and Submitted December 15, 2016 San Francisco, California.
from the United States District Court for the District of
Arizona David G. Campbell, District Judge, Presiding D.C. No.
Richard W. Hughes (argued) and Reed C. Bienvenu, Rothstein
Donatelli LLP, Santa Fe, New Mexico, for Plaintiff-Appellant
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.
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.
J. DePippo (argued), Hunton & Williams LLP, Richmond,
Virginia; Michael K. Kennedy and Bradley J. Glass, Gallagher
& Kennedy P.A., Phoenix, Arizona; for
Biber, Professor of Law, Berkley Law, Berkeley, California,
for Amici Curiae Environmental and Natural Resource Law
Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges,
and Frederic Block, District Judge. [*]
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
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.
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. §
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.
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.
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.
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.
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.
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.
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 ...