Friends of Inyo v. U.S. Forest Serv.

103 F.4th 543

FRIENDS OF THE INYO; Western Watersheds Project;Center for Biological Diversity; Sierra Club, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Leeann Murphy, Defendants-Appellees,Kore Mining, Ltd., Intervenor-Defendant-Appellee.

No. 23-15492

United States Court of Appeals, Ninth Circuit

Argued and Submitted August 24, 2023 San Francisco, California

Filed May 21, 2024

Appeal from the United States District Court for the Eastern District of California, Kimberly J. Mueller, Chief District Judge, Presiding, D.C. No. 2:21-cv-01955-KJM-KJN Roger Flynn (argued), Western Mining Action Project, Lyons, Colorado; Talasi B. Brooks, Western Watersheds Project, Boise, Idaho; for Plaintiffs-Appellants.

Ezekiel Peterson (argued), Tyler M. Alexander, and Robert P. Stockman, Assistant United States Attorneys; Todd Kim, Assistant Attorney General; United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Jamie Rosen, Attorney, United States Department of Agriculture, Office of General Counsel, Washington, D.C.; for Defendants-Appellees United States Forestry Service and Leeann Murphy.

Kerry Shapiro (argued), Daniel Quinley, and Lena Streisand, Jeffer Mangels Butler & Mitchel LLP, San Francisco, California, for Intervenor-Defendant-Appellee Kore Mining LTD.

Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H. Desai, Circuit Judges.

Opinion by Judge Desai;

Dissent by Judge Bumatay

OPINION

DESAI, Circuit Judge:

In 2021, the United States Forest Service approved the Long Valley Exploration Drilling Project (the "Project"), a mineral exploration project on land in the Inyo National Forest. Plaintiffs Friends of the Inyo, Western Watersheds Project, Center for Biological Diversity, and Sierra Club (collectively, "Friends") sued under the National Environmental Policy Act ("NEPA"), arguing that it was unlawful for the United States Forest Service ("Forest Service") to approve the Project by combining two categorical exclusions, when neither one alone could justify approval of the Project. KORE Mining Ltd. ("KORE"), the entity that proposed the Project, intervened as a defendant. The district court granted summary judgment in favor of the Forest Service and KORE and denied Friends' motion for summary judgment. For the reasons discussed below, we reverse the decision of the district court.

BACKGROUND

I. National Environmental Policy Act

"Congress enacted NEPA to establish a national policy for the environment." Mountain Cmtys. for Fire Safety v. Elliott, 25 F.4th 667, 674 (9th Cir. 2022). NEPA requires federal agencies to perform environmental analysis before taking any "major Federal actions significantly affecting the quality of the human environment." Env't Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 987-88 (9th Cir. 2020) (quoting Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1094 (9th Cir. 2013)). NEPA "does not mandate particular results," but "imposes only procedural requirements to ensure that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Id. at 988 (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 23, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). An agency can comply with NEPA in three ways: (1) it can prepare an Environmental Impact Statement ("EIS"); (2) it can prepare an Environmental Assessment ("EA"); or (3) it can invoke a Categorical Exclusion ("CE") to avoid preparing an EIS or EA. Id. This case involves the invocation of CEs.

CEs represent a "more expedited track available for a limited set of agency actions . . . 'that normally do not have a significant effect on the human environment.' " Earth Island Inst. v. Muldoon, 82 F. 4th 624, 632 (9th Cir. 2023) (quoting 40 C.F.R. § 1501.4(a)). Invoking an exclusion allows an agency to avoid preparing an EIS or EA so long as no "extraordinary circumstances" indicate that the action will nonetheless have a significant environmental effect. Id. To approve a project using a CE, the Forest Service must issue a "decision memo" supported by a project record or case file. § 220.6(e).

The Forest Service promulgated 25 categories of CEs in 36 C.F.R. § 220.6(e). Two CEs are at issue here: (1) CE-6 allows "[t]imber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction," 36 C.F.R. § 220.6(e)(6) ("CE-6 (habitat improvement)"); and (2) CE-8 allows "[s]hort-term (1 year or less) mineral, energy, or geophysical investigations and their incidental support activities that may require cross-country travel by vehicles and equipment, construction of less than 1 mile of low standard road, or use and minor repair of existing roads," Id. § 220.6(e)(8) ("CE-8 (mineral operations less than 1 year)").

II. Mining Activities on Forest Service Administered Land

The General Mining Law of 1872 confers a statutory right to prospect, explore, and mine minerals on certain public lands, including National Forests. 30 U.S.C. § 22, amended by Surface Resources Act of 1955, 30 U.S.C. § 612; 16 U.S.C. § 482. Such activities, known as "operations," must be "conducted so as to minimize adverse environmental impacts on National Forest System surface resources." 36 U.S.C. § 228.1. "Operations" are defined as "[a]ll functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto . . . ." § 228.3(a).

Under the Forest Service's mineral regulations, any person proposing "operations which might cause significant disturbance of surface resources" must file "a notice of intent to operate" with the Forest Service District Ranger with jurisdiction over the operations area. 36 C.F.R. § 228.4. If the District Ranger finds that any operation will likely cause "significant disturbance of surface resources," the operator must submit a "proposed plan of operations" to the Forest Service for approval. 36 C.F.R. § 228.4. No operations can be conducted until a plan of operations is approved. 36 C.F.R. § 228.4.

A plan of operations must provide, among other things, a description of how the operations will be conducted and the "measures to be taken to meet the requirements for environmental protection in § 228.8." 36 C.F.R. § 228.4. In turn, § 228.8, titled "[r]equirements for environmental protection," requires an operator to "reclaim the surface disturbed in operations by such measures as will prevent or control . . . damage to the environment and forest services including . . . reshaping and revegetation of disturbed areas" and "rehabilitation of fisheries and wildlife habitat." 228.8(g), (g)(4)-(5). Once the Forest Service receives an operator's proposed plan of operations, the agency must complete "an environmental analysis in connection with [the] proposed operating plan" to "determine whether an environmental statement is required." § 228.4(f), (a)(4), (b); § 228.5(a)-(b).

III. The Long Valley Exploration Drilling Project

East of Mammoth Lakes, California, there is a wide expanse of public land covered by shrubs and small trees within the Inyo National Forest. The Long Valley Exploration Drilling Project is a proposed mineral exploration project on this Forest Service-managed land. The Project would proceed in two phases. The approved Plan of Operations would first allow KORE to build 12 temporary drilling pads in the Project area, which would be used for one year or less. Then, for up to three years after drilling, experts would monitor and tend to the Project area to ensure environmental rehabilitation is successful.

Each drilling pad would include up to 3 core, angle borings, which will reach depths from about 580 to 1,424 feet. KORE would use existing public roads and build up to .32 miles of temporary access roads for the Project. Between the temporary roads and drilling pads, KORE estimates the Project would directly disturb about .82 acres within the Project area. Friends allege that the Project's impact will be much larger because construction will be scattered throughout the Project area and will disrupt the region with loud noises and visual intrusions. The parties also dispute whether the Project's drill depths will reach or disrupt the regional ground water aquifer.

IV. Procedural Background

KORE began investigating the Project in 2019. The proposed site was 1,848 acres in Mono County, where other entities bored hundreds of holes in previous explorations in the 1980s and 1990s. Although the previous holes only reached a few hundred feet, KORE believed that deeper exploration, which had previously not been technically possible, could be fruitful. KORE proposed drilling fewer, deeper holes in the periphery of the same area. KORE would then refill the holes without extracting any resources.

KORE submitted a required notice of intent to the Forest Service in the summer of 2020. The Forest Service requested a more detailed plan of operations because KORE's "proposed mining activities" were "likely to cause significant disturbance of surface resources." KORE prepared and submitted a plan of operations that summer. Initially, the Forest Service determined that KORE needed to prepare an EA to assess the Project's environmental impact. In a July 2020 letter to KORE, the Forest Service concluded: "Our initial review of the Plan of Operation indicates that an Environmental Assessment will need to be completed for this project."

In August 2020, KORE sent a letter to the Forest Service objecting to the need for NEPA review. KORE wrote that it was "hopeful that [the Forest Service] can help [KORE] get through this initial exploration stage on a quicker timeline." In an email to KORE in November 2020, the Forest Service informed KORE that the agency was "trying to fit the project into a Categorical Exclusion for the NEPA process . . . ." The same...