The Forest Service must take another look at a mining project it approved in the Coronado National Forest, following a federal judge's decision that found the service improperly excluded the project from NEPA review (Defenders of Wildlife v. U.S. Forest Service, 14-2446-TUC-RM, D. Ariz.).
The now-postponed Sunnyside Project, proposed by Regal Resources, would involve "six temporary drill sites to assess copper mineralization," U.S. District Judge Rosemary Márquez said in her order, issued yesterday (Sept. 15).
"USFS’s determination that the project can be completed in one year or less is unsupported by the record. Therefore, USFS’s approval of the project using the categorical exclusion for short-term mineral explorations pursuant to 36 C.F.R. § 220.6(e)(8) was arbitrary and capricious," she said.
The service had approved the project in April after consulting with the Fish and Wildlife Service and concluding that the project would not adversely affect endangered species, including the western yellow-billed cuckoo. The plaintiffs, including the Patagonia Area Resource Alliance, filed a supplemental complaint that dropped the ESA claims.
It turned out that NEPA was enough.
"The decision authorized Regal Resources to run its drill rigs for at least five months in sensitive endangered species’ habitat," Defenders of Wildlife said in a news release announcing the judge's decision. "Loud mineral drilling operations and construction would occur 24 hours a day, seven days a week (using artificial lighting at night) with total project operations and reclamation lasting up to three years."
The Forest Service did not adequately explain why "potential effects to the Mexican spotted owl are certain to be environmentally insignificant," the judge said. "[T]he administrative record indicates that the effects of the Sunnyside Project’s nighttime lighting on the Mexican spotted owl are uncertain, and that negative effects on the owl from project noise can be anticipated in up to 26% of the owl’s non-breeding territory."
In addition, she said, "USFS’s determination that the Sunnyside Project will not have significant environmental effects is based in large part upon the anticipated ability of listed species, such as the ocelot and jaguar, to avoid the affected area during project activities. This basis for USFS’s determination is undermined by the [Forest Service's] revised Decision Memorandum’s failure to consider the Sunnyside Project’s cumulative effects in relation to other temporally and geographically similar mineral exploration projects."
Regarding cumulative impacts, the judge said, "While the ESA definition of cumulative effects ignores future federal actions (see 50 C.F.R. § 402.02), the broader NEPA definition looks to 'the incremental impact of the action when added to [all] other past, present, and reasonably foreseeable future actions.' 40 C.F.R. § 1508.7. In relying upon the revised [Biological Assessment's] EPA [sic: Judge surely meant to write "ESA"] cumulative impact analysis, the revised Decision Memorandum failed to conduct a proper cumulative impact analysis under NEPA."
"[I]n finding that the Sunnyside Project was not likely to adversely affect listed species, USFS and USFWS relied heavily on the project’s limited temporal and geographic scope. The record indicates that the Hermosa Project will have similar environmental effects as the Sunnyside Project, meaning the environmental disturbances from the projects will exist over a larger geographical area and a larger temporal timeframe than that analyzed in the revised Decision Memorandum. Even if the projects will not temporally overlap, USFS has not shown that its failure to analyze the cumulative impact of the Sunnyside and Hermosa projects clearly had no bearing on its conclusion that the Sunnyside Project would not have cumulatively significant environmental effects."
USFS also "failed to clearly show" that the two projects won't occur at the same time. The Hermosa Project is due to start in November.
"The argument that the Sunnyside Project and the Hermosa Project will have no cumulative impacts because they will not temporally overlap is a post hoc rationalization unsupported by the information available to USFS at the time it issued its revised Decision Memorandum," Márquez wrote.