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Ninth Circuit Reinforces Executive Power to Withdraw Public Lands From Mining Extraction

Wednesday, December 20, 2017

Robert Kelsey

Associate Editor, Environmental Law Reporter

Following President Trump’s announcement that he was reducing the size of the Bears Ears and Grand Staircase-Escalante National Monuments, there have been questions as to the extent of the executive branch’s power to manage federal lands. The announcement has put the Antiquities Act, which grants the president the authority to protect federal lands, under a microscope. Recently, two cases concerning the U.S. Department of Interior’s (DOI’s) power to manage federal land under the Federal Land Policy and Management Act (FLPMA) to protect resources were decided in the Ninth Circuit, cementing its power to do so.

The Grand Canyon watershed is at the center of recent court cases (Photo: Pxer/Creative Commons)

In National Mining Association v. Zinke, the Ninth Circuit rejected challenges to a 2012 DOI decision to withdraw, for up to 20 years, over one million acres of land near Grand Canyon National Park from new uranium mining claims. DOI withdrew the lands, subject to existing valid claims, to protect water resources in the Grand Canyon watershed and the Colorado River from possible contamination and to s preserve cultural and tribal resources. Mining companies and local governments challenged the decision, claiming that FLPMA contains an unconstitutional legislative veto provision that invalidates the Secretary’s withdrawal power.

A lower court held that although the FLPMA provision allowing legislative veto of a land withdrawal was unconstitutional, that provision could be read separately from the withdrawal power, thereby leaving the Secretary of the Interior's authority to withdraw land intact. The appellate court agreed and held that neither the Secretary's reasoning for the withdrawal nor the boundaries it set for the withdrawal were arbitrary or capricious. In effect, this case affirms DOI’s ability to cordon off public lands in order to protect water and deals a blow to industry groups seeking to begin uranium extraction.

In a related case, Havasupai Tribe v. Forest Service, the Ninth Circuit affirmed a district court's decision rejecting challenges to a mining company's uranium mining rights on public lands around Grand Canyon National Park. The case concerned a 1988 plan to build and operate the Canyon Mine, a uranium mine in the area around Red Butte. The Forest Service approved the plan, at which time it prepared an environmental impact statement (EIS) under NEPA and assessed the impact of the project under the National Historic Preservation Act (NHPA). The mine operator then built surface facilities and drilled the first 50 feet of a 1,400-foot shaft, but due to unfavorable conditions in the uranium market, it placed the mine on “standby” status in 1992. Twenty years later, DOI withdrew more than one million acres of public lands around Grand Canyon from new mining claims for 20 years, subject to valid existing rights. The withdrawn land included the mine. On April 18, 2012, the Forest Service issued a “Mineral Report” and concluded that the defendant mining company had valid existing rights that were established prior to the 2012 withdrawal decision.

Concerned environmental groups challenged Mineral Report, claiming that it was a major federal action that violated NEPA because no EIS was performed. They also claimed that the Service violated the NHPA by not conducting a full consultation. The court held that although the determination was a major federal action, the mining company did not require any further federal action to resume mining because the government’s original approval of the 1988 plan was a major federal action that had already been completed. Nor did the Service violate the NHPA as it simply acknowledged the validity of a claim and did not permit, license, or approve resumed operations at Canyon Mine.

Although Havasupai is focused on an area that was subject to a valid existing right, thereby exempting it from the land withdrawal, the decision underscores DOI’s land withdrawal authority under FLPMA.  More important to conservationists, however, is the Zinke case, which held the legislative veto under FLMPA unconstitutional. As such, the current Congress, which seems to be pro-development, cannot unilaterally invalidate withdrawals. This includes recent land withdrawals under FLPMA, such as the 95,805 acres of National Forest System lands on the Rogue River-Siskiyou National Forest, which has been the target of one pro-development  congressman that called for a review of all Obama-era land withdrawals.

So while we do not yet know how courts will decide matters that fall under the Antiquities Act, at least conservationists can breathe a small sigh of relief that the courts have upheld the government’s power to preserve lands from development under FLPMA.