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Sierra Club v. Penfold

Citation: 17 ELR 21254
No. No. A86-083, 664 F. Supp. 1299/(D. Alaska, 05/28/1987) Subsistence uses & cumulative impacts, injunctions extended

The court holds that the Alaska National Interest Lands Conservation Act (ANILCA) requires the Bureau of Land Management (BLM) to evaluate the cumulative environmental impacts of placer mining on subsistence uses when it prepares an environmental impact statement (EIS) on the impacts of mining on environmental degradation in a national wild river watershed, and extends a previously entered injunction to several additional watersheds. The court earlier held, 17 ELR 21061, that BLM's approval of placer mining operations of more than five acres falls within the requirements of the National Environmental Policy Act (NEPA) since federal approval is required, and that BLM must evaluate the cumulative impacts of all placer mining operations in the watershed of Birch Creek, a component of the National Wild and Scenic River system. The court first holds that the cumulative impacts of placer mining on Birch Creek trigger the notice and hearing requirements of ANILCA § 810(a), since a native village is located downstream from the mining operations. ANILCA's notice and hearing requirement is triggered when a contemplated action "may" significantly restrict subsistence uses, and the cumulative impacts of placer mining in the watershed exceed this threshold. Although § 810(a) does not explicitly require consideration of cumulative impacts, it can be compared to NEPA, which likewise makes no express mention of cumulative impacts yet has been held to require such consideration in certain circumstances. The court holds that although the appropriate remedy might normally be remand to the agency [17 ELR 21255] for consideration of whether subsistence uses may be affected, remand is inappropriate where the record is clear that subsistence uses may be affected.

Turning to other national wild river watersheds, the court holds that BLM must consider whether placer mining operations have sufficient cumulative impacts on Beaver Creek to require an EIS. The court remands this question to the agency, rather than directly ordering that an EIS be prepared, since the factual record is not sufficiently developed. The court suggests that a separate environmental assessment (EA) on cumulative impacts be prepared, rather than evaluating the need for a cumulative EIS in an EA for a mining plan of operations, since the latter route could result in simultaneous review by both the district court and the Interior Board of Land Appeals. The court holds that BLM must prepare an EIS for the Fortymile River watershed, since the mines subject to BLM approval in that area contribute to degradation of water quality and the cumulative impacts of the mining operations may be significant. The court excepts a particular river segment from its injunction since mining in that area does not appear to significantly contribute to downstream degradation. The court holds that BLM must consider whether there is a likelihood of significant impact on subsistence uses on several rivers in an area called Minto Flats, enjoining mining plan approvals until the § 810(a) evaluation is completed.

[The court's earlier decisions appear at 17 ELR 21058 and 21061.]

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

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