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Ninth Circuit Addresses How the National Historic Preservation Act Applies to Delayed Mining Project

InHavasupai Tribe v. Provencio, the Havasupai Tribe, along with several environmental groups (plaintiffs), challenged a mining operation (Mining Project) near the Grand Canyon, claiming the federal government failed to properly review the Mining Project pursuant to the National Historic Preservation Act (NHPA). The Mining Project was initiated in 1984 and, after a long delay, restarted in 2011. As explained below, plaintiffs made several arguments, all of which related to the contention that the steps to comply with NHPA when the Mining Project first started should not apply with the same force in 2011. The Ninth Circuit Court of Appeals upheld the lower court’s finding that the Mining Project could proceed as compliant with NHPA. On May 20, 2019, the U.S. Supreme Court declined to address plaintiff’s petition. Thus, the Ninth Circuit’s decision can be used to provide guidance as to how the NHPA should be applied to mining projects, and perhaps other projects, that span several years and, therefore, exist throughout changes to the NHPA. [Havasupai Tribe v. Provencio, 906 F.3d 1155 (9th Cir. 2019).]


The NHPA generally requires an environmental review by the federal government on any “undertaking,” defined as”

“. . .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[.]” 54 U.S.C § 300320(3).

This NHPA review requirement applies to mining operations by requiring the U.S. Forest Service (USFS) to complete an Environmental Impact Statement (EIS) to address potential environmental impacts and specifically consider input from federally recognized Indian tribes. However, the NHPA creates a vast web of requirements and associated legal requirements that have changed significantly throughout the years. Further, mining operations often go through various stops and starts and therefore, such projects could begin under one set of requirements and then continue several years after, when new laws may apply. A summary of the project at issue, conducted by Energy Fuels Nuclear, Inc. and its successor entities (Developer), helps illustrate this situation.

History of the Developer’s Project

In October 1984, the Developer submitted a proposed plan to operate a canyon mine in Northern Arizona (Mining Project) to mine uranium to the benefit of the USFS. In accordance with the applicable requirements of the NHPA at the time, the USFS completed an EIS regarding the Project, which considered input from federally recognized Indian Tribes. Based on this analysis, the USFS approved the Project in 1986. Thus, the Developer began construction of the mine in 1991 but stopped in 1992 due to drops in uranium pricing. The Project remained on “standby status” until August 2011, when the Developer informed the USFS that it planned to resume construction of the mine based on USFS’ 1986 approval.

In response to the Developer’s notification, USFS conducted three actions to ensure compliance with the NHPA: 1) a “Valid Existing Rights Determination” (VER Determination) which concluded that the Developer had a valid existing mineral right at the property based on the Developer’s 1986 actions, 2) a “Mine Review” which determined that operations of the Mine could resume pursuant to the original approval, and 3) a “Reduced Historical Review” pursuant to the National Historic Preservation Act to determine the effect of the Project on Traditional Cultural Property (TCP), as determined by the National Register of Historic Places. Based on these actions, the USFS determined that the Project could commence as requested by the Developer. In response, plaintiffs filed court action, claiming USFS’ review did not comply with the various NHPA requirements. Thus, the courts reviewed each legal requirement along with the USFS’ analysis to determine if the Developer could proceed with the Project.

The Ninth Circuit’s Decision

The VER Determination

Plaintiff’s challenged the VER Determination on two points. First, plaintiffs claimed the VER Determination failed to consider all relevant cost facts and therefore violated the requirements of the NHPA. In response, USFS claimed that the plaintiff’s lacked standing because the VER Determination is tied to the Mining Law of 1972, which sets forth the process by which miners establish valid rights to mineral deposits. 30 USC 30 U.S.C. §§ 2254. The court agreed with USPS, cited to case law finding that the Mining Law is designed to address competing interests in the mining of uranium. While other statues specifically address environmental and historical concerns, the Mining Law does not and therefore, cannot be used to make an environmental challenge by an entity that does not have a claim to the mine, as plaintiffs attempted to do. Nevada Land Action Ass’n v. U.S. Forest Service, 8 F.3d 713, 716 (9th Cir.1993).

In addition to challenging the sufficiency of the VER Determination, plaintiffs also claimed that its completion constituted a “major federal action” and therefore, required USFS to complete a new EIS for the Project. The court also rejected this argument, following case law suggesting that an EIS is not required when the federal action does not change the “status quo.” San Luis & Delta–Mendota Water Auth. v. Jewell, 747 F.3d 581, 646 (9th Cir.2014). Since the VER Determination did not change the Mining Project as originally approved, it did not require a new EIS.

The Reduced Historical Review

Section 106 of the NHPA requires federal agencies that issue federal licenses for an “undertaking” to evaluate the potential effects on TCPs and consult with Indian tribes that attach religious or cultural significance to areas that may be affected by the undertaking. 36 C.F.R. §§ 800.2–800.7. However, § 106 establishes multiple review processes, including what is known as a “Full Section 106 Review” and a “Reduced Section 106 Review.” Because the USFS completed a Full Section 106 Review when the Project was initially assessed in 1986, the USFS concluded that a Reduced Section 106 Review was sufficient. In sum, this process included sending letters to tribe leaders in the area and offers to discuss the Project during a two-day consultation meeting.

Plaintiffs claimed that the Project required a new Full Section 106 Review because the Developer’s plan to resume operations of a mine constituted a “undertaking” pursuant to the NHPA. The court rejected this claim, finding that the resumption of the mine was not an undertaking because it did not change the plan originally approved by USFS, which was subjected to a Full Section 106 Review. Thus, the court update the USFS’s decision to proceed with a Reduced Section 106 Review.

Plaintiffs also argued that, even if a Reduced Section 106 Review was allowed for the Project, the review conducted by the USFS did not meet the specific requirements of the NHPA. The court first noted that USFS’ decision to proceed with the Reduced Section 106 Review is entitled to deference and therefore, can only be overturned if it is deemed an arbitrary or capricious decision. The court then reviewed the USFS actions with respect to the Reduced Section 106 Review and found that it complied by the NHPA because USFS: 1) provided immediate notice of its decision, 2) initiated consultation with tribes and environmental groups, and 3) planned and attended meetings to discuss cultural and environmental impacts over several months.

Conclusion and Implications

Based on the foregoing analysis, the Ninth Circuit Court of Appeals found that USFS’ process with respect to the Mining Project complied with the NHPA and the Supreme Court, without an explanation, refrained from taking up plaintiff’s appeal. Although the NHPA creates a number of requirements whose application will likely depend on the specifics of the project at issue, the court’s decision can provide some guidance for similar projects. Specifically, the approval process used for projects at the time of initiation may be used if the project is delated or otherwise extends over a long period of time. Unless the project at issue changes, USFS is authorized to rely heavily on the approvals provided in the past. However, it is important to note that USFS did take many additional steps to review the Mining Project once it was renewed in 2011. Thus, this case does not suggest that a delayed project can rely solely on prior approvals. Developers, as well as potential challengers to developments, can use the court’s analysis to determine how NHPA may be applied to delayed projects.

(Stephen M. McLoughlin, David D. Boyer)