United States District Court, D. Arizona
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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, 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: Jared S Pettinato, LEAD ATTORNEY, U.S. Dept of Justice, Washington, DC.
For Energy Fuels Resources (USA) Incorporated, EFR Arizona Strip LLC, Intervenors: Bradley Joseph Glass, Michael K Kennedy, LEAD ATTORNEYS, Gallagher & Kennedy PA, Phoenix, AZ; David J DePippo, David J DePippo, LEAD ATTORNEYS, Hunton & Williams - Richmond, VA, Richmond, VA.
David G. Campbell, United States District Judge.
The parties have filed cross-motions for summary judgment. Docs. 140, 146, 147. The motions are fully briefed and the Court heard oral argument on March 18, 2015. For the reasons stated below, Defendants' and Defendant-Intervenors' motions for summary judgment will be granted and Plaintiffs' motion for summary judgment will be denied.
Plaintiffs include the Havasupai Tribe and various environmental groups: Grand Canyon Trust, Center for Biological Diversity, and the Sierra Club. Defendants are the United States Forest Service; Michael Williams, Supervisor of the Kaibab National Forest; and Intervenors Energy Fuels Resources (USA), Inc. and EFR Arizona Strip, LLC.
This case arises out of the proposed renewal of operations at the Canyon Mine in Northern Arizona. The Canyon Mine is a breccia pipe uranium mine located six
miles south of Grand Canyon National Park, in the Kaibab National Forest, and four miles north of Red Butte, a culturally and religiously significant site for the Havasupai and other tribes. Doc. 115 ¶ ¶ 2, 49.
In October 1984, Energy Fuels Nuclear, Inc. (" EFN" ) submitted to the Forest Service a proposed Plan of Operations for the Canyon Mine (the " Plan" ). A.R. 193-221. Pursuant to the National Environmental Policy Act (" NEPA" ), the Forest Service completed an Environmental Impact Statement (" EIS" ) to address the potential environmental impacts to the area and considered input from federally recognized Indian tribes. A.R. 461-693. On September 26, 1986, the Forest Service issued a Record of Decision (" ROD" ) approving a modified version of the Plan. A.R. 915-29. Several administrative appeals followed (A.R. 3932), and the Deputy Regional Forester and Chief of the Forest Service both affirmed the ROD.
The Havasupai Tribe filed a federal court lawsuit challenging approval of the Canyon Mine. See Havasupai Tribe v. United States, 752 F.Supp. 1471 (D. Ariz. 1990). Among other arguments, the tribe claimed that the EIS failed to comply with NEPA. Following a thorough analysis of the EIS, the ROD, and the administrative record, the District Court granted summary judgment in favor of the Forest Service. Id. at 1489-1505. The Ninth Circuit affirmed in August of 1991. See Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991).
Shortly thereafter, EFN began constructing the mine. EFN built access roads, storage buildings, a power line, a perimeter fence, diversion structures, a holding pond, a head frame and hoist, and support buildings. A.R. 10487; Doc. 146-1 at 17; Hangan Declaration, Doc. 53-4, ¶ 4. Work on the mine shaft was started, and proceeded to a depth of 50 feet. A.R. 10487. When uranium prices fell in 1992, EFN placed the mine on stand-by status. For the next several years the mine was maintained under the interim management portions of the Plan. A.R. 10314.
In 2010, the Forest Service designated Red Butte and the surrounding area, including the location of the Canyon Mine, as a Traditional Cultural Property (" TCP" ), thereby making it eligible to be included in the National Register of Historic Places due to its " ongoing, and historic cultural and religious significance to multiple tribes." A.R. 10616.
In January 2012, the Secretary of the Department of the Interior (" DOI" ), pursuant to the Federal Land Policy and Management Act (" FLPMA" ), 43 U.S.C. § 1714(a), withdrew 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 (the " Withdrawal" ). 77 Fed.Reg. 2317-01 (Jan. 17, 2012); A.R. 10308-31. The Withdrawal, which included the location of the Canyon Mine, had been proposed by DOI in 2009. 74 Fed.Reg. 35,887-01 (July 21, 2009). The DOI
undertook extensive study and preparation of an EIS before finalizing the Withdrawal. The final EIS noted the existence of the Canyon Mine and stated its assumption that the mine would continue operations. A.R. 8657.
In August 2011, Energy Fuels Resources (USA), Inc. (" Energy Fuels" ), a successor owner of the Canyon Mine, notified the Forest Service that it intended to resume operations under the Plan approved in 1986. A.R. 8547. In response, the Forest Service decided to complete a valid existing rights determination (" VER Determination" ) with respect to the Canyon Mine. The purpose of the VER Determination was to confirm that the owner had valid rights to the uranium mineral deposits. Although Energy Fuels had asserted in its initial letter to the Forest Service that it did not believe any additional government approvals were required before the mine reopened (A.R. 443), Energy Fuels agreed to withhold shaft sinking until the VER Determination was complete (Doc. 123-2 at 2-3). The VER Determination was finished on April 18, 2012, and found that Energy Fuels had valid existing mineral rights at the Canyon Mine. A.R. 10483-528.
The Forest Service also undertook a " Mine Review." A.R. 10592-637. The review was conducted by a 13-person interdisciplinary team with expertise in minerals and geology, surface and groundwater, air quality, transportation, tribal consultation, heritage resources, vegetation, NEPA, and socioeconomic issues. A.R. 10597. Among other matters, the team evaluated the sufficiency of the Plan and the original EIS and ROD; historical and religious issues related to local tribes, including tribal consultation in connection with the EIS and ROD; sensitive tribal sites, including Red Butte; the effect of resumed operations on the quality of air, surface water, and groundwater; and the effect of resumed mine operations on wildlife and any threatened, endangered, or sensitive species. A.R. 10592-637.
The Mine Review was completed on June 25, 2012, and concluded that operations could resume at the Canyon Mine under the original Plan. The Mine Review made this finding:
[T]he Forest [Service] undertook a review of the 1986 Environmental Impact Statement and Record of Decision, and associated documents. Resource specialists from the Kaibab National Forest and Southwestern Regional Office reviewed the documents to determine if any modification or amendment of the existing Plan of Operations was required and whether there was any new information or changed circumstances indicating unforeseen significant disturbance of surface resources. It was determined that no amendment or modification of the Plan of Operation was required. . . . Therefore, [Energy Fuels] will resume operations under the existing Plan of Operations.
Upon learning that the mine would be reopened, the Arizona State Historic Preservation Office (" AZSHPO" ) advised the Forest Service that it should undertake a full consultation under § 106 of the National Historic Preservation Act (" NHPA" ), 16 U.S.C. § 470f. A.R. 10139. Section 106 requires a federal agency charged with issuing a federal license for an " undertaking" to consult with various interested parties and evaluate the potential
effects on TCPs, including identification of the affected properties, a determination of the potential adverse effects to the properties, and an identification of methods of mitigation. 36 C.F.R. § § 800.2-800.7.
The Mine Review concluded that a full § 106 process was not necessary. A.R. 10593-637. Instead, the Forest Service undertook a reduced consultation process under 36 C.F.R. § 800.13(b)(3). The Forest Service sent letters to tribal leaders as well as the Advisory Council on Historic Preservation (" ACHP" ), notifying them of renewed operations at the Canyon Mine and offering to meet and discuss potential adverse effects to the environment and areas of religious and cultural significance. A.R. 10690-91. The tribes and the ACHP urged the Forest Service to undertake a full § 106 review, but the Forest Service declined. A two-day consultation meeting was held with the tribes in January 2013.
Plaintiffs filed this lawsuit on March 7, 2013, seeking declaratory and injunctive relief under the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706. Doc. 1. Plaintiffs' amended complaint alleges four claims: (1) the Forest Service violated NEPA by not conducting an EIS in connection with the VER Determination; (2) the Forest Service violated the NHPA by failing to complete a full § 106 review prior to approving resumed operations at the Canyon Mine; (3) the Forest Service violated the NHPA by conducting a review under § 800.13(b)(3); and (4) the VER Determination failed to consider all relevant cost factors and therefore is arbitrary, capricious, and not in accordance with the law. All parties move for summary judgment.
II. Standard of Review.
The APA allows a court to compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1). A claim to compel action may proceed " only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original); see Hells Canyon Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010).
A court may set aside a final agency action under the APA only if it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). " This standard of review is 'highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.'" Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). The APA does not allow a court to overturn an agency action simply because the court disagrees with the action. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010).
III. Was the VER Determination Required?
Plaintiffs argue that the VER Determination was required by law because of the Withdrawal, and therefore constituted " agency action" reviewable under the APA, a " major federal action" that triggered NEPA, and an approval of a new " undertaking" that triggered § 106 review under the NHPA. Because the nature of the VER Determination affects so many issues in this case, the Court will address it before considering other arguments made in the summary judgment briefing.
A. Nature of the VER Determination.
The purpose of the VER Determination was to evaluate whether the owners of the
Canyon Mine had valid legal rights to the uranium ore they would be mining. As part of the Determination, certified mineral examiners employed by the Forest Service visited the mine site, reviewed mining claims records, evaluated ore deposits, toured facilities operated by the owner, and conducted an economic evaluation of the mine. A.R. 10482-527. The examiners concluded that the mining claims " were valid at the time of the [Withdrawal] and continue to be valid at the present time." A.R. 10482.
The Forest Service completed the VER Determination before approving renewed operations at the Canyon Mine, but the determination itself had no binding legal effect. The Forest Service does not have responsibility for determining the validity of mining claims on federal lands. That responsibility has been delegated to the DOI, and specifically to the Bureau of Land Management (" BLM" ) within the DOI (the Forest Service is in the Department of Agriculture). The DOI, not the Forest Service, has adjudicative authority to declare mining claims valid or invalid. Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 64 L.Ed. 659 (1920) (Secretary of Interior charged with determining validity of mining claims); Forest Service Manual (" FSM" ) § 2814.11 (A.R. 7284).
Because the Forest Service supervises vast stretches of federal land that include mining operations, however, it can perform VER Determinations under an interagency agreement with BLM. FSM § 2814.11 (A.R. 7284); Linden Declaration, Doc. 53-2, ¶ 6. These determinations are made for internal purposes. As the First Service Manual explains, they enable the Forest Service to make " a decision on whether or not to contest the claim." FSM § 2819.1 (A.R. 7312). But the actual claim contest must be adjudicated by BLM and the DOI. FSM § § 2814.11, 2819.1 (A.R. 7284, 7312). As the Forest Service Manual confirms: " No adjudicative power has been given to the Forest Service. Thus, statements about validity [of mining claims] are statements of belief and not formal determinations." FSM § 2819 (A.R. 7311).
Plaintiffs do not dispute these basic facts. They argue, however, that things changed when the land on which the Canyon Mine is located was withdrawn by the Secretary of the Interior. They argue that the Withdrawal, not statutes or regulations governing mining generally, required that a VER Determination be completed before the Canyon Mine could resume operations.
B. Legal Effect of the Withdrawal.
The Withdrawal affected more than one million federally-owned acres north and south of the Grand Canyon, closing them to mineral location and entry for a period of 20 years. 77 Fed.Reg. 2317-01 (Jan. 17, 2012); A.R. 10308-31. The Withdrawal did not prohibit all uranium mining on the withdrawn lands. Rather, it prohibited " location and entry," which is the process by which an individual enters public lands to find and establish a valid mining claim. Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 750 n.3, 375 U.S.App.D.C. 110 (D.C. Cir. 2007).
Prior to the Withdrawal, the lands were open for location and entry. The Mining Law of 1872 provides that " all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase[.]" 30 U.S.C. § 22. Individuals can enter federal land, explore for minerals, and stake their right to a claim by " [e]stablishing the exterior lines of a mining claim or site" and " [r]ecording a notice or certificate of location." 43 C.F.R. § 3832.1. Such claims can then become the subject of proposed plans for the operation of a mine. The Withdrawal
removed the land from this open exploration and claim process and thereby foreclosed the establishment of new mining claims in the future.
The Withdrawal did not extinguish mining rights that already existed. To the contrary, it was " subject to valid existing rights." A.R. 10310. This means that existing mines like the Canyon Mine could continue to operate. Indeed, the Withdrawal's EIS specifically contemplated that four uranium mines, including the Canyon Mine, would continue in operation. A.R. 10314 (" There are four mines within the withdrawal area that have approved plans of operations that predate the Secretary's withdrawal proposal. The Pinenut, Kanab North, and Canyon mines were approved in the late 1980s and are operating under the interim management plans[.]" ).
The Withdrawal also contemplated that claim owners with valid existing rights at the time of the Withdrawal, but no operating mine, could submit a plan of operation for a uranium mine for approval:
Withdrawals under section 204 of the FLPMA must be made subject to valid existing rights, which means that new mineral exploration and development could still be authorized under the withdrawal on valid existing mining claims. The . . . scenarios developed for the EIS indicate that potentially 11 mines could develop with a full withdrawal, including the four mines currently approved[.]
The Withdrawal also addressed when VER Determinations would be required. It stated that new plans of operations would be approved only if BLM or the Forest Service first determined that the parties submitting the plans had valid existing mineral rights at the time of the Withdrawal:
On withdrawn lands, neither the BLM nor the Forest Service will process a new. . . plan of operations until the surface managing agency conducts a mineral examination and determines that the mining claims on which the surface disturbance would occur were valid as of the date the lands were . . . withdrawn.
Id. (emphasis added).
This is consistent with relevant regulations and guidance documents. BLM regulations specifically address the rules that apply to withdrawn lands. They state that, after the date of a withdrawal, " BLM will not approve a plan of operations . . . until BLM has prepared a mineral examination report." 43 C.F.R. § 3809.100(a) (emphasis added). They do not suggest that a VER Determination is required for an already-approved plan of operations.
Section 8.1.5 of the BLM Surface Management Handbook addresses previously approved plans:
[A]pproved Plans of Operations that were in place prior to the withdrawal or segregation date are not subject to the mandatory valid existing rights determination procedures at 43 C.F.R. 3809.100(a). These operations may continue as accepted or approved and do not require a validity determination unless or until there is a material change in the activity. . . .
This guidance comes from BLM, not the Forest Service. But as noted above, BLM is the primary agency responsible for determining mining claim validity, and its parent, DOI, is the agency that withdrew the lands at issue in this case. The guidance of BLM on the effect of the Withdrawal is therefore highly relevant. In addition, when the Forest Service was asked in a public forum whether it had regulations specifying when a VER Determination would be required on withdrawn lands, it provided this answer: