PHOENIX (CN) – The Ninth Circuit on Tuesday upheld an Obama administration ban on uranium mining near the Grand Canyon, but in a separate decision cleared uranium mine operations to resume at a mine six miles south of the canyon.
The National Mining Association and other mining advocates sued the Department of the Interior and the Bureau of Land Management in 2012, after former Interior Secretary Ken Salazar banned mining on more than 1 million acres of public land near the national park.
The group claimed the ban killed more than 1,000 jobs in the area.
The Trump administration is considering lifting the ban near the park following a November recommendation by the U.S. Forest Service. The House Natural Resources Subcommittee on Energy and Mineral Resources held a hearing Tuesday on whether to allow uranium mining to resume in the area.
In 2014, U.S. District Judge David Campbell upheld the ban, finding there was no legal principle preventing the government's action.
“BLM openly acknowledged uncertainty on how water resources might be impacted,” Campbell wrote. “It candidly recognized a low probability of groundwater contamination from uranium mining. It nevertheless examined the available science, solicited and considered comments both internally and from the public, and ultimately concluded that the uncertainties, coupled with even a low potential for major adverse effects, warranted a level of precaution that justified the withdrawal.”
The Ninth Circuit's decision Tuesday largely mirrored Campbell's ruling.
“(W)ithdrawal 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 decision making in the future,” Circuit Judge Marsha Berzon wrote for the three-judge panel.
As the only Native tribe to continuously live in the Grand Canyon, the Havasupai Tribe hailed the panel’s decision.
“The Havasupai people have been here since time immemorial. This place is who we are,” said Havasupai Tribal Chairman Don Watahomigie in a statement.
“The Creator made us protectors of the Grand Canyon. The Havasupai Tribe is gratified to know that the court has recognized the validity of the mineral withdrawal and what we have always known – that this place, these waters and our people deserve protection. The lives of our children and the purity of our waters are not to be gambled with and are not for sale.”
In a separate decision, however, the same panel declined the halt operations at nearby Canyon Mine.
The Havasupai, along with environmental groups the Grand Canyon Trust, Center for Biological Diversity, and Sierra Club, sued the U.S. Forest Service in 2013, after the agency allowed Energy Fuels Resources to resume uranium mining at Canyon Mine after declining prices caused it to shut down for 20 years.
The coalition claimed the Forest Service did not consider environmental implications or the preservation of Red Butte, a sacred site that plays a part in the Havasupai's origin story. Red Butte was designated a “Traditional Cultural Property” in 2010, making it eligible for listing on the National Register of Historic Places.
Judge Campbell found in April 2015 that the Forest Service acted properly in treating Red Butte's designation as a new discovery, and addressing "ways to avoid or minimize adverse effects on Red Butte from the Canyon Mine operations.”
“No new undertaking required another approval,” Campbell ruled.
The coalition appealed Campbell's decision, and the Ninth Circuit heard arguments in that appeal last December.
U.S. District Judge Frederic Block, sitting by designation from the Eastern District of New York, found the Forest Service looked for ways to mitigate possible adverse effects of mining on Red Butte.
"(T)he Tribe does not dispute that Red Butte was not a 'historic property' eligible for inclusion on the National Register until 2010," Block wrote for the panel.
As a result, the Forest Service was not obligated by historic preservation laws to take the site into account in 1986 during the approval process for the mine.
"And while we agree that eligibility for inclusion on the National Register is not exactly a 'discovery,' there is no other regulation requiring an agency to consider the impact on newly eligible sites after an undertaking is approved," Block found.
According to the panel, the original approval of the mining operations plan satisfied the National Environmental Policy Act and the National Historic Preservation Act of 1966 as a major federal action.
"(T)he mineral report did not 'permit, license, or approv[e]' resumed operations at Canyon Mine; it simply acknowledged the continued vitality of the original approval," Block wrote.
Sandy Bahr, director of the Sierra Club's Grand Canyon chapter, nonetheless applauded the decision to uphold the Obama administration ban.
“We are disappointed that the court did not uphold the challenge to Canyon Mine, however, and we will continue to do all we can to ensure permanent protection of these lands," Bahr said in a statement.
Circuit Judge Mary Murguia joined Berzon and Block in the opinions.
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