Laserfiche WebLink
The jurisdictional and practical problems created by Appellants' NEPA arguments are <br />numerous. First, as is apparent from the previous discussion, NEPA review of the proposed <br />project has already taken nearly three years, and involved multiple rounds of public comment <br />and internal federal agency appeals. Appellants ask this Board to review the adequacy of that <br />entire process under a federal statutory scheme that the Board does not administer. By <br />regulation, the Board must issue its decision on the Request at the conclusion of the one or two <br />day hearing scheduled for July 9-10, 2008. See Section 2.08.4(6)(b)(iii) of the regulations. To do <br />what Appellants request, the Board must thus evaluate a multi-year, several-hundred page factual <br />record, and immediately render a legal opinion on a question of federal law. This is not the kind <br />of role envisioned under the statutory scheme or historically performed by the Board. <br />Second, at the conclusion of this process, Appellants ask this Board to anticipate that a <br />federal court will find the federal NEPA process to be inadequate, and to "not approve" TR-111 <br />until provided "with a legal decision." Request at 2. But if the Board rejects TR-111 because the <br />Board determines that the Forest Service failed to comply with NEPA, the process stops. After <br />reviewing the Colorado regulations, MCC has been unable to find any authority for the Board to <br />invalidate or compel a federal agency to revisit a NEPA determination. At the same time, <br />without the State's approval, after review by the Board, the permit cannot go to the OSM and <br />Secretary of the Interior for final federal agency approval. See Exhibit 2, Decision, June 2, 2008 <br />at 2, 4. Consequently, if the Board chooses "not to approve" TR-111 on the grounds of <br />inadequate NEPA review, the permit will fall into procedural limbo, neither being remanded to <br />the Forest Service nor able to proceed to the OSM. At that point, the only recourse is likely a <br />detour into federal court to determine the Board's jurisdiction to reject a federal NEPA decision <br />that has not yet undergone final federal approval. This will unnecessarily delay and complicate <br />the permitting process. <br />Third, and perhaps most importantly, Appellants have a better forum to air their NEPA <br />grievances. Should they elect to challenge the EIS and ROD in federal court, as they threaten, <br />they will be before a court that has extensive experience in adjudicating compliance with NEPA. <br />A federal judge also has broad authority to remand or enjoin all the affected permits if the court <br />finds that there was a material deficiency in the NEPA process. While MCC has full confidence <br />that Appellants' challenges to the NEPA process are specious and will be rejected in federal <br />court, the critical point is that Appellants will get a full and fair hearing before an experienced <br />4842-4129-1266\7 6