and Submitted December 15, 2016 San Francisco, California
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
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.
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
J. DePippo (argued), Hunton & Williams LLP, Richmond,
Virginia; Michael K. Kennedy and Bradley J. Glass, Gallagher
& Kennedy P.A., Phoenix, Arizona; for
Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges,
and Frederic Block, District Judge. [*]
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.
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.
threshold issue, the panel held that the Mineral Report was a
final agency action.
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
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.
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.
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.
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.
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
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. §
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.
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.
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,