IGNACIA S. MORENO Assistant Attorney General ...FOR PRELIM. INJ. IGNACIA S. MORENO Assistant...

FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ.

IGNACIA S. MORENO Assistant Attorney General U.S. Department of Justice Environment and Natural Resources Division BEVERLY F. LI (WSBA # 33267) Trial Attorney, Natural Resources Section U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044-7611 Telephone: (202) 353-9213 Fax: (202) 305-0506 Email: [email protected] Attorney for Federal Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

PRESCOTT DIVISION GRAND CANYON TRUST, et al., Plaintiffs, v. MICHAEL WILLIAMS, Forest Supervisor, Kaibab National Forest et al., Defendants, and Energy Fuels Resources (USA), INC., et al., Defendants-Intervenors.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 3:13-cv-08045-DGC FEDERAL DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 3:13-cv-08045-DGC Document 53 Filed 05/10/13 of 37

FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. i

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1 STATUTORY BACKGROUND.....................................................................................................2 A. National Environmental Policy Act .............................................................2 B. National Historic Preservation Act ..............................................................3 C. Mining Law of 1872 ....................................................................................3 D. Forest Service Regulation of Surface Resources .........................................5 FACTUAL BACKGROUND ..........................................................................................................5 A. 1986 EIS and ROD Approving Plan of Operations .....................................5 B. Implementation of the Plan Prior to Standby Status ....................................7 C. The Secretary of the Interior’s Land Withdrawal Decision and the Forest Service’s VER Determination .....................................................7 D. The Forest Service’s 2012 Review of 1986 EIS and ROD ..........................8 E. Consultation Under the NHPA ....................................................................8 STANDARD OF REVIEW ...........................................................................................................10 A. Standard for obtaining Preliminary Injunctive Relief ................................10 B. The Administrative Procedure Act ............................................................11 ARGUMENT .................................................................................................................................11 I. RES JUDICATA BARS PLAINTIFFS’ NHPA CLAIMS ....................................11 II. PLAINTIFFS’ CLAIMS ARE TIME-BARRED...................................................12 III. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR NEPA CLAIM REGARDING THE VER DETERMINATION ..............................................................................................13 IV. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS OF THEIR NHPA CLAIMS ..................................................................................19


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. ii

A. The Forest Service Fully Complied with Section 106’s Requirements and Properly Followed the Procedures at 36 C.F.R. §800.13(b)(3) .............................................................................19 B. The VER Determination Is Not an Undertaking Under the NHPA .........................................................................................................21 V. PLAINTIFFS HAVE NOT DEMONSTRATED ANY IRREPARABLE INJURY OR THAT THE BALANCE OF HARMS TIPS IN THEIR FAVOR .......................................................................................22 A. Procedural Violations Alone Do Not Constitute Irreparable Harm ..........................................................................................................23 B. Plaintiffs Cannot Show Immediate, Irreparable Harm ..............................23 CONCLUSION ..............................................................................................................................25


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. iii

TABLE OF AUTHORITIES

CASES Allen v. McCurry,

449 U.S. 90 (1980) .............................................................................................................11 Alliance for Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011) ...........................................................................................11 Amoco Prod. Co. v. Vill. of Gambell,

480 U.S. 531 (1987) ...........................................................................................................23 Attakai v. United States,

746 F. Supp. 1395 (D. Ariz. 1990) ......................................................................................3 Auer v. Robbins,

519 U.S. 452 (1997) ...........................................................................................................21 Bennett v. Spear,

520 U.S. 154 (1997) ...........................................................................................................14 Cameron v. United States,

252 U.S. 450 (1920) .......................................................................................................3, 14 Center for Biological Diversity v. Salazar,

706 F.3d 1085 (9th Cir. 2013) .......................................................................1, 8, 16, 18, 19 Chrisman v. Miller,

197 U.S. 313 (1905) .............................................................................................................3 Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156 (2012) .......................................................................................................21 Coal. for Underground Expansion v. Mineta,

333 F.3d 193 (D.C. Cir. 2003) ...........................................................................................22 Cold Mountain v. Garber,

375 F.3d 884 (9th Cir. 2004) .............................................................................................16 Ctr. for Food Safety v. Vilsack,

636 F.3d 1166 (9th Cir. 2011) ...........................................................................................23 Defenders of Wildlife v. Andrus,

627 F.2d 1238 (D.C. Cir. 1980) .........................................................................................17


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. iv

Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) .............................................................................................23

Freese v United States, 6 Cl. Ct. 1 (Cl. Ct. 1984), aff’d, 770 F.2d 177 (Fed. Cir. 1985) ..........................................5 Greater Yellowstone Coal. v. Tidwell,

572 F.3d 1115 (10th Cir. 2009) .........................................................................................16 Havasupai Tribe v. Robertson,

943 F.2d 32 (9th Cir. 1991) .....................................................................................7, 16, 24 Havasupai Tribe v. United States,

752 F. Supp. 1471 (D. Ariz. 1990) ......................................................................6, 7, 12, 24 Headwaters, Inc. v. BLM,

665 F. Supp. 873 (D. Or. 1987) .........................................................................................23 Karst Envtl. Educ. & Prot., Inc. v. EPA,

403 F. Supp. 2d 74 (D.D.C. 2005), aff'd, 475 F.3d 1291 (D. C. Cir. 2007) ......................22 Kremer v. Chem. Constr. Corp.,

456 U.S. 461 (1982) ...........................................................................................................11 Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) ...................................................................................3, 11, 23 Lydo Enters., Inc. v. City of Las Vegas,

745 F.2d 1211 (9th Cir. 1984) ...........................................................................................23 Marsh v. Or. Natural Res. Council,

490 U.S. 360 (1989) .....................................................................................................11, 19 McKown v. United States,

Case No. 1:09–cv–00810–SKO, 2012 WL 5423863 (E.D. Cal. Nov. 5, 2012) ................14 Mineral Policy Ctr. v. Norton,

292 F. Supp. 2d 30 (D.D.C. 2003) .......................................................................................4 Montana v. United States,

440 U.S. 147 (1979) ...........................................................................................................24 Morris County Trust for Historic Pres. v. Pierce,

714 F.2d 271 (3d Cir. 1983)...............................................................................................20


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. v

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) .......................................................................................................15, 17

ONRC Action v. Bureau of Land Mgmt.,

150 F.3d 1132 (9th Cir. 1998) ...........................................................................................11 Oakland Tribune, Inc. v. Chronicle Publ'g Co.,

762 F.2d 1374 (9th Cir. 1985) ...........................................................................................23 Okinawa Dugong v. Rumsfeld,

No. C 03-4350 MHP, 2005 WL 522106 (N.D. Cal. March 2, 2005) ..........................20, 22 Orantes-Hernandez v. Thornburgh,

919 F.2d 549 (9th Cir. 1990) .............................................................................................23 Pass Minerals, Inc., 151 IBLA 78 (1999)...........................................................................................................14 Pit River Tribe v. U.S. Forest Serv.,

469 F.3d 768 (9th Cir. 2006) .............................................................................................11 Ramsey v. Kantor,

96 F.3d 434 (9th Cir. 1996) ...............................................................................................15 Rein v. Providian Fin. Servs.,

270 F.3d895 (9th Cir. 2001) ..............................................................................................12 Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) .............................................................................................................2 S. Dakota v. Andrus,

614 F.2d 1190 (8th Cir. 1980) .....................................................................................17, 18 Sac & Fox Nation v. Norton,

240 F.3d 1250 (10th Cir. 2001) .........................................................................................17 Save Our Sonoran, Inc. v. Flowers,

381 F.3d 905 (9th Cir. 2004) .............................................................................................25 Sierra Club v. Babbitt,

65 F.3d 1502 (9th Cir. 1995) .............................................................................................17 Sierra Club v. Penfold,

857 F.2d 1307 (9th Cir. 1988) ...........................................................................................13


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. vi

Sierra Forest Legacy v. Sherman, Nos. 2:05–cv00205–MCE–GGH, 2:05–cv–00211–MCE–GGH, 2013 WL 1627894 (E.D. Cal. Apr. 15, 2013) ....................................................................................23

Swanson v. Babbitt,

3 F.3d 1348 (9th Cir. 1993) ...............................................................................................18 Taylor v. Sturgell,

553 U.S. 880 (2008) ...........................................................................................................11 The Wilderness Society v. Robertson, 824 F. Supp. 947 (D. Mont. 1993), aff'd sub nom., The Wilderness Society v.

Dombeck, 168 F.3d 367 (9th Cir. 1999) ............................................................................18 United States v. Coleman,

390 U.S. 599 (1968) .............................................................................................................3 United States v. Curtis-Nevada Mines, Inc.,

611 F.2d 1277 (9th Cir. 1980) .............................................................................................4 United States v. ITT Rayonier, Inc.,

627 F.2d 996 (9th Cir. 1980) .............................................................................................24 Vieux Carre Prop. Owners v. Brown,

948 F.2d 1436 (5th Cir. 1991) ...........................................................................................20 Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council,

435 U.S. 519 (1978) .........................................................................................................2, 3 WATCH v Harris,

603 F.2d 310 (2d Cir. 1979)...............................................................................................20 Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ...........................................................................................................23 Wilbur v. United States ex rel. Krushnic,

280 U.S. 306 (1930) .............................................................................................................4 Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ...................................................................................................10, 11, 22 Yerger v. Robertson,

981 F.2d 460 (9th Cir. 1992) .............................................................................................22


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. vii

Yount v. Salazar, Nos. CV11–8171–PCT DGC, CV12–8038 PCT DGC, CV12–8042 PCT DGC, CV12–8075 PCT DGC, 2013 WL 93372 (D. Ariz. Jan. 8, 2013) .....................................15

STATUTES

5 U.S.C. § 551 ................................................................................................................................11 5 U.S.C. § 706(2)(a) .......................................................................................................................11 16 U.S.C. § 470f ........................................................................................................................3, 22 16 U.S.C. § 470w(7) ........................................................................................................................3 28 U.S.C. § 2401(a) .......................................................................................................................13 30 U.S.C. § 22 ..................................................................................................................................3 30 U.S.C. §§ 22-54 ..........................................................................................................................3 30 U.S.C. § 26 ..................................................................................................................................4 42 U.S.C. §§ 4321-4370 ..................................................................................................................2 42 U.S.C. § 4332(2)(C) ..................................................................................................................15 43 U.S.C. § 1457 ..............................................................................................................................4 Pub. L. No. 102-575, § 4001, 106 Stat. 4600 ..................................................................................9

REGULATIONS 36 C.F.R. § 63.2 ...............................................................................................................................9 36 C.F.R. § 63.3 ...............................................................................................................................9 36 C.F.R. § 228.4 .............................................................................................................................5 36 C.F.R. § 228.4(d) ......................................................................................................................17 36 C.F.R. § 228.7 ...........................................................................................................................14 36 C.F.R. § 800.3(a).........................................................................................................................3 36 C.F.R. §§ 800.4, 800.6 ................................................................................................................3


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. viii

36 C.F.R. § 800.13 .........................................................................................................................19 36 C.F.R. § 800.13(b)(1) ............................................................................................................1, 20 36 C.F.R. § 800.13(b)(3) ......................................................................................... 2, 10, 19, 20, 21 36 C.F.R. § 800.16 .........................................................................................................................22 36 C.F.R. § 800.16(y) ......................................................................................................................3 36 C.F.R. § 800.16(1)(1) ..................................................................................................................9 43 C.F.R. § 3809.100 .................................................................................................................4, 15 65 Fed. Reg. 77698, 77738 (Dec. 12, 2000) ....................................................................................9 74 Fed. Reg. 35887-01 (July 21, 2009) ...........................................................................................7 77 Fed. Reg. 2317-01 (Jan. 17, 2012) ..............................................................................................7


FED. DEFS.’ OPP’N TO PLS.’ MOT. FOR PRELIM. INJ. 1

INTRODUCTION

Plaintiffs move for a preliminary injunction (ECF Nos. 36, 39) to prevent the

Forest Service from allowing mining activities at the Canyon Mine on the Kaibab

National Forest in Arizona and to “suspend[] all Forest Service approvals relating to the

Mine.” Pls. Mot. at 2 (ECF No. 36). Plaintiffs argue they are likely to succeed on the

merits of three of their eight claims. They claim the Forest Service failed to comply with

the National Environmental Policy Act (“NEPA”) and the National Historic Preservation

Act (“NHPA”) when it determined in 2012 that the mining claims underlying the Canyon

Mine constituted valid existing rights (the “VER Determination”). Plaintiffs also claim

the Forest Service violated the NHPA because it did not follow the procedures in 36

C.F.R. § 800.13(b)(1) when conducting consultation regarding Red Butte Traditional and

Cultural Property (“TCP”).

The Court should deny Plaintiffs’ Motion. Plaintiffs are not likely to prevail on

the merits of any of their claims, especially in light of the Ninth Circuit’s recent merits

decision in Center for Biological Diversity v. Salazar (“CBD”), 706 F.3d 1085 (9th Cir.

2013), which rejected the plaintiffs’ challenges to the Arizona 1 Mine located on Bureau

of Land Management (“BLM”) lands and involved facts that are closely analogous to the

instant case. Plaintiffs cast their claims as challenging the Forest Service’s 2012 VER

Determination and review of the Canyon Mine, but the authorization of Canyon Mine

occurred in 1986. At that time, the Forest Service prepared an Environmental Impact

Statement (“EIS”) and Record of Decision (“ROD”) that approved the Plan of Operations

(“Plan”), and conducted consultation under the NHPA. This Court and the Ninth Circuit



upheld the EIS and ROD against challenges brought by Plaintiff the Havasupai Tribe and

others. Before mining activities were placed on standby status in 1992, in accordance

with the approved Plan, all the surface structures at Canyon Mine had been built and the

mine shaft had been dug to a depth of 50 feet. The Plan has remained valid and in effect.

When the mine operator informed the Forest Service that it intended to resume

operations, the Forest Service in 2012 reviewed the Plan, 1986 EIS and ROD. The Forest

Service reasonably concluded that no further agency decision-making or NEPA analysis

was required. Also, the Forest Service appropriately applied the NHPA consultation

procedures at 36 C.F.R. § 800.13(b)(3) with respect to Red Butte because construction

had commenced. The 2012 VER Determination did not make any decision or authorize

any activities; it was neither a final agency action, a major federal action that triggered

NEPA review, nor an undertaking that required NHPA consultation.

Because Plaintiffs’ claims are without merit, and they have not demonstrated that

any immediate, irreparable injury will occur, or that the balance of harms tips in their

favor, the Court should deny Plaintiffs’ Motion for Preliminary Injunction.

STATUTORY BACKGROUND

A. National Environmental Policy Act

To ensure informed decision-making, NEPA requires federal agencies to analyze

and disclose significant environmental effects of major federal actions in an EIS, but it

does not require any particular decision. See 42 U.S.C. §§ 4321-4370; Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Vt. Yankee Nuclear Power



Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978); see Lands Council v.

McNair, 537 F.3d 981, 1000 (9th Cir. 2008) (en banc).

B. National Historic Preservation Act

Section 106 of the NHPA requires a federal agency having jurisdiction over a

proposed undertaking, prior to the issuance of a federal license, to take into account the

effect of the undertaking on a site eligible for listing in the National Register. 16 U.S.C.

§ 470f.1 The federal agency official must determine whether a proposed federal action is

an “undertaking,” and if so, whether it is a type of activity that has the potential to cause

effects on historic properties. 36 C.F.R. § 800.3(a). The consultation process consists of

identification of historic properties that may be affected, an assessment of the property’s

historical significance, a determination of whether there will be an adverse effect on the

property, and consideration of ways to reduce or avoid any adverse effect on such historic

property. 36 C.F.R. §§ 800.4, 800.6; Attakai v. United States, 746 F. Supp. 1395, 1404

(D. Ariz. 1990).

C. Mining Law of 1872

The Mining Law, 30 U.S.C. §§ 22-54, made public lands available “for the

purpose of mining valuable mineral deposits.” United States v. Coleman, 390 U.S. 599,

602 (1968); see 30 U.S.C. § 22; Cameron v. United States, 252 U.S. 450, 460 (1920). It

authorizes citizens to “locate” valid mining claims upon “discovery” of valuable mineral

deposits and compliance with applicable legal requirements. Chrisman v. Miller, 197

1 An “undertaking” is 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. . . .” 16 U.S.C. § 470w(7); see 36 C.F.R. § 800.16(y).



U.S. 313, 320-21 (1905). A valid claim affords its holder the right to possess, occupy,

and extract minerals from federal lands. 30 U.S.C. § 26; Wilbur v. United States ex rel.

Krushnic, 280 U.S. 306, 316 (1930) (a valid mining claim is “property [within] the fullest

sense of that term”); Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 47 (D.D.C.

2003). The Mining Law does not include any requirement to “diligently develop” or

extract minerals on the claim within a certain time frame. United States v. Curtis-Nevada

Mines, Inc., 611 F.2d 1277, 1281-82 (9th Cir. 1980).

Congress has given the Secretary of the Interior plenary authority to determine the

validity of mining claims. 43 U.S.C. § 1457. The Forest Service conducts validity

determinations pursuant to a Memorandum of Understanding with the Department of the

Interior (“DOI”). See Linden Decl. ¶ 6 (citing Forest Service Manual (“FSM”) 1531.12).

The Forest Service does not have the authority to declare a mining claim void; rather,

such adjudications are conducted by DOI. See AR 7311 (FSM 2819).2

If lands on which mining operations are proposed are withdrawn from mineral

entry, subject to valid existing rights, the surface managing agency will conduct a validity

determination before allowing new operations. 43 C.F.R. § 3809.100; AR 11602 (BLM

Handbook H3809-1, § 8.1.5); AR 7310, 7298 (FSM 2818.3, 2817.23, ¶ 6). This VER

Determination verifies that the mining claims constitute valid existing rights exempt from

the withdrawal based on whether there was a discovery of a valuable mineral deposit at

the time of the withdrawal. See United States v. Pass Minerals, Inc., 168 IBLA 115, 122

2 Defendants cite the administrative record filed with this Court in 1988 as “1988 AR __” and cite the subsequent administrative record for Canyon Mine as “AR __”.



(2006); Linden Decl. ¶ 7. The VER Determination will also verify that the mining claims

continue to be valid at the time the operator is seeking surface use authorization. Id.

D. Forest Service Regulation of Surface Resources

The Forest Service regulates and permits mineral development activities for

locatable minerals that may affect surface resources on National Forest System lands.

See 36 C.F.R. Part 228A; Freese v United States, 6 Cl. Ct. 1, 11-12 (Cl. Ct. 1984), aff’d,

770 F.2d 177 (Fed. Cir. 1985). Operators must have an approved mining Plan before

conducting operations that cause “significant disturbance.” See 36 C.F.R. § 228.4.

FACTUAL BACKGROUND

A. 1986 EIS and ROD Approving Plan of Operations

In 1984, Energy Fuels Nuclear submitted to the Kaibab National Forest a proposed

Plan to mine uranium at the Canyon Mine site, approximately six miles south of the

Grand Canyon National Park boundary. 1988 AR 193 (Plan). The Forest Service

completed an EIS to evaluate the potential environmental effects of the Plan, and

considered comment and input from federally recognized tribes. 1988 AR 461 (EIS). In

1986, the Forest Service issued the final EIS and ROD, approving the Plan with

modifications. 1988 AR 915 (ROD). The Plan did not have an expiration date.

The Forest Service received twelve administrative appeals on the ROD, including

appeals from the Hopi and Havasupai Tribes, and the Sierra Club Legal Defense Fund.

1988 AR 3932. These parties raised 25 different issues including First Amendment and

American Indian Religious Freedom Act (“AIRFA”) challenges, a variety of NEPA

challenges regarding resources such as groundwater, and a challenge to the validity of



mining claims. 1988 AR 3933. The tribes’ appeals were not limited to the record

developed at the time of the EIS and ROD, but included new information.3

In 1987, the Deputy Regional Forester issued his appeal decision, affirming the

ROD. 1988 AR 3928. This decision was based on the entire record, including the new

information tribes had submitted to date. 1988 AR 3931, 3934-35. In 1988, the Chief of

the Forest Service affirmed the decision below after considering all information that had

been presented. 1988 AR 5230. The Chief’s decision discussed the tribal religious issues

(including the sacred nature of Red Butte and the Canyon Mine site), the claimed

groundwater contamination, and mineral claim validity. 1988 AR 5231-39, 5242-44,

5239-40. The Secretary of Agriculture decided not to review the appeal. 1988 AR 5288.

The Havasupai Tribe and others challenged the 1986 EIS and ROD in this Court.

Havasupai Tribe v. United States, 752 F. Supp. 1471 (D. Ariz. 1990). In that proceeding,

the plaintiffs submitted additional evidence about tribal religious concerns as an offer of

proof to the District Court. Id. at 1485 n.7. The Court “assum[ed] that all of plaintiff’s

assertions about the religious sanctity of the Canyon Mine site and adverse effects on the

Havasupai [religion] are true,” id. at 1485, and found in favor of the Forest Service on all

3 The information included: (1) The Havasupai Tribe’s affidavit on tribal religious issues and sacred sites (1988 AR 3137-43); (2) The hearing held in the Office of the Chief on the appeal of the Regional Forester’s denial of a stay (1988 AR 3716–825), which included discussions from Havasupai Tribe leaders and their counsel on tribal religious issues and sacred sites (1988 AR 3733-69); (3) The hearing held on the merits of the appeal before the Deputy Regional Forester, at which Havasupai Tribe representatives spoke on tribal religious issues and sacred sites and presented expert testimony on groundwater issues (1988 AR 1882–992, 1811-14).



of the plaintiffs’ NEPA, First Amendment, and AIRFA claims. Id. at 1505. The Ninth

Circuit affirmed. Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991).

B. Implementation of the Plan Prior to Standby Status

In the 1990s, all surface structures at the Canyon Mine were constructed, including

access roads, hoist, storage buildings, the power line, a perimeter fence and diversion

structures, a head frame, support buildings, and sediment ponds. AR 10487

(confidential), Pls. Ex. 15 at 5 (ECF No. 39-4) (redacted). The sinking of the mine shaft

had begun, but stopped at approximately 50 feet when Canyon Mine went into standby

status in 1992. Id.; Schuppert Decl. ¶ 3. The Plan remained in effect, and the mine

operator has maintained a reclamation bond throughout this time period. Id.

C. The Secretary of the Interior’s Land Withdrawal Decision and the Forest Service’s VER Determination

Canyon Mine is within the area in northern Arizona that was the subject of the

Secretary of the Interior’s July 2009 proposal to withdraw certain public lands from

location and entry under the Mining Law for up to twenty years, subject to valid existing

rights. Notice of Proposed Withdrawal, 74 Fed. Reg. 35887-01 (July 21, 2009). The

Notice of Proposed Withdrawal temporarily “segregated” or closed the designated lands

to entry and location of new mining claims.

In January 2012, after completing an EIS and other studies, the Secretary of the

Interior published a “Public Land Order,” which withdrew approximately one million

acres from mineral location and entry for twenty years. 77 Fed. Reg. 2317-01 (Jan. 17,

2012). The withdrawal was subject to valid existing rights and the EIS for the



withdrawal expressly contemplated that mining will proceed at Canyon Mine, as well as

three other previously authorized mines on BLM-managed lands. AR 10313-14, 8657.

Although Canyon Mine was approved before the segregation and withdrawal, the Forest

Service on April 18, 2012 took a conservative approach and completed a VER

Determination of the mining claims though it was not required by law to do so.4 This

VER Determination confirmed that the mining claims were valid as of the date of the

segregation, and thus were unaffected by the withdrawal. AR 10487 (confidential), Pls.

Ex. 15 at 5 (ECF No. 39-4) (redacted).

D. The Forest Service’s 2012 Review of 1986 EIS and ROD In 2011, the mine operator informed the Forest Service that it intended to resume

active mining operations under its existing Plan. In 2012, the Forest Service conducted a

review of the 1986 EIS and ROD, and associated documents. AR 10594. The Forest

Service determined that no amendment or modification of the Plan was required because

there was no unforeseen significant disturbance of surface resources and there was no

new proposal. Id. Accordingly, no further federal authorizations were needed for mining

activities at Canyon Mine to continue. AR 10592.

E. Consultation Under the NHPA

In conjunction with the 1986 EIS and ROD, the Forest Service completed

consultation under Section 106 of the NHPA. In 1992, the NHPA was amended to

provide for more robust tribal consultation and explicit inclusion of TCPs as historic

4 BLM did not prepare a VER Determination of the mining claims at the Arizona 1 Mine. See CBD, 706 F.3d 1085.



properties. See Pub. L. No. 102-575, § 4001 et seq., 106 Stat. 4600. The Advisory

Council on Historic Preservation (“ACHP”) subsequently amended its regulations to

define “historic property” as including “properties of traditional religious and cultural

importance to an Indian tribe . . . that meet the National Register criteria.” 36 C.F.R. §

800.16 (l)(1); see 65 Fed. Reg. 77698, 77738 (Dec. 12, 2000).

As early as 2008, the Forest Service communicated with multiple tribes,

including the Havasupai, about potential resumption of operations at Canyon Mine

during yearly tribal consultation meetings and through letters. Lyndon Decl. ¶3.

In 2010, in response to a separate proposed undertaking, the Forest Service

determined that the Red Butte TCP was eligible for inclusion on the National Register.

Lyndon Decl. ¶ 2.5 This determination of eligibility evaluated the physical integrity of

Red Butte TCP as a cultural landscape and took into account that all surface structures at

Canyon Mine had been built and the drilling of the mine shaft had begun.

Because there were no new proposed activities that would require a modification

of the existing mining Plan or a new Plan, the Forest Service concluded there was no new

federal undertaking subject to NHPA Section 106 compliance. However, since the

definition of “historic property” had changed since the 1986 ROD, the Red Butte TCP

could be considered a newly “discovered” historic property, and potential effects could

then be considered “unanticipated effects” to a historic property. AR 10544.

5 The Forest Service’s “determination of eligibility” is an internal determination that the agency will treat the historic property as eligible for the National Register and subject to NHPA procedural requirements. See 36 C.F.R. § 63.2. Only the Keeper of the National Register can make a formal determination of eligibility. See 36 C.F.R. § 63.3.



Accordingly, on June 25, 2012, the Forest Service officially initiated consultation with

the Havasupai and other tribes, Arizona State Historic Preservation Officer (“SHPO”),

and ACHP regarding the potential effects of mining activities on the Red Butte TCP. AR

10592. The Forest Service applied the procedures in 36 C.F.R. § 800.13(b)(3) to the

consideration of Red Butte TCP because the undertaking had already been approved and

construction activities had begun. AR 10555-57.

The Forest Service recognized that the regulation’s 48-hour response timeline may

not provide for adequate consultation and, consequently, extended the response period to

allow thirty days from the date of its letter for a response. AR 10545. The Forest

Service acknowledged that mining activities would adversely affect Red Butte TCP and

sought to work with the tribes to identify actions to address their concerns. Hangan Decl.

¶ 2. The Havasupai Tribe and the Forest Service subsequently exchanged letters

regarding consultation for several months and met in person on multiple occasions.

Lyndon Decl. ¶¶ 3-4.

On April 6, 2013, Energy Fuels Resources, which had acquired the mining

interests, began drilling the mine shaft past 50 feet. Schuppert Decl. ¶ 5.

STANDARD OF REVIEW

A. Standard for Obtaining Preliminary Injunctive Relief

To obtain a preliminary injunction, a plaintiff must show four elements: (1) a

likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of

an injunction, (3) that the balance of equities tips in his favor, and (4) that the injunction

is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).



The Ninth Circuit has held that its “serious questions” test – a “sliding scale test” under

which a lesser showing of “serious questions going to the merits” may be sufficient for an

injunction provided that the other three prongs for preliminary injunctive relief also have

been established – survives Winter. See Alliance for Wild Rockies v. Cottrell, 632 F.3d

1127, 1134 (9th Cir. 2011).

B. The Administrative Procedure Act

Because NEPA and NHPA do not create an independent cause of action, courts

must review those claims under the APA, 5 U.S.C. § 551 et seq.; Pit River Tribe v. U.S.

Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006); ONRC Action v. Bureau of Land Mgmt.,

150 F.3d 1132, 1135 (9th Cir. 1998). The APA imposes a narrow and highly deferential

standard of review limited to a determination of whether the agency acted in a manner

that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with the law.” 5 U.S.C. § 706(2)(a); see Marsh v. Or. Natural Res. Council, 490 U.S.

360, 378 (1989); McNair, 537 F.3d at 987.

ARGUMENT I. RES JUDICATA BARS PLAINTIFFS’ NHPA CLAIMS

Res judicata bars relitigation of claims and issues that were or could have been

litigated in a prior action. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008); Allen v.

McCurry, 449 U.S. 90, 94 (1980). Res judicata “bar[s] claims arising from the same

[cause of action], even if brought under different statutes.” Kremer v. Chem. Constr.

Corp., 456 U.S. 461, 481 n.22 (1982) (citation omitted). The four factors to consider

when determining whether two cases involve the same cause of action are:



(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Rein v. Providian Fin. Servs., 270 F.3d895, 903 (9th Cir. 2001) (citation omitted). Here,

Plaintiffs clearly “might” have pursued claimed violations of the NHPA in Havasupai

Tribe, as archaeological sites subject to the NHPA had been identified before Plaintiffs

brought their challenge to the 1986 ROD. AR 10601. Instead, they claimed that the

1986 ROD violated AIRFA, their First Amendment right to free exercise of religion, and

NEPA because the Forest Service allegedly had not adequately considered the

Havasupai’s religious concerns. Havasupai Tribe, 752 F. Supp. at 1484-86, 1488-89,

1493-1500. Under these circumstances, Plaintiffs’ NHPA claims in this case allege

essentially the same cause of action that they brought in Havasupai Tribe. The Forest

Service’s 1986 ROD that was upheld in the previous action could be impaired by a

conflicting judgment in this case. Because both cases involve exactly the same mining

Plan, substantially the same administrative record would be at issue. Both suits alleged a

failure to sufficiently consider the importance of the Canyon Mine area, including the

area now determined to be eligible as the Red Butte TCP, to Plaintiffs’ religious

practices. And, both arise out of the same “transactional nucleus of facts”– the Forest

Service’s authorization of the Plan. Thus, res judicata bars Plaintiffs’ NHPA claims.

II. PLAINTIFFS’ CLAIMS ARE TIME-BARRED

The Court also lacks jurisdiction because the statute of limitations and laches bar

Plaintiffs’ claims. The six-year statute of limitations set forth in 28 U.S.C. § 2401(a)



applies to claims brought under the APA. See Sierra Club v. Penfold, 857 F.2d 1307,

1315-16 (9th Cir. 1988). The 1986 ROD is the only agency decision that authorizes the

mining activities at issue. The Plan has remained in effect despite the hiatus in mining

operations. Thus, any claim challenging the ROD or Plan is time-barred. To the extent

Plaintiffs may argue the intervening changes in law due to the 1992 amendments to the

NHPA or regulations issued in 1999 and 2000 create a retroactive obligation the statute

of limitations on any such claim has also run. Such a suit is also barred by laches.

III. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR NEPA CLAIM REGARDING THE VER DETERMINATION

Even if the Court finds that Plaintiffs have established jurisdiction, Plaintiffs are

not likely to succeed on the merits of their NEPA claim. Contrary to Plaintiffs’

assertions, the VER Determination was not necessary before mining activities at Canyon

Mine could continue and did not trigger NEPA. Pls. Mem. at 17-20 (ECF No. 39).

First, Plaintiffs’ arguments arise from their misunderstanding of the VER

Determination. As explained in BLM guidance that the Forest Service follows,

[a] mineral report serves two functions. One is to give a professionally prepared and technically reviewed report on the merits of the mining claim. . . . Secondly the mineral report can be a powerful tool when submitted into evidence at a contest hearing.

AR 5901, 6796 (BLM Handbook H-3870-1, at IV-B; id. at H-3890-3, at VI-1); see AR

7286 (FSM 2815.04); Linden Decl. ¶¶ 5-6. In other words, a VER Determination is an

internal document that the agency uses as a tool in later decision-making processes or



adjudications, but has no legal effect by itself. 6 Additional processes would be needed

before the Forest Service could revoke or invalidate the Plan, even if as a first step the

VER Determination had reached a finding of invalidity. Thus, Plaintiffs’ claim fails

because they have not challenged a final agency action by which rights or obligations

have been determined, or from which legal consequences will flow. Bennett v. Spear,

520 U.S. 154, 177-78 (1997).

Second, while Plaintiffs claim that a VER Determination was required for active

operations at Canyon Mine to resume because of the withdrawal, they are mistaken. Pls.

Mem. at 17. A VER would be required for a new Plan on an existing mining claim, but

no VER is required when a Plan was approved before the withdrawal. As noted in the

ROD for the withdrawal, “On withdrawn lands, neither the BLM nor the USFS will

process a new notice or plan of operations until the surface managing agency conducts a

mineral examination and determined that the mining claims on which the surface

disturbance would occur were valid as of the date the lands were segregated or

6 If the mineral report concluded that valid existing rights were not established, the Forest Service would forward its conclusion to BLM with a recommendation regarding whether to contest the mining claim. AR 7284, 7310 (FSM 2814.11, 2819); see also McKown v. United States, 2012 WL 5423863, at *7-11 (E.D. Cal. Nov. 5, 2012) (describing the lengthy administrative adjudicatory process for deciding validity of mining claims). If BLM concurs with the Forest Service’s finding of no valid existing rights, BLM could initiate a mineral contest against the mining claim on behalf of the Forest Service. See Cameron, 252 U.S. at 464. The VER Determination would then be submitted as an expert report in support of the contest charges. Linden Decl. ¶ 6. Until DOI makes a final determination of invalidity--and that determination withstands any subsequent federal court challenge--the Forest Service could not terminate or revoke a Plan on withdrawn lands. Ctr. for Biological Diversity, 162 IBLA 268, 281 (2004); Pass Minerals, Inc., 151 IBLA 78, 87 (1999); AR 7279-80 (FSM 2811.5). Any Plan revocation or suspension would involve a further adjudicatory process under 36 C.F.R. § 228.7 with opportunity for administrative appeal and judicial challenge.



withdrawn.” AR 10314-15 (emphasis added). This is consistent with Forest Service

policy to conduct VER determinations for new proposals to authorize new mineral

exploration or mining in withdrawn areas, see Linden Decl. ¶ 7; AR 7310, 7298 (FSM

2818.3, 2817.23, ¶ 6), as well as BLM guidance. 43 C.F.R. § 3809.100; AR 11602

(BLM Handbook H3809-1, § 8.1.5). Even for new proposals in withdrawn areas a VER

determination itself does not provide authorization for mining activities as it is only one

step in an agency’s decision-making process.7

No law or policy requires a VER determination for already-approved mines with

effective Plans. Nonetheless, the Forest Service retains the discretion to conduct a VER

determination at any time, Linden Decl. ¶ 4; AR 7284, 7310 (FSM 2814.11, 2819).

Third, whether Plaintiffs’ NEPA claim is viewed as a request for a new EIS or

supplementation of the 1986 EIS, their claim fails because the VER Determination is not

a major federal action. An EIS is required only for “major Federal actions significantly

affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).8 A

supplemental EIS is required “only if there remains major Federal action to occur.”

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 73 (2004) (“SUWA”) (internal

quotation marks, citation, and alteration omitted). Likewise, once an agency has taken

7 Plaintiffs cite Yount v. Salazar, 2013 WL 93372, at *2, 4, 8 (D. Ariz. Jan. 8, 2013), to argue that a VER determination is mandatory on withdrawn lands, Pls. Mem. at 15 n.6, but that case is distinguishable because it did not address Plans that pre-date the withdrawal. Similarly, Plaintiffs’ reliance on Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996), where a federal permit was required, is inapposite. See Pls. Mem. at 17. The Forest Service did not retain discretionary control after approving the Plan. 8 A new EIS is not required for the further reason that the VER Determination does not authorize any activities, and thus does not significantly affect the environment.



action to approve a regulated project, “there is no ongoing ‘major Federal action’

requiring supplementation” and the agency’s “obligation under NEPA has been fulfilled.”

Cold Mountain v. Garber, 375 F.3d 884, 894 (9th Cir. 2004); see also Greater

Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1122 (10th Cir. 2009) (no ongoing major

federal action where agency issued permit for use of federal land; NEPA applies only to

federal agencies, so actions of non-federal party implementing project are not relevant).

In CBD, the Ninth Circuit rejected a NEPA claim similar to the one brought here.

In that case, the BLM had approved the Plan for the Arizona 1 Mine in 1988, after which

the mining company began developing the mine until mining activities suspended in

1992. 706 F.3d. at 1088. In 2007, the mine operator informed BLM of its intention to

restart mining operations after a 17-year hiatus under the existing Plan. Id. at 1089. The

Ninth Circuit held that the NEPA review for the 1988 Arizona 1 Plan was complete and

no major federal action triggered supplemental NEPA analysis for the 1988 Plan, which

had remained in effect despite the period of inactivity. Id. at 1095-96. Furthermore, the

court rejected the plaintiffs’ arguments that more recent agency actions, such as BLM’s

issuance of a gravel permit, its requirement of a new air quality control permit, and its

approval of an updated reclamation bond were major federal actions that triggered

NEPA. Id. at 1095. Instead, the court found those actions did not affect the validity or

completeness of the 1988 Plan. Id.

No major federal action remains to occur here. The Forest Service prepared a

thorough NEPA analysis of Canyon Mine and conducted consultation when issuing the

1986 ROD. Havasupai Tribe, 943 F.2d at 32. The federal action came to an end in 1986



when the Forest Service issued its ROD. See SUWA, 542 U.S. at 73. The existing Plan

remains in effect despite the hiatus in mining activities, so there is no federal action left

to occur, and no further NEPA analysis was required.9 AR 10600-01.

Finally, Plaintiffs try to save their NEPA claim by characterizing the VER

Determination as a “discretionary agency action,” but this argument misses the mark.

Pls. Mem. at 15. The fact that the Forest Service decided in its discretion to evaluate the

validity of the mining claims for the Canyon Mine does not render the outcome of the

VER Determination “discretionary”--nor does it trigger any requirement to undertake

NEPA analysis. Once the Forest Service initiated the VER Determination, the outcome

of the VER Determination was governed strictly by the facts pertaining to the mining

claim. The Forest Service was not at liberty to make a choice among alternatives, nor to

consider environmental impacts, when reaching its conclusion in the VER Determination.

In that sense, the VER was nondiscretionary and therefore did not trigger NEPA. See,

e.g., Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995) (collecting cases

demonstrating that nondiscretionary agency action is excused from the operation of

NEPA); Sac & Fox Nation v. Norton, 240 F.3d 1250, 1262-1263 (10th Cir. 2001)

(“NEPA compliance is unnecessary where the agency action at issue involves little or no

discretion on the part of the agency”); Defenders of Wildlife v. Andrus, 627 F.2d 1238,

1245 (D.C. Cir. 1980); S. Dakota v. Andrus 614 F.2d 1190, 1193 (8th Cir. 1980); see also

9 A supplemental Plan is needed only if there is a proposal for significant disturbance of surface resources not covered by the initial Plan. 36 C.F.R. § 228.4(d). There is no such proposal here. AR 10598-600.



CBD, 706 F.3d. at 1096 (NEPA not required for BLM’s ministerial actions associated

with update of reclamation bond).

In The Wilderness Society v. Robertson, the court rejected the plaintiffs’ claim that

an EA or EIS had to be prepared for a VER determination. 824 F. Supp. 947, 953 (D.

Mont. 1993), aff’d sub nom. The Wilderness Society v. Dombeck, 168 F.3d 367 (9th Cir.

1999). The court held that “[t]he Forest Service’s decision-making process in

determining the validity of a mining claim under Section 1133(d)(2) of the Wilderness

Act is not a discretionary matter of granting or denying a privilege, but rather is a non-

discretionary act of determining whether rights conferred by Congress have come into

existence.” 824 F. Supp. at 953. The court explained that an EIS is not required for

nondiscretionary agency action for which “no viable options or alternatives exist.” Id.10

VER Determinations contain objective analyses and recommendations as to

whether a property right exists as of a date certain. Plaintiffs argue that an agency can

reach alternative outcomes when preparing a VER determination, based on the costs

analysis involved. Pls. Mem. at 16-18. However, the requisite cost factors do not

provide unbounded discretion to consider environmental impacts. See Linden Decl. ¶ 12;

AR 6767 (BLM Handbook H3890-3). The costs analysis that the Forest Service properly

conducted, see Linden Decl. ¶¶ 12-14; AR 10500-02 (confidential), Ps. Ex. 15 at 18-20

(ECF No. 39-5) (redacted), did not constitute a “meaningful opportunity” to consider

10 Moreover, DOI’s issuance of mineral patents, which involves a VER determination at one stage of the proceedings, is nondiscretionary, and thus not subject to NEPA. Swanson v. Babbitt, 3 F.3d 1348, 1353-54 (9th Cir. 1993); S. Dakota, 614 F.2d at 1194-95; Linden Decl. ¶ 4. Because a VER Determination is only one subcomponent of the entire mineral patenting process, a VER Determination is not subject to NEPA.



environmental impacts and choose among alternatives. Marsh, 490 U.S. at 372, 374.

Rather, the VER Determination is akin to the “crunching [of] some numbers” that the

Ninth Circuit in CBD found to be exempt from NEPA. 706 F.3d at 1096.

IV. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS OF THEIR NHPA CLAIMS

A. The Forest Service Fully Complied with Section 106’s Requirements

and Properly Followed the Procedures at 36 C.F.R. § 800.13(b)(3)

Plaintiffs claim that the Forest Service should have followed Section 800.13(b)(1)

of the NHPA regulations when engaging in formal consultation with the Havasupai Tribe

regarding the Red Butte TCP. Pls. Mem. at 11-13. This claim lacks merit.

In 1986 when the Forest Service issued the ROD, it completed consultation for

Canyon Mine in accordance with Section 106 of the NHPA. The qualities that now make

Red Butte TCP eligible for listing were known and all information disclosed by tribes

was considered in the agency’s final decision, which the Ninth Circuit upheld.

After approval of an undertaking, further Section 106 compliance may be required

in only limited circumstances. The NHPA regulations allow for reasonable

considerations of potential effects to historic properties if they were not anticipated or if

new historic properties are “discovered” after the Section 106 process concluded, but the

undertaking has not been completed and there is still an opportunity to avoid, minimize,

or mitigate effects from the undertaking. 36 C.F.R. § 800.13. Section 800.13(b)(3)

provides that “[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 SHPO/THPO, any Indian tribe . . . that might attach religious and



cultural significance to the affected property, and the Council within 48 hours of the

discovery.” Section 800.13(b)(3) also provides a 48-hour timeline for consulting parties

to respond with their concerns.

Because the mine operator did not propose any new activities that would require a

modified or new Plan, there was no new federal undertaking subject to the NHPA after

the agency issued the 1986 ROD.11 Since the undertaking had been approved and

construction had begun, the Forest Service properly applied 36 C.F.R. § 800.13(b)(3),

rather than subsection (b)(1). In fact, the Forest Service went above and beyond the

requirements of subsection (b)(3) by providing Plaintiffs up to 30 days for comments and

not merely 48 hours. AR 10545; Hangan Decl. ¶ 2. The agency then sought to establish

agreed-upon mitigation measures to address effects to Red Butte TCP. Hangan Decl. ¶ 9.

Plaintiffs rely heavily on the ACHP’s August 1, 2012 letter, AR 11335, in which

the ACHP stated that it believed the Forest Service should proceed under 36 C.F.R. §

800.13(b)(1). Pls. Mem. at 13. However, in subsequent communications with the

ACHP, it became evident that this letter was based on a misunderstanding about the

status of the construction at Canyon Mine before standby status. Hangan Decl. ¶¶ 4-5. In

11 The cases Plaintiffs cite to argue that there is an ongoing federal action subject to the NHPA are inapposite. Pls. Mem. at 3-4 (citing Vieux Carre Prop. Owners v. Brown, 948 F.2d 1436, 1445 (5th Cir. 1991); Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 280 (3d Cir. 1983); WATCH v Harris, 603 F.2d 310, 325-26 (2d Cir. 1979); Okinawa Dugong v. Rumsfeld, 2005 WL 522106, at *13 (N.D. Cal. March 2, 2005)). These cases all involved situations that required further federal action to fund or approve activities, which is not comparable to the Forest Service’s one-time approval of a Plan that a private party would implement without requiring further federal involvement.



an April 3, 2013 conference call, after the misinformation was clarified, the ACHP stated

that its letter set forth a policy position, not a legal position. Hangan Decl. ¶ 8.

Plaintiffs argue that deference should be given to the statements in the ACHP’s

letter, but the prerequisite conditions for such deference are not present here. Ordinarily,

courts may give some degree of deference to an agency’s interpretation of its own

ambiguous regulation. Auer v. Robbins, 519 U.S. 452, 461-62 (1997). However, Auer

deference is inappropriate “when the agency’s interpretation is ‘plainly erroneous or

inconsistent with the regulation,’” or “when there is reason to suspect that the agency’s

interpretation does not reflect the agency’s fair and considered judgment on the matter in

question.” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012)

(internal quotations and citations omitted)). Here, the plain language of the regulations

requires the use of 36 C.F.R. § 800.13(b)(3) after “the agency official has approved the

undertaking and construction has commenced.” The ACHP letter is inconsistent with the

unambiguous regulation. Additionally, the statements in the ACHP letter do not

constitute a fair and considered judgment of the agency, and instead reflects the ACHP’s

evolving position as factual mistakes were clarified. See Hangan Decl. ¶¶ 4, 8. Thus, no

deference to the ACHP’s letter is warranted. The Forest Service’s application of Section

800.13(b)(3) was proper and should be upheld.

B. The VER Determination Is Not an Undertaking Under the NHPA

Contrary to Plaintiffs assertions, Pls. Mem. at 15, a VER determination by itself

cannot legally constitute a federal undertaking that triggers NHPA consultation because it

is not a “project, activity, or program,” nor is it a “Federal permit, license or approval.”



16 U.S.C. § 470f; 36 C.F.R § 800.16. It is also not a final agency action, as discussed

above. Whether an undertaking exists under the NHPA is analogous to the question of

whether a major federal action exists under NEPA. Coal. for Underground Expansion v.

Mineta, 333 F.3d 193, 197 n.7 (D.C. Cir. 2003); Karst Envtl. Educ. & Prot., Inc. v. EPA,

403 F. Supp. 2d 74, 79 (D.D.C. 2005), aff’d, 475 F.3d 1291 (D. C. Cir. 2007); Okinawa

Dugong, 2005 WL 522106, at *12 (“The standards for identifying ‘undertakings’ under

the NHPA have been widely held to be ‘similar’ to those for identifying ‘major federal

actions’ under [NEPA].”). Because the VER Determination is not a major federal action,

as discussed above, it is also not an undertaking under the NHPA.12 Thus, Plaintiffs are

not likely to succeed on the merits of their NHPA claims.

V. PLAINTIFFS HAVE NOT DEMONSTRATED ANY IRREPARABLE INJURY OR THAT THE BALANCE OF HARMS TIPS IN THEIR FAVOR To succeed on their Motion, Plaintiffs must show that they are likely to suffer

irreparable harm in the absence of preliminary relief.13 Winter, 555 U.S. at 20. Plaintiffs

have the burden to prove a substantial and immediate irreparable injury by a

12 Additionally, because a VER Determination merely sets forth an expert’s position on the ownership of minerals located at the site and has no direct effect on the historic property, it is not an NHPA undertaking. See Yerger v. Robertson, 981 F.2d 460, 465 (9th Cir. 1992) (Forest Service’s assertion of ownership of historic structure is not an undertaking because mere existence of ownership rights does not affect the historic property even when the assumption of control is clearly preparatory to action that will affect the site). Indeed, mineral patenting (for which a VER determination is only one step) has been exempted from any Section 106 requirements under the Regional Programmatic Agreement with the Arizona SHPO and the ACHP. AR 6834. 13 Plaintiffs’ requested relief poses redressability issues. Plaintiffs seek to enjoin the Forest Service from allowing mining, but the agency completed its authorization in 1986 and only private action to implement the Plan remains. Plaintiffs’ request to suspend the Plan that has withstood legal challenges would bypass several administrative processes at both the Forest Service and DOI, which is not a party to this case.



preponderance of the evidence. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558

(9th Cir. 1990). Courts “should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456

U.S. 305, 312 (1982). In balancing harms, the Court should consider not just potential

environmental harms but also economic harms.14 See Earth Island Inst. v. Carlton, 626

F.3d 462, 475 (9th Cir. 2010); McNair, 537 F.3d at 1005.

A. Procedural Violations Alone Do Not Constitute Irreparable Harm

Contrary to Plaintiffs’ arguments about their procedural NEPA and NHPA claims,

Pls. Mem. at 20-21, “[a] procedural injury alone is insufficient to . . . demonstrate the

irreparable injury required to justify injunctive relief.” Sierra Forest Legacy v. Sherman,

2013 WL 1627894, at *7 (E.D. Cal. Apr. 15, 2013). It is well settled that there is no

presumption of irreparable injury in environmental cases. Amoco Prod. Co. v. Vill. of

Gambell, 480 U.S. 531, 545-46 (1987); Ctr. for Food Safety v. Vilsack, 636 F.3d 1166,

1171 n.6 (9th Cir. 2011); McNair, 537 F.3d at 1005. Rather, moving parties must show

tangible irreparable injury. See Amoco Prod., 480 U.S. at 542.

B. Plaintiffs Cannot Show Immediate, Irreparable Harm15

Plaintiffs claim irreparable harm from the impacts that mining activities will have

14 Defendants anticipate that Intervenors will discuss such harms in their brief. 15 Plaintiffs’ delay in bringing their Motion undermines any claim of irreparable harm. Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985); Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984); Headwaters, Inc. v. BLM, 665 F. Supp. 873, 876 (D. Or. 1987). Although they have known for years of the mine operator’s intent to resume activities, Plaintiffs waited until now to seek emergency injunctive relief. To the extent Plaintiffs challenge the 2012 Mine Review, Plaintiffs waited nine months before filing suit.



on tribal resources. Pls. Mem. at 21-22. Throughout the consultation process, the Forest

Service has taken the Havasupai Tribe’s assertions of impacts to tribal resources at face

value. Courts have already considered the Tribe’s claims regarding their religious and

cultural practices, and the current operations at Canyon Mine are no more of an impact

than what was at issue in the earlier litigation. Even though operations at Canyon Mine

began over twenty years ago, the Havasupai Tribe has been continuing its ceremonial and

gathering practices. See AR 10633. Since the early 1990s, the Forest Service has worked

with tribes to insure the continued use of Red Butte for traditional gatherings,

ceremonies, and collection of medicinal plants. AR 10605. The Forest Service has made

management decisions to better protect Red Butte, such as by restricting motor vehicle

use, and continues to identify protective measures. See AR 5708.

In addition, Plaintiffs allege harm from effects on groundwater, although none of

the claims that form the basis of Plaintiffs’ emergency motion involves groundwater. Pls.

Mem. at 22-23. As the 1986 EIS explained, however, no operations at the depth of the

aquifer were proposed, no dewatering of the aquifer was proposed or permitted, and thus

no effect on the springs fed by that aquifer was expected. 1988 AR 773; see Congdon

Decl. ¶ 5. The conclusions of the 1986 EIS regarding groundwater were actually litigated

and resolved in favor of the Forest Service in Havasupai Tribe, 943 F.2d at 34;

Havasupai Tribe, 752 F. Supp. at 1500-03. Collateral estoppel bars re-litigation of these

groundwater issues. See Montana v. United States, 440 U.S. 147, 153 (1979); United

States v. ITT Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir. 1980). The 2012 Mine Review

considered the analysis of the original Plan and found no reason to reevaluate the



groundwater conditions. AR 10624. Likewise, the EIS for the withdrawal found that

Canyon Mine would not impact the water quantity or quality of springs fed by perched

aquifers, and would have negligible to immeasurable impacts on only one spring. AR

9518-21. Any perched aquifers the mine shaft would encounter would be highly unlikely

to affect the local water supply. Congdon Decl. ¶ 11. As for Plaintiffs’ arguments about

the Pinenut Mine, Pls. Mem. at 23, conditions at one site cannot be generalized to another

mine. Congdon Decl. ¶ 6. Canyon Mine is located in a manner such that any seepage

would flow away from Grand Canyon springs. Congdon Decl. ¶¶ 6, 8, 10.16

CONCLUSION

For all the foregoing reasons, Federal Defendants respectfully requests that the

Court deny Plaintiffs’ Motion for Preliminary Injunction.17

Dated: May 10, 2013 Respectfully submitted,

IGNACIA S. MORENO Assistant Attorney General /s/ Beverly F. Li

BEVERLY F. LI Trial Attorney, Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice

Attorney for Federal Defendants

16 As for Plaintiffs’ arguments regarding a 2010 U.S. Geological Survey (“USGS”) Report, Pls. Mem. at 23; Pls. Ex. 11, most of the information in that report was already contained in an earlier USGS report, and the 2010 Report did not did not change the agency’s conclusions. See AR 11788. 17 Plaintiffs ask that the Court not impose a bond. Pls. Mem. at 25 n.9. Under the general rule in Federal Rule of Civil Procedure 65(c), parties seeking a preliminary injunction, including environmental groups and citizens, must post a bond. See Save Our Sonoran, Inc. v. Flowers, 381 F.3d 905, 915-16 (9th Cir. 2004). Defendants support imposition of an appropriate bond and expect that Intervenors will provide evidence on this issue.



TABLE OF EXHIBITS

Exhibit Number Exhibit Name A Declaration of Michael Lyndon B Declaration of Michael Linden C Declaration of Elizabeth Schuppert D Declaration of Margaret Hangan E Declaration of Roger Congdon



CERTIFICATE OF SERVICE

I hereby certify that on May 10, 2013, a copy of the foregoing was served by

electronic means on the following:

Marc D. Fink Center for Biological Diversity 209 E 7th St Duluth, MN 55805 218-525-3884 Fax: 218-525-3857 Email: [email protected] Neil Levine Grand Canyon Trust 4438 Tennyson St. Denver, CO 80212 303-455-0604 Email: [email protected] Richard Warren Hughes Rothstein Donatelli Hughes Dahlstrom Schoenburg & Bienvenu LLP 1215 Paseo De Peralta Santa Fe, NM 87504 505-988-8004 Fax: 505-982-0307 Email: [email protected] Roger Flynn Western Mining Action Project P.O. Box 349 Lyons, CO 80540 303-823-5738 Fax: 303-823-5732 Email: [email protected] Attorneys for Plaintiffs Bradley Joseph Glass David J DePippo



Michael K Kennedy Gallagher & Kennedy PA 2575 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016-9225 602-530-8000 Fax: 602-530-8500 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Intervenors

/s/ Beverly F. Li Beverly F. Li

Counsel for Federal Defendants


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