Greater Yellowstone v. Lewis

FILED
FOR PUBLICATION DEC 23 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

GREATER YELLOWSTONE No. 09-35729
COALITION; NATURAL RESOURCES
DEFENSE COUNCIL; SIERRA CLUB; D.C. No. 4:08-cv-00388-MHW
DEFENDERS OF WILDLIFE,

Plaintiffs - Appellants, OPINION

v.

WILMA A. LEWIS; TOM TIDWELL;
ROBERT V. ABBEY; THOMAS J.
VILSACK; KEN SALAZAR; BRENT
LARSON, Supervisor, Caribou-Targhee
National Forest,

Defendants - Appellees,

J.R. SIMPLOT COMPANY; UNITED
STEELWORKERS LOCAL 632; CITY
OF POCATELLO; CITY OF
CHUBBUCK; CITY OF SODA
SPRINGS; POWER COUNTY;
CARIBOU COUNTY; BANNOCK
COUNTY; IDAHO FARM BUREAU
FEDERATION; TOWN OF AFTON,
WYOMING; LINCOLN COUNTY,
WYOMING,

Defendant-intervenors -
Appellees.
GREATER YELLOWSTONE No. 09-35753
COALITION; NATURAL RESOURCES
DEFENSE COUNCIL; SIERRA CLUB; D.C. No. 4:08-cv-00388-MHW
DEFENDERS OF WILDLIFE,

Plaintiffs,

and

ASHLEY CREEK PROPERTIES, L.L.C.,

Petitioner-intervenor -
Appellant,

v.

BRENT LARSON, Supervisor, Caribou-
Targhee National Forest, in his official
capacity; WILMA A. LEWIS; TOM
TIDWELL; ROBERT V. ABBEY;
THOMAS J. VILSACK; KEN
SALAZAR,

Defendants,

UNITED STEELWORKERS LOCAL
632; CITY OF POCATELLO; CITY OF
CHUBBUCK; CITY OF SODA
SPRINGS; POWER COUNTY;
CARIBOU COUNTY; BANNOCK
COUNTY; IDAHO FARM BUREAU
FEDERATION; TOWN OF AFTON,
WYOMING; LINCOLN COUNTY,
WYOMING,

Defendant-intervenors,

and
J.R. SIMPLOT COMPANY,

Defendant-intervenor -
Appellee.

Appeal from the United States District Court
for the District of Idaho
Miµel H. Williams, Magistrate Judge, Presiding

Argued and Submitted October 6, 2010
Seattle, Washington

Before: B. FLETCHER, TASHIMA and THOMAS, Circuit Judges.

Opinion by Judge Sidney R. Thomas

THOMAS, Circuit Judge:

Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra

Club, and Defenders of Wildlife (collectively 'Greater Yellowstone') appeal the

district court grant of summary judgment on Greater Yellowstone's action claiming

that the expansion of the J.R. Simplot Smoµy Canyon Mine would violate the

National Environmental Policy Act ('NEPA'), the Clean Water Act ('CWA'), and

the National Forest Management Act ('NFMA'). We have jurisdiction under 28

U.S.C. y 1291, and we affirm.

3
 I

Since 1984, J.R. Simplot Company ('Simplot') has operated the Smoµy

Canyon Mine in parts of the Caribou National Forest to acquire phosphate ore.

Current mining operations encompass five panels, labeled A to E, occupying

around 5,000 acres of land. Overburden from these panels contains waste rocµ

with a high selenium concentration. Although essential to animal health in small

amounts, selenium is toxic at elevated levels. Highly toxic selenium

concentrations have been found in area streams. Because of the high selenium

levels produced at the site, the existing mining operations are subject to an ongoing

site investigation and response action under the Comprehensive Environmental

Response, Compensation, and Liability Act.1

To extend the life of the Smoµy Canyon Mine, Simplot proposed to extract

resources from two federal mineral leases adjacent to the mine, designated as

panels F and G. Simplot sought approval from the two federal agencies with

jurisdiction over the federal land. The United States Bureau of Land Management

('BLM') has jurisdiction over all phosphate mining leases on public land, see 30

1
Appendix 2A of the Final Environmental Impact Statement explains the
proposed remediation efforts as of 2007, including the diversion of Pole Canyon
Creeµ around the Pole Canyon Overburden Area. As counsel noted at oral
arguments, such a diversion has successfully been implemented.

4
U.S.C. y 211, and the United States Forest Service has the authority to provide a

special use permit in furtherance of mining operations where such activities occur

on forest system lands, such as the Caribou National Forest, see 36 C.F.R. y 251.

The agencies released a Draft Environmental Impact Statement ('DEIS') for

public comment in 2005. The agencies held three public meetings in January 2006

and received 38,616 letters, emails, and comment forms responding to the DEIS.

In October 2007, the agencies published a Final Environmental Impact Statement

('FEIS'). In the FEIS, the agencies concluded that the mine expansion would not

contribute to violations of water quality standards. The agencies based this

conclusion on the combined effects of (1) Simplot's efforts to reduce the selenium

pollution seeping from Smoµy Canyon's existing pits, and (2) Simplot's proposed

store and release cover system.

In light of the existing selenium pollution, especially in Sage Creeµ, the

agencies acµnowledged the necessity of remediating the current mining areas in

order to avoid exacerbating the current water quality violations. The agencies

determined two areas--Pole Canyon and Panel E--were the major sources of

existing selenium pollution in Sage Creeµ. The agencies noted in the FEIS that

determining all sources of existing pollution would require additional

investigation. The FEIS evaluated the remediation efforts at Pole Canyon and

5
Panel E, and concluded that the remediation efforts would significantly reduce

existing selenium levels.

In combination with remediating existing pollution, Simplot sought to limit

future selenium pollution from the mine expansion by reducing the amount of

water that would flow through the newly extracted waste rocµ. Simplot conducted

scientific modeling and analysis to predict the rate at which water would filter

through the overburden and into surface water, and the amount of selenium such

water would carry. Based on that information, Simplot designed a cover that

would be placed throughout panels F and G to limit the percolation of water.

However, when Simplot tested this cover using a HELP3 water balance model, the

agencies determined the amount of precipitation entering the overburden needed to

be reduced further.

To achieve the required reductions in percolation, Simplot developed the

Deep Dinwoody Cover System, which consists of layers of one to two feet of

topsoil, three feet of material from a geological stratum µnown as the Dinwoody

Formation, and two feet of chert--a coarse material that encourages moisture

storage and subsequent removal of moisture by evapotranspiration. The agencies

eventually adopted this design in the FEIS.

6
 To test the Dinwoody Cover, Simplot hired an independent environmental

consultant, O'Kane Consultants, that performed two sets of studies using

conservative estimates of the Dinwoody Cover elements. O'Kane first used 100

years of daily climate data to run a one-dimensional model study that estimated

annual water infiltration based on evaporation, transpiration, runoff, and vertical

percolation. Because the one-dimensional model did not account for horizontal

movement of water, O'Kane then performed two two-dimensional studies. The

first two-dimensional study tooµ into account the full size of the mine, and was run

across twenty years, including the five wettest years. The second two-dimensional

study was run across the full 100 years, but used a shortened slope length instead

of the full size of the mine. The two studies were conducted using this

methodology because a full two-dimensional model would have taµen at least three

months to complete.

During the environmental review process, the agencies convened a twenty-

four person interdisciplinary group of experts, six of whom were tasµed with

reviewing water quality issues. These six experts ('the technical review team')

reviewed the results of the O'Kane studies to evaluate the models and results. One

of these experts, Dr. Christopher Carlson, the Forest Service's National Ground

Water Program Leader, expressed concern with the modeling. In his view, it failed

7
to account for the seasonal surge of snowmelt and precipitation that occurs in the

area. To address this concern, the technical review team asµed a separate

consulting firm, Knight Pi7sold Consulting Engineers, whether the studies

accounted for seasonal variations. Knight Pi7sold concluded that the studies did

account for seasonal variations by including in the inputs the peaµ flows, even

though the output (the total water percolating through the cover) was reported

annually. Because the studies showed the total annual output was no more than 0.7

inches of water, the annual output would remain the same even if that entire 0.7

inches seeped through during the peaµ flow months. After analyzing the O'Kane

studies, the technical review team noted that the lacµ of monthly outputs 'led to

uncertainty within the technical review team about the short-term accuracy' of the

results. However, the technical review team concluded that additional modeling

was not necessary because the team members were confident in the long-term

results and because Simplot agreed to testing of the cover to confirm it operated as

the model predicted.

Throughout the review process, the agencies collaborated with the Idaho

Department of Environmental Ïuality ('IDEÏ'), the Idaho agency charged with

enforcing water quality standards in Idaho. The IDEÏ appointed members to the

technical review team, assisted with sampling and interpreting results, and

8
participated in the modeling review. It concluded that the mine expansion would

not result in violation of either surface or groundwater quality standards, and

concurred with the agencies' approval of the project.

The project was approved by the agencies, despite Greater Yellowstone's

objections. After exhausting the administrative remedies, Greater Yellowstone

filed suit in district court alleging the agencies' approval violated the CWA, the

NFMA, and NEPA. Greater Yellowstone sought a preliminary injunction against

the mine expansion. The court granted J.R. Simplot Company, various Idaho and

Wyoming cities and counties, United Steelworµers Local 632, and the Idaho Farm

Bureau Federation intervenor status. The district court denied the motion for a

preliminary injunction and granted summary judgment for the agencies.2 Greater

Yellowstone filed a timely appeal to this court.

We review a district court's grant of summary judgment de novo. Araµaµi v.

Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002). We may set aside agency action if it

2
Greater Yellowstone appealed the district court's denial of the preliminary
injunction motion to this court. We held that the district court too narrowly
confined its analysis of irreparable harm, so we vacated in part and remanded,
issuing a temporary stay until such proceedings could be completed. On remand,
the district court again denied the preliminary injunction motion. Greater
Yellowstone appealed and filed a motion for an emergency injunction pending
appeal, which we denied. Greater Yellowstone's second appeal for review of the
district court's preliminary injunction decision was dismissed as moot after the
district court's summary judgment decision.

9
is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.' 5 U.S.C. y 706(2)(A). As we recently explained:

[W]e will reverse a decision as arbitrary and capricious only if the
agency relied on factors Congress did not intend it to consider,
entirely failed to consider an important aspect of the problem, or
offered an explanation that runs counter to the evidence before the
agency or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.

The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc),

overruled on other grounds by Winter v. Natural Res. Def. Council, 129 S. Ct. 365

(2008) (quotations and citations omitted). Agencies have discretion to rely on their

own experts' reasonable opinions to resolve a conflict between or among

specialists, even if we find contrary views more persuasive. Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 378 (1989). In sum, our 'inquiry must 'be searching

and careful,' but 'the ultimate standard of review is a narrow one.'' Id. (quoting

Citizens to Preserve Overton Parµ, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

II

On appeal, Greater Yellowstone contends that the agencies: (1) acted

arbitrarily and capriciously in violation of NEPA, the CWA, and the NFMA; (2)

violated NEPA's hard looµ and public disclosure requirements; and (3) failed to

acquire a y 401 certification as required under the CWA.

10
 A

The district court correctly concluded that the agencies did not act arbitrarily

or capriciously in violation of the CWA and the NFMA by approving the mine

expansion.

The CWA requires federal agencies to determine that approved actions do

not result in pollution in violation of state water quality standards. 33 U.S.C. y

1323(a). The IDEÏ has promulgated regulations establishing the maximum

acceptable level of selenium at .00005 milligrams per liter. Idaho Admin. Code y

58.01.02.210.01. The NFMA requires the Forest Service to develop

comprehensive management plans for each unit of the National Forest System, 16

U.S.C. y 1604(a), and all subsequent agency action must be consistent with the

governing forest plan, id. y 1604(i). The Caribou National Forest Plan provides

that in phosphate mine areas, '[o]verburden and soil materials shall be managed

according to state-of-the-art protocols to help prevent the release of hazardous

substances in excess of state and/or federal regulatory standards.' U.S. Dep't of

Agriculture, Forest Service, Revised Forest Plan for the Caribou National Forest 4-

83 (Feb. 2003).

Although selenium pollution is currently a serious problem at the site, the

agencies concluded in their FEIS that Simplot's mine expansion would not result

11
in increased selenium pollution in violation of Idaho law or the Caribou National

Forest Plan, as prohibited by the CWA and NFMA. This determination rested on

the agencies' conclusion that existing selenium pollution could be reduced and

future selenium pollution could be limited. In reviewing agency decisions, we

must determine whether the agencies' decision is 'founded on a rational

conclusion between the facts found and the choices made.' Ariz. Cattle Growers'

Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir. 2001).

Greater Yellowstone argues that the agencies failed adequately to examine

other sources of existing selenium pollution when concluding that remediation at

two of the µnown sources--Pole Canyon and Panel E--would be sufficient to

offset future pollution from the mine expansion. The agencies acµnowledged that

without decreasing existing pollution, the mine expansion would exacerbate the

current selenium exceedences. The agencies then examined the available evidence,

which indicated that Pole Canyon and Panel E were the major contributors of the

existing selenium contamination. After evaluating the data, the agencies

determined that remediation efforts at Pole Canyon and Panel E alone would be

sufficient to offset selenium from the expansion. Because this is a rational

conclusion from the facts found, neither the CWA or the NFMA required the

agencies to identify further any other possible source of pollution.

12
 Greater Yellowstone argues the agencies' reliance on the O'Kane studies

was arbitrary and capricious because the studies failed to account for seasonal

variations. Although Greater Yellowstone points to Dr. Carlson's concerns about

whether the studies adequately modeled peaµ flows, the record demonstrates that

the agencies fully evaluated Dr. Carlson's concerns. Not only did O'Kane assure

the agencies that the models addressed seasonal variations, the technical review

team specifically asµed a separate consultant whether the studies accounted for

such changes in precipitation. All of the experts agreed that the model effectively

accounted for seasonal variation in the long-term. Although the team admitted to

uncertainty about the short-term accuracy of the model, this limited qualification of

the team's conclusions falls far short of Greater Yellowstone's assertion that it

'failed to consider an important aspect of the problem.' Motor Vehicle Mfrs. Ass'n

v. State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983).

Because the record demonstrates that the agencies fully considered Dr.

Carlson's concerns, examined the relevant evidence, and made a reasonable

conclusion, their actions were not arbitrary or capricious.

B

The district court properly concluded that the agencies did not violate

NEPA. NEPA requires two things: that an agency 'consider every significant

13
aspect of the environmental impact of a proposed action,' and that it 'inform the

public that it has indeed considered environmental concerns in its decisionmaµing

process.' Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97

(1983) (quotations omitted). Unliµe the CWA, NEPA does not require particular

environmental standards or mandate that agencies achieve substantive

environmental results. Bering Strait Citizens for Responsible Res. Dev. v. U.S.

Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir. 2008). Greater Yellowstone

asserts that the agencies violated NEPA by failing to conduct the hard looµ

required and by failing fully to disclose internal uncertainties about the studies.

1

Greater Yellowstone contends the agencies should have conducted a more

searching review in two ways. First, Greater Yellowstone argues the agencies

should have ordered additional two-dimensional modeling to respond to Dr.

Carlson's claim that the models did not account for seasonal variations. Failure to

order additional studies does not, however, equate to a failure to evaluate the

environmental impact of the proposal. As discussed previously, the agencies'

technical review team conducted a thorough review of the extensive modeling

studies, and specifically asµed an outside consultant to evaluate Carlson's

concerns. Although Greater Yellowstone may disagree with the conclusion that

14
the model fully accounted for seasonal variations, reliance on the model does not

constitute a NEPA violation because the agencies conducted the requisite

investigation. See Marsh, 490 U.S. at 378 ('When specialists express conflicting

views, an agency must have discretion to rely on the reasonable opinions of its own

qualified experts even if, as an original matter, a court might find contrary views

more persuasive.'). Indeed, the record supports the conclusion that the proposed

cover design could handle such seasonal fluctuations.

The fact that the agencies relied on future testing to verify the model's

predictions does not invalidate the previous, rigorous evaluation the agencies

conducted. Because the agencies had already satisfied NEPA's hard looµ

requirement, the decision to require future testing should not now be construed as

undermining their evaluation of the environmental impacts of the mine expansion.

Due to this testing, the agencies are in a unique position to monitor the

effectiveness of the cover system. Furthermore, because the requirement of future

testing is a condition of the permit issued to Simplot, the agencies obviously can

enforce that condition of the permit. Should the testing reveal significant

15
inadequacies or miscalculations in the modeling, the agencies presumably are

authorized to, and will require Simplot to, taµe corrective action.3

Greater Yellowstone's reliance on Western Watersheds Project v.

Kraayenbrinµ, -- F.3d --, 2010 WL 340012 (9th Cir. Sept. 1, 2010), in which we

held that the BLM's failure to address concerns raised by experts violated NEPA's

hard looµ requirement, is misplaced. In Western Watersheds, the BLM offered 'no

reasoned analysis whatsoever' in support of its conclusion and 'never seriously

considered' a 'deluge of concerns.' Id. at *16-*17. In contrast, the agencies here

not only fully recognized and evaluated the impact of future selenium pollution,

they specifically asµed an outside consultant about the one concern Greater

Yellowstone says they ignored, justifiably relied on the vast majority of experts

3
As everyone acµnowledges, it will taµe years for any effects of selenium
pollution to materialize fully. However, the monitoring efforts detailed in
Appendix 2E of the FEIS explain how the agencies will evaluate, from the day the
mine opens, any changes that may affect long term water quality. Among other
things, Simplot is required to analyze ground and surface water samples bi-
annually, monitor fish population surveys, aquatic habitat surveys, and selenium
concentration inventories regularly, and construct the cover system in phases to
ensure compliance before final implementation. Simplot must then submit the data
from this monitoring to the agencies annually. Furthermore, '[w]here non-
compliance with state and federal standards . . . is noted, BLM may issue an order
to the operator. . . . If there is a failure to comply with an order or there is an
imminent threat of serious or irreparable damage to the environment a cessation of
mining order may be issued by the BLM.'

16
who said the model accounted for seasonal variations, and further implemented

testing and monitoring to ensure compliance. This is all NEPA requires.

The second way in which Greater Yellowstone asserts the agencies should

have conducted a more searching review is by identifying other existing sources of

pollution in addition to Pole Canyon and Panel E. By failing to evaluate other

potential sources, Greater Yellowstone contends the agencies did not give the

environmental impact of the mine expansion the requisite 'hard looµ.' NEPA,

however, only mandates an evaluation of a proposed plan's future environmental

impact. Because the agencies reasonably concluded that remediation efforts at

Pole Canyon and Panel E alone would sufficiently offset future pollution, any other

investigation of existing pollution was not required.

2

Greater Yellowstone argues that the agencies also violated NEPA by failing

to disclose the internal uncertainty as to the model's short term accuracy and by

publicly denying any uncertainty. The district court properly determined that the

agencies appropriately disclosed all relevant uncertainties.

An agency, 'must acµnowledge and respond to comments by outside parties

that raise significant uncertainties and reasonably support that such uncertainties

exist.' McNair, 537 F.3d at 1001. However,

17
 [T]o the extent our case law suggests that a NEPA violation occurs
every time [an agency] does not affirmatively address an uncertainty in
the EIS, we have erred. After all, to require the [agency] to
affirmatively present every uncertainty in its EIS would be an onerous
requirement, given that experts in every scientific field routinely
disagree; such a requirement might inadvertently prevent the [agency]
from acting due to the burden it would impose.

Id. We cannot hold in this case that one statement indicating uncertainty within the

technical review team represents a significant uncertainty as to the model's ability

to predict future pollution levels. This conclusion is supported by the voluminous

evidence in the record manifesting confidence in the modeling results and the

ultimate determination by the technical review team supporting the models'

predictions.

Greater Yellowstone relies on Lands Council v. Powell, 395 F.3d 1019, 1031

(9th Cir. 2005), in which we held that the Forest Service violated NEPA when it

relied upon a flawed model and failed to disclose the limitations of that model in

the EIS. In Powell, however, the government conceded that the model did not

include relevant variables. Id. at 1031-32. In contrast, the agencies here argue that

the relevant variables reflecting seasonal variations were included and that Dr.

Carlson's objections went to the time scale of the model output rather than the

input variables.

18
 Because the one sentence in the record indicating some uncertainty within

the team does not rise to the level of 'significant uncertainty' contemplated by

McNair, we hold that the agencies did not violate NEPA's disclosure requirements.

C

The district court correctly concluded that Simplot did not fail to acquire a

y 401 certification as required under the CWA. The y 401 certification

requirement applies only to discharges from point sources. See Or. Natural Desert

Ass'n v. Dombecµ, 172 F.3d 1092, 1095-97 (9th Cir. 1998). Simplot was not

required to obtain a y 401 certification because the mining pits protected by the

cover do not qualify as a point source.

Pursuant to y 401 of the CWA, '[a]ny applicant for a Federal license or

permit to conduct any activity . . . which may result in any discharge into the

navigable waters, shall provide the licensing or permitting agency a certification

from the State in which the discharge originates.' 33 U.S.C. y 1341(a)(1). The

CWA defines 'discharge' as including 'any addition of any pollutant to navigable

waters from any point source.' Id. y 1362(12)(A). A point source is defined by

the CWA as 'any discernible, confined and discrete conveyance . . . from which

pollutants are or may be discharged.' Id. y 1362(14).

19
 The text of y 401 and the case law are clear that some type of collection or

channeling is required to classify an activity as a point source. See Trustees for

Alasµa v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (þ[P]oint and nonpoint sources

are not distinguished by the µind of pollution they create or by the activity causing

the pollution, but rather by whether the pollution reaches the water through a

confined, discrete conveyance.þ). When evaluating what constitutes a point source

in the mining context specifically, we have noted that Congress intended 'runoff

caused primarily by rainfall around activities that employ or create pollutants' to

be a nonpoint source. Id. (citing United States v. Earth Sciences, Inc., 599 F.2d

368, 373 (10th Cir. 1979)).

In the proposed mine expansion, there are two potential discharges where

polluted water enters the ground and, eventually, surface water. First, water runs

off the top of the cover. This water enters a type of stormwater drain system

before it is released. This stormwater system is exactly the type of collection or

channeling contemplated by the CWA, and Simplot has obtained the requisite

y 401 certification for that system.

The second potential source of discharge occurs when some water seeps

through the cover and into the pits containing waste rocµ. This is nonpoint source

pollution because there is no confinement or containment of the water; the cover is

20
designed to divert water away from the pits. As such, the water filters into the pits

at a rate less than water would filter into the surrounding ground that is not

protected by the cover. The small amount of precipitation (around 0.7 inches a

year) that does maµe it through the cover is not collected or channeled, but instead

filters through 200 feet of overburden and 250 to 750 feet of undisturbed material

beneath the overburden, eventually entering the surface water. See N.W. Envtl.

Def. Ctr. v. Brown, --- F.3d ---, 2010 WL 3222105, at *4-5 (9th Cir. Aug. 17,

2010) ('Stormwater that is not collected or channeled and then discharged, but

rather runs off and dissipates in a natural and unimpeded manner, is not a discharge

from a point source.'). The pits that collect the waste rocµ do not constitute point

sources within the meaning of the CWA, and Simplot was not required to obtain a

permit under y 401.

III

The agencies did not act arbitrarily and capriciously in their review and

approval of Simplot's proposed mine expansion project. The agencies complied

with NEPA's procedural requirements by fully evaluating the environmental

impacts of the mine and disclosing those results to the public. Simplot was not

required to obtain a y 401 certification. The district court properly granted

summary judgment to the agencies.

21
AFFIRMED.

22
 Counsel

Timothy J. Preso and Douglas L. Honnold; Earthjustice; Bozeman, Montana;
attorneys for appellants.

Robert H. Foster, Aaron P. Avila, and Justin R. Pidot; United States Department of
Justice; Washington, D.C.; attorneys for appellees.

David H. Maguire; Maguire & Penrod; Pocatello, ID; and James Sanderson; Afton
Wyoming; attorneys for intervenor-defendants United Steelworµers Local 632;
Idaho Farm Bureau Federation; City of Pocatello, Idaho; City of Soda Springs,
Idaho; City of Afton, Wyoming; Power County, Idaho; Bannocµ County, Idaho;
Caribou County, Idaho; and Lincoln County, Wyoming.

Albert P. Barµer and Paul L. Arrington; Barµer Rosholt & Simpson, LLP; Boise,
Idaho, attorneys for intervenor-defendant J. R. Simplot Company.

23
 FILED
Greater Yellowstone v. Lewis 09-35729 B. Fletcher, Circuit Judge, dissenting:23 2010
DEC

MOLLY C. DWYER, CLERK
I respectfully dissent. Although I concur in Part II.C of the majority. CO U RT OF AP PE A LS
U.S

opinion, I cannot agree with the majority that the federal agencies acted neither

arbitrarily nor capriciously when approving the Smoµy Canyon Mine expansion

project. The majority violates both the letter and the spirit of the applicable federal

environmental standards by approving agency action despite currently lacµing

critical information and by deferring µey evaluations to some unspecified future

date.

I

To understand fully what is at issue in this case, it is necessary to focus on

two µey facts. First, in 2003, the Environmental Protection Agency, U.S. Forest

Service, and Idaho Department of Environmental Ïuality signed an Administrative

Order on Consent pursuant to the Comprehensive Environmental Compensation

Liability Act (CERCLA) with the J.R. Simplot Company ('Simplot'). This order

required Simplot to undertaµe a set of 'removal response actions' to clean up

selenium pollution the company's mining activities had caused in and around the

Smoµy Canyon Mine. There is no evidence, however, that Simplot has complied

with its obligation to develop and implement a comprehensive clean-up plan for

pollution stemming from existing mine panels A, B, C, and D. In fact, Simplot has

1
only identified some of the sources of extant selenium pollution caused by its

mining activities in Smoµy Canyon.

Second, Simplot is at the helm of an industry that contributes millions of

dollars annually to the economy of southeastern Idaho and western Wyoming.

Simplot's Smoµy Canyon Mine in eastern Idaho provides phosphate ore through a

slurry line to a manufacturing facility µnown as the Don Plant in Pocatello, Idaho.

The claim is that, if the Smoµy Canyon Mine expansion project were halted, the

Don Plant would face closure. As evident from the myriad intervenors in this law

suit, significant economic interests oppose this outcome.

For example, according to the United Steelworµers Local 632, the union

which represents more than 250 employees at the Don Plant, that facility provides

over ü33 million in wages, salaries, and benefits for residents of four counties.

The Don Plant is thus a µey source of employment in an area where many residents

lacµ post-high school educations and where unemployment is chronic. Roger

Chase, a former Simplot employee who served as the mayor of Pocatello from

2002 through 2009, estimated that Simplot jobs paid twenty to thirty percent more

than other new jobs available in Pocatello. Chase also testified that Simplot

'provides substantial benefits to the City of Pocatello,' including funding for Idaho

State University. The Idaho Farm Bureau Federation has warned that the closure

2
of the Don Plant would adversely affect Idaho farmers' farming costs and overall

standards of living. County commissioners for communities adjacent to the Don

Plant estimated that the closure of either the mine or the plant would result in the

loss of millions of dollars in tax revenues, jeopardizing local school district

budgets and other social services in the region.

II

Against this bacµdrop, Simplot applied to the Bureau of Land Management

('BLM') and the U.S. Forest Service (collectively, 'the agencies') for permission

to expand the Smoµy Canyon Mine into two new panels, F and G. The expansion

would extend the life of the mine, and of the Don Plant, by fourteen to sixteen

years. On the record before us, I cannot agree with the majority that the agencies

did not act arbitrarily or capriciously in approving the mine expansion project, in

violation of the Clean Water Act ('CWA'), National Forest Management Act

('NFMA'), and the National Environmental Policy Act ('NEPA'). Rather, I

would hold that the agencies violated these federal laws in three distinct ways: (1)

by authorizing the expansion project on the basis of admittedly incomplete

information regarding sources of extant selenium pollution, without any indication

that the missing information could not reasonably be obtained; (2) by relying on

the results of concededly inadequate modeling to predict the water quality impacts

3
of the expansion project; and (3) by adopting what amounts to a 'test while

mining'scheme, relying on post-decisional modeling rather than additional

modeling prior to project approval to evaluate the expanded mine's environmental

impacts.

A

Under the CWA, states are required to compile a list of water bodies, called

a y 303(d) list, that do not achieve applicable water quality standards. See 33

U.S.C. y 1313(d). The Final Environmental Impact Statement ('FEIS') for the

mine expansion project referenced the 2002 list, which encompassed twenty-four

miles of streams considered impaired by selenium. The impaired water bodies

include South Forµ Sage Creeµ, Pole Canyon Creeµ, and various other tributaries

to Sage Creeµ. The record nowhere reveals what µind of remediation has been

undertaµen.

In evaluating the mine expansion project, the agencies determined that

remediation at just two µnown sources of selenium pollution, Pole Canyon and

Panel E, would suffice to offset future pollution caused from additional mining.

This determination was critical for the agencies' authorization of the mine

expansion project, which was premised in part on the assumption that the

successful remediation of these sites would be sufficient to offset additional

4
selenium discharges associated with new mining activities without pushing the

total selenium levels over legal limits.

The majority contends that the agencies' decision that the remediation of

Pole Canyon and Panel E would adequately offset future mine-related pollution is

rational, and accepts the agencies' conclusion that these areas are the major sources

of existing selenium pollution. Maj. Op. at 5, 12. The record, however, belies

these conclusions, and indicates that Pole Canyon and Panel E are but two of the

µnown sources of existing selenium pollution.

In choosing to focus on Pole Canyon and Panel E, the Forest Service and

BLM relied on a contractor employed by Simplot to assess these sites. It

concluded that the sites were exclusively responsible for the selenium

contamination in Hoopes Spring and South Forµ Sage Creeµ Spring. The agencies

acµnowledged, however, that the contractor's conclusion was but 'one possible

interpretation' of the limited available data, and further that 'additional

investigation' would be required to determine all the 'source(s)' of existing

selenium contamination in the area. Indeed, the record before the agencies at the

time of their determination mentioned selenium contributions from at least two

other sources: Panel A and Panel D. Yet these sources were not included in the

proposed remediation plan.

5
 When agencies evaluate 'reasonably foreseeable significant adverse effects

on the human environment in an environmental impact statement,' and incomplete

information 'is essential to a reasoned choice among alternatives and the overall

costs of obtaining it are not exorbitant,' NEPA requires that that information be

obtained and included in the EIS. See 40 C.F.R. yy 1502.22, 1502.22(a). It is

undeniable that the missing information at issue here -- the extent of existing

selenium pollution at the site of a proposed mine expansion project -- 'is essential

to a reasoned choice among alternatives.' Id. Although the agencies

acµnowledged the need for 'further investigation' before all sources of selenium

contamination at Smoµy Canyon could be identified, there is no indication on the

record before this court that the costs of such investigation would be exorbitant.

The agencies' failure to obtain and include a comprehensive list of the sources of

selenium contamination at Smoµy Canyon, therefore, violates federal law. This

failing is particularly egregious given that Simplot's mining operations at Smoµy

Canyon have been subject to CERCLA response actions for over seven years.

The majority holds that, since NEPA 'only mandates an evaluation of a

proposed plan's future environmental impact,' further investigation of existing

pollution was not required. Maj. Op. at 16. This is error. Under the

circumstances of this case, any meaningful evaluation of the mine expansion

6
project's future environmental impacts requires a thorough understanding of

existing pollution in the project area. Put differently, because Simplot's prior

mining activities have so polluted Smoµy Canyon, additional mining will

necessarily exacerbate pollution in violation of state and federal environmental

standards unless significant remediation is completed before any new mining

occurs. A comprehensive understanding of existing pollution on site is a

prerequisite to any determination of where remediation efforts should begin.

Given the foregoing, the agencies' conclusion that the remediation of Pole

Canyon and Panel E will be sufficient to offset future pollution from the Smoµy

Canyon Mine expansion project is hardly a rational conclusion. Motor Vehicle

Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (To

avoid maµing an arbitrary and capricious determination, agencies 'must examine

the relevant data and articulate a satisfactory explanation for [their] action

including a 'rational connection between the facts found and the choice made.''

(quoting Burlington Trucµ Lines, Inc. v. United States, 371 U.S. 156, 168 (1962));

see also Port of Seattle v. FERC, 499 F.3d 1016, 1035 (9th Cir. 2007), cert. denied,

130 S. Ct. 1051 (2010).

B

As the majority notes, one of the experts who participated in the

7
environmental review process was Dr. Christopher Carlson, the Forest Service's

National Ground Water Program Leader. In a detailed memorandum written in

January 2007, Dr. Carlson analyzed the proposed cover system for Panels F and G.

Dr. Carlson observed that 'as the modeling effort progressed, [Simplot's]

contractor had substantial difficulty getting the selected model to execute

appropriately,' leading it to 'implement a number of short cuts and approximations

in the analyses . . . .' These shortcuts 'resulted in a cover evaluation process that

did not fully characterize or evaluate the expected cover performance, design

options, modeling assumptions and input uncertainty, or the overall uncertainty in

the predictions.' This led Dr. Carlson to conclude, on the basis of his extensive

expertise in such matters, that 'both the agencies and public are left with a limited

understanding of the expected operation of the cover system, its critical design

features, and the µey expected stressors.'

More specifically, Dr. Carlson noted that since the cover would be set 'at an

elevation of about 7500 [feet] in the northern tier of the country, the primary

environmental forcings that the cover will be expected to handle while limiting

infiltration are seasonal in nature (e.g., freeze-thaw, snowmelt, wetting-drying,

evapotranspiration).' In other words, an absolutely central question regarding the

ability of the proposed cover to function as intended involved the cover's capacity

8
to respond to seasonal variations.

Yet, as Dr. Carlson noted, 'the short cuts taµen to speed the [modeling]

process' led to an evaluation of model output on only an average annual basis. Of

the 33 inches of precipitation received each year in the area, however,

approximately 22 inches -- or two thirds -- are associated with the spring

snowmelt. A major seasonal surge is thus predictable, and relevant to the cover's

actual functioning capability. The modeling completed did not account for any

such surges. This critical shortcoming prompted Dr. Carlson to conclude 'that the

lacµ of seasonal information, when the snowmelt dominated hydrology of the area

would be most extreme, limits reviewers' ability to fully characterize the expected

conditions and develop a complete understanding of the processes liµely to be

important for both near-term and long-term cover performance.' (emphasis added)

Dr. Carlson's objections were a reiteration of concerns he had expressed in

October 2006, when he warned that an evaluation of the proposed cover design that

was based 'purely on an annual average basis when we µnow there are significant

seasonal aspects to the hydrological cycle should not be acceptable.'

Rather than confront and address these fundamental inadequacies in the

modeling completed, and instead of ordering additional modeling to obtain the

seasonal information which the Forest Service's own groundwater expert had

9
deemed critical, the agencies simply concluded that 'there is sufficient information

to implement the store and release cover system developed,' and that '[n]o further

cover modeling efforts are needed.'

The majority accepts this conclusion on the basis of the agencies' contention

that 'the annual output would remain the same even if [the] entire 0.7 inches [of

water percolating through the cover annually] seeped through during the peaµ flow

months.' Maj. Op. at 8. Yet there is no evidence in the record before this court

that the proposed cover design could handle such seasonal fluctuations, or what

would happen if all or even most of the annual output seeped through the cover in

a few short weeµs in the spring.1 Indeed, the agencies' technical review team

admitted that the lacµ of monthly output analysis 'led to uncertainty within [the

team] about the short-term accuracy' of the modeling results.2

This is, therefore, not a case involving reasonable scientific disagreements

1
The majority argues that the agencies' determination is sound since 'the
relevant variables reflecting seasonal variations were included [in the modeling]
and . . . Dr. Carlson's objections went to the time scale of the model output rather
than the input variables.' Maj. Op. at 18. This obfuscates the issue: namely, that
the model's output predictions are not trustworthy in light of the corners cut and
limitations Dr. Carlson identified.
2
Simplot's offer to test the proposed cover design further to ensure that it
performs as predicted after the mine expansion is underway is another indication
that the agencies' conclusions lacµ adequate factual bases.

10
among qualified experts. Cf. Marsh v. Or. Natural Res. Council, 490 U.S. 360,

378 (1989). Rather, this is a case in which the agency's expert raised substantial

uncertainties that were supported by scientific authority, and which the agencies

entirely failed to address in the FEIS. Under NEPA, 'federal agencies must

specifically discuss at appropriate points in the final [EIS] any responsible

opposing view which was not adequately addressed in the draft [EIS] and . . .

indicate the [agencies]'s response to the issues raised. A failure to do so is itself a

NEPA violation.' Wildwest Inst. v. Bull, 547 F.3d 1162, 1171 (9th Cir. 2008)

(citing 40 C.F.R. y 1502.9(b)) (alterations in original; quotation marµs omitted).

Rather than address Dr. Carlson's measured analysis, the defendants maµe

every effort to minimize or discredit the import of his opinions, a lead the majority

willingly follows. But Dr. Carlson is not just one person on a larger team of

experts. He is the leader of the U.S. Forest Service's National Ground Water

Program, and, as such, has deep expertise on the water pollution problems that lie

at the very heart of the mine expansion project. Moreover, the additional modeling

necessary to ascertain the seasonal viability of the proposed cover design could, by

all accounts, have been completed in as little as four to ten days. The defendants'

dismissive attitude, therefore, may reflect little more than uncertainty as to what

might surface if additional studies or investigation had been completed. The court

11
should not endorse such an aversion to finding out the truth.

The majority emphasizes that all the experts involved 'agreed that the model

effectively accounted for seasonal variation in the long-term.' Maj. Op. at 13.

This is an overstatement; there is no indication that Dr. Carlson ever found that the

modeling completed was effective in any respect. Even assuming that the

majority's characterization is accurate, however, it is irrelevant to the questions

raised on this appeal and to the court's role in evaluating the adequacy of agency

action. Even if the model effectively accounted for seasonal variation in the long-

term, this alone is insufficient, because the mine expansion project will, at most,

extend the life of the Smoµy Canyon Mine for fourteen to sixteen years. The

agencies' conclusions, and the majority's opinion, leave open the possibility that

significant environmental pollution will occur at the Smoµy Canyon Mine in the

near term. If this is not 'fail[ure] to consider an important aspect of the problem,'

what isá Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43.

C

NEPA's 'looµ before you leap' requirements dictate that agencies 'consider

every significant aspect of the environmental impact of a proposed action' before

that action is approved. Bering Strait Citizens for Responsible Res. Dev. v. U.S.

Army Corps of Engineers, 524 F.3d 938, 947 (9th Cir. 2008) (quoting Baltimore

12
Gas & Elec. Co. v. Natural Res. Defense Council, Inc., 462 U.S. 87, 97 (1983)). It

is not appropriate or acceptable 'to defer consideration of cumulative impacts to a

future date. 'NEPA requires consideration of the potential impact of an action

before the action taµes place.'' Neighbors of Cuddy Mountain v. U.S. Forest Serv.,

137 F.3d 1372, 1380 (9th Cir. 1998) (quoting City of Tenaµee Springs v. Clough,

915 F.2d 1308, 1313 (9th Cir. 1990) (emphasis in original)).

The agencies' actions here are completely contrary to these well-established

legal principles. As evident from the foregoing, the agencies did not conduct a

'previous, rigorous evaluation' of the proposed cover design via their limited

modeling. Maj. Op. at 15. The majority's contention that this modeling 'satisfied

NEPA's hard looµ requirement' is belied by the record before this court. Indeed,

the majority seems to recognize that myriad lingering questions central to a

thorough evaluation of the mine expansion project remain: 'Should the testing

reveal significant inadequacies or miscalculations in the modeling,' the majority

asserts, 'the agencies presumably are authorized to, and will require Simplot to,

taµe corrective action.' Id.

It is telling that no legal authority is cited for this procedure. The majority's

approval is especially troubling given that the proposed expansion might extend

the life of the mine for another fourteen to sixteen years, a time period in which the

13
full extent of new pollution caused may not even register.3 When the effects from

the expansion become clear, Simplot may be 'long gone' -- leaving selenium-

contaminated waterways responsible for abnormalities in aquatic life, dead

livestocµ, and other destructive consequences in its waµe.

III

The environmental harm that will result from expanded mining in Smoµy

Canyon can only be prevented with careful, reasoned evaluations that account for

detailed scientific opinions and tailor remedial steps in light of those opinions. The

majority's willingness to accept the flawed and incomplete assessments of the

agencies in this case amounts to an abdication of the judicial function. We should

hold that the record before this court reveals significant omissions and woefully

inadequate assessments of µnown and unµnown problems associated with the

proposed cover design; that, absent a comprehensive assessment of existing

sources of selenium pollution in the Smoµy Canyon area, the remediation efforts

necessary to clean up existing pollution Simplot has already created cannot

proceed; and that the agencies' decision to approve the mine expansion project in

light of these deficiencies is arbitrary and capricious and in violation of federal

3
The agencies concede that it taµes ten years for new selenium pollution to
register, and for remediation efforts to show any results.

14
environmental law.

I dissent.

15