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Reed v. Salazar

September 28, 2009

NATHANIEL P. REED, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR, ET AL. DEFENDANTS,
CONFEDERATED SALISH & KOOTENAI TRIBES, INTERVENOR-DEFENDANT.
BLUE GOOSE ALLIANCE, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS,
CONFEDERATED SALISH & KOOTENAI TRIBES, INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

The above-captioned cases involve a challenge to an annual funding agreement entered into between the U.S. Department of Interior Fish & Wildlife Service ("FWS") and the Confederated Salish & Kootenai Tribes of the Flathead Reservation (the "CSKT") for the operation and management of the National Bison Range Complex, a part of the National Wildlife Refuge System. In the first action, Plaintiffs Nathaniel P. Reed, David S. Wiseman, Jon Malcolm, Marvin R. Kaschke, Joseph P. Mazzoni, Marvin L. Plenert, Robert C. Fields, Florence M. Lariveriere, Delbert Dee Palmer, and Public Employees for Environmental Responsibility (collectively, the "Reed Plaintiffs") contend that the annual funding agreement violates the National Wildlife Refuge System Administration Act of 1966, as amended (the "Refuge Act"), 16 U.S.C. §§ 668dd-668ee; the Indian Self-Determination and Education Assistance Act ("ISDEAA"), 25 U.S.C. §§ 450 et seq., as amended by the Tribal Self-Governance Act of 1994, 25 U.S.C. §§ 458aa-hh; the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; and the Intergovernmental Personnel Act ("IPA"), 5 U.S.C. §§ 3371-76. The Reed Plaintiffs also contend that Defendants Ken Salazar and Rowan W. Gould, sued in their official capacities as Secretary of the Interior and Acting Director of FWS, respectively (collectively, "Defendants") violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., by failing to prepare an environmental impact statement or other documents required by NEPA prior to entering an agreement with the CSKT. In the second action, Plaintiffs Blue Goose Alliance, Don Redfearn, Evelyn Redfearn, William C. Reffalt, and Christine Enright-Reffalt (collectively, the "Blue Goose Plaintiffs") also contend that the funding agreement with the CSKT violates the Refuge Act, the ISDEAA, and the FOIA. The Blue Goose Plaintiffs also contend that Defendants failed to comply with NEPA and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44. Plaintiffs in both actions (collectively, "Plaintiffs") seek a rescission of the funding agreement. The Court granted the CSKT's motion to intervene as a defendant in these actions.

Presently pending before the Court are cross-motions for summary judgment that have been filed by the Plaintiffs, Defendants, and the CSKT as Intervenor-Defendant. For the reasons explained below, the Court finds that Defendants failed to comply with their obligations under NEPA before entering into the annual funding agreement with the CSKT to manage the NBRC. Accordingly, the Court shall grant Plaintiffs' motions for summary judgment with respect to their NEPA claims, deny Defendants' and Intervenor-Defendant's motions for summary judgment with respect to NEPA claims, and order that the annual funding agreement be set aside. In light of this disposition of the Plaintiffs' NEPA claims, the Court shall deny without prejudice the parties' motions for summary judgment with respect to their other claims.

I. BACKGROUND

A. Statutory Background

1. The National Wildlife Refuge System Administration Act

Originally enacted in 1966, the National Wildlife Refuge System Administration Act ("Refuge Act") sets forth the guiding principles and policies for the administration and management of the National Wildlife Refuge System ("NWRS"). The Refuge Act designates the NWRS as all lands, waters, and interests managed by the Secretary of the Interior "for the conservation of fish and wildlife, including species that are threatened with extinction." 16 U.S.C. § 668dd(a)(1). As amended in 1976, the Refuge Act states that the NWRS "shall be administered by the Secretary [of the Interior] through the United States Fish and Wildlife Service." Id.; see Pub. L. No. 94-223, 90 Stat. 199 (1976). Congress further amended the Refuge Act in 1997, clarifying that "[t]he mission of the System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." National Wildlife Refuge System Improvement Act of 1997 § 4, 16 U.S.C. § 668dd(a)(2). The Refuge Act states that "each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established." 16 U.S.C. § 668dd(a)(3)(A).

2. The Indian Self-Determination Education & Assistance Act

Originally enacted in 1975, the Indian Self-Determination and Education Assistance Act ("ISDEAA") was intended to assure "maximum Indian participation in the direction of educational as well as other Federal services to Indian communities . . . ." 25 U.S.C. § 450a(a), Pub. L. No. 93-638, 88 Stat. 2203 (1975). The Act authorizes the Secretary of the Interior to enter into contracts with Indian tribes to have them perform programs, functions, services, or activities, including administrative functions, that would otherwise be performed by DOI for the benefit of Indians. 25 U.S.C. § 450f(a)(1). In 1994, Congress passed the Tribal Self-Governance Act, which amended the ISDEAA and authorized the Secretary to enter into annual funding agreements to transfer control of programs, services, functions, and activities that are of special geographic, historical, or cultural significance to the participating tribe. 25 U.S.C. § 458cc(c), Pub. L. No. 103-413 § 204, 108 Stat. 4250, 4272 (1994). As amended, the ISDEAA contains the following disclaimer:

Nothing in this section [25 U.S.C. § 458cc] is intended or shall be construed to expand or alter existing statutory authorities in the Secretary so as to authorize the Secretary to enter into any agreement under subsection (b)(2) of this section and section 458ee(c)(1) of this title with respect to functions that are inherently Federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe: Provided, however an Indian tribe or tribes need not be identified in the authorizing statute in order for a program or element of a program to be included in a compact under subsection (b)(2) of this section.

25 U.S.C. § 458cc(k). The ISDEAA regulations also clarify that this section excludes "inherently Federal functions" from the scope of permissible programs in an annual funding agreement. See 25 C.F.R. § 1000.129.

3. The National Environmental Policy Act

The National Environmental Policy Act is the "basic national charter for protection of the environment," 40 C.F.R. § 1500.1(a), and it requires federal agencies to take a "hard look" at the environmental consequences of their projects before taking action. 42 U.S.C. § 4332(C); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989). NEPA "requires that agencies assess the environmental consequences of federal projects by following certain procedures during the decision-making process." City of Alexandria v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999).

NEPA has twin aims. "First, it 'places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.'" Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)). "Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. Accordingly, NEPA's mandate "is essentially procedural." Vermont Yankee, 435 U.S. at 558; N. Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980) (explaining that NEPA requirements are essentially procedural and a court should not substitute its own policy judgment for that of the agency). "NEPA merely prohibits uninformed-rather than unwise-agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

"The major 'action-forcing' provision of NEPA is the requirement that 'all agencies of the Federal government' prepare a detailed environmental analysis for 'major Federal actions significantly affecting the quality of the human environment.'" Found. on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C. Cir. 1985) (quoting 42 U.S.C. § 4332(C); S. Rep. No. 91-296, 91st Cong., 1st Sess. 19 (1969)). This analysis is called an Environmental Impact Statement ("EIS"). See 42 U.S.C. § 4332(C).

An EIS is not required if the agency makes a determination based on a more limited document, an Environmental Assessment ("EA"), that the proposed action would not have a significant impact on the environment. Sierra Club v. Mainella, 459 F. Supp. 2d 76, 81 (D.D.C. 2006) (citing 40 C.F.R. §§ 1501.4, 1508.13). "The EA is to be a 'concise public document' that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].'" Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004) (quoting 40 C.F.R. § 1508.9(a)). "If, pursuant to the EA, an agency determines that an EIS is not required under applicable [regulations issued by the Council on Environmental Quality], it must issue a 'finding of no significant impact' (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment." Id. at 757-58 (citing 40 C.F.R. §§ 1501.4(e), 1508.13).

Of particular significance to the present litigation, an agency need not prepare an EIS or even an EA if it finds that its proposed action is subject to a "categorical exclusion." A "categorical exclusion" is defined as: a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.

40 C.F.R. § 1508.4. The terms within this definition are defined broadly. A "cumulative impact" is defined as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency . . . or person undertakes such other actions." Id. § 1508.7. The term "effects" not only includes direct effects (those "caused by the action and occur at the same time and place"), but also indirect effects (those "caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable"). Id. § 1508.8. Moreover, the type of "effects" that are contemplated by this definition include: ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

Id.

When an agency finds that its proposed action falls within a categorical exclusion, the agency must then determine whether there are any "[e]xtraordinary circumstances" that nevertheless require the agency to perform an environmental evaluation. 40 C.F.R. § 1508.4; 43 C.F.R. § 46.215. Pursuant to regulations promulgated by the Department of the Interior ("DOI"), extraordinary circumstances exist for individual actions within categorical exclusions that may meet any of the following criteria:

(a) Have significant impacts on public health or safety.

(b) Have significant impacts on . . . park, recreation or refuge lands . . . .

(c) Have highly controversial environmental effects or involve unresolved conflicts concerning alternative uses of available resources . . . .

(d) Have highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks.

(e) Establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects.

(f) Have a direct relationship to other actions with individually insignificant but cumulatively significant environmental effects. . . .

(h) Have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or have significant impacts on designated Critical Habitat for these species. . . .

(l) Contribute to the introduction, continued existence, or spread of noxious weeds or non-native invasive species known to occur in the area or actions that may promote the introduction, growth, or expansion of the range of such species . . . . Id. § 46.215.*fn1

Agencies must comply with the procedural requirements of NEPA, and the decision to forego production of an EIS or EA in favor of a categorical exclusion is subject to judicial review under the arbitrary and capricious standard of review. Nat'l Trust for Historic Pres. v. Dole, 828 F.2d 776, 781 (D.C. Cir. ...


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