After a long history of disposal and extractive exploitation on federal public lands, Congress codified protection of broader public values by passing comprehensive reform in the Federal Lands Policy and Management Act (FLPMA) of 1976. A recent decision from the Ninth Circuit calls into question the ability of parties with environmental interests to ensure public lands agencies properly evaluate private economic interests on public lands that may pre-date FLPMA.
Three public lands professors from the University of Colorado Law, Sarah Krakoff, Mark Squillace and Charles Wilkinson, signed on to an amicus brief supporting a petition by the Grand Canyon Trust (GCT) for en banc review of a Ninth Circuit decision. An Arizona district court and Ninth Circuit panel denied the GCT and Havasupai Tribe standing to challenge the Forest Service’s decision to allow a uranium mine to operate on public land withdrawn by Secretary Salazar. The brief, signed by Eric Biber of UC Berkeley, expressed concern that the original decision made several fundamental legal errors that could have far-reaching effects on standing, particularly in the public lands and environmental law context.
As discussed in the Ninth Circuit’s opinion upholding the Secretary’s authority to make the withdrawal, uranium mining was popular in the United States in the late 1970s through early 1980s. A decrease in demand in the 1990s caused the closure of many Arizona mines. However, a spike in prices recently rekindled interest in the deposits and former mines surrounding the Grand Canyon National Park. As of 2009, over 10,000 mining claims had been located around the Grand Canyon National Park. In response to renewed interest in uranium, then Secretary of the Interior Ken Salazar began a process to determine if he should exercise authority under the Federal Land Policy and Management Act (FLPMA) and withdraw land around the Grand Canyon from operation of the Mining Law of 1872.
In January 2012, after public comment and publication of an Environmental Impact Statement, the Secretary issued a Record of Decision (ROD) withdrawing 1,006,545 acres of federal land. The withdrawal protected the Grand Canyon’s watershed from new mining activities and allow time for research on potential adverse impacts from mining activities. In order to conduct uranium mining on the withdrawn lands, a miner must have “valid existing rights.” Subsequently, the GCT, along with the Havasupai Tribe and several environmental non-profits, challenged a Forest Service determination that a particular uranium mine, shuttered since 1986, had valid existing rights and could resume mining operations on the withdrawn land.
Affirming the district court, the Ninth Circuit denied petitioners’ standing to challenge the Forest Service’s determination under the “zone-of-interest” test. The circuit held: (1) the GCT’s claim arose under the Mining Law, not FLPMA, and (2) because the Mining Law serves interests that “are frankly economic,” the GCT’s environmental and recreational interests did not meet the zone-of-interest test. Therefore, the panel denied the GCT standing. Amici (Environmental and Natural Resource Law Professors), filed a brief supporting en banc review, expressing concern about the panel’s zone-of-interest analysis.
Amici argued that the panel erred by misstating the GCT’s cause of action and using an overly restrictive view of the interests sufficient to meet a zone-of-interest test. The first error is particularly vexing. FLPMA, not the Mining Law, gives the Secretary withdrawal authority and limits that authority from affecting valid existing rights. If a miner continued to mine on withdrawn lands without valid existing rights, FLPMA would be violated, not the Mining Law. The Forest Service, by allowing mining on withdrawn land in absence of valid existing rights, would violate its duties under FLPMA, not the Mining Law. Despite this reality, and citing to no authority, the panel concluded that because FLPMA does not define “valid existing right,” the GCT’s claim arose under the Mining Law. Amici pointed out that statutes commonly refer to and borrow terms from other statutes, but that does not transform the cause of action to the secondary statute. In essence, the panel’s decision focused on how mining rights are created while ignoring the focus of the GCT’s claim – how mining rights are limited.
Second, analyzing what satisfies the zone-of-interest test under the Mining Law, the panel recognized that limitations on mining rights protect the interests of those with competing claims. But, the panel differentiated between property interests and environmental interests and held the limitations did not protect environmental interests. This holding ignored the Supreme Court’s controlling zone-of-interest precedent, Data Processing. From Data Processing on, the Supreme Court has repeatedly and explicitly held that Congress need not have had in mind the exact interests of those affected by the statutory limitation. Rather, plaintiffs can share Congress’s interest in enforcing the limitation, so long as they meet other traditional requirements of standing.
If the panel’s opinion stands, it may allow parties to question opponent’s standing in a variety of public lands lawsuits. For example, FLPMA, the Wilderness Act, and the Wild and Scenic River Act are all statutes enacted by Congress to protect interests in public lands that are not private and economic, and all preserve valid existing rights. The panel’s opinion appears to make it impossible for a member of the public to ensure agencies properly preserve the public interests contained in FLPMA in situations where they conflict with private, economic rights that may predate the statutory protection of public values. It is unclear exactly how broad the negative effects from the opinion may be; however, from the line of cases starting with Data Processing, the financial industry could also be impacted. As argued by Amici, the holding conflicts with Supreme Court and Ninth Circuit precedent in an area of law that is already rife with confusion, and is therefore appropriate for en banc review.