IBLA Cases Addressing a “Hard Look”
Last Page Update: July 29, 2010
Cases are divided on this page by wins and losses:
NEPA requires that the BLM take a “hard look” at potential environmental impacts and reasonable alternatives to proposed actions. It does not direct an agency to elevate environmental concerns above other considerations. Rather, it requires that the agency take a hard look at the environmental consequences of a proposed action and reasonable alternatives thereto before making the decision.
The IBLA has stated that it will ordinarily uphold a BLM determination that a proposed project or plan, with appropriate mitigation measures, will not have a significant impact on the quality of the human environment if the record establishes that a careful review of environmental problems has been made, all relevant environmental concerns have been identified, and the final determination is reasonable.
It is useful to consider a proper “hard look” analysis to meet the following criteria:
- Assumptions spelled out,
- inconsistencies explained,
- methodologies disclosed,
- contradictory evidence rebutted,
- records referenced,
- analysis solidly grounded in science,
- guesswork eliminated, and
- conclusions supported in a manner capable of judicial understanding.
NOTE: Full text of all cases can be found on the Department of Interior ISYS System, located at http://www.oha.doi.gov:8080/index.html.
BIODIVERSITY CONSERVATION ALLIANCE
IBLA 2004-42, Decided August 2, 2006, Affirmed.
When an agency prepares an EA to determine whether an EIS is necessary, it must consider all relevant matters of environmental concern and take a hard look at potential environmental impacts so that it can make an informed decision about whether the environmental impacts are significant or that significant impacts can be reduced to insignificance by mitigation measures.
The Board held that BLM took a hard look, stating that BLM did not need to expand the scope of the project to include final decisions on site location, particularly when such decisions would be predictably inaccurate. The court stated that the scope of analysis of environmental consequences in the EIS must be appropriate to the action in question (Kern). The Board found that BLM’s explanation that it would tier specific site NEPA review to the FEIS was appropriate.
IBLA 2000-273, Decided July 16, 2003, Affirmed.
Pequop Project EA, Elko FO, May 2000
BLM’s approval of a mining plan of operations based on an EA and FONSI will be affirmed if the record establishes that BLM took a "hard look" at the proposed action,
carefully reviewed environmental problems, identified all relevant areas of environmental concern, and made a convincing case that the environmental impacts are insignificant or that any such impact will be reduced to insignificance by the adoption of appropriate mitigation measures. A party challenging BLM’s decision has the burden of demonstrating with objective proof that the decision is premised on a clear error of law or demonstrable error of fact, or that the analysis failed to consider a substantial environmental question of material significance to the proposed action. Mere differences of opinion provide no basis for reversal.
GBMW’s challenge to the adequacy of the EA and FONSI rests on its claim that BLM failed to identify and consider the resources acquired through the Big Springs Ranch land exchange, specifically roadless, recreation, and wilderness resources and potential ACECs. The evidence in the record refutes this contention. […] It proceeds to identify and discuss the affected environment within the entire project area as a whole, including lands (status and land use, mineral exploration and development and access), soils, air quality, water resources, biological resources (vegetation and wildlife), threatened, endangered, candidate, and BLM sensitive species (vegetation and wildlife), invasive and nonnative species, cultural resources, Native American religious concerns, visual resources, auditory resources, range resources, socioeconomics, paleontology, and recreation. […] The EA also analyzed the project’s impacts on the identified resources; cumulative impacts of the project and other past, present, and reasonably foreseeable future activities including mining and exploration, Christmas tree harvesting, hunting, pine nut harvesting, and range and grazing activities; and mitigation measures for wildlife and cultural resources. BLM fully and thoroughly identified and evaluated the resources in the entire project area including those within the acquired lands. GBMW has not shown error in BLM’s analysis of the project’s impacts on those resources. Rather, GBMW’s assertions regarding the roadless nature of the area appear to be disagreements with the characterization in the EA, lacking any foundation.
WESTERN EXPLORATION INC. & DOBY GEORGE LLC
IBLA 2004-134, Decided August 23, 2006, Affirmed.
Glamis Marigold Mining Company/Marigold Mine Millennium Expansion Project FEIS, Winnemucca FO, February 2004
An EIS prepared to evaluate the environmental impacts of a modification of a mining plan of operations complies with section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. § 4332(2)(C) (2000), when it shows that BLM has taken a “hard look” at potential environmental consequences of the proposed action and reasonable alternatives thereto, considering relevant matters of environmental concern. To successfully challenge a decision based on an EIS, an appellant must demonstrate by a preponderance of the evidence and with objective proof that BLM failed adequately to consider a substantial environmental question of material significance to the proposed action, or otherwise failed to abide by section 102(2) of NEPA.
The record reveals a deliberate, diligent, and detailed analysis of the complicated issues raised by the Expansion Project. BLM engaged in a scoping process whereby hundreds of interested parties were consulted. In response to legal requirements imposed by federal and State agencies including BLM and NDEP, GMMC prepared or commissioned and considered numerous studies for the purpose of preparing the Draft SEIS. […] Development of the Draft SEIS consumed months during which the record reflects regular meetings and communications among project participants. Meeting minutes reflect a serious and professional approach towards answering questions surrounding the project.
BLM responded in detail to the points raised by WEDG in its comment letter on these topics and specifically considered the potential impacts of authorizing the placement of heap leach processing facilities and waste rock storage areas in the vicinity of Trout Creek and WEDG’s private lands. BLM provided for constructing berms along the edge of Waste Rock Storage Areas, in order to prevent migration of leachate from the storage areas into the creek; covering the storage areas with a minimum of 6 inches of cover, in order to promote vegetative growth and thus eliminate or substantially reduce the infiltration of meteoric water into the waste rock; and periodically monitoring the storage areas and remedying any adverse effects to surface or ground water attributable to any seepage from such areas during the course of ongoing mining and ore processing operations. It provided for locating heap leach processing facilities situated near WEDG’s private land 200 and 100 feet from the property line; constructing berms along the edge of heap facilities; converting existing processing ponds into evapotranspiration basins in order to contain drainage water and its constituents, leaving the reclaimed ore within the existing lined containment system; and increasing the minimum growth medium cover to 24 inches. BLM required periodic monitoring of heap leach processing facilities and remedying any adverse effects to surface or ground water attributable to any leakage from such facilities during the course of ongoing mining and ore processing operations. BLM provided for future establishment of a Trust Fund, under 43 CFR 3809.552(c), to address post-reclamation issues.
The complaints raised by WEDG reflect disagreements rather than a lack of
consideration by BLM.
SAVE MEDICINE LAKE COALITION
IBLA 2000-294, et al. Decided February 7, 2002, Affirmed in part, vacated in part.
A BLM decision to approve a plan of operations for developing geothermal resources will be affirmed where BLM has prepared an environmental impact statement taking a hard look at the significant environmental consequences of constructing and operating production and injection wells, a power plant, a transmission line, pipelines, and related facilities, and reasonable alternatives thereto, and where the appellant has failed to carry its burden to demonstrate that BLM failed to adequately consider the impacts on air, surface and groundwater, historic properties, Native American traditional uses and values, and other resources and values, or otherwise failed to abide by NEPA.
Disposition (focusing on visual impacts)
BLM undertook a comprehensive visual impact assessment which incorporated an analysis of the impacts at 21 Key Observation Points (KOP) surrounding the Project area, which were intended to provide the "full range of typical public views of the proposed action and associated visual impacts that may occur with [P]roject implementation." (FEIS I at 3-133; see id. at 3-132 to 3-140, 3-143 to 3-147, 4-135 to 4-179; FEIS III at
3-401 to 3-408.) These KOP's included sites located along the Modoc Volcanic Scenic Byway and within the Mount Hoffman RRA. (FEIS I at 3-134 to 3-135, 3-137, 3-151.) Based on this assessment, BLM determined that visual resources of the Modoc Volcanic Scenic Byway and Mount Hoffman RRA would not, given mitigation measures (including minimizing vegetation clearing), be significantly adversely affected by the transmission line, cleared right-of-way, and related activity occurring along the route
selected by the Field Manager in his May 2000 ROD. (FEIS I at 4-135 to 4-179, 5-33 to 5-35; ROD at 6, 12-13, 17-18.)
BLM also undertook a comprehensive analysis of the visual impacts of proposed drilling rigs and power plant facilities, as well as their associated steam plumes, noise, and night-time lighting, on members of the public who might be present in the surrounding Medicine Lake Highlands. (FEIS I at 4-135 to 4-170, 4-254 to 4-267; FEIS III at 3-392 to 3-399, 3-592 to 3-607.) It concluded that significant adverse visual impacts would generally be mitigated to insignificance. (FEIS I at 4-140, 4-144 to 4-170; ROD at 17-18.) BLM recognized, however, that significant unavoidable impacts would remain in the form of steam plumes visible from the shoreline of Medicine Lake (and elsewhere in the Highlands), which would be associated both with well venting occurring during the time each of the production wells is flow-tested following drilling, and also with operation of the power plant cooling tower, which would occur throughout the life of the Project. (FEIS I at 4-161.)
In addition, BLM assessed the visual impacts of Project activities on Native American traditional cultural values in the surrounding Medicine Lake Highlands. (FEIS I at 4-63 to 4-81; FEIS III at 3-269 to 3-270; MOA at Table 2.) It focused on identified traditional-use sites considered potentially eligible for designation as a "Traditional Cultural Property" (TCP) under the National Register. 15/ BLM noted that topographic features are expected to screen the well field and power plant from most of the sites. (FEIS I at 4-72.) The well field would be screened; only night lighting from three sites and steam plumes associated with well venting from five sites (occurring during the construction phase of the Project) would be visible.
SOUTHERN UTAH WILDERNESS ALLIANCE, ET AL.
IBLA 2002-340, etc., Decided July 12, 2005, Set aside and remanded.
New Wide Hollow Reservoir EA, Grand Staircase Escalante NM, October 2002
The reasonableness of a FONSI will be upheld if the record establishes that BLM took a hard look” at the proposed action, carefully reviewed environmental problems, identified all relevant areas of environmental concern, and made a convincing case that the environmental impacts are insignificant or that any such impacts will be reduced to insignificance by the adoption of appropriate mitigation measures. A party challenging BLM’s decision has the burden of demonstrating with objective proof that the decision is premised on a clear error of law or demonstrable error of fact, or that the analysis failed to consider a substantial environmental question of material significance to the proposed action. Where a FONSI is based on mitigation measures designed to minimize acknowledged adverse environmental impacts, analysis of the proposed mitigation measures and how effective they would be in eliminating those impacts is required. A mitigation plan must be sufficiently developed and explained to provide a convincing case that significant environmental impacts will be reduced to insignificance. A FONSI will be set aside where an appellant has shown that the proposed actions will have a significant impact to riparian resources and that BLM has failed to demonstrate that the proposed mitigation measures will reduce those impacts to insignificance.
BLM did not take the requisite hard look at the project’s potentially significant impacts to riparian areas and failed to convincingly demonstrate that the incorporated mitigation measures would reduce those impacts to insignificance. Accordingly, we conclude that BLM’s decision to approve the preferred alternative was not reasonable given the record before it and set aside the DR/FONSI and the right-of-way grant issued
pursuant to that decision.
Several key factors underlie our decision. BLM does not dispute the importance of riparian areas and their resources; to the contrary, the EA expressly acknowledges that BLM has established national goals and objectives for managing riparian resources on public lands to ensure that riparian-wetland areas are functioning properly in order to provide the widest variety of vegetation and habitat diversity. See EA at 19; see also Riparian Policy, IM UT 93-93 (SUWA SOR, Ex. 7). The acknowledged value of these resources and the stated policy objective of maintaining or improving riparian areas to proper functioning condition provide the framework for our analysis of the issues raised in the appeals before us. Although BLM maintains that it properly calculated the bypass flow amounts necessary to meet riparian goals and objectives, we disagree. BLM has failed to offer persuasive evidence supporting its decision to base riparian vegetation consumptive use requirements on calibrated crop coefficients for irrigated crops in Utah and has provided no rationale at all for its computation of the purportedly appropriate
adjustment factors or its application of different adjustments to each creek. BLM also has not explained its decision to ignore the natural flow regime in setting the bypass amount for Birch Creek, an omission especially glaring given the EA’s emphasis on the importance of mimicking the natural hydrograph. See EA at 34. Nor does BLM justify why, contrary to the EA’s explicit statement that BLM’s senior hydrogeologist identified 0.37 cfs as an adequate maintenance flow to retain water table depth in the mesoriparian zone (EA at 34), it established 0.25 cfs as the year-round bypass flow amount for Birch Creek. See EA at 18. These defects fatally undermine the reasonableness of BLM’s bypass flow calculations, a conclusion bolstered by BLM’s own admissions that the diversion of flows in Birch Creek during the growing season would result in the creek remaining in at-risk condition or deteriorating to nonfunctioning condition and that, during below-average precipitation periods, the diversion in North Creek would jeopardize the maintenance of that creek’s existing riparian condition. See EA at 30, 32; BLM Answer at 21, 22 .
Those admissions also unequivocally undercut BLM’s claim that the project would not have significant impacts on the quality of the human environment. The questions raised about the project’s impacts on riparian and other resources in the FWS and NPS comment letters and in Dr. Ohmart’s declaration cast additional doubt on the validity of BLM’s FONSI. See, e.g., SUWA SOR, Exs. 8, 10, 11, and 12. An appellant is not required to show that significant effects will, in fact, occur; rather the standard is whether the appellant “has alleged facts which, if true, show that a proposed project may significantly degrade some human environmental factor.” Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 597 (9th Cir. 1980) (emphasis in original), quoted in Foundation for North American Wild Sheep v. United State, 681 F.2d 1172, 1178 (9th Cir. 1982). Appellants have met that burden in this case.
WYOMING OUTDOOR COUNCIL (ON RECONSIDERATION)
IBLA 2000-241R, Decided October 15, 2002, Petition for reconsideration denied; motion to dismiss denied as moot.
The Board of Land Appeals has the authority under 43 CFR 4.403 to grant a petition for reconsideration in extraordinary circumstances for sufficient reason. A petition for reconsideration filed by BLM seeking to have the Board reconsider its determination that the agency failed to take the requisite hard look at the environmental consequences of coalbed methane extraction and development and relevant leasing alternatives before deciding to offer three parcels of land for oil and gas leasing will be denied when BLM fails to satisfy the requirements of 43 CFR 4.403.
BLM fails to appreciate the importance of the analysis of the available leasing alternatives in the pre-leasing decionmaking process. While BLM characterizes our focus on the examination of leasing alternatives as elevating form over substance, NEPA's focus is on "form" rather than "substance." NEPA is in essence a procedural statute. It does not direct an agency to elevate environmental concerns above other considerations. Rather, it requires that the agency take a hard look at the environmental consequences of a proposed action and reasonable alternatives thereto before approving the action. Southwest Center for Biological Diversity, 154 IBLA 231, 236-37 (2001); Colorado Environmental Commission, 142 IBLA 49, 52 (1997), and cases cited. See also Park County, 817 F.2d at 620. Since neither the Wyodak Final EIS nor the DNAs, which relied on the Wyodak Draft EIS, addressed the relevant leasing alternatives in light of the unique impacts of CBM activities examined in the EIS, we must adhere to our conclusion
that those documents were inadequate to constitute the requisite hard look for the challenged leasing decision.
The Board stated that the issue in the case was not whether BLM was required to evaluate the impacts of development in the EIS before issuing the challenged leases, it was rather whether the existing NEPA documents were sufficient in light of the probable use of the parcels for CBM development. The Board had previously concluded that there were significant omissions in EISs relied upon, as they failed to mention or independently address the relevant areas of environmental concern or reasonable alternatives. The court reaffirmed that BLM’s existing NEPA analysis did not take a hard look at the environmental consequences of the proposed leasing.