Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt.

Decision Date15 March 2019
Docket NumberCase No. 3:17-cv-00253-TMB
Citation399 F.Supp.3d 888
Parties CHILKAT INDIAN VILLAGE OF KLUKWAN, Southeast Alaska Conservation Council, Lynn Canal Conservation, and Rivers Without Borders. Plaintiffs, v. BUREAU OF LAND MANAGEMENT, Brian Steed, Karen Mouritsen, and Dennis Teitzel, in their official capacities, Defendants, v. Alyu Mining Co., Inc., Haines Mining & Exploration, Inc., and Constantine North, LLC, Intervenor-Defendants
CourtU.S. District Court — District of Alaska

Eric P. Jorgensen, Erin Whalen, Earthjustice, Juneau, AK, for Plaintiffs.

Dean Dunsmore, U.S. Department of Justice, Anchorage, AK, for Defendants.

James Francis Clark, Law Offices of James F. Clark, Juneau, AK, for Intervenor-Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT (DKT. 43) AND CROSS MOTION FOR SUMMARY JUDGMENT (DKT. 58)

TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on Plaintiffs' Motion for Summary Judgment ("Motion").1 Plaintiffs Chilkat Indian Village of Klukwan, Lynn Canal Conservation, Rivers Without Borders, and Southeast Alaska Conservation Council brought this action against Defendants the United States Bureau of Land Management ("BLM"), and three BLM officials—Dennis Teitzel, Brian Steed, and Karen Mouritsen—alleging a violation of the National Environmental Policy Act, 42 U.S.C. §§ 4331 et seq. , ("NEPA") in connection with the approval of two mining exploration projects. The Motion is opposed by Defendants, whose opposition is treated as a cross-motion for summary judgment under the local rules,2 and by Intervenor-Defendants Alyu Mining Co., Inc., Constantine North, LLC, and Haines Mining & Exploration, Inc. (collectively, "Intervenors").3 The Motion has been fully briefed.4

For the following reasons, Plaintiffs' Motion for Summary Judgment is DENIED and Defendants' Cross Motion for Summary Judgment is GRANTED .

II. BACKGROUND

Plaintiffs challenge two BLM determinations authorizing mining exploration activities on public lands near Klukwan, Alaska.5 Plaintiffs contend that BLM violated NEPA because the environmental review for both determinations did not consider the impacts of potential future mining development.6 Plaintiffs sued BLM and three BLM officials on December 4, 2017.7 Shortly thereafter, three mining companies with an interest in the suit—Alyu Mining Co., Inc. ("Alyu"), Haines Mining & Exploration, Inc. ("Haines"), and Constantine North, LLC ("Constantine")—intervened as defendants.8

A. The Palmer Project Area

The subject of this action are certain federally-managed public lands located in the Chilkat River watershed, 34 miles northeast of Haines, Alaska and near Klukwan, Alaska.9 Pursuant to federal law, these lands are currently open to mining,10 and are managed by the BLM Glenallen Field Office.11 The land in question (the "Palmer Project Area") is located at the confluence of the Chilkat, Klehani, and Tsirku Rivers,12 and is a contiguous block spanning approximately 6,765 acres and containing 340 federal unpatented lode mining claims "on the eastern margin of the Saint Elias mountain range."13

The Palmer Project Area is located within an area of unique environmental and cultural significance. This area serves as habitat for a wide range of aquatic, land, and avian species. The Chilkat and Klehani Rivers provide habitat for all five species of Pacific salmon, steelhead, and cutthroat trout, and numerous other fish species.14 The region is home to Alexander Archipelago wolves, brown and black bears, mountain goats, and other land mammals.15 And, the Palmer Project Area and surrounding land provides habitat for numerous avian species, and is located near the Alaska Chilkat Bald Eagle Preserve.16 The Palmer Project Area also lies in the traditional territory of the Chilkat Tlingit people, a Native Alaskan tribe, and residents of the Village continue to rely on subsistence harvests to maintain their cultural heritage.17

B. Statutory and Regulatory Framework
1. Federal Mining Law

Federal law governing mining operations on public lands, such as the Palmer Project Area, is controlled by two statutes. Mining operations on public lands administered by the BLM are regulated under the Mining Act of 1872, 30 U.S.C. §§ 22 – 54 ("Mining Act") and its implementing regulations, found at 43 C.F.R. subpart 3809.18 BLM's authority over public land is also subject to the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq. ("FLPMA"), which governs the administration of public lands by the federal government.

BLM regulations under these two statutes govern mining activities on BLM-managed lands. Under the Mining Act, "all valuable mineral deposits in lands belonging to the United States" are open to exploration by the public for mineral deposits, unless specifically withdrawn or exempted.19 Upon discovery of an economically valuable mineral deposit and compliance with statutory and regulatory requirements, an individual may "locate" the deposit, which "gives an individual the right of exclusive possession of the land for mining purposes."20 That individual may subsequently seek to "patent" the claim, "thereby purchasing from the Federal Government the land and minerals and obtaining title to them;" however, "an unpatented mining claim remains a fully recognized possessory interest."21

Under 43 C.F.R. §§ 3809.11, any operations that go beyond "casual use" of public lands cannot commence without BLM approval.22 Specifically, where a mining operation will disturb more than five acres of land, BLM must approve a mining plan of operations ("MPO") before operations can begin.23 An MPO is filed "with the local BLM field office with jurisdiction over the lands involved," and BLM regulations stipulate the minimum information sufficient for a complete MPO and "to determine that the plan of operations prevents unnecessary or undue degradation."24 Based on specific criteria detailed in BLM regulations, 43 C.F.R. § 3809, the BLM field office will approve, disapprove, or withhold approval of the MPO.25 As part of this review, BLM conducts an analysis of the environmental impacts of the MPO under NEPA.26 Approval is required before any operations can begin,27 and where new operations will occur, the operator is required to either submit a new MPO or apply for a modification.28

FLMPA did not "amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act," but was enacted to formalize the federal government's approach to managing publics land and natural resources.29 FLPMA mandates that, in managing public lands, the BLM "take any action necessary to prevent unnecessary or undue degradation of the lands."30 FLPMA also formalized the process by which Congress or the executive branch can formally withdraw federal public lands from mining operations.31 While Congress and the Secretary of the Interior (the "Secretary") retain sole authority to enact a withdrawal, BLM has the ability to enter a petition for a withdrawal, which, if accepted, initiates a review process to determine if withdrawal is appropriate.32

2. National Environmental Policy Act (NEPA)

NEPA " ‘provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.’ "33 NEPA "has twin aims."34 "First, it ‘places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’ "35 NEPA also "ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision[-]making process."36 "NEPA does not contain substantive environmental standards. Rather, it ‘establishes action-forcing procedures that require agencies to take a hard look at environmental consequences."37

Under 42 U.S.C. § 4332(c), federal agencies must complete an environmental impact statement ("EIS") for "major federal actions significantly affecting the quality of the human environment." The Council on Environmental Quality ("CEQ") promulgated NEPA's implementing regulations, which are binding on administrative agencies.38 "Federal regulations permit an agency that is planning a major federal action to conduct a less exhaustive Environmental Assessment ("EA") to determine whether the proposed action will ‘significantly affect’ the environment and thus whether an EIS is required."39 "If the EA reveals that the proposed action will significantly affect the environment, then the agency must prepare an EIS. If the EA reveals no significant effect, the agency may issue a Finding of No Significant Impact ("FONSI").40 Thus, "[b]y focusing agency and public attention on the environmental effects of proposed agency action, ‘NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.’ "41

NEPA review is required component of BLM's review of any MPO.42 For all agency actions, NEPA review—whether in the form of an EA or EIS—must be completed " ‘before any irreversible and irretrievable commitment of resources.’ "43 Judicial review of agency compliance with NEPA is under the Administrative Procedure Act ("APA").44

C. The Palmer Project Exploration Plan

Intervenor Constantine is the leaseholder of 340 unpatented mining claims in the Palmer Project Area, and has been engaged in exploration activities in this area since 1998.45 Prior to 2016, Constantine's activities in the Palmer Project Area did not require BLM approval.46 In 2015, Constantine obtained BLM authorization to conduct activities involving 4.70 acres of surface disturbance and approximately 1.2 miles of road; however, this activity did not trigger any review under NEPA due to its limited size and scope.47

On May 22, 2015, Constantine submitted an Exploration Plan of Operations (the "Exploration Plan" or "Exploration Plan MPO") to BLM seeking to expand exploration activities in the Palmer Project Area.48 Constantine's Exploration Plan was proposed under ...

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    • U.S. District Court — Northern District of California
    • July 15, 2020
    ...defines ‘reasonably foreseeable’ in this context to include only ‘proposed actions.’ " Chilkat Indian Vill. of Klukwan v. BLM , 399 F. Supp. 3d 888, 920 (D. Alaska 2019) (citation and internal quotation marks omitted); see also 40 C.F.R. § 1508.25(a)(2) ("Cumulative actions, which when view......
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    ...decisions, funding, or proposals for the development of a mine in the area. NAR 189; see also Chilkat Indian Vill. Of Klukwan v. Bureau of Land Mgmt., 399 F.Supp.3d 888, 922 (D. Alaska 2019) (finding no error in declining to consider a future mine in its cumulative effects analysis where th......
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