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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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9th Circuit divided (again) over judicial deference in case styled CBD v. DOI (again)

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CENTER FOR BIOLOGICAL DIVERSITY v. UNITED STATES DEPARTMENT OF THE INTERIOR, No. 07-16423, 2010 WL 3704200 (9th Cir., Sept. 23, 2010)(Before DOROTHY W. NELSON, WILLIAM A. FLETCHER and RICHARD C. TALLMAN, Circuit Judges).

KEITHINKING.  Although this was a NEPA case, it is worth mention here.  ESAblawg has previously discussed the decision in The Lands Council and Wild West Institute v. Ranotte McNair and U.S. Forest Service, No. 07-35000, D.C. No. CV-06-00425-EJL (9th Cir. EN BANC July 2, 2008), because its application of judicial deference to administrative agencies  is highly relevant to Endangered Species Act practicioners.  In Lands Council, the Ninth Circuit rejected some prior precedent, declaring it insufficiently deferential to the federal agencies.  However, in a subsequent case, Alliance for the Wild Rockies v. Cottrell, No. 09-35756, 9:09-cv-00107-DWM (9th Cir. July 28, 2010), the Ninth Circuit seemed to back away from Lands Council. See ESAblawg.  This week, in this recent CBD v. DOI case, the Circuit Judges of the Ninth Circuit were again divided over the meaning of Lands Council.

BACKGROUND:  CBD v DOI addressed the issue of whether a land exchange violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-70; the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701-87; and the Mining Law of 1872, 30 U.S.C. §§ 21-54.  If the proposed exchange does not occur, the land will continue to be owned by the United States.  The private mining company, Asarco will not be able to conduct a new mining operation on the land without first submitting a Mining Plan of Operations (“MPO”) to the Bureau of Land Management. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed. If the proposed exchange occurs, Asarco would take fee simple ownership of the exchanged land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872.  In the Final Environmental Impact Statement addressing the land exchange, the BLM assumed that the manner and extent of Asarco’s new mining operations would be the same whether or not the United States owned the land. Because of this assumption, the BLM did not compare the environmental effects of exchanging the land with the effects of not exchanging the land. Under these circumstances, we hold that the BLM has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, and that its action was therefore arbitrary and capricious.

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Photo above, by Dean Lagerwell, of Asarco's Ray copper mine in Arizona (in existence since 1948) from ENS-newswire.  ENS also provided news coverage of original 9th Circuit opinion in 2009.

MAJORITY OPINION: Remarkably, more than one year after its original publication, the Ninth Circuit rewrote its opinion, and further announced that no further petitions for rehearing or rehearing en banc will be accepted.  In the majority opinion, two judges disclaim any retreat from Lands Council:  

The dissent argues that our decision in this case is inconsistent with our recent en banc decision in The Lands Council v. McNair, 537 F.3d 981 (9th Cir.2008) (en banc). We disagree.  We wrote in Lands Council that “our proper role is simply to ensure that the agency made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious.’ “ Id. at 993. In Lands Council, we insisted that agencies support and explain their conclusions with evidence and reasoned analysis. Id. at 994, 998…  Our colleague writes that our opinion is “based on a distaste for the particular industrial goals at issue.” This is not true. We express no view-indeed, we have no view-on the question whether the proposed land exchange is a good or bad idea. That question is not properly before us. But our colleague has a very definite view. In his view, the land exchange is “beneficial.” In his view, the “offered lands ... are undisputably superior in almost all respects (except for mineral deposits) to the selected lands.”  In his view, our approach in not only “legally untenable.” Id. at 16201. It is also “impractical, misguided, and contrary to the best interests and welfare of the public at large.”

We confine ourselves to the legal questions before us. We continue to adhere to the standard of deference to agency action we articulated in Lands Council. But we are not compelled to defer-indeed, we are compelled not to defer-when an agency has acted arbitrarily and capriciously. In this case, we conclude that the BLM acted arbitrarily and capriciously in assuming without explanation that the MPO process is a meaningless formality that provides no environmental protection and, based on that assumption, in failing to make a meaningful comparison between the proposed land exchange and the no action alternative.

 DISSENTING OPINION.  The dissenting opinion, by Circuit Judge Tallman, also spoke directly to the issue of Lands Council, but framed the issues quite differently, rebuking the majority for a lack of judicial deference:

This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. As we have held time and again, “we are not free to ‘impose upon the agency our own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.' “ Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978)). “Nor may we impose ‘procedural requirements not explicitly enumerated in the pertinent statutes.’ “ Lands Council, 537 F.3d at 993 (quoting Wilderness Soc'y v. Tyrrel, 918 F.2d 813, 818 (9th Cir.1990)) (brackets omitted). But despite insisting that the majority's decision is consistent with Lands Council, it is just the opposite. According to today's opinion, the BLM was obliged to determine the exact environmental consequences under hypothetical future MPOs for hypothetical future mines and compare them to the environmental consequences of hypothetical future mines not subject to the MPO requirement. Essentially, the BLM must demand that Asarco fully explore the selected lands, develop a detailed mining plan, and submit a proposed plan of mining operations for approval-one mimicking an MPO. The BLM is then required, under NEPA, to consider that quasi-MPO as if it were in fact a filed MPO under the Mining Law. Stated in real terms, the approval process of a proposed land exchange under FLPMA henceforth incorporates, by way of NEPA, the Mining Law's governance of mining activities on public lands. But, of course, the majority will not say that if Asarco does all this, it will have complied with the Mining Law.

I find no legal basis for this newly-minted, quasi-MPO requirement-“a creature of judicial cloth, not legislative cloth, ... not mandated by any of the statutory or regulatory provisions upon which he majorityrelied.”   Weinberger, 454 U .S. at 141. “Lands Council teaches that our proper role is simply to ensure that the agency, in its expertise, made no clear error of judgment rendering its action arbitrary and capricious.” Nw. Coal. for Alternatives to Pesticides v. EPA, 544 F.3d 1043, 1060 (9th Cir.2008) (Ikuta, J., concurring in part, dissenting in part). Just as “we defer to the Forest Service as to what evidence is, or is not, necessary to support wildlife viability analyses,” Lands Council, 537 F.3d at 992, we must defer to the BLM as to what evidence is, or is not, necessary to support a foreseeable environmental impact assessment of anticipated and continuing mining activities in order to make an informed “public interest” determination. See also Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S.Ct. 2458, 2473 (2009) (noting deference given to agencies' interpretations of own regulatory scheme). My colleagues clearly disagree. Who needs Chevron deference? Why adhere to Lands Council? Judges will now administer the duties Congress has entrusted to the administrative agency.

 In sum, the majority's creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir.2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. As was the case in Lands Council, the agency “is at liberty, of course, to onduct further analysis if it deems it appropriate or necessary, but it is not required to do so.” Id. at 991-92. It is certainly not for us as Article III judges to feign superior expertise in such specialized areas and to micro-manage agencies in executing their congressionally delegated administrative functions.