The Ninth Circuit Determines United States Department of the Interior Failed to Properly Consider Impact on Wildlife in Authorizing Land Transfer

Posted by Tony Eliseuson, ALDF Volunteer Attorney Member on November 13, 2009

In Center for Biological Diversity v. United States Dept. of the Interior, 581 F.3d 1063 (9th Cir. 2009), a divided three-judge panel of the Ninth Circuit determined that the United States Department of the Interior (“DOI”) and the Bureau of Land Management (“BLM”) had failed to properly evaluate the environmental impacts, including the impact on wildlife, of a proposed land exchange. In the proposed land exchange, a mining entity called Asarco LLC (“Asarco”) proposed providing 7,300 acres of private land to the BLM in exchange for 10,976 acres of publicly held land in Arizona, located to the South and East of the Phoenix area. This land not only contains important and valuable minerals, it also was home to wildlife and plant habitats that may be endangered by major mining operations. As the Ninth Circuit stated:

The selected lands provide important wildlife and plant habitat, including high priority reintroduction habitat for desert bighorn sheep, 6,860 acres of endangered desert tortoise habitat, and potential habitat for threatened and endangered birds. Upland plant communities cover 99.2% of the selected lands and include riparian plant communities and three plant species designated for special status by the BLM. Some of the selected lands are immediately adjacent to the White Canyon Area of Critical Environmental Concern, and some are adjacent to or in close proximity to the White Canyon Wilderness. The selected lands include seventy-eight archaeological sites, of which forty are regarded as eligible for nomination to the National Register of Historic Places.

(Id.)

Despite the environmental importance of the publicly-held lands, the DOI and BLM approved the proposed land exchange finding that it would not have any significant impact on the environment or wildlife of the land. But this conclusion was based solely on the DOI and BLM’s assumption that Asarco’s mining operations would occur with or without the land exchange, and it was this assumption that was at the heart of this litigation.

The DOI and BLM assumed mining operations would occur because Asarco held 747 unpatented mining claims, which covered all but one parcel (480 acres) at issue in the proposed land exchange. Under the Mining Law of 1872, holders of such unpatented claims do have the right to engage in certain mining activities without BLM approval, if such mining is “casual use.” The DOI and BLM, however, assumed that any mining operations conducted by Asarco would proceed with or without the land exchange, which the Ninth Circuit determined was unwarranted. The assumption was flawed because under the Mining Act of 1872, any mining operations beyond “casual use,” would require Asarco to submit one or more Mining Plan of Operations (“MPOs”) to the BLM, which the BLM would need to approve, before Asarco could engage in the proposed mining operations. Further, “casual use,” is very limited, it is defined to mean “‘activities ordinarily resulting in no or negligible disturbance of the public lands or resources,’ such as collection of mineral specimens using hand tools.” (Id.) Here, it was apparent that Asarco intended full-scale commercial mining operations, which would have exceeded such casual use, and required the submission of MPOs.

Notably, MPOs are explicitly required to include information regarding “wildlife habitat rehabilitation,” and many other specific impacts on the environmental condition of the land. Once an MPO is submitted the BLM could require Asarco to provide additional information before deciding whether to approve the MPO, and the BLM may have to “complete consultation under the Endangered Species Act and/or the Magnuson-Stevens Fishery Conservation and Management Act.” An MPO could be denied if it was determined that the proposed operations would have harmful impacts on the environment or wildlife.

As the Ninth Circuit summarized:

[I]f the selected lands remain in public hands, Asarco will be required to obtain the approval of the BLM for one or more MPOs before it can conduct additional mining operations on those lands. It is highly likely that the process of obtaining BLM approval of one or more MPOs will substantially affect the manner in which mining operations will occur on the selected lands. By contrast, if the selected lands are conveyed to Asarco in fee simple, Asarco will be able to conduct its mining operations without being constrained in any way by the MPO process.

(Id.) Accordingly, the DOI and BLM’s assumption that the same mining operations would occur with or without the land exchange occurring was fatally flawed, which meant that the failure to consider the wildlife and environmental impacts in more detail was an error. Thus, the Ninth Circuit found that the decision to authorize the proposed land exchange was arbitrary and capricious.

Interestingly, the 3-judge panel was not unanimous on this decision, and one judge wrote a dissent claiming that the majority had erred in failing to provide sufficient deference to the decision of the agencies under a recent en banc Ninth Circuit precedent, Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). This dissenting opinion emboldened Asarco, the DOI, and BLM to seek en banc reconsideration of the decision by the full Ninth Circuit, and such a motion was filed by Asarco on October 29, 2009 and will likely be joined by the DOI and BLM when their motions are due on November 30, 2009.