Havasupai Tribe v. Heather Provencio
906 F.3d 1155
9th Cir.2018Background
- In 1988 the U.S. Forest Service approved a plan of operations (PoO) and an EIS for the 17.4-acre Canyon Mine near Red Butte; construction began but the mine was placed on standby in 1992.
- In 2012 the Secretary of the Interior withdrew over one million acres around Grand Canyon from new mining claims for 20 years but preserved “valid existing rights.”
- Energy Fuels notified the Forest Service it intended to resume mining; the Forest Service issued a April 18, 2012 Mineral Report finding Energy Fuels had valid existing rights based on prior location/discovery and economic viability.
- The Forest Service’s June 2012 Mine Review concluded the 1988 PoO and EIS remained operative and no new NEPA/NHPA action was required to resume operations; it initiated consultation under 36 C.F.R. § 800.13(b)(3) after Red Butte became National Register-eligible.
- The Havasupai Tribe and environmental groups sued under the APA, alleging violations of NEPA, NHPA (section 106), FLPMA and the Mining Act; the district court rejected their NEPA/NHPA claims but declined to decide the FLPMA/Mining Act merits based on prudential standing.
- On appeal the Ninth Circuit affirmed the district court on NEPA and NHPA issues, held the Mineral Report was final agency action subject to review, and vacated/remanded the FLPMA-related valid-existing-rights claim for merits review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Forest Service Mineral Report a final agency action subject to APA review? | The Mineral Report had concrete legal effect and was the agency’s recognition of a claim, so it is final. | The Report was only an opinion; the BLM/Interior has the final say on mining rights, so no final agency action. | Mineral Report was final agency action and its recognition of rights fits §551(11)(B); jurisdiction proper. |
| Did the Mineral Report/VER determination constitute a "major federal action" requiring a new EIS under NEPA? | Resumption of mining is a new major federal action that requires updated NEPA analysis. | The original 1988 PoO and EIS were the major federal actions; resumption under the approved PoO does not change the status quo and needs no new EIS. | Followed Center for Biological Diversity v. Salazar: no new EIS required; 1988 EIS satisfied NEPA. |
| Did the Mineral Report constitute an "undertaking" under NHPA §106 requiring full consultation? | The VER determination and resumption implicate NHPA duties and require full section 106 consultation and reconsideration for Red Butte. | The Mineral Report merely acknowledged the existing PoO; the only undertaking was the 1988 approval (consultation completed then); §800.13(b)(3) applied to newly eligible Red Butte. | The Report was not a new undertaking; §800.13(b)(3) was the proper post-approval procedure and Forest Service's efforts satisfied NHPA. |
| Does the Trust have standing/zone-of-interests to challenge the VER determination under FLPMA or the Mining Act? | The Trust argued the VER finding was unlawful because the deposit wasn’t a valid economic discovery; its environmental interests fall within the relevant statutes. | The VER determination is governed by the Mining Act and the Trust’s environmental interests fall outside that Act’s zone of interests. | The Trust’s claim is properly viewed under FLPMA (withdrawal subject to valid existing rights); its environmental/aesthetic interests fall within FLPMA’s zone of interests. District court’s prudential-standing dismissal vacated and remanded for merits on FLPMA claim. |
Key Cases Cited
- National Mining Ass'n v. Zinke, 877 F.3d 845 (9th Cir. 2017) (upholding Interior’s Grand Canyon-area withdrawal and framing the withdrawal as subject to valid existing rights)
- Bennett v. Spear, 520 U.S. 154 (1997) (two-part test for agency action finality)
- Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) (resumption of operations under an approved plan is not a new NEPA major federal action)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own ambiguous regulation)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963) (division of roles in mining-rights determinations between agencies)