NEPA

Impacts Analysis for Phased Project. The plaintiffs argued that BLM had violated NEPA because the EA did not identify the specific drilling locations for phases 2 and 3 of the exploration project. The court held that BLM had provided a sufficient level of detail regarding those later phases of the project, even though the EA only described the impacts in general terms:

“We agree with the IBLA that the BLM, in some cases, may adapt its assessment of environmental impacts when the specific locations of an exploration project’s activities cannot reasonably be ascertained until some time after the project is approved. NEPA’s ultimate focus is on the assessment of environmental impacts and a project’s details are usually a means to that end. An exploration project, however, inherently involves uncertainties; if mining companies knew the precise location of mineral deposits before drilling, exploration would not be required. In approving mineral exploration projects, the BLM must balance these uncertainties with its duty under NEPA to analyze possible environmental impacts. The IBLA’s approach … strikes an appropriate balance by holding that the BLM may approve an exploration project without knowing the exact locations of drill sites and other project activities. In order to do so, the BLM must analyze the impact of drilling activities in all parts of the project area and impose effective avoidance and mitigation measures to account for unknown impacts.”
“Here, … the BLM was provided with dimensions of drill sites and access roads, the methods used to construct them, and the total surface disturbance area that would result from the Amendment. With this information, the BLM assessed the potential impacts from all three phases that might occur throughout the project area…. [In addition,] the BLM imposed effective avoidance and mitigation measures to protect Western Shoshone cultural resources from impacts resulting from all three phases of the Amendment.”
“These measures compensate for Cortez’s inability to identify the locations of drill sites and related activities for Phases I through III before beginning exploration activities, provide for phased assessment of areas not yet surveyed for cultural resources at a Class III level, and permit the BLM to protect cultural resources when so required by law. We therefore conclude that the BLM did not violate NEPA by approving the Amendment without knowing the precise locations of drill sites, access roads, and other project activities for Phases I through III.” Range of Alternatives in EA/FONSI. The plaintiffs argued that the alternatives analysis in the EA was inadequate because (1) BLM should have considered the alternative of approving only Phase 1, rather than approving all three phases at once; (2) BLM’s analysis of the No Action Alternative consisted of a single paragraph; and (3) BLM only considered the No-Action and the proposed project, rather than considering additional ‘action’ alternatives. The court rejected all of these arguments:
“As discussed earlier, given the uncertainty of the exploration activities, the BLM imposed mitigation measures designed to adequately protect cultural resources in all phases of the Amendment. … Because of the mitigation measures, the environmental consequences of approving only the first phase of the project versus all three phases are substantially similar; therefore, the BLM was not required to address this alternative in the EA.
“Plaintiffs argue that the BLM’s analysis of the No Action Alternative was insufficient because it consisted of only one paragraph. Plaintiffs’ argument is not persuasive. Although brief, the BLM’s discussion was sufficient because the No Action Alternative maintains the status quo, i.e. the original HC/CUEP plan of operations.”
“Plaintiffs also suggest that the BLM violated NEPA by considering only two actions-the proposed plan and the No Action Alternative. There is no merit to this argument. In Native Ecosystems, we stated that “[t]o the extent that [Plaintiff] is complaining that having only two final alternatives-no action and a preferred alternative-violates [NEPA’s] regulatory scheme, a plain reading of the regulations dooms that argument.” Cumulative Impacts. The plaintiffs argued that BLM’s analysis of cumulative impacts was not sufficiently detailed. The court agreed that BLM’s cumulative impacts analysis was inadequate, because (1) it focused mainly on the impacts of the project, not the combined impacts of the project and other reasonably foreseeable projects, (2) the analysis was “conclusory” – that is, it stated conclusions without providing adequate justification; and (3) the EA did not explain how the sponsor would mitigate cumulative impacts caused by other actions. The court also held that the plaintiffs were not required to prove that cumulative impacts would actually occur; they simply needed to show that BLM had not adequately analyzed the potential for cumulative impacts.
“We note that the bulk of the EA’s discussion in these two sections [on cultural resources and Native American religious concerns] focuses on the effects of the Amendment itself, rather than the combined impacts resulting from the activities of the Amendment with other projects. Although part of the BLM’s analysis discusses ‘[t]he effects of the activities to be conducted under the [proposed Amendment] within the cumulative effects study area,’ only two of the seven paragraphs in these two sections refer to cumulative effects. The majority of the discussion focuses on how effects of the Amendment’s additional exploration activities will be avoided or mitigated. The EA’s discussion of the Amendment’s direct effects in lieu of a discussion of cumulative impacts is inadequate.”
“Moreover, although the EA refers to cumulative effects in two paragraphs in the Cultural Resources and Native American Religious Concerns sections, the EA does not, in fact, discuss the existence of any cumulative impacts on these resources. Instead, it concludes that ‘[n]o incremental cumulative effects would occur to cultural resources as a result of the proposed project.’ … This type of conclusory ‘analysis’ can be found throughout the cumulative impacts section. For example, the Amendment’s EA devotes a scant three sentences to the cumulative impacts to Water Resources, stating only that ‘[i]mpacts to water resources … may include increased sedimentation and potential for erosion.’ The EA’s vague discussion of cumulative impacts can be found in virtually every subpart of the section.”
“We acknowledge that the EA here … does describe some of the ways in which the Amendment’s impacts will be mitigated. The Amendment’s EA contains a description of some mitigation measures, and the BLM State Director imposed additional measures in his April 2005 decision. The EA, however, fails to explain how Cortez will mitigate or avoid impacts to the different resources resulting from the other existing, proposed, or reasonably foreseeable projects…. Further, … the EA fails to explain the nature of unmitigated impacts of the Amendment’s expanded exploration activities with other existing, proposed, and reasonably foreseeable activities.”
“Although we have not yet precisely articulated the burden that a plaintiff must bear to demonstrate that an agency should have analyzed the cumulative impacts of a proposed project along with other projects, our case law suggests that the burden is not an onerous one…. [W]e conclude that in order for Plaintiffs to demonstrate that the BLM failed to conduct a sufficient cumulative impact analysis, they need not show what cumulative impacts would occur. To hold otherwise would require the public, rather than the agency, to ascertain the cumulative effects of a proposed action. Such a requirement would thwart one of the ‘twin aims’ of NEPA-to ‘ensure that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.’” National Historic Preservation Act

Consultation with Tribe. The tribe argued that BLM had violated Section 106 by failing to consult the tribe early enough in the NEPA process. BLM had initiated contact with the tribe about one year after the project sponsor had proposed the amendment to the exploration plan, and just one month prior to the publication of the EA. The court held that BLM’s consultation was sufficient, because (1) BLM had consulted with the tribe regarding potential impacts in the exploration area over a period of many years, (2) the tribe had not identified any additional information that it would have provided if it had been consulted earlier in the process, and (3) the tribe conceded that BLM’s research and investigation of sites significant to the tribe was adequate.

“No Effects” Determinations. The tribe challenged BLM’s finding that exploration activities would have “no effect” on sites of religious and cultural significance to the tribe. BLM had identified “properties of religious or cultural importance” to the tribe (“PCRIs”) in the exploration area, and, because it did not know the specific sites of future drilling, it established “exclusion zones” around the PCRIs in order to avoid impacts to those resources. The tribe claimed that exclusion zones could not avoid impacts, because many of the PCRIs were “landscape-scale” resources. The court upheld BLM’s finding of “no effect” for the PCRIs:
“First, we do not agree that approval of a phased project in its entirety always results in a violation of the NHPA. As noted above, the NHPA, like NEPA, is a procedural statute requiring government agencies to “stop, look, and listen” before proceeding with agency action. For the same reasons that we concluded in the NEPA context that a phased exploration project in some circumstances can be fully approved without all the details of the separate phases of exploration, we reach the same conclusion in the NHPA context.”
“Second, Plaintiffs’ argument that the exclusion zone procedures do not offer adequate protection to cultural resources under the NHPA is without merit. According to Plaintiffs, the National Register eligible PCRIs in the project area are of a “landscape-scale” and therefore are not susceptible to protection by ‘zones.’ Plaintiffs are correct that the PCRIs designated by the BLM as eligible for the National Register encompass large areas of land…. Although it is understandable that the Tribe values the landscape of the project area as a whole, the NHPA requires that the BLM protect only against adverse effects on the features of these areas that make them eligible for the National Register. Plaintiffs have not demonstrated that the exclusion zones will fail to prevent any adverse effects to these features.”