FILED
NOT FOR PUBLICATION NOV 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOAPA BAND OF PAIUTES; SIERRA No. 11-17672
CLUB, INC.,
D.C. No. 2:10-cv-02021-KJD-LRL
Plaintiffs - Appellants,
v. MEMORANDUM*
BUREAU OF LAND MANAGEMENT;
SALLY JEWELL; AMY LUEDERS,
Defendants - Appellees,
NEVADA POWER COMPANY,
Intervenor-Defendant -
Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted November 6, 2013
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and NGUYEN, Circuit Judges, and DUFFY,
District Judge.**
Plaintiffs Moapa Band of Paiutes and the Sierra Club appeal the district
court’s grant of summary judgment in favor of the U.S. Bureau of Land
Management (“BLM”) and other federal defendants, and intervenor-defendant
Nevada Power Company (“NPC”). We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm.
The district court correctly determined that BLM complied with the National
Environmental Policy Act (“NEPA”) in evaluating the potential environmental
consequences of the proposed expansion of the Reid Gardner Generating Station in
its environmental assessment (“EA”), and in deciding not to prepare an
environmental impact statement (“EIS”). “NEPA mandates that federal agencies
prepare an EIS for major federal actions ‘significantly affecting the quality of the
human environment.’” Cold Mountain v. Garber, 375 F.3d 884, 892 (9th Cir.
2004) (quoting 42 U.S.C. § 4332(2)(C)). “Not every project necessitates an EIS,”
however, as not every project will significantly affect the environment. Ocean
Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864 (9th Cir. 2005). “[T]o
determine whether the environmental impact is significant enough to warrant an
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
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EIS,” an agency first prepares an EA. Id. If the agency determines following an
EA that “the project will have only an insignificant effect,” it issues a finding of no
significant impact and needs not draft an EIS. Id. Throughout this evaluation
process, agencies must “take seriously the potential environmental consequences of
a proposed action.” Id. Accordingly, “[w]e have termed this crucial evaluation a
‘hard look.’” Id. (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062,
1066 (9th Cir. 2002)).
In reviewing an agency’s action, a court may set it aside, inter alia, if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). “The standard is deferential. The court ‘may not
substitute its judgment for that of the agency concerning the wisdom or prudence
of [the agency’s] action.’” River Runners for Wilderness v. Martin, 593 F.3d 1064,
1070 (9th Cir. 2010) (alteration in original) (quoting Or. Envtl. Council v.
Kunzman, 817 F.2d 484, 492 (9th Cir. 1987)). Thus, “[t]he [agency’s] action . . .
need only be a reasonable, not the best or most reasonable, decision.” Id. (second
and third alterations in original) (quoting Nat’l Wildlife Fed. v. Burford, 871 F.2d
849, 855 (9th Cir. 1989)).
The district court correctly determined that, under this deferential standard,
BLM had taken the requisite “hard look” at the project’s potential environmental
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impacts. The EA is poorly written in places, but BLM’s analysis is not so deficient
as to be arbitrary or capricious. Moreover, in light of the deferential standard
under which we review BLM’s actions, plaintiffs were unable to demonstrate that
BLM’s decision to decline to supplement the EA following plaintiffs’ post-EA
submission of additional information was arbitrary or capricious. We therefore do
not address the question whether a notice to proceed constitutes “major Federal
actio[n] to occur,” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989)
(alteration in original) (internal quotation marks omitted).
The district court correctly determined that BLM’s current regulations
permit the disposal of hazardous waste on public lands under the Federal Land
Policy and Management Act, in light of the deference we owe to BLM’s
interpretation of its own regulations under Auer v. Robbins, 519 U.S. 452, 461
(1997). Even if BLM erred in designating the waste as nonhazardous, it
nonetheless has the authority under its regulations to permit its disposal. In BLM’s
EA, discussion of the potential hazardousness of the waste material went only to
BLM’s analysis of its own authority to permit the disposal; it did not appear to
factor into its finding of no significant impact. As it is clear that BLM would have
reached a permissible finding of no significant impact even had it determined that
the waste material was hazardous, any error in the EA was harmless, see Kazarian
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v. USCIS, 596 F.3d 1115, 1119 (9th Cir. 2010), and did not constitute an
impermissible post-hoc rationalization.
AFFIRMED.
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