The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.

In a 2-1 decision, the Ninth Circuit panel found that the range of alternatives in the environmental impact statement was too limited because the Bureau of Land Management (BLM) adopted the developer's goals for the project as the government's own. The court also said the analysis of eutrophication – in this case, the introduction of nitrogen to the desert environment – was scattered in too many parts of the EIS for a reader to follow.

The court further ruled the BLM should have considered the federal land's value as a landfill. The BLM's appraisal ignored the possibility that the 3,481 acres of federal land sought by the landfill developer would be used for the project.

The decision is an important one not only for the long-proposed Eagle Mountain landfill, but for scores of solar and wind energy projects proposed for federally owned land in the desert. The decision suggests the federal government needs to consider the value of land for its ultimate use when selling or swapping parcels with a private entity, which could increase land prices dramatically.

In a remarkably sharp dissent, Judge Stephen Trott called the majority opinion "indefensible" and "flatly wrong." He said the two-judge majority ignored the 50,000-page administrative record and elevated process over function.

From 1948 until 1983, Kaiser mined iron ore from about 5,000 acres of Eagle Mountain in eastern Riverside County, about one mile from what has since become Joshua Tree National Park. With the mine played out, Kaiser in 1989 applied to Riverside County for permits to fill the massive mining pits with garbage. Proponents said the landfill could accommodate 20,000 tons of trash daily for more than 100 years – enough capacity to serve Los Angeles, San Bernardino, Riverside, Orange, San Diego, Ventura and Santa Barbara counties. About 90% of waste would arrive by train.

After Riverside County approved the project, opponents sued over the environmental impact report. They won their case over the first EIR in 1996, but the Fourth District Court of Appeal upheld a revised EIR in 1999 in National Parks & Conservation Assn. v. County of Riverside, (1999) 71 Cal.App.4th 1341 (see CP&DR, Legal Digest, June 1999).

The opponents turned to federal court later in 1999. Based on the National Environmental Policy Act (NEPA), they challenged the EIS for the project. They also contested the BLM's appraisal of 3,481 acres of federal land sought by Kaiser. Kaiser needs the federal land to make the project practical, and federal officials said the swap for 2,846 acres of private land, plus a $20,100 difference, would allow them to better manage habitat for sensitive plant and animal species.

About five years later, District Court Judge Robert Timlin ruled for the opponents on some issues and against them on others. Both sides appealed, and another five years later – including nearly two full years after oral arguments – the divided Ninth Circuit panel mostly upheld Timlin's decision.

On the NEPA claims, the court found that the range of project alternatives studied in the EIS was inadequate because the BLM's stated purpose for the land swap was based on Kaiser's desires. The BLM's purpose and needs statement listed as goals: (1) development of a solid waste landfill, (2) creation of a long-term income source, (3) finding a viable use for mine byproducts, and (4) development of the former mine's town site.

"The first, to meet long-term landfill demand, is unquestionably a valid BLM purpose. The remaining three goals, however, can hardly be characterized as BLM needs," Judge Harry Pregerson wrote for the majority. As a result, five of the six analyzed project alternatives – all except for "no action" – resulted in some measure of landfill development. "The BLM adopted Kaiser's interests as its own to craft a purpose and need statement so narrowly drawn as to foreordain approval of the land exchange," wrote Pregerson, who was joined by Judge Richard Paez.

On the issue of eutrophication, the court rejected the BLM's argument that the EIS adequately dealt with impacts of bringing nitrogen to the desert environment in sections addressing biological resources and air quality. "A reader seeking enlightenment on the issue would have to cull through entirely unrelated sections of the EIS and then put the pieces together," Pregerson complained.

The Ninth Circuit did overturn Judge Timlin on the issue of bighorn sheep, finding that the EIS "contains extensive analysis of potential impacts on bighorn sheep, including migration patterns, habitat loss and water accessibility." The court also rejected opponents' appeals regarding analysis over impacts to desert tortoises, noise levels, night lighting, groundwater, air quality and visual aesthetics.

In its appraisal, the BLM valued the public parcels that Kaiser would acquire at $77 to $106 per acre, and determined that the private land the BLM would receive was worth $104 per acre. The difference was $20,100. The appraisal determined that the "highest and best use" for the public parcels in question was "holding for speculative investment." The appraisal ignored the landfill proposal because the appraiser considered the project infeasible.

The court noted that the landfill provided the basis for the land swap and that Los Angeles County Sanitation District has since agreed to pay Kaiser $8,800 per acre for the project site and permits.   The court, noted Pregerson, faced similar facts when it rejected the BLM's appraisal of federal land for a proposed Imperial County landfill. In Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Circuit 2000) (see CP&DR Legal Digest, December 2000), the court ruled, "The use of the land as a landfill was not only reasonable, it was the specific intent of the exchange that it would be used for that purpose. There is no principled reason why the BLM, or any federal agency, should remain willfully blind to the value of federal lands by acting contrary to the most elementary principles of real estate transactions."

In a dissent far longer than Pregerson's majority opinion, Trott decried the process and lengthy litigation. It took the District Court five years to issue a ruling and, Trott wrote, "[H]ere we are at the end of 2009, another five years later, burdened by a seriously flawed District Court opinion, hitting the reset button, and unnecessarily sending the parties back to a Sisyphean hill which cannot be climbed in a lifetime."

Trott continued, "Now, in an opinion that is not only not supported by the record, but is irreconcilable with it, the endless process continues. No doubt we will see this case back again, years from now, unless the proponents of this project – including seven California counties – weary of it and throw in the towel, thwarted and defeated not by substance but by interminable process."

Unless an en banc panel of the Ninth Circuit agrees to rehear the case, it now returns to District Court for further proceedings.

The Case:
National Parks & Conservation Association v. Bureau of Land Management, No. 05-56814, 2009 DJDAR 15950. Filed November 10, 2009.
The Lawyers:
For National Parks and Conservation Association: Deborah Sivas, Stanford Environmental Law Clinic, (650) 723-0325.
For the BLM: Tamara Rountree, Department of Justice (202) 514-2000.
For Kaiser: Leonard Feldman, Stoel Rives, (206) 386-7538.