Watch v. U.S. Dep't of the Interior

GREAT BASIN RESOURCE WATCH, WESTERN SHOSHONE DEFENSE PROJECT, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; AMY LUEDERS, BLM State Director,and CHRISTOPHER J. COOK, BLM Mt. Lewis Field Manager, Defendants

3:13-cv-00078-RCJ-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: July 23, 2014

ORDER

This case arises out of Defendants' administrative approval of a proposed molybdenum mine located 23 miles northwest of Eureka, Nevada. Plaintiffs seek to enjoin construction under various environmental laws and now move for summary judgment. (ECF No. 56). For the reasons stated herein, the motion is denied.

I. FACTS AND PROCEDURAL HISTORY

On February 15, 2013, Plaintiffs Great Basin Resource Watch and Western Shoshone Defense Project (collectively "Plaintiffs") filed a complaint against Defendants U.S. Bureau of Land Management ("BLM"); U.S. Department of the Interior; Amy Lueders, BLM State Director; and Christopher J. Cook, BLM Mount Lewis Field Manager (collectively "Defendants"). (Compl., ECF No. 1, at 1). The complaint challenges Defendants' approval of the Mount Hope Project ("Project" or "Mine"), a large open-pit molybdenum mining project onpublic lands, proposed by Intervenor Eureka Moly, LLC ("EML").¹ (Id. at 2). Specifically, Plaintiffs challenge the Record of Decision ("ROD") approving the Mine and the corresponding Final Environmental Impact Statement ("FEIS") prepared by BLM. (Id.). Plaintiffs also challenge BLM State Director Lueders' rejection of their petition for state director review of the ROD and FEIS. (Id. at 3).

Plaintiff Great Basin Resource Watch ("GBRW") is a non-profit organization based in Reno, Nevada, concerned with protecting the Great Basin's land, air, water, wildlife, and communities from the adverse impacts of hardrock mining. (Id. at 37). GBRW is a coalition of ranchers, sportsmen, conservationists, and Native Americans. (Id.). GBRW members include ranchers and farmers who live, work on, and own private lands near the Project. (Id.). These members own water rights in the Mount Hope area, where they graze and water livestock. (Id.). GBRW submitted comments to BLM regarding the Draft EIS ("DEIS") and filed a petition for review of the Project approval decisions and FEIS with BLM's State Director. This petition was rejected on January 4, 2013. (Id. at 38).

Plaintiff Western Shoshone Defense Project ("WSDP") is under the direction of the Western Shoshone National Council, a traditional government of the Western Shoshone people. (Id.). Its mission is to protect and preserve Western Shoshone rights and homelands for present and future generations. (Id.). WSDP's members use the lands for traditional, cultural, and religious purposes, and its petition for State Director review was likewise denied. (Id.).

The Project is located 23 miles northwest of Eureka, Nevada, and it is situated on both private and public lands. (ROD, AR² 051837). The Project covers over 22,886 acres and includesthe open-pit molybdenum mine; waste rock disposal facilities; milling facilities; a molybdenite concentrate roaster and packaging plant; a ferromolybdenum plant; two tailings storage facilities; exploration roads, pads, and sumps; a low-grade ore stockpile; a water supply system; a 24-mile electric supply line; a number of new roads; and other ancillary facilities. (Id. at 051845051846). The Mine will have an 80-year lifetime, consisting of an 18 to 24 month construction phase, 44 years of mining and processing, 30 years of reclamation, and 5 years of post-closure monitoring. (Id. at 051837). EML's holdings include 14 patented claims and approximately 1,550 lode and millsite mining claims, for a total land position of approximately 29,000 acres. (Id. at 051842).

EML intends to mine the Mount Hope ore body, which contains an estimated 966 million tons of molybdenite (molybdenum disulfide) ore. (Id.). This ore will produce approximately 1.1 billion pounds of recoverable molybdenum. (Id.). The proposed mining and processing will also produce approximately 1.7 billion tons of waste rock and 1 billion tons of tailings. (Id.). The surface disturbance associated with the proposed activities totals 8,355 acres on both public and private lands. (Id.).

To keep the mine pit dry, the Project will require pumping the regional aquifer, i.e., dewatering, during the mining phase. (FEIS, AR 049882).The dewatering will lower, or drawdown, the water table in the area. (Id. at 049886). The FEIS predicts that 22 springs, 2 perennial stream segments, and portions of 4 intermittent and ephemeral stream drainages are within the maximum area where at least a ten-foot drop in the water level will occur (the "10-foot drawdown cone"). (Id).

Plaintiffs allege that the dewatering will result in significant and irreparable adverse impacts to the springs, seeps, and waterholes, especially those within the 10-foot drawdowncone. (Compl., ECF No. 1, at 8). They further contend that there are at least four adjudicated Public Water Reserves #107 ("PWR 107") federal reserved water rights within the 10-foot drawdown cone: Mount Hope Spring (No. 619), Garden Spring (No. 597), McBrides Spring (No. 612), and Lone Mountain Spring (No. 742). (Id. at 12-15).³ Unnamed springs 604 and 646 are also within the drawdown cone, but they have not been recognized by BLM or adjudicated by the State Engineer. (Id. at 15). However, according to Plaintiffs, these springs and waters are reserved under PWR 107 and are therefore entitled to all associated protections. (Id.). Plaintiffs complain that Defendants failed to require these and other mandated protections.

Seeking declaratory and injunctive relief under the Administrative Procedures Act Plaintiffs contend that Defendants' actions and omissions in approving the Project: (1) fail to protect federal water rights and associated withdrawn lands in violation of PWR 107 and related laws; (2) violate the National Environmental Policy Act ("NEPA"); and (3) violate the Federal Land Policy Management Act ("FLPMA"). (Compl., ECF No. 1, at 53-55). To support these claims, Plaintiffs identify eight potential defects in the approval.

First, the ROD approves the construction of Project facilities within one quarter mile of Springs 597, 604, 619, and 646, or, at a minimum, within 40 acres of springs withdrawn by PWR 107. (Compl. ECF No. 1, at 16 (citing FEIS, Figure 2.1.5, AR 049745)). BLM neither precluded EML from locating Project facilities on or adjacent to the PWR 107 springs nor kept these lands open for public use. (Id.).

Second, while the mitigation plan for the affected springs consists of installing pipes and other infrastructure to replenish lost water, the plan fails to identify the source of the replacement water, and there is (allegedly) no evidence that the plan will be effective. (Id. at 17-20).

Third, the Project is expected to slowly form a pit lake that will reach a depth of 900 feet200 years after the end of mining and eventually reach a depth of 1100 feet. (Id. at 21 (citing FEIS, AR 049999-50000)). The water quality in the pit lake is predicted to exceed federal and state water quality standards for a number of pollutants. (Id. (citing FEIS, AR 049999)). Defendants did not propose a mitigation plan for the pit lake. (Id.). Instead, they concluded that "[t]here would be a low potential for impacts to ground water quality due to the formation of a ground water sink in the open pit." (Id. (citing FEIS, AR 049999)). The FEIS further explains that because "[a]ccess to the open pit by humans and livestock would be restricted," there is no need to mitigate against, or prevent, the violation of water quality standards in the pit lake. (FEIS, AR 049999).

Fourth, the FEIS acknowledges that the Project will significantly impact portions of the Pony Express National Historic Trail that are eligible for listing on the National Register of Historic Places. (Compl. ECF No. 1, at 24 (citing FEIS, AR 050357-050358)). BLM, however, allowed EML to defer the submission of its plan to mitigate this impact until after the FEIS was completed. (Id. (citing FEIS, AR 050373)). Because EML did not develop the approved mitigation plan until after the FEIS was published, neither Plaintiffs nor the public had an opportunity to comment on its effectiveness. (Id. (citing ROD, AR 051857)). Plaintiffs imply that the mitigation plan, which consists largely of photo-documenting portions of the trail that will be impacted, is inadequate. (Id. at 25 (citing ROD, AR 051857)).

Fifth, while BLM required financial guarantees related to the reclamation process, it allegedly failed to adequately review the proposed guarantees under NEPA, and neither Plaintiffs nor the public were allowed to see or comment on the proposed guarantees during the NEPA process. (Id.).

Sixth, the ROD approves EML's plan to "toll roast," which means that EML isauthorized to receive and process concentrates/ore from other molybdenum mines in the region. (Id. at 30 (citing ROD, AR 051846)). "However, the FEIS contains no analysis of the sources of this ore (i.e., the 'other mines'), the impacts from these operations, or the full extent of the transportation and other impacts from this approval." (Id.). According to Plaintiffs, NEPA requires a detailed analysis of each of these issues. (Id.).

Seventh, BLM did not obtain any data regarding existing, or baseline, pollution levels at or near the Project site. (Id. (citing FEIS, Table 3.6-7, AR 050072)). Instead, for some pollutants, it used data from Great Basin National Park, a protected environment over 100 miles away. (Id.). For another pollutant, it used data from Boulder City, Nevada, which is over 200 miles away. (Id. at 32). Finally, for the other regulated criteria pollutants, BLM assumed an existing level of zero, based on a recommendation from the Nevada Bureau of Air Pollution Control—the agency responsible for air quality permitting in Nevada. (See id. (citing FEIS, Table 3.6-7, AR 050072)). BLM...