In Great Basin Resource Watch v. Bureau of Land Management, the Ninth Circuit invalidated the BLM’s environmental review, finding that the agency based its approval of a mining project on unsupported reasoning, inaccurate information, and deficient analysis. In negating the action, the court held that the BLM failed to take the hard look required by the National Environmental Policy Act

Lowenstein, Jody D

English

University of Montana

Public Land & Resources Law Review Volume 0 Case Summaries 2016-2017 Article 20 March 2017 Great Basin Resource Watch v. Bureau of Land Management Jody D. Lowenstein Alexander Blewett III School of Law at the University of Montana, jody.lowenstein@umontana.edu Follow this and additional works at: https://scholarworks.umt.edu/plrlr  Part of the Administrative Law Commons, Environmental Law Commons, and the Natural Resources Law Commons Let us know how access to this document benefits you. Recommended Citation Lowenstein, Jody D. (2017) "Great Basin Resource Watch v. Bureau of Land Management," Public Land & Resources Law Review: Vol. 0 , Article 20. Available at: https://scholarworks.umt.edu/plrlr/vol0/iss7/20 This Case Summary is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Public Land & Resources Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. Great Basin Resource Watch v. Bureau of Land Management, 844 F.3d 1095 (9th Cir. 2016)  Jody Lowenstein   In Great Basin Resource Watch v. Bureau of Land Management, the Ninth Circuit invalidated the BLM’s environmental review, finding that the agency based its approval of a mining project on unsupported reasoning, inaccurate information, and deficient analysis. In negating the action, the court held that the BLM failed to take the hard look required by the National Environmental Policy Act.   I. INTRODUCTION  Great Basin Resource Watch and the Western Shoshone Defense Project (collectively “Plaintiffs”) challenged the United States Bureau of Land Management’s (“BLM”) environmental review of a proposed open-pit molybdenum mine project in Eureka County, Nevada in Great Basin Resource Watch v. Bureau of Land Management.1 In arguing that the BLM’s approval of the project violated the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the executive order Public Water Reserve No. 107 (“PWR 107”), the Plaintiffs claimed that the agency’s environmental review was impermissibly deficient in several respects, including basing its analyses on unreasonable baseline levels and a dearth of information.2 The United States District Court for the District of Nevada granted summary judgment in favor of the BLM, finding that its environmental review was sufficient.3 The United States Court of Appeals for the Ninth Circuit reversed in part, holding that the BLM’s environmental review incorporated deficient air impact and cumulative impact analyses.4   II. FACTUAL AND PROCEDURAL BACKGROUND  The Mt. Hope Project (“Project”) is a proposed open-pit molybdenum mine operated by Eureka Moly, LLC (“Eureka Moly”) prospectively located twenty-three miles north of Eureka, Nevada on a tract primarily administered by the BLM.5 The Project provided for “‘an 18- to 24-month construction phase, 44 years of mining and ore processing, 30 years of reclamation, and five years of post-closure monitoring.’”6 Pertinently, the Project incorporated a pumped ground                                                  1  Great Basin Resource Watch v. Bureau of Land Management, 844 F.3d 1095, 1099 (9th Cir. 2016).  2  Id. 3  Id. at 1101.  4  Id. at 1111-12.  5  Id. at 1099.  6  Id. 2 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 water process “to provide fresh water for various mining and ore extraction purposes.”7 Furthermore, the Project proposed to fill the pit “with ground water, forming a mine-pit lake.”8 In June 2006, Eureka Moly filed the Project with the BLM.9 After determining that the Project was a major Federal action, the BLM undertook its obligation under NEPA to prepare an Environmental Impact Statement (“EIS”).10 The BLM released its Draft EIS in December 2011, and after a year of public comment, promulgated its Final EIS and Record of Decision approving the Project.11 After denial of their petition for review of the Record of Decision, the Plaintiffs challenged the BLM’s environmental review in the United States District Court for the District of Nevada, asserting that approval of the Project violated NEPA, FLPMA, and PWR 107.12 The district court granted Eureka Moly intervenor status, and subsequently granted the defendants' joint motion for summary judgment.13 As a result, the Plaintiffs appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit.14  III. ANALYSIS  The Ninth Circuit addressed five independent grounds upon which the Plaintiffs challenged the BLM’s environmental review under the Administrative Procedures Act’s “arbitrary or capricious” standard.15 First, the Plaintiffs asserted that the BLM based its air impact analysis upon unreasonable baseline levels for certain air pollutants.16 Second, the Plaintiffs argued that the BLM failed to conduct a sufficient analysis of the Project’s cumulative environmental impacts.17 Lastly, the Plaintiffs contended that the BLM’s consideration of three separate mitigation measures was inadequate.18  Additionally, the Ninth Circuit refused to address the Plaintiffs' FLPMA and PWR 107 claims on the grounds that “the BLM should be given an opportunity to fix the errors in its analysis of the Project under NEPA before challenges to the approval of the Project itself are entertained.”19 The court reasoned that the problems with the Project's approval itself “may never arise once the BLM has had a chance to see the                                                  7  Id. at 1099-100. 8  Id. at 1099.  9  Id. at 1100.  10  Id. 11  Id. 12  Id. 13  Id. 14  Id. 15  Id. at 1101.  16  Id. 17  Id. 18  Id. 19  Id. at 1111. 2017 GREAT BASIN RESOURCE WATCH 3 choices before it with fresh eyes,”20 and that it would be imprudent to address “legal questions that may end up being irrelevant to the disposition of the claim.”21  A. Air Pollution Baselines  The court first addressed the Plaintiffs' argument that the BLM incorporated unreasonable baseline levels in its air impact analysis.22 The court asserted that although setting “appropriate baseline [levels] is critical to any NEPA analysis,” measuring actual baseline conditions is not required.23 Rather, the court claimed, an agency may estimate baseline levels “using data from a similar area”24 if the assessment is “‘based on accurate information and defensible reasoning.’”25 The Plaintiffs first challenged the BLM’s estimation of baseline levels for four different pollutants at the Project site based on data from Great Basin National Park,26 a “pristine area more than 100 miles away from the Project’s [location].”27  The court found that although this data “may have caused the agency to underestimate the [actual] baselines for the Project area,”28 the Plaintiffs failed to show that the BLM’s estimate “rested on inaccurate information or indefensible reasoning.”29 Therefore, the court held, the BLM’s baseline levels for these four pollutants complied with NEPA despite the acknowledged shortcomings in the use of this data.30 However, the court concurred with the Plaintiffs’ contention  that “the BLM’s use of a zero baseline value for the remaining pollutants” was not premised on supported reasoning.31  The court reasoned that the BLM supported its use of a zero baseline value for the remaining group of pollutants solely on an “opinion from an expert within the BLM,” which did not explain how or why the zero value was a reasonable baseline for those pollutants.32 The court found it impermissible that the BLM failed to either separately clarify why a zero-baseline estimate was appropriate, or                                                  20   Id. 21  Id. 22  Id. at 1101. 23  Id. 24  Id. 25  Id. (quoting Or. Natural Desert Ass’n v. Jewell, 840 F.3d 562, 570 (9th Cir. 2016)). 26  Id. at 1102 (outlining that the four pollutants measured at Great Basin National Park were 2.5-micron particulate matter, 10-micron particulate matter, and the “two longest time-averaged sulfur dioxide concentrations.”).  27  Id. 28  Id. 29  Id. 30  Id. 31  Id. 32  Id. 1103 (emphasis in original). 4 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 to independently scrutinize the expert opinion.33 Additionally, the court found the BLM’s argument that an existing post-EIS analysis confirming that the Project’s pollution would not ultimately violate air quality standards to be unavailing.34 A post-EIS analysis, the court asserted, cannot cure deficiencies in an environmental review since the public would be precluded from “‘play[ing] a role’” in the decisionmaking process.35 In sum, since the BLM failed to provide “accurate information and defensible reasoning” for its decision to establish a zero-baseline value for the remaining pollutants in its Final EIS, the court held that the BLM’s air impact analysis violated NEPA.36   B. Cumulative Effects  The court next considered the Plaintiffs’ assertion that the BLM conducted a deficient analysis of the Project’s cumulative impacts.37 An adequate cumulative impact analysis, the court clarified, requires that an agency provide quantified or detailed information regarding an action’s incremental environmental impact “‘when added to other past, present, and reasonably foreseeable future actions.’”38 Although it affirmed that the BLM provided a thoroughly sufficient discussion of the Project’s “cumulative impacts to water quantity,” the court found the agency’s cumulative air impact analysis insufficient.39 The court highlighted that the BLM failed to discuss or quantify the Project’s impacts in addition to other activities potentially affecting air resources, such as a nearby mine, local vehicle emissions, and oil and gas development in the area.40 The court reasoned that not only did the BLM’s unreasonable zero-baseline level for certain pollutants render its cumulative air impact analysis deficient, but the modicum of information the agency provided rendered the Final EIS noncompliant with NEPA’s requirements.41     C. Mitigation Measures  The court then turned to the Plaintiffs’ claim that the BLM, in contravention of NEPA’s requirements, failed to consider appropriate mitigation measures “aimed at reducing the possible adverse environmental effects” of poor water quality from the Project’s prospective pit-lake.42 The BLM, the court described, took a “‘wait and                                                  33  Id. at 1103. 34  Id. at 1104. 35  Id. 36  Id. 37  Id. 38  Id. (quoting 40 C.F.R. § 1508.7 (2017)). 39  Id. at 1104-05. 40  Id. at 1105. 41  Id. at 1005-06. 42  Id. at 1106. 2017 GREAT BASIN RESOURCE WATCH 5 see’ approach,” limiting its discussion of appropriate mitigation measures to certain monitoring procedures.43 The court noted that “[p]utting off an analysis of possible mitigation measures until after a project has been approved, and after adverse environmental impacts have started to occur, runs counter to NEPA’s goal of ensuring informed agency decisionmaking.”44 However, due to the “relatively low probability and temporal remoteness of adverse impacts to ground water” that could result from the pit-lake, the court found that the reliance on monitoring procedures to mitigate future environmental impacts was reasonable under the circumstances, and therefore was in accord with NEPA’s requirements.45 The Plaintiffs also argued that the BLM’s environmental review failed to include discussion of a long-term funding mechanism and a reclamation bond, which deprived the agency from adequately assessing appropriate mitigation measures for the Project.46 In addressing this argument, the court decided not to consider the BLM’s retort that “reclamation bonding need never be discussed in NEPA documents.”47 Rather, the court assumed that “long-term mitigation and reclamation funding issues must be ‘discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.’”48 Although the court considered the BLM’s discussion of the long-term funding mechanism and the reclamation bond to be relatively sparse, it determined that the agency’s discussion of those issues was “not so deficient as to preclude the agency or the public” from properly evaluating the Project’s adverse environmental effects.49 The court highlighted that the Final EIS outlined multiple mitigation measures that would be funded by the long-term funding mechanism, the annual review of funding needs for mitigation measures, and plans to update the reclamation bond every three years to reflect the Project’s reclamation guarantee.50 Therefore, the court held, the BLM adequately assessed the requisite funding issues under NEPA.51 Lastly, the court declined to reach the merits of the Plaintiffs’ claim that “the BLM’s discussion of mitigation measures [addressing] impacts to surface and ground water quantity” was inadequate, even though the court determined those impacts were “potentially significant.”52 Although the court found that the BLM’s analysis failed to consider the full amount of ground water “needed to replace depleted                                                  43  Id. at 1107. 44  Id. 45  Id. 46  Id. at 1107-08. 47  Id. at 1108-09 (emphasis in original). 48  Id. at 1109 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989)). 49  Id. at 1109-10.  50  Id. at 1109. 51  Id. 52  Id. at 1110-11. 6 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 spring and stream water” used in the mining process, this error was quite small and potentially harmless.53 Since neither party addressed the issue of harmlessness, and because of other deficiencies in the BLM’s environmental review, the court refused to rule on this issue.54   IV. CONCLUSION  The outcome of Great Basin Resource Watch v. Bureau of Land Management reinforces the notion that any impermissible deficiency in an agency’s environmental review cannot withstand even the most rote challenges under NEPA. Here, the Ninth Circuit found that the BLM’s failure to take the requisite hard look required by NEPA resulted in multiple impermissible deficiencies in its environmental review. The court concluded that the BLM’s air impact analysis was premised on an unsupportable zero baseline level, and further determined that the paucity of information the agency offered to justify its cumulative air impact analysis violated NEPA’s requirements.                                                  53  Id. at 1110. 54  Id. at 1111. 

Great Basin Resource Watch v. Bureau of Land Management

University of Montana School of Law

Public Land and Resources Law Review
Volume 0 Case Summaries 2016-2017
Great Basin Resource Watch v. Bureau of Land
Management
Jody D. Lowenstein
Alexander Blewett III School of Law at the University of Montana, jody.lowenstein@umontana.edu
Follow this and additional works at: https://scholarship.law.umt.edu/plrlr
Part of the Administrative Law Commons, Environmental Law Commons, and the Natural
Resources Law Commons
This Case Summary is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Public
Land and Resources Law Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Lowenstein, Jody D. (2017) "Great Basin Resource Watch v. Bureau of Land Management," Public Land and Resources Law Review: Vol.
0 , Article 20.
Available at: https://scholarship.law.umt.edu/plrlr/vol0/iss7/20
Great Basin Resource Watch v. Bureau of Land Management, 844 
F.3d 1095 (9th Cir. 2016) 
 
Jody Lowenstein 
 
 In Great Basin Resource Watch v. Bureau of Land Management, 
the Ninth Circuit invalidated the BLM’s environmental review, finding 
that the agency based its approval of a mining project on unsupported 
reasoning, inaccurate information, and deficient analysis. In negating the 
action, the court held that the BLM failed to take the hard look required 
by the National Environmental Policy Act.  
 
I. INTRODUCTION 
 
Great Basin Resource Watch and the Western Shoshone Defense 
Project (collectively “Plaintiffs”) challenged the United States Bureau of 
Land Management’s (“BLM”) environmental review of a proposed open-
pit molybdenum mine project in Eureka County, Nevada in Great Basin 
Resource Watch v. Bureau of Land Management.1 In arguing that the 
BLM’s approval of the project violated the National Environmental Policy 
Act (“NEPA”), the Federal Land Policy and Management Act 
(“FLPMA”), and the executive order Public Water Reserve No. 107 
(“PWR 107”), the Plaintiffs claimed that the agency’s environmental 
review was impermissibly deficient in several respects, including basing 
its analyses on unreasonable baseline levels and a dearth of information.2 
The United States District Court for the District of Nevada granted 
summary judgment in favor of the BLM, finding that its environmental 
review was sufficient.3 The United States Court of Appeals for the Ninth 
Circuit reversed in part, holding that the BLM’s environmental review 
incorporated deficient air impact and cumulative impact analyses.4  
 
II. FACTUAL AND PROCEDURAL BACKGROUND 
 
The Mt. Hope Project (“Project”) is a proposed open-pit 
molybdenum mine operated by Eureka Moly, LLC (“Eureka Moly”) 
prospectively located twenty-three miles north of Eureka, Nevada on a 
tract primarily administered by the BLM.5 The Project provided for “‘an 
18- to 24-month construction phase, 44 years of mining and ore 
processing, 30 years of reclamation, and five years of post-closure 
monitoring.’”6 Pertinently, the Project incorporated a pumped ground 
                                                 
1  Great Basin Resource Watch v. Bureau of Land Management, 
844 F.3d 1095, 1099 (9th Cir. 2016).  
2  Id. 
3  Id. at 1101.  
4  Id. at 1111-12.  
5  Id. at 1099.  
6  Id. 
2 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
water process “to provide fresh water for various mining and ore extraction 
purposes.”7 Furthermore, the Project proposed to fill the pit “with ground 
water, forming a mine-pit lake.”8 
In June 2006, Eureka Moly filed the Project with the BLM.9 After 
determining that the Project was a major Federal action, the BLM 
undertook its obligation under NEPA to prepare an Environmental Impact 
Statement (“EIS”).10 The BLM released its Draft EIS in December 2011, 
and after a year of public comment, promulgated its Final EIS and Record 
of Decision approving the Project.11 
After denial of their petition for review of the Record of Decision, 
the Plaintiffs challenged the BLM’s environmental review in the United 
States District Court for the District of Nevada, asserting that approval of 
the Project violated NEPA, FLPMA, and PWR 107.12 The district court 
granted Eureka Moly intervenor status, and subsequently granted the 
defendants' joint motion for summary judgment.13 As a result, the 
Plaintiffs appealed the district court's decision to the United States Court 
of Appeals for the Ninth Circuit.14 
 
III. ANALYSIS 
 
The Ninth Circuit addressed five independent grounds upon which 
the Plaintiffs challenged the BLM’s environmental review under the 
Administrative Procedures Act’s “arbitrary or capricious” standard.15 
First, the Plaintiffs asserted that the BLM based its air impact analysis 
upon unreasonable baseline levels for certain air pollutants.16 Second, the 
Plaintiffs argued that the BLM failed to conduct a sufficient analysis of 
the Project’s cumulative environmental impacts.17 Lastly, the Plaintiffs 
contended that the BLM’s consideration of three separate mitigation 
measures was inadequate.18  
Additionally, the Ninth Circuit refused to address the Plaintiffs' 
FLPMA and PWR 107 claims on the grounds that “the BLM should be 
given an opportunity to fix the errors in its analysis of the Project under 
NEPA before challenges to the approval of the Project itself are 
entertained.”19 The court reasoned that the problems with the Project's 
approval itself “may never arise once the BLM has had a chance to see the 
                                                 
7  Id. at 1099-100. 
8  Id. at 1099.  
9  Id. at 1100.  
10  Id. 
11  Id. 
12  Id. 
13  Id. 
14  Id. 
15  Id. at 1101.  
16  Id. 
17  Id. 
18  Id. 
19  Id. at 1111. 
2017 GREAT BASIN RESOURCE WATCH 3 
choices before it with fresh eyes,”20 and that it would be imprudent to 
address “legal questions that may end up being irrelevant to the disposition 
of the claim.”21 
 
A. Air Pollution Baselines 
 
The court first addressed the Plaintiffs' argument that the BLM 
incorporated unreasonable baseline levels in its air impact analysis.22 The 
court asserted that although setting “appropriate baseline [levels] is critical 
to any NEPA analysis,” measuring actual baseline conditions is not 
required.23 Rather, the court claimed, an agency may estimate baseline 
levels “using data from a similar area”24 if the assessment is “‘based on 
accurate information and defensible reasoning.’”25 
The Plaintiffs first challenged the BLM’s estimation of baseline 
levels for four different pollutants at the Project site based on data from 
Great Basin National Park,26 a “pristine area more than 100 miles away 
from the Project’s [location].”27  The court found that although this data 
“may have caused the agency to underestimate the [actual] baselines for 
the Project area,”28 the Plaintiffs failed to show that the BLM’s estimate 
“rested on inaccurate information or indefensible reasoning.”29 Therefore, 
the court held, the BLM’s baseline levels for these four pollutants 
complied with NEPA despite the acknowledged shortcomings in the use 
of this data.30 
However, the court concurred with the Plaintiffs’ contention  that 
“the BLM’s use of a zero baseline value for the remaining pollutants” was 
not premised on supported reasoning.31  The court reasoned that the BLM 
supported its use of a zero baseline value for the remaining group of 
pollutants solely on an “opinion from an expert within the BLM,” which 
did not explain how or why the zero value was a reasonable baseline for 
those pollutants.32 The court found it impermissible that the BLM failed to 
either separately clarify why a zero-baseline estimate was appropriate, or 
                                                 
20   Id. 
21  Id. 
22  Id. at 1101. 
23  Id. 
24  Id. 
25  Id. (quoting Or. Natural Desert Ass’n v. Jewell, 840 F.3d 562, 570 
(9th Cir. 2016)). 
26  Id. at 1102 (outlining that the four pollutants measured at Great 
Basin National Park were 2.5-micron particulate matter, 10-micron particulate 
matter, and the “two longest time-averaged sulfur dioxide concentrations.”).  
27  Id. 
28  Id. 
29  Id. 
30  Id. 
31  Id. 
32  Id. 1103 (emphasis in original). 
4 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
to independently scrutinize the expert opinion.33 Additionally, the court 
found the BLM’s argument that an existing post-EIS analysis confirming 
that the Project’s pollution would not ultimately violate air quality 
standards to be unavailing.34 A post-EIS analysis, the court asserted, 
cannot cure deficiencies in an environmental review since the public 
would be precluded from “‘play[ing] a role’” in the decisionmaking 
process.35 In sum, since the BLM failed to provide “accurate information 
and defensible reasoning” for its decision to establish a zero-baseline value 
for the remaining pollutants in its Final EIS, the court held that the BLM’s 
air impact analysis violated NEPA.36  
 
B. Cumulative Effects 
 
The court next considered the Plaintiffs’ assertion that the BLM 
conducted a deficient analysis of the Project’s cumulative impacts.37 An 
adequate cumulative impact analysis, the court clarified, requires that an 
agency provide quantified or detailed information regarding an action’s 
incremental environmental impact “‘when added to other past, present, 
and reasonably foreseeable future actions.’”38 
Although it affirmed that the BLM provided a thoroughly 
sufficient discussion of the Project’s “cumulative impacts to water 
quantity,” the court found the agency’s cumulative air impact analysis 
insufficient.39 The court highlighted that the BLM failed to discuss or 
quantify the Project’s impacts in addition to other activities potentially 
affecting air resources, such as a nearby mine, local vehicle emissions, and 
oil and gas development in the area.40 The court reasoned that not only did 
the BLM’s unreasonable zero-baseline level for certain pollutants render 
its cumulative air impact analysis deficient, but the modicum of 
information the agency provided rendered the Final EIS noncompliant 
with NEPA’s requirements.41    
 
C. Mitigation Measures 
 
The court then turned to the Plaintiffs’ claim that the BLM, in 
contravention of NEPA’s requirements, failed to consider appropriate 
mitigation measures “aimed at reducing the possible adverse 
environmental effects” of poor water quality from the Project’s 
prospective pit-lake.42 The BLM, the court described, took a “‘wait and 
                                                 
33  Id. at 1103. 
34  Id. at 1104. 
35  Id. 
36  Id. 
37  Id. 
38  Id. (quoting 40 C.F.R. § 1508.7 (2017)). 
39  Id. at 1104-05. 
40  Id. at 1105. 
41  Id. at 1005-06. 
42  Id. at 1106. 
2017 GREAT BASIN RESOURCE WATCH 5 
see’ approach,” limiting its discussion of appropriate mitigation measures 
to certain monitoring procedures.43 The court noted that “[p]utting off an 
analysis of possible mitigation measures until after a project has been 
approved, and after adverse environmental impacts have started to occur, 
runs counter to NEPA’s goal of ensuring informed agency 
decisionmaking.”44 However, due to the “relatively low probability and 
temporal remoteness of adverse impacts to ground water” that could result 
from the pit-lake, the court found that the reliance on monitoring 
procedures to mitigate future environmental impacts was reasonable under 
the circumstances, and therefore was in accord with NEPA’s 
requirements.45 
The Plaintiffs also argued that the BLM’s environmental review 
failed to include discussion of a long-term funding mechanism and a 
reclamation bond, which deprived the agency from adequately assessing 
appropriate mitigation measures for the Project.46 In addressing this 
argument, the court decided not to consider the BLM’s retort that 
“reclamation bonding need never be discussed in NEPA documents.”47 
Rather, the court assumed that “long-term mitigation and reclamation 
funding issues must be ‘discussed in sufficient detail to ensure that 
environmental consequences have been fairly evaluated.’”48 Although the 
court considered the BLM’s discussion of the long-term funding 
mechanism and the reclamation bond to be relatively sparse, it determined 
that the agency’s discussion of those issues was “not so deficient as to 
preclude the agency or the public” from properly evaluating the Project’s 
adverse environmental effects.49 The court highlighted that the Final EIS 
outlined multiple mitigation measures that would be funded by the long-
term funding mechanism, the annual review of funding needs for 
mitigation measures, and plans to update the reclamation bond every three 
years to reflect the Project’s reclamation guarantee.50 Therefore, the court 
held, the BLM adequately assessed the requisite funding issues under 
NEPA.51 
Lastly, the court declined to reach the merits of the Plaintiffs’ 
claim that “the BLM’s discussion of mitigation measures [addressing] 
impacts to surface and ground water quantity” was inadequate, even 
though the court determined those impacts were “potentially 
significant.”52 Although the court found that the BLM’s analysis failed to 
consider the full amount of ground water “needed to replace depleted 
                                                 
43  Id. at 1107. 
44  Id. 
45  Id. 
46  Id. at 1107-08. 
47  Id. at 1108-09 (emphasis in original). 
48  Id. at 1109 (quoting Robertson v. Methow Valley Citizens 
Council, 490 U.S. 332, 352 (1989)). 
49  Id. at 1109-10.  
50  Id. at 1109. 
51  Id. 
52  Id. at 1110-11. 
6 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
spring and stream water” used in the mining process, this error was quite 
small and potentially harmless.53 Since neither party addressed the issue 
of harmlessness, and because of other deficiencies in the BLM’s 
environmental review, the court refused to rule on this issue.54  
 
IV. CONCLUSION 
 
The outcome of Great Basin Resource Watch v. Bureau of Land 
Management reinforces the notion that any impermissible deficiency in an 
agency’s environmental review cannot withstand even the most rote 
challenges under NEPA. Here, the Ninth Circuit found that the BLM’s 
failure to take the requisite hard look required by NEPA resulted in 
multiple impermissible deficiencies in its environmental review. The court 
concluded that the BLM’s air impact analysis was premised on an 
unsupportable zero baseline level, and further determined that the paucity 
of information the agency offered to justify its cumulative air impact 
analysis violated NEPA’s requirements. 
                                                 
53  Id. at 1110. 
54  Id. at 1111. 


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