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Te-Moak Tribe of Western Shoshone of Nevada v. United States Department of the Interior

June 18, 2010

TE-MOAK TRIBE OF WESTERN SHOSHONE OF NEVADA; WESTERN SHOSHONE DEFENSE PROJECT; GREAT BASIN MINE WATCH, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; ROBERT V. ABBEY STATE DIRECTOR; GAIL G. GIVENS, ASSISTANT FIELD MANAGER BATTLE MOUNTAIN FIELD OFFICE; CLINTON R. OKE, ASSISTANT FIELD MANAGER; UNITED STATES BUREAU OF LAND MANAGEMENT, DEFENDANTS-APPELLEES,
CORTEZ GOLD MINES, DEFENDANT-INTERVENOR-APPELLEE.



Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding. D.C. No. CV-05-00279-LRH.

The opinion of the court was delivered by: Paez, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted January 15, 2009-San Francisco, California

Before: Sidney R. Thomas and Richard A. Paez, Circuit Judges, and David A. Ezra,*fn1 District Judge.

OPINION

Te-Moak Tribe of Western Shoshone of Nevada, a federally-recognized Indian tribe ("the Tribe"), the Western Shoshone Defense Project ("WSDP"),*fn2 and Great Basin Mine Watch ("GBMW")*fn3 (collectively,"Plaintiffs") appeal the district court's denial of their motion for summary judgment, and the grant of summary judgment to the Department of the Interior ("DOI"), the Bureau of Land Management ("BLM"), several officers of the BLM, and intervenor Cortez Gold Mines, Inc. ("Cortez") (collectively, "Defendants").*fn4 Plaintiffs contend that the BLM's approval of Cortez's amendment to a plan of operations for an existing mineral exploration project in Nevada violated the National Environmental Policy Act ("NEPA"), the National Historic Preservation Act ("NHPA"), and the Federal Land Policy and Management Act ("FLPMA"). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court with respect to Plaintiffs' NHPA and FLPMA claims, and we reverse and remand for further proceedings with respect to one of their NEPA claims.

I. Factual and Procedural Background

This appeal involves Cortez's proposal to amend the plan of operations for an existing mineral exploration project, the Horse Canyon/Cortez Unified Exploration Project ("the HC/ CUEP"), located in Lander and Eureka Counties in northeastern Nevada.*fn5 The BLM approved the original plan of operations for the HC/CUEP in 2001.*fn6 Pursuant to the 2001 plan of operations, Cortez conducted exploration activities in a 30,548-acre area designated for the project ("project area").

The HC/CUEP, in its original and amended plans, is a phased exploration project. Phase I includes 150 drill sites, as close as 200 feet apart, to determine what minerals are in the target areas. Depending on what Cortez discovers, it may move into Phase II of the HC/CUEP, in which there are about 125 drill sites, with three or more drill rigs working in close proximity to one another. Finally, if Cortez chooses to continue exploring, it may move into Phase III, in which Cortez can use approximately 100 drill holes within the Phase II drill sites' footprints.

Under the original HC/CUEP plan of operations, Cortez was permitted to disturb a total of 50 acres of land within the entire project area over the course of all three phases of the project. In July 2003, Cortez proposed an amendment to the HC/CUEP plan of operations ("the Amendment") that would permit Cortez to disturb a total of 250 acres throughout the project area-five times the amount approved by the BLM for the original project. Under the Amendment, Cortez's exploration would proceed according to the same phased operations as outlined in the original HC/CUEP plan of operations, and Cortez could not disturb more than 50 acres at any given time. Cortez estimated that the HC/CUEP as amended would last five years.

Cortez's exploration activities under the HC/CUEP represent only a small part of a long history of exploration and mining activities in this area of Nevada. Active mining operations have existed since the 1860s, and the mining industry continues to explore the area for further mineral deposits. In addition to the HC/CUEP, Cortez currently operates a number of mines in the area, and Cortez has plans to develop in the near future two mineral deposits as the Pediment/Cortez Hills Mine Project ("the Pediment/Cortez Hills project").*fn7

After Cortez proposed the Amendment in July 2003, the BLM prepared an Environmental Assessment ("EA") pursuant to NEPA, assessing the environmental and cultural resources of the project area and the potential impacts on the environment. The EA "tiered" to, and thus incorporated, previous environmental impact statements and environmental assessments, including those for the original HC/CUEP and for the South Pipeline Project, another mining project located near the project area.*fn8

Although miners have been mining this area for generations, Native Americans have been there much longer. According to their oral history, Te-Moak and other Western Shoshone tribes have inhabited this area since time immemorial, and their religion and culture is inextricably linked to the landscape of the area. The project area is located on their ancestral lands.*fn9 Mount Tenabo, located within the project area, is considered a traditional locus of power and source of life for the Western Shoshone, and figures in creation stories and world renewal. The top of Mount Tenabo is used by the Western Shoshone for prayer and meditation and although mining activities have impeded this practice, the association of the top of the mountain to Western Shoshone beliefs, customs, and practices remains. The project area also contains many pinyon pine trees, a source of pine nuts that were once a key component of the Western Shoshone diet and remain a focal point of Western Shoshone culture and ceremony. Although mining has impeded the collection of pine nuts, remnant stands of pinyon pine continue to be used as traditional family gathering areas by contemporary Western Shoshone. Finally, because of the Tribe's burial traditions, the ancestors of the Western Shoshone are likely buried throughout the project area.

As a result of the Western Shoshone's undisputed connection to the land, the BLM has consulted with the Tribe, as required by NEPA and the NHPA, about sites of cultural and religious significance in areas slated for exploration and mining, including areas covered by the HC/CUEP, its predecessor project (the Horse Canyon Exploration Project), and the Pediment Project. This consultation led the BLM to designate two sites within the project area as "properties of cultural and religious importance" or "PCRIs" that are eligible for inclusion on the National Register of Historic Places: (1) Horse Canyon and (2) the top of Mount Tenabo and the "White Cliffs" of Mount Tenabo.

The BLM sent a letter to the Tribe about the Amendment one year after the BLM received Cortez's proposal in July 2003. The BLM noted that there was already extensive documentation of traditional, cultural, and spiritual use sites within or near the project area, but asked the Tribe for help in identifying any additional concerns and in developing any alternatives or methods that might eliminate or reduce potential adverse impacts. The Tribe did not respond to this letter.

About one month after soliciting the Tribe's input, the BLM submitted the draft EA for public comment on September 1, 2004, and sent the Tribe a copy to review. Although the BLM attempted to contact the Tribe by telephone in the middle of September to ascertain whether the Tribe would be commenting on the EA, the Tribe did not respond to those calls. WSDP and GBMW, however, did contact the BLM in early October regarding the proposed action and requested information on the BLM's consultation with the Western Shoshone and the location of drill holes, access roads, and other details of the project. The BLM responded on October 20, 2004, but did not provide the organizations with the requested project details.

The BLM could not provide the organizations with the precise locations of the project's exploration activities because they were not specified in the proposed Amendment's plan of operations. Instead, the BLM conditionally approved the Amendment, requiring Cortez to provide detailed maps prior to surface-disturbing activities and to follow specific avoidance measures to protect cultural resources. The BLM issued a Decision Record ("DR") and Finding of No Significant Impact ("FONSI") (together a "DR/FONSI") on October 22, 2004.

Plaintiffs petitioned the State Director of the BLM for review of the BLM's DR/FONSI on November 24, 2004. After granting Plaintiffs' request for review, the State Director met with the Te-Moak Tribal Chairman, Te-Moak's counsel, and other representatives from the Tribe, WSDP, and GBMW, and also considered arguments from Cortez. After completing his review, the State Director affirmed a modified version of the DR/FONSI that imposed additional mitigation measures. One such modification was an exclusion zone protocol to protect PCRIs eligible for inclusion on the National Register of Historic Places.

Dissatisfied with the State Director's modified DR/FONSI, Plaintiffs sought judicial review of the BLM's action in May 2005 by filing suit against the DOI, the BLM, and several BLM officers under the Administrative Procedure Act (APA). See 5 U.S.C. § 551 et seq. The district court subsequently granted Cortez's motion to intervene. Ultimately, the parties filed cross-motions for summary judgment. Concluding that the BLM had complied with NEPA, the NHPA, and the FLPMA, the district court granted Defendants' motion for summary judgment and denied Plaintiffs' motion for summary judgment. Plaintiffs timely appealed.

II. Discussion

Plaintiffs argue that the BLM's approval of the Amendment violated NEPA, the NHPA, and the FLPMA. We review de novo a district court's grant and denial of summary judgment.

Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). Pursuant to the APA, our task is to determine whether the agency's final action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ."

5 U.S.C. § 706(2)(A); see also Or. Natural Desert Ass'n v. Bureau of Land Mgmt., 531 F.3d 1114, 1140 (9th Cir. 2008). Here, we review the modified DR/FONSI issued by the BLM State Director, which is the final agency action. See 43 C.F.R. § 3809.809(b).

The arbitrary and capricious standard "requires us to ensure that an agency has taken the requisite hard look at the environmental consequences of its proposed action, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors." Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992) (internal quotation marks and citations omitted).

A. National Environmental Policy Act

[1] We first consider Plaintiffs' argument that the BLM's approval of the Amendment violated NEPA. NEPA imposes a procedural requirement "(1) to ensure the agency will have detailed information on significant environmental impacts when it makes its decisions; and (2) to guarantee that this information will be available to a larger audience." Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996). The NEPA procedures used by agencies "must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R. § 1500.1(b). "The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." 40 C.F.R. § 1500.1(c). Pursuant to these goals, NEPA requires federal agencies to prepare an environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332(2)(C). An agency may first prepare an EA, however, to determine whether it must prepare an EIS or may issue a FONSI. 40 C.F.R. § 1508.9(a)(1). If the agency issues a FONSI, then it may proceed with the proposed action. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004).

Here, the BLM prepared an EA, concluded on the basis of the EA's findings that the Amendment would not significantly affect the environment, and issued a DR/FONSI. As noted above, after Plaintiffs objected, the BLM State Director affirmed the DR/FONSI with modifications that imposed an exclusion zone protocol, in addition to the avoidance measures imposed in the original DR/FONSI, to protect PCRIs eligible for listing on the National Register. Plaintiffs challenge the BLM's modified DR/FONSI on the grounds that (1) the BLM failed to take a "hard look" at the Amendment's cultural and environmental impacts because it approved all three phases of the Amendment without obtaining sufficient information about each particular phase of exploration ...


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