Nat'l Mining Ass'n v. Zinke

877 F.3d 845

NATIONAL MINING ASSOCIATION, Plaintiff–Appellant,

v.Ryan ZINKE, Secretary of the Interior; United States Department of the Interior; George E. Perdue, Secretary of Agriculture; United States Department of Agriculture; Bureau of Land Management; Michael Nedd, acting director, Bureau of Land Management; United States Forest Service, Defendants–Appellees,Grand Canyon Trust; Sierra Club; National Parks Conservation Association; Center for Biological Diversity; Havasupai Tribe, Intervenor–Defendants–Appellees.

Arizona Utah Local Economic Coalition, on behalf of member the Board of Supervisors, Mohave County, Arizona ; Metamin Enterprises USA, Inc., Plaintiffs–Appellants,

v.Ryan Zinke, Secretary of the Interior; United States Department of the Interior; George E. Perdue, Secretary of Agriculture; United States Department of Agriculture; Bureau of Land Management; Michael Nedd, acting director, Bureau of Land Management; United States Forest Service, Defendants–Appellees,Grand Canyon Trust; Sierra Club; National Parks Conservation Association; Center for Biological Diversity; Havasupai Tribe, Intervenor–Defendants–Appellees.

American Exploration & Mining Association, Plaintiff–Appellant,

v.Ryan Zinke, Secretary of the Interior; United States Department of the Interior; George E. Perdue, Secretary of Agriculture; United States Department of Agriculture; Bureau of Land Management; Michael Nedd, acting director, Bureau of Land Management; United States Forest Service, Defendants–Appellees,Grand Canyon Trust; Sierra Club; National Parks Conservation Association; Center for Biological Diversity; Havasupai Tribe, Intervenor–Defendants–Appellees.

Gregory Yount, Plaintiff–Appellant,

v.Ryan Zinke, Secretary of the Interior; United States Department of the Interior; George E. Perdue, Secretary of Agriculture; United States Department of Agriculture; Bureau of Land Management; Michael Nedd, acting director, Bureau of Land Management; United States Forest Service, Defendants–Appellees,Grand Canyon Trust; Sierra Club, National Parks Conservation Association; Center for Biological Diversity; Havasupai Tribe, Intervenor–Defendants–Appellees.

No. 14-17350

No. 14-17351

No. 14-17352

No. 14-17374

United States Court of Appeals, Ninth Circuit.

Filed December 12, 2017

Argued and Submitted December 15, 2016^* San Francisco, California

Robert Timothy McCrum (argued), Crowell & Moring LLP, Washington, D.C., for Plaintiff–Appellant National Mining Association.

Jeffrey Wilson McCoy (argued) and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, for Plaintiff–Appellant American Exploration & Mining Association.

Constance E. Brooks, Danielle Hagen, and Cody Doig, C. E. Brooks & Associates P.C., Denver, Colorado, for Plaintiff–Appellant Arizona Utah Local Economic Coalition.

Gregory Yount, Chino Valley, Arizona, pro se Plaintiff–Appellant.

Brian C. Toth (argued) and John C. Most, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Aaron G. Moody, Kendra Nitta, and Sonia Overholser, Office of the Solicitor, United States Department of the Interior; Pamela P. Henderson, Office of the General Solicitor, United States Department of Agriculture; for Defendants–Appellees.

Edward B. Zukoski (argued), Earthjustice Denver, Colorado; Roger Flynn, Western Mining Action Project, Lyons, Colorado; Aaron M. Paul, Grand Canyon Trust, Denver, Colorado; for Intervenor–Defendants–Appellees.

Anthony L. Rampton, Kathy A.F. Davis, and Roger R. Fairbanks, Assistant Attorneys General; Bridget K. Romano, Solicitor General; Sean D. Reyes, Attorney General; Office of the Attorney General, Salt Lake City, Utah; Mark Brnovich, Attorney General, Office of the Attorney General, Phoenix, Arizona; Tim Fox, Attorney General, Department of Justice, Helena, Montana; Adam Paul Laxalt, Attorney General, Office of the Attorney General, Carson City, Nevada; for Amici Curiae States of Utah, Arizona, Montana, and Nevada.

Heather Whiteman Runs Him and Matthew L. Campbell, Native American Rights Fund, Boulder, Colorado, for Amici Curiae Paiute Indian Tribe of Utah, Hualapai Tribe of the Hualapai Reservation, Kaibab Band of Paiute Indians, San Juan Southern Paiute Tribe, Northwestern Band of the Shoshone Nation, Morning Star Institute, and National Congress of American Indians.

Katherine Belzowski, Attorney; Ethel B. Branch, Attorney General; Navajo Nation Department of Justice, Window Rock, Arizona; for Amicus Curiae Navajo Nation.

Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges, and Frederic Block, District Judge.^**

BERZON, Circuit Judge:

We consider challenges to the decision of the Secretary of the Interior to withdraw from new uranium mining claims, for up to twenty years, over one million acres of land near Grand Canyon National Park. Determining the appropriate balance between safeguarding an iconic American natural wonder and permitting extraction of a critically important mineral is at the heart of the present dispute.

The fission of uranium atoms into smaller component parts releases a huge amount of energy—enough to sustain a nuclear chain reaction, as scientists discovered in the first half of the last century. The design and construction of nuclear reactors and weaponry followed. In the ensuing years, uranium became, at times, highly valuable, though prices rose and fell dramatically in response to swings in demand. Uranium also entered the cultural lexicon.¹

In 1947, large quantities of uranium were discovered in Arizona near Grand Canyon National Park, a treasured natural wonder and World Heritage Site—called, by John Wesley Powell, "the most sublime spectacle in nature." John Wesley Powell, Canyons of the Colorado 394 (1895). Northern Arizona saw limited uranium mining until a spike in uranium prices in the late 1970s led to a uranium mining surge in the 1980s and 1990s, when six new mines opened. But the mining boom did not last. With the collapse of the Soviet Union and consequent decommissioning of large numbers of nuclear warheads, demand for uranium dropped dramatically in the 1990s. Uranium production in much of northern Arizona stopped.

Prices spiked again in 2007, and renewed interest in mining operations in the region followed. With that resurgence came concerns about the environmental impact of the extraction of radioactive materials such as uranium.

Reflecting those concerns, then-United States Secretary of the Interior ("the Secretary")² Kenneth L. Salazar published a Notice of Intent in the Federal Register to withdraw from new uranium mining claims, for a period of up to twenty years, a tract of nearly one million acres of federally owned public land. See Federal Land Policy and Management Act of 1976 ("FLPMA")³ § 204(c), 43 U.S.C. § 1714 (authorizing the Secretary to make, revoke, or modify such withdrawals subject to certain conditions).⁴ After an extended study period, the Secretary issued a Record of Decision ("ROD") in January 2012 announcing the withdrawal of 1,006,545 acres.

Several entities and one private individual opposed to the withdrawal challenged the Secretary's decision in four separate actions filed in the District of Arizona. Parties interested in supporting the withdrawal moved to intervene, including four environmental groups and the Havasupai Tribe. The district court, in two well-crafted opinions, rejected the various challenges to the withdrawal.

I. Background

We begin with a brief history of the political and legislative backdrop against which FLPMA was enacted in 1976.

The Property Clause of the U.S. Constitution vests in Congress the "power to dispose of and make all needful rules and regulations respecting ... property belonging to the United States," including federally owned public lands. U.S. Const., Art. IV, § 3, cl. 2. Congress has long used its authority under the Property Clause to permit the purchase of mining rights and exploration on federal lands, most notably in the General Mining Act of 1872, 30 U.S.C. §§ 22 – 54. Under that Act, "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase." 30 U.S.C. § 22.

From early on, the executive branch has asserted and exercised the authority to withdraw federally owned lands from claims for mineral extraction. See United States v. Midwest Oil Co. , 236 U.S. 459, 469–72, 35 S.Ct. 309, 59 L.Ed. 673 (1915). As Midwest Oil recognized, although Congress had delegated no "express statutory authority" to withdraw previously available land from mineral exploitation, the executive branch had made a "multitude" of temporary such withdrawals, and Congress had "uniformly and repeatedly acquiesced in the practice."

Id . at 469–71, 35 S.Ct. 309. That acquiescence, Midwest Oil held, constituted an "implied grant of power" from Congress to the executive permitting withdrawal of public lands from mineral extraction claims. Id . at 475, 35 S.Ct. 309. For decades after Midwest Oil , Congress did little to restrain the executive's withdrawal authority, and the executive branch made liberal use of it.

After World War II, however, demand for the commercial use of public land increased considerably. To address that increased demand, Congress in 1964 established the Public Land Law Review Commission ("PLLRC"), composed of several members of Congress and presidential appointees, to conduct a comprehensive review of federal land law and policy and propose suggestions for more efficient administration of public lands. After several years of study the PLLRC issued a report making 137 specific recommendations to Congress concerning the use and governance of public lands. PLLRC, One Third of the Nation's Land ix–x, 9 (1970) (hereinafter "PLLRC Report").

The PLLRC Report observed that the roles of Congress and the executive branch with respect to public land use had "never been carefully defined,"...