• Supreme Court Declines to Review Decision Preventing New Uranium Mines Near Grand Canyon
  • January 10, 2019 | Author: Farris J. Gillman
  • Law Firm: Snell & Wilmer L.L.P. - Phoenix Office
  • On October 1st, the U.S. Supreme Court declined to review a Ninth Circuit Court of Appeals decision in a case that could have reopened an area of Arizona located north of the Grand Canyon and south of Utah, known as the Arizona Strip, to new mines, including uranium mines. Denying review, however, does not prevent all uranium mining in the area because certain preexisting mines, known as “zombie mines,” may be allowed to operate.

    Background: Uranium Mining in the Southwest. The area surrounding the Grand Canyon is part of a uranium belt that is home to the highest-grade known uranium deposits in the United States.[1] The Arizona Wilderness Act of 1984 opened all lands not designated as “wilderness” near the Grand Canyon to mining operations following a boom in uranium mining in the early 1980s. Soon after, uranium prices sharply declined, and most or even all uranium mining in the area ceased. New lease applications were abandoned. In the late 2000s uranium prices rose again, leading several companies to consider opening or reopening mining operations on the Arizona Strip.

    Opponents argue that uranium mines should remain prohibited because they threaten the Colorado River’s water quality. Mining supporters counter that the River already carries 60 metric tons of uranium through the Canyon each year.[2]

    As part of the Federal Land Policy and Management Act of 1976 (“FLPMA”), Congress delegated authority to the Secretary of the Interior to withdraw federal lands from availability for mining operations. More specifically, the Secretary could make emergency withdrawals for two years, indefinite withdrawals of fewer than 5,000 acres, and withdrawals of more than 5,000 acres for up to 20 years. The act also permitted Congress to veto the 20-year withdrawals of 5,000 or more acres.

    In 2009, Interior Secretary Kenneth Salazar signed a two-year moratorium preventing new mines from opening on approximately 1 million acres on the Arizona Strip. In response, Arizona Senators John McCain and Jon Kyl proposed the Northern Arizona Mining Continuity Act of 2011 to block the ban on uranium mining in that same area.[3] The proposed bill never picked up momentum. In January 2012, Salazar signed yet another ban, this one lasting 20 years.

    Significance of National Mining Association v. Zinke. Former Secretary of Interior Salazar’s 20-year withdrawal of more than 5,000 acres would have been subject to a legislative veto under the terms of FLPMA. Years after FLPMA was enacted, the Supreme Court found legislative vetoes unconstitutional in a case unrelated to mining. Since the legislative veto is unconstitutional, the question presented to the court in National Mining Association v. Zinke was whether the delegation of authority to the Department of Interior to make large withdrawals of greater than 5,000 acres still stands. If it does not, then Secretary Salazar had no authority to withdraw the land from availability for mining. The National Mining Association sued to challenge the withdrawal in light of the unconstitutionality of the legislative veto. The District Court ruled against the Association and the Ninth Circuit affirmed. The Association then sought Supreme Court review. The Supreme Court’s refusal, earlier this month, to hear the case means that the Court of Appeals’ decision stands, as does the 20-year withdrawal.

    Nevertheless, Uranium Mining Persists. The withdrawal does not preclude old or abandoned mines from being reopened. In fact, several uranium mines across northern Arizona have seen recent activity. Mining leases obtained before the Interior Department’s withdrawals are still valid and potentially able to operate, even if the mines themselves closed in the interim. Reinitiating mining operations, however, still requires state permitting, such as air and water permits. Many, if not all, of the permits for the closed mines expired years ago. Companies seeking to reopen their mines have been able to obtain new permits from the Arizona Department of Environmental Quality for several sites.

    The resurrected mines, nicknamed “zombie mines,” have faced legal challenges as well. In Havasupai Tribe v. United States, the Tribe attempted to challenge a state-approved plan of operation for a mine located on the Kaibab National Forest on religious grounds and on the basis that the Environmental Impact Statement did not comply with the National Environmental Policy Act (“NEPA”). The District Court allowed the mine to reopen, and the Ninth Circuit Court of Appeals affirmed. Another case, Center for Biological Diversity v. Salazar challenged a mine located on the Arizona Strip, claiming that the mining plan of operations was outdated and therefore ineffective, and that the Bureau of Land Management had not met the necessary NEPA requirements. The Ninth Circuit held that temporary cessation of operations does not cause a mining plan of operations to automatically terminate. In a third case, Grand Canyon Trust v. Williams, the U.S. District Court ruled that the Forest Service completing a valid existing rights determination that allowed the mine to reopen did not constitute a “major federal action” that would trigger a new NEPA review. Instead, the court concluded that the process was a practical, not legal requirement.

    Looking Forward. Secretary Salazar’s 20-year withdrawal remains in place and has not been revoked by the Trump administration, which defended the withdrawal in National Mining Association v. Zinke. In broad terms, Zinke is significant because it upholds the Department of Interior’s power to withdraw incredibly large tracts of federal land from potential mining interests, and Congress can only prevent this by passing new legislation. Therefore, it seems that the executive branch is where interested parties should focus their efforts concerning what federal lands are available for mining leases, whether they want change or homeostasis.

    [1] Melissa Sevigny, As Uranium Mines Reopen, Controversy Surrounds the Grand Canyon Region, KNAU Ariz. Pub. Radio (Nov. 16, 2015).

    [2] Jon E. Spencer & Karen Wenrich, Breccia-pipe Uranium Mining in the Grand Canyon Region and Implications for Uranium Levels in the Colorado River Water, Ariz. Geological Surv. Rep. OFR-11-04, 8-9 (April 2011).

    [3] Northern Arizona Mining Continuity Act of 2011, S. 1690, 112th Congress (as introduced on Oct. 12, 2011).