Ctr. for Biological Diversity v. Usfws

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL No. 19-17585
DIVERSITY; SAVE THE SCENIC
SANTA RITAS; ARIZONA MINING D.C. Nos.
REFORM COALITION; GRAND 4:17-cv-00475-JAS
CANYON CHAPTER OF THE 4:17-cv-00576-JAS
SIERRA CLUB; TOHONO 4:18-cv-00189-JAS
O’ODHAM NATION; HOPI TRIBE;
PASCUA YAQUI TRIBE OF
ARIZONA, named as Pascua
Yaqui Tribe,
Plaintiffs-Appellees,

v.

UNITED STATES FISH AND
WILDLIFE SERVICE; UNITED
STATES FOREST SERVICE;
UNITED STATES OF AMERICA;
KURT DAVIS, Acting Supervisor
of the Coronado National Forest;
CALVIN JOYNER, Regional
Forester; RANDY MOORE, Chief
of the U.S. Forest Service;
THOMAS J. VILSACK, U.S.
Secretary of Agriculture,
Defendants-Appellants,

and
2 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

ROSEMONT COPPER COMPANY,
Intervenor-Defendant.

CENTER FOR BIOLOGICAL No. 19-17586
DIVERSITY; SAVE THE SCENIC
SANTA RITAS; ARIZONA MINING D.C. Nos.
REFORM COALITION; GRAND 4:17-cv-00475-JAS
CANYON CHAPTER OF THE 4:17-cv-00576-JAS
SIERRA CLUB; TOHONO 4:18-cv-00189-JAS
O’ODHAM NATION; HOPI TRIBE;
PASCUA YAQUI TRIBE OF
ARIZONA, named as Pascua OPINION
Yaqui Tribe,
Plaintiffs-Appellees,

v.

UNITED STATES FISH AND
WILDLIFE SERVICE; UNITED
STATES FOREST SERVICE;
UNITED STATES OF AMERICA;
KURT DAVIS, Acting Supervisor
of the Coronado National Forest;
CALVIN JOYNER, Regional
Forester; RANDY MOORE, Chief
of the U.S. Forest Service;
THOMAS J. VILSACK, U.S.
Secretary of Agriculture,
Defendants,

and
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 3

ROSEMONT COPPER COMPANY,
Intervenor-Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding

Argued and Submitted February 1, 2021
Phoenix, Arizona

Filed May 12, 2022

Before: William A. Fletcher, Eric D. Miller, and
Danielle J. Forrest, Circuit Judges.

Opinion by Judge W. Fletcher;
Dissent by Judge Forrest
4 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

SUMMARY*

Mining Law

The panel affirmed the district court’s judgment that the
U.S. Fish and Wildlife Service acted arbitrarily and
capriciously in approving the entirety of Rosemont Copper
Company’s mining plan of operations (“MPO”) in its Final
Environmental Statement and Record of Decision.

Rosemont seeks to dig a large open-pit copper mine in the
Santa Rita mountains south of Tucson, Arizona. Rosemont
owns valid mining rights on the National Forest land where
it would dig its proposed pit mine. The Mining Law of 1872
allows mining companies to occupy federal land on which
valuable minerals have been found, as well as non-mineral
federal land for mill sites, essentially free of charge. The
Service has promulgated regulations that govern surface uses
of forest land relating to mining. 36 C.F.R. Part 228, Subpart
A. Rosemont asked the Forest Service to authorize it to
permanently occupy with its waste rock 2,447 acres of
additional National Forest land on which it does not have
valid mining rights.

The Service approved the MPO on two separate grounds.
First, the Service concluded that Section 612 of the Surface
Resources and Multiple Use Act of 1955 gave Rosemont the
right to dump its waste rock on open National Forest land,
without regard to whether it has any mining rights on that
land. Second, the Service assumed that under the Mining

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 5

Law, Rosemont had valid mining claims on the 2,447 acres
it proposed to occupy with its waste rock. The district court
held that neither ground supported the Service’s approval of
Rosemont’s MPO.

The panel agreed with the district court’s holding that
Section 612 of the Multiple Use Act granted no rights beyond
those granted by the Mining Law. In fact, the Government
abandoned on appeal any argument that Section 612
supported the Service’s decision. The panel also agreed with
the district court’s holding that the Service had no basis for
assuming that Rosemont’s mining claims were valid under
the Mining Law. For different reasons, the panel also agreed
with the district court’s holding that the claims were invalid.
The panel held that the claims were invalid because no
valuable minerals had been found on the claims. The panel
remanded to the Service for further proceedings as it deems
important, informed by the Government’s concession that
Section 612 grants no rights beyond those granted by the
Mining Law, and by the panel’s holding that Rosemont’s
mining claims on the 2,447 acres were invalid under the
Mining Law. The panel noted that it did not know whether
the Service would have decided that Part 228A regulations
were applicable to Rosemont’s proposal to occupy invalid
claims with its waste rock, and, if applicable, whether the
Service would have construed those regulations to allow such
occupancy. These are decisions that must be made in the first
instance by the Service.

Dissenting, Judge Forrest would hold that the regulations
that the Service adopted to fill in the gaps left by the Mining
Law established that: (1) the lawfulness of waste-rock
disposal did not depend on whether the mine operator had
valid mining claims to the disposal area; and (2) it was not
6 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

arbitrary and capricious for the Service to apply the Part
228A regulations to Rosemont’s proposed deposit of waste
rock because on their express terms they applied to this
activity as a matter of law. She would reverse and remand for
the district court to assess the Service’s decision under Part
228A.

COUNSEL

Amelia G. Yowell (argued), Andrew C. Mergen, Andrew A.
Smith, and Sommer H. Engels, Attorneys; Eric Grant, Deputy
Assistant Attorney General; Jonathan D. Brightbill, Principal
Deputy Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Stephen A. Vaden, General Counsel,
United States Department of Agriculture; Washington, D.C.;
for Defendants-Appellants.

Julian W. Poon (argued), Theodore J. Boutrous Jr., Bradley
J. Hamburger, and Virginia L. Smith, Gibson Dunn &
Crutcher LLP, Los Angeles, California; Katherine C. Yarger,
Gibson Dunn & Crutcher LLP, Denver, Colorado; Norman D.
James, Fennemore Craig P.C., Phoenix, Arizona; for
Intervenor-Defendant-Appellant.

Heidi McIntosh (argued), Stuart Gillespie, and Caitlin Miller,
Earthjustice, Denver, Colorado, for Plaintiffs-Appellees
Tohono O’odham Nation, Hopi Tribe, and Pascua Yaqui
Tribe.

Roger Flynn (argued) and Jeffrey C. Parsons, Western
Mining Action Project, Lyons, Colorado; Marc D. Fink,
Center for Biological Diversity, Duluth, Minnesota; Allison
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 7

N. Melton, Center for Biological Diversity, Crested Butte,
Colorado; for Plaintiffs-Appellees Center for Biological
Diversity, Save the Scenic Santa Ritas, Arizona Mining
Reform Coalition, and Grand Canyon Chapter of the Sierra
Club.

Ronald W. Opsahl, Opsahl Law Office LLC, Lakewood,
Colorado, for Amicus Curiae Southern Arizona Business
Coalition.

R. Timothy McCrum and Elizabeth B. Dawson, Crowell &
Moring LLP, Washington, D.C.; Katie Sweeney, Executive
Vice President and General Counsel, National Mining
Association, Washington, D.C.; for Amici Curiae National
Mining Association (including Member State Mining
Associations) and Chamber of Commerce of the United
States of America.

Alison C. Hunter, Holland & Hart LLP, Boise, Idaho; Laura
K. Granier, Holland & Hart LLP, Reno, Nevada; for Amicus
Curiae American Exploration and Mining Association.

Matthew N. Newman, Native American Rights Fund,
Anchorage, Alaska; David L. Gover, Native American Rights
Fund, Boulder, Colorado; Joel West Williams, Native
American Rights Fund, Washington, D.C.; for Amicus Curiae
National Congress of American Indians, Inter-Tribal
Association of Arizona, Association of American Indian
Affairs, and Two Federally Recognized Tribal Nations.

Derrick Beetso, National Congress of American Indians,
Washington, D.C., for Amicus Curiae National Congress of
American Indians.
8 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

Lori Potter and Sarah C. Judkins, Kaplan Kirsch & Rockwell
LLP, Denver, Colorado, for Amici Curiae Law Professors.

Regina L. Nassen and Victoria Buchinger, Deputy County
Attorneys, Civil Division, Pima County Attorney’s Office,
Tucson, Arizona, for Amici Curiae Pima County and Pima
County Regional Flood Control District.

OPINION

W. FLETCHER, Circuit Judge:

Rosemont Copper Company seeks to dig a large open-pit
copper mine in the Santa Rita Mountains just south of
Tucson, Arizona. The proposed mining operation would be
partly within the boundaries of the Coronado National Forest.
The pit would be 3,000 feet deep and 6,500 feet wide, and
would produce over five billion pounds of copper. No one
disputes that Rosemont has valid mining rights on the land
where the pit would be located.

Pit mining produces large amounts of waste rock.
Rosemont proposes to dump 1.9 billion tons of waste rock
near its pit, on 2,447 acres of National Forest land. The pit
itself will occupy just over 950 acres. When operations cease
after twenty to twenty-five years, waste rock on the 2,447
acres would be 700 feet deep and would occupy the land in
perpetuity.

The United States Forest Service (“the Service”)
approved Rosemont’s mining plan of operations (“MPO”) on
two separate grounds. First, the Service concluded that
Section 612 of the Surface Resources and Multiple Use Act
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 9

of 1955 (“Multiple Use Act”) gives Rosemont the right to
dump its waste rock on open National Forest land, without
regard to whether it has any mining rights on that land, as a
“use[] reasonably incident” to its operations at the mine pit.
Second, the Service assumed that under the Mining Law of
1872 (“Mining Law”) Rosemont has valid mining claims on
the 2,447 acres it proposes to occupy with its waste rock.
Based on that assumption, the Service concluded that
Rosemont has the right to occupy those claims.

Relying on these two grounds, the Service approved
Rosemont’s MPO, concluding under Section 612 of the
Multiple Use Act and under the Mining Act that it had only
the authority contained in its Part 228A regulations to
regulate Rosemont’s proposal to occupy its mining claims
with its waste rock. The Service suggested that if it had
greater regulatory authority than that provided by its Part
228A regulations, it might not have approved the MPO in its
current form.

The district court held that neither ground supports the
Forest Service’s approval of Rosemont’s MPO. It held that
Section 612 grants no rights beyond those granted by the
Mining Law. It further held that there is no basis for the
Service’s assumption that Rosemont’s mining claims are
valid under the Mining Law. Indeed, based on a conclusion
that there are no valuable minerals on the claims, the court
held that the claims are actually invalid. The district court
therefore concluded that the Service acted arbitrarily and
capriciously in approving the entirety of Rosemont’s MPO in
its Final Environmental Impact Statement (“FEIS”) and
Record of Decision (“ROD”).
10 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

We affirm the district court. We agree with its holding
that Section 612 grants no rights beyond those granted by the
Mining Law. Indeed, the Government has abandoned on
appeal any argument that Section 612 supports the Service’s
decision. We also agree with its holding that the Service had
no basis for assuming that Rosemont’s mining claims are
valid under the Mining Law. Although our reasoning differs
slightly from that of the district court, we also agree with the
court’s holding that the claims are invalid. We do not rely, as
the district court did, on a conclusion that no valuable
minerals exist on the claims. Rather, we hold that the claims
are invalid because no valuable minerals have been found on
the claims.

We do not know what the Service would have done if it
had understood that Section 612 grants no rights beyond
those granted by the Mining Law and that Rosemont’s mining
claims are invalid under the Mining Law. In particular, we
do not know whether the Service would have decided that
Part 228A regulations are applicable to Rosemont’s proposal
to occupy invalid claims with its waste rock, and, if
applicable, whether the Service would have construed those
regulations to allow such occupancy. These are decisions that
must be made in the first instance by the Service rather than
by our court. We therefore remand to the Service for such
further proceedings as it deems appropriate, informed by the
Government’s concession that Section 612 grants no rights
beyond those granted by the Mining Law, and by our holding
that Rosemont’s mining claims on the 2,447 acres are invalid
under the Mining Law.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 11

I. Statutes and Associated Regulations

We begin with a brief summary of the interlocking
statutes and regulations relevant to this appeal.

(A) The Mining Law of 1872: The Mining Law of 1872
(the “Mining Law”) gives to United States citizens free of
charge, except for small filing and other fees, mining rights
upon discovery of “valuable minerals” on federal land. See
Mining Law of 1872, ch. 152, 17 Stat. 91 (codified as
amended at 30 U.S.C. §§ 21 to 54). When first enacted, the
Mining Law was exceedingly broad, encompassing almost all
federal land in the American West, and encompassing a wide
range of valuable minerals.

In succeeding years, the scope of the Mining Law has
been substantially reduced. First, Congress, the President,
and the Department of the Interior have withdrawn many
areas of federal land from availability under the Mining Law.
See, e.g., Act of March 1, 1872, ch. 24, § 1, 17 Stat. 32
(codified at 16 U.S.C. § 21) (withdrawing Yellowstone
National Park); United States v. Midwest Oil Co., 236 U.S.
459, 480–81 (1915) (upholding President Taft’s withdrawal
of three million acres for petroleum extraction); Nat’l Mining
Ass’n v. Zinke, 877 F.3d 845, 866–70 (9th Cir. 2017)
(upholding the Department of the Interior’s withdrawal of one
million acres for uranium mining). Second, Congress has
declared that some mineral deposits are not “valuable mineral
deposits” within the meaning of the Mining Law. See, e.g.,
Surface Resources and Multiple Use Act of 1955, ch. 375,
§ 3, 69 Stat. 368 (codified at 30 U.S.C. § 611) (sand, gravel,
and pumice are not valuable minerals under the Mining Law).
Third, later statutes—particularly environmental laws such as
the National Environmental Policy Act (“NEPA”) and the
12 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

Endangered Species Act (“ESA”)—have restricted the
manner in which miners with valid claims under the Mining
Law can perform their mining operations. See John Leshy,
The Mining Law: A Study in Perpetual Motion 25–48 (1987).

However, 150 years after its enactment, the Mining Law
remains in effect for much federal land and for many
minerals, including copper. Within the scope of its operation,
the Mining Law continues to be a source of
wealth—sometimes great wealth—for those who discover
valuable minerals on federal land.

The Mining Law grants, nearly free of charge, two kinds
of legal interests on federal land: (1) mining claims and
(2) mill sites.

(1) Mining claims: The Mining Law allows United States
citizens to prospect for valuable minerals on federal land. A
miner who finds valuable minerals may “locate” (or “stake”)
a claim and thereby obtain an “unpatented mining claim.”
30 U.S.C. § 22. A valid unpatented claim gives the miner the
right to “occupy” the claim and to mine the minerals free of
charge. Until 1994, a miner could “patent” a claim, thereby
obtaining ownership of the surface area as well as the mineral
rights. See R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061,
1064 (9th Cir. 1997). We are concerned here only with
unpatented mining claims. For ease of reading, we refer to
Rosemont’s upatented mining claims at issue in this case
simply as “mining claims.”

Section 22 of the Mining Law provides that public land
shall be “free and open” for citizens to “explor[e]” for
“valuable mineral deposits.” 30 U.S.C. § 22. Section 22 also
allows a citizen to occupy land temporarily while prospecting
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 13

for valuable minerals. See Union Oil Co. of Cal. v. Smith,
249 U.S. 337, 346 (1919) (“[A]s a practical matter,
exploration must precede the discovery of minerals, and some
occupation of the land ordinarily is necessary for adequate
and systematic exploration.”). A “valuable mineral deposit”
is “mineral [that] can be ‘extracted, removed and marketed at
a profit.’” United States v. Coleman, 390 U.S. 599, 600
(1968). If a valuable mineral deposit has been discovered on
a claim, a miner may occupy the claim for mining purposes.
In the absence of a discovery of a valuable mineral deposit,
Section 22 gives a miner no right to occupy the claim beyond
the temporary occupancy necessary for exploration.

Once a miner discovers a valuable mineral deposit,
Sections 23 and 26 of the Mining Law allow the miner to
“locate” “unpatented mining claims” on that land. See
30 U.S.C. § 23 (“[N]o location of a mining claim shall be
made until the discovery of the vein or lode within the limits
of the claim located.”); id. § 26 (conferring on a successful
locator “the exclusive right of possession and enjoyment” of
the surface and the minerals underneath). As a practical
matter, a miner is allowed to locate an unpatented claim
before discovering valuable minerals. But the claim is
invalid and confers no right without a “discovery” of
“valuable minerals” on the claim. See Cole v. Ralph, 252
U.S. 286, 296 (1920) (mere location of the mining claim
“confers no right in the absence of discovery”). The validity
of a claim cannot be established by a discovery of valuable
minerals nearby. See Waskey v. Hammer, 223 U.S. 85, 91
(1912) (“A discovery without the limits of the claim, no
matter what its proximity, does not suffice.”).

If a mining claim is invalid, a miner has no right,
possessory or otherwise, in connection with the land.
14 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

Cameron v. United States, 252 U.S. 450, 460 (1920) (stating
that “no right arises from an invalid claim of any kind”
because the contrary holding would “work an unlawful
private appropriation in derogation of the rights of the
public”); accord Best v. Humboldt Placer Mining Co.,
371 U.S. 334, 337 (1963). The rule that discovery is “a
prerequisite to the location of a claim” is designed to “prevent
the location of land not found to be mineral.” Waskey,
223 U.S. at 90–91. The Bureau of Land Management
(“BLM”), within the Department of the Interior, has the
authority to make final determinations, through adjudicative
proceedings, whether valuable minerals have been found on
a mining claim and, thus, whether the claim is valid. See
Best, 371 U.S. at 336; Clouser v. Espy, 42 F.3d 1522, 1525
(9th Cir. 1994).

(2) Mill sites: The Mining Law allows the owner of a
valid mining claim on land containing valuable minerals to
obtain possessory rights to other land for use as a “mill site.”
Mill-site land is “nonmineral land not contiguous to the vein
or lode [that] is used or occupied by the proprietor . . . for
mining or milling purposes.” 30 U.S.C. § 42(a). That is, land
under a mill site need not contain valuable minerals. Under
BLM regulations, valid uses of a mill site include “[t]ailings
ponds and leach pads,” “[r]ock and soil dumps,” and “[a]ny
other use that is reasonably incident to mine development and
operation.” 43 C.F.R. § 3832.34(a)(3), (a)(4), (a)(6). Though
the Mining Law limits individual mill sites to five acres,
current regulations, unchallenged in this suit, allow owners of
mining claims to stake multiple mill sites if “reasonably
necessary” for their mining operations. Id. § 3832.32.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 15

(B) Later federal statutes:

(1) The Organic Act of 1897: The Organic Act of 1897
(the “Organic Act”) requires the Service to “protect[] against
. . . depredations upon the public forests and national forests.”
16 U.S.C. § 551. The Organic Act allows the continuation of
mining activities authorized by federal mining laws,
including the Mining Law: “[A]ny mineral lands in any
national forest . . . subject to entry under the existing mining
laws . . . shall continue to be subject to such location and
entry. . . .” Id. § 482. The Organic Act does not “prohibit
any person from entering upon such national forests for all
proper and lawful purposes, including that of prospecting,
locating, and developing the mineral resources thereof.” Id.
§ 478.

(2) The Surface Resources and Multiple Use Act of 1955:
The Surface Resources and Multiple Use Act of 1955 (the
“Multiple Use Act”) limits rights granted under the Mining
Law. See Converse v. Udall, 399 F.2d 616, 617–18 (9th Cir.
1968). First, the Multiple Use Act forbids use of an
unpatented mining claim by a claim owner “for any purposes
other than prospecting, mining or processing operations and
uses reasonably incident thereto.” 30 U.S.C. § 612(a)
(emphasis added). For example, mining claim owners have
no right under the Mining Law to use their claims for non-
mining purposes such as timber harvesting or recreational
fishing. United States v. Shumway, 199 F.3d 1093, 1101 (9th
Cir. 1999). Second, the Multiple Use Act authorizes non-
mining activities by third parties on the surface of mining
claims, provided those activities do not “endanger or
materially interfere with . . . mining or processing operations
or uses reasonably incident thereto.” 30 U.S.C. § 612(b).
Section 612 of the Act does not expand the rights of owners
16 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

of mining claims. To the extent it effects any change, Section
612 reduces those rights by forbidding an owner from using
the claim for non-mining purposes and by making the
owner’s surface rights non-exclusive.

(C) Regulations:

(1) Part 228A: In 1974, the Forest Service promulgated
Part 228A regulations under the Organic Act to implement
the Mining Law. See National Forests Surface Use Under
U.S. Mining Laws, 39 Fed. Reg. 31,317 (Aug. 28, 1974).
Part 228A regulations apply to uses of National Forest lands
“in connection with operations authorized by the United
States mining laws (30 U.S.C. 21–54).” 36 C.F.R. § 228.1
(emphasis added). Part 228A regulations require the owner
of a valid mining claim to submit a mining plan of operations
(“MPO”) for approval by the Service whenever any mining
operation is “likely [to] cause significant disturbance of
surface resources.” Id. § 228.4(a)(4). Operations are defined
to include “[a]ll functions, work, and activities in connection
with . . . mining . . . regardless of whether said operations
take place on or off mining claims.” Id. § 228.3(a).

(2) Part 251: In 1980, the Forest Service promulgated
Part 251 Special Use regulations under its Organic Act. See
National Forest System Land; Special Uses, 45 Fed. Reg.
38,324 (June 6, 1980). Part 251 regulations apply to uses of
National Forest land that is not encumbered by mining
claims. See 36 C.F.R. § 251.50(a) (“Scope. All uses of
National Forest System lands, improvements, and resources,
except those authorized by the regulations governing . . .
minerals (part 228) . . . .”). They are more protective of the
environment than Part 228A regulations and generally do not
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 17

permit uses that “involve disposal of solid waste or . . .
hazardous substances.” 36 C.F.R. § 251.54(e)(1)(ix).

II. Background

A. The Proposed Rosemont Mine

In 2007, Rosemont submitted a preliminary MPO for a
proposed open-pit copper mine, located partly in the
Coronado National Forest. As eventually approved by the
Service, the proposed pit would be 3,000 feet deep and 6,500
feet in diameter, and would cover 955 acres. The pit itself
would be entirely on land on which Rosemont has undisputed
mining claims. Conrad E. Huss et al., NI 43-101 Technical
Report Updated Feasibility Study, Rosemont Copper Project:
Environmental Impact Statement, 20 (Aug. 28, 2012),
https://www.rosemonteis.us/sites/default/files/references/0
18958.pdf. Active mining would last between twenty and
twenty-five years. The proposed mine would produce
5.88 billion pounds of copper, 194 million pounds of
molybdenum, and 80 million ounces of silver.

The proposed mine would also produce 1.25 billion tons
of waste rock and 660 million tons of tailings. “Waste rock”
is rock that contains either no valuable minerals or minerals
that would not be economical to remove. “Tailings” are
rocks that remain after valuable minerals have been extracted.
(For ease of reading, we refer to waste rock and tailings
collectively as “waste rock.”) Rosemont proposes to dump
1.9 billion tons of waste rock onto 2,447 acres of nearby
National Forest land on which it has mining claims, to an
average depth of 700 feet. Undisputed evidence in the
administrative record shows that no valuable minerals have
18 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

been found on the mining claims that Rosemont proposes to
occupy with its waste rock.

The Service issued a Draft Environmental Impact
Statement (“DEIS”) in 2011. The Service evaluated six
alternatives, including Rosemont’s proposed plan as well as
one no-action alternative. The five action alternatives do “not
differ significantly” in the “extent of the mineral deposit to be
mined; location and size of the pit; . . . transport of ore, waste
rock, and tailings; [and the] general plant site and support
facility locations.” Each of the five action alternatives would
allow Rosemont to occupy between 2,400 and 2,900 acres of
its mining claims with its waste rock. Because all five action
alternatives are inconsistent with the Coronado National
Forest Land and Resource Management Plan (“Forest Plan”),
promulgated in 1986 under the National Forest Management
Act of 1976, the Service concluded that the Forest Plan would
need to be amended if one of the action alternatives were
approved. See 16 U.S.C. § 1604(f)(4).

In the Final Environmental Impact Statement (“FEIS”),
released in December 2013 at the same time as the draft
record of decision, the Service selected the “Barrel
Alternative,” one of the five action alternatives. In June
2017, the Service issued a Record of Decision (“ROD”)
adopting the FEIS and approving Rosemont’s MPO with
minor modifications.

B. The Service’s Rationales

In its FEIS and ROD, the Forest Service relied on two
grounds to support its approval of Rosemont’s plan to dump
1.9 billion tons of waste rock on 2,447 acres of National
Forest land. In the FEIS, the Service either assumed that
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 19

Rosemont’s mining claims on that land were valid or (what
amounted to the same thing) did not inquire into the validity
of the claims. Based on its assumption that the mining claims
were valid, the Service concluded that Rosemont’s permanent
occupation of the claims with its waste rock was permitted
under the Mining Law. In the ROD, the Service concluded
that Section 612 of the Multiple Use Act authorized
Rosemont to dump its waste rock on its mining claims,
whether or not the claims were valid, because the dumping
would be a “use[] reasonably incident” to its mining
operations.

In the FEIS, the Service assumed that Rosemont’s mining
claims were valid, characterizing them as conferring a
“possessory interest.” Valid claims confer a possessory
interest; invalid claims do not. See Cameron, 252 U.S. at
460; Humboldt Placer Mining Co., 371 U.S. at 337. Because,
in the view of the Service, Rosemont’s claims were valid,
Part 228A regulations were the only source of its regulatory
authority over Rosemont’s proposed MPO. The Forest
Service wrote in the FEIS:

Rosemont Copper owns private mineral rights
and has a possessory interest for mining
purposes in unpatented mining claims on the
land where the project is proposed.
Therefore, the company has a legal right to
access minerals associated with their claims.
Furthermore, the Forest Service is required to
consider all proposals that meet the
requirements under 36 CFR 228 Subpart A.
Forest Service regulation and policy is to
allow reasonably incidental mineral
operations on claims in a manner that
20 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

minimizes adverse environmental impacts on
NFS surface resources by imposing
reasonable conditions that do not materially
interfere with mineral operations (36 CFR
Part 228 Subpart A and FSM 2800).

(Emphases added.)

Another part of the FEIS indicates that the Service
believed that Part 228A regulations require the Service to
allow Rosemont to dump its waste rock either on or off its
mining claims, so long as the dumping is “connected to
mining and mineral processing.” In responding to a comment
during the NEPA review process asking about compliance
with the Mining Law, the Service wrote briefly:

The placement of waste rock and mill tailings
on the Forest are considered to be activities
connected to mining and mineral processing
as per 36 C.F.R. 228 subpart A, and as such
they are authorized activities regardless of
whether they are on or off mining claims.

(Emphases added.) The Service did not explicitly invoke
Section 612 of the Multiple Use Act in support of its response
in the FEIS, but its reliance on Section 612 in the ROD (see
the paragraph below) provides such support.

In the ROD approving the recommendation of the FEIS,
the Coronado National Forest Supervisor relied on
Section 612. The Forest Supervisor recognized the
environmental harm that Rosemont’s mining operations
would cause, but concluded that the Service’s authority to
regulate Rosemont’s operations was limited to its authority
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 21

under the Part 228A regulations. According to the Service,
Section 612 gave Rosemont, as the owner of undisputed
mining claims where its pit would be located, the right to
conduct mining operations and all “uses reasonably incident
thereto” on the surface of its mining claims elsewhere. See
30 U.S.C. § 612(a), (b) (referring to mining operations and to
“uses reasonably incident thereto”).

The Forest Supervisor wrote in his ROD:

I recognize that each of the action alternatives
would result in significant environmental and
social impacts and that the no action
alternative is the environmentally preferable
alternative . . . . However, Federal law
provides the right for a proponent to develop
the mineral resources it owns and to use the
surface of its unpatented mining claims for
mining and processing operations and
reasonably incidental uses (see 30 U.S.C.
612). Pursuant to Federal law, the Forest
Service may reasonably regulate the use of the
surface estate to minimize impacts to Forest
Service surface resources (see 30 U.S.C. 612
and 36 CFR 228.1). The analysis that is
disclosed in the Rosemont Copper Project
FEIS concludes that the Barrel Alternative is
the alternative that best achieves the
minimization of impacts to Forest Service
surface resources while allowing mineral
operations and all uses reasonably incident
thereto.

(Emphases added.)
22 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

C. This Litigation

After the Forest Service issued the ROD, Save the Scenic
Santa Ritas, Arizona Mining Reform Coalition, Center for
Biological Diversity, and the Grand Canyon Chapter of the
Sierra Club sued the Forest Service, several Forest Service
officials, and the United States. In a separate suit, the Tohono
O’odham Nation, Pascua Yaqui Tribe, and Hopi Tribe sued
virtually the same parties, along with the Secretary of
Agriculture. Both suits alleged violations of the Mining Law
of 1872, the Organic Act of 1897, the National
Environmental Policy Act (“NEPA”), and the Administrative
Procedure Act (“APA”). The Center for Biological Diversity
filed another suit based on the Endangered Species Act
(“ESA”). Rosemont intervened as a defendant in all three
suits. The suits were consolidated before District Judge Soto
in the District of Arizona.

The Government’s primary argument in the district court
was based on Section 612 of the Multiple Use Act, upon
which the Service had explicitly relied in its ROD and on
which it had implicitly relied in its comment response in the
FEIS. The Government argued that Section 612 gives
Rosemont the right to dump its waste rock on its mining
claims, whether or not those claims are valid. The
Government argued in the district court: “The use of these
lands for waste rock and tailings operations was based on
these necessary operations being ‘reasonably incident’ to
Rosemont’s mining operations. See 30 U.S.C. § 612(a).”
Federal Defendants’ Motion and Memorandum in Support of
Motion for Summary Judgment at 17, Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 409 F. Supp. 3d 738
(D. Ariz. 2019) (No. 4:17-cv-00475). Relying on the
statutory authority supposedly provided by Section 612, the
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 23

Government argued in its brief to the district court that Part
228A regulations support the Service’s decision to approve
the MPO:

The Forest Service’s Part 228, Subpart A
mining regulations apply to “operations . . .
conducted under the United States mining
laws of May 10, 1872, as amended (30 U.S.C.
§ 22 et seq.).” These regulations define
“operations” as “[a]ll functions, work, and
activities in connection with prospecting,
exploration, development, mining or
processing of mineral resources and all uses
reasonably incident thereto, . . . regardless of
whether said operations take place on or off
mining claims.” Id. § 228.3(a) (emphasis
added).

Id.

In a back-up argument in the district court, the
Government denied that the Service had assumed in the FEIS
that Rosemont’s mining claims were valid (despite the
Service having characterized the claims as conferring a
“possessory” interest). Id. at 21. Conceding for the sake of
argument that validity of the claims was necessary, the
Government argued that a “determination” of validity was not
required. According to the Government, “[N]othing in the
Mining Law requires the Forest Service to regulate mining
differently on mining claims that have been determined to be
valid than on mining claims of unknown validity, and the
Forest Service’s 36 C.F.R. Part 228 Subpart A regulations are
not limited to mining claims that have been determined to be
valid.” Id. at 20.
24 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

In 2019, the district court granted summary judgment to
plaintiffs in the first two suits, vacating the FEIS and ROD on
the ground that the Forest Service’s decision was inconsistent
with the Mining Law and other federal mining statutes, with
NEPA, and with the APA. Ctr. for Biological Diversity v.
U.S. Fish & Wildlife Serv., 409 F. Supp. 3d 738 (D. Ariz.
2019). The appeal from that decision is before us. The
district court later granted summary judgment in part to the
plaintiffs in the third suit based on the ESA, but the appeal
from that decision is not before us. Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 441 F. Supp. 3d 843
(D. Ariz. 2020). Two additional suits under the Clean Water
Act were consolidated and stayed; neither of those suits is
before us.

In the decision now before us on appeal, the district court
disagreed with both grounds upon which the Service had
relied in approving Rosemont’s MPO. First, the court held
that the Service had improperly relied on Section 612 of the
Multiple Use Act in concluding that Rosemont had not only
a right to conduct mining on its valid claims, but also a right
to all “uses reasonably incident thereto” on its mining claims,
whether or not those claims were valid. The court wrote,
“Nothing within the Multiple Use Act grants an implied right
to use the surface outside of a claim.” Ctr. for Biological
Diversity, 409 F. Supp. 3d at 759.

Second, the district court held that the Service had
improperly assumed the validity of Rosemont’s mining
claims where the waste rock would be dumped. As noted
above, a mining claim is valid only if valuable minerals have
been found on the claim. See 30 U.S.C. §§ 22, 23, 26; Cole,
252 U.S. at 296. Because undisputed evidence in the
administrative record shows that no valuable minerals have
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 25

been found on Rosemont’s claims, the district court held that
the Service acted arbitrarily and capriciously in assuming that
the claims were valid.

The district court wrote:

As Rosemont had unpatented mining claims
covering those 2,447 acres, the Forest Service
accepted, without question, that those
unpatented mining claims were valid. This
was a crucial error as it tainted the Forest
Service’s evaluation of the Rosemont Mine
from the start.

Ctr. for Biological Diversity, 409 F. Supp. 3d at 747. The
court wrote further:

The administrative record before the Forest
Service reflected that there was no location of
a valuable mineral deposit underlying the
unpatented mining claims covering the 2,447
acres in question; as such, the record reflected
that the unpatented claims were invalid.

Nonetheless, the Forest Service assumed that
the claims were valid, assumed that Rosemont
had the right to use those 2,447 acres to
support its mining operation (i.e., by dumping
1.9 billion tons of its waste on that land), and
from those assumptions attempted to
minimize the environmental and cultural
26 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

impacts stemming from Rosemont’s
purported rights connected to their invalid
unpatented mining claims.

Id. at 748.

The district court elaborated:

The Forest Service predicated its decision
regarding Rosemont’s entitlement to process
ore and dump waste rock and tailings on
federal land upon the validity of Rosemont’s
unpatented mining claims. See FEIS at 101
[quoted supra]. Under this presumption, the
Forest Service believed that “Rosemont . . .
has a possessory interest for mining purposes
in unpatented mining claims on the land
where the project is proposed.” See id. [The
district court then quoted a number of
statements in the FEIS and the ROD.] These
statements could accurately reflect the Mining
Law of 1872 if the administrative record
before the Forest Service reflected that
Rosemont held valid unpatented claims in
these areas.

However, the administrative record shows no
basis upon which the Forest Service could
find Rosemont discovered a valuable mineral
deposit within the facilities, tailings, and
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 27

waste rock areas. In fact, the evidence in the
FEIS shows the absence of any such deposit
within those lands.

Id. at 759–60.

Concluding that the Forest Service improperly relied on
Section 612 and improperly assumed the validity of
Rosemont’s mining claims, the district court held that the
Service had acted arbitrarily and capriciously in approving
Rosemont’s MPO. The Service and Rosemont timely
appealed.

III. Standard of Review

We review de novo a district court’s grant of summary
judgment. Okanogan Highlands All. v. Williams, 236 F.3d
468, 471 (9th Cir. 2000).

The APA requires us to set aside agency actions found to
be “arbitrary, capricious, [or] an abuse of discretion.”
5 U.S.C. § 706(2)(A). Agency action is arbitrary and
capricious if the agency “relied on factors which Congress
has not intended it to consider, entirely failed to consider an
important aspect of the problem, [or] offered an explanation
for its decision that runs counter to the evidence before the
agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We may
not “substitute [our] judgment for that of the agency.” FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)
(citation omitted). Our review is limited to “the grounds that
the agency invoked when it took the action.” Michigan v.
EPA, 576 U.S. 743, 758 (2015).
28 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

The Government does not argue for deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984), based on the Forest Service’s
approval of the project. We do not defer under Chevron to
agency decisions made without “a lawmaking pretense in
mind,” such as those made with little or no procedure or that
“stop[] short of [binding] third parties.” United States v.
Mead Corp., 533 U.S. 218, 233 (2001); see generally Hall v.
U.S. Dep’t of Agric., 984 F.3d 825, 835–36 (9th Cir. 2020).
We “treat the precedential value of an agency action as the
essential factor” in determining whether to apply Chevron.
Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.
2009) (en banc) (emphasis in original) (citation omitted).
The Service’s approval of Rosemont’s MPO does not bind
third parties and has no precedential value.

The Government does, however, argue that we should
defer to an opinion of the Solicitor of the Department of the
Interior. See Solicitor’s Opinion M-37057, Opinion Letter on
Authorization of Reasonably Incident Mining Uses on Lands
Open to the Operation of the Mining Law of 1872 (“2020
Opinion Letter”) (Aug. 17, 2020). A Solicitor’s letter can
warrant deference under Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944). See McMaster v. United States, 731 F.3d
881, 892 (9th Cir. 2013). Such documents typically merit
“respect proportional to [their] ‘power to persuade.’” Mead,
533 U.S. at 235 (quoting Skidmore, 323 U.S. at 140). Under
Skidmore, we consider “whether the agency has applied its
position with consistency,” including whether “the agency’s
position . . . was framed for the specific purpose of aiding a
party in this litigation.” Fed. Express Corp. v. Holowecki,
552 U.S. 389, 399–400 (2008).
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 29

We give limited weight to the 2020 Opinion Letter
because, on the issue as to which the Government asks for
deference, the Solicitor has taken inconsistent positions. The
2020 Opinion Letter concludes that “mining claim validity
determinations are not required before allowing reasonably
incident mining uses on open lands.” 2020 Opinion Letter,
supra, at 3. The Solicitor adopted this position in 2005, but
had taken a different position four years earlier. Compare
Solicitor’s Opinion M-37012, Opinion Letter on Legal
Requirements for Determining Mining Claim Validity Before
Approving a Mining Plan of Operations (Nov. 14, 2005), with
Solicitor’s Opinion M-37004, Opinion Letter on Use of
Mining Claims for Purposes Ancillary to Mineral Extraction,
at 3–4, 15–16 (Jan. 18, 2001).

IV. Discussion

A. Overview

We provide detailed analysis in the next section,
responding to arguments made by the Government,
Rosemont, and our dissenting colleague. But the core of the
analysis may be stated succinctly:

Rosemont owns valid mining rights on the National
Forest land where it would dig its proposed pit mine. Mining
rights on that land were given by the federal government
under the Mining Law, essentially free of charge. Rosemont
has now asked the Forest Service to authorize it to
permanently occupy with its waste rock 2,447 acres of
additional National Forest land on which it does not have
valid mining rights, also essentially free of charge.
30 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

The Mining Law anticipated the very problem that
Rosemont faces—finding a place to dump its waste rock.
The Mining Law allows miners to establish mill sites,
essentially free of charge, on nonmineral land near their
mining operations. Dumping waste rock is permissible on
mill sites. That is, the Mining Law already allows Rosemont
to dump its waste rock where it makes the most sense—on
land on which valuable minerals have not been discovered.
However, the amount of waste rock produced by modern pit
mines is much greater than can typically be accommodated
on the mill site land available to a mine operator.

Because the mill site land available to Rosemont does not
serve its purpose as fully or as well as the land on which it
has the mining claims at issue, Rosemont’s proposed solution
in its MPO is to dump its waste rock on those claims. This is
a somewhat counterintuitive solution, given that Rosemont
proposes to permanently occupy land that supposedly
contains valuable minerals with a 700-foot layer of waste
rock. But plaintiffs do not question Rosemont’s right to its
proposed solution, provided its mining claims are valid.

The Forest Service approved Rosemont’s MPO on two
grounds.

First, the Service concluded in the ROD that Section 612
of the Multiple Use Act gives Rosemont the right to dump
waste rock on its mining claims as a “use[] reasonably
incident” to its mining operations, irrespective of any rights
Rosemont may or may not have under the Mining Law. The
Service concluded that if Rosemont has the right under
Section 612 to occupy its mining claims with its waste rock
as a “reasonably incident” use, the Service’s authority to
regulate or forbid such occupancy would be only the limited
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 31

authority set forth in Part 228A regulations. In the district
court, the Government defended the Service’s rationale,
arguing that Section 612 authorizes Rosemont to dump its
waste rock on its mining claims as a “use[] reasonably
incident” to Rosemont’s mining operations. However, the
Government has now abandoned its argument that the Service
properly relied on Section 612.

Second, the Service assumed in the FEIS that Rosemont
has valid mining claims on the land on which it proposes to
dump its waste rock. Based on this assumption, the Service
concluded that Rosemont has the right to occupy 2,447 acres
of its mining claims with its waste rock, to an average depth
of 700 feet. However, validity of a mining claim is a
necessary prerequisite to post-exploration occupancy of a
claim. A claim is valid only if valuable minerals have been
found on the claim. It is undisputed that no valuable minerals
have been found on the claims. The Service thus gave to
Rosemont, essentially free of charge, the right to permanently
occupy 2,447 acres of National Forest land with 1.9 billion
tons of its waste rock based on an improper assumption.
Contrary to the Service’s assumption, Rosemont’s mining
claims are invalid.

As we explain below, neither Section 612 nor the Mining
Law provides Rosemont with the right to dump its waste rock
on thousands of acres of National Forest land on which it has
no valid mining claims. We do not know whether, if the
Service had understood that Section 612 does not grant rights
beyond those granted by the Mining Law and that
Rosemont’s mining claims are invalid under the Mining Law,
it would have decided that Part 228A regulations apply to
Rosemont’s proposal to dump its waste rock, and, if so, on
what ground they are applicable. Nor do we know whether,
32 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

if the Service had found Part 228A regulations applicable
notwithstanding the inapplicability of Section 612 and the
invalidity of Rosemont’s mining claims, it would have
construed those regulations to authorize the dumping of waste
rock. It is the task of the Service to make such decisions in
the first instance. If and when, on remand, the Service
applies Part 228A regulations to approve Rosemont’s
proposed occupancy of its invalid mining claims with its
waste rock, we can rule on the applicability of Part 228A
regulations and on the manner in which the Service has
construed them. In the absence of such decisions by the
Service, any ruling by our court would be premature.

B. Detailed Analysis

We first address Section 612 of the Multiple Use Act. We
then address the Government’s arguments based on the
Mining Act. Finally, we address arguments based on Part
228A regulations.

1. Section 612 of the Multiple Use Act

As discussed above, Section 612 of the Multiple Use Act
does not authorize uses of mining claims beyond those
authorized by the Mining Law. Section 612(a) forbids an
owner of a mining claim to use the claim for “purposes other
than prospecting, mining or processing operations and uses
reasonably incident thereto.” 30 U.S.C. § 612(a). Section
612(b) limits the rights of a mining claim owner by
permitting third parties to use the surface of the land, so long
as those uses do not “endanger or materially interfere . . . with
mining or processing operations or uses reasonably incident
thereto.” Id. § 612(b).
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 33

In its appeal to us, the Government has abandoned the
Service’s reliance on Section 612, as well as the argument it
made in the district court in support of that reliance. The
Government writes in its brief to us that Section 612 “did not
change the lands to which the Mining Law applied or specify
where mining operations may or may not occur.” Rosemont
also eschews any reliance on Section 612. We agree and hold
that the Service improperly relied on Section 612 to support
its decision.

2. The Mining Law

The Government makes several arguments under the
Mining Law that we address in turn.

a. Section 22

In its principal argument to us, the Government proposes
a new rationale based on Section 22 of the Mining Law. The
Service did not rely on this rationale in approving
Rosemont’s MPO. Nor did the Government make this
argument in the district court.

Because we can sustain an agency decision based only on
“the grounds that the agency invoked when it took the
action,” Michigan, 576 U.S. at 758, we cannot sustain the
Service’s approval of the MPO based on the rationale now
proposed by the Government. We nonetheless address the
Government’s newly proposed rationale in the interest of
judicial efficiency, given the likelihood that on remand the
Service would seek to rely on the Government’s
interpretation of Section 22.
34 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

The Government argues to us that Section 22 of the
Mining Law gives Rosemont the right to occupy “open”
Forest Service land with its waste rock, whether or not it has
valid mining claims on that land. The Government concedes
in its brief to us that Rosemont will “occupy” its mining
claims with its waste rock. It argues that Section 22 gives
Rosemont the right to do so, whether or not the claims are
valid. The Government writes: “Because the lands that
Rosemont proposes to use for its waste rock and tailings are
open, Rosemont has a statutory right to occupy those lands,
and the Service had no reason to evaluate whether Rosemont
also possessed valid mining claims.” (First emphasis added.)

As discussed above, Section 22 is part of an integrated
series of sections in the Mining Law that authorize
individuals to enter onto government land, including National
Forest land, to prospect for and to mine valuable minerals. In
relevant part, Section 22 reads:

Except as otherwise provided, all valuable
mineral deposits in lands belonging to the
United States, both surveyed and unsurveyed,
shall be free and open to exploration and
purchase, and the lands in which they are
found to occupation and purchase, by citizens
of the United States . . . under regulations
prescribed by law . . . .

30 U.S.C. § 22 (emphases added).

We begin “with the text, giving each word its ordinary,
contemporary, common meaning.” Star Athletica, LLC v.
Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) (quotation
marks and citation omitted). The plain meaning of Section 22
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 35

is that government lands, without restriction, shall be “free
and open to exploration and purchase” of “valuable mineral
deposits.” 30 U.S.C. § 22 (emphasis added). Section 22
further provides that government lands “in which they [i.e.,
valuable mineral deposits] are found” shall be free and open
to “occupation and purchase.” Id. (emphasis added). That is,
the right of “occupation” depends on valuable minerals
having been “found” on the land in question. See 30 U.S.C.
§§ 23, 26. If no valuable minerals have been found on the
land, Section 22 gives no right of occupation beyond the
temporary occupation inherent in exploration.

The Government argues that the second clause of Section
22—“the lands in which [valuable mineral deposits] are
found [are free and open] to occupation and purchase”—gives
Rosemont a right to occupy National Forest land with its
deposit of 1.9 billion tons of waste rock, even if valuable
minerals have not been found on that land. The
Government’s argument is not only foreclosed by the text of
Section 22. It is also foreclosed by a century of precedent.
In 1919, a unanimous Supreme Court explained that Section
22 authorized temporary occupancy for the purpose of
prospecting for valuable minerals, writing that “some
occupation of the land ordinarily is necessary for adequate
and systematic exploration” to permit “the discovery of
minerals.” Union Oil, 249 U.S. at 346. But, the Court wrote,
to “create valid rights . . . a discovery of mineral is essential.”
Id.

Our court has also explained the distinction drawn in
Section 22 between the right of temporary occupation for
exploration purposes and the right of occupation for mining
purposes after discovery of valuable minerals:
36 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

Section 22 does not grant to citizens of the
United States the single right to locate,
explore and exploit mining claims on the
public domain. The statute grants two rights,
(1) the right to explore and purchase all
valuable mineral deposits in lands belonging
to the United States; and (2) the right to
occupation and purchase of the lands in which
valuable mineral deposits are found. The
right to explore, that is, prospect for valuable
minerals on public lands, cannot be telescoped
with the right to locate the mining claim and
occupy and exploit it for its valuable mineral
content after such minerals have been found.

Davis v. Nelson, 329 F.2d 840, 844–45 (9th Cir. 1964); see
also United States v. Allen, 578 F.2d 236, 238 (9th Cir. 1978)
(“While location of a valuable mineral establishes a right to
the possession of the deposit, and a surface use superior to
any subsequent claimant, mere exploration, without
discovery, does not confer a privilege to obstruct surface
use.”).

Recognizing that Rosemont will “occupy” its mining
claims with its waste rock during the period of active mining,
the Government argues that Section 22 permits Rosemont to
occupy National Forest land with waste rock during that
period because the occupancy will not be permanent. The
Government writes:

Plaintiffs . . . claim that the Service’s decision
effectively granted Rosemont permanent
possession of the lands. That is wrong: after
mining ends and reclamation is completed,
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 37

Rosemont will no longer have the Service’s
authorization to occupy the surface of those
lands. Certainly, the lands will be changed,
but that does not preclude other meaningful
uses after mining and reclamation. For
instance, the mining plan provides that the
waste rock and tailings area will be
revegetated and may support uses like
grazing, wildlife habitat, and recreation.

(Emphasis omitted.)

The Government is wrong on two counts. First, discovery
of valuable minerals is essential to the right to any
occupancy—temporary or permanent—beyond the occupancy
necessary for exploration. As soon as exploration on a claim
is finished, the right to continue to occupy that claim is
contingent on the discovery of valuable minerals, whether or
not the occupation will be permanent. Indeed, non-
exploratory occupation of a valid mining claim is rarely, if
ever, permanent. A right of occupancy lasts only so long as
there are “valuable” minerals on the claim. That is, a right of
occupancy lasts only until the claim is “worked out,” or until
economic forces make it no longer profitable to continue
mining. See, e.g., Mulkern v. Hammitt, 326 F.2d 896, 898
(9th Cir. 1964).

Second, Rosemont’s occupancy with its waste rock
would, in any event, be permanent. The Government and
Rosemont both acknowledge that Rosemont’s 1.9 billion tons
of waste rock would always remain on the land. Rosemont
insists that the waste rock would not be a “permanent
occupation” because of the legal fiction of accretion—a
concept traditionally invoked by riparian and littoral
38 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

landowners claiming ownership of natural deposits of silt,
sand, and the like upon their shoreline properties. See, e.g.,
Doboer v. United States, 653 F.2d 1313, 1314–15 (9th Cir.
1981). Eventually, according to Rosemont, its waste rock
would be only “earth mingled with earth,” and would thus not
be a permanent occupation.

The argument that the proposed occupation would not be
permanent does violence to the English language. Rosemont
proposes to bury the existing surface of 2,447 acres of
National Forest land beneath a 700-foot-deep layer of waste
rock. Under any ordinary definition, the layer of waste rock
will “occupy” the land on which it sits, and will do so
permanently. No person or structure will ever again touch the
surface of that land. Rosemont’s 1.9 billion tons of waste
rock will occupy that land forever, obstructing countless
alternative uses. Cf. United States v. Allen, 578 F.2d 236, 238
(9th Cir. 1978) (“While location of a valuable mineral
establishes a right to the possession of the deposit, and a
surface use superior to any subsequent claimant, mere
exploration, without discovery, does not confer a privilege to
obstruct surface use.”).

b. Validity of Rosemont’s Mining Claims

Conceding for purposes of argument that Rosemont may
occupy its mining claims with its waste rock only if those
claims are valid, the Government next argues that the Service
has no obligation to assess the validity of the claims. The
Government argues in its brief to us:

Even assuming the Mining Law confines
waste rock and tailings facilities to the four
corners of a valid mining claim, the court
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 39

erred in holding that the Service must assess
the validity of Rosemont’s mining claims
before approving Rosemont’s mining plan.
Neither the Organic Act nor the Service’s Part
228A mining regulations require the Service
to undertake that analysis. The fact that those
authorities refer to the Mining Law does not,
as the district court reasoned, create an
implicit requirement that the Service
investigate a mining claim’s validity before
approving a mining plan on open lands.
Although the Service may investigate the
validity of mining claims in some cases, it
was under no obligation to do so here, and its
decision not to do so was reasonable.

(Emphases in original.)

This argument concedes that Rosemont is authorized
under its current MPO to dump its waste rock on its mining
claims only if those claims are valid. The regulations in Part
228A apply to “operations authorized by the United States
mining laws.” 36 C.F.R. § 228.1. If Rosemont’s dumping of
its waste rock is authorized by the Mining Law because its
mining claims are valid, the Service can regulate the dumping
under Part 228A regulations.

The Government insists that the Service may assume the
validity of Rosemont’s mining claims even where, as here,
that assumption is contradicted by the evidence. We
disagree. Undisputed evidence in the record shows that no
valuable minerals have been found on Rosemont’s claims.
Because the discovery of valuable minerals is essential to the
40 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

validity of a claim, Rosemont’s claims are necessarily
invalid.

Indeed, not only have no valuable minerals been found,
but it also appears that none are likely to be found. The
record contains extensive geological evidence describing
rocks that underlie the 2,447 acres, none of which contain
valuable minerals. Despite this evidence, the Government
insists that the Service is not required to assess the validity of
Rosemont’s claims. Instead, according to the Government,
the Service can simply assume their validity.

The Government correctly points out that it is the BLM
rather than the Service that has statutory authorization to
make an adjudicatory determination of the validity of mining
claims. See Freeman v. U.S. Dep’t of Interior, 83 F. Supp. 3d
173, 178–79 (D.D.C. 2015) (describing the administrative
process), aff’d, 650 F. App’x 6 (D.C. Cir. 2016). The
Government asks us to defer to the 2020 Opinion Letter of
the Solicitor, which concludes that “mining claim validity
determinations [by the BLM] are not required before allowing
reasonably incident mining uses on open lands.” 2020
Opinion Letter, supra, at 3. As noted above, the Solicitor’s
2020 Opinion Letter disagreed with a 2001 letter by the
Solicitor, which diminishes the weight of the 2020 Opinion
Letter.

In any event, for two reasons the Solicitor’s 2020 Opinion
Letter does not address the question before us. First, the
Solicitor’s 2020 Opinion Letter does not define “reasonably
incident mining uses.” It nowhere states that permanent
occupancy of an invalid mining claim with a 700-foot layer
of waste rock is a “reasonably incident” use. Second, and
more important, a validity determination by the BLM is
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 41

irrelevant for purposes of this case. On the record before us,
it is clear that Rosemont’s mining claims are invalid. There
is undisputed evidence showing that no valuable minerals
have been found on the claims. That evidence is enough, by
itself, to compel a conclusion that they are invalid.

c. “Overstepping” by the District Court

The district court concluded not only that there is no
evidence that valuable minerals have been found on
Rosemont’s mining claims, but also that no undiscovered
valuable minerals exist on those claims. The Government
argues that the district court “overstepped” in concluding that
Rosemont’s mining claims contain no valuable minerals.

There is extensive geological evidence in the record
describing rocks on Rosemont’s mining claims, and it is
undisputed that no valuable minerals have been discovered on
those claims. It remains possible (though unlikely) that there
are undiscovered valuable minerals on the claims, and we will
agree for the sake of argument that the district court
overstepped in concluding that none exist. However, that is
legally irrelevant. The question is whether valuable minerals
have been “found” on the claims, not whether valuable
minerals might be found. It is undisputed that no valuable
minerals have been found. Because no valuable minerals
have been found, the claims are necessarily invalid. The
district court was therefore correct in holding that the Service
improperly assumed their validity.

3. Part 228A Regulations

The Government and Rosemont argue that Part 228A
regulations authorize Rosemont to occupy open federal land
42 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

with its waste rock, whether or not the land is covered by
valid mining claims, because of the broad definition of
“operations” in those regulations. Our colleague makes a
similar argument in her dissent.

Their arguments rely on interpretations of Sections 228.1
and 228.3(a) of Part 228A. Section 228.1 provides in
relevant part:

It is the purpose of these regulations to set
forth rules and procedures through which use
of the surface of National Forest System lands
in connection with operations authorized by
the United States mining laws (30 U.S.C.
21–54) . . . .

36 C.F.R. § 228.1 (emphases added). The term “operations”
is defined in Section 228.3(a):

Operations. All functions, work, and
activities in connection with prospecting,
exploration, development, mining or
processing of mineral resources and all uses
reasonably incident thereto, including roads
and other means of access on lands subject to
regulations in this part, regardless of whether
said operations take place on or off mining
claims.

Id. § 228.3(a) (emphases added).

The Government and Rosemont point out that the
definition of “operations” in Section 228.3(a) encompasses
“all uses reasonably incident” to mining operations
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 43

“regardless of whether said operations take place on or off
mining claims.” Based on its valid mining rights on the land
where its pit would be located, Rosemont argues that
Section 228.3(a) allows it to deposit its waste rock—as a
“use[] reasonably incident” to mining in the pit—on National
Forest land “off” its mining claims.

Our dissenting colleague makes a similar argument. She
argues that the Service’s authority to regulate Rosemont’s
proposed dumping is governed by Part 228A because, in her
view, “not every activity subject to Part 228A need be
independently authorized by the Mining law.” Dissent at 64.
She reads the “in connection with” language of Section 228.1
to “broaden[] the regulatory scope of Part 228A” to include
permanent occupation of invalid mining claims on National
Forest land, so long as that occupation is “in connection with
or related to [a] concededly valid mining operation.” Id.
at 64, 65 (quotation marks omitted).

Both arguments are premature. The Service relied on Part
228A regulations in its FEIS and ROD, but it did so based on
Section 612 of the Multiple Use Act and on its assumption
that Rosemont’s mining claims are valid under the Mining
Act. The Government has now abandoned any argument
based on Section 612. Further, for reasons explained above,
the Service incorrectly assumed that Rosemont’s mining
claims are valid under the Mining Law. That is, neither of the
statutes upon which the Service relied to support its
application of Part 228A regulations to Rosemont’s MPO
provides such support. Thus, the Service’s approval of
Rosemont’s MPO is unsupported by the bases upon which the
Service relied.
44 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

It is black-letter law “that an agency’s action may not be
upheld on grounds other than those relied on by the agency.”
Nat’l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S.
407, 420 (1992). It is a “foundational principle of
administrative law that a court may uphold agency action
only on the grounds that the agency invoked when it took the
action.” Michigan, 576 U.S. at 758; see also Dep’t. of
Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct.
1891, 1909 (2020) (“An agency must defend its actions based
on the reasons it gave when it acted.”); State Farm, 463 U.S.
at 50 (“It is well-established that an agency’s action must be
upheld, if at all, on the basis articulated by the agency
itself.”); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The
grounds upon which an administrative order must be judged
are those upon which the record discloses that its action was
based.”).

We do not know whether, if the Service had understood
that Section 612 gave no rights beyond those conferred by the
Mining Law and that Rosemont’s mining claims are invalid
under the Mining Law, it would have found some other
statutory basis to support the application of Part 228A
regulations. Nor do we know whether, if it were to rely on
some other statutory basis, the Service would construe Part
228A regulations to authorize Rosemont’s permanent
occupancy of invalid mining claims with its waste rock.

In applying Part 228A regulations and relying on their
own construction of those regulations to authorize
Rosemont’s proposed occupancy, the Government,
Rosemont, and our dissenting colleague are putting the cart
before the horse. Unless and until the Service decides on
remand that Part 228A regulations are applicable to
Rosemont’s proposed occupancy of invalid mining claims
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 45

with its waste rock, and unless and until the Service construes
those regulations to permit such occupancy, any ruling by our
court on these questions is premature.

V. Conclusion

The Forest Service acted arbitrarily and capriciously in
approving Rosemont’s MPO based on its misunderstanding
of Section 612 of the Multiple Use Act and on its incorrect
assumption that Rosemont’s mining claims are valid under
the Mining Law.

The Mining Law allows mining companies to occupy
federal land on which valuable minerals have been found, as
well as non-mineral federal land for mill sites, essentially free
of charge. Rosemont wants to permanently occupy 2,447
acres of National Forest land with its waste rock, essentially
free of charge, even though no valuable minerals have been
found on that land and no mill sites have been established.
On the current administrative record, the Service de facto
amended the Multiple Use Act and the Mining Law to give
Rosemont what it wants.

For decades, commentators have urged reform of the
Mining Law. See, e.g., Robert W. Swenson, Legal Aspects
of Mineral Resources Exploitation, in Paul W. Gates, History
of Public Land Law Development 699, 757 (1968) (stating
that a “great many articles have appeared with suggestions
which would either promote the objectives of the industry or
the government” (footnotes omitted)); Leshy, supra, at 4–5
(noting that the law has been subject to “trenchant criticism”
and that “no one defends the Mining Law in its present
form”). In virtually every session of Congress, multiple
competing reforms of the Mining Law are introduced.
46 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

Compare Hardrock Leasing and Reclamation Act, H.R. 2579,
116th Cong. (2019), with National Strategic and Critical
Minerals Production Act, H.R. 2531, 116th Cong. (2019).
But amendment of the Mining Law is a task for Congress, not
for the Service, and certainly not for us.

AFFIRMED.

FORREST, Circuit Judge, dissenting:

Early in our history, Congress deemed it in our national
interest to encourage development of the country’s wealth of
mineral resources, and it enacted the Mining Law in 1872
declaring public mineral lands “free and open.” 30 U.S.C.
§ 22. For nearly a century and a half, the Mining Law has
remained largely untouched. And in 1996, Congress
confirmed “that it is the continuing policy of the Federal
Government in the national interest to foster and encourage
private enterprise in . . . [mining] to help assure satisfaction
of industrial, security and environmental needs.” 30 U.S.C.
§ 21a. While national policy concerning mining is clear, the
scope of mining activities that may be performed on public
lands is not.

The Mining Law itself provides sparse guidance
concerning the scope and application of the rights it grants for
using public lands for mining. To fill in the gaps left by
Congress, the United States Forest Service (USFS) has
promulgated regulations that govern surface uses of forest
land related to mining. 36 C.F.R. Part 228, Subpart A. In
doing so, the USFS has interpreted the Mining Law as
allowing mining-related activity to occur both on lands that
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 47

contain valuable minerals and, therefore, can be claimed for
mining (on-claim lands) and on lands that do not contain
valuable minerals (off-claim lands). See id. §§ 228.1,
228.3(a). The USFS has separate regulations that govern
surface uses of forest lands unrelated to mining. 36 C.F.R.
Part 251, Subpart B.

This case boils down to which of the USFS’s regulations
govern the placement of waste rock resulting from mining
onto forest land. The majority concludes that the Mining Law
allows placement of waste rock only on forest land where
valuable minerals are found (on-claim land) or mill sites. The
majority further concludes that the USFS erroneously
assumed that Rosemont’s claims to the forest land where it
proposed to deposit waste rock were valid and that, based on
this erroneous assumption, the USFS abused its discretion in
concluding that the Part 228A regulations govern this
activity.

I disagree. The regulations that the USFS has adopted to
fill in the gaps left by the Mining Law make two things clear:
(1) the lawfulness of waste-rock disposal does not depend on
whether the mine operator has valid mining claims to the
disposal area, and (2) it was not arbitrary and capricious for
the USFS to apply Part 228A to Rosemont’s proposed deposit
of waste rock because on their express terms they apply to
this activity as a matter of law. Therefore, I would reverse
and remand for the district court to assess the USFS’s
decision under Part 228A.
48 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

I. APPLICABLE LAW

A. The Law of Mining

In the late Nineteenth century, Congress enacted the
Mining Law to “promote the Development of the mining
Resources of the United States.” 17 Stat. 91 (1872); United
States v. Coleman, 390 U.S. 599, 602 (1968) (“Under the
mining laws Congress has made public lands available to
people for the purpose of mining valuable mineral deposits
and not for other purposes.”). Section 22 of the Mining Law
provides that “all valuable mineral deposits in lands
belonging to the United States . . . shall be free and open to
exploration and purchase, and the lands in which they are
found to occupation and purchase.” 30 U.S.C. § 22. The
Supreme Court has held that these rights are not dependent on
prior discovery of valuable minerals. Union Oil Co. of Cal. v.
Smith, 249 U.S. 337, 346 (1919).

Under Section 26 of the Mining Law, one who locates
valuable minerals on public lands has “the exclusive right of
possession and enjoyment of all the surface included within
the lines of their locations, and of all veins, lodges, or ledges
throughout their entire depth.” 30 U.S.C. § 26. In addition to
these general rights, miners may take the further step of
“patenting” located mining claims, id. § 29, as well as mill
sites—i.e., “nonmineral land not contiguous to the vein or
lode” that is used for “mining or milling purposes,” id. § 42.
A patent typically conveys full title to the subject land.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 49

McMaster v. United States, 731 F.3d 881, 885 (9th Cir.
2013).1

Over time, the broad rights to public lands granted by the
Mining Act were abused. Mining claims were staked on
public land to obtain timber, fishing and hunting grounds, and
other non-mineral resources. United States v. Curtis-Nev.
Mines, Inc., 611 F.2d 1277, 1282 (9th Cir. 1980). In 1955,
Congress enacted the Surface Resources and Multiple Use
Act (Surface Resources Act), 30 U.S.C. §§ 611–615, to curb
“abuses of the mining laws when mining claims were located
with no real intent to prospect or mine but rather to gain
possession of the surface resources.” Curtis-Nev. Mines, Inc.,
611 F.2d at 1282.

Section 612(a) of the Surface Resources Act provides that
an unpatented mining claim may be used only for
“prospecting, mining or processing operations and uses
reasonably incident thereto.” 30 U.S.C. § 612(a). Section
612(b) confirms that rights conveyed by a mining claim are
subject to the federal government’s power “to manage and
dispose of the vegetative surface resources thereof and to
manage other surface resources thereof (except mineral
deposits subject to location under the mining laws of the
United States).” Id. § 612(b).

As recently as 1996, Congress reaffirmed its commitment
to the development of the nation’s mineral resources,

1
In 1994, Congress suspended the patenting process for mining
claims on federal land. Pub. L. No. 103-332 § 112, 108 Stat. 2499, 2519.
This repudiation did not impact the development of unpatented mining
claims. Congress’s suspension of patent rights does not impact the
outcome of this case.
50 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

“declar[ing] that it is the continuing policy of the Federal
Government in the national interest to foster and encourage
private enterprise in . . . the development of economically
sound and stable domestic mining, minerals, metal and
mineral reclamation industries,” as well as “orderly and
economic development of domestic mineral resources,
reserves, and reclamation of metals and minerals to help
assure satisfaction of industrial, security and environmental
needs.” 30 U.S.C. § 21a; see also id. § 1602 (1980) (“It is the
continuing policy of the United States to promote an adequate
and stable supply of materials necessary to maintain national
security, economic well-being and industrial production with
appropriate attention to the long-term balance between
resource production, energy use, a healthy environment,
natural resources conservation, and social needs.”).

B. The Law of National Forests

Concerned about the depletion of forest resources, in
1891, Congress gave the President power to reserve forest
lands from the public domain. United States v. New Mexico,
438 U.S. 696, 707–08 (1978). Six years later, Congress
enacted the Organic Administration Act of 1897 (Organic
Act), which clarified that the only permissible purposes for
reserving forest land are “securing favorable conditions of
water flows, and . . . furnish[ing] a continuous supply of
timber for the use and necessities of citizens of the United
States.” 16 U.S.C. § 475; New Mexico, 438 U.S. at 707.
Congress’s motivation in creating national forests was
economic, not to promote “aesthetic, environmental,
recreational, or wildlife-preservation purposes.” New Mexico,
438 U.S. at 708. The Organic Act also clarified that Congress
did not intend for “lands more valuable for the mineral
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 51

therein . . . than for forest purposes” to be reserved as forest
lands. 16 U.S.C. § 475.

The Secretary of Agriculture is tasked with “mak[ing]
provisions for the protection against . . . depredations upon”
the national forests. Id. § 551. The Secretary “may make such
rules and regulations as will insure the objects of such
reservations, namely, to regulate their occupancy and use and
to preserve the forests thereon from destruction.” Id. But,
consistent with the national policy favoring mineral
development, such rules and regulations cannot “prohibit any
person from entering upon such national forests for all proper
and lawful purposes, including that of prospecting, locating,
and developing the mineral resources thereof.” Id. § 478.

The Secretary conferred on the USFS—an agency within
the Department of Agriculture—the authority to regulate the
surface impacts of mining on national forest land. In 1974,
the USFS promulgated “rules and procedures” to govern
these activities. 39 Fed. Reg. 31,317 (Aug. 28, 1974);
36 C.F.R. Part 228, Subpart A. By their express terms, the
Part 228A regulations apply to the “use of the surface of
National Forest System lands in connection with operations
authorized by the United States mining laws . . . so as to
minimize adverse environmental impacts on National Forest
System surface resources.” 36 C.F.R. § 228.1 (emphasis
added). These regulations do not govern the “management of
mineral resources,” which is a power granted to the
Department of Interior; they manage only surface use of
forest lands related to authorized mining activities. Id.2

2
Section 228.1 clarifies that “the responsibility for managing
[mineral] resources is in the Secretary of the Interior” rather than the
Secretary of Agriculture. The Department of the Interior is the federal
52 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

The Part 228A regulations define mining “operations” to
include “[a]ll functions, work, and activities in connection
with prospecting, exploration, development, mining or
processing of mineral resources and all uses reasonably
incident thereto . . . regardless of whether said operations take
place on or off mining claims.” Id. § 228.3(a). Anyone
wanting to conduct mining activities on forest land must
submit a detailed plan of operations to the USFS. Id.
§ 228.4(a)(3), (c)–(d). The USFS must determine whether the
proposed plan requires an environmental impact statement
under the National Environmental Policy Act (NEPA),
42 U.S.C. § 4321 et seq. 36 C.F.R. § 228.4(f); see id.
§ 228.5(a)(5). After the USFS reviews the proposed project
(including conducting any environmental analysis required by
NEPA), it may approve the mining plan or notify the operator
of any changes needed to comply with Part 228A’s
environmental-protection requirements. Id. § 228.5(a)(1), (3);
see also id. § 228.8 (requiring operations to be “conducted so
as, where feasible, to minimize adverse environmental
impacts”).

Because the USFS interpreted the Mining Law as granting
statutory rights to use public land for mining purposes, the
Part 228A regulations do not allow the USFS to prohibit
mining operations in fulfilling its mandate under the Organic
Act to “make provisions for the protection against . . .
depredations upon” the national forests. 16 U.S.C. § 551; see
36 C.F.R. § 228.5(a). The USFS clarified its interpretation of
the Mining Law in a statement accompanying its adoption of
the Part 228A regulations:

agency that adjudicates mining claims on both Bureau of Land
Management-administered lands and on forest lands. See Clouser v. Espy,
42 F.3d 1522, 1530 n.9 (9th Cir. 1994).
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 53

[The USFS] recognizes that prospectors and
miners have a statutory right, not mere
privilege, under the 1872 mining law and the
Act of June 4, 1897, to go upon and use the
open public domain lands of the National
Forest System for the purposes of mineral
exploration, development and production.
Exercise of that right may not be
unreasonably restricted. Specific provision
has been made in the operating plan approval
section of the regulations charging Forest
Service administrators with the responsibility
to consider the economics of operations, along
with the other factors, in determining the
reasonableness of the requirement for surface
resource protection.

39 Fed. Reg. 31,317 (Aug. 28, 1974).

The USFS’s separate Part 251 regulations govern “special
uses” of forest lands. By their express terms, these regulations
do not apply to surface uses that are “authorized by the
regulations governing . . . minerals (part 228).” 36 C.F.R.
§ 251.50 (emphasis added). The USFS has broader regulatory
authority under Part 251 than under Part 228A. The USFS
will grant a special-use application submitted under Part 251
only if the proposed use complies with the applicable forest
plan and “will not create an exclusive or perpetual right of
use or occupancy” or “involve disposal of solid waste or
disposal of radioactive or other hazardous substances” on
forest lands. Id. § 251.54(e)(1)(ii), (iv), (ix). The USFS also
must reject any proposed special use that “would not be in the
public interest.” Id. § 251.54(e)(5)(ii).
54 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

II. BACKGROUND

A. Rosemont’s Proposed Mine

In 2007, Rosemont submitted a preliminary Mine Plan of
Operations (MPO) to the USFS seeking approval to develop
an open pit copper mine in southeastern Arizona. The
preliminary MPO located the project on federal public lands
within the Coronado National Forest and adjacent and
intermingled state and private lands located within forest
boundaries. After receiving Rosemont’s MPO, the USFS
published a Notice of Intent to Prepare an Environmental
Impact Statement as required by NEPA. The Draft
Environmental Impact Statement was published in 2011, and
the Final Environmental Impact Statement (FEIS) was
published two years later in 2013. In its environmental
review, the USFS considered Rosemont’s proposed action,
four action alternatives, and a no-action alternative. See
40 C.F.R. § 1502.14 (requiring agencies to discuss
“alternatives” in an environmental impact statement).

After a decade of review that occurred primarily during
the Obama administration, the USFS issued a Record of
Decision (ROD) in 2017, rejecting Rosemont’s proposed
action and selecting one of the action alternatives—“the
Barrel Alternative.”3 The USFS explained that this alternative
affects the smallest area and best protects environmental
resources. Under the Barrel Alternative, Rosemont’s
approved mining project—the Rosemont Copper Project—
will cover 5,431 acres of land and include an open pit mine,
a processing plant, waste rock and tailings facilities, and

3
The ROD also amended the 1986 Coronado National Forest Plan to
allow Rosemont’s MPO.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 55

ancillary facilities such as access and maintenance roads and
electrical and water supplies. The mine pit itself will cover
955 acres. Rosemont privately owns 590 of those acres, and
it has unpatented mining claims on the remaining 365 acres
of open public land.

Excavation of the mine pit will displace approximately
1.9 billion tons of waste rock and tailings. The Barrel
Alternative places these waste materials on approximately
2,447 acres of open forest land to which Rosemont has
unpatented mining claims. At the end of the mining project,
the waste materials deposit will be approximately 700 feet
deep and will remain on the surface of the forest lands in
perpetuity.

The USFS imposed a variety of mitigation and
reclamation measures in approving Rosemont’s project,
including establishment of a $25 million Santa Rita
Mountains Community Endowment Trust with an additional
$12.5 million in contributions to the Trust during operations
and revegetation of the land where the waste rock and tailings
are deposited so that it may support wildlife habitat,
recreation, and grazing after the mining is completed.

B. Procedural History

Numerous parties filed lawsuits challenging the approval
of the Rosemont Copper Project, and the district court
consolidated cases sharing similar factual and legal issues.
Relevant here, several environmental and conservation
groups and Native American Tribes challenged the USFS’s
approval of the project as arbitrary and capricious under the
Administrative Procedure Act (APA). Specifically, these
parties (collectively, Plaintiffs) argued that the USFS
56 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

misunderstood its regulatory authority under the Organic Act,
misinterpreted both the Mining Law and the Surface
Resources Act, and wrongfully assumed that Rosemont’s
unpatented mining claims conferred a statutory right to
occupy open public land. Plaintiffs also claimed that the
USFS violated NEPA by failing to take a “hard look” at the
alternatives to approving the Rosemont Copper Project.

The parties cross-moved for summary judgment, and the
district court ruled in Plaintiffs’ favor. The district court
concluded that the Mining Law grants discoverers of valuable
mineral deposits the right to operate only on land subject to
a valid mining claim and does not confer a general right to
use open public land for mining activities. Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 409 F. Supp. 3d 738,
758–59, 761 (D. Ariz. 2019). It also concluded that the USFS
erroneously “predicated its decision regarding Rosemont’s
entitlement to process ore and dump waste rock and tailings
on federal land upon the validity of Rosemont’s unpatented
mining claims,” id. at 759, when it had not established a
“factual basis upon which [it] could form an opinion” as to
the validity of Rosemont’s unpatented claims, id. at 757, 760.
Conducting its own review, the district court found that there
is no evidence to support the validity of Rosemont’s
unpatented claims to the area where the waste rock and
tailings would be deposited. Id. at 760–61. Therefore, it held
that the USFS violated its statutory obligations in approving
the Rosemont Copper Project by failing “to consider an
important aspect of the problem.” Id. at 757–63, 766 (quoting
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)).

The district court also held that the USFS erred by
applying Part 228A to the proposed waste rock deposit
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 57

because that activity is not authorized by the Mining Law and
Part 228A governs only “use of the surface of National Forest
lands in connection with operations authorized by the United
States mining laws.” Id. at 764 (quoting 36 C.F.R. § 228.1).
The district court concluded that the USFS should have
applied Part 251 because the Mining Law does not allow
miners to deposit waste materials on off-claim land. Id. at
764–66. And by not applying Part 251, which prohibit the
placement of solid waste on forest lands, the USFS violated
NEPA by failing “to take the requisite hard look” at the
alternatives that “rejected the MPO or substantially modified
it as to make the mine economically unfeasible.” Id. at 766
(citing Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d
797, 813–14 (9th Cir. 2005)).

III. STANDARD OF REVIEW

“We review de novo a challenge to a final agency action
decided on summary judgment and pursuant to Section 706”
of the APA. Ctr. for Biological Diversity v. Esper, 958 F.3d
895, 903 (9th Cir. 2020). “De novo review of a district court
judgment concerning a decision of an administrative agency
means the court views the case from the same position as the
district court,” Turtle Island Restoration Network v. Nat’l
Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003),
and “review[s] directly the agency’s action under the
Administrative Procedure Act’s [] arbitrary and capricious
standard,” Alaska Wilderness League v. Jewell, 788 F.3d
1212, 1217 (9th Cir. 2015) (quotation marks omitted).

Courts must “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). In conducting
58 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

this review, we must “engage in a substantial inquiry[,] . . . a
thorough, probing, in-depth review” of the agency action.
Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d
953, 960 (9th Cir. 2005) (quoting Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971)).
Yet, arbitrary-and-capricious review is “highly deferential”
to the agency. Providence Yakima Med. Ctr. v. Sebelius,
611 F.3d 1181, 1190 (9th Cir. 2010). Courts must “presum[e]
the agency action to be valid and affirm[] the agency action
if a reasonable basis exists for its decision.” Ranchers
Cattlemen Action Legal Fund United Stockgrowers of Am. v.
U.S. Dep’t of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007)
(citation omitted). Courts must not simply substitute their
judgment for that of the agency.4 Earth Island Inst. v.
Carlton, 626 F.3d 462, 468 (9th Cir. 2010).

IV. DISCUSSION

It is undisputed that the USFS has regulatory authority
over Rosemont’s proposed deposit of waste rock and tailings
on forest land. The dispute is which regulatory scheme
applies to this activity. The USFS and Rosemont contend that
Part 228A governs this activity because the waste materials
arise from the mining operation. The Plaintiffs contend that
Part 251 applies because the Mining Law does not authorize
the deposit of waste materials on off-claim land.

The majority contends that resolving which regulations
apply is premature because the USFS’s application of Part

4
As the majority notes, the government does not argue for deference
under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), or related deference doctrines. Therefore, it is
unnecessary to address those doctrines here.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 59

228A was based on Section 612 of the Surface Resources
Act, which it has now abandoned, and on the erroneous
assumption that Rosemont has valid mining claims to the land
where the waste materials would be deposited. Therefore, the
majority concludes that the USFS should decide in the first
instance which regulatory scheme applies with the corrected
understanding that Section 612 does not apply and
Rosemont’s relevant claims are invalid.

In my view, it is unnecessary to address Section 612
because the USFS’s application of Part 228A was not
dependent on Section 612 applying. And to the extent the
majority asserts that the government’s abandonment of
Section 612 establishes that it is inapplicable as a matter of
law, it misconstrues the government’s briefing and runs afoul
of the party-presentation principle. See United States v.
Sineneng-Smith, __ U.S. __, 140 S. Ct. 1575, 1579 (2020)
(“[I]n the first instance and on appeal, we rely on the parties
to frame the issues for decision and assign to courts the role
of neutral arbiter of matters the parties present.”) (internal
quotation marks and citation omitted).

Moreover, the question of which regulatory scheme
applies is a legal question that depends on the express terms
of the regulations, not on the issues that the majority
identifies. Thus, we can and should resolve this legal
interpretation question without remand to the agency. And
reaching that issue, I conclude that Part 228A applies
regardless of whether Rosemont has valid mining claims to
the land where it seeks to deposit waste rock.
60 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

A.

Courts decide questions of law. This is true even if the
question is the meaning of a regulation enacted by an agency.
See Kisor v. Wilkie, __ U.S. __, 139 S. Ct. 2400, 2415 (2019)
(holding Auer deference does not apply when the meaning of
a regulation can be determined as a matter of law). As the
Supreme Court has instructed, “if there is only one reasonable
construction of a regulation—then a court has no business
deferring to any other reading.” Id. To determine whether an
ambiguity exists that necessitates a “policy-laden choice,” as
opposed to application of a legal interpretation, “a court must
exhaust all the traditional tools of construction.” Id. (internal
quotation marks and citation omitted). For reasons explained
below, the scope of Part 228A is not ambiguous and its
application to Rosemont’s proposed waste rock deposit can
and should be decided as a matter of law.

The majority’s conclusion that the USFS should decide
whether Part 228A applies (with the understanding that
Rosemont’s claims to the deposit lands are invalid) suggests
that it views this question as outside our purview to decide.
The majority relies on SEC v. Chenery Corp., 318 U.S. 80
(1943), and its progeny. Ct. Op. 44–45.

Chenery tells us not to sustain an administrative ruling on
a different ground than the agency offered. Id. at 87. But this
rule applies to discretionary and policy-based decisions
committed to the agency. See, e.g., Dep’t of Homeland Sec.
v. Regents of the Univ. of Cal., __ U.S. __, 140 S. Ct. 1891,
1907–09 (2020) (declining to consider post hoc reasons for
agency’s decision to rescind the Deferred Action for
Childhood Arrivals program because “[a]n agency must
defend its actions based on the reasons it gave when it
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 61

acted”); Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, __
F.4th __, 2022 WL 1162310, at *5 (9th Cir. 2022) (rejecting
EPA’s post hoc justification for declining to unregister a
challenged pesticide because it was “not contained” in the
agency’s decision); Ctr. for Biological Diversity v. Haaland,
998 F.3d 1061, 1068 (9th Cir. 2021) (rejecting agency’s post
hoc reasons for delisting the Pacific walrus as a threatened
species and noting that “a policy change violates the APA if
the agency ignores or countermands its earlier factual
findings without reasoned explanation for doing so”)
(emphasis added) (citation omitted).

The Chenery rule does not apply to purely legal issues
“within the power of the appellate court to formulate.”
Chenery, 318 U.S. at 88; see also Louis v. U.S. Dep’t of Lab.,
419 F.3d 970, 978 (9th Cir. 2005) (“Chenery I was premised
on the policy that courts should not substitute their judgment
for that of the agency when reviewing a ‘determination of
policy or judgment which the agency alone is authorized to
make and which it has not made.’”) (quoting Chenery,
318 U.S. at 88). Determining which regulatory scheme
applies based on the language of the regulations is a legal
question that courts have the power to decide. Canonsburg
Gen. Hosp. v. Burwell, 807 F.3d 295, 304 (D.C. Cir. 2015)
(Chenery applies only to “determinations specifically
entrusted to an agency’s expertise,” not “legal principles” of
the sort “that a court usually makes”). This is not a matter of
policy or discretion—the text of a regulation “just means
what it means.” Kisor, 139 S. Ct. at 2415. Thus, there is
nothing to suggest that we can or should avoid this issue, and
as Chenery acknowledges, it is “wasteful” to do so. 318 U.S.
at 88.
62 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

B.

I now turn to the question of which regulations govern
Rosemont’s proposed placement of its waste rock and tailings
on national forest land. As previously outlined, Part 228A
regulations govern surface uses of forest land related to
mining activities. See 36 C.F.R. Part 228, Subpart A.
Specifically, Part 228A

set[s] forth rules and procedures through
which use of the surface of National Forest
System lands in connection with operations
authorized by the United States mining laws
(30 U.S.C. 20–54), which confer a statutory
right to enter upon the public lands to search
for minerals, shall be conducted so as to
minimize adverse environmental impacts on
National Forest System surface resources.

Id. § 228.1 (Section 228.1). Part 251 regulations, on the other
hand, govern surface uses of forest land that are not subject
to “the regulations governing . . . minerals (part 228).” Id.
§ 251.50. Thus, these regulatory schemes are mutually
exclusive and the determinative question is whether disposal
of waste rock from a mining operation falls within the scope
of Section 228.1.

The key word in Section 228.1 is “operations” because
that is what must be authorized by the Mining Law.
“Operations” is defined as “[a]ll functions, work, and
activities in connection with prospecting, exploration,
development, mining or processing of mineral resources and
all uses reasonably incident thereto . . . regardless of whether
said operations take place on or off mining claims.” Id.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 63

§ 228.3(a). Thus, “in connection with” is used both in Section
228.1’s definition of the regulatory scope of Part
228A—surface uses in connection with operations—and in
Section 228.3(a)’s definition of “operations”—functions,
work, and activities in connection with prospecting,
exploring, developing, mining or processing mineral
resources.

As a matter of plain language, “in connection with” is
broad. Relevant here, “connection” means an “association or
relationship.” American Heritage Dictionary of the English
Language 390 (5th ed. 2011). And the full phrase “in
connection with” means “[i]n relation to; with respect to;
concerning.” Id. The Supreme Court “has often recognized
that ‘in connection with’ can bear a ‘broad interpretation.’”
Mont v. United States, 139 S. Ct. 1826, 1832 (2019)
(collecting cases). And in some contexts, the Court has
recognized that it is “essentially indeterminate because
connections, like relations, stop nowhere.” Id. (quoting
Maracich v. Spears, 570 U.S. 48, 59 (2013)).5 And as a
matter of policy, the USFS has determined that its mining
regulations “should attempt to minimize or prevent, mitigate,
and repair adverse environmental impacts on National Forest
System surface and cultural resources as a result of lawful
prospecting, exploration, mining, and mineral processing
operations, as well as activities reasonably incident thereto.”
Forest Service Manual § 2817.02 (emphasis added).

5
As in Mont, concerns about the outer limits of “in connection with”
need not be grappled with here because, in context, depositing waste rock
and tailings—the activity in controversy—is necessarily and directly
connected with Rosemont’s proposed mine.
64 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

With these interpretive guides in mind, the Part 228A
regulations apply to: (1) surface use of forest lands;
(2) related to; (3) all functions, work, and activities related to
prospecting, exploration, development, mining or processing
of mineral resources that are authorized by the Mining Law
and uses reasonably incident thereto. 36 C.F.R. §§ 228.1,
228.3(a). The core prospecting, exploration, development, or
processing of mineral resources must be authorized by the
Mining Law, but because Section 228.1 broadened the
regulatory scope of Part 228A to uses “in connection with”
operations, rather than just uses that themselves qualify as
operations, not every activity subject to Part 228A need be
independently authorized by the Mining Law.

Turning to this case, the first element is met. Rosemont’s
planned deposit of organic waste materials on forest land is
a surface use of the land.6 Regarding the third element,
properly framed the “operation” (or mining “functions, work,
and activities”) at issue is the excavation and development of
the open pit copper mine. Rosemont “submit[ted] a proposed
plan of operations” outlining its intent to excavate a pit mine,
id. § 228.4(a)(3), and every aspect of its MPO furthers this

6
The majority seems to suggest that the deposit of waste rock and
tailings is not a surface “use” under Section 228.1 because it is a
permanent occupation. Ct. Op. 40. The majority provides no legal
authority for the proposition that depositing waste rock is not a “use” of
land. “Use” is not specifically defined and, therefore, we give it its
ordinary meaning. See FCC v. AT&T Inc., 562 U.S. 397, 403 (2011).
Commonly understood, “use” means “[t]o put into service or employ for
a purpose.” American Heritage Dictionary of the English Language 1907
(5th ed. 2011). The placement of materials on the surface of land is putting
to service the land, and it is far from clear that where those materials are
themselves taken from the land that the deposit is an “occupation,” or that
occupation by a thing, as opposed to a person or entity that can hold
property rights, is what was contemplated by Section 22.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 65

objective. Similar activities, such as mine “excavation,
exploration, and core drilling” have been deemed
“operations” under § 228.3(a). Idaho Conservation League v.
Atlanta Gold Corp., 879 F. Supp. 2d 1148, 1163 (D. Idaho
2012); see also United States v. McClure, 364 F. Supp. 2d
1183, 1185 n.5 (E.D. Cal. 2005) (noting that gold mining fell
into § 228.3(a)’s “broad” definition of operation). The
majority concedes that Rosemont has “valid mining rights on
the land where its pit would be located,” Ct. Op. 43, and it
cannot reasonably be disputed that the mine itself is
“authorized by the United States mining laws,” 36 C.F.R.
§ 228.1. Thus, element three is satisfied.

The remaining question then is whether depositing waste
materials removed from the mine is a surface use “in
connection with” or “related to” the concededly valid mining
operation—element two. The answer is yes. Processing and
removing waste materials is an unavoidable part of open pit
mining. See 1 American Law of Mining § 1.01(5)(c) (2d ed.
2021). Rosemont cannot extract its valuable mineral
resources without removing and relocating organic non-
mineral or waste materials. This is not a tangential activity to
“development, mining or processing of mineral resources;” it
is inevitable. And the logic of concluding that displacement
of waste rock and tailings is not a surface use “in connection
with” mining is illusive.

Thus, on its express terms Section 228.1 encompasses
Rosemont’s disposal of waste rock and tailings onto forest
land, meaning that Part 228A governs this activity. 36 C.F.R.
§ 228.1. And as such, the lawfulness of this activity does not
depend on whether Rosemont has valid mining claims
covering the proposed disposal area. The waste-deposit
activities are not the “operation” that must be authorized by
66 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

the Mining Law; it is an activity that is “in connection with”
the authorized operation. Id. And where the regulations state
that authorized operations can occur on-claim or off-claim, it
necessarily follows that those activities in connection with
such operations are likewise not claim bound. Id.7

The structure and objective of Part 228A further support
interpreting these regulations as applying to Rosemont’s
proposed waste rock placement. See Maracich, 570 U.S. at
59–60. It “is standard practice in today’s understanding of
administrative law” that “an agency charged with
administering a statute has the power to make rules ‘to fill
any gap left, implicitly or explicitly, by Congress.’”
Rancheria v. Jewell, 776 F.3d 706, 712 (9th Cir. 2015)
(quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). That is
precisely what the USFS did when it promulgated Part 228A
to implement the Organic Act in a manner consistent with the
Mining Law. See 39 Fed. Reg. 31,317 (Aug. 28, 1974).

The USFS promulgated “rules and procedures” to ensure
that activities related to mining are “conducted so as to
minimize adverse environmental impacts on National Forest
System surface resources.” 36 C.F.R. § 228.1; see also id.
§ 228.2. The USFS recognized the necessity of environmental
protection as well as “use of surface resources in connection
with mineral operations.” 39 Fed. Reg. 31,317 (Aug. 28,
1974). Not surprisingly then, Part 228A regulations explicitly
impose numerous environmental-protection requirements,
including reclamation standards that address, among other
things, disposal of “[s]olid [w]astes,” including “[a]ll tailings,

7
The Forest Service Manual further supports this conclusion, stating
that Part 228A applies to all “activities . . . which may be conducted under
the mining laws but not on claims.” Forest Service Manual § 2817.03.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 67

dumpage, deleterious materials, or substances and other waste
produced by operations.” 36 C.F.R. § 228.8(c) (emphasis
added).

The majority repeatedly omits or deemphasizes the phrase
“in connection with” in referencing that Part 228A applies
only to “operations authorized by the United States mining
laws.” See, e.g., Ct. Op. 16, 39. I agree that to satisfy Section
228.1, the “operation” must be authorized by the Mining
Law. But, again, the deposit of waste materials is not the
relevant “operation”—it is the open pit copper mine. Not only
does excavation and operation of the mine meet the definition
of “operation” because it is “work . . . in connection with . . .
mining or processing of mineral resources,” 36 C.F.R.
§ 228.3(a), but treating the waste-deposit activity as the
relevant operation renders superfluous the Part 228A
reclamation provisions. Section 228.8(c) of these regulations
provides that “[a]ll tailings, dumpage, deleterious materials,
or substances and other waste produced by operations shall
be [deposited] so as to minimize adverse impact upon the
environment and forest surface resources.” (emphasis added).
This gives the USFS specific regulatory authority over how
waste resulting from mining operations is handled. If the
disposal of waste rock and tailings itself were the relevant
“operation,” then this section would read: “[a]ll tailings,
dumpage, deleterious materials, or substances and other waste
produced by [the disposal of waste rock and tailings] shall be
[deposited] as to minimize adverse impact upon the
environment and forest surface resources.” Id. This makes
little sense. Why specify a rule for disposing of waste
materials resulting from mining operations if such disposal
itself is an operation? See United States v. Jicarilla Apache
Nation, 564 U.S. 162, 185 (2011) (“As our cases have noted
in the past, we are hesitant to adopt an interpretation of a
68 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

[law] which renders superfluous another portion of that same
law.”) (citation omitted).

When “operation” is properly construed, the “in
connection with operations” phrase becomes material.
36 C.F.R. § 228.1 (emphasis added). Had the USFS wanted
the Part 228A regulations to govern only activities that are
themselves “operations authorized by the United States
mining laws,” there would be no need for the relational
phrase, “in connection with.” But where this phrase was
included, it must be given effect. United States v. Nature,
898 F.3d 1022, 1024 (9th Cir. 2018) (“We construe
regulations, like statutes, to give effect to every word when
possible.”). The only reasonable reading is that inclusion of
“in connection with” expands the application of Part 228A to
more than just activities that themselves are “operations
authorized by the United States mining laws.”

Because a plain reading of Section 228.1 provides that
Part 228A applies to the deposit of waste rock and tailings
resulting from Rosemont’s proposed open pit mine, it was not
arbitrary and capricious for the USFS to apply these
regulations when reviewing and approving Rosemont’s plan.
See 36 C.F.R. § 251.50 (explaining Part 251 regulations apply
to all uses of forest land, “except those authorized by the
regulations governing . . . minerals (part 228)”); see also
United States v. Hicks, No. MCR 08-5050-M-JCL, 2009 WL
256419, at *2 (D. Mont. Jan. 9, 2009) (rejecting § 251’s
applicability when someone “is conducting a mining
operation” because the Part 228A regulations apply and
mining activities are specifically “excepted” from § 251).
Requiring the USFS to apply the Part 251 regulations also
undermines both the longstanding policy favoring mineral
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 69

development and its regulatory authority over mining
activities.

Part 251 prohibits surface uses of forest land that involve
“disposal of solid waste.” 36 C.F.R. § 251.54(e)(1)(ix). Waste
rock and tailings are solid waste. See id. § 228.8(c). Thus,
seemingly any deposit of organic waste resulting from mining
necessarily would be denied under Part 251. See id.
§ 251.54(e)(1)(iv). Moreover, limiting the deposit of waste
materials to confirmed claim land means that miners must
deposit waste directly on top of valuable minerals. See
30 U.S.C. § 23; Cole v. Ralph, 252 U.S. 286, 295–96 (1920).
And if they do so, the deposit may still be deemed invalid
because burying valuable minerals not only defies common
sense, but it may invalidate the operator’s otherwise valid
unpatented claim. See United States v. Coleman, 390 U.S.
599, 602 (1968) (“[T]o qualify as ‘valuable mineral deposits,’
the discovered deposits must be of such a character that ‘a
person of ordinary prudence would be justified in the further
expenditure of his labor and means . . . in developing a
valuable mine.’”). All of this is contrary to federal mining
policy.8 30 U.S.C. § 21a. And the Supreme Court has
instructed that “[w]e should not lightly conclude that
Congress enacted a self-defeating statute.” Quarles v. United
States, 139 S. Ct. 1872, 1879 (2019) (rejecting interpretation
that would “thwart the stated goals” of the statute). Finally, it
does not make sense to apply the Part 251 regulations to

8
There is also some historical evidence that depositing mining-related
organic waste materials on public land was accepted. See, e.g., Conway v.
Fabian, 89 P.2d 1022, 1029 (Mont. 1939) (“The owner of tailings may
deposit them either upon the public domain or on lands of which he has
possession.”); Esmeralda Water Co. v. Mackley, 208 P.2d 821, 824 (Nev.
1949) (“[T]itle to tailings is not lost by their deposit upon open and
unoccupied public domain.”).
70 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS

activity inherently connected to mining where those
regulations do not impose the environmental-protection
requirements contained in Part 228A that were specifically
crafted to address the impact of mining activity on forest
land. Indeed, the implication of such result seems to run
contrary to the very interests that Plaintiffs seek to advance.

There is no doubt that the Mining Law itself leaves many
ambiguities, including where mining waste can be deposited.
There is also no doubt that the Mining Law has been widely
criticized, understandably so, and that Congress has failed to
act. But the USFS has taken steps to fill the gaps left by
Congress by promulgating formal regulations and developing
policies based on its interpretation of the Mining Law and
other relevant statutes. Here, Plaintiffs challenge the
application of Part 228A to Rosemont’s proposed deposit of
waste rock and tailings on forest land, but they do not
challenge the substance of Part 228A or USFS’s authority to
promulgate these regulations. With no such challenges, this
court has no occasion to address these issues, only to apply
the regulations as written.

V. CONCLUSION

Because I conclude that Part 228A applies as a matter of
law to Rosemont’s proposed placement of waste rock and
tailings resulting from its open pit mine onto open forest
lands and that the district court erred in concluding that the
USFS acted arbitrarily and capriciously in applying Part
228A in its approval of these activities, I would reverse the
district court’s decision. The question remains, however,
whether the USFS’s approval of the Barrel Alternative was
proper under Part 228A because the district court failed to
assess the agency’s decision under these regulations.
 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 71

Therefore, I would remand for the district court to review the
USFS’s decision under the proper regulatory scheme in the
first instance.

I respectfully dissent.