ELR Citation: ELR 20193
No(s). 07-16423 (9th Cir. Sep 14, 2009)

The Ninth Circuit held that BLM failed to take a "hard look" at the environmental consequences of a proposed land exchange between the agency and a mining company in violation of NEPA. The land exchange would transfer ownership of certain BLM property to a mining company, thereby allowing the company to conduct mining operations on the land without having to comply with the Mining Law of 1872. In its EIS, BLM assumed that the company would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Based on this assumption, BLM did not prepare a comparative analysis of the environmental consequences for the different alternatives proposed. Substantial evidence in the record, however, does not support BLM's assumption. By failing to provide a comparative analysis of the likely environmental consequences of the proposed land exchange, on the one hand, and the no action alternative, on the other, BLM violated NEPA. Similarly, BLM's conclusion in the record of decision that the proposed land exchange is in the "public interest" under FLPMA was arbitrary and capricious because it was also based on BLM's erroneous assumption.