United States District Court, D. Arizona
Concerned Citizens and Retired Miners Coalition, et al., Plaintiffs,
United States Forest Service, et al., Defendants.
G. Campbell United States District Judge.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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[.]”
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
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).
“‘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).
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).
Is the Main Mine Proposal a Connected Action?
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.
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).
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).
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.
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.
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.
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 184.108.40.206 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
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.
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
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.
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
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
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.
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.
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).
“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.
Was there Sufficient Public Review?
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
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. §§
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,
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.
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).
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.
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,
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.
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.
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
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
Direct, Indirect, and Cumulative Impact Analysis.
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.
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.
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
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).
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.
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.
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.
Air Quality Standards.
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 ...