Center for Biological Diversity v. United States Department of the Interior

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL DIVERSITY; 
WESTERN LAND EXCHANGE PROJECT;
SIERRA CLUB,
Plaintiffs-Appellants, No. 07-16423
v. D.C. No.
UNITED STATES DEPARTMENT OF THE  CV-01-01758-ROS
INTERIOR; BUREAU OF LAND ORDER AND
MANAGEMENT, OPINION
Defendants-Appellees,
ASARCO LLC,
Defendant-intervenor-Appellee.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding

Argued and Submitted
February 10, 2009—San Francisco, California

Filed September 23, 2010

Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher;
Dissent by Judge Tallman

16143
16146 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI

COUNSEL

Roger Flynn, Jeffrey C. Parsons, WESTERN MINING
ACTION PROJECT, Lyons, Colorado, for the appellants.

Edward S. Geldermann, Mark R. Haag, US DEPARTMENT
OF JUSTICE, Washington, D.C., Cynthia M. Parsons,
OFFICE OF THE U.S. ATTORNEY, Phoenix, Arizona; Nor-
man Daniel James, FENNEMORE CRAIG PC, Phoenix, Ari-
zona, for the appellees.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16147
ORDER

This court’s opinion filed September 14, 2009, and reported
at 581 F.3d 1063, is withdrawn, and is replaced by the
attached Opinion and Dissent.

The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc, filed October 29, 2009,
is DENIED. Judge Tallman voted to grant the petition for
rehearing en banc.

No further petitions for rehearing or rehearing en banc will
be accepted.

OPINION

W. FLETCHER, Circuit Judge:

The Center for Biological Diversity, the Western Land
Exchange Project, and the Sierra Club (collectively, “Appel-
lants”) bring suit against Asarco LLC (“Asarco”), a mining
company, and the Department of Interior and the Bureau of
Land Management (collectively, “BLM”). Appellants contend
that the BLM’s approval of a land exchange violates the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321-70; the Federal Land Policy and Management Act
(“FLPMA”), 43 U.S.C. §§ 1701-87; and the Mining Law of
1872, 30 U.S.C. §§ 21-54.

If the proposed exchange does not occur, the land will con-
tinue to be owned by the United States. In that event, Asarco
will be permitted to conduct mining operations on the land
only if it complies with the Mining Law of 1872. Specifically,
16148 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Asarco will not be able to conduct a new mining operation on
the land without first submitting a Mining Plan of Operations
(“MPO”) to the BLM. The MPO would have to include
detailed information about the operations, management, moni-
toring, and environmental impacts of the proposed mining
activities. The BLM would then have to approve the MPO
before the new mining could proceed.

If the proposed exchange occurs, Asarco would take fee
simple ownership of the exchanged land. In that event, Asar-
co’s use of the land would not be subject to the requirements
of the Mining Law of 1872. Asarco has spent sixteen years,
and considerable amounts of time and money, seeking to
achieve private ownership of the exchanged land, which
would allow Asarco to avoid having to prepare the MPOs that
are required so long as the land remains in public hands.

As part of the process of approving the land exchange, the
BLM prepared a Final Environmental Impact Statement
(“FEIS”) pursuant to NEPA. In the FEIS, the BLM assumed
without analysis that the MPO process would impose no con-
straints on, and would have no effect on, the manner in which
Asarco would conduct new mining operations on the
exchanged land. That is, the BLM assumed that the manner
and extent of Asarco’s new mining operations would be the
same whether or not the United States owned the land.
Because of this assumption, the BLM did not compare the
environmental effects of exchanging the land with the effects
of not exchanging the land.

Under these circumstances, we hold that the BLM has not
“taken a ‘hard look’ at the environmental consequences of its
proposed action” in violation of NEPA, and that its action was
therefore arbitrary and capricious. Blue Mountain Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998).
We also hold that the BLM’s approval of the proposed land
exchange was a violation of FLPMA and similarly arbitrary
and capricious. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16149
1992). We therefore reverse the decision of the district court
approving the actions of the BLM.

I. Background

Asarco owns and operates the Ray Mine complex in Gila
and Pinal Counties, Arizona. The complex now includes a
265,000 ton-per-day open pit copper mine, a copper smelter
with an acid plant, solution extraction/electrowinning plants,
mills, concentrators, leaching systems, and related support
facilities. Ore from the mine is transported eighteen miles to
the Hayden Smelter for processing. In 1996, the complex pro-
duced 430 million pounds of copper anodes, over 70 million
pounds of copper cathodes, 1.3 million ounces of silver in
concentrate, and 623,000 tons of sulfuric acid. The Ray Mine
is the second most productive copper mine in Arizona and the
third most productive copper mine in the United States.

In 1994, Asarco proposed a land exchange with the BLM
that would consolidate its holdings and expand its mining
operations at the complex. As amended in 1997, the proposed
land exchange would convey to Asarco in fee simple thirty-
one parcels of public land totaling 10,976 acres (the “selected
lands”). In return, Asarco would convey to the BLM eighteen
parcels of private land totaling roughly 7,300 acres (the “of-
fered lands”). FLPMA authorizes the Secretary of Interior to
approve land exchanges. 43 U.S.C. § 1716.

The United States owns, and the BLM administers as full
estates, 8,196 acres of the selected lands. The remaining 2,780
acres of the selected lands are owned and administered as
“split estates.” Asarco owns or is purchasing, in transactions
not at issue in this appeal, the surface estate of these lands,
while the United States owns and the BLM administers the
mineral estate. Twenty-three of the thirty-one parcels of
selected lands are located near the Ray Mine and the commu-
nity of Ray, Arizona. Five of the parcels are located twelve
to fifteen miles southeast of the Ray Mine, near the communi-
16150 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
ties of Hayden and Winkleman, Arizona. The remaining three
parcels are located about 50 miles west of the Ray Mine near
the community of Casa Grande, Arizona.

The selected lands provide important wildlife and plant
habitat, including high priority reintroduction habitat for
desert bighorn sheep, 6,860 acres of endangered desert tor-
toise habitat, and potential habitat for threatened and endan-
gered birds. Upland plant communities cover 99.2% of the
selected lands and include riparian plant communities and
three plant species designated for special status by the BLM.
Some of the selected lands are immediately adjacent to the
White Canyon Area of Critical Environmental Concern, and
some are adjacent to or in close proximity to the White Can-
yon Wilderness. The selected lands include seventy-eight
archaeological sites, of which forty are regarded as eligible
for nomination to the National Register of Historic Places.

The selected lands are now encumbered by 751 mining
claims or mill site claims under the Mining Law of 1872, of
which 747 are held by Asarco. These claims are unpatented,
and the BLM has not determined if they are valid. Every par-
cel of the selected lands except for Parcel CH-5 (comprising
480 acres) is encumbered by at least one such claim.

Asarco and the BLM are forthright in stating that they fore-
see the following five mining and mining-related uses for the
selected lands following the land exchange. These uses are
described, with specified acreage, in the FEIS as follows:

(1) Existing mining: 272 acres (2%) already have had and
would continue to have substantial surface disturbance due to
Asarco’s mining operations.

(2) Production operations and support areas: 3,614 acres
(33%) would be used to expand open pits, construct haul
roads, and deposit solution-extraction rock. This would result
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16151
in substantial disturbance to between 25% and 100% of the
land surface.

(3) Transition: 875 acres (8%) would be used as “raveling
areas” around overburden and leach rock deposition areas,
access roads, storm water diversion ditches, and administra-
tive facilities. This would result in some disturbance to
between 5% and 25% of the land surface.

(4) Intermittent use: 4,481 acres (41%) would not be sub-
ject to direct mining activity and would be used to consolidate
Asarco’s ownership and to buffer neighboring landowners
from mining operations.

(5) Long-range prospect: 1,733 acres (16%) could be used
for mine development and support in the future resulting in an
unknown degree of surface disturbance.

The offered lands comprise five parcels or groups of par-
cels: the Knisely Ranch Parcels (160 acres), the Gila River
Parcel (320 acres), the Tomlin Parcels (320 acres), the
McCracken Mountain Parcels (6,384 acres), and the Sacra-
mento Valley Parcel (120 acres). Following the land
exchange, no mining claims would exist or be permitted on
the Knisely Ranch Parcels. The BLM would petition to with-
draw the Gila River Parcel and Tomlin Parcels from mineral
entry, which, if successful, would mean that only persons who
had established a valid mining claim before withdrawal would
be permitted to mine on those parcels. Clouser v. Espy, 42
F.3d 1522, 1524-25 (9th Cir. 1994). The McCracken Moun-
tain Parcels, which comprise 87% of the offered lands, and
the Sacramento Valley Parcel would remain open to mineral
entry. Of the 7,300 acres of offered lands, 1,126 acres exhibit
moderate potential for locatable mineral resources, with the
rest exhibiting low potential for locatable mineral resources.

The offered lands include riparian plant communities and
important wildlife habitat, including habitat for some special
16152 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
status species, potential habitat for some threatened or endan-
gered species, including peregrine falcons, and proposed criti-
cal habitat for the cactus ferruginous pygmy owl. The offered
lands include segments of the Gila River Riparian Manage-
ment Area, the Black Mountains (Burro) Herd Management
Area, the Cerbat (Wild Horse) Herd Area, the Big Sandy
(Burro) Herd Management Area, and the McCracken Desert
Tortoise Habitat Area of Critical Environmental Concern.

Between 1995 and 1997, the BLM consulted with various
federal, state, and local agencies, elected representatives, non-
governmental organizations, tribal governments, and private
individuals concerning the land exchange. The BLM pub-
lished a Draft Environmental Impact Statement (“DEIS”) in
October 1998.

In January 1999, after having reviewed the DEIS, the fed-
eral Environmental Protection Agency (“EPA”) sent the BLM
a three-page single-spaced letter accompanied by thirteen
pages of single-spaced comments, vigorously objecting to the
proposed land exchange. The EPA’s letter stated, inter alia:

Over the past several decades, approximately one
billion tons of material have been excavated at the
Asarco Ray complex. The proposed action would
enable Asarco to excavate and process approxi-
mately three billion more tons over the next 40
years. In several meetings, letters, and conference
calls with BLM since scoping for this project began
in 1994, EPA has recommended that the DEIS pro-
vide certain information that we believe would be
useful and relevant in a NEPA analysis for a land
exchange where the foreseeable future uses of min-
ing are known. In our comment letter on the prelimi-
nary DEIS, we stated that the document did not
appear to have evaluated all reasonable alternatives
and strongly recommended that additional informa-
tion regarding the alternatives be included in the
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16153
DEIS. In that letter and several others to the DEIS,
we also recommended that the potential impacts of
the land exchange and the foreseeable future mining
be discussed in much greater detail in the DEIS and
specifically outlined the needed information.

Although BLM has not received an acceptable
mine plan of operations (MPO) from Asarco, it
appears that Asarco has fairly specific plans for the
selected parcels. We believe that additional detailed
information regarding geology, geochemistry,
hydrology, and biological resources is relevant and
necessary for this analysis to constitute full disclo-
sure under NEPA. It is also evident that all reason-
able alternatives have not been evaluated and that
impacts of foreseeable activities on the selected
lands have not been sufficiently addressed in the
DEIS. We are extremely dismayed that the BLM has
ignored most of our recommendations in finalizing
the DEIS and are particularly troubled that the DEIS
was published at a time when our headquarters office
was still discussing the issues with BLM headquar-
ters and the two agencies had not yet come to a reso-
lution.

We have rated this DEIS as EO-2 — Environmen-
tal Objections-Insufficient Information. We have
strong objections to the proposed project because we
believe there is potential for significant environmen-
tal degradation that could be corrected by project
modification or other feasible alternatives. . . . We
continue to contend that a substantial amount of
information should be added to the EIS for BLM to
meet its public disclosure obligation.

(Emphasis added.)

Public hearings were held on the DEIS. The BLM received
sixty-one comment letters or notifications of no comment
16154 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
from interested individuals and groups. After reviewing and
responding to these comments, the BLM issued its Final Envi-
ronmental Impact Statement (“FEIS”) in June 1999. The FEIS
differed from the DEIS in only minor respects.

The FEIS analyzes the environmental, cultural, and socio-
economic impacts of the proposed land exchange favored by
Asarco (“the proposed exchange”); of the “Buckeye Alterna-
tive,” under which the selected lands would decrease to
10,176 acres and the offered lands to 6,659 acres; of the
“Copper Butte Alternative,” under which the selected lands
would decrease to 9,161 acres and the offered lands to 5,601
acres; and of the “No Action Alternative,” under which no
lands would be exchanged. The FEIS identifies, but elects not
to study in depth, seven other alternatives.

The FEIS states that the “foreseeable uses of the selected
lands are mining-related uses and are expected to occur under
all alternatives.” (Emphasis added.) In a section entitled “Ac-
tions Common to All Alternatives,” the FEIS explains:

This section describes actions that are common to all
alternatives; that is, activities that would occur
regardless of which alternative is selected. In devel-
oping alternatives, BLM concluded that foreseeable
mining-related uses would likely occur whether any
one of the land exchange alternatives were selected
or the No Action alternative was selected. This is
because a land exchange is not required for mining-
related activities to take place on the selected lands.
Asarco currently holds the vast majority of the min-
ing claims on the public lands selected for exchange,
and through these mining claims, Asarco has the
right to pursue development on the selected lands for
mining or mining-related uses.

The next paragraph contains a short, neutral description of the
MPO process. The paragraph does not contain any discussion
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16155
of the manner in which the MPO process might alter mining
operations. Then, on the next page, the FEIS states, “As
explained above, foreseeable uses of the selected lands are
assumed to be the same for all alternatives.” (Emphasis
added.)

The BLM repeatedly stated in the FEIS its assumption that
mining was the foreseeable use for the selected lands, and it
repeatedly characterized the environmental impacts of mining
operations, with or without the MPO requirement, as “com-
mon to all alternatives.” See, e.g., FEIS discussions of “Up-
land Plant Communities,” “Riparian Plant Communities,”
“Wildlife/Wildlife Habitats,” “State and BLM Special Status
Species,” “Biodiversity,” “Surface Water,” “Groundwater,”
“Surface Water Rights/Well Permits,” “Air Quality,” “Soils,”
“Access and Recreation.” The BLM’s assumption played a
critical role in the FEIS. The FEIS contains only a single
description of the environmental consequences of mining
because the BLM assumed that they would be the same under
every alternative. That is, because the BLM assumed that
mining operations would be the same, the FEIS contains no
comparative analysis of the environmental consequences of
the land exchange and the no action alternative.

The federal EPA, the federal Bureau of Indian Affairs, and
the Sierra Club objected to the FEIS. The BLM summarized
their objection as follows: “A Mine Plan of Operation is nec-
essary to complete analysis of the land exchange impacts.
BLM’s assumption is wrong that the foreseeable use reflects
mining that would take place whether or not land exchange
occurs.” (Emphasis added.) The ROD did not answer the
objection. Instead, it referred the reader to the FEIS. It stated,
“This issue has been addressed in the FEIS General Response
section 7.4.5 and 7.4.6.” In those sections of the FEIS, the
BLM responded to the first sentence of the objection, stating
that MPOs are not required for mining that is anticipated after
the selected lands become privately owned. However, the
BLM did not respond to the second sentence (italicized
16156 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
above), which objected to the BLM’s “assumption” that the
same mining would occur with or without an MPO require-
ment.

In April 2000, the BLM issued a Record of Decision
(“ROD”) in which it did two things. First, the BLM amended
two existing Resource Management Plans (“RMPs”) to
change the designation of the selected lands under FLPMA.
It amended the 1988 “Phoenix RMP” to change the designa-
tion of 9,906 acres in the White Canyon Resource Conserva-
tion Area from “retention” to “disposal.” And it amended the
1993 “Safford District RMP” to change the designation of
433 acres in the Long-Term Management Area from “reten-
tion” to “disposal.” These changes in the Phoenix and Safford
District RMPs were prerequisites to the conveyance of the
selected lands from public ownership. As a consequence of
these changes, the BLM would no longer be required to man-
age the selected lands as multiple-use lands under FLPMA.

Second, the BLM approved the proposed land exchange.
Section 206 of FLPMA forbids land exchanges unless the
“public interest will be well served.” 43 U.S.C. § 1716(a).
This section directs the Secretary of Interior to “give full con-
sideration” to better land management and “needs for lands
for the economy, . . . food, fiber, minerals, and fish and wild-
life” when determining the public interest. Id. In part, the
ROD justified the exchange by denying that any harm to the
public would result from conveying the selected lands to pri-
vate ownership. The ROD concluded that the public interest
would not be harmed by the conveyance because it assumed,
as the FEIS had assumed, that mining would be conducted in
the same manner whether or not the exchange occurred. The
ROD stated that “the BLM considers the continuation of min-
ing as the foreseeable use of most of the selected federal lands
whether the exchange occurs or not.”

In July 2001, Appellants filed an administrative appeal and
a request to stay the land exchange with the Interior Board of
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16157
Land Appeals (“IBLA”). When the IBLA failed to act on the
Appellants’ request within forty-five days as mandated by 43
C.F.R. § 4.21(b)(4), Appellants filed suit in federal district
court. The IBLA then stayed the land exchange pending its
disposition of the appeal, and the district court suspended its
proceedings pending a decision from the IBLA.

In August 2004, the IBLA denied the Appellants’ appeal.
Ctr. for Biological Diversity, et al., 162 I.B.L.A. 268 (2004).
One Administrative Judge wrote separately, concurring in the
result. For her, the difficult issue was whether the BLM had
complied with NEPA. She wrote:

I am perturbed by BLM’s assertion that foreseeable
consequences of this exchange are not possible to
predict or are speculative. It appears that the record
contains considerable information indicating where
within the selected lands mineral resources are
located and where they are not. It is this information
that forms the basis for the classification of foresee-
able uses (“existing,” “production,” “transition,” “in-
termittent use,” and “long-range prospect”)
identified for the selected lands in the FEIS. Further,
BLM changed its land use designations for the vast
majority of the selected lands in the Phoenix and
Safford Resource Management Plans from “resource
conservation area” and “long term management
area” to “suitable for disposal” in the context of
implementing this exchange decision. . . . Combining
these two points of information — the knowable
classifications within the context of mining of the
selected lands with the change in land designation —
made foreseeable impacts more easily presentable in
a manner not easily found in this EIS and less specu-
lative than BLM suggests.

Id. at 291 (Hemmer, Admin. J., concurring) (emphasis added)
(internal citations omitted).
16158 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
On June 6, 2007, the district court granted summary judg-
ment to Appellees. Appellants timely appealed to this court.

II. Standard of Review

We review the district court’s grant of summary judgment
de novo. United States v. Tacoma, 332 F.3d 574, 578 (9th Cir.
2003). Under NEPA, “we must ensure that the agency has
taken a ‘hard look’ at the environmental consequences of its
proposed action. . . . [W]e must defer to an agency’s decision
that is ‘fully informed and well-considered.’ However, we
need not forgive a ‘clear error of judgment.’ ” Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th
Cir. 1998) (internal citations omitted). We review the BLM’s
compliance with NEPA under the deferential “arbitrary and
capricious” standard of the Administrative Procedure Act. 5
U.S.C. § 706(2)(A); see The Lands Council v. McNair, 537
F.3d 981, 987 (9th Cir. 2008) (en banc). We also review the
BLM’s compliance with FLPMA under the deferential “arbi-
trary and capricious” standard. See Webb v. Lujan, 960 F.2d
89, 91 (9th Cir. 1992).

III. Discussion

For the reasons that follow, we hold that the BLM’s
assumption that mining would occur on the selected lands in
the same manner regardless of the land exchange was arbi-
trary and capricious, and that the BLM therefore violated
NEPA. We further hold that the BLM’s reliance on this
assumption in the ROD to conclude that the proposed land
exchange is in the “public interest” was arbitrary and capri-
cious, and that the BLM therefore violated FLPMA.

A. NEPA

In NEPA, Congress recognized the “profound impact” of
human activities, including “resource exploitation,” on the
environment and declared a national policy “to create and
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16159
maintain conditions under which man and nature can exist in
productive harmony.” 42 U.S.C. § 4331(a). To further this
policy, NEPA “establishes ‘action-forcing’ procedures that
require agencies to take a ‘hard look’ at environmental conse-
quences.” Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.
2000) (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 348 (1989)). Chief among these procedures is
the preparation of an environmental impact statement (“EIS”).

[1] NEPA requires preparation of an EIS for “major Fed-
eral actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). Every EIS must “pro-
vide [a] full and fair discussion of significant environmental
impacts” of the proposed agency action. 40 C.F.R. § 1502.1.
An EIS serves two purposes:

First, [i]t ensures that the agency, in reaching its
decision, will have available, and will carefully con-
sider, detailed information concerning significant
environmental impacts. Second, it guarantees that
the relevant information will be made available to
the larger audience that may also play a role in both
the decisionmaking process and the implementation
of that decision.

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)
(internal quotation marks and citations omitted).

[2] In addition to the proposed agency action, every EIS
must “[r]igorously explore and objectively evaluate all rea-
sonable alternatives” to that action. 40 C.F.R. § 1502.14(a).
The analysis of alternatives to the proposed action is “ ‘the
heart of the environmental impact statement.’ ” Or. Natural
Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1121
(9th Cir. 2008) (quoting 40 C.F.R. § 1502.14). “The existence
of reasonable but unexamined alternatives renders an EIS
inadequate.” Friends of Southeast’s Future v. Morrison, 153
F.3d 1059, 1065 (9th Cir. 1998).
16160 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
The FEIS prepared by the BLM examined the proposed
land exchange and three alternatives: the Buckeye Alterna-
tive, the Copper Butte Alternative, and the No Action Alter-
native. Under the No Action Alternative, the exchange would
not proceed, and the selected lands would remain in public
hands. A no action alternative in an EIS allows policymakers
and the public to compare the environmental consequences of
the status quo to the consequences of the proposed action. The
no action alternative is meant to “provide a baseline against
which the action alternative[ ]” — in this case, the land
exchange — is evaluated. Id. A no action alternative must be
considered in every EIS. See 40 C.F.R. § 1502.14(d).

The BLM’s assumption in the FEIS that the environmental
consequences of the land exchange alternative and the no
action alternative would be the same was arbitrary and capri-
cious. The BLM based its assumption that mining would
occur in the same manner on the fact that Asarco already
holds mining claims on the selected lands. However, if the
proposed land exchange does not occur, the selected lands
would remain in public hands. In that event, Asarco’s ability
to conduct mining operations on its claims would be subject
to the Mining Law of 1872. In contrast, if the proposed land
exchange occurs, Asarco would own the selected lands in fee
simple. In that event, Asarco’s use of the land would not be
subject to the requirements of the Mining Law. The BLM thus
assumed that the Mining Law would have no impact on the
manner in which Asarco will conduct mining if the selected
lands remained public lands. A description of the operation of
the Mining Law of 1872 shows why this assumption is arbi-
trary and capricious.

Asarco has a right to engage in mining on the selected
lands under the Mining Law even if the exchange does not
proceed, based on its 747 unpatented mining and mill site
claims. See, e.g., 30 U.S.C. § 612(a) (holders of unpatented
mining claims can engage in “prospecting, mining or process-
ing operations and uses reasonably incident thereto”); United
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16161
States v. Shumway, 199 F.3d 1093, 1105 (9th Cir. 1999)
(“The owner of a mining or mill site claim does not need a
patent, or a vested right to issuance of a patent, to possess and
use the property.”). But the manner and extent of that mining
is likely to differ depending on whether the selected lands are
owned by the United States as public lands or by Asarco as
private lands in fee simple.

1. The MPO Requirement

If the land exchange does not occur and the selected lands
remain public, Asarco will be obliged to comply with the
requirements of the Mining Law. Under that law, Asarco
would have to submit Mining Plans of Operations (“MPOs”)
to the BLM before engaging in mining operations on its
claims if those operations are greater than a “casual use” that
would disturb more than five acres of land. See 43 C.F.R.
§§ 3809.11, 3809.21. “Casual use means activities ordinarily
resulting in no or negligible disturbance of the public lands or
resources,” such as collection of mineral specimens using
hand tools. Id. § 3809.5. It is clear from the FEIS that Asarco
intends to engage in mining operations on the selected lands
that would be greater than casual use, and that one or more
MPOs would be required.

Each MPO would have to provide a significant amount of
information on Asarco’s mining plans, including “maps . . .
showing the location of exploration activities, drill sites, min-
ing activities, processing facilities, waste rock and tailing dis-
posal areas, support facilities, structures, buildings, and access
routes”; “[p]reliminary or conceptual designs, cross sections,
and operating plans for mining areas, processing facilities,
and waste rock and tailing disposal facilities”; “[w]ater man-
agement plans”; “[r]ock characterization and handling plans”;
“[q]uality assurance plans”; “[s]pill contingency plans”;
“[p]lans for all access roads, water supply pipelines, and
power or utility services”; reclamation plans that address
“[d]rill-hole plugging,” “[r]egrading and reshaping,” “[m]ine
16162 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
reclamation,” “[r]iparian mitigation,” “[w]ildlife habitat reha-
bilitation,” “[t]opsoil handling,” “[i]solation and control of
acid-forming, toxic, or deleterious materials,” “[r]emoval or
stabilization of buildings, structures and support facilities,”
and “[p]ost-closure management”; a detailed monitoring plan
to ensure compliance with environmental laws and regula-
tions; a “[r]eclamation cost estimate”; and “[o]perational and
baseline environmental information,” such as information on
“geology, paleontological resources, cave resources, hydrol-
ogy, soils, vegetation, wildlife, air quality, cultural resources,
and socioeconomic conditions in and around the project area,”
as the BLM may request. See id. § 3809.401. The BLM may
require information beyond that submitted with an initial
MPO. “[I]nsofar as BLM has determined that it lacks ade-
quate information on any relevant aspect of a plan of opera-
tions, BLM not only has the authority to require the filing of
supplemental information, it has the obligation to do so.”
Great Basin Mine Watch, 146 I.B.L.A. 248, 256 (1998).

Further, depending on the circumstances, the MPO process
requires BLM to consult with other agencies. For example,
the selected lands include dozens of archaeological sites,
many of which, according to the FEIS, would be destroyed or
severely disturbed by mining operations. Consequently, the
BLM may have to perform the consultation required under the
National Historical Preservation Act. See 43 C.F.R.
§ 3809.411(a)(3)(iii). Similarly, the BLM may have to per-
form the consultation required under the Endangered Species
Act and/or the Magnuson-Stevens Fishery Conservation and
Management Act. See id. The BLM may also have to consult
with Native American tribes. See id. § 3809.411(a)(3)(iv). It
may also have to consult with the State of Arizona to ensure
that Asarco — which in the past has violated the federal
Clean Water Act at the Ray Mine Complex — complies with
State water quality requirements. See id. § 3809.411(a)(3)(ix).

Still further, the MPO process requires the BLM to comply
with NEPA. See id. § 3809.411(a)(3)(ii). NEPA requires the
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16163
preparation of an EIS before approving an MPO if the
approval would constitute a “major Federal action[ ] signifi-
cantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C). Based on the uses that Asarco and the
BLM foresee for the selected lands, as detailed in the FEIS,
it is virtually certain that BLM approval of an MPO for the
selected lands would constitute a “major federal action.” Each
EIS would have to provide detailed information on the envi-
ronmental impacts of Asarco’s planned mining as outlined in
the MPO.

[3] Finally, the BLM cannot approve an MPO unless it
complies with FLPMA. Under FLPMA, the Secretary of Inte-
rior is required to “take any action necessary to prevent
unnecessary or undue degradation of the [public] lands.” 43
U.S.C. § 1732(b). BLM regulations define “unnecessary or
undue degradation” (“UUD”) to mean “conditions, activities,
or practices” that fail to comply with the “performance stan-
dards in [43 C.F.R.] § 3809.420,” that fail to comply with
“other Federal and state laws related to environmental protec-
tion and protection of cultural resources,” that are “not ‘rea-
sonably incident’ to prospecting, mining, or processing
operations” as defined in 43 C.F.R. § 3715.0-5, or that “[f]ail
to attain a stated level of protection or reclamation required by
specific laws” in special status areas. 43 C.F.R. § 3809.5.
FLPMA and its implementing regulations require the Secre-
tary to “take any action necessary” to prevent UUD.

FLPMA’s requirement that the Secretary prevent UUD
supplements requirements imposed by other federal laws and
by state law. See id. § 3809.415 (“You prevent unnecessary or
undue degradation while conducting operations on public
lands by . . . [c]omplying with § 3809.420, as applicable; the
terms and conditions of your notice or approved plan of oper-
ations; and other Federal and State laws related to environ-
mental protection and protection of cultural resources.”)
(emphasis added). Prevention of UUD includes designing
access routes that minimize adverse environmental impacts,
16164 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
§ 3809.420(b)(1); disposing appropriately of “tailings, dumps,
deleterious materials or substances, and other waste,”
§ 3809.420(b)(2); reclaiming disturbed areas,
§ 3809.420(b)(3); protecting fisheries, wildlife and plant habi-
tat, § 3809.420 (b)(7); and performing appropriate leaching
operations and impoundments, § 3809.420(b)(12). UUD
requirements are distinct from requirements under NEPA. “A
finding that there will not be significant impact [under NEPA]
does not mean either that the project has been reviewed for
unnecessary and undue degradation or that unnecessary or
undue degradation will not occur.” Kendall’s Concerned Area
Residents, 129 I.B.L.A. 130, 140 (1994).

In Mineral Policy Center v. Norton, 292 F. Supp. 2d 30
(D.D.C. 2003), plaintiffs challenged newly promulgated regu-
lations, including § 3809.420, implementing the UUD man-
date of FLPMA. Plaintiffs’ central contention was that the
new regulations were too weak to satisfy the statutory man-
date of preventing UUD. The Department of the Interior
(“Interior”) responded by arguing that the regulations would
satisfy the mandate, in significant part because of the environ-
mental protection provided by the MPO process. The district
court wrote, “Interior argues that it will protect the public
lands from any UUD by exercising case-by-case discretion to
protect the environment through the process of: (1) approving
or rejecting individual mining plans of operation . . . .” Id. at
44. The BLM is, of course, part of Interior. It ill becomes
Interior and the BLM to take the position in this litigation that
the MPO process would not alter the manner of mining, and
its environmental consequences, when Interior took precisely
the opposite position in Mineral Policy Center.

2. Comparative Analysis

[4] It is black letter law that NEPA requires a comparative
analysis of the environmental consequences of the alternatives
before the agency. In the case before us, that analysis would
compare the environmental consequences of the no-action
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16165
alternative, in which Asarco would own mining claims on
public land, and the proposed land exchange alternative, in
which Asarco would own the land in fee simple. Under the
first alternative, Asarco would have to prepare and receive
approval for MPOs in accordance with the Mining Law.
Under the second alternative, no MPOs would be required.

In its 1999 letter to the BLM, the EPA objected strenuously
to the draft EIS. The EPA noted that “it appears that Asarco
has fairly specific plans for the selected parcels,” and the EPA
“continue[d] to contend that a substantial amount of informa-
tion should be added to the EIS for the BLM to meet its pub-
lic disclosure obligation.” In her 2004 separate concurrence in
the IBLA’s decision, Administrative Judge Hammer noted
that she was “perturbed by BLM’s assertion that foreseeable
consequences of this exchange are not possible to predict or
are speculative.” She wrote that the information available to
the BLM “made foreseeable impacts more easily presentable
in a manner not easily found in this EIS and less speculative
than BLM suggests.” As described above, the FEIS itself con-
tains detailed information about the mining activities that
Asarco intends to conduct on the selected lands, as well as the
acreage to be devoted to such activities. It is thus plain from
the record that both Asarco and the BLM have a fairly
detailed knowledge of what Asarco intends to do if the pro-
posed exchange is approved.

[5] In the circumstances of the case before us, where it is
obvious, as detailed in the record, that Asarco and the BLM
know a great deal about Asarco’s mining plans for the
selected lands, NEPA requires a meaningful analysis of the
different environmental consequences that would result from
public ownership (with an MPO requirement) and private
ownership (without an MPO requirement). This does not
mean that the BLM must require, in connection with the prep-
aration of the FEIS, that Asarco file full-fledged MPOs for the
mining it will conduct on the selected lands. But it does mean
that, based on the information now reasonably available, the
16166 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
BLM must make a meaningful comparison of the environ-
mental consequences of Asarco’s likely mining operations
with and without the requirement that MPOs be prepared by
Asarco and approved by the BLM — that is, with and without
the proposed exchange. In the absence of such a comparison
in the FEIS, the BLM has not conducted the “hard look” that
NEPA requires. Rather, the BLM has averted its eyes from
what is in plain view before it.

[6] We therefore conclude that the BLM acted arbitrarily
and capriciously, and violated NEPA, by failing to take a
“hard look” at the likely environmental consequences of the
land exchange.

B. FLPMA

In FLPMA, Congress declared that it is the policy of the
United States to manage the public lands “in a manner that
will protect the quality of scientific, scenic, historical, ecolog-
ical, environmental, air and atmospheric, water resource, and
archeological values.” 43 U.S.C. § 1701(a)(8). Congress also
declared it a national policy to manage the public lands “in a
manner which recognizes the Nation’s need for domestic
sources of minerals, food, timber, and fiber from the public
lands.” Id. § 1701(a)(12). The BLM and the Secretary of the
Interior are responsible for administering FLPMA and satisfy-
ing this multiple use mandate.

[7] FLPMA forbids land exchanges unless the “public
interest will be well served by making that exchange.” Id.
§ 1716(a). FLPMA directs the Secretary of the Interior, in
considering the public interest, to “give full consideration to
better Federal land management and the needs of State and
local people, including needs for lands for the economy, com-
munity expansion, recreation areas, food, fiber, minerals, and
fish and wildlife.” Id. The Secretary must also “find[ ] that the
values and the objectives which Federal lands or interests to
be conveyed may serve if retained in Federal ownership are
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16167
not more than the values of the non-Federal lands or interests
and the public objectives they could serve if acquired.” Id.

In approving the land exchange, the ROD emphasized what
the BLM saw as the advantages of acquiring the offered land.
Those advantages include: (1) facilitating better federal land
management by acquiring private lands within special areas of
designation that exhibit a “checker board” land ownership
pattern; (2) improving wildlife and Area of Critical Environ-
mental Concern habitats by adding parcels to federal protec-
tion and management; (3) supporting resource objectives for
improving riparian zones by acquiring parcels along the Big
Sandy and Gila Rivers; (4) continuing to support mining
activities by providing lands that will enable Asarco to plan
expansions, comply with environmental permits, buffer opera-
tions from surrounding lands, and continue operating on par-
cels with approved mining plans of operations; and (5)
improving management of mineral rights.

[8] The ROD listed no disadvantages of conveying the
selected lands into Asarco’s private ownership. The ROD
stated, “An additional rationale for approving the land
exchange is that the BLM considers the continuation of min-
ing as the foreseeable use of most of the selected federal lands
whether the exchange occurs or not.” In other words, the
ROD, like the FEIS, assumed that mining would occur on the
selected lands in the same manner whether or not the
exchange took place. For the reasons discussed above, this
assumption is unreasonable. The manner in which Asarco
engages in mining on the selected lands is likely to differ
depending on whether the land exchange occurs, and the envi-
ronmental consequences will differ accordingly.

[9] Because the ROD unreasonably assumed that mining
would occur in the same manner, its analysis of the public
interest under FLPMA is fatally flawed. Without an accurate
picture of the environmental consequences of the land
exchange, the BLM cannot determine if the “public interest
16168 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
will be well served by making the exchange,” and the Secre-
tary cannot determine if the “values and the objectives” which
the selected lands “may serve if retained in Federal ownership
are not more than the values” of the offered lands. We there-
fore hold that the conclusion in the ROD that the proposed
land exchange is in the “public interest” within the meaning
of FLPMA was arbitrary and capricious.

C. Resource Management Plans

In addition to approving the land exchange, the ROD
approved changes to two Resource Management Plans
(“RMPs”). First, it amended the Phoenix RMP by changing
the designation of 9,906 acres of selected lands in the White
Canyon Resource Conservation Area from “retention” to “dis-
posal.” Second, it amended the Safford District RMP by
changing the designation of 433 acres of selected lands in the
Long-Term Management Area from “retention” to “disposal.”
These changes were necessary in order to allow the convey-
ance of most of the selected lands into private hands.

Amending a resource management plan ordinarily consti-
tutes “major federal action” requiring NEPA analysis. See
Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549,
560-62 (9th Cir. 2006). The BLM accordingly treated the plan
amendments as major federal actions and analyzed them in
the FEIS. As part of the no action alternative, the FEIS
assumed that neither the land exchange nor the proposed
amendments to the RMPs would take place.

[10] For the same reasons that the analysis in the FEIS of
the land exchange is inadequate under NEPA, so too is the
analysis of the proposed RMP amendments. By assuming that
mining would occur in the same manner and to the same
extent on the selected lands regardless of whether the
exchange occurred, the BLM assumed either that the RMPs
would be amended even if the exchange did not occur, or that
even if the RMPs were not amended the existing RMPs would
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16169
not affect Asarco’s mining plans. There is nothing in the
record supporting the first assumption that the RMPs would
be amended absent the exchange, especially given that the
BLM acknowledges that the amendments were prerequisites
to the land exchange. And the second assumption — that the
unamended RMPs would have no effect on mining — suffers
from the same flaws discussed above. Just as the BLM must
consider the constraints imposed by the MPO requirement for
the no action alternative to the land exchange, so too must it
consider the constraints the RMPs would impose if the
amendments did not occur. We note that 94% of the selected
lands are currently subject to RMPs.

The Appellants did not directly challenge the RMP amend-
ments in their appeal to us. However, we note the incongruity
of holding that the analysis in the FEIS of the no action alter-
native violates NEPA with respect to the land exchange but
not with respect to the RMP amendments if the same errone-
ous assumption infects them both. We leave it to the district
court to address this issue, as appropriate, on remand.

D. Mining Law of 1872

We do not reach the question whether the Mining Law of
1872 would be violated if the land exchange were to be effec-
tuated on the current record.

E. Lands Council

The dissent argues that our decision in this case is inconsis-
tent with our recent en banc decision in The Lands Council v.
McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). We disagree.

We wrote in Lands Council that “our proper role is simply
to ensure that the [agency] made no ‘clear error of judgment’
that would render its action ‘arbitrary and capricious.’ ” Id. at
993. In Lands Council, we insisted that agencies support and
16170 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
explain their conclusions with evidence and reasoned analy-
sis. Id. at 994, 998.

Lands Council involved a challenge to a logging project
proposed by the Forest Service. There were three NEPA
issues. First, plaintiff Lands Council argued that the Forest
Service had “fail[ed] to include a full discussion of the scien-
tific uncertainty surrounding its strategy for maintaining spe-
cies viability.” Lands Council, 537 F.3d at 1002 (internal
quotation omitted). Second, Lands Council argued that the
Forest Service “did not cite adequate evidence that the Project
will improve the habitat of old-growth species.” Id. Third,
Lands Council argued that the Forest Service “did not ade-
quately examine adverse impacts from logging within old-
growth stands.” Id. We concluded that these three arguments
failed and that the Forest Service had taken “the requisite
‘hard look’ at the environmental impacts of the Project.” Id.
at 1003.

The NEPA issue in the case now before us is quite different
from the NEPA issues in Lands Council. Instead of alleged
failures to discuss scientific uncertainty, to cite adequate evi-
dence, or to examine adverse impacts, as in Lands Council,
the issue in our case is a failure to make a meaningful com-
parison among alternatives before the agency. It is black-letter
law under NEPA that such a comparison is required. See 40
C.F.R. § 1502.14 (As the “heart of the environmental impact
statement,” the EIS “should present the environmental
impacts of the proposal and the alternatives in comparative
form, thus sharply defining the issues and providing a clear
basis for choice among the options by the decisionmaker and
the public.”). We so indicated in Lands Council: “The EIS
must include statements on: . . . alternatives to the proposed
action.” Lands Council, 537 F.3d at 1001. We concluded in
Lands Council that an adequate comparative analysis had
been conducted. Id. at 1003.

There is nothing in the record supporting the BLM’s
assumption that the MPO process would make no difference
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16171
in the manner in which Asarco would perform mining opera-
tions on the selected lands. Instead, there is much in the
record indicating precisely the opposite. We will not repeat
here everything we have written above, but we note a few
things.

We note that an “extremely dismayed” EPA objected to the
draft EIS, complaining, “It is also evident that all reasonable
alternatives have not been evaluated and that impacts of fore-
seeable activities on the selected lands have not been suffi-
ciently addressed in the DEIS.” The FEIS was not changed in
response to this objection.

Further, we note that the EPA objected to the FEIS, writing
that there was no support for the assumption that Asarco
would mine in the same fashion whether or not it was
required to prepare MPOs. The BLM failed to respond to this
objection.

Still further, we note that in her concurring opinion for the
IBLA, Administrative Judge Hammer pointed out that the
record contains detailed information about the nature of Asar-
co’s planned mining operations that “made foreseeable
impacts more easily presentable in a manner not easily found
in this EIS and less speculative than BLM suggests.”

Finally, we note that the Department of Interior, of which
the BLM is a part, successfully argued in Mineral Policy Cen-
ter that MPOs provide meaningful environmental protection
beyond that provided by other laws. In light of Interior’s suc-
cessful argument in Mineral Policy Center, we can hardly be
expected to take at face value Interior’s and the BLM’s con-
trary argument, in the case now before us, that the MPO pro-
cess provides no such environmental protection.

Our dissenting colleague makes a number of general state-
ments. He says that we have “disingenuously” removed mate-
rial from our prior opinion, Dissent at 16175; that we are
16172 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
“attempting to mask [our] creation of a new substantive rule,”
id. at 16178; that we are “attempting to judicially legislate,”
id.; that we provide “selective and somewhat misleading pre-
sentation of the facts,” id. at 16181 n.4; that our opinion
“solely focuses on an isolated phrase from the record, taken
entirely out of context,” id. at 16186; that our “rumination is
unaccompanied by any factual basis from the administrative
record,” id. at 16188; that we impose a “novel NEPA require-
ment steeped in mystery,” id. at 16192; that we make a “false
statement that the BLM failed to make a meaningful compari-
son,” id. at 16192; that we “attempt to regulate agency action
by judicial fiat,” id. at 16193; that we “grossly overstep our
role,” id. at 16194; and that we “have sacrificed the integrity
of our precedent and the best interests of the public,” id. at
16200.

But our colleague has no response to the fact that an “ex-
tremely dismayed” EPA objected that the BLM did not per-
form an adequate environmental analysis in the draft EIS. His
only response to the fact that the BLM did not reply to the
EPA’s statement that the FEIS was wrong in assuming that
Asarco would mine in the same way, whether or not it pre-
pared MPOs, is to quote language replying to another objec-
tion. His only response to the fact that Administrative Judge
Hammer wrote a concurrence stating that the BLM possessed
sufficiently detailed information to provide a more thorough
environmental analysis is to point out that she was writing a
concurrence. Id. at 16198-99 n.9. His only response to the fact
that the position taken by Interior and the BLM in this litiga-
tion is flatly inconsistent with the position taken by Interior
in Mineral Policy Center is to deny the existence of the incon-
sistency. Id. at 16188 n.6.

Our colleague states that the BLM found that the environ-
mental consequences of the proposed exchange would be
“similar” to those of the no-action alternative. He writes,
“[T]he BLM reached the logical conclusion that, to the extent
foreseeable, the environmental impacts would be in many
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16173
ways similar under the various alternatives.” Id. at 16187
(emphasis added). He writes, further, “[The BLM’s] expertise
led it to believe that the environmental consequences would
be similar whether Asarco mined on public or private land.”
Id. at 16188 n.6 (emphasis added). See also id. at 16188-89
(“ultimate mining-related activities would be substantially
similar”); id. at 16188 n.6 (“the BLM’s position here — that
environmental impacts would be similar under the various
alternatives”; id. (“The BLM’s conclusion that Asarco’s
mining-related activities would be similar”) (emphases
added). Our colleague errs in so stating. The core problem in
this case is that the BLM assumed that the environmental
impacts of the proposed exchange and of the no action alter-
native would be “the same.”

Our colleague writes that our opinion is “based on a dis-
taste for the particular industrial goals at issue.” Dissent at
16190. This is not true. We express no view — indeed, we
have no view — on the question whether the proposed land
exchange is a good or bad idea. That question is not properly
before us. But our colleague has a very definite view. In his
view, the land exchange is “beneficial.” Dissent at 16176. In
his view, the “offered lands . . . are undisputably superior in
almost all respects (except for mineral deposits) to the
selected lands.” Id. at 16201. In his view, our approach in not
only “legally untenable.” Id. at 16201. It is also “impractical,
misguided, and contrary to the best interests and welfare of
the public at large.” Id.

We confine ourselves to the legal questions before us. We
continue to adhere to the standard of deference to agency
action we articulated in Lands Council. But we are not com-
pelled to defer — indeed, we are compelled not to defer —
when an agency has acted arbitrarily and capriciously. In this
case, we conclude that the BLM acted arbitrarily and capri-
ciously in assuming without explanation that the MPO pro-
cess is a meaningless formality that provides no
environmental protection and, based on that assumption, in
16174 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
failing to make a meaningful comparison between the pro-
posed land exchange and the no action alternative.

Conclusion

We conclude that the BLM acted arbitrarily and capri-
ciously, in violation of NEPA and FLPMA, in assuming with-
out explanation that Asarco would perform mining operations
on the selected lands in the same manner regardless of the
land exchange. In failing to perform a comparative analysis of
the likely environmental consequences of the proposed land
exchange, on the one hand, and the no action alternative, on
the other, the BLM failed to take a “hard look” at the environ-
mental consequences of the exchange in violation of NEPA.
We hold further that the conclusion in the ROD that the pro-
posed land exchange is in the “public interest” within the
meaning of FLPMA was arbitrary and capricious because it
was based on the BLM’s flawed assumption.

We therefore REVERSE the decision of the district court
approving the action of the BLM. We REMAND for further
proceedings consistent with this opinion.

TALLMAN, Circuit Judge, dissenting:

It has been said that the life of a canary in a coal mine can
be described in three words: short but meaningful. So, too,
apparently was the life of our decision in Lands Council v.
McNair, 537 F.3d 981 (9th Cir. 2008) (en banc).

With respect to my distinguished colleagues, the holding
today undermines a congressionally authorized land exchange
that, until now, has been approved at every stage of its fifteen-
year history. The court’s opinion is based on a fundamentally
flawed reading of selective portions of a comprehensive
record. The opinion then culminates in a novel and unwork-
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16175
able legal standard that not only effectively precludes these
beneficial land exchanges between the federal government
and private or public landowners, but also impairs the Bureau
of Land Management’s (“BLM”) ability to effectively man-
age the public lands in a manner that furthers the public inter-
est. Finally, the opinion gives no credence to the ability of the
State of Arizona to manage lands under its regulatory jurisdic-
tion, nor consideration to the substantial federal and state
environmental, mining, and land use laws that will nonethe-
less be applicable whether or not the land exchange is
approved.

In Lands Council, our en banc court confirmed the proper
level of deference owed to agency determinations made
within the agency’s area of expertise. Nevertheless, my col-
leagues disregard that precedent and once again endeavor to
impermissibly expand the scope of judicial oversight and
scrutiny of agency action. Today’s opinion is irreconcilable
with Lands Council, which sought to rein in this type of judi-
cial second-guessing in highly specialized areas.

I

Though my colleagues, in their new amended opinion, dis-
claim any effort to determine how the Mining Law of 1872
(the “Mining Law”), 30 U.S.C. § 21 et seq., might apply
should the land transfer proceed, this case turns on the unique
history of nearly 140 years of federal encouragement of min-
ing on public lands. That seminal statute cannot be disre-
garded in deciding whether the agency decision can withstand
judicial scrutiny. Congressional intent to benefit the country
and insure its economic prosperity are completely ignored by
the majority in its attempt to inject its views on how these
lands should be administered. The revised opinion disingenu-
ously removes the old opinion’s “super-Mining Plan of Oper-
ations” (“MPO”)1 requirement, see Ctr. for Biological
1
Before engaging in mining operations beyond casual use on public
land, a claim holder must submit an MPO for consideration and approval
16176 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Diversity v. U.S. Dep’t of the Interior, 581 F.3d 1063, 1074
(9th Cir. 2009), and now simply declares that the BLM’s
comparison between the land exchange and no-action alterna-
tives was insufficient. But this requirement for some unde-
fined additional comparison is just the previous judicially
declared quasi-MPO requirement in disguise.

The underlying environmental challenge in this case seeks
to overturn the approval of a mutually beneficial land
exchange involving federal and non-federal parcels in south-
ern Arizona (the “Land Exchange”) between the BLM, an
agency within the U.S. Department of the Interior, and Asarco
LLC (“Asarco”), a private mining company that already pos-
sesses significant mining rights on the public land to be
traded. The Mining Law establishes Asarco’s existing mining
rights to the selected lands whether owned in fee simple or not.2
The Federal Land Policy and Management Act (“FLPMA”),
43 U.S.C. § 1701 et seq., governs the management of federal
lands and sets congressional policy authorizing the agency to
enter into land exchanges with public or private landowners.
The National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., is a procedural mechanism for assessing their
environmental impact, which the BLM must consider in
determining whether to approve a land exchange under
FLPMA.

by the BLM. 43 C.F.R. § 3809.11. An MPO sets forth detailed explana-
tions of the scope and impact of mining activities that will exceed a certain
size. See Amend. Maj. Op. at 16161-62 (quoting 43 C.F.R. § 3809.401
extensively).
2
As in the majority opinion, “selected lands” refers to the 10,976 acres
of public land at issue, and “offered lands” refers to the 7,300 acres of pri-
vate land currently owned by Asarco subject to the Land Exchange. The
offered lands are comprised of eighteen parcels located in Pinal and
Mohave Counties and include: (1) the Gila River Parcel at Cochran, (2)
the Sacramento Valley Parcel, (3) the Knisely Ranch parcel group, (4) the
Tomlin parcel group, and (5) the McCracken Mountains parcel group.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16177
By beginning its analysis and focusing almost exclusively
on NEPA, then working backward to discuss FLPMA only
tangentially, while omitting the Mining Law entirely, the
court’s opinion inverts the legal analysis, reaches the wrong
result, and, in doing so, creates bad law. With a single excep-
tion, the majority does not contest the thoroughness of the
Environmental Impact Study (“EIS” or “FEIS”) prepared in
accordance with NEPA or the sound reasoning of the BLM’s
Record of Decision (“ROD”) approving the Land Exchange.
In my colleagues’ minds, however, that single exception
forms the linchpin of the NEPA and FLPMA analyses, and is
alone sufficient to undermine a complicated agency decision
and to grant the request by Appellants Center for Biological
Diversity, Western Land Exchange Project, and Sierra Club
(collectively, “CBD”) to block the exchange.

The court’s opinion makes a series of fundamental mis-
steps. First, the majority appears to believe that “Asarco has
spent sixteen years, and considerable amounts of time and
money, seeking to achieve private ownership of the
exchanged land” merely so that it can “avoid having to pre-
pare the MPOs that are required so long as the land remains
in public hands.” Amend. Maj. Op. at 16148. That unfounded
assumption totally misapprehends why both private and gov-
ernment landowners engage in congressionally authorized
land exchanges. It also misapprehends our role as judges,
which is to examine a government agency’s decision to deter-
mine whether it is arbitrary and capricious, not to prognosti-
cate on suspected ulterior motives of non-governmental
participants in federal land exchanges.

Second, the opinion adopts a misguided view of the record
—one pressed by CBD’s briefing—that, for the purposes of
considering the environmental impacts of the Land Exchange,
the BLM blindly assumed that the type, scope, and intensity
of Asarco’s mining and mining-related activities on the
selected lands would be exactly the same whether or not the
Land Exchange occurred. Id. at 16154-55. The majority then
16178 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
concludes—an apparent finding of fact for the first time on
appeal—that “both Asarco and the BLM have a fairly detailed
knowledge of what Asarco intends to do if the proposed
exchange is approved,” but the BLM has wrongfully chosen
not to require an MPO incorporating that knowledge into its
analysis of the Land Exchange. Id. at 16165.

Building upon the shaky foundation of these two highly
questionable appellate assumptions, the majority, without
identifying supporting authority, construes NEPA beyond its
proper bounds to erect a procedural hurdle henceforth applica-
ble to the land exchange approval process: Whenever a land-
owner proposes an exchange for public land on which it
already holds mining rights, NEPA requires that the land-
owner effectively exercise those mining rights by engaging in
some type of not quite “full-fledged” MPO environmental
consequence comparison process. Id. at 16165-66.

The court does not specify exactly what would need to be
done to meet the requirements of NEPA under these circum-
stances. It insists that there is no need for Asarco to “file full-
fledged MPOs for the mining it will conduct on the selected
lands,” but states that the BLM must compare “the environ-
mental consequences of Asarco’s likely mining operations
with and without the requirement that MPOs be prepared by
Asarco and approved by the BLM.” Id. But that is exactly
what the BLM already did in this case. By amending its origi-
nal opinion to remove the express requirement that Asarco
file an MPO before the BLM may approve the sale, the major-
ity is simply attempting to mask its creation of a new substan-
tive rule. The majority’s insistence that this is not a new rule
does not make the effect of this ruling any less real.

Notwithstanding the standards set by Congress and our
recent decision in Lands Council, my colleagues are attempt-
ing to judicially legislate, ostensibly through NEPA, an addi-
tional procedural requirement that necessarily imposes
considerable substantive burdens on the parties. We were
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16179
reversed by the Supreme Court in Weinberger v. Catholic
Action of Hawaii/Peace Education Project, 454 U.S. 139
(1981),3 when we read NEPA to require the Navy to prepare
a hypothetical EIS based on assumptions regarding the opera-
tions of a facility capable of storing nuclear weapons. Id. at
145 (explaining that the “Court of Appeals in this case should
have accepted the balance struck by Congress, rather than
engrafting onto the statutory language unique concepts of its
own making”). My colleagues repeat this error here. It would
not fool the canary.

To add a final overburden to the new procedure, the court
eschews any attempt to opine whether the Land Exchange,
even if it complied with the majority’s new “quasi-MPO”
requirement, would violate the Mining Law of 1872. This
guarantees yet another round of expensive appeals, delaying
for many more years the completion of the Land Exchange.

Applying this novel, judicially-created NEPA requirement
to its interpretation of the record, the majority, with a few
strokes of the pen, invalidates a Land Exchange that the BLM
determined was in the public’s best interest following careful
and comprehensive evaluation. My colleagues reject without
comment the sound reasoning of the BLM Arizona State
Director, the Interior Board of Land Appeals (“IBLA”), and
the district court—all of whom considered and rejected the
same legal challenges presented by CBD—and conclude that
the agency failed to take a “hard look” at the potential envi-
ronmental consequences of the proposed action in violation of
NEPA. For the same reason, they also summarily reject as
arbitrary and capricious the BLM’s “public interest” determi-
nation pursuant to FLPMA—a determination based almost
exclusively on other considerations.
3
In Weinberger, the Court reversed our panel opinion in Catholic Action
of Hawaii/Peace Education Project v. Brown, 643 F.2d 569 (9th Cir.
1980).
16180 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
I strongly disagree with this conclusion as well as with my
colleagues’ methodology in crafting the result. We should
reject the arguments presented by CBD, and affirm the district
court’s order of summary judgment in favor of Asarco and the
BLM, because the BLM reasonably concluded that the Land
Exchange is in the best interests of the public.

II

FLPMA sets forth the principles governing the manage-
ment of lands owned by the United States and administered
by the Secretary of the Interior through the BLM. The con-
gressionally delegated authority is broad. Section 206 of
FLPMA authorizes the BLM to exchange certain public lands
for state, county, or private lands within the same state when
it determines that “the public interest will be well served by
making that exchange.” 43 U.S.C. § 1716(a). That is, “giv-
[ing] full consideration to better Federal land management
and the needs of State and local people, including needs for
lands for the economy, community expansion, recreation
areas, food, fiber, minerals, and fish and wildlife[,]” the BLM
determines whether “the values and the objectives which Fed-
eral lands or interests to be conveyed may serve if retained in
Federal ownership are not more than the values of the non-
Federal lands or interests and the public objectives they could
serve if acquired.” Id. Environmental impact is certainly a
factor, and unquestionably an important one, in the BLM’s
“public interest” determination under FLPMA. NEPA estab-
lishes the procedures by which agencies must consider the
environmental impacts of agency action, but does not dictate
substantive results. See Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350-51 (1989).

Public land exchanges frequently benefit everyone involved
in the transfer—the federal government, the exchanging pub-
lic or private property owner, and, most importantly, the pub-
lic at large. Exchanges are typically employed, as is proposed
here, to eliminate patchwork ownership of isolated parcels.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16181
Once consolidated, such lands can be managed efficiently,
effectively, and economically for all sorts of beneficial uses—
creation of parklands, wilderness areas, hiking and biking
trails, environmental remediation and protection, or improved
stewardship of multiple-use lands and forests. It is undisputed
that the Land Exchange at issue would serve these very pur-
poses, among others.4

What is unusual about these particular types of land swaps
is the overlay of congressionally authorized mineral explora-
tion and extraction rights in federal lands to which the miner
—in this case, Asarco—needs no title. Asarco’s preexisting
mining rights under the Mining Law therefore lie at the core
of this agency action.

The Mining Law states that “all valuable mineral deposits
in lands belonging to the United States . . . shall be free and
open to exploration,” 30 U.S.C. § 22, and, stated generally,
authorizes and governs prospecting and mining for economic
minerals on federal public lands. It was designed to encourage
individuals to “prospect, explore and develop the mineral
resources of the public domain through an assurance of ulti-
mate private ownership of the minerals and the lands so
developed.” United States v. Curtis-Nev. Mines, Inc., 611
F.2d 1277, 1281 (9th Cir. 1980); accord United States v.
Shumway, 199 F.3d 1093, 1098-99 (9th Cir. 1999) (“The min-
4
Despite the majority opinion’s selective and somewhat misleading pre-
sentation of the facts, the record reveals—and CBD does not contest—that
from an environmental standpoint, the selected lands are far inferior to the
offered lands that would come under federal ownership through the Land
Exchange. As stated in the record, “The BLM prepared a careful and rea-
sonable analysis of the natural resources lost and gained in the proposed
land exchange. . . . In each instance, the natural resource inventory
detailed in the FEIS [demonstrates that] the offered lands presented evi-
dence of superior resource values compared to the selected land parcels.”
Moreover, the less environmentally valuable selected lands, which are
comprised of scattered parcels that largely border the active Ray Mine
Complex, are apparently rich in copper and silver—minerals in high
demand by our technology-driven economy.
16182 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
ers’ custom, that the finder of valuable minerals on govern-
ment land is entitled to exclusive possession of the land for
purposes of mining and to all the minerals he extracts, has
been a powerful engine driving exploration and extraction of
valuable minerals . . . .”).5

Under the Mining Law, all citizens have the right to enter
public lands open to mineral entry and locate mining claims
or mill site claims. Independence Mining Co. v. Babbitt, 105
F.3d 502, 506 (9th Cir. 1997). Once a claim is staked, the
holder “has the exclusive right to possession and enjoyment
of all the surface included within the lines of the locations, but
the United States retains title to the land. This possessory
interest entitles the claimant to ‘the right to extract all miner-
als from the claim without paying royalties to the United
States.’ ” Id. (quoting Swanson v. Babbitt, 3 F.3d 1348, 1350
(9th Cir. 1993)) (internal citation omitted). “If a discovery of
a ‘valuable mineral deposit’ is made, the claim can be held
indefinitely so long as the annual assessment work is per-
formed, the necessary filings are made, fees are paid, and a
valuable mineral deposit continues to exist.” Id. It is well-
established that “[t]he owner of a mining claim owns prop-
erty, and is not a mere social guest of the Department of the
Interior to be shooed out the door when the Department
chooses.” Shumway, 199 F.3d at 1103; accord United States
v. Locke, 471 U.S. 84, 86 (1985) (“[A]n unpatented mining
claim remains a fully recognized possessory interest.”). In
other words, a mining claim, without more, still involves sig-
nificant mining rights.

The holder of a mining claim may apply for a patent to the
land under 30 U.S.C. § 29, which, if issued, conveys fee title
to the public land in favor of the claim holder. See Curtis-Nev.
Mines, 611 F.2d at 1281. This process is called “patenting” or
5
The Mining Law codified the informal system of acquiring mining
claims on public land by prospectors in California and Nevada from the
late 1840s through the 1860s. See Shumway, 199 F.3d at 1097-99.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16183
proving the claim and requires a determination whether the
claim is valid; i.e., whether “there was a legitimate discovery
of a valuable mineral deposit on the land which a prudent man
would be justified in developing.” Id. Patenting, however, is
not required to develop a claim or to engage in mining or
related activities on public land. A claim holder can conduct
“prospecting, mining or processing operations and uses rea-
sonably incident thereto” without ever obtaining a patent. 30
U.S.C. § 612(a); Curtis-Nev. Mines, 611 F.2d at 1281-82
(“[C]laimants could continue mining activities on the claims,
without ever obtaining a patent. As a practical matter, mining
claimants could remain in exclusive possession of the claim
without ever proving a valid discovery or actually conducting
mining operations.”).

Mining activities are always subject to governmental over-
sight and regulation and must comply with a panoply of fed-
eral, state, and local laws, including the Clean Air Act, the
Clean Water Act, and the Solid Waste Disposal Act, among
myriad other regulatory requirements. See 43 C.F.R.
§ 3809.420. Before engaging in mining operations beyond
casual use on public land, a claim holder must submit a pro-
posed plan of operation, an MPO, for consideration and
approval by the BLM, see id. § 3809.11—a point upon which
the majority improperly fixates. Unless “unnecessary or
undue degradation of public lands” is found to result from the
proposed operation, the BLM will approve a properly filed
MPO. Id. § 3809.411(d).

With the exception of a single 480-acre parcel, the totality
of the 10,976 acres that comprise the selected lands is com-
pletely encumbered by at least one of 751 mining or mill site
claims. Asarco holds 747 of these claims. Accordingly, Asar-
co’s ability to develop its claims on the selected lands and to
engage in mining activities and activities incident to mining
is firmly established under the Mining Law, predates the Land
Exchange proposal, and will continue to exist whether the
Land Exchange goes forward or not. It is with this practicality
16184 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
in mind that we should review the BLM’s decision to approve
the Land Exchange.

III

The Administrative Procedure Act provides the authority
for our review, and we may only set aside agency actions that
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); see N.
Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.
2006). We have held that an agency’s decision may only be
called arbitrary and capricious if:

the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an expla-
nation for its decision that runs counter to the evi-
dence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.

Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1448 (9th Cir. 1996) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). “This inquiry must be searching and careful, but the
ultimate standard of review is a narrow one,” Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quo-
tation marks omitted), and “we do not substitute our judgment
for that of the agency,” Lands Council, 537 F.3d at 987
(brackets omitted).

Having carefully reviewed and evaluated the record, I can-
not agree with the majority’s conclusion that, after fifteen
years of consideration and the compilation of a dense admin-
istrative record that includes thousands of pages of study and
thorough analysis, the BLM shirked its duty to take the requi-
site “hard look” under NEPA or otherwise acted arbitrarily or
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16185
capriciously. The law simply does not support the majority’s
holding, nor does the record.

A

In considering the proposal, the BLM prepared a draft EIS
pursuant to NEPA and, after providing for public review and
comment, issued a final EIS in 1999. The BLM had initially
considered a variety of alternatives, including the Land
Exchange as proposed, various partial exchanges, a No Min-
ing Alternative, and a No Action Alternative (i.e., where the
Land Exchange was not approved and the selected and
offered lands remained under present ownership, subject to
the mining claims which encumber them). For various rea-
sons, the original list of eleven alternatives was narrowed to
four that warranted more in-depth study: the Proposed Action,
the No Action Alternative, the Buckeye Alternative, and the
Copper Butte Alternative.

Among the initially proposed alternatives eliminated from
more detailed consideration was the No Mining Alternative.
The BLM reasonably explained:

[I]n developing alternatives, BLM concluded that
foreseeable mining-related uses of the selected lands
are actions common to all alternatives; that is,
mining/mine-support uses would likely occur
whether any one of the land exchange alternatives
were selected or the No Action alternative was
selected. This is because a land exchange is not
required for mining-related activities to take place on
the selected lands. Asarco currently holds the vast
majority of the mining claims on the public lands
selected for the exchange, and through these mining
claims, Asarco has the right to pursue development
on the selected lands for mining and mining-related
uses.
16186 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
As the EIS further explained, “[t]he foreseeable uses of the
selected lands are mining-related uses and are expected to
occur under all alternatives. Mining could occur on private
. . . lands under a land exchange, on public lands subject to
BLM’s 43 CFR 3809 regulations, or through patenting under
the Mining Law of 1872.”

The BLM’s assumption that the foreseeable use of the
selected lands will involve mining-related activities irrespec-
tive of the Land Exchange is well supported by the record and
common sense. Not even CBD disputes this conclusion. As
noted by the BLM, Asarco already operates on approximately
272 acres of the selected lands pursuant to its mining claims,
and four other copper mines in the area are considering
expansion of their mining operations into the selected lands.
Indeed, the close proximity of the selected lands to the Ray
Mine Complex—the third most productive copper mine in the
United States, which has been in operation for eighty-five
years—coupled with Asarco’s existing rights under the Min-
ing Law and its stated intention to engage in mining activities
on the selected lands whether or not the Land Exchange is
effectuated, makes this the only reasonable conclusion.

To be fair, my colleagues do not dispute this general con-
clusion regarding the foreseeability of mining activities or
propose a competing, alternative foreseeable use of the
selected lands. Nor could they. Rather, their complaint lies in
a misreading of the BLM’s careful analysis, which infects the
majority’s view of the EIS and the ROD. My colleagues adopt
a more drastic position, repeatedly faulting the BLM for sim-
ply presuming that mining operations would be “the same for
all alternatives,” whether or not there was a land exchange.
Amend. Maj. Op. at 16155; see also id. at 16148, 16155,
16156, 16157, 16158, 16160, 16167, 16168, 16169,
16170-71, 16172-73. 16174. This logical leap distorts the
BLM’s reasoned analysis. As Asarco correctly asserted at oral
argument, the BLM did no such thing.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16187
In favor of its premise, the majority solely focuses on an
isolated phrase from the record, taken entirely out of context.
In the section discussing the “Alternatives Considered,” the
EIS states: “As explained above, foreseeable uses of the
selected lands are assumed to be the same for all alternatives.”
Read in the correct context of developing and evaluating
alternatives, the statement simply reiterates the unremarkable
notion that mining activities would likely occur on the
selected lands under all possible alternatives (and that the No
Mining Alternative was neither feasible nor realistic)—a point
that no one disputes. The majority, however, implies that the
entire explanation is contained in a single isolated paragraph,
rather than throughout the EIS and the ROD. See id. at
16155-56. My colleagues are then free to characterize the
BLM’s environmental analysis as unreasoned and inadequate.
See id. That is simply not the case.

The manner and intensity of mining and mining-related
activity pose an entirely distinct question from whether min-
ing will likely occur on the selected lands. The EIS does not
reveal an unwarranted presumption on the part of the BLM
that the actual operations would be identical whether or not
the Land Exchange is approved. Rather, given Asarco’s repre-
sentations, the BLM conducted its environmental assessment
—a comparative analysis—under the assumption that mining-
related activity on land remaining under federal ownership
would be conducted in a manner consistent with Asarco’s
existing mining rights under the Mining Law and a host of
otherwise applicable federal and state environmental regula-
tions. See Lands Council, 537 F.3d at 1003 (“[W]e will not
find a NEPA violation based on the [agency]’s use of an
assumption that we approve.”). Because Asarco already holds
mining claims to nearly all of the selected lands, the BLM
reached the logical conclusion that, to the extent foreseeable,
the environmental impacts would be in many ways similar
under the various alternatives. Based on the facts of this case,
there is nothing improper or even surprising about this reason-
ing. Indeed, a contrary conclusion would be absurd.
16188 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
The majority, however, seems focused on the hypothetical,
noting that “[t]he manner in which Asarco engages in mining
on the selected lands is likely to differ depending on whether
the land exchange occurs, and the environmental conse-
quences will differ accordingly.” Amend. Maj. Op. at 16167.
Of course, the manner in which Asarco’s future mining will
occur is dependent on a variety of factors. Mining activities
would differ if the worldwide price of copper plummeted, or
if particular parcels of land did not contain sufficient quanti-
ties of minerals to warrant mining at all. However, the majori-
ty’s rumination is unaccompanied by any factual basis from
the administrative record. Nor do my colleagues disclose how
the inevitable mining activities might materially differ. It is of
course axiomatic that NEPA does not encompass all conceiv-
able scenarios. See Weinberger, 454 U.S. at 146 (“[A]n EIS
need not be prepared simply because a project is contem-
plated, but only when the project is proposed.”).

But even assuming the selected lands remained publicly
owned, given the facts of this case (namely, Asarco’s continu-
ing mining rights on the selected lands), there is nothing
unreasonable or illogical about a conclusion that, while the
timing might differ, the ultimate mining-related activities
would be substantially similar and in turn result in compara-
ble environmental impacts. On the contrary, in light of the
variables in play, that conclusion is quite sound.6 My col-
6
The majority asserts that the BLM’s position here—that environmental
impacts would be similar under the various alternatives whether or not
MPOs are filed—is inconsistent with the position it took in Mineral Policy
Center v. Norton, 292 F. Supp. 2d 30 (D.D.C. 2003). See Amend. Maj.
Op. at 16164, 16171. That is simply untrue, and its chastisement of the
Department of the Interior is inappropriate. In Mineral Policy Center, the
BLM argued that the MPO process allows it to exercise case-by-case dis-
cretion, which is one of many tools used to protect the environment with
regard to mining operations on public lands. 292 F. Supp. 2d at 44 (citing,
inter alia, the Endangered Species Act, 16 U.S.C. §§ 1531-1534; the
Archeological Resources & Protection Act, 16 U.S.C. §§ 470aa-470mm;
the Clean Water Act, 33 U.S.C. §§ 1251-1387; and the Comprehensive
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16189
leagues’ position is premised on an inflated portrayal of the
MPO process. Given the substantial rights and interests pro-
vided by the Mining Law and its goal of encouraging the
location and extraction of valuable minerals, the BLM’s
review of a claim holder’s proposed MPO is limited. The
BLM may disapprove or withhold approval of a properly sub-
mitted MPO concerning an area open to mining only if a pro-
posed operation “would result in unnecessary or undue
degradation of public lands.” 43 C.F.R. § 3809.411(d)(3); see
43 U.S.C. § 1732(b). “A reasonable interpretation of the word
‘unnecessary’ is that which is not necessary for mining.
‘Undue’ is that which is excessive, improper, immoderate or
unwarranted.” Utah v. Andrus, 486 F. Supp. 995, 1005 & n.13
(D. Utah 1979) (noting that “[t]he word ‘impair’ would pre-
vent many activities that would not be prevented by the lan-
guage of ‘unnecessary or undue degradation’ ”).

The BLM is, for example, “under no legal obligation to
determine mining claim or mill site validity before approving
a proposed plan of operations to explore for or develop miner-
als on lands open to the Mining Law’s operation.” Legal
Requirements for Determining Mining Claim Validity Before
Approving a Mining Plan of Operations, Op. DOI Solicitor
General, M-37012 (Nov. 14, 2005); see W. Shoshone Def.
Project, 160 IBLA 32, 56 (2003) (“BLM generally does not
determine the validity of the affected mining claims before
approving a plan of operations.”).7 If the BLM finds no

Environmental Response, Control & Liability Act, 42 U.S.C. §§ 9601-
9675). That statement is not inconsistent with the BLM’s reasoning in this
case. The BLM’s conclusion that Asarco’s mining-related activities would
be similar even without the MPO process does not mean that the MPO
process is generally meaningless. It simply shows that when the BLM
looked into the necessarily uncertain future in examining this particular
land exchange, its expertise led it to believe that the environmental conse-
quences would be similar whether Asarco mined on public or private land.
7
As the majority asserts, the MPO review process does trigger proce-
dures established by the BLM and will typically involve an environmental
analysis subject to NEPA. See 43 C.F.R. § 3809.411(c). Still, the limited
“unnecessary and undue degradation” standard governs the MPO approval
process, and NEPA operates within these restraints.
16190 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
unnecessary and undue degradation, and the claim holder has
obtained all required permits, the BLM must authorize the
planned mining operations.

Indeed, it is the majority—not the BLM—that has engaged
in improper conjecture and has adopted unfounded presump-
tions. Substantial governmental regulations—such as the
Clean Air Act, the Clean Water Act, and various other federal
and local safeguards—remain applicable to operations on pri-
vate land. Today’s opinion, based on a distaste for the particu-
lar industrial goals at issue, requires that courts presume that
in the absence of the MPO process, mining companies will
conduct their activities unsupervised by any environmental
regulator in a manner that unnecessarily and unduly degrades
the environment. And, in doing so, my colleagues assume that
mining companies will somehow evade the substantial state
and federal governmental regulations that remain applicable
to mining operations on private land in Arizona.

But it gets much worse. Here, because Asarco has neither
engineered nor submitted an MPO for the selected lands, a
foreseeable use plan was instead developed by the BLM as
the basis for analyzing the land exchange proposal and the
potential environmental consequences. As the BLM Arizona
State Director noted in the Protest Decision, rejecting CBD’s
arguments:

BLM considered future mining as allowed by the
Mining Law, subject to full compliance with 43
C.F.R. Part 3809, as the foreseeable use under all
exchange alternatives and the no-action alternative.
. . . Based upon a foreseeable use plan (FEIS 2.2;
Tables 2-5, 2-6; Figures 2-7, 2-8, 2-9), BLM ana-
lyzed the direct, indirect and cumulative impacts of
future mining within the limits of the information
available. . . . BLM also identified how mining
development by Asarco requires other major envi-
ronmental permits under the jurisdiction of other
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16191
federal and state agencies (FEIS, Section 1.6.4 and
Table 1-5), whether or not the lands remain federal
or in private ownership.

While not an MPO approved in accordance with the “unnec-
essary or undue degradation” standard, the foreseeable use
plan developed for the Land Exchange reasonably approxi-
mated Asarco’s planned mining-related activities and consid-
ered the ongoing regulation of anticipated mining activities
whether or not the exchange was approved. Cf. Am. Rivers v.
FERC, 201 F.3d 1186, 1195 (9th Cir. 1999) (“[O]nce we are
satisfied that a proposing agency has taken a ‘hard look’ at a
decision’s environmental consequences, our review is at an
end.” (internal quotations and brackets omitted)). The BLM
plainly stated: “Mining plans of operations are not required
for a land exchange proposal.”

This, however, is not enough for the majority. My col-
leagues fault the BLM for failing to comply with obligations
newly created in this opinion. After all, they do not, nor could
they, challenge the BLM’s environmental impact analysis in
light of the information at hand. Recognizing that detailed
findings cannot be drawn from nonexistent information about
future events not yet planned, my colleagues impose their
view of what steps the BLM should take under NEPA when-
ever preexisting mining rights are involved, even where actual
mining is speculative or the contours of planned mining activ-
ities are undefined. The opinion proclaims that, to satisfy
NEPA, “the BLM must make a meaningful comparison of the
environmental consequences of Asarco’s likely mining opera-
tions with and without the requirement that MPOs be pre-
pared by Asarco and approved by the BLM . . . .” Amend.
Maj. Op. at 16145. As discussed extensively above, that is
exactly what the BLM did in this case.

In holding that the BLM failed to conduct such a compari-
son, the majority has essentially determined that in order to
fully comprehend “the different environmental consequences”
16192 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
of the Land Exchange, NEPA requires an analysis that mimics
the MPO submission and approval process. Id. Does it? The
majority provides no authority for such a landmark holding,
leaving the legal basis for this novel NEPA requirement
steeped in mystery. The majority then labels the BLM’s deci-
sion arbitrary and capricious, because the agency did not con-
duct this newly minted judicial comparison process. Id. The
reason why the parties might not have engaged in the majori-
ty’s novel quasi-MPO process as part of the Land Exchange
is readily apparent.

As discussed above, the BLM quite clearly did conduct a
comparative analysis of the environmental impacts under the
various alternatives, including the No Action Alternative. The
majority is simply dissatisfied with the results and therefore
seeks to mask its imposition of a new MPO requirement into
the land exchange consideration process with the false state-
ment that the BLM failed to make a meaningful comparison
of the environmental consequences of the various alternatives
studied. Ultimately this is all based on the false presumption
that some undefined additional comparison would lead to sub-
stantially different findings.

What is more, the BLM did consider an alternative similar
to the novel quasi-MPO requirement announced by the major-
ity. Among the eleven alternatives initially considered in the
EIS, the BLM evaluated the Mining Plan of Operation Alter-
native. “Under this alternative, Asarco would submit an MPO,
as described in federal regulations governing mining opera-
tions on federal lands [pursuant to 43 C.F.R. § 3809].” The
BLM, however, rejected this alternative from further consid-
eration, because Asarco had not yet prepared a detailed pro-
posed plan of operations, and because, in the BLM’s view, an
MPO was neither necessary to reach an informed conclusion
nor required by the law it administers. Once again, this part
of the record draws no attention from my colleagues, and the
agency’s interpretation of its regulations is given no Chevron
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16193
deference. See Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984).

This attempt to regulate agency action by judicial fiat quite
clearly exceeds our authority. As we have held time and
again, “[w]e are not free to ‘impose upon the agency [our]
own notion of which procedures are ‘best’ or most likely to
further some vague, undefined public good.’ ” Churchill
County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001) (quot-
ing Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 549 (1978)). “Nor may we
impose ‘procedural requirements not explicitly enumerated in
the pertinent statutes.’ ” Lands Council, 537 F.3d at 993
(quoting Wilderness Soc’y v. Tyrrel, 918 F.2d 813, 818 (9th
Cir. 1990)) (brackets omitted). But despite insisting that the
majority’s decision is consistent with Lands Council, it is just
the opposite. According to today’s opinion, the BLM was
obliged to determine the exact environmental consequences
under hypothetical future MPOs for hypothetical future mines
and compare them to the environmental consequences of
hypothetical future mines not subject to the MPO require-
ment. Essentially, the BLM must demand that Asarco fully
explore the selected lands, develop a detailed mining plan,
and submit a proposed plan of mining operations for approval
—one mimicking an MPO. The BLM is then required, under
NEPA, to consider that quasi-MPO as if it were in fact a filed
MPO under the Mining Law. Stated in real terms, the
approval process of a proposed land exchange under FLPMA
henceforth incorporates, by way of NEPA, the Mining Law’s
governance of mining activities on public lands. But, of
course, the majority will not say that if Asarco does all this,
it will have complied with the Mining Law.

I find no legal basis for this newly-minted, quasi-MPO
requirement—”a creature of judicial cloth, not legislative
cloth, . . . not mandated by any of the statutory or regulatory
provisions upon which [the majority] relied.” Weinberger,
454 U.S. at 141. “Lands Council teaches that our proper role
16194 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
is simply to ensure that the agency, in its expertise, made no
clear error of judgment rendering its action arbitrary and
capricious.” Nw. Coal. for Alternatives to Pesticides v. EPA,
544 F.3d 1043, 1060 (9th Cir. 2008) (Ikuta, J., concurring in
part, dissenting in part). Just as “we defer to the Forest Ser-
vice as to what evidence is, or is not, necessary to support
wildlife viability analyses,” Lands Council, 537 F.3d at 992,
we must defer to the BLM as to what evidence is, or is not,
necessary to support a foreseeable environmental impact
assessment of anticipated and continuing mining activities in
order to make an informed “public interest” determination.
See also Coeur Alaska, Inc. v. Se. Alaska Conservation Coun-
cil, 129 S. Ct. 2458, 2473 (2009) (noting deference given to
agencies’ interpretations of own regulatory scheme). My col-
leagues clearly disagree. Who needs Chevron deference? Why
adhere to Lands Council? Judges will now administer the
duties Congress has entrusted to the administrative agency.

In sum, the majority’s creation of the novel quasi-MPO
requirement grossly oversteps our role in reviewing agency
action and is irreconcilable with our precedent. Indeed, it sig-
nals a return to the type of overly zealous scrutiny applied in
Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005),
which we expressly overruled in Lands Council. See 537 F.3d
at 990. As was the case in Lands Council, the agency “is at
liberty, of course, to [conduct further analysis] if it deems it
appropriate or necessary, but it is not required to do so.” Id.
at 991-92. It is certainly not for us as Article III judges to
feign superior expertise in such specialized areas and to
micro-manage agencies in executing their congressionally
delegated administrative functions.

The majority attempts to evade the clear language of our
unanimous en banc opinion in Lands Council by arguing that
“[t]he NEPA issue in the case now before us is quite different
from the NEPA issues in Lands Council.” Amend. Maj. Op.
at 16170. That is as true as it is irrelevant. The common issue
in Lands Council and in our case is the level of deference due
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16195
an agency decision under NEPA. That level of deference is
just as applicable to the BLM’s “comparison among alterna-
tives” as it is to the Forest Service’s “failures to discuss scien-
tific uncertainty, to cite adequate evidence, or to examine
adverse impacts.” Id. The majority declares that the BLM
failed to make such a comparison here. Id. at 16171. As dis-
cussed above, that is simply not the case; the majority just
does not like the conclusion reached by the BLM after the
comparison was made.

NEPA is a procedural mechanism. Lands Council, 537 F.3d
at 992 (noting that a substantive requirement “cannot be
derived from the procedural parameters of NEPA” (quoting
Ecology Ctr., 430 F.3d at 1073 (McKeown, J., dissenting))).
It was satisfied here. The BLM did what was required of it
under the circumstances of this case—it took a “hard look” at
the reasonably foreseeable environmental consequences of the
exchange and the various alternatives. We should have
applied an “approach [that] respects our law that requires us
to defer to an agency’s determination in an area involving a
high level of technical expertise,” id. at 993 (internal quota-
tion marks omitted), and rejected CBD’s challenge under
NEPA.

B

The majority opinion’s curt analysis regarding FLPMA is
perhaps even more problematic and falters for the reasons
stated above. Rather than engaging the material legal question
whether or not the Land Exchange was in the public interest,
see 43 U.S.C. § 1716(a), my colleagues repeat their flawed
NEPA analysis, stating: “The manner in which Asarco
engages in mining on the selected lands is likely to differ
depending on whether the land exchange occurs, and the envi-
ronmental consequences will differ accordingly.” Amend.
Maj. Op. at 16167-68. Despite the BLM’s well-articulated
bases for its approval of the Land Exchange, the majority
16196 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
declares that this alone renders the reasoned “public interest”
determination arbitrary and capricious.

That declaration ignores the fact that, in the ROD, the BLM
gave five main reasons why approval of the Land Exchange
was in the public interest and thus satisfied § 206 of FLPMA:

1) Facilitating better land management by acquir-
ing private lands within special areas of designation
(the McCracken Desert Area of Critical Environ-
mental Concern (ACEC) which exhibit a “checker
board” land ownership pattern and removing inhold-
ings from the Mt. Tipton Wilderness). This will
remove resource and use conflicts, facilitate a more
efficient management, and enable better implementa-
tion of resource management plan (RMP) decisions
for the Kingman RMP.

2) Improving wildlife and ACEC habitats by
adding the Gila River at Cochran parcel and
McCracken ACEC parcels to federal protection and
management. The Gila River parcel (320 acres) sup-
ports threatened and endangered species by provid-
ing critical habitat for the cactus ferruginous pygmy-
owl and occupied habitat for the southwestern wil-
low flycatcher. The McCracken ACEC provides
6,500 acres of Category I desert tortoise habitat. The
Sacramento Valley and Tomlin parcels also support
Category I and II desert tortoise habitat.

3) Supporting resource objectives for improving
riparian zones by acquiring parcels along the Big
Sandy and Gila Rivers. Tomlin Parcel #4 and the
Gila River at Cochran Parcel contain riparian values
and enable more efficient and effective management
of riparian zones along those rivers.

4) Continuing to support mining activities as
approved in the Phoenix RMP. The exchange pro-
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16197
vides lands which will enable Asarco to plan expan-
sions, comply with environmental permits, buffer
operations from surrounding lands, and continue
operating on parcels with approved mine plans of
operations (MPOs) authorized under 43 CFR 3809.

5) Improving management of mineral rights by
removing split estate lands from BLM administration
(2,808 acres) of federal estate below state or private
surface and from parcels with existing operations
under approved MPOs. This does not alter federal
permits from other agencies administering signifi-
cant environmental programs such as the Clean
Water Act and Clean Air Act.

“As an additional rationale for approving the land exchange,”
the ROD also noted that “the continuation of mining [was] the
foreseeable use of most of the selected lands whether the
exchange occurs or not.” In reaching this conclusion, the
BLM referred to the Mining Law and Asarco’s rights arising
from its 747 mining claims, Asarco’s pending patent applica-
tion for portions of the selected lands (which, if approved,
would convey fee title to Asarco), mineral potential reports
indicating the presence of ore bodies that may have economic
potential for future mining, and the current use of parcels in
the neighboring Ray Mine Complex, which was 100%
mining-related.8
8
Despite the BLM’s meaningful discussion on the topic, the majority
curiously proclaims that the ROD did not address the objection raised by
the EPA, the Bureau of Indian Affairs, and the Sierra Club to the BLM’s
assumption that the foreseeable use of the selected lands will be mining,
whether or not the exchange occurs. See Amend. Maj. Op. at 16156,
16171 (accusing the BLM of “not respond[ing] to the second sentence” of
the objection). In direct response to that objection, the ROD cited the
“FEIS General Response Section 7.4.5 and 7.4.6,” as the opinion acknowl-
edges, and went on to explain that mining is already an “approved use”
under the current resource management plan and that analysis “indicated
that mineral development would continue or increase” in the selected
lands. Finally, the ROD referenced, in an immediately following sentence,
the “FEIS sections that deal with the foreseeable uses in the absence of
mining plans of operations,” which are discussed above.
16198 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Moreover, the ROD recognized that, under the No Action
Alternative, the BLM must anticipate substantial future man-
agement actions, including processing multiple MPOs and
patent applications, while the offered lands would remain in
Asarco’s ownership and most likely be divided into smaller
parcels and sold for profit. In other words, significant portions
of the selected lands would inevitably be burdened by mining-
related activities, either pursuant to Asarco’s mining claims or
after fee title was conveyed to Asarco through the patenting
process. Simultaneously, the offered lands, which would pro-
vide significant public benefit under federal ownership (e.g.,
as described in paragraphs (1) through (3), quoted above),
would remain in private hands and likely be subject to subdi-
vision and private development, including possible mining
activities. How could the public interest possibly be served by
this outcome? This reality weighed heavily in the BLM’s
determination.

The majority’s analysis literally ignores the reasons pro-
vided in the ROD and the sound logic of the BLM in deter-
mining which course best serves the public interest. Indeed,
it further ignores the Protest Decision of the BLM Arizona
State Director, upholding the BLM’s public interest determi-
nation, and the IBLA’s expertise and experience in denying
CBD’s administrative appeal. See Ctr. for Biological Diver-
sity, 162 IBLA 268 (2004).9 Finally, it ignores the district
9
The majority selectively quotes language from the concurring opinion,
claiming that it supports its wayward NEPA analysis. See Amend. Maj.
Op. at 16156-57 (quoting Ctr. for Biological Diversity, 162 IBLA at 291
(Hemmer, Admin. J., concurring)). But the majority omits the paragraph
immediately following the quoted text, which fully conveys Administra-
tive Judge Hemmer’s concurrence in the result reached by the IBLA:
Nonetheless, I agree with the lead opinion that [CBD’s] argu-
ments do not sufficiently take into account the record and the
mining uses of the land evident therein, nor the above-described
facts, in suggesting that mining would be entirely different if the
selected lands were not transferred outside of Federal ownership
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16199
court’s summary judgment in favor of Asarco and the BLM,
rejecting as a matter of law CBD’s continued objection to the
Land Exchange. Instead, the opinion focuses solely on the
“additional rationale” that the BLM mentioned in further sup-
port of its determination. Based entirely on their suspicion
that the mining activities “may” differ depending on whether
the Land Exchange is consummated, my colleagues hold that
the extensive agency analysis approving the Land Exchange
was, in its entirety, arbitrary and capricious.

I cannot agree with this result, which seems uninterested in
the BLM’s actual “public interest” determination. Nor can I
condone an approach that gives short shrift to the deference
judges are supposed to apply to agency action review under
our en banc decision in Lands Council. As previously dis-
cussed, there was nothing improper about the BLM’s evalua-
tion of the foreseeable use of the selected lands. Even if there
were gaps or imperfections in the BLM’s analysis, the agency
action here still does not rise to the level of an arbitrary or
capricious determination.

IV

In reaching its result, the majority focuses almost exclu-
sively on the regulatory mechanism behind MPOs, while at
the same time diminishing or ignoring altogether Asarco’s
substantial preexisting mining rights under the Mining Law,
the standard for and purpose of FLPMA land exchanges, and
the state and federal environmental regulations that remain

and that BLM thereby did not adequately identify the effects of
the proposed action.
162 IBLA at 291 (Hemmer, Admin. J., concurring). Thus, whether or not
she believed that the BLM might have been able to conduct a more thor-
ough environmental analysis, see Amend. Maj. Op. at 16156-57, 16165,
16171, she determined that such an analysis was not required by law. The
majority today nonetheless engrafts that requirement onto the statute under
the guise of interpreting it.
16200 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
applicable to the selected lands whether under private or pub-
lic ownership. The thrust of the opinion relates to the differ-
ence in governmental oversight of mining operations
conducted on federal versus non-federal lands, i.e., whether
prior agency approval of mining plans is required. This dem-
onstrates a clear distrust of Asarco and the BLM—a distrust
unsupported in the extensive record before us.

The majority is plainly concerned about the unavoidable
uncertainty regarding the ultimate environmental impacts that
will occur, which admittedly could be substantial and perhaps
different than estimated in the EIS. Apprehension over a spec-
ulative outcome should neither drive a particular result nor
prompt the creation of bad law.10 Unfortunately, my col-
leagues have succumbed to this temptation and, in doing so,
have sacrificed the integrity of our precedent and the best
interests of the public in order to achieve a particular outcome
in the instant case.

The majority’s holding is shortsighted and unreasonably
impairs the BLM’s ability to effectively manage the public
lands in a manner that we all desire. In practice, the newly
minted quasi-MPO requirement will unquestionably stifle, if
not altogether stymie, land exchanges, especially whenever
mining companies are involved or mining-related activities
are contemplated. Indeed, this judicially created obstacle
would be, in application, an impenetrable wall.

Furthermore, by grafting this time-consuming and expen-
sive process onto FLPMA’s “public interest” determination
(ostensibly though NEPA), our opinion today eliminates one
10
I also note that a mining company could theoretically deviate from an
approved MPO or quasi-MPO after a land exchange is effectuated once
the public land is conveyed to private ownership. Therefore, I suspect that
the majority’s new NEPA hurdle does not resolve its concerns and, practi-
cally speaking, serves no legitimate purpose other than to defeat the Land
Exchange.
 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 16201
key incentive that encourages private landowners, such as
Asarco and other mining claim holders, to offer their valuable
private property in exchange for federal land. Like it or not,
most businesses are driven largely by economic consider-
ations. At some point, claim holders will elect to simply exer-
cise their rights under the Mining Law to the offered lands
and proceed through the MPO or patenting process in order
to engage in mining activities and to simultaneously develop
or market their valuable private lands for additional commer-
cial gain. Then what? The public would be deprived of the
offered lands, which are undisputedly superior in almost all
respects (except for mineral deposits) to the selected lands—
a collection of scattered parcels near an active, large-scale
mining operation, which are, and which will continue to be,
heavily burdened by mining claims. In addition to being
legally untenable, the majority’s approach announced today is
impractical, misguided, and contrary to the best interests and
welfare of the public at large.

It is not the personal opinions of judges that matter in deter-
mining whether the Land Exchange is in the best interests of
the public. See Amend. Maj. Op. at 16173. What matters is
whether the agency followed a reasonable process in reaching
its conclusion. The BLM determined that the Land Exchange
was in the public interest, as required by FLPMA, for all the
reasons detailed above. As summarized in the ROD, the
offered lands “have high public values for: wilderness inhold-
ings . . . ; riparian zones . . . ; other habitat supporting threat-
ened and endangered or special species; and cultural and
recreation values. The public interest will be served by mak-
ing the exchange.”

V

The BLM’s conclusion that the foreseeable use of the
selected lands includes mining activities and related uses is
certainly supported by substantial evidence in the record. See
Dickinson v. Zurko, 527 U.S. 150, 163-64 (1999) (noting that
16202 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
the standard is even more deferential than the clearly errone-
ous standard of review). Neither NEPA nor FLPMA requires
that Asarco prepare and submit a quasi-MPO or that the BLM
conduct a quasi-MPO approval process in order to determine
whether a proposed land exchange is in the public interest.

I would faithfully apply our precedent and affirm the dis-
trict court’s summary judgment in favor of the BLM and
Asarco. Today’s opinion embodies the type of judicial med-
dling in agency action that we intended to put to rest in Lands
Council. Its implications are far-reaching and severe. I
respectfully dissent. Has anyone seen the canary?