Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL PARKS & CONSERVATION 

ASSOCIATION,

Plaintiff-Appellee,

v.

No. 05-56814 BUREAU OF LAND MANAGEMENT;

UNITED STATES DEPARTMENT OF D.C. No.  INTERIOR, CV-00-00041-RT

Defendants,

and

KAISER EAGLE MOUNTAIN, INC.;

MINE RECLAMATION CORPORATION,

Defendants-Appellants. 

15097
DONNA CHARPIED; LAURENCE 

CHARPIED; DESERT PROTECTION

SOCIETY; CENTER FOR COMMUNITY

ACTION AND ENVIRONMENTAL

JUSTICE,

Plaintiffs-Appellees,

v.

UNITED STATES DEPARTMENT OF

INTERIOR,

Defendant,

BUREAU OF LAND MANAGEMENT;

NATIONAL PARK SERVICE; BRUCE

BABBITT, in his official capacity as Nos. 05-56815 Secretary of the Interior; TOM FRY,

05-56843 in his official capacity as Acting

Director of the Bureau of Land  D.C. No.

Management; AL WRIGHT, in his CV-99-00454-RT

official capacity as Acting

California State Director of the

Bureau of Land Management; TIM

SALT, in his official capacity as

Bureau of Land Management

California Desert District

Manager; ROBERT STANTON, in his

official capacity as Director of the

National Park Service,

Defendants,

and

KAISER EAGLE MOUNTAIN, INC.;

MINE RECLAMATION CORPORATION,

Defendants-Appellants. 

15098 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
NATIONAL PARKS & CONSERVATION 

ASSOCIATION,

Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF No. 05-56832

INTERIOR,

Defendant-Appellant, D.C. No.  CV-00-00041-RT

BUREAU OF LAND MANAGEMENT,

Defendant-Appellant,

and

KAISER EAGLE MOUNTAIN, INC.;

MINE RECLAMATION CORPORATION,

Defendants. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15099
DONNA CHARPIED; LAURENCE 

CHARPIED; DESERT PROTECTION

SOCIETY; CENTER FOR COMMUNITY

ACTION AND ENVIRONMENTAL

JUSTICE,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF

INTERIOR; KAISER EAGLE MOUNTAIN

INC.; MINE RECLAMATION

CORPORATION; BUREAU OF LAND

MANAGEMENT; NATIONAL PARK No. 05-56908

SERVICE; BRUCE BABBITT, in his

D.C. No. official capacity as Secretary of  CV-99-00454-RT the Interior; TOM FRY, in his

official capacity as Acting OPINION

Director of the Bureau of Land

Management; AL WRIGHT, in his

official capacity as Acting

California State Director of the

Bureau of Land Management; TIM

SALT, in his official capacity as

Bureau of Land Management

California Desert District

Manager; ROBERT STANTON, in his

official capacity as Director of the

National Park Service,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Robert J. Timlin, District Judge, Presiding

Argued and Submitted

December 6, 2007—Pasadena, California

15100 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Filed November 10, 2009

Before: Harry Pregerson, Stephen S. Trott and

Richard A. Paez, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Trott

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15101
COUNSEL

Leonard J. Feldman, Heller Ehrman LLP, Seattle, Washington, for defendant-appellants Kaiser Eagle Mountain, LLC

and Mine Reclamation, LLC.

Tamara N. Rountree, United States Department of Justice,

Environment and Natural Resources Division, Washington.

D.C., for federal government defendant-appellants.

Deborah Sivas and Noah Long, Stanford Environmental Law

Clinic, Stanford, California, for plaintiff-appellee National

Parks Conservation Association.

Stephan C. Volker, Law Offices of Stephan C. Volker, Oakland, California, for plantiffs-appellees Donna and Laurence

Charpied.

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15105
OPINION

PREGERSON, Circuit Judge:

Kaiser Eagle Mountain, Inc. (“Kaiser”) seeks to build a

landfill on a former Kaiser mining site near Joshua Tree

National Park (“Joshua Tree”). As part of its landfill development plan, Kaiser sought to exchange certain private lands for

several parcels of land surrounding the mine site and owned

by the Bureau of Land Managment (“BLM”). Several parties,

including the National Parks Conservation Association

(“Conservation Association”) and Donna and Laurence Charpied (“the Charpieds”), challenged the land exchange. Nevertheless, the BLM approved the land exchange, as did the

Interior Board of Land Appeals (“Appeals Board”). 

The Conservation Association and the Charpieds pursued

challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act

(“Management Act”) and National Environmental Policy Act

(“NEPA”). The district court held for the Conservation Association and Charpieds on the Management Act claims and

some, but not all, of the NEPA claims. We have jurisdiction

under 28 U.S.C. § 1291 and affirm in part and reverse in part.

I. Background

Kaiser owned and operated an iron ore mine near the Eagle

Mountain range in Riverside County, California from 1948 to

1983. The mine area covered over 5,000 acres and included

four large open pits. The mine area also included a 429-acre

“Townsite,” which housed mine workers and support personnel, and over which the United States owns a reversionary

interest. Though Kaiser currently leases the Townsite for use

as a correctional facility, the majority of the mine site lies dormant. The disturbed lands, which contain large quantities of

mine tailings, have not been reclaimed. 

15106 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
The BLM owns several parcels of land surrounding the former mine site. In 1989, Kaiser sought to acquire these parcels

through a land exchange. Under Kaiser’s proposal, Kaiser will

acquire 3,481 acres of public land, the United States’s reversionary interest in the Townsite, and permanent rights-of-way

over the dormant Eagle Mountain Railroad and Eagle Mountain Road. In exchange, Kaiser offered 2,846 acres of private

land near other BLM lands and within an area designated as

critical habitat for the desert tortoise. 

Kaiser’s ultimate goal is to develop the largest landfill in

the United States. The proposed landfill project will cover

4,654 acres, including support and “buffer” areas. The landfill

will accept solid wastes from several Southern California

communities. The majority of the waste will be transported by

train, though there will also be some truck and “self-haul”

loads. The project is designed to operate for 117 years. At its

peak, the proposed landfill will accept 20,000 tons of garbage

per day, six days a week, for up to sixteen hours per day. During the final phase of the project, to commence in roughly

seventy-eight years, garbage will be deposited into the largest

of the four open mining pits, the East Pit. The remaining pits

will not be filled. The total capacity of the proposed landfill

is approximately 708 million tons. 

Both Joshua Tree and the Kaiser mine site lie within a large

desert wilderness area that is home to several sensitive plant

and animal species, including the desert tortoise and Bighorn

sheep. The proposed landfill site sits within one and-a-half

miles of Joshua Tree. The landfill would be visible from

remote areas of Joshua Tree. 

As part of its analysis of the proposed land exchange, the

BLM produced a Draft Environmental Impact Statement

(“EIS”). The EIS described the purpose and need of the project as follows:

The primary purpose of the Project is to develop a

new Class III nonhazardous municipal solid waste

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15107
landfill to meet the projected long-term demand for

environmentally sound landfill capacity in Southern

California; provide a long-term income source from

the development of a nonhazardous municipal solid

waste landfill; find an economically viable use for

the existing mining by-products at the Kaiser Eagle

Mountain Mine site, including use of existing aggregate and overburden; and provide long-term land use

and development goals and guidance for the Townsite.

With these purposes in mind, the BLM considered six alternatives in detail: (1) No action; (2) Reduced volume of waste;

(3) Alternate road access; (4) Rail access only; (5) Landfill on

Kaiser land only; and (6) Landfill development without

Townsite development. 

The BLM also commissioned an appraisal report on the

proposed exchange lands from David J. Yerke, Inc. (“the

Yerke appraisal”). The Yerke appraisal found that the “highest and best use” of the public lands in question was “holding

for speculative investment.” The appraisal explicitly stated

that it did “not take into consideration any aspects of the proposed landfill project.” The Yerke appraisal therefore valued

the public parcels surrounding the mine site at roughly $77

per acre and the Townsite at roughly $106 per acre.1 The

appraisal valued the Kaiser lands to be exchanged at approximately $104 per acre. The BLM subsequently required Kaiser

to pay $20,100, the difference between the value of the

exchanged public lands and Kaiser’s parcels. 

In 1997, the BLM adopted a Final EIS, incorporating the

Draft EIS, and issued a Record of Decision approving the

land exchange as proposed by Kaiser. The Conservation

1The Los Angeles County Sanitation District has since entered into a

conditional agreement to purchase the landfill property and permits for

over $8,800 per acre. 

15108 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Association and Charpieds filed administrative protests with

the BLM. When those protests were denied, the Conservation

Association and Charpieds separately appealed to the Appeals

Board. The Appeals Board affirmed the BLM’s decision in a

separate decision, incorporating the Draft and Final EIS, in

September 1999. 

The Conservation Association and the Charpieds (hereinafter, collectively “Conservation Association”) filed separate

complaints in the district court seeking review under the

Administrative Procedure Act and alleging violations of the

Management Act and NEPA. The district court consolidated

the complaints. On cross-motions for summary judgment, the

district court ruled in the Conservation Association’s favor, in

part. Looking only to the Record of Decision, the district

court set aside the land exchange because: (1) the BLM did

not give “full consideration” to whether the land exchange is

in the public interest; (2) the Yerke appraisal failed to consider a landfill as a “highest and best use”; (3) the EIS’s “purpose and need” statement was too narrowly drawn, with

accordingly narrow potential alternatives foreordaining landfill development; and (4) the BLM failed to take a “hard look”

at potential impacts on Bighorn sheep and the effects of nitrogen enrichment on the nutrient-poor desert environment. This

appeal followed. 

II. Standard of Review

 We review a grant or denial of summary judgment de

novo. Northwest Envtl. Advocates v. Nat’l Marine Fisheries

Serv., 460 F.3d 1125, 1132 (9th Cir. 2006). We may only

overturn agency action that is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” Great

Basin Mine Watch v. Hankins, 456 F.3d 955, 961-62 (9th Cir.

2006); 5 U.S.C. § 706(2)(A). 

III. Scope of Review

As a preliminary matter, we must first identify the agency

action under our review. The Conservation Association

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15109
argues, as the district court held, that the Record of Decision

constitutes final agency action. We disagree. 

[1] Under the Administrative Procedure Act, only “final

agency action” is subject to judicial review. 5 U.S.C. § 704.

The BLM is part of the Department of the Interior (“DOI”).

DOI regulations state that, barring a petition for a stay, a decision will become effective upon the expiration of the appeal

period. 43 C.F.R. § 4.21(a)(2). If an Appeals Board fails to act

upon a petition for a stay or denies such a petition, the decision becomes effective immediately. 43 C.F.R. § 4.21(a)(3).

The Appeals Board’s decisions, in contrast, constitute final

agency action when made. “The Board [of Land Appeals]

decides finally for the Department [of Interior] appeals to the

head of the Department from decisions rendered by Departmental officials relating to . . . [t]he use and disposition of

public lands . . . .” 43 C.F.R. § 4.1(b)(3)(i). “A decision of the

Board shall constitute final agency action and be effective

upon the date of issuance, unless the decision itself provides

otherwise.” 43 C.F.R. § 4.403.2

[2] In the case before us, the Record of Decision never

became effective, and cannot serve as the agency’s final

action. The language of the Administrative Procedure Act

does not support the Conservation Association’s arguments.

“[A]gency action otherwise final is final . . . whether or not

there has been presented or determined an application for . . .

any form of reconsideration, or, unless the agency otherwise

requires by rule and provides that the action meanwhile is

inoperative, for an appeal to superior agency authority.” 5

U.S.C. § 704. The Conservation Association contends that no

rule renders the Record of Decision inoperative during the

2The Conservation Association argues that 43 C.F.R. § 4.403 applies

only to Appeals Board actions, and does nothing to rob the Record of

Decision of its finality. Taken to its logical conclusion, this argument

would allow for two independent, and potentially conflicting, “final”

agency actions. This cannot be. 

15110 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
pendency of the appeal, and therefore the Record of Decision

is a final action. This court has held, however, that “exercise

of an optional appeal to a Department ALJ renders the initial

Administrator’s decision nonfinal for purposes of judicial

review under the APA.” Acura of Bellevue v. Reich, 90 F.3d

1403, 1407 (9th Cir. 1996). Furthermore, the Conservation

Association’s argument ignores the “otherwise final” language of the Administrative Procedure Act. DOI rules need

not explicitly render the Record of Decision inoperative

because, in a case such as that before us, the decision was

never effective in the first instance.3

[3] We note that in some cases, a Record of Decision may

constitute final agency action. For example, where there is no

administrative appeal, a Record of Decision will become

effective and final following the expiration of the appeal

period, in accordance with 43 C.F.R. § 4.21(a)(2). Similarly,

where the Appeals Board denies a petition for a stay, a Record

of Decision will become effective and final in accordance

with 43 C.F.R. § 4.21(a)(3). Indeed, this was the situation in

Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172

(9th Cir. 2000). There, the Appeals Board denied a petition

for a stay. Id. at 1175. This court therefore reviewed the

Record of Decision as the final agency action. See, e.g., id. at

1182. In the case before us, in contrast, the Appeals Board

3Contrary to Kaiser’s suggestion, our holding is not compelled by 43

C.F.R. § 4.21(c). § 4.21(c) states: 

No decision which at the time of its rendition is subject to appeal

to the Director or an Appeals Board shall be considered final so

as to be agency action subject to judicial review under 5 U.S.C.

704, unless [1] a petition for a stay of decision has been timely

filed and [2] the decision being appealed has been made effective

. . . . 

(Emphasis added). This subsection deals with exhaustion of administrative

remedies, not finality of agency action. If taken, as Kaiser suggests, to

touch upon finality of agency action, § 4.21(c)’s requirement that a petition for stay be timely filed would render all actions not subject to a petition for stay non-final, and thus unreviewable. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15111
granted a stay. The Record of Decision therefore never

became effective and was not the final agency action. We

reverse the district court to the extent that it limited its review

to the Record of Decision. The Appeals Board decision,

which incorporated the Environmental Impact Statement, is

the final agency action before us for review. 

IV. Federal Land and Policy Management Act Claims

Kaiser and the BLM appeal the district court’s determinations that the Yerke appraisal was inadequate and that the

BLM failed to give “full consideration” to whether the land

exchange well serves the public interest. 

A. Highest and Best Use 

1. Exhaustion of Administrative Remedies

In district court, the Conservation Association challenged

the BLM’s appraisal of the exchange lands on the ground that

the BLM failed to consider a landfill as the “highest and best

use” of the public parcels. Kaiser and the BLM argue, as they

did before the district court, that the Conservation Association

failed to exhaust this issue before the Appeals Board, and that

this court should not review the highest and best use claim. 

[4] “As a general rule, we will not consider issues not presented before an administrative proceeding at the appropriate

time.” Marathon Oil Co. v. United States, 807 F.2d 759, 767-

68 (9th Cir. 1986). However, we have repeatedly held that the

exhaustion requirement should be interpreted broadly. Plaintiffs fulfill the requirement if their appeal “provided sufficient

notice to the [agency] to afford it the opportunity to rectify the

violations that the plaintiffs alleged.” Native Ecosystems v.

Dombeck, 304 F.3d 886, 899 (9th Cir. 2002). Plaintiffs need

not state their claims in precise legal terms, and need only

raise an issue “with sufficient clarity to allow the decision

maker to understand and rule on the issue raised, but there is

15112 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
no bright-line standard as to when this requirement has been

met.” Great Basin Mine Watch v. Hankins, 456 F.3d at 968

(internal quotation omitted). 

[5] In the case before us, we are satisfied that the Appeals

Board received sufficient notice to allow the agency to

respond to the highest and best use issue. Although the Conservation Association did not use the words “highest and best

use,” its Statement of Reasons for appeal to the Appeals

Board stated:

THE BLM WILL NOT RECEIVE FAIR MARKET

VALUE FOR THE EXCHANGE. Any disposal of

federal lands must be compensated at “fair market

value of the use of public lands and their resources.”

43 U.S.C.A. § 1701(a) . . . . Kaiser will also pay

BLM a lump sum of $20,100, which is below the

fair market value. Kaiser anticipates huge profits

from a landfill operation on the undervalued BLM

land . . . . 

(emphasis added). In their separate Statement of Reasons, the

Charpieds argued that “the public should receive fair appraisal

for its lands,” and “[n]ot an appraisal that has been artificially

reduced in value through instructions to discount developments, improvements, and recent zoning changes.” 

[6] These statements adequately raised the highest and best

use issue before the Appeals Board.4 The Yerke appraisal

4The dissent finds language such as “appraisers failed to consider that

the Federal land to be exchanged is proposed to be used as a landfill, and

that, as a result, the land should be valued . . . in comparison to landfill

sites” satisfactory to exhaust the highest and best use issue. Dissent at

15178 (quoting Donna Charpied, 137 IBLA 45, 47 (1996). We see no

meaningful distinction between this language and that presented in the

case before us, which highlights that Kaiser will reap profits “from a landfill operation,” will pay “below the fair market value,” and that the

appraisal unfairly ignored development and zoning changes. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15113
explicitly states that it does not consider any aspect of the

landfill project. The Conservation Association’s Statement of

Reasons highlighted the BLM’s failure to appraise the land’s

fair market value as a landfill. The highest and best use analysis is an integral part of the appraisal process. 43 C.F.R.

§ 2201.3-2(a)(1) (“In estimating market value, the appraiser

shall: (1) Determine the highest and best use of the property

to be appraised[.]”). Under such a backdrop, the Appeals

Board had sufficient notice to address the highest and best use

issue.

2. Merits of the Highest and Best Use Claim

The statutory and regulatory requirements governing

appraisals are numerous. The Management Act requires the

BLM to appraise lands before agreeing to a land exchange. 43

U.S.C. § 1716(d)(1). This appraisal must set forth an opinion

regarding the market value of the lands “supported by the presentation and analysis of relevant market information.” 43

C.F.R. § 2200.0-5(c). Market value “means the most probable

price . . . that lands or interests in lands should bring in a competitive and open market . . . where the buyer and seller each

acts prudently and knowledgeably.” 43 C.F.R. § 2200.0-5(n).

“In estimating market value, the appraiser shall: (1) Determine the highest and best use of the property to be appraised”;

and “(2) Estimate the value of the lands and interests as if in

private ownership and available for sale in the open market.”

43 C.F.R. § 2201.3-2(a)(1)-(2). “Highest and best use means

the most probable legal use of a property, based on market

evidence as of the date of valuation, expressed in an appraiser’s supported opinion.” 43 C.F.R. § 2200.0-5(k). 

The appraisal must also comply, to the extent appropriate,

with the separate requirements of the Uniform Appraisal Standards for Federal Land Acquisitions. 43 C.F.R. § 2201.3.

Under the Uniform Appraisal Standards definition, highest

and best use is “ ‘[t]he highest and most profitable use for

which the property is adaptable and needed or likely to be

15114 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
needed in the reasonably near future.’ ” The Appraisal Institute, Uniform Appraisal Standards for Federal Land Acquisitions 34 (quoting Olson v. United States, 292 U.S. 246, 255

(1934)), available at http://www.usdoj.gov/enrd/land-ack/

yb2001.pdf. While Department of Interior regulations define

highest and best use as the “most probable” use of land, the

Uniform Standards only require “reasonable probability” of a

given use. Uniform Standards at 34; Desert Citizens, 231 F.3d

at 1181 n.10. Under the Uniform Standards, the highest and

best use must also be: (1) physically possible; (2) legally permissible; (3) financially feasible; and (4) must result in the

highest value. Uniform Standards at 17. 

In Desert Citizens, we examined a highest and best use

claim almost identical to that presented in the instant case.

Desert Citizens, 231 F.3d at 1175, 1180. In Desert Citizens,

a mine operator proposed a land exchange to the BLM in connection with the development of the Mesquite Regional Landfill on and near the Mesquite Mine. Id. at 1175. An appraisal

of the public lands concluded that the highest and best use

was “open space” or “mine support.” Id. At the time of the

appraisal, the mine operator had already applied for county

permits to build the landfill. Id. The district court upheld the

appraisal on the grounds that there was no market demand for

a landfill and that landfill development was an expensive,

risky venture. Id. at 1180. 

[7] We reversed. After analyzing the statutory and regulatory framework regarding highest and best use, we held that

“uses that are reasonably probable must be analyzed as a necessary part of the highest and best use determination. This

analysis must have due regard for the existing business or

wants of the community, or such needs as may be reasonably

expected to develop in the near future.” Id. at 1181 (internal

quotations and citations omitted). We observed that because

the lands in question “were expected to be used for landfill

purposes” and because the “existence of other landfill proposals in the region indicated a general market for landfill develNATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15115
opment,” landfill use was reasonably probable and must “at

the very least” have been considered in the highest and best

use analysis. Id. (emphasis added). 

We then proceeded to analyze the physical, legal, and

financial feasibility of the proposed Mesquite Landfill, in

accordance with the Uniform Appraisal Standards. Id. at

1184. In our discussion of financial feasibility, we held that

“a regional market and the presence of competitors sponsoring similar projects made reasonably probable, prior to the . . .

appraisal, that use of the lands for landfill purposes was financially feasible.” Id. at 1185. Among the other landfill proposals we relied upon as evidence of market demand was the

“Eagle Mountain Regional Landfill proposed by Kaiser.” Id.

[8] The facts of Desert Citizens are virtually identical to the

facts before us in the instant case. Kaiser applied for county

permits before the Yerke appraisal was drafted. The Yerke

appraisal was clearly cognizant of Kaiser’s proposal, yet

explicitly stated that it was not taking “into consideration any

aspect of the proposed landfill project.” Kaiser and the BLM

do not contest the physical or legal feasibility of constructing

a landfill at the Eagle Mountain site. As for financial feasibility, we held in Desert Citizens that the presence of competing

proposals alone is sufficient to establish market demand and

financial feasibility. Id. If the Kaiser landfill proposal was

sufficient to establish a reasonable probability of the Mesquite

Landfill’s financial feasibility, the Mesquite Landfill and

other proposals must demonstrate similar feasibility of the

Kaiser project. 

The BLM tries to distinguish Desert Citizens by arguing

that here, BLM market analyses did not show that there were

other landfill proposals in the area, and therefore there is no

evidence of market demand. This argument distorts the facts

of Desert Citizens and misses the point entirely. Contrary to

the BLM’s assertions, in Desert Citizens we did not look to

the BLM’s own market analyses for proof of market demand.

15116 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
To the contrary, the BLM’s position, as articulated by the district court, was that market demand did not exist. Id. at 1180.

In reversing this determination, we looked not to any BLM

market analysis, but rather to the obvious and well-known

presence of competing landfill proposals. Id. at 1185. Indeed,

we found the appraiser’s willful ignorance of facts of “general

notoriety” “particularly troubling.” Id. at 1182. 

[9] Kaiser and the BLM have failed to distinguish the facts

of this case from those of Desert Citizens.

5

 As such, the high5Kaiser and the BLM rely heavily on a 2002 report compiled by the

Herzog Group as part of the litigation of this case. This report was not

before either the BLM or the Appeals Board. Accordingly, we do not consider it here. See, e.g., Ctr. for Biological Diversity v. U.S. Fish & Wildlife

Serv., 450 F.3d 930, 943 (9th Cir. 2006) (“Parties may not use postdecision information as a new rationalization either for sustaining or

attacking the Agency’s decision.” (internal quotation omitted)). 

The dissent erroneously concludes that the Herzog “appraisal” cured

any deficiency in the Yerke appraisal, and that we should therefore consider the Herzog report under our decision in Friends of the Clearwater

v. Dombeck, 222 F.3d 552 (9th Cir. 2000). Dissent at 15183-84. In Dombeck, we considered supplemental materials presented after the onset of

litigation where a remand would be pointless because a court “could not

order the [agency] to conduct studies already completed to answer questions the [agency] already answered on a basis that could not be successfully challenged.” Id. at 560 (internal quotation omitted). Kaiser argues

that (1) the Herzog report did consider highest and best use, as required

by our decision in Desert Citizens, (2) the BLM has rendered a final decision accepting the Herzog analysis, and (3) the Conservation Association

failed to appeal that “decision.” 

First, we note that Dombeck concerned a NEPA violation, whereas here

we examine a Management Act violation. Dombeck also specifically distinguished suits to compel agency action from challenges, such as that

before us here, to a final agency action. Regardless of these distinctions,

Dombeck is inapplicable because the record does not demonstrate that the

BLM has cured the defects of the Yerke appraisal on a basis that is

immune to challenge. Kaiser points to, and the dissent apparently relies

upon, a letter from a BLM district manager to the State Director in which

the district manager favorably references the Herzog report in the course

of reiterating that the land exchange well serves the public interest. This

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15117
est and best use analysis should have taken the reasonably

probable use of public lands for a landfill into consideration

as part of the highest and best use analysis. As we stated in

Desert Citizens: 

[T]he use of the land as a landfill was not only reasonable, it was the specific intent of the exchange

that it 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. 

231 F.3d at 1184. We therefore affirm the district court’s

grant of summary judgment on the highest and best use claim

under the Management Act.

B. The Public Interest Determination

[10] Under the Federal Land Policy and Management Act,

the BLM must determine that “the public interest will be well

served” by a land exchange before approving such an

exchange. 43 U.S.C. § 1716(a); see also 43 C.F.R. § 2200.0-

6(b). This determination “shall give full consideration to better Federal land management and the needs of State and local

people, including needs for lands for the economy, community expansion, recreation areas . . . and fish and wildlife

. . . .” 43 U.S.C. § 1716(a). A determination that an exchange

well-serves the public interest must be predicated on a finding

that: 

letter hardly establishes that the BLM has cured the Management Act deficiencies of the Yerke appraisal “on a basis that could not be successfully

challenged.” There is nothing in the record to indicate that the BLM has

rendered a final, appealable decision on an appraisal that properly considers landfill use as a highest and best use. Dombeck therefore does not

apply, and we do not consider the 2002 Herzog report. 

15118 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
(1) The resource values and the public objectives

that the Federal lands or interests to be conveyed

may serve if retained in Federal ownership are not

more than the resource values of the non-Federal

lands or interests and the public objectives they

could serve if acquired,[6 ] and (2) The intended use

of the conveyed Federal lands will not, in the determination of the authorized officer, significantly conflict with established management objectives on

adjacent Federal lands and Indian trust lands. Such

finding and the supporting rationale shall be made

part of the administrative record.

43 C.F.R. § 2200.0-6(b). 

[11] The Management Act does not define the term “full

consideration.” Our review is thus limited to the question

whether the BLM’s interpretation of the term is based on a

permissible construction of the statute. Chevron U.S.A., Inc.

v. Nat’l Res. Def. Council, 467 U.S. 837, 843 (1984). We

review the entire record to determine whether the agency’s

decision was based on a reasonable consideration of the relevant factors. Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir.

1999). 

[12] The district court’s analysis was constrained by its

decision to review only the Record of Decision. Having held

that the Appeals Board’s decision, which incorporates the

EIS, is the final agency action under review, we examine a

broader set of materials than did the district court. The Final

EIS alone includes over 1,600 pages of material not considered by the district court, including detailed environmental

analyses. Though we do not necessarily agree with the BLM’s

public interest determination, the record as a whole establishes that the BLM’s interpretation of “full consideration,” as

6

In other words, the BLM must find that the resource values of the public land being conveyed do not outweigh the resource values of the private

land being acquired. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15119
evinced by the analyses in the EIS, is permissible under 43

U.S.C. § 1716(a).7 Accordingly, we reverse the district court’s

determination on this issue.

V. National Environmental Policy Act Claims

[13] The National Environmental Policy Act requires federal agencies to prepare an Environmental Impact Statement

discussing, among other things, the environmental impact of

a proposed action, any adverse environmental effects which

cannot be avoided, and alternatives to the proposed action. 42

U.S.C. § 4332(2)(C). In addition, implementing regulations

require that the agency state the underlying purpose and need

for the proposed action. 40 C.F.R. § 1502.13. Kaiser and the

BLM appeal the district court’s holding that the EIS was deficient with respect to purpose and need, reasonable alternatives, impacts on Bighorn sheep, and eutrophication.8

A. Purpose and Need and Reasonable Alternatives

[14] Agencies enjoy “considerable discretion” to define the

purpose and need of a project. Friends of Southeast’s Future

v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998). However,

“an agency cannot define its objectives in unreasonably narrow terms.” City of Carmel-By-The-Sea v. United States

Dep’t. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). As the

Friends court stated, “An agency may not define the objectives of its action in terms so unreasonably narrow that only

one alternative from among the environmentally benign ones

in the agency’s power would accomplish the goals of the

7

In agreeing with this conclusion, the dissent quotes several examples

of these sufficient Management Act public interest analyses, albeit in the

context of a separate “purpose and need” issue under the National Environmental Policy Act. Dissent at 15144-53. 

8Eutrophication, in this context, refers to the introduction of nutrients to

the desert environment. The eutrophication discussion in this case focuses

on two potential pathways: (1) landfill waste material; and (2) nitrogenbearing airborne emissions. 

15120 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
agency’s action, and the EIS would become a foreordained

formality.” Friends, 153 F.3d at 1066 (quoting Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.

Cir. 1991), cert. denied, 502 U.S. 994, 112 S. Ct. 616, 116 L.

Ed. 2d 638 (1991)) (correction in original). We evaluate an

agency’s statement of purpose under a reasonableness standard. Id. at 1066-67. 

In the case before us, the purpose and need statement reads:

The primary purpose of the Project is to develop a

new Class III nonhazardous municipal solid waste

landfill to meet the projected long-term demand for

environmentally sound landfill capacity in Southern

California; provide a long-term income source from

the development of a nonhazardous municipal solid

waste landfill; find an economically viable use for

the existing by-products at the Kaiser Eagle Mountain Mine site, including use of existing aggregate

and overburden; and provide long-term land use and

development goals and guidance for the Townsite. 

[15] The Conservation Association contends, and the BLM

does not dispute, that the majority of these purposes and

needs respond to Kaiser’s goals, not those of the BLM. Other

circuits have held that agencies must acknowledge private

goals. Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162,

1175 (10th Cir. 1999) (“Agencies . . . are precluded from

completely ignoring a private applicant’s objectives.”); Burlington, 938 F.2d at 196 (“[T]he agency should take into

account the needs and goals of the parties involved in the

application.”). Requiring agencies to consider private objectives, however, is a far cry from mandating that those private

interests define the scope of the proposed project. Instead, as

the Burlington court held:

[A]gencies must look hard at the factors relevant to

the definition of purpose. . . . Perhaps more imporNATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15121
tantly [than the need to take private interests into

account], an agency should always consider the

views of Congress, expressed, to the extent that the

agency can determine them, in the agency’s statutory

authorization to act, as well as in other congressional

directives.

Id. We agree. 

Burlington does not conflict with our decision in City of

Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986). In Angoon,

a private party sought a federal permit to build a log-transfer

facility on its own lands. Id. at 1019. As part of an EIS, the

Army Corps of Engineers (“the Corps”) identified a purpose

and need to provide a “safe, cost effective means of transferring timber harvested on [the privately owned] land.” Id. at

1021. The district court eliminated the private land specification, and restated the purpose and need as “commercial timber

harvesting.” Id. We reversed, rejecting the district court’s

“broad social interest” formulation in favor of the Corps’s

“more balanced” statement. Id. 

Angoon is distinguishable from the situation in the case

before us. In Angoon, the issue was whether the Corps should

issue a permit. Id. at 1017-18. As discussed above, agencies

must look hard at the factors relevant to definition of purpose.

In Angoon, those factors included a regulatory framework far

different from that guiding the BLM here. The relevant Corps

regulations in Angoon explicitly stated that “every application

has both an applicant’s purpose and need and a public purpose

and need” and specified that a Corps EIS must document

alternatives “which would satisfy the purpose and need . . . for

which the applicant has submitted his proposal.” Id. at 1021

(citing 33 C.F.R. pt. 230, App. B(11)(b)(4)-(5) (1985)

(emphasis added)). We therefore held that the Corps’s purpose and need statement, which emphasized private goals,

reasonably balanced the relevant factors. Id.

15122 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
[16] In contrast, the Department of Interior has promulgated no regulations emphasizing the primacy of private interests. The DOI analogue to the Corps’s regulation, 40 C.F.R.

§ 1502.13, merely requires that an EIS “briefly specify the

underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed

action.” Furthermore, DOI’s NEPA guidelines take the exact

opposite approach to that of the Corps regulations in Angoon.

DOI’s NEPA handbook explains that the “purpose and need

statement for an externally generated action must describe the

BLM purpose and need, not an applicant’s or external proponent’s purpose and need.” Department of Interior, Bureau of

Land Management, National Environmental Policy Act Handbook 35,(citing 40 C.F.R. § 1502.13) (emphasis added),

available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/

Information_Resources_Management/policy/blm_handbook.

Par.24487.File.dat/h1790-1-2008-1.pdf (citing 40 C.F.R.

§ 1502.13) (emphasis added). “The applicant’s purpose and

need may provide useful background information, but this

description must not be confused with the BLM purpose and

need for action . . . . It is the BLM purpose and need for

action that will dictate the range of alternatives . . . .” Id. 

The BLM’s definition of the project’s purpose will necessarily affect the range of alternatives considered, because

when “the purpose is to accomplish one thing, it makes no

sense to consider the alternative ways by which another thing

might be achieved.” Angoon, 803 F.2d at 1021. Our task is to

determine whether the BLM’s purpose and need statement

properly states the BLM’s purpose and need, against the background of a private need, in a manner broad enough to allow

consideration of a reasonable range of alternatives. In the case

before us, the purpose and need statement sets out four goals:

(1) to meet long-term landfill demand; (2) to provide a longterm income source from a landfill; (3) to find a viable use for

mine byproducts; and (4) to develop long-term development

plans for the Townsite. The first, to meet long-term landfill

demand, is unquestionably a valid BLM purpose. The remainNATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15123
ing three goals, however, can hardly be characterized as BLM

needs. Kaiser and its successors in interest, not the BLM, will

be the recipient of any long-term income from the landfill.

That the BLM does not find a viable use for Kaiser’s mine

byproducts is undoubtedly attractive to Kaiser, but hardly

necessary to the BLM. Kaiser, not the BLM, currently operates the Townsite, in which it stands to receive a fee interest,

and would be the beneficiary of any long-term development

plans. 

The purpose and need statement, though it includes one

BLM goal, also sets out three private objectives as defining

characteristics of the proposed project. Such a narrowly

drawn statement necessarily and unreasonably constrains the

possible range of alternatives. The BLM considered only six

alternatives in detail: (1) No action; (2) Reduced volume of

waste; (3) Alternate road access; (4) Rail access only; (5)

Landfill on Kaiser land only; and (6) Landfill development

without Townsite development. All of these options, save the

No Action alternative, would result in landfill development of

some sort and would require some portion of the land

exchange to occur. 

The BLM proposed several alternatives that would have

been responsive to the need to meet long-term landfill

demand, such as a landfill on other Kaiser property, waste

diversion, offsite landfill locations, landfill mining, alternative

Townsite locations, and alternative Townsite uses. The BLM

did not, however, consider these options in any detail because

each of these alternatives failed to meet the narrowly drawn

project objectives, which required that Kaiser’s private needs

be met. 

[17] Our holdings in Friends and Carmel-By-The-Sea forbid the BLM to define its objectives in unreasonably narrow

terms. The BLM may not circumvent this proscription by

adopting private interests to draft a narrow purpose and need

statement that excludes alternatives that fail to meet specific

15124 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
private objectives, yet that was the result of the process here.

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.9 As a result of this unreasonably narrow purpose and need statement, the BLM necessarily

considered an unreasonably narrow range of alternatives. We

therefore affirm the district court’s grant of summary judgment on both the “purpose and need” and “reasonable range

of alternatives” claims under NEPA. 

B. Bighorn Sheep

[18] Under NEPA, an EIS must contain a “reasonably thorough” discussion of an action’s environmental consequences.

State of California v. Block, 690 F.2d 753, 761 (9th Cir.

1982). An EIS must “provide full and fair discussion of significant environmental impacts.” 40 C.F.R. §1502.1. Our

review is limited to whether an EIS took a “hard look” at the

environmental impacts of a proposed action. Id. We must

make a “pragmatic judgment whether the EIS’s form, content

and preparation foster both informed decision-making and

informed public participation.” Block, 690 F.2d at 761. 

[19] Contrary to the district court’s conclusion, we find that

the EIS contains extensive analyses of potential impacts on

Bighorn sheep, including migration patterns, habitat loss, and

water accessibility. The district court cited two particular deficiencies with respect to Bighorn sheep. The district court

9The dissent conflates two unrelated issues: (1) adequacy of the purpose

and need statement under NEPA and (2) adequacy of the public interest

determination under the Management Act. Dissent at 15149-50. Whether

the BLM gave full consideration to public interest factors, however, has

no bearing on the sufficiency of the EIS under NEPA. The dissent concludes that so long as the BLM properly concluded that the project is in

the public interest, there is no NEPA violation—that is, that the ends justify the means. We disagree. The fact that a private pursuit may also ultimately benefit the public interest does not in and of itself compel the

government to pursue the private objective. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15125
found that the EIS did not address the potential impact of

tortoise-proof fencing on sheep migration patterns and failed

to specify what a proposed “buffer zone” would entail. 

[20] The EIS does, however, contain the information the

district court believed was missing.10 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.11 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.”

12 Though

the EIS does not “exactly specify” what the buffer zone

entails, it does contain a “reasonably complete” discussion of

this mitigation measure. See Okanogan Highlands Alliance v.

Williams, 236 F.3d 468, 473 (9th Cir. 2000) (holding that an

EIS must include a “reasonably complete discussion of possible mitigation measures.”). We are not authorized to substitute our judgment for that of the agency. Block, 690 F.2d at

761. Having concluded that the BLM did take a “hard look”

at Bighorn sheep, our review is at an end. Id. We reverse the

district court on this issue. 

C. Eutrophication

[21] We apply the same analysis to the district court’s conclusion that the EIS insufficiently addressed the potential for

eutrophication, or introduction of nutrients into the desert

10The Final EIS incorporated the earlier Draft EIS. 

11Other evidence in the record indicates that fencing of this type is eighteen inches high; high enough to restrict tortoise movement but low

enough to present no obstacle to Bighorn sheep. 

12The Riverside County Specific Plan clarifies that the 644 acre area

will provide a buffer between sheep and the footprint of the landfill. 

15126 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
environment. Unlike its discussion of Bighorn sheep, the EIS

contains no specific discussion of eutrophication. The BLM

argues that the relevant discussion is present in other, scattered sections of the EIS. The EIS does, for example, discuss

“Biological Resources” and “Air Quality.” The “Biological

Resources” section discusses mitigation measures, such as

daily cover of the working face of the landfill, that will reduce

“increased food availability.” The same “Biological

Resources” section references a separate “Air Quality” section, which calculates potential levels of nitrate production, to

support the conclusion that atmospheric nitrate deposition

resulting from landfill operations will be dwarfed by other

sources in the Los Angeles Basin. The EIS therefore concludes that nitrate deposition from landfill sources will have

no effect on Joshua Tree’s ecosystem. 

[22] In determining whether an EIS fosters informed

decision-making and public participation, we consider not

only its content, but also its form. Block, 690 F.2d at 761.

Here, the discussion of eutrophication is neither full nor fair

with respect to atmospheric eutrophication. A reader seeking

enlightenment on the issue would have to cull through

entirely unrelated sections of the EIS and then put the pieces

together. To find the brief discussion of atmospheric eutrophication, a reader must begin in the“Biological Resources” section, which then refers to data from the “Air Quality” section,

and then with respect to effects only on Joshua Tree, not the

surrounding area. Rather than address eutrophication up front,

the BLM instead attempts to cobble together a “hard look”

from various other analyses as varied as air quality and disease vector control. This patchwork cannot serve as a “reasonably thorough” discussion of the eutrophication issue.13 We

13The dissent’s contention that eutrophication is “not a serious issue” is

at odds with the analyis of both the National Park Service and the IBLA.

The National Park Service found the eutrophication issue sufficiently serious as to merit an official comment, as the dissent itself points out. Dissent

at 15161. The IBLA did not take the position that eutrophication is unimNATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15127
therefore affirm the district court’s decision on this NEPA

claim. 

VI. Cross-Appeal 

[23] The Charpieds cross-appeal the district court’s determination that they lacked standing to pursue their claim

against the National Park Service (“Park Service”) under

NEPA, the National Park Service Organic Act, 16 U.S.C. § 1,

and the California Desert Protection Act, 16 U.S.C. § 410aaa,

et seq. The Charpieds also appeal the district court’s grant of

summary judgment to Kaiser and the BLM on NEPA claims

concerning the EIS’s sufficiency regarding desert tortoises,

visual, noise, and night lighting impacts, groundwater, and air

quality. We affirm the district court on all issues on crossappeal.

Although the BLM was required to solicit the Park Service’s input on the EIS, 40 C.F.R. § 1503.1, the BLM did not

need the Park Service’s approval to complete the land

exchange. The Park Service was involved in the Kaiser proposal only as a cooperating agency. NEPA regulations distinguish lead agencies from cooperating agencies. 40 C.F.R.

§ 1501.6. Cooperating agencies must, at the request of the

lead agency, help prepare environmental analyses, including

portions of the EIS. Id. In October 1996 the Park Service recportant, but instead concluded that the EIS adequately took a “hard look”

at the issue. 

The dissent contends that the EIS contains a “map” to the eutrophication issue that is sufficient to meet the “hard look” requirement.” Dissent

at 15161. Whether the dissent or a reviewing court, examining an EIS with

the benefit of law clerks and post-hoc rationalizations from counsel, is

able to follow a tortuous map to the buried treasure of a eutrophication

discussion is not the question. In examining an EIS, we must make a

“pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.”

Block, 690 F.2d at 761 (emphasis added). 

15128 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
ommended that the BLM reject the Kaiser proposal and stated

that the Draft EIS did not sufficiently address certain environmental impacts. In December 1996 the Park Service changed

its position, and supported the EIS and Kaiser proposal. 

Standing requires three elements: (1) actual or imminent

injury in fact; (2) a causal connection between the injury and

the conduct complained of; and (3) likelihood that a favorable

decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). The Charpieds argue that

the Park Service’s reversal constituted a procedural violation

under NEPA, the California Desert Protection Act, and the

National Park Service Organic Act, and that relaxed standards

of redressability should apply. See Lujan, 504 U.S. at 572 n.

7. The Charpieds, however, have not identified any violation

of a procedural duty by the Park Service.14 The relaxed standard therefore does not apply. A favorable decision would not

redress the injury complained of because the Park Service is

not the lead agency responsible for approving the Kaiser project. Even if the Park Service were to rescind its approval of

the landfill project, the BLM, as the lead agency, would be

free to move forward. Accordingly, we affirm the district

court’s holding that the Charpieds lack standing under NEPA,

the National Park Service Organic Act, and the California

Desert Protection Act. 

Lastly, we briefly address the Charpieds’ impact-specific

NEPA claims. As discussed above, our review is limited to

whether the EIS took a “hard look” at the landfill’s potential

environmental impact. Block, 690 F.2d at 761. In challenging

the EIS’s discussion of desert tortoises, visual, noise, and

night lighting impacts, groundwater, and air quality, the Charpieds take issue with the EIS’s methodology and ultimate

conclusions. Without taking a position on those conclusions,

14To the extent that the Park Service may have assumed a contractual

duty to assist the BLM, the Charpieds cannot demonstrate that they are

third party beneficiaries. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15129
we find that the EIS’s discussion of these issues is sufficient

to foster informed decision-making and public participation.

We therefore affirm the district court’s grant of summary

judgment on these NEPA claims, as well as its dismissal of

the Charpieds’ complaint against the Park Service.

VII. Conclusion

The judgment of the district court is AFFIRMED in part

and REVERSED in part. This case is REMANDED for further proceedings consistent with this opinion. Each side shall

bear its own costs on appeal. 

15130 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Volume 2 of 2

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15131
TROTT, Senior Circuit Judge, dissenting:

What sane person would want to attempt 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, but nothing that compares to the “due process”

of unchecked environmental law. Not the Cyclops, not the

Sirens, and not even Scylla and Charybdis can measure up to

the obstacles Kaiser has faced in this endeavor. The record

here exceeds 50,000 pages. At the beginning, Kaiser had a

partner, Browning-Ferris Industries (“BFI”), but BFI — a

company experienced in the field of solid waste disposal —

dropped out after investing $45 million in the project with

nothing to show for it in return. I agree with my colleagues

insofar as they dispense with the cross-appeal and the public

interest and bighorn sheep issues, but I dissent with respect to

the rest. The final irony is that my colleagues send the case

back to the Bureau of Land Management (“BLM”) to do

something BLM has already adequately done: consider the

value of the land involved as a commercial landfill.

I

BACKGROUND

Kaiser’s proposed landfill formally began in 1989 — 20

years ago — when it filed an application with BLM for a land

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15135
exchange to facilitate the construction of what it called the

Eagle Mountain Landfill. From 1948 to 1983, Kaiser had

operated an iron ore mine on 5,000 isolated acres of land it

owned or controlled in Riverside, California. In 1989, Kaiser

sought to acquire federal lands as part of an exchange that

would facilitate the Eagle Mountain project. The landfill

would have been the first to comply with new Environmental

Protection Agency guidelines. The federal land Kaiser sought

mostly encircled the spent mines. Sixty percent of the targeted

federal land is classified as mountainous. Kaiser in turn

offered 2,846 acres of mostly flat desert land to become part

of the California Desert Conservation Area located about 1.5

miles from the border of Joshua Tree Natural Park (“JTNP”),

and twenty miles from the park’s nearest visitor center. The

proposed landfill would accept municipal, non-hazardous,

solid waste from seven Southern California counties, to be

delivered mostly by train. 

In 1994, the State Superior Court in San Diego County further described this project as follows: 

“[Kaiser’s] mining operation resulted in the excavation of three large open pits; each[ ] one to two miles

long. The mining operation ceased in 1983, and Kaiser has leased the mine site to the prospective operator of the landfill.

“[Kaiser/Mine Reclamation Corp.] plans to utilize

the open pits left from the mining operation to create

what all parties have agreed is the largest landfill in

the country. The landfill footprint will encompass

approximately 2,262 acres within a larger project

area of 4,654 acres. The landfill will have the capacity to accept up to 20,000 tons per day of wastes for

a minimum of 115 years.

“The landfill will receive most of the waste from

Los Angeles and other Southern California counties.

15136 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Ninety percent of the garbage will be shipped by rail

and the balance by truck. All waste will be delivered

after processing at materials recovery facilities

(MRF’s) which accept delivery of trash from homes

and businesses and compact the waste into containers for transportation.

“The landfill accepts only nonhazardous solid

waste and inert wastes that have been processed

through MRFs. The Draft EIR states a typical MRF

would require about 10 to 30 acres and an enclosed

structure of about 100,000 square feet. [ ] The garbage is delivered to the MRF by truck and dumped

on the floor of the structure. Workers sort through

the waste and remove unacceptable materials such as

hazardous waste, sewage sludge, radioactive, biological or infectious waste, and other materials needing

special handling. Recyclable materials may be

recovered. The remaining wastes are compacted and

packaged into containers that hold up to 25 tons each

and then loaded onto rail cars, each of which holds

10 containers. The containers are then transported to

the landfill. [ ] Approximately 10 percent of the

wastes will be transported by truck rather than rail.”

Nat’l Parks & Conservation Ass’n v. County of Riverside, 50

Cal. Rptr. 2d 339, 342 (Cal. Ct. App. 1996). 

I do an injustice to the record by attempting to summarize

the legal hurdles Kaiser has negotiated in its thus-far vain

attempt to accomplish its goals — at a cost now in excess of

$50,000,000 — but here goes.1

1

I apologize to the reader for including extensive parts of the record in

my opinion, but the record — overlooked in large measure in the majority’s opinion and the district court — is what this case is all about. Unfortunately, the huge excerpt of record will not be routinely circulated to the

rest of the Ninth Circuit in connection with an en banc call, so it is here

that I must prove the validity of my conclusions. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15137
First, the permits. After a lengthy public hearing process,

Riverside County issued all local land use approvals, including a zoning change. Then, California’s South Coast Air

Quality Management District approved permits for air emissions from the project. Next the United States Fish and Wildlife Service evaluated the potential impacts of the project on

threatened or endangered species and thrice issued a “no jeopardy” opinion. The permits were approved only after searching inquiries by the issuing agencies. All the environmental

laws were addressed. 

Then, the matter turned into a lawsuit in state court. See

Nat’l Parks & Conservation Ass’n v. County of Riverside, 84

Cal. Rptr. 2d 563 (Cal. Ct. App. 1999). Two Superior Court

trials later, and after the Draft EIS/EIR had been redone, the

California Court of Appeal ruled that Riverside County and

BLM had adequately addressed all environmental concerns

under California law. This was the second state appeal in this

dispute. In many respects, California’s environmental laws

are more demanding than their federal counterparts. 

Moreover, Kaiser had actively engaged the National Park

Service (“NPS”) in an ongoing process designed to protect

Joshua Tree National Park. As described by the Interior Board

of Land Appeals (“IBLA”), the agreement reached “gives

NPS precisely what they had requested as early as 1992 — a

comprehensive, long-term monitoring and mitigation program, which runs for the life of the project and is specifically

tailored to detect and to address any unforeseen impacts on

JTNP.” This is how the IBLA described the National Park

Service’s involvement: 

When the decision was made [in 1995] to prepare

the new EIS/EIR, BLM invited the NPS to participate as a “cooperating agency” in the preparation of

the new document — a role that would recognize

NPS’ special expertise in evaluating impacts on the

newly designated JTNP.

15138 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
At the scoping stage, the NPS submitted a 12-page

letter outlining issues that it wanted to see addressed

in the EIS/EIR. With the assistance of the consultant

preparing the EIS/EIR, BLM reviewed these issues

one by one, held a series of meetings with the NPS

staff, and incorporated many of the NPS’s recommendations into the Draft EIS/EIR. Before the Draft

EIS/EIR was issued, BLM provided an “administrative draft” of the document to NPS for review, and

the NPS provided more than 150 pages of comments. Again, BLM responded point by point to

NPS’s comments in a 34-page response. BLM

accepted many of the NPS’s recommendations and

provided detailed explanations for those it declined

to accept. When the Draft EIS/EIR itself was issued,

the NPS submitted a third round of comments, even

more detailed than the last. Again, BLM painstakingly reviewed the NPS’s comments and addressed

each of them.

As the new EIS/EIR was being prepared, the NPS

again raised the issue of the project’s potential

unknown and unpredictable impacts, as it had in

1992. To address this concern, [Kaiser] MRC

revived an idea that the NPS itself had proposed during preparation of the first EIS/EIR — namely,

entering into an agreement that would establish a

long-term mitigation and monitoring program. Over

the next 18 months, MRC and the NPS engaged in

extensive discussions to develop a detailed, enforceable agreement. In the end, MRC and NPS entered

into a binding agreement that gives NPS precisely

what they had requested as early as 1992 — a comprehensive, long-term monitoring and mitigation

program, which runs for the life of the project and is

specifically tailored to detect and address any

unforeseen impacts on JTNP. While the NPS made

it clear that it would prefer to avoid any industrialNATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15139
type activity at the mine site, the agency agreed that

if the landfill project were to go forward, the agreement with MRC provided the appropriate safeguards

for addressing NPS’s concerns about any gradual,

long-term impacts (which cannot be accurately predicted).

(quotation omitted). 

Furthermore, a Technical Advisory Panel composed of

eminent scientists and engineers from major California Universities was called in to look at the project and concluded:

“[T]he designers have done essentially all that is

humanly possible to make this a safe landfill that

will be protective of . . . the underlying and surrounding environment. Given the favorable site conditions, sophisticated waste containment systems,

and elaborate monitoring systems, the proposed

Eagle Mountain Landfill could well become one of

the world’s safest landfills and a model for others to

emulate.

(emphasis added). 

County officials similarly noted that Kaiser had “overdone

its mitigation” and had “bent over backwards in addressing all

of the impacts which have been brought up by previous commissions, by the courts, by our staff, and by this particular

commission.” 

The final Environmental Impact Statement prepared for this

project consists of (1) a 900-page Draft EIS (“DEIS”), which

details the potential environmental impacts of the project, the

range of alternatives that were considered, and proposed mitigation, and (2) a 1600-page Final EIS (“FEIS”), produced following extensive and exhaustive public comment on the

DEIS. The required National Environmental Policy Act

15140 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
(“NEPA”) documents were issued jointly by the BLM and

Riverside County in 1996, 13 years ago. In 1999, the IBLA

issued a thirty-two page opinion affirming BLM’s decisions.

But, we are just getting started. The same plaintiff who lost

in state court filed this federal lawsuit, in 1999 — 10 years

ago. The case took over five years in district court simply to

get to summary judgment! It took the court three years to rule

on the completed motions, and, here 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 — ten years after the IBLA’s opinion.

How many of the people who started this project are still

employed by Kaiser, are still in public service, or for that matter, are still alive? Yet, the process has developed an eternal

life of its own as full-employment for all swept along with or

by it. 

Now, in an opinion that is not only not supported by the

record, but 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. 

II

PURPOSE AND NEED / PUBLIC INTEREST /

CONSIDERATION OF ALTERNATIVES

A.

Purpose and Need

My colleagues’ opinion concluding that BLM’s Statement

of Purpose and Need for the project is defective completely

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15141
misunderstands the purpose of this requirement in a setting

where a private entity approaches a government entity with a

joint proposal that will benefit both. Of course there is a private purpose driving this project. But the project benefits both

parties, not just Kaiser. To isolate one without factoring in the

other is patently illogical. To illustrate the folly of this fallacy,

all one has to do is examine the IBLA’s opinion outlining the

habitat benefits of this exchange to fish and wildlife and

threatened and endangered species. Here, however, is how

BLM’s goal reads in the Introduction of the Draft EIS/EIR: 

1.3.1 Project Purpose and Need

The primary purpose of the Project is to develop

a new Class III nonhazardous municipal solid waste

landfill to meet the projected long-term demand for

environmentally sound landfill capacity in Southern

California; provide a long-term income source from

the development of a nonhazardous municipal solid

waste landfill; find an economically viable use for

the existing mining by-products at the Kaiser Eagle

Mountain Mine site, including use of existing aggregate and overburden; and provide long-term land use

and development goals and guidance for the Townsite.

Several recent studies documenting the need for

additional landfill capacity in Southern California

indicate that additional capacity is needed to meet

the long-term demands (i.e., 1995 to 2050) and possible short-term needs (i.e. 1995 to 2000) of the

Southern California region (California Integrated

Waste Management Board [CIWMB],1992;

CIWMB, 1994, Draft Countywide Siting Elements

— for the seven counties viewed as potential sources

of waste for the proposed landfill — 1995 and 1996).

Additional capacity is also required for counties and

municipalities in Southern California to satisfy the

15142 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
legal requirements of AB 939 to demonstrate adequate waste disposal capacity. The solid waste

capacity in southern California changes often due to

a number of factors, including: (1) the closure of

small, ineffective landfills as new regulations take

effect; (2) the development of larger regional sites;

(3) the uncertainty of permitting efforts of new and

expanded landfills; (4) litigation over land use issues

of landfills and (5) the privatization of publicly

owned landfills. These factors necessitate that cities

and counties undertake long-term planning to ensure

that adequate capacity is available.

The discussion below of waste capacity in the

Southern California region is based on projected

short-, medium-, and long-term needs. Future needs

are based on several continuing and changing trends:

(1) increase in population (California’s population is

expected to more than double from its current 30

million to more than 60 million by the year 2040

[California Department of Finance, 1993]); (2)

expanded waste diversion and recycling, which is

reducing the amount of material being disposed of in

landfills; and (3) landfill closures and development

proposals that will affect future disposal capacity. 

This section then takes 12 pages reviewing and analyzing

a “critical” landfill capacity shortfall in Southern California,

focusing on the counties of Los Angeles, San Bernardino,

Riverside, Orange, Santa Barbara, Ventura, and San Diego —

the seven counties within the proposed landfill’s service area.

The detailed discussion highlights a critical need for “additional disposal capacity” in the service area. During this particularized discussion, Kaiser’s obvious pecuniary goals are

nowhere in sight. 

In the final EIS/EIR, we discover that the need for landfill

capacity had increased since the Draft. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15143
The result-oriented notion that BLM has “narrowly drawn”

this statement of purpose and need is utterly wrong. Of course

BLM acknowledged Kaiser’s purpose — the law requires

BLM to do so! For private, non-federal proposals, “[a]gencies

. . . are precluded from completely ignoring a private applicant’s objectives.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d

1162, 1175 (10th Cir. 1999) (involving Vail Associates

expansion of its existing ski area into the White River

National Forest); see also Citizens Against Burlington, Inc. v.

Busey, 938 F.2d 190 (D.C. Cir. 1991). Read with an open

mind, this statement suffers from no defects whatsoever.

B.

Public Interest

Furthermore, my colleagues’ opinion inexplicably excludes

from the evidence it draws upon to support its errant conclusion — that the Purpose and Need Statement is wanting — an

important requirement of BLM’s decision-making process:

the statutory requirement that it conclude “that the public

interest will be well served by making that exchange.” Federal

Land Policy and Management Act of 1976 (“FLMPA”), Pub.

L. No. 94-579, § 206(a), 90 Stat. 2743, codified at 43 U.S.C.

§ 1716(a) (1994). The Code of Federal Regulations is quite

specific about what must go into a “public interest” determination. 

BLM must consider

the opportunity to achieve better management of

Federal lands, to meet the needs of State and local

residents and their economies, and to secure important objectives, including but not limited to: Protection of fish and wildlife habitats, cultural resources,

watersheds, wilderness and aesthetic values;

enhancement of recreation opportunities and public

access; consolidation of lands and/or interests in

15144 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
lands, such as mineral and timber interests, for more

logical and efficient management and development;

consolidation of split estates; expansion of communities; accommodation of land use authorizations;

promotion of multiple-use values; and fulfillment of

public needs. In making this determination, the

authorized officer must find that . . . [t]he intended

use of the conveyed Federal lands will not, in the

determination of the authorized officer, significantly

conflict with established management objectives on

adjacent Federal lands and Indian trust lands. Such

finding and the supporting rationale shall be made

part of the administrative record.

43 C.F.R. § 2200.0-6(b) (1988). 

The record shows that BLM made such a careful determination, as reflected in the IBLA’s opinion rejecting the

NPCA’s and the Charpieds’ allegations to the contrary: 

As noted above, contrary to NPCA’s assertions

(Reply Brief at 3), BLM’s decision documents and

supporting Draft and Final EIS/EIR contain extensive discussions of the [public interest] factors set

out in 43 C.F.R. § 2200.0-6(b). That record shows

that the acquired private lands have substantial

value as habitat for threatened and endangered species, so that acquiring them serves the purpose of

protection of fish and wildlife habitats. The position

of those lands relative to current Federally-owned

habitat means that their acquisition will allow for

more logical and efficient management and development. We also recognize that, apart from the direct

benefits of acquiring the parcels of offered private

lands, approval of the exchange promotes the Project, which undeniably meets the “needs of State and

local residents and their economies” by allowing

both a 100-year waste disposal facility for a major

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15145
metropolitan area, as well as economic development

of the Project area. BLM may properly consider

these factors as part of its obligation to promote

multiple-use values, to fulfill public needs, and to

expand communities.

Under section 206(a) of FLPMA, the Department

must also find “that the values and the objectives

which Federal lands or interests to be conveyed may

serve if retained in Federal ownership are not more

than the values of the non-Federal lands or interests

and the public objectives they could serve if

acquired.” There is no doubt that the Federal lands

and interests to be conveyed here (the selected public

lands) have been greatly reduced in value due to

their proximity to Kaiser’s mine and its spoil piles,

tailing ponds, etc. (Appraisal Report Vol. I at 9-13.)

Further, these lands are encumbered by mining

claims held by KEM, such that they may be mined

or even patented. Id. at 15. Against this background,

it is evident that disposal of these lands in exchange

for wildlife habitat plainly entails a net gain for the

public.

(emphasis added). 

My colleagues’ opinion also ignores another section of the

DEIS’s articulation of the Project’s purpose and need involving the benefits to Riverside County, where it will be located:

1.3.2.1 County of Riverside

The proposed County action is based on the County’s authority for reviewing land use applications

(i.e., Specific Plans for the proposed landfill and the

Townsite) for the proposed landfill and the Townsite. In making a decision on the pending land use

15146 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
applications, the County will consider the following

County objectives.

• Provide the County and jurisdictions within the

County with environmentally sound, long-term

disposal capacity for waste generated within the

County.

• Provide the County with income from the disposal fees for out-of-county waste disposed of at

the site. Provide for the acquisition and preservation of valuable open space lands in environmentally sensitive areas, for the preservation and

enhancement of biological, scenic, and cultural

resources in the County, and research and education concerning conservation of natural

resources. This activity will be funded through

the contribution of one dollar per ton of waste

deposited at the landfill into a mitigation monitoring trust fund administered by the County.

• Reclaim lands disturbed by previous mining

activities.

• Assist jurisdictions within the County that use the

site for solid waste disposal to meet the long-term

landfill capacity as set forth by state law (AB

939).

• Provide a remote, regional municipal solid waste

landfill that allows transportation of waste primarily by rail and uses existing transportation

infrastructure.

• Provide long-term disposal capacity to allow the

County to continue closing existing unlined landfills within the County.

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15147
In evaluating this project in terms of the its purpose and the

public interest, BLM added this worthy consideration: 

Based on economic reports prepared by experts, the

Project is projected to generate $210 to $280 million

in revenue to the county in the first twenty years of

operation. That additional revenue can be used to

provide needed federal services to the residents of

Riverside County. The Project will also support or

save, on an annual basis, an average of 1,354 jobs in

the county during the first 20 years. The overall economic impact during the next twenty years to the

county is projected to be in excess of $3 billion. 

Also, 

The Project will be the only landfill in Riverside

County which meets current groundwater protection

and other current state and federal environmental

protection requirements, thus providing sufficient

waste disposal capacity to enable the county to close

existing landfills that do not meet current state and

federal regulations.

(emphasis added).

This is what BLM’s district manager had to say about the

value of this project to the United States in his feasibility

report dated February 8, 1993: 

Public Benefits and Relationship to Land Use

Planning

The public lands are identified for disposal and the

private lands are recommended for acquisition under

the California Desert Conservation Area (CDCA)

Plan, as amended. The offered private lands are

within and adjacent to the Chuckwalla Bench and

15148 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Dos Palmas/Salt Creek Areas of Critical Environmental Concern and Orocopia Mountains Wilderness

Study Area designated in the CDCA Plan. Respectively, these areas contain important habitat for the

desert tortoise, a Federally listed threatened species,

and riparian habitat supporting[ ] the desert pupfish,

a Federally listed endangered species. The land

exchange would secure important habitat for these

species. 

He augmented his favorable opinion in 1997 in his Notice

of Decision asking for public comment: 

The non-Federal lands to be acquired by the

United States are located within and adjacent to the

Chuckwalla Bench and Dos Palmas/Salt Creek Areas

of Critical Environmental concern. Respectively,

these areas contain important habitat for the Desert

Tortoise, a federally listed threatened species, and

habitat supporting two federally listed endangered

species, the Yuma Clapper Rail and Desert Pupfish.

The Federal lands being conveyed consist of

highly disturbed lands in and around the Eagle

Mountain Iron Ore Mine located north of Desert

Center, California. The Federal lands will be used to

facilitate the proposed development of the Eagle

Mountain Landfill and Recycling Center Project, a

Class III non-hazardous municipal solid waste landfill in Riverside County. Disposal of the Federal

lands is consistent with the California Desert Conservation Area Plan of 1980, as amended. The public

interest will be well served by making the exchange.

In summary, my colleagues’ opinion suffers from a fundamental flaw in its quarantined analysis of two interrelated

issues, the purpose and need for the project, on one hand, and

whether the exchange of federal land serves the public interest

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15149
on the other. They grudgingly conclude that the BLM adequately determined that the public interest is served by the

landfill, but, in the same breath, they claim to have found a

defect in BLM’s articulation of the project’s purpose and

need. How can a project that satisfies the rigorous public

interest demands of the exchange law fail because its purpose

and need over represents primarily private goals and objectives? It is a mistake to approach these two statutory requirements as separate and independent from each other, especially

in a case such as this where the exchange is between a private

entity and a public interest. Of course Kaiser has its own goals

it hopes to accomplish from this project, and of course it

hopes to make a profit, but it seems blindingly apparent that

its goals dovetail with the public’s need for a landfill, and

especially a landfill such as this that not only meets and far

exceeds our laudable environmental expectations, but greatly

enhances, by the acquisition of 2,846 acres, contiguous federal land that protects endangered species living on it. 

The Record of Decision says this about value to BLM: 

4.2 Acquisition of Important Wildlife Habitat: The proposed land exchange presents an opportunity for BLM to achieve better management of

Federal lands by allowing BLM to consolidate Federal ownership of land that contains habitat for listed

species. In the land exchange, BLM would acquire

approximately 2,846 acres of Kaiser lands, which

contain important habitat for the desert tortoise, a

Federally listed threatened species, and for the desert

pupfish, a Federally listed endangered species, and

for other environmentally sensitive species. In addition to the lands acquired as part of the land

exchange, BLM also would acquire approximately

400 acres of desert tortoise habitat for mitigation of

impacts caused by the Project. This land would be

purchased by the applicant, and then would be conveyed in fee to BLM as mitigation for the loss of 160

15150 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
acres of tortoise habitat, which would be used for

widening and extending the Eagle Mountain Road as

part of the Proposed Action. Given the lands to be

acquired, including the mitigation land, the land

exchange would further BLM’s objective of securing

additional protection of important habitat for sensitive species.

The Kaiser lands to be acquired by BLM in the

land exchange are located in four geographic areas

(see Exhibit “B”). The location of these lands, and

the environmental benefits associated with their

acquisition, are summarized a follows:

Group A: Salt Creek (Dos Palmas) ACEC

T. 8 S., R. 11 E. 

Section 13: NE1/4 

Section 21: E1/2E1/2SE1/4 

Section 23: Described in metes and

bounds.

These three parcels are located in the vicinity of

the Salt Creek (Dos Palmas) Area of Critical Environmental Concern (ACEC). The entire ACEC area

of about 14,000 acres includes both Federal and private lands and is popularly referred to as Salt Creek

(Dos Palmas) ACEC, even though the ACEC only

includes the Federal lands. One of the management

objectives in the Salt Creek (Dos Palmas) area is to

acquire private lands for the management of various

palm oases and seeps that provide habitat for the

desert pupfish and Yuma clapper rail, both Federally

listed endangered species. Over 3,200 acres have

been acquired or are in the process of being acquired

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15151
by BLM. All three of Kaiser’s parcels will contribute

to consolidating Federal lands, thus enhancing management of the area. The parcel in Section 23 contains desert pupfish habitat along a tributary to Salt

Creek.

Group B: Orocopia Mountains Wilderness

T. 7 S., R. 12 E. 

Section 35: Described by metes and

bounds 

Section 36: N1/2SW1/4, SE1/

4NW1/4, S1/2NE1/4 

T. 7 S., R. 13 E. 

Section 31: Described by metes and

bounds

These three parcels are located on the southern

boundary of the Orocopia Mountains Wilderness

Area. They are not contiguous to the Wilderness

Area. However, consolidation of Federal lands in

this area would simplify land management and

enhance recreational opportunities. These parcels are

in an area designated by the USFWS as critical habitat for the desert tortoise under the Endangered Species Act. A population of approximately 50 Nelson’s

bighorn sheep occurs in this area and another population of approximately 100-200 sheep occurs in the

Chocolate Mountains to the south. These populations

migrate between the mountain ranges in the vicinity

of the parcels. Nelson’s bighorn sheep is a State of

California fully protected species and a BLM sensitive species. Populations of Orocopia Sage, a Federal

species of concern, occur on all three parcels. Acqui15152 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
sition of Kaiser’s parcels would block up a large area

of BLM managed lands and enhance management of

lands used by migrating bighorn sheep.

In summary, my colleagues’ opinion’s claim that BLM

“foreordained” the approval of this exchange is indefensible

in terms of the record.

C.

Consideration of Alternatives

These egregious errors are then improperly used to force

the declamatory conclusion that BLM’s consideration of a

“range of alternatives” was “similarly unreasonable” and

defective. This is easily demonstrated to be wrong simply by

reading the record, which contains a pithy section discussing

a range of alternatives. Identified and discussed at length are

the following:

Alternatives Considered in Detail

1. No action 

-Status quo 

2. Reduced volume of onsite disposal 

3. Alternate road access 

-No new road construction 

4. Rail access only

-Elimination of hauling trucks 

5. Landfill on Kaiser land only 

-No land exchange / small landfill footprint

6. Landfill development / no Townsite development 

-No resuscitation of the existing Townsite

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15153
Alternatives Considered But Eliminated

1. Landfill on other Kaiser property 

2. Waste Diversion 

3. Proposed offsite / and fill diversions 

4. Landfill mining 

5. Alternative Townsite locations 

6. Alternative Townsite land use and density

Accordingly, BLM determined that the preferred alternative is the Proposed Landfill Action. Riverside County,

required to conduct a different analysis, agreed with this

assessment: 

Pursuant to CEQA, the County has determined that

the environmentally superior alternative is the No

Action Alternative. The No Action Alternative

would leave the Project site in its present condition

and avoid the potential impacts of the proposed landfill. The No Action Alternative could, however, lead

to its own adverse impacts, such as the adverse

visual impact of the disturbed mining site and the

remaining tailing piles. Also, the potential impacts

associated with continued reliance on new or existing landfills in Southern California could be substantial, such as air quality impacts or groundwater

impacts at existing unlined landfills. In addition, the

other objectives of the Project as listed in Sections

1.3.2.1 and 1.3.2.2 would not be realized if the No

Action Alternative were chosen. However, with

respect to impacts in the vicinity of the Project site,

the No Action Alternative is, on balance, the environmentally superior alternative.

15154 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Where the No Project Alternative is determined to

be the environmentally superior alternative, CEQA

requires that an environmentally superior alternative

be selected from the remaining alternatives. There

are no clearly environmentally superior alternatives

compared to the No Action Alternative. However, as

required by Section 15126(d)(4) of the CEQA

Guidelines, the County has determined that, on balance the Proposed Action Alternative is the environmentally superior alternative among the remaining

alternatives. Many of the potential impacts of the

proposed Project are the same or similar to the

potential impacts of the remaining alternatives.

Some alternatives would, however, have a greater

level of impacts than the proposed Project. For

example, the Landfill on Kaiser Land Only Alternative without the land exchange would diminish the

protection of habitat and wildlife because there

would be no consolidation of sensitive habitat lands

resulting from the land exchange. 

That alternative and the Reduced Volume Alternative would also decrease the level of contribution to

the Environmental Mitigation Trust Fund, thus

diminishing the funding available for acquisition of

habitat lands. The Reduced Volume Alternative and

the Rail Access Only Alternative could also extend

the duration of certain impacts by extending the life

of the landfill. These other alternatives, however,

could reduce the level of a few impacts in comparison to the proposed Project. Only the No Action

Alternative would result in impacts considered not to

be significant. 

In summary, BLM approved this exchange because the

project not only provides a benefit to Southern California and

to Riverside County, but also because it serves important federal law management objectives.

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15155
III

EUTROPHICATION

What is it? Essentially, eutrophication is a term that refers

to an increase in chemical nutrients in an ecosystem, either on

land or in water. The word itself is derived from Greek, “eu,”

meaning “good,” and “trophic,” meaning “food” or nutrients.

Nitrogen, which is at the root of the controversy in this case,

is an essential element in the lives of both animals and plants

and, in fact, occurs naturally in great quantity in the atmosphere. Nitrogen is also a key element of the fertilizer used

positively to increase the food productivity of land throughout

the world. 

The environmental “problem,” of course, occurs with

anthropogenic eutrophication which causes alterations in plant

or animal life — or both — in a manner regarded as not positive. I note that most of our national eutrophication concerns

involve negative changes in bodies of water caused by the

anthropogenic introduction of excessive amounts of phosphorus. I have yet to find a situation where the introduction of

nitrates into a desert ecosystem has caused material environmental harm. The Charpieds fear that this is such a case, a

concern refuted by the facts. 

The parties cannot agree on the scope of alleged eutrophication concerns in this case as it relates to the consequences

of nitrate deposition. As summarized by the district court, 

Plaintiffs contend that BLM neglected to address

significant impacts on the environment due to

eutrophication including an increased presence of

scavenger raven and coyote populations, impacts on

bird, mice, and other small animal feeding habits due

to the nutrients from the landfill and windblown

trash, and irreparable impacts on the desert food

chain.

15156 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Relying on the closed and covered nature of the landfill, Kaiser asserts that the only source of nitrates related to the landfill are an insignificant consequence of “atmospheric nitrate

deposition from the emission and transport of anthropogenically generated nitrogen compounds.”

In the main, the plaintiffs complain that the defendants did

not take a “hard look” at this problem, as they were required

to do by NEPA. I disagree. 

In their Statement of Reasons supporting their appeal to the

IBLA, the Charpieds describe their eutrophication problems

as follows: 

A major concern to commenters, particularly NPS,

was the impact of the dump adding a large volume

of nutrients into an environment which has been

nutrient scarce for millions of years (see FEIS/R

under Agencies page 69). Despite repeated request

[sic] from NPS to address the eutrophication process,

BLM and Kaiser/MRC refused to conduct such an

analysis.

The EIS/R admitted “an increase in road kills of

local wildlife species would likely result from the

project’s 12 to 16 hour per day truck traffic along

access roads” (see DEIS/R 4.7-6)[.] It is also

acknowledged that common raven and other scavenger populations “could increase in response to

increased food in the form of road-killed animals[.]”

Id. Yet, the EIS/R never grappled with the important

concept of eutrophication from this increase, or other

possible causes of eutrophication, such as adding

20,000 tons of food (garbage) to a nutrient scarce

area. The EIS/R noted the Council on Environmental

Quality’s (“CEQ”) description of biodiversity: “the

concept that all components of ecological systems,

both living and nonliving, are interconnected in a

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15157
hierarchical continuum, and that changes in the

diversity at any level in that hierarchy can have

effects at other levels. . .” (see DEIS/R 3[.]7-28).

The EIS/R also acknowledged that growing scientific evidence supported a deep concern for biodiversity caused by human activity that adversely affects

the components of ecosystems and their interconnections; this results not only in species extinction, but

in disruptions of the functions of ecosystems on

which all life depends; and the introduction of exotic

species can eliminate native species through predation, competition, or disease transmission, and alter

interconnections between species, changing

ecosystem functions (see DEIS/R 3.7-30). Further

the EIS/R recognized that “because water and primary productivity are limited, desert ecosystems

recover very slowly from disturbances that disrupt

the interconnections between living and nonliving

components of the system” (see DEIS/R 3.7-31).

Despite these important factors, the EIS/R failed to

analyze eutrophication and its impact to JTNP’s

ecosystem[.] 

The Agreement between NPS and Kaiser/MRC

does not remedy the inadequacy of the EIS/R’s

assessments of impacts and mitigation measures.

(See FEIS/R Appendix T for Agreement[.]) BLM

mischaracterizes a side agreement (“Agreement”)

entered into between the polluters and NPS, and then

cite [sic] said Agreement 30 times in response to

NPS’ concerns in defense of the adequacy of the

EIS/R’s analysis[.] 

This concern about an increase in raven and “other scavenger populations” (unnamed) due to “roadkill” strikes me from

the record as greatly exaggerated, and it suggests simply

going down the list of usual environmental concerns and then

15158 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
manufacturing a groundless make-weight argument to try to

inject eutrophication into this case.

Contrary to (1) the Charpieds’ overblown concerns and

claims, (2) the district court’s mistaken view of this record,

and (3) my colleagues’ opinion, the BLM did examine

eutrophication and determined — correctly so from the record

— that it was not a serious issue. Here is what the IBLA had

to say about the issue as raised by the Charpieds:

“Eutrophication” is a process, associated with

aging aquatic ecosystems such as lakes, whereby

concentrations of phosphorus, nitrogen, and other

plant nutrients increase, altering the ecosystem by

algae blooms or microscopic organisms. “Cultural

eutrophication” occurs when the aging process is

sped up by the activities of humankind by allowing

excess nutrients in such forms as sewage, detergents,

and fertilizers to enter the ecosystem. Encyclopedia

Brittanica, Micropaedia Vol. III at 1007 (1979). 

In the present context, NPS used the term “eutrophication” to refer to the addition of nutrients (in

garbage and trash) to the desert ecosystem, raising

the possibility that the ecosystem would be upset by

the proliferation of animal life such as insects and

rats. NPS requested that this possibility be examined

in the EIS/EIR process. NPCA II at 29-30. 

The Charpieds assert that BLM failed to adequately assess “impact of the dump adding a large

volume of nutrients into an environment which has

been nutrient scare for thousands of years.” (Charpieds’ SOR at 39-30.)

n.16

We must . . . review each issue [including eutrophication] to determine whether the effects cited by the

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15159
Charpieds are “relevant matters of environmental

concern” or constitute “probable environmental consequences,” such that BLM was required to present

a “reasonably thorough discussion” of them as part

of its requisite “hard look.” The record shows that

the EIS/EIR satisfies BLM’s obligation to take a

“hard look” at such impacts. 

. . . . 

The EIS/EIR addressed “eutrophication” and

roadkill. (Draft EIS/EIR at Sec. 4.7.4, ROD at 15;

Final EIS/EIR at 7-22 to 7-24; Response to Comments 1-123 and 1-153.) The Charpieds fail to specify how this assessment is deficient and thus fail to

meet their burden of showing error in BLM’s

review. Effects of night lighting were addressed.

(Final EIS/EIR Sec. 6.6.) 

To the extent that appellants fault BLM for not

considering the possibility that mining of the site

will resume at some point in the future, compounding environmental questions, this issue goes beyond

presently foreseeable effects. BLM’s approval of the

Project is subject to ongoing monitoring to determine whether additional adverse impacts to the

ecosystem eventuate. 

NEPA is primarily a procedural statute designed

“to insure a fully informed and well-considered decision.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519,

558 (1978). That is, although NEPA requires an

agency to prepare an EIS where significant impacts

are identified (as BLM did here), nothing in NEPA

restrains an agency from proceeding with an action

that will have significant impacts where it decides

that other values outweigh the environmental costs.

15160 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 350-51 (1989); Paul Herman, 146 IBLA

80, 102 (1998). The purpose of preparing the EIS is

to inform the agency of possible adverse environmental effects in hopes that the agency can mitigate

them. This expectation was well rewarded in this

case. As discussed herein, BLM did not disregard the

adverse effects identified in its EIS/EIR, but proceeded to carefully consider them (as well as six

other alternatives (ROD at 3)) and develop mitigating measures to reduce or eliminate them, in consultation with Departmental agencies responsible for

the subjects presented. We find no basis to disturb its

decision.

My colleagues register concern that eutrophication discussions are found only in scattered sections of the EIS and that

one has to “cull through entirely unrelated sections of the EIS

and then put the pieces together” to find them. They call this

a “patchwork,” and they find such to be a fatal flaw. All I can

say is that (1) it was the Charpieds’ burden to identify the failures they alleged, (2) the California Court of Appeal thoroughly examined and analyzed the eutrophication allegations

in 1999 and had no trouble finding its way through the record,

(3) I had no trouble finding eutrophication in this voluminous

record, and (4) neither did the IBLA. 

I note here that the DEIS contains an enormous, detailed,

and well-organized Table of Contents (with appendices) spanning 17 pages. Only someone intent on not finding what they

hoped was not there could fail to locate matters of their concern in this admittedly gigantic document. But, the clear road

map is there. 

To save space, let’s go to the Response to Comments section of the EIS:

A commenter has stated that ecosystem impacts,

such as eutrophication, are defined in the “broad

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15161
sense, referring to the large-scale addition of nutrients (i.e., landfill trash) to the desert ecosystem”

(Appendix 2 of Comment 1) and has requested that

the EIS/EIR explain the impact of the proposed Project on the regional ecosystem, including impacts on

“subtle and interconnected plants, animals, and processes, most of which presently are unknown.”

(NPS, Joshua Tree National Park Issues Identification for the Eagle Mountain Landfill Environmental

Impact Statement/Environmental Impact Report,

1995). The JTNP Issues Identification paper also

identified possible ecosystem impacts attributable to

the Project (i.e., wet dry deposition of nitrate, global

warming, and invasion of exotic species) and

requested additional studies and experiments to

assess ecosystem impacts. Upon review of the

requested studies and experiments suggested by the

NPS, the lead agencies determined that existing data

were available and sufficient for assessing impacts to

biodiversity and ecosystem function. The Draft EIS/

EIR addresses all these possible impacts associated

with the Project, including habitat loss, additional

nutrients originating directly or indirectly from landfill material (defined as “eutrophication” by NPS),

the introduction of exotic species, nitrate deposition,

and global warming. 

For example, the Draft EIS/EIR (Section 4.7.4)

states that the proposed Project could affect biodiversity “primarily as a result of loss of habitat,

habitat fragmentation, and changes in the relationship between species in the form of increases in

predator/scavenger populations in response to

increased food availability at the landfill site, and

from increased roadkills.” The EIS/EIR presents a

full analysis and discussion of these impacts and

appropriate mitigation, where applicable. 

15162 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
Control measures proposed to be implemented are

described above in General Response 3, and include

continuous covering of waste, limiting the work face

to 2 acres or less, litter fencing, litter patrols, and

providing additional cover for any area that has not

been active for 180 days. 

To control conditions at the Townsite that could

also lead to an increase in predators, measures identified for predator control will also be employed at

the Townsite. These measures will include educating

Townsite residents of the factors that increase raven

and other predator populations, and restrictions

requiring disposal of trash and garbage only in

tightly closing trash receptacles. Areas around businesses will be patrolled regularly to collect trash.

Feeding domestic animals outside in areas accessible

to ravens will be prohibited. Buildings and other

structures that could provide nest sites for ravens

will be monitored regularly. Other restrictions on

Townsite activities are described in Section 4.7 of

the Draft EIS/EIR.

The mitigation measures proposed for the Project

address potential impacts to a broad range of plants

and animals that occur in the Project area. Mitigation

measures have been identified, in consultation with

the appropriate regulatory agencies, for potential

impacts to all special status species, and will be

implemented as a condition of Project approval. At

the request of the [California Department of Fish and

Game] and other resource agencies, additional mitigation measures will be implemented for species that

have no protected status and/or are not anticipated to

experience significant impacts. For example, the

California Barrel Cactus is not a protected species,

but is considered an important food and water source

for Nelson’s Bighorn Sheep, especially in time of

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15163
drought. Mitigation for this species includes transplanting and monitoring to ensure the success of

transplanting. Similarly, mitigation measures will be

implemented for the Common chuckwalla, which

has no formal protected status. These will include

surveying and removing individual animals from

Project areas. The aggregate of the mitigation measures proposed for protected and other species will

help assure that the biodiversity of the Eagle Mountain Project area is protected and maintained. The

availability of the Environmental Mitigation Fund as

a tool to acquire and protect prime habitats in the

Southeastern California desert will further contribute

to the protection of biodiversity and ecosystem function.

Environmental Mitigation Trust

A number of commenters requested additional

detail about how the Draft Environmental Mitigation

Trust (Appendix U of the Final EIS/EIR) would

function and how it would contribute to the mitigation of Project impacts. The overall goals and functions of the Environmental Mitigation Trust, as

currently proposed, are described on pages 4.7-14 of

the Draft EIS/EIR. The Draft Trust includes elements of the negotiated Agreement with Kaiser/

MRC and NPS and certain discussions with CDFG.

Specifically, the Draft Trust specifies that 72 percent

of the fees would be used to acquire lands that provide high-quality habitat for special status species in

the region. In addition, 18 percent of the funds

would be used for long-term monitoring, research,

and mitigation. The remaining 10 percent of the

funds would be used to acquire private parcels in

JTNP and for long-term research and mitigation

associated with potential Project impacts to JTNP.

Lands to be acquired would be identified by an advi15164 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
sory committee appointed by the Trustees of the

Trust (the County of Riverside Board of Supervisors). 

The Draft Trust agreement specifies that the nine

members of the advisory committee shall all be residents of Riverside County and comprise two members of the Board of Supervisors of the County of

Riverside; two citizens appointed by the Board of

Supervisors, one of whom must be a Native American; two citizens nominated by the Coachella Valley

Mountains Conservancy; one citizen nominated by

The Nature Conservancy; and one citizen nominated

by The Desert Protective Council. Because land

acquisition expenditures would be recommended by

this advisory committee, specific acquisition locations cannot be identified at this time. The Draft

Trust Agreement, however, specifies that lands

acquisition expenditures would be restricted to or for

the benefit of lands within 15 areas in desert environments of Southern California identified in the

Trust Agreement (with provisions for expenditures

in other project areas if acquisition in the 15 identified areas have been reasonably met and with the

consent of 4 of the 5 trustees). The 15 areas listed as

priority areas for acquisition were identified in a January 1994 California Endangered Species Act Memorandum of Understanding between MRC and the

CDFG. 

Section 4.7.4 of the Draft EIS, “Biodiversity and

Ecosystem Function,” says:

The NPS has expressed concern that operation of

the landfill will result in eutrophication (increased

primary productivity) at JTNP as a consequence of

atmospheric nitrate deposition. Atmospheric nitrate

deposition results from the emission and transport of

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15165
anthropogenically generated nitrogen compounds.

Sources include agricultural emission of ammonia/

ammonium and organic nitrogen from animal wastes

and fertilizer applications, and oxides of nitrogen

emitted from fossil fuel combustions (automobiles,

power plants, industry) (Paerl, 1993). Recent studies

indicate up to 30 kg/ha/yr of dry nitrate are deposited

primarily from automobiles in the San Dimas Experimental Forest, just east of Los Angeles (Personal

Communication, Kathy Freas/CH2M Hill with E.

Allen. August 17, 1995). 

Increasing nitrate deposition is of concern in

desert ecosystems because desert soils typically are

nutrient poor and primary production can be limited

by nitrogen availability. Increased nitrogen could

potentially allow the establishment and spread of

plant species that otherwise would not occur in the

desert because of nitrogen limitations. Sources of

nitrate associated with the proposed Project are limited to fossil fuels used by trucks and trains delivering waste to the landfill and to the use of personal

vehicles and home heating for occupants of the

Townsite. Landfill gases include only methane and

carbon dioxide and are not a source for oxides of

nitrogen. The small amounts of nitrate produced as

a result of fossil fuel use associated with landfill

operation would be eclipsed by the amount of nitrate

produced in the Los Angeles Basin and in urban

desert communities closer to the landfill. Additionally, nitrate is transported by prevailing winds,

which are westerly in the vicinity of the proposed

Project. Because the landfill is southeast of JTNP,

nitrates generated from landfill operations would be

transported away from JTNP rather than toward it.

JTNP expects to see an increase in visitorship to the

park to 4 million persons per year by the year 2010

(NPS, 1995). Many, if not most, of these visitors will

15166 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
arrive by automobile and will drive through the park.

This source of nitrates from fossil fuel combustion is

expected to be greater than that produced by landfill

operations. Nitrate deposition associated with landfill operations, therefore, is expected to have no

effect on ecosystem function [in] JTNP (see Section

4.4 Air Quality).

Then, there is the Agreement with the NPS covering ravens

and other predators, which addresses any unanticipated predator and raven problems about which the Charpieds worry:

3.6 DESERT TORTOISE - Kaiser/MRC shall undertake the following obligations in connection with the

Desert Tortoise:

3.6.1. Conduct and continue the existing raven

monitoring program from at least twelve (12)

months prior to commencement of operation for a

period of at least 10 years.

3.6.2. Conduct, beginning at least twelve (12)

months prior to commencement of operation of the

Project and continuing for a period of at least 10

years, a predator monitoring program at the Project.

3.6.3. Mitigate potential increases in raven, coyote, kit fox, and other predator populations caused by

the presence of trash at the Project. If the Common

Raven population in the region of the Project

increases as a result of landfill activities, then an

active control program will be instituted. Kaiser/

MRC will present its control plan and depredation

permits to NPS prior to start up of the landfill. If

control measures are instituted, but found to be ineffective, Kaiser/MRC will revise its control plan and

implement a new plan.

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15167
3.6.4. Fence the perimeters of all active landfilling

and waste handling areas with fencing designed to

exclude large scavengers and place a minimum of 6

inches of appropriate cover material over deposited

and compacted refuse on a daily basis to minimize

raven, rodent, and other opportunistic scavenging.

3.6.5. Conduct, upon commencement of landfill

operations, a non-lethal predator control program,

that will, as a minimum include hazing at the landfill

site, coyote and kit fox aversion (aversive conditioning) techniques, prompt removal of road-killed wildlife along access roads, and the possible use of bird

repellent methyl anthranilate.

The California Court of Appeal had this to say in 1999

about eutrophication:

Eutrophication (Nutrient Addition)

In its ruling, the [Superior] court found insufficient evidence to support the EIR’s conclusion that

impacts to the Park will be less than significant

regarding “the impact of the landfill on the biological resources of the [P]ark as a complex and interrelated system, which the [NPS] describes as

eutrophication.” In 1995, the Park staff requested

that as part of the EIR process, the involved agencies

study the phenomenon of adding nutrients (trash) to

the dry, harsh desert landscape, possibly causing

insects and rats to proliferate, then starting the food

chain going full tilt and upsetting the Park

ecosystem. (This phenomenon is termed eutrophication after the similar effects of adding nutrients to

lakes and upsetting their ecosystems.) The Park recommended such studies as computer modeling and

animal tracking (trapping rats and insects at existing

landfills, and inventorying animal feces to analyze

15168 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
whether human-generated trash was being transported) for several years to project the impact of the

landfill, if it were to be built. 

The EIR approached this problem in several ways,

directed toward containment of the refuse: (1) The

EIR proposed such measures as keeping incoming

refuse in sealed containers until transported to a limited working area, creating litter fences, conducting

a storm watch to avoid the scattering of materials by

windstorms, and covering the waste with dirt and

mining debris to avoid access by ravens. Similar

measures have proved effective at other landfills. (2)

The landfill will have a state-of-the-art liner and

operations design as part of the system for confining

the waste. (3) Studies were made of the Los Angeles

experience with landfills, in which rats were fitted

with radio transmitters and researchers found that

daily landfill operations (bulldozing and compacting

waste) kill rats. Other studies have shown that

insects do not proliferate at landfills if daily cover is

properly applied. (4) All ponds and water sources

will be covered and the areas fenced to prevent

access by predators such as ravens, coyotes, or kit

foxes. (5) The proponents entered into the mitigation

agreement with the NPS to provide for additional

mitigation measures if necessary. (6) The EIR

includes responses to comments, including the Park

issues identification paper, stating that the lead agencies determined that existing data were available and

sufficient to address impacts to biodiversity and

ecosystem function. The EIR addresses such possible impacts from the project as “habitat loss, additional nutrients originating directly or indirectly from

landfill material (defined as ‘eutrophication’ by

NPS), the introduction of exotic species, nitrate

deposition, and global warming.” The comments

give the example that biodiversity could be affected

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15169
by “ ‘changes in the relationship between species in

the form of increases in predator/scavenger populations in response to increased food availability at the

landfill site, and from increased road kills.’ ” These

impacts and appropriate mitigation were discussed in

the EIR.

Nat’l Parks & Conservation Ass’n v. County of Riverside, 84

Cal. Rptr. 2d 563, 576 (Cal. Ct. App. 1999). “It is speculative

whether the eutrophication effect will occur, but if it does the

NPS agreement provides for environmental mitigation measures to deal with the problems.” Id. at 577. 

In conclusion, my colleagues claim that “[t]his patchwork

cannot serve as a ‘reasonably thorough’ discussion of the

eutrophication issue” demonstrably and grossly mischaracterizes the record, and is flatly wrong. It inappropriately gives

the back of this Court’s hand to a massive and thorough process and resulting responsible environmental decisions and

documents.

IV

HIGHEST AND BEST USE

The appellees now claim pursuant to the FLPMA that

BLM’s appraisal of the value of the federal land to be transferred to Kaiser for the landfill failed to consider the “highest

and best use” of that property as part of the intended commercial landfill. Their untimely assertion is that BLM’s selection

of potential land uses for its highest and best use determination did not include the use as a landfill as one of its markers.

See 43 C.F.R. § 2201.3-2(a)(1), (2). They argue that Kaiser is

not paying enough for the federal lands it seeks to acquire.

15170 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
A.

Failure to Exhaust

The first problem with this newly-minted claim is that the

plaintiffs did not present it to the IBLA, as they were required

to do pursuant to the jurisdictional doctrine of exhaustion.

Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th

Cir. 2006) (“The APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal court. 5

U.S.C. § 704. This requirement applies to claims under

NEPA.”). I draw this conclusion from the Statements of Reasons for their appeal to the IBLA — one from the NPCA and

one from the Charpieds. 

First, the NPCA’s Statement of Reasons for the appeal: 

II. THE BLM WILL NOT RECEIVE FAIR

MARKET VALUE FOR THE EXCHANGE.

Any disposal of federal land must be compensated

at “fair market value of the use of public lands and

their resources.” 43 U.S.C.A. § 1701(a). Here, the

compensation being offered in exchange for the public lands in question is inadequate, and egregiously

low. As a part of the land exchange, BLM will hand

over 3,481 acres of federal land just outside Joshua

Tree, providing the bulk of lands needed by Kaiser

for the proposed Landfill. In return, Kaiser will

transfer 2,486 acres of private land to BLM. To compensate for the approximately 1,000-acre differential, Kaiser will also pay BLM a lump sum of

$20,100, which is well below the fair market value.

Kaiser anticipates huge profits from a landfill operation on the undervalued BLM land, well beyond the

$20,000 amount that would be paid for approximately one third of the property. Here again, Kaiser

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15171
and a few other parties will benefit at a significant

cost borne by the national treasury.

As for specific defects in the method of evaluation, this is

what NPCA said:

Here, BLM’s own analysis reveals its failure to

incorporate wildlife and aesthetic value into the valuation of the federal lands. An appraiser, in determining market value, “shall include historic,

wildlife, recreation, wilderness, scenic, cultural, or

other resource values.” 43 C.F.R. 2201.3-2(a)(3).

Certainly, BLM land in close proximity to Joshua

Tree (1.5 miles away) carries significant wildlife,

wilderness, scenic, and cultural value to the one million yearly visitors to Joshua Tree. The land

exchange appraisal prepared for BLM does not accurately reflect this value.

Nowhere does this statement with sufficient clarity identify

as a flaw BLM’s alleged failure to value its lands as part of

a proposed landfill, nowhere does it use the term “highest and

best use.” The reason given is generic and not specific or particularized. 

“[A]dminstrative proceedings should not be a game or a

forum to engage in unjustified obstructionism by making

cryptic and obscure references to matters that ‘ought to be’

considered and then, after failing to do more to bring the matter to the agencies’ attention,” seeking to attack it in court. Vt.

Yankee Power Corp. v. Natural Res. Def. Council, Inc., 435

U.S. 519, 553-54 (1978). The purpose of the exhaustion

requirement is two-fold. The requirement is designed (1) to

“avoid [ ] premature claims,” and (2) to “ensur[e] that the

agency be given a chance to bring its expertise to bear to

resolve a claim.” Great Basin Mine Watch, 456 F.3d at 965

(quotation omitted). The NPCA’s statement, vaguely alleging

without explaining why the land was undervalued, serves nei15172 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
ther of the twin objectives of exhaustion. The proof of this

pudding is in the eating. Nowhere in the IBLA’s decision is

the valuation as a landfill “issue” addressed, and not because

they overlooked it, but because the plaintiffs did not raise it.

Everything the plaintiffs did raise was addressed. 

The Charpieds’ Statement of Reasons for the appeal is no

better; in fact, it is worse. In what amounts to a 36-page jeremiad laced with invective and unsupported allegations of corruption, payoffs, and kickbacks against numerous individuals

and all the agencies involved — including the Nature Conservancy — they attack everything in sight — except the BLM’s

choice of its appraiser’s method of valuation. Again, no mention of a valuation-as-a-landfill deficiency, no use of the

words “highest and best use,” and no reference to the relevant

valuation rules. Instead, we find statements like this: “We

charge the California BLM with the under-value of the select

public lands in their continual serving of preferential treatment to the developers, while ripping off the taxpayers.” “The

taxpayer is being swindled.” “BLM lied . . . .” “The U.S.

Attorney advances ‘lame contentions’ . . . .” “The BLM

shamelessly extorts from the Constitution and the people

[powers it doesn’t have].” “Gee, some guys [like Kaiser] get

all the breaks.” “In short, the smooth talking polluters played

Washington D.C. officials like a fiddle.” “Payola.” “If we

haven’t made ourselves clear, perhaps this is a good time to

remind the [Administrative Law Judge] that this proposal

stinks of back room deals, hidden agendas and intrigue, lacks

any semblance of integrity or ethics in government, and is

worthy of an Inspector General’s investigation.”

The only thing that is clear about this Statement of Reasons

is that the Charpieds are against this proposal. They are not

interested in a “hard look,” only in stopping the project,

period. Interspersed between all the unproductive name calling, they raise every objection one might imagine — except

the issue of “highest and best use” upon which they now

attempt to prevail. Shades of Vermont Yankee. 

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15173
Looking at the IBLA’s opinion, one sees that the IBLA

directly addressed all the objections the Charpieds and NPCA

did raise. This fact underscores the wisdom of the exhaustion

rule. If you raise it, the IBLA will examine and answer it.

Again, I turn to the record:

Section 206(b) of the FLPMA requires that the

values of the public and private lands exchanged be

equal or equalized by the payment (absent waiver in

appropriate circumstances) of not more than 25 percent of the total value of the land transferred out of

Federal ownership. 43 U.S.C. § 1716(b) (1994); 43

C.F.R. §§ 2201.3(a) and 2201.5(c)(2); see Brent

Hansen, 128 IBLA 17, 19 (1993); Havasu Heights

Ranch & Development Corp., 102 IBLA 1, 7-8

(1988).

The Charpieds assert that BLM undervalued the

selected public lands taken by KEM in the exchange

(Charpieds’ SOR at 1-2), suggesting that it did not

meet the requirements of 43 C.F.R. §§ 2201.3(a) and

2201.5(c)(2). NPCA also argues that BLM will not

receive fair market value for the exchange. (NPCA

SOR at 5-6). It is well established that a party challenging an appraisal determining fair market value is

generally required to either show error in the methodology used in determining fair market value or,

alternatively, submit its own appraisal establishing

fair market value. See Voice Ministries of Farmington, Inc., 124 IBLA 358, 361 (1992); High Country

Communications, Inc., 105 IBLA 14, 16 (1988).

Appellants have submitted no appraisal here. Nor

have they shown error in the methodology of the

appraisal. We accordingly do not agree that the public is not receiving full value for the selected public

lands. In these circumstances, the BLM appraisal is

properly upheld. See, e.g., Brent Hansen, 128 IBLA

at 19; City of Santa Fe (On Judicial Remand), 120

15174 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
IBLA at 315; Burton A. McGregor, 119 IBLA at

105.

We specifically reject the Charpieds’ argument

(SOR at 1) that BLM failed to properly value the

reversionary interest in the tract of land they describe

as the campsite/millsite lands. BLM instructed the

appraisers to appraise the reversionary interest in the

surface estate of the tract in terms of the “fee simple

estate, disregarding the [e]ffect of any title encumbrances,” including the reversionary interest, and to

appraise the tract “as if in a raw, unoccupied state,

disregarding any of the existing improvements.”

(Appraisal Report, Vol. II, at iv, 4, 14). The record

indicates that these instructions resulted from an

agreement between BLM and KEM which was

designed to resolve the problem of how to appraise

the reversionary interest, under which KEM agreed

to pay for the full fee simple title to the campsite/

millsite lands even though it already held the principal interest in those lands. (Letter to BLM from

KEM dated May 5, 1993). The surface estate was

patented to KSC in 1955 and was being held subject

only to KEM’s continued compliance with the terms

of the patent. So long as it did so, KEM could hold

the surface estate indefinitely, subject to the possibility of reverter. We find no fault with this compromise, and appellants have provided no basis to

disturb it. To avoid even the possibility of undervaluing its reversionary interest, BLM instructed the

appraiser to value that interest as if it were a fee simple interest in the surface estate of the land, that is,

as if the reverter had occurred. This undoubtedly

increased the value attributable to the reversionary

interest, thus maximizing its value for purposes of

the exchange and benefitting the United States by

increasing the overall value of the selected public

lands in the exchange.

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15175
We also reject the Charpieds’ argument (Charpeids’ SOR at 1) that, by disregarding revenue from

improvements that have been built on the campsite/

millsite lands, BLM undervalued the reversionary

interest. That argument disregards the critical fact

that, if the lands ever had reverted to the United

States, those improvements could be removed. Such

improvements and associated “revenue stream”

belong to KSR and its successors, not to the United

States, which has no claim to reimbursement for

their value.

By the same token, the valuation of the offered

private lands is not defective because it did not

include the value of railroad tracks which cross the

property (see Charpieds’ SOR at 2), as those

improvements will not belong to the United States

following the exchange, but will remain in Kaiser’s

possession on the property under authority granted

by the right-of-way. In these circumstances, it was

appropriate to value the lands “as if in a raw, unoccupied state, disregarding any of the existing

improvements,” (Appraisal Report, Vol. III at 5, 23),

as those improvements can be removed by the rightof-way holder.

The Charpieds assert that the appraisal misstates

the present use classification of the selected public

lands as “designated for Open Space and Conservation.” (Charpieds’ SOR at 1-2). We are unable to

find such statement, and the Charpieds provide no

citation. The appraisal Report expressly states to the

contrary that the selected public lands were “appraised based on [their] estimated highest and best

use as if available in the open market, in accordance

with the underlying zoning regulations, County of

Riverside General Plan land use recommendations,

and [CDCA] Plan land use recommendations”

15176 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
(Appraisal Report Vol. I at 43-44), concluding, in

view of the absence of “imminent development

potential,” that “the highest and best use of the

selected public lands is estimated to be holding for

speculative investment and future capital appreciation.” Id. at 47.

The Charpieds argue that the Notice of Exchange

Proposal (NOEP) violated 43 C.F.R. § 2201.2(a)(1),

because it failed to name Kenneth Statler as a party

“involved in the present exchange.” (Charpieds’

SOR at 2). Appellants have failed to show that

Statler, who apparently at one time held a leasehold

interest in a portion of the campsite lands that has

now expired, owns any interest in the lands involved

in the exchange. Accordingly, we agree with KEM

that he is not “involved in the present exchange” and

need not have been identified under 43 C.F.R.

§ 2201.2(a)(1). Nor did the NOEP need to mention

MWD (Charpieds’ SOR at 20), which is not a participant in the exchange, but is instead the grantee of a

right-of-way.

The Charpieds also argue that the NOEP violated

43 C.F.R. §2201.2(a)(2) by not identifying 400 acres

of desert tortoise habitat that KEM will donate to

BLM. That “donation” is actually being made as

mitigation for the expected loss of desert tortoise

habitat caused by the widening of Eagle Mountain

Road. We agree with KEM that it was not required

to list those lands in the NOEP because, at the time

of the preparation of that document, the extent of

loss of habitat was not known and could not have

been accurately foreseen. At this time, KEM has

committed itself (as a condition of the land exchange

agreement) to purchase 400 acres of tortoise habitat

and donate it to the United States for preservation to

mitigate expected damage to 160 acres of tortoise

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15177
habitat resulting from the widening of Eagle Road.

We find nothing impermissible in that. The valuation

of the selected public land and offered private lands

are not affected. Public involvement in this process

can await the execution of the agreement.

Both NPCA and the Charpieds argue that BLM

erred by failing to take into account that title to the

campsite/millsite lands had reverted to the United

States because the terms of the reverter in the patent

had occurred. Indeed, they presume that title to the

lands has reverted and make further assumptions

accordingly. See, e.g., Charpieds’ SOR at 2-3

(asserting that KEM’s occupancy of these lands is

trespass, and challenging the legality of a lease of

surface rights issued by KEM to Statler). In view of

the fact that BLM has agreed to deed its interest in

the lands (whatever it may be) to KEM, this land

exchange will resolve these questions once and for

all. As noted above, BLM has valued the campsite/

millsite lands as if the land had already reverted to

the United States. This moots the question of

whether title to the lands has, in fact, reverted.

There is no doubt that the Charpieds were aware of the precise “highest and best use” argument they chose not bring to

the attention of the IBLA. They asserted this very same argument in earlier cases; see, e.g., Donna Charpied, 137 IBLA

45, 47 (1996). To quote the IBLA from that case,

They [the Charpieds and others] contend that the

appraisers failed to consider that the Federal land to

be exchanged is proposed to be used as a landfill,

and that, as a result, the land should be . . . valued

in comparison to landfill sites, instead of being

treated as mine support lands . . . . 

Id. (emphasis added).

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Notwithstanding their clear awareness of this “comparison”

issue, the Charpieds did not raise it in this matter until they

arrived in federal court, an acute violation of the exhaustion

rule. Then, they finally hired their own appraiser — Stephen

Roach — and offered to the district court new “evidence” on

this new issue. Too late, fatally too late. NPCA recognizes

this deficiency, claiming that to have raised this valuation

issue to the IBLA would have been “futile.” NPCA’s Answering Brief at 56. Why futile? Because it did not work in the

Charpieds’ earlier case. In short, both decided not to pursue

it here — but only the NPCA explains why.

B.

The Herzog Appraisal

Nevertheless, when they did insert this new issue into the

district court case, allegedly supported by an appraiser, Stephen Roach — who was never involved in the administrative

process at all — BLM did what it would have done had it

been given timely notice of this additional concern: they hired

a new independent appraiser — Steven Herzog — to evaluate

it. So much for futility. BLM instructed Mr. Herzog independently to review David Yerke’s earlier 350 page appraisal

“[i]n light of the Desert Citizens decision,” referring to our

opinion in Desert Citizens Against Pollution v. Bisson, 231

F.3d 1172 (9th Cir. 2000). In that case, we held that the use

of property should be “considered” in evaluating the highest

and best use. Desert Citizens, 231 F.3d at 1180-84. The purpose of Mr. Herzog’s report was to “supplement the administrative record.” 

Steven Herzog holds the designation of MAI from the

Appraisal Institute. He is also a Certified General Real Estate

Appraiser in California, a Registered Professional Forester,

and the President of the Herzog Group. To assist him in this

endeavor, he hired the Recon Research Corporation for its

discount rate as applied to future income for landfill lands

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15179
expertise, and EMCON, a civil engineering company with

landfill experience. 

Despite the Charpieds’ fatally tardy assertion of this matter,

Mr. Herzog did what BLM and Desert Citizens asked him to

do: he thoroughly considered the value of the land in connection with its value as a landfill and filed his report accordingly. He concluded as of the relevant date that the landfill

was “not a financially feasible use of the selected [federal]

land.” It follows that the “highest and best use” of the federal

lands being appraised could not have been for a landfill. He

noted that as of 1993, “difficulties faced by landfill developers in obtaining required approvals impacted the ability and

desire of companies to finance such projects.” He pointed out

that operators such as Waste Management, Inc., Western

Waste, and BFI began to abandon their investments. He

opined that “[t]he opportunity costs of investing tens of millions of dollars in a high-risk venture, without any return on

that investment for at least ten years are enormous,” and that

“[a] knowledgeable investor with millions of dollars to invest

would not have considered investment in a rail-haul landfill

to be the route to obtaining a reasonable return on the investment.” 

So, if this is true, that there was no market for the federal

lands as a landfill, why would Kaiser doggedly pursue this

proposal? Because Kaiser already owns the abandoned holes

in the ground and the railroad necessary to serve it and has

a considerable investment in the project. The idea that someone else might purchase the selected federal lands for a landfill is palpably and demonstrably hallucinatory. 

This is what Mr. Herzog has to say about Kaiser’s determined motivation in a declaration provided to the district

court summarizing his 108-page report (plus attachments)

submitted to BLM: 

61. . . . Under this analysis, the net present value

[“NPV”] of the income generated from the project

15180 NATIONAL PARKS v. KAISER EAGLE MOUNTAIN
would be $2.48 million. Not included in the calculation of this figure is any allowance for entrepreneurial profit, the $13 million spent on permitting after

September 25, 1997, the $17 million that would be

required to upgrade the railroad and relocate and

upgrade the paved road, or any allowance for on-site

infrastructure cost and staffing. Consequently, the

NPV for the net income to the landfill operation is

dwarfed by the expenditures that would be required

to obtain that income — a conclusion BFI obviously

reached in 1994. Report pp. 106 - 107.

62. I reached the conclusion that, as of the effective date, landfill use was not financially feasible.

Yet, Kaiser and its remaining associated investors

went on to spend $13 million more pursuing final

permits. Through 1994, approximately $49 million

had been spent on the project. However, BFI had

spent $45 million of that, and walked away. The

remaining proponents had only $4 million invested,

but the only way to recover any of the investment

was to press on with the permitting effort. The internal dynamics of the stakeholders in the endeavor created a situation where motivations existed that were

different from what a single entity, which had been

solely financing the project from the beginning,

would have faced. Report p. 108.

63. In addition, the expectation constantly existed

that the time when final permits would be obtained

was near at hand. The obtaining of the goal always

seemed to be near enough that continued expenditures were justified. To stop the process would have

meant the forfeiting of all prior expenditures,

because the final permits were needed to put the

project in its most marketable condition. As noted

earlier, the pending sale is contingent upon final perNATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15181
mits being obtained and all litigation being resolved.

Report p. 108.

64. The conclusion of Mr. Roach that a landfill

was economically feasible is based completely on

the observation that Kaiser was investing in a landfill

at the site. First, this “observation” is not a proper

method of assessing the economic feasibility of a

landfill use. See definition of economic feasibility at

¶ 11. Moreover, this “observation” does not consider

the circumstances and history of Kaiser’s investment

in the project or the fact that Kaiser, since it owned

the railroad, the permits, and other aspects of the

project related to the selected lands, had different

motivations than others in the marketplace would

have had. Mr. Roach’s conclusion appears to be

without market support, and is based on an incomplete understanding of the factors motivating Kaiser

to continue to invest in Eagle Mountain.

Kaiser is correct when it argues that BLM’s chief state

appraiser in California, Nancy Ortiz, reviewed Mr. Herzog’s

report and said in a 12-page report:

From my review it appears that Mr. Herzog has

been conscientious in providing an independent analysis and his report meets applicable [UAS] and Federal standards and the requirements of the

instructions for the assignment provided by the

BLM. He has thoroughly analyzed the subject’s

potential for landfill as a highest and best use, using

appropriate methods and consultants, and provided a

feasibility conclusion based on his analysis. As the

reviewer, I believe that the appraiser has addressed

concerns relative to the landfill as a potential highest

and best use . . . . 

The BLM District Manager added this perspective to Mr. Herzog’s appraisal: 

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We feel the administrative record supports BLM’s

decision in this case, and disagree with Plaintiff’s

assertions to the contrary. However, in light of the

Ninth Circuit’s opinion in Desert Citizens, we felt an

independent analysis of whether a landfill was the

highest and best use of the federal lands was justified. We were prepared to accept the results of this

new analysis, regardless of its implications to the

District Manager’s decision of September 25, 1997.

In conclusion, he said, “I have reviewed Mr. Herzog’s report

and found nothing which indicates that it is necessary to

revise or revisit the District Manager’s decision of September

25, 1997 approving the exchange.” This decision was served

on the Charpieds in January, 2003; and Mr. Herzog’s report,

plus the reports of the chief appraiser and the district manager

were formally made part of the administrative record and officially certified and lodged as such with the district court on

February 7, 2003. How my colleagues can claim that this is

not a “final, appealable decision” is a mystery. 

Did the plaintiffs timely appeal the District Manager’s final

conclusion to the IBLA, as they could have pursuant to 43

C.F.R. § 4.410(a)? No. This failure alone should bar them

from bringing it sideways into this case. So what the Charpieds say BLM did not do has in fact been done, and remains

unchallenged by them. 

We faced a similar problem in Warm Springs Dam Task

Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980). In that case,

a deficiency in the Army Corps of Engineers NEPA process

had been cured during litigation. Calling these “supervening

events,” we denied remand to the Corps because the Corps

had already conducted studies definitively to answer the matter at issue. Id. at 1026. As we said in Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000), “if extrarecord evidence shows that an agency has rectified a NEPA

violation after the onset of legal proceedings, that evidence is

NATIONAL PARKS v. KAISER EAGLE MOUNTAIN 15183
relevant to [what] relief should be granted.” See also Forest

Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1095-96 (9th

Cir. 2003). At the very least, we should follow this example.

BLM has done what we suggested in Desert Citizens. It has

thoroughly “considered” the issue and issued a manifestly

defensible answer. To remand at this point is a clear exercise

in blind form over substance.

CONCLUSION

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.

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