                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 27 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TE-MOAK TRIBE OF WESTERN                         No. 12-15412
SHOSHONE INDIANS OF NEVADA;
TIMBISHA SHOSHONE TRIBE;                         D.C. No. 3:08-cv-00616-LRH-
WESTERN SHOSHONE DEFENSE                         WGC
PROJECT; GREAT BASIN RESOURCE
WATCH,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

  v.

U.S. DEPARTMENT OF THE
INTERIOR; BUREAU OF LAND
MANAGEMENT; GERALD M. SMITH,
District Manager, Battle Mountain Field
Office,

              Defendants - Appellees,

BARRICK CORTEZ, INC.,

              Defendant-intervenor -
Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Argued and Submitted September 19, 2013
                            San Francisco, California

Before: SCHROEDER, TASHIMA, and BERZON, Circuit Judges.

      Plaintiffs-Appellants Te-Moak Tribe of Western Shoshone Indians of

Nevada, Timbisha Shoshone Tribe, Western Shoshone Defense Project, and Great

Basin Resource Watch (“the Tribes”) appeal the district court’s order granting

summary judgment in favor of Defendants-Appellees the Bureau of Land

Management (“BLM”) and Barrick Cortez, Inc. (“Cortez”). The Tribes contend

that BLM’s approval of the Cortez Mine Expansion Project (“the Project”) violated

both the Federal Land Policy and Management Act (“FLPMA”) and the National

Environmental Policy Act (“NEPA”). We affirm.

      A.    FLPMA Claim Regarding Sacred Sites.

      The Tribes first argue that BLM violated FLPMA by failing to accommodate

religious uses of the Project area. FLPMA requires BLM to administer public

lands in accordance with “principles of multiple use and sustained yield,” while

enforcing environmental laws relating to the use of public lands. 43 U.S.C.

§ 1732(a), (b); Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1220 (9th

Cir. 2011). As part of its duties under FLPMA, BLM must take “any action

necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C.



                                         2
§ 1732(b).

      For purposes of this case, “unnecessary or undue degradation” is “any

harmful activity that is either not ‘reasonably incident’ to an approved mining

operation or that violates a state or federal law relating to environmental or cultural

resource protection.” S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t

of the Interior, 588 F.3d 718, 723–24 (9th Cir. 2009); see also 43 C.F.R. § 3809.5.

      In our prior opinion, we rejected the Tribes’ claim that the whole of Mount

Tenabo was a sacred site for purposes of Executive Order 13007 (“E.O. 13007”).

S. Fork Band Council, 588 F.3d at 724. In this appeal, the Tribes argue that the

pediment area of piñon-juniper groves at the base of Mount Tenabo is a sacred site

within the meaning of E.O. 13007, and that the Project will interfere with religious

uses of that area.

      E.O. 13007 provides that BLM “shall, to the extent practicable, permitted by

law, and not clearly inconsistent with essential agency functions, (1) accommodate

access to and ceremonial use of Indian sacred sites by Indian religious practitioners

and (2) avoid adversely affecting the physical integrity of such sacred sites.” 61

Fed. Reg. 26771 (May 24, 1996). Although E.O. 13007 has no force and effect on

its own, see id., its requirements are incorporated into FLPMA by virtue of




                                           3
FLPMA’s prohibition on unnecessary or undue degradation of the lands, see 43

U.S.C. § 1732(b); 43 C.F.R. § 3809.5.

      BLM studied the Project’s effects for over two years, consulting with

fourteen tribes and tribal organizations and reviewing several surveys of religious

practices in the Mount Tenabo region. S. Fork Band Council, 588 F.3d at 724. The

surveys described the cultural significance of the pediment area, including its

importance for pine nut harvesting, but could not identify particular locations that

were of greater cultural significance than others. The surveys also described the

religious significance of the pediment region due to its proximity to Mount

Tenabo. The surveys did not, however, indicate that the area that will be disturbed

by the Project is an area used for religious ceremonies.

      BLM’s study of the Project resulted in over seventy pages of the

Environmental Impact Statement (“EIS”) devoted to consideration of the impacts

on the Tribes’ religious practices. Id. BLM reduced the original scope of the

Project in response to the Tribes’ concerns and agreed to continue consulting with

the Tribes regarding the Project’s impacts. Id. To mitigate the Project’s impacts,

BLM required that mining facilities avoid the most religiously and culturally

significant areas, including the top of Mount Tenabo, the White Cliffs, the Cortez

town site, and Shoshone Wells.


                                          4
      A sacred site is any “specific, discrete, narrowly delineated location” of

“established religious significance” or “ceremonial use.” 61 Fed. Reg. 26771. The

Tribes point to comments from members of the Tribes and Tribal organizations

regarding religious uses of the Project area. The Tribes’ references, however, are

personal in their description of practices and general in terms of location. They do

not describe established practices. Moreover, E.O. 13007 requires only that sacred

sites be accommodated “to the extent practicable.” Id. BLM determined that

further accommodation was not practicable given the lack of specificity as to

location and as to the number of Tribal members who use any particular site on the

pediment for religious activities. We see no arbitrary or capricious agency action

in relation to BLM’s obligation under E.O. 13007 to accommodate the use of

sacred sites.

      B.        FLPMA and NEPA Claims Regarding Dewatering.

      The Tribes next contend that BLM violated FLPMA and NEPA by failing to

adequately analyze the Project’s impacts on water resources. FLPMA requires that

BLM avoid unnecessary or undue degradation of public lands, 43 U.S.C.

§ 1732(b), and NEPA requires that BLM consider measures that may mitigate the

adverse impacts of a proposed project, 40 C.F.R. §§ 1502.14(f), 1502.16(h). The

Tribes argue that BLM failed to address mitigation measures specific to ground


                                         5
water in situ, failed to propose new mitigation measures relating to surface water

resources, and failed to consider the religious use and significance of water in the

Mount Tenabo region.

      Because the Tribes did not raise the issue of mitigation measures specific to

ground water in situ during the initial or supplemental EIS public comment

periods, they have waived this challenge. See Dep’t of Transp. v. Pub. Citizen, 541

U.S. 752, 764–65 (2004); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.

1991). As for mitigation measures relating to surface water resources, BLM

proposed a detailed water resources mitigation plan and analyzed the effectiveness

of that plan in accordance with our prior opinion. See S. Fork Band Council, 588

F.3d at 727. Finally, BLM did in fact consider the religious significance of water

in the Mount Tenabo region, but the Tribes did not identify religious uses of any

particular springs or seeps within the Project area. BLM’s analysis of the Project’s

impacts on water resources was not arbitrary or capricious.

      AFFIRMED.




                                          6
                                                                                 FILED
      Judge Berzon’s dissent.                                                    MAR 27 2014

Te-Moak Tribe of W. Shoshone Indians of Nevada v. U.S. Dept. of Interior, No.C. DWYER, CLERK
                                                                       MOLLY
                                                                               12-
                                                                        U.S. COURT OF APPEALS
15412

      I dissent as to whether the Bureau of Land Management (“BLM”) violated

the Federal Land Policy and Management Act (“FLPMA”). The FLPMA, as the

majority states, incorporates the requirements of Executive Order 13007 (“E.O.

13007”) with regard to the accommodation of Indian use of sacred sites.

      The BLM’s analysis of why E.O. 13007 did not apply was faulty for three

reasons: the analysis failed to recognize that comments regarding the proposal did

point to the area where the mine is being built as an area in which worship occurs;

it demanded quantification of that use as a condition of Executive Order coverage,

when no such quantification is necessary; and it required greater specificity of

location than comports with Shoshone religious practices. As to the last point, to

require greater specificity would interfere with Shoshone religious practices, as

those practices appear to regard certain recognized natural areas, rather than

specific set locations, as places for worship.

      I therefore would hold the BLM’s conclusions arbitrary and capricious and

remand for further proceedings.
