Havasupai Tribe v. Heather Provencio , 906 F.3d 1155 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAVASUPAI TRIBE, No. 15-15754
Plaintiff-Appellant,
D.C. No.
and 3:13-cv-08045-DGC
GRAND CANYON TRUST;
CENTER FOR BIOLOGICAL
DIVERSITY; SIERRA CLUB,
Plaintiffs,
v.
HEATHER PROVENCIO, Forest
Supervisor, Kaibab National
Forest; UNITED STATES FOREST
SERVICE, an agency in the U.S.
Department of Agriculture,
Defendants-Appellees,
ENERGY FUELS RESOURCES
(USA), INC.; EFR ARIZONA
STRIP LLC,
Intervenor-Defendants-
Appellees.
2 HAVASUPAI TRIBE V. PROVENCIO
GRAND CANYON TRUST; No. 15-15857
CENTER FOR BIOLOGICAL
DIVERSITY; SIERRA CLUB, D.C. No.
Plaintiffs-Appellants, 3:13-cv-08045-DGC
and
ORDER AND
HAVASUPAI TRIBE, OPINION
Plaintiff,
v.
HEATHER PROVENCIO, Forest
Supervisor, Kaibab National
Forest; UNITED STATES FOREST
SERVICE, an agency in the U.S.
Department of Agriculture,
Defendants-Appellees,
ENERGY FUELS RESOURCES
(USA), INC.; EFR ARIZONA
STRIP LLC,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted December 15, 2016
San Francisco, California
HAVASUPAI TRIBE V. PROVENCIO 3
Filed October 25, 2018
Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Frederic Block, District Judge.*
Order;
Opinion by Judge Block
SUMMARY**
Mining Rights
The panel withdrew the opinion filed December 12, 2017,
and filed a new opinion that affirmed with one exception the
district court’s rejection of challenges to the determination by
the United States Forest Service that Energy Fuels Resources
(USA), Inc., and EFR Arizona Strip LLC had an existing
right to operate a uranium mine on land around Grand
Canyon National Park.
In 1988, the Forest Service approved a plan to build and
operate what became known as Canyon Mine, a 17.4 acre
uranium mine in and around Red Butte. In National Mining
Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), the court
upheld the 2012 decision of the Secretary of the Interior to
withdraw, for twenty years, more than one million acres of
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 HAVASUPAI TRIBE V. PROVENCIO
public lands around Grand Canyon National Park from new
mining claims. The withdrawal did not extinguish “valid
existing rights.” On April 18, 2012, the Forest Service issued
a Mineral Report with findings; and based on those findings,
the Forest Service concluded that Energy Fuels had a “valid
existing right” to mine within the withdrawal area. The
Havasupai Tribe and environmental groups challenged the
determination.
The panel rejected the Forest Service’s argument that the
court lacked jurisdiction. The panel held that the Forest
Service’s Mineral Report was a final agency action. The
panel further held that the Mineral Report’s conclusion that
Energy Fuels had valid existing rights at the time of the
withdrawal fell within the plain meaning of “recognition of
a claim.” 5 U.S.C. § 551(11)(B).
The panel held that the environmental impact statement
prepared in 1988 satisfied the National Environmental Policy
Act. The panel further held that the district court properly
applied Center for Biological Diversity v. Salazar, 706 F.3d
1085 (9th Cir. 2013). As in that case, the original approval of
the plan of operations in 1988 was a major federal action, and
the resumed operation of Canyon Mine did not require any
additional government action.
The National Historical Preservation Act requires
consultation pursuant to section 106 prior to any
“undertaking.” 54 U.S.C. § 306108. The panel held that Red
Butte was not a “historic property” eligible for inclusion on
the National Register until 2010, and as a result, the Act did
not obligate the Forest Service to take the site into account
when it conducted a full section 106 consultation in 1986.
The panel further held that the current definition of
HAVASUPAI TRIBE V. PROVENCIO 5
“undertaking” did not encompass a continuing obligation to
evaluate previously approved projects. The panel concluded
that the 2012 Mineral Report was not an “undertaking”
requiring consultation under the Act.
The Federal Land Policy and Management Act of 1976
(“FLPMA”) confers on the Secretary of the Interior authority
to withdraw federal lands for specified purposes, but makes
that authority “subject to valid existing rights.” Plaintiffs
challenged the merits of the Forest Service’s conclusion that
Energy Fuels had “valid existing rights” predating the
withdrawal because its predecessors-in-interest had
discovered a deposit of minable uranium ore. The district
court looked to the General Mining Act of 1872 to make its
valid existing rights determination. The panel held that the
FLPMA, and not the Mining Act, formed the legal basis of
plaintiff’s claim that Canyon Mine should not be exempt
from the withdrawal because the valid existing right
determination was in error. The panel vacated the district
court’s judgment with respect to this claim, and remanded for
consideration on the merits.
COUNSEL
Richard W. Hughes (argued) and Reed C. Bienvenu,
Rothstein Donatelli LLP, Santa Fe, New Mexico, for
Plaintiff-Appellant Havasupai Tribe.
Neil Levine (argued), Law Office of Neil Levine, Denver,
Colorado; Aaron Paul, Grand Canyon Trust, Denver,
Colorado; Marc Fink, Center for Biological Diversity,
Duluth, Minnesota; Roger Flynn, Western Mining Action
Project, Lyons, Colorado; for Plaintiffs-Appellants Grand
6 HAVASUPAI TRIBE V. PROVENCIO
Canyon Trust, Center for Biological Diversity, and Sierra
Club.
Thekla Hansen-Young (argued), Jared S. Pettinato, Michael
T. Gray, and Andrew C. Mergen, Attorneys; Jeffrey H.
Wood, Acting Assistant Attorney General; Environment &
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Nicholas L. Pino and Pamela P.
Henderson, Attorneys; Stephen Alexander Vaden, Principal
Deputy General Counsel; Office of General Counsel, United
States Department of Agriculture; for Defendants-Appellees.
David J. DePippo (argued), Hunton & Williams LLP,
Richmond, Virginia; Michael K. Kennedy and Bradley J.
Glass, Gallagher & Kennedy P.A., Phoenix, Arizona; for
Intervenor-Defendants-Appellees.
Eric Biber, Professor of Law, Berkley Law, Berkeley,
California, for Amici Curiae Environmental and Natural
Resource Law Professors.
ORDER
Judges Berzon and Murguia have voted to deny the
petitions for rehearing en banc, and Judge Block so
recommends. The full court has been advised of the petitions
and no judge has requested a vote on whether to rehear the
matter en banc. Fed. R. App. P. 35. Accordingly, the
petitions for rehearing en banc are DENIED.
The Opinion filed December 12, 2017, appearing at 876
F. 3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited
as precedent by or to this court or any district court of the
HAVASUPAI TRIBE V. PROVENCIO 7
Ninth Circuit. A new opinion is being filed concurrently with
this order. Further petitions for rehearing or rehearing en
banc may be filed.
OPINION
BLOCK, District Judge:
In National Mining Association v. Zinke, 877 F.3d 845(9th Cir. 2017), we upheld the decision of the Secretary of the
Interior to withdraw, for twenty years, more than one million
acres of public lands around Grand Canyon National Park
from new mining claims. That withdrawal did not extinguish
“valid existing rights.” In these consolidated appeals, we
consider challenges by the Havasupai Tribe (“the Tribe”) and
three environmental groups—Grand Canyon Trust, Center for
Biological Diversity and Sierra Club (collectively, “the
Trust”)—to the determination of the United States Forest
Service (the “Forest Service”) that Energy Fuels Resources
(USA), Inc., and EFR Arizona Strip LLC (collectively,
“Energy Fuels”) had a valid existing right to operate a
uranium mine on land within the withdrawal area. As
elaborated below, we affirm, with one exception, the district
court’s order rejecting those challenges.
I
Much of what we said in National Mining Association
concerning the history of uranium mining in the area and the
Secretary’s withdrawal decision is also relevant here. To that
we add some additional background regarding the particular
mine at issue in this case.
8 HAVASUPAI TRIBE V. PROVENCIO
Grand Canyon National Park is bordered to the north and
south by the Kaibab National Forest. The southern portion of
the forest—which is included in the withdrawal area—
contains Red Butte, a site of religious and cultural
significance to the Tribe.
In 1988, the Forest Service approved a plan to build and
operate what became known as Canyon Mine, a 17.4-acre
uranium mine in the area around Red Butte. During the
approval process, the Forest Service prepared an
Environmental Impact Statement (“EIS”) pursuant to the
National Environmental Policy Act of 1969 (“NEPA”).
NEPA requires an EIS for any “major Federal action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C).
At that time, the Forest Service also addressed the mine’s
impact under the National Historic Preservation Act of 1966
(“NHPA”). Section 106 of the NHPA requires federal
agencies, prior to issuing a license for any “undertaking,” to
“take into account the effect of the undertaking on any
[historic property].” Pub. L. No. 89-665, § 106 (codified, as
amended, at 54 U.S.C. § 306108). Historic property is
defined as “any prehistoric or historic district, site, building,
structure, or object included on, or eligible for inclusion on,
the National Register.” 54 U.S.C. § 300308. Based on its
review, the Forest Service required mitigation measures to
minimize the impact on possible relics buried on the site of
the mine. The review did not include nearby Red Butte
because that site was not eligible for inclusion on the National
Register until 1992. See National Historical Preservation Act
Amendments of 1992, Pub. L. No. 102-575, tit. XL, § 4006
(making “[p]roperties of traditional religious and cultural
importance to an Indian tribe” eligible for inclusion on the
HAVASUPAI TRIBE V. PROVENCIO 9
National Register). The EIS, however, did address the tribal
religious significance of Red Butte.
The Tribe sought judicial review, but both the district
court and this Court rejected the challenge. See Havasupai
Tribe v. United States, 752 F. Supp. 1471 (D. Ariz. 1990),
aff’d sub nom. Havasupai Tribe v. Robertson, 943 F.2d 32(9th Cir. 1991), cert. denied, 503 U.S. 959 (1992). The mine
operator built surface facilities and sank the first fifty feet of
a 1,400-foot shaft, but placed the mine on “standby” status in
1992 due to the unfavorable conditions in the uranium
market that we described in National Mining Association.
As noted, the Secretary’s withdrawal decision was
“subject to valid existing rights.” 77 Fed. Reg. 2563 (Jan. 18,
2012). A few months before the decision became final,
Energy Fuels—which had become Canyon Mine’s owner—
notified the Forest Service that it intended to return the mine
to active operations. At the Service’s request, Energy Fuels
agreed not to resume sinking the mineshaft pending review of
its claim of existing rights.
On April 18, 2012, the Forest Service issued a “Mineral
Report.” It found that Energy Fuels’ predecessors-in-interest
had “located” mining claims at the site in 1978 and
“discovered” uranium ore there between 1978 and 1982. It
further found that there were 84,207 tons of uranium ore on
the site, and that “under present economic conditions, the
uranium deposit on the claims could be mined, removed,
transported, milled and marketed at a profit.” Based on those
findings, the Forest Service concluded that Energy Fuel had
“valid existing rights that were established prior to the
mineral withdrawal.”
10 HAVASUPAI TRIBE V. PROVENCIO
The Forest Service also reviewed its 1988 decision,
including its EIS and the mine’s approved plan of operations
(“PoO”), “for any changes in laws, policies or regulations that
might require additional federal actions to be taken before
operations resume.” In a “Mine Review” dated June 25,
2012, it concluded that the existing PoO was “still in effect
and no amendment or modification to the PoO is required
before Canyon Mine resumes operations under the approved
PoO.” It further concluded that “[n]o new federal action
subject to further NEPA analysis is required for resumption
of operations of the Canyon Mine.”
With respect to historic preservation, the Mine Review
concluded that “there will be no new federal undertakings
subject to NHPA Section 106 compliance.” It noted,
however, that Red Butte had become eligible for inclusion on
the National Register, and opined that the site “could be
considered a newly ‘discovered’ historic property.” Applying
the regulation applicable to such discoveries, 36 C.F.R.
§ 800.13(b)(3), the Forest Service immediately contacted the
Tribe to “enter into government-to-government consultation”
to “develop ‘actions’ to resolve or minimize the adverse
effects” on Red Butte. In response, the Tribe insisted on a
revised PoO, a supplemental EIS and a full consultation under
section 106 of the NHPA. The Forest Service and the Tribe
continued to correspond, but never settled on a specific plan
of action. The Mine Review alludes to the likely reason:
“Tribes have commented that most anticipated impacts,
including the most serious impacts, cannot be mitigated if
uranium mining is conducted at the Canyon Mine site.”
Consultation with the Tribe ended in March 2013, when
the Tribe and the Trust jointly filed suit against the Forest
HAVASUPAI TRIBE V. PROVENCIO 11
Service in the district court. Energy Fuels intervened as a
defendant.
As amended, the complaint asserted four claims under the
Administrative Procedure Act (“APA”):
1. the Forest Service’s determination that Energy Fuels had
valid existing rights to operate the Canyon Mine
notwithstanding the January 2012 withdrawal was a
“major federal action significantly affecting the
environment,” and, therefore, the service violated the
NEPA by not preparing an EIS in connection with its
determination;
2. the Forest Service’s determination was an “undertaking,”
and, therefore, the service violated the NHPA by not
conducting a full consultation under section 106 in
connection with its determination;
3. alternatively, the Forest Service violated the NHPA by
not properly updating its original section 106 analysis to
account for the impact on Red Butte; and
4. the Forest Service violated several federal laws by failing
to take various costs into account in its determination that
Canyon Mine could be operated at a profit.
As relief, the plaintiffs sought a declaration that the Forest
Service was acting in violation of the NEPA, the NHPA and
other laws; an order setting aside any “approvals or
authorizations” for operations at Canyon Mine; and an
injunction prohibiting “any further uranium exploration or
mining-related activities at the Canyon Mine unless and until
the Forest Service fully complies with all applicable laws.”
12 HAVASUPAI TRIBE V. PROVENCIO
The parties cross-moved for summary judgment. In an
order dated April 7, 2015, the district court held (1) that the
plaintiffs had Article III standing, (2) that the plaintiffs lacked
prudential standing with respect to their fourth claim, and
(3) that the Mineral Report—which the district court referred
to as the “VER [Valid Existing Rights] Determination”—was
a final agency action subject to review under the APA. See
Grand Canyon Tr. v. Williams, 98 F. Supp. 3d 1044, 1055–61
(D. Ariz. 2015). Turning to the merits, the district court held
(1) that the Mineral Report was not a “major federal action”
requiring an EIS under the NEPA; (2) that the report was not
an “undertaking” requiring a full section 106 consultation
under the NHPA; (3) that the Forest Service’s decision to
consider the effect on Red Butte under 36 C.F.R.
§ 800.13(b)(3) was reasonable; and (4) that the Forest Service
had complied with that regulation. See id. at 1062–73.1
Both the Tribe and the Trust timely appealed.
II
The Forest Service argues that we lack jurisdiction
because its determination that Energy Fuels has valid existing
rights was not a final agency action. See Ukiah Valley Med.
Ctr. v. FTC, 911 F.2d 261, 266 (9th Cir. 1990) (“‘[F]inal
agency action’ is a jurisdictional requirement imposed by
1
The district court also rejected the defendants’ argument that two of
the plaintiffs’ claims were barred by collateral estoppel. See Grand
Canyon Tr., 98 F. Supp. 3d at 1061–62. That ruling has not been
challenged on appeal.
HAVASUPAI TRIBE V. PROVENCIO 13
[5 U.S.C. § 704].”).2 We review this threshold issue de novo.
See Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236,
247 (3d Cir. 2011).3
“‘[A]gency action’ includes the whole or a part of an
agency rule, order, license, sanction, relief or the equivalent
or denial thereof, or failure to act[.]” 5 U.S.C. § 551(13).
“[R]elief,” in turn, includes the “recognition of a claim, right,
immunity, privilege, exemption, or exception.” Id.§ 551(11)(B).
The Forest Service claims that it has no authority to
recognize mining rights, and that the Mineral Report
represents only the agency’s “opinion” as to their validity.
2
The Supreme Court recently reminded courts that “[o]nly Congress
may determine a lower federal court’s subject-matter jurisdiction.” Hamer
v. Neighborhood Hous. Servs. of Chi., No. 16-658, at 1 (U.S. Nov. 8,
2017) (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)). Since the
final agency action requirement is statutory, Hamer does not call into
question its status as a jurisdictional limitation.
3
In the district court, the Forest Service further argued that the
plaintiffs lacked Article III standing. It has not pursued that argument on
appeal, but we are satisfied that the plaintiffs have suffered injuries in fact
that are fairly traceable to the Service’s actions and that could be redressed
by a favorable judicial determination. See Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992). Continued uranium mining at Canyon Mine
causes concrete injury to the Tribe’s religious and cultural interests and
the Trust’s aesthetic and recreational interests. While the parties dispute
whether continued mining required the Forest Service’s approval, we must
assume that it did in assessing standing. See Equity Lifestyle Props., Inc.
v. Cty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008)
(“The jurisdictional question of standing precedes, and does not require,
analysis of the merits.”). If the Tribe and Trust are correct that continued
mining required approval, then their injuries are fairly traceable to that
approval and could be redressed by setting it aside.
14 HAVASUPAI TRIBE V. PROVENCIO
But whether or not the Mineral Report was legally required,
it was prepared. Its conclusion that Energy Fuels had valid
existing rights at the time of the withdrawal falls within the
plain meaning of “recognition of a claim.”
We further conclude that the Mineral Report was final.
“As a general matter, two conditions must be satisfied for
agency action to be ‘final[.]’” Bennett v. Spear, 520 U.S. 154,
177 (1997). “First, the action must mark the consummation
of the agency’s decisionmaking process—it must not be of a
merely tentative or interlocutory nature.” Id. at 177–78
(citation and internal quotation marks omitted). It is true that
the final decision to contest a claim of existing rights rests
with the Department of the Interior’s Bureau of Land
Management (“BLM”). See Best v. Humboldt Placer Mining
Co., 371 U.S. 334, 336 (1963). If, however, the Forest
Service finds a claim is valid, nothing else happens. The
district court sensibly described that outcome as “the Forest
Service’s ‘last word’ on the validity of the Canyon Mine
mineral rights,” Grand Canyon Tr. v. Williams, 38 F. Supp.
3d 1073, 1078 (D. Ariz. 2014), and we agree with that
description.
In addition, to be final, “the action must be one by which
rights or obligations have been determined, or from which
legal consequences will flow.” Bennett, 520 U.S. at 178(internal quotation marks omitted). Rights to a mineral
deposit on public land are not conferred by agency action;
they are acquired by the miner’s own actions of location and
discovery. See American Law of Mining § 4.11 (2d ed. 1997)
(“[The prospector] may seek ‘valuable minerals’ and, if he
finds them, may initiate a vested right without the approval of
anyone else, including representatives of the government that
owns the land.”). Nevertheless, the Mineral Report
HAVASUPAI TRIBE V. PROVENCIO 15
determined that such rights existed with respect to Canyon
Mine, and that is all Bennett requires.
We have observed that “courts consider whether the
practical effects of an agency’s decision make it a final
agency action, regardless of how it is labeled.” Columbia
Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084, 1094–95
(9th Cir. 2014). We therefore focus on both the “practical
and legal effects of the agency action,” and define the finality
requirement “in a pragmatic and flexible manner.” Or. Nat.
Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir.
2006) (citations omitted). We agree with the district court’s
assessment that the Mineral Report was a practical
requirement to the continued operation of Canyon Mine
because “the Forest Service, Energy Fuels, and interested
tribes all understood that mine operations would not resume
until the VER Determination was completed.” Grand
Canyon Tr., 38 F. Supp. 3d at 1079.
III
The challenges to the merits of the district court’s
judgment raise three issues: (A) Was the Mineral Report a
“major federal action” under the NEPA? (B) Did the Mineral
Report approve an “undertaking” under the NHPA? (C) Did
the Trust fall within the zone of interests of either the Federal
Land Policy and Management Act of 1976 (“FLPMA”) or the
General Mining Act of 1872 (“Mining Act”)? Our review of
each question is de novo. See N. Cheyenne Tribe v. Norton,
503 F.3d 836, 845 (9th Cir. 2007) (compliance with NEPA
and NHPA on summary judgment); Mills v. United States,
742 F.3d 400, 406 (9th Cir. 2014) (zone of interests).
16 HAVASUPAI TRIBE V. PROVENCIO
A. NEPA
We have held that “where a proposed federal action
would not change the status quo, an EIS is not necessary.”
Upper Snake River Chapter of Trout Unlimited v. Hodel,
921 F.2d 232, 235 (9th Cir. 1990). Nor is an EIS necessary
to “discuss the environmental effects of mere continued
operation of a facility.” Burbank Anti-Noise Grp. v.
Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980). We applied
those general principles in Center for Biological Diversity v.
Salazar, 706 F.3d 1085 (9th Cir. 2013) (“CBD”).
At issue in CBD was the resumption of mining at a
uranium mine, “after a seventeen-year hiatus, under a plan of
operations that BLM approved in 1988.” 706 F. 3d at 1088.
We held that “no regulation requires approval of a new plan
of operations before regular mining activities may
recommence following a temporary closure.” Id. at 1093.
We further held that the original approval of the plan was a
major federal action, but that “that action [wa]s completed
when the plan [wa]s approved.” Id. at 1095 (quoting, with
alterations, Norton v. S. Utah Wilderness All., 542 U.S. 55, 73
(2004)). By contrast, in Pit River Tribe v. United States
Forest Service, 469 F.3d 768 (9th Cir. 2006), we held that a
lease extension was a major federal action that altered the
status quo because without it, the lessee would not have been
able to continue operating a power plant on the leased
property. See id. at 784.
The district court correctly held that CBD, not Pit River,
governs this case. As in CBD, the original approval of the
plan of operations was a major federal action. And as in
CBD, that action was complete when the plan was approved.
Unlike Pit River, resumed operation of Canyon Mine did not
HAVASUPAI TRIBE V. PROVENCIO 17
require any additional government action. Therefore, the EIS
prepared in 1988 satisfied the NEPA.
B. NHPA
As we explained, the NHPA requires consultation
pursuant to section 106 prior to any “undertaking.” 54 U.S.C.
§ 306108. As pertinent here, “‘undertaking’ means a project,
activity, or program funded in whole or in part under the
direct or indirect jurisdiction of a Federal agency, including
. . . those requiring a Federal permit, license, or approval[.]”
Id. § 300320(3). Here, too, we agree with the district court
that the Mineral Report did not “permit, license, or
approv[e]” resumed operations at Canyon Mine; it simply
acknowledged the continued vitality of the original approval
of the PoO. Just as that approval was the only “major federal
action” requiring an EIS under the NEPA, it was the only
“undertaking” requiring consultation under the NHPA.
The Tribe concedes that the approval process in 1986
included the necessary consultation, and that the cultural and
religious impacts on Red Butte were not included because
they were not required to be at that time. It argues, however,
that the NHPA imposes a continuing obligation on federal
agencies to address the impact on historic property at any
stage of an undertaking.
The statutory definition of “undertaking” dates from
1992. Prior to that, it was defined by the Advisory Council
on Historic Preservation (“ACHP”), the agency charged with
implementing the NHPA, to include “continuing projects,
activities, or programs and any of their elements not
previously considered under section 106.” 36 C.F.R.
§ 800.2(o) (1991). But that definition was superseded by
18 HAVASUPAI TRIBE V. PROVENCIO
54 U.S.C. § 300320(3), which omits the reference to
continuing projects. The regulatory definition now conforms
to the statutory definition. See 36 C.F.R. § 800.16(y). We
therefore disagree with the Tribe that the current definition of
“undertaking” encompasses a continuing obligation to
evaluate previously approved projects.
Although continuing obligations have been removed from
the definition of “undertaking,” they remain in 36 C.F.R.
§ 800.13(b):
If historic properties are discovered or
unanticipated effects on historic properties
found after the agency official has completed
the section 106 process . . . , the agency
official shall make reasonable efforts to avoid,
minimize or mitigate adverse effects to such
properties and:
(1) If the agency official has not approved the
undertaking or if construction on an approved
undertaking has not commenced, consult to
resolve adverse effects pursuant to § 800.6; or
...
(3) If the agency official has approved the
undertaking and construction has commenced,
determine actions that the agency official can
take to resolve adverse effects, and notify the
[state or tribal historical office], any Indian
tribe . . . that might attach religious and
cultural significance to the affected property,
and the [Advisory Council on Historic
Preservation] within 48 hours of the
HAVASUPAI TRIBE V. PROVENCIO 19
discovery. The notification shall describe the
agency official’s assessment of National
Register eligibility of the property and
proposed actions to resolve the adverse
effects. The . . . Indian tribe . . . and the
Council shall respond within 48 hours of the
notification. The agency official shall take
into account their recommendations regarding
National Register eligibility and proposed
actions, and then carry out appropriate
actions. The agency official shall provide the
. . . Indian tribe . . . and the Council a report of
the actions when they are completed.
As noted, the Forest Service concluded that this regulation
applied to Canyon Mine. It further concluded that subsection
(3) applied because construction had begun in the early
1990s, although it acknowledged that the 20-year hiatus
presented a “somewhat unusual situation.”
The Tribe objects that Red Butte was not a newly
discovered historic property—and that the effect of operating
a uranium mine near it was not unanticipated—because it had
informed the Forest Service of the religious and cultural
significance of this site decades earlier. While that is true, the
Tribe does not dispute that Red Butte was not a “historic
property” eligible for inclusion on the National Register until
2010. As a result, the NHPA did not obligate the Forest
Service to take the site into account when it conducted a full
section 106 consultation in 1986. And while we agree that
eligibility for inclusion on the National Register is not exactly
a “discovery,” there is no other regulation requiring an
agency to consider the impact on newly eligible sites after an
undertaking is approved. In other words, by invoking
20 HAVASUPAI TRIBE V. PROVENCIO
§ 800.13(b), the Forest Service may have given the Tribe
more than it was entitled to demand.
The Tribe further argues that if § 800.13(b) applies, the
Forest Service should have proceeded under § 800.13(b)(1),
instead of § 800.13(b)(3). In sum, the agency must engage in
a full section 106 consultation if it “has not [yet] approved the
undertaking or if construction on an approved undertaking
has not [yet] commenced.” 36 C.F.R. § 800.13(b)(1). If,
however, the agency “has approved the undertaking and
construction has commenced,” it can engage in a simplified
process to “determine actions that the agency official can take
to resolve adverse effects.” Id. § 800.13(b)(3).
Canyon Mine fits squarely within the scope of subsection
(3). The mine was approved in 1988, and construction of the
surface facilities began shortly thereafter. The Tribe argues
that subsection (3) was intended to address emergency
situations, but there is no express limitation to such
situations.4
4
In a letter to the Forest Service, the ACHP opined that subsection (3)
applies “where construction activities have begun and would be ongoing,
and thus, the agency had limited time and opportunity for consultation.”
Normally, an agency’s interpretation of its own ambiguous regulation is
“controlling unless plainly erroneous or inconsistent with the regulation.”
Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation marks
omitted). Subsection (3) is not ambiguous. Moreover, the letter was
motivated by a concern that proceeding under subsection (3) “would
continue the unproductive conflict between the Forest Service and the
Indian tribes that consider Red Butte a sacred place.” We agree with the
district court that the letter “appears to be more tactical advice than an
interpretation of the regulation.” Grand Canyon Tr., 98 F. Supp. 3d at
1070.
HAVASUPAI TRIBE V. PROVENCIO 21
Finally, the Tribe briefly argues that the Forest Service
did not comply with § 800.13(b)(3). Having reviewed the
record, we conclude that the Forest Service made a good-faith
effort to ascertain steps it could take to resolve the possible
adverse effects of mining on Red Butte. If that effort was not
successful, it is because the Tribe insisted on a full
consultation under section 106, which was not legally
required, and a complete ban on mining around Red Butte,
which the Forest Service lacks the authority to impose.
C. FLPMA and Mining Act
The plaintiffs’ fourth claim, advanced by the Trust,
challenged the merits of the Forest Service’s conclusion that
Energy Fuels had valid existing rights predating the
withdrawal because its predecessors-in-interest had
discovered a deposit of uranium ore that could be “mined,
removed, transported, milled and marketed at a profit.” The
district court did not address this claim, instead holding that
the Trust lacked prudential standing to make it. See Grand
Canyon Tr., 98 F. Supp. 3d at 1058–60.
“[A] person suing under the APA must satisfy not only
Article III’s standing requirements, but an additional test: The
interest he asserts must be arguably within the zone of
interests to be protected or regulated by the statute that he
says was violated.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v . Patchak, 567 U.S. 209, 224 (2012)
(internal quotation marks omitted).5 We agree with the
5
As the district court’s language reflects, the additional test was, until
recently, described as a matter of “prudential standing.” See Match-E-Be-
Nash-She-Wish, 567 U.S. at 224–28. But in Lexmark International, Inc.
v. Static Control Components, Inc., 572 U.S. 118 (2014), the Supreme
22 HAVASUPAI TRIBE V. PROVENCIO
district court that the Trust’s fourth claim falls outside the
Mining Act’s zone of interests. See Grand Canyon Tr., 98 F.
Supp. 3d at 1059 (explaining that the Mining Act’s obvious
intent was “to reward and encourage the discovery of
minerals that are valuable in an economic sense,” and that the
Trust’s interests are environmental and historical, but not
economic).
However, the Trust also argued that the Forest Service’s
VER determination violated the FLPMA. The district court
did not address the FLPMA’s zone of interests in its analysis,
concluding that “the sections of the [FLPMA] to which
Plaintiffs cite do not relate to validity determinations or
mineral examinations . . . . and do not provide the Court with
any relevant law to apply in deciding claim four.” Id. at 1059
n.8. It is true, of course, that the plaintiff must fall within the
zone of interests of the “statutory provision whose violation
forms the legal basis of his complaint.” Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 883 (1990). However, we
conclude that the FLPMA, and not the Mining Act, forms the
legal basis of the Trust’s fourth claim.
We described the FLPMA at length in National Mining
Association. See 877 F.3d at 845. Relevant here, the FLPMA
Court called that description “misleading,” id. at 125, and “in some
tension with . . . the principle that a federal court’s obligation to hear and
decide cases within its jurisdiction is virtually unflagging,” id. at 126
(internal quotation marks and citations omitted). It held that the zone-of-
interests inquiry instead asks “whether a legislatively conferred cause of
action encompasses a particular plaintiff’s claim,” id. at 127, or, in the
APA context, whether a plaintiff’s interests “are so marginally related to
or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress authorized that plaintiff to sue,” id.
at 130 (internal quotation marks and citations omitted).
HAVASUPAI TRIBE V. PROVENCIO 23
confers on the Secretary authority to withdraw federal lands
for specified purposes, 43 U.S.C. § 1701(a)(4), but makes that
authority “subject to valid existing rights.” Pub. L. 94-579,
§ 701(h), 90 Stat. 2743, 2786 (1976). Thus, the VER
determination that the Trust challenges in this case was made
to decide whether Canyon Mine would be subject to a
withdrawal made pursuant to the FLPMA.
Here, the Forest Service looked to the Mining Act to
make its VER determination. However, that does not
conclusively establish that the Mining Act, and not the
FLPMA, forms the “legal basis” of the Trust’s fourth claim.
Had Energy Fuels claimed rights of a different nature, the
Forest Service would have consulted a different statutory
scheme, but it still would have made a VER determination.
Regardless of the statute consulted, a VER determination
affects whether activities on federal land can be limited under
the FLPMA. See 43 U.S.C. § 1703(j) (stating that the
purpose of a withdrawal is to “limit[] activities . . . in order to
maintain other public values”). That question implicates the
Trust’s asserted environmental concerns.
In sum, the Forest Service applied the relevant standards
from the Mining Act to make its VER determination, but the
Trust’s claim that Canyon Mine should not be exempt from
the withdrawal because the VER determination was in error
remains a claim under the FLPMA. And since the Trust’s
claim seeks to vindicate some of the same concerns that
underlie the Secretary’s withdrawal authority, it falls within
the statute’s zone of interests. See W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 485–86 (9th Cir. 2011)
(plaintiffs’ environmental interests fell within the NEPA and
the FLPMA’s zone of interests); Desert Citizens Against
Pollution v. Bisson, 231 F.3d 1172, 1179 (9th Cir. 2000)
24 HAVASUPAI TRIBE V. PROVENCIO
(plaintiffs’ aesthetic and recreational interests fell within the
FLPMA’s zone of interests).
IV
With respect to the claims under the NEPA and NHPA,
the judgment of the district court is AFFIRMED. With
respect to the claim under the FLPMA, the judgment is
VACATED and the case is REMANDED for consideration
of the claim on the merits.