‘Zombie’ Claims May Not Help Mine Opponents

(CN) - Long inactive uranium mines near the Grand Canyon are coming back to life, like "zombies," without updated environmental reviews, an attorney told the 9th Circuit.

The federal appeals court in San Francisco heard oral arguments Thursday on the Center for Biological Diversity's challenge to the recent rebirth of the Arizona 1 uranium mine in a remote region near the canyon's north rim.

Arizona 1, operated by the Canadian outfit Denison Mines, is one of several old and outdated uranium mines that has resumed operations amid the improving uranium market has improved, attorney Neil Levine told a three-judge panel on Thursday.

The Bureau of Land Management allowed Denison to begin operating the Arizona 1 in 2009 under a plan of operations approved in 1988, when the mine had a different owner. The Center for Biological Diversity and several other groups and Indian tribes argue that the agency should have required Denison to submit new environmental reviews before mining resumed.

Levine said that the BLM's interpretation of federal mining regulations allows mines to stop production and restart at will, all under one plan of operations that is good for the life of the mine.

Such an interpretation ignores new regulations adopted in 2000 meant to prevent just that, he said.

"They are like zombie plans," Levine said. "They just keep coming up, and they could come up 50 years from now."

There were at least two "major federal actions" that should have triggered a new environmental review before the mine reopened, Levine added. First, the BLM allegedly issued a permit to Mojave County, Ariz., at Denison's request, to use gravel to improve the rough, remote road that leads to the mine. Second, Denison allegedly had to put up a new reclamation bond - which is supposed to assure that public land is reformed after the mine closes down.

Levine pointed out that a 2010 report by the U.S. Geological Survey, filed under seal in the case, found that similar 1980s-era uranium mines near Arizona 1 had contributed to high levels of radioactivity in soil and water samples, suggesting that "the reclamation bond approved in 1988 did not account for this new information that shows the old reclamation plans were not adequate."

"The overriding theme here is that BLM sought to do as little as possible to get this mine back online after 20 years," Levine said.

Arguing for the government, attorney Mark Haag said that Levine's interpretation was "simply not a plausible reading of the regulations."

He said that, once approved, a mining plan of operations is good for the life of the project.

"When active mining is not taking place, the mining plan of operations does not immediately become ineffective," he said. "Additional steps may lead to BLM revoking it, but it's not automatic."

Judge Jane Restani, who sat on the panel by designation from the U.S. Court of International Trade with the Circuit Judges J. Clifford Wallace and Carlos Bea, seemed to endorse the government's more lenient interpretation.

"I think your reading of the regulations makes a lot of sense," she said.

Haag added that a grandfather clause exempts the Arizona 1 mine's plan of operations, even though some of the regulations did indeed change in 2000.

Mines stop and start operations relatively frequently in response to markets, he said.

While Denison and its predecessors were still required to comply with water and air permits during the time that the mine was shut down, simply restarting operations "doesn't reopen the 1988 permit," he said.

Haag similarly shrugged off the new reclamation bond as mere "number crunching."

"The regulations specifically provide that BLM is going to review the bonds and update them, that's in the plan of operations," he said. "The fact that the bond was reviewed and the amounts updated is nothing that was not contemplated in the original plan, so it was not a major federal action at all."

Neither of the attorneys nor any of the judges raised what is perhaps the most significant federal action ever related to uranium mining near the Grand Canyon: the Department of the Interior's January 2012 decision to withdraw from mining more than 1 million acres of public lands surrounding Grand Canyon National Park.

As an existing mine, the Arizona 1 is exempt from the controversial move - which is the subject of its own litigation that will likely go before the 9th Circuit as well.

The plaintiffs attempted to introduce the issue through a motion for judicial notice filed in March, but the panel found that it the withdrawal occurred after the events at issue in the case.

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