Cascade Forest Conservancy v. Heppler, 3:19-cv-00424-HZ

CASCADE FOREST CONSERVANCY, Plaintiff, v. LENORE HEPPLER; BUREAU OF LAND MANAGEMENT - OREGON;GAR ABBAS; and UNITED STATES FOREST SERVICE, Defendants,ASCOT USA INC. and ASCOT RESOURCES LTD, Intervenor-Defendants.

No. 3:19-cv-00424-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

February 15, 2021

OPINION & ORDER

Roger Flynn

WESTERN MINING ACTION PROJECT

P.O. Box. 349

Lyons, CO 80540

Thomas Charles Buchele

EARTHRISE LAW CENTER

10015 SW Terwilliger Blvd.

Portland, OR 97219

Attorneys for Plaintiff

Michael Sawyer

U.S. DEPARTMENT OF JUSTICE

Environment and Natural Resources Division

4 Constitution Square, 150 M St. NE

Washington, DC 20002

Attorney for Defendants

Kirk B. Maag

Crystal Chase

STOEL RIVES LLP

760 S.W. Ninth Ave., Suite 3000

Portland, OR 97205

Attorneys for Intervenor-Defendants

HERNÁNDEZ, District Judge:

Plaintiff Cascade Forest Conservancy brings this action against Defendants Lenore Heppler, the United States Bureau of Land Management, Gar Abbas, and the United States Forest Service (the "Federal Defendants"), alleging violations of the Administrative Procedure Act ("APA"), the Land and Water Conservation Fund Act ("LWCFA"), the Reorganization Plan No. 3 of 1946, and the National Environmental Policy Act ("NEPA"). Compl., ECF 1. Specifically, Plaintiff challenges Defendant USFS's January 29, 2018 Decision Notice ("DN") and Finding of No Significant Impact ("FONSI"), Defendant BLM's December 3, 2018 Decision Record ("DR") and FONSI, and the underlying August 2017 Modified Environmental Assessment ("2017 EA") for the Goat Mountain Hardrock Mineral Prospecting Permits. Id. On June 3, 2019, Judge Acosta granted a Motion to Intervene filed by Intervenor-Defendants Ascot USA Inc. and Ascot Resources Ltd. ("Defendant Ascot"). Plaintiff, the Federal Defendants, andDefendant Ascot now move for summary judgment on all of Plaintiff's claims. Def. Ascot Mot. Summ. J. ("Def. Ascot Mot."), ECF 45; Pl. Mot. Summ. J. ("Pl. Mot."), ECF 46; Fed. Def. Mot. Summ. J. ("Fed. Def. Mot."), ECF 52. On September 18 and 30, 2020, the Court held oral argument on the parties' motions. For the reasons that follow, the Court grants in part and denies in part the parties' cross motions for summary judgment.

BACKGROUND

This case concerns two applications for hardrock mineral prospecting permits in the Gifford Pinchot National Forest near Goat Mountain, adjacent to the Mount St. Helens National Volcanic Monument boundary. NAR 149, 335.¹ This is an area that has seen human activity for over 100 years, with dominant land uses including logging, silvicultural activity, recreation, mineral prospecting, and limited mineral development. NAR 152. Presently, the area is used primarily for recreation, with peak use from July through late October. NAR 188. The Project Area includes the Green River Horse Camp as well as access to a few hiking trails. NAR 188.

The Permit Area encompasses three parcels: MS-1329, MS-1330, and MS-708. Based on available information, the parcels include part of a potentially valuable mineral deposit known as the Margaret Deposit. NAR 153. But there have been only limited mineral exploration programs conducted in the area. In the middle of the twentieth century, Duval Corporation owned the plots at issue and conducted limited drilling and mineral prospecting. NAR 152-53. Fieldwork halted after the eruption of Mount St. Helens in 1980, "before an understanding of the Margaret Depositsufficient for current economic resource evaluation was developed." NAR 153. In the mid-1980s, Duval divested its hardrock mineral holdings. NAR 153. Defendant USFS acquired the lands by donation and purchase in 1986. NAR 153. The Government owns 100% of both the surface estate and mineral interest of MS-1329 and MS-1330, which were purchased with funds from the LWCFA. NAR 153-54, 162. The Government also own 100% of the surface estate of parcel MS-708, but it only acquired 50% of the mineral rights in MS-708. NAR 153-54. The other half was acquired by Defendant Ascot in 2010. NAR 154. The surface estates of the parcels are managed by Defendant USFS, and the mineral estates are managed by Defendant BLM. NAR 151.

In 2010 and 2011, Defendant Ascot submitted proposals to the Federal Defendants to drill exploration holes to assess the mineral estate. With Defendant USFS's concurrence, Defendant Ascot completed 11 exploration holes on MS-708 in 2010. NAR 154. In 2011, Defendant Ascot submitted two Prospecting Permit Applications to drill sixty-three holes at twenty-three pad sites on MS-1329, MS-1330, and MS-708. NAR 149, 151, 154-55. According to the Federal Defendants, core samples from these drillholes would provide geological and mineralogical information needed to fill in the gaps in the historical data previously gathered by Duval Corporation. NAR 177. The information would also verify historical information and complete the geological model of the site. NAR 177.

In 2012, Defendants USFS and BLM jointly prepared an environmental assessment ("2012 EA") of the Proposed Action, which served as the basis of the Defendant USFS's 2012 Decision Notice and Finding of No Significant Impact and Defendant BLM's Decision Record and Finding of No Significant Impact. NAR 149, 155. Plaintiff—formerly known as Gifford Pinchot Task Force—then filed a complaint in this Court alleging that the Federal Defendantshad violated NEPA and the LWCFA in issuing the 2012 EA and related documents. The Court agreed in part, vacating the Federal Defendants' decisions in August 2014. NAR 149. The Court concluded that the 2012 EA violated NEPA and the LWCFA because, in relevant part, it failed to: (1) recognize outdoor recreation as a primary purpose for several of the land parcels; (2) analyze baseline conditions and impacts on groundwater; and (3) consider all reasonable alternatives. See Gifford Pinchot Task Force v. Perez, No. 03:13-cv-00810-HZ, 2014 WL 3019165 (D. Or. July 3, 2014).

After this Court's ruling, Defendant Ascot requested that the Federal Defendants modify the 2012 EA and prepare new decisions. NAR 55831. In December 2015, the Federal Defendants prepared a modified environmental assessment ("2015 EA") and released it for public comment in January 2016. NAR 498-851. Plaintiff submitted an extensive comment, asserting the 2015 EA did not address the inadequacies found by this Court in its 2014 Opinion & Order. NAR 37502-52. Plaintiff also submitted a FOIA request to both Agencies before submitting its comment, but neither agency responded before the end of the comment period. NAR 39732-34, 24995-96; Compl. ¶ 61.

The environmental assessment was further modified in 2017. NAR 131-491. In the final 2017 EA, the Federal Defendants considered four alternatives. NAR 171. Alternative 1 is the no action alternative. NAR 171. Alternative 2 closely follows the Proposed Action as described in Defendant Ascot's Prospecting Permit Applications and Exploration Plan. NAR 171. It also includes some specific conditions put forth by the Federal Defendants to protect the land and the primary purposes for which it was acquired. NAR 171. Alternative 3 was created based on scoping comments and largely follows Alternative 2 with the addition of (1) measures to protect water in the Project Area, (2) timing restrictions to protect the habitat of the Northern SpottedOwl and recreation, and (3) additional drill shack features to reduce noise and light pollution. NAR 177. Alternative 4 is the same as Alternative 3 but excludes drilling activities at Pads 6 and 7 located in the riparian reserve along the Green River. NAR 177.

The 2017 EA also considered but eliminated a few alternatives, including limiting prospecting activities to only MS-708, the parcel in which Defendant Ascot and the Government each own a 50% interest in the mineral estate. NAR 186-87. This alternative would eliminate ten of the proposed drill sites and require redirection of drilling from two other sites. NAR 186. The Federal Defendants eliminated this alternative because it would not meet the needs of the applicant or the Government. NAR 186-87. Specifically, it would not provide Defendants with the scientific knowledge gained from the full extent of the proposed prospecting or sufficient information to know whether a valuable deposit exists in the Project Area for the purposes of any future action regarding a mineral lease. NAR 187.

After this Court's 2014 decision, the Federal Defendants conducted a groundwater resources investigation, which was appended to the 2017 EA as Appendix G. NAR 149. The 2017 EA also includes a discussion regarding the primary purpose of MS-1329 and MS-1330 under the LWCFA. NAR 149.

Based on the 2017 EA, Defendant USFS issued a draft DN and FONSI for public objection. NAR 105-28. Plaintiff objected to the draft DN and FONSI, arguing that the Federal Defendants had failed to respond to its FOIA requests and the 2017 EA was still deficient for failing to comply with the 2014 Opinion & Order. NAR 8645-89. Defendant USFS consented to the prospecting application in its final 2018 DN and FONSI selecting Alternative 4. NAR 70-103. Defendant BLM subsequently issued its 2018 DR and FONSI granting Defendant Ascot'sapplications. NAR 1-67. On March 22, 2019, Plaintiff filed this action challenging the Federal Defendants' actions. Compl.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). However, "[t]he legal standards for resolving a motion for summary judgment are inconsistent with the standards for judicial review of agency action[.]" Klamath Siskiyou Wildlands Ctr. v. Gerritsma, 962 F. Supp. 2d 1230, 1233 (D. Or. 2013), aff'd, 638 F. App'x 648 (9th Cir. 2016) (citation omitted). Nonetheless, where, as here, there are no material factual disputes and the administrative record before the court is complete, summary judgment serves as the appropriate vehicle for the court...