### FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



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C ENTER FORB IOLOGICAL D IVERSITY ; W ESTERN L AND E XCHANGE P ROJECT ; S IERRA C LUB
, Plaintiffs-Appellants, No. 07-16423

v. D.C. No.



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U NITED S TATES D EPARTMENT OF THE CV-01-01758-ROS I NTERIOR ; B UREAU OF L AND OPINION M ANAGEMENT
,

Defendants-Appellees,

A SARCO LLC, Defendant-Intervenor-Appellee. 

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Appeal from the United States District Court
for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Argued and Submitted February 10, 2009—San Francisco, California

Filed September 14, 2009

Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher; Dissent by Judge Tallman

13269COUNSEL

Roger Flynn, Jeffrey C. Parsons, WESTERN MINING ACTION PROJECT, Lyons, Colorado, for the appellants. 13272 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIEdward S. Geldermann, Mark R. Haag, US DEPARTMENT OF JUSTICE, Washington, D.C., Cynthia M. Parsons,OFFICE OF THE U.S. ATTORNEY, Phoenix, Arizona, Norman Daniel James, FENNEMORE CRAIG PC, Phoenix, Arizona, for the appellees.

OPINION

W. FLETCHER, Circuit Judge:

The Center for Biological Diversity, the Western Land Exchange Project, and the Sierra Club (collectively, “Appellants”) bring suit against Asarco LLC ( “Asarco ”), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, “BLM ”). Appellants contend that the BLM’s approval of a land exchange violates the National Environmental Policy Act ( “NEPA ”), 42 U.S.C. §§ 4321-70; the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701-87; and the Mining Law of 1872, 30 U.S.C. §§ 21-54.

If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco’s use ofthe land would not be subject to the requirements of the Mining Law of 1872.

If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on theland unless it complies with the Mining Law of 1872. Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations ( “MPO ”) to the BLM. The MPO would have to includedetailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed. 13273

C ENTER FORB IOLOGICAL D IVERSITY v. USDOIAs 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. The BLM made the same assumption in its Record of Decision ( “ROD ”) approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences — and the implications for the public interest — would differ depending on whether the proposed land exchange occurs.

Because the BLM has conducted no comparative analysis,
we hold that it has not “taken a ‘hard look’ at the environmental consequences of its proposed action ” in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood , 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was “arbitrary and capricious ” in violation of FLPMA. Webb v. Lujan , 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving
the actions of the BLM.

I. Background

Asarco owns and operates the Ray Mine complex in Gila and Pinal Counties, Arizona. The complex includes a 265,000 ton-per-day open pit copper mine, a copper smelter with an acid plant, solution extraction/electrowinning plants, mills, concentrators, leaching systems, and related support facilities. Ore from the mine is transported eighteen miles to the Hayden Smelter for processing. In 1996, the complex produced 430 million pounds of copper anodes, over 70 million pounds of copper cathodes, 1.3 million ounces of silver in concentrate, and 623,000 tons of sulfuric acid. The Ray Mine is the second most productive copper mine in Arizona and the third most productive copper mine in the United States. 13274 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIIn 1994, Asarco proposed a land exchange with the BLM in order to consolidate its holdings and to support and expand its mining operations at the complex. As amended in 1997, the proposed land exchange would convey to Asarco in fee simple thirty-one parcels of public land totaling 10,976 acres (the “selected lands ”). In return, Asarco would convey to the BLM eighteen parcels of private land totaling roughly 7,300 acres (the “offered lands ”). FLPMA authorizes the Secretary of Interior to approve land exchanges. 43 U.S.C. § 1716.

The United States owns and the BLM administers as full estates 8,196 acres of the selected lands. The remaining 2,780

acres of the selected lands are owned and administered as “split estates. ” Asarco owns or is purchasing, in transactions not at issue in this appeal, the surface estate of these lands,

while the United States owns and the BLM administers the mineral estate. Twenty-three of the thirty-one parcels ofselected lands are located near the Ray Mine and the community of Ray, Arizona. Five of the parcels are located twelveto fifteen miles southeast of the Ray Mine, near the communities of Hayden and Winkleman, Arizona. The remaining three parcels are located about 50 miles west of the Ray Mine near the community of Casa Grande, Arizona.

The selected lands provide important wildlife and plant habitat, including high priority reintroduction habitat fordesert bighorn sheep, 6,860 acres of endangered desert tortoise habitat, and potential habitat for threatened and endangered birds. Upland plant communities cover 99.2% of the selected lands and include riparian plant communities and three plant species designated for special status by the BLM. Some of the selected lands are immediately adjacent to the White Canyon Area of Critical Environmental Concern, andsome are adjacent to or in close proximity to the White Canyon Wilderness. The selected lands include seventy-eight archaeological sites, of which forty are regarded as eligible for nomination to the National Register of Historic Places. 13275 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIAsarco and the BLM are forthright in stating that they foresee the following five uses for the selected lands following theland exchange. These uses are described with specified acreage in the FEIS as follows:

(1) Existing mining: 272 acres (2%) already have had and
would continue to have substantial surface disturbance due to Asarco’s mining operations.

(2) Production operations and support areas: 3,614 acres (33%) would be used to expand open pits, construct haul roads, and deposit solution-extraction rock. This would result
in substantial disturbance to between 25% and 100% of the
land surface.

(3) Transition: 875 acres (8%) would be used as “raveling

areas ” around overburden and leach rock deposition areas,access roads, storm water diversion ditches, and administrative facilities. This would result in some disturbance to
between 5% and 25% of the land surface.

(4) Intermittent use: 4,481 acres (41%) would not be subject to direct mining activity and would be used to consolidate Asarco’s ownership and to buffer neighboring landowners from mining operations.

(5) Long-range prospect: 1,733 acres (16%) could be used for mine development and support in the future resulting in an unknown degree of surface disturbance.

The selected lands are now encumbered by 751 mining claims or mill site claims under the Mining Law of 1872, of which 747 are held by Asarco. These claims are unpatented,and the BLM has not determined if they are valid. Every parcel of the selected lands except for Parcel CH-5 (comprising 480 acres) is encumbered by at least one such claim.

The offered lands comprise five parcels or groups of parcels: the Knisely Ranch Parcels (160 acres), the Gila River 13276 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIParcel (320 acres), the Tomlin Parcels (320 acres), theMcCracken Mountain Parcels (6,384 acres), and the Sacramento Valley Parcel (120 acres). Following the land exchange, no mining claims would exist or be permitted onthe Knisely Ranch Parcels. The BLM would petition to withdraw the Gila River Parcel and Tomlin Parcels from mineral entry, which, if successful, would mean that only persons who had established a valid mining claim before withdrawal would be permitted to mine on those parcels. Clouser v. Espy , 42F.3d 1522, 1524-25 (9th Cir. 1994). The McCracken Mountain Parcels, which comprise 87% of the offered lands, and the Sacramento Valley Parcel would remain open to mineral entry. Of the 7,300 acres of offered lands, 1,126 acres exhibit moderate potential for locatable mineral resources, with the rest exhibiting low potential for locatable mineral resources.

The offered lands include riparian plant communities and important wildlife habitat, including habitat for some specialstatus species, potential habitat for some threatened or endangered species, including peregrine falcons, and proposed critical habitat for the cactus ferruginous pygmy owl. The offeredlands include segments of the Gila River Riparian Management Area, the Black Mountains (Burro) Herd Management Area, the Cerbat (Wild Horse) Herd Area, the Big Sandy (Burro) Herd Management Area, and the McCracken Desert

Tortoise Habitat Area of Critical Environmental Concern.

Between 1995 and 1997, the BLM consulted with variousfederal, state, and local agencies, elected representatives, nongovernmental organizations, tribal governments, and privateindividuals concerning the land exchange. The BLM published a Draft Environmental Impact Statement ( “DEIS ”) in
October 1998.

In January 1999, after having reviewed the DEIS, the federal Environmental Protection Agency ( “EPA ”) sent the BLM a three-page single-spaced letter accompanied by thirteen 13277 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIpages of single-spaced comments. The EPA’s letter stated,
inter alia :

Over the past several decades, approximately one
billion tons of material have been excavated at the Asarco Ray complex. The proposed action wouldenable Asarco to excavate and process approximately three billion more tons over the next 40 years. In several meetings, letters, and conference calls with BLM since scoping for this project beganin 1994, EPA has recommended that the DEIS provide certain information that we believe would be useful and relevant in a NEPA analysis for a landexchange where the foreseeable future uses of mining are known. In our comment letter on the preliminary DEIS, we stated that the document did not appear to have evaluated all reasonable alternativesand strongly recommended that additional information regarding the alternatives be included in the

DEIS . In that letter and several others to the DEIS, we also recommended that the potential impacts of the land exchange and the foreseeable future mining be discussed in much greater detail in the DEIS and specifically outlined the needed information.

Although BLM has not received an acceptable mine plan of operations (MPO) from Asarco, it appears that Asarco has fairly specific plans for the selected parcels. We believe that additional detailed information regarding geology, geochemistry, hydrology, and biological resources is relevant andnecessary for this analysis to constitute full disclosure under NEPA. It is also evident that all reasonable alternatives have not been evaluated and that impacts of foreseeable activities on the selected lands have not been sufficiently addressed in the DEIS. We are extremely dismayed that the BLM has ignored most of our recommendations in finalizing 13278 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIthe DEIS and are particularly troubled that the DEIS was published at a time when our headquarters officewas still discussing the issues with BLM headquarters and the two agencies had not yet come to a resolution.

We have rated this DEIS as EO-2 — Environmental Objections-Insufficient Information. We have strong objections to the proposed project because webelieve there is potential for significant environmental degradation that could be corrected by project modification or other feasible alternatives . . . . We continue to contend that a substantial amount of information should be added to the EIS for BLM to meet its public disclosure obligation.

(emphasis added).

Public hearings were held on the DEIS. The BLM received sixty-one comment letters or notifications of no comment from interested individuals and groups. After reviewing andresponding to these comments, the BLM issued its Final Environmental Impact Statement ( “FEIS ”) in June 1999. The FEIS differs from the DEIS in only minor respects.

The FEIS analyzed the environmental, cultural, and socioeconomic impacts of the proposed land exchange; the “Buckeye Alternative, ” under which the selected lands would decrease to 10,176 acres and the offered lands to 6,659 acres;
the “Copper Butte Alternative, ” under which the selected lands would decrease to 9,161 acres and the offered lands to 5,601 acres; and the “No Action Alternative, ” under which no lands would be exchanged. The FEIS identified but elected not to study in depth seven other alternatives.

The FEIS stated that the “foreseeable uses of the selected lands are mining-related uses and are expected to occur under
all alternatives

. ” (emphasis added). As explained in the FEIS: 13279 C ENTER FORB IOLOGICAL D IVERSITY v. USDOI[A] land exchange is not required for mining-related activities to take place on the selected lands. Asarco currently holds the vast majority of the mining claims on the public lands selected for exchange, and through these mining claims, Asarco has the right to pursue development on the selected lands for mining or mining-related uses . . . .

That is, as stated in the FEIS “foreseeable uses of the selected
lands are assumed to be the same for all alternatives. ” (emphasis added).

The BLM’s stated assumption that mining was the foreseeable use for the selected lands and that the manner and intensity of mining would be “the same for all alternatives ” — thatis, whether or not there was a land exchange — played a critical role in the FEIS. The FEIS contains an analysis of theenvironmental consequences of mining for upland plant communities, riparian plant communities, state and BLM special status plants, wildlife habitats, wildlife (including state andBLM special status wildlife as well as wildlife deemed threatened and endangered under federal law), and other resources. However, the FEIS contained only a single analysis, because the BLM assumed that the environmental consequences of mining would be the same under every alternative. Because the BLM assumed that the environmental consequences would be the same under every alternative, the FEIS contains no comparative analysis of those alternatives.

In April 2000, the BLM issued a Record of Decision (“ROD”) in which it did two things. First, the BLM amended two existing Resource Management Plans ( “RMPs ”) to change the designation of the selected lands under FLPMA.
It amended the 1988 “Phoenix RMP ” to change the designation of 9,906 acres in the White Canyon Resource Conservation Area from “retention ” to “disposal. ” And it amended the
1993 “Safford District RMP ” to change the designation of 433 acres in the Long-Term Management Area from “reten13280 C ENTER FORB IOLOGICAL D IVERSITY v. USDOItion” to “disposal. ” These changes in the Phoenix and Safford District RMPs were prerequisites to the conveyance of the selected lands from public ownership. As a consequence ofthese changes, the BLM would no longer be required to manage the selected lands as multiple-use lands under FLPMA.

Second, the BLM approved the proposed land exchange. Section 206 of FLPMA forbids land exchanges unless the “public interest will be well served. ” 43 U.S.C. § 1716(a). This section directs the Secretary of Interior to “give full consideration” to better land management and “needs for landsfor the economy, . . . food, fiber, minerals, and fish and wildlife” when determining the public interest. Id. In part, the ROD justified the exchange by denying that any harm to thepublic would result from conveying the selected lands to private ownership. The ROD concluded that the public interest would not be harmed by the conveyance by assuming, as the FEIS had assumed, that mining would be conducted in the same manner whether or not the exchange occurred. The

ROD stated that “the BLM considers the continuation of mining as the foreseeable use of most of the selected federal lands whether the exchange occurs or not. ”

The EPA, the federal Bureau of Indian Affairs, and the Sierra Club objected to the ROD. The BLM summarized their objection as follows: “A Mine Plan of Operation is necessary to complete analysis of the land exchange impacts. BLM’s assumption is wrong that the foreseeable use reflects mining that would take place whether or not land exchange occurs. ” (emphasis added). The ROD did not answer the objection, but instead referred the reader to the FEIS. The ROD stated, “Thisissue has been addressed in the FEIS General Response section 7.4.5 and 7.4.6. ” In those sections of the FEIS, the BLM responded to the first sentence of the objection, stating that MPOs are not required for mining that is anticipated after the selected lands become privately owned. However, the BLM

did not respond to the second sentence (italicized above), 13281 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIwhich objected that the BLM’s “assumption ” that the same mining would occur was “wrong. ”

In July 2001, Appellants filed an administrative appeal and a request to stay the land exchange with the Interior Board of Land Appeals ( “IBLA ”). When IBLA failed to act on the Appellants’ request within forty-five days as mandated by 43 C.F.R. § 4.21(b)(4), Appellants filed suit in federal districtcourt. IBLA then stayed the land exchange pending its disposition of the appeal, and the district court suspended its proceedings pending a decision from IBLA.

In August 2004, IBLA denied the Appellants’ appeal. Ctr. for Biological Diversity, et al. , 162 IBLA 268 (2004). One Administrative Judge wrote separately, concurring only in the result. For her, the difficult issue was whether the BLM had complied with NEPA. She wrote:

I am perturbed by BLM’s assertion that foreseeable consequences of this exchange are not possible to predict or are speculative. It appears that the record contains considerable information indicating where
within the selected lands mineral resources are located and where they are not. It is this information
that forms the basis for the classification of foreseeable uses ( “existing, ” “production, ” “transition, ” “intermittent use, ” and “long-range prospect ”) identified for the selected lands in the FEIS. Further, BLM changed its land use designations for the vast majority of the selected lands in the Phoenix and Safford Resource Management Plans from “resource
conservation area ” and “long term management

area” to “suitable for disposal ” in the context of implementing this exchange decision . . . . Combining these two points of information — the knowable classifications within the context of mining of the selected lands with the change in land designation — made foreseeable impacts more easily presentable in 13282 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIa manner not easily found in this EIS and less speculative than BLM suggests.

Id. at 291 (Hemmer, Admin. J., concurring) (emphasis added) (internal citations omitted).

On June 6, 2007, the district court granted summary judgment, rejecting Appellants’ challenge to the proposed land exchange. Appellants timely appealed to this court.

II. Standard of Review

This court reviews the district court’s grant of summary judgment de novo. See, e.g.

, United States v. Tacoma , 332 F.3d 574, 578 (9th Cir. 2003). The Administrative Procedure Act authorizes this court to set aside agency actions, findings,
or conclusions that are “unsupported by substantial evidence ” in the record. 5 U.S.C. § 706(2)(E). Under NEPA, “we mustensure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action . . . . [W]e mustdefer to an agency’s decision that is ‘fully informed and wellconsidered.’ However, we need not forgive a ‘clear error of judgment.’ ” Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1211 (9th Cir. 1998) (internal citations omitted). We review the BLM’s interpretation of FLPMA
under the deferential “arbitrary and capricious ” standard. See Webb v. Lujan , 960 F.2d 89, 91 (9th Cir. 1992).

III. Discussion

For the reasons that follow, we hold that substantial evidence in the record does not support the BLM’s assumption that mining would occur on the selected lands in the same manner regardless of the land exchange. Therefore, we hold that the BLM violated NEPA by failing to take a “hard look ” at the environmental consequences of the exchange in the
FEIS. We hold further that the conclusion in the ROD that the proposed land exchange is in the “public interest ” within the 13283 C ENTER FORB IOLOGICAL D IVERSITY v. USDOImeaning of FLPMA was arbitrary and capricious because it was based on an erroneous assumption. We do not reach the question whether the Mining Law of 1872 would be violated if the land exchange were to be completed in its current form. We discuss NEPA, FLPMA, and the Mining Law in turn.

A. NEPA

In NEPA, Congress recognized the “profound impact ” of human activities, including “resource exploitation, ” on the environment and declared a national policy “to create and
maintain conditions under which man and nature can exist in productive harmony. ” 42 U.S.C. § 4331(a). To further this policy, NEPA “establishes ‘action-forcing’ procedures thatrequire agencies to take a ‘hard look’ at environmental consequences.” Metcalf v. Daley , 214 F.3d 1135, 1141 (9th Cir. 2000) (quoting Robertson v. Methow Valley Citizens Council

, 490 U.S. 332, 348 (1989)). Chief among these procedures is the preparation of an environmental impact statement ( “EIS ”).

[1] NEPA requires preparation of an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Every EIS must “provide [a] full and fair discussion of significant environmental impacts ” of the proposed agency action. 40 C.F.R. § 1502.1. An EIS serves two purposes:

First, [i]t ensures that the agency, in reaching itsdecision, will have available, and will carefully consider, detailed information concerning significant environmental impacts. Second, it guarantees that
the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation
of that decision.

Dep’t of Transp. v. Pub. Citizen , 541 U.S. 752, 768 (2004) (internal quotation marks and citations omitted). 13284 C ENTER FORB IOLOGICAL D IVERSITY v. USDOI[2] In addition to the proposed agency action, every EIS

must “[r]igorously explore and objectively evaluate all reasonable alternatives ” to that action. 40 C.F.R. § 1502.14(a). The analysis of alternatives to the proposed action is “ ‘the heart of the environmental impact statement.’ ” Or. Natural Desert Ass’n v. Bureau of Land Mgmt. , 531 F.3d 1114, 1121 (9th Cir. 2008) (quoting 40 C.F.R. § 1502.14). “The existence
of reasonable but unexamined alternatives renders an EIS inadequate.” Friends of Southeast’s Future v. Morrison , 153 F.3d 1059, 1065 (9th Cir. 1998).

The FEIS prepared by the BLM examined the environmental impacts of the proposed land exchange and three alternatives: the Buckeye Alternative, the Copper Butte Alternative,
and the No Action Alternative. Under the No Action Alternative, the exchange would not proceed, and the selected lands would remain under public ownership. A no action alternative in an EIS allows policymakers and the public to compare theenvironmental consequences of the status quo to the consequences of the proposed action. The no action alternative is

meant to “provide a baseline against which the action alternative[ ]” — in this case, the land exchange — is evaluated. Id

. A no action alternative must be considered in every EIS. See 40 C.F.R. § 1502.14(d).

For the reasons that follow, we conclude that the FEIS improperly assumed that the environmental consequences of the land exchange alternative and the No Action Alternativewould be the same, and that this assumption fatally undermined the analysis in the FEIS.

Under the Mining Law of 1872, Asarco has a right to engage in mining on the selected lands even if the exchangedoes not proceed. Asarco has this right based on its 747 unpatented mining and mill site claims. See, e.g. , 30 U.S.C. § 612(a) (holders of unpatented mining claims can engage in“prospecting, mining or processing operations and uses reasonably incident thereto ”); 43 C.F.R. §§ 3809.5, 3809.10(a) 13285 C ENTER FORB IOLOGICAL D IVERSITY v. USDOI(claimants can engage in “casual use ” mining on unpatented claims without even notifying the BLM); United States v. Shumway , 199 F.3d 1093, 1105 (9th Cir. 1999) ( “The owner of a mining or mill site claim does not need a patent, or a vested right to issuance of a patent, to possess and use the property.”); Independence Mining Co. v. Babbitt , 105 F.3d 502, 506 (9th Cir. 1997) (an unpatented claim “entitles the claimant to ‘the right to extract all minerals from the claim without paying royalties to the United States’ ”) (citation omitted).

The BLM based its assumption that mining would occur in the same manner with or without the land exchange on the fact that Asarco already holds mining claims on the selected lands. However, if the proposed land exchange does not occur, the selected lands would remain in public hands. In that event, Asarco’s ability to conduct mining operations on itsclaims would be subject to the Mining Law of 1872. In contrast, if the proposed land exchange occurs, Asarco would own the selected lands in fee simple. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law. A description of the operation of the Mining Law shows that the BLM’s assumption that the environmental consequences of these two alternatives would be the same is
unwarranted.

Without the land exchange, proceeding under the Mining Law, Asarco would have to submit one or more Mining Plan of Operations ( “MPOs ”) to the BLM before engaging in mining operations on its claims if those operations are greater
than a “casual use ” that would disturb more than five acres of
land. See 43 C.F.R. §§ 3809.11, 3809.21. “Casual use means activities ordinarily resulting in no or negligible disturbance of the public lands or resources, ” such as collection of mineral specimens using hand tools. Id. § 3809.5. It is clear from the FEIS that Asarco intends to engage in mining operations on the selected lands that would be greater than casual use, and that one or more MPOs would be required. 13286 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIEach MPO would have to provide a significant amount of information on Asarco’s mining plans, including “maps . . .showing the location of exploration activities, drill sites, mining activities, processing facilities, waste rock and tailing disposal areas, support facilities, structures, buildings, and access

routes ”; “[p]reliminary or conceptual designs, cross sections, and operating plans for mining areas, processing facilities, and waste rock and tailing disposal facilities ”; “[w]ater management plans ”; “[r]ock characterization and handling plans ”; “[q]uality assurance plans ”; “[s]pill contingency plans ”; “[p]lans for all access roads, water supply pipelines, and power or utility services ”; reclamation plans that address “[d]rill-hole plugging, ” “[r]egrading and reshaping, ” “[m]ine reclamation, ” “[r]iparian mitigation, ” “[w]ildlife habitat rehabilitation,” “[t]opsoil handling, ” “[i]solation and control of acid-forming, toxic, or deleterious materials, ” “[r]emoval or stabilization of buildings, structures and support facilities, ”
and “[p]ost-closure management ”; a detailed monitoring planto ensure compliance with environmental laws and regulations; a “[r]eclamation cost estimate ”; and “[o]perational and baseline environmental information, ” such as information on“geology, paleontological resources, cave resources, hydrology, soils, vegetation, wildlife, air quality, cultural resources, and socioeconomic conditions in and around the project area, ” as the BLM may request. See id. § 3809.401.

For every MPO Asarco submits, the BLM may, depending on the details of the MPO and the public land involved, need to gather additional information before deciding whether to approve it. For example, the BLM may require Asarco to “collect adequate baseline data ” against which to compare environmental data collected during or after mining takes place. Id. § 3809.411(a)(3)(i). The selected lands include dozens of archaeological sites, many of which, according to the FEIS, would be destroyed or severely disturbed if the land exchange proceeded. Consequently, the BLM may have to complete consultation required under the National Historical
Preservation Act. See id. § 3809.411(a)(3)(iii). The BLM may 13287 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIhave to complete consultation under the Endangered Species Act and/or the Magnuson-Stevens Fishery Conservation and Management Act. See id. The BLM may have to consult with
Native American tribes. See id. § 3809.411(a)(3)(iv). It may
have to consult with the State of Arizona to ensure that Asarco — which in the past has violated the federal Clean Water Act at the Ray Mine Complex — complies with State water quality requirements. See id. § 3809.411(a)(3)(ix). Further, an MPO must satisfy the performance standards described in 43 C.F.R. § 3809.420. These include standards regarding technology and practices, sequencing of operations, land use, mitigation, concurrent reclamation, availability of access routes, disposal of waste, protection of cultural and paleontological resources, fire prevention, and public safety.

See 43 C.F.R. § 3809.420.

In connection with any approval of an MPO submitted by Asarco, the BLM would also have to comply with NEPA. See
id. § 3809.411(a)(3)(ii). NEPA requires the BLM to preparean EIS before approving an MPO if that approval would constitute a “major Federal action[ ] significantly affecting the quality of the human environment. ” 42 U.S.C. § 4332(2)(C).
Based on the uses that Asarco and the BLM foresee for the selected lands, as detailed in the FEIS, it is certain that BLM approval of an MPO for the selected lands would constitute

a “major federal action. ” Each EIS would have to providedetailed information on the environmental impacts of Asarco’s planned mining as outlined in the MPO. Because theMPO submitted by Asarco would form the basis for any environmental review, an EIS prepared in connection with an MPO would provide a much more detailed analysis of the environmental consequences of the proposed mining and all
reasonable alternatives than the FEIS that is now before us. This is not an empty requirement. Although “NEPA itself does not mandate particular results, but simply prescribes the

necessary process ” of preparing an EIS, that process is “almost certain to affect the agency’s substantive decision. ” Robertson , 490 U.S. at 350. 13288 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIIn addition, an MPO cannot be approved unless it complies with FLPMA. Under FLPMA, the Secretary of Interior is required to “take any action necessary to prevent unnecessary or undue degradation of the [public] lands. ” 43 U.S.C. § 1732(b). BLM regulations define “unnecessary or undue degradation” to mean “conditions, activities, or practices ” that fail to comply with the “performance standards in § 3809.420,” fail to comply with “other Federal and state laws related to environmental protection and protection of cultural

resources, ” are “not ‘reasonably incident’ to prospecting, mining, or processing operations ” as defined in 43 C.F.R. § 3715.0-5, or “[f]ail to attain a stated level of protection or reclamation required by specific laws ” in special status areas. 43 C.F.R. § 3809.5.

[3] To summarize, if the selected lands remain in public hands, Asarco will be required to obtain the approval of the
BLM for one or more MPOs before it can conduct additional mining operations on those lands. It is highly likely that the process of obtaining BLM approval of one or more MPOswill substantially affect the manner in which mining operations will occur on the selected lands. By contrast, if the selected lands are conveyed to Asarco in fee simple, Asarco will be able to conduct its mining operations without being constrained in any way by the MPO process.

In its 1999 letter to the BLM, the EPA objected strenuously
to the draft EIS. The EPA noted that “it appears that Asarco has fairly specific plans for the selected parcels, ” and the EPA“continue[d] to contend that a substantial amount of information should be added to the EIS for the BLM to meet its public disclosure obligation. ” In her 2004 separate concurrence in the IBLA’s decision, Administrative Judge Hammer noted
that she was “perturbed by BLM’s assertion that foreseeable consequences of this exchange are not possible to predict or are speculative. ” She wrote that the information available to
the BLM “made foreseeable impacts more easily presentable in a manner not easily found in this EIS and less speculative 13289 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIthan BLM suggests. ” The FEIS itself contains detailed information about the mining activities that Asarco intends to conduct on the selected lands, as well as the acreage to be
devoted to such activities.

It is thus plain from the record that both Asarco and the BLM have a fairly detailed knowledge of what Asarco intends to do if the land exchange is approved. This knowledge wouldpermit the BLM to prepare a FEIS analyzing the likely contents of the one or more MPOs that Asarco would be required to submit in order to carry out its intentions on the selected lands if they were to remain in public hands, as well as the likely response by the BLM to such MPOs.

[4] It is black letter law that NEPA requires a comparative analysis of the environmental consequences of the alternatives before the agency. In the case before us, that analysis would compare the environmental consequences of the no-action alternative, in which Asarco would own mining claims on government-owned land, and the land exchange alternative, in which Asarco would own the land in fee simple. Under the first alternative, Asarco would have to prepare MPOs inaccordance with the Mining Law. Under the second alternative, Asarco would not be restricted in any way by the MiningLaw of 1872. In these circumstances, NEPA requires a meaningful analysis of the different environmental consequences that would result from public ownership (with an MPOrequirement) and private ownership (without an MPO requirement). Without such an analysis, the BLM has not conducted
the “hard look ” that NEPA requires. Rather, the BLM has averted its eyes from what is in plain view before it.

[5] To summarize, NEPA requires a meaningful comparison of the alternative courses of action available to the BLM.To satisfy NEPA, the BLM must provide a meaningful analysis of the likely environmental consequences of the proposedexchange by comparing the likely environmental consequences of mining on the selected lands under a regime of 13290 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIapproved MPOs with the likely environmental consequences of mining on the lands without the constraints imposed by the MPO process. The BLM has not done this. Indeed, it has not even attempted to do this. Rather, in describing the no action alternative in the FEIS, and in assuming that mining on the selected lands will take place in the same manner whether or not the exchange takes place, the BLM has improperly assumed, without analysis, that the MPO process would have no effect whatsoever on the manner and intensity of mining on the selected lands. In so doing, it has impermissibly “assumed the existence of the very plan being proposed. ” Friends of Yosemite Valley v. Kempthorne , 520 F.3d 1024, 1026 (9th Cir. 2008).

[6] The BLM’s assumption that mining would take place in the same manner whether or not the exchange occurs is not supported by substantial evidence in the record. Indeed, it
flies in the face of the evidence in the record. We therefore conclude that the BLM violated NEPA by failing to take a
“hard look ” at the environmental consequences of the land exchange.

B. FLPMA

In FLPMA, Congress declared that it is the policy of the United States to manage the public lands “in a manner thatwill protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values. ” 43 U.S.C. § 1701(a)(8). Congress also declared it a national policy to manage the public lands “in a manner which recognizes the Nation’s need for domestic sources of minerals, food, timber, and fiber from the public
lands.” Id. § 1701(a)(12). The BLM and the Secretary of theInterior are responsible for administering FLPMA and satisfying this multiple use mandate.

[7] FLPMA forbids land exchanges unless the “public interest will be well served by making that exchange. ” Id

. 13291 C ENTER FORB IOLOGICAL D IVERSITY v. USDOI§ 1716(a). FLPMA directs the Secretary of the Interior, in considering the public interest, to “give full consideration to better Federal land management and the needs of State andlocal people, including needs for lands for the economy, community expansion, recreation areas, food, fiber, minerals, and
fish and wildlife. ” Id. The Secretary must also “find[ ] that the values and the objectives which Federal lands or interests to be conveyed may serve if retained in Federal ownership are
not more than the values of the non-Federal lands or interests and the public objectives they could serve if acquired. ” Id.

In approving the land exchange, the ROD emphasized what the BLM saw as the advantages of acquiring the offered land. Those advantages include: (1) facilitating better federal land management by acquiring private lands within special areas of designation that exhibit a “checker board ” land ownershippattern; (2) improving wildlife and Area of Critical Environmental Concern habitats by adding parcels to federal protection and management; (3) supporting resource objectives for improving riparian zones by acquiring parcels along the Big Sandy and Gila Rivers; (4) continuing to support mining activities by providing lands that will enable Asarco to planexpansions, comply with environmental permits, buffer operations from surrounding lands, and continue operating on parcels with approved mine plans of operations; and (5) improving management of mineral rights.

[8] The ROD listed no disadvantages of conveying the selected lands into Asarco’s private ownership. The ROD stated, “An additional rationale for approving the landexchange is that the BLM considers the continuation of mining as the foreseeable use of most of the selected federal lands whether the exchange occurs or not. ” In other words, the ROD, like the FEIS, assumed that mining would occur on the
selected lands in the same manner whether or not the exchange took place. For the reasons discussed above, this assumption is unreasonable. The manner in which Asarcoengages in mining on the selected lands may differ substan13292 C ENTER FORB IOLOGICAL D IVERSITY v. USDOItially depending on whether the land exchange occurs, and the environmental consequences will differ accordingly.

[9] Because the ROD unreasonably assumed that mining would occur in the same manner, its analysis of the public interest under FLPMA is fatally flawed. Without an accurate picture of the environmental consequences of the land exchange, the BLM cannot determine if the “public interest will be well served by making the exchange, ” and the Secretary cannot determine if the “values and the objectives ” which

the selected lands “may serve if retained in Federal ownership

are not more than the values ” of the offered lands. We therefore hold that the conclusion in the ROD that the proposed land exchange is in the “public interest ” within the meaning of FLPMA was arbitrary and capricious.

C. Resource Management Plans

In addition to approving the land exchange, the ROD approved changes to two Resource Management Plans (“RMPs”). First, it amended the Phoenix RMP by changing the designation of 9,906 acres of selected lands in the White Canyon Resource Conservation Area from “retention ” to “disposal.” Second, it amended the Safford District RMP by changing the designation of 433 acres of selected lands in the Long-Term Management Area from “retention ” to “disposal. ”These changes were necessary in order to allow the conveyance of most of the selected lands into private hands.

Amending a resource management plan ordinarily constitutes “major federal action ” requiring NEPA analysis. See Klamath Siskiyou Wildlands Ctr. v. Boody , 468 F.3d 549, 560-62 (9th Cir. 2006). The BLM accordingly treated the plan amendments as major federal actions and analyzed them in the FEIS. As part of the no action alternative, the FEIS assumed that neither the land exchange nor the proposed amendments to the RMPs would take place. 13293

C ENTER FORB IOLOGICAL D IVERSITY v. USDOI[10] For the same reasons that the analysis in the FEIS of the land exchange is inadequate under NEPA, so too is the analysis of the proposed RMP amendments. By assuming that mining would occur in the same manner on the selected lands regardless of whether the exchange occurred, the BLM
assumed either that the RMPs would be amended even if the exchange did not occur, or that even if the RMPs were not amended the existing RMPs would not affect Asarco’s mining plans. There is nothing in the record supporting the first assumption that the RMPs would be amended absent the exchange, especially given that the BLM acknowledges that the amendments were prerequisites to the land exchange. And the second assumption — that the unamended RMPs wouldhave no effect on mining — suffers from the same flaws discussed above. Just as the BLM must consider the constraints imposed by the MPO requirement for the no action alternative to the land exchange, so too must it consider the constraints the RMPs would impose if the amendments did not occur. We note that 94% of the selected lands are currently subject to

RMPs.

The Appellants did not directly challenge the RMP amendments in their appeal to us. However, we note the incongruityof holding that the analysis in the FEIS of the no action alternative violates NEPA with respect to the land exchange butnot with respect to the RMP amendments if the same erroneous assumption infects them both. We leave it to the district court to address this issue, as appropriate, on remand.

D. Mining Law of 1872

We do not reach the question whether the Mining Law of1872 would be violated if the land exchange were to be effectuated on the current record. That is, we do not reach thequestion whether it would violate the Mining Law to effectuate a substantial land exchange that would permit a mining company entirely to avoid the restrictions that would result from the MPOs that would be required if the land were to 13294 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIremain in the public domain. That question may or may notbe presented at a later time, if and when the BLM has complied with NEPA and FLPMA.

Conclusion

We conclude that substantial evidence in the record does not support the BLM’s assumption that mining would occur in the same manner regardless of the land exchange. We therefore hold that in failing to provide a comparative analysis of the likely environmental consequences of the proposed land exchange, on the one hand, and the no action alternative, on the other, the BLM failed to take a “hard look ” at the environmental consequences of the exchange in violation of
NEPA. We hold further that the conclusion in the ROD that the proposed land exchange is in the “public interest ” within the meaning of FLPMA was arbitrary and capricious because it was based on the BLM’s erroneous assumption. We do not reach the question whether the Mining Law of 1872 would be violated if the land exchange were to be effectuated on the
current record.

We therefore REVERSE the decision of the district court approving the action of the BLM.

TALLMAN, Circuit Judge, dissenting:

It has been said that the life of a canary in a coal mine can be described in three words: short but meaningful. So too apparently was the life of our decision in Lands Council v.

McNair , 537 F.3d 981 (9th Cir. 2008) (en banc).

With respect to my distinguished colleagues, the holding today undermines a congressionally authorized land exchange that, until now, has been approved at every stage of its 15- year history. The court’s opinion, in my view, is based on a 13295 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIfundamentally flawed reading of selective portions of a comprehensive record. It then culminates in a novel and unworkable legal standard that not only effectively precludes beneficial land exchanges between the federal government and private or public landowners but also impairs the BLM’s ability to effectively manage the public lands in a manner that furthers the public interest. Finally, it gives no credence to theability of the State of Arizona to manage lands under its regulatory jurisdiction nor consideration to the substantial federal
and state environmental and land use laws that will be nonetheless applicable whether or not the land exchange is approved.

In Lands Council , our en banc court confirmed the properlevel of deference owed to agency determinations. Nevertheless, my colleagues disregard that precedent and once againendeavor to impermissibly expand the scope of judicial oversight and scrutiny of agency action. Today’s opinion is irreconcilable with Lands Council , which sought to rein in this type of judicial second-guessing in highly specialized areas.

I

This environmental challenge relates to the approval of a land exchange involving federal and non-federal parcels in southern Arizona (the “Land Exchange ”) between the Bureau of Land Management ( “BLM ”), an agency within the Department of the Interior, and Asarco LLC ( “Asarco ”), a private mining company that already possesses significant mining rights on the public land at issue. The Mining Law of 1872 (the “Mining Law ”), 30 U.S.C. § 21 et seq ., establishes Asarco’s existing mining rights to the selected lands. **1** The Federal

**1** As in the majority opinion, “selected lands ” refers to the 10,976 acres of public land at issue, and “offered lands ” refers to the 7,300 acres of private land currently owned by Asarco subject to the Land Exchange. The offered lands are comprised of 18 parcels located in Pinal and MohaveCounties and include: (1) the Gila River Parcel at Cochran, (2) the Sacramento Valley Parcel, (3) the Knisely Ranch parcel group, (4) the Tomlin parcel group, and (5) the McCracken Mountains Parcel group. 13296 C ENTER FORB IOLOGICAL D IVERSITY v. USDOILand Policy and Management Act ( “FLPMA ”), 43 U.S.C. § 1701 et seq ., governs the management of federal lands and sets the policy authorizing the agency to enter into land exchanges with public or private landowners. The National Environmental Policy Act ( “NEPA ”), 42 U.S.C. § 4321 et

seq. , is a procedural mechanism for assessing the environmental impact, which is a consideration weighing into the BLM’s
determination under FLPMA.

By beginning its analysis and focusing almost exclusivelyon NEPA, then working backwards to only tangentially discuss FLPMA and the Mining Law, the court’s opinion inverts the legal analysis, reaches the wrong result, and, in doing so, creates bad law. With a single exception, the majority does not contest the thoroughness of the Environmental Impact Study ( “EIS ” or “FEIS ”) prepared in accordance with NEPA or the sound reasoning of the BLM’s Record of Decision (“ROD”) approving the Land Exchange. In my colleagues’ minds, however, that single exception forms the linchpin of the NEPA and FLPMA analyses and is alone sufficient toundermine a complicated agency action and to grant Appellants Center for Biological Diversity, Western Land Exchange Project, and Sierra Club (collectively, “CBD ”) the relief they
request.

The court’s opinion makes a series of fundamental missteps. First, the opinion adopts a misguided view of the record —one pressed by CBD’s briefing—by concluding that, for the purposes of considering the environmental impacts of the Land Exchange, the BLM blindly assumed that the type, scope, and intensity of Asarco’s mining and mining-related activities on the selected lands would be exactly the same whether or not the Land Exchange occurred. Maj. Op. at 13279-80. The majority then concludes—an apparent finding of fact for the first time on appeal—that “both Asarco and the BLM have a detailed knowledge of what Asarco intends to do if the land exchange is approved ” and are apparently withholding this information from the public. Id. at 13290. 13297

C ENTER FORB IOLOGICAL D IVERSITY v. USDOIBuilding upon the shaky foundation of these two highlyquestionable appellate findings, the majority, without identifying supporting authority, interprets NEPA beyond its proper bounds to erect a procedural hurdle henceforth applicable to the land exchange approval process: Whenever a landowner proposes an exchange for public land on which it alreadyholds mining rights, NEPA requires that the landowner effectively exercise those mining rights by engaging in the Mining Plan of Operations ( “MPO ”) **2** submission and approval process. Id. at 13290-91. That is, notwithstanding the standards set by Congress and our recent decision in Lands Council , my colleagues judicially legislate, ostensibly through NEPA, an additional procedural requirement that necessarily imposes considerable substantive burdens on the parties. Specifically, the court would have the parties develop and process detailed plans of operation as a precondition to effectuating a land exchange, even where, as is the case here, a mining company may not know precisely what it will ultimately do on the land

it receives.

Applying this novel, judicially created NEPA requirement to its interpretation of the record, the majority, with a few strokes of the pen, invalidates a Land Exchange that the BLM determined was in the public’s best interest following careful and comprehensive evaluation. My colleagues reject without comment the sound reasoning of the BLM Arizona State Director, the Interior Board of Land Appeals ( “IBLA ”), and the district court—all of whom considered and rejected the same legal challenges presented by CBD—and conclude that the agency failed to take a “hard look ” at the potential environmental consequences of the proposed action in violation of

**2** Before engaging in mining operations beyond casual use on public land, a claim holder must submit an MPO for consideration and approval by the BLM. 43 C.F.R. § 3809.11. An MPO sets forth detailed explanations of the scope and impact of mining activities that will exceed a certain

size. See Maj. Op. at 13286-87 (quoting 43 C.F.R. § 3809.401 extensively). 13298 C ENTER FORB IOLOGICAL D IVERSITY v. USDOINEPA. For the same reason, they also summarily reject as arbitrary and capricious the BLM’s “public interest ” determination pursuant to FLPMA—a decision based almost exclusively on other considerations.

For the reasons stated below, I strongly disagree with this outcome as well as my colleagues’ methodology in reaching that result. I would reject the arguments presented by CBD, and affirm the district court’s order of summary judgment in favor of Asarco and the BLM because the BLM reasonably concluded that the Land Exchange is in the best interests of the public.

II

FLPMA sets forth the principles governing the management of lands owned by the United States and administeredby the Secretary of the Interior through the BLM. The congressionally delegated authority is broad. Section 206 of FLPMA authorizes the BLM to exchange certain public lands for state, county, or private lands within the same state when
it determines that “the public interest will be well served by making that exchange. ” 43 U.S.C. § 1716(a). That is, “giv- [ing] full consideration to better Federal land management and the needs of State and local people, including needs for lands for the economy, community expansion, recreation areas, food, fiber, minerals, and fish and wildlife[,] ” the BLM
determines whether “the values and the objectives which Federal lands or interests to be conveyed may serve if retained inFederal ownership are not more than the values of the nonFederal lands or interest and the public objectives they could serve if acquired. ” Id. Environmental impact is certainly a factor, and unquestionably an important one, in the BLM’s “public interest ” determination under FLPMA. NEPA establishes the procedures by which agencies must consider the environmental impacts of agency action, but does not dictate
substantive results. See Robertson v. Methow Valley Citizens
Council , 490 U.S. 332, 350-51 (1989). 13299

C ENTER FORB IOLOGICAL D IVERSITY v. USDOIPublic land exchanges frequently benefit everyone involvedin the transfer—the federal government, the exchanging public or private property owner, and, most importantly, the public at large. Exchanges are typically employed to eliminate patchwork ownership of isolated parcels. Once consolidated,such lands can be managed efficiently, effectively, and economically for all sorts of beneficial uses—e.g., creation ofparklands, wilderness areas, hiking and biking trails, environmental remediation and protection, or improved stewardship of multiple-use lands and forests. It is undisputed that the Land Exchange at issue would serve these very purposes, among others. **3**

What is unusual about these particular types of land swapsis the overlay of congressionally authorized mineral exploration and extraction rights in federal lands to which the miner —in this case, Asarco—has no title. Asarco’s preexisting mining rights under the Mining Law therefore lie at the core of this agency action.

The Mining Law of 1872 states that “all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration, ” 30 U.S.C. § 22, and, stated generally, authorizes and governs prospecting and mining for economic minerals on federal public lands. It was designed to encourage individuals to “prospect, explore and develop the

**3** Despite the majority opinion’s selective and somewhat misleading presentation of the facts, the record reveals—and CBD does not contest—that from an environmental standpoint, the selected lands are far inferior to the offered lands which would come under federal ownership through the Land Exchange. As stated in the record, “The BLM prepared a careful andreasonable analysis of the natural resources lost and gained in the proposed land exchange. . . . In each instance, the natural resource inventory detailed in the FEIS, the offered lands presented evidence of superior resource values compared to the selected land parcels. ” Moreover, the less environmentally valuable selected lands, which are comprised of scattered parcels that largely border the active Ray Mine Complex, are apparentlyrich in copper and silver—minerals in high demand by our technologydriven economy. 13300 C ENTER FORB IOLOGICAL D IVERSITY v. USDOImineral resources of the public domain through an assurance of ultimate private ownership of the minerals and the lands so developed. ” United States v. Curtis-Nev. Mines, Inc. , 611 F.2d 1277, 1281 (9th Cir. 1980); accord United States v. Shumway , 199 F.3d 1093, 1098-99 (9th Cir. 1999) ( “The miners’ custom, that the finder of valuable minerals on government land is entitled to exclusive possession of the land for purposes of mining and to all the minerals he extracts, has been a powerful engine driving exploration and extraction of

valuable minerals . . . . ”). **4**

Under the Mining Law, all citizens have the right to enter public lands open to mineral entry and locate mining claims

or mill site claims. Indep. Min. Co. v. Babbitt , 105 F.3d 502, 506 (9th Cir. 1997). Once a claim is staked, the holder “hasthe exclusive right to possession and enjoyment of all the surface included within the lines of the locations, but the United States retains title to the land. This possessory interest entitles the claimant to ‘the right to extract all minerals from the claim without paying royalties to the United States.’ ” Id. (quoting

Swanson v. Babbitt , 3 F.3d 1348, 1350 (9th Cir. 1993)) (internal citation omitted). “If a discovery of a ‘valuable mineral deposit’ is made, the claim can be held indefinitely so long asthe annual assessment work is performed, the necessary filings are made, fees are paid, and a valuable mineral deposit

continues to exist. ” Id. It is well-established that “[t]he owner of a mining claim owns property, and is not a mere social guest of the Department of the Interior to be shooed out the door when the Department chooses. ” Shumway , 199 F.3d at 1103; accord United States v. Locke , 471 U.S. 84, 86 (1985) ( “[A]n unpatented mining claim remains a fully recognized possessory interest. ”). In other words, a mining claim, without more, involves significant mining rights.

**4** The Mining Law codified the informal system of acquiring mining claims on public land by prospectors in California and Nevada from the late 1840s through the 1860s. See Shumway , 199 F.3d at 1097-99. 13301 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIThe holder of a mining claim may apply for a patent to the land under 30 U.S.C. § 29, which, if issued, conveys fee title to the public land in favor of the claim holder. See Curtis-Nev.

Mines , 611 F.2d at 1281. This process is called “patenting ” or proving the claim and requires a determination whether the claim is valid—i.e., whether “there was a legitimate discovery of a valuable mineral deposit on the land which a prudent man would be justified in developing. ” Id . Patenting, however, is not required to develop a claim or to engage in mining or related activities on public land. A claim holder can conduct“prospecting, mining or processing operations and uses reasonably incident thereto ” without ever obtaining a patent. 30 U.S.C. § 612(a); Curtis-Nev. Mines , 611 F.2d at 1281-82 (“[C]laimants could continue mining activities on the claims, without ever obtaining a patent. As a practical matter, mining claimants could remain in exclusive possession of the claim without ever proving a valid discovery or actually conducting mining operations. ”).

Mining activities are always subject to governmental oversight and regulation and must comply with a panoply of federal, state, and local laws, including the Clean Air Act, the Clean Water Act, and the Solid Waste Disposal Act, among a myriad of other regulatory requirements. See 43 C.F.R. § 3809.420. Before engaging in mining operations beyondcasual use on public land, a claim holder must submit a proposed plan of operation, an MPO, for consideration and approval by the BLM, see 43 C.F.R. § 3809.11—a point upon which the majority improperly fixates. Unless “unnecessary or undue degradation of public lands ” is found to result from the analysis, the BLM will approve a properly filed MPO. 43 C.F.R. § 3809.411(d).

With the exception of a single 480-acre parcel, the totalityof the 10,976 acres that comprise the selected lands is completely encumbered by at least one of 751 mining or mill siteclaims. Asarco holds 747 of these claims. Accordingly, Asarco’s ability to develop its claims on the selected lands and to 13302 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIengage in mining activities and those incident to mining is firmly established under the Mining Law, predate the Land Exchange proposal, and will exist whether or not the Land Exchange goes forward. With this practicality in mind, we review the BLM’s decision to approve the Land Exchange.

III

The Administrative Procedure Act provides the authority for our review, and we may only set aside agency actions that

are “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law. ” 5 U.S.C. § 706(2)(A); see N. Alaska Envtl. Ctr. v. Kempthorne , 457 F.3d 969, 975 (9th Cir. 2006). We have held that an agency’s decision may only be called arbitrary and capricious if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consideran important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.

Sw. Ctr. for Biological Diversity v. U.S. Forest Serv. , 100 F.3d 1443, 1448 (9th Cir. 1996) (quoting Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)). “This inquiry must be ‘searching and careful,’ but ‘the ultimate standard of review is a narrow one,’ ” id. at 1448, and “we do not substitute our judgment for that of the

agency. ” Lands Council , 537 F.3d at 987 (brackets omitted).

Having carefully reviewed and evaluated the record, I staunchly disagree with the majority’s conclusion that, after 15 years of consideration and on a dense record that includes thousands of pages of study and thorough analysis, the BLM shirked its duty to take the requisite “hard look ” under NEPA 13303 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIor otherwise acted arbitrarily or capriciously. The law simply does not support the majority’s holding.

A

In considering the proposal, the BLM prepared a draft EIS pursuant to NEPA and, after providing for public review and comment, issued a final EIS in 1999. The BLM had initially considered a variety of alternatives, including the LandExchange as proposed, various partial exchanges, a No Mining Alternative, and a No Action Alternative (i.e., where the Land Exchange was not approved and the selected and offered lands remained under present ownership). For various reasons, the original list of eleven alternatives was narrowed to four that warranted more in depth study: the Proposed Action, the No Action Alternative, the Buckeye Alternative, and the Copper Butte Alternative.

Among the initially proposed alternatives eliminated from more detailed consideration was the No Mining Alternative. The BLM reasonably explained:

[I]n developing alternatives, BLM concluded that foreseeable mining-related uses of the selected lands are actions common to all alternatives; that is, mining/mine-support uses would likely occur whether any one of the land exchange alternatives
were selected or the No Action alternative was selected. This is because a land exchange is not required for mining-related activities to take place on the selected lands. Asarco currently holds the vast majority of the mining claims on the public lands selected for the exchange, and through these mining claims, Asarco has the right to pursue development on the selected lands for mining and mining-related

uses.

As the EIS further explained, “[t]he foreseeable uses of the selected lands are mining-related uses and are expected to 13304 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIoccur under all alternatives. Mining could occur on private . . . lands under a land exchange, on public lands subject to BLM’s 43 CFR 3809 regulations, or through patenting under the Mining Law of 1872. ”

The BLM’s assumption that the foreseeable use of theselected lands will involve mining-related activities irrespective of the Land Exchange is well supported by the record and common sense. Not even CBD disputes this conclusion. As noted by the BLM, Asarco already operates on approximately 272 acres of the selected lands pursuant to its mining claims, and four other copper mines in the area were considering expansion of their mining operations into the selected lands. Indeed, the close proximity of the selected lands to the Ray Mine Complex—the third most productive copper mine in the United States, which has been in operation for 85 years— coupled with Asarco’s existing rights under the Mining Law and its stated intention to engage in mining activities on theselected lands whether or not the Land Exchange is effectuated makes this the only reasonable conclusion.

To be fair, my colleagues do not dispute this general conclusion regarding the foreseeability of mining activities or propose a competing, alternative foreseeable use of the selected lands. Nor could they. Rather, their complaint lies in a misreading of the BLM’s careful analysis, which infects the majority’s view of the EIS and the ROD. My colleagues adopta more drastic position, repeatedly faulting the BLM for simply presuming “that the manner and intensity of mining would
be ‘the same’ whether or not there was a land exchange. ” Maj. Op. at 13280 (emphasis added); see also id. at 13274, 13280, 13281, 13283, 13285, 13290, 13292, 13294, 13295. This logical leap distorts the BLM’s reasoned analysis. As Asarco correctly asserted at oral argument, the BLM did no such thing.

In favor of its premise, the majority solely focuses on an isolated phrase from the record, taken entirely out of context. 13305 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIIn the section discussing the “Alternatives Considered, ” the
EIS states: “As explained above, foreseeable uses of the
selected lands are assumed to be the same for all alternatives. ” Read in the correct context of developing and evaluating alternatives, the statement simply reiterates the unremarkable notion that mining activities would likely occur on the selected lands under all possible alternatives (and that the No Mining Alternative was neither feasible nor realistic)—a pointthat no one disputes. The majority, however, quotes this statement without the explanatory phrase, “As explained above, ” and uses it to portray the BLM’s environmental analysis as unreasoned and inadequate. See id. at 13279-80.

The manner and intensity of mining and mining-relatedactivity pose an entirely distinct question from whether mining will likely occur on the selected lands. The EIS does not reveal an unwarranted presumption on the part of the BLM that the actual operations would be identical whether or not the Land Exchange is approved. Rather, given Asarco’s representations, the BLM conducted its environmental assessment —i.e., a comparative analysis—under the assumption thatmining-related activity on land remaining under federal ownership would be conducted in a manner consistent with Asarco’s existing mining rights under the Mining Law and a host of otherwise applicable federal and state regulations. See
Lands Council , 537 F.3d at 1003 ( “[W]e will not find a NEPA violation based on the [agency]’s use of an assumption that

we approve. ”). Because Asarco already holds mining claimsto nearly all of the selected lands, the BLM reached the logical conclusion that, to the extent foreseeable, the environmental impacts would be in many ways similar under the various
alternatives. Based on the facts of this case, there is nothing improper or even surprising about this reasoning. Indeed, a contrary conclusion would be absurd.

The majority, however, seems focused on the hypothetical, noting that “the manner in which Asarco engages in mining on the selected lands may differ substantially depending on 13306 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIwhether the land exchange occurs, and the environmental consequences will differ accordingly. ” Maj. Op. at 13292-93. So too might mining activities differ if the worldwide price ofcopper plummeted, or if particular parcels did not contain sufficient minerals to warrant at all. In any event, this rumination is unaccompanied by any factual basis from the record. Nordo my colleagues disclose their belief regarding how the inevitable mining activities might “differ substantially. ” It is ofcourse axiomatic that NEPA does not encompass all conceivable scenarios. We were reversed by the Supreme Court in Weinberger v. Catholic Action of Hawaii/Peace Education Project , 454 U.S. 139 (1981), **5** where we read NEPA to require the Navy to prepare an EIS based on hypothetical assumptions regarding the operations of a facility capable of storing nuclear weapons. Id. at 146 ( “[A]n EIS need not be prepared simply because a project is contemplated , but only when the project is proposed. ”). My colleagues repeat this

error.

But even assuming the selected lands remained publicly owned, given the facts of this case (namely, Asarco’s mining rights on the selected lands), there is nothing unreasonable orillogical about a conclusion that, while the timing might differ, the ultimate mining-related activities would be substantially similar and in turn result in comparable environmental impacts. On the contrary, in light of the variables in play, thatconclusion is quite sound. My colleagues’ position is premised on an inflated portrayal of the MPO process. Given the substantial rights and interests provided by the Mining Law and its goal of encouraging the location and extraction ofvaluable minerals, the BLM’s review of a claim holder’s proposed MPO is limited. The BLM may disapprove or withhold approval of a properly submitted MPO concerning an area open to mining only if a proposed operation “would result in unnecessary or undue degradation of public lands. ” 43 C.F.R.

**5** The Court reversed our panel opinion in Catholic Action of Hawaii/Peace Education Project v. Brown , 643 F.2d 569 (9th Cir. 1980). 13307 C ENTER FORB IOLOGICAL D IVERSITY v. USDOI§ 3809.411(d)(3); see 43 U.S.C. § 1732(b). “A reasonable interpretation of the word ‘unnecessary’ is that which is not necessary for mining. ‘Undue’ is that which is excessive, improper, immoderate or unwarranted. ” Utah v. Andrus , 486 F. Supp. 995, 1005 & n.13 (D. Utah 1979) (noting that “[t]he word ‘impair’ would prevent many activities that would notbe prevented by the language of ‘unnecessary or undue degradation.’ ”).

The BLM is, for example, “under no legal obligation to determine mining claim or mill site validity before approvinga proposed plan of operations to explore for or develop minerals on lands open to the Mining Law’s operation. ” Legal Requirements for Determining Mining Claim Validity Before Approving a Mining Plan of Operations, Op. DOI Solicitor General, M-37012 (Nov. 14, 2005); see W. Shoshone Def. Project , 160 IBLA 32, 56 (2003) ( “BLM generally does not determine the validity of the affected mining claims before approving a plan of operations. ”). **6** If the BLM finds no unnecessary and undue degradation and the claim holder has obtained all required permits, the BLM must authorize the planned mining operations.

Indeed, it is the majority—not the BLM—that has engagedin improper conjecture and has adopted unfounded presumptions. Substantial governmental regulations such as the Clean Air Act, the Clean Water Act, and various other federal and local safeguards remain nonetheless applicable to operations on private land. Today’s opinion, based on a distaste for theparticular industrial goals at issue, requires that courts presume that in the absence of the MPO process mining companies will conduct their activities unsupervised by any

**6** As the majority asserts, the MPO review process does trigger procedures established by the BLM and will typically involve an environmental analysis subject to NEPA. See 43 C.F.R. § 3809.411(c). Still, the limited “unnecessary and undue degradation ” standard governs the MPO approval process, and NEPA operates within these restraints. 13308 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIenvironmental regulator in a manner that unnecessarily and unduly degrades the environment. And, in doing so, miningcompanies will somehow evade the substantial state and federal governmental regulations that remain applicable to mining operations on private land in Arizona.

But it gets much worse. Here, because Asarco has neither engineered nor submitted an MPO for the selected lands, a foreseeable use plan was developed as the basis for analyzing the land exchange proposal and the foreseeable environmental

consequences. As the BLM Arizona State Director noted in the Protest Decision, rejecting CBD’s arguments:

BLM considered future mining as allowed by the Mining Law, subject to full compliance with 43 C.F.R. Part 3809, as the foreseeable use under all exchange alternatives and the no-action alternative. . . . Based upon a foreseeable use plan (FEIS 2.2;Tables 2-5, 2-6; Figures 2-7, 2-8, 2-9), BLM analyzed the direct, indirect and cumulative impacts of future mining within the limits of the information available. . . . BLM also identified how miningdevelopment by Asarco requires other major environmental permits under the jurisdiction of other federal and state agencies (FEIS, Section 1.6.4 and Table 1-5), whether or not the lands remain federal or in private ownership.

While not an MPO approved in accordance with the “unnecessary or undue degradation ” standard, the foreseeable use plan developed for the Land Exchange proposal reasonably approximated Asarco’s planned mining-related activities andconsidered the ongoing regulation of anticipated mining activities whether or not the exchange was approved. Cf. Am. Rivers v. FERC , 201 F.3d 1186, 1195 (9th Cir. 1999) ( “[O]nce we are satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, our review
is at an end. ” (internal quotations and brackets omitted)). The 13309 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIBLM plainly stated: “Mining plans of operations are not required for a land exchange proposal. ”

This, however, is not enough for the majority. My colleagues fault the BLM for failing to comply with obligations of their own creation. After all, they do not, nor could they, challenge the BLM’s environmental impact analysis in light of the information at hand. Recognizing that detailed findings

cannot be drawn from nonexistent information about future events not yet planned, my colleagues impose their view ofwhat steps the BLM should take under NEPA whenever preexisting mining rights are involved, even where actual mining is speculative or the contours of planned mining activities are undefined. At bottom, the opinion proclaims:

To satisfy NEPA, the BLM must provide a meaningful analysis of the likely environmental consequences . . . of mining on the selected lands under a regime of approved MPOs . . . .

Maj. Op. at 13290-91. In other words, my colleagues hold that in order to fully comprehend “the different environmental consequences” from the Land Exchange, NEPA requires ananalysis that mimics the MPO submission and approval process. Id. at 13290-91. Does it? The majority provides no authority for such a landmark holding, leaving the legal basis for this novel NEPA requirement steeped in mystery. The majority then unsurprisingly concludes, “The BLM has not done this. Indeed, it has not even attempted to do this. ” Id. at 13291. The reason why the parties might not have engaged in the majority’s novel quasi-MPO process as part of the Land Exchange is readily apparent. **7**

**7** The majority is wrong on multiple fronts. As discussed above, theBLM quite clearly did conduct a comparative analysis of the environmental impacts under the various alternatives, including the No Action Alternative. The majority is simply dissatisfied with the results and thereforeseeks to impose the formal MPO requirement into the land exchange con13310 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIThis attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. As we have held time and again, “[w]e are not free to ‘impose upon the agency [our] own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.’ ” Churchill County v. Norton , 276 F.3d 1060, 1072 (9th Cir. 2001) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc. , 435 U.S. 519, 549 (1978)). “Nor may we impose ‘procedural requirements not explicitly enumerated in the pertinent statutes.’ ” Lands Council , 537 F.3d at 993 (brackets omitted). But this is precisely what the majority boldly does here. According to our opinion today, the BLM was obliged to demand that Asarco fully explore the selected lands, develop a detailed mining plan, and submit a proposed plan of mining operations for approval—i.e., one mimickingan MPO. The BLM was then required, under NEPA, to consider that quasi-MPO as if it was indeed a filed MPO under the Mining Law. Stated in real terms, the approval process ofa proposed land exchange under FLPMA henceforth incorporates, by way of NEPA, the Mining Law’s governance of mining activities on public lands.

I find no legal basis for our court’s quasi-MPO analysis requirement— “a creature of judicial cloth, not legislative

sideration process with the false presumption that it would lead to substantially different findings.

What is more, the BLM did consider an alternative similar to the novel quasi-MPO requirement announced today. Among the eleven alternatives initially considered in the EIS, the BLM evaluated the Mining Plan of Operation Alternative. “Under this alternative, Asarco would submit an MPO, as described in federal regulations governing mining operations on federal lands [pursuant to 43 C.F.R. § 3809]. ” The BLM, however, rejected this alternative from further consideration because Asarco had not yet prepared a detailed proposed plan of operations and because, in theBLM’s view, an MPO was neither necessary to reach an informed conclusion nor required by the law it administers. Once again, this part of therecord draws no attention from my colleagues, and the agency’s interpretation of its regulations is given no Chevron deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984). 13311 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIcloth, . . . not mandated by any of the statutory or regulatory provisions upon which [the majority] relied. ” Weinberger

, 454 U.S. at 141. “ Lands Council teaches that our proper role is simply to ensure that the agency, in its expertise, made no clear error of judgment rendering its action arbitrary and capricious.” Nw. Coalition for Alternatives of Pesticides v. U.S. Envtl. Prot. Agency , 544 F.3d 1043, 1060 (9th Cir. 2008) (Ikuta, J., dissenting). Just as “we defer to the Forest Service as to what evidence is, or is not, necessary to support wildlife viability analyses, ” Lands Council , 537 F.3d at 992, we must defer to the BLM as to what evidence is, or is not, necessary to support a foreseeable environmental impact assessment of anticipated mining activities in order to make an informed “public interest ” determination. See also Coeur Alaska, Inc. v.
Se. Alaska Conservation Council , 129 S. Ct. 2458, 2473 (2009) (noting deference given to agencies’ interpretation of own regulatory scheme). My colleagues clearly disagree.
Who needs Chevron deference? Why adhere to Lands Council ? Judges will now administer the duties Congress has entrusted to the administrative agency.

In sum, the majority’s creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agencyaction and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin , 430 F.3d 1057 (9th Cir. 2005), which we expressly overruled in Lands Council

. See 537 F.3d
at 990. The BLM “is at liberty, of course, to [conduct a quasiMPO analysis] if it deems it appropriate or necessary, but it is not required to do so. ” Id. at 991-92. It is certainly not forus as Article III judges to feign superior expertise in such specialized areas and to micro-manage agencies in executing their congressionally delegated administrative functions.

NEPA is a procedural mechanism. Id. at 992 (noting that a substantive requirement “cannot be derived from the procedural parameters of NEPA ” ( quoting Ecology Ctr. , 430 F.3d at 1073 (McKeown, J., dissenting))). It was satisfied here. The 13312 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIBLM did what was required of it under the circumstances of this case—i.e., take a “hard look ” at the reasonably foreseeable environmental consequences of the exchange and the various alternatives. We should have applied an “approach [that] respects our law that requires us to defer to an agency’s determination in an area involving a ‘high level of technical expertise,’ ” id. at 993, and rejected CBD’s challenge under

NEPA.

B

The majority opinion’s curt analysis regarding FLPMA is perhaps even more problematic and falters for the reasons stated above. Rather than engaging the material legal question whether or not the Land Exchange was in the public interest,

see 43 U.S.C. § 1716(a), my colleagues repeat their flawed NEPA analysis, stating: “The manner in which Asarcoengages in mining on the selected lands may differ substantially depending on whether the land exchange occurs, and the environmental consequences will differ accordingly. ” Maj. Op. at 13292-93. Despite the BLM’s well-articulated bases for its approval of the Land Exchange, the majority concludes

that this alone renders the reasoned “public interest ” determination arbitrary and capricious.

In the ROD, the BLM gave five main reasons why approvalof the Land Exchange was in the public interest and thus satisfied § 206 of FLPMA:

1) Facilitating better land management by acquiring private lands within special areas of designation(the McCracken Desert Area of Critical Environmental Concern (ACEC) which exhibit a “checkerboard” land ownership pattern and removing inholdings from the Mt. Tipton Wilderness). This will remove resource and use conflicts, facilitate a moreefficient management, and enable better implementa13313 C ENTER FORB IOLOGICAL D IVERSITY v. USDOItion of resource management plan (RMP) decisions for the Kingman RMP.

2) Improving wildlife and ACEC habitats by adding the Gila River at Cochran parcel and McCracken ACEC parcels to federal protection andmanagement. The Gila River parcel (320 acres) supports threatened and endangered species by providing critical habitat for the cactus ferruginous pygmyowl and occupied habitat for the southwestern willow flycatcher. The McCracken ACEC provides 6,500 acres of Category I desert tortoise habitat. The Sacramento Valley and Tomlin parcels also support Category I and II desert tortoise habitat.

3) Supporting resource objectives for improving riparian zones by acquiring parcels along the Big Sandy and Gila Rivers. Tomlin Parcel #4 and the Gila River at Cochran Parcel contain riparian values and enable more efficient and effective management of riparian zones along those rivers.

4) Continuing to support mining activities asapproved in the Phoenix RMP. The exchange provides lands which will enable Asarco to plan expansions, comply with environmental permits, buffer operations from surrounding lands, and continue operating on parcels with approved mine plans of operations (MPOs) authorized under 43 CFR 3809.

5) Improving management of mineral rights by removing split estate lands from BLM administration (2,808 acres) of federal estate below state or private surface and from parcels with existing operations under approved MPOs. This does not alter federalpermits from other agencies administering significant environmental programs such as the Clean
Water Act and Clean Air Act. 13314 C ENTER FORB IOLOGICAL D IVERSITY v. USDOI“As an additional rationale for approving the land exchange, ”
the ROD also noted that “the continuation of mining [was] the
foreseeable use of most of the selected lands whether the exchange occurs or not. ” In reaching this conclusion, the BLM referred to the Mining Law and Asarco’s rights arisingfrom its 747 mining claims, Asarco’s pending patent application for portions of the selected lands (which, if approved, would convey fee title to Asarco), mineral potential reports indicating the presence of ore bodies that may have economic potential for future mining, and the current use of parcels in the neighboring Ray Mine Complex, which was 100% mining-related. **8**

Moreover, the ROD recognized that, under the No ActionAlternative, the BLM must anticipate substantial future management actions, including processing multiple MPOs and patent applications, while the offered lands would remain in Asarco’s ownership and most likely be divided into smaller parcels and sold for profit. In other words, significant portionsof the selected lands would inevitably be burdened by miningrelated activities, either pursuant to Asarco’s mining claims or after fee title was conveyed to Asarco through the patentingprocess. Simultaneously, the offered lands, which would provide significant public benefit under federal ownership (e.g., as described in paragraphs (1) through (3), quoted above),would remain in private hands and likely be subject to subdivision and private development, including possible mining

**8** Despite the BLM’s meaningful discussion on the topic, the majority curiously proclaims that the ROD did not address the objection to the BLM’s assumption that the foreseeable use of the selected lands reflects mining whether or not the exchange occurs. See Maj. Op. at 13281-82 (accusing the BLM of “ not respond[ing] to the second sentence ” of the objection of the EPA, the Bureau of Indian Affairs, and the Sierra Club). Furthermore, in direct response to the objection, the ROD not only cited

the “FEIS General Response Section 7.4.5 and 7.4.6, ” as the opinion acknowledges, but also referenced in an immediately following sentence

the “FEIS sections that deal with the foreseeable uses in the absence of mining plans of operations, ” which are discussed above. 13315

C ENTER FORB IOLOGICAL D IVERSITY v. USDOIactivities. How could the public interest possibly be served by this outcome? This reality weighed heavily in the BLM’s

determination.

The majority’s analysis literally ignores the reasons provided in the ROD and the sound logic of the BLM in determining what course best serves the public interest. Indeed, it further ignores the Protest Decision of the BLM Arizona State Director, upholding the BLM’s public interest determination, and the IBLA’s expertise and experience in denying CBD’s administrative appeal. See Ctr. for Biological Diversity , 162 IBLA 268 (2004). **9** Finally, it ignores the district court’s summary judgment in favor of Asarco and the BLM, rejecting as

a matter of law CBD’s continued contest of the Land Exchange. Instead, the opinion focuses solely on the “additional rationale ” that the BLM mentioned in further support of its determination. Based entirely on their suspicion that the mining activities “may ” differ depending on whether the LandExchange is consummated, my colleagues hold that the exten**9** The majority does selectively quote language from the concurring opinion, which it attempts to use to support its wayward NEPA analysis.

See Maj. Op. at 13282-83, 13289-90 (quoting Ctr. for Biological Diversity , 162 IBLA at 291 (Hemmer, Admin. J., concurring)). It, however, omits the paragraph immediately following the quoted text, which fully conveys Administrative Judge Hemmer’s opinion in concurrence:

Nonetheless, I agree with the lead opinion that appellants’ arguments do not sufficiently take into account the record and the mining uses of the land evident therein, nor the above-described facts, in suggesting that mining would be entirely different if the selected lands were not transferred outside of Federal ownership and that BLM thereby did not adequately identify the effects of the proposed action.

162 IBLA at 291-92 (Hemmer, Admin. J., concurring). As a general matter, the majority opinion skews the thrust of the concurrence. Compare id. at 290 ( “I concur in the result and ultimately agree with my colleague’s

conclusions. ” (emphasis added)), with Maj. Op. at 13282 (“[Administrative Judge Hemmer] wrote separately, concurring “only in

the result. ”). 13316 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIsive analysis approving the Land Exchange was, in its entirety, arbitrary and capricious.

I cannot agree with this result, which seems uninterested in

the BLM’s actual “public interest ” determination. Nor can I condone an approach that gives short shrift to the deference judges are supposed to apply to agency action review under

our en banc decision in Lands Council . As previously discussed, there was nothing improper about the BLM’s evaluation of the foreseeable use of the selected lands. Even if there were gaps or imperfections in the BLM’s analysis, the agency action here still does not rise to the level of an arbitrary or capricious determination.

IV

In reaching its result, the majority focuses almost exclusively on the regulatory mechanism behind MPOs, while at the same time diminishing or ignoring altogether Asarco’s preexisting mining rights under the Mining Law, the standard for and purpose of FLPMA land exchanges, and the state and federal environmental regulations that remain applicable to the selected lands whether under private or public ownership.The thrust of the opinion relates to the difference in governmental oversight of mining operations conducted on federal versus non-federal lands—i.e., whether prior agency approval of mining plans is required. This demonstrates a clear distrust of Asarco and the BLM—a distrust I find unsupported in the

extensive record before us. **10**

**10** The majority even insinuates that the Mining Law might require MPO submission and approval as a condition of entering into a land exchange.

See Maj. Op. at § III.B. It is quite certain that the Mining Law places no requirements on the execution of land exchanges authorized by FLPMA. The Mining Law is relevant here only to the extent Asarco’s preexisting mining rights on the selected lands factored into the agency’s analysis

under FLPMA and NEPA. 13317

C ENTER FORB IOLOGICAL D IVERSITY v. USDOIThe majority is plainly concerned about the unavoidable uncertainty regarding the ultimate environmental impacts that will occur, which admittedly could be substantial and perhapsdifferent than estimated in the EIS. Apprehension over a speculative outcome should neither drive a particular result nor prompt the creation of bad law. **11** Unfortunately, I fear that my colleagues have succumbed to this temptation and, in doing so, have sacrificed the integrity of our precedent and the best interests of the public in order to achieve a particular outcome
in the instant case.

The majority’s holding is shortsighted and unreasonably impairs the BLM’s ability to effectively manage the public lands in a manner that we all desire. In practice, the newly minted quasi-MPO requirement will unquestionably stifle, if not altogether stymie, land exchanges, especially whenever mining companies are involved or mining-related activities are contemplated. Indeed, this judicially created hurdle would be, in application, a brick wall.

Furthermore, by grafting the time-consuming and expensive MPO process onto FLPMA’s “public interest ” determination (ostensibly though NEPA), our opinion todayeliminates one key incentive that encourages private landowners, such as Asarco and other mining claim holders, to offer their valuable private property in exchange for federal land. Like it or not, most businesses are driven largely by economicconsiderations. At some point claim holders will elect to proceed through the MPO or patenting process in order to engage in mining activities and to simultaneously develop or market their valuable private lands for additional commercial gain. Then what? In the instant case, for example, the public is

**11** I also note that a mining company could theoretically deviate from an approved MPO or quasi-MPO after a land exchange is effectuated andonce the public land is conveyed to private ownership. Therefore, I suspect that the majority’s new NEPA hurdle does not resolve its concerns and, practically speaking, serves no legitimate purpose. 13318 C ENTER FORB IOLOGICAL D IVERSITY v. USDOIdeprived of the offered lands, which are undisputedly superior in almost all respects (except for mineral deposits) to the selected lands—a collection of scattered parcels near anactive, large-scale mining operation, which are, and will continue to be, heavily burdened by mining claims. In addition to being legally untenable, the majority’s approach announced today is utterly misguided and contrary to the best interests and welfare of the public at large.

V

The BLM’s conclusion that the foreseeable use of the selected lands includes mining activities and related uses is certainly supported by substantial evidence in the record. See
Dickinson v. Zurko , 527 U.S. 150, 163-64 (1999) (noting thatthe standard is even more deferential than the clearly erroneous standard of review). Neither NEPA nor FLPMA requires that Asarco prepare and submit a quasi-MPO or that the BLM conduct a quasi-MPO approval process in order to determine whether a proposed land exchange is in the public interest.

I would faithfully apply our precedent and affirm the district court’s summary judgment in favor of the BLM andAsarco. Today’s opinion embodies the type of judicial meddling in agency action that we intended to put to rest in Lands
Council. Its implications are far-reaching and severe. In order to achieve a particular result, my colleagues set the stage for a catastrophic collapse of the mine shaft timbers of deferential administrative law. For these reasons, I dissent. Has anyone seen the canary? 13319

C ENTER FORB IOLOGICAL D IVERSITY v. USDOI