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1 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 1 of 25 Paul C. EchoHawk (ISB # 5802) Matthew S. EchoHawk (ISB # 7048) ECHOHAWK LAW OFFICES 505 Pershing Avenue P.O. Box 6119 Pocatello, Idaho Telephone: (208) Facsimile: (208) paul@echohawk.com matt@echohawk.com Attorneys for the Shoshone-Bannock Tribes IN THE UNITED STATES DISTRICT COURT SHOSHONE-BANNOCK TRIBES OF THE FORT HALL RESERVATION, v. Plaintiff, UNITED STATES DEPARTMENT OF THE INTERIOR; AND UNITED STATES BUREAU OF LAND MANAGEMENT, Defendants. FOR THE DISTRICT OF IDAHO ) ) ) ) ) ) ) ) ) ) ) ) Case No. 4:10-CV-4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff Shoshone-Bannock Tribes, through its attorneys of the firm ECHOHAWK LAW OFFICES, allege as follows: INTRODUCTION Courthouse News Service 1. This is an appeal of the June 5, 2009 Interior Board of Land Appeals decision affirming the December 21, 2007 decision of the Pocatello Field Office of the Bureau of Land Management ( BLM ) to approve a land exchange that will result in the expansion of the Pocatello Simplot Don Plant phosphogypsum stack located on the

2 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 2 of 25 Eastern Michaud Flats NPL Superfund site. The BLM approved the land exchange by releasing an Environmental Assessment ( EA ) and a Finding of No Significant Impact ( FONSI ) without complying with the Environmental Impact Statement ( EIS ) requirement of the National Environmental Policy Act ( NEPA ). The lands selected for the exchange are on Howard Mountain adjacent to the existing Simplot Don Plant and partially within the Eastern Michaud Flats NPL Superfund site. 2. The Plaintiff Shoshone-Bannock Tribes ( Tribes ), files this suit for declaratory and injunctive relief under the Administrative Procedures Act ( APA ), 5 U.S.C , the Federal Land Policy and Management Act ( FLPMA ), 43 U.S.C et seq., the National Environmental Policy Act of 1969 ( NEPA ), 42 U.S.C et seq., Executive Order 12898, the National Historic Preservation Act, 16 U.S.C. 470 et seq., and their implementing regulations, challenging the decisions of the United States Department of the Interior, its Board of Land Appeals ( IBLA ), and its Bureau of Land Management ( BLM ) to approve a large land exchange with the J.R. Simplot Company ( Simplot ) that will facilitate the expansion of the phosphogypsum waste stack at the Simplot Pocatello Don Plant and the Eastern Michaud Flats ( EMF ) NPL Superfund site in Idaho adjacent to the Fort Hall Reservation. 3. The Fort Hall Reservation is adjacent to the lands on Howard Mountain and the EMF superfund site. However, the entire area at issue is within the Tribes aboriginal homelands as set forth in the 1868 Fort Bridger Treaty with the Eastern Band of Shoshoni and Bannock Tribes of Idaho (15 Stat. 673) and entirely within the portion of the original Fort Hall Reservation ceded by the Tribes in 1898 (Agreement of COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2

3 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 3 of 25 February 5, 1898 between the United States and the Shoshone-Bannock Tribes, ratified by the Act of June 6, 1900, 31 Stat. 672). Article 4 of the Fort Bridger Treaty recognizes the Tribes off-reservation hunting and fishing rights, including the BLM land selected for exchange in this case. The EA/FONSI does not properly analyze and consider the reasonably foreseeable and indirect environmental impacts resulting from the expansion of the Simplot gyp stack on the selected exchange lands. These impacts include negative effects on air quality, groundwater, human health, plants & animals, a Tribal cultural site, and Tribal off-reservation treaty rights. The EA/FONSI also does not properly analyze and consider the cumulative effects and indirect impacts of the land exchange on the environment and public interests. 4. The Tribes submit this appeal based on BLM s failure to prepare an EIS to analyze the significant impacts to the human environment resulting from this land exchange as required under NEPA. In approving the land exchange, the BLM failed to adequately protect the public interest and environmental resources, including the cultural and environmental resources at and around the land exchange area as required by FLPMA and the trust responsibility owed to the Shoshone-Bannock Tribes. The BLM also failed to adequately evaluate the land exchange s effects and impacts as required by NEPA and FLPMA. II. THE PARTIES 1. The Shoshone-Bannock Tribes is a federally-recognized sovereign Indian Tribe organized pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), as amended by the act of June 15, 1935 (49 Stat. 378). The Tribes have standing to challenge agency action under the provisions of the APA. The lands selected for COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3

4 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 4 of 25 exchange are within the Tribes aboriginal territory and subject to the Tribes treaty rights. The Tribes are impacted by the land exchange because of the loss of treaty territory and damage to fish and wildlife species, diminished use and enjoyment of the area, and increased environmental pollution and degradation that will result from expanding the Simplot gypsum stacks. 2. The Defendant United States Department of the Interior ( DOI ) is an agency of the United States government with oversight responsibilities for the federal lands subject to the challenged land exchange. The Interior Board of Land Appeals ( IBLA ) is part of the Interior Department s Office of Hearings and Appeals. The IBLA s denial of the Plaintiff s request for a stay of the land exchange is a final agency action subject to judicial review. In addition, the IBLA s appeal denial decision is a final agency action subject to judicial review under the APA. The Department of the Interior at all relevant times controlled, supervised, and administered the lands subject to the challenged exchange which are part of the Tribes ceded territory and subject to the Tribes off-reservation treaty rights. At all relevant times the Department of the Interior owed a general trust responsibility to the Tribes to protect and preserve the land and resources subject to the Tribes treaty rights and interests. 3. Defendant Bureau of Land Management ( BLM ) is an agency of the DOI. The BLM approved the challenged land exchange and denied the Tribes protest to the BLM State Director. The BLM has responsibility for the federal lands selected for the exchange. In its June 5, 2009 decision, the IBLA affirmed the December 21, 2007 BLM Decision Record/FONSI implementing the EA, and denied the Tribes administrative appeal. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 4

5 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 5 of 25 III. JURISDICTION AND VENUE 4. The Plaintiff has a right to bring this action pursuant to the APA, FLPMA, and NEPA. The Court has jurisdiction over this action pursuant to 28 U.S.C (federal question), 28 U.S.C (Indian tribes), 5 U.S.C (judicial review provisions of the Administrative Procedures Act), and is authorized to issue a declaratory judgment and the requested injunctive relief pursuant to 28 U.S.C and Venue for this action is proper in the Federal District Court for the District of Idaho under 28 U.S.C (b) and (e). The BLM Pocatello Field Office is located in Pocatello, Bannock County, Idaho. The federal land selected for exchange is located on Howard Mountain in Bannock and Power Counties, Idaho. The private land subject to the exchange is in the Blackrock Canyon area within Bannock County, Idaho. 6. Venue is also proper under 28 U.S.C. 1391(e). IV. FACTUAL ALLEGATIONS 7. The allegations in the preceding paragraphs are reasserted as if fully set forth herein. 8. The Plaintiff Shoshone-Bannock Tribes ( Tribes ) is a federally recognized Indian Tribe occupying reserved Indian lands on the Fort Hall Reservation. 9. In the summer of 1987, the EPA detected elevated levels of heavy metals in sediments of the unlined ponds that served both the Simplot and FMC phosphate processing operations and in waste water at the Simplot facility. In addition, arsenic, cadmium, and selenium were detected in monitoring wells in the deep confined aquifer. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 5

6 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 6 of 25 In all 2,530 acres of land surrounding the phosphate facilities were found to have contamination levels of concern. The Simplot Pocatello Don Plant was classified as part of the Eastern Michaud Flats ( EMF ) Superfund site located adjacent to the Fort Hall Reservation, the Portneuf River, and the Cities of Pocatello and Chubbuck. The EMF site was listed on the National Priority List ( NPL ) in 1990, and the site covers approximately 2,530 acres. The J.R. Simplot Company and the FMC Corporation phosphate ore companies are the principle responsible parties at the NPL Superfund site. These processing facilities operated from the early 1940 s until the FMC facility closed in the December of The Simplot Don Plant facility is still an active operating facility. 10. The Simplot Don Plant and EMF site are sources of known substantial environmental contamination and pollution of the local area and Reservation environment affecting important natural resources and human health. Specifically, groundwater contamination caused by the existing phosphogypsum stacks ( gyp stacks ) at the Simplot Pocatello Don Plant is one of the major justifications for designating the site as a Superfund site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Public wells within 3 miles of the area provide drinking water to an estimated 55,000 people and are used to irrigate over 2,000 acres of crops. 11. In 1994, Simplot submitted a land exchange proposal to the BLM Pocatello Field Office for Simplot to acquire from BLM lands adjacent to Simplot s Don Plant for a buffer zone area and future gypsum stack construction. In 1996, the exchange process moved forward and an Environmental Assessment (EA) to analyze COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 6

7 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 7 of 25 impacts of the proposed exchange was initiated. Shortly thereafter, the land exchange was put on hold. 12. In 2002, Simplot renewed talks with the BLM and asked that proposed land exchange include additional public and private lands. The land exchange challenged in this action exchanges of public land adjacent to the Simplot Pocatello Don Plant for acres of private land in the Blackrock and Caddy Canyon areas located southeast of Pocatello. 13. The acres of public land subject to the challenged land exchange is located in both Power and Bannock counties and is adjacent to J.R. Simplot s existing gypsum storage area and phosphate processing facility known as the Simplot Pocatello Don Plant. This public land is entirely within the Tribes aboriginal territory and entirely within the portion of the original Fort Hall Reservation. The land exchange would privatize public land previously subject to the Tribes off-reservation treaty rights. The land exchange will also result in the destruction of a recognized Tribal cultural site. A map showing the public land subject to the exchange is attached hereto as Exhibit A. 14. The acres of private land offered by Simplot in the land exchange is located in the Blackrock and Caddy Canyon areas approximately nine miles southeast of Pocatello. A map showing these private lands is attached hereto as Exhibit A. 15. On March 7, 2005, April 3, 2007, and June 19, 2007, the Tribes sent letters to the BLM outlining a number of objections to the proposed land exchange and requesting a response from BLM. True and correct copies of the letters are attached hereto as Exhibits B, C, and D. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 7

8 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 8 of On December 21, 2007 the BLM Pocatello Field Manager issued a Decision Record, FONSI, and EA with a determination to complete the Simplot/Blackrock lands exchange between the BLM and the J.R. Simplot Company. True and correct copies of the Decision Record/FONSI and EA are attached hereto as Exhibit E. 17. On February 5, 2008 the Tribes sent the BLM a letter protesting the decision to issue a FONSI for the land exchange. The letter identified numerous concerns which were inadequately addressed in the EA and requested clarification regarding the Tribes opposition to the land exchange. A true and correct copy of the February 5, 2008 letter is attached hereto as Exhibit F. 18. On February 21, 2008, the EPA sent BLM at letter expressing a number of concerns about the potential significant, indirect impacts that may result from construction of an additional phosphogypsum stack on the selected federal lands. A true and correct copy of the February 21, 2008 letter is attached hereto as Exhibit G. 19. On February 25, 2008, the Tribes sent BLM a supplemental letter of protest reiterating and presenting additional information regarding the numerous Tribal concerns with the land exchange and gypsum stack expansion. A true and correct copy of the letter is attached hereto as Exhibit H. 20. On October 2, 2008, the BLM Idaho State Director issued a letter dismissing the Tribes protest of the land exchange. A copy of the letter is attached hereto as Exhibit I. On October 3, 2008, the BLM sent EPA a letter rejecting EPA s recommendations relating to land exchange. See Exhibit J. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 8

9 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 9 of The Tribes filed a Notice of Appeal and Petition For Stay on October 30, See Exhibit K. The Tribes submitted a Statement of Reasons supporting the appeal on November 19, See Exhibit L. The J.R. Simplot Company submitted a Motion for Intervention and Response to Petition for Stay on November 25, See Exhibit M. On February 9, 2009 the Interior Board of Land Appeals (IBLA) issued an order permitting Simplot to intervene and denying the Tribes request for a stay. See Exhibit N. 22. On June 5, 2009, the IBLA issued a decision affirming the decision of the BLM State Director dismissing the Tribes protest of the December 21, 2007 Decision Record/FONSI/EA. See Exhibit O. The Tribes submit this timely appeal from the BLM/IBLA decisions. 23. The Tribes assert that the required NEPA process was not followed in properly analyzing the land exchange in this case. The Tribes oppose the land exchange and resulting expansion of the Simplot gypsum stacks at the EMF Superfund site because it will result in unnecessary and undue degradation and negative environmental impacts in the following areas: Air Quality 24. Air quality will be adversely affected by the land exchange and associated expansion of the surface area of the gypsum stack because the expansion will increase fugitive dust and increase the re-distribution of contaminants to the populated downwind locations in Pocatello/Chubbuck and Fort Hall Reservation. The EMF ROD noted that fugitive dust may be a source of contaminants. (EMF ROD Air.) Section of the EMF ROD points out that contaminants are found downwind of COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 9

10 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 10 of 25 the EMF site and those contaminants are found surrounding the entire site. Increasing the surface area of the gypsum stacks increases these adverse environmental impacts. The EA fails to sufficiently analyze the environmental impacts of increasing the surface area of the gypsum stacks through the land exchange. 25. The BLM s decision record and FONSI dated December 21, 2007 recognizes that [t]he Off-Plant Areas received contaminants through air-borne emissions from the phosphate plant s cooling tower emissions. The land exchange allows the existing Simplot operations to continue these air-borne emissions that cause damage to area environment and natural resources. The EA does not properly consider the impacts of the land exchange s facilitation of increased air-borne contamination of the environment. Groundwater 26. Simplot has to-date been unable to demonstrate that the company has been able to capture contaminated groundwater from the existing gypsum stack. Thus, the gypsum stack is a continuing source of contamination, and the land exchange (and intended expansion of the gypsum stacks) will increase the environmental harm caused by increased contaminated groundwater flow into the environment. In March of 2009, the EPA proposed changes to the Record of Decision (ROD) for the Simplot Operable Unit (Simplot OU) of the EMF Superfund site. Major components of the EPA s recommended changes include: Identifying phosphorus in groundwater as a contaminant of concern ; Characterizing all contamination sources at or near the phosphoric acid plant; Control of all phosphorus contamination sources to the extent practicable; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 10

11 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 11 of 25 Installation of a high-density polyethylene (HDPE) liner on top of the phosphogypsum pile, which is known as the gypstack, to minimize process water infiltration through the gypstack and into groundwater; Continued development, operation, and maintenance of the groundwater extraction system to address those areas where arsenic and phosphorus concentrations remain above cleanup standards or levels of concern. 27. The EA does not sufficiently acknowledge and analyze the land exchange s negative impacts on groundwater, and the EA fails to properly analyze the risk of increased groundwater contamination caused by the expanded surface area of the gypsum stacks. The December 21, 2007 BLM Decision Record and FONSI states: Some opposition to the exchange of lands was raised because of concerns over the new phosphate facility being adequately designed to prevent further groundwater contamination in the area. However, if the exchange was not approved, the need for the gypsum waste disposal area would still exist and Simplot would likely develop it on another parcel of ground. (BLM Decision Record/FONSI dated 12/21/07, p. 2.) This assumption is unsupported, speculative, and cannot serve as a basis for failing to analyze the impact of the land exchange on the environment and increased groundwater contamination that is likely from expanded gypsum stacks. The Decision Record/FONSI also attempts to justify the lack of environmental analysis by pointing out that any future development will be subject to the appropriate regulatory authorities including local, state and Federal oversight. The failure to complete an EIS cannot be justified by assuming that future regulation will remedy environmental impacts caused by the land exchange. 28. The EA s insufficient analysis of the impact of the proposed exchange on the area s groundwater is further evidenced by the lack of groundwater data necessary to support the EA s finding of no significant impact. The EA states: [T]here are three distinct hydrogeologic areas in the vicinity of the phosphate processing facilities, known as the Michaud Flats, Bannock Range, and the Portneuf River. Groundwater contamination was COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 11

12 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 12 of 25 identified as part of the EMF Superfund Site in the Portneuf River and Michaud Flats areas and is being remediated as directed by the EPA. Groundwater in the area of the EMF Superfund site has been extensively studied. However, the selected lands are within the Bannock Range area where continuous hydrostratigraphic units have not been delineated. No known groundwater wells exist on the selected lands. Therefore, groundwater studies have not been done. (EA at pg. 9) (emphasis added). The EA acknowledges that no groundwater wells exist on the selected lands. Without knowing the status of the Bannock Range groundwater, it is impossible to understand the impact of expanded gyp stacks on the groundwater. Thus, the EA s analysis in this area is deficient. The EA also acknowledges that the water on the selected lands flows north, right through the existing EMF site. Regardless of liners, the water from expanded gyp stacks may flow right onto and through the existing EMF site causing an exacerbation of existing groundwater contamination problems. Although a liner has been proposed for new gypsum stacks, the EA does not adequately review the feasibility of liners to prevent groundwater contamination in the steep terrain of the land exchange site. In addition, the Tribes were not given an adequate opportunity to comment on the liner because the information was presented by BLM after the original EA comment period. 29. The EA does not sufficiently address the impact of the exchange on water quality. The EA states: The exchange of lands would not impact water quality but activities allowed on them after the exchange could potentially improve or degrade the water quality depending on what the activity is and how it is done. (EA at pg. 17.) This analysis is lacking in depth or support. The EA acknowledges that the existing gypstack negatively impacts water quality and that the selected land will be used for an expanded gypstack, but the EA does not contain any analysis of how the land exchange will impact groundwater quality. Assuming groundwater protection by relying on COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 12

13 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 13 of 25 future regulation without required NEPA analysis is insufficient. A full EIS is necessary to determine the impact of the land exchange on groundwater quality and to analyze alternative action, including the no action alternative, to prevent groundwater contamination at the selected site. Human Health Risks 30. The EA relies on outdated information pertaining to human health risks. Information on human health impacts of the current EMF site is incomplete, and expansion of the problem area should not be approved until these risks and effects are better understood. The need for additional study of the EMF s negative human health effects is demonstrated by the 1999 FMC RCRA Consent Decree requirement for a human health study of FMC s impacts on the Reservation resident health. See 1999 FMC RCRA Consent Decree, SEP 14. The U.S. Department of Health and Human Services Agency for Toxic Substances & Disease Registry has classified the EMF contamination NPL site as a Public Health Hazard. See CEQ requires that incomplete or unavailable information must be acknowledged as such. The EA is inadequate in analyzing the impacts of increased gypsum stacks on human health and the local environment. Cumulative Impacts 31. The Simplot site is part of the EMF NPL Superfund site, which has substantial known negative impacts on the area environment and human health. The EA does not sufficiently analyze the impact of increasing the size of the gyp stacks, which is a known source of the EMF environmental problems. Facilitating the expanded COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 13

14 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 14 of 25 storage of hazardous waste, hazardous substances, and other toxic materials at the Simplot site may compromise the EMF CERCLA remediation and natural resources restoration efforts. The EA does not properly analyze the increased risk that harmful by-products of Simplot s activities will migrate to Reservation lands and local environment and cause additional damage and risk to Tribal member health, the residents of the Fort Hall Reservation, and to the residents of the surrounding communities. The EA s discussion of cumulative impacts contains largely only bare conclusions with no supporting data and lack significant analysis required by NEPA and its implementing regulations. (EA at pp ) 32. The EA incorrectly concludes that Areas of Critical Environmental Concern, Environmental Justice, Indian Trust Resources, Fisheries, and Visual Resources are Not Affected by the land exchange. (EA at pg. 5.) The EA designation of these areas as not affected by definition means that they were not further considered in [the EA s] environment analysis. (EA at pg. 5.) All of the abovelisted areas are present and affected negatively by the proposed land exchange, and an Environmental Impact Statement should be ordered to properly analyze the impact of the exchange on these important areas. 33. The cumulative impacts section of the EA contains only conclusions based on unproven assumptions while at the same time acknowledging potential serious negative impacts to the environment. (EA at pg. 25.) This section is woefully inadequate under NEPA standards and requires complete quantifiable analysis through an EIS. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 14

15 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 15 of 25 Reasonably Foreseeable and Indirect Impacts 34. The EA acknowledges that the selected exchange lands will be used for expanded gypsum storage but avoids any meaningful analysis of the impact of this known use on the environment. The EA fails to adequately analyze the impact of this use by stating: The proponent has not developed a plan for the potential future development of the Federal (offered) land or any other potential site. Therefore, it is impossible at this time to assess specific future environmental effects of any potential development. (EA at pg. 19.) 35. The EA also acknowledges, without further analysis the following: It is possible that placement of a new gyp-stack on the Federal lands could result in additional impacts to those already existing at the EMF site if the design, construction, operation, final reclamation, and closure of the stack are not carefully assessed and implemented.... Another concern that exists regarding the potential for future impacts is that regulations governing the design and construction of a gyp-stack within the State of Idaho do not exist. (EA at pg. 22.) This concern was also expressed by EPA Region 10. Id. This acknowledgement further demonstrates that the proposed land exchange and intended use of the selected land will likely have a significant negative impact on the environment. This impact requires analysis under a complete EIS. If the land exchange is approved absent a full EIS, the future construction of an expanded gyp stack will not be analyzed under NEPA. If the Federal lands were conveyed by patent to the proponent, an environmental analysis under the National Environmental Policy Act (NEPA) would not be applicable to assess potential impacts and appropriate mitigation for a future expansion of the gyp-stack. The lands associated with the project would be private lands. Idaho does not have an equivalent State NEPA review process. Analysis and regulation of a gyp-stack expansion on private lands within the State of Idaho COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 15

16 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 16 of 25 would be addressed using other rules and regulations. (EA at pg. 22.) An EIS analysis of the land exchange and gyp storage expansion must occur now under NEPA or a similar analysis of its impact on the environment will never occur. 36. In a letter dated February 21, 2008, the EPA expressed several concerns with the EA. See Exhibit G, attached hereto. The letter stated in part: Our review of the EA/FONSI/DR concludes that, as currently written, the documents do not fully analyze or mitigate for potentially significant indirect environmental effects. (Letter dated February 21, 2008 from EPA to the BLM, attached hereto as Exhibit G.) The EPA letter correctly points out that the FONSI/DR makes no formal commitment to mitigate for potentially significant indirect effects of a reasonably foreseeable new gypstack and further that [t]he DR does not cite specific authorities that would require a liner, but cites the general authorities for clean water and air. Id. The EPA letter also points out that the EA s acceptance of Simplot s language of intent to install an appropriate liner for a new gyp stack falls short of an actual agreement that could in turn be brought forward into the FONSI/DR as mitigation. Id. 37. The EPA s letter also correctly takes issue with the EA s conclusion that existing gypstack materials have low liquefaction potential and are likely not to be susceptible to failure and slide. Id. at pg. 2. EPA points out that the lined Agrium gypstack experienced a slide and wall failure where approximately 2 million gallons of hazardous wastewater from the pond portion of their new stack were released. The EPA s letter concluded: It has not been demonstrated that the selected lands would be appropriate for a new gypstack especially in light of the conclusion in the May 1996 Feasibility Study developed by J.R. Simplot and provided to EPA which states that the COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 16

17 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 17 of 25 location is too craggy and mountainous for a liner and therefore was not considered for further evaluation. Id. The EPA further points out that the EA does not include discussion of financial assurance that would provide for proper operation, closure, post closure, or contingency planning that may be necessary and the FONSI/DR makes no commitments for financial assurance. Id. The EPA letter includes the following recommendation: Recommendation: EPA believes that the EA should acknowledge that a new gypstack is a reasonably foreseeable indirect impact and that the potential impacts could be significant without mitigation. We believe, therefore that the FONSI/DR should state that an enforceable mechanism will be in place to provide adequate mitigation and financial assurance before the land exchange occurs. Such a mechanism would ensure proper design, operation, and safeguards to prevent the potential for significant adverse impacts and support a FONSI/DR in lieu of an EIS. There are a number of potential vehicles for implementing an enforceable mitigation strategy and we would welcome the opportunity for further discussions. Id. at pp The BLM rejected the EPA s recommendation and proceeded to approve the land exchange without additional recommended analysis. Tribal Cultural Site 38. The EA does not properly consider the impact of the destruction of cultural site 10-PR-666 that will result from the land exchange. The land exchange is a federal government action that significantly impacts the environment because the mitigations for destruction of the cultural site do not reduce, minimize, avoid, eliminate, repair, rehabilitate, restore, or compensate for the impacts of the land exchange. The reference to a future MOU without specifying the detail of the MOU or mitigation is insufficient, particularly where the Tribes are not a party to the MOU. An MOU to address destruction of a Tribal cultural site is not sufficient where the Tribes are excluded as a party. It is not sufficient to substitute Idaho SHPO for the Tribes. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 17

18 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 18 of 25 The EA states: The land exchange would be contingent upon the MOA being agreed to and signed by all parties. (EA at pg.26.) The Tribes have not agreed to the MOA in part because the Tribes oppose the land exchange. Tribal Treaty Rights 39. The EA recognizes that the land exchange will reduce Tribal treaty right area but does not adequately address the impact of reducing public lands available for the exercise of Tribal treaty rights. (EA at pg. 17.) The Fort Bridger Treaty of 1868 guarantees the Tribes right to hunt, fish, gather, and conduct grazing on the unoccupied lands of the United States. The land exchange reduces these treaty lands in an area adjacent to the Fort Hall Reservation, and the EA does not conduct an adequate analysis of this impact and mitigation of the treaty rights reduction. Public Interest 40. The FONSI/EA erroneously concluded that the land exchange serves the public interest. The challenged land exchange facilitates continued and increased air pollution, and is a step-backward from remediating the EMF site. The EA incorrectly states that the Tribes support the exchange. (EA at pg. 2). In fact, the Tribes object to the land exchange. The Record of Decision for the Pocatello Resource Management Plan (RMP) and Final Environmental Impact Statement (1988) on page 33 states: No public lands within the old Fort Hall Reservation Boundary of 1898 area will be offered for disposal through sale. However opportunities for exchange may provide benefits to the Off-Reservation rights and will be closely coordinated with the Tribes. (RMP at pg. 33.) The Tribes clear objection to this land exchange is contrary to the RMP and COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 18

19 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 19 of 25 violates the BLM s policy of closely coordinating alienation of land within the Tribes 1898 Reservation boundary. 41. The EA acknowledges that the selected land is within the Pocatello Special Recreation Management Area (SRMA) and provides some recreational opportunities such as hunting, mountain biking, horseback riding, hiking, and offhighway vehicle riding. (EA at pg. 11.) Destruction of these opportunities is not in the public interest. 42. The EA bases its public interest determination almost exclusively on the economic interest of the proponent and the jobs and economic/tax benefits to the local non-indian communities. The EA s public interest determination does not address the social/economic impact of the exchange on the Fort Hall Reservation or the impact of facilitating the expansion and continued operation of Simplot in an un-remediated NPL Superfund area. (EA at pg. 19.) V. FIRST CLAIM FOR RELIEF (Violation of FLPMA) 43. The allegations in the preceding paragraphs are reasserted as if fully set forth herein. 44. Under the Federal Land Policy and Management Act of 1976 (FLPMA), in managing the public lands the Secretary of the Interior shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands. The Act provides that it is the policy of the United States that public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values, and that COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 19

20 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 20 of 25 will preserve and protect public lands, habitat for fish, wildlife, and domestic animals, and that will provide for outdoor recreation and human occupancy and use. 45. The land exchange will create unnecessary and undue degradation of the public lands by giving the selected public land to the Simplot Company for expansion of its gypsum stacks at a known NPL Superfund site. There is no rational connection between the land exchange decision and the facts found and supported by evidence and analysis. The BLM did not undertake the proper analysis required by FLPMA to address the environmental effects of the land exchange. The BLM failed to prevent unnecessary and undue degradation of the selected public lands subject to the land exchange. 46. The BLM s interpretation of FLPMA and decision to approve the land exchange was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and not in accordance with the Federal Land Policy and Management Act of 1976, 43 U.S.C et seq. (FLPMA). VI. SECOND CLAIM FOR RELIEF (Violation of NEPA) 47. The allegations in the preceding paragraphs are reasserted as if fully set forth herein. 48. NEPA establishes procedures that require the BLM to take a hard look at the environmental consequences of the land exchange. Chief among these procedures is the preparation of an environmental impact statement ( EIS ). NEPA requires preparation of an EIS for major federal actions significantly affecting the quality of the human environment. Every EIS must provide a full and fair discussion of significant COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 20

21 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 21 of 25 environmental impacts of the proposed agency action. Pursuant to CEQ regulations, federal agencies must insure the professional integrity of the discussions and analysis in each EIS. NEPA documents must be supported by evidence that the agency has made the necessary environmental analysis. Unsupported conclusions and assumptions violate NEPA. 49. An EIS serves two purposes: 1) it ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; and 2) it guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision. 50. In addition, every EIS must rigorously explore and objectively evaluate all reasonable alternatives to that action, including a no-action alternative. The analysis of alternatives to the proposed action is the heart of the environmental impact statement. The existence of reasonable but unexamined alternatives renders an EIS inadequate. 51. The land exchange challenged in this action is a major federal action significantly affecting the environment. As such, the land exchange proposal required the preparation of an EIS. By failing to prepare a proper EIS for the land exchange, the BLM violated NEPA. 52. The BLM violated NEPA by failing to take a hard look at the environmental consequences of the land exchange in the EA. The BLM failed to adequately analyze and respond to substantive comments submitted in opposition to the land exchange. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 21

22 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 22 of The EA improperly assumed that a gyp stack expansion would occur regardless of the land exchange and thus improperly failed to analyze the no action alternative. 54. To comply with NEPA, the BLM must consider all direct, indirect, and cumulative environmental impacts of the proposed action. Cumulative effects include impacts resulting from the incremental impact of the proposed action when added to other past, present, and reasonably foreseeable future actions. BLM failed to fully consider the direct, indirect, and cumulative impacts of and from the land exchange. 55. The land exchange will cause significant, direct, indirect, and/or cumulative negative impacts on the environment, and the BLM erred in failing to consider these impacts and in making a finding of no significant impact. 56. The BLM failed to establish the baseline conditions of the affected environment, failed to address the land exchange s environmental impacts, and failed to discuss mitigation measures in sufficient detail. 57. The BLM decision approving the land exchange was not supported by substantial evidence and was arbitrary, capricious, an abuse of discretion, and contrary to the public interest. The BLM s actions and omissions in approving the land exchange violate NEPA and its implementing regulations. VII. THIRD CLAIM FOR RELIEF forth herein. (Violation of Trust Responsibility Owed to Shoshone-Bannock Tribes) 58. The allegations in the preceding paragraphs are reasserted as if fully set COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 22

23 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 23 of In carrying out its treaty obligations with the Indian tribes the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous Supreme Court decisions, the Government of the United States has charged itself with moral obligations of the highest responsibility and trust. Its conduct as disclosed in the acts of those who represent it in dealings with the Indians should therefore be judged by the most exacting fiduciary standards. United States v. Mason, 412 U.S. 391, 398 (1973); Seminole Nation v. United States, 316 U.S. 286, (1942). This trust responsibility restrains federal governmental action that affects Indians and therefore is an important source of protection for Indian rights. The trust responsibility of the United States applies to all federal agencies and to federal actions occurring outside the boundaries of Indian reservations. See, e.g., Nance v. EPA, 645 F.2d 701 (9 th Cir. 1981). Numerous executive orders also require the government to protect Tribal interests including, but not limited to: Executive Order (government to government consultation policy for proposed federal actions affecting tribes), Executive Order (Environmental Justice), Executive Order (Indian Sacred Sites), and Executive Order (Protection and Enhancement of the Cultural Environment). 60. In approving the land exchange, the BLM has failed to live up to its trust responsibility and the obligations imposed by the above-referenced executive orders designed to protect Indian tribal interests. VIII. PRAYER FOR RELIEF WHEREFORE, the Plaintiff, by and through undersigned counsel, respectfully requests judgment against Defendants jointly and severally, as follows: COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 23

24 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 24 of 25 A. For an order declaring that the BLM s decision approving the land exchange, including the issuance of the Decision Record/FONSI violate the FLPMA, NEPA, and the United States trust responsibility, and the other abovereferenced laws, the APA, and their implementing regulations; B. For an immediate and permanent injunction prohibiting Defendants, their agents, servants, employees, and all others acting in concert with them, or subject to their authority or control, from proceeding with the land exchange, pending full compliance with the requirements of federal law; C. For an award of costs, including attorney s fees, incurred with respect to the commencement and prosecution of this action, pursuant to 28 U.S.C et seq. and any other applicable statutory or equitable principles; and D. For an order granting such further relief this court deems just and proper under the facts presented. DATED this 6 th day of January, ECHOHAWK LAW OFFICES By /s/paul C. EchoHawk Paul C. EchoHawk, of the firm Attorneys for Plaintiff COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 24

25 Case 4:10-cv CWD Document 1 Filed 01/06/10 Page 25 of 25 CERTIFICATE OF SERVICE I hereby certify that on this 6 th day of January, 2010, I caused to be served a true and correct copy of the foregoing by the method indicated below, and addressed to the following: Secretary Kenneth Salazar Department of the Interior 1849 C Street, N.W. Washington, D.C Telephone: (202) Facsimile: (202) Director Bob Abbey Bureau of Land Management 1849 C Street NW, Rm Washington DC Telephone: (202) Facsimile: (202) United States Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C Thomas E. Moss, United States Attorney Attention: Civil Process Clerk 800 Park Blvd., Suite 600 Boise, Idaho Telephone: (208) Facsimile: (208) Registered/Certified Mail Hand Delivered Overnight Mail Telecopy (Fax) Registered/Certified Mail Hand Delivered Overnight Mail Telecopy (Fax) Registered/Certified Mail Hand Delivered Overnight Mail Telecopy (Fax) Registered/Certified Mail Hand Delivered Overnight Mail Telecopy (Fax) /s/paul C. EchoHawk ECHOHAWK LAW OFFICES H:\WDOX\CLIENTS\0001\0359\ DOC COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 25