Gifford Pinchot Task Force v. Perez
| Decision Date | 03 July 2014 |
| Docket Number | No. 03:13-cv-00810-HZ,03:13-cv-00810-HZ |
| Parties | GIFFORD PINCHOT TASK FORCE, a non-profit corporation, Plaintiff, v. JEROME E. PEREZ, in his official capacity as Oregon/Washington State Director, BLM; UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States Government; JANINE CLAYTON, in her official capacity as Forest Supervisor of the Gifford Pinchot National Forest; and UNITED STATES FOREST SERVICE, an agency of the United States Government, Defendants and ASCOT USA, INC. and ASCOT RESOURCES LTD., Intervenor-Defendant |
| Court | U.S. District Court — District of Oregon |
Tom Buchele
EARTHRISE LAW CENTER
Roger Flynn
WESTERN MINING ACTION PROJECT
Attorneys for Plaintiff
Dean K. Dunsmore
U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Division
C/O Office of U.S. Attorney
Romney S. Philpott
U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Division
Stephen Odell
ASSISTANT UNITED STATES ATTORNEY
Attorneys for Defendants
Per A. Ramfjord
Crystal S. Chase
STOEL RIVES LLP
Attorneys for Intervenor-Defendant
In this environmental case, Plaintiff Gifford Pinchot Task Force challenges the issuanceof a permit approving the Goat Mountain Hardrock Prospecting Project ("the Project"). Both Defendant the Bureau of Land Management (BLM) and Defendant the United States Forest Service (USFS) were involved in the decision approving the Project. Named Defendants also include Jerome Perez in his official capacity as Oregon/Washington State Director of the BLM, and Janine Clayton in her official capacity as Forest Supervisor of the Gifford Pinchot National Forest. In a June 13, 2013 Order, I granted the motion to intervene by Ascot USA and its parent company Ascot Resources (collectively "Ascot").
Plaintiff and Ascot move for summary judgment. For the reasons explained below, I grant the motions in part and deny them in part.
The agency actions challenged in this case authorize exploratory drilling on approximately 900 acres of land within the Gifford Pinchot National Forest, in an area located adjacent to the Mt. St. Helens National Volcanic Monument. The 900 acres is within U.S. Mineral Survey (MS) parcels 708, 774, 779, 1329, and 1330. Admin. Rec. 240.1 The United States holds full title and interest to 100% of the mineral estate of all of these parcels, except for MS 708. 2012 EA, AR 1086-87. The United States owns an undivided 50% mineral interest in MS 708. Id. Thus, as to MS 708, the United States owns 100% of the surface estate and an undivided 50% interest in the underlying mineral estate. Ascot owns the other 50% of the underlying mineral estate of MS 708.
The BLM, working with the USFS, issued an Environmental Assessment (EA) related to the Project on June 29, 2012, which was modified November 30, 2012 (the 2012 EA). 2012 EA, AR 1068-1279. The Project includes the drilling of a total of 63 rock core holes from 23 drill pads to collect rock core samples for analysis to obtain geological and mineralogical information. 2012 EA, AR 1084. Generally, it entails "reactivation" of approximately 1.69 miles of existing decommissioned roads, installation of drilling-related equipment, elimination of trees and other vegetation within and along the roads and at each drill site, and pumping of 5,000 gallons of ground water per day. 2012 EA, AR 1097-1111.
The diameter of the drill holes is relatively small at about 2.5 inches. 2012 EA, AR 1103. The total area disturbed by the drilling will be less than one-quarter acre. Id. The total area affected by the drilling, including reopened roads, is about 3.3 acres. Id. Portable rigs are used. 2012 EA, AR 1104. The rigs are operated 24 hours per day, 7 days for week, but less then 1 week in each specific location. 2012 EA, AR 1193.
After the 2012 EA was issued in November 2012, the USFS issued a Decision Notice (DN) and Finding of No Significant Impact (FONSI), on December 3, 2012. AR 821-40. The USFS's DN/FONSI documented the USFS's consent to the BLM for issuing two Federal Hardrock Mineral Prospecting Permits and specified certain required conditions for the use and protection of the National Forest System. USFS DN/FONSI, AR 821. The Project was then approved by the BLM in a Decision Record (DR) and separate FONSI on December 20, 2012. AR 240-263 (DR); AR 264-68 (FONSI). The USFS denied Plaintiff's administrative appeal on March 21, 2013. Supp. AR 2811-38. The USFS clarified that decision on April 2, 2013. Supp. AR 2839-42.
Plaintiff challenges the USFS's DN/FONSI, the BLM's DR and FONSI, and the USFS's Appeal Decision, as well as the 2012 EA, upon which all of these other decisions were based. Plaintiff brings the following claims:
(1) violations of the Land & Water Conservation Fund Act (LWCF Act), the Reorganization Plan No. 3 of 1946, and the Weeks Act of March 1, 1911 and March 4, 1917, based on Plaintiff's contention that Defendants' approval of the Project is inconsistent with and interferes with the purposes for which the land was acquired and authorizes activities that will directly interfere with recreation on lands purchased with funds obligated to provide outdoor recreation to the public;
(2) violation of the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1687, by authorizing the Project without ensuring that the Project's activities will comply with applicable standards and guidelines set out in the Gifford Pinchot Land and Resource Management Plan, as amended by the Northwest Forest Plan; and
(3) violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, by failing to prepare an Environmental Impact Statement (EIS), by failing to include a baseline groundwater analysis, by failing to address the synergistic and cumulative effects of the Project, by failing to provide any detailed analysis of mitigation measures and the effectiveness of each measure, and by failing to consider all reasonable alternatives.
Plaintiff seeks declaratory and injunctive relief as follows: (1) vacating and setting aside the USFS's DN/FONSI, the BLM's DR and FONSI, the USFS's Appeal Decision, and the 2012 EA; (2) declarations that Defendants violated NEPA in all the ways that Plaintiff alleges; (3) enjoining Defendants from making any further decision or implementing any decision regardingdrill applications within the Gifford Pinchot National Forest unless and until Defendants comply with NEPA, the NFMA, the LWCF Act, the Reorganization Plan, and the Weeks Act; and (4) enjoining Defendants from allowing any further exploratory drilling within the Gifford Pinchot National Forest until Defendants comply with those statutes.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Ninth Circuit has endorsed summary judgment motions as "'an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.'" City & Cnty. of S.F. v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985)).
All of the claims in this case are governed by the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (APA). Under the APA, a federal court "shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be[:] (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] without observance of procedures required by law[.]" 5 U.S.C. § 706(2).
Organized Village of Kake v. U.S. Dep't of Agric., 746 F.3d 870, 974 (9th Cir. 2014).
The court "must consider whether the decision was based on a...
To continue reading
Request your trial