Greater Yellowstone v. Lewis ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREATER YELLOWSTONE COALITION; 
NATURAL RESOURCES DEFENSE
COUNCIL; SIERRA CLUB;
DEFENDERS OF WILDLIFE,
Plaintiffs-Appellants,
v.
WILMA A. LEWIS; TOM TIDWELL;
ROBERT V. ABBEY; THOMAS J.
VILSACK; KEN SALAZAR; BRENT
LARSON, Supervisor, Caribou- No. 09-35729
Targhee National Forest,
Defendants-Appellees,
 D.C. No.
4:08-cv-00388-
J.R. SIMPLOT COMPANY; UNITED MHW
STEELWORKERS LOCAL 632; CITY OF
POCATELLO; CITY OF CHUBBUCK;
CITY OF SODA SPRINGS; POWER
COUNTY; CARIBOU COUNTY;
BANNOCK COUNTY; IDAHO FARM
BUREAU FEDERATION; TOWN OF
AFTON, WYOMING; LINCOLN
COUNTY, WYOMING,
Defendant-intervenors-Appellees.

119
120 GREATER YELLOWSTONE COALITION v. LEWIS
GREATER YELLOWSTONE COALITION; 
NATURAL RESOURCES DEFENSE
COUNCIL; SIERRA CLUB;
DEFENDERS OF WILDLIFE,
Plaintiffs,
and
ASHLEY CREEK PROPERTIES, L.L.C.,
Petitioner-intervenor-Appellant,
v.
BRENT LARSON, Supervisor,
Caribou-Targhee National Forest,
in his official capacity; WILMA A.
LEWIS; TOM TIDWELL; ROBERT V. 
ABBEY; THOMAS J. VILSACK; KEN
SALAZAR,
Defendants,
UNITED STEELWORKERS LOCAL 632;
CITY OF POCATELLO; CITY OF
CHUBBUCK; CITY OF SODA SPRINGS;
POWER COUNTY; CARIBOU COUNTY;
BANNOCK COUNTY; IDAHO FARM
BUREAU FEDERATION; TOWN OF
AFTON, WYOMING; LINCOLN
COUNTY, WYOMING,
Defendant-intervenors,

GREATER YELLOWSTONE COALITION v. LEWIS 121
and  No. 09-35753
J.R. SIMPLOT COMPANY, D.C. No.
Defendant-intervenor-Appellee.  4:08-cv-00388-
MHW
 OPINION
Appeal from the United States District Court
for the District of Idaho
Mikel H. Williams, Magistrate Judge, Presiding
Argued and Submitted
October 6, 2010—Seattle, Washington
Filed December 23, 2010
Before: Betty B. Fletcher, A. Wallace Tashima and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas;
Dissent by Judge B. Fletcher
124 GREATER YELLOWSTONE COALITION v. LEWIS
COUNSEL
Timothy J. Preso and Douglas L. Honnold; Earthjustice;
Bozeman, Montana; attorneys for the appellants.
Robert H. Foster, Aaron P. Avila, and Justin R. Pidot; United
States Department of Justice; Washington, D.C.; attorneys for
the appellees.
David H. Maguire; Maguire & Penrod; Pocatello, Idaho; and
James Sanderson; Afton Wyoming; attorneys for intervenor-
defendants United Steelworkers Local 632; Idaho Farm
GREATER YELLOWSTONE COALITION v. LEWIS 125
Bureau Federation; City of Pocatello, Idaho; City of Soda
Springs, Idaho; City of Afton, Wyoming; Power County,
Idaho; Bannock County, Idaho; Caribou County, Idaho; and
Lincoln County, Wyoming.
Albert P. Barker and Paul L. Arrington; Barker Rosholt &
Simpson, LLP; Boise, Idaho, attorneys for intervenor-
defendant J. R. Simplot Company.
OPINION
THOMAS, Circuit Judge:
Greater Yellowstone Coalition, Natural Resources Defense
Council, Sierra Club, and Defenders of Wildlife (collectively
“Greater Yellowstone”) appeal the district court grant of sum-
mary judgment on Greater Yellowstone’s action claiming that
the expansion of the J.R. Simplot Smoky Canyon Mine would
violate the National Environmental Policy Act (“NEPA”), the
Clean Water Act (“CWA”), and the National Forest Manage-
ment Act (“NFMA”). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I
Since 1984, J.R. Simplot Company (“Simplot”) has oper-
ated the Smoky Canyon Mine in parts of the Caribou National
Forest to acquire phosphate ore. Current mining operations
encompass five panels, labeled A to E, occupying around
5,000 acres of land. Overburden from these panels contains
waste rock with a high selenium concentration. Although
essential to animal health in small amounts, selenium is toxic
at elevated levels. Highly toxic selenium concentrations have
been found in area streams. Because of the high selenium
levels produced at the site, the existing mining operations are
subject to an ongoing site investigation and response action
126 GREATER YELLOWSTONE COALITION v. LEWIS
under the Comprehensive Environmental Response, Compen-
sation, and Liability Act.1
To extend the life of the Smoky Canyon Mine, Simplot
proposed to extract resources from two federal mineral leases
adjacent to the mine, designated as panels F and G. Simplot
sought approval from the two federal agencies with jurisdic-
tion over the federal land. The United States Bureau of Land
Management (“BLM”) has jurisdiction over all phosphate
mining leases on public land, see 30 U.S.C. § 211, and the
United States Forest Service has the authority to provide a
special use permit in furtherance of mining operations where
such activities occur on forest system lands, such as the Cari-
bou National Forest, see 36 C.F.R. § 251.
The agencies released a Draft Environmental Impact State-
ment (“DEIS”) for public comment in 2005. The agencies
held three public meetings in January 2006 and received
38,616 letters, emails, and comment forms responding to the
DEIS. In October 2007, the agencies published a Final Envi-
ronmental Impact Statement (“FEIS”). In the FEIS, the agen-
cies concluded that the mine expansion would not contribute
to violations of water quality standards. The agencies based
this conclusion on the combined effects of (1) Simplot’s
efforts to reduce the selenium pollution seeping from Smoky
Canyon’s existing pits, and (2) Simplot’s proposed store and
release cover system.
In light of the existing selenium pollution, especially in
Sage Creek, the agencies acknowledged the necessity of
remediating the current mining areas in order to avoid exacer-
bating the current water quality violations. The agencies
1
Appendix 2A of the Final Environmental Impact Statement explains
the proposed remediation efforts as of 2007, including the diversion of
Pole Canyon Creek around the Pole Canyon Overburden Area. As counsel
noted at oral arguments, such a diversion has successfully been imple-
mented.
GREATER YELLOWSTONE COALITION v. LEWIS 127
determined two areas—Pole Canyon and Panel E—were the
major sources of existing selenium pollution in Sage Creek.
The agencies noted in the FEIS that determining all sources
of existing pollution would require additional investigation.
The FEIS evaluated the remediation efforts at Pole Canyon
and Panel E, and concluded that the remediation efforts would
significantly reduce existing selenium levels.
In combination with remediating existing pollution, Sim-
plot sought to limit future selenium pollution from the mine
expansion by reducing the amount of water that would flow
through the newly extracted waste rock. Simplot conducted
scientific modeling and analysis to predict the rate at which
water would filter through the overburden and into surface
water, and the amount of selenium such water would carry.
Based on that information, Simplot designed a cover that
would be placed throughout panels F and G to limit the perco-
lation of water. However, when Simplot tested this cover
using a HELP3 water balance model, the agencies determined
the amount of precipitation entering the overburden needed to
be reduced further.
To achieve the required reductions in percolation, Simplot
developed the Deep Dinwoody Cover System, which consists
of layers of one to two feet of topsoil, three feet of material
from a geological stratum known as the Dinwoody Formation,
and two feet of chert—a coarse material that encourages
moisture storage and subsequent removal of moisture by
evapotranspiration. The agencies eventually adopted this
design in the FEIS.
To test the Dinwoody Cover, Simplot hired an independent
environmental consultant, O’Kane Consultants, that per-
formed two sets of studies using conservative estimates of the
Dinwoody Cover elements. O’Kane first used 100 years of
daily climate data to run a one-dimensional model study that
estimated annual water infiltration based on evaporation, tran-
spiration, runoff, and vertical percolation. Because the one-
128 GREATER YELLOWSTONE COALITION v. LEWIS
dimensional model did not account for horizontal movement
of water, O’Kane then performed two two-dimensional
studies. The first two-dimensional study took into account the
full size of the mine, and was run across twenty years, includ-
ing the five wettest years. The second two-dimensional study
was run across the full 100 years, but used a shortened slope
length instead of the full size of the mine. The two studies
were conducted using this methodology because a full two-
dimensional model would have taken at least three months to
complete.
During the environmental review process, the agencies con-
vened a twenty-four person interdisciplinary group of experts,
six of whom were tasked with reviewing water quality issues.
These six experts (“the technical review team”) reviewed the
results of the O’Kane studies to evaluate the models and
results. One of these experts, Dr. Christopher Carlson, the
Forest Service’s National Ground Water Program Leader,
expressed concern with the modeling. In his view, it failed to
account for the seasonal surge of snowmelt and precipitation
that occurs in the area. To address this concern, the technical
review team asked a separate consulting firm, Knight Piésold
Consulting Engineers, whether the studies accounted for sea-
sonal variations. Knight Piésold concluded that the studies did
account for seasonal variations by including in the inputs the
peak flows, even though the output (the total water percolat-
ing through the cover) was reported annually. Because the
studies showed the total annual output was no more than 0.7
inches of water, the annual output would remain the same
even if that entire 0.7 inches seeped through during the peak
flow months. After analyzing the O’Kane studies, the techni-
cal review team noted that the lack of monthly outputs “led
to uncertainty within the technical review team about the
short-term accuracy” of the results. However, the technical
review team concluded that additional modeling was not nec-
essary because the team members were confident in the long-
term results and because Simplot agreed to testing of the
cover to confirm it operated as the model predicted.
GREATER YELLOWSTONE COALITION v. LEWIS 129
Throughout the review process, the agencies collaborated
with the Idaho Department of Environmental Quality
(“IDEQ”), the Idaho agency charged with enforcing water
quality standards in Idaho. The IDEQ appointed members to
the technical review team, assisted with sampling and inter-
preting results, and participated in the modeling review. It
concluded that the mine expansion would not result in viola-
tion of either surface or groundwater quality standards, and
concurred with the agencies’ approval of the project.
The project was approved by the agencies, despite Greater
Yellowstone’s objections. After exhausting the administrative
remedies, Greater Yellowstone filed suit in district court
alleging the agencies’ approval violated the CWA, the
NFMA, and NEPA. Greater Yellowstone sought a prelimi-
nary injunction against the mine expansion. The court granted
J.R. Simplot Company, various Idaho and Wyoming cities
and counties, United Steelworkers Local 632, and the Idaho
Farm Bureau Federation intervenor status. The district court
denied the motion for a preliminary injunction and granted
summary judgment for the agencies.2 Greater Yellowstone
filed a timely appeal to this court.
We review a district court’s grant of summary judgment de
novo. Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.
2002). We may set aside agency action if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” 5 U.S.C. § 706(2)(A). As we recently
explained:
2
Greater Yellowstone appealed the district court’s denial of the prelimi-
nary injunction motion to this court. We held that the district court too nar-
rowly confined its analysis of irreparable harm, so we vacated in part and
remanded, issuing a temporary stay until such proceedings could be com-
pleted. On remand, the district court again denied the preliminary injunc-
tion motion. Greater Yellowstone appealed and filed a motion for an
emergency injunction pending appeal, which we denied. Greater Yellow-
stone’s second appeal for review of the district court’s preliminary injunc-
tion decision was dismissed as moot after the district court’s summary
judgment decision.
130 GREATER YELLOWSTONE COALITION v. LEWIS
[W]e will reverse a decision as arbitrary and capri-
cious only if the agency relied on factors Congress
did not intend it to consider, entirely failed to con-
sider an important aspect of the problem, or offered
an explanation that runs counter to the evidence
before the agency or is so implausible that it could
not be ascribed to a difference in view or the product
of agency expertise.
The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.
2008) (en banc), overruled on other grounds by Winter v. Nat-
ural Res. Def. Council, 129 S. Ct. 365 (2008) (quotations and
citations omitted). Agencies have discretion to rely on their
own experts’ reasonable opinions to resolve a conflict
between or among specialists, even if we find contrary views
more persuasive. Marsh v. Or. Natural Res. Council, 490 U.S.
360, 378 (1989). In sum, our “inquiry must ‘be searching and
careful,’ but ‘the ultimate standard of review is a narrow
one.’ ” Id. (quoting Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971)).
II
On appeal, Greater Yellowstone contends that the agencies:
(1) acted arbitrarily and capriciously in violation of NEPA,
the CWA, and the NFMA; (2) violated NEPA’s hard look and
public disclosure requirements; and (3) failed to acquire a
§ 401 certification as required under the CWA.
A
The district court correctly concluded that the agencies did
not act arbitrarily or capriciously in violation of the CWA and
the NFMA by approving the mine expansion.
[1] The CWA requires federal agencies to determine that
approved actions do not result in pollution in violation of state
water quality standards. 33 U.S.C. § 1323(a). The IDEQ has
GREATER YELLOWSTONE COALITION v. LEWIS 131
promulgated regulations establishing the maximum accept-
able level of selenium at .00005 milligrams per liter. Idaho
Admin. Code § 58.01.02.210.01. The NFMA requires the For-
est Service to develop comprehensive management plans for
each unit of the National Forest System, 16 U.S.C. § 1604(a),
and all subsequent agency action must be consistent with the
governing forest plan, id. § 1604(i). The Caribou National
Forest Plan provides that in phosphate mine areas,
“[o]verburden and soil materials shall be managed according
to state-of-the-art protocols to help prevent the release of haz-
ardous substances in excess of state and/or federal regulatory
standards.” U.S. Dep’t of Agriculture, Forest Service, Revised
Forest Plan for the Caribou National Forest 4-83 (Feb. 2003).
Although selenium pollution is currently a serious problem
at the site, the agencies concluded in their FEIS that Simplot’s
mine expansion would not result in increased selenium pollu-
tion in violation of Idaho law or the Caribou National Forest
Plan, as prohibited by the CWA and NFMA. This determina-
tion rested on the agencies’ conclusion that existing selenium
pollution could be reduced and future selenium pollution
could be limited. In reviewing agency decisions, we must
determine whether the agencies’ decision is “founded on a
rational conclusion between the facts found and the choices
made.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife,
273 F.3d 1229, 1243 (9th Cir. 2001).
[2] Greater Yellowstone argues that the agencies failed
adequately to examine other sources of existing selenium pol-
lution when concluding that remediation at two of the known
sources—Pole Canyon and Panel E—would be sufficient to
offset future pollution from the mine expansion. The agencies
acknowledged that without decreasing existing pollution, the
mine expansion would exacerbate the current selenium excee-
dences. The agencies then examined the available evidence,
which indicated that Pole Canyon and Panel E were the major
contributors of the existing selenium contamination. After
evaluating the data, the agencies determined that remediation
132 GREATER YELLOWSTONE COALITION v. LEWIS
efforts at Pole Canyon and Panel E alone would be sufficient
to offset selenium from the expansion. Because this is a ratio-
nal conclusion from the facts found, neither the CWA or the
NFMA required the agencies to identify further any other pos-
sible source of pollution.
Greater Yellowstone argues the agencies’ reliance on the
O’Kane studies was arbitrary and capricious because the
studies failed to account for seasonal variations. Although
Greater Yellowstone points to Dr. Carlson’s concerns about
whether the studies adequately modeled peak flows, the
record demonstrates that the agencies fully evaluated Dr. Car-
lson’s concerns. Not only did O’Kane assure the agencies that
the models addressed seasonal variations, the technical review
team specifically asked a separate consultant whether the
studies accounted for such changes in precipitation. All of the
experts agreed that the model effectively accounted for sea-
sonal variation in the long-term. Although the team admitted
to uncertainty about the short-term accuracy of the model, this
limited qualification of the team’s conclusions falls far short
of Greater Yellowstone’s assertion that it “failed to consider
an important aspect of the problem.” Motor Vehicle Mfrs.
Ass’n v. State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983).
[3] Because the record demonstrates that the agencies fully
considered Dr. Carlson’s concerns, examined the relevant evi-
dence, and made a reasonable conclusion, their actions were
not arbitrary or capricious.
B
[4] The district court properly concluded that the agencies
did not violate NEPA. NEPA requires two things: that an
agency “consider every significant aspect of the environmen-
tal impact of a proposed action,” and that it “inform the public
that it has indeed considered environmental concerns in its
decisionmaking process.” Baltimore Gas & Elec. Co. v. Natu-
ral Res. Def. Council, 462 U.S. 87, 97 (1983) (quotations
GREATER YELLOWSTONE COALITION v. LEWIS 133
omitted). Unlike the CWA, NEPA does not require particular
environmental standards or mandate that agencies achieve
substantive environmental results. Bering Strait Citizens for
Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d
938, 947 (9th Cir. 2008). Greater Yellowstone asserts that the
agencies violated NEPA by failing to conduct the hard look
required and by failing fully to disclose internal uncertainties
about the studies.
1
[5] Greater Yellowstone contends the agencies should have
conducted a more searching review in two ways. First,
Greater Yellowstone argues the agencies should have ordered
additional two-dimensional modeling to respond to Dr. Carl-
son’s claim that the models did not account for seasonal varia-
tions. Failure to order additional studies does not, however,
equate to a failure to evaluate the environmental impact of the
proposal. As discussed previously, the agencies’ technical
review team conducted a thorough review of the extensive
modeling studies, and specifically asked an outside consultant
to evaluate Carlson’s concerns. Although Greater Yellow-
stone may disagree with the conclusion that the model fully
accounted for seasonal variations, reliance on the model does
not constitute a NEPA violation because the agencies con-
ducted the requisite investigation. See Marsh, 490 U.S. at 378(“When specialists express conflicting views, an agency must
have discretion to rely on the reasonable opinions of its own
qualified experts even if, as an original matter, a court might
find contrary views more persuasive.”). Indeed, the record
supports the conclusion that the proposed cover design could
handle such seasonal fluctuations.
[6] The fact that the agencies relied on future testing to
verify the model’s predictions does not invalidate the previ-
ous, rigorous evaluation the agencies conducted. Because the
agencies had already satisfied NEPA’s hard look requirement,
the decision to require future testing should not now be con-
134 GREATER YELLOWSTONE COALITION v. LEWIS
strued as undermining their evaluation of the environmental
impacts of the mine expansion. Due to this testing, the agen-
cies are in a unique position to monitor the effectiveness of
the cover system. Furthermore, because the requirement of
future testing is a condition of the permit issued to Simplot,
the agencies obviously can enforce that condition of the per-
mit. Should the testing reveal significant inadequacies or mis-
calculations in the modeling, the agencies presumably are
authorized to, and will require Simplot to, take corrective
action.3
Greater Yellowstone’s reliance on Western Watersheds
Project v. Kraayenbrink, ___ F.3d __, 2010 WL 340012 (9th
Cir. Sept. 1, 2010), in which we held that the BLM’s failure
to address concerns raised by experts violated NEPA’s hard
look requirement, is misplaced. In Western Watersheds, the
BLM offered “no reasoned analysis whatsoever” in support of
its conclusion and “never seriously considered” a “deluge of
concerns.” Id. at *16-*17. In contrast, the agencies here not
only fully recognized and evaluated the impact of future sele-
nium pollution, they specifically asked an outside consultant
about the one concern Greater Yellowstone says they ignored,
justifiably relied on the vast majority of experts who said the
model accounted for seasonal variations, and further imple-
3
As everyone acknowledges, it will take years for any effects of sele-
nium pollution to materialize fully. However, the monitoring efforts
detailed in Appendix 2E of the FEIS explain how the agencies will evalu-
ate, from the day the mine opens, any changes that may affect long term
water quality. Among other things, Simplot is required to analyze ground
and surface water samples bi-annually, monitor fish population surveys,
aquatic habitat surveys, and selenium concentration inventories regularly,
and construct the cover system in phases to ensure compliance before final
implementation. Simplot must then submit the data from this monitoring
to the agencies annually. Furthermore, “[w]here non-compliance with state
and federal standards . . . is noted, BLM may issue an order to the opera-
tor. . . . If there is a failure to comply with an order or there is an imminent
threat of serious or irreparable damage to the environment a cessation of
mining order may be issued by the BLM.”
GREATER YELLOWSTONE COALITION v. LEWIS 135
mented testing and monitoring to ensure compliance. This is
all NEPA requires.
[7] The second way in which Greater Yellowstone asserts
the agencies should have conducted a more searching review
is by identifying other existing sources of pollution in addi-
tion to Pole Canyon and Panel E. By failing to evaluate other
potential sources, Greater Yellowstone contends the agencies
did not give the environmental impact of the mine expansion
the requisite “hard look.” NEPA, however, only mandates an
evaluation of a proposed plan’s future environmental impact.
Because the agencies reasonably concluded that remediation
efforts at Pole Canyon and Panel E alone would sufficiently
offset future pollution, any other investigation of existing pol-
lution was not required.
2
Greater Yellowstone argues that the agencies also violated
NEPA by failing to disclose the internal uncertainty as to the
model’s short term accuracy and by publicly denying any
uncertainty. The district court properly determined that the
agencies appropriately disclosed all relevant uncertainties.
[8] An agency, “must acknowledge and respond to com-
ments by outside parties that raise significant uncertainties
and reasonably support that such uncertainties exist.” McNair,
537 F.3d at 1001. However,
[T]o the extent our case law suggests that a NEPA
violation occurs every time [an agency] does not
affirmatively address an uncertainty in the EIS, we
have erred. After all, to require the [agency] to affir-
matively present every uncertainty in its EIS would
be an onerous requirement, given that experts in
every scientific field routinely disagree; such a
requirement might inadvertently prevent the
136 GREATER YELLOWSTONE COALITION v. LEWIS
[agency] from acting due to the burden it would
impose.
Id. We cannot hold in this case that one statement indicating
uncertainty within the technical review team represents a sig-
nificant uncertainty as to the model’s ability to predict future
pollution levels. This conclusion is supported by the volumi-
nous evidence in the record manifesting confidence in the
modeling results and the ultimate determination by the techni-
cal review team supporting the models’ predictions.
Greater Yellowstone relies on Lands Council v. Powell,
395 F.3d 1019, 1031 (9th Cir. 2005), in which we held that
the Forest Service violated NEPA when it relied upon a
flawed model and failed to disclose the limitations of that
model in the EIS. In Powell, however, the government con-
ceded that the model did not include relevant variables. Id. at
1031-32. In contrast, the agencies here argue that the relevant
variables reflecting seasonal variations were included and that
Dr. Carlson’s objections went to the time scale of the model
output rather than the input variables.
[9] Because the one sentence in the record indicating some
uncertainty within the team does not rise to the level of “sig-
nificant uncertainty” contemplated by McNair, we hold that
the agencies did not violate NEPA’s disclosure requirements.
C
The district court correctly concluded that Simplot did not
fail to acquire a § 401 certification as required under the
CWA. The § 401 certification requirement applies only to dis-
charges from point sources. See Or. Natural Desert Ass’n v.
Dombeck, 172 F.3d 1092, 1095-97 (9th Cir. 1998). Simplot
was not required to obtain a § 401 certification because the
mining pits protected by the cover do not qualify as a point
source.
GREATER YELLOWSTONE COALITION v. LEWIS 137
[10] Pursuant to § 401 of the CWA, “[a]ny applicant for a
Federal license or permit to conduct any activity . . . which
may result in any discharge into the navigable waters, shall
provide the licensing or permitting agency a certification from
the State in which the discharge originates.” 33 U.S.C.
§ 1341(a)(1). The CWA defines “discharge” as including
“any addition of any pollutant to navigable waters from any
point source.” Id. § 1362(12)(A). A point source is defined by
the CWA as “any discernible, confined and discrete convey-
ance . . . from which pollutants are or may be discharged.” Id.
§ 1362(14).
[11] The text of § 401 and the case law are clear that some
type of collection or channeling is required to classify an
activity as a point source. See Trustees for Alaska v. EPA, 749
F.2d 549, 558 (9th Cir. 1984) (“[P]oint and nonpoint sources
are not distinguished by the kind of pollution they create or
by the activity causing the pollution, but rather by whether the
pollution reaches the water through a confined, discrete con-
veyance.”). When evaluating what constitutes a point source
in the mining context specifically, we have noted that Con-
gress intended “runoff caused primarily by rainfall around
activities that employ or create pollutants” to be a nonpoint
source. Id. (citing United States v. Earth Sciences, Inc., 599
F.2d 368, 373 (10th Cir. 1979)).
[12] In the proposed mine expansion, there are two poten-
tial discharges where polluted water enters the ground and,
eventually, surface water. First, water runs off the top of the
cover. This water enters a type of stormwater drain system
before it is released. This stormwater system is exactly the
type of collection or channeling contemplated by the CWA,
and Simplot has obtained the requisite § 401 certification for
that system.
[13] The second potential source of discharge occurs when
some water seeps through the cover and into the pits contain-
ing waste rock. This is nonpoint source pollution because
138 GREATER YELLOWSTONE COALITION v. LEWIS
there is no confinement or containment of the water; the cover
is designed to divert water away from the pits. As such, the
water filters into the pits at a rate less than water would filter
into the surrounding ground that is not protected by the cover.
The small amount of precipitation (around 0.7 inches a year)
that does make it through the cover is not collected or chan-
neled, but instead filters through 200 feet of overburden and
250 to 750 feet of undisturbed material beneath the overbur-
den, eventually entering the surface water. See N.W. Envtl.
Def. Ctr. v. Brown, ___ F.3d ___, 2010 WL 3222105, at *4-
5 (9th Cir. Aug. 17, 2010) (“Stormwater that is not collected
or channeled and then discharged, but rather runs off and dis-
sipates in a natural and unimpeded manner, is not a discharge
from a point source.”). The pits that collect the waste rock do
not constitute point sources within the meaning of the CWA,
and Simplot was not required to obtain a permit under § 401.
III
The agencies did not act arbitrarily and capriciously in their
review and approval of Simplot’s proposed mine expansion
project. The agencies complied with NEPA’s procedural
requirements by fully evaluating the environmental impacts of
the mine and disclosing those results to the public. Simplot
was not required to obtain a § 401 certification. The district
court properly granted summary judgment to the agencies.
AFFIRMED.
B. Fletcher, Circuit Judge, dissenting:
I respectfully dissent. Although I concur in Part II.C of the
majority opinion, I cannot agree with the majority that the
federal agencies acted neither arbitrarily nor capriciously
when approving the Smoky Canyon Mine expansion project.
The majority violates both the letter and the spirit of the appli-
GREATER YELLOWSTONE COALITION v. LEWIS 139
cable federal environmental standards by approving agency
action despite currently lacking critical information and by
deferring key evaluations to some unspecified future date.
I
To understand fully what is at issue in this case, it is neces-
sary to focus on two key facts. First, in 2003, the Environ-
mental Protection Agency, U.S. Forest Service, and Idaho
Department of Environmental Quality signed an Administra-
tive Order on Consent pursuant to the Comprehensive Envi-
ronmental Compensation Liability Act (CERCLA) with the
J.R. Simplot Company (“Simplot”). This order required Sim-
plot to undertake a set of “removal response actions” to clean
up selenium pollution the company’s mining activities had
caused in and around the Smoky Canyon Mine. There is no
evidence, however, that Simplot has complied with its obliga-
tion to develop and implement a comprehensive clean-up plan
for pollution stemming from existing mine panels A, B, C,
and D. In fact, Simplot has only identified some of the
sources of extant selenium pollution caused by its mining
activities in Smoky Canyon.
Second, Simplot is at the helm of an industry that contrib-
utes millions of dollars annually to the economy of southeast-
ern Idaho and western Wyoming. Simplot’s Smoky Canyon
Mine in eastern Idaho provides phosphate ore through a slurry
line to a manufacturing facility known as the Don Plant in
Pocatello, Idaho. The claim is that, if the Smoky Canyon
Mine expansion project were halted, the Don Plant would face
closure. As evident from the myriad intervenors in this law
suit, significant economic interests oppose this outcome.
For example, according to the United Steelworkers Local
632, the union which represents more than 250 employees at
the Don Plant, that facility provides over $33 million in
wages, salaries, and benefits for residents of four counties.
The Don Plant is thus a key source of employment in an area
140 GREATER YELLOWSTONE COALITION v. LEWIS
where many residents lack post-high school educations and
where unemployment is chronic. Roger Chase, a former Sim-
plot employee who served as the mayor of Pocatello from
2002 through 2009, estimated that Simplot jobs paid twenty
to thirty percent more than other new jobs available in Poca-
tello. Chase also testified that Simplot “provides substantial
benefits to the City of Pocatello,” including funding for Idaho
State University. The Idaho Farm Bureau Federation has
warned that the closure of the Don Plant would adversely
affect Idaho farmers’ farming costs and overall standards of
living. County commissioners for communities adjacent to the
Don Plant estimated that the closure of either the mine or the
plant would result in the loss of millions of dollars in tax reve-
nues, jeopardizing local school district budgets and other
social services in the region.
II
Against this backdrop, Simplot applied to the Bureau of
Land Management (“BLM”) and the U.S. Forest Service (col-
lectively, “the agencies”) for permission to expand the Smoky
Canyon Mine into two new panels, F and G. The expansion
would extend the life of the mine, and of the Don Plant, by
fourteen to sixteen years. On the record before us, I cannot
agree with the majority that the agencies did not act arbitrarily
or capriciously in approving the mine expansion project, in
violation of the Clean Water Act (“CWA”), National Forest
Management Act (“NFMA”), and the National Environmental
Policy Act (“NEPA”). Rather, I would hold that the agencies
violated these federal laws in three distinct ways: (1) by
authorizing the expansion project on the basis of admittedly
incomplete information regarding sources of extant selenium
pollution, without any indication that the missing information
could not reasonably be obtained; (2) by relying on the results
of concededly inadequate modeling to predict the water qual-
ity impacts of the expansion project; and (3) by adopting what
amounts to a “test while mining” scheme, relying on post-
decisional modeling rather than additional modeling prior to
GREATER YELLOWSTONE COALITION v. LEWIS 141
project approval to evaluate the expanded mine’s environ-
mental impacts.
A
Under the CWA, states are required to compile a list of
water bodies, called a § 303(d) list, that do not achieve appli-
cable water quality standards. See 33 U.S.C. § 1313(d). The
Final Environmental Impact Statement (“FEIS”) for the mine
expansion project referenced the 2002 list, which encom-
passed twenty-four miles of streams considered impaired by
selenium. The impaired water bodies include South Fork Sage
Creek, Pole Canyon Creek, and various other tributaries to
Sage Creek. The record nowhere reveals what kind of
remediation has been undertaken.
In evaluating the mine expansion project, the agencies
determined that remediation at just two known sources of
selenium pollution, Pole Canyon and Panel E, would suffice
to offset future pollution caused from additional mining. This
determination was critical for the agencies’ authorization of
the mine expansion project, which was premised in part on
the assumption that the successful remediation of these sites
would be sufficient to offset additional selenium discharges
associated with new mining activities without pushing the
total selenium levels over legal limits.
The majority contends that the agencies’ decision that the
remediation of Pole Canyon and Panel E would adequately
offset future mine-related pollution is rational, and accepts the
agencies’ conclusion that these areas are the major sources of
existing selenium pollution. Maj. Op. at 126-27, 131. The
record, however, belies these conclusions, and indicates that
Pole Canyon and Panel E are but two of the known sources
of existing selenium pollution.
In choosing to focus on Pole Canyon and Panel E, the For-
est Service and BLM relied on a contractor employed by Sim-
142 GREATER YELLOWSTONE COALITION v. LEWIS
plot to assess these sites. It concluded that the sites were
exclusively responsible for the selenium contamination in
Hoopes Spring and South Fork Sage Creek Spring. The agen-
cies acknowledged, however, that the contractor’s conclusion
was but “one possible interpretation” of the limited available
data, and further that “additional investigation” would be
required to determine all the “source(s)” of existing selenium
contamination in the area. Indeed, the record before the agen-
cies at the time of their determination mentioned selenium
contributions from at least two other sources: Panel A and
Panel D. Yet these sources were not included in the proposed
remediation plan.
When agencies evaluate “reasonably foreseeable significant
adverse effects on the human environment in an environmen-
tal impact statement,” and incomplete information “is essen-
tial to a reasoned choice among alternatives and the overall
costs of obtaining it are not exorbitant,” NEPA requires that
that information be obtained and included in the EIS. See 40
C.F.R. §§ 1502.22, 1502.22(a). It is undeniable that the miss-
ing information at issue here — the extent of existing sele-
nium pollution at the site of a proposed mine expansion
project — “is essential to a reasoned choice among alterna-
tives.” Id. Although the agencies acknowledged the need for
“further investigation” before all sources of selenium contam-
ination at Smoky Canyon could be identified, there is no indi-
cation on the record before this court that the costs of such
investigation would be exorbitant. The agencies’ failure to
obtain and include a comprehensive list of the sources of sele-
nium contamination at Smoky Canyon, therefore, violates
federal law. This failing is particularly egregious given that
Simplot’s mining operations at Smoky Canyon have been
subject to CERCLA response actions for over seven years.
The majority holds that, since NEPA “only mandates an
evaluation of a proposed plan’s future environmental impact,”
further investigation of existing pollution was not required.
Maj. Op. at 135. This is error. Under the circumstances of this
GREATER YELLOWSTONE COALITION v. LEWIS 143
case, any meaningful evaluation of the mine expansion proj-
ect’s future environmental impacts requires a thorough under-
standing of existing pollution in the project area. Put
differently, because Simplot’s prior mining activities have so
polluted Smoky Canyon, additional mining will necessarily
exacerbate pollution in violation of state and federal environ-
mental standards unless significant remediation is completed
before any new mining occurs. A comprehensive understand-
ing of existing pollution on site is a prerequisite to any deter-
mination of where remediation efforts should begin.
Given the foregoing, the agencies’ conclusion that the
remediation of Pole Canyon and Panel E will be sufficient to
offset future pollution from the Smoky Canyon Mine expan-
sion project is hardly a rational conclusion. Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (To avoid making an arbitrary and capri-
cious determination, agencies “must examine the relevant data
and articulate a satisfactory explanation for [their] action
including a ‘rational connection between the facts found and
the choice made.’ ” (quoting Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)); see also Port of
Seattle v. FERC, 499 F.3d 1016, 1035 (9th Cir. 2007), cert.
denied, 130 S. Ct. 1051 (2010).
B
As the majority notes, one of the experts who participated
in the environmental review process was Dr. Christopher Car-
lson, the Forest Service’s National Ground Water Program
Leader. In a detailed memorandum written in January 2007,
Dr. Carlson analyzed the proposed cover system for Panels F
and G. Dr. Carlson observed that “as the modeling effort
progressed, [Simplot’s] contractor had substantial difficulty
getting the selected model to execute appropriately,” leading
it to “implement a number of short cuts and approximations
in the analyses . . . .” These shortcuts “resulted in a cover
evaluation process that did not fully characterize or evaluate
144 GREATER YELLOWSTONE COALITION v. LEWIS
the expected cover performance, design options, modeling
assumptions and input uncertainty, or the overall uncertainty
in the predictions.” This led Dr. Carlson to conclude, on the
basis of his extensive expertise in such matters, that “both the
agencies and public are left with a limited understanding of
the expected operation of the cover system, its critical design
features, and the key expected stressors.”
More specifically, Dr. Carlson noted that since the cover
would be set “at an elevation of about 7500 [feet] in the north-
ern tier of the country, the primary environmental forcings
that the cover will be expected to handle while limiting infil-
tration are seasonal in nature (e.g., freeze-thaw, snowmelt,
wetting-drying, evapotranspiration).” In other words, an abso-
lutely central question regarding the ability of the proposed
cover to function as intended involved the cover’s capacity to
respond to seasonal variations.
Yet, as Dr. Carlson noted, “the short cuts taken to speed the
[modeling] process” led to an evaluation of model output on
only an average annual basis. Of the 33 inches of precipita-
tion received each year in the area, however, approximately
22 inches — or two thirds — are associated with the spring
snowmelt. A major seasonal surge is thus predictable, and rel-
evant to the cover’s actual functioning capability. The model-
ing completed did not account for any such surges. This
critical shortcoming prompted Dr. Carlson to conclude “that
the lack of seasonal information, when the snowmelt domi-
nated hydrology of the area would be most extreme, limits
reviewers’ ability to fully characterize the expected conditions
and develop a complete understanding of the processes likely
to be important for both near-term and long-term cover per-
formance.” (emphasis added) Dr. Carlson’s objections were a
reiteration of concerns he had expressed in October 2006,
when he warned that an evaluation of the proposed cover
design that was based “purely on an annual average basis
when we know there are significant seasonal aspects to the
hydrological cycle should not be acceptable.”
GREATER YELLOWSTONE COALITION v. LEWIS 145
Rather than confront and address these fundamental inade-
quacies in the modeling completed, and instead of ordering
additional modeling to obtain the seasonal information which
the Forest Service’s own groundwater expert had deemed crit-
ical, the agencies simply concluded that “there is sufficient
information to implement the store and release cover system
developed,” and that “[n]o further cover modeling efforts are
needed.”
The majority accepts this conclusion on the basis of the
agencies’ contention that “the annual output would remain the
same even if [the] entire 0.7 inches [of water percolating
through the cover annually] seeped through during the peak
flow months.” Maj. Op. at 128. Yet there is no evidence in the
record before this court that the proposed cover design could
handle such seasonal fluctuations, or what would happen if all
or even most of the annual output seeped through the cover
in a few short weeks in the spring.1 Indeed, the agencies’ tech-
nical review team admitted that the lack of monthly output
analysis “led to uncertainty within [the team] about the short-
term accuracy” of the modeling results.2
This is, therefore, not a case involving reasonable scientific
disagreements among qualified experts. Cf. Marsh v. Or. Nat-
ural Res. Council, 490 U.S. 360, 378 (1989). Rather, this is
a case in which the agency’s expert raised substantial
uncertainties that were supported by scientific authority, and
which the agencies entirely failed to address in the FEIS.
Under NEPA, “federal agencies must specifically discuss at
1
The majority argues that the agencies’ determination is sound since
“the relevant variables reflecting seasonal variations were included [in the
modeling] and . . . Dr. Carlson’s objections went to the time scale of the
model output rather than the input variables.” Maj. Op. at 136. This obfus-
cates the issue: namely, that the model’s output predictions are not trust-
worthy in light of the corners cut and limitations Dr. Carlson identified.
2
Simplot’s offer to test the proposed cover design further to ensure that
it performs as predicted after the mine expansion is underway is another
indication that the agencies’ conclusions lack adequate factual bases.
146 GREATER YELLOWSTONE COALITION v. LEWIS
appropriate points in the final [EIS] any responsible opposing
view which was not adequately addressed in the draft [EIS]
and . . . indicate the [agencies]’s response to the issues raised.
A failure to do so is itself a NEPA violation.” Wildwest Inst.
v. Bull, 547 F.3d 1162, 1171 (9th Cir. 2008) (citing 40 C.F.R.
§ 1502.9(b)) (alterations in original; quotation marks omit-
ted).
Rather than address Dr. Carlson’s measured analysis, the
defendants make every effort to minimize or discredit the
import of his opinions, a lead the majority willingly follows.
But Dr. Carlson is not just one person on a larger team of
experts. He is the leader of the U.S. Forest Service’s National
Ground Water Program, and, as such, has deep expertise on
the water pollution problems that lie at the very heart of the
mine expansion project. Moreover, the additional modeling
necessary to ascertain the seasonal viability of the proposed
cover design could, by all accounts, have been completed in
as little as four to ten days. The defendants’ dismissive atti-
tude, therefore, may reflect little more than uncertainty as to
what might surface if additional studies or investigation had
been completed. The court should not endorse such an aver-
sion to finding out the truth.
The majority emphasizes that all the experts involved
“agreed that the model effectively accounted for seasonal
variation in the long-term.” Maj. Op. at 132. This is an over-
statement; there is no indication that Dr. Carlson ever found
that the modeling completed was effective in any respect.
Even assuming that the majority’s characterization is accu-
rate, however, it is irrelevant to the questions raised on this
appeal and to the court’s role in evaluating the adequacy of
agency action. Even if the model effectively accounted for
seasonal variation in the long-term, this alone is insufficient,
because the mine expansion project will, at most, extend the
life of the Smoky Canyon Mine for fourteen to sixteen years.
The agencies’ conclusions, and the majority’s opinion, leave
open the possibility that significant environmental pollution
GREATER YELLOWSTONE COALITION v. LEWIS 147
will occur at the Smoky Canyon Mine in the near term. If this
is not “fail[ure] to consider an important aspect of the prob-
lem,” what is? Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.
C
NEPA’s “look before you leap” requirements dictate that
agencies “consider every significant aspect of the environ-
mental impact of a proposed action” before that action is
approved. Bering Strait Citizens for Responsible Res. Dev. v.
U.S. Army Corps of Engineers, 524 F.3d 938, 947 (9th Cir.
2008) (quoting Baltimore Gas & Elec. Co. v. Natural Res.
Defense Council, Inc., 462 U.S. 87, 97 (1983)). It is not
appropriate or acceptable “to defer consideration of cumula-
tive impacts to a future date. ‘NEPA requires consideration of
the potential impact of an action before the action takes
place.’ ” Neighbors of Cuddy Mountain v. U.S. Forest Serv.,
137 F.3d 1372, 1380 (9th Cir. 1998) (quoting City of Tenakee
Springs v. Clough, 915 F.2d 1308, 1313 (9th Cir. 1990)
(emphasis in original)).
The agencies’ actions here are completely contrary to these
well-established legal principles. As evident from the forego-
ing, the agencies did not conduct a “previous, rigorous evalu-
ation” of the proposed cover design via their limited
modeling. Maj. Op. at 133. The majority’s contention that this
modeling “satisfied NEPA’s hard look requirement” is belied
by the record before this court. Indeed, the majority seems to
recognize that myriad lingering questions central to a thor-
ough evaluation of the mine expansion project remain:
“Should the testing reveal significant inadequacies or miscal-
culations in the modeling,” the majority asserts, “the agencies
presumably are authorized to, and will require Simplot to,
take corrective action.” Id.It is telling that no legal authority is cited for this proce-
dure. The majority’s approval is especially troubling given
that the proposed expansion might extend the life of the mine
148 GREATER YELLOWSTONE COALITION v. LEWIS
for another fourteen to sixteen years, a time period in which
the full extent of new pollution caused may not even register.3
When the effects from the expansion become clear, Simplot
may be “long gone” — leaving selenium-contaminated water-
ways responsible for abnormalities in aquatic life, dead live-
stock, and other destructive consequences in its wake.
III
The environmental harm that will result from expanded
mining in Smoky Canyon can only be prevented with careful,
reasoned evaluations that account for detailed scientific opin-
ions and tailor remedial steps in light of those opinions. The
majority’s willingness to accept the flawed and incomplete
assessments of the agencies in this case amounts to an abdica-
tion of the judicial function. We should hold that the record
before this court reveals significant omissions and woefully
inadequate assessments of known and unknown problems
associated with the proposed cover design; that, absent a com-
prehensive assessment of existing sources of selenium pollu-
tion in the Smoky Canyon area, the remediation efforts
necessary to clean up existing pollution Simplot has already
created cannot proceed; and that the agencies’ decision to
approve the mine expansion project in light of these deficien-
cies is arbitrary and capricious and in violation of federal
environmental law.
I dissent.
3
The agencies concede that it takes ten years for new selenium pollution
to register, and for remediation efforts to show any results.