author: THOMAS, Chief Circuit Judge:

text:
    John H. DAVIS, Jr., Plaintiff-Appellee, v. COMMONWEALTH ELECTION COMMISSION; Frances M. Sablan, Chairperson of Commonwealth Election Commission; Robert A. Guerrero, Executive Director of Commonwealth Election Commission; Eloy S. Inos, Governor of the Commonwealth of the Northern Mariana Islands, Defendants-Appellants.
    No. 14-16090
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 21, 2016 San Francisco, California.
    Filed December 27, 2016

      Charles Edmond Brasington (argued), Assistant Attorney General, Office of the Attorney General, Saipan, Commonwealth of the Northern Mariana Islands, for Defendants-Appellants.
    Jeanne H. Rayphand (argued), Saipan, Commonwealth of the Northern Mariana Islands, for Plaintiff-Appellee.
    Joseph Horey (argued), O’Connor Ber-man Dotts & Banes, Saipan, Commonwealth- of the Northern Mariana Islands, for Amicus Curiae Northern Marianas Descent Corporation.
    Before: SIDNEY R. THOMAS, Chief Judge, and CONSUELO M. CALLAHAN and MARY H. MURGUIA, Circuit Judges.
   OPINION

THOMAS, Chief Circuit Judge:

The Commonwealth of .the Northern Mariana Islands restricts voting in certain elections to individuals of “Northern Marianas descent.” This appeal presents the question of whether this restriction is race-based and violates the Fifteenth Amendment of the Constitution of the United States. We conclude that it does, and we affirm the judgment of the district court.

I

Under the terms of a Covenant agreement entered in 1975, the Northern Mariana Islands (“CNMI” or “Commonwealth”) was established as a “self-governing commonwealth ... in political union with and under the sovereignty of the United States of America.” Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (“Covenant”) § 101. In ten articles, the Covenant “detail[s] the political relationship between the United States and the CNMI.” N. Mariana Islands v. United States, 399 F.3d 1057, 1059 (9th Cir. 2005). Article I provides that the “Covenant ... together with those provisions of the Constitution, treaties and laws of the United States applicable to the Northern Mariana Islands, will be the supreme law of the Northern Mariana Islands.” Covenant § 102. The Fifteenth Amendment to the Constitution of the United States, which prohibits race-based voting deprivations, is one of those provisions “applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states.” Covenant § 501(a) (listing the Fifteenth Amendment).

The CNMI Constitution establishes eligibility qualifications for voting in the Commonwealth, a right which includes the ability to participate in ratifying proposed constitutional amendments. See Covenant § 201 (“The people of the Northern Mariana Islands will formulate and approve a Constitution and may amend their Constitution pursuant to the procedures provided therein.”); CNMI Const, art. VII, § 1, art. XVHI, § 5. Article VII defines the term voters and Article XVIII governs the amendment process. In general, proposed amendments must be submitted to voters, “for ratification at the next regular general election or. at a special election established by law.” CNMI Const, art. XVIII, § 5(a). In 1999, however, an amendment to Article XVIII, section 5 specifically redefined the term “voters” when the proposed amendment intends to alter Article XII, which governs restrictions on the alienation of land in the Commonwealth. CNMI Const, art. XVIII, § 5(c); see Pub. L. No. 17-40, § 1.

This new text—codified as Article XVIII, section 5(c)—provided:

In the case of a proposed amendment to Article XII of this Constitution, the word “voters” as used in subsection 5(a) above shall be limited' to eligible voters under Article VII who are also persons of Northern Marianas descent as described in Article XII, Section 4, and the term “votes cast” as used in subsection 5(b) shall mean the votes cast by such voters.

Article XII restricts the “acquisition of permanent and long-term interests in real property within the Commonwealth ... to persons of Northern Marianas descent.” As defined in Article XII, section 4, a “person of Northern Marianas descent” (“NMD”) is

a person who is a citizen or national of the United States and who is of at least one-quarter Northern Marianas Cha-morro or Northern Marianas Carolinian blood or a combination thereof or an adopted child of a person of Northern Marianas descent if adopted while under the age of eighteen years. For purposes of determining Northern Marianas descent, a person shall be considered to be a full-blooded Northern Marianas Cha-morro or Northern Marianas Carolinian if that person was born or domiciled in the Northern Mariana Islands by 1950 and was a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship with respect to the Commonwealth.

There is no dispute that Article XVIII, section 5(c) denies otherwise eligible non-NMD voters the right to vote on any constitutional amendment affecting Article XII land alienation restrictions.

To enforce section 5(c), the Commonwealth legislature passed House Bill 17-57, which was signed into law on April 21, 2011. The new Public Law No. 17-40 established a Northern Marianas Descent Registry (“NMDR”) within the Commonwealth Election Commission (“Commission”) and mandated the production of an Official Northern Marianas Descent Identification Card to “be issued only to persons who are qualified pursuant to Article XII, § 4 of the Northern Mariana Islands Constitution.” Pub. L. No. 17-40 § 2. No one could vote in an Article XII election without this identification card. Id. § 2(c)(4).

Plaintiff John Davis is a qualified voter in the Commonwealth under Article VII, section 1, but he does not meet the definition of NMD in Article XII, section 4. Davis brought suit against the Commission, its chairperson and executive director, and the Governor of the Commonwealth seeking declaratory and injunctive relief under the Fourteenth and Fifteenth Amendments. He alleges that 'Article XVIII, section 5(c) and Public Law 17-40 unconstitutionally limit voting on the basis of race. He brought four additional claims: (1) a claim under § 1(a) of the Voting Rights Act, 52 U.S.C. § 10101 et seq., (2) a claim under § 1(a)(2) of the Voting Rights Act, (3) a taxpayer action under the Commonwealth Constitution, and (4) a claim under 42 U.S.C. § 1983 against the senior officers of the Commission.

Davis asked the court to enjoin enforcement of Article XVIII, section 5(c) and its implementing statute so that he could participate in a November 2014 special election to consider a proposed change to the definition of NMD in Article XII. On cross motions for summary judgment, the district court granted Davis declaratory and injunctive relief and required that non-NMDs be permitted to vote in the November 2014 special election. The district court also dismissed the Governor as a party and dismissed Davis’s Voting Rights Act § 1(a)(2) and taxpayer claims.

This timely appeal followed. During its pendency, the Commonwealth sought to enjoin counting the ballots cast in the November 2014 special election. We denied the request pending presentation of the motion to the district court. The district court did not grant the injunction.

The election was held on November 4, 2014. With both NMDs and non-NMDs eligible to vote, a majority of Commonwealth voters ratified Legislative Initiative 18-1. Legislative Initiative 18-1 amended the definition of NMD in Article XII, section 4 by altering the required amount of “Northern Marianas Chamorro or Northern Marianas Carolinian blood” to qualify as an NMD from “one quarter” to “some.” It also removed NMD status from adopted children who would not otherwise qualify as NMDs, and it established a court procedure for people with less than “one quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood” to attain legal NMD status.

We review a district court’s decision on cross motions for summary judgment de novo. Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).

II

Article XVIII, section 5(c) relies on ancestral distinctions to limit voting in a territory-wide election' in the Commonwealth. It therefore’ violates the Fifteenth Amendment of the Constitution of the United States. The restriction is invalid and- may not be enforced. Our analysis is controlled by the Supreme Court’s decision in Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000).

A

The Fifteenth Amendment establishes that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” As noted, there is no doubt that the Fifteenth Amendment applies in the Commonwealth. Covenant § 501(a) (enumerating the Fifteenth Amendment among the Constitutional provisions “applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several states.”); see id. at § 102 (“[T]he Constitution, treaties and laws of the United States applicable to the Northern Mariana Islands, will be the supreme law of the Northern Mariana Islands”).

Under the Fifteenth Amendment, “[a]neestry can be a proxy for race.” Rice, 528 U.S. at 514, 120 S.Ct. 1044. This is because “[a]ncestral tracing ... achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name.” Id. at 517, 120 S.Ct. 1044. Thus, an ancestry-based “electoral restriction [may] enact[ ] a race-based voting qualification” and contravene the Fifteenth Amendment. Id.

Article XVIII, section 5(c) of the CNMI Constitution restricts who is eligible to vote on amendments to the Commonwealth’s land ownership restriction to “persons of Northern Marianas descent as described in Article XII, Section 4.” There is no dispute that this definition of NMD is primarily ancestral. This case requires us to decide whether section 4’s ancestral distinction is a proxy for race.

' We have answered this question previously, in thé context of upholding the constitutionality of section 805 of the Covenant and its implementation in Article XII, section 4. Wabol, 958 F.2d at 1451. There, we observed that the definition of “NMD” in Article XII, section 4 is a “race-based restriction ],” Id. The facts, of this case do not persuade us to abandon our previous view: Article XII, section 4 is a “race-based” definition.

In Rice, the Supreme Court addressed an ancestral voting restriction in elections for the trustees of a state agency that administered programs to benefit native Hawaiians. 528 U.S. at 498-99, 120 S.Ct. 1044. The Hawaii Constitution limited voting for the trustees to “qualified voters who are Hawaiians, as provided by law.” Haw. Const. art. XII, § 5; accord Rice, 528 U.S. at 509, 120 S.Ct. 1044. The statute at issue in Rice defined Hawaiian as “any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii.” Id. at 509, 120 S.Ct. 1044. The same statute also defined “native Hawaiian” as follows:

‘Native Hawaiian’ means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii.

Id. at 510, 120 S.Ct. 1044.

Hawaii defended the statute against a Fifteenth Amendment challenge on the ground that it was.“ancestral,” rather than racial. The Supreme Court rejected'this distinction, noting that “[t]he Fifteenth Amendment was quite sufficient to invalidate a scheme which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise.” Rice, 528 U.S. at 513, 120 S.Ct. 1044 (citing Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915)). “Ancestry can be a proxy for race,” the Court held. Rice, 528 U.S. at 514, 120 S.Ct. 1044. “It is that proxy here.” Id. The voting restriction was invalidated.

Just as the definitions of Hawaiian and native Hawaiian in the Rice statute referred to specific ethnic or aboriginal groups, the definition of NMD in Article XII, section 4, ties voter eligibility to descent from an ethnic group. Id. at 509-10, 120 S.Ct. 1044; Davis v. Commonwealth Election Comm’n, No. 1-14-CV-00002, 2014 WL 2111065, at *15 (D. N. Mar. I. May 20, 2014) (“It was the drafters of the Commonwealth Constitution who chose to tie NMD status to a blood relationship to the two ethnicities”). Similarly, the Hawaii Constitution referenced blood quantum to determine descent, while Article XII, section 4 of the CNMI Constitution refers to “some degree of Northern Marianas Cha-morro or Northern Marianas Carolinian blood” to prove NMD status. The Commonwealth’s definition of NMD does not use the word race, but Public Law 17-40,‘ the implementing statute, does. P.L. 17-40 § 2(c)(5) (requiring public records identifying a voter applicant’s “nationality and race” to determine NMD status). Substituting “peoples” for “race” did not make the ancestral voting restriction in Rice constitutional under the Fifteenth Amendment. See 528 U.S. at 516, 120 S.Ct. 1044. Neither can it here. Article XII, section 4 of the Commonwealth Constitution contains a race-based definition of NMD. By restricting voting on the basis of this definition, Article XVIII, section 5(c) enacts a race-based restriction on voting. Article XVIII, section 5(c) thus violates the Fifteenth Amendment. The district court was correct to enjoin its enforcement.

B

Contrary to the assertions of the Commonwealth, this case cannot be distinguished from Rice.

First, the Commonwealth argues that the definition of a person of Northern Marianas descent is not race-based because it relies on “race-neutral criteria.” To qualify as a “full blooded” NMD under Article XII, section 4, one must: (1) have been “bom or domiciled in the Northern Mariana Islands by 1950”; and (2) have been-“a citizen of the Trust Territory of the Pacific Islands before the termination of the Trusteeship with respect to the Commonwealth.” CNMI Const, art. XII, § 4. While there is historical evidence that some persons who were not of Chamorro or Carolinian ancestry lived on the islands in 1950, Rice forecloses this argument. The Fifteenth Amendment will not tolerate a voter restriction “which singles out ‘identifiable classes of persons ... solely because of their ancestry or ethnic characteristics.’ ” Rice, 528 U.S. at 515, 120 S.Ct. 1044 (quoting St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)). Tethering NMD status to an ancestor’s residence in the islands in 1950 also does not distinguish this case from Rice because the stated intent, of the provision is to make ethnic distinctions. Rice rejected the argument that because classification was “based simply on the date of an ancestor’s residence in Hawaii,” it did not violate the Fifteenth Amendment. Id. at 516, 120 S.Ct. 1044. The Court held that this was “insufficient to prove the classification is nonracial in purpose and operation.” Id. Here, as in Rice, that “argument is undermined by [the restriction’s] express racial purpose and by its actual effects.” Id. at 517, 120 S.Ct. 1044. References to the Chamorro and Carolinian peoples are unambiguous and sit at the heart of the provision. Thus, the date’s inclusion in the NMD definition does not lessen its racial intent or effect or otherwise render it “race-neutral.” Finally, the Commonwealth contends that section 4’s adoption provision renders the definition race-neutral. That adopted children might attain NMD status does not make the core restriction any less about ancestry. An overtly race-based voting restriction would never survive Fifteenth Amendment scrutiny simply by allowing adopted children of eligible voters a means of becoming members of the voting-eligible race. The nature of the restriction remains identical: voters are made eligible by their race affiliation. What would there persist as a racial restriction in this case persists as an ancestral restriction. Thus," notwithstanding the adoption provision, Article XII, section 4 is about ancestry.

Second, the Court in Rice rejected the claim that “Hawaiian” and “native Hawaiian” are political classifications, like membership in a federally recognized American Indian Tribe. The Supreme Court has held that membership in a federally recognized American Indian tribe is a political—not racial—classification. Rice, 528 U.S. at 519-20, 120 S.Ct. 1044 (describing the holding in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). This is because recognized American Indian tribes are “quasi-sovereign” entities with wide latitude to organize their internal affairs. Id. at 520, 120 S.Ct. 1044. The Rice Court held that the people of Hawaiian and Native Hawaiian descent were not a quasi-sovereign group distinct from the whole citizenry of the state and could not restrict voter eligibility in a statewide election only to themselves. Rice, 528 U.S. at 518, 120 S.Ct. 1044. Unlike a tribal election affecting internal affairs of a quasi-sovereign entity, the election in question affected the affairs of the State of Hawaii. The same principles apply with greater force in this case. Elections in which only NMDs may vote affect the affairs of the entire Commonwealth, “not of a separate quasi sovereign.” Id. at 522, 120 S.Ct. 1044. The Commonwealth is subject to the sovereignty of the United States. Covenant § 101; see also N. Mariana Islands, 399 F.3d at 1062. Given that persons of Northern Marianas- descent have not been recognized as having a political identification that is “quasi-sovereign” or otherwise distinct from the Commonwealth citizenry as a whole, cases applying to recognized American Indian tribes do not apply.

Third, Rice also bars the argument that constitutional scrutiny does not obtain because NMDs have a greater or more specialized interest in Article XII’s land alienation restrictions. The Rice Court rejected Hawaii’s defense that the voting restriction “does no more than ensure an alignment of interests between the fiduciaries and beneficiaries of a trust.” 528 U.S. at 523, 120 S.Ct. 1044. That position, the Court held,

rests, in the end, on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters..... Under the Fifteenth Amendment voters are treated not as members of a distinct race but.as members of the whole citizenry.

Id. The voting restriction in Article XVIII, section 5(c) would divide the citizenry of the Commonwealth between NMDs and non-NMDs when voting on amendments to a property restriction that affects everyone. The Fifteenth Amendment' aims to prevent precisely this sort of division in voting.

C

We also reject the remaining arguments for the voter restriction advanced by amici. First, the voter restriction at issue here is not an implementation of section 805 of the Covenant. We upheld the constitutionality of section, 805’s land ownership restriction in Wabol. 958 F.2d at 1459-60 (United States may limit the application of federal law to Covenant section 805 and its implementing provision, Commonwealth Constitution Article XII). Article XII implements section 805, and thus it, too, was constitutional under Wabol. But limits on who may own land are quite different— conceptually, politically, and legally—than limits on who may vote in elections to amend a constitution.

Second, the Insular Cases doctrine, does not apply. The .Insular Cases Held that United States Constitution applies in full to “incorporated” territories, but that “[e]lsewhere, absent congressional extension, only ‘fundamental’ constitutional rights apply in the territory.” Wabol, 958 F.2d at 1459; see generally Boumediene v. Bush, 558 U.S. 723, 756-57, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (discussing Insular Cases doctrine). But the Covenant makes the Fifteenth Amendment fully applicable in the Commonwealth. Covenant § 501. Thus, the application of the Fifteenth Amendment is -not selective or in any way limited by the Commonwealth’s status as an unincorporated territory.

Third, the Commonwealth cannot limit or modify the United States .Constitution by adopting inconsistent provisions in its own constitution. Nor would such a modification be consistent with the relationship between the United States Constitution and the Commonwealth Constitution as set forth in the Covenant.

In sum, our observation in Wabol that Article XII, section 4 makes “race-based” distinctions remains true in the voting context. Because this means that Article XVIII, section 5(c)’s voting restriction relies on race-based distinctions, it violates the Fifteenth Amendment. The district court was correct to grant declaratory and.injunctive relief in Davis’s favor.

Ill

The voter restriction in Article XVIII, section 5(c) is race-based. It therefore violates the Fifteenth Amendment. Because the Fifteenth Amendment' controls, we need not—and do not—reach arguments raised by the parties around the Fourteenth Amendment, the Voting Rights Act, and claims brought under 42 U.S.C. § 1983. We affirm the judgment of the district court.

AFFIRMED.

      . For additional background on the historical relationship between the CNMI and the United States, see N. Mariana Islands v. United States, 399 F.3d 1057, 1059 (9th Cir. 2005); Magana v. Com. of the N. Mariana Islands, 107 F.3d 1436, 1439 (9th Cir. 1997), as amended (May 1, 1997); Wabol v. Villacrusis, 958 F.2d 1450, 1458 (9th Cir. 1990).

      . Generally, a qualified voter is one who, on the date of the election, is eighteen years of age or older, is domiciled in the Commonwealth, is a resident of the Commonwealth and has resided in the Commonwealth for a period-of time provided by law, is not serving a sentence for a felony, has not been found by a court to be of unsound mind, and is either a citizen or national of the United States. CNMI Const, art. VII, § 1;

      . This language implements Covenant section 805, which permits the Commonwealth to limit fee simple land ownership to "persons of Northern Marianas descent.”

      . Davis was not required to use the "statutory vehicle” of 42 U.S.C. § 1983 to bring his Fifteenth Amendment claim seeking declaratory and injunctive relief. Allen v. State Bd. of Elections, 393 U.S. 544, 556 n.21, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) ("Of course the private litigant could always bring suit under the Fifteenth Amendment.”); Terry v. Adams, 345 U.S. 461, 490, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (noting that the Fifteenth Amendment is "self-executing”); see Armstrong v.

        Exceptional Child Center, Inc., — U.S. —, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015) ("The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.”). The Commission was a proper party for Davis's action because it does not enjoy Eleventh Amendment immunity. See 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3524.2 (3d ed. 2008) (noting that subject matter jurisdiction for an Ex Parte Young action obtains when the entity does not enjoy Eleventh Amendment immunity). Because Davis's Fifteenth Amendment claim is dispositive in this case, we do not reach whether he was required to use 42 U.S.C. § 1983 to assert his Fourteenth Amendment claims.

      . We do not reach the Commonwealth’s argument that a lack of discriminatory intent should save the restriction. We analyze discriminatory intent when a restriction is race-neutral on its face; the restriction here is not. See City of Mobile, Ala. v. Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).


source: Caselaw Access Project

author: GRABER, Circuit Judge:

license: Public Domain

text:
    GREAT BASIN RESOURCE WATCH; Western Shoshone Defense Project, Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT; U.S. Department of the Interior; Amy Lueders, BLM State Director; Christopher J. Cook, BLM Mt. Lewis Field Manager, Defendants-Appellees, Eureka Moly, LLC, Intervenor-Defendant-Appellee.
    No. 14-16812
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016 San Francisco, California
    Filed December 28, 2016

      Roger Flynn (argued) and Jeffrey C. Parsons, Western Mining Action Project, Lyons, Colorado; Julie Cavanaugh-Bill, Cavanaugh-Bill Law Offices LLC, Elko, Nevada; for Plaintiffs-Appellants.
    Robert J. Lundman (argued) and Mark R. Haag; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Luke Miller, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees;
    Francis M. Wilkstrom (argued), Salt Lake City, Utah, for Intervenor-Defen-dant-Appellee.
    Before: SUSAN P. GRABER and MARY H. MURGUIA, Circuit Judges, and MARK W. BENNETT, District Judge.

       The Honorable Mark W, Bennett, United States District Judge for the Northern District of Iowa, sitting by designation.

   OPINION

GRABER, Circuit Judge:

Plaintiffs Great Basin Resource Watch and the Western Shoshone Defense Project challenge Defendant Bureau of Land Management’s (“BLM”) approval of the Mt. Hope Project (“Project”), a proposed molybdenum mining operation near Eureka, Nevada. Plaintiffs argue that the BLM’s review of the Project under the National Environmental Policy Act of 1969 (“NEPA”) was inadequate and that the approval of the Project violated the Federal Land Policy and Management Act of 1976 (“FLPMA”) and the laws governing lands withdrawn under the executive order known as Public Water Reserve No. 107 (“PWR 107”). Because we conclude that the BLM’s environmental review of the Project violated NEPA in several ways, we affirm in part the district court’s judgment, reverse in part, vacate in part, and remand for further proceedings.

BACKGROUND

A. The Mt. Hope Project

The Mt. Hope Project “will be located in Eureka County, Nevada approximately 23 miles northwest of the town of Eureka ... and will consist of a proposed molybdenum mine -including a power transmission line, a water well field, and-all, associated facilities to be located on public land administered by the BLM ... and on- private land controlled by [Eureka Moly, LLC, the Project’s operator]. The Project-will utilize an open pit mining method and will process the mined ore using a flotation and roasting process. A total of 8,356 acres of disturbance is proposed within the 22,886-acre Project Area.” Bureau of. Land Mgmt., U.S. Dep’t of Interior, Mount Hope Project Record of Decision, Plan of Operations Approval, and Approval of Issuance of Right-of-Way Grants, p. i (Nov. 2012). Of those 22,886 acres; 22,608 are public lands administered by the BLM. Id. at- 6. “The 80-year project will have an 18- to 24-month construction phase, 44 years of mining and ore processing, 30 years of reclamation, and five years of post-closure monitoring. ... Additionally, long-term post-reclamation obligations will follow final reclamation.” Id. at 1.

The active mining phase of the Project will last 32 years, during which time the mine will produce approximately 1.7 billion tons of waste rock. During that phase, pumps will be used to extract water from the open mining pit; at the end of the active mining phase, the pit will be allowed to fill slowly with ground water, forming a mine-pit lake that is expected to reach a depth of 900 feet. Pumping of ground water will also take place in the Kobeh Valley, which is adjacent to Mt. Hope, to provide fresh water for various mining and ore extraction purposes.

B. Environmental Review of the Project

Eureka Moly filed its first plan of operations for the Project with the BLM in June 2006. The BLM determined that approval of the Project was a “major Federal action” under NEPA, 42 U.S.C. § 4332, and thus required the preparation of an environmental impact statement '(“EIS”). The BLM released a draft EIS (“DEIS”) in December 2011. After receiving nearly 2,000 comments on- the -DEIS, the BLM prepared a final EIS (“FEIS”),-which was released in October 2012.

Throughout the NEPA- review process, Plaintiffs raised concerns about several aspects of the Project. Many of those concerns related to the adequacy of the BLM’s analysis of environmental impacts in the DEIS and FEIS. In comments on the DEIS, Plaintiffs criticized the BLM’s analysis of the Project’s cumulative impacts, impacts to water quantity and quality, and impacts to cultural, religious, and historical resources. Plaintiffs renewed those criticisms in their comments on the FEIS, and they offered fresh criticisms concerning, among other things, the FEIS’ discussion of funding for long-term mitigation and reclamation.

In addition to criticizing the BLM’s analysis of environmental impacts under NEPA,, Plaintiffs expressed their view to the BLM. that approval of the Project would violate the agency’s duties under the FLPMA and PWR 107. In comments on both the DEIS and FEIS, Plaintiffs opined that approval of the Project would violate FLPMA’s requirement that the BLM “prevent unnecessary or undue degradation of the lands” that it administers, 43 U.S.C. § 1732(b). Plaintiffs also pointed out that the Project would affect some springs and water holes located on lands that they claimed had been withdrawn by PWR 107.

Plaintiffs were not alone in criticizing the BLM’s analysis of the Project’s environmental effects. The Environmental Protection Agency (“EPA”) reviewed the FEIS and found that the BLM’s analyses of air impacts, water quantity impacts, and the funding aspects of long-term, mitigation were lacking. Eureka County also criticized several aspects of the BLM’s NEPA review, including the agency’s analysis of air impacts.

C. Approval of the Project

In November 2012, a little more than a month after releasing the FEIS, the BLM issued a record of decision approving the Project. Plaintiffs petitioned for review of that decision with the BLM’s State Director for Nevada, who rejected the petition in January 2013. Plaintiffs then brought this action in the district court under the Administrative Procedure Act, alleging that the BLM’s review of the Project under NEPA was deficient and that its approval of the Project violated FLPMA and PWR 107. Soon after Plaintiffs filed suit, the district court granted Eureka Moly leave to intervene on the side of the BLM.

The district court denied Plaintiffs’ motion for summary judgment and granted the parties’ joint motion for entry of judgment in favor of the BLM. Plaintiffs timely appeal from that judgment.

DISCUSSION

A. NEPA Claim

“A district court’s determination on summary judgment that the BLM complied with NEPA is reviewed de novo.” Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 992 (9th Cir. 2004) (internal quotation marks omitted). “The agency’s actions, findings, and conclusions will be set aside if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (internal quotation marks omitted).

NEPA “is a procedural statute that requires ... Federal agencies to assess the environmental consequences of their actions before those actions are undertaken.” Id. at 993. “For major federal actions significantly affecting the quality of the human environment, the agency is required to prepare an [EIS]. An EIS is a thorough analysis of the potential environmental impacts that provides full and fan-discussion of significant environmental impacts and informs decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” Id. (citations, internal quotation marks, and alterations omitted).

“[I]n reviewing the adequacy of an EIS, this circuit employs a ‘rule of reason’ that asks whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. Under this standard, once satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, the review is at an end.” Or. Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997) (per curiam)' (citations, internal quotation marks, and alterations omitted).

Plaintiffs challenge several aspects of the NEPA analysis. They assert that the BLM’s selection of baseline levels of certain air pollutants was unreasonable and that the BLM’s analysis of cumulative impacts was deficient. As we will explain below, we agree. Plaintiffs also challenge the adequacy of the BLM’s consideration of various mitigation measures. With respect to those arguments, we either are not persuaded or need not reach the issues.

1. Air Pollution Baselines

Plaintiffs first argue that the BLM did not assess adequately the baseline levels of certain air pollutants when conducting the air impacts analysis. Establishing appropriate baseline conditions is critical to any NEPA analysis. “Without establishing the baseline conditions which exist ... before [a project] begins, there is simply no way to determine what effect the [project] will have on the environment and, consequently, no way to comply with NEPA.” Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988). An agency need not conduct measurements of actual baseline conditions in every situation—it may estimate baseline conditions using data from a similar area, computer modeling, or some other reasonable method. See Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 570 (9th Cir. 2016) (holding that it would not necessarily be impermissible for the BLM to estimate baseline conditions in one area by extrapolating from another area). But whatever method the agency uses, its assessment of baseline conditions “must be based on accurate information and defensible reasoning.” Id.

When determining baseline air pollution levels for the Project, the BLM did not use actual measurements from the Project site because none were available. In the DEIS, the BLM used baseline values taken from measurements in Clark'County, Nevada— the county in which Las Vegas is located— for some pollutants, and used the “default values” for unmonitored rural areas suggested by the Nevada Department of Environmental Protection’s (“NDEP”) Bureau of Air Pollution Control for some other pollutants. The DEIS noted that the baseline numbers drawn from the Clark County measurements were “conservatively high” given the relatively urban character of the monitoring locations.

In preparing the FEIS, the BLM instructed Eureka Moly “to follow NDEP’s guidance in selecting the background concentrations for the air quality analysis.” A permitting supervisor from the NDEP’s Bureau of Air Pollution Control had previously advised (by means of a short email) that the agency “assumed” a baseline of zero for all pollutants other than , 10-micron particulate matter, and the FEIS adopts most of those baseline values in place of the “conservatively high” baseline values used in the DEIS. Specifically, the FEIS uses baseline values of zero for carbon monoxide, nitrogen dioxide, one- and three-hour time-averaged sulfur dioxide, and lead, while the DEIS had used measured values from Clark County for those pollutants. The FEIS continues to use the same Clark County data for the two longest time-averaged sulfur dioxide baselines, and it uses measurements taken at Great Basin National Park for 2.5-micron particulate matter baselines.

Plaintiffs first argue that it was' unreasonable for the BLM to use data from Great Basin National Park, a pristine area more than 100 miles away from the Project, to establish baselines for 2.5-mi-cron particulate matter. Although it is true that this choice may have caused the. agency to underestimate the baselines for 2.5-micron particulate matter, the BLM.explained its choice adequately, and its explanation is reasonable. The Project is located in,a rural area,.and the BLM used data from a different rural area, to estimate baseline conditions. Plaintiffs have not shown that this choice rested on inaccurate information or indefensible reasoning. Or. Nat. Desert Ass’n, 840 F.3d at 570.

Plaintiffs’ arguments concerning the baseline = choices for 10-micron particulate matter and the two longest time-averaged sulfur dioxide concentrations are similarly unconvincing. Like the baselines for 2.5-micron particulate matter, the baselines for 10-micron particulate matter relied on measurements taken at Great Basin National Park. The baselines for the two sulfur dioxide concentrations were “conservatively high,” as the BLM noted in the DEIS. By acknowledging the shortcomings in its data while using those data to make an estimate of baseline conditions, the BLM complied with NEPA. See Lands Council v. Powell, 395 F.3d 1019, 1032 (9th Cir. 2005) (noting that “NEPA ... requires up-front disclosures of relevant shortcomings in the data or models”).

Finally, Plaintiffs argue that the BLM’s use of a zero baseline value for the remaining pollutants was unreasonable. The BLM and Eureka Moly respond that the choice of a zero baseline for those pollutants was reasonable because it was “based on recommendations from the [NDEP’s Bureau of Air Pollution Control], the agency with Nevada-specific expertise.” The FEIS similarly invokes the expertise of the NDEP’s Bureau of Air Pollution Control (“BAPC”), prefacing the table of baseline values with the note that “[t]he BAPC was contacted to obtain representative background concentrations for the modeling analysis.” And the air impacts analysis prepared for Eureka Moly and submitted to the BLM—the study that underlies the FEIS’ air impacts analysis—also notes that the “NDEP-BAPC recommends assuming zero background for” the remaining pollutants.

It turns out, though, that the only “expert recommendation” in the record is a short email from an NDEP official—the email is, in fact, cited in the FEIS .as the sole source of the zero baseline value. That email reads, in relevant part, as follows:

In an un-monitored area, BAPC uses 10,2 |xg/m^3 for a 24-hour average background and 9.0 p,g/m^3 for an annual average background for PM10. All other pollutants are assumed to be 0. If there is on-going quality assured monitoring representative of an area, we can rely on that data to set a different background. I’m not aware of any monitoring being performed by BAPC in the area you propose,

(Emphasis added.) Crucially, this email does not explain how or why the NDEP arrived at zero. Such a bare assertion of opinion coming from an expert within the BLM, without any supporting reasoning, would not pass muster in an EIS. See Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998) (“NEPA requires that the public receive the underlying environmental data from which a [reviewing agency] expert derived her opinion.”), overruled on other grounds by Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc); see also Tri-Valley Cares v. U.S. Dep’t of Energy, 671 F.3d 1113, 1124 (9th Cir. 2012) (“At a minimum, an agency must support its conclusions with studies that the agency deems reliable.”). The fact that it comes from an expert at a state agency is of no significance to the analysis. Cf. Nat. Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1412-14 (D.C. Cir. 1985) (“[I]n a rulemaking which must be supported by substantial evidence, [an agency] may not rely without further explanation on an unelaborated order from another agency. Neither we as a reviewing court nor participants in the rulemaking can possibly discover the substantive basis of [the second agency’s] edict.”).

We might reach a different conclusion had the NDEP official explained why an estimate of zero was appropriate, or had the BLM independently scrutinized that estimate and decided that it was reasonable, and then explained why. But none of that happened—the BLM simply used baseline estimates of zero for some pollutants in reliance on one conclusory. sentence in an email from an NDEP official, an email that itself contained no supporting reasoning. This important information, which affects the, air impacts analysis, was essentially immune from meaningful scrutiny by the public because the BLM never provided any data or reasoning in support of it. A baseline estimate “must be based on accurate information and defensible reasoning.” Or. Nat. Desert Ass’n, 840 F.3d at 570. The BLM provided neither when it came to its baseline'estimates of zero.

Eureka Moly argues that the FEIS’ air impacts analysis is nonetheless adequate because it relies in part on the fact that the NDEP’s Bureau of Air Pollution Control issued a Clean Air Act permit for the Project. This argument' evinces a misunderstanding of the nature of NEPA and its relationship to “substantive” environmental laws such as the Clean Air Act. See S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718, 726 (9th Cir. 2009) (per curiam) (holding that a failure to discuss mercury emissions from a nearby mining facility in an EIS was not excused by the fact that the facility “operate[d] pursuant to a state permit under the Clean Air Act,” because “[a] non-NEPA document .,. cannot satisfy a federal agency’s obligations under NEPA”). The failure to explain the zero baseline assumption frustrated the BLM’s ability to take a “hard look” at air impacts, and the reference to the Project’s Clean Air Act permit did nothing to fix that error.

The BLM argues that it corrected any error in its baseline estimates by conducting a “double cheek” analysis following the issuance of the FEIS. The BLM conducted this analysis using measured baseline values from an undeveloped area in New Mexico that EPA had suggested might have similar air quality to the Project area. The BLM claims that those measurements confirm that the pollution from the Project would not violate air quality standards. Although that statement may end up being true, a post-EIS analysis—conducted without any input from the public—cannot cure deficiencies in an EIS. Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1169 (9th Cir. 2003). The public never had an opportunity to comment on the “double check” analysis, frustrating NEPA’s goal of allowing the public the opportunity to “play a role in ... the decisionmaking process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

In conclusion, we hold that the BLM’s analysis of air impacts in the FEIS was inadequate because the agency did not provide any support for its use of baseline values of zero for several air pollutants.

2. Cumulative Impacts

Plaintiffs next argue that the BLM’s analysis of cumulative impacts was deficient. Plaintiffs point out that, although the FEIS mentions that there will be cumulative impacts stemming from the Project and nearby mining, agricultural, and other activities, “there is no detailed discussion about the ... impacts,” nor is there a “quantified assessment” of those impacts.

The cumulative impact from an action means “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. Accordingly, “[i]n a cumulative impact analysis, an agency must take a ‘hard look’ at all actions” that may combine with the action under consideration to affect the environment. Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 603 (9th Cir. 2010) (emphasis added). Furthermore, simply listing all relevant actions is not sufficient. Rather, “some quantified or detailed information is required. Without such information, neither the courts nor the public ... can be assured that the [agency] provided the hard look that it is required to provide.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1379 (9th Cir. 1998).

The BLM completed the first step of the cumulative impacts analysis by identifying the relevant “past, present, and reasonably foreseeable future actions,” 40 C.F.R. § 1508.7, that might affect the environment in the area of the Project. And the BLM provided a “useful analysis of the cumulative impacts” of those actions on some environmental resources. Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 994 (internal quotation marks citation omitted). For instance, the FEIS includes a relatively thorough discussion of cumulative impacts to water quantity, complete with a quantitative analysis.

However, the discussion of cumulative impacts to other resources in the FEIS falls short. In particular, the discussion of cumulative air impacts is insufficient. That discussion reads, in relevant part, as follows:

Each of the identified individual projects within the [study area], including existing and proposed mining operations, emit air pollutants. With the possible exception of motor vehicle emissions, the existing and proposed mining operations are the major sources of criteria pollutants within the [study area]. The modeling for the Proposed Action, as well as the Ruby Hill Mine ..., shows that the levels of these pollutants are below the applicable standards. The Proposed Action would not result in a significant cumulative impact to air resources. The [reasonably foreseeable future actions] would result in additional emissions similar to those currently emitted by the existing operations within the [study area]. In addition, the major sources of pollutants (except for motor vehicle emissions) within the [study area] would operate under permit conditions established by the [NDEP BAPC] and therefore would not be significant.

That analysis suffers from many of the same shortcomings as the BLM’s analysis in Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006). There, we faulted the BLM for failing to include “mine-specific or cumulative data” in its analysis of cumulative impacts to air resources. Id. at 973. The BLM had “merely statfed] that ambient air quality data for the region currently reflects impacts of existing mining operations in the airshed,” but did not “identify and discuss the impacts that will be caused by each succés-sive project, including how the combination of those various impacts is expected to affect the environment.” Id. at 973-74 (internal quotation marks and alterations omitted). For that reason, we held that the FEIS was insufficient. Id. at 972-73. Similarly, the BLM in this case did not provide sufficiently detailed information in its cumulative air impacts analysis. The BLM made no attempt to quantify the cumulative air impacts of the Project together with the Ruby Hill Mine and vehicle emissions. Nor did the BLM attempt to quantify or discuss in any detail the effects of other activities, such as oil and gas development, that are identified elsewhere in the FEIS as potentially affecting air resources.

The cumulative air impacts analysis also suffers from the same problem that plagued the air impacts analysis—namely, the choice of a baseline value of zero for certain pollutants. It was impossible for the BLM to take a “hard look” at cumulative air impacts given its unjustified use of a zero baseline for those pollutants.

The BLM and Eureka Moly argue that the am impacts analysis contained elsewhere in the FEIS suffices because that other analysis takes into account existing emissions. But, as already' discussed, the modeling assumed baseline values of zero for many pollutants and, therefore, the analysis plainly does not take into account emissions from other sources in the area. The BLM and Eureka Moly also argue that the reference in the FEIS to the cumulative air impacts analysis conducted in connection with the Ruby Hill Mine—an unrelated mining project—renders the cumulative air impacts analysis in this FEIS adequate. But the analysis of the Ruby Hill Mine did not consider the Mt. Hope Project, so its cumulative impacts analysis is of very limited relevance.

The cumulative air impacts portion of the FEIS fails to “enumerate the environmental effects of [other] projects” or “consider the interaction of multiple activities.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007). Accordingly, we hold that the cumulative impacts portion of the FEIS does not comply with NEPA.

3. Mitigation: Mine-Pit Lake

Plaintiffs’ next argument concerns the FEIS’ discussion of the lake that will eventually form in the mining pit. Plaintiffs argue that the BLM violated NEPA by failing to consider mitigation measures aimed at reducing the possible adverse environmental effects of poor pit-lake water quality. Under NEPA, “an agency must ... consider appropriate mitigation measures that would reduce the environmental impact of the proposed action.” Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 581 (9th Cir. 2016). When reviewing an agency’s discussion of mitigation measures, “[w]e need only be satisfied that the agency took the requisite ‘hard look’ at the possible mitigating measures.” Okanogan Highlands All. v. Williams, 236 F.3d 468, 473 (9th Cir. 2000).

The FEIS states that “[finitial pit lake water quality is predicted to be good” but that, “[a]s evaporation from the lake surface concentrates the dissolved minerals, some water quality constituent concentrations would be predicted to increase , oyer time relative to baseline concentrations and to exceed the present Nevada water quality standards.” The FEIS further pre-diets that “[t]here would be a low potential for impacts to ground water quality due to the formation of a ground .water sink in the open pit,” but that the impact is “not considered significant.” The FEIS states that “[a]ccess to the open pit by humans and livestock would be restricted” and that “[t]he lake is not intended to be a drinking water source for humans or livestock or to be used for recreational purposes.” Plaintiffs claim that the BLM failed to consider any mitigation measures to address the potential effects of poor pit-lake water quality. They argue that this omission is problematic for two reasons: (1) the FEIS states that there is a “low potential” for impacts to ground water quality, rather than “no potential” for impacts, and (2) the pit-lake water may at some point be needed by “future water users” in the area.

We hold that the BLM complied with NEPA in discussing possible mitigation measures to address the effects that would flow from poor pit-lake water quality. Although the BLM did not include any discussion of possible mitigation measures in the portion of the FEIS discussing pit-lake water quality, other portions of the FEIS contain discussions of such measures. The listing of “applicant committed practices”—measures that Eureka Moly has promised to take and that are “considered part of the operating procedures” of the Project—states that the company will “periodically review and update ... pit lake studies to incorporate new information accumulated during operations_ These updates would ... provide quantitative predictions of water quality during the operational and post-closure period.” Additionally, the agency responded to a comment on the DEIS by noting that it would rely on future monitoring “to further understand the ground water and surface water hydraulics and any potential impacts to waters of the State. Based on further monitoring and evaluation, additional mitigation measures ... can be implemented at any time....”

This sort of “wait and see” approach to mitigation does not always suffice under NEPA, Putting off an analysis of possible mitigation measures until after a project has been approved, and after adverse environmental impacts have started to occur, runs codnter to NEPA’s goal of ensuring informed agency decisionmaking. See Robertson, 490 U.S. at 353, 109 S.Ct. 1835 (“Without [a reasonably complete] discussion [of mitigation], neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.”). But that approach was reasonable in the circumstances given the relatively low probability and temporal remoteness of adverse impacts to ground water. And though the BLM did not consider any mitigation measures for the potential impact of poor pit-lake water quality on “future water users,” it was not required to do so, because the existence of any such users is speculative. See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 449 F.3d 1016, 1030 (9th Cir. 2006) (“[A]n impact statement need not discuss remote and highly speculative consequences.”) (internal quotation marks Omitted).

To be sure, the BLM’s mitigation analysis in this case was not as thorough as that of the agency in Okanogan Highlands. In that case, the Forest Service prepared an EIS for a mining project that would produce a mine-pit lake much like the one here. Okanogan Highlands, 236 F.3d at 471. The agency concluded in the EIS that “seepage from the open pit is expected to have a low overall impact on ground water quality in the vicinity of the pit,” but it nonetheless discussed several mitigation measures, including monitoring. Id. at 474-75. We held that the agency had complied with NEPA by "Considering “extensively the potential effects and mitigation processes.” Id. at 477.

In this case, by contrast, the BLM discussed only monitoring. But the disparity in the scope and depth of the agencies’ discussions in the two cases reflects important differences between the projects being analyzed, rather than a difference in the adequacy of the agencies’ analyses. The mining project in Okanogan Highlands was set to last eight to ten years, id. at 471, and -the pit lake was expected to overflow and discharge water that would exceed pollution standards, id, at 474. Here, by contrast, the pit lake will fill slowly, and will not begin to fill at all until after the end of open pit mining, some 32 years after the start of the Project. Furthermore, the water quality in the pit lake is expected to be good at first. Faced with an adverse impact that is predicted to be insignificant and that will not occur for decades, the BLM in this case reasonably decided to rely on a monitoring scheme to develop future mitigation measures.

In short, we are satisfied that the BLM complied with NEPA by taking a “hard look” at the potential impacts of poor pit-lake water quality on ground water.

4. Mitigation: Reclamation Bonding

'Plaintiffs argue that the BLM’s NEPA review was deficient because the agency “never reviewed the consideration or establishment of [financial guarantees] under NEPA.” Plaintiffs argue that this failure rendered the discussion of mitigation in the FEIS inadequate and prevented the public from providing input into the recla.mation bonding process. The BLM and Eureka Moly respond that (1) NEPA does not require that “third parties' should be able to participate in the process of determining financial guarantees,” and (2) in any event, the FEIS contains an adequate discussion of financial guarantees.

The BLM’s regulations require that an operator who files a plan of operations must, “[a]t a time specified by BLM, ... submit an estimate of the cost to fully reclaim [its] operations.” 43 C.F.R. § 3809.401(d). Although the “time specified by BLM” need not be the same as the time at which the plan of operations is filed, the estimate must be submitted and accepted before operations can begin, because “a financial guarantee that meets the requirements of this subpart [must be provided] before starting operations.” Id. § 3809.500. The regulations instruct operators to “estimate the cost to reclaim your operations as if BLM were hiring a third-party contractor to perform reclamation of your operations after you have vacated the project area.” Id. § 3809.554(a). The financial guarantee provided by the operator . must cover this estimated cost. Id. § 3809.552(a). In addition, the BLM may require “a trust fund or other funding mechanism ... to ensure the continuation of long-term treatment to achieve water quality standards and for other long term, post-mining maintenance requirements. The funding must be adequate to provide for construction, long-term operation, maintenance, or replacement of any treatment facilities and infrastructure, for as long as the treatment and facilities are needed after mine closure. BLM may identify the need for a trust fund or other funding mechanism during plan review or later.” Id. § 3809.552(c).

The BLM and Eureka Moly assert that the details of a long-term funding mechar nism and the amount of a financial guarantee (also called a “reclamation bond”) need not be discussed in an EIS because they are “regulatory requirement[s] ... driven by the NEPA-reviewed reclamation plan.” For support, they cite the BLM Surface Management Manual, which states that “[a]ny decision concerning the need, amount, acceptability, and/or forfeiture of a financial guarantee ... do[es] not require an environmental review under NEPA and [is] not to be included in NEPA documents used to review a proposed operation.” BLM Surface Management Manual at 2-6 (2012). They.also cite our decision in Center, for Biological Diversity v. Salazar, 706 F.3d 1085,1096 (9th Cir. 2013), for the proposition that setting an amount for a financial guarantee does not trigger NEPA requirements.

Salazar does not support the position taken by the BLM and Eureka Moly. In Salazar, we held that the BLM’s approval of an update to an operator’s financial guarantee was not a “major Federal action” for NEPA purposes where the reclamation plan being funded by the guarantee had already been approved and was not itself being changed. Id. at 1096-96. We characterized the BLM’s action as consisting of “the ministerial tasks of feeding reclamation data from the [reclamation] plan into [a] software program, comparing [the] estimate [from that program] with that of [the operator], and then accepting [the operator’s] proposed bond amount, which was greater than” the estimate. Id. at 1096. We held that “[s]uch post-project-approval functions are the type of monitoring and compliance activities that ... do not trigger NEPA’s requirements.” Id.

For two reasons, this case differs from Salazar. First, the reclamation plan here is in the process of being approved, and determining the contours of the financial guarantee (particularly the long-term funding mechanism) at this stage is not a mere “ministerial task.” Second, Plaintiffs’ legal theory for why NEPA requires a discussion of reclamation funding differs from that advanced by the plaintiffs in Salazar. In Salazar, the plaintiffs argued that the update to the reclamation bond was a “major Federal action” requiring the preparation of an EIS. Id. at 1095. By contrast, Plaintiffs’ argument is that the approval of a plan of operations requires an EIS; the EIS should discuss possible reclamation and post-closure mitigation measures; and a reasonably complete discussion of those measures requires some discussion of the long-term funding mechanism and reclamation bond.

We need not address any further the broad argument that reclamation bonding need never be discussed in NEPA documents. We assume, without deciding, that long-term mitigation and reclamation funding issues must be “discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.” Robertson, 490 U.S. at 362, 109 S.Ct. 1835. Making that assumption, we hold that the FEIS contains an adequate discussion of those issues.

The FEIS discusses several specific long-term mitigation measures that the long-term funding mechanism may fund. It also states that the funding mechanism “would be reviewed annually during the operation phase of the Project and potentially increased to meet the monitoring and mitigation needs associated with the Project.” Elsewhere, the FEIS discusses some of the long-term mitigation measures in more detail, For instance, the FEIS considers, in several places, the use of evapo-transpiration cells to control long-term discharge from mining waste.

The FEIS also contains a relatively thorough, discussion of possible reclamation measures, complete with a proposed timeline. As for the reclamation bond, the FEIS states that, “[w]ithin three years following Plan approval and at least every three subsequent years, [Eureka Moly] would update the guarantee to reflect the actual disturbance and whatever additional disturbance is planned for the Project phase anticipated over the next three-year period. Changes to equipment, consumables, and man power costs would also be incorporated during the updates.”

The BLM’s discussion of long-term mitigation and’ reclamation in the FEIS is “reasonably complete” and does not violate NEPA. Although the BLM could have discussed its options vis-á-vis the long-term funding mechanism and reclamation bond in more detail, its discussion of those aspects of the long-term mitigation and reclamation plans is not so deficient as to preclude the agency or the public from “properly evaluating] the severity of [the Project’s] adverse effects” on the environment. Robertson, 490 U.S. at 352, 109 S.Ct. 1885. And the reclamation and long-term mitigation discussion, taken as a whole, contains an adequate evaluation of the effectiveness of possible reclamation and long-term mitigation measures despite the relatively sparse treatment of the funding aspects of those measures. See S. Fork Band Council, 588 F.3d at 727 (“An essential component of a reasonably complete mitigation discussion is an assessment of whether the proposed mitigation measures can be effective.”).

5. Mitigation: Surface and Ground Water Quantity

Plaintiffs next challenge the adequacy of the BLM’s discussion of mitigation measures to address impacts to surface and ground water quantity. The Project will require a great deal of water to support mining and milling operations. This water will come from two sources: ground water pumped out of wells located in one of the valleys surrounding Mt. Hope and water pumped from the open mining pit. The predicted effects of the pumping on certain stream and spring flows—unlike the predicted effect of the pit lake on groundwater quality—are "potentially significant.”

The FEIS discusses several mitigation measures aimed at addressing those impacts, including a monitoring scheme to keep track of the status of spring and-stream segments, water hauling, and piping in water from other locations to replace lost surface water. In non-technical—but accurate—terms, many of the mitigation measures amount to measuring how much each spring or stream segment’s flow has been reduced and replacing that water. The replacement water— which the BLM estimates , at about 302 acre-feet of water, or nearly 100 million gallons, per year—“would at least initially come from [Eureka Molyj’s existing water rights if additional water rights have not yet been secured.”

Plaintiffs contend that the discussion of mitigation measures is inadequate because “there is no analysis of where th[e] [replacement] water will' come from, or the impacts from its withdrawal.” Plaintiffs note that EPA criticized the BLM for this omission during'the NEPÁ process and asked the BLM to prepare a supplemental EIS. Eureka Moly responds that “the FEIS thoroughly analyzed the effect of using water from [its] production wells, [so] the effect of using some of it as substitute water was necessarily analyzed because it is the same water.”

Although Eureka Moly’s argument is factually incorrect—the analysis of ground water pumping in the FEIS does not take into account the roughly 200 gallons per minute needed to replace depleted spring and stream water—that error appears to be quite small, raising questions about whether it might be harmless. See Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095, 1104 (9th Cir. 2016) (“The harmless-error analysis asks whether the [agency’s error] materially impeded NEPA’s goals— that is, whether the error caused the agency not to be fully aware of the environmental consequences of the proposed action, thereby precluding informed decisionmak-ing and public participation, or otherwise materially affected the substance of the agency’s decision.”). But no party has briefed the issue of harmlessness. And because the BLM’s NEPA analysis is deficient in other respects, the ultimate disposition of this appeal does not depend on the resolution of this portion of Plaintiffs’ NEPA claim. Accordingly, we decline to reach this portion of Plaintiffs’ NEPA claim.

B. PWR 107 Claim

Plaintiffs’ other major claim is that the BLM violated its duty to protect lands “withdrawn from settlement, location, sale or entry” under the executive order known as PWR 107, Public Water Reserve No. 107 (Apr. 17, 1926). Plaintiffs also argue that PWR 107, which'withdrew lands surrounding certain springs and water holes, created an implied reservation of water rights to the federal government in some springs in the area of the Project, and that the Project will unlawfully interfere with those water rights.

We decline to address Plaintiffs’ PWR 107 claim, for' two reasons. First, the BLM should be given an opportunity to fix the errors in its analysis of the Project under NEPA before challenges to the approval of the Project itself are entertained. “Having addressed the problems [with the EIS], the BLM may decide to make different choices. NEPA is not a paper exercise, and new analyses may point in new directions .... The problems [with the approval of the Project itself] may never arise once the BLM has had a chance to see the choices before it with fresh eyes,” Or. Nat. Desert Ass’n v. BLM, 625 F.3d 1092, 1124 (9th Cir. 2010).

Second, the proper analysis of the PWR 107 claim turns in large part on whether four springs in the area of the Project are “covered” by PWR 107—that is, whether those four springs are located on lands that were withdrawn by PWR 107— but the BLM’s position on that question is unclear. Prudence counsels in favor of remanding to the agency to clarify its position, rather than addressing legal questions that may end up being irrelevant to the disposition of the claim. Cf. Su Hwa She v. Holder, 629 F.3d 958, 963-64 (9th Cir. 2010) (“[W]e lack the clairvoyance necessary to confidently infer the reasoning behind the [agency]’s conclusion. Rather than countenance a decision that leaves us to speculate. based on an incomplete analysis, we remand the case to the [agency] for clarification.” (footnote omitted)).

AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED with instructions to vacate the record of decision and remand to the BLM. The parties shall bear their own costs on appeal.

      . Eureka Moly contracted with an air quality consulting firm, Air Sciences, Inc., to conduct the air impacts analysis. That analysis, in turn, was submitted to the BLM, which relied on it when preparing the FEIS.

      . The FEIS cites a different NDEP official as the source of the baseline válues for 2.5-mi-cron particulate matter concentrations.

      ., What value to use- as a baseline concentration for a particular air pollutant, in the absence of data, ,is a question of expert judgment, not one of fact. There is no doubt that the baseline pollutant levels are not, as a factual matter, zero; the question is what to use as an estimate of baseline levels for purposes of modeling. In fact, the email to the NDEP official asked for "some guidance on what background concentration values ... to use for a modeling analysis in [the] Mount Hope area.” (Emphasis added.)

      . Counsel for the BLM conceded during oral argument that if we were to conclude that the assumption of a zero baseline for several air pollutants rendered the air impacts analysis deficient, we would necessarily have to conclude that the cumulative air impacts analysis suffered from the same deficiency.

      . The comments on the DEIS and the BLM’s responses thereto are included as appendices to the FEIS.

      . Reclamation means taking measures ... following disturbance of public lands caused by operations to meet applicable performance standards and achieve conditions required by BLM at ■ the ■ conclusion of operations-Components, of reclamation include, where applicable:
      (1) Isolation, control, or removal of acid-forming, toxic, or deleterious substances;
      (2) Regrading and reshaping to conform with adjacent landforms, facilitate revegetation, control drainage, and minimize erosion;
      (3) Rehabilitation of fisheries or wildlife habitat;
      (4) Placement of growth medium and establishment of self-sustaining revegetation;
      (5) Removal or stabilization, of buildings, structures, or other support facilities;
      (6) Plugging of drill holes and closure of underground workings; and
      (7) Providing for post-mining monitoring, maintenance, or treatment.
      43 C.F.R. § 3809,5.

      . The requirements of 43 C.F.R. § 3809.552 and 3809.554 apply to operators, like Eureka Moly, that plan to use an individual financial guarantee, rather than a "blanket” guarantee covering multiple operations, § 3809.560, or a pre-existing state-approved guarantee, § 3809.570.

      . Plaintiffs also appear to argue that the discussion of mitigation measures is deficient because it puts off the development of a mitigation plan until after monitoring reveals depletion, This argument is factually incorrect— the FEIS includes a map showing the future location of pipelines that could be used to bring water to depleted springs,

      . The analysis in the FEIS assumes a ground water pumping rate of between 6,540 and 7,000 gallons per minute, so failing to include the additional 200 gallons per minute needed to replace spring and stream flows amounts to a roughly 3% error.

      . For this reason, we also decline to address Great Basin’s FLPMA claim.

      . The springs at issue are McBride's Spring, also referred to as SP-1 or Spring 612; Mt. Hope Spring, also referred to as SP-4 or Spring 619; Garden Spring, also referred to as SP-2 or Spring 597; and Lone Mountain Spring, also referred to as Spring 742.

      . The FEIS is internally contradictory, suggesting in some places that the four springs are covered by PWR 107 and in other places that they are not. We note that the BLM had previously submitted "Notification of Public Water Reserve” forms for the four springs to the State of Nevada. Each of those forms lists an amount of water that the United States wishes to claim as a federal reserved water right and cites PWR 107 as authority for the reservation. The notifications have never been rescinded. If, on remand, the BLM decides that the springs are not important, it should at the very least explain why it has apparently changed its position. Cf. Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S.Ct. 2117, 2126, 195 L.Ed.2d 382 (2016) ("[A]n ‘unexplained inconsistency' in agency policy is 'a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.' ” (brackets omitted) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005))).


author: TROTT, Senior Circuit Judge:

text:
    Preslie HARDWICK, Plaintiff-Appellee, v. COUNTY OF ORANGE, Defendant, and Marcia Vreeken; Elaine Wilkins; The Estate of Helen Dwojak, Defendants-Appellants.
    No. 15-55568
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 7, 2016 Pasadena, California
    Filed January 3, 2017

      Pancy Lin (argued) and Norman J. Watkins, Lynberg & Watkins, Orange, California, for Defendants-Appellants.
    Dennis Ingols (argued) and Robert R. Powell, Law Offices of Robert R. Powell, San Jose, California, for Plaintiff-Appellee.
    Before: STEPHEN S. TROTT, JOHN B. OWENp, and MICHELLE T. FRIEDLAND, Circuit Judges.
   OPINION

TROTT, Senior Circuit Judge:

I

Exposition

Pursuant to an order of the Superior Court of Orange County California, arising from acrimonious juvenile dependency proceedings, Deanna Fogarty-Hardwick lost custody of her minor children, Preslie and Kendall. In this subsequent civil rights action brought' under 42 U.S.C. § 1983, Preslie' Hardwick sued the County and employees of its Social Services Agency (“SSA”). She contends that the social worker employees acting under color of state' law maliciously used perjured testimony and fabricated evidence to secure her removal from her mother, and that this abuse of state power violated her Fourth and Fourteenth Amendment constitutional rights to her familial relationship with her mother.

In a motion for summary judgment, the individual defendants unsuccessfully raised absolute and qualified immunity as shields against this action. They appeal, claiming, among other things, that the law Preslie accuses them of violating was not “clearly established” at the time their allegedly wrongful conduct occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

We have jurisdiction over this timely interlocutory appeal pursuant to 28 U.S.C. § 1291, Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (absolute immunity), and Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity). We affirm.

II

Background

This lawsuit is not the first stemming from the implosion of Preslie’s family. Her mother, Deanna, successfully sued some of the social workers in state court for the same conduct and pursuant to the same legal theory, and she recovered a sizable sum in damages plus attorneys’ fees. See Fogarty-Harwick v. County of Orange, No. G039045, 2010 WL 2354383, at *1 (Cal. Ct. App. June 14,2010) (remanding to trial court with directions to strike injunctive relief from the judgment and affirming judgment in all other respects). To quote the California Court of Appeal,

In this case, the jury specifically concluded that. Vreeken and Dwojak lied, falsified evidence and suppressed exculpatory evidence—all of which was material to the dependency court’s decision to deprive Fogarty-Hardwick ,of custody— and that they did so with malice. These findings are clearly sufficient to satisfy the Supreme Court’s definition of circumstances in which ‘qualified immunity would not be available.’ •

Id. at *14.

The Court of Appeal also acknowledged the defendants’ collective admission on appeal that the evidence .was sufficient “to demonstrate the social workers committed egregious acts of misconduct in the dependency case.” Id. at *10. The court said, “As the County concedes, ‘[Fogarty-Hardwick] demonstrated (if the testimony is to be believed) that in this one instance, social workers lied and fabricated evidence in connection with the dependency proceedings relating to [her] children.’ ” Id. at *10, n.4 (alteration in original).

HI

Scope and Standard of Review

This matter comes to us as an interlocutory appeal involving only legal issues regarding the employees’ claims of an entitlement to immunity from this lawsuit. We do not comment on or express any opinions about the merits of the case. Those are ultimately for the district court to resolve. In this context,' however, and because they are supported by the record as a whole, we construe the facts Preslie offers in support of her allegations in the light most favorable to her. Scott v. Harris, 550 U.S. 372, 380 n.8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Accordingly, we proceed to review de novo the legal issues that are before us. White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007) (grant of partial summary judgment reviewed de novo),

IV

Absolute Immunity

Absolute immunity from private lawsuits covers the official activities of social workers only when they perform quasi-prosecutorial or quasi-judicial functions in juvenile dependency court. Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003) (en banc). The factor that determines whether absolute immunity covers a social worker’s activity or “function” under scrutiny is whether it was investigative or administrative, on one hand, or part and parcel of presenting the state’s case as a generic advocate on the other. Absolute immunity is available only if the function falls into the latter category. See id. at 896. Here, Preslie tells us that the social workers’ malicious activities about which she complains are as follows:

1) The allegedly false statements and omissions made in defendants’ court re-ports continuously submitted by them from February 17, 2000, through the termination of the dependency proceedings;

2) The statements made by the defendant social workers during an “off the record” discussion on February 17, 2000, and during an “on the record” discussion that same day where the social workers allegedly lied (but not while under oath) to the commissioner overseeing the dependency proceeding, triggering Preslie’s seizure;

3) The alleged fabrication of evidence throughout the dependency proceedings and repeated suppression of exculpatory evidence in defendants’ written court reports; and

4) Defendants’ corrupt recommendations that Preslie continue to be detained even though defendants allegedly knew they were lying to the court about the basis for the initial seizure and subsequent detention.

To be specific, the defendants’ actions Preslie intends to prove as false and fabricated include (1) telling the dependency court on February 17, 2000, that Deanna had caused her daughters to skip a mandatory visit with their father, when in fact the problem was caused by a visitation monitor, Hector Delgadillo; (2) advising the court that Deanna was responsible for turning her children against the monitor; and (3) telling the court that Deanna had told her children that their father was trying to take them away from her when in •reality it was defendant Vreeken who had made inappropriate comments to the children, including the threat that if they did not visit their father, they would be put “in ahorne.”

On the basis of this alleged misinformation, the dependency court concluded that Deanna was “using” her children. Accordingly, the court immediately removed the girls from her custody and turned them over to the SSA and the defendants. Pres-lie and her sister were sent to the Orange-wood Children’s Home. On February 23, 2000, the court authorized the return of the girls to their mother’s custody, but the social workers refused and placed them instead in foster care where they remained until May 2000.

Preslie’s complaint targets conduct well outside of the social workers’ legitimate role as quasi-prosecutorial advocates in presenting the case. Our opinion in Beltran v. Santa Clara County, 514 F.3d 906 (9th Cir. 2008) (en banc) (per curiam) disposes of this issue. We held in Beltran that social workers may well have absolute immunity when discharging functions that are “ ‘critical to the judicial process itself,’ ... [b]ut they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren’t similar to discretionary decisions about whether to prosecute.” 514 F.3d at 908 (quoting Miller, 335 F.3d at 896). Accordingly, we affirm the district court’s denial to these defendants of absolute immunity.

y

Qualified Immunity

A.

Collateral Estoppel

Preslie claims collateral estoppel, or issue preclusion, against these defendants on the ground that qualified immunity wás conclusively litigated to a final decision in California courts, in which they did not prevail. However, because we come to the same conclusion as the state courts, we need not decide whether offensive collateral estoppel bars these defendants from raising qualified immunity in their defense. See Jordan v. City of Lake Oswego, 734 F.2d 1374, 1377 (9th Cir. 1984); Rayner v. NLRB, 665 F.2d 970, 976 n.7 (9th Cir. 1982).

B.

Preslie’s Constitutional Rights

“Parents and children have a well-elaborated constitutional right to live together without governmental interference. That right is an essential liberty interest protected by the Fourteenth Amendment’s guarantee that parents and childi-en will not be separated by the state without due process of law-except in an emergency.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (citations omitted).

Over the years, the Supreme Court has recognized this fundamental right in many cases. For example, in Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639—40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the Court said, “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” The Court reiterated this theme three years later in Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977): “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.”

The defendants do not contend— nor could they—that Preslie did not have a constitutional Due Process right or a Fourth Amendment right protecting.-her against deliberate government use of perjured testimony and fabricated evidence in the dependency court proceeding designed to rupture her familial relationship with her mother. This right is beyond debate. What they do claim is that the specific granular right to be free from deliberately fabricated evidence in. civil child dependency proceedings where a parent’s or child’s protected familial liberty interest is at stake had not yet been “clearly established” prior to the dependency proceeding at issue. They concede that the rights Preslie relies upon had been clearly established in criminal proceedings against parents, but not yet in a civil proceeding context. We disagree.

C.

“Clearly Established”

An official “cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in [his or her] shoes would have understood that he [or she] was violating it.” Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments by protecting] all but the plainly incompetent or those who knowingly violate the law.” City and County of San Francisco v. Sheehan, — U.S. —, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law, the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation marks omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning, and in [some] instances a general constitutional rule already identified in the deci-sional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’ ” Id. at 741, 122 S.Ct. 2508 (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034)). Thus, the “salient question” we must answer is “whether the state of the law [as of February, 2000, when the conduct at issue allegedly occurred] gave [these social workers] fair warning” that their alleged use of perjured testimony and fabricated evidence in court in order to sever Preslie’s familial bond with her mother was unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.

The Supreme Court did not confine its inquiry in Hope to published judicial opinions. The Court also referred to the “obvious cruelty” inherent. in the disputed practice that “should have provided respondents with some notice that their alleged conduct violated [the plaintiffs constitutional protection].” Hope, 536 U.S. at 745, 122 S.Ct. 2508.

To buttress its conclusion that a reasonable person would have known of the unconstitutionality of the disputed practice, the Court also relied on (1) a “relevant” shackling regulation promulgated by the Alabama Department of Corrections (“ADOC”), and (2) a United States Department of Justice report warning the ADOC of the unconstitutionality of the disputed practice. Id. at 743-45, 122 S.Ct. 2508.

D.

Development

Although it did so in the context of discussing collateral estoppel, the district court correctly identified the legal precedents that inform our analysis, beginning with Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009), vacated in part on other grounds by Camreta v. Greene, 563 U.S. 692, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011). As the district court said,

the plaintiff [in Greene] alleged her children were removed from her custody ‘pursuant to a Juvenile Court order triggered by an intentional misrepresentation’ in an affidavit by the defendant social worker. The Ninth Circuit held that the plaintiffs ‘right to be free from deception in the presentation of evidence during a protective custody proceeding was clearly established at the time [defendant] filed his affidavit [in 2003] with the Juvenile Court,’

And, as the district court correctly observed, ‘'Greene reached this conclusion on the basis of previous case law establishing the basic ‘constitutional right to be free from the knowing presentation of false or perjured evidence.’” Id. (quoting Greene, 588 F.3d at 1035).

Nevertheless, the defendants contend that Greene is irrelevant because (1) the offending affidavit in that case was filed in March of 2003, and (2) we did not publish our opinion until 2009. True, but Greene relied in turn on cases dealing with conduct that occurred well before the conduct challenged in this case. For example, the Greene panel pointed to Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000), reh’g en banc sub nom. Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001). The targeted conduct in Devereaux took place during 1994 and 1995. In Greene, we said that “we held in the context of a child abuse proceeding that ‘the constitutional right to be free from the knowing presentation of false or perjured evidence’ is clearly established.” 588 F.3d at 1035 (citing and quoting Devereaux, 218 F.3d at 1055-56). We also said that “[e]ven earlier [than Dever-eaux] we stated emphatically that ‘if an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth, .., he cannot be said to have acted in an objectively reasonable manner, and the shield of qualified immunity is lost.’ ” Id. (describing and quoting Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995)). Finally, we supported our holding in Greene with a section 1983 case decided in 1990 by the Tenth Circuit, Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990). We described that civil rights case as “holding [that] social workers who deliberately fabricated evidence of child sexual abuse to secure a removal order [were] not entitled to qualified immunity.” Greene, 588 F.3d at 1035.

Contrary to the defendants’ assertion at oral argument that Snell arose from criminal process, it did not. The alleged offending social workers in Snell were employed by the Oklahoma Department of Human Services. The disputed court order they secured from a judge was a “pick-up” removal order pertaining only to civil child dependency concerns. Snell, 920 F.2d at 687-88. The child removal order had no connection with a criminal investigation or prosecution. In fact, the district attorney, the local police, and the FBI all declined to initiate criminal process or proceedings. Id. at 677, 681-83, 691.

No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law. The social workers in this case are alleged to have knowingly and maliciously violated the law in their attempt to sever Preslie’s protected relationship with her mother. Perjury is a crime under both federal and California state law, as is the knowing submission of false evidence to a court. 18 U.S.C. § 1621; Cal. Penal Code § 118. Both crimes make no distinction between criminal and civil proceedings. This malicious criminal behavior is hardly conduct for which qualified immunity is either justified or appropriate. The doctrine exists to protect mistaken but reasonable decisions, not purposeful criminal conduct. As the Supreme Court repeated in Sheehan, officials who knowingly violate the law are not entitled to immunity. 135 S.Ct. at 1774 (quoting Ashcroft, 131 S.Ct. at 2085).

When asked about these legal facts during oral argument, the following colloquy occurred:

Judge Trott: Are you telling me that a person in your client’s shoes could not understand you cannot commit perjury in a court proceeding in order to take somebody’s children away?
Answer: Of course not.
Judge Owens: Was there anything you know of that told social workers that they should lie and they should create false evidence in a court proceeding?
Answer: No....

In Fourth Amendment excessive force cases, often the disputed force used turns out under examination not to have been excessive. In Eighth Amendment cruel and unusual punishment cases, the same is true. A punishment imposed may not be either cruel or unusual. But there is no such thing as a minor amount of actionable perjury or of false evidence that is somehow permissible. Why? Because government perjury and the knowing use of false evidence are absolutely and obviously irreconcilable with the Fourteenth Amendment’s guarantee of Due Process in our courts. Furthermore, the social workers’ alleged transgressions were not made under pressing circumstances requiring prompt action, or those providing ambiguous or conflicting guidance. There are no circumstances in a dependency proceeding that would permit government officials to bear false witness against a parent.

But there is more to establish that these social workers had “fair warning” of the unconstitutioriality of their conduct. The California Government Code has addressed the very acts alleged in this case with a statute enacted in 1995. The Code says,

(a) [T]he civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings pursuant to [the Cal. Welfare and Insts. Code] shall not extend to any of the following, if committed with malice: (1) Perjury. (2) Fabrication of evidence. (3) Failure to disclose known exculpatory evidence, (4) Obtaining testimony by duress ... fraud ... or undue influence....
(b) ‘[M]alice’ means conduct that is intended ... to cause injury to the plaintiff or despicable conduct that is carried on ... with a willful and conscious disregard of the rights or safety of others.

Cal. Gov’t Code § 820.21.

Section 820.21 did not come about because of someone’s academic concern about possible wrongful conduct by social workers in connection with dependency proceedings. The Bill, Assemb. B. 1355, 1995-96 Reg. Sess. (Cal. 1995) (“AB 1355”) was the direct result of a notorious case, James W. v. Super. Ct., 17 Cal.App.4th 246, 21 Cal.Rptr.2d 169 (1993), wherein the trial court granted absolute immunity for egregious acts resulting in the removal of a child from her family. Although the trial court was reversed on appeal, the issue generated statewide concern. AB 1355 was hotly debated and opposed by the County Welfare Directors, the. National Association of Social Workers, the California State Association of Counties, the California Independent Public Employees Legislative Council, Inc., and the California State Council of the Service Employees International Union. See Cal. B. Analysis, 1995-96 Reg. Sess., Assemb. B. 1355 (Sept. 8, 1995). We find it utterly implausible that social workers in California were not aware in 1999 of this recent change in the law.

Just as the Court in Hope used an ADOC regulation and a DOJ report to support its conclusion that the officials were on fair notice of the wrongfulness of their conduct, here, a pertinent state statute warns defendants in unmistakable language of the personal consequences of lies, perjury, and deception: the loss of immunity for such conduct. Furthermore, the statute focuses on behavior designed wrongfully to affect dependency proceedings in court, the citadel of Due Process.

We believe this is the kind of case the Supreme Court had in mind in Hope when it talked about conduct so clearly and obviously wrong that the conduct itself unmistakably “should have provided [defendants] with some notice” that their alleged conduct violated their targets’ constitutional rights. 536 U.S. at 745, 122 S.Ct. 2508. As the Supreme Court explained in Lanier, 520 U.S. at 271, 117 S.Ct. 1219,

As Judge Daughtrey noted in her dissenting opinion in this case: “The easiest cases don’t even arise. There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a ease arose, the officials would be immune from damages [or criminal] liability.”

(citations and internal quotation marks omitted) (alterations in original). Try as we might, we cannot conceive of circumstances in which social workers would not know and understand that they could not use criminal behavior in any court setting to interfere with a person’s fundamental constitutional liberty interest. Their deportment as alleged by Preslie could not have reasonably “been thought consistent with the rights they are alleged to have violated.” Anderson, 483 U.S. at 638, 107 S.Ct. 3034.

E.

Costanieh

The defendants insist that the law they are alleged to have violated was not clearly established by February 2000. To support this assertion, they rely on our opinion in Costanich v. Dep’t of Soc. and Health Servs., 627 F.3d 1101 (9th Cir. 2010). Defendants contend that Costanieh dealt with the same familial association rights as the rights at issue here. We disagree. The interest at issue in Costanieh derived from state statutes and was materially different from the fundamental constitutional liberty interest in this case, and different in a pellucid manner that directly affects what a social woi’ker would comprehend about that interest.

In Costanieh, the social workers’ target was a person with a foster care license, not a legal parent. Kathie Costanieh had custody of three foster children plus three under dependency guardianships. The officials waived in the district court the argument that Ms. Costanieh lacked a protected interest, and thus we assumed, without deciding, that she had such an interest before proceeding to the question of whether the officials violated her constitutional rights. 627 F.3d at 1110, 1114 n.13, 1116 n.15.

We concluded that “there are sufficient distinctions between criminal prosecutions and civil foster care proceedings that the right had not yet been clearly established in the civil context.” Id. at 1116 (emphasis added). We recognized that “foster care licensees’ and custodial guardians’ interests do not rise to the level of a criminal defendant’s interests, which are clear and long established.” Id. at 1115.

Like the interests of criminal defendants, the fundamental liberty interests of parents and their children in their familial relationship has long been clearly established. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (explaining that the Fourteenth Amendment protects the liberty to “establish a home and bring up children”); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (recognizing the right of parents “to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (acknowledging that “the custody, care and nurture of the child reside first in the parents”); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (observing that a parent has a protected interest in the “companionship, care, custody, and management of his or her children”).

A foster parent’s interest is derived from the state and may differ according to state law and particular circumstances. See Smith v. Org. of Foster Families for Equal. and Reform, 431 U.S. 816, 845-46, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (“[Wjhere ... the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties.”). In contrast, the fundamental liberty interests of a legal parent and her child do not depend on, nor are they subject to, such individualized assessment. It stands to reason that a social worker might not know whether a person with only foster care and dependency guardianship custody of children would have a constitutional right in that statutory legal relationship. It does not stand to reason.that a social worker would be unaware of the fundamental liberty interests at stake involving legal parents and their children, interests protected in court by Due Process of law. Accordingly, we conclude that Costanich is distinguishable and not controlling.

VI

Recapitulation

Preslie has produced more than sufficient admissible evidence to create a genuine dispute as to whether her removal from her mother’s custody violated her constitutional rights. Also, the defendants’ case for qualified immunity from these charges is not supported by the law. or the record. Accordingly, the matter shall proceed in the district court to a final judgment.

AFFIRMED.