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. .__ av: • PAGE 10/30 <br />• <br />33. Through Chese actions, DOE engaged in overt acts which <br />had the effect of approving WAZ's expansion of its sand and <br />gr:cvel operations onto federal land. As the surface owner of the <br />Prcposed Mining Area, Defendant DOE has the ability to control <br />use and access. Defendant DOE explicitly assented to the mining <br />company's Proposed Mine Expansion by drafting and executing an <br />Access and Surface Use Agreement. <br />34. As the public trustee of federal property and the <br />Buffer Zone, Defendant DOE has a legal duty to assert its rights <br />on the public's behalf. Defendant DOE's failure to reasonably <br />restrict WAI's access to the Proposed Mining Area on the public's <br />behalf amounts to inaction as defined in 40 C.F.R. § 1508.18. <br />35. ay failing to prepare a NEPA document concerning wAI's <br />mining proposal, DOE has unlawfully withheld compliance with <br />NEPA, 42 II_S_C. § x332, within the meaning of the Administrative <br />Procedure Act. 5 U.S.C. § 70611). DOE's action, and inaction, <br />concerning WAI's sand and gravel mine expansion absent compliance <br />with NEPA is arbitrary and capricious, an abuse of discretion, <br />not :gin accordance with the law, and without observance of <br />procedures required by law within the meaning of the <br />Administrative Procedure Act. 5 U.S.C. § 706(2). <br />SECOND CLAIM FOR RELIEF <br />(vio'Lation of a3 U.S.C. § 4332 (NEPA)(Categorical Exclusions for <br />Road Easements) - Against DOE) <br />36_ Each and every allegation set forth in the Second <br />Amended Complaint is incorporated by reference. <br />37. NEPA regulations define categorical exclusion as "a <br />Second Amended Complain <br />10 <br />