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National Indian Youth Council v. Watt

Citation: 12 ELR 20110
No. No. 80-2097, 664 F.2d 220/16 ERC 1889/(10th Cir., 11/12/1981) Aff'd

The court affirms the district court's decision, 11 ELR 20107, that the Department of the Interior's (DOI's) approval of a lease and plan for surface mining of coal on Navajo lands complied with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Initially, the court declares that the "rule of reason" is the controlling standard for judicial review of an environmental impact statement (EIS). Next, applying the NEPA regulations of the Council on Environmental Quality (CEQ), it upholds DOI's decision that a restructured mining plan issued in 1978 did not require supplementation of the EIS prepared for a 1975 mining plan. Neither an acreage reduction in the 1978 plan nor the incorporation of various provisions for environmental protection constitute "substantial changes" from the previous plan. In addition, the passage of the Surface Mining Control and Reclamation Act does not qualify as a "significant new circumstance" and the possibility that improved reclamation measures might be available at some unidentified time in the future is not "significant new information." The court also holds that the EIS was not deficient for failure to discuss the alternative of delaying the commencement of mining until revegetation information is obtained from nearby mines. Neither NEPA nor any regulation requires an agency to address delay as a specific alternative. Next, the court finds that appellees complied with the NHPA's requirement that federal agencies consider the effects of any federally licensed undertaking on historic sites. The requirements of the Advisory Council on Historic Preservation's regulations that agencies (1) consult with the State Historical Preservation Officer, (2) request a designiation of eligible archaeological sites by the Secretary of the Interior, and (3) obtain comments from the Council, were met. Although the agencies technically failed to comply with a timing requirement by obtaining Council comments before requesting site designations, this technicality had no substantive effect. The court also holds that NHPA consultation prior to approval of the 1976 lease was not required. Approval of the mining plan and not the lease was the federal action which might affect historic sites.

Counsel for Appellants
John J. Kelley
Luebben, Hughes & Kelley
805 Tijeras Ave. NW, Albuquerque NM 87102
(505) 842-6123

Counsel for Appellees
D. Alan Rudlin
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Jerry L. Jackson; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7377

Joined by McWilliams and McKay, JJ.