Yount v. Salazar
| Decision Date | 30 September 2014 |
| Docket Number | No. CV11-8171 PCT-DGC,No. CV12-8038 PCT DGC,No. CV12-8075 PCT DGC,No. CV12-8042 PCT DGC,CV11-8171 PCT-DGC,CV12-8038 PCT DGC,CV12-8042 PCT DGC,CV12-8075 PCT DGC |
| Parties | Gregory Yount, et al., Plaintiffs, v. Kenneth Lee Salazar, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
This case concerns a withdrawal by the Secretary of the Interior of more than one million acres of federal land from uranium mining. The withdrawn land surrounds Grand Canyon National Park and includes a North Parcel of approximately 550,000 acres, an East Parcel of approximately 135,000 acres, and a South Parcel of some 322,000 acres. The withdrawal will close these lands to the exploration and development of uranium mining claims for 20 years, although mining of a few existing claims will be permitted. Plaintiffs in this case include counties, associations, companies, and an individual with interests in uranium mining. They ask the Court to set aside the withdrawal as illegal under several federal statutes.
Motions for summary judgment have been filed by Plaintiffs American Exploration & Mining Association ("AEMA") and Gregory Yount (Doc. 167), Plaintiffs Nuclear Energy Institute and National Mining Association ("NEI and NMA") (Doc. 170), and Plaintiffs Arizona Utah Local Economic Coalition ("the Coalition") and Quaterra Resources, Inc. (Doc. 173). Defendant United States and Defendant-Intervenors Centerfor Biological Diversity, Grand Canyon Trust, Havasupai Tribe, National Parks Conservation Association, and the Sierra Club (collectively "Defendants") have filed cross-motions for summary judgment. Docs. 198, 208. The Court heard oral argument on September 9, 2014. For reasons that follow, the Court will grant summary judgment in favor of Defendants and not set aside the Secretary's withdrawal decision.
Lands around the Grand Canyon have seen mining activity since the late 1800s. AR 84. When President Theodore Roosevelt created the Grand Canyon Preserve in 1906, he withdrew much of the land from mining, but mines were opened on land surrounding the canyon when uranium deposits were discovered in the 1940s and 1950s. AR 2. Uranium near the canyon is found in breccia pipes - pipe-shaped mineral deposits that extend thousands of feet underground. Five of these pipes were mined for uranium in the 1950s, with the Orphan Mine producing more than 2,000 tons of uranium between 1952 and 1969. AR 84. Exploration increased when uranium prices spiked in the 1970s. AR 2. Much of the exploration was in the North Parcel. AR 84.
During the 1970s, the U.S. Geological Survey ("USGS") began studying uranium deposits in the area and produced maps detailing breccia pipe deposits. In the 1980s and 1990s, six new uranium mines produced almost 1.5 million tons of uranium and more than 900 exploration holes were drilled in the Tusayan Ranger District. AR 2.
Many of the uranium mines were put on standby status when the price of uranium dropped in the 1990s, but a price rise in 2004, followed by a surge to more than $130 per pound in 2007, prompted renewed interest in uranium mining and thousands of new mining claims were located. AR 3. These new claims prompted concerns about the potential impact of uranium mining on the Grand Canyon watershed and led Arizona Congressman Raúl Grijalva to introduce legislation that would permanently withdraw more than one million acres around the canyon from mining. Id.
On July 21, 2009, Interior Secretary Ken Salazar published a notice of intent to withdraw 633,547 acres of public lands and 360,002 acres of National Forest land for upto 20 years from location and entry under the Mining Law of 1872. See Notice of Proposed Withdrawal, 74 Fed. Reg. 35,887 (July 21, 2009). The notice had the immediate effect of withdrawing the lands for a period of two years to permit analysis and study under the National Environmental Protection Act ("NEPA"). The Bureau of Land Management ("BLM") published a notice of its intent to prepare an Environmental Impact Statement ("EIS"), with the stated purpose "to protect the Grand Canyon watershed from adverse effects of locatable mineral exploration and mining, except for those effects stemming from valid existing rights." 74 Fed. Reg. 43,152-53 (Aug. 26, 2009).
In accordance with NEPA, BLM issued its Draft EIS ("DEIS") on February 18, 2011 (76 Fed. Reg. 9,594), and, after an extended comment period, issued its Final EIS ("FEIS") on October 27, 2011 (76 Fed. Reg. 66,747). The Department of the Interior ("DOI") issued a Record of Decision ("ROD") on January 9, 2012, which withdrew I, 006,545 acres from mining pursuant to the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1714. AR 1-23. This 2012 decision, referred to in this order as "the Withdrawal," is challenged by Plaintiffs in this case.
On January 8, 2013, the Court granted in part and denied in part Defendants' motions to dismiss several claims for lack of standing. Doc. 87. The Court dismissed all claims under NEPA brought by Plaintiffs Yount, AEMA, and Quaterra, leaving only NEPA claims by NEI, NMA, and the Coalition. Plaintiffs' claims under the FLPMA and the Administrative Procedures Act ("APA") remain. Plaintiff Yount also alleges that the Withdrawal's stated purpose of protecting the cultural and religious heritage of Native American tribes violates the Establishment Clause of the United States Constitution. Doc. 27, ¶ 144-148.
The Secretary decided to proceed with the Withdrawal after evaluating possible effects of uranium mining in the DEIS and FEIS. These documents included a detailed analysis of four different alternatives: (a) no withdrawal of land from uranium mining,referred to in the FEIS as the "no action" alternative; (b) withdrawal of the proposed 1,006,545 acres; (c) withdrawal of 648,802 acres; and (d) withdrawal of 292,086 acres. AR 13-14. Before selecting these alternatives, BLM considered other possible courses of action including a shorter withdrawal period of 10 years, a withdrawal limited to lands with a low mineral potential, phased mining, a permanent withdrawal, a change in federal law to provide additional environmental protections, and the adoption of new mining regulations. BLM eliminated each of these alternatives before preparing the FEIS, and the Secretary ultimately selected the full withdrawal alternative. AR 14-15.
In preparation for the EIS, the Secretary directed USGS to prepare a scientific report on various issues raised by the proposed withdrawal. In response, the USGS prepared Scientific Investigations Report 2010-5025 (the "USGS Report"). AR 57-415. With this report in hand, BLM prepared the DEIS and published it in February 2011 for a 45-day public comment period. The public comment period was later extended to 75 days, and more than 296,000 comments were received. BLM also hosted four public meetings and held community meetings with various tribes to discuss the DEIS. AR 17.
The DEIS, FEIS, and ROD relied heavily on the USGS Report. In the report, USGS analyzed soil and sediment samples at six sites that experienced various levels of uranium mining north of the Grand Canyon, including reclaimed uranium mine sites, approved sites where mining was temporarily suspended, and exploratory sites that were drilled but not mined. Uranium and arsenic were consistently detected in these areas at levels above natural background. AR 9. Samples from 15 springs and five wells in the region contained dissolved uranium concentrations greater than EPA maximum concentrations for drinking water. USGS was uncertain whether these concentrations resulted from mining, natural processes, or both. Id. USGS also found that floods, flash floods, and debris flows caused by winter storms and intense summer thunderstorms transported substantial volumes of trace elements and radionuclides. Id.
USGS also evaluated an additional 1,014 water samples from 428 sites and found that about 70 sites exceeded the primary or secondary maximum contaminant levels forcertain major ions and trace elements such as arsenic, iron, lead, manganese, radium, sulfate, and uranium. AR 10. USGS noted that fractures, faults, sinkholes, and breccia pipes occur throughout the area and are potential pathways for downward migration of contaminants, but concluded that a more thorough investigation is required to understand groundwater flow paths, travel times, and contributions from mining. AR 9-10.
In addition to this analysis of potential contamination, the FEIS found that the "no action" alternative would result in significantly more mining activity than would occur under the full Withdrawal: 19 more uranium mines, 211,280 more ore truck trips, 16 more miles of power lines, 1,200 more acres disturbed for mining, and 200,000,000 more gallons of water used in mining. AR 2774. This was true even though some uranium mining would continue under the Withdrawal. Id.
One common problem was encountered by all of the withdrawal studies: the size of the proposed withdrawal area and its location as remote forest and rural land meant that relatively little data was available for analysis. The FEIS and ROD acknowledged this lack of information. See, e.g., AR 9; AR 2070-71. In particular, these documents noted uncertainty about the potential impacts of uranium mining on perched and deep aquifers, including the R-aquifer (the principal aquifer in the area), and about the effects of increased radionuclide exposure on plants and animals. AR 10.
In the face of these uncertainties, the FEIS and ROD adopted "a cautious and careful approach." AR 9. This approach was deemed warranted for several reasons, expressed in these words by the ROD:
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