608 F.3d 592 (9th Cir. 2010), 07-16336, Te-Moak Tribe of Western Shoshone of Nevada v. United States Dept. of Interior

Docket Nº:07-16336.
Citation:608 F.3d 592
Opinion Judge:PAEZ, Circuit Judge:
Party Name: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 Managem
Attorney:Roger Flynn, Jeffery C. Parsons, Western Mining Action Project, Lyons, CO, for petitioners Te-Moak Tribe of Western Shoshone of Nevada, Western Shoshone Defense Project, and Great BasinMine Watch. Ronald J. Tenpas, Assistant Attorney General, Mark Haag, Attorney, Environment & Natural Resources D...
Judge Panel:Before SIDNEY R. THOMAS and RICHARD A. PAEZ, Circuit Judges, and DAVID A. EZRA,[*] District Judge.
Case Date:June 18, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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608 F.3d 592 (9th Cir. 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.

No. 07-16336.

United States Court of Appeals, Ninth Circuit.

June 18, 2010

Argued and Submitted Jan. 15, 2009.

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Roger Flynn, Jeffery C. Parsons, Western Mining Action Project, Lyons, CO, for petitioners Te-Moak Tribe of Western Shoshone of Nevada, Western Shoshone Defense Project, and Great BasinMine Watch.

Ronald J. Tenpas, Assistant Attorney General, Mark Haag, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, DC, John Steiger, of Counsel, Office of the Regional Solicitor, United States Department of the Interior, Salt Lake City, UT, for respondents 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, Elko Field Office; United States Bureau of Land Management.

Robert Tuchman, Thomas F. Cope, Linnea Brown, Holme Roberts & Owen LLP, Denver, CO, W. Chris Wicker, Woodburn and Wedge, Reno, NV, for respondent-intervenor Cortez Gold Mines.

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.

Before SIDNEY R. THOMAS and RICHARD A. PAEZ, Circuit Judges, and DAVID A. EZRA,[*] District Judge.

OPINION

PAEZ, Circuit Judge:

Te-Moak Tribe of Western Shoshone of Nevada, a federally-recognized Indian tribe (" the Tribe" ), the Western Shoshone Defense Project (" WSDP" ), 1 and Great Basin Mine Watch (" GBMW" ) 2 (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" ). 3 Plaintiffs

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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.4 The BLM approved the original plan of operations for the HC/CUEP in 2001.5 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

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project" ).6

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.7

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.8 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,

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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...

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