National Indian Youth Council v. Andrus

• Decision Date: 22 August 1980
• Docket Number: No. 78-0586C.,78-0586C.
• Citation: 501 F. Supp. 649
• Parties: NATIONAL INDIAN YOUTH COUNCIL et al., Plaintiffs, v. Cecil D. ANDRUS et al., Defendants.
• Court: U.S. District Court — District of New Mexico

501 F. Supp. 649

NATIONAL INDIAN YOUTH COUNCIL et al., Plaintiffs, v. Cecil D. ANDRUS et al., Defendants.

No. 78-0586C.

United States District Court, D. New Mexico.

August 22, 1980.

COPYRIGHT MATERIAL OMITTED

John J. Kelly, Richard H. Hughes, Luebben, Hughes & Kelly, Albuquerque, N.M., for plaintiffs.

James B. Grant, Asst. U.S. Atty., Albuquerque, N.M., David C. Cannon, Jr., Dept. of Justice, Washington, D.C., for all U.S. defendants.

Victor R. Ortega and William C. Parsley, Montgomery, Andrews & Hannahs, Santa Fe, N.M., William A. Wise, Houston, Tex., for defendant-intervenor El Paso Natural Gas Co.

Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., T. S. Ellis, III, and D. Alan Rudlin, Hunton & Williams, Richmond, Va., for defendant-intervenor Consolidation Coal Co.

MEMORANDUM OPINION AND ORDER

CAMPOS, District Judge.

This litigation ensues from a surface mining (strip mining) project proposed for a tract in northwestern New Mexico on the Navajo Reservation. Plaintiffs consist of the National Indian Youth Council (NIYC), a nonprofit organization headquartered in Albuquerque, New Mexico, which characterizes its purpose as "preserving and protecting the traditional life-styles of Native American people";¹ and twelve individual members of the Navajo Tribe residing on the Reservation at Burnham, New Mexico.

Federal Defendants are officials of the United States Department of the Interior and include Cecil D. Andrus, Secretary of the Interior (Secretary), and Forrest J. Gerard, Assistant Secretary of the Interior for Indian Affairs.² Intervenor-Defendants are El Paso Natural Gas Company (El Paso) and Consolidation Coal Company (Consol).³

Plaintiffs have petitioned this Court for declaratory and injunctive relief based upon allegations that Defendants' approvals of (1) a mining lease executed in 1976 between Intervenors and the Navajo Tribe, and (2) a subsequent mining plan violate the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Section 4321 et seq.; the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. Section 470 et seq.; Exec.Order No. 11593, 3 C.F.R. Part 154 (1971 Compilation); the Historic and Archeological Data Preservation Act of 1974 (HADPA), 16 U.S.C. Section 469 et seq.; 36 C.F.R. Part 800 et seq.; and 40 C.F.R. Part 1501 et seq. Plaintiffs have also alleged that the approval of the lease by Defendants constitutes a breach of a fiduciary duty owed by Defendants to the individual Plaintiffs.⁴

At the close of the evidence on Plaintiffs' motion for a preliminary injunction, the parties indicated that there would be no further evidence to present at a hearing on the merits. Thus, this Court is able to bypass the preliminary injunction issues and decide the case on its merits pursuant to Rule 65(a)(2), Federal Rules of Civil Procedure, 28 U.S.C.⁵

BACKGROUND. In 1959, the Navajo Tribe granted a coal prospecting permit to El Paso for exploration of 85,760 acres on the Navajo Reservation. As a result of coal discoveries El Paso and Consol, as joint venturers, entered into a lease with the Navajo Tribe in 1968 for the extraction of an estimated 678,000,000 tons of coal on 40,286 acres located on the Burnham Chapter of the Reservation.⁶ The 1968 Lease was approved by the Secretary in December 1968.⁷ This was prior to the passage of NEPA in 1969.

During 1970 El Paso evaluated the potential of utilizing the leasehold for a coal gasification project and in 1973 proposed to the Tribe that two coal gasification facilities be installed on the leasehold.⁸ During 1973 and 1974 the Bureau of Reclamation (Reclamation), pursuant to NEPA, made environmental studies and analyses of the impacts of the proposed gasification project and alternatives. On July 16, 1974, Reclamation submitted its draft environmental statement, DES 74-77,⁹ to the Council on Environmental Quality (CEQ). DES 74-77 was also presented to other federal and state agencies and the public for review and comment. DES 74-77 addressed the environmental impacts associated with the proposed gasification project and the attendant surface mining and support activities.

In 1975, El Paso and Consol revised the proposed project, eliminating one of the gasification complexes. This revised plan divided the leasehold into two distinct mining areas. The northernmost 9,000 acres of the leasehold was designated as a thermal mine (Northern Mine), the coal from which was proposed to be used for direct commercial sale. The remaining acreage was designated as a gasification mine (Southern Mine). The production from this mine is intended to supply the coal requirements of the gasification facility.

In December 1975, Consol submitted a Mining and Reclamation Plan (1975 Mining Plan) to the United States Geological Survey (USGS), the Bureau of Indian Affairs (BIA), and the Navajo Tribe, in accordance with 25 C.F.R. Part 117. This mining plan described the revised project (ConPaso Project) and its environmental implications. The plan included, among other detail, descriptions of the proposed mining operations, the existing environment on the leasehold, potential impacts of strip mining, and measures to mitigate those impacts, including reclamation and revegetation associated with the ConPaso Project.

In 1976, the 1968 Lease was renegotiated between the Tribe and Intervenors. The revised lease (1976 Lease) encompassed the identical 40,286 acres of its predecessor but increased the Tribe's control over the operations, increased the financial benefits accruing to the Tribe, guaranteed preferential employment on the project for Tribe members, and designated certain procedures to be followed to protect the environment and paleontological and archeological resources on the leasehold. The 1976 Lease was executed on August 26, 1976.

On February 8, 1977, Reclamation issued its final environmental statement on the project, FES 77-03. FES 77-03 mentioned, but did not discuss, the changes in the proposed project that had occurred since the filing of DES 74-77.¹⁰ Reclamation did note in FES 77-03 that a subsequent environmental impact statement (EIS) would be prepared by BIA which would address the 1976 Lease and the 1975 Mining Plan and the environmental impacts of the ConPaso Project as revised.

The draft environmental statement issued by BIA, DES 77-04,¹¹ was submitted to CEQ on February 9, 1977. DES 77-04 was issued as a supplement to FES 77-03.¹² Following circulation for review and comment among the federal and state agencies and the public, BIA filed the final environmental statement, FES 77-13, on May 11, 1977.¹³ On July 1, 1977, the Tribe approved the 1975 Mining Plan. Shortly thereafter, the Secretary gave the Office of Surface Mining (OSM) the assignment of reviewing the 1975 Mining Plan and making recommendations as to its approval.¹⁴

On August 31, 1977, the Secretary approved the 1976 Lease based upon the information contained in FES 77-03 and FES 77-13. On October 23, 1978, Consol submitted a Restructured Mining and Reclamation Plan (1978 Mining Plan) to OSM. This revised mining plan was required by OSM after its examination of the 1975 Mining Plan. The 1978 Mining Plan addressed only the proposed mining operations and impacts for the Northern Mine. This Plan was subsequently approved by the New Mexico Coal Surface Mining Commission, the Tribe, USGS and BIA. On August 27, 1979, OSM issued an Environmental Assessment (EA) of the Plan. The EA was revised and reissued on November 2, 1979.

On January 11, 1980, Assistant Secretary Gerard issued a "Finding of No Significant Impact" (FONSI) with regard to the 1978 Mining Plan. The 1978 Mining Plan was given final approval that same day.

In Count One, Plaintiffs allege that the two FESs prepared in this case are inadequate, thereby violating NEPA. The four specific deficiencies propounded by Plaintiffs are (1) failure to adequately discuss the potential for unsuccessful land reclamation, (2) failure to adequately discuss other alternatives to the proposed action, (3) failure to adequately investigate and discuss the significance of archeological and paleontological resources on the leasehold, and (4) the failure to adequately discuss the human impacts upon the residents of the Burnham area.

Several threshold issues must be resolved before the adequacy of the environmental impact statement record (EIS record) can be addressed. First, there is an issue as to whether the 1979 CEQ regulations are applicable in this case.¹⁵ Second, there is a question as to what constitutes the EIS record upon which the NEPA-related issues should be decided. Third, there is an issue as to whether NEPA was violated by the Assistant Secretary in finding that no supplementation of the EIS record was required prior to the approval of the 1978 Mining Plan.¹⁶

The preliminary disposition of these three interrelated subissues is necessary for a proper resolution of the NEPA issues, although this method of analysis will require the Court to follow a somewhat regressive chronology.

APPLICABILITY OF THE 1979 CEQ REGULATIONS. The CEQ Regulations, 40 C.F.R. Parts 1501, et seq., are the detailed embodiment for NEPA through which its purposes are implemented. The revised regulations were designated effective July 30, 1979, subject to the following qualifications and exceptions:

These regulations shall apply to the fullest extent practicable to ongoing activities and environmental documents begun before the effective date. These regulations do not apply to an environmental impact statement or supplement if the draft statement was filed before the effective date of these regulations. No completed environmental documents need to be redone by reason of these regulations.... However, nothing shall prevent an agency from proceeding under these regulations at an earlier time. 40 C.F.R. Part 1506.12(a) (1979).

Plaintiffs contend that the Assistant Secretary's FONSI and the EA prepared by OSM to aid the Assistant...