Tuesday, September 15, 2009

Center For Biological Diversity v. US Department of Interior

Sep 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16423. The Center for Biological Diversity (CBD), the Western Land Exchange Project, and the Sierra Club (collectively, Appellants) sued Asarco LLC (Asarco), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, BLM). Appellants contend that the BLM’s approval of a land exchange violated the National Environmental Policy Act (NEPA) and the Mining Law of 1872. If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872. If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872.

Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations (MPO) to the BLM. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed.

As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement (FEIS) pursuant to NEPA. In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision (ROD) approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences -- and the implications for the public interest -- would differ depending on whether the proposed land exchange occurs.

In a split decision, the Appeals Court ruled, "Because the BLM has conducted no comparative analysis, we hold that it has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was “arbitrary and capricious” in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving the actions of the BLM."

In a lengthy and harshly critical dissenting opinion, Justice Tallman said, "It has been said that the life of a canary in a coal mine can be described in three words: short but meaningful. So too apparently was the life of our decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). . . Having carefully reviewed and evaluated the record, I staunchly disagree with the majority’s conclusion . . .

"This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. . . In sum, the majority’s creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. . .

"Today’s opinion embodies the type of judicial meddling in agency action that we intended to put to rest in Lands Council. Its implications are far-reaching and severe. In order to achieve a particular result, my colleagues set the stage for a catastrophic collapse of the mine shaft timbers of deferential administrative law. For these reasons, I dissent. Has anyone seen the canary?"

Taylor McKinnon, public lands campaigns director with CBD said, “At stake in today’s decision were habitats for desert bighorn sheep, endangered desert tortoise habitat, and other threatened and endangered species. This is a victory for them -- a victory that will save lives.” CBD said the proposed exchange would have given Asarco 10,976 acres of public lands in exchange for 7,300 acres of the company’s private holdings, and would have facilitated the expansion of Asarco’s Ray Mine, an open-pit copper mine located 65 miles east of Phoenix and 50 miles north of Tucson. By gaining private ownership of the land, Asarco would no longer be subject to Federal planning, reclamation, and bonding requirements designed to minimize and mitigate the environmental impacts of hard-rock mining operations.

Access the complete opinion and dissent (
click here). Access a release from CBD (click here).