Yount v. Salazar et al

Filing 145

ORDER, Plaintiff Yount's motion to require supplementation of the Administrative Record 134 is denied. Signed by Judge David G Campbell on 5/29/13.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Yount, et. al.,
Plaintiffs,

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ORDER

v.

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No. CV11-08171-PCT-DGC

Kenneth Lee Salazar, Secretary of the
Interior, et al.,

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Defendants.

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Plaintiff Gregory Yount filed a motion to require supplementation of the

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Administrative Record (“AR”) in these consolidated cases challenging federal agency

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action. Doc. 134. Federal Defendants filed a response in opposition (Doc. 137) and Mr.

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Yount filed a reply. Doc. 143. The parties have not requested oral argument. For the

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reasons stated below, the Court will deny the motion.

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I.

Background.

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Mr. Yount and a number of corporate, associational, and municipal plaintiffs filed

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complaints challenging the January 18, 2012 decision of the Secretary of the Interior to

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withdraw from mineral development over one million acres of public lands in the Grand

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Canyon Watershed in Northern Arizona. See Public Land Order No. 7787, 77 Fed. Reg.

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2563-01, 2012 WL 122658 (January 18, 2012). As is relevant here, Plaintiffs assert

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claims under the National Environmental Policy Act (“NEPA”), which requires federal

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agencies to consider the environmental impact of any major federal action by, among

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other things, preparing an environmental impact statement (“EIS”). 42 U.S.C. § 4331, et

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seq. Plaintiffs assert additional claims under the Federal Land Policy Management Act,

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the National Forest Management Act, and the Establishment Clause of the United States

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Constitution. Mr. Yount asserts six claims under NEPA, one of which also alleges

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violation of the Establishment Clause. Doc. 27.

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In its January 8, 2013 order, the Court dismissed the NEPA claims of Mr. Yount

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and all but three plaintiffs because they lack prudential standing under NEPA. Doc. 87 at

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47. The Court did not dismiss the non-NEPA claims, and Mr. Yount continues to be a

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plaintiff in this action. Id.

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After Federal Defendants lodged and served the AR on February 11, 2013, Mr.

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Yount became aware that information he had sent to the BLM via email on May 18,

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2012, disputing the agency’s conclusions about the uranium endowment in the

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withdrawal area, had not been included. Doc. 134 at 2; see, generally, Doc. 134 at 5-19.

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Mr. Yount contacted counsel for Federal Defendants who explained that this information

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post-dated the Record of Decision (“ROD”) and was therefore not included because it

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was not before the agency when it completed its final EIS and the Secretary issued his

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withdrawal decision. Id. at 2-3. Counsel’s response also explained that since no further

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federal action remained with respect to the withdrawal, the requirement that the agency

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supplement its EIS on the basis of new information under 40 C.F.R. § 1502.9(c)(1)(ii) did

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not apply. Id.

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Mr. Yount asks the Court to order Federal Defendants to supplement the AR with

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the emails he submitted to the BLM on May 18, 2012, as well as additional emails he

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submitted on March 3, 2012, and “any and all records after the date of the ROD that have

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resulted from new information or analyses.” Doc. 134 at 3-4.

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II.

Discussion.

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A.

Applicability of 40 C.F.R. § 1502.9(c)(1)(ii).

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NEPA’s implementing regulations require federal agencies to supplement draft or

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final environmental impact statements where “[t]here are significant new circumstances

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or information relevant to environmental concerns and bearing on the proposed action or

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its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). “[A]n agency need not supplement an EIS

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every time new information comes to light after the EIS is finalized” because to so hold

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“would render agency decisionmaking intractable, always awaiting updated information

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only to find the new information outdated by the time a decision is made.” Marsh v.

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Oregon Natural Res. Council, 490 U.S. 360, 373 (1989). Rather, the agency must apply

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a “rule of reason” that looks to “the value of the new information to the still pending

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decisionmaking process.” Id. “Supplementation of a prior NEPA environmental analysis

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is only required where ‘there remains major Federal action to occur.’”

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Biological Diversity v. Salazar, 706 F.3d 1085, 1094 (9th Cir. 2013) (quoting Norton v.

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Center for

S. Utah Wilderness Alliance, 542 U.S. 55, 73 (2004)); see also Marsh, 490 U.S. at 374.

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Mr. Yount notes that the ROD and Public Land Order issued on September 18,

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2012, state that the withdrawal is “subject to valid existing rights.” Doc. 143 at 2; see

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Public Land Order No. 7787, 77 Fed. Reg. 2563-01 at 2563. He argues that because

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these rights must be determined through mineral exams conducted by Federal

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Defendants, further federal action remains, and the withdrawal is not complete until the

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validity of all pre-existing claims is determined. Docs. 134 at 3; 143 at 2. The Court is

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not persuaded.

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Even if, as Mr. Yount argues, hundreds or thousands of mining claimants in the

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withdrawal area seek mineral exams to demonstrate that their claims constitute pre-

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existing rights exempt from the withdrawal, this does not mean that the decision-making

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process with respect to the withdrawal itself is incomplete or that major federal action

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remains before the withdrawal is final. In Bennet v. Spear, 520 U.S. 154 (1997), the

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Supreme Court identified two criteria for determining when an agency action is final for

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purposes of judicial review: “First, the action must mark the consummation of the

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agency’s decision-making process – it must not be of a merely tentative or interlocutory

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nature. And second, the action must be one by which rights or obligations have been

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determined, or from which legal consequences will flow.” Id. at 177-78 (internal citations

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and quotation marks omitted).

Here, the Secretary’s decision-making process as to

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whether to withdraw certain lands from mining operations was complete when the

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Secretary issued his decision on September 18, 2012, and, as the Court has already found,

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legal consequences clearly flow from that decision. See Doc. 87.

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Mr. Yount argues that the withdrawal action is like the dam construction project

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approved in Marsh, 490 U.S. at 374, for which the Supreme Court found that significant

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federal action remained. Doc. 143 at 4-5. The Court does not agree. In Marsh, dam

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construction was incomplete at the time the plaintiffs sought to have the agency consider

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new information regarding possible adverse effects on downstream fishing and water

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turbidity.

490 U.S. at 368-69, 373.

Here, nothing remained to be constructed or

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completed after the final EIS was completed and the withdrawal action went into effect.

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The mineral exams to which Mr. Yount points were not required to effectuate the

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withdrawal; they are required to determine which unpatented mining claims may be

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exempt from the withdrawal. Even if, as Mr. Yount asserts, it takes years for the

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appropriate federal agencies to conduct all the mineral exams needed to show which

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claims are exempt and which are not, this will have no bearing on the withdrawal

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decision itself. The withdrawal has taken effect.

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The Supreme Court’s opinion in Norton, 542 U.S. at 73, is instructive. In Norton,

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the Court recognized that approval of a land use plan “is completed when the plan is

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approved.” 542 U.S. at 73. Mr. Yount argues that Norton is inapposite because the

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approved plan in Norton only set guidelines for land use and did not define specific

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required future actions as does the withdrawal due to its being “subject to” valid existing

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rights that must be determined through required mineral exams. Doc. 143 at 4-5. As

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explained above, however, the fact that mineral exams are required to prove valid

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existing rights for purposes of exemption from the withdrawal has no bearing on the

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finality of the withdrawal itself. Such exams may determine which mining claims are

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exempt from the withdrawal, but they will not alter the fact that the withdrawal is in

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effect as decided by the Secretary of the Interior.

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The Ninth Circuit addressed an analogous situation in Center for Biological

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Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013). In Salazar, the plaintiffs had argued

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that BLM’s issuance of new gravel and air quality permits and an updated reclamation

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bond for a mining operation that had been approved following proper NEPA procedures

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in 1988 required the agency to supplement its original EIS. Id. at 1095. The Ninth

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Circuit disagreed, finding that while the subsequent federal actions may have constituted

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“major federal action” sufficient to trigger their own NEPA requirements, “none of those

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actions affected the validity or completeness of the 1988 approval of the Arizona 1

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Mine’s plan of operations nor did they prevent Denison from mining under that plan.”

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Id. Likewise, the pendency of future mineral exams, even if they constitute major federal

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action in their own right, will not affect the validity or finality of the withdrawal,

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particularly where that action already makes allowance for valid existing rights.

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Mr. Yount argues that Salazar does not apply because the mineral exams in this

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case are “an integral part of” the ROD and Public Law Order effectuating the withdrawal.

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Doc. 143 at 3-4. Because the withdrawal is subject to valid existing rights, Mr. Yount

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argues, its full effect cannot be determined until all required mineral exams are complete.

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Id. at 3. The Court fails to see how conducting mineral exams will be any more integral

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to the withdrawal than the required permits and bonds in Salazar were to the approved

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mining plan. Here, as in Salazar, future federal actions may flow from a federal action

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governing permissible mining operations, but where those future actions have no impact

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on the validity or the finality of the initial action – in this case the withdrawal – the Ninth

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Circuit’s finding that no supplemental EIS is required applies.

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Mr. Yount’s reasoning would require Federal Defendants to keep the original EIS

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process open indefinitely for any and all new information until all those with potentially

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valid claims had exhausted all available remedies for validating their claims. This not

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only would violate the “rule of reason” that requires agencies to consider new evidence

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only to the extent it has value to the “still pending decisionmaking process,” Marsh, 490

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U.S. at 373, it would also “render agency decisionmaking intractable” and ultimately

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frustrate the course of judicial review, see id.

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B.

Grounds for Considering Extra-Record Evidence.

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Courts reviewing agency action are generally limited to consideration of the

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administrative record in existence at the time of the challenged decision. Fla. Power &

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Light Co., v. Lorion, 470 U.S. 729, 734-44 (1985) (“‘[T]he focal point for judicial review

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should be the administrative record already in existence, not some new record made

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initially in the reviewing court.’”) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)); Sw.

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Ctr. For Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)

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(same). The Ninth Circuit has recognized four narrow exceptions to this rule: “(1) if

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admission is necessary to determine whether the agency has considered all relevant

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factors and has explained its decision, (2) if the agency has relied on documents not in the

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record, (3) when supplementing the record is necessary to explain technical terms or

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complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.”

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Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (internal citations and

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quotation marks omitted).

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Because Mr. Yount lacks NEPA standing, he cannot make NEPA claims in this

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case and cannot, therefore, seek supplementation of the AR in support of his NEPA

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claims. Whether any other party can successfully seek to supplement the AR under the

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Ninth Circuit exceptions – with Mr. Yount’s material or other material – is a matter that

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must be decided when the Court considers fully briefed arguments on the NEPA claims

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in this case. The Court will not grant Mr. Yount’s freestanding request that extra-record

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materials be considered.

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IT IS ORDERED that Plaintiff Yount’s motion to require supplementation of the
Administrative Record (Doc. 134) is denied.
Dated this 29th day of May, 2013.

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