Friends of the Inyo v. U.S. Forest Serv.
| Decision Date | 08 March 2023 |
| Docket Number | 2:21-cv-01955-KJM-KJN |
| Parties | Friends of the Inyo, et al., Plaintiffs, v. U.S. Forest Service, et al., Defendants, and KORE Mining, Limited, Intervenor-Defendant. |
| Court | U.S. District Court — Eastern District of California |
The United States Forest Service approved the proposed mining exploration project submitted by KORE Mining, Limited for a site on public land near Mammoth Lakes, California. The Forest Service determined the project will not cause any significant effects on the environment. Four advocacy organizations-Friends of the Inyo, Western Watersheds Project, Center for Biological Diversity and the Sierra Club-disagree with the Forest Service's assessment based on risks to a unique sage grouse population and to an endangered species of fish. They filed this action to challenge the Forest Service's decision under the Administrative Procedure Act (APA), and KORE intervened as a defendant.
The Forest Service, the plaintiffs and KORE all have moved for summary judgment. As explained in this order, the Forest Service's decision was not “arbitrary” or “capricious” under the APA, so the court grants the motions for summary judgment brought by the Forest Service and KORE and denies plaintiffs' motion.
In 2019, KORE began investigating the project at the center of this litigation. See AR 5338-45. On the land in question-a wide and gently sloping expanse of 1,848 shrubby acres- other entities had bored hundreds of holes in the 1980s and 1990s. See AR 22, 14625-32. Technical limitations prevented these previous bore holes from reaching more than a few hundred feet deep. See AR 22, 33; see also KORE Mot. at 4-5, ECF No. 37. Based on surveys and investigations it conducted in 2019, KORE believed a deeper exploration could be fruitful today. See AR 22 5344-45. In twelve locations, KORE proposed to clear vegetation, level a 50-foot-by-30-foot-surface, and drill downward at outwardly radiating angles to depths of more than 600 feet. See AR 1, 13, 35. This plan would allow it to explore a smaller but deeper cross-section of the same area others had explored in the past. See AR 35. KORE would then immediately refill and cap the bore holes with clay and cement grout. Id. It would not extract any resources; there would be no mining, at least not yet. AR 33, 35. To reach the twelve drill pads, KORE would construct about a third of a mile of temporary access roads. See AR 33. It would otherwise rely on the roads others had constructed many years before. See AR 22 24. This project would be completed within a year and would by KORE's estimate, disturb less than an acre of land. See AR 33, 35.
KORE submitted a notice required by Forest Service regulations in the summer of 2020. AR 5334. The Forest Service then requested a more detailed plan of operations, which KORE also prepared and submitted within about a month. See AR 5327, 5330, 5332. At first, the Forest Service believed KORE would likely need to prepare a detailed environmental assessment. See AR 5330. But in November and December 2020, several months after KORE submitted its plan, the Forest Service concluded preliminarily that the project was unlikely to have any significant effects on the environment: it would take less than a year, require less than a mile of new road, and use existing roads. AR 5321, 15232-38. Over the next few months, the Forest Service looked more carefully into whether that was so. A consultant prepared a “Biological Impact Analysis,” see AR 150-267, 5310-20; the Forest Service required surveys of plants and wildlife, see AR 268-314, 5303; and the Forest Service consulted with Tribal and state authorities and solicited public comments, see AR 5277, 5280-82.
The agency received more than a thousand comments during the three-month “public scoping” period. AR 693-94. Almost all commenters opposed mining in general, citing concerns about water resources, wildlife and cultural resources, among others. See AR 640-96, 694-95. The plaintiffs and the City of Mammoth Lakes and Mono County detailed their concerns along these lines in writing. AR 698-736, 4972-78, 15239-42. State and federal fish and wildlife agencies also responded. See AR 8058-63, 10091.
Many of those who submitted comments, including the government agencies, warned that the project would disturb a particular population of sage grouse belonging to a species famous for the extravagant displays male birds put on to attract a mate. See AR 8058-63, 10091. Picture a spike-tailed, puff-chested small turkey in a brown tuxedo, shaking and strutting in the brush. Specifically, sage grouse use the area where KORE would drill for both brooding and foraging. AR 15160. They nest on the ground and return to the same mating grounds, known as “leks,” every year; they depend on large, continuous expanses of sagebrush for their survival. AR 1111, 8059-60, 14060. Whatever reduces or fragments this habitat threatens sage grouse, from fences and roads to mining and grazing to wildfires and climate change. AR 14059.
The sage grouse population at issue here lives in only a few counties in eastern California and western Nevada. AR 8059, 10091, 14059. It is not listed as an endangered or threatened species under the federal Endangered Species Act, but the Forest Service has recognized it as a “species of conservation concern,” a designation that reflects a “concern about the species' capability to persist over the long-term” in the relevant area. AR 10091, 14028. California agencies have also added the sage grouse to lists of “sensitive” species and species of “concern.” See AR 14059. A recent federal study estimates the risk of “extirpation,” i.e., a local extinction, is 40 percent or greater within 20 years. AR 1162.
Many who opposed the project, again including the state and federal fish and wildlife agencies, also raised concerns about the project's potential effects on the local groundwater and an endangered species of fish, the Owens Tui Chub. See, e.g., AR 8061, 10090. KORE's drills would reach deep enough into the ground to connect with both a cold-water surface aquifer and a hot-water aquifer confined deeper and under pressure beneath the surface. See AR 5-6, 339, 8061. The confined aquifer could be under such pressure as to create an artesian well if punctured: hot water would flow to the surface without pumping. AR 8061. If this hot water were released from the confined aquifer, it could reduce both the quality and quantity of water discharged from nearby springs. Id. Hot water from the confined aquifer might even deposit poisonous geothermal chemicals into the shallower cold-water aquifer. Id. Two populations of endangered chub live within about a mile of the project area, and they depend on groundwater discharges. AR 8061, 10090. Other fish populations could suffer as well, including trout. AR 8061.
The Forest Service reviewed these comments and sent KORE a summary. See AR 69396. The Forest Service also began considering whether to approve the project in part as a sage grouse habitat restoration effort, which could accelerate its environmental review. See AR 15064, 15067. In the following month, KORE altered the draft exploration plan based on the public comments. See AR 19-60. Eventually, in September 2021, several months after public comments had come in, and about two months after the Forest Service raised the possibility of a partial restoration effort, it formally approved the project. As approved, the project has two parts.
First, as previously planned, KORE will clear and level twelve pads for its drilling equipment, and from each of these pads, it can drill three core borings. AR 2. For the most part, KORE will use existing public roads, but the Forest Service will allow it to construct about one-third of a mile of new temporary access roads. Id. To reduce harms to the sage grouse during their mating season, the Forest Service did not permit KORE to undertake any “disturbance activity” between March 1 and June 30. AR 15. KORE will use fences and other devices to prevent birds from perching on its equipment, and it will use acoustic screens and mufflers to reduce noise. AR 15-16. The Forest Service imposed a fifteen mile-per-hour speed limit on many roads to reduce the risk trucks will strike animals and birds, and to require workers to learn how to avoid harms to the wildlife and their habitats. AR 15. Drilling will finish within about six months, and any related work will finish within a year. AR 2.
Second, after drilling is complete, KORE must take steps to return the land to its previous condition. It will fill and cap the bore holes, regrade the drill pads to return the land to its original slope, and sow native seeds in the former drill pads and temporary access roads. AR 2, 46. For as many as three years after drilling is complete, a biologist will return and check on the land and vegetation. AR 2. The biologist can require more seeding, weeding and fence maintenance. AR 2-4, 37.
In the Forest Service's assessment, this plan would avoid any significant effects to the environment. Although drilling and trucks would disturb individual sage grouse while work is underway, the Forest Service believed these disturbances would not “affect their viability” within either the immediately surrounding area or the broader national forest. AR 5. The project is short-term, limited to a relatively small area, and the Forest Service would require the protective measures listed above-speed limits, time limits, seasonal limits, mufflers, and such-which would reduce the chances of harm to birds. See AR 15-16. The Forest Service also searched through records of the previous drilling operations and believed artesian flows were unlikely. See AR 342-43. A hydrogeological...
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