Tuesday, February 5, 2013
Feb 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17843. Appealed from the United States District Court for the District of Arizona. The Appeals Court explains that Appellants Center for Biological Diversity, Grand Canyon Trust, Sierra Club, Kaibab Band of Paiute Indians, and Havasupai Tribe contend that Appellees Ken Salazar, Secretary of the Interior, and the U.S. Bureau of Land Management (collectively, BLM) violated the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and its own regulations, by permitting Denison Mines Corp. and Denison Arizona Strip, LLC (collectively, Denison) to restart mining operations at the Arizona 1 Mine in 2009, after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988.
The district court denied the motion for preliminary injunction, holding that the 1988 plan of operations had not become ineffective and that BLM did not have to prepare a supplemental NEPA analysis prior to Denison recommencing mining operations. A panel of the Appeals Court affirmed the district court's denial of the preliminary injunction in an unpublished memorandum disposition.
After further proceedings in the district court, both parties moved for summary judgment. The district court granted summary judgment in favor of Appellees as to all of Appellants' claims, with one exception. The district court determined that BLM "provided no more than a 'cursory statement' of no cumulatively significant impacts in applying the categorical exclusion" when issuing Mohave County the "Free Use Permit" to remove gravel from Robinson Wash and remanded the issue to the BLM. A short time later, BLM provided further explanation as to its use of the categorical exclusion. The district court found that BLM had presented
a rational explanation for its use of the categorical exclusion. Accordingly, the district court concluded that use of the categorical exclusion as to the gravel permit was not arbitrary and capricious. The district court thus granted summary judgment on the categorical exclusion issue in favor of Appellees.
The Appeals Court concluded, "In sum, we conclude that BLM's invocation of the categorical exclusion was not arbitrary and capricious or otherwise not in accordance with law. Alaska Ctr. for Env't v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999). We thus affirm the district court's summary judgment against Appellants as to BLM's invocation of the categorical exclusion for issuance of the Robinson Wash gravel permit."
Access the complete opinion (click here). [#Land, #CA9]
Posted by JPMcJ at 4:24 PM