FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TE-MOAK TRIBE OF WESTERN 

SHOSHONE OF NEVADA; WESTERN

SHOSHONE DEFENSE PROJECT; GREAT

BASIN MINE WATCH,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF THE No. 07-16336

INTERIOR; ROBERT V. ABBEY State D.C. No.

Director; GAIL G. GIVENS,  CV-05-00279-LRH

Assistant Field Manager Battle

Mountain Field Office; CLINTON R. OPINION

OKE, Assistant Field Manager;

UNITED STATES BUREAU OF LAND

MANAGEMENT,

Defendants-Appellees,

CORTEZ GOLD MINES,

Defendant-intervenor-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

January 15, 2009—San Francisco, California

Filed June 18, 2010

Before: Sidney R. Thomas and Richard A. Paez,

Circuit Judges, and David A. Ezra,* District Judge.

*The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation. 

8981
Opinion by Judge Paez

8982 TE-MOAK TRIBE v. USDOI
COUNSEL

Roger Flynn, Jeffery C. Parsons, Western Mining Action

Project, Lyons, Colorado, for petitioners Te-Moak Tribe of

Western Shoshone of Nevada, Western Shoshone Defense

Project, and Great Basin Mine Watch.

Ronald J. Tenpas, Assistant Attorney General, Mark Haag,

Attorney, Environment & Natural Resources Division,

Department of Justice, Washington, DC, John Steiger, Of

Counsel, Office of the Regional Solicitor, United States

Department of the Interior, Salt Lake City, Utah, for respon8986 TE-MOAK TRIBE v. USDOI
dents United States Department of the Interior; Robert V.

Abbey, State Director; Gail G. Givens, Assistant Field Manager, Battle Mountain Field Office; Clinton R. Oke, Assistant

Field Manager, Elko Field Office; United States Bureau of

Land Management.

Robert Tuchman, Thomas F. Cope, Linnea Brown, Holme

Roberts & Owen LLP, Denver, Colorado, W. Chris Wicker,

Woodburn and Wedge, Reno, Nevada, for respondentintervenor Cortez Gold Mines.

OPINION

PAEZ, Circuit Judge: 

Te-Moak Tribe of Western Shoshone of Nevada, a

federally-recognized Indian tribe (“the Tribe”), the Western

Shoshone Defense Project (“WSDP”),1 and Great Basin Mine

Watch (“GBMW”)2 (collectively,“Plaintiffs”) appeal the district court’s denial of their motion for summary judgment, and

the grant of summary judgment to the Department of the Interior (“DOI”), the Bureau of Land Management (“BLM”), several officers of the BLM, and intervenor Cortez Gold Mines,

Inc. (“Cortez”) (collectively, “Defendants”).3 Plaintiffs con1The Western Shoshone National Counsel created WSDP “to protect

and preserve Western Shoshone rights and homelands for present and

future generations based upon cultural and spiritual traditions.” 

2GBMW describes itself as “a coalition of environmentalists, ranchers,

and Native Americans dedicated to reforming the hardrock mining industry and the agencies that regulate them to protect the land, air, water and

Native American resources of the Great Basin.” 

3We have jurisdiction to review both the grant of summary judgment to

Defendants and the denial of summary judgment to Plaintiffs, because

“[t]he grant of summary judgment [to the Defendants] is a final order

. . . .” Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.

2007) (citing Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973

F.2d 688, 694 (9th Cir. 1992)). 

TE-MOAK TRIBE v. USDOI 8987
tend that the BLM’s approval of Cortez’s amendment to a

plan of operations for an existing mineral exploration project

in Nevada violated the National Environmental Policy Act

(“NEPA”), the National Historic Preservation Act (“NHPA”),

and the Federal Land Policy and Management Act

(“FLPMA”). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We affirm the district court with respect to Plaintiffs’

NHPA and FLPMA claims, and we reverse and remand for

further proceedings with respect to one of their NEPA claims.

I. Factual and Procedural Background

This appeal involves Cortez’s proposal to amend the plan

of operations for an existing mineral exploration project, the

Horse Canyon/Cortez Unified Exploration Project (“the HC/

CUEP”), located in Lander and Eureka Counties in northeastern Nevada.4

 The BLM approved the original plan of operations for the HC/CUEP in 2001.5

 Pursuant to the 2001 plan of

operations, Cortez conducted exploration activities in a

30,548-acre area designated for the project (“project area”).

The HC/CUEP, in its original and amended plans, is a

phased exploration project. Phase I includes 150 drill sites, as

close as 200 feet apart, to determine what minerals are in the

target areas. Depending on what Cortez discovers, it may

move into Phase II of the HC/CUEP, in which there are about

125 drill sites, with three or more drill rigs working in close

proximity to one another. Finally, if Cortez chooses to continue exploring, it may move into Phase III, in which Cortez

4Although exploration activities under the HC/CUEP may eventually

lead to a mining project, the BLM has yet to authorize actual mining in

the project area. 

5The BLM approved the original HC/CUEP plan of operations as an

amendment to the Horse Canyon Exploration Project. The HC/CUEP

added 16,430 acres to the Horse Canyon Exploration Project by joining it

with the Cortez Gold Mine Expansion Project, for a total project area of

30,548 acres. 

8988 TE-MOAK TRIBE v. USDOI
can use approximately 100 drill holes within the Phase II drill

sites’ footprints. 

Under the original HC/CUEP plan of operations, Cortez

was permitted to disturb a total of 50 acres of land within the

entire project area over the course of all three phases of the

project. In July 2003, Cortez proposed an amendment to the

HC/CUEP plan of operations (“the Amendment”) that would

permit Cortez to disturb a total of 250 acres throughout the

project area—five times the amount approved by the BLM for

the original project. Under the Amendment, Cortez’s exploration would proceed according to the same phased operations

as outlined in the original HC/CUEP plan of operations, and

Cortez could not disturb more than 50 acres at any given time.

Cortez estimated that the HC/CUEP as amended would last

five years. 

Cortez’s exploration activities under the HC/CUEP represent only a small part of a long history of exploration and

mining activities in this area of Nevada. Active mining operations have existed since the 1860s, and the mining industry

continues to explore the area for further mineral deposits. In

addition to the HC/CUEP, Cortez currently operates a number

of mines in the area, and Cortez has plans to develop in the

near future two mineral deposits as the Pediment/Cortez Hills

Mine Project (“the Pediment/Cortez Hills project”).6

After Cortez proposed the Amendment in July 2003, the

6Cortez first discovered a mineral deposit on the western pediment of

Mount Tenabo (“the Pediment Deposit”) in 1993, before the approval of

the original HC/CUEP. Cortez originally submitted a proposed plan of

operations for the development of the Pediment Deposit in January 2001.

The Pediment Deposit is located within the original project area. As part

of the approval process for mining the Pediment Deposit, the BLM commissioned cultural surveys and studies of the area. Before the BLM completed the approval process, Cortez discovered another deposit in Cortez

Hills and sought approval from the BLM to mine the Pediment Deposit

and the deposit in Cortez Hills as one project. 

TE-MOAK TRIBE v. USDOI 8989
BLM prepared an Environmental Assessment (“EA”) pursuant to NEPA, assessing the environmental and cultural

resources of the project area and the potential impacts on the

environment. The EA “tiered” to, and thus incorporated, previous environmental impact statements and environmental

assessments, including those for the original HC/CUEP and

for the South Pipeline Project, another mining project located

near the project area.7

Although miners have been mining this area for generations, Native Americans have been there much longer.

According to their oral history, Te-Moak and other Western

Shoshone tribes have inhabited this area since time immemorial, and their religion and culture is inextricably linked to the

landscape of the area. The project area is located on their

ancestral lands.8 Mount Tenabo, located within the project

area, is considered a traditional locus of power and source of

life for the Western Shoshone, and figures in creation stories

and world renewal. The top of Mount Tenabo is used by the

Western Shoshone for prayer and meditation and although

mining activities have impeded this practice, the association

of the top of the mountain to Western Shoshone beliefs, customs, and practices remains. The project area also contains

many pinyon pine trees, a source of pine nuts that were once

a key component of the Western Shoshone diet and remain a

focal point of Western Shoshone culture and ceremony.

Although mining has impeded the collection of pine nuts,

remnant stands of pinyon pine continue to be used as traditional family gathering areas by contemporary Western Shoshone. Finally, because of the Tribe’s burial traditions, the

ancestors of the Western Shoshone are likely buried throughout the project area. 

7

“Tiering refers to the coverage of general matters in broader environmental impact statements . . . with subsequent narrower statements or

environmental analyses . . . incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.” 40 C.F.R. § 1508.28. 

8There is no reservation land in the project area. 

8990 TE-MOAK TRIBE v. USDOI
As a result of the Western Shoshone’s undisputed connection to the land, the BLM has consulted with the Tribe, as

required by NEPA and the NHPA, about sites of cultural and

religious significance in areas slated for exploration and mining, including areas covered by the HC/CUEP, its predecessor

project (the Horse Canyon Exploration Project), and the Pediment Project. This consultation led the BLM to designate two

sites within the project area as “properties of cultural and religious importance” or “PCRIs” that are eligible for inclusion

on the National Register of Historic Places: (1) Horse Canyon

and (2) the top of Mount Tenabo and the “White Cliffs” of

Mount Tenabo. 

The BLM sent a letter to the Tribe about the Amendment

one year after the BLM received Cortez’s proposal in July

2003. The BLM noted that there was already extensive documentation of traditional, cultural, and spiritual use sites within

or near the project area, but asked the Tribe for help in identifying any additional concerns and in developing any alternatives or methods that might eliminate or reduce potential

adverse impacts. The Tribe did not respond to this letter. 

About one month after soliciting the Tribe’s input, the

BLM submitted the draft EA for public comment on September 1, 2004, and sent the Tribe a copy to review. Although the

BLM attempted to contact the Tribe by telephone in the middle of September to ascertain whether the Tribe would be

commenting on the EA, the Tribe did not respond to those

calls. WSDP and GBMW, however, did contact the BLM in

early October regarding the proposed action and requested

information on the BLM’s consultation with the Western Shoshone and the location of drill holes, access roads, and other

details of the project. The BLM responded on October 20,

2004, but did not provide the organizations with the requested

project details. 

The BLM could not provide the organizations with the precise locations of the project’s exploration activities because

TE-MOAK TRIBE v. USDOI 8991
they were not specified in the proposed Amendment’s plan of

operations. Instead, the BLM conditionally approved the

Amendment, requiring Cortez to provide detailed maps prior

to surface-disturbing activities and to follow specific avoidance measures to protect cultural resources. The BLM issued

a Decision Record (“DR”) and Finding of No Significant

Impact (“FONSI”) (together a “DR/FONSI”) on October 22,

2004. 

Plaintiffs petitioned the State Director of the BLM for

review of the BLM’s DR/FONSI on November 24, 2004.

After granting Plaintiffs’ request for review, the State Director met with the Te-Moak Tribal Chairman, Te-Moak’s counsel, and other representatives from the Tribe, WSDP, and

GBMW, and also considered arguments from Cortez. After

completing his review, the State Director affirmed a modified

version of the DR/FONSI that imposed additional mitigation

measures. One such modification was an exclusion zone protocol to protect PCRIs eligible for inclusion on the National

Register of Historic Places. 

Dissatisfied with the State Director’s modified DR/FONSI,

Plaintiffs sought judicial review of the BLM’s action in May

2005 by filing suit against the DOI, the BLM, and several

BLM officers under the Administrative Procedure Act (APA).

See 5 U.S.C. § 551 et seq. The district court subsequently

granted Cortez’s motion to intervene. Ultimately, the parties

filed cross-motions for summary judgment. Concluding that

the BLM had complied with NEPA, the NHPA, and the

FLPMA, the district court granted Defendants’ motion for

summary judgment and denied Plaintiffs’ motion for summary judgment. Plaintiffs timely appealed.

II. Discussion

Plaintiffs argue that the BLM’s approval of the Amendment

violated NEPA, the NHPA, and the FLPMA. We review de

novo a district court’s grant and denial of summary judgment.

8992 TE-MOAK TRIBE v. USDOI
Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.

1997). Pursuant to the APA, our task is to determine whether

the agency’s final action was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law . . . .”

5 U.S.C. § 706(2)(A); see also Or. Natural Desert Ass’n v.

Bureau of Land Mgmt., 531 F.3d 1114, 1140 (9th Cir. 2008).

Here, we review the modified DR/FONSI issued by the BLM

State Director, which is the final agency action. See 43 C.F.R.

§ 3809.809(b). 

The arbitrary and capricious standard “requires us to ensure

that an agency has taken the requisite hard look at the environmental consequences of its proposed action, carefully

reviewing the record to ascertain whether the agency decision

is founded on a reasoned evaluation of the relevant factors.”

Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.

1992) (internal quotation marks and citations omitted).

A. National Environmental Policy Act

[1] We first consider Plaintiffs’ argument that the BLM’s

approval of the Amendment violated NEPA. NEPA imposes

a procedural requirement “(1) to ensure the agency will have

detailed information on significant environmental impacts

when it makes its decisions; and (2) to guarantee that this

information will be available to a larger audience.” Inland

Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754,

758 (9th Cir. 1996). The NEPA procedures used by agencies

“must insure that environmental information is available to

public officials and citizens before decisions are made and

before actions are taken.” 40 C.F.R. § 1500.1(b). “The NEPA

process is intended to help public officials make decisions

that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance

the environment.” 40 C.F.R. § 1500.1(c). Pursuant to these

goals, NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal

actions significantly affecting the quality of the human enviTE-MOAK TRIBE v. USDOI 8993
ronment . . . .” 42 U.S.C. § 4332(2)(C). An agency may first

prepare an EA, however, to determine whether it must prepare

an EIS or may issue a FONSI. 40 C.F.R. § 1508.9(a)(1). If the

agency issues a FONSI, then it may proceed with the proposed action. Klamath-Siskiyou Wildlands Ctr. v. Bureau of

Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). 

Here, the BLM prepared an EA, concluded on the basis of

the EA’s findings that the Amendment would not significantly

affect the environment, and issued a DR/FONSI. As noted

above, after Plaintiffs objected, the BLM State Director

affirmed the DR/FONSI with modifications that imposed an

exclusion zone protocol, in addition to the avoidance measures imposed in the original DR/FONSI, to protect PCRIs

eligible for listing on the National Register. Plaintiffs challenge the BLM’s modified DR/FONSI on the grounds that (1)

the BLM failed to take a “hard look” at the Amendment’s cultural and environmental impacts because it approved all three

phases of the Amendment without obtaining sufficient information about each particular phase of exploration activities;

(2) the BLM did not conduct sufficient analysis of reasonable

alternatives; and (3) the BLM did not conduct sufficient analysis of cumulative impacts. We consider these arguments in

turn.

1. Failure to Take a “Hard Look” at Cultural and

Environmental Impacts

Plaintiffs argue that the BLM failed to take a “hard look”

at the Amendment’s effects—specifically, effects on Western

Shoshone cultural resources—because it approved all three

phases of the Amendment without knowing the precise locations of the project’s activities, such as drill sites, access

roads, and support facilities. Plaintiffs contend that, without

these details, the BLM neither conducted a “hard look” analysis of the project, nor adequately informed the public of the

potential impacts of the project, as NEPA requires. The BLM

and Cortez argue that, in light of the exploratory nature of the

8994 TE-MOAK TRIBE v. USDOI
project, the BLM’s analysis and decision comply with NEPA.

They argue that the BLM sufficiently analyzed the potential

impact that the project could have and imposed avoidance and

mitigation measures that account for any unpredictable

impacts on cultural resources. 

[2] Although we have not previously reviewed the BLM’s

approval of a phased exploration project, the Interior Board of

Land Appeals (“IBLA”) reviewed a similar NEPA challenge

to a phased exploration project in Great Basin Mine Watch,

159 IBLA 324 (2003).9 Similar to the situation here, in Great

Basin Mine Watch, a mining company submitted to the BLM

a proposal to expand an earlier exploration project. The proposed expansion would disturb an additional 95.55 acres of

land for a total of 100 acres, within a 3,336-acre project area.

Id. at 327, 331. The BLM analyzed the proposed amendment

without specific details regarding the location of the Phase II

and III operations. Id. at 327. The IBLA determined that the

BLM’s failure to include details for phases other than the first

phase of the project did not violate NEPA, because “BLM

compensate[d] for the omission of precise sites for future

activities by analyzing the impacts of approximately 95.55

acres of additional surface disturbance anywhere within the

project area and imposing resource-specific stipulations and

mitigation measures for all activities throughout the entire

project area.” Id. at 354. 

[3] We agree with the IBLA that the BLM, in some cases,

may adapt its assessment of environmental impacts when the

specific locations of an exploration project’s activities cannot

reasonably be ascertained until some time after the project is

approved. NEPA’s ultimate focus is on the assessment of

environmental impacts and a project’s details are usually a

means to that end. An exploration project, however, inherently involves uncertainties; if mining companies knew the

9As we discuss below, the plaintiffs in Great Basin Mine Watch also

challenged a phased exploration project under the NHPA and the FLPMA.

TE-MOAK TRIBE v. USDOI 8995
precise location of mineral deposits before drilling, exploration would not be required. In approving mineral exploration

projects, the BLM must balance these uncertainties with its

duty under NEPA to analyze possible environmental impacts.

The IBLA’s approach in Great Basin Mine Watch strikes an

appropriate balance by holding that the BLM may approve an

exploration project without knowing the exact locations of

drill sites and other project activities. In order to do so, the

BLM must analyze the impact of drilling activities in all parts

of the project area and impose effective avoidance and mitigation measures to account for unknown impacts. 

We recognize that in Great Basin Mine Watch, unlike here,

the mining company provided the BLM with access road and

drill site locations for Phase I. See 159 IBLA at 347. We do

not believe, however, that this deficiency renders the BLM’s

approval of the Amendment unreasonable. Phase I exploration

activities, like those for Phases II and III, are uncertain by

design because Cortez must adjust the location of drilling

throughout the course of Phase I. Here, as in Great Basin

Mine Watch, the BLM was provided with dimensions of drill

sites and access roads, the methods used to construct them,

and the total surface disturbance area that would result from

the Amendment. With this information, the BLM assessed the

potential impacts from all three phases that might occur

throughout the project area. 

[4] Additionally, as in Great Basin Mine Watch, the BLM

imposed effective avoidance and mitigation measures to protect Western Shoshone cultural resources from impacts resulting from all three phases of the Amendment. In the modified

DR/FONSI, the BLM State director outlined these measures,

which prevent Cortez from disturbing land in exclusion zones

around PCRIs that are eligible for inclusion on the National

Register unless later authorized to do so by the BLM. Accordingly, before beginning exploration activities, Cortez must

submit 1:24,000 scale maps of the areas to be disturbed. Cortez may start exploration activities only if past surveys show

8996 TE-MOAK TRIBE v. USDOI
that no cultural resources are in the area. If the BLM determines that a Class III cultural resources survey is needed, an

archaeologist and a Native American observer will survey the

land and make recommendations.10 If Cortez finds previously

undiscovered cultural resources while conducting exploration

activities, it must cease activities within 100 meters of the discovery until the BLM determines whether or not the site is

eligible for the National Register and should thus be protected

by an exclusion zone. The BLM will delineate exclusion

zones to surround any newly discovered sites that might be

eligible for inclusion on the National Register.

[5] These measures compensate for Cortez’s inability to

identify the locations of drill sites and related activities for

Phases I through III before beginning exploration activities,

provide for phased assessment of areas not yet surveyed for

cultural resources at a Class III level, and permit the BLM to

protect cultural resources when so required by law. We therefore conclude that the BLM did not violate NEPA by approving the Amendment without knowing the precise locations of

drill sites, access roads, and other project activities for Phases

I through III.

10The BLM uses different types of surveys to evaluate areas for the

presence of cultural resources. A Class I survey is “a professionally prepared study that includes a compilation and analysis of all reasonably

available cultural resource data and literature, and a management-focused,

interpretative, narrative overview, and synthesis of the data.” BLM Manual, 8110 — Identifying and Evaluating Cultural Resources 8110.21A.1

(Rel. 8-73, 12/03/04) available at http://www.blm.gov/pgdata/etc/

medialib/blm/wo/Planning_and_Renewable_Resources/coop_agencies/cr_

publications.Par.44865.File.dat/Binder2-2.pdf (last visited June 11, 2010).

A Class II survey is a “probabilistic field survey” or “statistically based

sample survey” that “aid[s] in characterizing the probable density, diversity, and distribution of cultural properties in an area . . . . ” Id.

8110.21B.1. A Class III survey is an “[i]ntensive” survey that involves “a

professionally conducted, thorough pedestrian survey of an entire target

area . . . intended to locate and record all historic properties” and that

“provides managers and cultural resource specialists with a complete

record of cultural properties.” Id. 8110.21C.1, 8110.21C.3. 

TE-MOAK TRIBE v. USDOI 8997
2. Failure to Consider Reasonable Alternatives

[6] Plaintiffs also argue that the BLM violated NEPA

because the agency’s discussion of reasonable alternatives in

the Amendment’s EA is inadequate. “The purpose of NEPA

is to require disclosure of relevant environmental considerations that were given a ‘hard look’ by the agency, and

thereby to permit informed public comment on proposed

action and any choices or alternatives that might be pursued

with less environmental harm.” Lands Council v. Powell, 395

F.3d 1019, 1027 (9th Cir. 2005); see 42 U.S.C. § 4332(E)

(requiring agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning

alternative uses of available resources”). Agencies are

required to consider alternatives in both EISs and EAs and

must give full and meaningful consideration to all reasonable

alternatives. Native Ecosystems Council v. U.S. Forest Serv.,

428 F.3d 1233, 1245 (9th Cir. 2005); see also 40 C.F.R.

§ 1508.9(b). “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Idaho Conservation League v. Mumma, 956 F.2d

1508, 1519 (9th Cir. 1992) (quoting Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985)). 

[7] Plaintiffs first argue that the BLM should have considered the alternative of approving only Phase I of the Amendment, rather than approving all three phases of the project, or

that the BLM should have considered an alternative “where

the operator would be required to at least set forth up-front its

Phase I plans.” As discussed earlier, given the uncertainty of

the exploration activities, the BLM imposed mitigation measures designed to adequately protect cultural resources in all

phases of the Amendment. “NEPA does not require a separate

analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which

have substantially similar consequences.” Headwaters, Inc. v.

Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990)

8998 TE-MOAK TRIBE v. USDOI
(citing N. Plains Res. Council v. Lujan, 874 F.2d 661, 666

(9th Cir. 1989)). Because of the mitigation measures, the

environmental consequences of approving only the first phase

of the project versus all three phases are substantially similar;

therefore, the BLM was not required to address this alternative in the EA. 

[8] Plaintiffs next argue that the BLM violated NEPA by

failing to seriously analyze any alternative except Cortez’s

chosen project. Specifically, Plaintiffs argue that the BLM’s

analysis of the No Action Alternative was insufficient because

it consisted of only one paragraph.11 Plaintiffs’ argument is

not persuasive. Although brief, the BLM’s discussion was

sufficient because the No Action Alternative maintains the

status quo, i.e. the original HC/CUEP plan of operations. The

Amendment’s EA tiered to the EA for the original HC/CUEP,

in which the direct impacts of the exploration activities were

analyzed. See N. Idaho Cmty. Action Network v. U.S. DOT,

545 F.3d 1147, 1153 (9th Cir. 2008) (“[A]n agency’s obligation to consider alternatives under an EA is a lesser one than

under an EIS. . . . [W]ith an EA, an agency only is required

to include a brief discussion of reasonable alternatives.” (citations and internal quotation marks omitted)).

3. Failure to Assess Cumulative Impacts

[9] Plaintiffs finally contend that the BLM’s cumulative

impact analysis in the Amendment’s EA was insufficient.

“NEPA requires that where ‘several actions have a cumulative

. . . environmental effect, this consequence must be considered in an EIS.’ ” Neighbors of Cuddy Mountain v. U.S. For11Plaintiffs also suggest that the BLM violated NEPA by considering

only two actions—the proposed plan and the No Action Alternative. There

is no merit to this argument. In Native Ecosystems, we stated that “[t]o the

extent that [Plaintiff] is complaining that having only two final alternatives

—no action and a preferred alternative—violates [NEPA’s] regulatory

scheme, a plain reading of the regulations dooms that argument.” 428 F.3d

at 1246. 

TE-MOAK TRIBE v. USDOI 8999
est Serv., 137 F.3d 1372, 1378 (9th Cir. 1998) (quoting City

of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.

1990)); see 40 C.F.R. § 1508.25(c)(3). We also require that an

EA fully address cumulative environmental effects or “cumulative impacts.” See, e.g., Kern v. BLM, 284 F.3d 1062, 1076

(9th Cir. 2002) (“Given that so many more EAs are prepared

than EISs, adequate consideration of cumulative effects

requires that EAs address them fully.” (quoting Council on

Environmental Quality, Considering Cumulative Effects

Under the National Environmental Policy Act 4 (Jan. 1997),

also available at http://ceq.hss.doe.gov/nepa/ccenepa/

ccenepa.htm (last visited June 11, 2010) (emphasis added))).

“Cumulative impact is the impact on the environment which

results from the incremental impact of the action when added

to other past, present, and reasonably foreseeable future

actions . . . . Cumulative impacts can result from individually

minor but collectively significant actions taking place over a

period of time.” 40 C.F.R. § 1508.7.

Here, the BLM designated an area in which it needed to

analyze the Amendment’s cumulative impacts (“the cumulative effects area”). The Pediment/Cortez Hills project is a proposed mining operation located within the cumulative effects

area. The BLM acknowledged in the Amendment’s EA that

the Pediment/Cortez Hills project was a “reasonably foreseeable activity.” The BLM’s knowledge of the Pediment/Cortez

Hills project in 2004 can also be reasonably inferred by its

December 2005 publication of a “Notice of Intent to Prepare

an Environmental Impact Statement to Analyze the Proposed

Amendment to the Pipeline/South Pipeline Plan of Operations

(NVN-067575) for the Cortez Hills Expansion Project.” 70

Fed. Reg. 72,308 (Dec. 2, 2005). Therefore, the BLM was

required to analyze the cumulative impacts of the Amendment

and the Pediment/Cortez Hills project. See 40 C.F.R.

§ 1508.7. 

[10] In a cumulative impact analysis, an agency must take

a “hard look” at all actions. An EA’s analysis of cumulative

9000 TE-MOAK TRIBE v. USDOI
impacts “must give a sufficiently detailed catalogue of past,

present, and future projects, and provide adequate analysis

about how these projects, and differences between the projects, are thought to have impacted the environment.” Lands

Council, 395 F.3d at 1028. “General statements about ‘possible effects’ and ‘some risk’ do not constitute a ‘hard look’

absent a justification regarding why more definitive information could not be provided.” Neighbors of Cuddy Mountain,

137 F.3d at 1380. “[S]ome quantified or detailed information

is required. Without such information, neither the courts nor

the public . . . can be assured that the [agency] provided the

hard look that it is required to provide.” Id. at 1379. 

[11] Here, the Amendment’s EA included a cumulative

impacts section that purported to review past, present, and

reasonably foreseeable activities in the cumulative effects

area, by examining specific resources that may be affected.

The EA, however, failed to include the required “quantified

or detailed information.” See id. A comparison of the Amendment’s EA with the EAs in Klamath-Siskiyou clearly demonstrates that the BLM’s analysis of cumulative impacts in the

cumulative effects area did not adequately address the reasonably foreseeable mining activities of the Pediment/Cortez

Hills project. See 387 F.3d at 997. 

A review of the BLM’s analysis of the Amendment’s

cumulative impact on two of these resource sections—Cultural Resources and Native American Religious

Concerns—is instructive. We note that the bulk of the EA’s

discussion in these two sections focuses on the effects of the

Amendment itself, rather than the combined impacts resulting

from the activities of the Amendment with other projects.

Although part of the BLM’s analysis discusses “[t]he effects

of the activities to be conducted under the [proposed Amendment] within the cumulative effects study area,” only two of

the seven paragraphs in these two sections refer to cumulative

effects. The majority of the discussion focuses on how effects

of the Amendment’s additional exploration activities will be

TE-MOAK TRIBE v. USDOI 9001
avoided or mitigated. The EA’s discussion of the Amendment’s direct effects in lieu of a discussion of cumulative

impacts is inadequate. See id. at 994 (holding that an EA’s

cumulative impact analysis was inadequate when, among

other deficiencies, “[a] considerable portion of each section

discusses only the direct effects of the project at issue on its

own minor watershed”). 

[12] Moreover, although the EA refers to cumulative

effects in two paragraphs in the Cultural Resources and

Native American Religious Concerns sections, the EA does

not, in fact, discuss the existence of any cumulative impacts

on these resources.12 Instead, it concludes that “[n]o incremental cumulative effects would occur to cultural resources as a

result of the proposed project.” To reach this conclusion, the

EA reasons that all of the impacts from the expanded exploration activities will be avoided or mitigated and that all

“[e]xisting, proposed, and reasonably foreseeable activities

would avoid or mitigate all known and discovered resources.”

[13] This type of conclusory “analysis” can be found

throughout the cumulative impacts section. For example, the

Amendment’s EA devotes a scant three sentences to the

cumulative impacts to Water Resources, stating only that

“[i]mpacts to water resources . . . may include increased sedimentation and potential for erosion.” This, despite the discussion earlier in the EA that the Amendment “could potentially

result in direct impacts to groundwater resources where

groundwater is encountered in the drill holes,” and the BLM’s

prediction of significant impacts from dewatering as a result

of the Pediment/Cortez Hills project and other Cortez projects

12The EA’s brief reference to the “indirect cumulative effect [of] the

removal of artifacts by non-Cortez individuals using an expanded road

system to access previously inaccessible areas,” is more accurately

described as a direct effect rather than a cumulative one, because it would

result from the Amendment itself. Cf. 40 C.F.R. § 1508.7 (describing

cumulative impacts as a combination of impacts of the present action with

impacts of other actions). 

9002 TE-MOAK TRIBE v. USDOI
previously approved within the cumulative effects area. The

EA’s vague discussion of cumulative impacts can be found in

virtually every subpart of the section. 

In Klamath-Siskiyou, we rejected as inadequate EAs that

listed different environmental concerns (e.g. air quality, water

quality, etc.) with checkboxes marked “No,” indicating that

the environmental factor in question would not suffer any

cumulative effects. 387 F.3d at 995. A number of these factors, however, were annotated to note that they would or

could be impacted by the project, but that “[i]mpacts are

being avoided by project design.” Id. We held that this was

insufficient because “[t]he EA[s] [are] silent as to the degree

that each factor will be impacted and how the project design

will reduce or eliminate the identified impacts.” Id.

[14] We acknowledge that the EA here, unlike the EAs in

Klamath-Siskiyou, does describe some of the ways in which

the Amendment’s impacts will be mitigated. The Amendment’s EA contains a description of some mitigation measures, and the BLM State Director imposed additional

measures in his April 2005 decision. The EA, however, fails

to explain how Cortez will mitigate or avoid impacts to the

different resources resulting from the other existing, proposed, or reasonably foreseeable projects, including the

Pediment/Cortez Hills project. Further, as in KlamathSiskiyou, the EA fails to explain the nature of unmitigated

impacts of the Amendment’s expanded exploration activities

with other existing, proposed, and reasonably foreseeable activities.13

13Although the EA tiers to a number of EAs and EISs, including the

original HC/CUEP’s EA, these documents do not supplement the EA’s

incomplete analysis. Like the EA for the Amendment, the EA for the original HC/CUEP did not discuss cumulative effects; rather, it referred to the

direct effects of only the HC/CUEP within the cumulative effects area:

“The effects of the activities to be conducted under the Proposed Action

within the cumulative effects study area are expected to be minimal and

TE-MOAK TRIBE v. USDOI 9003
Despite the above deficiencies, Cortez argues that there

was no need for a cumulative impact analysis because there

are no cumulative impacts to analyze. Cortez suggests that it

is not enough to show that potential cumulative impacts were

not analyzed; rather, Plaintiffs must prove that cumulative

impacts will actually occur. Cortez thus adopts the district

court’s reasoning, which concluded that the cumulative

impacts analysis of the Amendment’s EA was sufficient

because Plaintiffs “failed to identify how [the Pediment/

Cortez Hills project] will have a cumulative impact when

combined with the HC/CUEP Amendment Project.” 

Although we have not yet precisely articulated the burden

that a plaintiff must bear to demonstrate that an agency should

have analyzed the cumulative impacts of a proposed project

along with other projects, our case law suggests that the burden is not an onerous one. In City of Carmel-By-The-Sea v.

United States Department of Transportation, 123 F.3d 1142

(9th Cir. 1997), we observed that the plaintiffs met their burden in raising a cumulative impacts claim under NEPA,

despite failing to specify a particular project that would cumulatively impact the environment along with the proposed project. Id. at 1161. We declined to impose a greater burden,

noting that “the [Defendants] failed first; they did not properly describe other area projects or detail the cumulative

impacts of these projects.” Id. Moreover, in KlamathSiskiyou, we noted that when “the potential for . . . serious

cumulative impacts is apparent,” the BLM needed to provide

more details of its cumulative impact analysis in an EA before

concluding that there were no significant cumulative effects.

387 F.3d at 996.

relatively short-term due to the nature of the proposed exploration activities and the special environmental protection measures to be used in the

study area . . . .” Further, other EISs to which the Amendment’s EA is

tiered—the Pipeline/South Pipeline Pit Expansion EISs and the South

Pipeline Project Final EIS—do not address impacts to Native American

uses of the land. 

9004 TE-MOAK TRIBE v. USDOI
[15] Applying City of Carmel and Klamath-Siskiyou here,

we conclude that in order for Plaintiffs to demonstrate that the

BLM failed to conduct a sufficient cumulative impact analysis, they need not show what cumulative impacts would

occur. To hold otherwise would require the public, rather than

the agency, to ascertain the cumulative effects of a proposed

action. See id. Such a requirement would thwart one of the

“twin aims” of NEPA—to “ensure[ ] that the agency will

inform the public that it has indeed considered environmental

concerns in its decisionmaking process.” Balt. Gas & Elec.

Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)

(emphasis added). 

[16] Instead, we conclude that Plaintiffs must show only

the potential for cumulative impact. Here, Plaintiffs more than

carry their burden by demonstrating that both the Amendment

and the Pediment/Cortez Hills project will directly impact the

same resources within the cumulative effects area, and thus

have the potential for cumulative impacts. Although not necessary, Plaintiffs bolster their claim of cumulative impacts to

Cultural Resources and Native American Religious Concerns

by submitting the ethnographic study prepared by the BLM

for the original Pediment Deposit mining project. The study

predicted that the mine could (1) impede the Western Shoshone’s visual and physical access to Mt. Tenabo; (2) decrease

the supply of pinyon pine available for harvesting by the

Western Shoshone; and (3) disturb Western Shoshone burial

sites. These same concerns could be affected by the exploration activities conducted under the Amendment, potentially

resulting in a total impact that is greater than that caused by

either the Pediment/Cortez Hills project or the Amendment.14

14Although the EA is vague about the activities that might impact Cultural Resources and Native American Religious Concerns, we do know

that drill rigs will be used and that there will be surface disturbance in 50-

acre plots, for a total of 250 acres. Because Mount Tenabo is located

within the project area, these activities could, like the Pediment/Cortez

Hills project, impede both physical and visual access to the mountain.

TE-MOAK TRIBE v. USDOI 9005
See Klamath-Siskiyou, 387 F.3d at 994 (“Sometimes the total

impact from a set of actions may be greater than the sum of

the parts. . . . [T]he addition of a small amount here, a small

amount there, and still more at another point could add up to

something with a much greater impact . . . .”). 

[17] We conclude that BLM’s analysis of the cumulative

impacts of the proposed Amendment and the Pediment/Cortez

Hills project was insufficient, and therefore violated NEPA.

NEPA requires the BLM to take a hard look at the cumulative

impacts of the Amendment and other projects within the

cumulative effects area; this it failed to do. We therefore hold

that the district court erred in granting summary judgment for

Defendants on this issue and remand to the district court with

instructions to grant summary judgment for Plaintiffs and

remand to the BLM for further proceedings. In light of our

disposition of this issue, we need not address Plaintiffs’ argument that the Amendment and the Pediment/Cortez Hills project are “cumulative actions” under NEPA and should be

considered in one comprehensive EIS. See Klamath-Siskiyou,

387 F.3d at 997, 1000 (observing that in light of an insufficient cumulative impact analysis, the court could not determine whether a single EA or EIS was needed); 40 C.F.R.

§ 1508.25(a)(2).15

Also like the Pediment/Cortez Hills project, surface disturbance from the

Amendment could disturb Western Shoshone burial sites. Finally, in the

discussion of forestry impacts, the EA predicts that “some [pinyon pine]

trees may be removed for construction of access roads and drill sites.” The

combined destruction of pinyon pine by both the Pediment/Cortez Hills

project and the Amendment could, cumulatively, result in the decreased

availability of pinyon pine nuts for harvesting. None of these possibilities

is discussed in the EA’s “Cultural Resources” or “Native American Religious Concerns” sections. 

15Because we conclude that the cumulative impact analysis was incomplete, we need not address Plaintiffs’ argument that the BLM failed to discuss the cumulative impacts of the Amendment with the Cortez

Underground Exploration Project and Cortez’s geothermal lease project.

9006 TE-MOAK TRIBE v. USDOI
In sum, although we conclude that in the EA, the BLM

took a hard look at the direct impacts of the Amendment and

that its discussion of reasonable alternatives was proper, we

hold that the BLM violated NEPA’s mandate by failing to

conduct a proper analysis of the cumulative impacts of the

Amendment and the Pediment/Cortez Hills project on Western Shoshone cultural resources in the area. We therefore conclude that the BLM’s approval of the Amendment was

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law . . . .” 5 U.S.C. § 706(2)(A).

B. National Historic Preservation Act

[18] Plaintiffs also argue that the BLM’s approval of the

Amendment violated section 106 of the NHPA. Section 106

requires the BLM to “take into account the effect of [an]

undertaking on any district, site, building, structure, or object

that is included in or eligible for inclusion in the National

Register [of Historic Places].” 16 U.S.C. § 470f. Like NEPA,

“[s]ection 106 of NHPA is a ‘stop, look, and listen’ provision

that requires each federal agency to consider the effects of its

programs.” Muckleshoot Indian Tribe v. U.S. Forest Serv.,

177 F.3d 800, 805 (9th Cir. 1999); cf. United States v. 0.95

Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993) (“NHPA is

similar to NEPA except that it requires consideration of historic sites, rather than the environment.”). 

The NHPA explicitly delegates authority to the Advisory

Council on Historic Preservation “to promulgate such rules

and regulations as it deems necessary to govern the implementation” of section 106. 16 U.S.C. § 470s. We have previPlaintiffs will have the opportunity to pursue these arguments before the

agency when the BLM reexamines the cumulative impacts section. We

also note that some of these arguments may be at issue in another case,

South Fork Band Council of Western Shoshone of Nevada v. United States

Department of the Interior, 588 F.3d 718 (9th Cir. 2009). 

TE-MOAK TRIBE v. USDOI 9007
ously determined that federal agencies must comply with

these regulations. See Pit River Tribe v. U.S. Forest Serv., 469

F.3d 768, 787 (9th Cir. 2006); Muckleshoot Indian Tribe, 177

F.3d at 805. The section 106 process requires an agency to

make a reasonable and good faith effort to identify

historic properties; determine whether identified

properties are eligible for listing on the National

Register . . . ; assess the effects of the undertaking

on any eligible historic properties found; determine

whether the effect will be adverse; and avoid or mitigate any adverse effects. The [agency] must confer

with the State Historic Preservation Officer

(“SHPO”) and seek the approval of the Advisory

Council on Historic Preservation (“Council”).

Muckleshoot Indian Tribe, 177 F.3d at 805 (citations omitted). 

In some cases, “[p]roperties of traditional religious and cultural importance to an Indian tribe . . . may be determined to

be eligible for inclusion on the National Register.” 16 U.S.C.

§ 470a(d)(6)(A). The BLM refers to such properties as “properties of cultural and religious importance” or “PCRIs.” The

NHPA implementing regulations require the BLM, at all

stages of the section 106 process, to consult with tribes that

“attach[ ] religious and cultural significance to historic properties that may be affected by an undertaking.” 36 C.F.R.

§ 800.2(c)(2)(ii). “The goal of consultation is to identify historic properties potentially affected by the undertaking . . . .”

Id. § 800.1. 

The BLM consulted with the Tribe in 2000 to determine if

there were any PCRIs within the project area, in connection

with Cortez’s original proposal to conduct HC/CUEP exploration activities. On July 27, 2001, the Tribe responded to the

BLM’s inquiries by submitting a map outlining the bounda9008 TE-MOAK TRIBE v. USDOI
ries of what it called “traditional cultural property.”

16 On the

basis of this submission, further consultations with the Tribe,

and various ethnographic reports regarding the area, the BLM

evaluated several sites to determine whether they were eligible for listing on the National Register.17 In April 2004, the

BLM determined that two sites were eligible: (1) Horse Canyon and (2) the top of Mount Tenabo and the White Cliffs of

Mount Tenabo (a combination of two of the evaluated PCRIs).18

Under section 106, the BLM was required to consider the

Amendment’s effects on the two sites, identify any adverse

effects, and avoid or mitigate any adverse effects. See 36

C.F.R. §§ 800.5, 800.6. The BLM, in the original DR/FONSI

for the Amendment, concluded that because of the avoidance

measures outlined in the EA, “there is no potential for impacts

to cultural resources from surface disturbance exploration

activities.” After Plaintiffs complained that the EA violated

the NHPA, the BLM State Director reviewed the DR/FONSI

and added the exclusion zone protocol. Plaintiffs continue to

argue, as they did before the BLM State Director, that the

BLM violated the NHPA because (1) the BLM failed to adequately consult with the Tribe and (2) the BLM State Director’s decision was incorrect and unsupported by the record.

16The term “traditional cultural property” or “TCP,” is a term used by

the National Park Service to refer to “properties of traditional religious

and cultural importance” that may be eligible for listing on the National

Register under 16 U.S.C. § 470a(d)(6)(A). See Patricia L. Parker &

Thomas F. King, National Park Service, National Register Bulletin 38,

Guidelines for Evaluating and Documenting Traditional Cultural Properties 1 (1998), available at http://www.nps.gov/history/nr/publications/

bulletins/pdfs/nrb38.pdf (last visited June 11, 2010). The term “TCP” is

analogous to “PCRI”; it describes land that Native American tribes have

identified as having cultural or religious significance. 

17Five sites were evaluated: (1) Shoshone Camp; (2) the top of Mount

Tenabo; (3) pinyon pine in the Pediment area; (4) the White Cliffs on the

Pediment side of Mount Tenabo; and (5) Horse Canyon. 

18The BLM has determined that other sites on the pediment, such as

pinyon camps and longer-term occupation areas, were National Register

eligible as ethnohistoric/archaeological sites, rather than as PCRIs. 

TE-MOAK TRIBE v. USDOI 9009
1. Insufficient Consultation with the Tribe

[19] We first consider Plaintiffs’ argument that the BLM

approved the Amendment without complying with its duty

under the NHPA to consult with the Tribe. The NHPA implementing regulations require agencies to provide a tribe with

“a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of

historic properties, including those of traditional religious and

cultural importance, articulate its views on the undertaking’s

effects on such properties, and participate in the resolution of

adverse effects.” 36 C.F.R. § 800.2(c)(2)(ii)(A).19 Further,

“[c]onsultation [with Indian tribes] should commence early in

the planning process, in order to identify and discuss relevant

preservation issues,” id., and “must recognize the

government-to-government relationship between the Federal

Government and Indian tribes,” id. § 800.2(c)(2)(ii)(C). 

Plaintiffs argue that the BLM failed to initiate consultation

with the Tribe in a timely fashion. Cortez proposed the

Amendment to the BLM in July 2003. The BLM waited a full

year to contact the Tribe, notifying the Tribe about the proposed Amendment in a July 28, 2004, letter after it had contacted all other “consulting parties.” The BLM sent this letter

to the Tribe approximately one month before the BLM submitted the EA for the Amendment for public comment and

three months before the BLM issued its first DR/FONSI. The

BLM also left at least two phone messages with the Tribe in

September. Although consultation about the Amendment

between the BLM State Director and the Tribe eventually

19In arguing that the BLM violated the NHPA’s consultation requirements, Plaintiffs argue that the BLM was not responsive to GBMW’s and

WSDP’s October 2004 requests for more information regarding the project. This argument fails because neither group is a federally recognized

tribe to which the NHPA’s consultation requirements extend nor do Plaintiffs point to evidence in the record showing that either party was acting

as “representatives designated or identified by the tribal government.” See

36 C.F.R. § 800.2(c)(2)(ii)(C). 

9010 TE-MOAK TRIBE v. USDOI
took place, the consultation occurred after the BLM issued its

DR/FONSI. 

The BLM and Cortez argue that, in light of the BLM’s previous consultation with the Tribe for the original HC/CUEP

and other projects in the area, the BLM provided the Tribe

with a sufficient “opportunity to identify its concerns about

historic properties” as provided by 36 C.F.R.

§ 800.2(c)(2)(ii)(A). We agree. Notably, this case has a somewhat unique historic background, because the BLM began

consulting with the Tribe while working on the original HC/

CUEP and other projects. Indeed, as a result of one of the ethnographic studies that was a part of this earlier process,

Mount Tenabo/White Cliffs and Horse Canyon were designated as National Register eligible PCRIs. We also note that

the Amendment did not propose to enlarge the project area in

which exploration would take place; rather, it increased the

amount of land that could be disturbed within the project area.

Plaintiffs acknowledge these past efforts by explicitly stating

that they do not challenge the BLM’s previous efforts to identify historical, cultural, or religious sites within the project

area. As emphasized by Plaintiffs, “[t]he issue is whether

BLM properly conducted government-to-government consultation on this Project . . . .” 

Here, Plaintiffs do not identify any new information that

the Tribe would have brought to the attention of the BLM had

it been consulted earlier in the approval process for the

Amendment. Significantly, they concede that the BLM’s

research and investigation of culturally important sites was

adequate for the original HC/CUEP EA. They thus fail to

show or even argue that early consultation would have prevented any adverse effect on any yet-to-be identified National

Register eligible PCRI. Additionally, Plaintiffs do not identify

any new information regarding how the additional exploration

would adversely affect the identified PCRIs, again failing to

demonstrate how early consultation with the Tribe might have

affected the BLM’s determination. 

TE-MOAK TRIBE v. USDOI 9011
Moreover, the fundamental purpose of the NHPA is to

ensure the preservation of historical resources. See 16 U.S.C.

§ 470a(d)(1)(A) (requiring the Secretary to “promulgate regulations to assist Indian tribes in preserving their particular historic properties” and “to encourage coordination . . . in

historic preservation planning and in the identification, evaluation, protection, and interpretation of historic properties”);

see also Nat’l Indian Youth Council v. Watt, 664 F.2d 220,

226 (10th Cir. 1981) (“The purpose of the National Historic

Preservation Act (NHPA), is the preservation of historic

resources.”). Early consultation with tribes is encouraged by

the regulations “to ensure that all types of historic properties

and all public interests in such properties are given due consideration . . . .” 16 U.S.C. § 470a(d)(1)(A); cf. Pit River

Tribe, 469 F.3d at 785-86 (holding that dilatory environmental review is insufficient to comply with NEPA because “inflexibility may occur if delay in preparing an EIS is allowed:

After major investment of both time and money, it is likely

that more environmental harm will be tolerated.” (quoting

Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir.

1988) (internal quotation marks and citations omitted))).

While the Plaintiffs are correct that the NHPA’s implementing regulations “recognize the government-to-government

relationship between the Federal Government and Indian

tribes,” they do so to ensure that consultation “be conducted

in a manner sensitive to the concerns and needs of the Indian

tribe . . . .” 36 C.F.R. § 800.2(c)(2)(ii)(C). 

[20] In sum and as reflected in the record, the BLM has

consulted with the Tribe regarding PCRIs within the project

area for many years. In addition, the Tribe has made no showing that it would have provided new information had it been

consulted again earlier in the Amendment’s approval process.

We therefore conclude that the BLM did not violate its obligation to consult with the Tribe and thus did not violate the

NHPA. 36 C.F.R. § 800.1; see also Muckleshoot Indian Tribe,

177 F.3d at 806-07; Morongo Band of Mission Indians v.

9012 TE-MOAK TRIBE v. USDOI
FAA, 161 F.3d 569, 582 (9th Cir. 1998); cf. Pit River Tribe,

469 F.3d at 785-86.20

2. Incorrect or Unsupported “No Effect” 

Determination

Next, Plaintiffs argue that, even if the Tribe was properly

consulted, the BLM’s “no effect” determination under the

NHPA was improper. We are not convinced. 

[21] First, we do not agree that approval of a phased project in its entirety always results in a violation of the NHPA.

As noted above, the NHPA, like NEPA, is a procedural statute requiring government agencies to “stop, look, and listen”

before proceeding with agency action. For the same reasons

that we concluded in the NEPA context that a phased exploration project in some circumstances can be fully approved

without all the details of the separate phases of exploration,

we reach the same conclusion in the NHPA context. See, e.g.,

Great Basin Mine Watch, 159 IBLA at 356 (holding that the

BLM did not violate the NHPA when it approved all phases

of a project without knowing exact locations of access roads

and drill sites, because it had surveyed the entire project area

for cultural properties, identified sites eligible for listing in the

National Register, and imposed conditions “to ensure avoidance of impacts to those eligible sites”). 

20We note that Plaintiffs also complain that the DR/FONSI relies on a

2004 Programmatic Agreement that the BLM entered into with the

Nevada SHPO, Cortez, and the Advisory Council on Historic Preservation, pursuant to 36 C.F.R. § 800.14(b), to guide the BLM’s management

of cultural resources in the project area. According to Plaintiffs, the 2004

agreement cannot substitute for consultation with the Tribe, because the

Tribe is not a signatory to the document. As the State Director’s decision

notes, however, the BLM did not rely on the 2004 agreement, but rather

on a 1992 Programmatic Agreement between the same parties. In light of

this fact, we place no significance on the initial DR/FONSI’s reference to

the 2004 Programmatic Agreement. 

TE-MOAK TRIBE v. USDOI 9013
Second, Plaintiffs’ argument that the exclusion zone procedures do not offer adequate protection to cultural resources

under the NHPA is without merit.21 According to Plaintiffs,

the National Register eligible PCRIs in the project area are of

a “landscape-scale” and therefore are not susceptible to protection by “zones.” Plaintiffs are correct that the PCRIs designated by the BLM as eligible for the National Register

encompass large areas of land. The NHPA, however, does not

mandate protection of all parts of an eligible PCRI. Section

106 requires a federal agency “[to] take into account the effect

of the undertaking on any district, site, building, structure, or

object that is included in or eligible for inclusion in the

National Register.” 16 U.S.C. § 470f; see also 36 C.F.R.

§ 800.6(b). The NHPA regulations, however, define an “effect” as an “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National

Register.” 36 C.F.R. § 800.16; see also id. § 800.5(a)(1)

(defining an “adverse effect” as the direct or indirect alteration of “any of the characteristics of a historic property that

qualify the property for inclusion in the National Register in

a manner that would diminish the integrity of the property’s

location, design, setting, materials, workmanship, feeling, or

association”). 

[22] Here, the eligible PCRIs’ characteristics described in

the BLM’s April 2004 report are discrete features such as the

top of Mt. Tenabo, the “white quartz ledge on the south face

of Mt. Tenabo” called the White Cliffs, a network of caves

within the mountain, and burial locations. Characteristics that

made Horse Canyon eligible included the specific resources

available there: perennial surface water and unique medicinal

21We also dismiss Plaintiffs’ argument that the BLM’s mitigation measures fail to require adequate consultation with the Tribe because the BLM

alone will make certain determinations without input from the Tribe, such

as the precise location of exclusion zones. Plaintiffs’ argument fails

because the actions to which Plaintiffs refer are post-consultation and

post-approval mitigation measures; section 106 does not mandate consultation at this post-approval stage of the project. 

9014 TE-MOAK TRIBE v. USDOI
and edible plants. Although it is understandable that the Tribe

values the landscape of the project area as a whole, the NHPA

requires that the BLM protect only against adverse effects on

the features of these areas that make them eligible for the

National Register. Plaintiffs have not demonstrated that the

exclusion zones will fail to prevent any adverse effects to

these features. 

[23] Because we conclude that the BLM’s approval of all

phases of the Amendment does not constitute a violation of

the NHPA, and that the exclusion zone protocol sufficiently

protects the features that make the designated PCRIs National

Register eligible, we hold that the BLM’s “no effect” determination under the NHPA was proper.

C. Federal Land Policy and Management Act

[24] Last, we address Plaintiffs’ argument that the BLM’s

approval of the Amendment violated the FLPMA. The

FLPMA requires that the BLM “by regulation or otherwise,

take any action necessary to prevent unnecessary or undue

degradation of the lands.” 43 U.S.C. § 1732(b). The BLM has

promulgated “surface management” regulations to implement

this statutory mandate. See, e.g., 43 C.F.R. § 3809 (partially

codifying Mining Claims Under the General Mining Laws;

Surface Management, 65 Fed. Reg. 69,998-70,132 (Nov. 21,

2000)). The surface management regulations require

“[a]nyone intending to develop mineral resources on the public lands [to] prevent unnecessary or undue degradation of the

land,” and they “establish[ ] procedures and standards to

ensure that operators and mining claimants meet this responsibility . . . .” 43 C.F.R. § 3809.1(a). By their terms, the regulations govern the proposals and activities of mining operators.

See id. § 3809.1(b). 

Plaintiffs contend that Cortez did not comply with several

regulations implementing the FLPMA. Specifically, Plaintiffs

argue that Cortez failed to submit required information with

TE-MOAK TRIBE v. USDOI 9015
its proposal for the Amendment as required by 43 C.F.R.

§ 3809.401. They also argue that the Amendment’s plan of

operations fails to satisfy a number of performance standards

set forth in 43 C.F.R. § 3809.420. Because Cortez allegedly

failed to fulfill its obligations under these regulations, Plaintiffs argue that the BLM failed to prevent unnecessary or

undue degradation of federal lands and therefore violated the

FLPMA when it approved the Amendment. We disagree. 

1. Failure to Provide Plan of Operations 

Components

Plaintiffs first argue that the BLM’s approval of the

Amendment without obtaining information from Cortez as

required in 43 C.F.R. § 3809.401(b) violated the FLPMA.

Section 3809.401(b) requires that mining operators “describe

the proposed operations at a level of detail sufficient for BLM

to determine that the plan of operations prevents unnecessary

or undue degradation . . . .” 43 C.F.R. § 3809.401(b). The

BLM “require[s] less information about smaller and simpler

mining operations.” 65 Fed. Reg. at 70,004. In general, information specified under § 3809.401(b)(2) “is only required to

the extent it is applicable to the operation.” 65 Fed. Reg. at

70,040-42; see also 43 C.F.R. §§ 3809.401(b)(2),

3809.401(b)(5). 

We quickly dispose of several of Plaintiffs’ challenges to

alleged deficiencies in the Amendment’s plan of operations

because they are simply not applicable to the Amendment.

We reject Plaintiffs’ vague and unsupported contentions that

(1) the plan of operations failed to contain a number of

detailed plans and descriptions as set forth in 43 C.F.R.

§ 3809.401(b), and (2) the BLM failed to require an interim

management plan under 43 C.F.R. § 3809.401(b)(5), or cross

sections, preliminary or conceptual designs, and operating

plans for approved projects under 43 C.F.R.

§ 3809.401(b)(2)(ii). These regulations apply to mining operations, not exploration projects like the HC/CUEP. See 43

9016 TE-MOAK TRIBE v. USDOI
C.F.R. § 3809.401(b)(2)(ii) (requiring information only “for

mining areas, processing facilities, and waste rock and tailing

disposal facilities”); 65 Fed. Reg. at 70,042 (explaining that

the interim management plan regulation was added pursuant

to Recommendation 5 of the National Research Council’s

Hardrock Mining on Federal Lands 101 (1999), which

addresses the need for interim plans for mine closure). 

With regard to the information that is required, we reject

Plaintiffs’ arguments that the BLM approved the Amendment

without the benefit of a complete description of the proposed

operations, a general schedule of operations, and a monitoring

plan. See 43 C.F.R. § 3809.401(b). These elements can be

found in the Amendment’s proposal and EA. Because Plaintiffs cannot demonstrate that the Amendment did not “describe the proposed operations at a level of detail sufficient

for BLM to determine that the plan of operations prevents

unnecessary or undue degradation,” these arguments fail. 43

C.F.R. § 3809.401(b). 

[25] We also reject Plaintiffs’ argument that the BLM’s

approval of the Amendment was improper because it did not

have “[m]aps of the project area at an appropriate scale showing the location of exploration activities, drill sites . . . and

access routes . . . .” 43 C.F.R. § 3809.401(b)(2)(i). They argue

that in so doing, the BLM failed to fulfill its obligation to prevent unnecessary and undue degradation under the FLPMA.

The IBLA considered a similar argument in Great Basin Mine

Watch and concluded that the BLM had not violated 43

C.F.R. § 3809.401(b)(2)(i) or the FLPMA when it approved

a plan of operations for a similarly phased exploration project

that did not “provide any significant details for the phases

other than Phase I.”

22 Great Basin Mine Watch, 159 IBLA at

22The IBLA’s decision considered the BLM’s compliance under the

pre-2001 regulations, which contained slightly different wording and were

organized into sections in a manner different than the current regulations.

159 IBLA at 345, n.9. The differences, however, do not affect our analysis

of the issues here. 

TE-MOAK TRIBE v. USDOI 9017
345; see id. at 347-48. In the NEPA and NHPA contexts, we

found Great Basin Mine Watch’s reasoning to be persuasive

regarding the level of detail required for approval of phased

exploration projects. We have no reason to resolve this issue

any differently in the FLPMA context. We therefore conclude

that the BLM’s approval of the Amendment without all of the

details for the separate phases of exploration did not violate

the FLPMA.

2. Failure to Meet Performance Standards

Plaintiffs also argue that the BLM violated the FLPMA

when it approved the Amendment’s plan of operations,

despite its failure to meet two of the performance standards

set forth in 43 C.F.R. § 3809.420. Although a plan of operations must comply with these performance standards, the

BLM may “approve [a] plan of operations subject to changes

or conditions that are necessary to meet the performance standards of § 3809.420 and to prevent unnecessary or undue degradation.” 43 C.F.R. § 3809.411(d)(2). 

Plaintiffs first contend that Cortez failed to specify access

routes for the Amendment’s additional exploration activities

in violation of 43 C.F.R. § 3809.420(b)(1). That regulation

requires that, “[w]here a notice or a plan of operations is

required, it shall specify the location of access routes . . . .”

While Cortez did not specify access routes at the time of

approval, the BLM set forth in the Amendment’s EA, the

original DR/FONSI, and the modified DR/FONSI, that Cortez

needed to “submit 1:24,000 maps showing the locations of the

proposed drill pads and access roads” prior to any earthdisturbing activities. 

[26] Plaintiffs also argue that, in approving the Amendment, the BLM failed to protect cultural resources pursuant to

43 C.F.R. § 3809.420(b)(8). The regulation mandates that:

(i) Operators shall not knowingly disturb, alter,

injure, or destroy any scientifically important pale9018 TE-MOAK TRIBE v. USDOI
ontological remains or any historical or archaeological site, structure, building or object on Federal

lands.

(ii) Operators shall immediately bring to the attention of the authorized officer any cultural and/or

paleontological resources that might be altered or

destroyed on Federal lands by his/her operations, and

shall leave such discovery intact until told to proceed

by the authorized officer. The authorized officer

shall evaluate the discoveries brought to his/her

attention, take action to protect or remove the

resource, and allow operations to proceed within 10

working days after notification to the authorized

officer of such discovery.

43 C.F.R. § 3809.420(b)(8)(i)-(ii). As it did with the access

routes in the Amendment’s EA and DR/FONSI, the BLM

imposed conditions on the Amendment’s plan of operations

that served to fulfill this performance standard. Under the EA

and DR/FONSI, once Cortez has provided maps showing specific drill sites, the BLM must take affirmative steps to evaluate cultural resources in the area and to protect those

resources through avoidance measures.23 Further, the EA

23The EA acknowledges that in some cases, proposed earth-disturbing

activities may not be able to avoid sites eligible for the National Register.

Section 3809.420(b)(8)(ii), however, does not appear to require an operator to avoid cultural resources at any cost: the operator “shall leave such

discovery intact until told to proceed by the authorized officer.” Id. 

In their reply brief, Plaintiffs argue that 43 C.F.R. § 3809.420(b)(8)

mandates the protection of a broader set of cultural resources than are protected by the NHPA. For this reason, Plaintiffs argue, the mitigation measures imposed by the BLM, which are directed only at protecting PCRIs

eligible for inclusion on the National Register pursuant to the NHPA, do

not protect other cultural resources and therefore do not fulfill the performance standard in § 3809.420(b)(8). Because Plaintiffs failed to pursue

this line of argument in their opening brief, and because Plaintiffs fail to

support this argument beyond its bare assertion, we deem the argument

waived. See Entm’t Research Group v. Genesis Creative Group, 122 F.3d

1211, 1217 (9th Cir. 1997). 

TE-MOAK TRIBE v. USDOI 9019
requires that Cortez, “within 24 hours, notify proper authorities and the BLM if subsurface cultural resources are discovered during construction, operation, or reclamation activities”

and to “immediately cease earth-disturbing activities within

100 meters of the discovery, until the discovery can be examined by the proper authorities and/or a BLM-approved archaeologist.” Under the EA, Cortez can “only resume [earthdisturbing activities] once cleared by the BLM or other appropriate authority.” These procedures were later modified by the

State Director to provide even further protection to any newly

discovered historical, archaeological, or paleontological

resources. Consequently, we conclude that the Amendment

meets the performance standards in §§ 3809.420(b)(1) and

3809.420(b)(8) and affirm the district court’s award of summary judgment to the BLM and Cortez on Plaintiffs’ FLPMA

claims.

III. Conclusion

Because the BLM approved the Amendment to the HC/

CUEP in violation of NEPA, we reverse the district court’s

award of summary judgment to Defendants and remand to the

district court so that it may enter summary judgment in favor

of Plaintiffs on their NEPA claim and remand the matter to

the BLM for further proceedings. On the NHPA and FLPMA

claims, we affirm the district court’s grant of summary judgment to Defendants. AFFIRMED in part and REVERSED in

part, and REMANDED for further proceedings consistent

with this opinion. Each side shall bear its own costs on

appeal.

9020 TE-MOAK TRIBE v. USDOI