SAN FRANCISCO (CN) – The Ninth Circuit heard arguments Thursday that the U.S. Forest Service failed to protect a sacred site for the Havasupai Tribe by allowing the resumption of operations at a uranium mine six miles south of the Grand Canyon National Park.
The Havasupai – along with the Grand Canyon Trust, Center for Biological Diversity, and Sierra Club – filed suit in the District of Arizona in 2013, claiming the Forest Service failed to consider environmental, mining and historic preservation laws when allowing Energy Fuels Resources to resume uranium mining at the Canyon Mine after falling uranium prices caused it to shut down for 20 years.
Of particular concern in the complaint was possible harm to Red Butte, which plays a part in the Havasupai origin story. This makes it a sacred site for the tribe, who live within the Grand Canyon.
Red Butte, known to the tribe as Wii’i Gdwiisa (“clenched fist mountain”), was designated a “Traditional Cultural Property” in 2010, which makes it eligible for listing on the National Register of Historic Places.
U.S. District Judge David Campbell declined to halt operations at the mine last year, finding that its 1986 plan of operation still applied despite Red Butte’s change in designation.
“[T]he plan under which mining would continue was fully approved by the Forest Service in 1986 after a consultation process, and no new undertaking required another approval,” Campbell found in his April 2015 order.
He ruled that the Forest Service properly decided to treat the change at Red Butte as a new discovery, “and address ways to avoid or minimize adverse effects on Red Butte from the Canyon Mine operations.”
Richard Hughes, an attorney for the Havasupai, argued Thursday to a three-judge panel of the Ninth Circuit that the Forest Service had the authority to change the 1986 plan.
“The government has not contested the fact that the Forest Service had the authority to make changes,” Hughes told the panel. “That power does exist in the Forest Service if needed.”
U.S. District Judge Frederic Block, sitting by designation from the Eastern District of New York, asked Hughes if he wanted a “do-over” of the plan.
“Precisely, your honor,” Hughes responded, adding that Red Butte should be protected under the National Historic Preservation Act.
“Doesn’t it provide in the plan of operation for this type of consideration?” Block asked.
“It has nothing to do with the impacts of the mine,” Hughes said.
Thekla Hansen-Young, an attorney for the Forest Service, argued in favor of Campbell’s ruling that the Forest Service had fully addressed the resumption of mining operations.
“The Forest Service here did everything it could within its limited authority,” Hansen-Young told the court. “The mining operations were consistent with current environmental laws … there was no need to amend its plan of operations.”
Block told Hansen-Young he understood there were “a lot of entanglements here.”
She argued the Forest Service took its obligations seriously.
“This forest has a dedicated tribal liaison officer,” Hansen-Young said. Ultimately, though, she added that, “the Forest Service was not legally required to do anything here.”
It’s unclear when the court will rule on the appeal.
Earlier this month, the Havasupai filed suit against the City of Williams, Arizona, and a dozen well owners, claiming they are encroaching on their federal water rights.