Grand Canyon Trust et al v. Williams et al

Filing 166

ORDER - 1. Defendants' and Defendant-Intervenors' motions for summary judgment are granted on all counts. Docs. 146 , 147 . 2. Plaintiffs' motion for summary judgment is denied. Doc. 140 . 3. The Clerk shall enter judgment and terminate this action. (See document for further details). Signed by Judge David G Campbell on 4/7/15. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Grand Canyon Trust, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-13-08045-PCT-DGC Michael Williams, et al., 13 Defendants. 14 15 16 The parties have filed cross-motions for summary judgment. Docs. 140, 146, 147. 17 The motions are fully briefed and the Court heard oral argument on March 18, 2015. For 18 the reasons stated below, Defendants’ and Defendant-Intervenors’ motions for summary 19 judgment will be granted and Plaintiffs’ motion for summary judgment will be denied. 20 I. Background. 21 Plaintiffs include the Havasupai Tribe and various environmental groups: Grand 22 Canyon Trust, Center for Biological Diversity, and the Sierra Club. Defendants are the 23 United States Forest Service; Michael Williams, Supervisor of the Kaibab National 24 Forest; and Intervenors Energy Fuels Resources (USA), Inc. and EFR Arizona Strip, 25 LLC. 26 This case arises out of the proposed renewal of operations at the Canyon Mine in 27 Northern Arizona. The Canyon Mine is a breccia pipe uranium mine located six miles 28 south of Grand Canyon National Park, in the Kaibab National Forest, and four miles 1 north of Red Butte, a culturally and religiously significant site for the Havasupai and 2 other tribes. Doc. 115 ¶¶ 2, 49. 3 In October 1984, Energy Fuels Nuclear, Inc. (“EFN”) submitted to the Forest 4 Service a proposed Plan of Operations for the Canyon Mine (the “Plan”). A.R. 193-221. 5 Pursuant to the National Environmental Policy Act (“NEPA”), the Forest Service 6 completed an Environmental Impact Statement (“EIS”) to address the potential 7 environmental impacts to the area and considered input from federally recognized Indian 8 tribes. A.R. 461-693. On September 26, 1986, the Forest Service issued a Record of 9 Decision (“ROD”) approving a modified version of the Plan. A.R. 915-29. Several 10 administrative appeals followed (A.R. 3932), and the Deputy Regional Forester and Chief 11 of the Forest Service both affirmed the ROD. 12 The Havasupai Tribe filed a federal court lawsuit challenging approval of the 13 Canyon Mine. See Havasupai Tribe v. United States, 752 F. Supp. 1471 (D. Ariz. 1990). 14 Among other arguments, the tribe claimed that the EIS failed to comply with NEPA.1 15 Following a thorough analysis of the EIS, the ROD, and the administrative record, the 16 District Court granted summary judgment in favor of the Forest Service. Id. at 1489- 17 1505. The Ninth Circuit affirmed in August of 1991. See Havasupai Tribe v. United 18 States, 943 F.2d 32 (9th Cir. 1991). 19 Shortly thereafter, EFN began constructing the mine. EFN built access roads, 20 storage buildings, a power line, a perimeter fence, diversion structures, a holding pond, a 21 head frame and hoist, and support buildings. A.R. 10487; Doc. 146-1 at 17; Hangan 22 Declaration, Doc. 53-4, ¶ 4.2 Work on the mine shaft was started, and proceeded to a 23 1 24 25 26 27 The tribe’s specific NEPA arguments included the following: the EIS (1) failed to consider the “no-action alternative” of not approving the Plan; (2) failed to give adequate consideration to the tribe’s religious and cultural interests in the site; (3) was based on incomplete hydrogeological information; (4) failed to adequately consider the environmental impact of disposal of radioactive waste; and (5) failed to adequately consider the environmental cumulative impacts of mining in the region. Havasupai Tribe, 752 F. Supp. at 1490. 2 28 When the Court cites to page numbers in documents filed in the docket (Doc.), the citation will be to numbers at the top of the page assigned by the Court’s CM/ECF system, not to numbers at the bottom of the page as assigned in the original document. -2- 1 depth of 50 feet. A.R. 10487. When uranium prices fell in 1992, EFN placed the mine 2 on stand-by status. For the next several years the mine was maintained under the interim 3 management portions of the Plan. A.R. 10314. 4 In 2010, the Forest Service designated Red Butte and the surrounding area, 5 including the location of the Canyon Mine, as a Traditional Cultural Property (“TCP”), 6 thereby making it eligible to be included in the National Register of Historic Places due 7 to its “ongoing, and historic cultural and religious significance to multiple tribes.” 8 A.R. 10616. 9 In January 2012, the Secretary of the Department of the Interior (“DOI”), pursuant 10 to the Federal Land Policy and Management Act (“FLPMA”), 42 U.S.C. § 1714(a), 11 withdrew approximately 633,547 acres of public lands and 360,002 acres of National 12 Forest System lands for up to 20 years from location and entry under the Mining Law 13 of 1872 (the “Withdrawal”). 77 Fed. Reg. 2317- 01 (Jan. 17, 2012); A.R. 10308-31. The 14 Withdrawal, which included the location of the Canyon Mine, had been proposed by DOI 15 in 2009. 74 Fed. Reg. 35,887-01 (July 21, 2009). The DOI undertook extensive study 16 and preparation of an EIS before finalizing the Withdrawal. The final EIS noted the 17 existence of the Canyon Mine and stated its assumption that the mine would continue 18 operations. A.R. 8657. 19 In August 2011, Energy Fuels Resources (USA), Inc. (“Energy Fuels”), a 20 successor owner of the Canyon Mine, notified the Forest Service that it intended to 21 resume operations under the Plan approved in 1986. A.R. 8547. In response, the Forest 22 Service decided to complete a valid existing rights determination (“VER Determination”) 23 with respect to the Canyon Mine. The purpose of the VER Determination was to confirm 24 that the owner had valid rights to the uranium mineral deposits. Although Energy Fuels 25 had asserted in its initial letter to the Forest Service that it did not believe any additional 26 government approvals were required before the mine reopened (A.R. 443), Energy Fuels 27 agreed to withhold shaft sinking until the VER Determination was complete (Doc. 123-2 28 at 2-3). The VER Determination was finished on April 18, 2012, and found that Energy -3- 1 Fuels had valid existing mineral rights at the Canyon Mine. A.R. 10483-528. 2 The Forest Service also undertook a “Mine Review.” A.R. 10592-637. The 3 review was conducted by a 13-person interdisciplinary team with expertise in minerals 4 and geology, surface and groundwater, air quality, transportation, tribal consultation, 5 heritage resources, vegetation, NEPA, and socioeconomic issues. A.R. 10597. Among 6 other matters, the team evaluated the sufficiency of the Plan and the original EIS and 7 ROD; historical and religious issues related to local tribes, including tribal consultation in 8 connection with the EIS and ROD; sensitive tribal sites, including Red Butte; the effect 9 of resumed operations on the quality of air, surface water, and groundwater; and the 10 effect of resumed mine operations on wildlife and any threatened, endangered, or 11 sensitive species. A.R. 10592-637. 12 The Mine Review was completed on June 25, 2012, and concluded that operations 13 could resume at the Canyon Mine under the original Plan. The Mine Review made this 14 finding: 15 16 17 18 19 20 21 22 [T]he Forest [Service] undertook a review of the 1986 Environmental Impact Statement and Record of Decision, and associated documents. Resource specialists from the Kaibab National Forest and Southwestern Regional Office reviewed the documents to determine if any modification or amendment of the existing Plan of Operations was required and whether there was any new information or changed circumstances indicating unforeseen significant disturbance of surface resources. It was determined that no amendment or modification of the Plan of Operation was required. . . . Therefore, [Energy Fuels] will resume operations under the existing Plan of Operations. A.R. 10594.3 23 Upon learning that the mine would be reopened, the Arizona State Historic 24 Preservation Office (“AZSHPO”) advised the Forest Service that it should undertake a 25 full consultation under § 106 of the National Historic Preservation Act (“NHPA”), 16 26 27 28 3 The Mine Review also concluded that the Plan remained in effect in 2012. “According to the regulations, the plan covers the entire operation and is in effect from approval until the time that final reclamation is completed. . . . The approved 1986 [Plan] is currently in effect.” A.R. 10598. -4- 1 U.S.C. § 470f. A.R. 10139. Section 106 requires a federal agency charged with issuing a 2 federal license for an “undertaking” to consult with various interested parties and 3 evaluate the potential effects on TCPs, including identification of the affected properties, 4 a determination of the potential adverse effects to the properties, and an identification of 5 methods of mitigation. 36 C.F.R. §§ 800.2-800.7. 6 The Mine Review concluded that a full § 106 process was not necessary. 7 A.R. 10593-637. Instead, the Forest Service undertook a reduced consultation process 8 under 36 C.F.R. § 800.13(b)(3). The Forest Service sent letters to tribal leaders as well as 9 the Advisory Council on Historic Preservation (“ACHP”), notifying them of renewed 10 operations at the Canyon Mine and offering to meet and discuss potential adverse effects 11 to the environment and areas of religious and cultural significance. A.R. 10690-91. The 12 tribes and the ACHP urged the Forest Service to undertake a full § 106 review, but the 13 Forest Service declined. A two-day consultation meeting was held with the tribes in 14 January 2013. 15 Plaintiffs filed this lawsuit on March 7, 2013, seeking declaratory and injunctive 16 relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Doc. 1. 17 Plaintiffs’ amended complaint alleges four claims: (1) the Forest Service violated NEPA 18 by not conducting an EIS in connection with the VER Determination; (2) the Forest 19 Service violated the NHPA by failing to complete a full § 106 review prior to approving 20 resumed operations at the Canyon Mine; (3) the Forest Service violated the NHPA by 21 conducting a review under § 800.13(b)(3); and (4) the VER Determination failed to 22 consider all relevant cost factors and therefore is arbitrary, capricious, and not in 23 accordance with the law. All parties move for summary judgment. 24 II. Standard of Review. 25 The APA allows a court to compel agency action unlawfully withheld or 26 unreasonably delayed. 5 U.S.C. § 706(1). A claim to compel action may proceed “only 27 where a plaintiff asserts that an agency failed to take a discrete agency action that it is 28 required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) -5- 1 (emphasis in original); see Hells Canyon Preservation Council v. U.S. Forest Serv., 593 2 F.3d 923, 932 (9th Cir. 2010). 3 A court may set aside a final agency action under the APA only if it is “arbitrary, 4 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 5 § 706(2)(A). “This standard of review is ‘highly deferential, presuming the agency 6 action to be valid and affirming the agency action if a reasonable basis exists for its 7 decision.’” Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 8 (9th Cir. 2007) (quoting Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 9 (9th Cir. 2000)). The APA does not allow a court to overturn an agency action simply 10 because the court disagrees with the action. 11 Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). 12 III. See River Runners for Wilderness v. Was the VER Determination Required? 13 Plaintiffs argue that the VER Determination was required by law because of the 14 Withdrawal, and therefore constituted “agency action” reviewable under the APA, a 15 “major federal action” that triggered NEPA, and an approval of a new “undertaking” that 16 triggered § 106 review under the NHPA. Because the nature of the VER Determination 17 affects so many issues in this case, the Court will address it before considering other 18 arguments made in the summary judgment briefing. 19 A. 20 The purpose of the VER Determination was to evaluate whether the owners of the 21 Canyon Mine had valid legal rights to the uranium ore they would be mining. As part of 22 the Determination, certified mineral examiners employed by the Forest Service visited 23 the mine site, reviewed mining claims records, evaluated ore deposits, toured facilities 24 operated by the owner, and conducted an economic evaluation of the mine. A.R. 10482- 25 527. The examiners concluded that the mining claims “were valid at the time of the 26 [Withdrawal] and continue to be valid at the present time.” A.R. 10482. Nature of the VER Determination. 27 The Forest Service completed the VER Determination before approving renewed 28 operations at the Canyon Mine, but the determination itself had no binding legal effect. -6- 1 The Forest Service does not have responsibility for determining the validity of mining 2 claims on federal lands. 3 specifically to the Bureau of Land Management (“BLM”) within the DOI (the Forest 4 Service is in the Department of Agriculture). The DOI, not the Forest Service, has 5 adjudicative authority to declare mining claims valid or invalid. Cameron v. United 6 States, 252 U.S. 450, 460 (1920) (Secretary of Interior charged with determining validity 7 of mining claims); Forest Service Manual (“FSM”) § 2814.11 (A.R. 7284). That responsibility has been delegated to the DOI, and 8 Because the Forest Service supervises vast stretches of federal land that include 9 mining operations, however, it can perform VER Determinations under an interagency 10 agreement with BLM. FSM § 2814.11 (A.R. 7284); Linden Declaration, Doc. 53-2, ¶ 6. 11 These determinations are made for internal purposes. 12 explains, they enable the Forest Service to make “a decision on whether or not to contest 13 the claim.” FSM § 2819.1 (A.R. 7312). But the actual claim contest must be adjudicated 14 by BLM and the DOI. FSM §§ 2814.11, 2819.1 (A.R. 7284, 7312). As the Forest 15 Service Manual confirms: “No adjudicative power has been given to the Forest Service. 16 Thus, statements about validity [of mining claims] are statements of belief and not formal 17 determinations.” FSM § 2819 (A.R. 7311). As the First Service Manual 18 Plaintiffs do not dispute these basic facts. They argue, however, that things 19 changed when the land on which the Canyon Mine is located was withdrawn by the 20 Secretary of the Interior. They argue that the Withdrawal, not statutes or regulations 21 governing mining generally, required that a VER Determination be completed before the 22 Canyon Mine could resume operations. 23 B. 24 The Withdrawal affected more than one million federally-owned acres north and 25 south of the Grand Canyon, closing them to mineral location and entry for a period of 20 26 years. 77 Fed. Reg. 2317-01 (Jan. 17, 2012); A.R. 10308-31. The Withdrawal did not 27 prohibit all uranium mining on the withdrawn lands. Rather, it prohibited “location and 28 entry,” which is the process by which an individual enters public lands to find and Legal Effect of the Withdrawal. -7- 1 establish a valid mining claim. Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 2 750 n.3 (D.C. Cir. 2007). 3 Prior to the Withdrawal, the lands were open for location and entry. The Mining 4 Law of 1872 provides that “all valuable mineral deposits in lands belonging to the United 5 States . . . shall be free and open to exploration and purchase[.]” 30 U.S.C. § 22. 6 Individuals can enter federal land, explore for minerals, and stake their right to a claim by 7 “[e]stablishing the exterior lines of a mining claim or site” and “[r]ecording a notice or 8 certificate of location.” 43 C.F.R. § 3832.1. Such claims can then become the subject of 9 proposed plans for the operation of a mine. The Withdrawal removed the land from this 10 open exploration and claim process and thereby foreclosed the establishment of new 11 mining claims in the future. 12 The Withdrawal did not extinguish mining rights that already existed. To the 13 contrary, it was “subject to valid existing rights.” A.R. 10310. This means that existing 14 mines like the Canyon Mine could continue to operate. Indeed, the Withdrawal’s EIS 15 specifically contemplated that four uranium mines, including the Canyon Mine, would 16 continue in operation. A.R. 10314 (“There are four mines within the withdrawal area that 17 have approved plans of operations that predate the Secretary’s withdrawal proposal. The 18 Pinenut, Kanab North, and Canyon mines were approved in the late 1980s and are 19 operating under the interim management plans[.]”). 20 The Withdrawal also contemplated that claim owners with valid existing rights at 21 the time of the Withdrawal, but no operating mine, could submit a plan of operation for a 22 uranium mine for approval: 23 24 25 26 27 28 Withdrawals under section 204 of the FLPMA must be made subject to valid existing rights, which means that new mineral exploration and development could still be authorized under the withdrawal on valid existing mining claims. The . . . scenarios developed for the EIS indicate that potentially 11 mines could develop with a full withdrawal, including the four mines currently approved[.] A.R. 10314-15. -8- 1 The Withdrawal also addressed when VER Determinations would be required. It 2 stated that new plans of operations would be approved only if BLM or the Forest Service 3 first determined that the parties submitting the plans had valid existing mineral rights at 4 the time of the Withdrawal: 5 6 7 8 9 On withdrawn lands, neither the BLM nor the Forest Service will process a new . . . plan of operations until the surface managing agency conducts a mineral examination and determines that the mining claims on which the surface disturbance would occur were valid as of the date the lands were . . . withdrawn. Id. (emphasis added). 10 This is consistent with relevant regulations and guidance documents. 11 regulations specifically address the rules that apply to withdrawn lands. They state that, 12 after the date of a withdrawal, “BLM will not approve a plan of operations . . . until BLM 13 has prepared a mineral examination report.” 43 C.F.R. § 3809.100(a) (emphasis added). 14 They do not suggest that a VER Determination is required for an already-approved plan 15 of operations. 16 17 18 19 20 21 22 BLM Section 8.1.5 of the BLM Surface Management Handbook addresses previously approved plans: [A]pproved Plans of Operations that were in place prior to the withdrawal or segregation date are not subject to the mandatory valid existing rights determination procedures at 43 C.F.R. 3809.100(a). These operations may continue as accepted or approved and do not require a validity determination unless or until there is a material change in the activity. . . . A.R. 11602. 23 This guidance comes from BLM, not the Forest Service. But as noted above, 24 BLM is the primary agency responsible for determining mining claim validity, and its 25 parent, DOI, is the agency that withdrew the lands at issue in this case. The guidance of 26 BLM on the effect of the Withdrawal is therefore highly relevant. In addition, when the 27 Forest Service was asked in a public forum whether it had regulations specifying when a 28 VER Determination would be required on withdrawn lands, it provided this answer: -9- 1 2 3 4 5 6 The Department of Interior (BLM) is the adjudicator of mining claims for the federal mineral estate including minerals located on National Forest System Lands. The BLM does have regulations addressing when to require a valid existing rights determination for lands that have been segregated or withdrawn at 43 C.F.R. 3809.100(a). It is the policy of the Forest Service to be consistent with BLM direction. Once the lands have been segregated or withdrawn, the Forest Service will not approve a plan of operation without first determining if valid existing rights exist. 7 8 A.R. 7691 (emphasis added); see also Linden Declaration, Doc. 53-2, ¶¶ 6-7. 9 From these sources, the Court concludes that a VER Determination was not 10 legally required before operations at the Canyon Mine could resume. The Canyon Mine 11 Plan of Operations had been approved in 1986. A resumption of operations at the mine 12 did not require approval of a new plan. 13 statements did not require a VER Determination. Thus, the relevant regulations and policy 14 Plaintiffs argue that the Withdrawal was “subject to valid existing rights” 15 (A.R. 10310) and that a VER Determination was therefore required. But there is a 16 difference between valid existing rights and a valid existing rights determination, and 17 neither the Withdrawal nor the FLPMA requires a determination. The fact that the 18 Withdrawal was “subject to valid existing rights” meant that it did not extinguish valid 19 rights in existence at the time of the Withdrawal; it says nothing about when or how a 20 review of those rights must occur. When the Withdrawal did address the requirement of 21 VER Determinations, it said they would be required only for “new” plans of operations. 22 A.R. 10314-15. 23 Plaintiffs also cite to a statement from § 2803 of the Forest Service Manual which 24 directed the Service to “[e]nsure that valid existing rights have been established before 25 allowing mineral or energy activities in congressionally designated or withdrawn areas.” 26 Doc. 140-5 at 2. 27 complete a VER Determination before any mineral activity can occur on withdrawn 28 lands, even activity at an already-approved mine. The Court does not read the sentence Plaintiffs argue that this sentence requires the Forest Service to - 10 - 1 so broadly. In light of the very specific guidance provided in the BLM regulations and 2 Handbook, and the Forest Service’s publicly stated policy of following that guidance, the 3 Court reads the word “allowing” in this sentence to mean that the Forest Service will not 4 allow new mining activities on withdrawn lands without first completing a VER 5 Determination. This reading comports with the Forest Service’s own statement that 6 “[o]nce the lands have been segregated or withdrawn, the Forest Service will not approve 7 a plan of operation without first determining if valid existing rights exist.” A.R. 7691 8 (emphasis added). 9 Determination only for a “new” plan of operations. A.R. 10314-15.4 It also squares with the Withdrawal’s requirement of a VER 10 In summary, because no new plan was required for the Canyon Mine after the 11 Withdrawal, the relevant regulations and guidance documents did not require a VER 12 Determination. Mining could have resumed without one. 13 C. 14 Although not a legal requirement, the record suggests that completion of the VER 15 Determination was a practical requirement before the Canyon Mine resumed operations. 16 On September 23, 2011, the Forest Supervisor, Michael Williams, wrote a letter to the 17 executive vice president of Energy Fuels. Mr. Williams explained that ‘[a] mineral exam 18 is scheduled to determine if your company has valid existing rights for the Canyon Mine 19 location. This is a requirement for any public domain lands managed by the Forest 20 Service that have been withdrawn from mineral entry[.]” A.R. 12429; Doc. 126-12 at 1. The Practical Effect of the VER Determination. 21 In a conference call with the Kaibab Paiute Tribe on January 10, 2012, in which 22 Mr. Williams participated, an employee of the Forest Service explained that “the mineral 23 exam will need to be completed before they start work at the Canyon Mine.” 24 A.R. 10335; Doc. 118-15 at 1. The next day, in a telephone conversation with the 25 26 27 28 4 The Court reaches the same conclusion with respect to § 2813.3 of Forest Service Manual cited by Plaintiffs: “Otherwise the use of validity determinations should be limited to situations where valid existing rights must be verified where the lands in question have been withdrawn from mineral entry[.]” A.R. 7310. The “situations” where such rights must be verified, as shown above, are the approval of new mining operations on withdrawn lands. - 11 - 1 Hualapai Tribe, Mr. Williams stated that Energy Fuels “would not be able to move 2 forward without VER under the mineral withdrawal.” A.R. 10342; Doc. 118-18 at 1. 3 The VER Determination itself suggested that it was required for renewed 4 operation of the mine: “It is Forest Service policy (FSM 2803.5) to only allow operations 5 on mining claims within a withdrawal that have valid existing rights (VER).” 6 A.R. 10486; see also 10487, 10489. Although this statement is correct to the extent it 7 suggests that mining operations on withdrawn lands must have valid existing rights, it is 8 incorrect, for the reasons explained above, to the extent it suggests that a VER 9 Determination was legally required before the Canyon Mine could resume operations. 10 The Forest Service concedes that the legal understanding of some of its employees was 11 incorrect, but this does not change the fact that these employees took the position with 12 Energy Fuels and the tribes that a VER Determination was required. 13 Other communications make clear that Energy Fuels chose not to proceed with 14 renewed operations until the VER Determination was finished. A letter from Energy 15 Fuels’ executive vice president to Forest Service employees concerning the process of the 16 VER Determination stated: “We would like to get the sample analysis turned around as 17 early as possible so that we can hopefully close this out and proceed with our production 18 plans.” Doc. 118-16 at 1. An email from a Forest Service employee to representatives of 19 the Kaibab Paiute Tribe, sent the day after the January 10, 2012 conference call 20 mentioned above, contained this statement: “I called our geologist, and was told that 21 [Energy Fuels] will not be doing any ‘shaft sinking’ at the site until the mineral exam is 22 completed.” A.R. 10348; Doc. 126-13 at 1. 23 Thus, even though the law did not require the VER Determination, these 24 communications show that the Forest Service, Energy Fuels, and interested tribes all 25 understood that mine operations would not resume until it was completed. It was a 26 practical if not a legal requirement. 27 IV. 28 Threshold Matters. Defendants raise four threshold matters: (1) Plaintiffs lack Article III standing on - 12 - 1 two claims, (2) Plaintiffs lack prudential standing on claim four, (3) the VER 2 Determination is not a final agency action subject to judicial review, and (4) collateral 3 estoppel bars two claims. 4 A. 5 “To satisfy Article III’s standing requirements, a plaintiff must show (1) it has 6 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or 7 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 8 challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, 9 that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. 10 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. 11 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Article III Standing. 12 Defendants argue that Plaintiffs lack standing to bring claims one and four. Claim 13 one asserts that the Forest Service, in completing the VER Determination, violated NEPA 14 by not conducting an EIS. Claim four asserts that the VER Determination failed to 15 account for several costs. Defendants argue that Plaintiffs’ “concrete interests” stem not 16 from the VER Determination, but from the Plan approved in 1986. Several of the 17 declarations submitted by Plaintiffs do not address the VER Determination; rather, they 18 appear to seek modification of the Plan. Thus, Defendants argue, Plaintiffs have failed to 19 demonstrate any injury traceable to the VER Determination.5 20 Plaintiffs argue that they suffered “concrete injuries to their environmental, 21 cultural and procedural interests [that] stem directly from the [VER Determination] and 22 the agency’s failure to comply with NEPA and the NHPA.” Doc. 151 at 6. They assert 23 that the VER Determination permitted mining to resume and thus threatens their interests 24 in the land surrounding the Canyon Mine. Plaintiffs have submitted the declarations of 25 5 26 27 28 Defendants also argue that Plaintiffs lack standing to bring claim two. Defendants characterize the claim as a direct challenge to the VER Determination, but claim two asserts that the Forest Service was required to conduct a consultation under § 106 of the NHPA before allowing mining to continue. See Doc. 151 at 7. It does not concern the VER Determination. Defendants’ arguments, which focus entirely on the VER Determination, are therefore insufficient to challenge Plaintiffs’ standing to bring claim two. - 13 - 1 Don Watahomigie and Rex Tilousi on behalf of the Havasupai Tribe, Roger Clark on 2 behalf Grand Canyon Trust, Kim Crumbo on behalf of the Sierra Club, and Robin Silver 3 on behalf of the Center for Biological Diversity. Docs. 37-7, 37-8. They also submitted 4 supplemental declarations of Clark and Silver. Docs. 151-1, 151-2. 5 Declarations of the tribal representatives show that they have historical and 6 religious interests in the lands surrounding the mine and on which the mine is located. 7 The Court concludes that federal action taken without due consideration of environmental 8 or historical impacts of the mine would constitute a concrete and particularized injury to 9 the tribes. 10 “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that 11 they use the affected area and are persons ‘for whom the aesthetic and recreational values 12 of the area will be lessened’ by the challenged activity.” Friends of the Earth, 528 U.S. 13 at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Plaintiffs have done 14 just that. Roger Clark states that resumption of mining “interfere[s] with my enjoyment 15 of the lands within and surrounding Grand Canyon National Park[.]” Doc. 151-1, ¶ 20. 16 He claims he decided not to visit the park on several occasions because of the “constant 17 dust, noise, and traffic from trucks constructing roads and developing the Canyon Mine.” 18 Id., ¶ 6. Robin Silver states that the mining activities “threaten to destroy my aesthetic 19 enjoyment of the Red Butte area due to dust, heavy truck traffic, light pollution and 20 noise,” and also “limit and interfere with my local photographic opportunities.” 21 Doc. 151-2, ¶¶ 12, 13. Silver also notes the environmental impacts caused by mining. 22 Id., ¶¶ 13-17. In addition, several declarants state they are harmed because the Forest 23 Service’s failure to comply with NEPA deprived them of the opportunity to comment on 24 and participate in the Forest Service decision. See Doc. 37-8. 25 Plaintiffs’ declarations are sufficient to establish injury in fact and are fairly 26 traceable to the VER Determination, which they assert permitted mining to resume. See 27 Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001) (“Once a plaintiff has 28 established an injury in fact under NEPA, the causation and redressability requirements - 14 - 1 2 are relaxed.”). Therefore, the first two elements of standing are met. Defendants argue that Plaintiffs have failed to demonstrate the third requirement – 3 redressability. 4 consequences and was not required. If the Court were to invalidate it, they argue, a new 5 VER Determination would not be required and mining would resume. They argue that the VER Determination did not create any legal 6 This redressability position is essentially an argument on the merits. Defendants 7 assert that Plaintiffs will fail to prove that the VER Determination was necessary and 8 therefore invoked NEPA and NHPA requirements, and thus will fail in obtaining relief 9 for their grievances. But the Court cannot consider the merits when deciding standing. 10 The Court must assume the truth of Plaintiffs’ claims and that Plaintiffs will succeed on 11 the merits. See Friends of the Earth, 528 U.S. at 180-81 (the plaintiff must show that the 12 injury will be redressed “by a favorable decision”); Warth v. Seldin, 422 U.S. 490, 503 13 (1975) (court must take the allegations of the complaint as true); City of Waukesha v. 14 E.P.A., 320 F.3d 228, 235 (D.C. Cir. 2003) (“Indeed, in reviewing the standing question, 15 the court must be careful not to decide questions on the merits . . . and must therefore 16 assume that . . . the plaintiffs would be successful in their claims.”). Thus, even though 17 the Court has concluded above, for convenience in the organization of this order, that the 18 VER Determination was not legally required, it must assume that Plaintiffs will prevail 19 when deciding whether they have standing to pursue their claims. 20 If Plaintiffs succeed on their claim that Defendants violated NEPA and the NHPA, 21 the Court will order NEPA and NHPA procedures to be followed. See Pit River Tribe v. 22 U.S. Forest Service, 469 F.3d 768, 779 (9th Cir. 2006). This could certainly redress 23 Plaintiffs’ procedural and aesthetic injuries. Thus, Plaintiffs have satisfied the elements 24 of standing on claims one and four. See W. Watersheds Project v. Kraayenbrink, 632 25 F.3d 472, 482-83 (9th Cir. 2011) (an organization has standing to bring suit on behalf of 26 its members where a member would have standing to sue in his own right, the interests at 27 stake are germane to the organization’s purpose, and neither the claim asserted nor the 28 - 15 - 1 relief requested requires participation of the member in the suit).6 2 B. 3 Defendants argue that Plaintiffs lack prudential standing to bring claim four, 4 which challenges the substance of the VER Determination. At oral argument, Plaintiffs 5 stated that claim four is tied to the Mining Law of 1872, which sets forth the process by 6 which miners establish valid rights to mineral deposits.7 30 U.S.C. §§ 22-54. Prudential Standing on Claim Four. 7 To establish their alleged violation of the Mining Law, Plaintiffs cite several cases 8 articulating and applying tests for determining whether mining claims are valid. See, e.g., 9 Independence Min. Co. v. Babbitt, 105 F.3d 502, 506-07 (9th Cir. 1997) (a validity 10 determination requires the mineral examiner to do a “field examination; collect and 11 analyze samples; estimate the value of the mineral deposit and the cost of extracting, 12 processing and marking the minerals, including the costs of complying with any 13 environmental and reclamation laws”); Lara v. Sec’y of Interior, 820 F.2d 1535, 1541 14 (9th Cir. 1987) (applying “prudent-man test”); Hjelvik v. Babbitt, 198 F.3d 1072, 1074 15 (9th Cir. 1999) (applying “marketability test”). They also cite Interior Board of Land 16 Appeals decisions on the nature of valid claims. See, e.g., Great Basin Mine Watch, 146 17 IBLA 248 (1999); Moon Mining v. HECLA Mining, 161 IBLA 334 (2004). Plaintiffs 18 argue that the Court should apply this law to the VER Determination and find it deficient. 19 But the Supreme Court has “interpreted [§ 702] of the APA to impose a prudential 20 6 21 22 23 24 25 26 27 28 The Court also notes that one who challenges the violation of “a procedural right to protect his concrete interests can assert that right without meeting all the normal standards” for traceability and redressability. Lujan, 504 U.S. at 572 n. 7. Such a litigant need only demonstrate that he has “a procedural right that, if exercised, could protect [his] concrete interests and that those interests fall within the zone of interests protected by the statute at issue.” Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005), rev’d in part on other grounds by Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007); see also Natural Res. Def. Council v. Jewell, 749 F.3d 776, 782-83 (9th Cir. 2014). Plaintiffs’ NEPA and NHPA claims satisfy this requirement. 7 Alternatively, Plaintiffs assert that claim four is brought as a stand-alone APA claim. Such a claim fails because “there is no right to sue for a violation of the APA in the absence of a ‘relevant statute’ whose violation ‘forms the legal basis for [the] complaint.’” El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990)). - 16 - 1 standing requirement” in addition to the requirements of Article III. Nat’l Credit Union 2 Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488 (1998). “For a plaintiff to 3 have prudential standing under the APA, ‘the interest sought to be protected by the 4 complainant [must be] arguably within the zone of interests to be protected or regulated 5 by the statute . . . in question.’” Id. (quoting Ass’n of Data Processing Serv. Orgs. v. 6 Camp, 397 U.S. 150, 153 (1970)). This test “is not meant to be especially demanding; in 7 particular, there need be no indication of congressional purpose to benefit the would-be 8 plaintiff.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399-400 (1987). But APA 9 claims cannot be asserted when “the plaintiff is not the subject of the contested regulatory 10 action” and “the plaintiff’s interests are so marginally related to or inconsistent with the 11 purposes implicit in the statute that it cannot be reasonably assumed that Congress 12 intended to permit the suit.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 13 (9th Cir. 2005) (quoting Clarke, 479 U.S. at 399). Importantly, “whether a plaintiff’s 14 interest is within the zone of interests protected by a statute ‘is to be determined not by 15 reference to the overall purpose of the Act in question . . . , but by reference to the 16 particular provision of law upon which the plaintiff relies.’” Id. (quoting Bennett, 520 17 U.S. at 175-76). 18 The Court is not aware of any case applying the “zone of interests” test to the 19 Mining Law, and the parties have cited none. The Court must therefore look to the 20 “obvious purpose” of the “particular provision” to which Plaintiffs tie their claim, 21 Bennett, 520 U.S. at 176, and determine whether Plaintiffs’ interests “are among the sorts 22 of interests [the statute was] specifically designed to protect,” Nat’l Wildlife Fed’n, 497 23 U.S. at 886. 24 Section 22 of the Mining Law provides that “all valuable mineral deposits in lands 25 belonging to the United States, both surveyed and unsurveyed, shall be free and open to 26 exploration and purchase[.]” 30 U.S.C. § 22. “[A] private citizen may enter federal lands 27 to explore for mineral deposits” and, if a discovery is made, “perfect[] the claim by 28 properly staking it and complying with other statutory requirements.” California Coastal - 17 - 1 Comm. v. Granite Rock Co., 480 U.S. 572, 575 (1987). The Mining Law’s “obvious 2 intent was to reward and encourage the discovery of minerals that are valuable in an 3 economic sense.” United States v. Coleman, 390 U.S. 599, 602 (1968). 4 Plaintiffs do not fall within the zone of interests protected or regulated by the 5 Mining Law. That law regulates mineral interests and provides procedures by which 6 mining claims may be discovered and protected. The purpose of a VER Determination, 7 including the determination in this case, is to confirm that valid mineral rights have been 8 acquired. Plaintiffs’ interests are environmental and historical. They do not claim to 9 hold mineral rights at the Canyon Mine site, nor do they assert economic interests in 10 those mineral rights. 11 Claim four alleges that the VER Determination is flawed – that it failed to 12 consider and properly evaluate relevant information when it concluded that the Canyon 13 Mine had valid existing mineral rights. In essence, claim four challenges Energy Fuels’ 14 rights in the uranium at the Canyon Mine. But Plaintiffs do not assert competing interests 15 in the uranium; they have not engaged in the procedures established by the Mining Law 16 for acquiring mineral interests; and they did not participate in the VER Determination. 17 Nor does the Mining Law protect the environmental and historical interests Plaintiffs 18 assert in this case. Other statutes such as NEPA and NHPA protect such interests, but the 19 Mining Law does not. 20 Because Plaintiffs’ interests are not “marginally related to . . . the purpose 21 implicit” in the Mining Law, see Ashley Creek, 420 F.3d at 940, they lack prudential 22 standing to bring claim four. To hold otherwise would give environmental groups and 23 tribes the right to challenge every grant of private mineral rights under the Mining Law. 24 Mineral claimants would be forced into the courts, the costs associated with validating 25 rights would increase, and the “obvious purpose” of the Mining Law – to reward and 26 encourage mineral discovery – would be undermined. 27 The Ninth Circuit has often held that purely economic interests are inconsistent 28 with the environmental interests protected by NEPA. See, e.g., id. at 945; Nevada Land - 18 - 1 Action Ass’n v. U.S. Forest Service, 8 F.3d 713, 716 (9th Cir. 1993); W. Radio Servs. Co. 2 v. Espy, 79 F.3d 896, 903 (9th Cir. 1996); Ranchers Cattlemen Action Legal Fund United 3 Stockgrowers of Am. v. U.S. Dep’t Agric., 415 F.3d 1078, 1103-04 (9th Cir. 2005). Thus, 4 plaintiffs asserting economic injuries lack prudential standing under NEPA. 5 purpose of NEPA is to protect the environment, not the economic interests of those 6 adversely affected by agency decisions.” Nevada Land Action, 8 F.3d at 716. This case 7 presents the same situation in reverse – the “obvious purpose” of the Mining Law is to 8 protect economic interests in mineral deposits, not the environmental or historical 9 interests held by Plaintiffs.8 “The 10 Plaintiffs’ argue that Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. 11 Patchak, 132 S. Ct. 2199 (2012), compels a different result. In Patchak, the Supreme 12 Court held that the owner of property near the site of a proposed Indian casino had 13 prudential standing to challenge the decision of the Secretary of the Interior to acquire 14 nearby property under the Indian Reorganization Act. Id. at 2211-12. The government 15 argued that the owner’s interests in the land’s use were not within the zone of interests of 16 the Act, which focused on land acquisition. Id. at 2210. The Court disagreed, finding 17 that the Act dealt with land use generally and required the Secretary to consider 18 “potential conflicts of land use that may arise” from acquisitions. Id. at 2211 (internal 19 quotations and citations omitted). Consequently, the owner’s interests arguably fell 20 within the zone of interests protected by the Act, as “neighbors to the use . . . are 21 reasonable – indeed, predictable – challengers” to the agency decision. Id. at 2212. 22 Unlike Patchak, Plaintiffs’ interests do not arguably fall within the zone of 23 interests protected by the Mining Law. The statute in Patchak required the government 24 to consider interests like those asserted by the plaintiffs. Plaintiffs have cited no 25 26 27 28 8 Plaintiffs also argue their APA claim is tied to the FLPMA. The Court rejects this argument because the sections of the statute to which Plaintiffs cite do not relate to validity determinations or mineral examinations. See 43 U.S.C. §§ 1701(a)(4), 1702(j), 1714(a). These sections deal with the DOI’s authority to withdraw land and do not provide the Court with any relevant law to apply in deciding claim four. See 5 U.S.C. § 701(a)(2). - 19 - 1 provision of the Mining Law that requires the government to consider their 2 environmental or historical interests when assessing the validity of mineral claims. And 3 the specific section of the Mining Law at issue here, which must be the focus of the 4 Court’s prudential standing analysis, is designed to open up federal land to mineral 5 exploration and the establishment of valid mining claims. 30 U.S.C. § 22. It says 6 nothing about the interests asserted by Plaintiffs. Nor can it be said that Plaintiffs are 7 foreseeable challengers of a BLM or Forest Service decision validating mineral rights, 8 especially when they have not cited a single case involving such a challenge. 9 Plaintiffs also cite Thomas v. Morton, 408 F. Supp. 1361, 1370 (D. Ariz. 1976), 10 for the proposition that the general public has a “paramount interest” in protecting lands 11 from the effects of invalid mining claims. But Thomas involved a mineral claim contest 12 between private parties, not a suit by environmental plaintiffs. It does not support 13 Plaintiffs’ argument that the Mining Law protects Plaintiffs’ interests. 14 In sum, the Court finds that Plaintiffs do not fall within the zone of interests 15 protected by the Mining Law, and thus do not have prudential standing to bring claim 16 four. The Court will grant Defendants’ motion for summary judgment on that claim. 17 C. 18 In their motion to dismiss, Defendants argued that several of Plaintiffs’ claims 19 should be dismissed because the VER Determination did not constitute a final agency 20 action subject to judicial review. Doc. 71. The Court disagreed, finding that the VER 21 Determination “marked the consummation of the Forest Service’s validity determination” 22 and was “a practical requirement before the Canyon Mine resumed operations” under 23 Bennett v. Spear, 520 U.S. at 154. Doc. 131 at 7. The Court found, for reasons discussed 24 above, that the VER Determination was a practical if not a legal requirement. Id. at 9. 25 Relying on Supreme Court and Ninth Circuit authority, the Court then concluded that 26 such a practical requirement could satisfy the second prong of the Bennett test, which 27 requires that the agency action be “one by which rights or obligations have been 28 determined, or from which legal consequences will flow.” 520 U.S. at 178 (quotation Final Agency Action. - 20 - 1 marks and citation omitted); Doc. 131 at 9-10. 2 Defendants now argue that the Court erred in concluding that practical effects can 3 satisfy the second prong of Bennett. Defendants rely primarily on Columbia Riverkeeper 4 v. U.S. Coast Guard, 761 F.3d 1084 (9th Cir. 2014), a case decided two days before the 5 Court issued its order on the motion to dismiss. The Court has reviewed Columbia 6 Riverkeeper and does not find it contrary to the Court’s previous decision. Columbia 7 Riverkeeper appears to confirm that practical effects can satisfy the second prong of the 8 Bennett test: “We agree that an agency’s characterization of its action as being 9 provisional or advisory is not necessarily dispositive, and courts consider whether the 10 practical effects of an agency’s decision make it a final agency action, regardless of how 11 it is labeled.” 761 F.3d at 1094-95 (emphasis added). 12 The court in Columbia Riverkeeper was faced with a very different set of facts. 13 The Ninth Circuit found that the letter of recommendation in question did not, as a 14 practical matter, have the effect of permitting shipment of liquefied natural gas. As the 15 Ninth Circuit explained: “Nor does the record support Riverkeeper’s argument that, as a 16 practical matter, FERC always complies with the Coast Guard’s letter of 17 recommendation, which effectively gives it the force of law.” Id. 18 The record is quite different in this case. The Court finds that the VER 19 Determination, as a practical matter, had to be completed before the Canyon Mine could 20 reopen. 21 constituted final agency action under the Bennett test.9 The Court therefore continues to conclude that the VER Determination 22 23 24 25 26 27 28 9 The Court admits that it has serious doubts as to whether a purely practical effect can satisfy the second prong of the Bennett test. Such a holding seems inconsistent with Bennett’s requirement of actions “by which rights or obligations have been determined, or from which legal consequences will flow.” 520 U.S. at 178. But the cases discussed in the Court’s ruling on the motion to dismiss (Doc. 131 at 9-10) and the language quoted above from Columbia Riverkeeper seem to indicate that practical results can suffice. Were it not for these cases, the Court would find that the VER Determination is not a reviewable agency action for the same reasons as Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586, 594 (9th Cir. 2008). - 21 - 1 D. 2 Defendants argue that claims two and three are barred by collateral estoppel 3 because those claims were litigated in Havasupai Tribe following the approval of the 4 Canyon Mine Plan. Doc. 147-1 at 7. Defendants dedicate only one paragraph of their 5 combined 66 pages of opening briefs to this issue, for good reason. The Court previously 6 rejected a similar argument based on res judicata. Doc. 131 at 14-15. The Court held 7 that the claims brought by the Havasupai Tribe and others in 1988, more than 20 years 8 before the Red Butte area was designated as a TCP, were not the same as the claims 9 asserted under the NHPA in the amended complaint. Id. The Court continues to hold 10 that view. Although Defendants argue that the consultation procedures under NEPA and 11 the NHPA are essentially the same, the authorities they cite do not support this 12 conclusion. Regulations do suggest that such consultations can occur at the same time, 13 but they specifically identify matters that should be addressed under the NHPA that are 14 not addressed under NEPA. See 36 C.F.R. §§ 800.8(a), (c). Collateral estoppel bars 15 “successive litigation of an issue of fact or law actually litigated and resolved in a valid 16 court determination essential to the prior judgment.” Taylor v. Sturgell, 553 U.S. 880, 17 892 (2008). Because issues raised in the amended complaint under the NHPA were not 18 litigated in the earlier litigation, collateral estoppel does not apply. 19 V. Collateral Estoppel. NEPA Compliance – Claim One. 20 “NEPA is a procedural statute that does not ‘mandate particular results, but 21 simply provides the necessary process to ensure that federal agencies take a hard look at 22 the environmental consequences of their actions.’” 23 F.3d 1016, 1018 (9th Cir. 2007) (citation omitted). NEPA requires federal agencies to 24 perform environmental analysis before taking “major Federal actions significantly 25 affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Plaintiffs 26 claim that the VER Determination was a major federal action and that the Forest Service 27 therefore violated NEPA by failing to perform an EIS in connection with the 28 determination. - 22 - Sierra Club v. Bosworth, 510 1 When the Forest Service received the proposed plan of operations for the Canyon 2 Mine in 1984, it complied with NEPA and prepared a full EIS. A.R. 461-693. On the 3 basis of the EIS, the Forest Service issued the ROD and took the “major federal action” 4 of approving the Canyon Mine Plan on September 26, 1986. A.R. 915-29. The EIS and 5 ROD were subsequently upheld in two levels of appeal within the Forest Service, by this 6 Court, and by the Ninth Circuit Court of Appeals. Thus, there can be no doubt that full 7 NEPA compliance occurred before operation of the Canyon Mine was approved. 8 Plaintiffs allege that the VER Determination constituted a new major federal 9 action that triggered the need for another EIS of the Canyon Mine. The Court does not 10 agree. As explained above, the VER Determination was not required as a matter of law 11 before the Canyon Mine could resume operations. In addition, after completing the Mine 12 Review, the Forest Service concluded that no modification or amendment of the existing 13 Plan was necessary for mining activities to resume. 14 approved in 1986 after a full EIS evaluation continued to govern operations at the 15 Canyon Mine. A.R. 10594. Thus, the Plan 16 The Ninth Circuit has held “that where a proposed federal action would not 17 change the status quo, an EIS is not necessary.” San Luis & Delta-Mendota Water Auth. 18 v. Jewell, 747 F.3d 581, 646 (9th Cir. 2014) (quoting Upper Snake River Chapter of 19 Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990)). The Ninth Circuit has also 20 held that EIS requirements do not apply to mere continued operation of a facility. See 21 Upper Snake River, 921 F.2d at 234-35 (holding that agency need not prepare an EIS 22 before adjusting water flow from a dam because continued operation of the dam would 23 have consequences “no different than those in years past”); Burbank Anti-Noise Group v. 24 Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980) (“An EIS need not discuss the 25 environmental effects of mere continued operation of a facility.”); City & Cnty. of San 26 Francisco v. United States, 615 F.2d 498, 501 (9th Cir. 1980) (finding EIS adequate 27 where Navy evaluated effects of shipyard lease only in comparison to the decades-long 28 prior use of the facility as a shipyard, rather than “as if the Navy were proposing to - 23 - 1 establish this multi-million dollar industrial complex for the first time”). 2 Like the above-cited authorities, a resumption of mining activities under the Plan 3 approved by the Forest Service after full NEPA review did not constitute a new major 4 federal action that required preparation of another EIS. The major federal action was the 5 same as approved in 1986 – mining under the Plan of Operations. 6 Plaintiffs argue that “[i]f a federal approval is needed for a project, that approval 7 action is a NEPA ‘major federal action.’” Doc. 140-1 at 21. They assert that the VER 8 Determination was an “approval” needed before mining could resume, and that the VER 9 Determination therefore constituted a new major federal action requiring full NEPA 10 compliance. The Court finds this argument unpersuasive for two reasons. First, as noted 11 above, the VER Determination was not a required approval for mining operations to 12 continue. The premise of Plaintiffs’ argument is therefore incorrect. Second, the law 13 does not provide that every federal approval amounts to a major federal action. This 14 point was made clear in Center for Biological Diversity v. Salazar (“CBD”), 791 F. 15 Supp. 2d 687 (D. Ariz. 2011), and the Ninth Circuit opinion affirming that decision. 16 CBD involves facts nearly identical to this case. The uranium mine at issue in 17 CBD, known as the Arizona 1 Mine, is located on the north side of Grand Canyon 18 National Park and is owned and operated by Energy Fuels. CBD, 791 F. Supp. 2d at 690. 19 A plan of operations for the Arizona 1 Mine was approved by BLM in 1988 after 20 completion of a full EIS. Id. When uranium prices fell in the 1990s, the Arizona 1 Mine 21 was placed on stand-by status. Id. Several years later, in 2007, the owner provided 22 notice that it intended to resume mining under the original plan of operations. BLM 23 required the mine owner to update its reclamation bond and obtain a clean air permit, and 24 then approved the renewed operations. Id. The plaintiffs, which included some Plaintiffs 25 in this case, brought an APA action claiming that BLM’s approval of the renewed mining 26 operations constituted a major federal action that required a supplemental EIS. Id. The 27 plaintiffs pointed to the update of the reclamation bond and the clean air permit as new 28 steps that made the renewed mine operation a major federal action under NEPA. - 24 - 1 The Court disagreed. It found that a supplemental EIS was not required because 2 BLM had complied with NEPA in 1988 when it approved the original plan of operations 3 for the Arizona 1 Mine. Id. at 698. The Court found that BLM’s approval of the updated 4 bond and the requirement of an air permit did not amount to a major federal action 5 because they were “not an approval of a specific project by permit or regulatory 6 decision.” Id. at 704 (internal quotations omitted). Instead, the Court found that the 7 “major federal action was taken more than 20 years ago” when BLM approved the mine’s 8 plan of operations after a full NEPA review. Id. 9 The Ninth Circuit affirmed. Center for Biological Diversity v. Salazar, 706 10 F.3d 1085 (9th Cir. 2013). The Ninth Circuit noted that approval of the mine’s plan of 11 operations in 1988 undoubtedly was a major federal action, but that it was completed 12 when the plan was approved. Id. at 1095. “Before that action was complete, BLM 13 performed the requisite environmental analysis.” Id. “Accordingly, as far as the 1988 14 plan of operations is concerned, appropriate NEPA review took place and there is no 15 ongoing ‘major Federal action’ that could require [EIS] supplementation.” Id. (quotation 16 marks and citation omitted). The fact that BLM required additional steps to be completed 17 before mining could resume did not alter this conclusion. Those additional steps – 18 updating of the bond and obtaining of the air permit – did not approve any new specific 19 project and constituted mere ministerial tasks. Id. at 1095-96. 20 These holdings apply to the Canyon Mine. A full NEPA analysis was performed 21 by the Forest Service when the Plan was approved in 1986. The major federal action – 22 plan approval – was completed at that time. The fact that the Forest Service elected to 23 conduct a VER Determination before the mine resumed operations, and that the owner 24 agreed to wait until the determination was finished, did not constitute a new major federal 25 action. The VER Determination was not a legal requirement. Nor were the resumed 26 mine operations going to vary from the previously approved Plan. Like the bond update 27 and the air permit required in CBD, the VER Determination was not an approval of a new 28 - 25 - 1 project.10 2 Plaintiffs argue that this conclusion conflicts with Pit River Tribe, which involved 3 BLM’s extension of expired leases on federal land for development of a geothermal 4 plant. 469 F.3d at 768. The Ninth Circuit, in an opinion by the same judge who authored 5 the Ninth Circuit opinion in CBD, held that extending the leases required preparation of 6 an EIS because, without the extension, the lessee would have retained no rights on the 7 leased property. Id. at 784. Extension of the leases thus constituted an affirmative grant 8 of the right to build a geothermal plant. Id. (“Without the affirmative re-extension of 9 the 1988 leases, Calpine would have retained no rights at all to the leased property and 10 would not have been able to go forward with the Fourmile Hill Plant.”). 11 Unlike the leases in Pit River Tribe, which would have expired without affirmative 12 action by the government, the approved Plan for the Canyon Mine had no time limit. The 13 interim management provisions of the Plan continued to govern the mine while on stand- 14 by status. Energy Fuels’ rights under the Plan were never terminated and did not require 15 affirmative renewal. See Center for Biological Diversity, 706 F.3d at 1091-94 (holding 16 that approved plan of operation for uranium mine remained in effect through periods 17 when mine was inactive); 43 C.F.R. § 3809.423 (plan of operation remains in effect 18 unless terminated by agency); A.R. 10598 (Mine Review determination that the Plan for 19 the Canyon Mine had no time limit and remained in effect in 2012). The expiration of 20 the leases in Pit River Tribe stripped the developer of all rights on the land. Here, the 21 Withdrawal had no such effect, and the Court’s decision does not conflict with the 22 holding in Pit River Tribe.11 23 24 25 26 10 The Forest Service’s Mine Review reached the same conclusion: “No new federal action subject to further NEPA analysis is required for resumption of operations of the Canyon Mine. The existing [Plan] remains in place and in effect, and there is no need for any amendment or modification of the [Plan].” A.R. 10629. 11 27 28 Plaintiffs claim that another company, VANE Minerals LLC, recognized that the Withdrawal changed its legal rights to mine. VANE’s activities, however, involved exploratory drilling and a request for approval of a new plan of operations. Doc. 140-9. As noted above, the Withdrawal specifically required that new plans of operations be approved only after a VER Determination was completed. - 26 - 1 In sum, the Withdrawal had no effect on the operations at Canyon Mine, the VER 2 Determination was not legally required, mining was to continue under the Plan that had 3 been subjected to full NEPA review in 1986, and the VER Determination did not alter or 4 amend the Plan. As noted above, EIS requirements do not apply to mere continued 5 operation of a NEPA-approved facility. As in CBD, the major federal action in this case 6 occurred more than twenty years ago and remains unchanged. Because issuance of the 7 VER Determination did not trigger NEPA or require a new EIS, Defendants are entitled 8 to summary judgment on claim one. 9 VI. NHPA Compliance – Claims Two and Three. 10 Before a federal agency implements, assists, or licenses an “undertaking,” the 11 NHPA requires the agency to “take into account the effect of the undertaking on any 12 district, site, building, structure, or object that is included in or eligible for inclusion in 13 the National Register” of Historic Places. 16 U.S.C. § 470f. For purposes of this case, an 14 “‘undertaking’ means a project, activity, or program . . . requiring a Federal permit, 15 license, or approval[.]” 16 U.S.C. § 470w(7)(C). 16 NHPA regulations are promulgated by the ACHP. The regulations guide federal 17 agencies in implementing the § 106 consultation process, which requires the agency to 18 identify the affected historical properties, determine potential adverse effects, and 19 identify methods of mitigation. 36 C.F.R. §§ 800.2-800.7. The regulations also require 20 consultation with the public, the ACHP, the AZSHPO, and Indian tribes that “attach 21 religious and cultural significance to historic properties that may be affected by an 22 undertaking.” Id., § 800.2(c)(2)(ii). 23 Plaintiffs allege in claim two that the Forest Service was obligated to complete a 24 full NHPA § 106 consultation because resumed operation of the Canyon Mine was an 25 “undertaking” within the meaning of the NHPA. They allege in claim three that the 26 Forest Service erred in applying the NHPA process set forth in § 800.13(b)(3), rather than 27 (b)(1), and did not comply with (b)(3) in any event. The Court will address these claims 28 - 27 - 1 separately.12 2 A. 3 An undertaking is a “project, activity, or program funded in whole or in part under 4 the direct or indirect jurisdiction of a Federal agency, including . . . those requiring a 5 Federal permit license, or approval[.]” 16 U.S.C. § 470w(7)(C). The standards for the 6 existence of a federal undertaking are similar to those for a major federal action under 7 NEPA. See Dugong v. Rumsfeld, 2005 WL 522106, at *12 (N.D. Cal. March 2, 2005) 8 (citing cases from the Ninth, D.C., Fourth, and Fifth Circuits which noted the similar 9 standards). Plaintiffs claim that the VER Determination constituted a permit, license, or 10 approval, and that the resumption of mining at the Canyon Mine was therefore an 11 undertaking requiring full NHPA compliance. The Court disagrees for two reasons.13 Was There an Undertaking? 12 First, for the resumed mining operations to constitute an undertaking, the VER 13 Determination must have been “a Federal permit license, or approval[.]” 16 U.S.C. 14 § 470w(7)(C). As explained above, however, the VER Determination was not legally 15 required before Energy Fuels could resume operations of the Canyon Mine. The Court 16 cannot conclude that it constituted a federal permit, license, or approval when mining 17 operations could have resumed without it. 18 Second, operations at the Canyon Mine are to resume under the original Plan. 19 There is no new plan. If mining is the “undertaking” for purposes of the NHPA, that 20 undertaking was approved in 1986. With no modification to the Plan and no requirement 21 of a VER Determination, there is no new undertaking subject to NHPA compliance. 22 23 24 25 26 27 28 12 As Defendants note, claims two and three as described in Plaintiffs’ summary judgment briefing go well beyond the claims laid out in the amended complaint, which simply allege that the Forest Service failed to initiate and complete a § 106 process. Doc. 115 at 25-27. The Court nonetheless will address the claims as described in the summary judgment briefing. 13 Plaintiffs alleged in their amended complaint that the VER Determination, not the resumed operation of the mine, constituted the “undertaking” for NHPA purposes. Doc. 115, ¶ 79. In their summary judgment briefing and during oral argument, Plaintiffs clarified their position. They claim that the undertaking is the resumed operation of the mine and that the VER Determination is the license, permit, or approval for that undertaking. See Docs. 140-1 at 34; 151 at 28. - 28 - 1 Plaintiffs admit in their amended complaint that a § 106 process was completed 2 in 1986. 3 connection with approving the 1986 Plan of Operation for Canyon Mine.”). As described 4 in the Mine Review, the 1986 process included consultation with AZSHPO and ACHP to 5 develop a plan for archeological tests; archeological review of the proposed mine site and 6 access roads; a cultural resources survey of the proposed power line location; notice to 7 and responses from the Havasupai, Hopi, Hualapai, and Navajo tribes; consultation with 8 these tribes; and meetings with the Havasupai and Hopi tribes. A.R. 10601-11. The 9 Mine Review concluded that “[a] review of the NHPA Section 106 compliance analysis 10 and the ROD for the Canyon Mine indicates that the agency did adequately address all 11 the effects to historic properties that had been identified in the ROD.” A.R. 10602; see 12 also A.R. 10611 (“it appears that the [Forest Service] was diligent and thorough in its 13 efforts to solicit tribal input and understand tribal concerns”); A.R. 10612 (“All of the 14 Tribal comments were responded to and the EIS was substantially revised to reflect the 15 information provided by the Havasupai and Hopi.”).14 Doc. 115, ¶ 85 (“The Forest Service conducted a Section 106 Process in 16 With the “undertaking” of mining having been approved in 1986 after compliance 17 with § 106, the Court cannot conclude that resumed mining under the same Plan 18 constitutes a new undertaking. 19 Review: “Since [Energy Fuels] has not proposed any new activities which would require 20 modification of the existing [Plan] or a new [Plan], there will be no new federal 21 undertakings subject to NHPA Section 106 compliance.” A.R. 10601. The Court agrees with the conclusion in the Mine 22 Of course, one significant change has occurred since the 1986 approval – Red 23 Butte and surrounding land, including the location of the mine, have been designated a 24 TCP and added to the National Register of Historic Places. Recognizing this change, the 25 26 27 28 14 In its decision on the sufficiency of the 1986 EIS and ROD, this Court noted that the Forest Service distributed more than 100 copies of the proposed Plan for the Canyon Mine to interested parties; received over 200 letters in response; and, following the decision to do a full EIS, distributed more than 2,000 scoping letters to federal, state, and local government agencies, Indian tribes, news media and other interested parties. Havasupai Tribe, 752 F. Supp. at 1476-77. - 29 - 1 Forest Service chose to treat Red Butte’s TCP status as a new discovery and to apply the 2 NHPA regulations for new discoveries. The Forest Service followed the procedures in 36 3 C.F.R. § 800.13(b)(3). Plaintiffs claim this was error. 4 B. 5 Section 800.13 of the applicable regulations sets forth the NHPA’s consultation 6 process for “[p]ost-review discoveries.” 36 C.F.R. § 800.13. These are discoveries of 7 historic properties, or effects on historic properties, made after a § 106 process has been 8 completed. Paragraph (a) states that agreements made during the § 106 process can 9 anticipate such discoveries and lay out procedures for dealing with them. Paragraph (b) 10 applies when no such procedures are in place. It states that “[i]f historic properties are 11 discovered or unanticipated effects on historic properties found after the agency official 12 has completed the section 106 process . . . , the agency official shall make reasonable 13 efforts to avoid, minimize or mitigate adverse effects to such properties” and shall 14 comply with subparagraphs (b)(1) through (b)(3). Id., § 800.13(b). The Forest Service’s Decision to Apply (b)(3) Was Reasonable. 15 Subparagraph (b)(1) applies when the § 106 process is finished but “the agency 16 official has not approved the undertaking or . . . construction on an approved undertaking 17 has not commenced[.]” Id., § 800.13(b)(1). It requires the agency to comply with 18 § 800.6, which sets forth detailed procedures for resolving adverse effects during a full 19 § 106 process. Id. Among other requirements, § 800.6 requires that the agency adopt a 20 memorandum of agreement evidencing the agency’s “compliance with section 106” and 21 governing “the undertaking and all of its parts.” 36 C.F.R. § 800.6. The agency must 22 “ensure that the undertaking is carried out in accordance with the memorandum of 23 agreement.” Id. 24 25 26 Subparagraph (b)(2) applies when the newly discovered site is relevant only for data collection purposes. § 800.13(b)(2). It is not at issue in this case. Subparagraph (b)(3) applies “[i]f the agency official has approved the undertaking 27 and construction has commenced[.]” 28 “determine actions that the agency official can take to resolve adverse effects” and to Id., § 800.13(b)(3). - 30 - It requires the agency to 1 notify interested parties, including Indian tribes, “within 48 hours of the discovery.” Id. 2 Interested parties must respond within 48 hours of receiving notice, and the agency then 3 must take into account their recommendations and “carry out appropriate actions.” Id. 4 By merely requiring that the agency “carry out appropriate actions,” (b)(3) is less 5 demanding than (b)(1) and its requirement of a detailed consultations process resulting in 6 a memorandum of agreement that governs the undertaking in the future. 7 In conducting the Mine Review, the Forest Service recognized that Red Butte had 8 not been listed on the National Register at the time of the previous § 106 process.15 9 A.R. 10602. 10 Therefore, the Forest Service decided to treat Red Butte as a newly discovered historic property and looked to § 800.13 of the regulations: 11 Because the earlier definition [of historic property] did not include properties of traditional religious and cultural importance, Red Butte was only recorded as a TCP and evaluated as eligible on the NR after the [1986] ROD but before the project has been completed. Therefore, it could be considered a newly “discovered” historic property, and section 36 C.F.R. 800.13(b) of the regulations would apply. 12 13 14 15 16 17 A.R. 10603. 18 The question, then, was whether the Forest Service should proceed under 19 subparagraph (b)(1) or (b)(3). Because the Canyon Mine had been approved in 1986 and 20 construction of the mine had commenced, the Forest Service decided that subparagraph 21 (b)(3) applied. Id. The Forest Service acknowledged that “[t]he Canyon Mine project is 22 a somewhat unusual situation in that the Section 106 process was completed more 23 than 20 years ago.” Id. But the Forest Service concluded that it could provide the notice 24 required by subparagraph (b)(3), allow the tribes and other interested parties 30 days to 25 respond because there was no timing emergency requiring a 48-hour response, and 26 address ways to avoid or minimize adverse effects on Red Butte from the Canyon Mine 27 28 15 03. In 1986, the NHPA did not allow tribal religious sites to be listed. A.R. 10602- - 31 - 1 operations. Id. Notices were mailed on June 25, 2012, meetings were held with the 2 tribes, a memorandum of agreement was considered, but this lawsuit intervened. See, 3 e.g., A.R. 10540 (email to SHPO regarding consultation for MOA); A.R. 10542 (email to 4 ACHP regarding consultation for MOA); A.R. 10643-44 (consultation notice letters to 5 chairman of Kaibab Paiute Tribes), 10690-91 (Havasupai Tribe), 6 Cultural Preservation Office), 10784-85 (Hopi Tribe), 10831-32 (Hualapai Tribe), 10878- 7 79 (Hualapai Tribe), 10925-26 (Navajo cultural specialist), 10972-73 (Navajo 8 Nation), 11019-20 (Kaibab Band of Paiute Indians), 11066-67 (Yavapai-Prescott Indian 9 Tribe), 11113-14 (Yavapai-Prescott Indian Tribe), 11160-61 (Pueblo of Zuni); 10 A.R. 11380 (Aug. 15, 2012 emails discussing Havasupai MOA) A.R. 11390-91 (Hopi 11 meeting agenda); A.R. 11411 (Sept. 6, 2012 meeting notes with Kaibab Band of Paiute 12 Indians); A.R. 11790 (Sept. 19, 2012 meeting notes and agenda re: Hopi Cultural 13 Preservation Office); A.R. 11796 (Sept. 20, 2012 meeting notes and agenda re: Navajo 14 Nation); A.R. 11799 (Sept. 20, 2012 meeting notes and agenda re: Pueblo of Zuni); 15 A.R. 11809 (Oct. 4, 2012 meeting notes re: Havasupai Tribal Council); A.R. 11832 16 (Oct. 19, 2012 meeting notes re: Hopi Cultural Resources Task Team); A.R. 12238 17 (Jan. 7, 2013 intertribal meeting notes); A.R. 12387 (summary of communications with 18 tribes). 10737-38 (Hopi 19 Because Plaintiffs’ claim is brought under the APA, the Court can set aside the 20 Forest Service’s decision to follow the (b)(3) procedure only if it was arbitrary and 21 capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 22 § 706(2)(A). 23 Alliance, 475 F.3d at 1140. Plaintiffs make several arguments that do not satisfy this 24 standard. 25 This is a “highly deferential” standard of review. 1. Nw. Ecosystem The Undertaking Was Approved Previously. 26 Plaintiffs argue that the “undertaking” in this case was the resumption of mining 27 operations at the Canyon Mine, that the undertaking as so defined has never been 28 approved before, and that § 800.13(b)(3) therefore did not apply. For reasons explained - 32 - 1 above, however, the Court does not agree that the “undertaking” was the resumption of 2 mining activities. Operations were to continue under the Plan approved in 1986, without 3 modification. 4 approved by the Forest Service in 1986. Plaintiffs do not argue that a new Plan of 5 Operations was required for mining activities to resume. Indeed, that argument was 6 rejected by this Court and the Ninth Circuit in CBD. CBD, 791 F. Supp. 2d at 692-96; 7 706 F.3d at 1091-94. Thus, the Plan under which mining would continue was fully 8 approved by the Forest Service in 1986 after a § 106 consultation process, and no new 9 undertaking required another approval. 10 The “undertaking” was mining at the site, and that undertaking was 2. The Language of (b)(3) Is Not Limited to Emergencies. 11 Plaintiffs argue that § 800.13(b)(3) is an emergency measure that does not apply to 12 the Canyon Mine. They cite the history of the regulation and argue that it was intended 13 to apply when a historically significant property is uncovered in the midst of constructing 14 an approved undertaking, which did not occur here. Doc. 140-1 at 41. The citations 15 provided by Plaintiffs, however, are not persuasive. 16 Plaintiffs cite prior titles in § 800.13(b)(3). In one, the title refers to “[r]esources 17 discovered during construction.” 44 Fed. Reg. 6068, 6077 (Jan. 30, 1979). In the other, 18 the title refers to “[p]roperties discovered during implementation.” 51 Fed. Reg. 31115, 19 31123 (Sept. 2, 1986). Although these titles suggest that the section applies when a 20 discovery is made in the midst of construction, the actual text of these earlier regulations 21 is worded differently – it refers to discoveries that occur “after beginning to carry out the 22 undertaking,” which accurately describes the Canyon Mine situation. 51 Fed. Reg. 23 at 31123; see also 44 Fed. Reg. at 6077 (noting that section applies if “an Agency 24 Official finds or is notified after construction has started”) (emphasis added). Text 25 usually controls over titles in a statute or regulation. See generally Bhd. of R.R. Trainmen 26 v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947) (recognizing that “the title of 27 a statute and the heading of a section cannot limit the plain meaning of the text”). Thus, 28 the Court cannot conclude from these earlier versions of the regulation that (b)(3) was - 33 - 1 limited to emergency situations. 2 More importantly, the Court must apply the current regulation. The title of the 3 current version is “Post-review discoveries,” suggesting that it applies to discoveries 4 made after the § 106 review is completed and is not necessarily limited to events 5 occurring in the midst of active, ongoing construction. 36 C.F.R. § 800.13(b). What is 6 more, courts resort to statutory or regulatory history to construe statutes or regulations 7 only when those statutes or regulations are ambiguous. 8 Williams, 659 F.3d 1223, 1225 (9th Cir. 2011). Subparagraph (b)(3) is not ambiguous. It 9 applies when “the agency official has approved the undertaking and construction has See United States v. 10 commenced[.]” 11 undertaking in this case – operation of the Canyon Mine – was approved by the Forest 12 Service in 1986 and construction commenced in 1991. As noted earlier, the mine owner 13 built access roads, storage buildings, a power line, a perimeter fence, diversion structures, 14 a holding pond, a 100-foot tall head frame, a hoist, and support buildings, and sunk the 15 mine shaft to a depth of 50 feet. A.R. 10487; Doc. 146-1 at 17; Hangan Declaration, 16 Doc. 53-4, ¶ 4. The situation at the Canyon Mine thus fell squarely within the plain 17 language of subparagraph (b)(3). 18 19 36 C.F.R. § 800.13(b)(3). 3. No further limitation is imposed. The Deference to the ACHP Is Not Warranted. The ACHP is the agency that promulgates NHPA regulations, including § 800.13. 20 16 U.S.C. § 470s. 21 interpretation of its own regulation is controlling unless it is plainly erroneous or 22 inconsistent with the language of the regulation. 519 U.S. 452, 461 (1997). Plaintiffs 23 argue that the ACHP interpreted subparagraph (b)(3) in this case and the Court must 24 defer to that interpretation. For several reasons, the Court does not agree. 25 26 27 28 In Auer v. Robbins, the Supreme Court held that an agency’s The “interpretation” relied on by Plaintiffs is contained in a letter the ACHP wrote to the Forest Service on August 1, 2012. The letter provides this explanation: In this situation, we understand that the Plan of Operations for the undertaking has been approved, and that some construction has occurred. Based upon the information you provided, it appears this construction - 34 - 1 2 3 4 5 6 7 8 9 activity has started and stopped over the years. The intent of Section 800.13(b)(3) is to provide an expedited review process where construction activities have begun and would be ongoing, and thus, the agency has limited time and opportunity for consultation. Should the Forest Service pursue this approach, we are concerned that it would continue the unproductive conflict between the Forest Service and the Indian tribes that consider Red Butte a sacred place. Further, because of the nature and timing of this undertaking and the current request to resume previously halted mining operations, we believe consultation in accordance with Section 800.13(b)(l) to develop and execute a Section 106 agreement is the appropriate way forward. A.R. 11335. 10 The letter does describe the intent of (b)(3) as applying to emergency situations, 11 but its recommendation that the Forest Service proceed under (b)(1) appears to be more 12 tactical advice than an interpretation of the regulation. The ACHP suggests that the 13 Forest Service use (b)(1) not because the language of that provision applies, but because 14 the ACHP is concerned that applying (b)(3) “would continue the unproductive conflict 15 between the Forest Service and the Indian tribes that consider Red Butte a sacred place.” 16 Id. This reasoning is more a comment on the situation facing the Forest Service than on 17 the meaning of the regulation. The Court therefore doubts that the letter constitutes the 18 kind of regulatory interpretation entitled to deference under Auer. 19 But even if the ACHP letter constituted an interpretation of (b)(1) and (b)(3), it is 20 not entitled to deference. The Supreme Court has explained that “Auer deference is 21 warranted only when the language of the regulation is ambiguous.” Christensen v. 22 Harris Cnty., 529 U.S. 576, 588 (2000). “To defer to the agency’s position [when a 23 regulation is not ambiguous] would be to permit the agency, under the guise of 24 interpreting a regulation, to create de facto a new regulation.” Id.; see also Bassiri v. 25 Xerox Corp., 463 F.3d 927, 931 (9th Cir. 2006) (“Under Auer, as amplified by 26 Christensen, the court must first determine whether the regulation was ambiguous.”). 27 As noted above, § 800.13(b) is not ambiguous. Subparagraph (b)(1) applies when 28 the agency “has not approved the undertaking” or “construction on an approved - 35 - 1 undertaking has not commenced.” Subparagraph (b)(3) applies when neither of the (b)(1) 2 conditions is present – when the agency “has approved the undertaking and construction 3 has commenced.” Subparagraphs (b)(1) and (b)(3) thus cover all possible scenarios for 4 discoveries of historical properties after a § 106 process is completed. If the undertaking 5 is not yet approved, (b)(1) applies. If the undertaking is approved but construction has 6 not yet commenced, (b)(1) applies. If the undertaking is approved and construction has 7 commenced, (b)(3) applies. The Court sees no ambiguity in these provisions. Every 8 eventuality is addressed. 9 Plaintiffs argue that the scenario in this case – the undertaking has been approved, 10 construction has commenced, and construction has stopped – is not covered by the 11 regulations. The Court does not agree. This scenario falls within (b)(3) because the 12 regulations do not make work stoppage a factor in deciding which subparagraph applies. 13 If an undertaking has been approved and construction has commenced, the criteria for 14 (b)(3) are fully satisfied. Although undertakings where the construction has subsequently 15 stopped may be a subset of the scenarios covered by (b)(3), it is a subset that is not 16 assigned in the regulations to different treatment. It is fully covered by the (b)(3) criteria. 17 Certainly it is not assigned to (b)(1), which applies only if there has been no undertaking 18 approval or no start of construction. 19 Plaintiffs suggest that an ambiguity is created because the 48-hour provisions in 20 (b)(3) clearly show that it is designed for emergency situations, and restart of the Canyon 21 Mine is not an emergency situation. Although the 48-hour provisions do suggest that 22 (b)(3) was designed primarily for emergency situations, nothing in (b)(3) states that it is 23 limited to those situations. Subparagraph (b)(3) does not say that it applies when “the 24 agency has approved the undertaking, construction has commenced, and 48-hour notice is 25 necessary,” or comparable language. 26 Because the Court does not find § 800.13(b) ambiguous, Auer deference is not 27 warranted. 28 deference being required for the ACHP interpretation, the Court cannot say that the Christensen, 529 U.S. at 588; Bassiri, 463 F.3d at 931. - 36 - And with no 1 Forest Service’s reading of § 800.13(b) – applying its plain language – was arbitrary and 2 capricious, an abuse of discretion, or not in accordance with the law. 3 What is more, even if the Court were to find some ambiguity in § 800.13(b), Auer 4 deference would be warranted only if the ACHP’s interpretation is not “inconsistent with 5 the regulation.” Auer, 519 U.S. at 461. The Court finds that the ACHP interpretation is 6 inconsistent with the plain language. Subparagraph (b)(1) applies only when the agency 7 “has not approved the undertaking” or “construction on an approved undertaking has not 8 commenced.” Under no reading could this provision apply to the Canyon Mine, where 9 the undertaking was approved in 1986 and construction commenced in 1991. ACHP’s 10 advice that subparagraph (b)(1) applies is simply contrary to the language of (b)(1). 11 As noted, the ACHP letter appears to be based more on the factual situation 12 related to the Canyon Mine than the meaning of (b)(1) and (b)(3). But if viewed as an 13 attempt to construe those provisions, the letter appears to create a new category under 14 § 800.13(b) for undertakings approved, started, and then stopped. That category does not 15 exist in the current version of the regulations. Accepting it would, as the Supreme Court 16 warned, “permit the agency, under the guise of interpreting a regulation, to create de 17 facto a new regulation.” Christensen, 529 U.S. at 588. 18 The cases cited by Plaintiffs do not require a different result. See Doc. 140-1 19 at 42. The decision in CTIA–The Wireless Ass’n v. FCC, 466 F.3d 105,115-16 (D.C. 20 Cir. 2006), did not address Auer deference – deferring to an agency’s interpretation of its 21 own regulation. It addressed deferring to an agency’s interpretation of a statute through 22 promulgated regulations. Id. at 116. That is a different kind of deference. See Go v. 23 Holder, 744 F.3d 604, 612 (9th Cir. 2014) (Wallace, J., concurring) (noting the 24 distinction recognized in Price v. Stevedoring Services of America, Inc., 697 F.3d 820, 25 829 (9th Cir. 2012), between “an agency’s informal interpretations of its own regulations 26 [which are entitled to Auer deference] and of its governing statute [which are entitled to 27 Chevron deference].”) (brackets in original). Plaintiffs’ other cases, Stinson v. United 28 States, 508 U.S. 36, 45 (1993), Karuk Tribe of California v. U.S. Forest Service, 681 - 37 - 1 F.3d 1006, 1017 (9th Cir. 2012), and Sayler Park Village Council v. U.S. Army Corps of 2 Engineers, 2002 WL 32191511, at *6 n.5 (S.D. Ohio, Dec. 30, 2002), simply restate the 3 rule established in Auer. They do not detract from the fact that Auer deference applies 4 only when a regulation is ambiguous, nor from the fact that an agency’s interpretation of 5 an ambiguous regulation must, if deference is to be accorded, comport with the 6 regulation’s language. 7 8 9 In summary, the Court does not find that the Forest Service’s decision to apply (b)(3) was arbitrary, capricious, an abuse of discretion, or not in accordance with law. C. Compliance with (b)(3). 10 Plaintiffs also argue that the Forest Service failed to comply with (b)(3). Plaintiffs 11 claim that (1) no notice was sent out to interested parties within 48 hours, (2) no actions 12 were proposed to mitigate adverse effects, (3) the local tribes’ responses to the notice 13 went unaccounted for, and (4) no reports of any actions were provided to interested 14 parties. The Court disagrees with Plaintiffs’ characterization of the Forest Service’s 15 efforts. 16 The same day that the Forest Service concluded (b)(3) applied, it sent a 17 consultation letter to Don Watahomigie, Chairman of the Havasupai Tribe (A.R. 10690), 18 as well as to the Hopi Tribe, Hualapai Tribe, the Kaibab Band of Paiute Indians, the 19 Navajo Nation, the Yavapai-Prescott Indian Tribe, and the Pueblo of Zuni, to initiate 20 consultation under § 800.13(b)(3). A.R. 12388. Plaintiffs argue that the notice was 21 required within 48 hours of Energy Fuels’ informing the Forest Service of its intent to 22 reopen the Canyon Mine. As the Forest Service acknowledges, however, this was an 23 unusual situation. A.R. 10603. It took some time for the Forest Service to determine 24 what kind of review was required. Once it determined – correctly, as explained above – 25 that the situation was governed by (b)(3), it sent the notice required by that section 26 within 48 hours. A.R. 10603-04. 27 Over the course of the next several months, the Forest Service entertained 28 objections and responses from the various tribes, met with representatives from various - 38 - 1 tribes, conducted field visits, and engaged in discussions regarding the potential impacts 2 of the Canyon Mine. A.R. 12388-89. For example, in August 2012, the Forest Service 3 conducted field visits with representatives from the Zuni Cultural Resource Advisory 4 Task Team at Red Butte. A.R. 12389. In September, the Forest Service met with the 5 Kaibab Band of Paiute Indians in Pipe Springs, Arizona to discuss several projects, 6 including the Canyon Mine. Id. Throughout September and October, Forest Service 7 representatives responded to letters sent by various tribes and met multiple times with the 8 Hopi Tribe in Kykotsmovi, Arizona; the Navajo Nation in Window Rock, Arizona; and 9 the Pueblo of Zuni in Zuni, New Mexico. Representatives also hiked eight miles to 10 Supai, Arizona to consult with the Havasupai Tribe. Id. In January 2013, the Forest 11 Service and Energy Fuels met with representatives from multiple tribes and conducted a 12 field visit to the Canyon Mine site. Id. The next day, a MOA workshop was conducted 13 with several tribes in Flagstaff, Arizona. Id. Two months later, Plaintiffs filed this 14 lawsuit, effectively ending the consultation process. 15 Notwithstanding the above, Plaintiffs assert that the Forest Service failed to take 16 unilateral action to avoid or mitigate effects to Red Butte and falsely informed the tribes 17 that the only mitigation measures that would occur would be voluntarily undertaken by 18 Energy Fuels. Doc. 140-1 at 23-25. But the procedures set forth in (b)(3) do not direct 19 the Forest Service to undertake unilateral action or impose a memorandum of agreement 20 on the mine operator, and Plaintiffs’ arguments again fail to recognize the extensive 21 efforts the Forest Service did undertake to consult with the tribes, efforts that were cut 22 short when Plaintiffs filed this lawsuit. The Forest Service engaged in discussions with 23 the tribes in order to address their concerns and sought to memorialize their obligations in 24 a MOA. 25 The Forest Service’s ongoing environmental analysis and tribal consultation over 26 the past twenty years evidences its efforts to comply with the NHPA. In 1985, the Forest 27 Service traveled to the Supai Village to meet with representatives from the Havasupai 28 Tribe for two days. Havasupai Tribe, 752 F. Supp. at 1495. When Energy Fuels’ - 39 - 1 predecessor submitted its original plan in 1984, over 100 copies were sent to interested 2 parties and several meetings were held to address public and tribal concern. Id. at 1476- 3 77. More than 2,000 scoping letters were sent to the media and interested parties and a 4 “public scoping session” was held in Flagstaff, Arizona in May 1985. Id. at 1477. 5 In 1994, the Forest Service sent a letter to the Havasupai, Navajo, and Hopi Tribes 6 requesting permission to conduct water sampling for ongoing monitoring of the site. 7 A.R. 5955. In February 2008, twenty letters were sent to representatives from the Navajo 8 Nation, Havasupai Tribe, Hopi Tribe, and Hualapai Tribe regarding projects in the 9 Kaibab National Forest, including the Canyon Mine. A.R. 7518-86. Follow-up letters 10 were sent in May. A.R. 7589-643. In August 2008, a Memorandum of Understanding 11 was reached between the Forest Service and the Havasupai Tribe to establish areas in 12 which the Forest Service would carry out tribal consultations. 13 January 2011, the Forest Service sent emails to representatives from the Sierra Club 14 addressing further analysis of the Canyon Mine EIS. A.R. 8517. In October 2011, the 15 Forest Service confirmed dates and sent an agenda for a meeting with Havasupai tribal 16 elders. A.R. 10140. Proposed meetings were also negotiated with the Navajo Nation, the 17 Pueblo of Zuni, and the Hopi Tribe. A.R. 10239, 10240, 10263. Conference calls were 18 scheduled and held regarding the Canyon Mine with the Kaibab Band of Paiute Indians, 19 Hualapai Tribe, Navajo Nation, Yavapai Prescott Indian Tribe, and Pueblo of Zuni. 20 A.R. 10282; 10283; 10286; 10291; 10297; 10298. In fact, the Forest Service reviewed all 21 of the documents prepared in connection with the 1986 ROD when it was deciding 22 whether to apply (b)(1) or (b)(3) and noted that the “tribal scoping process used during 23 development of the EIS probably exceed the standards of the time.” A.R. 10611. A.R. 7646-54. In 24 In summary, for some twenty years the Forest Service has been engaging in 25 environmental analyses and consultation meetings with tribes and environmental 26 organizations regarding the Canyon Mine. Recognizing the unique situation it faced 27 when mining was to resume, the Forest Service reviewed the regulations, found that 28 (b)(3) applied, and engaged in consultation with the tribes to “seek reasonable ways to - 40 - 1 minimize the effects” of mining at the site. 2 immediate notice of its decision, initiating consultation with tribes and environmental 3 groups, and planning and attending meetings to discuss cultural and environmental 4 impacts over several months. Had this lawsuit not intervened, the Forest Service and the 5 tribes might well have executed a memorandum of agreement regarding appropriate ways 6 to minimize effects on Red Butte. The Court cannot conclude that the Forest Service’s 7 application of the (b)(3) process was arbitrary, capricious, an abuse of discretion, or not 8 in accordance with law. 9 VI. A.R. 10604. It did this by providing Conclusion. 10 The Court finds that Plaintiffs have failed to establish a NEPA violation in claim 11 one or a NHPA violation in claims two and three, and that Plaintiffs lack prudential 12 standing to assert claim four. The Court accordingly will grant summary judgment in 13 favor of Defendants. 14 IT IS ORDERED: 15 1. 16 Defendants’ and Defendant-Intervenors’ motions for summary judgment are granted on all counts. Docs. 146, 147. 17 2. Plaintiffs’ motion for summary judgment is denied. Doc. 140. 18 3. The Clerk shall enter judgment and terminate this action. 19 Dated this 7th day of April, 2015. 20 21 22 23 24 25 26 27 28 - 41 -

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