Sierra Club v. Penfold

No. A86-083 (D. Alaska January 29, 1987)

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

[17 ELR 21058]

von der Heydt, J.:

Memorandum and Order

THIS CAUSE comes before the court on the parties' pending motions for reconsideration of the court's evidentiary rulings and on plaintiffs' pending motion for partial summary judgment. The court will refer to plaintiffs collectively as "Sierra Club," to federal defendants as "BLM," and to the Alaska Miners Association and the Miners Advocacy Council as "AMA."

A. Summary

The principal focus of this ruling is Sierra Club's remaining claims relating to mining operations disturbing five acres or less of federal land. In the court's view, Sierra Club has not succeeded in establishing the underlying premise of these claims: that BLM, through a de facto approval process or otherwise, sufficiently involves itself with these operations to render them "federal actions." Sierra Club therefore is not entitled to a summary judgment requiring BLM to perform environmental and subsistence studies before allowing such operations to proceed.

B. Evidentiary Motions

Sierra Club and AMA have moved for partial reconsideration of the court's October 15 evidentiary ruling; AMA seeks admissions of the Shepherd-Matthews report prepared for the Tanana Chiefs Conference, while Sierra Club seeks to rely on two of the three reports stricken pursuant to Part E of the October 15 ruling. Both movants have now satisfied the criteria for admission under FRE 803(24), and the court will rescind its order striking the exhibits in question.

Three of the arguments raised by federal defendants in opposing the motion for reconsideration merit a brief response. First, the defect in authentication pointed out in BLM's opposition brief has been corrected by an affidavit attached to plaintiffs' reply brief. Second, BLM's objection to the timeliness of plaintiffs' motion for reconsideration is insubstantial, applying too narrow a definition to the word "service" in Local Rule 5(J). Finally, BLM points out that in handling BLM's original motion tostrike the court rejected objections raised for the first time in BLM's reply brief; BLM argues that plaintiffs' and AMA's new arguments are even more tardy, and should likewise be rejected. However, the court's concern with the objections raised in the reply brief was not with their timing per se, but rather with the fact that they were raised in a manner that precluded response by the adverse party. The Rule 803(24) arguments set forth in the motions for reconsideration do not have this defect.

C. EA's for Long Term Camping Permits

Paragraph 39 of the Amended Complaint alleges that BLM fails to prepare required environmental assessments (EA's) prior to issuing long-term camping permits in the Fortymile National Wild and Scenic River corridor. Sierra Club has moved for summary judgment on this claim, seeking an injunction to halt the issuance of permits until EA's are prepared.

BLM originally held that these permits fell within a categorical exclusion, but BLM has not advanced that position in this lawsuit. Instead, the Bureau has declared that it will henceforth "do environmental assessments before approving any long-term camping permits within the Fortymile River Wild and Scenic River Corridor." Reed Smith affidavit P24. In contrast to the position it has taken [17 ELR 21059] with respect to EA's for Plans of Operations, Sierra Club has not argued that this acquiescence has failed to moot its claim. Sierra Club's reply brief simply drops the long-term camping issue. Because the claim may be moot, the court will withhold summary judgment at this time.

D. EA's for Operations Under Notices

BLM has set up a three-tiered regulatory system to govern mining on BLM lands. Casual operations causing negligible disturbance may proceed without notification to or approval of the Bureau. 43 C.F.R. § 3809.1-2. Operations disturbing more than five acres of federal land in a given calendar year must be preceded by a Plan of Operations, which BLM must approve before the operation can go forward. 43 C.F.R. § 3809.1-4. Operations falling between these extremes — disturbing five acres or less but causing more than negligible disturbance — must be preceded by a Notice describing the operation. 43 C.F.R. § 3809.1-3. According to the regulations, the miner need not obtain approval of the Notice, and an operation may commence fifteen days after the Notice is filed. Id.

The BLM Manual lists a series of steps to be taken when BLM receives a Notice. Ex. 6 to Reed Smith Aff't. In Sierra Club's view, these steps constitute a de facto approval process or regulatory process that is a federal "action" within the meaning of 40 C.F.R. §§ 1501.4(b) and 1508.18.¹ If this view is correct, BLM must prepare an environmental assessment before processing each Notice. Id. § 1501.4(b).² Sierra Club further contends that no mining can proceed until the EA is complete. These contentions are the focus of Paragraphs 33 and 35 of the Amended Complaint, on which plaintiffs have moved for partial summary judgment.

Many of the steps set forth in the Manual are entirely ministerial, and are clearly outside the ambit of the National Environmental Policy Act and its implementing regulations. See South Dakota v. Andrus, 614 F.2d 1190 [10 ELR 20181] (8th Cir.), cert. denied, 449 U.S. 822 (1980). The more substantive steps in processing a Notice may be summarized as follows:³

(1) BLM determines the mining claim and land status. In certain circumstances where the status of the claim is presently under appeal, BLM sends the miner a "decision" limiting him to "casual" operations until the appeal is decided. In other circumstances, a miner proposing to operate without a valid claim on lands not open to current entry receives a letter notifying him that if he proceeds he "will be . . . subject to a trespass action."

(2) BLM conducts a cultural and paleontological inventory and, if any potential conflicts with cultural resources are discovered, notifies the miner that the operation "may" disturb such resources in violation of statutes and regulations protecting the resources. BLM informs the miner that if such a violation in fact occurs, he will be issued a notice of noncompliance and may be subject to criminal penalties. If possible, BLM suggests ways for the miner to minimize or avoid impacts on cultural and paleontological resources.

(3) If in processing the Notice BLM becomes aware of potential conflict with threatened or endangered species, BLM notifies the miner of this possibility in the manner described in item (2).

(4) If activities described in the Notice indicate the presence of eagles, BLM notifies the miner that there is a possibility of significant adverse impact on eagles and that such impact, should it occur, would result in a notice of noncompliance and possible prosecution.

(5) If the Notice indicates that nuclear or hazardous materials will be used, BLM sends the miner a letter informing him of the need for authorizing documents. The letter warns that if a later field inspection shows that no such documents have been obtained, BLM will issue a notice of noncompliance and notify EPA and DEC.

(6) BLM reviews the Notice to determine whether the operation may affect the Coastal Zone; if so, the miner is informed that State approval may be necessary.

(7) BLM determines whether the miner, after disturbing adjacent lands under a prior Notice, has complied with 43 C.F.R. § 3809.1-4(d)(5) (notification of completion of reclamation). If he has not, he is informed that his current notice is "incomplete" for this reason.

(8) If in processing the Notice BLM becomes aware that subsistence uses may be restricted, BLM informs the miner of this possibility and states that significant restriction without compliance with ANILCA § 810 would be deemed undue degradation.⁴

At the conclusion of the above process, BLM ordinarily sends the miner a form letter (separate from any letters sent pursuant to items (1) through (6) and (8) above) stating that his notice is complete or incomplete; in the latter event, boxes are checked corresponding to the missing material.⁵ During the ensuing mining season, BLM attempts to conduct at least one field inspection of each operation under a Notice.

Council on Environmental Quality regulations define federal "actions" to include "activities . . . entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies." 40 C.F.R. § 1508.18(a). Adopting an overly mechanical approach to this definition, Sierra Club argues that the review process summarized above satisfies the "'regulation' branch" of the CEQ formulation. After all, BLM clearly "regulates" mining on BLM lands, in a broad sense of that word. But if every private activity subject to agency regulation were automatically classified as a federal action, the number of EA's required would be practically infinite. Such an interpretation of the CEQ language would trivialize NEPA. Cf. Sierra Club v. Andrus, 581 F.2d 895, 902-03 [8 ELR 20490] (D.C. Cir. 1978), rev'd in part on other grounds, 442 U.S. 347 [9 ELR 20390] (1979). It also would be a marked departure from NEPA law as it existed before the CEQ regulations became effective. See, e.g., Molokai Homesteaders Cooperative Association v. Morton, 506 F.2d 572, 580 [5 ELR 20024] (1974) ("continuing right of the Secretary of the Interior to interject himself" into activity did not render activity federal); Chesapeake Bay Foundation, Inc. v. Virginia State Water Control Board, 453 F. Supp. 122, 125-26 [8 ELR 20664] (E.D. Va. 1978) (fact that area "is subject to heavy federal regulation does not transform state actions in that area into federal actions for purposes of NEPA"). The illustrative categories of federal actions listed in part (b) of the CEQ provision suggest no such sweeping intent behind the word "regulated." Instead, the word seems to appear in the definition of federal action to encompass "programs . . . to implement a specific [agency] policy or plan." 40 C.F.R. § 1508.18(b)(3). In other words, "regulated" is used in its narrower sense of "managed," "manipulated" or "affirmatively controlled (rather than merely limited)."

Sierra Club alternatively contends that BLM "approves" operations under Notices. As noted above, CEQ regulations state that actions "approved by federal agencies" are federal actions. 40 C.F.R. § 1508.18(a). In this court's view, however, the BLM functions detailed above do not constitute approval of Notices within the meaning of the regulations.

The activities numbered (3), (4), (5), (6), and (8) in the summary are, in essence, a ministerial reminder service to encourage miners to comply with their legal responsibilities. Thus, for example, if BLM becomes aware of a possibility that protected species will be affected, BLM alerts the miner to this possibility and to the relevant legal restrictions. Likewise, if the Notice shows that hazardous materials will be used, BLM reminds the miner of the need to comply with requirements of other agencies, if he has not already done so. Such reminders could be sent to all miners, but BLM uses the Notice process to target the letters more precisely. BLM does not determine, as part of this process, whether the Noticed operation will in fact violate such laws as the Endangered Species Act, and does not inform the miner that he will be prosecuted if he proceeds as planned. Even if BLM took those additional steps, however, items (3) through (6) and (8) would be better characterized as screening for enforcement purposes rather than as an approval process. Enforcement decisions are not federal actions for purposes of the CEQ regulations. 40 C.F.R. § 1508.18(a).

Activity (2) must similarly be classified as an informational or [17 ELR 21060] enforcement function, though BLM's policing role is somewhat less passive in this instance. Activity (7) simply enforces the requirement that BLM be notified that reclamation for prior years is complete before a new operation under Notice can proceed. See 43 C.F.R. § 3809.1-3(a), (d)(5).

Only activity (1) offers some support for Sierra Club's view that BLM is in fact conducting an approval process. The difficulty with activity (1), from the standpoint of BLM's theory of the case, is that after performing the essentially ministerial task of looking up the status of the land and claim in question BLM, in specified and presumably rare circumstances, mails the miner a canned "decision." See Illustration 6 to BLM Manual. The use of the decision format in this context may reflect no more than an oversight; it is surprising, since decisions are appealable and BLM maintains that it does not make appealable decisions on Notices. In any event, the use of a decision format in atypical circumstances and in connection with an essentially ministerial determination is not strong evidence on the issue of how the Notice process as a whole should be characterized.

Apparently, BLM's only communication with the average miner whose Notice reveals no potential difficulties is a form letter notifying him that his Notice is complete. The letter reflects no determination that the planned operation has been found to comply with statutes and regulations. Nor is there any evidence that it is necessary for a miner to wait until he receives such a letter to begin mining. Conversely, the miners that Sierra Club points to as having had their Notices "rejected," see Pltfs. S.J. Reply Ex. 1, have simply received the same form letter with boxes checked to indicate items missing from the Notice.⁶ In sum, neither the positive nor the negative letters constitute substantive determinations as to the propriety of the operation, and no communication of any kind is required for the miner to proceed.⁷ The court concludes that the evidence before it fails to demonstrate that BLM approves or disapproves operations under Notices. Instead, BLM uses the Notices as the basis for limited enforcement review and to target the distribution of information, and it performs the ministerial task of ensuring that the Notices are complete. These operations do not render the subject mining operations "federal actions" within the meaning of the CEQ regulations.

This conclusion is borne out by an examination of the case law on the threshold for federal action. While the relevant decisions grow out of litigation that arose before the CEQ regulations became mandatory, they remain persuasive authority. See Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1247 n.6 [10 ELR 20163] (D.C. Cir. 1980) (squaring Ninth and D.C. Circuit approach with new regulations). The leading case on this issue in our circuit is Alaska v. Andrus, 591 F.2d 537 [9 ELR 20137] (9th Cir. 1979), where the Secretary of the Interior was found not to have performed a federal action when he refrained from exercising power to halt a wolf-kill program on federal lands. In the instant case, as in Alaska v. Andrus, "approval" of the subject action is present only in the sense that the federal agency refrains from preventing it. A notable feature of Alaska v. Andrus, moreover, was its implicit rejection of Scenic Rivers Association of Oklahoma v. Lynn, 520 F.2d 240 [5 ELR 20536] (10th Cir. 1975), rev'd on other grounds, 426 U.S. 776 [6 ELR 20528] (1976). Alaska v. Andrus, 591 F.2d at 540-41. Scenic Rivers involved the filing of disclosure statements somewhat analogous to miners' Notices. The receiving agency reviewed the statements for adequacy and frankness; if it did not act to suspend them, the statements became effective after thirty days and the filer could proceed with his project. The implication of the Ninth Circuit's discussion of Scenic Rivers is that it, unlike the Tenth Circuit, would not have found federal action for NEPA purposes under those circumstances.

In the same vein is Defenders of Wildlife, supra, where the District of Columbia Circuit joined the Ninth in holding that when the Secretary of the Interior refrained from halting a wolf kill within his jurisdiction he did not thereby make the kill a federal action. The Defenders court reasoned that an action is not federal unless an agency performs "some 'overt act' in furtherance of [the] other party's project." 627 F.2d at 1244.⁸ In processing a Notice BLM does nothing to further a miner's project.⁹ The Notice procedure contrasts with the procedure for Plans of Operations, where the miner cannot proceed without formal agency approval and approval therefore furthers his project. See National Forest Preservation Group v. Butz, 485 F.2d 408, 411-12 [3 ELR 20783] (9th Cir. 1973).

Sierra Club's motion for summary judgment must therefore be denied with respect to paragraphs 33 and 35 of the Amended Complaint.¹⁰ The court invites a cross-motion from defendants.

The court is mindful that some operations under Notices undoubtedly have highly significant environmental consequences. Perhaps these consequences should be studied. But the appropriate time for plaintiffs to raise this issue was in connection with BLM's adoption of the system embodied in 43 C.F.R. § 3809.1-3. Instead, plaintiffs appear to have acquiesced in the creation of a system that allows many miners to operate on federal land without obtaining federal approval.

E. Subsistence Reviews for Operations Under Notices

Sierra Club has also moved for summary judgment on Paragraphs 52 and 54 of the Amended Complaint. The premise of these allegations is that BLM's processing of Notices triggers a requirement for subsistence evaluations pursuant to § 810 of ANILCA, 16 U.S.C. § 3120. As both parties have assumed, the validity of this premise is governed by the same considerations discussed in the preceding section. See City of Angoon v. Hodel, 803 F.2d 1016, 1028 [17 ELR 20180] (9th Cir. 1986) (using federal action holding of Alaska v. Andrus, supra, for guidance in determining threshold for triggering § 810); City of Angoon v. Hodel, Case No. A83-234 Civil, Memorandum and Order on Subsistence and Trust Responsibility Issues [16 ELR 20775] (D. Alaska Oct. 17, 1985), slip op. at 17. Because Sierra Club has not demonstrated that BLM takes any "action" on Notices for NEPA purposes, it likewise has failed to show any "determin[ation]" that would trigger the procedural requirements of § 810. Plaintiffs' motion for partial summary judgment must therefore be denied with respect to Paragraphs 52 and 54. The court invites a cross-motion from defendants.

Accordingly, IT IS ORDERED:

(1) THAT the motion of Alaska Miners Association, et al., for reconsideration (Docket No. 129) is granted;

(2) THAT plaintiffs' November 3, 1986 cross-motion for reconsideration (Docket No. 131) is granted;

(3) THAT upon reconsideration the court modifies its order dated October 15, 1986 (Docket No. 127) as follows:

(a) in line 1 of item (2) on page 16, the number "14" is deleted;

(b) in lines 2-3 of item (2) on page 16, the words "and Exhibit 2 to Docket No. 41 (formerly Exhibit 2 to Docket No. 36)" are deleted;

(4) THAT Exhibit 25 to Docket No. 44, Exhibit 2 to Docket No. 41 (formerly Exhibit 2 to Docket No. 36), and Exhibit 14 to Docket No. 6 are admitted into evidence;

(5) THAT plaintiffs' motion for partial summary judgment (DocketNo. 36) is denied in part as set forth in Parts C through E of this memorandum and order.

1. An alternative and perhaps superior way of viewing the issue is whether BLM performs functions, such as an approval process, that federalize the underlying mining operation. 40 C.F.R. § 1508.18(a); Sierra Club v. Morton, 514 F.2d 856, 875 [5 ELR 20463] (D.C. Cir. 1975), rev'd on other grounds, 427 U.S. 390 [6 ELR 20532] (1976).

2. These Council on Environmental Quality regulations are binding on BLM pursuant to Executive Order No. 11991 (1978).

3. The summary draws both on the text of the Manual and on the appended Illustrations.

4. The reference to § 810 may reflect incorrect legal analysis on BLM's part. Cf. Part E, infra.

5. In the past, BLM has occasionally sent miners letters containing such statements as "your Notice . . . is approved and you are authorized to implement it." Pltf. S.J. Ex. 6. It has not been demonstrated for purposes of summary judgment that this is the current BLM policy and practice.

6. Sierra Club has not attempted to show a relationship between receipt of such "rejections" and any letters sent pursuant to activities (1) through (6) and (8) above.

7. In both of these respects, the handling of Notices differs substantially from the handling of Plans of Operations. Compare, e.g., Chapter V, Sections B(6) and (7) of the BLM Manual with activities (5) and (6) above.

8. Accord, Chesapeake Bay, supra, 453 F. Supp. at 125; Gemeinschaft zum Schutz des Berliner v. Marienthal, 12 ERC 1337 [9 ELR 20011] (D.D.C. 1978); cf. South Dakota v. Andrus, supra, 614 F.2d at 1194.

9. The nearest thing to an "overt act" in BLM's procedure for Notices is the Bureau's offer of advice to some miners on ways to keep their operations within legal requirements, including environmental restrictions. Sierra Club has not urged that the offering of such advice is an "overt act" of the kind envisioned in Defenders of Wildlife. In the court's view, to so hold would be counterproductive to the objectives of NEPA.

10. Because no de facto approval process has been demonstrated, the court does not reach the question whether, if such were demonstrated, Sierra Club is correct in maintaining that the appropriate remedy would necessarily include invalidation of the first sentence of 43 C.F.R. § 3809.1-3(b).