Case 2:20-cv-00924-SMV-GBW Document 1 Filed 09/11/20 Page 1 of 35
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW MEXICO
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`FRIENDS OF THE FLORIDAS; NEW MEXICO )
`WILDERNESS ALLIANCE; WILDEARTH
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`GUARDIANS; GILA RESOURCES
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`INFORMATION PROJECT; AMIGOS BRAVOS; )
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`Plaintiffs,
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`vs.
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`UNITED STATES BUREAU OF LAND
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`MANAGEMENT; WILLIAM CHILDRESS,
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`in his official capacity as District Manager of the
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`BLM Las Cruces District Office;
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`DAVID WALLACE, in his official capacity as
`Assistant District Manager of the BLM Las Cruces )
`District Office;
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`Defendants.
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`INTRODUCTION
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`Case No.: 1:20-cv-924
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`PETITION FOR REVIEW
`OF AGENCY ACTION
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`1.
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`Plaintiffs Friends of the Floridas, New Mexico Wilderness Alliance, WildEarth
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`Guardians, Gila Resources Information Project, and Amigos Bravos file this action for vacatur,
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`and equitable, declaratory and injunctive relief under the Administrative Procedure Act (APA), 5
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`U.S.C. §§ 701-706; the Federal Land Policy Management Act of 1976 (FLPMA), 43 U.S.C. §§
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`1701 et seq.; the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et. seq.; and
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`their implementing regulations and policies. Plaintiffs challenge the actions of the United States
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`Bureau of Land Management (BLM) in authorizing and approving the American Magnesium
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`Foothill Dolomite Mine Project (mine or Project) located on federal public lands managed by
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`BLM near Deming, New Mexico, in violation of these laws, policies, and regulations.
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`2.
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`The Project is proposed by American Magnesium, LLC (AM). As approved by
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`BLM, the Project would construct a new road across public land, conduct extensive exploration
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`drilling, blast and excavate a large open pit, as well as develop additional infrastructure on public
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`land. Project operations would last 20 years and include 92 truck trips per day, passing through
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`residential areas and Deming on their way to a necessary, but still unreviewed, processing mill.
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`3.
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`On August 7, 2020, the District Manager of BLM’s Las Cruces District,
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`Defendant William Childress, issued the Decision Record (DR) authorizing the Project. The DR
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`was based on BLM’s Environmental Assessment (EA) issued by the Las Cruces District in July
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`of 2020. The DR also relied on BLM’s “Finding of No Significant Impact” (FONSI) issued on
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`July 31, 2020 by the Assistant District Manager of the Las Cruces District, Defendant David
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`Wallace. Plaintiffs challenge these BLM actions and decisions.
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`4.
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`The Project is adjacent to the Florida Mountains Wilderness Study Area (WSA),
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`and the Florida Mountains Area of Critical Environmental Concern (ACEC).
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`5.
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`BLM designated the Florida Mountains ACEC and WSA to protect the
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`significant scenic values, wildlife resources, biological systems including sensitive plant
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`communities, and unique natural features of these lands. WSAs like the Florida Mountain are
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`areas of public land that the agency recognizes as suitable for inclusion in the National
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`Wilderness Preservation System.
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`6.
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`According to BLM: “The Florida Mountains WSA also contains special features
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`such as ecological and scenic features. The WSA contains suitable habitat for a New Mexico
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`State-listed species, night blooming cereus. The peaks and slopes of the Florida Mountains
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`creates a high scenic quality within the WSA (BLM 1991). The higher elevations of the WSA
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`contain steep, angular, red and gray rock outcroppings.” EA at 64.
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`7.
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`Although the directly disturbed lands at the Project site do not lie within the
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`Florida Mountains ACEC and WSA, because of its close proximity to these protected lands, the
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`Project will result in direct and adverse impacts to wildlife, scenic beauty, and recreation in and
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`around the ACEC and WSA. This is in addition to the significant impacts to the local
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`communities that will be affected by the constant truck traffic to and from the Project, as well as
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`to the BLM-managed public lands at and around the Project site itself.
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`8.
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`The Florida Mountains are known as a “sky island,” and contain a diversity of
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`habitats not found in the desert below. Coniferous woodland, mountains scrub (or chaparral),
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`grasslands, and desert shrub and cactus plant communities comprise much of the vegetation.
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`Small pockets of riparian areas are found around the numerous springs in the area. Canyons in
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`the range direct rainfall into the closed drainage basin of the Mimbres River.
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`9.
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`In reviewing and approving the Project, BLM violated NEPA by failing to take
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`the required “hard look” at: (1) the Project’s direct, indirect and cumulative impacts; (2) the
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`baseline conditions of the areas that may be affected by the Project; (3) mitigation measures that
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`would reduce Project impacts; and (4) reasonable alternatives to the Project.
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`10.
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`BLM approved both extensive exploration drilling as well as the full-scale 20-
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`year mine, yet admits that there is no plan or proposal to process the excavated minerals from the
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`mine. BLM also admits that neither it nor the company know the extent of the purported ore
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`body, or even if the mine would be a going concern. In essence, BLM approved a full-scale
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`mine with nowhere to go.
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`11.
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`Under NEPA, BLM is obligated to fully consider all of the “direct, indirect, and
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`cumulative impacts” from the mine as well as all “reasonably foreseeable future actions.” BLM
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`admits that the processing mill is necessary, indeed there could be no viable mine without the
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`mill, yet BLM’s EA has no details about the mill, outside of a vague reference to a mill location
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`on the north side of Deming.
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`12.
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`Regarding BLM’s decision to approve mining even before exploration has
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`occurred, BLM mining regulations and policy mandate that BLM cannot approve full mining
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`before the initial exploration. Pursuant to its duty to “prevent unnecessary or undue degradation”
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`under FLPMA, 43 U.S.C. § 1732(b), BLM requires that all mineral operations follow the
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`“performance standards” at 43 CFR § 3809.420. These standards include the requirement that
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`BLM review and approve operations in the logical sequence of operations – where exploration is
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`a prerequisite of actual mining, excavation, and processing.
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`13.
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`Plaintiffs had specifically requested that BLM review the reasonable alternative
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`that BLM only consider the exploration at this time. Yet BLM refused, violating NEPA’s
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`requirement that BLM fully consider all “reasonable alternatives.”
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`14.
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`For these and the related reasons addressed herein, Plaintiffs ask this Court to
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`declare that BLM’s actions violate the above-listed federal laws, regulations, and policies.
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`Plaintiffs ask this Court to vacate and remand BLM’s decisions and enjoin any road construction,
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`exploration, mining, and other Project operations pending compliance with federal law.
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`JURISDICTION AND VENUE
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`15.
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`This is a suit pursuant to the APA, FLPMA, NEPA, and the implementing
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`regulations and policies of these laws. Jurisdiction over this action is conferred by 28 U.S.C. §
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`1331 (federal question), § 2201 (declaratory relief), and § 2202 (injunctive relief).
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`16.
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`Venue is properly before the District of New Mexico pursuant to 28 U.S.C. §§
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`1391 (b) and (e). The BLM Las Cruces District Office, and the named defendants are located in
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`New Mexico. The Project is located in Luna County, New Mexico. Plaintiffs’ offices and
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`members reside in New Mexico.
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`17.
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`The requested relief would redress Plaintiffs’ actual, concrete injuries caused by
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`the BLM’s failure to comply with duties mandated by NEPA and FLPMA and their
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`implementing regulations and policies.
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`18.
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`The challenged agency actions are final and subject to judicial review pursuant to
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`5 U.S.C. §§ 702, 704, & 706.
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`PARTIES
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`19.
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`Plaintiff FRIENDS OF THE FLORIDAS (Friends) is a nonprofit organization
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`based in the Deming, New Mexico area whose mission is to protect the public lands in the
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`Florida Mountains and nearby areas. Friends was formed to respond to the environmental threats
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`posed by the Project. Members of Friends use, enjoy, and value the lands and resources affected
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`by the Project, including the public lands and access roads at and around the Project. Friends
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`members live in close proximity to the Project and use on a daily basis the roads that the Project
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`will use. Members of Friends hike, view and photograph wild plant and animal life, and
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`generally enjoy using the lands affected by the Project for recreational, historical, conservation,
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`and aesthetic purposes. These uses will be immediately and irreparably affected by the direct
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`and adverse impacts to Friends members resulting from the road construction, drilling, blasting,
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`and other Project operations.
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`20.
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`Plaintiff NEW MEXICO WILDERNESS ALLIANCE (NMWA) is a 501(c)(3)
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`nonprofit organization based in Albuquerque, New Mexico, dedicated to the protection,
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`restoration, and continued enjoyment of New Mexico’s wildlands and wilderness areas, with
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`thousands of members across the state. The Project at the base of the Florida Mountains will
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`have significant detrimental effects on the nearby Wilderness Study Area and ACEC and will
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`negatively impact NMWA and its members’ ability to recreate and enjoy New Mexico’s public
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`lands in the area. Members of NMWA use, enjoy, and value the lands and resources affected by
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`the Project, including the public lands and access roads at and around the Project. Members of
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`NMWA hike, view and photograph wild plant and animal life, and generally enjoy using the
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`lands around and affected by the Project for recreational, historical, conservation, and aesthetic
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`purposes. These uses will be immediately and irreparably adversely affected by the Project’s
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`road construction, drilling, blasting, and other operations.
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`21.
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`Plaintiff WILDEARTH GUARDIANS (Guardians) is a 501(c)(3) non-profit
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`membership organization based in Santa Fe, New Mexico, with offices throughout the West.
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`Guardians has more than 200,000 members and activists, some of whom live, work, or recreate
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`on public lands in the region where the Project is located. Guardians and its members are
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`dedicated to protecting and restoring the wildlife, wild places, wild rivers, and health of the
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`American West. Towards this end, Guardians and its members work to ensure that BLM
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`complies with all federal laws when it authorizes projects like this one that can irreversibly
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`damage federal public lands, wildlife, water, and air quality. Guardians’ members regularly use,
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`and intend to continue using, public lands that are on, around, and/or within view of lands
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`affected by the Project for hiking, fishing, hunting, wildlife viewing, and aesthetic enjoyment.
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`Guardians’ members’ enjoyment of public lands in and adjacent to the Project will be
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`immediately, irreparably, and adversely affected and diminished as a result of Defendants’
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`actions. The Project stands to directly alter the natural state of public lands within and beyond
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`the Project area, produce air pollution that is offensive, create noise that disrupts wildlife and
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`recreational enjoyment, and lead to connected development that will further adversely impact
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`nearby public lands, including road construction, truck traffic, and the construction of processing
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`facilities needed for the mine.
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`22.
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`Plaintiff GILA RESOURCES INFORMATION PROJECT (GRIP) is a New
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`Mexico nonprofit membership organization, tax-exempt under section 501(c)(3), established in
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`1998, and based in Silver City, New Mexico. GRIP has approximately 1000 members. GRIP’s
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`mission is to promote community health by protecting the environment and natural resources of
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`southwest New Mexico, including protecting surface water, groundwater, wildlife, and air
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`quality. Most GRIP members live in southwestern New Mexico, including areas in the vicinity
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`of the proposed American Magnesium dolomite mine. GRIP members use and enjoy the natural
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`resources of southwest New Mexico, including the areas at and around the Project site. They use
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`these areas for various forms of recreation, including birding, botanizing and wildflower
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`viewing, hiking, and photography, all of which will be irreparably, immediately, and adversely
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`affected by the mine Project.
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`23.
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`Plaintiff AMIGOS BRAVOS is a state-wide New Mexico water conservation
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`organization formed in 1988 and based in Taos, New Mexico. It is a non-profit organization
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`under section 501(c)(3) of the Internal Revenue Code. Amigos Bravos is guided by social justice
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`principles and dedicated to protecting and restoring the waters of New Mexico. Since its
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`formation Amigos Bravos has worked to ensure that New Mexico's mining laws protect clean
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`water and the communities that depend on clean water for drinking, irrigation, recreation, and
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`cultural traditions. Amigos Bravos supporters use and enjoy the natural resources of southwest
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`New Mexico, including the areas at and around the site of the proposed mine. They use these
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`areas for various forms of recreation, including birding, botanizing and wildflower viewing,
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`hiking, and photography, all of which will be irreparably, immediately, and adversely affected by
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`the mine Project.
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`24.
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`In addition to continuing to use and be adversely affected by the Project,
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`members of Plaintiff groups intend on continuing to use and value the lands at, and affected by,
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`the Project. These uses are, and will be, immediately, irreparably, and significantly harmed by
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`the Project.
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`25.
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`In addition to the immediate and irreparable injury to the environment and
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`Plaintiffs’ members uses of the public lands and nearby lands, Plaintiffs have been, and continue
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`to be, injured by BLM’s failure to conduct a proper review of the Project under NEPA and
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`FLPMA. BLM’s legally inadequate EA, FONSI, and DR harms Plaintiffs’ procedural rights to
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`participate in a valid NEPA and FLPMA public process.
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`26.
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`A favorable ruling in this case would redress the harms that Plaintiffs and their
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`members stand to suffer as a result of Defendants’ actions. If Defendants had properly
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`considered the negative impacts of their actions on land, air quality, recreation, water resources,
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`and wildlife they likely would not have authorized the Project, or would have considered only
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`authorizing the exploration phase of the Project. This would have prevented the diminishment of
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`the enjoyment of public lands used by Plaintiffs and their members. A favorable ruling would
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`ensure that as Plaintiffs’ members continue to use and enjoy public lands affected by
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`Defendants’ actions, their harms would be reduced, if not eliminated.
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`27.
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`Faced with BLM’s actions and omissions authorizing the Project, and Plaintiffs’
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`concrete and imminent injuries stemming from BLM’s unlawful Project authorization, Plaintiffs
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`now seek judicial review in this Court.
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`28.
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`Defendant BUREAU OF LAND MANAGEMENT is an agency of the United
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`States government responsible for the management and protection of the public lands at and
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`around the Project site. The BLM’s Las Cruces District Office, District Manager WILLIAM
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`CHILDRESS, and Assistant District Manager DAVID WALLACE, have direct responsibility for
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`the public lands at and around the Project and are responsible for the decisions, actions and
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`omissions in reviewing and approving the Project. The named individuals are sued in their
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`official capacities.
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`STATUTORY AND REGULATORY BACKGROUND
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`Administrative Procedure Act
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`29.
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`The APA provides a right to judicial review to any “person suffering legal wrong
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`because of agency action.” 5 U.S.C. § 702. Actions that are reviewable under the APA include
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`final agency actions “for which there is no other adequate remedy in a court.” Id. Under the
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`APA, a reviewing court shall, inter alia, “hold unlawful and set aside agency action . . . found to
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`be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
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`U.S.C. § 706(2)(A). Agency actions may also be set aside in other circumstances, such as where
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`the action is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(B)-(F).
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`National Environmental Policy Act
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`30.
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`NEPA is our “basic national charter for the protection of the environment.” 40
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`C.F.R. § 1500.1. NEPA recognizes that “each person should enjoy a healthful environment,”
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`and was enacted to ensure that the federal government uses all practicable means to “assure for
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`all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,”
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`and to “attain the widest range of beneficial uses of the environment without degradation, risk to
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`health or safety, or other undesirable and unintended consequences,” among other policies. 42
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`U.S.C. § 4331(b).
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`31.
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`The Council on Environmental Quality (“CEQ”) promulgated uniform regulations
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`to implement NEPA which are binding on all federal agencies. 40 C.F.R. Part 1500.1
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`32.
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`BLM and the Department of the Interior have promulgated NEPA regulations, 43
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`C.F.R. Part 46, and policies, NEPA Handbook 1790-1, which are also binding upon BLM.
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`33.
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`NEPA regulations direct that “Agencies shall integrate the NEPA process with
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`other planning at the earliest possible time to ensure that planning and decisions reflect
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`environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40
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`C.F.R. § 1501.2.
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`34.
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`NEPA’s twin aims are to ensure that federal agencies take a hard look at the
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`environmental impacts of their proposed actions before they act and to ensure that agencies
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`provide relevant information to the public so the public can play a role in both the decision-
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`making process and the implementation of the decision. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§
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`1502.1, 1502.16. By focusing the agency’s attention on the environmental consequences of its
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`proposed action, NEPA ensures that important effects will not be overlooked or underestimated
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`only to be discovered after an agency has committed resources. 42 U.S.C. § 4332(2)(C).
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`35.
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`NEPA requires that “environmental information is available to public officials
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`and citizens before decisions are made and before actions are taken.” 40 C.F.R. §1500.1(b).
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`1 The Council on Environmental Quality recently revised its national NEPA regulations, which
`become effective on September 14, 2020. 85 Fed. Reg. 43304-43376 (July 16, 2020). Because
`BLM conducted its NEPA review for this project before the new regulations became effective,
`the CEQ NEPA regulations existing prior to September 14, 2020, at 40 C.F.R. Part 1500, apply
`to the project and this Court’s review.
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`36.
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`Under NEPA, BLM must consider (1) “the environmental impact of the proposed
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`action,” (2) “any adverse environmental impacts that cannot be avoided,” (3) “alternatives to the
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`proposed action,” (4) “the relationship between local short-term uses . . . and the maintenance
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`and enhancement of long-term productivity,” and (5) “any irreversible and irretrievable
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`commitments of resources.” 42 U.S.C. § 4332(2)(C).
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`37.
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`NEPA requires federal agencies to prepare a detailed environmental impact
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`statement (EIS) for every major federal action that may have a significant impact on the quality
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`of the human environment. 42 U.S.C. § 4332. An EIS is required to “provide full and fair
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`discussion of significant environmental impacts and shall inform decisionmakers and the public
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`of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the
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`quality of the human environment.” 40 C.F.R. § 1502.1.
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`38.
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`An Environmental Assessment (EA) can be created to aid the agencies in
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`determining whether or not a proposed activity may significantly affect the quality of the
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`environment. 40 C.F.R. §§ 1501.4(b), 1508.9.
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`39.
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`An EA must include a full and adequate analysis of environmental impacts of a
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`project and alternatives and must also include a “hard look” at the direct, indirect, and
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`cumulative impacts of the project and its alternatives, resulting from all past, present, and
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`reasonably foreseeable future actions. Id. §§ 1508.7, 1508.8, 1508.9, 1508.25(c). An “effect” as
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`used in NEPA and its implementing regulations “includes ecological . . . , aesthetic, historic,
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`cultural, economic, social, or health, whether direct, indirect, or cumulative.” 40 C.F.R. §
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`1508.8(b).
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`40.
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`Direct effects are caused by the action and occur at the same time and place as the
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`proposed project. 40 C.F.R. §1508.8(a). Indirect effects are caused by the action and are later in
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`time or farther removed in distance, but are still reasonably foreseeable. Id. §1508.8(b). Types of
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`impacts include “effects on natural resources and on the components, structures, and functioning
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`of affected ecosystems,” as well as “aesthetic, historic, cultural, economic, social or health
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`[effects].” Id.
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`41.
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`Cumulative effects/impacts are defined as:
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`[T]he 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.
`Cumulative impacts can result from individually minor but collectively significant
`actions taking place over a period of time.
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`40 C.F.R. § 1508.7.
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`42.
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`“A NEPA analysis requires the consideration of cumulative impacts in an EA.”
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`Wyoming Outdoor Council v. U.S. Army Corps of Engineers, 351 F.Supp.2d 1232, 1241 (D.
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`Wyoming 2005). See also Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir.2002) (“The EA does
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`not provide an adequate discussion of the cumulative impacts of the Project on the human
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`environment.”).
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`43.
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`As BLM’s NEPA Policy Handbook states: “For an EA, we recommend that you
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`consider connected or cumulative actions in the same EA, and similar actions may be discussed
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`at your discretion. Considering connected or cumulative actions in a single EA is particularly
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`important in the evaluation of significance….” National Environmental Policy Handbook, H-
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`1790-1, at 44.
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`44.
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`The Department of the Interior and BLM have adopted their own regulations to
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`supplement CEQ’s NEPA regulations. These supplemental regulations require consideration of
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`all reasonably foreseeable actions. “Reasonably foreseeable future actions include those federal
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`and non-federal activities not yet undertaken, but sufficiently likely to occur, that a Responsible
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`Official of ordinary prudence would take such activities into account in reaching a decision.” 43
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`C.F.R. § 46.30 (emphasis in original).
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`45.
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`An agency cannot defer conducting an analysis of foreseeable impacts by
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`asserting that the consequences are unclear or that the agency will analyze the impacts at a later
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`point in time if the agency is making an irretrievable commitment of resources. New Mexico ex
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`rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 718 (10th Cir. 2009).
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`46.
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`The alternatives analysis is the heart of a NEPA document, and NEPA’s
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`implementing regulations direct agencies to “[r]igorously explore and objectively evaluate all
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`reasonable alternatives.” 40 C.F.R. § 1502.14(a). The alternatives considered should include
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`those “that will avoid or minimize adverse effects of the actions upon the quality of the human
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`environment.” Id. § 1500.2(e).
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`47.
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`In its alternatives’ analysis, the agency must “present the environmental impacts
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`of the proposal and the alternatives in comparative form, thus sharply defining the issues and
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`providing a clear basis for choice among options by the decisionmaker and the public.” Id. §
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`1502.14; see also id. § 1505.1(e). This requires the agency to “[d]evote substantial treatment to
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`each alternative considered in detail . . . so that reviewers may evaluate their comparative
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`merits.” Id. § 1502.14(b).
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`48.
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`BLM must “state how alternatives considered in it and decisions based on it will
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`or will not achieve the requirements of [NEPA] and other environmental laws and policies.” 40
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`C.F.R. § 1502.2(d). For alternatives that are excluded from agency analysis, the agency must
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`fully explain that decision. Id.
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`49.
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`BLM is also required to “describe the environment of the areas to be affected or
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`created by the alternatives under consideration.” 40 C.F.R. § 1502.15. The establishment of the
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`baseline conditions of the affected environment is a fundamental requirement of the NEPA
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`process.
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`50.
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`NEPA also requires the BLM to fully analyze all mitigation measures, their
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`effectiveness, and any impacts that might result from their implementation. NEPA regulations
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`require that the agency’s environmental review: (1) “include appropriate mitigation measures not
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`already included in the proposed action or alternatives,” 40 C.F.R. § 1502.14(f); and (2) “include
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`discussions of: . . . Means to mitigate adverse environmental impacts (if not already covered under
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`1502.14(f)).” 40 C.F.R. § 1502.16(h). The BLM must fully evaluate the effectiveness and impacts
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`of any mitigation measure it adopts or relies upon.
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`51.
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`“All relevant, reasonable mitigation measures that could improve the project are
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`to be identified, even if they are outside the jurisdiction of the lead agency or the cooperating
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`agencies . . . .” Forty Most Asked Questions Concerning CEQ’s National Environmental Policy
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`Act Regulations, 46 Fed. Reg. 18,026, 18,031 (Mar. 23, 1981).
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`52.
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`NEPA requires that BLM review mitigation measures as part of the NEPA process -
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`- not in some future decision shielded from public review. 40 C.F.R. § 1502.16(h).
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`The Federal Land Policy and Management Act (FLPMA)
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`53.
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`FLPMA requires that: “In managing the public lands the Secretary [of Interior]
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`shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue
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`degradation of the lands.” 43 U.S.C. § 1732(b). BLM cannot approve a mining plan of
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`operations that would cause “unnecessary or undue degradation.” 43 C.F.R. §
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`3809.411(d)(3)(iii).
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`54.
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`In addition, BLM must ensure that all operations comply with the Performance
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`Standards found at 43 C.F.R. § 3809.420. See 43 C.F.R. § 3809.5 (definition of UUD, specifying
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`that failing to comply with the Performance Standards set forth at § 3809.420 constitutes UUD).
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`55.
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`The duty to “prevent undue degradation” is “the heart of FLPMA [that] amends
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`and supercedes the Mining Law.” Mineral Policy Center v. Norton, 292 F.Supp.2d 30, 42
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`(D.D.C. 2003). “FLPMA, by its plain terms, vests the Secretary of the Interior [and the BLM]
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`with the authority – indeed the obligation – to disapprove of an otherwise permissible mining
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`operation because the operation, though necessary for mining, would unduly harm or degrade the
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`public land.” Id.
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`56.
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`“FLPMA’s requirement that the Secretary prevent UUD supplements
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`requirements imposed by other federal laws and by state law.” Center for Biological Diversity v.
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`Dept. of the Interior, 623 F.3d 633, 644 (9th Cir. 2010). BLM complies with this mandate “by
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`exercising case-by-case discretion to protect the environment through the process of: (1)
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`approving or rejecting individual mining plans of operation.” Id. at 645, quoting Mineral Policy
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`Center v. Norton, 292 F.Supp.2d 30, 44 (D.D.C. 2003). See also Kendall’s Concerned Area
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`Residents, 129 IBLA 130, 138 (1994) (“If unnecessary or undue degradation cannot be prevented
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`by mitigation measures, BLM is required to deny approval of the plan.”).
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`57.
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`One of the required Performance Standards in Part 3809 mandates that all
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`operations “must take mitigation measures specified by BLM to protect public lands.” 43 C.F.R.
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`§ 3809.420(a)(4). According to the national policy of the Interior Department/BLM, failure to
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`look at a range of alternatives to avoid significant impacts and failure to require mitigation that
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`would reduce adverse Project impacts constitutes UUD. “Mitigation measures fall squarely
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`within the actions the Secretary can direct to prevent unnecessary or undue degradation of the
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`public lands. An impact that can be mitigated, but is not, is clearly unnecessary.” 65 Fed. Reg.
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`69,998, 70,052 (Nov. 21, 2000) (preamble to BLM’s 43 C.F.R. Part 3809 mining
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`regulations)(emphasis added).
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`FACTUAL BACKGROUND
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`58.
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`BLM’s EA summarized the initial permitting history of the Project:
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`American Magnesium submitted a PoO [Plan of Operation] for the proposed project. …
`In April 2017, the proposed project was considered incomplete, and American
`Magnesium updated the PoO in July 2017. In December 2017, the BLM provided
`comments on the revised PoO which detailed additional information required before the
`PoO would be considered complete. Between July 2018 and April 2019, American
`Magnesium revised the PoO two additional times after BLM and MMD [New Mexico
`Mineral and Mining Division] comments.
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`EA at 1.
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`59.
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`During the only public comment opportunity BLM provided for the proposed
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`Project, on June 16, 2020, Plaintiffs’ counsel submitted a detailed comment letter to BLM on
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`behalf of all Plaintiff organizations, specifically noting the various legal and factual errors
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`contained in BLM’s Draft EA for the Project.
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`60.
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`Despite widespread public opposition to the Project, including specific
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`submittals attesting to the fact that BLM failed to provide the required public review under
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`NEPA and FLPMA, BLM issued the EA and FONSI on July 31, 2020. BLM then issued the DR
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`on August 7, which “authorize[d] the proposed action in the attached Environmental Assessment
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`(EA).” DR at 1. The DR was immediately effective upon its issuance. DR at 11.
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`61.
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`The Project would lie at the western edge of the Florida Mountains, which are
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`located in Luna County approximately 12 miles southeast of Deming. This mountain range is
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`characterized by spectacular jagged spires and multicolored cliffs of granite overlain in places by
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`limestone. These rugged mountains rise more than 2,800 feet above the surrounding desert to an
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`elevation of 7,448 feet at Florida Peak, and dominate the landscape for miles around. Gently
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`sloping alluvial fans radiate out from the higher terrain.
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`62.
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`In the EA, at 64, BLM acknowledged the area’s irreplaceable natural features:
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`Outstanding Opportunities for Primitive and Unconfined Recreation
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`The Florida Mountains WSA offers a variety of outstanding primitive recreational
`opportunities, including rock climbing, horseback riding, hunting, birding, photography
`and other naturalist activities (BLM 1991). The Florida Mountains WSA contains rugged
`mountains with steep ridges and canyons that offer opportunity for primitive and
`unconfined recreation in addition to outstanding opportunity for solitude (BLM 1988).
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`63.
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`All of these public values would suffer during