Sep 162015

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.


Roll called “fair, thoughtful judge”

 Posted by on January 10, 2011
Jan 102011

The federal judge who was shot dead in a Tucson parking lot was mourned by observers across the political spectrum.

John M. Roll, chief judge for the U.S. District Court of Arizona, was was shot and killed Jan. 8. The rampage has so far resulted in the deaths of six people. Fourteen people were injured, including Rep. Gabrielle Giffords, who was shot in the head.

Roll adjudicated environmental cases frequently. One of the chief litigants before him was the Center for Biological Diversity, whose executive director, Kierán Suckling, spoke about Roll at a candlelight vigil the night he was shot, at the University Medical Center in Tucson.

Judge John M. Roll

In an email to ESWR, Suckling had this to say about the judge.

Roll was a fair, thoughtful judge. Sometimes humorous, sometimes tough, he had a knack for getting to the core of a case quickly and making attorneys focus on that core whether they wanted to or not. We didn't win all our cases before him, but always got a fair hearing. He epitomized the greatest value of the American legal system: the ability of a single, honest judge to ensure justice regardless of political pressure. If jaguars roam the deserts and mountains of the Southwest someday, it will be because Judge Roll had the clarity and bravery to overrule a federal agency and many economic/political interests determined to ignore them.

Roll will be missed.

Suckling was no doubt referring to Roll's ruling in March 2009 that the Fish and Wildlife Service must prepare a recovery plan and designate critical habitat for the jaguar. (CBD release, 3/31/2009)

Here's a PDF of that decision from CBD (and our own link)

Roll said FWS illegally used the "foreign species exemption" to justify not preparing a recovery plan for the jaguar.

The exemption applies to a species if its “current and historic ranges occur entirely under the jurisdiction of other countries, i.e., it is a foreign species.”

The service, Roll observed, had "overlook[ed] the word 'entirely,' arguing in its brief that its interpretation of the exemption is reasonable because 'the jaguar is the functional equivalent of a foreign species.' ... As a matter of plain meaning, however, the jaguar is clearly not a foreign species, and thus the foreign species exemption does not apply. Moreover, as to prior application, it would appear that while the FWS has never prepared a recovery plan for a foreign species, it has exempted only 11 domestic species from recovery plan requirements since the ESA was promulgated."

He ordered FWS to come back with new decisions on a recovery plan and critical habitat.

In a more recent decision, Roll determined that USDA's Wildlife Services agency should make specific geospatial data on wolf depredations available to CBD. His decision was overturned by the Ninth Circuit (see story).

According to the criminal complaint filed against alleged killer Jared Loughner, Roll was at the Giffords event to thank her for signing a letter to the Ninth Circuit about the volume of cases in the Arizona District.

More links

Critical habitat prudency determination for jaguar

FWS species profile for jaguar and NatureServe's page

Roll bio from U.S. courts site

Statement by Kieran Suckling, executive director, Center for Biological Diversity