Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143

Background

Simplot operates the Smoky Canyon Mine in Caribou National Forest to extract phosphate ore from panels A–E (5,000 acres) with overburden containing selenium pollution; current operations trigger CERCLA cleanup actions.
To extend the mine life, Simplot seeks to mine adjacent federal leases (panels F and G) and receive approvals from BLM and the Forest Service (special use permits) for land on federal public and forest system lands.
DEIS in 2005 and FEIS in 2007 analyzed the expansion, concluding it would not violate water quality standards when combined with remediation of existing pollution and the proposed Dinwoody cover system for controls.
FEIS identified Pole Canyon and Panel E as major current selenium sources; agencies stated remediation there plus the cover would offset future selenium pollution from expansion.
Simplot used O'Kane Consultants to test cover performance; concerns about seasonal snowmelt effects were raised by Dr. Carlson, FS groundwater lead, and reviewed by a technical review team; concerns were addressed but not with new modeling.
District court granted summary judgment for agencies; Ninth Circuit affirmed, holding agencies' actions were not arbitrary or capricious under NEPA, CWA, and NFMA; dissent argued failures in data and modeling justify reversal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
NEPA hard look and disclosure requirements satisfied?	Greater Yellowstone argues agencies failed to conduct a hard look and disclose uncertainties.	The agencies thoroughly evaluated modeling, acknowledged uncertainties, and required post-approval testing.	No; agencies satisfied NEPA hard look and disclosure requirements.
CWA/NFMA compliance given remediation plan?	Remediation of Pole Canyon and Panel E insufficient to offset future pollution.	Remediation identified as major sources and sufficient to offset expansion impacts.	No; agencies' conclusion rational and within statutory/regulatory framework.
§401 certification required for the project?	Discharges from the pits and cover constitute point sources needing §401 certification.	Pits under cover are nonpoint sources; only stormwater drainage is a point source with §401 certification.	No; §401 certification not required for this project.
Adequacy of using existing sources to offset future pollution?	Incomplete identification of existing pollution sources undermines offset assessment.	Remediation of major existing sources addressed in FEIS and supported by modeling.	No; agencies properly identified offsets and based on rational conclusions.
What about reliance on modeling and seasonal variation concerns?	Modeling shortcuts and lack of monthly output data undermine reliability.	Experts reviewed modeling; seasonal variations accounted for in inputs/long-term results; future testing ensures validity.	No; modeling deemed adequate and consistent with NEPA requirements.

Key Cases Cited

Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir. 2001) (agency discretion to rely on expert opinions when resolving conflicts)
Marsh v. Or. Natural Res. Council, 490 U.S. 360 (U.S. 1989) (agency deference to experts in technical matters)
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (NEPA review and hard look standard (en banc discussion))
Western Watersheds Project v. Kraayenbrink, 620 F.3d 1187 (9th Cir. 2010) (NEPA hard look; dangers when agencies ignore expert concerns)
Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (NEPA uncertainties and disclosure requirements)
Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) (NEPA's need to consider cumulative impacts and not defer to future analysis)
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (U.S. 1983) (NEPA's requirement to consider environmental concerns in decisionmaking)
McNair, Lands Council v. Powell cited, 537 F.3d 981 (9th Cir. 2008) (reaffirmation of NEPA’s hard look standard)
Motor Vehicle Mfrs. Ass'n v. State Farm Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review standard for agency action)
Port of Seattle v. FERC, 499 F.3d 1016 (9th Cir. 2010) (agency decision review—reasoned explanation with data)