Okanogan Highlands Alliance v. Confederated Tribes of the Colville Reservation, Nos. 99-35537

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: GRABER
• Citation: 236 F.3d 468
• Parties: (9th Cir. 2000) OKANOGAN HIGHLANDS ALLIANCE; WASHINGTON ENVIRONMENTAL COUNCIL; COLVILLE INDIAN ENVIRONMENTAL PROTECTION ALLIANCE; KETTLE RANGE CONSERVATION GROUP, Plaintiffs, and CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiff-intervenor Appellant, v. ROBERT WILLIAMS, Regional Forester; RICHARD A. FERRARO, Deputy Regional Forester; UNITED STATES FOREST SERVICE; SAM GEHR, Supervisor of the Okanogan National Forest, Defendants-Appellees, and BATTLE MOUNTAIN GOLD COMPANY, Defendant-intervenor-Appellee. OKANOGAN HIGHLANDS ALLIANCE; WASHINGTON ENVIRONMENTAL COUNCIL; COLVILLE INDIAN ENVIRONMENTAL PROTECTION ALLIANCE; KETTLE RANGE CONSERVATION GROUP, Plaintiffs-Appellants, and CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiff-intervenor, v. ROBERT WILLIAMS, Regional Forester; RICHARD A. FERRARO, Deputy Regional Forester; UNITED STATES FOREST SERVICE; SAM GEHR, Supervisor of the Okanogan National Forest, Defendants-Appellees, and BATTLE MOUNTAIN GOLD COMPANY, Defendant-intervenor Appellee
• Decision Date: 29 December 2000
• Docket Number: 99-35538,Nos. 99-35537

Page 468

236 F.3d 468 (9th Cir. 2000) OKANOGAN HIGHLANDS ALLIANCE; WASHINGTON ENVIRONMENTAL COUNCIL; COLVILLE INDIAN ENVIRONMENTAL PROTECTION ALLIANCE; KETTLE RANGE CONSERVATION GROUP, Plaintiffs, and CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiff-intervenor Appellant,
v.
ROBERT WILLIAMS, Regional Forester; RICHARD A. FERRARO, Deputy Regional Forester; UNITED STATES FOREST SERVICE; SAM GEHR, Supervisor of the Okanogan National Forest, Defendants-Appellees, and BATTLE MOUNTAIN GOLD COMPANY, Defendant-intervenor-Appellee. OKANOGAN HIGHLANDS ALLIANCE; WASHINGTON ENVIRONMENTAL COUNCIL; COLVILLE INDIAN ENVIRONMENTAL PROTECTION ALLIANCE; KETTLE RANGE CONSERVATION GROUP, Plaintiffs-Appellants, and CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiff-intervenor,
v.
ROBERT WILLIAMS, Regional Forester; RICHARD A. FERRARO, Deputy Regional Forester; UNITED STATES FOREST SERVICE; SAM GEHR, Supervisor of the Okanogan National Forest, Defendants-Appellees, and BATTLE MOUNTAIN GOLD COMPANY, Defendant-intervenor Appellee. Nos. 99-35537, 99-35538 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 13, 2000
Filed December 29, 2000

Page 469

Copyrighted Material Omitted

Page 470

Roger Flynn, Western Mining Action Project, Boulder, Colorado, for the plaintiffs-appellants.

Stephen H. Suagee, Office of the Reservation Attorney, Nespelem, Washington, for the plaintiff-intervenor-appellant.

Ethan G. Shenkman, Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Michael J. Malmquist and Jim Butler, Parsons Behle & Latimer, Salt Lake City, Utah, for the defendant-intervenorappellee.

Appeals from the United States District Court for the District of Oregon John Jelderks, Magistrate Judge, Presiding. D.C. No.CV-97-00806-JE D.C. No. CV-97-00806-MM

Before: Cynthia Holcomb Hall, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:

Plaintiffs Okanogan Highlands Alliance (OHA) and the Confederated Tribes of the Colville Reservation (Colville) challenge the adequacy of the Final Environmental Impact Statement (EIS) and Record of Decision (ROD) prepared by the United States Forest Service (Forest Service). ¹ Plaintiffs make three arguments: (1) The district court and the Regional Forester considered documents that were not part of the administrative record, in violation of the Administrative Procedure Act (APA), 5 U.S.C. 551-706; (2) the EIS contains an inadequate discussion of necessary mitigation measures, in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370d, and the APA; and (3) the Forest Service failed to select the most environmentally preferable, but still profitable, project alternative that it considered, in violation of 16 U.S.C. 478 and 551 (the Organic Act). Colville also contends that the Forest Service violated the trust obligations that federal agencies owe to Native American tribes. We affirm the district court's ruling that the Forest Service did not violate NEPA, the APA, the Organic Act, or its trust obligations.

FACTUAL AND PROCEDURAL HISTORY

In 1992, Battle Mountain Gold Company (BMG) submitted a proposed plan of operations to the Forest Service, the Bureau of Land Management (BLM), and the Washington Department of Natural Resources for the development, operation, and eventual closure of a gold mine in an area on and around Buckhorn Mountain in Washington. We will refer to this proposal as "the Project." BMG proposed to process about 3,000 tons of ore and handle an average of 34,000 tons of waste rock per

Page 471

day for eight years. BMG expected to remove about 180,000 ounces of gold per year. The project would "directly disturb" 787 acres of land, of which 59 percent (469 acres) is administered by the Forest Service, 24 percent (189 acres) is administered by the BLM, 2 percent (13 acres) is administered by the Washington Department of Natural Resources, and 15 percent (116 acres) is owned by private parties.

The Forest Service issued an EIS for the Project. The Forest Service discussed seven project alternatives in the EIS, including a "no-action" alternative. Relevant to this appeal are Alternatives B and C. In Alternative C, the Forest Service proposed that ore be extracted by underground methods only. The Forest Service determined that Alternative C was "the most environmentally preferable of the action alternatives."

Alternative B, a version of BMG's original submission, proposed to operate the mine 24 hours a day, seven days a week, for eight years, with an added year at the start for construction and another at the end for reclamation. The Forest Service expected the operation to produce a mine pit that would fill with water, creating a lake that would cover 40 acres and be up to 350 feet deep. The operation would remove about 105 million tons of rock, and gold would be extracted from the rock through a cyanide vat leach process. An average of 17,900 cubic yards of waste rock per day would be placed in two permanent waste-rock disposal areas.

The Forest Service, in its ROD, approved Alternative B. Alternative C was not selected "because of substantial impacts to mine economics, a reduction in mineral resource recovery, and because environmental effects associated with surface mining could be addressed fully or in part by reasonable reclamation, mitigation or compensatory requirements."

Colville and OHA appealed the selection to the Regional Forester, but the appeal was denied. OHA challenged the EIS and ROD in federal district court, pursuant to the APA, naming the Forest Service and its officials as defendants. Colville intervened as a plaintiff, and BMG intervened as a defendant. Plaintiffs and Defendants all filed motions for summary judgment.

The magistrate judge granted Defendants' motions. ² The court made the following rulings that are relevant to this appeal: (1) the Forest Service's discussion of mitigating measures in the EIS conformed to NEPA and was neither arbitrary nor capricious; (2) the Forest Service's selection of Alternative B did not violate the Organic Act's requirement that the Forest Service's decisions should "minimize adverse environmental impacts"; and (3) the Forest Service did not violate the trust obligations that it owed to Colville. This timely appeal ensued.

STANDARDS OF REVIEW

We review de novo the district court's determination, on summary judgment, that the EIS satisfied NEPA. City of Carmel-by-the-Sea v. United States Dep't of Transp. , 123 F.3d 1142, 1150 (9th Cir. 1997). In a challenge under the APA, we must determine whether the Forest Service's actions were "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (challenging, under the APA, an EIS's discussion of mitigating measures); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 573 (9th Cir. 1998) (challenging, under the APA, an agency's submission of a ROD as violating the trust responsibility owed to a Native American tribe).

DISCUSSION

A. The Administrative Record

Plaintiffs contend that the Regional Forester and the district court relied on

Page 472

documents that were not part of the administrative record in making their decisions upholding the validity of the EIS and ROD. In particular, Plaintiffs refer to an April 1997 economic analysis of Alternative C and a March 1997 stream-flow mitigation plan, both prepared by BMG and submitted to the Regional Forester as part of the appeal of the January 1997 ROD (collectively, the "post-ROD documents"). We have reviewed the decisions of the district court and the Regional Forester and hold that neither the district court nor the Regional Forester relied on any materials outside the administrative record in their decisions.

It is undisputed that BMG submitted post-ROD documents to the Regional Forester. A remand would be necessary, however, only if the agency's "journey outside the record worked substantial prejudice." Marathon Oil Co. v. EPA, 564 F.2d 1253, 1265 (9th Cir. 1977) (citation and internal quotation marks omitted). We need not decide whether "substantial prejudice" existed in this case, because the Regional Forester took no "journey outside the record" at all.

The Regional Forester stated in his decision that he had reviewed the record provided by the Forest Supervisor, "including his review of new information presented in the appeals." The Regional Forester then responded to each of the issues raised by the appealing parties, but did not base his conclusions that the EIS and ROD were adequate on the data found in either of the post-ROD documents. The Regional Forester did note merely that the 1997 mitigation plan exists. In his response to Plaintiffs' concern that the ROD was issued before a determination had been made that water-quality standards could be met, the Forester noted that the EIS requires the proponent "to submit a mitigation plan consistent with the permitting requirements to obtain a [National Pollutant Discharge Elimination System] permit. Interested party comments from BMG indicate that a detailed water rights mitigation plan has been submitted to [the Washington Department of Ecology]."

We do not believe that BMG's comment informing the Forester that it had taken steps to obtain a state permit, and the Forester's recognition of that fact, can be considered a "journey outside the record." The "appeal record," which consists of the documents "upon which review of an appeal is conducted," is to include written comments by interested parties. 36 C.F.R. 215.2. The Forester simply acknowledged BMG's written comment that a plan existed; he did not use the plan itself or the data therein as support for any of the EIS's or ROD's underlying conclusions.

Our review of the district court's decision also belies Plaintiffs' argument that the...