Mineral Policy Center v. Norton, Civil Action 01-00073 (HHK) (D. D.C. 11/18/2003)

• Decision Date: 18 November 2003
• Docket Number: Civil Action 01-00073 (HHK).
• Parties: MINERAL POLICY CENTER, et al., Plaintiffs, v. GALE NORTON, et al., Defendants, and NATIONAL MINING ASSOCIATION, Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

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MINERAL POLICY CENTER, et al., Plaintiffs, v. GALE NORTON, et al., Defendants, and NATIONAL MINING ASSOCIATION, Defendant-Intervenor.

Civil Action 01-00073 (HHK).

United States District Court, District of Columbia.

November 18, 2003.

MEMORANDUM OPINION

HENRY KENNEDY, District Judge.

Plaintiffs, Mineral Policy Center, Great Basin Mine Watch, and Guardians of the Rural Environment,¹ bring this action to challenge the revision of federal mining regulations promulgated by defendant, Bureau of Land Management ("BLM"), United States Department of the Interior ("Interior"), on October 30, 2001.² According to plaintiffs, the regulations, codified at 43 C.F.R. § 3809 (2003) ("2001 Regulations") "substantially weaken, and in many instances eliminate, BLM's authority to protect the public's lands, waters, cultural and religious sites, and other resources threatened by industrial mining operations in the West." Pls.' Mot. for Summ. J. at 1. Plaintiffs therefore contend that the regulations run counter to BLM's statutory duty, as set forth in its guiding statute, the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq. (2000) ("FLPMA"), to "take any action necessary to prevent unnecessary or undue degradation of the [public] lands." 43 U.S.C. § 1732(b). Accordingly, plaintiffs ask this court to vacate and remand any portion of the 2001 Regulations not in accordance with federal law.

Before this court are the parties' and intervenor's cross-motions for summary judgment.³ Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that each motion should be granted in part and denied in part.

I. BACKGROUND INFORMATION

A. Regulatory Background

1. The Mining Law

A correct resolution of the issues presented by this case requires an understanding and analysis of the pertinent legislative scheme and must begin with the General Mining Law, 30 U.S.C. § 21 et seq. (2000) ("Mining Law"), a law that was enacted in 1872. The Mining Law provides: "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase . . . by citizens of the United States. . . ." 30 U.S.C. § 22. The Mining Law gives claimants the right to "a unique form of property." Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335 (1963). It gives any citizen the right to enter onto federal public lands,⁴ stake a claim on these lands, and obtain the exclusive right to extract the minerals thereon-all without payment to the United States and without acquiring title to the land itself. Union Oil Co. v. Smith, 249 U.S. 337, 348-49 (1919). Alternatively, the Mining Law gives a claimant the right to obtain title to the lands, by proving the location of a valuable mineral deposit on her mining claim, and paying a nominal fee ($5.00 per acre for certain claims, $2.50 per acre for others). 30 U.S.C. § 29-30, 37.

2. The Federal Land Policy and Management Act

Much changed in this nation in the 100 years following the Mining Law's 1872 enactment. Accordingly, in 1976, Congress enacted FLPMA to amend the Mining Law and reflect the nation's changed view toward land and minerals. It is this law that is primarily at issue here.

FLPMA establishes standards for BLM to regulate hardrock⁵ mining activities on the public lands. Such regulation is vital. BLM administers roughly one-fifth of the land mass of the United States⁶ and, while the surface area of the land physically disturbed by active mining is comparatively small, the impact of such mining is not. See Rocky Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734, 737 (10th Cir. 1982); Defs.' Ex. A at 1 (NRC Report). Mining activity emits vast quantities of toxic chemicals, including mercury, hydrogen, cyanide gas, arsenic, and heavy metals. The emission of such chemicals affects water quality, vegetation, wildlife, soil, air purity, and cultural resources. See Northwest Mining Ass'n v. Babbitt, 5 F. Supp.2d 9, 11 (D.D.C. 1998) (discussing hardrock mining's environmental consequences); Pls.' Ex. 2 at ¶¶ 10, 11 (Decl. of Randolph); Defs.' Ex. A at 27-30 (NRC Report). The emissions are such that the hardrock/metal mining industry was recently ranked the nation's leading emitter of toxic pollution. Pls.' Ex. 2 at ¶ 11 (Decl. of Randolph) (citing EPA's 1998 Toxic Release Inventory, issued May 11, 2000).

FLPMA thus attempts to balance two vital-but often competing-interests. On one hand, FLPMA recognizes the "need for domestic sources of minerals, food, timber, and fiber from the public lands," 43 U.S.C. § 1701(a)(12), and, on the other hand, FLPMA attempts to mitigate the devastating environmental consequences of hardrock mining, to "protect the quality of scientific, scenic, historical, ecological, environmental, air, and atmospheric, water resource, and archeological values," id. § 1701(a)(8). Put another way, FLPMA "represents an attempt by Congress to balance the use of the public lands by interests as diverse as the lands themselves." Watt, 696 F.2d at 738; accord Northwest Mining Ass'n, 5 F. Supp.2d at 11; see also NMA's Reply at 12.

The heart of FLPMA amends and supersedes the Mining Law to provide: "In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b) (emphasis added); see Watt, 696 F.2d at 738 n. 2; Defs.' Mot. for Summ. J. at 4 (recognizing that FLPMA amends the Mining Law). Also important for our purposes, FLPMA: (1) requires that the Secretary "manage the public lands under principles of multiple use and sustained yield," 43 U.S.C. § 1732(a); (2) encourages the "harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment," id. § 1702(c); and (3) "declares that it is the policy of the United States that . . . the United States receive fair market value for the use of the public lands and their resources unless otherwise provided for by statute," id. § 1701(a)(9).

3. The 1980, 2000, and 2001 Regulations

After FLPMA was enacted in 1976, BLM commenced a rulemaking to implement it. BLM issued its proposed rules on December 6, 1976, and finalized them on November 26, 1980. See 41 Fed. Reg. 53, 428 (Dec. 6, 1974); 45 Fed. Reg. 78, 902 (Nov. 26, 1980). These rules, commonly known as the "1980 Regulations," established "procedures to prevent unnecessary or undue degradation of Federal lands which may result from operations authorized by the mining laws." 45 Fed. Reg. at 78, 909-10 (Nov. 26, 1980). The 1980 Regulations defined "unnecessary or undue degradation," commonly referred to as "UUD," as being: (1) "surface disturbance greater than that which would normally result when an activity is being" conducted by "a prudent operator in usual, customary, and proficient operations"; (2) "failure to comply with applicable environmental protection statutes and regulations thereunder"; and (3) "[f]ailure to initiate and complete reasonable mitigation measures, including reclamation of disturbed areas or creation of a nuisance." Id. at 78, 910. These rules, formerly codified at 43 C.F.R. § 3809.0-5(k) (1999), governed the mining industry for quite some time.

In the 1990s, however, Interior conducted a comprehensive review of the 1980 Regulations, and on January 6, 1997, commenced a rulemaking to amend them. 62 Fed. Reg. 16, 177 (Apr. 4, 1997). During the rulemaking period, Congress intervened by passing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999. Pub. L. No. 105-277, 112 Stat. 2681 (1998). Pursuant to this Act, Congress directed the National Research Council ("NRC") of the National Academy of Sciences⁷ to review the adequacy of existing state and federal regulation of hardrock mining on federal lands, without regard to Interior's proposed amendments.⁸ Pub. L. No. 105-277, division A, § 101(e), 112 Stat. 2681 (§ 120(a) of Gen. Provisions, Dep't of Interior) (1999). Congress also prohibited Interior from promulgating a new rule until after publication of the NRC report. Id. at § 120(d). The NRC published its report, entitled Hardrock Mining on Federal Lands, in late September 1999 ("NRC Report"). In support of this publication, later that year, Congress provided that the rule to emerge from Interior's rulemaking process must not be "inconsistent with the recommendations contained in the National Research Council report." Fiscal Year 2000 Consolidated Appropriations Bill, Pub. L. No. 106-113, App. C, 113 Stat. 1501, 1501 A-210 (§ 357 of tit. III Gen. Provisions) (1999); see also Dep't of Interior & Related Agencies Appropriations Act, 2001 Pub. L. No. 106-291, 114 Stat. 922, 962 (2000).

Interior finally amended the 1980 Regulations in 2000. The 2000 Regulations, which were promulgated on November 21, 2000, and became effective in the final hours of the Clinton Administration, on January 20, 2001, adopted the NRC Report's recommendations-but differed in fundamental ways from the previous 1980 Regulations.⁹ 65 Fed. Reg. 69, 998 (Nov. 21, 2000). Most importantly, the 2000 Regulations replaced the 1980 Regulations' UUD "prudent operator" standard with a new and more restrictive UUD standard, commonly referred to as the "substantial irreparable harm" or "SIH" standard. 65 Fed. Reg. at 70, 115 (formerly codified at 43 C.F.R. § 3809.5(f) (2001)).

The "substantial irreparable harm" standard is so named because in the 2000 Regulations, for the first time, BLM stated that it would deny a plan of operations, i.e., a mining permit,¹⁰ if the plan failed to comply with performance standards or would result in "substantial irreparable harm" to a "significant" scientific, cultural, or environmental resource value of the public lands that could not be "effectively mitigated."¹¹ Id. at 70, 115. Thus, under the 2000...