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Idaho Conservation League, Idaho Rivers United, and v. United States Forest Service

August 29, 2012

IDAHO CONSERVATION LEAGUE, IDAHO RIVERS UNITED, AND
GOLDEN EAGLE AUDUBON SOCIETY,
PLAINTIFF,
v.
UNITED STATES FOREST SERVICE, DEFENDANT,
MOSQUITO MINING CORPORATION, INTERVENOR/DEFENDANT.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

MEMORANDUM DECISION AND ORDER

Pending before the Court in the above-entitled matter are the Cross-Motions for Summary Judgment filed by the parties in this environmental case and related motions. The matters have been fully briefed and are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without a hearing.

FACTUAL AND PROCEDURAL BACKGROUND

On July 27, 2011, Plaintiffs, Idaho Conservation League, Idaho Rivers United, and Golden Eagle Audubon Society, filed the Complaint in this matter challenging the United States Forest Service's ("Forest Service") actions and decisions made in relation to its February 2011 Decision Notice ("DN"), Finding of No Significant Impact ("FONSI"), and Environmental Assessment ("EA").*fn1 (Dkt. 2.) These actions and decisions resulted in the approval of the CuMo Exploration Project ("CuMo Project" or "Project"), a mining exploration Project, on the Grimes Creek in the Boise River watershed within the Boise National Forest in Idaho. Mosquito Mining Corporation is the private mining exploration company seeking to undertake the CuMo Project for the purpose of conducting preliminary exploratory drilling activities in order to determine whether there is sufficient mineralization and adequate geological characteristics present in the area to support a mine for copper and molybdenum. (Dkt. 12.) The Project was submitted pursuant to the 1872 Mining Law as amended under which the Forest Service has authority to regulate but may not deny a project provided the activities proposed are reasonably incident to mining, not needlessly destructive, and otherwise comply with applicable state and federal law. (CU046241, CU045815-16) (citing 16 U.S.C. § 478, 551, 30 U.S.C. § 612.) Given its role in the CuMo Project, Mosquito Mining filed a Motion to Intervene which this Court granted. (Dkt. 7, 11.)

The Plaintiffs bring this case under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., claiming the Forest Service's decisions and actions violate the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. and National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq. and implementing regulations of these statutes. (Dkt. 2.) The Forest Service maintains its decisions and actions were in accord and fully complied with the applicable standards and requirements of these statutes. (Dkt. 17.) Likewise, Mosquito Mining argues the Forest Service properly complied with NEPA and NFMA. (Dkt. 12.)

All of the parties have filed Motions for Summary Judgment. (Dkt. 23, 27, 29, 30.) In addition, the Forest Service has filed a Motion to Strike Plaintiffs' Declarations, which Mosquito Mining has joined. (Dkt. 24, 25.) Mosquito Mining has filed a Motion to Amend/Correct the Administrative Record as well as its own Motion to Strike. (Dkt. 26, 48.) The Court will take up these Motions in this Order as follows.*fn2 DISCUSSION

1. Motions Concerning the Record

The parties have filed Motions to Strike and a Motion to Correct relating to the materials the respective parties believe are appropriate for the Court's consideration in this matter. These Motions are all subject to the same conditions for judicial review under the ADA which requires that the review of the agency decision be based upon the evidence before the agency at the time the decision in question was made. See Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) ("Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court."). There are a limited number of exceptions to the allowance of materials not contained in the administrative record: "(1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record it is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith." See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (quoting Southwest Ctr., 100 F.3d at 1450). The Court will apply these rules of APA review in addressing each Motion below.

A. Motion to Strike Letter

Attached to Plaintiffs' Combined Response/Reply to the Cross-Motions for Summary Judgment is a letter sent by the Plaintiffs to Cecilia R. Seesholtz, Forest Supervisor, dated February 14, 2012. (Dkt. 45 and 46, Ex. A.) The letter is titled "Request for Supplemental NEPA for the CuMo Exploration Project, Boise National Forest, Idaho City Ranger District, Boise County, Idaho" and purports to convey new information regarding the impacts to the Sacajawea's bitterroot in the Project area. (Dkt. 45 and 46, Ex. A.) Because the letter was not in existence until after the EA and DN/FONSI were completed, Mosquito Mining has filed a Motion to Strike arguing the letter should not be allowed as it is not properly a part of the administrative record that was before the Forest Service at the time it made its ruling. (Dkt. 48.) The Court agrees. Because the February 14, 2012 letter was not before the Forest Service at the time it made its decision, and no exception to the APA's review rules applies, it is not properly a part of the administrative record. The Motion to Strike is granted.

B. Motion to Strike Declarations

The Forest Service has filed a Motion to Strike certain of Plaintiffs' Declarations filed in support of its Motion for Summary Judgment. (Dkt. 24.)*fn3 In particular, the Declarations, or portions of the Declarations, of Leon Powers, Kathryn Didricksen, John Robison, Pam Conley, Ann Finley, and Liz Paul. (Dkt. 24.) These materials, the Forest Service argues, are extra-record opinions concerning the subject matter of this case to the extent they contain the declarants' own opinions and suppositions concerning the decision.*fn4 Plaintiffs counter that the Declarations are appropriate for the Court's consideration as they are expert declarations showing that the Forest Service failed to consider important environmental impacts which Plaintiffs claim is a "NEPA exception" to the general rule regarding the Administrative Record. (Dkt. 40.) The Forest Service maintains the opinions expressed in the Declarations should have been placed before it prior to the EA and DN/FONSI being issued and, because they were not, they should not now be allowed to be presented to the Court as the Forest Service did not have the opportunity to review/address the opinions in the Declarations before making its decisions.

The Plaintiffs cite cases to support their argument of an "NEPA exception." (Dkt. 40.) In one such case, National Audubon Soc. v. United States Forest Serv., the Ninth Circuit recognized that "certain circumstances may justify expanding review beyond the record" where, for example, "an allegation that an EIS has failed to mention a serious environmental consequence may be sufficient to permit the introduction of new evidence outside of the administrative record...." 46 F.3d 1437, 1447 (9th Cir. 1993) (quoting Animal Def. Council v. Hodel, 867 F.2d 1244 (9th Cir. 1989)). There the Ninth Circuit stated: the district court may extend its review beyond the administrative record and permit the introduction of new evidence in NEPA cases where the plaintiff alleges "that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug."

Id. (quoting County of Suffolk v. Sec. of the Interior, 562 F.2d at 1384-85 (citations omitted)). Thus, the Court may "look beyond the record insofar as it is intended to show that [the agency's] research or analysis was inadequate." Headwaters, Inc. v. BLM Medford Dist., 665 F. Supp. 873, 876 (D.Or. 1987). In other words, evidence outside the record may be admissible if such evidence is "necessary to determine whether the agency has considered all relevant factors and has explained its decision...." Southwest Ctr., 100 F.3d at 1450.

As to the Declarations of Powers and Robison, the Court finds these do not fall within any exception to the APA rule as they do not raise matters the Forest Service failed to analyze nor are they necessary for the Court to use in order to determine whether the agency has considered all relevant factors and has explained its decision. The Motion to Strike is granted as to those Declarations. As to the Declarations of Finley, Conley, Paul, and the remainder of Robison's Declaration, these relate to the Plaintiffs standing and, to that end, are not challenged by the Motion to Strike. However, as to the Declaration of Kathryn Didricksen, the Court finds this material to be necessary to determine whether the Forest Service considered all relevant factors and explained its decision in regards to the Project's impact on groundwater.

During the public commenting period, Plaintiffs raised their concern that the Project's drilling could alter groundwater hydrology resulting in increased flows from adjacent areas previously contaminated with historic mining waste. (CU046319.) The Forest Service responded stating "[n]o baseline groundwater studies were conducted because there are no expected impacts to groundwater...." (CU050755.) The Forest Service's position being that baseline studies were unnecessary because the type of closed drilling that would be used in the Project only has a nominal potential to affect groundwater. (CU046319.) Plaintiffs take issue with this response, pointing to Ms. Didricksen's Declaration in support of their contention that the Forest Service's response failed to properly consider this concern and explain its decision. Because the matters raised in the Didricksen Declaration are "necessary to determine whether the agency has considered all relevant factors and has explained its decision," the Court will deny the Motion to Strike as to that particular Declaration. Southwest Ctr., 100 F.3d at 1450.

C. Motion to Correct

In support of its Motion for Summary Judgment as to the NFMA Claim and Motion to Dismiss, Mosquito Mining has filed a Motion to Correct Omission from Administrative Record to add an "Approval Letter" and attachments which the Forest Service apparently sent to Mosquito Mining on August 30, 2011 approving its Plan of Operations ("PoO"). (Dkt. 26.) These materials were created after the EA and DN/FONSI were issued in February of 2011. They show, Mosquito Mining argues, the process by which it must follow in order to obtain approval to move forward in the Project where construction in any RCA is contemplated. The Forest Service disagrees with the Motion and maintains the record is complete as filed as it includes the evidence before the agency at the time the decision was made. (Dkt. 39.) Likewise, the Plaintiffs oppose the Motion as it seeks to improperly include post-decision documents into the record. (Dkt. 41.)

The Court has reviewed the parties arguments and denies the Motion to Correct.

This action challenges the Forest Service's February 2011 EA and DN/FONSI for the CuMo Project. The materials sought to be admitted by Mosquito Mining were not in existence until August 30, 2011. No exception to the general rule for administrative record review under the APA applies here. As such, the materials are not properly before the Court in this APA review case and the Motion is denied.

2. Motions for Summary Judgment

A. NEPA Standard of Review

Because NEPA does not contain a separate provision for judicial review, we review an agency's compliance with NEPA under the APA, 5 U.S.C. § 706(2)(A). Ka Makani O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 958 (9th Cir. 2002) (citing Churchill Cnty. v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001)). Judicial review of administrative agency decisions under the APA is based on the administrative record compiled by the agency-not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). Courts may resolve APA challenges via summary judgment. See Nw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a).

Claims alleging a violation of NEPA are governed by two standards of review. See Price Rd. Neighborhood Ass'n, Inc. v. United States Dept. of Transp., 113 F.3d 1505, 1508 (9th Cir. 1997) (finding that two standards govern the review of agency actions involving NEPA); Alaska Wilderness Rec. & Tour. v. Morrison, 67 F.3d 723 (9th Cir.1995). Factual or technical disputes, which implicate substantial agency expertise, are reviewed under the "arbitrary and capricious" standard. Id. (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376-77 (1989)). Legal disputes, however, are reviewed under the less deferential "reasonableness" standard. Id. (citing Alaska Wilderness, 67 F.3d at 727).

In general, courts must grant substantial deference to the decisions and actions of federal agency defendants in adopting and implementing certain agency activities. Kettle Range Conservation Grp. v. United States Forest Serv., 148 F.Supp.2d 1107 (E.D. Wash. 2001). NEPA "does not mandate particular results, but simply describes the necessary process" that an agency must follow in issuing an EIS. Id. (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). Accordingly, when an agency reaches a decision based on its expert review of the facts, a reviewing court should determine only whether the decision was "arbitrary or capricious." Id. (citing Marsh, 490 U.S. at 378). In other words, "the reviewing court 'must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.'" Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). The "reasonableness" standard, on the other had, is an exception to the generally applicable rule stated in Marsh, supra. This "reasonable" standard of review applies only to those "rare" cases in which the agency's decision raises legal, not factual, questions. Id. (citing Alaska Wilderness, 67 F.3d at 727). Both standards may be applied in the same case to different issues. These standards reflect the axiomatic distinction between "the strong level of deference we accord an agency in deciding factual or technical matters [and] that to be accorded in disputes involving predominantly legal questions." Id.

The issues presented in this case involve factual and/or technical matters and, therefore, the arbitrary and capricious standard applies to all issues. In reviewing an agency action under this standard, the Court must determine whether the action is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). "Normally, an agency rule would be arbitrary and capricious if the agency has 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." MotorVehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Id. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." Id. (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). In reviewing that explanation, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (citing Bowman Transp. Inc. v. Arkansas-Best Freight Syst., 419 U.S. 281, 285 (1975); Citizens to Preserve Overton Park, 401 U.S. at 416).

B. NEPA Claims

Plaintiffs allege the Forest Service violated NEPA in approving the CuMo Project by failing to conduct the necessary analysis regarding sensitive species in the area and groundwater. Specifically, Plaintiffs challenge that the Forest Service's finding of no significant impact and decision not to prepare an EIS. The Forest Service and Mosquito Mining both maintain the EA and DN/FONSI complied with NEPA.

NEPA requires preparation of an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(C); see also Ocean Advocates v. United States Army Corps of Eng'r, 402 F.3d 846, 864-65 (9th Cir. 2005). In determining whether an EIS must issue, the Ninth Circuit has stated:

Whether an action may significantly affect the environment requires consideration of context and intensity. Context delimits the scope of the agency's action, including the interests affected. Intensity refers to the severity of impact, which includes both beneficial and adverse impacts, the degree to which the proposed action affects public health or safety, the degree to which the effects on the quality of the human environment are likely to be highly controversial, the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks, and whether the action is related to other actions with individually insignificant but cumulatively significant impacts.

Center for Bio. Diversity v. National Hwy. Traffic Safety Admin., 538 F.3d 1172, 1185--86 (9th Cir. 2008) (internal quotations and citations omitted); See also Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) ("In benchmarking whether the [] Project may have a significant effect on the environment, we turn to the NEPA regulations that define "significantly." 40 C.F.R. § 1508.27 (2000). Whether a Project is significant depends on both the Project's context and its intensity."). The regulations define "significantly" in NEPA as calling for an analysis of both "context" and "intensity." 40 C.F.R. § 1508.27.*fn5 "Context" is "society as a whole (human, national), the affected region, the affected interests, and the locality." 40 C.F.R. § 1508.27(a). Intensity "refers to the severity of impact" and is evaluated or measured by certain factors including, as relevant here, "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands...." 40 C.F.R. § 1508.27(b)(3).

Generally, an agency must prepare an EIS if the environmental effects of a proposed agency action are highly uncertain. See Blue Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998) ("significant environmental impact" mandating preparation of an EIS where "effects are 'highly uncertain or involve unique or unknown risks'"); 40 C.F.R. § 1508.27(b)(5). Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data, see id. at 1213-14 (lack of supporting data and cursory treatment of environmental effects in EA does not support refusal to produce EIS), or where the collection of such data may prevent "speculation on potential. .. effects. The purpose of an EIS is to obviate the need for speculation by insuring that available data are gathered and analyzed prior to the implementation of the proposed action." Sierra Club, 843 F.2d at 1195.

In reviewing an agency's decision not to prepare an environmental impact statement, the question is "whether the agency took a 'hard look' at the potential environmental impact of a Project." Blue Mts., 161 F.3d at 1212. Courts use the arbitrary and capricious standard when reviewing an agency's decision to not complete an EIS. Id. at 1211. Under that standard, the court must determine whether the agency has taken the requisite "hard look" at the environmental consequences of the proposed actions, based its decision on a consideration of the relevant factors, and provided a convincing statement of reasons explaining why the Project's impacts are insignificant. See Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000), Blue Mts., 161 F.3d at 1211. "A full [EIS] is not required if the agency concludes after a good hard look that the proposed action will not have a significant environmental impact." Tillamook Cnty. v. United States Army Corps of Eng'rs, 288 F.3d 1140, 1144 (9th Cir. 2002).

Where, as here, the agency concludes there is no significant effect associated with the proposed Project, it may issue a FONSI in lieu of preparing an EIS. Envtl. Prot. Info. Ctr. v. United States Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006); 40 C.F.R. 1508.9(a)(1). However, an agency "cannot avoid preparing an EIS by making conclusory assertions that an activity will have only an insignificant impact on the environment." Ocean Advocates, 402 F.3d at 864. The agency "must supply a convincing ...


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