Ninth Circuit Holds the Bureau of Land Management Failed to Take a “Hard Look” at the Environmental Consequences of a Proposed Land Exchange

In Center for Biological Diversity v. U.S. Department of the Interior (9th Cir. 2010) 623 F.3d 633, the Ninth Circuit held that the Bureau of Land Management (BLM) acted arbitrarily and capriciously by failing to take a “hard look” at the likely environmental consequences of a proposed land exchange. The court found that the BLM did not compare the environmental effects of the proposed land exchange with the effects of no land exchange. As a result, the BLM violated the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). The court declined to address Appellants’ claimed violation of the Mining Law of 1872.

Asarco LLC owns and operates a copper mine complex in Arizona. In 1994, Asarco proposed a land exchange with the BLM, the terms of which were amended in 1997. Pursuant to the land exchange, Asarco would convey to the BLM 18 parcels of private land totaling 7,300 acres (the “offered lands”) while Asarco would receive complete ownership of 31 parcels of public land totaling 10,976 acres (the “selected lands”). The offered lands include riparian plant communities and important wildlife habitat. The selected lands are presently encumbered by mining claims or mill site claims, most of which are held by Asarco. If the proposed land exchange did not occur, the selected land would continue to be owned by the United States and, pursuant to the Mining Law of 1872, Asarco would not be able to conduct new mining operations without submitting a Mining Plan of Operations (MPO) to the BLM. The BLM would have to approve the MPO before new mining began.

In October 1998, the BLM published a draft environmental impact statement (EIS) and the BLM issued a final EIS in June 1999. The EIS examined the proposed land exchange and three alternatives, including the no action alternative. In the final EIS, the BLM assumed that the manner and extent of Asarco’s new mining operations would be the same whether or not the land exchange occurred, that is, whether or not the proposed action or the no action alternative went forward. Thus, the final EIS did not compare the likely environmental consequences of the land exchange and the no action alternative. The Record of Decision (ROD), issued in April 2000, did not amend this assumption or provide a comparative analysis. Instead, the ROD approved the land exchange. Additionally, the ROD approved the amendment of two Resource Management Plans (RMPs) to change the land use designation of the selected lands so that the BLM would no longer need to manage the selected lands as multiple-use lands under FLPMA. The amendments to the RMPs were prerequisites to conveying the selected lands from public ownership.

Appellants filed an administrative appeal, which was denied in August 2004. Appellants filed suit against Asarco, the U.S. Department of the Interior and the BLM (collectively, “Appellees”) in federal district court, which granted summary judgment to Appellees. Appellants timely filed an appeal. Appellants contended that the BLM’s approval of the land exchange violated NEPA, FLPMA, and the Mining Law of 1872.

The court first addressed Appellants’ NEPA claim. The court concluded that BLM’s assumption in the final EIS that the environmental consequences of the proposed land exchange and no project alternatives would be the same was arbitrary and capricious. The court reasoned that the BLM improperly assumed the Mining Law would have no impact on the manner in which Asarco will conduct new mining activities if the selected lands continued to be owned by the public. The court reviewed the terms of the Mining Law to conclude that the manner and extent of mining activity is likely to differ depending on whether the selected lands are owned by the public or by Asarco. In particular, because Asarco intended to engage in mining activities beyond mere “casual use” on the selected lands, the Mining Law required Asarco to submit one or more MPOs. For each MPO, Asarco would have to provide a significant amount of information on its mining plans in addition to any requested information by the BLM. The Mining Law also mandated procedural requirements, including a requirement that the BLM consult with other agencies during the MPO process, that the BLM comply with NEPA, and that the BLM cannot approve a MPO unless it complies with FLPMA. In contrast, if Asarco held the selected lands in private ownership, Asarco’s mining operations would not be laden with the requirements of the MPO approval process.

NEPA requires a comparative analysis of the environmental consequences of the alternatives before the agency. In this case, the court noted the proper analysis under NEPA would compare the environmental consequences of the no action alternative, in which Asarco would own mining claims on public land and would be required to prepare an MPO, and the proposed land exchange, in which Asarco would privately own the land to be mined and would not require preparation of an MPO. Here, the EIS failed to include this comparative analysis. Thus, the BLM had not conducted the “hard look” that NEPA requires, and instead, the court concluded the BLM had “averted its eyes from what [was] in plain view before it.”

Next, the court went on to address Appellants’ FLPMA claim. FLPMA forbids land exchanges unless the exchanges would serve the public interest. The court reiterated that the ROD unreasonably assumed that mining would occur in the same manner and to the same extent whether or not the land exchange occurred. For that reason, the court concluded the BLM’s analysis of the public interest was fatally flawed and that its decision that the land exchange was in the public interest was arbitrary and capricious.

Regarding Appellants’ Mining Law claim, the court declined to reach the question of whether the law would be violated if the land exchange occurred under the current circumstances. Additionally, the appellate court left for the district court to decide whether the ROD incorrectly approved changes to two RMPs. Appellants had not directly challenged the RMPs in their appeal. The court noted the flawed assumption underlying the BLM’s analysis of alternatives in the EIS also infected its decision with respect to the RMPs.

Finally, the court rebutted the dissent’s contention that the court’s holding in the case at bar was inconsistent with the Ninth Circuit’s decision in The Lands Council v. McNair (2008) 537 F.3d 981. In The Lands Council, the court held that the U.S. Forest Service had taken the required “hard look” under NEPA with respect to a proposed logging project despite plaintiff’s claims that the agency failed to adequately discuss scientific uncertainty, to cite adequate evidence supporting the benefits of the proposed action, and to examine the adverse environmental impacts. Rather, the court clarified that in the case at bar, the BLM ignored black-letter law under NEPA requiring a meaningful comparison among the alternatives before the agency. In so doing, the BLM acted arbitrarily and capriciously.