AMENDED ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT
The motions for summary judgment brought by defendants came on regularly for hearing on January 18, 1994, at 10:30 a.m. in Courtroom 11 of the above-entitled court, the Honorable Irma E. Gonzalez presiding. Scott H. Peters, Deputy County Counsel appeared on behalf of the County of San Diego. Lauren N. Soll of the United States Department of Justice, and Kendall Newman, Assistant United States Attorney, appeared on behalf of the following: Bruce Babbitt, Secretary of the United States Department of the Interior; Eddie Frank Brown, Assistant Secretary of the Interior; Woodrow Hopper, Acting Commissioner of Indian Affairs, U.S. Bureau of Indian Affairs; Patrick Hayes, Director, Office of Trust Responsibilities, United States Bureau of Indian Affairs; Ronald M. Jaeger, United States Bureau of Indian Affairs (the "Federal Defendants"). David L. Mulliken, Joel H. Mack, and Cynthia H. Cwik of the law firm of Latham & Watkins appeared on behalf of the Campo Band of Mission Indians, a sovereign Indian tribal government, and Muht-Hei, Inc., a corporation owned and chartered by the Campo Band of Mission Indians (the "Campo Band Defendants").
In April, 1993, the Secretary of the Interior, Bruce Babbitt, approved the Campo Solid Waste Management Project ("Project"), a tribal economic development project to construct and operate a solid waste disposal facility on tribal trust lands on the Campo Indian Reservation in southeastern San Diego County.
Plaintiff, the County of San Diego ("the County") brought this action for declaratory and injunctive relief alleging that the Environmental Impact Statement ("EIS") prepared by the Federal Defendants does not meet the requirements of the National Environmental Policy Act, 42 U.S.C.A. §§ 4321 et seq. (1977) ("NEPA").
On October 15, 1993, this Court denied the County's Motion for Preliminary Injunction. The Federal Defendants and the Campo Band Defendants now both move for summary judgment. Because their claims overlap, the Court will address their motions simultaneously.
Defendants claim that they are entitled to summary judgment in their favor because the EIS prepared for the Project meets the requirements of NEPA, and the BIA decision approving the Project is sound.
The County vigorously opposes the motion, claiming that the EIS fails to meet the requirements of NEPA by 1) failing to evaluate reasonable alternatives to the Project, 2) failing to evaluate and disclose foreseeable environmental impacts of the Project, and 3) using faulty methodology to reach its conclusion that the Project can be adequately monitored to detect environmental hazards.
I. Standard of Review
A. Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the record shows no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress and Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Id. However, in considering this motion, the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
B. Agency Compliance with NEPA
A district court's review of an agency action is limited. A district court may only set aside agency action that is "arbitrary and capricious, an abuse of discretion, or otherwise not according to the law." Administrative Procedure Act ("APA"), 5 U.S.C.A §§ 706(2)(D), (A) (1982). See also Half Moon Bay Fishermans' Marketing v. Carlucci, 857 F.2d 505, 508 (9th Cir. 1988).
In reviewing the BIA's compliance with NEPA, the court is limited by the fact that NEPA is essentially a procedural statute. Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987). Under NEPA, a federal court may only look to insure that the agency in question has "considered the environmental consequences" of its action. Strycker's Bay Neighborhood council v. Karlen, 444 U.S. 223, 227, 62 L. Ed. 2d 433, 100 S. Ct. 497 (1980). NEPA does not require that an agency raise environmental concerns above other legitimate considerations, but only requires that the environmental concerns be brought to the agency's attention. Id.
Accordingly, a reviewing court may not substitute its judgment for that of the agency concerning the prudence or wisdom of a proposed action. Northwest Indian Cemetery Protective Association v. Peterson, 795 F.2d 688, 695 (9th Cir. 1985). Rather, the court must determine whether the EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). If it does, the decision will not be disturbed.
The adequacy of the EIS is a legal question appropriate for summary judgment. City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986).
C. Scope of Evidence on Review
Judicial review of agency action in the NEPA context is generally limited to a review of the administrative record. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985); Friends of Earth v. Hintz, 800 F.2d 822, 828 (9th Cir. 1986). However, some circumstances may justify expanding review beyond the record or permitting discovery. National Audubon Society v. U.S. Forest Service, 4 F.3d 832 (9th Cir. 1993). The district court may inquire outside the administrative record when necessary to explain the agency's action. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436. An allegation that an EIS has failed to mention or inadequately explored a serious environmental consequence may also permit the introduction of evidence outside the administrative record. Id. at 1437. Other reasons to permit additional evidence include when plaintiffs make a showing of agency bad faith, Id. ; when special review procedures are prescribed by Congress, Public Power Council v. Johnson, 674 F.2d 791, 794-95 (9th Cir. 1982); or when it appears that the agency has relied on documents or materials not in the record. Id.
However, the court's inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. Friends of Earth v. Hintz, 800 F.2d at 829.
In this case, the County claims that the Court should consider several documents which are not contained in the administrative record ("Record"). One of these is a document indicating that the United States Environmental Protection Agency has determined that the aquifer underlying the Project is the sole or principal source of drinking water for the region. However, the County has not made the requisite showing to justify the Court's expanding its review beyond the Record. Although the County suggests that the Court may consider this additional document because the EIS inadequately identifies and explores the potential impact of groundwater contamination on residents in the region, the EIS specifically states that the aquifer underlying the Campo reservation is the region's only or primary source of water. EIS at S-8. This is the premise underlying much of the analysis contained in the EIS. Neither this nor any of the other documents presented indicate that the EIS failed to mention or inadequately considered serious environmental consequences justifying the Court's review beyond the Record.
The County also demands that the defendants produce for review the lease between the Campo Band and Muht-Hei, Inc., a tribal corporation, and the sublease with the landfill developer, Mid-American Waste Systems, Inc. The County claims that the lease and sub-lease including their financial terms, are critical to explaining the agency's decision to proceed with the Project as a financial opportunity for the Campo Band. It also claims that the terms of the leases are relevant to determining whether the Band will have the financial resources to take the necessary mitigation measures should environmental damage occur.
The defendants respond, first, that the lease is already in the Record, with certain financial information redacted. They claim the financial information and sub-lease are not relevant to the environmental consequences of the Project or the agency's compliance with NEPA. Further, defendants claim that such information must be kept confidential so as not to threaten the Campo Band's competitive position in the landfill market. Defendants point out that NEPA permits withholding confidential commercial information from the public.
The Court agrees with defendants that the financial information requested is confidential and not relevant to the adequacy of the EIS or the agency's compliance with NEPA. Final approval of the Project is conditioned on development of mitigation measures, as required by both federal and tribal regulations.
NEPA does not require that the EIS include an economic study of the Project and its ability to generate the revenues necessary to comply with the required mitigation plan.
The County has also requested that defendants identify the preparers of the EIS and their credentials. This information is already contained in the EIS and the Record. The EIS includes a list of its principal preparers. EIS, 11-1 to 11-3. The Record also contains numerous references to the experts who prepared the particular reports and reached the particular conclusions set forth in the EIS. Although the County has requested the names of those experts which disagreed with the County's expert, such information is irrelevant to an evaluation of the adequacy of the EIS.
The County has also requested discovery on the monitorability of the Project, claiming this is an issue of material fact. However, such discovery would only produce the opinions of the County's scientific experts, some of whom may disagree with the BIA's experts. Such opinions are irrelevant to the questions before this Court. It is well established that in determining whether an agency has complied with NEPA, the district court will not resolve a battle between scientific experts. Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993).
Accordingly, the County has not made the requisite showing to justify the Court's expanding its review beyond the Record.
II. BIA Compliance with NEPA
A. EIS Analysis of Environmental Impact
1. The Requirements of NEPA
Section 102(2) of NEPA provides, in relevant part, that for all "major Federal actions significantly affecting the quality of the human environment," a detailed environmental impact statement must be drafted, which includes a discussion of:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,