Judge finds feds’ environmental analysis of Arizona mine insufficient

The judge said the Forest Service erroneously excluded large swaths of endangered yellow-billed cuckoo habitat likely to be adversely affected by the expansion of a pit mine in the Tonto National Forest.PHOENIX (CN) — The U.S. Forest Service violated the Endangered Species Act when it approved the expansion of a pit mine in eastern Arizona without analyzing the entirety of land likely to be adversely affected by the project, a federal judge ruled Thursday.U.S. District Judge Dominic Lanza issued a split ruling in a federal challenge to the agency’s decision to expand the Pinto Valley copper mine, giving the plaintiff, the nonprofit conservation group Sierra Club, two weeks to brief potential remedies.The Pinto Valley Mine uses more than 5 trillion gallons of water per year, extracting copper from the Tonto National Forest east of Miami, Arizona, and consequently reducing subflow of Pinto Creek — home to at least two species of endangered birds, including the yellow-billed cuckoo.The agency’s analysis of potential adverse effects, conducted by the third-party SRK consulting, excluded more than 90% of the creek, considering only an area in which the underground water table was likely to be reduced by at least five feet.In a 113-page opinion, Lanza said the decision was arbitrary and capricious, violating the Endangered Species Act.“The 5-foot groundwater drawdown contour cannot possibly encompass the full ESA ‘action area’ given SRK’s express acknowledgement that the baseflow effects of the action would extend, at a minimum, to the Magma Weir, which falls outside the 5-foot drawdown contour,” Lanza wrote, referring to the agency’s streamflow gauge at Magma Weir.The Forest Service acknowledges that streamflow has reduced over the years, but both it and the mining company argued that the reduction is not a result of changes in mining activity but rather is a result of natural causes like drought.Because changes in groundwater levels of fewer than five feet are often difficult to distinguish from natural, seasonal fluctuations, the Forest Service insisted that it need not analyze effects not certain to have been caused by the mine’ actions.In his ruling, Lanza wrote that the agency’s chosen action area must include “all areas to be affected directly or indirectly by the federal action.”“The language cited by the federal defendants only explains why groundwater drawdown outside the 5-foot drawdown contour could not be reasonably attributed to the pumping at Peak Well field,” he wrote. “It does not explain why areas downstream of that 5-foot drawdown contour would not experience baseflow reduction caused by that pumping-induced groundwater drawdown.”The Sierra Club also argued that the 2021 final environmental impact statement approving the mine’s expansion was insufficient under the act because it lacked specific mitigation measures, but Lanza rejected that claim.Because the U.S. Fish and Wildlife Service didn’t rely on potential mitigation measures to determine that the project was unlikely to negatively affect the yellow-billed cuckoo, the Forest Service argued that no consideration of mitigation measures was necessary in the impact statement.Lanza agreed.Adverse effects to listed species do not directly violate the Endangered Species Act unless they specifically reduce the species’ survival and recovery changes or diminish the value of its critical habitat.The agencies relied on the fact that the proposed action will affect less than 5% of the protected habitat for yellow billed cuckoos in the Tonto Basin and less than 0.06% of the total protected habitat across the United States.“The court agrees with the federal defendants and Pinto Valley Mining Company that Fish and Wildlife did not rely on any mitigation measures when determining ‘that the action, as proposed, is not likely to jeopardize the continued existence of the cuckoo, and is not likely to destroy or adversely modify proposed critical habitat,’” Lanza wrote. “Thus, any ESA claim premised on the alleged insufficiency of the mitigation measures necessarily fails.”Lanza also sided with the agency on the Sierra Club’s National Environmental Policy Act claim.The Sierra Club argued that NEPA requires mitigation measures of both direct and indirect effects of actions approved by the agency decision.Here, the wells used to fuel mining operations are on private land, meaning the pumping of those wells is a separate action. NEPA does not require the agency to analyze the effects of a related but geographically separate project not expressly approved by the agency action.“Here, the downstream effects of Pinto Valley Mining Company’s pumping are indirect effects,” Lanza wrote. “But it’s not clear they are effects ‘of the project at issue’ — i.e., approval of the mining plan of operations. The mining plan of operations does not approve or deny the mine’s pumping activities on private land.“Thus, Pinto Valley Mining Company is correct that ‘plaintiffs erroneously treat Pinto Valley Mining Company’s groundwater withdrawals as if they were the proposed federal action,’” Lanza added.Neither side immediately responded to requests for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads