Ctr. for Biological Diversity v. Salazar

• Decision Date: 04 February 2013
• Docket Number: No. 11–17843.,11–17843.
• Citation: 706 F.3d 1085
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Grand Canyon Trust; Sierra Club; Kaibab Band of Paiute Indians; Havasupai Tribe, Plaintiffs–Appellants, v. Ken SALAZAR, Secretary of the Interior; United States Bureau of Land Management, Defendants–Appellees, and Denison Arizona Strip, LLC; Denison Mines (USA) Corp., Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

706 F.3d 1085

CENTER FOR BIOLOGICAL DIVERSITY; Grand Canyon Trust; Sierra Club; Kaibab Band of Paiute Indians; Havasupai Tribe, Plaintiffs–Appellants,

v. Ken SALAZAR, Secretary of the Interior; United States Bureau of Land Management, Defendants–Appellees,andDenison Arizona Strip, LLC; Denison Mines (USA) Corp., Intervenor–Defendants–Appellees.

No. 11–17843.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 18, 2012.

Filed Feb. 4, 2013.

Neil Levine (argued), Grand Canyon Trust, Denver, CO; Amy Rae Atwood, Center for Biological Diversity, Portland, OR; Roger Flynn, Western Mining Action Project, Lyons, CO, for Appellants.

Ignacia S. Moreno, Mark R. Haag (argued), Environmental & Natural Resources Division, United States Department of Justice, Washington, DC; John L. Gaudio, United States Department of the Interior, Office of the Solicitor, Phoenix, AZ, for Federal Appellees.

Michael K. Kennedy (argued), Bradley J. Glass, David J. DePippo, Gallagher & Kennedy, P.A., Phoenix, AZ, for Intervenor–Appellees.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. 3:09–cv–08207–DGC.

Before: J. CLIFFORD WALLACE and CARLOS T. BEA, Circuit Judges, and JANE A. RESTANI, Judge.^*

OPINION

WALLACE, Senior Circuit Judge:

Appellants Center for Biological Diversity, Grand Canyon Trust, Sierra Club, Kaibab Band of Paiute Indians, and Havasupai Tribe contend that Appellees Ken Salazar, Secretary of the Interior, and the U.S. Bureau of Land Management (collectively, BLM) violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq., and its own regulations, 43 C.F.R. § 3809, et seq., by permitting Denison Mines Corp. and Denison Arizona Strip, LLC (collectively, Denison) to restart mining operations at the Arizona 1 Mine in 2009, after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

The Arizona 1 Mine is a uranium mine located in Mohave County, Arizona, thirty-five miles southwest of Fredonia, Arizona, and six and one-half miles north of Grand Canyon National Park. The history of the mine goes back nearly three decades. In 1984, Energy Fuels Nuclear, Inc. submitted to BLM a plan for uranium exploration activities on mining claims it owned in Mohave County, Arizona. On October 4, 1984, BLM approved the exploration plan. Four years later, in 1988, Energy Fuels submitted to BLM a plan of operations to develop and operate a portion of its mining claims as the Arizona 1 Mine.

BLM reviewed the proposed plan of operations, took into account public sentiment, and prepared an environmental assessment of the mining activities' impact. After a detailed review, on May 9, 1988, BLM approved the plan, determining that the proposed mining operations at the Arizona 1 Mine would not “cause any undue or unnecessary degradation of public lands” or “significantly affect the quality of the human environment.” The plan of operations complied with the regulations found in 43 C.F.R. § 3809 (the section 3809 regulations) then in effect. Important here, the plan of operations contained a portion governing the interim management of the Arizona 1 Mine “in the event of an ‘extended period of non-operation before mining is completed.’ ” Such a shutdown, the interim management portion of the plan stated, was, though unanticipated, a “possibility.”

Once the plan of operations was approved, Energy Fuels actively developed the Arizona 1 Mine until a severe drop in uranium prices made mining at the site economically unjustifiable. As a result, Energy Fuels ceased mining activities at the Arizona 1 Mine in 1992 and placed the mine on “standby and interim management status.” In May 1997, while mining operations remained on hold, International Uranium Corporation, USA, acquired the Arizona 1 Mine. In 2007, International Uranium merged with Denison.

During the period following the cessation of mining activities at the Arizona 1 Mine, Energy Fuels, International Uranium, and later Denison, followed the interim management portion of the 1988 plan of operations. Among other things, the companies maintained buildings, mine shafts, gates, fences, and signage for the mine. The companies also maintained a surety bond for reclamation and paid utilities, property taxes, BLM maintenance fees, and insurance premiums. Additionally, the companies sent employees and contractors to the mine to ensure that the mine complied with the 1988 plan of operations. Likewise, throughout the interim period, BLM conducted field inspections at the Arizona 1 Mine, which consisted primarily of perimeter inspections as the mine gate remained locked during the interim period.

In 2007, Denison advised BLM of its intention to restart mining operations at the Arizona 1 Mine. In preparation for the recommencement of mining operations, Denison obtained current Aquifer Protection and Air Quality Control permits from the State of Arizona. Additionally, Denison updated its financial guarantee with the Arizona Department of Environmental Equality and the BLM. To update its financial guarantee, BLM asked Denison to submit a revised reclamation bond estimate, in accordance with a 2000 regulation amending the level of financial guarantee required, see43 C.F.R. § 3809.505, to cover the reclamation costs outlined in the 1988 plan of operations. Denison submitted a revised bond estimate to BLM. BLM checked that figure using its cost-estimation software and concluded that Denison had overestimated the amount of bond necessary. BLM accepted Denison's overestimate, requiring a bond of $377, 800.

Denison also obtained a “Permit to Use Right–of–Way” from Mohave County to perform needed improvements and maintenance on Mount Trumbull Road, itself a right-of-way that BLM had granted Mohave County some years earlier. Mount Trumbull Road provides Denison employees access to the Arizona 1 Mine and is therefore important to the mine's operation. The road also provides the public access to recreation areas in the region. Prior to Mohave County appointing Denison as its agent to maintain the Mount Trumbull Road, the County obtained a “Free Use Permit”—at Denison's urging—to extract a certain amount of gravel from the Robinson Wash to maintain the Mount Trumbull Road. BLM determined that issuance of the gravel permit fell within a categorical exclusion to NEPA and determined that “no extraordinary circumstances potentially having effects that may significantly affect the environment” existed meriting more exhaustive environmental analysis. Accordingly, no further NEPA analysis took place before BLM issued the “Free Use Permit” to Mohave County. With these measures taken, Denison resumed mining operations in December 2009.

Before mining resumed in full, in November 2009, Appellants filed their initial complaint against BLM, arguing that Denison could not begin operations under the 1988 plan of operations because the seventeen-year cessation of mining activities rendered that plan ineffective. Months later, in April 2010, Appellants moved for a preliminary injunction to prevent Denison from operating the Arizona 1 Mine. The district court denied the motion for preliminary injunction, holding that the 1988 plan of operations had not become ineffective and that BLM did not have to prepare a supplemental NEPA analysis prior to Denison recommencing mining operations. Center for Biological Diversity v. Salazar, No. CV–09–8207–PCT–DGC, 2010 WL 2493988 (D.Ariz. June 17, 2010). Appellants appealed from the denial of their preliminary injunction. A panel of this court affirmed the district court's denial of the preliminary injunction in an unpublished memorandum disposition. Center for Biological Diversity v. Salazar, 431 Fed.Appx. 593 (9th Cir.2011).

After further proceedings in the district court, both parties moved for summary judgment. The district court granted summary judgment in favor of Appellees as to all of Appellants' claims, with one exception. The district court determined that BLM “provided no more than a ‘cursory statement’ of no cumulatively significant impacts in applying the categorical exclusion” when issuing Mohave County the “Free Use Permit” to remove gravel from Robinson Wash and remanded the issue to the BLM. A short time later, BLM provided further explanation as to its use of the categorical exclusion. The district court found that BLM had presented a rational explanation for its use of the categorical exclusion. Accordingly, the district court concluded that use of the categorical exclusion as to the gravel permit was not arbitrary and capricious. The district court thus granted summary judgment on the categorical exclusion issue in favor of Appellees. Appellants now appeal the district court's two summary judgments.

II.

We review summary judgment de novo, “applying the same standards that applied in the district court.” Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir.2006). Under the Administrative Procedure Act, we review actions of the BLM pursuant to FLPMA and NEPA to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (quoting 5 U.S.C. § 706(2)(A)). We defer to BLM's “interpretation of its own regulations ... unless plainly erroneous or inconsistent with the regulations being interpreted.” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (internal quotation marks omitted).

III.

We first address Appellees' threshold question of whether this court's decision made by a prior panel affirming the district court's denial of Appellants' preliminary injunction motion became law of the case as to any issue. Appellees, and in particular Denison, argue that this prior affirmance works as law...