Case 2:07-cv DME Document 83 Filed 08/07/09 Page 1 of 48

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1 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 1 of 48 JOHN C. CRUDEN Acting Assistant Attorney General R. LEE LEININGER U.S. Department of Justice Environment & Natural Resources Division 1961 Stout Street, Suite 800 Denver, CO (303) lee.leininger@usdoj.gov KRISTOFOR R. SWANSON U.S. Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, DC (202) kristofor.swanson@usdoj.gov BRETT L. TOLMAN United States Attorney JEANNETTE F. SWENT Assistant U.S. Attorney, USB # South State Street, #300 Salt Lake City, Utah (801) Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION ) SKULL VALLEY BAND OF GOSHUTE ) INDIANS, et al., ) Case No 2:07CV00526-DME-DN ) Plaintiffs, ) DEFENDANTS RESPONSE BRIEF ) ON THE MERITS v. ) ) Senior Circuit Judge David M. Ebel LAURA DANIEL DAVIS, et al., ) ) Defendants. ) ) TABLE OF CONTENTS

2 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 2 of 48 INTRODUCTION...1 STATEMENT OF FACTS...1 STATUTORY & REGULATORY BACKGROUND...11 I. Indian Long-Term Leasing Act...11 II. Federal Land Policy and Management Act...12 III. National Environmental Policy Act...12 STANDARD OF REVIEW...13 ARGUMENT I. The Agency Decisions Were Not the Result of Either Irregular Processes or Undue Political Influence...15 A. The Department Appropriately Followed Applicable Procedures...15 B. The Department s Decisions Did Not Result From Improper Political Influence...18 II. Associate Deputy Secretary Carson Made A Well-Reasoned Conclusion, Supported by the Record, Not to Approve the Lease...20 A. Section 415(a) Grants the Secretary Wide Discretion in Deciding Whether to Approve Leases...20 B. The Department Acted As a Prudent Trustee By Not Approving the Lease Absent Reliable Assurances as to the On-Going Protection of the Band s Reservation The Associate Deputy Secretary Made a Reasoned Conclusion On The Uncertainty of Future Waste Removal The Associate Deputy Secretary Made a Reasoned Conclusion Regarding Police Protection i-

3 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 3 of Additional Section 415(a) Factors...27 C. The Department s Trust Relationship with the Band Does Not Require Absolute Deference to the Band s Desired Land Use...28 III. Acting Assistant Secretary Calvert s Made a Well-Reasoned Decision, Supported by the Record, to Deny the Right-Of-Way...30 IV. Plaintiffs Have Failed to Present a Cognizable Claim Under NEPA...33 A. Plaintiffs Lack Standing to Assert a Claim Under NEPA...33 B. NEPA Regulations Did Not Require the Agencies to Supplement the FEIS Here...35 C. The Timing of the Department s Decision Was Well-Reasoned, And Any Further Environmental Review at the Present Time Would Be Meaningless...37 CONCLUSION ii-

4 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 4 of 48 TABLE OF AUTHORITIES CASES Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166 (D.D.C. 2000)...34 Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005)...34 Blackbear v. Norton, 93 Fed. App x. 192 (10th Cir. Mar. 5, 2004)... 6 Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) Brown v. United States ( Brown II ), 42 Fed. Cl. 538 (1998)... 21, 28 Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)...6 Camp v. Pitts, 411 U.S. 138 (1973) Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) Citizens for Alternatives to Radioactive Dumping v. Dep t of Energy, 485 F.3d 1091 (10th Cir. 2007) Citizens Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169 (10th Cir. 2008) Colo. Health Care Ass n v. Colo. Dep t of Soc. Serv., 842 F.2d 1158 (10th Cir. 1988) Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221 (10th Cir. 2004) Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996)... 33, 34 Cotton Petroleum Corporation v. U.S. Department of the Interior, 870 F.2d 1515 (10th Cir. 1989) Davis v. Morton, 469 F.2d 593 (10th Cir. 1972) iii-

5 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 5 of 48 Devia v. NRC, No , 2007 U.S. App. Lexis (D.C. Cir. June 26, 2007)...6 Fund for Animals v. Thomas, 127 F.3d 80 (D.C. Cir. 1997) Hoopa Valley Tribe v. Christie, 812 F.2d 1097 (9th Cir. 1986)...17 In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir. 1998)...14 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395 (D.S.D. 1995) Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989)... 12, 36 Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) National Ass n of Home Builders v. U.S. Army Corps of Engn rs, 417 F.3d 1272 (D.C. Cir. 2005) Nevada Land Action Ass n v. United States Forest Serv., 8 F.3d 713 (9th Cir.1993) New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) Norton v. Southern Utah Wilderness Alliance ( SUWA ), 542 U.S. 55 (2003) Nw. Sea Farms v. U.S. Army Corps of Eng rs, 931 F. Supp (W.D. Wash. 1996)...36 Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994)...13 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002)... 34, 35 Sabine River Authority v. U.S. Dep t of the Interior, 951 F.2d 669 (5th Cir. 1992)...34, 36 -iv-

6 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 6 of 48 Skull Valley Band of Goshute Indians v. Leavitt, 215 F. Supp. 2d 1232 (D. Utah 2002)...6 Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004)... 2 Taubman Realty Group Ltd. P ship v. Mineta, 320 F.3d 475 (4th Cir. 2003) United States v. Mitchell, 463 U.S. 206 (1983) United States v. Navajo Nation, 537 U.S. 488 (2003) Utah v. Dep t of the Interior, 45 F. Supp. 2d 1279 (D. Utah 1999)...6, 24 Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)... 12, 13, 28 Webster v. United States, 823 F. Supp (D. Mont. 1992)... 21, 26 STATUTES 5 U.S.C U.S.C passim 25 U.S.C U.S.C , 13, U.S.C U.S.C , U.S.C U.S.C Pub. L. No , 119 Stat v-

7 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 7 of 48 REGULATIONS 10 C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R , 28, C.F.R , C.F.R , C.F.R C.F.R C.F.R C.F.R C.F.R , Fed. Reg. 34,658 (Aug. 31, 1984) Fed. Reg. 38,474 (Sept. 18, 1990) Fed. Reg. 57,005 (Sept. 28, 2006) Fed. Reg. 58,629 (Oct. 4, 2006) Fed. Reg (Feb. 7, 2006) vi-

8 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 8 of 48 INTRODUCTION Plaintiffs Skull Valley Band of Goshute Indians and Private Fuel Storage applied to the Department of the Interior ( Department ) for approval of a lease and right-of-way, respectively, to transport nuclear waste across public lands and store it in a planned facility on the Skull Valley Band s Reservation. After years of environmental review, public comment, and consultation with the Skull Valley Band, the Department s Associate Deputy Secretary declined to approve the proposed lease, determining that allowing nuclear waste onto the Skull Valley Band s Reservation would be imprudent in light of the statutory factors he must consider and Department s trust relationship with the Band. Similarly, the Department s Acting Assistant Secretary for Land and Minerals Management denied the right-of-way application, finding its approval would be against the public interest. Plaintiffs now challenge both those decisions under the Administrative Procedure Act as arbitrary and capricious and contrary to law. As detailed below, however, both decisions were well-reasoned and supported by the record. Plaintiffs requested relief should therefore be denied. STATEMENT OF FACTS In May 1997, the Skull Valley Band of Goshute Indians ( the Band ), a federally recognized Indian Tribe, and Private Fuel Storage (PFS), a private consortium of eight licensed nuclear power plant operators, agreed to a First Amended and Restated Lease ( first lease ) for placing an Independent Spent Fuel Storage Installation ( ISFSI or facility ) on the Band s Reservation. See AR SOL 03A-09, pp. 1 47; 1/ see AR SOL 7M-01, p. 115 (facility map). The 1/ The administrative record index and CDs containing the electronic volumes are organized by Batch Number. The designations SOL-SLC and SOL-WDC refer to documents compiled (continued...) -1-

9 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 9 of 48 Reservation is located in Tooele County, Utah, approximately seventy miles west of Salt Lake City. See AR SOL 12N-07, p.2. Under the lease, the ISFSI would store spent nuclear fuel (SNF), consisting mostly of intact fuel rods removed from various nuclear facilities across the country. See AR SOL 12N-08, p. 10; see also AR SOL 7M-01, p. 87 (map of reactor sites). Because SNF remains radioactive for thousands of years, long-term storage strategies are essential. However, the search for the safest solution has been long and difficult. Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1227 (10th Cir. 2004). PFS intended the ISFSI to be a temporary facility licensed for up to forty years with the spent nuclear fuel shipped from the facility to a permanent repository before the lease of Reservation land expired. See AR SOL 7N-01, p. 89. The ISFSI s use as a temporary facility was based on the assumption that a permanent repository would be available at the end of the Skull Valley facility s lease and license. See AR SOL 7N-01, pp PFS identified two options for transporting the spent nuclear fuel to the Reservation. The preferred option involved creating a new rail spur originating from the Union Pacific mainline at Low Junction south of I-80 and proceed[ing] along the western side of Skull Valley for 32 miles on [Bureau of Land Management] land to the Goshute Reservation. AR SOL 4B-28, p. 1; 1/ (...continued) by the Department of the Interior s Office of the Regional Solicitor in Salt Lake City, and Office of the Solicitor in Washington, DC, respectively. Those designations are followed by an alphanumeric identifier, e.g., 12N-00001, used to group similar documents, and an additional numeric identifier, e.g., , used to identify individual files under each document group. Each electronic file is then separately page-numbered. Defendants have not cited to any of the SOL-WDC documents and have therefore shortened their citations herein to include only the alpha-numeric identifier and file identifier. For example, file SOL-SLC-BATCH-12N will be cited as AR SOL 12N-07. The specific pages of each file will be cited where appropriate. Defendants also submit a record appendix of the pages to which they cite. -2-

10 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 10 of 48 see also AR SOL 7M-01, p. 86 (map of proposed project). An alternative option involved offloading spent nuclear fuel shipments from the rail mainline at an Intermodal Transfer [Facility] (IT[F]) onto heavy haul truck and travel[ing] on Skull Valley Road to the reservation. AR SOL 4B-28, p. 2. PFS noted that hauling the shipments via truck would create some level of interference for traffic and the population along Skull Valley Road. See AR SOL 4B-28, p. 2. In order for the ISFSI to become operational, several federal approvals would be necessary. See AR SOL 7M-01, p The Nuclear Regulatory Commission (NRC) regulates spent nuclear fuel storage. See 42 U.S.C ; 10 C.F.R. pt. 72. PFS therefore applied to NRC in June 1997 for a license to receive, transfer, and possess spent nuclear fuel, and operate the storage facility. See AR SOL 7M-01, p. 98. Further, the Surface Transportation Board (STB) regulates new rail lines. See 49 U.S.C Therefore, STB would need to grant a license for the construction and operation of the proposed rail transport. See AR SOL 7M-01, p Additionally, the Bureau of Indian Affairs (BIA) is a trustee for the Band and its land. See AR SOL 7M-01, pp Pursuant to the trust relationship, and the authority in 25 U.S.C. 415, the Secretary of the Interior would be required to approve the lease for Reservation lands. See AR SOL 7M-01, pp The Bureau of Land Management ( BLM ), pursuant to the Federal Land Policy and Management Act, 43 U.S.C. 1761, would also have to grant a right-of-way for any rail-line or transfer facility on federal lands. See AR SOL 7M-01, pp The BIA is divided into twelve Regional Offices, which collectively oversee eighty-three Agency or Field Offices, each responsible for administering BIA programs on one or more -3-

11 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 11 of 48 reservation. On May 23, 1997, the BIA Superintendent for the Uintah and Ouray Agency Office, which has jurisdiction over the Band s Reservation, signed a conditional approval of the first lease. See AR SOL 3A-14, p.1. The first lease was for a period of twenty-five years, with an option to extend for an additional twenty-five years. See AR SOL 3A-09, p. 11. In January 2002, the Band and PFS entered into a Second Amended and Restated Lease ( second lease ) with essentially the same terms. See AR SOL 8A-02, pp BIA took no action at that time to approve the second lease, conditionally or otherwise. On August 28, 1998, PFS filed an application for rights-of-way with the BLM s Salt Lake District Manager for the two transportation options. See AR SOL 4B-28, pp Application U requested the preferred option of a right-of-way for the thirty-two-mile railroad spur. See AR SOL 4B-28, p. 8. The second option became Application U 76986, which requested a right-of-way for the ITF, to be built on approximately twenty-one acres of BLM-administered public land. See AR SOL 4D-12, p. 2. For the planned project as a whole, NRC took on the role of lead agency in preparing an Environmental Impact Statement (EIS) under the National Environmental Policy Act to analyze the proposed storage facility s potential environmental effects. See AR SOL 6B-36, pp. 1-3; AR SOL 4D-16, p. 2. BLM and BIA took on roles as cooperating agencies in preparing the EIS. See AR SOL 4D-16, p. 2; AR SOL 4D-18, p. 2. The STB also acted in the role of a cooperating agency. See AR SOL 5K-21, p. 1. The agencies issued a Draft EIS in June See AR SOL 6H-01. In December 2001, they then issued the Final EIS (FEIS). See AR SOL 7M-01 and SOL -4-

12 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 12 of 48 7N-01. 2/ The FEIS analyzed several alternatives for the proposed project. See AR SOL 7M-01, pp The preferred alternative, as the FEIS identified, was construction and operation of the facility on the Reservation, with spent nuclear fuel transported via the proposed rail line through BLM lands. See AR SOL 7M-01, p The proposed ISFSI and necessary transportation of spent nuclear fuel was highly controversial from the beginning, with well-documented public and political opposition. See, e.g., AR SOL 3D-25 (Oct. 7, 1997, Congressman Cook press release urging Committee to oppose spent nuclear fuel storage on Reservation); AR SOL 4B-14 (July 1, 1998, Salt Lake Tribune article on Utah Governor seeking support from other Governors to oppose Band s plan); AR SOL 5A-01 (Jan Enviro-Justice Newsletter on nuclear nightmare proposal to transport spent nuclear fuel to Skull Valley); AR SOL 6G-21 (May 26, 2000, Salt Lake Tribune article on Utah s attempts to stop Skull Valley proposal); AR SOL 7C-03 (Jan. 28, 2001, Salt Lake Tribune article on Band Chairman s state of the Tribe report); AR SOL 8A-08 (Jan. 11, 2002, Salt Lake Tribune article on Skull Valley and Yucca Mountain debates in Utah and Nevada); AR SOL 9A-03 (Jan. 6, 2003, Salt Lake Tribune article on Band members that oppose spent nuclear fuel storage); AR SOL 10A-24 (Feb. 2, 2004, Indianz.com report on court decision); AR SOL 11A-05 (Mar. 14, 2005, Inter Press Service News Agency report on conflicts within Band on proposal); AR SOL 12A-14 (Feb. 8, 2006, Deseret News report on BLM s request for additional public comment on 2/ Given the size of the Draft EIS and Final EIS, Defendants have only included in the appendix the specific pages to which they cite. In addition, documents found at AR SOL 6H-01 (754 pages), AR SOL 12B-01 (1,424 pages), AR SOL 12D-01 (848 pages), and AR SOL 12F-01 (1,190 pages) are voluminous and therefore are not reproduced in the Appendix. They are, however, referenced in the Appendix with complete record citation format to aid in locating the documents in the electronic Administrative Record. -5-

13 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 13 of 48 proposal). The opposition continued through the public commenting periods for the EIS and the BLM rights-of-way applications. See AR SOL 7N-01; AR SOL 12B-1 through AR SOL 12F-1. The strong opposition to nuclear waste storage on the Reservation resulted in several administrative and judicial challenges to the project and its requisite Government approvals. The State of Utah and certain members of the Band unsuccessfully challenged the BIA s conditional approval of the first lease. See Utah v. Dep t of the Interior, 45 F. Supp. 2d 1279 (D. Utah 1999), affirmed by 210 F.3d 1193 (10th Cir. 2000). The State of Utah unsuccessfully attempted to place statutory hurdles in front of the project. See Skull Valley Band of Goshute Indians v. Leavitt, 215 F. Supp. 2d 1232 (D. Utah 2002), affirmed by 376 F.3d 1223 (10th Cir. 2004). Dissident members of the Band also unsuccessfully challenged NRC authority to license private SNF storage away from reactor facilities, and petitioned for rulemaking on the concept. See Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004). Later, Band members made an additional challenge, again unsuccessfully, to various Tribal and BIA actions surrounding the conditional approval of the first lease. See Blackbear v. Norton, 93 Fed. Appx. 192 (10th Cir. 2004). A group of Band members have also since challenged the NRC license itself. See Devia v. NRC, No , 2007 U.S. App. LEXIS (D.C. Cir. June 26, 2007) (staying action in light of this suit). But opposition to the project was not limited to judicial proceedings. Congressional opposition to nuclear waste storage on the Reservation was particularly strong. 3/ United States 3/ See, e.g., AR SOL 6L-07 (news article on Sen. Bennett denouncing waste dump); AR SOL 9B- 40 (DOI tasking report with copy of letter from entire Utah Congressional delegation expressing concern); AR SOL 11B-15 (news article on Sen. Hatch pitching assault on PFS); AR SOL 11B-16 (news article that Sen. Hatch takes aim at PFS ); AR SOL 11B-60 (letter from Sen. Hatch to Sec. Norton on utilities and other issues); AR SOL l1b-61 (letter from BLM Dir. Hughes to Sen. Hatch stating that BLM will open public comment); AR SOL 11B-62 (Sen. (continued...) -6-

14 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 14 of 48 Senators Hatch and Bennett, representing Utah, met with administrative officials to lobby against the project. On June 29, 2006, for example, the Senators reportedly met with then-secretary Dirk Kempthorne to call the issue [of nuclear waste storage on the Band s reservation] to his attention and to pay close attention to all the merits... convinced that on the merits [the opposition] point of view would come out on top. See Ex. 4 to Pls. Br. (Doc. No. 78-6) (allowed into record as part of the Court s March 2, 2009, Order). This wasn t a case of political pressure, but rather an effort to present Department of the Interior officials with what the Senators believed to be a strong case against the project. See id. The United States Congress also acted legislatively to prevent the proposed plan s preferred transportation alternative. In January 2006, the United States Congress passed the 2006 National Defense Authorization Act. See Pub. L. No , Section 384, 119 Stat. 3136, available at AR SOL 11B-85, pp The Act designated certain public lands, portions of which would have been subject to PFS s proposed rail spur, as part of a new Cedar Mountain Wilderness Area. See AR SOL 12A-38, pp.1, 5. The Act specifically prohibited in the Wilderness Area all forms of entry, appropriation or disposal under the public land laws, which effectively prohibited the BLM right-of-way necessary for PFS s proposed rail line. 119 Stat. at This placed a statutory bar on the FEIS s preferred alternative. See AR SOL 12N-08, p. 2. 3/ (...continued) Hatch news release on BLM public comment); AR SOL 12C-01, pp (letter from Senators Hatch and Bennett commenting on BLM rights-of-way proposals); AR SOL 12C-01, pp (letter from Sen. Hatch commenting on BLM rights-of-way proposals); AR SOL 12J- 01, pp (printout from Sen. Hatch s website on opposition to waste site submitted as part of BLM public comment); AR SOL 12M-02 (news article regarding Sen. Hatch concerns over project site); AR SOL 12M-50, pp (letter from Sen. Hatch forwarding letters from school children); AR SOL 12M-50, pp (letters of Congressmen Bishop, Matheson, Cannon). -7-

15 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 15 of 48 Plaintiffs concede that they are not challenging the Wilderness designation, or promoting the previously-preferred alternative. See Pls. Br. at 6 n.3. On February 7, 2006, BLM issued a Federal Register notice soliciting public comment on PFS s proposed rights-of-way. See AR SOL 12A-11. The BLM based the solicitation on: (1) the new Cedar Mountain Wilderness Area and its effective prohibition on the rail line; and (2) changes in the BLM regulations governing rights-of-way (43 C.F.R ). See AR SOL 12A-11, pp. 1 4 (Federal Register notice). The public response overwhelmingly opposed BLM issuing a right-of-way for the project. A BLM summary of the public comments noted that approximately eighty percent of 9,600 comments opposed the proposed nuclear waste transport and storage. See AR SOL 12M-50, p. 1. On February 21, 2006, the NRC issued Materials License No. SNM-2513, Docket No , to construct and operate the proposed ISFSI. See AR SOL 12A-31, pp.1 2 (notice of license issuance); AR SOL 12A-29, pp (approved license). Thereafter, the Chairman of the Band repeatedly wrote and met with Department of the Interior officials, asking them to issue a decision on the lease. See AR SOL 12M-22, pp. 1 3; AR SOL 12M-27; AR SOL 12M-34, pp On September 7, 2006, responding to the Band s requests, the Department of the Interior issued two records of decision. One, signed by James E. Cason, Associate Deputy Secretary, withheld the Secretary s approval for the Band and PFS s proposed lease ( Cason Decision ). See Notice of Availability, 71 Fed. Reg. 58,629 (Oct. 4, 2006); AR SOL 12N-07, pp The other, signed by Chad Calvert, Acting Assistant Secretary, Land and Minerals Management, denied PFS s right-of-way applications ( Calvert Decision ). See Notice of Availability, 71 Fed. -8-

16 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 16 of 48 Reg. 57,005 (Sept. 28, 2006); AR SOL 12N-08, pp Both decisions are summarized below. The Cason Decision The Cason Decision declined to approve the proposed lease. See AR SOL 12N-07. The Associate Deputy Secretary noted Department s primary duty as trustee-delegate, under the law regarding this and other proposed leases, [is] the protection of the trust res as a future homeland and productive land base for the Band through the prudent exercise of informed discretion after considering all relevant factors. AR SOL 12N-07, p. 18. Within that standard, uncertainty surrounding the availability of a permanent repository for the nuclear waste being brought onto the Reservation in a temporary capacity gave the trustee no confidence as to when the spent nuclear fuel might leave the Reservation. See AR SOL 12N-07, p. 29. This, combined with the Secretary s practical inability to remove or compel [the spent nuclear fuel s] removal once deposited on the Reservation, counsel[ed] disapproval of the proposed lease. See AR SOL 12N- 07, p. 29. The Associate Deputy Secretary had not satisfied himself that adequate consideration had been given to certain issues, as 25 U.S.C. 415(a) requires, and decided it was not consistent with the conduct expected of a prudent trustee to approve a proposed lease that promotes storing [spent nuclear fuel] on the reservation. See AR SOL 12N-07, p. 19. The Calvert Decision The basis for denying the rights-of-way is thoroughly set out in a cover letter (BLM Letter) and Record of Decision (BLM ROD). See AR SOL-12N-08. In summary, the BLM ROD concludes that the proposed rights-of-way would be contrary to the public interest. See AR SOL- 12N-08, p. 9. BLM reviewed numerous comments on the Draft EIS as well as additional comments pursuant to BLM s request for comments on the two right-of-way applications. See -9-

17 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 17 of 48 AR SOL-12N-08, p. 2. The BLM ROD concluded that the proposed rail line would be inconsistent with BLM s responsibilities to manage the Cedar Mountain Wilderness Area. See AR SOL-12N-08, pp ; Pub. L. No , 119 Stat This left the ITF as the only viable proposed transportation alternative. Yet the FEIS rejected the ITF alternative in favor of the preferred rail-line alternative because of the former s impact to local traffic on Skull Valley Road and the additional radiation to which workers at the ITF site would be exposed. See AR SOL 7M-01, p The BLM ROD found that, in addition to the concerns identified in the FEIS, the record failed to consider a number of other factors associated with the ITF alternative, such as any impacts from eventual removal of SNF from the Reservation along Skull Valley Road; an analysis of the Tekoi Balefill facility, a waste disposal site on the Reservation approved after preparation of the FEIS (AR SOL-12N-08, pp. 6,7); and the restriction on storage of hazardous materials in the BLM Pony Express Resource Management Plan (AR SOL-12N-08, p. 3, 4, 19). The BLM ROD found additional support for its decision from statements of elected and other federal government officials that the Private Fuel Storage initiative is not part of the Department [of Energy s] overall strategy for the management of spent nuclear fuel and high-level radioactive waste. AR SOL-12N-08, p. 24. With all the federal resources committed to the Yucca Mountain site, there would be no federal funds to assist with the proposed PFS facility. See AR SOL 12N-08, p. 24. Plaintiffs now challenge the Cason and Calvert Decisions under the Administrative Procedure Act as arbitrary and capricious, and contrary to law. -10-

18 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 18 of 48 STATUTORY & REGULATORY BACKGROUND I. Indian Long-Term Leasing Act The Indian Long-Term Leasing Act, 25 U.S.C. 415, requires the Secretary of the Interior s approval before any owner of Indian lands may lease the lands. See 25 U.S.C. 415(a). The Act extends to leases for business purposes. See id. The Act, with exceptions not applicable here, caps each lease s temporal scope at twenty-five years, with the possibility of extensions for up to twenty-five additional years. See id. Prior to approving any lease, the Secretary is required to satisfy him- or herself that adequate consideration has been given to five issues. See id. The issues are: [1] the relationship between the use of the leased lands and the use of neighboring lands, [2] the height, quality, and safety of any structures or other facilities to be constructed on such lands, [3] the availability of police and fire protection and other services, [4] the availability of judicial forums for all criminal and civil causes arising on the leased lands, and [5] the effect on the environment of the users to which the leased lands will be subject. Id. All lease approvals and renewals are subject to regulations prescribed by the Secretary. See id. Here, those regulations are found at 25 C.F.R. pt Under the regulations, the Department defers, to the maximum extent possible, to the landowners decision on whether the lease is in their best interest. See 25 C.F.R Once a lease is active, the regulations require the Department to ensure that tenants comply with the operating requirements in their leases[.] 25 C.F.R If necessary, the Department must take emergency action as needed to preserve the value of the land. Id. Further, the regulations authorize the Department to enter the lease premises to protect the interests of the Indian landowner. See 25 C.F.R. -11-

19 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 19 of In certain situations, the Department is required to cancel leases and order the tenant, subject to appeal, to vacate the property within 30 days. See 25 C.F.R II. Federal Land Policy and Management Act The Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1761(a), authorizes the Secretary to grant, issue, or renew rights-of-way over, upon, under, or through [public] lands for... (6) roads, trails, highways,... or other means of transportation.... Id. Such rights of way issue subject to such terms and conditions as the Secretary concerned may prescribe regarding extent, duration, survey, location, construction, maintenance, transfer or assignment, and termination. Id. 1764(c). Regulations require BLM to: [C]onsider a number of factors in deciding whether to grant or deny an application for a right-of-way. Among these factors are (1) the project s consistency with BLM s management of the public lands; (2) the public interest; (3) the applicant s qualifications to hold a grant; (4) the project s consistency with [the Federal Land Policy Management Act], other laws, or regulations; (5) the applicant s technical or financial capability; and (6) the applicant s compliance with information requests. Notice of Request for Comments, 71 Fed. Reg (Feb. 7, 2006); see 43 C.F.R (a); AR 12A-11, p. 1. III. National Environmental Policy Act Congress passed the National Environmental Policy Act (NEPA) to focus governmental and public attention on the potential environmental effects of any major federal action. See 42 U.S.C. 4332; Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989). Council on Environmental Quality regulations provide guidance to agencies in applying the statute. See 40 C.F.R ; Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). NEPA s statutory and regulatory mandate is essentially procedural. Vt. Yankee Nuclear Power -12-

20 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 20 of 48 Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978). It is to ensure that an agency s decision to act in manner potentially affecting the environment is fully informed and well-considered. See id. As part of its procedural mandate, NEPA requires federal agencies to prepare an Environmental Impact Statement (EIS) for any major federal action... significantly affecting the quality of the human environment. See 42 U.S.C. 4332(C). STANDARD OF REVIEW Plaintiffs challenge the Cason and Calvert Decisions as arbitrary and capricious, and not in accordance with law. Under the Administrative Procedure Act, an agency decision that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law may be set aside. 5 U.S.C. 706(2)(A). An agency decision may be arbitrary and capricious if it fails to consider important relevant factors or if there is no rational connection between the facts found and the choice made. Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, (1983); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). The duty of a court reviewing agency action under the arbitrary or capricious standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). The Court s review is highly deferential. Citizens Comm. to Save Our Canyons v. Krueger 513 F.3d 1169, 1176 (10th Cir. 2008) (citation omitted). Furthermore, [i]n reviewing the agency s explanation, the reviewing court must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. Id. A presumption of validity attaches to the agency action and the burden of proof -13-

21 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 21 of 48 rests with the appellants who challenge such action. Colo. Health Care Ass n v. Colo. Dep t of Soc. Serv., 842 F.2d 1158, 1164 (10th Cir. 1988). An agency s stated reasons survive review under the arbitrary and capricious standard if the agency has examine[d] the relevant data and articulate[d] a rational connection between the facts found and the decision made. New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, (10th Cir. 2009) (quoting Citizens Comm., 513 F.3d at 1176); In re Subpoena Duces Tecum Served on the Office of the Comptroller of Currency, 156 F.3d 1279, 1279 (D.C. Cir. 1998) (When a party challenges agency action as arbitrary and capricious, the reasonableness of the agency s action is judged in accordance with its stated reasons. ) The reviewing court considers only the agency s administrative record to determine whether an agency had sufficient support for its decision. Citizens for Alternatives to Radioactive Dumping v. Dep t of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007). The actual subjective motivation of agency decisionmakers is immaterial as a matter of law - unless there is a showing of bad faith or improper behavior. Comptroller of Currency, 156 F.3d at If an agency decision is not sustainable on the basis of the administrative record made, then the [agency s] decision must be... remanded to [the agency] for further consideration. Camp v. Pitts, 411 U.S. 138, 143 (1973). ARGUMENT Plaintiffs have not shown that either the Associate Deputy Secretary or Acting Assistant Secretary for Land and Minerals Management acted arbitrarily and capriciously, or contrary to law. Here, the decision-maker in both instances acted in accordance with law and made a reasoned decision supported by the record. Additionally, Plaintiffs have failed to bring a cognizable claim under NEPA. Plaintiffs requested relief should therefore be denied. -14-

22 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 22 of 48 I. The Agency Decisions Were Not the Result of Either Irregular Processes or Undue Political Influence. As an initial matter, the Court should reject Plaintiffs attempts to change the standard of review by arguing the agency decision-making was either irregular or improperly influenced by political factors. Previously in this litigation, Plaintiffs attempted but failed to make a strong showing of bad faith or improper conduct by the agency sufficient to warrant expansive discovery or supplementation of the record. See Order Regarding Motions to Permit the Introduction of Extra-Record Evidence and For a Protective Order (Mar. 2, 2009) (Doc. No. 77). Consequently, Plaintiffs make no new allegations of bad faith in their present brief. Instead, they now allege that the agencies employed irregular procedures, and that deviation from established procedures destroys the presumption of administrative regularity. See Pls. Br. at The alleged irregularities include a failure to follow internal guidelines, and a bowing to undue political influence from the Utah Congressional delegation. See Pls. Br. at Both arguments fail. A. The Department Appropriately Followed Applicable Procedures. Plaintiffs argue the agency violated guidelines contained in the Department of the Interior s Departmental Manual (Part 512, Chapter 2) that detail consultation with Tribes on agency decisions that potentially impact Tribal resource assets. See Pls. Br. at 41; Ex. 5 to Pls. Br. (allowed into record as part of the Court s March 2, 2009, Order). But here the Department did engage in meaningful consultation with the Band. The Administrative Record is replete with evidence of agency consultation with the Skull Valley Band during the years-long process of -15-

23 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 23 of 48 evaluating the applications. 4/ Further, the Manual itself details that consultation is aimed at ensuring any potentially affected Tribe may fully evaluate the potential impact of the proposal on trust resources and that the Department, as trustee, may fully incorporate tribal views into the decision-making process. Ex. 5 to Pls. Br. The Department s decade-long record of good-faith consultation with the Band more than meets both those obligations. The Band s desired result was wellknown indeed, the Band itself was one of the entities proposing the project. Thus, Plaintiffs only argument is seemingly that (1) the Department did not inform the Band ahead of time that 4/ The following are Administrative Record citations to correspondence and meetings between the Band and the Department of the Interior. The list includes only the direct contacts with the Band leadership, and does not include the numerous correspondence with attorneys for the Band: AR SOL 2A-12 (Dec. 27, 1996, letter forwarding lease for review); AR SOL 3A-04 (Feb. 13, 1997, fax with suggested lease edits); AR SOL 3A-06 (Feb. 27, 1997, fax with suggested lease edits); AR SOL 3A-12 (Mar. 21, 1997, letter with lease); AR SOL 3D-04 (June 20, 1997, letter regarding Utah FOIA claim); AR SOL 5A-38 (Mar. 12, 1999, fax of news article); AR SOL 5B- 21 (Apr. 14, 1999, fax from Kevin Carter re: MOU); AR SOL 5B-22 (April 22, 1999, fax on members concerns); AR SOL 5B-23 (Apr. 22, 1999, fax on legislative amendment); AR SOL 5B-47 (May 10, 1999, letter on legislation); AR SOL 5B-50 (May 12, 1999, letter on BLM land nominations); AR SOL 5F-25 (Aug. 2, 1999, letter on state lands); AR SOL 5F-28 (Aug. 5, 1999, letter on legislation); AR SOL 5I-13 (Nov. 3, 1999, letter asking for support on legislation); AR SOL 6O-28 (Nov. 21, 2000, letter on lease amendments); AR SOL 6T-05 (Dec. 18, 2000, letter regarding public comment); AR SOL 6T-10 (Dec. 21, 2000, letter on NATO issues); AR SOL 7C-71 (Mar. 19, 2001, letter on economic venture proposals); AR SOL 7E-10 (Apr. 20, 2001, letter forwarding complaint); AR SOL 7L-69 (Nov. 28, 2001, alternative economic development proposals); AR SOL 8A-29 (Jan. 31, 2002, letter regarding lease approval); AR SOL 8B-09 (Mar. 11, 2002, follow-up letter to meeting); AR SOL 8B-22 (Mar. 25, 2002, letter on Tribal government dispute);ar SOL 8C-16 (Apr. 25, 2002, letter on alleged theft of Tribal lands); AR SOL 9C-08 (July 9, 2003, DOI tasking report); AR SOL 9C-31 (Oct. 1, 2003, letter on NHPA authority); AR SOL 9C-33 (May 5, 2003, Department tasking report); AR SOL 10A-35 (Apr. 1, 2004, fax regarding Tribal meeting); AR SOL 12A-39 (Feb. 24, 2006, letter urging decision on lease); AR SOL 12C-01, pp (letter on right-of-way public comment process); AR SOL 12M-22 (Apr. 21, 2006, letter in follow-up to meeting); AR SOL 12M-27 (May 1, 2006, response letter); AR SOL 12M-34 (May 17, 2006, response letter); AR SOL 12M-44 (June 26, 2006, meeting notes); AR SOL 12M-46 (June 30, 2006, letter); AR SOL 14A-07 (undated letter on land exchange). -16-

24 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 24 of 48 the Department planned not to approve the lease and to deny the right-of-way applications; and (2) that the Department did not follow the Band s preferred action. For the first, Plaintiffs ignore the fact that the Band made clear it wanted a decision approving the lease, and it wanted it soon. See AR SOL 12M-22, pp For the second, Plaintiffs fail to recognize that the Secretary s trust relationship extends beyond simply obeying the Band s preferences to protection of the trust res as a future homeland and productive land base for the Band through the prudent exercise of informed discretion after considering all relevant factors. AR SOL 12N-07, pp Contrary to what Plaintiffs seem to assume, [c]onsultation is not the same as obeying those who are consulted. The [Plaintiffs] were heard, even though their advice was not accepted. Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1103 (9th Cir. 1986); see also Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995) ( Meaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views to the BIA decision maker. ). In support of their argument on irregular procedures, Plaintiffs also inappropriately rely on Cotton Petroleum Corporation v. U.S. Department of the Interior, 870 F.2d 1515 (10th Cir. 1989). In Cotton, the Tenth Circuit determined that the Secretary s actions were arbitrary and capricious because [t]he Secretary did not articulate the grounds for his decision or the essential facts upon which it [was] made. Id. at In particular, the Secretary did not address the very factors required under the guidelines he issued and he made no effort to explain his failure to do so. Id. at / Here, as detailed above and in the sections that follow, the agency did not 5/ Plaintiffs inappropriately expand the ruling in Cotton to argue that any deviation from agency procedures and regulations demonstrates that the decisions are not entitled to the deference (continued...) -17-

25 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 25 of 48 ignore either its guidelines or the required statutory factors. B. The Department s Decisions Did Not Result From Improper Political Influence. Plaintiffs next argue that the agency based its decisions on improper political influence. This argument also fails. While not explicitly claiming bad faith, Plaintiffs assert that the agency s decisions relied on and accommodated the views of Utah politicians. Pls. Br. at 43. But Plaintiffs ignore the fact that public officials submitted their views in response to BLM s invitation for public comment. Letters were received from thousands of Utahns including Senators, Representatives, the Governor, mayors, environmental organizations, school children and other ordinary citizens opposing the transport and storage of spent nuclear fuel in the State. 6/ 5/ (...continued) normally afforded administrative decisions. See Pls. Br. at 1. Clearly this is overreaching. Whether the agency abused its discretion is not judged solely on whether the agency precisely followed prior departmental procedures or guidelines. Rather, the determination is whether the decision-maker set forth a reasoned explanation and discussed and analyzed all the essential facts upon which it was made. 6/ Approximately eighty percent of the 9,600 comments received are negative (AR SOL 12M-50, p. 1). See, e.g., AR SOL 12M-50, pp. 4 5, (Letters from Reps. Matheson, Bishop, and Cannon); AR SOL 12M-50, p. 8 (Letter from First Presidency of Church of Jesus Christ of Latter-day Saints asking for support to develop new options for disposal of nuclear waste); AR SOL 12M-50 pp. 9 10, 351 (Letter from Women Concerned/Utahns United voicing their opposition to plan); AR SOL 12M-50 pp. 10, (Glen Canyon Group Sierra Club - Overwhelming opposition to site from Utah); AR SOL 12M-50 pp (Letters from Utah elementary school students); AR SOL 12M-50, p. 197 (Letter from Carlene Walker, Utah State Senator); AR SOL 12M-50, p. 198 (Letter from Howard Stephenson, Utah State Senator); AR SOL 12M-50, p. 201 (Letter from Lyle Hillyard, Utah State Senator); AR SOL 12M-50, p. 202 (Letter from Scott McCoy, Utah State Senator); AR SOL 12M-50, p. 205 (Letter from LaWanna Shurtliff, State Representative); AR SOL 12M-50, p. 206 (Letter from leadership of State House of Representatives); AR SOL 12M-50, p. 208 (Letter from Todd Kiser, State Representative; AR SOL 12M-50, p. 209 (Letter from Sheryl Allen, State Representative); AR SOL 12M-50, p. 211 (Letter from David Clark, State Representative); AR SOL 12M-50, p. 212 (Letter from Thomas (continued...) -18-

26 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 26 of 48 On July 18, 2006, the BLM Salt Lake Field Office prepared a summary for the BLM State Director analyzing the last round of public comments. See AR 12M-50 p Contrary to Plaintiffs argument, it is a fair-minded document with the comments of the Skull Valley Band and PFS are prominently featured not buried along with other comments in support. Plaintiffs even admit that BLM staff specifically retrieved the Skull Valley Band s letter supporting the project from the thousands of comments, attached it to the Field Office memorandum, and forwarded it to the decision-makers in Washington. Pls. Br. at 47 ( To the credit of the Salt Lake BLM field office, they plucked the Band s May 8 letter, the one discussing Goshute treaty rights, out of the protest bin, and sent it to Washington with [BLM Area Manager] Glenn Carpenter s July 18 memorandum. ); see AR SOL 12M-50, pp Nonetheless, the vast majority of the comments opposed the project. A record of public comments heavily weighted in opposition to an agency approval hardly supports an allegation that undue political influence led to the agency decisions here. Instead, comments from both public officials and the general public raised a number of 6/ (...continued) Hatch and Roger Barrus, Utah State Senate and House Chairs, Natural Resources, Agriculture, and Environment Interim Committee); AR SOL 12M-50, pp (Letter from Utah Transportation Commission expressing concern about traffic interfering with public transportation corridors); AR SOL 12M-50, p. 226 (Letter from Patti Harrington, State Superintendent of Public Instruction and member of Utah Technology Council); AR SOL 12M-50, pp (Letter from Salt Lake Valley Conference of Mayors expressing concern about private entity and public safety); AR SOL 12M-50, p. 242 (Letter from Mayor of Cottonwood Heights); AR SOL 12M-50, pp (Resolutions of Clinton City and Fruit Heights); AR SOL 12M-50, p. 255 (Letter from Alison McFarlane, Senior Advisor for Economic Development for Salt Lake City, expressing concern about effects of project on economy); AR SOL 12M-50, pp (Letter from Mayor of Sandy City); AR SOL 12M-50, pp (Letter from Mayor of Provo City); AR SOL 12M-50, p. 349 (Letter from Senior Class President, Associated Students of the University of Utah). -19-

27 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 27 of 48 questions regarding the technical nature of the entire project and the inadequacy of the analysis of the proposed ITF. See supra n.6. The BLM Area Manager agreed and opined that the BLM does not have all the required information related to the ITF as it relates to security and jurisdiction. AR SOL 12M-50, p. 2. The Acting Assistant Secretary therefore determined he did not have sufficient support for a decision to grant the right-of-way. The decision is fully supported by the record and is not, as Plaintiffs argue, acquiescing to the views of Utah politicians. The Court has already found that there is no indication that Defendants, in reaching the challenged agency decisions, improperly considered any political factors (March 2, 2009, Order at 25), and Plaintiffs offer no new evidence here. II. Associate Deputy Secretary Cason Made A Well-Reasoned Conclusion, Supported by the Record, Not to Approve the Lease. The Associate Deputy Secretary, in not approving the lease, acted well within the discretion 25 U.S.C. 415(a) grants to the Secretary of the Interior. The Associate Deputy Secretary made a reasoned conclusion, supported by the record, that uncertainties surrounding if and when the nuclear waste would ever leave the Band s Reservation, and the Department s ability to enforce the lease terms, made it imprudent for the Department, as the Band s trustee, to approve the lease. which states: A. Section 415(a) Grants the Secretary Wide Discretion in Deciding Whether to Approve Leases. The Secretary s approval of Tribal business leases is governed by 25 U.S.C. 415(a), Prior to approval of any lease or extension of an existing lease pursuant to this section, the Secretary of the Interior shall satisfy himself that adequate consideration has been given to the [five listed factors]. -20-

28 Case 2:07-cv DME Document 83 Filed 08/07/09 Page 28 of U.S.C. 415(a). Section 415(a) places a duty on the Secretary to adequate[ly] consider[ ] the enumerated factors before approving a long-term lease. Brown v. United States ( Brown II ), 42 Fed. Cl. 538, 552 (1998) (modifications and emphasis in original). But Section 415(a) affords the Secretary broad discretion in satisfying himself that adequate consideration has been given. Webster v. United States, 823 F. Supp. 1544, (D. Mont. 1992) (emphasis added). The statute allows wide judgment on the part of the Secretary to determine when he is satisfied, [and] what constitutes adequate consideration. Id. at Thus, contrary to Plaintiffs assumptions (see Pls. Br. at 24 25), Section 415(a) does require the Secretary to be satisfied all the factors have been adequately considered before approving a lease, and grants the Secretary wide discretion in making that determination. This Court, in addressing litigation by the State of Utah on the Band s lease application, has stated that in approving or rejecting leases pursuant to 415(a), the Secretary acts in a trust or fiduciary capacity. Utah v. Dep t of the Interior, 45 F. Supp. 2d at The Court noted that [t]he legal attributes of such a relationship include a duty on the part of the trustee to act solely in the best interests of the trust beneficiary. Id. The Secretary must administer trust property with such care and skill as a man of ordinary prudence would exercise in dealing with its own property. See Brown II, 42 Fed. Cl. at 563 (quoting Restatement (Second) of Trusts (1959)). B. The Associate Deputy Secretary Acted Within His Discretion By Not Approving the Lease Absent Reliable Assurances as to the On-Going Protection of the Band s Reservation. Here, the Associate Deputy Secretary analyzed the lease in the context of the Sectoin 415(a) and Department s trust relationship with the Band and ultimately concluded that prudence -21-