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National Indian Youth Council v. Andrus

ELR Citation: 11 ELR 20107
Nos. No. 78-0586-C, 501 F. Supp. 649/14 ERC 2131/(D.N.M., 08/22/1980)

The district court denies plaintiff's request for a permanent injunction and rules that approval of a 1976 coal mining lease agreement between two coal and gas companies and the Navajo Tribe, as well as a subsequent 1978 Mining Plan, violate neither the National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), the Historic and Archeological Data Preservation Act (HADPA), nor an executive order dealing with protection of archaeological sites. In 1976, the companies and the Navajo Tribe renegotiated a coal mining lease agreement they had originally entered into in 1968. Based upon two environmental impact statements (EISs) prepared by the Bureaus of Reclamation and Indian Affairs, the Department of the Interior approved the 1976 lease agreement. The companies subsequently submitted a Restructured Mining and Reclamation Plan (1978 Plan) to the Office of Surface Mining (OSM) pertaining to proposed mining plans and impacts on the northernmost part of the leasehold. Relying upon OSM's environmental assessment (EA) of the 1978 Plan, the Department of the Interior in 1980 issued a Finding of No Significant Impact (FONSI) and approved the 1978 Plan without the issuance of a supplemental EIS. Before addressing plaintiffs' allegations regarding the inadequacy of the EISs, the court makes several threshold determinations. First, the Department of the Interior's 1980 decision that a supplemental EIS was unnecessary prior to approval of the 1978 Plan is reviewable under the 1979 Council on Environmental Quality NEPA regulations. Second, because the EA is neither the functional nor procedural equivalent of an EIS, it is not included in the EIS record and will not be reviewed by the court to determine if there was adequate NEPA compliance. Third, the Department of the Interior made a reasonable conclusion that since it made not substantial changes in the project and no new circumstances had arisen relative to reclamation in the interval between the final EISs and approval of the 1978 Plan, a supplemental EIS was not required. Rejecting plaintiffs' contention that the EISs originally prepared for the project contain an inadequate discussion of land reclamation and revegetation, alternatives to the proposal, archaeological resources on the leasehold, and human impact, the court applies a rule of reason and concludes that the record represents a reasonable and good-faith compliance with NEPA's requirements. The court similarly rejects plaintiffs' argument that the Department of the Interior violated the NHPA by failing to consider, prior to issuance of the 1976 lease, the potential effects of the mine operation on the archaeological resources in the area. Further, because Executive Order No. 11593, dealing with the inclusion of eligible archaeological sites on the National Register of Historic Places by a certain deadline, does not have the force and effect of law, the court holds that it does not provide plaintiffs with a private cause of action for its enforcement. The court also holds that plaintiffs' allegations regarding violations of the HADPA are premature since no cause of action arises until commencement of the mining activities. Finally, the court determines that because the Navajo Tribe is an indispensible party, the court must dismiss plaintiffs' claim that approval of the leases constitutes a breach of fiduciary duty.

Counsel for Plaintiffs
John J. Kelly, Richard H. Hughes
Lueben, Hughes & Kelly
805 Tijeras Ave. NW, Albuquerque NM 87102
(505) 842-6123

Counsel for Defendants
R.E. Thompson, U.S. Attorney; James Grant, Ass't U.S. Attorney; David C. Cannon Jr.
P.O. Box 607, U.S. Cthse., 500 Gold Ave. SW, Albuquerque NM 87103
(505) 766-3341

Counsel for Intervenor-Defendant Consolidation Coal Co.
Mark K. Adams
Rodey, Dickason, Sloan, Akin & Robb
Suite 700, 20 First Plaza, 3rd & Tijeras Ave. NW, Albuquerque NM 87102
(505) 765-5900

T.S. Ellis, D. Alan Rudlin
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Counsel for Intervenor-Defendant El Paso Natural Gas Co.
Victor R.Ortega, William C. Parsley
Montgomery, Andrews & Hannahs
325 Paseo de Peralta, Santa Fe NM 87501
(505) 982-3873