Western Watersheds Project v. McCullough, No. 23-15259, 2023 U.S. App. LEXIS 18063 (9th Cir. 2023)

Facts

In September 2019 Lithium Nevada submitted plans to the Bureau of Land Management (BLM) seeking approval for a mining and exploration project. Some conservation groups, ranchers, and the Burns Paiute Tribe (collectively, “plaintiffs”) opposed the plans.1

BLM began the National Environmental Policy Act (NEPA) process, announcing it would begin preparing an environmental impact statement in January 2020.2 During a comment period the plaintiffs, the United States Environmental Protection Agency, and the Nevada Department of Wildlife submitted comments. Following the final environmental impact statement, BLM approved the project in a Record of Decision on January 15, 2021.3

Procedural History

This case arose when plaintiffs asked the court to review BLM’s Record of Decision (ROD) regarding the Thacker Pass Lithium Mine Project under 5 U.S.C. § 701 Administrative Procedures Act, challenging BLM’s compliance with three federal statutes: NEPA, the National Historic Preservation Act (NHPA), and the Federal Land Policy and Management Act (FLPMA).4 Plaintiffs’ first argument was that BLM clearly violated FLPMA by causing undue environmental degradation.5 Second, plaintiffs argued that BLM violated NEPA by failing to adequately analyze impacts on air quality, wildlife populations, and groundwater.6 Further, the Burn Paiute Tribe contended that BLM violated NHPA by deciding not to consult them on the project, thereby failing to act reasonably or in good faith.7

The Nevada district court affirmed BLM’s decision as it related to FLPMA, NEPA, and NHPA.8 In rejecting the plaintiff’s arguments, the court found that the project complied with NEPA and FLPMA by (1) adequate assessing the project’s effects on “local sage grouse population and habitat, groundwater aquifers, and air quality” and (2) finding the project would cause no unnecessary and undue degradation. The district court rejected arguments that the Lithium Mine will cause “unnecessary and undue degradation to the local sage grouse population and habitat, groundwater aquifers, and air quality” thereby violating FLPMA, and that BLM “failed to adequate assess the [p]roject’s impacts on air quality, wildlife, and groundwater in violation of NEPA,” and, finally, that BLM “unreasonably or in bad faith decided not to consult” with the Burns Paiute Tribe in violation of NHPA.9

In response to the grant of partial summary judgment plaintiffs appealed.

Issue

Did BLM abuse its discretion in determining the Record of Decision and, in doing so, violate NEPA and NHPA?

Rational

When reviewing agency decisions under NEPA, NHPA, and FLPMA, judicial review is governed by Administrative Procedures Act § 706.10 The court will uphold the agency action unless it is “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”11

First, the Ninth Circuit reviewed whether the BLM abused the discretion in “determining that the [ROD] does not authorize violations of applicable water-quality standards.”12 The ROD conditioned approval of the mine so long as Lithium Nevada Corporation complied with monitoring groundwater sources. Such monitoring would need to comply with Nevada Division of Environmental Protection (NDEP) standards, as well as to maintain Nevada standards regarding “water quality and quantity for wildlife, livestock, and human consumption.’”13 The ROD states the project does not impermissible harm the population, therefore BLM was “not arbitrary, capricious, or otherwise not in accordance with law in complying with the FLPMA’s mandate to “prevent unnecessary or undue degradation of the lands.’”14

Secondly, the BLM’s approval of the project was in accordance with NEPA.15 The court held that: (1) the Final Environmental Impact Statement contained a “reasonably complete discussion of possible mitigation measures,’” the BLM (2) properly addressed cumulative impacts in the Final Environmental Impact Statement, (3) described baseline conditions of wildlife species and analyzed effects to those baselines, (4) reasonably relied on water baseflow data to create resource baselines, (5) did not violate NEPA by failing to publicly produce record outside of the formal NEPA process and (6) did take a “hard look” at impacts on cultural resources.16

Third, the Ninth Circuit held that “[t]he BLM’s identification of tribes for consultation was not arbitrary or capricious and did not violate NHPA.” The appeals court stated that BLM acted reasonably and in good faith when identifying tribes for consultation, because there was (1) no evidence brought before BLM that suggested the state of the mining project held any religious or cultural significance to the Burns Paiute Tribe, and (2) BLM had contacted the Burn Paiute Tribe which responded by deferring consultation to tribes closer to the project site.17

Conclusion

The Ninth Circuit, when reviewing district court of Nevada’s decision to remand without vacatur for an abuse of discretion, found no abuse of discretion and stated that the district court “correctly stated the legal standard and found that the BLM’s sole error weighed against vacatur . . . [there was a serious] possibility that the [BLM] would be able to substantiate its decision on remand.’”18

Additionally, the appeals court noted in a footnote that it did not address whether BLM violated FLPMA in approving the project “without requiring compliance with certain RPM provisions” because the plaintiffs were awarded summary judgment and it was not presented by either party on appeal.19

The Ninth Circuit affirmed partial summary judgment.

Chloe Petry
Albany Law School, Class of 2025