Yount v. Salazar

• Decision Date: 08 January 2013
• Docket Number: No. CV12-8075 PCT DGC,No. CV11-8171-PCT DGC,No. CV12-8042 PCT DGC,No. CV12-8038 PCT DGC,CV11-8171-PCT DGC,CV12-8038 PCT DGC,CV12-8042 PCT DGC,CV12-8075 PCT DGC
• Parties: Gregory Yount, Plaintiff, v. Ken Salazar, et al., Defendants. National Mining Association, Plaintiff v. Ken Salazar, et al., Defendants Northwest Mining Association, Plaintiff v. Ken Salazar, et al., Defendants. Quaterra Alaska Incorporated, et al., Plaintiff v. Ken Salazar, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Gregory Yount, Plaintiff,
v.
Ken Salazar, et al., Defendants.
National Mining Association, Plaintiff
v.
Ken Salazar, et al., Defendants
Northwest Mining Association, Plaintiff
v.
Ken Salazar, et al., Defendants.
Quaterra Alaska Incorporated, et al., Plaintiff
v.
Ken Salazar, et al., Defendants.

No. CV11-8171-PCT DGC
No. CV12-8038 PCT DGC
No. CV12-8042 PCT DGC
No. CV12-8075 PCT DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: January 8, 2013

(Lead case)

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On November 1, 2011, Plaintiff Gregory Yount, a self-employed prospector and miner, filed a pro se complaint seeking declaratory and injunctive relief in response to Defendants' actions withdrawing more than one million acres of federal land in Northern Arizona from mining location and entry activities. Doc. 1, amended by Doc. 27. Other Plaintiffs in the above-captioned actions - the National Mining Association ("NMA") and the Nuclear Energy Institute ("NEI"); the Northwest Mining Association ("NWMA"); Quaterra Alaska, Inc. and Quaterra Resources, Inc. (collectively "Quaterra"); and the Arizona Utah Local Economic Coalition ("the Coalition"), on behalf of the Board of Supervisors of Mohave Country, Arizona ("Mohave County"), also filed complaints challenging the withdrawal. On August 20, 2012, the Court consolidated the cases and permitted Vane Minerals, LLC ("Vane Minerals") to intervene as a plaintiff. Doc. 56.

Defendants Kenneth L. Salazar, Secretary of the Department of the Interior; the Department of the Interior ("DOI"); the Bureau of Land Management ("BLM"); the Forest Service; and the Department of Agriculture (collectively, "Defendants") have filed motions to dismiss each of these actions. The Court held oral argument on October 26, 2012. For the reasons set forth below, the Court will grant the motions in part and deny them in part.

I. Relevant Statutory and Regulatory Scheme.

Pursuant to the General Mining Law of 1872, 30 U.S.C. § 22, "all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase[.]" Vacant public land is "open to prospecting, and upon discovery of mineral, to location and purchase." 43 C.F.R. § 3811.1. To locate a mining claim, a person establishes the boundaries of the land claimed and records a notice or certificate of location. 43 C.F.R. § 3832.1. The claim is not valid until a discovery is made within the boundaries of the claim. 43 C.F.R. § 3832.11. "If the validity of the claim is contested, the claimant must prove that he has made a 'discovery' of a valuable mineral deposit thereon." McCall v. Andrus, 628 F.2d 1185, 1188 (9th Cir. 1980),

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abrogated on other grounds by Miranda v. Anchondo, 684 F.3d 844, 846 (9th Cir. 2012).

There is a "distinction between the exploration work which must necessarily be done before a discovery, and the discovery itself." Converse v. Udall, 399 F.2d 616, 621 (9th Cir. 1968). Proof of discovery is judged by the prudent person test. "Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met." Chisman v. Miller, 197 U.S. 313, 322 (1905). The mineral must be physically exposed to constitute a valid discovery. Wilderness Society v. Dombeck, 168 F.3d 367, 375 (9th Cir. 1999).

"The Secretary of the Interior is charged with seeing that valid claims are recognized, invalid ones eliminated, and the rights of the public preserved." United States v. Coleman, 390 U.S. 599, 600 n.1 (1968) (internal quotation, ellipses, and brackets omitted). Under § 204(c) of the Federal Land Policy and Management Act ("FLPMA"), the Secretary may withdraw federal land "from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values." 43 U.S.C. § 1702(j). For withdrawals of more than 5,000 acres, the Secretary must notify both houses of Congress and provide them with a comprehensive report of the withdrawal. Id. at § 1714(c)(1)-(2). The statute states that Congress may terminate the withdrawal by adopting a concurrent resolution within 90 days. Id. at § 1714(c)(1). Withdrawals by the Secretary are limited to twenty years. Id.

Land withdrawals under the FLPMA are subject to valid existing rights, 43 U.S.C. § 1701, Note (h), but the BLM or another federal land management agency must conduct a mineral examination before allowing the development of noticed claims. See, e.g., 43 C.F.R. § 3809.100(a) (BLM regulations). The purpose of this examination is to determine whether the claimant had a valid claim before withdrawal and whether the claim remains valid. Id. Because the right to prospect for minerals ceases on the date of

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withdrawal, a discovery must have existed - meaning that minerals must have been exposed - by the date of withdrawal. Lara v. Sec'y of Interior, 820 F.2d 1535, 1542 (9th Cir. 1987).

II. Background

On July 21, 2009, Secretary Salazar 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"). The 2009 Notice had the effect of withdrawing the land from location and entry for up to two years to allow time for analysis, including environmental analysis under the National Environmental Protection Act ("NEPA"). Id.

On August 26, 2009, the BLM, an agency within DOI, published notice of its intent to prepare an Environmental Impact Statement ("EIS") under NEPA addressing the proposed withdrawal. 74 Fed. Reg. 43,152 (Aug. 26, 2009). The purpose of the withdrawal as explained in the notice was "to protect the Grand Canyon watershed from adverse effects of locatable mineral exploration and mining, except for those effects stemming from valid existing rights." Id. at 43,152-53.

On February 18, 2011, after soliciting public comments, the BLM issued a notice of availability of a Draft EIS. 76 Fed. Reg. 9,594 (Feb. 18, 2011). The Draft EIS considered four alternatives in detail: a "No Action" alternative; the withdrawal of approximately 1,010,776 acres for 20 years; the withdrawal of approximately 652,986 acres for 20 years; and the withdrawal of 300,681 acres for 20 years. Id. at 9,595. After an additional, extended opportunity for public comment, the BLM published a notice of availability of the Final EIS on October 27, 2011. 76 Fed. Reg. 66,747 (Oct. 27, 2011). The Secretary issued a Record of Decision ("ROD") on January 9, 2012, choosing to "withdraw 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." See No. 3:12-cv-08042, Doc. 27-1 at 3.

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Plaintiffs have filed claims under the FLPMA, NEPA, the National Forest Management Act ("NFMA"), and the Establishment Clause of the United States Constitution. Plaintiffs ask the Court to set aside the Secretary's withdrawal decision as arbitrary and capricious under the Administrative Procedure Act ("APA"). Plaintiffs NWMA, NMA, and NEI also challenge the constitutionality of the FLPMA provision from which the Secretary derived his authority to make the withdrawal, and ask the Court to set aside the withdrawal as unconstitutional.

Defendants move to dismiss Plaintiffs' complaints under Rule 12(b)(1) on the following grounds: (1) Plaintiffs lack Article III standing to challenge the withdrawal, (2) Plaintiffs' claims are not ripe, (3) Plaintiffs lack prudential standing under NEPA, and (4) Plaintiffs lack standing to challenge the constitutionality of the FLPMA. The Court will address each of these arguments as they apply to individual plaintiffs.

III. Article III Standing.

The burden of establishing standing falls on the party asserting federal jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). "Standing includes two components: Article III constitutional standing and prudential standing." Yakima Valley Mem'l Hosp. v. Wash. State Dep't of Health, 654 F.3d 919, 932 (9th Cir. 2011). The "core component of standing" is the case-or-controversy requirement found in Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Constitutional standing requires a plaintiff to "demonstrate that he has suffered 'injury in fact,' that the injury is 'fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162 (1997). Prudential standing examines whether "a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit." City of Sausalito v. O'Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).

To seek injunctive relief, a party must establish a present injury or an "actual and imminent" - not "conjectural or hypothetical" - threat of future injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Such injury must be present "at the

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commencement of the litigation." Davis v. Fed. Election Comm'n, 554 U.S. 724, 732...