No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs-Appellants,

Transcription

1 Case: /07/2012 ID: DktEntry: 31 Page: 1 of 75 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs-Appellants, v. KEN SALAZAR, SECRETARY OF THE INTERIOR, et al., Defendants-Appellees, and DENISON ARIZONA STRIP, LLC, et al., Intervenor-Defendants-Appellees. Appeal from the United States District Court for the District of Arizona No. 3:09-cv DGC FEDERAL APPELLEES RESPONSE BRIEF OF COUNSEL JOHN L. GAUDIO United States Department of the Interior Office of the Solicitor Phoenix Field Office Phoenix, Arizona IGNACIA S. MORENO Assistant Attorney General MARK R. HAAG Attorney Environment & Natural Resources Division United States Department of Justice P.O. Box 7415 Washington, D.C

2 Case: /07/2012 ID: DktEntry: 31 Page: 2 of 75 TABLE OF CONTENTS PAGE STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 3 A. Legal Framework The Mining Law of The Federal Land Policy and Management Act ( FLPMA ) The Secretary s Regulation of Mining on Public Lands The National Environmental Policy Act ( NEPA )... 8 B. Facts BLM s Review and Approval of the Arizona 1 MPO Operations Under the MPO The Gravel Permit The Secretary s Land Withdrawal Decision C. Proceedings Below SUMMARY OF ARGUMENT STANDARD OF REVIEW... 25

3 Case: /07/2012 ID: DktEntry: 31 Page: 3 of 75 ARGUMENT I. The 1988 MPO remains in effect and neither the Mining Law nor FLPMA imposes a mandatory duty on BLM to require Denison to seek approval of a new MPO A. CBD s argument that the MPO is no longer in effect is inconsistent with the provisions of Subpart 3809 that authorize temporary closures B. CBD s argument is inconsistent with the provisions of Subpart 3809 governing termination of an MPO C. CBD s argument is inconsistent with Subpart 3809 s broad definition of operations D. BLM s interpretation of its regulations is controlling because it is neither plainly erroneous nor inconsistent with the regulations E. Even if CBD were correct that the MPO is not in effect, CBD would not be able to state a claim under APA 706(1) II. III. NEPA does not require BLM to supplement the 1988 EA, because the proposed federal action that was the subject of that EA the decision whether to approve of the MPO has been completed BLM was not required to conduct a NEPA analysis before requiring Denison to update its financial guarantee ii

4 Case: /07/2012 ID: DktEntry: 31 Page: 4 of 75 IV. BLM reasonably concluded that the gravel permit falls within a NEPA categorical exclusion A. BLM considered the relevant factors and its conclusions are supported by the record B. The requirements for preparation of an EIS do not apply to CEs C. Maintenance of Mt. Trumbull Road, mining under the MPO, and the gravel permit are not connected actions D. The gravel permit is consistent with BLM s free use regulations CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iii

5 Case: /07/2012 ID: DktEntry: 31 Page: 5 of 75 CASES: TABLE OF AUTHORITIES Alaska Center for the Environment v. U.S. Forest Serv., 189 F.3d 851 (9th Cir. 1999) Am. Radio Relay League, Inc. v. F.C.C., 524 F.3d 227 (D.C. Cir. 2008)... 26, 27 Auer v. Robbins, 519 U.S. 452 (1997)... 27, 30, 38 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983)... 42, 56 Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996)... 10, 52, 57 Center for Biological Diversity v. Department of the Interior, 623 F.3d 633 (9th Cir. 2010) Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) Cold Mountain v. Garber, 375 F.3d 884 (9th Cir. 2004)... 9, 43, 44, 45 Ctr. for Biological Diversity v. Salazar, D. Az. No. 09-cv-08207, Dkt. 71 (June 17, 2010)... 20, 23 Department of Transportation v. Public Citizen, 541 U.S. 752 (2004)... 50, 51 Gardner v. U.S. Bureau of Land Management, 638 F.3d 1217 (9th Cir. 2011)... 4, 39, 40 Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115 (10th Cir. 2009)... 43, 45 iv

6 Case: /07/2012 ID: DktEntry: 31 Page: 6 of 75 Heckler v. Chaney, 470 U.S. 821 (1985)... 27, 41, 47 Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) Home Builders Ass n of Northern Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010)... 30, 32 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007)... 27, 38 Lujan v. Nat l Wildlife Fed n, 497 U.S. 871 (1990) Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989)... 8, 9, 27, 43, 47, 48 McFarland v. Kempthorne, 545 F.3d 1106 (9th Cir. 2008) Mineral Policy Center v. Norton, 292 F. Supp. 2d 30 (D.D.C. 2003) Ness Inv. Corp. v. Dep t of Agriculture, 512 F.2d 706 (9th Cir. 1975) Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435 (9th Cir. 1990) Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)... 9, 39, 43-45, 48, v

7 Case: /07/2012 ID: DktEntry: 31 Page: 7 of 75 Or. Natural Res. Council Action v. BLM, 150 F.3d (9th Cir. 1998) Ranchers Cattlemen Action Legal Fund v. U.S. Dep t of Agric., 499 F.3d 1108 (9th Cir.2007) Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)... 8, 42 Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994)... 9 Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988)... 9, 47, 49 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) United States v. Curtis-Nevada Mines, 611 F.2d 1277 (9th Cir. 1980)... 4 West v. Sec y of Dept. of Transp., 206 F.3d 920 (9th Cir. 2000) Wong v. Bush, 542 F.3d 732 (9th Cir. 2008)... 52, 57 vi

8 Case: /07/2012 ID: DktEntry: 31 Page: 8 of 75 STATUTES: Administrative Procedure Act: 5 U.S.C U.S.C. 701(a)(2)... 27, 47 5 U.S.C. 706(1)... 26, 40, 41 5 U.S.C. 706(2) U.S.C. 706(2)(A)... 26, 41, U.S.C U.S.C Mineral Leasing Act of 1920: 30 U.S.C U.S.C. 28f U.S.C U.S.C Materials Act of 1947: 30 U.S.C. 601 et seq National Environmental Policy Act: 42 U.S.C. 4332(C)... 8, 9 42 U.S.C Federal Land Policy and Management Act: 43 U.S.C U.S.C. 1732(b) U.S.C U.S.C vii

9 Case: /07/2012 ID: DktEntry: 31 Page: 9 of 75 RULES AND REGULATIONS: Fed. R. App. P. 32(a)(7)(C) Fed. R. App. P. 4(a)(1)(B) C.F.R (p) C.F.R C.F.R (b) C.F.R (c) C.F.R (e) C.F.R C.F.R (c)(1)... 9, C.F.R (c)(1)(ii) C.F.R C.F.R (a) C.F.R (b)(2)... 10, 52, C.F.R , 11, 53, 57, C.F.R (a) C.F.R C.F.R (a) C.F.R (a)(1) C.F.R (a)(1)(ii) C.F.R (c) C.F.R viii

10 Case: /07/2012 ID: DktEntry: 31 Page: 10 of C.F.R (c)... 12, C.F.R , C.F.R , 17, C.F.R. Part C.F.R. Subpart , 13, 31, 35, 36, C.F.R C.F.R (a) (1987) C.F.R (c)(5) (1987)... 6, C.F.R (c)(6) (1987) C.F.R (1987) C.F.R (1987) C.F.R (1987)... 6, 7 43 C.F.R (c) C.F.R C.F.R (c) C.F.R , 6 43 C.F.R (a) C.F.R (b) C.F.R (b)(3)... 6, C.F.R (b)(4) C.F.R (b)(5) C.F.R (a)(3)... 6 ix

11 Case: /07/2012 ID: DktEntry: 31 Page: 11 of C.F.R C.F.R (a) C.F.R , 8 43 C.F.R (a)(6) C.F.R , C.F.R C.F.R (a)(1)... 30, C.F.R (a)(1)(ii) C.F.R (a)(3)... 7, 30, C.F.R (a)(4) C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R (a) C.F.R , 8, C.F.R (a) C.F.R (b)(2)... 7, C.F.R , 8 43 C.F.R , 50 x

12 Case: /07/2012 ID: DktEntry: 31 Page: 12 of C.F.R (b) C.F.R C.F.R , C.F.R , C.F.R , Fed. Reg. 7,8902 (Nov. 26, 1980) Fed. Reg. 34,263 (July 28, 1983) Fed. Reg. 69,998 (N0v. 21, 2000)... 5, 6, 30, 32, 35, 37, 39, Fed. Reg. 54,834 (Oct. 30, 2001) Fed. Reg. 10,866 (Mar. 8, 2004) Fed. Reg. 61,292 (Oct. 15, 2008) Fed. Reg. 35,887 (July 21, 2009) Fed. Reg. 2,563 (Jan. 18, 2012)... 19, 20 MISCELLEANOUS: BLM NEPA Handbook, H (Jan. 2008)... 11, 12 xi

13 Case: /07/2012 ID: DktEntry: 31 Page: 13 of 75 GLOSSARY ADEQ BLM CBD CE CEQ EA EIS FLPMA FUP FONSI MPO NEPA UUD Arizona Department of Environmental Quality Bureau of Land Management Appellants Center for Biological Diversity, et al. categorical exclusion Council on Environmental Quality environmental assessment environmental impact statement Federal Land Policy and Management Act free use permit finding of no significant impact mining plan of operations National Environmental Policy Act unnecessary or undue degradation xii

14 Case: /07/2012 ID: DktEntry: 31 Page: 14 of 75 STATEMENT OF JURISDICTION District Court The district court had jurisdiction under 28 U.S.C (federal question). Appellate Court The district court entered final judgment as to all claims of all parties on October 7, Dkt. 185; ER 6-7; see also ER This Court has jurisdiction under 28 U.S.C Appellants filed their notice of appeal on November 28, 2011 (ER 611), within the time allowed under Fed. R. App. P. 4(a)(1)(B). STATEMENT OF THE ISSUES This case arises out of the operation of a uranium mine located on BLM-managed public lands in Mohave County, Arizona. The mine, known as Arizona 1 ( Mine ), is operated by Intervenor-Defendant Denison Arizona Strip, et al. (collectively Denison ) pursuant to a mining plan of operations ( MPO ) the United States Bureau of Land Management ( BLM ) approved in Denison renewed active mining in 2009 after a 17-year hiatus, during which time the Mine was 1 Dkt. refers to the court document number. ER refers to Appellants Excerpts of Record. SER refers to the Supplemental Excerpts of Record. 1

15 Case: /07/2012 ID: DktEntry: 31 Page: 15 of 75 managed under the approved MPO s interim management and temporary closure provisions and subject to BLM field inspections and compliance reports. Plaintiffs-Appellants Center for Biological Diversity, Grand Canyon Trust, Sierra Club, Kaibab Band of Paiute Indians, and Havasupai Tribe (collectively CBD ) allege that the Secretary of the Interior and BLM have violated the Mining Law of 1872 ( Mining Law ), 30 U.S.C ; the Federal Land Policy and Management Act ( FLPMA ), 43 U.S.C ; and the National Environmental Policy Act ( NEPA ), 42 U.S.C , by failing to take what CBD contends are required actions with respect to the ongoing operation of the Mine. CBD also alleges NEPA violations in connection with a separate 2008 BLM permit authorizing Mohave County to use gravel from a five-acre borrow pit on BLM-managed public land for maintenance of county roads, including the county road used for access to the Mine. The issues on appeal are: I. Whether, as a result of the temporary closure of the Mine, the MPO automatically terminated and BLM therefore has a 2

16 Case: /07/2012 ID: DktEntry: 31 Page: 16 of 75 mandatory duty under the Mining Law and FLPMA to require Denison to seek approval of a new MPO. II. Whether BLM s 1988 decision to approve the MPO is an ongoing major Federal action, and BLM therefore has a mandatory duty under NEPA to supplement its analysis of the environmental effects of that 1988 decision. III. Whether BLM violated NEPA by failing to perform an environmental review before requiring Denison to update its reclamation bond for the Mine. IV. Whether BLM s determination that its decision to issue the gravel permit to Mohave County was covered by a NEPA categorical exclusion was arbitrary and capricious. STATEMENT OF THE CASE A. Legal Framework 1. The Mining Law of 1872 The Mining Law opens federal lands to exploration and authorizes miners to locate mining claims and to secure exclusive rights to mine those claims, subject to federal regulation and state, territorial, and local regulations not in conflict with federal law. See 30 U.S.C. 22. Of 3

17 Case: /07/2012 ID: DktEntry: 31 Page: 17 of 75 relevance here, and in contrast to the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and the Materials Act of 1947, 30 U.S.C. 601 et seq., the Mining Law does not require claimants to diligently develop or extract minerals from the claim within a certain timeframe. United States v. Curtis-Nevada Mines, 611 F.2d 1277, (9th Cir. 1980). Rather, claimants maintain their claims through payment of an annual maintenance fee. 30 U.S.C. 28f. 2. The Federal Land Policy and Management Act ( FLPMA ) FLPMA authorizes the Secretary of the Interior to manage the public lands for multiple uses, which include use of the land s renewable and non-renewable resources, recreation, and preservation of natural values. FLPMA directs the Secretary, by regulation or otherwise, to take any action necessary to prevent unnecessary or undue degradation or UUD of the public lands. 43 U.S.C. 1732(b). Section 1732(b) leaves BLM a great deal of discretion in deciding how to achieve these broad objectives. Gardner v. U.S. Bureau of Land Management, 638 F.3d 1217, 1222 (9th Cir. 2011) (citation omitted). Rather than define UUD in FLPMA, Congress delegated the authority to do so to the Secretary. 43 U.S.C

18 Case: /07/2012 ID: DktEntry: 31 Page: 18 of The Secretary s Regulation of Mining on Public Lands As authorized by the Mining Law and FLPMA, the Secretary has promulgated regulations governing mining on public lands. 43 C.F.R. Subpart The regulations define UUD and create a regulatory scheme whereby a mine operator must obtain BLM approval of an MPO before commencing mining activities greater than casual use. 43 C.F.R (2011); id (a) (1987). 2 The MPO must explain in detail what surface-disturbing activities the operator intends to undertake and how the operator will comply with all applicable local, state, and federal mining and environmental regulations. 43 C.F.R (2011); id (a) (1987). The MPO must also include an interim management plan describing the measures to be taken during periods of temporary closure or inactivity, see id (b)(5) (2011); id (c)(6) (1987), and a reclamation 2 BLM promulgated the original Subpart 3809 regulations in 1980, and amended the regulations in 2000 and Fed. Reg (Nov. 26, 1980); 65 Fed. Reg. 69,998 (Nov. 21, 2000); 66 Fed. Reg (Oct. 30, 2001). BLM approved the Arizona 1 MPO under the original regulations, as published in the then-current 1987 Code of Federal Regulations. Unless otherwise noted, citations in this brief are to the current regulations, as published in the 2011 Code of Federal Regulations. 5

19 Case: /07/2012 ID: DktEntry: 31 Page: 19 of 75 plan that identifies how the mine site will be restored once operations permanently cease. Id (b)(3), (b)(4) (2011); id (c)(5) (1987). Consistent with the absence of a diligence requirement in the Mining Law, the regulations do not require that the MPO include a set expiration date. See 65 Fed. Reg. 69,998, 70,053 (Nov. 21, 2000) (declining to adopt a commenter s suggestion that BLM establish a term or duration after which an MPO would expire); id. at 70,054 (explaining that the final regulations do not require termination of an MPO after five years of inactivity). When reviewing a proposed MPO, BLM considers whether the proposed activities will cause UUD, prepares an environmental analysis under NEPA, and consults with other government agencies as appropriate. See 43 C.F.R (a)(3) (2011); see also id , (1987). After BLM approves an MPO, the operator must post and maintain an adequate financial guarantee to ensure reclamation of the approved surface disturbance. Id (2011); see also id (1987). An operator s authorization to conduct surface-disturbing activities under an MPO is subject to the operator s ongoing compliance 6

20 Case: /07/2012 ID: DktEntry: 31 Page: 20 of 75 with the MPO and applicable regulations, including standards to avoid UUD and all pertinent federal and state laws. 43 C.F.R (2011); id (1987). BLM has the authority to inspect an approved mining site at any time to confirm that the operator is not deviating from, or exceeding the disturbance approved under, the MPO. Id (a) (2011). If BLM determines that an operator is causing UUD or deviating from its MPO, or learns that the operator is violating any applicable state or federal regulation, BLM may order the operator to suspend work, issue a noncompliance order, revoke the MPO, or seek criminal penalties if appropriate. Id ,.601(b)(2),.602,.604,.700. In addition, BLM has discretion to terminate an MPO if a project is inactive for five consecutive years. Id (a)(3). If BLM decides to terminate an MPO, it may order final closure and reclamation. Id. Once the operator completes final closure and reclamation, BLM reviews the reclamation work. If BLM deems the work unsatisfactory, BLM can order further efforts or do the work itself using the company s financial guarantee. Id BLM also may terminate an MPO and initiate bond forfeiture to cover costs 7

21 Case: /07/2012 ID: DktEntry: 31 Page: 21 of 75 of closure and reclamation if it determines that the operator has abandoned the project. Id (a)(4). As discussed below, the regulations set out a detailed process for terminating an MPO, which generally requires notice to the operator, an affirmative decision by BLM, and opportunities for an informal hearing, administrative appeal, and judicial review. See 43 C.F.R ,.602,.800,.801, The National Environmental Policy Act ( NEPA ) NEPA serves the dual purpose of informing agency decision makers of the environmental effects of proposed major federal actions and ensuring that relevant information is made available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA imposes procedural rather than substantive requirements. Id. at 351; Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989). NEPA requires a federal agency proposing a major Federal action[] significantly affecting the quality of the human environment to prepare an Environmental Impact Statement ( EIS ) analyzing the potential impacts of the proposed action and possible alternatives. 42 U.S.C. 4332(C). To determine whether an EIS is required, an agency may 8

22 Case: /07/2012 ID: DktEntry: 31 Page: 22 of 75 prepare an environmental assessment ( EA ). 40 C.F.R (b), If the agency concludes that no significant environmental impacts will occur, the agency may issue a Finding of No Significant Impact ( FONSI ), and no EIS is required. See 40 C.F.R , (c), (e), ; Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, (9th Cir. 1994). The requirement for an agency to prepare an EIS arises only when a major Federal action is proposed. Sierra Club v. Penfold, 857 F.2d 1307, 1313 (9th Cir. 1988) (quoting 42 U.S.C. 4332(C)). Similarly, the requirement for an agency to prepare a supplemental EIS arises only if there remains major Federal action to occur. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 73 (2004) ( SUWA ) (quoting Marsh, 490 U.S. at 374) (internal quotation marks and alteration omitted); see 40 C.F.R (c)(1); Cold Mountain v. Garber, 375 F.3d 884, 892 (9th Cir. 2004). NEPA regulations instruct agencies to identify classes of actions that normally do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in 9

23 Case: /07/2012 ID: DktEntry: 31 Page: 23 of 75 implementation of these regulations. 40 C.F.R , ; West v. Sec y of Dept. of Transp., 206 F.3d 920, 927 (9th Cir. 2000). Such actions are categorically excluded from the requirement of preparing an EA or an EIS. 40 C.F.R (b)(2). Categorical exclusions ( CEs ) allow agencies to avoid unnecessary documentation of minor environmental effects so they can focus their environmental review efforts on major actions that will have a significant effect on the environment. See 48 Fed. Reg. 34,263, 34,265 (July 28, 1983); 40 C.F.R (p). An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir. 1996). An agency s NEPA procedures including its categorical exclusions must be published in the Federal Register, subjected to public comment, and submitted to CEQ for review before they become final. 40 C.F.R (a). In addition, the agency s procedures for CEs must provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect and 10

24 Case: /07/2012 ID: DktEntry: 31 Page: 24 of 75 therefore may require the agency to prepare an EA or EIS. 40 C.F.R Consistent with the CEQ regulations, the Department of the Interior has adopted (and subsequently revised) procedures for compliance with NEPA including categorical exclusions and extraordinary circumstances after notice and comment, publication in the Federal Register, and review by CEQ. See 73 Fed. Reg. 61,292 (Oct. 15, 2008); 69 Fed. Reg. 10,866 (Mar. 8, 2004). The procedures are set out in the Code of Federal Regulations, 43 C.F.R. Part 46; the Departmental Manual ( DM ); and the BLM NEPA Handbook, H (Jan. 2008). 3 The procedures include two categorical exclusions that are of relevance here. The first covers [r]outine financial transactions including such things as... guarantees [and] bonds[.] 43 C.F.R (c); see also ER The second covers disposal of mineral materials, such as sand, stone, gravel... in amounts not 3 The BLM NEPA Handbook is available at _Management/policy/blm_handbook.Par File.dat/h pdf 11

25 Case: /07/2012 ID: DktEntry: 31 Page: 25 of 75 exceeding 50,000 cubic yards or disturbing more than 5 acres, except in riparian areas. 516 DM 11.9 F (10); BLM NEPA Handbook, Appen. 4 at 152. In addition, the Department s NEPA procedures list the extraordinary circumstances under which actions otherwise covered by a CE will require additional NEPA analysis. 43 C.F.R (c), One such extraordinary circumstance is when the proposed action has a direct relationship to other actions with individually insignificant but cumulatively significant environmental effects. Id. at (f); see also ER 443. B. Facts 1. BLM s Review and Approval of the Arizona 1 MPO In 1988, following four years of work under an exploration plan, Denison s predecessor in interest Energy Fuels Nuclear submitted a proposed MPO for the Mine to BLM for approval. See ER 567. BLM reviewed the proposal, took public comment, and prepared an EA. ER 488. The EA includes analysis of the project s potential impacts on air (ER , ), surface water (ER 508, ), and groundwater (ER , ), as well as the potential radiogenic impacts of 12

26 Case: /07/2012 ID: DktEntry: 31 Page: 26 of 75 mining operations, ore stockpiles, and ore transport. ER , ; see also ER With respect to groundwater, the EA explains that the bottom of the proposed mine would be approximately 1,400 feet above the regional water table within the Redwall-Muav aquifer, and that the geological formation at Arizona 1 from which the uranium is to be mined (known as a breccia pipe ) is effectively impermeable. ER 546. As a result, BLM found that the potential for any direct impact on water quality or quantity within the Rewall-Muav limestone aquifer is negligible. ER 547. In addition, BLM explained that the strata between the proposed depth of mining and the uppermost Redwall-Muav aquifer include thick sequences of highly absorptive mudstone and limestone, and that absorption of heavy metal and radioactive constituents on the surfaces of clays as well as chemical reactions in the rock strata would tend to minimize or eliminate any short-term or long-term potential water quality impacts. ER As required by BLM regulations (43 C.F.R. Subpart 3809), the MPO includes provisions governing management of the Mine during periods of temporary closure. ER Likewise, the EA discusses 13

27 Case: /07/2012 ID: DktEntry: 31 Page: 27 of 75 the possibility that, over the life of the Mine, there could be periods of non-operation. 4 ER BLM ultimately determined that the proposed project would not have a significant impact on the human environment and found the proposed MPO to be complete and consistent with the Mining Law, FLPMA, and the Subpart 3809 Regulations. ER On May 9, 1988, BLM issued a decision record approving the MPO. ER 577. BLM s 1988 EA and approval of the MPO have never been challenged. 2. Operations Under the MPO Following approval of the MPO, Energy Fuels Nuclear began constructing the Mine. ER 366. In 1992, after the mine shaft was substantially completed, Energy Fuels Nuclear placed the Mine on standby or interim management status. ER 366, 373. International Uranium Corporation, USA acquired the Mine in 1997, and merged with Denison in SER 745. The Mine remained on interim management status until See SER 579. Throughout this period, 4 The MPO and decision record state that mining and reclamation at Arizona 1 are expected to take approximately 10 years. ER 588, 567. But contrary to CBD s suggestion (Br. 20), the MPO does not set an expiration date or limit operations to that time period. 14

28 Case: /07/2012 ID: DktEntry: 31 Page: 28 of 75 BLM conducted field inspections of the Mine and prepared compliance reports. ER At no time did BLM determine that the Mine s surface disturbance and occupancy of the public lands was not authorized by the MPO or not in accordance with applicable regulations. BLM has never undertaken an enforcement action to terminate the MPO. Between 2007 and 2009, Denison advised BLM of its intention to begin production from the mine (SER 739, 742, 747, 748), posted an updated financial guarantee with BLM and the Arizona Department of Environmental Quality ( ADEQ ) (SER 674, 704), and obtained updated Aquifer Protection and Air Quality permits from ADEQ. ER 342, SER 77, 580. Denison also obtained a Permit to use Right-Of-Way from Mohave County to perform maintenance and minor road improvements on Mt. Trumbull Road within the County s right-of-way. ER 449, 453, 316. Denison began extracting ore from the Mine in December See SER 579. In the years since Denison s acquisition, BLM has continued to inspect the Mine and monitor the surrounding public lands. SER

29 Case: /07/2012 ID: DktEntry: 31 Page: 29 of 75 CBD does not allege that Denison is violating the MPO or any of its State or federal permits. 3. The Gravel Permit In 1986, BLM issued Mohave County a right-of-way to maintain and repair 35 miles of Mt. Trumbull Road as a public county road. ER Since 1986, the County has maintained the road using gravel from a variety of sources. ER 71-72, SER 632. The road provides access to the Arizona 1 access road and to cultural and recreational sites on the Arizona Strip. See ER 542. In early 2008, Mohave County applied to BLM for a Free Use Permit ( FUP or the gravel permit ) to use up to 35,000 cubic yards of gravel from Robinson Wash to conduct road maintenance within the existing Mt. Trumbull Road right-of-way. See ER Because the County sought less than 50,000 cubic yards of gravel, the proposed action potentially fell within the BLM categorical exclusion for the disposal of 50,000 cubic yards or less of certain mineral materials including gravel. 516 DM 11.9 F (10); BLM NEPA Handbook, Appen. 4 at 152. Accordingly, BLM analyzed the proposed permit under the criteria established in BLM s NEPA Handbook. ER , 71-73; 16

30 Case: /07/2012 ID: DktEntry: 31 Page: 30 of 75 SER BLM determined that, historically, gravel had been removed from the Robinson Wash for maintenance purposes and that, because the gravel would be replenished during future storm events, there would be little need for any reclamation measures. ER 397, BLM also determined that extraction would be limited to an area of less than five acres where gravel had been previously extracted and that the gravel would be removed in accordance with approved conservation practices so to preserve to the maximum extent feasible all scenic, recreational, watershed, and other land and resource values. ER 397. BLM also found that issuance of the gravel permit was consistent with the Arizona Strip District Resource Management Plan, state and federal laws related to cultural resources, and applicable requirements for the protection of plants, wildlife, and other natural resources. ER 398. BLM considered potential impacts under the criteria established in the Department s NEPA implementation procedures (43 C.F.R ) and BLM s NEPA Handbook for identifying extraordinary circumstances when using a CE. ER 400, BLM also consulted with Arizona state game and fish officials as well as the environmental 17

31 Case: /07/2012 ID: DktEntry: 31 Page: 31 of 75 coordinator for the Kaibab Paiute Indian Tribe, 5 who voiced no objection to the gravel permit. See SER 637. BLM ultimately determined that no extraordinary circumstances existed and that further NEPA analysis was not required, and issued the permit in June, ER , Mohave County has authorized Denison, as its agent, to use the gravel to carry out road maintenance. See SER The Secretary s Land Withdrawal Decision In July, 2009, BLM published notice of the Secretary of the Interior s proposal to withdraw certain public lands in the Northern Arizona from location and entry under the Mining Law. Notice of Proposed Withdrawal, 74 Fed. Reg. 35,887 (July 21, 2009). The Notice temporarily segregated or closed the designated lands to new mining claims in order to allow time for various studies and analyses prior to making a final decision on whether or not to proceed with a withdrawal. Id. On January 9, 2012, after completing an EIS and other studies, the Secretary signed a Public Land Order withdrawing approximately 5 The Tribe is a plaintiff-appellant in this case. 18

32 Case: /07/2012 ID: DktEntry: 31 Page: 32 of 75 one million acres from location and entry for 20 years. ER 48; SER 475; 77 Fed. Reg (Jan. 18, 2012). The withdrawal is intended to slow[] the pace of hardrock mineral development, ER 59, and allow the Department of the Interior to gather additional information regarding the impacts of uranium mining. ER The withdrawal is subject to valid existing rights, and expressly contemplates that mining at Arizona 1 which is located within the area covered by the withdrawal and several other previously-approved mines in the area will proceed. ER 49, 53-54, 59 ( As development moves forward on previously-approved mines * * * the impacts associated with uranium mining on the Grand Canyon Watershed will continue to be monitored and studied. Based on any such monitoring and study, it may well be that these lands or a portion thereof will be appropriate for re-opening under the Mining Law at some point in the future. ). C. Proceedings Below CBD filed its initial complaint on November 16, 2009 (Dkt. 1) and moved for a preliminary injunction on April 8, Dkt. 36. The district court denied the motion on the ground that CBD failed to demonstrate a likelihood of success on the merits. Ctr. for Biological 19

33 Case: /07/2012 ID: DktEntry: 31 Page: 33 of 75 Diversity v. Salazar, D. Az. No. 09-cv-08207, Dkt. 71 (June 17, 2010); SER 12. CBD filed an interlocutory appeal and sought an injunction pending appeal, which the district court denied. Id., Dkt. 102 (Aug. 12, 2010); SER 7. CBD then sought an emergency injunction pending appeal in this Court, which a motions panel denied. Ctr. for Biological Diversity, 9th Cir. No ( Order, Aug. 31, 2010); SER 4. Thereafter, a merits panel of this Court affirmed the district court s denial of the preliminary injunction, holding that CBD failed to raise serious questions on the merits of its FLPMA and NEPA claims. Id. (Unpub. Mem., May 6, 2011); SER 2. The district court then addressed the merits of CBD s claims in a pair of orders. The first, dated May 27, 2011, granted summary judgment for BLM on Counts One, Two, Three and Five of CBD s Third Amended Complaint. ER 11. Counts One and Three alleged that BLM violated FLPMA because the MPO became ineffective under 43 C.F.R when Denison s predecessor suspended active mining in 1992, and BLM was therefore required to approve a new MPO before Denison could resume mining in ER 15. The district court rejected these claims based 20

34 Case: /07/2012 ID: DktEntry: 31 Page: 34 of 75 on a thorough analysis of the Subpart 3809 regulations. The court found ambiguities in the regulations, but concluded that BLM s view that an approved MPO remains in effect during periods of temporary closure is consistent with the language and intent of the regulations. ER Considered as a whole, the regulations clearly suggest that a plan of operations does not become ineffective when mine operations cease temporarily. ER 16. In addition, the court found that BLM s interpretation is entitled to deference because it is not plainly erroneous or inconsistent with the regulations. ER Turning to CBD s NEPA claims, the court rejected Count Two, which alleged that BLM violated NEPA by failing to supplement the 1988 EA. The court found that the relevant major Federal action for purposes of NEPA was BLM s decision whether to approve the MPO, and that BLM completed that action in 1988 when it approved the MPO. ER The court reasoned that BLM s continuing monitoring and oversight of Denison s compliance with the MPO and BLM regulations including requiring Denison to update its reclamation bond did not transform BLM s 1988 decision to approve the MPO into an ongoing major federal action such that BLM was obliged to 21

35 Case: /07/2012 ID: DktEntry: 31 Page: 35 of 75 supplement its 1988 EA. ER 26. The court also rejected Count Five, which alleged that BLM violated NEPA by failing to undertake a NEPA analysis before requiring the increase in the reclamation bond, finding that the change in the bond amount did not constitute major federal action for purposes of NEPA. ER 36. As to Count Four CBD s NEPA challenge to the gravel permit the district court found that BLM had failed to adequately explain the basis for its finding that there were no extraordinary circumstances specifically, a direct relationship to other actions with individually significant but cumulatively significant environmental effects that would preclude issuance of the permit under a NEPA categorical exclusion. ER 33-34; see 43 C.F.R (f). The court remanded to BLM for a more complete explanation. ER 34. BLM subsequently provided its explanation and supplemented the administrative record. See ER 3. The court allowed CBD to supplement Count Four to challenge that explanation, and after supplemental briefing, granted summary judgment for BLM in an Order dated October 7, ER 1. The court found that BLM had provided a detailed rationale for its finding that there were no extraordinary circumstances requiring 22

36 Case: /07/2012 ID: DktEntry: 31 Page: 36 of 75 further NEPA analysis and had articulated a rational connection between the facts in the record and its conclusion. ER 6. CBD then noticed this appeal and sought an injunction pending appeal in the district court, which the district court denied on January 11, D. Az. No. 09-cv-08207, Dkt. 200 (Jan. 11, 2012). CBD then sought an emergency injunction pending appeal from this Court, which this Court denied on February 24, SER 1. SUMMARY OF ARGUMENT 1. CBD s assertion that BLM has a mandatory duty under FLPMA to require Denison to seek approval of a new MPO is untenable, because it is premised on CBD s incorrect view that the 1988 MPO automatically became ineffective when Denison s predecessor temporarily suspended mining in Multiple provisions of the Subpart 3809 regulations, as well as BLM s explanations in the Federal Register of the intent of the regulations, support BLM s view that a plan of operations does not automatically become ineffective when a mine operator temporarily suspends mining. 2. CBD s claim that BLM has a mandatory duty to supplement its NEPA analysis of its 1988 decision to approve the MPO fails because 23

37 Case: /07/2012 ID: DktEntry: 31 Page: 37 of 75 supplementation is required only when there remains major Federal action to occur. No such action remains here. The agency completed the relevant action the decision to approve the proposed MPO in 1988, and that long-completed action has never been challenged. 3. CBD s claim that BLM had a mandatory duty to conduct a NEPA analysis before requiring Denison to update its financial guarantee fails because BLM s action simply required Denison to comply with the regulations. That type of enforcement or compliance action is not major Federal action for purposes of NEPA. In addition, BLM s responsibility under the financial guarantee regulations is limited to ensuring that an operator s financial guarantee is adequate to cover the costs of reclamation. The regulations do not authorize BLM to revisit its prior approval of an MPO under the guise of reviewing an operator s updated financial guarantee. BLM s acceptance of Denison s updated financial guarantee thus bears an insufficient causal relationship to the environmental impacts from mining under the MPO to trigger NEPA. 4. BLM reasonably determined that its 2008 free use permit to Mohave County for the use of gravel from Robinson Wash to maintain 24

38 Case: /07/2012 ID: DktEntry: 31 Page: 38 of 75 Mt. Trumbull Road was subject to a NEPA categorical exclusion. CBD does not challenge the validity of the underlying categorical exclusion, and the record supports BLM s determination that there were no extraordinary circumstances that would render the categorical exclusion inapplicable. STANDARD OF REVIEW This Court s review of the district court s grant of summary judgment is de novo. McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir. 2008). Neither the Mining Law, FLPMA, nor NEPA provide a waiver of sovereign immunity or right of action. See Lujan v. Nat l Wildlife Fed n, 497 U.S. 871, 882 (1990); Or. Natural Res. Council Action v. BLM, 150 F.3d. 1132, 1135 (9th Cir. 1998). Accordingly, CBD seeks to pursue its claims under the limited waiver of sovereign immunity and right of action provided by Sections of the Administrative Procedure Act. Br Under Section 706(1), a court may compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. 706(1). A claim under Section 706(1) can proceed only [if] plaintiff asserts that 25

39 Case: /07/2012 ID: DktEntry: 31 Page: 39 of 75 an agency failed to take a discrete agency action that it is required to take. SUWA, 542 U.S. at 64 (emphasis in original); see also Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, (9th Cir. 2010). CBD s FLPMA claim and most of its NEPA claims arise under Section 706(1). CBD s NEPA challenge to BLM s gravel permit is reviewed under Section 706(2), which provides that a court may set aside a final agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2)(A). This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision. Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). Such deference to agency expertise is especially merited when reviewing scientific judgments and technical analyses within the agency s expertise. Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008); see also Am. Radio Relay League, Inc. v. F.C.C., 524 F.3d 227, 233 (D.C. Cir. 2008); Marsh, 490 U.S. at

40 Case: /07/2012 ID: DktEntry: 31 Page: 40 of 75 When reviewing an agency s construction of a statute, courts must give effect to clearly-expressed congressional intent. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, (1984). If the statute is silent or ambiguous with respect to an issue, however, courts defer to an agency s interpretation as long as it is based on a permissible construction of the statute. Id. at 843. Where the construction of a regulation rather than a statute is at issue, courts must give even greater, substantial deference to the agency s interpretation. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). An agency s interpretation of its own regulation is controlling unless plainly erroneous or inconsistent with the regulations. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (internal notation and citations omitted); Auer v. Robbins, 519 U.S. 452, 461 (1997). An agency s decision whether to take enforcement action is generally committed to an agency s absolute discretion. Heckler v. Chaney, 470 U.S. 821, 831 (1985) (citation omitted); see 5 U.S.C. 701(a)(2). 27

41 Case: /07/2012 ID: DktEntry: 31 Page: 41 of 75 ARGUMENT I. The 1988 MPO remains in effect and neither the Mining Law nor FLPMA imposes a mandatory duty on BLM to require Denison to seek approval of a new MPO. CBD contends (Br ) that BLM had a mandatory duty under FLPMA to require and approve a new MPO before Denison could resume active mining in This argument fails because it is entirely dependent on the false premise that the 1988 MPO automatically became ineffective when Denison s predecessor temporarily suspended active mining in the early 1990s. 6 See Br CBD bases its assertion that the 1988 MPO is no longer in effect on 43 C.F.R , which states that a plan of operations remains in effect as long as you [the operator] are conducting operations, unless BLM suspends or revokes your plan of operations for failure to comply 6 This is the same argument that CBD raised and this Court tacitly rejected in CBD s unsuccessful preliminary injunction appeal (as well as in CBD s two unsuccessful emergency motions for injunction pending appeal). SER 3, Ctr. for Biological Diversity, 9th Cir. No (Unpub. Mem., May 6, 2011, holding that CBD failed to raise serious questions on the merits ). While decisions at the preliminary injunction phase generally do not constitute the law of the case, conclusions of law made in that context are binding. Ranchers Cattlemen Action Legal Fund v. U.S. Dep t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007). 28

42 Case: /07/2012 ID: DktEntry: 31 Page: 42 of 75 with this subpart. See, e.g., Br. 22. As the district court noted, CBD s argument appears persuasive when one focuses solely on ER 16. But the court correctly recognized that the regulations are ambiguous, and that CBD s reading of Section is at odds with many other provisions of the regulations, which, when read as a whole, clearly suggest that a plan of operations does not become ineffective when mine operations cease temporarily. Id.; see Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1442 (9th Cir. 1990) ( [O]ur task is to interpret the regulation as a whole, in light of the overall statutory and regulatory scheme, and not to give force to one phrase in isolation. ) (internal quotation marks and citation omitted). As the court explained (and as discussed in detail below), the regulations (1) specifically anticipate interruptions in mining operations; (2) require that each MPO include an interim management plan to govern periods of temporary closure; (3) require that a mine operator who stops conducting operations must follow the approved interim management plan that is a required part of the MPO; and (4) authorize BLM to review mines that remain inactive for five consecutive years to determine whether BLM should terminate the 29

43 Case: /07/2012 ID: DktEntry: 31 Page: 43 of 75 MPO and direct final reclamation and closure. ER 16-18, citing, inter alia, 43 C.F.R (b)(5),.424(a)(1),.424(a)(3). Further, CBD s interpretation is contrary to BLM s intent when it promulgated the regulations. ER (citing 65 Fed. Reg. 69,998, 70, (Nov. 21, 2000)). Accordingly, the district court correctly concluded that [t]he language and intent of the regulations thus plainly support BLM s application of the regulations in this case. ER 19. And because BLM s interpretation is not plainly erroneous or inconsistent with the regulations, the court found it to be controlling. ER (citing Auer, 519 U.S. at 461; see also Home Builders Ass n of Northern Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 991 (9th Cir. 2010). 7 7 BLM has consistently taken the view that the MPO remained in effect during the years the Mine was inactive, as demonstrated by the agency s continuing inspections, its allowance of the operator s continued use and occupancy of the public lands, and the fact that the agency never initiated any enforcement action against Denison or its predecessors seeking to terminate the MPO. See ER ; SER Thus, here as in Auer, the agency s interpretation is entitled to deference. Auer, 519 U.S. at

44 Case: /07/2012 ID: DktEntry: 31 Page: 44 of 75 A. CBD s argument that the MPO is no longer in effect is inconsistent with the provisions of Subpart 3809 that authorize temporary closures. CBD s contention that the MPO is no longer in effect is inconsistent with the provisions of Subpart 3809 that address temporary closures. These provisions expressly authorize operators to temporarily suspend mining during the course of a project and require that the MPO include a plan for interim management during periods of temporary closure. The regulations both now and at the time the Arizona 1 MPO was approved make clear that temporary closures are authorized activities that may take place and indeed, may occur multiple times under a single approved MPO during the life of a mine. Moreover, there is no suggestion in any of these provisions that an MPO will automatically terminate if the operator elects to temporarily suspend active mining in accordance with the MPO s interim management provisions. Specifically, Sections (b) and (b)(5) provide that an MPO must contain an interim management plan to manage the project area during periods of temporary closure (including periods of seasonal 31

45 Case: /07/2012 ID: DktEntry: 31 Page: 45 of 75 closure). The interim management plan, in turn, must include, where applicable, (v) Plans for monitoring site conditions during periods of non-operation; and (vi) A schedule of anticipated periods of temporary closure during which you would implement the interim management plan, including provisions for notifying BLM of unplanned or extended temporary closures. Id (b)(5) (2011); see also 43 C.F.R (c)(6) (1987) (MPO shall include [m]easures to be taken during extended periods of nonoperation to maintain the area in a safe and clean manner ). Similarly, Section (a)(1)(ii) (2009) requires the operator to modify its interim management plan if the plan does not cover the circumstances of a temporary closure. In adopting these provisions, BLM explained that [a]n operator, in planning to mine, should also be able to plan under what conditions they might temporarily not mine, and how they would manage the site to prevent unnecessary or undue degradation during the temporary closure. 65 Fed. Reg. at 70,042. Consistent with these regulations, BLM s NEPA analysis of the Arizona 1 MPO discusses the possibility of temporary closures at the Mine, and the MPO includes a plan for maintaining the mine during 32