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Tribe v. Provencio

United States Court of Appeals, Ninth Circuit

October 25, 2018

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 David G. Campbell, District Judge, Presiding D.C. No. 3:13-cv-08045-DGC

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

          Neil Levine (argued), Law Office of Neil Levine, Denver, Colorado; 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; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Nicholas L. Pino and Pamela P. Henderson, Attorneys; Stephen Alexander Vaden, Principal Deputy General Counsel; 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.

          Eric Biber, Professor of Law, Berkley Law, Berkeley, California, for Amici Curiae Environmental and Natural Resource Law Professors.

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

         SUMMARY [**]

         Mining Rights

         The panel withdrew the opinion filed December 12, 2017, and filed a new opinion that affirmed with one exception the district court's rejection of challenges to the determination by the United States Forest Service that Energy Fuels Resources (USA), Inc., and EFR Arizona Strip LLC had an existing right to operate a uranium mine on land around Grand Canyon National Park.

         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 and around Red Butte. In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), the court upheld the 2012 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. The withdrawal did not extinguish "valid existing rights." On April 18, 2012, the Forest Service issued a Mineral Report with findings; and based on those findings, the Forest Service concluded that Energy Fuels had a "valid existing right" to mine within the withdrawal area. The Havasupai Tribe and environmental groups challenged the determination.

         The panel rejected the Forest Service's argument that the court lacked jurisdiction. The panel held that the Forest Service's Mineral Report was a final agency action. The panel further held that the Mineral Report's conclusion that Energy Fuels had valid existing rights at the time of the withdrawal fell within the plain meaning of "recognition of a claim." 5 U.S.C. § 551(11)(B).

         The panel held that the environmental impact statement prepared in 1988 satisfied the National Environmental Policy Act. The panel further held that the district court properly applied Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013). As in that case, the original approval of the plan of operations in 1988 was a major federal action, and the resumed operation of Canyon Mine did not require any additional government action.

         The National Historical Preservation Act requires consultation pursuant to section 106 prior to any "undertaking." 54 U.S.C. § 306108. The panel held that Red Butte was not a "historic property" eligible for inclusion on the National Register until 2010, and as a result, the Act did not obligate the Forest Service to take the site into account when it conducted a full section 106 consultation in 1986. The panel further held that the current definition of "undertaking" did not encompass a continuing obligation to evaluate previously approved projects. The panel concluded that the 2012 Mineral Report was not an "undertaking" requiring consultation under the Act.

         The Federal Land Policy and Management Act of 1976 ("FLPMA") confers on the Secretary of the Interior authority to withdraw federal lands for specified purposes, but makes that authority "subject to valid existing rights." Plaintiffs challenged the merits of the Forest Service's conclusion that Energy Fuels had "valid existing rights" predating the withdrawal because its predecessors-in-interest had discovered a deposit of minable uranium ore. The district court looked to the General Mining Act of 1872 to make its valid existing rights determination. The panel held that the FLPMA, and not the Mining Act, formed the legal basis of plaintiff's claim that Canyon Mine should not be exempt from the withdrawal because the valid existing right determination was in error. The panel vacated the district court's judgment with respect to this claim, and remanded for consideration on the merits.

         ORDER

         Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED.

         The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.

          OPINION

          BLOCK, DISTRICT JUDGE

         In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), 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, with one exception, the district court's 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 ...


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