Greater Yellowstone Coalition v. Larson
| Decision Date | 04 August 2009 |
| Docket Number | Case No. CV-08-388-E-MHW. |
| Citation | 641 F.Supp.2d 1120 |
| Parties | GREATER YELLOWSTONE COALITION, et al., Plaintiffs, v. Brent LARSON, Supervisor, Caribou-Targhee National Forest, in his official capacity, et al., Defendants. and J.R. Simplot Company, et al., Intervenor-Defendants. |
| Court | U.S. District Court — District of Idaho |
David Z. Nevin, Nevin Benjamin & McKay, Boise, ID, Douglas L. Honnold Sean M. Helle Timothy J. Preso, EarthJustice, Bozeman, MT, for Plaintiffs.
Lori Caramanian, Robert H. Foster, US Dept. of Justice, Natural Resources Section, Denver, CO, for Defendants.
Albert P. Barker, Barker Rosholt & Simpson LLP, Sheila Glusco Bush, Terry T. Uhling, J.R. Simplot Company, Boise, ID, Paul Lamar Arrington, Barker Rosholt & Simpson LLP, Twin Falls, ID, David H. Maguire, Maguire & Kress, Pocatello, ID, James Kendall Sanderson, Sanderson Law Office, Afton, WY, for Intervenor-Defendants.
Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra Club, and Defenders of Wildlife ("Plaintiffs") challenge the decision of the U.S. Forest Service ("Forest Service") and the Bureau of Land Management ("BLM") (collectively, the "Agencies" or "Federal Defendants") to allow expansion of the J.R. Simplot's ("Simplot") Smoky Canyon Mine (the "Mine") into two new panels that have not been previously subject to phosphate mining. Pending before the Court are Plaintiffs' Motion for Summary Judgment (Docket No. 156), Simplot's Cross Motion for Summary Judgment (Docket No. 173), and the Federal Defendants' Cross Motion for Summary Judgment (Docket No. 183).
Because review of agency actions is limited to the administrative record without triable facts, summary judgment may be granted to either party based on a review of that record. Having carefully reviewed the record and having considered the briefing and oral arguments of all parties, the Court enters the following Order denying Plaintiffs' motion and granting Simplot's and the Federal Defendants' motions for the reasons set forth below.
As more thoroughly discussed in a prior Order (Docket No. 104), Plaintiffs brought this action against the Federal Defendants challenging their decision approving the Mine expansion and claiming that the expansion will result in irreparable harm to the environment and will adversely impact their members' enjoyment of recreational, aesthetic, and conservation interests within the Caribou-Targhee National Forest (the "Forest"). The Court granted Simplot, various Idaho and Wyoming cities and counties, United Steelworkers Local 632, and the Idaho Farm Bureau Association intervenor status. See Orders (Docket Nos. 82 and 97).
On September 22, 2008, Plaintiffs filed a motion for a preliminary injunction on their claims under the Clean Water Act, National Forest Management Act, and the National Environmental Policy Act. Plaintiffs argued that the Agencies had failed to adequately address the selenium contamination that could occur if the Mine expanded. After extensive briefing and oral argument, the Court denied Plaintiffs' motion finding that Plaintiffs had neither demonstrated a likelihood of success on the merits of their claims nor demonstrated a likelihood of irreparable harm or that the balance of harms tipped in their favor. See Order (Docket No. 104). Plaintiffs appealed the Court's decision to the Ninth Circuit Court of Appeals and also filed a Motion for Preliminary Injunction Pending Appeal (Docket No. 106) which the Court denied. See Order (Docket No. 120). The Ninth Circuit likewise denied Plaintiffs' motion for preliminary injunction pending appeal. See USCA Order (Docket No. 124).
On April 10, 2009, 323 Fed.Appx. 512 (9th Cir.2009), the Ninth Circuit issued a Memorandum decision finding no abuse of discretion in the Court's preliminary conclusion that Plaintiffs were not likely to succeed on the merits of their claims and that Plaintiffs had not established a likelihood of irreparable harm due to potential selenium contamination. See USCA Mem. (Docket No. 129). However, the Ninth Circuit also found that the Court failed to consider the harm caused by Simplot's preparatory expansion activities when reaching a decision on the irreparable harm analysis. Accordingly, the Ninth Circuit vacated the Court's Order and remanded the case for consideration of the effect of the preparatory activities. In doing so, it issued a temporary stay until the Court had an opportunity to re-analyze the irreparable harm issue.
On May 13, 2009, the Court entered an Order lifting the temporary stay allowing the preparatory work to proceed. (Docket No. 160.) On June 4, 2009, the Ninth Circuit denied a second emergency motion for injunction pending appeal of the Court's order lifting the stay. See USCA Order (Docket No. 170).
On July 24, 2009, the Court heard argument on the pending summary judgment motions. On July 25, 2009, the Court conducted a 6-hour site visit of the Smoky Canyon Mine. The Court was accompanied by counsel and a party representative for each of the parties. The Court viewed panels that have been previously mined for phosphate and since reclaimed, the Pole Canyon remediation area, the panels subject to current mining activities, current site preparation and mining on Panel F, and the undisturbed area of the Forest where Panel G will be developed. The Court also viewed the method being used to divert water from various panels. Finally, the Court viewed South Fork Sage Creek and Hoopes Springs. With the concurrence of counsel, photographs were taken at various locations during the site visit. These photographs and comments by the Court as to its observations at these various locations will be filed as a Court exhibit within ten (10) days from the date of this Order.
In its Order denying Plaintiffs' preliminary injunction motion, the Court reviewed the history of phosphate mining in southeastern Idaho in general and the history of Simplot's mining endeavors in particular. The Court believes this background is important when reviewing the merits of the claims, and will again revisit that information to place the decision in context.
In the 1870s, prospectors staked mining claims in southeastern Idaho and dug numerous pits and tunnels searching for copper, gold, or silver. At times, this prospecting activity occurred in areas containing phosphate rock. In the early 1900s, various individuals and groups started to recognize the potential value of some of these old mining claims, not for gold or silver, but for phosphate which could be used to produce fertilizer.
In 1908 and 1909, pursuant to a number of Secretarial Orders, the Secretary of the Interior withdrew from entry over 5 million acres of public lands in the West containing phosphate. Almost half of those lands were later restored.
In 1910, President Taft signed into effect the Pickett Act which gave the executive branch the power to withdraw public lands to protect phosphate reserves from foreign acquisition and to ensure that the United States would not be dependent on European countries for phosphate. Under the Act, the government withdrew approximately 2,500,000 acres in Idaho, Wyoming, and Utah that had formerly been temporarily withdrawn by the Secretary of Interior and designated them as the Western Phosphate Reserve.2 Litigation in the courts and Congress' efforts to establish a method of patenting phosphate claims over the next few years culminated in the passage of the Mineral Leasing Act ("MLA") in 1920. Under the MLA, phosphate was removed from the jurisdiction of the Mining Act of 1872, and a royalty system was established to provide income to the federal government. Since the enactment of the MLA, access to the phosphate reserves is available only through a competitive leasing process. The United States designated certain Known Phosphate Lease Areas ("KPLA") in the Caribou-Targhee National Forest which are subject to that leasing process.
Pursuant to the MLA, the BLM administers 84 phosphate mineral leases on 46,000 acres of land in southeastern Idaho, some of which are held by Simplot. The BLM cooperates with the Forest Service, Idaho Department of Environmental Quality ("IDEQ"), and other state and federal agencies in evaluating and mitigating any adverse environmental consequences of phosphate mining.
Phosphate is mined from open pits. First, dirt, rock, and other material are removed from the site to expose the phosphate ore. This material is otherwise known as overburden. When a pit is mined out, it is backfilled with the overburden and reclaimed. Excess overburden is disposed of in sites adjacent to the mine pits and also reclaimed. Prior reclamation practices called for planting new vegetation directly on the overburden.
Phosphate in the southeastern Idaho area contains selenium which in small quantities is a necessary nutrient in plant and animal life. A problem arises, however, when the overburden from phosphate mining is exposed to the elements causing the selenium to concentrate and become toxic. Precipitation falling on the seleniferous waste causes infiltration into the groundwater or runoff into the ground or nearby streams.
In 1996, toxic amounts of selenium were discovered in some of the waters in southeastern Idaho, near the phosphate mines, after numerous livestock deaths occurred and abnormalities in aquatic life were noted. The source of the selenium contamination was determined to be water percolating through the mines' overburden into the groundwater, draining into surface water, or being absorbed by vegetation. Animals ingesting vegetation growing out of the overburden areas or being irrigated by contaminated water necessarily ingested concentrated amounts of selenium. These...
To continue reading
Request your trial
-
W. Watersheds Project v. Zinke
...Act ("APA")"Challenges to final agency actions are reviewed under the deferential standard of the [APA]." Greater Yellowstone Coal. v. Larson , 641 F.Supp.2d 1120, 1129 (D. Idaho 2009). Agency compliance with NEPA and FLPMA is reviewed under the APA. See Ctr. for Biological Diversity v. U.S......
-
Wilderness Soc'y v. U.S. Forest Serv.
...is ‘to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.’ ” Greater Yellowstone Coal. v. Larson, 641 F.Supp.2d 1120, 1130 (D.Idaho 2009) (quoting 33 U.S.C. § 1251(a)). “The CWA requires federal agencies to determine that approved actions do not re......
-
Cnty. of Maui v. Haw. Wildlife Fund
...take "literally dozens, and perhaps hundreds, of years for any pollutants" to reach navigable waters); Greater Yellowstone Coalition v. Larson , 641 F.Supp.2d 1120, 1139 (D. Idaho 2009) (same in respect to instances where it would take "between 60 and 420 years" for pollutants to travel "on......
-
Raritan Baykeeper, Inc. v. NL Indus., Inc.
...hold that "if the ground water is hydrologically connected to surface water," it is subject to the CWA. Greater Yellowstone Coal. v. Larson, 641 F. Supp. 2d 1120, 1138 (D. Idaho 2009), aff'd, 403 Fed. App'x. 275 (9th Cir. 2010); see also Washington Wilderness Coal. v. Hecla Mining Co., 870 ......