National Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980),

National Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980),

National Indian Youth Council v. Andrus, a case addressing a coal mine project on Indian lands, is instructive of certain aspects of the section 106 process. The coal lease at issue, negotiated between the Navajo Tribe of Indians and a venture including El Paso Natural Gas Company and Consolidation Coal Company ("Con Paso"), was executed in 1976. As required by statutes governing the leasing of Indian lands, the Secretary of the Interior approved the lease on August 31, 1977.

Notwithstanding that governing regulations required the submittal and approval of a mining plan before any on-the-ground activities could take place under the lease, the Youth Council challenged the Secretary's approval of the lease and argued that the NHPA required a complete inventory and analysis of all historic properties within the 40,286 acre leasehold prior to secretarial approval.

The federal defendants and Con Paso argued that completion of NHPA section 106 compliance was not required until the mining plan received final approval. Until the mine plan was approved, Con Paso could not perform any ground-disturbing activity. Defendants also argued that compliance "may be accomplished in phases as long as compliance for each particular phase is completed prior to any land-disturbing activity in that area. In upholding the defendants' position, the district court stated that to require a complete inventory and analysis of all historic properties in the leased area, without any assurance a lease would be granted and with other procedural impediments still to be removed before any on-the-ground activities would begin, "would be unreasonable and wasteful. While concluding that "a mining project entered into pursuant to a federally-approved lease" is an "undertaking,"( the court held the mining plan approval to be the "`license' which required prior compliance with section 106 . . . ." The court also held that section 106 clearance procedures could be employed on a phased basis as mining activity progressed through the leased area. The approach approved by the district court was affirmed by the Tenth Circuit.

In the oil and gas development context, the Interior Board of Land Appeals (IBLA) considered a challenge to the NHPA section 106 process relating to the development of coalbed methane wells in southwestern Colorado, San Juan Citizens Alliance, et al. The Alliance contended that BLM failed to assess properly ...