In Center for Biological Diversity v. Salazar (Feb. 4, 2013) 2013 U.S.App.LEXIS 2406, the Ninth Circuit Court of Appeal upheld the U.S. Bureau of Land Management (BLM)’s approval of the reopening of a uranium mine after a seventeen year lapse. The Court held that operations could restart without obtaining any additional environmental review.
In 1988, when the mine – located on federal land managed by BLM – originally began operations, BLM conducted an environmental assessment of the mining activities’ impact pursuant to the National Environmental Protection Act (NEPA). BLM determined the mine would not “cause any undue or unnecessary degradation of public lands” or “significantly affect the quality of the human environment.” In 2007, after seventeen years of inoperation, Denison Mines Corp. (Denison) notified BLM of the plan to restart mining operations. In preparation of reopening, BLM asked Denison to amend its level of financial guarantee by submitting a revised reclamation bond estimate. Additionally, Denison obtained “Permit to Use Right-of-Way” from Mohave County to perform needed improvements to a mine access road. Prior to Mohave County appointing Denison as its agent to maintain the access road, the County obtained a “Free Use Permit” from BLM to extract a certain amount of gravel from a separate location to maintain the access road. BLM determined that issuance of the gravel permit fell within a categorical exclusion to NEPA.
The appellants first alleged the original 1988 NEPA assessment was outdated and BLM’s issuance of the free use gravel extraction permit created the need for a supplemental environmental analysis. The Court held that said supplement analysis was not needed because the gravel permit did not constitute a “major Federal action,” and BLM’s original assessment under NEPA remained valid.
Appellants also argued BLM’s requirement and approval of an updated reclamation bond for the site was in fact a “major Federal action,” triggering the need for a supplemental NEPA analysis. The Court rejected this argument, explaining that the updated reclamation bond only required “crunching some numbers” and “increasing the bond with newly-applicable regulations.” The Court concluded this action was ministerial in nature and “such post-project-approval functions are the type of monitoring and compliance activities that this Court has determined do not trigger NEPA’s requirements.”
Next, appellants argued that BLM unlawfully limited the scope of the NEPA analysis when it applied a categorical exclusion to the gravel extraction permit. The Court rejected the appellants’ argument that BLM needed to “consider, among other things, connected actions, and indirect and cumulative environmental impacts to the proposed action.” The Court explained that this NEPA requirement only applied to environmental impact statements, not categorical exclusions. (40 C.F.R. § 1508.4.) Instead, BLM had to show the issuance of the gravel permit fell within a categorical exclusion and then explain why the permit had no “cumulatively significant” environmental effects preventing the application of the categorical exclusion. The Court found BLM had adequately shown the issuance of the free use gravel permit fell within its categorical exclusion, requiring gravel not be extracted in amounts exceeding 50,000 cubic yards or disturbing more than 5 acres. In addition, the Court found BLM had adequately shown there were no significant cumulative effects to the gravel extraction because the gravel lost would be naturally replenished by rain. The Court held the categorical exclusion applied and no additional NEPA assessment was required.
Finally, appellants argued that it was improper for BLM to reference the impacts of the 1988 assessment in the categorical exclusion. They argued BLM needed to follow NEPA procedures for “tiering” or “incorporation by reference.” The Court held “tiering is not mandatory” and “incorporation by reference” is applied to environmental statements, not categorical exclusions.
As long as the original environmental document is sound and adhered to, any new mine subject to BLM approval which may have a period of inactivity in operations, will not be required to initiate NEPA review once mining operations are ready to commence. There is a caveat, however, because California legislation recently amended the Surface Mining and Reclamation Act (SMARA) to limit the period of mine idleness to five years with an option to renew for another 5 years. This presents a potential conflict in state and federal law.
Written By: Tina Thomas, Michele Tong and Andrea Lutge (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.
The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.