ORDER

DAVID M. EBEL, District Judge.

Plaintiffs, the Skull Valley Band of Goshute Indians ("Skull Valley Band") and Private Fuel Storage, LLC ("PFS"), invoke the Administrative Procedure Act ("APA"), to obtain review of two decisions made by the Department of Interior ("DOI") 1) denying a right-of-way application submitted by PFS and 2) disapproving a lease between the Skull Valley Band and PFS. Having jurisdiction under 28 U.S.C. §§ 1331 and 1362,1 the Court VACATES those decisions and REMANDS the right-of-way application and Plaintiffs' lease to the DOI for further consideration.

I. BACKGROUND

A. Factual background

The administrative decisions at issue here stem from Plaintiffs' controversial plan to store spent nuclear fuel ("SNF") on the Skull Valley Band's reservation, located in Tooele County, Utah.2 SNF is a byproduct of nuclear generation of power; "[b]ecause SNF remains radioactive for thousands of years, long-term storage strategies are essential." Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1227 (10th Cir.2004). Many commercial reactor sites, however, were designed with minimal SNF storage because the utilities operating these plants had originally planned to reprocess the SNF. But that has not occurred, due to the relative abundance of uranium in the United States and the fear that plutonium created during reprocessing could be used for nuclear weapons. And, although the federal government agreed to take title to the SNF from the commercial power companies generating it and to provide for its permanent storage, that has not yet occurred.3 See id.

Plaintiff PFS is a Delaware limited liability company described as "a consortium of utility companies, which formed in order to seek temporary storage options for" SNF until the federal government begins accepting SNF for permanent storage. Id. at 1227-28. Currently, these companies store SNF at their reactor sites. But that on-site storage is running out. Without additional storage options, these power companies may be forced to shut down their reactors prematurely. Additionally, these utilities cannot fully decommission a reactor, after permanently shutting it down, until the SNF at that site is removed.

To solve these storage problems, PFS, in 1996, entered into an agreement with the Skull Valley Band to lease approximately 820 acres of the Band's 18,000-acre reservation in order to build and operate an SNF storage facility.4 PFS' general plan, which has already been licensed by the Nuclear Regulatory Commission ("NRC"), is to place the SNF, while it is still at the reactor sites, into sealed steel canisters that will then be encased inside NRC-certified steel shipping casks. These 150-ton shipping casks would then be loaded onto specially designed rail cars and shipped to the Skull Valley storage site on commercial rail lines using trains dedicated only to transporting SNF.

The commercial rail line closest to the Skull Valley reservation runs parallel to Interstate 80 and is approximately twenty-four miles to the north of the site of the planned storage facility. Therefore, PFS intends to build an "intermodal transport facility" ("ITF") on federally-controlled land located between that commercial rail line and the interstate. At the ITF, PFS plans to use a crane to remove the 150-ton shipping casks containing the SNF from the rail cars and place those casks on "heavy haul" trucks that will then transport the casks the final twenty-four miles to the storage facility.

These heavy-haul trucks will do so using the existing two-lane Skull Valley Road. The trucks can travel no more than twenty miles per hour, while the posted speed limit on Skull Valley Road is fifty-five miles per hour. Each trip from the ITF to the storage facility by heavy-haul truck would take approximately 1.5 hours and would occur only during daylight. On each trip, these 150- to 180-foot-long trucks would be accompanied by two escort vehicles, one travelling 1,000 feet in front of the truck, and the other 1,000 feet behind it. PFS estimates that one to two trains will arrive at the ITF weekly, with each train carrying two to three shipping casks. PFS further estimates that a heavy-haul truck would need to make between two and four round trips per week, or between 100 and 200 round trips annually.5

Once at the storage facility, PFS will remove the canisters containing the SNF from the shipping casks and place those canisters inside storage casks, which will be steel-lined, filled with concrete and weigh approximately 180 tons. The twenty-foot-high storage casks will then be placed on cement pads and cooled in the open air.

The NRC licensed PFS to store a total of 40,000 metric tons (44,000 tons) of SNF at the Skull Valley facility. Because each cannister will hold ten metric tons of SNF, the facility will contain up to 4,000 storage casks, each encapsulating a cannister of SNF. PFS intends to accept for storage SNF from its own members, as well as from other utilities.

Plaintiffs' lease runs for twenty-five years, with an irrevocable option for an additional twenty-five-year term. The NRC has licensed the storage facility for twenty years; that license can be renewed for an additional twenty years.6 See 10 C.F.R. § 72.42.

When the NRC license expires and the lease ends, PFS must decommission the facility. This will involve removing all SNF, as well as the shipping and storage casks and, at the Band's request, any buildings and the cements pads, too. The NRC license includes provisions to insure that PFS has and will maintain the economic wherewithal to complete this decommissioning.

At the time they entered into this lease, Plaintiffs expected that, by the time the NRC license expired and the lease ended, the DOE will have begun operating a permanent storage facility that would then accept the SNF that had been stored temporarily at Skull Valley. But even without the existence of such a permanent storage facility, the lease obligates PFS to remove all of the SNF from the Skull Valley facility when the NRC license expires and the lease runs out. PFS intends to fulfill this obligation through its contracts with the utilities which will be storing their SNF at the Skull Valley facility. Those utilities will continue to own the SNF, even while it is stored at the Skull Valley facility, and they will be contractually obligated to remove their SNF from the Skull Valley site when PFS' NRC license expires, regardless of whether or not there is a DOE-operated permanent storage facility available.

B. Administrative proceedings

In order to begin operating this storage facility on the Skull Valley Band's reservation, Plaintiffs had to obtain the approval of several federal administrative agencies. PFS, therefore, applied for a license from the NRC to operate the storage facility, and for a right-of-way from the Bureau of Land Management ("BLM"), a bureau within the DOI, on which to build and operate its ITF. Further, because the Skull Valley Band is a federally recognized Indian tribe, see 61 Fed. Reg. 58211-02 (Nov. 13, 1996), and the United States holds its land in trust, Plaintiffs had to obtain the approval of their lease agreement from the Bureau of Indian Affairs ("BIA"), another bureau within the DOI.

In considering Plaintiffs' requested administrative actions, each of these agencies first had to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f ("NEPA"). Briefly stated, NEPA requires a federal agency, "before undertaking `major Federal actions significantly affecting the quality of the human environment,'" to evaluate and disclose the potential environmental impacts of that proposed action. Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1172 (10th Cir.2007) (quoting 42 U.S.C. § 4332(2)(C)). This requirement serves "twin aims": "First, NEPA forces government agencies to consider every significant aspect of the environmental impact of a proposed action. Second, NEPA mandates that government agencies inform the public of the potential environmental impacts of proposed actions and explain how their decisions address those impacts." Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir.2002) (quotations, citations omitted). NEPA imposes procedural, rather than substantive, requirements, however; it "does not mandate particular results." Lee v. U.S. Air Force, 354 F.3d 1229, 1237 (10th Cir.2004) (quotation omitted). Nor does it "require agencies to elevate environmental concerns over other appropriate considerations; it requires only that the agency take a `hard look' at the environmental consequences before taking a major action. In other words, it prohibits uninformed-rather than unwise-agency action." Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th Cir.2008) ("Krueger") (quotation, alteration omitted). Where, as here, "the action subject to NEPA review is triggered by a proposal or application from a private party, it is appropriate for the agency to give substantial weight to the goals and objectives of that private actor." Fuel Safe Washington v. FERC, 389 F.3d 1313, 1324 (10th Cir.2004) (quotation omitted).

In this case, the administrative agencies involved in the PFS/Skull Valley project chose to comply with NEPA by acting together. The NRC took the lead, with the BIA and BLM acting as cooperating agencies, in preparing a draft environmental impact statement ("DEIS"), seeking public comment on that document, and then issuing a final environmental impact statement ("FEIS"). See 40 C.F.R. §§ 1501.5, 1501.6. The FEIS these agencies prepared recommended going forward with the PFS/Skull Valley project, but preferring the use of the rail spur, rather than the ITF, to transport the SNF to the storage facility.

Following completion of the FEIS, the NRC issued PFS a license to operate the storage facility.7 Upper level DOI officials then assumed control of PFS' right-of-way application from the BLM and denied that application, after concluding that to grant the application would be against the public interest because there still remained too many unanswered questions about the project. Upper level DOI officials also took over Plaintiffs' lease approval request from the BIA and disapproved the lease for a number of reasons, including the need to protect the reservation for future generations of the Skull Valley Band.8 Plaintiffs now invoke the APA to obtain judicial review of these two decisions.9 See 5 U.S.C. § 702.

II. STANDARD OF REVIEW

Under the APA, "[t]he reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." 5 U.S.C. § 706(2)(A); see also TMJ Implants, Inc. v. U.S. Dep't of Health & Human Servs., 584 F.3d 1290, 1299 (10th Cir.2009). A court will also "set aside an agency's action if the agency has failed to follow required procedures." Krueger, 513 F.3d at 1176.

A court's review under the APA is "highly deferential," id. (quotation omitted); and the reviewing court may not substitute its judgment for that of the agency, see United Keetoowah Band of Cherokee Indians v. U.S. Dep't of Housing & Urban Dev., 567 F.3d 1235, 1239 (10th Cir.2009). Nevertheless, the court is still "required `to engage in a substantial inquiry' and to conduct a `thorough, probing, in-depth review.'" Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). While administrative agencies' decisions are afforded a presumption of validity,10 a decision will nonetheless be

Morris v. U.S. NRC, 598 F.3d 677, 690-91 (10th Cir.2010) (quotation omitted).

"Because the arbitrary and capricious standard [of review] focuses on the rationality of an agency's decision making process rather than the rationality of the actual decision, it is well established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir.2006) (quotation, alteration omitted).

Plaintiffs bear the burden of establishing that the agency's action is invalid.11 See Sorenson Commc'ns, Inc. v. FCC, 567 F.3d 1215, 1221 (10th Cir.2009).

III. DISCUSSION

A. DOI's denial of PFS' right-of-way application

PFS applied with the BLM for a right-of-way to build and operate its ITF on federal land. The Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-87 ("FLPMA"), authorizes the Secretary of the Interior to grant rights-of-way over public land for, among other purposes, transportation facilities.12 See id. § 1761(a)(6), (7). The Secretary manages public land through the BLM. See id. § 1731(b).

In its Record of Decision, issued by then Acting Assistant Secretary of the Interior for Land and Minerals Management Chad Calvert ("Calvert ROD"), the DOI denied PFS' application after concluding that the requested right-of-way was contrary to the public interest, see 43 C.F.R. § 2804.26(a)(2).13 More specifically, the DOI concluded that the right-of-way was against the public interest because "[t]oo many questions remain unanswered to grant the right-of-way at this time. . . . We cannot agree . . . that all appropriate land management questions have been answered at this time." (Calvert ROD at 10.) In support of that conclusion, the DOI determined that the FEIS both failed to consider a number of relevant questions adequately and also could not have addressed several pertinent new developments occurring after the FEIS was issued. However, because the DOI was relying upon the information in the FEIS to inform its decision on PFS' right-of-way application, and because it was the DOI's obligation under NEPA to prepare an adequate FEIS, see Krueger, 513 F.3d at 1177-78, the DOI's decision to deny PFS' right-of-way application because of its own failure to prepare an adequate FEIS was arbitrary and capricious.

In denying PFS' application, the DOI specifically determined that, while the FEIS fully considered how the SNF would be transported to the storage facility, the FEIS had not fully considered the impact that the removal of SNF from the Skull Valley storage facility, and the use of Skull Valley Road to remove the SNF, would have on the environment. The DOI also suggested that the FEIS was inadequate because it failed to address sufficiently the possibility of a terrorist attack.14

The DOI also determined that it had not fully considered new circumstances occurring after the cooperating agencies issued the FEIS in 2001. Those new circumstances include the Skull Valley Band's current operation of the "Tekoi Balefill, a disposal site for bundled waste," which has increased truck traffic on Skull Valley Road,15 and Congress' designation of the nearby Cedar Mountain Wilderness area, which requires further study both to determine whether the ITF will affect that area and, because the wilderness area eliminated the FEIS' preferred alternative—shipping the SNF to the storage facility via the new rail spur—to give a closer look at the ITF transportation alternative than the FEIS originally gave it.16

Based on these determinations— that the FEIS failed to consider adequately the removal of the SNF from the PFS storage facility and the possibility of terrorist attacks, and because the FEIS could not have considered the now-operating Tekoi balefill and the newly-designated Cedar Mountain Wilderness Area—the DOI denied PFS' right-of-way application. The Court does not question that the DOI needs to consider fully these matters before ruling on PFS' right-of-way application. But here, the DOI denied that application because its own FEIS was not adequate. That was arbitrary and capricious. See Krueger, 513 F.3d at 1177-78 (quotation omitted) (noting that NEPA places the burden of conducting an adequate study of the environmental impacts of a proposed action on the agency and "prohibits uninformed . . . agency action").

This is particularly true where, as here, the DOI, acting through the BLM, has readily available mechanisms which it could have invoked to obtain the information it found lacking in the FEIS. CEQ regulations require an agency—here the DOI—to prepare a supplemental environmental impact statement ("SEIS") when "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts"; CEQ regulations further provide that the agency—here the DOI—"[m]ay also prepare supplements when the agency determines that the purposes of [NEPA] will be furthered by doing so."17 40 C.F.R. § 1502.9(c)(1)(ii), (2). See Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1189 (10th Cir.2006) (noting agency prepared SEIS after deeming EIS incomplete); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (noting NEPA ensures agency will not act on incomplete information).

Beyond the NEPA process, however, the DOI, through the BLM, "may require [a right-of-way applicant] to submit additional information at any time while processing the application," and can "[t]ake any other action necessary to fully evaluate and decide whether to approve or deny [the] application." 43 C.F.R. § 2804.25(b), (d)(6); see also 43 U.S.C. § 1761(b); 43 C.F.R. § 2884.11(c)(8), (11). If the applicant fails to provide information requested by the BLM, then the BLM or the DOI can deny the application on that basis. See 43 C.F.R. § 2804.26(a)(6). But there is no indication here that either the BLM or the DOI ever requested that PFS provide the additional information the DOI deemed necessary in its Calvert ROD.

Thus, the DOI had an obligation to prepare an adequate FEIS and had available to it a number of mechanisms to obtain the information it determined it needed in order to consider thoroughly PFS' right-of-way application. Moreover, the information the DOI found the FEIS lacked generally appears to be readily obtainable. Cf. 40 C.F.R. 1502.22(a) (noting that, "[i]f the incomplete information relevant to reasonably foreseeable significant impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the" EIS). Because the DOI did not invoke any of these available mechanisms to obtain the additional information it deemed necessary for a thorough consideration of PFS' right-of-way application, but instead simply denied PFS' right-of-way application because there were too many questions left unanswered, the DOI's decision was arbitrary and capricious, and an abuse of discretion.18 See Colo. Wild, 435 F.3d at 1213 (requiring, under arbitrary-and-capricious review, "reasoned basis for agency action").

Finally, the DOI denied PFS' right-of-way after noting that PFS would not be eligible for public funding. However, because the PFS/Skull Valley project was not premised on any public funding, this point does not support DOI's decision to deny the right-of-way.

For these reasons, the DOI's decision to deny PFS' right-of-way application was arbitrary and capricious, and an abuse of discretion.19 On remand, the DOI can, of course, consider additional evidence concerning the matters the Calvert ROD deemed the FEIS to have given insufficient consideration, as well as the more recent matters that the FEIS could not have considered.

B. DOI's disapproval of Plaintiffs' lease

The Indian Long-Term Leasing Act ("ILTLA") required PFS and the Skull Valley Band to obtain the Secretary of the Interior's approval of their lease: "[a]ny restricted Indian lands, whether tribally, or individually owned, may be leased by the Indian owners, with the approval of the Secretary of the Interior, for . . . business purposes." 25 U.S.C. § 415(a). However,

Id. Applying § 415(a), the DOI, in a Record on Decision signed by Associate Deputy Secretary of the Interior James Cason ("Cason ROD"), disapproved Plaintiffs' lease. Plaintiffs contend that that decision was contrary to law, as well as arbitrary and capricious, and an abuse of discretion.

1. The Cason ROD was "not in accordance with law"

Plaintiffs first assert that the DOI decision reached in the Cason ROD was contrary to 25 C.F.R. § 162.107(a), which provides that, "[i]n reviewing a negotiated lease for approval, [the agency] will defer to the landowners' determination that the lease is in their best interest, to the maximum extent possible."20 Under the circumstances presented here, the Court agrees.

The DOI, in its Cason ROD, did not even mention 25 C.F.R. § 162.107(a) or its requirement that the DOI defer, "to the maximum extent possible," to the Skull Valley Band's determination that its lease with PFS was in the Band's best interest.21 Nor did the DOI employ § 162.107(a)'s language or otherwise discuss why it was rejecting the Band's determination that its lease with PFS was in its best interest. To the contrary, the DOI focused only on its role as trustee for the Band, concluding that it had "weigh[ed] the benefits to the Band against the significant uncertainties and other factors" and "conclude[d] that it is not consistent with the conduct expected of a prudent trustee to approve a proposed lease that promotes storing SNF on the reservation."22 (Cason ROD at 19.) Furthermore, all of the cases on which the DOI relied, in the Cason ROD, to set forth the standard the DOI was applying to consider Plaintiffs' lease predate 25 C.F.R. § 162.107.

Moreover, the manner in which the DOI considered Plaintiffs' lease further indicates that the DOI did not comply with 25 C.F.R. § 162.107(a)'s mandate to "defer to the landowners' determination that the lease is in their best interest, to the maximum extent possible." After the NRC, in February 2006, issued PFS a license to operate the storage facility on the Skull Valley reservation, the Skull Valley Band wrote to and met with DOI officials, urging the DOI to approve Plaintiffs' lease.23 In at least three letters sent to the DOI during this time frame, the Skull Valley Band indicated that, if the DOI still had concerns about approving the lease or if there were issues the DOI still needed to resolve regarding the lease, the Band would be happy to address these issues and concerns. The DOI, however, never responded to the Band's offers, nor did the DOI ever seek any additional information.24 Yet, similar to its decision in the Calvert ROD, the DOI in its Cason ROD disapproved Plaintiffs' lease in part because the DOI concluded that it did not have sufficient information about the 25 U.S.C. § 415(a) factors relevant to the approval or disapproval of Plaintiffs' lease. These circumstances, then, further indicate that the DOI, in disapproving Plaintiffs' lease, did not defer to the Band's determination of its best interests, to the maximum extent possible. In reaching this conclusion, the Court need not specify exactly what efforts the DOI should have undertaken to fulfill its obligation under 25 C.F.R. § 162.107(a) because here the DOI did not undertake any such effort. At a minimum, the DOI should have at least responded to the Band's offer to address any concerns the DOI had about the lease before disapproving that lease. For these reasons, the Court vacates the DOI's decision to disapprove Plaintiffs' lease and remands the lease to the DOI for its further consideration in light of 25 C.F.R. § 162.107(a).

In doing so, the Court notes that this regulation clearly does not mandate that the agency simply acquiesce to the Indian landowner's wishes, because the regulation qualifies the DOI's deference to the Band's own determination of its best interest with the phrase "to the maximum extent possible." Further, this regulation implements 25 U.S.C. § 415(a), which still requires the Secretary, in deciding whether or not to approve a lease of Indian land, to consider a number of factors beyond just the Indian landowner's wishes.

Nevertheless, deferring to the Indian landowners' determination as to what is in their best interest is consistent with 25 U.S.C. § 415(a), which is "intended to protect Native American interests." Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 30 (1st Cir.2007) ("Impson") (quotation, alteration omitted); see also Bullcreek v. U.S. Dep't of Interior, 426 F.Supp.2d 1221, 1230 (D.Utah 2006) (noting § 415(a) "protects the ability of owners of restricted Indian lands to lease those lands"); Utah v. U.S. Dep't of Interior, 45 F.Supp.2d 1279, 1283 (D.Utah 1999) (noting that "§ 415(a) is primarily concerned with protecting Native American interests by insuring that their land transactions with third parties are advantageous"). And courts have

Brown v. United States, 42 Fed.Cl. 538, 553 (Fed.Cl.1998) (addressing United States' role in ensuring that lessee complies with terms of approved lease; further noting that the Act provides the government with a "limited . . . caretaker role" of approving the lease, after "ensur[ing] that the lease, being of long duration, is not harmful to the Indian[s'] long-term interests"), aff'd, 195 F.3d 1334 (Fed.Cir.1999). Similarly, the DOI promulgated 25 C.F.R. § 162.107, as well as other regulations in 25 C.F.R. Pt. 162, in part to "provide for more pervasive deference to tribal law and tribal self-determination." 66 Fed. Reg. 7068-01, 7080; see also Siemon v. Rocky Mountain Reg'l Dir., 48 IBIA 249, 254 (Feb. 5, 2009) ("BIA's decision whether to approve a lease is based on the best interest of the Tribe," citing e.g., 25 C.F.R. § 162.107); Anderson v. Acting Sw. Reg'l Dir., 44 IBIA 218, 227 (Apr. 9, 2007) (noting that, "in exercising its trust obligation, BIA is entitled to give considerable deference to the Pueblo's judgment of what is in its own interest," citing 25 C.F.R. § 162.107(a)).25

2. The Cason ROD was arbitrary and capricious, and an abuse of discretion

Although the DOI's failure to comply with 25 C.F.R. § 162.107(a) requires this Court to remand Plaintiffs' lease to the agency for further consideration, Plaintiffs also challenge a number of the grounds on which the Cason ROD disapproved their lease as arbitrary and capricious, or an abuse of discretion. The Court will also address those arguments here because doing so may better inform the agency's consideration of the lease on remand.

a. It was arbitrary and capricious for the ROD to justify disapproving the lease because the record before the agency was deficient

25 U.S.C. § 415(a) directs, in part, that "[p]rior to the approval of any lease . . ., the Secretary of the Interior shall first satisfy himself that adequate consideration has been given to . . . the effect on the environment of the uses to which the leased lands will be subject." In addition, NEPA requires the DOI to consider the environmental impacts of the proposed lease, see 42 U.S.C. § 4332(2)(C); Davis v. Morton, 469 F.2d 593, 596-98 (10th Cir. 1972), and "NEPA's scope of review significantly exceeds that required by § 415(a)," Utah v. U.S. Dept. of the Interior, 210 F.3d 1193, 1196 (10th Cir.2000). In this case, the DOI expressly considered the environmental impacts of the proposed Skull Valley storage facility through the FEIS.

Like its decision in the Calvert ROD, the DOI, in the Cason ROD, disapproved Plaintiffs' lease, in part, after concluding that its own FEIS inadequately addressed a possible terrorist attack and failed to consider fully the process by which the SNF would be removed from the Skull Valley facility after the NRC license expires and the lease ends. And like the Calvert ROD, the DOI concluded in the Cason ROD that the DOI had not adequately considered how the Tekoi Balefill and the designation of the Cedar Mountain Wilderness Area would impact, and be impacted by, the PFS/Skull Valley storage facility. For the same reasons discussed above in vacating the Calvert ROD, see supra § III.A, the Court also concludes that the DOI's reliance in the Cason ROD on these grounds to disapprove Plaintiffs' lease was arbitrary and capricious, and an abuse of discretion.26 See Impson, 503 F.3d at 29 ("The federal government's duty under the Leasing Act [25 U.S.C. § 415(a)] . . . is to ensure that the parties to a lease of Indian land have given adequate consideration to the impact of the lease on, inter alia, neighboring lands and the environment.") This is all the more true here, where, as discussed above, the Government has a trust relationship with the Skull Valley Band and the DOI's own policies dictate that the agency should consult with the tribe.27 On remand, the agency can, of course, consider evidence presented in these matters.

b. It was arbitrary and capricious for the DOI to disapprove Plaintiffs' lease for reasons contradicted or unsupported by the record

An agency's decision will be arbitrary and capricious if the agency "offered an explanation for its decision that runs counter to the evidence before the agency." Morris, 598 F.3d at 690 (quotation omitted). Plaintiffs contend that the DOI disapproved Plaintiffs' lease for several reasons that were contradicted or unsupported by evidence in the administrative record. Again, the Court agrees.

(1) Police protection

In addition to considering the environmental impacts of the proposed lease, 25 U.S.C. § 415(a) requires the Secretary to "satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and use of neighboring lands . . . [and] the availability of police and fire protection and other services." The DOI noted, in the Cason ROD, that while the NRC, in its licensing proceeding, gave "exhaustive consideration to security at the proposed" storage facility, the DOI instead "is responsible for law enforcement on the Goshute Reservation and throughout all of Indian Country." (Cason ROD at 24.) The DOI further concluded that neither the BIA, the Skull Valley Band, nor the Tooele County Sheriff's office had the "resources to provide adequate law enforcement support for the proposed" PFS/Skull Valley project. (Id.) The DOI specifically noted that BIA "managers estimate that seven full-time law enforcement officers and two support staff would be required to adequately provide law enforcement services to the Reservation if the [PFS storage project] is built." (Id. at 25.) Further, the DOI indicated that the PFS/Skull Valley project would require "round-the-clock [law] enforcement services . . . due to additional traffic and other activities on the Reservation as a result of the proposed" storage facility. (Id.)

Defendants, however, fail to point out, and the Court has not found, anything in the administrative record to support the DOI's determination that there will be an increased need for police protection on the reservation (apart from the storage facility's own security), nor that there is a specific need for seven additional full-time BIA law enforcement officers or for round-the-clock law enforcement.28 To the contrary, the FEIS indicated instead that there would be no need to increase police protection on the reservation. Therefore, because there was nothing in the administrative record to support the DOI's determination that there is a need for additional police protection, the agency's decision to disapprove the lease on this basis was arbitrary and capricious.29 See Morris, 598 F.3d at 690. If evidence of such a need is presented to the DOI on remand, however, the agency can of course consider it.

(2) DOI's lack of specialized monitoring resources

After approving a lease of Indian land, the DOI must then enforce the lease and insure that the tenant abides by its terms. See 25 C.F.R. §§ 162.108, 162.615-23. In disapproving Plaintiffs' lease, the DOI appears to identify two different problems that would interfere with its ability to enforce the terms of that agreement on the Skull Valley Band's behalf.

(a) The need for "highly technical" expertise

The DOI first determined that the "highly technical nature of the proposed [storage project] effectively eliminates the Secretary's ability to inspect the tenant's activities and enforce the lease." (Cason ROD at 25.) In the same vein, the DOI further noted that "[t]he Secretary controls no independent specialized technical resources of the type required to assess compliance of so specialized a tenant as PFS. The BIA employs no nuclear scientists or technicians nor other specialty skills that would be required to adequately monitor the lease." (Id. at 26.)

The terms of the lease, however, are detailed, straightforward, and non-technical, requiring PFS to build the storage facility, provide security and insurance for it, make specific rental payments to the Band at particular times, and give Band members preference in PFS' hiring. None of these lease terms seem to require a nuclear scientist to enforce. The lease, of course, does concern a technical project, but it is the NRC that has licensed the storage facility and will oversee the more technical aspects of its operation and decommissioning.

Even assuming that the DOI would require some technical assistance in order to enforce the lease terms, however, the DOI does not further explain why the agency could not obtain such technical assistance. The administrative record indicates, for example, that the DOI was aided throughout the NEPA process by an independent contractor that provided the agency with technical assistance. Without further explanation, then, the DOI's disapproval of the lease because of the DOI's inability to enforce the "highly technical" nature of the lease was not supported by the administrative record and was, thus, arbitrary and capricious. See Morris, 598 F.3d at 690.

(b) Permanent structures

The DOI also determined that it could not enforce the terms of Plaintiffs' lease because any order the DOI issued to PFS to vacate the reservation

(Cason ROD at 26.)

To the extent the DOI was concerned that it would not be possible to remove the "extensive" infrastructure of the storage facility after an "extensive" investment in it, the lease as well as the NRC license specifically require PFS to dismantle the storage facility entirely and decommission the site at the end of the lease term and the expiration of the license, or earlier if the lease terminates sooner, even in light of and notwithstanding the significant investment initially involved in building the storage facility.30 And there is no evidence in the administrative record that PFS could not physically dismantle the site and decommission the facility.31 If presented to it, the DOI can consider any such evidence on remand.

(3) When the stored SNF might leave the reservation

Building on the previous contention, the DOI also disapproved Plaintiffs' lease because "[t]he Secretary cannot ascertain when SNF might leave trust land." (Cason ROD at 26.) The DOI's specific concern, and one expressed by a number of individuals and entities in Utah and elsewhere, is that the temporary storage facility in Skull Valley will become, de facto, a permanent storage site, particularly in light of the difficulty that the United States has had in establishing a permanent, DOE-operated storage facility.

There is, however, a plan in place to remove the stored SNF from the Skull Valley facility when the NRC license expires and the lease ends. That plan binds PFS, and calls for the removal of the stored SNF by its owners, those utilities that generated it, whether or not there is a DOE-operated permanent storage facility available at that time. Defendants fail to point to any evidence in the record indicating that this decommissioning plan is unworkable. Without such evidence, the DOI was arbitrary and capricious for disapproving the lease on these grounds. If presented with such evidence on remand, however, the agency can consider it.

IV. CONCLUSION

For the foregoing reasons, the Court VACATES both the DOI's Calvert and its Cason RODs and REMANDS PFS' right-of-way application and Plaintiffs' lease to the DOI for further consideration consistent with this decision. The Court rejects Plaintiffs' request, made for the first time in their supplemental brief, that the Court retain jurisdiction during the administrative proceedings following remand. Therefore, because this order resolves all matters before the Court and because the Court does not intend to retain jurisdiction after remand, the Court will direct the clerk of the court to enter final judgment. See Fed.R.Civ.P. 58. The Court is cognizant of Plaintiffs' request for attorneys' fees and will consider that request if reasserted in an appropriate post-judgment motion, see 28 U.S.C. § 2412(d)(1)(B).