FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL DIVERSITY; 

WESTERN LAND EXCHANGE PROJECT;

SIERRA CLUB,

Plaintiffs-Appellants,

No. 07-16423

v.

D.C. No.

UNITED STATES DEPARTMENT OF THE  CV-01-01758-ROS

INTERIOR; BUREAU OF LAND

MANAGEMENT, OPINION

Defendants-Appellees,

ASARCO LLC,

Defendant-Intervenor-Appellee. 

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

13269
COUNSEL

Roger Flynn, Jeffrey C. Parsons, WESTERN MINING

ACTION PROJECT, Lyons, Colorado, for the appellants.

13272 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Edward 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 of

the 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 the

land 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 include

detailed 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13273
As 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
In 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 of

selected lands are located near the Ray Mine and the community of Ray, Arizona. Five of the parcels are located twelve

to 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 for

desert 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, and

some 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13275
Asarco and the BLM are forthright in stating that they foresee the following five uses for the selected lands following the

land 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Parcel (320 acres), the Tomlin Parcels (320 acres), the

McCracken Mountain Parcels (6,384 acres), and the Sacramento Valley Parcel (120 acres). Following the land

exchange, no mining claims would exist or be permitted on

the 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, 42

F.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 special

status species, potential habitat for some threatened or endangered species, including peregrine falcons, and proposed critical habitat for the cactus ferruginous pygmy owl. The offered

lands 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 various

federal, state, and local agencies, elected representatives, nongovernmental organizations, tribal governments, and private

individuals 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13277
pages 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 would

enable 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 began

in 1994, EPA has recommended that the DEIS provide certain information that we believe would be

useful and relevant in a NEPA analysis for a land

exchange 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 alternatives

and 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 and

necessary 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
the DEIS and are particularly troubled that the DEIS

was published at a time when our headquarters office

was 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 we

believe 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 and

responding 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:

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13279
[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” — that

is, whether or not there was a land exchange — played a critical role in the FEIS. The FEIS contains an analysis of the

environmental consequences of mining for upland plant communities, riparian plant communities, state and BLM special

status plants, wildlife habitats, wildlife (including state and

BLM 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
tion” 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 of

these 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 lands

for 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 the

public 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, “This

issue 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),

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13281
which 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 district

court. 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
a 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 must

ensure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action . . . . [W]e must

defer 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13283
meaning 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 that

require 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 its

decision, 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 CENTER FOR BIOLOGICAL DIVERSITY 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 the

environmental 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 Alternative

would 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 exchange

does 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)

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13285
(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 its

claims 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Each 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 plan

to 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13287
have 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 prepare

an 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 provide

detailed information on the environmental impacts of Asarco’s planned mining as outlined in the MPO. Because the

MPO 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
In 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 MPOs

will 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13289
than 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 would

permit 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 in

accordance with the Mining Law. Under the second alternative, Asarco would not be restricted in any way by the Mining

Law of 1872. In these circumstances, NEPA requires a meaningful analysis of the different environmental consequences

that would result from public ownership (with an MPO

requirement) 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 proposed

exchange by comparing the likely environmental consequences of mining on the selected lands under a regime of

13290 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
approved 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 that

will 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 the

Interior 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.

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13291
§ 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 and

local 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 ownership

pattern; (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 plan

expansions, 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 land

exchange 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 Asarco

engages in mining on the selected lands may differ substan13292 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
tially 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13293
[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 would

have 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 incongruity

of holding that the analysis in the FEIS of the no action alternative violates NEPA with respect to the land exchange but

not 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 of

1872 would be violated if the land exchange were to be effectuated on the current record. That is, we do not reach the

question 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
remain in the public domain. That question may or may not

be 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13295
fundamentally 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 the

ability 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 proper

level of deference owed to agency determinations. Nevertheless, my colleagues disregard that precedent and once again

endeavor 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

1As 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 Mohave

Counties 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
Land 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 exclusively

on 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 to

undermine 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13297
Building upon the shaky foundation of these two highly

questionable 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 already

holds 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

2Before 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
NEPA. 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 administered

by 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 in

Federal 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). 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13299
Public land exchanges frequently benefit everyone involved

in 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 of

parklands, 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 swaps

is 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

3Despite 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 and

reasonable 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 apparently

rich in copper and silver—minerals in high demand by our technologydriven economy. 

13300 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
mineral 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 “has

the 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 as

the 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. 

4The 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13301
The 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 beyond

casual 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 totality

of the 10,976 acres that comprise the selected lands is completely encumbered by at least one of 751 mining or mill site

claims. Asarco holds 747 of these claims. Accordingly, Asarco’s ability to develop its claims on the selected lands and to

13302 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
engage 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 consider

an 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13303
or 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 Land

Exchange 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
occur 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 the

selected 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 the

selected 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 adopt

a 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.

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13305
In 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 point

that 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-related

activity 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 that

mining-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 claims

to 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
whether 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 of

copper 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. Nor

do my colleagues disclose their belief regarding how the inevitable mining activities might “differ substantially.” It is of

course 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 or

illogical 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, that

conclusion 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 of

valuable 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.

5The Court reversed our panel opinion in Catholic Action of

Hawaii/Peace Education Project v. Brown, 643 F.2d 569 (9th Cir. 1980).

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13307
§ 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 not

be 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 approving

a 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 engaged

in 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 the

particular 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

6As 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
environmental regulator in a manner that unnecessarily and

unduly degrades the environment. And, in doing so, mining

companies 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 mining

development 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 and

considered 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

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13309
BLM 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 of

what 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 an

analysis 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

7The majority is wrong on multiple fronts. As discussed above, the

BLM 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 therefore

seeks to impose the formal MPO requirement into the land exchange con13310 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
This 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 mimicking

an 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 of

a 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 the

BLM’s view, an MPO was neither necessary to reach an informed conclusion nor required by the law it administers. Once again, this part of the

record 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). 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13311
cloth, . . . 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 agency

action 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 for

us 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
BLM 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 Asarco

engages 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 approval

of 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 “checker

board” land ownership pattern and removing inholdings from the Mt. Tipton Wilderness). This will

remove resource and use conflicts, facilitate a more

efficient management, and enable better implementaCENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13313
tion 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 and

management. 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 as

approved 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 federal

permits from other agencies administering significant environmental programs such as the Clean

Water Act and Clean Air Act.

13314 CENTER FOR BIOLOGICAL DIVERSITY 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 arising

from 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 Action

Alternative, 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 portions

of 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 patenting

process. 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

8Despite 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13315
activities. 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 Land

Exchange is consummated, my colleagues hold that the exten9The 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
sive 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

10The 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. 

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13317
The majority is plainly concerned about the unavoidable

uncertainty regarding the ultimate environmental impacts that

will occur, which admittedly could be substantial and perhaps

different 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 today

eliminates 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 economic

considerations. 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

11I also note that a mining company could theoretically deviate from an

approved MPO or quasi-MPO after a land exchange is effectuated and

once 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 CENTER FOR BIOLOGICAL DIVERSITY v. USDOI
deprived 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 an

active, 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 that

the 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 and

Asarco. 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?

CENTER FOR BIOLOGICAL DIVERSITY v. USDOI 13319