                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GREAT BASIN RESOURCE WATCH;               No. 14-16812
WESTERN SHOSHONE DEFENSE
PROJECT,                                    D.C. No.
             Plaintiffs-Appellants,      3:13-cv-00078-
                                            RCJ-VPC
                 v.

BUREAU OF LAND MANAGEMENT;                  OPINION
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.

      Appeal from the United States District Court
               for the District of Nevada
      Robert Clive Jones, District Judge, Presiding

        Argued and Submitted October 18, 2016
              San Francisco, California

               Filed December 28, 2016
2          GREAT BASIN RESOURCE WATCH V. BLM

    Before: Susan P. Graber and Mary H. Murguia, Circuit
        Judges, and Mark W. Bennett,* District Judge.

                     Opinion by Judge Graber

                            SUMMARY**

                        Environmental Law

    The panel affirmed in part, reversed in part, and vacated
in part the district court’s judgment, and remanded for further
proceedings in an action brought by plaintiffs challenging the
Bureau of Land Management’s approval of the Mt. Hope
Project, a proposed molybdenum mining operation near
Eureka, Nevada.

    Addressing plaintiffs’ challenge to several aspects of the
BLM’s analysis of the Project under the National
Environmental Policy Act, the panel held that the BLM’s
selection of baseline levels of certain air pollutants was
unreasonable, that the BLM’s analysis of cumulative air
impacts was deficient, that the BLM took the required “hard
look” at the potential impacts of poor pit-lake water quality
on ground water, and that the BLM’s discussion of long-term
mitigation and reclamation in the Final Environmental Impact
Statement was “reasonably complete.”

     *
     The Honorable Mark W. Bennett, United States District Judge for
the Northern District of Iowa, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         GREAT BASIN RESOURCE WATCH V. BLM                     3

    The panel declined to address plaintiffs’ claim that the
BLM violated its duty to protect lands “withdrawn from
settlement, location, sale or entry” under Executive Order
Public Water Reserve No. 107 (Apr. 17, 1926). First, the
panel held that 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.
Second, the panel held that the proper analysis of the claim
turned in large part on whether four springs in the area of the
Project were “covered” by the Executive Order, but the
BLM’s position on that question was unclear. The panel
remanded for clarification.

                         COUNSEL

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-Defendant-Appellee.
4        GREAT BASIN RESOURCE WATCH V. BLM

                         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
8,355 acres of disturbance is proposed within the 22,886-acre
         GREAT BASIN RESOURCE WATCH V. BLM                   5

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.
6        GREAT BASIN RESOURCE WATCH V. BLM

    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.
         GREAT BASIN RESOURCE WATCH V. BLM                   7

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
8        GREAT BASIN RESOURCE WATCH V. BLM

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 fair 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
         GREAT BASIN RESOURCE WATCH V. BLM                   9

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.
10         GREAT BASIN RESOURCE WATCH V. BLM

    In preparing the FEIS, the BLM instructed Eureka Moly1
“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 Park2 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-micron 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

     1
      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.
    2
      The FEIS cites a different NDEP official as the source of the
baseline values for 2.5-micron particulate matter concentrations.
         GREAT BASIN RESOURCE WATCH V. BLM                   11

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.
12         GREAT BASIN RESOURCE WATCH V. BLM

    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
         ìg/m^3 for a 24-hour average background and
         9.0 ìg/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
opinion3 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

     3
      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.)
         GREAT BASIN RESOURCE WATCH V. BLM                   13

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
14       GREAT BASIN RESOURCE WATCH V. BLM

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 check” 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 (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.
         GREAT BASIN RESOURCE WATCH V. BLM                   15

   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
16       GREAT BASIN RESOURCE WATCH V. BLM

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.
           GREAT BASIN RESOURCE WATCH V. BLM                             17

    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 stat[ed] 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 successive 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.4

    4
      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
18        GREAT BASIN RESOURCE WATCH V. BLM

     The BLM and Eureka Moly argue that the air 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

conclude that the cumulative air impacts analysis suffered from the same
deficiency.
         GREAT BASIN RESOURCE WATCH V. BLM                   19

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 “[i]nitial 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 over time relative to baseline concentrations and to
exceed the present Nevada water quality standards.” The
FEIS further predicts 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,
20        GREAT BASIN RESOURCE WATCH V. BLM

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 DEIS5 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 counter to NEPA’s goal of ensuring
informed agency decisionmaking. See Robertson, 490 U.S.
at 353 (“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,

     5
       The comments on the DEIS and the BLM’s responses thereto are
included as appendices to the FEIS.
         GREAT BASIN RESOURCE WATCH V. BLM                    21

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
22        GREAT BASIN RESOURCE WATCH V. BLM

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 reclamation 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).6 Although the “time

     6
      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;
           GREAT BASIN RESOURCE WATCH V. BLM                          23

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).7 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

         (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.
    7
      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.
24       GREAT BASIN RESOURCE WATCH V. BLM

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 mechanism 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 1095–96. We characterized the BLM’s action as consisting
         GREAT BASIN RESOURCE WATCH V. BLM                  25

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 352.
Making that assumption, we hold that the FEIS contains an
adequate discussion of those issues.
26       GREAT BASIN RESOURCE WATCH V. BLM

     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 evapotranspiration 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-à-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 evaluat[ing] the severity of [the Project’s] adverse
effects” on the environment. Robertson, 490 U.S. at 352.
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
         GREAT BASIN RESOURCE WATCH V. BLM                 27

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 ground-water 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 Moly]’s existing water rights if additional water
rights have not yet been secured.”
28         GREAT BASIN RESOURCE WATCH V. BLM

    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.”8 Plaintiffs note that EPA criticized the
BLM for this omission during the NEPA 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.9 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 decisionmaking and public participation, or
otherwise materially affected the substance of the agency’s

    8
      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.
     9
      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.
             GREAT BASIN RESOURCE WATCH V. BLM                       29

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).10

    10
         For this reason, we also decline to address Great Basin’s FLPMA
claim.
30         GREAT BASIN RESOURCE WATCH V. BLM

    Second, the proper analysis of the PWR 107 claim turns
in large part on whether four springs11 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.12 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)).

     11
      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.
     12
       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, 136 S. Ct. 2117, 2126 (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 (2005))).
        GREAT BASIN RESOURCE WATCH V. BLM               31

    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.


473 F.2d 814
Richard V. HENNINGER, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 26467.
United States Court of Appeals,Ninth Circuit.
Jan. 17, 1973.

William Beal Dunn (argued), of Dunn, Hart & McDonald, San Francisco, Cal., for plaintiff-appellant.
Walter H. Fleischer, Atty.  (argued) Leonard Schaitman, Atty., L. Patrick Gray, III, Asst. Atty. Gen., Washington, D. C., James L. Browning, U. S. Atty., San Francisco, Cal., for defendant-appellee.
Before DUNIWAY and TRASK, Circuit Judges, and BURNS,* District Judge.
DUNIWAY, Circuit Judge:

1
Henninger's Federal Tort Claims action was dismissed by the district court and he appeals.  We affirm.

2
Henninger was scheduled for discharge from the Navy on May 29, 1966.  At his physical examination, the last step in the discharge process, it was discovered that he had a double hernia.  Although Henninger expressed a desire to have this condition repaired after he became a civilian, he was informed that his medical release would not be signed unless he submitted to surgery while in the Navy.  He did so, and the operation was performed on May 25, 1966.  The Government has stipulated that this operation was performed negligently by Navy doctors, causing Henninger to suffer complete atrophy of his left testicle.

3
The trial court held that Henninger's claim is barred by the decision of the Supreme Court in Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152.  There, the Court held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159.  This rule was held to include the claims of persons who "while on active duty and not on furlough, [sustain] injury due to negligence of others in the armed forces."   Id. at 138, 71 S.Ct. at 155.

4
On its face, Feres disposes of this case.  Henninger asks us to avoid its coverage on three grounds.  First, he asks us to overrule Feres.  This argument is addressed to the wrong court.  Second, he argues that medical malpractice claims should be exempted from the Feres rule; otherwise we would be "countenancing" negligence by armed forces doctors.  Two of the claims which gave rise to Feres were based upon medical malpractice.  Thus this argument is merely a modification of the first, and we reject it for the same reason.

5
Third, Henninger argues that, even if the Feres rule is valid in the precise fact situations which were before the Court there, its rationale does not extend to this case.  This argument runs as follows: Feres was based upon the special relationship existing between a soldier and his superiors and the effect that Federal Tort Claims suits could have on military discipline.  Here, however, the operation which caused his injury was performed after he had been completely processed for discharge, so that permitting Henninger to sue could not have the undesirable consequences feared by the Supreme Court.  Thus, it is illogical to prevent this action, because it is undisputed that he could have brought it had the surgery been performed in a Veterans' hospital following his release from active duty.1

6
The precise rationale for the Feres rule and its continuing validity have been the source of some confusion.  Compare United States v. Lee, 9 Cir., 1968, 400 F.2d 558, 562-564, with Callaway v. Garber, 9 Cir., 1961, 289 F.2d 171, 172-174.  However, even if we were to accept Henninger's formulation of that rationale, he would not prevail here.  To determine the effect that a particular type of suit would have upon military discipline would be an exceedingly complex task, as Henninger concedes.  The proximity of the injury to discharge would be only one factor.  Whether it resulted from an allegedly negligent order would be another.  Whether it was caused by totally unrelated military personnel would be yet a third.  In short, nearly every case would have to be litigated and it is the suit, not the recovery, that would be disruptive of discipline and the orderly conduct of military affairs.  See Hall v. United States, 1 Cir., 1971, 451 F.2d 353, 354; Coffey v. United States, S.D.Cal., 1971, 324 F.Supp. 1087, 1088, aff'd. per curiam 9 Cir., 1972, 455 F.2d 1380.  This is a classic situation where the drawing of a clear line is more important than being able to justify, in every conceivable case, the exact point at which it is drawn.  This is especially so because servicemen injured incident to their service are entitled to Veterans' benefits.2  We hold that Feres absolutely bars Federal Tort Claims actions by servicemen injured "while on active duty and not on furlough . . . due to the negligence of others in the armed forces."3  However close to discharge Henninger was at the time of his injury, he was still on active status, and may not bring this action.

7
In a last ditch effort to save his suit, Henninger argues that the Government is "estopped" from invoking the rule of Feres, because he was told that he could not be released without having the hernia repaired, a representation which all parties now concede was false.  However, although this fact adds sympathy to Henninger's case, his argument fails.  The Federal Tort Claims Act excepts certain types of actions from the general rule that the Government is immune from suit.  Feres v. United States, supra, 340 U.S. at 139-140, 71 S.Ct. 153, 95 L.Ed. 152.  Henninger's claim is not cognizable under the Act, and is therefore not one to which Congress has consented.  It is axiomatic that no representations by Government agents can waive the Government's immunity.4  Cf. Federal Crop Insurance Corp. v. Merrill, 1947, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed.10.

8
Affirmed.

*
 Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation

1
 In such circumstances, his claim would fall within the precise holding of United States v. Brown, 1954, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139

2
 There is some confusion regarding whether the presence of an administrative remedy precludes relief under the Federal Tort Claims Act.  The answer seems to be yes, except when the alternative source of compensation is Veterans' benefits.  Compare United States v. Demko, 1966, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 with United States v. Brown, supra, note 1. However, while the availability of such benefits may not be determinative, we believe that it at least tips the scales in favor of a strict reading of Feres

3
 While we are aware of no case which expressly adopts the absolutist reading of Feres which we adopt here, it is significant that, of the vast number of cases interpreting that rule, Henninger cites us only one which departs from our holding.  Downes v. United States, D.N.C., 1966, 249 F.Supp. 626

4
 Henninger also suggests that preventing him from maintaining this action would violate his Fifth Amendment right to due process, although he does not tell us why. We see no reason why Congress could not choose to restrict servicemen to their administrative remedy


                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1635
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                    Joel L. Witt

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Lincoln
                                 ____________

                         Submitted: November 16, 2012
                           Filed: December 12, 2012
                                [Unpublished]
                                ____________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

      Joel Witt was charged with bank robbery in violation of 18 U.S.C. § 2113(a)
and 2113(d), and with brandishing a firearm during the robbery in violation of 18
U.S.C. § 924(c)(1)(A)–(B). After the district court1 denied his motion to suppress
evidence found in his car and statements made to the police after his arrest, Witt
entered conditional pleas of guilty. He was sentenced to 36 months on the first count
and 120 months on the second, to be served consecutively. Witt appeals his
convictions, arguing that the court erred by not suppressing the evidence in his car
and his post arrest confession. We affirm.

       At approximately 10 a.m. on April 18, 2011, state trooper Kevin Horst was in
Ogallala, Nebraska when he received a radio dispatch about an armed bank robbery
in Palisade, Nebraska. The robber was described as a male armed with an AR15 or
M16 rifle with an attached flashlight. He was reported to be driving a dark green or
black station wagon with Colorado license plates. The radio dispatcher asked
Trooper Horst to drive south on Highway 61 to look for the suspect vehicle.
Subsequently Horst received a message that another trooper had observed a green
station wagon heading west on Highway 23 about five miles from Horst’s location.
Horst thereafter met the other trooper on Highway 23, and the two officers stopped
the suspect station wagon outside of Grant, Nebraska. The stop was made
approximately 50 to 60 miles from the Palisade bank about one hour after the robbery
there. Although the station wagon had Nebraska license plates instead of the
Colorado plates originally reported, Horst had only seen about six vehicles in this
area of rural Nebraska that morning and this was the only station wagon.

      After the officers stopped the station wagon, they directed the driver to get out
and informed him there had been a bank robbery and that his vehicle “matched the
description” of the robber’s car. One of the troopers asked the driver if he had a
weapon, and he stated that he had an “AR” in the car. The troopers then secured him

      1
       The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska, adopting the recommendation of the Honorable Cheryl R. Zwart, United
States Magistrate Judge for the District of Nebraska.

                                         -2-
in one of their vehicles, and the driver identified himself as Joel Witt. In their search
of Witt’s car the officers found .223 caliber bullets, a loaded AR15 semiautomatic
rifle with a flashlight taped to the barrel, and a 12 by 8 inch black bag containing a
large amount of U.S. currency. Horst placed Witt under arrest and transported him
to a nearby police station where he confessed to the bank robbery.

       Witt was charged with bank robbery in violation of 18 U.S.C. § 2113(a)
and 2113(d), and with brandishing a firearm during the robbery in violation of 18
U.S.C. § 924(c)(1)(A)–(B). He moved to suppress the evidence from his car and his
post arrest confession, arguing that the officers had not had reasonable suspicion or
probable cause to stop his vehicle or to search it and that his confession was the fruit
of their violation of the Fourth Amendment. The district court denied Witt’s motion,
concluding that the officers had had reasonable suspicion to justify the roadside stop
and that the subsequent search was lawful. Witt then pled guilty to both counts while
reserving his right to appeal the denial of his motion to suppress. The court sentenced
him to 36 months on the first count and 120 months on the second count, the terms
to be served consecutively. Witt appeals his convictions, arguing that the evidence
found in his car and his confession should have been suppressed.

       We review the district court’s factual determinations for clear error and its legal
conclusions de novo. United States v. Hastings, 685 F.3d 724, 727 (8th Cir. 2012).
The district court’s denial of a motion to suppress will be upheld unless it is not
supported by substantial evidence, is based on an erroneous interpretation of
applicable law, or is clearly mistaken in light of the entire record. Id. Witt first
argues that his car was unlawfully stopped because the troopers “lacked a reasonable
basis” for it. Witt points out that the radio transmission to the police had described
a car with Colorado license plates while his were from Nebraska. He also argues
there was no detailed description of the suspect, his vehicle had been stopped far from
the crime scene, and the robber could have been 90 miles in any direction from the
bank by the time his vehicle was stopped.

                                           -3-
       A police officer may initiate a Terry stop to detain a citizen briefly “if the
officer has a reasonable suspicion that ‘criminal activity may be afoot.’” United
States v. Ortiz-Monroy, 332 F.3d 525, 528 (8th Cir. 2003) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)). The officer may draw on his experience and specialized
training in forming a suspicion, and the question of whether reasonable suspicion
exists is based on the totality of the circumstances. Id. at 528–29. Factors such as the
“temporal and geographic proximity of the car to the scene of the crime, [a] matching
description of the vehicle, and the time of the stop” can support a finding of
reasonable suspicion. United States v. Juvenile TK, 134 F.3d 899, 903–04 (8th Cir.
1998).

       We conclude that the troopers had reasonable suspicion to stop Witt’s car.
After receiving a radio dispatch generally describing the suspect’s vehicle, they were
looking for the car in rural Nebraska. Traffic had been light that morning, and they
stopped the only car they had seen which fit the description of a station wagon. The
car was traveling away from Palisade where the bank had been robbed, and the spot
at which it was stopped was approximately a one hour drive between the two. The
totality of these circumstances gave the troopers reasonable suspicion for making the
stop.

       Witt next challenges the search of his car and bag. Witt argues that the search
was not justified by fear for officer safety because at the time of the search he was
secured in a police vehicle. He also argues that the search of his bag was unlawful
because Trooper Horst admitted that he had been looking for incriminating evidence
rather than a weapon. Even after a suspect has been secured during a Terry stop,
however, officers may “conduct a protective sweep of the vehicle’s passenger
compartment to search for dangerous weapons that the suspect or other occupants
might later access” if the officers have “an objectively reasonable concern for [their]
safety or suspicion of danger.” United States v. Smith, 645 F.3d 998, 1002–03 (8th
Cir. 2011) (citing Michigan v. Long, 463 U.S. 1032, 1045–52 (1983)). Such a

                                          -4-
vehicle search may include closed containers which might hold a weapon. United
States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003).

       We conclude that the search of Witt’s car and bag was lawful. When the
troopers approached Witt, he admitted to having an “AR” in his car which was
consistent with the radio description of the gun carried by the bank robber. The
officers thus had an objectively reasonable basis to be concerned about their safety
and could have searched Witt’s car even after securing him. See Long, 463 U.S. at
1050–52. Although Trooper Horst admitted that he opened Witt’s bag to look for
incriminating evidence, the Fourth Amendment question is whether an objectively
reasonable officer would have been concerned that the bag contained a weapon. See
United States v. Plummer, 409 F.3d 906, 909 (8th Cir. 2005). We conclude that an
objectively reasonable officer in Horst’s situation could have believed that the bag
held a weapon because of the bag’s size and because another firearm had already been
discovered in the vehicle.

      Witt further argues that his post arrest confession at the police station should
have been suppressed as fruit of an unlawful stop and search. See Wong Sun v.
United States, 371 U.S. 471, 484–87 (1963). Since we have concluded that the stop
and search were lawful, Witt’s confession was properly admitted. For all these
reasons the district court did not err in denying his motion to suppress, and we affirm
Witt’s convictions.
                        ______________________________

                                         -5-


 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2014               Decided April 8, 2014

                        No. 13-1146

        REMINGTON LODGING & HOSPITALITY, LLC,
                     PETITIONER

                             v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT

            On Petition for Review of an Order
           of the National Labor Relations Board

     Jared D. Cantor, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
briefs were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney. Milakshmi V. Rajapakse, Attorney,
entered an appearance.

     Karl M. Terrell argued the cause and filed the brief for
petitioner. Arch Y. Stokes entered an appearance.

    Before: TATEL, BROWN, and MILLETT, Circuit Judges.

    Opinion for the Court filed by Circuit Judge TATEL.
                                2
     TATEL, Circuit Judge: The National Labor Relations
Board moves to transfer this petition for review of one of its
orders to the Ninth Circuit where another petition for review
of the same order has been filed. For the reasons set forth
below, we grant the motion.

                                I.
     Recognizing that those aggrieved by a single agency
action may petition for review in different courts of appeals,
Congress established rules, codified at 28 U.S.C. § 2112(a), to
consolidate such proceedings in a single court. If within ten
days of issuing an order, the agency “receives, from the
persons instituting the proceedings,” 28 U.S.C § 2112(a)(1), a
petition for review that has been “stamped by the court with
the date of filing,” id. § 2112(a)(2), then the agency must file
the relevant record in that court of appeals “notwithstanding
the institution in any other court of appeals of proceedings for
review of that order,” id. § 2112(a)(1). But if within the ten-
day period, the agency “receives, from the persons instituting
the proceedings,” two or more court-and-date-stamped
petitions relating to the same order filed in different courts of
appeals, then the Judicial Panel on Multidistrict Litigation
“shall, by means of random selection,” designate in which
court of appeals the agency shall file the record. Id.
§ 2112(a)(1), (3). In either case, all other courts of appeals
must then transfer any related proceedings to the court in
which the agency files the record. Id. § 2112(a)(5).

     Remington Lodging and UNITE HERE! Local 878 (“the
Union”) have both petitioned for review of the same National
Labor Relations Board order, though they have done so in
different circuits. The Union filed its petition for review in the
Ninth Circuit. To satisfy section 2112(a)(1), it then promptly
mailed a court-and-date-stamped copy to the Board.
Remington filed its petition for review in this court. Unlike
                               3
the Union, it never personally transmitted a court-and-date-
stamped copy to the Board. Instead, this court’s Clerk’s
Office, acting pursuant to section 10(f) of the National Labor
Relations Act, which directs the clerk to “forthwith” transmit
“[a] copy of” any filed petition for review to the Board, sent
the Board a copy of Remington’s petition. 29 U.S.C. § 160(f).
Although the Board concedes that it received this court-and-
date-stamped copy within section 2112(a)(1)’s ten-day time
limit, it argues that it did not “receive” the copy “from the
persons [i.e., Remington] instituting the proceedings.” See 28
U.S.C. § 2112(a)(1) (emphasis added). Claiming that it
therefore received only the Union’s petition within the
statutory ten-day period, the Board moves to transfer this case
to the Ninth Circuit. See id. § 2112(a)(5). Remington opposes
the motion, insisting that the Clerk’s Office’s transmission of
the petition pursuant to section 10(f) satisfied section
2112(a)(1).

                               II.
    The parties agree that the question before us turns on
whether the Clerk’s Office’s transmission to the Board of the
court-and-date-stamped copy of Remington’s petition
qualifies as a petition “receive[d]” by the Board “from the
persons instituting the proceedings.” If it does not (the
Board’s position), then we must transfer this petition to the
Ninth Circuit. If it does (Remington’s position), then the
Judicial Panel on Multidistrict Litigation will randomly select
which court of appeals will hear the challenges to the Board’s
order.

    According to the Board, section 2112(a)(1)’s language—
requiring receipt “from the persons instituting the
proceedings”—means what it says: that “it is the petitioner’s
(and not the court’s) service of a court-stamped petition on the
agency that is determinative.” Respondent’s Br. 9. This also
                               4
makes policy sense, the Board contends, because it “rightly
places the responsibility in the hands of the party seeking to
secure the protection of Section 2112” and allows the agency
to “promptly move to secure the proper forum without
waiting for a clerk’s office to process and serve the petition
for review.” Respondent’s Br. 10. And, as the Board points
out, both this and the Second Circuit have, in unpublished
opinions, found section 2112(a)(1) unsatisfied where the
Board received the petition for review only from the Clerk’s
Office. See Omaha World-Herald v. NLRB, No. 12-1005
(D.C. Cir. May 14, 2012); Local Union 36 v. NLRB, No. 10-
3448 (2d Cir. Dec. 28, 2010).

     The Board’s position finds ample support in section
2112(a)’s text, which expressly requires that the Board
“receive” the petition “from the persons instituting the
proceedings.” The Board may “receive[]” a petition “from the
persons instituting the proceedings” in a number of ways: the
petitioner might deliver the petition personally; send it
through an agent, such as a messenger; or mail it. But under
no ordinary reading of the statutory language would Board
receipt of a mailing from the Clerk’s Office qualify as one
“receive[d] from the persons instituting the proceedings.”
Were we to interpret “receives[] from the persons instituting
the proceedings” to include receipt from the Clerk’s Office—
the only other entity from which the Board might receive a
court-and-date-stamped copy of a petition for review—section
2112(a)’s receipt requirement would become meaningless.
See Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004)
(recognizing     “preference    for     avoiding     surplusage
constructions”). If Congress had intended the rule Remington
urges, it would have simply left the critical phrase out, so that
the statute would have read: “[i]f within ten days after
issuance of the order. . . [the Board] receives, from the
                               5
persons instituting the proceedings, the petition for review
. . . .”

     Remington’s reliance on the mailing by the Clerk’s
Office ignores the fact that sections 10(f) and 2112(a) perform
very different functions. Compliance with section 10(f)
initiates judicial review of a Board order and notifies the
Board that a petitioner seeks review. Compliance with section
2112(a) informs the Board that the petitioner seeks to take
advantage of the optional procedure for preserving its choice
of forum. Because every petitioner seeking review of a Board
order must comply with section 10(f), section 2112(a) can
serve its separate notice function only if petitioners wishing to
take advantage of that section’s forum selection procedure
comply with it separately.

    Finally, far from being “absurd” or a meaningless
formality, Pet’r’s Br. 14, requiring petitioners to comply
personally with section 2112(a) makes a good deal of sense. It
both alerts the agency that the petitioner cares about its
chosen forum and, as the Board explains, imposes the burden
of compliance on the party seeking to benefit from section
2112(a). In any event, Congress can make litigants “turn
square corners.” Rock Island, Arkansas & Louisiana Railroad
Co. v. United States, 254 U.S. 141, 143 (1920).

                               III.
     We grant the Board’s motion to transfer this petition for
review to the Ninth Circuit.

                                                    So ordered.


                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                              No. 02-6145

ARNOLD C. MOORE,

                                             Petitioner - Appellant,

          versus

RONALD   J.   ANGELONE,  Director,      Virginia
Department of Corrections,

                                              Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-01-486-AM)

Submitted:   April 25, 2002                    Decided:   May 6, 2002

Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Arnold C. Moore, Appellant Pro Se. Richard Bain Smith, Assistant
Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Arnold C. Moore appeals the district court’s order denying

relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 2001).   We have reviewed the record and the district court’s

opinion and find no reversible error.            Accordingly, we deny a

certificate    of   appealability   and    dismiss   the   appeal   on   the

reasoning of the district court. See Moore v. Angelone, No. CA-01-

486-AM (E.D. Va. Dec. 21, 2001).          We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                                DISMISSED

                                    2


459 F.2d 694
80 L.R.R.M. (BNA) 2464, 68 Lab.Cas.  P 12,669
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS LOCAL NO. 70OF ALAMEDA COUNTY, INTERNATIONAL BROTHERHOOD OFTEAMSTERS, CHAUFFEURS, WAREHOUSEMEN ANDHELPERS OF AMERICA, Respondent.
No. 71-1155.
United States Court of Appeals,Ninth Circuit.
May 4, 1972.

William Wachter (argued), Herbert Fishgold, Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Eugene G. Goslee, Acting Gen. Counsel, Washington, D. C., Roy O. Hoffman, San Francisco, Cal., for petitioner.
Edward M. Kovach (argued), Duane Beeson, of Brundage, Neyhart, Grodin & Beeson, Robert M. Lieber, of Littler, Mendelson & Fastiff, San Francisco, Cal., for respondent.
Before ELY and HUFSTEDLER, Circuit Judges, and JAMESON,* District Judge.
ELY, Circuit Judge:

1
The sole issue in this enforcement proceeding concerns the interpretation of sections of the National Labor Relations Act declaring it an unfair labor practice for a labor organization either to restrain or coerce an employer in the selection of his bargaining representative, section 8(b) (1) (B), 29 U.S.C. Sec. 158(b) (1) (B),1 or to refuse to bargain collectively with an employer.  Section 8(b) (3), 29 U.S.C. Sec. 158(b) (3).2  The Board, in its Decision and Order reported at 183 NLRB No. 137, concluded that the Union had violated these statutory provisions when it refused to negotiate with certain employers represented by one Royster, the immediate past president of the Union.

2
******

3
* * *

4
After Royster was defeated in his attempt to gain reelection as Union president, he sought employment as a labor relations consultant for management.  On behalf of one of his first clients, Wisinger Trucking Service, Inc., Royster dealt amicably with the Union for two months, during which period he investigated and instigated the resolution of several disputes and grievances against Wisinger.  While subsequently attempting to resolve another grievance against Wisinger, however, Royster was told that the Union had decided, pursuant to orders from the new president and Executive Board of the Union, no longer to deal with him as a representative.  A few days later, Royster attended a contract negotiations meeting as the representative for Kockos Brothers, Inc., another client, whereupon the Union implemented the prior warning by first refusing to deal while Royster remained in the room and then terminating the meeting when he declined to leave.  On the following day, the Union formally advised employers represented by Royster that it would refuse to bargain with them so long as Royster was their representative.  The Union's only expressed reason was that Royster, as a former president, could not deal with the Union "in an adversary capacity."

5
A literal interpretation of the statutory language would seem to indicate that a Union would never be justified in refusing to bargain with an employer, regardless of the representative's former ties with the Union.  As recognized by our Brothers of the Second Circuit, in what is perhaps the leading case with respect to the employer's correlative duty to bargain with the Union, these statutory rules are not absolute.

6
"There have been exceptions to the general rule that either side can choose its bargaining representatives freely, but they have been rare and confined to situations so infected with ill-will, usually personal, or conflict of interest as to make good-faith bargaining impractical."

7
General Electric Co. v. N. L. R. B., 412 F.2d 512, 517 (2d Cir. 1969).

8
The Union's argument in our case can be readily dismissed.  It was conceded upon oral argument that there were no facts in the record to support a charge that Royster had misused confidential information or that his selection as the bargaining representative was prompted by an "ulterior motive" on the part of the employers to gain an unfair advantage over the Union.  See General Electric Co. v. N. L. R. B., supra at 518.  Hence, the Union's position is reduced to its urging that because of the nature of the prior relationship between an executive officer and the Union, there arises a presumption against the propriety of a former official's becoming a bargaining representative of an employer negotiating with that Union.

9
The lack of merit of this argument is indicated by the wording and purpose of the statutes the Union has been charged with violating.  The statutory language obviously imposes duties on the Union to bargain with employers and to refrain from coercing them in their choice of representatives.  In order to avail itself of an exception to these statutory duties, the Union must prove that it is entitled to the application of the exception.  See General Electric Co. v. N. L. R. B., supra at 517.

10
Only in truly exceptional circumstances should a Union be permitted to refuse to bargain with an employer represented by a former Union official.  In order to meet bizarre instances of abuse in the collective bargaining process, see N. L. R. B. v. International Ladies' Garment Workers' Union (Slate Belt), 274 F.2d 376, 379 (3d Cir. 1960) (employer, by hiring former union official as bargaining representative, claimed it had "put one over on the union" and placed "the union on the spot"), a flexible standard such as "good faith" has been employed.  See General Electric Co. v. N. L. R. B., supra at 516-517.  As a legal test, however, the "good faith" standard lacks precision.  We think it better that the test be formulated in terms which focus directly on the danger posed by the selection of a former Union official as an employer's bargaining representative-the violation of the former relationship of trust through the misuse of confidential information.  Thus we hold that, in cases of this nature, the burden is upon the Union to demonstrate that the representative in the particular dispute has gained an unethical or overreaching advantage by the misuse of specific confidential information acquired by reason of his former tenure as a Union official.3

11
Since the Union in this case did not meet that burden, the Board's petition for the enforcement of its Order is

12
Granted.

*
 Honorable William J. Jameson, Senior United States District Judge, Billings, Montana, sitting by designation

1
 Section 8(b) (1) (B) provides
"(b) It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce . . .
(B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances . . .."

2
 Section 8(b) (3) provides
"(b) It shall be an unfair labor practice for a labor organization or its agents-
(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159(a) . . .."

3
 The Union apparently had no by-law, nor any contract between it and Royster, which might possibly have precluded Royster from accepting employment that would force him to deal with the Union in an adversary capacity