(CN) – The Bureau of Land Management needs to take a harder look at the environmental consequences of a proposed land swap with mining company Asarco, the 9th Circuit ruled. On a 2-1 vote, it overturned a lower court’s approval of the land exchange in Arizona.
In 1994, Asarco suggested giving the government about 7,300 acres of private land in exchange for nearly 11,000 acres of public land.
Most of the land parcels are located near Asarco’s Ray Mine complex in Gila and Pinal counties, Ariz. The open-pit copper mine is the third most productive copper mine in the United States.
The lands chosen for the swap provide wildlife habitat for desert bighorn sheep, endangered desert tortoise, and a variety of threatened and endangered birds.
Asarco and the BLM said they intend to use the land to continue operating the Ray Mine, but also to expand open pits, build roads and deposit ore. They also slated about 16 percent of the land for future mine development.
If the proposed swap occurs, Asarco’s use of the land would not be subject to federal mining regulations. If it doesn’t happen, the government will still own the land, and Asarco couldn’t mine the land unless it complied with the Mining Law of 1872. It would also have to submit detailed plans, including environmental analysis, to the BLM before it could start any new mining projects.
When the BLM approved the land exchange, it assumed that Asarco would continue mining the land in the same manner, whether or not the swap took place.
Its final impact statement “contains no comparative analysis of the environmental consequences for the different alternatives proposed,” Judge William Fletcher wrote for the three-judge panel.
The majority agreed with the Center for Biological Diversity, the Western Land Exchange Project and the Sierra Club that this lack of analysis violated federal environmental law.
“We conclude that substantial evidence in the record does not support the BLM’s assumption that mining would occur in the same manner regardless of the land exchange,” Judge Fletcher wrote.
As a result, the BLM’s lack of comparative analysis and approval of the swap violated the National Environmental Policy Act and the Federal Land Policy and Management Act, the court ruled.
In a 23-page dissent, Judge Richard Tallman said the majority’s opinion “will unquestionably stifle, if not altogether stymie, land exchanges, especially whenever mining companies are involved or mining-related activities are contemplated. Indeed, this judicially created hurdle would be, in application, a brick wall.”
He called his colleagues’ decision “utterly misguided and contrary to the best interests and welfare of the public at large.”