9th Circuit Court halted a land swap between the Bureau of Land Management (BLM) and Asarco, a mining company, this Monday. The BLM prepared a Final Environmental Impact Statement (FEIS) for this project in 1999.
The FEIS examined 2 land exchange alternatives and 1 No Action Alternative. The FEIS assumed that even if the land exchange did not occur, Asarco would still mine the land, and therefore, the environmental consequences of the land exchange alternatives and the No Action Alternative were the same.
But the court decided that if the land swap did not occur, then Asarco mining operations on the land would be subject to the Mining Law of 1872—which would likely require multiple Mining Plan of Operations (MPOs) including substantial documentation and public involvement.
So the crux of the court’s ruling is that there would be different environmental consequences between the land exchange alternatives and the No Action Alternative, because the process of getting multiple MPOs approved will “substantially affect the manner in which mining operations will occur…” Unfortunately, the decision did not elaborate on how getting multiple MPOs approved would impact mining operations or in turn, would result in different impacts to the environment.
NEPA lesson learned: if two alternatives differ in procedural requirements, the court may decide that these alternatives will have different environmental impacts.
Asarco owns the Ray Mine complex in Gilaand and Pinal Counties, Arizona, the third most productive copper mine in the United States. In 1994, Asarco proposed a land exchange with the BLM to trade 7,300 acres of private land in exchange for 10,976 acres of public land to expand its mining operations. The Center for Biological Diversity, Western Land Exchange Project and the Sierra Club sued the BLM and Asarco under NEPA and other laws.