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9th Circuit rules Obama’s withdrawal of Grand Canyon land for mining legal

A federal appeals court has rebuffed efforts by mining interests to reopen a huge area around the Grand Canyon to new uranium mining.

The 9th Circuit Court of Appeals rejected arguments by the National Mining Association and allied groups that it was illegal for Kenneth Salazar, the Interior Secretary in the Obama administration, to withdraw about 1 million acres around the park to new mining claims for 20 years. The court said while there may be differences in opinion on what danger the mining poses to the water supply, that did not make the withdrawal either arbitrary or capricious.

Judge Marsha Berzon, writing for the unanimous three-judge panel, also said Salazar and his department did not violate requirements for the federal government to promote multiple uses of public lands.

Marsha Berzon

Marsha Berzon

“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,” said Berzon, an appointee of President Clinton. “This approach was fully consonant with the multiple-use principle.”

And the appellate court said the Interior Department met its legal requirement to consider the potential impact of its actions on local governments. That included a resolution passed by the Mohave County Board of Supervisors against withdrawing the land from new claims.

But Berzon said simply more is not required.

“In particular, the consent of state and local governments to a withdrawal is in no way required,” she wrote, saying the National Environmental Policy Act “does not confer veto power on potentially affected state or local governments, each with its own economic interests.”

Sandy Bahr, lobbyist for the Sierra Club in Arizona, acknowledged that the ruling comes as the Trump administration is weighing whether to narrow the off-limits area or rescind Salazar’s designation entirely.

But Bahr said any such move could not be unilateral, with Trump and his administration having to comply with the National Environmental Policy Act “and justify doing so.”

“We will oppose it and challenge it if he moves forward with rescinding it,” she said.

Mining Association spokeswoman Jamie Caswell said her organization is disappointed by the decision.

“We are reviewing it further to determine any future actions,” she said.

Large quantities of uranium was first discovered near the national park in the late 1940s. Production surged in the 1980s and 1990s with a spike in prices.

A rainbow in the Grand Canyon as seen from Near Mather Point on the South Rim. (Photo courtesy of the U.S. Department of Agriculture)

A rainbow in the Grand Canyon as seen from Near Mather Point on the South Rim. (Photo courtesy of the U.S. Department of Agriculture)

But Berzon said that the collapse of the Soviet Union and decommissioning of many nuclear warheads pretty much halted mining in the area.

All that changed in 2007 with another price spike, she said. But in 2012, reacting to concerns about the impact of mining radioactive materials, Salazar proposed withdrawing about 1 million acres from new claims.

The mining interests sued. After being rebuffed in 2014 by a federal judge in Arizona they took their case to the appellate court.

Berzon said there were concerns about the potential impact of a large-scale increase in mining.

“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,” she wrote. And Berzon noted that multiple reports “all acknowledged substantial uncertainty regarding water quality and quantity in the area, the possible impact of additional mining on perched and deep aquifers, and the effect of radionuclide exposure on plants, animals and humans.”

The result, she said, was a “measured approach” by the department, saying that keeping new mining from starting for 20 years will allow for additional data on things like groundwater flow paths and the contribution that mining makes to radiation.

Berzon said legal challenges to decisions like those made by Salazar can be overturned by courts only in cases where they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” And the judge said courts give great deference to the actions of an agency and uphold them “if a reasonable basis exists for its decision.”

In this case, she said, there is reason for the court not to overturn what Salazar did.

She said there was evidence that additional uranium mining could pose a risk of concentration. That included an analysis of more than 1,000 water samples within the region which found that 70 sites exceeded federal contaminant levels for heavy metals.

And samples from 15 springs and five wells indicated uranium concentrations exceeded standards.

Berzon acknowledged that some analysts within the Interior Department disagreed with the risk.

“But the existence of internal disagreements regarding the potential risk of contamination does not render the agency’s ultimate decision arbitrary and capricious,” the judge wrote. “Scientific conclusions reached by the agency need not reflect the unanimous opinion of its experts.”

The appellate court also backed the finding that the area is of “profound significance and importance to Native American tribes.” And the judges said nothing in law requires the Interior Department to limit protection to smaller carve-outs rather than preserving larger areas which have multiple cultural and historic sites.

Berzon agreed with arguments that existing laws and regulations might mitigate the impact of uranium mining on environmental, cultural and visual resources, as well as wildlife and human health. But she said the final environmental study “does not suggest that simply enforcing existing laws and regulations would suffice to meet the purposes of the withdrawal.”

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