Havasupai Tribe v. Heather Provencio
876 F.3d 1242
| 9th Cir. | 2017Background
- In 1988 the Forest Service approved a plan of operations (PoO) and prepared an EIS for the Canyon Mine, a uranium mine near Red Butte in Kaibab National Forest; surface facilities were built and initial shaft work begun but mining went on hiatus in 1992.
- Red Butte is a site of religious and cultural significance to the Havasupai Tribe; it was not eligible for the National Register until statutory amendments in 1992 and later recognition.
- In 2012 the Secretary of the Interior issued a 20-year withdrawal of lands around Grand Canyon from new mining claims, "subject to valid existing rights." Energy Fuels asserted it had valid existing rights to resume Canyon Mine operations.
- The Forest Service issued a 2012 Mineral Report (Valid Existing Rights determination) finding Energy Fuels’ predecessors had located claims, discovered ore, and that the deposit was marketable/profitable; a subsequent Mine Review concluded the 1988 PoO remained in effect and no new NEPA action was required.
- Plaintiffs (Havasupai Tribe and environmental groups) sued under the APA claiming the Mineral Report (1) required an EIS under NEPA, (2) was an "undertaking" requiring NHPA §106 consultation, (3) failed to update NHPA analysis for Red Butte, and (4) improperly assessed marketability; the district court rejected these claims and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of Mineral Report for APA review | Mineral Report is an agency recognition that determined rights and thus is final | Report was only advisory/opinion; BLM makes final determination | Mineral Report was final agency action (practical/legal effects; last word for Forest Service) |
| NEPA: Did Mineral Report require a new EIS? | Resumption after hiatus is a new major federal action requiring NEPA analysis | Original 1988 PoO and EIS were the major federal action; resumption does not change status quo | CBD governs; original approval was the major federal action and was complete in 1988; no new EIS required |
| NHPA §106: Is Mineral Report an "undertaking" requiring fresh consultation? | Mineral Report triggered continuing obligation to consult about new National Register-eligible Red Butte | Mineral Report merely acknowledged existing PoO; the 1988 approval was the relevant undertaking; agency complied via §800.13(b) process | Mineral Report was not a new undertaking; §800.13(b)(3) process was reasonably applied and Forest Service made good-faith efforts to consult |
| Prudential standing (Trust) to challenge marketability/Mining Act & FLPMA-based validity | Trust’s environmental interests fall within the FLPMA/Mining Act zone of interests | Mining Act/marketability doctrine protect economic/property interests; environmental harms are addressed under NEPA/NHPA | Trust lacks prudential standing under FLPMA/Mining Act; those statutes protect economic/property interests, not the Trust’s environmental interests |
Key Cases Cited
- Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) (resumption of mining under an existing PoO does not require a new NEPA EIS when original approval was the major federal action)
- Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) (lease-extension that changes status quo can be a major federal action requiring NEPA review)
- Bennett v. Spear, 520 U.S. 154 (1997) (two-part test for final agency action under the APA)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115 (9th Cir. 1980) (continued operation of a facility may not require a new EIS)
- United States v. Coleman, 390 U.S. 599 (1968) (discusses prudent-man and marketability tests for mining claims)
- Chrisman v. Miller, 197 U.S. 313 (1905) (historical endorsement of the prudent-man test for mining claims)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency deference to reasonable interpretations of its own regulations)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (completion of a prior major federal action can render later activity not a new major federal action)