Emergency Application — Gouyen Brown Lopez, et al., Applicants v. United States, et al.

Supreme Court briefMar 14, 2026

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No. 26A____

In the Supreme Court of the United States

GOUYEN BROWN LOPEZ, SINETTA LOPEZ, on behalf of herself and her minor child

L.B., NOMIE BROWN, AND ANGELA KINSEY, on behalf of herself and her minor

children V.K. and M.K.,

Applicants,

UNITED STATES OF AMERICA; U.S. DEPARTMENT OF AGRICULTURE; U.S. FOREST

SERVICE; BROOKE ROLLINS, in her official capacity as Secretary of Agriculture; AND

TOM SCHULTZ, in his official capacity as Chief of the U.S. Forest Service,

Respondents,

RESOLUTION COPPER MINING, LLC,

Intervenor-Respondent.

To the Honorable Elena Kagan, Associate Justice of the United States

Supreme Court and Circuit Justice for the Ninth Circuit

APPENDIX OF EXHIBITS

JEFFREY A. WALD

NELSON MULLINS RILEY

& SCARBOROUGH LLP

380 Knollwood Street, Suite 530

Winston-Salem, NC 27103

MADELINE C. BERGSTROM

NELSON MULLINS RILEY

& SCARBOROUGH LLP

101 Constitution Ave. NW, Suite 900

Washington, DC 20001

MILES COLEMAN

Counsel of Record

NELSON MULLINS RILEY

& SCARBOROUGH LLP

2 W. Washington St., Suite 400

Greenville, SC 29601

(864) 373-2352

miles.coleman@nelsonmullins.com

APPENDIX TABLE OF CONTENTS

APPENDIX EXHIBIT 1: District Court of Arizona, Decision

(Aug. 17, 2025) ................................................................................................ App.1a

APPENDIX EXHIBIT 2: District Court of Arizona,

Preliminary Injunction Order (Aug. 15, 2025) .............................................App.21a

APPENDIX EXHIBIT 3: Second Declaration of Miles E. Coleman

(Doc. 40-1) (Aug. 11, 2025) ......................................................................... App.115a

APPENDIX EXHIBIT 4: Ex. A, Federal Regulation (Doc. 40-2)

(Aug. 11, 2025) ............................................................................................. App.118a

APPENDIX EXHIBIT 5: Ex. B, Department of the Interior Letter

(Doc. 40-3) (Aug. 11, 2025) .......................................................................... App.124a

APPENDIX EXHIBIT 6: Ex. C, United States Geological Survey

Copper Data (Doc. 40-4) (Aug. 11, 2025) .................................................... App.130a

APPENDIX EXHIBIT 7: Ex. D, White House, Addressing the Threat

to National Security from Imports of Copper (Doc. 40-5)

(Aug. 11, 2025) ............................................................................................. App.133a

APPENDIX EXHIBIT 8: Ex. E, Heinke et al., Geology & Exploration

(Doc. 40-6) (Aug. 11, 2025) .......................................................................... App.139a

APPENDIX EXHIBIT 9: Ex. F, White House, Immediate Measures

to Increase American Mineral Production (Doc. 40-7)

(Aug. 11, 2025) ............................................................................................. App.160a

APPENDIX EXHIBIT 10: Ex. G, White House, Fact Sheet (Doc. 40-8)

(Aug. 11, 2025) ............................................................................................. App.169a

APPENDIX EXHIBIT 11: Ex. H, Comments from the Center for Science

(Doc. 40-9) (Aug. 11, 2025) .......................................................................... App.174a

APPENDIX EXHIBIT 12: Ex. 1, USDA Letter to Reid Nelson (Doc. 33-1)

(Aug. 5, 2025) ............................................................................................... App.187a

APPENDIX EXHIBIT 13: Declaration of Gouyen Brown Lopez (Doc. 15-2)

(July 25, 2025) ............................................................................................. App.196a

APPENDIX EXHIBIT 14: Declaration of Sinetta Lopez (Doc. 15-3)

(July 25, 2025) ............................................................................................. App.204a

APPENDIX EXHIBIT 15: Declaration of Nomie Brown (Doc. 15-4)

(July 25, 2025) ............................................................................................. App.209a

APPENDIX EXHIBIT 16: Declaration of Angela Kinsey (Doc. 15-5)

(July 25, 2025) ............................................................................................. App.214a

APPENDIX EXHIBIT 17: Declaration of Miles E. Coleman (Doc. 15-6)

(July 25, 2025) ............................................................................................. App.219a

APPENDIX EXHIBIT 18: Ex. 1 to Declaration of Miles E. Coleman

(Doc. 15-7) (July 25, 2025)........................................................................... App.220a

APPENDIX EXHIBIT 19: Ninth Circuit Decision

(March 13, 2026) .......................................................................................... App.278a

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Gouyen Brown Lopez, et al.,

No. CV-25-02758-PHX-DWL

Plaintiffs,

ORDER

United States of America, et al.,

Defendants.

Pending before the Court are Plaintiffs’ motion for a preliminary injunction (Doc.

15) and Plaintiffs’ emergency motion for an injunction pending appeal (Doc. 43). For the

reasons that follow, both motions are denied.

RELEVANT BACKGROUND

Overview Of SALECA

In 2014, as part of the National Defense Authorization Act for Fiscal Year 2015

(“NDAA”), Congress enacted the Southeast Arizona Land Exchange and Conservation Act

(“SALECA”). SALECA authorizes the exchange of 2,422 acres of federal land in the

Tonto National Forest for land held by a private company, Resolution Copper (“Resolution

Copper”). The federal land to be transferred to Resolution Copper includes an Apache

ceremonial ground called Chí’chil Biłdagoteel. That area, known in English as Oak Flat,

“is a site of great spiritual value to the Western Apache Indians, who believe that it is

indispensable to their religious worship,” but “also sits atop the world’s third-largest

deposit of copper ore.” Apache Stronghold v. United States, 101 F.4th 1036, 1044 (9th

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Cir. 2024) (en banc). Congress’s intent in authorizing the land exchange was “[t]o take

advantage of that deposit” by enabling Resolution Copper to “mine the ore.” Id.

Under SALECA, the United States Forest Service (“Forest Service”) must prepare

an environmental impact statement “[p]rior to conveying Federal land,” and the Forest

Service must then convey that land to Resolution Copper “[n]ot later than 60 days after

publication.” 16 U.S.C. § 539p(c)(9)(B), (c)(10).

On January 15, 2021, the Forest Service published what was, at the time, the final

environmental impact statement (“FEIS”). Thus, under SALECA, the land exchange was

required to occur within the next 60 days, i.e., by March 16, 2021.

II.

The Three Earlier Lawsuits Challenging The Land Exchange

In early 2021, three sets of plaintiffs filed lawsuits in the District of Arizona, each

seeking a preliminary injunction to preclude the land exchange from going forward.

In the first-filed action, Apache Stronghold v. United States et al., No. 21-cv-50-

PHX-SPL (hereinafter, “Apache Stronghold”), the plaintiff—a nonprofit organization

formed to preserve and protect American Indian sacred sites—alleged that the land

exchange would violate the rights of members of the San Carlos Apache Tribe (“the Tribe”)

under the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration

Act (“RFRA”), and an 1852 treaty between the United States and the Tribe. The procedural

history of Apache Stronghold is complex, but the relevant developments are as follows.

Apache Stronghold

On February 12, 2021, Judge Logan denied the plaintiff’s motion for a preliminary

injunction, concluding that the plaintiff had not established a likelihood of success or even

serious questions going to the merits of its claims. (Apache Stronghold, Doc. 57.) The

plaintiff appealed, and on February 22, 2021, Judge Logan denied the plaintiff’s motion

for an injunction or stay pending appeal. (Apache Stronghold, Doc. 64.)

On March 1, 2025—only 15 days before the 60-day transfer deadline was to

expire—the Forest Service rescinded the FEIS. (Apache Stronghold, Doc. 80 at 1 n.1.) As

a result, on March 5, 2021, the Ninth Circuit motions panel (over the dissent of Judge

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Bumatay) denied the plaintiff’s emergency motion for an injunction pending appeal,

concluding that the request was “premature” in light of the recission of the FEIS. Apache

Stronghold v. United States, 2021 WL 12295173, *1 (9th Cir. 2021).

On June 24, 2022, the Ninth Circuit three-judge merits panel (over the dissent of

Judge Berzon) affirmed the denial of the motion for a preliminary injunction, agreeing with

Judge Logan that the plaintiff was unlikely to succeed on its RFRA, Free Exercise, and

treaty-based claims. Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022).

However, the Ninth Circuit then voted to rehear the case en banc.

On May 14, 2024, the en banc court issued an amended 6-5 decision that again

affirmed the denial of the motion for a preliminary injunction due to the plaintiff’s failure

to establish a likelihood of success on the merits. Apache Stronghold v. United States, 101

F.4th 1036 (9th Cir. 2024) (en banc).

On May 27, 2025, the Supreme Court (over the dissent of Justices Gorsuch and

Thomas) denied the plaintiff’s petition for certiorari. Apache Stronghold v. United States,

145 S. Ct. 1480 (2025).

On June 23, 2025, the plaintiff filed a petition for rehearing with the Supreme Court,

arguing that the Court should defer ruling on the petition for certiorari pending the issuance

of the Court’s decision in Mahmoud v. Taylor.

On June 27, 2025, the Supreme Court decided Mahmoud v. Taylor, 145 S. Ct. 2332

(2025).

On July 3, 2025, Plaintiff filed a supplemental brief seeking a GVR (i.e., grant,

vacate, and remand order) in light of Mahmoud.

As of today, August 17, 2025, the Supreme Court has not taken action on those

requests.1

…

The Supreme Court docket contains links to the recent filings identified above.

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24291.html.

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The other two actions filed in 2021 were San Carlos Apache Tribe v. United States

Forest Service et al., No. 21-cv-68-PHX-DWL (hereinafter, “San Carlos”), and Arizona

Mining Reform Coalition v. United States Forest Service et al., No. 21-cv-122-PHX-DWL

(hereinafter, “AMRC”). Both actions were eventually assigned to the undersigned judge.

In each action, the plaintiffs filed a motion for a preliminary injunction in early 2021

but then withdrew the motion based on the March 1, 2021 recission of the FEIS. (San

Carlos, Docs. 29, 42; AMRC, Docs. 9, 29.) Both cases were then stayed pending the

reissuance of the FEIS. (San Carlos, Doc. 47; AMRC, Doc. 35.)

San Carlos And AMRC

On June 20, 2025, the Forest Service published a new version of the FEIS. Thus,

under SALECA, the land exchange must occur within the next 60 days, i.e., by August 19,

2025. 16 U.S.C. § 539(c)(10). For reasons that are unnecessary to detail here, the Court

issued an order precluding the Forest Service from proceeding with the land exchange until

the very last day of that period, August 19, 2025. (San Carlos, Doc. 99; AMRC, Doc. 81.)

Following the publication of the new FEIS, the plaintiffs in San Carlos and AMRC

filed amended complaints and new motions for a preliminary injunction. (San Carlos,

Docs. 104, 105; AMRC, Docs. 86, 87.) Presumably in light of the developments in Apache

Stronghold, those motions did not raise any RFRA, Free Exercise, or treaty-based claims.

Instead, the claims underlying those motions fell into the following four categories:

• Appraisal Claims: Under SALECA, the Forest Service must perform an appraisal

to calculate the value of the federal and non-federal land to be exchanged. 16 U.S.C.

§ 539p(c)(4). SALECA also creates an “equalization process” providing that if the federal

land is more valuable than the non-federal land, Resolution Copper must make up the

difference by conveying additional land and/or “mak[ing] a cash payment.”

§ 539p(c)(5)(B)(i). AMRC argued that the Forest Service violated its appraisal-related

duties under SALECA by failing to account for the value of the copper deposits underlying

one of the federal parcels to be exchanged, known as the Mining Claim Zone (“MCZ”)

parcel—an omission that, according to AMRC, resulted in the Forest Service “low-

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Id.

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ball[ing] the appraised value” of that parcel by potentially billions of dollars. (AMRC, Doc.

97 at 10.)

• NEPA Claims: SALECA provides that “[p]rior to conveying Federal land under

this section, the Secretary [of Agriculture] shall prepare a single environmental impact

statement under the National Environmental Policy Act of 1969 [‘NEPA’], which shall be

used as the basis for all decisions under Federal law related to the proposed mine and the

Resolution mine plan of operations and any related major Federal actions significantly

affecting the quality of the human environment, including the granting of any permits,

rights-of-way, or approvals for the construction of associated power, water, transportation,

processing, tailings, waste disposal, or other ancillary facilities.”

§ 539p(c)(9)(B). In their motions, AMRC and the Tribe identified an array of perceived

NEPA-related shortcomings and omissions in the FEIS.

16 U.S.C.

• Consultation Claims: SALECA provides that “[t]he Secretary shall engage in

government-to-government consultation with affected Indian tribes concerning issues of

concern to the affected Indian tribes related to the land exchange.”

§ 539p(c)(3)(A). Additionally, under section 106 of the National Historic Preservation Act

(“NHPA”), agencies “shall take into account the effect of an undertaking on any historic

property” and afford the Advisory Council on Historic Preservation (“ACHP”) “a

reasonable opportunity to comment with regard to the undertaking.” Tohono O’odham

Nation v. U.S. Dept. of the Interior, 138 F.4th 1189, 1193 (9th Cir. 2025) (cleaned up). In

its motion, the Tribe argued that the Forest Service did not fulfill these consultation duties

before publishing the FEIS.

16 U.S.C.

• NFMA Claims: The National Forest Management Act (“NFMA”) includes a

provision that requires the Forest Service to prepare a land and resource management plan

for each national forest. 16 U.S.C. § 1604(a). Such a plan exists for the Tonto National

Forest (the “Forest Plan”) and was last amended in 2023. In the FEIS, the Forest Service

acknowledges that some of the contemplated mining-related activities will occur within the

Tonto National Forest and thus require an amendment of the Forest Plan (San Carlos, Doc.

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105-9 at 11, 54), and the draft record of decision (“DROD”) proposes 16 amendments to

the Forest Plan that would be required for approving Skunk Camp as the preferred tailings

storage facility alternative (AMRC, Doc. 87-3 at 19-25). In its motion, AMRC argued that

this approach violates NFMA’s forest planning regulations, which appear at 36 C.F.R. Part

219, because those regulations require a public notice-and-comment process “which did

not occur here” before any forest plan may be amended. (AMRC, Doc. 87 at 28.)

On August 6, 2025, soon after the preliminary injunction motions became fully

briefed, the Court held a lengthy motion hearing in San Carlos and AMRC.

On August 15, 2025, the Court issued a 94-page order (hereinafter, “the August 15,

2025 order”) denying both preliminary injunction motions. (San Carlos, Doc. 124; AMRC,

Doc. 99.) The August 15, 2025 order also specified that that the Court would deny the

plaintiffs’ requests for an injunction pending appeal. (Id.)

That same day, both sets of plaintiffs filed interlocutory appeals. (San Carlos, Doc.

125; AMRC, Doc. 100.)

III.

This Action

On July 24, 2025, Plaintiffs initiated this action in the United States District Court

for the District of Columbia. (Doc. 1.)

On July 25, 2025, there was a flurry of activity. Among other things, the Federal

Defendants moved to transfer this action to the District of Arizona (Doc. 7), Resolution

Copper moved to intervene (Doc. 10) and filed a separate transfer request (Doc. 12), and

Plaintiffs moved for a preliminary injunction (Doc. 15).

On August 1, 2025, Judge Kelly granted Resolution Copper’s intervention request,

set a briefing schedule on the preliminary injunction motion (with Defendants’ responses

due by August 5, 2025 and Plaintiffs’ reply due by August 11, 2025), and granted

Defendants’ transfer requests. In the memorandum explaining the transfer decision, Judge

Kelly noted, among other things, that Plaintiffs’ conduct “raises the specter of forum-

shopping” because the Ninth Circuit’s decision in Apache Stronghold “would appear to

doom many of their First Amendment and RFRA claims.” (Doc. 28 at 6.)

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On August 5, 2025, after the transfer was processed, the undersigned held a

telephonic status conference with the parties. (Doc. 34.) Among other things, the Court

authorized the parties to file oversized briefs and explained that “because many of the

matters in this case seem to overlap with some of the arguments that are already being

raised in the two cases that are previously before me that I’ll be having the [preliminary

injunction] hearing tomorrow in, it’s not entirely clear to me that we’re going to need to

hold a separate hearing in this case. . . . I’m obviously going to be hard at work after the

hearing tomorrow working on the order in the other two cases. It seems to me that by the

time the reply comes in on this case on August 11th, I’ll have a much better sense on

whether an additional hearing is needed. So I’d be inclined to not schedule a hearing at

this time . . . .”2

DISCUSSION

The issues raised here overlap significantly with the issues raised in the preliminary

injunction briefing in San Carlos and AMRC. In the interest of brevity, the Court thus

incorporates, by reference, the analysis set forth in the August 15, 2025 order concerning

the applicable standards, the unique features of SALECA, and the complexities raised by

Defendants’ jurisdictional and threshold challenges.

The First Winter Factor

As discussed in the August 15, 2025 order, the first Winter factor addresses whether

Plaintiffs have shown a likelihood of success on the merits or at least serious questions

going to the merits.

Plaintiffs’ first argument is that they are likely to succeed on a RFRA-based

challenge to the land exchange. (Doc. 15-1 at 16-23.) Plaintiffs’ supporting arguments

rest on the premise that “the en banc majority’s” RFRA analysis in Apache Stronghold was

RFRA And Free Exercise Claims

To that end, the Court had hoped to finalize and issue this order by August 15, 2025,

concurrently with the order in San Carlos and AMRC, and made substantial efforts to do

so. Unfortunately, due to the complexity and sheer volume of the number of issues raised

in those two cases and in this case, the finalization of this order took some extra time.

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wrong. (Id.) Likewise, in their reply, Plaintiffs cite “Justices Gorsuch and Thomas’s

persuasive criticism of Apache Stronghold’s substantial-burden holding” and argue that

Apache Stronghold’s RFRA analysis “should be rejected by the Ninth Circuit or the

Supreme Court.” (Doc. 40 at 6-7.)

Whatever force those arguments may have had when this action was pending in the

District of Columbia (and thus governed by the law of the D.C. Circuit), they are unavailing

now that it has been transferred to the District of Arizona (and thus governed by the law of

the Ninth Circuit). In Apache Stronghold, the Ninth Circuit rejected—albeit by a narrow

margin—a RFRA-based challenge to the land exchange that is effectively the same as the

RFRA-based challenge being advanced here. It may be true, as Plaintiffs emphasize, that

“six federal appellate judges and two Supreme Court Justices” have disagreed with the

majority’s RFRA analysis (Doc. 15-1 at 19), but it still represents the law of the Ninth

Circuit. Accordingly, it is binding here. Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933

(9th Cir. 1981) (“District courts are bound by the law of their own circuit . . . no matter

how egregiously in error they may feel their own circuit to be.”).

Plaintiffs’ second argument is that they are likely to succeed on a challenge under

the Free Exercise Clause. (Doc. 15-1 at 24-27.) This argument is once again foreclosed

by Ninth Circuit law, as Apache Stronghold held—albeit once again by a slim margin—

that the plaintiff had “no likelihood of success on its Free Exercise claim.” Apache

Stronghold, 101 F.4th at 1055. In support, the court cited “the Supreme Court’s controlling

decision in” Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. (1988).

Id. at 1049. The court concluded that “[t]he project challenged here is indistinguishable

from that in Lyng.” Id. at 1051.

In their reply, Plaintiffs contend that Apache Stronghold’s Free Exercise analysis is

no longer good law in light of the Supreme Court’s subsequent decision in Mahmoud v.

Taylor, 145 S. Ct. 2332 (2025). (Doc. 40 at 9-11.) Plaintiffs are unlikely to succeed on

this argument. In the Ninth Circuit, “a district court or a three-judge panel” is only “free

to reexamine the holding of a prior panel in light of an inconsistent decision by a court of

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last resort” when “the relevant court of last resort [has] undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the cases are clearly

irreconcilable.” Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). As

Defendants correctly point out (Doc. 33 at 11-12; Doc. 38 at 9-11), Mahmoud likely does

not satisfy this demanding “clearly irreconcilable” standard for a host of reasons, including

that Mahmoud did not purport to overrule or limit Lyng. Mahmoud, 145 S. Ct. at 2356-57

(“We are also unpersuaded by the Board’s reliance . . . on our decisions in [Bowen] and

Lyng . . . . These cases have no application here.”).3

Given these conclusions, it is unnecessary to address Defendants’ other bases for

challenging Plaintiffs’ RFRA and Free Exercise claims. In light of Apache Stronghold,

Plaintiffs have not established a likelihood of success on those claims or even serious

questions going to the merits of those claims.

Plaintiffs’ third argument is that the FEIS “violates NEPA in two respects: (1) it

exceeds NEPA’s clear length limit; and (2) it fails to comply with NEPA’s requirement to

consider reasonable alternatives.” (Doc. 15-1 at 28.)

NEPA Claims

Page Limit

As a threshold matter, although the Court concluded in the August 15, 2025 order

that none of the NEPA-related challenges in San Carlos and AMRC were likely to satisfy

the “final agency action” requirement, the analysis as to Plaintiffs’ page-limit challenge

may be different. The Forest Service has now made a final decision regarding the length

of the FEIS, and that particular decision is not tentative or subject to revision in the final

record of decision (“ROD”).

Nevertheless, Plaintiffs are unlikely to succeed on the merits of their page-limit

challenge. As background, in 2023, as part of the Building U.S. Infrastructure through

As noted in earlier portions of this order, there is a pending GVR request before the

Supreme Court in Apache Stronghold that is premised on Mahmoud. This Court obviously

expresses no opinion on how the Supreme Court will or should resolve that request and

confines its analysis to the limited “clearly irreconcilable” inquiry contemplated by Miller.

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Limited Delays & Efficient Reviews (“BUILDER”) Act, Congress amended NEPA in

various ways. One of the new provisions enacted as part of the BUILDER Act provides as

follows:

(e)

Page Limits

(1)

Environmental impact statements

(A)

In general

Except as provided in subparagraph (B), an environmental

impact statement shall not exceed 150 pages, not including any

citations or appendices.

(B)

An environmental impact statement for a proposed agency

action of extraordinary complexity shall not exceed 300 pages,

not including any citations or appendices.

Extraordinary complexity

42 U.S.C. § 4336a(e). Recently, the Supreme Court cited this provision when explaining

that “federal law now strictly prohibits an agency’s EIS from going on endlessly.” Seven

Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497, 1512 n.3 (2025).

Plaintiffs contend the FEIS violates § 4336a(e) because it includes 1,010 pages of

substantive text, not including appendices. (Doc. 15-1 at 28.) Defendants respond that

§ 4336a(e) is inapplicable because the FEIS preparation-process began long before

§ 4336a(e) was enacted and statutes ordinarily apply only prospectively. (Doc. 33 at 1213; Doc. 38 at 18-19.) Resolution Copper further notes that, under the Department of

Agriculture’s regulations, the new procedural limitations enacted as part of the BUILDER

Act only apply to new projects or projects in the early stage of development: “USDA

subcomponents also have the discretion to begin applying the USDA NEPA regulations,

as revised, effective immediately upon publication of this interim final rule where it makes

sense to do so for new proposals and applications, or for existing proposals or applications

that are in the early stages of the applicable NEPA process and can easily transition to using

the revised USDA NEPA regulations.” 90 Fed. Reg. 29,632, 29,644 (July 3, 2025).

It is unclear whether § 4336a(e) applies here.

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Although the canon against

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retroactivity is likely inapplicable for the reasons identified in Plaintiffs’ reply—as

Plaintiffs note, “if a provision is . . . procedural, a presumption in favor of retroactive

application attaches,” Chenault v. USPS, 37 F.3d 535, 538 (9th Cir. 1994)—it must not be

overlooked that the unique form of FEIS required by SALECA differs from the sort of

FEIS ordinarily contemplated by NEPA. As discussed in more detail in the August 15,

2025 order, SALECA expressly required the Forest Service to address certain topics in the

FEIS in addition to environmental consequences. 16 U.S.C. § 539p(c)(9)(C) (“The

environmental impact statement prepared under subparagraph (B) shall . . . assess the

effects of the mining and related activities on the Federal land conveyed to Resolution

Copper under this section on the cultural and archeological resources that may be located

on the Federal land; and . . . identify measures that may be taken, to the extent practicable,

to minimize potential adverse impacts on those resources, if any.”). The Ninth Circuit has

recognized that the FEIS required by SALECA is thus more expansive than an ordinary

FEIS: “Congress supplemented the ordinary NEPA requirements for such statements and

required that the EIS for the land transfer also ‘assess the effect of the mining’ on ‘cultural

and archeological resources’ in the area and ‘identify measures . . . to minimize potential

adverse impacts on those resources.’” Apache Stronghold, 101 F.4th at 1047 (emphasis

added). If SALECA requires the Forest Service to prepare a FEIS that covers additional

topics beyond the topics ordinarily addressed in a FEIS, it stands to reason that the usual

page limits applicable to FEISs may not be applicable here.4

Yet even assuming that the page limits specified in § 4336a(e) applied and that the

Forest Service violated those limits, the Court agrees with the Federal Defendants’

assertion that Plaintiffs likely cannot show “they were injured by receiving more

information than they were otherwise entitled to.” (Doc. 33 at 13.) “The APA directs us

to take due account of the rule of prejudicial error. . . . The harmless-error analysis asks

whether the [agency’s failure] materially impeded NEPA’s goals—that is, whether the

In a related vein, SALECA places a qualification on the Forest Service’s obligation

to “carry out the land exchange in accordance with [NEPA],” providing that this obligation

is “[e]xcept as otherwise provided in this section.” 16 U.S.C. § 539p(c)(9)(A).

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error caused the agency not to be fully aware of the environmental consequences of the

proposed action, thereby precluding informed decisionmaking and public participation, or

otherwise materially affected the substance of the agency’s decision.”

Growers Ass’n v. Vilsack, 816 F.3d 1095, 1104 (9th Cir. 2016).

Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 527 (9th Cir. 1994), as amended on

denial of reh’g (1994) (“In determining whether NEPA has been violated, we must look to

the ultimate harm NEPA seeks to prevent: the risk of damage to the environment that

results if the agency fails to properly and thoroughly evaluate the environmental impacts

of a proposed project.”).

Idaho Wool

See also Laguna

In Ground Zero Ctr. for Non-Violent Action v. United States Dep’t of Navy, 860

F.3d 1244 (9th Cir. 2017), the plaintiffs sought a preliminary injunction to stop the Navy

from building an “explosives handling wharf” for maintenance of submarines and nuclear

missiles. Id. at 1248-49. “[T]he Navy prepared and published an EIS,” which “[a]t several

points . . . referenced appendices.” Id. However, “[t]hree of these appendices were

redacted in their entirety in the publicly released version of the EIS.” Id. During litigation,

the appendices were later disclosed, but the initial “failure to disclose the . . . appendix

information violated NEPA,” which requires “disclosure to the fullest extent possible.” Id.

at 1252 (cleaned up). “Nevertheless,” the Ninth Circuit concluded that “the Navy’s failure

to disclose the portions of the appendices at issue was harmless error” because the plaintiffs

had “not specified any information in the now-revealed portions of [the appendices] that

would have made a difference in agency decisionmaking or public participation” or

otherwise “demonstrated that NEPA’s goals were materially impeded.” Id.at 1253.

Here, too, Plaintiffs have not demonstrated how the publishing of a shorter FEIS

would have made a difference in the agency decisionmaking or otherwise impede NEPA’s

goals. Plaintiffs argue that the overly-long FEIS caused harm by “giving [them] only 60

days to digest and challenge the content of a flood-the-zone EIS” and “effectively

stripp[ing] [them] of their right to receive ‘assurance that the agency has indeed considered

environmental concerns in its decisionmaking process.’” (Doc. 40 at 12-13.) To support

this argument, Plaintiffs cite Robertson v. Methow Valley Citizens Council, 490 U.S. 332

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(1989). The full quote from Robertson reads:

Publication of an EIS, both in draft and final form, also serves a larger

informational role. It gives the public the assurance that the agency has

indeed considered environmental concerns in its decisionmaking process

and, perhaps more significantly, provides a springboard for public comment.

Thus, in this case the final draft of the Early Winters Study reflects not only

the work of the Forest Service itself, but also the critical views of the

Washington State Department of Game, the Methow Valley Citizens

Council, and Friends of the Earth, as well as many others, to whom copies of

the draft Study were circulated.

Id. at 349 (cleaned up).

Although Robertson broadly supports the notion that NEPA’s purpose is to facilitate

“public participation,” it does not support Plaintiffs’ argument that NEPA is intended to

expedite and enable emergency litigation. Instead, Robertson suggests that the type of

“public participation” envisioned by NEPA is public access to information and “public

comment.” In this case, the Forest Service provided both.5

It is also important to take stock of other provisions of the BUILDER Act, passed

alongside the new page limits, when assessing how those page limits intersect with NEPA’s

broader goals and purposes. For example, the new § 4336a(g) provides that:

(1)

In general

Except as provided in paragraph (2), with respect to a proposed agency action, a

lead agency shall complete, as applicable—

the environmental impact statement not later than the date that is 2

years after the sooner of, as applicable—

(i)

(A)

the date on which such agency determines that section

Further, as Resolution Copper points out: “Plaintiffs’ assertion that the lengthy EIS

is too long for the public to tackle . . . ignores the 32 page executive summary that captures

the essence of the entire study.” (Doc. 38 at 19.) This argument also supports a finding of

harmless error. Despite the voluminous nature of the FEIS, Plaintiffs here (as well as the

plaintiffs in San Carlos and AMRC) were still able to seek relief and the Court was still

able to review their challenges within the 60-day statutory window. Plaintiffs’ contrary

argument places form over function and fails to explain how a 300-page EIS with 3,000

pages of appendices—as permitted by the statute—would be materially different from the

document provided here.

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4332(2)(C) of this title requires the issuance of an

environmental impact statement with respect to such action;

(ii)

the date on which such agency notifies the applicant that the

application to establish a right-of-way for such action is

complete; and

(iii)

the date on which such agency issues a notice of intent to

prepare the environmental impact statement for such action;

and

...

(2)

A lead agency that determines it is not able to meet the deadline described in

paragraph (1) may extend such deadline, in consultation with the applicant, to

establish a new deadline that provides only so much additional time as is necessary

to complete such environmental impact statement or environmental assessment.

Delay

42 U.S.C. § 4336a(g). This provision suggests the new page limits are part of a broader

effort to expedite the EIS process. Seven County Infrastructure Coalition, 145 S. Ct. at

1512 n.3 (“Under that BUILDER Act, an EIS shall not exceed 150 pages and must be

completed in 2 years or less. That Act strongly reinforces the basic principles that NEPA,

correctly interpreted, already embodied but that have been too often overlooked.”) (cleaned

up). The remedy that Plaintiffs seek here—vacating the FEIS so the Forest Service can

craft a new version of that document that is simply shorter in length—would not advance

that goal.

For these reasons, Plaintiffs are unlikely to succeed on their page-limit challenge.

Alternative Mining Methods

The other alleged NEPA violation raised by Plaintiffs is that the FEIS “neglected to

study, develop, and describe . . . the technically and economically feasible alternatives to

turning Oak Flat into a crater.” (Doc. 15-1 at 28, cleaned up.) More specifically, Plaintiffs

fault the Forest Service for uncritically accepting Resolution Copper’s proposed mining

method without considering and analyzing alternative mining methods that might be less

destructive. (Id. at 28-30.) Plaintiffs also contend the FEIS is internally inconsistent on

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why the Forest Service accepted this mining method, stating at times that the decision was

intended to boost Resolution Copper’s profits and productivity but stating at other times

that the agency “did not factor profitability into the analysis.” (Id.)

This challenge is unlikely to succeed on the merits. As an initial matter, the Federal

Defendants argue that because the Forest Service lacks authority to regulate the mining

operations that will occur on private land following the land exchange, the Forest Service

was not required to provide any analysis in the FEIS of the environmental consequences

of the mining methods that Resolution Copper may use as part of those operations or any

analysis of alternative mining methods. (Doc. 33 at 13.) Plaintiffs’ reply does not appear

to address or dispute this point. Seven County Infrastructure Coalition, 145 S. Ct. at 1516

(“[A]gencies are not required to analyze the effects of projects over which they do not

exercise regulatory authority.”). The Forest Service also emphasized this point in the

DROD. (AMRC, Doc. 94-2 at 16 [DROD page 5: “Mining operations within the area

conveyed by the Forest Service in the exchange are not subject to regulation by the Forest

Service . . . .].)

Moreover, even if the Forest Service’s evaluation of alternative mining methods

could somehow affect the Forest Service’s discretionary decisions as to other matters (such

as decisions regarding pipelines, permits, and the like), the Forest Service still has not made

any final decisions regarding those matters, which will eventually be set forth in the ROD.

As a result, any challenge along those lines would likely fail based on the absence of “final

agency action,” as explained in more detail in the August 15, 2025 order.

Finally, putting aside those obstacles, Plaintiffs’ substantive criticisms of the

portions of the FEIS discussing alternative mining methods6 are unlikely to succeed on the

merits. In the FEIS, the Forest Service explained that it had “received detailed comments

on our assessment of alternative mining techniques other than block caving; the most

commonly noted was cut-and-fill mining. . . . Ultimately, we confirmed our decision to

Although the Forest Service may not have been required, for the reasons stated

above, to assess the environmental consequences of alternative mining methods, it still

chose to do so.

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dismiss alternative mining techniques from detailed analysis. Almost all industry mining

guidance indicates alternative mining techniques are not appropriate for a deposit like the

Resolution Copper deposit, and the trade-offs are unreasonable. However, we added

further description here due to the interest in this topic.” (San Carlos, Doc. 105-9 at 95

[FEIS page 50.].) The Forest Service continued:

Based on review of industry guidance for selection of mining methods, block

caving is the standard mining method used in the industry for ore bodies with

the grade, size, depth, and geological characteristics of the Resolution

Copper deposit. The ore and host rock characteristics that are favorable to

other underground techniques differ from the Resolution Copper deposit.

While physically almost any technique could be undertaken, it is unlikely

that any of these other underground techniques would be chosen as a

reasonable technique for a similar deposit.

Aside from appropriateness when compared to industry standards, use of any

of these alternative underground mining techniques would result in higher

per-ton mining costs, and as a result the cutoff grade for the deposit would

need to be higher to be economically feasible. An increase in the cutoff grade

from 1 percent to 2 percent removes an estimated 80 percent of the tonnage

of the Resolution Copper deposit from consideration for development. The

tonnage is likely to be even lower at a 2 percent cutoff grade, as many of

these areas of high-grade ore are not contiguous or continuous. We found

that accepting this level of reduction to accommodate an alternative mining

technique is not economically feasible and would be unreasonable.

Based on public comments, the primary misunderstanding is that the decision

not to analyze alternative mining techniques is based on profit, and that we

are prioritizing profitability over environmental protection. This is not the

case. Analysis of profitability of the mine was not conducted, and does not

factor into the NEPA analysis or the determination of alternatives. Rather,

our decision is based on what is reasonable under regulations and policy. We

found that forgoing 80 percent of the ore deposit to accommodate an

alternative mining technique is an unreasonable outcome.

(Id. at 95-96 [FEIS pages 50-51].)

In Appendix F to the FEIS, the Forest Service provided further technical analysis of

these topics. (San Carlos, Doc. 107-3 at 224-27 [FEIS pages F-2 through F-5.].) That

analysis cross-referenced and discussed various studies, including the “Resolution Copper

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Project and Land Exchange Environmental Impact Statement Final Alternatives Evaluation

Report (SWCA Environmental Consultants 20l7a).” (Id. at 225 [FEIS page F-3].)

For these reasons, it is evident that the Forest Service took the sort of “hard look”

at alternative mining methods that, to the extent any such analysis was even required here,

would be sufficient under NEPA. Although Plaintiffs may disagree with the Forest

Service’s conclusions regarding the feasibility of those alternative mining methods,

“[b]lack-letter administrative law instructs that when an agency makes those kinds of . . .

predictive or scientific judgments, and decides what qualifies as . . . feasible or the like, a

reviewing court must be at its ‘most deferential.’” Seven County Infrastructure Coalition,

145 S. Ct. at 1512. Courts must also resist the urge to “fly-speck” the agency’s analysis

and “act[] as a type of omnipotent scientist.” Audubon Society of Portland v. Haaland, 240

F.4th 967, 984 (9th Cir. 2022). In a related vein, it fell within NEPA’s “broad zone of

reasonableness,” Seven County Infrastructure Coalition, 145 S. Ct. at 1513, for the Forest

Service to consider the cost and productivity of the alternative mining methods when

assessing their feasibility. Such consideration was particularly reasonable here because

Congress indicated in SALECA that it expected the land exchange to result in “the

extraction of minerals in commercial quantities by Resolution Copper.”

§ 539p(c)(9)(D)(ii). Plaintiffs may be correct that “Congress said nothing about how much

copper the project should provide” and did not “inten[d] to maximize Resolution’s bottom

line” (Doc. 40 at 13), but it was still reasonable for the Forest Service to consider, as part

of the feasibility analysis, the cost and productivity of alternative mining methods and how

those considerations would affect the mine’s output and productivity. Cf. Robertson, 490

U.S. at 350-51 (“If the adverse environmental effects of the proposed action are adequately

identified and evaluated, the agency is not constrained by NEPA from deciding that other

values outweigh the environmental costs. In this case, for example, it would not have

violated NEPA if the Forest Service, after complying with the Act’s procedural

prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy

Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent,

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50 percent, or even 100 percent of the mule deer herd.”).

Consultation Claim

Plaintiffs’ final argument is that the Forest Service violated its consultation duties

under § 106 of NHPA by failing to address certain mitigation measures proposed by ACHP,

including “the specific suggestion of incentivizing alternate mining techniques that would

prevent the crater from destroying the land at Oak Flat.” (Doc. 15-1 at 30-32.)

Plaintiffs are unlikely to succeed on this claim. As discussed in the August 15, 2025

order, the Forest Service consulted extensively with ACHP before ACHP terminated the

consultations in February 2021. The Secretary of Agriculture also provided a detailed

written response in April 2025 to the post-termination comments that ACHP transmitted

in March 2021.

Plaintiffs focus on ACHP’s second comment, which encouraged the Department of

Agriculture to “use further discussions with Indian tribes and other stakeholders to develop

and evaluate alternatives and further modifications to the undertaking that might avoid

adverse effects while also pursuing additional steps to modify or prevent the land transfer”

and then identified several areas of recommended emphasis, including “a reassessment of

alternative and more sustainable mining techniques in an effort to prevent subsidence at

Oak Flat.” (San Carlos, Doc. 109-5 at 8.) In the portion of the April 2025 letter responding

to ACHP’s second comment, the Secretary of Agriculture provided four lengthy, single-

spaced paragraphs. (San Carlos, Doc. 82-15 at 3-4.) The final paragraph reads: “It is also

important to recognize that SALECA limits the authority the USDA will have over most

elements of the proposed Resolution Copper Mine (RCM) because once the land is

exchanged, the project will be almost entirely on private land.” (Id. at 4.) Read in proper

context, this is a response to ACHP’s earlier comment about pursuing alternative mining

methods—as discussed in the preceding section of this order, the Forest Service lacks

authority to compel Resolution Copper to utilize a particular mining method once the land

exchange is completed.

As discussed in greater detail in the August 15, 2025 order, it follows that the Forest

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Service likely did all that is required under § 106: it “demonstrate[d]” via the April 2025

letter that “it ha[d] read and considered” ACHP’s comments and “gave the ACHP’s

conclusion genuine attention.” Concerned Citizens All., Inc. v. Slater, 176 F.3d 686, 696

(3d Cir. 1999).

II.

The Remaining Winter Factors

The remainder of the preliminary injunction analysis mirrors the analysis set forth

in Parts II, III, and IV of the August 15, 2025 order, which is incorporated by reference

here. More specifically, (1) the analysis need not go any further in light of Plaintiffs’ failure

to satisfy the first Winter factor; and (2) even if Plaintiffs had established serious questions

going to the merits, the Court would deny injunctive relief based on the remaining Winter

factors—although Plaintiffs will suffer irreparable harm in the absence of a preliminary

injunction, the public interest does not tip sharply in their favor (nor does the balance of

equities).

III.

Request For Injunction Pending Appeal

Plaintiffs’ alternative request for an injunction pending appeal (Doc. 43) is denied

for the same reasons as the requests for an injunction pending appeal in San Carlos and

AMRC (as discussed in Part V of the August 15, 2025 order). Although this is an important

case of an unusual magnitude, involves sympathetic Plaintiffs, and raises some compelling

equities, the Court does not construe Rule 62(d) as authorizing an injunction pending

appeal absent a stronger showing on the merits.

unpersuaded that it would be appropriate to “enter a limited, 14-day stay . . . to give the

Ninth Circuit an opportunity to address Plaintiffs’ request for an emergency injunction on

a less time-compressed time schedule.” (Doc. 43 at 2.) Granting that relief would

effectively be granting a TRO, and the standard for granting a TRO is simply not met here.

It is unfortunate that Plaintiffs will have very little time to seek emergency relief

from the Ninth Circuit before the land exchange is scheduled to occur on August 19, 2025

(and the judges of the Ninth Circuit will have even less time to consider that request), but

the Court has made extensive efforts to resolve the oversized preliminary injunction motion

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in this case (as well as the two oversized motions in San Carlos and AMRC) as

expeditiously as possible so there is at least some period of time for the Ninth Circuit to

consider these issues.

Accordingly,

IT IS ORDERED that:

Plaintiffs’ motion for preliminary injunction (Doc. 15) is denied.

Plaintiffs’ motion for an injunction pending appeal (Doc. 43) is denied.

Dated this 17th day of August, 2025.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

San Carlos Apache Tribe,

No. CV-21-00068-PHX-DWL

Plaintiff,

ORDER

United States Forest Service, et al.,

Defendants.

Arizona Mining Reform Coalition, et al.,

Plaintiffs,

ORDER

United States Forest Service, et al.,

No. CV-21-00122-PHX-DWL

Defendants.

INTRODUCTION

This order addresses the sometimes overlapping motions for preliminary injunction

filed in two cases: (1) San Carlos Apache Tribe v. United States Forest Service et al., No.

21-cv-68-PHX-DWL (hereinafter, “San Carlos”), and (2) Arizona Mining Reform

Coalition v. United States Forest Service et al., No. 21-cv-122-PHX-DWL (hereinafter,

“AMRC”). Each motion seeks an injunction to block a land exchange, now scheduled to

occur on August 19, 2025, that Congress authorized over a decade ago, as part of the

National Defense Authorization Act for Fiscal Year 2015 (“NDAA”).

More specifically, § 3003 of the NDAA, known as the Southeast Arizona Land

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Exchange and Conservation Act (“SALECA”), authorizes the exchange of 2,422 acres of

federal land in the Tonto National Forest for land held by a private company, Resolution

Copper (“Resolution Copper”). See also 16 U.S.C. § 539p(a) (“The purpose of this section

is to authorize, direct, facilitate, and expedite the exchange of land between Resolution

Copper and the United States.”). The federal land to be transferred to Resolution Copper

includes an Apache ceremonial ground called Chí’chil Biłdagoteel. That area, known in

English as Oak Flat, “is a site of great spiritual value to the Western Apache Indians, who

believe that it is indispensable to their religious worship,” but “also sits atop the world’s

third-largest deposit of copper ore.” Apache Stronghold v. United States, 101 F.4th 1036,

1044 (9th Cir. 2024) (en banc). Congress’s intent in authorizing the land exchange was

“[t]o take advantage of that deposit” by enabling Resolution Copper to “mine the ore.” Id.

Congress weighed considerable tradeoffs when deciding whether to approve the

land exchange. On the one hand, the contemplated mining activity is expected to produce

significant economic benefits in Arizona, as “the mine is projected to directly employ 1,434

workers . . . [and] increase the average annual economic value added in Arizona by about

$1.2 billion.” (San Carlos, Doc. 105-9 at 31-32.) Additionally, and perhaps more

important, the mine is also expected to promote America’s national security interests, by

ensuring domestic access to a mineral that is essential to energy distribution, generation,

and storage.

On the other hand, it is difficult to overstate just how profoundly the land exchange

will undermine the ability of members of the San Carlos Apache Tribe (“the Tribe”) to

practice their religion. Put simply, the mining techniques that will be used to extract the

copper will “turn Oak Flat into a massive hole in the ground. . . . It is undisputed that the

government’s plan will permanently destroy the Apaches’ historical place of worship,

preventing them from ever again engaging in religious exercise at Oak Flat.” Apache

Stronghold v. United States, 145 S. Ct. 1480, 1480 (2025) (Gorsuch, J., dissenting from the

denial of certiorari) (cleaned up). “[T]he government’s plan will effectively end Apache

religious existence as we know it. Even the government has acknowledged that the

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destruction of Oak Flat will inflict indescribable hardship on the Apaches.” Id. at 1488

(cleaned up).

The contemplated mining activity also has the potential to cause potentially

devastating environmental effects. For example, Resolution Copper’s mining activity will

generate massive quantities of toxic waste material, known as tailings, that will need to be

pumped through miles of pipelines before reaching a tailings storage facility. “There is

public apprehension over the creation, and type, of a tailings embankment for the tailings

storage facility. The catastrophic collapse of [a] tailings dam in Brazil in January 2019,

resulting in 259 confirmed fatalities with 11 people still missing, has heightened concerns.”

(San Carlos, Doc. 105-9 at 7.) “The consequences of a catastrophic failure and the

downstream flow of tailings would include possible loss of life and limb, destruction of

property, displacement of large downstream populations, disruption of the Arizona

economy, contamination of soils and water, and risk to water supplies and key water

infrastructure like the CAP [Central Arizona Project] canal.” (Id. at 30.)

Additionally, the contemplated mining activity will require tremendous quantities

of water, which is of particular concern in drought-stricken Arizona. (Id. at 7 [“Water use

is a major concern among the public, other government agencies, and interested parties.”].)

“Over the mine life, 87,000 acre-feet of water would be pumped from the mine, and

between 180,000 and 590,000 acre-feet of makeup water would be pumped from the Desert

Wellfield in the East Salt River valley. . . . The wellfield pumping would incrementally

contribute to the lowering of groundwater levels and cumulatively reduce overall

groundwater availability in the area.” (Id. at 28.) This water use may result in alarming

long-term consequences. (AMRC, Doc. 93-1 at 169 [“[U]ltimately, long-term use of

groundwater may become unsustainable . . . .”].)

Given these stark tradeoffs, it should come as no surprise that the land exchange has

been the subject of intense opposition and an array of legal challenges. In 2019, several

members of Congress attempted, unsuccessfully, to introduce legislation to overturn

SALECA. (San Carlos, Doc. 105-9 at 7.) In 2021, when the land exchange appeared to

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be imminent, three lawsuits (including these two lawsuits) were filed in the District of

Arizona seeking to enjoin it. In the other lawsuit, a nonprofit organization alleged that the

land exchange would violate tribal members’ rights under the First Amendment’s Free

Exercise Clause, the Religious Freedom Restoration Act (“RFRA”), and an 1852 treaty

between the United States and the Tribe. Apache Stronghold v. United States et al., No.

21-cv-50-PHX-SPL (hereinafter, “Apache Stronghold”).

surrounding Apache Stronghold is summarized in more detail in a previous order in this

case. (San Carlos, Doc. 99 at 3-6.) In a nutshell, the Ninth Circuit narrowly rejected the

plaintiff’s claims in a 6-5 en banc decision issued in March 2024 and the Supreme Court

denied certiorari in May 2025, albeit only after relisting the matter for consideration more

than a dozen times and over the dissent of Justices Gorsuch and Thomas.

The procedural history

In light of those developments, the plaintiffs in these two actions have not advanced

any religion-based claims in their pending motions. Instead, the claims underlying those

motions broadly fall into the following four categories:

Appraisal Claims:

Under SALECA, the United States Forest Service

(“Forest Service”) must perform an appraisal to calculate the value of the federal and non-

federal land to be exchanged.

“equalization process” providing that if the federal land is more valuable than the non-

federal land, Resolution Copper must make up the difference by conveying additional land

and/or “mak[ing] a cash payment.” Id. § 539p(c)(5)(B)(i). According to AMRC, the Forest

Service violated its appraisal-related duties under SALECA by failing to account for the

value of the copper deposits underlying one of the federal parcels to be exchanged, known

as the Mining Claim Zone (“MCZ”) parcel—an omission that resulted in the Forest Service

“low-ball[ing] the appraised value” of that parcel by potentially billions of dollars. (AMRC,

Doc. 97 at 10.)

16 U.S.C. § 539p(c)(4).

SALECA also creates an

NEPA Claims: SALECA provides that “[p]rior to conveying Federal land

under this section, the Secretary [of Agriculture] shall prepare a single environmental

impact statement under the National Environmental Policy Act of 1969 [‘NEPA’], which

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shall be used as the basis for all decisions under Federal law related to the proposed mine

and the Resolution mine plan of operations and any related major Federal actions

significantly affecting the quality of the human environment, including the granting of any

permits, rights-of-way, or approvals for the construction of associated power, water,

transportation, processing, tailings, waste disposal, or other ancillary facilities.” 16 U.S.C.

§ 539p(c)(9)(B). On June 20, 2025, the Forest Service published its voluminous final

environmental impact statement (“FEIS”) related to the land exchange,1 as well as its draft

record of decision (“DROD”). In their motions, AMRC and the Tribe identify an array of

perceived shortcomings and omissions in the FEIS, which they contend violate NEPA.

Consultation Claims: SALECA provides that “[t]he Secretary shall engage

in government-to-government consultation with affected Indian tribes concerning issues of

concern to the affected Indian tribes related to the land exchange.”

§ 539p(c)(3)(A). Additionally, under section 106 of the National Historic Preservation Act

(“NHPA”), agencies “shall take into account the effect of an undertaking on any historic

property” and afford the Advisory Council on Historic Preservation (“ACHP”) “a

reasonable opportunity to comment with regard to the undertaking.” Tohono O’odham

Nation v. U.S. Dept. of the Interior, 138 F.4th 1189, 1193 (9th Cir. 2025) (cleaned up).

According to the Tribe, the Forest Service did not fulfill these consultation duties before

publishing the FEIS.

16 U.S.C.

NFMA Claims: The National Forest Management Act (“NFMA”) includes

a provision that requires the Forest Service to prepare a land and resource management

plan for each national forest. 16 U.S.C. § 1604(a). Such a plan exists for the Tonto

National Forest (the “Forest Plan”) and was last amended in 2023. In the FEIS, the Forest

Service acknowledges that some of the contemplated mining-related activities will occur

within the Tonto National Forest and thus require an amendment of the Forest Plan (San

“The FEIS consists of six volumes. It includes a nine-chapter, 1,000-page body and

twenty-one appendices, which together span more than 2,500 pages. Over the course of

nearly 400 pages in Appendix R, the FEIS responds to the more than 29,000 comments the

agency received on the Draft EIS.” (San Carlos, Doc. 114 at 4.)

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Carlos, Doc. 105-9 at 11, 54), and the DROD proposes 16 amendments to the Forest Plan

that would be required for approving Skunk Camp as the preferred tailings storage facility

alternative (AMRC, Doc. 87-3 at 19-25). According to AMRC, this approach violates

NFMA’s forest planning regulations, which appear at 36 C.F.R. Part 219, because those

regulations require a public notice-and-comment process “which did not occur here” before

any forest plan may be amended. (AMRC, Doc. 87 at 28.)

On August 6, 2025, the Court held a lengthy hearing to hear oral argument from the

parties. Having given careful consideration to the parties’ arguments, the Court now

concludes that Plaintiffs have not established a likelihood of success on any of their claims.

In all cases, this determination is based on an evaluation of the merits. Additionally, in

some cases, this determination is also based on various jurisdictional and other threshold

issues identified by the Federal Defendants and Resolution Copper.

Moreover, even if the merits of some of Plaintiffs’ claims could be said to satisfy

the lesser “serious questions” standard, the Court would still decline to issue injunctive

relief. Although Plaintiffs have sufficiently established the second preliminary-injunction

factor (a likelihood of irreparable injury in the absence of injunctive relief), the remaining

factors (balance of hardships and public interest) present a mixed picture and thus do not

tip sharply in Plaintiffs’ favor. It is evident that Plaintiffs and their supporters profoundly

disagree with Congress’s decision to authorize the land exchange, which may generate

significant economic and national security benefits but will also “effectively end Apache

religious existence as we know it” and pose significant environmental threats.

Nevertheless, in our system of government, the political branches are responsible for

weighing these sorts of competing objectives and determining how to balance them. Here,

Congress chose to pursue the land exchange despite the existence of many significant

tradeoffs and the President chose to ratify Congress’s choice by signing the law into effect.

As a result, the Court must accept that this choice advances the public interest and operate

from that premise. United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 497

(2001) (“[A] court sitting in equity cannot ignore the judgment of Congress, deliberately

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expressed in legislation. . . . Courts of equity cannot, in their discretion, reject the balance

that Congress has struck in a statute.”) (cleaned up). A NEPA lawsuit is not the proper

forum for second-guessing the wisdom of Congress’s decision to pursue the land exchange.

Seven County Infrastructure Coalition v. Eagle County, Colo., 145 S. Ct. 1497, 1511

(2025) (“Plaintiffs’ policy objections to this 88-mile Utah railroad may or may not be

persuasive. But . . . [t]he political process, and not NEPA, provides the appropriate forum

in which to air policy disagreements.”) (cleaned up).

LEGAL STANDARD

“A preliminary injunction is an extraordinary and drastic remedy, one that should

not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (cleaned up). See also Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an

extraordinary remedy never awarded as of right.”) (citation omitted); Dymo Industries, Inc.

v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a preliminary

injunction is the exercise of a very far reaching power never to be indulged in except in a

case clearly warranting it.”).

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to

succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction

is in the public interest.” Winter, 555 U.S. at 20. However, “if a plaintiff can only show

that there are serious questions going to the merits—a lesser showing than likelihood of

success on the merits—then a preliminary injunction may still issue if the balance of

hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are

satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)

(cleaned up).2 Additionally, when, as here, “a government agency is a party,” “the final

The existence of serious questions often turns on the presence of disputed factual

issues. Assurance Wireless USA, L.P. v. Reynolds, 100 F.4th 1024, 1031 (9th Cir. 2024)

(“[P]arties do not show serious questions when they raise a merely plausible claim, nor can

a district court forgo legal analysis just because it has not identified precedent that places

the question beyond debate. This less demanding merits standard requires serious factual

questions that need to be resolved in the case.”) (cleaned up); Alliance for the Wild Rockies

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two injunction factors—the balance of equities and the public interest—merge.”

Assurance Wireless USA, L.P. v. Reynolds, 100 F.4th 1024, 1031 (9th Cir. 2024).

Regardless of which standard applies, the movant “carries the burden of proof on

each element of either test.” Env’t. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

1027 (E.D. Cal. 2000).

ANALYSIS

First Winter Factor

The analysis begins with the first Winter factor—whether Plaintiffs have shown a

likelihood of success on the merits. Roe v. Critchfield, 137 F.4th 912, 922 (9th Cir. 2025)

(“Likelihood of success on the merits is the most important Winter factor and is a threshold

inquiry.”) (cleaned up).

As noted, the Federal Defendants and Resolution Copper have, in addition to

addressing Plaintiffs’ arguments on the merits, identified various jurisdictional and other

threshold reasons why, in their view, Plaintiffs will not be able to succeed on their claims.

Those arguments also go to whether Plaintiffs have satisfied the first Winter factor. See,

e.g., LA Alliance for Human Rights v. Cnty. of Los Angeles, 14 F.4th 947, 958 (9th Cir.

2021) (reversing preliminary injunction in part because “Plaintiffs have not made the

required ‘clear showing’ that any individual Plaintiff has standing to bring the . . . claim”);

Yazzie v. Hobbs, 977 F.3d 964, 966 (9th Cir. 2020) (“At this preliminary injunction stage,

v. Petrick, 68 F.4th 475, 497 (9th Cir. 2023) (“[L]ike many legal questions, the meaning of

HFRA’s unambiguous provisions would not become clearer with at least some discovery

or a further hearing on the merits. There is no need for more deliberative investigation or

development of the record to resolve the plain meaning of HFRA.”) (cleaned up).

However, the Ninth Circuit has indicated that unsettled and debatable legal issues may also

qualify as serious questions. See, e.g., hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180,

1184, 1195 (9th Cir. 2022) (identifying unresolved issue of statutory interpretation over

the meaning of the term “without authorization” before concluding that “[a]t the very least,

. . . hiQ has raised a serious question as to this issue” and also noting that, during an earlier

stage in the case, “we focused on whether hiQ had raised serious questions on the merits

of the factual and legal issues presented to us”) (emphasis added); City of Tenakee Springs

v. Clough, 915 F.2d 1308, 1311 (9th Cir. 1990) (reversing denial of preliminary injunction

in part because the movants’ “interpretation of the language of the contract [was] not

reasonable” and raised “at least a serious question as to its proper interpretation”);

Adultworld Bookstore v. City of Fresno, 758 F.2d 1348, 1351-52 (9th Cir. 1985) (reversing

denial of preliminary injunction because “the question of the constitutionality of the Fresno

ordinance presents a fair ground for litigation” and “at least a serious litigation question”).

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Yazzie must make a clear showing of each element of standing . . . .”) (cleaned up);

Mitchell v. City of Cincinnati, 2022 WL 4546852, *4 (6th Cir. 2022) (“[W]hether plaintiffs

had standing . . . is a component of the likelihood of success on the merits.”).

Appraisal Claims

Threshold Issues

Standing/Redressability

“[S]tanding is an essential and unchanging part of the case-or-controversy

requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

“[T]he irreducible constitutional minimum of standing contains three elements. First, the

plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical. Second, there must be a causal connection between the injury and the

conduct complained of—the injury has to be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some third party not before the

court. Third, it must be likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Id. at 560-61 (cleaned up).

Focusing on the redressability element, Resolution Copper argues that Plaintiffs

lack Article III standing to pursue all of their claims because any asserted “injuries flowing

from conveyance of title . . . are not redressable through their claims here. . . . Nothing in

[SALECA] grants the Forest Service the power to refuse to make the exchange based on

court challenges to the FEIS, the appraisals, or the consultations. Even if Plaintiffs could

convince this Court that flaws in the FEIS, appraisals, or the consultations require

additional study or correction, Plaintiffs cannot show that the Forest Service ‘could be

influenced’ ultimately to do anything other than comply with its duty under the Act to

proceed with the land exchange.” (AMRC, Doc. 94 at 14.) Meanwhile, although it is not

clear whether the Federal Defendants also challenge AMRC’s Article III standing with

respect to the appraisal claims,3 the Federal Defendants argue that, at a minimum, “AMRC

Although the Federal Defendants raise redressability arguments that are similar to

the redressability arguments raised by Resolution Copper, their brief suggests they only

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lacks prudential standing to challenge the appraisal at all, because its alleged injuries

caused by the privatization of and eventual impacts to the federal lands fall outside the zone

of interests protected by [SALECA’s] appraisal provisions.” (AMRC, Doc. 93 at 34.)

Even though, as explained in later portions of this order, Defendants’ redressability

arguments present a closer call when applied to some of Plaintiffs’ other claims, they are

unpersuasive in relation to AMRC’s appraisal-related claims. Davis v. Fed. Election

Comm’n, 554 U.S. 724, 734 (2008) (“Standing is not dispensed in gross. Rather, a plaintiff

must demonstrate standing for each claim he seeks to press and for each form of relief that

is sought.”) (cleaned up). The starting point for the analysis is the Ninth Circuit’s decision

in Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir. 2000). There, “three

environmental organizations” sought to challenge a decision by the Bureau of Land

Management (“BLM”) to enter into a land exchange, arguing that BLM relied “on an

outdated appraisal that undervalued the federal lands.” Id. at 1174. The district court

denied the plaintiffs’ request for a preliminary injunction on the ground that they lacked

standing but the Ninth Circuit “reversed . . . [and] remanded for entry of a preliminary

injunction setting aside this land exchange pending further proceedings in accordance with

this opinion.” Id. at 1188.

As an initial matter, the Ninth Circuit rejected the district court’s determination that

the plaintiffs’ appraisal-related arguments “only constituted an attack on the way federal

money is spent, making [their] injury indistinguishable from that of other taxpayers and

therefore insufficiently particularized to confer standing,” concluding that “the present

challenge . . . is not merely a generalized allegation of federal revenue loss at taxpayers’

expense. Rather, it is an effort by land users to ensure appropriate federal guardianship of

the public lands which they frequent. If, by exchange, public lands are lost to those who

use and enjoy the land, they are certainly entitled under the APA to file suit to assure that

view those redressability arguments as applying to Plaintiffs’ NEPA and NHPA claims.

(AMRC, Doc. 93 at 13 [“Plaintiffs’ NEPA and NHPA claims also fail for want of standing

because the injury that Plaintiffs trace to the land exchange is not redressable; the Forest

Service has a non-discretionary obligation to transfer title.”].)

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no exchange takes place unless the governing federal statutes and regulations are followed,

including the requirement that the land exchanged is properly valued by the agency.” Id.

at 1176-77. Turning to the issue of redressability, the defendants argued—similar to

Defendants here—that a ruling in the plaintiffs’ favor would not redress their injuries

because “even if [plaintiffs] succeeded on the merits and BLM relied on a new appraisal,”

the land exchange would still eventually go forward and “the public lands would

nevertheless be traded away.” Id. at 1178. The Ninth Circuit disagreed, holding that it

would “place[] an unreasonable burden” on the plaintiffs to be required to conclusively

establish “that no subsequent exchange would take place” following a reappraisal. Id.

Instead, the court held, it was enough for redressability purposes that “the transfer based

on the current appraisal would not have taken place and [plaintiffs] members could have

continued to use and enjoy the selected federal lands.” Id. Finally, the Ninth Circuit also

held that the plaintiffs fell within the zone of interests protected by the statute giving rise

to their appraisal-related claims—there, the Federal Land Policy and Management Act

(“FLPMA”)—and thus had prudential standing. Id. at 1179-80. Among other things, the

court emphasized that FLPMA is intended to protect various environmental values, which

“policy encompasses [plaintiffs’] interest in seeking to invalidate an allegedly unlawful

transfer of federal land that will deprive its members of their aesthetic and recreational

interest in the land,” and that FLPMA contains provisions that encourage judicial review

of public land adjudication decisions. Id.

For the same reasons that the environmental organizations in Desert Citizens had

Article III standing to challenge the appraisal underlying the land exchange they sought to

enjoin, AMRC likely has Article III standing to challenge the Forest Service’s appraisal of

the MCZ parcel. Defendants’ primary basis for seeking to distinguish Desert Citizens is

that the land exchange in that case “was a discretionary administrative land exchange—not

one ordered by Congress” and thus “it was possible that, if the plaintiff prevailed, the

agency might change its mind and the federal land might not ‘be traded away,’” which is

“not possible here” because “[e]ven if the . . . appraisals were found to need revision . . .

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there is no possibility that the Forest Service may ‘decide’ not to make the land exchange.”

(AMRC, Doc. 94 at 15, emphases omitted.) But this is a distinction without a difference.

If, hypothetically, the Court were to agree with the merits of AMRC’s appraisal-related

arguments and enjoin the land exchange pending a reappraisal, and if the Forest Service

were to conclude following the reappraisal that the MCZ parcel is actually worth billions

of dollars (as AMRC contends it should be valued), these developments might very well

derail the land exchange. True, the Forest Service would still be required to attempt to

convey title to Resolution Copper at the conclusion of the reappraisal process, but

Resolution Copper might then decline to accept title because doing so would require it,

pursuant to the equalization process set forth in § 539p(c)(5), to write a multi-billion dollar

check to the federal government to make up the difference in value between the federal and

non-federal parcels.4 The bottom line is that correcting the alleged statutory violation (i.e.,

the flawed appraisal) will create some possibility that the alleged injury-causing event (i.e.,

the land exchange) will not occur. Save Bull Trout v. Williams, 51 F.4th 1101, 1106-07

(9th Cir. 2022) (explaining that the “relaxed” requirement of redressability in a case

involving an alleged procedural injury requires there to be “‘some possibility’ that the

requested relief . . . will redress their alleged harms”).

Turning to prudential standing, SALECA itself, which provides the basis for

AMRC’s appraisal-related claims, does not create a private right of action. Concerned

Citizens & Retired Miners Coalition v. U.S. Forest Serv., 279 F. Supp. 3d 898, 942-43 (D.

Ariz. 2017) (rejecting tribal plaintiff’s claim “that the Forest Service violated § 3003 of the

NDAA” in part because “the Tribe has not shown that this statute provides a cause of action

for it”). Thus, AMRC must assert those claims via the Administrative Procedure Act

(“APA”). “[A] person suing under the APA must satisfy not only Article III’s standing

requirements, but an additional test: The interest he asserts must be arguably within the

The FEIS acknowledges this point. (San Carlos, Doc. 105-9 at 137 [FEIS page 92:

“[E]ven though directed by Congress, the land exchange remains a discretionary decision

on the part of Resolution Copper, which may or may not choose to undertake the exchange

after receipt of the appraised value.”].)

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zone of interests to be protected or regulated by the statute that he says was violated.”

Havasupai Tribe v. Provencio, 906 F.3d 1155, 1166 (9th Cir. 2018) (citation omitted).

“The purpose of this prudential standing requirement is to exclude those plaintiffs whose

suits are more likely to frustrate rather than to further statutory objectives. The test is not

meant to be especially demanding. The benefit of any doubt goes to the plaintiff. Still, the

‘zone of interests’ standard forecloses suit when a plaintiff’s interests are so marginally

related to or inconsistent with the purposes implicit in the statute that it cannot reasonably

be assumed that Congress intended to permit the suit.” Wild Fish Conservancy v. Jewell,

730 F.3d 791, 797 (9th Cir. 2013) (cleaned up). See also Bennett v. Spear, 520 U.S. 154,

163 (1997) (characterizing the zone of interests in APA cases as “generous”).

On the one hand, although AMRC unsurprisingly views Desert Citizens as

establishing the existence of prudential standing here, there are differences between the

underlying statutes in that case and in this one. There, the plaintiffs relied on FLPMA,

which includes provisions that expressly call for the protection of scenic and environmental

interests and expressly encourage judicial review. Desert Citizens, 231 F.3d at 1179. The

Ninth Circuit concluded those provisions created a zone of interests that was capacious

enough to encompass the environmental organizations’ “interest in seeking to invalidate

an allegedly unlawful transfer of federal land that will deprive its members of their aesthetic

and recreational interest in the land.” Id. SALECA, in contrast, has one and only one

stated purpose, which is to facilitate the land exchange.5 Additionally, although the Court

disagrees with Defendants’ contention (addressed in more detail in later portions of this

order) that SALECA should be construed as evincing an intent to implicitly preclude any

form of judicial review related to the land exchange, it does not explicitly encourage

judicial review in the same manner as FLPMA.

On the other hand, one of the plaintiffs in AMRC is the Inter Tribal Association of

Arizona, Inc. and SALECA has provisions that evince an intent to protect the interests of

16 U.S.C. § 539p(a) (“The purpose of this section is to authorize, direct, facilitate,

and expedite the exchange of land between Resolution Copper and the United States.”).

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affected Indian tribes.6 Although those provisions do not specifically state that affected

Indian tribes have a protected interest in the appraisal and equalization portions of the

statute, that was also the situation in Desert Citizens—the Ninth Circuit concluded the

environmental organizations fell within the zone of interests created by FLPMA’s

equalization provisions by looking to other portions of the statute that were not expressly

related to the equalization process. Nor is Desert Citizens the only Ninth Circuit decision

to conclude that environmental groups had prudential standing to challenge agency

financial determinations. Nat’l Wildlife Fed. v. Burford, 871 F.2d 849, 852-55 (9th Cir.

1989) (plaintiffs fell within the zone of interests of the Coal Leasing Act, and thus could

challenge whether agency leases were made at fair market value, even though the

challenged determination was purely economic). More broadly, the zone-of-interests test

is “generous,” Bennett, 520 U.S. at 163, and “not . . . especially demanding.” Wild Fish

Conservancy, 730 F.3d at 797. See also Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 130 (2014) (“[W]e have often conspicuously included the word

‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff . . . .”)

(cleaned up). Given those principles, AMRC likely possesses prudential standing to pursue

its appraisal-related claims, even if the case for prudential standing is not a slam dunk.

Implicit Preclusion Of Judicial Review

Defendants contend that SALECA should be construed as barring judicial review

of the type of challenges Plaintiffs seek to advance here. Resolution Copper emphasizes

that (1) the text of SALECA only identifies four enumerated conditions to the land

exchange and “the issues that Plaintiffs seek to litigate here are not among them”; (2) “the

unambiguous statutory obligation to transfer title within 60 days of FEIS publication is

irreconcilable with Plaintiffs’ contention that conveyance of title must wait for judicial

review of [their] various claims”; and (3) the only purpose of the FEIS, as explained in

See, e.g., 16 U.S.C. § 539p(c)(3)(A)-(B) (requiring “government-to-government

consultation with affected Indian tribes concerning issues of concern to the affected Indian

tribes related to the land exchange” and corresponding efforts to “address the concerns of

the affected Indian tribes”).

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§ 539(c)(9), is to guide future agency discretionary decisions related to the contemplated

mining activity after the land exchange. (AMRC, Doc. 94 at 9-14.) Similarly, the Federal

Defendants argue: “The practical effect of [the 60 day] statutory deadline is that title will

necessarily be transferred before any judicial challenge to the FEIS could be resolved, or

for that matter, before any Final ROD could issue. Congress would have understood this

when it enacted the Land Exchange Act. . . . Aware that NEPA challenges are not resolved

in a mere sixty days, Congress sought to ensure that the land exchange proceeded

expeditiously. Read together, subsections (c)(9) and (c)(10) evince Congress’ intent to

expedite the land exchange and to prevent an endless series of environmental reviews—

and attendant judicial reviews—from frustrating that intent.” (AMRC, Doc. 93 at 19-20.)

These arguments lack merit. Congress could have expressly precluded judicial

review of claims related to the land exchange but declined to do so. Defendants are thus

left to argue that such intent should be inferred from various features of SALECA’s text.

But such intent is not to be inferred lightly: “A strong presumption exists that the actions

of federal agencies are reviewable in federal court.” KOLA, Inc. v. United States, 882 F.2d

361, 363 (9th Cir. 1989). As the Supreme Court has explained:

We begin with the strong presumption that Congress intends judicial review

of administrative action. From the beginning our cases have established that

judicial review of a final agency action by an aggrieved person will not be

cut off unless there is persuasive reason to believe that such was the purpose

of Congress. . . . Congress ordinarily intends that there be judicial review,

and . . . only upon a showing of clear and convincing evidence of a contrary

legislative intent should the courts restrict access to judicial review. This

standard has been invoked time and again when considering whether the

Secretary has discharged the heavy burden of overcoming the strong

presumption that Congress did not mean to prohibit all judicial review of his

decision.

Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670-72 (1986) (cleaned up).

The features of SALECA emphasized by Defendants are too ambiguous to

overcome this strong presumption. Although the compressed 60-day transfer deadline has

certainly complicated the task of providing judicial review of Plaintiffs’ challenges, it has

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not rendered judicial review impossible. As the Tribe persuasively argues in its reply:

“Congress certainly knew that NEPA and APA challenges are common and often lengthy.

If it wanted to eliminate any such challenges, Congress could have excluded the Project

from NEPA entirely. Congress did the opposite by requiring an EIS consistent with NEPA

but subject to additional requirements. In this context, a preferable interpretation of the

sixty-day timeframe is that it permits sufficient time for aggrieved parties to seek

preliminary relief . . . .” (San Carlos, Doc. 119 at 10.)

Final Agency Action

The Federal Defendants contend that “[t]he Court lacks jurisdiction over Plaintiffs’

claims because neither the FEIS nor the Draft ROD is a final agency action.” (AMRC, Doc.

93 at 7, capitalization omitted.) Likewise, Resolution Copper argues that “[o]nly agency

actions that are both discretionary and final are subject to APA review” and that “final

agency action . . . is absent here.” (AMRC, Doc. 94 at 6, 48, emphasis omitted.)

Although Defendants’ “final agency action” arguments have more force when

applied to some of Plaintiffs’ other claims, they are unpersuasive in relation to AMRC’s

appraisal-related claims. As background, under the APA, “the person claiming a right to

sue must identify some ‘agency action’ that affects him in the specified fashion” and “the

‘agency action’ in question must be ‘final agency action.’” Lujan v. National Wildlife

Federation, 497 U.S. 871, 882 (1990). “The APA defines ‘agency action’ broadly to

include the whole or a part of an agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act.

comprehensively every manner in which an agency may exercise its power.” Francisco

Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 575-76 (9th Cir. 2019) (cleaned up).

For purposes of AMRC’s appraisal-related claims, the challenged conduct is the Forest

Service’s appraisal of the MCZ parcel. The Court has little trouble concluding that this

appraisal qualifies as “agency action.”

This definition is meant to cover

To determine whether agency action is “final,” courts in the Ninth Circuit apply the

two-part test from Bennett v. Spear, 520 U.S. 154 (1997): first, the action must “mark the

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consummation of the agency’s decision-making process”; and second, the action must

“determine rights or obligations or be one from which legal consequences will flow.”

Envt’l Defense Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 867-68 (9th Cir. 2022)

(cleaned up). “The law surrounding the APA’s finality requirement is hardly crisp and our

precedent lacks many self-implementing, bright-line rules, given the pragmatic and flexible

nature of the inquiry as a whole.” MediNatura, Inc. v. Food & Drug Administration, 998

F.3d 931, 938 (D.C. Cir. 2021) (cleaned up). “The core question is whether the agency has

completed its decisionmaking process, and whether the result of that process is one that

will directly affect the parties. The court focuses on the practical and legal effects of the

agency action: the finality element must be interpreted in a pragmatic and flexible manner.”

Tohono O’odham Nation, 138 F.4th at 1200 (cleaned up).

The finality analysis is straightforward as applied to AMRC’s appraisal-related

claims. As for the first finality element, the appraisal process has now been completed—

and, thus, there has been a “consummation of the agency’s decision-making process” with

regard to the challenged appraisal decision. In this way, that decision differs from the

discretionary permitting and land-use determinations discussed in the FEIS and DROD,

which remain subject to change pending public comment and objection. As for the second

finality element, the appraisal decision will certainly “determine rights or obligations,” as

it will provide part of the basis under the equalization process set forth in § 539p(c)(5) for

determining whether Resolution Copper has to write a check to the federal government—

a check that, at least theoretically, could be for billions of dollars—to complete the land

exchange.

Defendants’ arguments to the contrary are unavailing. Although Resolution Copper

contends that SALECA “establishes its own remedy for any purported defect in the

appraisal: a make-whole payment, not an injunction against conveyance” (AMRC, Doc. 94

at 35-36), this ignores that the make-whole process only addresses what happens if the

appraised value of the federal land exceeds the appraised value of the non-federal land. It

doesn’t create a process for questioning the accuracy of the appraisal itself. Again, as to

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that issue, final agency action has already occurred.

No Agency Discretion

Defendants also raise an array of arguments that hinge, in one way or another, on

the concept of agency discretion. For example, the Federal Defendants argue that because

“Congress required the Forest Service to carry out the land exchange,” it follows that “the

Forest Service lacks discretion with respect to that statutory mandate” and thus “Plaintiffs

cannot state a cognizable APA challenge to the land exchange.” (AMRC, Doc. 93 at 17.)

The Federal Defendants also contend that because “NEPA does not apply in the absence

of agency discretion” and non-discretionary actions are exempted “from NEPA’s definition

of a ‘major federal action,’” “[t]he mandatory transfer of title is not a major federal action

subject to NEPA.” (Id. at 22-23.) Likewise, Resolution Copper argues that “the [APA] is

no help to Plaintiffs here, because what they seek to enjoin—conveyance of the federal

land—is not an agency decision subject to any discretion.” (AMRC, Doc. 94 at 2.)

These “no agency discretion” arguments lack merit in relation to AMRC’s

appraisal-related claims. Again, the challenged conduct here is the appraisal of the MCZ

parcel, and SALECA expressly vests the Secretary of the Forest Service with discretion

regarding that appraisal. See 16 U.S.C. § 539p(c)(4)(B)(ii) (“After the final appraised

values of the Federal land and non-Federal land are determined and approved by the

Secretary . . . .”). See also Ctr. for Biological Diversity v. U.S. Forest Serv., 2025 WL

947472, *2 (D.D.C. 2025) (“To comply with [SALECA’s] equalization requirement,

Congress mandated that the land parcels be independently appraised. The Forest Service

contracted with Barry Weissborn to serve as lead appraiser. Within the Forest Service,

Gerald Sanchez was designated to assess the appraiser’s work. . . . On January 20, 2023,

the appraisal was completed, and on January 22, 2023, the appraisal was ‘provided’ to the

Forest Service, meaning that Sanchez was granted authorization to view it. . . . On January

25, 2023, Sanchez completed the technical review of the results of the appraisal and issued

a report. Sanchez’s technical report assessed the completeness and accuracy of the

appraisal to ensure that it used appropriate methods and techniques, and that its

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conclusions, analyses, and opinions were reasonably supported with market data. Sanchez

also prepared an appraisal summary. Both documents were prepared to assist the Secretary

when deciding whether to accept the appraisal . . . .”) (citations omitted) (emphasis added).

Vacatur As A Remedy

Defendants’ final threshold argument turns on the issue of the appropriate remedy

in a NEPA action.

environmental impact statement is not to order vacatur of the statement but simply to

remand to the agency for additional analysis or consultation. (AMRC, Doc. 93 at 50

[“Vacatur is generally not appropriate in NEPA cases . . . .”]; AMRC, Doc. 94 at 19

[“Plaintiffs’ motions also rest on a mistaken premise about the appropriate remedy for a

NEPA violation—even assuming they could establish one.

analysis that this Court should vacate the FEIS and enjoin conveyance if it finds the FEIS

somehow flawed. But . . . even if Plaintiffs were right that the FEIS is flawed, this Court

at most might remand the FEIS without vacatur for further analysis or consultation.”].)

According to Defendants, this principle is significant here because, absent vacatur, the land

exchange must go forward on August 19, 2025 pursuant to SALECA’s statutory directive

that the land exchange occur within 60 days of publication of the FEIS. (Id.)

According to Defendants, the usual remedy for a flaw in an

Plaintiffs assert without

This argument does not undermine AMRC’s likelihood of success in relation to the

appraisal claims. As discussed, Desert Citizens holds that a district court may enjoin a land

exchange based on appraisal-related errors. Indeed, in Desert Citizens, the Ninth Circuit

remanded to the district court with directions to issue a preliminary injunction that would

retroactively unwind a land exchange that had already occurred. Desert Citizens, 231 F.3d

at 1188 (“The district court’s dismissal and its denial of a preliminary injunction are

reversed, and the case is remanded for entry of a preliminary injunction setting aside this

land exchange pending further proceedings in accordance with this opinion.”). Even

though, as Defendants emphasize, the land exchange in Desert Citizens was not

congressionally mandated, the Court still construes Desert Citizens (rather than the NEPA

decisions cited by Defendants) as supplying the relevant authority in evaluating whether

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an available remedy exists in the appraisal context that would redress AMRC’s asserted

injuries.

Merits

Even though AMRC will likely to be able to survive the various jurisdictional and

threshold issued raised by Defendants in relation to its appraisal-related challenges, that is

only half the battle—AMRC must also establish that it is likely to prevail on those

challenges (or at least demonstrate the existence of serious questions going to the merits).

AMRC has failed to make that showing. As background, the challenged appraisal

concerns the MCZ parcel, which comprises “1,655.53 acres of vacant land east of Superior

and just south of U.S. 60. . . . Much of the property is within the site of the proposed

Resolution Copper underground copper mine.” (AMRC, Doc. 93-3 at 7.) In the appraisal

report, the Forest Service acknowledged that “[i]t is understood that a significant porphyry

copper deposit exists beneath the Subject Property.” (Id. at 9.) Nevertheless, the Forest

Service declined to consider the value of that copper when appraising the value of the MCZ

parcel because that copper is “subject . . . to 148 unpatented mining claims held by

Resolution Copper.” (Id.) The Forest Service explained: “An unpatented mining claim is

a conditional, possessory, interest in real property ownership of a mineral estate in

accordance with the Mining Law . . . . Since the Subject Property is encumbered by mining

claims held by a party other than the United States; said mining claims confer all rights to

locatable minerals to that party in accordance with the Mining Law and are not part of the

estate owned by the United States.” (Id. at 10, citations omitted.) The Forest Service

concluded: “The Subject Property was regarded as a split estate since the unpatented

mining claims confer all rights to locatable minerals. . . . Therefore, the total purchase

price is allocated to the surface interest, with no adjustments applied.” (Id. at 12.)

AMRC raises an array of challenges to this appraisal, all of which hinge, one way

or another, on the appraiser’s failure to include the value of the copper underlying the MCZ

parcel in the value of the parcel. (See, e.g., AMRC, Doc. 87 at 8 [“[T]he appraisal for the

MCZ parcel arbitrarily failed to include any value for the tens of billions of dollars worth

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of copper, valuing the entire 1,655-acre parcel at less than $2 million.”]; id. [“[T]he MCZ

appraisal is based on the erroneous assumption that the value of the 35 billion pounds of

copper on these federal lands is zero, simply because Resolution has filed mining claims

on these lands.”]; id. at 12 [“There is simply no rational, economic comparison between

the types of nondescript surface lands that the appraiser considered as comparable sales

and the invaluable MCZ parcel, which sits atop nearly 90 percent of the world’s third-

largest known copper deposit (35 of the estimated 40 billion pounds).”].)

In the Court’s view, the appraiser’s approach was correct and AMRC’s criticisms

all flow from a misunderstanding of how unpatented mining claims work. In United States

v. Shumway, 199 F.3d 1093 (9th Cir. 1999), the Ninth Circuit provided an overview of this

“relatively arcane area of law.” Id. at 1097. The court explained that under “the Mining

Law of 1872”—which, despite being the subject of “much contemporary hostility,”

“remains the law”—“the finder of valuable minerals on government land is entitled to

exclusive possession of the land for purposes of mining and to all the minerals he extracts.”

Id. at 1098-99. The court further explained that although “[t]he phrase ‘mining claim’ . . .

probably connotes to most laymen an unsupported assertion or demand from which no

legal rights can be inferred,” “that is emphatically not so” under the Mining Law of 1872

because “the word ‘claim’ in connection with the phrase ‘mining claim’ represents a

federally recognized right in real property.” Id. at 1099-1100. The court continued:

The Supreme Court has established that a mining “claim” is not a claim in

the ordinary sense of the word—a mere assertion of a right—but rather is a

property interest, which is itself real property in every sense, and not merely

an assertion of a right to property. . . . In United States v. North American

Transportation & Trading Co., the Army had been sent to Nome to bring

order during its gold rush, and the president established a federal reservation

for the Army base. The Court, in an opinion by Justice Brandeis, held that a

company holding a mining claim at the site was entitled to compensation for

the taking, with interest from the date of the reservation. This case

establishes that the government cannot reserve its own land from an

unpatented mining claim without paying the owner the value of the claim,

because an unpatented mining claim is property.

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Id. at 1100 (citations omitted).

Recently, in Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv., 33 F.4th

1202 (9th Cir. 2022), the Ninth Circuit further addressed these concepts. There, the court

explained that “[t]he Mining Law of 1872 . . . gives to United States citizens free of charge,

except for small filing and other fees, mining rights upon discovery of ‘valuable minerals’

on federal land.” Id. at 1208. “[T]he Mining Law remains in effect for much federal land

and for many minerals, including copper. Within the scope of its operation, the Mining

Law continues to be a source of wealth—sometimes great wealth—for those who discover

valuable minerals on federal land.” Id. at 1209. “A miner who finds valuable minerals

may ‘locate’ (or ‘stake’) a claim and thereby obtain an ‘unpatented mining claim.’ A valid

unpatented claim gives the miner the right to ‘occupy’ the claim and to mine the minerals

free of charge.” Id. (citations omitted).

In light of these principles, it is difficult for the Court to find any fault in the Forest

Service’s appraisal. Resolution Copper already effectively owns the exclusive right to

mine the copper underlying the MCZ parcel.

Development Corp., 295 U.S. 639, 644 (1935) (explaining that an unpatented mining claim

“is property in the fullest sense of that term” and “is alienable, inheritable, and taxable”);

Ctr. for Biological Diversity, 33 F.4th at 1209 (“A valid unpatented claim gives the miner

the right to ‘occupy’ the claim and to mine the minerals free of charge.”); Shumway, 199

F.3d at 1100 (“[T]he government cannot reserve its own land from an unpatented mining

claim without paying the owner the value of the claim, because an unpatented mining claim

is property.”). See also Ctr. for Biological Diversity v. U.S. Dept. of Interior, 623 F.3d

633, 643 (9th Cir. 2010) (“Asarco has a right to engage in mining on the selected lands

under the Mining Law even if the exchange does not proceed, based on its 747 unpatented

mining and mill site claims.”); Kunkes v. United States, 32 Fed. Cl. 249, 252 (1994), aff’d,

78 F.3d 1549 (Fed. Cir. 1996) (“Although legal title to the land remains in the United

States, the claimant enjoys a valid, equitable title in the claim, possessing all of the

incidents of real property.”). It would be odd if the value of that copper were nevertheless

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included in the value of the federal government’s interest in the parcel. Following that

approach would force Resolution Copper, as part of the land exchange, to pay the federal

government for the copper it effectively already owns the exclusive right to mine. The

Court thus agrees with Resolution Copper that “AMRC’s real complaint is not with the

MCZ appraisal but with the General Mining Law of 1872” and that adopting AMRC’s

argument “that Resolution should pay the United States for rights it already owns in the

MCZ would nullify the 1872 Law and 150 years of Supreme Court precedent, as well as

take Resolution’s property.” (AMRC, Doc. 94 at 37-38.) As the Federal Defendants

correctly note in their response: “[E]ven if Congress had never enacted [SALECA],

Resolution Copper would retain the exclusive rights to exploit the locatable minerals

(assuming it paid the annual claim maintenance fee), and those rights would remain an

encumbrance on the land owned by the United States.” (AMRC, Doc. 93 at 39.)

In its motion papers, AMRC never directly addresses the absurd consequences that

would flow from adopting its position. Nor do AMRC’s more granular arguments change

the analysis. For example, although the federal government may still technically “own[]

the mineral estate” underlying the MCZ parcel (AMRC, Doc. 87 at 8), that interest does not

include the right to mine the minerals, which belongs to Resolution Copper. Ctr. for

Biological Diversity, 33 F.4th at 1209. AMRC also identifies various regulations and

standards that call for appraisers to include the value of “minerals” in any appraisal (AMRC,

Doc. 87 at 9-10; AMRC, Doc. 97 at 7-11), but those general statements do not explain how

to perform the valuation when, as here, the minerals are subject to unpatented mining

claims.7 Finally, AMRC’s “highest and best use” and “must be appraised as private lands”

arguments (AMRC, Doc. 87 at 11-13) rely on the false premise that, in those scenarios,

Resolution Copper’s exclusive right to mine the minerals would somehow cease to exist.8

Indeed, the appraisal guidelines appear to recognize that valuing “mineral

properties” can be complicated by the existence of mining claims. (AMRC, Doc. 87-17 at

57 [“Appraisers valuing mineral properties impacted by the 1872 Mining Law are advised

to coordinate with client agency staff to clarify the approaches to valuing those interests.”].)

AMRC also raises, in its reply brief, what the Court perceives to be a new argument

not properly raised in AMRC’s motion—that the appraiser should have disregarded

Resolution Copper’s unpatented mining claims to the copper underlying the MCZ parcel

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AMRC also places heavy emphasis on certain statements that were made during the

legislative process surrounding SALECA’s enactment. (AMRC, Doc. 87 at 9-10

[discussing congressional testimony by a Forest Service representative, a report by the

Congressional Budget Office, and a House report].) As an initial matter, although those

statements reflect a belief that the value of “mineral deposits” or “ore deposits” would be

included in the appraised value of the federal land, that belief is not necessarily inconsistent

with the approach the Forest Service took in this case. Although AMRC confines its

objections to the appraisal related to the MCZ parcel, the Forest Service also completed an

appraisal of a different parcel of federal land to be included in the land exchange, called

the Mineral Withdrawal Area (or “MWA”) parcel. (AMRC, Doc. 87-12.) The MWA parcel

also sits atop large and valuable copper deposits, but those deposits—unlike the deposits

underlying the MCZ parcel—are not the subject of unpatented mining claims held by

because Resolution Copper has never “actually determine[d] whether the mine is

financially viable.” (AMRC, Doc. 97 at 7-8.) First, “[t]he district court need not consider

arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997

(9th Cir. 2007). Second, at any rate, it was logical—and certainly not arbitrary and

capricious—for the appraiser to operate from the premise that the copper deposits

underlying the MCZ parcel are valuable enough to validate Resolution Copper’s mining

claims. Indeed, AMRC itself asserts in its motion that the MCZ parcel includes “tens of

billions of dollars worth of copper,” is “invaluable,” and “sits atop nearly 90 percent of the

world’s third-largest known copper deposit (35 of the estimated 40 billion pounds).”

(AMRC, Doc. 87 at 8, 12.) Furthermore, SALECA can be reasonably interpreted as

reflecting a congressional determination that Resolution Copper’s mining claims are valid

and that the contemplated mine will be financially viable. 16 U.S.C. § 539p(i)(C)

(“Nothing in this section shall interfere with, limit, or otherwise impair, the unpatented

mining claims . . . currently held by Resolution Copper on the Federal land, nor in any way

change, diminish, qualify, or otherwise impact Resolution Copper’s rights and ability to

conduct activities on the Federal land under such unpatented mining claims and the general

mining laws of the United States.”). Center for Biological Diversity is not to the contrary,

as the disputed issue in that case was not whether the mining company had valid mining

claims to the land containing the copper deposits but rather whether the company’s mining

claims to the adjacent land (where the mining waste would be dumped) were valid. Ctr.

for Biological Diversity, 33 F.4th at 1212 (“Rosemont proposes to dump 1.9 billion tons of

waste rock onto 2,447 acres of nearby National Forest land on which it has mining claims,

to an average depth of 700 feet. Undisputed evidence in the administrative record shows

that no valuable minerals have been found on the mining claims that Rosemont proposes

to occupy with its waste rock.”); id. at 1217 (“Rosemont owns valid mining rights on the

National Forest land where it would dig its proposed pit mine. Mining rights on that land

were given by the federal government under the Mining Law, essentially free of charge.

Rosemont has now asked the Forest Service to authorize it to permanently occupy with its

waste rock 2,447 acres of additional National Forest land on which it does not have valid

mining rights, also essentially free of charge.”).

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Resolution Copper. As a result, the Forest Service included the value of those copper

deposits when appraising the value of the MWA parcel. (Id. at 12 [“The property rights

for the subject includes the surface and sub-surface mineral interests.”].) In other words,

the Forest Service did include the value of at least some of the relevant mineral deposits in

its appraisals, which is broadly consistent with the expectations reflected in the cited

legislative history materials.9

More important, the isolated statements that AMRC has been able to pull from the

extensive legislative record surrounding SALECA’s enactment shed little light on how to

construe the statutory text that Congress ultimately chose to adopt. Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 523 (2018) (“[L]egislative history is not the law. It is the business of

Congress to sum up its own debates in its legislation, and once it enacts a statute we do not

inquire what the legislature meant; we ask only what the statute means.”) (cleaned up). To

that point, SALECA contains a clear textual indication that Congress was aware of

Resolution Copper’s unpatented mining claims and intended to preserve them: “Nothing

in this section shall interfere with, limit, or otherwise impair, the unpatented mining claims

. . . currently held by Resolution Copper on the Federal land, nor in any way change,

diminish, qualify, or otherwise impact Resolution Copper’s rights and ability to conduct

activities on the Federal land under such unpatented mining claims and the general mining

laws of the United States.” 16 U.S.C. § 539p(i)(C).

One final point bears emphasizing. Because SALECA does not create a private

right of action, AMRC must assert its appraisal-related challenges via the APA. Under the

APA, final agency action can only be set aside if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “This standard

of review is highly deferential, presuming the agency action to be valid and affirming the

agency action if a reasonable basis exists for its decision.” Northwest Ecosystem Alliance

To the extent AMRC argues the cited legislative history materials reflect a belief

“that the appraisals of both the MWA and MCZ parcels must include the value of the

minerals” (AMRC, Doc. 87 at 9, emphasis omitted), the Court disagrees—the cited

passages are ambiguous as to which minerals and ore would be included in the valuation

and do not specifically state that the minerals underlying both parcels would be included.

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v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). “This rule ensures that

the reviewing court affords sufficient deference to the agency’s action. The APA gives an

agency substantial discretion to rely on the reasonable opinions of its own qualified experts

even if, as an original matter, a court might find contrary views more persuasive.” San

Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971, 992 (9th Cir. 2014)

(cleaned up). “A court simply ensures that the agency has acted within a zone of

reasonableness and, in particular, has reasonably considered the relevant issues and

reasonably explained the decision.” FCC v. Prometheus Radio Project, 592 U.S. 414, 423

(2021).

These principles are relevant here because AMRC has failed to identify any

appraisal standard that specifically requires the value of minerals that are the subject of

unpatented mining claims to be included when calculating the federal government’s

interest in the parcel of land that contains those minerals; failed to identify any prior

appraisal adopting that approach; and failed to identify any judicial decision suggesting

that approach is permissible (let alone required). Given this backdrop, it is difficult to see

how the challenged appraisal decision—which followed the recommendations of an expert

whose credentials AMRC has not challenged—could be deemed not just wrong, but so

wrong as to qualify as arbitrary and capricious. Cf. Greer Coalition, Inc. v. U.S. Forest

Serv., 2011 WL 671750, *9-16 (D. Ariz. 2011) (rejecting various objections to appraisal,

noting that “courts should not overturn agency decisions when the agency has considered

relevant factors and reached a rational conclusion,” and emphasizing that “[t]his is

particularly true where, as in the case of these appraisals, the agency chooses to rely on the

opinions of qualified experts”). Put another way, even if the appraisal decision was

wrong—and the Court is skeptical it was—it at least fell within the “zone of

reasonableness,” Prometheus Radio Project, 592 U.S. at 423, given the absence of contrary

authority and the presence of a reasoned explanation for the decision.

Conclusion As To Appraisal Claims

Although AMRC will likely be able to overcome the jurisdictional and other

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threshold challenges that Defendants have raised to its appraisal-related claims, AMRC has

not shown a likelihood of success on the merits of those claims or even serious questions

going to the merits of those claims.

NEPA Claims

Threshold Issues

Defendants’ jurisdictional and other threshold challenges to Plaintiffs’ NEPA

claims raise unsettled, complicated questions. To understand why, it is necessary to take a

step back and consider how SALECA’s statutorily-mandated process for performing an

environmental impact analysis differs from the typical process for performing such an

analysis.

Ordinarily, “[t]he NEPA review process concludes in one of two ways: (1) the

agency determines through an EA [environmental assessment] that a proposed action will

not have a significant impact on the environment and issues a FONSI [finding of no

significant impact], or (2) the agency determines that the action will have a significant

impact and issues an EIS and record of decision.” Envt’l Defense Ctr., 36 F.4th at 868

(emphasis added). As the italicized text indicates, the issuance of the FEIS is typically not

the final step in the agency’s analysis in a case where a FEIS is required—instead, the final

step is the issuance of the final record of decision (“ROD”). See, e.g., Seven County

Infrastructure Coalition, 145 S. Ct. at 1511 (“Because an EIS is only one input into an

agency’s decision and does not itself require any particular substantive outcome, the

adequacy of an EIS is relevant only to the question of whether an agency’s final decision

. . . was reasonably explained.”); Oregon Natural Resources Council v. Harrell, 52 F.3d

1499, 1508 (9th Cir. 1995) (“A record of decision comes at the end of the pre-decision,

environmental review process and is intended to make public the agency’s decision, to

identify the alternatives considered and which are environmentally preferable, to state

whether all practicable means to avoid or minimize environmental harm have been

adopted, and to summarize the monitoring and enforcement program that has been

adopted.”). For these reasons, the usual rule is that “[o]nce an EIS’s analysis has been

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solidified in a ROD, an agency has taken final agency action.” Oregon Natural Desert

Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1118 (9th Cir. 2010).

The environmental review process mandated by SALECA differs in some ways. As

noted, SALECA provides that “[p]rior to conveying Federal land under this section, the

Secretary shall prepare a single environmental impact statement under [NEPA], which

shall be used as the basis for all decisions under Federal law related to the proposed mine

and the Resolution mine plan of operations and any related major Federal actions

significantly affecting the quality of the human environment, including the granting of any

permits, rights-of-way, or approvals for the construction of associated power, water,

transportation, processing, tailings, waste disposal, or other ancillary facilities.” 16 U.S.C.

§ 539p(c)(9)(B). In isolation, this provision is consistent with the typical NEPA review

process in that it contemplates the issuance of a FEIS followed by the subsequent issuance

of a ROD setting forth the agency’s final decisions regarding various discretionary matters.

However, SALECA also contains the following additional provision: “Not later than 60

days after the date of publication of the [FEIS], the Secretary shall convey all right, title,

and interest of the United States in and to the Federal land to Resolution Copper.” Id.

§ 539p(c)(10). In other words, SALECA tethers a non-discretionary act—the conveyance

of title necessary to complete the land exchange—to the issuance of the FEIS. SALECA

also effectively requires this non-discretionary act to occur before the issuance of the ROD,

because “[t]he Final ROD will not be signed until after the conclusion of the objection

process” and “this process is unlikely to conclude before the end of 2025.” (San Carlos,

Doc. 114 at 4.)

These unique features of SALECA—the parties have not identified any similar

statute—make it particularly challenging to apply the relevant Ninth Circuit and Supreme

Court authorities addressing the concepts of redressability, final agency action, and

discretionary agency action in NEPA cases. From the Court’s perspective, attempting to

applying those precedents has sometimes been akin to attempting to pound a round peg

into a square hole—the principles and standards set forth in other APA and NEPA cases

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don’t map neatly onto how SALECA operates.

The unique features of SALECA also create other complications. One purpose of

the environmental review process under NEPA is to require an agency to provide a

reasoned comparison of the projected benefits and environmental consequences of a

proposed course of action. Baltimore Gas & Elec. Co. v. Natural Resources Defense

Council, 462 U.S. 87, 97-98 (1983) (“NEPA has twin aims. First, it places upon an agency

the obligation to consider every significant aspect of the environmental impact of a

proposed action. Second, it ensures that the agency will inform the public that it has indeed

considered environmental concerns in its decisionmaking process. Congress in enacting

NEPA, however, did not require agencies to elevate environmental concerns over other

appropriate considerations. Rather, it required only that the agency take a ‘hard look’ at

the environmental consequences before taking a major action. The role of the courts is

simply to ensure that the agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is not arbitrary or capricious.”)

(cleaned up). Thus, “[i]n addition to the proposed agency action, every EIS must rigorously

explore and objectively evaluate all reasonable alternatives to that action. . . . A no action

alternative in an EIS allows policymakers and the public to compare the environmental

consequences of the status quo to the consequences of the proposed action.” Ctr. for

Biological Diversity, 623 F.3d at 642 (cleaned up).

Nevertheless, SALECA contemplates that the land exchange will occur within 60

days of, and regardless of the analysis set forth in, the FEIS. This has the feel of a “ready,

fire, aim” approach because it suggests, as Resolution Copper’s counsel acknowledged

during oral argument, that the land exchange must go forward even if the Forest Service

determines it will result in catastrophic environmental consequences. Again, this is not

how the environmental review process usually works under NEPA, which complicates the

task of applying existing NEPA precedents.

…

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Standing/Redressability

The Federal Defendants contend that Plaintiffs cannot establish redressability in

relation to their NEPA claims “because there is no chance that additional environmental

review could prompt the Forest Service to decide not to complete the land exchange to

which Plaintiffs trace their injury. The decision to transfer Oak Flat to Resolution Copper

was made by Congress, and the Forest Service does not have discretion to take another

course.” (AMRC, Doc. 93 at 14.) Similarly, Resolution Copper argues: “Even if Plaintiffs

could convince this Court that flaws in the FEIS . . . require additional study or correction,

Plaintiffs cannot show that the Forest Service ‘could be influenced’ ultimately to do

anything other than comply with its duty under the Act to proceed with the land exchange.”

(AMRC, Doc. 94 at 14.)

Although this argument has some force, the Court perceives two related weaknesses

in it. First, it seems to presuppose that the Court lacks authority to order vacatur of the

FEIS as a remedy even if the FEIS is deemed deficient under NEPA. The question of

vacatur is addressed in later portions of this order, but assuming for now that vacatur is an

option, that remedy would, at least temporarily, prevent the land exchange from occurring

(because the exchange can only occur, per § 539p(c)(1), “after” the date of publication of

the FEIS).

Second, Defendants’ argument also overstates the sort of relief that is required to

establish redressability for a procedural injury. In W. Watersheds Project v. Grimm, 921

F.3d 1141 (9th Cir. 2019), environmental organizations brought an “action to enjoin the

federal government’s participation in the killing of gray wolves in Idaho pending additional

analysis under” NEPA. Id. at 1143. The district court concluded the plaintiffs lacked

standing because the challenged activity would likely continue to occur regardless of the

injunction, and thus the plaintiffs could not establish redressability, but the Ninth Circuit

reversed, explaining that “[i]f Wildlife Services were to cease its activities—even

temporarily—it is possible that fewer wolves would be killed, particularly in the short

term.” Id. at 1148.

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Similarly, in Center for Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017),

after the Department of Defense (“DOD”) approved the location, construction, and

specifications for a military base in Okinawa, Japan, an environmental organization sought

“to protect a local animal population and cultural property from the base’s alleged adverse

effects by bringing claims for declaratory and injunctive relief based on the Government’s

alleged violations of [NHPA].” Id. at 808. The DOD’s decision to construct the military

base arose from a bilateral executive agreement between the United States and Japan, id.

at 811, and the Ninth Circuit noted that the plaintiff lacked standing to challenge the

executive agreement itself or the DOD’s decision to construct the base, id. at 819.

Nevertheless, even though the construction of the base would eventually go forward, the

Ninth Circuit concluded the plaintiff had standing to seek an injunction to prevent “any

activities in furtherance of the [base construction], including granting permits . . . until [the

DOD] complies with section 402 of the NHPA.” Id. at 826 (cleaned up).

Here, too, if the land exchange were enjoined “temporarily” and “in the short term,”

W. Watersheds Project, 921 F.3d at 1148, that would redress at least some of Plaintiffs’

injuries. See also Ctr. for Biological Diversity v. Export-Import Bank of the U.S., 894 F.3d

1005, 1013 (9th Cir. 2018) (explaining that, in a prior case, the Ninth Circuit applied “the

relaxed standard for procedural-injury” to hold “that a change in agency decisionmaking

(from granting the permits to denying the permits, even temporarily)” was sufficient to

establish redressability) (emphasis added). As Plaintiffs’ counsel explained during oral

argument, every day that Oak Flat remains intact is another day that members of the Tribe

can use the land in its current, unspoiled form for religious purposes and ceremonies. Thus,

even a temporary delay may, for example, allow another Sunrise Ceremony to take place.

See generally Apache Stronghold, 145 S. Ct. at 1480-82 (“[T]ribal members have

worshipped at Oak Flat for centuries, conducting there a number of religious ceremonies

that cannot take place anywhere else. One example, the ‘Sunrise Ceremony,’ is a multiday

coming-of-age ceremony for young women. . . . Tribal members believe the destruction

of Oak Flat will close off a portal to the Creator forever and will completely devastate the

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Western Apaches’ spiritual lifeblood. For the women who came of age at Oak Flat in

particular, that means their ties to Chí’chil Biłdagoteel, and to all of the girls past, present,

who have had their Sunrise Ceremony there, will be severed.”) (Gorsuch, J., dissenting

from the denial of certiorari) (cleaned up). This will make all the difference in the world

to the young women who are allowed to participate in that ceremony, even if it does not

ensure that future ceremonies will take place that would benefit additional young women.

Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008),

which Defendants view as conclusively foreclosing any claim of redressability, is

distinguishable. There, three environmental plaintiffs challenged the validity of a 1999

biological opinion (“BiOp”) that the National Marine Fisheries Service (“NMFS”)

prepared to advise the United States on the implementation of a treaty with Canada and

“evaluate the effects of . . . the Treaty on the recovery and survival of listed salmon.” Id.

at 1222-23. The BiOp concluded that “Canadian take under the Treaty was not likely to

jeopardize the continued existence of threatened or endangered salmon stocks.” Id. at

1224. The Ninth Circuit rejected the plaintiffs’ challenge to the validity of the BiOp for

lack of standing, explaining that even though the “defective BiOp could theoretically be

set aside,” the court lacked the power to require the State Department to withdraw from the

treaty—the ultimate basis for the plaintiffs’ injury—and thus that injury was beyond

redress. Id. at 1226.

Although Salmon Spawning has some parallels to this case, an important difference

is that the Court may have the power (subject to the additional vacatur discussion infra) to

order the Forest Service to vacate the FEIS. That remedy would at least temporarily

preclude the land exchange from going forward, because SALECA identifies the issuance

of the FEIS as a condition precedent to the land exchange. In contrast, there was no step

the court in Salmon Spawning could take that would undo, even temporarily, the treaty

between the United States and Canada.10 See also Ctr. for Biological Diversity, 868 F.3d

Additionally, the plaintiffs in Salmon Spawning asserted a separate claim for relief

based on the theory that “the State Department and NMFS were obligated by [the

Endangered Species Act] and its implementing regulations to reinitiate consultation on the

1999 BiOp” following the discovery of new methods and criteria for evaluating the impact

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at 818-19 (distinguishing Salmon Spawning).

For these reasons, Plaintiffs have established a likelihood (albeit not a certainty) that

they will be able to satisfy the “relaxed” requirement of redressability in a case involving

an alleged procedural injury, as “there is ‘some possibility’ that the requested relief . . . will

redress their alleged harms.” Save Bull Trout, 51 F.4th at 1106-07. See also Salmon

Spawning, 545 F.3d at 1226 (“Plaintiffs alleging procedural injury can often establish

redressibility [sic] with little difficulty . . . .”).

Implicit Preclusion Of Judicial Review

Defendants’ “implicit preclusion” argument fares no better in relation to Plaintiffs’

NEPA claims than it did in relation to AMRC’s appraisal claims. SALECA does not

expressly preclude judicial review and a strong presumption exists in favor of judicial

review. Bowen, 476 U.S. at 670-72; KOLA, Inc, 882 F.2d at 363. The statutory features

that Defendants emphasize are too ambiguous to overcome this presumption. Indeed,

SALECA provides that “[e]xcept as otherwise provided in this section, the Secretary shall

carry out the land exchange in accordance with the requirements of the National

Environmental Policy Act of 1969.” 16 U.S.C. § 539p(A)(9). The natural reading of this

provision is that judicial review under NEPA (via the APA) is available. True, the initial

prefatory phrase “[e]xcept as otherwise provided in this section” suggests there may be

some deviation from the norm in how that NEPA review is conducted, but that is not the

same thing as a clear, unambiguous expression of congressional intent to preclude any

judicial review of NEPA claims related to the land exchange.

Final Agency Action

Because Plaintiffs must “proceed under the APA in order to challenge claimed

violations of NEPA,” they also must comply with the APA’s “series of procedural

of commercial fishing on wild salmon. Salmon Spawning, 545 F.3d at 1229. Although the

Ninth Circuit expressed doubt about “whether reinitiation will ultimately benefit the

[plaintiffs],” it declined to dismiss that claim for lack of standing because the redressability

requirement is diminished for procedural injuries and “[u]nlike the other claims, this claim

is a forward-looking allegation whose remedy rests in the hands of federal officials and

does not hinge on upsetting the Treaty.” Id.

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requirements [that] litigants must fulfill before bringing suit in federal court,” including

that “the challenged agency action must be final.” San Carlos Apache Tribe v. United

States, 417 F.3d 1091, 1093, 1096-97 (9th Cir. 2005). As noted, the following two-part

test governs whether agency action is considered final: first, the action must mark the

consummation of the agency’s decision-making process; and second, the action must

determine rights or obligations or be one from which legal consequences will flow. Envt’l

Defense Ctr., 36 F.4th at 867-68.

The second element of the finality test is likely satisfied in relation to Plaintiffs’

NEPA claims. SALECA provides that “[n]ot later than 60 days” after the FEIS is

published, the Forest Service “shall convey all right, title, and interest of the United States

in and to the Federal land to Resolution Copper.” 16 U.S.C. § 539p(c)(10). This suggests

the land exchange is a “legal consequence” that will “flow” from the issuance of the FEIS.

Although Plaintiffs have not identified any prior case concluding that a land exchange may

qualify as a “legal consequence” for purposes of this test, this absence of authority is

unsurprising given SALECA’s uniqueness and is not an obstacle to relief, given that the

finality inquiry is meant to be “pragmatic and flexible” and “focus[] on the practical and

legal effects of the agency action.” Tohono O’odham Nation, 138 F.4th at 1200 (cleaned

up).

The first element of the finality test—whether there has been a “consummation of

the agency’s decision-making process”—presents a more complicated question. As noted,

in an ordinary NEPA process, the issuance of the FEIS does not mark the completion of

the agency’s decision-making process—instead, that process only reaches completion after

the agency issues its final ROD (which has not yet occurred here). For this reason, the

Federal Defendants argue that “[a]s to the discretionary decisions that are before the Forest

Service, neither the FEIS nor the Draft ROD represent the consummation of that process.

The Forest Service’s decision-making process is ongoing and will not be complete until

the Final ROD is signed. Any contrary interpretation would render the entire objection

process meaningless.” (AMRC, Doc. 93 at 9.) Meanwhile, Plaintiffs accuse Defendants of

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focusing on the wrong decision-making process and argue that the relevant process here

was simply the decision to issue the FEIS, which has now been completed. (AMRC, Doc.

97 at 12 [“The FEIS here is final as it concluded the agency’s responsibilities under NEPA.

. . . Under § 3003, the FEIS is the Forest Service’s final word before the Exchange is

executed and title is conveyed to RCM.”]; San Carlos, Doc. 119 at 5 [“[B]ecause SALECA

requires no further decisions—other than the decision to publish—before Oak Flat is

transferred, the 2025 FEIS necessarily consummates Federal Defendant’s environmental

review and decision-making processes under SALECA, NEPA, and NHPA.”].)11

Defendants likely have the better of this argument. As an initial matter, although

Plaintiffs identify several passages and parentheticals from Ninth Circuit decisions that can

be construed, at least in isolation, as suggesting that the issuance of a FEIS may alone

qualify as final agency action for purposes of a NEPA claim, 12 Defendants persuasively

explain why the better reading of those cases is that final agency action only occurs when

the FEIS and the ROD have been published. (AMRC, Doc. 93 at 9-10; AMRC, Doc. 94 at

Plaintiffs also cite cases recognizing that an agency’s choice to embark on a

particular course of conduct without preparing an EIS may constitute final agency action

in the NEPA context. Prutehi Litekyan: Save Ritidian v. U.S. Dep’t of Airforce, 128 F.4th

1089, 1099-1100 (9th Cir. 2025) (final agency action existed where one agency (the Air

Force) applied to a different agency (the Guam EPA) for the renewal of a waste disposal

permit without “tak[ing] the requisite ‘hard look’ at the environmental impacts . . . and

appropriately engag[ing] the public before committing to its plan for disposal”);

Rattlesnake Coalition v. U.S. E.P.A., 509 F.3d 1095, 1104 (9th Cir. 2007) (“[A]n agency’s

decision not to issue an EIS concludes the agency’s procedural inquiry into the

environmental impact of a proposed project and therefore constitutes a final agency action,

regardless of whether the agency has decided to fund the project.”). However, as noted,

the “NEPA review process concludes in one of two ways: (1) the agency determines

through an EA that a proposed action will not have a significant impact on the environment

and issues a FONSI, or (2) the agency determines that the action will have a significant

impact and issues an EIS and record of decision.” Envt’l Defense Ctr., 36 F.4th at 868.

Plaintiffs’ cited cases are thus unhelpful because they address situations where the agency

neglected environmental review altogether or achieved final agency action through an

EA/FONSI. Neither case addresses the FEIS/ROD option (which is the option the Forest

Service pursued here).

Envt’l Defense Ctr., 36 F.4th at 868 (“We have repeatedly held that final NEPA

documents are final agency actions.”); Oregon Natural Desert Ass’n, 625 F.3d at 1118

(parenthetical stating that, according to the Eighth Circuit, the Supreme Court “has strongly

signaled that an agency’s decision to issue . . . an environmental impact statement is a ‘final

agency action’ permitting immediate judicial review under NEPA”) (citation omitted). In

the order addressing Plaintiffs’ earlier round of preliminary injunction motions, the Court

simply noted that these cases might support Plaintiffs’ position before clarifying that it was

not yet deciding the issue. (AMRC, Doc. 81 at 11 & n.3.)

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17-18.) Indeed, one of Plaintiffs’ cited cases makes that exact point: “Once an EIS’s

analysis has been solidified in a ROD, an agency has taken final agency action, reviewable

under § 706(2)(A).” Oregon Natural Desert Ass’n, 625 F.3d at 1118 (emphasis added).

So do other cases from within the Ninth Circuit. See, e.g., Oregon Natural Resources

Council, 52 F.3d at 1508 (“A [ROD] comes at the end of the pre-decision, environmental

review process . . . .”); Oregon Nat. Desert Ass’n v. Bushue, 644 F. Supp. 3d 813, 830 (D.

Or. 2022) (“NEPA review does not dictate a final agency decision until the agency adopts

the proposed alternative with a ROD.”). The Supreme Court also recently emphasized this

point: “Because an EIS is only one input into an agency’s decision and does not itself

require any particular substantive outcome, the adequacy of an EIS is relevant only to the

question of whether an agency’s final decision . . . was reasonably explained.” Seven

County Infrastructure Coalition, 145 S. Ct. at 1511. “[R]eview of an agency’s EIS is not

the same thing as review of the agency’s final decision concerning the project.” Id. at 1514.

Moreover, even if it might be theoretically possible for an EIS alone to qualify as

final agency action in some other context, the analysis here must be “pragmatic and

flexible” and take account of SALECA’s specific features. SALECA provides that the

“[e]nvironmental analysis” set forth in the FEIS is to “be used as the basis for all decisions

under Federal law related to the proposed mine and the Resolution mine plan of operations

and any related major Federal actions significantly affecting the quality of the human

environment, including the granting of any permits, rights-of-way, or approvals for the

construction of associated power, water, transportation, processing, tailings, waste

disposal, or other ancillary facilities.” 16 U.S.C. § 539p(c)(9)(B) (emphasis added). This

is a strong indication that the environmental analysis set forth in the FEIS was not intended

to serve as a “decision” in and of itself—instead, it was simply intended to help inform the

Forest Service’s separate discretionary “decisions under Federal law” regarding pipelines,

permits, and the like that have not yet been made with finality (and will eventually be set

forth in the ROD).

This conclusion is also consistent with the line of Ninth Circuit cases stating that

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courts should “look to see whether the agency has rendered its last word on the matter”

when evaluating the first element of Bennett’s finality test. Oregon Nat. Desert Ass’n v.

U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006). See also Whitman v. Am. Trucking

Associations, 531 U.S. 457, 478 (2001) (“Only if the EPA has rendered its last word on the

matter in question, is its action final and thus reviewable.”). The Forest Service hasn’t

“rendered its last word” on any of the discretionary decisions it will be making in relation

to the land exchange because it still has not issued the ROD. The proposed decisions

addressed in the DROD are still subject to public review and revision.

With all of that said, it is a challenge to apply the Ninth Circuit’s “final agency

action” precedents here because SALECA contemplates a unique environmental review

process that deviates from how that process usually operates. Congress’s choice to make

the issuance of the FEIS, rather than the issuance of the ROD, the triggering event for the

land exchange makes it at least possible to conceptualize the FEIS as the agency’s “final

word” on the matter of the land exchange, even though the FEIS does not inform the

decision to transfer the land. This uncertainty raises serious questions about how to

characterize the issuance of the FEIS under the first step of Bennett’s “pragmatic and

flexible” finality test.

No Agency Discretion

The Court is unpersuaded by Defendants’ “no agency discretion” arguments as

applied to Plaintiffs’ NEPA claims. In advancing those arguments, Defendants rely on

cases explaining that the question of whether NEPA applies ordinarily turns on whether an

agency has discretion in relation to the underlying project that would be the subject of the

environmental impact analysis. See, e.g., Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th

Cir. 1995) (explaining that NEPA’s “procedural requirements are triggered by a

discretionary federal action”); Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267

F.3d 1144, 1151 (D.C. Cir. 2001) (“The touchstone of whether NEPA applies is discretion

. . . . If, however, the agency does not have sufficient discretion to affect the outcome of

its actions, and its role is merely ministerial, the information that NEPA provides can have

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no affect on the agency’s actions, and therefore NEPA is inapplicable.”). Here, Congress

has already specified that NEPA applies—the Forest Service “shall carry out the land

exchange in accordance with the requirements of [NEPA]” and “shall prepare a single

environmental impact statement under [NEPA].” 16 U.S.C. § 539p(c)(9)(A)-(B).

Additionally, the Forest Service possesses discretion with respect to many issues

related to the land exchange, “including the granting of any permits, rights-of-way, or

approvals for the construction of associated power, water, transportation, processing,

tailings, waste disposal, or other ancillary facilities.” Id. § 539(c)(9)(B). It is permissible,

under NEPA, for Plaintiffs to challenge the adequacy of the Forest Service’s analysis of

the environmental impact of those decisions. That challenge may be premature, due to the

likely absence of “final agency action,” but it does not fail for want of agency discretion.

In arguing otherwise, Defendants conflate the substance of Plaintiffs’ NEPA challenge

with the remedy they seek. (San Carlos, Doc. 105 at 14 [“In an effort to defeat standing

and avoid judicial review, Federal Defendants and Resolution reduce the Tribe’s

challenges to one contesting Oak Flat’s transfer, which they assert is not a ‘decision’ within

the meaning of the APA because Congress gave them no discretion. The Tribe, however,

does not challenge the decision to convey Oak Flat as arbitrary and capricious. Instead,

the Tribe asserts that the Forest Service’s decision to publish the 2025 FEIS, as well as the

decisions in it related to various action alternatives are arbitrary and capricious.”].)

Vacatur As A Remedy

As noted, Defendants argue that because the usual remedy under the APA and

NEPA for a flaw in an environmental impact statement is not to order vacatur of the

statement but simply to remand to the agency for additional analysis or consultation, and

because the land exchange must go forward on August 19, 2025 in the absence of vacatur,

Plaintiffs are effectively without a meaningful remedy with respect to their NEPA claims.

(AMRC, Doc. 93 at 50; AMRC, Doc. 94 at 19.)

On the one hand, Defendants are correct that vacatur is not always the remedy in an

APA action—sometimes, it is enough to remand for further consideration without formally

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vacating the agency decision that was found to be flawed. See, e.g., Ctr. for Biological

Diversity v. Bureau of Land Mgmt., 141 F.4th 976, 1015-16 (9th Cir. 2025) (“Having

weighed the equities, vacatur is unwarranted because the procedural error is minor and the

on-the-ground consequences of vacatur would be severe. Still, we expect and urge BLM

to move promptly in rectifying the ROD’s deficiencies on remand. But because we have

been given no reason to believe that the agency would be unable to cure those deficiencies,

we remand without vacating BLM’s 2023 approval of the Project.”) (cleaned up); Cal.

Communities Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012) (“That brings

us to whether we must vacate the EPA’s final rule. A flawed rule need not be vacated.

Indeed, when equity demands, the regulation can be left in place while the agency follows

the necessary procedures to correct its action. . . . Whether agency action should be vacated

depends on how serious the agency’s errors are and the disruptive consequences of an

interim change that may itself be changed.”) (cleaned up).

Infrastructure Coalition, 145 S. Ct. at 1514 (“Even if an EIS falls short in some respects,

that deficiency may not necessarily require a court to vacate the agency’s ultimate approval

of a project, at least absent reason to believe that the agency might disapprove the project

if it added more to the EIS.”).