Center for Biological Diversity v. Salazar
2013 WL 440727
In Center for Biological Diversity v. Salazar, 2013 WL 440727, the Ninth Circuit held that a lengthy hiatus in mining operations did not automatically warrant a new plan of operations from the Bureau of Land Management before restarting the mine.
The case involved a uranium mining operation in Arizona. BLM approved the mine's plan of operations in 1988, pursuant to the Part 3809 regulations and following NEPA review. The plan contemplated that periods of inactivity might occur, and included interim management provisions for such an event. In 1992, after a fall in uranium prices, the operator suspended activity. The mine was idle for seventeen years, and during that period, the operator followed the interim management provisions of the plan, and BLM continued to make regular inspections. In 2007, the operator advised BLM of plans to reactivate the mine. BLM allowed the mine to restart, without requiring a revised plan of operations or conducting a full NEPA evaluation.
The Center for Biological Diversity sued BLM to stop the mine from reopening. CBD argued that the 17-year cessation rendered the plan of operations ineffective under 43 C.F.R. § 3809.423, which states that a plan of operations remains in effect for "as long as [the operator is] conducting operations..." Because the mine unquestionably stopped operations, CBD contended that a new plan had to be approved before mining could restart.
The Ninth Circuit disagreed with CBD, and upheld BLM's decision to allow the mine to reopen without a new plan of operations. The court acknowledged that § 3809.423, "when read in isolation," seemed to require a new plan of operations after a cessation in mining activities. But the court also noted that other BLM regulations provided for interim management of idle mines, and periodic inspections of suspended operations. "These mechanisms...would be meaningless if a plan of operations automatically became ineffective upon temporary cessation of mining activities." The Ninth Circuit held that, as a whole, BLM's regulations allowed mines to temporarily suspend operations and reopen after closure without new BLM approvals.
Notably, the Ninth Circuit declined to hold that the Part 3809 allow an indefinite closure. The court was clear that BLM had the power to cut short a plan of operations after periods of inactivity in an appropriate case. Nonetheless, the decision highlights the importance of carefully crafting a plan of operations to address shifting markets and other foreseeable contingencies.
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