FILED FOR PUBLICATION DEC 23 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
GREATER YELLOWSTONE No. 09-35729 COALITION; NATURAL RESOURCES DEFENSE COUNCIL; SIERRA CLUB; D.C. No. 4:08-cv-00388-MHW DEFENDERS OF WILDLIFE,
Plaintiffs - Appellants, OPINION
v.
WILMA A. LEWIS; TOM TIDWELL; ROBERT V. ABBEY; THOMAS J. VILSACK; KEN SALAZAR; BRENT LARSON, Supervisor, Caribou-Targhee National Forest,
Defendants - Appellees,
J.R. SIMPLOT COMPANY; UNITED STEELWORKERS LOCAL 632; CITY OF POCATELLO; CITY OF CHUBBUCK; CITY OF SODA SPRINGS; POWER COUNTY; CARIBOU COUNTY; BANNOCK COUNTY; IDAHO FARM BUREAU FEDERATION; TOWN OF AFTON, WYOMING; LINCOLN COUNTY, WYOMING,
Defendant-intervenors - Appellees. GREATER YELLOWSTONE No. 09-35753 COALITION; NATURAL RESOURCES DEFENSE COUNCIL; SIERRA CLUB; D.C. No. 4:08-cv-00388-MHW DEFENDERS OF WILDLIFE,
Plaintiffs,
and
ASHLEY CREEK PROPERTIES, L.L.C.,
Petitioner-intervenor - Appellant,
BRENT LARSON, Supervisor, Caribou- Targhee National Forest, in his official capacity; WILMA A. LEWIS; TOM TIDWELL; ROBERT V. ABBEY; THOMAS J. VILSACK; KEN SALAZAR,
Defendants,
UNITED STEELWORKERS LOCAL 632; CITY OF POCATELLO; CITY OF CHUBBUCK; CITY OF SODA SPRINGS; POWER COUNTY; CARIBOU COUNTY; BANNOCK COUNTY; IDAHO FARM BUREAU FEDERATION; TOWN OF AFTON, WYOMING; LINCOLN COUNTY, WYOMING,
Defendant-intervenors,
and J.R. SIMPLOT COMPANY,
Defendant-intervenor - Appellee.
Appeal from the United States District Court for the District of Idaho Miµel H. Williams, Magistrate Judge, Presiding
Argued and Submitted October 6, 2010 Seattle, Washington
Before: B. FLETCHER, TASHIMA and THOMAS, Circuit Judges.
Opinion by Judge Sidney R. Thomas
THOMAS, Circuit Judge:
Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra
Club, and Defenders of Wildlife (collectively 'Greater Yellowstone') appeal the
district court grant of summary judgment on Greater Yellowstone's action claiming
that the expansion of the J.R. Simplot Smoµy Canyon Mine would violate the
National Environmental Policy Act ('NEPA'), the Clean Water Act ('CWA'), and
the National Forest Management Act ('NFMA'). We have jurisdiction under 28
U.S.C. y 1291, and we affirm.
3 I
Since 1984, J.R. Simplot Company ('Simplot') has operated the Smoµy
Canyon Mine in parts of the Caribou National Forest to acquire phosphate ore.
Current mining operations encompass five panels, labeled A to E, occupying
around 5,000 acres of land. Overburden from these panels contains waste rocµ
with a high selenium concentration. Although essential to animal health in small
amounts, selenium is toxic at elevated levels. Highly toxic selenium
concentrations have been found in area streams. Because of the high selenium
levels produced at the site, the existing mining operations are subject to an ongoing
site investigation and response action under the Comprehensive Environmental
Response, Compensation, and Liability Act.1
To extend the life of the Smoµy Canyon Mine, Simplot proposed to extract
resources from two federal mineral leases adjacent to the mine, designated as
panels F and G. Simplot sought approval from the two federal agencies with
jurisdiction over the federal land. The United States Bureau of Land Management
('BLM') has jurisdiction over all phosphate mining leases on public land, see 30
1 Appendix 2A of the Final Environmental Impact Statement explains the proposed remediation efforts as of 2007, including the diversion of Pole Canyon Creeµ around the Pole Canyon Overburden Area. As counsel noted at oral arguments, such a diversion has successfully been implemented.
4 U.S.C. y 211, and the United States Forest Service has the authority to provide a
special use permit in furtherance of mining operations where such activities occur
on forest system lands, such as the Caribou National Forest, see 36 C.F.R. y 251.
The agencies released a Draft Environmental Impact Statement ('DEIS') for
public comment in 2005. The agencies held three public meetings in January 2006
and received 38,616 letters, emails, and comment forms responding to the DEIS.
In October 2007, the agencies published a Final Environmental Impact Statement
('FEIS'). In the FEIS, the agencies concluded that the mine expansion would not
contribute to violations of water quality standards. The agencies based this
conclusion on the combined effects of (1) Simplot's efforts to reduce the selenium
pollution seeping from Smoµy Canyon's existing pits, and (2) Simplot's proposed
store and release cover system.
In light of the existing selenium pollution, especially in Sage Creeµ, the
agencies acµnowledged the necessity of remediating the current mining areas in
order to avoid exacerbating the current water quality violations. The agencies
determined two areas--Pole Canyon and Panel E--were the major sources of
existing selenium pollution in Sage Creeµ. The agencies noted in the FEIS that
determining all sources of existing pollution would require additional
investigation. The FEIS evaluated the remediation efforts at Pole Canyon and
5 Panel E, and concluded that the remediation efforts would significantly reduce
existing selenium levels.
In combination with remediating existing pollution, Simplot sought to limit
future selenium pollution from the mine expansion by reducing the amount of
water that would flow through the newly extracted waste rocµ. Simplot conducted
scientific modeling and analysis to predict the rate at which water would filter
through the overburden and into surface water, and the amount of selenium such
water would carry. Based on that information, Simplot designed a cover that
would be placed throughout panels F and G to limit the percolation of water.
However, when Simplot tested this cover using a HELP3 water balance model, the
agencies determined the amount of precipitation entering the overburden needed to
be reduced further.
To achieve the required reductions in percolation, Simplot developed the
Deep Dinwoody Cover System, which consists of layers of one to two feet of
topsoil, three feet of material from a geological stratum µnown as the Dinwoody
Formation, and two feet of chert--a coarse material that encourages moisture
storage and subsequent removal of moisture by evapotranspiration. The agencies
eventually adopted this design in the FEIS.
6 To test the Dinwoody Cover, Simplot hired an independent environmental
consultant, O'Kane Consultants, that performed two sets of studies using
conservative estimates of the Dinwoody Cover elements. O'Kane first used 100
years of daily climate data to run a one-dimensional model study that estimated
annual water infiltration based on evaporation, transpiration, runoff, and vertical
percolation. Because the one-dimensional model did not account for horizontal
movement of water, O'Kane then performed two two-dimensional studies. The
first two-dimensional study tooµ into account the full size of the mine, and was run
across twenty years, including the five wettest years. The second two-dimensional
study was run across the full 100 years, but used a shortened slope length instead
of the full size of the mine. The two studies were conducted using this
methodology because a full two-dimensional model would have taµen at least three
months to complete.
During the environmental review process, the agencies convened a twenty-
four person interdisciplinary group of experts, six of whom were tasµed with
reviewing water quality issues. These six experts ('the technical review team')
reviewed the results of the O'Kane studies to evaluate the models and results. One
of these experts, Dr. Christopher Carlson, the Forest Service's National Ground
Water Program Leader, expressed concern with the modeling. In his view, it failed
7 to account for the seasonal surge of snowmelt and precipitation that occurs in the
area. To address this concern, the technical review team asµed a separate
consulting firm, Knight Pi7sold Consulting Engineers, whether the studies
accounted for seasonal variations. Knight Pi7sold concluded that the studies did
account for seasonal variations by including in the inputs the peaµ flows, even
though the output (the total water percolating through the cover) was reported
annually. Because the studies showed the total annual output was no more than 0.7
inches of water, the annual output would remain the same even if that entire 0.7
inches seeped through during the peaµ flow months. After analyzing the O'Kane
studies, the technical review team noted that the lacµ of monthly outputs 'led to
uncertainty within the technical review team about the short-term accuracy' of the
results. However, the technical review team concluded that additional modeling
was not necessary because the team members were confident in the long-term
results and because Simplot agreed to testing of the cover to confirm it operated as
the model predicted.
Throughout the review process, the agencies collaborated with the Idaho
Department of Environmental Ïuality ('IDEÏ'), the Idaho agency charged with
enforcing water quality standards in Idaho. The IDEÏ appointed members to the
technical review team, assisted with sampling and interpreting results, and
8 participated in the modeling review. It concluded that the mine expansion would
not result in violation of either surface or groundwater quality standards, and
concurred with the agencies' approval of the project.
The project was approved by the agencies, despite Greater Yellowstone's
objections. After exhausting the administrative remedies, Greater Yellowstone
filed suit in district court alleging the agencies' approval violated the CWA, the
NFMA, and NEPA. Greater Yellowstone sought a preliminary injunction against
the mine expansion. The court granted J.R. Simplot Company, various Idaho and
Wyoming cities and counties, United Steelworµers Local 632, and the Idaho Farm
Bureau Federation intervenor status. The district court denied the motion for a
preliminary injunction and granted summary judgment for the agencies.2 Greater
Yellowstone filed a timely appeal to this court.
We review a district court's grant of summary judgment de novo. Araµaµi v.
Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002). We may set aside agency action if it
2 Greater Yellowstone appealed the district court's denial of the preliminary injunction motion to this court. We held that the district court too narrowly confined its analysis of irreparable harm, so we vacated in part and remanded, issuing a temporary stay until such proceedings could be completed. On remand, the district court again denied the preliminary injunction motion. Greater Yellowstone appealed and filed a motion for an emergency injunction pending appeal, which we denied. Greater Yellowstone's second appeal for review of the district court's preliminary injunction decision was dismissed as moot after the district court's summary judgment decision.
9 is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.' 5 U.S.C. y 706(2)(A). As we recently explained:
[W]e will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc),
overruled on other grounds by Winter v. Natural Res. Def. Council, 129 S. Ct. 365
(2008) (quotations and citations omitted). Agencies have discretion to rely on their
own experts' reasonable opinions to resolve a conflict between or among
specialists, even if we find contrary views more persuasive. Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 378 (1989). In sum, our 'inquiry must 'be searching
and careful,' but 'the ultimate standard of review is a narrow one.'' Id. (quoting
Citizens to Preserve Overton Parµ, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
II
On appeal, Greater Yellowstone contends that the agencies: (1) acted
arbitrarily and capriciously in violation of NEPA, the CWA, and the NFMA; (2)
violated NEPA's hard looµ and public disclosure requirements; and (3) failed to
acquire a y 401 certification as required under the CWA.
10 A
The district court correctly concluded that the agencies did not act arbitrarily
or capriciously in violation of the CWA and the NFMA by approving the mine
expansion.
The CWA requires federal agencies to determine that approved actions do
not result in pollution in violation of state water quality standards. 33 U.S.C. y
1323(a). The IDEÏ has promulgated regulations establishing the maximum
acceptable level of selenium at .00005 milligrams per liter. Idaho Admin. Code y
58.01.02.210.01. The NFMA requires the Forest Service to develop
comprehensive management plans for each unit of the National Forest System, 16
U.S.C. y 1604(a), and all subsequent agency action must be consistent with the
governing forest plan, id. y 1604(i). The Caribou National Forest Plan provides
that in phosphate mine areas, '[o]verburden and soil materials shall be managed
according to state-of-the-art protocols to help prevent the release of hazardous
substances in excess of state and/or federal regulatory standards.' U.S. Dep't of
Agriculture, Forest Service, Revised Forest Plan for the Caribou National Forest 4-
83 (Feb. 2003).
Although selenium pollution is currently a serious problem at the site, the
agencies concluded in their FEIS that Simplot's mine expansion would not result
11 in increased selenium pollution in violation of Idaho law or the Caribou National
Forest Plan, as prohibited by the CWA and NFMA. This determination rested on
the agencies' conclusion that existing selenium pollution could be reduced and
future selenium pollution could be limited. In reviewing agency decisions, we
must determine whether the agencies' decision is 'founded on a rational
conclusion between the facts found and the choices made.' Ariz. Cattle Growers'
Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir. 2001).
Greater Yellowstone argues that the agencies failed adequately to examine
other sources of existing selenium pollution when concluding that remediation at
two of the µnown sources--Pole Canyon and Panel E--would be sufficient to
offset future pollution from the mine expansion. The agencies acµnowledged that
without decreasing existing pollution, the mine expansion would exacerbate the
current selenium exceedences. The agencies then examined the available evidence,
which indicated that Pole Canyon and Panel E were the major contributors of the
existing selenium contamination. After evaluating the data, the agencies
determined that remediation efforts at Pole Canyon and Panel E alone would be
sufficient to offset selenium from the expansion. Because this is a rational
conclusion from the facts found, neither the CWA or the NFMA required the
agencies to identify further any other possible source of pollution.
12 Greater Yellowstone argues the agencies' reliance on the O'Kane studies
was arbitrary and capricious because the studies failed to account for seasonal
variations. Although Greater Yellowstone points to Dr. Carlson's concerns about
whether the studies adequately modeled peaµ flows, the record demonstrates that
the agencies fully evaluated Dr. Carlson's concerns. Not only did O'Kane assure
the agencies that the models addressed seasonal variations, the technical review
team specifically asµed a separate consultant whether the studies accounted for
such changes in precipitation. All of the experts agreed that the model effectively
accounted for seasonal variation in the long-term. Although the team admitted to
uncertainty about the short-term accuracy of the model, this limited qualification of
the team's conclusions falls far short of Greater Yellowstone's assertion that it
'failed to consider an important aspect of the problem.' Motor Vehicle Mfrs. Ass'n
v. State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983).
Because the record demonstrates that the agencies fully considered Dr.
Carlson's concerns, examined the relevant evidence, and made a reasonable
conclusion, their actions were not arbitrary or capricious.
B
The district court properly concluded that the agencies did not violate
NEPA. NEPA requires two things: that an agency 'consider every significant
13 aspect of the environmental impact of a proposed action,' and that it 'inform the
public that it has indeed considered environmental concerns in its decisionmaµing
process.' Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97
(1983) (quotations omitted). Unliµe the CWA, NEPA does not require particular
environmental standards or mandate that agencies achieve substantive
environmental results. Bering Strait Citizens for Responsible Res. Dev. v. U.S.
Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir. 2008). Greater Yellowstone
asserts that the agencies violated NEPA by failing to conduct the hard looµ
required and by failing fully to disclose internal uncertainties about the studies.
Greater Yellowstone contends the agencies should have conducted a more
searching review in two ways. First, Greater Yellowstone argues the agencies
should have ordered additional two-dimensional modeling to respond to Dr.
Carlson's claim that the models did not account for seasonal variations. Failure to
order additional studies does not, however, equate to a failure to evaluate the
environmental impact of the proposal. As discussed previously, the agencies'
technical review team conducted a thorough review of the extensive modeling
studies, and specifically asµed an outside consultant to evaluate Carlson's
concerns. Although Greater Yellowstone may disagree with the conclusion that
14 the model fully accounted for seasonal variations, reliance on the model does not
constitute a NEPA violation because the agencies conducted the requisite
investigation. See Marsh, 490 U.S. at 378 ('When specialists express conflicting
views, an agency must have discretion to rely on the reasonable opinions of its own
qualified experts even if, as an original matter, a court might find contrary views
more persuasive.'). Indeed, the record supports the conclusion that the proposed
cover design could handle such seasonal fluctuations.
The fact that the agencies relied on future testing to verify the model's
predictions does not invalidate the previous, rigorous evaluation the agencies
conducted. Because the agencies had already satisfied NEPA's hard looµ
requirement, the decision to require future testing should not now be construed as
undermining their evaluation of the environmental impacts of the mine expansion.
Due to this testing, the agencies are in a unique position to monitor the
effectiveness of the cover system. Furthermore, because the requirement of future
testing is a condition of the permit issued to Simplot, the agencies obviously can
enforce that condition of the permit. Should the testing reveal significant
15 inadequacies or miscalculations in the modeling, the agencies presumably are
authorized to, and will require Simplot to, taµe corrective action.3
Greater Yellowstone's reliance on Western Watersheds Project v.
Kraayenbrinµ, -- F.3d --, 2010 WL 340012 (9th Cir. Sept. 1, 2010), in which we
held that the BLM's failure to address concerns raised by experts violated NEPA's
hard looµ requirement, is misplaced. In Western Watersheds, the BLM offered 'no
reasoned analysis whatsoever' in support of its conclusion and 'never seriously
considered' a 'deluge of concerns.' Id. at *16-*17. In contrast, the agencies here
not only fully recognized and evaluated the impact of future selenium pollution,
they specifically asµed an outside consultant about the one concern Greater
Yellowstone says they ignored, justifiably relied on the vast majority of experts
3 As everyone acµnowledges, it will taµe years for any effects of selenium pollution to materialize fully. However, the monitoring efforts detailed in Appendix 2E of the FEIS explain how the agencies will evaluate, from the day the mine opens, any changes that may affect long term water quality. Among other things, Simplot is required to analyze ground and surface water samples bi- annually, monitor fish population surveys, aquatic habitat surveys, and selenium concentration inventories regularly, and construct the cover system in phases to ensure compliance before final implementation. Simplot must then submit the data from this monitoring to the agencies annually. Furthermore, '[w]here non- compliance with state and federal standards . . . is noted, BLM may issue an order to the operator. . . . If there is a failure to comply with an order or there is an imminent threat of serious or irreparable damage to the environment a cessation of mining order may be issued by the BLM.'
16 who said the model accounted for seasonal variations, and further implemented
testing and monitoring to ensure compliance. This is all NEPA requires.
The second way in which Greater Yellowstone asserts the agencies should
have conducted a more searching review is by identifying other existing sources of
pollution in addition to Pole Canyon and Panel E. By failing to evaluate other
potential sources, Greater Yellowstone contends the agencies did not give the
environmental impact of the mine expansion the requisite 'hard looµ.' NEPA,
however, only mandates an evaluation of a proposed plan's future environmental
impact. Because the agencies reasonably concluded that remediation efforts at
Pole Canyon and Panel E alone would sufficiently offset future pollution, any other
investigation of existing pollution was not required.
Greater Yellowstone argues that the agencies also violated NEPA by failing
to disclose the internal uncertainty as to the model's short term accuracy and by
publicly denying any uncertainty. The district court properly determined that the
agencies appropriately disclosed all relevant uncertainties.
An agency, 'must acµnowledge and respond to comments by outside parties
that raise significant uncertainties and reasonably support that such uncertainties
exist.' McNair, 537 F.3d at 1001. However,
17 [T]o the extent our case law suggests that a NEPA violation occurs every time [an agency] does not affirmatively address an uncertainty in the EIS, we have erred. After all, to require the [agency] to affirmatively present every uncertainty in its EIS would be an onerous requirement, given that experts in every scientific field routinely disagree; such a requirement might inadvertently prevent the [agency] from acting due to the burden it would impose.
Id. We cannot hold in this case that one statement indicating uncertainty within the
technical review team represents a significant uncertainty as to the model's ability
to predict future pollution levels. This conclusion is supported by the voluminous
evidence in the record manifesting confidence in the modeling results and the
ultimate determination by the technical review team supporting the models'
predictions.
Greater Yellowstone relies on Lands Council v. Powell, 395 F.3d 1019, 1031
(9th Cir. 2005), in which we held that the Forest Service violated NEPA when it
relied upon a flawed model and failed to disclose the limitations of that model in
the EIS. In Powell, however, the government conceded that the model did not
include relevant variables. Id. at 1031-32. In contrast, the agencies here argue that
the relevant variables reflecting seasonal variations were included and that Dr.
Carlson's objections went to the time scale of the model output rather than the
input variables.
18 Because the one sentence in the record indicating some uncertainty within
the team does not rise to the level of 'significant uncertainty' contemplated by
McNair, we hold that the agencies did not violate NEPA's disclosure requirements.
C
The district court correctly concluded that Simplot did not fail to acquire a
y 401 certification as required under the CWA. The y 401 certification
requirement applies only to discharges from point sources. See Or. Natural Desert
Ass'n v. Dombecµ, 172 F.3d 1092, 1095-97 (9th Cir. 1998). Simplot was not
required to obtain a y 401 certification because the mining pits protected by the
cover do not qualify as a point source.
Pursuant to y 401 of the CWA, '[a]ny applicant for a Federal license or
permit to conduct any activity . . . which may result in any discharge into the
navigable waters, shall provide the licensing or permitting agency a certification
from the State in which the discharge originates.' 33 U.S.C. y 1341(a)(1). The
CWA defines 'discharge' as including 'any addition of any pollutant to navigable
waters from any point source.' Id. y 1362(12)(A). A point source is defined by
the CWA as 'any discernible, confined and discrete conveyance . . . from which
pollutants are or may be discharged.' Id. y 1362(14).
19 The text of y 401 and the case law are clear that some type of collection or
channeling is required to classify an activity as a point source. See Trustees for
Alasµa v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (þ[P]oint and nonpoint sources
are not distinguished by the µind of pollution they create or by the activity causing
the pollution, but rather by whether the pollution reaches the water through a
confined, discrete conveyance.þ). When evaluating what constitutes a point source
in the mining context specifically, we have noted that Congress intended 'runoff
caused primarily by rainfall around activities that employ or create pollutants' to
be a nonpoint source. Id. (citing United States v. Earth Sciences, Inc., 599 F.2d
368, 373 (10th Cir. 1979)).
In the proposed mine expansion, there are two potential discharges where
polluted water enters the ground and, eventually, surface water. First, water runs
off the top of the cover. This water enters a type of stormwater drain system
before it is released. This stormwater system is exactly the type of collection or
channeling contemplated by the CWA, and Simplot has obtained the requisite
y 401 certification for that system.
The second potential source of discharge occurs when some water seeps
through the cover and into the pits containing waste rocµ. This is nonpoint source
pollution because there is no confinement or containment of the water; the cover is
20 designed to divert water away from the pits. As such, the water filters into the pits
at a rate less than water would filter into the surrounding ground that is not
protected by the cover. The small amount of precipitation (around 0.7 inches a
year) that does maµe it through the cover is not collected or channeled, but instead
filters through 200 feet of overburden and 250 to 750 feet of undisturbed material
beneath the overburden, eventually entering the surface water. See N.W. Envtl.
Def. Ctr. v. Brown, --- F.3d ---, 2010 WL 3222105, at *4-5 (9th Cir. Aug. 17,
2010) ('Stormwater that is not collected or channeled and then discharged, but
rather runs off and dissipates in a natural and unimpeded manner, is not a discharge
from a point source.'). The pits that collect the waste rocµ do not constitute point
sources within the meaning of the CWA, and Simplot was not required to obtain a
permit under y 401.
III
The agencies did not act arbitrarily and capriciously in their review and
approval of Simplot's proposed mine expansion project. The agencies complied
with NEPA's procedural requirements by fully evaluating the environmental
impacts of the mine and disclosing those results to the public. Simplot was not
required to obtain a y 401 certification. The district court properly granted
summary judgment to the agencies.
21 AFFIRMED.
22 Counsel
Timothy J. Preso and Douglas L. Honnold; Earthjustice; Bozeman, Montana; attorneys for appellants.
Robert H. Foster, Aaron P. Avila, and Justin R. Pidot; United States Department of Justice; Washington, D.C.; attorneys for appellees.
David H. Maguire; Maguire & Penrod; Pocatello, ID; and James Sanderson; Afton Wyoming; attorneys for intervenor-defendants United Steelworµers Local 632; Idaho Farm Bureau Federation; City of Pocatello, Idaho; City of Soda Springs, Idaho; City of Afton, Wyoming; Power County, Idaho; Bannocµ County, Idaho; Caribou County, Idaho; and Lincoln County, Wyoming.
Albert P. Barµer and Paul L. Arrington; Barµer Rosholt & Simpson, LLP; Boise, Idaho, attorneys for intervenor-defendant J. R. Simplot Company.
23 FILED Greater Yellowstone v. Lewis 09-35729 B. Fletcher, Circuit Judge, dissenting:23 2010 DEC
MOLLY C. DWYER, CLERK I respectfully dissent. Although I concur in Part II.C of the majority. CO U RT OF AP PE A LS U.S
opinion, I cannot agree with the majority that the federal agencies acted neither
arbitrarily nor capriciously when approving the Smoµy Canyon Mine expansion
project. The majority violates both the letter and the spirit of the applicable federal
environmental standards by approving agency action despite currently lacµing
critical information and by deferring µey evaluations to some unspecified future
date.
I
To understand fully what is at issue in this case, it is necessary to focus on
two µey facts. First, in 2003, the Environmental Protection Agency, U.S. Forest
Service, and Idaho Department of Environmental Ïuality signed an Administrative
Order on Consent pursuant to the Comprehensive Environmental Compensation
Liability Act (CERCLA) with the J.R. Simplot Company ('Simplot'). This order
required Simplot to undertaµe a set of 'removal response actions' to clean up
selenium pollution the company's mining activities had caused in and around the
Smoµy Canyon Mine. There is no evidence, however, that Simplot has complied
with its obligation to develop and implement a comprehensive clean-up plan for
pollution stemming from existing mine panels A, B, C, and D. In fact, Simplot has
1 only identified some of the sources of extant selenium pollution caused by its
mining activities in Smoµy Canyon.
Second, Simplot is at the helm of an industry that contributes millions of
dollars annually to the economy of southeastern Idaho and western Wyoming.
Simplot's Smoµy Canyon Mine in eastern Idaho provides phosphate ore through a
slurry line to a manufacturing facility µnown as the Don Plant in Pocatello, Idaho.
The claim is that, if the Smoµy Canyon Mine expansion project were halted, the
Don Plant would face closure. As evident from the myriad intervenors in this law
suit, significant economic interests oppose this outcome.
For example, according to the United Steelworµers Local 632, the union
which represents more than 250 employees at the Don Plant, that facility provides
over ü33 million in wages, salaries, and benefits for residents of four counties.
The Don Plant is thus a µey source of employment in an area where many residents
lacµ post-high school educations and where unemployment is chronic. Roger
Chase, a former Simplot employee who served as the mayor of Pocatello from
2002 through 2009, estimated that Simplot jobs paid twenty to thirty percent more
than other new jobs available in Pocatello. Chase also testified that Simplot
'provides substantial benefits to the City of Pocatello,' including funding for Idaho
State University. The Idaho Farm Bureau Federation has warned that the closure
2 of the Don Plant would adversely affect Idaho farmers' farming costs and overall
standards of living. County commissioners for communities adjacent to the Don
Plant estimated that the closure of either the mine or the plant would result in the
loss of millions of dollars in tax revenues, jeopardizing local school district
budgets and other social services in the region.
Against this bacµdrop, Simplot applied to the Bureau of Land Management
('BLM') and the U.S. Forest Service (collectively, 'the agencies') for permission
to expand the Smoµy Canyon Mine into two new panels, F and G. The expansion
would extend the life of the mine, and of the Don Plant, by fourteen to sixteen
years. On the record before us, I cannot agree with the majority that the agencies
did not act arbitrarily or capriciously in approving the mine expansion project, in
violation of the Clean Water Act ('CWA'), National Forest Management Act
('NFMA'), and the National Environmental Policy Act ('NEPA'). Rather, I
would hold that the agencies violated these federal laws in three distinct ways: (1)
by authorizing the expansion project on the basis of admittedly incomplete
information regarding sources of extant selenium pollution, without any indication
that the missing information could not reasonably be obtained; (2) by relying on
the results of concededly inadequate modeling to predict the water quality impacts
3 of the expansion project; and (3) by adopting what amounts to a 'test while
mining'scheme, relying on post-decisional modeling rather than additional
modeling prior to project approval to evaluate the expanded mine's environmental
impacts.
A
Under the CWA, states are required to compile a list of water bodies, called
a y 303(d) list, that do not achieve applicable water quality standards. See 33
U.S.C. y 1313(d). The Final Environmental Impact Statement ('FEIS') for the
mine expansion project referenced the 2002 list, which encompassed twenty-four
miles of streams considered impaired by selenium. The impaired water bodies
include South Forµ Sage Creeµ, Pole Canyon Creeµ, and various other tributaries
to Sage Creeµ. The record nowhere reveals what µind of remediation has been
undertaµen.
In evaluating the mine expansion project, the agencies determined that
remediation at just two µnown sources of selenium pollution, Pole Canyon and
Panel E, would suffice to offset future pollution caused from additional mining.
This determination was critical for the agencies' authorization of the mine
expansion project, which was premised in part on the assumption that the
successful remediation of these sites would be sufficient to offset additional
4 selenium discharges associated with new mining activities without pushing the
total selenium levels over legal limits.
The majority contends that the agencies' decision that the remediation of
Pole Canyon and Panel E would adequately offset future mine-related pollution is
rational, and accepts the agencies' conclusion that these areas are the major sources
of existing selenium pollution. Maj. Op. at 5, 12. The record, however, belies
these conclusions, and indicates that Pole Canyon and Panel E are but two of the
µnown sources of existing selenium pollution.
In choosing to focus on Pole Canyon and Panel E, the Forest Service and
BLM relied on a contractor employed by Simplot to assess these sites. It
concluded that the sites were exclusively responsible for the selenium
contamination in Hoopes Spring and South Forµ Sage Creeµ Spring. The agencies
acµnowledged, however, that the contractor's conclusion was but 'one possible
interpretation' of the limited available data, and further that 'additional
investigation' would be required to determine all the 'source(s)' of existing
selenium contamination in the area. Indeed, the record before the agencies at the
time of their determination mentioned selenium contributions from at least two
other sources: Panel A and Panel D. Yet these sources were not included in the
proposed remediation plan.
5 When agencies evaluate 'reasonably foreseeable significant adverse effects
on the human environment in an environmental impact statement,' and incomplete
information 'is essential to a reasoned choice among alternatives and the overall
costs of obtaining it are not exorbitant,' NEPA requires that that information be
obtained and included in the EIS. See 40 C.F.R. yy 1502.22, 1502.22(a). It is
undeniable that the missing information at issue here -- the extent of existing
selenium pollution at the site of a proposed mine expansion project -- 'is essential
to a reasoned choice among alternatives.' Id. Although the agencies
acµnowledged the need for 'further investigation' before all sources of selenium
contamination at Smoµy Canyon could be identified, there is no indication on the
record before this court that the costs of such investigation would be exorbitant.
The agencies' failure to obtain and include a comprehensive list of the sources of
selenium contamination at Smoµy Canyon, therefore, violates federal law. This
failing is particularly egregious given that Simplot's mining operations at Smoµy
Canyon have been subject to CERCLA response actions for over seven years.
The majority holds that, since NEPA 'only mandates an evaluation of a
proposed plan's future environmental impact,' further investigation of existing
pollution was not required. Maj. Op. at 16. This is error. Under the
circumstances of this case, any meaningful evaluation of the mine expansion
6 project's future environmental impacts requires a thorough understanding of
existing pollution in the project area. Put differently, because Simplot's prior
mining activities have so polluted Smoµy Canyon, additional mining will
necessarily exacerbate pollution in violation of state and federal environmental
standards unless significant remediation is completed before any new mining
occurs. A comprehensive understanding of existing pollution on site is a
prerequisite to any determination of where remediation efforts should begin.
Given the foregoing, the agencies' conclusion that the remediation of Pole
Canyon and Panel E will be sufficient to offset future pollution from the Smoµy
Canyon Mine expansion project is hardly a rational conclusion. Motor Vehicle
Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (To
avoid maµing an arbitrary and capricious determination, agencies 'must examine
the relevant data and articulate a satisfactory explanation for [their] action
including a 'rational connection between the facts found and the choice made.''
(quoting Burlington Trucµ Lines, Inc. v. United States, 371 U.S. 156, 168 (1962));
see also Port of Seattle v. FERC, 499 F.3d 1016, 1035 (9th Cir. 2007), cert. denied,
130 S. Ct. 1051 (2010).
As the majority notes, one of the experts who participated in the
7 environmental review process was Dr. Christopher Carlson, the Forest Service's
National Ground Water Program Leader. In a detailed memorandum written in
January 2007, Dr. Carlson analyzed the proposed cover system for Panels F and G.
Dr. Carlson observed that 'as the modeling effort progressed, [Simplot's]
contractor had substantial difficulty getting the selected model to execute
appropriately,' leading it to 'implement a number of short cuts and approximations
in the analyses . . . .' These shortcuts 'resulted in a cover evaluation process that
did not fully characterize or evaluate the expected cover performance, design
options, modeling assumptions and input uncertainty, or the overall uncertainty in
the predictions.' This led Dr. Carlson to conclude, on the basis of his extensive
expertise in such matters, that 'both the agencies and public are left with a limited
understanding of the expected operation of the cover system, its critical design
features, and the µey expected stressors.'
More specifically, Dr. Carlson noted that since the cover would be set 'at an
elevation of about 7500 [feet] in the northern tier of the country, the primary
environmental forcings that the cover will be expected to handle while limiting
infiltration are seasonal in nature (e.g., freeze-thaw, snowmelt, wetting-drying,
evapotranspiration).' In other words, an absolutely central question regarding the
ability of the proposed cover to function as intended involved the cover's capacity
8 to respond to seasonal variations.
Yet, as Dr. Carlson noted, 'the short cuts taµen to speed the [modeling]
process' led to an evaluation of model output on only an average annual basis. Of
the 33 inches of precipitation received each year in the area, however,
approximately 22 inches -- or two thirds -- are associated with the spring
snowmelt. A major seasonal surge is thus predictable, and relevant to the cover's
actual functioning capability. The modeling completed did not account for any
such surges. This critical shortcoming prompted Dr. Carlson to conclude 'that the
lacµ of seasonal information, when the snowmelt dominated hydrology of the area
would be most extreme, limits reviewers' ability to fully characterize the expected
conditions and develop a complete understanding of the processes liµely to be
important for both near-term and long-term cover performance.' (emphasis added)
Dr. Carlson's objections were a reiteration of concerns he had expressed in
October 2006, when he warned that an evaluation of the proposed cover design that
was based 'purely on an annual average basis when we µnow there are significant
seasonal aspects to the hydrological cycle should not be acceptable.'
Rather than confront and address these fundamental inadequacies in the
modeling completed, and instead of ordering additional modeling to obtain the
seasonal information which the Forest Service's own groundwater expert had
9 deemed critical, the agencies simply concluded that 'there is sufficient information
to implement the store and release cover system developed,' and that '[n]o further
cover modeling efforts are needed.'
The majority accepts this conclusion on the basis of the agencies' contention
that 'the annual output would remain the same even if [the] entire 0.7 inches [of
water percolating through the cover annually] seeped through during the peaµ flow
months.' Maj. Op. at 8. Yet there is no evidence in the record before this court
that the proposed cover design could handle such seasonal fluctuations, or what
would happen if all or even most of the annual output seeped through the cover in
a few short weeµs in the spring.1 Indeed, the agencies' technical review team
admitted that the lacµ of monthly output analysis 'led to uncertainty within [the
team] about the short-term accuracy' of the modeling results.2
This is, therefore, not a case involving reasonable scientific disagreements
1 The majority argues that the agencies' determination is sound since 'the relevant variables reflecting seasonal variations were included [in the modeling] and . . . Dr. Carlson's objections went to the time scale of the model output rather than the input variables.' Maj. Op. at 18. This obfuscates the issue: namely, that the model's output predictions are not trustworthy in light of the corners cut and limitations Dr. Carlson identified. 2 Simplot's offer to test the proposed cover design further to ensure that it performs as predicted after the mine expansion is underway is another indication that the agencies' conclusions lacµ adequate factual bases.
10 among qualified experts. Cf. Marsh v. Or. Natural Res. Council, 490 U.S. 360,
378 (1989). Rather, this is a case in which the agency's expert raised substantial
uncertainties that were supported by scientific authority, and which the agencies
entirely failed to address in the FEIS. Under NEPA, 'federal agencies must
specifically discuss at appropriate points in the final [EIS] any responsible
opposing view which was not adequately addressed in the draft [EIS] and . . .
indicate the [agencies]'s response to the issues raised. A failure to do so is itself a
NEPA violation.' Wildwest Inst. v. Bull, 547 F.3d 1162, 1171 (9th Cir. 2008)
(citing 40 C.F.R. y 1502.9(b)) (alterations in original; quotation marµs omitted).
Rather than address Dr. Carlson's measured analysis, the defendants maµe
every effort to minimize or discredit the import of his opinions, a lead the majority
willingly follows. But Dr. Carlson is not just one person on a larger team of
experts. He is the leader of the U.S. Forest Service's National Ground Water
Program, and, as such, has deep expertise on the water pollution problems that lie
at the very heart of the mine expansion project. Moreover, the additional modeling
necessary to ascertain the seasonal viability of the proposed cover design could, by
all accounts, have been completed in as little as four to ten days. The defendants'
dismissive attitude, therefore, may reflect little more than uncertainty as to what
might surface if additional studies or investigation had been completed. The court
11 should not endorse such an aversion to finding out the truth.
The majority emphasizes that all the experts involved 'agreed that the model
effectively accounted for seasonal variation in the long-term.' Maj. Op. at 13.
This is an overstatement; there is no indication that Dr. Carlson ever found that the
modeling completed was effective in any respect. Even assuming that the
majority's characterization is accurate, however, it is irrelevant to the questions
raised on this appeal and to the court's role in evaluating the adequacy of agency
action. Even if the model effectively accounted for seasonal variation in the long-
term, this alone is insufficient, because the mine expansion project will, at most,
extend the life of the Smoµy Canyon Mine for fourteen to sixteen years. The
agencies' conclusions, and the majority's opinion, leave open the possibility that
significant environmental pollution will occur at the Smoµy Canyon Mine in the
near term. If this is not 'fail[ure] to consider an important aspect of the problem,'
what isá Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43.
NEPA's 'looµ before you leap' requirements dictate that agencies 'consider
every significant aspect of the environmental impact of a proposed action' before
that action is approved. Bering Strait Citizens for Responsible Res. Dev. v. U.S.
Army Corps of Engineers, 524 F.3d 938, 947 (9th Cir. 2008) (quoting Baltimore
12 Gas & Elec. Co. v. Natural Res. Defense Council, Inc., 462 U.S. 87, 97 (1983)). It
is not appropriate or acceptable 'to defer consideration of cumulative impacts to a
future date. 'NEPA requires consideration of the potential impact of an action
before the action taµes place.'' Neighbors of Cuddy Mountain v. U.S. Forest Serv.,
137 F.3d 1372, 1380 (9th Cir. 1998) (quoting City of Tenaµee Springs v. Clough,
915 F.2d 1308, 1313 (9th Cir. 1990) (emphasis in original)).
The agencies' actions here are completely contrary to these well-established
legal principles. As evident from the foregoing, the agencies did not conduct a
'previous, rigorous evaluation' of the proposed cover design via their limited
modeling. Maj. Op. at 15. The majority's contention that this modeling 'satisfied
NEPA's hard looµ requirement' is belied by the record before this court. Indeed,
the majority seems to recognize that myriad lingering questions central to a
thorough evaluation of the mine expansion project remain: 'Should the testing
reveal significant inadequacies or miscalculations in the modeling,' the majority
asserts, 'the agencies presumably are authorized to, and will require Simplot to,
taµe corrective action.' Id.
It is telling that no legal authority is cited for this procedure. The majority's
approval is especially troubling given that the proposed expansion might extend
the life of the mine for another fourteen to sixteen years, a time period in which the
13 full extent of new pollution caused may not even register.3 When the effects from
the expansion become clear, Simplot may be 'long gone' -- leaving selenium-
contaminated waterways responsible for abnormalities in aquatic life, dead
livestocµ, and other destructive consequences in its waµe.
The environmental harm that will result from expanded mining in Smoµy
Canyon can only be prevented with careful, reasoned evaluations that account for
detailed scientific opinions and tailor remedial steps in light of those opinions. The
majority's willingness to accept the flawed and incomplete assessments of the
agencies in this case amounts to an abdication of the judicial function. We should
hold that the record before this court reveals significant omissions and woefully
inadequate assessments of µnown and unµnown problems associated with the
proposed cover design; that, absent a comprehensive assessment of existing
sources of selenium pollution in the Smoµy Canyon area, the remediation efforts
necessary to clean up existing pollution Simplot has already created cannot
proceed; and that the agencies' decision to approve the mine expansion project in
light of these deficiencies is arbitrary and capricious and in violation of federal
3 The agencies concede that it taµes ten years for new selenium pollution to register, and for remediation efforts to show any results.
14 environmental law.
I dissent.