Okanogan Highlands Alliance (OHA) and the Confederated Tribes of the Colville Reservation (Colville) challenged the adequacy of the United States Forest Service's (Forest Service) final environmental impact statement (EIS) prepared for the operation of a gold mine on Buckhorn Mountain in Washington. OHA and Colville argued that the district court and Regional Forester violated the Administrative Procedure Act (APA)[1] by considering post-record of decision (ROD) documents, and that the Forest Service violated the National Environmental Policy Act (NEPA)[2] by inadequately discussing mitigation measures, the Organic Act[3] by failing to select the most environmentally preferable alternative, and its trust obligation by failing to consider Colville's reserved rights. The Ninth Circuit affirmed the district court's ruling in favor of the Forest Service on all the claims.

In 1992, Battle Mountain Gold Company (BMG) proposed a plan for the "development, operation, and eventual closure of a gold mine in an area on and around Buckhorn Mountain in Washington" (the "Project").[4] The Project would affect land administered by the Forest Service, the Bureau of Land Management (BLM), and the Washington Department of Natural Resources, as well as privately owned land. In its EIS the Forest Service discussed seven alternatives. Alternative C proposed that ore be extracted only by underground methods. This was the most environmentally preferable of the action alternatives.[5] Alternative B, which was approved by the Forest Service in its January 1997 ROD, proposed a mine operation plan that included the creation of a large mine-pit and generation of waste-rock that would be disposed of in two permanent disposal areas. After the Regional Forester denied their appeal, OHA and Colville brought this action in district court, which ruled in favor of the Forest Service. On appeal, OHA and Colville argued that 1) the district court and Regional Forester violated the APA by considering documents that were not a part of the administrative record, 2) the Forest Service violated NEPA by failing to adequately discuss mitigation measures in the EIS, and 3) the Forest Service violated its Organic Act by failing to select the most environmentally preferable, but still profitable, alternative. Colville also argued that the Forest Service violated its trust obligation to the tribe.

The Ninth Circuit first determined that the Regional Forester and the district court did not rely on documents that were not part of the administrative record in making their decisions. OHA and Colville argued that an April 1997 economic analysis of Alternative C and a March 1997 stream flow mitigation plan, both submitted by BMG to the Regional Forester, were used in the decisions. However, a remand is only appropriate if "the agency's 'journey outside the record worked substantial prejudice.'"[6] The Ninth Circuit concluded that the Regional Forester only noted the existence of these post-ROD documents, rather than basing his conclusions--that the EIS and ROD were adequate--on them. Similarly, the district court relied solely on the administrative record.

Addressing the alleged NEPA violation, the Ninth Circuit held that the Forest Service adequately discussed mitigation measures in its final EIS. OHA and Colville argued that the EIS and ROD contained inadequate discussion of the measures necessary to mitigate the environmental consequences of the mine-pit lake, the water overflow from the lake, and the waste-rock dumps.[7] According to the Ninth Circuit, the EIS discussed the potential effects of the Project on water quality, the possible environmental effects of (and the possible mitigating measures for) the waste-rock dumps, and the required monitoring measures. The Ninth Circuit determined that the EIS included a reasonable discussion of mitigation, and that the Forest Service took the necessary "hard look" at potential environmental effects and required BMG to monitor for the actual effects of the Project.[8] Although the mitigating measures were described in general terms, the Ninth Circuit stated that "[b]ecause the actual adverse effects are uncertain, and the EIS considered extensively the potential effects and mitigation processes, we conclude that . . . the discussion of mitigating measures in the EIS is adequate."[9] OHA and Colville also argued that the Forest Service improperly "deferred" to state agencies the responsibility of reviewing the mitigation measures. However, the Ninth Circuit held that the Forest Service only acknowledged that the Project must comply with state pollution permitting requirements and that this acknowledgement did not shift the Forest Service's responsibilities to the state agencies.

The Ninth Circuit next determined that the Forest Service did not violate the Organic Act by selecting Alternative B in its ROD. OHA and Colville argued that the Organic Act and implementing regulations required the Forest Service to select Alternative C--the most environmentally preferable alternative. Section 551 of the Organic Act authorizes the Secretary of Agriculture to promulgate regulations "to preserve the [national] forests thereon from destruction."[10] One such regulation provides that "operations authorized by United States mining laws . . . shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources."[11] Section 478 of the Organic Act requires that persons shall be allowed to enter upon National Forest lands for the purpose of lawfully developing mineral resources.[12] The Ninth Circuit recognized these provisions as evidencing "the 'important and competing interests' of preserving forests and protecting mining rights."[13] The Forest Service can reasonably regulate holders of mining claims, but cannot "impermissibly encroach"[14] on legitimate uses of those claims. As a result, the court determined that the Organic Act does not require that environmental interests trump mining interests when the Forest Service must choose between two project alternatives. Further, the regulations relied on by OHA and Colville did not set substantive standards that BMG or the Forest Service could violate. Therefore, the court concluded that the Forest Service did not violate the Organic Act by choosing Alternative B.

Finally, the Ninth Circuit held that the Forest Service did not violate its trust obligation to the Colville Tribes. In 1891, the Colville Indians ceded 1.5 million acres to the United States (the "North Half"), including land on which the Project is located, but reserved hunting and fishing rights on those lands.[15] Over the life of the Project, approximately two thousand acres would be unavailable to Colville's members for hunting and fishing. Colville argued that the Forest Service failed to adequately consider the Tribe's reserved hunting and fishing rights.[16] The court determined that the EIS and ROD sufficiently discussed the Colville's reserved rights. In its EIS, the Forest Service analyzed the Project's potential effects on aquatic and wildlife habitat in the Project area and determined that there would be no adverse effects on fish resources, and that the reduction in deer would be relatively minor compared to the total deer population. The Ninth Circuit concluded that the Forest Service took the necessary "hard look" at issues that would affect Colville's reserved rights. Colville also pointed to an error in the calculation of the tribal deer harvest, which the Forest Service later corrected. The court reasoned that this correction did not render the Forest Service's decision arbitrary and capricious because the Forest Service's decision that Colville's reserved rights would not be substantially affected was not based upon the number of deer harvested. Thus, the Ninth Circuit affirmed the district court's ruling that the Forest Service did not violate the APA, NEPA, the Organic Act, or its trust obligation to the Colville Tribes.