National Parks & Con v. Kaiser Eagle Mtn. ( 2009 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL PARKS & CONSERVATION 
ASSOCIATION,
Plaintiff-Appellee,
v.
BUREAU OF LAND MANAGEMENT; No. 05-56814
UNITED STATES DEPARTMENT OF
INTERIOR,  D.C. No.
CV-00-00041-RT
Defendants,
and
KAISER EAGLE MOUNTAIN, INC.;
MINE RECLAMATION CORPORATION,
Defendants-Appellants.

15097
15098 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
DONNA CHARPIED; LAURENCE 
CHARPIED; DESERT PROTECTION
SOCIETY; CENTER FOR COMMUNITY
ACTION AND ENVIRONMENTAL
JUSTICE,
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF
INTERIOR,
Defendant,
BUREAU OF LAND MANAGEMENT;
NATIONAL PARK SERVICE; BRUCE
BABBITT, in his official capacity as Nos. 05-56815
Secretary of the Interior; TOM FRY, 05-56843
in his official capacity as Acting
Director of the Bureau of Land  D.C. No.
Management; AL WRIGHT, in his CV-99-00454-RT
official capacity as Acting
California State Director of the
Bureau of Land Management; TIM
SALT, in his official capacity as
Bureau of Land Management
California Desert District
Manager; ROBERT STANTON, in his
official capacity as Director of the
National Park Service,
Defendants,
and
KAISER EAGLE MOUNTAIN, INC.;
MINE RECLAMATION CORPORATION,
Defendants-Appellants.

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15099
NATIONAL PARKS & CONSERVATION 
ASSOCIATION,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF No. 05-56832
INTERIOR,
Defendant-Appellant,  D.C. No.
CV-00-00041-RT
BUREAU OF LAND MANAGEMENT,
Defendant-Appellant,
and
KAISER EAGLE MOUNTAIN, INC.;
MINE RECLAMATION CORPORATION,
Defendants.

15100 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
DONNA CHARPIED; LAURENCE 
CHARPIED; DESERT PROTECTION
SOCIETY; CENTER FOR COMMUNITY
ACTION AND ENVIRONMENTAL
JUSTICE,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF
INTERIOR; KAISER EAGLE MOUNTAIN
INC.; MINE RECLAMATION
CORPORATION; BUREAU OF LAND
MANAGEMENT; NATIONAL PARK No. 05-56908
SERVICE; BRUCE BABBITT, in his
official capacity as Secretary of  D.C. No.
CV-99-00454-RT
the Interior; TOM FRY, in his
official capacity as Acting OPINION
Director of the Bureau of Land
Management; AL WRIGHT, in his
official capacity as Acting
California State Director of the
Bureau of Land Management; TIM
SALT, in his official capacity as
Bureau of Land Management
California Desert District
Manager; ROBERT STANTON, in his
official capacity as Director of the
National Park Service,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, District Judge, Presiding
Argued and Submitted
December 6, 2007—Pasadena, California
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15101
Filed November 10, 2009
Before: Harry Pregerson, Stephen S. Trott and
Richard A. Paez, Circuit Judges.
Opinion by Judge Pregerson;
Dissent by Judge Trott
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15105
COUNSEL
Leonard J. Feldman, Heller Ehrman LLP, Seattle, Washing-
ton, for defendant-appellants Kaiser Eagle Mountain, LLC
and Mine Reclamation, LLC.
Tamara N. Rountree, United States Department of Justice,
Environment and Natural Resources Division, Washington.
D.C., for federal government defendant-appellants.
Deborah Sivas and Noah Long, Stanford Environmental Law
Clinic, Stanford, California, for plaintiff-appellee National
Parks Conservation Association.
Stephan C. Volker, Law Offices of Stephan C. Volker, Oak-
land, California, for plantiffs-appellees Donna and Laurence
Charpied.
15106 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
OPINION
PREGERSON, Circuit Judge:
Kaiser Eagle Mountain, Inc. (“Kaiser”) seeks to build a
landfill on a former Kaiser mining site near Joshua Tree
National Park (“Joshua Tree”). As part of its landfill develop-
ment plan, Kaiser sought to exchange certain private lands for
several parcels of land surrounding the mine site and owned
by the Bureau of Land Managment (“BLM”). Several parties,
including the National Parks Conservation Association
(“Conservation Association”) and Donna and Laurence Char-
pied (“the Charpieds”), challenged the land exchange. Never-
theless, the BLM approved the land exchange, as did the
Interior Board of Land Appeals (“Appeals Board”).
The Conservation Association and the Charpieds pursued
challenges in district court on several grounds, including vio-
lations of the Federal Land and Policy Management Act
(“Management Act”) and National Environmental Policy Act
(“NEPA”). The district court held for the Conservation Asso-
ciation and Charpieds on the Management Act claims and
some, but not all, of the NEPA claims. We have jurisdiction
under 28 U.S.C. § 1291 and affirm in part and reverse in part.
I. Background
Kaiser owned and operated an iron ore mine near the Eagle
Mountain range in Riverside County, California from 1948 to
1983. The mine area covered over 5,000 acres and included
four large open pits. The mine area also included a 429-acre
“Townsite,” which housed mine workers and support person-
nel, and over which the United States owns a reversionary
interest. Though Kaiser currently leases the Townsite for use
as a correctional facility, the majority of the mine site lies dor-
mant. The disturbed lands, which contain large quantities of
mine tailings, have not been reclaimed.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15107
The BLM owns several parcels of land surrounding the for-
mer mine site. In 1989, Kaiser sought to acquire these parcels
through a land exchange. Under Kaiser’s proposal, Kaiser will
acquire 3,481 acres of public land, the United States’s rever-
sionary interest in the Townsite, and permanent rights-of-way
over the dormant Eagle Mountain Railroad and Eagle Moun-
tain Road. In exchange, Kaiser offered 2,846 acres of private
land near other BLM lands and within an area designated as
critical habitat for the desert tortoise.
Kaiser’s ultimate goal is to develop the largest landfill in
the United States. The proposed landfill project will cover
4,654 acres, including support and “buffer” areas. The landfill
will accept solid wastes from several Southern California
communities. The majority of the waste will be transported by
train, though there will also be some truck and “self-haul”
loads. The project is designed to operate for 117 years. At its
peak, the proposed landfill will accept 20,000 tons of garbage
per day, six days a week, for up to sixteen hours per day. Dur-
ing the final phase of the project, to commence in roughly
seventy-eight years, garbage will be deposited into the largest
of the four open mining pits, the East Pit. The remaining pits
will not be filled. The total capacity of the proposed landfill
is approximately 708 million tons.
Both Joshua Tree and the Kaiser mine site lie within a large
desert wilderness area that is home to several sensitive plant
and animal species, including the desert tortoise and Bighorn
sheep. The proposed landfill site sits within one and-a-half
miles of Joshua Tree. The landfill would be visible from
remote areas of Joshua Tree.
As part of its analysis of the proposed land exchange, the
BLM produced a Draft Environmental Impact Statement
(“EIS”). The EIS described the purpose and need of the proj-
ect as follows:
The primary purpose of the Project is to develop a
new Class III nonhazardous municipal solid waste
15108 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
landfill to meet the projected long-term demand for
environmentally sound landfill capacity in Southern
California; provide a long-term income source from
the development of a nonhazardous municipal solid
waste landfill; find an economically viable use for
the existing mining by-products at the Kaiser Eagle
Mountain Mine site, including use of existing aggre-
gate and overburden; and provide long-term land use
and development goals and guidance for the Town-
site.
With these purposes in mind, the BLM considered six alter-
natives in detail: (1) No action; (2) Reduced volume of waste;
(3) Alternate road access; (4) Rail access only; (5) Landfill on
Kaiser land only; and (6) Landfill development without
Townsite development.
The BLM also commissioned an appraisal report on the
proposed exchange lands from David J. Yerke, Inc. (“the
Yerke appraisal”). The Yerke appraisal found that the “high-
est and best use” of the public lands in question was “holding
for speculative investment.” The appraisal explicitly stated
that it did “not take into consideration any aspects of the pro-
posed landfill project.” The Yerke appraisal therefore valued
the public parcels surrounding the mine site at roughly $77
per acre and the Townsite at roughly $106 per acre.1 The
appraisal valued the Kaiser lands to be exchanged at approxi-
mately $104 per acre. The BLM subsequently required Kaiser
to pay $20,100, the difference between the value of the
exchanged public lands and Kaiser’s parcels.
In 1997, the BLM adopted a Final EIS, incorporating the
Draft EIS, and issued a Record of Decision approving the
land exchange as proposed by Kaiser. The Conservation
1
The Los Angeles County Sanitation District has since entered into a
conditional agreement to purchase the landfill property and permits for
over $8,800 per acre.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15109
Association and Charpieds filed administrative protests with
the BLM. When those protests were denied, the Conservation
Association and Charpieds separately appealed to the Appeals
Board. The Appeals Board affirmed the BLM’s decision in a
separate decision, incorporating the Draft and Final EIS, in
September 1999.
The Conservation Association and the Charpieds (hereinaf-
ter, collectively “Conservation Association”) filed separate
complaints in the district court seeking review under the
Administrative Procedure Act and alleging violations of the
Management Act and NEPA. The district court consolidated
the complaints. On cross-motions for summary judgment, the
district court ruled in the Conservation Association’s favor, in
part. Looking only to the Record of Decision, the district
court set aside the land exchange because: (1) the BLM did
not give “full consideration” to whether the land exchange is
in the public interest; (2) the Yerke appraisal failed to con-
sider a landfill as a “highest and best use”; (3) the EIS’s “pur-
pose and need” statement was too narrowly drawn, with
accordingly narrow potential alternatives foreordaining land-
fill development; and (4) the BLM failed to take a “hard look”
at potential impacts on Bighorn sheep and the effects of nitro-
gen enrichment on the nutrient-poor desert environment. This
appeal followed.
II. Standard of Review
We review a grant or denial of summary judgment de
novo. Northwest Envtl. Advocates v. Nat’l Marine Fisheries
Serv., 460 F.3d 1125, 1132 (9th Cir. 2006). We may only
overturn agency action that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Great
Basin Mine Watch v. Hankins, 456 F.3d 955, 961-62 (9th Cir.
2006); 5 U.S.C. § 706(2)(A).
III. Scope of Review
As a preliminary matter, we must first identify the agency
action under our review. The Conservation Association
15110 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
argues, as the district court held, that the Record of Decision
constitutes final agency action. We disagree.
[1] Under the Administrative Procedure Act, only “final
agency action” is subject to judicial review. 5 U.S.C. § 704.
The BLM is part of the Department of the Interior (“DOI”).
DOI regulations state that, barring a petition for a stay, a deci-
sion will become effective upon the expiration of the appeal
period. 43 C.F.R. § 4.21(a)(2). If an Appeals Board fails to act
upon a petition for a stay or denies such a petition, the deci-
sion becomes effective immediately. 43 C.F.R. § 4.21(a)(3).
The Appeals Board’s decisions, in contrast, constitute final
agency action when made. “The Board [of Land Appeals]
decides finally for the Department [of Interior] appeals to the
head of the Department from decisions rendered by Depart-
mental officials relating to . . . [t]he use and disposition of
public lands . . . .” 43 C.F.R. § 4.1(b)(3)(i). “A decision of the
Board shall constitute final agency action and be effective
upon the date of issuance, unless the decision itself provides
otherwise.” 43 C.F.R. § 4.403.2
[2] In the case before us, the Record of Decision never
became effective, and cannot serve as the agency’s final
action. The language of the Administrative Procedure Act
does not support the Conservation Association’s arguments.
“[A]gency action otherwise final is final . . . whether or not
there has been presented or determined an application for . . .
any form of reconsideration, or, unless the agency otherwise
requires by rule and provides that the action meanwhile is
inoperative, for an appeal to superior agency authority.” 5
U.S.C. § 704. The Conservation Association contends that no
rule renders the Record of Decision inoperative during the
2
The Conservation Association argues that 43 C.F.R. § 4.403 applies
only to Appeals Board actions, and does nothing to rob the Record of
Decision of its finality. Taken to its logical conclusion, this argument
would allow for two independent, and potentially conflicting, “final”
agency actions. This cannot be.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15111
pendency of the appeal, and therefore the Record of Decision
is a final action. This court has held, however, that “exercise
of an optional appeal to a Department ALJ renders the initial
Administrator’s decision nonfinal for purposes of judicial
review under the APA.” Acura of Bellevue v. Reich, 90 F.3d
1403, 1407 (9th Cir. 1996). Furthermore, the Conservation
Association’s argument ignores the “otherwise final” lan-
guage of the Administrative Procedure Act. DOI rules need
not explicitly render the Record of Decision inoperative
because, in a case such as that before us, the decision was
never effective in the first instance.3
[3] We note that in some cases, a Record of Decision may
constitute final agency action. For example, where there is no
administrative appeal, a Record of Decision will become
effective and final following the expiration of the appeal
period, in accordance with 43 C.F.R. § 4.21(a)(2). Similarly,
where the Appeals Board denies a petition for a stay, a Record
of Decision will become effective and final in accordance
with 43 C.F.R. § 4.21(a)(3). Indeed, this was the situation in
Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172
(9th Cir. 2000). There, the Appeals Board denied a petition
for a stay. Id. at 1175. This court therefore reviewed the
Record of Decision as the final agency action. See, e.g., id. at
1182. In the case before us, in contrast, the Appeals Board
3
Contrary to Kaiser’s suggestion, our holding is not compelled by 43
C.F.R. § 4.21(c). § 4.21(c) states:
No decision which at the time of its rendition is subject to appeal
to the Director or an Appeals Board shall be considered final so
as to be agency action subject to judicial review under 5 U.S.C.
704, unless [1] a petition for a stay of decision has been timely
filed and [2] the decision being appealed has been made effective
....
(Emphasis added). This subsection deals with exhaustion of administrative
remedies, not finality of agency action. If taken, as Kaiser suggests, to
touch upon finality of agency action, § 4.21(c)’s requirement that a peti-
tion for stay be timely filed would render all actions not subject to a peti-
tion for stay non-final, and thus unreviewable.
15112 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
granted a stay. The Record of Decision therefore never
became effective and was not the final agency action. We
reverse the district court to the extent that it limited its review
to the Record of Decision. The Appeals Board decision,
which incorporated the Environmental Impact Statement, is
the final agency action before us for review.
IV. Federal Land and Policy Management Act Claims
Kaiser and the BLM appeal the district court’s determina-
tions that the Yerke appraisal was inadequate and that the
BLM failed to give “full consideration” to whether the land
exchange well serves the public interest.
A. Highest and Best Use
1. Exhaustion of Administrative Remedies
In district court, the Conservation Association challenged
the BLM’s appraisal of the exchange lands on the ground that
the BLM failed to consider a landfill as the “highest and best
use” of the public parcels. Kaiser and the BLM argue, as they
did before the district court, that the Conservation Association
failed to exhaust this issue before the Appeals Board, and that
this court should not review the highest and best use claim.
[4] “As a general rule, we will not consider issues not pre-
sented before an administrative proceeding at the appropriate
time.” Marathon Oil Co. v. United States, 807 F.2d 759, 767-
68 (9th Cir. 1986). However, we have repeatedly held that the
exhaustion requirement should be interpreted broadly. Plain-
tiffs fulfill the requirement if their appeal “provided sufficient
notice to the [agency] to afford it the opportunity to rectify the
violations that the plaintiffs alleged.” Native Ecosystems v.
Dombeck, 304 F.3d 886, 899 (9th Cir. 2002). Plaintiffs need
not state their claims in precise legal terms, and need only
raise an issue “with sufficient clarity to allow the decision
maker to understand and rule on the issue raised, but there is
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15113
no bright-line standard as to when this requirement has been
met.” Great Basin Mine Watch v. Hankins, 456 F.3d at 968
(internal quotation omitted).
[5] In the case before us, we are satisfied that the Appeals
Board received sufficient notice to allow the agency to
respond to the highest and best use issue. Although the Con-
servation Association did not use the words “highest and best
use,” its Statement of Reasons for appeal to the Appeals
Board stated:
THE BLM WILL NOT RECEIVE FAIR MARKET
VALUE FOR THE EXCHANGE. Any disposal of
federal lands must be compensated at “fair market
value of the use of public lands and their resources.”
43 U.S.C.A. § 1701(a) . . . . Kaiser will also pay
BLM a lump sum of $20,100, which is below the
fair market value. Kaiser anticipates huge profits
from a landfill operation on the undervalued BLM
land . . . .
(emphasis added). In their separate Statement of Reasons, the
Charpieds argued that “the public should receive fair appraisal
for its lands,” and “[n]ot an appraisal that has been artificially
reduced in value through instructions to discount develop-
ments, improvements, and recent zoning changes.”
[6] These statements adequately raised the highest and best
use issue before the Appeals Board.4 The Yerke appraisal
4
The dissent finds language such as “appraisers failed to consider that
the Federal land to be exchanged is proposed to be used as a landfill, and
that, as a result, the land should be valued . . . in comparison to landfill
sites” satisfactory to exhaust the highest and best use issue. Dissent at
15178 (quoting Donna Charpied, 137 IBLA 45, 47 (1996). We see no
meaningful distinction between this language and that presented in the
case before us, which highlights that Kaiser will reap profits “from a land-
fill operation,” will pay “below the fair market value,” and that the
appraisal unfairly ignored development and zoning changes.
15114 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
explicitly states that it does not consider any aspect of the
landfill project. The Conservation Association’s Statement of
Reasons highlighted the BLM’s failure to appraise the land’s
fair market value as a landfill. The highest and best use analy-
sis is an integral part of the appraisal process. 43 C.F.R.
§ 2201.3-2(a)(1) (“In estimating market value, the appraiser
shall: (1) Determine the highest and best use of the property
to be appraised[.]”). Under such a backdrop, the Appeals
Board had sufficient notice to address the highest and best use
issue.
2. Merits of the Highest and Best Use Claim
The statutory and regulatory requirements governing
appraisals are numerous. The Management Act requires the
BLM to appraise lands before agreeing to a land exchange. 43
U.S.C. § 1716(d)(1). This appraisal must set forth an opinion
regarding the market value of the lands “supported by the pre-
sentation and analysis of relevant market information.” 43
C.F.R. § 2200.0-5(c). Market value “means the most probable
price . . . that lands or interests in lands should bring in a com-
petitive and open market . . . where the buyer and seller each
acts prudently and knowledgeably.” 43 C.F.R. § 2200.0-5(n).
“In estimating market value, the appraiser shall: (1) Deter-
mine the highest and best use of the property to be appraised”;
and “(2) Estimate the value of the lands and interests as if in
private ownership and available for sale in the open market.”
43 C.F.R. § 2201.3-2(a)(1)-(2). “Highest and best use means
the most probable legal use of a property, based on market
evidence as of the date of valuation, expressed in an apprais-
er’s supported opinion.” 43 C.F.R. § 2200.0-5(k).
The appraisal must also comply, to the extent appropriate,
with the separate requirements of the Uniform Appraisal Stan-
dards for Federal Land Acquisitions. 43 C.F.R. § 2201.3.
Under the Uniform Appraisal Standards definition, highest
and best use is “ ‘[t]he highest and most profitable use for
which the property is adaptable and needed or likely to be
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15115
needed in the reasonably near future.’ ” The Appraisal Insti-
tute, Uniform Appraisal Standards for Federal Land Acquisi-
tions 34 (quoting Olson v. United States, 292 U.S. 246, 255
(1934)), available at http://www.usdoj.gov/enrd/land-ack/
yb2001.pdf. While Department of Interior regulations define
highest and best use as the “most probable” use of land, the
Uniform Standards only require “reasonable probability” of a
given use. Uniform Standards at 34; Desert Citizens, 231 F.3d
at 1181 n.10. Under the Uniform Standards, the highest and
best use must also be: (1) physically possible; (2) legally per-
missible; (3) financially feasible; and (4) must result in the
highest value. Uniform Standards at 17.
In Desert Citizens, we examined a highest and best use
claim almost identical to that presented in the instant case.
Desert Citizens, 231 F.3d at 1175, 1180. In Desert Citizens,
a mine operator proposed a land exchange to the BLM in con-
nection with the development of the Mesquite Regional Land-
fill on and near the Mesquite Mine. Id. at 1175. An appraisal
of the public lands concluded that the highest and best use
was “open space” or “mine support.” Id. At the time of the
appraisal, the mine operator had already applied for county
permits to build the landfill. Id. The district court upheld the
appraisal on the grounds that there was no market demand for
a landfill and that landfill development was an expensive,
risky venture. Id. at 1180.
[7] We reversed. After analyzing the statutory and regula-
tory framework regarding highest and best use, we held that
“uses that are reasonably probable must be analyzed as a nec-
essary part of the highest and best use determination. This
analysis must have due regard for the existing business or
wants of the community, or such needs as may be reasonably
expected to develop in the near future.” Id. at 1181 (internal
quotations and citations omitted). We observed that because
the lands in question “were expected to be used for landfill
purposes” and because the “existence of other landfill propos-
als in the region indicated a general market for landfill devel-
15116 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
opment,” landfill use was reasonably probable and must “at
the very least” have been considered in the highest and best
use analysis. Id. (emphasis added).
We then proceeded to analyze the physical, legal, and
financial feasibility of the proposed Mesquite Landfill, in
accordance with the Uniform Appraisal Standards. Id. at
1184. In our discussion of financial feasibility, we held that
“a regional market and the presence of competitors sponsor-
ing similar projects made reasonably probable, prior to the . . .
appraisal, that use of the lands for landfill purposes was finan-
cially feasible.” Id. at 1185. Among the other landfill propos-
als we relied upon as evidence of market demand was the
“Eagle Mountain Regional Landfill proposed by Kaiser.” Id.
[8] The facts of Desert Citizens are virtually identical to the
facts before us in the instant case. Kaiser applied for county
permits before the Yerke appraisal was drafted. The Yerke
appraisal was clearly cognizant of Kaiser’s proposal, yet
explicitly stated that it was not taking “into consideration any
aspect of the proposed landfill project.” Kaiser and the BLM
do not contest the physical or legal feasibility of constructing
a landfill at the Eagle Mountain site. As for financial feasibil-
ity, we held in Desert Citizens that the presence of competing
proposals alone is sufficient to establish market demand and
financial feasibility. Id. If the Kaiser landfill proposal was
sufficient to establish a reasonable probability of the Mesquite
Landfill’s financial feasibility, the Mesquite Landfill and
other proposals must demonstrate similar feasibility of the
Kaiser project.
The BLM tries to distinguish Desert Citizens by arguing
that here, BLM market analyses did not show that there were
other landfill proposals in the area, and therefore there is no
evidence of market demand. This argument distorts the facts
of Desert Citizens and misses the point entirely. Contrary to
the BLM’s assertions, in Desert Citizens we did not look to
the BLM’s own market analyses for proof of market demand.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15117
To the contrary, the BLM’s position, as articulated by the dis-
trict court, was that market demand did not exist. Id. at 1180.
In reversing this determination, we looked not to any BLM
market analysis, but rather to the obvious and well-known
presence of competing landfill proposals. Id. at 1185. Indeed,
we found the appraiser’s willful ignorance of facts of “general
notoriety” “particularly troubling.” Id. at 1182.
[9] Kaiser and the BLM have failed to distinguish the facts
of this case from those of Desert Citizens.5 As such, the high-
5
Kaiser and the BLM rely heavily on a 2002 report compiled by the
Herzog Group as part of the litigation of this case. This report was not
before either the BLM or the Appeals Board. Accordingly, we do not con-
sider it here. See, e.g., Ctr. for Biological Diversity v. U.S. Fish & Wildlife
Serv., 450 F.3d 930, 943 (9th Cir. 2006) (“Parties may not use post-
decision information as a new rationalization either for sustaining or
attacking the Agency’s decision.” (internal quotation omitted)).
The dissent erroneously concludes that the Herzog “appraisal” cured
any deficiency in the Yerke appraisal, and that we should therefore con-
sider the Herzog report under our decision in Friends of the Clearwater
v. Dombeck, 222 F.3d 552 (9th Cir. 2000). Dissent at 15183-84. In Dom-
beck, we considered supplemental materials presented after the onset of
litigation where a remand would be pointless because a court “could not
order the [agency] to conduct studies already completed to answer ques-
tions the [agency] already answered on a basis that could not be success-
fully challenged.” Id. at 560 (internal quotation omitted). Kaiser argues
that (1) the Herzog report did consider highest and best use, as required
by our decision in Desert Citizens, (2) the BLM has rendered a final deci-
sion accepting the Herzog analysis, and (3) the Conservation Association
failed to appeal that “decision.”
First, we note that Dombeck concerned a NEPA violation, whereas here
we examine a Management Act violation. Dombeck also specifically dis-
tinguished suits to compel agency action from challenges, such as that
before us here, to a final agency action. Regardless of these distinctions,
Dombeck is inapplicable because the record does not demonstrate that the
BLM has cured the defects of the Yerke appraisal on a basis that is
immune to challenge. Kaiser points to, and the dissent apparently relies
upon, a letter from a BLM district manager to the State Director in which
the district manager favorably references the Herzog report in the course
of reiterating that the land exchange well serves the public interest. This
15118 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
est and best use analysis should have taken the reasonably
probable use of public lands for a landfill into consideration
as part of the highest and best use analysis. As we stated in
Desert Citizens:
[T]he use of the land as a landfill was not only rea-
sonable, it was the specific intent of the exchange
that it be used for that purpose. There is no princi-
pled reason why the BLM, or any federal agency,
should remain willfully blind to the value of federal
lands by acting contrary to the most elementary prin-
ciples of real estate transactions.
231 F.3d at 1184. We therefore affirm the district court’s
grant of summary judgment on the highest and best use claim
under the Management Act.
B. The Public Interest Determination
[10] Under the Federal Land Policy and Management Act,
the BLM must determine that “the public interest will be well
served” by a land exchange before approving such an
exchange. 43 U.S.C. § 1716(a); see also 43 C.F.R. § 2200.0-
6(b). This determination “shall give full consideration to bet-
ter Federal land management and the needs of State and local
people, including needs for lands for the economy, commu-
nity expansion, recreation areas . . . and fish and wildlife
. . . .” 43 U.S.C. § 1716(a). A determination that an exchange
well-serves the public interest must be predicated on a finding
that:
letter hardly establishes that the BLM has cured the Management Act defi-
ciencies of the Yerke appraisal “on a basis that could not be successfully
challenged.” There is nothing in the record to indicate that the BLM has
rendered a final, appealable decision on an appraisal that properly consid-
ers landfill use as a highest and best use. Dombeck therefore does not
apply, and we do not consider the 2002 Herzog report.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15119
(1) The resource values and the public objectives
that the Federal lands or interests to be conveyed
may serve if retained in Federal ownership are not
more than the resource values of the non-Federal
lands or interests and the public objectives they
could serve if acquired,[6 ] and (2) The intended use
of the conveyed Federal lands will not, in the deter-
mination of the authorized officer, significantly con-
flict with established management objectives on
adjacent Federal lands and Indian trust lands. Such
finding and the supporting rationale shall be made
part of the administrative record.
43 C.F.R. § 2200.0-6(b).
[11] The Management Act does not define the term “full
consideration.” Our review is thus limited to the question
whether the BLM’s interpretation of the term is based on a
permissible construction of the statute. Chevron U.S.A., Inc.
v. Nat’l Res. Def. Council, 467 U.S. 837, 843 (1984). We
review the entire record to determine whether the agency’s
decision was based on a reasonable consideration of the rele-
vant factors. Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir.
1999).
[12] The district court’s analysis was constrained by its
decision to review only the Record of Decision. Having held
that the Appeals Board’s decision, which incorporates the
EIS, is the final agency action under review, we examine a
broader set of materials than did the district court. The Final
EIS alone includes over 1,600 pages of material not consid-
ered by the district court, including detailed environmental
analyses. Though we do not necessarily agree with the BLM’s
public interest determination, the record as a whole estab-
lishes that the BLM’s interpretation of “full consideration,” as
6
In other words, the BLM must find that the resource values of the pub-
lic land being conveyed do not outweigh the resource values of the private
land being acquired.
15120 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
evinced by the analyses in the EIS, is permissible under 43
U.S.C. § 1716(a).7 Accordingly, we reverse the district court’s
determination on this issue.
V. National Environmental Policy Act Claims
[13] The National Environmental Policy Act requires fed-
eral agencies to prepare an Environmental Impact Statement
discussing, among other things, the environmental impact of
a proposed action, any adverse environmental effects which
cannot be avoided, and alternatives to the proposed action. 42
U.S.C. § 4332(2)(C). In addition, implementing regulations
require that the agency state the underlying purpose and need
for the proposed action. 40 C.F.R. § 1502.13. Kaiser and the
BLM appeal the district court’s holding that the EIS was defi-
cient with respect to purpose and need, reasonable alterna-
tives, impacts on Bighorn sheep, and eutrophication.8
A. Purpose and Need and Reasonable Alternatives
[14] Agencies enjoy “considerable discretion” to define the
purpose and need of a project. Friends of Southeast’s Future
v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998). However,
“an agency cannot define its objectives in unreasonably nar-
row terms.” City of Carmel-By-The-Sea v. United States
Dep’t. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). As the
Friends court stated, “An agency may not define the objec-
tives of its action in terms so unreasonably narrow that only
one alternative from among the environmentally benign ones
in the agency’s power would accomplish the goals of the
7
In agreeing with this conclusion, the dissent quotes several examples
of these sufficient Management Act public interest analyses, albeit in the
context of a separate “purpose and need” issue under the National Envi-
ronmental Policy Act. Dissent at 15144-53.
8
Eutrophication, in this context, refers to the introduction of nutrients to
the desert environment. The eutrophication discussion in this case focuses
on two potential pathways: (1) landfill waste material; and (2) nitrogen-
bearing airborne emissions.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15121
agency’s action, and the EIS would become a foreordained
formality.” Friends, 153 F.3d at 1066 (quoting Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.
Cir. 1991), cert. denied, 502 U.S. 994, 112 S. Ct. 616, 116 L.
Ed. 2d 638 (1991)) (correction in original). We evaluate an
agency’s statement of purpose under a reasonableness stan-
dard. Id. at 1066-67.
In the case before us, the purpose and need statement reads:
The primary purpose of the Project is to develop a
new Class III nonhazardous municipal solid waste
landfill to meet the projected long-term demand for
environmentally sound landfill capacity in Southern
California; provide a long-term income source from
the development of a nonhazardous municipal solid
waste landfill; find an economically viable use for
the existing by-products at the Kaiser Eagle Moun-
tain Mine site, including use of existing aggregate
and overburden; and provide long-term land use and
development goals and guidance for the Townsite.
[15] The Conservation Association contends, and the BLM
does not dispute, that the majority of these purposes and
needs respond to Kaiser’s goals, not those of the BLM. Other
circuits have held that agencies must acknowledge private
goals. Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162,
1175 (10th Cir. 1999) (“Agencies . . . are precluded from
completely ignoring a private applicant’s objectives.”); Bur-
lington, 938 F.2d at 196 (“[T]he agency should take into
account the needs and goals of the parties involved in the
application.”). Requiring agencies to consider private objec-
tives, however, is a far cry from mandating that those private
interests define the scope of the proposed project. Instead, as
the Burlington court held:
[A]gencies must look hard at the factors relevant to
the definition of purpose. . . . Perhaps more impor-
15122 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
tantly [than the need to take private interests into
account], an agency should always consider the
views of Congress, expressed, to the extent that the
agency can determine them, in the agency’s statutory
authorization to act, as well as in other congressional
directives.
Id. We agree.
Burlington does not conflict with our decision in City of
Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986). In Angoon,
a private party sought a federal permit to build a log-transfer
facility on its own lands. Id. at 1019. As part of an EIS, the
Army Corps of Engineers (“the Corps”) identified a purpose
and need to provide a “safe, cost effective means of transfer-
ring timber harvested on [the privately owned] land.” Id. at
1021. The district court eliminated the private land specifica-
tion, and restated the purpose and need as “commercial timber
harvesting.” Id. We reversed, rejecting the district court’s
“broad social interest” formulation in favor of the Corps’s
“more balanced” statement. Id.
Angoon is distinguishable from the situation in the case
before us. In Angoon, the issue was whether the Corps should
issue a permit. Id. at 1017-18. As discussed above, agencies
must look hard at the factors relevant to definition of purpose.
In Angoon, those factors included a regulatory framework far
different from that guiding the BLM here. The relevant Corps
regulations in Angoon explicitly stated that “every application
has both an applicant’s purpose and need and a public purpose
and need” and specified that a Corps EIS must document
alternatives “which would satisfy the purpose and need . . . for
which the applicant has submitted his proposal.” Id. at 1021
(citing 33 C.F.R. pt. 230, App. B(11)(b)(4)-(5) (1985)
(emphasis added)). We therefore held that the Corps’s pur-
pose and need statement, which emphasized private goals,
reasonably balanced the relevant factors. Id.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15123
[16] In contrast, the Department of Interior has promul-
gated no regulations emphasizing the primacy of private inter-
ests. The DOI analogue to the Corps’s regulation, 40 C.F.R.
§ 1502.13, merely requires that an EIS “briefly specify the
underlying purpose and need to which the agency is respond-
ing in proposing the alternatives including the proposed
action.” Furthermore, DOI’s NEPA guidelines take the exact
opposite approach to that of the Corps regulations in Angoon.
DOI’s NEPA handbook explains that the “purpose and need
statement for an externally generated action must describe the
BLM purpose and need, not an applicant’s or external propo-
nent’s purpose and need.” Department of Interior, Bureau of
Land Management, National Environmental Policy Act Hand-
book 35,(citing 40 C.F.R. § 1502.13) (emphasis added),
available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/
Information_Resources_Management/policy/blm_handbook.
Par.24487.File.dat/h1790-1-2008-1.pdf (citing 40 C.F.R.
§ 1502.13) (emphasis added). “The applicant’s purpose and
need may provide useful background information, but this
description must not be confused with the BLM purpose and
need for action . . . . It is the BLM purpose and need for
action that will dictate the range of alternatives . . . .” Id.
The BLM’s definition of the project’s purpose will neces-
sarily affect the range of alternatives considered, because
when “the purpose is to accomplish one thing, it makes no
sense to consider the alternative ways by which another thing
might be achieved.” Angoon, 803 F.2d at 1021. Our task is to
determine whether the BLM’s purpose and need statement
properly states the BLM’s purpose and need, against the back-
ground of a private need, in a manner broad enough to allow
consideration of a reasonable range of alternatives. In the case
before us, the purpose and need statement sets out four goals:
(1) to meet long-term landfill demand; (2) to provide a long-
term income source from a landfill; (3) to find a viable use for
mine byproducts; and (4) to develop long-term development
plans for the Townsite. The first, to meet long-term landfill
demand, is unquestionably a valid BLM purpose. The remain-
15124 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
ing three goals, however, can hardly be characterized as BLM
needs. Kaiser and its successors in interest, not the BLM, will
be the recipient of any long-term income from the landfill.
That the BLM does not find a viable use for Kaiser’s mine
byproducts is undoubtedly attractive to Kaiser, but hardly
necessary to the BLM. Kaiser, not the BLM, currently oper-
ates the Townsite, in which it stands to receive a fee interest,
and would be the beneficiary of any long-term development
plans.
The purpose and need statement, though it includes one
BLM goal, also sets out three private objectives as defining
characteristics of the proposed project. Such a narrowly
drawn statement necessarily and unreasonably constrains the
possible range of alternatives. The BLM considered only six
alternatives in detail: (1) No action; (2) Reduced volume of
waste; (3) Alternate road access; (4) Rail access only; (5)
Landfill on Kaiser land only; and (6) Landfill development
without Townsite development. All of these options, save the
No Action alternative, would result in landfill development of
some sort and would require some portion of the land
exchange to occur.
The BLM proposed several alternatives that would have
been responsive to the need to meet long-term landfill
demand, such as a landfill on other Kaiser property, waste
diversion, offsite landfill locations, landfill mining, alternative
Townsite locations, and alternative Townsite uses. The BLM
did not, however, consider these options in any detail because
each of these alternatives failed to meet the narrowly drawn
project objectives, which required that Kaiser’s private needs
be met.
[17] Our holdings in Friends and Carmel-By-The-Sea for-
bid the BLM to define its objectives in unreasonably narrow
terms. The BLM may not circumvent this proscription by
adopting private interests to draft a narrow purpose and need
statement that excludes alternatives that fail to meet specific
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15125
private objectives, yet that was the result of the process here.
The BLM adopted Kaiser’s interests as its own to craft a pur-
pose and need statement so narrowly drawn as to foreordain
approval of the land exchange.9 As a result of this unreason-
ably narrow purpose and need statement, the BLM necessarily
considered an unreasonably narrow range of alternatives. We
therefore affirm the district court’s grant of summary judg-
ment on both the “purpose and need” and “reasonable range
of alternatives” claims under NEPA.
B. Bighorn Sheep
[18] Under NEPA, an EIS must contain a “reasonably thor-
ough” discussion of an action’s environmental consequences.
State of California v. Block, 690 F.2d 753, 761 (9th Cir.
1982). An EIS must “provide full and fair discussion of sig-
nificant environmental impacts.” 40 C.F.R. §1502.1. Our
review is limited to whether an EIS took a “hard look” at the
environmental impacts of a proposed action. Id. We must
make a “pragmatic judgment whether the EIS’s form, content
and preparation foster both informed decision-making and
informed public participation.” Block, 690 F.2d at 761.
[19] Contrary to the district court’s conclusion, we find that
the EIS contains extensive analyses of potential impacts on
Bighorn sheep, including migration patterns, habitat loss, and
water accessibility. The district court cited two particular defi-
ciencies with respect to Bighorn sheep. The district court
9
The dissent conflates two unrelated issues: (1) adequacy of the purpose
and need statement under NEPA and (2) adequacy of the public interest
determination under the Management Act. Dissent at 15149-50. Whether
the BLM gave full consideration to public interest factors, however, has
no bearing on the sufficiency of the EIS under NEPA. The dissent con-
cludes that so long as the BLM properly concluded that the project is in
the public interest, there is no NEPA violation—that is, that the ends jus-
tify the means. We disagree. The fact that a private pursuit may also ulti-
mately benefit the public interest does not in and of itself compel the
government to pursue the private objective.
15126 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
found that the EIS did not address the potential impact of
tortoise-proof fencing on sheep migration patterns and failed
to specify what a proposed “buffer zone” would entail.
[20] The EIS does, however, contain the information the
district court believed was missing.10 The EIS includes a 56-
page report on Bighorn sheep. The report is based on an
extensive monitoring study, utilizing sheep capture, radio
telemetry, and genetic testing methods. The EIS states that
any installed tortoise-proof fencing will be designed to allow
for sheep movement.11 The EIS explains that the buffer zone
constituting “644 acres of potential habitat would remain as
natural open space around the periphery of the proposed land-
fill. This habitat would provide a buffer zone between the
landfill operation and relocated sheep population.”12 Though
the EIS does not “exactly specify” what the buffer zone
entails, it does contain a “reasonably complete” discussion of
this mitigation measure. See Okanogan Highlands Alliance v.
Williams, 236 F.3d 468, 473 (9th Cir. 2000) (holding that an
EIS must include a “reasonably complete discussion of possi-
ble mitigation measures.”). We are not authorized to substi-
tute our judgment for that of the agency. Block, 690 F.2d at
761. Having concluded that the BLM did take a “hard look”
at Bighorn sheep, our review is at an end. Id. We reverse the
district court on this issue.
C. Eutrophication
[21] We apply the same analysis to the district court’s con-
clusion that the EIS insufficiently addressed the potential for
eutrophication, or introduction of nutrients into the desert
10
The Final EIS incorporated the earlier Draft EIS.
11
Other evidence in the record indicates that fencing of this type is eigh-
teen inches high; high enough to restrict tortoise movement but low
enough to present no obstacle to Bighorn sheep.
12
The Riverside County Specific Plan clarifies that the 644 acre area
will provide a buffer between sheep and the footprint of the landfill.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15127
environment. Unlike its discussion of Bighorn sheep, the EIS
contains no specific discussion of eutrophication. The BLM
argues that the relevant discussion is present in other, scat-
tered sections of the EIS. The EIS does, for example, discuss
“Biological Resources” and “Air Quality.” The “Biological
Resources” section discusses mitigation measures, such as
daily cover of the working face of the landfill, that will reduce
“increased food availability.” The same “Biological
Resources” section references a separate “Air Quality” sec-
tion, which calculates potential levels of nitrate production, to
support the conclusion that atmospheric nitrate deposition
resulting from landfill operations will be dwarfed by other
sources in the Los Angeles Basin. The EIS therefore con-
cludes that nitrate deposition from landfill sources will have
no effect on Joshua Tree’s ecosystem.
[22] In determining whether an EIS fosters informed
decision-making and public participation, we consider not
only its content, but also its form. Block, 690 F.2d at 761.
Here, the discussion of eutrophication is neither full nor fair
with respect to atmospheric eutrophication. A reader seeking
enlightenment on the issue would have to cull through
entirely unrelated sections of the EIS and then put the pieces
together. To find the brief discussion of atmospheric eutrophi-
cation, a reader must begin in the“Biological Resources” sec-
tion, which then refers to data from the “Air Quality” section,
and then with respect to effects only on Joshua Tree, not the
surrounding area. Rather than address eutrophication up front,
the BLM instead attempts to cobble together a “hard look”
from various other analyses as varied as air quality and dis-
ease vector control. This patchwork cannot serve as a “reason-
ably thorough” discussion of the eutrophication issue.13 We
13
The dissent’s contention that eutrophication is “not a serious issue” is
at odds with the analyis of both the National Park Service and the IBLA.
The National Park Service found the eutrophication issue sufficiently seri-
ous as to merit an official comment, as the dissent itself points out. Dissent
at 15161. The IBLA did not take the position that eutrophication is unim-
15128 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
therefore affirm the district court’s decision on this NEPA
claim.
VI. Cross-Appeal
[23] The Charpieds cross-appeal the district court’s deter-
mination that they lacked standing to pursue their claim
against the National Park Service (“Park Service”) under
NEPA, the National Park Service Organic Act, 16 U.S.C. § 1,
and the California Desert Protection Act, 16 U.S.C. § 410aaa,
et seq. The Charpieds also appeal the district court’s grant of
summary judgment to Kaiser and the BLM on NEPA claims
concerning the EIS’s sufficiency regarding desert tortoises,
visual, noise, and night lighting impacts, groundwater, and air
quality. We affirm the district court on all issues on cross-
appeal.
Although the BLM was required to solicit the Park Ser-
vice’s input on the EIS, 40 C.F.R. § 1503.1, the BLM did not
need the Park Service’s approval to complete the land
exchange. The Park Service was involved in the Kaiser pro-
posal only as a cooperating agency. NEPA regulations distin-
guish lead agencies from cooperating agencies. 40 C.F.R.
§ 1501.6. Cooperating agencies must, at the request of the
lead agency, help prepare environmental analyses, including
portions of the EIS. Id. In October 1996 the Park Service rec-
portant, but instead concluded that the EIS adequately took a “hard look”
at the issue.
The dissent contends that the EIS contains a “map” to the eutrophica-
tion issue that is sufficient to meet the “hard look” requirement.” Dissent
at 15161. Whether the dissent or a reviewing court, examining an EIS with
the benefit of law clerks and post-hoc rationalizations from counsel, is
able to follow a tortuous map to the buried treasure of a eutrophication
discussion is not the question. In examining an EIS, we must make a
“pragmatic judgment whether the EIS’s form, content and preparation fos-
ter both informed decision-making and informed public participation.”
Block, 690 F.2d at 761 (emphasis added).
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15129
ommended that the BLM reject the Kaiser proposal and stated
that the Draft EIS did not sufficiently address certain environ-
mental impacts. In December 1996 the Park Service changed
its position, and supported the EIS and Kaiser proposal.
Standing requires three elements: (1) actual or imminent
injury in fact; (2) a causal connection between the injury and
the conduct complained of; and (3) likelihood that a favorable
decision will redress the injury. Lujan v. Defenders of Wild-
life, 504 U.S. 555, 561-62 (1992). The Charpieds argue that
the Park Service’s reversal constituted a procedural violation
under NEPA, the California Desert Protection Act, and the
National Park Service Organic Act, and that relaxed standards
of redressability should apply. See Lujan, 504 U.S. at 572 n.
7. The Charpieds, however, have not identified any violation
of a procedural duty by the Park Service.14 The relaxed stan-
dard therefore does not apply. A favorable decision would not
redress the injury complained of because the Park Service is
not the lead agency responsible for approving the Kaiser proj-
ect. Even if the Park Service were to rescind its approval of
the landfill project, the BLM, as the lead agency, would be
free to move forward. Accordingly, we affirm the district
court’s holding that the Charpieds lack standing under NEPA,
the National Park Service Organic Act, and the California
Desert Protection Act.
Lastly, we briefly address the Charpieds’ impact-specific
NEPA claims. As discussed above, our review is limited to
whether the EIS took a “hard look” at the landfill’s potential
environmental impact. Block, 690 F.2d at 761. In challenging
the EIS’s discussion of desert tortoises, visual, noise, and
night lighting impacts, groundwater, and air quality, the Char-
pieds take issue with the EIS’s methodology and ultimate
conclusions. Without taking a position on those conclusions,
14
To the extent that the Park Service may have assumed a contractual
duty to assist the BLM, the Charpieds cannot demonstrate that they are
third party beneficiaries.
15130 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
we find that the EIS’s discussion of these issues is sufficient
to foster informed decision-making and public participation.
We therefore affirm the district court’s grant of summary
judgment on these NEPA claims, as well as its dismissal of
the Charpieds’ complaint against the Park Service.
VII. Conclusion
The judgment of the district court is AFFIRMED in part
and REVERSED in part. This case is REMANDED for fur-
ther proceedings consistent with this opinion. Each side shall
bear its own costs on appeal.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15131
Volume 2 of 2
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15135
TROTT, Senior Circuit Judge, dissenting:
What sane person would want to attempt to acquire prop-
erty for a landfill? Our well-meaning environmental laws
have unintentionally made such an endeavor a fool’s errand.
This case is yet another example of how daunting — if not
impossible — such an adventure can be. Ulysses thought he
encountered fearsome obstacles as he headed home to Ithaca
on the Argo, but nothing that compares to the “due process”
of unchecked environmental law. Not the Cyclops, not the
Sirens, and not even Scylla and Charybdis can measure up to
the obstacles Kaiser has faced in this endeavor. The record
here exceeds 50,000 pages. At the beginning, Kaiser had a
partner, Browning-Ferris Industries (“BFI”), but BFI — a
company experienced in the field of solid waste disposal —
dropped out after investing $45 million in the project with
nothing to show for it in return. I agree with my colleagues
insofar as they dispense with the cross-appeal and the public
interest and bighorn sheep issues, but I dissent with respect to
the rest. The final irony is that my colleagues send the case
back to the Bureau of Land Management (“BLM”) to do
something BLM has already adequately done: consider the
value of the land involved as a commercial landfill.
I
BACKGROUND
Kaiser’s proposed landfill formally began in 1989 — 20
years ago — when it filed an application with BLM for a land
15136 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
exchange to facilitate the construction of what it called the
Eagle Mountain Landfill. From 1948 to 1983, Kaiser had
operated an iron ore mine on 5,000 isolated acres of land it
owned or controlled in Riverside, California. In 1989, Kaiser
sought to acquire federal lands as part of an exchange that
would facilitate the Eagle Mountain project. The landfill
would have been the first to comply with new Environmental
Protection Agency guidelines. The federal land Kaiser sought
mostly encircled the spent mines. Sixty percent of the targeted
federal land is classified as mountainous. Kaiser in turn
offered 2,846 acres of mostly flat desert land to become part
of the California Desert Conservation Area located about 1.5
miles from the border of Joshua Tree Natural Park (“JTNP”),
and twenty miles from the park’s nearest visitor center. The
proposed landfill would accept municipal, non-hazardous,
solid waste from seven Southern California counties, to be
delivered mostly by train.
In 1994, the State Superior Court in San Diego County fur-
ther described this project as follows:
“[Kaiser’s] mining operation resulted in the excava-
tion of three large open pits; each[ ] one to two miles
long. The mining operation ceased in 1983, and Kai-
ser has leased the mine site to the prospective opera-
tor of the landfill.
“[Kaiser/Mine Reclamation Corp.] plans to utilize
the open pits left from the mining operation to create
what all parties have agreed is the largest landfill in
the country. The landfill footprint will encompass
approximately 2,262 acres within a larger project
area of 4,654 acres. The landfill will have the capac-
ity to accept up to 20,000 tons per day of wastes for
a minimum of 115 years.
“The landfill will receive most of the waste from
Los Angeles and other Southern California counties.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15137
Ninety percent of the garbage will be shipped by rail
and the balance by truck. All waste will be delivered
after processing at materials recovery facilities
(MRF’s) which accept delivery of trash from homes
and businesses and compact the waste into contain-
ers for transportation.
“The landfill accepts only nonhazardous solid
waste and inert wastes that have been processed
through MRFs. The Draft EIR states a typical MRF
would require about 10 to 30 acres and an enclosed
structure of about 100,000 square feet. [ ] The gar-
bage is delivered to the MRF by truck and dumped
on the floor of the structure. Workers sort through
the waste and remove unacceptable materials such as
hazardous waste, sewage sludge, radioactive, biolog-
ical or infectious waste, and other materials needing
special handling. Recyclable materials may be
recovered. The remaining wastes are compacted and
packaged into containers that hold up to 25 tons each
and then loaded onto rail cars, each of which holds
10 containers. The containers are then transported to
the landfill. [ ] Approximately 10 percent of the
wastes will be transported by truck rather than rail.”
Nat’l Parks & Conservation Ass’n v. County of Riverside, 50
Cal. Rptr. 2d 339, 342 (Cal. Ct. App. 1996).
I do an injustice to the record by attempting to summarize
the legal hurdles Kaiser has negotiated in its thus-far vain
attempt to accomplish its goals — at a cost now in excess of
$50,000,000 — but here goes.1
1
I apologize to the reader for including extensive parts of the record in
my opinion, but the record — overlooked in large measure in the majori-
ty’s opinion and the district court — is what this case is all about. Unfortu-
nately, the huge excerpt of record will not be routinely circulated to the
rest of the Ninth Circuit in connection with an en banc call, so it is here
that I must prove the validity of my conclusions.
15138 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
First, the permits. After a lengthy public hearing process,
Riverside County issued all local land use approvals, includ-
ing a zoning change. Then, California’s South Coast Air
Quality Management District approved permits for air emis-
sions from the project. Next the United States Fish and Wild-
life Service evaluated the potential impacts of the project on
threatened or endangered species and thrice issued a “no jeop-
ardy” opinion. The permits were approved only after search-
ing inquiries by the issuing agencies. All the environmental
laws were addressed.
Then, the matter turned into a lawsuit in state court. See
Nat’l Parks & Conservation Ass’n v. County of Riverside, 84
Cal. Rptr. 2d 563 (Cal. Ct. App. 1999). Two Superior Court
trials later, and after the Draft EIS/EIR had been redone, the
California Court of Appeal ruled that Riverside County and
BLM had adequately addressed all environmental concerns
under California law. This was the second state appeal in this
dispute. In many respects, California’s environmental laws
are more demanding than their federal counterparts.
Moreover, Kaiser had actively engaged the National Park
Service (“NPS”) in an ongoing process designed to protect
Joshua Tree National Park. As described by the Interior Board
of Land Appeals (“IBLA”), the agreement reached “gives
NPS precisely what they had requested as early as 1992 — a
comprehensive, long-term monitoring and mitigation pro-
gram, which runs for the life of the project and is specifically
tailored to detect and to address any unforeseen impacts on
JTNP.” This is how the IBLA described the National Park
Service’s involvement:
When the decision was made [in 1995] to prepare
the new EIS/EIR, BLM invited the NPS to partici-
pate as a “cooperating agency” in the preparation of
the new document — a role that would recognize
NPS’ special expertise in evaluating impacts on the
newly designated JTNP.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15139
At the scoping stage, the NPS submitted a 12-page
letter outlining issues that it wanted to see addressed
in the EIS/EIR. With the assistance of the consultant
preparing the EIS/EIR, BLM reviewed these issues
one by one, held a series of meetings with the NPS
staff, and incorporated many of the NPS’s recom-
mendations into the Draft EIS/EIR. Before the Draft
EIS/EIR was issued, BLM provided an “administra-
tive draft” of the document to NPS for review, and
the NPS provided more than 150 pages of com-
ments. Again, BLM responded point by point to
NPS’s comments in a 34-page response. BLM
accepted many of the NPS’s recommendations and
provided detailed explanations for those it declined
to accept. When the Draft EIS/EIR itself was issued,
the NPS submitted a third round of comments, even
more detailed than the last. Again, BLM painstak-
ingly reviewed the NPS’s comments and addressed
each of them.
As the new EIS/EIR was being prepared, the NPS
again raised the issue of the project’s potential
unknown and unpredictable impacts, as it had in
1992. To address this concern, [Kaiser] MRC
revived an idea that the NPS itself had proposed dur-
ing preparation of the first EIS/EIR — namely,
entering into an agreement that would establish a
long-term mitigation and monitoring program. Over
the next 18 months, MRC and the NPS engaged in
extensive discussions to develop a detailed, enforce-
able agreement. In the end, MRC and NPS entered
into a binding agreement that gives NPS precisely
what they had requested as early as 1992 — a com-
prehensive, long-term monitoring and mitigation
program, which runs for the life of the project and is
specifically tailored to detect and address any
unforeseen impacts on JTNP. While the NPS made
it clear that it would prefer to avoid any industrial-
15140 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
type activity at the mine site, the agency agreed that
if the landfill project were to go forward, the agree-
ment with MRC provided the appropriate safeguards
for addressing NPS’s concerns about any gradual,
long-term impacts (which cannot be accurately pre-
dicted).
(quotation omitted).
Furthermore, a Technical Advisory Panel composed of
eminent scientists and engineers from major California Uni-
versities was called in to look at the project and concluded:
“[T]he designers have done essentially all that is
humanly possible to make this a safe landfill that
will be protective of . . . the underlying and sur-
rounding environment. Given the favorable site con-
ditions, sophisticated waste containment systems,
and elaborate monitoring systems, the proposed
Eagle Mountain Landfill could well become one of
the world’s safest landfills and a model for others to
emulate.
(emphasis added).
County officials similarly noted that Kaiser had “overdone
its mitigation” and had “bent over backwards in addressing all
of the impacts which have been brought up by previous com-
missions, by the courts, by our staff, and by this particular
commission.”
The final Environmental Impact Statement prepared for this
project consists of (1) a 900-page Draft EIS (“DEIS”), which
details the potential environmental impacts of the project, the
range of alternatives that were considered, and proposed miti-
gation, and (2) a 1600-page Final EIS (“FEIS”), produced fol-
lowing extensive and exhaustive public comment on the
DEIS. The required National Environmental Policy Act
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15141
(“NEPA”) documents were issued jointly by the BLM and
Riverside County in 1996, 13 years ago. In 1999, the IBLA
issued a thirty-two page opinion affirming BLM’s decisions.
But, we are just getting started. The same plaintiff who lost
in state court filed this federal lawsuit, in 1999 — 10 years
ago. The case took over five years in district court simply to
get to summary judgment! It took the court three years to rule
on the completed motions, and, here we are at the end of
2009, another five years later, burdened by a seriously flawed
district court opinion, hitting the reset button, and unnecessar-
ily sending the parties back to a Sisyphean hill which cannot
be climbed in a lifetime — ten years after the IBLA’s opinion.
How many of the people who started this project are still
employed by Kaiser, are still in public service, or for that mat-
ter, are still alive? Yet, the process has developed an eternal
life of its own as full-employment for all swept along with or
by it.
Now, in an opinion that is not only not supported by the
record, but irreconcilable with it, the endless process contin-
ues. No doubt we will see this case back again, years from
now, unless the proponents of this project — including seven
California counties — weary of it and throw in the towel,
thwarted and defeated not by substance, but by interminable
process.
II
PURPOSE AND NEED / PUBLIC INTEREST /
CONSIDERATION OF ALTERNATIVES
A.
Purpose and Need
My colleagues’ opinion concluding that BLM’s Statement
of Purpose and Need for the project is defective completely
15142 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
misunderstands the purpose of this requirement in a setting
where a private entity approaches a government entity with a
joint proposal that will benefit both. Of course there is a pri-
vate purpose driving this project. But the project benefits both
parties, not just Kaiser. To isolate one without factoring in the
other is patently illogical. To illustrate the folly of this fallacy,
all one has to do is examine the IBLA’s opinion outlining the
habitat benefits of this exchange to fish and wildlife and
threatened and endangered species. Here, however, is how
BLM’s goal reads in the Introduction of the Draft EIS/EIR:
1.3.1 Project Purpose and Need
The primary purpose of the Project is to develop
a new Class III nonhazardous municipal solid waste
landfill to meet the projected long-term demand for
environmentally sound landfill capacity in Southern
California; provide a long-term income source from
the development of a nonhazardous municipal solid
waste landfill; find an economically viable use for
the existing mining by-products at the Kaiser Eagle
Mountain Mine site, including use of existing aggre-
gate and overburden; and provide long-term land use
and development goals and guidance for the Town-
site.
Several recent studies documenting the need for
additional landfill capacity in Southern California
indicate that additional capacity is needed to meet
the long-term demands (i.e., 1995 to 2050) and pos-
sible short-term needs (i.e. 1995 to 2000) of the
Southern California region (California Integrated
Waste Management Board [CIWMB],1992;
CIWMB, 1994, Draft Countywide Siting Elements
— for the seven counties viewed as potential sources
of waste for the proposed landfill — 1995 and 1996).
Additional capacity is also required for counties and
municipalities in Southern California to satisfy the
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15143
legal requirements of AB 939 to demonstrate ade-
quate waste disposal capacity. The solid waste
capacity in southern California changes often due to
a number of factors, including: (1) the closure of
small, ineffective landfills as new regulations take
effect; (2) the development of larger regional sites;
(3) the uncertainty of permitting efforts of new and
expanded landfills; (4) litigation over land use issues
of landfills and (5) the privatization of publicly
owned landfills. These factors necessitate that cities
and counties undertake long-term planning to ensure
that adequate capacity is available.
The discussion below of waste capacity in the
Southern California region is based on projected
short-, medium-, and long-term needs. Future needs
are based on several continuing and changing trends:
(1) increase in population (California’s population is
expected to more than double from its current 30
million to more than 60 million by the year 2040
[California Department of Finance, 1993]); (2)
expanded waste diversion and recycling, which is
reducing the amount of material being disposed of in
landfills; and (3) landfill closures and development
proposals that will affect future disposal capacity.
This section then takes 12 pages reviewing and analyzing
a “critical” landfill capacity shortfall in Southern California,
focusing on the counties of Los Angeles, San Bernardino,
Riverside, Orange, Santa Barbara, Ventura, and San Diego —
the seven counties within the proposed landfill’s service area.
The detailed discussion highlights a critical need for “addi-
tional disposal capacity” in the service area. During this par-
ticularized discussion, Kaiser’s obvious pecuniary goals are
nowhere in sight.
In the final EIS/EIR, we discover that the need for landfill
capacity had increased since the Draft.
15144 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
The result-oriented notion that BLM has “narrowly drawn”
this statement of purpose and need is utterly wrong. Of course
BLM acknowledged Kaiser’s purpose — the law requires
BLM to do so! For private, non-federal proposals, “[a]gencies
. . . are precluded from completely ignoring a private appli-
cant’s objectives.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d
1162, 1175 (10th Cir. 1999) (involving Vail Associates
expansion of its existing ski area into the White River
National Forest); see also Citizens Against Burlington, Inc. v.
Busey, 938 F.2d 190 (D.C. Cir. 1991). Read with an open
mind, this statement suffers from no defects whatsoever.
B.
Public Interest
Furthermore, my colleagues’ opinion inexplicably excludes
from the evidence it draws upon to support its errant conclu-
sion — that the Purpose and Need Statement is wanting — an
important requirement of BLM’s decision-making process:
the statutory requirement that it conclude “that the public
interest will be well served by making that exchange.” Federal
Land Policy and Management Act of 1976 (“FLMPA”), Pub.
L. No. 94-579, § 206(a), 90 Stat. 2743, codified at 43 U.S.C.
§ 1716(a) (1994). The Code of Federal Regulations is quite
specific about what must go into a “public interest” determi-
nation.
BLM must consider
the opportunity to achieve better management of
Federal lands, to meet the needs of State and local
residents and their economies, and to secure impor-
tant objectives, including but not limited to: Protec-
tion of fish and wildlife habitats, cultural resources,
watersheds, wilderness and aesthetic values;
enhancement of recreation opportunities and public
access; consolidation of lands and/or interests in
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15145
lands, such as mineral and timber interests, for more
logical and efficient management and development;
consolidation of split estates; expansion of commu-
nities; accommodation of land use authorizations;
promotion of multiple-use values; and fulfillment of
public needs. In making this determination, the
authorized officer must find that . . . [t]he intended
use of the conveyed Federal lands will not, in the
determination of the authorized officer, significantly
conflict with established management objectives on
adjacent Federal lands and Indian trust lands. Such
finding and the supporting rationale shall be made
part of the administrative record.
43 C.F.R. § 2200.0-6(b) (1988).
The record shows that BLM made such a careful determi-
nation, as reflected in the IBLA’s opinion rejecting the
NPCA’s and the Charpieds’ allegations to the contrary:
As noted above, contrary to NPCA’s assertions
(Reply Brief at 3), BLM’s decision documents and
supporting Draft and Final EIS/EIR contain exten-
sive discussions of the [public interest] factors set
out in 43 C.F.R. § 2200.0-6(b). That record shows
that the acquired private lands have substantial
value as habitat for threatened and endangered spe-
cies, so that acquiring them serves the purpose of
protection of fish and wildlife habitats. The position
of those lands relative to current Federally-owned
habitat means that their acquisition will allow for
more logical and efficient management and develop-
ment. We also recognize that, apart from the direct
benefits of acquiring the parcels of offered private
lands, approval of the exchange promotes the Proj-
ect, which undeniably meets the “needs of State and
local residents and their economies” by allowing
both a 100-year waste disposal facility for a major
15146 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
metropolitan area, as well as economic development
of the Project area. BLM may properly consider
these factors as part of its obligation to promote
multiple-use values, to fulfill public needs, and to
expand communities.
Under section 206(a) of FLPMA, the Department
must also find “that the values and the objectives
which Federal lands or interests to be conveyed may
serve if retained in Federal ownership are not more
than the values of the non-Federal lands or interests
and the public objectives they could serve if
acquired.” There is no doubt that the Federal lands
and interests to be conveyed here (the selected public
lands) have been greatly reduced in value due to
their proximity to Kaiser’s mine and its spoil piles,
tailing ponds, etc. (Appraisal Report Vol. I at 9-13.)
Further, these lands are encumbered by mining
claims held by KEM, such that they may be mined
or even patented. Id. at 15. Against this background,
it is evident that disposal of these lands in exchange
for wildlife habitat plainly entails a net gain for the
public.
(emphasis added).
My colleagues’ opinion also ignores another section of the
DEIS’s articulation of the Project’s purpose and need involv-
ing the benefits to Riverside County, where it will be located:
1.3.2.1 County of Riverside
The proposed County action is based on the Coun-
ty’s authority for reviewing land use applications
(i.e., Specific Plans for the proposed landfill and the
Townsite) for the proposed landfill and the Town-
site. In making a decision on the pending land use
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15147
applications, the County will consider the following
County objectives.
• Provide the County and jurisdictions within the
County with environmentally sound, long-term
disposal capacity for waste generated within the
County.
• Provide the County with income from the dis-
posal fees for out-of-county waste disposed of at
the site. Provide for the acquisition and preserva-
tion of valuable open space lands in environmen-
tally sensitive areas, for the preservation and
enhancement of biological, scenic, and cultural
resources in the County, and research and educa-
tion concerning conservation of natural
resources. This activity will be funded through
the contribution of one dollar per ton of waste
deposited at the landfill into a mitigation moni-
toring trust fund administered by the County.
• Reclaim lands disturbed by previous mining
activities.
• Assist jurisdictions within the County that use the
site for solid waste disposal to meet the long-term
landfill capacity as set forth by state law (AB
939).
• Provide a remote, regional municipal solid waste
landfill that allows transportation of waste pri-
marily by rail and uses existing transportation
infrastructure.
• Provide long-term disposal capacity to allow the
County to continue closing existing unlined land-
fills within the County.
15148 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
In evaluating this project in terms of the its purpose and the
public interest, BLM added this worthy consideration:
Based on economic reports prepared by experts, the
Project is projected to generate $210 to $280 million
in revenue to the county in the first twenty years of
operation. That additional revenue can be used to
provide needed federal services to the residents of
Riverside County. The Project will also support or
save, on an annual basis, an average of 1,354 jobs in
the county during the first 20 years. The overall eco-
nomic impact during the next twenty years to the
county is projected to be in excess of $3 billion.
Also,
The Project will be the only landfill in Riverside
County which meets current groundwater protection
and other current state and federal environmental
protection requirements, thus providing sufficient
waste disposal capacity to enable the county to close
existing landfills that do not meet current state and
federal regulations.
(emphasis added).
This is what BLM’s district manager had to say about the
value of this project to the United States in his feasibility
report dated February 8, 1993:
Public Benefits and Relationship to Land Use
Planning
The public lands are identified for disposal and the
private lands are recommended for acquisition under
the California Desert Conservation Area (CDCA)
Plan, as amended. The offered private lands are
within and adjacent to the Chuckwalla Bench and
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15149
Dos Palmas/Salt Creek Areas of Critical Environ-
mental Concern and Orocopia Mountains Wilderness
Study Area designated in the CDCA Plan. Respec-
tively, these areas contain important habitat for the
desert tortoise, a Federally listed threatened species,
and riparian habitat supporting[ ] the desert pupfish,
a Federally listed endangered species. The land
exchange would secure important habitat for these
species.
He augmented his favorable opinion in 1997 in his Notice
of Decision asking for public comment:
The non-Federal lands to be acquired by the
United States are located within and adjacent to the
Chuckwalla Bench and Dos Palmas/Salt Creek Areas
of Critical Environmental concern. Respectively,
these areas contain important habitat for the Desert
Tortoise, a federally listed threatened species, and
habitat supporting two federally listed endangered
species, the Yuma Clapper Rail and Desert Pupfish.
The Federal lands being conveyed consist of
highly disturbed lands in and around the Eagle
Mountain Iron Ore Mine located north of Desert
Center, California. The Federal lands will be used to
facilitate the proposed development of the Eagle
Mountain Landfill and Recycling Center Project, a
Class III non-hazardous municipal solid waste land-
fill in Riverside County. Disposal of the Federal
lands is consistent with the California Desert Con-
servation Area Plan of 1980, as amended. The public
interest will be well served by making the exchange.
In summary, my colleagues’ opinion suffers from a funda-
mental flaw in its quarantined analysis of two interrelated
issues, the purpose and need for the project, on one hand, and
whether the exchange of federal land serves the public interest
15150 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
on the other. They grudgingly conclude that the BLM ade-
quately determined that the public interest is served by the
landfill, but, in the same breath, they claim to have found a
defect in BLM’s articulation of the project’s purpose and
need. How can a project that satisfies the rigorous public
interest demands of the exchange law fail because its purpose
and need over represents primarily private goals and objec-
tives? It is a mistake to approach these two statutory require-
ments as separate and independent from each other, especially
in a case such as this where the exchange is between a private
entity and a public interest. Of course Kaiser has its own goals
it hopes to accomplish from this project, and of course it
hopes to make a profit, but it seems blindingly apparent that
its goals dovetail with the public’s need for a landfill, and
especially a landfill such as this that not only meets and far
exceeds our laudable environmental expectations, but greatly
enhances, by the acquisition of 2,846 acres, contiguous fed-
eral land that protects endangered species living on it.
The Record of Decision says this about value to BLM:
4.2 Acquisition of Important Wildlife Habi-
tat: The proposed land exchange presents an oppor-
tunity for BLM to achieve better management of
Federal lands by allowing BLM to consolidate Fed-
eral ownership of land that contains habitat for listed
species. In the land exchange, BLM would acquire
approximately 2,846 acres of Kaiser lands, which
contain important habitat for the desert tortoise, a
Federally listed threatened species, and for the desert
pupfish, a Federally listed endangered species, and
for other environmentally sensitive species. In addi-
tion to the lands acquired as part of the land
exchange, BLM also would acquire approximately
400 acres of desert tortoise habitat for mitigation of
impacts caused by the Project. This land would be
purchased by the applicant, and then would be con-
veyed in fee to BLM as mitigation for the loss of 160
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15151
acres of tortoise habitat, which would be used for
widening and extending the Eagle Mountain Road as
part of the Proposed Action. Given the lands to be
acquired, including the mitigation land, the land
exchange would further BLM’s objective of securing
additional protection of important habitat for sensi-
tive species.
The Kaiser lands to be acquired by BLM in the
land exchange are located in four geographic areas
(see Exhibit “B”). The location of these lands, and
the environmental benefits associated with their
acquisition, are summarized a follows:
Group A: Salt Creek (Dos Palmas) ACEC
T. 8 S., R. 11 E.
Section 13: NE1/4
Section 21: E1/2E1/2SE1/4
Section 23: Described in metes and
bounds.
These three parcels are located in the vicinity of
the Salt Creek (Dos Palmas) Area of Critical Envi-
ronmental Concern (ACEC). The entire ACEC area
of about 14,000 acres includes both Federal and pri-
vate lands and is popularly referred to as Salt Creek
(Dos Palmas) ACEC, even though the ACEC only
includes the Federal lands. One of the management
objectives in the Salt Creek (Dos Palmas) area is to
acquire private lands for the management of various
palm oases and seeps that provide habitat for the
desert pupfish and Yuma clapper rail, both Federally
listed endangered species. Over 3,200 acres have
been acquired or are in the process of being acquired
15152 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
by BLM. All three of Kaiser’s parcels will contribute
to consolidating Federal lands, thus enhancing man-
agement of the area. The parcel in Section 23 con-
tains desert pupfish habitat along a tributary to Salt
Creek.
Group B: Orocopia Mountains Wilderness
T. 7 S., R. 12 E.
Section 35: Described by metes and
bounds
Section 36: N1/2SW1/4, SE1/
4NW1/4, S1/2NE1/4
T. 7 S., R. 13 E.
Section 31: Described by metes and
bounds
These three parcels are located on the southern
boundary of the Orocopia Mountains Wilderness
Area. They are not contiguous to the Wilderness
Area. However, consolidation of Federal lands in
this area would simplify land management and
enhance recreational opportunities. These parcels are
in an area designated by the USFWS as critical habi-
tat for the desert tortoise under the Endangered Spe-
cies Act. A population of approximately 50 Nelson’s
bighorn sheep occurs in this area and another popu-
lation of approximately 100-200 sheep occurs in the
Chocolate Mountains to the south. These populations
migrate between the mountain ranges in the vicinity
of the parcels. Nelson’s bighorn sheep is a State of
California fully protected species and a BLM sensi-
tive species. Populations of Orocopia Sage, a Federal
species of concern, occur on all three parcels. Acqui-
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15153
sition of Kaiser’s parcels would block up a large area
of BLM managed lands and enhance management of
lands used by migrating bighorn sheep.
In summary, my colleagues’ opinion’s claim that BLM
“foreordained” the approval of this exchange is indefensible
in terms of the record.
C.
Consideration of Alternatives
These egregious errors are then improperly used to force
the declamatory conclusion that BLM’s consideration of a
“range of alternatives” was “similarly unreasonable” and
defective. This is easily demonstrated to be wrong simply by
reading the record, which contains a pithy section discussing
a range of alternatives. Identified and discussed at length are
the following:
Alternatives Considered in Detail
1. No action
-Status quo
2. Reduced volume of onsite disposal
3. Alternate road access
-No new road construction
4. Rail access only
-Elimination of hauling trucks
5. Landfill on Kaiser land only
-No land exchange / small landfill footprint
6. Landfill development / no Townsite develop-
ment
-No resuscitation of the existing Townsite
15154 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Alternatives Considered But Eliminated
1. Landfill on other Kaiser property
2. Waste Diversion
3. Proposed offsite / and fill diversions
4. Landfill mining
5. Alternative Townsite locations
6. Alternative Townsite land use and density
Accordingly, BLM determined that the preferred alterna-
tive is the Proposed Landfill Action. Riverside County,
required to conduct a different analysis, agreed with this
assessment:
Pursuant to CEQA, the County has determined that
the environmentally superior alternative is the No
Action Alternative. The No Action Alternative
would leave the Project site in its present condition
and avoid the potential impacts of the proposed land-
fill. The No Action Alternative could, however, lead
to its own adverse impacts, such as the adverse
visual impact of the disturbed mining site and the
remaining tailing piles. Also, the potential impacts
associated with continued reliance on new or exist-
ing landfills in Southern California could be substan-
tial, such as air quality impacts or groundwater
impacts at existing unlined landfills. In addition, the
other objectives of the Project as listed in Sections
1.3.2.1 and 1.3.2.2 would not be realized if the No
Action Alternative were chosen. However, with
respect to impacts in the vicinity of the Project site,
the No Action Alternative is, on balance, the envi-
ronmentally superior alternative.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15155
Where the No Project Alternative is determined to
be the environmentally superior alternative, CEQA
requires that an environmentally superior alternative
be selected from the remaining alternatives. There
are no clearly environmentally superior alternatives
compared to the No Action Alternative. However, as
required by Section 15126(d)(4) of the CEQA
Guidelines, the County has determined that, on bal-
ance the Proposed Action Alternative is the environ-
mentally superior alternative among the remaining
alternatives. Many of the potential impacts of the
proposed Project are the same or similar to the
potential impacts of the remaining alternatives.
Some alternatives would, however, have a greater
level of impacts than the proposed Project. For
example, the Landfill on Kaiser Land Only Alterna-
tive without the land exchange would diminish the
protection of habitat and wildlife because there
would be no consolidation of sensitive habitat lands
resulting from the land exchange.
That alternative and the Reduced Volume Alterna-
tive would also decrease the level of contribution to
the Environmental Mitigation Trust Fund, thus
diminishing the funding available for acquisition of
habitat lands. The Reduced Volume Alternative and
the Rail Access Only Alternative could also extend
the duration of certain impacts by extending the life
of the landfill. These other alternatives, however,
could reduce the level of a few impacts in compari-
son to the proposed Project. Only the No Action
Alternative would result in impacts considered not to
be significant.
In summary, BLM approved this exchange because the
project not only provides a benefit to Southern California and
to Riverside County, but also because it serves important fed-
eral law management objectives.
15156 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
III
EUTROPHICATION
What is it? Essentially, eutrophication is a term that refers
to an increase in chemical nutrients in an ecosystem, either on
land or in water. The word itself is derived from Greek, “eu,”
meaning “good,” and “trophic,” meaning “food” or nutrients.
Nitrogen, which is at the root of the controversy in this case,
is an essential element in the lives of both animals and plants
and, in fact, occurs naturally in great quantity in the atmo-
sphere. Nitrogen is also a key element of the fertilizer used
positively to increase the food productivity of land throughout
the world.
The environmental “problem,” of course, occurs with
anthropogenic eutrophication which causes alterations in plant
or animal life — or both — in a manner regarded as not posi-
tive. I note that most of our national eutrophication concerns
involve negative changes in bodies of water caused by the
anthropogenic introduction of excessive amounts of phospho-
rus. I have yet to find a situation where the introduction of
nitrates into a desert ecosystem has caused material environ-
mental harm. The Charpieds fear that this is such a case, a
concern refuted by the facts.
The parties cannot agree on the scope of alleged eutrophi-
cation concerns in this case as it relates to the consequences
of nitrate deposition. As summarized by the district court,
Plaintiffs contend that BLM neglected to address
significant impacts on the environment due to
eutrophication including an increased presence of
scavenger raven and coyote populations, impacts on
bird, mice, and other small animal feeding habits due
to the nutrients from the landfill and windblown
trash, and irreparable impacts on the desert food
chain.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15157
Relying on the closed and covered nature of the landfill, Kai-
ser asserts that the only source of nitrates related to the land-
fill are an insignificant consequence of “atmospheric nitrate
deposition from the emission and transport of anthropogeni-
cally generated nitrogen compounds.”
In the main, the plaintiffs complain that the defendants did
not take a “hard look” at this problem, as they were required
to do by NEPA. I disagree.
In their Statement of Reasons supporting their appeal to the
IBLA, the Charpieds describe their eutrophication problems
as follows:
A major concern to commenters, particularly NPS,
was the impact of the dump adding a large volume
of nutrients into an environment which has been
nutrient scarce for millions of years (see FEIS/R
under Agencies page 69). Despite repeated request
[sic] from NPS to address the eutrophication process,
BLM and Kaiser/MRC refused to conduct such an
analysis.
The EIS/R admitted “an increase in road kills of
local wildlife species would likely result from the
project’s 12 to 16 hour per day truck traffic along
access roads” (see DEIS/R 4.7-6)[.] It is also
acknowledged that common raven and other scaven-
ger populations “could increase in response to
increased food in the form of road-killed animals[.]”
Id. Yet, the EIS/R never grappled with the important
concept of eutrophication from this increase, or other
possible causes of eutrophication, such as adding
20,000 tons of food (garbage) to a nutrient scarce
area. The EIS/R noted the Council on Environmental
Quality’s (“CEQ”) description of biodiversity: “the
concept that all components of ecological systems,
both living and nonliving, are interconnected in a
15158 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
hierarchical continuum, and that changes in the
diversity at any level in that hierarchy can have
effects at other levels. . .” (see DEIS/R 3[.]7-28).
The EIS/R also acknowledged that growing scien-
tific evidence supported a deep concern for biodiver-
sity caused by human activity that adversely affects
the components of ecosystems and their interconnec-
tions; this results not only in species extinction, but
in disruptions of the functions of ecosystems on
which all life depends; and the introduction of exotic
species can eliminate native species through preda-
tion, competition, or disease transmission, and alter
interconnections between species, changing
ecosystem functions (see DEIS/R 3.7-30). Further
the EIS/R recognized that “because water and pri-
mary productivity are limited, desert ecosystems
recover very slowly from disturbances that disrupt
the interconnections between living and nonliving
components of the system” (see DEIS/R 3.7-31).
Despite these important factors, the EIS/R failed to
analyze eutrophication and its impact to JTNP’s
ecosystem[.]
The Agreement between NPS and Kaiser/MRC
does not remedy the inadequacy of the EIS/R’s
assessments of impacts and mitigation measures.
(See FEIS/R Appendix T for Agreement[.]) BLM
mischaracterizes a side agreement (“Agreement”)
entered into between the polluters and NPS, and then
cite [sic] said Agreement 30 times in response to
NPS’ concerns in defense of the adequacy of the
EIS/R’s analysis[.]
This concern about an increase in raven and “other scaven-
ger populations” (unnamed) due to “roadkill” strikes me from
the record as greatly exaggerated, and it suggests simply
going down the list of usual environmental concerns and then
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15159
manufacturing a groundless make-weight argument to try to
inject eutrophication into this case.
Contrary to (1) the Charpieds’ overblown concerns and
claims, (2) the district court’s mistaken view of this record,
and (3) my colleagues’ opinion, the BLM did examine
eutrophication and determined — correctly so from the record
— that it was not a serious issue. Here is what the IBLA had
to say about the issue as raised by the Charpieds:
“Eutrophication” is a process, associated with
aging aquatic ecosystems such as lakes, whereby
concentrations of phosphorus, nitrogen, and other
plant nutrients increase, altering the ecosystem by
algae blooms or microscopic organisms. “Cultural
eutrophication” occurs when the aging process is
sped up by the activities of humankind by allowing
excess nutrients in such forms as sewage, detergents,
and fertilizers to enter the ecosystem. Encyclopedia
Brittanica, Micropaedia Vol. III at 1007 (1979).
In the present context, NPS used the term “eu-
trophication” to refer to the addition of nutrients (in
garbage and trash) to the desert ecosystem, raising
the possibility that the ecosystem would be upset by
the proliferation of animal life such as insects and
rats. NPS requested that this possibility be examined
in the EIS/EIR process. NPCA II at 29-30.
The Charpieds assert that BLM failed to ade-
quately assess “impact of the dump adding a large
volume of nutrients into an environment which has
been nutrient scare for thousands of years.” (Char-
pieds’ SOR at 39-30.)
n.16
We must . . . review each issue [including eutrophi-
cation] to determine whether the effects cited by the
15160 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Charpieds are “relevant matters of environmental
concern” or constitute “probable environmental con-
sequences,” such that BLM was required to present
a “reasonably thorough discussion” of them as part
of its requisite “hard look.” The record shows that
the EIS/EIR satisfies BLM’s obligation to take a
“hard look” at such impacts.
....
The EIS/EIR addressed “eutrophication” and
roadkill. (Draft EIS/EIR at Sec. 4.7.4, ROD at 15;
Final EIS/EIR at 7-22 to 7-24; Response to Com-
ments 1-123 and 1-153.) The Charpieds fail to spec-
ify how this assessment is deficient and thus fail to
meet their burden of showing error in BLM’s
review. Effects of night lighting were addressed.
(Final EIS/EIR Sec. 6.6.)
To the extent that appellants fault BLM for not
considering the possibility that mining of the site
will resume at some point in the future, compound-
ing environmental questions, this issue goes beyond
presently foreseeable effects. BLM’s approval of the
Project is subject to ongoing monitoring to deter-
mine whether additional adverse impacts to the
ecosystem eventuate.
NEPA is primarily a procedural statute designed
“to insure a fully informed and well-considered deci-
sion.” Vermont Yankee Nuclear Power Corp. v. Nat-
ural Resources Defense Council, Inc., 435 U.S. 519,
558 (1978). That is, although NEPA requires an
agency to prepare an EIS where significant impacts
are identified (as BLM did here), nothing in NEPA
restrains an agency from proceeding with an action
that will have significant impacts where it decides
that other values outweigh the environmental costs.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15161
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350-51 (1989); Paul Herman, 146 IBLA
80, 102 (1998). The purpose of preparing the EIS is
to inform the agency of possible adverse environ-
mental effects in hopes that the agency can mitigate
them. This expectation was well rewarded in this
case. As discussed herein, BLM did not disregard the
adverse effects identified in its EIS/EIR, but pro-
ceeded to carefully consider them (as well as six
other alternatives (ROD at 3)) and develop mitigat-
ing measures to reduce or eliminate them, in consul-
tation with Departmental agencies responsible for
the subjects presented. We find no basis to disturb its
decision.
My colleagues register concern that eutrophication discus-
sions are found only in scattered sections of the EIS and that
one has to “cull through entirely unrelated sections of the EIS
and then put the pieces together” to find them. They call this
a “patchwork,” and they find such to be a fatal flaw. All I can
say is that (1) it was the Charpieds’ burden to identify the fail-
ures they alleged, (2) the California Court of Appeal thor-
oughly examined and analyzed the eutrophication allegations
in 1999 and had no trouble finding its way through the record,
(3) I had no trouble finding eutrophication in this voluminous
record, and (4) neither did the IBLA.
I note here that the DEIS contains an enormous, detailed,
and well-organized Table of Contents (with appendices) span-
ning 17 pages. Only someone intent on not finding what they
hoped was not there could fail to locate matters of their con-
cern in this admittedly gigantic document. But, the clear road
map is there.
To save space, let’s go to the Response to Comments sec-
tion of the EIS:
A commenter has stated that ecosystem impacts,
such as eutrophication, are defined in the “broad
15162 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
sense, referring to the large-scale addition of nutri-
ents (i.e., landfill trash) to the desert ecosystem”
(Appendix 2 of Comment 1) and has requested that
the EIS/EIR explain the impact of the proposed Proj-
ect on the regional ecosystem, including impacts on
“subtle and interconnected plants, animals, and pro-
cesses, most of which presently are unknown.”
(NPS, Joshua Tree National Park Issues Identifica-
tion for the Eagle Mountain Landfill Environmental
Impact Statement/Environmental Impact Report,
1995). The JTNP Issues Identification paper also
identified possible ecosystem impacts attributable to
the Project (i.e., wet dry deposition of nitrate, global
warming, and invasion of exotic species) and
requested additional studies and experiments to
assess ecosystem impacts. Upon review of the
requested studies and experiments suggested by the
NPS, the lead agencies determined that existing data
were available and sufficient for assessing impacts to
biodiversity and ecosystem function. The Draft EIS/
EIR addresses all these possible impacts associated
with the Project, including habitat loss, additional
nutrients originating directly or indirectly from land-
fill material (defined as “eutrophication” by NPS),
the introduction of exotic species, nitrate deposition,
and global warming.
For example, the Draft EIS/EIR (Section 4.7.4)
states that the proposed Project could affect bio-
diversity “primarily as a result of loss of habitat,
habitat fragmentation, and changes in the relation-
ship between species in the form of increases in
predator/scavenger populations in response to
increased food availability at the landfill site, and
from increased roadkills.” The EIS/EIR presents a
full analysis and discussion of these impacts and
appropriate mitigation, where applicable.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15163
Control measures proposed to be implemented are
described above in General Response 3, and include
continuous covering of waste, limiting the work face
to 2 acres or less, litter fencing, litter patrols, and
providing additional cover for any area that has not
been active for 180 days.
To control conditions at the Townsite that could
also lead to an increase in predators, measures iden-
tified for predator control will also be employed at
the Townsite. These measures will include educating
Townsite residents of the factors that increase raven
and other predator populations, and restrictions
requiring disposal of trash and garbage only in
tightly closing trash receptacles. Areas around busi-
nesses will be patrolled regularly to collect trash.
Feeding domestic animals outside in areas accessible
to ravens will be prohibited. Buildings and other
structures that could provide nest sites for ravens
will be monitored regularly. Other restrictions on
Townsite activities are described in Section 4.7 of
the Draft EIS/EIR.
The mitigation measures proposed for the Project
address potential impacts to a broad range of plants
and animals that occur in the Project area. Mitigation
measures have been identified, in consultation with
the appropriate regulatory agencies, for potential
impacts to all special status species, and will be
implemented as a condition of Project approval. At
the request of the [California Department of Fish and
Game] and other resource agencies, additional miti-
gation measures will be implemented for species that
have no protected status and/or are not anticipated to
experience significant impacts. For example, the
California Barrel Cactus is not a protected species,
but is considered an important food and water source
for Nelson’s Bighorn Sheep, especially in time of
15164 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
drought. Mitigation for this species includes trans-
planting and monitoring to ensure the success of
transplanting. Similarly, mitigation measures will be
implemented for the Common chuckwalla, which
has no formal protected status. These will include
surveying and removing individual animals from
Project areas. The aggregate of the mitigation mea-
sures proposed for protected and other species will
help assure that the biodiversity of the Eagle Moun-
tain Project area is protected and maintained. The
availability of the Environmental Mitigation Fund as
a tool to acquire and protect prime habitats in the
Southeastern California desert will further contribute
to the protection of biodiversity and ecosystem func-
tion.
Environmental Mitigation Trust
A number of commenters requested additional
detail about how the Draft Environmental Mitigation
Trust (Appendix U of the Final EIS/EIR) would
function and how it would contribute to the mitiga-
tion of Project impacts. The overall goals and func-
tions of the Environmental Mitigation Trust, as
currently proposed, are described on pages 4.7-14 of
the Draft EIS/EIR. The Draft Trust includes ele-
ments of the negotiated Agreement with Kaiser/
MRC and NPS and certain discussions with CDFG.
Specifically, the Draft Trust specifies that 72 percent
of the fees would be used to acquire lands that pro-
vide high-quality habitat for special status species in
the region. In addition, 18 percent of the funds
would be used for long-term monitoring, research,
and mitigation. The remaining 10 percent of the
funds would be used to acquire private parcels in
JTNP and for long-term research and mitigation
associated with potential Project impacts to JTNP.
Lands to be acquired would be identified by an advi-
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15165
sory committee appointed by the Trustees of the
Trust (the County of Riverside Board of Supervi-
sors).
The Draft Trust agreement specifies that the nine
members of the advisory committee shall all be resi-
dents of Riverside County and comprise two mem-
bers of the Board of Supervisors of the County of
Riverside; two citizens appointed by the Board of
Supervisors, one of whom must be a Native Ameri-
can; two citizens nominated by the Coachella Valley
Mountains Conservancy; one citizen nominated by
The Nature Conservancy; and one citizen nominated
by The Desert Protective Council. Because land
acquisition expenditures would be recommended by
this advisory committee, specific acquisition loca-
tions cannot be identified at this time. The Draft
Trust Agreement, however, specifies that lands
acquisition expenditures would be restricted to or for
the benefit of lands within 15 areas in desert envi-
ronments of Southern California identified in the
Trust Agreement (with provisions for expenditures
in other project areas if acquisition in the 15 identi-
fied areas have been reasonably met and with the
consent of 4 of the 5 trustees). The 15 areas listed as
priority areas for acquisition were identified in a Jan-
uary 1994 California Endangered Species Act Mem-
orandum of Understanding between MRC and the
CDFG.
Section 4.7.4 of the Draft EIS, “Biodiversity and
Ecosystem Function,” says:
The NPS has expressed concern that operation of
the landfill will result in eutrophication (increased
primary productivity) at JTNP as a consequence of
atmospheric nitrate deposition. Atmospheric nitrate
deposition results from the emission and transport of
15166 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
anthropogenically generated nitrogen compounds.
Sources include agricultural emission of ammonia/
ammonium and organic nitrogen from animal wastes
and fertilizer applications, and oxides of nitrogen
emitted from fossil fuel combustions (automobiles,
power plants, industry) (Paerl, 1993). Recent studies
indicate up to 30 kg/ha/yr of dry nitrate are deposited
primarily from automobiles in the San Dimas Exper-
imental Forest, just east of Los Angeles (Personal
Communication, Kathy Freas/CH2M Hill with E.
Allen. August 17, 1995).
Increasing nitrate deposition is of concern in
desert ecosystems because desert soils typically are
nutrient poor and primary production can be limited
by nitrogen availability. Increased nitrogen could
potentially allow the establishment and spread of
plant species that otherwise would not occur in the
desert because of nitrogen limitations. Sources of
nitrate associated with the proposed Project are lim-
ited to fossil fuels used by trucks and trains deliver-
ing waste to the landfill and to the use of personal
vehicles and home heating for occupants of the
Townsite. Landfill gases include only methane and
carbon dioxide and are not a source for oxides of
nitrogen. The small amounts of nitrate produced as
a result of fossil fuel use associated with landfill
operation would be eclipsed by the amount of nitrate
produced in the Los Angeles Basin and in urban
desert communities closer to the landfill. Addition-
ally, nitrate is transported by prevailing winds,
which are westerly in the vicinity of the proposed
Project. Because the landfill is southeast of JTNP,
nitrates generated from landfill operations would be
transported away from JTNP rather than toward it.
JTNP expects to see an increase in visitorship to the
park to 4 million persons per year by the year 2010
(NPS, 1995). Many, if not most, of these visitors will
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15167
arrive by automobile and will drive through the park.
This source of nitrates from fossil fuel combustion is
expected to be greater than that produced by landfill
operations. Nitrate deposition associated with land-
fill operations, therefore, is expected to have no
effect on ecosystem function [in] JTNP (see Section
4.4 Air Quality).
Then, there is the Agreement with the NPS covering ravens
and other predators, which addresses any unanticipated preda-
tor and raven problems about which the Charpieds worry:
3.6 DESERT TORTOISE - Kaiser/MRC shall under-
take the following obligations in connection with the
Desert Tortoise:
3.6.1. Conduct and continue the existing raven
monitoring program from at least twelve (12)
months prior to commencement of operation for a
period of at least 10 years.
3.6.2. Conduct, beginning at least twelve (12)
months prior to commencement of operation of the
Project and continuing for a period of at least 10
years, a predator monitoring program at the Project.
3.6.3. Mitigate potential increases in raven, coy-
ote, kit fox, and other predator populations caused by
the presence of trash at the Project. If the Common
Raven population in the region of the Project
increases as a result of landfill activities, then an
active control program will be instituted. Kaiser/
MRC will present its control plan and depredation
permits to NPS prior to start up of the landfill. If
control measures are instituted, but found to be inef-
fective, Kaiser/MRC will revise its control plan and
implement a new plan.
15168 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
3.6.4. Fence the perimeters of all active landfilling
and waste handling areas with fencing designed to
exclude large scavengers and place a minimum of 6
inches of appropriate cover material over deposited
and compacted refuse on a daily basis to minimize
raven, rodent, and other opportunistic scavenging.
3.6.5. Conduct, upon commencement of landfill
operations, a non-lethal predator control program,
that will, as a minimum include hazing at the landfill
site, coyote and kit fox aversion (aversive condition-
ing) techniques, prompt removal of road-killed wild-
life along access roads, and the possible use of bird
repellent methyl anthranilate.
The California Court of Appeal had this to say in 1999
about eutrophication:
Eutrophication (Nutrient Addition)
In its ruling, the [Superior] court found insuffi-
cient evidence to support the EIR’s conclusion that
impacts to the Park will be less than significant
regarding “the impact of the landfill on the biologi-
cal resources of the [P]ark as a complex and interre-
lated system, which the [NPS] describes as
eutrophication.” In 1995, the Park staff requested
that as part of the EIR process, the involved agencies
study the phenomenon of adding nutrients (trash) to
the dry, harsh desert landscape, possibly causing
insects and rats to proliferate, then starting the food
chain going full tilt and upsetting the Park
ecosystem. (This phenomenon is termed eutrophica-
tion after the similar effects of adding nutrients to
lakes and upsetting their ecosystems.) The Park rec-
ommended such studies as computer modeling and
animal tracking (trapping rats and insects at existing
landfills, and inventorying animal feces to analyze
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15169
whether human-generated trash was being trans-
ported) for several years to project the impact of the
landfill, if it were to be built.
The EIR approached this problem in several ways,
directed toward containment of the refuse: (1) The
EIR proposed such measures as keeping incoming
refuse in sealed containers until transported to a lim-
ited working area, creating litter fences, conducting
a storm watch to avoid the scattering of materials by
windstorms, and covering the waste with dirt and
mining debris to avoid access by ravens. Similar
measures have proved effective at other landfills. (2)
The landfill will have a state-of-the-art liner and
operations design as part of the system for confining
the waste. (3) Studies were made of the Los Angeles
experience with landfills, in which rats were fitted
with radio transmitters and researchers found that
daily landfill operations (bulldozing and compacting
waste) kill rats. Other studies have shown that
insects do not proliferate at landfills if daily cover is
properly applied. (4) All ponds and water sources
will be covered and the areas fenced to prevent
access by predators such as ravens, coyotes, or kit
foxes. (5) The proponents entered into the mitigation
agreement with the NPS to provide for additional
mitigation measures if necessary. (6) The EIR
includes responses to comments, including the Park
issues identification paper, stating that the lead agen-
cies determined that existing data were available and
sufficient to address impacts to biodiversity and
ecosystem function. The EIR addresses such possi-
ble impacts from the project as “habitat loss, addi-
tional nutrients originating directly or indirectly from
landfill material (defined as ‘eutrophication’ by
NPS), the introduction of exotic species, nitrate
deposition, and global warming.” The comments
give the example that biodiversity could be affected
15170 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
by “ ‘changes in the relationship between species in
the form of increases in predator/scavenger popula-
tions in response to increased food availability at the
landfill site, and from increased road kills.’ ” These
impacts and appropriate mitigation were discussed in
the EIR.
Nat’l Parks & Conservation Ass’n v. County of Riverside, 84
Cal. Rptr. 2d 563, 576 (Cal. Ct. App. 1999). “It is speculative
whether the eutrophication effect will occur, but if it does the
NPS agreement provides for environmental mitigation mea-
sures to deal with the problems.” Id. at 577.
In conclusion, my colleagues claim that “[t]his patchwork
cannot serve as a ‘reasonably thorough’ discussion of the
eutrophication issue” demonstrably and grossly mischaracter-
izes the record, and is flatly wrong. It inappropriately gives
the back of this Court’s hand to a massive and thorough pro-
cess and resulting responsible environmental decisions and
documents.
IV
HIGHEST AND BEST USE
The appellees now claim pursuant to the FLPMA that
BLM’s appraisal of the value of the federal land to be trans-
ferred to Kaiser for the landfill failed to consider the “highest
and best use” of that property as part of the intended commer-
cial landfill. Their untimely assertion is that BLM’s selection
of potential land uses for its highest and best use determina-
tion did not include the use as a landfill as one of its markers.
See 43 C.F.R. § 2201.3-2(a)(1), (2). They argue that Kaiser is
not paying enough for the federal lands it seeks to acquire.
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15171
A.
Failure to Exhaust
The first problem with this newly-minted claim is that the
plaintiffs did not present it to the IBLA, as they were required
to do pursuant to the jurisdictional doctrine of exhaustion.
Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th
Cir. 2006) (“The APA requires that plaintiffs exhaust admin-
istrative remedies before bringing suit in federal court. 5
U.S.C. § 704. This requirement applies to claims under
NEPA.”). I draw this conclusion from the Statements of Rea-
sons for their appeal to the IBLA — one from the NPCA and
one from the Charpieds.
First, the NPCA’s Statement of Reasons for the appeal:
II. THE BLM WILL NOT RECEIVE FAIR
MARKET VALUE FOR THE EXCHANGE.
Any disposal of federal land must be compensated
at “fair market value of the use of public lands and
their resources.” 43 U.S.C.A. § 1701(a). Here, the
compensation being offered in exchange for the pub-
lic lands in question is inadequate, and egregiously
low. As a part of the land exchange, BLM will hand
over 3,481 acres of federal land just outside Joshua
Tree, providing the bulk of lands needed by Kaiser
for the proposed Landfill. In return, Kaiser will
transfer 2,486 acres of private land to BLM. To com-
pensate for the approximately 1,000-acre differen-
tial, Kaiser will also pay BLM a lump sum of
$20,100, which is well below the fair market value.
Kaiser anticipates huge profits from a landfill opera-
tion on the undervalued BLM land, well beyond the
$20,000 amount that would be paid for approxi-
mately one third of the property. Here again, Kaiser
15172 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
and a few other parties will benefit at a significant
cost borne by the national treasury.
As for specific defects in the method of evaluation, this is
what NPCA said:
Here, BLM’s own analysis reveals its failure to
incorporate wildlife and aesthetic value into the val-
uation of the federal lands. An appraiser, in deter-
mining market value, “shall include historic,
wildlife, recreation, wilderness, scenic, cultural, or
other resource values.” 43 C.F.R. 2201.3-2(a)(3).
Certainly, BLM land in close proximity to Joshua
Tree (1.5 miles away) carries significant wildlife,
wilderness, scenic, and cultural value to the one mil-
lion yearly visitors to Joshua Tree. The land
exchange appraisal prepared for BLM does not accu-
rately reflect this value.
Nowhere does this statement with sufficient clarity identify
as a flaw BLM’s alleged failure to value its lands as part of
a proposed landfill, nowhere does it use the term “highest and
best use.” The reason given is generic and not specific or par-
ticularized.
“[A]dminstrative proceedings should not be a game or a
forum to engage in unjustified obstructionism by making
cryptic and obscure references to matters that ‘ought to be’
considered and then, after failing to do more to bring the mat-
ter to the agencies’ attention,” seeking to attack it in court. Vt.
Yankee Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 553-54 (1978). The purpose of the exhaustion
requirement is two-fold. The requirement is designed (1) to
“avoid [ ] premature claims,” and (2) to “ensur[e] that the
agency be given a chance to bring its expertise to bear to
resolve a claim.” Great Basin Mine Watch, 456 F.3d at 965
(quotation omitted). The NPCA’s statement, vaguely alleging
without explaining why the land was undervalued, serves nei-
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15173
ther of the twin objectives of exhaustion. The proof of this
pudding is in the eating. Nowhere in the IBLA’s decision is
the valuation as a landfill “issue” addressed, and not because
they overlooked it, but because the plaintiffs did not raise it.
Everything the plaintiffs did raise was addressed.
The Charpieds’ Statement of Reasons for the appeal is no
better; in fact, it is worse. In what amounts to a 36-page jere-
miad laced with invective and unsupported allegations of cor-
ruption, payoffs, and kickbacks against numerous individuals
and all the agencies involved — including the Nature Conser-
vancy — they attack everything in sight — except the BLM’s
choice of its appraiser’s method of valuation. Again, no men-
tion of a valuation-as-a-landfill deficiency, no use of the
words “highest and best use,” and no reference to the relevant
valuation rules. Instead, we find statements like this: “We
charge the California BLM with the under-value of the select
public lands in their continual serving of preferential treat-
ment to the developers, while ripping off the taxpayers.” “The
taxpayer is being swindled.” “BLM lied . . . .” “The U.S.
Attorney advances ‘lame contentions’ . . . .” “The BLM
shamelessly extorts from the Constitution and the people
[powers it doesn’t have].” “Gee, some guys [like Kaiser] get
all the breaks.” “In short, the smooth talking polluters played
Washington D.C. officials like a fiddle.” “Payola.” “If we
haven’t made ourselves clear, perhaps this is a good time to
remind the [Administrative Law Judge] that this proposal
stinks of back room deals, hidden agendas and intrigue, lacks
any semblance of integrity or ethics in government, and is
worthy of an Inspector General’s investigation.”
The only thing that is clear about this Statement of Reasons
is that the Charpieds are against this proposal. They are not
interested in a “hard look,” only in stopping the project,
period. Interspersed between all the unproductive name call-
ing, they raise every objection one might imagine — except
the issue of “highest and best use” upon which they now
attempt to prevail. Shades of Vermont Yankee.
15174 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Looking at the IBLA’s opinion, one sees that the IBLA
directly addressed all the objections the Charpieds and NPCA
did raise. This fact underscores the wisdom of the exhaustion
rule. If you raise it, the IBLA will examine and answer it.
Again, I turn to the record:
Section 206(b) of the FLPMA requires that the
values of the public and private lands exchanged be
equal or equalized by the payment (absent waiver in
appropriate circumstances) of not more than 25 per-
cent of the total value of the land transferred out of
Federal ownership. 43 U.S.C. § 1716(b) (1994); 43
C.F.R. §§ 2201.3(a) and 2201.5(c)(2); see Brent
Hansen, 128 IBLA 17, 19 (1993); Havasu Heights
Ranch & Development Corp., 102 IBLA 1, 7-8
(1988).
The Charpieds assert that BLM undervalued the
selected public lands taken by KEM in the exchange
(Charpieds’ SOR at 1-2), suggesting that it did not
meet the requirements of 43 C.F.R. §§ 2201.3(a) and
2201.5(c)(2). NPCA also argues that BLM will not
receive fair market value for the exchange. (NPCA
SOR at 5-6). It is well established that a party chal-
lenging an appraisal determining fair market value is
generally required to either show error in the meth-
odology used in determining fair market value or,
alternatively, submit its own appraisal establishing
fair market value. See Voice Ministries of Farming-
ton, Inc., 124 IBLA 358, 361 (1992); High Country
Communications, Inc., 105 IBLA 14, 16 (1988).
Appellants have submitted no appraisal here. Nor
have they shown error in the methodology of the
appraisal. We accordingly do not agree that the pub-
lic is not receiving full value for the selected public
lands. In these circumstances, the BLM appraisal is
properly upheld. See, e.g., Brent Hansen, 128 IBLA
at 19; City of Santa Fe (On Judicial Remand), 120
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15175
IBLA at 315; Burton A. McGregor, 119 IBLA at
105.
We specifically reject the Charpieds’ argument
(SOR at 1) that BLM failed to properly value the
reversionary interest in the tract of land they describe
as the campsite/millsite lands. BLM instructed the
appraisers to appraise the reversionary interest in the
surface estate of the tract in terms of the “fee simple
estate, disregarding the [e]ffect of any title encum-
brances,” including the reversionary interest, and to
appraise the tract “as if in a raw, unoccupied state,
disregarding any of the existing improvements.”
(Appraisal Report, Vol. II, at iv, 4, 14). The record
indicates that these instructions resulted from an
agreement between BLM and KEM which was
designed to resolve the problem of how to appraise
the reversionary interest, under which KEM agreed
to pay for the full fee simple title to the campsite/
millsite lands even though it already held the princi-
pal interest in those lands. (Letter to BLM from
KEM dated May 5, 1993). The surface estate was
patented to KSC in 1955 and was being held subject
only to KEM’s continued compliance with the terms
of the patent. So long as it did so, KEM could hold
the surface estate indefinitely, subject to the possibil-
ity of reverter. We find no fault with this compro-
mise, and appellants have provided no basis to
disturb it. To avoid even the possibility of under-
valuing its reversionary interest, BLM instructed the
appraiser to value that interest as if it were a fee sim-
ple interest in the surface estate of the land, that is,
as if the reverter had occurred. This undoubtedly
increased the value attributable to the reversionary
interest, thus maximizing its value for purposes of
the exchange and benefitting the United States by
increasing the overall value of the selected public
lands in the exchange.
15176 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
We also reject the Charpieds’ argument (Char-
peids’ SOR at 1) that, by disregarding revenue from
improvements that have been built on the campsite/
millsite lands, BLM undervalued the reversionary
interest. That argument disregards the critical fact
that, if the lands ever had reverted to the United
States, those improvements could be removed. Such
improvements and associated “revenue stream”
belong to KSR and its successors, not to the United
States, which has no claim to reimbursement for
their value.
By the same token, the valuation of the offered
private lands is not defective because it did not
include the value of railroad tracks which cross the
property (see Charpieds’ SOR at 2), as those
improvements will not belong to the United States
following the exchange, but will remain in Kaiser’s
possession on the property under authority granted
by the right-of-way. In these circumstances, it was
appropriate to value the lands “as if in a raw, unoc-
cupied state, disregarding any of the existing
improvements,” (Appraisal Report, Vol. III at 5, 23),
as those improvements can be removed by the right-
of-way holder.
The Charpieds assert that the appraisal misstates
the present use classification of the selected public
lands as “designated for Open Space and Conserva-
tion.” (Charpieds’ SOR at 1-2). We are unable to
find such statement, and the Charpieds provide no
citation. The appraisal Report expressly states to the
contrary that the selected public lands were “ap-
praised based on [their] estimated highest and best
use as if available in the open market, in accordance
with the underlying zoning regulations, County of
Riverside General Plan land use recommendations,
and [CDCA] Plan land use recommendations”
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15177
(Appraisal Report Vol. I at 43-44), concluding, in
view of the absence of “imminent development
potential,” that “the highest and best use of the
selected public lands is estimated to be holding for
speculative investment and future capital apprecia-
tion.” Id. at 47.
The Charpieds argue that the Notice of Exchange
Proposal (NOEP) violated 43 C.F.R. § 2201.2(a)(1),
because it failed to name Kenneth Statler as a party
“involved in the present exchange.” (Charpieds’
SOR at 2). Appellants have failed to show that
Statler, who apparently at one time held a leasehold
interest in a portion of the campsite lands that has
now expired, owns any interest in the lands involved
in the exchange. Accordingly, we agree with KEM
that he is not “involved in the present exchange” and
need not have been identified under 43 C.F.R.
§ 2201.2(a)(1). Nor did the NOEP need to mention
MWD (Charpieds’ SOR at 20), which is not a partic-
ipant in the exchange, but is instead the grantee of a
right-of-way.
The Charpieds also argue that the NOEP violated
43 C.F.R. §2201.2(a)(2) by not identifying 400 acres
of desert tortoise habitat that KEM will donate to
BLM. That “donation” is actually being made as
mitigation for the expected loss of desert tortoise
habitat caused by the widening of Eagle Mountain
Road. We agree with KEM that it was not required
to list those lands in the NOEP because, at the time
of the preparation of that document, the extent of
loss of habitat was not known and could not have
been accurately foreseen. At this time, KEM has
committed itself (as a condition of the land exchange
agreement) to purchase 400 acres of tortoise habitat
and donate it to the United States for preservation to
mitigate expected damage to 160 acres of tortoise
15178 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
habitat resulting from the widening of Eagle Road.
We find nothing impermissible in that. The valuation
of the selected public land and offered private lands
are not affected. Public involvement in this process
can await the execution of the agreement.
Both NPCA and the Charpieds argue that BLM
erred by failing to take into account that title to the
campsite/millsite lands had reverted to the United
States because the terms of the reverter in the patent
had occurred. Indeed, they presume that title to the
lands has reverted and make further assumptions
accordingly. See, e.g., Charpieds’ SOR at 2-3
(asserting that KEM’s occupancy of these lands is
trespass, and challenging the legality of a lease of
surface rights issued by KEM to Statler). In view of
the fact that BLM has agreed to deed its interest in
the lands (whatever it may be) to KEM, this land
exchange will resolve these questions once and for
all. As noted above, BLM has valued the campsite/
millsite lands as if the land had already reverted to
the United States. This moots the question of
whether title to the lands has, in fact, reverted.
There is no doubt that the Charpieds were aware of the pre-
cise “highest and best use” argument they chose not bring to
the attention of the IBLA. They asserted this very same argu-
ment in earlier cases; see, e.g., Donna Charpied, 137 IBLA
45, 47 (1996). To quote the IBLA from that case,
They [the Charpieds and others] contend that the
appraisers failed to consider that the Federal land to
be exchanged is proposed to be used as a landfill,
and that, as a result, the land should be . . . valued
in comparison to landfill sites, instead of being
treated as mine support lands . . . .
Id. (emphasis added).
 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15179
Notwithstanding their clear awareness of this “comparison”
issue, the Charpieds did not raise it in this matter until they
arrived in federal court, an acute violation of the exhaustion
rule. Then, they finally hired their own appraiser — Stephen
Roach — and offered to the district court new “evidence” on
this new issue. Too late, fatally too late. NPCA recognizes
this deficiency, claiming that to have raised this valuation
issue to the IBLA would have been “futile.” NPCA’s Answer-
ing Brief at 56. Why futile? Because it did not work in the
Charpieds’ earlier case. In short, both decided not to pursue
it here — but only the NPCA explains why.
B.
The Herzog Appraisal
Nevertheless, when they did insert this new issue into the
district court case, allegedly supported by an appraiser, Ste-
phen Roach — who was never involved in the administrative
process at all — BLM did what it would have done had it
been given timely notice of this additional concern: they hired
a new independent appraiser — Steven Herzog — to evaluate
it. So much for futility. BLM instructed Mr. Herzog indepen-
dently to review David Yerke’s earlier 350 page appraisal
“[i]n light of the Desert Citizens decision,” referring to our
opinion in Desert Citizens Against Pollution v. Bisson, 231
F.3d 1172 (9th Cir. 2000). In that case, we held that the use
of property should be “considered” in evaluating the highest
and best use. Desert Citizens, 231 F.3d at 1180-84. The pur-
pose of Mr. Herzog’s report was to “supplement the adminis-
trative record.”
Steven Herzog holds the designation of MAI from the
Appraisal Institute. He is also a Certified General Real Estate
Appraiser in California, a Registered Professional Forester,
and the President of the Herzog Group. To assist him in this
endeavor, he hired the Recon Research Corporation for its
discount rate as applied to future income for landfill lands
15180 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
expertise, and EMCON, a civil engineering company with
landfill experience.
Despite the Charpieds’ fatally tardy assertion of this matter,
Mr. Herzog did what BLM and Desert Citizens asked him to
do: he thoroughly considered the value of the land in connec-
tion with its value as a landfill and filed his report accord-
ingly. He concluded as of the relevant date that the landfill
was “not a financially feasible use of the selected [federal]
land.” It follows that the “highest and best use” of the federal
lands being appraised could not have been for a landfill. He
noted that as of 1993, “difficulties faced by landfill develop-
ers in obtaining required approvals impacted the ability and
desire of companies to finance such projects.” He pointed out
that operators such as Waste Management, Inc., Western
Waste, and BFI began to abandon their investments. He
opined that “[t]he opportunity costs of investing tens of mil-
lions of dollars in a high-risk venture, without any return on
that investment for at least ten years are enormous,” and that
“[a] knowledgeable investor with millions of dollars to invest
would not have considered investment in a rail-haul landfill
to be the route to obtaining a reasonable return on the invest-
ment.”
So, if this is true, that there was no market for the federal
lands as a landfill, why would Kaiser doggedly pursue this
proposal? Because Kaiser already owns the abandoned holes
in the ground and the railroad necessary to serve it and has
a considerable investment in the project. The idea that some-
one else might purchase the selected federal lands for a land-
fill is palpably and demonstrably hallucinatory.
This is what Mr. Herzog has to say about Kaiser’s deter-
mined motivation in a declaration provided to the district
court summarizing his 108-page report (plus attachments)
submitted to BLM:
61. . . . Under this analysis, the net present value
[“NPV”] of the income generated from the project
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15181
would be $2.48 million. Not included in the calcula-
tion of this figure is any allowance for entrepreneur-
ial profit, the $13 million spent on permitting after
September 25, 1997, the $17 million that would be
required to upgrade the railroad and relocate and
upgrade the paved road, or any allowance for on-site
infrastructure cost and staffing. Consequently, the
NPV for the net income to the landfill operation is
dwarfed by the expenditures that would be required
to obtain that income — a conclusion BFI obviously
reached in 1994. Report pp. 106 - 107.
62. I reached the conclusion that, as of the effec-
tive date, landfill use was not financially feasible.
Yet, Kaiser and its remaining associated investors
went on to spend $13 million more pursuing final
permits. Through 1994, approximately $49 million
had been spent on the project. However, BFI had
spent $45 million of that, and walked away. The
remaining proponents had only $4 million invested,
but the only way to recover any of the investment
was to press on with the permitting effort. The inter-
nal dynamics of the stakeholders in the endeavor cre-
ated a situation where motivations existed that were
different from what a single entity, which had been
solely financing the project from the beginning,
would have faced. Report p. 108.
63. In addition, the expectation constantly existed
that the time when final permits would be obtained
was near at hand. The obtaining of the goal always
seemed to be near enough that continued expendi-
tures were justified. To stop the process would have
meant the forfeiting of all prior expenditures,
because the final permits were needed to put the
project in its most marketable condition. As noted
earlier, the pending sale is contingent upon final per-
15182 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
mits being obtained and all litigation being resolved.
Report p. 108.
64. The conclusion of Mr. Roach that a landfill
was economically feasible is based completely on
the observation that Kaiser was investing in a landfill
at the site. First, this “observation” is not a proper
method of assessing the economic feasibility of a
landfill use. See definition of economic feasibility at
¶ 11. Moreover, this “observation” does not consider
the circumstances and history of Kaiser’s investment
in the project or the fact that Kaiser, since it owned
the railroad, the permits, and other aspects of the
project related to the selected lands, had different
motivations than others in the marketplace would
have had. Mr. Roach’s conclusion appears to be
without market support, and is based on an incom-
plete understanding of the factors motivating Kaiser
to continue to invest in Eagle Mountain.
Kaiser is correct when it argues that BLM’s chief state
appraiser in California, Nancy Ortiz, reviewed Mr. Herzog’s
report and said in a 12-page report:
From my review it appears that Mr. Herzog has
been conscientious in providing an independent anal-
ysis and his report meets applicable [UAS] and Fed-
eral standards and the requirements of the
instructions for the assignment provided by the
BLM. He has thoroughly analyzed the subject’s
potential for landfill as a highest and best use, using
appropriate methods and consultants, and provided a
feasibility conclusion based on his analysis. As the
reviewer, I believe that the appraiser has addressed
concerns relative to the landfill as a potential highest
and best use . . . .
The BLM District Manager added this perspective to Mr. Her-
zog’s appraisal:
NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15183
We feel the administrative record supports BLM’s
decision in this case, and disagree with Plaintiff’s
assertions to the contrary. However, in light of the
Ninth Circuit’s opinion in Desert Citizens, we felt an
independent analysis of whether a landfill was the
highest and best use of the federal lands was justi-
fied. We were prepared to accept the results of this
new analysis, regardless of its implications to the
District Manager’s decision of September 25, 1997.
In conclusion, he said, “I have reviewed Mr. Herzog’s report
and found nothing which indicates that it is necessary to
revise or revisit the District Manager’s decision of September
25, 1997 approving the exchange.” This decision was served
on the Charpieds in January, 2003; and Mr. Herzog’s report,
plus the reports of the chief appraiser and the district manager
were formally made part of the administrative record and offi-
cially certified and lodged as such with the district court on
February 7, 2003. How my colleagues can claim that this is
not a “final, appealable decision” is a mystery.
Did the plaintiffs timely appeal the District Manager’s final
conclusion to the IBLA, as they could have pursuant to 43
C.F.R. § 4.410(a)? No. This failure alone should bar them
from bringing it sideways into this case. So what the Char-
pieds say BLM did not do has in fact been done, and remains
unchallenged by them.
We faced a similar problem in Warm Springs Dam Task
Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980). In that case,
a deficiency in the Army Corps of Engineers NEPA process
had been cured during litigation. Calling these “supervening
events,” we denied remand to the Corps because the Corps
had already conducted studies definitively to answer the mat-
ter at issue. Id. at 1026. As we said in Friends of the Clearwa-
ter v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000), “if extra-
record evidence shows that an agency has rectified a NEPA
violation after the onset of legal proceedings, that evidence is
15184 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
relevant to [what] relief should be granted.” See also Forest
Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1095-96 (9th
Cir. 2003). At the very least, we should follow this example.
BLM has done what we suggested in Desert Citizens. It has
thoroughly “considered” the issue and issued a manifestly
defensible answer. To remand at this point is a clear exercise
in blind form over substance.
CONCLUSION
I end with the Technical Advisory Panel’s evaluation: “the
proposed Eagle Mountain Landfill could well become one of
the world’s safest landfills and a model for others to emulate.”
Don’t hold your breath.