HAVASUPAI TRIBE, Plaintiff-Appellant, and Grand Canyon Trust; Center for Biological Diversity; Sierra Club, Plaintiffs, 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. 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.
No. 15-15857, 15-15754
United States Court of Appeals, Ninth Circuit.
December 12, 2017
876 F.3d 1242
Argued and Submitted December 15, 2016, San Francisco, California
Neil Levine (argued) and 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; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Nicholas L. Pino and Pamela P. Henderson, 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, Ari-
Before: MARSHA S. BERZON and MARY H. MURGUIA, Circuit Judges, and FREDERIC BLOCK, District Judge.*
OPINION
BLOCK, District Judge:
In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), decided today, 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 the district court‘s thorough and well-reasoned 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
At that time, the Forest Service also addressed the mine‘s impact under the
The Tribe sought judicial review, but both the district court and this Court rejected the challenge. See Havasupai Tribe v. United States, 752 F.Supp. 1471 (D. Ariz. 1990), aff‘d sub nom. Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991), cert. denied, 503 U.S. 959 (1992). The mine operator built surface facilities and sank the first fifty feet of a 1,400-foot shaft, but placed the mine on “standby” status in 1992 due to the unfavorable conditions in the uranium market that we described in National Mining Association.
As noted, the Secretary‘s withdrawal decision was “subject to valid existing rights.” 77 Fed. Reg. 2563 (Jan. 18, 2012). A few months before the decision became final, Energy Fuels—which had become Canyon Mine‘s owner—notified the Forest Service that it intended to return the mine to active operations. At the Service‘s request, Energy Fuels agreed not to resume sinking the mineshaft pending review of its claim of existing rights.
On April 18, 2012, the Forest Service issued a “Mineral Report.” It found that Energy Fuels’ predecessors-in-interest had “located” mining claims at the site in 1978 and “discovered” uranium ore there between 1978 and 1982. It further found that there were 84,207 tons of uranium ore on the site, and that “under present economic conditions, the uranium deposit on the claims could be mined, removed, transported, milled and marketed at a profit.” Based on those findings, the Forest Service concluded that Energy Fuel had “valid existing rights that were established prior to the mineral withdrawal.”
The Forest Service also reviewed its 1988 decision, including its EIS and the mine‘s approved plan of operations (“PoO“), “for any changes in laws, policies or regulations that might require additional federal actions to be taken before operations resume.” In a “Mine Review” dated June 25, 2012, it concluded that the existing PoO was “still in effect and no amendment or modification to the PoO is required before Canyon Mine resumes operations under the approved PoO.” It further concluded that “[n]o new federal action subject to further NEPA analysis is required for resumption of operations of the Canyon Mine.”
With respect to historic preservation, the Mine Review concluded that “there will be no new federal undertakings subject to NHPA Section 106 compliance.” It noted, however, that Red Butte had become eligible for inclusion on the National Register, and opined that the site “could be considered a newly ‘discovered’ historic property.” Applying the regulation applicable to such discoveries,
Consultation with the Tribe ended in March 2013, when the Tribe and the Trust jointly filed suit against the Forest Service
As amended, the complaint asserted four claims under the
- the Forest Service‘s determination that Energy Fuels had valid existing rights to operate the Canyon Mine notwithstanding the January 2012 withdrawal was a “major federal action significantly affecting the environment,” and, therefore, the service violated the NEPA by not preparing an EIS in connection with its determination;
- the Forest Service‘s determination was an “undertaking,” and, therefore, the service violated the NHPA by not conducting a full consultation under section 106 in connection with its determination;
- alternatively, the Forest Service violated the NHPA by not properly updating its original section 106 analysis to account for the impact on Red Butte; and
- the Forest Service violated several federal laws by failing to take various costs into account in its determination that Canyon Mine could be operated at a profit.
As relief, the plaintiffs sought a declaration that the Forest Service was acting in violation of the NEPA, the NHPA and other laws; an order setting aside any “approvals or authorizations” for operations at Canyon Mine; and an injunction prohibiting “any further uranium exploration or mining-related activities at the Canyon Mine unless and until the Forest Service fully complies with all applicable laws.”
The parties cross-moved for summary judgment. In an order dated April 7, 2015, the district court held (1) that the plaintiffs had Article III standing, (2) that the plaintiffs lacked prudential standing with respect to their fourth claim, and (3) that the Mineral Report—which the district court referred to as the “VER [Valid Existing Rights] Determination“—was a final agency action subject to review under the APA. See Grand Canyon Trust v. Williams, 98 F.Supp.3d 1044, 1055-61 (D. Ariz. 2015). Turning to the merits, the district court held (1) that the Mineral Report was not a “major federal action” requiring an EIS under the NEPA; (2) that the report was not an “undertaking” requiring a full section 106 consultation under the NHPA; (3) that the Forest Service‘s decision to consider the effect on Red Butte under
Both the Tribe and the Trust timely appealed.
II
The Forest Service argues that we lack jurisdiction because its determination that Energy Fuels has valid existing rights was not a final agency action. See Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 266 (9th Cir. 1990) (“‘[F]inal agency action’ is a jurisdictional requirement imposed by
“‘Agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act[.]”
The Forest Service claims that it has no authority to recognize mining rights, and that the Mineral Report represents only the agency‘s “opinion” as to their validity. But whether or not the Mineral Report was legally required, it was prepared. Its conclusion that Energy Fuels had valid existing rights at the time of the withdrawal falls within the plain meaning of “recognition of a claim.”
We further conclude that the Mineral Report was final. “As a general matter, two conditions must be satisfied for agency action to be ‘final[.]‘” Bennett v. Spear, 520 U.S. 154, 177 (1997). “First, the action must mark the consummation of the agency‘s decisionmaking process—it must not be of a merely tentative or interlocutory nature.” Id. at 177-78 (citation and internal quotation marks omitted). It is true that the final decision to contest a claim of existing rights rests with the Department of the Interior‘s Bureau of Land Management (“BLM“). See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963). If, however, the Forest Service finds a claim is valid, nothing else happens. The district court sensibly described that outcome as “the Forest Service‘s ‘last word’ on the validity of the Canyon Mine mineral rights,” Grand Canyon Trust v. Williams, 38 F.Supp.3d 1073, 1078 (D. Ariz. 2014), and we agree with that description.
In addition, to be final, “the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178 (internal quotation marks omitted). Rights to a mineral deposit on public land are not conferred by agency action; they are acquired by the miner‘s own actions of location and discovery. See American Law of Mining § 4.11 (2d ed. 1997) (“[The prospector] may seek ‘valuable minerals’ and, if he finds them, may initiate a vested right without the approval of anyone else, including representatives of the government that owns the land.“). Nevertheless, the Mineral Report determined that such rights existed with respect to Canyon Mine, and that is all Bennett requires.
We have observed that “courts consider whether the practical effects of an
III
The challenges to the merits of the district court‘s judgment raise three issues: (A) Was the Mineral Report a “major federal action” under the NEPA? (B) Did the Mineral Report approve an “undertaking” under the NHPA? (C) Did the Trust have prudential standing to challenge the Mineral Report under either the Federal Land Policy and Management Act of 1976 (“FLPMA“) or the General Mining Act of 1872 (“Mining Act“)? Our review of each question is de novo. See N. Cheyenne Tribe v. Norton, 503 F.3d 836, 845 (9th Cir. 2007) (compliance with NEPA and NHPA on summary judgment); Mills v. United States, 742 F.3d 400, 406 (9th Cir. 2014) (prudential standing).
A. NEPA
We have held that “where a proposed federal action would not change the status quo, an EIS is not necessary.” Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990). Nor is an EIS necessary to “discuss the environmental effects of mere continued operation of a facility.” Burbank Anti-Noise Grp. v. Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980). We applied those general principles in Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) (”CBD“).
At issue in CBD was the resumption of mining at a uranium mine, “after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988.” 706 F.3d at 1088. We held that “no regulation requires approval of a new plan of operations before regular mining activities may recommence following a temporary closure.” Id. at 1093. We further held that the original approval of the plan was a major federal action, but that “that action [wa]s completed when the plan [wa]s approved.” Id. at 1095 (quoting, with alterations, Norton v. S. Utah Wilderness All., 542 U.S. 55, 73 (2004)). By contrast, in Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006), we held that a lease extension was a major federal action that altered the status quo because without it, the lessee would not have been able to continue operating a power plant on the leased property. See id. at 784.
The district court correctly held that CBD, not Pit River, governs this case. As in CBD, the original approval of the plan of operations was a major federal action. And as in CBD, that action was complete when the plan was approved. Unlike Pit River, resumed operation of Canyon Mine did not require any additional government action. Therefore, the EIS prepared in 1988 satisfied the NEPA.
B. NHPA
As we explained, the NHPA requires consultation pursuant to section 106 prior to any “undertaking.”
The Tribe concedes that the approval process in 1986 included the necessary consultation, and that the cultural and religious impacts on Red Butte were not included because they were not required to be at that time. It argues, however, that the NHPA imposes a continuing obligation on federal agencies to address the impact on historic property at any stage of an undertaking.
The statutory definition of “undertaking” dates from 1992. Prior to that, it was defined by the Advisory Council on Historic Preservation (“ACHP“), the agency charged with implementing the NHPA, to include “continuing projects, activities, or programs and any of their elements not previously considered under section 106.”
Although continuing obligations have been removed from the definition of “undertaking,” they remain in
If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process ..., the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties and:
(1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve adverse effects pursuant to § 800.6; or ...
(3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve adverse effects, and notify the [state or tribal historical office], any Indian tribe ... that might attach religious and cultural significance to the affected property, and the [Advisory Council on Historic Preservation] within 48 hours of the discovery. The notification shall describe the agency official‘s assessment of National Register eligibility of the property and proposed actions to resolve the adverse effects. The ... Indian tribe ... and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out appropriate actions. The agency official shall provide the ... Indian tribe ... and the Council a report of the actions when they are completed.
As noted, the Forest Service concluded that this regulation applied to Canyon Mine. It further concluded that subsection (3) applied because construction had begun in the early 1990s, although it acknowledged that the 20-year hiatus presented a “somewhat unusual situation.”
The Tribe further argues that if
Canyon Mine fits squarely within the scope of subsection (3). The mine was approved in 1988, and construction of the surface facilities began shortly thereafter. The Tribe argues that subsection (3) was intended to address emergency situations, but there is no express limitation to such situations.4
Finally, the Tribe briefly argues that the Forest Service did not comply with
C. FLPMA and Mining Act
The plaintiffs’ fourth claim, advanced by the Trust, challenged the merits of the Forest Service‘s conclusion that Energy Fuels had valid existing rights predating the withdrawal because (1) its predecessors-in-interest had discovered uranium ore on the site of Canyon Mine, and (2) the deposit “could be mined, removed, transported, milled and marketed at a profit.” The district court did not address this claim, instead holding that the Trust
The APA imposes “a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that the plaintiff have suffered an injury in fact.” Nat‘l Credit Union Admin. v. First Nat‘l Bank & Trust Co., 522 U.S. 479, 488 (1998). Thus, “a person suing under the APA must satisfy not only Article III‘s standing requirements, but an additional test: The interest he asserts must be arguably within the zone of interests to be protected or regulated by the statute that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (internal quotation marks omitted).5 On appeal, the Trust argues that its interests fall within the zone of interests protected by the FLPMA and the Mining Act.
We described the FLPMA at length in National Mining Association. The withdrawal authority conferred by the statute can be exercised “in order to maintain other public values.”
The Mining Act confers rights based on the existence of “valuable mineral deposits.”
The interests served by the Mining Act in general, and the prudent man and marketability tests in particular, are frankly economic. “The obvious intent” of the Act, the Supreme Court has said, “was to reward and encourage the discovery of minerals that are valuable in an economic sense.” Id. At its core, then, the Mining Act confers rights on those who have an economically defined interest in extracting a resource from public lands.
By defining that right, however, the Act also at least arguably protects the interests of others with competing claims: rival prospectors, of course, but also the United States, which holds title to the land and can authorize others to use it for other purposes to the extent it does not interfere with mining. See United States v. Curtis-Nev. Mines, Inc., 611 F.2d 1277, 1283 (9th Cir. 1980) (purpose of the
At bottom, the Mining Act protects those with competing interests in public land that are, or are akin to, property rights. The environmental interests of the Trust are protected by the NEPA, just as the cultural and religious interests of the Tribe are protected by the NHPA. Since, however, those interests do not derive from anything like a property right, they are outside the Mining Act‘s zone of interests. As the district court aptly reasoned, “‘The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions.’ This case presents the same situation in reverse[.]” Grand Canyon Trust, 98 F.Supp.3d at 1059 (quoting Nev. Land Action Ass‘n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)). As a result, the Tribe and the Trust lack prudential standing to claim violations of the Mining Act.
IV
The judgment of the district court is AFFIRMED.
FREDERIC BLOCK
UNITED STATES DISTRICT JUDGE