Uranium: Explosive Both In and Out of Court

Uranium mining has the potential to damage the ecosystem in the Grand Canyon and endanger the way of life of Native American tribes living nearby. Recently, the Havasupai Tribe took legal action to protect its waters from potential contamination from mine runoff. They are opposed by mining companies who own mining claims in the area. A legally complex scenario has unfolded involving multiple laws, regulations, and lawsuits. While some issues have been resolved, a Senate bill and a petition to the Trump Administration both vie for dominance and could have a profound impact on the Grand Canyon for decades to come.

In 1966, Congress passed the National Historic Preservation Act (NHPA), which is designed to strike a balance between the demands of modern society and the preservation of lands with historic value.[1] NHPA requires that federal agencies consult with tribes when considering approval of projects that could negatively affect the cultural resources of the tribe.[2]

In 2008, after an increase in new uranium mining claims on lands surrounding the Grand Canyon, public concern developed over the potential adverse environmental effects of the mines. In response, the Secretary of the Interior signed the Northern Arizona Withdrawal (NAW) in January of 2012, which had the effect of a 20-year ban on all new mining claims on over one million acres surrounding the Grand Canyon.[3] The NAW had a rationale of allowing time to evaluate the environmental impacts of mining claims on the Grand Canyon and on the tribes that live nearby.[4] The entire area serves seven tribes, and Red Butte is sacred land located within the affected area. “All seven tribes, the Havasupai Tribe, Hualapai Tribe, Hopi Tribe, Navajo Nation, Kaibab Band of Paiutes, the Paiute Indian Tribe of Utah, and the Zuni Tribe, uniformly believe that continued uranium mining will result in the loss of their functional use of the area’s natural resources.”[5] The National Mining Association sued to overturn the NAW, but lost in District Court and lost on appeal in the 9th Circuit Court of Appeals in 2017.[6]

Canyon Mine, just south of the Grand Canyon, was not included in the NAW. The U.S. Forest Service originally approved Canyon Mine for operation in 1988. Work on the mine structure began but stopped in 1991 as the demand for uranium fell.[7] In 2010, Red Butte was named a Historic Place under NHPA. After the NAW was signed, Energy Fuels Resources, who owns the mine, notified the U.S. Forest Service that it planned to put the mine back into action. The U.S. Forest Service began negotiating with the Havasupai Tribe to minimize damage around Red Butte, but talks stopped when the Tribe sued in 2013.[8]

The Tribe was joined in their lawsuit, Havasupai Tribe v. Provencio, by the Grand Canyon Trust, Sierra Club, and Center for Biological Diversity. The U.S. Forest Service (Provencio) was joined by Energy Fuels Resources and EFR Arizona Strip. The Tribe made several arguments, most notably that the U.S. Forest Service violated the NHPA by not conducting a consultation under section 106.[9] This consultation is required for project approvals near sacred sites, but the U.S. Forest Service had not gone through the process for Canyon Mine because its approval predated Red Butte being added to the list of Historic Places under NHPA.[10] The District Court and the 9th Circuit Court of Appeals ruled against the Havasupai Tribe in 2017. Interestingly, in 2018, the 9th Circuit issued an amended ruling, allowing the Tribe to challenge Canyon Mine under the Federal Land Policy Management Act.[11]

Energy Fuels Resources has not let the matter go, however. On January 16, 2018, in an attempt to make uranium mining profitable, it, along with other owners of uranium mining claims, presented a petition to the Trump Administration arguing that domestic mining protects the U.S. economy, national security, and energy reserves.[12] Trump recently declared uranium a critical mineral for national security, and the U.S. Department of Commerce made a recommendation to mine reserves of critical minerals rather than continuing to import them.[13]

On February 26, 2019, Congressman Raul Grijalva (D-AZ) introduced the Grand Canyon Centennial Protection Act in the House of Representatives. The bill was approved by the House on October 30, 2019, and was referred to the Senate where it is with the Committee on Energy and Natural Resources.[14] If signed into law, it will permanently protect the lands addressed in the NAW. This legislation’s stated purpose is, “to protect, for current and future generations, the watershed, ecosystem, and cultural heritage of the Grand Canyon region in the State of Arizona.”[15]

This battle is not over. Both the bill in the Senate and the petition submitted to the Trump Administration could powerfully impact the Grand Canyon, its ecology, and tribes for generations to come.

[1] 54 U.S.C.S. § 300101 (Current through Public Law 116-65, approved Oct. 9, 2019), https://advance-lexis-com.ezproxy1.library.arizona.edu/api/document?collection=statutes-legislation&id=urn:contentItem:8SDD-0X62-D6RV-H4TS-00000-00&context=1516831.

[2] 54 U.S.C.S. § 304106 (Current through Public Law 116-68, approved Nov. 8, 2019.), https://advance-lexis-com.ezproxy1.library.arizona.edu/api/document?collection=statutes-legislation&id=urn:contentItem:8SDD-0X62-D6RV-H4XJ-00000-00&context=1516831

[3] U.S. Dept. of the Interior,., Record of Decisions Northern Arizona Withdrawal (Jan. 9, 2012), https://www.fwspubs.org/doi/suppl/10.3996/052014-JFWM-039/suppl_file/052014-jfwm-039r1-s08.pdf

[4] Id. at 9.

[5] Id. at 11.

[6] National Mining Association v. Zinke, 877 F.3d 845 (2017), cert denied, 139 S.Ct. 57 (2018), (http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/12/14-17350.pdf.

[7] “Uranium Mining,” GRAND CANYON TRUST), https://www.grandcanyontrust.org/grand-canyon-uranium.

[8] Vandana Ravikumar, Court gives tribe, environmentalists new chance to fight uranium mine, CRONKITE NEWS ARIZONA PBS (Oct. 25, 2018), https://cronkitenews.azpbs.org/2018/10/25/court-gives-tribe-environmantalists-new-chance-to-fight-uranium-mine/.

[9] 54 U.S.C.S. § 304106 (Current through Public Law 116-68, approved November 8, 2019.), https://advance-lexis-com.ezproxy1.library.arizona.edu/api/document?collection=statutes-legislation&id=urn:contentItem:8SDD-0X62-D6RV-H4XJ-00000-00&context=1516831.

[10] Havasupai Tribe v. Provencio, 906 F.3d 1155, 1155-57 (9th Cir. 2018), cert. denied, 139 S.Ct. 2621 (2019), http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/25/15-15754.pdf.

[11] Id. at 1165-66.

[12] United States Department of Commerce, Petition for Relief Under Section 232 of the Trade Expansion Act of 1962 From Imports of Uranium Products That Threaten National Security (Jan. 16, 2018), http://filecache.investorroom.com/mr5ircnw_energyfuels/364/2017.01.16-Signed-Petition.pdf.

[13] Valerie Volcovici, “U.S. uranium miners see boost from Commerce report,” REUTERS (Jun. 5, 2019), https://www.reuters.com/article/us-usa-mining-uranium/u-s-uranium-miners-see-boost-from-commerce-report-idUSKCN1T62SN.

[14] H.R. 1373, 116th Cong. (as passed by House of Representatives, Oct. 30, 2019), https://www.congress.gov/bill/116th-congress/house-bill/1373/all-actions?overview=closed#tabs

[15] H.R. REP. NO. 116-222, (2019), https://www.congress.gov/congressional-report/116th-congress/house-report/222/1.

Photo courtesy of Grand Canyon Trust. https://www.grandcanyontrust.org/grand-canyon-uranium

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