Grand Canyon Trust v. Provencio

• Decision Date: 22 May 2020
• Docket Number: No. CV-13-8045-PCT-DGC,CV-13-8045-PCT-DGC
• Citation: 467 F.Supp.3d 797
• Parties: GRAND CANYON TRUST; Center for Biological Diversity; Sierra Club; and Havasupai Tribe, Plaintiffs, v. Heather PROVENCIO, Forest Supervisor, Kaibab National Forest; and United States Forest Service, U.S. Department of Agriculture, Defendants, and Energy Fuels Resources (USA), Inc.; and EFR Arizona Strip LLC, Intervenor-Defendants.
• Court: U.S. District Court — District of Arizona

467 F.Supp.3d 797

GRAND CANYON TRUST; Center for Biological Diversity; Sierra Club; and Havasupai Tribe, Plaintiffs,

v. Heather PROVENCIO, Forest Supervisor, Kaibab National Forest; and United States Forest Service, U.S. Department of Agriculture, Defendants,andEnergy Fuels Resources (USA), Inc.; and EFR Arizona Strip LLC, Intervenor-Defendants.

No. CV-13-8045-PCT-DGC

United States District Court, D. Arizona.

Signed May 22, 2020

Aaron Matthew Paul, Pro Hac Vice, Grand Canyon Trust, Neil Levine, Pro Hac Vice, Public Justice, Denver, CO, Marc D. Fink, Pro Hac Vice, Center for Biological Diversity, Duluth, MN, Richard Warren Hughes, Pro Hac Vice, Rothstein Donatelli Hughes Dahlstrom Schoenburg & Bienvenu LLP, Santa Fe, NM, Roger Flynn, Pro Hac Vice, Western Mining Action Project, Lyons, CO, for Plaintiffs Grand Canyon Trust, Center for Biological Diversity, Sierra Club.

Marc D. Fink, Pro Hac Vice, Center for Biological Diversity, Duluth, MN, Neil Levine, Pro Hac Vice, Public Justice, Denver, CO, Richard Warren Hughes, Pro Hac Vice, Rothstein Donatelli Hughes Dahlstrom Schoenburg & Bienvenu LLP, Santa Fe, NM, Roger Flynn, Pro Hac Vice, Western Mining Action Project, Lyons, CO, for Plaintiff Havasupai Tribe.

Sean Christian Duffy, US Dept. of Justice - Enrd Natural Resources Section, Washington, DC, for Defendants Michael Williams, United States Forest Service.

Bradley Joseph Glass, Michael K. Kennedy, Gallagher & Kennedy PA, Phoenix, AZ, David J. DePippo, Hunton Andrews Kurth LLP, Richmond, VA, for Intervenor-Defendants.

ORDER

David G. Campbell, Senior United States District Judge

This case arises from the proposed reopening of the Canyon Mine, a 17-acre uranium mine located six miles south of the Grand Canyon in the Kaibab National Forest. The Havasupai Tribe and three environmental groups – Grand Canyon Trust, Center for Biological Diversity, and Sierra Club – brought this suit for declaratory and injunctive relief against the United States Forest Service and the Supervisor of the Kaibab National Forest (collectively, the "Forest Service"). Doc. 1. The Canyon Mine's owners and operators, Energy Fuels Resources (USA), Inc. and EFR Arizona Strip, LLC (together, "Energy Fuels"), intervened as Defendants. Docs. 30, 31, 35.

The parties have filed motions for summary judgment on the only remaining claim in the case – claim four – which challenges the Forest Service's determination that Energy Fuels had "valid existing rights" at the Canyon Mine when the Department of the Interior ("DOI") withdrew public lands around the Grand Canyon from new mining claims. Docs. 226, 233, 234; see Doc. 115 ¶¶ 89-92. The Court heard oral argument by telephone conference on May 11, 2020. See Doc. 242. For reasons stated below, the Court will grant summary judgment in favor of Defendants.

I. Background.

The history of the Canyon Mine spans more than 30 years. In October 1984, Energy Fuels submitted to the Forest Service a proposed Plan of Operations for the mine. AR Doc. 2 at 193-221.¹ The Forest Service completed a Final Environmental Impact Statement ("FEIS") pursuant to the National Environmental Policy Act ("NEPA"). AR Doc. 3. In September 1986, the Forest Service issued a Record of Decision ("ROD") approving construction and operation of the Canyon Mine under a modified version of the Plan (the "1986 Plan"). AR Doc. 6. Several administrative appeals followed, and the Forest Service affirmed the ROD. AR Doc. 188 at 3972. The Ninth Circuit rejected a challenge to the ROD in August 1991. See Havasupai Tribe v. United States , 943 F.2d 32 (9th Cir. 1991).

Shortly thereafter, Energy Fuels began constructing the mine. It built surface structures and sank the first 50 feet of a 1,500-foot shaft, but placed the mine on standby status in 1992 because of low prices in the uranium market. AR Doc. 525 at 10487. For the next 20 years, the mine was inactive but maintained under the interim management portions of the 1986 Plan. AR Doc. 481 at 10314.

In January 2012, the Secretary of the DOI, acting under authority of the Federal Land Policy and Management Act ("FLPMA"), withdrew for 20 years some one million acres of public land from mineral location and entry under the Mining Law of 1872, 30 U.S.C. § 22 (the "Withdrawal"). AR Doc. 481 at 10308-31; 77 Fed. Reg. 2563, 2012 WL 122658 (Jan. 18, 2012) ; see 43 U.S.C. § 1714 ; Nat'l Mining Ass'n v. Zinke , 877 F.3d 845 (9th Cir. 2017).² The Withdrawal covered the location of the Canyon Mine, but did not disturb valid existing mining rights. 77 Fed. Reg. 2563. Before approving the Withdrawal, which had been proposed in 2009, the DOI prepared an Environmental Impact Statement. AR Docs. 446, 447; 74 Fed. Reg. 35,887 -01, 2009 WL 2143370 (July 21, 2009). The statement noted the existence of the Canyon Mine and assumed it would resume operations at some point. AR Doc. 446 at 9090, 9093.

In August 2011, Energy Fuels notified the Forest Service that it intended to resume mining under the 1986 Plan. AR Doc. 439. In response, the Forest Service decided to prepare a mineral report to determine whether the Canyon Mine had "valid existing rights," and therefore was not affected by the Withdrawal (the "VER Determination"). See 43 C.F.R. § 3809.100(a). Although Energy Fuels initially asserted that additional government approvals were not required before the mine reopened (AR Doc. 443), Energy Fuels agreed to withhold shaft sinking until the VER Determination was finished (Doc. 123-2 at 2-3).³

The Mining Law of 1872 provides that citizens may acquire rights to "valuable mineral deposits" on federal lands.

30 U.S.C. § 22. To determine whether Energy Fuels had valid existing rights in the Canyon Mine at the time of the Withdrawal, the Forest Service therefore assessed whether the rights were "valuable." The VER Determination, finished on April 18, 2012, found that a "valuable mineral deposit" existed at the Canyon Mine because, "under present economic conditions, the uranium deposit ... could be mined, removed, transported, milled and marketed at a profit." AR Doc. 525 at 10483, 10506. The Forest Service concluded that Energy Fuels had "valid existing rights that were established prior to the Withdrawal," and that further operations at the mine were not barred by the Withdrawal. Id.

In addition to the VER Determination, the Forest Service performed a "Mine Review" before the mine reopened. AR Doc. 533. The review was conducted by a 13-person interdisciplinary team with expertise in minerals and geology, surface and groundwater, air quality, transportation, tribal consultation, heritage resources, vegetation, the NEPA, and socioeconomic issues. Id. at 10597. Among other matters, the team evaluated the sufficiency of the 1986 Plan and the original FEIS and ROD; historical and religious issues related to local tribes; the effect of resumed operations on the quality of air, surface water, and groundwater; and the effect of resumed operations on wildlife and any threatened, endangered, or sensitive species. Id. at 10592–637. The Mine Review was finished on June 25, 2012, and concluded that operations could resume at the Canyon Mine under the 1986 Plan. Id. at 10594.

Plaintiffs filed this lawsuit in March 2013, seeking declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Doc. 1. Plaintiffs’ amended complaint asserted four claims: (1) the Forest Service violated the NEPA by not conducting a new environmental impact study in connection with the VER Determination (Doc. 115 ¶¶ 70-77); (2) the Forest Service violated the National Historic Preservation Act ("NHPA") by failing to complete a full § 106 historic property review before approving resumed operations at the mine (id. ¶¶ 78-83); (3) the Forest Service alternatively violated the NHPA by not properly updating its original § 106 analysis (id. ¶¶ 79-88); and (4) the Forest Service violated the Mining Law, the FLPMA, and the 1897 Organic Act by failing to account for various costs in the VER Determination (id. ¶¶ 89-92).

On April 7, 2015, the Court granted summary judgment to Defendants on all claims. Doc. 166. On claims one through three, the Court held that the VER Determination was not a "major federal action" requiring a new environmental impact study under the NEPA or an "undertaking" requiring a full § 106 consultation under the NHPA, and that the Forest Service's NHPA review under 36 C.F.R. § 800.13(b)(3) was appropriate and reasonable. Id. at 22-41. On claim four, the Court held that Plaintiffs had Article III standing and that the VER Determination was a "final agency action" subject to review under the APA, but that Plaintiffs lacked prudential standing because claim four fell outside the Mining Law's "zone of interests." Id. at 13-21; see Grand Canyon Trust v. Williams , 98 F. Supp. 3d 1044 (D. Ariz. 2015).

The Ninth Circuit initially affirmed on all grounds. See Havasupai Tribe v. Provencio , 876 F.3d 1242 (9th Cir. 2017). One year later, however, the Ninth Circuit withdrew its original decision and entered an amended order that affirmed the rulings on claims one through three, but held that claim four fell within the FLPMA's zone of interests. The Ninth Circuit remanded claim four for consideration on the merits. Havasupai Tribe v. Provencio , 906 F.3d 1155, 1166-67 (9th Cir. 2018).

The parties now move for summary judgment on claim four. Docs. 226, 233, 234. Plaintiffs argue that the VER Determination is invalid because the Forest Service failed to consider all relevant costs in its profitability analysis of the Canyon Mine. Doc. 228 at 13-22. Defendants contend that Plaintiffs lack Article III standing and otherwise are entitled to no relief because the VER Determination was not legally required. Docs. 233-1 at 8-11, 234-1 at 12-20. Defendants further contend that claim four fails on the merits because the VER Determination included all relevant costs and must be upheld under the APA's deferential standard of review. Docs. 233-1 ...