FILED
NOT FOR PUBLICATION
FEB 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHERN PLAINS RESOURCE No. 16-35447
COUNCIL, INC.,
D.C. No. 1:14-cv-00060-SPW
Plaintiff-Appellant,
v. MEMORANDUM*
U.S. BUREAU OF LAND
MANAGEMENT and U.S.
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,
SIGNAL PEAK ENERGY, LLC,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted December 4, 2017
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: LEAVY and CHRISTEN, Circuit Judges, and KOBAYASHI,** District
Judge.
Northern Plains Resource Council, Inc. (“plaintiff”) appeals the district
court’s grant of summary judgment in its action challenging a decision by the U.S.
Bureau of Land Management and U.S. Department of the Interior (“BLM”) to
lease coal located in Montana’s Bull Mountains to defendant-intervenor Signal
Peak Energy, LLC. Plaintiff alleges that the BLM did not comply with the
National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370d, when it
analyzed the potential environmental impacts of the coal lease in its Environmental
Assessment (“EA”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s grant of summary judgment, Envtl.
Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1008 (9th Cir. 2006) (“EPIC”).
Judicial review of an agency's compliance with NEPA is governed by the
Administrative Procedures Act, 5 U.S.C. §§ 701–06; Klamath Siskiyou Wildlands
Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir. 2006). Agency decisions may be set
aside only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Id. (some citations omitted) (quoting 5 U.S.C. §
706(2)(A)). “Agency action is valid if the agency considered the relevant factors
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
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and articulated a rational connection between the facts found and the choices
made.” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010) (internal
quotation marks omitted).
1. Plaintiff contends that the BLM’s cumulative-impacts analysis violated
NEPA by failing to address reasonably foreseeable mining in the “mirror-image”
mine to the north of the existing mine area. We reject this contention because the
BLM reasonably determined that hypothetical future mining activity contemplated
to the north is not currently a reasonably foreseeable future action. See League of
Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752
F.3d 755, 762 (9th Cir. 2014) (“Although ‘projects need not be finalized before
they are reasonably foreseeable,’ they must be more than merely ‘contemplated.’”
(internal citations omitted)); 36 C.F.R. § 220.3 (Definitions) (“Reasonably
foreseeable future actions. Those Federal or non-Federal activities not yet
undertaken, for which there are existing decisions, funding, or identified
proposals.”). Here, future mining activity to the north was a “remote and highly
speculative consequence[]” that did not warrant analysis in the EA. See Ground
Zero Ctr. for Non–Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082, 1090 (9th
Cir. 2004). The scope, magnitude, and time frame for future mining in the north
have not been proposed or outlined. See League of Wilderness Defenders, 752
3 16-35447
F.3d at 762. Because additional mining has not been proposed, “a cumulative
effects analysis would be both speculative and premature.” See Jones v. Nat’l
Marine Fisheries Serv., 741 F.3d 989, 1000 (9th Cir. 2013) (quoting Lands
Council v. Powell, 395 F.3d 1019, 1023 (9th Cir. 2005)). Accordingly, the district
court properly granted summary judgment on this issue.
2. The BLM did not improperly “tier” its analysis to a 1990 Environmental
Impact Statement (EIS). Federal regulations allow “tiering,” or incorporation by
reference, the general discussions in a previous EIS that pertain to issues specific to
a subsequent analysis. See 40 C.F.R. § 1508.28. Agencies may also tier “[f]rom
an [EIS] on a specific action at an early stage” to a subsequent analysis at a later
stage. 40 C.F.R. § 1508.28(b). Here, the BLM reasonably referenced analysis
from its 1990 EIS to supplement and facilitate its analysis of the environmental
effects of continued mining associated with its leasing decision. See Kern v. U.S.
Bureau of Land Mgmt., 284 F.3d 1062, 1073 (9th Cir. 2002) (tiering is encouraged
to avoid repetitive discussions of issues previously included in another EIS).
Plaintiff also contends that tiering was improper because the 1990 EIS data is too
“stale” to be reliable. But plaintiff fails to point to any evidence, other than age,
suggesting the unreliability of the 1990 data. The age of data, without more, is not
dispositive as to reliability. See Theodore Roosevelt Conservation P’ship v.
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Salazar, 616 F.3d 497, 512 (D.C. Cir. 2010) (“NEPA does not limit tiering to
analyses still on the scientific cutting edge.”). Accordingly, the district court
properly granted summary judgment on this issue.
3. Plaintiff contends that the BLM failed to take the requisite “hard look” at
the mining impacts upon the relevant topography and water resources. We
disagree because the EA contained an extensive discussion of the anticipated
effects that further mining would have on the area’s topography and water
resources, including the ground and surface water quality, the hydrolic impacts of
groundwater, and the effects of mining operations on area springs. Because the
BLM adequately considered the effects upon the affected topography and water
resources, its decision was “fully informed and well-considered,” and is entitled to
judicial deference. See Blue Mountains Biodiversity Project v. Blackwood, 161
F.3d 1208, 1211 (9th Cir. 1998).
4. Plaintiff contends that the BLM’s significant impacts analysis was
improper because it relied on mitigation measures that minimized the impacts on
surface and water resources. Although the BLM acknowledged the existence of
some surface effects from subsistence, the BLM reasonably concluded that the
overall surface effects from subsidence would be minor in the short term and
negligible in the long term. The BLM noted that Signal Peak’s current mining
5 16-35447
permit required Signal Peak to mitigate short and long-term hydrologic and
wetland impacts. The BLM did not rely on any mitigation measures in its analysis
to the extent that an EIS would be required, and its reasoned decision is consistent
with its NEPA obligations. See Protect Our Communities Found. v. Jewell, 825
F.3d 571, 578, 583-85 (9th Cir. 2016).
AFFIRMED.1
1
The motion authorizing withdrawal as co-counsel for Signal Peak in this
appeal, filed by Robert L. Burns, Jr., Daniel C. Garfinkel, and the law firm of
Buchanan Ingersoll & Rooney PC, is granted.
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