Ctr. For Biological Diversity v. Salazar

• Decision Date: 27 May 2011
• Docket Number: No. CV–09–8207–PCT–DGC.,CV–09–8207–PCT–DGC.
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Grand Canyon Trust; Sierra Club; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation; and the Havasupai Tribe, Plaintiffs,v.Ken SALAZAR, Secretary of the Interior; United States Bureau of Land Management; Denison Arizona Strip, LLC; and Denison Mines (USA) Corp., Defendants.
• Court: U.S. District Court — District of Arizona

791 F.Supp.2d 687

CENTER FOR BIOLOGICAL DIVERSITY; Grand Canyon Trust; Sierra Club; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation; and the Havasupai Tribe, Plaintiffs,

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

No. CV–09–8207–PCT–DGC.

United States District Court, D. Arizona.

May 27, 2011.

Amy R. Atwood, Portland, OR, Neil Levine, Neil Levine Law Offices, Denver, CO, Roger Flynn, Lyons, CO, for Plaintiffs.Michael D. Thorp, Rickey Doyle Turner, Tyler Guy Welti, US Dept. of Justice, Washington, DC, for Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

This case arises from the renewed operation of a uranium mine near Grand Canyon National Park. Plaintiffs allege that the Bureau of Land Management violated mining and environmental laws when it allowed the mine to resume operations. Plaintiffs ask the Court to enjoin mining activities until the Bureau of Land Management approves a new plan of operations for the mine and completes updated environmental reviews.

The parties have filed motions for summary judgment. Docs. 130, 136, 141. The Court heard oral argument on May 20, 2011. For reasons that follow, the motions will be granted in part and denied in part.

I. Background.

The Bureau of Land Management (“BLM”) administers public lands within a five-million-acre area in the northwestern corner of Arizona known as the “Arizona Strip.” These public lands are located between the Colorado River and the Utah line, in Coconino and Mohave Counties. The Arizona Strip offers a host of recreational activities for the public. It is also rich in cultural and natural resources, and has been mined for copper, silver, and uranium.

The Arizona 1 mine is located within the Arizona Strip about 35 miles south of Fredonia, Arizona, and 6 miles north of the Grand Canyon. The mine occupies 19 acres of surface land and extracts uranium ore from a shaft more than 1,000 feet deep into a breccia pipe—an underground formation that contains uranium ore. Ore is brought to the surface and transported by truck to a mill near Blanding, Utah.

Arizona 1 originally was owned by Energy Fuels Nuclear, Inc. In 1984, BLM approved Energy Fuels' plan to explore for uranium at the site. In early 1988, Energy Fuels submitted a plan of operations to develop the mine and extract ore. BLM performed an environmental assessment, found the mine would have no significant environmental impact, and approved the plan of operations in a decision dated May 9, 1988. Energy Fuels constructed the mine, but ceased operations in 1992 when uranium prices fell. Denison Arizona Strip, LLC and Denison Mines (USA) Corp. (collectively, “Denison”) purchased the mine in 2007 and resumed operations two years later.

This action was brought in November 2009 against BLM and the Secretary of the Interior by three environmental groups: the Center for Biological Diversity, the Grand Canyon Trust, and the Sierra Club. Doc. 1. Two Indian tribes whose reservations are located at or near the Grand Canyon—the Kaibab Band of Paiute Indians and the Havasupai Tribe—have joined as Plaintiffs. Docs. 17, 68. Denison has intervened as a Defendant. Docs. 19, 31. The Court denied Plaintiffs' motion for a preliminary injunction (Docs. 36, 71), a decision recently affirmed on appeal. See Ctr. for Biological Diversity v. Salazar, No. 10–16513, 2011 WL 1742998 (9th Cir. May 6, 2011).

Plaintiffs seek declaratory and injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. The third amended complaint asserts five claims for relief. Doc. 126. First, Plaintiffs claim that the plan of operations approved by BLM in 1988 became ineffective when operations at Arizona 1 ceased in 1992, and that BLM violated the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701–1785, the General Mining Law of 1872, 30 U.S.C. §§ 21–54, and the implementing regulations for those statutes when it allowed operation of the mine to resume in 2009 without a new plan of operations. Id. ¶¶ 57–62. Second, Plaintiffs claim that if the 1988 plan of operations is effective, then BLM violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370g, by failing to supplement the environmental analysis performed in 1988. Id. ¶¶ 63–68. Third, Plaintiffs claim that BLM is in violation of the FLPMA by failing to prevent unnecessary and undue degradation of public lands. Id. ¶¶ 69–72. Fourth, Plaintiffs claim that BLM violated NEPA by providing Mohave County with a free use permit to excavate gravel without performing adequate NEPA analysis. Id. ¶¶ 73–82. Finally, Plaintiffs claim that BLM erroneously failed to perform required NEPA analysis before approving an updated reclamation bond for Arizona 1. Id. ¶¶ 83–88.¹

II. Standard and Scope of Review Under the APA.

The APA allows a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A claim to compel action may proceed under the APA “only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original); see Hells Canyon Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir.2010).

The APA does not allow a court to overturn an agency action simply because the court disagrees with the action. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010). A court may set aside a final agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.2007) (internal quotes and citation omitted).

In addition to these substantive limitations, review under the APA generally is restricted to the administrative record. See 5 U.S.C. 706(2); Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir.2001). The Court may consider materials outside of the administrative record only in limited circumstances, none of which exists in this case. See Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.2006). The Court's decision therefore is limited to the administrative record supplied by the parties. See Docs. 61, 129.²

III. Claims One and Three.

The Arizona 1 mine is subject to regulations issued by BLM under the FLPMA, 43 C.F.R. §§ 3809.01 et seq. (the “3809 regulations”). These regulations require mine owners to prepare a plan of operations and obtain BLM approval of the plan before beginning mining operations greater than casual use. 43 C.F.R. § 3809.11(a); see Ctr. for Biological Diversity v. U.S. Dep't of Interior, 623 F.3d 633, 643 (9th Cir.2010). The plan of operations must provide a significant amount of information about the owner's mining plans, including a complete description of the operations, maps of the project area, preliminary designs, a schedule of anticipated periods of temporary closure, plans for monitoring, interim management, and reclamation, and any other information necessary to ensure that the operations will comply with the regulations. 43 C.F.R. § 3809.401. The plan approval process, depending on the circumstances, may require BLM to review public comments and consult with other agencies and state and tribal officials. 43 C.F.R. § 3809.411. BLM cannot approve a plan of operations unless BLM complies with NEPA and, as required by the FLPMA, 43 U.S.C. § 1732(b), the plan ensures that the owner will prevent unnecessary and undue degradation while conducting mine operations. 43 C.F.R. §§ 3809.411(a)(3)(ii), 3809.415; Ctr. for Biological Diversity, 623 F.3d at 644; see also Mineral Policy Ctr. v. Norton, 292 F.Supp.2d 30, 34–36 (D.D.C.2003) (discussing how the 3809 regulations have established various procedures to prevent unnecessary and undue degradation, including the “prudent operator” standard utilized by the regulations).

As noted above, BLM approved a plan of operations for Arizona 1 in 1988. That approval has never been challenged. Denison restarted the mine in 2009 under the 1988 plan.

Plaintiffs contend that the closure of Arizona 1 in 1992 rendered the 1988 plan of operations “ineffective” under § 3809.423 of the regulations, and that BLM therefore was required to approve a new plan before operation of the mine could resume. Plaintiffs assert in claim one that BLM's approval of the renewed operation violated § 3809.11's requirement that mining operations begin only under an approved plan of operations. Doc. 126 ¶¶ 61–62. Plaintiffs assert in claim three that BLM has failed to comply with its duty under the FLPMA and the regulations to ensure that the mine does not cause unnecessary and undue degradation of public lands, see 43 U.S.C. § 1732(b), 43 C.F.R. § 3809.01. Id. ¶¶ 69–72.³

In seeking summary judgment on claims one and three, Plaintiffs essentially reassert the arguments made in their preliminary injunction briefing. Docs. 37 at 16–19, 66 at 12–18. The Court previously rejected those arguments, finding that BLM's interpretation of the 3809 regulations is largely consistent with the language and intent of the regulations as a whole. Doc. 71 at 3–8. For the reasons that follow, the Court finds no basis to deviate from that conclusion.

Plaintiffs' argument that operations at Arizona 1 could not resume without BLM approving a new plan of operations is based primarily on § 3809.423 of the regulations. That section reads as follows:

How long does my plan of operations remain in effect?

Your plan of operations remains in effect as long as you are conducting...