Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.

33 F.4th 1202

CENTER FOR BIOLOGICAL DIVERSITY ; Save the Scenic Santa Ritas; Arizona Mining Reform Coalition; Grand Canyon Chapter of the Sierra Club; Tohono O'odham Nation ; Hopi Tribe; Pascua Yaqui Tribe of Arizona, named as Pascua Yaqui Tribe, Plaintiffs-Appellees,

v.UNITED STATES FISH AND WILDLIFE SERVICE ; United States Forest Service; United States of America; Kurt Davis, Acting Supervisor of the Coronado National Forest; Calvin Joyner, Regional Forester; Randy Moore, Chief of the U.S. Forest Service; Thomas J. Vilsack, U.S. Secretary of Agriculture, Defendants-Appellants,andRosemont Copper Company, Intervenor-Defendant.

Center for Biological Diversity ; Save the Scenic Santa Ritas; Arizona Mining Reform Coalition; Grand Canyon Chapter of the Sierra Club; Tohono O'odham Nation ; Hopi Tribe; Pascua Yaqui Tribe of Arizona, named as Pascua Yaqui Tribe, Plaintiffs-Appellees,

v.United States Fish and Wildlife Service ; United States Forest Service; United States of America; Kurt Davis, Acting Supervisor of the Coronado National Forest; Calvin Joyner, Regional Forester; Randy Moore, Chief of the U.S. Forest Service; Thomas J. Vilsack, U.S. Secretary of Agriculture, Defendants,andRosemont Copper Company, Intervenor-Defendant-Appellant.

No. 19-17585

No. 19-17586

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 1, 2021 Phoenix, Arizona

Filed May 12, 2022

Amelia G. Yowell (argued), Andrew C. Mergen, Andrew A. Smith, and Sommer H. Engels, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Stephen A. Vaden, General Counsel, United States Department of Agriculture; Washington, D.C.; for Defendants-Appellants.

Julian W. Poon (argued), Theodore J. Boutrous Jr., Bradley J. Hamburger, and Virginia L. Smith, Gibson Dunn & Crutcher LLP, Los Angeles, California; Katherine C. Yarger, Gibson Dunn & Crutcher LLP, Denver, Colorado; Norman D. James, Fennemore Craig P.C., Phoenix, Arizona; for Intervenor-Defendant-Appellant.

Heidi McIntosh (argued), Stuart Gillespie, and Caitlin Miller, Earthjustice, Denver, Colorado, for Plaintiffs-Appellees Tohono O'odham Nation, Hopi Tribe, and Pascua Yaqui Tribe.

Roger Flynn (argued) and Jeffrey C. Parsons, Western Mining Action Project, Lyons, Colorado; Marc D. Fink, Center for Biological Diversity, Duluth, Minnesota; Allison N. Melton, Center for Biological Diversity, Crested Butte, Colorado; for Plaintiffs-Appellees Center for Biological Diversity, Save the Scenic Santa Ritas, Arizona Mining Reform Coalition, and Grand Canyon Chapter of the Sierra Club.

Ronald W. Opsahl, Opsahl Law Office LLC, Lakewood, Colorado, for Amicus Curiae Southern Arizona Business Coalition.

R. Timothy McCrum and Elizabeth B. Dawson, Crowell & Moring LLP, Washington, D.C.; Katie Sweeney, Executive Vice President and General Counsel, National Mining Association, Washington, D.C.; for Amici Curiae National Mining Association (including Member State Mining Associations) and Chamber of Commerce of the United States of America.

Alison C. Hunter, Holland & Hart LLP, Boise, Idaho; Laura K. Granier, Holland & Hart LLP, Reno, Nevada; for Amicus Curiae American Exploration and Mining Association.

Matthew N. Newman, Native American Rights Fund, Anchorage, Alaska; David L. Gover, Native American Rights Fund, Boulder, Colorado; Joel West Williams, Native American Rights Fund, Washington, D.C.; for Amicus Curiae National Congress of American Indians, Inter-Tribal Association of Arizona, Association of American Indian Affairs, and Two Federally Recognized Tribal Nations.

Derrick Beetso, National Congress of American Indians, Washington, D.C., for Amicus Curiae National Congress of American Indians.

Lori Potter and Sarah C. Judkins, Kaplan Kirsch & Rockwell LLP, Denver, Colorado, for Amici Curiae Law Professors.

Regina L. Nassen and Victoria Buchinger, Deputy County Attorneys, Civil Division, Pima County Attorney's Office, Tucson, Arizona, for Amici Curiae Pima County and Pima County Regional Flood Control District.

Before: William A. Fletcher, Eric D. Miller, and Danielle J. Forrest, Circuit Judges.

Opinion by Judge W. Fletcher ;

Dissent by Judge Forrest

OPINION

W. FLETCHER, Circuit Judge:

Rosemont Copper Company seeks to dig a large open-pit copper mine in the Santa Rita Mountains just south of Tucson, Arizona. The proposed mining operation would be partly within the boundaries of the Coronado National Forest. The pit would be 3,000 feet deep and 6,500 feet wide, and would produce over five billion pounds of copper. No one disputes that Rosemont has valid mining rights on the land where the pit would be located.

Pit mining produces large amounts of waste rock. Rosemont proposes to dump 1.9 billion tons of waste rock near its pit, on 2,447 acres of National Forest land. The pit itself will occupy just over 950 acres. When operations cease after twenty to twenty-five years, waste rock on the 2,447 acres would be 700 feet deep and would occupy the land in perpetuity.

The United States Forest Service ("the Service") approved Rosemont's mining plan of operations ("MPO") on two separate grounds. First, the Service concluded that Section 612 of the Surface Resources and Multiple Use Act of 1955 ("Multiple Use Act") gives Rosemont the right to dump its waste rock on open National Forest land, without regard to whether it has any mining rights on that land, as a "use[ ] reasonably incident" to its operations at the mine pit. Second, the Service assumed that under the Mining Law of 1872 ("Mining Law") Rosemont has valid mining claims on the 2,447 acres it proposes to occupy with its waste rock. Based on that assumption, the Service concluded that Rosemont has the right to occupy those claims.

Relying on these two grounds, the Service approved Rosemont's MPO, concluding under Section 612 of the Multiple Use Act and under the Mining Act that it had only the authority contained in its Part 228A regulations to regulate Rosemont's proposal to occupy its mining claims with its waste rock. The Service suggested that if it had greater regulatory authority than that provided by its Part 228A regulations, it might not have approved the MPO in its current form.

The district court held that neither ground supports the Forest Service's approval of Rosemont's MPO. It held that Section 612 grants no rights beyond those granted by the Mining Law. It further held that there is no basis for the Service's assumption that Rosemont's mining claims are valid under the Mining Law. Indeed, based on a conclusion that there are no valuable minerals on the claims, the court held that the claims are actually invalid. The district court therefore concluded that the Service acted arbitrarily and capriciously in approving the entirety of Rosemont's MPO in its Final Environmental Impact Statement ("FEIS") and Record of Decision ("ROD").

We affirm the district court. We agree with its holding that Section 612 grants no rights beyond those granted by the Mining Law. Indeed, the Government has abandoned on appeal any argument that Section 612 supports the Service's decision. We also agree with its holding that the Service had no basis for assuming that Rosemont's mining claims are valid under the Mining Law. Although our reasoning differs slightly from that of the district court, we also agree with the court's holding that the claims are invalid. We do not rely, as the district court did, on a conclusion that no valuable minerals exist on the claims. Rather, we hold that the claims are invalid because no valuable minerals have been found on the claims.

We do not know what the Service would have done if it had understood that Section 612 grants no rights beyond those granted by the Mining Law and that Rosemont's mining claims are invalid under the Mining Law. In particular, we do not know whether the Service would have decided that Part 228A regulations are applicable to Rosemont's proposal to occupy invalid claims with its waste rock, and, if applicable, whether the Service would have construed those regulations to allow such occupancy. These are decisions that must be made in the first instance by the Service rather than by our court. We therefore remand to the Service for such further proceedings as it deems appropriate, informed by the Government's concession that Section 612 grants no rights beyond those granted by the Mining Law, and by our holding that Rosemont's mining claims on the 2,447 acres are invalid under the Mining Law.

I. Statutes and Associated Regulations

We begin with a brief summary of the interlocking statutes and regulations relevant to this appeal.

(A) The Mining Law of 1872 : The Mining Law of 1872 (the "Mining Law") gives to United States citizens free of charge, except for small filing and other fees, mining rights upon discovery of "valuable minerals" on federal land. See Mining Law of 1872, ch. 152, 17 Stat. 91 (codified as amended at 30 U.S.C. §§ 21 to 54 ). When first enacted, the Mining Law was exceedingly broad, encompassing almost all federal land in the American West, and encompassing a wide range of valuable minerals.

In succeeding years, the scope of the Mining Law has been substantially reduced. First, Congress, the President, and the Department of the Interior have withdrawn many areas of federal land from availability under the Mining Law. See, e.g. , Act of March 1, 1872, ch. 24, § 1, 17 Stat. 32 (codified at 16 U.S.C. § 21 ) (withdrawing Yellowstone National Park); United States v. Midwest Oil Co. , 236 U.S. 459, 480–81, 35 S.Ct. 309, 59 L.Ed. 673 (1915) (upholding President Taft's withdrawal of three million acres for petroleum extraction); Nat'l Mining Ass'n v. Zinke , 877 F.3d 845, 866–70 (9th Cir. 2017) (upholding the Department of the Interior's withdrawal of one million acres for uranium mining). Second, Congress has declared that some mineral...