FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TE-MOAK TRIBE OF WESTERN
SHOSHONE OF NEVADA; WESTERN
SHOSHONE DEFENSE PROJECT; GREAT
BASIN MINE WATCH,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF THE No. 07-16336
INTERIOR; ROBERT V. ABBEY State
Director; GAIL G. GIVENS, D.C. No.
CV-05-00279-LRH
Assistant Field Manager Battle
Mountain Field Office; CLINTON R. OPINION
OKE, Assistant Field Manager;
UNITED STATES BUREAU OF LAND
MANAGEMENT,
Defendants-Appellees,
CORTEZ GOLD MINES,
Defendant-intervenor-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
January 15, 2009—San Francisco, California
Filed June 18, 2010
Before: Sidney R. Thomas and Richard A. Paez,
Circuit Judges, and David A. Ezra,* District Judge.
*The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
8981
8982 TE-MOAK TRIBE v. USDOI
Opinion by Judge Paez
8986 TE-MOAK TRIBE v. USDOI
COUNSEL
Roger Flynn, Jeffery C. Parsons, Western Mining Action
Project, Lyons, Colorado, for petitioners Te-Moak Tribe of
Western Shoshone of Nevada, Western Shoshone Defense
Project, and Great Basin Mine Watch.
Ronald J. Tenpas, Assistant Attorney General, Mark Haag,
Attorney, Environment & Natural Resources Division,
Department of Justice, Washington, DC, John Steiger, Of
Counsel, Office of the Regional Solicitor, United States
Department of the Interior, Salt Lake City, Utah, for respon-
TE-MOAK TRIBE v. USDOI 8987
dents United States Department of the Interior; Robert V.
Abbey, State Director; Gail G. Givens, Assistant Field Man-
ager, Battle Mountain Field Office; Clinton R. Oke, Assistant
Field Manager, Elko Field Office; United States Bureau of
Land Management.
Robert Tuchman, Thomas F. Cope, Linnea Brown, Holme
Roberts & Owen LLP, Denver, Colorado, W. Chris Wicker,
Woodburn and Wedge, Reno, Nevada, for respondent-
intervenor Cortez Gold Mines.
OPINION
PAEZ, Circuit Judge:
Te-Moak Tribe of Western Shoshone of Nevada, a
federally-recognized Indian tribe (“the Tribe”), the Western
Shoshone Defense Project (“WSDP”),1 and Great Basin Mine
Watch (“GBMW”)2 (collectively,“Plaintiffs”) appeal the dis-
trict court’s denial of their motion for summary judgment, and
the grant of summary judgment to the Department of the Inte-
rior (“DOI”), the Bureau of Land Management (“BLM”), sev-
eral officers of the BLM, and intervenor Cortez Gold Mines,
Inc. (“Cortez”) (collectively, “Defendants”).3 Plaintiffs con-
1
The Western Shoshone National Counsel created WSDP “to protect
and preserve Western Shoshone rights and homelands for present and
future generations based upon cultural and spiritual traditions.”
2
GBMW describes itself as “a coalition of environmentalists, ranchers,
and Native Americans dedicated to reforming the hardrock mining indus-
try and the agencies that regulate them to protect the land, air, water and
Native American resources of the Great Basin.”
3
We have jurisdiction to review both the grant of summary judgment to
Defendants and the denial of summary judgment to Plaintiffs, because
“[t]he grant of summary judgment [to the Defendants] is a final order
. . . .” Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.
2007) (citing Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973
F.2d 688, 694 (9th Cir. 1992)).
8988 TE-MOAK TRIBE v. USDOI
tend that the BLM’s approval of Cortez’s amendment to a
plan of operations for an existing mineral exploration project
in Nevada violated the National Environmental Policy Act
(“NEPA”), the National Historic Preservation Act (“NHPA”),
and the Federal Land Policy and Management Act
(“FLPMA”). We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm the district court with respect to Plaintiffs’
NHPA and FLPMA claims, and we reverse and remand for
further proceedings with respect to one of their NEPA claims.
I. Factual and Procedural Background
This appeal involves Cortez’s proposal to amend the plan
of operations for an existing mineral exploration project, the
Horse Canyon/Cortez Unified Exploration Project (“the HC/
CUEP”), located in Lander and Eureka Counties in northeast-
ern Nevada.4 The BLM approved the original plan of opera-
tions for the HC/CUEP in 2001.5 Pursuant to the 2001 plan of
operations, Cortez conducted exploration activities in a
30,548-acre area designated for the project (“project area”).
The HC/CUEP, in its original and amended plans, is a
phased exploration project. Phase I includes 150 drill sites, as
close as 200 feet apart, to determine what minerals are in the
target areas. Depending on what Cortez discovers, it may
move into Phase II of the HC/CUEP, in which there are about
125 drill sites, with three or more drill rigs working in close
proximity to one another. Finally, if Cortez chooses to con-
tinue exploring, it may move into Phase III, in which Cortez
4
Although exploration activities under the HC/CUEP may eventually
lead to a mining project, the BLM has yet to authorize actual mining in
the project area.
5
The BLM approved the original HC/CUEP plan of operations as an
amendment to the Horse Canyon Exploration Project. The HC/CUEP
added 16,430 acres to the Horse Canyon Exploration Project by joining it
with the Cortez Gold Mine Expansion Project, for a total project area of
30,548 acres.
TE-MOAK TRIBE v. USDOI 8989
can use approximately 100 drill holes within the Phase II drill
sites’ footprints.
Under the original HC/CUEP plan of operations, Cortez
was permitted to disturb a total of 50 acres of land within the
entire project area over the course of all three phases of the
project. In July 2003, Cortez proposed an amendment to the
HC/CUEP plan of operations (“the Amendment”) that would
permit Cortez to disturb a total of 250 acres throughout the
project area—five times the amount approved by the BLM for
the original project. Under the Amendment, Cortez’s explora-
tion would proceed according to the same phased operations
as outlined in the original HC/CUEP plan of operations, and
Cortez could not disturb more than 50 acres at any given time.
Cortez estimated that the HC/CUEP as amended would last
five years.
Cortez’s exploration activities under the HC/CUEP repre-
sent only a small part of a long history of exploration and
mining activities in this area of Nevada. Active mining opera-
tions have existed since the 1860s, and the mining industry
continues to explore the area for further mineral deposits. In
addition to the HC/CUEP, Cortez currently operates a number
of mines in the area, and Cortez has plans to develop in the
near future two mineral deposits as the Pediment/Cortez Hills
Mine Project (“the Pediment/Cortez Hills project”).6
After Cortez proposed the Amendment in July 2003, the
6
Cortez first discovered a mineral deposit on the western pediment of
Mount Tenabo (“the Pediment Deposit”) in 1993, before the approval of
the original HC/CUEP. Cortez originally submitted a proposed plan of
operations for the development of the Pediment Deposit in January 2001.
The Pediment Deposit is located within the original project area. As part
of the approval process for mining the Pediment Deposit, the BLM com-
missioned cultural surveys and studies of the area. Before the BLM com-
pleted the approval process, Cortez discovered another deposit in Cortez
Hills and sought approval from the BLM to mine the Pediment Deposit
and the deposit in Cortez Hills as one project.
8990 TE-MOAK TRIBE v. USDOI
BLM prepared an Environmental Assessment (“EA”) pursu-
ant to NEPA, assessing the environmental and cultural
resources of the project area and the potential impacts on the
environment. The EA “tiered” to, and thus incorporated, pre-
vious environmental impact statements and environmental
assessments, including those for the original HC/CUEP and
for the South Pipeline Project, another mining project located
near the project area.7
Although miners have been mining this area for genera-
tions, Native Americans have been there much longer.
According to their oral history, Te-Moak and other Western
Shoshone tribes have inhabited this area since time immemo-
rial, and their religion and culture is inextricably linked to the
landscape of the area. The project area is located on their
ancestral lands.8 Mount Tenabo, located within the project
area, is considered a traditional locus of power and source of
life for the Western Shoshone, and figures in creation stories
and world renewal. The top of Mount Tenabo is used by the
Western Shoshone for prayer and meditation and although
mining activities have impeded this practice, the association
of the top of the mountain to Western Shoshone beliefs, cus-
toms, and practices remains. The project area also contains
many pinyon pine trees, a source of pine nuts that were once
a key component of the Western Shoshone diet and remain a
focal point of Western Shoshone culture and ceremony.
Although mining has impeded the collection of pine nuts,
remnant stands of pinyon pine continue to be used as tradi-
tional family gathering areas by contemporary Western Sho-
shone. Finally, because of the Tribe’s burial traditions, the
ancestors of the Western Shoshone are likely buried through-
out the project area.
7
“Tiering refers to the coverage of general matters in broader environ-
mental impact statements . . . with subsequent narrower statements or
environmental analyses . . . incorporating by reference the general discus-
sions and concentrating solely on the issues specific to the statement sub-
sequently prepared.” 40 C.F.R. § 1508.28.
8
There is no reservation land in the project area.
TE-MOAK TRIBE v. USDOI 8991
As a result of the Western Shoshone’s undisputed connec-
tion to the land, the BLM has consulted with the Tribe, as
required by NEPA and the NHPA, about sites of cultural and
religious significance in areas slated for exploration and min-
ing, including areas covered by the HC/CUEP, its predecessor
project (the Horse Canyon Exploration Project), and the Pedi-
ment Project. This consultation led the BLM to designate two
sites within the project area as “properties of cultural and reli-
gious importance” or “PCRIs” that are eligible for inclusion
on the National Register of Historic Places: (1) Horse Canyon
and (2) the top of Mount Tenabo and the “White Cliffs” of
Mount Tenabo.
The BLM sent a letter to the Tribe about the Amendment
one year after the BLM received Cortez’s proposal in July
2003. The BLM noted that there was already extensive docu-
mentation of traditional, cultural, and spiritual use sites within
or near the project area, but asked the Tribe for help in identi-
fying any additional concerns and in developing any alterna-
tives or methods that might eliminate or reduce potential
adverse impacts. The Tribe did not respond to this letter.
About one month after soliciting the Tribe’s input, the
BLM submitted the draft EA for public comment on Septem-
ber 1, 2004, and sent the Tribe a copy to review. Although the
BLM attempted to contact the Tribe by telephone in the mid-
dle of September to ascertain whether the Tribe would be
commenting on the EA, the Tribe did not respond to those
calls. WSDP and GBMW, however, did contact the BLM in
early October regarding the proposed action and requested
information on the BLM’s consultation with the Western Sho-
shone and the location of drill holes, access roads, and other
details of the project. The BLM responded on October 20,
2004, but did not provide the organizations with the requested
project details.
The BLM could not provide the organizations with the pre-
cise locations of the project’s exploration activities because
8992 TE-MOAK TRIBE v. USDOI
they were not specified in the proposed Amendment’s plan of
operations. Instead, the BLM conditionally approved the
Amendment, requiring Cortez to provide detailed maps prior
to surface-disturbing activities and to follow specific avoid-
ance measures to protect cultural resources. The BLM issued
a Decision Record (“DR”) and Finding of No Significant
Impact (“FONSI”) (together a “DR/FONSI”) on October 22,
2004.
Plaintiffs petitioned the State Director of the BLM for
review of the BLM’s DR/FONSI on November 24, 2004.
After granting Plaintiffs’ request for review, the State Direc-
tor met with the Te-Moak Tribal Chairman, Te-Moak’s coun-
sel, and other representatives from the Tribe, WSDP, and
GBMW, and also considered arguments from Cortez. After
completing his review, the State Director affirmed a modified
version of the DR/FONSI that imposed additional mitigation
measures. One such modification was an exclusion zone pro-
tocol to protect PCRIs eligible for inclusion on the National
Register of Historic Places.
Dissatisfied with the State Director’s modified DR/FONSI,
Plaintiffs sought judicial review of the BLM’s action in May
2005 by filing suit against the DOI, the BLM, and several
BLM officers under the Administrative Procedure Act (APA).
See 5 U.S.C. § 551 et seq. The district court subsequently
granted Cortez’s motion to intervene. Ultimately, the parties
filed cross-motions for summary judgment. Concluding that
the BLM had complied with NEPA, the NHPA, and the
FLPMA, the district court granted Defendants’ motion for
summary judgment and denied Plaintiffs’ motion for sum-
mary judgment. Plaintiffs timely appealed.
II. Discussion
Plaintiffs argue that the BLM’s approval of the Amendment
violated NEPA, the NHPA, and the FLPMA. We review de
novo a district court’s grant and denial of summary judgment.
TE-MOAK TRIBE v. USDOI 8993
Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.
1997). Pursuant to the APA, our task is to determine whether
the agency’s final action was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law . . . .”
5 U.S.C. § 706(2)(A); see also Or. Natural Desert Ass’n v.
Bureau of Land Mgmt., 531 F.3d 1114, 1140 (9th Cir. 2008).
Here, we review the modified DR/FONSI issued by the BLM
State Director, which is the final agency action. See 43 C.F.R.
§ 3809.809(b).
The arbitrary and capricious standard “requires us to ensure
that an agency has taken the requisite hard look at the envi-
ronmental consequences of its proposed action, carefully
reviewing the record to ascertain whether the agency decision
is founded on a reasoned evaluation of the relevant factors.”
Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.
1992) (internal quotation marks and citations omitted).
A. National Environmental Policy Act
[1] We first consider Plaintiffs’ argument that the BLM’s
approval of the Amendment violated NEPA. NEPA imposes
a procedural requirement “(1) to ensure the agency will have
detailed information on significant environmental impacts
when it makes its decisions; and (2) to guarantee that this
information will be available to a larger audience.” Inland
Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754,
758 (9th Cir. 1996). The NEPA procedures used by agencies
“must insure that environmental information is available to
public officials and citizens before decisions are made and
before actions are taken.” 40 C.F.R. § 1500.1(b). “The NEPA
process is intended to help public officials make decisions
that are based on understanding of environmental conse-
quences, and take actions that protect, restore, and enhance
the environment.” 40 C.F.R. § 1500.1(c). Pursuant to these
goals, NEPA requires federal agencies to prepare an environ-
mental impact statement (“EIS”) for all “major Federal
actions significantly affecting the quality of the human envi-
8994 TE-MOAK TRIBE v. USDOI
ronment . . . .” 42 U.S.C. § 4332(2)(C). An agency may first
prepare an EA, however, to determine whether it must prepare
an EIS or may issue a FONSI. 40 C.F.R. § 1508.9(a)(1). If the
agency issues a FONSI, then it may proceed with the pro-
posed action. Klamath-Siskiyou Wildlands Ctr. v. Bureau of
Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004).
Here, the BLM prepared an EA, concluded on the basis of
the EA’s findings that the Amendment would not significantly
affect the environment, and issued a DR/FONSI. As noted
above, after Plaintiffs objected, the BLM State Director
affirmed the DR/FONSI with modifications that imposed an
exclusion zone protocol, in addition to the avoidance mea-
sures imposed in the original DR/FONSI, to protect PCRIs
eligible for listing on the National Register. Plaintiffs chal-
lenge the BLM’s modified DR/FONSI on the grounds that (1)
the BLM failed to take a “hard look” at the Amendment’s cul-
tural and environmental impacts because it approved all three
phases of the Amendment without obtaining sufficient infor-
mation about each particular phase of exploration activities;
(2) the BLM did not conduct sufficient analysis of reasonable
alternatives; and (3) the BLM did not conduct sufficient anal-
ysis of cumulative impacts. We consider these arguments in
turn.
1. Failure to Take a “Hard Look” at Cultural and
Environmental Impacts
Plaintiffs argue that the BLM failed to take a “hard look”
at the Amendment’s effects—specifically, effects on Western
Shoshone cultural resources—because it approved all three
phases of the Amendment without knowing the precise loca-
tions of the project’s activities, such as drill sites, access
roads, and support facilities. Plaintiffs contend that, without
these details, the BLM neither conducted a “hard look” analy-
sis of the project, nor adequately informed the public of the
potential impacts of the project, as NEPA requires. The BLM
and Cortez argue that, in light of the exploratory nature of the
TE-MOAK TRIBE v. USDOI 8995
project, the BLM’s analysis and decision comply with NEPA.
They argue that the BLM sufficiently analyzed the potential
impact that the project could have and imposed avoidance and
mitigation measures that account for any unpredictable
impacts on cultural resources.
[2] Although we have not previously reviewed the BLM’s
approval of a phased exploration project, the Interior Board of
Land Appeals (“IBLA”) reviewed a similar NEPA challenge
to a phased exploration project in Great Basin Mine Watch,
159 IBLA 324 (2003).9 Similar to the situation here, in Great
Basin Mine Watch, a mining company submitted to the BLM
a proposal to expand an earlier exploration project. The pro-
posed expansion would disturb an additional 95.55 acres of
land for a total of 100 acres, within a 3,336-acre project area.
Id. at 327, 331. The BLM analyzed the proposed amendment
without specific details regarding the location of the Phase II
and III operations. Id. at 327. The IBLA determined that the
BLM’s failure to include details for phases other than the first
phase of the project did not violate NEPA, because “BLM
compensate[d] for the omission of precise sites for future
activities by analyzing the impacts of approximately 95.55
acres of additional surface disturbance anywhere within the
project area and imposing resource-specific stipulations and
mitigation measures for all activities throughout the entire
project area.” Id. at 354.
[3] 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, inher-
ently involves uncertainties; if mining companies knew the
9
As we discuss below, the plaintiffs in Great Basin Mine Watch also
challenged a phased exploration project under the NHPA and the FLPMA.
8996 TE-MOAK TRIBE v. USDOI
precise location of mineral deposits before drilling, explora-
tion 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 in Great Basin Mine Watch 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 mitiga-
tion measures to account for unknown impacts.
We recognize that in Great Basin Mine Watch, unlike here,
the mining company provided the BLM with access road and
drill site locations for Phase I. See 159 IBLA at 347. We do
not believe, however, that this deficiency renders the BLM’s
approval of the Amendment unreasonable. Phase I exploration
activities, like those for Phases II and III, are uncertain by
design because Cortez must adjust the location of drilling
throughout the course of Phase I. Here, as in Great Basin
Mine Watch, 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.
[4] Additionally, as in Great Basin Mine Watch, the BLM
imposed effective avoidance and mitigation measures to pro-
tect Western Shoshone cultural resources from impacts result-
ing from all three phases of the Amendment. In the modified
DR/FONSI, the BLM State director outlined these measures,
which prevent Cortez from disturbing land in exclusion zones
around PCRIs that are eligible for inclusion on the National
Register unless later authorized to do so by the BLM. Accord-
ingly, before beginning exploration activities, Cortez must
submit 1:24,000 scale maps of the areas to be disturbed. Cor-
tez may start exploration activities only if past surveys show
TE-MOAK TRIBE v. USDOI 8997
that no cultural resources are in the area. If the BLM deter-
mines that a Class III cultural resources survey is needed, an
archaeologist and a Native American observer will survey the
land and make recommendations.10 If Cortez finds previously
undiscovered cultural resources while conducting exploration
activities, it must cease activities within 100 meters of the dis-
covery until the BLM determines whether or not the site is
eligible for the National Register and should thus be protected
by an exclusion zone. The BLM will delineate exclusion
zones to surround any newly discovered sites that might be
eligible for inclusion on the National Register.
[5] 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 there-
fore conclude that the BLM did not violate NEPA by approv-
ing the Amendment without knowing the precise locations of
drill sites, access roads, and other project activities for Phases
I through III.
10
The BLM uses different types of surveys to evaluate areas for the
presence of cultural resources. A Class I survey is “a professionally pre-
pared study that includes a compilation and analysis of all reasonably
available cultural resource data and literature, and a management-focused,
interpretative, narrative overview, and synthesis of the data.” BLM Man-
ual, 8110 — Identifying and Evaluating Cultural Resources 8110.21A.1
(Rel. 8-73, 12/03/04) available at http://www.blm.gov/pgdata/etc/
medialib/blm/wo/Planning_and_Renewable_Resources/coop_agencies/cr_
publications.Par.44865.File.dat/Binder2-2.pdf (last visited June 11, 2010).
A Class II survey is a “probabilistic field survey” or “statistically based
sample survey” that “aid[s] in characterizing the probable density, diver-
sity, and distribution of cultural properties in an area . . . . ” Id.
8110.21B.1. A Class III survey is an “[i]ntensive” survey that involves “a
professionally conducted, thorough pedestrian survey of an entire target
area . . . intended to locate and record all historic properties” and that
“provides managers and cultural resource specialists with a complete
record of cultural properties.” Id. 8110.21C.1, 8110.21C.3.
8998 TE-MOAK TRIBE v. USDOI
2. Failure to Consider Reasonable Alternatives
[6] Plaintiffs also argue that the BLM violated NEPA
because the agency’s discussion of reasonable alternatives in
the Amendment’s EA is inadequate. “The purpose of NEPA
is to require disclosure of relevant environmental consider-
ations that were given a ‘hard look’ by the agency, and
thereby to permit informed public comment on proposed
action and any choices or alternatives that might be pursued
with less environmental harm.” Lands Council v. Powell, 395
F.3d 1019, 1027 (9th Cir. 2005); see 42 U.S.C. § 4332(E)
(requiring agencies to “study, develop, and describe appropri-
ate alternatives to recommended courses of action in any pro-
posal which involves unresolved conflicts concerning
alternative uses of available resources”). Agencies are
required to consider alternatives in both EISs and EAs and
must give full and meaningful consideration to all reasonable
alternatives. Native Ecosystems Council v. U.S. Forest Serv.,
428 F.3d 1233, 1245 (9th Cir. 2005); see also 40 C.F.R.
§ 1508.9(b). “The existence of a viable but unexamined alter-
native renders an environmental impact statement inade-
quate.” Idaho Conservation League v. Mumma, 956 F.2d
1508, 1519 (9th Cir. 1992) (quoting Citizens for a Better Hen-
derson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985)).
[7] Plaintiffs first argue that the BLM should have consid-
ered the alternative of approving only Phase I of the Amend-
ment, rather than approving all three phases of the project, or
that the BLM should have considered an alternative “where
the operator would be required to at least set forth up-front its
Phase I plans.” As discussed earlier, given the uncertainty of
the exploration activities, the BLM imposed mitigation mea-
sures designed to adequately protect cultural resources in all
phases of the Amendment. “NEPA does not require a separate
analysis of alternatives which are not significantly distin-
guishable from alternatives actually considered, or which
have substantially similar consequences.” Headwaters, Inc. v.
Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990)
TE-MOAK TRIBE v. USDOI 8999
(citing N. Plains Res. Council v. Lujan, 874 F.2d 661, 666
(9th Cir. 1989)). 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 alterna-
tive in the EA.
[8] Plaintiffs next argue that the BLM violated NEPA by
failing to seriously analyze any alternative except Cortez’s
chosen project. Specifically, Plaintiffs argue that the BLM’s
analysis of the No Action Alternative was insufficient because
it consisted of only one paragraph.11 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. The
Amendment’s EA tiered to the EA for the original HC/CUEP,
in which the direct impacts of the exploration activities were
analyzed. See N. Idaho Cmty. Action Network v. U.S. DOT,
545 F.3d 1147, 1153 (9th Cir. 2008) (“[A]n agency’s obliga-
tion to consider alternatives under an EA is a lesser one than
under an EIS. . . . [W]ith an EA, an agency only is required
to include a brief discussion of reasonable alternatives.” (cita-
tions and internal quotation marks omitted)).
3. Failure to Assess Cumulative Impacts
[9] Plaintiffs finally contend that the BLM’s cumulative
impact analysis in the Amendment’s EA was insufficient.
“NEPA requires that where ‘several actions have a cumulative
. . . environmental effect, this consequence must be consid-
ered in an EIS.’ ” Neighbors of Cuddy Mountain v. U.S. For-
11
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.” 428 F.3d
at 1246.
9000 TE-MOAK TRIBE v. USDOI
est Serv., 137 F.3d 1372, 1378 (9th Cir. 1998) (quoting City
of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.
1990)); see 40 C.F.R. § 1508.25(c)(3). We also require that an
EA fully address cumulative environmental effects or “cumu-
lative impacts.” See, e.g., Kern v. BLM, 284 F.3d 1062, 1076
(9th Cir. 2002) (“Given that so many more EAs are prepared
than EISs, adequate consideration of cumulative effects
requires that EAs address them fully.” (quoting Council on
Environmental Quality, Considering Cumulative Effects
Under the National Environmental Policy Act 4 (Jan. 1997),
also available at http://ceq.hss.doe.gov/nepa/ccenepa/
ccenepa.htm (last visited June 11, 2010) (emphasis added))).
“Cumulative impact is the impact on the environment which
results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future
actions . . . . Cumulative impacts can result from individually
minor but collectively significant actions taking place over a
period of time.” 40 C.F.R. § 1508.7.
Here, the BLM designated an area in which it needed to
analyze the Amendment’s cumulative impacts (“the cumula-
tive effects area”). The Pediment/Cortez Hills project is a pro-
posed mining operation located within the cumulative effects
area. The BLM acknowledged in the Amendment’s EA that
the Pediment/Cortez Hills project was a “reasonably foresee-
able activity.” The BLM’s knowledge of the Pediment/Cortez
Hills project in 2004 can also be reasonably inferred by its
December 2005 publication of a “Notice of Intent to Prepare
an Environmental Impact Statement to Analyze the Proposed
Amendment to the Pipeline/South Pipeline Plan of Operations
(NVN-067575) for the Cortez Hills Expansion Project.” 70
Fed. Reg. 72,308 (Dec. 2, 2005). Therefore, the BLM was
required to analyze the cumulative impacts of the Amendment
and the Pediment/Cortez Hills project. See 40 C.F.R.
§ 1508.7.
[10] In a cumulative impact analysis, an agency must take
a “hard look” at all actions. An EA’s analysis of cumulative
TE-MOAK TRIBE v. USDOI 9001
impacts “must give a sufficiently detailed catalogue of past,
present, and future projects, and provide adequate analysis
about how these projects, and differences between the proj-
ects, are thought to have impacted the environment.” Lands
Council, 395 F.3d at 1028. “General statements about ‘possi-
ble effects’ and ‘some risk’ do not constitute a ‘hard look’
absent a justification regarding why more definitive informa-
tion could not be provided.” Neighbors of Cuddy Mountain,
137 F.3d at 1380. “[S]ome quantified or detailed information
is required. Without such information, neither the courts nor
the public . . . can be assured that the [agency] provided the
hard look that it is required to provide.” Id. at 1379.
[11] Here, the Amendment’s EA included a cumulative
impacts section that purported to review past, present, and
reasonably foreseeable activities in the cumulative effects
area, by examining specific resources that may be affected.
The EA, however, failed to include the required “quantified
or detailed information.” See id. A comparison of the Amend-
ment’s EA with the EAs in Klamath-Siskiyou clearly demon-
strates that the BLM’s analysis of cumulative impacts in the
cumulative effects area did not adequately address the reason-
ably foreseeable mining activities of the Pediment/Cortez
Hills project. See 387 F.3d at 997.
A review of the BLM’s analysis of the Amendment’s
cumulative impact on two of these resource sec-
tions—Cultural Resources and Native American Religious
Concerns—is instructive. We note that the bulk of the EA’s
discussion in these two sections 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 Amend-
ment] 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
9002 TE-MOAK TRIBE v. USDOI
avoided or mitigated. The EA’s discussion of the Amend-
ment’s direct effects in lieu of a discussion of cumulative
impacts is inadequate. See id. at 994 (holding that an EA’s
cumulative impact analysis was inadequate when, among
other deficiencies, “[a] considerable portion of each section
discusses only the direct effects of the project at issue on its
own minor watershed”).
[12] 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.12 Instead, it concludes that “[n]o incremen-
tal cumulative effects would occur to cultural resources as a
result of the proposed project.” To reach this conclusion, the
EA reasons that all of the impacts from the expanded explora-
tion activities will be avoided or mitigated and that all
“[e]xisting, proposed, and reasonably foreseeable activities
would avoid or mitigate all known and discovered resources.”
[13] 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 sedi-
mentation and potential for erosion.” This, despite the discus-
sion earlier in the EA that the Amendment “could potentially
result in direct impacts to groundwater resources where
groundwater is encountered in the drill holes,” and the BLM’s
prediction of significant impacts from dewatering as a result
of the Pediment/Cortez Hills project and other Cortez projects
12
The EA’s brief reference to the “indirect cumulative effect [of] the
removal of artifacts by non-Cortez individuals using an expanded road
system to access previously inaccessible areas,” is more accurately
described as a direct effect rather than a cumulative one, because it would
result from the Amendment itself. Cf. 40 C.F.R. § 1508.7 (describing
cumulative impacts as a combination of impacts of the present action with
impacts of other actions).
TE-MOAK TRIBE v. USDOI 9003
previously approved within the cumulative effects area. The
EA’s vague discussion of cumulative impacts can be found in
virtually every subpart of the section.
In Klamath-Siskiyou, we rejected as inadequate EAs that
listed different environmental concerns (e.g. air quality, water
quality, etc.) with checkboxes marked “No,” indicating that
the environmental factor in question would not suffer any
cumulative effects. 387 F.3d at 995. A number of these fac-
tors, however, were annotated to note that they would or
could be impacted by the project, but that “[i]mpacts are
being avoided by project design.” Id. We held that this was
insufficient because “[t]he EA[s] [are] silent as to the degree
that each factor will be impacted and how the project design
will reduce or eliminate the identified impacts.” Id.
[14] We acknowledge that the EA here, unlike the EAs in
Klamath-Siskiyou, does describe some of the ways in which
the Amendment’s impacts will be mitigated. The Amend-
ment’s EA contains a description of some mitigation mea-
sures, 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, pro-
posed, or reasonably foreseeable projects, including the
Pediment/Cortez Hills project. Further, as in Klamath-
Siskiyou, the EA fails to explain the nature of unmitigated
impacts of the Amendment’s expanded exploration activities
with other existing, proposed, and reasonably foreseeable activi-
ties.13
13
Although the EA tiers to a number of EAs and EISs, including the
original HC/CUEP’s EA, these documents do not supplement the EA’s
incomplete analysis. Like the EA for the Amendment, the EA for the orig-
inal HC/CUEP did not discuss cumulative effects; rather, it referred to the
direct effects of only the HC/CUEP within the cumulative effects area:
“The effects of the activities to be conducted under the Proposed Action
within the cumulative effects study area are expected to be minimal and
9004 TE-MOAK TRIBE v. USDOI
Despite the above deficiencies, Cortez argues that there
was no need for a cumulative impact analysis because there
are no cumulative impacts to analyze. Cortez suggests that it
is not enough to show that potential cumulative impacts were
not analyzed; rather, Plaintiffs must prove that cumulative
impacts will actually occur. Cortez thus adopts the district
court’s reasoning, which concluded that the cumulative
impacts analysis of the Amendment’s EA was sufficient
because Plaintiffs “failed to identify how [the Pediment/
Cortez Hills project] will have a cumulative impact when
combined with the HC/CUEP Amendment Project.”
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 bur-
den is not an onerous one. In City of Carmel-By-The-Sea v.
United States Department of Transportation, 123 F.3d 1142
(9th Cir. 1997), we observed that the plaintiffs met their bur-
den in raising a cumulative impacts claim under NEPA,
despite failing to specify a particular project that would cumu-
latively impact the environment along with the proposed proj-
ect. Id. at 1161. We declined to impose a greater burden,
noting that “the [Defendants] failed first; they did not prop-
erly describe other area projects or detail the cumulative
impacts of these projects.” Id. Moreover, in Klamath-
Siskiyou, we noted that when “the potential for . . . serious
cumulative impacts is apparent,” the BLM needed to provide
more details of its cumulative impact analysis in an EA before
concluding that there were no significant cumulative effects.
387 F.3d at 996.
relatively short-term due to the nature of the proposed exploration activi-
ties and the special environmental protection measures to be used in the
study area . . . .” Further, other EISs to which the Amendment’s EA is
tiered—the Pipeline/South Pipeline Pit Expansion EISs and the South
Pipeline Project Final EIS—do not address impacts to Native American
uses of the land.
TE-MOAK TRIBE v. USDOI 9005
[15] Applying City of Carmel and Klamath-Siskiyou here,
we conclude that in order for Plaintiffs to demonstrate that the
BLM failed to conduct a sufficient cumulative impact analy-
sis, 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. See id. 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.” Balt. Gas & Elec.
Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(emphasis added).
[16] Instead, we conclude that Plaintiffs must show only
the potential for cumulative impact. Here, Plaintiffs more than
carry their burden by demonstrating that both the Amendment
and the Pediment/Cortez Hills project will directly impact the
same resources within the cumulative effects area, and thus
have the potential for cumulative impacts. Although not nec-
essary, Plaintiffs bolster their claim of cumulative impacts to
Cultural Resources and Native American Religious Concerns
by submitting the ethnographic study prepared by the BLM
for the original Pediment Deposit mining project. The study
predicted that the mine could (1) impede the Western Shosho-
ne’s visual and physical access to Mt. Tenabo; (2) decrease
the supply of pinyon pine available for harvesting by the
Western Shoshone; and (3) disturb Western Shoshone burial
sites. These same concerns could be affected by the explora-
tion activities conducted under the Amendment, potentially
resulting in a total impact that is greater than that caused by
either the Pediment/Cortez Hills project or the Amendment.14
14
Although the EA is vague about the activities that might impact Cul-
tural Resources and Native American Religious Concerns, we do know
that drill rigs will be used and that there will be surface disturbance in 50-
acre plots, for a total of 250 acres. Because Mount Tenabo is located
within the project area, these activities could, like the Pediment/Cortez
Hills project, impede both physical and visual access to the mountain.
9006 TE-MOAK TRIBE v. USDOI
See Klamath-Siskiyou, 387 F.3d at 994 (“Sometimes the total
impact from a set of actions may be greater than the sum of
the parts. . . . [T]he addition of a small amount here, a small
amount there, and still more at another point could add up to
something with a much greater impact . . . .”).
[17] We conclude that BLM’s analysis of the cumulative
impacts of the proposed Amendment and the Pediment/Cortez
Hills project was insufficient, and therefore violated NEPA.
NEPA requires the BLM to take a hard look at the cumulative
impacts of the Amendment and other projects within the
cumulative effects area; this it failed to do. We therefore hold
that the district court erred in granting summary judgment for
Defendants on this issue and remand to the district court with
instructions to grant summary judgment for Plaintiffs and
remand to the BLM for further proceedings. In light of our
disposition of this issue, we need not address Plaintiffs’ argu-
ment that the Amendment and the Pediment/Cortez Hills proj-
ect are “cumulative actions” under NEPA and should be
considered in one comprehensive EIS. See Klamath-Siskiyou,
387 F.3d at 997, 1000 (observing that in light of an insuffi-
cient cumulative impact analysis, the court could not deter-
mine whether a single EA or EIS was needed); 40 C.F.R.
§ 1508.25(a)(2).15
Also like the Pediment/Cortez Hills project, surface disturbance from the
Amendment could disturb Western Shoshone burial sites. Finally, in the
discussion of forestry impacts, the EA predicts that “some [pinyon pine]
trees may be removed for construction of access roads and drill sites.” The
combined destruction of pinyon pine by both the Pediment/Cortez Hills
project and the Amendment could, cumulatively, result in the decreased
availability of pinyon pine nuts for harvesting. None of these possibilities
is discussed in the EA’s “Cultural Resources” or “Native American Reli-
gious Concerns” sections.
15
Because we conclude that the cumulative impact analysis was incom-
plete, we need not address Plaintiffs’ argument that the BLM failed to dis-
cuss the cumulative impacts of the Amendment with the Cortez
Underground Exploration Project and Cortez’s geothermal lease project.
TE-MOAK TRIBE v. USDOI 9007
In sum, although we conclude that in the EA, the BLM
took a hard look at the direct impacts of the Amendment and
that its discussion of reasonable alternatives was proper, we
hold that the BLM violated NEPA’s mandate by failing to
conduct a proper analysis of the cumulative impacts of the
Amendment and the Pediment/Cortez Hills project on West-
ern Shoshone cultural resources in the area. We therefore con-
clude that the BLM’s approval of the Amendment was
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law . . . .” 5 U.S.C. § 706(2)(A).
B. National Historic Preservation Act
[18] Plaintiffs also argue that the BLM’s approval of the
Amendment violated section 106 of the NHPA. Section 106
requires the BLM to “take into account the effect of [an]
undertaking on any district, site, building, structure, or object
that is included in or eligible for inclusion in the National
Register [of Historic Places].” 16 U.S.C. § 470f. Like NEPA,
“[s]ection 106 of NHPA is a ‘stop, look, and listen’ provision
that requires each federal agency to consider the effects of its
programs.” Muckleshoot Indian Tribe v. U.S. Forest Serv.,
177 F.3d 800, 805 (9th Cir. 1999); cf. United States v. 0.95
Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993) (“NHPA is
similar to NEPA except that it requires consideration of his-
toric sites, rather than the environment.”).
The NHPA explicitly delegates authority to the Advisory
Council on Historic Preservation “to promulgate such rules
and regulations as it deems necessary to govern the imple-
mentation” of section 106. 16 U.S.C. § 470s. We have previ-
Plaintiffs will have the opportunity to pursue these arguments before the
agency when the BLM reexamines the cumulative impacts section. We
also note that some of these arguments may be at issue in another case,
South Fork Band Council of Western Shoshone of Nevada v. United States
Department of the Interior, 588 F.3d 718 (9th Cir. 2009).
9008 TE-MOAK TRIBE v. USDOI
ously determined that federal agencies must comply with
these regulations. See Pit River Tribe v. U.S. Forest Serv., 469
F.3d 768, 787 (9th Cir. 2006); Muckleshoot Indian Tribe, 177
F.3d at 805. The section 106 process requires an agency to
make a reasonable and good faith effort to identify
historic properties; determine whether identified
properties are eligible for listing on the National
Register . . . ; assess the effects of the undertaking
on any eligible historic properties found; determine
whether the effect will be adverse; and avoid or miti-
gate any adverse effects. The [agency] must confer
with the State Historic Preservation Officer
(“SHPO”) and seek the approval of the Advisory
Council on Historic Preservation (“Council”).
Muckleshoot Indian Tribe, 177 F.3d at 805 (citations omit-
ted).
In some cases, “[p]roperties of traditional religious and cul-
tural importance to an Indian tribe . . . may be determined to
be eligible for inclusion on the National Register.” 16 U.S.C.
§ 470a(d)(6)(A). The BLM refers to such properties as “prop-
erties of cultural and religious importance” or “PCRIs.” The
NHPA implementing regulations require the BLM, at all
stages of the section 106 process, to consult with tribes that
“attach[ ] religious and cultural significance to historic prop-
erties that may be affected by an undertaking.” 36 C.F.R.
§ 800.2(c)(2)(ii). “The goal of consultation is to identify his-
toric properties potentially affected by the undertaking . . . .”
Id. § 800.1.
The BLM consulted with the Tribe in 2000 to determine if
there were any PCRIs within the project area, in connection
with Cortez’s original proposal to conduct HC/CUEP explora-
tion activities. On July 27, 2001, the Tribe responded to the
BLM’s inquiries by submitting a map outlining the bounda-
TE-MOAK TRIBE v. USDOI 9009
ries of what it called “traditional cultural property.”16 On the
basis of this submission, further consultations with the Tribe,
and various ethnographic reports regarding the area, the BLM
evaluated several sites to determine whether they were eligi-
ble for listing on the National Register.17 In April 2004, the
BLM determined that two sites were eligible: (1) Horse Can-
yon and (2) the top of Mount Tenabo and the White Cliffs of
Mount Tenabo (a combination of two of the evaluated PCRIs).18
Under section 106, the BLM was required to consider the
Amendment’s effects on the two sites, identify any adverse
effects, and avoid or mitigate any adverse effects. See 36
C.F.R. §§ 800.5, 800.6. The BLM, in the original DR/FONSI
for the Amendment, concluded that because of the avoidance
measures outlined in the EA, “there is no potential for impacts
to cultural resources from surface disturbance exploration
activities.” After Plaintiffs complained that the EA violated
the NHPA, the BLM State Director reviewed the DR/FONSI
and added the exclusion zone protocol. Plaintiffs continue to
argue, as they did before the BLM State Director, that the
BLM violated the NHPA because (1) the BLM failed to ade-
quately consult with the Tribe and (2) the BLM State Direc-
tor’s decision was incorrect and unsupported by the record.
16
The term “traditional cultural property” or “TCP,” is a term used by
the National Park Service to refer to “properties of traditional religious
and cultural importance” that may be eligible for listing on the National
Register under 16 U.S.C. § 470a(d)(6)(A). See Patricia L. Parker &
Thomas F. King, National Park Service, National Register Bulletin 38,
Guidelines for Evaluating and Documenting Traditional Cultural Proper-
ties 1 (1998), available at http://www.nps.gov/history/nr/publications/
bulletins/pdfs/nrb38.pdf (last visited June 11, 2010). The term “TCP” is
analogous to “PCRI”; it describes land that Native American tribes have
identified as having cultural or religious significance.
17
Five sites were evaluated: (1) Shoshone Camp; (2) the top of Mount
Tenabo; (3) pinyon pine in the Pediment area; (4) the White Cliffs on the
Pediment side of Mount Tenabo; and (5) Horse Canyon.
18
The BLM has determined that other sites on the pediment, such as
pinyon camps and longer-term occupation areas, were National Register
eligible as ethnohistoric/archaeological sites, rather than as PCRIs.
9010 TE-MOAK TRIBE v. USDOI
1. Insufficient Consultation with the Tribe
[19] We first consider Plaintiffs’ argument that the BLM
approved the Amendment without complying with its duty
under the NHPA to consult with the Tribe. The NHPA imple-
menting regulations require agencies to provide a tribe with
“a reasonable opportunity to identify its concerns about his-
toric properties, advise on the identification and evaluation of
historic properties, including those of traditional religious and
cultural importance, articulate its views on the undertaking’s
effects on such properties, and participate in the resolution of
adverse effects.” 36 C.F.R. § 800.2(c)(2)(ii)(A).19 Further,
“[c]onsultation [with Indian tribes] should commence early in
the planning process, in order to identify and discuss relevant
preservation issues,” id., and “must recognize the
government-to-government relationship between the Federal
Government and Indian tribes,” id. § 800.2(c)(2)(ii)(C).
Plaintiffs argue that the BLM failed to initiate consultation
with the Tribe in a timely fashion. Cortez proposed the
Amendment to the BLM in July 2003. The BLM waited a full
year to contact the Tribe, notifying the Tribe about the pro-
posed Amendment in a July 28, 2004, letter after it had con-
tacted all other “consulting parties.” The BLM sent this letter
to the Tribe approximately one month before the BLM sub-
mitted the EA for the Amendment for public comment and
three months before the BLM issued its first DR/FONSI. The
BLM also left at least two phone messages with the Tribe in
September. Although consultation about the Amendment
between the BLM State Director and the Tribe eventually
19
In arguing that the BLM violated the NHPA’s consultation require-
ments, Plaintiffs argue that the BLM was not responsive to GBMW’s and
WSDP’s October 2004 requests for more information regarding the proj-
ect. This argument fails because neither group is a federally recognized
tribe to which the NHPA’s consultation requirements extend nor do Plain-
tiffs point to evidence in the record showing that either party was acting
as “representatives designated or identified by the tribal government.” See
36 C.F.R. § 800.2(c)(2)(ii)(C).
TE-MOAK TRIBE v. USDOI 9011
took place, the consultation occurred after the BLM issued its
DR/FONSI.
The BLM and Cortez argue that, in light of the BLM’s pre-
vious consultation with the Tribe for the original HC/CUEP
and other projects in the area, the BLM provided the Tribe
with a sufficient “opportunity to identify its concerns about
historic properties” as provided by 36 C.F.R.
§ 800.2(c)(2)(ii)(A). We agree. Notably, this case has a some-
what unique historic background, because the BLM began
consulting with the Tribe while working on the original HC/
CUEP and other projects. Indeed, as a result of one of the eth-
nographic studies that was a part of this earlier process,
Mount Tenabo/White Cliffs and Horse Canyon were desig-
nated as National Register eligible PCRIs. We also note that
the Amendment did not propose to enlarge the project area in
which exploration would take place; rather, it increased the
amount of land that could be disturbed within the project area.
Plaintiffs acknowledge these past efforts by explicitly stating
that they do not challenge the BLM’s previous efforts to iden-
tify historical, cultural, or religious sites within the project
area. As emphasized by Plaintiffs, “[t]he issue is whether
BLM properly conducted government-to-government consul-
tation on this Project . . . .”
Here, Plaintiffs do not identify any new information that
the Tribe would have brought to the attention of the BLM had
it been consulted earlier in the approval process for the
Amendment. Significantly, they concede that the BLM’s
research and investigation of culturally important sites was
adequate for the original HC/CUEP EA. They thus fail to
show or even argue that early consultation would have pre-
vented any adverse effect on any yet-to-be identified National
Register eligible PCRI. Additionally, Plaintiffs do not identify
any new information regarding how the additional exploration
would adversely affect the identified PCRIs, again failing to
demonstrate how early consultation with the Tribe might have
affected the BLM’s determination.
9012 TE-MOAK TRIBE v. USDOI
Moreover, the fundamental purpose of the NHPA is to
ensure the preservation of historical resources. See 16 U.S.C.
§ 470a(d)(1)(A) (requiring the Secretary to “promulgate regu-
lations to assist Indian tribes in preserving their particular his-
toric properties” and “to encourage coordination . . . in
historic preservation planning and in the identification, evalu-
ation, protection, and interpretation of historic properties”);
see also Nat’l Indian Youth Council v. Watt, 664 F.2d 220,
226 (10th Cir. 1981) (“The purpose of the National Historic
Preservation Act (NHPA), is the preservation of historic
resources.”). Early consultation with tribes is encouraged by
the regulations “to ensure that all types of historic properties
and all public interests in such properties are given due con-
sideration . . . .” 16 U.S.C. § 470a(d)(1)(A); cf. Pit River
Tribe, 469 F.3d at 785-86 (holding that dilatory environmen-
tal review is insufficient to comply with NEPA because “in-
flexibility may occur if delay in preparing an EIS is allowed:
After major investment of both time and money, it is likely
that more environmental harm will be tolerated.” (quoting
Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir.
1988) (internal quotation marks and citations omitted))).
While the Plaintiffs are correct that the NHPA’s implement-
ing regulations “recognize the government-to-government
relationship between the Federal Government and Indian
tribes,” they do so to ensure that consultation “be conducted
in a manner sensitive to the concerns and needs of the Indian
tribe . . . .” 36 C.F.R. § 800.2(c)(2)(ii)(C).
[20] In sum and as reflected in the record, the BLM has
consulted with the Tribe regarding PCRIs within the project
area for many years. In addition, the Tribe has made no show-
ing that it would have provided new information had it been
consulted again earlier in the Amendment’s approval process.
We therefore conclude that the BLM did not violate its obli-
gation to consult with the Tribe and thus did not violate the
NHPA. 36 C.F.R. § 800.1; see also Muckleshoot Indian Tribe,
177 F.3d at 806-07; Morongo Band of Mission Indians v.
TE-MOAK TRIBE v. USDOI 9013
FAA, 161 F.3d 569, 582 (9th Cir. 1998); cf. Pit River Tribe,
469 F.3d at 785-86.20
2. Incorrect or Unsupported “No Effect”
Determination
Next, Plaintiffs argue that, even if the Tribe was properly
consulted, the BLM’s “no effect” determination under the
NHPA was improper. We are not convinced.
[21] First, we do not agree that approval of a phased proj-
ect in its entirety always results in a violation of the NHPA.
As noted above, the NHPA, like NEPA, is a procedural stat-
ute 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 explora-
tion 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. See, e.g.,
Great Basin Mine Watch, 159 IBLA at 356 (holding that the
BLM did not violate the NHPA when it approved all phases
of a project without knowing exact locations of access roads
and drill sites, because it had surveyed the entire project area
for cultural properties, identified sites eligible for listing in the
National Register, and imposed conditions “to ensure avoid-
ance of impacts to those eligible sites”).
20
We note that Plaintiffs also complain that the DR/FONSI relies on a
2004 Programmatic Agreement that the BLM entered into with the
Nevada SHPO, Cortez, and the Advisory Council on Historic Preserva-
tion, pursuant to 36 C.F.R. § 800.14(b), to guide the BLM’s management
of cultural resources in the project area. According to Plaintiffs, the 2004
agreement cannot substitute for consultation with the Tribe, because the
Tribe is not a signatory to the document. As the State Director’s decision
notes, however, the BLM did not rely on the 2004 agreement, but rather
on a 1992 Programmatic Agreement between the same parties. In light of
this fact, we place no significance on the initial DR/FONSI’s reference to
the 2004 Programmatic Agreement.
9014 TE-MOAK TRIBE v. USDOI
Second, Plaintiffs’ argument that the exclusion zone proce-
dures do not offer adequate protection to cultural resources
under the NHPA is without merit.21 According to Plaintiffs,
the National Register eligible PCRIs in the project area are of
a “landscape-scale” and therefore are not susceptible to pro-
tection by “zones.” Plaintiffs are correct that the PCRIs desig-
nated by the BLM as eligible for the National Register
encompass large areas of land. The NHPA, however, does not
mandate protection of all parts of an eligible PCRI. Section
106 requires a federal agency “[to] take into account the effect
of the undertaking on any district, site, building, structure, or
object that is included in or eligible for inclusion in the
National Register.” 16 U.S.C. § 470f; see also 36 C.F.R.
§ 800.6(b). The NHPA regulations, however, define an “ef-
fect” as an “alteration to the characteristics of a historic prop-
erty qualifying it for inclusion in or eligibility for the National
Register.” 36 C.F.R. § 800.16; see also id. § 800.5(a)(1)
(defining an “adverse effect” as the direct or indirect alter-
ation of “any of the characteristics of a historic property that
qualify the property for inclusion in the National Register in
a manner that would diminish the integrity of the property’s
location, design, setting, materials, workmanship, feeling, or
association”).
[22] Here, the eligible PCRIs’ characteristics described in
the BLM’s April 2004 report are discrete features such as the
top of Mt. Tenabo, the “white quartz ledge on the south face
of Mt. Tenabo” called the White Cliffs, a network of caves
within the mountain, and burial locations. Characteristics that
made Horse Canyon eligible included the specific resources
available there: perennial surface water and unique medicinal
21
We also dismiss Plaintiffs’ argument that the BLM’s mitigation mea-
sures fail to require adequate consultation with the Tribe because the BLM
alone will make certain determinations without input from the Tribe, such
as the precise location of exclusion zones. Plaintiffs’ argument fails
because the actions to which Plaintiffs refer are post-consultation and
post-approval mitigation measures; section 106 does not mandate consul-
tation at this post-approval stage of the project.
TE-MOAK TRIBE v. USDOI 9015
and edible plants. 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.
[23] Because we conclude that the BLM’s approval of all
phases of the Amendment does not constitute a violation of
the NHPA, and that the exclusion zone protocol sufficiently
protects the features that make the designated PCRIs National
Register eligible, we hold that the BLM’s “no effect” determi-
nation under the NHPA was proper.
C. Federal Land Policy and Management Act
[24] Last, we address Plaintiffs’ argument that the BLM’s
approval of the Amendment violated the FLPMA. The
FLPMA requires that the BLM “by regulation or otherwise,
take any action necessary to prevent unnecessary or undue
degradation of the lands.” 43 U.S.C. § 1732(b). The BLM has
promulgated “surface management” regulations to implement
this statutory mandate. See, e.g., 43 C.F.R. § 3809 (partially
codifying Mining Claims Under the General Mining Laws;
Surface Management, 65 Fed. Reg. 69,998-70,132 (Nov. 21,
2000)). The surface management regulations require
“[a]nyone intending to develop mineral resources on the pub-
lic lands [to] prevent unnecessary or undue degradation of the
land,” and they “establish[ ] procedures and standards to
ensure that operators and mining claimants meet this responsi-
bility . . . .” 43 C.F.R. § 3809.1(a). By their terms, the regula-
tions govern the proposals and activities of mining operators.
See id. § 3809.1(b).
Plaintiffs contend that Cortez did not comply with several
regulations implementing the FLPMA. Specifically, Plaintiffs
argue that Cortez failed to submit required information with
9016 TE-MOAK TRIBE v. USDOI
its proposal for the Amendment as required by 43 C.F.R.
§ 3809.401. They also argue that the Amendment’s plan of
operations fails to satisfy a number of performance standards
set forth in 43 C.F.R. § 3809.420. Because Cortez allegedly
failed to fulfill its obligations under these regulations, Plain-
tiffs argue that the BLM failed to prevent unnecessary or
undue degradation of federal lands and therefore violated the
FLPMA when it approved the Amendment. We disagree.
1. Failure to Provide Plan of Operations
Components
Plaintiffs first argue that the BLM’s approval of the
Amendment without obtaining information from Cortez as
required in 43 C.F.R. § 3809.401(b) violated the FLPMA.
Section 3809.401(b) requires that mining operators “describe
the proposed operations at a level of detail sufficient for BLM
to determine that the plan of operations prevents unnecessary
or undue degradation . . . .” 43 C.F.R. § 3809.401(b). The
BLM “require[s] less information about smaller and simpler
mining operations.” 65 Fed. Reg. at 70,004. In general, infor-
mation specified under § 3809.401(b)(2) “is only required to
the extent it is applicable to the operation.” 65 Fed. Reg. at
70,040-42; see also 43 C.F.R. §§ 3809.401(b)(2),
3809.401(b)(5).
We quickly dispose of several of Plaintiffs’ challenges to
alleged deficiencies in the Amendment’s plan of operations
because they are simply not applicable to the Amendment.
We reject Plaintiffs’ vague and unsupported contentions that
(1) the plan of operations failed to contain a number of
detailed plans and descriptions as set forth in 43 C.F.R.
§ 3809.401(b), and (2) the BLM failed to require an interim
management plan under 43 C.F.R. § 3809.401(b)(5), or cross
sections, preliminary or conceptual designs, and operating
plans for approved projects under 43 C.F.R.
§ 3809.401(b)(2)(ii). These regulations apply to mining oper-
ations, not exploration projects like the HC/CUEP. See 43
TE-MOAK TRIBE v. USDOI 9017
C.F.R. § 3809.401(b)(2)(ii) (requiring information only “for
mining areas, processing facilities, and waste rock and tailing
disposal facilities”); 65 Fed. Reg. at 70,042 (explaining that
the interim management plan regulation was added pursuant
to Recommendation 5 of the National Research Council’s
Hardrock Mining on Federal Lands 101 (1999), which
addresses the need for interim plans for mine closure).
With regard to the information that is required, we reject
Plaintiffs’ arguments that the BLM approved the Amendment
without the benefit of a complete description of the proposed
operations, a general schedule of operations, and a monitoring
plan. See 43 C.F.R. § 3809.401(b). These elements can be
found in the Amendment’s proposal and EA. Because Plain-
tiffs cannot demonstrate that the Amendment did not “de-
scribe the proposed operations at a level of detail sufficient
for BLM to determine that the plan of operations prevents
unnecessary or undue degradation,” these arguments fail. 43
C.F.R. § 3809.401(b).
[25] We also reject Plaintiffs’ argument that the BLM’s
approval of the Amendment was improper because it did not
have “[m]aps of the project area at an appropriate scale show-
ing the location of exploration activities, drill sites . . . and
access routes . . . .” 43 C.F.R. § 3809.401(b)(2)(i). They argue
that in so doing, the BLM failed to fulfill its obligation to pre-
vent unnecessary and undue degradation under the FLPMA.
The IBLA considered a similar argument in Great Basin Mine
Watch and concluded that the BLM had not violated 43
C.F.R. § 3809.401(b)(2)(i) or the FLPMA when it approved
a plan of operations for a similarly phased exploration project
that did not “provide any significant details for the phases
other than Phase I.”22 Great Basin Mine Watch, 159 IBLA at
22
The IBLA’s decision considered the BLM’s compliance under the
pre-2001 regulations, which contained slightly different wording and were
organized into sections in a manner different than the current regulations.
159 IBLA at 345, n.9. The differences, however, do not affect our analysis
of the issues here.
9018 TE-MOAK TRIBE v. USDOI
345; see id. at 347-48. In the NEPA and NHPA contexts, we
found Great Basin Mine Watch’s reasoning to be persuasive
regarding the level of detail required for approval of phased
exploration projects. We have no reason to resolve this issue
any differently in the FLPMA context. We therefore conclude
that the BLM’s approval of the Amendment without all of the
details for the separate phases of exploration did not violate
the FLPMA.
2. Failure to Meet Performance Standards
Plaintiffs also argue that the BLM violated the FLPMA
when it approved the Amendment’s plan of operations,
despite its failure to meet two of the performance standards
set forth in 43 C.F.R. § 3809.420. Although a plan of opera-
tions must comply with these performance standards, the
BLM may “approve [a] plan of operations subject to changes
or conditions that are necessary to meet the performance stan-
dards of § 3809.420 and to prevent unnecessary or undue deg-
radation.” 43 C.F.R. § 3809.411(d)(2).
Plaintiffs first contend that Cortez failed to specify access
routes for the Amendment’s additional exploration activities
in violation of 43 C.F.R. § 3809.420(b)(1). That regulation
requires that, “[w]here a notice or a plan of operations is
required, it shall specify the location of access routes . . . .”
While Cortez did not specify access routes at the time of
approval, the BLM set forth in the Amendment’s EA, the
original DR/FONSI, and the modified DR/FONSI, that Cortez
needed to “submit 1:24,000 maps showing the locations of the
proposed drill pads and access roads” prior to any earth-
disturbing activities.
[26] Plaintiffs also argue that, in approving the Amend-
ment, the BLM failed to protect cultural resources pursuant to
43 C.F.R. § 3809.420(b)(8). The regulation mandates that:
(i) Operators shall not knowingly disturb, alter,
injure, or destroy any scientifically important pale-
TE-MOAK TRIBE v. USDOI 9019
ontological remains or any historical or archaeologi-
cal site, structure, building or object on Federal
lands.
(ii) Operators shall immediately bring to the atten-
tion of the authorized officer any cultural and/or
paleontological resources that might be altered or
destroyed on Federal lands by his/her operations, and
shall leave such discovery intact until told to proceed
by the authorized officer. The authorized officer
shall evaluate the discoveries brought to his/her
attention, take action to protect or remove the
resource, and allow operations to proceed within 10
working days after notification to the authorized
officer of such discovery.
43 C.F.R. § 3809.420(b)(8)(i)-(ii). As it did with the access
routes in the Amendment’s EA and DR/FONSI, the BLM
imposed conditions on the Amendment’s plan of operations
that served to fulfill this performance standard. Under the EA
and DR/FONSI, once Cortez has provided maps showing spe-
cific drill sites, the BLM must take affirmative steps to evalu-
ate cultural resources in the area and to protect those
resources through avoidance measures.23 Further, the EA
23
The EA acknowledges that in some cases, proposed earth-disturbing
activities may not be able to avoid sites eligible for the National Register.
Section 3809.420(b)(8)(ii), however, does not appear to require an opera-
tor to avoid cultural resources at any cost: the operator “shall leave such
discovery intact until told to proceed by the authorized officer.” Id.
In their reply brief, Plaintiffs argue that 43 C.F.R. § 3809.420(b)(8)
mandates the protection of a broader set of cultural resources than are pro-
tected by the NHPA. For this reason, Plaintiffs argue, the mitigation mea-
sures imposed by the BLM, which are directed only at protecting PCRIs
eligible for inclusion on the National Register pursuant to the NHPA, do
not protect other cultural resources and therefore do not fulfill the perfor-
mance standard in § 3809.420(b)(8). Because Plaintiffs failed to pursue
this line of argument in their opening brief, and because Plaintiffs fail to
support this argument beyond its bare assertion, we deem the argument
waived. See Entm’t Research Group v. Genesis Creative Group, 122 F.3d
1211, 1217 (9th Cir. 1997).
9020 TE-MOAK TRIBE v. USDOI
requires that Cortez, “within 24 hours, notify proper authori-
ties and the BLM if subsurface cultural resources are discov-
ered during construction, operation, or reclamation activities”
and to “immediately cease earth-disturbing activities within
100 meters of the discovery, until the discovery can be exam-
ined by the proper authorities and/or a BLM-approved archae-
ologist.” Under the EA, Cortez can “only resume [earth-
disturbing activities] once cleared by the BLM or other appro-
priate authority.” These procedures were later modified by the
State Director to provide even further protection to any newly
discovered historical, archaeological, or paleontological
resources. Consequently, we conclude that the Amendment
meets the performance standards in §§ 3809.420(b)(1) and
3809.420(b)(8) and affirm the district court’s award of sum-
mary judgment to the BLM and Cortez on Plaintiffs’ FLPMA
claims.
III. Conclusion
Because the BLM approved the Amendment to the HC/
CUEP in violation of NEPA, we reverse the district court’s
award of summary judgment to Defendants and remand to the
district court so that it may enter summary judgment in favor
of Plaintiffs on their NEPA claim and remand the matter to
the BLM for further proceedings. On the NHPA and FLPMA
claims, we affirm the district court’s grant of summary judg-
ment to Defendants. AFFIRMED in part and REVERSED in
part, and REMANDED for further proceedings consistent
with this opinion. Each side shall bear its own costs on
appeal.