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Havasupai Tribe v. Provencio

United States Court of Appeals, Ninth Circuit

December 12, 2017

Havasupai Tribe, Plaintiff-Appellant,
v.
Heather Provencio, Forest Supervisor, Kaibab National Forest; United States Forest Service, an agency in the U.S. Department of Agriculture, Defendants-Appellees, and Grand Canyon Trust; Center for Biological Diversity; Sierra Club, Plaintiffs, Energy Fuels Resources (USA), Inc.; EFR Arizona Strip LLC, Intervenor-Defendants-Appellees. Grand Canyon Trust; Center for Biological Diversity; Sierra Club, Plaintiffs-Appellants, and Havasupai Tribe, Plaintiff,
v.
Heather Provencio, Forest Supervisor, Kaibab National Forest; United States Forest Service, an agency in the U.S. Department of Agriculture, Defendants-Appellees, Energy Fuels Resources (USA), Inc.; EFR Arizona Strip LLC, Intervenor-Defendants-Appellees.

          Argued and Submitted December 15, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Arizona D.C. No. 3:13-cv-08045-DGC David G. Campbell, District Judge, Presiding

          Richard W. Hughes (argued) and Reed C. Bienvenu, Rothstein Donatelli Hughes Dahlstrom Schoenburg & Bienvenu LLP, Santa Fe, New Mexico, for Plaintiff-Appellant Havasupai Tribe.

          Neil Levine (argued) and Aaron Paul, Grand Canyon Trust, Denver, Colorado; Marc Fink, Center for Biological Diversity, Duluth, Minnesota; Roger Flynn, Western Mining Action Project, Lyons, Colorado; for Plaintiffs-Appellants Grand Canyon Trust, Center for Biological Diversity, and Sierra Club.

          Thekla Hansen-Young (argued), Jared S. Pettinato, Michael T. Gray, and Andrew C. Mergen, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Nicholas L. Pino and Pamela P. Henderson, Office of General Counsel, United States Department of Agriculture; for Defendants-Appellees.

          David J. DePippo (argued), Hunton & Williams LLP, Richmond, Virginia; Michael K. Kennedy and Bradley J. Glass, Gallagher & Kennedy P.A., Phoenix, Arizona; for Intervenor-Defendants-Appellees.

          Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges, and Frederic Block, District Judge. [*]

         SUMMARY [**]

         Mining Claims

         The panel affirmed the district court's decision rejecting challenges by the Havasupai Tribe and three environmental groups to the determination of the United States Forest Service that Energy Resources (USA), Inc., and EFR Arizona Strip LLC, had a valid existing right to operate a uranium mine on land within a withdrawal area of public lands around Grand Canyon National Park that the Secretary of the Interior withdrew from new mining claims.

         In 1988, the Forest Service approved a plan to build and operate the Canyon Mine, a uranium mine in the area around Red Butte. Red Butte, a site of religious and cultural significance to the Tribe, is within the Kaibab National Forest and the withdrawal area. On April 18, 2012, the Forest Service issued a "Mineral Report" and concluded that Energy Fuel had valid existing rights that were established prior to the Secretary's withdrawal decision.

         As a threshold issue, the panel held that the Mineral Report was a final agency action.

         The panel held that the Mineral Report was a "major federal action" under the National Environmental Policy Act ("NEPA"). The panel held that the district court correctly held that Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013), not Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006), governed this case. The panel further held that the original approval of the mining plan of operations was a major federal action, that action was complete when the plan was approved, and resumed operation of Canyon Mine did not require any additional government action. The panel concluded that the environmental impact statement prepared in 1988 satisfied NEPA.

         The National Historic Preservation Act of 1966 requires consultation pursuant to section 106 prior to any "undertaking." The panel held that the Mineral Report approved an "undertaking" under the Act. The panel agreed with the district court that the Mineral Report did not permit, license, or approve resumed operations at Canyon Mine, it simply acknowledged the continued vitality of the original approval of the plan of operations. The panel concluded that the original approval was the only "undertaking" requiring consultation under the Act.

         Finally, the panel held that the appellant environmental groups did not have prudential standing to challenge the Mineral Report under either the Federal Land Policy and Management Act of 1976 or the General Mining Act of 1872.

          OPINION

          BLOCK, District Judge.

         In National Mining Association v. Zinke, ___ F.3d ___ (9th Cir. 2017), decided today, we upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. That withdrawal did not extinguish "valid existing rights." In these consolidated appeals, we consider challenges by the Havasupai Tribe ("the Tribe") and three environmental groups-Grand Canyon Trust, Center for Biological Diversity and Sierra Club (collectively, "the Trust")-to the determination of the United States Forest Service (the "Forest Service") that Energy Fuels Resources (USA), Inc., and EFR Arizona Strip LLC (collectively, "Energy Fuels") had a valid existing right to operate a uranium mine on land within the withdrawal area. As elaborated below, we affirm the district court's thorough and well-reasoned order rejecting those challenges.

         I

         Much of what we said in National Mining Association concerning the history of uranium mining in the area and the Secretary's withdrawal decision is also relevant here. To that we add some additional background regarding the particular mine at issue in this case.

         Grand Canyon National Park is bordered to the north and south by the Kaibab National Forest. The southern portion of the forest-which is included in the withdrawal area- contains Red Butte, a site of religious and cultural significance to the Tribe.

         In 1988, the Forest Service approved a plan to build and operate what became known as Canyon Mine, a 17.4-acre uranium mine in the area around Red Butte. During the approval process, the Forest Service prepared an Environmental Impact Statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"). NEPA requires an EIS for any "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

         At that time, the Forest Service also addressed the mine's impact under the National Historic Preservation Act of 1966 ("NHPA"). Section 106 of the NHPA requires federal agencies, prior to issuing a license for any "undertaking, " to "take into account the effect of the undertaking on any [historic property]." Pub. L. No. 89-665, § 106 (codified, as amended, at 54 U.S.C. § 306108). Historic property is defined as "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register." 54 U.S.C. § 300308. Based on its review, the Forest Service required mitigation measures to minimize the impact on possible relics buried on the site of the mine. The review did not include nearby Red Butte because that site was not eligible for inclusion on the National Register until 1992. See National Historical Preservation Act Amendments of 1992, Pub. L. No. 102-575, tit. XL, § 4006 (making "[p]roperties of traditional religious and cultural importance to an Indian tribe" eligible for inclusion on the National Register). The EIS, however, did address the tribal religious significance of Red Butte.

         The Tribe sought judicial review, but both the district court and this Court rejected the challenge. See Havasupai Tribe v. United States, 752 F.Supp. 1471 (D. Ariz. 1990), aff'd sub nom. Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991), cert. denied, 503 U.S. 959 (1992). The mine operator built surface facilities and sank the first fifty feet of a 1, 400-foot shaft, but placed the mine on "standby" status in 1992 due to the unfavorable conditions in the uranium market that we described in National Mining Association.

         As noted, the Secretary's withdrawal decision was "subject to valid existing rights." 77 Fed. Reg. 2563 (Jan. 18, 2012). A few months before the decision became final, Energy Fuels-which had become Canyon Mine's owner- notified the Forest Service that it intended to return the mine to active operations. At the Service's request, Energy ...


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