National Mining Association v. Ryan Zinke , 877 F.3d 845 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL MINING No. 14-17350
ASSOCIATION,
Plaintiff-Appellant, D.C. Nos.
3:11-cv-08171-DGC
v. 3:12-cv-08038-DGC
3:12-cv-08042-DGC
RYAN ZINKE, Secretary of the 3:12-cv-08075-DGC
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND
MANAGEMENT; MICHAEL
NEDD, acting director, Bureau
of Land Management; UNITED
STATES FOREST SERVICE,
Defendants - Appellees,
GRAND CANYON TRUST; SIERRA
CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-Defendants-
Appellees.
2 NAT’L MINING ASS’N V. ZINKE
ARIZONA UTAH LOCAL No. 14-17351
ECONOMIC COALITION, on
behalf of member the Board of D.C. Nos.
Supervisors, Mohave County, 3:11-cv-08171-DGC
Arizona; METAMIN 3:12-cv-08038-DGC
ENTERPRISES USA, INC., 3:12-cv-08042-DGC
Plaintiffs-Appellants, 3:12-cv-08075-DGC
v.
RYAN ZINKE, Secretary of the
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND
MANAGEMENT; MICHAEL
NEDD, acting director, Bureau
of Land Management; UNITED
STATES FOREST SERVICE,
Defendants-Appellees,
GRAND CANYON TRUST; SIERRA
CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-Defendants-
Appellees.
NAT’L MINING ASS’N V. ZINKE 3
AMERICAN EXPLORATION & No. 14-17352
MINING ASSOCIATION,
Plaintiff-Appellant, D.C. Nos.
3:11-cv-08171-DGC
v. 3:12-cv-08038-DGC
3:12-cv-08042-DGC
RYAN ZINKE, Secretary of the 3:12-cv-08075-DGC
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND
MANAGEMENT; MICHAEL
NEDD, acting director, Bureau
of Land Management; UNITED
STATES FOREST SERVICE,
Defendants-Appellees,
GRAND CANYON TRUST; SIERRA
CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-Defendants-
Appellees.
4 NAT’L MINING ASS’N V. ZINKE
GREGORY YOUNT, No. 14-17374
Plaintiff-Appellant,
D.C. Nos.
v. 3:11-cv-08171-DGC
3:12-cv-08038-DGC
RYAN ZINKE, Secretary of the 3:12-cv-08042-DGC
Interior; UNITED STATES 3:12-cv-08075-DGC
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES OPINION
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND
MANAGEMENT; MICHAEL
NEDD, acting director, Bureau
of Land Management; UNITED
STATES FOREST SERVICE,
Defendants-Appellees,
GRAND CANYON TRUST; SIERRA
CLUB, NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
NAT’L MINING ASS’N V. ZINKE 5
Argued and Submitted December 15, 2016*
San Francisco, California
Filed December 12, 2017
Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Frederic Block, District Judge.**
Opinion by Judge Berzon
SUMMARY***
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
*
Case No. 14-17351 was submitted on the briefs without oral
argument on the motion of the appellants in that case.
**
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.
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
COUNSEL
Robert Timothy McCrum (argued), Crowell & Moring LLP,
Washington, D.C., for Plaintiff-Appellant National Mining
Association.
Jeffrey Wilson McCoy (argued) and Steven J. Lechner,
Mountain States Legal Foundation, Lakewood, Colorado, for
Plaintiff-Appellant American Exploration & Mining
Association.
Constance E. Brooks, Danielle Hagen, and Cody Doig, C. E.
Brooks & Associates P.C., Denver, Colorado, for Plaintiff-
Appellant Arizona Utah Local Economic Coalition.
Gregory Yount, Chino Valley, Arizona, pro se Plaintiff-
Appellant.
Brian C. Toth (argued) and John C. Most, Attorneys; John C.
Cruden, Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Aaron G. Moody, Kendra Nitta, and Sonia
Overholser, Office of the Solicitor, United States Department
of the Interior; Pamela P. Henderson, Office of the General
Solicitor, United States Department of Agriculture; for
Defendants-Appellees.
Edward B. Zukoski (argued), Earthjustice Denver, Colorado;
Roger Flynn, Western Mining Action Project, Lyons,
Colorado; Aaron M. Paul, Grand Canyon Trust, Denver,
Colorado; for Intervenor-Defendants-Appellees.
Anthony L. Rampton, Kathy A.F. Davis, and Roger R.
Fairbanks, Assistant Attorneys General; Bridget K. Romano,
10 NAT’L MINING ASS’N V. ZINKE
Solicitor General; Sean D. Reyes, Attorney General; Office
of the Attorney General, Salt Lake City, Utah; Mark
Brnovich, Attorney General, Office of the Attorney General,
Phoenix, Arizona; Tim Fox, Attorney General, Department of
Justice, Helena, Montana; Adam Paul Laxalt, Attorney
General, Office of the Attorney General, Carson City,
Nevada; for Amici Curiae States of Utah, Arizona, Montana,
and Nevada.
Heather Whiteman Runs Him and Matthew L. Campbell,
Native American Rights Fund, Boulder, Colorado, for Amici
Curiae Paiute Indian Tribe of Utah, Hualapai Tribe of the
Hualapai Reservation, Kaibab Band of Paiute Indians, San
Juan Southern Paiute Tribe, Northwestern Band of the
Shoshone Nation, Morning Star Institute, and National
Congress of American Indians.
Katherine Belzowski, Attorney; Ethel B. Branch, Attorney
General; Navajo Nation Department of Justice, Window
Rock, Arizona; for Amicus Curiae Navajo Nation.
OPINION
BERZON, Circuit Judge:
We consider challenges to the decision of the Secretary of
the Interior to withdraw from new uranium mining claims, for
up to twenty years, over one million acres of land near Grand
Canyon National Park. Determining the appropriate balance
between safeguarding an iconic American natural wonder and
permitting extraction of a critically important mineral is at the
heart of the present dispute.
NAT’L MINING ASS’N V. ZINKE 11
The fission of uranium atoms into smaller component
parts releases a huge amount of energy — enough to sustain
a nuclear chain reaction, as scientists discovered in the first
half of the last century. The design and construction of
nuclear reactors and weaponry followed. In the ensuing
years, uranium became, at times, highly valuable, though
prices rose and fell dramatically in response to swings in
demand. Uranium also entered the cultural lexicon.1
In 1947, large quantities of uranium were discovered in
Arizona near Grand Canyon National Park, a treasured
natural wonder and World Heritage Site — called, by John
Wesley Powell, “the most sublime spectacle in nature.” John
Wesley Powell, Canyons of the Colorado 394 (1895).
Northern Arizona saw limited uranium mining until a spike
in uranium prices in the late 1970s led to a uranium mining
surge in the 1980s and 1990s, when six new mines opened.
But the mining boom did not last. With the collapse of the
Soviet Union and consequent decommissioning of large
numbers of nuclear warheads, demand for uranium dropped
dramatically in the 1990s. Uranium production in much of
northern Arizona stopped.
Prices spiked again in 2007, and renewed interest in
mining operations in the region followed. With that
1
For example, in the heyday of uranium mining, “Moab changed the
name of its annual rodeo from Red Rock Roundup to Uranium Days
Rodeo.” Stephanie A. Malin, The Price of Nuclear Power: Uranium
Communities and Environmental Justice 37 (1981). “In the 1950s, young
women were crowned as Uranium Queen and Miss Atomic Energy.” Id.Even now, uranium is the subject of its own film festival — the
International Uranium Film Festival — featuring several films set in and
around the American Southwest. See Int’l Uranium Film Festival,
http://www.uraniumfilmfestival.org.
12 NAT’L MINING ASS’N V. ZINKE
resurgence came concerns about the environmental impact of
the extraction of radioactive materials such as uranium.
Reflecting those concerns, then-United States Secretary
of the Interior (“the Secretary”)2 Kenneth L. Salazar
published a Notice of Intent in the Federal Register to
withdraw from new uranium mining claims, for a period of
up to twenty years, a tract of nearly one million acres of
federally owned public land. See Federal Land Policy and
Management Act of 1976 (“FLPMA”)3 § 204(c), 43 U.S.C.
§ 1714 (authorizing the Secretary to make, revoke, or modify
such withdrawals subject to certain conditions).4 After an
extended study period, the Secretary issued a Record of
Decision (“ROD”) in January 2012 announcing the
withdrawal of 1,006,545 acres.
Several entities and one private individual opposed to the
withdrawal challenged the Secretary’s decision in four
separate actions filed in the District of Arizona. Parties
interested in supporting the withdrawal moved to intervene,
including four environmental groups and the Havasupai
2
Although it is the Secretary who has ultimate authority to make a
withdrawal, we occasionally refer to the Secretary as “the Interior” to
better reflect that the Secretary’s withdrawal decision was informed by
extensive analysis within the Department of the Interior and its constituent
agencies.
3
See Appendix A for a list of acronyms used in this opinion.
4
A “withdrawal” means “withholding [of] an area of Federal land
from settlement, sale, location, or entry, under some or all of the general
land laws, for the purpose of limiting activities under those laws in order
to maintain other public values in the area or reserving the area for a
particular public purpose or program.” 43 U.S.C. § 1702(j).
NAT’L MINING ASS’N V. ZINKE 13
Tribe. The district court, in two well-crafted opinions,
rejected the various challenges to the withdrawal.
I. Background
We begin with a brief history of the political and
legislative backdrop against which FLPMA was enacted in
1976.
The Property Clause of the U.S. Constitution vests in
Congress the “power to dispose of and make all needful rules
and regulations respecting . . . property belonging to the
United States,” including federally owned public lands. U.S.
Const., Art. IV, § 3, cl. 2. Congress has long used its
authority under the Property Clause to permit the purchase of
mining rights and exploration on federal lands, most notably
in the General Mining Act of 1872, 30 U.S.C. §§ 22–54.
Under that Act, “all valuable mineral deposits in lands
belonging to the United States, both surveyed and
unsurveyed, shall be free and open to exploration and
purchase.” 30 U.S.C. § 22.
From early on, the executive branch has asserted and
exercised the authority to withdraw federally owned lands
from claims for mineral extraction. See United States v.
Midwest Oil Co., 236 U.S. 459, 469–72 (1915). As Midwest
Oil recognized, although Congress had delegated no “express
statutory authority” to withdraw previously available land
from mineral exploitation, the executive branch had made a
“multitude” of temporary such withdrawals, and Congress
had “uniformly and repeatedly acquiesced in the practice.”
Id. at 469–71. That acquiescence, Midwest Oil held,
constituted an “implied grant of power” from Congress to the
executive permitting withdrawal of public lands from mineral
14 NAT’L MINING ASS’N V. ZINKE
extraction claims. Id. at 475. For decades after Midwest Oil,
Congress did little to restrain the executive’s withdrawal
authority, and the executive branch made liberal use of it.
After World War II, however, demand for the commercial
use of public land increased considerably. To address that
increased demand, Congress in 1964 established the Public
Land Law Review Commission (“PLLRC”), composed of
several members of Congress and presidential appointees, to
conduct a comprehensive review of federal land law and
policy and propose suggestions for more efficient
administration of public lands. After several years of study
the PLLRC issued a report making 137 specific
recommendations to Congress concerning the use and
governance of public lands. PLLRC, One Third of the
Nation’s Land ix–x, 9 (1970) (hereinafter “PLLRC Report”).
The PLLRC Report observed that the roles of Congress
and the executive branch with respect to public land use had
“never been carefully defined,” and recommended that
Congress pass new legislation specifying the precise
authorities delegated to the executive for land management,
including withdrawals. Id. at 43, 44, 54–55. The Report also
recommended that “large scale limited or single use
withdrawals of a permanent or indefinite term” should be
within Congress’s exclusive control, while “[a]ll other
withdrawal authority should be expressly delegated with
statutory guidelines to insure proper justification for proposed
withdrawals, provide for public participation in their
consideration, and establish criteria for Executive action.” Id.
at 54 (emphasis added). The Report did not recommend a
legislative veto over any withdrawal authority delegated to
the executive.
NAT’L MINING ASS’N V. ZINKE 15
In response to the PLLRC’s recommendations, Congress
in 1976 enacted FLPMA. FLPMA declares as the policy of
the United States that “Congress exercise its constitutional
authority to withdraw or otherwise designate or dedicate
Federal lands for specified purposes and that Congress
delineate the extent to which the Executive may withdraw
lands without legislative action,” 43 U.S.C. § 1701(a)(4); that
“in administering public land statutes and exercising
discretionary authority granted by them, the Secretary be
required to establish comprehensive rules and regulations
after considering the views of the general public[,] and to
structure adjudication procedures to assure adequate third
party participation, objective administrative review of initial
decisions, and expeditious decisionmaking,” 43 U.S.C.
§ 1701(a)(5); that “goals and objectives be established by law
as guidelines for public land use planning, and that
management be on the basis of multiple use and sustained
yield unless otherwise specified by law,” 43 U.S.C.
§ 1701(a)(7)5; and that “the public lands be managed in a
5
“Multiple use” is defined in the statute as “the management of the
public lands and their various resource values so that they are utilized in
the combination that will best meet the present and future needs of the
American people; making the most judicious use of the land for some or
all of these resources or related services over areas large enough to
provide sufficient latitude for periodic adjustments in use to conform to
changing needs and conditions; the use of some land for less than all of
the resources; a combination of balanced and diverse resource uses that
takes into account the long-term needs of future generations for renewable
and nonrenewable resources, including, but not limited to, recreation,
range, timber, minerals, watershed, wildlife and fish, and natural scenic,
scientific and historical values; and harmonious and coordinated
management of the various resources without permanent impairment of
the productivity of the land and the quality of the environment with
consideration being given to the relative values of the resources and not
necessarily to the combination of uses that will give the greatest economic
16 NAT’L MINING ASS’N V. ZINKE
manner that will protect the quality of scientific, scenic,
historical, ecological, environmental, air and atmospheric,
water resource, and archeological values; [in a manner] that,
where appropriate, will preserve and protect certain public
lands in their natural condition; [in a manner] that will
provide food and habitat for fish and wildlife and domestic
animals; and [in a manner] that will provide for outdoor
recreation and human occupancy and use,” 43 U.S.C.
§ 1701(a)(8).
As relevant here, FLPMA eliminates the implied
executive branch withdrawal authority recognized in Midwest
Oil, and substitutes express, limited authority. See Pub. L.
94–579, § 704, Oct. 21, 1976, 90 Stat. 2743, 2792. It reserves
to Congress the power to take certain land management
actions, such as making or revoking permanent withdrawals
of tracts of 5,000 acres or more (“large-tract” withdrawals)
from mineral extraction. 43 U.S.C. § 1714(c), (j). And it
delegates to the Secretary of the Interior the power to make
withdrawals of tracts smaller than 5,000 acres (“small-tract”
withdrawals), whether temporary or permanent, 43 U.S.C.
§ 1714(d), and to make temporary withdrawals of large-tract
parcels of 5,000 acres or more, 43 U.S.C. § 1714(c).
For all withdrawals, whether small- or large-tract,
FLPMA requires that the Secretary publish notice of the
proposed withdrawal in the Federal Register; afford an
opportunity for public hearing and comment; and obtain
consent to the withdrawal from any other department or
agency involved in the administration of the lands proposed
for withdrawal. 43 U.S.C. § 1714(b), (h), (i). The statute
also bars the Secretary from further delegating his or her
return or the greatest unit output.” 43 U.S.C. § 1702(c).
NAT’L MINING ASS’N V. ZINKE 17
withdrawal authority to any individual outside the
Department of the Interior, or to any individual within the
Department who was not appointed by the President and
confirmed by the Senate. 43 U.S.C. § 1714(a).
FLPMA circumscribes the Secretary’s temporary large-
tract withdrawal authority in three ways relevant here. First,
the Secretary may make large-tract withdrawals lasting no
longer than twenty years. Second, no later than the effective
date of any withdrawal, the Secretary must furnish a detailed
report to Congress addressing twelve specific reporting
requirements.6 43 U.S.C. § 1714(c)(2). Third, FLPMA
provides that Congress retains legislative veto power over any
large-tract withdrawal.7 43 U.S.C. § 1714(c)(1). FLPMA
6
These reporting requirements include (1) a “clear explanation” of the
proposed use of the land involved; (2) an inventory and evaluation of the
current natural resource uses of the site and the impact of the proposed
use, including potential environmental degradation and anticipated
economic impact; (3) a list of present users of the land and the anticipated
impact upon those users; (4) an analysis of potential conflicts between
current users and the proposed use; (5) an analysis of the requirements for
the proposed use; (6) an analysis of suitable alternative sites; (7) a
statement of any consultation with other federal, state, and local
regulators; (8) a statement of the impact of proposed uses on state and
local government and the regional economy; (9) the time needed for the
withdrawal; (10) the time and place of public hearings; (11) the location
of publicly accessible records; and (12) the report of a qualified mining
engineer. 43 U.S.C. § 1714(c)(2).
7
Specifically, “a withdrawal aggregating five thousand acres or more
may be made (or such a withdrawal or any other withdrawal involving in
the aggregate five thousand acres or more which terminates after such date
of approval may be extended) only for a period of not more than twenty
years by the Secretary on his own motion or upon request by a department
or agency head. The Secretary shall notify both Houses of Congress of
such a withdrawal no later than its effective date and the withdrawal shall
18 NAT’L MINING ASS’N V. ZINKE
also contains a severability clause: “If any provision of this
Act or the application thereof is held invalid, the remainder
of the Act and the application thereof shall not be affected
thereby.” FLPMA § 707, 90 Stat. at 2794 (codified at notes
to 43 U.S.C. § 1701).
Congress has never exercised its authority under FLPMA
to veto a large-tract withdrawal. In 1983, the Supreme Court
in I.N.S. v. Chadha, 462 U.S. 919, 959 (1983), declared one
variety of legislative veto provision unconstitutional.8 Since
Chadha, Congress has not amended FLPMA to limit the
Secretary’s withdrawal authority further.
A. The Northern Arizona Withdrawal
Uranium, often found within “breccia pipes” — cylinder-
shaped deposits of broken sedimentary rock stretching
thousands of feet underground — was first discovered near
terminate and become ineffective at the end of ninety days (not counting
days on which the Senate or the House of Representatives has adjourned
for more than three consecutive days) beginning on the day notice of such
withdrawal has been submitted to the Senate and the House of
Representatives, if the Congress has adopted a concurrent resolution
stating that such House does not approve the withdrawal. If the committee
to which a resolution has been referred during the said ninety day period,
has not reported it at the end of thirty calendar days after its referral, it
shall be in order to either discharge the committee from further
consideration of such resolution or to discharge the committee from
consideration of any other resolution with respect to the Presidential
recommendation.” 43 U.S.C. § 1714(c)(1).
8
Chadha dealt with a one-house veto of the Attorney General’s
discretionary decision to suspend deportation. Chadha, 462 U.S. at 927.
FLPMA provides for a legislative veto by “concurrent resolution” of both
houses. 43 U.S.C. § 1714(c)(1).
NAT’L MINING ASS’N V. ZINKE 19
Grand Canyon National Park in 1947. Only limited uranium
mining occurred in Northern Arizona until uranium prices
increased in the late 1970s. After that, in the 1980s and
1990s, miners extracted 1,471,942 tons of uranium from six
new mines. A second spike in the price of uranium in 2007
generated renewed interest in mining operations near the
Grand Canyon, manifested in the submission of thousands of
new claims.9
The large volume of new claims sparked concerns about
the potential environmental impact of increased uranium
mining on the Grand Canyon watershed. Uranium mining
has been associated with uranium and arsenic contamination
in water supplies, which may affect plant and animal growth,
survival, and reproduction, and which may increase the
incidence of kidney damage and cancer in humans. See, e.g.,
National Primary Drinking Water Regulations,
Radionuclides, 65 Fed. Reg. 76,708 (Dec. 7, 2000). In
response to local concerns, Arizona Congressman Raúl
Grijalva introduced legislation in March 2008 seeking
permanently to withdraw over one million acres of federal
land abutting Grand Canyon National Park, on the northern
side (North Parcel), northeastern side (East Parcel), and
southern side (South Parcel) of the Park. Rep. Grijalva’s
proposed legislation was not enacted.
In 2009, Secretary Salazar published a Notice of Intent in
the Federal Register declaring that he proposed to withdraw
from new uranium mining claims an area nearly identical to
that covered by the Grijalva bill. Notice of Proposed
Withdrawal and Opportunity for Public Meeting, 74 Fed.
9Within a few years, the price of uranium dropped sharply once more,
from $130 per pound to $40 per pound.
20 NAT’L MINING ASS’N V. ZINKE
Reg. 35,887 (July 21, 2009). In compliance with FLPMA’s
command, the Secretary stipulated that any agency action
would be “subject to valid existing rights.” Id.; FLPMA
§ 701(h), 90 Stat. at 2786 (codified at notes to 43 U.S.C.
§ 1701). The Notice of Intent had the immediate effect of
withdrawing the land from new uranium mining claims for
two years while the agency studied the anticipated impact of
the proposed withdrawal. 74 Fed. Reg. at 35,887.
In fulfillment of the Interior’s obligation under the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4332, the Bureau of Land Management (“BLM”), an
agency within the Department of the Interior, prepared an
Environmental Impact Statement (“EIS”) examining the
potential environmental impact of the withdrawal. The EIS
declared that the underlying purpose of the withdrawal was
protecting the “Grand Canyon watershed from adverse effects
of . . . mineral exploration and mining” other than those
“stemming from valid existing rights.” 74 Fed. Reg. at
43,152–53. To inform the EIS, BLM requested a full report
from the United States Geological Survey (“USGS”)
analyzing soil, sediment, and water samples in the proposed
withdrawal area.
In response, USGS prepared Scientific Investigations
Report 2010–5025 (the “USGS Report”). To prepare its
report, USGS examined 1,014 water samples from
428 different sites. It found that 70 samples “exceeded the
primary or secondary maximum containment levels” for
certain ions and trace elements, including uranium and other
heavy metals. The agency also analyzed soil and sediment
samples from six sites north of the Grand Canyon, including
reclaimed uranium mines, approved mining sites where
mining had been suspended, and exploratory sites (sites
NAT’L MINING ASS’N V. ZINKE 21
where there had been drilling but not mining). Consistently
high concentrations of uranium and arsenic were discovered
at these sites. Water samples from fifteen springs and five
wells contained dissolved uranium levels beyond the
maximum allowed by the Environmental Protection Agency
(“EPA”) for drinking water. The USGS Report observed that
fractures, faults, sinkholes, and breccia pipes occurred
throughout the region and were potential pathways for
contaminants, including uranium and arsenic, to migrate
through groundwater. The Report acknowledged, however,
that the available data on these pathways was “sparse . . . and
often limited,” and that more investigation would be required
fully to understand groundwater flow paths and the potential
impact of uranium mining.
BLM relied heavily on the USGS Report in preparing its
EIS. It used the findings of the USGS Report, as well as
additional data gathered during its own two-year study, to
assess the risk to five different water resources. These
resources included springs and wells connected to perched
aquifers; springs and wells connected to the Redwall-Muav
aquifer (“R-aquifer”), the main deep aquifer within the Grand
Canyon watershed10; and surface waters.
BLM issued a draft EIS in February of 2011; the draft EIS
remained open for public comment for 75 days. Interior
received over 296,339 comment submittals, from which it
extracted over 1,400 substantively distinct comments. See
Notice of Availability of the Northern Arizona Proposed
Withdrawal Final Environmental Impact Statement, 76 Fed.
10The R-aquifer is the major source of groundwater within the region.
It is located roughly 2,000 feet below the surface. Perched aquifers are
generally much smaller and occur at much shallower levels.
22 NAT’L MINING ASS’N V. ZINKE
Reg. 66,747, 66,748 (Oct. 27, 2011). After reviewing these
comments, Interior submitted its final EIS on October 27,
2011.
In addition to its public comment process, Interior
designated several affected counties in Arizona and Utah
(“the Counties”) as cooperating agencies,11 and solicited their
input.12 Based in part on the Counties’ public comments on
the draft EIS, Interior requested further analysis of the
anticipated economic effect of the withdrawal and consulted
with county representatives. Interior also organized five
meetings with cooperating agencies, including the Counties,
as well as two public meetings in the region.
The final EIS and ROD discussed four different
withdrawal alternatives. Alternative A was to take no action
at all, allowing new mining claims and development to
proceed unhindered. Alternative B was to withdraw the full
tract of roughly one million acres from new mining claims.
Alternative C was to withdraw a substantially smaller tract of
roughly 650,000 acres, which would have excluded 120,000
acres in the North Parcel outside the Grand Canyon
watershed, as well as 80,000 additional acres in the North
Parcel where groundwater is believed to flow away from
11
The Counties comprised Garfield, Kane, San Juan, and Washington
Counties in Utah, and Mohave and Coconino Counties in Arizona.
12
Most of the Counties opposed the withdrawal because of its
anticipated economic consequences. Coconino County did not; its
economy depends more on tourism than mining. Although the area
proposed for withdrawal was contained entirely within Arizona, the Utah
counties’ residents have an economic interest in the decision, as they stand
to derive some income from uranium mining and ore processing.
NAT’L MINING ASS’N V. ZINKE 23
Grand Canyon National Park. Alternative D was to withdraw
an even smaller area, roughly 300,000 acres.
The USGS Report, final EIS, and ROD all acknowledged
substantial uncertainty regarding water quality and quantity
in the area, the possible impact of additional mining on
perched and deep aquifers (including the R-aquifer), and the
effect of radionuclide exposure on plants, animals, and
humans. The USGS Report, for example, recognized that
“[a] more thorough investigation of water chemistry in the
Grand Canyon region is required to better understand
groundwater flow paths, travel times, and contributions from
mining activities, particularly on the north side of the
Colorado River. The hydrologic processes that control the
distribution and mobilization of natural uranium in this
hydrogeologic setting are poorly understood.” The ROD
concluded, however, that there was sufficient data regarding
dissolved uranium concentrations in the USGS Report to
“inform a reasoned choice,” so the missing information was
not essential to its decision.
After weighing the data available, the ROD took a
measured approach. It observed that a “twenty-year
withdrawal will allow for additional data to be gathered and
more thorough investigation of groundwater flow paths,
travel times, and radionuclide contributions from mining.”
Because of the uncertainty regarding the movement of
groundwater in the region, the ROD explained, Interior could
not risk contamination of springs feeding into the Colorado
River.13 The ROD went on to explain that “the potential
impacts estimated in the EIS due to the uncertainties of
13
The Colorado River is the primary source of drinking water for over
26 million people.
24 NAT’L MINING ASS’N V. ZINKE
subsurface water movement, radionuclide migration, and
biological toxicological pathways result in low probability of
impacts, but potential high risk. The EIS indicates that the
likelihood of a serious impact may be low, but should such an
event occur, significant.”
The final EIS and ROD also stated justifications for the
withdrawal other than the risk of groundwater contamination.
The ROD noted that “mining within the sacred and traditional
places of tribal peoples may degrade the values of those lands
to the tribes that use them,” that certain tribes believe
“repeated wounding of the earth can kill their deities,” and
that “damage to traditional cultural and sacred places is
irreversible.” The ROD also observed that even if the
proposed area were withdrawn in its entirety, eleven new
mines could be developed during the twenty-year withdrawal
period under valid existing rights. Given this potential for
development of new mines, the expected rate of mining
development over the ensuing twenty years would roughly
match the rate of development at the time of the withdrawal.
Any economic impact on local communities would thus not
be severe. While recognizing that the level of mining that
would go forward in the area during the withdrawal period
itself posed a risk of harm, the ROD concluded that additional
mining presented a significant added threat to environmental
safety and could endanger wildlife and human health.
Finally, the agency stated that the “unique resources”
within Northern Arizona, including the Colorado River, the
Grand Canyon, and the “unique landscapes” of the region,
support a “cautious and careful approach.” The ROD
observed that “[w]hile the lands are withdrawn, studies can be
initiated to help shed light on many of the uncertainties
NAT’L MINING ASS’N V. ZINKE 25
identified by USGS in [the USGS Report] and by BLM in the
EIS.”
B. This Litigation
After the ROD issued, mining companies and local
governments concerned about the economic impact of the
withdrawal filed suit challenging the Secretary’s action.
These parties (collectively “Plaintiffs” or “Appellants”)14
filed four separate suits, one or more of which maintained
(1) that section 204(c)(1) of FLPMA, 43 U.S.C. § 1714,
which confers on the Secretary of the Interior the authority to
make temporary large-tract withdrawals, contains an
unconstitutional legislative veto provision not severable from
the remainder of the subsection; (2) that the Secretary’s
withdrawal was arbitrary and capricious, inconsistent with the
administrative record, or otherwise not in accordance with
FLPMA; (3) that the Secretary failed to comply with NEPA
in approving the withdrawal; (4) that the withdrawal violated
the Establishment Clause of the First Amendment; and
(5) that the United States Forest Service acted arbitrarily and
capriciously, or contrary to law, in granting its consent to the
withdrawal.
After the four cases were consolidated into a single
action, Plaintiffs moved for summary judgment on the ground
that the legislative veto provision within FLPMA was both
14
Appellants American Exploration & Mining Association
(“AEMA”) and National Mining Association are organizations
representing mining interests. Appellant Metamin Enterprises, USA, is a
mining company. Appellant Gregory Yount is an individual who owns
mining claims in the withdrawal area. Appellant Arizona Utah Local
Economic Coalition is an organization representing several local
governments.
26 NAT’L MINING ASS’N V. ZINKE
unconstitutional and not severable. As a result, Plaintiffs
argued, there was no longer any statutory basis for the
Secretary’s twenty-year large-tract withdrawal authority.
Denying the motion, the district court held the legislative veto
provision unconstitutional, but severable, leaving the
Secretary’s challenged withdrawal authority intact. Yount v.
Salazar, 933 F. Supp. 2d 1215, 1243 (D. Ariz. 2013).
After discovery, the parties all cross-moved for summary
judgment. The district court granted summary judgment to
Interior and Grand Canyon Trust, upholding the withdrawal
against each of the plaintiffs’ challenges. The evidence in the
record, particularly the USGS Report, final EIS, and ROD,
supported the agency’s withdrawal decision, the district court
concluded, and the agency did not exceed its statutory
authority under FLPMA or NEPA. The district court also
rejected the plaintiffs’ Establishment Clause challenge and
their claim that Interior’s consultation with local counties and
treatment of information gaps were inadequate under NEPA.
This appeal followed.
II. FLPMA’s Legislative Veto Provision
The Supreme Court ruled definitively in Chadha that
Congress may invalidate an agency’s exercise of lawfully
delegated power in one way only: through bicameral passage
of legislation followed by presentment to the President.
462 U.S. at 953–55. FLPMA provides that Congress may
invalidate a large-tract withdrawal announced by the
Secretary by passing a concurrent resolution disapproving of
the withdrawal within 90 days of the withdrawal’s effective
date; the statute does not require presentment to the President.
43 U.S.C. § 1714(c)(1). We have little difficulty concluding
NAT’L MINING ASS’N V. ZINKE 27
that the legislative veto provision violates the presentment
requirement, a conclusion with which all parties agree.
Unlike in Chadha, the statutory legislative veto was not
exercised by Congress in this case. Appellants maintain —
and the government does not disavow — that the severability
issue is nonetheless properly before us, as the Secretary’s
withdrawal authority is at issue, and that authority would fall
if the legislative veto were not severable from Congress’s
broader delegation of power to the executive.
Although not raised by the parties, there is an argument
that because Congress did not invoke the legislative veto, the
provision did not injure Appellants even if constitutionally
invalid, and so the Appellants lack standing to challenge
either it or the withdrawal provision’s continuing validity.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see, e.g.,
United States v. City of Yonkers, 592 F. Supp. 570, 576
(S.D.N.Y. 1984). That is, once the veto deadline passed, one
could view the situation as if there were no veto available, in
which case severability would not matter.
Nonetheless, we conclude that Appellants do have
standing to raise the severability issue. We are presented here
with an unresolvable ambiguity as to whether Congress
declined to exercise its veto based on the merits of the
Secretary’s withdrawal or based on the veto’s constitutional
infirmity. Appellants’ merits argument is that the withdrawal
authority would not exist at all without the veto provision in
place, exercised or not. Appellants’ alleged injury —
primarily, the inability to perfect new mining claims — is
traceable to the exercise of that authority, and if their merits
argument succeeded, could be redressed by invalidating the
28 NAT’L MINING ASS’N V. ZINKE
Secretary’s withdrawal authority. Chadha, 462 U.S. at 936.
We therefore turn to that merits argument.
Invalid portions of a federal statute are to be severed
“‘[u]nless it is evident that the Legislature would not have
enacted those provisions which are within its power,
independently of that which is not.’” Chadha, 462 U.S. at931–32 (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)).
“Generally speaking, when confronting a constitutional flaw
in a statute, we try to limit the solution to the problem,
severing any problematic portions while leaving the
remainder intact.” Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal
quotation marks omitted). We must retain any portion of a
statute which is (1) “constitutionally valid,” (2) “capable of
functioning independently” from any unconstitutional
provision, and (3) “consistent with Congress’ basic objectives
in enacting the statute.” United States v. Booker, 543 U.S.
220, 258–59 (2005) (citation and internal quotation marks
omitted).
This general principle applies with greater force when, as
here, the statute in question contains a severability clause.15
“[T]he inclusion of such a clause creates a presumption that
Congress did not intend the validity of the statute in question
to depend on the validity of the constitutionally offensive
provision.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686
(1987). That presumption can be overcome only by “strong
evidence” that Congress intended the entire relevant portion
15
Again, FLPMA provides that “[i]f any provision of this Act or the
application thereof is held invalid, the remainder of the Act and the
application thereof shall not be affected thereby.” FLPMA § 707, 90 Stat.
at 2794.
NAT’L MINING ASS’N V. ZINKE 29
of the statute to depend upon the unconstitutional provision.
Id.
That the offending portion of FLPMA is a legislative veto
provision further strengthens the severability presumption.
There is an obvious substitute for the legislative veto: the
ordinary process of legislation. Nothing (except the need to
muster sufficient votes) prevents Congress from revoking a
large-tract withdrawal by passing legislation vacating the
withdrawal, presenting the proposed legislation to the
President, and (if necessary) overriding the President’s veto.
Notably, none of the Appellants have cited any case holding
that a legislative veto provision could not be severed where
the statute in question contained a severability clause, nor
have we found one.16
Moreover, the language and structure of FLPMA and the
legislative history underlying the statute do not provide the
requisite “strong evidence” that the Secretary’s authority to
make large-tract withdrawals rises and falls with Congress’s
veto power over those withdrawals. To the contrary, the
16
Western States Medical Center v. Shalala, 238 F.3d 1090 (9th Cir.
2001) is not a contrary example. We noted in Western States Medical
Center that the inclusion of a severability clause in the Federal Food,
Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301–397, did not
suggest that an unconstitutional provision of a subsequent amendment to
that statute, the Food and Drug Administration Modernization Act of 1997
(“FDAMA”), 21 U.S.C. § 353a, was severable from the remainder of the
FDAMA. “Because Congress approved this severability clause before
FDAMA’s passage,” we held, “it is less compelling evidence of legislative
intent than a clause enacted simultaneously with FDAMA. Congress may
have intended the original provisions of the FDCA to be severable, but
meant for FDAMA’s provisions to stand or fall together.” W. States Med.
Ctr., 238 F.3d at 1097–98. Here, the relevant provisions of FLPMA were
enacted simultaneously with the severability clause.
30 NAT’L MINING ASS’N V. ZINKE
limited delegation of large-tract withdrawal authority is fully
“consistent with Congress’ basic objectives” in enacting
FLPMA even if there is no legislative veto option. Booker,
543 U.S. at 259.
First, Congress in FLPMA imposed significant limitations
on the Secretary’s withdrawal authority and provided for
congressional oversight over executive withdrawals by means
other than the legislative veto. For example, Congress
reserved to itself the exclusive authority to make permanent
large-tract withdrawals, limiting the Secretary’s large-tract
withdrawals to no more than twenty years. 43 U.S.C.
§ 1714(c)(1). Although large-tract withdrawals can be
renewed after the twenty-year term expires, the twenty-year
term ensures that the renewal decision would necessarily have
to be made by a different presidential administration and,
almost surely, a different Secretary of the Interior.
Congress in FLPMA also limited the Secretary’s power
to delegate withdrawal authority to subordinates, restricting
that delegation to officers appointed by the President and
confirmed by the Senate. 43 U.S.C. § 1714(a). And for
large-tract withdrawals, FLPMA requires not only that the
Secretary provide timely notice to Congress (enabling
Congress to address the proposed withdrawal legislatively if
it so chooses), but mandates that the Secretary issue a detailed
report addressing twelve specific issues of concern.
43 U.S.C. § 1714(c)(2).17 The statute also delineates specific
requirements for public hearings concerning proposed
withdrawals and requires publication in the Federal Register
17
See supra note 6.
NAT’L MINING ASS’N V. ZINKE 31
of such proposals. 43 U.S.C. § 1714(b), (h).18 The plethora
of constraints on the Secretary’s large-tract withdrawal
authority — all of which remain in place — confirms that the
legislative veto provision was only one of many provisions
enacted to advance Congress’s broad oversight of the
Secretary’s withdrawal decisions. Severing the legislative
veto provision would leave the remaining limitations, and
opportunity for congressional oversight and involvement, in
place.
The legislative history underlying FLPMA confirms this
conclusion. As the district court observed, the PLLRC
Report, on which Congress relied in passing FLPMA, was
“equally concerned with enabling the Executive to act
through controlled delegation as it was with preserving
Congress’s reserved powers.” Yount, 933 F. Supp. 2d at
1223. For example, the Report recommended, without
mention of a legislative veto, that Congress “delineat[e]
specific delegation of authority to the Executive as to the
types of withdrawals and set asides that may be effected
without legislative action.” PLLRC Report, at 2. And the
Report recommended that all withdrawal authority other than
18
Regarding public hearings, FLPMA provides that “[a]ll new
withdrawals made by the Secretary under this section (except an
emergency withdrawal . . . ) shall be promulgated after an opportunity for
a public hearing.” 43 U.S.C. § 1714(h). Regarding publication, FLPMA
provides that “[w]ithin thirty days of receipt of an application for
withdrawal, and whenever he proposes a withdrawal on his own motion,
the Secretary shall publish a notice in the Federal Register stating that the
application has been submitted for filing or the proposal has been made
and the extent to which the land is to be segregated while the application
is being considered by the Secretary. . . . The segregative effect of the
application shall terminate upon (a) rejection of the application by the
Secretary, (b) withdrawal of lands by the Secretary, or (c) the expiration
of two years from the date of the notice.” 43 U.S.C. § 1714(b)(1).
32 NAT’L MINING ASS’N V. ZINKE
“large scale limited or single use withdrawals of a permanent
or indefinite term” be “expressly delegated.” Id. at 55.
Similarly, the House Report identified among the primary
objectives of the legislation both establishing “procedures to
facilitate Congressional oversight of public land operations
entrusted to the Secretary of the Interior,” and endowing
BLM with “sufficient authority to enable it to carry out the
goals and objectives established by law for the public lands
under its jurisdiction.” H.R. Rep. 94-1163, at 2 (1976). The
House Report discussed the legislative veto only in the
context of several other mechanisms for congressional
oversight and limitations on the Secretary’s authority: the
notice and reporting requirements, the limits on delegation,
the consent requirement, the hearing requirement, and the
temporal limitation. Id. at 9–10.
Nor does the Conference Report suggest that the
legislative veto was an essential component of the legislation.
That Report referenced the legislative veto only in the context
of delineating where the House bill (ultimately adopted)
diverged from the Senate bill.19 And although several
Members of Congress emphasized in their floor statements
the importance of the bill’s oversight provisions during the
floor debates,20 many other members, including several who
19
The Senate bill did not include a legislative veto. See H.R. Rep.
No. 94-1724, at 57 (1976) (Conf. Rep.), 1976 U.S.C.C.A.N. 6227, 6229.
20
Rep. Samuel Steiger stated that “[t]here were those of us — and I
include myself — who felt that the Secretary should have the opportunity
of making no withdrawals without the review of Congress,” and that
granting small-tract withdrawal authority “already represent[s] a very
strong compromise.” 122 Cong. Rec. 23,451 (1976). Rep. Joe Skubitz
stated that it was essential that Congress “be . . . able to oppose[,] if
NAT’L MINING ASS’N V. ZINKE 33
voted for the legislation, expected the legislative veto to
prove overly burdensome for Congress.21
At best, the legislative history of FLPMA is inconclusive
as to whether a majority of the House would have opposed
delegating large-tract withdrawal authority without the
legislative veto. As with most legislation, FLPMA’s
legislative veto provision represented a compromise between
groups of lawmakers with divergent and sometimes
competing interests. It is possible — perhaps even likely —
that had Congress known in 1976 that the legislative veto
provision was unconstitutional, a somewhat different
legislative bargain would have been struck. Congress might,
for example, have shortened the twenty-year term for
necessary, withdrawals which it determines not to be in the best interests
of all the people.” Id. at 23,437. Rep. John Melcher, the chief sponsor of
the legislation in the House, stated that the veto was a component of the
bill’s general objective of adding “congressional oversight responsibility”
to land management. Id. at 23,452. He stated that “[s]ince there is now
no system of congressional review and congressional oversight of
withdrawals, [the legislative veto provision] is the first positive step that
Congress has taken to . . . exercise that responsibility.” Id. But Rep.
Melcher also opined on the House floor, somewhat in contradiction, that
the bill would “not in any way limit or interfere with” the Secretary’s
authority to make withdrawals. Id. at 23,453.
21
Rep. John Seiberling called the congressional oversight provisions
“[some] of the most objectionable provisions in the legislation.”
122 Cong. Rec. 23,436. Rep. Patsy Mink opposed several of the
limitations on the Secretary’s withdrawal discretion, believing, as Rep.
Seiberling did, that the legislation would place an unworkable burden on
both Congress and the Department of the Interior. Id. at 23,438. The
Conference Report adopted the House’s version of the bill with respect to
the Secretary’s withdrawal authority but barely discussed the legislative
veto. H.R. Rep. No. 94-1724.
34 NAT’L MINING ASS’N V. ZINKE
temporary withdrawals, or decreased the acreage required to
trigger FLPMA’s large-tract withdrawal provisions.
But the question before us is not whether Congress would
have drafted the statute differently in the absence of the
unconstitutional provision. The question is whether “the
statute’s text or historical context makes it evident that
Congress . . . would have preferred no statute at all.” Hamad.
v. Gates, 732 F.3d 990, 1001 (9th Cir. 2013) (internal
quotation marks omitted); see Free Enter. Fund, 561 U.S. at
481; Alaska Airlines, 480 U.S. at 685–86. Given the
recognized desire for executive authority over withdrawals of
federal lands from new mining claims — and given
Congress’s preference regarding survival of that authority, as
expressed in the severability clause — there is no indication,
let alone “strong evidence,” Alaska Airlines, 480 U.S. at 686,
that Congress would have preferred “no statute at all” to a
version with the legislative veto provision severed. As in
Chadha, “[a]lthough it may be that Congress was reluctant to
delegate final authority . . . , such reluctance is not sufficient
to overcome the presumption of severability raised by [a
severability clause].” 462 U.S. at 932.
Notably, given FLPMA’s notice and report provision,
Congress has the opportunity to pass timely and informed
legislation reversing any withdrawal — legislation that would
then be submitted for presidential approval (or veto, followed
by a potential override). Since the passage of FLPMA, the
Secretary has exercised large-tract withdrawal authority
82 times without Congress ever attempting to override that
NAT’L MINING ASS’N V. ZINKE 35
authority.22 See Interior-SER 637–38. Nor, since Chadha
was decided more than three decades ago, has Congress
amended the relevant section of the statute to enhance
congressional oversight or limit the Secretary’s withdrawal
authority. That history further undermines the Appellants’
contention that the legislative veto was an essential and
indispensable component of FLPMA without which Congress
would never have delegated large-tract withdrawal authority.
Appellants make one final, technical argument in support
of severability: They observe that the legislative veto
provision is contained entirely within the subsection of the
statute delegating large-tract withdrawal authority to the
Secretary, section 204(c)(1) of FLPMA. Appellants propose
that the legislative veto and the delegation of large-tract
withdrawal authority are therefore part of the same
“provision.” As the statute’s severability clause mandates
severance of any unconstitutional “provision,” Appellants
contend, the entirety of section 204(c)(1) must be severed.
Not so.
There is no support for the proposition that a statutory
subsection, like section 204(c)(1), is the smallest unit that can
be characterized as a “provision” subject to a severability
clause. And no reason occurs to us why a sentence within a
subsection is not a “provision” of the statute. See Black’s
Law Dictionary 1420 (10th ed. 2014) (defining “provision”
22
See, e.g., California: Withdrawal for New Melones Dam and
Reservoir Project, 44 Fed. Reg. 70,467 (Dec. 7, 1979); Certain Lands in
Alaska: Public Land Order Withdrawals, 45 Fed. Reg. 9,562 (Feb. 12,
1980); New Mexico: Withdrawal of Lands, 45 Fed. Reg. 29,295 (May 2,
1980); Idaho: Withdrawal of Snake River Birds of Prey Area, 45 Fed.
Reg. 78,688 (Nov. 26, 1980); Oregon: Withdrawal of Lands for Diamond
Craters Geologic Area, 46 Fed. Reg. 6,947 (Jan. 22, 1981).
36 NAT’L MINING ASS’N V. ZINKE
as “clause”). Indeed, courts have severed legislative vetoes
within single sentences. See Alabama Power Co. v. U.S.
Dep’t of Energy, 307 F.3d 1300, 1306–08 (11th Cir. 2002)
(severing a dependent clause containing a legislative veto
from a statutory subsection because that clause was an
unconstitutional “provision”). Were we to accept Appellants’
argument, the result would be to require courts to sever more
of a statute that contains a severability clause referring to a
“provision” than one that does not. Absent a clear command,
we cannot imagine that Congress intended such a peculiar
result.
We therefore hold that the unconstitutional legislative
veto embedded in section 204(c)(1) of FLPMA 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.
III. FLPMA
A. Appellants’ FLPMA Claims
We turn next to the merits of the FLPMA claims. We
review challenges to agency actions such as those here under
the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
Under the APA, a reviewing court may set aside only agency
actions that are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law.” 5 U.S.C.
§ 706(2)(A). “This standard of review is “highly deferential,
presuming the agency action to be valid and affirming the
agency action if a reasonable basis exists for its decision.”
Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv.,
475 F.3d 1136, 1140 (9th Cir. 2007) (internal quotation marks
NAT’L MINING ASS’N V. ZINKE 37
omitted). A court may not “substitute its judgment for that of
the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99, 105 (1977), and an
agency’s interpretation of its organic statute, as well as of its
own regulations, is entitled to deference. Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844
(1984); Auer v. Robbins, 519 U.S. 452, 461–63 (1997).
The ROD listed four rationales for the withdrawal: (1) It
would protect water resources in the Grand Canyon
watershed and the Colorado River from possible
contamination; (2) it would preserve cultural and tribal
resources throughout the withdrawn area; (3) it would protect
natural resources, including wildlife and wilderness areas;
and (4) because existing claims could still be mined, the
economic benefits of uranium mining could still be realized
by local communities. Appellants challenge each of the
Secretary’s rationales for the withdrawal,23 but focus on the
first. Appellants contend that the final EIS and ROD
exaggerated the risk of water contamination from uranium
mining in the affected area, and that the administrative record
23
AEMA maintains that the Secretary was precluded from proposing
any additional rationales for the withdrawal in the ROD beyond the
primary justification stated in BLM’s 2009 application for the withdrawal
— the potential threat to groundwater in the Grand Canyon watershed.
AEMA contends that the additional justifications rendered the Secretary’s
decision arbitrary and capricious because they allegedly violated
regulations “requir[ing] the Secretary to make a determination based on
the application for withdrawal.” But nothing in FLPMA or its
implementing regulations requires that the scope of the ROD be limited
to the purposes stated in the initial application for the withdrawal. Indeed,
it would defeat the very purpose of allowing public comment on a
proposed withdrawal if the Secretary were unable to incorporate new
evidence or concerns raised by commenters into his decisionmaking.
38 NAT’L MINING ASS’N V. ZINKE
suggests that existing laws and regulations were sufficient to
achieve the aim of water protection.
1. Potential Impact on Water Resources
The crux of Appellants’ FLPMA argument is that the
scientific evidence in the record does not justify the
Secretary’s decision to withdraw this large tract of land to
protect water resources. In support, Appellants characterize
several segments of the final EIS, ROD, and administrative
record as indicating that the risk of groundwater
contamination from uranium mining was low and the
scientific rationale for the withdrawal weak.
Congress defined the Secretary’s “withdrawal” power as
the power to withhold federal lands from mining or
settlement, “in order to maintain other public values in the
area or reserv[e] the area for a particular public purpose or
program.” 43 U.S.C. § 1702(j). The terms “public values”
and “public purpose” are not defined in the statute.
Congress’s stated objectives in enacting FLPMA provide
clues to the meaning of those words. Congress’s objectives
included ensuring that “the public lands [would] be managed
in a manner that [would] protect the quality of scientific,
scenic, historical, ecological, environmental, air and
atmospheric, water resource, and archeological values; that,
where appropriate, [would] preserve and protect certain
public lands in their natural condition; that [would] provide
food and habitat for fish and wildlife and domestic animals;
and that [would] provide for outdoor recreation and human
occupancy and use.” 43 U.S.C. § 1701(a)(8). That broad
NAT’L MINING ASS’N V. ZINKE 39
language encompasses the Secretary’s justifications for the
withdrawal here challenged.24
The USGS Report and the final EIS establish that Interior
did have evidence that additional uranium mining could
present a risk of contamination. The USGS Report analyzed
over 1,000 water samples from 428 different locations within
the region, and found that 70 sites exceeded the EPA’s
primary or secondary heavy metal contaminant levels.
Samples from fifteen springs and five wells indicated
uranium concentrations exceeding the EPA’s maximum
contaminant levels. The USGS Report acknowledged that the
evidence was “inconclusive” regarding a connection between
those findings and mining activity, but could not rule out such
a connection.
The final EIS and ROD further indicate that the full-
withdrawal alternative was expected to reduce substantially
the potential environmental impact from continued mining
operations. The final EIS concluded that under Alternative A
(“no action”) the projected water quality impact to R-aquifer
24
Metamin contends that “FLPMA limits the Secretary’s authority to
withdraw lands to instances when the proposed use will cause
environmental degradation or where existing and potential uses are
incompatible with or [in] conflict with the proposed use” (emphases
added). The section of the statute Metamin cites concerns the
requirements for the Secretary’s report to Congress, not the basis of the
Secretary’s authority to make a withdrawal. See 43 U.S.C. § 1714(c)(2).
The contents of the Secretary’s report to Congress are not subject to
judicial review. See FLPMA § 701(i), 90 Stat. at 2786 (codified at notes
to 43 U.S.C. § 1701). Moreover, the section says “might” cause
environmental degradation, not “will.” 43 U.S.C. § 1714(c)(2)(2).
Metamin’s argument thus rests on a misapplication, a misreading, and, in
part, an erroneous paraphrasing of the statute. Uses can undoubtedly be
incompatible based on risk of harm rather than the certainty of it.
40 NAT’L MINING ASS’N V. ZINKE
springs was “none to moderate” in the entirety of the North
Parcel and East Parcel, and “none to major” for part of the
South Parcel; the anticipated impact was “none to negligible”
only for two springs in the South Parcel. The potential
impact on surface water quality was assessed as at least
“negligible to moderate” in all three parcels under Alternative
A. Under Alternative B (the full withdrawal), the final EIS
assessed the risk to water quality as “negligible to moderate”
only for surface waters in the North Parcel, and “none to
major” only for R-aquifer wells in the South Parcel.
The final EIS, the USGS Report, and the ROD
acknowledge considerable uncertainty regarding whether and
how mining contributes to groundwater contamination in the
Grand Canyon watershed. The USGS Report, for example,
found that “[t]he hydrologic processes that control the
distribution and mobilization of natural uranium in this
hydrogeologic setting are poorly understood,” and that
available information regarding any correlation between
mining and groundwater contamination was “limited and
inconclusive.” Both the final EIS and the ROD recognized
that the risk to water quality in the R-aquifer was likely low,
but that significant uncertainty existed regarding travel times
and hydrogeologic conditions within particular breccia pipes.
In both documents, Interior observed that the Bureau would
benefit from continued study, which a temporary withdrawal
would allow.
But after acknowledging the uncertainties and need for
further study, the ROD concluded that unfettered mining
presented a small but significant risk of dangerous
groundwater contamination — a risk that would be
substantially mitigated by the withdrawal. The final EIS
supports this conclusion.
NAT’L MINING ASS’N V. ZINKE 41
Some analysts within the Department of the Interior
disagreed. They believed the scientific data presented in the
EIS insufficient to justify the withdrawal.25 But the existence
of internal disagreements regarding the potential risk of
contamination does not render the agency’s ultimate decision
arbitrary and capricious. Scientific conclusions reached by
the agency need not reflect the unanimous opinion of its
experts. “[A] diversity of opinion by local or lower-level
agency representatives will not preclude the agency from
reaching a contrary decision, so long as the decision is not
arbitrary and capricious and is otherwise supported by the
record.” WildEarth Guardians v. Nat’l Park Serv., 703 F.3d
1178, 1186–87 (10th Cir. 2013); see also Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 658–59 (2007).
Again, we must uphold the agency’s choice so long as it
is “supported by reasoned analysis.” Ecology Ctr. v.
Castaneda, 574 F.3d 652, 665 (9th Cir. 2009). The record
demonstrates that the Secretary conducted a carefully
reasoned analysis, considered the available scientific data,
weighed diverse opinions from Interior experts and public
commenters, recognized the limitations of the available
scientific evidence, and concluded that a cautious approach
was necessary to forestall even a low probability of
contamination in excess of EPA thresholds — thresholds
developed in response to serious concerns about human
health. See 65 Fed. Reg. 76,708. The Secretary stressed that
25
In particular, some BLM employees expressed skepticism about
withdrawal of the 120,000 acres outside the Grand Canyon watershed.
One analyst stated via email that he “ha[d] not seen any written criteria
which justif[y] the withdrawal” for that portion of the tract. Another
observed that large areas within the North Parcel “have low resource
value” and recommended that the agency consider excepting them from
the withdrawal.
42 NAT’L MINING ASS’N V. ZINKE
the withdrawal was not permanent, affording the opportunity
to collect additional data about the hydraulic patterns in the
area and the impact of uranium mines on water resources.
We cannot say that the withdrawal decision was arbitrary,
capricious, or not in accordance with the law.
2. Cultural and Tribal Resources
Appellants next contend that the Secretary lacked the
authority to withdraw such a large tract of land for the
purpose of protecting cultural or tribal resources, and that
even if it had the authority, it acted arbitrarily and
capriciously in exercising it. We do not agree with either
proposition.
FLPMA permits the Secretary to premise a withdrawal of
public lands from new mining claims on the protection of
cultural and tribal resources. The congressional policy
statement included in FLPMA contemplates that Interior will
manage public lands in part for the protection of “historical”
and “archaeological” values. 43 U.S.C. § 1701(a)(8).
Consistent with that mandate, Interior’s regulations require
that an EIS, prepared in compliance with NEPA, include a
full report on “the identification of cultural resources”
possibly impacted by agency action. 43 C.F.R. § 2310.3-
2(b)(3)(I).
Appellants argue that the withdrawal was overbroad
because it was not “based on particular sites or sacred areas,”
but rather covers a large tract of federal land that includes
multiple sites. But the final EIS explained that the withdrawn
area as a whole is of profound significance and importance to
Native American tribes. The entirety of the North and East
Parcels falls within the traditional territory of the Southern
NAT’L MINING ASS’N V. ZINKE 43
Paiute, while the Southern Parcel is a traditional use area for
the Navajo, the Hopi, the Hualapai and the Havasupai tribes.
Many tribes, including the Hopi, view the whole territory as
sacred and regard any drilling and mining as inflicting
irreparable harm. Moreover, the final EIS also identified a
host of specific sites, trails, hunting areas, springs, and camps
which are of traditional importance to several tribes and are
cultural and archeological treasures in their own right.
Nothing in FLPMA or our case law indicates that the
Secretary may not withdraw large tracts of land in the interest
of preserving cultural and tribal resources. Nor is there any
reason to believe that a withdrawal must be restricted to
narrow carveouts tracing the perimeter of discrete cultural
and historical sites, as opposed to a larger area containing
multiple such sites.26 Courts have previously upheld large-
26
Metamin and AEMA contend that the Secretary’s independent
decision to withdraw large tracts of federal lands from mining based in
part on the protection of tribal resources essentially grants the tribes veto
power over mining on traditional tribal lands. That argument rests on an
erroneous reading of our case law. Metamin cites a line of cases in which
we have held that Native American tribes could not block a federal
agency’s approval of mining or other commercial activities on large tracts
of particular cultural or religious value to the tribes. See S. Fork Band
Council of W. Shoshone Indians of Nev. v. U.S. Dep’t of the Interior,
588 F.3d 718, 724 (9th Cir. 2009); Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058, 1070–74 (9th Cir. 2008) (en banc); Havasupai Tribe v.
United States, 752 F. Supp. 1471, 1484–86 (D. Ariz. 1990), aff’d sub nom.
Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991). Those cases
hold that federal agencies are not compelled to withdraw large tracts of
public land from particular uses because of the potential impact on tribal
resources. Nothing in our case law suggests that an agency is barred from
doing so based on its own judgment. To the contrary, those cases reaffirm
the federal government’s right to make what it deems to be appropriate use
of its land. See Navajo Nation, 535 F.3d at 1072 (citing Lyng v. Nw.
Indian Cemetery Protective Ass’n, 485 U.S. 439, 451–53 (1988)).
44 NAT’L MINING ASS’N V. ZINKE
tract withdrawals justified in part by the protection of tribal
resources and “areas of traditional religious importance to
Native Americans.” See, e.g., Mount Royal Joint Venture v.
Kempthorne, 477 F.3d 745, 752 (D.C. Cir. 2007).
3. Other Resources
Appellants also challenge the Secretary’s third reason for
the withdrawal: to protect “other resources,” including visual
resources and wildlife. This challenge fails as well.
The record supports the conclusion that there would be a
significant impact on visual resources and a risk of significant
harm to wildlife absent the withdrawal. The final EIS
concluded that if new mining claims proliferated, the impact
on visual resources would range from minor to major,
depending on the area, but would likely be “moderate”
overall. The ROD found that mining-related emissions, dust,
and haze would be dramatically higher absent the withdrawal,
with a consequent risk to air quality and visibility. Although
some of the effects of increased uranium mining — such as
the effects of increased levels of radionuclides on wildlife —
were unknown or difficult to project, the final EIS concluded
that the relative impact of mining on wildlife would be
“significantly less” if the proposed area were withdrawn.
Fewer roads and power lines would be built, and trucking
would be significantly decreased. And the final EIS
explained that even a minimal degree of water contamination
could have considerable impact on aquatic species.
4. Economic Benefits
Appellants propose that Interior violated both FLPMA
and NEPA by miscalculating the amount of uranium in the
NAT’L MINING ASS’N V. ZINKE 45
withdrawn area and thus failed accurately to weigh the
economic impact of the withdrawal. Specifically, Appellants
argue that the USGS Report used outdated information from
a 1990 USGS study, and that BLM failed to account for
“hidden” breccia pipes (pipes not exposed above ground) in
its analysis of the economic impact of precluding new mining
claims. Appellants proffer their own analyses of the quantity
of uranium in the withdrawn area, which they project to be
five times larger than the USGS Report’s estimate of 162,964
tons. These challenges fail for several reasons.
First, Appellants offer no basis for concluding that the
methodology of the 1990 Report was unsound. Further, the
2010 USGS Report did not in fact incorporate the 1990
Report wholesale. It incorporated some of the findings of the
1990 Report, but made several adjustments and recalculations
in a peer-reviewed update. The 2010 Report also relied on
several peer-reviewed papers published before and after the
1990 Report, including one authored by an expert, Karen
Wenrich, who opposed the withdrawal.
Additionally, BLM reviewed and reasonably responded
to Appellants’ proposed alternative calculations, made in
comments on the proposed withdrawal. The agency
concluded that the alternative proposals had not been
sufficiently developed or peer-reviewed and so declined to
accord them significant weight. With regard to Appellants’
contention that BLM failed to account for “hidden” breccia
pipes in its economic analysis, BLM stated in response to
NMA’s public comments that those pipes were in fact
incorporated into BLM’s numerical estimates.
In sum, the agency’s findings regarding the quantity of
uranium in the withdrawn area were not arbitrary or
46 NAT’L MINING ASS’N V. ZINKE
capricious, as the agency relied on peer-reviewed data and
reasonably explained why it did not adopt Appellants’
alternative version.
B. Boundaries
Opening up another front, Appellants maintain that two
subsections of the withdrawn area — roughly 120,000 acres
in the western section of the North Parcel, which are part of
the Virgin River watershed rather than the Grand Canyon
watershed, and an additional 80,000 acres in the northeast
section of the North Parcel, where groundwater is believed to
flow away from the Colorado River and Grand Canyon
National Park — should not have been included even if the
withdrawal was otherwise proper (which, of course, they
dispute). Observing that the withdrawn area has essentially
the same boundaries included in Rep. Grijalva’s unsuccessful
legislation, Appellants contend that the Secretary did not
make an independent determination that withdrawal of those
discrete areas was merited. Inclusion of those 200,000 acres,
Appellants maintain, is inconsistent with both (1) the stated
purpose of the withdrawal as expressed in the BLM’s 2009
application for the withdrawal (to protect “the Grand Canyon
watershed”), and (2) the guidance of Interior manuals
directing that withdrawals “be kept to a minimum consistent
with the demonstrated needs of the applicants.”27 Department
of the Interior, 603 DM 1.1(A) (Aug. 1, 2005).
The principal flaw in this partial challenge is that
protection of the Grand Canyon watershed was not the only
27
We note that Interior’s manuals do not carry the force of law and
are not binding. McMaster v. United States, 731 F.3d 881, 888–89 (9th
Cir. 2013).
NAT’L MINING ASS’N V. ZINKE 47
basis for the withdrawal. As the district court noted, the three
other bases for the withdrawal are fully applicable to the
disputed 200,000 acres. In particular, in including the North
Parcel in the withdrawal area, Interior relied not just on water
or air contamination, but also on the anticipated impact
mining would have on wildlife, cultural, tribal, and visual
resources.
For example, BLM observed in the final EIS that the “no
action” alternative could increase wildlife mortality and
reduce viability — particularly across the North Parcel — due
to “noise and visual intrusions,” the development of new
roads and power lines, and “chemical and radiation hazards.”
The final EIS also observed that several tribes considered
some or all of the North Parcel an ancestral homeland with
significant cultural value. The entire North Parcel overlaps
with Southern Paiute band territories, which, according to a
University of Arizona ethnographic report commissioned by
Grand Canyon National Park and cited in the final EIS,
“remain important in the cultural life and history of Southern
Paiute tribes.”
Alternative C would not have withdrawn areas “with
isolated or low concentrations of [biological] resources” that
could be adversely affected by mineral exploration and
development, such as the area outside the Grand Canyon
watershed. But the final EIS considered and rejected
Alternative C because it still risked a number of adverse
consequences. Interior anticipated a harmful impact to
wildlife under Alternative C — though of a lesser magnitude
— as well as a “very high” potential for disturbance “of
places of cultural importance to American Indians within the
48 NAT’L MINING ASS’N V. ZINKE
North Parcel.”28 Full withdrawal had “the greatest potential
of all alternatives . . . to not change the existing wilderness
characteristics.”
The upshot is that arguments concerning the disputed
200,000 acres (and Alternative C) are myopically — and, so,
incorrectly — focused solely on an asserted disconnect
between that area and the Grand Canyon watershed. The
Department of the Interior’s assigned role is administering
public lands in a manner “that will protect the quality of
scientific, scenic, historical, ecological, environmental, air
and atmospheric, water resource, and archeological values.”
43 U.S.C. § 1701(a)(8). That responsibility goes well beyond
particular groundwater areas or watersheds. The Secretary
appropriately included the full North Parcel in the withdrawal
area after considering all relevant environmental and cultural
impacts. The decision to do so was not arbitrary and
capricious.
Importantly, we note also that although Interior’s analysts
concluded that the hydrological basis for withdrawing the
disputed 200,000 acres was not especially strong, they also
observed that, within that acreage, underground fault zones
conveyed some groundwater “south toward the Grand
Canyon.”29 Interior’s cautious assessment of the possible
28
The northeast and west portions of the North Parcel include several
specific sites of cultural significance identified in the final EIS, albeit
fewer than the rest of the North Parcel.
29
For example, a National Parks Service hydrologist, Larry Martin,
stated in an internal email that “[t]he [draft EIS] goes to great lengths in
an attempt to establish impacts to water resources from uranium mining.
It fails to do so, but instead creates enough confusion and obfuscation of
hydrogeologic principles to create the illusion that there could be adverse
NAT’L MINING ASS’N V. ZINKE 49
impact of any groundwater contamination in the North Parcel
reflected the agency’s recognition that the hydrology of the
North Parcel was not particularly well studied or understood.
C. Multiple-Use Mandates
Somewhat opaquely, Appellants raise yet another
challenge to the Secretary’s withdrawal decision — that it
contravened the principle that land management under
FLPMA “be on the basis of multiple use and sustained yield.”
43 U.S.C. § 1701(a)(7). This argument lacks merit.
FLPMA defines “multiple use” as “the management of
the public lands and their various resource values so that they
are utilized in the combination that will best meet the present
and future needs of the American people,” and specifically
contemplates “the use of some land for less than all of the
resources” and the long-term preservation of “natural scenic,
scientific and historical values.” 43 U.S.C. § 1702(c).
Accordingly, FLPMA cautions the Secretary to give
consideration to “the relative values of the resources and not
necessarily to the combination of uses that will give the
greatest economic return or the greatest unit output.” Id.As the Supreme Court has observed, “multiple use” is a
“deceptively simple term that describes the enormously
complicated task of striking a balance among the many
competing uses to which land can be put.” Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 58 (2004). It does not, as
impacts if uranium mining occurred.” Martin’s manager, Bill Jackson,
observed that “the hard science doesn’t strongly support a policy
position,” but also observed that the prevailing uncertainty as to the risk
of contamination was itself a possible reason for withdrawal.
50 NAT’L MINING ASS’N V. ZINKE
Appellants suggest, require the agency to promote one use
above others. Nor does it preclude the agency from taking a
cautious approach to assure preservation of natural and
cultural resources. The agency must weigh competing
interests and, where necessary, make judgments about
incompatible uses; a particular parcel need not be put to all
feasible uses or to any particular use. See New Mexico ex rel.
Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 710
(10th Cir. 2009). Consequently, the principle of multiple use
confers broad discretion on an implementing agency to
evaluate the potential economic benefits of mining against the
long-term preservation of valuable natural, cultural, or scenic
resources.
Here, Interior engaged in a careful and reasoned
balancing of the potential economic benefits of additional
mining against the possible risks to environmental and
cultural resources. This approach was fully consonant with
the multiple-use principle.
D. Sufficiency of Existing Laws and Regulations
Launching yet another line of attack, Metamin and
AEMA maintain that the Interior did not adequately consider
whether existing laws and regulations were sufficient to
protect the resources identified in the ROD, undermining the
justification for the withdrawal. Alternatively, and to some
degree in contradiction, Metamin and AEMA represent that
Interior found existing laws and regulations sufficient but did
not draw the proper conclusion — that withdrawal was
unjustified. Neither argument is persuasive.
The final EIS repeatedly acknowledged that some
applicable laws and regulations mitigate the impact of
NAT’L MINING ASS’N V. ZINKE 51
uranium mining on environmental, cultural, and visual
resources, as well as wildlife and human health. But the final
EIS does not suggest that simply enforcing existing laws and
regulations would suffice to meet the purposes of the
withdrawal.
For example, the final EIS examined the relative impacts
of Alternative A (wherein the agency would take no action
and existing laws and regulations would be left in place) and
Alternative B (the full withdrawal) at great length. The final
EIS concluded that the potential negative impact on water
resources would be significantly greater under Alternative A,
a comparison that expressly accounted for the applicable
regulatory schemes. With respect to cultural and tribal
resources, the final EIS concluded that (1) under the existing
regulatory regimes, “it may not be possible to reduce all such
adverse effects in the long term, especially impacts to the
character, association and feeling of the setting”;
(2) mitigation of the expected damage to tribal resources, in
particular, “may be difficult or impossible in many cases”;
and (3) “the preferred mitigation method is avoidance.”
Limiting the withdrawal to 600,000 acres — still a sizeable
area — would, the final EIS concluded, have resulted in a
“very high” impact on cultural and tribal resources. With
respect to wildlife and visual resources, the final EIS’s
comparison of Alternatives A and B demonstrated that the
existing regulatory scheme would be “significantly” less
effective without the withdrawal, and that taking no action
would result in a moderate impact on those resources.
In short, the final EIS did take existing legal regimes into
account but reasonably concluded that they were inadequate
to meet the purposes of the withdrawal.
52 NAT’L MINING ASS’N V. ZINKE
IV. The Establishment Clause
Appellant Gregory Yount alone challenges the Secretary’s
withdrawal as violating the Establishment Clause of the First
Amendment.
The Secretary observed in the ROD that uranium mining
“within the sacred and traditional places of tribal peoples may
degrade the values of those lands to the tribes that use them.”
According to Yount, precluding new mining claims on
federal land out of concern that the area has sacred meaning
to Indian tribes violates the Establishment Clause.
In general, state action does not violate the Establishment
Clause if it (1) has a secular purpose, (2) does not have a
principal or primary effect of advancing or inhibiting religion,
and (3) does not foster excessive government entanglement
with religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13
(1971). The withdrawal easily satisfies this test.
Preservation of “cultural and tribal resources” was one of
four rationales for the withdrawal identified in the ROD. And
although some of the tribal resources in question had sacred
meaning and uses for tribe members, many did not. The final
EIS identified “sacred sites” as just one of several varieties of
important tribal resources: others included “tribal homelands,
places of traditional importance, traditional use areas, trails,
springs and waterways.” Accordingly, as just part of four
reasons for action, preserving tribes’ religious use of disputed
lands was neither a motivating purpose for nor a principal or
primary effect of the withdrawal.
Furthermore, preservation of areas of cultural or historic
value area may constitute a “secular purpose” justifying state
NAT’L MINING ASS’N V. ZINKE 53
action even if the area’s significance has, in part, a religious
connection. See Access Fund v. U.S. Dep’t of Agric.,
499 F.3d 1036, 1043–44 (9th Cir. 2007). California’s
missions, Alaska’s Russian-era Orthodox churches, and
Ancient Hawaii’s heiau carried religious significance to those
who built them, and may carry religious connotations to some
of those who visit today. So, too, “the National Cathedral in
Washington, D.C.; the Touro Synagogue, America’s oldest
standing synagogue, dedicated in 1763; and [the] numerous
churches that played a pivotal role in the Civil Rights
Movement, including the Sixteenth Street Baptist Church in
Birmingham, Alabama.” Cholla Ready Mix, Inc. v. Civish,
382 F.3d 969, 976 (9th Cir. 2004). “[B]ecause of the central
role of religion in human societies, many historical treasures
are or were sites of religious worship.” Id. But that does not
negate the value of these sites as a part of our secular cultural
inheritance. The American Indian sacred land at issue here
is no different.30 Access Fund, 499 F.3d at 1044–45; Cholla
Ready Mix, 382 F.3d at 976. For that reason as well, the
withdrawal had a secular purpose and did not have as a
primary effect advancing religion.
Finally, there is no colorable contention that the
Secretary’s withdrawal fosters “excessive government
30
Yount’s reliance on Lyng v. Northwest Indian Cemetery Protective
Association is misplaced for much the same reason as Metamin’s and
AEMA’s reliance on the Lyng line of cases. See supra note 26. Lyng held
that the Free Exercise Clause did not compel the government to defer to
tribal religious interests when managing public land. 485 U.S. at 453–54.
It in no way held that the Establishment Clause compelled the government
to disregard tribes’ interests in their sacred sites. See, e.g., id. at 454(“The Government’s rights to the use of its own land . . . need not and
should not discourage it from accommodating religious practices like
those engaged in by the Indian respondents.”).
54 NAT’L MINING ASS’N V. ZINKE
entanglement with religion.” Lemon, 403 U.S. at 613. Yount
has suggested that a withdrawal premised on the protection of
areas associated with “archaic religious dogma” that “few
currently follow” somehow inserts the federal government
into a debate over American Indian religious life. But again,
even with respect to tribal resources, the reasons for and
effect of the Secretary’s withdrawal were primarily secular.
The withdrawal in no way “involves comprehensive,
discriminating, and continuing state surveillance of religion.”
Nurre v. Whitehead, 580 F.3d 1087, 1097 (9th Cir. 2009)
(citation omitted). Nor is there any evidence that it “divides
citizens along political lines” for reasons related specifically
to American Indian religious practice. Id. at 1097 (citation
omitted); see Lemon, 403 U.S. at 622. Thus, the
Establishment Clause challenge fails under Lemon.
V. NEPA
A. Essential Information
Appellants also contend that the final EIS regarding the
withdrawal violated NEPA. Appellants propose, first, that by
ignoring missing data essential to its analysis, BLM failed to
consider an important aspect of the problem facing the
agency. We do not agree.
The EIS is “[t]he centerpiece of environmental review
. . . , in which the responsible federal agency describes the
proposed project and its impacts, alternatives to the project,
and possible mitigation for any impacts.” Oregon Nat.
Desert Ass’n v. Jewell, 840 F.3d 562, 568 (9th Cir. 2016).
NEPA’s implementing regulations require that “[w]hen an
agency is evaluating reasonably foreseeable significant
adverse effects on the human environment in an
NAT’L MINING ASS’N V. ZINKE 55
environmental impact statement and there is incomplete or
unavailable information, the agency shall always make clear
that such information is lacking.” 40 C.F.R. § 1502.22.
When that information is deemed “essential to a reasoned
choice among alternatives,” the agency must either obtain it
or, if the information is not obtainable, include in the EIS
(1) a statement identifying relevant unavailable or incomplete
information; (2) a discussion of the relevance of that
information to potential environmental impacts; (3) a
summary of the available credible scientific evidence which
is relevant to evaluating foreseeable environmental impacts;
and (4) the agency’s evaluation of those impacts based upon
generally accepted scientific approaches. 40 C.F.R.
§ 1502.22(a), (b); see Native Vill. of Point Hope v. Jewell,
740 F.3d 489, 497 (9th Cir. 2014) (holding that the steps
specified by § 1502.22(b) are required if the agency finds
“‘essential’ information to be unobtainable”).
Here, the final EIS fully abided by these regulatory
requirements. The final EIS consistently acknowledged that
information was incomplete with respect to a critical aspect
of the withdrawal — namely, the connection between
uranium mining and increased uranium concentrations in
groundwater in the withdrawn area. The document included
several subsections titled “Incomplete or Unavailable
Information,” which discussed the relevance of that missing
information to its analysis. For example, BLM acknowledged
in the final EIS that “more precise information on the
locations of exploration sites, mine sites, and roads would be
useful to better understand the . . . impacts to wildlife and fish
species,” and that “[a] more thorough quantitative data
investigation of water chemistry in the Grand Canyon region
would be helpful to better understand groundwater flow
paths, travel times, and contributions from mining activities.”
56 NAT’L MINING ASS’N V. ZINKE
As required, the EIS then summarized the scientific evidence
that was available and discussed foreseeable environmental
impacts.
Furthermore, the ROD concluded that the missing
information was not “essential to making a reasoned choice
among alternatives.” 40 C.F.R. 1502.22. The ROD observed
that there was data regarding dissolved uranium
concentrations near six previously mined sites, and that a
reasoned choice could be made using that data. The ROD
stated that collecting additional data would be “helpful for
future decisionmaking in the area” (emphasis added). But as
the withdrawal was not permanent and would apply only to
new mining claims, the ROD noted, additional data could be
collected during the withdrawal period and used to determine
whether additional mines should be allowed in the future.
Interior expressly stated that the missing information was
non-essential only in the ROD, not in the final EIS. We agree
with the Seventh and Tenth Circuits that an agency is not
required to state specifically in the final EIS that relevant
missing information was non-essential. “[NEPA’s
implementing] regulations do not prescribe the precise
manner through which an agency must make clear that
information is lacking.” Habitat Educ. Ctr., Inc. v. U.S.
Forest Serv., 673 F.3d 518, 532 (7th Cir. 2012); see also
Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1172–73
(10th Cir. 1999). As the final EIS complied with the
requirements for essential information, thereby ensuring that
interested parties had notice that the agency’s information
was incomplete, the delay in determining that the missing
data was not essential is of no moment.
NAT’L MINING ASS’N V. ZINKE 57
In short, the ROD concluded that any missing information
was non-essential, and the final EIS identified that missing
information, discussed its relevance, weighed the available
scientific evidence, and presented its conclusions regarding
potential environmental impact based on the available data —
exactly what 40 C.F.R. § 1502.22(b) would have required if
the missing information had been essential information.31
“We will defer to the agency’s judgment about the
appropriate level of analysis so long as the EIS provides as
much environmental analysis as is reasonably possible under
the circumstances, thereby providing sufficient detail to foster
informed decision-making at the stage in question.” Point
Hope, 740 F.3d at 498 (citations and alterations omitted).
Such deference is due here.
B. Coordination with Counties
A second front of the NEPA challenge concerns
requirements in FLPMA and NEPA regarding consultation
with local government. As relevant here, FLPMA requires
that the Secretary shall, “to the extent consistent with the laws
governing the administration of the public lands, coordinate
the land use inventory, planning, and management activities
of or for such lands with the land use planning and
management programs” of the “local governments within
which the lands are located” and shall “provide for
meaningful public involvement of State and local government
officials, both elected and appointed, in the development of
31
Metamin’s citation to Montana Wilderness Association v.
McAllister, 666 F.3d 549 (9th Cir. 2011), is unavailing. We held in
Montana Wilderness Association that the Forest Service erred in failing
to account for the relevance of missing information at all. 666 F.3d at560–61.
58 NAT’L MINING ASS’N V. ZINKE
land use programs, land use regulations, and land use
decisions for public lands.” 43 U.S.C. § 1712(c)(9). NEPA’s
implementing regulations also require that federal agencies
“cooperate with State and local agencies to the fullest extent
possible to reduce duplication between NEPA and State and
local requirements.” 40 C.F.R. § 1506.2(b). Metamin and
the Counties contend that the Secretary did not fulfill these
overlapping obligations. They are wrong.32
Interior held public meetings, designated the Counties as
cooperating agencies, and met separately with representatives
from the Counties. It also considered public comments
submitted by the Counties regarding the withdrawal.
Based in part on the comments it received from the
Counties, BLM ordered an expanded economic impact
analysis for the region and consulted county representatives
to determine what, if any, additional data to include in its
modeling. The final EIS contained extensive analysis
(spanning more than fifty pages) of the potential impact of
withdrawal on the Counties and other affected communities,
including economic impact, and observed that Mohave
County passed a resolution opposing the withdrawal. The
record thus demonstrates that Interior fully acknowledged and
considered the Counties’ concerns regarding the withdrawal,
even though it chose in the end to proceed. FLPMA and
NEPA require no more. In particular, the consent of state and
32
Interior notes that FLPMA’s local government coordination
requirement applies to “land use plans,” 43 U.S.C. § 1712(c), and that a
withdrawal from mining claims is not a “land use plan” within the
meaning of the statute. We need not address this issue, as we conclude
that the agency complied with the consultation requirements, assuming
they apply.
NAT’L MINING ASS’N V. ZINKE 59
local governments to a withdrawal is in no way required —
and with good reason, as regional environmental threats must
always be balanced against the economic gains the local
governments could reap if no federal action were taken.
NEPA does not confer veto power on potentially affected
state or local governments, each with its own economic
interests.
Finally, Appellants propose that Interior did not comply
with 40 C.F.R. § 1506.2(d), which requires agencies to
“discuss any inconsistency of a proposed action with any
approved State or local plan and laws” and, “[w]here an
inconsistency exists . . . describe the extent to which the
agency would reconcile its proposed action with the plan or
law.” Appellants maintain that the withdrawal is inconsistent
with county resolutions opposing the withdrawal. Those
resolutions, however, are not “approved State or local plans
or laws.” The final EIS and ROD did consider approved
county plans and found no inconsistencies or conflicts.
VI. Forest Service Consent
The final arrow in Appellants’ very large quiver is the
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 (“NFMA”) multiple-use mandate,
16 U.S.C. § 1604(e), or the terms and conditions of the
Kaibab National Forest Plan established under the NFMA.
The area withdrawn included approximately 355,874 acres in
the South and East Parcel managed by the Forest Service.
Including that land in the withdrawal area required the
consent of the Forest Service, which the Forest Service
provided. AEMA argues that the Kaibab Forest Plan, as of
60 NAT’L MINING ASS’N V. ZINKE
the effective date of the withdrawal, expressly contemplated
the withdrawal from mining only of four specific areas within
the forest, making the Forest Service’s consent to a larger
withdrawal area inoperative.
Neither the Forest Service nor the Department of
Agriculture (of which the Forest Service is a part) has the
authority to open or close public lands for mining. That
authority is delegated only to the Secretary of the Interior.
Section 202 of FLPMA specifies that public lands “shall be
removed from or restored to the operation of the Mining Law
of 1872 . . . or transferred to another department, bureau, or
agency only by withdrawal action pursuant to [43 U.S.C.
§ 1714] or other action pursuant to applicable law.”
43 U.S.C. § 1712(e)(3) (emphasis added). The specified
section of FLPMA, in turn, delegates withdrawal authority to
the Secretary of the Interior and states that the Secretary may
further delegate that authority only to other presidential
appointees within the Department of the Interior. 43 U.S.C.
§ 1714(a).
The NFMA does not confer withdrawal authority on the
Forest Service either. That statute concerns the management
of forests and their “renewable resources.” 16 U.S.C.
§ 1600(2). Minerals are not renewable resources and are not
directly within the Forest Service’s purview.
FLPMA does require that “[i]n the case of lands under the
administration of any department or agency other than the
Department of the Interior,” including the Forest Service, “the
Secretary shall make, modify, and revoke withdrawals only
with the consent of the head of the department or agency
concerned.” 43 U.S.C. § 1714(I). Congress may have
included the consent requirement within FLPMA in part to
NAT’L MINING ASS’N V. ZINKE 61
ensure that Interior would account for significant above-
ground impacts on lands managed by the Forest Service, or
to forestall interagency squabbling concerning jurisdiction
over withdrawn lands. But it decidedly did not confer on the
Forest Service (or the Department of Agriculture) the power
independently to open or close federal lands to mining.
Further, the Forest Service’s consent to the Secretary’s
withdrawal was not inconsistent with the governing forest
plan. AEMA’s argument rests on a faulty premise: that the
Forest Plan’s recommendation that certain discrete areas
under its purview be withdrawn from mining, so as to protect
renewable above-ground resources, impliedly granted mining
rights throughout the remainder of the Kaibab National
Forest. Again, the Forest Service has no authority to open or
close public lands to mining claims. And even if it did
possess such authority, the Kaibab National Forest Plan did
not preclude withdrawals beyond the four discrete areas
recommended. No guidance or directives within the Kaibab
Forest Plan suggest that the Forest Service meant to block all
withdrawals within the Kaibab National Forest beyond the
four identified sites.33
33
AEMA also suggests that even if the Forest Service could have
consented to the proposed withdrawal consistently with the Kaibab
National Forest Plan, the Forest Service failed to provide adequate
justification for its consent. This argument is without merit. The Forest
Service’s joint statement of consent with BLM, though brief, referenced
the potential environmental impacts to the Kaibab National Forest detailed
at greater length in the final EIS. The Forest Service also noted that it had
been a cooperating agency throughout the withdrawal process.
62 NAT’L MINING ASS’N V. ZINKE
CONCLUSION
At its core, the merits question in this case is whether the
Secretary was allowed to adopt a cautious approach in the
face of some risk, difficult to quantify based on current
knowledge, to what he called “America’s greatest national
wonder.” Appellants raise a myriad of challenges but in the
end identify no legal principle invalidating the Secretary’s
risk-averse approach. As Interior concluded, withdrawal of
the area from new mining claims for a limited period will
permit more careful, longer-term study of the uncertain
effects of uranium mining in the area and better-informed
decisionmaking in the future.
For the foregoing reasons, we AFFIRM the judgment of
the district court.
NAT’L MINING ASS’N V. ZINKE 63
APPENDIX A:
ACRONYMS USED IN THIS OPINION
AEMA American Exploration & Mining Association
APA Administrative Procedure Act
BLM Bureau of Land Management
EIS environmental impact study
FDAMA Food and Drug Administration Modernization Act
FDCA Federal Food, Drug, and Cosmetic Act
FLPMA Federal Land Policy and Management Act
NEPA National Environmental Policy Act
NFMA National Forest Management Act
PLLRC Public Land Law Review Commission
R-aquifer Redwall-Muav aquifer
ROD Record of Decision
SER Supplemental Excerpts of Record
USGS United States Geological Survey