LUMMI INDIAN NATION v. STATE

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 (9^th 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

sed in the briefs may not be addressed in the opinion. The factual predicate may not appear in the record; the argument may not have been raised appropriately below; the issue may not have been properly raised in the petition or the answer; the court may simply feel it unnecessary to address them to reach a just adjudication. "An appellate court is not a performing bear, required to dance to each and every tune played on an appeal." State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978).

¶8 Our Theodoratus decision caused concern among existing water users about the vitality of their existing water rights based on capacity. Apparently some water users were further unnerved by a draft policy floated by the Department of Ecology, but never adopted, which would have required all water rights based upon capacity to comply with the actual beneficial use requirement. The legislature responded to these uncertainties in 2003 by significantly amending the water law act. See LAWS OF 2003, 1st Spec. Sess., ch 5; SESSHB 1338. Among other things, the 2003 amendments defined "municipal water supplier" and "municipal water supply purposes" for the first time, defined when "place of use" could be the same as a municipal water supplier's service area, established that municipal water rights were not limited to the number of subscribers, and required specific conservation practices and planning. See LAWS OF 2003, 1st Spec. Sess., ch 5; SESSHB 1338; see also H.B. REP. on Second Engrossed Second Substitute H.B. 1338, at 1-2, 58th Leg., 1st Spec. Sess. (Wash. 2003) (listing purposes of enacted bill). The bill also declared that "water right certificate[s] issued prior to September 9, 2003 for municipal water supply purposes as defined in RCW 90.03.015" based on system capacity were rights in good standing. LAWS OF 2003, 1st Spec. Sess., ch. 5, § 6(3) (codified as RCW 90.03.330(3)). However, "[a]fter September 9, 2003, the department must issue a new certificate under subsection (1) of this section for a water right represented by a water right permit only for the perfected portion of a water right as demonstrated through actual beneficial use of water." RCW 90.03.330(4). The legislation essentially put the legislature's imprimatur on our holding in Theodoratus prospectively while confirming the good standing of water certificates issued under the former system. 23 BUTLER KING, supra, § 8.11, at 293.

¶9 In 2006, two groups of challengers sued, contending that several sections of the 2003 amendments were unconstitutional. The two cases were consolidated, and the trial court agreed with the challengers that the amendments to the definition of municipal water suppliers in RCW 90.03.015 and the retroactivity provision of RCW 90.03.330 violated separation of powers as, the court concluded, they effectively overruled Theodoratus. The trial court declined to reach the substantive due process challenges to those three provisions. The judge rejected the remaining facial procedural and substantive due process challenges. We granted review on the motion of all parties.

The trial judge did not have the advantage of this court's decision in Hale v. Wellpinit School District No. 49, 165 Wn.2d 494, 198 P.3d 1021 (2009), which was issued after the trial court's ruling.

The order states that the trial court declined to reach the substantive due process challenge to RCW 90.03.300(3), not .330(3). However, .300 was not challenged and we suspect this was a scrivener's error.

ANALYSIS

¶10 The challenges before us are facial constitutional challenges to the statutes. "We presume statutes are constitutional and review challenges to them de novo." City of Seattle v. Ludvigsen, 162 Wn.2d 660, 668, 174 P.3d 43 (2007) (citing State v. Shultz, 138 Wn.2d 638, 642-43, 980 P.2d 1265 (1999)). "Construction of the state constitution is a question of law that is reviewed de novo." State v. Pugh, 167 Wn.2d 825, 835, 225 P.3d 892 (2009) (citing State v. Chenoweth, 160 Wn.2d 454, 462, 158 P.3d 595 (2007)); accord City of Kennewick v. Benton County, 131 Wn.2d 768, 771, 935 P.2d 606 (1997).

¶11 We note that many of the arguments before us might be better raised in an "as applied" challenge.

An "as applied" challenge occurs where a plaintiff contends that a statute's application in the context of the plaintiff's actions or proposed actions is unconstitutional. If a statute is held unconstitutional as applied, it cannot be applied in the future in a similar context, but it is not rendered completely inoperative. A statute is rendered completely inoperative if it is declared facially unconstitutional. However, a facial challenge must be rejected if there are any circumstances where the statute can constitutionally be applied.

Wash. State Republican Party v. Pub. Disclosure Comm'n, 141 Wn.2d 245, 282 n. 14, 4 P.3d 808 (2000) (citing In re Det. of Turay, 139 Wn.2d 379, 417 n. 28, 986 P.2d 790 (1999)). However, in this case, the challenges are explicitly facial.

The parties inform us that there is at least one "as applied" challenge currently pending before the Pollution Control Hearings Board. Appellant/Cross-Resp't Wash. State Univ. Opening Br. at 26-27 (citing Cornelius v. Dep't of Ecology, No. 06-099 (Wash. Pollution Control Hr'gs Bd. Dec. 7, 2007)).

1. SEPARATION OF POWERS AND STATUTORY AMENDMENTS

¶12 The challengers contend, successfully below, that RCW 90.03.015(3), (4), and RCW 90.03.330(3) facially violate separation of powers because they unsettle a decision of this court retroactively. Specifically, they challenge the 2003 amendments in which the legislature defined municipal water suppliers broadly to include private developers whose projects would provide water to more than 15 houses, RCW 90.03.015(3), (4); provided that under certain circumstances, a municipality's water rights would not be limited to the specified number of service connections or stated population so long as the change is "consistent with the approved water system plan" among other things, RCW 90.03.260(4), (5); largely made existing water certificates based upon system capacity valid and limited the situations where the Department of Ecology could seek to invalidate a water rights certificate, RCW 90.03.330(2), (3); authorized municipal water suppliers, under certain circumstances, to shift place of use within the boundaries of approved water plans without consulting the Department of Ecology or notifying other water rights' holders, RCW 90.03.386(2); and allowed existing water rights certificates that would now be considered to be for municipal water services to be so amended, RCW 90.03.560. They contend that these provisions change the requirements noted in Theodoratus for private water rights to vest. They claim that the amendments to RCW 90.03.015(3) and (4) define municipal water suppliers so broadly that Theodoratus would now himself qualify as a municipal water supplier. Further, they note that RCW 90.03.330(3) provides that municipal water suppliers who had water rights certificates issued under the former "pumps and pipes" capacity standard had "right[s] in good standing" even if those rights would not have vested under Theodoratus. See also CP at 617. The State acknowledges that these amendments have some retroactive effect. Opening Br. of Appellant/Cross-Resp't at 36.

"`Municipal water supplier' means an entity that supplies water for municipal water supply purposes." RCW 90.03.015(3). This was a new provision of the 2003 amendments. See LAWS OF 2003, 1st Spec. Sess., ch. 5, § 1(3).

"Municipal water supply purposes" means a beneficial use of water: (a) For residential purposes through fifteen or more residential service connections or for providing residential use of water for a nonresidential population that is, on average, at least twenty-five people for at least sixty days a year; (b) for governmental or governmental proprietary purposes by a city, town, public utility district, county, sewer district, or water district; or (c) indirectly for the purposes in (a) or (b) of this subsection through the delivery of treated or raw water to a public water system for such use. If water is beneficially used under a water right for the purposes listed in (a), (b), or (c) of this subsection, any other beneficial use of water under the right generally associated with the use of water within a municipality is also for "municipal water supply purposes," including, but not limited to, beneficial use for commercial, industrial, irrigation of parks and open spaces, institutional, landscaping, fire flow, water system maintenance and repair, or related purposes. If a governmental entity holds a water right that is for the purposes listed in (a), (b), or (c) of this subsection, its use of water or its delivery of water for any other beneficial use generally associated with the use of water within a municipality is also for "municipal water supply purposes," including, but not limited to, beneficial use for commercial, industrial, irrigation of parks and open spaces, institutional, landscaping, fire flow, water system maintenance and repair, or related purposes.

RCW 90.03.015(4). This was also a new provision of the 2003 amendments. See LAWS OF 2003, 1st Spec. Sess., ch. 5, § 1(4).

This subsection applies to the water right represented by a water right certificate issued prior to September 9, 2003, for municipal water supply purposes as defined in RCW 90.03.015 where the certificate was issued based on an administrative policy for issuing such certificates once works for diverting or withdrawing and distributing water for municipal supply purposes were constructed rather than after the water had been placed to actual beneficial use. Such a water right is a right in good standing.

RCW 90.03.330(3). This was a new provision of the 2003 amendments. See LAWS OF 2003, 1st Spec. Sess., ch. 5, § 6(3).

When requested by a municipal water supplier or when processing a change or amendment to the right, the department shall amend the water right documents and related records to ensure that water rights that are for municipal water supply purposes, as defined in RCW 90.03.015, are correctly identified as being for municipal water supply purposes. This section authorizes a water right or portion of a water right held or acquired by a municipal water supplier that is for municipal water supply purposes as defined in RCW 90.03.015 to be identified as being a water right for municipal water supply purposes. However, it does not authorize any other water right or other portion of a right held or acquired by a municipal water supplier to be so identified without the approval of a change or transfer of the right or portion of the right for such a purpose.

RCW 90.03.560.

¶13 We examined our separation of powers jurisprudence recently in Hale v. Wellpinit School District No. 49, 165 Wn.2d 494, 198 P.3d 1021 (2009). Previously, in McClarty v. Totem Electric, 157 Wn.2d 214, 228, 137 P.3d 844 (2006), we rejected the definition of "disability" promulgated by the Human Rights Commission in favor of the federal statutory definition. The legislature responded by, for the first time, legislatively defining disability consistent with the Human Rights Commission's earlier attempt, and made that definition retroactive to all claims that accrued prior to McClarty (as well as, of course, all claims accruing after the effective date of the statute). Hale, 165 Wn.2d at 498. We upheld the retroactive provision against a separation of powers claim.

¶14 In Hale, we began by recognizing the presumption against retroactive application of a statute and the policy behind that presumption. Id. at 507-08. Retroactive application of a statute may violate the ex post facto doctrine, id. at 507 (citing State v. Schmidt, 143 Wn.2d 658, 672-73, 23 P.3d 462 (2001)), or affect vested rights and violate due process, id. (citing State v. Varga, 151 Wn.2d 179, 195, 86 P.3d 139 (2004)). Retroactive changes in the law alter the status quo in the law upon which people should be able to reasonably rely. Id. Retroactive amendments to the law may violate separation of powers by disturbing judgments, interfering with judicial functions, or cause manifest injustice. Thus, as we observed:

The presumption against retroactive application of a statute or amendment "`is an essential thread in the mantle of protection that the law affords the individual citizen.'" [ State v.] Cruz, 139 Wn.2d [186,] 190[, 985 P.2d 384 (1999)] (quoting Lynce v. Mathis, 519 U.S. 433, 439, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997)). This presumption "`is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.'" Cruz, 139 Wn.2d at 190 (quoting Lynce, 519 U.S. at 439).

State v. Smith, 144 Wn.2d 665, 673, 30 P.3d 1245, 39 P.3d 294 (2001) (internal quotation marks omitted), superseded by statute, LAWS OF 2002, ch. 107, as recognized in Varga, 151 Wn.2d at 183.

¶15 In Hale, we said that in order to decide whether the retroactive application of a statute violates separation of powers we must determine "`"whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another."'" Hale, 165 Wn.2d at 507 (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994) (quoting Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975))). We suggested that legislative intervention to affect the rights of parties in a particular case would overstep the legislative function. Id. at 509-10. Retroactive legislation that interferes with vested rights established by judicial rulings interferes with a judicial function or results in manifest injustice or threatens the independence, integrity, or prerogatives of the judicial branch may violate separation of powers. Id. at 507-08.

¶16 However, in Hale, we also firmly rejected the contention that just because an appellate court's statutory interpretation relates back to the time the statute was originally adopted, any retroactive amendment of that statute violates separation of powers. Id. at 506; see also In re Pers. Restraint of Stewart, 115 Wn. App. 319, 75 P.3d 521 (2003). Indeed, it is wholly within the sphere of authority of the legislative branch to make policy, to pass laws, and to amend laws already in effect. Hale, 165 Wn.2d at 509. Courts must exercise care not to invade the prerogatives of the legislative branch lest the judicial branch itself violate the doctrine of separation of powers. Co-equal branches must respect one another's independence. In re Salary of Juvenile Dir, 87 Wn.2d 232, 238, 243, 552 P.2d 163 (1976) (citing WILLIAM B. GWYN, THE MEANING OF THE SEPARATION OF POWERS: AN ANALYSIS OF THE DOCTRINE FROM ITS ORIGIN TO THE ADOPTION OF THE UNITED STATES CONSTITUTION 110 (1965)); see also Carrick, 125 Wn.2d at 135.

¶17 Applying these principles to this case, there is no general separation of powers violation caused by the amendments to RCW 90.03.015(3) and (4) and RCW 90.03.330(3). The legislature approached its legislative task both thoughtfully and with deference to this court's construction in Theodoratus. It adopted this court's holding prospectively, RCW 90.03.330(4); it evoked this court's language in stating that "the water right represented by a water right certificate issued prior to September 9, 2003, for municipal supply purposes . . . is a right in good standing," RCW 90.03.330(3); and it used the fact that this court did not consider "issues concerning municipal water suppliers" in Theodoratus as an opportunity to secure the rights of some existing water certificate holders, 135 Wn.2d at 594. The legislature made no attempt to apply the law to an existing set of facts, affect the rights of parties to the court's judgment, or interfere with any judicial function. Instead, the legislature allowed those who had planned their property development to rely upon the water rights previously approved by the statutorily authorized administrating agency. These amendments do not "threaten[] the independence or integrity" of the judicial branch. Hale, 165 Wn.2d at 510. Instead, they work to amend an area of the law subject to ongoing legislative refinement in the face of changing conditions and, like in Hale, working in harmony with its co-equal branch. We stress that Mr. Theodoratus is not a party before us and we leave for another day consideration of any as-applied challenges.

2. SEPARATION OF POWERS AND ADJUDICATION OF FACTS

¶18 The trial court also found that "RCW 90.03.330(3) violates the separation of powers under the state constitution because it purports to make a legislative determination of adjudicative facts concerning the `good standing' of particular water rights." CP at 617-18. We disagree. Separation of powers is violated when the legislature oversteps its role and adjudicates facts. Justice Brachtenbach ably explored the difference between a legitimate exercise of legislative authority and a usurpation of the judicial fact finding role in City of Tacoma v. O'Brien, 85 Wn.2d 266, 534 P.2d 114 (1975), a case examining a statute that made certain fuel contracts voidable in the face of skyrocketing oil prices. As we often find, we cannot improve on his words:

All these cases involve the element of adjudication, and we believe that a finding of "economic impossibility" is similarly adjudicatory. A legislature can declare that economic impossibility shall constitute, in the future, a defense in actions involving contractual disputes. A legislature can find that a worldwide shortage of petroleum exists. Finding that existing contracts, entered into at least 6 months prior to the legislation, have become economically impossible to perform, however, is a legal conclusion, a result which follows from examination and consideration of circumstances in a particular case and interpretation and application of legal principles to those facts. As Mr. Justice Holmes wrote in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67 (1908);

A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter. . . .

O'Brien, 85 Wn.2d at 272. Thus, when the legislature passes a statute premised on finding an adjudicative fact, it may violate separation of powers. But the legislature did not engage in any adjudication of facts. Rather, the relevant 2003 amendments simply confirmed that the right represented by a water right certificate issued before Theodoratus continued to be "a right in good standing," RCW 90.03.330(3). Confirming existing rights was a legislative policy decision, not a factual adjudication.

¶19 Of course, a statute is not constitutional simply because separation of powers is not offended. "The retroactive application of laws may violate the ex post facto doctrine, affect vested rights and violate due process, or affect other judicial functions." Hale, 165 Wn.2d at 507 (citations omitted) (citing Schmidt, 143 Wn.2d at 672-73; Varga, 151 Wn.2d at 195). But while RCW 90.03.330(3) removes the shadow from water certificates that might have been challenged under Theodoratus, this is a facial challenge to an exercise of general legislative authority.

¶20 If any of those water rights were litigated and adjudicative facts developed, they are not in this case. Further, while it may be possible to construe "rights in good standing" to mean that the legislature validated water rights that had been held invalid, the statute can also be construed to mean that such water rights will be treated like any other vested right represented by a water right certificate. We will give statutes constitutional constructions when possible. In re Pers. Restraint of Matteson, 142 Wn.2d 298, 307, 12 P.3d 585 (2000). Whether the application of the statute unconstitutionally unsettles a vested, judicially recognized right is better considered in a due process challenge. In this challenge, we are considering only unchallenged water rights. There is no encroachment on the judicial role that would offend separation of powers principles.

3. DUE PROCESS

¶21 We now turn to the facial due process challenges to the 2003 amendments. "[P]roperty owners have a vested interest in their water rights to the extent that the water is beneficially used on the land." Dep't of Ecology v. Adsit, 103 Wn.2d 698, 705, 694 P.2d 1065 (1985) (citing Dep't of Ecology v. Acquavella, 100 Wn.2d 651, 655, 674 P.2d 160 (1983)). Vested water rights cannot be deprived without due process of law. Id. (citing Nielson v. Sponer, 46 Wash. 14, 89 P. 155 (1907)). Because junior rights holders take their water rights subject to the rights of senior rights holders, in times of scarcity the junior rights holders suffer first and suffer the most. Some junior rights holders will likely suffer (and others will likely benefit) because of these amendments. For example, for the first time, the legislature has defined municipal water supplier as anyone who provides water to 15 or more residences (among other things), and made that definition apply regardless of whether the water rights certificate was issued prior to September 2003. RCW 90.03.015, .330, .560. Municipal water suppliers are not subject to the risk of relinquishment as most private water rights holders, and are subject to a different set of conditions before changing the place of use. RCW 90.14.140(2)(d) (relinquishment); RCW 90.03.380 (requiring individual water rights holders to apply to the department for permission to change place of use), .386(2) (allowing municipal water suppliers to change place of use within boundaries so long as it is consistent with an approved plan). While we take the State's point that even prior to the 2003 amendment, some private water supply companies had been deemed municipal, it is likely that there are junior water rights holders whose rights vested between Theodoratus and the 2003 amendments and whose enjoyment of their water rights will be detrimentally affected by these amendments. Reduced to its essence, the challengers contend that because of this likely detrimental effect on some rights holders, the 2003 amendments facially violate due process.

Citing its own policy 2030, the State contends that even municipal water supply rights may be relinquished under certain circumstances when the water is not beneficially used for a sufficient period of time. WASH. STATE DEP'T OF ECOLOGY, 2003 MUNICIPAL WATER LAW INTERIM GUIDANCE AND POLICY STATEMENT (GUID-2030). As it is not necessary for our disposition and as the parties are not meaningfully adverse on this subject, we do not consider whether this is so.

¶22 We are not without sympathy to the challengers' contention that because of the amendments, some junior rights holders' enjoyment of their water rights may be impaired without individualized notice or prior opportunity to comment. But the challengers have cited no case, and we have found none, where mere potential impairment of some hypothetical person's enjoyment of a right has been held to be sufficient for a successful facial due process challenge. Nothing in these amendments changes the legal status of the group the challengers attempt to represent: junior water rights holders who take water subject to the rights of senior rights holders whose status may be improved by these changes. Instead, these amendments confirm what the department has already declared (that certain water rights are rights in good standing) and statutorily define something that had previously been statutorily undefined (the meaning of municipal water supplier). RCW 90.03.015, .260, .330, .386, .560. Of themselves, these changes to the law do not violate due process.

The challengers cite Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), for the due process standard. Mathews establishes a three part test to determine what process is due before a right can be deprived. But here, the question is not about an administrative process that ends with the challenger's rights being confirmed or denied. The impact on the challengers' rights is occasional, collateral, and attenuated, and a rights holder has a vested interest in the legal status of other rights holders. We do not find Mathews helpful. Nor, given the inchoate and hypothetical nature of the potential injuries, do we find this a good case to explore the tension between the State's police power and the individual's due process rights.

¶23 Because this is a facial challenge, no case has been pleaded or proved where any individual rights holder's reasonable expectation of the enjoyment of water rights has actually been impaired or deprived in violation of due process of law. We note that several individuals have submitted declarations tending to show that since 2003, the amount and quality of the water they have been able to draw from their wells has deteriorated. The challengers suggest (but have not established) that this deterioration was caused by the 2003 amendments. We do not intend to minimize their loss. However, this is a facial challenge, and "a facial challenge must be rejected if there are any circumstances where the statute can constitutionally be applied." Wash. State Republican Party, 141 Wn.2d at 282 n. 14 (citing Turay, 139 Wn.2d at 417 n. 28). This is not a standard the challengers have met.

Washington Water Utilities Council challenges the trial judge's decision to admit evidence relevant to these assertions on the grounds that the evidence was not relevant to a facial constitutional challenge. We find no abuse of discretion.

¶24 Junior rights holders always take their water rights subject to the risk that there may be no water to fulfill those rights. We agree with the trial court and the State that the increased likelihood that might happen to some unknown water rights holders is not a fatal facial due process fault in these amendments.

¶25 The challengers specifically contend that the amendments to RCW 90.03.015 and .330 retroactively expand the water rights of municipalities by "resurrecting" water rights certificates issued before Theodoratus based on capacity. We disagree with their characterization of the impact of Theodoratus and the operation of the 2003 amendments. While Theodoratus may have changed the expectations of those who acquired water rights after the date it was issued, it did not automatically divest or invalidate any vested or perfected rights. Theodoratus himself simply sought judicial review of additional requirements the department imposed as a condition of an extension of time to perfect his own water rights. Theodoratus, 135 Wn.2d at 588. There was no party before the court with a perfected right under challenge, and thus we had no occasion to consider whether an erroneously perfected right would be invalidated by the department's mistaken practice of issuing certificates based on capacity rather than actual beneficial use. Nor do the amendments by themselves resurrect any relinquished rights. RCW 90.03.330(3) merely declares that water rights certificates issued prior to Theodoratus based on capacity are certificates in good standing. RCW 90.03.330(2) merely limits the power of the department to invalidate water rights certificates. RCW 90.03.015 is merely definitional. None of these statutes deprive junior water rights holders of vested property rights.

Except as provided for the issuance of certificates under RCW 90.03.240 and for the issuance of certificates following the approval of a change, transfer, or amendment under RCW 90.03.380 or 90.44.100, the department shall not revoke or diminish a certificate for a surface or ground water right for municipal water supply purposes as defined in RCW 90.03.015 unless the certificate was issued with ministerial errors or was obtained through misrepresentation. The department may adjust such a certificate under this subsection if ministerial errors are discovered, but only to the extent necessary to correct the ministerial errors. The department may diminish the right represented by such a certificate if the certificate was obtained through a misrepresentation on the part of the applicant or permit holder, but only to the extent of the misrepresentation. The authority provided by this subsection does not include revoking, diminishing, or adjusting a certificate based on any change in policy regarding the issuance of such certificates that has occurred since the certificate was issued. This subsection may not be construed as providing any authority to the department to revoke, diminish, or adjust any other water right.

RCW 90.03.330(2).

¶26 The challengers cite several out of state cases for support. See San Carlos Apache Tribe v. Super. Ct. ex rel. County of Maricopa, 193 Ariz. 195, 972 P.2d 179 (1999); Fremont-Madison Irrigation Dist. Mitigation Grp. v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996). San Carlos considered a statute that by its plain terms applied to perfected rights, changed the actual priorities of various rights holders, eliminated judicial review of certain factual findings in adjudications, and unconstitutionally denied courts the power to consider the public trust doctrine. San Carlos, 193 Ariz. at 204-06, 210, 215; see also generally Sean E. O'Day, San Carlos Apache Tribe v. Super. Ct.: Rejecting Legislative Favoritism in Water Right Allocations, 4 U. DENV. WATER L. REV. 29 (2000). The amendments before us may impact the enjoyment of water rights of some junior water rights holders but do not by their terms change the legal rights or prioritization of water rights holders. Fremont-Madison considered the constitutionality of an amnesty statute that forgave noncompliance with certain statutory requirements for perfecting water rights. 129 Idaho at 457. While the court cautioned that enlargements of water rights to the detriment of those that had priority would be unconstitutional, it upheld the statute because it found sufficient protections against such enlargements. Id. at 461. But nothing in the amendments before us today themselves deprive any vested rights holder of any vested right as a matter of law.

¶27 The challenges to RCW 90.03.386(2) suffer from a similar problem. RCW 90.03.386(2) says:

The effect of the department of health's approval of a planning or engineering document that describes a municipal water supplier's service area under chapter 43.20 RCW, or the local legislative authority's approval of service area boundaries in accordance with procedures adopted pursuant to chapter 70.116 RCW, is that the place of use of a surface water right or groundwater right used by the supplier includes any portion of the approved service area that was not previously within the place of use for the water right if the supplier is in compliance with the terms of the water system plan or small water system management program, including those regarding water conservation, and the alteration of the place of use is not inconsistent, regarding an area added to the place of use, with: Any comprehensive plans or development regulations adopted under chapter 36.70A RCW; any other applicable comprehensive plan, land use plan, or development regulation adopted by a city, town, or county; or any watershed plan approved under chapter 90.82 RCW, or a comprehensive watershed plan adopted under RCW 90.54.040(1) after September 9, 2003, if such a watershed plan has been approved for the area.

¶28 This provision was newly enacted in Laws of 2003, 1st Spec. Sess., ch. 5, § 5(2). In effect, it allows municipal water suppliers (which, again, now include many water rights holders who prior to 2003 might have been considered private) to change the place of use of water anywhere within their service system (the area where they provide water) upon the approval of the Department of Health or local legislative body and without Department of Ecology approval and process required for nonmunicipal water rights holders so long as the change is consistent with other local planning documents. Compare RCW 90.03.386(2) with RCW 90.03.380(1) (setting forth circumstances where notice and comment must be sought before water right can be changed). The challengers contend that this facially violates due process because changes might be approved by the Department of Health or local legislative body without notice or comment to other rights holders.

¶29 But, like the due process challenges above, this is not a facial due process defect. Washington law still gives considerable process before any change can be made, and any impact on the rights of others will be at best collateral and indirect. See R.D. Merrill, 137 Wn.2d at 127 (department can approve changes to water rights only to the extent they are valid); RCW 90.44.100; RCW 90.03.380 (opportunity for review of system-capacity-based certificates); cf. City of Redmond v. Moore, 151 Wn.2d 664, 677, 91 P.3d 875 (2004) (statute that allowed the State to revoke drivers' licenses without an administrative hearing facially unconstitutional because it fails to give any process). Nothing in RCW 90.03.386(2) allows the vested rights of others to be unvested as a matter of law, and if a change in place of use does harm another water rights holder, that can be dealt with on a case by case basis. Further, it operates only prospectively. We affirm Judge Jim Rogers' conclusion that, as a facial matter, due process is not violated.

The 2010 legislature passed, and the governor partially vetoed, a bill regarding water rights processing that touched on RCW 90.44.100 (among many other statutes). LAWS OF 2010, ch. 285. While the amendments do not appear directly relevant to our analysis, given that the parties have not had an opportunity to brief them, we pass no judgment upon them.

¶30 Next, we turn to the specific due process challenges to RCW 90.03.260(4) and (5). These provisions say:

Appropriation procedure — Application — Contents

. . . .

(4) If for community or multiple domestic water supply, the application shall give the projected number of service connections sought to be served. However, for a municipal water supplier that has an approved water system plan under chapter 43.20 RCW or an approval from the department of health to serve a specified number of service connections, the service connection figure in the application or any subsequent water right document is not an attribute limiting exercise of the water right as long as the number of service connections to be served under the right is consistent with the approved water system plan or specified number.

(5) If for municipal water supply, the application shall give the present population to be served, and, as near as may be estimated, the future requirement of the municipality. However, for a municipal water supplier that has an approved water system plan under chapter 43.20 RCW or an approval from the department of health to serve a specified number of service connections, the population figures in the application or any subsequent water right document are not an attribute limiting exercise of the water right as long as the population to be provided water under the right is consistent with the approved water system plan or specified number.

The challengers assert that these provisions are facially unconstitutional because they allow a municipal water supplier to increase the population served without providing other water rights holders notice or opportunity to be heard. While (4) is completely new, (5) simply requires that the municipality state its present water supply and anticipated future needs, see LAWS OF 2003, 1st Spec. Sess., ch. 5, § 4(4), (5); together, they do not facially undermine vested rights. First, their application is prospective; they apply only when an applicant seeks approval for a new permit or a change of an existing one. Second, they simply integrate such applications into existing water regulatory systems, including systems regulated by the Department of Health under chapter 43.20 RCW. Third, prior to the 2003 amendments, no provision of the water code that we have found or have had our attention drawn to limited municipal water suppliers to some maximum number of clients. Further, the Department of Health has long had the obligation to review and approve water plans to ensure adequacy for a given population. RCW 43.20.250, .260; WAC 246-290-100,-110. As a facial matter, the changes do not violate due process. Again, any impact on a private right is collateral and indirect. Cf. Moore, 151 Wn.2d at 677.

¶31 We affirm the court below and find these provisions do not facially violate substantive or procedural due process.

CONCLUSION

¶32 We affirm in part and reverse in part. We hold that these amendments do not violate separation of powers. While nothing in this opinion should be taken to forestall a proper "as applied" challenge, the challengers have not shown that the risk that some junior rights holders' enjoyment of their rights will be impaired by operation of these amendments facially violates due process.

MADSEN, C.J., and C. JOHNSON, ALEXANDER, SANDERS, OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS, JJ., concur.