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Center for Biological Diversity v. United States Dep't of the Interior

September 14, 2009

CENTER FOR BIOLOGICAL DIVERSITY; WESTERN LAND EXCHANGE PROJECT; SIERRA CLUB, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; BUREAU OF LAND MANAGEMENT, DEFENDANTS-APPELLEES,
ASARCO LLC, DEFENDANT-INTERVENOR-APPELLEE.



Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-01-01758-ROS

The opinion of the court was delivered by: W. Fletcher, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted February 10, 2009 -- San Francisco, California

Before: Dorothy W. Nelson, William A. Fletcher and Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher; Dissent by Judge Tallman.

The Center for Biological Diversity, the Western Land Exchange Project, and the Sierra Club (collectively, "Appellants") bring suit against Asarco LLC ("Asarco"), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, "BLM"). Appellants contend that the BLM's approval of a land exchange violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70; the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-87; and the Mining Law of 1872, 30 U.S.C. §§ 21-54.

If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco's use of the land would not be subject to the requirements of the Mining Law of 1872.

If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872. Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations ("MPO") to the BLM. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed.

As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement ("FEIS") pursuant to NEPA. In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision ("ROD") approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences - and the implications for the public interest - would differ depending on whether the proposed land exchange occurs.

Because the BLM has conducted no comparative analysis, we hold that it has not "taken a 'hard look' at the environmental consequences of its proposed action" in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was "arbitrary and capricious" in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving the actions of the BLM.

I. Background

Asarco owns and operates the Ray Mine complex in Gila and Pinal Counties, Arizona. The complex includes a 265,000 ton-per-day open pit copper mine, a copper smelter with an acid plant, solution extraction/electrowinning plants, mills, concentrators, leaching systems, and related support facilities. Ore from the mine is transported eighteen miles to the Hayden Smelter for processing. In 1996, the complex produced 430 million pounds of copper anodes, over 70 million pounds of copper cathodes, 1.3 million ounces of silver in concentrate, and 623,000 tons of sulfuric acid. The Ray Mine is the second most productive copper mine in Arizona and the third most productive copper mine in the United States.

In 1994, Asarco proposed a land exchange with the BLM in order to consolidate its holdings and to support and expand its mining operations at the complex. As amended in 1997, the proposed land exchange would convey to Asarco in fee simple thirty-one parcels of public land totaling 10,976 acres (the "selected lands"). In return, Asarco would convey to the BLM eighteen parcels of private land totaling roughly 7,300 acres (the "offered lands"). FLPMA authorizes the Secretary of Interior to approve land exchanges. 43 U.S.C. § 1716.

The United States owns and the BLM administers as full estates 8,196 acres of the selected lands. The remaining 2,780 acres of the selected lands are owned and administered as "split estates." Asarco owns or is purchasing, in transactions not at issue in this appeal, the surface estate of these lands, while the United States owns and the BLM administers the mineral estate. Twenty-three of the thirty-one parcels of selected lands are located near the Ray Mine and the community of Ray, Arizona. Five of the parcels are located twelve to fifteen miles southeast of the Ray Mine, near the communities of Hayden and Winkleman, Arizona. The remaining three parcels are located about 50 miles west of the Ray Mine near the community of Casa Grande, Arizona.

The selected lands provide important wildlife and plant habitat, including high priority reintroduction habitat for desert bighorn sheep, 6,860 acres of endangered desert tortoise habitat, and potential habitat for threatened and endangered birds. Upland plant communities cover 99.2% of the selected lands and include riparian plant communities and three plant species designated for special status by the BLM. Some of the selected lands are immediately adjacent to the White Canyon Area of Critical Environmental Concern, and some are adjacent to or in close proximity to the White Canyon Wilderness. The selected lands include seventy-eight archaeological sites, of which forty are regarded as eligible for nomination to the National Register of Historic Places.

Asarco and the BLM are forthright in stating that they foresee the following five uses for the selected lands following the land exchange. These uses are described with specified acreage in the FEIS as follows:

(1) Existing mining: 272 acres (2%) already have had and would continue to have substantial surface disturbance due to Asarco's mining operations.

(2) Production operations and support areas: 3,614 acres (33%) would be used to expand open pits, construct haul roads, and deposit solution-extraction rock. This would result in substantial disturbance to between 25% and 100% of the land surface.

(3) Transition: 875 acres (8%) would be used as "raveling areas" around overburden and leach rock deposition areas, access roads, storm water diversion ditches, and administrative facilities. This would result in some disturbance to between 5% and 25% of the land surface.

(4) Intermittent use: 4,481 acres (41%) would not be subject to direct mining activity and would be used to consolidate Asarco's ownership and to buffer neighboring landowners from mining operations.

(5) Long-range prospect: 1,733 acres (16%) could be used for mine development and support in the future resulting in an unknown degree of surface disturbance.

The selected lands are now encumbered by 751 mining claims or mill site claims under the Mining Law of 1872, of which 747 are held by Asarco. These claims are unpatented, and the BLM has not determined if they are valid. Every parcel of the selected lands except for Parcel CH-5 (comprising 480 acres) is encumbered by at least one such claim.

The offered lands comprise five parcels or groups of parcels: the Knisely Ranch Parcels (160 acres), the Gila River Parcel (320 acres), the Tomlin Parcels (320 acres), the McCracken Mountain Parcels (6,384 acres), and the Sacramento Valley Parcel (120 acres). Following the land exchange, no mining claims would exist or be permitted on the Knisely Ranch Parcels. The BLM would petition to withdraw the Gila River Parcel and Tomlin Parcels from mineral entry, which, if successful, would mean that only persons who had established a valid mining claim before withdrawal would be permitted to mine on those parcels. Clouser v. Espy, 42 F.3d 1522, 1524-25 (9th Cir. 1994). The McCracken Mountain Parcels, which comprise 87% of the offered lands, and the Sacramento Valley Parcel would remain open to mineral entry. Of the 7,300 acres of offered lands, 1,126 acres exhibit moderate potential for locatable mineral resources, with the rest exhibiting low potential for locatable mineral resources.

The offered lands include riparian plant communities and important wildlife habitat, including habitat for some special status species, potential habitat for some threatened or endangered species, including peregrine falcons, and proposed critical habitat for the cactus ferruginous pygmy owl. The offered lands include segments of the Gila River Riparian Management Area, the Black Mountains (Burro) Herd Management Area, the Cerbat (Wild Horse) Herd Area, the Big Sandy (Burro) Herd Management Area, and the McCracken Desert Tortoise Habitat Area of Critical Environmental Concern.

Between 1995 and 1997, the BLM consulted with various federal, state, and local agencies, elected representatives, non-governmental organizations, tribal governments, and private individuals concerning the land exchange. The BLM published a Draft Environmental Impact Statement ("DEIS") in October 1998.

In January 1999, after having reviewed the DEIS, the federal Environmental Protection Agency ("EPA") sent the BLM a three-page single-spaced letter accompanied by thirteen pages of single-spaced comments. The EPA's letter stated, inter alia:

Over the past several decades, approximately one billion tons of material have been excavated at the Asarco Ray complex. The proposed action would enable Asarco to excavate and process approximately three billion more tons over the next 40 years. In several meetings, letters, and conference calls with BLM since scoping for this project began in 1994, EPA has recommended that the DEIS provide certain information that we believe would be useful and relevant in a NEPA analysis for a land exchange where the foreseeable future uses of mining are known. In our comment letter on the preliminary DEIS, we stated that the document did not appear to have evaluated all reasonable alternatives and strongly recommended that additional information regarding the alternatives be included in the DEIS. In that letter and several others to the DEIS, we also recommended that the potential impacts of the land exchange and the foreseeable future mining be discussed in much greater detail in the DEIS and specifically outlined the needed information.

Although BLM has not received an acceptable mine plan of operations (MPO) from Asarco, it appears that Asarco has fairly specific plans for the selected parcels. We believe that additional detailed information regarding geology, geochemistry, hydrology, and biological resources is relevant and necessary for this analysis to constitute full disclosure under NEPA. It is also evident that all reasonable alternatives have not been evaluated and that impacts of foreseeable activities on the selected lands have not been sufficiently addressed in the DEIS. We are extremely dismayed that the BLM has ignored most of our recommendations in finalizing the DEIS and are particularly troubled that the DEIS was published at a time when our headquarters office was still discussing the issues with BLM headquarters and the two agencies had not yet come to a resolution.

We have rated this DEIS as EO-2 - Environmental Objections-Insufficient Information. We have strong objections to the proposed project because we believe there is potential for significant environmental degradation that could be corrected by project modification or other feasible alternatives . . . . We continue to contend that a substantial amount of information should be added to the EIS for BLM to meet its public disclosure obligation.

(emphasis added).

Public hearings were held on the DEIS. The BLM received sixty-one comment letters or notifications of no comment from interested individuals and groups. After reviewing and responding to these comments, the BLM issued its Final Environmental Impact Statement ("FEIS") in June 1999. The FEIS differs from the DEIS in only minor respects.

The FEIS analyzed the environmental, cultural, and socioeconomic impacts of the proposed land exchange; the "Buckeye Alternative," under which the selected lands would decrease to 10,176 acres and the offered lands to 6,659 acres; the "Copper Butte Alternative," under which the selected lands would decrease to 9,161 acres and the offered lands to 5,601 acres; and the "No Action Alternative," under which no lands would be exchanged. The FEIS identified but elected not to study in depth seven other alternatives.

The FEIS stated that the "foreseeable uses of the selected lands are mining-related uses and are expected to occur under all alternatives." (emphasis added). As explained in the FEIS:

[A] land exchange is not required for mining-related activities to take place on the selected lands. Asarco currently holds the vast majority of the mining claims on the public lands selected for exchange, and through these mining claims, Asarco has the right to pursue development on the selected lands for mining or mining-related uses . . . .

That is, as stated in the FEIS "foreseeable uses of the selected lands are assumed to be the same for all alternatives." (emphasis added).

The BLM's stated assumption that mining was the foreseeable use for the selected lands and that the manner and intensity of mining would be "the same for all alternatives" - that is, whether or not there was a land exchange - played a critical role in the FEIS. The FEIS contains an analysis of the environmental consequences of mining for upland plant communities, riparian plant communities, state and BLM special status plants, wildlife habitats, wildlife (including state and BLM special status wildlife as well as wildlife deemed threatened and endangered under federal law), and other resources. However, the FEIS contained only a single analysis, because the BLM assumed that the environmental consequences of mining would be the same under every alternative. Because the BLM assumed that the environmental consequences would be the same under every alternative, the FEIS contains no comparative analysis of those alternatives.

In April 2000, the BLM issued a Record of Decision ("ROD") in which it did two things. First, the BLM amended two existing Resource Management Plans ("RMPs") to change the designation of the selected lands under FLPMA. It amended the 1988 "Phoenix RMP" to change the designation of 9,906 acres in the White Canyon Resource Conservation Area from "retention" to "disposal." And it amended the 1993 "Safford District RMP" to change the designation of 433 acres in the Long-Term Management Area from "retention" to "disposal." These changes in the Phoenix and Safford District RMPs were prerequisites to the conveyance of the selected lands from public ownership. As a consequence of these changes, the BLM would no longer be required to manage the selected lands as multiple-use lands under FLPMA.

Second, the BLM approved the proposed land exchange. Section 206 of FLPMA forbids land exchanges unless the "public interest will be well served." 43 U.S.C. § 1716(a). This section directs the Secretary of Interior to "give full consideration" to better land management and "needs for lands for the economy, . . . food, fiber, minerals, and fish and wild-life" when determining the public interest. Id. In part, the ROD justified the exchange by denying that any harm to the public would result from conveying the selected lands to private ownership. The ROD concluded that the public interest would not be harmed by the conveyance by assuming, as the FEIS had assumed, that mining would be conducted in the same manner whether or not the exchange occurred. The ROD stated that "the BLM considers the continuation of mining as the foreseeable use of most of the selected federal lands whether the exchange occurs or not."

The EPA, the federal Bureau of Indian Affairs, and the Sierra Club objected to the ROD. The BLM summarized their objection as follows: "A Mine Plan of Operation is necessary to complete analysis of the land exchange impacts. BLM's assumption is wrong that the foreseeable use reflects mining that would take place whether or not land exchange occurs." (emphasis added). The ROD did not answer the objection, but instead referred the reader to the FEIS. The ROD stated, "This issue has been addressed in the FEIS General Response section 7.4.5 and 7.4.6." In those sections of the FEIS, the BLM responded to the first sentence of the objection, stating that MPOs are not required for mining that is anticipated after the selected lands become privately owned. However, the BLM did not respond to the second sentence (italicized above), which objected that the BLM's "assumption" that the same mining would occur was "wrong."

In July 2001, Appellants filed an administrative appeal and a request to stay the land exchange with the Interior Board of Land Appeals ("IBLA"). When IBLA failed to act on the Appellants' request within forty-five days as mandated by 43 C.F.R. § 4.21(b)(4), Appellants filed suit in federal district court. IBLA then stayed the land exchange pending its disposition of the appeal, and the district court suspended its proceedings pending a decision from IBLA.

In August 2004, IBLA denied the Appellants' appeal. Ctr. for Biological Diversity, et al., 162 IBLA 268 (2004). One Administrative Judge wrote separately, concurring only in the result. For her, the difficult issue was whether the BLM had complied with NEPA. She wrote:

I am perturbed by BLM's assertion that foreseeable consequences of this exchange are not possible to predict or are speculative. It appears that the record contains considerable information indicating where within the selected lands mineral resources are located and where they are not. It is this information that forms the basis for the classification of foreseeable uses ("existing," "production," "transition," "intermittent use," and "long-range prospect") identified for the selected lands in the FEIS. Further, BLM changed its land use designations for the vast majority of the selected lands in the Phoenix and Safford Resource Management Plans from "resource conservation area" and "long term management area" to "suitable for disposal" in the context of implementing this exchange decision . . . . Combining these two points of information - the knowable classifications within the context of mining of the selected lands with the change in land designation - made foreseeable impacts more easily presentable in a manner not easily found in this EIS and less speculative than BLM suggests. Id. at 291 (Hemmer, Admin. J., concurring) (emphasis added) (internal citations omitted).

On June 6, 2007, the district court granted summary judgment, rejecting Appellants' challenge to the proposed land exchange. Appellants timely appealed to this court.

II. Standard of Review

This court reviews the district court's grant of summary judgment de novo. See, e.g., United States v. Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). The Administrative Procedure Act authorizes this court to set aside agency actions, findings, or conclusions that are "unsupported by substantial evidence" in the record. 5 U.S.C. § 706(2)(E). Under NEPA, "we must ensure that the agency has taken a 'hard look' at the environmental consequences of its proposed action . . . . [W]e must defer to an agency's decision that is 'fully informed and well-considered.' However, we need not forgive a 'clear error of judgment.' " Blue Mountains Biodiversity Project v. Black-wood, 161 F.3d 1208, 1211 (9th Cir. 1998) ...


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