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March 31, 1999


The opinion of the court was delivered by: Sullivan, District Judge.


In the waning hours of the Bush Administration, outgoing Secretary of the Interior Manuel Lujan Jr. ("Lujan") issued a Record of Decision ("ROD") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq. announcing his decision to approve the direct sale of 1,000 acres of federal land under the Federal Land and Policy Management Act ("FLPMA"), 43 U.S.C. § 1713, 1719(b), to the State of California for potential use as a low-level radioactive waste ("LLRW") facility. Earlier that day, January 19, 1993, a United States District Judge in the Northern District of California had orally extended a Temporary Restraining Order further enjoining Secretary Lujan from, inter alia, taking any action in connection with the transfer of this land. Secretary Lujan's 11th-hour decision was his final step in a protracted administrative process regarding this highly controversial issue.

Weeks before making his land-transfer decision, Secretary Lujan had notified some of the multitude of interested parties that the transfer could not be accomplished before the change in Administrations. Then two weeks before the end of the Bush Administration, and two days after receiving a request from then-Governor Pete Wilson ("Wilson") of California to complete the land transfer, Secretary Lujan abruptly changed position, and took certain actions in an attempt to complete the transfer. A month after Secretary Lujan issued his ROD, President Clinton's Secretary of the Interior, Bruce Babbitt, ("Babbitt") rescinded it.

Plaintiffs California Department of Health Services and its Director, Kimberly Belshé (collectively, "CDHS") and U.S. Ecology, Inc., bring this action against Secretary Babbitt, the Department of the Interior ("DOI"), the Bureau of Land Management ("BLM"), and John Garamendi, Deputy Secretary of the Interior. Relying on the Mandamus Act, 28 U.S.C. § 1361, plaintiffs ask this Court to compel defendants to convey the land, located in the Ward Valley of California, to be used as a nuclear dump. Plaintiffs also allege that Secretary Babbitt violated the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"), when he rescinded Secretary Lujan's ROD.

Intervenor-Defendants, Committee to Bridge the Gap, the Bay Nuclear Waste Coalition, Ward Young, and Ernest Goitein, oppose the sale of the Ward Valley land alleging that the government has not complied with certain environmental statutes.

Defendants and intervenor-defendants have moved for summary judgment on all of plaintiffs' claims. Plaintiffs CDHS and U.S. Ecology seek partial summary judgment on their claim that they are entitled to mandamus relief. U.S. Ecology also seeks summary judgment on its claim that Secretary Babbitt's actions in rescinding Secretary Lujan's ROD was arbitrary and capricious. The Court has considered the parties submissions as well as the briefs filed by numerous groups as amicus curiae,*fn1 and for the following reasons, the Court will grant defendants' motion for summary judgment, grant the intervenor's motion for summary judgment, and deny plaintiffs' motions for partial summary judgment.


In 1987, California, Arizona, North Dakota and South Dakota entered into the Southwestern Low-Level Radioactive Waste Disposal Compact, to establish a regional disposal site for LLRW, pursuant to the Low-Level Radioactive Waste Policy Act Amendments of 1985, 42 U.S.C. § 2021(b)-(j) (1994).*fn2 Under California law, the CDHS is the agency responsible for managing the disposal of LLRW, consistent with the Interstate Compact. U.S. Ecology, Inc. was chosen as the license-designee to develop the LLRW facility under CDHS's oversight and was granted the license for the facility in September 1993. U.S. Ecology is therefore responsible for building and operating the facility, and for collecting fees from the eventual users of the facility.

California, as the initial host state under the compact, proposed to use the 1,000-acre parcel in the State's Ward Valley as the site of the LLRW facility. This parcel is presently owned by the federal government, and managed by BLM. To acquire this land, the California State Lands Commission ("SLC") submitted to BLM a series of school land indemnity applications beginning in 1987, under 43 U.S.C. § 851, seeking to acquire the Ward Valley site.*fn3 Based on this application, BLM and CDHS issued a joint Environmental Impact Statement/Environmental Impact Report ("EIS/EIR") in April 1991 assessing the environmental impacts of, and alternatives to, using the proposed Ward Valley site as a LLRW facility, as required under NEPA and California law.*fn4 This 500-page report concluded that the Ward Valley site was the preferred location for the facility, and that locating the facility there would result in no significant adverse environmental impacts. Under California law, CDHS is required to certify the adequacy of the final EIR. Even though the EIS/EIR had been issued, BLM did not issue an ROD based upon the EIS/EIR because CDHS did not certify the adequacy of the EIR.

Then in July 1991, SLC requested that BLM suspend processing its pending indemnity selection application. One year later, on July 13, 1992, CDHS requested that BLM sell the Ward Valley site directly to the State, pursuant to FLPMA, rather than through indemnity selection. But on September 17, 1992, SLC filed a revised indemnity selection application for the land, initiating a new two-year segregation period. In response to CHDS's request that the land be sold under FLPMA rather than through the indemnity selection process, ELM took two actions: On September 21, 1992, BLM published a Notice of Realty Action ("NORA"), initiating the 45-day comment period regarding the direct sale under 43 C.F.R. § 2711.1-2. BLM received approximately 200 comments opposing the direct sale. In addition, ELM published a notice of intent to commission a Supplemental EIS ("SEIS") to study whether adverse environmental consequences would result from transferring the Ward Valley site by direct sale rather than indemnity selection. On November 12, 1992, the draft SEIS was made public for comment, and the comment period remained open until December 28, 1992. Two days after the close of the public comment period on the draft SEIS, BLM issued a final SEIS finding that the change in method of sale, from indemnity selection to direct sale, would have no adverse environmental consequences.

The next day, on December 31, 1992, CDHS asked BLM to delay completion of the NEPA process, by postponing the release of the final SEIS, to enable CDHS to provide a more comprehensive response to the public comments on the draft SEIS. See Defs.' Ex. 25 (Ltr. from Ron Joseph, Chief Deputy Director, CDHS, to Ed Hastey, Regional Manager, BLM, of 12/31/92). Nevertheless, on that same day, BLM filed its final version of the SEIS, pursuant to 40 C.F.R. § 1506.9, triggering the 30 day comment period required by 40 C.F.R. § 150G.10(b).

As late as December 1992, Secretary Lujan and BLM continued to advise the public that DOI would not be able to issue a patent for the land to the State of California prior to the end of the Bush Administration. In a December 1992 letter to the Governor of North Dakota, Secretary Lujan wrote:

    [W]ithin the time remaining in this Administration and with
  our commitment to carrying out all legal and required steps,
  including National Environmental Policy Act compliance, I am
  sorry to inform you that we will not be able to issue [a]
  patent to the State of California.
    We may be able to clear up some of the preliminary
  administrative actions necessary, but, unfortunately, we must
  leave this unfinished job to the next administration to
  complete the land transfer to the State of California.

Int.Ex. T (Ltr. from Sec'y Lujan to the Gov. of N.D., undated in record). BLM indicated that the patent would not be issued because of BLM's "commitment to carry out all legal and required steps, including [NEPA] compliance." Int.Ex. S (Ltr. from Ray Brady, Chief, Division of Lands, to Terry Grimmer, Environmental Manager, Berlex Biosciences, 12/31/92).

Two days later, on January 7, 1993, Secretary Lujan notified BLM that the SEIS was in fact an EA, that the comments regarding the SEIS had already been adequately addressed, and that he was contemporaneously issuing a FONSI. See Defs.' Ex. 29. In addition, Secretary Lujan advised BLM that he had instructed the Board of Land Appeals to issue decisions on the pending appeals by the next day, January 8, 1993.*fn5 See id. Secretary Lujan also listed the actions he planned to take contingent on those appeals being resolved in Interior's favor: He stated that he planned to issue a ROD approving the direct sale, dismiss the comments received in response to the NORA, return SLC's pending indemnity application, and issue the patent with certain conditions. A press release that same day publicized this announcement. Although under Secretary Lujan's decision, the State of California would receive the patent to the land, U.S. Ecology wired $500,000 to the U.S. Treasury to pay for the 1,000 acre Ward Valley site the next day. This money was later returned to U.S. Ecology.

Lujan's actions spawned three lawsuits in California. On January 8, 1993, a group of environmental associations and individuals concerned about the environmental implications of the proposed sale filed an action in the Northern District of California seeking declaratory and injunctive relief. See Desert Tortoise v. Lujan, No. 93-0114 (N.D.Cal., Jan. 8, 1993). In their complaint, plaintiffs alleged, in part, that Secretary Lujan violated the Endangered Species Act ("ESA") 16 U.S.C. § 1531 et seq., by failing to designate a critical habitat for the desert tortoise, a threatened species. Plaintiffs moved for a temporary restraining order and preliminary injunction to enjoin the commitment of "any further resources towards the completion of the proposed Radioactive Waste Facility" until the underlying ESA issues were resolved. Desert Tortoise Compl. at ¶ 33. United States District Judge Marilyn Patel granted the plaintiffs' request for a temporary restraining order that same day, January 8, enjoined the Secretary from "transferring any Ward Valley land" and scheduled a hearing for January 19, 1993 on the motion for a preliminary injunction.

On January 19, 1993, a series of events transpired. First, in the morning, Judge Patel held a hearing in the Desert Tortoise case and orally extended the TRO, which was set to expire on that date. At that hearing, the Assistant United States Attorney ("AUSA") on the case stated that since the TRO restrained Secretary Lujan from transferring title to the land to the State, the Secretary had not signed the patent. Defs.' Ex. 34 (Desert Tortoise v. Lujan, No. C-93-0114, Tr.Hr'g. January 19, 1993, at 16). The AUSA stated that signing the patent "in and of itself would not have resulted in a transfer of title." Id. The AUSA further stated that depending upon Judge Patel's ruling, "the Secretary would like to sign the patent, but not transfer title to the state." The AUSA stated that depending upon Judge Patel's ruling, "[t]he Secretary would also propose to sign the Record of Decision, which would be a further step towards accomplishing this transfer. All of these steps were-were not taken on advice that this might be a violation of the spirit of the Court's temporary restraining order." Id. at 17.

Second, sometime after the hearing before Judge Patel, Secretary Lujan issued the ROD stating his approval of the direct sale and his intention to convey the land by direct sale. In the ROD, Secretary Lujan stated that the Ward Valley sale complied with the NEPA and ESA, and concluded that the conditions for direct sale pursuant to the FLPMA had been met. Secretary Lujan did not, however, issue the patent, nor is there any indication in the record before the Court that he took any actions during his final moments in office to effectuate his decision under FLPMA regulations.

Third, at 6:25 p.m. California time, Judge Patel's written order was filed in the Desert Tortoise case, extending the TRO and enjoining DOI from "executing any document or taking any other action, including but not limited to signing any patent, in connection with any transfer of any land in Ward Valley, California, to the State of California." See Defs.' Ex. 35 (Order Extending Temporary Restraining Order, at 2).

Also on January 19, 1993, a group of plaintiffs consisting of an environmental group, a municipality, then-State Controller Gray Davis, in his official capacity, and individuals who derive enjoyment from the Ward Valley site, commenced Committee to Bridge the Gap, et al. v. Lujan, Case No. 93-196 (N.D.Cal.).*fn6 Plaintiffs alleged, in part, that Secretary Lujan (1) failed to fully consider the supplemented EIR/EIS and comments submitted during the comment period, in violation of the NEPA, and (2) failed to establish that the proposed transfer is in the public interest, in violation of the FLPMA. Plaintiffs sought to enjoin defendants from issuing a ROD until defendants had complied with the law. Days later, on January 27, 1993, seven environmental associations commenced National Resources Defense Council v. Babbitt, No. 93-0301 (N.D.Cal.), the third action concerning the proposed sale and development of the Ward Valley site. Plaintiffs in that case advanced substantially the same claims as plaintiffs in Desert Tortoise.

On February 18, 1993, newly-appointed Secretary Bruce Babbitt entered into a stipulated settlement in Desert Tortoise and rescinded the ROD issued by former Secretary Lujan. Secretary Babbitt's rescission of that decision, announced in a ...

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