United States District Court, D. Arizona
For Grand Canyon Trust, Center for Biological Diversity, Sierra Club, Havasupai Tribe, Plaintiffs: Marc D Fink, LEAD ATTORNEY, Center for Biological Diversity, Duluth, MN; Neil Levine, LEAD ATTORNEY, Grand Canyon Trust, Denver, CO; Richard Warren Hughes, LEAD ATTORNEY, Rothstein Donatelli Hughes Dahlstrom Schoenburg & Bienvenu LLP - Santa Fe, NM, Santa Fe, NM; Roger Flynn, LEAD ATTORNEY, Western Mining Action Project, Lyons, CO.
For Michael Williams, Forest Supervisor, Kaibab National Forest, United States Forest Service, an agency in the U.S. Department of Agriculture, Defendants: Beverly F Li, LEAD ATTORNEY, U.S. Dept of Justice - ENRD, Washington, DC.
For Energy Fuels Resources (USA) Incorporated, EFR Arizona Strip LLC, Intervenors: Bradley Joseph Glass, David J DePippo, Michael K Kennedy, LEAD ATTORNEYS, Gallagher & Kennedy PA, Phoenix, AZ.
David G Campbell, United States District Judge.
Defendants have filed a partial motion to dismiss. Doc. 71. The motion is fully
briefed (Docs. 118, 120, 123), and the Court heard oral argument on August 1, 2014. For the reasons stated below, the Court will deny the motion.
This case arises out of renewed operations of the Canyon Uranium Mine (" Canyon Mine" ). The Canyon Mine is located six miles south of Grand Canyon National Park in the Kaibab National Forest, and four miles north of Red Butte, a religiously significant site for Plaintiff Havasupai Tribe. Doc. 115, ¶ ¶ 2, 49.
In 1984, Energy Fuels Nuclear (" EFN" ) proposed to develop two unpatented mining claims in the area. Id., ¶ 29. In 1986, the Forest Service, after preparing an Environmental Impact Statement (" EIS" ), issued a Record of Decision (" ROD" ) approving a Plan of Operations for the mine. Id., ¶ 30. Several administrative appeals were filed, and the Deputy Regional Forester and Chief of the Forest Service each affirmed the ROD after a full review of the record. In 1988, the Havasupai Tribe challenged the Forest Service's approval of the Canyon Mine in this Court. Id., ¶ 35. The Court found in favor of the Forest Service on all claims, Havasupai Tribe v. United States, 752 F.Supp. 1471 (D. Ariz. 1990), and the Ninth Circuit affirmed, Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991). Surface structures were built and the mine shaft was constructed to a depth of 50 feet, but EFN placed the mine on standby status when uranium prices dropped in 1992. Doc. 115, ¶ 37.
The Federal Land Policy and Management Act (" FLPMA" ) authorizes the Secretary of the Interior to withdraw public lands from mining operations. 43 U.S.C. § 1714(a). On July 21, 2009, the Secretary published notice of his intent " to withdraw approximately 633,547 acres of public lands and 360,002 acres of National Forest System lands for up to 20 years from location and entry under the Mining Law of 1872." Notice of Proposed Withdrawal, 74 Fed. Reg. 35,887. Over the next two years, the Department of Interior (" DOI" ) undertook extensive study and preparation of an EIS and ROD to finalize a permanent withdrawal in the area. In 2010, the U.S. Geological Survey issued an evaluation of the uranium mining impacts in the proposed withdrawal area. Doc. 115, ¶ 48.
In September 2011, Energy Fuels Resources Inc. (" Energy Fuels" ), which had acquired the Canyon Mine from EFN, informed the Forest Service that it intended to reopen the mine under the original Plan of Operations. Id., ¶ 50. In January 2012, DOI withdrew more than 1,000,000 acres from mineral location and entry for 20 years, subject to valid existing mineral rights (" the Withdrawal" ). Id., ¶ 54. Land covered by the Withdrawal included the Canyon Mine. One month after the Withdrawal, the Forest Service completed an evaluation and concluded that valid existing mineral rights (" VERs" ) existed for the two claims at Canyon Mine as of the date of the Withdrawal (the " VER Determination" ). Id., ¶ 58. In June 2012, the Forest Service concluded that neither a modification of the 1986 Plan of Operations nor a supplemental EIS under NEPA were required for the Canyon Mine to resume operations. Id., ¶ 62.
Plaintiffs brought suit in March 2013, challenging the government's approval of renewed operations at Canyon Mine. Doc. 1. On June 13, 2013, Defendants moved to dismiss Plaintiffs' claims for lack of subject matter jurisdiction and also sought dismissal of certain claims on the basis of res
judicata and the statute of limitations. Doc. 71. Plaintiffs moved to stay consideration of the motion to allow discovery on jurisdictional defenses. The Court granted the motion to stay and allowed Plaintiffs a " reasonable but limited opportunity to develop additional facts to support their jurisdictional arguments." Doc. 85. Discovery and briefing on the jurisdictional issues was completed on May 19, 2014.
II. Legal Standard.
A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction " may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)) (citation omitted).
Defendants' motion has become a factual attack on jurisdiction. In resolving such an attack, the Court " may review evidence beyond the complaint without converting the motion to dismiss to a motion for summary judgment." Safe Air for Everyone, 373 F.3d at 1039; see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). The Court may not resolve genuine factual disputes if jurisdictional and substantive issues are intertwined. See Augustine, 704 F.2d at 1077; Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Instead, the Court must find that jurisdiction exists and address the motion to dismiss as a motion for summary judgment attacking the merits of Plaintiff's case. See Safe Air for Everyone, 373 F.3d at 1039-40, n.3. The Court need not presume the truthfulness of Plaintiff's allegations. Id. at 1039 (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003), White, 227 F.3d at 1242). Plaintiffs have the burden of establishing subject matter jurisdiction. Safe Air for Everyone, 373 F.3d at 1039.
Plaintiffs' claims are brought under the Administrative Procedures Act (" APA" ). Defendants argue that some of the claims should be dismissed because they do not challenge a " final agency action" as required by § 704 of the APA. 5 U.S.C. § 704. This includes Plaintiffs' assertion in Claim 1 of the amended complaint that a supplemental EIS should have been performed under NEPA before the VER Determination issued, their assertion in Claim 2 that Defendants failed to comply with § 106 of the National Historic Preservation Act (" NHPA" ) before completing the VER Determination, and their assertion in Claim 4 that the VER Determination was arbitrary because the Forest Service ignored relevant economic factors. Doc. 115.
A. Claims 1 and 4.
Because judicial review under the APA applies only to final agency actions, 5 U.S.C. § 704, the Court must decide whether the VER Determination is a final agency action. There are two components to this inquiry. First, the Court must decide whether the VER Determination is an " agency action" ...