Great Basin Resource Watch v. Bureau of Land Management
844 F.3d 1095
| 9th Cir. | 2016Background
- Eureka Moly proposed the Mt. Hope molybdenum open-pit mine in Eureka County, Nevada covering ~22,886 acres (8,355 acres disturbance), with an 80-year project life (32 years active mining; pit expected to form a 900-foot-deep lake).
- BLM determined the Project required an EIS; draft EIS issued Dec 2011, final EIS (FEIS) issued Oct 2012, and BLM issued a Record of Decision approving the Project in Nov 2012.
- Plaintiffs (Great Basin Resource Watch and Western Shoshone Defense Project) challenged the FEIS and approval under NEPA and also raised claims under FLPMA and Public Water Reserve No. 107 (PWR 107) regarding withdrawn lands and reserved water rights.
- Key NEPA criticisms: use of zero baseline values for several air pollutants without supporting rationale, inadequate cumulative air-impact analysis, and asserted deficiencies in mitigation analysis (pit-lake water quality, reclamation bonding, and water-quantity mitigation).
- EPA and local county raised separate concerns about air, water quantity, and long-term mitigation funding; BLM performed a post-FEIS “double check” analysis using distant monitoring data but did not provide it for public comment.
- District court entered judgment for BLM on summary judgment; Ninth Circuit reviewed de novo and found multiple NEPA deficiencies requiring vacatur and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Air-pollution baselines in FEIS | BLM unreasonably used zero baselines for several pollutants without data or reasoning | BLM/Eureka Moly relied on NDEP BAPC recommendation and subsequent Clean Air Act permitting; post-FEIS measured-data "double check" validates baselines | Held for Plaintiffs: FEIS inadequate — zero baselines unsupported by data or explanation; post-hoc analysis cannot cure EIS defect |
| Cumulative air impacts | FEIS fails to quantify or detail cumulative air impacts from Project plus other mines/activities | BLM points to other FEIS analyses and existing permits; cites related Ruby Hill analysis | Held for Plaintiffs: cumulative air-impact discussion insufficient and compounded by zero-baseline error; violates NEPA |
| Mitigation — pit-lake water quality | BLM failed to consider mitigation measures for long-term pit-lake water quality impacts and potential future users | BLM argues FEIS discusses monitoring and applicant-committed practices; impacts speculative and temporally remote | Held for Defendants on this subissue: BLM took a "hard look"; monitoring-led mitigation reasonable given low probability and temporal remoteness |
| Mitigation — reclamation bonding & long-term funding | Plaintiffs: EIS must discuss financial guarantees and long-term funding to evaluate mitigation effectiveness | BLM: bonding and bond amounts are regulatory/ministerial and need not be resolved in the EIS; Salazar supports limited NEPA role for bond updates | Held: Assuming discussion of funding is required, FEIS discussion was reasonably complete and did not violate NEPA |
| Mitigation — surface/ground water quantity replacement | Plaintiffs: FEIS fails to analyze where replacement water would come from and impacts of withdrawal | BLM/Eureka Moly: replacement would come from operator's existing rights; effect already analyzed | Court: Declined to resolve; error small and harmlessness not briefed; remanded with other NEPA defects rendering this issue unnecessary to decide |
| PWR 107 / FLPMA claims | Plaintiffs: Project violates lands withdrawn under PWR 107 and implies reserved federal water rights | BLM: position unclear; remand needed to address NEPA defects first and clarify agency position on whether springs are covered by PWR 107 | Held: Court declined to address PWR 107 and FLPMA claims; remanded to BLM to correct NEPA errors and clarify its stance on withdrawn springs |
Key Cases Cited
- Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989 (9th Cir.) (standard of review and NEPA hard-look requirement)
- Oregon Natural Desert Ass'n v. Jewell, 840 F.3d 562 (9th Cir.) (baseline estimates must be based on accurate information and defensible reasoning)
- Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505 (9th Cir.) (importance of establishing baseline conditions for NEPA analysis)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir.) (requirement to disclose data shortcomings in NEPA documents)
- Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir.) (distinction for post-approval ministerial bond updates not triggering NEPA)
- Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir.) (need for quantified or detailed cumulative-impact information)
- Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir.) (faulting BLM for lack of mine-specific cumulative air data)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. Supreme Court) (NEPA’s public-participation and informed-decisionmaking goals)
- Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir.) (examples of mitigation discussion for pit-lake impacts)