Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm'n

• Decision Date: 09 August 2022
• Docket Number: 20-1489
• Citation: 45 F.4th 291
• Parties: OGLALA SIOUX TRIBE and Aligning for Responsible Mining, PETITIONERS v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, RESPONDENTS Powertech (USA), Inc., Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

45 F.4th 291

OGLALA SIOUX TRIBE and Aligning for Responsible Mining, PETITIONERS

v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, RESPONDENTSPowertech (USA), Inc., Intervenor

No. 20-1489

United States Court of Appeals, District of Columbia Circuit.

Argued November 9, 2021

Decided August 9, 2022

Jeffrey C. Parsons argued the cause for petitioners. With him on the briefs were Roger Flynn and Travis Stills.

James E. Adler, Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With him on the brief were Justin D. Heminger, Attorney, U.S. Department of Justice, and Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory Commission.

Christopher S. Pugsley argued the cause for intervenor-respondent Powertech (USA), Inc. With him on the brief was Anthony J. Thompson.

Before: Wilkins, Rao, and Jackson,^* Circuit Judges.

Rao, Circuit Judge:

The Oglala Sioux Tribe and its non-profit association Aligning for Responsible Mining seek review of the Nuclear Regulatory Commission's decision to grant Powertech (USA), Inc., a source material license to extract uranium from ore beds in South Dakota. The Tribe maintains that the Commission failed to meet its obligations under the National Environmental Policy Act and the National Historic Preservation Act. We deny the Tribe's petition because the Commission adequately complied with the relevant statutory and regulatory requirements.

I.

A.

Powertech sought to extract uranium from the Dewey-Burdock area, which spans over 10,000 acres in South Dakota and sits atop aquifers laced with uranium-rich ore beds. To remove the uranium, Powertech proposed using a process called "in situ recovery," which involves pumping an aqueous solution into underground ore beds to dissolve uranium; pumping the resulting solution back to the surface; and separating out the uranium for later processing into nuclear fuel. Powertech also planned to install monitoring wells to ensure its operations did not adversely affect the surrounding water quality.

Before beginning this project, Powertech was required to secure a license from the Commission. See 42 U.S.C. §§ 2014(z)(1), 2092 (prohibiting the transfer, delivery, or receipt of "source material" like uranium "after removal from its place of deposit in nature" without a license). The Commission's licensing process implicates a series of intersecting statutory and regulatory requirements.

The Atomic Energy Act of 1954 ("AEA"), Pub. L. No. 83-703, 68 Stat. 919 (codified as amended at 42 U.S.C. § 2011 et seq. ), and its implementing regulations set forth the Commission's procedures for licensing. When the Commission receives a license application, it publishes a notice of the proposed action in the Federal Register. 10 C.F.R. § 2.105. If a party seeking to intervene in the process can show it would be impacted by the license and that there is at least one genuine and material dispute on a factual or legal issue, the Commission must grant the intervenor a hearing. 42 U.S.C. § 2239(a)(1)(A) ; 10 C.F.R. § 2.309(a), (d), (f)(1). The Commission may delegate these adjudicatory responsibilities to a three-member Atomic Safety and Licensing Board ("Licensing Board"), 42 U.S.C. § 2241(a) ; 10 C.F.R. § 2.321, the decisions of which are reviewable by the Commission, 10 C.F.R. §§ 2.341, 2.1212. The Commission appointed a Licensing Board to adjudicate challenges to Powertech's license, and the Tribe intervened in those proceedings.

The licensing process also requires the Commission to comply with the National Environmental Policy Act ("NEPA"), Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. § 4321 et seq. ). NEPA requires all federal agencies proposing a "major Federal action[ ] significantly affecting the human environment" to prepare "a detailed statement" analyzing the impacts of that action. 42 U.S.C. § 4332(2)(C). This environmental impact statement ("EIS") must discuss adverse impacts "which cannot be avoided," "alternatives to the proposed action," long- and short-term effects, and "any irreversible and irretrievable commitments of resources" involved in the action. Id. ; see also 10 C.F.R. § 51.20(b)(8) (specifying an EIS is required when issuing a source material license for uranium extraction). The Commission must publish a notice of intent to prepare an EIS, and it must conduct an "appropriate scoping process" with those affected by the proposed action to determine the issues and impacts that will be analyzed in the EIS. 10 C.F.R. §§ 51.26(a), 51.27(a), 51.28, 51.29(a). In particular, the Commission must invite "[a]ny affected Indian tribe" to participate in the scoping process, id. § 51.28(a)(5), and analyze "significant problems and objections raised by" those tribes in the EIS, id. § 51.71(b); see also id. § 51.90.

Powertech's license also implicated Section 106 of the National Historic Preservation Act ("NHPA"), which requires an agency, "prior to the issuance of any license, [to] take into account the effect of the undertaking on any historic property." 54 U.S.C. § 306108 ; see also NHPA, Pub. L. No. 89-665, § 106, 80 Stat. 915, 917 (1966). "Historic property" is defined capaciously to include "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register [of Historic Places]" or any "artifacts, records, and material remains relating" to such. 54 U.S.C. § 300308. Before issuing a license, the Commission must "consult with any Indian tribe ... that attaches religious and cultural significance to historic properties that may be affected" by the license, giving tribes a "reasonable opportunity" to identify concerns and help resolve any adverse effects. 36 C.F.R. § 800.2(c)(2)(ii). In light of the substantial overlap between the NHPA and NEPA inquiries, an EIS "should include consideration of the ... likely effects on historic properties." Id. § 800.8(a)(1); see also id. § 800.8(c) (allowing agencies to use the NEPA process in lieu of the normal Section 106 process).

B.

With respect to NEPA and NHPA compliance, the agency¹ had already prepared a "generic" EIS in 2009 to address the environmental impacts of in situ recovery methods within the broader region in which the Dewey-Burdock Project is located. The agency was also required to create a supplemental EIS to address the specific impacts of Powertech's project. See 10 C.F.R. §§ 51.20(b)(8), 51.92. Only the supplement is at issue in the Tribe's petition. The agency initiated the EIS process by inviting twenty tribes that could be affected by Powertech's operations and requested assistance with identifying cultural and historical resources, including sites, objects, and other resources that carry cultural or religious significance. The Oglala Sioux Tribe was among those invited to participate.

By 2012, the agency and participating tribes settled on several preliminary conclusions. First, the tribes’ involvement was essential as they possessed an "intimate cultural knowledge" of the Dewey-Burdock area and could identify "not only site-specific physical impacts, but intangible impacts to the integrity of the area from cultural, historical, spiritual, and religious perspectives." Second, it was necessary to survey the area to identify those impacts. The Oglala Sioux Tribe disagreed, however, with respect to the methods for surveying the Dewey-Burdock area. When negotiations over the survey broke down, the Commission issued a draft EIS for public comment in late 2012 and explained it would later survey the area and supplement the EIS as necessary.

In 2013, the Commission conducted a field survey of the Dewey-Burdock area with seven participating tribes ("2013 Survey") and received reports from three tribes identifying cultural resources and historic properties in the area. The Oglala Sioux Tribe refused to participate because it disapproved of the 2013 Survey's methods and timing, as well as the amount of compensation provided for participating. Using the reports from the other tribes, the Commission prepared and issued a final EIS in January 2014. A few months later, it issued Powertech a license and finalized a "programmatic agreement" that established a protocol for dealing with NHPA historic properties discovered after Powertech begins operating. See 36 C.F.R. §§ 800.4(b)(2), 800.14(b) (permitting the Commission to create protocols to identify and protect historic properties after the issuance of a license).

C.

The Tribe intervened before the Licensing Board assigned to Powertech's application and raised numerous challenges to the application and the agency's NEPA and NHPA processes. The Board found only some of the Tribe's contentions merited a hearing, and later found most of those claims meritless. The Board determined, however, that the license was issued without individually consulting the Tribe as required by the NHPA and without evaluating the Tribe's cultural resources in the EIS as required by NEPA. The Commission affirmed the Board's finding of NEPA and NHPA violations but left the license in place because the Tribe had failed to show "irreparable harm."² See Oglala Sioux Tribe v. NRC (Oglala Sioux I ), 896 F.3d 520, 522–23 (D.C. Cir. 2018) ; see also id. at 532–33 (rejecting the Commission's "irreparable harm" standard and remanding without vacatur of the license).

The agency sought to remedy the NEPA and NHPA deficiencies by meeting with the Tribe, teleconferencing, and exchanging letters. Eventually, the agency offered to conduct another survey. But the Tribe maintained its objections, leading the agency to abandon its efforts, return to the Licensing Board, and argue it had done enough to satisfy NEPA and the NHPA. In its 2017 decision, the Board partially agreed, finding the Commission had reasonably consulted with the Tribe for NHPA purposes but still needed to work with the Tribe to identify cultural resources under NEPA.

By March 2018, the agency and the...