Western Watersheds Project v. Ester McCullough ( 2023 )

FILED
NOT FOR PUBLICATION
JUL 17 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT; No. 23-15259
WILDLANDS DEFENSE; GREAT
BASIN RESOURCE WATCH; BASIN D.C. Nos.
AND RANGE WATCH, 3:21-cv-00080-MMD-CLB
3:21-cv-00103-MMD-CLB
Plaintiffs-Appellants,
and MEMORANDUM*
BARTELL RANCH LLC; EDWARD
BARTELL,
Plaintiffs,
RENO-SPARKS INDIAN COLONY;
BURNS PAIUTE TRIBE; ATSA
KOODAKUH WYH NUWU PEOPLE OF
RED MOUNTAIN,
Intervenor-Plaintiffs,
v.
ESTER M. MCCULLOUGH, District
Manager; BUREAU OF LAND
MANAGEMENT; U.S. DEPARTMENT
OF THE INTERIOR,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants-Appellees,
LITHIUM NEVADA CORPORATION,
Intervenor-Defendant-
Appellee.
WESTERN WATERSHEDS PROJECT; No. 23-15261
WILDLANDS DEFENSE; GREAT
BASIN RESOURCE WATCH; BASIN D.C. Nos.
AND RANGE WATCH; BARTELL 3:21-cv-00080-MMD-CLB
RANCH LLC; EDWARD BARTELL, 3:21-cv-00103-MMD-CLB
Plaintiffs,
RENO-SPARKS INDIAN COLONY;
ATSA KOODAKUH WYH NUWU
PEOPLE OF RED MOUNTAIN,
Intervenor-Plaintiffs,
and
BURNS PAIUTE TRIBE,
Intervenor-Plaintiff-
Appellant,
v.
ESTER M. MCCULLOUGH, District
Manager; BUREAU OF LAND
MANAGEMENT; U.S. DEPARTMENT
OF THE INTERIOR,
2
Defendants-Appellees,
LITHIUM NEVADA CORPORATION,
Intervenor-Defendant-
Appellee.
BARTELL RANCH LLC; EDWARD No. 23-15262
BARTELL,
D.C. Nos.
Plaintiffs-Appellants, 3:21-cv-00080-MMD-CLB
3:21-cv-00103-MMD-CLB
and
WESTERN WATERSHEDS PROJECT;
WILDLANDS DEFENSE; GREAT
BASIN RESOURCE WATCH; BASIN
AND RANGE WATCH,
Plaintiffs,
RENO-SPARKS INDIAN COLONY;
BURNS PAIUTE TRIBE; ATSA
KOODAKUH WYH NUWU PEOPLE OF
RED MOUNTAIN,
Intervenor-Plaintiffs,
v.
ESTER M. MCCULLOUGH, District
Manager; BUREAU OF LAND
MANAGEMENT; U.S. DEPARTMENT
OF THE INTERIOR,
3
Defendants-Appellees,
LITHIUM NEVADA CORPORATION,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted June 27, 2023
Pasadena, California
Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.
Plaintiffs1 appeal the district court’s grant of partial summary judgment in
favor of the Federal Defendants2 and Lithium Nevada Corporation in Plaintiffs’
actions challenging a BLM’s approval of a Thacker Pass Lithium Mine Project (the
“Project”). Bartell Ranch also appeals the district court’s denial of its motion to
admit extra-record evidence. We review the district court’s grant of summary
judgment de novo. Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of
1
We refer to Western Watersheds Project, Great Basin Resource Watch,
Basin and Range Watch, and Wildlands Defense (collectively, “Western
Watersheds”); Bartell Ranch, LLC, and Edward Bartell (collectively, “Bartell
Ranch”); and the Burns Paiute Tribe collectively as the “Plaintiffs.”
2
We refer to Ester McCullough, the Bureau of Land Management (“BLM”),
and the U.S. Department of Interior collectively as the “Federal Defendants.”
4
Interior, 608 F.3d 592, 598 (9th Cir. 2010). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. Because judicial review of agency decisions under the National
Environmental Policy Act (“NEPA”), the National Historic Preservation Act
(“NHPA”), and the Federal Land Policy and Management Act (“FLPMA”) is
governed by Section 706 of the Administrative Procedure Act, we will uphold the
agency’s action unless it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. (quoting 5 U.S.C. § 706(2)(A)).
A. The BLM did not abuse its discretion in determinating that the
Record of Decision (“ROD”) does not authorize violations of applicable water-
quality standards. The ROD states that the BLM conditioned its approval on
Lithium Nevada Corporation’s compliance with “monitor[ing] groundwater
sources according to [the Nevada Division of Environmental Protection (NDEP)]
standards” and “maintain[ing] water quality and quantity for wildlife, livestock,
and human consumption to State of Nevada standards.” The ROD also states that
Lithium Nevada Corporation must “regularly monitor groundwater levels in
designated wells” and “update the groundwater model with firsthand information.”
Additionally, the ROD does not impermissibly harm the greater sage-grouse
population, which are neither threatened nor endangered, see 43 C.F.R.
5
§ 3809.420(b)(7). Thus, the BLM was not arbitrary, capricious, or otherwise not in
accordance with law in complying with FLPMA’s mandate “to prevent
unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b).
B. The BLM’s approval of the Project was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with NEPA. See Or. Env’t
Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987) (“The reviewing court may
not substitute its judgment for that of the agency concerning the wisdom or
prudence of a proposed action.” (citation omitted)); id. (“The reviewing court may
not ‘fly speck’ an [Environmental Impact Statement (‘EIS’)].” (citation omitted)).
First, the BLM properly addressed cumulative impacts in the Final
Environmental Impact Statement (“FEIS”), see Notice of Availability of the Final
Environmental Impact Statement for the Proposed Thacker Pass Project, 85 Fed.
Reg. 78349, 78349 (Dec. 4, 2020), with a cumulative effects chapter that provided
more than just vague and conclusory statements. See Ctr. for Cmty. Action &
Env’t Just. v. Fed. Aviation Admin., 61 F.4th 633, 645–47 (9th Cir. 2023). The
FEIS included cumulative effects study areas for 20 resources with supporting
data, included a “Past and Present Actions” section that identified “[p]ast and
present development projects and other actions” in the study area, and included a
“Reasonably Foreseeable Future Actions” section that identified other development
6
predicted in the area. Additionally, the BLM quantified impacts for many
resources, including air quality.
Second, the FEIS “contain[ed] ‘a reasonably complete discussion of possible
mitigation measures’” for groundwater pollution, wildlife impacts (such as
mitigation efforts for migratory birds, raptors, big game, nongame, and special
status species), air pollution, and groundwater quantity, in compliance with NEPA.
See Okanogan Highlands All. v. Williams, 236 F.3d 468, 473 (9th Cir. 2000)
(citation omitted).
Third, the BLM properly described baseline conditions for pronghorn
antelope, greater sage-grouse, and other wildlife; and analyzed effects compared to
these baselines, such as acknowledging habitat loss, in compliance with NEPA.
See Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 508 (9th
Cir. 1988) (“[A] reasonably thorough discussion of the significant aspects of the
probable environmental consequences” satisfies NEPA. (citation omitted)).
Fourth, the BLM reasonably relied on springs and seeps baseflow data
collected by contractor Piteau Associates (“Piteau”) to create water resource
7
baselines in compliance with NEPA,3 because the BLM “independently evaluate[d]
the [FEIS] prior to its approval,” 40 C.F.R. § 1506.5(c) (1978), amended by 40
C.F.R. § 1506.5 (2020), by requesting Piteau’s datasets, providing comments on
Piteau’s reports, requesting supplemental information, and meeting with Piteau.
See id.; see also Friends of the Earth v. Hintz, 800 F.2d 822, 835 (9th Cir. 1986)
(citing Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 643 (5th Cir. 1983)).
Fifth, the BLM did not violate NEPA by failing to publicly produce records
outside the formal NEPA process. See, e.g., 40 C.F.R. §§ 1503.1–.4; Notice of
Intent To Prepare a Draft Environmental Impact Statement and Resource
Management Plan Amendment, 85 Fed. Reg. 3413, 3414 (Jan. 21, 2020); Notice of
Availability of the Draft Environmental Impact Statement, 85 Fed. Reg. 45651,
45651 (July 29, 2020); 85 Fed. Reg. at 78349.
Sixth, the BLM took the requisite “hard look” at impacts on cultural
resources in compliance with NEPA by “identif[ying] and document[ing]” historic
3
In some instances zero-flow measurements were accurate and not the result
of error; in other circumstances, the data collected by Piteau should have been
“revised to say ‘no measurement’ as opposed to ‘zero’” gallons per minute.
However, the BLM’s reliance on Piteau’s results and methodology was not
“arbitrary and capricious,” because the BLM was aware of these discrepancies and
explained that they were not material, and the FEIS still “conservatively assume[d]
that there [was] a potential risk that drawdown associated with the mine could
reduce baseflow to perennial springs.” See Idaho Wool Growers Ass’n v. Vilsack,
816 F.3d 1095, 1105 (9th Cir. 2016).
8
properties “through archival background research and by conducting intensive
pedestrian inventories,” and by consulting three Tribes, which did “not raise[] any
concerns about specific traditional areas, sacred sites, or ceremonial areas or
activities in the Project area.”
C. The BLM’s identification of tribes for consultation was not arbitrary
or capricious and did not violate NHPA, because the BLM reasonably and in good
faith identified tribes for consultation, see 36 C.F.R. § 800.2(c)(2)(ii)(A). There
was no evidence before the BLM that suggested that the Burns Paiute Tribe
attached religious or cultural significance to sites in the Project area. The BLM
contacted the Burns Paiute Tribe for consultation for an ethnographic assessment
for the Winnemucca Resource Management Plan (RMP), which encompassed this
area. The Burns Paiute Tribe did not respond to these contacts; instead, its
representative responded that the Burns Paiute Tribe “would defer consultation to
the tribes that had reservations closer to the study area” and did not need to remain
on the mailing list. During the four other projects involving the Thacker Pass
Project area, the BLM never had any information that the Burns Paiute Tribe
claimed a cultural, religious, or historical interest in the Project area.
2. We review a district court’s decision to remand without vacatur for an
abuse of discretion. Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1080 (9th
9
Cir. 2010). The district court did not abuse its discretion in ordering remand
without vacatur. The district court correctly stated the legal standard and found
that the BLM’s sole error weighed against vacatur, see Pollinator Stewardship
Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015), and “there was ‘at least a
serious possibility that the [agency would] be able to substantiate its decision on
remand,’” see id. (quoting Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988
F.2d 146, 151 (D.C. Cir. 1993)).
3. We “review the district court’s decision to exclude extra-record evidence
for an abuse of discretion.” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443, 1447 (9th Cir. 1996) (citing Friends of the Payette v. Horseshoe
Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993)). The district court did
not abuse its discretion in denying Bartell Ranch’s motion to admit extra-record
evidence, because the evidence from December 2021 post-dates the ROD, see
Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d
584, 600 (9th Cir. 2018). Additionally, none of the Lands Council exceptions
10
apply to admit the extra-record evidence. See Lands Council v. Powell, 395 F.3d
1019, 1030 (9th Cir. 2005).4
AFFRIMED.5
4
We do not address whether the BLM violated FLPMA by approving the
Project without requiring compliance with certain RMP provisions, because the
district court awarded summary judgment to the Plaintiffs on the threshold issue;
the Federal Defendants and Lithium Nevada Corporation did not appeal this issue;
and, if the Plaintiffs disagree with the BLM’s analysis on remand, they should
make those arguments first to a district court on the appropriate record. We
decline to address whether the BLM is required to inquire into the validity of
Lithium Nevada Corporation’s mining claims as to the water and power lines under
Center for Biological Diversity v. United States Fish and Wildlife Service, 33 F.4th
1202 (9th Cir. 2022), because this argument was not specifically presented and
developed before the district court. See Villanueva v. California, 986 F.3d 1158,
1164 n.4 (9th Cir. 2021).
5
The motion of the Building and Construction Trades Council of Northern
Nevada to become an amicus is GRANTED (Dkt. 72).
11