California Court Clarifies CEQA Review for Mining Operations on Federal Land

Nelson v. County of Kern

California's Fifth District Court of Appeal has issued a new decision which clarifies the scope of the CEQA environmental review for mining operations on federal land. In Nelson v. County of Kern (DJDAR 17585, Nov. 19, 2010), the court held that Kern County interpreted its CEQA obligations too narrowly by analyzing the impacts of only a reclamation plan, where the mining operation was approved by a federal agency and subjected to a separate environmental review under NEPA. The decision is a good illustration of the pitfalls facing resource development projects on federal land when state and federal agencies are involved and both CEQA and NEPA apply.

The case involved a proposal to reinstate surface mining operations on BLM-managed land at an inactive mining site. The project contemplated mining and reclamation over 30 years over a total of 40 acres. In June 2005, the applicant filed concurrent applications to the county and the BLM. The BLM went first, analyzing the proposed plan of operations by preparing an Environmental Assessment under NEPA. In November 2005, the BLM adopted a finding of no significant impact and approved the plan of operations. Three months later, the county commenced its CEQA process, but limited its review solely to the reclamation plan approval, believing that mining impacts had been adequately analyzed by the BLM. The County took this cue from a 1992 Memorandum of Understanding which allocates federal and state responsibilities for processing mining projects on federal land. The county interpreted the MOU as allocating to the BLM the authority to approve mining operations, while reserving to the county the responsibility to approve a reclamation plan satisfying state law.

In the ensuing litigation and appeal, the Court of Appeal faulted the county's limited CEQA review and its decision to approve only a reclamation plan. The court noted that the state Surface Mining and Reclamation Act (SMARA) required the county to approve both a reclamation plan and mining permit. Thus, in view of CEQA's requirement that lead agencies evaluate the "whole of an action," the Court found that the county was required to evaluate the entire mining and reclamation proposal. Turning to the MOU, the Court held that the county had misinterpreted its role. In the Court's view, the MOU required the county and BLM only to "work cooperatively" on projects. This could take the form of a coordinated environmental review and "functionally equivalent" documents satisfying both CEQA and NEPA, but the MOU did not create a hard-line division of labor which relegated the county to approving only a reclamation plan and taking no role in analyzing the impacts of mining. Finally, the Court was careful to preserve existing case law on the CEQA review for "vested" mining operations, a circumstance not present here. The Court endorsed past decisions holding that in the case of vested operations, a lead agency can appropriately limit its CEQA review to the impacts of approving a reclamation plan.

The Nelson decision, although not breaking significant new ground, provides much needed guidance in light of the recent increase in solar, mining, geothermal and other resource development on federally-owned land. CEQA lead agencies responsible for these projects would be well advised to coordinate their environmental reviews with those of federal agencies under NEPA. The CEQA Guidelines offer a number of tools allowing CEQA lead agencies to incorporate NEPA documents, and provide opportunities to shorten the CEQA process. These provisions are entirely consistent with the requirements of the current MOU, as alluded to by the Court above.

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