Great Basin Res. Watch v. United States Dep't of the Interior
| Decision Date | 31 March 2023 |
| Docket Number | 3:19-cv-00661-LRH-CSD |
| Parties | GREAT BASIN RESOURCE WATCH; et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; et al., Defendants, EUREKA MOLY, LLC, Defendant-Intervenor. |
| Court | U.S. District Court — District of Nevada |
The present litigation follows a 2013 lawsuit in this district before U.S. District Court Judge Robert C. Jones and an appeal to the Ninth Circuit Court of Appeals in which Great Basin Resource Watch (“GBRW”) and Western Shoshone Defense Project (“WSDP”) challenged the Bureau of Land Management's (“BLM”) approval of the Mt. Hope Project.[1] As a result of that litigation, Judge Jones vacated BLM's record of decision regarding the Project and remanded to BLM. On remand, BLM approved the Project a second time. Now joined by Progressive Leadership Alliance of Nevada (“PLAN”), GBRW and WSDP challenge BLM's second approval of the Project. Before the Court are the plaintiffs', defendants', and defendant-intervenor's motions for summary judgment.[2] For the reasons explained below, the Court grants Plaintiffs' motion in part and denies it in part. Accordingly, the Court also grants in part and denies in part the Defendants' motions.
The Project is an eighty-year mining operation located near Eureka, Nevada. AR06673-74. Eureka Moly, LLC (“EML”) intends to mine for molybdenite ore, which will produce recoverable molybdenum. AR066773. The Project will consist of “an 18- to 24- month construction phase, 44 years of mining and ore processing, 30 years of reclamation, and five years of post-closure monitoring.” AR066774. And it will span across 21,523 acres of both private and public land, causing surface disruption to 8,355 acres. Id. EML holds 14 patented claims on the private land and approximately 1,550 lode mining claims and mill site mining claims on the public land. Id. The Project will consist of an open pit mine and ancillary facilities. Id.
Throughout the Project, EML will use an open pit mining method and a flotation and roasting process to process the mined ore. AR066773. The estimated 966 million tons of molybdenite ore mined will produce approximately 1.1 billion pounds of recoverable molybdenum and approximately 1.7 billion tons of waste rock and 1 billion tons of tailings. AR066774. In addition, the Project will utilize dewatering in the open pit and will require ground water pumping in other areas. AR066364. These two actions will lower the water table in the vicinity of those facilities and will impact springs and streams. Id.; AR066365. BLM concluded that four of the springs within the Project area are considered PWR 107 springs. AR066364.
In 2013, GBRW and WSDP sued BLM, challenging BLM's approval of the Project.[3] They alleged that BLM failed to protect lands withdrawn under Public Water Reserve 107 (“PWR 107”), violated the National Environmental Policy Act (“NEPA”), and violated the Federal Land Policy Management Act (“FLPMA”). Great Basin Res. Watch, 2014 WL 369661 at *2. In a summary judgment order, the district court found in favor of the defendants on all issues. Id. at 7-18.
On appeal, the Ninth Circuit held that BLM violated NEPA but declined to reach the PWR 107 claim and the FLPMA claim, reasoning that BLM should be given an opportunity to correct the NEPA violations “before challenges to the approval of the Project itself are entertained.” Great Basin, 844 F.3d at 1101-11, 1111 n.10. Although the court did not reach the PWR 107 claim, it indicated that BLM should confirm whether four springs within the Project area are PWR 107 springs. Id. at 1111.
On remand, the district court vacated the 2012 Record of Decision and remanded to the BLM. Subsequently, BLM issued a supplemental environmental impact statement, followed by a new record of decision in 2019. See AR066344; AR066770. The 2019 Record of Decision approved the Project. AR066772. Plaintiffs now challenge the 2019 Record of Decision, alleging BLM violated PWR 107 and related laws, NEPA, and the FLPMA.
350 Mont. v. Haaland, 29 F.4th 1158, 1168 (9th Cir. 2022) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). When reviewing agency action under this standard, a court “may not substitute [its] judgment for that of the agency,” and must limit its review to “the grounds that the agency invoked when it took the action.” Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv., 33 F.4th 1202, 1216 (9th Cir. 2022) (internal quotations omitted). “This standard is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (internal quotation marks omitted).
Plaintiffs seek summary judgment on their PWR 107, NEPA, and FLPMA claims. Specifically, they argue that (1) BLM failed to protect water rights and withdrawn lands under PWR 107; (2) BLM violated NEPA by failing to adequately analyze direct, indirect, and cumulative impacts, baseline conditions, and mitigation and related project impacts; and (3) BLM violated the FLPMA by failing to adequately prevent unnecessary or undue degradation of public resources and by failing to include the reclamation costs and financial assurances in the Record of Decision. The Court addresses each argument in turn.
Plaintiffs first assert that BLM failed to adequately protect federal water reserves that are located within the project area and thereby violated PWR 107 and related laws.
President Calvin Coolidge created PWR 107 by executive order in 1926 pursuant to his authority under the Pickett Act. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 966 (9th Cir. 2006); United States v. Idaho, 959 P.2d 449, 451 (Idaho 1998). The executive order provided:
It is hereby ordered that every smallest legal subdivision of the public land surveys which is vacant unappropriated unreserved public land and contains a spring or water hole, and all land within one quarter of a mile of every spring or water hole located on unsurveyed public land be, and the same is hereby, withdrawn from settlement, location, sale, or entry, and reserved for public use in accordance with the provisions of Sec. 10 of the [Stock Raising Homestead Act of 1916 (“SRHA”)] and in aid of pending legislation.
Hankins, 456 F.3d at 966. This withdrawn land remained subject to the Pickett Act, which provided that “all lands withdrawn under the provisions of this Act shall at all times be open to exploration, discovery, occupation, and purchase, under the mining laws of the United States, so far as the same apply to metalliferous minerals.” Act of June 25, 1910, Pub. L. No. 3030, Act of August 24, 1912, Pub. L. No. 316, ch. 369.[4] Thus, PWR 107 withdrew qualifying springs and land but held them open to exploration, discovery, occupation, and purchase for metalliferous minerals as permitted by the mining laws.
In the previous litigation, Plaintiffs raised a PWR 107 claim before the district court and the Ninth Circuit. The Ninth Circuit declined to address this claim, in part, because “the proper analysis of the PWR 107 claim turns in large part on whether” certain springs within the Project area are covered by PWR 107, but BLM's position on that issue was unclear. Great Basin, 844 F.3d at 1111. On remand, the BLM examined several springs within the Project area and determined that four springs and their surrounding land are covered by PWR 107.[5] AR066362.
Plaintiffs now allege that BLM failed to adequately protect the PWR 107 springs and surrounding land because it approved EML's proposal to permanently dump its waste rock on the land even though EML does not have a valid mining claim for those lands and the lands do not contain metalliferous minerals. In turn, Defendants argue that the Pickett Act's exception that withdrawn lands remain open for exploration and occupation for metalliferous minerals as permitted by the Mining Law applies, and that EML has a statutory right under the Mining Law to occupy and use open lands for its waste rock and tailings facilities. Notably, the parties agree that the four springs and the surrounding land qualify for PWR 107 protection, that molybdenite ore qualifies as a metalliferous mineral, and that no mining will occur on the land. The parties' main disagreement focuses on whether BLM can occupy the land that qualifies for PWR 107 protection by dumping waste rock on it. The Court agrees with Plaintiffs that BLM cannot do so.[6]
PWR 107 withdrew qualifying springs and their surrounding land “to prevent monopolization of water needed for domestic and stock watering purposes.” Hankins, 456 F.3d at 966. They, however, remained open to occupation relating to metalliferous minerals as the mining laws permitted. Plain...
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