9th Circuit upholds uranium mining ban near Grand Canyon
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January 02, 2018
9th Circuit upholds uranium mining ban near Grand Canyon

In a sweeping rejection of every one of a dozen arguments made by the mining industry, a panel of the U.S. Court of Appeals for the 9th Circuit affirmed a district court’s ruling that upheld the U.S. Department of the Interior’s (DOI) mining prohibition covering over 1 million acres of northern Arizona land near Grand Canyon National Park. The opinion comprises two parts. In the first and lengthier part, the panel rebuts the contention by the appellants that DOI’s withdrawal is invalid under the Federal Land Policy and Management Act of 1976 (FLPMA) because it is inextricably tied to an unconstitutional provision in that law. In the second part, the panel marches through and disagrees with assertions that the withdrawal violated the National Environmental Policy Act (NEPA), the Administrative Procedures Act (APA), the National Forest Management Act, and the establishment clause of the Constitution.

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The opinion keeps in place the 2012 decision by the DOI to withdraw claims to mine uranium on federal land near the Grand Canyon for up to 20 years. While no party in the litigation disagrees that the disputed area contains uranium deposits, there is considerable disagreement about how much, with appellants asserting that there is five times the 162,964 tons the U. S. Geological Survey (USGS) estimated in a 2010 report. But the DOI subsequently decided that there was sufficient uncertainty about the potential impact of mining on groundwater to issue the 20-year ban, a length of time the DOI said would allow for more conclusive studies about the level of environmental risk.  DOI’s decision was backed by an Environmental Impact Statement (EIS), as required by NEPA, which was faulted by the appellants but found perfectly reasonable by the courts.

While the ruling keeps the 20-year ban in place, the current administration appears to be making plans to exercise its authority to lift it. Specifically, in an October 2017 report on energy development, the U. S. Department of Agriculture says that it is coordinating with the DOI to revisit the 2012 action to “facilitate exploration for, and possibly development of, uranium resources” in the Grand Canyon watershed.

Severable or not

The FLPMA contains a provision that allows Congress to veto an executive branch withdraw of a large tract of land from mineral development without presenting it to the president. But in 1983, the U.S. Supreme Court ruled that Congress may invalidate an agency’s exercise of lawfully delegated power in one way only—through bicameral passage of legislation followed by presentment to the president (I.N.S. v. Chadha). Accordingly, in this case, the District Court ruled that the FLPMA veto provision is unconstitutional, a finding that the 9th Circuit panel agreed with and that no party in the case disputed.

But the plaintiffs also asserted that the unconstitutional veto authority in section 240(c)(1) of the FLPMA is a part of the FLPMA [Section 240(c)(1)] that also contains the secretary of the Interior’s large-tract withdrawal authority and that those two authorities are not severable. In other words, because the veto authority is unconstitutional, the large-tract withdrawal authority must also be unconstitutional. The district court found that the two provisions were severable, and the panel agreed for several reasons.

For example, said the panel, the language and structure of the FLPMA do not provide the requisite “strong evidence” that the secretary’s authority to make large-tract withdrawals rises and falls with Congress’s veto power over those withdrawals. The panel points out that Congress in the FLPMA imposed significant limitations on the secretary’s withdrawal authority and provided for congressional oversight over executive withdrawals by means other than the legislative veto. One of those means is that Congress reserved to itself the exclusive authority to make permanent large-tract withdrawals, limiting the secretary’s large-tract withdrawals to no more than 20 years. The FLPMA also requires that the secretary must meet at least 12 reporting requirements to justify a large-tract withdrawal and must also provide Congress with a Notice of Intent to make such a withdrawal.

The panel concluded:

“[G]iven FLPMA’s notice and report provisions, Congress has the opportunity to pass timely and informed legislation reversing any withdrawal—legislation that would then be submitted for presidential approval (or veto, followed by a potential override). Since the passage of FLPMA, the Secretary has exercised large-tract withdrawal authority 82 times without Congress ever attempting to override that authority. Nor, since Chadha was decided more than three decades ago, has Congress amended the relevant section of the statute to enhance congressional oversight or limit the Secretary’s withdrawal authority. That history further undermines the Appellants’ contention that the legislative veto was an essential and indispensable component of FLPMA without which Congress would never have delegated large-tract withdrawal authority.”

In other words, the withdrawal authority stands on its own and apart from the unconstitutional veto authority.

Remaining issues

Following its rejection of the nonseverability claim, the panel methodically quashed every one of the remaining plaintiff contentions.  The main merit-based argument by the appellants is that the scientific evidence in the record does not justify the secretary’s decision to withdraw this large tract of land to protect water resources. The panel disagreed.

“The USGS Report and the final [NEPA environmental impact statement] establish that Interior did have evidence that additional uranium mining could present a risk of contamination,” the panel stated. “The USGS Report analyzed over 1,000 water samples from 428 different locations within the region, and found that 70 sites exceeded the EPA’s primary or secondary heavy metal contaminant levels. Samples from 15 springs and five wells indicated uranium concentrations exceeding the EPA’s maximum contaminant levels. The USGS Report acknowledged that the evidence was ‘inconclusive’ regarding a connection between those findings and mining activity, but could not rule out such a connection.”

The panel concluded: “The record demonstrates that the Secretary conducted a carefully reasoned analysis, considered the available scientific data, weighed diverse opinions from Interior experts and public commenters, recognized the limitations of the available scientific evidence, and concluded that a cautious approach was necessary to forestall even a low probability of contamination in excess of EPA thresholds—thresholds developed in response to serious concerns about human health.”

Other contentions made by and rejected by the panel involve cultural and tribal resources on the withdrawn land, visual resources and wildlife, economic benefits, boundaries, multiple use mandates, sufficiency of existing laws and regulations, government entanglement with religion, missing data in the EIS, and coordination with counties in the withdrawn land.

The panel’s opinion in National Mining Association v. Ryan Zinke is here.

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