Data source
Date of text
23 Dec 2010
Original language


Type of text
National - higher court
Reference number
No. 09-35729
Court name
United States Court of Appeal for the Ninth Circuit

Several environmental groups filed suit attempting to prevent the expansion of a phosphate mine operated by J.R. Simplot Company. The suit, which originated in the District Court of Idaho, challenged methodology and information used by the BLM and U.S. Forest Service in approving the expansion of the Simplot Smokey Canyon Mine. In particular the groups alleged the agencies 1) acted arbitrarily and capriciously in violation of NEPA; 2) violated NEPA’s hard look and public disclosure requirements; and 3) failed to acquire a Sec. 401 certification under the Clean Water Act. The District court ruled for the agencies. On appeal the Ninth Circuit affirmed on all allegations.
On appeal the court concluded the agencies did not act arbitrarily or capriciously in violation of the CWA and NFMA in approving the mine expansion. In reviewing the agency decision the court determined the agencies decisions were founded on a rational conclusion between the facts on the ground and choices made. The challenging groups argued the agencies failed to adequately examine other sources of selenium beyond Pole Canyon and Panel E. Accordingly, the groups questioned the agencies’ determinations that remediation of the two sites would sufficiently offset future pollution from the mine’s expansion. The court concluded the record demonstrated that the agencies fully evaluated the concerns raised by the six experts tasked to water quality issues. In particular the court relied upon the presence and conclusions of the second environmental consultants hired to review the studies provided by Simplot. The court discounted worries regarding the short term accuracy of the chosen model, the qualification did not, in the court’s eyes, fail to consider an important aspect of the problem.
The groups contended the agencies should have completed a more searching review in two ways: 1) they should have used additional two-dimensional modeling to fully evaluate the concerns of one member of the water quality task force; and 2) the agencies should have expended more resources to identify other existing sources of pollution. The court discounted the environmental groups’ first argument by concluding the requirement that Simplot complete future testing to verify the model predictions would not invalidate the evaluation conducted by the agencies. Further, the issuance of a license requiring the future testing provides the agencies with a means to enforce conditions should the testing reveal new information. Arguably, the agencies would be authorized to require Simplot to take corrective action.
In regard to the environmental groups’ second alleged violation, the court noted that NEPA requires only evaluation of the proposed plan’s future environmental impact. Therefore, because the agencies concluded the remediation efforts at Pole Canyon and Panel E would sufficiently offset future pollution additional investigation of pollution sources was not necessary.
The final area of allegations raised by the environmental groups stemmed from section 401 certification requirements relevant to point source pollution under the clean water act. The court concluded this section did not apply because the mining pits protected by the cover do not qualify as a point source. The court identified two potential point sources. The first potential point source is where water runs off the top of the cover. At this point the water entered a type of storm water drain before being released. Simplot had already obtained a 401 certification for the storm water system and therefore no additional certification was necessary. The second potential point source occurs when some of the water seeps through the covers into the pits containing waste rock. The court concluded this discharge was nonpoint source because there is no confinement or containment of the water. The small amount of water estimated to seep into the pits is not collected or channeled but rather filters through approximately 400 to 1000 feet of various overburden.