National Mining Association v. Ryan Zinke
877 F.3d 845
9th Cir.2017Background
- In 2012 the Secretary of the Interior issued a Record of Decision withdrawing ~1,006,545 acres near Grand Canyon National Park from new uranium mining claims for up to 20 years; withdrawal built on a BLM EIS and a 2010 USGS scientific report.
- Withdrawal rationales: protect Grand Canyon watershed/Colorado River from potential uranium/arsenic contamination; protect tribal cultural and sacred sites; protect visual and wildlife resources; allow limited mining under valid existing rights so local economic harm would be muted.
- Multiple plaintiffs (mining groups, local governments, an individual claimant) sued, challenging FLPMA’s legislative-veto provision and the legality of the withdrawal under FLPMA, NEPA, the Establishment Clause, and the Forest Service’s consent; district court upheld withdrawal but struck the legislative veto as unconstitutional and severed it.
- On review, the Ninth Circuit addressed standing to raise severability, severability of FLPMA’s legislative veto, and the APA/NEPA/constitutional challenges to the withdrawal decision; standard of review: arbitrary-and-capricious review under the APA.
- Administrative record: USGS sampled 1,014 water samples (428 sites) and found exceedances of contaminants at multiple sites; acknowledged important hydrologic uncertainties (groundwater flow, breccia-pipe connectivity) but concluded sufficient evidence existed to support a precautionary withdrawal and further study during the withdrawal term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutional validity of FLPMA’s legislative veto (§ 1714(c)(1)) and effect on Secretary’s withdrawal authority | Legislative veto is unconstitutional and not severable from the large-tract withdrawal delegation, so the Secretary lacks authority to make 20-year withdrawals | Legislative veto is unconstitutional but severable; remaining statutory scheme (reporting, notice, time limit, consent, delegation limits) supports independent withdrawal authority | Veto violates presentment requirement (Chadha) but is severable; Secretary retains large-tract withdrawal authority |
| APA challenge: whether withdrawal was arbitrary and capricious given uncertain science about groundwater contamination | Record does not justify a large-tract withdrawal because the science is inconclusive and risk is low; agency overstated contamination risk | Record (USGS, EIS, public comments) provided a reasoned basis for a precautionary decision given uncertainty and potential high-consequence impacts | Affirmed — agency’s decision was reasonable, considered uncertainties, weighed evidence, and was not arbitrary or capricious |
| FLPMA scope: authority to withdraw for protection of cultural/tribal resources and multiple-use requirement | Secretary lacked authority to withdraw broad tracts to protect tribal/cultural interests; withdrawal conflicts with multiple-use/sustained-yield mandates | FLPMA contemplates protection of historical/archeological values; multiple-use permits management choices that preserve certain resources and does not mandate maximizing mining | Affirmed — withdrawal permissible to protect cultural resources; agency balanced multiple uses consistent with FLPMA |
| NEPA and consultation: adequacy of EIS given missing information and coordination with counties; Forest Service consent challenged under NFMA/forest plan | EIS ignored ‘‘essential’’ missing hydrogeologic information; agency failed to coordinate or reconcile with county plans; Forest Service consent violated NFMA/Kaibab plan | EIS identified incomplete information, summarized available science, and concluded missing data non-essential to decision; agency cooperated with counties; Forest Service need only consent (it lacks authority to close lands to mining) and consent was consistent with its role | Affirmed — NEPA requirements satisfied (agency justified non-essential status of missing data and adequately consulted); Forest Service consent lawful and not inconsistent with plan |
Key Cases Cited
- INS v. Chadha, 462 U.S. 919 (1983) (one-house or legislative veto violates the Presentment Clause and bicameralism requirement)
- United States v. Midwest Oil Co., 236 U.S. 459 (1915) (historical executive practice of temporary withdrawals gave rise to implied executive authority prior to FLPMA)
- Buckley v. Valeo, 424 U.S. 1 (1976) (severability and legislative intent principles)
- Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010) (sever severable unconstitutional provisions where appropriate)
- United States v. Booker, 543 U.S. 220 (2005) (three-part severability inquiry: valid, independent functioning, consistent with congressional objectives)
- Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) (severability clause creates presumption in favor of severance)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency interpretations of statutes are owed deference when ambiguous)
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (Establishment Clause test: purpose, effect, entanglement)
- Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (limits on Free Exercise claims when government manages its own land)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (administrative review must not substitute court judgment for agency's; arbitrary-and-capricious standard principles)