Utah v. United States Department of the Interior

No. 99-4104 (210 F.3d 1193) (10th Cir. April 25, 2000)

ELR Digest

The court holds that the state of Utah cannot intervene in the approval process of a lease between a Native American tribe and a private corporation that intended to construct and operate a temporary storage facility for high-level nuclear waste on the leased land. As required by 25 U.S.C. § 415(a), the tribe submitted the proposed lease to the Bureau of Indian Affairs (BIA) so that it could review and approve the lease. The BIA conditioned approval of the lease on the successful completion of an environmental impact statement (EIS) evaluating the environmental impacts of the lease in accordance with the National Environmental Policy Act (NEPA), and on the issuance of a license by the Nuclear Regulatory Commission (NRC). The state sought to intervene in the NRC's EIS and licensing proceedings and was admitted as a party. The BIA, however, did not allow the state to intervene in the lease approval process before it. The court first holds that the state's action against the BIA is not yet ripe for judicial review. The state will not suffer significant hardship if the court withholds consideration of the claim at this time. The state seeks to intervene in the lease approval process to ensure that the BIA considers environmental factors as required by § 415(a), but the state will have ample opportunity to raise its environmental concerns during both the NRC's environmental review process and the licensing process in which it has been permitted to intervene. Consequently, the state need not participate in the lease approval process to present its concerns. Moreover, because the NRC must examine environmental concerns more rigorously in NEPA proceedings than the BIA does in its subsequent § 415(a) lease review, the state will suffer no hardship by the denial of review at this time. Moreover, the state's claimed harms are contingent, not certain or immediate, because the state can do no more than presently allege that if the lease is approved and the facility developed, it may detrimentally impact the environment.

The full text of this opinion is available from ELR (6 pp., ELR Order No. L-208).

Counsel for Plaintiff
Philip C. Pugsley, Ass't Attorney General
Attorney General's Office
236 State Capitol, Salt Lake City UT 84114
(801) 538-1130

Counsel for Defendants
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20491]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]