Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 1 of 34
`
`Sarah Stellberg (Idaho Bar # 10538)
`Laurence J. (“Laird”) Lucas (Idaho Bar # 4733)
`Advocates for the West
`P.O. Box 1612
`Boise, Idaho 83701
`(208) 342-7024
`sstellberg@advocateswest.org
`llucas@advocateswest.org
`
`Ashley Bruner (Pro Hac Vice Pending)
`Center for Biological Diversity
`P.O. Box 1178
`Flagstaff, Arizona 86002
`(928) 666-0731
`abruner@biologicaldiversity.org
`
`Hannah Connor (Pro Hac Vice Pending)
`Center for Biological Diversity
`P.O. Box 2155
`St. Petersburg, FL 33731
`(202) 681-1676
`hconnor@biologicaldiversity.org
`
`Attorneys for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
`
`
`Case No. 1:21-cv-182
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`WESTERN WATERSHEDS PROJECT, and
`WILDEARTH GUARDIANS,
`
`Plaintiffs,
`
`
`
`
`v.
`
`
`UNITED STATES BUREAU OF LAND
`MANAGEMENT; MARY D’AVERSA, in
`her official capacity as District Manager for
`the Bureau of Land Management Idaho Falls
`District; UNITED STATES DEPARTMENT
`OF THE INTERIOR,
`
`
`Defendants.
`
`
`
`

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`Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 2 of 34
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`1.
`
`Plaintiffs Center for Biological Diversity (Center), Western Watersheds Project
`
` INTRODUCTION
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`(WWP), and WildEarth Guardians challenge the decision and analysis of the United States
`
`Department of Interior’s Bureau of Land Management (BLM) for the Caldwell Canyon Mine, an
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`open-pit phosphate mine proposed in Caribou County, Idaho. Relying on a May 2019 Final
`
`Environmental Impact Statement (FEIS), BLM signed a Record of Decision (ROD) approving
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`the Caldwell Canyon Mine on August 14, 2019. This action will allow P4 Production, LLC (P4),
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`a subsidiary of Bayer AG, to develop and mine approximately 1,559 acres of important,
`
`currently undeveloped land essential for sage-grouse and other species over more than 40 years
`
`for the purpose of producing the brand-name pesticide Roundup.
`
`2.
`
`Glyphosate dimethylammonium salt (glyphosate) is an herbicide manufactured by
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`German multinational pharmaceutical and life sciences company Bayer AG for use as the active
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`ingredient in “Roundup” brand herbicides. The World Health Organization’s cancer-research
`
`arm considers glyphosate a probable carcinogen, and the United States Environmental Protection
`
`Agency (EPA) recently determined that glyphosate is likely to adversely affect 93 percent of all
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`threatened and endangered species. Elemental phosphorus, which is necessary to manufacture
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`glyphosate, is produced using phosphate ore extracted from a phosphate mine—in this case the
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`Caldwell Canyon Mine—that is then processed—in this case at the Soda Springs Plant in Soda
`
`Springs, Idaho.
`
`3.
`
`This suit challenges BLM’s cursory analysis of the environmental impacts of that
`
`extraction and refinement process on public lands, wildlife, downstream waters, Tribal lands, and
`
`nearby communities for generations to come. BLM’s analysis in the FEIS and ROD violated the
`
`National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative
`
`Procedure Act (APA), 5 U.S.C. §§ 701–706, for several reasons.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`4.
`
`First, BLM failed to take a hard look at potential selenium pollution from the
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`Caldwell Canyon Mine. Selenium, which is toxic at high concentrations, has killed hundreds of
`
`livestock in southeast Idaho, and has caused deformities and other adverse effects in birds,
`
`aquatic animals, and other wildlife. As EPA identified in its comments to BLM on the Draft
`
`Environmental Impact Statement (DEIS), the mine will release dust contaminated with selenium
`
`into the ambient environment. Those dust particles are a concern because of the high likelihood
`
`that they will contaminate nearby lands and waters, including the Blackfoot River that runs at the
`
`feet of this mine and already exceeds state water quality standards for selenium. Yet, even with
`
`these significant pollution concerns, BLM did not adequately disclose how it analyzed fugitive
`
`dust emissions, how those emissions will impact the Blackfoot River, or whether there are
`
`alternatives to mitigate those emissions.
`
`5.
`
`Second, BLM failed to consider the cumulative effects of phosphate mining, and
`
`in particular, selenium contamination, in its environmental analysis. P4 will build the Caldwell
`
`Canyon Mine in an area that has already been impacted by decades of phosphate mining.
`
`Southeast Idaho is the second largest producer of phosphate in the United States. In total, at least
`
`30 phosphate mines have disturbed approximately 17,000 acres of land in this region since the
`
`early 20th century and have caused significant selenium contamination, both of surface water and
`
`groundwater. There are over 10 federal hazardous waste—or Superfund—sites in the area.
`
`Nonetheless, BLM prepared only a cursory analysis of the cumulative effects of the Caldwell
`
`Canyon Mine when combined with the impacts of other past, present, and future mining projects.
`
`6.
`
`Third, BLM entirely failed to consider the indirect effects from ore processing,
`
`including the potential for radioactive waste and ground water pollution. Ore from Caldwell
`
`Canyon will be processed at the Soda Springs Plant, which was listed as a Superfund site in
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 4 of 34
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`1990. Remediation efforts at the Soda Springs Plant, which are ongoing, have focused on
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`addressing soil contaminated with radionuclides and metals (arsenic and beryllium), and
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`groundwater contaminated with selenium, cadmium, sulfates, and fluorides—contamination that
`
`has left the property and impacted nearby surface water. Despite the fact that further
`
`deterioration of air, surface water, and ground water quality is reasonably foreseeable from
`
`processing phosphate ore at this Soda Springs Plant, BLM failed to analyze those impacts or use
`
`them to inform reasonable alternatives to this project.
`
`7.
`
`Fourth, BLM failed to take a hard look at the mine’s impact on Greater sage-
`
`grouse, an iconic western bird species whose population has plummeted rangewide in recent
`
`decades. Greater sage-grouse narrowly avoided listing pursuant to the Endangered Species Act
`
`(ESA) in 2010 and 2015, and despite federal commitments to improve protections for the bird,
`
`populations have only further declined since that time. The Caldwell Canyon Mine would impair
`
`roughly 1,000 acres of Greater sage-grouse habitat, including sensitive breeding and nesting
`
`grounds for the small and declining East Idaho Uplands sage-grouse population. Nonetheless, the
`
`EIS failed to meaningfully analyze the direct, indirect, and cumulative impacts of this project on
`
`local and regional populations of Greater sage-grouse.
`
`8.
`
`Finally, without regard for its obligations under NEPA, BLM only reviewed a
`
`very narrow set of alternatives to the project—limiting the consideration of available options to
`
`mitigate harms from this project and preventing the public from meaningfully analyzing the
`
`project and BLM from making an informed choice. BLM’s review also unlawfully excluded
`
`alternatives proposed in public comments, including by Plaintiffs WWP and the Center, without
`
`adequate consideration and reasoned explanation.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`9.
`
`Accordingly, Plaintiffs request that the Court declare that BLM’s FEIS and ROD
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`for the Caldwell Canyon Mine are arbitrary, capricious, and not in accordance with NEPA and
`
`the APA; vacate and set aside BLM’s FEIS and ROD approving the Caldwell Canyon Mine; and
`
`enjoin BLM from authorizing any further action associated with the Caldwell Canyon Mine until
`
`it complies with the statutory and regulatory demands of NEPA and the APA.
`
`JURISDICTION AND VENUE
`
`10.
`
`Plaintiffs bring this action pursuant to the judicial review provisions of the APA,
`
`5 U.S.C. §§ 701–706.
`
`11.
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
`
`question jurisdiction), and may issue a declaratory judgment, injunctive relief, and further relief
`
`requested by Plaintiffs pursuant to 28 U.S.C. §§ 2201–02.
`
`12.
`
`Plaintiffs also seek an award of costs and expenses, including attorneys’ fees,
`
`costs, and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412.
`
`13.
`
`Venue is proper in this Court under 28 U.S.C. § 1391(e) because Plaintiff WWP
`
`resides in the district, with its headquarters in Hailey, Idaho; the events or omissions giving rise
`
`to the claims in this case occurred in Idaho; and Defendant D’Aversa resides in this district.
`
`14.
`
`Pursuant to Local Rule 3.1, this case is properly assigned to the Southern Division
`
`because Plaintiff WWP is headquartered in Hailey, which is in Blaine County.
`
`PARTIES
`
`15.
`
`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit 501(c)(3)
`
`corporation headquartered in Tucson, Arizona, with offices in several states and Mexico. The
`
`Center has approximately 84,333 members throughout the United States and the world, including
`
`533 members in Idaho. The Center’s mission is to ensure the preservation, protection, and
`
`restoration of biodiversity, native species, ecosystems, public lands and waters, and public health
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 6 of 34
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`through science, policy, and environmental law. Based on the understanding that the health and
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`vigor of human societies and the integrity and wildness of the natural environment are closely
`
`linked, the Center is working to secure a future for animals and plants hovering on the brink of
`
`extinction, for the ecosystems they need to survive, and for a healthy, livable future for us all.
`
`16.
`
`Plaintiff WESTERN WATERSHEDS PROJECT is a non-profit 501(c)(3)
`
`corporation headquartered in Hailey, Idaho. WWP has more than 12,000 members and
`
`supporters throughout the United States. Through education, public policy initiatives, and legal
`
`advocacy, WWP works to protect and restore western watersheds and wildlife. WWP has a direct
`
`interest in mineral development that occurs in areas with sensitive wildlife populations and
`
`important wildlife habitat.
`
`17.
`
`Plaintiff WILDEARTH GUARDIANS is a non-profit organization headquartered
`
`in Santa Fe, New Mexico that is dedicated to protecting and restoring the wildlife, wild places,
`
`wild rivers, and health of the West. WildEarth Guardians has more than 7,000 members.
`
`WildEarth Guardians advocates for public land management that protects wildlife and their
`
`habitat, including the protection and restoration of sagebrush habitats to protect the Greater sage-
`
`grouse and other sagebrush-dependent species.
`
`18.
`
`All Plaintiff groups bring this action on their own behalf, and on behalf of their
`
`members who derive scientific, aesthetic, recreational, and spiritual benefits from the natural
`
`lands, wildlife, and waters around the Caldwell Canyon area and in Soda Springs, Idaho. These
`
`uses include hiking, camping, backpacking, fishing, boating, and viewing and enjoying wildlife
`
`and the surrounding natural environment in the area.
`
`19.
`
`Plaintiffs’ members and staff are, for example, concerned with protecting the
`
`wildlife, plants, scenery, air quality, water quality, and other natural values of Idaho, as well as
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`their own health. Members and staff of Plaintiffs’ organizations regularly use and enjoy public
`
`lands for recreational and aesthetic purposes both near and including the Caldwell Canyon Mine
`
`area and near the Soda Springs Plant. They intend to continue doing so.
`
`20.
`
`In the Caldwell Canyon area, for instance, Plaintiffs’ members and staff regularly
`
`engage in flyfishing and boating on the Blackfoot River and its side channels, and they intend to
`
`continue doing so. Plaintiffs’ members and staff also regularly engage in the following activities
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`in the Caldwell Canyon area, which they intend to continue: hiking; camping; photography; and
`
`wildlife observation, including looking for sage-grouse. Plaintiffs’ members and staff have also
`
`visited the Dry Valley Mine, where overburden from the Caldwell Canyon Mine will be placed.
`
`21.
`
`In the area of the Soda Springs Plant, which will process ore from the Caldwell
`
`Canyon Mine, Plaintiffs’ members and staff have, for instance, recreated at Hooper Springs Park,
`
`where they have drunk the water; picnicked, including for family reunions; birded; hiked; took
`
`pictures; watched wildlife; and rested during long car drives. Plaintiffs’ members and staff intend
`
`to continue to visit the park and the Soda Springs area.
`
`22.
`
`These uses are incompatible with the development of the Caldwell Canyon Mine
`
`as approved by BLM, and Plaintiffs’ members’ and staffs’ interests will be harmed if the mine is
`
`constructed and operated as it has been approved. For example, they will no longer be able to
`
`recreate at the mine site if it is developed.
`
`23.
`
`In addition, pollution from the Caldwell Canyon Mine will diminish Plaintiffs’
`
`members’ and staffs’ ability to enjoy the aesthetic qualities and recreational opportunities of the
`
`affected areas. Plaintiffs’ members and staff are concerned that recreating near the mine site will
`
`impact their health and that they will observe fewer wildlife in the area. Pollution from the
`
`Caldwell Canyon Mine will also impact the Blackfoot River. Plaintiffs’ members and staff have
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`worked to reduce the impacts of phosphate mining and are concerned about negative impacts
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`related to these mining practices, including fish and wildlife deformities caused by selenium
`
`pollution. Plaintiffs have members and staff that are concerned that they will see and catch fewer
`
`fish because of the mine development. Plaintiffs also have members and staff that do not eat the
`
`fish they catch from the Blackfoot River because of concern that mining has contaminated the
`
`fish. This concern will continue and be exacerbated if the Caldwell Canyon Mine is developed.
`
`In addition, Plaintiffs have members and staff that no longer drink water from Hooper Springs
`
`Park because of concern that it is polluted by the Soda Springs Plant. This concern will continue
`
`and be exacerbated if the Plant processes ore from the Caldwell Canyon Mine. Plaintiffs have
`
`members and staff that are also concerned that pollution from the Soda Springs Plant will
`
`diminish their enjoyment of Hooper Springs Park because of concern about how pollution from
`
`the Soda Springs Plant impacts their health, vegetation, and wildlife.
`
`24.
`
`In sum, Plaintiffs, their members, and the children, grandchildren, and future
`
`descendants of their members will be significantly and irreparably injured by the construction
`
`and operation of the Caldwell Canyon Mine. Plaintiffs’ members and staff seek to protect the
`
`wildlife, scenery, air quality, and other natural values of the region from the direct, indirect, and
`
`cumulative impacts of the Caldwell Canyon Mine so that they can continue using and enjoying
`
`the area.
`
`25.
`
`Defendants’ decision regarding the Caldwell Canyon Mine harms Plaintiffs’
`
`interests and the interests of their members because the development will destroy wildlife habitat
`
`and vegetation, further impact the already impaired Blackfoot River, degrade groundwater
`
`quality, increase air emissions, and diminish Plaintiffs’ staffs’ and members’ enjoyment of the
`
`area. BLM’s failure to comply with NEPA harms Plaintiffs, their members, and their staff by
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`denying them the right to informed decision making and public disclosure, as well as the right to
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`meaningfully participate in the decision-making process. The relief sought, including declaratory
`
`and injunctive relief, will redress Plaintiffs’, their staffs’, and their members’ injuries.
`
`26.
`
`Defendant BLM is a federal agency within the Department of the Interior. BLM is
`
`responsible for managing approximately 12 million acres of land in Idaho, nearly a quarter of the
`
`state’s total land area. BLM decides whether to approve activities necessary for phosphate
`
`mining on lands it administers, including rights-of-way, phosphate use permits, lease
`
`modifications, and mining activities on leased lands.
`
`27.
`
`Defendant Mary D’Aversa is the District Manager for the BLM Idaho Falls
`
`District. Ms. D’Aversa is the BLM official who signed and is responsible for the challenged
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`ROD and FEIS. Ms. D’Aversa is sued in her official capacity.
`
`28.
`
`Defendant United States Department of the Interior is a federal agency
`
`responsible for managing about five hundred million acres of federal public lands across the
`
`United States. The Department of the Interior, through its sub-agency BLM, decides whether to
`
`approve activities necessary for phosphate mining on lands it administers, including rights-of-
`
`way, phosphate use permits, lease modifications, and mining activities on leased lands.
`
`I.
`
`National Environmental Policy Act
`
`LEGAL BACKGROUND
`
`29.
`
`NEPA is our “basic national charter for protection of the environment.” 40 C.F.R.
`
`§ 1500.1(a) (1978, as amended). It serves twin goals. First, it aims to ensure that federal agencies
`
`carefully consider detailed information regarding the environmental impact of a proposed action
`
`before reaching a decision on the action. Second, it ensures that information about the impacts is
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`made available to members of the public so that they can play a role in the decision-making
`
`process.
`
`30.
`
`The Council on Environmental Quality (CEQ) has adopted regulations governing
`
`the implementation of NEPA. The regulations relevant to the action challenged in this case are
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`CEQ’s 1978 regulations (as amended in 1986 and 2005) that were in force when BLM both
`
`initiated and completed the NEPA process for the Caldwell Canyon Mine. Although CEQ issued
`
`a final rulemaking in July 2020 fundamentally rewriting those regulations, the new rules only
`
`apply “to any NEPA process begun after September 14, 2020,” or where an agency has chosen to
`
`“apply the regulations . . . to ongoing activities” and thus do not govern here. 40 C.F.R.
`
`§ 1506.13 (2020).
`
`31.
`
`NEPA and its implementing regulations require federal agencies to prepare an
`
`environmental impact statement (EIS) for all “major Federal actions significantly affecting the
`
`quality of the human environment.” 42 U.S.C. § 4332(c)(i); 40 C.F.R. § 1501.4 (1978, as
`
`amended). The “human environment” is defined “comprehensively to include the natural and
`
`physical environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14
`
`(1978, as amended).
`
`32.
`
`An EIS must describe: “(i) the environmental impact of the proposed action, (ii)
`
`any adverse environmental effects which cannot be avoided should the proposal be implemented,
`
`(iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of
`
`man’s environment and the maintenance and enhancement of long-term productivity, and (v) any
`
`irreversible and irretrievable commitment of resources which would be involved in the proposed
`
`action should it be implemented.” 42 U.S.C. § 4332(c)(i)–(v).
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`33.
`
`NEPA requires the agency to take a “hard look” at all direct, indirect, and
`
`cumulative environmental effects of the proposed action and its alternatives. 40 C.F.R.
`
`§§ 1502.14, 1502.16 (1978, as amended); Robertson v. Methow Valley Citizens Council, 490
`
`U.S. 332, 350 (1989). Direct effects are those that are “caused by the action and occur at the
`
`same time and place.” 40 C.F.R. § 1508.8(a) (1978, as amended). Indirect effects are those that
`
`are “caused by the action and are later in time or farther removed in distance, but are still
`
`reasonably foreseeable.” Id. § 1508.8(b). A cumulative effect is “the impact on the environment
`
`which results from the incremental impact of the action when added to other past, present, and
`
`reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or
`
`person undertakes such other actions.” Id. § 1508.7. “Effects” are synonymous with “impacts.”
`
`Id. § 1508.8.
`
`34.
`
`The “heart of the [EIS]” is an agency’s consideration of alternatives to the
`
`proposed action. Id. § 1502.14. An agency must, among other things, “[r]igorously explore and
`
`objectively evaluate all reasonable alternatives” to the actions considered in the EIS, including a
`
`baseline alternative of taking “no action.” Id. § 1502.14(a), (d). In the draft EIS, the action
`
`agency must identify its preferred alternative(s) unless prohibited by another law. Id.
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`§ 1502.14(e). For alternatives that the action agency eliminates from detailed review, the agency
`
`must “briefly discuss the reasons for their having been eliminated.” Id. § 1502.14(a).
`
`35.
`
`Public review and comment on DEISs are required by CEQ regulations. Federal
`
`agencies are required to “[e]ncourage and facilitate public involvement” “to the fullest extent
`
`possible.” Id. § 1500.2(d); see also id. § 1506.6(a) (requiring “diligent efforts [from agencies] to
`
`involve the public in preparing and implementing their NEPA procedures”). At a minimum, the
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`public must be given 45 days to review and comment on a DEIS. Id. § 1506.10(c).
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`36.
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`After completing and considering an EIS, the agency shall prepare a “concise
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`public [ROD]” that states the agency’s decision, identifies all alternatives considered, and
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`“state[s] whether all practicable means to avoid or minimize environmental harm from the
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`alternative selected have been adopted.” Id. § 1505.2.
`
`II.
`
`BLM Mineral Leasing
`
`37.
`
`BLM issues leases for mineral development on the lands it administers. For
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`known deposits of a leasable mineral, such as phosphate, BLM issues “competitive leases”
`
`through a bidding process. 43 C.F.R. § 3501.10(d).
`
`38.
`
`Existing leaseholders can obtain leases of Federal lands that adjoin their leases
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`through either a “fringe acreage lease” or “lease modification.” Id. § 3501.1(e), (f). A “fringe
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`acreage lease” is a new Federal lease, and BLM can impose different terms and conditions from
`
`the original Federal lease. Id. § 3510.21. A “lease modification” adds acreage to an existing
`
`lease, with the additional acreage subject to the same terms and conditions as the original lease.
`
`Id.
`
`39.
`
`BLM regulations also govern how leaseholders extract minerals. One of the
`
`purposes of BLM’s regulations is “to promote operating practices which will avoid, minimize or
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`correct damage to the environment—land, water, and air—and avoid, minimize or correct
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`hazards to public health and safety.” Id. § 3590.0-1. To this end, “[m]ining operations shall be
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`conducted in a manner to yield the ultimate maximum recovery of the mineral deposits,
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`consistent with the protection and use of other natural resources and the protection and
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`preservation of the environment—land, water, and air.” Id. § 3594.1(a) (emphasis added).
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`40.
`
`“Ultimate maximum recovery” is also defined and “does not in any way restrict
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`the authorized officer’s authority to ensure the conservative [sic] of the mineral resource and
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`protection of other resources.” Id. § 3590.0-5(h).
`
`III. Administrative Procedure Act
`
`41.
`
`42.
`
`Claims under NEPA are brought pursuant to the APA, 5 U.S.C. §§ 701–706.
`
`The APA allows persons and organizations to challenge final agency actions in
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`federal courts. Id. §§ 702, 704. Under 5 U.S.C. § 706, “the reviewing court shall decide all
`
`relevant questions of law, interpret constitutional and statutory provisions, and determine the
`
`meaning or applicability of the terms of an agency action.” The APA further declares that a court
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`shall hold unlawful and set aside agency actions found to be arbitrary, capricious, an abuse of
`
`discretion, or otherwise not in accordance with law. Id. § 706(2)(A).
`
`43.
`
`BLM’s issuance of a FEIS and ROD is a final agency action reviewable under the
`
`APA. See id. § 704.
`
`FACTUAL BACKGROUND
`
`I.
`
`Background on Phosphate Mining
`
`44.
`
`Southeast Idaho—a portion of which is referred to as Idaho’s phosphate patch—is
`
`the second largest producer of phosphate in the United States behind Florida. In total, at least 30
`
`phosphate mines have disturbed approximately 17,000 acres of land in southeast Idaho since the
`
`early 20th century, with roughly 7,000 additional acres slated for development, and another
`
`50,000 acres identified as containing potentially profitable phosphate ore.
`
`45.
`
`Phosphate mining in Idaho has caused significant selenium contamination. The
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`rock above or layered between the phosphate ore, called overburden, often contains selenium,
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`which is poisonous in large concentrations. Precipitation runoff from the overburden transports
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`selenium to groundwater and surface water. Mining operations also generate fugitive dust that is
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`contaminated with selenium, which can impact surface waters and other resources. The
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`Blackfoot River and several of its tributaries are contaminated above state water quality
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`standards for selenium.
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`46.
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`Once released to the environment, selenium can concentrate, or bioaccumulate, in
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`plants and animals. Between 1996 and 2012, over 600 head of livestock died from selenium
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`poisoning in the vicinity of phosphate mines in southeastern Idaho. Selenium contamination has
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`also caused adverse effects, including deformities and even mortality, in birds, aquatic animals,
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`and other wildlife.
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`47.
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`Phosphate mines are so contaminated that they often become federal hazardous
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`waste sites. EPA’s Superfund program—established under the Comprehensive Environmental
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`Response, Compensation, and Liability Act— has assessed at least sixteen contamination sites in
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`southeastern Idaho for cleanup. At least thirteen of these sites are now designated Superfund
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`sites.
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`II.
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`Background on Greater Sage-Grouse
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`48.
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`The Greater sage-grouse (Centrocercus urophasianus) is North America’s largest
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`grouse, best known for spectacular courtship displays where males gather in spring on traditional
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`breeding grounds (known as leks) and strut with their chests puffed out and spiky tails spread,
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`hoping to attract females. The “greater sage grouse is a sagebrush-obligate bird, meaning that it
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`relies on sagebrush for its survival year-round.” Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562,
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`565–66 (9th Cir. 2016).
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`49.
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`Greater sage-grouse once numbered in the millions across the western United
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`States and Canada, but loss and fragmentation of their native sagebrush habitats have caused
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`Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 15 of 34
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`populations to decline precipitously over the last century. Current sage-grouse numbers are
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`estimated to be less than five percent of historic population levels.
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`50.
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`The United States Fish and Wildlife Service (“Service”) determined in 2010 that
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`ESA listing for the Greater sage-grouse was “warranted, but precluded” by higher priority
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`species. See 75 Fed. Reg. 13,910 (March 5, 2010). The Service identified the primary threats to
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`the species as habitat loss and fragmentation, coupled with a lack of adequate regulatory
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`mechanisms to protect habitat across the bird’s range. Id.
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`51.
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`The 2010 ESA listing decision specifically identified mining as a threat to Greater
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`sage-grouse. Mining destroys and fragments habitat; impairs movement between seasonal use
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`areas; increases ambient noise levels that interrupt normal breeding, nesting, and feeding
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`behavior; facilitates the spread of invasive plants that increase the severity and frequency of
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`habitat-destroying wildfires; and increases bird mortality through vehicle collisions and by
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`introducing perching structures for sage-grouse predators. Restoration of disturbed sagebrush,
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`even where required, “is difficult to achieve and disturbed sites may never return to suitability
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`for sage-grouse.”
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`52.
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`Federal lands comprise over sixty percent of the sage-grouse’s range, making
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`federal land management decisions key to ensuring persistence of the species. Thus, in response
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`to the Service’s 2010 “warranted, but precluded” finding, BLM and the United States Forest
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`Service undertook a large-scale planning effort to increase federal protections for sage-grouse
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`and avoid having to list the Greater sage-grouse under the ESA. This process resulted in the
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`adoption, in 2015, of 98 revised or amended Resource Management Plans and Forest Plans
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`across the sage-grouse range in ten western states. Citing the heightened protections under those
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`Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 16 of 34
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`2015 plans, the Service determined in October 2015 that ESA listing of sage-grouse was not
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`warranted. 80 Fed. Reg. 59,858 (Oct. 2, 2015).
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`III. Caldwell Canyon Mine
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`53.
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`P4, a subsidiary of Bayer AG, seeks to develop the Caldwell Canyon Mine in
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`southeast Idaho (see Figure 1) to recover phosphate to produce the herbicide glyphosate for use
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`in Roundup products. Surface ownership in the proposed mine area includes a mix of private,
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`state endowment, and federal public lands. The phosphate deposits at issue are owned
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`predominantly by the federal government and managed by BLM, which issued leases granting
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`the exclusive rights to develop its mineral estate in accordance with a BLM-approved mine plan
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`(federal leases IDI-0000002, IDI-0014080, IDI-0013738, IDI-037319, IDI-037306).
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`Figure 1. Project Location for Caldwell Canyon Mine, BLM FEIS at 2.
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`Case 4:21-cv-00182-CWD Document 1 Filed 04/27/21 Page 18 of 34
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`54.
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`In 2016, P4 submitted to BLM and the Idaho Department of Lands a phosphate
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`mine and reclamation plan to develop the Caldwell Canyon Mine. P4 later revised and
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`resubmitted the plan to BLM on March 27, 2017, and then submitted additional refinements on
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`June 27, 2018. The plan outlines P4’s proposal for development, mining operations, water
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`management, environmental management, and closure and reclamation.
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`55.
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`Also on March 27, 2017, P4 submitted an application to modify the boundaries of
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`the federal leases to recover additional phosphate ore.
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`56.
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`Combined, the phosphate mine and reclamation plan and lease modifications
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`would allow P4 to:
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`• Mine federal leases for phosphate ore;
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`• Enlarge two federal leases by approximately 700 acres to recover additional ore;
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`•
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`Install a power transmission line;
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`• Construct haul roads and improve a service access road;
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`• Construct ponds and water handling facilities; and
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`• Develop infrastructure to handle, store, and ship ore, including extension of a railroad.
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`IV. Caldwell Canyon Mine’s Environmental Impacts
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`57.
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`As approved, the Caldwell Canyon Mine will disturb approximately 1,559 acres
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`of previously undeveloped land. P4 will construct two new open pits (North Pit and South Pit)
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`from which it will extract phosphate ore. P4 proposes to use trucks to haul the ore from the pits
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`on a newly construc