Patagonia Area Resource Alliance v. United States Forest Service ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Patagonia Area Resource Alliance, et al., No. CV-23-00280-TUC-JGZ 10 Plaintiffs, ORDER 11 v. 12 United States Forest Service, et al., 13 Defendants. 14 15 Plaintiffs, eight environmental organizations, filed this action against Defendants 16 United States Forest Service and Kevin Dewberry (collectively USFS) under the 17 Administrative Procedures Act (APA), alleging USFS’s approval of exploratory mining 18 projects violated the National Environmental Policy Act (NEPA). (Doc. 1.) Plaintiffs seek 19 a preliminary injunction stopping two projects: Arizona Standard LLC’s Sunnyside Project 20 and South32 Hermosa Inc.’s Flux Canyon Project. (Doc. 25.) On July 11, 2023, the Court 21 granted Arizona Standard and South32’s motions to intervene. (Doc. 19.) On July 24, 2023, 22 the Court granted the Town of Patagonia’s request to file an amicus memorandum in 23 support of Plaintiffs’ Motion. (Doc. 36.) Plaintiffs’ Motion is fully briefed. (Docs. 25–29, 24 34, 37–40, 44.) On August 24, 2023, the Court held Oral Argument. (Doc. 47.) For the 25 reasons that follow, the Court will deny Plaintiffs’ Motion for Preliminary Injunction. 26 // 27 // 28 // 1 I. Background 2 The Coronado National Forest stretches across nearly 1.8 million acres in Arizona 3 and New Mexico. (Doc. 26-4 at 7.) Within this forest, in southeastern Arizona, sits the 4 Patagonia Mountains. (Id. at 7, 34.) The Patagonia Mountains are known as “sky islands,” 5 rising abruptly amid grassland and desert scrub to form forest islands within a “desert sea.” 6 (Id. at 34.) Several species listed under the Endangered Species Act occupy or roam the 7 Patagonia Mountains. (Id. at 35.) These species include the Mexican spotted owl, yellow- 8 billed cuckoo, jaguar, ocelot, Bartram’s stonecrop, and monarch butterfly. (Id.) Beneath 9 the Patagonia Mountains lies the Cienega Creek basin and the Sonoita Creek watershed. 10 (Id. at 64.) The Town of Patagonia, home to about 900 residents, is located in the valley 11 of the Sonoita Creek. (See id.) Little is known about the deeper Cienega Creek basin, but 12 the overlapping Sonoita Creek watershed is the Town of Patagonia’s sole source of portable 13 water. (Id.) 14 USFS approved two exploratory drilling projects in the Patagonia Mountains: 15 Arizona Standard’s Sunnyside Project and South32’s Flux Canyon Project. (See Docs. 27- 16 1; 27-8.) The Sunnyside Project is located about four miles south of the Town of Patagonia 17 and will require about 7.5 acres of ground disturbance. (Doc. 26-4 at 7, 14.) The Flux 18 Canyon Project is about one mile further south and involves 1.8 acres of ground 19 disturbance. (Id. at 84; Doc. 27-8 at 5, 7.) 20 A. NEPA Procedures 21 In evaluating these proposed projects, USFS needed to comply with NEPA 22 regulations, which set forth three different paths for project approval. See 40 C.F.R. §§ 23 1500.3, 1501.3. First, an agency must prepare an Environmental Impact Statement (EIS) if 24 a project is likely to have significant effects on the environment. See id. § 1501.3(a)(3). 25 Second, if it is unlikely that a project will have significant effects, or if the significance of 26 effects is uncertain, the agency may prepare an Environmental Assessment (EA). See id. § 27 1501.3(a)(2). An EA is brief public document that discusses a project’s environmental 28 impacts, alternatives, and evidence and analysis for determining whether the agency should 1 prepare an EIS or issue a Finding of No Significant Impact (FONSI). See id. § 1501.5; see 2 also 40 C.F.R. § 1508.9 (2019). An agency’s EA must demonstrate that the agency took a 3 “hard look” at the likely effects of the proposed project. Native Ecosystems Council v. 4 USFS, 428 F.3d 1233, 1239 (9th Cir. 2005). Third, an agency need not prepare an EIS or 5 EA when a project falls within a categorical exclusion (CE). 40 C.F.R. §§ 1501.3(a)(1), 6 1501.4(a). By definition, CEs are categories of actions which “normally do not have a 7 significant effect on the human environment,” and therefore do not require preparation of 8 an EA or EIS. See id. § 1501.4(a). If there are extraordinary circumstances for a project, 9 the agency must determine whether the project still qualifies for a CE or requires an EA or 10 EIS. See id. § 1501.4(b). 11 B. Sunnyside Project 12 The Sunnyside Project is a seven-year exploratory drilling project, requiring the 13 construction of thirty drill pads within three drill areas. (Doc. 26-4 at 7.) Up to two drill 14 rigs may operate at any time, twenty-four hours a day, seven days a week. (Id. at 20.) The 15 project will require about thirty-six workers, the transportation of heavy equipment, and 16 the clearing of 7.5 acres. (Id. at 14, 20.) Arizona Standard will remove no more than 180 17 trees with a greater than five-inch diameter-at-breast-height and purchase all such trees 18 through a timber sales contract. (Id. at 15.) Reclamation and revegetation efforts will begin 19 in the first year of the project and continue contemporaneously with drilling until 20 completion. (Id. at 24.) Arizona Standard must monitor the progress of reclamation for up 21 to six years following seeding, or until USFS approves of the reclamation, whichever 22 occurs sooner. (Id.) In addition to the restoration of land it will disturb, Arizona Standard 23 will restore 4.2 acres of already disturbed land. (Id. at 23.) 24 Specific features of the project will help mitigate disturbances to wildlife, including 25 activity restrictions during the Mexican spotted owl’s breeding season, monitoring of the 26 owl during and after the project, and a requirement that Arizona Standard fit all engines 27 with mufflers and point all light downwards at night. (Id. at 103.) Twenty-five design 28 features also help monitor and mitigate the risk of harming the local water supply. (Id. at 1 101.) These features include periodic sampling and testing of water, installation of 2 temporary sediment barriers, and the permanent sealing of boreholes with Wyoming grade 3 bentonite mud and cement plugs. (Id. at 101–03.) 4 In January 2023, after responding to hundreds of public comments and consulting 5 with twelve Native American Tribes, USFS completed an EA for the Sunnyside Project. 6 (Id. at 2, 11.) In June 2023, USFS issued a FONSI, determining that the Sunnyside Project 7 would not have significant effects on the quality of the human environment. (Doc. 27-1 at 8 22.) 9 C. Flux Canyon Project 10 The Flux Canyon Project is a twelve-month exploratory drilling project, requiring 11 the construction of about 2,000 feet of road and six drill pads. (Doc. 27-8 at 5.) South32 12 will complete all drilling and construction activities within seven months. (Id.) During that 13 time, drilling operations may continue twenty-hours a day, seven days a week. (Id.) The 14 project will disturb 1.8 acres of National Forest land. (Id.) From the third to the seventh 15 month of the project, South32 will complete reclamation activities on all temporarily 16 disturbed land contemporaneously with drilling. (Id.) South32 will monitor its reclamation 17 efforts for the remaining five months of the project. (Id.) All project activities will be 18 complete within twelve months. (Id.) 19 In August 2022, USFS began a public scoping period; contacted 506 government 20 entities and agencies, tribes, partner groups, and individuals; and received and responded 21 to eighteen comments. (Id. at 10.) In May 2023, USFS issued a Decision Memo, finding 22 the Flux Canyon Project eligible for a CE under 36 C.F.R. 220.6(e)(8) as a mineral, energy, 23 or geophysical investigation which will last no more than one year, including incidental 24 support activities. (Id. at 4.) USFS considered ten federally listed species and the local 25 water conditions before determining the project would not significantly affect the 26 environment. (See id. at 11–17.) 27 // 28 // 1 D. Legal Challenge to Projects 2 On June 20, 2023, Plaintiffs filed this action, alleging USFS’s authorization of the 3 two projects violated NEPA. (Doc. 1 ¶ 9.) On July 14, 2023, Plaintiffs filed a Motion for 4 Preliminary Injunction under Rule 65(a) of the Federal Rules of Civil Procedure. (Doc. 25 5 at 11.) Arizona Standard and South32 agreed to forego any ground-disturbing activities 6 until September 15, 2023, to allow time for the litigation of Plaintiffs’ Motion. (Doc. 15 at 7 2–3.) The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346. 8 II. General Standards of Review 9 NEPA mandates the process an agency must follow but does not impose any 10 substantive requirements on an agency’s decision. Ranchers Cattlemen Action Legal Fund 11 United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1102 (9th Cir. 2005). 12 Because NEPA provides no private right of action to enforce its requirements, a plaintiff 13 must bring suit under the APA. See id. Under the APA, a court shall hold unlawful and set 14 aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not 15 in accordance with law.” 5 U.S.C. § 706(2)(A). 16 An agency decision is arbitrary and capricious if the agency relied on factors which 17 Congress did not intend it to consider; completely failed to consider an important facet of 18 the problem; or provided an explanation for its decision that conflicts with the evidence 19 before the agency or is so implausible it could not be attributed to the product of agency 20 expertise or a difference in view. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. 21 Co., 463 U.S. 29, 43 (1983). In the context of an alleged violation of NEPA, courts must 22 determine whether the agency has met NEPA’s hard look requirement, based its decision 23 on a consideration of relevant factors, and presented a convincing statement of reasons why 24 a project’s effects on the environment are insignificant. Ctr. for Cmty. Action & Env’t Just. 25 v. FAA, 61 F.4th 633, 639 (9th Cir. 2023). 26 // 27 // 28 // 1 III. Discussion 2 A preliminary injunction is an extraordinary and drastic remedy never awarded as 3 of right. Munaf v. Geren, 553 U.S. 674, 689 (2008). A partying requesting a preliminary 4 injunction must show (1) it is likely to succeed on the merits; (2) it is likely to suffer 5 irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its 6 favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 7 555 U.S. 7, 20 (2008). A preliminary injunction may only be awarded when the movant 8 provides a clear showing that it is entitled to such relief. Id. at 22. Using these factors, the 9 Court will address the challenges to the Sunnyside Project and Flux Canyon Project 10 separately. 11 A. Sunnyside Project 12 1. Merits 13 Plaintiffs advance three reasons why they are likely to succeed on the merits: 14 (1) USFS did not adequately consider cumulative impacts; (2) USFS failed to take a hard 15 look at the Sunnyside Project’s impacts to Mexican spotted owls; and (3) USFS did not 16 adequately analyze baseline water conditions. (Doc. 25 at 21, 27, 30.) To show likelihood 17 of success on the merits, Plaintiffs must show it is reasonably likely they will succeed. See 18 O’Brien v. O’Laughlin, 557 U.S. 1301, 1302 (2009). Plaintiffs have not shown it is 19 reasonably likely that any of their three arguments will succeed. 20 a. Cumulative Impacts 21 Under NEPA, an EA must briefly discuss the environmental impacts of the proposed 22 project and any alternatives. 40 C.F.R. § 1501.5(c)(2). Environmental impacts “means 23 changes to the human environment from the proposed action or alternatives that are 24 reasonably foreseeable.” Id. § 1508.1(g). They include direct, indirect, and cumulative 25 effects. Id. § 1508.1(g)(1)–(3). The purpose of evaluating cumulative impacts is to prevent 26 an agency from dividing a large project into multiple smaller actions to avoid full 27 consideration of the entire project’s environmental impacts. Tinian Women Ass’n v. U.S. 28 Dep’t of the Navy, 976 F.3d 832, 838 (9th Cir. 2020). An agency must provide some 1 quantified or detailed information when considering cumulative impacts. Ocean Advocs. 2 v. U.S. Army Corps of Engineers, 402 F.3d 846, 868 (9th Cir. 2005). Its cumulative-impacts 3 analysis must also be useful and more than perfunctory. Kern v. U.S. Bureau of Land 4 Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002). Even assuming USFS’s analysis is lacking, 5 the burden is on Plaintiffs to show that USFS’s ultimate conclusion was unreasonable. See 6 Ctr. for Cmty. Action & Env’t Just., 61 F.4th at 640. 7 Plaintiffs argue USFS’s cumulative-impacts analysis did not fully consider the Flux 8 Canyon Project and private-land Hermosa Project and ignored the Hermosa Critical 9 Minerals Project. (Doc. 25 at 22–24.) These arguments are unpersuasive. Plaintiffs have 10 not shown USFS’s ultimate conclusions on cumulative impacts were unreasonable. See 11 Ctr. for Cmty. Action & Env’t Just., 61 F.4th at 640. 12 First, Plaintiffs argue USFS failed to analyze the cumulative impact of the 13 Sunnyside Project and Flux Canyon Project on Mexican spotted owls, yellow-billed 14 cuckoos, jaguars, and ocelots. (Doc. 25 at 22.) USFS completed a detailed analysis of the 15 Sunnyside Project’s impacts on these species. (Doc. 26-4 at 39–42.) Although USFS did 16 not mention the Flux Canyon Project in its analysis of the cumulative impacts for each 17 species, USFS described the Flux Canyon Project and which species it would impact in a 18 table, (id. at 32), and incorporated that table into its summary of cumulative impacts, (id. 19 at 43). The Ninth Circuit has held an agency may incorporate projects into an 20 environmental baseline and measure the incremental impact of a proposed project against 21 that baseline. Cascadia Wildlands v. Bureau of Indian Affs., 801 F.3d 1105, 1112 (9th Cir. 22 2015). Under this reasoning, USFS’s consideration of the Flux Canyon Project is adequate. 23 See id. 24 What is more, even assuming USFS’s analysis falls short and requires more 25 quantitative or detailed analysis, see Ocean Advocs., 402 F.3d at 868, this misstep does not 26 undermine USFS’s final conclusion, see Ctr. for Cmty. Action & Env’t Just., 61 F.4th at 27 640. In the table mentioned above, USFS explained the Flux Canyon Project will disturb 28 less than two acres of land and involve only seven months of exploratory drilling. (Doc. 1 26-4 at 32.) The private land Hermosa Project, by contrast, is a long-term exploratory 2 drilling and potential mining operation encompassing 450 acres. (Id.) In summarizing the 3 cumulative impact of other projects with the Sunnyside Project, USFS stated the private- 4 land projects, like the Hermosa Project, accounted for the greatest amount of cumulative 5 impact. (Id. at 43.) In fact, the private-land projects amounted to 39.6 percent of the 6 cumulative-effects analysis area for the Mexican spotted owl and yellow-billed cuckoo, 7 and 8.3 percent of the cumulative-effects analysis area for the jaguar and ocelot. (Id.) It is 8 unlikely that the two-acre short-term Flux Canyon Project, at just 0.4 percent the size of 9 the Hermosa Project, would affect these numbers in any material way. 10 Plaintiffs next argue USFS failed to fully consider the private-land Hermosa Project 11 and inaccurately claimed no details were available on the project’s timeline aside from an 12 expected start date within the next ten years. (Docs. 25 at 23; 26-4 at 32.) In support, 13 Plaintiffs point to South32’s Hermosa Project Update, claiming the Update shows “the 14 project portends 22 years of mining with first production targeted for Fiscal Year 2027.” 15 (Doc. 25 at 24.) The Hermosa Project Update, however, reported the results of South32’s 16 pre-feasibility study. (Doc. 28-5 at 2.) It did not provide specific details as to the project’s 17 timeline. Plaintiffs infer those details from the project’s target start date in 2027, a date 18 contingent on South32’s receipt of investments and required permits, and an estimated 19 resource life of twenty-two years. (Id. at 5.) Although far from final, the target start date is 20 consistent with USFS’s stated expectations. (See Doc. 26-4 at 32.) And estimated resource 21 life is no substitute for an actual timeline of project activities when USFS must complete a 22 meaningful analysis of the effects of those activities. See Env’t Prot. Info. Ctr. v. USFS, 23 451 F.3d 1005, 1014 (9th Cir. 2006) (USFS need not make impractical projections if not 24 enough information is available to permit meaningful consideration). 25 Notably, USFS also analyzed the noise and visual disturbances already arising from 26 the private land where South32 has begun exploratory drilling in advance of the Hermosa 27 Project. (Doc. 26-4 at 44–47.) USFS considered these disturbances and noted they may be 28 affecting the Mexican spotted owl, yellow-billed cuckoo, jaguar, and ocelot, as well as 1 degrading their habitat. (See id.) And, as discussed above, USFS specifically addressed the 2 private land projects, such as the Hermosa Project, in its summary of cumulative impacts, 3 acknowledging the great risk these projects posed for listed species. (Id. at 43.) Plaintiffs 4 have not shown USFS failed to consider a project timeline or reached an arbitrary 5 conclusion as to the Hermosa Project. 6 Plaintiffs also argue USFS arbitrarily excluded the Hermosa Critical Minerals 7 Project from its cumulative-impacts analysis. (Doc. 25 at 22–23.) According to Plaintiffs, 8 South32 announced this project, and USFS’s role as the lead agency for the government, 9 five months after the Sunnyside EA and one month before the Sunnyside FONSI. (Id.) 10 Based on this information, Plaintiffs ask the Court to infer that USFS was aware of 11 South32’s FAST-41 application and the project when USFS completed the Sunnyside EA 12 and FONSI. (Id.) USFS contends this project was not reasonably foreseeable when it 13 completed the EA because it was unaware of the project, South32 submitted its application 14 to a separate federal agency, and South32 had not yet submitted a mining plan of 15 operations. (Oral Argument; Doc. 38 at 19.) For these reasons, USFS argues it was not 16 required to analyze or speculate about the project. (Id.) 17 South32’s announcement for this project does not establish that USFS received or 18 knew of the FAST-41 application. The announcement states South32’s application was 19 confirmed by the U.S. Federal Permitting Improvement Steering Council, an independent 20 federal agency, as the FAST-41 program’s first mining project. (Doc. 28-6 at 2.) 21 “Reasonably foreseeable means sufficiently likely to occur such that a person of ordinary 22 prudence would take it into account in reaching a decision.” 40 C.F.R. § 1508.1. The 23 Permitting Council’s listing of USFS as the lead agency for the Hermosa Critical Minerals 24 Project does not establish USFS’s knowledge of the project five months earlier. And 25 Plaintiffs have not shown what project information South32 included in its FAST-41 26 application, when the Permitting Council received the application, or whether USFS was 27 privy to any of the information South32 submitted to the Permitting Council. Nor do 28 Plaintiffs point to a timeline of project activities or other details in South32’s 1 announcement which USFS could have meaningfully considered in its EA. See Env’t Prot. 2 Info. Ctr., 451 F.3d at 1014. On this record, Plaintiffs have not shown that the Hermosa 3 Critical Minerals Project was reasonably foreseeable or that USFS should have taken it into 4 account when completing its cumulative-impacts analysis. 5 b. Mexican Spotted Owl 6 Plaintiffs argue USFS did not take a “hard look” at the Sunnyside Project’s impact 7 on Mexican spotted owls. (Doc. 25 at 27.) Examination of the agency’s stated reasons for 8 its conclusion is crucial to determining whether it took a “hard look” at the potential 9 environmental impact of a project. Ctr. for Cmty. Action & Env’t Just., 61 F.4th at 639. It 10 appears that USFS relied on United States Fish and Wildlife’s (USFWS) Biological 11 Opinion which misconstrued a scientific study, Delaney (1999), and its findings on the 12 effects of sound on the owl. (Doc. 26-5 at 36, 41.) USFWS cited this study, referencing its 13 threshold for injury from aerial sound rather than its threshold for injury from ground-level 14 sound. (Id.; Doc. 25 at 27–28.) Indeed, the threshold for ground-level sound would be more 15 analogous here because the sound of the project’s drilling operations will arise from the 16 ground. 17 Even so, the Delaney study and the difference between the two sound thresholds 18 were not central to USFS’s conclusion. To be sure, USFS eventually adopted the breeding 19 restrictions discussed by USFWS, (Doc. 26-4 at 40), and that discussion by USFWS 20 included a citation to the Delaney study, (Doc. 26-5 at 36). Yet, USFWS’s restrictions were 21 based on its recovery plan for the owls rather than the Delaney study. (See id.) USFWS 22 also cited the Delaney study for the proposition that owls might leave the area during the 23 project but would not permanently desert the area. (Id. at 41.) USFS, however, did not cite 24 the Delaney study at all or base any of its conclusion on specific sound thresholds for the 25 owls. (Doc. 26-4 at 39–40.) Instead, USFS found that the Sunnyside Project accounted for 26 less than 0.001 percent of the owl’s critical habitat and, upon completion, it would provide 27 4.2 acres of additional habitat. (Id. at 40.) USFS thus concluded, even if the owls abandon 28 the area for the project’s entire duration, as Plaintiffs’ sound calculations suggest, the owls 1 and their habitat would not suffer substantial long-term harm from the project. (Id.) 2 USFWS’s misreading of the Delaney study and its stated sound thresholds for the owls do 3 not undermine USFS’s final conclusion. See Ctr. for Cmty. Action & Env’t Just., 61 F.4th 4 at 639–40. 5 c. Baseline Water Conditions 6 Plaintiffs argue USFS’s decision not to further analyze baseline groundwater 7 conditions is arbitrary and capricious. (See Doc. 25 at 30–31.) Plaintiffs and amicus curiae 8 Town of Patagonia state concerns about the quality of groundwater in the project area and 9 the risk of groundwater exchange between aquifers during deep exploratory drilling. (Id.; 10 Doc. 37 at 4.) They argue USFS’s failure to establish baseline groundwater conditions 11 threatens the sole source of drinking water for the Town of Patagonia and all nearby 12 residences. (Docs. 25 at 30–31; 37 at 4.) Under NEPA, establishing baseline conditions is 13 a practical requirement rather than an independent legal requirement. Or. Nat. Desert Ass’n 14 v. Jewell, 840 F.3d 562, 568 (9th Cir. 2016). An agency may estimate baseline conditions 15 using computer modeling, data from a similar area, or some other reasonable method. 16 Great Basin Res. Watch v. Bureau of Land Mgmt., 844 F.3d 1095, 1101 (9th Cir. 2016). 17 In its EA, USFS included an eight-page analysis on water resources. (Doc. 26-4 at 18 64–71.) USFS analyzed a 2001 baseline study of groundwater conducted by Arizona 19 Department of Environmental Quality. (Id. at 66.) Although only 1 of the 20 wells in the 20 study are within the project area, all 20 wells fell within the Cienega Creek groundwater 21 basin, which is the single basin where project-related activities would occur. (Id. at 64, 66.) 22 To be sure, the lone well within the project area showed elevated levels of arsenic and 23 barium. (Id. at 66.) Yet, it is unclear whether that is from natural causes or human activity, 24 (id.), and in any event, those levels still meet Arizona’s drinking water standard, (compare 25 18 A.A.C. § 11-406(B) (standard for arsenic and barium is 0.05 mg/L and 2 mg/L, 26 respectively), with Doc. 26-4 at 66 (well’s arsenic and barium levels were 0.0295 mg/L 27 and 0.019 mg/L, respectively)). More importantly, Plaintiffs criticize USFS’s conclusion 28 but offer no reasonable alternative for assessing baseline groundwater conditions. During 1 the public comment period, USFS responded to a request for a “comprehensive surface and 2 groundwater study.” (Doc. 27-3 at 7.) USFS explained a detailed study would require 3 drilling operations similar in scope to the Sunnyside Project. (Id.) It is likely that the 4 detailed baseline analysis of the Cienega Creek basin sought by Plaintiffs and amicus curiae 5 would be impractical and not be required by NEPA. See Or. Nat. Desert Ass’n, 840 F.3d 6 at 568. 7 The record shows USFS’s analysis of water resources is reasonable. The project 8 includes twenty-five features designed to protect water resources, mitigate the risk of 9 groundwater exchange between aquifers, and periodically test the water to ensure it meets 10 quality standards. (Doc. 26-4 at 101–03.) USFS relied on comprehensive data of twenty 11 wells within the Cienega Creek basin and made reasonable inferences based on the project 12 circumstances, potential alternatives, and its scientific expertise. (See Docs. 26-4 at 64–71; 13 27-3 at 7.) The Court cannot conclude that USFS’s approach to determining baseline 14 groundwater conditions is likely arbitrary and capricious. See, e.g., Concerned Citizens & 15 Retired Miners Coal. v. USFS, 279 F. Supp. 3d 898, 936 (D. Ariz. 2017) (USFS’s decision 16 not to require site-specific data on baseline water conditions is entitled to deference when 17 USFS makes reasonable inferences from scientific data). 18 2. Irreparable Harm 19 Courts must not issue preliminary injunctions unless an applicant shows it is likely 20 to suffer irreparable harm before a decision on the merits can be rendered. Winter, 555 U.S. 21 at 22; Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 22 (9th Cir. 2011). Plaintiffs argue the Sunnyside Project will harm their members’ enjoyment 23 of the undisturbed forest and interest in the preservation of the Mexican spotted owl. (See 24 Doc. 25 at 37–39.) The Sunnyside Project area, however, encompasses only 7.5 of the 25 1,800,000 acres in the Coronado National Forest. (Doc. 26-4 at 7, 14.) The project also 26 establishes restrictions on the trees which may be removed and requires up to six years of 27 monitoring after the seeding of reclamation areas. (Id. at 15, 24.) Plaintiffs have not 28 demonstrated their members will likely suffer irreparable harm to their recreational 1 interests without a preliminary injunction. 2 Similarly, for the Mexican spotted owl, Plaintiffs have not established that the 3 species or its habitat will sustain irreparable injury before the Court can render a decision 4 on the merits. Plaintiffs contend chronic noise for up to seven years would likely cause the 5 owl to permanently abandon their territories for the duration of the project. (Doc. 25 at 39.) 6 A decision on the merits would likely take months, perhaps a year, but certainly not seven 7 years. It is unlikely the owl will face the irreparable harm Plaintiffs contemplate within this 8 shorter timeframe. Indeed, USFS and USFWS concluded the owls will not suffer any 9 significant long-term harm and any owls that depart during the project will likely return to 10 the area when the project ends. (Doc. 26-4 at 40, 45; Doc. 26-5 at 33–41.) 11 Plaintiffs also argue that even six to twelve months of drilling noise will irreparably 12 harm the owl by impairing its ability to forage and pushing it into substitute habitat that is 13 unlikely to exist. (See Docs. 26-1 ¶ 16; 44 at 35.) But the project area encompasses less 14 than 0.001 percent of the owl’s designated critical habitat area. And the larger Hermosa 15 Critical Minerals Project and Hermosa Project, which could change the cumulative effects 16 on the owl, will probably not begin until at least 2026 and 2027, respectively. (See Docs. 17 28-5 at 5 (Hermosa Project); Doc. 28-7 at 3 (Hermosa Critical Minerals Project).) The noise 18 disturbance from these projects will not overlap with the Sunnyside Project’s operations 19 any time soon. Plaintiffs have not shown that short-term disturbances while the Court 20 reaches a decision on the merits will likely leave the owl with no place to nest or forage. 21 3. Balance of Equities and Public Interest 22 Under the next factor, balance of equities, the Court weighs the harm Plaintiffs 23 would suffer if it denied the injunction against the harm Arizona Standard would suffer if 24 it granted the injunction. See Winter, 555 U.S. at 33; 11A Charles Alan Wright & Arthur 25 R. Miller, Federal Practice and Procedure § 2948.2 (3d ed. 2023). As discussed above, 26 Plaintiffs have established some harm—impairment to their members’ recreational 27 interests and the likelihood that Mexican spotted owls in the vicinity must temporarily 28 depart—but have not shown any irreparable harm. Similarly, Arizona Standard argues it 1 would suffer substantial financial harm should an injunction issue and delay its project. 2 (Doc. 40 at 34.) But such harm would not be permanent in nature and could be compensated 3 with monetary damages or a bond. This factor favors neither Plaintiffs nor Arizona 4 Standard. 5 For the final factor, the Court considers the impact of the preliminary injunction on 6 non-parties and the public. See Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc., 7 725 F.3d 940, 946 (9th Cir. 2013). There is a long-standing public interest in preserving 8 nature and requiring careful consideration of environmental impacts before projects 9 proceed. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1138 (9th Cir. 2011). 10 Congress has also found it in the nation’s interest to encourage private companies to mine 11 domestic resources. See 30 U.S.C. § 21a. Plaintiffs have shown potential environmental 12 harm but no irreparable injury. Although the exploratory Sunnyside Project has the 13 potential to uncover important natural resources, its utility is not yet certain. This factor is 14 thus neutral. 15 B. Flux Canyon Project 16 1. Merits 17 Plaintiffs argue USFS arbitrarily failed to complete a cumulative-impacts analysis, 18 invoked a CE, and discounted extraordinary circumstances. (Doc. 25 at 26, 33, 35.) 19 Plaintiffs have not met their burden to show likelihood of success as to these arguments. 20 See O’Brien, 557 U.S. at 1302. 21 a. Cumulative Impacts 22 In their motion for preliminary injunction, Plaintiffs contend USFS failed to 23 consider any cumulative impacts during the scoping process that resulted in USFS finding 24 the Flux Canyon Project eligible for a CE. (Doc. 25 at 26.) In response, South32 argues 25 that pre-2020 regulations governed this CE and did not require a cumulative-impacts 26 analysis. (Doc. 39 at 12.) In reply, Plaintiffs assert that post-2020 regulations required 27 USFS to complete a cumulative-impacts analysis. (Doc. 44 at 18–19.) The Court concludes 28 neither regulation required USFS to complete a separate, written cumulative-impacts 1 analysis. 2 The pre-2020 regulations defined “categorical exclusion” as “a category of actions 3 which do not individually or cumulatively have a significant effect on the human 4 environment.” 40 C.F.R. § 1508.4 (2019). By definition, a project approved under a CE 5 does not have, individually or cumulatively, a significant effect on the environment. An 6 agency’s invoking of a CE therefore does not require a separate cumulative-impacts 7 analysis. See Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1097 (9th Cir. 2013); 8 Sierra Club v. USFS, 828 F.3d 402, 411 (6th Cir. 2016); Utah Env’t Cong. v. Bosworth, 9 443 F.3d 732, 741 (10th Cir. 2006). 10 The 2020 revisions to NEPA regulations by the Council on Environmental Quality 11 (CEQ) do not change this conclusion. A CE is now defined as “a category of actions that 12 the agency has determined . . . normally do not have a significant effect on the human 13 environment.” 40 C.F.R. § 1508.1 (emphasis added). According to CEQ, this revision 14 clarifies that “there may be situations where an action may have significant effects on 15 account of extraordinary circumstances.” Update to the Regulations Implementing the 16 Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304, 17 43,342 (July 16, 2020) (codified at 40 C.F.R. § pts. 1501–08, 1515–18). Further analysis 18 of a project’s significant effects thus falls under an extraordinary-circumstances analysis 19 rather than a cumulative-impacts analysis. This is consistent with CEQ’s removal of the 20 term “cumulative impacts” from its regulatory definitions and its more holistic definition 21 of “effects,” which includes reasonably foreseeable cumulative effects. See 40 C.F.R. § 22 1508.1(g). Because a CE’s significant effects, if any, must be considered under an 23 extraordinary-circumstances analysis, Plaintiffs have not shown USFS was required to 24 complete a separate cumulative-impacts analysis for the Flux Canyon Project. 25 b. Eligibility for CE 26 USFS approved the Flux Canyon Project under the 36 C.F.R. § 220.6(e)(8) CE. 27 (Doc. 27-8 at 4). This CE applies to “[s]hort-term (1 year or less) mineral, energy, or 28 geophysical investigations and their incidental support activities.” Id. § 220.6(e)(8). 1 Activities that require reclamation include the clearing of vegetation and the construction 2 of less than one mile of road. See id. § 220.6(e)(8)(vii). Within the one-year time period, 3 project operators must reshape and revegetate disturbed areas “where reasonably 4 practicable.” Id. § 228.8(g)(4). 5 First, Plaintiffs argue USFS arbitrarily invoked a CE for the Flux Canyon Project 6 because it provided no rational basis for its conclusion that South32 could complete 7 exploratory drilling, reclamation, and revegetation in one year. (Doc. 25 at 33.) In support, 8 Plaintiffs compare the Flux Canyon Project’s five-month revegetation period with the 9 Sunnyside Project’s three-year revegetation period. (Id. at 33–34.) The length of the 10 Sunnyside Project’s revegetation period, Plaintiffs argue, demonstrates South32 cannot 11 adequately complete revegetation within the one-year project timeframe. (Id.) 12 In its Decision Memo, USFS explained that South32 will complete all reclamation 13 activities within the project’s twelve-month timeframe. (Doc. 27-8 at 5.) During the 14 project’s third month, South32 will begin reclamation activities, which will continue 15 contemporaneously with drilling. (Id.) South32 will complete all drilling and reclamation 16 activities by the seventh month, leaving five additional months to monitor revegetation. 17 (Id.) The Flux Canyon Project involves the construction of up to 6 drill pads and total 18 disturbance of 1.8 acres. (Id.) The Sunnyside Project, by contrast, involves the construction 19 of up to 30 drill pads and a total disturbance of 7.5 acres. (Doc. 26-4 at 14.) Although the 20 Sunnyside Project provides more time than the Flux Canyon Project for reclamation, it also 21 requires far greater land disturbance and the construction of many more drill pads. This 22 comparison does not show a defect in USFS’s reasoning. 23 Plaintiffs also appear to distinguish reclamation activities from revegetation 24 monitoring. They argue, even if South32 can complete reclamation activities during the 25 project’s seventh month, South32 must monitor revegetation for more than one growing 26 season, which, naturally, will take longer than five months. (Docs. 25 at 33; 44 at 31.) This 27 argument is unpersuasive. The CE applied here offers examples of covered operations, 28 including construction of one-third mile of road and the clearing of an acre of vegetation 1 for drill pads. 36 C.F.R. § 220.6(e)(8)(vii). It seems unlikely that most environments could 2 return to pre-operation vegetation conditions less than one year after an operator has 3 cleared an acre of vegetation. And although Plaintiffs suggest there might be some 4 environments where this is possible, (Doc. 44 at 31), USFS need only consider whether 5 South32 could revegetate disturbed areas where reasonably practicable, see 36 C.F.R. § 6 228.8(g). South32 committed one third of its project time to contemporaneous reclamation 7 activities and nearly one half of its project time to monitoring revegetation. Plaintiffs have 8 not shown USFS’s approval of these reclamation efforts lacks a rational basis. 9 c. Extraordinary Circumstances 10 An agency may invoke a CE only if there are no “extraordinary circumstances” 11 related to the proposed project. Id. § 220.6(a). Extraordinary circumstances are instances 12 where “a normally excluded action may have a significant environmental effect.” 40 C.F.R. 13 § 1507.3(e)(2)(ii). To evaluate whether extraordinary circumstances exist, agencies 14 consider, among other things, relevant resource conditions and federally listed species. 36 15 C.F.R. § 220.6(b)(1). The yellow-billed cuckoo is a threatened species detected in the 16 vicinity of the Flux Canyon Project. (Doc. 27-8 at 13.) In its Decision Memo, USFS 17 concluded the project would not affect the yellow-billed cuckoo. (Id.) USFS reasoned that 18 the project’s surface disturbance would be minimal, the project’s activities would not 19 encompass drainage bottoms where cuckoo breeding typically occurs, and the nearest 20 detected breeding locations (near drainage bottoms) were at least one-half of a mile away 21 from the project. (Id.) 22 Plaintiffs argue USFS’s conclusion is arbitrary and capricious because USFS neither 23 surveyed the project location nor considered that the cuckoo’s habitat might include 24 hillsides and upland areas similar to those within the project area. (Doc. 25 at 36.) Yet, 25 Plaintiffs cite no authority—and the Court finds none—requiring USFS to physically 26 inspect project sites for endangered or threatened species. Further, uncertainty alone as to 27 the cuckoo’s presence within the project area does not render USFS’s conclusion arbitrary 28 or capricious. See Ctr. for Biological Diversity v. Ilano, 261 F. Supp. 3d 1063, 1070 (E.D. 1 Cal. 2017), aff’d, 928 F.3d 774 (9th Cir. 2019). USFS’s explanation for its no-effect finding 2 is not so implausible that it cannot be attributed to the product of agency expertise or a 3 difference in view. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. 4 2. Irreparable Harm 5 The Court must not issue a preliminary injunction unless Plaintiffs show they are 6 likely to suffer irreparable harm before the Court can render a decision on the merits. See 7 Winter, 555 U.S. at 22; Park Vill. Apartment Tenants Ass’n, 636 F.3d at 1160. For the same 8 reasons discussed above for the Sunnyside Project, Plaintiffs have not shown they will 9 likely sustain irreparable harm from the Flux Canyon Project. This project is also much 10 smaller in size and shorter in duration than the Sunnyside Project, further limiting its 11 potential to cause any irreparable harm. And like Arizona Standard’s Sunnyside Project, 12 South32 must also reclaim all temporarily disturbed areas. (Doc. 27-8 at 5, 8.) Moreover, 13 no yellow-billed cuckoos or other listed species have been identified in the Flux Canyon 14 Project area. (Id. at 12–17.) 15 3. Balance of Equities and Public Interest 16 For the reasons discussed above for the Sunnyside Project, these factors are also 17 neutral for the Flux Canyon Project. Neither the potential environmental injury alleged by 18 Plaintiffs nor the economic loss alleged by South32 outweighs the other. Similarly, the 19 public has an established interest in both preventing potential environmental harm and 20 searching for potential natural resources. 21 III. Conclusion 22 Plaintiffs have neither shown a likelihood of success on the merits nor established a 23 likelihood of irreparable harm as to either the Sunnyside Project or Flux Canyon Project. 24 The Winter factors, taken together, favor denying Plaintiffs’ Motion for Preliminary 25 Injunction. 26 // 27 // 28 // 1 Accordingly, 2 IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Doc. 25) is || denied. Plaintiffs may file an amended complaint within 30 days from the date of this Order. 5 Dated this Ist day of September, 2023. 6 7 Z | . 8 i, Jennifer G. 71 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19-