Plaintiff's Response to Defendant's Motion for Summary Judgment (Plaintiff's Response) at 9. Similarly, the regulation from which the grant's language is drawn, 25 C.F.R. § 169, provides that rights-of-way " may be terminated" (emphasis added).
The IBIA agreed with Star Lake that the regulation's conditional language "allows for the exercise of some discretion." 15 IBIA at 236. "However," the Board continued, "that discretion is subject to limitation by Federal, statutory and case law and, in this case, also by the provisions of the grant of easement and the agreement incorporated therein," to the extent they do not conflict with federal law. Id. at 236-37. In this case the Director complied with the grant and the applicable law, and Star Lake failed to fulfill the requirements that would have prevented termination or to make timely efforts to secure extensions of time which, if granted, might have permitted the fulfillment of those requirements.
Star Lake insists that the "plain purpose" of the regulation is "to afford a right-of-way grantee an opportunity to explain the reason for its non-use, so that the Secretary may exercise his discretion" to excuse the grantee from the grant's conditions. Plaintiff's Response at 10. But as the Director, and then the IBIA, pointed out, the regulation recites that once a grantee has been notified and fails to correct a problem that is the basis for termination, the Secretary " shall " terminate the right-of-way. Nowhere, either on the face of the regulation, or even implied, is there room for excuse or tolling. The IBIA did not abuse its discretion by accepting this completely reasonable reading by the Navajo Area BIA of a regulation it administers.
Moreover, this interpretation does not conflict with federal statutes, policies, or case law. The IBIA thoroughly considered related statutes that do provide for discretion and that excuse conditions of easements and other grants of public lands. See 15 IBIA at 237-39. Given the difference between those statutes and the statute and regulations at issue here -- the former specifically provide for such exceptions,
while the Indian Right of Way Act does not -- the IBIA properly declined to read similar exceptions into plaintiff's grant of easement.
The IBIA, as required, carefully considered "relevant factors," Overton Park, 401 U.S. at 416, including the weighty rule that statutes and regulations intended to benefit Indians be liberally construed in their favor. Bryan v. Itasca County, 426 U.S. 373, 392, 48 L. Ed. 2d 710, 96 S. Ct. 2102 (1976); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1332 (10th Cir. 1982).
The IBIA's interpretation of the regulation, and hence the Secretary's affirmance thereof, is not unreasonable and must be affirmed.
2. Denial of Star Lake's Request for an Adjudicatory Hearing.
Star Lake asserts that the Board abused its discretion by denying Star Lake's request for an adjudicatory hearing. The Board's conclusion, that no adjudicatory hearing was required because the matter was disposed of entirely by resolution of the legal question, also deserves this Court's deference.
Star Lake argues that it must have an adjudicatory hearing to determine whether the Indians, either collectively (as the Tribe) or individually, deliberately impeded Star Lake's use of the right-of-way during the two-year period by various court and administrative challenges. With this allegation Star Lake is attempting to invoke equitable tolling of the two-year limitation by coming under the rule of Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982). In that case, the Court of Appeals for the Tenth Circuit upheld the tolling of the terms of certain oil and gas leases from the Apache Tribe because the Tribe, by suing the lessees, had obstructed the lessees' efforts to perform under the leases. Star Lake asks for the opportunity to develop evidence that the Tribe covertly acted much in the same way to frustrate its efforts to obtain the approvals needed to begin using the easement. And, if such evidence were found, it contends, Star Lake would be entitled to similar equitable tolling under Jicarilla.
The only support of Star Lake's allegation of wrongful obstruction by the Tribe is that the attorney representing the Navajo Tribe in the instant dispute formerly represented the individual Navajos involved in the ICC challenge. Nothing in the record, the Board noted, indicates that "the tribe took any action to impede appellants use of the right-of-way during the first 2 years of its existence." 15 IBIA at 247. It was therefore reasonable for the Board to conclude that no genuine issue was presented and that the only proffers of evidence were speculative at best.
Furthermore, Star Lake has provided no explanation as to why it did not request, as frequently as necessary, an appropriate extension of time while the litigation progressed and the time continued to evaporate. Even more puzzling is that Star Lake did not request that the non-use provision be tolled until the two-year period of non-use had passed. This fact alone distinguishes Jicarilla from the facts in this case.
The IBIA's findings, more than adequately supported by the law, will not be disturbed. See, e.g., General Motors Corp. v. FERC, 211 U.S. App. D.C. 202, 656 F.2d 791, 798 n. 20 (D.C.Cir. 1981). "The standard of review which applies to an agency's decision to forego an evidentiary hearing in the absence of a disputed factual issue is quite narrow." Cerro Wire & Cable Co. v. FERC, 219 U.S. App. D.C. 273, 677 F.2d 124, 129 (D.C.Cir. 1982). No evidentiary hearing is required when there is no issue of material fact in dispute. Id. at 128-29. "Mere allegations of disputed facts are insufficient to mandate a hearing; petitioners must make an adequate proffer of evidence to support them." Id. at 129. In the instant case, the IBIA did not find adequate evidence; we do not disagree.
Deference is also mandated with regard to this issue because Department of Interior regulations make the decision whether to hold an evidentiary hearing entirely discretionary with the Board: "where the record indicates a need for further inquiry to resolve a genuine issue of material fact, the Board may require a hearing." 43 C.F.R. § 4.337 (1987) (emphasis added). This is an area committed to the Board's sound discretion and the IBIA has presented reasoned findings to support its discretion. The IBIA's conclusion on this issue is eminently appropriate and this Court will uphold that determination.
3. Star Lake's NEPA claim.
Star Lake's final argument is that the Area Director's decision should be overturned because it violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370b (1982). This claim lacks merit.
Star Lake bases its argument on the fact that the BLM prepared a comprehensive environmental impact statement (EIS) as required by NEPA, see 42 U.S.C. § 4332, on the proposed railroad and coal development in the San Juan Basin. The route via the right-of-way was found in that EIS to be the most cost-effective and least environmentally damaging. Star Lake contends that terminating the right-of-way will therefore require it "to use a longer, more environmentally damaging alternative route." Plaintiff's Response at 22. Accordingly, Star Lake claims that the termination constitutes a major federal action under NEPA, requiring the preparation of a new EIS.
There is some dispute as to whether this argument was raised at the administrative level. According to the defendant, plaintiff only raised this question at the administrative level in its reply brief before the IBIA, at the last moment in the last administrative proceeding. The Board's decision does not discuss it. If indeed the claim was not presented to the agency in the first instance, it cannot be pressed on this Court. Washington Association for Television & Children v. FCC, 229 U.S. App. D.C. 363, 712 F.2d 677, 680 (D.C.Cir. 1983).
Assuming, however, that this claim is properly before the Court, it nonetheless cannot be considered here because it is not ripe. An EIS is required only when there is a proposal for a major federal action. 42 U.S.C. § 4332. No such federal action has yet been proposed; a route other than through the tribal lands may be more environmentally damaging, but no route has yet been designated or even suggested. See Kleppe v. Sierra Club, 427 U.S. 390, 399, 406, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976). Accordingly, plaintiff's NEPA claim is dismissed.
It is the hallmark of judicial review of agency action that the petitioner has the heavy burden of persuading the reviewing court to discard its deferential approach. To do so, it must demonstrate that the agency's action reflects a clear error of judgment. Plaintiff Star Lake, while it may be aggrieved by the IBIA decision, has failed to do so.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment and defendant-intervenor's motion to affirm agency action be and hereby are granted; it is
FURTHER ORDERED that plaintiff's motion for summary judgment be and hereby is denied; it is
FURTHER ORDERED that all other pending motions in this case be and hereby are dismissed as moot; it is
FURTHER ORDERED that this case is dismissed. A judgment accompanies this memorandum opinion.
IT IS SO ORDERED.
February 27, 1990.
For the reasons set forth in the accompanying Memorandum Opinion issued this date, judgment is hereby entered in favor of defendant Manuel Lujan and against plaintiff Star Lake Railroad.
IT IS SO ORDERED.
February 27, 1990.