Posted by: Steven M. Taber | September 14, 2009

Ninth Circuit Court of Appeals Holds BLM Violated NEPA in Center for Biological Diversity v. DOI Case

The United States Court of Appeals for the Ninth Circuit today issued its 2-1 decision in the matter of Center for Biological Diversity v. U.S. Department of Interior, Case No. 07-16423.  The Center contended that the Bureau of Land Management’s approval of a land exchange violated the National Environmental Policy Act, the Federal Land Policy and Management Act and the Mining Law of 1872.

As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement (“FEIS”) pursuant to NEPA.  In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred.  Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed.  Likewise, the BLM made the same assumption in its Record of Decision (“ROD”) approving the land exchange.

The Court concluded:

Because the BLM has conducted no comparative analysis we hold that is has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA . . . and that its approval of the proposed land exchange was “arbitrary and capricious” in violation of FLPMA. . .  We reverse the decision of the district court approving the actions of the BLM.

Judge William A. Fletcher wrote the opinion, and Dissent was filed by Judge Richard C. Tallman.

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