The Ninth Circuit Court of Appeals rejected a challenge to the adequacy of the United States Forest Service’s Final Environmental Impact Statement (EIS) and Record of Decision (ROD) regarding the operation of a gold mine in Washington. Okanogan Highlands Alliance v. Williams, 2000 WL 1879978.]
In 1992, Battle Mountain Gold Company submitted a proposed plan for the operation of a gold mine in an area on and around Buckhorn Mountain in Washington. The proposed project would affect land administered by the Forest Service, the Bureau of Land Management, and the Washington Department of Natural Resources, and owned by private parties. The Forest Service issued an EIS in which it discussed seven project alternatives. In its ROD, the Forest Service chose one of the project alternatives.
The Plaintiffs, Okanogan Highlands Alliance and the Confederated Tribes of the Colville Reservation (Colville), appealed the Forest Service’s selection to the Regional Forester, who denied the appeal. The case proceeded to federal district court, which granted judgment to Defendants, the Forest Service and Battle Mountain Gold. Okanogan and Colville appealed to the Ninth Circuit Court of Appeals.
The Court of Appeals rejected Plaintiffs’ argument that the Regional Forester and the District Court had relied on documents that were not part of the record presented to the Forest Service. Although the Court noted that the Regional Forester acknowledged the existence of some of the documents, the Court found that the Regional Forester did not use the documents as support for any of the conclusions in the EIS or the ROD. The Court of Appeals also accepted the District Court’s statement that its decision was “based solely on the discussion of mitigation measures provided in the FEIS and ROD.”
The Court of Appeals also rejected Plaintiffs’ argument that the EIS and ROD did not contain adequate discussion of the measures necessary to mitigate the environmental consequences of the mine-pit lake, the water overflow from the lake, and the waste-rock dumps. Upon an extensive review of the EIS and the ROD, the Court first concluded that they extensively discussed the quality of the water that would accumulate in the pit; the discharge from the lake and the potential effects of the discharge; and the possible environmental effects of the waste-rock dumps. The EIS also discussed monitoring, proposed numerous mitigation measures, and used a rating system to judge the probable effectiveness in achieving the mitigation measures objectives.
The Court next addressed the issue of whether the EIS and ROD adequately discussed the mitigating measures. Because the EIS contains a thorough discussion of the potential adverse environmental effects of the project, requires monitoring of the effects, provides methods for ensuring that environmental problems do not develop, and requires Battle Mountain Gold to post a security deposit to ensure compliance with the environmental standards, the Court determined that the Forest Service took the required “hard look” at the possible environmental consequences. Recognizing that the mitigating measures are described in general terms and rely on general processes, the Court nevertheless determined that the extensive discussion of mitigating measures was adequate in light of the fact that the actual adverse effects are uncertain.
The Court also rejected Plaintiffs’ argument that the Forest Service was required by the Organic Act, 16 U.S.C. §§ 478 and 551, to select the most environmentally preferable, but still profitable, project alternative. The Court stated that sections 478 and 551 demonstrate the “important and competing interests” of preserving forests and protecting mining rights. According to the Court, these two interests “were intended to and can coexist.” Therefore, the Court rejected the Plaintiffs’ argument that, when the Forest Service must choose between project alternatives, “environmental interests always trump mining interests.”
The final issue that the Court addressed was Colville’s claim that the EIS and ROD include only “passing references” to Colville’s reserved rights to hunt and fish in the 2,000 acres of hunting and fishing territory that will not be available to Colville members over the life of the project. The Court determined that the EIS and ROD contain (1) numerous acknowledgments of Colville’s rights, (2) extensive analysis of the aquatic and wildlife habitat in the project area and the effects of the project on the habitat, and (3) discussion of mitigating factors. The Forest Service concluded that the project will have no significant effect on hunting and fishing resources in the affected area, particularly since the affected area amounts to 1% of the total acreage of Federal lands available for Tribal hunting within the surrounding area. Thus, the Court determined that the Forest Service took the required “hard look” at the issues that will affect Colville’s reserved rights.
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