By: Rachel Richman

On October 25, 2018, the Ninth Circuit affirmed in part and reversed in part a decision regarding Havasupai tribe’s claims against the United States Forest Service for their actions relating to a proposed uranium mine near the Grand Canyon, called Canyon Mine. The Court held that Havasupai tribe, and three environmental groups, “claim that Forest Service improperly determined that company had valid existing rights to mine uranium ore on public lands fell within zone of interests protected by Federal Land Policy and Management Act (FLPMA),” and vacated the lower court ruling on this issue and remanded it to the District Court. [1]

This conflict began in 1988 when Energy Fuel Resources, a uranium mining company, first reached out the United States Forest Service (“USFS”) to develop a uranium mine in Red Butte, which is located near the Grand Canyon and on Havasupai ancestral land. [2]At that time the USFS conducted an Environmental Impact Statement (“EIS”) as is required under the National Environmental Policy Act, and conducted a review on “the effect of the undertaking on historic property” as required by the National Historic Preservation Act. [3]Subsequently, the USFS approved the plans to develop. [4]Energy Fuel Resources began building the mine, but then halted construction in 1992 because of unfavorable conditions in the uranium market. [5]

Then in 2012 the Secretary of Interior, Ken Salazar, removed 1 million acres of public lands around the Grand Canyon from new mining claims for 20 years.[6]The court upheld this moratorium on new claims in the case National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017). [7]However, this moratorium did not extinguish “valid existing rights.”[8]  Energy Fuel Resources contacted the USFS to claim “valid existing rights.” USFS determined there was valuable uranium on the site that could be mined to make a profit, and therefore found that Energy Fuel Resources had a valid existing right.[9]Further, USFS found they were not required to update the EIS or conduct any further assessment under NHPA. [10]The Ninth Circuit in the recent case held that the plaintiffs had standing under the Federal Land Policy Management Act to challenge the USFS conclusion that Energy Fuel Resources had “valid existing rights.” The court said that a “[valid existing right] determination affects whether federal actions can be limited under FLPMA.”[11]

This holding represents a small victory for the Havasupai tribe. The tribe is opposed to the development of the uranium mine because they are concerned it will contaminate the groundwater and enter Havasu Creek, which is their sole water source.[12]Rex Tilousi, a former tribal chairman said “if you allow this to happen you will see sickness and deformities among our people in the future. We’ve seen the evidence.”[13]There is an “appalling legacy” or uranium development on Navajo Nation land, which has caused a disproportionate number of Navajo people to die prematurely from kidney failure and cancer related to uranium exposure.[14]The Havasupai are distrustful of the federal government, and do not want this mine to be developed. The tribe is also opposed the mine because it is on sacred land. [15]The Havasupai people believe the Red Butte is
“their spiritual umbilical cord connecting them to nature and the source of life.” [16]  However, there is hope for the Havasupai tribe because the Ninth Circuit found they have standing to challenge the USFS’s actions; It will be up to the United States District Court for the District of Arizona to determine the merits of the Federal Land Policy and Management Act claims.

 

[1]Havasupai Tribe v. Provencio, — F.3d —- (2018)

[2]https://www.grandcanyonnews.com/news/2018/oct/30/appeals-court-gives-tribe-environmentalists-new-ch/

[3]See supra 1 at 5.

[4]Id.

[5]Id.

[6]See supra 2.

[7] See supra 1 at 4.

[8]Id.

[9]Id.

[10]Id.

[11]Id.at 10. See also 43 U.S.C. § 1703(j)

 

[12]https://www.theguardian.com/environment/2017/jul/17/grand-canyon-uranium-mining-havasupai-tribe-water-source

[13]Id.

[14]Id.see also https://www.epa.gov/navajo-nation-uranium-cleanup/cleaning-abandoned-uranium-mines

[15]Id.

[16]Id.

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