Opinion
Case No. 2:95CV1025C
August 14, 2000
ORDER
This case requires the court to determine the rights and responsibilities of various federal, state, Indian, and private actors to use or limit the use of certain property adjacent to Interstate Highway 15 within the St. George City limits. The historical and procedural backgrounds to this case are complex and raise issues of administrative and environmental law as well as federal Indian law.
This action arose after the Bureau of Indian Affairs ("BIA") took property into trust for the benefit of the Plaintiff Shivwits Band of Paiute Indians ("Shivwits Band") and approved a lease agreement between the Shivwits Band and Plaintiff Kunz and Company, d.b.a. Kunz Outdoor Advertising ("Kunz"). The parties involved in this lawsuit disagree as to whether the acquisition of the land was valid and whether the approval of the lease was valid. Assuming the acquisition and the lease were lawful, the parties disagree as to what laws may be enforced on the property. The action is before the court on three motions for summary judgment.
Factual Background
On July 16, 1993, Kunz contacted the Shivwits Band and proposed a business venture. Kunz proposed that the Shivwits Band purchase property with money furnished by Kunz. (See Esplin Aff. at 4, attached as Ex. A to Pls.' Mot. Summ. J.) In exchange, the Shivwits Band would agree to grant Kunz the exclusive right to place outdoor advertising signs on the property. (See id.)
According to the Complaint, the Shivwits Band entered into five leases with Kunz. A "sample" lease (attached as Ex. D to Compl.) extends for a twenty-year period. The lease requires Kunz to pay the Shivwits Band $1800 every year for the first fifteen years. For the last five years of the lease, Kunz is required to pay the Shivwits Band $2500 per year.
The Shivwits Band agreed to the proposal, was advanced money by Kunz, and bought property on August 9, 1994. (See id. at 5.) The property is located in St. George City, some distance from the Shivwits Band Reservation. On the same day, the Shivwits Band conveyed the property to the United States to be held in trust for the tribe. In November 1994, the BIA determined that no environmental review was required for the act of taking the property into trust.
An off-reservation trust acquisition, like the one at issue here, must be approved by the Department of the Interior. On May 10, 1995, the Shivwits Band submitted the necessary administrative documents for approval of the trust acquisition to the BIA. The request that the property be accepted in trust was approved on August 31, 1995, by the local office of the BIA. Following acceptance of the property in trust, the parties finalized five separate leases covering the property.
Before the acquisition was approved, an environmental assessment (EA 94-3) was prepared for the act of approving the lease agreement. Following completion of EA 94-3 on July 6, 1995, a Finding of No Significant Impact ("FONSI") was reached on August 31, 1995 (the same day the acquisition decision was approved by the BIA). The Secretary of Interior then approved the lease agreement with Kunz on September 11, 1995. (See Ex. 20 to Admin. R.) The billboards were built soon thereafter.
There was some confusion among the parties as to the date of the FONSI. (See United States' Mem. in Resp. to Third-Party Pls.' Mot. Summ. J. at 2, ¶ 5b.) According to the United States, the "correct date is August 31, 1995." (Id.)
Like the decision to take the land into trust, approval of the Secretary of the Interior of the lease arrangement was necessary to give the leases effect. See 25 U.S.C. § 415.
Procedural History
Defendants State of Utah, the Utah State Department of Transportation and St. George City (collectively, "Defendants") contend that the statute authorizing acquisition of the land is unconstitutional, that the acquisition of the land and approval of the lease agreements violated applicable environmental laws and procedural regulations, and that the placement of billboards on the property is unlawful under state (Utah Outdoor Advertising Act, Utah Code Ann. § 27-12-136.1) and local law (St. George City Code, Title 9, chapter 8).
The statute designates certain areas where outdoor advertising may be placed. In addition, Defendants contend that the signs violate State law because Plaintiffs lack a valid State permit as required by Utah Code Ann. ¶ 27-12-136.7(1). The placement or maintenance of the signs would be a criminal misdemeanor under Utah Code Ann. ¶ 27-12-136.12.
St. George City Code §§ 9-8-4(B)(4) and 9-8-2(Q) govern off-premise signs. The Defendants allege that the Plaintiffs' signs violate these Code sections because they do not comply with spacing requirements and would not meet any of the exceptions for allowance of signs.
On October 25, 1995, the Utah Attorney General's office, on behalf of the Utah Department of Transportation, threatened criminal suit against Kunz if construction of the signs did not immediately cease. Kunz ignored the warning and continued construction. On November 3, 1995, the City of St. George issued a stop work order, forbidding Kunz from further construction of the signs on the ground that it violated city and state outdoor advertising regulations and Kunz had no city or state sign permits.
On November 17, 1995, Kunz and the Shivwits Band (collectively, "Plaintiffs") sued for declaratory judgment and preliminary and permanent injunctive relief against the Defendants. Plaintiffs' lawsuit seeks (1) an order declaring that the property is lawfully held, and (2) injunctive relief restraining Defendants from interfering with the construction and operation of the billboards.
On November 22, 1995, Defendants filed a counterclaim against Plaintiffs and a third-party claim against Bruce Babbitt, Ada Deer, Walter Mills, and the BIA (collectively "Third-Party Defendants"). The counterclaim and third-party claim allege that (1) the statute authorizing land acquisitions, 25 U.S.C. § 465 (and the accompanying regulation, 25 C.F.R. § 1.4), is unconstitutional; (2) the taking of the land in trust and the approval of the lease were wrongly accomplished because the Third-Party Defendants violated the National Environmental Policy Act ("NEPA") and Department of Interior ("DOI") regulations; and (3) the erection of billboards on the property violates certain state and local regulations.
The three causes of action listed above summarize the nine causes of action actually outlined in the counterclaim and third-party claim. As listed by the Third-Party Plaintiffs, the nine claims for relief are: (1) 25 U.S.C. § 465 is unconstitutional; (2) violation of 25 C.F.R. § 151 and 25 C.F.R. § 2.7; (3) violation of Utah Code Ann. §§ 27-12-136.1, 136.4(1), 136.7; (4) violation of St. George City Code §§ 9-8-4(B)(4) and 9-8-2(Q); (5) violation of 25 U.S.C. § 766(d); (6) violation of NEPA in connection with the acceptance of lands into trust; (7) violation of 25 U.S.C. § 465 and the applicable regulations; (8) violation of NEPA in connection with the approval of the leases; and (9) injunctive relief. The third cause of action is brought only by the State of Utah and the fourth cause of action is brought only by the City of St. George. The other seven causes of action are brought by all counterclaim and third-party Plaintiffs.
On September 18, 1996, the parties agreed to delay the proceedings pending the Supreme Court's consideration of a decision by the Eighth Circuit Court of Appeals, which had found 25 U.S.C. § 465 an unconstitutional delegation of legislative power. See State of South Dakota v. United States Dep't of the Interior, 69 F.3d 878 (8th Cir. 1995). (Section 465, as mentioned above, and discussed below, allows the government to take land into trust for Indian tribes). On October 15, 1996, the Supreme Court vacated the Eighth Circuit decision and remanded. See Department of the Interior v. South Dakota, 519 U.S. 919 (1996). Following the Supreme Court's decision, the parties filed the pending motions for summary judgment.
Pending Motions
The three groups of parties have all moved for summary judgment. In support of their motions, the parties make the following arguments:
(1) Third-Party Defendants: (1) the court lacks subject matter jurisdiction over the Third-Party Defendants for certain claims because there has been no waiver of sovereign immunity; (2) the Third-Party Defendants fully complied with statutes and regulations applicable to taking land into trust and approving the lease agreements; and (3) the lands held in trust for the Shivwits Band are Indian Country and not subject to federal, state, or local law and regulation.
(2) Plaintiffs: (1) the Shivwits Band followed all required procedures under 25 U.S.C. § 465 in taking the lands into trust; (2) federal, state, and local laws are not enforceable on the property under federal law and the principle of federal preemption; and (3) no federal laws authorize regulation of billboards on Indian Lands.
(3) Defendants: (1) 25 U.S.C. § 465 is an unconstitutional delegation of legislative power; (2) the taking of the property in trust and the approval of the sign lease by federal officials was improper because (a) it occurred without the required consideration of environmental laws and/or (b) the Secretary of the Interior did not follow the required procedures; (3) even if the property is properly held in trust, there is no sufficient basis for exempting the land from applicable federal, state, and local laws restricting the placement of outdoor advertising; and (4) involvement of the Shivwits Band solely to validate the billboards constitutes "marketing an exemption," a practice the Supreme Court has held invalid.
The Third-Party Defendants' sovereign immunity defense does not apply to violations of NEPA claims and is, therefore, not considered in this order.
Analysis
A. 25 U.S.C. § 465In 1934, Congress passed the Indian Reorganization Act, 25 U.S.C. § 461, et seq., with the purpose of protecting Indians and encouraging and fostering self-government by the various Indian tribes. See, e.g., Cheyenne River Sioux Tribe v. Kleppe, 424 F. Supp. 448 (D. S.D. 1977), rev'd on other grounds, 566 F.2d 1085 (8th Cir. 1977). Of particular importance to this case is 25 U.S.C. § 465, a broad delegation of power concerning the acquisition of property in trust:
The Secretary of the Interior is hereby authorized, in his discretion, to acquire, . . . any interest in lands . . . within or without existing reservations, including trust or otherwise restricted allotments . . . for the purpose of providing land for Indians. . . .
Title to any lands or rights acquired pursuant to [this and other sections of this title] shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.
Id.
Defendants argue that the statute is an unconstitutional delegation of legislative power because it contains no limits on the amount of land to be taken and has no ascertainable standards against which a reviewing court can test the exercise of the delegated power. The Tenth Circuit has squarely rejected this argument, acknowledging that the statute itself places limits on the Secretary's discretion. See United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999), cert. denied 120 S.Ct. 1960 (2000). Therefore, 25 U.S.C. § 465 is constitutional.
B. Compliance with NEPA
The BIA did not prepare an environmental impact statement ("EIS") or environmental assessment ("EA") in connection with the acceptance of the land into trust. The BIA did, however, prepare an EA in connection with the approval of the lease between Kunz and the Shivwits Band. Defendants contend that the BIA was required to prepare an EA (at least) for the acquisition of the property. Plaintiffs and Third-Party Defendants respond that no NEPA review was necessary for the land acquisition, or, alternatively, that the EA prepared in connection with the lease approval satisfies any NEPA requirements for the acquisition of the land.
This is only one of many violations the Defendants allege. Due to the conclusion on this issue, the court does not address the Defendants' further arguments at this time. See United States v. Burlington N. R.R. Co., 200 F.3d 679, 699 (10th Cir. 1999) ("It is fundamental that federal courts do not render advisory opinions. . . .").
1. Standard of Review
NEPA requires federal agencies to evaluate the environmental impacts of federal actions. See 42 U.S.C. § 4332. The Administrative Procedure Act ("APA") sets forth the standard of review to be applied by courts in reviewing agency actions. Among other things, the APA directs courts to hold unlawful agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Generally, an agency decision will be considered arbitrary and capricious if `the agency had relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (internal citations omitted). Under an arbitrary and capricious standard, a court may disapprove of an agency's decision only if the agency made a "clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989).
2. Categorical Exclusion
In general, an EA or EIS is required for every agency action unless the action is entitled to categorical exclusion ("CE") status. See Catron County Bd. of Comm'rs v. United States Fish Wildlife Serv., 75 F.3d 1429, 1435 (10th Cir. 1996) ("For proposed actions the environmental effects of which are uncertain, the agency must prepare an [EA] to determine whether a significant effect will result from the proposed action."). CEs are categories of actions which do not, individually or cumulatively, have a significant effect on the human environment and therefore, do not require an EA or EIS. See 40 C.F.R. § 1508.4 ("[N]either an environmental assessment nor an environmental impact statement is required" when a CE applies.). As explained in the Department of Interior Manual,
As noted below, an EA is not required when the action is "covered sufficiently by an earlier environmental document" or when the agency has already decided to prepare an EIS. 516 Dep't Manual 3.2. None of the parties contend that any exception (other than the a CE) applies in this case.
An EA will be prepared for all actions, except those covered by a categorical exclusion, covered sufficiently by an earlier environmental document, or for those actions for which a decision has already been made to prepare an EIS. The purpose of an EA is to allow the responsible official to determine whether to prepare an EIS.
516 Dep't Manual 3.2 (emphasis added). (Portions of the Department Manual are attached as Exhibits B-E to Defendants' Supplementary Memorandum.) According to a BIA Manual (titled "NEPA Handbook"), the actions that are entitled to CE designation are those that:
have been determined not to individually or cumulatively affect the quality of the human environment and, therefore, they do not normally require preparation of either an EA or EIS. However, exceptions may exist in which a normally excluded action may result in significant effects upon the environment, and in such cases an EA or EIS must be prepared. . . . If there is any doubt whether an exception applies, an EA should be prepared.
30 BIA Manual Suppl. 1, 3.2(A). (Portions of the BIA Manual are attached as Exhibits A to Defendants' Supplementary Memorandum.)
The decision to apply a CE is reviewed under the usual arbitrary and capricious standard. See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir. 1996) ("An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious."); Hells Canyon Preservation Council v. Jacoby, 9 F. Supp.2d 1216, 1232 (D. Ore. 1998) (same).
The Defendants argue that the decision to categorically exclude the act of acquiring the property was arbitrary and capricious since no CE applies to that agency action. In a two-page "Categorical Exclusion Checklist" ("Checklist") dated November 15, 1994, BIA representatives concluded that the proposed action (the taking of the property into trust) was entitled to a CE designation. (The Checklist is attached as Exhibit 7 to the Administrative Record.)
Although the Checklist mentions the lease agreement, it is clear that the Checklist means to categorically exclude the land acquisition, not the lease arrangement. Under the heading "Brief description of proposed action," for example, the document reads, "The Shivwits Band of Paiute Indians is requesting two small parcells [sic] of newly acquired property be taken into trust."
Since the Checklist does not clearly identify any basis for a CE, the first issue is whether there is any CE that applies to decisions to acquire land. According to the BIA Manual, CEs are those actions listed in 516 Department Manual 2, Appendix 1 and 516 Department Manual 6, Appendix 4.4. See 30 BIA Manual Suppl. 3.2.
The discussion in the "Explanation and/or remarks" section of the Checklist is of little help. In its entirety, this section reads:
516 DM 2.3A(3) Applicable or not applicable
516 DM 6 App. 4 — Not Applicable
30 BIAM Suppl., 3.2A BIA C.E. In Addition to
516 DM 2.3A(3) —
4.4 I.2. The Shivwits Band plans to lease 5 sign spaces for outdoor advertising. This will give the Band the opportunity for economic development and much needed income now and in the future. There is the possibility for future economic development when the surrounding area is developed. The last reference to "4.4 I.2" likely refers to 516 Department Manual 6, Appendix 4, paragraph 4.4(I)(2). As set forth below, paragraph 4.4(I)(3) is the more appropriate exclusion, not 4.4(I)(2).
516 Department Manual 2, Appendix 1 lists eleven CEs, and none apply to acquisition of land. (This document is attached as Exhibit C to Defendants' Supplementary Memorandum.) 516 Department Manual 6, Appendix 4 lists five CEs. (This document is attached as Exhibit E to Defendants' Supplementary Memorandum.) 516 Department Manual 6, Appendix 4, paragraph 4.4(I) identifies "Land Conveyance" as a CE, and appears to be the only possible relevant exclusion:
The following BIA actions are hereby designated as categorical exclusions . . .
(1) Land transfers from Federal or State Agencies or other DOI Bureaus to the BIA as land to be held in trust for the Indian tribe(s) involving no development, physical alteration, or change in land use.
(2) Purchase, sale, abandonment or exchange of tracts of land, mineral rights or other interests in land in which no change in land use or operation is planned.
(3) Lands acquired pursuant to 25 U.S.C. § 465 . . . where no development, physical alteration, or change of land use after acquisition is known or planned.
Id. (emphasis added). Although the Checklist does not clearly identify its basis for a CE, the only arguable ground for an exception is the exclusion identified in 516 Department Manual 6, Appendix 4, paragraph 4.4(I)(3) (hereinafter "4.4(I)(3)").
Having concluded that a CE could apply to the agency action, the next issue is whether the action in this case falls within the scope of that CE. By its own terms, 4.4(I)(3) does not apply when "development, physical alteration, or change of land use after acquisition is known or planned." Id. (emphasis added). Here, the Kunz-Shivwits Band lease was clearly contemplated at the time the land was acquired. (Indeed, the Checklist itself reveals that the BIA knew of the billboard lease at the time of acquisition.) Under its express terms, then, 4.4(I)(3) would not categorically exclude the land acquisition from NEPA review.
Plaintiffs and Third-Party Defendants contend, however, that 4.4(I)(3) does apply because the BIA (and the DOI) interprets 4.4(I)(3) to grant "CE status so long as appropriate NEPA analysis is performed before such a change in land use takes place." (Joint Suppl. Mem. at 3) (italics in original.) As discussed below, an EA regarding the leasing arrangement was completed on July 6, 1995 (before the change in land use (i.e., the construction of the billboards) took place). If Plaintiffs and Third-Party Defendants' interpretation of 4.4(I)(3) is correct, then, the CE would be valid since an EA was performed before the change in land occurred.
When reviewing an agency's application of its own regulation, the agency's interpretation of its regulation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 509 (1994); Alaska Ctr. for the Env't v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999); Southern Utah Wilderness Alliance v. Dabney, 7 F. Supp.2d 1205, 1209 (D. Utah 1998). "In other words, [a court] must defer to the Secretary's interpretation unless an `alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation.'" Thomas Jefferson Univ., 512 U.S. at 509 (internal citations omitted).
In support of their contention that 4.4(I)(3) affords CE status for all land acquisitions so long as NEPA review takes place before any contemplated change in the land, Plaintiffs and Third-Party Defendants cite three sources. First, the parties cite 61 Federal Register 67845, 67845-46 (Dec. 24, 1996), which summarizes comments and responses on 516 Department Manual 6, Appendix 4:
Response: It is unrealistic to expect land to be conveyed with no plan whatsoever for its future use. Whether or not the conveyance may be categorically excluded is a matter of judgment by the BIA official responsible for NEPA compliance as to how well the plan is established. The categorical exclusion does not, however, allow for any development or physical alteration to actually take place.
Comment: Recommendation that all land transfers be categorically excluded, regardless of plans for future development or physical alternation, so long as the subsequent activity will be subject to NEPA review.
Response: This is in fact the way the categorical exclusion is meant to operate. What the BIA official responsible for NEPA compliance must decide is whether or not plans for development or physical alteration are established to the point where NEPA review of the proposed activity should be done in conjunction with the land transfer.
Id. (This portion of the Federal Register is attached as Exhibit A to the Joint Supplemental Memorandum.)
As noted above, the Checklist is dated November 15, 1994, well before the publication of this comment and response. There is, however, no reason to believe that the interpretation of 4.4(I)(3) would have been different in 1994.
Next, the parties cite a June 9, 1995 letter from the BIA Phoenix Area Director stating that "Our Branch of Environmental Quality Services has advised that the proposed acquisition may be considered to be a categorical exclusion under NEPA, now that we have amended the [CE] checklist to indicate that `[f]urther environmental documentation will be competed at the time of leasing.'" (This letter is attached at Exhibit 12 to the Administrative Record.)
Finally, Plaintiffs and Third-Party Defendants cite the declaration of Wayne Nordwall, Director of the Western Regional Office of the BIA. (Nordwall's declaration is attached as Exhibit C to the Joint Supplementary Memorandum.) According to Nordwall,
The [DOI] has identified trust acquisitions as categorically excluded actions where there will be no immediate change in use of the land. . . . Since the two parcels were being acquired for economic development, this office amended the Checklist to make it clear that environmental documentation (an EA or EIS) would be necessary at the time of leasing. This is a normal procedure of the [BIA] when a change in use for the land is known, but the change will not occur until some time after the land will be taken into trust.
The last two sources are of limited value since they do not refer to written agency policy, but rather opinions of agency employees.
Although the BIA and DOI agree that "all land transfers be categorically excluded, regardless of plans for future development or physical alternation, so long as the subsequent activity will be subject to NEPA review," the DOI's own interpretation of 4.4(I)(3) articulates an express limitation: "Whether or not the conveyance may be categorically excluded [depends on] how well the plan is established. . . . . What the BIA official . . . must decide is whether or not plans for development or physical alteration are established to the point where NEPA review of the proposed activity should be done in conjunction with the land transfer." 61 Fed. Reg. 67845 (emphasis added). A fair interpretation of these sentences is the following: if the plans for land development are sufficiently "established," NEPA review of the land change decision should take place at the same time the land is acquired. In that case, 4.4(I)(3) would not categorically exclude the act of acquiring the land, and NEPA review for both actions would be necessary. If, on the other hand, the plans for development are not sufficiently "established," the CE applies and no NEPA review is necessary for the acquisition itself.
Even assuming the DOI's interpretation is reasonable, 4.4(I)(3) would not categorically exclude the acquisition of the property in this situation. Kunz contacted the Shivwits Band as early as July 16, 1993 to discuss a leasing arrangement, and a lease was executed by May of 1994. By August 1994, the land had been conveyed to the United States to be held in trust. By the time the Checklist was completed on November 15, 1994, the procedures necessary to finalize both the land acquisition and the lease were well underway. In addition, BIA officials were well aware of the pending leasing arrangement at the time the land was taken into trust and before the Checklist was finalized. This was not a case where land was acquired with some undefined plan of future land development; rather, this is a case where preparation for the future land development preceded the land acquisition itself, and was well "established" when the land transfer was being considered.
This interpretation does not readily flow from 4.4(I)(3) itself, which appears to apply only when no development is "known or planned." Based on the analysis below, however, the court need not decide whether the DOI interpretation is reasonable or not.
The Checklist offers no justifiable basis that would support the decision to forego NEPA review of the land acquisition in this case. There is no reasonable basis supporting the conclusion that 4.4(I)(3) applies and no reasonable rationale is offered by the parties. Hence, by the express terms of 4.4(I)(3) and the DOI's own interpretation of that CE, the acquisition of the land was not entitled to CE status. The decision to categorically exclude the land acquisition was, therefore, arbitrary and capricious.
3. EA 94-3
Since no CE applied to the acquisition of the property in this case, NEPA review was required for that act. See 516 Dep't Manual 3.2. Plaintiffs and Third-Party Defendants contend that the EA completed for the billboard lease (i.e., EA 94-3) was adequate to satisfy any required NEPA review of the land acquisition. (EA 94-3 is attached as Exhibit 16 to the Administrative Record.) First, Plaintiffs and Third-Party Defendants note that EA 94-3 was completed on July 6, 1995, nearly two months before the land was taken into trust on August 31, 1995. Since EA 94-3 was completed before the land acquisition, Plaintiffs and Third-Party Defendants contend that NEPA review includes both the lease approval and the acquisition of the land. Second, Plaintiffs and Third-Party Defendants stress that "because the trust decision did not itself involve any physical alteration of the property, [the decision to acquire the land] alone does not add any potential element of significant environmental impact that should be analyzed in an EA that was not already analyzed in the EA for the leases." (Joint Suppl. Mem. at 7.) Hence, "remanding the trust decision to the agency for a separate EA would serve no meaningful purpose, because the pertinent issues were already addressed in the billboard lease EA which was prepared before the trust decision was made." (Id. at 9.) These points are taken in turn below.
First, Plaintiffs and Third-Party Defendants contend that EA 94-3 includes both the decision to acquire the land and the decision to approve the lease. EA 94-3, however, focuses exclusively on the lease itself, not the acquisition of the land. Under the heading "Purpose and Need," the document states that "Kunz . . . has submitted a request for a lease to erect five (5) outdoor advertising signs [on] property that is being purchased by the Shivwits Band of Paiute Indians." (EA 94-3 at 1.) Under the heading "Proposed Action and Alternatives," the document reads, "The proposal is for a 15-year, renewable, lease for five sign sites for the erection of five 14' x 48' outdoor advertising signs." (Id.) In its discussion of "Environmental Consequences," EA 94-3 focuses on the environmental effects of sign construction, access to signs, and sign maintenance. (See id. at 3.)
This conclusion is not surprising given the fact that the act of acquiring the land had been categorically excluded in November 1994.
No part of the EA discusses the land acquisition itself. In fact, although the first page of the EA states that the property "is being purchased by the Shivwits," a subsequent sentence indicates that the Shivwits Band have already completed the purchase: "The land now belongs to the Shivwits Band. . . ." (Id. at 1, 4.) Since EA 94-3 applied only to the approval of the lease, not the acquisition of the land, the EA does not satisfy the NEPA review required for the acquisition of the land itself.
The subsequent FONSI supports this conclusion. Dated August 31, 1995, the FONSI clearly applies only to the lease, not the land acquisition. The document begins by stating that "The Shivwits Band of Paiute Indians propose to lease to Kunz and Company five (5) sign sites . . .," and does not mention the acquisition of land itself.
Plaintiffs and Third-Party Defendants next claim that the decision to acquire the property did "not add any potential element of significant environmental impact that should be analyzed in an EA that was not already analyzed in the EA for the leases." (Joint Suppl. Mem. at 7.) However, according to the DOI regulations that have been discussed above, only some land acquisitions are categorically excluded, and none apply in this case. Consequently, the Third-Party Defendants were required to conduct an EA to evaluate the possible environmental implications of acquiring the land, and their failure to do so violates NEPA.
The failure to comply with the procedural requirements of NEPA is more than de minimus and does not (as Plaintiffs and Third-Party Defendants contend) "elevate form over substance." (Id.) "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.' Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) (internal citations omitted); Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 705 (3d Cir. 1999) ("NEPA ensures that an agency has before it detailed information on significant environmental impacts when it makes its decisions and guarantees that this information is available to a larger audience."); Committee to Preserve Boomer Lake Park v. Department of Transp., 4 F.3d 1543, 1554 (10th Cir. 1993). The way in which NEPA achieves its goals is through procedural requirements. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (NEPA "does not mandate particular results," but it does "prescribe the necessary process."); Laguna Greenbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9th Cir. 1994) ("NEPA does not mandate particular substantive results, but instead imposes only procedural requirements.").
The failure to prepare any NEPA review of the land acquisition was a procedural harm that frustrated NEPA's goals: for example, relevant information was not made available to the wider audience participating in the agency decision-making process prior to the agency action and members of the public were denied sufficient opportunity to submit comments. Cf. Laguna Greenbelt, Inc., 42 F.3d at 527 (finding that the NEPA violations did not frustrate NEPA's goals when an incomplete EA was prepared since the public had sufficient information and was able to comment about the proposed action before the final decision was made). This is not a case where an arguably imperfect EA was prepared or the agency's decision to not prepare an EIS is at issue. In this case, the agency decided not to conduct any environmental analysis at all. The BIA violated the procedural requirements of NEPA; therefore, the agency action must be invalidated.
Conclusion
Based on the analysis above, the court concludes that the failure to prepare an EA in connection with the acquisition of the land violated the procedural requirements of NEPA. The court therefore GRANTS Defendants' motion for summary judgment in part and orders that the required NEPA process be undertaken. See Metcalf v. Daley, 214 F.3d 1135, 1146 (9th Cir. 2000) (requiring that defendants set aside a wrongly-reached FONSI, and "begin the NEPA process afresh [by preparing] a new EA").