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Sierra Club v. Penfold

Citation: 17 ELR 21058
No. No. A86-083, (D. Alaska, 01/29/1987) Ruling on EA preparation

The court holds that placer mining operations disturbing five acres or less of public lands are not federal actions under the National Environmental Policy Act (NEPA), and thus the Bureau of Land Management (BLM) is not required to perform environmental assessments (EAs) and subsistence studies before allowing these operations to proceed. The court initially declines to rule on whether long-term camping permits along a national wild and scenic river fall within a categorical exclusion under NEPA negating the requirement to conduct an EA, since BLM has declared that it will prepare EAs for such permits in the future. The court then holds that BLM's review process for five-acre-or-less mining operations does not constitute federal action within the meaning of the Council on Environmental Quality's NEPA regulations. It is conceded that BLM regulates mining activity in general on public lands, and the regulations define federal actions to include activities "regulated" by federal agencies, but plaintiff has not demonstrated that BLM's activities with respect to these small placer mining operations amount to control of those operations. BLM's policy with respect to these operations does not constitute "approval" of them, either. Although BLM policy requires that the miner file a notice describing the operation and establishes a series of steps that must be taken by BLM when it receives a mining notice, most of these steps are ministerial and the miner need not obtain any approval from BLM before actually commencing operations. The steps are essentially a service to remind miners of their legal obligations concerning land title, cultural and historical resources, endangered species, and hazardous wastes. Even if the list were interpreted to mean that the miner will be violating a law if the operation proceeds as described, BLM's actions would be better characterized as screening for enforcement purposes rather than as an approval process, and as such are not federal actions under the regulations. The court also holds that BLM's processing of mining notices for operations of less than five acres does not trigger a requirement for subsistence evaluations pursuant to § 810 of the Alaska National Interest Lands Conservation Act (ANILCA). Since plaintiff has not shown that BLM takes any action on the notices under NEPA, it has likewise not shown that BLM has made any "determination" that would trigger the requirements of ANILCA.

[A related decision in this case appears at 17 ELR 21061.]

Counsel for Plaintiffs
Lauri J. Adams, Philip S. Barnett
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendants
Dean Dunsmore, U.S. Attorney
Fed'l Bldg. & U.S. Cthse., 701 C St., Rm. C-252, Mail Box 9, Anchorage AK 99513
(907) 271-5071