The Ninth Circuit Court of Appeals, sitting en banc, has affirmed a 2-1 panel ruling and rejected a proposed land exchange between Asarco LLC and the Bureau of Land Management (BLM). Ctr. for Biological Diversity v. BLM, No. 07-16423 (9th Cir. 9/23/10).
Under terms of the proposed exchange, Asarco would have given 18 parcels of private land totaling 7,300 acres to BLM, in return for 31 parcels consisting of nearly 11,000 acres. When BLM approved the proposed exchange, the agency determined that it posed no harm to the public because Asarco already owned mining rights to the land it would receive. Several environmental groups unsuccessfully challenged the exchange before a U.S. district court. Finding that BLM had not taken a sufficiently hard look at the environmental impact of the proposed land swap and had violated NEPA by failing to include certain analyses in its final report, a Ninth Circuit panel reversed the district court, and Asarco filed a petition for rehearing before the entire court.
The en banc court ruled that if the proposed exchange did not occur, the land would continue to be owned by the United States, and Asarco would be able to conduct mining operations on the land only if it complied with the Mining Law of 1872. Under that law, Asarco would not be able to conduct a new mining operation on the land without first submitting a Mining Plan of Operations to BLM and obtaining its approval. On the other hand, if the exchange were to occur, Asarco would take ownership of the land and would not be subject to the Mining Law of 1872. Because BLM failed to compare the environmental impacts of exchanging the land with the effects of not exchanging the la