2010) ().
Plaintiffs originally argued that, in granting the ROW, BLM violated its own policies prohibiting "permanent treatment, storage or disposal facilities for hazardous materials on publiclands," citing to BLM Manual 1703; 43 C.F.R. ¶ 2805.12(k); 43 C.F.R. ¶ 2807.20(b). Plaintiffs further contended that the waste material that would be stored on the ROW, including barium, chromium, and selenium, is defined as hazardous by BLM regulations. After BLM pointed out the version of Manual 1703 Plaintiffs cite is from 1995 and not the current version, Plaintiffs acknowledged that it is not binding on the agency.
However, according to Plaintiffs, the BLM itself relied on the 1995 version of Manual 1703 in granting of the ROW and determined that the waste in question was not hazardous. Plaintiffs argue that this "evidences a muddled decision-making process detached from any serious consideration of hazardous waste and the limits imposed on such waste by BLM rule and policy." (Plaintiffs' Response and Reply (#44) at 5.) According to Plaintiffs, this failure renders the decision of the BLM to grant the ROW arbitrary and capricious.
BLM contends that the error was harmless because the ROW is consistent with all applicable regulations at the time it was granted and BLM would have come to the same conclusion if it had relied on the current version of Manual 1703. BLM also argues that Plaintiffs' interpretation of BLM regulations as prohibiting permanent storage of hazardous waste is simply wrong and that the ROW includes terms and conditions allowing for disposal of hazardous materials.
The Court agrees with BLM's characterization of the use of the 1995 version of Manual 1703 as harmless error. Plaintiffs offer no argument that BLM would have reached a different conclusion had BLM used the most current version of Manual 1703 when it granted the ROW. Use of the 1995 manual had no bearing on the procedure or the substance of BLM's decision and, accordingly, is not a basis to vacate BLM's decision.
Plaintiffs also argue that BLM's current regulations do not permit permanent disposal of hazardous waste on public lands and that the ROW itself does not authorize permanent storage of hazardous materials. Neither of these claims has merit.
BLM's interpretation of the current version of Manual 1703 as permitting waste storage consistent with the ROW is based on BLM's Federal Register notice accompanying the regulations. See Rights-of-Way, Principles, and Procedures, 70 Fed. Reg. 20970, 21024 (April 22, 2005). BLM's interpretations of its own regulations, even those advanced in a legal brief, are entitled to deference "unless that interpretation is plainly erroneous or inconsistent with the regulation." Chase Bank v. McCoy, 131 S. Ct. 871, 880 (2011) (quotin...
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