James F. Clark, Alaska Bar #6907025 Law Office of James F ... · Chilkat Indian Village of Klukwan...

Defendant Intervenors’ BRIEF IN OPPOSITION TO PLAINIFFS’ MOTION FOR SUMMARY JUDGMENT

Chilkat Indian Village of Klukwan et al. v. BLM et al. Case No. 3:17-cv-00253-TMB

James F. Clark, Alaska Bar #6907025 Law Office of James F. Clark 1109 C Street Juneau, Alaska 99801 Tel: 907-586-0122 Fax: 907-586-1093 [email protected]

Attorney for Defendant-Intervenors

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

CHILKAT INDIAN VILLAGE OF KLUKWAN; SOUTHEAST ALASKA CONSERVATION COUNCIL; LYNN CANAL CONSERVATION; and RIVERS WITHOUT BORDERS, a project of TIDES CENTER,

Plaintiffs,

v. BUREAU OF LAND MANAGEMENT; BRIAN STEEDin his official capacity as Acting Director of the Bureau of Land Management; KAREN MOURITSEN, in her official capacity as Acting Alaska State Director of the Bureau of Land Management; and DENNIS TETZEL, in his official capacity as Field Manager of the Bureau of Land Management Glenallen Field Office,

Defendants.

and

ALYU MINING CO., INC., HAINES MINING and EXPLORATION, and CONSTANTINE NORTH, INC. (CONSTANTINE),

Defendant-Intervenors

DEFENDANT INTERVENORS’ BRIEF IN OPPOSITION TO PLAINTIFFS’MOTION FOR SUMMARY JUDGMENT

Case No. 3:17-cv-00253-TMB

Case 3:17-cv-00253-TMB Document 57 Filed 09/06/18 Page 1 of 48



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TABLE OF CONTENTS TABLE OF AUTHORITIES………………………………………………………. iii

INTRODUCTION………………………………………………………….……..…. 1

STATEMENT OF FACTS………………………………………………….……..….2

I. SUMMARY OF ARGUMENT………………………………….………... 4

II. STANDARD OF REVIEW………………………………………………...8

A. Summary Judgment and Judicial Review of Final Agency Action……………………………………………………8

B. Definitions of Connected Activities and Cumulative Impacts……………………………………………….…….9

III. ARGUMENT……………………………….……………………….……...10

A. THE LAW DOES NOT REQUIRE BLM TO ANALYZE ENVIRONMENTAL IMPACTS FROM POTENTIAL MINE DEVELOPMENT BEFORE AUTHORIZING A MINERAL EXPLORATION PLAN OF OPERATIONS THAT MAY LEAD TO DISCOVERY..……………………………….…………….……….11

1. Whether to Withdraw an Area from Mining Is A Policy Issue to

Be Made Solely by the Secretary or the Secretary’s Office Pursuant To Section 204 of FLPMA (43 U.S.C.§1714 (a)) ………………………..…11

2. SEACC Lacks Prudential Standing to Raise This Issue Because It Is Inextricably Intertwined with the Mining Act of 1872….…….13

3. SEACC Waived, or Failed to Exhaust Its Administrative Remedies Regarding, the Argument by Failing to Raise It with the BLM During the Plan of Operations Approval Process……………..…...14

4. BLM May Issue a Mineral Exploration Plan of Operations Without Making a Validity Determination……………………………..….….16

5. It Is Not Necessary to Retain the Option of Withdrawing

the Project Area From Mining to Protect the Environment……..……… …19




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6. Conclusion…………………………………………………..………………………...20

B. THE COURT SHOULD DEFER TO BLM’S DETERMINATIONS THAT THE APPROVED MINERAL EXPLORATION PLAN OF OPERATIONS HAD A UTILITY INDEPENDENT FROM MINE DEVELOPMENT AND THAT MINE DEVELOPMENT WAS NOT REASONABLY FORESEEABLE FROM APPROVAL OF A

MINERAL EXPLORATION PLAN OF OPERATIONS 2017 EA at 12-13; AR 3674-3675; 2016 Decision Record at 5; AR 2126………………………………….20

1. A Significant Portion of SEACC’s Case Is Moot .................................................. 21

2. A Significant Portion of SEACC’s Case Is Not Ripe for Consideration…..……..22

3. NEPA Does Not Support SEACC’s Claims……………………………………...24

a. NEPA Is a Procedural, Not a Substantive Statute……………………….…...24

b. BLM’s Determinations that Mineral Exploration Has a Utility Independent from Mine Development and that It Cannot be Reasonably Foreseen that Mineral Exploration Will Result in Mine Development Are Entitled to Deference ......................................................................................................... 24

c. The Mineral Exploration Approved by the BLM in this Case Has

A Utility Independent of Mine Development and Thus Is Not A Connected Action... ………..…………..…..………………….………….28

d. Whether Mine Development Will Result from Mineral

Exploration Is Speculative and Not Reasonably Foreseeable and Thus the EAs’ Cumulative Impact Analyses Were Not Required to Include the Potential Environmental Impacts from the Potential Development of a Hypothetical Mine………….31

e. The Environmental Impacts from Mine Development

Cannot Be Analyzed Until Mineral Exploration Has Determined the Final Dimensions and Location of the Orebody, Mining Method, Process Facility and Waste Management Plan As Well As the Nature of the Orebody Being Developed….……..…….….34

IV. REMEDIES




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A. The Court Should Not Vacate the Decision Documents Even if There Is a Legal Infirmity………………………………….…35

B. SEACC Does Not Meet the Criteria for an Injunction……………,,,,,,,,...…..35

V. CONCLUSION……………………………………………………..……..39

TABLE OF AUTHORITIES

CASES

Abbott Labs v. Gardner, 387 U.S. 136, 148-49 (1967)………………………………………….24

Cal. ex rel. Imperial Cnty. Air Pollution Control Dist. v.

U.S. Dept. of the Interior, 767 F.3d 781, 795 (9th Cir.2014)……….….7

Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 994 (9th Cir. 2012)……….35

Center for Environmental Law and Policy v. Bureau of Reclamation, 655 F.3d. 100, 1011 (9th Cir. 2011)……………………………………33

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984)……………………………………………………25

City and County of San Francisco v. United States, 130 F.3d 873 (9th Cir. 1997)……………………………………….…8-9

Coleman v. United States,

390 U.S. 599 (1968)……………………………………………………..5

Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988)……………………..……………17, 18, 20

Converse v. Udall,

399 F.2d 616,618 (9th Cir. 1968)…………………………….………….5

CTIA-The Wireless Ass’n v. FCC, 530 F.3d 984, 988 (D.C. Cir. 2008)…………………………………23-24

Dept. of Transp. v. Public Citizen,

541 U.S. 752, 764-765 (2004)…………………………………….……15

Eason Land Co., LLC v. Secretary of United States Department of Interior, WL13661540 (D. Oregon 2015)…………………………………….…16




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Envtl. Protect. Info. Ctr. v. Forest Service 451 F.3d 1005, 1014 (9th. Cir. 2006)………………………………………33

Freeman v. U.S. Dep’t of the Interior, 83 F.Supp.3d 173 (D.D.C. 2015……………………………………………17

Friends of the Earth v. Bergland,

576 F.2d 1377 (9th Cir. 1988)………………………………………………21

Friends of Southeast’s Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998) ....................................................................... 18

Great Basin Mine Watch v. Hankins,

456 F.3d 955, 969 (9th Cir. 2006)……………………………………15-16, 29

Havasupai Tribe v. Provencio, 876 F.3d 1242, 1254 (9th Cir. 2017)…………………………….……..…6, 14

Idaho Sporting Congress, Inc. v. Rittenhouse,

305 F.3d 957, 965 (9th Cir 2002)……………………………………………15

Jones v. National Marine Fisheries Service, 741 F.3d 989, 1000 - 1001 (9th Cir. 2013)………...……………………7-8, 32

Kleppe v. Sierra Club,

427 U.S. 390, 410 n.20 (1976)……………………………………………….31

Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008), aff’d, 629 F.3d 1074 (9th Cir. 2010)…………………………………………9

Lara v. Secretary of Interior,

820 F.2d 1535 (9th Cir. 1987)……………………………………………….28

League of Wilderness Defenders v. Connaughton, 752 F.3d. 755, 762 (9th Cir. 2014)…………………………………………. 31

Marsh v. Oregon Natural Res. Council,

490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)…………….…24

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., Inc. 453 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)……………………9




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Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 658 (2007)……………………………………….……………….9

Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir. 1995)……………………………………………………35

Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs., 384 F.3d 1163, 1170 (9th Cir. 2004)……………………………………………..9

Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894 (9th Cir. 2002)………………………………………………29

Natural Res. Def. Council v. Nat’l Marine Fisheries Serv.,

421 F.3d 872, 877 (9th Cir. 2005) .......................................................................... 9

North Idaho Community Action Network v. U.S. Dept of Transp., 545 F.3d 1147, 1156 n.2 (9th Cir. 2008) ................................................................ 15

Northern Alaska Environmental Center v. Kempthorne,

457 F.3d 969, 980 (9th Cir. 2006)…………………………………………………31

Northern Alaska Environmental Center v. Lujan, 872 F.2d 901, 903 (9th Cir. 1989)……………………………….…..…7, 16, 18, 19

Nw. Res. Info. Ctr. v. NMFS, 56 F.3d 1060, 1068-69 (9th Cir. 1995)……………….……. .................. ........29-30

Northern Plains Resource Council v. BLM,

Fed. Appx. (9thCir.2018) (2018WL1060564)…………………………….……8

Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 729-30, 733 (1998)……………….……………………………….23

Or. Nat. Res. Council v. Goodman,

505 F.3d 884, 897 (9th Cir. 2007). ........................................................................ 27

Pac. Coast Fed of Fishermen’s Ass’ns v. Blank 693 F.3d 1084, 1098 (9th Cir. 2012) .................................................................... 27

Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed. 2d 351 (1989).. ............................ 24




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Sierra Club v. Blank, 786 F.3d 1219, 1225-1226 (9th Cir. 2015) ............................................................. 29

Sierra Club v. Penfold,

857 F.2d 1307, 1318 (9th Cir. 1988) .................................................................... 21 Sylvester v. U.S. Army Corps of Eng'rs, 884 F.2d 394, 400 (9th Cir.1989) ................................................................................. 30 Te-Moak Tribe of Western Shoshone of Nevada v. Department of Interior 608 F.3d 592, 600 (9th Cir. 2010) ................................................................................. 34 United States v. Chemical Foundation, Inc., 272 U.S. 1, 15 (1926)………….……………..…………………………………… 20, 37

United States v. Mead Corporation, 533 U.S. 218, 229 (2001) ............................................................................................... 25

Westlands Water Dist. v. U.S. Dep’t. of Interior, 376 F.3d 853, 877 (9th Cir. 2004)………………..……………………………………… 3 Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9th Cir. 2000) .................................................................................... … 29

IBLA CASES

Bill Barrett Corporation, 177 IBLA 214 (2009)……………………………………………………………………..29

Center for Biological Diversity,

189 IBLA 117, 121-122 (2016)…………………………………………......…….23, 26, 30 Concerned Citizens for Responsible Mining,

131 IBLA 257, 266 (1994)…………………………………………….………...…….29, 34 Missouri Coalition for The Environment Heartwood,

172 IBLA 226, 246-247 (2007) WL 3353547 (2007)……………………..….……………8 Rocky Mountain Pipeline Trades Council,

149 IBLA 388, 400 (1999)………………………………………………..……………… 30 W. Shoshone Def. Project,

160 IBLA 32, 56 (2003)………………………………………………………..….………17




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FEDERAL STATUTES Administrative Procedures Act

5 U.S.C. § 704……………………………………………………………………............…6 5 U.S.C. § 706…………………………………………………………………….............8,9

Federal Land Policy and Management Act – 43 U.S.C. §§ 1701 et seq. ……………………………………………………....1,3,5,7,11,24 43 U.S.C. § 1702(j)………………………………………………………………….…... 6,11 43 U.S.C. § 1714(a)..………………...………………………………………….........5, 11,12 43 U.S.C. § 1714(c)(1)……………………………………………...… …………..………12 43 U.S.C. § 1732(b)……………………….……………..…………… …………..……7, 25

General Mining Law of 1872 30 U.S.C. §§ 22 – 42……………………………………..……… …1, 3, 5, 6, 11, 13,15, 16

National Environmental Policy Act 42 U.S.C. § 4332………………………….1, 6, 7, 8, 10, 11, 13, 16, 17, 18, 20, 21, 22, 24, 35

REGULATIONS CEQ Regulations

40 C.F.R § 1508.25(a)(1)…….……………………………….…………………………10,18 40 C.F.R §1508.7…………………………………………………………………….….10,18

Federal Land Policy and Management Act Regulations

43 C.F.R. §§ 3809 et seq…………………………………………………...……...11,12,20,25 RULES

Fed. R. Civ. P. 56 (a)…………………………………….………………………………………...…8 Local Rule 16.3(c)(2)…………………………………………………………………………….…...1 OTHER AUTHORITIES 45 Fed. Reg. 78,902, 78903 (Nov. 26, 1980)……………………………………….…….………..16 Delegation Part 235 Bureau of Land Management Chapter1 General Program Delegation, Director, Bureau of Land Management: 1. 2. C. …………………………………..……………5, 12


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Chilkat Indian Village of Klukwan et al. v. BLM et al. Case No. 3:17-cv-00253-TMBDefendant Intervenors’ BRIEF IN OPPOSITION TO PLAINIFFS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This is a case of first impression asking whether the National Environmental Protection

Act (NEPA) 42 U.S.C. § 4332 requires the Bureau of Land Management (BLM) BLM to

analyze the environmental impacts from potential mine development when authorizing a

mineral exploration Plan of Operations (PoO). Plaintiffs (hereinafter collectively “SEACC”)

claim that such an analysis is required because: “[B]y deciding to approve exploration, BLM

authorizes activities that may lead to the discovery of a valuable mineral deposit, creating

private rights that constrain BLM’s authority to fully protect the area through withdrawal once

mine development is proposed.” SEACC Br. at 27.

As BLM’s 2017 Environmental Analysis (EA) makes clear at pages 11 - 13; AR 3673

– 3675, SEACC’s argument mistakenly conflates mineral exploration and mine development.

Based on this mistaken conflation, SEACC asks the Court to require BLM: 1) to withhold

approval of a mineral exploration PoO, that it would otherwise approve, in order to prevent

Constantine from discovering a valuable mineral deposit under the General Mining Law of

1872 (30 U.S.C. §§ 22 – 42) (Mining Act); 2) while BLM admits that it would be forced to

speculate (2017 EA at 13; AR 3675) about the potential environmental impacts of an

unproposed, hypothetical mine. Because the BLM does not have authority or discretion under

the Mining Act or the Federal Land Management Policy Act (FLPMA) (43 U.S.C. §§ 1701 et

seq.) to withhold approval of a mineral exploration PoO on the ground that an explorer may

make a discovery under the Mining Act, SEACC’s claim is without merit and its Motion for

Summary Judgment should be denied.1

1 Local Rule 16.3 (c)(2) deems Defendants principal Brief in Opposition as a Cross Motion for Summary Judgment.


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STATEMENT OF FACTS

The Palmer Project is located within the Haines Borough on State selected land to

which BLM’s 2008 Ring of Fire Resource Management Plan and the Haines Borough

Comprehensive Plan apply. (2016 EA at 1-8 – 1-13; AR 1923 – 1928). The Palmer Project is

in a mountainous area approximately 34 miles northwest of Haines, Alaska (population 2,500)

that extends to the Canadian border. There has been placer mining in the area (known as the

Porcupine Mining District) commencing in the late 1890s. A history of mining in the District is

set out in the Cultural Resource Survey Report prepared for BLM as part of the 2016

Environmental Assessment (EA) for the mineral exploration PoO. (AR 1035-1046).

Between 1969 and 1983 Haines resident and self-taught prospector Merrill Palmer and

various colleagues located the 340 federal claims at issue in this case. From 1969 to 1998

Palmer contacted over 20 mining companies. Sixteen mining companies held leases to explore

the claims, eight of which engaged in exploration through core drilling. Bear Creek Mining and

Exploration, the largest exploration company in the United States, leased the property from

1994 until 1997 when that company was acquired by Rio Tinto which dropped the lease.

(Palmer Declaration at Par. 15). (Exhibit 1). (Dckt. 16).

Each of the companies turned back the lease to Merrill Palmer’s company – vividly

illustrating that the BLM is correct in asserting that mineral exploration does not normally lead

to mine development. (2017 EA at 12; AR 3674). Constantine’s corporate predecessors and

Constantine have held the lease to explore the claims since December 31, 1997. (Palmer

Declaration at Par. 17). (Exhibit 1). (Dckt. 16).

Access to the Federal claims of the Palmer project has historically been by helicopter from a base

about 8 miles, as the crow flies, from the exploration area. Road access from an existing logging road was


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planned.in order to more safely access, and regress from, the mining claims and exploration area. (2016

EA at 1-7; AR 1922). There is an existing, now overgrown, cat trail access constructed in 1977- 1978 by

Merrill Palmer, the claims owner. The Constantine road followed the cat trail where practical (Green

Declaration at Par.13) (Exhibit 2). (Dckt. 17).

In 2014 Constantine constructed a road from the existing logging road under a State

permit on State claims towards the Federal claims under BLM jurisdiction. Pursuant to a Notice

level categorical exclusion, BLM authorized Constantine to disturb up to five acres under which it

extended the State permitted road for 1.2 miles on its leased Federal claims. (2016 EA at 1-7;

AR 1922). To more safely access the Federal mining claims, on August 18, 2016 the BLM

approved Constantine’s PoO for a 2.5 mile extension of the road and exploration sites for 40

drill holes. (2016 Decision Record; AR 2122 – 2128). Pursuant to the September 21, 2017 BLM

Decision Record, Constantine constructed another 800’ of road for exploration access to the

Project in 2017 which generally followed the Palmer cat trail. (Green Declaration at Par.13).

(Exhibit 2). (Dckt . 17) . These approvals were conditioned on Constantine meeting certain

environmental Stipulations set out in the EA. (2016 Decision Record; AR 2123; 2016 EA

Stipulations AR 3687 – 3690).

In its 2016 EA BLM explained that “[t]he General Mining Law of 1872, as amended

(30 U.S. Code [USC] 2), the Federal Land Management Act (FLPMA); and the 2008 BLM

Ring of Fire Resource Management Plan establish the need for BLM’s action.” (EA at 1-7; AR

1922). The Ring of Fire Resource Management Plan is an areawide FLPMA Resource

Management Plan that was prepared pursuant to an Environmental Impact Statement (EIS).

BLM made it clear in the 2016 EA that Constantine’s exploration plan conforms to BLM’s


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2008 Ring of Fire Resource Management Plan and other land management plans:2

Several land and resource management plans are relevant to the Project Area, including 2008 Ring of Fire Resource Management Plan (BLM 2008a) and the Haines Borough 2025 Comprehensive Plan. Both of these plans recognize mineral exploration and mining activities as important uses of the land and resources within the Project Area. Adjacent lands include those managed by the Haines State Forest Management Plan (ADNR 2002a) and the surface and mineral estate owned and managed by the Alaska Mental Health Trust Authority (Trust). (2016 EA Section 1.4 at 1-8 (AR 1923)).

BLM provided further evidence that Constantine’s PoO was subject to the area-wide FLPMA Ring

of Fire Resource Management Plan and the PoO by applying four pages of specific management

decisions and mineral goals from the Ring of Fire Resource Management Plan to Constantine’s

mineral exploration PoO. (2016 EA at 1-8 and 1-9 through1-13. AR 1923 – 1928).

SEACC failed to appeal the management decisions and mineral goals for the Ring of Fire

RMP or their application to the Project Area. SEACC was advised of its rights to appeal and to

seek a stay of the BLM’s decisions in both the 2016 and 2017 Decision Records, (2016 Decision

Record AR 2127 - 2128), but did not do so. SEACC brought this action on December 4, 2017

after the roads had been constructed and after a significant amount of exploration drilling had

occurred.

I. SUMMARY OF ARGUMENT:

SEACC’s Motion raises two distinct issues: 1) “Given the constraint discovery can

impose on BLM’s withdrawal authority [of the Project area]” must BLM analyze potential

environmental impacts of potential mine development before authorizing mineral exploration

activity because it may lead to a “discovery”3 under the Mining Act? SEACC Br. at 30; and 2)

2 BLM’s 2017 Decision to approve the road extension was also “based on the Ring of Fire Record of Decision and Approved Resource Management Plan (July 2006) and a site-specific analysis.” (2017 Decision Record at 2; AR 3656). 3 There is a "discovery" of minerals if the claimed mineral deposit is valuable enough that a


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Should the Court defer to the BLM’s explanations: a) why Constantine’s exploration PoO has

utility independent of mine development and thus is not a connected action, thereby making it

unnecessary to describe the environmental impacts of mine development in the PoOs and b)

that approval of a mineral exploration PoO did not make mine development reasonably

foreseeable, thereby making it unnecessary to describe the environmental impacts of mine

development in the PoOs’ cumulative impacts analysis? (2016 EA 12 – 13; AR 3674 – 3675).

For the reasons given below SEACC’s Motion for Summary Judgment is without merit

and should be denied.

FIRST ISSUE: THERE ARE FIVE REASONS WHY THE COURT SHOULD DENY SEACC’S CLAIM THAT BLM MUST ANALYZE THE ENVIRONMENTAL IMPACTS FROM POTENTIAL MINE DEVELOPMENT WHEN AUTHORIZING A MINERAL EXPLORATION PoO.

a. Withdrawal from Mining Is A Policy Issue That Has Not Been Delegated to the BLM.

Whether to withdraw an area from mining is a policy issue to be made solely by the

Secretary or the Secretary’s Office in accordance with Section 204 of FLPMA. (43 U.S.C.

§1714 (a)). BLM has not been delegated authority to withdraw the Project Area from mining.4

Consequently, BLM did not have the authority or discretion to withhold approval of an

otherwise allowable mineral exploration PoO in order to prevent Constantine from making a

discovery of a valuable mineral deposit under the Mining Act.

prudent person would be justified in expending further labor and money to develop the minerals. Generally, this means that the miner must be able to make a profit by extracting the minerals and bringing them to market (called the "marketability test"). Coleman v. United States, 390 U.S. 599 (1968). “But this does not mean that the locator must prove that he will in fact develop a profitable mine.” Converse v. Udall 399 F.2d 616, 622 (9th Cir. 1968). 4 Withdrawals are not “from mining” but, rather, from “settlement, sale, location, or entry from some or all of the general land laws.” 43 U.S.C. § 1702(j). The phrase “withdrawal from mining” is used in this Brief as a shorthand means of conveying the practical effect of the application of 43 U.S.C. § 1702(j) to this case that SEACC is seeking. See Delegation Part 235, Chapter 1, General Program Delegation Director Bureau of Land Management, 1.2 (C).


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b. SEACC Does Not Have Prudential Standing to Raise This Issue

SEACC’s argument that NEPA requires an environmental analysis of the environmental

impacts of mine development as part of a mineral exploration PoO approval process (because

discovery might occur during the mineral exploration PoO) completely depends upon BLM

making mandatory assumptions that: i) discovery under the Mining Act had not occurred prior to

approval of a mineral exploration PoO; ii) but might occur during exploration, thereby

requiring BLM to determine the environmental impacts of mine development before such

discovery occurs. SEACC does not have the prudential standing under the Mining Act to require

BLM to make such mandatory assumptions. Havasupai Tribe v. Provencio, 876 F.3d 1242,

1254 (9th Cir. 2017).

c. SEACC Waived This Issue and Failed to Exhaust Its Administrative Remedies

SEACC’s claim that BLM must analyze the environmental impacts from potential mine

development when authorizing a mineral exploration PoO in order to retain its discretion to

withdraw the Project Area from mining was not made by SEACC during the course of the

PoO administrative proceedings. So, BLM never had an opportunity to answer this claim or

explain that it lacked the authority to make such a withdrawal. SEACC thus waived this specific

issue and failed to exhaust its administrative remedies with respect to it.

d. The Ninth Circuit Has Held That the BLM Is Not Required to Determine Whether an Applicant Has Made A Discovery Before Approving A PoO

The Ninth Circuit dealt with the precise issue SEACC raises in Northern Alaska

Environmental Center v. Lujan, 872 F.2d 901 (9th Cir. 1989) and held that the BLM is not

required to decide whether a discovery had occurred before authorizing a mineral exploration

PoO.


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e. Withdrawing the Project Area Is Not Needed to Protect the Environment

FLPMA and its regulations, administered by BLM, and the permitting system already

protect the Project Area from “unnecessary or undue degradation.” 43 U.S.C. § 1732(b). If

Constantine ever applies for permits to develop a mine that would result in “unnecessary or

undue degradation” to the Project Area, then the permits would be denied. Accordingly, it is not

necessary to make new NEPA law to protect the environment.

SECOND ISSUE: THE COURT SHOULD DEFER TO BLM’S WELL SUPPORTED DECISION WHY THE APPROVED MINERAL EXPLORATION PLAN OF OPERATIONS HAD A UTILITY INDEPENDENT FROM MINE DEVELOPMENT AND THAT MINE DEVELOPMENT WAS NOT REASONABLY FORESEEABLE FROM APPROVAL OF A MINERAL EXPLORATION PLAN OF OPERATIONS. (2017 EA at 12-13; AR 3674 – 3675).

a. It is settled NEPA law that if an action has independent utility then it is not

connected to other actions that would require consideration of the actions in a

single NEPA document:

The crux of the test is whether `each of two projects would have taken place with or without the other and thus had independent utility.' Cal. ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dept. of the Interior 767 F.3d 781, 795 (9th Cir.2014) (citations omitted).

b. It is also settled NEPA law that:

An agency need only consider “[t]he cumulative effects of projects that [the applicant] is already proposing.” Lands Council v. Powell, 395 F.3d 1019, 1023 (9th Cir.2005). “For any project that is not yet proposed, and is more remote in time,” by contrast, “a cumulative effects analysis would be both speculative and premature.” Id. if a future activity is not reasonably foreseeable from the activity for which a NEPA review is being conducted then it is not a cumulative impact. Jones v. National Marine Fisheries Service,741 F.3d. 989, 1000 (2013).

The Courts of this Circuit have consistently deferred to BLM’s factual expertise on

whether an action would have taken place without others and when the impacts of an action


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should be added to other past, present, and reasonably foreseeable future actions for

consideration in a single NEPA document. Northern Plains Resource Council v. BLM, Fed.

Appx. (9th Cir.2018). (2018WL1060564). Missouri Coalition for The Environment Heartwood,

172 IBLA 226, 246-247 (2007). WL 3353547 (2007).

Accordingly, the Court should defer to BLM’s determinations that: “The proponent is

still in the exploration stage; therefore, it is not reasonable foreseeable action to consider mining

in this analysis;” 2016 Decision Record at 5; AR 2126; and that: “Any assumption about the

scope of the mine, prior to a feasibility determination, would be speculative, considering that

mining is not automatically triggered by exploration.” (2017 EA 10 – 13 at 13; AR 3672 – 3675

at 3675).

II. STANDARD OF REVIEW

A. SUMMARY JUDGMENT AND JUDICIAL REVIEW OF FINAL AGENCY ACTION

A plaintiff seeking to challenge a federal agency’s compliance with NEPA must bring

its claim under the Administrative Procedure Act (APA), 5 U.S.C. § 706. Summary judgment

is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing an administrative agency

decision, ‘summary judgment is an appropriate mechanism for deciding the legal question of

whether the agency could reasonably have found the facts as it did.’” City & County of San

Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng’g Co.

v. INS, 753 F.2d 766, 770 (9th Cir. 1985)).

Under the APA, a court may set aside a final agency action if, after reviewing the

administrative record, the agency’s action is found to be “arbitrary, capricious, an abuse of


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discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Natural Res. Def.

Council v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir.2005). A decision is not

arbitrary or capricious if the federal agency explained its action by articulating a “rational

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto Ins. Co. Inc. 459 U.S. 29, 43 (1983); Nat’l Wildlife Fed’n v. U.S.

Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004).

The arbitrary and capricious standard is narrow and precludes a reviewing court from

substituting its own judgment for that of an expert federal agency. Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007); Motor Vehicle Mfrs., 463 U.S. at

43, 103 S.Ct. 2856. The Ninth Circuit’s en banc opinion in Lands Council v. McNair, 537 F.3d

981, 993 (9th Cir. 2008), aff’d, 629 F.3d 1074 (9th Cir. 2010), emphasized that reviewing

courts should be at their most deferential when an agency is addressing issues within its area of

special expertise, such as BLM’s determination in this case that mineral exploration has a

utility independent of mine development “because mining is not automatically triggered by

exploration,” and that because mineral exploration most often fails to lead to mine

development, the environmental impacts of mine development can only be speculated and are

thus not reasonably foreseeable at the time of approval of a mineral exploration. (2017 EA 12

-13; AR 3674 – 3675).

B. DEFINITIONS OF CONNECTED ACTIONS AND CUMULATIVE IMPACTS

Actions are “connected” or “closely related” if they: (i) automatically trigger other actions

which may require environmental impact statements; (ii) cannot or will not proceed unless other

actions are taken previously or simultaneously; [or] (iii) are interdependent parts of a larger action

and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(1). In determining


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whether an environmental review has been improperly segmented to avoid consideration of

connected actions, courts also have considered such factors as “whether the proposed project 1)

has logical termini; (2) has substantial independent utility; (3) does not foreclose the opportunity

to consider alternatives; and (4) does not irretrievably commit federal funds for closely related

projects.”

“Cumulative impacts” are those impacts that result from the incremental impact of the

action when added to other past, present, and reasonably foreseeable future actions regardless

of what agency or person undertake such action.” 40 C.F.R. § 1508.7.

III. ARGUMENT

The Argument below is broken in to two parts: Section A and its subparts address

SEACC’s contention that the BLM must conduct a full EIS to analyze the environmental

impacts from potential mine development during the mineral exploration PoO approval

process “because by deciding to approve exploration, BLM authorizes activities that may lead

to discovery of a valuable mineral deposit, creating private rights that constrain BLM’s

authority to protect the area once mine development is proposed.” SEACC Br. at 27.; and

Section B and its subparts (starting at page 20) responds to SEACC’s arguments: 1) that

mineral exploration and mine development are connected actions; and 2) that mine

development is reasonably foreseeable from mineral exploration; and 3) that for either of these

reasons, the environmental impacts of mine development should have been considered in the

NEPA document approving Constantine’s mineral exploration PoO.

A. THE LAW DOES NOT REQUIRE BLM TO ANALYZE ENVIRONMENTAL IMPACTS FROM POTENTIAL MINE DEVELOPMENT BEFORE AUTHORIZING A MINERAL EXPLORATION PoO THAT MAY LEAD TO DISCOVERY.

SEACC mistakenly conflates mineral exploration with mine development. SEACC Br. at


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21. From this false premise, SEACC contends that the 2016 and 2017 mineral exploration PoO

approval processes should have considered the potential environmental impacts of a

hypothetical min while “there was still time” for BLM to withdraw the Palmer Project area from

mining – i.e., before Constantine had made a discovery and had valid existing rights. (SEACC

Br. at 1-2, 27, and 30). SEACC thus argues that discovery will result in agency inability to

protect the Project Area from “unreasonable and undue degradation.”

As a matter of fact, “mining is not automatically triggered by exploration” (2017 EA at 13;

AR 3675). As a matter of law, BLM does not have the authority or discretion under FLPMA or

the Mining Act to withhold approval of a mineral exploration PoO, that would otherwise be

granted under FLPMA and NEPA, on the ground that the explorer might discover a valuable

mineral under the Mining Act. As a matter of law, BLM’s obligations under 43 C.F.R. §§ 3809

et seq. will protect the Project Area surface from “unreasonable and undue degradation”

There are five reasons why the Court should reject SEACC’s Argument:

1. WHETHER TO WITHDRAW AN AREA FROM MINING IS A POLICY ISSUE TO BE MADE SOLELY BY THE SECRETARY OR THE SECRETARY’S OFFICE PURSUANT TO SECTION 204 OF FLPMA. (43 U.S.C. §1714 (a)).

A withdrawal from “settlement, sale, location, or entry from some or all of the general

land laws” (43 U.S.C. § 1702(j)) is a policy decision that BLM has not been delegated the

authority to make. Only the Secretary, or a person delegated by the Secretary in his/her office

who has been appointed by the President and confirmed by the Senate, is authorized by

Congress to make a withdrawal and then, for not more than 20 years. 43 U.S.C. §§ 1714(a) and

(c)(1).

SEACC claims that: “The Secretary has delegated the authority to process withdrawals


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to BLM. 43 U.S.C 1714(a) (authorizing delegations of withdrawal authority); Dep’t of the

Interior, 603 Dep’t Manual 1, 2 (2005) (delegating authority to BLM).” SEACC Br. at 28.

SEACC’s entire argument is based on the incorrect premise that the delegation of authority to

process a withdrawal is the same as a delegation of authority to make a withdrawal:

BLM’s option to withdraw can be constrained, however, by the General Mining Law’s operation. The agency’s withdrawal authority can be narrowed by third-party actions beyond BLM’s control once the agency approves exploration activities that lead to a discovery. Specifically, the agency’s discretion to protect the Palmer Project area by a land withdrawal narrows at the point of discovery. SEACC Br. at 28-29. In fact, BLM has not been delegated authority to make such a withdrawal, and, thus,

cannot grant SEACC the relief it is requesting.5 Additionally, the BLM has no authority or

discretion under 40 C.F.R. § 3809 et seq. to deny a mineral exploration PoO to Constantine

that otherwise satisfies the regulations in order to prevent Constantine from making a

discovery under the Mining Act.

Moreover, the BLM has not advanced an environmental or any other reason why the

Project Area should be “withdrawn” to protect it from mining or other development. BLM made

no recommendation to the Secretary to withdraw the Project Area from mining activities within

the Project Area in the EIS that approved the 2008 Ring of Fire Resource Management Plan.

BLM expressly decided not to select the “No Action” alternative offered in the 2016 and 2017

PoO Decision Records (AR 2123; AR 3656) which would have achieved the “protection from

5 Effective Date 10/5/09 Series Delegation Part 235 Bureau of Land Management Chapter1 General Program Delegation, Director, Bureau of Land Management:

1. 2. The following authorities are NOT DELEGATED in the general authorities listed in 235 DM1.1:

C. The authority to issue, revoke, modify, or extend withdrawals or reservations of public domain lands.


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mining” that SEACC is seeking in this litigation. Instead, BLM decided that there would be no

significant environmental impacts to the Project Area by approving Constantine’s mineral

exploration PoOs. (2016 Finding of No Significant Impact 1 – 4 at 1; AR 2118 – 2121 at 2118).

Notably, SEACC never asked BLM to select the “No Action” alternative to obtain such a result,

nor did SEACC challenge BLM’s failure to do so – until now.

Given the foregoing, the proper avenue for deciding whether the Project Area should be

withdrawn from mining is either through the Secretary or Congress, not through the new

application of NEPA law to approval of a mineral exploration PoO that SEACC proposes here.

2. SEACC LACKS PRUDENTIAL STANDING TO RAISE THIS ISSUE BECAUSE IT IS INEXTRICABLY INTERTWINED WITH THE MINING ACT OF 1872

SEACC argues that it has standing to bring this action under NEPA based upon its

members’ ecological and other such interests and its interest “in a lawful public administrative

process.” SEACC Br. at 16-17. However, SEACC does not contend that it has, nor does it

have, prudential standing to force BLM to assume points in time when an explorer has not and

has made a discovery under the Mining Act. Yet, were the Court to grant SEACC’s claim,

BLM would be forced to make two mandatory assumptions about when a discovery had been

made under the Mining Act. SEACC’s argument would require BLM: 1) to process an

application for a mineral exploration PoO EA as if a discovery under the Mining Act had not

yet occurred; and 2) perform its NEPA analysis as if discovery would occur during exploration

and a mine would be developed as a result – thereby requiring a full EIS.

Not only does SEACC ask the Court to substitute its judgment for BLM’s, SEACC does

not have prudential standing to require the BLM to effectively make discovery determinations

under the Mining Act as part of the NEPA process for approving a mineral exploration PoO. In


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Havasupai Tribe v. Provencio, 876 F.3d 1242, 1254 (9th Cir. 2017) the Ninth Circuit held:

As the district court aptly reasoned, “‘The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions.’ This case presents the same situation in reverse[.]” Grand Canyon Tr., 98 F.Supp.3d at 1059 (quoting Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)). As a result, the Tribe and Trust lack prudential standing to claim violations of the Mining Act.

Just as the plaintiff in Havasupai Tribe lacked prudential standing to claim that the Forest

Service had improperly determined that certain mining claims were valid, SEACC lacks

prudential standing to force BLM to make non-discretionary discovery assumptions under the

Mining Act.

3. SEACC WAIVED OR FAILED TO EXHAUST ITS ADMINISTRATIVE REMEDIES REGARDING THIS ARGUMENT BY FAILING TO RAISE IT WITH THE BLM DURING THE PoO APPROVAL PROCESS

In Paragraphs 70, 75, 77, 78, and 82 of its Complaint SEACC claimed that comments on

the EA from the Plaintiff groups pointed out that “the agency should have considered connected

and cumulative impacts beyond the time horizon of the Exploration Plan, including the effects of

development.” SEACC Complaint at Par. 75. However, until it filed its Complaint, SEACC

failed to assert that the environmental impacts of mine development had to be considered during

Constantine’s mineral exploration PoO approval process because “BLM’s ability to protect

project area lands, including by withdrawal, would be substantially constrained or lost” after

Constantine made a discovery. SEACC Complaint at Par. 8. See also Pars. 86 – 89.

The declarations attached to SEACC’s brief (Exhibits 34 - 42 to SEACC’s Brief) do not

raise this claim. Despite the opportunity to make this argument during or through an appeal of

BLM’s approvals of the 2016 and 2017 PoOs, SEACC failed to do so. SEACC failed to raise

this claim while the 2.5 mile road extension and 800’ road extension and exploratory drilling


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approved by the 2016 and 2017 Decision Records were being constructed.

SEACC now argues, in effect, that the mineral exploration PoO EA should have

considered/analyzed the alternative of withdrawing the Palmer project area from mining before

Constantine made a discovery under the Mining Act. However, BLM did not have an

opportunity to address or respond to this claim during the administrative process, or explain

that it did not have the authority to make such a withdrawal, because SEACC never raised it.

In Dept. of Transp. v. Public Citizen, 541 U.S. 752, 764-765 (2004) the Supreme Court

held that failure to identify alternatives during the administrative comment period forfeited any

objection concerning the agency’s failure to discuss potential alternatives. The Court said that

unless a participant in the NEPA administrative process “alerts the agency” of all of its

concerns and objections during the administrative comment period, those concerns and

objections are waived. Id. At 764. See also North Idaho Community Action Network v. U.S.

Dept of Transp., 545 F.3d 1147, 1156 n.2 (9th Cir. 2008) (holding that any objection to

consider the alternative in question has been waived because the alternative in question was not

raised until after the comment period had closed).

In addition, this claim should be denied because SEACC failed to exhaust its

administrative remedies with respect to this issue. Before bringing an APA challenge in federal

court, a plaintiff must exhaust its available administrative remedies. Idaho Sporting Congress,

Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002). The APA’s exhaustion “requirement

applies to claims under NEPA.” Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th

Cir. 2006).

In the very similar case of Eason Land Co., LLC v. Secretary of United States

Department of Interior, 2015WL1538051 at 7 (D. Oregon 2015) (aff’d. 703 Fed.Appx. 498 (9th


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Cir. 2017) the Court observed:

It is undisputed that plaintiffs elected not to challenge the BLM’s decision by lodging a protest or filing an appeal or stay petition with the OHA, thereby rendering the EA and the corresponding FONSI final. (Citations omitted). If, as alleged in the complaint, plaintiffs perceived the EA as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, they were required to contest that decision before it became final in order to allow the agency to correct any mistakes and address all issues in the first instance. (Citations omitted).

In the same way, SEACC’s claim (that the BLM violated NEPA by failing to analyze the

potential environmental impacts from potential future development of the Palmer project

“while there was still time” to withdraw the Project area from mining) must be dismissed

because SEACC did not raise this specific issue during the administrative process.

4. BLM MAY ISSUE A MINERAL EXPLORATION PoO WITHOUT MAKING A VALIDITY DETERMINATION

The ability to engage in pre-discovery mining activities is a statutorily granted right

under the Mining Act. 30 U.S.C. §§ 22, 28. BLM’s authorization of surface use is not

dependent on the existence of a mining claim valid or otherwise, except on lands that are

withdrawn from operation of the Mining Law. 45 Fed. Reg. 78,902, 78903 (Nov. 26, 1980)

(“One does not need a mining claim to prospect or even mine on unappropriated Federal

land.”).

It follows that nothing in the Mining Act or its implementing regulations requires BLM

to assess claim validity as part of its PoO approval process: “BLM generally does not

determine the validity of the affected mining claims before approving a plan of operations.”

W. Shoshone Def. Project, 160 IBLA 32, 56 (2003). Freeman v. U.S. Dep’t of the Interior, 83

F. Supp. 3d 173 (D.D.C. 2015).

In Northern Alaska Environmental Center v. Lujan, 872 F.2d 901, 904 (9th Cir. 1989)


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plaintiffs argued “that under ANILCA the Secretary cannot approve a plan to operate on

national park land that is subject to an unpatented mining claim without first determining

whether it is valid.” The Ninth Circuit held:

We must decide whether Congress has imposed a duty upon the Secretary of the Interior, acting through the NPS (Secretary), to determine whether a discovery of valuable minerals has been made before approving a plan of operations for an unpatented mining claim on land within a national park. Because we conclude that none of the applicable statutes require the Secretary to conduct an on-site-field inspection and mineral examination to determine whether a valuable discovery has been made, we affirm. (Emphasis added). Northern Alaska Environmental Center v. Lujan, supra., at 903.

SEACC cites the earlier case of Conner v Burford, 848 F.2d 1441 (9th Cir. 1988) for

the proposition that: “NEPA required consideration of later surface disturbance at the leasing

stage, because the agency’s discretion to preclude later impacts would narrow before the next

decision point.” SEACC Br. at 26. From this SEACC contends that NEPA requires BLM to

make a determination of the environmental impacts of mine development before exploration

leads to discovery. SEACC Br. at 26 and 30.

That Conner does not change the result in Northern Alaska Environmental Center v.

Lujan is evidenced by the fact that the Ninth Circuit would have been fully aware of Conner,

but failed to mention it in its decision. Why? Because Conner dealt with whether “federal

agencies violated the National Environmental Policy Act of 1969 (Citations omitted) by selling

oil and gas leases without preparing an environmental impact statement or a comprehensive

biological assessment …” Conner, supra., at 1443

In Conner non-NSO lessees were granted a contractual right through a lease to use the

surface. The Court decided that, by granting surface rights by lease to the non-NSO lessees, the

government surrendered its “absolute right” to prevent development which constituted an


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irreversible and irretrievable commitment of resources that required an EIS.

The Conner Court did not purport to do more than describe the test for when an EIS is

required:

Thus, in this case we must decide whether the sale of any of the oil and gas leases within the two forests constituted an irreversible and irretrievable commitment of federal forest resources to surface-disturbing oil and gas activities that could have a significant affect on the environment. Conner, supra, at 1446.

Setting out the test for when an EIS is required is all that Conner was understood to do in later

Ninth Circuit cases:

Under Conner an EIS is not required unless an agency action constitutes an “irreversible and irretrievable commitment of resources,” which exists only where the government surrenders its “absolute right” to prevent the use of those resources.

Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1064 (9th Cir. 1998).

The “irreversible and irretrievable commitment of resources” test for preparing an EIS

is written into NEPA. NEPA §102 (2)(C)(v). The tests for connected actions and cumulative

impacts are set out in the CEQ regulations (40 C.F.R. § 1508.25(a)(1) and 40 C.F.R. § 1508.7

respectively; See page 7 this Brief) and case law. SEACC’s argument attempts to replace these

tests for connected actions and cumulative impacts with the NEPA test for when an EIS must be

prepared. SEACC cites no authority and provides no rationale for using the NEPA test for when

an EIS must be prepared to determine when there are connected actions or cumulative impacts.

Accordingly, Northern Alaska Environmental Center v. Lujan, supra., applies and BLM

was not required “to conduct an on-site-field inspection and mineral examination to determine

whether a valuable discovery has been made” prior to approving the PoO. Northern Alaska

Environmental Center v. Lujan, supra., at 9.


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5. IT IS NOT NECESSARY TO RETAIN THE OPTION OF WITHDRAWING THE PROJECT AREA TO PROTECT THE ENVIRONMENT

SEACC’s argument essentially contends that discovery equals loss of BLM’s ability to

protect the Project Area from unreasonable and undue degradation. It is based upon the

proposition that withdrawal of the Project Area from mining must be preserved when approving

a mineral exploration PoO because it may be the only way to mitigate the impacts from future

development of the Palmer Mine SEACC Complaint Par. 6. SEACC did not make this argument

during the administrative process and cites no case law or support for it now. It is demonstrably

not true:

1) even Plaintiff Rivers Without Borders commented: “While the currently proposed

actions are not themselves a reason for significantly raised environmental concern,

the ultimate goal of a large scale mine in this watershed is of great concern.” AR

1782;

2) selecting the “No Action” alternative in this case would have had the same

“exploration-prevention” effect on the 2016 and 2017 PoOs as withdrawing the Project

area from mining. Yet BLM did not select the No Action alternative because as the

BLM found in the 2016 FONSI (AR 2118 – 2121), the environmental impacts were

not significant; and

3) should development of the Palmer mine ever be proposed, its mine plan will either

meet federal and state environmental laws and permitting requirements or there will

be no mine. It will not matter whether or not discovery has occurred because without

the permits a Palmer mine could not be developed. As previously stated, the law

presumes that BLM will carry out its duties in accordance with the law. United


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States v. Chemical Foundation, Inc., 272 U.S. 1, 15 (1926); Conner v. Burford,

supra.at 1448.

6. CONCLUSION

In short, the Court should deny SEACC’s effort to create new law by explicitly or

implicitly arguing that the 2016 and 2017 EAs approving Constantine’s PoOs for mineral

exploration required either a validity determination or a full EIS review of potential mine

development as part of the mineral exploration PoO approval process. NEPA does not require

BLM: 1) to withhold approval of a mineral exploration PoO that otherwise qualifies for

approval under 40 C.F.R. § 3809 and NEPA; 2) to prevent Constantine from making a

discovery of a valuable mineral deposit under the Mining Act; 3) in order to force BLM to

speculate about whether the potential environmental impacts from potential development of a

hypothetical mine plan could so harm the Project Area environment that it should be

withdrawn from mining before discovery – particularly when BLM says “it is not reasonable

foreseeable future action to consider mining in this analysis” (2016 Decision Record at 5; AR

2126), and when BLM does not even have the authority to make such a withdrawal. This is a

political issue.

B. THE COURT SHOULD DEFER TO BLM’S WELL REASONED DECISION THAT THE APPROVED MINERAL EXPLORATION PLAN OF OPERATIONS HAD A UTILITY INDEPENDENT FROM MINE DEVELOPMENT AND THAT MINE DEVELOPMENT WAS NOT REASONABLY FORESEEABLE FROM APPROVAL OF A MINERAL EXPLORATION PLAN OF OPERATIONS. 2017 EA at 12 – 13; AR 3674 – 3675; 2016 DECISION RECORD at 5; AR 2126.

Assuming that the Court decides that BLM was not required to withhold Constantine’s

mineral exploration PoO to conduct a NEPA review of the potential environmental impacts of

potential mine development before Constantine made a discovery, the Court must decide


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whether or not to defer to BLM’s determinations that mineral exploration has a utility

independent of mine development and that mine development is not reasonably foreseeable

from mineral exploration.

The Court should deny SEACCs’ claims because a significant portion of SEACC’s case is

moot, SEACC’s claims are not ripe for consideration, and NEPA does not support them.

1. A SIGNIFICANT PORTION OF SEACC’S CASE IS MOOT

The 2.5 mile access road and the 800’ road extension authorized by BLM’s approval of

Defendant Intervenor Constantine’s 2016 and 2017 Plans of Operation (PoO) have been built.

SEACC was fully informed in BLM’s 2016 and 2017 Decision Documents of its rights to

appeal and to request a stay of these decisions prior to the beginning of road construction, but

it failed to avail itself of those opportunities. As the Court said in Sierra Club v. Penfold, 857

F.2d 1307, 1318 (9th Cir. 1988):

Here, even if we assume BLM’s decision making process is unlawful, no adequate remedy exists. Unlike a power transmission line, a completed mining operation cannot be moved. The impacts of the Plan mines are not remediable since we cannot order that the Plans be “unmined.” See Friends of the Earth v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1979) (challenge to approval of exploratory drilling for failure to comply with NEPA was moot where all work on the project had ceased).

Thus, SEACC’s request for injunctive relief with respect to the already constructed 2.5 mile

exploration road and the 800’ road extension is moot. Likewise, SEACC’s claim is moot to the

extent it requests injunctive relief from completed exploration activities that were approved by

the 2016 and 2017 PoOs.

Defendant Intervenors are not contending that the Court could not grant SEACC NEPA

process relief. However, process relief, such as requiring the removal of the road, under the

facts of this case would be unreasonable. SEACC did not contend in its Complaint or Motion


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that the road development or drilling adversely impacted the environment – its concerns were

directed at the potential environmental impacts of potential mine development.

Indeed, even though Plaintiff Rivers Without Borders commented that BLM should have

prepared an EIS to support approval of the PoO because mine development was an action

connected to, and reasonably foreseeable from, mineral exploration, Plaintiff Rivers Without

Borders nonetheless stated that “RWB believes if well managed and regulated, the proposed

activities in this EA pose minimal adverse effects on the Chilkat watershed.” Plaintiff, Rivers

Without Borders commented further:

While the currently proposed actions are not in themselves a reason for significantly raised environmental concern, the ultimate goal of a large scale mine in this watershed is of great concern.

Rivers Without Borders May 26, 2016 comments on 2016 PoO application. (AR 1782 – 1783).

2. A SIGNIFICANT PORTION OF SEACC’S CASE IS NOT RIPE FOR CONSIDERATION.

Paragraph 2 of SEACC’s Complaint’s Prayer for Relief (that Defendant Intervenor

Constantine’s exploration activities be enjoined until BLM complies with NEPA by describing

the environmental impacts of mine development) is not ripe for consideration because there

has been no proposal to develop a mine and because mine development is not reasonably

foreseeable from mineral exploration. While the 2008 Ring of Fire Record of Decision and

Approved RMP and Haines Land Use Plan authorize mining in the Project Area, no such site-

specific mining plan has been proposed by Constantine. BLM says development of a Palmer

Project mine is not reasonably foreseeable at this point. (2016 Decision Record at 5; AR 2126).

To determine whether an agency action is ripe for review, a court must consider: “(1)

whether delayed review would cause hardship to the Plaintiffs; (2) whether judicial


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intervention would inappropriately interfere with further administrative action; and (3) whether

the courts would benefit from further factual development of the issues presented.” Ohio

Forestry Ass’n, Inc.v. Sierra Club, 523 U.S. 726, 733 (1998).

These criteria are met in the case at bar. First, the 2016 and 2017 PoOs do not authorize

mine development. So, SEACC would not be harmed by waiting for BLM and permitting

agencies to study the potential environmental impacts of a mine development plan that has

actually been proposed. Even if discovery occurs any future effort to develop a mine will not be

permitted if it would cause unnecessary or undue degradation of the Project Area.

Second, should the Court grant SEACC’s Motion for Summary Judgment BLM would

be forced by its own admission to prematurely speculate (2017 EA at 13; AR 3565) about mine

development impacts before Constantine has conducted the exploration necessary to decide

whether to develop a mine and submitted a mine development plan and permit applications

from which the BLM could properly determine the environmental impacts. The vehicle for

such speculation would likely be a time consuming and expensive EIS, instead of the EA

normally needed for a mineral exploration PoO.

Third, the Court, the Federal Defendants, SEACC, and Defendant Intervenors would all

benefit from developing a record by going through the mine progression stages described by

the BLM in its 2017 EA. (AR 3672-3675). (“Any assumptions about the scope of the mine,

prior to a feasibility determination, would be speculative considering that mining is not

automatically triggered by exploration.” (Center for Biological Diversity, 189 IBLA 117, 121-

122 (2016)).

As the D.C. Circuit has observed, a case is not ripe if something more must happen

before the effects are felt in a concrete way by the party challenging the action. CTIA-The


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Wireless Ass’n v. FCC, 530 F.3d 984, 988 (D.C. Cir. 2008), citing Abbott Labs v. Gardner, 387

U.S. 136, 148-49 (1967). In this case the “something more” is an application by Constantine for

the environmental permits (and accompanying NEPA review) to develop a mine. As Rivers

Without Borders acknowledged in its comments on the 2016 mineral exploration PoO, it is not

the mineral exploration PoO currently before the Court that “is a reason for environmental

concern,” but “a large scale mine in this watershed” (AR 1782) for which there has been no

proposal and for which such a proposal “is not automatically triggered by exploration.”

3. NEPA DOES NOT SUPPORT SEACC’S CLAIMS.

a. NEPA IS A PROCEDURAL STATUTE, NOT A SUBSTANTIVE STATUTE

NEPA is a procedural statute that: aims to effectuate environmental policy, “not [by]

mandat[ing] particular results, but simply [by] prescrib[ing] the necessary process.” Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351

(1989); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851,

104 L.Ed.2d 377 (1989) (“NEPA does not work by mandating that agencies achieve particular

substantive environmental results.”).

b. BLM’S DETERMINATIONS THAT MINERAL EXPLORATION HAS A UTILITY INDEPENDENT FROM MINE DEVELOPMENT AND THAT IT CANNOT BE REASONABLY FORESEEN THAT MINERAL EXPLORATION WILL RESULT IN MINE DEVELOPMENT ARE ENTITLED TO DEFERENCE.

BLM is the agency charged with managing mining on federal land under FLPMA.

FLPMA directly amended the Mining Law by expressly subjecting mining claims to its

command that "[i]n managing the public lands, the Secretary shall by regulation or otherwise,

take any action necessary to prevent unnecessary or undue degradation of the public lands." (43

U.S.C. § 1732(b)). BLM has promulgated regulations to manage the impacts of mining on


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public lands. (43 C.F.R. §§ 3809 et seq).

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

was a landmark case in which the United States Supreme Court set forth the legal test for

determining whether to grant deference to a federal agency's interpretation of a statute which

it administers. The test is deferential: “whether the agency’s answer is based on a permissible

construction of the statute.” Chevron deference is appropriate where the agency can

demonstrate that it has the general power to make rules carrying the force of law and that the

challenged action was taken in the exercise of that authority and the agency’s interpretation is

reasonable.” United States v. Mead Corporation, 533 U.S. 218, 229 (2001).

In its 2016 Decision Record for the Palmer Project, BLM stated that exploration must

be conducted in accordance with a methodology that meets the industry standard:

Exploration must be conducted, in a reasonable methodology consistent with the industry standard, before the prospect can lead to an economical discovery that will support the pre- feasibility, feasibility, engineering, and construction processes that must take place before production of the deposit. Therefore, by allowing Constantine to continue to define the size and economic viability of the resource at the Palmer Project, the BLM is complying with the General Mining Law of 1872, as amended, and the Federal Regulations. The proponent is still in the exploration stage; therefore, it is not a reasonable future action to consider mining in this analysis. (2016 Decision Record at 5; AR 2126).

In its 2017 EA for the Palmer Project, BLM explained that it was the industry standard

for mining companies to take separate, sequential steps (in order) from mineral exploration to a

decision whether to develop a mine. The BLM further stated that mine development could not

be rationally considered by a mining company until the steps in the Life Cycle sequence had

been completed. The steps in what BLM calls “the Life Cycle of a Mine” are explained with

diagrams and charts that are fully set out in BLM’s 2017 EA regarding the environmental

impacts of the 800’ road extension. (AR 3672-3675):


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The Prospecting/Exploration step is a challenging process for an exploration company to move through. Very few exploration projects actually make it to the point that a mine can be developed. The challenges of moving a project to a producing mine means that “about 1 out of every 200 projects that reaches the discovery stage moves to development. This is equivalent to about 1 out of every 10,000 grassroots exploration projects” (Canada, 2010).

When considering these exploration challenges and the current state of the resource information, Constantine’s Palmer Project has a greater chance of not becoming a mine

than that it does at becoming a mine. Another way to view this is that mine “development does not necessarily follow exploration that the results of explorations well as other factors, may well determine that the company will never seek to develop a mine” (Center for Biological Diversity, 2016).

As the exploration improves the confidence of the results, the potential resources increase to a point that the exploration company must consider the expenditures and efforts to move the project to the next step in the Life Cycle of a Mine; Development. Constantine has not reached the point in their exploration work to make an informed decision to consider moving the project to the Development phase. (AR 3674).

The 2017 EA goes on to explain when the BLM will consider analysis for a future mine:

When considering the Life Cycle of a Mine in combination with the Reasonably Foreseeable Future Actions requirement for NEPA, the BLM is limited in its ability to fully analyze a future mine at Constantine’s Project. Analysis of a future mine at the Project would require the BLM to have enough information to avoid speculation. Until the feasibility study phase is initiated the BLM would need to speculate on the scope of a future mine. It is reasonably foreseeable that Constantine’s project may not move beyond exploration. Any assumptions about the scope of the mine, prior to a feasibility determination, would be speculative considering that mining is not automatically triggered by exploration (Center for Biological Diversity, 2016). 2017 EA at 13; AR 3675.

At Paragraph 53 of its Complaint SEACC essentially agrees that the foregoing steps

must occur (in order) to achieve mine development. SEACC also admits that BLM explained

why this is the case:

In the EA, BLM asserted that very few exploration projects actually make it to the point that a mine can be developed, and that the Palmer Project has a greater chance of not becoming a mine than it does of becoming a mine. The agency stated that it would not consider development until after the Company had completed exploration and had produced a thorough valuation of the deposit’s resources – essentially, until after the Company had made a discovery. (Complaint Paragraph 84). See also SEACC’s Br. at


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21.

SEACC nonetheless asks the Court to substitute BLM’s expert opinion for SEACC’s

naked opinion that “the Plan Approval and Road Extension Decisions lack a justification

independent of the possibility of future mine development.” SEACC Br. at 21. (Emphasis

supplied):

Without the possibility of development, exploration would be an irrational waste of time and resources. The Plan Approval and Road Extension decisions lack utility independent of potential future development of the Palmer Project deposit. Therefore, BLM was required to consider the effects of future development at the Palmer Project as the impacts of connected actions. SEACC Br. at 21.

SEACC’s rationale reveals that its entire case is based on a mistaken conflation of mineral

exploration with mine development.

The Courts of this Circuit defer to BLM’s expertise on what is an industry standard – in

this case the steps (in order) explained above that must take place sequentially before mineral

exploration leads to mine development. SEACC has presented no evidence contradicting the

process that BLM described in the 2017 EA; Or. Nat. Res. Council v. Goodman, 505 F.3d 884,

897 (9th Cir. 2007) (the court does not “question [an agency’s] methodology” but defers “to

the agency’s expertise in developing the model”). Rather, without any citing supporting

authority, SEACC simply asks the Court to substitute a “possibility of mine development” test,

for the Ninth Circuit’s test - whether “one of the projects might reasonably have been

completed without the other.” Pac. Coast Fed. of Fishermen's Ass'ns v. Blank, 693 F.3d 1084,

1098 (9th Cir.2012).

Accordingly, BLM’s explanation of why mineral exploration has a utility independent

of mine development and its explanation why it is not reasonably foreseeable that mineral


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exploration leads to mine development must be afforded deference because they are fact issues

within the area of BLM’s special expertise and thus SEACC’s request for a different test and

its Motion must be denied. Lara v. Secretary of Interior 820 F.2d 153, 1540 (9th Cir. 1987).

c. THE MINERAL EXPLORATION APPROVED BY THE BLM IN THIS CASE

HAS A UTILITY INDEPENDENT OF MINE DEVELOPMENT AND IS THUS NOT A CONNECTED ACTION

While mineral exploration may lead to mine development, mine development does not

necessarily follow exploration – it depends on the results of the exploration which logically

cannot be known at the time an exploration PoO is approved. Put another way, while mine

development will not occur without mineral exploration, mineral exploration will most often

occur without mine development. Thus, the exploration PoO that BLM approved in this case has

utility independent of mine development and is not a “connected action.” Although SEACC

recognizes that “[e]xploration is not always successful – in some situations exploration may fail

to reveal a profitable mineral deposit, and so development will not follow,” SEACC

nonetheless concludes:

Nonetheless the possibility of development accounts for the positive value in exploration’s cost-benefit analysis. Constantine is not conducting exploration for its own sake. Without the possibility of development, exploration would be an irrational waste of time and resources. The Plan Approval and Road Extension decisions lack utility independent of potential future development of the Palmer Project deposit. SEACC Br. at 21. Of course, Defendant Intervenors hope that exploration will be successful and lead to

development of a profitable mine. But a mine explorer’s hope of success does not necessarily

result in the location of an economically minable orebody. As the IBLA found in Concerned


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Citizens for Responsible Mining (131 IBLA 257, 266 (1994)):

Development does not necessarily follow exploration. (citations omitted). A mining company contemplating exploration is aware of the possibility, indeed the likelihood, that exploration may not reveal a property that will reach development. If exploration is unsuccessful, the mining company will not undertake development, and this decision to forego development is entirely reasonable. The dependency that Trout Unlimited found key to connected actions is absent in this case, because it is wise and rational for a mining company to forego development. Moreover, this decision to forego development underscores the independent utility of exploration. As Thomas states, independent utility is such utility that the agency (or mining company) might reasonably consider completing only the segment in question.

In Bill Barrett Corporation 177 IBLA 214, 234 (2009) the IBLA confirmed Concerned Citizen:

We have long held that exploration and development, whether concerning coal or other mineral resources on the Federal lands, are not connected actions, within the meaning of 40 C.F.R. § 1508.25. See, e.g., Western Watersheds Project, 175 IBLA 237, 253 (2008); Concerned Citizens for Responsible Mining (On Reconsideration), 131 IBLA at 265 (“NEPA does not require that BLM examine the environmental impacts of mine development when it approves a plan for exploration of a mineral property”), 266-67 (1994).

And, as previously stated, neither a mine explorer’s hope of success nor the “possibility

of mine development” is the Ninth Circuit’s test for a connected action. The Ninth Circuit

holds that the test for connected actions is whether “each of two projects would have taken

place with or without the other and thus had independent utility.” Wetlands Action Network v.

U.S. Army Corps of Engineers, 222 F.3d 1105, 1118 (9th Cir. 2000). When one of the projects

might reasonably have been completed without the other, each has independent utility and they

are not connected for NEPA purposes. Native Ecosystems Council v. Dombeck, 304 F.3d 886,

894 (9th Cir. 2002), Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006),

Sierra Club v. Blank, 786 F.3d 1219, 1225-1226 (9th Cir. 2015), See also Nw. Res. Info. Ctr. v.

NMFS, 56 F.3d 1060, 1068-69 (9th Cir. 1995) (two actions were not connected merely because

they both would benefit salmon); Sylvester v. U.S. Army Corps of Eng'rs, 884 F.2d 394, 400


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(9th Cir.1989) ("[E]ach [action] could exist without the other, although each would benefit

from the other's presence.").

In Rocky Mountain Pipeline Trades Council, 149 IBLA 388, 400 (1999) the IBLA

spelled out the test for connected actions:

BLM is required, in a single EA, to analyze the environmental impacts of a proposed action and any connected actions, even when such connected actions will not be undertaken by BLM or any arm of the Federal Government. 40 C.F.R. § 1508.25(a)(1); Save the Yaak Committee v. Block, 840 F.2d. 714, 719–20 (9th Cir.1988); Southern Utah Wilderness Association (SUWA), 122 IBLA 165, 168 (1992). Actions are deemed “[c]onnected if they: (i) Automatically trigger other actions *** [;] (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously[; or] (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. §1508.25(a)(1). The concern evident in regulation is to ensure that a Federal agency does not improperly limit the scope of its environmental review, thus ignoring the less obvious, but no less related, potential consequences of a proposed action, at a time when it is deciding whether to approve that action. See Sylvester v. U.S. Army Corps of Engineers, 871 F.2d 817, 823 (9th Cir.1989); Thomas v. Peterson, 753 F.2d 754, 760 (9th Cir.1985); SUWA, 122 IBLA at 168.

See also Center for Biological Diversity, 189 IBLA 117, 121-122 (2016).

The three tests described in Rocky Mountain are met in this case: first, as BLM

correctly found (2016 Decision Record at 5; AR 2126), the Palmer Project will not

automatically trigger any other action because if exploration is unsuccessful the Project will be

terminated; second, the exploration contemplated by BLM’s 2016 and 2017 Decision Records

can go forward without mine development or other actions being taken simultaneously; and

third, as the BLM found, exploration stands on its own (2017 EA at 12; AR 3674); it is not an

“interdependent part of a larger action that depends on the larger action for its justification.” In

addition, approving the exploration PoO without including an analysis of the environmental

impacts of mine development does not avoid the legal requirement for such an analysis when

and if mine development is proposed.


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Accordingly, this Court should defer to BLM’s determination that the mineral

exploration approved by the 2016 and 2017 Decision Records has utility independent of mine

development and thus the actions are not connected.

d. WHETHER MINE DEVELOPMENT WILL RESULT FROM MINERAL EXPLORATION IS SPECULATIVE AND NOT REASONABLY FORESEEABLE; THUS, THE EAs’ CUMULATIVE IMPACTS ANALYSES WERE NOT REQUIRED TO INCLUDE THE POTENTIAL ENVIRONMENTAL IMPACTS FROM POTENTIAL DEVELOPMENT OF A HYPOTHETICAL MINE

In Northern Alaska Environmental Center v. Kempthorne, 457 F.3d 969, 980 (9th Cir.

2006) the Court explained when a cumulative impacts analysis is required:

NEPA requires that an FEIS consider ‘[c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.’ 40 C.F.R. § 1508.25(a)(2). Ninth Circuit precedent defined a ‘reasonably foreseeable action, for which cumulative impacts must be analyzed to include ‘proposed actions.’ (Citations Omitted).

Neither test applies to the Palmer project PoO for mineral exploration.

First, there is no other existing or proposed development in the Project area with which

the potential environmental impacts from potential mine development could cumulate.

Second, the permit conditions required to mitigate the environmental impacts of mine

development are unknowable until an orebody has been sufficiently defined by exploration,

Constantine has made no proposal to develop a mine and thus a cumulative impact analysis is

not required. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.20 (1976).

In League of Wilderness Defenders v. Connaughton, 752 F.3d. 755, 762 (9th Cir. 2014) defined a “reasonably foreseeable future project” as follows:

A reasonably foreseeable future action is defined as an “[i]dentified proposal[],” 36 C.F.R. § 220.3, and an identified proposal exists where the agency “has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated.” 36 C.F.R. § 220.4(a)(1).


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Although “projects need not be finalized before they are reasonably foreseeable,” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078-79 (9th Cir. 2011), they must be more than merely “contemplated,” Kleppe v. Sierra Club, 427 U.S. 390, 410 n.20 (1976). When looking at whether a potential future action is an identified proposal, courts must “focus upon a proposal’s parameters as the agency defines them.” California. v. Block, 690 F.2d 753, 761 (9th Cir.1982).

Here the BLM’s 2016 Decision Record asserts that, because the Palmer Project is still

at the exploration stage, mine development is not reasonably foreseeable:

Exploration must be conducted, in a reasonable methodology consistent with the industry standard, before the prospect can lead to an economical discovery that will support the pre- feasibility, feasibility, engineering, and construction processes that must take place before production of that deposit. Therefore, by allowing Constantine to continue to define the size and economic viability of the resource at the Palmer Project, the BLM is complying with the General Mining Law 1872, as amended, and the Federal Regulations. The proponent is still in exploration phase; therefore, it is not a reasonable foreseeable future action to consider mining in this analysis. AR 2125.

Because there has been no proposal to develop a mine, an analysis of the environmental

impacts of mine development is not required as a cumulative impact in the mineral exploration

PoO EA.

In Jones v. National Marine Fisheries Service, 741 F.3d 989, 1000 - 1001 (9th Cir.

2013) the Court faced the question whether the company would engage in future mining beyond

the sites included in a Corps of Engineers Clean Water Act (CWA) § 404 permit application.

The company had indicated that it intended to mine future sites but had also described barriers

to developing any of the sites. The Court reasoned:

An agency need only consider ‘[t]he cumulative effects of projects that [the applicant]

is already proposing.’ Lands Council v. Powell,395 F.3d 1019, 1023 (9th Cir. 2005). ‘For any project that is not yet proposed, and is more remote in time,’ by contrast, ‘a cumulative effects analysis would be both speculative and premature.’ Id.

- - - - -

Here, by contrast, there is no reliable study or projection of future mining in this case. ORC’s general statements regarding a desire for increased mining give no information


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as to the scope or location of any future projects or even how many such projects ORC contemplates pursuing. The general plans for expanded mining recited by Woodlands do not require a cumulative impacts analysis. Envtl. Protect. Info. Ctr. v. Forest Service

(EPIC), 451 F.3d 1005, 1014 (9th Cir. 2006).

Thus, the Ninth Circuit determined that the agency did not fail to analyze the cumulative

impacts of the challenged mining project, despite plans to widen the scope of future mining,

because the project plans were speculative and not “reduced to specific proposals.

It is also significant that if Constantine ultimately elects to proceed with mine

development, that hypothetical project will be much larger and far more complex than the 2.5

mile road extension and the 800’ road extension approved in the 2016 and 2017 Decision

Records. It would be unreasonable to require BLM to speculate about the environmental

impacts of the much larger project within the EA for the smaller project. As the Court found in

Center for Environmental Law and Policy v. Bureau of Reclamation, 655 F.3d. 100, 1011 (9th

Cir. 2011):

We also note that the drawdown project discussed in the EA involves much smaller diversions of water than the Special Study, which could result in a drawdown of well over 300,000 acre-feet per year. To direct that Reclamation must account for the cumulative effects of the drawdown project and the Special Study in the drawdown project EA would thus be to direct the agency to wag the dog by its tail.

Because a proposal to develop a mine would likely trigger an EIS, granting SEACC’s Motion

would likely result in converting what are now mineral exploration PoO EAs into EIS’s at a

significantly increased cost and delay to the explorer and the agency.

For these reasons this Court should defer to BLM’s determination that mine

development is not reasonably foreseeable from the mineral exploration approved by the 2016

and 2017 Decision Records and thus a cumulative impact analysis is not required.


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e. THE ENVIRONMENTAL IMPACTS FROM MINE DEVELOPMENT CANNOT BE ANALYZED UNTIL MINERAL EXPLORATION HAS DETERMINED THE FINAL DIMENSIONS AND LOCATION OF THE OREBODY, MINING METHOD, PROCESS FACILITY AND WASTE MANAGEMENT PLANS AS WELL AS THE NATURE OF OREBODY BEING DEVELOPED

As a practical matter the environmental impacts of mine development cannot be

analyzed until mineral exploration has determined the final dimensions and location of the: i)

orebody; ii) mining method; iii) processing facility; and iv) waste management plans, as well

as the nature of orebody being developed. As IBLA stated in Concerned Citizen (at 267-268):

Our decision that development impacts need not be analyzed in BLM’s assessment of Malheur’s exploration plan has the added virtue of practicality. If development were to be analyzed prior to exploration, BLM would be unable to describe with any specificity where development would occur. Lacking knowledge of the situs of development, it would be unable to describe the nature of the deposit that might be found. Absent such data, the agency would be hard pressed to predict how such deposit might be extracted. Such an environmental analysis would be based on vague information and offer little guidance to the agency.

The Ninth Circuit reached the same conclusion in Te-Moak Tribe of Western Shoshone of

Nevada v. Department of Interior. 608 F.3d 592, 600 (9th Cir. 2010): “An exploration project,

however, inherently involves uncertainties; if mining companies knew the precise location

of mineral deposits before drilling, exploration would not be required.” (Emphasis added).

In short, case law supports the BLM’s conclusions in the instant case that mineral

exploration has the independent utility of locating and defining an ore body and that mine

development is not reasonably foreseeable until after exploration is complete and an economic

analysis has shown that the fully orebody defined can be developed as a mine. 2017 EA at 12-

13; AR 3674-3675. NEPA reviews of permitting for such a mine will be required at that time.


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IV. REMEDIES: SEACC’S VACATUR AND INJUNCTION REQUESTS LACK MERIT

A. THE COURT SHOULD NOT VACATE THE DECISION DOCUMENTS

EVEN IF THERE IS A LEGAL INFIRMITY

While Defendant Intervenors maintain that BLM’s approval of Constantine’s mineral

exploration PoOs complied with the law, should the Court find any legal error, Defendant

Intervenors respectfully request additional briefing on the issue of remedy.

SEACC’s major NEPA claim is an issue of first impression which was not presented to

the agency. Accordingly, if SEACC succeeds on the merits the appropriate remedy should not

be Vacatur, but a remand to the agency with instructions to comply with the Court’s Order. In

Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337 (9th Cir. 1995), the Ninth Circuit ruled that the

district court was "not required to set aside every unlawful agency action. The court's decision to

grant or deny injunctive or declaratory relief under [the] APA is controlled by principles of

equity." Id. at 1343. Thus, the Ninth Circuit affirmed the district court's exercise of its

equitable authority not to set aside a ROD, although it was deemed legally insufficient. Instead,

the Ninth Circuit affirmed allowing some activities authorized to proceed while enjoining

others. Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 877 (9th Cir. 2004). See

also Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 994 (9th Cir. 2012) (remanding without

vacating decision).

B. SEACC DOES NOT MEET THE CRITERIA FOR AN INJUNCTION

SEACC needs to show four things to obtain an injunction: 1) SEACC and its members

are likely to suffer irreparable injury; 2) SEACC’s remedies at law are inadequate; 3) the

balance of hardships favors SEACC; and 4) the public interest favors granting the injunction.

SEACC claims that the first criterion is satisfied because exploration precludes its use


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of the area. The record says otherwise. Use of the Porcupine District (which includes the

Palmer Project area) for mining is fully documented in the Cultural Resources Report (Ex. 11

AR 1015 1074). From the 1890s the Dalton trail has gone through what is now Constantine’s

mining camp. The area has been subject to exploration and placer mining for decades, including

exploration of the Palmer Project since 1969. (AR 1043 – 1057). If SEACC’s members have

been “enjoying” the area for standing purposes (Complaint at Pars.15 and 19), then they are not

suffering irreparable injury from what has been long term, ongoing mineral exploration activity

in the area for injunction purposes.

As to the second criterion, SEACC has adequate remedies at law to prevent future mine

development if it is ever proposed: First, SEACC can urge the permitting agencies to select the

“no action” alternative which, if selected, would prevent potential mine development from

proceeding. Second, SEACC could petition the Secretary or Congress to withdraw the area

from mining.

The third criterion requires the Court to decide whether SEACC would be harmed more

if an injunction is NOT granted than Defendant Intervenors would be if it were. SEACC claims

that it is harmed because, if allowed to continue mineral exploration, Defendant Intervenors

could make a discovery that would create property rights that would prevent BLM from

withdrawing the area from mining. There are several reasons why this claim of harm is

insufficient to satisfy this criterion:

1) SEACC’s request for an injunction is premature. There would be no point in the

Court enjoining exploration to prevent Constantine from making discovery if

Constantine has already made a discovery and the main issue in SEACC’s case is

moot. The record does not support SEACC’s assumption that discovery has not


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already occurred;

2) SEACC’s alleged harms arise from a future project that has not yet even been

proposed. As Plaintiff Rivers Without Borders acknowledged:

While the currently proposed actions are not in themselves a reason for significantly raised environmental concern, the ultimate goal of a large scale mine in this watershed is of great concern.

Rivers Without Borders May 26, 2016 comments on 2016 PoO application. AR 1782 – 1783

3) SEACC’s alleged future harms are speculative and not concrete. They are based

upon a series of theoretical “worst case” assumptions set out in Paragraphs 57

through 66 of SEACC’s Complaint. For SEACC to realize the environmental

“harms” it conjures in its Complaint and Brief the agencies would have to issue

such permits notwithstanding the fact that mining in the Project Area would cause

“unnecessary or undue degradation” – which assumption is inconsistent with the

presumption that federal employees carry out their duties in accordance with the

law. United States v. Chemical Foundation, Inc. 272 U.S.1. 15 (1926).

Accordingly, there would be no significant harms to SEACC arising from BLM

allowing mineral exploration to proceed.

On the other hand, Constantine would suffer significant harms were mineral

exploration enjoined for the considerable time it would take for BLM to hypothecate a mine

based upon the limited mineralization information thus far collected, to speculate on the

environmental impacts of a hypothetical mine, and to prepare an EIS to display those impacts

(which would likely be followed by litigation):

The Palmer Project is Constantine’s principal asset and the company has no cash flow from operations to fund expenditures. Constantine’s ability to continue to raise the


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investment capital necessary to fund exploration, maintain the Project in good standing, and preserve the company’s financial well-being would be harmed, likely irreparably harmed, by an injunction that stops work for a significant period of time. (Second Green Declaration at Par. 5). (Exhibit 3).

In addition:

Because of the “cart before the horse” illogic and substantial difficulty of explaining the speculative environmental impacts from development of a hypothetical mine prior to completion of exploration, the cost and complexity of complying could have the practical effect of delaying, reducing, or completely eliminating the opportunity for conducting enough exploration at the Palmer Project to determine whether and how a mine might be developed. (Green Declaration at Par.15). (Exhibit 2). (Dckt . 17) .

This would have “a substantial negative impact on the Palmer Project and the Company’s

financial well-being and could potentially cause Constantine to lose its entire investment in the

Palmer Project which would include more than 10 years of exploration and $40 million.”

(Second Green Declaration at Par. 7). (Exhibit 3).

Other harms to Constantine would include the loss of 65 employees and contract

employees familiar with the Project; the financial costs of maintaining the property in “care and

maintenance” during the period of the injunction, including lease payments to the claim holders;

and the increased costs of exploration when the injunction was ultimately lifted. (Second Green

Declaration at Pars. 8 and 9 (a)). (Exhibit 3).

The fourth criterion asks whether the public interest favors an injunction. There would be

adverse impacts on Haines due to the loss of 65 workers employed and contracted to assist with

the exploration and construction work on the Project (Second Green Declaration at Par. 9 (a))

(Exhibit 3), loss of future job opportunities, loss of Constantine’s spending for its current

employees and supplies in the community, and loss of Constantine’s charitable contributions in

the community. (Second Green Declaration at Par. 7). (Exhibit 9).

It follows that SEACC does not meet the criteria for an injunction.


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V. CONCLUSION

For the foregoing reasons the Court should deny SEACC’s Motion for Summary

Judgment.

Respectfully submitted, DATED: September 6, 2018 s/James F. Clark

James F. Clark Alaska Bar #6907025 Law Office of James F. Clark 1109 C Street, Juneau, AK 99801 907.586.0122 (main) 907.586-1093 (fax) [email protected]

Attorney for Defendant-Intervenors


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CERTIFICATE OF SERVICE

I hereby certify that on September 6, 2018 I served a copy of DEFENDANT-INTERVENORS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT by electronically filing it with the Clerk of the U.S. District Court for Alaska which will send electronic copies of such filing to all attorneys of record in this case, all of whom are registered with the Court’s CM/ECF system.

s/James F. Clark James F. Clark


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