Rose, J.
Plaintiff Michelle R. Bailey (hereinafter plaintiff) was traveling northbound on County Route 5 (also known as Crumtown Road) in the Town of Spencer, Tioga County on a clear, sunny day in June when she crested a hill and collided with a vehicle owned and operated by defendant Daniel C. Nickerson. Nickerson had been traveling southbound on Crumtown Road and was attempting to execute a left-hand turn onto Lang Road, which intersects with Crumtown Road just to the north of the crest of the hill on Crumtown Road. Although the speed limit on Crumtown Road is 55 miles per hour, some distance south of the intersection with Lang Road there is a sign advising a speed of 35 miles per hour for northbound drivers and warning of the upcoming intersection, but not that it is hidden by the crest of the hill.
Plaintiff was familiar with the intersection and testified that she slowed down to 40 miles per hour as she approached it. She could not see it, however, until after she crested the hill and, when she did, Nickerson's vehicle was there in her lane and she had no time to do anything to avoid the collision. For his part, Nickerson also was familiar with the intersection. He testified that he slowed down as he approached it to commence his left turn onto Lang Road, he did not see plaintiffs vehicle until it crested the hill from the south, but by then he had already commenced his turn and he also was unable to avoid the collision.
Plaintiffs commenced this action against Nickerson and defendant County of Tioga seeking to recover damages based on Nickerson's alleged negligent operation of his vehicle and the County's alleged negligent design of the intersection and failure to place appropriate signs and traffic control devices. After joinder of issue and discovery, motions for summary judgment were filed by the parties and denied by Supreme Court. Defendants appeal.
The County argues that the alleged inadequate design and lack of appropriate warning signs on the road cannot be considered proximate causes of the accident because of the parties' admitted familiarity with the intersection. We are not persuaded. "Proximate cause is ordinarily a factual issue for resolution by a jury and therefore it is `only [when] one conclusion may be drawn from the established facts [that] the question of legal cause . . . [may] be decided as a matter of law'" ( Dupell v Levesque, 198 AD2d 712, 713, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Further, "there may be more than one proximate cause of an accident" ( Ayotte v Gervasio, 186 AD2d 963, 964, affd 81 NY2d 1062).
While it is generally true that the failure to provide additional warnings regarding a road condition will not be deemed a proximate cause of an accident where the drivers in question are "well acquainted" with the intersection ( Atkinson v County of Oneida, 59 NY2d 840, 842), familiarity will not preclude liability as a matter of law where there is evidence that additional, binding traffic control devices would be appropriate and would, if followed, prevent the accident ( see Scheemaker v State of New York, 125 AD2d 964, 965, affd 70 NY2d 985). Here, in opposition to the County's motion for summary judgment, plaintiffs came forward with expert proof that the design of the intersection did not allow northbound drivers sufficient time to react to vehicles turning left onto Lang Road and that the 35 miles-per-hour advisory sign in place for northbound traffic, even if followed, was inadequate to prevent the accident because of the limited sight distances and the resulting insufficient time to react. Accordingly, we conclude that the record contains sufficient proof, when viewed in a light most favorable to plaintiffs, to create a question of fact as to whether the alleged negligence of the County was a proximate cause of the accident ( see Scheemaker v State of New York, 125 AD2d at 965; see also Alexander v Eldred, 63 NY2d 460, 469; Miller v Town of Fenton, 247 AD2d 740, 742; Dupell v Levesque, 198 AD2d at 713; Bailey v Honda Motor Co., 144 AD2d 119, 121, lv denied 73 NY2d 705).
As for Nickerson, he contends that he is entitled to summary judgment because the dangerousness of the intersection and the lack of adequate warning signs caused the accident. Based on his description of his actions prior to the collision, however, a jury could also conclude that he was insufficiently cautious in making the left-hand turn, especially in view of his own familiarity with the intersection. Thus, the existence of unresolved factual issues as to liability support the denial of Nickerson's motion for summary judgment, as well ( see Secore v Allen, 27 AD3d 825, 828-829; Premo v Lam, 222 AD2d 872, 873).
Ordered that the order is affirmed, with costs.
al resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas" and "[t]he degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources."
Id. § 1508.27(b).
According to the NEPA Task Force, minimum level EAs "typically: range from 10 to 30 pages in length; are developed by one author; require from 2 weeks to 2 months to complete; and cost between $5,000 and $20,000." The NEPA Task Force, Report to the Council on Environmental Quality; Modernizing NEPA Implementation 65 (Sept. 2003). By comparison, larger EAs "typically: range from 50 to more than 200 pages in length; are developed by an interdisciplinary team; require from 9 to 18 months to complete; and cost between $50,000 and $200,000." Id.
If the EA concludes that an EIS is not required, the agency must publish a finding of no significant impact ("FONSI"). The FONSI presents "the reasons why an action, not otherwise excluded, will not have a significant effect on the human environment and for which an
environmental impact statement therefore will not be prepared." Id. § 1508.13. It must include the underlying EA or a summary of it and note any other environmental documents related to it. Id.
In certain limited circumstances an agency may categorically exclude from environmental review a class of actions which do not "individually or cumulatively have a significant effect on the human environment." 40 C.F.R. § 1508.4. Where an agency action falls within a CatEx, an agency need not prepare an EIS or an EA.
The responsibility for designating CatEx's is delegated to individual federal agencies. 40 C.F.R. § 1507.3(b)(2)(ii) (requiring agencies to set "specific criteria" for what actions "normally do not require either an environmental impact statement or an environmental assessment"). In order to establish a CatEx, an agency must first publish it in the Federal Register, provide opportunity for public comment, and submit the CatEx to the Council for Environmental Quality ("CEQ") for review. 40 C.F.R. § 1507.3(a). Because CatEx's are published in the Federal Register and are subject to public comment and review, courts treat them as agency regulations. Citizens' Comm. to Save Our Canyons, 297 F.3d at 1023 n. 8. Thus, once an agency has established a CatEx, "its decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if a court determines that the decision was arbitrary and capricious." Id. at 1023.
V. Discussion and Analysis A. The Categorical Exclusion for the September 2004 Permit Renewal
As discussed above, Plaintiffs' challenges to OSM's approval of the 2004 Permit Renewal decision have been mooted by OSM's issuance of a superseding 2009 Permit Renewal. Accordingly, I do not address Plaintiffs' arguments. If Plaintiffs wish to challenge the usage of a categorical exclusion in the context of the 2009 Permit Renewal decision, they must do so in a different action.
B. The Environmental Assessment of BHP's 2005 Permit Revision Application
Plaintiffs argue that Defendants failed to comply with NEPA's procedural requirements in approving BHP's 2005 Permit Revision Application. Specifically, Plaintiffs argue Defendants should have completed an EIS before approving BHP's 2005 Permit Revision Application; the EA completed by Defendants was deficient; and Defendants should have completed a Supplemental EA or EIS.
1. EIS Required
For ease of reference, in structuring my opinion I have adopted the organization used by Plaintiffs in their Opening Brief. In the section discussing the 2005 Permit Revision, however, Plaintiffs' arguments are not easily compartmentalized and oftentimes overlap between different sections. Where appropriate, I have combined and arranged my discussion to avoid redundancy and confusion.
Plaintiffs urge that BHP's proposal to expand its mining operations by 3,800 acres will significantly affect the quality of the human environment, and, accordingly, OSM should have conducted an EIS before approving BHP's 2005 Permit Revision Application. In reviewing the 2005 Permit Revision EA/FONSI to determine whether an EIS should have been prepared, I must determine whether OSM acted arbitrarily and capriciously in concluding that the proposed action "will not have a significant effect on the human environment." This review has both a substantive and procedural component. See Davis, 302 F. 3d at 1112. "If the plaintiffs can demonstrate substantively that the [agency's] conclusion of non-significant effect on the environment represents a `clear error of judgment,' then that conclusion must be reversed." Id.
(quoting Utah Shared Access Alliance, 288 F.3d at 1213).
According to Plaintiffs, OSM guidelines required preparation of an EIS for BHP's 2005 Permit Revision Application, and OSM's failure to do so is "arbitrary, capricious, or otherwise not in accordance with law." The OSM guidelines at issue stipulate that an EIS will normally be prepared for the approval of a proposed mining and reclamation plan where:
Plaintiffs also argue that OSM failed to evaluate either the individual or cumulative impacts of BHP's expanded Area IV North operations upon tribal members and their customary rights and that the EA "lacks any discussion of mitigation or impacts to scientific, historic, or cultural resources known to exist in Area IV North." These arguments are discussed infra at pp. 32-37.
(a) The environmental impacts of the proposed mining operation are not adequately analyzed in an earlier environmental document covering the specific leases or mining activity; and
(b) The area to be mined is 1280 acres or more . . .; and
(c) Mining and reclamation operations will occur for 15 years or more.
DOI Departmental Manual, 516 DM 13.4(A)(4). Neither party contests that the proposed mining operation in the Permit Revision exceeds 1280 acres or will occur for fifteen years or more; instead, they contest whether earlier environmental documents adequately analyze the environmental impacts of mining in Area IV North.
These guidelines were promulgated pursuant to 40 C.F.R. § 1507.3(b)(2)(i), which requires an agency to adopt procedures including, among other things, "[s]pecific criteria for and identification of those typical classes of action: (i) [w]hich normally do require environmental impact statements."
As discussed above, although SMCRA limits the permit revision to a length of five years, BHP could, and likely would, seek renewal as a matter of right upon the permit's expiration. By way of illustration, mining in other parts of the Navajo Mine have been ongoing for over fifty years.
Although the provisions at issue in this case are guidelines, they were promulgated pursuant to notice and comment rulemaking. They are therefore treated as regulations for purposes of my review, and OSM's interpretation and application of them is due substantial deference. Even when such deference is appropriate, however, an agency's interpretation of its own regulations must be rejected when "plainly erroneous or inconsistent with the regulation." Mission Group Kan. v. Riley, 146 F.3d 775, 780 (10th Cir. 1998).
The plain language of the guidelines at issue in this case makes clear that only environmental documents which "cover[] thespecific leases or mining activity" at issue in the proposed mining operation can form the basis for a determination that an EIS is not normally required. DOI Departmental Manual, 516 DM 13.4 (emphasis added). "Specific" is an adjective denoting a "precise formulation or accurate restriction." Webster's Third New International Dictionary 2187 (1976). Thus, according to its own guidelines, only those environmental documents which contain a discussion of the precise area to be impacted by the proposed mining area are relevant in determining whether an EIS will normally be required.
The explanation provided at the time of promulgation further justifies a limited interpretation of 13.4(A)(4)(a). This provision was added to clarify the fact that "[i]t is not [OSM's] intent to prepare an EIS for mining and reclamation plans when the impacts are adequately covered in an EIS at an earlier stage (e.g., leasing)." National Environmental Policy Act; Revised Implementing Procedures, 46 Fed. Reg. 7487, 7488 (Jan. 23, 1981). This language suggests that OSM only intended to rely upon earlier environmental analyses where they addressed "a period or step in a process, activity, or development," or, more specifically, "one of two or more operations performed at different times but constituting a single procedure." Webster's Third New International Dictionary 2219 (1976) (defining "stage"). In other words, this guideline mirrors what is commonly referred to as "tiering" in the NEPA lexicon.
Defendants relied upon three EIS's (WESCO EIS, AR 28-1; Four Corners EIS, AR 29-1; and San Juan River Regional Coal EIS, AR 30-1, 30-132 to 239) and five EA's (1989 Navajo Mine EA, AR 31-1; 1991 Navajo Mine EA, AR 33-1; 1993 Navajo Mine EA, AR 35-1; 2000 Navajo Mine EA, AR 37-1; and 2001 Navajo Mine EA, AR 39-1) in determining that an EIS was not required. The WESCO EIS was prepared in 1976 by the Bureau of Reclamation in response to an application to construct and operate four coal gasification plants and the necessary support facilities. Among other issues, the EIS considered the impacts of expansions to the then-existing Navajo Mine, because those expansions would provide the coal for the project. See AR 28-55 to 28-86. These expansions were to occur in the southern portion of BHP's lease area, including a small portion of Area IV North. The Four Corners EIS was prepared by the Bureau of Reclamation in 1976, and addressed a variety of proposed revisions to the Four Corners Powerplant, as well as a proposed revision to the Navajo Mine. The San Juan River Regional Coal EIS was prepared in 1984 by the Bureau of Land Management in connection with anticipated coal leasing and development on non-tribal federal lands in San Juan, McKinley, Valencia, and Sandoval Counties in northwest New Mexico. The five cited EA's address the impacts of mining in other portions of the Navajo Mine.
Of these EISs and EAs, only the WESCO EIS contains any discussion and analysis of mining in Area IV North. This relevant discussion is, however, confined to the impacts of mining in only a small portion of Area IV North. See AR 28-51; 28-56. This does not constitute adequate analysis of the specific mining activity proposed in BHP's 2005 Permit Revision Application. As a result, the cited EISs and EAs fail to adequately analyze the specific mining activity proposed in BHP's 2005 Permit Revision Application. Furthermore, none of the cited EIS's were conducted as part of a tiered NEPA analysis. In light of the plain meaning of OSM's guidelines, approval of the 2005 Permit Revision Application is a type of action for which an EIS is normally prepared.
The WESCO EIS discusses, among other things: the existing human environment, see AR 28-131 to 28-335; the anticipated environmental impacts of the proposed activities, see AR 28-336 to 28-574; and proposed mitigation measures, see AR 28-575 to 28-598.
Although it is difficult to discern from the information in the record, the WESCO EIS appears to analyze approximately 950 acres, or 25%, of BHP's proposed expansion into Area IV North.
Although the 1989 EA arguably forms the basis of a tiered analysis, it contains no discussion of the impacts of mining in Area IV North.
Nevertheless, because these guidelines do not require preparation of an EIS, Defendants were not necessarily "arbitrary and capricious" in conducting an EA and issuing a FONSI for BHP's 2005 Permit Revision Application. 516 DM 13.4; see also National Environmental Policy Act; Revised Implementing Procedures, 46 Fed. Reg. 7487, 7487 (1981). This guideline does, however, create a presumption that an EIS will normally be prepared, and Defendants bear the burden of establishing why that presumption should not apply in this particular case. See Davis, 302 F.3d at 1117.
Defendants erroneously determined this was not the type of action for which an EIS would normally be required. As a result, they fail to establish why the presumption does not apply to BHP's 2005 Permit Revision Application. In light of this failure, I could require Defendant OSM to prepare an EIS. I think it most appropriate, however, to remand to OSM to provide it an opportunity to reassess its position in light of this ruling. OSM should be especially mindful of the context and intensity of the proposed 2005 Permit Revision in determining whether it may significantly affect the environment and require preparation of an EIS.
2. The EA Was Deficient
Plaintiffs also argue that the EA prepared by Defendants failed to adequately analyze the environmental impacts associated with the approval of BHP's 2005 Permit Revision Application.
a. Failure to Analyze Connected Actions
Plaintiffs assert that Defendants' failure to consider connected actions in its EA for BHP's proposed permit revision violates NEPA and is arbitrary, capricious, an abuse of discretion, and contrary to law. While the CEQ regulations do not specifically address how an agency is to determine the appropriate scope of an EA, some guidance may be found in the provisions relating to the scope of an EIS.
This conclusion logically follows from the fact that the EA forms the basis for determining whether an EIS is or is not necessary. If an EA is to serve this purpose, it must be similar in scope to the potential EIS. See Citizens' Comm. to Save Our Canyons, 297 F.3d at 1028 n. 13; see also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 998 (9th Cir. 2004) (finding that "the CEQ regulations implementing NEPA require that an agency consider connected actions and cumulative actions within a single EA or EIS." (emphasis in original) (quotations omitted)).
In order to allow for a meaningful discussion of the potential environmental effects of a proposed action, the CEQ regulations require agencies to consider all "connected actions" in a single EIS. "Connected actions" are defined as actions that are "closely related" to the action under review because the actions:
(i) Automatically trigger other actions which may require environmental impact
statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.
40 C.F.R. § 1508.25(a)(1). As the Tenth Circuit has recognized, "One of the primary reasons for requiring an agency to evaluate `connected actions' in a single EIS is to prevent agencies from minimizing the potential environmental consequences of a proposed action (and thus short-circuiting NEPA review) by segmenting or isolating an individual action that, by itself, may not have a significant environmental impact."
Citizens' Comm. to Save Our Canyons, 297 F.3d at 1028. Thus, courts often find actions to be connected where one action
could not occur without the other.
Id. at 1029.
Conversely, projects which have "independent utility" are not "connected actions." Utahns v. U.S. Dep't of Transp., 305 F.3d 1152, 1183 (10th Cir. 2002). The crux of the "independent utility" determination is "whether each of two projects would have taken place with or without the other. . . ." Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1229 (10th Cir. 2008) (emphasis added) (quoting Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006)).
Although, there appears to be some tension in the 10th Circuit's inconsistent usage of the terms "could" and "would" in determining whether an action is "connected" for purposes of NEPA analysis, the regulations make clear than an action is connected if it "[c]annot or will not proceed unless other actions are taken simultaneously." 40 C.F.R. § 1508.25(a)(1)(ii) (emphasis added). Thus, even though an action could conceivably occur without the previous or simultaneous occurrence of another action, if it would not occur without such action it is a "connected action" and must be considered within the same NEPA document as the underlying action.
Plaintiffs allege Defendants improperly failed to analyze the effects of the Burnham Road relocation in the 2005 Permit Revision EA. As the 2005 Permit Revision EA states, without approval of the 2005 Permit Revision Application, "The Burnham Road would not be moved and improved and the 50 additional acreswould not be disturbed." AR 14-26 (emphasis added). The Burnham Road Relocation lacks independent utility. It is, therefore, a connected action which should have been, but was not, analyzed in the 2005 Permit Revision EA. Defendants' failure to do so constitutes a violation of NEPA. On remand, Defendant OSM shall consider the environmental effects of the Burnham Road Realignment in connection with its analysis of BHP's 2005 Permit Revision Application.
Plaintiffs also challenge Defendants' failure to consider the impacts of its adoption of the ethnographic study and mitigation plan required in BHP's 2005 Permit Revision Application. The ethnographic study and the mitigation plan were not completed at the time of the permit revision EA, so OSM could not have considered them as connected actions. These challenges are considered infra at pp. 34-37 in relation to Plaintiffs' argument that Defendants failed to discuss mitigation of impacts on scientific, historic, or cultural resources at Area IV North and infra at pp. 42-45 in relation to Plaintiffs' argument that, in light of the completion of the ethnographic study and mitigation plan, OSM should have completed a Supplemental EA.
Defendants fail to address this argument in their Answer Brief.
b. Failure to Consider Reasonable Range of Alternatives
Plaintiffs next contend that Defendants failed to consider a reasonable range of alternatives in the EA in violation of NEPA.
The obligation to consider alternatives to the proposed action is at the heart of the NEPA process, and is "operative even if the agency finds no significant environmental impact." Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1277 (10th Cir. 2004) (quoting Highway J Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir. 2003)). In formulating an EA, an agency must "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E); 40 C.F.R. § 1508.9(b). An agency need only study reasonable alternatives, however, not those which are "remote, speculative . . ., impractical, or ineffective [sic]." Davis, 302 F.3d at 1121.
Reviewing courts measure the reasonableness of alternatives against two guideposts. "First, when considering agency actions taken pursuant to a statute, an alternative is reasonable only if it falls within the agency's statutory mandate. Second, reasonableness is judged with reference to an agency's objectives for a particular project." New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 709 (10th Cir. 2009) (citation omitted). The agency may not, however, "define the project so narrowly that it foreclose[s] a reasonable consideration of alternatives [sic]." Utah Envtl. Cong., 439 F.3d at 1195 (quoting Davis, 302 F.3d at 1119).
As stated in the purpose and need statement in the EA for the 2005 Permit Revision, Defendants' action was triggered by their statutory duty to decide whether to approve or disapprove BHP's 2005 Permit Revision Application. 2005 Permit Revision EA, AR 14-15. This purpose and need statement is reasonable in light of OSM's statutory responsibilities. Consistent with this purpose and need, Defendants considered in depth two alternatives in the 2005 Permit Revision EA: approval and disapproval of the 2005 Permit Revision Application. These alternatives are reasonable in light of the underlying purpose and need. They are not, however, reasonable in light of the scope of OSM's statutory authority and its actions in relation to the approval of the 2005 Permit Revision Application.
OSM also briefly considered but properly dismissed two statutorily required alternatives.
Pursuant to the regulations implementing SMCRA, Defendants had three possible courses of action upon receipt of BHP's 2005 Permit Revision Application: approval, approval with conditions, and disapproval. 30 C.F.R. § 773.7; see also Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 346 (6th Cir. 2006). As noted above, Defendants considered only alternatives that would approve or disapprove the 2005 Permit Revision in their EA. Even more troubling, despite its failure to consider explicitly the approval with conditions alternative or alternatives, such an alternative was actually adopted. Defendants argue that, although "the environmental assessment could have been much clearer and could have been crafted differently," the "administrative record reflects that effectively there was a third alternative" because "the decision notice effectively sets forth what it was that, that [sic] was considered and was adopted." Transcript of Oral Argument at 35-36.
I note that there is little support for this argument in the administrative record. Because I find Defendants' position improper even in light of this stated rationale, I do not determine whether this constitutes an impermissible post hoc rationalization for an otherwise improper action. See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988).
I recognize the danger of a slavish, overly formalistic adherence to legal requirements. If, in effect, Defendants considered this third alternative and reached the substantively same result, it would seem as if there is no true harm. NEPA, however, is a unique statute which elevates form over substance, focusing not on the outcome of a decision, but on the procedure followed in reaching it. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 737 (1998). It is
irrelevant whether a decision notice includes a discussion (either explicit or implicit) of an alternative. An agency must meaningfully consider and discuss alternatives in the process of reaching a decision. C.f. 40 C.F.R. § 1502.14 (describing the discussion of alternatives in an EIS and noting that it "should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public"); Or. Natural Desert Ass'n v. U.S. Bureau of Land Mgmt., 531 F.3d 1114, 1121 (9th Cir. 2008) (quoting 40 C.F.R. § 1502.14) (In the alternatives analysis, the agency must "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated"). Once the decision has been made without meaningful consideration of a reasonable alternative, the harm envisioned by NEPA has been done.
Furthermore, even if an EA effectively includes consideration of an alternative such that the agency has considered it in the decisionmaking process, NEPA demands more. One of NEPA's core purposes is to ensure "that an agency will inform the public that it has considered environmental concerns in its decision-making process." Krueger, 513 F.3d at 1177-78 (citing Utah Shared Access Alliance, 288 F.3d at 1207). A party reviewing an EA should not be forced to read between the lines to determine whether the agency has considered a reasonable alternative.
It bears repeating that the obligation to consider alternatives is at the heart of the NEPA process. By their own admission, Defendants "effectively" considered three alternatives, but only explicitly considered two alternatives. They may not fulfill their responsibility to consider reasonable alternatives meaningfully by "effectively" including an alternative in either the decision notice or the EA, especially where they adopted an alternative which was not explicitly considered. The existence of a viable but unexamined alternative renders an alternatives analysis, and the EA which relies upon it, inadequate. Cf. Or. Natural Desert Ass'n, 514 F.3d at 1121. Contrary to one of NEPA's primary purposes, the 2005 Permit Revision EA does not ensure the public that all reasonable alternatives were meaningfully studied, developed, and described. On remand, Defendants shall include a meaningful discussion of all reasonable alternatives — including approval with conditions.
It is debatable whether Defendants even "effectively considered" a third alternative in the manner required by NEPA and the implementing CEQ regulations. There is scant evidence in the EA or the Administrative Record that Defendants engaged in a meaningful comparative analysis of their chosen course of action with their explicitly considered alternatives.
I do not address the scope of conditions which Defendants could reasonably consider in approving a permit application. Defendants should, however, be mindful that the duty to consider all reasonable alternatives in the EA includes a duty to consider a reasonable scope of conditions which may be imposed consistent with the purpose and need of the project and its statutory authority. By way of reference, Defendants should refer to the detailed discussion of conditions in OSM's 1991 Navajo Mine EA. See AR 33-13 to 33-27.
c. Failure to Take a "Hard Look"
Plaintiffs also argue that, in the EA of BHP's proposed mine expansion, Defendants failed to take a "hard look" at impacts on Navajo Nation tribal members and the impact of continued permanent CCW disposal and use of CCW as minefill in the Navajo mine. They also argue that Defendants have failed to evaluate the means by which they will mitigate direct, indirect, or cumulative impacts to tribal members and their rights; scientific, historic, or cultural resources; and CCW disposal.
In order to comply with NEPA's "hard look" requirement, the 2005 Permit Revision EA "must not only reflect the agency's thoughtful and probing reflection of the possible impacts associated with the proposed project, but also provide a reviewing court with the necessary factual specificity to conduct its review." Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 781 (10th Cir. 2006) (quoting Comm. to Pres. Boomer Lake Park v. U.S. Dep't of Transp., 4 F.3d 1543, 1553 (10th Cir. 1993)). As the regulations make clear, however, an EA is not conducted in a vacuum. Where a broad environmental impact statement has been prepared on an entire program or policy, an EA prepared for an action within the scope of the already analyzed program or policy "need only summarize the issues . . . and shall concentrate on the issues specific to the subsequent action." 40 C.F.R. § 1502.20.
i. Failure to Evaluate Impacts on Customary Rights or their Mitigation
BHP's expansion into Area IV North will impact numerous customary use rights held by tribal members. See AR 03-3, 03-4. Plaintiffs argue that OSM has failed to "evaluate how or by what means direct, indirect, or cumulative impacts to tribal members and their rights will be mitigated." Plaintiffs' Opening Brief (Doc. 102) at 20. Defendants argue that "the Navajo Nation and BIA have extensively studied the issue of relocation." Defendants' Answer Brief (Doc. 111) at 55. Further, Defendants assert that the authority to review and approve the agreements negotiated between BHP and the affected holders of such customary use rights is vested exclusively in the Navajo Nation. See Navajo Nation Code tit. 16, §§ 1401-1403.
Plaintiffs counter, arguing that the studies upon which Defendants rely are outdated and immaterial. I acknowledge that it stretches the limits of rationality to believe that these issues are adequately addressed in the Four Corners Power Plant FEIS, published in 1976, and the San Juan River Regional Coal EIS, published in 1984. Nonetheless, although this FEIS and EIS are somewhat dated and fail to specifically address the area to be mined in Area IV North, they do analyze relocation related to previous expansions at mines in the region, including the Navajo Mine. Plaintiffs' sweeping assertions are insufficient to meet their burden of showing that Defendants' reliance upon the FEIS and EIS is either arbitrary or capricious.
Plaintiffs also assert that the Navajo Tribal Code does not preclude OSM's analysis of the issue. Even if this contention is correct, however, I find OSM's deference to the conditions and mitigation measures the Navajo Nation, with the approval of BIA, negotiated and approved is neither arbitrary nor capricious. As Defendants note, "the Navajo Nation has reserved for itself the right to approve relocation compensation agreements negotiated between mining companies and those who claim (and prove) that they have rights upon the land (e.g. to live there or to graze there)." Defendants' Response Brief (Doc. 113) at 40. Plaintiffs have failed to show that Defendant OSM failed adequately to evaluate the impacts of its approval of BHP's 2005 Permit Revision Application on tribal members and their rights.
ii. Failure to Discuss Mitigation of Impacts on Scientific, Historic, or Cultural Resources
Plaintiffs also argue that OSM failed to discuss mitigation of impacts to scientific, historic, or cultural resources known to exist in Area IV North in its EA of BHP's proposed mine expansion. Defendants deny this argument, citing the pending ethnographic study and mitigation measures required as a condition of their approval of BHP's 2005 Permit Revision Application as evidence of their consideration of these resources. Plaintiffs counter, arguing that the mitigation measures included in OSM's decision document cannot be relied upon for purposes of the FONSI, because they were not mandatory and they were not finalized at the time the FONSI was made.
As noted in the 2005 Permit Revision Decision Document, seventy-three significant historical and cultural sites will be affected by the expansion of BHP's mining operations, thirty-four of which are considered eligible for nomination to the National Register of Historic Places. AR 14-70. Pursuant to NEPA, OSM was required to analyze the effects of BHP's proposed permit revision on these resources before reaching a final decision. Indeed, OSM was required to consider the degree to which approval of the 2005 Permit Revision would adversely affect these resources in determining whether an EIS was required. See 40 C.F.R. § 1508.27(b). Although these effects may have been significant, OSM determined that any effects would be mitigated by "mitigation/data recovery plans" to be developed by BHP pursuant to a permit condition. These mitigation/data recovery plans were essential to OSM's finding of no significant impact.
The CEQ regulations require an agency to include a discussion of possible mitigation measures in an EIS. See 40 C.F.R. § 1508.25(b)(3), § 1502.14(f), § 1502.16(h), and § 1505.2(c); see also Robertson, 490 U.S. at 351-52. Although an agency need not fully develop a mitigation plan which will mitigate any environmental harm before it can act, Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir. 1992), it must include a "reasonably complete [discussion of mitigation measures] in order to properly evaluate the severity of the adverse effects of a proposed project before making a final decision." Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1173 (10th Cir. 1999) (citing Robertson, 490 U.S. at 352). "[A] perfunctory description or mere listing of mitigation measures, without supporting analytical data, is not sufficient to support a finding of no significant impact." San Luis Valley Ecosystem Council v. U.S. Fish and Wildlife Serv., 657 F. Supp. 2d 1233, 1245 (D. Colo. 2009) (citing Nat'l Parks Conservation Assoc. v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001); see also Colo. Envtl. Coal., 185 F.3d at 1173 (citing Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th cir. 1998) (holding that "it is not enough to merely list possible mitigation measures"). Furthermore, as the Tenth Circuit has held, "[m]itigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation, or submitted by an applicant or agency as part of the original proposal." Davis, 302 F.3d at 1125.
As discussed supra at n. 32, although the regulations do not specifically address the scope of an EA, the requirements for an EIS are informative. Although an agency need not analyze mitigation measures as thoroughly in an EA as it would in an EIS, it should include sufficient discussion and analysis to allow the public or a reviewing court to evaluate the adequacy of proposed mitigation measures.
Although the mitigation measures relating to the preservation of scientific, historic, and cultural resources may be relied upon because they are imposed by a variety of statutory and regulatory regimes, the lack of detail as to the nature of the mitigation measures considered in reaching the finding of no significant impact precludes any meaningful judicial review. The permit revision decision document contains only vague reference to "mitigation/data recovery plans" which will be conducted by BHP before commencing any mining activity in Area IV North. See 2005 Permit Revision Decision Document at 14-2, 14-11, 14-13, 14-24, 14-45, and 14-70 (referring to "mitigation/data recovery plans" which BHP must implement before mining in Area IV North). Indeed, because the mitigation/data recovery plans were to be developed as a condition of OSM's approval of the 2005 Permit Revision Application, there were no detailed mitigation plans upon which OSM could have relied in making its finding of no significant impact. Its reliance on hypothetical mitigation measures is arbitrary and capricious.
These resources are protected by the mandatory provisions of the National Historic Preservation Act, 16 U.S.C. § 470 et seq., and the Navajo Nation Cultural Resources Protection Act, AR 58-3. Furthermore, the Programmatic Agreement for the Navajo Mine requires BHP to comply with the: (1) Navajo Nation Policy for Protections of Jishchaá: Gravesites, Human Remains, and Funerary Items; (2) the Native Americans Grave Protection and Repatriation Act of 1990 ("NAGPRA"), 25 U.S.C. § 3001 et seq.; and (3) the regulations implementing NAGPRA, 43 C.F.R. part 10. AR 58-4. Plaintiffs allege that Defendants' citation to these statutory regimes is a post hoc rationalization for OSM's decision. Although the EA and decision document could have more clearly cited these statutory and regulatory regimes, they do contain some reference to them. See AR 14-11 (noting the presence within Area IV North of thirty-four sites eligible for nomination to the National Register for Historic Places as well as several Traditional Cultural Properties including burials).
The 2005 Permit Revision FONSI was issued on October 5, 2007 — twenty-one months before the Ethnographic Studies were completed and two years before the Programmatic Agreement incorporating these studies was finalized. See 2005 Permit Revision Decision Document, AR 26-1; Area IV North Ethnographic Study, AR 74-1; and OSM Programmatic Approval Letter, AR 57-1.
I find that OSM failed to take the requisite "hard look" at the mitigation of impacts on scientific, cultural, and historical resources in Area IV North. On remand, OSM must consider the specific mitigation measures proposed in the ethnographic studies in determining the severity of the effects that BHP's 2005 Permit Revision Application will have on scientific, historic, and cultural resources in Area IV North.
iii. Failure to Evaluate Impacts of CCW
Plaintiffs also argue that the 2005 Permit Revision EA failed to take a "hard look" at the impact of continued permanent CCW disposal and use of CCW as minefill at the Navajo Mine. Defendants argue Plaintiffs have failed to cite any evidence in either BHP's permit application or the Administrative Record that BHP has applied for or OSM has approved of the disposal of CCW in Area IV North. Plaintiffs do not dispute this deficiency, but counter that it was impossible for them to do so because Defendants failed to include BHP's revision permit application in the agency's Administrative Record.
In order to ensure meaningful judicial review of agency action, the administrative record must contain "all documents and materials directly or indirectly considered by the agency." Bar MK Ranches v. Yeutter, 994 F.2d. 735, 739 (10th Cir. 1993). Consistent with the deference owed an agency under APA, 5 U.S.C. § 706, I assume that the agency properly designated its record absent clear evidence to the contrary. Bar MK Ranches, 994 F.2d at 740.
As Defendants have acknowledged, however, the absence of the 2005 Permit Revision Application from the Administrative Record is inexplicable. Indeed it is the result of a clerical oversight in the compilation of the administrative record. Ideally the parties would have resolved this discrepancy earlier in the proceedings. I cannot, however, engage in a meaningful review of OSM's actions if I am unable to determine whether the permit revision allows for the usage of CCW as part of BHP's reclamation plan. Furthermore, although OSM cites a previous study addressing the usage of CCW as part of the reclamation plans at the Navajo Mine, I cannot evaluate the extent to which any potential use of CCW as part of the reclamation plan for Area IV North is adequately addressed by that previous study.
When the agency record is inadequate, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Sierra Club-Black Hills Group v. U.S. Forest Serv., 259 F.3d 1281, 1289 (10th Cir. 2001) (quoting Fla. Power Light Co., 470 U.S. at 744). Although Defendants have supplemented the Administrative Record with the 2005 Permit Revision Application, I decline to require the parties to re-brief this issue at this late stage of the proceedings. Because I am vacating OSM's approval of the 2005 Permit Revision Application and remanding the 2005 Permit Revision EA to OSM for further consideration and analysis, it is most appropriate to remand the administrative record to OSM. OSM shall include a discussion of CCW to the extent it is mentioned, if at all, in the 2005 Permit Revision Application in its revised EA for BHP's 2005 Permit Revision Application.
4. Failure to Involve Public
Plaintiffs next argue that OSM failed to provide public notice of the availability of OSM's FONSI/EA and violated NEPA by denying the public the ability to review and comment on the FONSI/EA. As reflected in the CEQ regulations, one of NEPA's primary purposes is to "insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R. § 1500.1(b). As the Supreme Court has recognized, when properly implemented, NEPA procedures "ensure[] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Balt. Gas Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983); see also S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1237 (10th Cir. 2002), rev'd and remanded on other grounds, 542 U.S. 55 (2004). Accordingly, the CEQ regulations require agencies to, among other responsibilities, "[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures," 40 C.F.R. § 1506.6(a); "[p]rovide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected," id. § 1506.6(b); "[s]olicit appropriate information from the public," id. § 1506.6(d); and "[e]xplain in its procedures where interested persons can get information or status reports on environmental impact statements and other elements of the NEPA process" id. § 1506.6(e). Additionally, the
CEQ Regulations require agencies preparing an EIS to make an initial draft available for public comment and to consider "develop[ing] and evaluating alternatives not previously given serious consideration" in response to comments. 40 C.F.R. §§ 1503.1, 1503.4. "[T]he broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989).
"NEPA's public involvement requirements are not as well defined when an agency prepares only an EA and not an EIS." Greater Yellowstone Coal., 359 F.3d at 1279. Although the CEQ Regulations require agencies to "involve . . . the public, to the extent practicable, in preparing [EAs]," they only require an agency to circulate a FONSI before making the final determination of whether to prepare an EIS in certain limited circumstances. 40 C.F.R. § 1501.4(b). Based on the plain meaning of these regulations, it is apparent that circulation of a draft EA is not required in every case. It is required, however, where an action normally requires the preparation of an environmental impact statement but an agency makes a finding of no significant impact. Id. § 1501.4(e)(2)(i). In such cases, "the agency shall make the finding of no significant impact available for public review (including State and areawide clearinghouses) for 30 days before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin." 40 C.F.R. § 1501.4(e)(2); DOI Departmental Manual, 516 DM 13.4. As discussed above, the Defendants' approval of the 2005 Permit Revision Application was a type of action for which an EIS would normally be prepared. Defendants failed, however, to make the 2005 Permit Revision FONSI available for public review before making the final determination. Their actions are not in accordance with law. Accordingly, on remand, if OSM determines that an EIS is not required for its approval of BHP's 2005 Permit Revision Application, it must make its FONSI available for public review for 30 days before making its final determination.
Mere publication of the FONSI is not, however, sufficient. In this regard, it is necessary to examine the sufficiency of the public notice procedures employed by OSM in advance of its approval of the 2005 Permit Revision Application.
Before approving BHP's 2005 Permit Revision Application, OSM published notice of BHP's permit revision application in the Farmington Daily Times and mailed notifications to federal, state, and tribal governmental agencies informing them of BHP's proposal and inviting comments on the revision application. Plaintiffs argue that this public notice was inadequate. Specifically, Plaintiffs note that a majority of the people affected by the permit revision are members of the Navajo Nation. According to Plaintiffs, the primary news source in the community is tribal radio, not the Farmington Daily Times. Also of note, many area residents speak English, if at all, as a second language.
This notice was published for four consecutive weeks and provided information on the location and acreage proposed for the revision and where the revision application was available for public inspection. The notice invited interested parties to submit written comments or objection to, or to request an informal conference on, the application.
Although not binding, Executive Order 12898 illuminates some of the concerns inherent in a business as usual NEPA approach when dealing with Native American Tribes and other non-English speakers. See Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629, 7632 (Feb. 16, 1994)
Adequate notice requires a meaningful effort to provide information to the public affected by an agency's actions. As Plaintiffs note, the population most affected by OSM's approval of the 2005 Permit Revision Application is primarily rural, speaks English on a limited basis, and relies upon tribal news sources. Unsurprisingly, OSM received no public comment before it approved BHP's 2005 Permit Revision Application.
A comparison with the public notice provided in advance of the 2009 Permit Renewal Application demonstrates the inadequacy of the public notice provided for the 2005 Permit Revision Application. Before approving the 2009 Permit Renewal Application, OSM tailored its public notice to account for the unique characteristics of the local population most affected by actions at the Navajo Mine. In addition to the notice procedures employed for the 2005 Permit Revision Application, OSM published notice in the Navajo Times (the tribal newspaper) and aired advertisements on local Navajo radio stations in the Navajo language. Transcript of Oral Argument, at 29. Quite tellingly, unlike OSM's notice for the 2005 Permit Revision Application, this notice resulted in significant public comment. Id. at 35.
As evidenced by the process related to the 2009 Permit Renewal Application, OSM is capable of providing effective notice to the population most affected by its actions related to the Navajo Mine. On remand, OSM shall provide meaningful notice, similar to that provided in advance of its approval of BHP's 2009 Permit Renewal Application, of BHP's Permit Revision Application and, if applicable, any pending FONSI.
C. SEIS/SEA
Plaintiffs next contend that OSM should have prepared a supplemental EIS ("SEIS") to address the ethnographic study and mitigation plan completed as a condition of its approval of BHP's 2005 Permit Revision Application. NEPA itself does not explicitly state when environmental impact statements, or environmental assessments, must be supplemented. "It would be incongruous with [NEPA's] approach to environmental protection," however, "for the blinders to adverse environmental effects, once unequivocally removed, to be restored before the completion of agency action simply because the relevant proposal has received initial approval." Marsh, 490 U.S. at 371. Accordingly, the CEQ regulations require agencies to prepare an SEIS or a supplemental EA if "(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(i)-(ii).
In their Amended Complaint, Plaintiffs also alleged OSM should have prepared a supplemental environmental analysis in light of the CHIA and the proposed Burnham Road realignment. As discussed supra at n. 11, these claims were dismissed.
Although the CEQ regulations only address the supplementation of EISs, the standard for preparing a supplemental EA is the same as for preparing an SEIS. See S. Utah Wilderness Alliance, 301 F.3d at 1238 n. 19 (10th Cir. 2002), rev'd and remanded on other grounds, 542 U.S. 55 (2004) (citing Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562 at 566 n. 2 (9th Cir. 2000); Friends of the Bow v. Thompson, 124 F.3d 1210, 1218 n. 3 (10th Cir. 1997)).
An agency need not supplement an EIS or EA "every time new information comes to light after the EIS [or EA] is finalized." Marsh, 490 U.S. at 373; see also Colo. Envtl. Coal., 185 F.3d at 1177. Rather:
the decision whether to prepare a supplemental EIS [or EA] is similar to the decision whether to prepare an EIS [or EA] in the first instance: If there remains `major Federal action' to occur, and if the new information is sufficient to show that the remaining action will [or may] `affect the quality of the human environment' in a significant manner or to a significant extent not already considered, a supplemental EIS [or EA] must be prepared.
Marsh, 490 U.S. at 374;
see also Greater Yellowstone Coal., 572 F.3d at 1122. Stated differently, "the new circumstance[s] must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned."
Sierra Club v. Froehlke, 816 F.2d 205, 210 (5
th Cir. 1987) (citing
Wisconsin v. Weinberger,
745 F.2d 412, 421 (7
th Cir. 1984)).
In evaluating an agency's decision not to prepare an SEIS or supplemental EA, courts utilize a two part test. First, they look to see if the agency took the requisite "hard look" at new information to determine whether supplemental analysis is necessary. S. Utah Wilderness Alliance, 301 F.3d at 1238. In determining whether an agency has taken this "hard look," the court "may consider whether the agency obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny, responds to all legitimate concerns that are raised or otherwise provides a reasoned explanation for the new circumstance's lack of significance." Id. (citations omitted). Second, courts review the agency's decision not to prepare an SEIS or supplemental EA under the APA's "arbitrary and capricious" standard. Id. (citations omitted).
As noted above, the 2005 Permit Revision EA recognized the existence of seventy-three notable sites, thirty-four of which are considered eligible for nomination to the National Register of Historic Places as well as several traditional cultural properties, including possible burials, within Area IV North. It did not, indeed it could not, analyze the impacts of OSM's adoption of the ethnographic study and mitigation plan as the documents had not yet been completed. In fact, OSM's adoption of the ethnographic study and mitigation plan have completely evaded environmental review. There is no evidence in the record that OSM has taken the requisite "hard look" at the information in the study and plan. I need not order a Supplemental EA, however, because on remand OSM will be required to include an analysis of the information contained in the ethnographic studies (particularly the mitigation/data recovery plans) in its revised EA for the 2005 Permit Revision Application.
See supra n. 41.
VI. Conclusion
Defendants approved BHP's 2005 Permit Revision Application without complying with the procedural requirements of NEPA. Accordingly, I VACATE Defendants' approval of the 2005 Permit Revision Application and REMAND to the agency for further proceedings consistent with this decision. Specifically, Defendants shall:
1. Address the presumption that approval of the 2005 Permit Revision Application is a type of action for which an EIS is normally prepared;
2. Consider the environmental effects of the Burnham Road Realignment in connection with its analysis of the 2005 Permit Revision Application;
3. Include a meaningful discussion of all reasonable alternatives, including approving the 2005 Permit Revision Application with conditions;
4. Discuss the specific mitigation measures proposed in the ethnographic studies in determining the severity of the effects that BHP's 2005 Permit Revision Application will have on scientific, historic, and cultural resources in Area IV North;
5. Include in their revised EA a discussion of CCW to the extent it is mentioned in the 2005 Permit Revision Application; and
6. Provide meaningful public notice, including but not limited to publication in the Navajo Times and airing advertisements in both English and Navajo on local Navajo radio stations, for all future actions related to its permitting responsibilities at the Navajo Mine.
It is FURTHER ORDERED that all pending motions are DENIED as moot.
Dated: October 28, 2010