ELR Citation: ELR 20473
No(s). 90-2225 (10th Cir. Sep 17, 1992)

The court upholds a district court's dismissal of a challenge by Indian pueblos and environmental groups to the sufficiency of the Bureau of Indian Affairs' (BIA's) environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) for the proposed construction of an electrical transmission line project through significant archaeological, tribal, cultural, and religious sites, and rules that the BIA's denial of an administrative appeal was harmless error. The Public Service Company of New Mexico and Los Alamos County, New Mexico, proposed building a new 345 kilovolt (kV) transmission line to link a substation with another 345kV line and the BIA prepared an EIS, which evaluated three alternatives and a "no action" alternative to the proposed project. After BIA's Albuquerque office issued a record of decision (ROD) announcing the selection of one of the action alternatives, Indian pueblos and two environmental groups filed an administrative appeal of the ROD challenging the legal sufficiency of the EIS and arguing that the route adopted for the transmission line violated the protections guaranteed by the First Amendment and the American Indian Religious Freedom Act. Subsequently, the Assistant Secretary for Indian Affairs of the Department of the Interior dismissed the ROD appeal, and plaintiffs sought judicial review of the administrative appeal denial under the Administrative Procedure Act (APA) and challenged the adequacy of the EIS under NEPA. The district court ruled against the plaintiffs, finding the EIS adequate and dismissal of the administrative appeal harmless.

The court first vacates its temporary injunction that was granted after plaintiffs' emergency application seeking to restrain certain activities related to the transmission line project, including the removal of archaeological materials. The court next holds that regardless of the merits of plaintiffs' claims of harm from being denied an administrative appeal, the denial was harmless in view of the posture of the administrative proceeding. The briefs in support of the administrative appeal did not ask the Secretary to use his discretionary power to grant plaintiffs' request that the EIS be withdrawn. Rather, the only arguments were challenges to the legal sufficiency of the EIS. The legal issues raised by the administrative appeal concerning the EIS have now been considered and decided on their merits by the district court, and all of the issues that appellants wished to appeal further to this court have now been presented here and are decided on their merits again in this opinion. Thus, denial of the administrative appeal is not held to be prejudicial error. Because the review the plaintiffs received in the district court was identical in scope to that which they sought from the Assistant Secretary in their effort to appeal, the procedural errors they allege were harmless.

Turning to the sufficiency of the EIS, the court holds that discussion of alternatives in the EIS is adequate and the district court properly concluded that the EIS was sufficient under NEPA. The court holds that the BIA's discussion of demand-side planning, or managing energy demand, was adequate because it explained why the alternative was rejected. Although plaintiffs provided an expert opinion that demand-side planning could have achieved the project objectives, this argument challenges a matter within the agency's policymaking discretion. The court holds that the BIA adequately discussed the "no action" alternative by explaining in detail that the agency's rejection of it was because it would not address the problem of major 345kV line outages, and the related overloading of an existing 115kV system. The court also holds that the BIA adequately discussed its rejection of the alternative of upgrading the existing 115kV line as technically and economically unjustified. Finally, the court holds that the BIA provided adequate discussion for its rejection of alternatives for local generation of electricity, sufficiently addressed the potential environmental impacts on archaeological sites from the chosen alternative, and adequately discussed impacts to an endangered salamander species and two bird species located in the project area.

Counsel for Plaintiffs/Appellants
Alletta d'A. Belin
Shute, Mihaly & Weinberger
310 McKenzie St., Santa Fe NM 87504
(505) 983-9211

Counsel for Defendants/Appellees
Katherine W. Hazard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before SEYMOUR and HOLLOWAY, Circuit Judges, and ROGERS,^* United States District Judge.