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Peshlakai v. Duncan

Citation: 9 ELR 20690
No. No. 78-2416, 476 F. Supp. 1247/13 ERC 1721/(D.D.C., 06/19/1979)

The court denies plaintiffs' motions for a temporary restraining order and a preliminary injunction in a suit challenging federal approvals of uranium mining and milling activities in the San Juan Basin of New Mexico for alleged violations of the National Environmental Policy Act (NEPA). The court holds that plaintiffs have not made the requisite showing of immediate and irreparable injury in connection with their motion for a temporary restraining order against the Secretary of the Interior's approval of an interim mining and reclamation plan for a pilot in situ uranium leaching project.The court finds that the approval would not irrevocably commit the Secretary either practically or legally to formal approval of the project and that environmentally harmful activities would not be undertaken pursuant to the interim approval until the court ruled on the motion for a preliminary injunction.

The motion for injunctive relief also directly concerns only the pilot project. In determining that plaintiffs' chances of success on the merits of their claims of NEPA violations are minimal, the court first upholds defendants' determination not to prepare an environmental impact statement (EIS) in conjunction with the approval of the in situ mining plan. Reviewing the case law regarding burdens of proof and standards of review for negative threshold determinations under NEPA, the court rules that plaintiffs have not shown that the Department of the Interior failed to take a hard look at the project or was unreasonable in concluding that it would have no significant adverse environmental effects.The court finds that the threat of contamination of the surrounding ground water and increased radiation exposure of workers and members of the public as well as the magnitude of disturbances of the land surface will be minimal. In addition, the enconomic and social impacts of the project appear to be favorable. The court next rules that although defendants did violate NEPA by failing to prepare either an EIS or environmental assessment on the 1972 sale of uranium exploration and mining leases on Navajo lands, plaintiffs are barred by laches from asserting such a claim because the seven-year delay between the lease sale and the filing of this lawsuit is unreasonable. The court next rejects plaintiffs' contention that preparation of a regional EIS was required on the basis of the Supreme Court's decision in Kleppe v. Sierra Club, 6 ELR 20532. Noting that there is no comprehensive federal plan for development of this region, the court determines that the federal approvals of various activities in the basin constitute widely scattered actions by six different agencies taken or planned during a 30-year span rather than a related set of actions whose cumulative effects must be reviewed in a regional EIS. Plaintiffs have thus failed to show that the absence of a regional EIS at this time is arbitrary or unreasonable. The court also points out that even if a regional EIS were required, its absence would not warrant the issuance of an injunction against the in situ project for which the site-specific requirements of NEPA have been met. And finally, the court rules that injunctive relief is additionally inappropriate because the balance of injuries and equities tips in defendants' favor.

Counsel for Plaintiffs
Bruce J. Terris, Norman L. Dean
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Counsel for Federal Defendants
Thomas J. Riley, David C. Cannon, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2845

Counsel for Intervening Defendants
Daniel Joseph, Randall L. Sarosdy
Akin, Gump, Hauer & Feld
Suite 400, 1333 New Hampshire Ave. NW, Washington DC 20036
(202) 457-7700

Peter J. Nichols, Patrick Norton
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000