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Sierra Club v. Penfold

ELR Citation: 18 ELR 20463
Nos. No. A86-083, (D. Alaska, 11/06/1987) Plaintiffs' motions to amend complaint, summary judgment granted

The court invalidates a Bureau of Land Management (BLM) regulation exempting mines on public lands in Alaska of less than five acres from environmental review under the National Environmental Policy Act (NEPA) and the Alaska National Interest Lands Conservation Act (ANILCA). In 1980, BLM promulgated a regulation providing that mines causing a distrurbance of five acres or less may operate under a notice of intent (notice regulation), without prior BLM approval. In 1983, BLM amended a related regulation governing mines of more than five acres that extended the notice regulation's coverage to certain other public lands in Alaska. The court first holds that it may review the 1983 amendment. Although the court of appeals did not mention the 1983 amendment in its remand order, the language of the order is nonrestrictive and it is unlikely that the court of appeals intended to prohibit this court from considering a regulation that controls the applicability of the notice regulation. The court then holds that the new claims pursued by plaintiffs are not encompassed by their original 1986 complaint. Plaintiffs' new NEPA and ANILCA claims alleging procedural deficiencies in rulemaking are quite different from plaintiffs' original allegations that BLM's policies and practices of not preparing environmental assessments (EAs) or subsistence evaluations for mines of less than five acres violated NEPA and ANILCA. The court allows plaintiffs to amend their complaint to add new substantive challenges to the notice regulation under the Administrative Procedure Act (APA) and the Federal Land Policy and Management Act (FLPMA). The court holds that laches does not apply, even though plaintiffs did not challenge the 1980 regulation or the 1983 amendment for several years, since laches would not operate in any case to a challenge to the regulations as they apply to future mining operations. The court strikes from the proposed new complaint claims that the court has previously dismissed. The court holds that the new procedural NEPA and ANILCA claims do not relate back to the original complaint within the meaning of Federal Rule of Civil Procedure 15(c). The original complaint focused on BLM's current policies and practices, whereas the new claims focus on rulemaking procedures conducted prior to 1980. The court also holds that the procedural claims relating to the 1980 regulation are barred by the six-year statute-of-limitations period for actions against the United States in 28 U.S.C. §2401(a), finding no against the United States in 28 U.S.C. §2401(a), finding no reason to exclude regulations from the statute. The statute does not apply to plaintiffs' procedural claims regarding the 1983 amendment or their substantive claims, however.

Turning to the merits, the court holds that BLM's establishment in the regulations of a distinction between mines of more than and mines of less than five acres is rational, since there is a logical relationship between the amount of land a mine disturbs and the environmental impacts of a mine. The court holds that the regulations are not arbitrary or capricious under the APA for failing to make a distinction between isolated small mines and small mines operating in proximity to other mines. The court holds that BLM's mandate under FLPMA §302(b) to prevent unnecessary or undue degradation of public lands does not require the agency to conduct prior review of all commercial mining operations regardless of mine size. Even if some mines cause unnecessary and undue degradation, the regulatory scheme itself does not necessarily violate FLPMA §302(b)'s mandate. The efficiencies of a system utilizing notices of intent may also outweigh the benefits to be gained from a prior review system.

The court notes that no parties dispute that the 1983 amendment's extension of the notice system to additional public lands in Alaska was a federal action within the meaning of NEPA, requiring preparation of an EA, and that the rulemaking required a subsistence evaluation under ANILCA §810. The court declines to apply the doctrine of laches despite plaintiffs' delay, since it can adjust the remedy to accommodate the undesirable consequences of the delay. The courts holds that the 1983 extension of the notice regulation's coverage is invalid, since neither an EA nor a subsistence evaluation were prepared.

[Earlier decisions from this litigation are published at 17 ELR 21058, 21061, 21254, and 21257.]

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

Counsel for Defendant
Dean Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216