Biological Diversity v. U.S. Dept. of Interior

• Decision Date: 14 September 2009
• Docket Number: No. 07-16423.,07-16423.
• Citation: 581 F.3d 1063
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 1063

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.

No. 07-16423.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 10, 2009.

Filed September 14, 2009.

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

Edward S. Geldermann, Mark R. Haag, U.S. Department of Justice, Washington, D.C., Cynthia M. Parsons, Office of the U.S. Attorney, Phoenix, AZ, Norman Daniel James, Fennemore Craig PC, Phoenix, AZ, for the appellees.

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.

Before: D.W. NELSON, W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

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 Mountains 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, nongovernmental 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...