ELR Citation: ELR 20255
No(s). s. 05-56814 et al (9th Cir. Nov 10, 2009)

The Ninth Circuit affirmed in part and reversed in part a lower court decision that the BLM violated NEPA and the Federal Land and Policy Management Act (FLPMA) when it agreed to a land exchange with a developer for several parcels of BLM land surrounding a former mining site near Joshua Tree National Park. The land exchange would allow the developer to build a landfill on the mining site. The Ninth Circuit agreed with the lower court that the BLM should have taken the reasonably probable use of public lands for a landfill into consideration as part of its highest and best use analysis under FLPMA. The BLM's appraisal of the land, therefore, was improper. In addition, the EIS' purpose and need statement was unreasonably narrow. As a result, the BLM considered an unreasonably narrow range of alternatives. The EIS also insufficiently addressed the potential for eutrophication. However, the court disagreed that the BLM erred in its determination that the exchange well-serves the public interest. The record as a whole establishes that the BLM's interpretation of "full consideration," as evinced by the analyses in the EIS, is permissible under FLPMA. And contrary to the lower court's finding, the EIS contains extensive analyses of potential impacts on Bighorn sheep. The case was therefore remanded.