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Yount v. Salazar

United States District Court, D. Arizona

September 30, 2014

Gregory Yount, et al., Plaintiffs,
v.
Kenneth Lee Salazar, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

This case concerns a withdrawal by the Secretary of the Interior of more than one million acres of federal land from uranium mining. The withdrawn land surrounds Grand Canyon National Park and includes a North Parcel of approximately 550, 000 acres, an East Parcel of approximately 135, 000 acres, and a South Parcel of some 322, 000 acres. The withdrawal will close these lands to the exploration and development of uranium mining claims for 20 years, although mining of a few existing claims will be permitted. Plaintiffs in this case include counties, associations, companies, and an individual with interests in uranium mining. They ask the Court to set aside the withdrawal as illegal under several federal statutes.

Motions for summary judgment have been filed by Plaintiffs American Exploration & Mining Association ("AEMA") and Gregory Yount (Doc. 167), Plaintiffs Nuclear Energy Institute and National Mining Association ("NEI and NMA") (Doc. 170), and Plaintiffs Arizona Utah Local Economic Coalition ("the Coalition") and Quaterra Resources, Inc. (Doc. 173). Defendant United States and Defendant-Intervenors Center for Biological Diversity, Grand Canyon Trust, Havasupai Tribe, National Parks Conservation Association, and the Sierra Club (collectively "Defendants") have filed cross-motions for summary judgment. Docs. 198, 208. The Court heard oral argument on September 9, 2014. For reasons that follow, the Court will grant summary judgment in favor of Defendants and not set aside the Secretary's withdrawal decision.

I. Background.

Lands around the Grand Canyon have seen mining activity since the late 1800s. AR 84. When President Theodore Roosevelt created the Grand Canyon Preserve in 1906, he withdrew much of the land from mining, but mines were opened on land surrounding the canyon when uranium deposits were discovered in the 1940s and 1950s. AR 2. Uranium near the canyon is found in breccia pipes - pipe-shaped mineral deposits that extend thousands of feet underground. Five of these pipes were mined for uranium in the 1950s, with the Orphan Mine producing more than 2, 000 tons of uranium between 1952 and 1969. AR 84. Exploration increased when uranium prices spiked in the 1970s. AR 2. Much of the exploration was in the North Parcel. AR 84.

During the 1970s, the U.S. Geological Survey ("USGS") began studying uranium deposits in the area and produced maps detailing breccia pipe deposits. In the 1980s and 1990s, six new uranium mines produced almost 1.5 million tons of uranium and more than 900 exploration holes were drilled in the Tusayan Ranger District. AR 2.

Many of the uranium mines were put on standby status when the price of uranium dropped in the 1990s, but a price rise in 2004, followed by a surge to more than $130 per pound in 2007, prompted renewed interest in uranium mining and thousands of new mining claims were located. AR 3. These new claims prompted concerns about the potential impact of uranium mining on the Grand Canyon watershed and led Arizona Congressman Raúl Grijalva to introduce legislation that would permanently withdraw more than one million acres around the canyon from mining. Id.

On July 21, 2009, Interior Secretary Ken Salazar published a notice of intent to withdraw 633, 547 acres of public lands and 360, 002 acres of National Forest land for up to 20 years from location and entry under the Mining Law of 1872. See Notice of Proposed Withdrawal, 74 Fed. Reg. 35, 887 (July 21, 2009). The notice had the immediate effect of withdrawing the lands for a period of two years to permit analysis and study under the National Environmental Protection Act ("NEPA"). The Bureau of Land Management ("BLM") published a notice of its intent to prepare an Environmental Impact Statement ("EIS"), with the stated purpose "to protect the Grand Canyon watershed from adverse effects of locatable mineral exploration and mining, except for those effects stemming from valid existing rights." 74 Fed. Reg. 43, 152-53 (Aug. 26, 2009).

In accordance with NEPA, BLM issued its Draft EIS ("DEIS") on February 18, 2011 (76 Fed. Reg. 9, 594), and, after an extended comment period, issued its Final EIS ("FEIS") on October 27, 2011 (76 Fed. Reg. 66, 747). The Department of the Interior ("DOI") issued a Record of Decision ("ROD") on January 9, 2012, which withdrew 1, 006, 545 acres from mining pursuant to the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1714. AR 1-23. This 2012 decision, referred to in this order as "the Withdrawal, " is challenged by Plaintiffs in this case.

On January 8, 2013, the Court granted in part and denied in part Defendants' motions to dismiss several claims for lack of standing. Doc. 87. The Court dismissed all claims under NEPA brought by Plaintiffs Yount, AEMA, and Quaterra, leaving only NEPA claims by NEI, NMA, and the Coalition. Plaintiffs' claims under the FLPMA and the Administrative Procedures Act ("APA") remain. Plaintiff Yount also alleges that the Withdrawal's stated purpose of protecting the cultural and religious heritage of Native American tribes violates the Establishment Clause of the United States Constitution. Doc. 27, ¶ 144-148.

II. The Withdrawal Decision.

The Secretary decided to proceed with the Withdrawal after evaluating possible effects of uranium mining in the DEIS and FEIS. These documents included a detailed analysis of four different alternatives: (a) no withdrawal of land from uranium mining, referred to in the FEIS as the "no action" alternative; (b) withdrawal of the proposed 1, 006, 545 acres; (c) withdrawal of 648, 802 acres; and (d) withdrawal of 292, 086 acres. AR 13-14. Before selecting these alternatives, BLM considered other possible courses of action including a shorter withdrawal period of 10 years, a withdrawal limited to lands with a low mineral potential, phased mining, a permanent withdrawal, a change in federal law to provide additional environmental protections, and the adoption of new mining regulations. BLM eliminated each of these alternatives before preparing the FEIS, and the Secretary ultimately selected the full withdrawal alternative. AR 14-15.

In preparation for the EIS, the Secretary directed USGS to prepare a scientific report on various issues raised by the proposed withdrawal. In response, the USGS prepared Scientific Investigations Report XXXX-XXXX (the "USGS Report"). AR 57-415. With this report in hand, BLM prepared the DEIS and published it in February 2011 for a 45-day public comment period. The public comment period was later extended to 75 days, and more than 296, 000 comments were received. BLM also hosted four public meetings and held community meetings with various tribes to discuss the DEIS. AR 17.

The DEIS, FEIS, and ROD relied heavily on the USGS Report. In the report, USGS analyzed soil and sediment samples at six sites that experienced various levels of uranium mining north of the Grand Canyon, including reclaimed uranium mine sites, approved sites where mining was temporarily suspended, and exploratory sites that were drilled but not mined. Uranium and arsenic were consistently detected in these areas at levels above natural background. AR 9. Samples from 15 springs and five wells in the region contained dissolved uranium concentrations greater than EPA maximum concentrations for drinking water. USGS was uncertain whether these concentrations resulted from mining, natural processes, or both. Id. USGS also found that floods, flash floods, and debris flows caused by winter storms and intense summer thunderstorms transported substantial volumes of trace elements and radionuclides. Id.

USGS also evaluated an additional 1, 014 water samples from 428 sites and found that about 70 sites exceeded the primary or secondary maximum contaminant levels for certain major ions and trace elements such as arsenic, iron, lead, manganese, radium, sulfate, and uranium. AR 10. USGS noted that fractures, faults, sinkholes, and breccia pipes occur throughout the area and are potential pathways for downward migration of contaminants, but concluded that a more thorough investigation is required to understand groundwater flow paths, travel times, and contributions from mining. AR 9-10.

In addition to this analysis of potential contamination, the FEIS found that the "no action" alternative would result in significantly more mining activity than would occur under the full Withdrawal: 19 more uranium mines, 211, 280 more ore truck trips, 16 more miles of power lines, 1, 200 more acres disturbed for mining, and 200, 000, 000 more gallons of water used in mining. AR 2774. This was true even though some uranium mining would continue under the Withdrawal. Id.

One common problem was encountered by all of the withdrawal studies: the size of the proposed withdrawal area and its location as remote forest and rural land meant that relatively little data was available for analysis. The FEIS and ROD acknowledged this lack of information. See, e.g., AR 9; AR 2070-71. In particular, these documents noted uncertainty about the potential impacts of uranium mining on perched and deep aquifers, including the R-aquifer (the principal aquifer in the area), and about the effects of increased radionuclide exposure on plants and animals. AR 10.

In the face of these uncertainties, the FEIS and ROD adopted "a cautious and careful approach." AR 9. This approach was deemed warranted for several reasons, expressed in these words by the ROD:

Crafted by the immense power of the Colorado River, the Grand Canyon and the greater ecosystem that surrounds it have long been recognized as one of the Nation's most treasured landscapes. The area is known as a home or sacred place of origin to many Native Americans, including the Havasupai, Hualapai, Navajo, Hopi, Zuni, Southern Paiute, and others, and its cultural significance goes back thousands of years.... The Park is a world heritage site and an international icon.
* * *
The Grand Canyon and the greater ecosystem surrounding it is a cornerstone of the region's economy with hunting, fishing, tourism, and other outdoor recreation generating billions of dollars in economic activity in the area. Millions of people living in seven states in the U.S. and in Mexico depend upon the Colorado River for water for drinking, irrigation, and individual use, as well as for hydropower.

AR 4-5.

The FEIS ultimately found that the risk of groundwater contamination from uranium mining was low, but that the possible consequences of such contamination were severe. AR 9. Faced with even a remote prospect of severe contamination in waters adjacent to the Grand Canyon, DOI chose to err on the side of caution. It elected to proceed with the full Withdrawal for a period of 20 years.

In addition to risks of groundwater contamination, the ROD opted for the full Withdrawal because "[a]ny mining within the sacred and traditional places of tribal people may degrade the values of those lands to the tribes who use them." AR 9, 11. The ROD also found that "[t]he volume of truck traffic expected without a withdrawal could create a major cumulative effect to visual resources resulting from dust emissions of vehicle passage." AR 11. The ROD further noted that even with the Withdrawal in place, up to eleven uranium mines would be permitted to operate in the withdrawn area on the basis of existing claims, a pace of development "roughly equivalent to the pace of development that occurred during the peak of uranium interest during the 1980s." AR 9. Thus, "even with a full withdrawal, the economic benefits of continued uranium mining could still be realized by local communities." AR 11. The ROD noted that "[w]hile the lands are withdrawn, studies can be initiated to help shed light on many of the uncertainties identified by USGS in [the USGS Report] and by BLM in the EIS." Id.

III. Standing.

Defendants argue that Plaintiffs NEI, NMA, and the Coalition cannot establish standing for the remaining NEPA claims. To establish Article III standing, a plaintiff must show "that he has suffered injury in fact, ' that the injury is fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162 (1997). Plaintiffs must also show prudential standing, which examines whether "a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit." City of Sausalito v. O'Neill, 386 F.3d 1186, 1199 (9th Cir. 2004). Prudential standing analysis historically has required NEPA plaintiffs to show that their alleged injury falls within NEPA's zone of interests. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 861 (9th Cir. 2005).

The Supreme Court's recent decision in Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1387 (2014), has changed the terms of discussion for prudential standing. It explained that "prudential standing is a misnomer as applied to the zone-of-interests analysis, " and recast the test as a matter of statutory interpretation "which asks whether this particular class of persons ha[s] a right to sue under this substantive statute." Id . Lexmark directs courts to "determine the meaning of the congressionally enacted provision creating a cause of action." Id. at 1388.

A. NEI and NMA.

Defendants argue that NEI and NMA's alleged injury is speculative, that the injury does not fall within NEPA's zone of interest, and that any claim that the injury is environmental as opposed to economic is a pretext. Doc. 198 at 29-31.[1] In its ruling on Defendants' motion to dismiss, the Court engaged in a lengthy analysis of Plaintiffs' standing. Doc. 87. The Court found that NEI and NMA had shown Article III standing because the Withdrawal imposed expensive and years-long examination processes on their members and reduced the value of existing mining claims and claim investments. Id. at 8. The Court noted that private economic losses due to governmental action are routinely found sufficient to show injury for purposes of Article III standing. Id. The Court stands by this decision. NEI and NMA have clearly shown that their members suffered financial harm as a result of the Withdrawal. Id. at 6-10.

In assessing whether injury to NEI and NMA fell within NEPA's zone of interest, the Court found that NEI and NMA had alleged a link between the Withdrawal and an environmental injury that, if supported, would bring them within NEPA's zone of interests. Id. at 31. Specifically, NEI and NMA claimed to have environmental interests in reducing aggregate mining impacts by conducting environmentally responsible mining operations. They alleged that mining rich breccia pipes found around the Grand Canyon produces less environmental disturbance than mining lower quality uranium ore in other locations, and that the Withdrawal therefore would force them to engage in more environmentally harmful mining. Taking these allegations as true, the Court found that NEI and NMA had identified an injury within NEPA's zone of interests. Id. The Court also observed that the cases cited by Defendants arose at the summary judgment stage, not the pleading stage. Id. This case is now at the summary judgment stage, and Plaintiffs must present proof - and not merely allege - that they have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ("In response to a summary judgment motion... the plaintiff can no longer rest on such "mere allegations, " but must "set forth" by affidavit or other evidence "specific facts[.]").

Purely economic injuries do not fall within NEPA's zone of interests. Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th Cir. 2005). But this does not mean that plaintiffs who assert economic injuries are precluded from bringing suit under NEPA. A plaintiff can sue under NEPA "even if his or her interest is primarily economic, as long as he or she also alleges an environmental interest or economic injuries that are causally related to an act within NEPA's embrace.'" Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 415 F.3d 1078, 1103 (9th Cir. 2005), as amended (Aug. 17, 2005).

In its previous order, the Court noted that the parties had cited no authority for the proposition that a plaintiffs' environmental injury must also satisfy the requirements of Article III standing. Doc. 87 at 32-33. The Court therefore held that NEI and NMA "can satisfy Article III standing by their members' very real economic injuries discussed above, and satisfy NEPA prudential standing by the environmental interests they and their members possess in limiting the disruptive effects of uranium mining." Id. at 33. In other words, the Court found that one of their injuries (economic harm caused by the Withdrawal) could satisfy Article III standing, while a different injury (being forced to engage in more environmentally disruptive mining) could satisfy NEPA.

The Court now concludes that this was error. In this round of briefing, Defendants have cited case law holding that "the injury that supplies constitutional standing must be the same as the injury within the requisite zone of interests' for purposes of prudential standing." Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1231 (D.C. Cir. 1996); see also Douglas Timber Operators, Inc. v. Salazar, 774 F.Supp.2d 245, 256 (D.D.C. 2011) (same). The Ninth Circuit appears to have applied the same requirement in a recent unpublished opinion, holding that the plaintiff could not bring suit under NEPA because the plaintiff's "economic injury... suffices for Article III standing but does not fall within NEPA's zone of interests... [and Plaintiff's] environmental injury... is within NEPA's zone of interests but will not be redressed by a favorable decision [and thus does not satisfy Article III standing]." Oberdorfer v. Jewkes, No. 12-36082, 2014 WL 3644015 *1 (9th Cir. July 24, 2014). In other words, Article III standing and the NEPA zone of interests test must be satisfied by the same injury. See Mountain States, 92 F.2d at 1231 ("[I]f plaintiffs established an interest sufficiently aligned with the purposes of the ESA for prudential standing, but failed to show (for example) an adequate causal relation between the agency decision attacked and any injury to that interest, we could not adjudicate the claim - even if plaintiffs had constitutional standing with respect to some other interest that was outside the requisite zone.'").

Neither Mountain States nor Oberdorfer provides any rationale for the requirement that one injury must satisfy both forms of standing. Mountain States describes the requirement as "obvious, " but also notes that it could find no other case that adopted it. 92 F.3d at 1231. And Oberdorfer cites no authority for this requirement.

The Court concludes, nonetheless, that the single-injury requirement makes sense. In Lexmark, the Supreme Court explained that whether a plaintiff comes within a statute's zone of interests requires courts "to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim." 134 S.Ct. at 1387. The focus is on legislative intent. In this case, the stated purpose of NEPA is entirely environmental - to "promote efforts which will prevent or eliminate damage to the environment and biosphere[.]" 42 U.S.C. § 4321. "Section 101 of NEPA declares a broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). Given Lexmark 's focus on legislative intent and the exclusively environmental purposes of NEPA, it makes sense to require that the gravamen of Plaintiffs' complaint - the wrong that brings them to court - must fall within NEPA's zone of interests. Requiring that a concrete, Article III injury fall within that zone of interests will ensure that the animating wrong asserted by Plaintiffs comports with the environmental purposes for which NEPA was enacted. The claims will align with congressional intent - the primary consideration after Lexmark.

The Court will follow Mountain States and Oberdorfer. To pursue a claim under NEPA, "the injury that supplies constitutional standing must be the same as the injury within the requisite zone of interests.'" Mountain States, 92 F.3d at 1231.[2]

NEI and NMA do not satisfy this requirement. Their economic injury - the expensive and lengthy claim examination process and the loss of value in existing claims and investments - satisfies Article III standing because it constitutes injury in fact, is traceable to the Withdrawal, and likely would be redressed if the Court were to set aside the Withdrawal. Lujan, 504 U.S. at 560. But the injury is a purely economic injury and therefore does not fall within NEPA's zone of interests. Ashley Creek, 420 F.3d at 940.

Conversely, NEI and NMA's environmental injury - being forced to engage in more environmentally disruptive mining - falls within NEPA's zone of interests, but it is not a concrete injury sufficient to satisfy Article III. NEI and NMA rely on the affidavit of a Vice President of Mining at Uranium One, a member of both NEI and NMA. Doc. 171-1 at 5-8. The affidavit describes uranium claims held by Uranium One in Utah and asserts generally that they are of lower quality and more difficult to mine than breccia pipes. But the affidavit fails to provide any concrete evidence regarding when, how, or even whether Uranium One will actually mine these deposits. Id. The affidavit states that Uranium One "is still deciding which of its uranium deposits at other sites it will mine." Id., ¶ 7. Because the affidavit does not state that such mining will occur and provides no specific information about the grade of the uranium to be mined or what environmental impacts would result from mining it, NEI and NMA have failed to show that they are "imminently threatened with a concrete and particularized injury in fact'" as a result of the need to mine less concentrated uranium ore. Lexmark, 134 S.Ct. at 1386. Their alleged environmental harm therefore does not satisfy the injury-in-fact requirement for Article III standing. Id.

In short, NEI and NMA fail to establish a single injury that both satisfies the requirements of Article III and falls within NEPA's zone of interests. They therefore cannot assert a NEPA claim under the requirement recognized in Mountain States and Oberdorfer. The Court will enter summary judgment on NEI and NMA's NEPA claims.

B. The Coalition.

In ruling on the motions to dismiss, the Court found that the Coalition had standing to bring NEPA claims on behalf of its member Mohave County. Doc. 87. The Court engaged in an extensive analysis of the County's proprietary interests and procedural injury ( id. at 16-24), and found that these interests and injuries satisfied Article III standing requirements and fell within NEPA's zone of interests under cases such as Douglas Cnty. v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), and City of Davis v. Coleman, 521 F.2d 661, 672 (9th Cir. 1975) (Doc. 87 at 45). Defendants do not challenge most of this analysis in their motion for summary judgment. They instead argue that the County (and therefore the Coalition) lacks standing because its injury is speculative and it failed to raise its environmental concerns before the agency. The Court disagrees with both assertions.

The Coalition has shown that Mohave County "has a mandate to retain environmental quality and to capitalize on its wealth of natural, built and human resources." 12-cv-8075, Doc. 30, ¶ 24.[3] As stated in the County's General Plan, this mandate includes "the growth of communities that maintain the health and integrity of its valuable environmental features'; the protection of wetlands, washes, aquifer recharge areas, areas of unique flora and fauna, and areas with scenic, historic, cultural and recreational value'; and avoiding industrial development that has the undesired effect of increasing air pollution.'" Id.

The Coalition has also shown that the Withdrawal will reduce Mohave County's available funds to pave its roads (thereby reducing dust and erosion) and protect desert tortoise habitat. Doc. 72-2, ¶¶ 27, 32-34; Doc. 188-6, ¶¶ 7, 14-28. Projected state revenues that flow to Mohave County from the mining industry will be reduced as a result of the Withdrawal. The Coalition has presented evidence that, but for the Withdrawal, "there would be over a 40-year period: 1, 078 new jobs in the project area; $40 million annually from payroll; $29.4 billion in output; $2 billion in federal and state corporate income taxes; $168 million in state severance taxes; and $9.5 million in mining claims payments and fees to local governments." 12-cv-8075, Doc. 30, ¶ 127; see also Doc. 72-2 at 13-14, ¶¶ 36-37. Loss of the county's share of this revenue will impair its ability to pave its 1, 277 miles of unpaved roads and manage its desert tortoise habitat, both stated goals of its Land Use Plan. 12-cv-8075, Doc. 30, ¶¶ 25-31.

Defendants argue that these environmental injuries are speculative because the County's declarations merely assert that increased mining revenues "could" be devoted to these purposes. The Court does not agree. The Coalition has presented evidence that improved air quality through the paving and maintenance of dirt roads and improved conservation efforts for the desert tortoise habitat are existing objectives in the County's written plans, (Doc. 188-6, ¶¶ 17, 19-21, 23-25); that the Coalition sought the NEPA-mandated dialogue with BLM to reconcile the Withdrawal decision with these existing County plans, ( id. at ¶¶ 29-30); and that the County will, as a result of the Withdrawal, experience a significant reduction in revenues that could be applied to all County objectives, including the existing environmental objectives, ( id. at ¶¶ 9-13). The Court does not find these injuries speculative or pretextual.

Nor is the Court persuaded by the government's contention that the County cannot assert its environmental interests in this case because it failed to assert them during the EIS process. Buster Johnson's declarations state that BLM did not allow local governments to submit supplemental economic data about how the Withdrawal would affect their communities, disregarded Mohave County's comprehensive plan and its environmental protections, and ignored notices and invitations from Coalition members demanding reconciliation of inconsistencies between the Withdrawal and their local plans and policies. Docs. 72-2 at 9-10; 188-6, ¶¶ 28-35. "Mohave County requested BLM to coordinate on land use as a way to resolve the inconsistencies and to minimize harm to its interests in managing roads and air quality, and being in a position to fund other land use and environmental projects, such as desert tortoise protection." Doc. 188-6, ¶ 28 (citing A.R. 56740, 56743-44). This evidence is sufficient to show that the Coalition raised issues within the NEPA zone of interests during the NEPA process. The Coalition has satisfied the zone of interests test and shown its standing to pursue claims under NEPA.

IV. NEPA Claims.

In light of these standing rulings, the Court will address the following NEPA claims brought by the Coalition: that BLM violated the NEPA requirements of adequate consultation with local governments (12-cv-8075, Doc. 30, ¶¶ 150-58), and that the FEIS failed to address scientific controversies including disputes regarding the impacts of uranium mining on water resources, the estimates of the uranium endowment, the amount and distribution of mineable uranium, and the adverse economic impacts of the Withdrawal on Arizona and its communities ( id. at ¶¶ 159-64). Although some of these arguments are addressed in NEI and NMA's motion for summary judgment, they were incorporated by reference in the Coalition's motion and raised in its complaint. The Court will not address NEI and NMA's arguments about BLM's alleged failure to consider adequate alternatives (Doc. 170 at 4-12) because the Coalition did not make that NEPA claim in its complaint (12-cv-8075, Doc. 30, ¶ 57).

A. Standard of ...


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