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Concerned Citizens and Retired Miners Coalition v. United States Forest Service

United States District Court, D. Arizona

September 6, 2017

Concerned Citizens and Retired Miners Coalition, et al., Plaintiffs,
v.
United States Forest Service, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge.

         Plaintiffs, a group of public interest organizations and the San Carlos Apache Tribe, brought suit against the United States Forest Service and some of its supervisors and officers. The Court allowed Resolution Copper Mining, LLC (“Resolution”) to intervene as a Defendant. Plaintiffs challenge the Forest Service's approval of a plan to gather environmental data related to the possible development of a large copper mine near Superior, Arizona. Plaintiffs filed motions for summary judgment, and Defendants filed cross-motions. For the reasons that follow, the Court will deny Plaintiffs' motions for summary judgment and grant Defendants' motions.

         I. Background.

         Resolution proposes to develop a large-scale underground copper mine near the Town of Superior, Arizona (“Main Mine”). The Main Mine would be constructed on land that Congress has directed the Forest Service to trade to Resolution in exchange for other land. See 16 U.S.C. § 539p. Resolution has submitted a General Mining General Plan of Operations (“Main Mine Proposal”). The Forest Service is in the process of developing an environmental impact statement (“EIS”) for the Main Mine Proposal. That proposal and the EIS are not at issue in this case.

         Resolution proposes to construct a mine tailings storage facility (“TSF”) in the Tonto National Forest in Pinal County, Arizona, also near the Town of Superior. A.R. 15192-93, 15196. To collect environmental data needed for the EIS on the Main Mine Proposal, and to be used in deciding whether to place the TSF at the proposed location and in designing and operating the TSF if it is approved, Resolution proposes to conduct a baseline assessment of groundwater and subsurface conditions in the proposed TSF location. The plan for this data gathering is contained in a Plan of Operations for Baseline Hydrological and Geotechnical Data Gathering Activities (“Baseline Project”). A.R. 15192.

         The Baseline Project is the subject of this litigation. The Forest Service approved the project after conducting an environmental assessment (“EA”) and issuing a Finding of No Significant Impact (“FONSI”). Plaintiffs challenge the EA as insufficient under several federal statutes.

         It is important to note that approval of the Baseline Project does not constitute approval of the Main Mine or the TSF. Those projects will be approved, if at all, only after completion of the EIS. The Baseline Project is limited in scope and duration. It includes (1) installing 16 groundwater monitoring wells, affecting approximately 4.21 acres; (2) installing 41 geotechnical drill holes and piezometers, affecting about 0.27 acres; (3) constructing 32 geotechnical test trenches, affecting approximately 1.28 acres; (4) improving about 12 miles of existing Forest Service roads; (5) creating two storage yards for materials, affecting about 2.19 acres; (6) improving and maintaining temporary access roads on previously disturbed areas, affecting approximately 3.94 acres; and (7) creating short-term temporary access roads to bring a tracked drill rig and a service truck to off-road locations, affecting 7.07 acres. A.R. 15193. The temporary access roads would be developed on already existing unauthorized roads. A.R. 15211. The short-term temporary access roads would be used for only 24 to 48 hours, and then returned to their native state. Id. The test trenches would also be filled and restored within 48 hours of initial excavation. A.R. 15218.

         Once completed, the groundwater wells would be used to gather groundwater data, including water quality, transmissivity, and hydraulic conductivity. A.R. 15212. The geotechnical drill holes and piezometers would be used to study stratigraphy and density of the subsurface and to measure groundwater levels. A.R. 15217. The test trenches would be used to study stratigraphy and other soil characteristics, as well as hydraulic conductivity (through an infiltration test). A.R. 15218. “Construction and installation of the Baseline activities is expected to take approximately six months for the 16 hydrological drill sites, nine to ten months for the 41 geotechnical drill sites, and three to four months for the 32 test trenches. Construction and installation would occur concurrently[.]” A.R. 15208.

         During the first year following construction, groundwater monitoring wells would be sampled monthly. This would require a person to travel to each well and collect a groundwater sample. During years three through ten, the wells would be sampled quarterly. At the end of the ten-year project, any remaining areas would be reclaimed. A.R. 15218.

         The Baseline Project includes more than 40 specific measures designed to protect the environment and cultural resources. A.R. 15219-23. In addition, the EA developed 16 mitigation measures. A.R. 15225-26.

         At the beginning of the EA process, the Forest Service distributed a scoping letter to more than 300 interested parties and agencies, published the scoping plan in local newspapers and online, and provided a 30-day period for scoping comments. A.R. 15201. More than 200 comments were received and evaluated. A.R. 15203. The Forest Service also initiated consultation with ten Native American tribes. A.R. 15202. These efforts included letters, invitations to engage in government-to-government consultations, and various meetings. Id.

         The Forest Service issued a draft EA in March 2015, followed by a public comment period. A.R. 9696, 10036. The final EA and FONSI were published in January 2016. A.R. 15178, 15753. An additional 45-day objection period followed. A.R. 15354; 36 C.F.R. Part 218. The public, including Plaintiffs, provided many comments to the Forest Service throughout this process.

         Plaintiffs have now filed this action to challenge the validity of the EA. Plaintiffs argue that the EA violates the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”), and the National Defense Authorization Act (“NDAA”), as well as regulations related to these statutes.

         On June 29, 2017, the Forest Service filed a Notice of New Information (Doc. 50) that will be discussed below. The notice states that the construction phase of the Baseline Project is completed and that the project is now in the monitoring phase. Doc. 50-1 at 2. “All ground disturbing drilling and trenching activities for the Baseline project are completed as of February 2017.” Id. “Disturbances associated with drilling and trenching activities for the Baseline project have been reclaimed[.]” Id. To complete the monitoring that constitutes the rest of the project, “[t]he well sites are visited by a two-person crew and data is downloaded from data loggers via laptop computers monthly from each of the wells for the initial 12 months, then on a quarterly basis throughout the remaining authorization period[.]” Id.

         Apparently, because Plaintiffs never sought to preliminarily enjoin the project, improvements of the roads and construction of the monitoring wells, boreholes, and test trenches proceeded. The Court learned this information only after the balance of this order was drafted. No party has suggested that issues raised in the summary judgment briefing are moot, and the Court assumes that NEPA compliance is still required because the project remains ongoing, albeit at the greatly reduced monitoring level. The Court accordingly will address the issues raised by the parties and will do so, as the parties do in their briefs, as though the project was yet to be implemented.

         II. Legal Standards.

         A court may set aside a final agency action under the Administrative Procedure Act (“APA”) only if the action 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.'” Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). The APA does not allow a court to overturn an agency action simply because the court disagrees with the action. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). Review under the APA generally is restricted to the administrative record. See 5 U.S.C. 706; Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001).

         NEPA “‘is our basic national charter for protection of the environment.'” Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008) (quoting 40 C.F.R. § 1500.1(a)); see 42 U.S.C. § 4331. “NEPA is a procedural statute that does not ‘mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.'” Sierra Club v. Bosworth, 510 F.3d 1016, 1018 (9th Cir. 2007) (citation omitted). NEPA requires federal agencies to perform environmental analysis before taking “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). It “seeks to make certain that agencies will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger [public] audience.” N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008) (internal quotations omitted).

         An EA is used to provide sufficient evidence and analysis to determine whether to make a finding of no significant impact or to prepare a more detailed EIS. 40 C.F.R. §§ 1501.3, 1501.4, 1508.9, 1508.11. The regulations define an EA as “a concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9. The EA should include “brief discussions of the need for the proposal, of alternatives . . ., of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” Id. An EA is reviewed using the arbitrary and capricious standard discussed above. Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior, 608 F.3d 592, 598 (9th Cir. 2010).

         III. Analysis.[1]

         A. Is the Main Mine Proposal a Connected Action?

         “[A]n agency is required to consider more than one action in a single EIS if they are ‘connected actions, ' ‘cumulative actions, ' or ‘similar actions.'” Nw. Res. Info. Ctr., Inc. v. Nat'l Marine Fisheries Serv., 56 F.3d 1060, 1067 (9th Cir. 1995) (citing 40 C.F.R. § 1508.25). Plaintiffs contend that the Main Mine Proposal is a “connected action” under the relevant regulations and therefore should have been included in the EA of the Baseline Project. Plaintiffs do not contend that the Main Mine Proposal is a “cumulative” or “similar” action.

         Actions are considered “connected” if they meet any of the following three criteria:

(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

40 C.F.R. § 1508.25(a).

         The Ninth Circuit “appl[ies] an ‘independent utility' test to determine whether multiple actions are connected so as to require an agency to consider them in a single NEPA review.” Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894 (9th Cir. 2002) (citation omitted). “Where each of two projects would have taken place with or without the other, each has ‘independent utility' and the two are not considered connected actions.” Id. (citation omitted). “Although federal agencies are given considerable discretion to define the scope of NEPA review, connected, cumulative, and similar actions must be considered together to prevent an agency from dividing a project into multiple ‘actions, ' each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.” Id. (citation and internal quotations omitted); Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006).

         Considering the three criteria set forth in 40 C.F.R. § 1508.25(a), the Court cannot conclude that the Baseline Project and the Main Mine Proposal are connected actions.

         First, Plaintiffs do not contend that the Baseline Project will automatically trigger other actions which may require environmental impact statements. The Baseline Project will generate data related to the proposed location for the TSF, and that data will be used in the EIS for the Main Mine, but the Main Mine will not be “automatically” triggered by the project. See 40 C.F.R. § 1508.25(a)(i); A.R. 15625.

         Second, Plaintiffs have not shown that the Main Mine cannot or will not proceed unless the Baseline Project is undertaken. The Main Mine, if approved, will be developed on federal land that will be transferred to Resolution and become private land. Doc. 41 at 11. The Baseline Project will gather data on federal land that will remain in the Tonto National Forest - it is not part of the land exchange with Resolution. Id. The project will gather data to evaluate the proposed site for the TSF, but Plaintiffs have identified nothing in the record to show that the Main Mine will not continue if the Baseline Project is rejected. Rather, it appears that failure to continue with the Baseline Project will impact only one small part of the Main Mine Proposal - the location of the TSF.

         Other locations have been considered for the TSF. As the Forest Service explained in response to public comments:

Authorization of the Baseline Plan would be an independent federal action that would not trigger authorization of the [Main Mine Proposal], and the Resolution Copper mine is not dependent on authorization of the Baseline Plan. As discussed in Section 3.3.10.1 of the [Main Mine Proposal], Resolution Copper evaluated a number of potential sites for tailings storage, including sites on National Forest System land, State land and private land. Resolution Copper selected the TSF location proposed in the [Main Mine Proposal] as the “most viable and least objectionable” location for the TSF. There is no information to suggest that development of the Resolution Copper Mine could not occur without authorization of the Baseline Plan or without authorization of the TSF as proposed in the [Main Mine Proposal].

A.R. 15523.

         Plaintiffs contend that the record reflects only one proposed location for the TSF and that any claim that Resolution may decide to relocate the facility is speculative. Doc. 44 at 17. But the question before the Court is whether the Main Mine “might reasonably [be] completed without the existence of the” Baseline Project. Great Basin Mine Watch, 456 F.3d at 969. The fact that Resolution presently might not be considering other TSF sites does not show that other sites could not be used, particularly when the record shows that other sites have been actively considered in the past.

         Third, the Baseline Project and the Main Mine Proposal, although clearly related, are not interdependent parts of a larger action that depend on the larger action for their justification. As noted above, the Main Mine can proceed without the Baseline Project, which focuses on only one of several possible locations for one small part of the mine - the TSF. And the Baseline Project will supply data and information that can be used to inform separate actions and proposals. Doc. 41 at 34; A.R. 10638-9. As Plaintiffs themselves note, “[t]he Baseline Plan area includes, and is adjacent or near to, other current, recent, and proposed mineral operations on the National Forest, including the ‘Copper King' exploration project, the ‘Red Top' exploration project, and the ‘Superior West Exploration Plan, ' among others projects, as well as the Resolution Cooper Mine.” Doc. 38 at 10. Furthermore, courts within the Ninth Circuit have found that data gathering and “research [have] independent value, distinct from the action itself.” Ocean Mammal Inst. v. Cohen, No. 98-CV-160, 1998 WL 2017631, at *8 (D. Haw. Mar. 9, 1998), aff'd, 164 F.3d 631 (9th Cir. 1998); accord. Greater Yellowstone Coal. v. Reese, 392 F.Supp.2d 1234, 1240 (D. Idaho 2005).

         Given these considerations, the Court finds that the Baseline Project has independent utility. Its value is not limited to possible construction and operation of the Main Mine. Nor is the EIS dependent on the Baseline Project. The independent utility of the Baseline Project and the Main Mine EIS suggests that they are not connected actions within the meaning of the regulations. Native Ecosystems Council, 304 F.3d at 894.

         District courts in this circuit have reached the same conclusion when evaluating data-gathering projects related to other larger undertakings. Greater Yellowstone Coalition, for example, considered the EA for an exploratory project to gather data related to expansion of a phosphate mine. 392 F.Supp.2d at 1237. Like the Baseline Project, the exploratory project included construction of wells and roads and would gather “geologic, hydraulic, and other environmental data.” Id. at 1237-8. The plaintiff argued that the exploratory project should have been considered in a single EIS with the mine expansion proposal because they were connected actions. Id. at 1239-40. The district court disagreed. Noting that the data gathered by the exploratory project would be used in an EIS of the mine expansion, the court emphasized that this did not mean that the mine expansion could not or would not proceed if the exploratory project was not approved. Id. at 1240. The court noted that the area covered by the exploratory project was only a small portion of the intended expansion, and that rejecting the project would only stop that small portion from going forward. Id. The court noted that “the exploratory project [did] not depend on the [mine expansion] projects for its justification” because, although “the information from the exploratory project may be used in the [mine expansion] proposal, the exploratory project has a stand-alone purpose - gathering information to allow mining in the South Manning Creek area.” Id. This reasoning applies fully to the Baseline Project.

         Ocean Mammal Institute considered an EA for a project to conduct low-frequency sonar tests on marine life. 1998 WL 2017631, at *3. The tests would be used to develop and implement a low-frequency active sonar system (“LFA System”) on military submarines, for which preparation of a separate EIS had already commenced. Id. at *5. The plaintiffs argued that the EA violated NEPA because the sonar tests and the LFA System were connected actions. Id. at *7. The court rejected this argument, finding a “meaningful distinction between the actions; one is research and the other is deployment of a submarine detection system. The research does not commit the government to deploying the LFA System, and the research does not determine the outcome of the EIS being prepared for the LFA System.” Id. The court emphasized that “research has independent value, distinct from the action itself.” Id. at *8. The same is true here.

         As Defendants note, Plaintiffs' position would create an impossible dilemma. “The Forest Service will use the data collected from [the Baseline] Project to prepare a forthcoming EIS for the [Main Mine Proposal.]” Doc. 41 at 30. As a result, “[t]here is no logical way to wrap the proposed Baseline Activities data collection into the [EIS] being conducted on the [Main Mine], because you can't make the decision on the [Main Mine] until you have baseline data collected from the proposed Baseline Activities.” Id. at 35 (quoting A.R. 10641). Stated differently, the Forest Service cannot evaluate whether to collect data and, at the same time, use that data to perform an EIS analysis. The data must precede the analysis. Plaintiffs do not respond to this practical problem. Doc. 44 at 15.[2]

         Delaying a decision on whether data should be collected until the Forest Service undertakes an EIS on the Main Mine would deprive the EIS of important data. It would thwart NEPA's purpose “to make certain that agencies will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger [public] audience.” N. Idaho Cmty. Action Network, 545 F.3d at 1153 (internal quotations omitted). As the court found in Ocean Mammal Institute, requiring a research project to be assessed together with the larger action “would trap defendants in an endless cycle whereby they are required to do research for an EIS for the [larger project], but are enjoined from doing the research because it must be included in an EIS for [that larger project].” 1998 WL 2017631, at *8.

         Citing the Ninth Circuit's decision in Native Ecosystems, Plaintiffs argue that Defendants are “breaking the [Main Mine] project up into smaller portions to avoid disclosing the impacts and informing the public of the full impacts of the proposal at the earliest possible time[.]” Doc. 44 at 17. But an agency cannot inform the public about the full impacts of a project until it has the data necessary to asses that impact. And the concerns expressed in Native Ecosystems are not present here - the Forest Service will assess all of the Main Mine Proposal in a separate EIS; it is not dividing a larger project into smaller actions that individually do not have a significant impact. 304 F.3d at 894; see also Klamath-Siskiyou Wildlands Ctr. v. Graham, 899 F.Supp.2d 948, 961 (E.D. Cal. 2012); All. to Protect Nantucket Sound, Inc. v. U.S. Dep't of the Army, 288 F.Supp.2d 64, 80-81 (D. Mass. 2003), aff'd, 398 F.3d 105 (1st Cir. 2005).

         Plaintiffs “must show that the Forest Service was arbitrary and capricious in failing to prepare one comprehensive environmental statement.” Native Ecosystems, 304 F.3d at 894. Plaintiffs have not made this showing. The Court can see no basis to conclude that the Forest Service is dividing one large project into smaller segments in order to avoid its obligation to conduct a full and complete environmental review. To the contrary, the Baseline Project will provide data that is highly relevant to the Main Mine Proposal EIS, as well as generate valuable data in an area of significant mining activity.

         B. Was there Sufficient Public Review?

         The draft EA did not address the cumulative impact of the Main Mine Proposal, but the impact was addressed in the final EA. See A.R. 15237, 15251-53. Plaintiffs contend that the omission of the cumulative impact analysis from the draft EA deprived the public of an opportunity to review and comment on that issue during formulation of the EA. Doc. 38 at 13-16.

         “One of the twin aims of NEPA is active public involvement and access to information.” Price Rd. Neighborhood Ass'n, Inc. v. U.S. Dep't of Transp., 113 F.3d 1505, 1511 (9th Cir. 1997) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). In support of this aim, the implementing regulations provide: “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40 C.F.R. § 1500.1(b). See also 40 C.F.R. §§ 1502.4(b), 1506.6.

         The Forest Service did not address the cumulative impact of the Main Mine Proposal in the draft EA because, it said, that proposal was too speculative. A.R. 9750. After receiving public comments, including extensive comments from Plaintiffs, the Forest Service changed its position and included the cumulative impacts analysis in the final EA. A.R. 15237. Plaintiffs note that the Main Mine Proposal was submitted to the Forest Service in November 2013, well before the draft EA, and that they asked that the proposal be considered a reasonably foreseeable action and that its cumulative effects be analyzed in the EA. A.R. 4355, 6854, 10787-92.

         In Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, 524 F.3d 938, 953 (9th Cir. 2008), the Ninth Circuit considered whether agencies must issue draft EAs for public comment before settling upon a final EA. The court held that “circulation of a draft EA is not required in every case” - a decision that apparently comported with every circuit that has considered the question. Id. at 952. The Ninth Circuit provided this guidance: “An agency, when preparing an EA, must provide the public with sufficient environmental information, considered in the totality of circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process.” Id. at 953. The court of appeals found that “[i]nformation about the project was widely disseminated throughout the community and environmental information was reasonably and thoroughly tendered to the public.” Id. As a result, the court refused to set aside the EA even though a draft of the document had never been issued for public comment. Id.

         In another case, the Ninth Circuit provided this explanation of NEPA requirements for issuance of an EA: “Although we have not unequivocally defined what sort of public participation is required to meet NEPA's amorphous standards, we have recognized that the level of participation required by NEPA's implementing regulations is not substantial.” California Trout v. F.E.R.C., 572 F.3d 1003, 1017 (9th Cir. 2009).

         In this case, the Forest Service engaged in public scoping for the Baseline Project by publishing a legal notice of the project plan in two Arizona newspapers in May 2014 and requesting that the public submit comments over the next thirty days. A.R. 9860. Plaintiffs and the larger public were provided with a 127-page draft EA describing the Baseline Project, its likely impact, and the existence of related projects, including the Main Mine Proposal. Plaintiffs and the public had access to the Main Mine Proposal online, and submitted extensive comments urging the Forest Service to consider the Main Mine Proposal when determining the Baseline Project's cumulative impact. A.R. 10791-92; Doc. 41 at 54; Doc. 38 at 13-14. The Forest Service considered these comments and assessed the cumulative impact of the Main Mine in the final EA. A.R. 15237.

         As Resolution further notes, the final EA was completed and released, along with a draft FONSI, on January 15, 2016, triggering a 45-day objection period. During this period, any new issues arising after the comment period had closed (including any new information in the final EA) could be raised. A.R. 15161-62. Nine objectors, including Plaintiffs, raised more than 100 issues. A.R. 17560. A team of subject matter experts reviewed each objection and provided written responses (A.R. 17213), and objection resolution meetings were held (A.R. 17337, 17338, 17340, 17342). Based on the objection review and the resolution meetings, modifications were made to the final EA and FONSI. A.R. 17560. 17364-66, 17369-71.

         The Ninth Circuit has instructed that “[t]he way in which the information is provided is less important than that a sufficient amount of environmental information - as much as practicable - be provided so that a member of the public can weigh in on the significant decisions that the agency will make in preparing the EA.” Bering Strait, 524 F.3d at 953 (quotation marks and citation omitted). Considering the totality of the circumstances in this case, Plaintiffs and the public were able “to weigh in with their views and thus inform the agency decision-making process.” Id. What is more, even with the final EA now having been available for some time, Plaintiffs identify no information they would have provided had the draft EA included a discussion of the cumulative impact of the Main Mine.

         Plaintiffs rely on two cases which do not address the standard for determining whether the agency afforded sufficient opportunity for public comment. First, they cite Te-Moak Tribe for the proposition that “it is the agency's duty under NEPA, not the public's, to provide the needed information and analysis for public review and comment.” Doc. 44 at 12. But Te-Moak addressed the standard plaintiffs must satisfy to show that the agency failed to properly consider the cumulative impacts of a proposed project. 608 F.3d at 605. It does not hold that agencies must detail the cumulative impact of all projects eventually addressed in their final EA.

         Plaintiffs also cite Great Basin Resource Watch v. Bureau of Land Management, 844 F.3d 1095, 1104 (9th Cir. 2016), to argue that an agency cannot rely on new information and analysis that the public did not have a chance to consider. Doc. 44 at 12. But that case dealt specifically with new data compiled by the agency after issuance of the final EIS.

         The Court concludes that the public had a sufficient opportunity to comment on the EA. Although the draft did not include an analysis of the cumulative impact of the Main Mine Proposal, Plaintiffs and the public were well aware of that proposal, had the ability to study it with care, and provided extensive comments about the proposal and its potential cumulative impact. The Court concludes that the public comment process followed by the Forest Service was reasonable and adequate.[3]

         C. Direct, Indirect, and Cumulative Impact Analysis.

         Plaintiffs argue that the EA fails to (1) provide a quantified assessment of impacts to air quality, (2) fully assess cumulative impacts of the Main Mine, and (3) adequately assess cumulative impacts of other projects. Doc. 38 at 21; Doc. 41 at 36.

         1. Air Quality.

         a. Ozone Analysis.

         Plaintiffs argue that the EA violates NEPA because it does not quantify or contain analysis of “Ozone levels created or exacerbated by the Project's emissions, let alone the cumulative Ozone level caused by emissions of the other current and reasonably foreseeable future projects when combined with the Project.” Doc. 38 at 21.

         The Court cannot conclude that the EA erred in failing to quantify or model ozone levels because NEPA does not require that agencies employ any “particular analytic protocol” when determining the environmental impact of an action. Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir. 1997). The agency “is not required to conduct any particular test or to use any particular method, so long as the evidence provided to support its conclusions, along with other materials in the record, ensure that the agency made no clear error of judgment that would render its action arbitrary and capricious.” Bark v. U.S. Bureau of Land Mgmt., 643 F.Supp.2d 1214, 1223 (D. Or. 2009) (alterations incorporated, quotation marks and citation omitted). Courts should defer to the agency's expertise in this area and consider only whether the EA “contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences[.]” Ass'n of Pub. Agency Customers, 126 F.3d at 1183.

         Plaintiffs point to no requirement that the EA specifically quantify or model the effects of the Baseline Project on ozone levels, and several cases have found that an agency acts reasonably when, as here, it focuses on ozone precursors. In Border Power Plant Working Group v. Department of Energy, the court found that an agency had acted reasonably when it “provide[d] a logical argument that the presence of [nitrogen oxides] and ozone will be closely and positively correlated[, ]” and then analyzed the nitrogen oxides contributions that would be made by the action at issue and “reasonably extrapolated from this the impact on ozone.” 260 F.Supp.2d 997, 1022 (S.D. Cal. 2003); see also Amigos Bravos v. U.S. Bureau of Land Mgmt., No. 6:09-CV-00037-RB-LFG, 2011 WL 7701433, at *33 (D.N.M. Aug. 3, 2011) (finding that the agency adequately identified the environmental risks of the proposed action when it calculated the ozone precursor emissions for the proposed action and determined that the development would contribute to an increase in emissions and could contribute to violations of the ozone NAAQS); Nat. Res. Def. Council v. Vilsack, No. 08-CV-02371-CMA, 2011 WL 3471011, at *9 (D. Colo. Aug. 5, 2011) (finding that the agency did not violate NEPA when it conducted modeling of ozone precursors).

         Here, the Forest Service divided the Baseline Project into three segments: (1) construction and initial activities during the first year, (2) monthly well monitoring during the second year, and (3) quarterly well monitoring during the third through tenth years. A.R. 15321. The EA includes data on the estimated emissions of various contaminants during the first year of the Baseline Project - the year that will result in the highest emissions. A.R. 15321-22. The EA notes that some of these contaminants are ozone precursors, but that the temporary nature of the project and the low levels of emissions will likely lead to “no measurable increases in ozone levels.” A.R. 15322.

         As part of this analysis, the Forest Service commissioned a 20-page Air Emission Inventory by Pinyon Environmental. A.R. 13418-37. That document sets forth estimated emissions from the Baseline Project, including nitrogen oxides. It also discusses the context and cumulative impacts of the project. Id. It finds that nitrogen oxides emissions during the first year will constitute only 1% of all nitrogen oxides emissions from Pinal County, even if only the major emission sectors are considered. A.R. 13433-34. When all sources are consider, nitrogen oxides emissions from the Baseline Project will constitute less than 1% of emissions in Pinal County. Id.

         The Court finds this a sufficient consideration of the project's effects on ozone. The Forest Service found that ozone modeling would not be “appropriate for the scale of analysis due to the relatively low levels of ozone precursors estimated to be generated by the project and exorbitant cost and inconclusive results that would result from modelling.” A.R. 17216. “Defendants' conclusion that ozone modeling was inappropriate for this Project based on its complexity and cost is entitled to deference.” Nat. Res. Def. Council, 2011 WL 3471011 at *9.

         b. Air Quality Standards.

         Plaintiffs argue that Defendants did not consider all of the relevant factors when analyzing the Baseline Project's impact on ozone because it considered outdated National Ambient Air Quality Standards (“NAAQS”). Doc. 38 at 22. As both parties agree and the administrative record reflects, the NAAQS for ozone were lowered from 75 parts per billion (“ppb”) to 70 ppb. A.R. 17217; Doc. 38 at 22; Doc. 41 at 41. This change was published on October 26, 2015, and went into effect on December 28, 2015. 80 Fed. Reg. 65291-65468. States and tribes were then required to work with the federal government to ...


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