Sierra Club v. Penfold

No. A86-083 Civil (664 F. Supp. 1299) (D. Alaska May 28, 1987)

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

[17 ELR 21255]

VON DER HEYDT, District Judge.

SECOND MEMORANDUM AND ORDER ON CUMULATIVE IMPACT CLAIMS

THIS CAUSE comes before the court on the aspects of plaintiffs' motion for partial summary judgment not previously addressed or mooted, on plaintiffs' renewed motion for partial summary judgment regarding Paragraph 60 of the Amended Complaint, and on federal defendants' motion for partial summary judgment. 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." This memorandum and order should be read in conjunction with the court's May 14, 1987 "Memorandum and Order on Cumulative Impact Claims," cited hereafter as "May 14 order."

I. SUMMARY

This ruling extends the injunction previously ordered for the Birch Creek watershed to the watersheds of two other components of the National Wild and Scenic Rivers System — Beaver Creek and the Fortymile River — and to certain rivers draining into Minto Flats, northwest of Fairbanks. As in the case of the Birch Creek drainage, the injunction applies only to BLM's approval of mining operations disturbing more than five acres of federal land, and the injunction will not take effect until the end of the 1987 season. It will remain in effect until BLM evaluates the cumulative environmental effects of placer mining in the Birch Creek, Beaver Creek, and Fortymile drainages, and the cumulative impacts of mining on subsistence activities in the Birch Creek and Minto Flats watersheds. The precise nature of the required evaluations varies from watershed to watershed, as explained more fully below. The injunction will be entered separately as to each watershed, so that as soon as BLM complies with the court's orders with respect to a particular drainage, that drainage will be released from the injunction.

There is evidence that certain mines along Mosquito Fork, a tributary of the Fortymile, do not contribute appreciably to cumulative impacts in the Fortymile drainage. These mines have been excepted from the injunction.

II. BIRCH CREEK — SUBSISTENCE IMPACT

Birch Creek Village is located roughly 75 miles downstream of the Wild River segment of Birch Creek. The U.S. Fish and Wildlife Service has determined that "[m]ineral development along the Birch Creek National Wild River drainage system severely degrades the subsistence fishery for the residents of Birch Creek Village. . . ." Steese N.C.A. Resource Mgmt. Plan FEIS (Steese EIS) at 233 (comment). This evidence is uncontroverted. In addition, BLM's own River Management Plan for the Birch Creek National Wild River (at 18-19) observes that turbidity originating in the Wild River drainage interferes with use of river water for drinking by village residents. See also Steese EIS at 127-28. Finally, it is uncontroverted that Birch Creek residents have traditionally drawn heavily on the river for fish and drinking water. Declaration of Susan James. Plaintiffs argue that these cumulative impacts of placer mining trigger the notice and hearing requirements of ANILCA § 810(a), 16 U.S.C. § 3120(a), and that BLM may not approve mining operations in the Wild River watershed until it complies with the § 810(a) procedure.

The court agrees with plaintiffs. The threshold for triggering ANILCA's notice and hearing requirement is quite low: it is triggered whenever "the contemplated action may significantly restrict subsistence uses." Tribal Village of Akutan v. Hodel, 792 F.2d 1376, 1379 (9th Cir.1986) (emphasis in original), vacated on other grounds, U.S. , 107 S. Ct. 1598, 94 L. Ed. 2d 785 (1987); People of Village of Gambell v. Hodel, 774 F.2d 1414, 1421-22 (9th Cir.1985), rev'd on other grounds, U.S. , 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987); Kunaknana v. Clark, 742 F.2d 1145, 1151 (9th Cir.1984). The cumulative impacts of placer mining exceed this threshold.

BLM contends that § 810 does not require any consideration of cumulative impacts. But the Supreme Court has held that § 102(2)(C) of NEPA — which likewise makes no explicit mention of cumulative impacts — requires such consideration in certain circumstances. Kleppe v. Sierra Club, 427 U.S. 390, 409-10, 96 S. Ct. 2718, 2730, 49 L. Ed. 2d 576 (1976). NEPA case law is helpful in interpreting § 810. See Tribal Village of Akutan v. Hodel, No. A85-701 Civil (D.Alaska Jan. 13, 1986), slip op. at 3 n. 1, aff'd, 792 F.2d 1376 (9th Cir.1986), vacated on other grounds, U.S. , 107 S. Ct. 1598, 94 L. Ed. 2d 785 (1987). Defendants have suggested no reason to disregard the common-sense principles of Kleppe in this instance. The court holds that the cumulative impact outlined above requires unified analysis. See May 14 order at 1303.

BLM suggests that the injury to subsistence is not traceable to mining operations approved by BLM. In its May 14 ruling, the court demonstrated that deterioration in Birch Creek water quality was, in part, attributable to such operations. BLM's ripeness concerns are likewise addressed in that order.

Finally, BLM suggests that the appropriate remedy for a § 810 violation is remand to the agency for consideration of whether significant restriction of subsistence uses is possible. While this would ordinarily be the case, for reasons paralleling those set forth at page 1305 of the May 14 ruling the [17 ELR 21256] court finds that remand would be inappropriate here. The court will therefore require BLM to comply with the procedures set forth in ANILCA § 810(a)(1)-(3), and to incorporate its findings in the EIS previously ordered for Birch Creek. See ANILCA § 810(b), 16 U.S.C. § 3120(b). For reasons explained at pages 1305-1306 of the May 14 order, an injunction will be entered on the basis of the § 810 claim, effective October 1, 1987.

III. BEAVER CREEK

Beaver Creek is a National Wild River draining the region between the Steese and Elliott Highways, forty miles north of Fairbanks. The 127-mile Wild River segment falls almost entirely within the White Mountains National Recreation Area. The level of importance that Congress has attached to designated Wild Rivers was discussed in the May 14 order. BLM has stated that "Beaver Creek has national significance as a recreational resource." White Mountains N.R.A. Proposed Resource Management Plan FEIS (1984) ("White Mountains EIS"), at 249.

With respect to Beaver Creek, the factual record is not as well developed as it is with respect to Birch Creek. In recent years, five placer mines have operated in the upper Beaver Creek watershed, four of them under Plans of Operations. Three of the mines under Plans of Operations are located in a six-mile stretch of Nome Creek. Barnett Declaration Exh. B. This group of mines "periodically" has caused "highly turbid" conditions over a 50-mile segment of the Wild River, with a resulting periodic "decline" in fishing opportunities. White Mountains EIS at 117, 135. All of this evidence is uncontroverted, but the frequency and duration of adverse effects are not clear.

Plaintiffs seek an order requiring an EIS on cumulative impacts of placer mining in the watershed. For reasons set forth in the May 14 order, the court rejects defendants' ripeness challenge and will consider plaintiffs' claim on its merits.

The placer mines in the Beaver Creek watershed plainly have cumulative and synergistic impacts; the issue is whether the impacts are significant. If there are at least substantial questions as to their significance, BLM must prepare an EIS. See May 14 order at 1303-1304. BLM apparently has never considered the issue of cumulative impacts in preparing Environmental Assessments (EA's) on Beaver Creek watershed mines. To the extent that it has considered the issue in passing in the White Mountains EIS, it has not adequately explained the nature of the cumulative impacts nor why an EIS assessing them would not be necessary.¹ In contrast to the Birch Creek watershed, however, the limited factual record available here does not enable the court to determine that BLM could not reasonably decide under any circumstances that an EIS is unnecessary. The court will therefore permit BLM to examine the question of cumulative impacts and decide whether to prepare an EIS. See Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.1986). The court will retain jurisdiction to evaluate whether BLM has "provide[d] a reasoned explanation of whatever course it elects to pursue." Id. In the meantime, an injunction will be entered, see id.; Steamboaters v. F.E.R.C., 759 F.2d 1382, 1394 (9th Cir.1985), according to the same terms as the Birch Creek drainage.

Because the court is reviewing a BLM policy and practice of failing to evaluate cumulative impacts, rather than a particular EA, there is no 1987 EA before the court to be remanded for further work. The court suggests that BLM prepare a separate EA on cumulative impacts. Alternatively, the Bureau may include an evaluation of the need for a cumulative EIS in an EA for a Plan of Operations within the drainage, but the court does not favor this alternative because it could result in simultaneous review of the EA by two tribunals — this court and the IBLA — should approval of the particular Plan be challenged administratively. Cf. Memorandum and Order filed November 21, 1986, at 5-17.

IV. FORTYMILE RIVER

Plaintiffs also seek a cumulative EIS for the Fortymile watershed. BLM's policy and practice has been to evaluate mining in the watershed on a piecemeal basis, ignoring cumulative impacts.

The Fortymile watershed contains a sprawling network of clearwater streams classified under the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. Segments and tributaries are variously denoted "Wild," "Scenic," or "Recreational." All three classifications reflect a Congressional finding that the stretch of river in question is "remarkable" and merits substantial protection. Id. There has been placer mining in portions of the watershed for many decades; indeed, the historical interest of the rivers as early mining centers is surely part of the reason for their inclusion in the National Wild and Scenic Rivers System. Nonetheless, there has been an increase in placer mining since the Wild and Scenic designation was conferred, resulting in a substantial decline in water quality in some of the protected rivers. In 1985, nine mines under Plans of Operations functioned somewhere among the various Wild, Scenic, and Recreational river corridors. Pl.P.I.Exh. 2. Significantly, these mines were located within the corridors, in contrast to the circumstances in the Birch and Beaver Creek watersheds.² Id. Also operating that year were at least twelve suction dredges that were subject to BLM jurisdiction by virtue of associated long-term camping permits. Pl.P.I.Exh. 26. In addition, a number of operations under Notices and suction dredge operations not under BLM jurisdiction could be found somewhere in the watershed.

State Department of Environmental Conservation studies show greatly elevated turbidity levels in Wade Creek, a "Recreational" segment.³ Fortymile Mining District Annual Reports (1984 & 1985). Turbidity from four Wade Creek operations dramatically affects water quality in the "Scenic" Walker Fork and South Fork segments. Id.; River Management Plan, Fortymile N.W.S.R. (1983), at 13-14. In the Walker Fork watershed and within the South Fork and Main Stem segments other operations add to sediment load and cumulative visual impact. Id. On the other hand, the evidence suggests that four operations on the Mosquito Fork segment upstream of the Taylor Highway may not contribute appreciably to cumulative impacts on water quality in the remainder of the drainage. ADEC Annual Reports at 4 (1984) and 5 (1985).

At least four operations under Plans of Operations take place in the heavily affected Wade-Walker-South Fork-Main Stem group of corridor segments. See EA's on 3809 Plans of Mining Operations (1986) for Vernon Weaver, Smith Bench Mining, Garland Achman, and James Leach. Hence the record shows that mines subject to BLM approval and federal action contribute to the degradation of this core area of the Fortymile drainage. The record further demonstrates that the cumulative impact of these approvals, coupled with other mining operations in the area, may be significant; BLM must therefore prepare an EIS. May 14 order at 1303.

In deciding upon a remedy for BLM's NEPA violation, the court finds that the [17 ELR 21257] balance of equities is the same as for the Birch Creek watersheds, with the following exception. Because mining on Mosquito Fork above the Taylor Highway apparently does not contribute significantly to downstream environmental degradation, the balance of equities does not favor enjoining Mosquito Fork operations at this time. Placer operations in the Mosquito drainage unquestionably could have significant downstream impacts; should evidence of such impacts develop in the future, the court may extend the injunction to encompass such operations.

The injunction will apply to approvals of Plans pursuant to 43 C.F.R. § 3809.1-6 and approvals of long-term camping permits associated with mining.⁴ It will be entered according to the same terms as the injunctions for the Birch and Beaver Creek watersheds.

V. MINTO FLATS RIVERS⁵

The Tolovana and Chatanika Rivers and Goldstream Creek converge near the Native Village of Minto in Minto Flats. Uncontroverted evidence shows that village residents use the three rivers and the Tolovana below the confluence for subsistence activities. According to the village Chief, water in these rivers has become muddier in recent years, and river-based subsistence activities have suffered. The Chief links the decline in water quality to upstream placer mining.

In 1985, the combined watershed contained 28 placer mines, 17 of them on BLM land. It is not clear how many of these operations surpassed the five-acre threshold and required BLM approval. In 1986 at least three operations large enough to require approval were active in the combined watershed, two in the Chatanika headwaters 100 or more river miles upstream of confluence and one in the Goldstream headwaters 60 or more river miles upstream of the confluence. EA's on 3809 Plans of Mining Operations (1986) for Richard L. McIntosh, The Mining Company/John E. McClain, and Cacy Patton. The 1986 EA's indicate that each of these mines added to turbidity in downstream waters. Id.; see also Declaration of Cacy Patton (AMA Exh. 17.42), at 2 ("5 NTU's [of added turbidity] is presently unattainable"). All of these facts are uncontroverted.

Plaintiffs argue that BLM should be required to perform the notice and hearing procedures set forth in ANILCA § 810(a)(1)-(3). Cf supra Part II. BLM, as a matter of policy and practice, has never evaluated cumulative impacts when approving placer operations in the Minto Flats watershed, and hence has never considered whether such impacts might trigger § 810's notice and hearing requirements.

In the court's view, the first sentence of § 810(a) requires BLM to evaluate cumulative impacts in the circumstances presented here. Part II, supra. Because the factual record is not as well developed as it is for Birch Creek, however, the court declines to find as a matter of law that BLM could not reasonably determine that there is no likelihood of significant impact on subsistence uses.⁶ The court will therefore require BLM to evaluate cumulative effects and to provide a reasoned explanation for any finding that subsistence is not significantly restricted by placer mining in the combined watershed.⁷ Until such an evaluation has been completed, together with any proceedings under § 810(a)(1)-(3) connected with the evaluation, the court will enjoin Plan approvals pursuant to 43 C.F.R. § 3809.1-6. The injunction will be entered according to the same terms as the injunction for the Birch Creek drainage. The court will retain jurisdiction to review the evaluation required above.

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 plaintiffs' renewed motion for partial summary judgment regarding Paragraph 60 of the Amended Complaint (Docket No. 138) is granted;

(3) THAT federal defendants' motion for partial summary judgment (Docket No. 144) is denied.

1. Of course, the White Mountains EIS is not itself an EIS on cumulative placer mining impacts. The discussion of these impacts and the consideration of alternatives is far too generalized; moreover, there is no consideration of a no-action alternative with respect to mine approvals (i.e., no approvals). See 40 C.F.R. § 1502.14(d).

2. Accordingly, any analysis of cumulative impacts in the corridors should encompass the physical and visual impacts of the mines. Cf. May 14 order at 1303 n. 4.

3. Plaintiffs also complain of alterations to the stream course of Wade Creek, but some or all of these alterations may result from mining in the 1930's and 1940's. River Management Plan, Fortymile N.W.S.R. (1983), at 18.

4. Plaintiffs' claim with respect to cumulative impacts of long-term camping permits remains live. Cf. Memorandum and Order filed January 29, 1987, at 3-4.

The EA and EIS must, of course, consider the impacts of placer mines and suction dredging operations not subject to the injunction. May 14 order at 1303, 1306 n. 12.

5. The omission of Minto Flats from the listing of retained claims in the Summary of the court's November 21, 1986 order was an oversight.

6. Plaintiffs rely on a single, brief lay affidavit for the bulk of their argument. In contrast to Birch Creek and, to a lesser extent, the Fortymile, there is no detailed scientific data tracing the effect of particular operations or groups of operations on downstream water quality.

7. As in the case of the Beaver Creek NEPA evaluation, BLM has some discretion with respect to the packaging of this evaluation. Ordinarily, an evaluation of potential cumulative restriction should be part of the standard subsistence evaluation for each Plan approval in a watershed such as the combined watershed at issue here. BLM may prefer to prepare a separate document on cumulative restriction, to be incorporated by reference in individual Plan approvals. The latter approach would be more convenient for the court.

The appropriate geographic scope or subject matter for any notice and hearing procedure pursuant to § 810(a)(1)-(3) depends on BLM's findings with respect to which mines, if any, actually may contribute to significant subsistence restriction in the Minto Flats area. BLM must provide a reasoned explanation for exclusion of any proposed placer mining Plan of Operations within the combined watershed from any full-dress subsistence review pursuant to § 810(a)(1)-(3). Upon publication of such an explanation, BLM (or an individual miner acting pursuant to Paragraph (7) of the Minto Flats injunction) may move for appropriate modification of the injunction.