National Mining Ass'n v. Zinke, No. 14-17350 (9th Cir. 2017)
Annotate this CaseThe unconstitutional legislative veto embedded in section 204(c)(1) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1714, is severable from the large-tract withdrawal authority delegated to the Secretary in that same subsection. Invalidating the legislative veto provision does not affect the Secretary's withdrawal authority. The Ninth Circuit affirmed the district court's decision rejecting challenges to the decision of the Secretary to withdraw from new uranium mining claims, up to twenty years, over one million acres of land near Grand Canyon National Park. In this case, the panel held that the environmental impact statement (EIS) did take existing legal regimes into account but reasonably concluded that they were inadequate to meet the purposes of the withdrawal; the Establishment Clause challenge failed under Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); and the panel rejected challenges under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the National Forest Management Act, 16 U.S.C. 1604(e).
Court Description: Mining Claims. The panel affirmed the district court’s decision rejecting challenges to the decision of the Secretary of the Interior to withdraw from new uranium mining claims, up to twenty years, over one million acres of land near Grand Canyon National Park. The Federal Land Policy and Management Act of 1976 (“FLPMA”) reserves to Congress the power to take certain land management actions, such as making or revoking 6 NAT’L MINING ASS’N V. ZINKE permanent withdrawals of large tracts from mineral extraction, 43 U.S.C. § 1714(c), (j). Congress has never exercised its authority under FLPMA to veto a large-tract withdrawal. FLMPA also delegates to the Secretary the power to make temporary or permanent withdrawals of small tracts, and temporary withdrawals of large-tract parcels. The district court held that the legislative veto provision of FLPMA was unconstitutional, but severable; and this left the Secretary’s challenged withdrawal authority intact. The panel held that the appellants, which were mining companies and local governments, had standing to raise the severability issue. The panel further held that the unconstitutional legislative veto embedded in section 240(c)(1) of FLPMA was severable from the large- tract withdrawal authority delegated to the Secretary in that same subsection. The panel held that invalidating the legislative veto provision did not affect the Secretary’s withdrawal authority. Turning to the merits of the FLPMA claims, the panel rejected appellants’ challenges to each of the Secretary’s rationales for the land withdrawal. First, the panel held that the Secretary’s decision to withdraw the large tract of land to protect water resources in the Grand Canyon watershed and the Colorado River from possible water contamination was not arbitrary, capricious, or not in accordance with the law. Second, the panel held that FLPMA and case law did not prevent the Secretary from withdrawing large tracts of land in the interest of preserving cultural and tribal resources. Third, the panel held that the record supported the conclusion that there would be a significant impact on visual resources and a risk of significant harm to wildlife absent the NAT’L MINING ASS’N V. ZINKE 7 withdrawal. Finally, the panel held that the agency’s findings regarding the quantity of uranium in the withdrawn area were not arbitrary or capricious, as the agency relied on peer- reviewed data and reasonably explained why it did not adopt appellants’ alternative version. The panel held that the Secretary did not act arbitrarily or capriciously in setting the boundaries of the withdrawn area. The panel also held that the Secretary did not contravene the principle that land management under FLPMA “be on the basis of multiple use and sustained yield.” 43 U.S.C § 1701(a)(7). The panel held that consonant with the multi- use principle, the Secretary engaged in a careful and reasoned balancing of the potential economic benefits of additional mining against the possible risks of environmental and cultural resources. Finally, the panel held that the final environmental impact statement took existing legal regimes into account but reasonably concluded that they were inadequate to meet the purposes of the withdrawal. Appellant Gregory Youndt alleged that precluding new mining claims on federal land out of concern that the area had sacred meaning to Indian tribes violated the Establishment Clause of the First Amendment. The panel held that this Establishment Clause challenge failed under the test in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). The panel also rejected appellants’ allegations that the withdrawal violated the National Environmental Policy Act (“NEPA”). First, the panel deferred to the agency’s judgment about the proper level of analysis. Namely, the Record of Decision properly concluded that any missing information was non-essential, and the final environmental impact statement identified that missing information, discussed its 8 NAT’L MINING ASS’N V. ZINKE relevance, weighed the available scientific evidence, and presented its conclusions regarding potential environmental impact based on the available data. Second, the panel held that the Secretary complied with the requirements in FLPMA and NEPA regarding consultation with local government. Specifically, the panel held that the record demonstrated that the Secretary fully acknowledged and considered the local Counties’ concerns regarding the withdrawal; and the final environmental impact statement and Record of Decision did consider approved county plans and found no inconsistencies or conflicts in compliance with 40 C.F.R. § 1506.2(d). Part of the withdrawn area included land managed by the United States Forest Service, and the Forest Service provided its requisite consent to include the land in the withdrawal area. The panel rejected appellants’ contention that the Forest Service’s consent to the withdrawal was arbitrary, capricious, or otherwise not in accordance with law because it did not comply with the National Forest Management Act’s multiple use mandate, 16 U.S.C. § 1604(e), or the terms and conditions of the Kaibab National Forest Plan established under the Act. NAT’L MINING ASS’N V. ZINKE 9
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