GREAT BASIN MINE WATCH AND FRIENDS OF THE PANAMINTS APPEAL OF THE BRIGGS MINE EXPLORATION DECISION 1

Great Basin Mine Watch (“GBMW”) and Friends of the Panamints (FOP) (collectively “Appellants”) hereby appeal the Bureau of Land Management’s (“BLM”) Finding of No Significant Impact / Decision Record (“FONSI/DR”) and Decision approving the Plan of Operations for the Cecil R-Jackson Exploration Project (“Project” or “Cecil R Project”), submitted by CR Briggs Co. (“Operator” or “CR Briggs”) (Case # CACA-42806)(attached as Exhibit 1). These decisions were issued by the BLM Ridgecrest, California Field Office Manager Hector A. Villalobos on December 23, 2002. The FONSI/DR approves the Cecil R-Jackson Exploration Project as described in the revised Environmental Assessment (“EA”) BLM/CA/650/2002/082 (attached as Exhibit 2). This Notice of Appeal is filed within 30 days of the date the Decision Record was made available to the public and is therefore timely.

The reasons for this appeal are summarized in the following Petition for Stay Pending Appeal. This appeal and Stay Petition also constitute the Appellants’ Statement of Reasons.

Throughout the EA process and during consideration of the Cecil R Project, the BLM has acted contrary to the statutory directives of the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA), contrary to its own and Department of Interior regulations, and contrary to the best interests of the public and the environment because it failed to comply with either the letter or spirit of applicable law.

The Cecil R Project is a mineral exploration project proposed adjacent to Death Valley National Park in the Panamint Mountains. The Project would be located on BLM lands within the California Desert Conservation Area (CDCA), established by FLPMA. These CDCA lands are designated as Class L – Limited Use – under the CDCA Plan originally issued by BLM in 1980 (later amended). The FONSI/DR authorizes exploration activities within an area of roughly 3000 acres, although the FONSI/DR limits total disturbance to 100 acres.

Although only 100 acres will be directly disturbed in the short-term, neither CR Briggs nor BLM has informed the public where the actual roads, drill pads, etc., will occur within the 3000 acres. BLM has left the details of the exploration up to CR Briggs. In addition to the obvious problems under NEPA, the lack of any detailed plan for the approved subsequent phases of exploration also violates the BLM subpart 3809 regulatory requirements for a detailed plan of operations.

Instead of requiring detailed exploration plans from the company, or considering the alternative of a phased-exploration project, BLM has approved a go-anywhere project and left the choice of exploration methods completely up to CR Briggs, with little to no BLM oversight. This is despite the requirement under the CDCA Plan that the primary management goal for these Class L Limited Lands is “Protecting sensitive, natural, scenic, ecological, and cultural resource values. Management is to provide for low-intensity, carefully controlled multiple use of the resources, while ensuring that sensitive values are not significantly diminished.” FONSI/DR at 2, quoting the CDCA Plan (emphasis added).

In this appeal and request for stay, Appellants ask the Board to vacate and remand the Project FONSI/DR and EA pending the BLM’s compliance with FLPMA and NEPA, as well as all other applicable requirements. Appellants further request the Board to stay the Project approval to preserve the status quo until Appellants’ claims can be properly heard and decided. If a stay is not issued, substantial and irreparable harm to Appellants’ interests and the environment will certainly occur before this Board issues a decision.

Appellant Great Basin Mine Watch (“GBMW”) is a non-profit organization of individuals who have used, enjoyed, and valued the area of the proposed Project for many years. Members of GBMW hike, camp, view and photograph wild plant and animal life, and generally enjoy using the area of the proposed Project for recreational and aesthetic purposes. These uses will be adversely affected by the proposed operation. See Declaration of GBMW member Thomas Myers (attached as Exhibit 3).

Appellant Friends of the Panamints (“FOP”) is a non-profit organization dedicated to the conservation of the natural resources of the Panamint Mountains. Members of FOP share the same uses and enjoyment of the land at and near the proposed mine, and will be similarly adversely affected by the proposed Project, as the members of GBMW. See Declaration of FOP member Thomas Budlong (attached as Exhibit 4). Both Appellant organizations have submitted detailed comments to the BLM regarding the proposed Project. See Declaration of GBMW member Thomas Myers; and Declaration of FOP member Thomas Budlong.

The BLM’s decision to approve the Cecil R Project directly and significantly affects members of both Appellant organizations. The Project will result in severe adverse impacts to public land resources, landscape fragmentation, disruption to cultural and historical resources and wildlife, air pollution, an increase in traffic and dust along roads and right-of-ways, a decrease in the semi-primitive recreation experience in the project area, a decrease in the ability to enjoy the wildlife and aesthetic qualities of the area at and surrounding the proposed mine, among additional environmental and other impacts.

Accordingly, all Appellants have standing to bring this appeal. See Kendall’s Concerned Area Residents, 129 IBLA 130 (1994).

The Department’s stay regulation, 43 CFR § 4.21, was established in January, 1993, in order to ensure that the public interest in preserving the status quo during the pendency of appeals was protected while at the same time preventing legitimate federal actions from unnecessary obstruction by meritless appeals. To accomplish this goal, 43 CFR § 4.21(b)(1) provides:

A petition for a stay of a decision pending appeal shall show sufficient justification based on the following standards:

(iii) The likelihood of immediate and irreparable harm if the stay is not granted, and

The IBLA has applied these standards to parties seeking a stay of the BLM’s approval of a mining plan. Island Mountain Protectors, et al., IBLA 97-76, 97-77, 97-85, Order - Stay of Decision Granted, at 4 (June 16, 1997).

In promulgating these Rules, a central question confronting the Department was the level of scrutiny under which stay petitions would be reviewed. While commenters on the draft regulation urged the Department to equate the Board’s review of stay petitions with requests for injunctions in federal court, the Department stated:

The Department declines to heighten the standard for meeting the four criteria listed in paragraph (b)(1). The Department believes, as a matter of policy, that a lesser standard is warranted for parties wishing to obtain an administrative review of a decision as opposed to judicial review in federal court.

58 Fed. Reg. 4939, 4941 (Jan. 19, 1993). Although the Appellants have the burden of proof to demonstrate that a stay should be granted, the Department has recognized the important public policy served by preserving the status quo until all issues have been fully reviewed.

In his detailed review of IBLA practice and procedure, IBLA Judge Hughes succinctly stated this position:

[A]llowing BLM’s action to remain in effect might enable illegal activity to continue and even to be irrevocably completed before it can be identified and stopped by IBLA action. Of particular concern is mineral development that may be environmentally sensitive, as it may be difficult or impossible to fully rectify environmental damage once mineral development begins.

Hughes, “Practice and Procedure Before the Interior Board of Land Appeals,” Public Land and Resources Digest 11, 25 (1994)(emphasis added). This is just such a case.

The BLM’s decisions approving the Project are final and in “full force and effect.” Project construction is expected to start within a matter of days or weeks. In order to bring this to the immediate attention of the Board, this Request for Stay and Appeal was filed as soon as possible after Appellants received the BLM’s decision documents.

Appellants will suffer immediate and irreparable harm to their legally protected interests if a stay is not granted. Significant injury to the Appellants’ use and enjoyment of the Project area and affected lands and resources will occur immediately upon commencement of

construction. Once the road-building, drill pad construction, and drilling begins, the environmental status quo ante will be nearly impossible to restore.

On the other hand, no injury will occur to BLM if the status quo is protected. There are no environmental benefits of the proposed project and the BLM will receive no economic return from the ore exploration.

CR Briggs and the BLM argue that it is uncertain whether full-scale mining will occur at this site. Since any actual financial return to the company would only accrue after full-scale mining begins, staying the start of exploration will have minimal long-term economic consequences. The operator’s likely economic argument is similar to that which could be made by any applicant for industrial operations on public land. In any event, even if the operator can and does make some allegation of financial harm caused by delay, unlike environmental harm, such financial loss is not considered irreparable. See Samson v. Murray, 415 U.S. 61 (1974). The company’s preferred timeframe for construction and exploration should not be grounds for moving forward with environmentally destructive activities before the Board has had adequate time to review Appellants’ claims.

Balanced against the minimal impact to CR Briggs from a delay in exploration is the severe impact of road construction and drilling in specially-designated Class L lands. The public interest in preventing irreparable resource damage before the legality of an action can be established weighs heavily against allowing exploration to begin without this Board’s full review of Appellants’ claims.

Appellants’ argument is likely to succeed on the merits in this case. The BLM failed to comply with mandatory FLPMA mining regulations, the CDCA Plan, and did not adequately analyze the affected environment nor a full range of alternatives as required by NEPA. The BLM has approved a multi-phase exploration project without knowing where the actual impacts will occur. In addition, the BLM failed to comply with its mandate to prevent unnecessary and undue degradation to public lands. For these reasons, as discussed in full below, the BLM’s approval of the Project stands in violation of federal law and should be invalidated by this Board.

In determining whether an appellant has met the criteria for a stay, the Board has stated:

In balancing the movant’s likelihood of success on the merits against the potential impact of an injunction on the parties, we have also noted that the appellant’s probability of prevailing on the merits need not be free from doubt to justify at least an interim stay.

Jan Wroncy, 124 IBLA 150, 152 (1992). Although Wroncy was decided shortly before the current stay regulations (43 CFR § 4.21) were issued, the Board noted the proposed regulations as relevant. Id. at n. 5. Importantly, the final rule’s criteria for granting a stay, 43 CFR § 4.21(b)(1), did not significantly change from the draft to final rule. More recently, and in the mining approval context, the IBLA stated:

The likelihood that Appellants will prevail on the merits does not need to be free from doubt to justify granting a stay. “In balancing the likelihood of movant’s success against the potential consequences of a stay on the other parties it has been held that `it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.’”

Island Mountain Protectors, 97-76, etc., at 4 (citations omitted). The Appellants easily satisfy the Wroncy and Island Mountain Protectors standard.

In evaluating Appellants’ likelihood of success on the merits, this Board should bear in mind that the Department’s final rule specifically rejected the suggestion that a petitioner for a stay must show a “substantial” likelihood of success. In light of the strength of the Appellants’ arguments, and the Department’s policy against placing an onerous burden on petitioners for a stay, this Board should conclude that the Appellants’ have raised a “fair ground for litigation” and thus the BLM action should be stayed.

a. Approval of the Multi-Phase Project Instead of a Limited- Phase Project Does Not Conform with CDCA Class L Requirements

The FONSI/DR approved a multi-phase exploration project instead of a more limited, and less destructive, initial phase project. Instead of approving a limited initial phase and then, based on the exploration results, allowing CR Briggs to apply for expanded operations, the BLM delegated the decision to expand operations to the company, without any additional review or public input. In other words, instead of meeting the CDCA Plan’s requirement of “limited use,” BLM has essentially granted CR Briggs’ initial and maximum request for up to 100 acres of roads, with the location, amount and timing of those roads and drill pads left up to the company’s discretion.[1]

This certainly does not meet the CDCA Plan’s requirement that projects be “carefully controlled” and only result in “limited” impacts on Class L lands. The overriding management requirements for Class L lands are as follows:

Multiple-Use Class L (Limited Use) protects sensitive, natural, scenic, ecological, and cultural resource values. Public lands designated as Class L are managed to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished.

CDCA Plan at p. 13. Class L is in contrast with Class M (Moderate Use) which specifically recognizes mining as a use that only requires the BLM to “mitigate damage to those [desert] resources which permitted uses may cause.” Id.

The CDCA Plan establishes four classes of land for management purposes. Under the Plan:

Within each multiple-use class designation residual conflicts will occur naturally, although they are most limited in Class C – the “Controlled Use” class – with its dedication to wilderness characteristics and values. The conflicts increase, however, in a Class L – “Limited Use” – designation, where judgment is called for in allowing consumptive uses only up to the point that sensitive natural and cultural values might be degraded. Class M – the “Moderate Use” class – calls for subsequent tradeoffs between a number of acceptable uses. Even Class I – “Intensive Use” – designed to permit intensive and single uses, is still open to negotiation between those uses.

Thus, in Class L lands, multiple uses such as mining can occur, but only at “lower-intensity, carefully controlled” levels which “allow[s] consumptive uses only up to the point that sensitive natural and cultural values might be degraded.” Class M lands allow mining to occur at much higher use levels, requiring only that other resource damage be “mitigated.”

The Cecil R-Jackson FONSI/DR and EA make no distinction between BLM’s duties under Class L and Class M lands – grouping them together under the usual “multiple use” category. Indeed, in describing the requirements under the CDCA Plan, the EA simply states that the Project “is consistent with the CDCA Plan.” Revised EA at 1. The FONSI/DR similarly states that the Project “occurs within multiple use class L lands and is consistent with management prescriptions for class L lands under the CDCA Plan (1980) as amended.” FONSI/DR at 12. This “consistency” finding is based on a generalized statement that the Project complies with the 43 CFR subpart 3809 hardrock mining regulations and that the “method of proposed exploration is consistent with best management practices for such exploration on Class L lands.” Id. (emphasis added).

Here, BLM confuses its duty under 43 CFR Subpart 3809 to have an acceptable “method” of exploration with its duty under the CDCA to ensure that any exploration, regardless of the method, be at “lower-intensity, carefully controlled” levels which “allow[s] consumptive uses only up to the point that sensitive natural and cultural values might be degraded.” CDCA Plan at 13, 21. In other words, according to BLM, as long as the method of exploration is acceptable under 43 CFR Subpart 3809, the amount of exploration, miles of roads, etc., is immaterial to its duties under the CDCA Plan.[2] Such a severely constrained view of BLM’s duties under the Plan should be rejected by the IBLA.

The law is absolutely clear that BLM must comply with the requirements and promises made in its land use plans. FLPMA, 43 U.S.C. § 1732(a), states in no uncertain terms that “the Secretary shall manage the public lands . . . in accordance with [] land use plans.” This mandatory language is echoed in FLPMA’s implementing regulations, which declare that “[a]ll future resource management authorizations and actions . . . shall conform to the approved plan.” 43 C.F.R. § 1610.5-3(a) (emphasis added).[3]

Interior’s administrative decisions applying the FLPMA plan consistency requirement reflect the agency’s mandatory duty to fully and strictly comply with the governing land management plans. For example, in Southern Utah Wilderness Alliance, 111 IBLA 207, 210-211 (1989), SUWA argued that a BLM decision permitting a motorized vehicle event violated 43 U.S.C. §1732(a) because the event was inconsistent with the land management plan’s declaration that the area in question was closed to motorized use. The IBLA agreed, and held that “the decision to issue a recreation permit allowing the Jeep Jamboree was contrary to the existing [land management plan] . . . and must be vacated.” Id. at 212. See also Jenott Mining Corp., 134 IBLA 191, 194 (1995) (BLM must manage according to the terms of its land use plans, and thus properly refused to approve small mining application where area was closed to motorized vehicles); Uintah Mountain Club, 112 IBLA 287, 291 (1990) (striking down a BLM off-road vehicle route designation which did not conform to the applicable, approved Resource Management Plan (RMP)); Marvin Hutchings v. BLM, 116 IBLA 55, 62 (1990) (holding that day-to-day BLM management of grazing allotment must conform to RMP).

In addition to, and because of, the fact that the Project does not conform to the Class L requirements, the BLM would have to amend the CDCA Plan to allow the Project to proceed as authorized. BLM regulations state that:

If a proposed action is not in conformance, and warrants further consideration before a plan revision is scheduled, such consideration shall be through a plan amendment in accordance with the provisions of § 1610.5-5 of this title.

43 CFR § 1610.5-3(c). The BLM did not seek to amend the CDCA Plan in this case.

Instead of assuring compliance with its duty under the CDCA to “carefully control” and “limit” the impacts of projects on Class L lands, BLM approved a four-phase exploration project that gives CR Briggs unfettered discretion to determine the precise nature and extent of impacts from its exploration activities. The revised EA describes the process of deferring to the company the extent of the drilling program (up to the maximum 100 acres impact allowed by BLM).

The drilling program would proceed in four phases, with two initial targets, Cecil R and Jackson. The following description is dependent on many variables and subject to changes in timing, phasing, and emphasis. Phases 1, 2, and 3 are roughly the same for each of the target areas, although much more is currently known about the Cecil R area. Phase 4 would be a program entirely outside the Cecil R and Jackson areas to test other geologic targets.

Phase CR1 would test mineralization in the Cecil R area. It would consist of drilling approximately 25 holes. Currently planned holes are shown on Figure 3, Cecil R Phase 1 Map. The number and location of holes could vary depending on success in discovering mineralization. The drilling would take place on the upper slopes of the alluvial fan and would be completed using buggy mounted drill rigs. This phase would incorporate many existing drill roads, with minimal new road construction needed. Depending on phase 1 results, an additional phase (CR2) would be initiated to test mineralization north and south of the phase CR1 area. Phase CR2 would require the building of additional drill accesses outside the phase CR1 area. The number of holes in this phase is unknown and would depend on continued success. Phase CR3 of the drilling program would be entirely dependent on the success of phase CR2 and would include step out drilling and infill drilling to further define the mineralization. The extent of road construction would be dependent on the extent of infill and step-out drilling.

Phase J1 of the drilling program will take place in the Jackson area. The Jackson target is

located on the steep lower slopes of the Panamint Range and would require road building. Phase J1 planned holes are shown on Figure 4, Jackson Phase 1 Map. This phase would test a strong, 1,500 ft long gold anomaly extending northward from an existing drill hole. This phase would consist of an initial 12 hole program. Hole locations have not been determined. The number of holes could vary. If phase J1 is successful, phase J2 would be initiated. This phase would test down dip mineralization to the west of the phase J1 area, and also test a northern extension of the mineralization where the bedrock is covered by alluvium. Phase J3 would be entirely dependent on the success of phase J2 and would include step out drilling and infill drilling to further define mineralization.

Phase 4 of the program could include drilling in other target areas, away from the two immediate targets. This phase currently exists as a concept only, but would comply with the conditions of the plan of operations.

Each phase described above could consist of several stages of drilling as the Project Proponent develops and analyzes drilling information.

Revised EA at 10-11 (emphasis added). This scenario effectively leaves the decision whether exploration will proceed beyond the initial limited impact up to the company, instead of BLM.

Neither the FONSI/DR nor the revised EA explain why the BLM did not consider approving only the first phase of the exploration in order to meet the “limited impact” requirements of the CDCA Plan. For example, allowing the company to conduct initial limited exploration, with additional exploration dependent on BLM’s review, not the company’s, clearly more “carefully controls” the impacts to Class L lands than the BLM’s approval of all four phases at once. BLM has never explained how the agency can “carefully control” the approved Phase 4, which it admits “currently exists as a concept only.” Revised EA at 11.

Overall, instead of limiting and carefully controlling the impacts and approved uses as it is required to do under the CDCA Plan, BLM has given CR Briggs complete control over the project and its impacts. Such an abdication of BLM duties under the Class L provisions of the CDCA cannot stand.

As noted above, in order to meet the CDCA Plan’s Class L requirements: “Public lands designated as Class L are managed to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished.”

CDCA Plan at p. 13. Here, BLM fails to “ensure that sensitive values are not significantly diminished.”

For example, the EA admits that “the Proposed Action would cause emission of fine dust (PM10) from traffic and from drilling activities.” Revised EA at 20. However, the EA also admits that the area frequently exceeds the California Ambient Air Quality Standards (CAAQS) for PM10 due to weather patterns. Id. The Project will only add to these violations.

The BLM’s only response to the increase in PM10 emissions is to state that the company will comply with state air quality requirements – without detailing or describing any of these requirements – and that the Project by itself will not cause exceedences of the CAAQS for PM10. FONSI/DR at 13.[4] These predictions are done without any analysis of the actual amount of PM10 that will be generated by the up to 67 miles (or slightly less) of roads.

The BLM relies almost exclusively on the California Great Basin Unified Air Pollution Control District (GBUAPCD) Rule 401, which sets up a Best Management Practice (BMP) to reduce fugitive dust. Revised EA at 20. However, simply stating that the company will comply with Rule 401 (with no permit required) does not ensure that the Project will contribute to a violation of the CAAQS. In addition, the federal courts have specifically held that the mere goal of meeting a BMP does not mean that the applicable environmental standard will be met.

The BMPs, however, are merely a means to achieve the appropriate state Plan [environmental] standards. There is no indication in the Plan or in the agreements between the Forest Service and the [state agency] that the BMPs were to be considered standards in and of themselves. Adherence to the BMPs does not automatically ensure that the applicable state standards are being met.

Northwest Indian Cemetery Protective Ass’n v. Peterson, 795 F.2d 688, 697 (9^th Cir. 1986) (emphasis added), reversed on other grounds, Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319 (1988).

While it may be true that the Project alone would not violate the PM10 standard (although there is no data to support this claim), it is very likely, indeed almost certain, that the current PM10 problem will be exacerbated by the exposed roads and drill pads. Simply saying that the “Project related sources would be small compared to natural and man-made sources in the area,” Revised EA at 21, does not provide the level of detail under NEPA – and the assurance under FLPMA that the Project does not contribute to any violation of air quality standards.

Under FLPMA and the 43 CFR subpart 3809 regulations, as well as the Clean Air Act, the BLM cannot approve any activity that would result in any exceedence of state air quality standards. “Failure to comply with applicable environmental protection statutes and regulations thereunder will constitute unnecessary or undue degradation.” 43 CFR § 3809.0-5.[5] “All operators shall comply with applicable Federal and State air quality standards, including the Clean Air Act.” 43 CFR § 3809.2-2(a). Failure to prevent “unnecessary or undue degradation” mandates rejection of a mining plan of operations. “If there is unnecessary or undue degradation, it must be mitigated. If unnecessary or undue degradation cannot be prevented by mitigating measures, BLM is required to deny approval of the plan. 43 CFR § 3809.0-3(b).” Kendall’s Concerned Area Residents, 129 IBLA 130 (1994).

Here, the BLM admits that the PM10 CAAQS is exceeded at the site on certain days. It certainly is a reasonable assumption that the increased PM10 emissions will add to the number of days the standard will be violated. BLM cannot ignore this important impact by simply saying that “the state will take care of it.”
At a minimum, BLM should have analyzed the expected PM10 emissions under NEPA. Also, the BLM should have required mitigation measures to minimize PM10 emissions – such as road watering. Such a mitigation measure is very common at BLM-approved mine sites. The failure to minimize PM10 emissions is particularly problematic in light of the BLM’s duty “to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished.” CDCA Plan at p. 13.

Scenic Resources

Another important CDCA value that must be protected is “scenic resources.” CDCA Plan at p. 13. However, instead of minimizing impacts to the currently high-quality scenic value of the Class L lands at issue, BLM approved the company-desired full multi-phase project. At a minimum, approval of a limited Phase 1 project would result in greatly reduced visual impacts. Although BLM admits that all of the new roads would mar the scenic values of the area, Revised EA at 25, it never considered reducing the amount of roads to reduce the visual scarring.

The high-density road network of up to 67 miles approved by BLM would certainly result in a significant visual impact. At a minimum, BLM should have fully reviewed an alternative of less roads (via approval of one exploration phase at a time). By failing to consider other alternatives, BLM failed to uphold its duty to limit damage to scenic resources under the Class L requirements of the CDCA Plan.

Instead of reducing visual impacts to meet the CDCA Plan’s requirement for “lower-intensity, carefully controlled” levels which “allow[s] consumptive uses only up to the point that sensitive natural and cultural values might be degraded.” CDCA Plan at 13, 21, BLM simply stated that: “The project area is designated and managed as multiple use class L lands. The proposed project is permissible on Class L lands.” FONSI/DR at 12.

The fact that mining exploration “is permissible on Class L lands,” however, does not mean that the Class L requirements can be ignored. Again, BLM has acted as if there is no difference between its management duties under Class L and general multiple use Class M lands. Overall, BLM failed to require any special protections for the scenic values of these Class L lands – a recognized resource value protected under the CDCA Plan.

The BLM admits that the company’s submitted Plan of Operations does not contain any significant details except with regard to the initial phase of the approved multi-stage Project. As noted above, outside of the initial limited Phase 1, CR Briggs and the BLM have not yet defined the location and level of disturbance of the latter phases of exploration. Nevertheless, the FONSI/DR/EA authorizes the entire multi-phase Project even though the company has not submitted plans for the additional roads, drill pads and drilling support facilities for the approved future phases.

As noted above, the revised EA admits that BLM has no idea where the roads and drill pads will be located, except for possibly the initial Phase 1. See Revised EA at 10-11. BLM mining regulations require that all plans of operation for exploration projects sufficiently describe in detail the proposed operations:

(2) A map, preferably a topographic map, or sketch showing existing and/or proposed routes of access ... and size of each area where surface disturbance will occur;

(4) Information sufficient to describe or identify the type of operations proposed, how they will be conducted and the period during which the proposed activity will take place.

With the exception of the limited first phase, the BLM approved the Project without the required map, sketch, or other information showing where the roads, drill pads, and support facilities will be located.

The BLM can only approve a mining plan of operations that conforms to the Part 3809 requirement for a sufficiently detailed plan. Since the BLM admits that it has approved the multi-phase Project without having any details about the “operations” except possibly for Phase 1, the decision to approve the Project cannot stand. In place of requiring a complete plan for the subsequent phases, BLM has only required the company to submit future “activity reports” to the BLM. FONSI/DR at 7, Mitigation measure 18. Only then will the company submit the maps and other details that the 3809 regulations require up-front.

The IBLA has rejected the BLM’s argument that it must approve an incomplete plan of operations. In a recent case involving Appellant GBMW, the IBLA stated:

Initially, however, we wish to comment on a statement made by BLM in its Answer to appellant’s SOR [Statement of Reasons]. In response to a suggestion by GBMW [appellants] that BLM should have either returned the mining plan of operations to Cortez [plan applicant] unapproved or required Cortez to supplement its filings, BLM declared:

Since returning the plan of operations and demanding Cortez provide information on the South Pipeline is not provided for in its regulations, further discussion (returning the plan) by the BLM on this issue is not warranted. In addition, the Mining Law of 1872, as amended and the 43 CFR 3809 regulations provide mining proponents on Public lands the right to mine. As long as the BLM ensures compliance with its 43 CFR 3809 regulations and “undue or unnecessary degradation” is prohibited, the BLM must process and permit a plan of operations filed by a proponent.

(Answer at 10.) In our view, this declaration both overstates the rights of “mining proponents” and understates the authority of the BLM.

First of all, the mere filing of a plan of operations by a holder of a mining claim invests no rights in the claimant to have any plan of operations approved.

Finally, insofar as BLM has determined that it lacks adequate information on any relevant aspect of a plan of operations, BLM not only has the authority to require the filing of supplemental information, it has the obligation to do so. We emphatically reject any suggestion that BLM must limit its consideration of any aspect of a plan of operations to the information or data which a claimant chooses to provide.

Overall, the failure of the company to submit an adequate plan of operations, as well as the BLM’s failure to ascertain where critical Project facilities will be located, warrants rejection of the plan at this time.

In addition to violating FLPMA and Part 3809, the BLM’s approval of the Cecil R Project also violates NEPA. As discussed above, the BLM’s approval violates NEPA because it failed to adequately consider impacts to air quality and visual resources. In addition, BLM violated NEPA by approving the Project without knowing the location of the actual impacts and rejecting out-of-hand the reasonable, and required, alternative of only approving a limited Phase 1 exploration to meet the CDCA Class L requirements.

BLM failed to adequately review all of the impacts from the Project as required by NEPA. The Council on Environmental Quality (CEQ) regulations implementing NEPA require that each EA “[s]hall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 CFR § 1508.9(b). In this case, the BLM failed to adequately analyze the potential environmental impacts of the proposed action. The CEQ regulations also require that: “NEPA procedures must ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 CFR § 1500.1(b)(emphasis added). The BLM’s analysis of the Project is a classic violation of NEPA’s directive to “look before you leap.” The BLM has failed to conduct an adequate NEPA analysis.

BLM admits that it lacks any detailed plan or analysis for anything beyond the initial Phase 1 exploration. Essentially, the BLM has abdicated its review of “future disturbance” since that “disturbance would be dictated by the results” of the initial exploration. While Appellants understand CR Briggs’ need for Phase 1 results prior to deciding whether to continue exploration, that does not allow BLM to approve all phases of the Project before it has any detailed information regarding the amount of future disturbance. It is well settled that one of the primary purposes of NEPA is to "guarantee that the relevant information will be made available to the larger audience" so that the public can "play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). See also 40 C.F.R. § 1500.1(b) (requiring disclosure of environmental information before actions are taken).

BLM admits that the FONSI/DR/EA authorizes the entire multi-phase Project and that no additional public review or NEPA analysis will occur for the future phases of exploration. No public review is allowed regarding the project activities in the upcoming phases unless the total acreage of disturbance exceeds 100 acres. DR/FONSI at 7. The BLM cannot comply with NEPA’s requirement to review all reasonably foreseeable environmental impacts when it admits that critical aspects of the approved Project are “unknown.” If the company decides to proceed with Phase 2 after it reviews the drilling information from Phase 1, then it can propose an additional specific exploration project. Only then can the BLM adequately review the impacts and involve the public in the NEPA process.

In the EA, the BLM only considered in detail one action alternative, the plan proposed by CR Briggs. Although the EA had some limited discussion of a helicopter-access alternative, that alternative was essentially portrayed as infeasible. Revised EA at 11-12. No other alternative was seriously considered. The only other alternative noted in any detail was the No-Action alternative, which the BLM dismissed as conflicting with the 1872 Mining Law. Regarding other potential alternatives, the EA’s entire alternatives analysis was limited to one paragraph:

An alternative would be to grant only a portion of the requested drill disturbance, say 50 acres instead of the 100 acres requested by the Project Proponent, or approving disturbance in only a portion of the requested exploration area. These alternatives were eliminated from consideration for three reasons: (1) They would not meet the purpose and need of the project proposal, (2) They would change the numerical tally of disturbance and other environmental effects, but would not eliminate any single type of impact, and (3) They would not reduce any project impact below any known regulatory threshold; (e.g. BLM considers some actions to be “categorically exempt” from NEPA review due to their impacts being so small as to not be noticeable; i.e., de minimis impacts. Some activities proposed to BLM are near the de minimis threshold for some impacts and can be brought below the threshold by minor alteration in their design. Such is not

the case here). There are no impacts of the Project that would exceed any regulatory threshold due solely to the proposed acreage.

Revised EA at 12. The FONSI/DR’s alternatives discussion was even more truncated, stating simply, and without any support, that “[o]ther alternatives were considered but not analyzed as they did not improve the analysis by changing the impacts in any important way.” FONSI/DR at 8.

The EA’s short paragraph quoted above does not even mention approving the Project in phases, it merely mentions a “lesser” project of 50 acres and then dismisses that on flawed reasoning. BLM’s first reason, that a lesser project, let alone a phased project approval, “would not meet the purpose and need of the project proposal,” is not supported by any analysis. Such a statement is also untrue. For example, it is clear that approving Phase 1 would meet the purpose of the project, which is to “develop data to determine the quantity, concentration, and geometry of precious metals deposits that may occur in the proposed exploration area.” Revised EA at 1. The fact that BLM approval of Phase 2 would await results of Phase 1, while somewhat delaying the search for data, certainly does meets the project purpose of gathering data.[7]

BLM’s second reason for rejecting anything less than 100 acres of disturbance (up to 67 miles of road, see supra at footnote 2), is that such an alternative “would change the numerical tally of disturbance and other environmental effects, but would not eliminate any single type of impact.” Revised EA at 12. In other words, in BLM’s view of NEPA, the fact that one alternative would have 67 miles of road and another would have just a few miles makes no difference since its all roads anyway. There is no legal basis for BLM’s novel “type of impact” justification for avoiding its duty to review all reasonable alternatives under NEPA.

Lastly, BLM’s third justification for failing to review an alternative that would meet the Class L limited-impact standard is that such an alternative “would not reduce any project impact below any known regulatory threshold.” Revised EA at 12. Again, no support is given for this novel position. This is especially egregious since there is a “regulatory threshold” that BLM ignores – the CDCA distinction between regular Class M multiple use and Class L limited use lands. BLM’s disregard for the applicable regulatory standard and its failure to justify its decisionmaking violates NEPA as well as the APA.

“Section 102(2)(E) of NEPA requires that agencies ‘study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.’” Ayers v. Espy, 873 F.Supp. 455, 473 (D.Colo. 1994)(emphasis in original). “This provision is independent of the standard triggering preparation of an EIS and is not limited to proposed major actions significantly affecting the quality of the human environment.” Id., citing River Road Alliance, Inc. v. Corps of Engineers of United States Army, 764 F.2d 445, 452 (7^th Cir. 1985), cert. denied, 475 U.S. 1055, 106 S.Ct. 1283 (1986).

“While a federal agency need not consider all possible alternatives for a given action in preparing an EA, it must consider a range of alternatives that covers the full spectrum of possibilities.” Ayers v. Espy, 873 F.Supp. at 473. In Ayers, the Court explained that, “the government contends that the range of alternatives in an environmental assessment (EA) should not be held to the same standard as an environmental impact statement (EIS) ... I disagree.” Id. Thus, the BLM was required in this case to analyze all reasonable alternatives in the Project EA. The BLM failed to seriously analyze any action alternative except the company’s chosen Project.

As noted in the previous section, the BLM’s approval of a multi-phase exploration project without knowing any details regarding Phases 2, 3, and 4 violates NEPA. It is certainly reasonable for the BLM to have fully analyzed approving only Phase 1 – the only phase it knew much about. Indeed, due to the severe lack of information regarding the subsequent phases, an exploration project limited to the first phase of the project is the only alternative that could have conceivably been approved.

In addition, by failing to adequately identify or analyze the full scope of resources the Project will impact, the BLM could not have considered an adequate range of alternatives. To satisfy NEPA, “[t]he agency must explicate fully its course of inquiry, its analysis and its reasoning.” Dubois v. U.S. Department of Agriculture, 102 F.3d 1273, 1287 (1^st Cir. 1996). An agency decision must always have a rational basis that is both stated in the written decision and demonstrated in the administrative record accompanying the decision. Kanawha & Hocking Coal & Coke Co., 112 IBLA 365, 368 (1990). The decision must be made in a “careful and systematic manner.” Edward L. Johnson, 93 IBLA 391, 399 (1986). The record must demonstrate a “reasoned analysis of the factors involved, made in due regard for the public interest.” Alvin R. Platz, 114 IBLA 8, 15-16 (1990). Without full identification of Project operations/facilities and of impacted resources, the agency simply could not have adequately explained its course of analysis in determining the range of reasonable alternatives.

The proposed action and alternatives, if any, must be defined in sufficient detail to analyze impacts. Design features and management practices should be clearly identified for the proposed action and each alternative, including those features or practices intended to avoid or minimize environmental harm.

BLM National Environmental Policy Act Handbook, H-1790-1, IV-3(2)(a) (emphasis added).

Here, the agency failed to analyze several reasonable alternatives that fall within the “full spectrum of alternatives.” See Ayers v. Espy, 873 F.Supp. 455, 473 (D.Colo. 1994). For instance, the BLM should have analyzed a further phased exploration alternative and/or it should have considered limiting exploration to already existing disturbed areas.

Instead, BLM merely states that CR Briggs would not create new roads “wherever practical.” FONSI/DR at 7, Mitigation measure 12. Such an alternative would require the operator to confirm more extensively the mineral value in the area along the existing road before constructing new roads and drill pads in pristine areas. Such alternatives are completely in line with federal case law and the agency’s duty to protect the resources under its control. See United States v. Richardson, 599 F.2d 290, 291 (9th Cir. 1979)(holding that federal land agencies “may require the locator of an unpatented mining claim on [federal lands] to use nondestructive methods of prospecting.”).

The fundamental error of BLM’s alternatives analysis is highlighted by BLM’s response to public concerns about the Project:

Response 10: Such an alternative would be the no action alternative, which is fully evaluated in the EA.

FONSI/DR at 13. In other words, BLM equated “no new roads” with “no project.” Absolutely no support is given for this, yet another, novel interpretation of BLM’s duty to review all reasonable alternatives under NEPA.

BLM also failed to review the cumulative impacts of this Project with other past, present and reasonably foreseeable actions. For example, despite CR Briggs’ stated intention to conduct additional exploration in the area, BLM failed to analyze these impacts. This intention is made abundantly clear in the following quote from Canyon Resource’s (parent company of CR Briggs) website[8] (emphasis added):

The Company holds 14,000 acres of mining claims in the Panamint Range of southeastern California adjacent to the operating Briggs gold mine. At least six gold occurrences on this claim block have mineable gold reserves or gold mineralization encountered in drillholes. Canyon plans to systematically explore the entire claim block with the objective of the development of several mines on the Panamint Range Property.

At a minimum, Canyon intends to explore in the immediate area. The revised EA, Appendix 4 (taken from the tiered Briggs Mine FEIS) states that “…there are no known plans for substantive development of gold mining or exploration in the southern Panamint Range or Panamint Valley area.” Clearly, based on the company’s own statements, the BLM is incorrect.

In conducting a NEPA review, BLM must look at a number of types of actions and effects, including those actions and effects that are cumulative. Cumulative actions are those that “have cumulatively significant impacts and should therefore be discussed in the same impact statement.” Id. at § 1508.25(a)(2). Similar actions include those that have “common timing or geography.” Id. at § 1508.25(a)(3). A project’s “cumulative impact,” is

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

Here, BLM did not analyze the projected exploration projects in the area. Apparently, BLM’s response to comments focused on Appellants claim that BLM should have more fully reviewed the impacts of future mine development. Although BLM’s failure to undertake a review of such full-scale development also violates NEPA, the failure to undertake any detailed analysis of CR Briggs/Canyon Resources intended exploration projects in its Panamint Mountains claim block violates BLM’s duty to review cumulative impacts.

Although the FONSI/DR lists a number of mitigation measures, it is largely that – a list. Under NEPA, “[m]itigation must be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.” Carmel-By-The-Sea v. Dept. of Transportation, 123 F.3d 1142, 1154 (9^th Cir. 1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989)). “A mere listing of mitigation measures is insufficient to qualify as the reasoned discussion required by NEPA.” Northwest Indian Cemetery Protective Association v. Peterson, 795 F.2d 688, 697 (9^th Cir. 1986), rev’d on other grounds, 485 U.S. 439 (1988). “The [agency’s] broad generalizations and vague references to mitigation measures … do not constitute the detail as to mitigation measures that would be undertaken, and their effectiveness, that the Forest Service is required to provide.” Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372 (9^th Cir. 1998).

Here, the FONSI/DR lists a number of mitigation measures that BLM claims will reduce the impacts such that the Project will result in no significant impact (and thus an EIS was not done) – with little to no support or detail as to the actual measures or their effectiveness. To make matters worse, the decision to implement some of the most critical mitigation measures are left entirely up to the company.

For example, the critical issue of road construction is within the company’s, not BLM’s, discretion. The following are just a few of the “leave-it-up-to-the-company” approaches taken by BLM:

◙ “Whenever practicable, minimal impact roads will be used.” Environmental Protection Measure #1, FONSI/DR at 4. However, “whenever practicable” is never defined and will be decided by the company.

◙ “Blasting will occur only when other alternatives have been considered and eliminated as unfeasible.” Environmental Protection Measure #3, FONSI/DR at 4. While this sounds reasonable, both the BLM and the public will not be involved in this review of blasting and road building alternatives. Again, such critical reviews will be left entirely up to the company.

◙ “CR Briggs will use the currently disturbed area to the greatest extent practicable to minimize unnecessarily creating additional disturbance.” Mitigation Measure # 11, FONSI/DR at 7. Here, the critical term “to the greatest extent practicable” is at the company’s discretion.

◙ “CR Briggs will use overland access techniques wherever practical to minimize ground disturbance.” Mitigation Measure # 12, FONSI/DR at 7. Here, the critical term “wherever practical” is at the company’s discretion.

Overall, while BLM may issue a FONSI based on mitigation measures that reduce impacts to point that an EIS is not required, the analysis and description of mitigation measures must satisfy NEPA’s strict requirements. That has not occurred in this case.

The Supreme Court has stated that “environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.” Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). “If environmental harm is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Id. “An environmental injury usually is of an enduring or permanent nature, seldom remedied by money damages and generally considered irreparable.” Catron County, 75 F.3d 1429, 1440 (10th Cir. 1996).

The Project will result in immediate and irreparable injury if road-building, pad construction, and drilling are allowed to commence pending the resolution of this Appeal. Direct harm to environmental, cultural, visual, aesthetic, and other resources will occur immediately upon construction. In addition, the BLM has approved a multi-phase project without knowing any real details of the impacts of the full project. Only by granting a stay can the Board ensure the BLM complies with its statutory mandates under FLPMA and NEPA.

Because the Appellants seek to overturn a BLM decision that will have consequences for the environment which are at best uncertain and at worst disastrous, and because the issuance of a stay would preserve the environment and such resources until all issues are resolved, the granting of the requested stay would serve the interests of the public.

The BLM cannot allege that any harm to the public interest will result from a stay because the Project has little “public” benefits, outside of short-term economic interests. No environmental benefits are expected from the proposed exploration and no royalties will flow to the federal treasury. Even if the Operator can and does make some allegation of financial harm caused by delay, unlike environmental harm, such financial loss is not considered irreparable. See Samson v. Murray, 415 U.S. 61 (1974). If no further ground disturbing activities are allowed at the site until the Board rules on the merits of Appellants’ appeal, there will be no harm to any resources. The public interest favors granting the requested stay.

The Board recognized these issues in its recent granting of a stay from mining operations in Island Mountain Protectors, Order--Stay of Decision Granted, at 16-17 (June 16, 1997):

The risk of long-term, if not permanent, [environmental contamination] and its effects on the people and the environment of the area outweighs the economic harm to [the applicant], those who would be employed, and the local communities if a stay were not granted and tips the balance of harms in favor of Appellants. The public interest favors avoiding potentially significant and long-term environmental consequences.

Allowing the commencement of the proposed Project is certainly not in the public interest.

In this appeal, Appellants request that the Board vacate the FONSI/DR and EA and remand the case back to the BLM with instructions to comply with FLPMA and NEPA. Overall, based on the significant impacts from the Project, including the unreviewed and unmitigated impacts noted above, and EIS should be prepared upon remand. The BLM must also notify the company that the agency can only review a complete plan of operations that sufficiently describes the entire Project.

In the meantime, Appellants ask this Board stay the Project approval to preserve the status quo until Appellants’ claims can be properly decided. If a stay is not issued, substantial and irreparable harm to Appellants’ interests and the environment will certainly occur before this Board issues a decision.

For all of the reasons set forth above, the Appellants are entitled to a stay of the decision at hand. The balance of harms tips decidedly in Appellants’ favor. This Petition raises significant and credible questions concerning the legality of BLM’s behavior, on which Appellants are likely to succeed on the merits. Only the Appellants will suffer irreparable harm if the Project is allowed to proceed absent a complete resource inventory and environmental review, and the public interest swings decidedly in Appellants’ favor.

I, Jeffrey C. Parsons, hereby certify that I served the foregoing Appeal and Request for Stay upon the following individuals by placing it in the U.S. Mail, first-class postage prepaid, certified return receipt requested, this ____ day of January, 2003:

And upon the following individuals via overnight next business day delivery Federal Express, this ____ day of January, 2003:

[1] Although 100 acres out of 3000 acres may not seem that large of an impact, the 100 acres of actual disturbance would be quite destructive and would impact a wide area. The 100-acre figure would largely be calculated by multiplying the width of the exploration roads by the length of the road. According to the revised EA, at 9, “Roads would be constructed using bulldozers to side cast roads to a minimum safe width for travel (approximately 12 ft.). For example, a 12-foot wide road, 2/3 of a mile long, equals 42,451 square feet of disturbance. One acre equals 43,560 square feet. Thus, 100 acres of such disturbance would entail over 67 miles of roads. Although additional drill pad disturbance would reduce this mileage somewhat, it is clear that this Project will result in an extensive and highly dense road network.

[2] This myopic view of its duties under the CDCA Plan carries forward to the BLM’s failure to consider the alternative of limiting exploration approval to Phase 1. See below discussion on NEPA (discussing how BLM failed to consider such an alternative based on its view that the amount of roads didn’t matter, as long as the “type” of impact (i.e., roads) was going to occur under any action alternative anyway).

[3] 43 C.F.R. § 1601.0-5(b) defines “conformity” as requiring that “a resource management action shall be specifically provided for in the plan, or if not specifically mentioned, shall be clearly consistent with the terms, conditions, and decisions of the approved plan or plan amendment.” (Emphasis added.) “Consistent,” in turn, is defined as requiring that management actions “will adhere to the terms, conditions, and decisions of officially approved and adopted resource related plans . . . .” Id. § 1601.0-5(c).

[4] Importantly, BLM admits that “the Project does not require an air quality permit.” Revised EA at 4. Thus, outside of a vague reference to state air quality regulations, BLM is deferring protection of air quality to a state agency that has no permitting or enforcement role (due to lack of any permit).

[5] Since the original Plan of Operations for the Cecil R-Jackson Project was submitted prior to January 20, 2001, the then-existing 3809 regulations, rather then the recently revised regulations, apply. In any event, the duty to meet all federal and state environmental requirements was unchanged in either version of the 3809 regulations.

[6] “Operations” are defined as: “all functions, work, facilities, and activities in connection with prospecting, discovery and assessment work, development, extraction, and processing of mineral deposits locatable under the mining laws and all other uses reasonably incident thereto ... including but not limited to the construction of roads.” 43 CFR § 3809.0-5(f).

[7] BLM’s discretion to define the purpose and need of the Project does not permit it to do so in a manner that evades NEPA’s requirements. An agency’s definition of purpose must be reasonable. City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). Agencies do not avoid NEPA’s requirements by defining a project’s purpose so narrowly as to preclude consideration of reasonable alternatives. Simmons v. United States Army Corps of Eng’rs, 120 F.3d 664, 666 (7th Cir. 1997); City of New York v. United States Dep’t of Transp., 715 F.2d 732, 743 (2d Cir. 1983), cert. denied, 456 U.S. 1005 (1984). “One obvious way for an agency to slip past the strictures of NEPA is to contrive a purpose so slender as to define competing “reasonable alternatives” out of consideration (and even out of existence). Simmons, 120 F.3d at 666. See also City of Carmel, 123 F.3d at 1155 (“an agency cannot define its objectives in unreasonably narrow terms”); City of New York, 715 F.2d at 743 (“an agency will not be permitted to narrow the objective of its action artificially and thereby circumvent the requirement that relevant alternatives be considered”); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) cert. denied, 502 U.S. 994 (1991) (“an agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action”).

[8] http://www.canyonresources.com/.