Sierra Club v. Penfold

No. A86-083 Civil (664 F. Supp. 1299 at 1311) (D. Alaska July 21, 1987)

The court modifies several injunctions entered pursuant to its earlier decision, 17 ELR 21254, in which it held that the Bureau of Land Management (BLM) must prepare an environmental impact statement on the cumulative impacts of placer mining in certain national wild river watersheds and, in some instances, consider the impacts of the mining on subsistence uses. The court first holds that the final clause of the injunctions, which requires BLM to "take all actions necessary to enforce and implement" the injunction is too imprecise to satisfy the requirements of Federal Rule of Civil Procedure 65(d). The court declines to delete language maintaining the injunctions until BLM has prepared "adequate" environmental and subsistence studies. Any uncertainty concerning the adequacy of the studies can be referred to the court, which has retained jurisdiction. The court changes the effective date of the injunctions from October 1 to November 15, 1987, to allow for completion of the 1987 season, but declines to make exceptions for 1988 or 1989 seasons despite the possibility of hardship on miners. The court also refuses to include language exempting "zero-discharge" mines since even mines that do not contribute to water quality degradation can have adverse effects on downstream wild river environment.

Counsel are listed at 17 ELR 21254.

[17 ELR 21257]

VON DER HEYDT, District Judge.

MEMORANDUM AND ORDER ON MODIFICATION OF INJUNCTIONS

Both BLM and AMA seek modification of the four injunctions entered on May 28, 1987. The court agrees that certain changes are in order, and will enter amended injunctions concurrently with this order. Attached as appendices "A" through "D" of this memorandum and order are copies of the injunctions showing additions and deletions.

A. Final Clause of Injunctions

BLM objects to the final clause of each of the injunctions, which reads:

THAT federal defendants shall take all [17 ELR 21258] actions necessary to enforce and implement this injunction.

According to BLM, this clause is not sufficiently "specific in terms" to comply with F.R.Civ.P. 65(d).

In Pittsburgh-Des Moines Steel Co. v. United Steelworkers of America, 633 F.2d 302, 310 (3d Cir.1980), the district court had entered an injunction requiring the unions "to employ all means at their disposal to insure that this injunction is obeyed." The circuit court found this language too imprecise to satisfy Rule 65(d). Id. Following Pittsburgh-Des Moines, the court will delete the challenged clauses. The court will modify language in the body of the injunctions (item (5) in the Fortymile injunction; item (4) inall others) to ensure that BLM remains obligated to order the closure of any mine found, at any time while the injunctions are in force, to be operating without an approved Plan of Operations where such a Plan is required by the regulations.

B. Duration of Injunctions

The injunctions are set to expire when BLM has prepared "adequate" environmental and subsistence studies. Hence, the injunction will not expire until BLM has complied with NEPA, ANILCA, and applicable regulations. BLM would like the court to delete the word "adequate," simply requiring that studies be prepared. The Bureau claims it would otherwise be required to guess whether any studies it had prepared had dissolved the injunction.

Because the large number of innocent parties involved requires that disputes be resolved as quickly as possible, and because BLM's record of compliance with NEPA and ANILCA is poor, this court has retained jurisdiction to review the adequacy of the studies.¹ Cf. Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814, 816-17 (9th Cir.1973) (jurisdiction retained to review future EIS), cert. denied, 416 U.S. 974, 94 S. Ct. 2002, 40 L. Ed. 2d 564 (1974); Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 356 (8th Cir.1972) (same). Any uncertainty regarding the adequacy of the studies can therefore be resolved quickly by application to the court. Moreover, it is standard in NEPA cases for courts to provide that a permanent injunction will remain in effect not only until an environmental study has been prepared but until an adequate study has been prepared. E.g., Minnesota PIRG v. Butz, 401 F. Supp. 1276, 1333 (D.Minn. 1975), rev'd in part on other grounds, 541 F.2d 1292 (8th Cir.1976), cert. denied, 430 U.S. 922, 97 S. Ct. 1340, 51 L. Ed. 2d 601 (1977). Reviewing an injunction issued by this court that contained just such a provision, the Ninth Circuit has held that "it was entirely proper for the court to enjoin further mining until proper environmental analyses are conducted." Northern Alaska Environmental Center v. Hodel, 803 F.2d 466, 471 (9th Cir.1986) (emphasis added). The court will not delete the challenged language.

C. Effective Date of Injunction

AMA argues that the injunctions should not prohibit most mining operations at all, because loss of the 1988 or 1989 seasons could bankrupt many miners.² The court was aware of the potential for severe hardship to miners when it originally balanced the equities in this case. By permitting the 1987 season to go forward despite a complete absence of the NEPA or ANILCA § 810 prerequisites, the court believes it exercised its maximum discretion in favor of the miners.

AMA correctly observes that the court intended to allow completion of work under 1987 Plans of Operations. The Association has provided new evidence showing that an October 1 closing date would cut short some of these operations. The court will therefore change the effective date of the injunctions to November 15, ensuring that operations approved for this year can be completed in an orderly manner.

D. Mines Having No Impact on Water Quality

Observing that the court's primary concern in entering these injunctions was water quality, BLM has suggested new language that would exempt "zero-discharge" mines, such as mines using a recycle system. It is not clear whether any such mines exist in the area covered by the injunctions, or, if so, what their precise locations and physical characteristics are. BLM's proposal ignores the fact that even a "zero-discharge" placer mine can affect the environment of a downstream Wild and Scenic River corridor by, for example, destroying tributary fish habitat. As the record now stands, there is no basis for narrowing the scope of the injunctions.

E. Exhaustion of Remedies

BLM has renewed an exhaustion of remedies argument that has been rejected by the court both on procedural grounds and on its merits. May 14, 1987 memorandum and order at n. 11; June 23, 1987 memorandum and order at 7. The court declines to reconsider this issue.

Accordingly, IT IS ORDERED:

(1) THAT federal defendants' Motion for Reconsideration and Amendment of Injunctions (Docket No. 199) is granted in part and denied in part as set forth above;

(2) THAT Alaska Miners Association's Motion for Reconsideration (Docket No. 201) is granted;

(3) THAT upon reconsideration the court modifies the injunctions entered in this action as set forth in Appendices A through D of this memorandum and order.

APPENDIX A

INJUNCTION FOR BIRCH CREEK WATERSHED

Pursuant to this court's [Memorandum] memoranda and [Order on Cumulative Impact Claims] orders filed May 14, May 28, and July 21, 1987, [and this court's Memorandum and Order filed May 28, 1987,] IT IS ORDERED:

(1) THAT this injunction shall apply to all lands and waters draining into that part of Birch Creek designated a component of the National Wild and Scenic Rivers System pursuant to 16 U.S.C. § 1274(a)(46), which lands and waters shall be referred to herein as "the Birch Creek watershed";

(2) THAT effective [October 1] November 15, 1987, federal defendants are enjoined from approving, pursuant to 43 C.F.R. § 3809.1-6(a) or otherwise, any Plan of Operations for any placer mine within the Birch Creek watershed;

(3) THAT effective [October 1] November 15, 1987, any prior approval of any Plan of Operations for any placer mine within the Birch Creek watershed shall be void;

(4) THAT the Bureau of Land Management shall order [existing] any placer mining [operations under Plans of Operations within the Birch Creek watershed] operation within the Birch Creek Watershed requiring a Plan of Operations under 43 C.F.R. § 3809.1-4 to shut down prior to [October 1] November 15, 1987, such closure to continue until this injunction has expired;

(5) THAT, notwithstanding item (4) or any other provision of this injunction, the Bureau of Land Management may, inits discretion, allow reclamation work to continue or commence after [October 1] November 15, 1987;

(6) THAT this injunction shall remain in effect until

(a) an adequate Environmental Impact Statement has been prepared studying any cumulative or synergistic environmental effects of placer mining within the Birch Creek Watershed upon the Birch Creek component of the National Wild and Scenic Rivers System, AND

(b) the Bureau of Land Management has [17 ELR 21259] adequately performed the procedures set forth in 16 U.S.C. § 3120(a)(1) through (3) and 16 U.S.C. § 3120(b) with respect to any cumulative or synergistic restriction of subsistence uses, needs, or resources caused by placer mining within the Birch Creek Watershed;

(7) THAT this court shall retain jurisdiction to review the adequacy of the Environmental Impact Statement and subsistence review referred to in item (6);

[(7)] (8) THAT any miner, upon colorable showing that his operation does not contribute to the cumulative or synergistic environmental effects or restriction of subsistence uses, needs, or resources referred to in item (6), may move to be granted limited intervenor status for the sole purpose of moving for individual relief from this injunction;

[(8)] (9) THAT no later than [June 26] August 7, 1987, the Bureau of Land Management shall inform all persons of this injunction who have submitted 1987 Plans of Operations for placer mines within the Birch Creek watershed[;].

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

APPENDIX B

INJUNCTION FOR BEAVER CREEK WATERSHED

Pursuant to [Part III of] this court's [memorandum] memoranda and [order] orders filed May 28 and July 21, 1987, IT IS ORDERED:

(1) THAT this injunction shall apply to all lands and waters draining into that part of Beaver Creek designated a component of the National Wild and Scenic Rivers System pursuant to 16 U.S.C. § 1274(a)(45), which lands and waters shall be referred to herein as "the Beaver Creek watershed";

(3) THAT effective [October 1] November 15, 1987, any prior approval of any Plan of Operations for any placer mine within the Beaver Creek watershed shall be void;

(4) THAT the Bureau of Land Management shall order [existing] any placer mining [operations under Plans of Operations within the Beaver Creek watershed] operation within the Beaver Creek watershed requiring a Plan of Operations under 43 C.F.R. § 3809.1-4 to shut down prior to [October 1] November 15, 1987, such closure to continue until this injunction has expired;

(5) THAT, notwithstanding item (4) or any other provision of this injunction, the Bureau of Land Management may, in its discretion, allow reclamation work to continue or commence after [October 1] November 15, 1987;

(6) THAT this injunction shall remain in effect until

(a) the Bureau of Land Management has adequately considered whether it must prepare an Environmental Impact Statement (EIS) on cumulative or synergistic environmental effects of placer mining within the Beaver Creek watershed upon the Beaver Creek component of the National Wild and Scenic Rivers System, and has decided that no EIS is necessary, and has provided a reasoned explanation for its decision, OR

(b) the Bureau of Land Management has prepared an adequate EIS studying any cumulative or synergistic environmental effects of placer mining within the Beaver Creek watershed upon the Beaver Creek component of the National Wild and Scenic Rivers System;

(7) THAT this court shall retain jurisdiction to review the adequacy of any EIS or reasoned explanation prepared pursuant to item (6);

[(7)] (8) THAT any miner, upon colorable showing that his operation does not contribute to the cumulative or synergistic environmental effects referred to in item (6), may move to be granted limited intervenor status for the sole purpose of moving for individual relief from this injunction;

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

APPENDIX C

INJUNCTION FOR FORTYMILE WATERSHED

Pursuant to [Part IV of] this court's [memorandum] memoranda and [order] orders filed May 28 and July 21, 1987, IT IS ORDERED:

(1) THAT this injunction shall apply to all lands and waters draining into those parts of the Fortymile River and its tributaries designated components of the National Wild and Scenic Rivers System pursuant to 16 U.S.C. § 1274(a)(48), with the exclusion of those lands and waters draining into the Mosquito Fork segment of the Fortymile National Wild and Scenic River upstream of the Taylor Highway bridge;

(2) THAT the lands and waters described in item (1) shall hereinafter be referred to as "the Fortymile watershed";

(3) THAT effective [October 1] November 15, 1987, federal defendants are enjoined from approving, pursuant to 43 C.F.R. 3809.1-6(a) or otherwise, any Plan of Operations for any placer mine within the Fortymile watershed;

(4) THAT effective [October 1] November 15, 1987, any prior approval of any Plan of Operations for any placer mine within the Fortymile watershed shall be void;

(5) THAT the Bureau of Land Management shall order [existing] any placer mining [operations under Plans of Operations within the Fortymile watershed] operation within the Fortymile watershed requiring a Plan of Operations under 43 C.F.R. 3809.1-4 to shut down prior to [October 1] November 15, 1987, such closure to continue until this injunction has expired;

(6) THAT, notwithstanding, item (5) or any other provision of this injunction, the Bureau of Land Management may, in its discretion, allow reclamation work to continue or commence after [October 1] November 15, 1987;

(7) THAT effective [October 1] November 15, 1987, federal defendants are enjoined from approving long-term camping permits associated with placer mining within the Fortymile watershed;

(8) THAT effective [October 1] November 15, 1987, any previously issued long-term camping permit associated with placer mining within the Fortymile watershed shall be void;

(9) THAT the Bureau of Land Management shall order [existing] any long-term [camps] camp associated with placer mining within the Fortymile watershed to shut down prior to [October 1] November 15, 1987, such closure to continue until this injunction has expired;

(10) THAT this injunction shall remain in effect until an adequate Environmental Impact Statement has been prepared studying any cumulative or synergistic environmental effects of placer mining within the Fortymile watershed or within the Mosquito Fork drainage upon those parts of the Fortymile River and its tributaries designated components of the National Wild and Scenic Rivers System pursuant to 16 U.S.C. § 1274(a)(48);

(11) THAT this court shall retain jurisdiction to review the adequacy of the Environmental Impact Statement referred to in item (10);

[(11)] (12) THAT any miner, upon colorable showing that his operation does not contribute to the cumulative or synergistic [17 ELR 21260] environmental effects referred to in item (10), may move to be granted limited intervenor status for the sole purpose of moving for individual relief from this injunction;

[(12)] (13) THAT no later than June 26, 1987, the Bureau of Land Management shall inform all persons of this injunction who have submitted 1987 Plans of Operations for placer mines within the Fortymile watershed, or who have applied for long-term camping permits for 1987 for camping associated with placer mining within the Fortymile watershed[;].

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

APPENDIX D

INJUNCTION FOR MINTO FLATS WATERSHED

Pursuant to [Part V of] this court's [Memorandum] memoranda and [Order] orders filed May 28 and July 21, 1987, IT IS ORDERED:

(1) THAT this injunction shall apply to all lands and waters draining into the Tolovana River, the Chatanika River, or Goldstream Creek, which lands and waters shall hereafter be referred to as "the Minto Flats watershed";

(3) THAT effective [October 1] November 15, 1987, any prior approval of any Plan of Operations for any placer mine within the Minto Flats watershed shall be void;

(4) THAT the Bureau of Land Management shall order [existing] any placer mining [operations under Plans of Operations within the Minto Flats watershed] operation within the Minto Flats watershed requiring a Plan of Operations under 43 C.F.R. § 3809.1-4 to shut down prior to [October 1] November 15, 1987, such closure to continue until this injunction has expired;

(5) THAT, notwithstanding item (4) or any other provision of this injunction, the Bureau of Land Management may, in its discretion, allow reclamation work to continue or commence after [October 1] November 15, 1987;

(6) THAT this injunction shall remain in effect until

(a) the Bureau of Land Management has (i) adequately evaluated, pursuant to 16 U.S.C. § 3120, any cumulative or synergistic effect of placer mining within the Minto Flats watershed upon subsistence uses and needs, has (ii) concluded that such effect will not significantly restrict subsistence uses, and has (iii) provided a reasoned explanation for its conclusion, OR

(b) the Bureau of Land Management has adequately performed the procedures set forth in 16 U.S.C. § 3120(a)(1) through (3) with respect to any cumulative or synergistic restriction of subsistence uses, needs, or resources caused by placer mining within the Minto Flats watershed;

(7) THAT this court shall retain jurisdiction to review the adequacy of any procedures performed pursuant to item (6);

[(7)] (8) THAT any miner, upon colorable showing that his operation does not contribute to the cumulative or synergistic restriction of or effect upon subsistence uses, needs, or resources referred to in item (6), may move to be granted limited intervenor status for the sole purpose of moving for individual relief from this injunction;

[(8)] (9) THAT no later than [June 26] (August 7), 1987, the Bureau of Land Management shall inform all persons of this injunction who have submitted 1987 Plans of Operations for placer mines within the Minto Flats watershed[;].

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

1. At the suggestion of BLM, a term has been added to the injunctions expressly retaining such jurisdiction.

2. BLM states that it does not expect to complete any of the required studies until December of 1988. With respect to the Minto Flats drainage, this estimated schedule strikes the court as astonishingly slow.