Ctr. for Biological Diversity v. United States Bureau of Land Mgmt.

• Decision Date: 24 January 2023
• Docket Number: 4:21-cv-00182-BLW
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, and WILDEARTH GUARDIANS, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, MARY D'AVERSA in her official capacity as District Manager for the Bureau of Land Management Idaho Falls District, and UNITED STATES DEPARTMENT OF INTERIOR, Defendants, and P4 PRODUCTION, LLC, Intervenor-Defendant.
• Court: U.S. District Court — District of Idaho

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CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, and WILDEARTH GUARDIANS, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, MARY D'AVERSA in her official capacity as District Manager for the Bureau of Land Management Idaho Falls District, and UNITED STATES DEPARTMENT OF INTERIOR, Defendants, and P4 PRODUCTION, LLC, Intervenor-Defendant.

No. 4:21-cv-00182-BLW

United States District Court, D. Idaho

January 24, 2023

MEMORANDUM DECISION AND ORDER

W B LYNN WINMILL U.S. DISTRICT COURT JUDGE

INTRODUCTION

This case involves a challenge to the United States Bureau of Land Management's approval of a new open-pit phosphate mine in southeast Idaho-the Caldwell Canyon Mine-which is to be operated by intervenor P4 Production. Plaintiffs allege that BLM's decision and analysis in approving the mine is arbitrary and capricious in violation of the National Environmental Protection Act, the Federal Land Policy Management Act, the Clean Water Act, and the Administrative Procedures Act. Before the Court are the parties' cross-motions for summary judgment. (Dkts. 58 61, 64.) Also before the Court are Plaintiffs' motion for leave to file a surreply and motion to strike (Dkts. 72, 73.) For the reasons set forth below, the Court grants in part and denies in part the cross motions for summary judgment, denies the motion to strike, and grants the motions to file a surreply.

BACKGROUND

Southeastern Idaho is the site of a federal phosphate program operated by the BLM and the U.S. Forest Service. The program includes 83 phosphate leases encompassing 43,000 acres. About 17,000 acres, or 23 square miles, are “disturbed” and there are 5 active mines and 15 inactive or closed mines. These mines are operated by several entities, including intervenor P4 Production, a subsidiary of Monsanto. Monsanto is, in turn, a wholly-owned subsidiary of Bayer AG.

Phosphate is used in many applications and products, including as an herbicide (Roundup), fertilizer, animal feed, metal finishing, flame retardants water-based paints and coatings, aviation fluids, potable water treatment, leavening agents, carbonated beverages, and toothpaste. The mines in the southeast Idaho phosphate program supply about 17 percent of the United States' and 3 percent of the world's phosphate. The mining program also generates approximately $10 million in royalties, rents, and bonus bids, 50% of which is distributed to Idaho.

On February 17, 2017, BLM received a proposal from P4 for a Mine and Reclamation Plan (MRP) in southeast Idaho. The proposal is for a new open-pit phosphate mining project-the Caldwell Canyon Mine-along Schmid Ridge, which is located about 13 miles northeast of the town of Soda Springs, Idaho. The open pit mining would be conducted on existing federal phosphate leases (IDI-02, IDI-014080, and IDI-13738) and an existing State of Idaho mineral lease (E07959). The federal leases grant P4 exclusive development rights to the phosphate deposits under the federal and private lands.

The Project would include two new open mine pits (the North Pit and the South Pit) from which P4 would extract phosphate ore. (AR 4021-22.) It would also require construction of haul and access roads, installation of a power line, water management features, monitoring wells, shop and office facilities, environmental protection measures, and reclamation. (See AR 4224-45, 16128-30). The Project would result in new disturbance of approximately 1,559 acres of previously undeveloped land. (AR 71250.) Surface ownership of this land is mixed-the BLM has surface ownership of 153 acres; the Forest Service has surface ownership of 7 acres; the State of Idaho has surface ownership of 230 acres; and the remaining 1,169 acres of the surface is in private ownership. (AR 71250, 71251.)

The Project would involve mining for about 40 years, with operations continuing year-round, 4 to 5 days per week in 2 10-hour shifts. (AR 71253, 402122.) The ore from the mine would be transported via truck and rail to the Soda Springs Plant, which is owned by parent company Bayer AG and operated by P4. The ore would be processed at the Soda Springs Plant to produce the herbicide glyphosate for use in Roundup products.

The Soda Springs Plant has been processing phosphate ore for many decades and currently processes phosphate ore from the Blackfoot Bridge Mine. The Blackfoot Bridge Mine was anticipated to be depleted and cease operations in 2022.

The Soda Springs Plant is an active federal Superfund Site. It was added to the National Priorities List due to concern that groundwater contaminated with selenium, cadmium, sulfates, and fluoride was flowing south from the property towards the town of Soda Springs. (AR 28495, 28427-34.) Subsequent investigation revealed that there is also potential exposure of community members and employees to metals (arsenic and beryllium) and to radionuclides through groundwater contamination. (AR 28427.) In a 2018 five-year review report of the Soda Springs Plant Superfund Site,^[1] the U.S. Environmental Protection Agency stated that the groundwater remedy for contamination at the site was not performing as intended:

Groundwater monitoring data reveal that after initially decreasing, some COC [contaminants of concern] concentrations have been increasing over the last several years in some of the monitoring locations, and at some locations appear relatively stable above the RGs [remedial goals]. In addition, the COC selenium has been detected at the southern property boundary in monitoring well TW-65 at concentrations that exceeded its RG. Monitoring wells upgradient from the southern property line are interpreted to be increasing in the short-term ....These trends indicate the selenium is not attenuating at the previously-estimated rate.

....

Attenuation rates have proved to be slower than originally predicted, for selenium in particular. These issues raise the uncertainty of the ability of the implemented remedy of MNA to achieve the goal of groundwater restoration within the 5- to 30-year timeframe. Groundwater cleanup performance standards have not been achieved as of 2017, and data suggest that those standards will not be achieved in the foreseeable future, particularly now that leaching from remaining COC sources has been positively identified.

(AR 28444.)

The COC source piles onsite at the Soda Springs Plant thus continue to contaminate groundwater, creating a plume that extends beyond the property boundary of the Plant. (AR 29432, 28440-41, 28444, 28446.) Not only will groundwater standards not be achieved in the foreseeable future, but EPA also found groundwater contamination from the Soda Springs Plant was contributing to surface water contamination in several streams and creeks that already exceed Idaho water quality standards. (Ibid.)

The Caldwell Canyon Mine Project, which will process ore at the Soda Springs Plant, was approved by BLM in a 2019 Record of Decision (ROD). After issuing the 2019 ROD, BLM issued rights of way (ROWs) associated with the Project, including for the East Caldwell Haul Road and for a water pipeline, fiber optic line, and powerline along the same corridor as the East Caldwell Haul Road. On September 19, 2019, BLM issued a Notice to Proceed, authorizing P4 to proceed with surface disturbance and initial mining activities for the Project.

Plaintiffs, Center for Biological Diversity, Western Watersheds Project, and WildEarth Guardians (collectively CBD) initiated this action in April 2021. They allege that the ROD and the final environmental impact statement (FEIS) upon which the ROD is based, violate the National Environmental Protection Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and the Clean Water Act (CWA). Currently before the Court are the parties' cross motions for summary judgment.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc). Because this is an administrative record review case, the Court may grant summary judgment to either party based upon a review of the administrative record. Id.

A federal agency's compliance with environmental laws is reviewed under the Administrative Procedure Act (APA). 5 U.S.C. § 706; see Ctr. for Biological Diversity v U.S. Dep't of Interior, 581 F.3d 1063, 1070 (9th Cir. 2009); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003). Under the APA, the reviewing court must set aside the agency's decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir.1996). An agency action is also arbitrary and capricious if the agency fails to articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. Id.

Thus the agency must set forth clearly in the administrative record the grounds on which it acted. See Atchison T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973). A court may not accept an agency's post hoc rationalizations for its action. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (...