ELR Citation: ELR 20094
No(s). 08-36018 (9th Cir. Apr 10, 2009)

The Ninth Circuit temporarily stayed the expansion of a phosphate mine located near the Idaho-Wyoming border. Environmental groups filed a motion to preliminarily enjoin the project, arguing that the U.S. Forest Service and the Bureau of Land Management violated the National Environmental Policy Act (NEPA), the Clean Water Act, and the National Forest Management Act. The lower court denied their motion, but in so doing it failed to consider preparatory actions related to the mine's expansion in its irreparable harm analysis under NEPA. These preliminary activities include the construction of a 100-foot-wide reinforced haul road, timber harvest at two sites, and topsoil stockpiling, which entails removing topsoil from the areas to be mined and storing it for later use. Because the lower court did not include these activities in its irreparable harm analysis, the Ninth Circuit vacated the order and remanded the case for the lower court to consider these effects in the first instance. The court also ordered that the preliminary activities be temporarily stayed until the lower court has had an opportunity to consider the remaining issues.