Concerned Citizens And Retired Miners Coalition et al v. United States Forest Service et al

MOTION for Summary Judgment

D. Ariz.February 3, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment i Roger Flynn, pro hac vice Jeffrey C. Parsons, pro hac vice Western Mining Action Project P.O. Box 349 440 Main St., #2 Lyons, CO 80540 Tel: 303-823-5738 wmap@igc.org Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION CONCERNED CITIZENS AND RETIRED MINERS COALITION, ARIZONA MINING REFORM COALITION, EARTHWORKS, MARICOPA AUDUBON SOCIETY, CENTER FOR BIOLOGICAL DIVERSITY, GRAND CANYON CHAPTER OF THE SIERRA CLUB, Plaintiffs, v. U.S. FOREST SERVICE, NEIL BOSWORTH, Forest Supervisor, Tonto National Forest, JIM UPCHURCH, Deputy Regional Forester, Southwestern Region, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03115-DGC PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 1 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment ii TABLE OF CONTENTS I. INTRODUCTION AND PROJECT SUMMARY ........................................... 1 II. STANDARD OF REVIEW ................................................................................ 3 III. PLAINTIFFS HAVE STANDING ..................................................................... 4 IV. ARGUMENT ....................................................................................................... 6 A. The EA’S Consideration of the Proposed Large Scale Resolution Copper Mine Was Never Subject to Public Review Under NEPA ...... 6 B. The Resolution Copper Mine Is a “Connected Action” With the Baseline Project That Must Be Reviewed Together Under NEPA.... 10 C. The EA Failed to Fully Analyze All Direct, Indirect, and Cumulative Impacts........................................................................ 12 1. The EA fails to fully review the direct, indirect, and cumulative impacts to air quality .................................................. 14 2. The EA fails to fully review the cumulative impacts from Resolution’s proposed main mine (MPO) .................................... 17 3. The EA fails to fully analyze the cumulative impacts from other past, present, and reasonably foreseeable future actions ..... 21 D. The EA Fails to Fully Analyze the Baseline Conditions Potentially Affected by the Project, as Required by NEPA ............... 26 E. The EA Fails to Include an Adequate Mitigation Plan, Including a Detailed Review of the Effectiveness of Mitigation Measures ........... 29 F. Without the Required Analysis, the Finding of No Significant Impact (FONSI), and Decision Not to Prepare an EIS, Lacks Support in the Record ............................................................................ 31 G. The Forest Service Failed to Minimize All Adverse Impacts and Ensure that the Project Complies with All Environmental Standards ................................................................................................ 34 V. CONCLUSION .................................................................................................. 35 Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 2 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment iii TABLE OF AUTHORITIES Federal Statutes Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. .......................................................................................... passim 5 U.S.C. § 706(2) .......................................................................................................... 3, 4 Forest Service Organic Act of 1897, 16 U.S.C. §§ 478, 551 (“Organic Act”) ................................................................. passim 16 U.S.C. § 551 .............................................................................................................. 34 Clean Air Act, 42 U.S.C. §§ 1857 et seq. ......................................................................................... 17, 35 National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”) ..................................................................... passim Federal Regulations 36 C.F.R. § 228 .............................................................................................................. 3 36 C.F.R. § 228.4(c)(3) .................................................................................................. 34 36 C.F.R. § 228.8 ................................................................................................................. 34 36 C.F.R. § 228.8 (a) ................................................................................................ 17, 35 40 C.F.R. § 1500.1(b) ..................................................................................................... 9 40 C.F.R. § 1500.2(d) ..................................................................................................... 9 40 C.F.R. § 1501.4(b) ..................................................................................................... 9 40 C.F.R. § 1502.14(f) ................................................................................................... 29 40 C.F.R. § 1502.15 ....................................................................................................... 26 40 C.F.R. § 1502.16 ................................................................................................. 12, 29 40 C.F.R. § 1502.22 ....................................................................................................... 13 40 C.F.R. § 1506.6(a) ..................................................................................................... 9 Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 3 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment iv 40 C.F.R. § 1508.7 ......................................................................................................... 12 40 C.F.R. § 1508.8 ......................................................................................................... 12 40 C.F.R. § 1508.9(a)(1) ................................................................................................ 9 40 C.F.R. §§ 1508.20(a)-(e) ........................................................................................... 29 40 C.F.R. § 1508.25(a) ................................................................................................... 10 40 C.F.R. § 1508.25(c) ................................................................................................... 12 40 C.F.R. §1508.27(b) ............................................................................................... 32, 33 Federal Caselaw Baker v. U.S. Dept. of Agriculture, 928 F.Supp. 1513 (D. Idaho 1996) ................................................................................. 34 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) ......................................................................................... 4 Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172 (9th Cir. 2008) ......................................................................................... 34 Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994) ........................................................................................... 34 Colorado Environmental Coalition v. Salazar, 875 F.Supp.2d 1233 (D. Colo. 2012) ....................................................................... 14, 15 Defenders of Wildlife v. U.S. Forest Service, CV-14-02446-TUC-RM (Sept. 15, 2015) ...................................................................... 21 Dine Citizens Against Ruining Our Env’t v. Klein, 747 F. Supp. 2d 1234 (D. Colo. 2010) ........................................................................... 11 Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ....................................................................................................... 4 Gifford Pinchot Task Force v. Perez, 2014 WL 3019165 (D. Or. 2014) .......................................................... 28, 29, 30, 33, 34 Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 4 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment v Grand Canyon Trust v. F.A.A., 290 F.3d 339 (D.C. Cir. 2002) ....................................................................................... 33 Great Basin Resource Watch v. BLM, __F.3d__, 2016 WL7448094 (9th Cir. 2016)............................................... 13, 14, 21, 26 Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) ..................................................................... 8, 11, 12, 13, 21 Half Moon Bay Fishermans’ Mktg. Ass’nv. Carlucci, 857 F.2d 505 (9th Cir. 1988) ........................................................................................... 26 Idaho Conservation League v. U.S. Forest Serv., 2012 WL 3758161 (D. Idaho 2012) ............................................................................... 28 Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir.1998) .......................................................................................... 32 Jones v. Gordon, 792 F.2d 821 (9th Cir.1986) ............................................................................................ 32 Kern v. U.S. Bureau of Land Management, 284 F.3d 1062 (9th Cir. 2002) ................................................................................... 20, 21 Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549 (9th Cir. 2006) ..................................................................................... 31, 32 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ....................................................................................................... 10 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) ....................................................................................... 3, 4 Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) ........................................................................................... 33 Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010) ........................................................................................... 34 Native Village of Point Hope v. Jewell, 740 F.3d 489 (9th Cir. 2014) ........................................................................................... 13 Northern Plains Resource Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) ................................................................................... 21, 26 Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 5 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment vi Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005) ........................................................................................... 33 Oregon Natural Resources Council Fund v. Brong, 492 F.3d 1120 (9th Cir. 2007) ................................................................................... 14, 22 ONRC v. Goodman, 505 F.3d 884 (9th Cir. 2007) ........................................................................................... 13 Price Road Neighborhood Ass’n v. U.S. Dept. of Transportation, 113 F.3d 1505 (9th Cir. 1997) ......................................................................................... 9 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ....................................................................................................... 30 Rock Creek Alliance v. Forest Service, 703 F.Supp.2d 1152 (D. Montana 2010) ........................................................................ 34 Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984) ........................................................................................ 20 Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988) ........................................................................................... 4 Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079 (D.C.Cir. 1973) ...................................................................................... 20 Shoshone-Bannock Tribes of Fort Hall Reservation v. U.S. Dept. of Interior, 2011 WL 1743656 (D. Idaho 2011) ............................................................................... 28 Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983) ..................................................................................... 33 Siskiyou Regional Education Project v. Rose, 87 F. Supp. 2d 1074 (D. Or. 1999) ................................................................................. 34 South Fork Band Council v. Dept. of Interior, 588 F.3d 718 (9th Cir. 2009) ........................................................................................... 30 Te-Moak Tribe of Western Shoshone v. U.S. Dept. of Interior, 608 F.3d 592 (9th Cir. 2010) ................................................................................12, 13, 32 The Steamboaters v. FERC, 759 F.2d 1382 (9th Cir.1985) .......................................................................................... 32 Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 6 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Summary Judgment vii Thomas v. Peterson, 753 F. 2d 754 (9th Cir. 1985) .......................................................................................... 10 Western Land Exchange Project v. BLM, 315 F.Supp.2d 1068 (D. Nevada 2004) .......................................................................... 18 Secondary Authority 46 Fed. Reg. 18,026 (March 23, 1981) “Forty Most Asked Questions Concerning CEQ’s NEPA Regulations” ....................... 9 80 Fed. Reg. 65292 (October 26, 2015) ......................................................................... 15 Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 7 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 1 I. INTRODUCTION AND PROJECT SUMMARY Pursuant to this Court’s Case Management Order (Dkt. 36), Plaintiffs Concerned Citizens and Retired Miners Coalition, Arizona Mining Reform Coalition, Center for Biological Diversity, Earthworks, Maricopa Audubon Society, and Sierra Club – Grand Canyon Chapter submit this motion and memorandum for summary judgment. On August 22, 2016, the Defendant United States Forest Service (“USFS”) approved, via a Decision Notice and Finding of No Significant Impact (“DN/FONSI”), the Resolution Copper Mining Baseline Hydrological and Geotechnical Data Gathering Activities Plan of Operations (“Baseline Plan” or “Project”) on the Tonto National Forest west of the Town of Superior, Arizona. AR 17546.1 The DN/FONSI was based on the agency’s Final Environmental Assessment (“Final EA”, or “EA”) issued in January, 2016. AR 15178. As detailed herein, USFS’s decision to approve the Project violated numerous federal public land and environmental laws. These laws (with their implementing regulations and policies) include the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”), and the Forest Service Organic Act of 1897, 16 U.S.C. §§ 478, 551 (“Organic Act”). The Project area covers over 28 square miles. EA Figures 1-1 and 1-2 (depicting the project area). AR 15196 - 15198. The Project’s network of roads and drilling sites would be spread over seven (7) miles wide (east to west) and four (4) miles deep (north to south). Id. The Project is located on the southern flank of the Superstition Mountains just south of the congressionally-designated Superstition Wilderness Area. The Project’s network of roads will bisect the Arizona National Scenic Trail in at least two places. EA Figure 1-2, AR 15198. At least five (5) of the Project’s drill sites and trenching operations will be within ½ mile of the Arizona Trail. Id. According to the Forest Service: 1 “AR” refers to the bates page number in the Administrative Record submitted by the USFS. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 8 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 2 The Arizona Trail has something for everyone, from remote and challenging wilderness to easily accessible passages near many Gateway Communities, this trail showcases Arizona’s diverse vegetation, wildlife, scenery, and history in a way that provides a unique and unparalleled Arizona experience. http://www.fs.usda.gov/main/azt/home (reviewed Jan. 26, 2017). Among other components, the Project involves the drilling of thirty-eight (38) geotechnical drill sites, excavation of thirty-two (32) test trenches, and drilling of sixteen (16) hydrological testing and monitoring wells, two laydown yards for storage of materials and equipment, along with necessary construction and maintenance of road improvements for heavy equipment access. EA 1-2, AR 15193. In addition to reconstructing existing roads to accommodate the heavy equipment, the DN/FONSI authorizes construction of seven (7) new roads on public land. EA Figure 1-2 (depicting access routes), AR 15198. The Project will cause direct disturbance on approximately 75 acres of federal public lands administered by the USFS, as well as indirect impacts to the surrounding public lands. DN/FONSI 1, AR 17546. The drilling and other Project activities would operate 24 hours a day, seven days a week. EA 2-18, AR 15223. The Project would locate numerous drillings sites along Forest roads that serve as important public access routes to trailheads leading into the Superstition Wilderness. The Project’s heavy equipment will also travel along and use these Wilderness-access routes. Final EA Figure 1-2, AR 15193. Implementation of the Project is expected to take approximately two (2) years. The sixteen (16) hydrological drill sites are expected to require six (6) months, the thirty-eight (38) geotechnical drill sites approximately nine (9) to ten (10) months, and the test trenches approximately three (3) to four (4) months. The entire Project is authorized for a ten (10) year period. EA 2-3, 4, AR 15208-09. The Project would occur on lands where Defendant-Intervenor Resolution Copper Mining LLC (“Resolution”) proposes to construct a large tailings waste storage facility for its Resolution Copper Mine (or “Main Mine”), one of the largest proposed copper mines in the country. Resolution submitted its Resolution Copper Mining Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 9 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 3 General Mining Plan of Operations (“MPO”) for the large-scale copper mine proposal in 2013. EA 3-10, AR 15237. The USFS is currently in the process of developing a separate Environmental Impact Statement (EIS) for the Main Mine proposal. Id. The Baseline Plan area includes, and is adjacent or near to, other current, recent, and proposed mineral operations on the National Forest, including the “Copper King” exploration project, the “Red Top” exploration project, and the “Superior West Exploration Plan,” among other projects, as well as the Resolution Copper Mine. EA Table 3-1 (listing other projects in area), AR 15235-36. The EA and DN/FONSI are substantially inadequate and violate NEPA. Among other inadequacies noted herein, the EA fails to properly review all direct, indirect, and cumulative impacts (as well as connected actions), fails to conduct the required baseline analysis (and postpones consideration of critical information until after the NEPA process is concluded), fails to conduct the proper mitigation analysis (including the effectiveness of mitigation measures), and presents significant new issues for which the public did not have the proper opportunity to comment upon before the close of the comment period on the Draft EA, in violation of NEPA. In addition, the agency failed to meet its substantive duty to “minimize adverse impacts” and ensure compliance with all other environmental laws as required by the 1897 Organic Act and USFS mining regulations at 36 C.F.R. §228. This is particularly true regarding federal Ozone air pollution standards, which the agency admits were not analyzed, and the record shows will likely be exceeded. II. STANDARD OF REVIEW “Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record.” Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005). Pursuant to the APA, a federal court “shall … hold unlawful and set aside agency action, findings, and conclusions found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 10 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 4 not in accordance with law; [or] … (D) without observance of procedures required by law.” 5 U.S.C. § 706(2). The agency’s decisions must be “fully informed and well-considered.” Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988). “[W]e need not forgive a clear error of judgment. An agency’s decision not to prepare an EIS will be considered unreasonable if the agency fails to supply a convincing statement of reasons why potential effects are insignificant.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998)(citations omitted). “An agency’s action is arbitrary and capricious if the agency fails to consider an important aspect of the problem, if the agency offers an explanation that is contrary to the evidence, … or if the agency’s decision is contrary to the governing law. 5 U.S.C. § 706(2).” Lands Council v. Powell, 395 F.3d at 1026. III. PLAINTIFFS HAVE STANDING Plaintiffs have standing to sue, because members have suffered, and will continue to suffer, injuries in fact that are fairly traceable to, and would thus be redressed by invalidation of, the USFS actions in this case, including the authorization of the challenged Project on public lands. “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183 (2000). Plaintiff Concerned Citizens and Retired Miners Coalition is a nonprofit group of citizens who: (1) reside in Superior, Arizona, or do not reside in Superior, Arizona, but are affiliated with relatives who are residents; and (2) are retired hard-rock miners who previously worked in now non-operational mines in and around Superior. Plaintiff Arizona Mining Reform Coalition is a nonprofit organization comprised of Arizona groups and individuals that work to ensure that responsible Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 11 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 5 mining contributes to healthy communities, a healthy environment, and, when all costs are factored in, is a net benefit to Arizona. Plaintiff Maricopa Audubon Society is a nonprofit organization of volunteers dedicated to the enjoyment of birds and other wildlife with a primary focus on the protection and restoration of the habitat of the Southwest through fellowship, education, and community involvement. Maricopa Audubon Society members regularly volunteer at the nearby Boyce Thompson Arboretum and participate in the Superior Christmas Bird Count, an annual event focusing on the observation of bird species in and around the Superior area, including the lands in the Project area. The Center for Biological Diversity is a nonprofit public interest organization with an office located in Tucson, Arizona, representing more than 1 million members and supporters nationwide dedicated to the conservation and recovery of wildlife and plant species and their habitats. Earthworks is a nonprofit organization dedicated to protecting communities and the environment from the adverse impacts of mineral and energy development while promoting sustainable solutions. Earthworks works for clean air, water and land, healthy communities, and corporate accountability. The Sierra Club is one of the nation’s oldest and most influential grassroots nonprofit organizations whose mission is “to explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earth’s ecosystems and resources; and to educate and enlist humanity to protect and restore the quality of the natural and human environments.” Sierra Club has more than 2.4 million members and supporters with 35,000 in Arizona as part of the Grand Canyon Chapter. Plaintiffs have long-standing interests in the proper and lawful management of the Tonto National Forest near and adjacent to the town of Superior, including the lands within and around the Project area. Plaintiffs also have long-standing interests in the proper implementation of NEPA and federal public land management laws. Members, officers, staff, and supporters of Plaintiffs participate in a wide range of aesthetic, Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 12 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 6 scientific research, and recreational activities on the Tonto National Forest and within and adjacent to the Project lands. As shown by the attached Declarations, Plaintiffs’ members hike, picnic, drive vehicles, take pictures, appreciate scenery, solitude, and quiet, engage in scientific research projects, and attempt to view and value wildlife on the lands at and around the Project site. Plaintiffs’ members have concrete plans to continue pursuing these activities in the Tonto National Forest and on the specific lands and transportation routes impacted by the Project. Many of Plaintiffs’ members live in the town of Superior (just east of the Project area) and Queen Valley (just west of the Project area). The interests of Plaintiffs and their members, officers, staff, and supporters in this matter are immediately, substantially, and adversely affected by Defendants’ failure to comply with NEPA, the 1897 Organic Act, the APA, and by the Project’s activities themselves. The requested relief will redress the injuries of the Plaintiffs, and their members, officers, staff, and supporters. See Declarations of Roy Chavez, Mark Larson, Roger Featherstone, John Krieg, Randall Serraglio, and James Vaaler, attached as Exhibits 1-6. IV. ARGUMENT A. The EA’S Consideration of the Proposed Large Scale Resolution Copper Mine Was Never Subject to Public Review Under NEPA The USFS received the proposed Baseline Plan from Resolution in 2013, and conducted public “scoping” in 2014. AR 6214. Plaintiffs submitted extensive comments during the scoping period, specifically noting that the main Resolution Copper Mine was already proposed to the USFS and thus was a “reasonably foreseeable future action,” the cumulative impacts of which must be analyzed in the agency’s EA under NEPA. See Plaintiffs’ June 2014 scoping comments, AR 6367, 6854, 6893. After receiving public comments, the agency prepared its Preliminary/Draft Environmental Assessment (“Draft EA”) in March of 2015. AR 9696; USFS Preliminary EA Scoping Comment and Response Report (compiling and responding to comments), AR 9868. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 13 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 7 In the Draft EA, the agency refused the requests to include the Main Mine as a reasonably foreseeable future action. Instead, the Draft EA said that “development of the ore body is speculative at this time.” Draft EA 3-5, AR 9750. This is despite the fact that the agency had received, and was currently reviewing, Resolution’s formal proposal for the Mine Main submitted in November 2013. AR 4355. Thus, the agency failed to consider, and did not even list, the Main Mine as a reasonably foreseeable future action for purposes of the cumulative impacts review – thus avoiding the requirement to include any analysis of the impacts of the proposed mine. See Draft EA, March 2015, Figure 3-1 (map of cumulative impacts area and activities with no mention of main copper mine), AR 9748; Table 3-1 (listing other projects in the cumulative impacts area with no mention of the Main Mine), AR 9751-52. Instead, the agency stated that: Section 1.5.1 [of the Draft EA] provides information on why development of the deep underground copper ore body, to include development of a tailings storage facility on National Forest System lands, is not a connected action to the proposed Baseline activities, and therefore is not evaluated in this preliminary EA. Draft EA A-8 (response to comments)(emphasis added), AR 9867. See also USFS Preliminary EA Scoping Comment and Response Report, Table 2-48 (“development of the deep underground copper ore body is not a connected action to the Proposed Action [Baseline Plan], and therefore was not evaluated in the preliminary EA.”), AR 9930. The agency’s Draft EA and Response to Scoping never responded to the Plaintiffs’ and San Carlos Tribe’s argument about cumulative impacts from the proposed Main Mine. Rather, the agency only repeated its position that the Baseline Plan and the Mine were not “connected actions” and thus under its view the agency need not consider the cumulative impacts from the proposed Mine. Yet as the Ninth Circuit has squarely held, the fact that two projects are not considered “connected actions” under NEPA (even if true, which is not the case as shown below), does not eliminate the agency’s independent and separate duty to Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 14 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 8 consider the cumulative impacts of the other project in the NEPA review for the first project. See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 968-74 (9th Cir. 2006). Here, the cumulative impacts from the Main Mine were never provided to the public, or analyzed by the agency, in the Draft EA. In their April 2015 comments on the Draft EA, Plaintiffs reiterated their concern that the agency failed to review the cumulative impacts of the Main Mine. AR 10781, at 10787-92. The public comment period on the Draft EA was the last opportunity for public comment on the Baseline Project during the agency’s NEPA review prior to the issuance of the Final EA in 2016. In the January 2016 Final EA, however, the USFS switched positions and finally recognized the full mine proposal as reasonably foreseeable, and included a discussion of the Main Mine. Final EA 1-9 (“The MPO [Resolution Copper Mining Plan of Operations] is a reasonably foreseeable future action”), AR 15200. Compare Final EA Figure 3-1 (expanding the “cumulative effects analysis area” south of U.S. Highway 60 to include the Main Mine), AR 15232, with Draft EA Figure 3-1 (limiting “cumulative effects analysis area” to only north of U.S. Highway 60, with no depiction of the location of the Main Mine), AR 9748. The Final EA admitted that the MPO/Main Mine is a “reasonably foreseeable future action” (“RFFA”) that must be considered under NEPA. EA 3-10, AR 15237. See also EA Table 3-1, EA 3-7 to -9 (listing the MPO as a RFFA with cumulative impacts to “Water, soils, vegetation, noxious weeds and invasive species, wildlife, recreation, visual, cultural, travel management, range, air quality, and noise” resources), AR 15234-36. The agency never provided an opportunity to comment on this switch, nor upon the brand new analysis of the Main Mine (albeit improperly truncated as noted below) in the Final EA of the cumulative impacts of the Mine’s operations. As a result, the public never had an opportunity to review and comment on the agency’s analysis of the cumulative impacts associated with the full mine, or the extent of the new cumulative impact area, in violation of NEPA. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 15 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 9 While the Final EA purports to review the cumulative impacts from the MPO (albeit inadequately as detailed below), none of these considerations or impacts were even mentioned in the Draft EA. NEPA requires full public review – the agency cannot bring important new issues to light for the first time in a final EA to which the public was never given the opportunity to comment upon. “One of the twin aims of NEPA is active public involvement and access to information.” Price Road Neighborhood Ass’n v. U.S. Dept. of Transportation, 113 F.3d 1505, 1511 (9th Cir. 1997). NEPA regulations require that agencies “shall to the fullest extent possible ... [e]ncourage and facilitate public involvement in the decisions which affect the quality of the human environment.” 40 C.F.R. §1500.2(d). “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken ... Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40 C.F.R. §1500.1(b) (emphasis added). The USFS must “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures.” 40 C.F.R. §1506.6(a). The agency “shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by [40 C.F.R. §] 1508.9(a)(1).” 40 C.F.R. §1501.4(b); see also 46 Fed. Reg. 18,026 (March 23, 1981) (“Forty Most Asked Questions Concerning CEQ’s NEPA Regulations,” answer to question 38: “Section 1506.6 requires agencies to involve the public in implementing their NEPA procedures, and this includes public involvement in the preparation of EAs and FONSIs.”). Eliminating the public’s opportunity to comment upon what the agency now considers a major project with significant impacts (i.e., the Main Mine), thus violated NEPA. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 16 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 10 B. The Resolution Copper Mine Is a “Connected Action” With the Baseline Project That Must Be Reviewed Together Under NEPA In addition to, and separate from, the agency’s duty to review the cumulative and other impacts from the Main Mine and other projects in the EA for the Baseline Project, NEPA requires that the Main Mine and the Project be considered in one EA/EIS (likely an EIS in this case) as a “connected action” under NEPA. This is because the Main Mine and the Project are part of one interdependent mining project, as acknowledged by Resolution. See Table 1.3-2 of the 2013 Resolution MPO, AR 03064-65. There, Resolution admits that the “Baseline Hydrological & Geotechnical Data Gathering Activities” listed in Table 1.3-2 “is being conducted in support of the Resolution Project to facilitate activities such as exploration, the collection of environmental baseline data, facility designs, and associated access.” 2013 MPO 5, AR 03064. “[A]n agency is required to consider more than one action in a single EIS if they are ‘connected actions,’ ‘cumulative actions,’ or ‘similar actions.’” Kleppe v. Sierra Club, 427 U.S. 390, 408 (1976). “[P]roposals for . . . actions that will have cumulative or synergistic environmental impact upon a region . . . pending concurrently before an agency . . . must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action.” Kleppe, 427 U.S. at 410. When preparing an EA or an EIS, an agency must consider all “connected actions,” “cumulative actions,” and “similar actions.” 40 C.F.R. §1508.25(a). Actions are “connected” if they trigger other actions, cannot proceed without previous or simultaneous actions, or are “interdependent parts of a larger action and depend on the larger action for their justification.” Id. § 1508.25(a)(1). If one project cannot proceed without the other project (i.e., “but for” the other project), or if the first project is not “independent” of the second project, the two projects are considered connected actions and must be reviewed in the same NEPA review. Thomas v. Peterson, 753 F. 2d 754, 758-60 (9th Cir. 1985). “The purpose of this requirement is to prevent an agency from dividing a project into multiple ‘actions,’ each of which individually has an Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 17 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 11 insignificant environmental impact, but which collectively have a substantial impact. … The crux of the test is whether each of the two projects would have taken place with or without the other and thus had independent utility.” Great Basin Mine Watch, 456 F.3d at 969 (9th Cir. 2006). Even if the Mine could conceivably occur without the previous or simultaneous occurrence of the Project (or vice versa), which is not the case here, if it could not occur without such actions it is a connected action and must be considered within the same NEPA document as the underlying action. “[E]ven though an action could conceivably occur without the previous or simultaneous occurrence of another action, if it would not occur without such action it is a ‘connected action’ and must be considered within the same NEPA document as the underlying action.” Dine Citizens Against Ruining Our Env’t v. Klein, 747 F. Supp. 2d 1234, 1254 (D. Colo. 2010). The EA asserts that “the Resolution Copper mine is not dependent on authorization of the Baseline Plan.” Response Report Table 2-25, AR 15523. Yet, the agency admits that “the Baseline Plan is critical to support the EIS for the proposed MPO.” Table 2-24, AR 15522. Also, in arguing that Resolution has a “right” to conduct the Baseline Project under the 1872 Mining Law and 1955 Surface Resources Act, the agency states that the Project is “reasonably incident to prospecting, exploration, development, mining or processing of copper ore from the Resolution ore body.” Response Report Table 2-11, AR 15509. The EA also acknowledged that: “The proposed [Baseline] Plan … is necessary to support design and environmental analysis of a proposed TSF [Tailings Storage Facility], which would be incident to mining and processing of mineral resources at the Resolution Copper Mine.” EA 1-3, AR 15194. See also DN at 10 (Baseline Project is “critical” to review and operation of the Main Mine), AR 17555. Thus, as acknowledged by Resolution and the USFS, the Project is a “critical” and “necessary” part of the Main Mine, and would not occur but for the Main Mine. Similarly, as also admitted by Resolution and the USFS, the Main Mine would not Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 18 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 12 occur without this Project. As such, they are considered “connected actions” under NEPA and must be considered in one NEPA document (EA or EIS). C. The EA Failed to Fully Analyze All Direct, Indirect, and Cumulative Impacts Even if the Main Mine and the Baseline Project are not “connected actions” under NEPA, the EA must fully review all direct, indirect, and cumulative environmental impacts of the Project. 40 C.F.R. §§1502.16, 1508.8, 1508.25(c). Direct effects are caused by the action and occur at the same time and place as the proposed project. §1508.8(a). Indirect effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. §1508.8(b). Types of impacts include “effects on natural resources and on the components, structures, and functioning of affected ecosystems,” as well as “aesthetic, historic, cultural, economic, social or health [effects].” Id. Cumulative effects are defined as: [T]he impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. §1508.7. In a leading mining and NEPA case dealing with two nearby mining projects, the Ninth Circuit held that, even though the two mines were not “connected actions” under NEPA, the NEPA review document for each mine had to fully review the cumulative effects/impacts of the two mines together on the regional environment. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 968- 74 (9th Cir. 2006). In an EA’s cumulative impact analysis, an agency must take a “hard look” at all actions. An EA’s analysis of cumulative impacts must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 19 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 13 are thought to have impacted the environment. … Without such information, neither the courts nor the public ... can be assured that the [agency] provided the hard look that it is required to provide. Te-Moak Tribe of Western Shoshone v. U.S. Dept. of Interior, 608 F.3d 592, 603 (9th Cir. 2010) (rejecting EA for mineral exploration that had failed to include detailed analysis of impacts from nearby proposed mining operations). The Ninth Circuit has repeatedly faulted the federal land agencies’ failures to fully review the cumulative impacts of mining projects. In the most recent case, vacating BLM’s approval of a mine, the court stated that “‘in a cumulative impact analysis, an agency must take a ‘hard look’ at all actions that may combine with the action under consideration to affect the environment.’” Great Basin Resource Watch v. BLM, __F.3d__, 2016 WL7448094, * 5 (9th Cir. 2016)(emphasis in original)(quoting Te-Moak Tribe). BLM violated NEPA because it “did not ‘identify and discuss the impacts that will be caused by each successive project, including how the combination of those various impacts is expected to affect the environment.’” Id. *6 quoting Great Basin Mine Watch, 456 F.3d 973-74. In Great Basin Mine Watch, the Ninth Circuit required “mine-specific … cumulative data,” a “quantified assessment of their [other projects] combined environmental impacts,” and “objective quantification of the impacts” from other existing and proposed mining operations in the region. Id. at 972-74. The agency cannot “merely list other [projects] in the area without detailing impacts from each one.” Id. at 972. See also ONRC v. Goodman, 505 F.3d 884, 893 (9th Cir. 2007). In addition to the fundamental cumulative impacts review requirements noted above, NEPA regulations also require that the agency obtain the missing “quantitative assessment” information. 40 C.F.R. §1502.22. “If there is ‘essential’ information at the plan- or site-specific development and production stage, [the agency] will be required to perform the analysis under § 1502.22(b).” Native Village of Point Hope v. Jewell, 740 F.3d 489, 499 (9th Cir. 2014). Here, the adverse impacts from the Project when added to other past, present or reasonably foreseeable future actions is clearly essential to the Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 20 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 14 USFS’ determination (and duty to ensure) that the Project complies with all legal requirements and minimizes all adverse environmental impacts. Here, the USFS failed to fully consider the cumulative impacts from all past, present, and reasonably foreseeable future projects in the area on water and air quality including ground and surface water quantity and quality, recreation, cultural/religious, wildlife, transportation/traffic, scenic and visual resources, etc. At a minimum, this requires the agency to fully review the cumulative impacts from the other mining, grazing, recreation, energy development, construction, roads, etc., in the area. 1. The EA fails to fully review the direct, indirect, and cumulative impacts to air quality Although as detailed below, the EA failed to provide the “quantified assessment” of impacts to all affected resources from the Project along with the other activities in the area, perhaps the most critical omission involves the agency’s failure to analyze the direct, indirect, and cumulative impacts to air quality. The EA admits that the area has exceeded the allowable National Ambient Air Quality Standard (NAAQS) for the Criteria Pollutant of Ozone. EA Table 3-12 (EA 3-92), AR 15319; EA 3-95, AR 15322. Yet no analysis has been done of the Ozone levels created or exacerbated by the Project’s emissions, let alone the cumulative Ozone level caused by emissions of the other current and reasonably foreseeable future projects when combined with the Project. In Great Basin Resource Watch, the agency failed to “quantify the cumulative air impacts of the Project together with [another mine] and vehicle emissions.” 2016 WL7448094, *6. The Ninth Circuit vacated BLM’s project approval because “[t]he cumulative air impacts portion of the FEIS fails to ‘enumerate the environmental effects of other projects’ or ‘consider the interaction of multiple activities.’” Id. * 7, quoting Oregon Natural Resources Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007). See also Colorado Environmental Coalition v. Salazar, 875 F.Supp.2d 1233, 1257 (D. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 21 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 15 Colo. 2012)(agency failed to take required “hard look” at ozone formation from oil and gas operations). Importantly, Ozone has exceeded, or almost exceeded, the NAAQS every year since 2008. Final EA Table 3-12, AR 15319. Yet, Ozone is the only Criteria Pollutant not analyzed in the EA (either the direct/indirect or cumulative emissions), although the cumulative emissions from the other current and reasonably foreseeable future activities were also never calculated for the other Criteria Pollutants. This is despite admitting that Project emissions “could contribute to the formation of ground level ozone in the Project area.” EA at 3-95, AR 15322.2 In addition to never analyzing the cumulative impacts for any Criteria Air Pollutant, including Ozone, the Final EA’s brief mention of air impacts used the wrong (and previously higher) EPA standard for Ozone. The USFS’s Objection Review (issued in response to Plaintiffs administrative appeal/Objection to the Final EA and Draft DN/FONSI) states that “the NAAQS for ozone were lowered since the EA was written from 75 ppb [parts per billion] to 70 ppb.” Objection Review 3, AR 17217. The U.S. EPA issued its final rule revising the NAAQS for Ozone down to 70 ppb in October, 2015, with an effective date of December 28, 2015. See 80 Fed.Reg. 65292 (October 26, 2015). Thus, the lowered Ozone standard was in effect before the Final EA was completed and issued in January 2016. Yet the Final EA never analyzed whether the Project emissions, coupled with the existing background levels and cumulative 2 The U.S. EPA has determined that ground level Ozone, the type generated by these projects, pose serious threats to human health. “Recent studies consistently report associations between short-term ozone exposures and total non-accidental mortality, which includes deaths from respiratory causes.” U.S. EPA, Health Effects of Ozone Pollution, https://www.epa.gov/ozone-pollution/health-effects-ozone-pollution (reviewed Jan. 26, 2017). See also Complaint (Dkt. 1) at 24-26 (detailing further EPA technical findings regarding the health impacts from ground level ozone). Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 22 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 16 emissions from other projects in the area, will comply with the new 70 ppb Ozone NAAQS standard (let alone the previous 75 ppb standard). The Objection Review states that “[a] quick analysis of the data presented in the EA as well as more current air quality data from the Queen monitoring station indicate that it is highly likely that this area will become a non-attainment area [i.e., above the air standards] for the 8-hr Ozone NAAQS when new designations are determined in 2017.” Objection Review 3, AR 17217. The USFS admitted that “the 8-hr Ozone NAAQS will have to be 67 ppb or less for the area to achieve the standard in 2017, a value that hasn’t been achieved since at least 2008.” Id. In other words, because the background Ozone concentrations in the area have exceed the old standard of 75 ppb, any new emission sources (such as the Project) would essentially cause further violations. Yet despite this prediction that Ozone standards would likely be violated, no additional mitigation measures, or any discussion of mitigation effectiveness, was conducted. The formation of Ozone is due to the “increase in emissions of NOx [Nitrogen Oxides]” from the Project. EA 3-95, AR 15322. “In the presence of sunlight, NOx and volatile organic compounds (VOCs) can react to form ground-level ozone.” Id. Although the EA calculates that the Project will emit 102.5 tons per year of NOx, and 8.6 tons/year of VOCs, EA Table 3-18, Id., and that NOx and VOC emissions contribute to Ozone, no analysis of Ozone levels was done. The agency concluded that due to the “temporary nature” of the Project, “no measurable increases in area ozone levels are likely.” EA 3-95, Id. No supporting analysis is provided. The entire cumulative impacts section for air quality in the Final EA consists of less than one page, with no mention of Ozone, let alone a calculation of any of the cumulative air emissions from the other current and proposed projects in the area. EA 3-96, AR 15323. The cumulative impacts of Ozone pollution were not examined, including the impacts from the formation of Ozone from the other projects in the area that will also result in increased NOx and VOC emissions (and thus Ozone formation) Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 23 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 17 such as construction on, and use of, Highway 60, access to and operations at Red Top, Copper King, Omya Limestone Quarry, Imerys Perlite Mine and the other projects listed in EA Table 3-1, including the Resolution Main Mine. This is in addition to proposed projects that were not even mentioned in the Final EA, such as the nearby Superior West exploration project, which was proposed to the USFS while it was preparing the Final EA. AR 14487 (Plan of Operations submitted October 14, 2015). The agency cannot approve the Project unless it can ensure that all of the NAAQS will be met. Under its mining regulations, the USFS must ensure that each “Operator shall comply with applicable Federal and state air quality standards, including the requirements of the Clean Air Act (42 U.S.C. 1857 et seq.).” 36 C.F.R. §228.8 (a). That has not been done here. The Forest Service cannot comply with NEPA, let alone its duty to ensure that all air quality standards will be met at all times under the Organic Act and its mining regulations, when it has not fully analyzed the Ozone levels that may result from the Project and other activities (as well as the cumulative air emissions of other Criteria Pollutants). 2. The EA fails to fully review the cumulative impacts from Resolution’s proposed main mine (MPO) The agency admits that the Resolution MPO is a proposed a large-scale mine in the area, and specifically within the “Cumulative Effects Analysis Area” for the Baseline Project. EA Figure 3-1, EA 3-5, AR 15232. Yet, outside of a few brief acknowledgments that the Tailings Storage Facility (TSF) for the MPO is proposed to be located in the same area as the Baseline Project, no detailed analysis of the MPO facilities has been done. Instead, the EA admits that the MPO impacts “will be addressed in a subsequent EIS.” EA 3-10, AR 15237. Yet the fact that USFS is currently preparing an EIS for the Main Mine actually supports Plaintiffs’ argument that the Mine’s cumulative impacts should be fully considered in the EA for the Baseline Project. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 24 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 18 If the project was “ripe” enough to deserve its own EIS, it was clearly “ripe” enough to be analyzed as a reasonably foreseeable future project in other NEPA documents. Indeed, it seems that BLM should have possessed some information regarding the project's impacts, given that the agency was in the process of preparing an EIS for it. Furthermore, the agency's decision to prepare an EIS in and of itself shows that BLM regarded the potential impact of the project to be significant, either individually or cumulatively. Western Land Exchange Project v. BLM, 315 F.Supp.2d 1068, 1095, n. 10 (D. Nevada 2004)(agency failed to adequately review cumulative impacts in violation of NEPA). The EA justifies its failure to review any cumulative impacts from the Main Mine on its belief that: In the EIS for the MPO, alternatives may be developed that do not conform to the proposed facilities and disturbance figures presented in the MPO. So, while development of Resolution’s deep copper ore body is reasonably foreseeable, some of the features (e.g., the tailings storage facility) may ultimately be in a different location, configured differently, or constructed with a different process. AR 15237. Yet this contradicts the agency’s acknowledgment that “the Forest Service has assumed that the facility location and configuration will be as proposed in the MPO.” Id. (emphasis added). Thus, because all of the MPO facilities are currently proposed and “reasonably foreseeable,” the agency must analyze their impacts. The agency excuses its failure to review the cumulative impacts because “detailed information concerning the potential effects of mining operations contemplated by the proposed MPO is incomplete or unavailable.” Response Report Table 2-8, AR 15506. Yet the USFS ruled the MPO “complete” in 2014: The Tonto National Forest has completed its review of the revised General Plan of Operations (Plan) for the Resolution Copper Mine Project that was submitted on September 23, 2014. Our review has determined that the Plan is complete in accordance with applicable laws, regulations, and policy. The original Plan of Operations was submitted on November 15, 2013 and additional information was subsequently provided by you during the course of the review period. Formal and informal review comments were provided by the Tonto National Forest during the review period and have been satisfactorily addressed in the Plan. Dec. 5, 2014 letter from Forest Supervisor Bosworth to Resolution (emphasis added). AR 9207. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 25 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 19 At the outset, the EA’s extremely limited discussion of the Main Mine did not even consider the most current Mine proposal the agency was reviewing while it was preparing the EA. The initial Mine MPO was submitted in November of 2013, and was revised in September 2014. Id. Yet the March 2015 Draft EA and the January 2016 Final EA never referenced or mentioned the September 2014 MPO. See, e.g., Final EA References, AR 15343-49. This is despite the fact that Plaintiffs had cited and discussed the revised MPO in their Draft EA comments in April 2015. AR 10791-92. Regarding the impacts from the Main Mine itself, USFS also asserts that it does not have to fully analyze the cumulative impacts from the Main Mine because some of the Mine’s impacts will not occur at the same time as those from the Baseline Project. USFS Response Report Table 2-6 to -8, AR 15504-06. The EA simply noted the location of the initial portions of the TSF at year two of TSF construction. EA Figure 3- 6 (EA 3-33), AR 15260. The agency’s unilateral decision to cut-off any review of the TSF and MPO activities at two years (and as noted herein, even that review is cursory at best), based on a “no temporal overlap” theory is factually and legally wrong under NEPA. Further, the fact that the final location of the MPO facilities and impacts may be “uncertain” at this time does not mean that the USFS can ignore them. It is undisputed that a large part of the area covered by the Baseline Project is actually within the areas proposed for the Main Mine. Compare AR 3265 (MPO map of facilities), with EA Figure 3-6, AR 15260 (showing location of first two years of tailings waste deposition). The “no temporal overlap” excuse is also contradicted by the EA itself which states that: “Table 3-1presents information on the reasonably foreseeable actions that may have a cumulative effect on resources because they are expected to have direct or indirect effects which overlap in time and space with the Proposed Action [Baseline project].” EA 3-4 (emphasis added), AR 15231. Table 3-1, in turn, when listing the MPO as a project included in the cumulative impacts list, states that the Main Mine’s “Spatial Relationship to the Proposed Action [Baseline Project]” will “Overlap with Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 26 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 20 project features including the proposed tailings storage facility, West Plant site, East Plant site, Magma Arizona Railroad Company (MARRCO) corridor, and tailings pipeline corridor. See L on Figure 3-1.” AR 15234. Despite this, the EA only mentions the first two years of the tailings disposal (i.e., not the other Main Mine operations that the EA says will “overlap in time and space.”). The EA’s self-imposed “temporal” limitation on the cumulative impacts analysis improperly restricts its review under NEPA. The fact that the proposed Main Mine may not be approved until after the Baseline Project is largely completed does not eliminate the agency’s duty to review the cumulative impacts from the Main Mine. That is the reason NEPA requires the agency to fully review the cumulative impacts from all “reasonably foreseeable future actions” and not just from current projects. There can be no doubt that the Baseline Project will cause surface disturbance that will remain and last into the future. Although some aspects of the Baseline Project will be finished and “reclaimed,” the EA does not propose complete elimination of all ground disturbance effects. Further, impacts to wildlife, air and water quality and quantity, recreation, and other public resources that will be adversely affected by the proposed action will also be adversely affected by the Main Mine, even if the Main Mine would occur in the future. The USFS cannot simply postpone its review of the cumulative nature of these impacts to after the impacts from the Project have already started/occurred. Any claim that there will be no incremental or cumulative environmental impact from the Project when added to the future Mine not only violates NEPA and is arbitrary and capricious; it defies logic and common sense. NEPA is not designed to postpone analysis of an environmental consequence to the last possible moment. Rather, it is designed to require such analysis as soon as it can reasonably be done. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1246 n. 9 (9th Cir.1984) (“Reasonable forecasting and speculation is ... implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as 'crystal ball inquiry,’” quoting Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C.Cir.1973)). Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 27 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 21 Kern v. U.S. Bureau of Land Management, 284 F.3d 1062, 1072 (9th Cir. 2002). See Northern Plains Resource Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078-79 (9th Cir. 2011)(same). The federal district court in Arizona recently rejected the Forest Service’s argument that it does not have to review the cumulative impacts from projects that do not “temporally overlap.” Defenders of Wildlife v. U.S. Forest Service, Slip Op. at 14- 16, CV-14-02446-TUC-RM (Sept. 15, 2015)(attached as Exhibit 7). As such, Resolution’s Main Mine must be fully reviewed under NEPA. This is in addition to any other “past, present, or reasonably foreseeable future activity” in the area (e.g., mineral operations, road use and construction, etc.). 3. The EA fails to fully analyze the cumulative impacts from other past, present, and reasonably foreseeable future actions In addition to failing to analyze the cumulative impacts from the Main Mine, the EA also violates NEPA’s cumulative impacts analysis requirements for other activities in the area. The EA contains very brief cumulative effects/impacts sections. Although Table 3-1 lists a number of projects that will result in cumulative impacts, no details about the actual impacts are provided. The Table and associated text merely lists the projects, their locations, and what resources will be affected. AR 15234-36. Such a listing, without the “quantitative analysis” of “how the combination of various impacts is expected to affect the environment,” was expressly found to violate NEPA in Great Basin Resource Watch, 2016 WL7448094, * 6, quoting Great Basin Mine Watch, 456 F.3d at 973-74. “Simply listing all relevant actions is not sufficient. Rather, some quantified or detailed information is required. Without such information, neither the courts nor the public ... can be assured that the [agency] provided the hard look that it is required to provide.” Great Basin Resource Watch, *5. “[W]e have recently noted two critical features of a cumulative effects analysis. First, it must not only describe related projects but also enumerate the environmental effects of those Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 28 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 22 projects. … Second, it must consider the interaction of multiple activities and cannot focus exclusively on the environmental impacts of an individual project.” Oregon Natural Resources Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007). The EA’s Response to Comments Report merely repeats, ad nauseam and repeatedly using the same recurring verbiage, that Table 3-1 and Section 3 complies with NEPA. AR 15535, 15536, 15537, 15538, 15540, 15543, 15545-46, 15548, 15550, 15552, 15553-54, 15555-56, 15557, 15559, 15560. Yet none of the required “detailed and quantified assessment” was done. To make matters worse, the USFS had Categorically Excluded the nearby Copper King Mineral Exploration Project and Red Top Exploration Project from public review under NEPA (i.e., no EA or EIS was done for these projects). See USFS public scoping notice letter for Copper King and Red Top, March 2, 2015, AR 9539. Thus, not only does this EA avoid any review of these projects, the agency avoided preparation of an EA or EIS for those projects as well – completely bypassing any detailed agency and public NEPA review. Further, regarding the projects listed in Table 3-1, the EA improperly limits the scope of the purported cumulative impacts analysis area near the Baseline Project to essentially just the north side of Highway 60 (although it does include some of the MPO area south of the highway east of the town of Superior). EA Figure 3-1, AR 15232. Yet the visual, noise, wildlife movement, air quality, and other impacts from the proposed action can be felt south of the Highway (and east and west of the analysis area). Other projects south of the Highway can have cumulative impacts which must be fully analyzed. Lastly, and this applies to both the Main Mine and the other projects listed in Table 3-1, the EA limits its determination of the significance of the direct, indirect, and cumulative impacts to just the impacts within the “project area” of the Baseline Project. AR 15230; see generally continued references to impacts to resources in “project area” in Chapter 3 of the EA. Yet this defies common sense as the impacts from the Baseline Project, when combined with the impacts from the MPO and other past, present, and Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 29 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 23 RFFAs, will certainly have impacts beyond the acreage of the Baseline Project. As just one example, the EA admits that the Project alone may result in the “blockage of migration or dispersal corridors” for wildlife. EA 3-54, AR 15281. Yet no analysis was done regarding these wildlife corridors – which is especially problematic due to the fact that the projects listed in Table 3-1 are/will be located in all directions around the Baseline Project. See Figure 3-1 (EA 3-5), AR 15232. The EA also fails to mention another proposed mineral exploration project in the area, the Superior West exploration project. That project was proposed to the Forest Service on October 14, 2015, during the time when the agency was preparing the Final EA. Superior West Plan of Operations, AR 14487-518. As proposed at that time, the project would conduct mineral exploration drilling on 12 drill sites on 106 potential drill site locations, near the town of Superior. A number of these sites would be in the same watershed, and use at least one of the same access roads, as the Baseline Project. Id.; July 14, 2016 USFS Public Notice letter, AR 17456. These proposed drilling locations, accessed via existing roads, new overland travel routes, and up to 50 helicopter trips, would all be located near the town of Superior. Id. In response to concerns raised by Plaintiffs to the USFS on the failure of the Baseline Project’s Final EA to include any mention of the Superior West project, let alone any analysis of its cumulative impacts, the agency admitted that: Regarding Superior West project and the Resolution baseline characterization EA: Not including Superior West project was an oversight on our part and right now we’re in the process of gathering input internally and getting some direction on how to address this supplemental information. Email from Christine Crawford, USFS to Roger Featherstone, AMRC, dated August 3, 2016 (emphasis added), AR 17500. Neither the Final EA nor the DN/FONSI made any mention of the Superior West project, or of the admitted failure of the Final EA to consider the impacts from this project. This is despite the fact that the Superior West project proposal was submitted to the USFS in October 2015, almost three months before the challenged Final EA was Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 30 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 24 completed. AR 14487-518. Interestingly, after the Final EA for the Baseline Plan was issued in January 2016, and after the Forest Service admitted that it failed to include the Superior West project in the Final EA on August 3, 2016, the company abruptly modified that project on August 11, 2016 to remove the proposed drilling and construction north of Highway 60 – just eleven days before the USFS issued the DN/FONSI. Yet, this does not change the fact that, at the time the Final EA was issued in January 2016, the Superior West project proposed to conduct drilling and other operations north of Highway 60 as shown in the October 14, 2015 Plan of Operations. The Superior West Project is controlled by Eurasian Minerals, Inc., a Canadian mineral exploration company. On May 4, 2015, Eurasian Minerals, Inc. announced that it had signed “an Exploration and Option to Purchase Agreement (the “Agreement”), through its wholly owned subsidiary Bronco Creek Exploration, for the Superior West porphyry copper project with Kennecott Exploration Company (“Kennecott”), part of the Rio Tinto Group. The project is located adjacent to the Resolution porphyry copper project, within the Superior Mining District, approximately 100 kilometers east of Phoenix, Arizona.” http://www.eurasianminerals.com/i/pdf/2015-05- 04_NR_p169na.pdf; (May 4, 2015 press release)(last viewed Jan. 27, 2017). The press release further states: “the Superior West project comprises more than 680 federal lode mining claims covering more than 5,100 hectares in the vicinity of Superior, Arizona. The boundary of the property lies less than two kilometers from the Resolution copper deposit. … Kennecott will be the operator with [Eurasian Minerals, Inc.] conducting work through the program’s first year.” Id. The Rio Tinto Group (owner of Kennecott Exploration Company), is the majority owner of the Baseline Project operator, Resolution Copper Mining. See Resolution Corporate Disclosure Statement (Dkt. 11). Overall, the agency’s analysis of cumulative impacts is largely limited to statements that certain projects listed in Table 3-1 will have an impact on a particular resource, but no additional analysis is provided. Table 3-1 contains a separate column Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 31 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 25 that lists the “resources with potential cumulative impacts” where the agency has identified the resource each project is likely to impact. AR 15234-36. However, the EA’s discussion of the cumulative impacts to each of these resources does little more than reiterate that those projects on the list will have impacts to that resource, with no quantification or discussion as to the extent of the impacts or how those impacts act in a cumulative manner with the impacts expected from the Baseline Project. The result is that the EA contains only the mere listing of projects and potential impacts without any of the analysis or detail required by NEPA to allow the public to understand the nature or extent of that impact. See AR 15251-53 (water); 15255-56 (soil); 15266-67 (vegetation); 15272-73 (invasive species); 15286-87 (wildlife); 15290-91 (range); 15299 (cultural); 15307-08 (recreation); 15316-7 (visual); 15323 (air quality) – brief cumulative impacts discussion with no detailed analysis of impacts from these other projects. The lack of cumulative impact detail contained in the EA is exacerbated by the lack of information contained in the record that would support such an analysis. For instance, while the Copper King and Red Top mineral exploration projects are anticipated to impact water, recreation, travel management, visual, and air quality resources, the only documentation in the record with respect to its cumulative impact analysis is the scoping notice the agency issued for these projects. AR 9539. Absent from the record is any documentation that the agency considered the actual projects and their impacts. Similarly, for the nearby Omya Inc.’s Superior Limestone Quarry, the EA identifies cumulative impacts to water, soils, range, travel management, recreation, visual, and air quality resources. AR 15235. Yet, the only document in the record related to that mine is a short newspaper article which contains no meaningful data or information on the impacts of the mine to any resource. AR 2367. The same is true for the Imerys Performance Minerals’ proposed mining operation, for which the only reference in the record is a public notice of the availability of a draft environmental Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 32 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 26 analysis for the mine. AR 9235. However, that environmental analysis is not found in the record, nor does the Final EA for the Baseline Project even list it as a document the agency referenced in preparing its analysis. Given the lack of any actual information, analysis, or data in the record regarding the impacts from these various projects, it is not surprising that the Final EA similarly lacks any analysis apart from a simple identification of the various resources these projects are likely to impact. Such a cursory and incomplete review does not satisfy NEPA’s requirements. D. The EA Fails to Fully Analyze the Baseline Conditions Potentially Affected by the Project, as Required by NEPA The Project involves an extensive network of roads, drilling sites, and support facilities across a large area. These activities will adversely impact a number of critical public resources such as air, water (surface and ground, quantity and quality), wildlife, recreation, visual/scenic, cultural/religious, historical, etc. Under NEPA, the agency must prepare for public review a detailed analysis of the current baseline conditions for all potentially affected resources, both at the immediate site locations and nearby. The USFS is required to “describe the environment of the areas to be affected or created by the alternatives under consideration.” 40 C.F.R. §1502.15. The establishment of the baseline conditions of the affected environment is a fundamental requirement of the NEPA process: Establishing appropriate baseline conditions is critical to any NEPA analysis. “Without establishing the baseline conditions which exist ... before [a project] begins, there is simply no way to determine what effect the [project] will have on the environment and, consequently, no way to comply with NEPA.” Half Moon Bay Fishermans’ Mktg. Ass’nv. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988). Great Basin Resource Watch, 2016 WL 7448094, *3. “[W]ithout [baseline] data, an agency cannot carefully consider information about significant environment impacts. Thus, the agency fail[s] to consider an important aspect of the problem, resulting in an arbitrary and capricious decision.” Northern Plains v. Surf. Transp. Brd., 668 F.3d 1067, 1085 (9th Cir. 2011). Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 33 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 27 Here, the EA admits that the agency did not conduct the required baseline analysis of the affected area for numerous potentially affected resources. For example, USFS acknowledges that, for groundwater, “site-specific water quality information is not readily available.” EA 3-19 (emphasis added), AR 15246. Although the EA summarizes some groundwater flow issues, no baseline information on quality is provided. The EA also admits that “the Superior Basin was not specifically evaluated.” Id. Instead of this required analysis, the EA merely mentions a 17-year old “groundwater quality study” of other basins in Arizona. Id. The lack of baseline groundwater analysis is especially troubling (and in violation of NEPA) due to the admitted adverse impacts to groundwater that may result from the project. The EA states that groundwater and surface water in the Superior Basin may be adversely affected by the Project. EA Section 3.3.3.3, AR 15248-50 (groundwater); AR 15250-51 (surface water). For example, the EA found that: The types of project activities that could affect groundwater resources include the following: • Intrusive activity (i.e. drilling) that intersects the groundwater system or is located close to existing groundwater wells or springs. • Surface-disturbing activity near existing groundwater wells and springs. • Groundwater use associated with drilling and well testing procedures. • Generation of investigation-derived waste. EA 3-21, AR 15248. The EA postpones the gathering of baseline information until after the project starts, admitting that “available data regarding baseline groundwater conditions in the project area would be supplemented by the activities in the Baseline Plan.” Response Report Table 2-67, AR 15565. Yet, as noted above, the EA admits that the agency did not gather any groundwater quality data. The fact that the Project is designed to gather baseline data for the Main Mine proposal does not satisfy the agency’s duty to obtain baseline groundwater quality data for this Project. Indeed, because the agency argues that the Baseline project is “independent” of the Main Mine Project (in order to avoid reviewing the two projects together as Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 34 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 28 “connected actions” under NEPA), it cannot rely on some future study as the means to satisfy its baseline data requirements for this Project. The EA itself details the type of groundwater data that is needed for the Main Mine, essentially admitting the types of data that would constitute an adequate baseline groundwater analysis. Response Report Table 2-67/68 (listing various types of data that would be needed to ascertain baseline conditions such as “chemical quality of groundwater” and “aquifer hydraulic properties”), AR 15565-66. None of these important attributes have been obtained for this Project. “[S]ite-specific water quality information is not readily available.” EA 3-19, AR 15246. Yet, as noted above, the fact that baseline data is “not available,” does not mean that the agency does not have a duty under NEPA to obtain such data – indeed, that is the very purpose of NEPA. The USFS’s failure to obtain baseline groundwater studies, analysis and mitigation measures in reviewing a mineral-related drilling plan under NEPA and the §228 regulations has been ruled illegal by numerous federal courts. In Idaho Conservation League v. U.S. Forest Serv., 2012 WL 3758161 (D. Idaho 2012), the court concluded that the Forest Service acted arbitrarily and capriciously by authorizing exploratory mineral drilling without fully analyzing the baseline groundwater and hydrology. Id. at *17. Such analysis should include “a baseline hydrogeologic study to examine the existing density and extent of bedrock fractures, the hydraulic conductivity of the local geologic formations, and [measures of] the local groundwater levels to estimate groundwater flow directions.” Id., at *16. See also Shoshone-Bannock Tribes of Fort Hall Reservation v. U.S. Dept. of Interior, 2011 WL 1743656, at *10 (D. Idaho 2011). A more recent federal court decision reiterated the NEPA requirement for a detailed groundwater baseline analysis in an EA. “Ninth Circuit cases acknowledge the importance of obtaining baseline condition information before assessing the environmental impacts of a proposed project.” Gifford Pinchot Task Force v. Perez, Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 35 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 29 2014 WL 3019165, *28 (D. Or. 2014)(USFS/BLM EA for mineral exploration project failed to obtain and analyze baseline water quality data in violation of NEPA). Importantly, the EA admits that there already is an extensive network of groundwater wells in the Project area alone. “There are approximately 35 registered water wells within the project area footprint. … The majority of wells have depths ranging from 50 to 150 feet below ground surface.” EA 3-19, AR 15246. A number of wells exceed 150 feet in depth. EA Figure 3-4 (EA at 3-19). The fact that there were existing wells in the project area, yet were not sampled for baseline water quality by the Forest Service, was an important factor in the court’s decision in Gifford Pinchot invalidating a USFS EA for failing to conduct a baseline analysis of ground water quality conditions. Further, the court specifically rejected the argument that mitigation and monitoring of the project to allegedly protect groundwater excuses the NEPA requirement for a full baseline analysis. 2014 WL 3019165, *25-33. The same inadequate baseline analysis is true for other potentially affected resources such as wildlife, air quality, and recreation. For example, for recreation, the EA admits that: “information is currently unavailable for the amount of [recreation] use.” EA 3-78, AR 15305. This is despite the fact that the Project will directly impact users of the Arizona Trail, which bisects the Project area. EA Figure 1-2, AR 15198. E. The EA Fails to Include an Adequate Mitigation Plan, Including a Detailed Review of the Effectiveness of Mitigation Measures Under NEPA, the agency must have an adequate mitigation plan to minimize or eliminate all potential project impacts. NEPA requires the agency to: (1) “include appropriate mitigation measures not already included in the proposed action or alternatives,” 40 C.F.R. §1502.14(f); and (2) “include discussions of: . . . Means to mitigate adverse environmental impacts (if not already covered under 1502.14(f)).” 40 C.F.R. §1502.16(h). NEPA regulations define “mitigation” as a way to avoid, minimize, rectify, or compensate for the impact of a potentially harmful action. 40 C.F.R. §§1508.20(a)-(e). “[O]mission of a reasonably complete discussion of possible Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 36 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 30 mitigation measures would undermine the ‘action-forcing’ function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989). NEPA requires that the agency discuss mitigation measures, with “sufficient detail to ensure that environmental consequences have been fairly evaluated.” Id. at 352. “An essential component of a reasonably complete mitigation discussion is an assessment of whether the proposed mitigation measures can be effective. … A mitigation discussion without at least some evaluation of effectiveness is useless in making that determination.” South Fork Band Council v. Dept. of Interior, 588 F.3d 718, 727 (9th Cir. 2009)(citations omitted)(EIS for mining project failed to conduct adequate review of mitigation and mitigation effectiveness). An EA violates NEPA if it “fails to address the effectiveness of the mitigation measures.” Gifford Pinchot Task Force v. Perez, 2014 WL 3019165, *39 (D. Or. 2014). Here, the EA provides only a cursory mention that all of the mitigation measures will be effective. Yet no supporting analysis is provided to back up this claim. It is impossible for the USFS to contend that it fully reviewed the effectiveness of mitigation measures when the EA lacks any reference to such analysis. Simply referring to the list of mitigation measures, as the EA does, does not comply with NEPA. The agency relies on these purported mitigation measures to meet its responsibilities under the Organic Act and Part 228 regulations to “minimize adverse impacts” and comply with all environmental laws (such as Clean Air Act standards). For example, the EA states that one of the required mitigation environmental protection measures would be to “avoid disturbance of stream channels to minimize effects on riparian vegetation (U.S. Forest Service, 1985 [Tonto Forest Plan].” EA 3-11, AR 15238. Yet the EA does not “avoid disturbance of stream channels.” The project proposes numerous drill sites, trench sites, roads, and other project activities/facilities within intermittent or perennial stream channels. See EA Figure 3-3, AR 15244. Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 37 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 31 Another potentially serious issue regards the intended use of these lands by Resolution for tailings dumps, especially the immediate areas of the drill holes created by the Project. The EA does not provide assurance that the drill holes excavated from areas where the tailings storage facility is proposed will be sealed in a manner capable of preventing these holes/wells becoming conduits for leakage/seepage of contaminants from the hundreds of millions of tons of tailings dumped on top of the new drill holes. The USFS relies solely on Arizona’s generalized well/drill closure requirements, with no review of the potential impacts of this leakage/seepage. Rather, the agency states that the issue is “outside the scope of analysis of the preliminary EA.” Response Report Table 2-2, AR 15500. Also, as detailed above, there is no analysis of mitigation for Ozone emissions, as the EA never calculated the direct emissions, let alone the cumulative emissions of the Project when added to the other current and reasonably foreseeable projects in the area. The agency cannot authorize a potential adverse impact on public lands without any analysis of its impacts, mitigation measures, or substantive controls. Simply saying that the future deposition of tailings on these sites is “outside the scope of analysis” when the agency is currently reviewing Resolution’s proposal to put tailings in these very areas not only violates NEPA, but defies common sense. F. Without the Required Analysis, the Finding of No Significant Impact (FONSI), and Decision Not to Prepare an EIS, Lacks Support in the Record The Project poses potentially significant risks to ground and surface waters, air quality, wildlife and wildlife habitat, cultural/historical, air quality, recreation, and other resources. Without the required baseline and cumulative impacts analysis, it is impossible to fully ascertain the level of threats to these public resources. Because of the potentially significant impacts, coupled with the lack of required analysis under NEPA, the FONSI and decision not to prepare an EIS cannot stand. An EIS “must be prepared if substantial questions are raised as to whether a project may cause significant degradation of some human environmental factor.” Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 38 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 32 Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 562 (9th Cir. 2006). “[A] plaintiff need not show that significant effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared.” Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir.1998) (emphasis in original). “This is a low standard.” Klamath Siskiyou, 468 F.3d at 562. See also Te-Moak Tribe, 608 F.3d at 602 (“NEPA requires that where several actions have a cumulative . . . environmental effect, this consequence must be considered in an EIS.”). Additionally, as noted above, due to the agency’s decision not to analyze all cumulative impacts or connected actions, the agency’s decision to not prepare an EIS (i.e., issue a FONSI) violates NEPA, as the lack of an adequate connected action/cumulative actions/impacts analysis necessarily renders any FONSI inadequate and arbitrary and capricious. “An agency cannot avoid its statutory responsibilities under NEPA merely by asserting that an activity it wishes to pursue will have an insignificant effect on the environment.” Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986). “The agency must supply a convincing statement of reasons why potential effects are insignificant.” The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir.1985). In determining whether a proposed project may result in significant impacts, the agency must analyze ten criteria listed in 40 C.F.R. §1508.27(b), including: (1) “The degree to which the proposed action affects public health or safety.” 40 C.F.R. §1508.27(b)(2); (2) “Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot he avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. §1508.27(b)(7); and (3) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.” 40 C.F.R. §1508.27(b)(l0). Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 39 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 33 “If any ‘significant’ environmental impacts might result from the proposed agency action then an EIS must be prepared before agency action is taken.” Grand Canyon Trust v. F.A.A., 290 F.3d 339, 340 (D.C. Cir. 2002), citing Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (emphases in original). “We have held that one of these factors may be sufficient to require preparation of an EIS in appropriate circumstances. See Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001).” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2005). The DN/FONSI found that none of the conditions listed in 40 C.F.R. §1508.27(b) were present in this case. DN/FONSI 12-14, AR 17557-59. As detailed herein, the record in this case does not support this finding, as at least three “significance criteria” exist here. First, as shown above, the agency failed to adequately analyze the direct, indirect, and cumulative impacts to air quality, especially Ozone, and has not shown that the Ozone NAAQS will be met. The projected NOx and VOC emissions from the Project, along with (unanalyzed) emissions from other activities in the cumulative effects study area, “threaten” to cause Ozone levels/emissions to exceed the NAAQS when the area already has exceeded, or been extremely close to exceedence, every reported year since 2008. EA Table 3-12 (EA 3-92), AR 15319. Thus “the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.” 40 C.F.R. §1508.27 (b)(10). Second, the likelihood of the new Ozone standard being violated “affects public health or safety.” 40 C.F.R. §1508.27(b)(2). Third, the agency’s failure to fully review all direct, indirect, and cumulative impacts, and connected and cumulative actions, necessarily renders the EA deficient, and the FONSI inadequate, as “the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. §1508.27(b)(7). Overall, the deficient EA renders the DN/FONSI inadequate. “[I]f the EA is deficient under NEPA in one of the ways Plaintiff has previously argued, then the Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 40 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 34 [agency’s] DN/FONSI is necessarily arbitrary and capricious because it relied on the 2012 EA.” Gifford Pinchot, 2014 WL 3019165, *40. This follows a line of well- established Ninth Circuit precedent. See Native Ecosystems Council v. Tidwell, 599 F.3d 926, 937 (9th Cir. 2010) (USFS violated NEPA in issuing FONSI based on inadequate analysis); Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1223-24 (9th Cir. 2008) (When an EA fails to comply with NEPA requirements, it “do[es] not constitute a ‘hard look’ at the environmental consequences of the action as required by NEPA. Thus, the FONSI is arbitrary and capricious.”). G. The Forest Service Failed to Minimize All Adverse Impacts and Ensure that the Project Complies with All Environmental Standards On the National Forests, the Organic Act requires the USFS “to regulate their occupancy and use and to preserve the forests thereon from destruction.” 16 U.S.C. § 551. “[P]ersons entering the national forests for the purpose of exploiting mineral resources must comply with the rules and regulations covering such national forests.” Clouser v. Espy, 42 F.3d 1522, 1529 (9th Cir. 1994). USFS mining regulations require that “all [mining] operations shall be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest resources.” 36 C.F.R. §228.8. In addition, the operator must fully describe “measures to be taken to meet the requirements for environmental protection in §228.8.” 36 C.F.R. §228.4(c)(3). “Although the Forest Service cannot categorically deny a reasonable plan of operations, it can reject an unreasonable plan and prohibit mining activity until it has evaluated the plan and imposed mitigation measures.” Siskiyou Regional Education Project v. Rose, 87 F. Supp. 2d 1074, 1086 (D. Or. 1999), citing Baker v. U.S. Dept. of Agriculture, 928 F.Supp. 1513, 1518 (D. Idaho 1996). “Under the Organic Act the Forest Service must minimize adverse environmental impacts where feasible and must require [the operator] to take all practicable measures to maintain and protect fisheries and wildlife habitat.” Rock Creek Alliance v. Forest Service, 703 F.Supp.2d 1152, 1170 (D. Montana 2010). Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 41 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Motion for Summary Judgment 35 As shown above, the agency proposes no mitigation or minimization to eliminate the likelihood that the Ozone NAAQS will be exceeded by the emissions from the Project, alone and in combination with the emissions from the other current and reasonably foreseeable future projects. Under its mining regulations, the USFS must ensure that each “Operator shall comply with applicable Federal and state air quality standards, including the requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.).” 36 C.F.R. §228.8 (a). The fact that the EA did not analyze these emissions only highlights the failure to minimize their impacts and ensure compliance with the standards. V. CONCLUSION Accordingly, this Court should grant Plaintiffs’ motion, and set aside, vacate, and remand the illegal EA and DN/FONSI. Respectfully submitted, /s/ Roger Flynn February 3, 2017 Roger Flynn, pro hac vice Jeffrey C. Parsons, pro hac vice Western Mining Action Project P.O. Box 349 440 Main St., #2 Lyons, CO 80540 Tel: 303-823-5738; Fax: 303-823-5732 wmap@igc.org Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on February 3, 2017, I electronically transmitted the foregoing and all exhibits to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants. /s/ Roger Flynn Case 2:16-cv-03115-DGC Document 38 Filed 02/03/17 Page 42 of 42 EXHIBIT 1 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 1 of 27 1 Roger Flynn (CO Bar # 21078) (Pro Hac Vice) Jeffrey C. Parsons (CO Bar #30210) (Pro Hac Vice) WESTERN MINING ACTION PROJECT P.O. Box 349 440 Main Street, #2 Lyons, CO 80540 Email: wmap@igc.org Phone: (303) 823-5738 Fax: (303) 823-5732 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION CONCERNED CITIZENS AND RETIRED MINERS COALITION; ARIZONA MINING REFORM COALITION; EARTHWORKS; MARICOPA AUDUBON SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; and GRAND CANYON CHAPTER OF THE SIERRA CLUB, Plaintiffs vs. UNITED STATES FOREST SERVICE, an agency in the U.S. Department of Agriculture; NEIL BOSWORTH, Supervisor of the Tonto National Forest; and JIM UPCHURCH, Objection Deciding Officer and Deputy Regional Forester, Defendants. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03115-DGC DECLARATION OF ROY CHAVEZ I, Roy Chavez, make this declaration based upon my personal knowledge and belief and state: 1. I am a third-generation resident of Superior, Arizona. I am 63 years old and competent to testify. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 2 of 27 2 2. I am a member of the Concerned Citizens and Retired Miners Coalition, and EARTHWORKS, plaintiffs in this case. 3. The Concerned Citizens and Retired Miners Coalition (“CCRMC”) is a non-profit group of citizens who: (a) reside in Superior, Arizona, or do not reside in Superior, Arizona, but are affiliated with relatives who are residents; (b) are retired hard- rock miners who previously worked in the now non-operational mine in Superior, Arizona, and were displaced due to mine closure or personal disability; or (c) are individuals who are concerned that important U.S. public land will be allocated to a foreign mining company for private use, as has been approved by the U.S. Forest Service in this case. 4. EARTHWORKS is a non-profit, non-partisan environmental organization dedicated to protecting communities and the environment from the adverse impacts of mineral development. EARTHWORKS endeavors to protect communities and the environment from the impacts of destructive mining, digging, and drilling. It provides support to citizens across the country and around the world. 5. CCRMC and Earthworks, along with the other plaintiff groups, submitted detailed comments to the Tonto National Forest on the Resolution Copper Mining Baseline Hydrological and Geotechnical Data Gathering Activities Plan (“Baseline Plan” or “Project”), approved by the Forest Service, as well as lengthy Objections to the Draft Decision and Final Environmental Assessment, which were essentially rejected by the Regional Office of the Forest Service. 6. I operated a local business (and planning to do so again) in the Town Center of Superior for almost 30 years. 7. I have also served the community of Superior (combined over 25 years), as Councilmember, 3-term Mayor and most recently Town Manager. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 3 of 27 3 8. I have worked (off and on) for several different mining companies (surface and underground) in the region, including: Hecla Mining (1973), Kennecott Copper Company (1973-1977) and Magma/BHP (1994-1996, through closeout). 9. The site of the Project has historically (during my lifetime and before--based on information provided by my father and other local residents), been utilized by the public for hunting, four-wheeling, trail-biking, camping, picnicking, hiking, horseback riding and other outdoor activities. 10. As a youth, I experienced over-night camp-outs with fellow Boy Scouts, as well as outings with family and friends over the years. I have hunted throughout the Project area. I learned to drive a vehicle on the roadways and Forest Service trails within the Project area. I often travel through the Project site between Potts Canyon and Robles Canyon, connecting the community of Queen Valley with the ghost town of Silver King. 11. I have visited the Project site a number of times within the last year, and in previous years. During those visits, I enjoy the wide-open spaces, peace and quiet of the desert, and wildlife that I view and experience. I also bring other people from Superior and the surrounding areas to the site to enjoy these uses and educate them about the destructive nature of the Project and its significant and irreparable impacts to these public lands. 12. All of these uses and my enjoyment of the Project site will be immediately, significantly, adversely, and irreparably injured by the Project as approved by the Forest Service. My recreational and conservation interests and uses of the public lands within the Project area are totally incompatible with the drilling, heavy Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 4 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 5 of 27 EXHIBIT 2 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 6 of 27 1 Roger Flynn (CO Bar # 21078) (Pro Hac Vice) Jeffrey C. Parsons (CO Bar #30210) (Pro Hac Vice) WESTERN MINING ACTION PROJECT P.O. Box 349 440 Main Street, #2 Lyons, CO 80540 Email: wmap@igc.org Phone: (303) 823-5738 Fax: (303) 823-5732 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION CONCERNED CITIZENS AND RETIRED MINERS COALITION; ARIZONA MINING REFORM COALITION; EARTHWORKS; MARICOPA AUDUBON SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; and GRAND CANYON CHAPTER OF THE SIERRA CLUB, Plaintiffs vs. UNITED STATES FOREST SERVICE, an agency in the U.S. Department of Agriculture; NEIL BOSWORTH, Supervisor of the Tonto National Forest; and JIM UPCHURCH, Objection Deciding Officer and Deputy Regional Forester, Defendants. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03115-DGC DECLARATION OF MARK LARSON I, Mark Larson, make this declaration based upon my personal knowledge and belief and state: 1. I am a resident of Scottsdale, Arizona. I am 62 years old and competent to testify. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 7 of 27 2 2. I am a member of the Maricopa Audubon Society (MAS), plaintiff in this case. Since May of 2010 I have served as President of the Maricopa Audubon Society. For over 30 years, I have been an environmental planning consultant, mostly in Arizona. 3. The Maricopa Audubon Society is an organization of volunteers dedicated to the enjoyment of birds and other wildlife with a primary focus on the protection and restoration of the habitat of the Southwest through fellowship, education, and community involvement. Its members use the Project area that would be affected for bird-watching, hiking and other activities. Maricopa Audubon Society members regularly volunteer at the nearby Boyce Thompson Arboretum and participate in the Superior Christmas Bird Count, an annual event focusing on the observation of bird species in and around the Superior area, including the lands in the Baseline Plan project area. 4. I have a strong connection to the project area in this case. For at least three years I was in charge of that sector of the Superior Christmas Bird Count, so I have spent many hours and walked many miles in and around the site of the Baseline Plan. In addition, I have participated in two in-depth tours of the site over the past two spring seasons. These two tours included driving many of its rugged four-wheel drive back roads on and off the official Forest Service roads as well as hiking into some roadless areas. 5. These spring trips reinforced in my mind the sense that this part of the Tonto National Forest is not only one of the finest examples of Upper Sonoran Desert Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 8 of 27 3 habitat of exceptional beauty and variety, but that its value as a key migration corridor for small land birds is incalculable. 6. On last spring's trip, for example, we found canyons with pockets of valuable riparian habitat that were being used my large numbers of migrating Neotropical birds. We also found some rivulets and small pools of clear water that help to make this an exceptional stopover location for these migrants. 7. On one such trip, on March 31, 2015, we found nesting Zone-tailed Hawks and an abundance of annual wildflowers in an assortment of species of which I have seldom encountered in over 30 years of experience in this desert! 8. In addition to these bird-watching and scientific visits, I visit the area to hike and enjoy the peace and quiet of the area, along with the birds and wildlife in their natural habitat. 9. In short, I and other members of the MAS believe that this area deserves the full protection of procedures and substantive requirements federal law, requirements that the Forest Service did not follow in issuing the challenged Final EA and Decision Notice and Finding of No Significant Impact. 10. MAS submitted detailed comments to the Forest Service on the Baseline Plan Project, as well as a formal Objection to the Regional Office. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 9 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 10 of 27 EXHIBIT 3 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 11 of 27 1 Roger Flynn (CO Bar # 21078) (Pro Hac Vice) Jeffrey C. Parsons (CO Bar #30210) (Pro Hac Vice) WESTERN MINING ACTION PROJECT P.O. Box 349 440 Main Street, #2 Lyons, CO 80540 Email: wmap@igc.org Phone: (303) 823-5738 Fax: (303) 823-5732 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION CONCERNED CITIZENS AND RETIRED MINERS COALITION; ARIZONA MINING REFORM COALITION; EARTHWORKS; MARICOPA AUDUBON SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; and GRAND CANYON CHAPTER OF THE SIERRA CLUB, Plaintiffs vs. UNITED STATES FOREST SERVICE, an agency in the U.S. Department of Agriculture; NEIL BOSWORTH, Supervisor of the Tonto National Forest; and JIM UPCHURCH, Objection Deciding Officer and Deputy Regional Forester, Defendants. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03115-DGC DECLARATION OF ROGER FEATHERSTONE I, Roger Featherstone, make this declaration based upon my personal knowledge and belief and state: 1. I reside in Tucson, Arizona. I am 61 years old and competent to testify. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 12 of 27 2 2. I am the Director and a member of the Arizona Mining Reform Coalition (AMRC) and a member of the Concerned Citizens and Retired Miners Coalition, and EARTHWORKS, plaintiffs in this case. 3. The Arizona Mining Reform Coalition is comprised of Arizona groups and individuals that work to ensure that responsible mining contributes to healthy communities, a healthy environment, and, when all costs are factored in, is a net benefit to Arizona. The Arizona Mining Reform Coalition expects the mining industry to clean up after itself, comply fully with the spirit of safeguards in place to protect Arizona, and to interact in a transparent and open manner with Arizona citizens. AMRC, and myself, was a lead organizer for the extensive comments and Objections submitted throughout the Forest Service’s review of this project. 4. I use and enjoy the public lands at and near the Resolution Copper Baseline Plan Project, the Forest Service’s approval of which is the subject of this case. 5. I have visited the lands at and immediately adjacent to the Project site many times in the last few years. During these visits, I hike, sightsee, watch wildlife, view historic and archeological sites, enjoy the solitude and views, and otherwise use and enjoy the public lands in these areas. 6. These uses will be harmed if the Project is allowed to proceed. The Project will cause significant impacts to the environment, solitude, and unspoiled resources of the public lands that I use and value. 7. The Project’s drill rig instillation, drilling, construction, road construction/reconstruction, noise and light pollution, truck traffic, and other Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 13 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 14 of 27 EXHIBIT 4 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 15 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 16 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 17 of 27 EXHIBIT 5 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 18 of 27 1 Roger Flynn (CO Bar # 21078) (Pro Hac Vice) Jeffrey C. Parsons (CO Bar #30210) (Pro Hac Vice) WESTERN MINING ACTION PROJECT P.O. Box 349 440 Main Street, #2 Lyons, CO 80540 Email: wmap@igc.org Phone: (303) 823-5738 Fax: (303) 823-5732 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION CONCERNED CITIZENS AND RETIRED MINERS COALITION; ARIZONA MINING REFORM COALITION; EARTHWORKS; MARICOPA AUDUBON SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; and GRAND CANYON CHAPTER OF THE SIERRA CLUB, Plaintiffs vs. UNITED STATES FOREST SERVICE, an agency in the U.S. Department of Agriculture; NEIL BOSWORTH, Supervisor of the Tonto National Forest; and JIM UPCHURCH, Objection Deciding Officer and Deputy Regional Forester, Defendants. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03115-DGC DECLARATION OF RANDALL W. SERRAGLIO I, Randall W. Serraglio, make this declaration based upon my personal knowledge and belief and state: 1. I am a resident of Tucson, Arizona. I am over 18 years old and competent to testify. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 19 of 27 2 2. I am a member of the Center for Biological Diversity (The Center), plaintiff in this case. 3. The Center for Biological Diversity is a non-profit public interest organization with an office located in Tucson, Arizona, representing more than 1 million members and supporters nationwide dedicated to the conservation and recovery of threatened and endangered species and their habitats. The Center has long- standing interest in projects of ecological significance undertaken in the National Forests of the Southwest, including mining projects. 4. The Center, and myself, have a long-standing interest in protecting the public lands and wildlife habitat that will be significantly and adversely impacted by Resolution Copper Co.’s Baseline Plan Project as reviewed and approved by the challenged actions of the Forest Service in this case. The Center submitted detailed scoping comments and comment on the Draft EA to the Forest Service in this case, as well as an administrative Objection which was rejected by the Regional Office. 5. I have hiked and recreated in the area of the proposed Resolution Mine tailings location – the Baseline Plan project area – a number of times over the past 26 years that I've lived in Arizona. I love it because it is a beautiful, rugged area with many scenic vistas and a diversity of wildlife. Just a few months ago, I took a spectacular drive with some friends along Forest Road 650, which provides stunning views of the project area. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 20 of 27 3 6. The scenic value of that popular recreational road, and my ability to continue to use the area, will be dramatically compromised forever by this project. 7. I've hiked on the Arizona Trail and other trails in the area. It is very disturbing that a portion of the Arizona Trail would be destroyed by this project. The Arizona Trail is a source of great pride as one of the hallmarks of Arizona's natural heritage and beauty. The thought of this area being visually marred and parts of it being utterly destroyed by this proposal is profoundly discouraging. 8. I am an avid volunteer who has done a lot of field work in Arizona. Last Fall I i joined a trip to look at springs in the project area, including several that lie within the footprint of the proposed tailings. These springs are critically important sources of water, shelter, and habitat for a vast array of wild plants and animals, which I enjoy viewing in their natural state. The potential destruction of these places by this proposal is alarming and very disconcerting. 9. Myself, the Center, and its members will be harmed if the project is allowed to continue as approved by the Forest Service. I will not be able to continue to use this area, as I have and as I intend to do, if the project proceeds. 10. I am very familiar with the requirements of NEPA, having participated in dozens of agency reviews of projects on public land. The Forest Service’s cursory review of the project’s impacts, especially the cumulative impacts from other nearby projects to wildlife, water, and air quality, and the failure to adequately involve the public, has harmed my and the Center’s rights to fully participate in the NEPA process. The Center and myself, along with its other members, have been Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 21 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 22 of 27 EXHIBIT 6 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 23 of 27 1 Roger Flynn (CO Bar # 21078) (Pro Hac Vice) Jeffrey C. Parsons (CO Bar #30210) (Pro Hac Vice) WESTERN MINING ACTION PROJECT P.O. Box 349 440 Main Street, #2 Lyons, CO 80540 Email: wmap@igc.org Phone: (303) 823-5738 Fax: (303) 823-5732 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION CONCERNED CITIZENS AND RETIRED MINERS COALITION; ARIZONA MINING REFORM COALITION; EARTHWORKS; MARICOPA AUDUBON SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; and GRAND CANYON CHAPTER OF THE SIERRA CLUB, Plaintiffs vs. UNITED STATES FOREST SERVICE, an agency in the U.S. Department of Agriculture; NEIL BOSWORTH, Supervisor of the Tonto National Forest; and JIM UPCHURCH, Objection Deciding Officer and Deputy Regional Forester, Defendants. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03115-DGC DECLARATION OF JAMES R. VAALER I, James R. Vaaler, make this declaration based upon my personal knowledge and belief and state: 1. I am a resident of Phoenix, Arizona. I am 67 years old and competent to testify. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 24 of 27 2 2. I am a member of the Sierra Club, Grand Canyon Chapter (Sierra Club), plaintiff in this case. 3. The Sierra Club is one of the nation’s oldest and most influential grassroots organizations whose mission is “to explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earth’s ecosystems and resources; and to educate and enlist humanity to protect and restore the quality of the natural and human environments.” Sierra Club has more than 2.4 million members and supporters with 35,000 in Arizona as part of the Grand Canyon (Arizona) Chapter. Its members have long been committed to protecting and enjoying the Tonto National Forest. The Sierra Club fully participated in the Forest Service’s administrative review of the project, submitting comments at the scoping and Draft EA stages, as well as joining the other plaintiffs in our Objection to the Regional Forester’s office. The agency’s failure to fully comply with NEPA has severely restricted our ability to exercise our public participation rights under NEPA. 4. As a Sierra Club member and hike leader, I have often visited or traveled through the area of the proposed Baseline Plan project and have several times used Forest Service roads to access that area and the southwestern part of the Superstition Wilderness. I am familiar with the Forest Service Environmental Assessment concerning a baseline study for the proposed tailings area and know the tailings area location on the Tonto National Forest. Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 25 of 27 3 5. I have traveled the Hewitt Canyon Road (FR 172) on the west side of the proposed tailings area on the way to Rogers Trough and Woodbury Trailhead and the Angel Basin area. I have also driven the Whitford Canyon Road (FR 650) on the east side of the tailings area toward the Superstition Wilderness. 6. In recent months, I have visited the project site area using FR 272 and other roads, including a very nice riparian area called Benson Spring. Benson Spring is located at what would be a catchment basin at the toe of the 500 foot tailings dam, and has permanent water, numerous desert willow trees, frogs, and deer. It has been fenced off so as to preclude cattle grazing, and is a place our Game and Fish Commission, Bow Hunters Association, and a long list of individuals who worked on the fencing project took great pride in. This spring site is used by the recreating general public for picnics, short hikes, and hunting. Numerous grinding holes were noted, indicating that this area was also used by the prehistoric Hohokam culture for food gathering and preparation. 7. The tailings storage area in general contains lush upper Sonoran Desert vegetation, considerable wildlife and great almost 360 degree views of surrounding mountains, especially as one goes to the north side of the project and gains in elevation. Mountains clearly visible include La Barge and Iron Mountain in the Superstition Wilderness to the north, Fortuna Peak to the east and Pickett Post in the south. 8. I intend to be able to continue to visit this site in the future, including later this year and next year. My recreational uses of the project site and nearby affected Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 26 of 27 Case 2:16-cv-03115-DGC Document 38-1 Filed 02/03/17 Page 27 of 27 EXHIBIT 7 To: Plaintiffs’ Motion for Summary Judgment CV-16-3115-PHX-DGC Concerned Citizens, et al. v. U.S. Forest Service et al. Case 2:16-cv-03115-DGC Document 38-2 Filed 02/03/17 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Defenders of Wildlife, et al., Plaintiffs, v. United States Forest Service, et al., Defendants. No. CV-14-02446-TUC-RM ORDER Pending before the Court are the parties’ cross-motions for summary judgment. For the reasons that follow, summary judgment will be granted in favor of Plaintiffs. I. Factual Background In 2011, Regal Resources USA, Inc. submitted a Plan of Operations to explore seven of its mineral claims in the Humboldt Canyon area of the Patagonia Mountains, within the Coronado National Forest. (SP000575-76; SP001953.)1 The proposed project, known as the Sunnyside Project, will involve six temporary drill sites to assess copper mineralization. (SP001949; SP002010; SP002041.) A Biological Assessment (“BA”) prepared in May 2014 concluded that the project was not likely to adversely affect species listed under the Endangered Species Act (“ESA”), and the United States Fish and Wildlife Service (“USFWS”) issued a letter of concurrence on August 11, 2014. (See SP001656; SP001658; SP001662; SP001664; SP001666; SP001794-1802.) On September 12, 2014, the United States Forest Service (“USFS”) issued a Decision 1 All record citations are to the bates-numbered administrative record. Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 1 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 2 of 18 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum authorizing the Sunnyside Project. (SP001810-1823.)2 On October 29, 2014, Plaintiffs Defenders of Wildlife and Patagonia Area Resource Alliance filed a Complaint (Doc. 1) against USFS and USFWS, challenging the agencies’ approval of the Sunnyside Project and alleging violations of the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act (“APA”), and the ESA. On December 6, 2014, due to the recent listing of the yellow-billed cuckoo and due to new information regarding the project’s potential effects on ESA-listed species, USFWS re-initiated consultation with USFS under Section 7 of the ESA. A revised BA was created to address the listing of the yellow-billed cuckoo and to reflect updated project information. (SP001947-2003.) The revised BA found that the Sunnyside Project may affect, but is not likely to adversely affect, the jaguar, the lesser long-nosed bat, the Mexican spotted owl, the ocelot, and the yellow-billed cuckoo; that it may affect, but is not likely to adversely affect, jaguar critical habitat; and that it will not affect Mexican spotted owl critical habitat. (SP001959; SP001961; SP001966-67; SP001969.) On April 2, 2015, USFWS issued a revised letter of concurrence, agreeing with the revised BA’s determination that the project is not likely to adversely affect ESA- listed species or critical habitat. (SP002009-2030.) On April 8, 2015, USFS issued a revised Decision Memorandum authorizing the project. (SP002041-2055.) On May 27, 2015, Plaintiffs filed a Supplemental and Amended Complaint (Doc. 28), listing only USFS as a defendant and alleging violations of NEPA and the APA.3 Plaintiffs seek a declaratory judgment that USFS violated NEPA and the APA in approving the Sunnyside Project, as well as an order vacating and setting aside USFS’s revised Decision Memorandum authorizing the Project. (Doc. 28 at ¶ 12.) The Sunnyside Project will involve road maintenance, drill site preparation, 2 The USFS published an initial Decision Memorandum approving the project on August 25, 2014. It published a second Decision Memorandum approving the project on September 12, 2014. (Doc. 28 at ¶¶ 59-60.) 3 Plaintiffs are no longer asserting any claims against USFWS and are no longer alleging violations of the ESA. Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 2 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 3 of 18 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 drilling, and reclamation. A sump will be excavated and used at each drill site to collect used drilling fluids. (SP002011; SP002042; SP001950.) Drilling operations may run continuously up to 24 hours per day, 7 days per week. (SP002010; SP002042; SP001949.) Lights will be used during nighttime operations. (SP002010.) Up to two drill rigs at a time may be used, and up to two holes may be open at a time. (SP002011; SP002042; SP001950.) Up to 12,500 gallons of water per day will be used for drilling. (SP002011; SP002042; SP001950.) Equipment that will be utilized for the project typically produces noise levels as high as 98 dBA at 50 feet from the source. (SP001965.) Reclamation will occur in two phases. (SP002012; SP002042; SP001950.) The first phase will be ongoing and concurrent with operations, and will involve removing supplies and non-native materials in addition to sealing drill holes. (SP002012; SP002042; SP001950.) The second, final phase of reclamation will involve removing all equipment and materials and restoring disturbed areas. (SP002012; SP002043; SP001950.) Sumps will be allowed to dry before final reclamation. (SP002012; SP001950.) USFS will monitor and assess the progress of reclamation for three years; depending upon the success of reclamation, additional seeding, weed treatment, or installation of erosion control structures may be required. (SP002012; SP002043; SP001950.) II. Standard of Review The parties agree that summary judgment is appropriate for resolving a challenge to a federal agency’s administrative decision when review is based on an administrative record. See, e.g., Southwest Ctr. for Biological Diversity v. Babbitt, 980 F. Supp. 1080, 1083 (D. Ariz. 1997). A motion for summary judgment should be granted when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Judicial review of agency actions under NEPA is governed by the Administrative Procedure Act (“APA”). California v. Norton, 311 F.3d 1162, 1170 (9th Cir. 2002); see Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 3 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 4 of 18 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 also 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). Pursuant to the APA, “agency decisions shall be set aside if ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Norton, 311 F.3d at 1170 (quoting 5 U.S.C. § 706(2)(A)). This standard of review requires courts “to ensure that an agency has taken the requisite hard look at the environmental consequences of its proposed action, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors.” Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992) (internal quotation omitted). An agency’s decision is 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 explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). III. Analysis4 In categorically excluding the Sunnyside Project from detailed environmental analysis under NEPA, USFS concluded that the Project would take less than one year to complete and that no extraordinary circumstances, such as impacts to threatened or endangered species or cumulative impacts from other projects, precluded use of a categorical exclusion. (Doc. 28 at ¶ 8.) Plaintiffs contend that USFS should have performed an Environmental Assessment (“EA”) under NEPA to determine the project’s anticipated effects on the environment, instead of categorically excluding the project from detailed NEPA analysis. Plaintiffs argue that use of a categorical exclusion to 4 There is no dispute that Plaintiffs have constitutional standing in this case. There is also no dispute that this Court has federal-question jurisdiction under 28 U.S.C. § 1331. Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 4 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 5 of 18 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approve the Sunnyside Project was arbitrary and unsupported by the record because (1) the project cannot be completed in one year or less and thus does not qualify for categorical exclusion as a short-term mineral exploration project; (2) extraordinary circumstances precluding the use of a categorical exclusion exist because the project may negatively affect listed species; and (3) USFS failed to properly evaluate the cumulative impacts of the project before determining that use of a categorical exclusion was permissible. A. Statutory Framework Under NEPA, federal agencies must prepare a detailed written statement known as an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11. Under certain circumstances, an agency must prepare an environmental assessment (“EA”) to determine whether preparation of an EIS is necessary. 40 C.F.R. § 1501.4(a)-(c). Certain proposed actions are considered “categorically excluded” from NEPA and do not require preparation of an EIS or an EA. Id. § 1508.4. “Categorical exclusions, by definition, are limited to situations where there is an insignificant or minor effect on the environment.” Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999). “Short-term (1 year or less) mineral, energy, or geophysical investigations and their incidental support activities” are generally appropriate for categorical exclusion unless “extraordinary circumstances related to the proposed action” exist. 36 C.F.R. § 220.6(a), (e)(8). “Extraordinary circumstances are those circumstances ‘in which a normally excluded action may have significant environmental effect.’” Alaska Ctr. for Env’t, 189 F.3d at 858 (quoting 40 C.F.R. § 1508.4). Determining whether a proposed action has “significant” effects requires considering the context and intensity of the proposed action. See 40 C.F.R. § 1508.27. For site-specific actions, significance typically depends upon the action’s short- and long-term effects in the locale. Id. § 1508.27(a). In evaluating the intensity (i.e., severity of impact) of a proposed action, Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 5 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 6 of 18 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agencies should consider a variety of factors, including, in relevant part: “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts,” and the “degree to which the action may adversely affect an endangered or threatened species” or its critical habitat. Id. § 1508.27(b)(7), (b)(9). “The mere presence” of listed species or designated critical habitat “does not preclude the use of a categorical exclusion”; rather, the propriety of using a categorical exclusion depends upon “the degree of the potential effect” on such species or habitat. 36 C.F.R. § 220.6(b)(1)(i), (b)(2). “Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. § 1508.27(b)(7). “Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS.” 36 C.F.R. § 220.4(e)(1). “The scoping process is used to ‘determine the scope of the issues to be addressed and for identifying the significant issues related to a proposed action.’” Alaska Ctr. for Env’t, 189 F.3d at 858 (quoting 40 C.F.R. § 1501.7). If, based on scoping, the responsible official determines that “it is uncertain whether [a] proposed action may have a significant effect on the environment,” an EA should be prepared. 36 C.F.R. § 220.6(c). If, based on scoping, the responsible official determines “that the proposed action may have a significant environmental effect,” an EIS should be prepared. Id. “When an agency decides to proceed with an action in the absence of an EA or EIS, the agency must adequately explain its decision.” Alaska Ctr. for Env’t, 189 F.3d at 859. If the agency asserts that an activity will have an insignificant effect on the environment, the agency “‘must supply a convincing statement of reasons why potential effects are insignificant.’” Id. (quoting The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985)). B. Time-Frame of Project In approving the Sunnyside Project, the USFS used the categorical exclusion for short-term (one year or less) mineral investigations pursuant to 36 C.F.R. § 220.6(e)(8). Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 6 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 7 of 18 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs argue that USFS’s use of the categorical exclusion for short-term mineral investigations was arbitrary and capricious because the record establishes that the Sunnyside Project cannot be completed within one year. The Court agrees. Though USFS’s revised Decision Memorandum states that all authorized ground-disturbing activities, including reclamation activities, shall be completed within one year (SP002043), the record does not support USFS’s conclusion that completion of authorized project activities within one year will be possible. To minimize impacts to the Mexican spotted owl and the yellow-billed cuckoo during the species’ breeding seasons, there will be a lengthy non-operational period in which project activities must cease. Initially, the non-operational period was anticipated to last from March 1 to August 31, with a six-month window, from September 1 to February 28, during which project activities would occur. (SP000820; SP000837; SP001650, SP001662; SP001795; SP001818.) After the listing of the yellow-billed cuckoo as endangered, the non-operational period was extended through September 30, shortening the project’s operating window from six to five months, from October 1 to February 28. (See SP001947; SP002047.) Given the project’s limited five-month operating window, all authorized activities must be completed within five months in order for the project to be completed in one year or less. The record indicates that drilling activities alone will take approximately six months to complete. (See SP002017 (“activities are anticipated to require approximately two months per drill site (for a total of three bouts of drilling), with several more days for site closure activities (backfilling and sealing of holes, demobilization, etc.)”); SP002024 (“the proposed action will occur 24 hours per day for 2 months at paired drill sites. Three bouts of drilling will thus be required to complete activities at all 6 sites. Additional time will be required for site closure activities.”); SP001873 (a “maximum of two months will be spent drilling each hole, and several more days will be required to plug each drill hole and mobilize into and out of each site.”).) Before drilling can begin, road maintenance and drill site preparation activities must occur. After drilling is completed, reclamation Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 7 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 8 of 18 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 activities will require additional time. The most recent Plan of Operations indicates that the project operator anticipated that project activities, including reclamation activities, would require approximately one year and five months. (See SP001869.) Furthermore, the Decision Memorandum specifies that USFS “will monitor and assess the progress of some reclamation activities, including revegetation, invasive species treatments, and erosion control, for a minimum of three years,” and that “additional seeding, weed treatment, or installation of erosion control structures” may be required during the monitoring period. (SP002043.) Defendants argue that this three- year monitoring period should not be considered part of the project’s duration because all ground-disturbing project activities will be completed before the monitoring period begins; however, the Decision Memorandum anticipates that additional ground- disturbing reclamation activities may be required during the three-year monitoring period.5 USFS’s determination that the project can be completed in one year or less is unsupported by the record. Therefore, USFS’s approval of the project using the categorical exclusion for short-term mineral explorations pursuant to 36 C.F.R. § 220.6(e)(8) was arbitrary and capricious. C. Potential Impacts to Listed Species Western yellow-billed cuckoos are likely to occur in the project area during their breeding season, but the birds begin a southbound migration in mid-August, with most having dispersed by mid-September. (SP002013; SP002016.) The USFWS found that cessation of project activities from March 1 to September 30 “will reduce the potential for disturbance of nesting western yellow-billed cuckoos to an immeasurably small level.” (SP002013.) Project “activities capable of disturbing the species will be 5 USFS argues that, if additional reclamation work is required during the three- year monitoring period, the additional reclamation work would be reviewed under NEPA. (Doc. 35 at 4.) However, the reclamation work is already contemplated in and authorized by the Decision Memorandum, with no indication in the record that the already-approved reclamation design features would require a new Plan of Operations or further review and approval. Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 8 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 9 of 18 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conducted only during the non-breeding season, when individuals of the species are not present.” (SP002017.) There is no western yellow-billed cuckoo proposed critical habitat in the project area. (SP002016.) No jaguars are known to inhabit the project area, but the possibility that one may occur in the area cannot be discounted, and the project area contains jaguar critical habitat. (SP002017-18.) The USFWS found that “site traffic, drilling noise, nighttime lighting, and other associated disturbances will cause any jaguars that may be present to avoid the area,” but it concluded that “such a relatively minor, short-term, and temporary change of behavior is insignificant when compared to the large area of habitat available to the species in the vicinity.” (SP002018.) Accordingly, the USFWS found that “the proposed action is not likely to adversely affect the jaguar.” The USFWS also found that “the proposed action is not likely to adversely affect jaguar critical habitat” even though it is likely to harass jaguars’ prey base and even though the “level of disturbance may be intense in terms of noise and human activity.” (SP002019.) The USFWS based these conclusions on the “small scale” of the project’s effects as well as “their brevity and non- permanent nature.” (SP002018.) No resident ocelots are known to occur in the project area, but the Patagonia Mountains provide suitable habitat for ocelots and a male ocelot has been detected in the Patagonia Mountains.6 (SP002020.) The possibility that ocelots could occur in and/or disperse through the project area at any time cannot be discounted. (SP002020.) The USFWS concluded that project activities could cause ocelots to avoid the project area, but anticipated that ocelots “would simply select an adjacent route” without incurring “additional energetic demands, reduced prey availability, or increased predation risk.” (SP002021.) USFWS thus found that the proposed action was “not likely to adversely affect the species,” basing this conclusion “on the small scale of the effects, as well as their brevity and temporary nature.” (SP002021.) Lesser long-nosed bats may forage in the project area through late summer and 6 There is no designated critical habitat for the ocelot. (SP002021.) Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 9 of 17Case 2:16-cv-03115-DGC Document 38-2 Filed 02/03/17 Page 10 of 18 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 early fall, departing in October and November.7 (SP002022.) The primary potential effects of the project on lesser long-nosed bats are nighttime disturbance in October and November and a probable inability to forage on agaves in the area during those months. (SP002022.) The proposed action includes a conservation measure requiring that agaves be avoided to the extent practicable, or relocated. (SP002022.) The USFWS found that lesser long-nosed bats would likely avoid the project area during project activities, but that such avoidance was unlikely to result in reduced foraging or increased energy expenditures “[g]iven the low density of agaves on site, the great number of agaves located outside of the action area but within the dispersal distance of known roosts, and the relatively brief exposure to effects.” (SP002023.) The USFWS accordingly concluded that the project “is not likely to adversely affect the lesser long-nosed bat.” (SP002023.) The project area is located within Mexican spotted owl critical habitat. (SP002025.) One Mexican spotted owl Primary Activity Center (an area of ideal nesting/roosting habitat which is afforded higher protection) is located within the project vicinity, with a nesting core area only 0.1 mile southwest of one of the drill sites. (SP002023.) The Primary Activity Center has a history of occupancy by breeding pairs of Mexican spotted owls. (SP002023.) Mexican spotted owls are territorial, with relatively high fidelity to territories. (SP002023.) The Mexican spotted owls’ breeding season runs from March 1 to August 31 and “represents a time of increased vulnerability” when disturbance of adult birds can result in reduced prey delivery to fledglings and temporary abandonment of nest sites. (SP002023.) Mexican spotted owls will still be present, but not engaged in breeding activities, during the operating period of the project. (SP002025.) The March 1 to September 30 non-operational period will avoid disturbance of breeding owls and their offspring. (SP002026.) Noise disturbance from the project may affect up to 26% of the Mexican spotted owls’ non-breeding season 7 There is no designated critical habitat for lesser long-nosed bats. (SP002023.) Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 10 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 11 of 18 - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 range.8 (SP002025-26.) It “is unclear how nighttime lighting could affect” the Mexican spotted owl. (SP001964.) The USFWS found that owls may avoid the project area during project activities but anticipated that “owls will forage in the remaining, and larger area not subject to noise disturbance, rendering the effects of the action unlikely to occur (discountable) and too small to meaningfully measure (insignificant).” (SP002024- 2025.) The USFWS thus concluded that the project “is not likely to adversely affect the Mexican spotted owl.” (SP002025.) Plaintiffs argue that the Sunnyside Project presents extraordinary circumstances precluding use of a categorical exclusion because it may affect listed species. In Conservation Congress, the court found that USFS’s decision to apply a categorical exclusion to a proposed action was arbitrary and capricious where the agency found that the action may affect, but was not likely to adversely affect, the northern spotted owl. Conservation Cong. v. U.S. Forest Serv., CIV 2:12-02416 WBS KJN, 2013 WL 2457481, *7-8 (E.D. Cal. June 6, 2013). The court noted that “an extraordinary circumstance is a circumstance ‘in which a normally excluded action may have a significant environmental impact.’” Id. at *7 (quoting 40 C.F.R. § 1508.4) (emphasis added in Conservation Cong.). The court recognized that use of a categorical exclusion is appropriate where an agency finds that a proposed action will not negatively impact a listed species, but held that use of a categorical exclusion is not appropriate where the agency merely finds that an action is not likely to negatively affect a listed species. Id. at *8. To the extent that Conservation Congress applied a bright-line rule precluding use of a categorical exclusion whenever the USFWS issues a “may affect, but is not likely to adversely affect” finding, the Court rejects Conservation Congress’s analysis.9 Such a 8 There is a potential discrepancy between the revised BA’s and revised letter of concurrence’s noise disturbance estimates. The revised BA estimates that project activities may elicit a flush response in approximately 3.4% of the Protected Activity Center located within 345 feet of a drill site. (SP001965.) However, the revised letter of concurrence states that “flush response and decreased foraging ability may occur in 26%” of the Protected Activity Center located within 1,049 feet of a drill site. (SP002025.) 9 To the extent that Conservation Congress found USFS’s “not likely to affect” determination unsupported by the administrative record before the court, the factual Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 11 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 12 of 18 - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bright-line rule is inconsistent with the regulatory framework and the deference that courts must afford determinations that are based on agency expertise. A biological assessment’s determination that a proposed action “may affect” a listed species or critical habitat gives rise to a consultation requirement under Section 7 of the ESA. Alliance for the Wild Rockies v. Weber, 979 F. Supp. 2d 1118, 1129 (D. Mont. 2013). The threshold for triggering Section 7 consultation is low. Id. at 1129-30. “Any possible effect, whether beneficial, benign, adverse, or of an undetermined character” is sufficient to trigger consultation. Id. (internal quotation and alteration omitted). Nothing in the applicable regulations specifies that a “may affect” finding triggering consultation under section 7 of the ESA precludes use of a categorical exclusion under NEPA. The test for determining the propriety of using a categorical exclusion under NEPA is distinct from the test for triggering consultation under Section 7 of the ESA. Use of a categorical exclusion is precluded if a proposed action may have a significant environmental effect. 36 C.F.R. § 220.6(c). Whether a proposed action may have a significant environmental effect is a nuanced determination depending in part upon “the degree to which the action may adversely affect an endangered or threatened species or its critical habitat.” 40 C.F.R. § 1508.27(b)(9). The USFS’s expertise makes it uniquely qualified to determine whether the degree of potential adverse effects on listed species or critical habitat rises to the level of a potentially significant environmental effect. Where the agency considers the proper factors and provides a reasoned explanation of why potential effects are insignificant, the Court should defer to the agency’s expertise in this area. See Alaska Ctr. for the Env’t, 189 F.3d at 859 (“Once the agency considers the proper factors and makes a factual determination on whether the impacts are significant or not, that decision implicates substantial agency expertise and is entitled to deference.” (internal quotation omitted)). Here, USFS and USFWS analyzed the Sunnyside Project’s potential effects on similarities between potential effects on the northern spotted owl in Conservation Congress and potential effects on the Mexican spotted owl in the present case lend persuasive value to Conservation Congress. Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 12 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 13 of 18 - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 listed species and provided reasoned explanations of why the project is not likely to adversely affect such species. However, the administrative record indicates that the effects of the Sunnyside Project’s nighttime lighting on the Mexican spotted owl are uncertain, and that negative effects on the owl from project noise can be anticipated in up to 26% of the owl’s non-breeding territory. USFS did not provide a convincing explanation of why these potential effects to the Mexican spotted owl are certain to be environmentally insignificant. See 36 C.F.R. § 220.6(c) (“If the responsible official determines, based on scoping, that it is uncertain whether the proposed action may have a significant effect on the environment, prepare an EA.”); see also Alaska Ctr. for Env’t, 189 F.3d at 859 (“The agency must supply a convincing statement of reasons why potential effects are insignificant.” (internal quotation omitted)). Furthermore, USFS’s determination that the Sunnyside Project will not have significant environmental effects is based in large part upon the anticipated ability of listed species, such as the ocelot and jaguar, to avoid the affected area during project activities. This basis for USFS’s determination is undermined by the revised Decision Memorandum’s failure to consider the Sunnyside Project’s cumulative effects in relation to other temporally and geographically similar mineral exploration projects. D. Cumulative Impact Analysis In determining whether a proposed action has “significant” environmental effects, an agency should consider whether the action is related to other actions with individually insignificant but cumulatively significant impacts. See 40 C.F.R. § 1508.27(b)(7); Forest Service Handbook § 1909.15, Ch. 31.3 (“Scoping should . . . reveal any past, present, or reasonably foreseeable future actions with the potential to create uncertainty over the significance of cumulative effects.”); Alliance for the Wild Rockies v. Weber, 979 F. Supp. 2d 1118, 1129 (D. Mont. 2013) (the “extraordinary circumstances analysis includes consideration of whether a normally excluded action may have cumulatively significant environmental effect”); Sierra Club v. United States, 255 F. Supp. 2d 1177, 1182 (D. Colo. 2002) (“In determining whether an action requires an EA or EIS or is categorically Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 13 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 14 of 18 - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 excluded, federal agencies must not only review the direct impacts of the action, but also analyze indirect and cumulative impacts.”). A cumulative impact is “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7. To demonstrate that an agency failed to conduct a sufficient cumulative impact analysis, Plaintiffs need not “show what cumulative impacts would occur” but merely that there is a “potential for cumulative impact.” Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 605 (9th Cir. 2010). In its revised Decision Memorandum, USFS concluded that the Sunnyside Project “is expected to produce little or no individual or cumulative environmental effects to either biological or physical components of the human environment.” (SP002050.) The revised Decision Memorandum states that the agency’s “cumulative effects analysis” for the project “considered effects associated with other past, present, and reasonably foreseeable projects that may overlap in both time (temporal) and space (geographic)” with the effects of the Sunnyside Project. (SP002053.) The Decision Memorandum does not specifically discuss any individual projects except to note that “the Javelina and Margarita exploration projects” had been withdrawn. (Id.) The Decision Memorandum then noted that the BA “analyzed cumulative effects and determined no actions would significantly contribute to impacts to Forest Service Sensitive Species.” (Id.) The revised BA, however, did not analyze the cumulative effects of nearby mineral exploration projects on USFS land, because the cumulative impact analysis of the revised BA was conducted using the ESA’s narrower definition of cumulative impact rather than NEPA’s definition. The revised BA acknowledges that the definition of cumulative effects used in its analysis “applies only to Section 7 analyses and should not be confused with the broader use of this term in the National Environmental Policy Act.” (SP001969.) While the ESA definition of cumulative effects ignores future federal actions (see 50 C.F.R. § 402.02), the broader NEPA definition looks to “the incremental impact of the action when added to [all] other past, present, and reasonably foreseeable Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 14 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 15 of 18 - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 future actions.” 40 C.F.R. § 1508.7. In relying upon the revised BA’s EPA cumulative impact analysis, the revised Decision Memorandum failed to conduct a proper cumulative impact analysis under NEPA. Cf. Center for Biological Diversity v. Salazar, 791 F. Supp. 2d 687, 702-03 (D. Ariz. May 27, 2011) (agency’s unexplained conclusion that proposed action had no cumulatively significant environmental effects was insufficient to support use of categorical exclusion). A prior BA for the Sunnyside Project notes that another mineral exploration project, the Hermosa Project, is located approximately 2 miles east of the Sunnyside Project and will have similar effects to jaguars, lesser long-nosed bats, Mexican spotted owls, and ocelots. (SP001667.) USFS concedes that the revised Decision Memorandum failed to analyze the cumulative effects of other nearby mineral exploration projects such as the Hermosa Project, but it argues that the failure is harmless error because the Sunnyside Project will not have any cumulative effects with other projects. (Doc. 32 at 20.) “In circumstances where an agency errs,” a court reviewing the agency’s actions under the APA “may evaluate whether such an error was harmless.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir. 2004). “In the context of agency review, the role of harmless error is constrained” to situations where “a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of the decision reached.” Id. (emphasis in original, internal quotation omitted). USFS argues that noise and light impacts are short-term impacts that cease upon project conclusion, and that there are therefore no cumulative noise and light impacts for projects that do not temporally overlap. (Doc. 35 at 11.) However, in finding that the Sunnyside Project was not likely to adversely affect listed species, USFS and USFWS relied heavily on the project’s limited temporal and geographic scope. The record indicates that the Hermosa Project will have similar environmental effects as the Sunnyside Project, meaning the environmental disturbances from the projects will exist over a larger geographical area and a larger temporal timeframe than that analyzed in the Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 15 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 16 of 18 - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 revised Decision Memorandum. Even if the projects will not temporally overlap, USFS has not shown that its failure to analyze the cumulative impact of the Sunnyside and Hermosa projects clearly had no bearing on its conclusion that the Sunnyside Project would not have cumulatively significant environmental effects. Furthermore, USFS has failed to clearly show that the projects will not temporally overlap. At the time the revised Decision Memorandum was issued, the expected implementation date of the Hermosa Project was November 2015. (Doc. 29-2 p. 25.) Therefore, at the time that USFS issued its revised Decision Memorandum, it should have concluded that the Sunnyside and Hermosa Projects would temporally overlap. The argument that the Sunnyside Project and the Hermosa Project will have no cumulative impacts because they will not temporally overlap is a post hoc rationalization unsupported by the information available to USFS at the time it issued its revised Decision Memorandum. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50 (“an agency’s action must be upheld, if at all, on the basis articulated by the agency itself” rather than on post hoc rationalizations). E. Conclusion Because the record does not support the conclusion that the Sunnyside Project can be completed within one year, USFS’s approval of the project using the categorical exclusion for short-term mineral exploration projects under 36 C.F.R. § 220.6(e)(8) was arbitrary and capricious. Furthermore, USFS’s conclusion that no extraordinary circumstances preclude use of a categorical exclusion is undermined by USFS’s insufficient explanation of why anticipated effects on the Mexican spotted owl are certain to be environmentally insignificant, as well as by USFS’s failure to conduct an appropriate cumulative impact analysis. USFS should have prepared an Environmental Assessment. Accordingly, IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 29) is granted and Defendants’ Cross-Motion for Summary Judgment (Doc. 31) is denied. USFS’s April 8, 2015 revised Decision Memorandum is vacated. Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 16 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 17 of 18 - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment accordingly and close this case. Dated this 15th day of September, 2015. Honorable Rosemary Márquez United States District Judge Case 4:14-cv-02446-RM Document 39 Filed 09/15/15 Page 17 of 17Case 2:16-cv-03115-DGC t 8-2 Filed 02/03/17 Page 18 of 18