Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 1 of 12

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1 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 1 of 12 Richard W. Hughes (NM Bar No. 1230) Rostein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLP 1215 Paseo De Peralta Santa Fe, New Mexico Tel: Fax: rwhughes@rosteinlaw.com Attorneys for Plaintiff Havasupai Tribe IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PRESCOTT DIVISION GRAND CANYON TRUST; ) CENTER FOR BIOLOGICAL ) DIVERSITY; SIERRA CLUB; ) and ) HAVASUPAI TRIBE, ) Case No PCT-DGC ) Plaintiffs, ) vs. ) RESPONSE OF PLAINTIFF ) HAVASUPAI TRIBE TO MICHAEL WILLIAMS, Forest ) FEDERAL DEFENDANTS Supervisor, Kaibab National Forest; and ) MOTION TO DISMISS UNITED STATES FOREST SERVICE, ) an agency in e U.S. Department of ) Agriculture, ) ) Defendants; ) ORAL ARGUMENT ) REQUESTED ENERGY FUELS RESOURCES (USA), ) INC.; and EFR ARIZONA STRIP LLC, ) ) Intervenor-Defendants. ) ) By is memorandum, Plaintiff Havasupai Tribe (e Tribe ) responds to e Federal Defendants Motion to Dismiss (Doc. 71) (hereinafter, Fed. Motion ), to e extent it asks is Court to dismiss e Four Claim of e Complaint (which is now designated as e Second Claim in Plaintiffs Amended Complaint). The Tribe hereby incorporates by reference e arguments made by Plaintiffs Grand Canyon Trust, Center for Biological Diversity and Sierra Club ( Co-Plaintiffs ) in e memorandum filed by em herein contemporaneously herewi, responding to e Fed. Motion s arguments as

2 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 2 of 12 to e First and Four Claims of e Amended Complaint, and including e introductory and background material set for in at memorandum. THE FEDERAL DEFENDANTS HAVE FAILED TO ASSERT ANY VALID BASIS FOR DISMISSING PLAINTIFFS SECOND CLAIM The Second Claim in Plaintiffs Amended Complaint, Doc. 115 at 25-26, alleges at e Forest Service failed to undertake consultation wi potentially affected Indian tribes, especially including Plaintiff Havasupai Tribe, as required by Section 106 of e National Historic Preservation Act ( NHPA ), 16 U.S.C. 470f and e regulations at 36 C.F.R. Pt. 800, before proceeding wi its valid existing rights ( VER ) determination, in light of e virtual certainty at e reopening of e Canyon Mine would adversely affect e Red Butte TCP. The VER determination enabled e reopening of e Canyon Mine, notwistanding e widrawal of e mine site by e Secretary of e Interior in January, 2012, from e operation of e mining laws (e Widrawal ). As such, it 1 constituted a Federal permit, license or approval wiin e meaning of Section There is a matter of terminology here at should be cleared up. In eir Complaint, Doc. 1, 89, in eir briefs in support of eir motion for preliminary injunction, Docs. 39, 61, and in e Amended Complaint, Doc. 115, 79, Plaintiffs stated at e VER determination was an undertaking under Section 106 of e NHPA. On furer reflection, Plaintiffs believe at to be incorrect. Undertaking is defined in e regulations as a project, activity or program funded in whole or in part under e direct or indirect jurisdiction of a Federal agency, including... ose requiring a Federal permit, license or approval. 36 C.F.R (y). (The language is taken almost verbatim from e statute, 16 U.S.C. 470w(7).) Section 106 of e Act (16 U.S.C. 470f) is concerned wi undertakings at can affect historic properties. In is case, e mine project itself is e undertaking, as it will most certainly affect e Red Butte TCP. The VER determination was e license or approval at allowed e undertaking to go forward. See, e.g., Sheridan Kalorama Hist. Assoc. v. Christopher, 49 F.3d 750, 754 (D.C.Cir. 1995) ( federal auority to fund or license a project can render e project an undertaking, but e decision of e funding or licensing agency is 2

3 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 3 of 12 Cf., Karuk Tribe v. United States Forest Service, 681 F.3d 1006 (9 Cir.2012) (en banc) (Forest Service approval of Notices of Intent to undertake mining activities, such at formal mining plans were not required, constituted agency action triggering consultation obligation under Section 7 of Endangered Species Act, 16 U.S.C. 1536). The United States Motion to Dismiss, however, attacks is claim primarily on e ground at neier e VER determination nor e Mine Review constituted a final agency action, and us ere is no jurisdiction for e claim under e APA. Fed. Motion, Doc. 71, at This argument is misguided. The Second Claim alleges at under e NHPA, e Forest Service was obliged to conduct a Section 106 consultation before it conducted e VER determination. It is e Forest Service s failure to pursue e Section 106 process, not e quality or character of e VER determination, at which e claim is primarily directed. As e final paragraph of e claim states, e defendants failure to conduct at process constitutes agency action unlawfully wiheld and unreasonably delayed, Amended Complaint, Doc. 115, at 26, 83, which is a separate ground for jurisdiction under 5 U.S.C. 706(1). Wheer or not e VER determination was a final agency action for purposes of e APA, us, is of no consequence, as long as e complaint properly alleges at e agency failed to take a discrete agency action at it is required to take. Norton v. Souern Utah Wilderness Alliance, 542 U.S. 55, 64 2 (2004) (emphasis by e Court). not itself an undertaking ); Fein v. Peltier, 949 F.Supp. 374, (D.V.I. 1996) ( undertaking for section 106 purposes includes activity under jurisdiction of federal agency regardless wheer agency funds it in whole or in part). 2 In Norton, e Supreme Court explained at to meet is jurisdictional requirement, e action at e agency is alleged to have failed to take must itself be one at would be deemed a final agency action, i.e., one at could itself be challenged under e APA had it been taken. 542 U.S. at An agency s conduct of consultation under Section 106 has repeatedly been held to qualify as such, in cases challenging e adequacy of such consultation. See, e.g., Te-Moak 3

4 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 4 of 12 That is precisely e claim here. The Second Claim alleges at under Section 106 of e NHPA, before performing e VER determination e Forest Service was required to take into account e effect of e undertaking on any district [or] site... at is included in or eligible for inclusion in e National Register. The regulations at 36 C.F.R describe e agency s responsibilities in detail. In its Order denying Plaintiffs Motion for Preliminary Injunction, entered herein on September 9, 2013, Doc. 86 at 8-13, is Court examined e VER determination in e context of e question wheer it could be considered a final agency action for purposes of e APA. There is no auority of which Plaintiffs are aware at requires at e federal license or approval at triggers e Section 106 process must be 3 equivalent to a final agency action. As e court held in Atlantic Richfield Co. v. United States, 774 F.2d 1193, 1200 (D.C.Cir. 1985), license can include any form of permission. In Vieux Carre Property Owners v. Brown, 948 F.2d 1436, 1445 (5 Cir. 1991), e court noted at Section 106 duties apply as long as a Federal agency has opportunity to exercise auority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals. (Quoting Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 280 (3d Cir. 1983); emphasis Tribe v. United States Department of e Interior, 608 F.3d 592, (9 Cir, 2010); Pit River Tribe v. United States Forest Service, 469 F.3d 768, 787 (9 Cir. 2006); Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, (9 Cir. 1999); Pueblo of Sandia v. United States, 50 F.3d 856 (10 Cir. 1995); Quechan Tribe v. United States Department of e Interior, 755 F.Supp.2d 1104 (S.D.Cal. 2010); Comanche Nation v. United States, 2008 WL (W.D.Okla., Sept. 23, 2008); Attakai v. United States, 746 F.Supp (D.Az. 1990). 3 The Tribe noneeless fully joins in e arguments made by Co-Plaintiffs at e VER Determination properly should be seen as a final agency action for APA review purposes. 4

5 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 5 of 12 added). That passage strongly suggests at it does not take a final agency action to trigger Section 106. This Court also viewed e VER determination as not having legal consequences, in e sense meant by Bennett v. Spear, 520 U.S. 154, (1997), a case setting out a test for determining wheer an action constitutes a final agency action. Doc. 86 at Again, wheer or not e VER determination meets at standard, e record seems clearly to establish at it had e effect of a federal license or approval for purposes of e NHPA. The VER Determination itself states at it is Forest Service policy (FSM ) to only allow operations on mining claims wiin a widrawal at have valid existing rights (VER). AR (emphasis added). That statement was repeated verbatim on a page on e KNF website, describing e VER Determination for e Canyon Mine, AR 10642, and it was reiterated in e Executive Summary of e Mine Review, issued by e Defendants on June 25, 2012, in which e KNF stated, Under e segregation and subsequent widrawal, any mining claimant pursuing approval for exploration or mining would need to prove eir claims had valid existing rights prior to e 2009 segregation. AR (emphasis added). And see oer auorities referenced in e memorandum filed herein by Co-Plaintiffs. This Court s September 9, 2013 Order acknowledged e Forest Service policy quoted above, but chose to look instead at a statement in an informal Forest Service Q&A handout, dated in 2009, stating at It is e policy of e Forest Service to be consistent wi e BLM direction on when VER determinations will be made. Doc. 86 at 11 n.2; and see AR But e provisions of e BLM Handbook referred to by e Court are equivocal, and clearly give BLM managers broad discretion. A section specifically relied on by e Court, Section 8.1.5, states at BLM still retains e discretion to assess e validity of any mining claim on any lands... when it would be in e public interest and may choose to do so when ere are ongoing operations in 5

6 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 6 of 12 widrawn or segregated lands. AR (emphasis added; footnote omitted). Section ( Determination of Invalidity ) states at if e VER determination concludes at e claim was invalid at e time of a widrawal, BLM may not approve e Plan of Operations... or allow any oer activities on e mining claim. AR (emphasis added). The highlighted statements plainly suggest at on e basis of an adverse finding in a VER determination, BLM would disallow any oer activities on widrawn lands, even if a Plan of Operations had been approved. Plaintiffs us submit at e BLM policies are not at all inconsistent wi Forest Service policy KNF Supervisor Michael Williams himself explicitly affirmed e effect of e VER Determination in a statement he made to e Hualapai Tribal Council, in a 4 conference call on January 11, AR At e outset of e conversation, Williams was asked what would happen if Denison cannot show VER [valid existing rights]? He replied, according to e KNF notes of e call, ey would no[t] be able to move forward wiout VER under e mineral widrawal; and see AR (KNF informing Kaibab Paiute representatives at EFR will not be doing any shaft sinking at e site until e minerals exam is completed ); AR (KNF News Release issued on June 25, 2012, stating at EFR was expected to resume operations at e mine [b]ased on e results of e mineral validity examination ). EFR itself conceded at it could not begin operations until KNF found at its two mining claims at e Canyon Mine contained valid existing rights. AR (EFR press release saying company will begin sinking Canyon Mine shaft pending regulatory approval ). These statements are consistent wi e holding of a decision relied on by e Defendants and by is Court in its decision denying e motion for preliminary 4 Because e Defendants considered is document to contain Confidential Information, it was filed wi e Court under seal, but e statement quoted here is not Confidential Information. 6

7 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 7 of 12 injunction, Wilderness Society v. Robertson, 824 F.Supp. 947, 953 (D.Mont.1993). See Doc. 86 at 12. In rejecting a claim by e plaintiffs in at case at a VER determination made by e Forest Service should have been preceded by an environmental impact statement, e court observed at such a determination is not a discretionary matter of granting or denying a privilege, but raer is a non-discretionary act of determining wheer rights conferred by Congress have come into existence. (Emphasis added.) The court is plainly characterizing e VER determination as an objective inquiry wi important legal consequences, in is case governing e decision wheer a patent should issue to e mining company. Precisely e same reasoning applies here, at e VER determination governed e determination wheer, in light of e Widrawal and Forest Service policy FSM , mining activity could resume at e Canyon Mine. Thus, regardless wheer e VER determination should be considered a final agency action, it unquestionably constitutes a federal license or approval at enabled e restarting of e Canyon Mine to proceed, notwistanding e Widrawal. Defendants also argue at e Second Claim is barred by res judicata, based on e decision in Havasupai Tribe v. United States, 752 F.Supp.1471 (D.Az. 1990), aff d sub nom. Havasupai Tribe v. Robertson, 943 F.2d 32 (9 Cir.1991) ( Havasupai Tribe ). Defendants are wrong. Res judicata bars relitigation of a claim at was or could have been litigated in a previous lawsuit between e same parties at went to final judgment, or of issues at were actually and necessarily litigated in a prior lawsuit between e same parties. Taylor v. Sturgell, 553 U.S. 880, (2008). It is clear beyond any doubt at e issues raised in Plaintiffs Second Claim were not, and could not have been, litigated or decided in Havasupai Tribe. First, ere is e obvious point at while e Tribe (along wi several individual members of e Tribe) was e plaintiff in Havasupai Tribe, in is case e plaintiffs include ree environmental organizations at were not parties to at earlier case, and 7

8 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 8 of 12 us could not be barred by res judicata under any eory. Taylor, 553 U.S. at ( A person who was not a party to a suit generally has not had a full and fair opportunity to litigate e claims and issues settled in at suit. (Quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996).) On at point alone, is argument should be rejected. Second, however, Plaintiffs Second Claim is not, as e United States attempts to characterize it, a generalized claim of violation of e Tribe s rights to religious freedom, see Fed. Motion, Doc. 71 at Raer, it alleges at e likelihood of adverse impacts on e Red Butte Traditional Cultural Property ( TCP ), which had only been designated a TCP in 2010, mandated consultation under Section 106, prior to e completion of e VER determination. No such claim could have been made in e Havasupai Tribe litigation, because Red Butte had not been identified as a TCP, and probably could not have been until e NHPA was amended in 1992 (after e Havasupai Tribe decision) to provide specifically at [p]roperties of traditional religious and cultural importance to an Indian tribe could be listed on e National Register. 16 U.S.C. 470a(d)(6). The Second Claim is noing like e claim made in e earlier litigation, at e Tribe s (and individual members ) religious rights are being violated by approval of e mine. Raer, e claim here is at e Forest Service failed entirely to perform e specific, discrete duties imposed on it by Section 106 of e NHPA and e regulations at 36 C.F.R. Pt. 800, to determine means to avoid, minimize or mitigate e adverse effects of e mine on e Red Butte TCP. Plainly, at claim was not, and could not have been, litigated or decided in e Havasupai Tribe litigation. For e same reasons, e United States contention at e Second Claim is barred by laches is completely wiout merit. The claim is not an attack on e adequacy of e Section 106 process supposedly conducted by e Forest Service in 1984 in connection wi e original approval of e Plan of Operations for e Canyon Mine. 8

9 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 9 of 12 There is no claim here at ere was anying wrong wi at process (which consisted solely of an archaeological survey of e mine site). Raer, e claim is at before allowing e mine to reopen in 2012, e Forest Service was obliged to undertake a new Section 106 Process, in light of e identification of e Red Butte TCP in That claim only arose in 2012, when e Forest Service completed and released e VER determination wiout doing any furer consultation under Section 106. The situation here, us, is very much like at in Preservation Coalition, Inc., v. Pierce, 667 F.2d 851 (9 Cir. 1982), a decision favorably discussed in a case cited and relied upon by e United States, Apache Survival Coalition v. United States, 21 F.3d 895, 909 (9 Cir. 1994). In Preservation Coalition, e district court had dismissed e NEPA claim on e ground of laches, concluding at e last major federal action had occurred in 1971, but suit was not filed until But e court of appeals noted at e circumstances at prompted e filing of e lawsuit were e placing of several buildings in downtown Boise on e National Register, which occurred in 1974 and 1978, and en e discovery by e plaintiffs in 1979 at e city had decided to demolish e buildings as part of e federally funded project. The plaintiffs complained to federal officials at is change in plans should force e preparation of an environmental impact statement, and when at claim was rejected ey filed suit. The Nin Circuit had no difficulty concluding at e plaintiffs had acted diligently, under e circumstances, and in Apache Survival Coalition e court approved at conclusion. 21 F.3d at 909. That reasoning should apply fully here. Alough e original Plan of Operations for e Canyon Mine was approved in 1986, it was not until 2010 at e Forest Service determined at Red Butte and a large area around it, including e actual site of e mine, should be designated a Traditional Cultural Property. It was en in June, 2012, at e Forest Service made e determination at e Canyon Mine could reopen wiout furer environmental review or consultation under NHPA, and for e first time invited Plaintiff 9

10 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 10 of 12 Havasupai Tribe and oer tribes to engage in consultation about e project. AR The Tribe and e Advisory Council on Historic Preservation advised e Forest Service at it needed to undertake a full Section 106 process before any destructive activity occurred on e mine site, AR 11326, 11334, but e Forest Service refused to modify its position. After e Tribe attended e one consultation session at e Forest Service convened, in January, 2013, and saw at e entire process was a sham, see AR , it joined wi e Co-Plaintiffs and filed is suit in March, There can be no basis for a finding of lack of diligence on e Tribe s part on is record. The United States finally claims at is claim is barred by e 6-year statute of limitations in 28 U.S.C. 2401(a), relying on a total mischaracterization of e claim as an attack on e 1986 Record of Decision ( ROD ) for e Canyon Mine. This argument is simply frivolous. The Second Claim makes no reference whatever to e ROD, and cannot by even e most tortured logic be construed as an attack on e ROD. It raer arises from e events of 2012, and directly attacks e Forest Service s violation of its clear duties under Section 106 of e NHPA in connection wi its determination at operation of e Canyon Mine could resume. In short, e government s motion to dismiss Plaintiffs Second Claim must be denied. Respectfully submitted, Dated: May 2, 2014 /s/ Richard W. Hughes Richard W. Hughes Attorney for Plaintiff Havasupai Tribe 10

11 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 11 of 12 CERTIFICATE OF SERVICE I hereby certify at on May 2, 2014, I caused to be filed a true and exact copy of Plaintiff Havasupai Tribe s Response to Federal Defendants Motion to Dismiss wi e Court s CM/ECF system, which will generate a Notice of Filing and Service on e following: Beverly F. Li Trial Attorney, Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C beverly.li@usdoj.gov Attorney for Federal Defendants Bradley Joseph Glass David J DePippo Michael K Kennedy Gallagher & Kennedy PA 2575 E Camelback Rd., Ste Phoenix, AZ brad.glass@gknet.com david.depippo@gknet.com mkk@gknet.com Attorneys for Defendants-Intervenors Neil Levine Grand Canyon Trust 4438 Tennyson Street Denver, Colorado Tel: nlevine@grandcanyontrust.org Marc Fink Center for Biological Diversity 209 East 7 Street Dulu, Minnesota Tel: mfink@biologicaldiversity.org Roger Flynn Western Mining Action Project 440 Main St., #2 Lyons, CO Tel: wmap@igc.org 11

12 Case 3:13-cv DGC Document 120 Filed 05/06/14 Page 12 of 12 Attorneys for Plaintiffs Grand Canyon Trust, Center for Biological Diversity and Sierra Club /s/ Richard W. Hughes 12