Center for Biological Diversity et al v. Salazar et al

Filing 184

ORDER - IT IS ORDERED: 1. Summary judgment is granted in favor of Defendants and against Plaintiffs with respect to Claim Four of the Third Amended Complaint. 2. The Clerk is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 10/7/11. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Center for Biological Diversity; Grand
Canyon Trust; Sierra Club; Kaibab Band of
Paiute Indians of the Kaibab Indian
Reservation; and the Havasupai Tribe,

11
12
13
14
15

No. 09-08207-PHX-DGC
ORDER

Plaintiffs,
vs.
Ken Salazar, Secretary of the Interior;
United States Bureau of Land Management;
Denison Arizona Strip, LLC; and Denison
Mines (USA) Corp.,
Defendants.

16
17
18

This case arises from the renewed operation of the Arizona 1 Mine, a uranium

19

mine near Grand Canyon National Park.

20

Secretary of the Interior Ken Salazar and the U.S. Bureau of Land Management

21

(collectively “BLM”) violated mining and environmental laws by allowing the mine to

22

resume operations, including the National Environmental Policy Act, 42 U.S.C. § 4321,

23

et seq. (NEPA) and the Federal Land Policy and Management Act, 43 U.S.C. § 1732(b)

24

(FLPMA).

Plaintiffs allege that Federal Defendants

25

Plaintiffs alleged five claims in the Third Amended Complaint: (1) BLM violated

26

the FLPMA and 1872 Mining Law by failing to approve a new plan of operations for

27

uranium exploration and mining activities at the Arizona 1 Mine; (2) alternatively, BLM

28

1

failed to prepare a supplement to the 1988 Environmental Analysis to consider new

2

circumstances and information relevant to environmental concerns related to the Arizona

3

1 Mine, in violation of NEPA; (3) BLM failed to prevent the unnecessary and undue

4

degradation of public lands; (4) BLM violated NEPA by relying on a categorical

5

exclusion for the 2008 free use permit issued to Mohave County to mine and extract

6

gravel from Robinson Wash; and (5) BLM violated NEPA in making its 2008 Bonding

7

Decision for the Arizona 1 Mine. Doc. 126.

8

On May 27, 2011, the Court granted summary judgment in favor of Defendants

9

and against Plaintiffs on Claims One, Two, Three, and Five. Doc. 163. The Court

10

remanded the categorical exclusion issue in Claim Four to BLM for further consideration.

11

See Fed. R. Civ. P. 56(e). The Court gave BLM until June 24, 2011, to revise its decision

12

to apply a categorical exclusion to the free use permit. Doc. 163.

13

In 2008, Mohave County applied for a free use permit to excavate gravel from

14

Robinson Wash for road maintenance purposes. Doc. 134, Exhibit 45, at 26. In a NEPA

15

document dated April 24, 2008 (Doc. 134, Exhibit 49, at 90-95), BLM determined that

16

the excavation was “categorically excluded” from further NEPA analysis because it was

17

limited to a five-acre area and no more than 50,000 cubic yards of gravel. Doc. 134,

18

Exhibit 49, at 92. BLM also determined that the categorical exclusion was appropriate

19

because there were “no extraordinary circumstances potentially having effects that may

20

significantly affect the environment.” Id. at 93. Denison, under contract with Mohave

21

County, uses the gravel from Robinson Wash to maintain Mt. Trumbell Road, an access

22

route to the Arizona 1 mine.

23

As required by the Court, BLM filed on June 24, 2011 an explanation for its

24

determination that the free use permit was categorically excluded. Doc. 165-1. After a

25

telephone conference on the record with the parties, the Court entered an order on July

26

22, 2011 (Doc. 173) permitting Plaintiffs to supplement the Third Amended Complaint to

27

include BLM’s June 24, 2011 explanation as part of Claim Four. Doc. 175, at 28, ¶ 81A.

28

The parties’ previous motions for summary judgment on Claim Four were deemed to
-2-

1

apply to Claim Four as supplemented. Doc. 173. Plaintiffs filed the supplemental

2

complaint on July 22, 2011. Doc. 175. BLM filed the administrative record with respect

3

to the June 24, 2011 explanation. Doc. 176.

4

Pursuant to the Court’s July 22, 2011 order, the parties filed simultaneous

5

memoranda addressing their respective positions on (a) the merits of Claim Four in light

6

of BLM’s June 24, 2011 explanation and Plaintiffs’ supplementation of Claim Four, and

7

(b) any remedies the Court should impose if it grants summary judgment in favor of

8

Plaintiffs on Claim Four. Docs. 178, 179, 180. The parties then filed simultaneous

9

responses. Docs. 181, 182, 183.

10

Claim Four as supplemented has been fully briefed. Docs. 178-183. The Court

11

does not deem that oral argument is necessary. For the reasons below, the Court grants

12

summary judgment on Claim Four in favor of Defendants and against Plaintiffs.

13

I.

Defendants Have Adequately Explained the Categorical Exclusion.

14

Plaintiffs do not challenge the categorical exclusion itself, but instead argue that

15

BLM’s June 24, 2011 explanation for the categorical exclusion is inconsistent with

16

NEPA’s requirement of a comprehensive assessment of cumulative impacts. Doc. 175, at

17

28, ¶ 81A; 40 C.F.R. § 1508.25(c). Actions which do not individually or cumulatively

18

have a significant effect on the environment fall within categorical exclusions for which

19

“neither an environmental assessment nor an environmental impact statement is

20

required.” 40 C.F.R. § 1508.4. Further NEPA review is not required for categorical

21

exclusions unless there are “extraordinary circumstances” related to the proposed action.

22

Id. See also Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 (9th Cir.

23

1999). Any regulation adopting a categorical exclusion must “provide for extraordinary

24

circumstances in which a normally excluded action may have a significant environmental

25

effect.” 40 C.F.R. § 1508.4; Alaska Ctr., 189 F.3d at 859; Jones v. Gordon, 792 F.2d

26

821, 827 (9th Cir. 1986). BLM identifies one such extraordinary circumstance in its

27

NEPA Handbook: a proposed action having “a direct relationship to other actions with

28

individually insignificant but cumulatively significant environmental impacts.”
-3-

1

Doc. 132, Exhibit 26, at 93 (emphasis added). Because the gravel extraction authorized

2

by the free use permit falls under a categorical exclusion, the relevant question is whether

3

this action is an “extraordinary circumstance” for which further NEPA review is required.

4

In its initial NEPA document pertaining to the free use permit (Doc. 134,

5

Exhibit 49), BLM stated that “there are no extraordinary circumstances potentially having

6

effects that may significantly affect the environment.” One of the factors reviewed on

7

BLM’s extraordinary circumstances checklist was whether the proposed action had a

8

“direct relationship to other actions with individually insignificant, but cumulatively

9

significant, environmental effects.” The NEPA document provided only a one-word

10

response: “No.” Doc. 134, Exhibit 49, Attachment 1.

11

When an agency applies a categorical exclusion and proceeds with an action

12

without preparing an environmental analysis (EA) or environmental impact statement

13

(EIS), the agency must adequately explain its decision. Doc. 163, at 23; Alaska Ctr., 189

14

F.3d at 859. “An agency cannot avoid its statutory responsibilities under NEPA merely

15

by asserting that an activity it wishes to pursue will have an insignificant effect on the

16

environment.” Alaska Ctr., 189 F.3d at 859 (quoting Jones v. Gordon, 792 F.2d 821, 827

17

(9th Cir. 1986)). In its May 27, 2011 order, the Court found that BLM’s unexplained

18

conclusion that the free use permit had no “cumulatively significant” environmental

19

effects was insufficient to support its application of the categorical exclusion. Doc. 163,

20

at 23 (citing California v. U.S. Dep’t of Agric., 575 F.3d 999, 1017-18 (9th Cir. 2009)).

21

Following the Court’s remand, BLM provided detailed rationale for its finding of

22

no significant cumulative effects with respect to the free use permit. Doc. 165-1. BLM

23

explained that Robinson Wash had previously been used as a gravel source for road

24

repairs and maintenance. Doc. 165-1. Rain naturally replenished the gravel removed.

25

Id. The gravel would be used for previously-approved maintenance of Mt. Trumbell

26

Road “within its existing footprint in accordance with BLM’s 1986 Decision to issue a

27

right-of-way (“ROW”) to Mohave County.” Id.

28

Further, BLM noted that “Mohave County has used various sources of gravel over
-4-

1

the years for the repairs and maintenance, including a location in Robinson Wash.” Id.

2

Because maintaining Mt. Trumbell Road does not depend on the availability of gravel

3

from Robinson Wash, BLM did not find a direct relationship between the free use permit

4

and road maintenance. Id. BLM also found no direct relationship between the free use

5

permit and the mining operations within the Arizona Strip because BLM approved

6

mining operations at Arizona 1 Mine in 1988 and its approval of the free use permit did

7

not occur until 2008. Doc. 180, at 5. Because there is no direct relationship between the

8

action authorized by the free use permit and the road maintenance and mining activities,

9

BLM concluded that the free use permit was not an “extraordinary circumstance”

10

requiring further NEPA analysis.

11

In its explanation, BLM referred to a prior EA analyzing the Arizona 1 Mine’s

12

Plan of Operations in support of its conclusion that the mining operations and the free use

13

permit are not directly related. Doc. 165-1. Plaintiffs argue that NEPA regulations for

14

tiering and incorporation by reference are limited to EISs and that Defendants may not

15

rely on prior EAs in its analysis.

16

discretionary, not mandatory. 40 C.F.R. § 1502.20 (“Agencies are encouraged to tier

17

their environmental impact statements to eliminate repetitive discussions of the same

18

issues.”) (emphasis added). Further, the statute providing for incorporation by reference

19

pertains to the preparation of environmental impact statements. 40 C.F.R. § 1502.21

20

(“Agencies shall incorporate material into an environmental impact statement by

21

reference when the effect will be to cut down on bulk without impeding agency and

22

public review of the action.”). BML’s June 24, 2011 explanation was not an EIS, nor

23

was one required because of the categorical exclusion.

24

incorporation by reference statutes do not preclude BML from referencing prior EAs.

25

II.

But the relevant statute governing tiering is

Thus, the tiering and

Defendants’ Categorical Exclusion is Entitled to Deference.

26

Courts review an agency’s determination that an action falls within a categorical

27

exclusion under the Administrative Procedure Act’s “arbitrary and capricious” standard.

28

Alaska Ctr., 189 F.3d at 857. “To determine whether an agency action is arbitrary or
-5-

1

capricious, a court must consider ‘whether the decision was based on a consideration of

2

the relevant factors and whether there has been a clear error of judgment.’” Id. at 859

3

(quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)). An

4

agency’s factual determination of whether the environmental impacts are significant or

5

not “implicates substantial agency expertise and is entitled to deference.” Id. See also

6

Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1992) (applying a deferential

7

standard when reviewing agency determinations under NEPA).

8

BLM considered relevant factors in its analysis of the free use permit. The CEQ

9

regulations provide certain factors that should be considered in determining whether an

10

action will significantly effect the environment, including (1) the degree to which the

11

proposed action affects public health or safety, (2) the degree to which the effects will be

12

highly controversial, and (3) whether the action is related to other action which has

13

individually insignificant, but cumulatively significant, impacts. 40 C.F.R. § 1508.27(b).

14

These were among the factors that BLM addressed in its NEPA document. Doc. 134,

15

Exhibit 49, Attachment 1.

16

The Court finds that BLM’s June 24, 2011 attachment articulates a rational

17

connection between the facts surrounding the extraction of gravel from Robinson Wash

18

and its conclusion that there are no extraordinary circumstances warranting the

19

preparation of an EA or EIS. See, e.g., Alaska Ctr., 189 F.3d, at 859 (“[A]s long as there

20

is a rational connection between the facts and the conclusions made, [the agency] has not

21

acted arbitrarily.”). Applying the deferential standard of review that courts employ when

22

reviewing factual conclusions within an agency’s expertise, the Court concludes that

23

BLM’s June 24, 2011 explanation was not arbitrary or capricious and that it properly

24

determined that there was no extraordinary circumstance requiring further NEPA

25

analysis.

26

IT IS ORDERED:

27

1. Summary judgment is granted in favor of Defendants and against Plaintiffs

28

with respect to Claim Four of the Third Amended Complaint.
-6-

1

2. The Clerk is directed to terminate this action.

2

Dated this 7th day of October, 2011.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-