Center for Biological Diversit v. Ken Salazar
706 F.3d 1085
| 9th Cir. | 2013Background
- Arizona 1 Mine is a uranium mine in Mohave County, 35 miles southwest of Fredonia, with a plan of operations approved in 1988 that allowed interim management if operations paused; mining ceased in 1992 and the site remained under interim management with ongoing inspections by BLM.
- Denison Mines Corp. acquired the Arizona 1 Mine; in 2007 Denison agreed to restart mining under the 1988 plan, updating permits, bonds, and access rights prior to recommencement.
- BLM updated Denison’s reclamation bond in 2010 to reflect current costs under 43 C.F.R. § 3809.505, after Denison submitted a revised bond estimate that BLM accepted as overestimation.
- BLM issued a Gravel/Robinson Wash Free Use Permit to Mohave County (through Denison as agent) under a categorical exclusion for small-scale mineral material disposal, without a full NEPA review.
- Appellants challenged BLM’s actions under NEPA, FLPMA, and 43 C.F.R. § 3809, arguing the 1988 plan became ineffective after long inactivity and that NEPA supplementation and other analyses were required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prior preliminary injunction decision became law of the case | Appellants contend law of the case governs. | Salazar/BLM argue no law-of-the-case effect on merits. | Prior decision did not create law of the case; merits proceed. |
| Whether the 1988 plan remained effective during inactivity | Cites 3809.423 making plan ineffective after cessation. | Regulations read as a whole allow interim management during inactivity. | BLM’s resumption under 1988 plan was not arbitrary or unlawful. |
| Whether NEPA required supplementation of the 1988 EA | Supplements required due to stale analysis. | No ongoing major Federal action after approval; actions like gravel permit/ bond do not trigger supplementation. | No NEPA supplementation required for the 1988 plan. |
| Whether updating the reclamation bond triggered NEPA analysis | Bond update constitutes approval of a project requiring NEPA. | Bond update is post-approval monitoring, not an NEPA-triggering action. | Bond update not subject to NEPA analysis. |
| Whether the Robinson Wash gravel permit fell under a categorical exclusion without improper analysis | BLM failed to analyze indirect/cumulative/connected effects under 1508.25. | Categorical exclusion applied; extraordinary circumstances analyzed; no significant cumulative effects. | BLM’s use of the categorical exclusion was proper; no error. |
Key Cases Cited
- Norton v. South Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (supplemental NEPA review standards for major federal actions)
- Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) (agency actions and NEPA timing considerations)
- Cold Mountain v. Garber, 375 F.3d 884 (9th Cir. 2004) (NEPA supplementation and major federal action timing)
- Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Dept. of Agric., 499 F.3d 1108 (9th Cir. 2007) (law of the case and preliminary injunction reasoning)
- Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750 (9th Cir. 1982) (preliminary injunction review scope)
- Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (U.S. 2007) (agency interpretations of own regulations are controlling)
- Boeing Co. v. United States, 258 F.3d 958 (9th Cir. 2001) (construe regulations to give effect to all provisions)
- Alaska Center for Environmental Leadership v. U.S. Forest Service, 189 F.3d 851 (9th Cir. 1999) (NEPA categorical exclusions standing)