second, that the lease sale underlying the proposed project violated NEPA because neither an EIS nor an environmental assessment (EA) was prepared on that sale. And third, it is argued that approval of the project is part of a number of actions in the San Juan Basin region for which a regional EIS should have been, but was not, prepared. These contentions will be considered seriatim.
Mobil's in situ project, located on five acres of land in the Crownpoint area, is a pilot project
which has as its purpose the determination whether uranium leaching (also known as solution mining) is feasible in New Mexico.
Traditional mining for uranium is carried on underground. Solution mining, most simply described, involves the circulation of water and a chemical solution called leachate
to underground areas where the uranium is located by means of a system of injection and production wells. The uranium is oxidized and dissolved underground and brought to the surface as part of a fluid. That fluid is then pumped to an ion exchange column where the uranium is deposited on resin beads through an anion exchange process. The remaining fluid, which no longer contains uranium, is then pumped back underground through the injection wells, with the chemical solution added, in a continuous cycle.
A ten-year lease to the land underlying the proposed in situ project was sold to Mobil by the Bureau of Indian Affairs (BIA)
in February 1972. Thereafter, Mobil received approval from the U.S. Geological Survey (USGS) for exploration plans involving the site. Between 1973 and 1977, Mobil drilled 124 exploration holes in the area, and in May 1978, it applied for approval of a mining and reclamation plan (25 C.F.R. § 177.7). The USGS prepared an environmental assessment, some 164 pages in length, with an appendix consisting of 70 pages. After several layers of review within the Department of the Interior, and based upon that EA, the Department ultimately concluded that a full-fledged environmental impact statement was not required because the pilot project would not have significant environmental impacts. On June 21, 1979, the Secretary of the Interior approved Mobil's mining plan. The motion for preliminary injunction challenges that determination and seeks to halt Mobil's implementation of the permit it received from the government.
NEPA requires the preparation of an EIS for every major federal action which may have a significant impact on the quality of the human environment. See Scientists' Institute for Public Information v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 404-05, 481 F.2d 1079, 1088-89 (D.C.Cir.1973). Plaintiffs contend that the in situ project is such an action, and they rely on several factors in support of that contention. Before discussing these specific factors, it may be useful to state briefly the standard of review that must be applied by the Court.
The responsibility for making a threshold determination as to whether an EIS is required by NEPA for a particular project lies with the federal agency involved. Metlakatla Indian Community v. Adams, 427 F. Supp. 871, 874 (D.D.C.1977); Hanly v. Mitchell, 460 F.2d 640, 645 (2nd Cir. 1972). The burden is on plaintiffs to establish that a decision not to require an EIS constitutes a violation of NEPA. Sierra Club v. Lynn, 502 F.2d 43, 52 (5th Cir. 1974); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 426 (5th Cir. 1973). Such a decision will be reversed by a court only if it is unreasonable ( Wyoming Outdoor Coordination Council v. Butz, 484 F.2d 1244 (10th Cir. 1973)) or arbitrary and capricious. Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir. 1972).
The Supreme Court in two recent decisions has more explicitly defined the role of a reviewing court and the conclusion that emerges from these decisions is that such a court "(must) insure that the agency has taken a "hard look' at environmental consequences," and that, if it has done so, the agency determination may be reversed only if it is arbitrary. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S. Ct. 2718, 2730 n.21, 49 L. Ed. 2d 576 (1976); Vermont Yankee Nuclear Power Co. v. National Resources Defense Council, 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978); see also, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1970).
Plaintiffs do not, however, have the burden of demonstrating that a particular federal action will necessarily affect the human environment to a significant extent. They need merely show that such action may have such an effect. City of Davis v. Coleman, 521 F.2d 661, 674 n.16 (9th Cir. 1975); Maryland National Capital Park and Planning Commission v. U. S. Postal Service, 159 U.S.App.D.C. 158, 168, 487 F.2d 1029, 1039 (D.C.Cir.1973); 40 C.F.R. § 1500.6(a); 36 Fed.Reg. 19344. But see, note 24 Infra.
It is with these general principles in mind that the particular claims of plaintiffs must be examined.
Water Quality. Plaintiffs contend that "excursions" may occur, that is, water may escape from the in situ project site to contaminate the Westwater Canyon aquifer (by horizontal release of fluid) or the Dakota aquifer (by vertical release). However, the record shows that, for a number of reasons, such an event, while it is not impossible, is so unlikely that the probability of its occurring is infinitesimal.
First, more fluid is constantly pumped out of the system than is injected into it.
This creates a net inflow of surrounding groundwater into the area and thus has a tendency to confine the leachate to the production zone. Second, hydrology tests simulating the operation of the system conducted by Mobil indicate that the leachate can be confined to that zone. Mobil has performed computer modeling studies for the pilot test, which simulated its underground leachate flow patterns, with the same result. Third, Mobil has had prior experience with the in situ leaching technology in South Texas for a four-year period, and it has never experienced an excursion there. Fourth, six monitor wells will ring the site and samples will be taken periodically to determine whether any leachate might have escaped despite these precautions. The likelihood of detecting an excursion by this method is nearly one hundred per cent, and appropriate remedial action, which has been considered in exhaustive detail, can be taken. Fifth, the water supply of Crownpoint would be unaffected even if all these safety measures failed because the groundwater flow is away from the town rather than toward it. Moreover, according to one study, if the leachate were somehow carried toward Crownpoint, it would take 1,300 years to arrive there
and would be rendered harmless long before then.
Plaintiffs argue next in regard to the water quality issue that Mobil will not restore that quality to its former levels after the termination of the test project. The EA has noted that following the 14-month production period, Mobil will be required to restore the aquifer within eight months to the levels set by the New Mexico Water Quality Control Commission regulations,
and Mobil will, in fact, do so. This task will be accomplished by a "flushing" operation in which leachate is no longer reinjected underground; water is pumped from the production wells to the surface; it is there treated and purified until it meets the restoration standards; and it is then reinjected into the Westwater formation. The EA has concluded that by this method all the chemicals can be completely removed and the water restored to appropriate levels. Indeed, Mobil has used this same flushing method in its South Texas operation, and the Texas Department of Water Resources considered the restoration there to have been a success.
Laboratory tests likewise indicate that the aquifer can be restored to the New Mexico standards, and their results are strengthened by the fact that the inflow of groundwater surrounding the production zone will aid in restoring the aquifer beyond the data those tests were able to take into account.
It is not without significance in this regard that the water in the Westwater formation aquifer is by no means pure crystalline drinking water, but, largely because of the presence of uranium, it even now fails to meet the community water system standards set by the Environmental Protection Agency under the Safe Drinking Water Act. 42 U.S.C. § 300f et seq. The average gross alpha values and combined total radium-226 and -228 values in that portion of the aquifer underlying the project site are five times the maximum safe limits, and any further deterioration should it occur, contrary to every rational expectation could hardly be regarded as having a significant impact on the human environment. Finally, it is worth noting that the total amount of water that will be recirculated during the pilot test is one one-hundred millionth of the estimated total water in the Westwater Canyon aquifer, and the amount of water that will be actually withdrawn is one-billionth of the water in the aquifer.
Radon Gas. Plaintiffs contend that uranium mining and milling increases the exposure of workers and of the public to potentially harmful radiation. While several possible sources of radiation are mentioned, plaintiffs emphasize especially the emission of radon gas, a decay product of uranium. That contention appears at first blush to be the most serious of those made by plaintiffs. However, upon examination, the radiation threat, too, is realistically nonexistent. According to the interim mining plan, "the maximum . . . additional exposure which might be received from facility operations will . . . add less than one hundredth of one per cent of the ambient radiation background." Or, as that plan also states it, any radon gas from the project "will be undetectable and at no location should exceed one per cent of normal background levels," that is, levels which exist in the atmosphere in any event.
Indeed, "the radon . . . (would be) less than one per cent of what could be expected from a conventional uranium mine."
Land Use Impacts. Plaintiffs argue that yellowcake production will result in surface disturbances, including the construction of roads, the flattening of the drill sites, and the clearing of the surface in the vicinity of the mine and ventilation shafts. These impacts, too, are of minimal significance. The Administrative Law Judge who heard the petition of Sarah McCray to cancel the lease underlying the project determined that all surface areas affected by uranium exploration or production could be reclaimed to a condition at least as good as that existing prior to the start of operations, and that such a reclamation program was already in progress.
Irrespective of whether the ALJ's findings should be given collateral estoppel effect as to all plaintiffs,
his decision clearly was substantively correct, and plaintiffs have made only a feeble effort to show otherwise.
Cultural, Religious, and Socioeconomic Impacts. Plaintiffs next argue that yellowcake production in the area will "wreak havoc" with the culture and religion of the Navajo Indians residing there. Thus, it is said, the Navajo believe that man should maintain proper harmony with the natural world; that mining in the area would destroy places where Navajos pray and the plants they use to heal the sick; and that the plants themselves, in Navajo religious belief, have living spirits. In a somewhat different vein, plaintiffs argue that uranium mining in the area will create thousands of additional jobs and thus will attract may outsiders; and that the Navajos and others residing in the area would have great difficulty coping with the resulting social and economic disruptions.
Most of the arguments advanced by plaintiff are more appropriately addressed to the regional impacts issue discussed in Part IV Infra, since the relatively small area involved in the in situ project would have only a minimal impact on Navajo culture in general in any event. However, whether as applied to the in situ project, or on a broader basis, plaintiffs' contentions are unpersuasive.
Sarah McCray claims that various adverse cultural and religious impacts will result on her land on which the in situ project is located. The Administrative Law Judge found her not to be a credible witness, and this court, which heard her testify, concurs in that assessment. Extensive drilling activities were carried out on her property for years without the slightest objection from her. It was only early in 1978 when she made demands which Mobil would not meet that she joined with the organizational plaintiff in opposing the in situ project.
Insofar as broader impacts are concerned, it is worth noting that the Navajo Tribal Council, elected by the Navajos, has not joined in the cultural and religious objections raised by these plaintiffs. See Johnson v. Chilkat Indian Village, 457 F. Supp. 384, 389 (D.Alaska 1978); Tewa Tesuque v. Morton, 498 F.2d 240 (10th Cir. 1974).
Indeed, the supervisory archeologist for the Navajo Nation has stated that her inspection of the area revealed no surface indications of an historic or prehistoric nature, and that Mobil was to be
. . . commended for its care and diligence in assuring protection of such priceless and irreplaceable cultural resources. If all organizations complied with the law as carefully as Mobil, our descendants would have no grounds for complaint about our custodianship of their heritage.
As concerns economic impacts from the in situ project, plaintiffs recognize, as they must, that "the development will also have aspects which could be regarded as positive for the Navajo, primarily in the form of higher income from jobs and, for the allottees whose allotments are to be mined, royalty payments" (Memorandum, p. 20).
The blunt fact is that the economic and social impacts appear to be overwhelmingly favorable, both in terms of creating jobs for an underdeveloped area and for a people badly in need of economic assistance, and in terms of a uranium production technology which is likely to be more humane and less costly than the traditional underground mining technique. These advantages are not offset by the very minor and speculative environmental impacts plaintiffs assert.
The short of the matter is that while plaintiffs have catalogued and described possible environmental impacts at great length, in vivid detail, and with considerable imagination and ingenuity, in the final analysis these impacts amount to very little, both individually and in the aggregate.
The Department of the Interior has taken a "hard look" at the in situ project through its lengthy and detailed
and it has concluded that a full-fledged environmental impact statement is not required. Moreover, a draft EIS has been prepared for the environmental impacts of uranium development in the Crownpoint area (which will consider, among other things, the environmental impacts of in situ uranium leaching), as well as an EIS for Dalton Pass (located a few miles from Crownpoint) and a generic EIS on uranium milling. Another "hard look" was taken during the administrative hearing in April of this year at which the plaintiffs presented live and documentary evidence without being able to convince the Administrative Law Judge.
Bearing in mind the technical expertise of the Department of the Interior, the lack of real environmental impact, and the fact that an EIS has never been required for a pilot test of solution mining, the Court concludes that the Department's decision not to prepare an environmental impact statement for the in situ project was neither unreasonable nor arbitrary and that it must stand.
On February 15, 1972, the BIA conducted a lease sale in which it offered to sell uranium exploration and mining leases on Navajo lands, including the land underlying Mobil's in situ project. Under NEPA, an environmental impact statement would have been necessary for this lease. See Cady v. Morton, 527 F.2d 786, 793-4 (9th Cir. 1975); Davis v. Morton, 469 F.2d 593 (10th Cir. 1972); but see Sierra Club v. Hathaway, 579 F.2d 1162 (9th Cir. 1978). The Department of the Interior as a matter of practice now prepares environmental impact statements on similar oil and gas leases. See Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975); Alaska v. Andrus, 188 U.S.App.D.C. 202, 580 F.2d 465 (D.C.Cir.1978); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir. 1978). However, Interior did not prepare an EIS, nor did it prepare an environmental assessment to determine whether an EIS was required, and that, too, would be in violation of presently applicable law. See Arizona Public Service Co. v. Federal Power Commission, 157 U.S.App.D.C. 272, 483 F.2d 1275 (D.C.Cir.1973); Maryland National Capital Park and Planning Commission v. Postal Service, 159 U.S.App.D.C. 158, 168, 487 F.2d 1029, 1039 (D.C.Cir.1973); 40 C.F.R. § 1508.9.
Thus, a violation of NEPA occurred, and the real issue on this aspect of the case is whether plaintiffs are barred by laches from pressing the point of that violation.
At the time of the original lease sale, the only relevant federal court decision was that of the District Court for the District of New Mexico in Davis v. Morton, 335 F. Supp. 1258 (D.N.M.1971) which held that approval of lease sales on Indian lands did not constitute "major federal action" under NEPA, and the Department of the Interior followed that decision. Davis was reversed one year later ( Davis v. Morton, 469 F.2d 593 (10th Cir. 1972)) and the decisions cited above, supporting the Tenth Circuit followed thereafter. Yet from 1972 until the present controversy arose, plaintiffs did not raise the issue of a possible violation of NEPA by virtue of the lease sale, and defendants accordingly plead laches.
The doctrine of laches applies to NEPA cases (see, E. g., Save Our Wetlands, Inc. v. U.S. Army Corps of Engineers, 549 F.2d 1021, 1026 (5th Cir. 1977)), as to other types of litigation, and one element of laches in the NEPA context, as in others, is the length of the delay. Save Our Wetlands, Inc. v. U.S. Army Corps of Engineers, supra (two and one-half years); Organizations United for Ecology v. Bell, 446 F. Supp. 535, 547 (M.D.Pa.1978) (three years); Dalsis v. Hills, 424 F. Supp. 784, 788 (W.D.N.Y.1976) (two and one-half years); Smith v. Schlesinger, 371 F. Supp. 559 (C.D.Cal.1974) (seven and one-half months). The delay here, as noted, was unusually long by any standard seven years.
That delay was also unreasonable. The individual plaintiffs signed the leases and thus they knew of them even before they were approved by the Department of the Interior.
To be sure, the organizational plaintiff did not have actual knowledge of the facts until much later. However, as defendants correctly point out, the Friends of the Earth is an international organization with a deep and well-defined interest in environmental matters and extensive resources. Such a group cannot avoid the laches problem for the plaintiffs by the simple expedient of involving itself in litigation at a late stage. See Sierra Club v. Cavanaugh, 447 F. Supp. 427, 430 (D.S.D.1978). Thus, the unreasonableness of the delay must be attributed to all the plaintiffs.
Finally, defendants have suffered substantial prejudice as a result of the delay. Mobil has expended more than $ 19 million on exploration in the Crownpoint area, including almost $ 3 million on the lease on which the in situ project is located, all in reliance on the validity of the lease. See Sierra Club v. Cavanaugh, supra; Friends of Yosemite v. Frizzell, 420 F. Supp. 390, 397 (N.D.Cal.1976).
The leases expire in 1982 unless mining operations are begun prior to that time. If the individual plaintiffs are successful in halting the project until the expiration of the leases as a result of this litigation and the inevitably lengthy controversies surrounding the drafting of an environmental impact statement, they will be able to negotiate new leases at that time on the basis of the uranium Mobil discovered at enormous expense. Equity will not permit NEPA to be used as a means of enrichment in this manner. See Organizations United for Ecology v. Bell, 446 F. Supp. 535, 547-53 (M.D.Pa.1978); Centerview/Glen Avalon Homeowners Ass'n. v. Brinegar, 367 F. Supp. 633, 639-40 (C.D.Cal.1973); Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir. 1976); Sworob v. Harris, 451 F. Supp. 96, 101-102 (E.D.Pa.1978).
Beyond that, it appears that the government is presently weighing the actual environmental impacts of the in situ project in a variety of ways through the environmental assessment of the in situ project itself, the draft environmental impact statement of uranium mining for the Crownpoint area, and by other means (see pp. 1255-1256 Supra ). The environmental impact of the lease sales is necessarily subsumed in these efforts, and the failure to prepare an EIS at the time of the lease sale is thus effectively being cured. To halt all activities in the area for several years because seven years ago the government, acting in good faith, failed to prepare an environmental impact statement for the precise area of the lease sales and even though the in situ project does not, by itself, require an EIS would not only be to exalt form over substance but would be a wholly inappropriate exercise of the Court's equitable powers. See Cady v. Morton, supra, 527 F.2d at 798 n. 12; State of Alaska v. Andrus, 188 U.S.App.D.C. 202, 580 F.2d 465 (D.C.Cir.1978).
The parties devote the bulk of their arguments to the third issue whether a regional environmental impact statement should have been prepared. In practical terms, that issue may be the most important, for if plaintiffs are correct on that question, uranium exploration and mining activity will have to be halted not merely on the in situ project but in the entire San Juan Basin and possibly beyond, and it will thus, as noted Supra, effectively end or delay almost half of the nation's uranium production and jeopardize the exploitation of three-fifths of its uranium reserves.
While that issue is thus of the most far-reaching practical significance, in legal terms it is more easily disposed of, for it appears to have been largely settled by the Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976). Although there are some factual differences between that case and this
differences which plaintiffs assert call for a different result in my view the holding of Kleppe is applicable and controlling here.
The two cases are factually comparable in many ways, this case involving the development of uranium in the San Juan Basin, Kleppe the development of coal in the Northern Great Plains Region. There, as here, it was claimed that a regional EIS was required, and indeed the Court of Appeals for this Circuit held with the plaintiffs on that issue. Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856 (D.C.Cir.1975). However, the Supreme Court reversed, laying down precise guidelines with respect to the necessity for regional environmental impact statements. In essence, the Court held that such environmental impact statements are required in two and only two instances: (1) when there is a comprehensive federal plan for the development of a region, and (2) when various federal actions in a region have cumulative or synergistic environmental impacts on a region.
No comprehensive federal plan for the development of the San Juan Basin region exists, and plaintiffs can therefore prevail only if it is found that a number of federal actions in the region have such a cumulative or synergistic effect that a regional EIS is required. Plaintiffs argue in this regard that the following federal actions taken or planned since 1970 in the San Juan Basin Region must be considered as cumulative or synergistic: lease sales by the Bureau of Indian Affairs; approval by the U.S. Geological Survey of a number of exploration plans; acquisition of legal or equitable interests to yellowcake production enterprises by the Tennessee Valley Authority; approval by the Environmental Protection Agency of national pollution discharge elimination systems; approval by the Department of the Interior of uranium and reclamation plans and approval by the same department of prospecting permits leases and rights-of-way; studies by the Department of Energy concerning yellowcake production; and delegation by the Nuclear Energy Regulatory Commission to the State of New Mexico of the power to license various yellowcake production facilities.
The number and variety of these actions appears impressive at first blush, but much less so on closer examination. In the first place, many of plaintiffs' listings are overstated both with respect to the quantity and the quality of the actions.
Beyond that, these actions must be considered in the context of both space and time.
The area involved is larger than the State of West Virginia; the period involved thus far is nine years, and if the projections with respect to the various proposed actions are taken into account, it will amount to almost thirty years. These two facts alone raise a question whether all of them can be regarded as so related that they are cumulative or synergistic within the meaning of Kleppe. Widely scattered actions by six different federal agencies with different statutory programs and purposes taken or planned during a thirty-year span, without any conscious over-all planning, do not necessarily have that character. The Supreme Court emphasized that NEPA "may require a comprehensive impact statement in certain situations where several proposed actions are pending At the same time " (427 U.S. at 409, 96 S. Ct. at 2730) and that "when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region Are pending concurrently before an agency, their environmental consequences must be considered together" (427 U.S. at 410, 96 S. Ct. at 2730) (emphasis added). At a minimum, many more facts must be known before a confident answer can be supplied on the question of whether this is a situation calling for "comprehensive consideration of pending proposals" that are so " "related' as to require their analysis in a single comprehensive impact statement" (427 U.S. at 410, 96 S. Ct. at 2730).
It is presumably for that reason, among others, that the Court stated in Kleppe that the determination of a region, if any, with respect to which a comprehensive treatment of environmental impacts is necessary, requires (427 U.S. at 412-14, 96 S. Ct. at 2731, 2732):
. . . a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies . . . (and that the) determination of the extent and effect of these factors, and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.
The basis for that conclusion is obvious. Again, as the Court explained (427 U.S. at 401-2, 96 S. Ct. at 2726-2727):
In the absence of a proposal for a regional plan of development, there is nothing that could be the subject of the analysis envisioned by the statute for an impact statement. Section 102(2)(C) requires that an impact statement contain, in essence a detailed statement of the expected adverse environmental consequences of an action, the resource commitments involved in it, and the alternatives to it. Absent an overall plan for regional development, it is impossible to predict the level of coal-related activity that will occur in the region identified by respondents, and thus impossible to analyze the environmental consequences and the resources commitments involved in, and the alternatives to, such activity. A regional plan would define fairly precisely the scope and limits of the proposed development of the region. Where no such plan exists, any attempt to produce an impact statement would be little more than a study along the lines of . . . (an Interior Department study of coal mining activities in the region), containing estimates of potential development and attendant environmental . . . impact statement of the type envisioned by NEPA (footnotes omitted).
The present case illustrates the soundness of that reasoning. Plaintiffs argue that cumulative impacts from uranium mining occur in the "San Juan Basin" region, as they define it (Memorandum, p. 2 n. 2), but they also describe a number of different geographic territories in which impacts are allegedly felt cumulatively. Thus, it is suggested that the appropriate region for measuring cumulative effects would be (1) the San Juan Basin as a whole (see, E. g., Memorandum, pp. 39-42); (2) the "Grants Uranium Belt" (Id. at 13, 23, 29); (3) "northwestern New Mexico" (Id. at 14); (4) the Westwater Canyon Aquifer (Id. at 24-25, 40-41); (5) the town of Crownpoint (Id. at 24-26); (6) New Mexico as a whole (Id. at 33); and (7) Indian Tribal lands (Id. at 43-46). These territories are by no means congruent.