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WLP News No 27

WLP News No 27

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Western LandsUpdate
Western Lands Project Seattle, Washington
Fall 2009     Research, Outreach, and Advocacy to Keep Public Lands Public Vol. 13, No. 2
A
ctivists ghting land exchanges in Arizona andCalifornia received great news this fall whenthe Ninth Circuit Court of Appeals ruled that two land trades violated federal laws.  First, onSeptember 14 the court overturned an ArizonaDistrict Court judge’s decision regarding theproposed Ray Mine land exchange between theBureau of Land Management and the miningcorporation Asarco.  Western Lands Project was aplaintiff in this case, along with the Grand CanyonChapter of the Sierra Club and the Center forBiological Diversity.  Then, on November 10 theappellate court largely upheld a district court opinionthat barred the BLM from exchanging land with theKaiser Corporation near Joshua Tree National Parkto make room for what wouldhave been the country’s largest landll.The proposed
Ray Mine landswap
would have traded almost 11,000 acres of public landsfor about 7,300 acres of landowned by Asarco.  Some of thepublic lands are adjacent toareas of critical environmentalconcern and/or Wilderness,and almost 7,000 acres aredesert tortoise habitat.  Asarcohas several thousand miningclaims on the selected publiclands, and the trade wouldmake it easier for the company to develop those claims andexpand its open-pit Ray Minecomplex, one of the largest copper mines in the UnitedStates.
Two Public Land Victories in the Ninth Circuit 
Our opposition to this exchange dates back to2000, when we led an administrative appeal of theBLM’s decision to move ahead with the proposedswap.  We challenged BLM’s assertion that, becauseAsarco owned mining claims on much of the publicland it wanted, the impacts from mining would bethe same whether or not Asarco obtained outright ownership of the land containing its claims.  We andour co-plaintiffs argued that the Mining Law of 1872imposes sufcient restrictions on mining operationson federal land to at least somewhat limit theirextent if the land remained in public hands. (This isnot to say that the Mining Law is not archaic and indesperate need of reform).  On the other hand, if thetrade were to take place, neither the Mining Law norother federal environmental lawswould apply to Asarco’s mining.The Ninth Circuit sided with us,holding that the BLM had not taken the requisite hard look at the no-action alternative.  Underthe Mining Law, Asarco would berequired to submit one or moreMining Plans of Operations forBLM’s review and approval if it wished to proceed with miningin the absence of the land trade.
Joshua Tree Photo: Western Lands Project Continued next page 
 
Continued from page 1
We have fallen heirs to the most glorious heritage a people ever received, and each one must do his part if we wish to show that the nation is worthy of its good fortune.Theodore Roosevelt 
The Ninth Circuit found it highly likely this process would substantially affect themanner in which mining operations tookplace on the public lands.  The court alsoheld that the BLM’s determination that theproposed swap was in the public interest was rendered arbitrary by the agency’sfaulty assumption that the impacts of mining would be the same if the trade werenot consummated.The second great Ninth Circuit decisioninvolved a proposed swap between the BLMand
Kaiser Eagle Mountain
, a subsidiary of the Kaiser Corporation that wishes toestablish the nation’s largest landll withinsight of Joshua Tree National Park.  Donnaand Larry Charpied, longtime friends of Western Lands Project, were the plaintiffsin one of two suits against the BLMthat were consolidated as
National Parks Conservation Ass’n v. Kaiser Eagle Mountain 
.Donna and Larry, who run an organicjojoba farm in the Chuckwalla Valley, havebeen ghting the landll proposal fortwenty years.Kaiser has sought to use its former mininglands near Joshua Tree to build a landllthat would serve Los Angeles and otherparts of southern California.  For thelandll to be feasible, the company wouldneed to acquire adjacent public landsvia trade with the BLM.  The facts of thiscase parallel those of 
Desert Citizens Against Pollution v. Bisson 
,  a Ninth Circuit casefrom 2000. In both cases, the appraisals of the selected public lands failed to considera landll as the highest and best use of thelands, despite its being the primary purposeand need for the proposals.The court also ruled in favor of theplaintiffs’ claims that BLM had 1) toonarrowly drawn the project’s purpose andneed, 2) failed to analyze a reasonablerange of alternatives to the proposedaction, and 3) not taken the necessary hardlook at the impacts of eutrophication, theintroduction of excessive nutrients to anenvironment.  Here, stray waste materialand nitrogen-bearing airborne emissionshad the potential to disrupt the fragileMojave Desert ecosystem surrounding thelandll.Despite the encouraging rulings, in neithercase is a permanent victory assured.Both opinions had lengthy, impassioneddissentsthe Ray Mine dissent opened withthe canary-in-a-coal mine analogy while theKaiser Eagle Mountain dissent comparedKaiser’s travails to those of Homer’sUlyssesthat practically begged for enbanc review by a larger panel of NinthCircuit judges.
Western Lands Update           2   Fall 2009
 
A
t the center of the book
“Bargaining for Eden: The Fight for the Last Open Spaces in America,” 
the Utah-based writer andphotographer Stephen Trimble placesthe story of the Snowbasin land exchange,a public land scandal of epic proportions.With this trade, Earl Holding, billionaireowner of Sinclair Oil, Sun Valley Resort,and Little America, obtained 1,300 acresof national forest land to expand hisSnowbasin ski area near Ogden, Utah.From the time he purchased the ski areain 1984, Holding wanted a land exchangethat would enable him to develop lodges,condos, and homesites around the skiarea. After many years of struggling witha skeptical Forest Service, he nally got what he wanted through the rich man’sshortcutthe U.S. Congress. Branding hisresort expansion as critical to Salt LakeCity’s 2002 Olympic Winter Games (whichit patently was not), the Utah delegationhappily did Holding’s bidding with passageof a bill that waived environmental laws andbent the land appraisal rules in his favor.The exchange represented a loathsometrampling of both the public interest andthe fragile environment of Mount Ogden.
Bargaining for Eden 
covers theintricacies of the land trade inimpressive detail, and much of thestory is told through portraits of theoperators, activists, and bureaucratsinvolved.  Trimble then takes off into both narrower and widerterritory. His own purchase of aparcel of land in southern Utah’sred rock country and constructionof a second home prompts himto examine his new status as adeveloper. It also puts him at thevirtual Center of the Universe of ruraland public land politicsextraction vs.preservation, locals vs. transplants, conict vs. consensus. He uses both his knowledgeof the Snowbasin deal and experiences inhis new community to illustrate the forcesroiling around land use in the West.Even as he weighs the competingphilosophies around him, Trimbleconsistently asserts his own strong belief inthe value of the commons. “In the UnitedStates, where we have retained much of ourwild country as public land, every citizen of the democracy shares in the wealth of thisland. On this scale we are all wealthy.”
A book about the real west 
Published by the University of California Press, “Bargaining for Eden” has just won the Utah Book Award and is now available in paperback.
Books by the Western Lands Project 
“Commons or Commodity? The Dilemma of Federal Land Exchanges” by George Draffan & Janine Blaeloch 
We now oer ourthree publicationsas ree PDF fles.Contact us at ino@westernlands.org torequest any or all.
“Carving Up the Commons: Congress and Our Public Lands,” by Janine Blaeloch “The Citizens’ Guide to Federal Land Exchanges: A Manual for Public Lands Advocates” by Janine Blaeloch 
Western Lands Update           3   Fall  2009

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