Posted by: Steven M. Taber | November 11, 2009

Kaiser’s Eagle Mountain Landfill Land Swap Goes Back to BLM, 9th Circuit Decides

The U.S. Court of Appeals for the Ninth Circuit issued its 2-1 opinion regarding the Environmental Impact Statement (EIS) for the Eagle Mountain Landfill Project and the associated federal land exchange. Although the court rejected most of the project opponents’ arguments, it ultimately affirmed the U.S. District Court’s ruling that the land exchange was not properly approved by the administrative agency, in this case the Bureau of Land Management. The third judge on the panel issued a 50-page dissent which is very critical of the majority’s opinion. The dissent argues that Kaiser, Mine Reclamation and the U.S. Bureau of Land Management fully complied with applicable law and that the completed land exchange should remain in effect.

The majority of agreed with the District Court on three issues:

  1. that the BLM failed to adequately consider how eutrophication (the introduction of nutrients) was not adequately organized in the EIS;
  2. that the statement of “purpose and need” (required under NEPA) for the project was unduly narrow, which resulted in the BLM narrowing the required range of alternatives to the proposed land exchange in violation of NEPA; and
  3. that the BLM’s appraisal of the lands in the land exchange was inadequate, due to the agency’s failure to take into account in the “highest and best use” analysis versus the probable use of the public lands as a landfill.

The majority did reverse the District Court’s finding that the BLM failed to adequately address impacts to bighorn sheep posed by the proposed land fill.

The EIS does, however, contain the information the district court believed was missing.  The EIS includes a 56-page report on Bighorn sheep. The report is based on an extensive monitoring study, utilizing sheep capture, radio telemetry, and genetic testing methods. The EIS states that any installed tortoise-proof fencing will be designed to allow for sheep movement. The EIS explains that the buffer zone constituting “644 acres of potential habitat would remain as natural open space around the periphery of the proposed landfill. This habitat would provide a buffer zone between the landfill operation and relocated sheep population.”  Though the EIS does not “exactly specify” what the buffer zone entails, it does contain a “reasonably complete” discussion of this mitigation measure.

Judge Trott strongly dissents with the panel majority’s opinion.  Judge Trott begins his 50-page dissent by stating: “What sane person would want to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting – if not impossible – such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo [which, incidentally, was Jason and the Argonauts’ ship, not Ulysses’], but nothing that compares to the ‘due process’ of unchecked environmental law.” He concludes that the obstacles faced by Ulysses to get home cannot “measure up to the obstacles Kaiser has faced in this endeavor.”  After exhausting himself with the minutiae of the case, Judge Trott concludes his diatribe with the following warning:

I end with the Technical Advisory Panel’s evaluation: “the proposed Eagle Mountain Landfill could well become one of
the world’s safest landfills and a model for others to emulate.” Don’t hold your breath.

Kaiser issued a press release from Rick Stoddard, Kaiser’s Chairman and Chief Executive, stating Kaiser’s “steadfast belief continues to be that the Eagle Mountain landfill’s environmental analysis was more than adequate and that the proper legal procedures were followed in completing the land exchange. We are gratified that this was recognized by Judge Trott in his dissenting opinion.”

The Eagle Mountain landfill project is located in the remote eastern Riverside County desert and is proposed to accept up to 20,000 tons of non-hazardous solid waste per day for 50 years.

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