Northern Alaska Environmental Center v. Hodel

No. J85-009 CIV (D. Alaska July 24, 1985; order amended August 22, 1985)

The court holds that the National Environmental Policy Act (NEPA) requires the National Park Service (NPS) to prepare environmental assessments (EAs) and environmental impact statements (EISs) on the impacts of mining in national parks in Alaska. The court first concludes that joinder of all miners who have filed a plan of operation is infeasible, but that this case falls within the "public exception" rule to Federal Rule of Civil Procedure 19 and the miners not joined are not necessary parties.

The court holds that the NPS has violated NEPA and its own regulations concerning mining in national parks in not preparing environmental analyses or EAs prior to approving. The court notes that the NPS has relied on a regulation allowing temporary approvals for mining operations since 1979 and has not once prepared an EA, contrary to NEPA's mandates. The regulation allows temporary approval only if continuation of mining operations is necessary to enable timely compliance with the mining regulations or if ceasing existing operations would result in an unreasonable economic hardship to the miner. Neither of these situations applies here. The court then rules that the regulations require the NPS to consider permits for access to inholdings separately from the approval of the plan of operations and finds that the NPS has failed to do so. Finally, the court holds that the NPS must prepare EISs on the potential cumulative environmental impacts when more than one mining operation is occurring within a park.

The court concludes that an injunction should issue and sets aside the NPS's approval of submitted mining plans in national parks in Alaska. In addition to plaintiffs having shown probable success on the merits and possible irreparable environmental injury to the national parks, there is a strong public interest in enforcing regulations designed to protect the parks.

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 Defendant
Michael R. Spaan, U.S. Attorney
Federal Bldg. & U.S. Cthse., 701 C St., Rm C-252, Mail Box 9, Anchorage AK 99513
(907) 271-5071

Counsel for Intervenor
Thomas R. Wickwire
3700 University Ave S., Fairbanks AK 99701
(907) 452-4848

[15 ELR 21049]

Heydt, J.:

Memorandum and Order

THIS CAUSE comes before the court on plaintiffs' motion for a preliminary injunction and defendants' motion for order requiring joinder of necessary parties and for stay of proceedings. In this action plaintiffs seek to enjoin mining in the national parks in Alaska until such time as the National Park Service complies with its regulations on mining and with the National Environmental Policy Act (NEPA). Plaintiffs have requested that the court enjoin the Park Service from approving plans of operations allowing mining and rescind and declare invalid all prior approvals of plans of operations issued in 1985.

I. Joinder of Parties

Initially, the federal defendants argue that the individual miners who have submitted plans of operations in 1985 are necessary parties under Fed. R. Civ. P. 19 and that the court should stay these proceedings until they have been joined. As of the date of oral argument on these motions, June 21, 1985, 39 plans of operations had been submitted and 26 approved.

If in fact joinder is ordered, considerably more than 39 parties will need to be joined since some claims will have more than one operator or owner and since sometimes operators are different persons than owners. At this time mining is proceeding and the parties to be served are scattered in hard to reach locations throughout the state. Consequently, as a practical matter, the court finds that joinder of all the miners is infeasible at this time. See Fed. R. Civ. P. 19(a).

Additionally, the court finds this case falls within the "public interest" exception to Rule 19. See, e.g., Louisiana v. Lee, 596 F. Supp. 645, 651 [15 ELR 20141] (E.D. La. 1984); NRDC v. Berklund, 458 F. Supp. 925, 933 [9 ELR 20047] (D.D.C. 1978), aff'd, 609 F.2d 553 [9 ELR 20761] (D.C. Cir. 1979).

For the above reasons, the motion for order requiring joinder of parties is denied.

II. Preliminary Injunction

A. Backgrouna

Congress has declared the fundamental purpose of the national parks is "to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1 (1982). Concern with mining in national parks caused Congress to pass the Mining in the Parks Act in 1976. See P.L. 94-429, 90 Stat. 1342 (1976) (codified in part at 16 U.S.C. §§ 1901-12). In this Act Congress declared that mineral exploration and development in the National Parks conflicted with the purpose for which the Parks were established and that "all mining operations . . . should be conducted so as to prevent or minimize damage to the environment and other resource values. 16 U.S.C. § 1901; See also H.R.94-1428, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S.C.C.A.N. 2487. Pursuant to the Act and other statutes, the Park Service has implemented regulations controlling mining in national parks. See 36 C.F.R. Part 9 (1984).

In 1980 Congress passed ANILCA, thus considerably expanding the size of the National Park Systerm in Alaska. Numerous mining claims were included within the boundaries of the expanded parks, and it is the operation of these claims that is the subject of this suit. ANILCA required that the new Alaska park lands be subject to the same regulations as the remainder of the park system. ANILCA § 203. It further required that the parks be managed for their wilderness and recreation values. See id. §§ 201-02. For example, Wrangall-St. Elias National Park shall be managed

[t]o maintain the unimpaired scenic beauty and quality of high mountain peaks, foothills, glacial systems, lakes, and streams, valleys, and coastal landscapes in their natural state; [to protect wildlife habitat; and to provide] wilderness recreational activities.

Id. § 201(10). Finally, it closed all lands in the park system to further mining claims. Id. § 206. There is no indication that Congress intended mining in the new park areas to be treated and differently from mining in previously existing parks.¹

There are currently approximately 40 mining operations underway in the national parks in Alaska. A number of these, particularly certain placer mining operations, are causing extensive environmental damage to the parks. See, e.g., Kantishna Hills/Dunkle Mine Study Report FEIS, December 1984; Plaintiff's Motion for Preliminary Injunction 4-14. Specifically, the Kantishna FEIS reported that waste-water discharges grossly exceeded water quality standards at all operations tested, FEIS at 5, that the mining has major adverse effects on fish habitat and water quality, id. at 139-40, 197, 205, that mining will cause a decline in animal populations, id. at 183, 202-04; and that it would degrade the mining area's scenic value. Id. at 214.²

B. Claims for Relief

Plaintiffs argue that the Park Service's regulation of mining in national parks in Alaska is unlawful in four respects: (1) The Park Service approves plans of operation without preparing the environmental analyses required by its regulations; (2) The Park Service fails to follow its regulations for controlling access; (3) The Park Service approves plans of operations without preparing the environmental assessments (EA) required by NEPA; and (4) The Park Service approves multiple plans of operations without preparing environmental impact statements (EIS) evaluating cumulative impact.³

(1) Environmental Analyses and Environmental Assessments

In order to preserve the nature of the park system, the National Park Service has regulated mining in the parks. See generally 16 U.S.C. § 1902 (authorizing regulation). As part of that regulation, miners must submit plans of operation, see 36 C.F.R. § 9.9, and the Park Service must approve the plan before mining is allowed. Id. §§ 9.9, 9.10.⁴ Prior to approving a plan, the Regional Director must prepare an environmental analysis of the plan. Id. § 9.10(b), [15 ELR 21050] (d). The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1982), also requires the Park Service to prepare environmental assessments prior to approving plans of operations. 40 C.F.R. §§ 1501.4(b), 1508.9 (1984).⁵

Plaintiffs allege, and federal defendants do not dispute, that the Park Service has not been preparing either environmental analyses or environmental assessments prior to approving plans of operation. The court finds that the approval of the permits to be agency action "without observance of procedure required by law." The approvals therefore are unlawful and must be set aside. 5 U.S.C. § 706(2) (1982).

To Park Service has attempted to circumvent the requirement for environmental assessments by granting "temporary" approvals of operations under 36 C.F.R. § 9.10(g). See Exhibits D-F, Plaintiffs' Motion for Preliminary Injunction. However, the Service has been relying on this temporary approval section for all approvals of mining operations since 1979. See id. According to the record, the Service has not once prepared an EA or granted a plan of operations final approval. Significantly, the federal defendants do not argue that their reliance on § 9.10(g) was legal under the circumstances.

Section 9.10(g) allows temporary approval of mining operations in two situations. First, operations may be continued "if necessary to enable timely compliance with these regulations" or other laws. This exception does not apply here. Operations are illegal unless there has been a prior EA and approval of a plan of operations. Id. § 9.9(a). Operating a claim without a permit is not necessary to, and will not, enable or further compliance with the regulations. Therefore, the court finds this regulation cannot be used to circumvent the prior approval requirement.⁶

Second, § 9.10(g) allows temporary continuation of existing operations if a halt would result in an "unreasonable economic burden or injury to the operator." In order to rely on this exception, the Service must find both (1) a continuing, existing operation, and (2) unreasonable economic injury. Given that the Service has not made findings in regards to either of these factors prior to issuing temporary approvals, the temporary approvals are contrary to the regulations and avoid.

Additionally, Congress has required agencies to comply with NEPA "to the fullest extent possible." 42 U.S.C. § 4332. The Park Service has violated NEPA by relying on § 9.10(g) to avoid its statutory duty to prepare EA's over a prolonged seven-year period for the reason it is not complying with NEPA "to the fullest extent possible." The Park Service's reliance on § 9.10(g), being contrary to the terms of NEPA, is contrary to law. Thus, the approvals under that section, under the circumstances of this action, are void.⁷

(2) Access Permits

Plaintiffs further allege that the Park Service has allowed access to inholdings without requiring permits required by 36 C.F.R. § 13.15. In response to this claim, the defendants state:

[T]he Park Service typically treats access to mining claims as part of a plan of operations. It does not require an access permit in connection with an individual mining operation unless the desired access involves construction of a new transportation system, or it is determined by the Park Service that a separate permit is required for access.

Memorandum in Opposition to Motion for Preliminary Injunction at 4.

Section 13.15 requires that the Park Service issue permits for access to inholdings. The clear implication of this regulation is that, if miners use modes of access not allowed in §§ 13.10-13.14, travel over park lands without a permit is illegal. It is also clear that the regulations require an access permit separate from the approval of the plan of operations. See id. § 13.15(d) ("36 C.F.R. 9.9, 9.10 independently require an approved plan of operations.") Finally, the regulations require that the Park Superintendent make certain determinations in reviewing access permits and designate specific routes and methods of access. Id. 13.15(b)(3), (4).

Federal defendants have violated § 13.15 by failing to separately consider and authorize access permits, by failing to require that applicants submit the application information required by § 13.15(b)(2), see Exhibit B, Plaintiffs' Reply re Motion for P.I., and by failing to designate specific routes and methods of access.

(3) Cumulative EIS

Plaintiffs also contend that defendants have failed to assess the cumulative impacts where more than one mining operation is occurring in a park. NEPA requires an EIS for cumulative actions if a number of related actions "when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement." 40 C.F.R. § 1508.25(a)(2). Federal defendants do not contest that they have failed to prepare required cumulative EIS's.

The court finds that plaintiffs have raised "substantial questions" as to whether the mining operations in Wrangell-St. Elias and Yukon-Charley Rivers National Parks will have significant cumulative environmental effects. See Thomas v. Peterson, 753 F.2d 754, 759 [15 ELR 20225] (9th Cir. 1985). In each of these parks numerous mining plans have been submitted or approved. For example, the four mining operations in Yukon-Charley Rivers National Preserve could well have a significant combined impact on the Preserve. Accordingly, the court finds that EIS's are required for the above parks.

Currently, there are only two approved operations in Gates of the Arctic National Park and Preserve. Plaintiffs have not sufficiently briefed the issue whether two mining operations alone are sufficient to have a cumulative impact within the meaning of NEPA. Cf. Kleppe v. Sierra Club, 427 U.S. 390, 410 [6 ELR 20532] ("when several proposals for . . . actions will have cumulative or synergistic environmental impact, . . . their environmental consequences must be considered together"). Accordingly, the court declines to find at this time that the failure to prepare a cumulative EIS for Gates of the Arctic violated NEPA. The court will reconsider this issue after it has been adequately briefed.

Absent unusual circumstances, an injunction is the appropriate remedy for a violation of NEPA's procedural requirements. Thomas, 753 F.2d at 764; Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 [14 ELR 20241] (9th Cir. 1984). The government argues that no preliminary injunction should be issued because of the economic injury to third parties, the miners, and because the Park Service has been in good faith in implementing the regulations. Neither of these factors justify withholding injunctive relief in the Ninth Circuit.

The court also finds that an injunction should issue based on the violations of the Park Service regulations. Under the traditional standard for a preliminary injunction, plaintiffs have shown probable success on merits and possible irreparable environmental injury to the parks. See City of Angoon v. Marsh, 749 F.2d 1413, 1415 (9th Cir. 1984). Further, the public interest favors the granting of an injunction. Because the mining at issue is occurring on park lands, lands deserving the lighest form of protection, there is a strong public interest in enforcing regulations designed to protect the environmental integrity of those lands.

In conclusion, the court finds that the Park Service's approval of submitted plans of operation must be set aside. This necessarily means that the Park Service must close down current mining operations in the national parks in Alaska until such time as adequate environmental studies have been prepared and proper access permits issued. The court realizes, however, that this cannot be accomplished overnight. Therefore, in order to allow an orderly temporary closure of mining activities, the defendant shall have 45 days from the date of this order to implement this injunction. Details of the injunction are contained in the separate Preliminary Injunction, filed this date.

Accordingly, IT IS ORDERED:

(1) THAT defendants' motion for joinder of parties is denied;

(2) THAT plaintiffs' motion for preliminary injunction is granted. A separate injunction is being issued setting forth the terms of the relief.

[15 ELR 21051]

Preliminary Injunction

THIS CAUSE comes before the court on plaintiffs' motion for preliminary injunction. The court's findings of fact and conclusions of law are set forth in a separate Memorandum and Order. Pursuant to that decision,

IT IS ORDERED:

(1) THAT all permits to conduct mining operations or temporary approvals of plans of operation for the National Park System in Alaska, being issued without observance of procedure required by law, 5 U.S.C. § 706(2)(D), are declared unlawful and void.

(2) THAT federal defendants are enjoined from granting approval to plans of operations for mining operations in the National Park System in Alaska until environmental analyses have been completed that comply with 36 C.F.R. § 9.10(b), (d) (1984) and until environmental assessments have been completed that comply with 40 C.F.R. §§ 1501.4(b) and 1508.9.

(3) THAT federal defendants are enjoined from granting temporary approvals of mining operations in the National Park System in Alaska pursuant to 36 C.F.R. § 9.10(g) absent prior court approval.

(4) THAT failure of the Regional Director to act on a proposed plan of operations shall not constitute an approval of the plan. To the extent 36 C.F.R. § 9.10(c) allows approval of plans of operations without compliance with the environmental assessment and environmental impact statement requirements of the National Environmental Policy Act, 42 U.S.C. § 4221, et seq., the regulation is contrary to law and void.

(5) THAT federal defendants shall require mine operators that require access to their claims across National Park System lands in Alaska to submit the information required by 36 C.F.R. 13.15(b)(2), unless access is by method allowed under 36 C.F.R. § 13.10-.14, or by established road.

(6) THAT when an access permit is required, the Superintendent of the relevant park shall separately consider and authorize or deny the permit application. If an access permit is approved, the Park Superintendent shall designate specific routes and methods of access.

(7) THAT the Park Service shall deny operators access over National Park Service lands off established roads absent a valid permit. This order shall not preclude the Park Superintendent from allowing access over park lands if necessary to remove mining equipment from an operation, provided that such removal shall cause no further harm to the environment (e.g., if there is adequate snow cover).

(8) THAT federal defendants are enjoined from approving or permitting any further mining operations in Wrangall-St. Elias National Park and Preserve and Yukon-Charley Rivers National Preserve until adequate environmental impact statements have been prepared that study the cumulative environmental effects of mining in those parks.

(9) THAT this injunction shall have immediate effect. Mines currently not in operation shall not be allowed to start operations until compliance with this injunction.

(10) THAT the federal defendants shall order existing mining operations in the National Park System in Alaska to shut down on October 15, 1985, such closure to continue until defendants have complied with this injunction. However, the Park Service may, in its discretion, allow reclamation work to continue after that date. Further, federal defendants shall inform all persons who have submitted plans of operations in 1985 of this injunction within 15 days of the date of this order.

(11) THAT federal defendants shall take all actions necessary to enforce and implement this injunction.

1. The National Park Service has proposed that the regulations on mining in the parks be amended. See Advanced Notice of Proposed Rulemaking, 36 C.F.R. Part 9, 49 F.R. 29415 (July 20, 1984). To date, the proposed rule amendments have not been released.

2. Because no environmental assessments have been prepared for mining operations in parks other than Denali, the amount of degradation occurring there is not as well documented. Further, the reports plaintiffs cite at pages 12-13 of their brief do not appear to be part of the record. Nevertheless, the court assumes substantial environmental damage is occurring at other parks as well.

3. The Park Service has, since the initiation of this suit, started requiring performance bonds. This issue is not before the court.

4. The Park Service must publish notice of receipt of plans in the Federal Register. 36 C.F.R. § 9.17(a). Additionally, the Service must approve water use, id. § 9.8, require miners to file performance bonds, id. § 9.13, and review and permit certain means of access to claims. Id. § 13.15; see memorandum infra. The Park Service cannot approve a plan if the operation "would significantly injure or adversely affect" federally owned lands. Id. § 9.10(a)(1).

5. The court does not address whether the requirements of the Park Service regulations and the NEPA regulations are identical.

6. This regulation would probably apply, for example, to allow reclamation work or work to prevent violation of water quality standards.

7. Section 9.10(c) states that failure of the Regional Director to act on a proposed plan of operations in a timely manner "shall constitute an approval of the plan and related permits." To the extent this section allows approvals absent prior EA's, it is contrary to the terms of NEPA and void.