Idaho Conservation League et al v. Lannom et al

Filing 33

MEMORANDUM DECISION AND ORDER The Court will grant in part plaintiffs' motion for summary judgment. The Court will prepare a separate Judgment as required by Rule 58(a). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO CONSERVATION LEAGUE,
THE WILDERNESS SOCIETY,
EARTHWORKS, FRIENDS OF THE
CLEARWATER, WILDERNESS
WATCH,

Case No. 1:15-cv-246-BLW
MEMORANDUM DECISION

Plaintiffs,
v.

LANNOM, KEITH B., Payette National
Forest Supervisor, and U.S. FOREST
SERVICE,
Defendants.

INTRODUCTION
The Court has before it cross-motions for summary judgment filed by plaintiffs,
defendants, and intervenors. The Court heard oral argument on June 14, 2016, and took
the motions under advisement. For the reasons explained below, the Court will grant in
part and deny in part each of the motions.
SUMMARY
This case examines how much mining should be allowed in a wilderness area.
Specifically, the Court is reviewing the Forest Service’s decision to allow drilling, road
reconstruction, and the use of motorized vehicles and heavy equipment at the Golden
Hand Mine in the Frank Church - River of No Return Wilderness Area.
Memorandum Decision – Page 1

Mining on federal lands is governed by the 1872 Mining Law. It declares that “all
valuable mineral deposits” on federal lands are “free and open to exploration and
purchase.” Nearly 100 years later, Congress passed the Wilderness Act for the purpose
of setting aside federal lands “where the earth and its community of life are untrammeled
by man, where man himself is a visitor who does not remain.” The Frank Church
Wilderness was created pursuant to the Wilderness Act.
The conflict between these laws is obvious – mining will never be compatible with
wilderness. Yet Congress has decreed that they must co-exist at times. The proponents
of the Wilderness Act could not convince Congress to completely ban all mining in
wilderness areas. Instead, a compromise was reached that allowed valid mining claims
made prior to wilderness designation to continue.
The Golden Hand mine was discovered in 1889. It has not been worked for
decades, but its current owner – AIMMCO – wants to reopen it to search for gold and
silver. Before it can do so, however, AIMMCO must first prove to the Interior
Department that it has valid mining claims on the mine. To prove validity, AIMMCO
must show that the claims contain a marketable amount of mineral. And to obtain the
necessary proof, AIMMCO must be allowed to do assessment work including some
drilling, trenching, and road reconstruction.
AIMMCO submitted a plan to do that assessment work, and the Forest Service has
approved certain aspects of that plan. The plaintiffs challenge that approval, claiming
that the Forest Service favored mineral extraction over wilderness protection.

Memorandum Decision – Page 2

In this decision, the Court holds that the Forest Service did not reveal its analysis
in reaching some conclusions, may have relied on information provided in confidence not
available to the public for review, and made an error in reaching one conclusion that
might have affected the result. The Court will declare the Forest Service’s approval of
AIMMCO’s mining plan to be invalid, and will remand the matter back to the Forest
Service to correct these errors.
LITIGATION BACKGROUND
This suit concerns two lode mining claims located in the Payette National Forest
within the boundaries of the Frank Church - River of No Return Wilderness. The
plaintiffs challenge the Forest Service’s decision to authorize assessment work on two
mining claims – the Golden Hand Claims 1 & 2 – owned by American Independence
Mines and Minerals Co (AIMMCO). The project approved by the Forest Service
authorizes AIMMCO to collect subsurface geological information in preparation for a
new validity hearing on these two mining claims in the Wilderness Area.
The two claims were discovered near the turn of the century by James M. Hand.
Early on, an adit – a horizontal tunnel – was dug on Claim 1, and became known as the
Ella Portal. The entrance to this tunnel later collapsed in the 1920s or early 1930s. In
1934, a prominent Idaho mining geologist, Robert N. Bell, studied the Golden Hand
claims and prepared a report examining the potential for mining valuable minerals on the
claims. In that report, Bell recounted statements Hand made to him about the gold taken
out of the tunnel. On the basis of those statements, and his studies, Bell concluded that
“serious attention” should be given to renewed mining at the Ella Portal.
Memorandum Decision – Page 3

A year later, in 1935, Bell took 40 samples from the Ella Portal tunnel that “amply
confirm[ed] my . . . forecast . . . of a definite prospect of a mass production ore deposit.”
There is no record, however, of any further mining being done in the Ella Portal, and the
tunnel’s entrance remains blocked to this day. No production on any of the Golden Hand
claims has been reported since 1941.
AIMMCO’s ownership1 of these two claims is affected by the Wilderness Act,
passed by Congress in 1964. That Act was designed to set aside federal lands as
“wilderness areas” that would be “untrammeled by man, where man himself is a visitor
who does not remain.” See 16 U.S.C. § 1131(c). Under the Act, Congress would
designate federal lands for inclusion in the National Wilderness Preservation System. In
1980, Congress designated as wilderness the land in central Idaho that would become the
Frank Church – River of No Return Wilderness. The Golden Hand Mine was located in
this wilderness area.
One effect of this designation would be that as of January 1, 1984, mining would
be prohibited “[s]ubject to valid rights then existing.” See 16 U.S.C. § 1133(d)(3). This
meant that as of January 1, 1984, AIMMCO’s right to mine the Golden Hand claims
would be restricted to any valid rights it had prior to that date.
For each of the years from 1981 through 1983, AIMMCO submitted Plans of
Operation that were approved by the Forest Service. In February of 1984, AIMMCO
advised the Forest Service that its plan of operations would be the same as the year
1

Over the years, various entities owned these claims, including AIMMCO (a joint venture) and AIMMCO
(an LLC – the current owner). For ease of reference, the Court will simply refer to the owner as AIMMCO.

Memorandum Decision – Page 4

before. This time, the Forest Service refused to approve the plan until a field inspection
could be completed. A field inspection by Forest Service personnel was done and a
report filed in August of 1984, concluding that the claims were valid. The Forest Service
rejected that report, however, and another was done in 1986 concluding that the claims
were not valid.
On the basis of that study, the Forest Service commenced a validity contest on
February 25, 1987. In response, AIMMCO submitted its 1987 Assessment Work
Request to the Forest Service, seeking approval to do appraisal work on the claims to
support its claim of validity. See FS031217-19
In that 1987 Assessment Work Request, AIMMCO proposed on Claim 1 to use
hand labor to clear the entry to the Ella Portal. On Claim 2, AIMMCO proposed
mapping, sampling, trenching, and drilling to confirm the existence of mineral-bearing
xenolith. This work, the Request noted, “will require the construction of access roads
and preparation of drill sites.” Id. at FS031218.
The Request was only three pages in length and quite general in its proposals. It
failed to (1) identify the length of the proposed roads, (2) the number of the proposed
trenches and drill sites, (3) the duration of the surface-disturbing activities, or (4) any
mitigation measures. The Request did note that AIMMCO wanted to use existing
buildings on the site “for temporary living quarters of its crew during the time the work
described above is being conducted.” See FS031218.
Acting on the Request, the Forest Service permitted only the non-surface
disturbing proposals, and thus allowed only the mapping and sampling proposals on
Memorandum Decision – Page 5

Claim 2. All other proposals were denied as inconsistent with the Wilderness Act.
AIMMCO appealed this denial, but it was affirmed by the Forest Service Supervisor and
by the Regional Forester.
AIMMCO responded by filing suit in this Court to stay the validity contest until
AIMMCO could do assessment work that would support the validity of the claims. See
AIMMCO v. United States, Civil No. 88-1250. The parties reached an agreement to stay
that litigation and proceed with the validity determination.
The validity determination then proceeded to a hearing before Administrative Law
Judge Ramon M. Child, and ultimately a decision on January 19, 1989. Judge Child
found that AIMMCO had made a discovery of a valuable deposit on Claim 2 “but failed
to so prove with respect to Claim 1.” Judge Child found that the only evidence of
exposure of mineral on claim 1 “consists of samples taken from the dump outside of the
caved-in Ella Portal.” Judge Child made no mention of the 1935 report by geologist Bell
that analyzed samples taken from within the Ella Portal tunnel. Focusing only on the
dump samples, Judge Child found no evidence to fix their origin, and thus refused to
attribute any mineral found in the dump to the Ella Portal. He concluded that “there is a
failure of proof of an exposure of mineral in place within the boundaries of Claim
number 1.”
The parties appealed Judge Child’s decision to the Interior Board of Land Appeals
(IBLA), which rendered a decision on February 10, 1992. The IBLA affirmed Judge
Child’s decision that Claim 1 was invalid, but reversed his decision that Claim 2 was
valid. With regard to Claim 1, the IBLA found that Judge Child’s decision “was clearly
Memorandum Decision – Page 6

correct because the presumed situs of mineralization, the Ella Portal, had been caved in
for years. Exposure of a vein or lode carrying mineral values in place is a necessary
precondition to the validity of a lode claim.”
With regard to Claim 2, the IBLA reviewed the record and found only a few
samples from the claim that revealed nothing about the existence of a valuable mineral
deposit. AIMMCO responded that it had been unfairly precluded from collecting
samples when the Forest Service denied its 1987 request to do assessment work. The
IBLA rejected this assertion:
The record is clear that [William] Vanderwall [AIMMCO’s engineering
expert] had the same chance to sample claim 2 as he did other Golden Hand
claims. Prior to December 31, 1983, nothing prevented [AIMMCO] from
exposing sufficient mineralization on claim 2 from which reserve
calculations might be made. The record suggests rather that [AIMMCO] had
found little of interest on this claim to cause it to sample.
The IBLA went on to find that the lack of data on tonnage and grade of ore on
Claim 2 required it to speculate about the profitability of mining that claim. Refusing to
so speculate, the IBLA held that “[a]ssuming that mineralization has been shown on
Claim 2, [AIMMCO] has not shown the presence of a valuable mineral deposit.”
AIMMCO appealed that decision to this Court in AIMMCO v. United States, Civil
No. 00-291-S-BLW. In ruling on that appeal, this Court held that with regard to Claim 1,
the IBLA improperly ignored important evidence. Because the law required AIMMCO
to show that there was mineral exposure on Claim 1 prior to December 31, 1983, the
IBLA should have considered the evidence of Bell’s 40 samples, taken in 1935 from
within the Ella Portal tunnel. The Court held that

Memorandum Decision – Page 7

[b]y ignoring evidence of a prior exposure, the IBLA took a position that is
contrary to law. The Court therefore reverses the IBLA’s decision finding
claim 1 invalid because there was no present exposure. The Court remands
the validity determination as to claim 1 to the Department of Interior for a
rehearing to determine whether AIMMCO’s claim 1 is valid under the
authority discussed above.
With regard to Claim 2, the Court was concerned that AIMMCO had been blocked
by the Forest Service from doing the assessment work needed to prepare for its validity
hearing, and that the lack of that assessment work had been relied on by the IBLA in
denying the validity of Claim 2. The Court found that this violated the legal right that
AIMMCO had to do assessment work to prepare for the validity hearing: “AIMMCO
must be allowed a fair opportunity to prove the validity of its claims.” Accordingly, the
Court reversed the IBLA’s decision on Claim 2 and remanded it to the Department of the
Interior for a rehearing on whether AIMMCO satisfied the marketability test, after
AIMMCO had been given an opportunity to do assessment work by the Forest Service.
On that last point, the Court directed the Forest Service to recognize AIMMCO’s
right to prepare for a validity hearing. At the same time, the Court recognized the Forest
Service’s duty to consider environmental regulations. The Court urged AIMMCO and
the Forest Service to reach an agreed-upon result that would allow AIMMCO to prepare
for its hearing and recognize the applicability of environmental restrictions:
To reach that balance, both sides must give way. AIMMCO must reduce the
scope of its surface disturbing proposals, focus only on work that is necessary
to support validity, and propose mitigation and protective measures. The
Forest Service must recognize AIMMCO’s right to prepare for the validity
hearing, and allow work to that end, while requiring adherence to all
applicable rules and regulations.

Memorandum Decision – Page 8

Following the remand, AIMMCO spent several field seasons gathering samples on
the Claims to determine the extent of mineralization. Based on that sampling, AIMMCO
issued a new mining plan in August of 2007. See FS6154-58. It proposed 13 drill pads
from which 13 to 18 core holes would be drilled. It also called for an unspecified number
of trenches, and the construction of a bunkhouse and camp on the site to house workers.
Id.
To discuss this new plan, Forest Service representatives and AIMMCO geologists
held a meeting in Twin Falls Idaho on March 18, 2009. There is, however, nothing in the
record describing what was discussed there beyond a one-sentence summary by each
party. AMMICO states that it “presented confidential and proprietary results from its
geochemical sampling, which provided further evidence of the existence and location of
the inferred mineralized bodies extending through Claims 1 and 2.” See AIMMCO’s
Statement of Undisputed Facts (Dkt. No. 24-2) at ¶ 21. According to the Forest Service’s
account of the meeting, AIMMCO “presented a summary of geologic mapping and
geochemical anomalies it has detected mostly through recently collected soil samples
near the northeast corner of claim 2 and the east half of claim 1.” See FS6548.
Whatever justifications AIMMCO presented at that confidential meeting were not
sufficient for the Forest Service. About a month after the meeting, Forest Service District
Ranger Joe Harper wrote a letter to AIMMCO telling them that their Twin Falls
presentation failed to identify the need for each drill pad. See FS6547-49. Harper
explained that when his team gathered after the meeting to compare notes, they could not
“identify the preexisting exposures AIMMCO intends to confirm . . . and how the
Memorandum Decision – Page 9

proposed drilling is tied to these exposures.” See FS6548. Harper asked for “a map
showing the preexisting exposures, a description of the exposures, and a narrative
explanation of how AIMMCO’s proposed work is intended to confirm and corroborate
these preexisting physical exposures.” Id. In addition to this request, Harper asked
AIMMCO to answer eight specific questions designed to identify how each drill site
related to a pre-existing exposure. Id. AIMMCO answered those eight questions in a
letter dated June 11, 2009. See FS34487-94.
About two months later, the Forest Service thanked AIMMCO for its answers to
the eight questions and asked for their “updated plan of operations as we discussed in our
meetings.” See FS6550. AIMMCO provided that updated plan in January of 2010. See
FS6475-82. At the request of the Forest Service, AIMMCO reduced the drilling sites
from 13 to 11. Id. AIMMCO also decided not to proceed to mine Claims 3 and 4 in
order to “mitigate potential impact[s] . . . .” Id. at FS6476.
The Forest Service reviewed the January 2010 plan and asked AIMMCO for more
information. See FS6552. For example, the Forest Service asked AIMMCO (1) to
identify the ingredients in the drilling fluid and how it would be contained; (2) to describe
the work shifts; and (3) to describe more specifically the estimate of vehicle trips to and
from the drill sites. See FS6552-59. AIMMCO answered by identifying the drilling fluid
ingredients, explaining that the fluid would be contained in 4,000-gallon sump pits lined
with plastic, to be placed in the existing road bed for each drill pad, and specifying that
drilling will be conducted by one drilling rig on a 24-hour basis using two crews on 12
hour shifts. See FS6378-85.
Memorandum Decision – Page 10

During another meeting in October of 2010, the Forest Service asked AIMMCO to
consider housing the drilling crews at a site outside the wilderness instead of on the
Claim sites. See FS6561. AIMMCO agreed and revised its plan accordingly. Id.
In 2012, the Forest Service prepared a draft EIS for public comment. See
FS81963. After reviewing the public comments, the Forest Service issued its Final
Environmental Impact Statement (FEIS) in December of 2014, and a Record of Decision
(ROD) in July of 2015.
The ROD authorizes AIMMCO to conduct mineral confirmation activities inside
the Frank Church Wilderness to prepare for validity hearings for Claims 1 and 2. See
FS81956–57. These assessment activities would occur over 3 field seasons, which
typically last four months per year during July through October. See FS81978. The
ROD authorizes AIMMCO to use a bulldozer and other motorized earth-moving
equipment, drill rigs, and other machinery within the Wilderness to (1) reconstruct 4
miles of road, (2) construct up to 11 drill pads, each 20 by 20 feet, (3) drill up to 18 holes,
(4) construct for each drill pad a 4,000-gallon mud pit to hold drilling fluid, (5) excavate
three pit trenches (6 feet wide/15 feet long/10 feet deep) down to bedrock, and (5) reopen
the Ella Portal with a motorized excavator. See FS81972–76. To transport work crews
and equipment to the mine site, AIMMCO may use large pickup trucks and other motor
vehicles to drive 3 miles into the Wilderness, and back out, 571 times each field season.
See FS80435.
To mitigate the impacts, no new roads will be constructed – all roads will be
reconstructed on existing roadbeds. See FS80436-37. Likewise, all drill pads and
Memorandum Decision – Page 11

trenches will be constructed on existing roadbeds to minimize new disturbances. See
FS6477, 6479. AIMMCO will also engage in extensive monitoring to assess impacts on
water quality, fisheries, soil, and wildlife. See FS81991-97.
Ultimately, however, the mitigation measures do little to reduce the harm to
wilderness values, as the ROD recognized:
The wilderness user will see physical impacts to the land, motorized and
mechanized equipment, and hear noise and could see dust from these
machines from July to November for up to 3 years. This type and amount of
development will adversely affect the Wilderness users’ sense of solitude and
remoteness and enjoyment of a primitive recreation experience in the Beaver
Creek and Hand (Coin) Creek drainages, and the surrounding ridge tops that
encompass the project area. The actual use and the knowledge of these
activities will adversely impact the Wilderness character by compromising
the natural integrity and untrammeled conditions of the [Frank Church]
Wilderness.
See FS081960.
LEGAL STANDARDS
Under the Administrative Procedures Act (APA), the Court must determine
whether the Forest Service’s decision was “arbitrary, capricious, not supported by
substantial evidence, or contrary to law.” 5 U.S.C. § 706(2)(A). An agency acts
arbitrarily if it “relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.” Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

Memorandum Decision – Page 12

(1983). The court may not substitute its judgment for that of the agency. Natural
Resources Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir.1987).
To determine whether the Forest Service acted arbitrarily, the Court must consider
whether it followed the various laws governing its decision. That was no easy task.
AIMMCO’s right to mine is governed by two different agencies. The Forest Service
regulates surface rights in the National Forest where the claims are located, and the
Interior Department regulates mineral rights. While the Interior Department ultimately
determines whether AIMMCO’s mining claims are valid, the Forest Service determines
the scope of work on the ground.
It is the Forest Service that the Court focuses on here, and its decisions are
governed by five different federal laws: (1) Mining Law of 1872; (2) National
Environmental Protection Act (NEPA); (3) Organic Act; (4) National Forest Management
Act (NFMA); and (5) Wilderness Act of 1964.
Under the Mining Law of 1872, and this Court’s prior decision, AIMMCO is
entitled to gather sufficient evidence to make its case that (1) there was a discovery of a
pre-existing exposure of minerals before the creation of the wilderness area2; and (2) the
two claims contain a “valuable mineral deposit” under the “prudent-man test.” U.S. v.
Coleman, 390 U.S. 599, 602 (1968). AIMMCO’s task in a validity hearing will be to
show that it has discovered a mineral deposit that is of sufficient quality and quantity to

See FS34490 (letter dated June 11, 2009, wherein AIMMCO states that it “understands that the evidence
it develops as a result of its plan will be admissible only to show whether a valid discovery was made before the
creation of the Frank Church Wilderness.”
2

Memorandum Decision – Page 13

justify further expenditure on its development. Because the majority of the deposit is
underground, AIMMCO must use drilling and trenching to delineate the mineral deposit,
to determine the width and depth of the ore-bearing material, and to determine the quality
of the mineral deposit. See FS34491-92. Not only must AIMMCO show the quality and
extent of the ore body, it must make reasonable estimates of the costs to mine and recover
locatable minerals. AIMMCO therefore needs sufficient information to evaluate
potential mining methods and costs.
But AIMMCO’s mining is not unrestricted. It must be conducted “in a manner
compatible with the preservation of the wilderness environment” to comply with the
Wilderness Act of 1964. See 16 U.S.C. § 1133(d)(2). That “wilderness environment” is
defined as “an area where the earth and its community of life are untrammeled by man,
where man himself is a visitor who does not remain.” See 16 U.S.C. § 1131(c). The
mining is also regulated by the Organic Act and its authorized regulations that require
mining to “be conducted so as, where feasible, to minimize adverse environmental
impacts on National Forest surface resources,” including air, water, fisheries, and scenic
values. See 36 C.F.R. § 228.8. And to be consistent with NFMA, the mining must
adhere to the Management Plan for the Frank Church Wilderness, which allows
“reasonable access” only for “essential” use of “valid mineral claims established before
December 31, 1983.” See FS3374; 16 U.S.C. § 1604(i). Finally, NEPA requires
transparency in the evaluation process – the Forest Service’s evaluation of AIMMCO’s
mining project must be “available to public officials and citizens before decisions are
made and before actions are taken.” 40 C.F.R. § 1500.1(b).
Memorandum Decision – Page 14

ANALYSIS
Effect of 2002 Court Decision
The plaintiffs argue that the Forest Service ignored the fact that the Court’s 2002
decision treats the 1987 Assessment Work Letter as a baseline from which AIMMCO had
to retreat in negotiating the scope of assessment work with the Forest Service. The Court
disagrees. The 1987 Assessment Work Letter contained none of the detail necessary to
serve as such a baseline. While the Letter proposed drilling, trenching and road building,
it failed to identify or discuss (1) the length of the proposed roads, (2) the number of the
proposed trenches and drill sites, (3) the duration of the surface-disturbing activities, or
(4) any mitigation measures. Having nothing concrete to work with, the Court could not
– and did not – hold that the 1987 letter set a baseline for assessment work from which
AIMMCO had to retreat. Instead the Court was simply urging both parties to
compromise to reach an agreement. In other words, we start here with a blank slate, and
the Forest Service properly interpreted the Court’s decision on this point.
Drilling, Trenching & Roads
The Forest Service has no easy task here. It must balance mineral extraction with
wilderness protection. To comply with the duties imposed on it by the statutes discussed
above, the Forest Service must assess the minimum activity necessary for AIMMCO to
prepare for its validity hearing. The Payette Forest Supervisor Keith Lannom recognized
this very duty in the ROD when he concluded that “[m]y decision will impact the
Wilderness character . . . but has been determined to be the minimum necessary . . .
considering the [mining] rights in the project area . . . .” See FS81960 (emphasis added).
Memorandum Decision – Page 15

To reach this conclusion, the Forest Service must first understand AIMMCO’s
justification for each drill pad, each trench, each road, and each vehicle trip. The Forest
Service must ask: How will each activity help AIMMCO prove validity? Once the
agency understands the answer to that question, it must then evaluate whether alternatives
are available that would reduce impacts but still allow AIMMCO to prepare for its
hearing. To do this, the Forest Service is entitled to ask hard questions and get straight
answers. And its evaluation of those answers must be fully documented so that it can be
reviewed by the public.
The Forest Service followed this process in evaluating AIMMCO’s mining plan
for two claims (Claims 3 & 4) that adjoin Claims 1 & 2.3 While that evaluation is not
before the Court for review, it is contained in this administrative record and provides an
instructive example of a thorough agency review.
In that evaluation for Claims 3 & 4, the Forest Service issued a twenty-nine-page
report – titled Surface Use Analysis – prepared by its own Certified Mineral Examiners.
See FS16362-91. This analysis evaluated AIMMCO’s justification for every proposed
drill site and trench. It examined the necessity for the full number of drill sites and
trenches, their relation to pre-existing exposure of minerals, and the availability of lessinvasive alternatives. It concluded that AIMMCO failed to link 20 of the 31 drilling sites
to any mineralization, and that many of the drill sites appeared to be nothing more than
“pure wildcat exploration.” See FS16388. It identified a less invasive alternative where
3

Claim 3 adjoins the southern boundary of Claim 2 while Claim 4 abuts the southeastern
boundary of Claim 2. See FS6482.
Memorandum Decision – Page 16

drilling would be sequenced, allowing AIMMCO to “verify first and extend second.” See
FS16388. Under this alternative, AIMMCO would start with half as many drill sites and
then review the results to determine if drilling should be extended further. Id. The
analysis also concluded that all trenching should be deferred until drilling verifies
deposits. Id. at FS16390.
The Court is not suggesting that the same conclusions apply to Claims 1 & 2.
Rather, it is the process, not the result, of the Surface Use Analysis for Claims 3 & 4 that
merits close attention. That process reviewed AIMMCO’s justifications for each part of
its mining plan, evaluated less-invasive alternatives, proposed a plan that wove together
environmental protections with AIMMCO’s right to mine, and accomplished all this in a
detailed analysis that could be reviewed by the public. That is the process compelled by
the welter of statutory directives – the Mining Act, Wilderness Act, Organic Act, NFMA,
& NEPA – that govern the Forest Service.
Was the same process employed for Claims 1 & 2? There is a Surface Use
Analysis for Claims 1 & 2, see FS16671-74, but it contains a conclusion rather than
analysis: “The information that will be obtained from AIMMCO’s proposal is needed by
both the company and Forest Service to verify valid existing rights for the subject claims.
AIMMCO and the Forest have limited the scope of the proposal to minimize the surface
disturbance and still gain the required mineral resource information.” Id. at FS16674.
There is a similar conclusion-without-analysis in the Minimum Requirements
Decision Guide (accompanying the EIS): “Alternative C is identified (selected) as the
recommended course of action because it reduces the negative impacts to wilderness
Memorandum Decision – Page 17

character to the greatest possible extent while complying with the legal mandate to
authorize activities reasonably incident to mineral development on valid claims.” See
FS17739.
How did the Forest Service reach these conclusions? Why does AIMMCO’s plan
require 11 drill sites, 3 trenches, and 4 miles of reconstructed roads? Could AIMMCO
get by with less? If not, why not? The Forest Service did not answer these questions in
the Surface Use Analysis. To find answers – that is, to obtain the transparent analysis
that the statutes require – the reader must look elsewhere.
But there is no other source. Neither the FEIS nor the ROD analyze AIMMCO’s
proposed drill sites, trenches, and miles of roads, or explain why they could not be
reduced. This is not to say the Forest Service never internally answered these questions.
Indeed, the factual background – set forth above – shows that the Forest Service was very
active in meeting with AIMMCO and expressing concerns. While the plaintiffs argue
that the Forest Service just “caved in” to AIMMCO after getting the June 2009 letter, the
Court disagrees. The record set forth above shows that the Forest Service met frequently
with AIMMCO after that letter, eventually convincing AIMMCO to reduce the drill pads
from 13 to 11 and to house workers off-site, among other concessions.
But whatever calculus the Forest Service engaged in to conclude internally that
AIMMCO’s project reduced impacts to their minimum was not shared with the public in
any written analysis. That violates NEPA:
Congress wanted each federal agency spearheading a major federal project
to put on the table, for the deciding agency’s and for the public’s view, a
sufficiently detailed statement of environmental impacts and alternatives so
Memorandum Decision – Page 18

as to permit informed decision making. The purpose of NEPA is to require
disclosure of relevant environmental considerations that were given a ‘hard
look’ by the agency, and thereby to permit informed public comment on
proposed action and any choices or alternatives that might be pursued with
less environmental harm.
Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir.2005); 40 C.F.R. §§ 1500.1(b);
The transparency that NEPA requires was ignored when AIMMCO and the Forest
Service held a confidential meeting in Twin Falls, as discussed above. At that meeting,
AIMMCO concedes that it presented evidence important to the approval of its plan:
“[We] presented confidential and proprietary results from its geochemical sampling,
which provided further evidence of the existence and location of the inferred mineralized
bodies extending through Claims 1 and 2.” See AIMMCO’s Statement of Undisputed
Facts (Dkt. No. 24-2) at ¶ 21. The Forest Service confirms this account: “[AIMMCO]
presented a summary of geologic mapping and geochemical anomalies it has detected
mostly through recently collected soil samples near the northeast corner of claim 2 and
the east half of claim 1.” See FS6548.
Under NEPA, the agency cannot rely on material that is kept secret from the
public. Lands Council, supra. So the agency either must explain that it did not rely on
this confidential information or, if it did rely upon it, describe the information and how it
affected the agency’s decision. But the agency did neither in the EIS and ROD. Thus,
the Forest Service’s decision is arbitrary and capricious because it may have relied on
information withheld from the public.
The agency’s decision violates NEPA for another reason – the failure to explain its
conclusions. There is no doubt that the Forest Service concluded that the 11 drill sites
Memorandum Decision – Page 19

and 3 trenches were the minimum activity necessary for AIMMCO to prepare for its
validity hearing. See FS81960 (ROD) (concluding that “[m]y decision . . . has been
determined to be the minimum necessary . . . considering the [mining] rights in the
project area . . . .”). But the agency’s analysis – its reasoning that led to that conclusion –
is not to be found in this record. It is this lack of analysis that violates NEPA. The Court
will therefore remand this portion of the case to the Forest Service to prepare a
supplemental EIS that (1) contains the reasons why it concluded that the 11 drills sites
and 3 trenches were the minimum activity necessary for AIMMCO to prepare for its
validity hearing; and (2) explains whether it relied on the information provided by
AIMMCO at the confidential Twin Falls meeting and, if so, describes the nature of that
evidence.4
Motorized Vehicle Trips
The Court turns next to the agency’s evaluation of the motorized vehicle trips.
Here, the Forest Service did document its reasoning process for reducing AIMMCO’s
771 planned trips to 571 trips. Originally, AIMMCO wanted to house the workers at the
mining site, which would eliminate the need to transport workers by motorized vehicles
each day but would cause substantial impacts related to the housing. The Forest Service
determined that the motorized commuter trips were preferable to housing workers on site,
and then evaluated how to reduce the motorized trips. Some trips could not be reduced

AIMMCO’s counsel asserted at oral argument that no agency should be empowered to direct a mining
company where to place its drilling rigs. The Court is not granting to the Forest Service that power. Instead, the
Court is implementing NEPA’s requirement that the agency reveal its reasoning.
4

Memorandum Decision – Page 20

because supplies and heavy equipment had to be transported by motorized vehicles. But
the workers’ commuter trips were a possible source of reduction. In the EIS, the Forest
Service considered requiring the workers to commute by pack animal or by walking the 3
to 3.5 miles from their housing (outside the wilderness area) to the mining claims:
Potential effects to wilderness character of requiring stock use instead of
motorized use for travel to slightly reduce the number of motorized intrusions
to and from the site for shift changes was looked at in regards to the four
tangible qualities of wilderness. Using stock for travel to and from the site
in lieu of motor vehicle would still not eliminate the need for motor vehicle
transport during the project life and this motorized use would continue to
impact the qualities of wilderness. Since motorized use would still be
necessary, the road maintenance required to facilitate the operations would
still be necessary. Using non-mechanized means to conduct operations
would potentially lengthen the overall project duration and extend the
impacts to wilderness character. It is not possible to quantify the actual
increase in duration but the nature of this travel is slower and throughout an
operating season situations normally arise where motorized access would
lessen downtime. This alternative would potentially have greater impact on
the wilderness quality of solitude or primitive and unconfined type of
recreation because of the assumed additional time it would take to
accomplish the project. The additional time required to walk or ride would
likely result in three shift day thereby further impacting solitude at more
frequent intervals than a two shift day. Repeatedly using stock to carry gear
supplies and workers to the site also could present a safety issue for the stock
with the large objects required at the site on daily basis and would require
night time operations of stock. The use of large quantities of stock would
impact the trail similar to motorized use except for the width of impact and
would still require the same level of road maintenance to get ingress/egress
for other equipment. Holding areas needed within the wilderness while
freight is offloaded reloaded and crews transfer from shift to shift would
result in disturbance and associated impacts to wilderness character. Stock
pens would be needed immediately outside the wilderness and result in
additional soil disturbance water needs and the trips to supply feed. The use
of stock would not reduce the impacts to the pristine nature (naturalness and
untrammeled) of the wilderness since all other impacts would still occur to
get needed equipment into the site and stock could create additional impacts.
Outside of solitude the use of stock would not reduce any impacts to
wilderness character and could add to impacts from high levels of stock
usage. Stock and walking are marginally quieter than motorized equipment
Memorandum Decision – Page 21

however solitude would still be impacted and increased due to more daily
shift changes and overall project duration. This additional impact to
wilderness quality was gauged to be significant enough to warrant dropping
this alternative from in-depth analysis. The interdisciplinary team believed
after comparing the advantages and disadvantages of non-motorized access
that the best way to minimize the effects to wilderness character is to
minimize the time necessary to complete the project. Because there was no
clear benefit to wilderness character with this alternative it was dropped from
in-depth analysis.
See FS80425-26. In this passage, the Forest Service thoroughly analyzes the use of stock
instead of vehicles. Because the use of stock comes with its own set of impacts, and
would lengthen the duration of the mining project, the Forest Service reasoned that using
vehicles is less damaging to wilderness values. The Court cannot find that decision to be
arbitrary or capricious.
But what about having workers walk to the site rather than be transported by
motorized vehicles? This option would, according to the Forest Service, result in the
need for a three-shift day instead of a two-shift day and lengthen the duration of the
mining project. The trip is about 3 to 3.5 miles, and requires an elevation gain of at least
1,000 feet to get over Pueblo Summit, whether the workers are going or returning from
their shift. See FS80390, 81976. Add unpredictable weather to this terrain and it is not
arbitrary for the Forest Service to conclude, as it did, that “the nature of this travel is
slower and throughout an operating season situations normally arise where motorized
access would lessen downtime.” See FS80425.
Plaintiffs complain, however, that the Forest Service was wrong in concluding that
banning motorized commutes for the workers would only “slightly reduce the number of

Memorandum Decision – Page 22

motorized intrusions.” See FS80425. In fact, banning motorized commutes would
reduce total trips by 400, a substantial reduction.5
Thus, the Forest Service erred in estimating that banning motorized commutes
would only “slightly reduce” the number of motorized trips. That error could have
affected its ultimate conclusion that “there is no clear benefit to wilderness character”
from requiring workers to walk to the site rather than be transported by motorized
vehicle.
The Court therefore finds further that the EIS and ROD violate the Wilderness Act
and NFMA because the Forest Service did not take into account the potential reduction of
400 motorized trips by having workers walk to work, rendering arbitrary the finding that
571 trips was an essential amount necessary for AIMMCO’s assessment work. The
Court will therefore remand this portion of the decision to the Forest Service with
instructions to determine whether their analysis in § 2.3.5 of the EIS changes if they
assume that walking to work reduces total motorized trips by 400.
Alternatives
NEPA requires an EIS to describe and analyze “every reasonable alternative
within the range dictated by the nature and scope of the proposal.” Alaska Survival v.
Surface Transp. Bd., 705 F.3d 1073, 1087 (9th Cir. 2013). Consideration of alternatives
“is the heart of the [EIS],” and agencies should “[r]igorously explore and objectively

5

AIMMCO needs to make two trips a day using two vehicles for each trip to transport workers to
the site and back. See FS80438. Given that an operating season is roughly July through October, this
adds up to about 400 trips per operating season. See FS80478.
Memorandum Decision – Page 23

evaluate all reasonable alternatives” that relate to the purposes of the project and briefly
discuss the reasons for eliminating any alternatives from detailed study. Id.; 40 C.F.R. §
1502.14. “The [EIS] need not consider an infinite range of alternatives, only reasonable
or feasible ones.” Id. But failure to examine a reasonable alternative renders an EIS
inadequate. Id.
The EIS considered a no-action alternative, but it was never a serious option
because it would have precluded AIMMCO from doing any work, thereby violating the
1872 Mining Act. The other two alternatives – Alternatives B & C – contained an
identical number of drilling pads, trenches, and roads. Alternative C did reduce the
motorized vehicle trips by 200, but the EIS itself concluded that “[t]here is really no
pragmatic or substantially identifiable difference” between Alternative B and C. See
FS80479-80.
No alternative discussed a reduction in drilling pads, trenches, and roads while still
allowing AIMMCO to do its assessment work. This is probably why the Forest Service
failed to explain its conclusion that it was approving the “minimum necessary” activities
– if an alternative had actually proposed a reduction in drilling pads and trenches, the
Forest Service would have been forced to explain why it was rejecting that alternative.
So this lack of alternatives is directly related to the Court’s earlier discussion of the
agency’s failure to explain its conclusions.
NEPA requires that either the Forest Service explain its conclusion that it was
approving the “minimum necessary” activities or pursue an evaluation of an “Alternative
D” that reduces the drilling pads, trenches, and/or roads while still allowing AIMMCO to
Memorandum Decision – Page 24

do assessment work. The Court will remand this case to the Forest Service for that
purpose.
Riparian Conservation Areas
Plaintiffs argue that the Forest Service’s ROD violates NFMA because it approves
mining activities inside Riparian Conservation Areas (RCAs). NFMA requires agencies
to ensure that their actions – including authorizing mining – are consistent with the
applicable Forest Plan for each National Forest. See 16 U.S.C. § 1604(i). The Payette
National Forest Plan has two standards that apply here. See MIST08 & MIST09 at
FS000138-39. The first standard, MIST08, requires the mining company to “[l]ocate
new structures, support facilities, and roads outside RCAs. Where no alternative to siting
facilities in RCAs exists, locate and construct the facilities in ways that avoid or
minimize degrading effects to RCAs and streams.” The second standard, MIST09,
directs the Forest Service to “[p]rohibit solid and sanitary waste facilities in RCAs,” and
“if no alternative to locating mine waste (waste rock, spent ore, tailing) facilities in RCAs
exists then . . . [l]ocate and design waste facilities . . . to ensure mass stability and prevent
the release of acid or toxic materials.” Id.
Here, certain portions of the approved mining plan are located in RCAs. The EIS
notes that 0.7 miles of reconstructed road (ultimately approved in the ROD) would be
located in an RCA. See FS80498. In addition, the ROD authorizes trenches in the RCAs.
See FS81976.
The Forest Service evaluated both of these activities in light of MIST08 and
concluded that there was no alternative to the siting of both. See FS 28789 & FS28845.
Memorandum Decision – Page 25

The agency reasoned that moving the 0.7 miles of road reconstruction outside of the RCA
would move it from an old existing roadbed to a previously undisturbed region of the
wilderness area, a net loss for wilderness values. Id. With regard to the trenches, moving
them outside of the RCAs would also move them from an existing roadbed to a
previously undisturbed area, again producing a net loss for wilderness values. Id. The
Court cannot find that either decision is arbitrary.
The EIS also notes that all latrines are located outside of RCAs except for the
latrine at the Golden Hand mine site. See FS80501. But the EIS discusses the various
steps taken to protect the land and water from contamination from this latrine: (1) the
latrine will be “located as far away from stream channels as possible”; (2) the latrine will
be a “small capacity sealable latrine” that will “insure that the contamination of streams
[will] not occur”; and (3) the “[g]ray water would be disposed of outside of RCAs and
therefore would not likely reach streams.” See FS80501-02. The Forest Service
therefore decided that no alternative to siting this latrine existed and that protections were
in place to “prevent the release of acid or toxic materials” as required by MST09. The
Court cannot find this decision arbitrary.
The plaintiffs raised a question whether the drill pads were actually outside of the
RCAs. But the Forest Service has concluded that all drill pads are outside the RCAs and
no contrary evidence exists. See FS28845 (statement by Payette Forest Geologist that
“[a]ll proposed drill pads are located outside of RCAs”).
For all of these reasons, the Court finds that plaintiffs’ motion for summary
judgment on the RCA issue will be denied and the defendants’ motion will be granted.
Memorandum Decision – Page 26

Conclusion
The Court will therefore grant in part plaintiffs’ motion for summary judgment.
The Court finds, as a matter of law, that the EIS and ROD violate NEPA because (1) they
fail to explain why the Forest Service concluded 11 drills sites and 3 trenches were the
minimum activity necessary for AIMMCO to prepare for its validity hearing; (2) they fail
to consider alternatives that would have reduced the drilling, trenching and road
reconstruction but still allowed AIMMCO to do its necessary assessment work; and (3)
they fail to explain whether the agency relied on the information provided by AIMMCO
at the confidential Twin Falls meeting and, if so, they fail to describe the nature of that
evidence.
The Court finds further that the EIS and ROD violate the Wilderness Act and
NFMA because the Forest Service did not take into account the potential reduction of 400
motorized trips by having workers walk to work, rendering arbitrary the finding that 571
trips was an essential amount necessary for AIMMCO’s assessment work.
The Court will deny plaintiffs’ motion, and grant defendants’ motions, finding as a
matter of law that the EIS and ROD did not violate NFMA by improperly placing
activities within the RCAs.
Based on these findings, the Court will declare the ROD and the work it authorizes
as invalid, and will remand this case to the Forest Service to:
(1) Either explain why it concluded that 11 drills sites, 4 miles of reconstructed roads,
and 3 trenches were the minimum activity necessary for AIMMCO to prepare for
its validity hearing or consider an Alternative D that reduces the drilling, trenching
Memorandum Decision – Page 27

and road reconstruction but still allows AIMMCO to do its necessary assessment
work;
(2) Explain whether the agency relied on the information provided by AIMMCO at
the confidential Twin Falls meeting and, if so, describe the nature of that evidence
and how it affected the agency’s decision;
(3) Estimate how many motorized vehicle trips would be saved by having workers
walk to work instead of being transported by motorized vehicles, and then explain
whether those saved trips would change the analysis in § 2.3.5 of the EIS.
The Court will prepare a separate Judgment as required by Rule 58(a).

DATED: August 2, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision – Page 28