Idaho Conservation League v. U.S. Forest Serv.

• Decision Date: 11 July 2016
• Docket Number: Case No. 1:16-CV-0025-EJL
• Parties: IDAHO CONSERVATION LEAGUE, IDAHO RIVERS UNITED, and GOLDEN EAGLE AUDUBON SOCIETY, Plaintiffs, v. U.S. FOREST SERVICE, Defendant, and IDAHO CUMO MINING CORPORATION, Intervenor-Defendant.
• Court: U.S. District Court — District of Idaho

IDAHO CONSERVATION LEAGUE, IDAHO RIVERS UNITED,and GOLDEN EAGLE AUDUBON SOCIETY, Plaintiffs, v. U.S. FOREST SERVICE, Defendant,andIDAHO CUMO MINING CORPORATION, Intervenor-Defendant.

Case No. 1:16-CV-0025-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

July 11, 2016

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Pending before the Court in the above-entitled matter are the parties' Cross-Motions for Summary Judgment. The matters have been fully briefed and are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without a hearing.

FACTUAL AND PROCEDURAL BACKGROUND

1. Procedural Background

The underpinnings of this action began in 2011 when the Plaintiffs filed suit in this Court challenging the United States Forest Service's ("Forest Service") approval of the CuMo Exploration Project ("CuMo Project" or "the Project"). See Idaho Conservation League, et al., v. United States Forest Service, Case No. 1:11-cv-00341-EJL, 2012 WL 3758161 (D. Idaho, Aug. 29, 2012). In that case, the Court vacated, in part, the Forest Service's decision approving the Project and remanded the matter to the Forest Service for further evaluation. (1:11-cv-00341-EJL, Dkt. 55.) Thereafter the Forest Service conducted further analysis and, in September of 2015, again approved the Project.

Plaintiffs, Idaho Conservation League, Idaho Rivers United, and Golden Eagle Audubon Society, filed the Complaint initiating this matter challenging the Forest Service's supplemental decisions and approval of the Project. (Dkt. 1.)¹ The Plaintiffs raise claims under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), alleging violations of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"); the Forest Service Organic Act of 1897, 16 U.S.C. § 551 ("the Organic Act"); and the National Forest Management Act, 16 U.S.C. § 1600 et seq.("NFMA"). (Dkt. 1.) The Forest Service answersthat its decisions and approval of the Project satisfies the applicable standards and requirements of those statutes. (Dkt. 10.) Idaho CuMo Mining Corporation ("Idaho CuMo"), the private mining exploration company seeking to undertake the Project, has been allowed to intervene as a Defendant in this case. (Dkt. 6, 20, 21.)²

The parties have all filed Motions for Summary Judgment that have been fully briefed and are ripe for the Court's consideration. (Dkt. 19, 25, 27.) The Forest Service has also filed a related Motion to Strike the Plaintiffs' Declarations which Idaho CuMo has joined. (Dkt. 23, 26.) The Court takes up all of these Motions in this Order.

2. The Project

The CuMo Project is a five-year mining exploration project located on the Grimes Creek in the Boise River watershed within the Boise National Forest in Idaho. The Project Area encompasses approximately 2,885 acres of land in the Boise National Forest fourteen miles north of Idaho City, Idaho and five miles upstream from Pioneerville, Idaho. (CU080267-68, CU080301, CU083869.)³ The area lies within the Boise-Mores sub-basin. There are four access routes into the Project Area and an existing temporary road network. (CU080268, CU083870.)

In 2007, Idaho CuMo submitted a new Plan of Operations ("PoO") seeking to modifyand replace an existing PoO⁴ for the purpose of allowing expanded exploration activities for CuMo molybdenum prospect. In 2011 the Forest Service prepared an Environmental Assessment ("EA") and issued its first Decision Notice and Finding of No Significant Impact ("DN/FONSI") approving the Project. Operations on the Project began and were underway until this Court issued it's August 29, 2012 decision remanding the matter to the Forest Service for further analysis.

Following that ruling, in March of 2015, the Forest Service prepared a Supplemental Environmental Assessment ("SEA") which conducted further analysis of groundwater and addressed new information and changed circumstances that have occurred since the 2011 DN/FONSI was issued. (CU083853, CU083869.) The SEA considered three Project alternatives. Alternative A is the proposed action in the 2007 PoO. (CU083885.) Alterative B is the "Reduced Roads" alternative which addresses concerns over potential erosion and sedimentation to Grimes Creek. (CU083891.) Alternative C is the no action alternative which is included as a baseline from which to evaluate/compare the environmental effects of the two action alternatives. (CU083875, CU083879.) On September 30, 2015, the Forest Service issued its Supplemental Decision Notice and Finding of No Significant Impact ("SDN/FONSI") approving the CuMo Project and selecting Alternative B for implementation. (CU080263, CU080276.)

Under that decision, Idaho CuMo may conduct mineral exploration to delineate the extent of a copper/molybdenum mineral deposit in the Project Area. (CU083869, CU083875.) Alternative B allows for construction of up to 10.2 miles of new temporary roads and utilization of the 4.7 miles of existing unauthorized roads for the purpose of developing up to 137 drill pads. (CU080277, CU083891.) From those drill pads, Idaho CuMo may drill up to 259 holes ranging in length from 1,500 to 3,000 feet. (CU080277-78, CU083891.) The Project proposes using a closed-system drilling process where synthetic non-toxic, biodegradable polymer drill fluid will be re-circulated within the mud pits which will then be covered, compacted, and recontoured upon completion. (CU080277.) The operating season will run between April 15 and December 15 with drilling to be conducted on a 24-hour schedule. (CU080277-78.) Upon completion, all holes will be filled and sealed. The SEA specifies conditions for the number of drill rigs at a given time, the type of drill machines and water pumps to be used, the construction of any structures or sheds, on-site storage of drill consumables, spill prevention measures, and measures to be taken following the completion of the Project in terms of the holes, drill pads, mud pits, and roads. (CU080277-81.)

STANDARD OF REVIEW

1. Summary Judgment

Federal Rule of Civil Procedure 56 provides, in pertinent part, that the "Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).In order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.

British Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371, 374 (9th Cir. 1989) (citation omitted).

The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to "go beyond the pleadings" and "designate specific facts" in the record to show a trial is necessary to resolve genuine disputes of material fact. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party's case and upon which the non-moving party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322.

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For summary judgment purposes, an issue must beboth "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue is "genuine" if it must be established by "sufficient evidence supporting the claimed factual dispute...to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat. Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)); see also British Motor Car, 883 F.2d at 374.

In considering a motion for summary judgment, the Court does not make findings of fact or determine the credibility of witnesses, Anderson, 477 U.S. at 255; rather, it must draw all inferences and view all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587 (citation omitted).

2. Administrative Procedure Act

Judicial review of administrative agency decisions is made under the APA. 5 U.S.C. § 702. Such review is based on the administrative record compiled by the agency - not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). APA claims may be resolved via summary judgment pursuant to the standard set forth in Rule 56. See Nw. Motorcycle Ass'n v. United States Dept. Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).

The claims in this case raise factual or technical disputes,...