Sierra Club v. Penfold

Page 1307

857 F.2d 1307

19 Envtl. L. Rep. 20,207

SIERRA CLUB, Northern Alaska Environmental Center Wilderness Society, Birch Creek Village Council, Minto Village Council, Golovin Traditional Council, Nunam Kitlutsisti, and Cenaliulriit Coastal Management District Plaintiffs-Appellants-Cross-Appellees, v. Michael PENFOLD, Director of the Alaska State Office of the Bureau of Land Management, Donald P. Hodel, Secretary of the Interior, Robert F. Burford, Director of the Bureau of Land Management, Donald E. Runberg, Acting District Manager of the Fairbanks District Office of the Alaska State Office of the Bureau of Land Management, Wayne A. Boden, District Manager of the Anchorage District of the Alaska State Office of the Bureau of Land Management, Department of the Interior, and Bureau of Land Management Defendants-Appellees-Cross-Appellants and Alaska Miners Association, Miners Advocacy Council, Valdez Creek Group, and Joseph Vogler, Defendants-Intervenors-Appellees-Cross-Appellants.

Nos. 87-3597, 87-4094, 87-4132 and 87-4209.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 6, 1987.

Reargued Dec. 9, 1987.

Resubmitted Dec. 9, 1987.

Decided Sept. 21, 1988.

As Amended Oct. 21, 1988.

Philip S. Barnett, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for plaintiffs-appellants-cross-appellees.

Blake A. Watson, Dept. of Justice, Washington, D.C., for defendants-appellees-cross-appellants.

James S. Burling, Pacific Legal Foundation, Anchorage, Alaska, for defendants-intervenors-appellees-cross-appellants.

Appeal from the United States District Court for the District of Alaska.

Before GOODWIN, ANDERSON and BRUNETTI, Circuit Judges.

J. BLAINE ANDERSON, ^* Circuit Judge:

This case involves a plethora of issues and a number of separate actions which were consolidated for purposes of appellate review. The actions center around federal regulation of placer mining on public lands in Alaska. Since each appeal involves facts and issues peculiar to it, the appeals are addressed separately. The additional facts necessary for each appeal are added where appropriate.

INTRODUCTION

A "placer" is an alluvial or glacial deposit containing particles of gold. To extract the gold, a miner first removes the vegetation and surface soil. The gold-bearing soil (pay dirt) is then removed and put in a sluice box. A sluice box is a channel with intermittent dams. When water is run through the box, the lighter materials are flushed away while the gold remains. The lighter materials, sands, silts and clays, are discharged from the box. When the discharge is excessive, it can enter streams, killing fish, aquatic life and vegetation, and generally contaminate the waste water in surrounding areas. The size of a placer mine can vary greatly--from very large mines using bulldozers, pumps and heavy equipment, to small one-person pick and shovel operations.

In 1980, in an effort to manage placer mining on federal lands, the Bureau of Land Management ("BLM") adopted regulations establishing procedures to prevent unnecessary or undue degradation resulting from placer mining. For regulatory purposes, BLM divided mining operations into three categories according to the size and location of the mine. Mines which cause a cumulative surface disturbance of more than five acres in any calendar year or any mine other than a casual mine which is located in a specially designated area of preservation, is identified as a "Plan" mine. 43 C.F.R. Sec. 3809.1-4 (1986). A Plan mine operation is only permitted after it has been approved by the BLM. Approval requires review through an environmental assessment, 43 C.F.R. Sec. 3809.2-1, and a subsistence evaluation, 16 U.S.C. Sec. 3120. The purpose behind approval is to minimize the adverse environmental effects of the mining activity.

Mining operations which result in only negligible disturbance of federal lands, i.e., those generally not involving the use of mechanized earth-moving equipment, motorized vehicles or explosives, are identified as "Casual" use mines. 43 C.F.R. Sec. 3809.0-5(b). For Casual use mines no notification to or approval by BLM is required. But, Casual use operations are subject to monitoring to ensure that unnecessary or undue degradation does not occur. 43 C.F.R. Sec. 3809.1-2.

The third category of mine is the "Notice" mine. This mining operation causes a cumulative surface disturbance of five acres or less per year. 43 C.F.R. Sec. 3809.1-3(a). A Notice mining operation does not require approval by BLM before a miner can commence developing the mine. 43 C.F.R. Sec. 3809.1-3(b). However, at least 15 days before beginning to mine, the Notice mine operator must give notice or a letter to BLM informing it of the address of the mine operator, identifying the mining claim and describing the activities proposed and the proposed start-up date. 43 C.F.R. Sec. 3809.1-3(c). Additionally, the notice must include a statement that reclamation of disturbed areas will be completed and that reasonable measures will be taken to prevent unnecessary or undue degradation of the lands during operations. 43 C.F.R. Sec. 3809.1-3(d). After BLM has reviewed the notice, it sends the operator a return letter indicating either: (a) the information in the notice is complete and meets federal mining regulations contained in 43 C.F.R. Sec. 3809.1-3(c); or that (b) the notice is incomplete and mining operations may not begin until 15 days after a completed notice is received. BLM Manual: H-3809-1--Surface Management. If an operator fails to file a notice he can be subject to, at the discretion of the BLM, being served with a notice of noncompliance or being enjoined from operating and held liable for damages for the unlawful acts until a notice is filed. 43 C.F.R. Sec. 3809.3-2. Notice mine operations are subject to monitoring by BLM to ensure operators are not causing unnecessary or undue degradation. 43 C.F.R. Sec. 3809.1-3(e). Periodic inspections to ensure compliance are permitted. 43 C.F.R. Sec. 3809.3-6. Failure to prevent degradation may cause the operator to be subject to a notice of noncompliance. 43 C.F.R. Sec. 3809.1-3(f).

APPEAL NO. 87-3597

1. FACTS AND PROCEEDINGS BELOW

In February, 1986, Sierra Club and a number of additional environmental groups (collectively "Sierra Club") filed suit against Michael Penfold as director of the Alaska BLM Office and other federal officials in the federal district court of Alaska, alleging inter alia, that BLM's regulatory practices of Notice mining operations violated numerous federal acts and federal regulations. The Alaska Miners Association and other groups representing miners and the mining industry (collectively "Miners") intervened. ¹ Sierra Club requested injunctive relief requiring BLM to comply with the federal environmental laws and to disapprove Notice mine operations conducted without an environmental assessment under 40 C.F.R. Sec. 1508.9. After reviewing the claim, the district court denied Sierra Club's motion for partial summary judgment for a permanent injunction on the compliance issue.

Sierra Club timely appealed denial of its motion for partial summary judgment. A motions panel of this court granted appellate jurisdiction, denied injunctive relief pending appeal, and set the matter for expedited appeal. The appeal was initially submitted and heard by this panel on August 6, 1987. We followed the motions panel and granted initial review, finding appellate jurisdiction existed under 28 U.S.C. Sec. 1292(a)(1) in that denial of the motion for partial summary judgment could be construed as denial of an injunction. See Loya v. INS., 583 F.2d 1110, 1112 (9th Cir.1978).

On the merits, we determined that Sierra Club's challenge to BLM's Notice mine practices could be construed: (1) as requiring each Notice mine to have an environmental assessment before that operation commenced, or (2) as a challenge to the regulation itself in that BLM erred in "drawing the line" for Notice mines at five acres instead of a lesser amount because mines disturbing over five acres fall within the Plan mine regulation which require review through an environmental assessment. Accordingly, we ordered a remand to the district court for 60 days. We requested the district court 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. Sec. 3809.1-3.

On November 6, 1987, the district court filed its Memorandum and Order on the remand. [Supp.ER: 272]. The district court first considered the scope of our remand order and held that review was not strictly limited to the question of the validity of 43 C.F.R. Sec. 3809.1-3. Although promulgated in 1980, the accompanying regulation for Plan mines, 43 C.F.R. Sec. 3809.1-4, was amended in 1983, thereby expanding the number of Notice mines covered by Sec. 3809.1-3. See 48 Fed.Reg. 8816 (1983). Accordingly, the district court ruled the remand order encompassed a challenge to both regulations.

After construing the scope of our remand order, the district court addressed the validity of the Notice mine regulations, i.e., whether they had been promulgated in a procedurally defective manner. On this issue, the district court ruled that Sierra Club's February, 1986, complaint did not include such a claim because the challenge was to the regulations as applied. But, the district court allowed Sierra Club to amend its complaint to include a procedural challenge to the 1980 rulemaking in that in adopting the regulations BLM failed to follow the procedures required by the National Environmental Policy Act and the Alaska National Interest Lands Conservation Act. The court also allowed the amendment to include both a procedural and substantive challenge to the 1983 amendments to the regulations. ² However, the court then ruled that the procedural challenge to the validity of the 1980 rulemaking was barred by the six-year statute of...