Case 3:21-cv-00080-MMD-CLB Document 1 Filed 02/11/21 Page 1 of 22
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`O. KENT MAHER (Nev. Bar No. 316)
`kent@winnemuccalaw.com
`PO Box 130
`33 W Fourth Street
`Winnemucca, Nevada 89446
`Ph: (775) 623-5277
`Fax: (775) 623-2468
`
`Local Counsel for Plaintiffs
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`DOMINIC M. CAROLLO (Or. Bar. No. 093057)
`[Pro Hac Vice Pending]
`dcarollo@carollolegal.com
`Carollo Law Group LLC
`P.O. Box 2456
`630 SE Jackson Street, Suite 1
`Roseburg, Oregon 97470
`Ph: (541) 957-5900
`Fax: (541) 957-5923
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`Attorneys for Plaintiffs
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`
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`
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`BARTELL RANCH, LLC, a Nevada
`limited liability company and EDWARD
`BARTELL,
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` Plaintiffs,
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` v.
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`ESTER M. MCCULLOUGH,
`Winnemucca District Manager, Bureau of
`Land Management, BUREAU OF LAND
`MANAGEMENT,
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` Defendants.
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` Case No.
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`COMPLAINT
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`INTRODUCTION
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`1.
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`Plaintiffs Bartell Ranch, LLC and Edward Bartell (collectively, “Bartell Ranch”)
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`challenge the decision by Defendant Ester M. McCullough, District Manager for the Winnemucca
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`District of the Bureau of Land Management (“BLM”), Department of Interior, to approve the
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`Thacker Pass Lithium Mine Project (the “Mine”), a proposal for a massive open pit lithium mine
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`with a disturbance area covering more than 5,000 acres and a total project area covering more than
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`17,000 acres of federal public land administered by BLM. Bartell Ranch is the holder of a federal
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`grazing permit, private ranch lands, and water rights that are imminently threatened with
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`irreparable harm by the construction and operation of the Mine. The Mine likewise threatens
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`irreparable harm to fish, wildlife, wetlands, and streamflows, including habitat for the Lahontan
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`Cutthroat Trout (“LCT”), which is listed as threatened under the Endangered Species Act (“ESA”).
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`2.
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`On January 15, 2021, Defendant McCullough signed a Record of Decision
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`(“ROD”) approving the Mine. The ROD selected Alternative A, the Proposed Action, from a
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`December, 2020 Final Environmental Impact Statement (“FEIS”), which was prepared by
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`consultants for the project proponent, Lithium Nevada Corporation (“LNC”), and which presents
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`a one-sided, deeply-flawed, and incomplete analysis and characterization of the proposed project
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`and its likely adverse environmental impacts, and in particular to water resources affecting
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`wetlands, streamflows, LCT and LCT habitat, as well as the water rights and private rangelands
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`held and owned by Bartell Ranch. The project consultants relied upon grossly inaccurate,
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`incomplete, and inadequate data for constructing baselines and models purporting to estimate
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`impacts to water resources caused by the groundwater pumping that would be associated with the
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`Mine. The project consultants did so in a manner that masks, or will mask, the likely
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`environmental impacts and, in addition, makes the proposed mitigation concepts and strategies
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`meaningless, inadequate and ineffective.
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` 3.
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`As described in the FEIS and approved in the ROD, the Mine will be located
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`entirely on public land administered by BLM in Humboldt County, Nevada. The sprawling 17,933-
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`acre project area is to be located approximately 17 miles north-northwest of Orovada, Nevada, in
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`a highly sensitive ecological area that is famously dry, with a commensurately limited and delicate
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`network of water resources. The Mine will require pumping substantial quantities of groundwater
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`for its operations, at 2,600 acre-feet annually during Phase 1, and 5,200 acre-feet annually during
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`Phase 2. The groundwater reserves within the “Orovada Subarea,” where this pumping will take
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`place, is already overallocated by approximately 30,271 acre-feet a year. Additionally, the
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`approximately 400’ deep open pit will draw down water tables, and the North and South
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`Exploration operations will drop water tables by allowing water to flow from upper aquifers to
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`lower aquifers, as has happened with prior LNC exploration. In addition, the Mine intends to use
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`a mining and processing method that will involve the use of millions of tons of toxic sulfuric acid
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`and the deposit of contaminated tailings containing sulfates, arsenic, antimony, and uranium.
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`4.
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`The Mine and the associated pumping will pose significant adverse harm to several
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`sensitive and protected species—including LCT and Greater Sage Grouse—through direct,
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`indirect, and cumulative impacts. It is well-established within the academy of hydrological science,
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`as well as within Ninth Circuit case law, that excessive groundwater pumping in an already-
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`overallocated basin is inextricably linked to reductions in streamflows within the hydrological
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`nexus. In addition, in signing the ROD, BLM has wholesale ignored the inconsistency of the Mine
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`with BLM’s Sage Grouse plans and associated regulations.
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`5.
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`Immediately north of the proposed Mine site are several perennial streams known
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`to be inhabited by LCT, and the presence of which is well-understood and comprehensively
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`documented throughout decades of catalogued research and reports completed by the Nevada
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`Department of Wildlife (“NDOW”) in conjunction with the U.S. Fish and Wildlife Service
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`(“FWS”). Two of the streams immediately to the north of the proposed Mine location where LCT
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`are known to inhabit are Pole Creek and Crowley Creek. Indeed, in NDOW’s 2012 LCT Study for
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`the Western Region, one of the specific objectives of the study was identifying genetically-pure
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`LCT in Crowley Creek via electroshocking, and then transporting them in aerated tanks to various
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`reaches of Pole Creek where they were then released to supplement the Pole Creek population.
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`This effort was described as one “to salvage and protect the last pure LCT within the Crowley
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`Creek drainage,” which was undertaken through “extensive genetic sampling and mapping,
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`salvaging pure LCT and reintroducing them into the Pole Creek tributary of Crowley Creek[,]”
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`and confirms the existence and importance of the Pole Creek LCT population to the continued
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`existence and recovery of the species.
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`6.
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`In approving the FEIS and ROD for this project, BLM acknowledges that the
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`Mine’s proposed pumping volume has “the potential for mine related groundwater aquifer
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`drawdown,” and that “[w]ater produced and used by the mine from the proposed production wells
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`could also affect surface water stream flows in nearby perennial and intermittent streams or
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`springs.” In the FWS 1995 Recovery Plan for the Lahontan Cutthroat Trout, “[r]eduction and
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`alteration of stream discharge” is listed as the very first of the “[m]ajor impacts to LCT habitat and
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`abundance[.]”
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`7.
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`Instead of adhering to the statutory duties imposed upon the agency with respect to
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`the protection of sensitive species such as the LCT, BLM relied entirely upon flawed and error-
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`laden findings made by a third-party contractor that compiled data for the EIS at the direction of,
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`and in return for payment from, the project applicant LNC. The FEIS made the arbitrary and
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`capricious finding that the proposed Mine and its associated pumping would not pose any threat
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`to ESA-listed LCT, noting in the FEIS that “[a]ccording to Piteau Associates, simulated flow
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`losses to [Lahontan Cutthroat Trout] occupied reaches of Crowley and Pole Creek due to water
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`use requirements from the proposed Project would not be expected.” In completely ignoring
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`impacts to LCT, LCT habitat, and other sensitive wildlife species and habitats, BLM acted in a
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`manner that is arbitrary, capricious, an abuse of discretion, and contrary to law under the National
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`Environmental Policy Act (“NEPA”) 42 U.S.C. §§ 4321–61, Federal Land Policy and
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`Management Act (“FLPMA”), 43 U.S.C. §§ 1701–1787, and Administrative Procedure Act
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`(“APA”), 5 U.S.C. § 701 et seq., requiring vacatur of the ROD by this Court.
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`8.
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`For example, but without limitation, BLM approved the ROD based on the FEIS’s
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`inadequate, incomplete, and, in several cases, misrepresented analysis and collection of the
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`baseline streamflow data and, thereby, failed to consider the likely impacts of the Mine on the LCT
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`population in Pole Creek. In the FEIS, BLM relied upon reports that make the conclusory and
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`objectively inaccurate determination that “Pole Creek is an ephemeral stream.” The existence of a
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`residential LCT population necessarily precludes the characterization of this stream as anything
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`other than a perennial stream. As a result of the objectively inaccurate characterization of the
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`perennial flows on Pole Creek, the FEIS’s data on pre-mining calibration flux targets and all other
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`modeling based upon this incorrect data and characterization as an “ephemeral creek” are
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`fundamentally flawed.
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`9.
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`By approving the ROD based on the FEIS’s inadequate, incomplete, and in some
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`cases objectively flawed collection of baseline data, the ROD was approved based on the FEIS’s
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`inadequate and incomplete analysis of likely impacts of the Mine on LCT and LCT habitat. Even
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`though the FEIS acknowledged that the Mine-associated pumping will have an impact on the
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`groundwater levels and surface flows (and even that the test-pumping conducted during the
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`analysis impacted groundwater tables), the FEIS failed to address the likely direct, indirect, and
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`cumulative impacts of the Mine on LCT and their habitats, in violation of NEPA.1
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`10.
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`If the proposed Mine project is allowed to commence—permanently altering the
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`water table and streamflows that an ESA-protected species rely on—it will cause irreparable harm
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`to LCT and their habitat in Pole Creek, which flows immediately north of the project area.
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`Construction of the Mine is imminent, with Phase 1 of the project commencing as early as 2021,
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`with mining and ore-processing estimated to commence as early as 2022. Accordingly, Plaintiffs
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`seek immediate relief, including preliminary injunctive relief, from this Court to set aside and
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`remand BLM’s ROD and FEIS, order BLM to prepare a new, lawful FEIS, enjoin the project and
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`preserve the environmental status quo during the interim period, and protect the ecological
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`integrity of Pole Creek and the residential LCT therein, as well as the host of other environmental
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`impacts that were ignored by BLM in the FEIS and in approving the ROD.
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`JURISDICTION AND VENUE
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`11.
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`Jurisdiction is proper in this Court under 28 U.S.C. 1331 (federal question) because
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`this action arises under the laws of the United States, including NEPA, 42 U.S.C. §§ 4321–4370(h),
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`the APA, 5 U.S.C. § 701 et seq., the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and the
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`Equal Access to Justice Act, 28 U.S.C. § 2412 et seq. An actual, justiciable controversy exists
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`between the parties, and the requested relief is therefore proper under 28 U.S.C. §§ 2201–2202
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`and 5 U.S.C. § 701–06.
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`12.
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`Venue is proper in this Court under 28 U.S.C. § 1391 because all or a substantial
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`1 Contemporaneously with filing this Complaint, Bartell Ranch is serving a 60-day notice of intent to sue on the
`BLM, other appropriate federal agencies, and LNC, providing notice of violations of the Endangered Species Act
`(“ESA”), 16 U.S.C. §§ 1531, et seq. Following the 60-day notice period, Bartell Ranch intends to amend this
`Complaint to allege violations of the ESA, including that BLM failed to undertake formal consultation under Section
`7 of the ESA.
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`part of the events or omissions giving rise to the claims herein occurred within this judicial district,
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`Defendants reside in this district, and the public lands and resources and agency records in question
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`are located in this district.
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`13.
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`The federal government has waived sovereign immunity in this action pursuant to
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`5 U.S.C. § 702.
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`PARTIES
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`14.
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`Plaintiff Edward Bartell in an individual American citizen who resides in Humboldt
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`County, Nevada, and owns and operates an active ranching operation (through Plaintiff Bartell
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`Ranch, LLC) on both private and leased public lands within the immediate vicinity of the proposed
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`Mine and the LCT-inhabited streams at issue in this action. Mr. Bartell is a co-owner in Bartell
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`Ranch, LLC. As a BLM grazing permit holder for the area at issue and a passionate steward of
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`the lands within and adjacent to the proposed Mine, Bartell Ranch has gone to great lengths to
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`protect LCT and LCT habitat in the area of the proposed Mine, and has real, genuine interests in
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`the species’ conservation and protection as a threatened and protected species. These actions
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`include moving cattle herds away from LCT habitat, as well as extensive construction of fencing
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`to protect surface waters with residential LCT populations in Pole Creek. Many of these efforts
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`were undertaken after or during communications with BLM in connection with administration of
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`the Bartell Ranch federal grazing permit.
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`15.
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`Defendants’ violations of federal laws and regulations, as alleged herein, directly
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`harm the interests of Plaintiffs in recovery of LCT and protection of LCT habitat, which have been
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`and will continue to be injured and harmed by Defendants’ actions as complained of herein. Unless
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`the relief prayed for is granted, Plaintiffs will suffer ongoing and irreparable harm and injury to
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`their interests.
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`16.
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`In addition to Bartell Ranch’s interests in LCT, Bartell Ranch are the owners of
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`private ranch lands and water rights that will, like LCT habitat, be negatively impacted by the
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`Mine. The FEIS and ROD ignored, severely discounted, or simply mispresented the likely
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`negative impacts to Bartell Ranch’s water rights and the productivity of their private ranch lands
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`as result of flawed, incomplete, error-laden, and mispresented data collection and modeling work
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`done by the project consultants and blindly incorporated and relied upon by BLM in the FEIS and
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`ROD.
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`17. Defendant Ester M. McCullough is the District Manager of the Winnemucca
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`District of the BLM, and has the statutory authority and responsibility to comply with all federal
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`laws and regulations in the management of federal public lands at issue here, including NEPA, the
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`ESA, and APA. She is sued in her official capacity.
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`18.
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`Defendant BLM is an agency or instrumentality of the United States, within the
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`Department of Interior, and is charged with managing the public lands and resources of the area at
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`issue in accordance and compliance with federal laws and regulations. BLM was the lead agency
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`that officially released the FEIS and subsequent ROD at issue in this action.
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`LEGAL BACKGROUND
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`19.
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`NEPA, 42 U.S.C. § 4321 et seq., is our “basic national charter for protection of the
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`environment.” 40 C.F.R. § 1500.1(a). It serves two purposes: (1) “it ensures that the agency, in
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`reaching its decision, will have available, and will carefully consider, detailed information
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`concerning significant environmental impacts,” and (2) it “guarantees that the relevant information
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`will be made available to the larger audience that may also play a role in both the decision-making
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`process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council,
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`490 U.S. 332, 349 (1989).
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`20.
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`NEPA requires agencies to prepare an environmental impact statement (EIS) for
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`“major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §
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`4332(2)(C). The EIS must “provide full and fair discussion of significant environmental impacts.”
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`40 C.F.R. § 1502.1. Agencies must consider every significant aspect of the environmental impact
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`of a proposed action. This includes studying the direct, indirect, and cumulative impacts of the
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`action. See 40 C.F.R. §§ 1508.7, 1508.8.
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`21.
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`Cumulative impacts are impacts that “result [] from the incremental impact of the
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`action when added to other past, present, and reasonably foreseeable future actions regardless of
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`what agency . . . undertakes such other actions.” 40 C.F.R. § 1508.7. Cumulative impacts “can
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`result from individually minor but collectively significant actions taking place over a period of
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`time.” Id.
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`22.
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`In analyzing the cumulative effects of a proposed action, an agency must do more
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`than just catalogue “relevant past projects in the area”: it must also include a “useful analysis of
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`the cumulative impacts of past, present and future projects.” City of Carmel-by-the-Sea v. U.S.
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`Dep’t of Transp., 123 F.3d 1142, 1160 (9th Cir. 1997). Agencies must provide “some quantified
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`or detailed information” about cumulative impacts – “[g]eneral statements about possible effects
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`and some risk do not constitute a hard look absent a justification regarding why more definitive
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`information could not be provided.” Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 993
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`(9th Cir. 2004). When an EIS does not “sufficiently identify or discuss the incremental impacts”
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`expected from successive projects, or “how those individual impacts might combine or
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`synergistically interact with each other to affect the [] environment,” it does not satisfy NEPA. Id.
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`23.
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`In addition, an agency must disclose and discuss any “responsible opposing view
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`which was not adequately discussed in the draft statement and shall indicate the agency’s response
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`to the issues raised.” 40 C.F.R. §1502.9(b). “This disclosure requirement obligates the agency to
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`make available to the public high-quality information, including accurate scientific analysis, expert
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`agency comments and public scrutiny, before decisions are made and actions are taken.” Ctr. for
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`Biol. Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1167 (9th Cir. 2003).
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`24.
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` BLM has breached its statutory duties and abused its discretion under NEPA by
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`relying upon a one-sided, inadequate, in in many cases misrepresented data, modeling, and analysis
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`in the FEIS to approve the ROD for the Mine and associated groundwater pumping while
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`downplaying or ignoring a host of significant environmental impacts.
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`STATEMENT OF FACTS
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`25.
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`The area of the proposed Mine, situated deep in northern Nevada’s high desert, is
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`a spectacular area with a rich geological and ecological diversity, wildlife habitat, and recreation
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`opportunities.
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`26.
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`Despite being in the high desert, several perennial, but sensitive and delicate,
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`spring-fed streams flow through the area at issue in this action. At least two of these streams—
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`Pole Creek and Crowley Creek—are inhabited by residential populations of LCT, which were
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`listed under the ESA as “endangered” in 1970, and then as “threatened” in 1975. Pole Creek and
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`Crowley Creek are immediately north of the proposed footprint for the mining operation subject
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`to this action.
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`27.
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`The lands subject to this action also benefit from water tables that are abnormally
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`high; so high that vegetation can access wetted soil. As water levels drop in this area, the lands are
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`quickly converted from productive grasslands to barren desert. Big game species and Greater Sage
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`Grouse depend on the numerous springs in this area for drinking water, and migratory waterfowl
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`are dependent upon the down-system wetlands that exist due to the abnormally high water tables.
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`This area is home to one of the largest Greater Sage Grouse populations in northern Nevada, and
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`one of the few areas with streams that host residential populations of native LCT outside of the
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`Truckee Basin.
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`28.
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`As holders of several vested, certificated, and permitted water rights for irrigation
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`and stock watering in the area subject to this action, Plaintiffs are intimately familiar with the
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`sensitivity of the hydrology. These water rights include groundwater rights with wells in the area,
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`enabling Plaintiffs to measure groundwater levels. Accordingly, Plaintiffs have been and continue
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`to be uniquely situated so as to both assess the efficacy of the test pumping data compiled by
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`LNC’s contractor (and subsequently adopted into the FEIS), and to suffer significant injury caused
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`by initiation of this mining operation.
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`29.
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`Through the data and reports compiled by LNC and its consultants—subsequently
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`adopted by BLM wholesale and incorporated into the FEIS—it can be seen that even after a short
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`period of test pumping, LNC’s proposed production well has already shown harmful impacts to
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`water levels in one of Plaintiffs’ stock water wells. Thus, the substantial groundwater pumping
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`planned by LNC in conjunction with its mining-related operations poses an imminent threat not
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`only to Plaintiffs’ existing water rights, but also to streamflows, the sensitive terrestrial and
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`riparian species that depend on them for survival, and the entire ecosystem as a whole.
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`30.
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`Plaintiffs hold the approximately 50,000-acre Crowley Creek grazing lease, which
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`is immediately to the north and west of the proposed open pit and within the proposed project area
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`for the Mine. Within the boundaries of that lease, Plaintiffs own a 320-acre parcel of land through
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`which Crowley Creek flows. This parcel of Plaintiff’s private land is approximately 1.5 miles from
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`the proposed “North Exploration Area” within the FEIS. The confluence of Crowley and Pole
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`Creeks is within the Mine’s “North Exploration Area,” as well as most of Lower Pole Creek. Even
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`more disturbing is the fact that a considerable reach of Pole Creek (which is home to a resident
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`population of ESA-listed LCT) flows directly through the Mine’s area of operations, inside the
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`“Disturbance within the Proposed Project Area” boundary, upstream of the confluence with
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`Crowley Creek (which is also known to be inhabited by LCT).
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`31.
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`The NDOW and FWS have put great effort and energy into studying and protecting
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`the residential populations of LCT in Pole and Crowley Creeks, immediately north of the proposed
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`Mine site. After introductions of non-native trout species into these systems, LCT began to
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`hybridize with the non-native fish in Pole Creek. In an effort to mitigate the genetic dilution of the
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`protected species, Pole Creek was chemically treated to eliminate non-native fish and genetically-
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`pure LCT were collected in Crowley Creek (for which Pole Creek is a tributary) and then
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`transported and reintroduced into Pole Creek by the NDOW in 2012. Over the years, Plaintiffs
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`have undertaken great efforts to protect Pole Creek in order to enhance conditions for LCT.
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`Plaintiffs are active participants in the conservation efforts of LCT in this water-sensitive area, and
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`are substantially invested and interested in the conservation and protection of this ESA-listed
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`species.
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`32.
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`The harm caused by over-pumping the groundwater in this area to the sensitive
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`hydrological conditions not only means harm to forage availability for grazing purposes, but it
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`means harm to Greater Sage Grouse and LCT and LCT habitat. Through their endeavors to be
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`good stewards of this land and the ecosystems therein, Plaintiffs know that fluctuations to the water
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`table, which will be caused by the monumental volume of groundwater pumping proposed by this
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`project, create an immediate and significant threat to the sensitive balance that exists on this unique
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`landscape. There exists a delicate balance to the biological status quo of this landscape that is
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`maintained in large part through Plaintiffs’ disciplined rotational grazing practices, mindful water
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`use, and being proactive and flexible land stewards and managers.
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`33.
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`Over the course of the efforts related to protecting the LCT habitat, Plaintiffs have
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`met with BLM staff several times to discuss LCT-issues on Pole Creek, and BLM has prepared
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`NEPA documentation related to the fencing efforts to protect Pole Creek and its resident LCT
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`populations. Plaintiffs' rotational grazing operation and extensive fencing efforts were designed to
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`minimize impacts to LCT habitat and protect this vulnerable species and its riparian habitat. Prior
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`to LNC even beginning its work on the application for this Mine, BLM has been well aware that
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`Pole Creek is both a perennial stream and that it contains a residential population of the ESA-listed
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`and protected LCT.
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`34.
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`Over the course of the last several years, “studies” on the water features of this area
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`have been paid-for and carried out on behalf of LNC in conjunction with the application process
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`to develop this Mine. Within these studies are numerous erroneous figures that purport to show
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`that Pole Creek is an ephemeral stream that lacks any standard annualized flow. On numerous
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`occasions—through correspondence with BLM, LNC, and LNC’s contractors, as well as
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`comments submitted throughout the scoping process—Plaintiffs have informed BLM that
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`perennial reaches (those with year-round flow) of Pole Creek were being erroneously labeled as
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`ephemeral (flows that only exist briefly after rainfall or snowmelt). Hence, both LNC’s
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`contractors, LNC itself, and the BLM have been aware of these inaccuracies in the data since
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`before the EIS process even began.
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`35.
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`BLM accepted reports submitted by LNC and completed on its behalf that form the
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`basis of the FEIS that mischaracterize Pole Creek as “an ephemeral stream” with sections that
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`“may” flow perennially, “but are not continuous year-round.” Not only is this characterization of
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`Pole Creek (as an ephemeral stream, but one with non-continuous perennial reaches) a completely
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`nonsensical and contradictory statement in and of itself, but it is well-established in studies and
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`reports completed by NDOW that Pole Creek is considered a perennial stream that has resident
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`LCT. This “ephemeral” distinction for the entirety of Pole Creek in the FEIS is at odds with the
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`fact that NDOW and FWS recognize Pole Creek as a perennial stream.
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`36.
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`Despite awareness of these inaccuracies in the baseline data, BLM accepted the
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`objectively flawed Hydrologic Data Collection Report (“Report,” compiled by the applicant
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`Case 3:21-cv-00080-MMD-CLB Document 1 Filed 02/11/21 Page 14 of 22
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`LNC’s contractors) into its baseline data for the FEIS. This Report purports that the entirety of
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`Pole Creek is an ephemeral stream. These inaccuracies were then used to calibrate groundwater
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`modeling which comprise the central basis of BLM’s decision-making in the draft EIS. The
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`groundwater-modeling was calibrated using calibration flux targets of zero flow for all reaches of
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`Pole Creek.
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`37.
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`In the FEIS, in response to objections from Plaintiffs regarding the flaws and
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`omissions in the data relied upon within the draft EIS, BLM (and, thereby, LNC) advanced the
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`position that even though LNC’s contractors calibrated the groundwater model with zero flow for
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`all reaches of Pole Creek, the model still somehow arrived at the correct baseflow. Supporting this
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`reasoning, BLM incorporated new data provided by LNC into the FEIS, which the public had
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`never seen before. As Plaintiffs noted in their comments to the FEIS, which was supported by an
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`expert hydrologist, these new data are highly erroneous and controversial due to site bias and
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`failure to consider evapotranspiration, and even then, they still do not match the modeled data.
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`38.
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`BLM also failed to require LNC to establish long-term gauging stations on any
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`portion of Pole Creek, or to correct any of the clearly erroneous calibration flux targets for Pole
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`Creek. Instead, BLM accepted this after-the-fact flow data with little to no explanation in the FEIS
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`in order to backfill clear errors in the Report. Amazingly, in the Report, LNC’s contractors only
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`documented two (2) side channel springs that feed Upper Pole Creek and Middle Pole Creek, while
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`ignoring the flow in the main channel of the Creek itself, and numerous other springs along
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`Upper/Middle Pole Creek. Furthermore, photographs that accompany the Report purport to
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`represent a particular Spring that was allegedly measured (SP-036) were taken a substantial
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`distance downstream from the actual spring itself. Likewise, BLM refused to consider NDOW
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`data presented in Plaintiffs’ comments on the perennial flows of Pole Creek from 2020, 2009,
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`2003, 1998, and 1987, and instead, unbelievably, opted to base its “ephemeral” characterization of
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`this entire stream solely on the LNC contractors’ improperly-collected data from two (2) solitary
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`side channels that feed Pole Creek, instead of any actual data from the mainstem of Pole Creek
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`itself. There are countless other omissions and errors in the baseline data upon which LNC’s
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`contractors’ Report is based that were addressed in detail within the numerous comments
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`submitted by Plaintiffs following the publication of the draft EIS and the FEIS.
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`39.
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`LNC’s own Report—paid for and submitted in support of its application—also
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`shows that LNC mining operation is significantly altering the area’s hydrology by as much as 90-
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`feet in certain areas where exploratory wells were dug by LNC, in addition to falsifying key pump-
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`result data graphing to arbitrarily move elevations of separate test wells so as to argue that water
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`elevation levels are lower in the area at issue and thereby erroneously minimize the potential
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`impacts of long-term pumping.
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`40.
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`Despite being aware of the errors in the baseline data, the FEIS makes the following
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`two contradictory conclusions: (1) “[w]ater produced and used by the mine from the proposed
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`production wells could also affect surface water stream flows in nearby perennial and intermittent
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`streams or springs[;]” and (2) “[a]ccording to Piteau Associates [LNC], simulated flow losses to
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`LNC occupied reaches of Crowley and Pole Creek due to water use requirements from the
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`proposed Project would not be expected.” These statements are irreconcilable and highlight the
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`gross material errors in the FEIS, which states, falsely, that the Mine will have no impact on LCT
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`or LCT habitat, despite acknowledging more generally elsewhere in the FEIS that water used by
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`the Mine could, indeed, effect surface water stream flows—i.e., LCT habitat.
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`41.
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`Despite this Mine’s potential to reduce streamflow on nearby perennial and
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`ephemeral streams, BLM opted for its proposed Alternative A, which extends the 10-foot threshold
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`drawdown area only a mere 1.4 miles from the project area. The modeled 10-foot drawdowns
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`are compromised by erroneous model inputs. Moreover, the 10-foot drawdowns are the alleged
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`extent of confidence in model accuracy, not the extent of impacts. Any drawdown underneath
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`springs supplying water to Pole Creek will impact flows, and by extension LCT habitat.
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`42.
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`LNC’s contractors doctored and/or misreported the data that BLM unquestioningly
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`incorporated into the FEIS, which had the effect of materially altering the baseli