Concerned Citizens & Retired Miners Coal. v. U.S. Forest Serv.

• Decision Date: 06 September 2017
• Docket Number: No. CV–16–03115–PHX–DGC,CV–16–03115–PHX–DGC
• Citation: 279 F.Supp.3d 898
• Parties: CONCERNED CITIZENS AND RETIRED MINERS COALITION, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

279 F.Supp.3d 898

CONCERNED CITIZENS AND RETIRED MINERS COALITION, et al., Plaintiffs,

v.UNITED STATES FOREST SERVICE, et al., Defendants.

No. CV–16–03115–PHX–DGC

United States District Court, D. Arizona.

Signed September 6, 2017

Jeffrey C. Parsons, Roger Flynn, Western Mining Action Project, Lyons, CO, for Plaintiffs.

Shaun M. Pettigrew, US Department of Justice, Washington, DC, Stuart C. Gillespie, US Dept of Justice, Denver, CO, for Defendants.

ORDER

David G. Campbell, United States District JudgePlaintiffs, a group of public interest organizations and the San Carlos Apache Tribe, brought suit against the United States Forest Service and some of its supervisors and officers. The Court allowed Resolution Copper Mining, LLC ("Resolution") to intervene as a Defendant. Plaintiffs challenge the Forest Service's approval of a plan to gather environmental data related to the possible development of a large copper

mine near Superior, Arizona. Plaintiffs filed motions for summary judgment, and Defendants filed cross-motions. For the reasons that follow, the Court will deny Plaintiffs' motions for summary judgment and grant Defendants' motions.

I. Background.

Resolution proposes to develop a large-scale underground copper

mine near the Town of Superior, Arizona ("Main Mine"). The Main Mine would be constructed on land that Congress has directed the Forest Service to trade to Resolution in exchange for other land. See 16 U.S.C. § 539p. Resolution has submitted a General Mining General Plan of Operations ("Main Mine Proposal"). The Forest Service is in the process of developing an environmental impact statement ("EIS") for the Main Mine Proposal. That proposal and the EIS are not at issue in this case.

Resolution proposes to construct a mine tailings storage facility ("TSF") in the Tonto National Forest in Pinal County, Arizona, also near the Town of Superior. A.R. 15192–93, 15196. To collect environmental data needed for the EIS on the Main Mine Proposal, and to be used in deciding whether to place the TSF at the proposed location and in designing and operating the TSF if it is approved, Resolution proposes to conduct a baseline assessment of groundwater and subsurface conditions in the proposed TSF location. The plan for this data gathering is contained in a Plan of Operations for Baseline Hydrological and Geotechnical Data Gathering Activities ("Baseline Project"). A.R. 15192.

The Baseline Project is the subject of this litigation. The Forest Service approved the project after conducting an environmental assessment ("EA") and issuing a Finding of No Significant Impact ("FONSI"). Plaintiffs challenge the EA as insufficient under several federal statutes.

It is important to note that approval of the Baseline Project does not constitute approval of the Main Mine or the TSF. Those projects will be approved, if at all, only after completion of the EIS. The Baseline Project is limited in scope and duration. It includes (1) installing 16 groundwater monitoring wells, affecting approximately 4.21 acres; (2) installing 41 geotechnical drill holes and piezometers, affecting about 0.27 acres; (3) constructing 32 geotechnical test trenches, affecting approximately 1.28 acres; (4) improving about 12 miles of existing Forest Service roads; (5) creating two storage yards for materials, affecting about 2.19 acres; (6) improving and maintaining temporary access roads on previously disturbed areas, affecting approximately 3.94 acres; and (7) creating short-term temporary access roads to bring a tracked drill rig and a service truck to off-road locations, affecting 7.07 acres. A.R. 15193. The temporary access roads would be developed on already existing unauthorized roads. A.R. 15211. The short-term temporary access roads would be used for only 24 to 48 hours, and then returned to their native state. Id. The test trenches would also be filled and restored within 48 hours of initial excavation. A.R. 15218.

Once completed, the groundwater wells would be used to gather groundwater data, including water quality, transmissivity, and hydraulic conductivity. A.R. 15212. The geotechnical drill holes and piezometers would be used to study stratigraphy and density of the subsurface and to measure groundwater levels. A.R. 15217. The test trenches would be used to study stratigraphy and other soil characteristics, as well as hydraulic conductivity (through an infiltration test). A.R. 15218. "Construction and installation of the Baseline activities is expected to take approximately six months for the 16 hydrological drill sites, nine to ten months for the 41 geotechnical drill sites, and three to four months for the 32 test trenches. Construction and installation would occur concurrently[.]" A.R. 15208.

During the first year following construction, groundwater monitoring wells would be sampled monthly. This would require a person to travel to each well and collect a groundwater sample. During years three through ten, the wells would be sampled quarterly. At the end of the ten-year project, any remaining areas would be reclaimed. A.R. 15218.

The Baseline Project includes more than 40 specific measures designed to protect the environment and cultural resources. A.R. 15219–23. In addition, the EA developed 16 mitigation measures. A.R. 15225–26.

At the beginning of the EA process, the Forest Service distributed a scoping letter to more than 300 interested parties and agencies, published the scoping plan in local newspapers and online, and provided a 30-day period for scoping comments. A.R. 15201. More than 200 comments were received and evaluated. A.R. 15203. The Forest Service also initiated consultation with ten Native American tribes. A.R. 15202. These efforts included letters, invitations to engage in government-to-government consultations, and various meetings. Id.

The Forest Service issued a draft EA in March 2015, followed by a public comment period. A.R. 9696, 10036. The final EA and FONSI were published in January 2016. A.R. 15178, 15753. An additional 45-day objection period followed. A.R. 15354; 36 C.F.R. Part 218. The public, including Plaintiffs, provided many comments to the Forest Service throughout this process.

Plaintiffs have now filed this action to challenge the validity of the EA. Plaintiffs argue that the EA violates the National Environmental Policy Act ("NEPA"), the National Historic Preservation Act ("NHPA"), and the National Defense Authorization Act ("NDAA"), as well as regulations related to these statutes.

On June 29, 2017, the Forest Service filed a Notice of New Information (Doc. 50) that will be discussed below. The notice states that the construction phase of the Baseline Project is completed and that the project is now in the monitoring phase. Doc. 50–1 at 2. "All ground disturbing drilling and trenching activities for the Baseline project are completed as of February 2017." Id. "Disturbances associated with drilling and trenching activities for the Baseline project have been reclaimed[.]" Id. To complete the monitoring that constitutes the rest of the project, "[t]he well sites are visited by a two-person crew and data is downloaded from data loggers via laptop computers monthly from each of the wells for the initial 12 months, then on a quarterly basis throughout the remaining authorization period[.]"Id.

Apparently, because Plaintiffs never sought to preliminarily enjoin the project, improvements of the roads and construction of the monitoring wells, boreholes, and test trenches proceeded. The Court learned this information only after the balance of this order was drafted. No party has suggested that issues raised in the summary judgment briefing are moot, and the Court assumes that NEPA compliance is still required because the project remains ongoing, albeit at the greatly reduced monitoring level. The Court accordingly will address the issues raised by the parties and will do so, as the parties do in their briefs, as though the project was yet to be implemented.

II. Legal Standards.

A court may set aside a final agency action under the Administrative Procedure Act ("APA") only if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "This standard of review is ‘highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.’ " Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv. , 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting Indep. Acceptance Co. v. California , 204 F.3d 1247, 1251 (9th Cir. 2000) ). The APA does not allow a court to overturn an agency action simply because the court disagrees with the action. See River Runners for Wilderness v. Martin , 593 F.3d 1064, 1070 (9th Cir. 2010). Review under the APA generally is restricted to the administrative record. See 5 U.S.C. 706 ; Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv. , 273 F.3d 1229, 1236 (9th Cir. 2001).

NEPA " ‘is our basic national charter for protection of the environment.’ " Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008) (quoting 40 C.F.R. § 1500.1(a) ); see 42 U.S.C. § 4331. "NEPA is a procedural statute that does not ‘mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.’ " Sierra Club v. Bosworth, 510 F.3d 1016, 1018 (9th Cir. 2007) (citation omitted). NEPA requires federal agencies to perform environmental analysis before taking "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). It "seeks to make certain that agencies will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger [public] audience." N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., ...