Havasupai Tribe v. US

• Decision Date: 18 April 1990
• Docket Number: No. Civ. 88-971 PHX-RGS.,Civ. 88-971 PHX-RGS.
• Citation: 752 F. Supp. 1471
• Parties: The HAVASUPAI TRIBE, et al., Plaintiffs, v. UNITED STATES of America, the United States Department of Agriculture, Forest Service, et al., Defendants.
• Court: U.S. District Court — District of Arizona

752 F. Supp. 1471

The HAVASUPAI TRIBE, et al., Plaintiffs, v. UNITED STATES of America, the United States Department of Agriculture, Forest Service, et al., Defendants.

No. Civ. 88-971 PHX-RGS.

United States District Court, D. Arizona.

April 18, 1990.

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Joe E. Sparks, for plaintiffs.

Michael R. Arkfled, Gary B. Randall, Norman D. James, Lawrence E. Stevens, Brad Doores, for defendants.

ORDER

STRAND, District Judge.

I. INTRODUCTION

Plaintiffs, the Havasupai Tribe and individual members of the Tribe, seek judicial review of the final decision by the Chief of the Forest Service to approve a modified Plan of Operations (the "Plan") submitted by co-defendant Energy Fuels Nuclear, Inc. in October 1984, for the Canyon Uranium Mine located in the Kaibab National Forest near the Grand Canyon National Park. Defendants in this action are: the United States of America, The Department of Agriculture, Forest Service; the Secretary of Agriculture; Chief of the Forest Service; the Regional Forester of the Southwest Region; the Forest Supervisor of the Kaibab National Forest (collectively referred to as the "federal defendants"); Energy Fuels Nuclear, Inc. ("EFN") and Energy Fuels Exploration Company, a corporation (collectively referred to as "Energy Fuels"). Plaintiffs challenge the Forest Service's decision approving the Plan on four grounds. First, plaintiffs allege that the approval of the Plan by the Forest Service violates plaintiffs' first amendment rights to freely exercise their religion at the Canyon Mine site. Second, plaintiffs assert that the actions of both the Forest Service and EFN violate the plaintiffs' aboriginal right of access to the Canyon Mine site. Third, plaintiffs argue that the Forest Service breached its fiduciary duties owed to the plaintiffs by failing to preserve plaintiffs' alleged right of access to the Canyon Mine site. Fourth, plaintiffs allege that the Environmental Impact Statement ("EIS") is deficient and fails to comply with the National Environmental Policy Act, 42 U.S.C. ? 4321 et seq. ("NEPA"). Plaintiffs seek declaratory and permanent injunctive relief under the first three claims, and on their fourth claim, request that the court declare the EIS inadequate and order the Forest Service to prepare an EIS in compliance with NEPA.¹

The matter before the court has been extensively briefed and argued by the parties.² Having considered the Administrative Record, the memoranda of the parties and their positions at oral argument, the file in this matter, and the pertinent legal authority, the court now renders its decision.

II. BACKGROUND

In October 1984, Energy Fuels Nuclear, Inc. submitted to the United States Forest Service, Kaibab National Forest, a Plan of Operations for the Canyon Mine site, pursuant to Forest Service regulations, 36 C.F.R. ? 228, Subpart A. EFN's Plan proposed the development of a uranium mine on an unpatented mining claim located on the Tusayan Ranger District of the Kaibab National Forest in Coconino County, Arizona.

The Canyon Mine site is located on land which was part of the original Grand Canyon Forest Reserve established in 1893 pursuant to the Forest Reservation Act of 1891. In 1908, the area was incorporated into the Coconino National Forest. Between 1908 and 1934, the area in dispute underwent numerous administrative name changes, however, the area officially became part of the Kaibab National Forest in 1934. The Canyon Mine site is approximately thirty-five miles southeast and upstream from the Havasupai Reservation.

The Canyon Mine involves the underground mining of breccia pipe uranium deposits. The Canyon Mine site will require disturbance of approximately 17 acres for the mine shaft and surface facilities. EFN has conducted exploratory drilling on the site during the period between 1978-1985 (excluding 1979). See generally, V.4B-D.215-P.4664; Id. at P.4652 (affidavits setting out history of development at the Canyon Mine site).

The Havasupai are a federally recognized Indian Tribe who have made their home in and around the Grand Canyon located in Northern Arizona since before the first contact with Europeans.³ It is undisputed that plaintiffs' aboriginal lands once encompassed the Canyon Mine site. Plaintiffs contend that the location proposed for the Canyon Mine is a sacred and religious place for the members of the Havasupai Tribe. Plaintiffs believe that complete development of the Canyon Mine will deny plaintiffs' access to their sacred site and destroy the very essence of their religious and cultural system. E.g., V.2B-D.59-P.1827 (Transcript of Oral Presentation before the Deputy Regional Forester, May 14, 1987); V.3B-D.122-P.3137-3143 (Affidavit of Four Havasupai Tribe members); V.3D-D.176-P.3716-3825 (Transcript of Oral Presentation before the Chief of the Forest Service, February 25, 1987).

Following submission of the Plan by EFN, the Forest Service distributed more than 100 copies of the Plan to interested parties. The Forest Service received over 200 letters in response to requests for written comment. Analysis of these comments and input from several public meetings made it clear there was substantial public concern and controversy about the proposal and its potential effects on the quality of the human environment. Consequently, the Forest Service, pursuant to NEPA, decided to prepare an EIS. The notice of the decision to prepare an EIS, which formally begins the scoping process, was published in the Federal Register on April 30, 1985. 50 Fed.Reg. 18281. Following the decision to prepare an EIS, the Forest Service distributed more than 2,000 scoping letters to federal, state, and local government agencies, Indian tribes, news media and other interested individuals in preparation for a public scoping session to be held in Flagstaff, Arizona, on May 15, 1985. As a result of the scoping process, the Forest Service identified the principal areas of concern to be addressed in the EIS.

The Forest Service prepared a draft EIS considering various alternatives and released it to the public for comment on February 28, 1986. The deadline for public comment was May 1, 1986. The Forest Service released a final EIS, which was revised to reflect the comments received on the draft EIS, on September 29, 1986. On September 26, 1986, Forest Supervisor, Leonard Lindquist, issued his Record of Decision documenting the approval of the modified Plan of Operations.

On November 10, 1986, following the issuance of the Record of Decision approving the modified Plan of Operations, plaintiffs and others filed a timely appeal from the Forest Supervisor's decision with the Regional Forester, pursuant to 36 C.F.R. ? 211.18. Appellants also sought a stay of site preparation and drilling pending the appeal. On November 21, 1986, the Regional Forester, Sotero Muniz, stayed the drilling of the uranium mine pending appeal, but authorized commencement of the mine site preparation activities.

On February 17, 1987, the Forest Supervisor filed his responsive statement with the Regional Forester and the public. On August 28, 1987, the Regional Forester affirmed the Forest Supervisor's decision on the merits. On September 25, 1987, plaintiffs and others appealed from the Regional Forester's decision to the Chief of the Forest Service, pursuant to 36 C.F.R. ? 211.18, and again sought a stay of drilling at the site. On October 22, 1987, the Chief of the Forest Service continued the stay that had been issued by the Regional Forester. On June 9, 1988, the Chief of the Forest Service issued his decision affirming the Regional Forester's decision of August 28, 1987. The Secretary of Agriculture decided neither to review the procedural appeal nor the appeal on the merits, so the Chief's decisions became the agency's final determination.

Plaintiffs brought the instant suit seeking review of the agency's final decision. Following a hearing on the plaintiffs' application for preliminary injunction on June 17, 1988, the parties stipulated and the court ordered that the stay entered by the Forest Service would remain in effect until the court rules on the merits of the controversy and thereafter until time for appeal has expired.

III. EXTINGUISHMENT OF ABORIGINAL TITLE

Plaintiffs claim that they have a prior and superior right of access to their sacred site at the Canyon Mine site based on their aboriginal title which plaintiffs argue was preserved by the Grand Canyon National Park Enlargement Act, 16 U.S.C. ? 228i (hereinafter the "GCEA"). Defendants assert that plaintiffs' reliance on the GCEA is misplaced and that there is no doubt that by the time the GCEA became law in January 1975, all interest of the Havasupai Tribe in any of the non-trust lands comprising the Kaibab National Forest, including the Canyon Mine site had been extinguished.

It is undisputed that plaintiff's aboriginal title once encompassed the area of the Canyon Mine site.⁴ Aboriginal title is a term of art used to describe an Indian possessory interest in land which Indians have inhabited since time immemorial. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234, 105 S.Ct. 1245, 1251, 84 L.Ed.2d 169 (1985) (citing Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947)). The Supreme Court has consistently recognized the aboriginal rights of the Indians to their lands. The Indians right of occupancy is "`as sacred as the fee simple of the whites.'" Id. at 235, 105 S.Ct. at 1251 (quoting Mitchel v. United States, 9 Pet. 711, 746, 9 L.Ed. 283 (1835)).

Aboriginal title is a permissive right of occupancy granted by the federal government. United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976) (citing Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 573-74, 5 L.Ed. 681 (1823) (Marshall, C.J.)). Aboriginal title may be extinguished by the federal...