Southeast Alaska Conservation Council, Inc. v. Watson

Decision Date31 January 1983
Docket NumberNos. 82-3206,82-3241,s. 82-3206
Citation697 F.2d 1305
Parties, 13 Envtl. L. Rep. 20,233 SOUTHEAST ALASKA CONSERVATION COUNCIL, INC., Plaintiff-Appellee, v. James WATSON, Forest Supervisor, United States Forest Service, et al., and Pacific Coast Molybdenum Co., and U.S. Borax & Chemical Corp., Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Maria A. Iizuka, Dept. of Justice, Washington, D.C., argued, for defendants-appellants; Clyde O. Martz, Davis, Graham & Stubbs, Denver, Colo., on brief.

Durwood J. Zaelke, Juneau, Alaska, for plaintiff-appellee.

On Appeal from the United States District Court for the District of Alaska.

Before PREGERSON, ALARCON and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Appellants challenge the district court's decision: (1) ordering preparation of a full environmental impact statement (EIS) addressing the proposed amendments to the 1980-83 plan of operations proposed by U.S. Borax & Chemical Corp. ("Borax") and Pacific Coast Molybdenum Co. ("PCM"); (2) enjoining Borax and PCM from mining activities pursuant to the amendments; and (3) enjoining the Forest Service from authorizing those mining activities.

The district court held that subsection 503(h)(3) of the Alaska National Interest Lands Conservation Act of 1980 requires an EIS for bulk sampling of the mineral deposit at Quartz Hill in the Tongass National Forest. The district court also found that the activities proposed by Borax and PCM in the 1980-83 amendments involve bulk sampling. Therefore, the district court concluded that a full EIS covering the 1980-83 amendment activities is required before approval of those activities by the Forest Service. We affirm the district court, 535 F.Supp. 653, 526 F.Supp. 202.


In 1974, Borax conducted a geochemical exploration in the Tongass National Forest in southeast Alaska. Borax discovered a large molybdenum deposit and obtained mining claims on the property. Borax conveyed its interest in the mining claims to PCM, an affiliated corporation, and contracted with PCM to manage the project.

The molybdenum deposit is located at Quartz Hill, a 149,000-acre area in an elevated valley of the Misty Fjords National Monument, which lies within the Tongass National Forest. "Misty Fjords is an essentially untouched 1.453 million-acre area ... representing nearly all of the wilderness features [and wildlife] found in southeast Alaska." S.Rep. No. 413, 96th Cong. 1st Sess. 208 (1979), reprinted in 1980 U.S.Code Cong. & Ad.News 5070, 5152. The Misty Fjords Monument also contains several salmon, trout, and crab fisheries. Id. at 5153.

The Misty Fjords Monument is administered by the Forest Service, an agency within the Department of Agriculture. The Forest Service has designated Borax and PCM's mining project as the Quartz Hill Molybdenum Project. Molybdenum is a metal used to strengthen steel in steel alloys. It is not rare or in short supply. See Wall St. J., Aug. 10, 1981, at 13, col. 1. Quartz Hill is estimated to be one of the largest known molybdenum deposits in the world. S.Rep. No. 413, 96th Cong. 1st Sess., at 209 (1979), reprinted in 1980 U.S.Code Cong. & Admin.News, at 5153. It contains an estimated 1.5 billion tons of the metal, or 10% of the world's known reserves.

Since the 1974 discovery at Quartz Hill, Borax has engaged in various exploration activities, including geologic and aerial topographic mapping; surveying; drilling 435 core holes; building and operating an employees' camp; and constructing helicopter pads, a crushing and sampling plant, and access roads.

In 1976, Borax submitted a plan of operations for Forest Service approval. In that plan, Borax proposed to expand its project by conducting bulk sampling and constructing a surface access road to transport the bulk sampling materials. The bulk sampling would be used to verify the extent and quality of the molybdenum deposit and to evaluate possible mining processes and alternatives for mine development. The Forest Service approved the plan in 1977, after preparing an environmental analysis and an EIS on both the bulk sampling and the access road.

On appeal by the Southeast Alaska Conservation Council, Inc. (SEACC), the Secretary of Agriculture overturned the approval in 1978, determining that access by helicopter, rather than by road, would be adequate for bulk sampling.

In 1979, Borax submitted another plan of operations, proposing further exploration, including bulk sampling with helicopter access to the site. The Forest Service approved continued exploratory drilling, but denied approval for bulk sampling. The Forest Service decided that any bulk sampling must be evaluated in a separate in-depth environmental analysis.

In January 1980, Borax's initial plan of operations for 1980-83 was approved by the Forest Service. The 1980-83 plan provided for continuation of activities authorized in previous operating plans, but it did not include bulk sampling or construction of an access road.

On December 2, 1980, President Carter signed the Alaska National Interest Lands Conservation Act of 1980, designating approximately 105 million acres of Alaska lands, including the Misty Fjords National Monument, as permanently protected federal lands. Alaska National Interest Lands Conservation Act of 1980, Pub.L. No. 96-487, 94 Stat. 2371 (codified in scattered sections of 16 and 43 U.S.C.) (hereinafter cited as ANILCA). Misty Fjords was closed to sale or harvest of timber and to operation of mining and mineral leasing. ANILCA exempted, however, those lands already held under valid mining claims. ANILCA Secs. 503(f)(1), (2); see S.Rep. No. 413, 96th Cong., 1st Sess., at 209, reprinted in 1980 U.S.Code Cong. & Ad.News, at 5153.

Congress specifically considered whether Borax should be permitted to develop its existing claim on Quartz Hill. The result, known as the "Borax Compromise," was embodied in ANILCA sections 503 and 505. ANILCA Secs. 503, 505.

After enactment of ANILCA, Borax submitted four proposed amendments to its already approved 1980-83 plan of operations (the 1980-83 amendments). The Forest Service appointed several experts to study the environmental effects of the proposed amendments. The experts prepared an "environmental assessment" pursuant to 36 C.F.R. Sec. 252.4(f). Based upon that assessment, the Forest Service made a "finding of no significant impact" on the environment, decided that no EIS was required, and approved the four proposed amendments. Amendments 1 and 2 added additional core drill hole locations to the existing plan. Amendments 3 and 4 provided for drilling more core holes, erecting additional campsite buildings, constructing an on-claim road connecting the campsite to work areas, opening two adits for underground exploration and sampling, clearing, and building "rock pads" (large level areas built into the side of a mountain for each adit), and removing 42 tons of crushed rock sample from the claims by helicopter for laboratory analysis.

SEACC appealed the Forest Service's approval of amendments 2, 3, and 4 to the Department of Agriculture. Meanwhile, Borax began work on the 1980-83 amendment activities. SEACC then brought suit in federal district court for an injunction, arguing that the approved 1980-83 amendment activities constitute bulk sampling as The district court held that ANILCA Sec. 503(h)(3) requires an EIS for bulk sampling. Southeast Alaska Conservation Council, Inc. v. Watson, 526 F.Supp. 202, 207-08 (D.Alaska 1981) (hereinafter referred to as SEACC I ). The court enjoined Borax from further activities under the 1980-83 amendments pending reconsideration by the Forest Service whether those amendment activities constituted bulk sampling. Id. at 209. The district court set forth guidelines for the Forest Service to use in deciding this factual issue. As a base point for comparison, the Forest Service was to use the descriptions of bulk sampling set forth in the 1977 EIS and in the proposed 1976 and 1979 plans of operations. Then, the Forest Service was to compare the 1980-83 amendment activities in terms of the magnitude of sampling, the length and size of the tunnels (which determine the amount of blasting and the total amount of rock excavated), the on-site crushing and sampling activity, and the overall objective of the proposed activities. Id. at 208-09.

previously proposed by Borax in 1976 and 1979 and rejected by the Agriculture Department and the Forest Service. SEACC contended that the Forest Service could not authorize bulk sampling until an EIS was prepared as required by section 503(h)(3) of ANILCA. SEACC also argued that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Sec. 4332(2)(C) (1976), requires an EIS before authorization of the amendments. Borax and the Forest Service argued that the proposed amendments do not constitute bulk sampling and that neither ANILCA nor NEPA requires an EIS.

On remand, the Forest Service concluded that the 1980-83 amendment activities did not constitute bulk sampling because the activities were distinguishable from the bulk sampling described in the 1977 EIS "in size, method, and purposes of operation." Forest Service Decision on Remand (Mar. 1, 1982), at 1. Borax then moved the district court to vacate the preliminary injunction.

In a second memorandum and order, the district court concluded that the Forest Service's decision was "arbitrary, capricious, and an abuse of discretion" because the Forest Service failed to consider all the relevant factors in making its determination. Southeast Alaska Conservation Council, Inc. v. Watson, 535 F.Supp. 653, 657 (D.Alaska 1982) (hereinafter cited as SEACC II ). The district court determined that a second remand to the Forest Service on the bulk sampling issue would frustrate the provisions of ANILCA section 503(h)(5) calling for expedited judicial review of...

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