Sierra Club v. Penfold

No. A86-083 (659 F. Supp. 965) (D. Alaska May 14, 1987)

The court holds that the Bureau of Land Management (BLM) must prepare an environmental impact statement (EIS) addressing the cumulative impacts of placer mining operations that contribute incrementally to siltation and other environmental degradation in a national wild river watershed. Twenty-three placer mining operations in the watershed of Birch Creek, a component of the National Wild and Scenic River system, occupy more than five acres and require BLM approval of their plan of operations prior to commencing operations; the need for federal approval thus brings the mines within the mandates of the National Environmental Policy Act (NEPA). More than 30 other mines fall below the five-acre threshold and require only the filing of a notice with the BLM. The court first holds that the cumulative impacts of the 60 or more placer mines in the watershed require a unified analysis under NEPA. Although the individual mining operations are not functionally or economically interdependent, the sedimentation levels on the river below the mining operations are significantly above the levels above the mines, such that the state water quality standards are exceeded by two orders of magnitude. The court also holds that the cumulative impacts are "significant" within the meaning of NEPA. The court holds that an EIS prepared by the BLM in 1984 as part of its review of a national conservation area that encompasses part of the Birch Creek watershed does not satisfy the BLM's mandate to address the cumulative impacts of the placer mining operations. Only 9 of the 60 mines in question are located within the national conservation area, and the 1984 EIS did not focus on the cumulative impacts of Birch Creek placer mining.

The court holds that plaintiffs' claim is ripe for judicial review. Plaintiffs are challenging a longstanding, uniform BLM policy of approving individual placer mining operations that are larger than five acres without assessing the mines' cumulative impacts, a policy that can constitute reviewable final agency action. Moreover, denial of judicial relief would work a hardship on plaintiffs, since to obtain administrative relief plaintiffs would have to appeal each individual mine approval in the watershed. The court then holds that the BLM must prepare an EIS on the mines' cumulative impacts. Although the usual procedure is for the court to remand the matter to the agency for a determination of whether an EIS is necessary, remand is not appropriate where the record makes it clear that an EIS must be prepared. Finally, the court holds that the equities fall in favor of postponing the issuance of an injunction until October 1987. Although the public interest will suffer in the event of further degradation of a national wild river, the economic impacts on the miners of enjoining mining immediately could be severe.

[A related decision in this case appears at 17 ELR 21058.]

Counsel are listed at 17 ELR 21058.

[17 ELR 21061]

VON DER HEYDT, District Judge.

MEMORANDUM AND ORDER ON CUMULATIVE IMPACT CLAIMS

This matter is before the court on the motions and briefing of the parties relating to paragraph 43 of the Amended Complaint. In the discussion that follows, the court will refer to federal defendants collectively as "BLM," and to the Alaska Miners Association and the Miners Advocacy Council collectively as "AMA."

A. Summary

This ruling relates to BLM's approval of placer mining operations disturbing five acres or more of federal land within the Birch Creek watershed. Birch Creek is a National Wild River rising near Eagle Summit on the Steese Highway. Under the National Environmental Policy Act (NEPA), BLM is required to study the cumulative impact of the numerous placer mining operations that contribute incrementally to siltation and other environmental degradation within the Birch Creek corridor. BLM has systematically ignored this obligation. The court will therefore order BLM to prepare an Environmental Impact Statement for the watershed, addressing the issue of cumulative impacts. Once the 1987 mining season has ended, no mines disturbing more than five acres will be allowed to operate until BLM completes the required preliminary study.

B. Facts

Uncontroverted evidence shows that when Birch Creek was first evaluated for inclusion in the National Wild and Scenic River System, it had good water quality throughout its length, with the upper reaches described as "very clear." FEIS for Proposed Birch Creek National Wild River (1975), at 28. The water quality, combined with the availability of road access above and below the river segment at issue in this lawsuit, provided a recreational opportunity "unique . . . in Alaska." Id. at 48. At that time, Birch Creek was one of the state's most popular float rivers. H.R.Rep. No. 96-97, 96th Cong., 1st Sess. pt. 1 at 197 (1979). Nonetheless, BLM projected that classification as a Wild River would lead to much greater recreational use, totalling 10,700 visitor-days per year. Birch Creek N.W.R. FEIS at 50.

Congress designated 126 miles of Birch Creek a Wild River on December 2, 1980. ANILCA § 605(b); 16 U.S.C. § 1274(a)(46). Congress has defined Wild Rivers as "outstandingly remarkable," representing "vestiges of primitive America," with "waters unpolluted." 16 U.S.C. §§ 1271, 1273(b)(1). Congress's declared policy is that these rivers be protected from pollution and from degradation of esthetic and scenic values. 16 U.S.C. §§ 1271, 1281(a), 1283(c).

The 1979-80 surge in gold prices brought a corresponding surge in placer mining within the Birch Creek watershed.¹ Final Environmental Statement — Protection of River Corridors (1980), at IV-4. This surge has resulted in a degradation of water quality. E.g., id., Summary at 2. Though gold prices have since declined somewhat, the heightened level of placer mining activity has continued. Dames & Moore (for Alaska Dep't of Environmental Quality), A Water Use Assessment of Selected Alaska Stream Basins Affected by Placer Gold Mining (1986), at 3-29 to 3-30.

The effect of placer mining on the Birch Creek Wild River is carefully documented in the Dames & Moore study, whose findings are entirely uncontroverted.² The study shows that nearly all mines in the watershed add incrementally to sediment load, resulting in "sediment concentrations . . . an order of magnitude higher than would be expected during the period before mining." Id., Summary at 4 and passim. Deadwood Creek, a tributary of the Wild River portion of Birch Creek, provides an example of the effect of mining on quality of waters draining into the Wild River corridor. Water above all mining carries just 3.4 milligrams of suspended solids per liter. After passing through a group of mines — a number of which operate on BLM land under Plans of Operations — the sediment load rises to 1556 mg. per liter, a load that exceeds state water quality standards for such a creek by two orders of magnitude. Id. at Table 3-N; see Alaska Admin.Code Tit. 18, §§ 70.020(b)(1), 70.050(a); Barnett Declaration Exh. A (Pl. P.I. Exh. 7). Concentrations below any group of mines diminish as the distance from the mines increases, but it is apparent that some effect persists many tens of miles downstream. The net effect of mining on Birch Creek is that the Wild River has greatly elevated turbidity levels throughout its length. Dames & Moore, supra; Alaska Dep't of [17 ELR 21062] Fish and Game, Aquatic Habitat Assessments in Mined and Unmined Portions of the Birch Creek Watershed (1985), at 42; Steese Resource Mgmt. Plan FEIS at 110. Placer mining has also significantly altered water chemistry in portions of the watershed. Dames & Moore at 3-91 to 3-94.

Uncontroverted studies show that this decline in water quality has "greatly reduced" fish populations in Birch Creek. ADFG, Aquatic Habitat Assessments at 41-42; see also Dames & Moore at 3-94 to 3-107.³ Indeed, the river appears to be practically barren. The dramatic reduction in water quality has also deterred recreational use, which has not approached the levels originally projected for the Wild River.⁴ Dames & Moore at 3-35 to 3-38.⁵

In 1985, about sixty placer mines operated on BLM land on the Birch Creek watershed. This number appears to encompass the vast majority of mines in the basin, although there are a few mines that operate on non-BLM land. Compare Barnett Declaration (Pl. P.I. Exh. 7) with Dames & Moore at 3-31 and AMA Exhibit 17. Twenty-three of the mines on BLM land operated under Plans of Operations (reflecting a disturbance of more than five acres per year) and required BLM approval pursuant to 43 C.F.R. § 3809. The remainder fell below the five-acre threshold and operated under Notices. See 43 C.F.R. § 3809.1-3. Mines under Plans of Operations contributed to the degradation of water quality in Birch Creek. Compare, e.g., AMA Exhibits 17.2 (Goldust Mines) and 17.7 & appendices (GHD) with Dames & Moore at Table 3-N.

The foregoing review of the facts is not intended to suggest that the environmental degradation caused by placer mining is improper. Mining may produce benefits that outweigh the harm it causes. What the facts demonstrate, and what is relevant to the holding that follows, is that the large number of mines in the Birch Creek watershed have a cumulative effect on the Wild River that is significant. Operations subject to BLM approval contribute to this cumulative effect.

C. Application of Legal Standard

The National Environmental Policy Act⁶ and implementing regulations require that "when several proposals for . . . actions will have cumulative or synergistic environmental impact, . . . their environmental consequences must be considered together." Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S. Ct. 2718, 2730, 49 L. Ed. 2d 576 (1976); see also 40 C.F.R. § 1508.25. Although the Act relates only to "federal" actions, analysis of the cumulative impact of any federal action⁷ has a broader scope:

'Cumulative impact' is the impact on the environment which results from the incremental impact of the [federal] action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

40C.F.R. § 1508.7 (emphasis added). If, when these cumulative or synergistic impacts are analyzed, there are "substantial questions" as to whether the impacts may be collectively significant, an Environmental Impact Statement (EIS) must be prepared. Thomas v. Peterson, 753 F.2d 754, 759 (9th Cir.1985). This is so even if the actions are "individually minor." 40 C.F.R. § 1508.7.

The facts of the case at bar raise two central questions. First, are the impacts of the sixty or more placer mines in the Birch Creek watershed related in such a way as to require unified analysis under NEPA? The answer is plain: if ever there was a paradigm instance of "cumulative" or "synergistic" impacts, it is this case. Dozens of small operations of a single type incrementally contribute to deterioration of water quality in a common drainage stream. Cf. N.R.D.C. v. Callaway, 524 F.2d 79, 87-89 (2d Cir.1975) (successive dumpings into same area of ocean); Manatee County v. Gorsuch, 554 F. Supp. 778, 793 (M.D.Fla.1982) (same); National Wildlife Federation v. Benn, 491 F. Supp. 1234, 1248-52 (S.D.N.Y.1980) (same). A large percentage of the operations require periodic BLM approval; BLM receives formal notices describing most of the remainder. While the operations are not functionally or economically interdependent, their impacts are interdependent and require common analysis. See Fritiofson v. Alexander, 772 F.2d 1225, 1241 n. 10 (5th Cir.1985); Cady v. Morton, 527 F.2d 786, 795 (9th Cir.1975); Barney, The Programmatic Environmental Impact Statement and the National Environmental Policy Act Regulations, 16 Land & Water L.Rev. 1, 10-11 (1981).

Equally straightforward is the second question: is there at least a substantial possibility that the collective impact of mining in the watershed is "significant" within the meaning of NEPA? In answering this question, one must bear in mind Birch Creek's status as a National Wild River and its unique recreational potential. At the risk of belaboring the obvious, the court holds that the transformation of the entire 126-mile length of such a river from a clearwater stream to a silt-laden one is a significant environmental event. The evidence that mining has brought about this event is uncontroverted.⁸

D. Steese Resource Management Plan EIS

Although BLM contends that no analysis of cumulative impacts is necessary, it also maintains that it has already performed such an analysis as part of the 1984 EIS reviewing the Proposed Resource Management Plan for the Steese National Conservation Area. The Conservation Area encompasses about three-fifths of the Birch Creek Wild River corridor, but only nine of the more than sixty mines active on BLM land in the Birch Creek watershed in 1985. Barnett Declaration Exh. A, supra; Steese RMP FEIS at 110. The most heavily placer-mined tributaries are located outside the Conservation Area.

The Steese Resource Management Plan EIS was never intended to focus on the cumulative impacts of BLM approvals of mining plans in the Birch Creek watershed. Indeed, it borders on the absurd to suggest that a study encompassing only one-seventh of the relevant mines could fulfill this role. While the Steese EIS may be entirely adequate for its intended function — to review alternative plans for management of the Conservation Area — it simply cannot be stretched to perform the additional function invented by BLM's lawyers in an effort to defend this suit.

[17 ELR 21063]

E. Ripeness

BLM seeks dismissal of plaintiff's cumulative impact claim on the ground that it is not ripe for review. Although ripeness is a preliminary issue, the court has delayed its discussion until this juncture to avoid a repetitive opinion.

The question of ripeness depends, in large measure, on the kind of ruling the court will be required to make on the merits. It is "a two-fold inquiry evaluating the hardship to the parties of withholding judicial determination and evaluating whether the issues are fit for judicial determination." Seafarers International Union v. Coast Guard, 736 F.2d 19, 26 (2d Cir.1984). The latter inquiry turns on pragmatic considerations, including whether an adequate administrative record has been developed and whether the issues presented are primarily legal rather than factual. Id. The court has previously dismissed a number of plaintiffs' other claims on the grounds that they required development of an unwieldy factual record with respect to hundreds of individual mines, that relief would have to be specific to individual mines, and that plaintiffs' claims could be pursued more appropriately through case-by-case administrative appeals.⁹ Memorandum and Order filed November 21, 1986, at 14-17.

The cumulative impact claim is very different. Plaintiffs are challenging a longstanding and completely uniform BLM practice of approving operations under Plans of Operations without assessing their cumulative impacts.¹⁰ Such a uniform practice can constitute reviewable final agency action. Benn, supra, 491 F. Supp. at 1241-42. Administrative appeal would not be practical; to obtain the relief they seek administratively, plaintiffs would have to file appeals on every mine approval in the Birch Creek watershed. This would impose somehardship on plaintiffs and delay relief.¹¹ In contrast, the court can dispose of this claim in a single proceeding. Operating from a manageable factual record relating to broad rather than local impacts, the court is asked to rule on a broad legal question. Indeed, the claim at issue here is practically identical to the one entertained in Benn. The court holds that the cumulative impact claim is ripe for review.

E. Remedy

Where an agency's decision not to prepare an EIS is flawed by inadequate explanation or faulty reasoning, the usual procedure is to remand the matter to the agency for further consideration of whether an EIS is necessary. E.g., Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.1986). Remand may not be a practical alternative, however, in a Benn -type action challenging agency policies and practices rather than a specific agency decision. In any event, remand is not appropriate where the agency could have no reasonable basis for failing to prepare an EIS; in such a case, remand merely wastes agency resources and delays the inevitable. Fritiofson, supra, 772 F.2d at 1238; see also Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985) Thomas, supra, 753 F.2d at 759-61; Benn, supra, 491 F. Supp. at 1252. In the instant case, the record makes it plain that an EIS on cumulative impacts will have to be prepared. Even if remand did not simply lead to further BLM foot-dragging, work on the EIS would not begin until BLM formally concluded that the EIS was necessary. Other parties would be prejudiced by the resulting delay. The court will therefore require BLM to prepare the needed EIS.

The final question to be answered is whether an injunction should issue pending completion of the EIS. In this connection, the court must perform a "balancing of equities and hardships." TVA v. Hill, 437 U.S. 153, 193-94, 98 S. Ct. 2279, 2301, 57 L. Ed. 2d 117 (1978); see also Amoco Production Co. v. Village of Gambell, U.S. , 107 S. Ct. 1396, 1404 n. 12, 94 L. Ed. 2d 542 (1987). As the Supreme Court has noted, however,

[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.

Village of Gambell, at , 107 S. Ct. at 1404.

Here substantial harm to the environment would be a practical certainty should no injunction issue. On the other side of the ledger, however, is the impact that an injunction would have on miners. The loss of even one season would apparently force some miners into bankruptcy. AMA Exh. 17. It must be remembered that the miners are innocent parties in this dispute. The court has not made, and on the present record could not make, any finding that the miners are operating illegally. Instead, it is BLM that has violated the law by failing to comply with NEPA before approving mining operations. Finally, while the public interest would suffer in the event of further degradation of the Birch Creek Wild River segment, the public interest would likewise be harmed should the court deliver a crippling blow to the economy of the Circle Mining District.

The 1987 mining season is beginning; by now, miners will have made irretrievable financial commitments to operating this summer. The court finds that the equities favor allowing the 1987 season to go forward. An injunction will be entered effective October 1, 1987, enjoining BLM from approving any placer mining Plan of Operations in the watershed of Birch Creek National Wild River until an EIS assessing cumulative impacts has been prepared. Prior approvals will be declared void as of that date. The injunction will contain a provision allowing any miner to move the court for individual relief from the injunction if he is able to show that his mine does not contribute to cumulative environmental impacts in the Wild River corridor. See Northern Alaska Environmental Center v. Hodel, No. J85-9 Civil (D.Alaska December 4, 1985), slip op. at 7 & n. 4; Northern Alaska Environmental Center v. Hodel, 803 F.2d 466, 471 (9th Cir.1986).

Delaying entry of the injunction until the close of this season will give miners a year to prepare for its impact. Some may be able to scale down their operations to operate under Notices.¹² Of course, it is also remotely possible that BLM will complete its EIS in time for the 1988 season.

The injunction will be entered by separate document.

Accordingly, IT IS ORDERED:

(1) THAT plaintiffs' motion for partial summary judgment (Docket No. 36) is granted in part as set forth above;

(2) THAT federal defendants' motion for partial summary judgment (Docket No. 144) is denied in part as set forth above.

1. As used in this opinion, "Birch Creek watershed" refers only to streams emptying into the portion of Birch Creek designated a Wild River.

2. Certain AMA exhibits that might appear to controvert aspects of the Dames & Moore study are not admissible to show the truth of the matters they assert. See, e.g., this court's Memorandum and Order dated October 15, 1986, at 15 (addressing AMA Exhibit 15). Others have been stricken. E.g., id. at 13.

3. AMA Exhibits 17.5, 17.10, and 17.18, cited in AMA's brief, do not relate to the Birch Creek basin. No affidavit included in AMA Exhibit 17 addresses fish populations in the Wild River corridor.

4. In evaluating the cumulative impacts issue, the court has limited its consideration to impacts within the Wild River corridor caused by placer mining in the watershed (which occurs outside the corridor). The court has not considered localized effects of mining, such as removal of vegetation and alteration of stream channels, that are confined to lands outside the corridor.

5. Note that the figures in Table 3-C are for the basin as a whole, rather than for the corridor.

6. 42 U.S.C. 4321 et seq.

7. The twenty-three mining operations in the watershed approved pursuant to 43 C.F.R. § 3809.-1-6 are, of course, "federal actions" for purposes of NEPA. 40 C.F.R. § 1508.18(a).

8. Even if this evidence were not uncontroverted, plaintiffs might be entitled to summary judgment. The interplay between the standard for granting summary judgment and the "substantial questions" threshold for triggering NEPA, see Thomas, supra, is complex. For example, if uncontroverted evidence showed the existence of studies or comments indicating a significant effect on the human environment, the existence alone of those studies or comments could entitle plaintiffs to summary judgment, even if their conclusions were controverted to some degree. Whether this would be so would depend on the content of the studies, their source (studies or comments of government agencies would be especially significant), and the nature of the controverting material. The court would have to evaluate whether the very existence of the studies showed, beyond doubt, that substantial questions had been raised. See id. at 759.

9. With respect to claims relating to operations under Notices, the rationale for dismissal was somewhat different. Memorandum and Order filed November 21, 1986, at 17.

10. This practice continued through the 1986 season. E.g., Environmental Assessment on 3809 Plan of Operations — Ray Lester (F-48836) (1986).

11. BLM did not raise the issue of exhaustion in its moving papers, despite the court's invitation that it do so. November 21 order at 18-19. That issue was raised only after plaintiffs had responded to the motion. Were it timely raised, the court would probably exercise its discretion to waive exhaustion, which is not a jurisdictional doctrine in this context. See generally Assiniboine and Sioux Tribes v. Board of Oil and Gas Conservation, 792 F.2d 782, 790-91 (9th Cir.1986).

12. Although the scope of the EIS must encompass operations under Notices, see supra pp. 968-69, operations under Notices will not be affected by the injunction. See 43 C.F.R. § 3809.1-3(b). Plaintiffs claim that BLM in fact approves operations under Notices, and that these "approvals" are federal actions. In a prior order, the court has denied summary judgment to plaintiffs on this issue. The denial of summary judgment regarding Notices is now on appeal.

Should plaintiffs eventually establish that BLM's procedure for handling Notices is an approval process triggering NEPA, the court will modify the injunction to encompass mines under Notices.