Hankins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREAT BASIN MINE WATCH, and 

MINERAL POLICY CENTER,

Plaintiffs-Appellants, v. No. 04-16125 HELEN HANKINS, UNITED STATES D.C. No. DEPARTMENT OF THE INTERIOR, and  CV-02-00605-

BUREAU OF LAND MANAGEMENT, HDM/RAM

Defendants-Appellees, OPINION

NEWMONT USA LIMITED,

Defendant-Intervenor- Appellee.  Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding

Argued and Submitted February 14, 2006—San Francisco, California

Filed August 1, 2006

Before: J. Clifford Wallace, Michael Daly Hawkins, and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Wallace; Partial Concurrence and Partial Dissent by Judge Thomas COUNSEL

Roger Flynn, Jeffrey C. Parsons, Western Mining Action Project, Boulder, Colorado; Nicole U. Rinke, Western Mining Action Project, Reno, Nevada, for the plaintiffs-appellants.

Thomas L. Sansonetti, Andrew Mergen, John E. Arbab, Dept. of Justice, Washington, D.C., for the defendants-appellees.

Scott W. Hardt, Temkin Wielga &…

concurring in part and dissenting in part:

I agree with the majority’s holding that the Bureau’s cumulative effects analysis was insufficient under NEPA, and its consequent reversal of the district court’s grant of summary judgment as to that issue. However, I respectfully dissent from the conclusion that Leeville and the Amended South Project are not connected actions requiring a single, comprehensive EIS.

A careful analysis of the record demonstrates that the Bureau should have prepared a single comprehensive EIS for Lee-ville and the Amended South Project. Leeville is dependent on the South Operations Area Project. Because the Amended South Project is merely, in the agency’s words, “an expansion of’ the South Operations Area Project, Leeville and the Amended South Project are necessarily connected actions for NEPA purposes.

Employment of the “independent utility” test does not lead to a different conclusion. The benchmark of “independent utility” is whether “ ‘each of two projects would have taken place with or without the other and thus had independent utility.’ ” Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105 , 1118 (9th Cir.2000). When one of the…

Great Basin Mine Watch and the Mineral Policy Center (collectively, Great Basin) appeal from the district court’s summary-judgment on their claims against the United States Department of the Interior and the Bureau of Land Management (collectively, Bureau). Great Basin alleged that the Bureau’s approval of two gold mining permits to the Newmont Mining Corporation (Newmont) violated, inter alia, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4312 , and the Administrative Procedure Act (APA), 5 U.S.C. §§ 704-706 . Newmont appears as an in-tervenor in this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand.

I.

In March 1997, Newmont submitted a plan proposing expansion of Newmont’s existing open-pit gold mining and ore processing facilities to the Elko Field Office of the Bureau. The proposed expansion was to be located at Newmont’s South Operations Area Project, which was approved in 1993, approximately six miles northwest of Carlin, Nevada. The expansion was to be known as the South Operations Area Project Amendment (Amended South Project) and was estimated to result in a total additional disturbance of 1,392…