Center for Biolo v. Doi ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY; 
WESTERN LAND EXCHANGE PROJECT;
SIERRA CLUB,
Plaintiffs-Appellants,
No. 07-16423
v.
UNITED STATES DEPARTMENT OF THE  D.C. No.
CV-01-01758-ROS
INTERIOR; BUREAU OF LAND
MANAGEMENT, OPINION
Defendants-Appellees,
ASARCO LLC,
Defendant-Intervenor-Appellee.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
February 10, 2009—San Francisco, California
Filed September 14, 2009
Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge Tallman
13269
13272 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
COUNSEL
Roger Flynn, Jeffrey C. Parsons, WESTERN MINING
ACTION PROJECT, Lyons, Colorado, for the appellants.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13273
Edward S. Geldermann, Mark R. Haag, US DEPARTMENT
OF JUSTICE, Washington, D.C., Cynthia M. Parsons,
OFFICE OF THE U.S. ATTORNEY, Phoenix, Arizona, Nor-
man Daniel James, FENNEMORE CRAIG PC, Phoenix, Ari-
zona, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
The Center for Biological Diversity, the Western Land
Exchange Project, and the Sierra Club (collectively, “Appel-
lants”) bring suit against Asarco LLC (“Asarco”), a mining
company, and the Department of Interior and the Bureau of
Land Management (collectively, “BLM”). Appellants contend
that the BLM’s approval of a land exchange violates the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321-70; the Federal Land Policy and Management Act
(“FLPMA”), 43 U.S.C. §§ 1701-87; and the Mining Law of
1872, 30 U.S.C. §§ 21-54.
If the proposed exchange occurs, Asarco would take fee
simple ownership of the land. In that event, Asarco’s use of
the land would not be subject to the requirements of the Min-
ing Law of 1872.
If the proposed exchange does not occur, the land will con-
tinue to be owned by the United States. In that event, Asarco
would not be permitted to conduct mining operations on the
land unless it complies with the Mining Law of 1872. Specifi-
cally, Asarco could not conduct a new mining operation on
the land without first submitting a Mining Plan of Operations
(“MPO”) to the BLM. The MPO would have to include
detailed information about the operations, management, moni-
toring, and environmental impacts of the proposed mining
activities. The BLM would then have to approve the MPO
before the new mining could proceed.
13274 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
As part of the process of approving the land exchange, the
BLM prepared a Final Environmental Impact Statement
(“FEIS”) pursuant to NEPA. In the FEIS, the BLM assumed
that Asarco would carry out mining operations on the land in
the same manner whether or not the land exchange occurred.
Because of this assumption, the FEIS contains no comparative
analysis of the environmental consequences for the different
alternatives proposed. The BLM made the same assumption
in its Record of Decision (“ROD”) approving the land
exchange. The ROD, like the FEIS, contains no analysis of
how the environmental consequences — and the implications
for the public interest — would differ depending on whether
the proposed land exchange occurs.
Because the BLM has conducted no comparative analysis,
we hold that it has not “taken a ‘hard look’ at the environmen-
tal consequences of its proposed action” in violation of
NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161
F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the
proposed land exchange was “arbitrary and capricious” in vio-
lation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir.
1992). We reverse the decision of the district court approving
the actions of the BLM.
I. Background
Asarco owns and operates the Ray Mine complex in Gila
and Pinal Counties, Arizona. The complex includes a 265,000
ton-per-day open pit copper mine, a copper smelter with an
acid plant, solution extraction/electrowinning plants, mills,
concentrators, leaching systems, and related support facilities.
Ore from the mine is transported eighteen miles to the Hayden
Smelter for processing. In 1996, the complex produced 430
million pounds of copper anodes, over 70 million pounds of
copper cathodes, 1.3 million ounces of silver in concentrate,
and 623,000 tons of sulfuric acid. The Ray Mine is the second
most productive copper mine in Arizona and the third most
productive copper mine in the United States.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13275
In 1994, Asarco proposed a land exchange with the BLM
in order to consolidate its holdings and to support and expand
its mining operations at the complex. As amended in 1997,
the proposed land exchange would convey to Asarco in fee
simple thirty-one parcels of public land totaling 10,976 acres
(the “selected lands”). In return, Asarco would convey to the
BLM eighteen parcels of private land totaling roughly 7,300
acres (the “offered lands”). FLPMA authorizes the Secretary
of Interior to approve land exchanges. 43 U.S.C. § 1716.
The United States owns and the BLM administers as full
estates 8,196 acres of the selected lands. The remaining 2,780
acres of the selected lands are owned and administered as
“split estates.” Asarco owns or is purchasing, in transactions
not at issue in this appeal, the surface estate of these lands,
while the United States owns and the BLM administers the
mineral estate. Twenty-three of the thirty-one parcels of
selected lands are located near the Ray Mine and the commu-
nity of Ray, Arizona. Five of the parcels are located twelve
to fifteen miles southeast of the Ray Mine, near the communi-
ties of Hayden and Winkleman, Arizona. The remaining three
parcels are located about 50 miles west of the Ray Mine near
the community of Casa Grande, Arizona.
The selected lands provide important wildlife and plant
habitat, including high priority reintroduction habitat for
desert bighorn sheep, 6,860 acres of endangered desert tor-
toise habitat, and potential habitat for threatened and endan-
gered birds. Upland plant communities cover 99.2% of the
selected lands and include riparian plant communities and
three plant species designated for special status by the BLM.
Some of the selected lands are immediately adjacent to the
White Canyon Area of Critical Environmental Concern, and
some are adjacent to or in close proximity to the White Can-
yon Wilderness. The selected lands include seventy-eight
archaeological sites, of which forty are regarded as eligible
for nomination to the National Register of Historic Places.
13276 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Asarco and the BLM are forthright in stating that they fore-
see the following five uses for the selected lands following the
land exchange. These uses are described with specified acre-
age in the FEIS as follows:
(1) Existing mining: 272 acres (2%) already have had and
would continue to have substantial surface disturbance due to
Asarco’s mining operations.
(2) Production operations and support areas: 3,614 acres
(33%) would be used to expand open pits, construct haul
roads, and deposit solution-extraction rock. This would result
in substantial disturbance to between 25% and 100% of the
land surface.
(3) Transition: 875 acres (8%) would be used as “raveling
areas” around overburden and leach rock deposition areas,
access roads, storm water diversion ditches, and administra-
tive facilities. This would result in some disturbance to
between 5% and 25% of the land surface.
(4) Intermittent use: 4,481 acres (41%) would not be sub-
ject to direct mining activity and would be used to consolidate
Asarco’s ownership and to buffer neighboring landowners
from mining operations.
(5) Long-range prospect: 1,733 acres (16%) could be used
for mine development and support in the future resulting in an
unknown degree of surface disturbance.
The selected lands are now encumbered by 751 mining
claims or mill site claims under the Mining Law of 1872, of
which 747 are held by Asarco. These claims are unpatented,
and the BLM has not determined if they are valid. Every par-
cel of the selected lands except for Parcel CH-5 (comprising
480 acres) is encumbered by at least one such claim.
The offered lands comprise five parcels or groups of par-
cels: the Knisely Ranch Parcels (160 acres), the Gila River
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13277
Parcel (320 acres), the Tomlin Parcels (320 acres), the
McCracken Mountain Parcels (6,384 acres), and the Sacra-
mento Valley Parcel (120 acres). Following the land
exchange, no mining claims would exist or be permitted on
the Knisely Ranch Parcels. The BLM would petition to with-
draw the Gila River Parcel and Tomlin Parcels from mineral
entry, which, if successful, would mean that only persons who
had established a valid mining claim before withdrawal would
be permitted to mine on those parcels. Clouser v. Espy, 42
F.3d 1522, 1524-25 (9th Cir. 1994). The McCracken Moun-
tain Parcels, which comprise 87% of the offered lands, and
the Sacramento Valley Parcel would remain open to mineral
entry. Of the 7,300 acres of offered lands, 1,126 acres exhibit
moderate potential for locatable mineral resources, with the
rest exhibiting low potential for locatable mineral resources.
The offered lands include riparian plant communities and
important wildlife habitat, including habitat for some special
status species, potential habitat for some threatened or endan-
gered species, including peregrine falcons, and proposed criti-
cal habitat for the cactus ferruginous pygmy owl. The offered
lands include segments of the Gila River Riparian Manage-
ment Area, the Black Mountains (Burro) Herd Management
Area, the Cerbat (Wild Horse) Herd Area, the Big Sandy
(Burro) Herd Management Area, and the McCracken Desert
Tortoise Habitat Area of Critical Environmental Concern.
Between 1995 and 1997, the BLM consulted with various
federal, state, and local agencies, elected representatives, non-
governmental organizations, tribal governments, and private
individuals concerning the land exchange. The BLM pub-
lished a Draft Environmental Impact Statement (“DEIS”) in
October 1998.
In January 1999, after having reviewed the DEIS, the fed-
eral Environmental Protection Agency (“EPA”) sent the BLM
a three-page single-spaced letter accompanied by thirteen
13278 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
pages of single-spaced comments. The EPA’s letter stated,
inter alia:
Over the past several decades, approximately one
billion tons of material have been excavated at the
Asarco Ray complex. The proposed action would
enable Asarco to excavate and process approxi-
mately three billion more tons over the next 40
years. In several meetings, letters, and conference
calls with BLM since scoping for this project began
in 1994, EPA has recommended that the DEIS pro-
vide certain information that we believe would be
useful and relevant in a NEPA analysis for a land
exchange where the foreseeable future uses of min-
ing are known. In our comment letter on the prelimi-
nary DEIS, we stated that the document did not
appear to have evaluated all reasonable alternatives
and strongly recommended that additional informa-
tion regarding the alternatives be included in the
DEIS. In that letter and several others to the DEIS,
we also recommended that the potential impacts of
the land exchange and the foreseeable future mining
be discussed in much greater detail in the DEIS and
specifically outlined the needed information.
Although BLM has not received an acceptable
mine plan of operations (MPO) from Asarco, it
appears that Asarco has fairly specific plans for the
selected parcels. We believe that additional detailed
information regarding geology, geochemistry,
hydrology, and biological resources is relevant and
necessary for this analysis to constitute full disclo-
sure under NEPA. It is also evident that all reason-
able alternatives have not been evaluated and that
impacts of foreseeable activities on the selected
lands have not been sufficiently addressed in the
DEIS. We are extremely dismayed that the BLM has
ignored most of our recommendations in finalizing
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13279
the DEIS and are particularly troubled that the DEIS
was published at a time when our headquarters office
was still discussing the issues with BLM headquar-
ters and the two agencies had not yet come to a reso-
lution.
We have rated this DEIS as EO-2 — Environmen-
tal Objections-Insufficient Information. We have
strong objections to the proposed project because we
believe there is potential for significant environmen-
tal degradation that could be corrected by project
modification or other feasible alternatives . . . . We
continue to contend that a substantial amount of
information should be added to the EIS for BLM to
meet its public disclosure obligation.
(emphasis added).
Public hearings were held on the DEIS. The BLM received
sixty-one comment letters or notifications of no comment
from interested individuals and groups. After reviewing and
responding to these comments, the BLM issued its Final Envi-
ronmental Impact Statement (“FEIS”) in June 1999. The FEIS
differs from the DEIS in only minor respects.
The FEIS analyzed the environmental, cultural, and socio-
economic impacts of the proposed land exchange; the “Buck-
eye Alternative,” under which the selected lands would
decrease to 10,176 acres and the offered lands to 6,659 acres;
the “Copper Butte Alternative,” under which the selected
lands would decrease to 9,161 acres and the offered lands to
5,601 acres; and the “No Action Alternative,” under which no
lands would be exchanged. The FEIS identified but elected
not to study in depth seven other alternatives.
The FEIS stated that the “foreseeable uses of the selected
lands are mining-related uses and are expected to occur under
all alternatives.” (emphasis added). As explained in the FEIS:
13280 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
[A] land exchange is not required for mining-related
activities to take place on the selected lands. Asarco
currently holds the vast majority of the mining
claims on the public lands selected for exchange, and
through these mining claims, Asarco has the right to
pursue development on the selected lands for mining
or mining-related uses . . . .
That is, as stated in the FEIS “foreseeable uses of the selected
lands are assumed to be the same for all alternatives.”
(emphasis added).
The BLM’s stated assumption that mining was the foresee-
able use for the selected lands and that the manner and inten-
sity of mining would be “the same for all alternatives” — that
is, whether or not there was a land exchange — played a criti-
cal role in the FEIS. The FEIS contains an analysis of the
environmental consequences of mining for upland plant com-
munities, riparian plant communities, state and BLM special
status plants, wildlife habitats, wildlife (including state and
BLM special status wildlife as well as wildlife deemed threat-
ened and endangered under federal law), and other resources.
However, the FEIS contained only a single analysis, because
the BLM assumed that the environmental consequences of
mining would be the same under every alternative. Because
the BLM assumed that the environmental consequences
would be the same under every alternative, the FEIS contains
no comparative analysis of those alternatives.
In April 2000, the BLM issued a Record of Decision
(“ROD”) in which it did two things. First, the BLM amended
two existing Resource Management Plans (“RMPs”) to
change the designation of the selected lands under FLPMA.
It amended the 1988 “Phoenix RMP” to change the designa-
tion of 9,906 acres in the White Canyon Resource Conserva-
tion Area from “retention” to “disposal.” And it amended the
1993 “Safford District RMP” to change the designation of
433 acres in the Long-Term Management Area from “reten-
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13281
tion” to “disposal.” These changes in the Phoenix and Safford
District RMPs were prerequisites to the conveyance of the
selected lands from public ownership. As a consequence of
these changes, the BLM would no longer be required to man-
age the selected lands as multiple-use lands under FLPMA.
Second, the BLM approved the proposed land exchange.
Section 206 of FLPMA forbids land exchanges unless the
“public interest will be well served.” 43 U.S.C. § 1716(a).
This section directs the Secretary of Interior to “give full con-
sideration” to better land management and “needs for lands
for the economy, . . . food, fiber, minerals, and fish and wild-
life” when determining the public interest. Id. In part, the
ROD justified the exchange by denying that any harm to the
public would result from conveying the selected lands to pri-
vate ownership. The ROD concluded that the public interest
would not be harmed by the conveyance by assuming, as the
FEIS had assumed, that mining would be conducted in the
same manner whether or not the exchange occurred. The
ROD stated that “the BLM considers the continuation of min-
ing as the foreseeable use of most of the selected federal lands
whether the exchange occurs or not.”
The EPA, the federal Bureau of Indian Affairs, and the
Sierra Club objected to the ROD. The BLM summarized their
objection as follows: “A Mine Plan of Operation is necessary
to complete analysis of the land exchange impacts. BLM’s
assumption is wrong that the foreseeable use reflects mining
that would take place whether or not land exchange occurs.”
(emphasis added). The ROD did not answer the objection, but
instead referred the reader to the FEIS. The ROD stated, “This
issue has been addressed in the FEIS General Response sec-
tion 7.4.5 and 7.4.6.” In those sections of the FEIS, the BLM
responded to the first sentence of the objection, stating that
MPOs are not required for mining that is anticipated after the
selected lands become privately owned. However, the BLM
did not respond to the second sentence (italicized above),
13282 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
which objected that the BLM’s “assumption” that the same
mining would occur was “wrong.”
In July 2001, Appellants filed an administrative appeal and
a request to stay the land exchange with the Interior Board of
Land Appeals (“IBLA”). When IBLA failed to act on the
Appellants’ request within forty-five days as mandated by 43
C.F.R. § 4.21(b)(4), Appellants filed suit in federal district
court. IBLA then stayed the land exchange pending its dispo-
sition of the appeal, and the district court suspended its pro-
ceedings pending a decision from IBLA.
In August 2004, IBLA denied the Appellants’ appeal. Ctr.
for Biological Diversity, et al., 162 IBLA 268 (2004). One
Administrative Judge wrote separately, concurring only in the
result. For her, the difficult issue was whether the BLM had
complied with NEPA. She wrote:
I am perturbed by BLM’s assertion that foreseeable
consequences of this exchange are not possible to
predict or are speculative. It appears that the record
contains considerable information indicating where
within the selected lands mineral resources are
located and where they are not. It is this information
that forms the basis for the classification of foresee-
able uses (“existing,” “production,” “transition,” “in-
termittent use,” and “long-range prospect”)
identified for the selected lands in the FEIS. Further,
BLM changed its land use designations for the vast
majority of the selected lands in the Phoenix and
Safford Resource Management Plans from “resource
conservation area” and “long term management
area” to “suitable for disposal” in the context of
implementing this exchange decision . . . . Combin-
ing these two points of information — the knowable
classifications within the context of mining of the
selected lands with the change in land designation —
made foreseeable impacts more easily presentable in
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13283
a manner not easily found in this EIS and less specu-
lative than BLM suggests.
Id. at 291 (Hemmer, Admin. J., concurring) (emphasis added)
(internal citations omitted).
On June 6, 2007, the district court granted summary judg-
ment, rejecting Appellants’ challenge to the proposed land
exchange. Appellants timely appealed to this court.
II. Standard of Review
This court reviews the district court’s grant of summary
judgment de novo. See, e.g., United States v. Tacoma, 332
F.3d 574, 578 (9th Cir. 2003). The Administrative Procedure
Act authorizes this court to set aside agency actions, findings,
or conclusions that are “unsupported by substantial evidence”
in the record. 5 U.S.C. § 706(2)(E). Under NEPA, “we must
ensure that the agency has taken a ‘hard look’ at the environ-
mental consequences of its proposed action . . . . [W]e must
defer to an agency’s decision that is ‘fully informed and well-
considered.’ However, we need not forgive a ‘clear error of
judgment.’ ” Blue Mountains Biodiversity Project v. Black-
wood, 161 F.3d 1208, 1211 (9th Cir. 1998) (internal citations
omitted). We review the BLM’s interpretation of FLPMA
under the deferential “arbitrary and capricious” standard. See
Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992).
III. Discussion
For the reasons that follow, we hold that substantial evi-
dence in the record does not support the BLM’s assumption
that mining would occur on the selected lands in the same
manner regardless of the land exchange. Therefore, we hold
that the BLM violated NEPA by failing to take a “hard look”
at the environmental consequences of the exchange in the
FEIS. We hold further that the conclusion in the ROD that the
proposed land exchange is in the “public interest” within the
13284 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
meaning of FLPMA was arbitrary and capricious because it
was based on an erroneous assumption. We do not reach the
question whether the Mining Law of 1872 would be violated
if the land exchange were to be completed in its current form.
We discuss NEPA, FLPMA, and the Mining Law in turn.
A. NEPA
In NEPA, Congress recognized the “profound impact” of
human activities, including “resource exploitation,” on the
environment and declared a national policy “to create and
maintain conditions under which man and nature can exist in
productive harmony.” 42 U.S.C. § 4331(a). To further this
policy, NEPA “establishes ‘action-forcing’ procedures that
require agencies to take a ‘hard look’ at environmental conse-
quences.” Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.
2000) (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 348 (1989)). Chief among these procedures is
the preparation of an environmental impact statement (“EIS”).
[1] NEPA requires preparation of an EIS for “major Fed-
eral actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). Every EIS must “pro-
vide [a] full and fair discussion of significant environmental
impacts” of the proposed agency action. 40 C.F.R. § 1502.1.
An EIS serves two purposes:
First, [i]t ensures that the agency, in reaching its
decision, will have available, and will carefully con-
sider, detailed information concerning significant
environmental impacts. Second, it guarantees that
the relevant information will be made available to
the larger audience that may also play a role in both
the decisionmaking process and the implementation
of that decision.
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)
(internal quotation marks and citations omitted).
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13285
[2] In addition to the proposed agency action, every EIS
must “[r]igorously explore and objectively evaluate all rea-
sonable alternatives” to that action. 40 C.F.R. § 1502.14(a).
The analysis of alternatives to the proposed action is “ ‘the
heart of the environmental impact statement.’ ” Or. Natural
Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1121
(9th Cir. 2008) (quoting 40 C.F.R. § 1502.14). “The existence
of reasonable but unexamined alternatives renders an EIS
inadequate.” Friends of Southeast’s Future v. Morrison, 153
F.3d 1059, 1065 (9th Cir. 1998).
The FEIS prepared by the BLM examined the environmen-
tal impacts of the proposed land exchange and three alterna-
tives: the Buckeye Alternative, the Copper Butte Alternative,
and the No Action Alternative. Under the No Action Alterna-
tive, the exchange would not proceed, and the selected lands
would remain under public ownership. A no action alternative
in an EIS allows policymakers and the public to compare the
environmental consequences of the status quo to the conse-
quences of the proposed action. The no action alternative is
meant to “provide a baseline against which the action alterna-
tive[ ]” — in this case, the land exchange — is evaluated. Id.
A no action alternative must be considered in every EIS. See
40 C.F.R. § 1502.14(d).
For the reasons that follow, we conclude that the FEIS
improperly assumed that the environmental consequences of
the land exchange alternative and the No Action Alternative
would be the same, and that this assumption fatally under-
mined the analysis in the FEIS.
Under the Mining Law of 1872, Asarco has a right to
engage in mining on the selected lands even if the exchange
does not proceed. Asarco has this right based on its 747 unpa-
tented mining and mill site claims. See, e.g., 30 U.S.C.
§ 612(a) (holders of unpatented mining claims can engage in
“prospecting, mining or processing operations and uses rea-
sonably incident thereto”); 43 C.F.R. §§ 3809.5, 3809.10(a)
13286 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
(claimants can engage in “casual use” mining on unpatented
claims without even notifying the BLM); United States v.
Shumway, 199 F.3d 1093, 1105 (9th Cir. 1999) (“The owner
of a mining or mill site claim does not need a patent, or a
vested right to issuance of a patent, to possess and use the
property.”); Independence Mining Co. v. Babbitt, 105 F.3d
502, 506 (9th Cir. 1997) (an unpatented claim “entitles the
claimant to ‘the right to extract all minerals from the claim
without paying royalties to the United States’ ”) (citation
omitted).
The BLM based its assumption that mining would occur in
the same manner with or without the land exchange on the
fact that Asarco already holds mining claims on the selected
lands. However, if the proposed land exchange does not
occur, the selected lands would remain in public hands. In that
event, Asarco’s ability to conduct mining operations on its
claims would be subject to the Mining Law of 1872. In con-
trast, if the proposed land exchange occurs, Asarco would
own the selected lands in fee simple. In that event, Asarco’s
use of the land would not be subject to the requirements of the
Mining Law. A description of the operation of the Mining
Law shows that the BLM’s assumption that the environmental
consequences of these two alternatives would be the same is
unwarranted.
Without the land exchange, proceeding under the Mining
Law, Asarco would have to submit one or more Mining Plan
of Operations (“MPOs”) to the BLM before engaging in min-
ing operations on its claims if those operations are greater
than a “casual use” that would disturb more than five acres of
land. See 43 C.F.R. §§ 3809.11, 3809.21. “Casual use means
activities ordinarily resulting in no or negligible disturbance
of the public lands or resources,” such as collection of mineral
specimens using hand tools. Id. § 3809.5. It is clear from the
FEIS that Asarco intends to engage in mining operations on
the selected lands that would be greater than casual use, and
that one or more MPOs would be required.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13287
Each MPO would have to provide a significant amount of
information on Asarco’s mining plans, including “maps . . .
showing the location of exploration activities, drill sites, min-
ing activities, processing facilities, waste rock and tailing dis-
posal areas, support facilities, structures, buildings, and access
routes”; “[p]reliminary or conceptual designs, cross sections,
and operating plans for mining areas, processing facilities,
and waste rock and tailing disposal facilities”; “[w]ater man-
agement plans”; “[r]ock characterization and handling plans”;
“[q]uality assurance plans”; “[s]pill contingency plans”;
“[p]lans for all access roads, water supply pipelines, and
power or utility services”; reclamation plans that address
“[d]rill-hole plugging,” “[r]egrading and reshaping,” “[m]ine
reclamation,” “[r]iparian mitigation,” “[w]ildlife habitat reha-
bilitation,” “[t]opsoil handling,” “[i]solation and control of
acid-forming, toxic, or deleterious materials,” “[r]emoval or
stabilization of buildings, structures and support facilities,”
and “[p]ost-closure management”; a detailed monitoring plan
to ensure compliance with environmental laws and regula-
tions; a “[r]eclamation cost estimate”; and “[o]perational and
baseline environmental information,” such as information on
“geology, paleontological resources, cave resources, hydrol-
ogy, soils, vegetation, wildlife, air quality, cultural resources,
and socioeconomic conditions in and around the project area,”
as the BLM may request. See id. § 3809.401.
For every MPO Asarco submits, the BLM may, depending
on the details of the MPO and the public land involved, need
to gather additional information before deciding whether to
approve it. For example, the BLM may require Asarco to
“collect adequate baseline data” against which to compare
environmental data collected during or after mining takes
place. Id. § 3809.411(a)(3)(i). The selected lands include doz-
ens of archaeological sites, many of which, according to the
FEIS, would be destroyed or severely disturbed if the land
exchange proceeded. Consequently, the BLM may have to
complete consultation required under the National Historical
Preservation Act. See id. § 3809.411(a)(3)(iii). The BLM may
13288 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
have to complete consultation under the Endangered Species
Act and/or the Magnuson-Stevens Fishery Conservation and
Management Act. See id. The BLM may have to consult with
Native American tribes. See id. § 3809.411(a)(3)(iv). It may
have to consult with the State of Arizona to ensure that
Asarco — which in the past has violated the federal Clean
Water Act at the Ray Mine Complex — complies with State
water quality requirements. See id. § 3809.411(a)(3)(ix). Fur-
ther, an MPO must satisfy the performance standards
described in 43 C.F.R. § 3809.420. These include standards
regarding technology and practices, sequencing of operations,
land use, mitigation, concurrent reclamation, availability of
access routes, disposal of waste, protection of cultural and
paleontological resources, fire prevention, and public safety.
See 43 C.F.R. § 3809.420.
In connection with any approval of an MPO submitted by
Asarco, the BLM would also have to comply with NEPA. See
id. § 3809.411(a)(3)(ii). NEPA requires the BLM to prepare
an EIS before approving an MPO if that approval would con-
stitute a “major Federal action[ ] significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2)(C).
Based on the uses that Asarco and the BLM foresee for the
selected lands, as detailed in the FEIS, it is certain that BLM
approval of an MPO for the selected lands would constitute
a “major federal action.” Each EIS would have to provide
detailed information on the environmental impacts of Asar-
co’s planned mining as outlined in the MPO. Because the
MPO submitted by Asarco would form the basis for any envi-
ronmental review, an EIS prepared in connection with an
MPO would provide a much more detailed analysis of the
environmental consequences of the proposed mining and all
reasonable alternatives than the FEIS that is now before us.
This is not an empty requirement. Although “NEPA itself
does not mandate particular results, but simply prescribes the
necessary process” of preparing an EIS, that process is “al-
most certain to affect the agency’s substantive decision.” Rob-
ertson, 490 U.S. at 350.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13289
In addition, an MPO cannot be approved unless it complies
with FLPMA. Under FLPMA, the Secretary of Interior is
required to “take any action necessary to prevent unnecessary
or undue degradation of the [public] lands.” 43 U.S.C.
§ 1732(b). BLM regulations define “unnecessary or undue
degradation” to mean “conditions, activities, or practices” that
fail to comply with the “performance standards in
§ 3809.420,” fail to comply with “other Federal and state laws
related to environmental protection and protection of cultural
resources,” are “not ‘reasonably incident’ to prospecting, min-
ing, or processing operations” as defined in 43 C.F.R.
§ 3715.0-5, or “[f]ail to attain a stated level of protection or
reclamation required by specific laws” in special status areas.
43 C.F.R. § 3809.5.
[3] To summarize, if the selected lands remain in public
hands, Asarco will be required to obtain the approval of the
BLM for one or more MPOs before it can conduct additional
mining operations on those lands. It is highly likely that the
process of obtaining BLM approval of one or more MPOs
will substantially affect the manner in which mining opera-
tions will occur on the selected lands. By contrast, if the
selected lands are conveyed to Asarco in fee simple, Asarco
will be able to conduct its mining operations without being
constrained in any way by the MPO process.
In its 1999 letter to the BLM, the EPA objected strenuously
to the draft EIS. The EPA noted that “it appears that Asarco
has fairly specific plans for the selected parcels,” and the EPA
“continue[d] to contend that a substantial amount of informa-
tion should be added to the EIS for the BLM to meet its pub-
lic disclosure obligation.” In her 2004 separate concurrence in
the IBLA’s decision, Administrative Judge Hammer noted
that she was “perturbed by BLM’s assertion that foreseeable
consequences of this exchange are not possible to predict or
are speculative.” She wrote that the information available to
the BLM “made foreseeable impacts more easily presentable
in a manner not easily found in this EIS and less speculative
13290 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
than BLM suggests.” The FEIS itself contains detailed infor-
mation about the mining activities that Asarco intends to con-
duct on the selected lands, as well as the acreage to be
devoted to such activities.
It is thus plain from the record that both Asarco and the
BLM have a fairly detailed knowledge of what Asarco intends
to do if the land exchange is approved. This knowledge would
permit the BLM to prepare a FEIS analyzing the likely con-
tents of the one or more MPOs that Asarco would be required
to submit in order to carry out its intentions on the selected
lands if they were to remain in public hands, as well as the
likely response by the BLM to such MPOs.
[4] It is black letter law that NEPA requires a comparative
analysis of the environmental consequences of the alternatives
before the agency. In the case before us, that analysis would
compare the environmental consequences of the no-action
alternative, in which Asarco would own mining claims on
government-owned land, and the land exchange alternative, in
which Asarco would own the land in fee simple. Under the
first alternative, Asarco would have to prepare MPOs in
accordance with the Mining Law. Under the second alterna-
tive, Asarco would not be restricted in any way by the Mining
Law of 1872. In these circumstances, NEPA requires a mean-
ingful analysis of the different environmental consequences
that would result from public ownership (with an MPO
requirement) and private ownership (without an MPO require-
ment). Without such an analysis, the BLM has not conducted
the “hard look” that NEPA requires. Rather, the BLM has
averted its eyes from what is in plain view before it.
[5] To summarize, NEPA requires a meaningful compari-
son of the alternative courses of action available to the BLM.
To satisfy NEPA, the BLM must provide a meaningful analy-
sis of the likely environmental consequences of the proposed
exchange by comparing the likely environmental conse-
quences of mining on the selected lands under a regime of
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13291
approved MPOs with the likely environmental consequences
of mining on the lands without the constraints imposed by the
MPO process. The BLM has not done this. Indeed, it has not
even attempted to do this. Rather, in describing the no action
alternative in the FEIS, and in assuming that mining on the
selected lands will take place in the same manner whether or
not the exchange takes place, the BLM has improperly
assumed, without analysis, that the MPO process would have
no effect whatsoever on the manner and intensity of mining
on the selected lands. In so doing, it has impermissibly “as-
sumed the existence of the very plan being proposed.”
Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024,
1026 (9th Cir. 2008).
[6] The BLM’s assumption that mining would take place in
the same manner whether or not the exchange occurs is not
supported by substantial evidence in the record. Indeed, it
flies in the face of the evidence in the record. We therefore
conclude that the BLM violated NEPA by failing to take a
“hard look” at the environmental consequences of the land
exchange.
B. FLPMA
In FLPMA, Congress declared that it is the policy of the
United States to manage the public lands “in a manner that
will protect the quality of scientific, scenic, historical, ecolog-
ical, environmental, air and atmospheric, water resource, and
archeological values.” 43 U.S.C. § 1701(a)(8). Congress also
declared it a national policy to manage the public lands “in a
manner which recognizes the Nation’s need for domestic
sources of minerals, food, timber, and fiber from the public
lands.” Id. § 1701(a)(12). The BLM and the Secretary of the
Interior are responsible for administering FLPMA and satisfy-
ing this multiple use mandate.
[7] FLPMA forbids land exchanges unless the “public
interest will be well served by making that exchange.” Id.
13292 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
§ 1716(a). FLPMA directs the Secretary of the Interior, in
considering the public interest, to “give full consideration to
better Federal land management and the needs of State and
local people, including needs for lands for the economy, com-
munity expansion, recreation areas, food, fiber, minerals, and
fish and wildlife.” Id. The Secretary must also “find[ ] that the
values and the objectives which Federal lands or interests to
be conveyed may serve if retained in Federal ownership are
not more than the values of the non-Federal lands or interests
and the public objectives they could serve if acquired.” Id.
In approving the land exchange, the ROD emphasized what
the BLM saw as the advantages of acquiring the offered land.
Those advantages include: (1) facilitating better federal land
management by acquiring private lands within special areas of
designation that exhibit a “checker board” land ownership
pattern; (2) improving wildlife and Area of Critical Environ-
mental Concern habitats by adding parcels to federal protec-
tion and management; (3) supporting resource objectives for
improving riparian zones by acquiring parcels along the Big
Sandy and Gila Rivers; (4) continuing to support mining
activities by providing lands that will enable Asarco to plan
expansions, comply with environmental permits, buffer opera-
tions from surrounding lands, and continue operating on par-
cels with approved mine plans of operations; and (5)
improving management of mineral rights.
[8] The ROD listed no disadvantages of conveying the
selected lands into Asarco’s private ownership. The ROD
stated, “An additional rationale for approving the land
exchange is that the BLM considers the continuation of min-
ing as the foreseeable use of most of the selected federal lands
whether the exchange occurs or not.” In other words, the
ROD, like the FEIS, assumed that mining would occur on the
selected lands in the same manner whether or not the
exchange took place. For the reasons discussed above, this
assumption is unreasonable. The manner in which Asarco
engages in mining on the selected lands may differ substan-
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13293
tially depending on whether the land exchange occurs, and the
environmental consequences will differ accordingly.
[9] Because the ROD unreasonably assumed that mining
would occur in the same manner, its analysis of the public
interest under FLPMA is fatally flawed. Without an accurate
picture of the environmental consequences of the land
exchange, the BLM cannot determine if the “public interest
will be well served by making the exchange,” and the Secre-
tary cannot determine if the “values and the objectives” which
the selected lands “may serve if retained in Federal ownership
are not more than the values” of the offered lands. We there-
fore hold that the conclusion in the ROD that the proposed
land exchange is in the “public interest” within the meaning
of FLPMA was arbitrary and capricious.
C. Resource Management Plans
In addition to approving the land exchange, the ROD
approved changes to two Resource Management Plans
(“RMPs”). First, it amended the Phoenix RMP by changing
the designation of 9,906 acres of selected lands in the White
Canyon Resource Conservation Area from “retention” to “dis-
posal.” Second, it amended the Safford District RMP by
changing the designation of 433 acres of selected lands in the
Long-Term Management Area from “retention” to “disposal.”
These changes were necessary in order to allow the convey-
ance of most of the selected lands into private hands.
Amending a resource management plan ordinarily consti-
tutes “major federal action” requiring NEPA analysis. See
Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549,
560-62 (9th Cir. 2006). The BLM accordingly treated the plan
amendments as major federal actions and analyzed them in
the FEIS. As part of the no action alternative, the FEIS
assumed that neither the land exchange nor the proposed
amendments to the RMPs would take place.
13294 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
[10] For the same reasons that the analysis in the FEIS of
the land exchange is inadequate under NEPA, so too is the
analysis of the proposed RMP amendments. By assuming that
mining would occur in the same manner on the selected lands
regardless of whether the exchange occurred, the BLM
assumed either that the RMPs would be amended even if the
exchange did not occur, or that even if the RMPs were not
amended the existing RMPs would not affect Asarco’s mining
plans. There is nothing in the record supporting the first
assumption that the RMPs would be amended absent the
exchange, especially given that the BLM acknowledges that
the amendments were prerequisites to the land exchange. And
the second assumption — that the unamended RMPs would
have no effect on mining — suffers from the same flaws dis-
cussed above. Just as the BLM must consider the constraints
imposed by the MPO requirement for the no action alternative
to the land exchange, so too must it consider the constraints
the RMPs would impose if the amendments did not occur. We
note that 94% of the selected lands are currently subject to
RMPs.
The Appellants did not directly challenge the RMP amend-
ments in their appeal to us. However, we note the incongruity
of holding that the analysis in the FEIS of the no action alter-
native violates NEPA with respect to the land exchange but
not with respect to the RMP amendments if the same errone-
ous assumption infects them both. We leave it to the district
court to address this issue, as appropriate, on remand.
D. Mining Law of 1872
We do not reach the question whether the Mining Law of
1872 would be violated if the land exchange were to be effec-
tuated on the current record. That is, we do not reach the
question whether it would violate the Mining Law to effectu-
ate a substantial land exchange that would permit a mining
company entirely to avoid the restrictions that would result
from the MPOs that would be required if the land were to
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13295
remain in the public domain. That question may or may not
be presented at a later time, if and when the BLM has com-
plied with NEPA and FLPMA.
Conclusion
We conclude that substantial evidence in the record does
not support the BLM’s assumption that mining would occur
in the same manner regardless of the land exchange. We
therefore hold that in failing to provide a comparative analysis
of the likely environmental consequences of the proposed
land exchange, on the one hand, and the no action alternative,
on the other, the BLM failed to take a “hard look” at the envi-
ronmental consequences of the exchange in violation of
NEPA. We hold further that the conclusion in the ROD that
the proposed land exchange is in the “public interest” within
the meaning of FLPMA was arbitrary and capricious because
it was based on the BLM’s erroneous assumption. We do not
reach the question whether the Mining Law of 1872 would be
violated if the land exchange were to be effectuated on the
current record.
We therefore REVERSE the decision of the district court
approving the action of the BLM.
TALLMAN, Circuit Judge, dissenting:
It has been said that the life of a canary in a coal mine can
be described in three words: short but meaningful. So too
apparently was the life of our decision in Lands Council v.
McNair, 537 F.3d 981 (9th Cir. 2008) (en banc).
With respect to my distinguished colleagues, the holding
today undermines a congressionally authorized land exchange
that, until now, has been approved at every stage of its 15-
year history. The court’s opinion, in my view, is based on a
13296 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
fundamentally flawed reading of selective portions of a com-
prehensive record. It then culminates in a novel and unwork-
able legal standard that not only effectively precludes
beneficial land exchanges between the federal government
and private or public landowners but also impairs the BLM’s
ability to effectively manage the public lands in a manner that
furthers the public interest. Finally, it gives no credence to the
ability of the State of Arizona to manage lands under its regu-
latory jurisdiction nor consideration to the substantial federal
and state environmental and land use laws that will be none-
theless applicable whether or not the land exchange is
approved.
In Lands Council, our en banc court confirmed the proper
level of deference owed to agency determinations. Neverthe-
less, my colleagues disregard that precedent and once again
endeavor to impermissibly expand the scope of judicial over-
sight and scrutiny of agency action. Today’s opinion is irrec-
oncilable with Lands Council, which sought to rein in this
type of judicial second-guessing in highly specialized areas.
I
This environmental challenge relates to the approval of a
land exchange involving federal and non-federal parcels in
southern Arizona (the “Land Exchange”) between the Bureau
of Land Management (“BLM”), an agency within the Depart-
ment of the Interior, and Asarco LLC (“Asarco”), a private
mining company that already possesses significant mining
rights on the public land at issue. The Mining Law of 1872
(the “Mining Law”), 30 U.S.C. § 21 et seq., establishes Asar-
co’s existing mining rights to the selected lands.1 The Federal
1
As in the majority opinion, “selected lands” refers to the 10,976 acres
of public land at issue, and “offered lands” refers to the 7,300 acres of pri-
vate land currently owned by Asarco subject to the Land Exchange. The
offered lands are comprised of 18 parcels located in Pinal and Mohave
Counties and include: (1) the Gila River Parcel at Cochran, (2) the Sacra-
mento Valley Parcel, (3) the Knisely Ranch parcel group, (4) the Tomlin
parcel group, and (5) the McCracken Mountains Parcel group.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13297
Land Policy and Management Act (“FLPMA”), 43 U.S.C.
§ 1701 et seq., governs the management of federal lands and
sets the policy authorizing the agency to enter into land
exchanges with public or private landowners. The National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., is a procedural mechanism for assessing the environmen-
tal impact, which is a consideration weighing into the BLM’s
determination under FLPMA.
By beginning its analysis and focusing almost exclusively
on NEPA, then working backwards to only tangentially dis-
cuss FLPMA and the Mining Law, the court’s opinion inverts
the legal analysis, reaches the wrong result, and, in doing so,
creates bad law. With a single exception, the majority does
not contest the thoroughness of the Environmental Impact
Study (“EIS” or “FEIS”) prepared in accordance with NEPA
or the sound reasoning of the BLM’s Record of Decision
(“ROD”) approving the Land Exchange. In my colleagues’
minds, however, that single exception forms the linchpin of
the NEPA and FLPMA analyses and is alone sufficient to
undermine a complicated agency action and to grant Appel-
lants Center for Biological Diversity, Western Land Exchange
Project, and Sierra Club (collectively, “CBD”) the relief they
request.
The court’s opinion makes a series of fundamental mis-
steps. First, the opinion adopts a misguided view of the record
—one pressed by CBD’s briefing—by concluding that, for the
purposes of considering the environmental impacts of the
Land Exchange, the BLM blindly assumed that the type,
scope, and intensity of Asarco’s mining and mining-related
activities on the selected lands would be exactly the same
whether or not the Land Exchange occurred. Maj. Op. at
13279-80. The majority then concludes—an apparent finding
of fact for the first time on appeal—that “both Asarco and the
BLM have a detailed knowledge of what Asarco intends to do
if the land exchange is approved” and are apparently with-
holding this information from the public. Id. at 13290.
13298 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Building upon the shaky foundation of these two highly
questionable appellate findings, the majority, without identi-
fying supporting authority, interprets NEPA beyond its proper
bounds to erect a procedural hurdle henceforth applicable to
the land exchange approval process: Whenever a landowner
proposes an exchange for public land on which it already
holds mining rights, NEPA requires that the landowner effec-
tively exercise those mining rights by engaging in the Mining
Plan of Operations (“MPO”)2 submission and approval pro-
cess. Id. at 13290-91. That is, notwithstanding the standards
set by Congress and our recent decision in Lands Council, my
colleagues judicially legislate, ostensibly through NEPA, an
additional procedural requirement that necessarily imposes
considerable substantive burdens on the parties. Specifically,
the court would have the parties develop and process detailed
plans of operation as a precondition to effectuating a land
exchange, even where, as is the case here, a mining company
may not know precisely what it will ultimately do on the land
it receives.
Applying this novel, judicially created NEPA requirement
to its interpretation of the record, the majority, with a few
strokes of the pen, invalidates a Land Exchange that the BLM
determined was in the public’s best interest following careful
and comprehensive evaluation. My colleagues reject without
comment the sound reasoning of the BLM Arizona State
Director, the Interior Board of Land Appeals (“IBLA”), and
the district court—all of whom considered and rejected the
same legal challenges presented by CBD—and conclude that
the agency failed to take a “hard look” at the potential envi-
ronmental consequences of the proposed action in violation of
2
Before engaging in mining operations beyond casual use on public
land, a claim holder must submit an MPO for consideration and approval
by the BLM. 43 C.F.R. § 3809.11. An MPO sets forth detailed explana-
tions of the scope and impact of mining activities that will exceed a certain
size. See Maj. Op. at 13286-87 (quoting 43 C.F.R. § 3809.401 exten-
sively).
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13299
NEPA. For the same reason, they also summarily reject as
arbitrary and capricious the BLM’s “public interest” determi-
nation pursuant to FLPMA—a decision based almost exclu-
sively on other considerations.
For the reasons stated below, I strongly disagree with this
outcome as well as my colleagues’ methodology in reaching
that result. I would reject the arguments presented by CBD,
and affirm the district court’s order of summary judgment in
favor of Asarco and the BLM because the BLM reasonably
concluded that the Land Exchange is in the best interests of
the public.
II
FLPMA sets forth the principles governing the manage-
ment of lands owned by the United States and administered
by the Secretary of the Interior through the BLM. The con-
gressionally delegated authority is broad. Section 206 of
FLPMA authorizes the BLM to exchange certain public lands
for state, county, or private lands within the same state when
it determines that “the public interest will be well served by
making that exchange.” 43 U.S.C. § 1716(a). That is, “giv-
[ing] full consideration to better Federal land management
and the needs of State and local people, including needs for
lands for the economy, community expansion, recreation
areas, food, fiber, minerals, and fish and wildlife[,]” the BLM
determines whether “the values and the objectives which Fed-
eral lands or interests to be conveyed may serve if retained in
Federal ownership are not more than the values of the non-
Federal lands or interest and the public objectives they could
serve if acquired.” Id. Environmental impact is certainly a
factor, and unquestionably an important one, in the BLM’s
“public interest” determination under FLPMA. NEPA estab-
lishes the procedures by which agencies must consider the
environmental impacts of agency action, but does not dictate
substantive results. See Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350-51 (1989).
13300 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Public land exchanges frequently benefit everyone involved
in the transfer—the federal government, the exchanging pub-
lic or private property owner, and, most importantly, the pub-
lic at large. Exchanges are typically employed to eliminate
patchwork ownership of isolated parcels. Once consolidated,
such lands can be managed efficiently, effectively, and eco-
nomically for all sorts of beneficial uses—e.g., creation of
parklands, wilderness areas, hiking and biking trails, environ-
mental remediation and protection, or improved stewardship
of multiple-use lands and forests. It is undisputed that the
Land Exchange at issue would serve these very purposes,
among others.3
What is unusual about these particular types of land swaps
is the overlay of congressionally authorized mineral explora-
tion and extraction rights in federal lands to which the miner
—in this case, Asarco—has no title. Asarco’s preexisting
mining rights under the Mining Law therefore lie at the core
of this agency action.
The Mining Law of 1872 states that “all valuable mineral
deposits in lands belonging to the United States . . . shall be
free and open to exploration,” 30 U.S.C. § 22, and, stated gen-
erally, authorizes and governs prospecting and mining for
economic minerals on federal public lands. It was designed to
encourage individuals to “prospect, explore and develop the
3
Despite the majority opinion’s selective and somewhat misleading pre-
sentation of the facts, the record reveals—and CBD does not contest—that
from an environmental standpoint, the selected lands are far inferior to the
offered lands which would come under federal ownership through the
Land Exchange. As stated in the record, “The BLM prepared a careful and
reasonable analysis of the natural resources lost and gained in the pro-
posed land exchange. . . . In each instance, the natural resource inventory
detailed in the FEIS, the offered lands presented evidence of superior
resource values compared to the selected land parcels.” Moreover, the less
environmentally valuable selected lands, which are comprised of scattered
parcels that largely border the active Ray Mine Complex, are apparently
rich in copper and silver—minerals in high demand by our technology-
driven economy.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13301
mineral resources of the public domain through an assurance
of ultimate private ownership of the minerals and the lands so
developed.” United States v. Curtis-Nev. Mines, Inc., 611
F.2d 1277, 1281 (9th Cir. 1980); accord United States v.
Shumway, 199 F.3d 1093, 1098-99 (9th Cir. 1999) (“The min-
ers’ custom, that the finder of valuable minerals on govern-
ment land is entitled to exclusive possession of the land for
purposes of mining and to all the minerals he extracts, has
been a powerful engine driving exploration and extraction of
valuable minerals . . . .”).4
Under the Mining Law, all citizens have the right to enter
public lands open to mineral entry and locate mining claims
or mill site claims. Indep. Min. Co. v. Babbitt, 105 F.3d 502,
506 (9th Cir. 1997). Once a claim is staked, the holder “has
the exclusive right to possession and enjoyment of all the sur-
face included within the lines of the locations, but the United
States retains title to the land. This possessory interest entitles
the claimant to ‘the right to extract all minerals from the claim
without paying royalties to the United States.’ ” Id. (quoting
Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993)) (inter-
nal citation omitted). “If a discovery of a ‘valuable mineral
deposit’ is made, the claim can be held indefinitely so long as
the annual assessment work is performed, the necessary fil-
ings are made, fees are paid, and a valuable mineral deposit
continues to exist.” Id. It is well-established that “[t]he owner
of a mining claim owns property, and is not a mere social
guest of the Department of the Interior to be shooed out the
door when the Department chooses.” Shumway, 199 F.3d at
1103; accord United States v. Locke, 471 U.S. 84, 86 (1985)
(“[A]n unpatented mining claim remains a fully recognized
possessory interest.”). In other words, a mining claim, without
more, involves significant mining rights.
4
The Mining Law codified the informal system of acquiring mining
claims on public land by prospectors in California and Nevada from the
late 1840s through the 1860s. See Shumway, 199 F.3d at 1097-99.
13302 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
The holder of a mining claim may apply for a patent to the
land under 30 U.S.C. § 29, which, if issued, conveys fee title
to the public land in favor of the claim holder. See Curtis-Nev.
Mines, 611 F.2d at 1281. This process is called “patenting” or
proving the claim and requires a determination whether the
claim is valid—i.e., whether “there was a legitimate discovery
of a valuable mineral deposit on the land which a prudent man
would be justified in developing.” Id. Patenting, however, is
not required to develop a claim or to engage in mining or
related activities on public land. A claim holder can conduct
“prospecting, mining or processing operations and uses rea-
sonably incident thereto” without ever obtaining a patent. 30
U.S.C. § 612(a); Curtis-Nev. Mines, 611 F.2d at 1281-82
(“[C]laimants could continue mining activities on the claims,
without ever obtaining a patent. As a practical matter, mining
claimants could remain in exclusive possession of the claim
without ever proving a valid discovery or actually conducting
mining operations.”).
Mining activities are always subject to governmental over-
sight and regulation and must comply with a panoply of fed-
eral, state, and local laws, including the Clean Air Act, the
Clean Water Act, and the Solid Waste Disposal Act, among
a myriad of other regulatory requirements. See 43 C.F.R.
§ 3809.420. Before engaging in mining operations beyond
casual use on public land, a claim holder must submit a pro-
posed plan of operation, an MPO, for consideration and
approval by the BLM, see 43 C.F.R. § 3809.11—a point upon
which the majority improperly fixates. Unless “unnecessary
or undue degradation of public lands” is found to result from
the analysis, the BLM will approve a properly filed MPO. 43
C.F.R. § 3809.411(d).
With the exception of a single 480-acre parcel, the totality
of the 10,976 acres that comprise the selected lands is com-
pletely encumbered by at least one of 751 mining or mill site
claims. Asarco holds 747 of these claims. Accordingly, Asar-
co’s ability to develop its claims on the selected lands and to
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13303
engage in mining activities and those incident to mining is
firmly established under the Mining Law, predate the Land
Exchange proposal, and will exist whether or not the Land
Exchange goes forward. With this practicality in mind, we
review the BLM’s decision to approve the Land Exchange.
III
The Administrative Procedure Act provides the authority
for our review, and we may only set aside agency actions that
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” 5 U.S.C. § 706(2)(A); see N.
Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.
2006). We have held that an agency’s decision may only be
called arbitrary and capricious if:
the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an expla-
nation for its decision that runs counter to the evi-
dence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1448 (9th Cir. 1996) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). “This inquiry must be ‘searching and careful,’ but
‘the ultimate standard of review is a narrow one,’ ” id. at
1448, and “we do not substitute our judgment for that of the
agency.” Lands Council, 537 F.3d at 987 (brackets omitted).
Having carefully reviewed and evaluated the record, I
staunchly disagree with the majority’s conclusion that, after
15 years of consideration and on a dense record that includes
thousands of pages of study and thorough analysis, the BLM
shirked its duty to take the requisite “hard look” under NEPA
13304 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
or otherwise acted arbitrarily or capriciously. The law simply
does not support the majority’s holding.
A
In considering the proposal, the BLM prepared a draft EIS
pursuant to NEPA and, after providing for public review and
comment, issued a final EIS in 1999. The BLM had initially
considered a variety of alternatives, including the Land
Exchange as proposed, various partial exchanges, a No Min-
ing Alternative, and a No Action Alternative (i.e., where the
Land Exchange was not approved and the selected and
offered lands remained under present ownership). For various
reasons, the original list of eleven alternatives was narrowed
to four that warranted more in depth study: the Proposed
Action, the No Action Alternative, the Buckeye Alternative,
and the Copper Butte Alternative.
Among the initially proposed alternatives eliminated from
more detailed consideration was the No Mining Alternative.
The BLM reasonably explained:
[I]n developing alternatives, BLM concluded that
foreseeable mining-related uses of the selected lands
are actions common to all alternatives; that is,
mining/mine-support uses would likely occur
whether any one of the land exchange alternatives
were selected or the No Action alternative was
selected. This is because a land exchange is not
required for mining-related activities to take place on
the selected lands. Asarco currently holds the vast
majority of the mining claims on the public lands
selected for the exchange, and through these mining
claims, Asarco has the right to pursue development
on the selected lands for mining and mining-related
uses.
As the EIS further explained, “[t]he foreseeable uses of the
selected lands are mining-related uses and are expected to
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13305
occur under all alternatives. Mining could occur on private
. . . lands under a land exchange, on public lands subject to
BLM’s 43 CFR 3809 regulations, or through patenting under
the Mining Law of 1872.”
The BLM’s assumption that the foreseeable use of the
selected lands will involve mining-related activities irrespec-
tive of the Land Exchange is well supported by the record and
common sense. Not even CBD disputes this conclusion. As
noted by the BLM, Asarco already operates on approximately
272 acres of the selected lands pursuant to its mining claims,
and four other copper mines in the area were considering
expansion of their mining operations into the selected lands.
Indeed, the close proximity of the selected lands to the Ray
Mine Complex—the third most productive copper mine in the
United States, which has been in operation for 85 years—
coupled with Asarco’s existing rights under the Mining Law
and its stated intention to engage in mining activities on the
selected lands whether or not the Land Exchange is effectu-
ated makes this the only reasonable conclusion.
To be fair, my colleagues do not dispute this general con-
clusion regarding the foreseeability of mining activities or
propose a competing, alternative foreseeable use of the
selected lands. Nor could they. Rather, their complaint lies in
a misreading of the BLM’s careful analysis, which infects the
majority’s view of the EIS and the ROD. My colleagues adopt
a more drastic position, repeatedly faulting the BLM for sim-
ply presuming “that the manner and intensity of mining would
be ‘the same’ whether or not there was a land exchange.”
Maj. Op. at 13280 (emphasis added); see also id. at 13274,
13280, 13281, 13283, 13285, 13290, 13292, 13294, 13295.
This logical leap distorts the BLM’s reasoned analysis. As
Asarco correctly asserted at oral argument, the BLM did no
such thing.
In favor of its premise, the majority solely focuses on an
isolated phrase from the record, taken entirely out of context.
13306 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
In the section discussing the “Alternatives Considered,” the
EIS states: “As explained above, foreseeable uses of the
selected lands are assumed to be the same for all alternatives.”
Read in the correct context of developing and evaluating
alternatives, the statement simply reiterates the unremarkable
notion that mining activities would likely occur on the
selected lands under all possible alternatives (and that the No
Mining Alternative was neither feasible nor realistic)—a point
that no one disputes. The majority, however, quotes this state-
ment without the explanatory phrase, “As explained above,”
and uses it to portray the BLM’s environmental analysis as
unreasoned and inadequate. See id. at 13279-80.
The manner and intensity of mining and mining-related
activity pose an entirely distinct question from whether min-
ing will likely occur on the selected lands. The EIS does not
reveal an unwarranted presumption on the part of the BLM
that the actual operations would be identical whether or not
the Land Exchange is approved. Rather, given Asarco’s repre-
sentations, the BLM conducted its environmental assessment
—i.e., a comparative analysis—under the assumption that
mining-related activity on land remaining under federal own-
ership would be conducted in a manner consistent with Asar-
co’s existing mining rights under the Mining Law and a host
of otherwise applicable federal and state regulations. See
Lands Council, 537 F.3d at 1003 (“[W]e will not find a NEPA
violation based on the [agency]’s use of an assumption that
we approve.”). Because Asarco already holds mining claims
to nearly all of the selected lands, the BLM reached the logi-
cal conclusion that, to the extent foreseeable, the environmen-
tal impacts would be in many ways similar under the various
alternatives. Based on the facts of this case, there is nothing
improper or even surprising about this reasoning. Indeed, a
contrary conclusion would be absurd.
The majority, however, seems focused on the hypothetical,
noting that “the manner in which Asarco engages in mining
on the selected lands may differ substantially depending on
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13307
whether the land exchange occurs, and the environmental
consequences will differ accordingly.” Maj. Op. at 13292-93.
So too might mining activities differ if the worldwide price of
copper plummeted, or if particular parcels did not contain suf-
ficient minerals to warrant at all. In any event, this rumination
is unaccompanied by any factual basis from the record. Nor
do my colleagues disclose their belief regarding how the inev-
itable mining activities might “differ substantially.” It is of
course axiomatic that NEPA does not encompass all conceiv-
able scenarios. We were reversed by the Supreme Court in
Weinberger v. Catholic Action of Hawaii/Peace Education
Project, 454 U.S. 139 (1981),5 where we read NEPA to
require the Navy to prepare an EIS based on hypothetical
assumptions regarding the operations of a facility capable of
storing nuclear weapons. Id. at 146 (“[A]n EIS need not be
prepared simply because a project is contemplated, but only
when the project is proposed.”). My colleagues repeat this
error.
But even assuming the selected lands remained publicly
owned, given the facts of this case (namely, Asarco’s mining
rights on the selected lands), there is nothing unreasonable or
illogical about a conclusion that, while the timing might dif-
fer, the ultimate mining-related activities would be substan-
tially similar and in turn result in comparable environmental
impacts. On the contrary, in light of the variables in play, that
conclusion is quite sound. My colleagues’ position is prem-
ised on an inflated portrayal of the MPO process. Given the
substantial rights and interests provided by the Mining Law
and its goal of encouraging the location and extraction of
valuable minerals, the BLM’s review of a claim holder’s pro-
posed MPO is limited. The BLM may disapprove or withhold
approval of a properly submitted MPO concerning an area
open to mining only if a proposed operation “would result in
unnecessary or undue degradation of public lands.” 43 C.F.R.
5
The Court reversed our panel opinion in Catholic Action of
Hawaii/Peace Education Project v. Brown, 643 F.2d 569 (9th Cir. 1980).
13308 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
§ 3809.411(d)(3); see 43 U.S.C. § 1732(b). “A reasonable
interpretation of the word ‘unnecessary’ is that which is not
necessary for mining. ‘Undue’ is that which is excessive,
improper, immoderate or unwarranted.” Utah v. Andrus, 486
F. Supp. 995, 1005 & n.13 (D. Utah 1979) (noting that “[t]he
word ‘impair’ would prevent many activities that would not
be prevented by the language of ‘unnecessary or undue degra-
dation.’ ”).
The BLM is, for example, “under no legal obligation to
determine mining claim or mill site validity before approving
a proposed plan of operations to explore for or develop miner-
als on lands open to the Mining Law’s operation.” Legal
Requirements for Determining Mining Claim Validity Before
Approving a Mining Plan of Operations, Op. DOI Solicitor
General, M-37012 (Nov. 14, 2005); see W. Shoshone Def.
Project, 160 IBLA 32, 56 (2003) (“BLM generally does not
determine the validity of the affected mining claims before
approving a plan of operations.”).6 If the BLM finds no
unnecessary and undue degradation and the claim holder has
obtained all required permits, the BLM must authorize the
planned mining operations.
Indeed, it is the majority—not the BLM—that has engaged
in improper conjecture and has adopted unfounded presump-
tions. Substantial governmental regulations such as the Clean
Air Act, the Clean Water Act, and various other federal and
local safeguards remain nonetheless applicable to operations
on private land. Today’s opinion, based on a distaste for the
particular industrial goals at issue, requires that courts pre-
sume that in the absence of the MPO process mining compa-
nies will conduct their activities unsupervised by any
6
As the majority asserts, the MPO review process does trigger proce-
dures established by the BLM and will typically involve an environmental
analysis subject to NEPA. See 43 C.F.R. § 3809.411(c). Still, the limited
“unnecessary and undue degradation” standard governs the MPO approval
process, and NEPA operates within these restraints.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13309
environmental regulator in a manner that unnecessarily and
unduly degrades the environment. And, in doing so, mining
companies will somehow evade the substantial state and fed-
eral governmental regulations that remain applicable to min-
ing operations on private land in Arizona.
But it gets much worse. Here, because Asarco has neither
engineered nor submitted an MPO for the selected lands, a
foreseeable use plan was developed as the basis for analyzing
the land exchange proposal and the foreseeable environmental
consequences. As the BLM Arizona State Director noted in
the Protest Decision, rejecting CBD’s arguments:
BLM considered future mining as allowed by the
Mining Law, subject to full compliance with 43
C.F.R. Part 3809, as the foreseeable use under all
exchange alternatives and the no-action alternative.
. . . Based upon a foreseeable use plan (FEIS 2.2;
Tables 2-5, 2-6; Figures 2-7, 2-8, 2-9), BLM ana-
lyzed the direct, indirect and cumulative impacts of
future mining within the limits of the information
available. . . . BLM also identified how mining
development by Asarco requires other major envi-
ronmental permits under the jurisdiction of other
federal and state agencies (FEIS, Section 1.6.4 and
Table 1-5), whether or not the lands remain federal
or in private ownership.
While not an MPO approved in accordance with the “unnec-
essary or undue degradation” standard, the foreseeable use
plan developed for the Land Exchange proposal reasonably
approximated Asarco’s planned mining-related activities and
considered the ongoing regulation of anticipated mining activ-
ities whether or not the exchange was approved. Cf. Am. Riv-
ers v. FERC, 201 F.3d 1186, 1195 (9th Cir. 1999) (“[O]nce
we are satisfied that a proposing agency has taken a ‘hard
look’ at a decision’s environmental consequences, our review
is at an end.” (internal quotations and brackets omitted)). The
13310 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
BLM plainly stated: “Mining plans of operations are not
required for a land exchange proposal.”
This, however, is not enough for the majority. My col-
leagues fault the BLM for failing to comply with obligations
of their own creation. After all, they do not, nor could they,
challenge the BLM’s environmental impact analysis in light
of the information at hand. Recognizing that detailed findings
cannot be drawn from nonexistent information about future
events not yet planned, my colleagues impose their view of
what steps the BLM should take under NEPA whenever pre-
existing mining rights are involved, even where actual mining
is speculative or the contours of planned mining activities are
undefined. At bottom, the opinion proclaims:
To satisfy NEPA, the BLM must provide a meaning-
ful analysis of the likely environmental conse-
quences . . . of mining on the selected lands under a
regime of approved MPOs . . . .
Maj. Op. at 13290-91. In other words, my colleagues hold that
in order to fully comprehend “the different environmental
consequences” from the Land Exchange, NEPA requires an
analysis that mimics the MPO submission and approval pro-
cess. Id. at 13290-91. Does it? The majority provides no
authority for such a landmark holding, leaving the legal basis
for this novel NEPA requirement steeped in mystery. The
majority then unsurprisingly concludes, “The BLM has not
done this. Indeed, it has not even attempted to do this.” Id. at
13291. The reason why the parties might not have engaged in
the majority’s novel quasi-MPO process as part of the Land
Exchange is readily apparent.7
7
The majority is wrong on multiple fronts. As discussed above, the
BLM quite clearly did conduct a comparative analysis of the environmen-
tal impacts under the various alternatives, including the No Action Alter-
native. The majority is simply dissatisfied with the results and therefore
seeks to impose the formal MPO requirement into the land exchange con-
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13311
This attempt to regulate agency action by judicial fiat quite
clearly exceeds our authority. As we have held time and
again, “[w]e are not free to ‘impose upon the agency [our]
own notion of which procedures are ‘best’ or most likely to
further some vague, undefined public good.’ ” Churchill
County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001) (quot-
ing Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 549 (1978)). “Nor may we
impose ‘procedural requirements not explicitly enumerated in
the pertinent statutes.’ ” Lands Council, 537 F.3d at 993
(brackets omitted). But this is precisely what the majority
boldly does here. According to our opinion today, the BLM
was obliged to demand that Asarco fully explore the selected
lands, develop a detailed mining plan, and submit a proposed
plan of mining operations for approval—i.e., one mimicking
an MPO. The BLM was then required, under NEPA, to con-
sider that quasi-MPO as if it was indeed a filed MPO under
the Mining Law. Stated in real terms, the approval process of
a proposed land exchange under FLPMA henceforth incorpo-
rates, by way of NEPA, the Mining Law’s governance of min-
ing activities on public lands.
I find no legal basis for our court’s quasi-MPO analysis
requirement—“a creature of judicial cloth, not legislative
sideration process with the false presumption that it would lead to substan-
tially different findings.
What is more, the BLM did consider an alternative similar to the novel
quasi-MPO requirement announced today. Among the eleven alternatives
initially considered in the EIS, the BLM evaluated the Mining Plan of
Operation Alternative. “Under this alternative, Asarco would submit an
MPO, as described in federal regulations governing mining operations on
federal lands [pursuant to 43 C.F.R. § 3809].” The BLM, however,
rejected this alternative from further consideration because Asarco had not
yet prepared a detailed proposed plan of operations and because, in the
BLM’s view, an MPO was neither necessary to reach an informed conclu-
sion nor required by the law it administers. Once again, this part of the
record draws no attention from my colleagues, and the agency’s interpre-
tation of its regulations is given no Chevron deference. See Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
13312 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
cloth, . . . not mandated by any of the statutory or regulatory
provisions upon which [the majority] relied.” Weinberger,
454 U.S. at 141. “Lands Council teaches that our proper role
is simply to ensure that the agency, in its expertise, made no
clear error of judgment rendering its action arbitrary and
capricious.” Nw. Coalition for Alternatives of Pesticides v.
U.S. Envtl. Prot. Agency, 544 F.3d 1043, 1060 (9th Cir. 2008)
(Ikuta, J., dissenting). Just as “we defer to the Forest Service
as to what evidence is, or is not, necessary to support wildlife
viability analyses,” Lands Council, 537 F.3d at 992, we must
defer to the BLM as to what evidence is, or is not, necessary
to support a foreseeable environmental impact assessment of
anticipated mining activities in order to make an informed
“public interest” determination. See also Coeur Alaska, Inc. v.
Se. Alaska Conservation Council, 129 S. Ct. 2458, 2473
(2009) (noting deference given to agencies’ interpretation of
own regulatory scheme). My colleagues clearly disagree.
Who needs Chevron deference? Why adhere to Lands Coun-
cil? Judges will now administer the duties Congress has
entrusted to the administrative agency.
In sum, the majority’s creation of the novel quasi-MPO
requirement grossly oversteps our role in reviewing agency
action and is irreconcilable with our precedent. Indeed, it sig-
nals a return to the type of overly zealous scrutiny applied in
Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005),
which we expressly overruled in Lands Council. See 537 F.3d
at 990. The BLM “is at liberty, of course, to [conduct a quasi-
MPO analysis] if it deems it appropriate or necessary, but it
is not required to do so.” Id. at 991-92. It is certainly not for
us as Article III judges to feign superior expertise in such spe-
cialized areas and to micro-manage agencies in executing
their congressionally delegated administrative functions.
NEPA is a procedural mechanism. Id. at 992 (noting that a
substantive requirement “cannot be derived from the proce-
dural parameters of NEPA” (quoting Ecology Ctr., 430 F.3d
at 1073 (McKeown, J., dissenting))). It was satisfied here. The
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13313
BLM did what was required of it under the circumstances of
this case—i.e., take a “hard look” at the reasonably foresee-
able environmental consequences of the exchange and the
various alternatives. We should have applied an “approach
[that] respects our law that requires us to defer to an agency’s
determination in an area involving a ‘high level of technical
expertise,’ ” id. at 993, and rejected CBD’s challenge under
NEPA.
B
The majority opinion’s curt analysis regarding FLPMA is
perhaps even more problematic and falters for the reasons
stated above. Rather than engaging the material legal question
whether or not the Land Exchange was in the public interest,
see 43 U.S.C. § 1716(a), my colleagues repeat their flawed
NEPA analysis, stating: “The manner in which Asarco
engages in mining on the selected lands may differ substan-
tially depending on whether the land exchange occurs, and the
environmental consequences will differ accordingly.” Maj.
Op. at 13292-93. Despite the BLM’s well-articulated bases
for its approval of the Land Exchange, the majority concludes
that this alone renders the reasoned “public interest” determi-
nation arbitrary and capricious.
In the ROD, the BLM gave five main reasons why approval
of the Land Exchange was in the public interest and thus sat-
isfied § 206 of FLPMA:
1) Facilitating better land management by acquir-
ing private lands within special areas of designation
(the McCracken Desert Area of Critical Environ-
mental Concern (ACEC) which exhibit a “checker
board” land ownership pattern and removing inhold-
ings from the Mt. Tipton Wilderness). This will
remove resource and use conflicts, facilitate a more
efficient management, and enable better implementa-
13314 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
tion of resource management plan (RMP) decisions
for the Kingman RMP.
2) Improving wildlife and ACEC habitats by
adding the Gila River at Cochran parcel and
McCracken ACEC parcels to federal protection and
management. The Gila River parcel (320 acres) sup-
ports threatened and endangered species by provid-
ing critical habitat for the cactus ferruginous pygmy-
owl and occupied habitat for the southwestern wil-
low flycatcher. The McCracken ACEC provides
6,500 acres of Category I desert tortoise habitat. The
Sacramento Valley and Tomlin parcels also support
Category I and II desert tortoise habitat.
3) Supporting resource objectives for improving
riparian zones by acquiring parcels along the Big
Sandy and Gila Rivers. Tomlin Parcel #4 and the
Gila River at Cochran Parcel contain riparian values
and enable more efficient and effective management
of riparian zones along those rivers.
4) Continuing to support mining activities as
approved in the Phoenix RMP. The exchange pro-
vides lands which will enable Asarco to plan expan-
sions, comply with environmental permits, buffer
operations from surrounding lands, and continue
operating on parcels with approved mine plans of
operations (MPOs) authorized under 43 CFR 3809.
5) Improving management of mineral rights by
removing split estate lands from BLM administration
(2,808 acres) of federal estate below state or private
surface and from parcels with existing operations
under approved MPOs. This does not alter federal
permits from other agencies administering signifi-
cant environmental programs such as the Clean
Water Act and Clean Air Act.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13315
“As an additional rationale for approving the land exchange,”
the ROD also noted that “the continuation of mining [was] the
foreseeable use of most of the selected lands whether the
exchange occurs or not.” In reaching this conclusion, the
BLM referred to the Mining Law and Asarco’s rights arising
from its 747 mining claims, Asarco’s pending patent applica-
tion for portions of the selected lands (which, if approved,
would convey fee title to Asarco), mineral potential reports
indicating the presence of ore bodies that may have economic
potential for future mining, and the current use of parcels in
the neighboring Ray Mine Complex, which was 100%
mining-related.8
Moreover, the ROD recognized that, under the No Action
Alternative, the BLM must anticipate substantial future man-
agement actions, including processing multiple MPOs and
patent applications, while the offered lands would remain in
Asarco’s ownership and most likely be divided into smaller
parcels and sold for profit. In other words, significant portions
of the selected lands would inevitably be burdened by mining-
related activities, either pursuant to Asarco’s mining claims or
after fee title was conveyed to Asarco through the patenting
process. Simultaneously, the offered lands, which would pro-
vide significant public benefit under federal ownership (e.g.,
as described in paragraphs (1) through (3), quoted above),
would remain in private hands and likely be subject to subdi-
vision and private development, including possible mining
8
Despite the BLM’s meaningful discussion on the topic, the majority
curiously proclaims that the ROD did not address the objection to the
BLM’s assumption that the foreseeable use of the selected lands reflects
mining whether or not the exchange occurs. See Maj. Op. at 13281-82
(accusing the BLM of “not respond[ing] to the second sentence” of the
objection of the EPA, the Bureau of Indian Affairs, and the Sierra Club).
Furthermore, in direct response to the objection, the ROD not only cited
the “FEIS General Response Section 7.4.5 and 7.4.6,” as the opinion
acknowledges, but also referenced in an immediately following sentence
the “FEIS sections that deal with the foreseeable uses in the absence of
mining plans of operations,” which are discussed above.
13316 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
activities. How could the public interest possibly be served by
this outcome? This reality weighed heavily in the BLM’s
determination.
The majority’s analysis literally ignores the reasons pro-
vided in the ROD and the sound logic of the BLM in deter-
mining what course best serves the public interest. Indeed, it
further ignores the Protest Decision of the BLM Arizona State
Director, upholding the BLM’s public interest determination,
and the IBLA’s expertise and experience in denying CBD’s
administrative appeal. See Ctr. for Biological Diversity, 162
IBLA 268 (2004).9 Finally, it ignores the district court’s sum-
mary judgment in favor of Asarco and the BLM, rejecting as
a matter of law CBD’s continued contest of the Land
Exchange. Instead, the opinion focuses solely on the “addi-
tional rationale” that the BLM mentioned in further support of
its determination. Based entirely on their suspicion that the
mining activities “may” differ depending on whether the Land
Exchange is consummated, my colleagues hold that the exten-
9
The majority does selectively quote language from the concurring
opinion, which it attempts to use to support its wayward NEPA analysis.
See Maj. Op. at 13282-83, 13289-90 (quoting Ctr. for Biological Diver-
sity, 162 IBLA at 291 (Hemmer, Admin. J., concurring)). It, however,
omits the paragraph immediately following the quoted text, which fully
conveys Administrative Judge Hemmer’s opinion in concurrence:
Nonetheless, I agree with the lead opinion that appellants’ argu-
ments do not sufficiently take into account the record and the
mining uses of the land evident therein, nor the above-described
facts, in suggesting that mining would be entirely different if the
selected lands were not transferred outside of Federal ownership
and that BLM thereby did not adequately identify the effects of
the proposed action.
162 IBLA at 291-92 (Hemmer, Admin. J., concurring). As a general mat-
ter, the majority opinion skews the thrust of the concurrence. Compare id.
at 290 (“I concur in the result and ultimately agree with my colleague’s
conclusions.” (emphasis added)), with Maj. Op. at 13282
(“[Administrative Judge Hemmer] wrote separately, concurring “only in
the result.”).
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13317
sive analysis approving the Land Exchange was, in its
entirety, arbitrary and capricious.
I cannot agree with this result, which seems uninterested in
the BLM’s actual “public interest” determination. Nor can I
condone an approach that gives short shrift to the deference
judges are supposed to apply to agency action review under
our en banc decision in Lands Council. As previously dis-
cussed, there was nothing improper about the BLM’s evalua-
tion of the foreseeable use of the selected lands. Even if there
were gaps or imperfections in the BLM’s analysis, the agency
action here still does not rise to the level of an arbitrary or
capricious determination.
IV
In reaching its result, the majority focuses almost exclu-
sively on the regulatory mechanism behind MPOs, while at
the same time diminishing or ignoring altogether Asarco’s
preexisting mining rights under the Mining Law, the standard
for and purpose of FLPMA land exchanges, and the state and
federal environmental regulations that remain applicable to
the selected lands whether under private or public ownership.
The thrust of the opinion relates to the difference in govern-
mental oversight of mining operations conducted on federal
versus non-federal lands—i.e., whether prior agency approval
of mining plans is required. This demonstrates a clear distrust
of Asarco and the BLM—a distrust I find unsupported in the
extensive record before us.10
10
The majority even insinuates that the Mining Law might require MPO
submission and approval as a condition of entering into a land exchange.
See Maj. Op. at § III.B. It is quite certain that the Mining Law places no
requirements on the execution of land exchanges authorized by FLPMA.
The Mining Law is relevant here only to the extent Asarco’s preexisting
mining rights on the selected lands factored into the agency’s analysis
under FLPMA and NEPA.
13318 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
The majority is plainly concerned about the unavoidable
uncertainty regarding the ultimate environmental impacts that
will occur, which admittedly could be substantial and perhaps
different than estimated in the EIS. Apprehension over a spec-
ulative outcome should neither drive a particular result nor
prompt the creation of bad law.11 Unfortunately, I fear that my
colleagues have succumbed to this temptation and, in doing
so, have sacrificed the integrity of our precedent and the best
interests of the public in order to achieve a particular outcome
in the instant case.
The majority’s holding is shortsighted and unreasonably
impairs the BLM’s ability to effectively manage the public
lands in a manner that we all desire. In practice, the newly
minted quasi-MPO requirement will unquestionably stifle, if
not altogether stymie, land exchanges, especially whenever
mining companies are involved or mining-related activities
are contemplated. Indeed, this judicially created hurdle would
be, in application, a brick wall.
Furthermore, by grafting the time-consuming and expen-
sive MPO process onto FLPMA’s “public interest” determi-
nation (ostensibly though NEPA), our opinion today
eliminates one key incentive that encourages private landown-
ers, such as Asarco and other mining claim holders, to offer
their valuable private property in exchange for federal land.
Like it or not, most businesses are driven largely by economic
considerations. At some point claim holders will elect to pro-
ceed through the MPO or patenting process in order to engage
in mining activities and to simultaneously develop or market
their valuable private lands for additional commercial gain.
Then what? In the instant case, for example, the public is
11
I also note that a mining company could theoretically deviate from an
approved MPO or quasi-MPO after a land exchange is effectuated and
once the public land is conveyed to private ownership. Therefore, I sus-
pect that the majority’s new NEPA hurdle does not resolve its concerns
and, practically speaking, serves no legitimate purpose.
CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13319
deprived of the offered lands, which are undisputedly superior
in almost all respects (except for mineral deposits) to the
selected lands—a collection of scattered parcels near an
active, large-scale mining operation, which are, and will con-
tinue to be, heavily burdened by mining claims. In addition to
being legally untenable, the majority’s approach announced
today is utterly misguided and contrary to the best interests
and welfare of the public at large.
V
The BLM’s conclusion that the foreseeable use of the
selected lands includes mining activities and related uses is
certainly supported by substantial evidence in the record. See
Dickinson v. Zurko, 527 U.S. 150, 163-64 (1999) (noting that
the standard is even more deferential than the clearly errone-
ous standard of review). Neither NEPA nor FLPMA requires
that Asarco prepare and submit a quasi-MPO or that the BLM
conduct a quasi-MPO approval process in order to determine
whether a proposed land exchange is in the public interest.
I would faithfully apply our precedent and affirm the dis-
trict court’s summary judgment in favor of the BLM and
Asarco. Today’s opinion embodies the type of judicial med-
dling in agency action that we intended to put to rest in Lands
Council. Its implications are far-reaching and severe. In order
to achieve a particular result, my colleagues set the stage for
a catastrophic collapse of the mine shaft timbers of deferential
administrative law. For these reasons, I dissent. Has anyone
seen the canary?