Great Basin Mine Watch v. Hankins

• Decision Date: 01 August 2006
• Docket Number: No. 04-16125.,04-16125.
• Parties: GREAT BASIN MINE WATCH, and Mineral Policy Center, Plaintiffs-Appellants, v. Helen HANKINS, United States Department of the Interior, and Bureau of Land Management, Defendants-Appellees, Newmont USA Limited, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

456 F.3d 955

GREAT BASIN MINE WATCH, and Mineral Policy Center, Plaintiffs-Appellants, v. Helen HANKINS, United States Department of the Interior, and Bureau of Land Management, Defendants-Appellees Newmont USA Limited, Defendant-Intervenor-Appellee.

No. 04-16125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2006.

Filed August 1, 2006.

Roger Flynn, Jeffrey C. Parsons, Western Mining Action Project, Boulder, CO; Nicole U. Rinke, Western Mining Action Project, Reno, NV, for the plaintiffs-appellants.

Thomas L. Sansonetti, Andrew Mergen, John E. Arbab, Dept. of Justice, Washington, D.C., for the defendants-appellees.

Scott W. Hardt, Temkin Wielga & Hardt LLP, Denver, CO, for the intervenor-appellee.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-02-00605-HDM/RAM.

Before J. CLIFFORD WALLACE, MICHAEL DALY HAWKINS, and SIDNEY R. THOMAS, Circuit Judges.

WALLACE, Circuit Judge.

Great Basin Mine Watch and the Mineral Policy Center (collectively, Great Basin) appeal from the district court's summary judgment on their claims against the United States Department of the Interior and the Bureau of Land Management (collectively, Bureau). Great Basin alleged that the Bureau's approval of two gold mining permits to the Newmont Mining Corporation (Newmont) violated, inter alia, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4312, and the Administrative Procedure Act (APA), 5 U.S.C. §§ 704-706. Newmont appears as an intervenor in this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

I.

In March 1997, Newmont submitted a plan proposing expansion of Newmont's existing open-pit gold mining and ore processing facilities to the Elko Field Office of the Bureau. The proposed expansion was to be located at Newmont's South Operations Area Project, which was approved in 1993, approximately six miles northwest of Carlin, Nevada. The expansion was to be known as the South Operations Area Project Amendment (Amended South Project) and was estimated to result in a total additional disturbance of 1,392 acres of land, 839 of which are public. Amended South Project was intended to deepen the existing Gold Quarry Mine, to continue dewatering the mine, and to continue discharging excess groundwater into Maggie Creek, a creek located near the mine.

Pursuant to NEPA, the Bureau concluded that Amended South Project could cause a significant environmental impact and ordered the preparation of an environmental impact statement (EIS). The Bureau released a draft EIS in September 2000, and issued a final EIS in April 2002. In April 2002, the Bureau also released the "Cumulative Impact Analysis of Dewatering and Water Management Operations for the Betze Project, South Operations Area Project Amendment, and Leeville Project," a technical report detailing the hydrological effects of three proposed and existing mining projects in the region.

The Bureau issued a Record of Decision for Amended South Project in July 2002. The Decision chose an alternative to Newmont's plan, consisting of Newmont's Amended South Project proposal and an amended version of the 1993 South Project mitigation plan. The Decision found that the revised agency-preferred alternative would not "cause unnecessary or undue degradation of the public lands, and [would] not cause any unacceptable conflict with other significant resources in the area."

Pursuant to its regulations, the Bureau directed Newmont to post an incremental bond of $19,753,284 for the first phase of Amended South Project, which called for the expansion of a waste rock disposal facility, a $3,000,000 bond for possible stream flow augmentation, and a $465,000 bond for groundwater and surface water monitoring. Pursuant to the Bureau's regulations, Newmont would have to post further phased bonds before going ahead with other activities.

Meanwhile, in April 1997, one month after submitting the Amended South Project proposal, Newmont submitted a proposal for the Leeville Project (Leeville), a proposed underground gold mine located twenty miles northwest of Carlin. The plan, which like the Amended South Project was submitted to the Elko Field Office, called for construction of five shafts to depths of approximately 2,500 feet to access three main bodies of ore and for construction of ancillary mine facilities. The proposal was estimated to result in a disturbance of 486 acres of land, 453 of which are public. Refractory ore produced from Leeville was to be hauled by truck and processed at an existing mill located at the South Operations Area.

The Bureau determined that the Leeville proposal could potentially have a significant environmental impact and prepared an EIS. The Bureau released a draft EIS in March 2002, and a final EIS in July 2002. The April 2000 Cumulative Impacts Analysis was "used as a foundation for the cumulative impacts analyses" with regard to Leeville.

The Bureau issued a Record of Decision for Leeville in September 2002. The Leeville Decision selected the agency-preferred alternative, which modified the Leeville proposal and implemented a mitigation plan. As with the Amended South Project Decision, the Leeville mitigation plan was an extension of the 1993 South Project mitigation plan and mainly addressed impacts related to dewatering. The Bureau found that implementation of the agency-preferred alternative and the Leeville mitigation plan would not "cause unnecessary or undue degradation of the public lands and[would] not cause any unacceptable conflict with other significant resources in the area." The Bureau ordered Newmont to provide a bond of $4,974,200 for post-mine closure reclamation, and a bond of $875,700 for groundwater and surface water monitoring.

Two months later, Great Basin filed an action in the district court against the Bureau of Land Management, the Department of the Interior, and Helen Hankins, the manager of the Bureau's Elko Field Office. The complaint sought judicial review of the final EISs, the Decisions, and the bonding determinations, asserting claims under federal statutes including NEPA and the APA. Newmont intervened as a defendant. The parties filed cross-motions for summary judgment. Before the district court acted on the motions, Great Basin sought to introduce an extra-record document from the Nevada Division of Environmental Protection. According to Great Basin, this document was relevant as to whether Amended South Project and Leeville were connected actions that should have been evaluated in a single EIS. The district court refused to admit the document or to take judicial notice of the facts contained in the document.

The district court entered summary judgment in favor of defendants on all claims.

II.

We review the summary judgment de novo. Hall v. Norton, 266 F.3d 969, 975 (9th Cir.2001). As this is a record review case, "we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record." Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005) (as amended). The district court's determination as to whether an EIS satisfies the requirements of NEPA is a question of law reviewed de novo. City of Carmel-by-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1150(9th Cir.1997). Whether a plaintiff has exhausted required administrative remedies is a question of law reviewed de novo. See Bankston v. White, 345 F.3d 768, 770 (9th Cir.2003).

Judicial review of agency decisions under NEPA, the Clean Water Act, and the Federal Land Policy Management Act (Management Act) is governed by the APA, which dictates that an agency action may be overturned only where it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (applying arbitrary and capricious standard to the adequacy of an EIS under NEPA); Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.2002) (applying arbitrary and capricious standard to NEPA claims); Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998) (applying arbitrary and capricious standard to Clean Water Act claims).

In determining whether a decision is arbitrary and capricious, we will "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Thomas, 137 F.3d at 1149, quoting Marsh, 490 U.S. at 378, 109 S.Ct. 1851. We must also ensure that the agency "took a hard look at the environmental consequences of its action." Northwest Resource Info. Ctr., Inc. v. Nat'l Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir.1995) (internal quotations and citations omitted). However, we may reverse under the arbitrary and capricious standard only if the agency has relied on factors Congress has 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." Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.2003) (noting standard), amended by 352 F.3d 1186 (9th Cir.2003).

We review the district court's decision whether to admit extra-record evidence for an abuse of discretion. Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir. 1996).

III.

In 1972, Congress passed the Clean Water Act to create a comprehensive national system of regulation of water pollution, in which the federal government and the states share responsibilities. See 33 U.S.C. §§ 1251-1376. There are two general types of standards under the Act: effluent standards, which limit the quantity of...