ELR Citation: ELR 21236
No(s). s. 97-218 (EGS), -365 (EGS) (D.D.C. Mar 31, 1999)

The court holds that the Secretary of the Interior did not violate the Administrative Procedure Act (APA) by rescinding a record of decision (ROD) that approved the issuance of a patent for and direct sale of 1,000 acres of federal land to a state for use as a low-level radioactive waste facility. The previous Secretary of the Interior initially chose not to issue the ROD until a supplemental environmental impact statement (SEIS) for the sale was completed. However, prior to the end of his administration but after a federal district court in a related matter issued a temporary restraining order (TRO) prohibiting transfer of the land, the previous Secretary transformed the SEIS into an environmental assessment (EA) and issued the ROD.

The court first holds that rescission of the ROD was not arbitrary and capricious under the APA. The current Secretary's declaration of the rescission, which was based on review of the ROD and the circumstances surrounding its issuance, states a discernible and reasoned basis for his decision to rescind. The previous Secretary knew of the TRO and, nevertheless, violated it by issuing the ROD. Further, the previous Secretary's reversal of his earlier position and transformation of the SEIS into an EA removed the issue from public comment in the middle of the public comment period. Moreover, when the previous Secretary issued the ROD, he had only addressed six of the approximately 200 protests to the sale.

The court next holds that the state is not entitled to mandamus relief directing the current Secretary to complete the sale. The language of the Federal Land and Policy Management Act (FLPMA) and its regulations make clear that the ROD neither gave the state a clear right to the patent nor required the current Secretary to deliver the patent. FLPMA states that a tract of public land may be sold where the Secretary determines the sale will serve important public objectives. But there is no requirement that once this finding is made the Secretary must proceed with the sale. Therefore, neither the previous Secretary nor the current Secretary's discretion to proceed with the direct sale of the land ended with the issuance of the ROD.

Counsel for Plaintiffs
Cynthia J. Larsen
Orrick, Herrington & Sutcliffe
400 Capitol Mall, Ste. 3000, Sacramento CA 95814
(916) 447-9200

Counsel for Defendants
Ann D. Navarro
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000