ELR Citation: 52 ELR 20094
No(s). 20-1489 (D.C. Cir. Aug 9, 2022)

The D.C. Circuit denied a Native American tribe's petition to review NRC's decision to grant a source material license for uranium extraction from ore beds in South Dakota. The tribe initially raised challenges to the license application and NRC's NEPA and National Historic Preservation Act (NHPA) processes before NRC's Atomic Safety and Licensing Board. The Board first determined the license was issued without individually consulting the tribe as required by the NHPA and without evaluating the tribe's cultural resources in the EIS as required by NEPA. NRC attempted to remedy the violations, but failed to reach an accord with the tribe. The Board subsequently determined NRC had satisfied the NHPA by reasonably consulting with the tribe and "had satisfied NEPA because the tribe's intransigence made its cultural resource information, in effect, unavailable." NRC affirmed the Board's decisions, and the tribe petitioned for review, maintaining that NRC failed to meet its obligations under NEPA and the NHPA. The court determined that NRC's alleged failure to include an unavailability statement in the EIS was remedied by the Board's publicly accessible orders and that its efforts to gather cultural resources information was reasonable; that the EIS adequately considered hydrogeologic effects, disposal of byproduct material, and mitigation strategies; and that NRC satisfied its consultation obligations under the NHPA.