Grand Canyon Trust v. Williams
| Decision Date | 09 September 2013 |
| Docket Number | No. CV13-8045-PCT-DGC,CV13-8045-PCT-DGC |
| Parties | Grand Canyon Trust; Center for Biological Diversity; Sierra Club; Havasupai Tribe, Plaintiffs, v. Michael Williams, Forest Supervisor, Kaibab National Forest; United States Forest Service, an agency in the U.S. Department of Agriculture, Defendants, and Energy Fuels Resources (USA), Incorporated; EFR Arizona Strip LLC, Defendants-Intervenors. |
| Court | U.S. District Court — District of Arizona |
This case arises out of the renewed operation of the Canyon Uranium Mine ("Canyon Mine"). Plaintiffs allege that Defendants U.S. Forest Service and Michael Williams, Supervisor of the Kaibab National Forest, violated environmental and historical preservation laws by allowing the mine to resume operations. Energy Fuels Resources (USA) Inc. and EFR Arizona Strip LLC (together, "EFR") have intervened as defendants on the ground that they own unpatented mining claims at Canyon Mine and conduct operations pursuant to a valid Plan of Operations ("Plan") approved by the Forest Service. Docs. 31, 35. Plaintiffs have filed a motion for a preliminary injunctionthat seeks to halt mine operations. Doc. 36. The motion is fully briefed. For reasons that follow, the Court will deny the motion.1
Canyon Mine is a breccia pipe uranium mine located in the Kaibab National Forest. The site occupies approximately 17 acres of surface land in Northern Arizona and is approximately six miles south of the Grand Canyon National Park boundary and 35 miles southeast of the Havasupai Reservation. AR 10596, 10628. After having conducted exploration activities on the site from 1978 to 1985, Energy Fuels Nuclear, Inc., ("EFN") submitted to the Forest Service a Plan for the Canyon Mine site that proposed the development of a uranium mine. AR 10594. After completing an Environmental Impact Statement ("EIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Forest Service issued a Record of Decision ("ROD") approving the Plan, with modifications, on September 26, 1986.
Red Butte, a prominent mesa located four miles south of Canyon Mine, is a sacred site to the Havasupai Tribe. AR 10605. The Tribe filed a lawsuit challenging the ROD on several grounds, including that the Forest Service's approval of the Plan violated its first amendment right to free exercise of religion at the Canyon Mine site. The Forest Service's decision was upheld by the District Court and Ninth Circuit. 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).
Operations started under the Plan, but work was stopped and the mine was placed on standby status when uranium prices dropped in 1992. Doc. 39-4 at 12; AR 10594. All surface facilities for the mine had been constructed and the vertical underground shaft had reached approximately 50 feet. Doc. 39-4 at 12. Denison Mines ("Denison") acquired Canyon Mine from EFN in 1997. Doc. 39-4 at 12; AR 10594.
Since the 1986 ROD, the National Historical Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq., which requires federal agencies to "take into account the effect of the[ir] undertaking[s] on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register," 16 U.S.C. § 470f, was amended to define "historic properties" to include "[p]roperties of traditional religious and cultural importance to an Indian tribe . . . [that] may be determined to be eligible for inclusion in the National Register," 16 U.S.C. § 470a(d)(6). Pursuant to that amendment, the Forest Service determined in 2010 that Red Butte is eligible for inclusion in the National Register of Historic Places as a traditional cultural property ("TCP"). See Doc. 39-6 at 54-55. Canyon Mine is located within the Red Butte TCP boundary. AR 10606.
On July 21, 2009, the Secretary of the Interior published notice of his intent "to withdraw approximately 633,547 acres of public lands and 360,002 acres of National Forest System lands for up to 20 years from location and entry under the Mining Law of 1872." Notice of Proposed Withdrawal, 74 Fed. Reg. 35,887 (July 21, 2009) ("the 2009 Notice"). After completing an EIS, the Secretary issued a ROD (the "Withdrawal") on January 9, 2012, "withdraw[ing] from location and entry under the Mining Law, subject to valid existing rights, approximately 1,006,545 acres of federal land in Northern Arizona for a 20-year period[.]" AR 10310. The EIS noted that the withdrawal area included four mines with approved Plans that predated the 2009 Notice (including the Canyon Mine), and assumed that mining operations would therefore occur in the withdrawal area. AR 10314-15.
On September 13, 2011, Denison advised the Forest Service that it intended to resume mining operations at Canyon Mine under the existing Plan. AR 8611. The letter stated that it was Denison's position "that no action is required by [the Forest Service] in connection with Denison's resuming mining operations under the Plan." Id. In a follow-up letter dated November 1, 2011, Denison confirmed that "the resumption of active mining operations will not require any changes to Denison's previously approved mining operations under the [Plan] and ROD." AR 10241-44. Thereafter, the Forest Servicerequested that Denison postpone resuming mining activities while it conducted a mineral examination to verify the validity of the Canyon Mine's mining claims. Roberts, Decl., Doc. 59 at 1-7, ¶¶ 14-15. Denison voluntarily agreed to postpone mining activities in response to the Forest Service's request. Id., ¶ 16.
Forest Service mineral examiners evaluated the Canyon Mine mining claims and issued a Valid Existing Rights Determination on April 18, 2012 ("VER Determination"). Doc. 39-4 at 8. The Forest Service also released a Canyon Mine Review ("Mine Review") on June 25, 2012. AR 10593-637. The review "concluded that no modification or amendment to the existing [Plan] is necessary; that no correction, supplementation, or revision to the environmental document is required; and that operations at the Canyon Mine may continue as a result of no further federal authorization being required." AR 10592.
Following a corporate merger transaction, Denison was renamed EFR. AR 10475. The news release announcing the merger noted that "[s]haft sinking is expected to begin at Canyon mine in the fourth quarter 2012, pending regulatory approval[.]" AR 10478. EFR resumed mining operations after the Forest Service completed the Mine Review. Doc. 59 at 1-7, ¶ 17.
Plaintiffs' complaint asserts eight claims for relief: (1) the Forest Service violated NEPA by failing to supplement the 1986 EIS; (2) the Forest Service violated NEPA in deciding not to supplement the 1986 EIS; (3) the Forest Service violated NEPA by approving mining operations on lands subject to the Withdrawal; (4) the Forest Service violated NHPA by approving mining operations on lands subject to the Withdrawal; (5) the Forest Service violated NHPA by not completing a NHPA § 106 consultation as required under 36 C.F.R. § 800.13(b)(1); (6) the Forest Service violated the Organic Administration Act of 1897 and the National Forest Management Act ("NFMA") by approving mining operations on lands subject to the Withdrawal; (7) the Forest Service's VER Determination violated the Mining Law of 1872, the Federal Land Policy Management Act ("FLPMA"), the Withdrawal, the Organic Administration Act of 1897,and the Administrative Procedure Act ("APA"); and (8) the Forest Service violated its regulations and the APA when it decided not to modify the Canyon Mine existing Plan. Doc. 1. Plaintiffs seek a preliminary injunction on claims three, four, and five. Doc. 39.
Defendants have filed a motion to dismiss seven of Plaintiffs' eight claims under Rule 12(b)(1) on the following grounds: (1) Plaintiffs' first, second, third, fourth, sixth, seventh, and eighth claims do not challenge final agency action; (2) Plaintiffs' fourth claim is barred by res judicata; and (3) Plaintiffs' fourth claim is time-barred. Doc. 71. Plaintiffs have filed a motion to stay briefing and consideration of the motion to dismiss to allow discovery on jurisdictional defenses. Doc. 74. Because Plaintiffs do not ask the Court to stay its consideration of the preliminary injunction motion, the Court will resolve that motion with this order.
"A preliminary injunction is an extraordinary remedy never awarded as a matter of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). To obtain a preliminary injunction, a plaintiff must show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20. The test includes a sliding scale. If a plaintiff shows that the balance of hardships will tip sharply in his favor, he need not make as strong a showing of the likelihood of success on the merits - the existence of serious questions will suffice. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
To determine whether Plaintiffs can obtain a preliminary injunction by raising serious questions as opposed to showing a likelihood of success on the merits, the Court will first consider the balance of hardships. Plaintiffs argue that they will suffer the following harms if the Court does not promptly enjoin operation of the Canyon Mine:(1) deprivation of an opportunity to participate in the procedural processes of NEPA and NHPA "at a time when such participation is calculated to matter" (Doc. 39 at 27 (ellipses omitted) (quoting Save Strawberry Canyon v. Dep't of Energy, 613 F. Supp. 2d 1177, 1189 (N.D. Cal. 2009))); (2) injury to the...
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