What would you think if, on the way to your favorite national park, you had to drive past the world's largest landfill? One that would take in 20,000 tons of garbage a day, six days a week. While the prospect of such a landfill adjacent to Joshua Tree National Park remains on the drawing board, it's less likely to break ground any time soon thanks to an appellate court's ruling.
In its ruling Tuesday, a panel of the 9th U.S. Circuit Court of Appeals handed down a decision that both upheld portions of a lower court's ruling on the U.S. Bureau of Land Management's approval of the landfill and rejected portions of that ruling. While it would be premature to say this ruling hammered the final nail into the coffin of the 4,654-acre landfill proposed by Kaiser Ventures LLC, it does increase the odds against the project going forward, particularly with the change in administrations in Washington, D.C.
Kaiser officials say they are mulling their options, one of which would be to ask the entire 9th Circuit to consider their appeal of U.S. District Judge Robert J. Timlin's ruling.
"Our steadfast belief continues to be that the Eagle Mountain landfill's environmental analysis was more than adequate and that the proper legal procedures were followed in completing the land exchange," said Rick Stoddard, Kaiser's chairman and chief executive officer. "We are gratified that this was recognized by Judge Trott in his dissenting opinion."
The so-called Eagle Mountain Landfill long has been envisioned by Kaiser, which has pursued it for 20-some years and, according to the 9th Circuit's ruling, has spent upwards of $50 million pursuing it. The problem, according to environmental and park advocate groups, is that the site eyed by Kaiser not only is wrapped on three sides by the national park, but it also would impact land that supports the region's largest and healthiest bighorn sheep herd.
"Folks need to be aware that this is the most significant threat that Joshua Tree faces," Mike Cipra, the California desert program manager for the National Parks Conservation Association, said Wednesday.
To make the landfill happen, Kaiser needed to orchestrate a land exchange with the U.S. Bureau of Land Management, which owns land that surrounds an old iron ore mine that Kaiser operated from 1948 until 1983. Twenty years ago Kaiser approached the BLM with the land swap proposal, offering 2,846 of its acres for 3,481 BLM acres. In 1997, the BLM issued its final environmental impact statement on the swap and issued a record of decision, which triggered the legal battle that continues to this day.
In its mixed ruling, which sent the matter back to the lower court, the 9th Circuit's majority:
* Agreed with the district court's decision that the BLM had inaccurately appraised its lands for the swap. While the BLM's appraisal did not consider the value of the acres as a landfill, the appellate court said it should have in determining the actual value for the exchange.
* Agreed with the district court that the BLM did not thoroughly consider alternatives to the landfill as proposed by Kaiser, but rather "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."
* Reversed the district court's finding that the BLM failed to adequately address impacts to bighorn sheep posed by the proposed landfill.
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. 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.” Though the EIS does not “exactly specify” what the buffer zone entails, it does contain a “reasonably complete” discussion of this mitigation measure.
* Agreed with the lower court that the BLM failed to adequately consider how nutrients introduced into the desert landscape by the landfill might impact that landscape.
In a biting dissent, Judge Stephen S. Trott ridiculed the country's environmental laws and agonized at times over the snail's pace the case has taken through the federal court system.
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.
Kaiser, the judge noted, was proposing a landfill that would abide by "new Environmental Protection Agency guidelines." Additionally, the land in question was located mostly around the company's spent iron mines, he said. Furthermore, he wrote, "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.'”
After tracking the history of the case and outlining his dissent for 49 pages, Judge Trott signed off by stating:
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.