PHOENIX, Ariz.— The Ninth Circuit Court of Appeals has upheld a decision halting the Bureau of Land Management’s plans for a land exchange with mining corporation Asarco LLC.
The panel’s decision on Thursday upheld a 2009 ruling overturning the BLM’s plans to swap more than 10,000 acres of public land east of Phoenix for about 7,300 acres of private land from Asarco. Asarco had sought an “en banc,” or panel, review of a 2009 decision by a panel of three judges in the same court; that ruling also overturned the BLM’s approval of the land exchange, calling it “arbitrary and capricious.” Thursday’s ruling affirms and strengthens the 2009 ruling and denies Asarco’s petition for further review.
“This ruling is a big win for public lands and wildlife,” said Taylor McKinnon with the Center for Biological Diversity, “It affirms BLM’s duty to regulate mining in a way that doesn’t cause undue degradation, and it tips the scales in the public’s favor on future mining land-exchange proposals.”
The BLM’s environmental impact statement incorrectly concluded that mining operations and impacts would have been the same regardless of whether the land exchange took place, based on the agency’s erroneous view that federal laws could impose no constraints on whether or how Asarco would conduct mining on public land.
In turn, the court held that the flawed analysis, in violation of the National Environmental Policy Act, also rendered arbitrary BLM’s determination that the land exchange was in the public interest. The public’s interest is a prerequisite to the approval of land exchanges under the Federal Land Policy and Management Act.
“The court upheld a longstanding principle of the National Environmental Policy Act: The public has a right to an unvarnished evaluation of the impacts of a proposal,” said Chris Krupp, Western Lands Project staff attorney. “Here, the record shows that the Bureau’s analysis was so biased that a sister agency – the Environmental Protection Agency – chastised the BLM for its one-sided review.”
The Center for Biological Diversity, Western Lands Project and Sierra Club had challenged the land exchange in order to protect the important wildlife habitat in the area and in nearby wilderness. The lands subject to the exchange provide important habitat for rare plants and animals including desert tortoises, bighorn sheep, and many species of birds. Had it been allowed to proceed, the proposed land exchange would have essentially gutted the White Canyon Resource Conservation Area by allowing mining in a largely pristine place.
“This decision will help ensure more protection for Arizona’s public lands and wildlife,” said Sandy Bahr. “The court made it clear that mining on these public lands is not a given and the BLM must take seriously its duty to ‘prevent undue degradation’ under federal law.”
Conservation groups were represented by attorney Roger Flynn and Jeffrey Parsons of the Western Mining Action Project.