Greater Yellowstone Coal. v. Lewis

• Decision Date: 25 January 2011
• Docket Number: No. 09-35729,09-35729
• Parties: GREATER YELLOWSTONE COALITION; Natural Resources Defense Council; Sierra Club; Defenders of Wildlife, Plaintiffs-Appellants, v. Wilma A. LEWIS; Tom Tidwell; Robert V. Abbey; Thomas J. Vilsack; Ken Salazar; Brent Larson, Supervisor, Caribou-Targhee National Forest, Defendants-Appellees, J.R. Simplot Company; United Steelworkers Local 632; City of Pocatello; City of Chubbuck; City of Soda Springs; Power County; Caribou County; Bannock County; Idaho Farm Bureau Federation; Town of Afton, Wyoming; Lincoln County, Wyoming, Defendant-intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

628 F.3d 1143

GREATER YELLOWSTONE COALITION; Natural Resources Defense Council; Sierra Club; Defenders of Wildlife, Plaintiffs-Appellants,

v.Wilma A. LEWIS; Tom Tidwell; Robert V. Abbey; Thomas J. Vilsack; Ken Salazar; Brent Larson, Supervisor, Caribou-Targhee National Forest, Defendants-Appellees,J.R. Simplot Company; United Steelworkers Local 632; City of Pocatello; City of Chubbuck; City of Soda Springs; Power County; Caribou County; Bannock County; Idaho Farm Bureau Federation; Town of Afton, Wyoming; Lincoln County, Wyoming, Defendant-intervenors-Appellees.

No. 09-35729.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 6, 2010.

Filed Dec. 23, 2010.

As Amended Jan. 25, 2011.

Timothy J. Preso and Douglas L. Honnold; Earthjustice; Bozeman, MT; attorneys for the appellants.

Robert H. Foster, Aaron P. Avila, and Justin R. Pidot; United States Department of Justice; Washington, D.C.; attorneys for the appellees.

David H. Maguire; Maguire & Penrod; Pocatello, ID; and James Sanderson; Afton, WY; attorneys for intervenor-defendants United Steelworkers Local 632; Idaho Farm Bureau Federation; City of Pocatello, ID; City of Soda Springs, ID; City of Afton, WY; Power County, ID; Bannock County, ID; Caribou County, ID; and Lincoln County, WY.

Albert P. Barker and Paul L. Arrington; Barker Rosholt & Simpson, LLP; Boise,ID, attorneys for intervenor-defendant J.R. Simplot Company.

Appeal from the United States District Court for the District of Idaho, Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. 4:08-cv-00388-MHW.

Before: BETTY B. FLETCHER, A. WALLACE TASHIMA and SIDNEY R. THOMAS, Circuit Judges.

Opinion by Judge THOMAS; Dissent by Judge B. FLETCHER.

OPINION

THOMAS, Circuit Judge:

Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra Club, and Defenders of Wildlife (collectively "Greater Yellowstone") appeal the district court grant of summary judgment on Greater Yellowstone's action claiming that the expansion of the J.R. Simplot Smoky Canyon Mine would violate the National Environmental Policy Act ("NEPA"), the Clean Water Act ("CWA"), and the National Forest Management Act ("NFMA"). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Since 1984, J.R. Simplot Company ("Simplot") has operated the Smoky Canyon Mine in parts of the Caribou National Forest to acquire phosphate ore. Current mining operations encompass five panels, labeled A to E, occupying around 5,000 acres of land. Overburden from these panels contains waste rock with a high selenium concentration. Although essential to animal health in small amounts, selenium is toxic at elevated levels. Highly toxic selenium concentrations have been found in area streams. Because of the high selenium levels produced at the site, the existing mining operations are subject to an ongoing site investigation and response action under the Comprehensive Environmental Response, Compensation, and Liability Act.¹

To extend the life of the Smoky Canyon Mine, Simplot proposed to extract resources from two federal mineral leases adjacent to the mine, designated as panels F and G. Simplot sought approval from the two federal agencies with jurisdiction over the federal land. The United States Bureau of Land Management ("BLM") has jurisdiction over all phosphate mining leases on public land, see 30 U.S.C. § 211, and the United States Forest Service has the authority to provide a special use permit in furtherance of mining operations where such activities occur on forest system lands, such as the Caribou National Forest, see 36 C.F.R. § 251.

The agencies released a Draft Environmental Impact Statement ("DEIS") for public comment in 2005. The agencies held three public meetings in January 2006 and received 38,616 letters, emails, and comment forms responding to the DEIS. In October 2007, the agencies published a Final Environmental Impact Statement ("FEIS"). In the FEIS, the agencies concluded that the mine expansion would not contribute to violations of water quality standards. The agencies based this conclusion on the combined effects of (1) Simplot's efforts to reduce the selenium pollution seeping from Smoky Canyon's existing pits, and (2) Simplot's proposed store and release cover system.

In light of the existing selenium pollution, especially in Sage Creek, the agenciesacknowledged the necessity of remediating the current mining areas in order to avoid exacerbating the current water quality violations. The agencies determined two areas—Pole Canyon and Panel E—were the major sources of existing selenium pollution in Sage Creek. The agencies noted in the FEIS that determining all sources of existing pollution would require additional investigation. The FEIS evaluated the remediation efforts at Pole Canyon and Panel E, and concluded that the remediation efforts would significantly reduce existing selenium levels.

In combination with remediating existing pollution, Simplot sought to limit future selenium pollution from the mine expansion by reducing the amount of water that would flow through the newly extracted waste rock. Simplot conducted scientific modeling and analysis to predict the rate at which water would filter through the overburden and into surface water, and the amount of selenium such water would carry. Based on that information, Simplot designed a cover that would be placed throughout panels F and G to limit the percolation of water. However, when Simplot tested this cover using a HELP3 water balance model, the agencies determined the amount of precipitation entering the overburden needed to be reduced further.

To achieve the required reductions in percolation, Simplot developed the Deep Dinwoody Cover System, which consists of layers of one to two feet of topsoil, three feet of material from a geological stratum known as the Dinwoody Formation, and two feet of chert—a coarse material that encourages moisture storage and subsequent removal of moisture by evapotranspiration. The agencies eventually adopted this design in the FEIS.

To test the Dinwoody Cover, Simplot hired an independent environmental consultant, O'Kane Consultants, that performed two sets of studies using conservative estimates of the Dinwoody Cover elements. O'Kane first used 100 years of daily climate data to run a one-dimensional model study that estimated annual water infiltration based on evaporation, transpiration, runoff, and vertical percolation. Because the one-dimensional model did not account for horizontal movement of water, O'Kane then performed two two-dimensional studies. The first two-dimensional study took into account the full size of the mine, and was run across twenty years, including the five wettest years. The second two-dimensional study was run across the full 100 years, but used a shortened slope length instead of the full size of the mine. The two studies were conducted using this methodology because a full two-dimensional model would have taken at least three months to complete.

During the environmental review process, the agencies convened a twenty-four person interdisciplinary group of experts, six of whom were tasked with reviewing water quality issues. These six experts ("the technical review team") reviewed the results of the O'Kane studies to evaluate the models and results. One of these experts, Dr. Christopher Carlson, the Forest Service's National Ground Water Program Leader, expressed concern with the modeling. In his view, it failed to account for the seasonal surge of snowmelt and precipitation that occurs in the area. To address this concern, the technical review team asked a separate consulting firm, Knight Piésold Consulting Engineers, whether the studies accounted for seasonal variations. Knight Piésold concluded that the studies did account for seasonal variations by including in the inputs the peak flows, even though the output (the total water percolating through the cover) was reported annually. Because the studies showed the total annual output was no more than 0.7 inches of water, the annual output wouldremain the same even if that entire 0.7 inches seeped through during the peak flow months. After analyzing the O'Kane studies, the technical review team noted that the lack of monthly outputs "led to uncertainty within the technical review team about the short-term accuracy" of the results. However, the technical review team concluded that additional modeling was not necessary because the team members were confident in the long-term results and because Simplot agreed to testing of the cover to confirm it operated as the model predicted.

Throughout the review process, the agencies collaborated with the Idaho Department of Environmental Quality ("IDEQ"), the Idaho agency charged with enforcing water quality standards in Idaho. The IDEQ appointed members to the technical review team, assisted with sampling and interpreting results, and participated in the modeling review. It concluded that the mine expansion would not result in violation of either surface or groundwater quality standards, and concurred with the agencies' approval of the project.

The project was approved by the agencies, despite Greater Yellowstone's objections. After exhausting the administrative remedies, Greater Yellowstone filed suit in district court alleging the agencies' approval violated the CWA, the NFMA, and NEPA. Greater Yellowstone sought a preliminary injunction against the mine expansion. The court granted J.R. Simplot Company, various Idaho and Wyoming cities and counties, United Steelworkers Local 632, and the Idaho Farm Bureau Federation intervenor status. The district court denied the motion for a preliminary injunction and granted summary judgment for the agencies.² Greater Yellowstone filed a timely appeal to this court.

We review a district court's grant of summary judgment de novo. Arakaki v. Hawaii, 314 F.3d 1091, 1094(9th Cir.2002). We may set aside agency action if it is "arbitrary, capricious, an abuse of...