Northern Alaska Environmental Center v. Lujan

• Decision Date: 14 April 1992
• Docket Number: No. 91-35296,91-35296
• Citation: 961 F.2d 886
• Parties: 22 Envtl. L. Rep. 21,287 NORTHERN ALASKA ENVIRONMENTAL CENTER; Sierra Club, Inc.; Denali Citizens Council, Plaintiffs-Appellants, v. Manuel LUJAN, Jr., et al., Defendants-Appellees, and Alaska Miners Association, Inc., Defendant-Intervenor-Appellee, and Joseph E. Vogler; Resource Development Council for Alaska, Inc., Defendants-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 886

961 F.2d 886

22 Envtl. L. Rep. 21,287

NORTHERN ALASKA ENVIRONMENTAL CENTER; Sierra Club, Inc. Denali Citizens Council, Plaintiffs-Appellants, v. Manuel LUJAN, Jr., et al., Defendants-Appellees and Alaska Miners Association, Inc., Defendant-Intervenor-Appellee and Joseph E. Vogler; Resource Development Council for Alaska Inc., Defendants-Intervenors.

No. 91-35296.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1992.

Decided April 14, 1992.

Robert B. Briggs, Marilyn J. Twitchell, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for plaintiffs-appellants.

Barry M. Hartman, Acting Asst. Atty. Gen., Dean K. Dunsmore, Dirk D. Snel, Martin W. Matzen, U.S. Dept. of Justice, Washington D.C., Dennis Hopewell, Deputy Regional Sol., Dept. of Interior, Anchorage, Alaska, for defendants-appellees.

Ronald A. Zumbrun, Robin L. Rivett, Pacific Legal Foundation, Sacramento, Cal., James S. Burling, Pacific Legal Foundation, Anchorage, Alaska, for defendants-intervenors-appellees.

Appeal from the United States District Court for the District of Alaska.

Before: WRIGHT and ALARCON, Circuit Judges, and DAVIES ^*, District Judge.

ALARCON, Circuit Judge:

Northern Alaska Environmental Center, Denali Citizens Council, and the Sierra Club, Alaska Chapter (collectively, the "Sierra Club") appeal from the order that dissolved the injunction issued by the district court in 1988. The federal defendants (collectively, the "Park Service") were ordered in 1988 to prepare environmental impact statements ("EISs") that studied the cumulative environmental effects of mining before approving any further mining in three national parks in Alaska. The Sierra Club alleges that the EISs prepared in response to the injunction do not comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"). We affirm because we conclude that the district court did not abuse its discretion in ruling that the EISs concerning the impact of any possible future mining activity in the parks are adequate under the rule of reason because a further study of the effect on the environment will occur prior to the granting of any mining permit.

I.

In 1985 the Sierra Club filed suit seeking an injunction to halt the issuance of mining permits without an environmental impact study. The Sierra Club alleged that the Park Service was issuing temporary permits that authorized mining operations and access to persons who had acquired patented and unpatented mining claims in Denali National Park and Preserve ("Denali"), Wrangell-St. Elias National Park and Preserve ("Wrangell"), and Yukon-Charley Rivers National Preserve ("Yukon") without complying with the requirements of NEPA and the National Park Service regulations implementing the Mining in the Parks Act, 16 U.S.C. §§ 1901-12.

On July 24, 1985, the district court issued a preliminary injunction barring the Park Service from approving mining operations until an EIS was prepared for each park that evaluated the cumulative effect of further mining operations. The court held that the Park Service had violated NEPA since 1979 by issuing temporary approvals of mining operations without conducting EISs or environmental assessments ("EAs"). It concluded that there were "substantial questions" regarding whether further mining operations in the national parks would have significant cumulative environmental effects.

Intervenor-defendants Alaska Miners Association and the Resource Development Council for Alaska appealed, challenging the validity of the preliminary injunction. Northern Alaska Environmental Center v. Hodel, 803 F.2d 466 (9th Cir.1986). We affirmed after the Park Service conceded that it had violated NEPA and represented that it would comply with the district court's injunction. Id. at 469.

The district court issued a permanent injunction in this matter on March 7, 1988. It enjoined the Park Service "from approving or permitting any further mining operations [in the three parks] until adequate environmental impact statements [were] prepared that study the cumulative environmental effects of mining in those parks." The district court also ordered that

[p]rior to completion of the respective environmental impact statements, the federal defendants or any party to this action may upon a showing that a mining operation in fact does not contribute to any cumulative environmental impact on a park move to modify this injunction to exclude that operation from the injunction. Alternatively, a mine operator not already a party to this action may move for limited intervention and similarly request relief from this injunction.

The court retained jurisdiction "to enforce, modify or dissolve the ... injunctions contained in th[e] final judgment."

In May 1990, the Park Service made public an EIS for each park. Each EIS presented four alternatives for evaluating and dealing with the cumulative environmental effects of any future mining operations. For purposes of analysis, each EIS developed a hypothetical "mining development scenario" predicting the most probable number and type of mines likely to operate over the next ten years for each park. The cumulative environmental impact of managing this level of mining under each alternative was then evaluated in the EISs.

Under Alternative A, the Park Service proposed that it would study each application on a case-by-case basis pursuant to the requirements of NEPA. In the Alternative A studies, an assessment of site-specific and cumulative impacts would be made qualitatively using specific field information pertinent to each proposed mining operation. The Park Service committed itself to comply with all relevant regulations, including 36 C.F.R. Subpart 9A, 9.10, and 9.11, 43 C.F.R. Part 36, NEPA, Section 810 of the Alaska National Interest Lands Conservation Act of 1980, and other applicable state and federal requirements in deciding whether to approve applications for mining operations. If the impact of a proposed operation could not be sufficiently mitigated, the plan would not be approved.

Alternative B was identical to Alternative A except that the Park Service proposed that, where possible, it would review cumulative impacts on a quantitative basis. The Park Service set resource protection goals ("RPGs") which estimated the percentage of pre-mining habitat that the Park Service would try to maintain or reestablish. RPGs for the specific types of habitats threatened in each park were set at 90% or 95% of the pre-existing habitat. If cumulative impacts from a proposed mining operation reduced a specified habitat below its RPG, the Park Service would count that as a factor militating against approval of the proposed plan. The Park Service concluded that the use of RPGs would reduce environmental harm from mining more than the purely qualitative analysis in Alternative A.

In Alternative C, the Park Service proposed that, where possible, it would consider the cumulative impact of mining operations both quantitatively and qualitatively for each specific permit for mining operations. Alternative C also provided that the Park Service would seek a change in the law whereby future patents of existing mining claims would convey the minerals only and would be subject to stricter requirements for the reclamation or restoration of the environment to its original state. In addition, the Park Service would initiate a mining claim acquisition program to acquire patented and unpatented mining claims whose development would be detrimental to park values. The Park Service assumed that the additional measures set forth in Alternative C would reduce the cumulative environmental impact from mining more than under Alternative B.

The Park Service recommended in Alternative D that it purchase all existing patented and unpatented mining claims as funds become available. Mining claims that threaten the environment in the three parks would receive priority for acquisition. The Park Service also recommended that pending the acquisition of all mining claims, it would process applications for permits to conduct mining operations according to the procedures specified under Alternative C.

On August 21, 1990, the Park Service issued a "record of decision" for each park. In each record of decision, the Park Service adopted Alternative D. The Park Service reasoned that Alternative D had "the least potential to cause damage to the biological and physical environment, and would provide the highest level of protection." The Park Service represented that when a specific mining plan is submitted for approval, it will consider site-specific mitigation measures and the cumulative impacts of the operation. The cumulative impact of each previously issued mining permit would be considered in evaluating a new application to determine whether approval would exceed the desired level of cumulative impact.

The Park Service filed a motion to dissolve the permanent injunction on September 10, 1990. It argued that each EIS adequately studied the cumulative environmental effects of any future mining operation in the three parks on a hypothetical basis. The Sierra Club opposed the motion. It contended that the EISs did not satisfy the requirements of NEPA. The Sierra Club alleged, in part, that: (1) the EISs failed adequately to analyze measures to mitigate the effects of mining; (2) the EISs failed to assess the impact of non-mining activities outside the areas targeted for study in the EISs; and (3) the EISs failed to assess the impact of simultaneous mining in multiple "study areas" on migratory mammals that traverse across two or more study areas.

The district court ruled that the EISs' study of the environmental impact of hypothetical future mining operations "[was] adequate [under NEPA] in addressing cumulative impacts of mining in the parks as required by the court's Order filed March 7, 1988." It granted the Park Service's motion. The court...