18 ELR 20463 -- Sierra Club v. Penfold

Sierra Club v. Penfold

No. A86-083-Civ (D. Alaska November 6, 1987)

The court invalidates a Bureau of Land Management (BLM) regulation exempting mines on public lands in Alaska of less than five acres from environmental review under the National Environmental Policy Act (NEPA) and the Alaska National Interest Lands Conservation Act (ANILCA). In 1980, BLM promulgated a regulation providing that mines causing a distrurbance of five acres or less may operate under a notice of intent (notice regulation), without prior BLM approval. In 1983, BLM amended a related regulation governing mines of more than five acres that extended the notice regulation's coverage to certain other public lands in Alaska. The court first holds that it may review the 1983 amendment. Although the court of appeals did not mention the 1983 amendment in its remand order, the language of the order is nonrestrictive and it is unlikely that the court of appeals intended to prohibit this court from considering a regulation that controls the applicability of the notice regulation. The court then holds that the new claims pursued by plaintiffs are not encompassed by their original 1986 complaint. Plaintiffs' new NEPA and ANILCA claims alleging procedural deficiencies in rulemaking are quite different from plaintiffs' original allegations that BLM's policies and practices of not preparing environmental assessments (EAs) or subsistence evaluations for mines of less than five acres violated NEPA and ANILCA. The court allows plaintiffs to amend their complaint to add new substantive challenges to the notice regulation under the Administrative Procedure Act (APA) and the Federal Land Policy and Management Act (FLPMA). The court holds that laches does not apply, even though plaintiffs did not challenge the 1980 regulation or the 1983 amendment for several years, since laches would not operate in any case to a challenge to the regulations as they apply to future mining operations. The court strikes from the proposed new complaint claims that the court has previously dismissed. The court holds that the new procedural NEPA and ANILCA claims do not relate back to the original complaint within the meaning of Federal Rule of Civil Procedure 15(c). The original complaint focused on BLM's current policies and practices, whereas the new claims focus on rulemaking procedures conducted prior to 1980. The court also holds that the procedural claims relating to the 1980 regulation are barred by the six-year statute of limitations period for actions against the United States in 28 U.S.C. § 2401(a), finding no against the United States in 28 U.S.C. § 2401(a), finding no reason to exclude regulations from the statute. The statute does not apply to plaintiffs' procedural claims regarding the 1983 amendment or their substantive claims, however.

Turning to the merits, the court holds that the BLM's establishment in the regulations of a distinction between mines of more than [18 ELR 20464] and mines of less than five acres is rational, since there is a logical relationship between the amount of land a mine disturbs and the environmental impacts of a mine. The court holds that the regulations are not arbitrary or capricious under the APA for failing to make a distinction between isolated small mines and small mines operating in proximity to other mines. The court holds that BLM's mandate under FLPMA § 302(b) to prevent unnecessary or undue degradation of public lands does not require the agency to conduct prior review of all commercial mining operations regardless of mine size. Even if some mines cause unnecessary and undue degradation, the regulatory scheme itself does not necessarily violate FLPMA § 302(b)'s mandate. The efficiencies of a system utilizing notices of intent may also outweigh the benefits to be gained from a prior review system.

The court notes that no parties dispute that the 1983 amendment's extension of the notice system to additional public lands in Alaska was a federal action within the meaning of NEPA, requiring preparation of an EA, and that the rulemaking required a subsistence evaluation under ANILCA § 810. The court declines to apply the doctrine of laches despite plaintiffs' delay, since it can adjust the remedy to accommodate the undesirable consequences of the delay. The courts holds that the 1983 extension of the notice regulation's coverage is invalid, since neither an EA nor a subsistence evaluation were prepared.

[Earlier decisions from this litigation are published at 17 ELR 21058, 21061, 21254, and 21257.]

Counsel for Plaintiff
Lauri J. Adams
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendant
Dean Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216

von der Heydt, J.:

Memorandum and Order

THIS MATTER is before the court on 60-day remand from the Ninth Circuit Court of Appeals. Following the remand, plaintiffs moved to amend their complaint and moved for partial summary judgment or preliminary injunction.^[1] Alaska Miners Association (AMA) has moved to strike some of plaintiffs' supporting exhibits. The court now addresses these motions.

I. Procedural History

In this action a coalition of environmental and Native groups has challenged the policies and practices of the Bureau of Land Management (BLM) with respect to the roughly 300 placer gold mines operating on BLM land in Alaska. One group of claims relates to operations disturbing more than five acres of federal land per year and requiring a Plan of Operations under 43 C.F.R. § 3809.1-4. There are about 60 such operations in the state. Some of those operations are the subject of a group of injunctions entered on July 21, 1987. See Sierra Club v. Penfold, 664 F. Supp. 1299 [17 ELR 21254] (D. Alaska 1987). Another group of claims relates to the 240 mining operations that fall below the five-acre threshhold and that have been permitted to operate under Notices. See 43 C.F.R. § 3809.1-3. Operations under Notices are the subject of today's order.

Portions of three previous orders also focused on Operations under Notices. Pursuant to Part B(3) of the court's November 21, 1986 order and Part I(A) of the court's June 23, 1987 ruling, a number of claims relating to such operations were dismissed. The court addressed several more substantial claims, contained in Paragraphs 33, 35, 52 and 54 of the February 18, 1986 complaint, in a memorandum and order filed January 29, 1987. That order did not finally dispose of these claims, but denied summary judgment to plaintiffs. The January 29 order was the subject of the first of several appeals to the Circuit Court and the focus of the appellate arguments held on August 6. The Circuit Court's subsequent order of remand seems to have been an outgrowth of this first appeal.

The bulk of the January 29 order was devoted to Paragraphs 33 and 35 of the February 18, 1986 complaint. The contention of these paragraphs is that BLM should be required to prepare an environmental assessment (EA) for each mining operation covered by the Notice procedure, and that BLM should be required to stay each such operation pending completion of the relevant EA. This contention is built on 40 C.F.R. § 1501.4(b), a CEQ regulation, which requires the preparation of EAs for certain federal actions not immediately classifiable as "major" or minor for purposes of the National Environmental Policy Act (NEPA).

BLM has never prepared EAs for operations under Notices, arguing that it takes no federal action on Notices. In essence, BLM's position is that miners under the Notice regulation simply notify BLM that they intend to proceed with operations during a given calendar year. According to this view, BLM may use the Notice to identify potential law violations, but it does not approve or disapprove Notices. Indeed, § 3809.1-3(b) states that no approval is required before a Notice operation can commence.

Plaintiffs argued at the District Court level that BLM is conducting a de facto approval process that constitutes federal action and triggers the 40 C.F.R. § 1501.4(b) requirement for an EA.^[2] As will be seen,^[3] this theory necessarily entailed an indirect and partial challenge to the validity of § 3809.1-3 as applied, on the ground that the regulation was being applied in a manner that violated NEPA. Broadly speaking, however, plaintiffs' arguments at the District Court level were directed at BLM's policies and practices under § 3809.1-3 and associated regulations, rather than at the regulations themselves. The record makes it clear that the decision to frame the suit in this manner was a deliberate one.

On appeal, plaintiffs apparently suggested that their challenge to policies and practices could be construed "to run against the regulations." See Exh. 1 to Docket No. 235, at 23. This suggestion apparently went far beyond this court's view, alluded to above, that plaintiffs' claims represented an indirect substantive challenge to portions of § 3809.1-3 as applied. Instead, plaintiffs raised new challenges focusing on the procedures followed in promulgating the regulation. Of course, the administrative record of promulgation was not part of the record of the case; it would not have been possible for the Circuit Court to evaluate these claims. Good fortune was with the plaintiffs, however. Rather than reject the new contentions, the Circuit Court remanded the case so that plaintiffs could start over.

II. Scope of the Remand

The order of remand stated, in relevant part:

This case is remanded to the district court for a period of 60 days with instructions to reopen the proceedings. The 60 days with instructions to reopen the proceedings. The district court is requested to permit the parties to consider the agency record and to address the validity of the mining regulation itself as set forth in 43 C.F.R. § 3809.1-3.

The parties disagree over the range ofissues the court may consider on remand. Each party seeks a narrow construction in some contexts and a broad one in others.

BLM and AMA have raised jurisdictional and procedural bars to some of plaintiffs' challenges to § 3809.1-3 and related regulations. There is no evidence that any of these defenses was considered prior to remand.^[4] Plaintiffs nonetheless contend that the two sentences quoted above must be treated as a suspension of the rules of pleading and a rejection of every procedural or jurisdictional defense that could conceivably be interposed to any challenge. The [18 ELR 20465] court rejected this view in a memorandum and order filed September 18, 1987 (Docket No. 237).

The parties reverse positions on the subject of challenges to regulations other than 43 C.F.R. § 3809.1-3, the regulation mentioned in the order of remand. In fact, § 3809.1-3 is not the only regulation important to the Notice system. Certain 1983 amendments to § 3809.1-4 greatly expanded the number of Alaskan mines covered by § 3809.1-3. Defendants take the position that the court cannot evaluate these amendments because the Circuit Court did not mention § 3809.1-4 in its remand order; plaintiffs, of course, take the opposite position. The court again favors a broad reading of the order of remand, for two reasons. First, if one assumes the Court of Appeals gave any thought to its order of remand, it is unlikely that it intended to permit this court to review § 3809.1-3 but not the neighboring regulation that controls the applicability of § 3809.1-3. Second, the language of the remand order is nonrestrictive. The order does not say, for example, "This case is remanded to the district court for the sole purpose of considering the validity of 43 C.F.R. § 3809.1-3." Instead, the order is divided into two sentences. The first remands the case with instructions to reopen the proceedings. This sentence vests the district court with jurisdiction over every aspect of the case for a period of sixty days. The second sentence requests that certain new claims be explored during the course of the remand. It does not say that those are the only matters that may be considered.

III. Motion for Leave to Amend Complaint

A. Are the New Claims Encompassed by the Old Complaint?

In addressing plaintiffs' motion to amend complaint, the court must first determine whether amendment is necessary at all. Plaintiffs contend that they have moved to amend only through an abundance of caution, and that the claims they are pursuing on remand are in fact within the scope of the February 18, 1986 complaint.

1. New Procedural NEPA Claims

The February 18 complaint contained the following NEPA allegations with regard to operations under Notices:

32. Pursuant to NEPA and its implementing regulations, BLM is required to prepare environmental assessments when it reviews and approves mining operations under notices. See 40 C.F.R. § 1501.4.

33. As a matter of policy and practice, however, BLM does not prepare environmental assessments when it reviews and approves mining operations under notices.

34. Pursuant to NEPA and its implementing regulations, BLM is required to stay mining operations under notices until it completes the environmental assessments of the operations. Id. § 1506.1(b).

35. As a matter of policy and practice, however, BLM does not stay mining operations under notices until it completes the environmental assessments of the operations.

"Policy and practice" is a term of art often employed in environmental litigation in this district and elsewhere to refer to broadlya-applied agency procedures not formally set forth in a regulation. E.g., "Memorandum in Support of Motion to Alter Judgment" (Docket No. 140), at 20-21. The February 18 complaint seeks a declaration that these alleged policies and practices are unlawful, an order enjoining BLM from implementing the illegal policies and practices, and an order rescinding approvals of operations issued under the illegal policies and practices.

The procedural NEPA allegations to be addressed on remand are best summarized in the language of the proposed Second Amended Complaint:

90. On November 26, 1980, BLM promulgated final mining regulations for the management of mining on the public lands. 45 fed. Reg. 78902 (1980)[.] One component of these regulations was the so-called "notice regulation," which is now codified at 43 C.F.R. § 3809.1-3. In conjunction with the regulation that is now codified at 43 C.F.R. § 3809.1-4, the notice regulation provided that mines that cause a cumulative disturbance of five acres or less during any calendar year may operate under a notice, without prior BLM approval, unless the operations take place on certain specialcategory lands. The notice regulation became effective on January 1, 1981.

91. On March 2, 1983, BLM amended the mining regulations to expand their application in Alaska. 48 Fed. Reg. 8814 (1983). These amendments made the notice regulation applicable for the first time to areas withdrawn from the operation of the mining laws and areas limited or closed to off-road vehicle use. The amendments became effective on April 1, 1983.

92. The 1980 promulgation of the notice regulation violated the National Environmental Policy Act (NEPA). 42 U.S.C. § 4321 et seq. The final environmental impact statement prepared for the regulation was inadequate under the applicable NEPA standards.

93. The 1983 amendment of the notice regulation violated NEPA. The environmental assessment prepared for the amendment was inadequate under the applicable NEPA standards. BLM should have prepared a full environmental impact statement under NEPA at that time.

The proposed complaint seeks a declaration that 43 C.F.R. § 3809.1-3 is invalid and an order requiring BLM "to stay all mines proposing to operate under the notice regulation." Plaintiffs take the position that the new allegations represent only new legal theories supporting the same relief, and that they are not so distinct as to be separate causes of action from those alleged originally.

In fact, the relief sought is substantially different. A declaration that a regulation is invalid is quite dissimilar in effect from a declaration that certain policies and practices are invalid. More fundamentally, the entire factual context of the two claims is different. It must be borne in mind that the proposed challenge to the regulation is procedural: to evaluate it, the parties must assemble and the court must evaluate evidence of events surounding the promulgation of the regulation in 1980 and of the amendments in 1983. The challenge to policies and practices, by contrast, focuses on events that are going on today. Finally, the earlier complaint fails to allege a key element of any action seeking judicial review of an EA or an Environmental Impact Statement (EIS): it does not allege that the EA or EIS was inadequate.

Even if the February 19, 1986 complaint were read to encompass a procedural challenge to the regulation, any such challenge was subsequently waived or withdrawn. Early in the litigation, BLM served plaintiffs with an interrogatory requesting that plaintiffs identify the comments they had submitted during the 1980 rulemaking. On May 6, 1986 plaintiffs responded:

Plaintiff is challenging the validity or lawfulness of only 43 C.F.R. § 3809.1-9(a). Pursuant to agreement of counsel, plaintiff shall answer this interrogatory as to that regulation within 30 days.

Section 3809.1-9(a) is a regulation on bonding procedure. Thirty days after submitting the answer quoted above, plaintiffs provided the promised supplemental answer as to § 3809.1-9(a).^[5] The answer quoted above was not modified, however.^[6] Moreover, all parties then proceeded with this litigation in full conformity with that answer. BLM did not lodge the administrative record of the rulemaking on § 3809.1-3. Plaintiffs did not object to the failure to lodge the record. Plaintiffs moved for summary judgment purely on the basis of their de facto approval process theory, never suggesting that the underlying regulation had been promulgated in a procedurally defective manner. When summary judgment was denied, plaintiffs appealed and informed the Circuit Court that "plaintiffs can have no expectation of obtaining the relief they seek through subsequent proceedings before the district court," Plaintiffs-Appellants' Opposition to Alaska Miners Association's Motion to Dismiss, at 5-6, a statement inconsistent with the view that other avenues remained to be litigated under the rubric of Paragraphs 32-35.

Plaintiffs contend that "it is 'quite wrong' to argue that the plaintiffs' [sic] may not amend their complaint in a manner inconsistent with the prior answers." Plaintiffs' Memorandum in Support of Motion for Leave to Amend, at 9, citing 8 Wright & Miller, Federal Practice and Procedure § 2181 at 576 (1970). This contention [18 ELR 20466] is probably true as far as it goes, and the court will not bar amendment of the complaint on the basis of the interrogatory answer. See infra Part IIIB (barring amendment on other grounds). The unamended answer remains binding, however, as a construction of the existing complaint. This is especially so where, as here, parties (or, more properly, members of one of the parties) have relied upon the fact that the general validity of § 3809.1-3 was unchallenged.^[7] In effect, plaintiffs are estopped to assert that the February 18, 1986 complaint raised a procedural challenge to the promulgation of any regulation other than the bonding regulation. See Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (E.D. Pa. 1956), cited with approval in Advisory Committee Notes on 1970 amendment to F.R. Civ. P. 33(b).

This conclusion is not inconsistent with the fact that the court has construed Paragraphs 32-35 as an indirect challenge to the first sentence of § 3809.1-3(b) as applied. The indirect challenge arises as follows. Plaintiffs contend that BLM is conducting a de facto approval process on Notice mines, or alternatively that its policies and practices constitute regulation of such mines within the meaning of 40 C.F.R. § 1508.18(a). In either event, the agency should prepare an EA on each mine. 40 C.F.R. § 1501.4(b). As plaintiffs read 40 C.F.R. § 1506.1(b), BLM must stay each Notice operation until it completes the EA. February 18, 1986 Complaint P 34. But BLM has construed the first sentence of § 3809.1-3(b) as entitling the miner to proceed without awaiting approval or completion of an EA. This construction does not square with the interpretation of 40 C.F.R. § 1506.1(b) advanced in Paragraph 34.

The challenge to the regulation is apparently a challenge to the regulation as applied, because it is BLM's policies and practices within the framework of the regulation, not procedures required by the regulation, that allegedly represent federal action and trigger the need for an EA. More importantly, the challenge is a substantive one: instead of alleging that § 3809.1-3 was improperly promulgated, regulations, because it sought a listing of comments made at plaintiffs are alleging that a portion of the regulation is contrary to statute and/or contrary to controlling regulations.

A substantive challenge to a regulation focuses on wholly different transactions and occurrences from a procedural challenge to promulgation of the regulation. In this court's view, they must be treated as separate claims.^[8] This issue is more fully explored in a later section; what is relevant here is that a limited substantive challenge to § 3809.1-3 based on NEPA and CEQ regulations was necessarily at the core of the allegations in Paragraphs 32-35, and likewise was a necessary component of the theories advanced in plaintiffs' early motions for preliminary injunction and for summary judgment. Did the May 6 interrogatory answer withdraw or waive this implicit challenge? It did not. The question that elicited the answer plainly was aimed at procedural challenges to the mining regulations, because it sought a listing of comments made at the promulgation stage. The effect of the answer should be confinced to the context of the question.

In sum, the court finds that plaintiffs' procedural NEPA challenges to promulgation of the Notice regulations were not raised in the February 18, 1986 complaint, and that if they were raised they were withdrawn on May 6, 1986.^[9] Plaintiffs' fallback argument that BLM has consented to litigation of the promulgation issues is without merit. This argument is built on quotations brazenly taken out of context. For example, plaintiffs cite the following footnote in BLM's May 1987 brief on appeal:

At a minimum, if this Court determines that the validity of 43 C.F.R. 3809.1-3 is in fact at issue in this case, the Court should deny injunctive relief, as it may appropriately be considered on remand only until after the administrative record is lodged with and considered by the district court.

Brief of the Federal Appellees at 24 n.14, cited in Plaintiffs' Report Addressing Amendment of the Complaint and Proposing a Briefing Schedule (Sept. 15, 1987) at 3 n.4. What plaintiffs omit to mention is the sentence preceding the quote:

Because the Sierra Club has not challenged the five-acre rule on the administrative record, this Court must presume the regulation to be valid for purposes of considering the Sierra Club's NEPA and ANILCA claims on appeal.

Brief of the Federal Appellees, supra, at 23-24. In fact, BLM has consistently maintained that plaintiffs have not challenged the validity of the regulations in any way (a contention that the court has rejected in part, as discussed above). And plaintiffs do not even argue that the miners have consented to litigation of the promulgation issues in the absence of an appropriate allegation in the complaint.

2. New Procedural ANILCA § 810 Claims

The February 18, 1986 complaint contains the following allegations under § 810 of the Alaska National Interest Lands Conservation Act (ANILCA) with respect to operations under Notices:

51. Pursuant to title VIII of ANILCA, BLM is required to prepare subsistence evaluations when it reviews and approves mining operations under notices. Id. § 810(a).

52. As a matter of policy and practice, however, BLM does not prepare subsistence evaluations when it reviews and approves mining operations under notices.

53. Pursuant to title VIII of ANILCA, BLM is required to stay mining operations under notices until it completes the subsistence evaluations of the operations. Id.

54. As a matter of policy and practice, however, BLM does not stay mining operations under notices until it completes the subsistence evaluations of the operations.

With respect to these allegations, the February 18 complaint seeks relief parallel to that sought in connection with Paragraphs 32-35 of the same complaint.

The procedural ANILCA § 810 allegations to be addressed on remand are summarized as follows in the proposed Second Amended Complaint:

94. BLM violated the subsistence provisions of title VIII of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3111 et seq., when it allowed the 1980 regulations to go into effect. BLM did not comply with its legal obligation to conduct a subsistence evaluation under § 810(a) of ANILCA. 16 U.S.C. § 3120(a). BLM should have complied with the notice, hearing, and finding requirements of § 810(a)(1)-(3) at that time. 16 U.S.C. § 3120(a)(1)-(3).

95. BLM violated the subsistence provisions of title VIII of ANILCA when it allowed the amendment of the notice regulation to go into effect on April 1, 1983. BLM did not comply with its legal obligation to conduct a subsistence evaluation under § 810(a) of ANILCA. BLM should have complied with the notice, hearing, and finding requirements of § 810(a)(1)-(3) at that time.

The same relief is sought as for Paragraphs 90-93 of the proposed complaint.

For reasons paralleling those discussed in the preceding section, the court has determined that Paragraphs 51-54 of the February 8, 1986 complaint did not encompass a challenge to promulgation of the Notice regulations. [18 ELR 20467]

3. New Substantive Claims

On remand, plaintiffs seek to advance the following substantive challenges to the Notice regulations:

96. The 1980 promulgation of the notice regulation violated the Administrative Procedure Act (APA). 5 U.S.C. § 551 et seq. The notice regulation drew an arbitrary and capricious distinction between commercial placer mines based upon the size of the mines.

97. The 1983 amendment of the notice regulation violated the APA. The extension of the notice regulation to withdrawn and other lands was arbitrary and capricious.

98. The 1980 promulgation of the notice regulation violated the Federal Land Policy and Management Act (FLPMA). 43 U.S.C. § 1701 et seq. The notice regulation was not sufficient to prevent unnecessary or undue degradation under § 302(b) of the FLPMA. 43 U.S.C. § 1732(b). The notice regulation also violated BLM's substantive obligations under the other statutes referred to in count III.

99. The 1983 amendment of the notice regulation violated FLPMA. The extension of the notice regulation to withdrawn and other lands violated BLM's obligation under § 302(b) of FLPMA to prevent unnecessary or undue degradation. The amendment also violated BLM's substantive obligations under the other statutes referred to in count III.^[10]

Proposed Second Amended Complaint at 18-19 (footnote added). The question whether these claims are encompassed by the February 18, 1986 complaint calls for a somewhat different analysis than the one offered for procedural challenges to the regulations. The court will bypass this issue, however, because the court will find that in any event amendment of the complaint to add substantive challenges is clearly proper.

B. Leave to Amend

F. R. Civ. P. 15 provides that leave to amend "shall be freely given when justice so requires." In general, leave should be granted unless there is some affirmative reason for denying it. Among the potential reasons for denying leave to amend are two of concern in the present context: futility, and equitable considerations amounting to laches.

1. Laches

Where another party is prejudiced by unexcused delay in asserting a claim, amendment may be barred. 3 Moore's Federal Practice § 15.08[4]. Laches must be used "sparingly" in environmental litigation, however, owing to the strong and independent public interest that environmental statutes be enforced. Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 854 [12 ELR 20410] (9th Cir. 1982).

Laches is a serious consideration in this case. The regulations at issue were promulgated in 1980 and 1983. The environmental group plaintiffs were aware of the regulatory proposals and even commented on some of their alleged deficiencies, but they delayed bringing suit for years. Even when they did sue, they did not actively challenge the underlying regulatory scheme. In the meantime, miners continued to invest in Notice mines in reliance on the regulatory structure.

But the question to be asked where leave to amend is the issue is a very limited one: can laches bar any of the new claims in every respect? Here, laches may bar or limit certain claims insofar as they relate to existing Notice operations. Laches cannot operate, however, to bar a challenge to the regulations as they relate to operations that may commence in the future. Since laches cannot be a complete bar to any of the proposed claims, amendment should be permitted. The court will revisit the laches issue when it addresses the merits.

2. Futility

(a) Previously dismissed claims. The proposed complaint contains a number of claims that the court has previously dismissed. Obviously, inclusion of such claims in a new complaint would be futile. To rectify this problem, the court will strike the previously dismissed claims from the new complaint.

BLM contends that Count III has previously been dismissed in its entirety. It has not; Paragraphs 70 and 74 of that count were reinstated in the court's June 23, 1987 memorandum and order. The June 23 order contained a clerical error in that it reinstated those paragraphs without vacating the portion of the November 21, 1987 order that dismissed Count III "in [its] entirety." The court will now correct that clerical error by deleting appropriate language from the November 21 ruling.^[11] In striking claims from the proposed complaint, the court will be guided by the June 23 order.

(b) Statute of limitations. The court now turns to the six-year statute of limitation for actions against the United States codified at 28 U.S.C. § 2401(a). The question whether this statute applies to challenges to regulations is one of first impression. Likewise of first impression is the question whether any statute of limitations applies in the specific context of NEPA.^[12]

The only claims potentially subject to the statute of limitations defense are those relating to the 1980 regulations. The 1980 rulemaking occurred on November 26, 1980. Plaintiffs' original complaint was filed within the limitations period, but their Second Amended Complaint, filed today, falls outside the period. If the new claims relate back to the date of the original complaint, however, it will be unnecessary to reach the limitations issue.

(i) Relation back. Under Rule 15(c), a claim relates back if it arises out of the same "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." With respect to plaintiffs' procedural claims, this clearly is not the case. The original complaint focused on present-day conduct implementing the regulations; the new claims focus on rulemaking procedures prior to 1980. The original complaint did not even allude to the general fact situation giving rise to the new procedural claims. There was no mention of the 1980 EIS. Moreover, relation back does not operate in the case of a previously withdrawn claim. Navajo Tribe v. United States, 601 F.2d 536, 539 (Ct. Cl. 1979).

Application of relation back to the new substantive claims is a closer question. The court need not address it because, as will be seen, relation back is unnecessary to bring these claims within the limitations period.

(ii) Section 2401. There is no basis in the case law for excluding challenges to regulations from the operation of § 2401. Indeed, the Ninth Circuit has applied § 2401 to actions brought under the Administrative Procedure Act (APA). Lee v. United States, 809 F.2d 1406, 1409 n.2 (9th Cir. 1987); accord, e.g., Dougherty v. United States Navy Board, 784 F.2d 499, 501 (3d Cir. 1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir. 1985); Christian Beacon v. United States, 322 F.2d 512, 514, 516 (3d Cir. 1963). The APA is the source of the waiver of sovereign immunity for plaintiffs' challenges to the regulation. Further, our circuit has held that § 2401 limits "every action [against the United States^[13]] brought in a United States district court, save a criminal or an admiralty proceeding" -- specifically including actions in equity. Werner v. United States, 188 F.2d 266, 268 (9th Cir. 1951); Christensen v. United States, 755 F.2d 705, 707 (9th Cir. 1985).

Where a plaintiff challenges a regulation on the ground that procedures surrounding its promulgation were improper, application of a statute of limitations accords with the general purposes of such statutes. Procedural challenges to regulations often involve the taking of evidence outside the administrative record. See, e.g., Village of Akutan v. Hodel, No. A85-701 Civil (Memorandum and Order filed April 22, 1987). Where such evidence may be needed, it is unreasonable to allow a plaintiff to withhold its procedural objection until "evidence has been lost, memories have faded, and [18 ELR 20468] witnesses have disappeared." Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1944). Even if review is to be confined to the administrative records, it is not reasonable to require agencies to preserve such records for decades or unreasonable periods of time. Moreover, where longstanding regulations are subjected to review on procedural grounds there is a danger that the resulting "disturbance of society" will outweigh the benefits of righting procedural wrongs long ago committed and forgotten. Public Schools v. Walker, 76 U.S. (9 Wall.) 282, 288 (1869).

These rationales do not apply so clearly to challenges to regulations brought on substantive grounds. To the extent that evidence is required to show that a regulation is contrary to statute, for example, there is little likelihood that such evidence will be stale. The court need not decide whether § 2401 would ever apply to claims of this kind, however, because it clearly does not operate to bar plaintiffs' substantive claims in this case. "Where the wrong is continuing, the statute of limitations does not begin to run until the wrong is over and done with." Ely Lilly & Co. v. EPA, 615 F. Supp. 811, 822 (S.D. Ind. 1985). If the regulations bring about unnecessary and undue degradation under the Federal Land Policy Management Act, for example, such degradation is a continuing violation of FLPMA and plaintiffs have a continuing right to bring it to a halt. The substantive claims must be treated differently from the allegations that BLM failed to follow procedures mandated by NEPA and ANILCA § 810 in 1980; there, the statutes were violated at a fixed point more than six years in the past.

In conclusion, the court finds plaintiffs' procedural claims with respect to the 1980 rulemaking to be barred by 28 U.S.C. § 2401(a). Paragraphs 92 and 94 will be stricken from the Second Amended Complaint at the time of filing. None of the other claims in Count V of the Second Amended Complaint are barred by the statute of limitations.

3. Conclusion

The court will permit amendment adding procedural challenges to the promulgation of the 1983 amendments, as well as all claims alleging that any regulation is substantively unlawful. The court now turns to plaintiffs' motion for summary judgment or preliminary injunction, omitting discussion of claims already found to be barred by the statute of limitations.

IV. Motion for Summary Judgment or Preliminary Injunction

A. Substantive Challenges to Regulations

1. Rational Basis for Five-Acre Threshold

Plaintiffs contend that the distinction in the regulations between mines disturbing more than or less than five acres per annum has no rational basis. In support of this contention, plaintiffs argue that the size of a mine has no bearing whatsoever on its water quality impacts.

The regulations are designed, in part, to further BLM's mandate to prevent unnecessary and undue degradation of lands under its jurisdiction and to manage the vegetative surface resources and other surface resources of lands subject to unpatented mining cliams. 43 C.F.R. § 3809.0-3. Physical and visual impacts on the land surface, in addition to effects on water quality, are impacts that BLM may seek to address through these regulations. There is obviously a logical relationship between the amount of land a miner disturbs and the physical and visual impact of that mine. Accordingly, the five-acre threshold is rationally related to a legitimate aim of the regulations.

2. Failure of Regulations to Make Special Provision for Mines Contributing to Cumulative Impacts

Plaintiffs have devoted a few sentences to an argument that, even if the five-acre threshold in the regulations is rational, the regulations are arbitrary and capricious. Reply Memorandum at 7. Apparently, plaintiffs are contending that the Administrative Procedure Act creates an affirmative obligation on BLM to make a distinction in the procedures established by the regulations between small mines operating in isolation and small mines operating in close proximity to other mines. In the court's view, if the distinctions actually made in the regulation are rational, the regulation passes muster under the APA.

3. Unnecessary and Undue Degradation

According to plaintiffs, § 302(b) of FLPMA, 43 U.S.C. § 1732(b), requires BLM to conduct prior review of all commercial mining operations because such review is an "action necessary to prevent unnecessary or undue degradation of [BLM] lands." Id. To the extent that plaintiffs' argument is that BLM must conduct prior review of every activity on BLM land with potential for environmental harm,^[14] it simply is not a plausible reading of Congressional intent. Congress contemplated that many such activities would be controlled only by regulation, and that the regulations would be violated from time to time. See, e.g., FLPMA § 303, 43 U.S.C. § 1733; House Report No. 94-1163 (Sept. 28, 1976), 1976 Code Cong. & Ad. News 6175, 6188-89. That some unwanted harm will occur does not establish that the Secretary had violated his statutory mandate.

But plaintiffs may be arguing that there is something special about mining that makes prior review essential. To succeed on this basis, plaintiffs must show that the present regulatory scheme causes unnecessary and undue degradation. In approaching this task, plaintiffs have made three fundamental errors.

First, they have assumed that if they show that some mines under the regulatory scheme cause "unnecessary and undue degradation" as defined for purposes of mine-by-mine enforcement in 43 C.F.R. § 3809.0-5(k), then it follows that the scheme itself causes "unnecessary and undue degradation" within the meaning of the statute. This assumption fails because the evaluation of the Notices regulation must be broad rather than specific in focus, in keeping with Congress's realization that some individuals would violate BLM's rules.

In a related error, plaintiffs have assumed that evaluation of whether a regulatory scheme causes unnecessary and undue degradation is a one-dimensional inquiry. Accordingly, they have endeavored only to produce evidence of environmental harm. In fact, at least four factors must be evaluated: the degree of environmental harm, the extent to which it can be prevented, the expense of preventing some or all of the harm, and the economic and social benefits of the matter being evaluated -- in this case, the regulatory scheme. It may be the efficiencies of the Notice system outweigh the benefits to be gained by switching to a prior review system.^[15] In any event, by presenting evidence on only one of the factors at issue, plaintiffs have failed to carry their burden of persuasion.

Finally, plaintiffs have misunderstood the nature of the problem they face on the issue of causation. Plaintiffs rely heavily on findings in the orders this court published last spring. There, the court identified significant water quality impacts and was able to determine that mining operations under Plans of Operations contributed to some degree to those impacts. Here much more precise findings are necessary. After determining a level of pollution that would consititute unnecessary and undue degradation of rivers under BLM jurisdiction, the court would have to trace to operations under Notices at least enough effluent to represent a major contribution to the degradation. The May orders are of no help in this connection.

Because the premises of their arguments are so deeply flawed, plaintiffs have failed to demonstrate that they are entitled to summary judgment. They likewise have not established the fair chance of success on the merits that is a prerequisite for preliminary relief under the least demanding of the current Ninth Circuit tests. National Wildlife Federation v. Coston, 773 F.2d 1513, 1517 [15 ELR 21018] (9th Cir. 1985).

B. Procedural Challenges to 1983 Amendments

On the merits of the procedural NEPA and ANILCA § 810 claims regarding the 1985 rulemaking, few matters are in dispute. First, no party has contested that the extension of the Notice system to the Birch Creek watershed and other tracts was a "federal action" within the meaning of the CEQ regulations, calling for preparation of an EA to determine whether an EIS would be necessary. Nor has any party argued that the rulemaking was not an action of the type requiring a subsistence evaluation under ANILCA § 810(a). It is further undisputed that no § 810 evaluation was performed and that the EA was inadequate.^[16]

[18 ELR 20469]

The only issue in dispute is the matter of laches. As noted in an earlier section, the court retains substantial concerns in regard to the potential harm caused by plaintiffs' failure to press their new claims sooner. The court finds, however, that the undesirable consequences of this delay can be avoided by adjustment of the remedy. Since laches is disfavored in environmental litigation, this solution is preferable to outright denial of the claims. See D. Mandelker, NEPA Law and Litigation § 4:27 at 49, § 4:28 (1984).

The harm that concerns the court is to miners, who are entirely innocent in the context of plaintiffs' procedural claims. Of course, any ruling against BLM will collaterally harm miners; the injury to be eliminated is that caused by plaintiffs' delay, rather than that caused by the law or by BLM's law violations.

Because the 1983 rulemaking was procedurally defective, the 1983 amendments to § 3809 must be declared invalid. As a result of this invalidation, certain mines presently under the notice regulation will rever to treatment under the Plan of Operations system.^[17] To counteract the ill-effects of plaintiffs' delay in filing suit, the court will further declare that, for purposes only of mines that operated in the 1987 season, the 1983 amendments shall be deemed valid until November 15, 1988. In other words, existing mines that are affected by the 1983 amendments may continue to operate as though those amendments were valid until the close of the 1988 season. This provision is necessary because BLM cannot realistically be expected to accommodate greatly increased demand for EAs in time for the 1988 season; a backlog of applications would likely develop, to the prejudice of miners who have made financial commitments to the 1988 season. Gum Affidavit. By 1989, BLM will have had ample timeto increase its staff commitments to Alaska or to re-promulgate the 1983 amendments.

A brief response is necessary to plaintiffs' argument that laches considerations should be applied even more narrowly than they have been applied aboe. Plaintiffs apparently maintain that no miner should benefit from this defense unless he personally has filed an affidavit with the court setting forth his own financial investments in the 1988 season. But individual miners are not parties to this case, and it is plaintiffs who have resisted their joinder. Moreover, it is not practical to reach all individual miners in the time allotted for this decision. The court has therefore treated the miners as a group, acting on the basis of representative affidavits.

V. Motion to Strike Exhibits

The court has found it unnecessary to examine any of the exhibits objected to by AMA and BLM. The motion to strike is therefore moot.

Accordingly, IT IS ORDERED:

(1) THAT plaintiffs' motion for leave to amend complaint (Docket No. 248) is granted;

(2) THAT the Clerk file the Second Amended Complaint attached to Docket No. 248;

(3) THAT the Clerk strike Paragraphs 37, 41, 56, 58, 72, 76, 78, 80 (also numbered "78," appearing at lines 3-5 from bottom of page 15), 82-88, 92, and 94 of the Second Amended Complaint;

(4) THAT plaintiffs' motion for preliminary injunction (Docket No. 250) is denied;

(5) THAT plaintiffs' motion "for permanent injunction," deemed a motion for summary judgment (Docket No. 250), is granted in part and denied in part as set forth above;

(6) THAT plaintiffs are granted summary judgment as set forth in Part IV-B above;

(7) THAT plaintiffs may lodge an appropriate form of partial final judgment prior to expiration of the remand or upon restoration of jurisdiction to the district court;

(8) THAT AMA's motion to strike plaintiffs' exhibits (Docket No. 260) is denied as moot;

(9) THAT item (3) of this court's order filed November 21, 1986 is vacated and the following item (3) is substituted therefor: "(3) THAT Count IV of plaintiffs' Amended Complaint (Docket No. 4) is dismissed in its entirety."

1. The motion for partial summary judgment or preliminary injunction is styled as a "Motion for Preliminary or Permanent Injunction." All parties have treated the portion of the motion seeking a permanent injunction and other final relief as a motion for summary judgment.

2. As noted previously, the court denied summary judgment to plaintiffs on this issue. Contrary to the impression that has sometimes been conveyed in BLM and AMA memoranda, the court did not indicate that plaintiffs had failed to state a claim; nor did it base its ruling solely or even primarily on the first sentence of 43 C.F.R. § 3809.1-3(b). Instead, the court made a detailed review of the actual practices of BLM in conducting the Notice procedure. The court found that plaintiffs had not yet carried their burden of showing that BLM is operating (although it may not be required to do so) a system of granting or denying permits or approval that constitute federal action and trigger 40 C.F.R. § 1501.4(b).

3. See infra Part IIIA(1).

4. Indeed, some of the claims plaintiffs now seek to raise apparently were not articulated to the Court of Appeals. The appellate court could hardly have intended to foreclose defenses to claims of which it had no knowledge.

5. The supplemental answer objected to certain language in the interrogatory. Of course, plaintiffs had already answered the interrogatory with respect to all regulations other than the bonding regulations.

6. Plaintiffs' present contention that the May 6 answer was "retracted" rather than supplemented, as provided by the agreement of counsel, may represent a violation of F.R. Civ. p. 11.

7. This reliance is more fully explored in a different context in the later discussion of laches. See infra Part . What is relevant here is that any direct challenge to the promulgation of § 3809.1-3 would probably have been litigated in the parties' cross-motions for summary judgment and ruled upon by the court early in 1987. In any event, the presence of such a claim in the complaint would have been a material fact affecting the investment judgment of any Notice miner. During the period that plaintiffs affirmatively represented that they were not raising such a challenge, miners made long-term capital investments in Notice operations. E.g., Beistline Dec. P 11; Hammond Dec. P 12.

8. One of the reasons the two must be handled separately is the fact that they call for different treatment under the statute of limitations. See infra part IIIB(2)(b).

9. There is potentially a third ground for rejecting plaintiffs' contention that promulgation procedures were brought into issue by the 1986 complaint, but it is a ground this court cannot fully evaluate without access to the complete record on appeal. As noted previously, plaintiffs seem to have induced the Court of Appeals to take jurisdiction by arguing, inter alia, that "plaintiffs can have no expectation of obtaining the relief they seek through subsequent proceedings before the district court." Plaintiffs-Appellants' Opposition to Alaska Miners Association's Motion to Dismiss, at 5-6. The implication was that all possible grounds for obtaining an injunction under Paragraphs 32-35 had been presented to and rejected by the district court. Of course, plaintiffs must now argue that the summary judgment motion denied on January 29 advanced only one of two grounds for injunctive relief under these paragraphs. But having obtained a favorable court ruling on the basis of the first position, plaintiffs may now be barred by the doctrine of judicial estoppel from trying to obtain another favorable ruling based on an inconsistent position. See generally Selected Risks Ins. Co. v. Kobelinski, 421 F. Supp. 431, 434-35 (E.D. Pa. 1976) (doctrine of judicial estoppel prevents parties "from 'playing fast and loose' with the courts"), quoting Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 512-13 (3d Cir. 1953).

10. The last sentences of Paragraphs 98 and 99 apparently refer to §§ 402(c) and 1312(a) of ANILCA. §§ 470 et seq. of the National Historic Preservation Act, and §§ 1271 et seq. of the National Wild and Scenic Rivers Act. It should be noted that none of these statutes, in the context of the new claim that the regulations are substantively unlawful, has been or is being advanced as a ground for granting summary judgment or a preliminary injunction. Claims raising some of those statutes in a different context were dismissed on November 21, 1986.

11. The court has jurisdiction to make this change even though a notice of appeal was filed with respect to the November 21 order on August 24, 1987. That notice of appeal predated the Ninth Circuit's August 28 order remanding this case for 60 days without restriction. See supra Part II.

12. Courts and commentators have generally assumed that there is no absolute limitation on NEPA actions. E.g., Jones v. Gordon, 621 F. Supp. 7, 10 [15 ELR 20167] (D. Alaska 1985), rev'd in part on other grounds, 792 F.2d 821 [16 ELR 20920] (9th Cir. 1986); D. Mandelker, NEPA Law and Litigation § 4:26 at 47 (1984). The court is aware of no instance, however, where § 2401 has been raised or could have been raised as a bar.

13. It is irrelevant whether the United States itself is the named defendant. E.g., Geyen v. Marsh, supra, 775 F.2d at 1307 ("'Actions challenging official conduct are intrisically against the United States and are now treated as such. . . .'"), quoting H.R. Rep. No. 94-1656, 1976 U.S. Code Cong. & Ad. News 6121, 6131.

14. This seems to be the thrust of plaintiffs "a priori" argument at page 21-22 of their first brief on substantive issues, with its citation to Webster's definition of "prevent."

15. Of course, in balancing these considerations the court would be obliged to give deference to the Secretary's view of how they should be balanced.

16. "Evaluation" of the environmental impacts of the extension in Alaska was confined to one sentence of the EA: "Impacts will not be significant." A.R. 12:00045. This is not the "reasoned explanation" required of an EA. E.g., Jones v. Gordon, 792 F.2d 821, 829 [16 ELR 20920] (9th Cir. 1986).

17. No injunction is necessary to accomplish this result. It should further be noted that BLM acknowledges its obligation to prepare an EA on each mine required to file a Plan of Operations.