Havasupai Tribe v. Robertson

• Citation: 943 F.2d 32
• Decision Date: 26 August 1991
• Docket Number: No. 90-15956,90-15956
• Parties: HAVASUPAI TRIBE, a federally recognized Indian Tribe; Delmer Uqualla; Issa Uqualla; Clark Jack, Jr.; Rex Tilousi; Wayne Sinyella, Plaintiffs-Appellants, v. F. Dale ROBERTSON, in his official capacity as Chief, United States Forest Service; Sotero Muniz, in his official capacity as Regional Forester, Southwestern Region, United States Forest Service; Leonard Lindquist, in his official capacity as Forest Supervisor, Kaibab National Forest, Southwestern Region, United States Forest Service; Energy Fuels Nuclear, Inc., a Colorado Corporation; Energy Fuels Exploration Company, a Colorado Corporation; United States of America, The United States Department of Agriculture, Forest Service; Richard Lyng, in his official capacity as Secretary of Agriculture, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 32

943 F.2d 32

HAVASUPAI TRIBE, a federally recognized Indian Tribe;

Delmer Uqualla; Issa Uqualla; Clark Jack, Jr.;

Rex Tilousi; Wayne Sinyella, Plaintiffs-Appellants, v. F. Dale ROBERTSON, in his official capacity as Chief, United

States Forest Service; Sotero Muniz, in his official

capacity as Regional Forester, Southwestern Region, United

States Forest Service; Leonard Lindquist, in his official

capacity as Forest Supervisor, Kaibab National Forest,

Southwestern Region, United States Forest Service; Energy

Fuels Nuclear, Inc., a Colorado Corporation; Energy Fuels

Exploration Company, a Colorado Corporation; United States

of America, The United States Department of Agriculture,

Forest Service; Richard Lyng, in his official capacity as

Secretary of Agriculture, Defendants-Appellees.

No. 90-15956.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 11, 1991.

Decided Aug. 26, 1991.

Joe P. Sparks and Michael Shiel, Scottsdale, Ariz., for plaintiffs-appellants.

Lawrence E. Stevens, Parson, Behle & Latimer, Salt Lake City, Utah, for defendant-appellee Energy Fuels.

Jacques B. Gelin, Dept. of Justice, Washington, D.C., for defendant-appellee U.S. Government.

Appeal from the United States District Court for the District of Arizona.

Before HUG, SCHROEDER and WIGGINS, Circuit Judges.

PER CURIAM:

The Havasupai Tribe appeals the district court's affirmance of the decision of the Forest Service, which approved the development of a uranium mine in the area of the Grand Canyon. The Tribe had opposed the development, arguing that the plot of land involved is an area of religious significance to them, and that the Forest Service did not adequately consider the effect of such a mine on their water supply.

In this appeal the Tribe contends that (1) the district court erred by barring discovery and limiting review to the administrative record filed by the Forest Service, (2) the Plan interfered with the Tribe's aboriginal right of access to the mine site, and (3) the Environmental Impact Statement (EIS) prepared by the Forest Service violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA).

The district court considered the appellants' challenges in a lengthy and carefully reasoned opinion. Havasupai Tribe v. United States, 752 F.Supp. 1471 (D.Ariz.1990). We agree with the district court's reasoning, and indeed the appellant itself commendably does not quarrel with most of it. We therefore affirm.

Appellants argue strenuously that the district court should not have limited its review to the administrative record compiled by the Forest Service in considering the appellants' NEPA claims. The Tribe is correct in its argument that discovery beyond the administrative record is permitted where it is clear that the agency considered documents outside of that record in reaching its conclusion. The Tribe's claim that the agency considered such evidence in this case, however, is purely speculative. Because the Tribe has pointed to nothing in support of its contention that the Chief of the Forest Service acted in bad faith or relied on materials outside the administrative record, the district court did not err by barring discovery. See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-37 (9th Cir.1988), modified, 867 F.2d 1244 (9th Cir.1989).

The Tribe's most troubling claim is that there was inadequate consideration by the government of the effects of the mining on groundwater which supplies the Tribe's water. In support of this claim, however, the Tribe relies upon the contentions of Dr. David Kramer, which were made in a letter drafted after the final EIS issued. The Tribe had some obligation to raise these issues during the comment process. Its views were solicited. Absent exceptional circumstances, such belatedly raised issues may not form a basis for reversal of an agency decision. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54, 98 S.Ct....