Petition for Writ of Certiorari — Havasupai Tribe v. United States

Supreme Court brief1992

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

THE HAVASUPAI TRIBE,

a Federally Recognized Indian Tribe, et. al.,

Vv.

THE UNITED STATES OF AMERICA, et. al

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Joe P. Sparks

Counsel of Record

Kevin T. Tehan

SPARKS & SILER, P.C.

7503 First Street

Scottsdale, AZ 85251

(602) 949-1339

QUESTIONS PRESENTED

The Grand Canyon Enlargement Act, 16

U.S.C. 228i et. seg. added 185,000 acres

to the Havasupai Indian Reservation and

specifically recited that:

Nothing in Section 228a-

228} of this title shall

be construed to prohibit

access by any member of

the Tribe [Havasupai] to

any sacred or religious

places or burial grounds,

native foods, paints,

materials, and medicines

located on public lands

not covered in Section

228a to 228j of this

Title. Id. 228i(c).

* *& &

By the enactment of

sections 228a to 228j of

this title, the Congress

recognizes and declares

that all right, title and

interest in any lands not

otherwise declared to be

held in trust for the

Havasupai Tribe or

otherwise covered by

sections 228a to 228j of

this title is

extinguished.

Does the language and the legislative

history of the Act, when interpreted

under tenets of construction adopted by

this court affecting Indian Tribes,

preserve or provide access by Congress to

the Tribe or individual Tribal members to

«tie

the Canyon Uranium Mine site,

notwithstanding a prior decision cf the

Indian Claims Commission.

Is a showing of agency bad faith a

prerequisite to discovery in a suit

seeking judicial review of administrative

agency action where the applicant seeking

discovery has challenged the completeness

of the administrative record and seeks to

establish its completeness through such

discovery.

-iii-

LIST OF PARTIES

The parties to the proceedings below were

the Petitioners: The Havasupai Indian Tribe,

a Federally recognized Indian Tribe; Delmer

Uqualla, Issa Uqualla, Clark Jack, Jr., Rex

Tilousi, and Wayne Sinyella.

The Respondents before this Court

include: Chief, United States Forest Service;

Regional Forester, Southwestern Region, United

States Forest Service; Forest Supervisor,

Kaibab National Forest, Southwestern Region,

United States Forest Service; Energy Fuels

Nuclear, Inc., a Colorado Corporation; Energy

Fuels Exploration Company, a Colorado

Corporation; United States of America, the

United States Department of Agriculture,

Forest Service; Secretary of Agriculture.

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED... .cccccccccccccecs ii

LIST OF PARTIES....... ee cecccece iv

OPINIONS BELOW........ Cocccccccccccces ; 1

JURISDICTION... ccccccccccccccccecscecece 2

STATUTE INVOLVED... ccccccccccccccccces 3

STATEMENT OF THE CASE... cccccccccccces 4

REASONS FOR GRANTING THE WRIT......... 13

CONCLUSION......... eeccccccccccccccces : 30

APPENDIX

Order Denying Motion for Rehearing

Before United States Court of

Appeals For The Ninth Circuit

Becee GCSCener 2, ISP ksc ci coeccascecseces a-1

Opinion of United States Court of

Appeals for the Ninth Circuit

DOTOG AUGUST 26, ISPD. cccncccccscccees a-3

Order of United States District

Court for the District of Arizona

DOE EPEA BB y BOG s 6 cess hi ceeeessinans a-14

Grand Canyon Enlargement Act (”GCEA”

ee ee) er eee eee ee eee ee ee a-144

-V=

TABLE OF AUTHORITIES

Cases: Page:

Alaska Pacifi j i 4 7

248 i 78, 89 (1918) wcccccecces e*e#ees? 2 15

ic € usician

v. Wittstein,

STS UiB. BFR, 27S CA97E) wo cccvcoses (nee ee 13

Bryan v. Itasc ° , 426 U.S. 373

SB err re eee 15

Choate v. Trapp, 224 U.S. 665 (1912)...... 15

Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971)... ccccecee 26

No wes j e e otective

Association v. Peterson,

795 F.2d 688, 694 (Ninth Cir. 1986)... 11

Lyng v. Northwest Indian

Cemetery Protective Association,

485 om - 439 (1988) .cccccccccccccccces 11

Solem v. Bartlett,

465 U.S. 463 (1984)....... ea cee eee es 16

Tennaco Oil Co. v. Dept. of Energy,

475 F. Supp. 299, 317 (D. Del. 1979).. 26

Texas Steel Co. v. Donovan,

93 F.R.D. 619, 621 (N.D. Tex. 1982)... 26

The Havasupai Tribe et. al. v. United

States, 20 Ind. Cl. Comm. 210,

7 ey ere ee ee Se ee eras 9

Thompson v. U.S. Dept. of Labor, 885

F.2@ S51. (Gm Cis.) TOGRc s scsccecns ees 27

WwW

Indians v. U.S., 490 F.2d 435,

945 (Ct. Cl.

2O7SE) cccccvececsiccos

> ee 8 @

U.S. Ex. Rel. Hua] ; Indi —

United States v. Gemmill,

Fe Pacific Railroad Co.,

314 U.S.

338,

347 CRORE Cereb eeeeeceeerereeseseeeener

(9th Cir.) Cert. den. sub. nom...

Wilson v. United States, 429 U.S. 982

Clg.) Peer se eee eee ee ee ee ee

Miscellaneous:

5 U.S.C. § 704....

5 U.S.C.

U.S.C.

i Fe oe

U.S.C.

x -

C.F.R.

A HAH HA FH HR HO HE HR GH HHH

i Perr rr rT TTT eT Te Te Te

pe ee ee eae ee

228a-2283.

ZABLE) wa cccacvcccecessives

SORE i cack vine

CREO so cna vues

2281(f)....

Tt eee re

i) Pee

eoeeeeteeese#e

211.18......-.

211.18(f) (6)

-vii-

535 F.2d 1145,

H.R. Rep. 93-1374, 93rd Cong.

24 GOSS. (1974) cccccce [Keekeeteedones 19,23

119 Cong. Rec. No. 43 (daily ed.

March 20, 1973) -cccccccccccccccecccccseces 18

119 Cong. Rec. H6683 (1974)... eeeeees 20

119 Cong. Rec. H10449 (1974)........-. 21,42

-viii-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

THE HAVASUPAI TRIBE,

a Federally Recognized Indian Tribe, et. al.,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA, et. al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for

the Ninth Circuit has not yet been reported.

It appears in the Appendix hereto, p. A-3,

infra.

The opinion of the United States District

Court for the District of Arizona (Strand

D.J.) is ceported at 752, F. Supp. 1471 (D.

Ariz. 1990) and is reprinted in the Appendix

hereto, p. a-14.

JURISDICTION

Invoking federal jurisdiction under 28

U.S.C. § 1362, 28 U.S.C. § 1331, the

Petitioner brought this suit in the District

of Arizona. On April 18, 1990, the District

of Arizona granted Judgment in favor of

Respondents on all Counts of Petitioner’s

Complaint.

On Petitioner’s appeal, the Ninth Circuit

on August 26, 1991, entered a Judgment and an

Opinion affirming the decision of the District

Court. A Petition for Rehearing was filed

with the Ninth Circuit on September 6, 1991.

The Petition for Rehearing was denied on

October 9, 1991.

The jurisdiction of this Court to review

the Judgment of the Ninth Circuit is invoked

under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The Grand Canyon Enlargement Act,

Nothing in sections 228a to 228)

of this title shall be construed

to prohibit access by any

members of the tribe to any

sacred or religious places or

burial grounds, native foods,

paints, materials, and medicines

located on public lands not

otherwise covered in sections

228a to 228j of this title.

x * &

By the enactment of sections

228a to 228} of this title, the

Congress recognizes and declares

that all right, title and

interest in any lands not

otherwise declared to be held in

trust for the Havasupai Tribe or

otherwise covered by sections

228a to 228} of this title is

extinguished.

The statute is set forth in full at

Appendix p. a-144.

U.S.C. § 228i provides in pertinent part:

STATEMENT OF THE CASE

The Petitioner, Havasupai Indian Tribe,

is a federally recognized Indian Tribe which

resides on a federal Indian Reservation

located in the Grand Canyon of Arizona.

Petitioners, Delmer Uqualla, Issa Uqualla,

Clark Jack, Jr., Rex Tilousi, and Wayne

Sinyella are members of the Havasupai Tribe

and, in some instances, Tribal officers.

Petitioners will be collectively referred to

as “the Havasupai Tribe” for purposes of this

Petition.

The Havasupai Tribe has lived within the

area of the Grand Canyon for thousands of

years. This Petition seeks review of

decisions of the Ninth Circuit affirming the

decision of the District Court denying the

Tribe an opportunity to take discovery in an

originally filed District court action

alleging, inter alia, violation of Tribal

rights, and violation of a right of access to

sacred areas conferred by Congress under the

-4-

Grand Canyon Enlargement Act of 1975, 16

U.S.C. § 228i ("GCEA"). The denial of

discovery also applied to separate claims made

by the Tribe against Energy Fuels Nuclear

which were not part of the administrative

process.

In October, 1984, Energy Fuels Nuclear

(EFN), filed with the United States Forest

Service, Kaibab National Forest, a Plan of

Operation for development of the Canyon

Uranium Mine. The Canyon Uranium Mine is

located approximately 35 miles Southwest and

upstream of the Havasupai Reservation. It is

undisputed that the Canyon Mine Site is

located within the aboriginal use area of the

Havasupai Tribe and is located on public land

within the Kaibab National Forest.

On September 26, 1986, the Forest

Supervisor, Leonard Lindquist, issued a Record

of Decision approving EFN’s modified Plan of

Operation for the Canyon Mine. Pursuant to 36

C.F.R. § 211.18, the Tribe appealed the Forest

-5-

Supervisor’s decision to the Regional

Forester. The Regional Forester affirmed the

Forest Supervisor’s decision on August 28,

1987. The Chief of the Forest Service

affirmed the Regional Forester’s Review on

June 9, 1988.

The undisputed chronology of events

reflects review of the EFN Plan of Operation

by three separate levels within the Forest

Service during the period from October, 1984

through June 1988.

On June 16, 1988, the Tribe filed suit

challenging the authority of the Forest

Service to approve a Plan of Operation for the

Canyon Uranium Mine. The Complaint alleged

violation of first amendment rights to freedom

of religion; violation of right of access;

breach of fiduciary duty by the Forest

Service; and violation of the National

Environmental Policy Act, 42 U.S.C. § 4321

regarding deficiencies in the preparation of

an Environmental Impact Statement for the

-6-

Canyon Uranium Mine. The Complaint further

alleged that development and operation of the

Canyon Uranium Mine by Energy Fuels Nuclear

would unlawfully deny the Tribe’s access to a

place held sacred and religious by them and

would violate their aboriginal right of access

acknowledged, confirmed, and reserved by the

United States for the beneficial use and

enjoyment of the Havasupai Tribe.

This District Court, in a preliminary

ruling dated July 28, 1988, ordered that any

evidence not within the “Administrative

Record” would not be admitted and that the

Tribe was barred from taking any discovery, of

any kind, including discovery of the Forest

Service papers, documents, or any company or

individual listed in the EIS as a “preparer”

and also prohibited the Tribe from taking

discovery from EFN or admitting evidence

relating to the separate claims against EFN.

The Tribe thereafter on August 12, 1988

moved for production of the entire

o-J=

Administrative Record which was denied by the

District Court on September 8, 1988.

On April 18, 1991, the District Court

entered a comprehensive order denying the

relief requested by the Tribe under all counts

and affirming the decision of the Chief of the

Forest Service approving the modified Plan of

Operation for the Canyon Uranium Mine.

On appeal to the Court of Appeals, the

Tribe raised three issues:

i. Whether the District Court’s denial

of any discovery or introducing

evidence was error;

Whether the District Court erred in

finding that the Environmental

Impact Statement for the Canyon Mine

contains a reasonably thorough

discussion of the Canyon Uranium

Mine Proposal; and

3 Whether the District Court erred in

finding that the Grand Canyon Park

Enlargement Act of 1975 did not

preserve for the Tribe a right of

access to the Canyon Uranium Mine

Site.

The District Court determined that the

language of the GCEA provided no basis for a

claim of a right of access since aboriginal

-8-

title had supposedly been “extinguished”

through a determination of the Indian Claims

Commission. The Havasupai Tribe et. al. v.

United States, 20 Ind. Cl. Comm. 210, 234

(1968). Significantly, the District Court

also stated in its opinion that an

extinguishment depends upon the action of

Congress and not by any activity of the

executive branch’ and that the Commission had

no authority itself to extinguish title.?

The Ninth Circuit, in its opinion of

August 26, 1991 affirmed the holding of the

District finding that aboriginal title had

been extinguished citing United States v.

Gemmill, 535 F.2d 1145, 1148-49 (9th Cir.)

Cert. den. sub. nom. Wilson v. United States,

429 U.S. 982 (1976). In applying the

rationale advanced in Gemmill, the Ninth

Circuit did not point to a specific Act of

District Court Opinion p. a-25.

Appendix p. a-29.

Congress which clearly and unambiguously

extinguished aboriginal title, but instead

examined a series of events regarding activity

before the Indian Claims Commission.

Significantly, the Ninth Circuit, as well

as the District Court failed to explain or

comment upon the necessity or operation of §

228(f) of the Act which provided:

By the enactment of the Sections

228a to 228j of this title, the

Congress recognizes and declares

that all right, title, and

interest in any lands not

otherwise declared to be held in

trust for the Havasupai Tribe,

or otherwise covered by Section

228a to 228} of this title is

extinguished.

Both opinions failed to explain the

determination of Congress that a declaration

of extinguishment of aboriginal title was

necessary as found in 16 U.S.C. § 228i(f) in

light of the earlier extinguishment suggested

in both opinions.

The Ninth Circuit Court’s opinion also

did not comment or explain how its affirmation

-10-

of the District Court’s interpretation of the

GCEA could be reconciled with the Ninth

Circuit’s earlier analysis of the GCEA as

evidence of Congressional action to protect

and preserve access to religious sites.*

The Ninth Circuit also affirmed the

District Court’s determination that the Tribe

would not be entitled to any discovery (even

discovery to determine if the entire

administrative record was in fact before the

reviewing District Court) since no showing of

bad faith had been made or that the

administrative officer had relied on materials

outside of the record.” The Ninth Circuit

further noted that discovery beyond the

administrative record is permitted where it is

clear that the agency considered documents

4 Northwest Indian Cemetery Protective

Association v. Peterson, 795 F.2d 688, 694 n.8

(Ninth Cir. 1986) reversed sub. nom. on other

grounds. Lyng v. Northwest Indian Cemetery

Protective Association, 485 U.S. 439 (1988).

> Appendix p. a-9.

-l1l-

outside of that record when arriving at its

conclusion.® The Ninth Circuit opinion did

not comment upon or explain why the

“administrative record” produced by the Fores’

Service did not include thousands of pages of

additional records on the Canyon Uranium Mine

in the admitted possession of the Forest

Service, but never included in the record.

Appendix p. a-9.

-12-

REASONS FOR GRANTING THE WRIT

I. The Ninth Circuit’s Interpretation of the

Havasupai Access Provisions of the GCEA

Conflicts With Decisions of this Court.

Without Congressional authorization, and

contrary to an express ext inquishhent by

congress in the subject statute, the Ninth

Circuit has determined that executive action

taken by a quasi judicial board such as the

Indian Claims Commission has extinguished

aboriginal title and therefore denied access

to the Havasupai Tribe to a sacred site

despite a specific Congressional statute which

(a) recognizes such access, and (b) by express

language “extinguishes” aboriginal title (as

only Congress can do).

This petition raises an important

question of first impression before this court

warranting exercise of the court’s juris-

diction regarding construction of the GCEA and

its recognition of the Havasupai Tribe’s right

of access to the Canyon Uranium Mine site.

See American Federation of Musicians v.

-13-

Wittstein, 379 U.S. 171, 175 (1974). Both the

District Court and the Ninth Circuit

determined that the Indian Claims Commission

extinguished all rights that the Havasupai

Tribe might have to the Canyon Mine site, yet

this court has determined that the executive

branch does not have jurisdiction to

extinguish title, that power rests exclusively

with Congress. U.S. Ex. Rel. Hualapai Indians

v. Santa Fe Pacific Railroad Co., 314 U.S.

338, 347 (1941). Pursuant to Article I,

Section 8.3 of the United States Constitution,

on Congress has the power and authority to

extinguish title. The unilateral action of

the executive branch cannot eliminate Indian

title. Turtle Mountain Band of Chippewa

Indians v. U.S., 490 F.2d 435, 945 (Ct. Cl.

1974).

The unique status of Indian Tribes ana

their relationship with the United States has

created a body of law established by this

court for the construction of statutes

-14-

affecting Indians are to be liberally

construed in their favor. Bryan v. Itasca

County, 426 U.S. 373 at 391 (1926); Alaska

Pacific Fisheries v. U.S., 248 U.S. 78, 89

(1918). Doubtful expressions, instead of

being resolved in favor of the United States,

are to be resolved in favor of the concerned

Indian Tribe. Choate v. Trapp, 224 U.S. 665

(1912). Neither the District Court, nor the

Court of Appeals opinions included any

discussion of the application of this rule of

construction to Section 228i of the GCEA.

The Forest Service does not dispute that

the Tribe has a religion, nor does the Forest

Service take issue with the fact that the

Canyon Mine site may have special significance

to that religion. Section 228i(c) does in

fact reserve to the Tribe access rights to

"sacred or religious places” greater than

those of the public. The District Court

simply interpreted the words as an expression

of statutory neutrality’ and a preservation of

-15-

access by the Tribe similar to that enjoyed by

any member of the public. 8

The primary factors for a court to

consider to determine Congressional intent

respecting this issue are: (1) the statutory

language of the GCEA; (2) the events

surrounding its passage; and (3) the

subsequent treatment of the land after passage

of the Act. Solem v. Bartlett, 465 U.S. 463

(1984). A review of the language of the GCEA

and the events surrounding its passage as well

as the Havasupai use of land in their

aboriginal area after the Indian Claim

Commission decision shows Congress’ intent to

confirm and preserve a right of access to

sacred places found in § 228i(c) of the GCEA.

Congress intended to make clear that by

extinguishing all right, title, and interest

of the Havasupai Tribe to lands not in the

District Court Opinion p. a-50.

-16-

enlarged Reservation or in the “"Havasupai Use

Lands” in the Grand Canyon National Park, it

was preserving or allowing right of access by

members of the Tribe to any sacred or

religious places or burial grounds, paints,

materials, and medicines on public lands.

Two entire provisions of the GCEA are

rendered superfluous by the District Court’s

opinion: Sections 228i(c) and 228i(f).

Congress had no need to provide access to

public lands by the Havasupai equal to that of

any other member of the public, since nothing

in the GCEA prohibited access of the Havasupai

Tribe. If all rights of the Havasupai through

aboriginal title had been extinguished via the

Indian Claims Commission, Congress would have

needed no express extinguishment as found in §

228i(f).

The legislative history of the GCEA shows

that protection of the Havasupai Tribe living

in and around the Grand Canyon was considered

"first and foremost" by the sponsors of the

-17-

Act. ?

Specifically, Congress indicated that th

Havasupai were regarded by other Indian Tribe:

as “the keepers of the Grand Canyon and its

sacred places”. 1°

The actual return in trust to the

Havasupai of some of their plateau lands and

sacred places was considered “essential”.11

The fact that “most, but not all, of the

restorations sought by the Havasupai people?

9 119 Cong. Rec. No. 43 (daily ed. March 20

1973), Statements on Introduced Bills and

Resolutions.

By Mr. Goldwater (for himself,

Mr. Beall, Mr. Brock, Mr.

Buckley, Mr. Curtis, Mr.

Dominick, Mr. Ervin, Mr. Fannin,

Mr. Hatfield, Mr. Helms, Mr.

Hollings, Mr. Hruska, Mr.

Humphrey, Mr. Javits, Mr.

Kennedy, Mr. Mansfield, Mr.

McGovern, Mr. Moss, Mr.

Packwood, Mr. Percy, Mr. Scott

of Pennsylvania, and Mr.

Thurmound).

10 Id., Goldwater, at 2.

11 Id., Goldwater, at 2.

12 Id., Goldwater, at 2.

(Cont. )

-18-

were being restored in trust to the Tribe was

clear.

The legislative history of the GCEA

reflects that Congress clearly understood that

the Havasupai Tribe’s situation and history

13. Rven after the claims case

was unique.

which the Ninth Circuit held as pivotal,

Congress recognized that the Havasupai

continued to use large areas of the Grand

Canyon National Park and Kaibab National

Forest, /4 and expressly sanction Havasupai

13. the House of Representative’s Report on

the GCEA stated:

"The Havasupai situation is

unique. The Indian Claims

Commission allowed them

compensation for their

aboriginal lands without offset,

even though they continued to

use a rather large area for

grazing to the exclusion of

others. Moreover, Congress

expressly sanctioned the use of

lands within the Grand Canyon

National Park by members of the

Havasupai Tribe .. .”. (H.-R.

Rep. 93-1374, 93rd Cong. 2nd

Sess. 9 (1974)).

(Cont. )

-19-

Tribe use of lands within the aboriginal

area.

Moreover, a review of floor debate on th

GCEA clearly demonstrates that the claim of

prior extinguishment of Havasupai aboriginal

title through action of the Indian Claims

Commission was raised as a major objection to

the Act due to the possible precedential

effect of a transfer. The continued uses mad

by the Havasupai of the National Park and

National Forest was intensely debated. It ha

“become an emotional national issue.*1°

14 Id. at 8.

15 119 Cong. Rec. H6683 (1974), Udall:

There are, in my opinion,

equities on both sides of what

has become an emotional national

issue. There has been a great

deal of debate over whether or

not the Havasupai Tribe’s

aboriginal title to this land

was extinguished by a 1969

settlement before the Indian

Claims Commission whereby the

Tribe agreed to accept $1.24

million for its claim that 2.5

million acres were “taken” by

the U.S. Government.

(Cont. )

-20-

purpose of § 228i(c) as being merely a

statement of neutrality showing that the

Havasupai were to have the same rights as

other members of the public, ignored the

extensive debate where opponents argued that

no statutory language was necessary to

preserve the uses that the Havasupai were

acknowledged to still be making of park and

forest lands, including religious uses.

The Trial court, which attributed the

x & &

Advocates for the Tribe point

out that the Claims Commission

has no authority to extinguish

aboriginal title, that only

Congress can do so. Indeed, as

the Supreme Court has stated,

"the power of Congress in that

regard is supreme.” (U.S. Vv.

Santa Fe Pacific R. Co., 314

U.S. 339, 347 (1941). Congress

is the final arbiter of matters

of Indian land title and can

create, enlarge, or modify

Indian reservations as it deems

necessary.

119 Cong. Rec. H10449 (1974). See, Yates,

Rhodes, and Udall at H10439, H10440; see also

Foley, Dellenback, and Steiger at H10441; see

(Cont. )

-21-

A major sponsor of the GCEA emphasized

the purpose was to protect the rights of the

Havasupai.

There are two reputable,

responsible points of view

here. I take the view that we

will do justice to the tribe

today by voting up the committee

amendment. The purpose is to

protect the }ggitimate rights of

the Indians.

Finally, the debate and previous action b'

Congress recognized the disagreement about

whether title had been extinguished by the

Indian Claims decision, or the appropriation

of the judgment award by Congress. 18

also, Seiberling, Udall, Foley, Rhodes at

H10442; see also, Meeds, Steiger, Rhodes at

H10443.

17 Id., 119 Cong. Rec. H10449 (1974), Udall:

18 Id., 119 Cong. Rec. H10441 (1974), Foley:

I would like to emphasize that

the money has been appropriated

by the Congress, it has been

partially distributed to the

Tribe, and the claim is

therefore fully and legally

settled. [Emphasis added].

-22-

For those insisting that title had

already been extinguished, the earlier

Committee Report states that:

"this action is in the nature of

a grant by the Congress, and

since the uses to be permitted

are limited, the legislation

requires no consideration to be

paid by the tribe for the

benefits conferred and it

finally settles the question of

title to the land. [Emphasis

added].

For those claiming title had not been

extinguished, Congress preserved limited

rights to the Havasupai on public lands not

covered by 16 U.S.C. 228i with the language of

§ 228i(c).

Finally, Congress determined that the

question of title must be resolved and

included the express provision of 16 U.S.C. §

228i(f).

II. Denial of Discovery to the Tribe to

Determine Completeness of the

"Administrative Record" Before the Trial

19 H.R. Rep. No. 93-1374 93rd Cong. 2d Sess.

11 (1974).

-23-

Court Conflicts With Decisions of this

Court.

What the Forest Service labeled as the

“Administrative Record” complied during the

Havasupai Tribe’s administrative appeal of th

forest Supervisor’s September 26, 1986

decision to approve the Canyon Uranium Mine,

the District Court below did not find, and th

Forest Service has never contended that the

“Administrative Record” filed in this case

contains all documents and materials directly

or indirectly considered by the Forest Servic

in the investigation, review, and approval of

the Plan of Operation for the Canyon Uranium

Mine.

In briefing before the Ninth Circuit,

Respondent Energy Fuels Nuclear (”EFN”)

contended that the record before the District

Court comprised all the material before the

Chief of the Forest Service when a final

decision was made on June 6, 1988. EFN cited

in the record to two declaration of Forest

-24-

Service personnel, Mr. Branson and Mr.

Unger. But neither of these declarations

support the claim of EFN that the

administrative record before the Trial Court

contained all materials that was before the

Forest Service Chief before the Ninth Circuit.

At the Ninth Circuit the Forest Service

contended that, pursuant to 36 C.F.R. §

211.18(f) (6), the Chief’s June 6, 1988

decision was "final agency action" and

therefore the administrative record" only need

include those documents actually relied

upon. EFN argued that only final agency

actions are reviewed by courts and not

decisions which are preliminary or

procedural. Section 704 of the Administrative

Procedures Act provides that "a preliminary,

procedural or intermediate agency action not

directly reviewable is subject to review on

the review of the final agency action".

A litigant may conduct discovery beyond

the "administrative record" to determine

-25-

whether the record is complete on

demonstrating some reasonable basis for

believing the records incomplete. No showin

of bad faith, as reflected in the opinion of

the Ninth Circuit is required. Texas Steel

Co. v. Donovan, 93 F.R.D. 619, 621 (N.D. Tex

1982); Tennaco Oil Co. v. Dept. of Energy, 4

F. Supp. 299, 317 (D. Del. 1979). In Citize

to serve Overto v. Voipe, 401 U.S.

402 (1971) this court noted that the

“thorough”, “probing” and “in depth” review |

the agency decision is to be based on the

“whole record” compiled by the agency; the

basis of review as required under Section 70

of the Administrative Procedure Act. Id. 41

419.

Absent a complete administrative record

which includes all the documents compiled ani

considered by the agency, reviewing courts a

unable to conduct a thorough, in depth,

probing review “of agency action”. Such a

review is thwarted if the court receives oni

-26-

select documents which the agency chooses to

include in the record.

The “whole” administrative record in a

case requiring judicial review of agency

action comprises all documents and materials

directly or indirectly considered by the

agency decision makers. Thompson v. U.S.

Dept. of Labor, 885 F.2d 551 (9th Cir.)

1989. The Tribe, in its papers to the Ninth

Circuit presented correspondence from the

Forest Service indicating that records

consisting of an estimated 14,400 pages of

material regarding the Canyon Uranium Mine

were contained in the Forest service

files.?° This estimate is almost three times

20 By letter to Tribal counsel dated November

29, 1988, the Forest Supervisor stated:

I do wish to note that

processing your request will be

a formidable task. The Canyon

Uranium Mine records are

voluminous. In this office

alone, they comprise nearly four

full file drawers. Based on a

conversion factor of 200 pages

per inch for the six feet of

(Cont. )

o27=

the “administrative record” produced by the

Forest Service in District Court which ran

approximately 5,000 pages in length.

It is clear that the so called “adminis-

trative record” filed below does not contain

all documents directly or indirectly compiled

or considered by all levels of the Forest

Service in rendering its decision to approve

the Canyon Uranium Mine.

This court can illuminate its previous

rulings regarding the nature of the

administrative record required to be compiled

by administrative agencies and produced as

part of a judicial review of administrative

agency action.

Having determined that the Tribe had no

access to the Canyon Uranium Mine provided

material on hand, we estimate

that the supervisor’s office

file contains approximately

14,400 pages. Another full file

drawer of Canyon Mine records

are located in the office of the

Tusayan Ranger District.

-28-

under the Grand Canyon Enlargement Act, the

District Court further determined that no

fiduciary duty toward the Havasupai Tribe was

created thereby and dismissed this breach of

fiduciary duty clain.

-29-

CONCLUSION

The Ninth Circuit has thus interpreted a

federal statute of major importance in a

manner inconsistent with the prior rules of

construction established by this court.

Plenary consideration of the matter by this

Court is essential.

For these various reasons the Petition

for Certiorari should be granted.

Respectfully submitted,

Joe P. Sparks

Counsel of Record

Kevin T. Tehan

SPARKS & SILER, P.C.

7503 First Street

Scottsdale, AZ 85251

(602) 949-1339

-30-

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAVASUPAI TRIBE, a federally

recognized Indian Tribe;

DELMER UQUALLA; ISSA

UQUALLA; CLARK JACK, JR.,;

REX TILOUSI; WAYNE SINYELLA,

Vv.

F. DALE ROBERTSON, in his

official capacity as Chief,

United States Forest Service

SOTERO MUNIZ, in his official)

capacity as Regional )

Forester, Southwestern )

Region, United States )

Forest Service; LEONARD )

)

Plaintiffs-Appellants, )

)

;)

LINDQUIST, in his official

capacity as Forest

Supervisor, Kaibab National

Forest, Southwestern Region, )

United States Forest Service; )

ENERGY FUELS NUCLEAR, INC., 4)

Colorado Corporation; ENERGY )

FUELS EXPLORATION COMPANY, a )

Colorado Corporation; UNITED )

STATES OF AMERICA, the United)

States Department of )

Agriculture, Forest Service; )

RICHARD LYNG, in his official)

capacity as Secretary of

Agriculture,

Defendants-Appellees.

a ee ee ee eee

APPENDIX a~1

No. 90-15956

D.C. No.

CV-88-0971-RGS

(District of

Arizona)

ORDER

Before: HUG, SCHROEDER, and WIGGINS,

Circuit Judges.

The appellants’ petition for rehearing i

denied.

HAV-104417

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAVASUPAI TRIBE, a federally

recognized Indian Tribe;

DELMER UQUALLA; ISSA

UQUALLA; CLARK JACK, JR.,;

REX TILOUSI; WAYNE SINYELLA,

Plaintiffs-Appellants,

official capacity as Chief,

United States Forest Service;

SOTERO MUNIZ, in his official

capacity as Regional

Forester, Southwestern

Region, United States

Forest Service; LEONARD

LINDQUIST, in his official

capacity as Forest

Supervisor, Kaibab National

Fo~est, Southwestern Region, )

United States Forest Service; )

ENERGY FUELS NUCLEAR, INC., a)

Colorado Corporation; ENERGY )

FUELS EXPLORATION COMPANY, a )

Colorado Corporation; UNITED )

STATES OF AMERICA, the United)

States Department of )

Agriculture, Forest Service; )

RICHARD LYNG, in his official)

capacity as Secretary of

Agriculture,

)

F. DALE ROBERTSON, in his )

)

Defendants~-Appellees.

)

No. 90-15956

D.C. No.

CV-88-0971-RGS

OPINION

Appeal from the United States District Court

for the District of Arizona

Roger G. Strand, District Judge, Presiding

Argued and Submitted

June 11, 1991 - San Francisco, California

Filed August 26, 1991

Before: Procter Hug, Jr., Mary M. Schroeder

and Charles Wiggins, Circuit Judges.

Per Curiam

SUMMARY

Administrative Law

Affirming a district court judgment up-

holding the Forest Service’s approval of

development of a uranium mine, the court of

appeals held that the district court did not

err in limiting its review to the administra-

tive record complied by the Forest Service in

considering the Havasupai Tribe’s NEPA claims.

Appellant, the Havasupai Tribe,

challenged a decision by the Forest Service

approving development of a uranium mine in the

area of the Grand Canyon, arguing that the

land involved is an area of religious signifi-

cance to them, and that the Forest Service did

not adequately consider the effect of such a

mine on their water supply. The Tribe argued

the district court erred by barring discovery

and limiting review to the administrative

record filed by the Forest Service; the Plan

interfered with the Tribe’s aboriginal right

of access to the mine site, and the EIS pre-

pared by the Forest Service violated the

National Environmental Policy Act (NEPA).

[1] Because the Tribe pointed to nothing

in support of its contention that the Forest

Service acted in bad faith or relied on

materials outside the administrative record,

the district court did not err by barring

discovery. Although the Tribe was correct

that discovery beyond the administrative

record is permitted where it is clear that the

agency considered documents outside of that

record in reaching its conclusion, the Tribe’s

claim that the agency considered such evidence

a-5

in this case was purely speculative. [2]

Concerning the Tribe’s claim that the -e was

inadequate consideration by the government of

the effects of the mining of groundwater that

supplies the Tribe’s water, the Service’s

decision not to supplement the EIS in light

of the information brought forth by the Tribe

was not unreasonable. The Tribe was basing

its arguments upon disagreements among

experts. Such disagreements do not invalidate

an EIS. The district court review fulfilled

its role in reviewing an EIS.

(3}] If the Grand Canyon National Park

Enlargement Act were the legislative action

through which the Havasupais’ aboriginal title

to the area was extinguished, the Tribe’s

Claim of a right of access to the mine would

have significant merit. However, that was not

the case. In 1969, Congress had compensated

the Trite for the taking of this land in

1880. Once Congress compensated the Tribe,

aboriginal title was extinguished.

a-6

COUNSEL

Joe P. Sparks and Michael Shiel, Scottsdale,

Arizona, for the plaintiffs-appellants.

Lawrence E. Stevens, Parson, Behle & Latimer,

Salt Lake City, Utah, for the defendant-

appellee Energy Fuels.

Jacques B. Gelin, Department of Justice,

Washington, D.C., for the defendant-appellee

United States Government.

OPINION

PER CURIAM:

The Havasupai Tribe appeals the district

court’s affirmance of the decision of the

Forest Service, which approved the development

of a uranium mine in the area of the Grand

Canyon. The Tribe has opposed the develop-

ment, arguing that the plot of land involved

is an area of religious significance to then,

and that the Forest Service did not adequately

consider the effect of such a mine on their

water supply.

In this appeal the Tribe contents that

(1) the district court erred by barring

discovery and limiting review to the admini-

strative record filed by the Forest Service,

(2) the Plan interfered with the Tribe’s

aboriginal right of access of the mine site,

and (3) the Environmental Impact Statement

(EIS) prepared by the Forest Service violatec

the National Environmental Policy Act, 42

U.S.C. §§ 4321 et seq. (NEPA).

The district court considered the

appellants’ challenges in a lengthy and care-

fully reasoned opinion. vasupai Vv.

United States, 752 F.Supp. 1471 (D. Ariz.

1990). We agree with the district court’s

reasoning, and indeed the appellant itself

commendably does not quarrel with most of

it. We therefore affirn.

[1] Appellants argue strenuously that

the district court should not have limited it

review to the administrative record complied

by the Forest Service in considering the

a-8

appellants’ NEPA claims. The Tribe is correct

in its argument that discovery beyond the

administrative record is permitted where it is

clear that the agency considered documents

outside of that record in reaching its con-

clusion. The Tribe’s claim that the agency

considered such evidence in this case, how-

ever, is purely speculative. Because the

Tribe has pointed to nothing in support of its

contention that the Chief of the Forest

Service acted in bad faith or relied on

materials outside the administrative record,

the district court did not err by barring

discovery. See Animal Defense Council v.

Hodel, 840 F.2d 1432, 1436-37 (9th Cir. 1988)

modified, 867 F.2d 1244 (9th Cir. 1989).

The Tribe’s most troubling claim is that

there was inadequate consideration by the

government of the effects of the mining on

groundwater which supplies the Tribe’s

water. In support of this claim, however, the

Tribe relies upon the contentions of Dr. David

a-9

————————————

Kramer, which were made in a letter drafted

after the final EIS issued. The Tribe had

some obligation to raise these issues during

the comment process. Its views were soli-

cited. Absent exceptional circumstances, suc

belatedly raised issues may not form a basis

for reversal of an agency decision. Vermont

e W Vv. , 435 U.S.

519, 553-54 (1978).

{2} Nevertheless, the district court

addressed this claim and determined that the

Forest Service had adequately considered the

issues that the Tribe was raising. The

Service’s decision not to supplement the EIS

in light of the information brought forth by

the Tribe was not unreasonable. The district

court concluded that the Tribe was “basing

[its] arguments upon disagreements among

experts.” 752 F. Supp. at 1502. It then

correctly noted that “disagreement among

experts does not invalidate an EIS.” Id. Se

Cady v. Morton, 527 F.2d 786, 796 (9th Cir.

a-10

1975). Contrary to the Tribe’s contention,

the district court was not required to under-

take a de novo review of the Forest Service’s

plan. See 5 U.S.C. § 706 (court reviews

agency action for arbitrariness or abuse of

discretion). What the district court did

fulfilled its role in reviewing an EIS.

The Tribe also claims a right of access,

essentially amounting to an easement, to the

area that includes the mine site. This claim

is based on an argument that until the 1970’s,

when the Grand Canyon National Park

Enlargement Act, 16 U.S.C. § 228i ("GCEA"),

was passed, the Tribe retained aboriginal

title to that land. The GCEA includes a pro-~

vision that states that it is not to be

construed as depriving the Tribe of access to

its religious sites. Since the GCEA is what

extinguished aboriginal title, the Tribe

claims, this provision works as a condition

upon the Tribe’s relinquishment, and pursuant

to it the Tribe retained part of the “bundle

a-1l

of rights” -- namely, an easement to any reli

gious site included within the land it gave

up.

[3] If the GCEA were the legislative

action through which the Havasupais’ abori-

ginal title to the area was extingusihed, the

Tribe’s argument on that issue would have

significant merit. Such, however, is not the

case. In 1969, the Indian Claims Commission

ordered Congress to pay, and Congress did pay

compensation to the Havasupai for this land,

based on the Commission’s finding that

Congress had taken the land in 1880. This

finding, in turn, was made after a hearing ir

which the Havasupai presented evidence that

such a taking had occurred at that time. Onc

Congress compensated the Tribe, aboriginal

title was extinguished. See United States v.

Gemmill, 535 F.2d 1145, 1148-49 (9th Cir. 9),

cert. denied sub nom. Wilson v. United States

429 U.S. 982 (1976).

For these and the reasons stated by the

district court, the judgment is AFFIRMED.

HAV-104419

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

THE HAVASUPAI TRIBE,

et. al.,

Plaintiffs,

Vv. CIV 88-971 PHX-RGS

UNITED STATES OF AMERICA,

the United States

Department of Agriculture,

Forest Service, et. al.,

ORDER

Defendants.

me ee ee ee ee ee ee ee ee ee

I. INTRODUCTION.

Plaintiffs, the Havasupai Tribe and

individual members of the Tribe, seek judicial

review of the final decision by the Chief of

the Forest Service to approve a modified Plan

of Operations (the “Plan”) submitted by co-

defendant Energy Fuels Nuclear, Inc. in

October 1984 for the Canyon Uranium Mine

located in the Kaibab National Forest near the

Grand Canyon National Park. Defendants in

this action are: The united States of

America, the Department of Agriculture, Forest

Service; the Secretary of Agriculture; Chief

of the Forest Service; the Regional Forester

of the Southwest Region; the Forest Supervisor

of the Kaibab National Forest (collectively

referred to as the “federal defendants”) ;

Energy Fuels Nuclear, Inc. (*”EFN”) and Energy

Fuels Exploration Company, a corporation

(collectively referred to as “Energy Fuel”).

Plaintiffs challenge the Forest Service’s

decision approving the Plan on four grounds.

First, plaintiffs allege that the approval of

the Plan by the Forest Service violates

plaintiffs’ first amendment rights to freely

exercise their religion at the Canyon Mine

site. Second, plaintiffs assert that the

actions of both the Forest Service and EFN

violate the plaintiffs’ aboriginal right of

access to the Canyon Mine site. Third,

plaintiffs argue that the Forest Service

breached its fiduciary duties owed to the

plaintiffs by failing to preserve plaintiffs’

alleged right of access to the Canyon Mine

a-15

site. Fourth, plaintiffs allege that the

Environmental Impact Statement (”EIS”) is

deficient and fails to comply with the

National Environmental Policy Act, 42 U.S.C. §

4321 et. seg. ("NEPA"). Plaintiffs seek

declaratory and permanent injunctive relief

under the first three claims, and on their

fourth claim, request that the court declare

the EIS inadequate and other the Forest

Service to prepare an EIS in compliance with

NEPA. +

The matter before the court has been

extensively briefed and argued by the

parties. Having considered the

i By Order dated July 29, 1988, the court

determined that review in this case would be

limited to the administrative record. The

federal defendants have filed 14 volumes

comprising the administrative record. By

Order dated September 8, 1988, the court

denied plaintiffs’ motion to produce, motion

to take discovery, and motion to strike. The

court granted plaintiffs’ motion to establish

a uniform system of citation to the record.

Citations to the administrative record are to

Volume - Document - Page (V.__-D.__-P.__).

2 The arguments were based upon the

(Cont. )

a-16

administrative record, the memoranda of the

parties and their positions at oral argument,

the file in this matter, and the pertinent

legal authority, the court now renders its

decision.

II. BACKGROUND.

In October 1984, Energy Fuels Nuclear,

Inc. submitted to the United State Forest

Service, Kaibab National Forest, a Plan of

Operations for Canyon Mine site, pursuant to

Forest Service regulations, 36 C.F.R. § 228,

Subpart A. EFN’s Plan proposed the

development of a uranium mine on an unpatented

mining claim located on the Tusayan Ranger

District of the Kaibab National Forest in

Coconino County, Arizona.

The Canyon Mine site is located on land

which was part of the original Grand Canyon

administrative record and the court took

judicial notice of legislative history and

various documents as they related to the legal

arguments made by the parties.

Forest Reserve established in 1893 pursuant to

the Forest Reservation Act of 1891. In 1908,

the area was incorporated into the Coconino

National Forest. Between 1908 and 1934, the

area in dispute undersent numerous

administrative name changes, however, the area

officially became part of the Kaibab National

Forest, in 1934. The Canyon Mine site is

approximately thirty-five miles southeast and

upstream from the Havasupai Reservation.

The Canyon Mine involves the underground

mining of breccia pipe uranium deposits. The

Canyon Mine site will require disturbance of

approximately seventeen acres for the mine

shaft and surface facilities. EFN has

conducted exploratory drilling on the site

during the period between 1978-1985 (excluding

1979). See generally, V.4B-D.215-P.4664; Id.

at P.4652 (affidavits setting out history of

development at the Canyon Mine site).

The Havasupai are a federally recognized

Indian Tribe who have made their home in and

a-18

around the Grand Canyon located in Northern

Arizona since before the first contact with

Europeans. °

It is undisputed that plaintiffs’

aboriginal lands once encompassed the Canyon

Mine site. Plaintiffs contend that the

location proposed for the Canyon Mine is a

sacred and religious place for the members of

the Havasupai Tribe. Plaintiffs believe that

complete development of the Canyon Mine will

deny plaintiffs’ access to their sacred site

and destroy the very essence of their

religious and cultural system. E.q., V.2B-

D.59-P.1827 (Transcript of Oral Presentation

before the Deputy Regional Forester, May 14,

1987); V.3B-D.122-P.3137-3143 (Affidavit of

Four Havasupai Tribe members); V.3D-D.176-

P.3716-3825 (Transcript of Oral Presentation

before the Chief of the Forest Service,

February 25, 1987).

3 For a detailed discussion on the history

of the Havasupai Tribe, see S. Hirst, Havasua

Baaja: People of the Green Blue Water (1985).

Following submission of the Plan by EFN,

the Forest Service distributed more than 100

copies of the Plan to interested parties. The

Forest Service received over 200 letters in

response to requests for written comment.

Analysis of these comments and input from

several public meetings made it clear there

was substantial public concern and controversy

about the proposal and its potential effects

on the quality of the human environment.

Consequently, the Forest Service, pursuant to

NEPA, decided to prepare an EIS. The notice

of the decision to prepare an EIS, which

formally begins the scoping process, was

published in the Federal Register on April 30,

1985. 50 Fed. Reg. 18281. Following the

decision to prepare an EIS, the Forest Service

distributed more than 2,000 scoping letters to

federal, state, and local government agencies,

Indian tribes, news media and other interested

individuals in preparation for a public

scoping session to be held in Flagstaff,

a-20

—_

Arizona on May 15, 1985. As a result of the

scoping process, the Forest Service identified

the principal areas of concern to be addressed

in the EIS.

The Forest Service prepared a draft EIS

considering various alternatives and released

it to the public for comment on February 28,

1986. The deadline for public comment was May

1, 1986. The Forest Service released a final

EIS, which was revised to reflect the comments

received on the draft EIS, on September 29,

1986. On September 26, 1986, Forest

Supervisor, Leonard Lindquist, issued his

Record of Decision documenting the approval of

the modified Plan of Operations.

On November 10, 1986 following the

issuance of the Record of Decision approving

the modified Plan of Operations, plaintiffs

and others filed a timely appeal from the

Forest Supervisor’s decision with the Regional

Forester, pursuant to 36 C.F.R. § 211.18.

Appellants also sought a stay of site

a-21

preparation and drilling pending the appeal.

On November 21, 1986, the Regional Forester,

Sotero Muniz, stayed the drilling of the

uranium mine pending appeal, but authorized

commencement of the mine site preparation

activities. j

On February 17, 1987, the Forest

Supervisor filed his responsive statement wit!

the Regional Forester and the public. On

August 28, 1987, the Regional Forester

affirmed the Forest Supervisor’s decision on

the merits. On September 25, 1987, plaintiff:

and others appealed from the Regional

Forester’s decision to the Chief of the Fores’

Service, pursuant to 36 C.F.R. § 211.18, and

again sought. a stay of drilling at the site.

On October 22, 1987, the Chief of the Forest

Service continued the stay that had been

issued by the Regional Forester. On June 9,

1988, the Chief of the Forest Service issued

his decision affirming the Regional Forester’:

decision of August 28, 1987. The Secretary o

a-22

Agriculture decided neither to review the

procedural appeal nor the appeal on the merits

so the Cheif’s decisions became the agency’s

final determination.

Plaintiffs brought the instant suit

seeking review of the agency’s final

decision. Following a hearing on the

plaintiffs’ application for preliminary

injunction on June 17, 1988, the parties

stipulated and the court ordered that the stay

entered by the Forest Service would remain in

effect until the court rules on the merits of

the controversy and thereafter until time for

appeal has expired.

III. EXTINGUISHMENT OF ABORIGINAL TITLE -

Plaintiffs claim that they have a prior

and superior right of access to their sacred

site at the Canyon Mine site based on their

aboriginal title which plaintiffs argue was

preserved by the Grand Canyon National Park~

Enlargement Act, 16 U.S.C. § z28i (hereinafter

the "GCEA"). Defendants assert that

a-23

plaintiffs’ reliance on the GCEA is misplaced

and that there is no doubt that by the time

the GCEA became law in January 1975, all

interest of the Havasupai Tribe in any of the

non-trust lands comprising the Kaibab National

Forest, including the Canyon Mine site had

been extinguished.

It is undisputed that plaintiffs’

aboriginal title once encompassed the area of

the Canyon Mine site.4

Aboriginal title is a

term of art used to describe an Indian

possessory interest in land which Indians have

inhabited since time immemorial. County of

Oneida v. Oneida Indian Nation, 470 U.S. 226,

4 The Indian Claims Commission in 1968

determined that the aboriginal territory of

the Havasupai had extended from the present

boundary of the Hualapai Reservation on the

west, the Bill Williams River on the eat and

to the Colorado River on the north. Red

Butte, just south of the Canyon Mine site, is

located approximately in the center of the

Havasupai Tribe’s former aboriginal

territory. The Havasupai Tribe, et. al., v.

United States, 20 Ind. Cl. Comm. 210, 234

(1968) (Finding of Fact No. 11).

234 (1985) (citing Cohen, Original Indian

Title, 32 Minn. L. Rev. 28 (1947)). The

Supreme Court has consistently recognized the

aboriginal rights of the Indians to their

lands. . The Indians right of occupancy is ”’as

sacred as the fee simple of the whites.’” Id.

at 235 (quoting Mitchel v. United States, 9

Pet. 711, 746 (1835)).

Aboriginal title is a permissive right of

occupancy granted by the federal government.

United States v. Gemmill, 535 F.2d i145, 1147

(9th Cir.), cert. denied, 429 U.S. 982 (1976)

(citing Johnson v. McIntosh, 21 U.S. (8

Wheat.) 543, 573-74 (1823) (Marshall,

C.J.)).- Aboriginal title may be extinguished

by the federal government at any time,

although an “extinguishment cannot be lightly

implied in view of the avowed solicitude of

the Federal Government for the welfare of its

Indian wards.” Id. at 1147 (quoting United

States v. Santa Fe P. R.R. Co., 314 U.S. 339,

354 (1941)). Congress’ power to extinguish

a-25

aboriginal possession is supreme, “whether i

be done by treaty, by the sword, by purchase

by the exercise of complete dominion adverse

to the right of occupancy, or otherwise .

ee sv. ta acific R.R

Co., 314 U.S. at 347, 62 S. Ct. at 252

(citations omitted). Therefore, the issue i

whether the Havasupai aboriginal title to th

land, including the Canyon Mine site, has be

extinguished.

The treatment of the land is instructiv

to the issue of extinguishment. The origina

Havasupai reservation had been created by

executive order in 1880. In 1882, the

Havasupai reservation was diminished in size

by executive order to an area of about 518

acres. The creation of an Indian Reservatia

however, does not invariably extinguish

aboriginal title to outlying areas. United

es Vv . a» #28 Usbs 329, 35

56 (1941); Gila River-Pima-Maricopa Communit

v. United States, 494 F.2d 1386, 1389, cert.

a-26

denied, 419 U.S. 1021 (1974). An action of

extinguishment by executive action depends on

the acquiescence of Congress for its

efficacy. es V e Pac.

a - Co., 543 F.2d 676, 689 (1976).

The Canyon Mine site is located on ground

that was part of the original Grand Canyon

Forest Reserve established by presidential

n proclamation in 1893 pursuant to the Forest

Reservation Act of 1891. In 1908, the area

was incorporated into the National Forest

System as part of the Coconino National

Forest. The area officially became part of

the Kaibab National Forest in 1934. Several

courts have determined that the reservation of

lands for forest purposes effectively

o extinguishes Indian title. United States v.

Pueblo of San Ildefonso, 513 F.2d 1383, 1386,

1391-02 (Ct. Cl.), cert. denied, 456 U.S. 1006

is (1975); Gemmiil, 535 F.2d at 1149.

In Gemmill, the Ninth Circuit determined

that “any ambiguity about extinguishment that

a-27

eel

may have remained after the establishment of

the forest reserves, has been decisively

resolved by Congressional payment of

compensation to the . . . Indians for these

lands.” Id. at 1149. In the instant case,

the final judgment entered by the Indians

Claims Commission and payment of the judgment

by Congress resolves any doubt that aboriginal

title of the Havasupai Tribe was

extinguished. In the Havasupai’s petition to

the Indian Claims Commission, the Havasupai

asserted that the action of the United States

barring the ”... Tribe from its original

territory after November 21, 1871, in

establishing a Havasupai Reservation and in

excluding the . . . Tribe from that portion of

the Havasupai country outside the said

Reservation therefore constituted a wrongful

taking of all rights, title and interest in

the said land belonging to the. . .Tribe.”

The Havasupai Tribe v. United States, Docket

No. 91 (Jan. 22, 1951); Hearing exhibit #13 at

a-28

q 41. The Commission did not have the power

to extinguish aboriginal title, but was a

mechanism set up by Congress to make

determinations of whether title had, in fact,

been extinguished. The Commission determined

that "by establishing a reservation for the

[Havasupai] on June 8, 1880 and March 3, 1882,

the United States wrongfully took [Havasupai }

aboriginal title lands without payment of

compensation therefor. . .- ." The Havasupal

Tribe v. United States, 20 Ind Cl. Comm. 210,

220 (1968); Hearing exhibit #15. The

determinations of the Commission in

establishing the taking date should be given

great weight if reasonable. Pueblo of San

Ildefonso, 513 F.2d at 1391. In Gemmill, the

Ninth Circuit recognized the difficulty of

establishing the exact date on which Indian

title has been extinguished. 535 F.2d at

1149. The Ninth Circuit’s conclusion, which

is equally applicable to the instant case

where counsel went through the various actions

a-29

in detail, is that “[a]ny one of these actions

examined in isolation, may not provide an

unequivocal answer to the question of

extinguishment.” Id. However, the actions by

the federal government which culminated in the

payment of the compromise settlement agreement

show that the aboriginal title of the

Havasupai has been extinguished. See Id.

Because of the payment of the compromise

settlement by Congress, the court need not set

an exact date for extinguishment of the

Havasupai Tribe aboriginal title. The court

simply recognizes that prior to the enactment

of the GCEA, the Havasupai had no aboriginal

title in the lands encompassing the Canyon

Mine site.

Plaintiffs rely on the Examiners’ Report

on Tribal Claims t ased Railroad Lands in

Northwestern Arizona (May 24, 1942); Hearing

exhibit #4; for their proposition that

Havasupai aboriginal title and the right of

use had not been extinguished prior to

a-30

enactment of the GCEA. The purpose of the

examination was to determine whether and to

what extent any of the lands released to the

Santa Fe Pacific Railroad Company were subject

to outstanding occupancy or other rights. It

is undisputed that the land under scrutiny in

the Examiners’ Report did not concern the land

which now comprises the Canyon Mine site.

Plaintiffs contend that the analysis of their

aboriginal title is applicable to the instant

case. The examiners were of the opinion that

no such extinguishment of aboriginal title had

occurred. Id. at 49. The Examiners’ Report,

however, predates the Indians Claim Commission

created by Congress in 1946, the final

judgment entered by the Commission in 1969,

and the Gemmill decision and United States v.

Dann, 873 F.2d 1189, 1194 (9th Cir. 1989). In

light of the foregoing extinguishment

analysis, the court finds that the

Examiners’ conclusions are not applicable to

the instant litigation.

a-31

Most recently, the Ninth Circuit

reaffirmed these principles in United States

v. Dann, 873 F.2d 1189 (9th Cir. 1989).

There, the Ninth Circuit stated where a claim

has been paid pursuant to a determination by

the Indian Claims Commission, “we cannot avoid

the rule of Gemmill that payment for the

taking of an aboriginal title establishes that

title has been extinguished.” Jd. at 1194.

The Supreme Court left open the issue of

individual aboriginal title. Id. at 1193

(citing United States v. Dann, 470 U.S. 39, 50

(1985). At oral argument, plaintiffs

contended that they could establish individual

aboriginal title based upon Dann and Cramer v.

United States, 261 U.S. 219 (1923), but the

court declined to permit the presentation of

evidence on this issue. The Administrative

Record indicates that the plaintiffs’ claims

have been based on their status as Havasupai

Indians. The Record fails to reflect any

Claim of individual aboriginal rights to the

a-32

Canyon Mine site. The plaintiffs raised the

issue after the issuance of Dann on January

11, 1989. The discussion in Dann, however, is

instructive on this issue. The Ninth Circuit

noted that no individual claim had been

made. 873 F.2d at 1196. However, the court

of appeals noted that no remnants of tribal

title can survive thereafter in individual

tribal members. Id. This court agrees. The

court of appeals then focused on a narrower

view of individual aboriginal title as

discussed in Cramer. Id. at 1197. In Cramer,

three Indians had occupied 175 acres of public

land for years prior to the United States

grant of a patent to a railroad. 261 U.S.

219. The Supreme Court upheld their title to

the land actually enclosed and occupied by the

individual Indians. Id. at 234-36. The Ninth

Circuit’s analysis of Cramer reveals that the

decision was based upon a federal policy at

the time to favor “land settlement in general

and Indian occupancy in particular.” 873 F.2d

a-33

at 1197. The Ninth Circuit noted that the

policy of public lands settlement underlying

Cramer no longer exist. Id. at 1198. An

Indian cannot gain a right of occupancy simply

by occupying public lands. Id. Even

accepting the religious significance and use

of the site by the individual Indians (as set

forth in the Record and the Offer of Proof),

the court finds that this does not amount to

actual possession of the Canyon Mine site to

the exclusion of all other. See Id. at 1199.

Plaintiffs contend that 25 U.S.C. § 194

is applicable in this matter and that

defendants has failed to carry their burdens

of production and persuasion. The court finds

and concludes that this statute is

inapplicable since aboriginal title had been

extinguished. Furthermore, the term "white

person" does not include the United States.

See Wilson v. Omaha Indian Tribe, 442 U.S. 653

(1979) (Section 194 does not apply against a

sovereign state). Alternatively, the

a-34

defendants have carried any burden that

section 194 imposes through their

extinguishment arguments.

Accordingly, the court finds and

concludes that plaintiffs’ aboriginal title to

the lands encompassing the Canyon Mine site

was .. . extinguished prior to the enactment

of the Grand Canyon National Park-Enlargement

Act of 1975.

IV. LEGAL BARRIERS TO PLAINTIFFS’ CLAIMS

Defendants also contend that plaintiffs

are barred by statute and by principles of res

judicata and collateral estoppel from

asserting the present claims of right of

access. Congress created the Indian Claims

Commission to hear and determine all Indian

claims against the federal government accruing

as of the date of the Act. Claims

Co j 6, 25 U.S.C. § 70 et.

seq. (terminated on Sept. 30, 1978). The

purpose of the Act was to provide a forum in

which Indian Tribes could present "all their

a-35

Claims of every type and variety” against the

federal government. Congress vested the Icc

with jurisdiction “[{b]road enough to include

all possible claims.” White Mountain Apache

ibe v ark, 604 F. Supp. 185, 187 (D.

Ariz. 1984), aff’d, 784 F2d 921 (9th Cir.),

cert. denied, 479 U.S. 1006 (1986) (quoting

Act of August 13, 1946, Pub.L. No. 726, 1946

U.S. Code Cong. Serv. (60 Stat.) 1347,

1355).> Based upon the grant of jurisdiction

> The language of the 25 U.S.C. § 70a, in

part, illustrates the breadth of the

jurisdiction:

The Commission shall hear and

determine the following claims

against the United States on

behalf of any Indian Tribe,

band or other identifiable

group of American Indians

residing with the territorial

limits of the United States or

Alaska: (1) claims in law or

equity arising under the

Constitution, laws, treaties of

the United States, and

Executive orders of the

President; (2) all other claims

in law or equity, including

those sounding in tort, with

respect to which the claimant

would have been entitled to sue

(Cont. )

of the Act as well as its legislative history,

all claims arising prior to 1946 were to have

been brought before the Indian Claims

Commission or were forever barred. Id. at 187

(citing 60 Stat. 1049, 1052); va) ibe o

Indians v. New Mexico, 809 F.2d 1455, 1464-66

(10th Cir. 1987); Temoak Band of Western

in a court of the United States

if the United States was

subject to suit; (3) claims

which would result if the

treaties, contracts, and

agreements between the claimant

and the United States were

revised on the ground of fraud,

duress, unconscionable

consideration, mutual or

unilateral mistake, whether of

law or fact, or any other

ground cognizable by a court of

equity; (4) claims arising from

the taking by the United

States, whether as a result of

a treaty of cession or

otherwise, of lands owned or

occupied by the claimaat

without the payment for such

lands of compensation agreed to

by the claimant; and (5) claims

based upon fair and honorable

dealings that are not

recognized by any existing rule

of law or equity.

Shoshone Indians v. United States, 593 F.2d

994, 998 (Ct. Cl.), cert. denied, 444 U.S. 973

(1979).

In White Mountain Apache Tribe, the

Indian tribe brought suit alleging that an

1887 survey erroneously excluded certain

acreage from their reservation. The Tribe

petitioned the ICC for redress for alleged

wrongs committed by the United States; namely

loss of property. The ICC determined that

title outside of the reservation was

extinguished. A stipulated settlement in the

amount of $4.9 million dollars was reached

between the Indian tribe and the United

States. The court determined that under the

principles of res judicata, the Indians’

present claim was either settled or foreclosed

by the earlier proceedings initiated by the

IcC. 604 F.Supp. at 187-89.

Similarly, the Havasupai petitioned the

Indian Claims Commission alleging that the

United States had wrongfully deprived the

a-38

Havasupai of their aboriginal lands. See The

Havasupai Tribe v. United States, 20 Ind. Cl.

Comm. 210 (1968); Hearing exhibits #13 and

#15. The Indian Claims Commission concluded

that the Havasupai did not voluntarily abandon

any of their aboriginal lands. Id. at 220;

Hearing exhibit #15. Further, the ICC

determined that the United States wrongfully

took the Havasupai aboriginal title without

payment of compensation when the government

established a reservation for the Havasupai by

the Executive Orders of June 8, 1880 and

March 3, 1882. Id. at 220, 234-35. The

Indian Claims Commission entered final

judgment, incorporating a stipulated agreement

between the Havasupai and the United States,

awarding the Havasupai the sum of

$1,240,000. vasupaj ibe v. United

States, 21 Ind. Cl. Comm. 324, 341 (1969);

Hearing exhibit #16. The United States made

payment of the awarded compensation to

plaintiffs within the meaning of the Indians

a-39

Claim Commission Act, 24 ?U.S.C. § 70u(a).

See Act of December 26, 1969, Publ. L. 91-166,

ch. 9, 83 Stat. 447; Act of September “29,

1972, Publ. L. 92-438, 86 Stat. 741. Payment

occurred for purposes of this litigation when

Congress authorized and appropriated said

payment. Whether the Indians accept payment

is not determinative. United States v. Dann,

470 U.S. 39, 44 (1984).

Section 70u(a) of the Indian Claims

Commission Act is a statutory bar which

provides that "The payment of any claim, after

its determination in accordance with this

chapter, shall be a full discharge of the

United States of all claims and demands

touching any of the matters involved in the

controversy." In this case, the court finds

and concludes that the plaintiffs’ current

right to access claim "touches" a matter

involved in the prior case before the Indian

Claims Commission because the Canyon Mine site

is within the area of land that was in

controversy during those proceedings involving

the Havasupai.

Plaintiffs assert that the ICC did not

provide a forum for the plaintiffs to bring

the present action against private parties

such as Energy Fuels for allegedly wrongful

future actions. This approach fails to

recognize that by the time of the ICC’s

determination plaintiffs’ aboriginal title has

been extinguished. Thus, plaintiffs cannot

avoid the statutory bar, as well as the

principle of res judicata. The plaintiffs’

claim may also be barred under the principles

of collateral estoppel. See Oglala Sioux

Tribe v. Homestake Mining Co., 722 F.2d 1407,

1413 (8th Cir. 1983) (ICC decision bars Oglala

Sioux Tribe from relitigating whether previous

Congressional act extinguished rights in their

former aboriginal territory).

The Havasupai also expressly stipulated

that the Tribe would be barred from asserting

any claim with respect to their aboriginal

a-41

land, including claims which they could have

but did not assert.

“Entry of final judgment in

said amount shall finally

dispose of all rights, claims

or demands which the petitioner

has asserted or could have

asserted with respect to

subject matter of Docket No.

91, and petitioner shall be

barred thereby from asserting

any such right, claim or demand

against defendant in any future

action.” 21 Ind. C. Comm. at

3376

Plaintiffs point to another provision in

the stipulation which states that:

“The final judgment entered

pursuant to this stipulation

shall be by way of compromise

and settlement and shall not be

construed as an admission by

either party, for the purposes

of precedent or argument, in

any other case.” Id. at 337.

Plaintiffs contend that the stipulation

as well as any reference to the ICC opinions

cannot be used as they are not part of the

Administrative Record. The court agrees that

the stipulation cannot be used as a factual

admission by the plaintiffs in this matter.

The ICC proceedings, however, are an

appropriate subject for judicial notice and

are material to this case as they pertain to

the defendants’ legal arguments concerning

extinguishment (i.e., claim was made and claim

was paid concerning plaintiffs’ aboriginal

territory). See Gemmill, 535 F.2d at 1149;

Dann, 873 F.2d at 1194.

Accordingly, the court finds and

concludes that plaintiffs’ present action,

based on its assertion of aboriginal title, is

statutorily barred by 25 U.S.C. §70u and

barred by the principles of res judicata due

to the final judgment and payment of the

compensation in the proceeding before the

Indian Claims Commission.

Vv. INTERPRETATION OF THE GRAND CANYON

ENLARGEMENT ACT

Plaintiffs’ position is that the first

and only act of Congress extinguishing

Havasupai aboriginal title was the Grand

Canyon National Park Enlargement Act of 1975,

16 U.S.C. § 228i. Plaintiffs assert that the

GCEA extinguished all of the rights of the

Havasupai in their aboriginal title except

one. Plaintiffs analysis relies heavily, in

the first instance, on the supposition that

aboriginal title had not been extinguished

prior to the enactment of the GCEA. The

court, however, has determined that the

plaintiffs’ aboriginal title was extinguished

prior to the GCEA. See supra Sec. III.

Plaintiffs argue that section 228(i)

specifically preserves a right of access to

sacred religious places such as the Canyon

Mine site. The court disagrees. Section

228(i) provides, in part, that:

Nothing in Section 228a-228j of

this title shall be construed

to prohibit access by any

members of the Tribe to any

sacred or religious places or

burial grounds, native foods,

paints, materials and medicines

located on public lands not

otherwise covered in Section

228a to 228} of this title.

The court has reviewed the Grand Canyon

Enlargement Act and its legislative history.

First, the legislative history reveals that

the Havasupai Tribe sought enlargement of

their reservation to include lands that did

not include the lands encompassing the Canyon

Mine site. See Hearing Exhibits #17-18.

Second, the legislative history reveals that

Congress did discuss and debate the issue of

extinguishment of the Havasupai aboriginal

title in light of the Indians Claims

Commission determination. Third, whether or

not aboriginal title of the Havasupai had

previously been extinguished was not a

necessary finding with respect to the action

taken by Congress in passing the GCEA.

Fourth, Congress could and did enlarge the

Havasupai reservation. Fifth, the language

upon which plaintiffs rely does not create an

affirmative right of access.

The main focus of the GCEA was to

increase the size of the Grand Canyon National

Park and secure its beauty and splendor for

a-45

generations to come. See 16 U.S.C. § 228a-

228}; 120 Cong. Rec. H10436-10437 (Oct. 11,

1974). Within the context, the problem of tt

Havasupai Tribe came to the forefront. E.g.,

120 Cong. Rec. S8523-8524 (May 20, 1974)

(statement of Sen. Goldwater); 120 Cong. Rec.

$11443 (June 25, 1974) (statement of Sen.

Humphrey). The legislative history reveals

that much debate was had on whether or not tc

increase the size of the Havasupai reservatic

to include approximately 251,000 acres desire

by the Tribe, which represented the lands thé

they were then using for grazing as allowed

under section 3 of the Act of February 26,

1919. E.g., 120 Cong. Rec. H10435-10450 (Oct

11, 1974).

The legislative history reflects that

Congress did debate whether or not the

Havasupai’s aboriginal title had been

extinguished by the 1969 settlement before tt

IcC. See 120 Cong. Rec. H6683-6684 (July 17,

1974) (statement of Rep. Udall). However,

a-46

such a determination was not necessary, as

Congress had the power to enlarge the

reservation: “Whether or not title was

extinguished when the reservation was created,

there is no doubt that the Congress can .

enlarge any Indian reservation, if it chooses

to do so, by setting aside lands belonging to

the United States in trust for the use of the

tribe.” j eo j a

wi is j a

Additional Views on S.1296, Report No. 93-

1374, at 9 (Sept. 25, 1974); see also, 120

Cong. Rec. H10444 (statement of Rep. Foley) ;

("Congress has the responsibility and the

power to create, add to or abolish Indian

| reservations as it sees fit. ... The

question here is one of need, and the

committee concluded that the tribe indeed

needs a larger land base.”) Id. at 10440

(statement of Rep. Udall). The legislative

history reflects a concern on behalf of some

members of Congress that expansion of the

—

a-47

Havasupai Reservation would undermine the

entire process under the Indian Claims

Commission . 120 Cong. Rec. H10449-10450

(statement of Rep. Dellenback); Id. at H10450

(statement of Rep. Taylor). The legislative

history reflects the fact that the ICC paid

the compensation for the Tribe’s aboriginal

lands but allowed them to use the area they

now sought for an enlarged reservation for

grazing purposes. House Committee on Interio

iI ; Affai ; t with Dj bj

and Additional Views on S.1296, Report No. 93

1374, at 9. The situation of the Havasupai

appeared to be inka to other claims settled

by the ICC and would not create a dangerous

precedent to claims by other Indian Tribes.

See Id. at 10; 120 Cong. Rec. H10440

(statement of Rep. Udall); 120 Cong. Rec.

H6684 (July 17, 1974).

Congress declared that an additional

185,000 acres were to be held in trust

enlarging the reservation of the Havasupai

a-48

Tribe. 16 U.S.C. § 228i(a). Congress,

however, did place various restrictions on the

Havasupais’ use of the land consistent with

the Congressional intent to preserve the

splendor of the Grand Canyon. See Id. at

§ 228i(b). Congress also designated 95,300

acres as Havasupai use lands for grazing and

other traditional purposes. Id. at

§ 228i(e). In reference to the use area, the

legislative history recognizes that "this area

contains places of historic significance to

the tribe, as well as burial grounds and

religious shrines, the Committee agreed that

access within the area should be guaranteed

for tribal members." ous ommittee o

Interior and Insular Affairs, Reports with

Report No. 93-1374, at 10. It is undisputed

that neither the enlarged reservation or

designated use lands encompass the Canyon Mine

site.

An examination of the language in section

a-49

228i(c), which plaintiffs rely upon, indicat«

that Congress did not create, p reserve, or

confirm any affirmative right to access. Th

parties have not presented, and the court is

unable to find, any legislative history

concerning the relevant part of section

228i(c) which supports the plaintiffs’

interpretation. Section 228i(c) clearly

indicates that the Grand Canyon Enlargement

Act shall not be construed to prohibit

access. There is no part of the GCEA which

prohibits plaintiffs’ access to the Canyon

Mine site. The language in section 228i(c)

a statement of statutory neutrality to judge

administrative agencies, and others not to

interpret the GCEA to prohibit access on oth

public lands. Such a statement of statutory

neutrality is particularly appropriate in

light of the past friction between the

Havasupai and some agencies of the federal

government. See e.g., 120 Cong. Rec. S7554,

7555 (statement of Sen. Kennedy); 120 Cong.

a-50

Rec. Extension of Remarks in the House (July

8, 1974) (editorial from the Los Angeles

Times); 120 Cong. Rec. H6684 (July 17, 1974)

(statement of Rep. Udall); 120 Cong. Rec.

H10440 (Oct. 11, 1974) (statement of Rep.

Udall); v.3D-D.172 (p. 166) - P.3633.

A review of other sections of the GCEA

support the court’s determination that section

228i(c) does not create an affirmative right

of access. Congress knew how to create land

in trust for the benefit of the Havasupai.

Section 228i(a) provides that Lands “are

hereby declared to be held by the United

States in trust for the Havasupai Tribe.”

Congress also knew how to create a right of

, access. The sentence immediately preceding

the disputed sentence in § 228i(c) states

that" “the Secretary shall have the right of

access to any lands hereby included in the

Havasupai Reservation." No similar grant in pS.

trust or affirmative right of access is

created by the language plaintiff cites.

a-51

————————————

Plaintiffs also analogize the language

contained in the GCEA to extinguishment of

title and preservation of rights in the

Massachusetts and Connecticut Indian Land

Claims Act, 25 U.S.C. § 1771; 25 U.S.C.

§ 1751. In those acts, however, Congress di

not preserve aboriginal rights, but only

personal claims of individual Indians. It i:

also interesting to note that in those acts

the reservation occurred in the same clause |

the extinguishment. In the GCEA, the langua

that plaintiffs assets support a grant of

reservation does not appear in the same

subsection of the GCEA that addresses

extinguishment. This further supports an

interpretation against creation of an

affirmative right of access.

The language of § 228i(c) neither

acknowledges or preserves an aboriginal righ

in any non-trust land or defines a trust

responsibility on the part of the United

States.

This interpretation is further supported

by the fact that intense debate occurred at

the time of the GCEA on whether to give the

Havasupai Tribe any additional lands at all.

In light of the debate on whether to give the

Havasupai lands in trust at all, this court

cannot infer that Congress intended to give

the Havasupai a power that would amount to a

veto over activities on public lands not

otherwise covered by the act.® The area which

plaintiffs claim a right to access covers over

three million acres. There is no indication

that Congress intended to prohibit such

activities as mining throughout this area.

See Pathfinder Mines Corp. v- Hodel, 811 F.2d

6 The practical effects of accepting the

Havasupais’ interpretation of the GCEA would

be immense and unpredictable. Plaintiffs

shave thousands of other religious sites in

their former aboriginal title land not

otherwise covered by the GCEA, which the

Havasupai will generally not reveal to non-

Havasupai members. See V.3D-D.176-P.3766

(Comments of Tribal Chairman, Mr. Wayne

Sinyella).

1288, 1291 (9th Cir. 1987).

Based upon the analysis in Sections III,

IV and V of this Order, the court finds and

concludes that plaintiffs do not have an

aboriginal right of access to the Canyon mine |

site. Plaintiffs cannot prevail on their |

claim of right of access as set forth in their

complaint. Accordingly, judgment shall be

entered in favor of defendants on count II of |

plaintiffs’ complaint.

VI. FOREST SERVICE APPROVAL OF THE PLAN OF

OPERATIONS FOR THE CANYON MINE DOES NOT

VIOLATE THE PLAINTIFF’S FIRST AMENDMENT

RIGHT TO FREE EXERCISE OF RELIGION e

The Havasupai assert that the Forest

Service’s decision approving the modification |

plan of operations for the Canyon Uranium Mine!

violates their first amendment rights to

freely exercise their religion at the Canyon

Mine site. The Havasupai assert that the

Canyon Mine site is sacred and any mining will

interfere with their religious practices at

and near the mine, will kill their deities,

and destroy their religion or “Way.” E.q.,

Complaint, at 7-11; V.2B-D.59-P.1827

(Transcript of Oral Presentation before the

Deputy Religion Forester, May 14, 1987); V.3B-

.D.122-P.3137-3143 (Affidavit of Four

Havasupai Tribe members) ; V.3D.-D.176-P.3716-

3825 (Transcript of Oral Presentation before

the Chief of the Forest Service, February 25,

1987). For purposes of this section of

analysis, the court can assume that all of

plaintiffs’ assertions about the religious

sanctity of the Canyon mine site and adverse

affects upon the Havasupai belief system are

true. /

The case of Lyng v. Northwest Indian

Cemetery Protective Association, 485 U.S. 439,

108 S. Ct. 1319 (1988) is ‘applicable to the

instant case and is dispositive of plaintiffs’

first amendment claim. In Lyng, the Forest

7 Plaintiffs submitted a general offer of

proof regarding the Havasupai religion on May

17, 1989.

Service had prepared a final environmental

impact statement for a proposal allowing

logging in, and construction of a six-mile

paved road through the Chimney Rock section o

the Six Rivers National Forest in

California. It was undisputed that insofar a:

Indian religious practices were concerned the

proposed actions would have severe adverse if

not devastating effects. Id. at 451, 108 S.

Ct. at 1326. The Supreme Court assumed that

for purposes of their decision the

government’s action would "virtually destroy

the Indians’ ability to practice their

religion.” Id. (quoting the Ninth Circuit’s

opinion). Further, the Supreme Court

recognized that the traditional religious

practices were intimately bound up with the

unique features of the Chimney Rock area and

that the government’s action would physically

destroy those environmental conditions. Id.

The Supreme Court determined that the

“Constitution simply does not provide a

a-56

principle that could justify upholding” the

Indians first amendment claims. Id. at 452,

108 S. Ct. at 1326-27. Similarly, in the

instant case, the Forest Service’s approval of

the Plan does not violate the free exercise

clause of the first amendment.

Plaintiffs here, as in Lyng assert that

their religious and cultural belief systems

are intimately bound up with the Canyon Mine

site. Plaintiffs assert their belief that

EFN’s operations will destroy their

religion. The Supreme Court, in Lyng, made

the same assumption in reaching its conclusion

of no first amendment violation. Accordingly,

the court finds and concludes that no first

amendment violation is present in this case.

Plaintiffs attempt to distinguish Lyng on

several grounds, all of which the court finds

to be unavailing. First, plaintiffs argue

that coercion is present in this case as the

Canyon Mine site is the embodiment and center

of the Havasupai Tribe universe. The court

a-57

finds no distinction from Lyng which

necessitates a different result. The majority

specifically rejected the dissent’s balancing

approach, noting the practical impossibility

of determining the centrality of a religious

belief. Id. at 457-58, 108 S. Ct. at 1329-

30. The Supreme Court did not find

governmental coercion which implicated a

“compelling justification” test. On this

subject the court stated:

This does not and cannot imply

that incidental effects of

government programs, which may

make it more difficult to

practice certain religions but

which have no tendency to

coerce individuals into acting

contrary to their religious

beliefs, require government to

bring forward a compelling

justification for its otherwise

lawful actions. The crucial

word in the constitutional text

is “prohibit”: ‘*”For the Free

Exercise Clause is written in

terms of what the government

cannot do to the individual,

not in terms of what the

individual can exact from the

government.”

Id. at 451, 108 S. Ct. at 1326 (quoting

Sherbert v. Verner, 374 U.S. 398, 412, 83 S.

Ct. 1790, 1798 (1963) (Douglas J.,

concurring) ).

The court can find no meaningful

distinction between this case and Lyng.

Plaintiffs are not penalized for their

beliefs, nor are they prevented from

practicing their religion. ®

Second, plaintiffs argue that Lyng should

be distinguished because this case involves

private mining activities while Lyng involved

the building of a road by the government. As

in Lyng, however, fee title of the and in this

case remains with the government. Union Oil

Co. of California v. Smith, 249 U.S. 337, 349

(1919). “Whatever rights the Indians may have

8 The Havasupai do not necessarily have to

be present at the Canyon Mine site to practice

their religion. The “Way” is a state of mind-

-a religious or spiritual journey. V.3B-

D.122-P.3139-40; “Our physical presence at the

sacred places is not always required.” Id. at

P.3139. ‘*”Sometimes we go to this place to

pray . «+ « e Sometimes we pray for that

place from a distance.” Id. at 3141.

to use the area .. . those rights do not

divest Government of its right to use what is,

after all, its land.” Lyng, 485 U.S. at 453,

108 S. Ct. at 1327. Moreover, the Havasupai

apparently have thousands of other religious

sites within their former aboriginal lands.

V.3D-D.176-P.3766. Giving the Indians a veto

power over activities on federal land that

would “easily require de facto beneficial

ownership of some rather spacious tracts of

public property.” Id, at 453, 108 S. Ct. at

1327.

Finally, plaintiffs argue Lyng is

distinguishable because there the Indians

still have access to their religious site,

where in the instant case, the mining laws

give EFN the right to possession and exclusion

of the Havasupai. Plaintiffs point to the

fence and no trespassing signs at the Canyon

Mine site in support of their claim that they

are denied access to the site. There is no

evidence in the record, however, to show the

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plaintiffs have been denied reasonable access

to the Canyon Mine site, that they have been

treated any differently than the general

public, or that any mining law has been

applied against plaintiffs in a discriminatory

manner. The court recognizes that plaintiffs

access to the Canyon Mine site may be

different from what they would like; however,

any limitation does not amount to a violation

of the first amendment.

This case is simply not distinguishable

from Lyng. Plaintiffs cannot prevail on their

claim based upon the free exercise clause of

the first amendment. Accordingly, judgment

will be entered in favor of the defendants on

count I of plaintiffs complaint.

VII. FOREST SERVICE APPROVAL OF THE PLAN OF

OPERATIONS FOR THE CANYON MINE DID NOT

VIOLATE ANY FIDUCIARY DUTY OF THE

GOVERNMENT TO THE HAVASUPAI

Plaintiffs contend that the Forest

Service failed to recognize and consider the

government’s fiduciary duty to the Havasupai

in reviewing EFN’s plan of operations

throughout the administrative process. The

court disagrees. The Deputy Regional Forester

stated that:

Federal agencies may have

statutorily established

fiduciary duties associated

with the management of Indian

lands and resources. No such

duties are at issue here since

the lands embraced within EFN’s

mining claims are National

Forest System lands, not Indian

lands. There is nothing in the

record to support appellant’s

contention that the development

and operation of the Canyon

Mine on National Forest System

land will have a deleterious

effect on the Reservation .

V.4A-D.256-P.5234; see also V.5-D.256-P.5234

(concurrence by chief in decision on the

merits). Furthermore, the Forest Service

concluded that it “has met any fiduciary duty

it may have through the exhaustive analysis

undertaken from the Canyon Mine and the

imposition of extensive monitoring, mitigation

and reclamation measures.” V.4A-D.256-P.5234.

It is undisputed as a general principle

that the federal government has broad

fiduciary obligations to the Indian tribes

akin to that of a guardian and a ward. E.g.,

Seminole Nation v. United States, 316 U.S.

286, 296-97, 62 S. Ct. 1049, 1054 (1942);

Vigil v. Andrus, 667 F.2d 931, 934 (10th Cir.

1982); Crain v. First National Bank, 324 F.2d

532, 535 (9th Cir. 1963). Any federal

government action is subject to the

government’s general fiduciary

responsibilities toward the Havasupai Tribe.

See Nance v. Environmental Protection Agency,

645 F.2d 701, 711 (9th Cir.), cert. denied,

454 U.S. 1081 (1981). It is equally clear

that the federal government is not obligated

to provide particular services or benefits,

not to undertake any specific fiduciary

responsibilities in the absence of a specific -

provision in a treaty, agreement, executive

order, or statute. Vigil, 667 F.2d at 934;

North Slope Borough Slope v. Andrus, 624 F.2d

589, 611 (D.C. Cir. 1980); Gila River Pima-

a-63

Maricopa Indian Community, 427 F.2d 1194.

Plaintiffs allege that the specific fiduciar:

duty arises in the instant case from: (1) t

Treaty of Guadalupe Hidalgo; (2) the America:

Indian Religious Freedom Act (”AIRFA”); (3)

the GCEA; and (4) the government’s general

course of dealing with the Indians.

A. The Treaty of Guadalupe Hidalgo

The government of the United States and

Mexico signed the Treaty of Guadalupe Hidala

(*the Treaty”) on February 2, 1848 ceasing

hostilities between the two nations. 9 Stat.

992 (1848). Relying on United States v.

Abeyta, 632 F. Supp. 1301 (D.N.M. 1986),

plaintiffs contend that this Treaty secures

them the religious right of access to the

Canyon Mine site. Article IX of the Treat

states:

Mexicans who, in the

territories aforesaid, shall

not preserve the character of

citizens of the Mexican

republic, conformably with what

is stipulated in the preceding

article, shall be incorporated

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—_—"

into the Union of the United

States, and be admitted at the

proper time (to be judged of by

the Congress of the United

, States) to the enjoyment of all

the rights of citizens of the

United States, according to the

principles of the constitution;

and in the mean time shall be

maintained and protected in the

free enjoyment of their liberty

and property, and secured in

the free exercise of their

religion without restriction.

There is no dispute that the members of the

Havasupai Tribe were citizens of the Mexican

Territory at the time the Treaty was entered

in 1848. In Abeyta, a member of the Isleta

Pueblo was charged with the knowing possession

of parts of a golden eagle without a permit in

violation of the Bald Eagle Protection Act.

632 F. Supp. at 1302. The use of eagles and

their feathers in religious ceremonies

constituted an indispensable part of an Indian

ritual. Id. at 1303. The District Court for

the District of New Mexico determined that the

Bald Eagle Protection Act did not repudiate

the guarantee of religious freedom under the

Treaty of Guadalupe Hidalgo. The district

court considered the Treaty as an

international compact securing religious

freedom to Mexican citizens in the ceded

territories. Id. at 1306. The district cour

concluded that it was up to Congress to

abrogate the Treaty. Id. at 1306-07. In

light of the fiduciary relationship to the

Indians, the district court determined that

Congress did not intend to repudiate the

protections the court believed had been

created by the Treaty. Id. at 1306-07.

This decision from the District Court fo

the District of New Mexico is not binding upo

this court, nor does this court find it to be

persuasive. First, the validity of the

decision is questionable in light of United

States v. Dion, 476 U.S. 734, 106 S. Ct. 2216

(1986). In Dion, the Supreme Court concluded

that a treaty” with the Yankton Sioux Tribe

9 The treaty at issue in Dion was an 1858

treaty to hunt the bald or golden eagle on th

(Cont. )

a-66

did not protect an Indian from prosecution

under the Eagle Protection Act. Id. at 743,

106 S. Ct. at 2222. See also U.S. V- Thirty

Eight Golden Eagles, 649 F. Supp. 269, 277-278

(D. Nev. 1986) (holding, contrary to Abeyta,

that Bald Eagle Protection Act not facially

unconstitutional burden to Indian’s right to

free exercise of religion). The second and

more compelling reason, however, is the plain

language of the Treaty of Guadalupe Hidalgo

itself. The Treaty guaranteed the residents

of what is now Arizona and New Mexico,

formerly of Mexico, the right to "free

exercise of religion without restriction”

until they became “incorporated into the Union

of the United States.” Thereafter they would

Yankton Reservation. The Supreme Court

determined that the Bald Eagle Protection Act

abrogated any Indian treaty rights. The

Supreme Court, of course, was not faced with

the Treaty of Guadalupe Hidalgo, nor did it

reach the issue of whether the Bald Eagle

Protection Act was read to aborgate religious

treaty rights. See Id. at 746.

be entitled to “the enjoyment of all the

rights of citizens of the United States,

according to the principles of the

constitution.” The Treaty, by its own terms,

does not create any right beyond the

constitutional religious freedom rights. The

Treaty simply affords those rights to

residents in the area prior to statehood. The

court finds and concludes that no specific

fiduciary duty is created by the Treaty of

Guadalupe Hidalgo.

B. American Indian Religious Freedom

Act - (AIRFA)

Plaintiffs reliance on AIRFA is

misplaced. AIRFA provides that it is:

the policy to the United States

to protect and preserve for

American Indians their inherent

right of freedom to believe,

express, and exercise the

traditional religions of the

American Indian .. . including

but not limited to access to

sites, use and possession of

sacred objects, and the freedom

to worship through ceremonials

and traditional rites.

42 U.S.C. § 1996. AIRFA does not create a

cause of action or any judicially enforceable

rights. Lyng, 485 U.S. 455, 108 S. Ct. at

1328. In an attempt to distinguish Lyng,

plaintiffs assert that the plaintiffs in Lyng

brought a separate count under AIRFA, while

here, the Havasupai claim is related to a

breach of a fiduciary duty. Plaintiffs

purported distinction is unavailing. ?° The

10 The bill’s sponsor, representative Udall

called it “’a sense of Congress joint

resolution,’ aimed at ensuring that ‘the basic

right of the Indian people to exercise their

traditional religious practices is not

infringed without a clear decision on the part

of Congress or the administrators that such

religious practices must yield to some higher

consideration.’ Lyng at 456, 108 S. ct. at

1329, (citing 124 Cong. Rec. 21444 (1978)).

Representative Udall emphasized that the bill

would not “confer special religious rights on

- Indians,” would “not change any existing State

or Federal law,” and in fact "has no teeth in

it.” Id. Plaintiffs assert that the Forest

Service did not make a clear decision that the

Havasupai religious concerns must yield.

AIRFA does not declare an overriding federal

policy to protect Indian religious or grant a

veto over agency action. Wi ‘ , 708

F.2a 735, 746 (D.C. Cir.), cert. denied, 464

U.S. 956 (1983) and 464 U.S. 1056 (1984). The

Forest Service made considerable effort to

gain information from the Havasupai. The

(Cont. )

a-69

court agrees that AIRFA does impose an

obligation on a federal agency to protect

Indian religious freedom. However, AIRFA does

not create a specific fiduciary relationship

or the obligations imposed by such a fiduciary

relationship. Wilson v. Block, 708 F.2d 735,

745-47 (D.C. Cir.), cert. denied, 464 U.S.

956, 104 S. Ct. 371 (1983) and 464 U.S. 1056,

104 S. Ct. 739 (1984). AIRFA requires a

federal agency to evaluate their policies and

procedures with the aim of protecting Indian

religious freedom, to refrain from prohibiting

access, possession and use of religious

objects and the performance of religious

ceremonies, and to consult with Indian

organizations in regard to the proposed

Forest Service considered the information it

did receive. EFN cannot deny reasonable

access to the public, including the

Havasupai. The Forest Service is required to

the extent possible to avoid unnecessary

interference with the Havasupai during the

operation of the mine. AIRFA requires no

more.

action. AIRFA does not require Indian

traditional religious considerations to always

prevail to the exclusion of all else. 708

F.2a at 745-46. AIRFA requires the federal

agency to consider, but not necessarily defer

to Indian religious values. It does not

prohibit agencies from adopting land uses that

conflict with traditional Indian religious

beliefs or practices. Id. at 747. An agency

undertaking a land use project will be in

compliance with AIRFA if, in the decision-

making process, it obtains and considers the

views of Indian leaders, and if, in project

implementation it avoids unnecessary

interference with Indian religious

practices. Id. 747.

The court finds and concludes that the

Forest Service has fulfilled its obligations

to the Havasupai Tribe under AIRFA through its

undertakings during the NEPA process.

C. Grand Canyon National Park

Enlargement Act - (GCEA)

As previously discussed, see supra V.,

the GCEA does not create a right of access for

the plaintiffs to the Canyon Mine site.

Accepting plaintiffs’ interpretation of the

GCEA would be a prerequisite to its assertion

that the statute creates a fiduciary duty

toward the Havasupai. Since the court has

found that no right of access was reserved to

the Havasupai Tribe in the GCEA, the court

finds and concludes that no fiduciary duty is

created thereby.

D. Vv ut

Plaintiffs also assert a ficuciary duty

based upon a general course of dealing between

the United States and the Havasupai. In Nance

v. Environmental Protection Agency, 645 F.2d

701 (9th Cir. 1981), the Ninth Circuit

examined similar fiduciary duty claims.

There, the Environmental Protection Agency

(“EPA”) had approved the Northern Cheyenne

a-72

Tribe’s redesignation of its Reservation from

a Class II to Class I air quality standard.

The Crow Tribe challenged the EPA approval of

the redesignation as not considering the

effects of the action upon their

reservation. The Ninth Circuit statec,

however, “that adequate procedures were

provided by the Clean Air Act and the EPA

regulations to fulfill this responsibility.”

Id.

Similarly, the court finds that the

Forest Service satisfied any general fiduciary

duty it may have had to the Havasupai Tribe by

complying with the NEPA statute and

regulations, as discussed below.

In conclusion, the court finds and

concludes that the grounds set out by the

Havasupai fail to establish the violation of

government fiduciary duty or responsibility to

the Indian tribe. Accordingly, judgment shall

be entered in favor of defendants on count III

of plaintiffs’ complaint.

a-73

VIII. THE NATIONAL ENVIRONMENTAL POLICY ACT |

The National Environmental Policy Act of

1969, 42 U.S.C. § 4321 et. seq. seeks "to

declare a national policy which will encourag

productive and enjoyable harmony between man

and his environment; to promote efforts which

will prevent or eliminate damage to the

environment and biosphere and stimulate the

health and welfare of man ...." Id.

§ 43211 See also § 4331 ("Congressional

declaration of national environmental

policy"). The goal of the NEPA is to ensure

that federal agencies carefully consider the

environmental consequences of actions they

undertake. The NEPA process requires an

agency to take certain steps in evaluating th

potential impacts of proposed actions,

including the preparation of an Environmental

Impact Statement ("EIS") under certain

circumstances. Id. at § 4332 (requirements o

a federal agency in fulfilling this national

policy); 40 C.F.R. § 1501. The procedures se

a-74

forth in regulations promulgated by the

Counsel on Environmental Quality at 40 C.F.R.

§ 1500-17. ("CEQ Regulations") ++ implement

the NEPA requirements. AS discussed, the

Forest Service decided to prepare and EIS and

gave formal notice of the decision on

April 30, 1985.

The established procedures for EIS

preparation require four basic steps: (1)

"scoping"; (2) data gathering and publication

of a draft EIS: (3) public comment on the

draft EIS; and (4) publication of the final

EIS and “Record of Decision."?? The purpose

of an EIS is to both "provide decisionmakers

with enough information to aid in the

substantive decision whether to proceed with

11 The relevant CEQ Regulations during 1985

and 1986 (as well as the present regulations)

are the same.

ie For a concise summary of these steps, See

2 da

Facts, at 45-46.

a-75

the project in light of its environmental

consequence, and to provide the public with

information and an opportunity to participate

in gathering information.” Citizens for a

Better Henderson v. Hodel, 768 F.2d 1051, 105¢

(9th Cir. 1985). The fact that an EIS

discloses that a proposition may have some

adverse effects on the environment or human

health does not necessarily indicate a

violation of NEPA. See e.g., Id. at 1058. Ar

EIS need not discuss remote and conjectural

environmental consequences. See e.g., Sierra

Club v. Hodel, 544 F.2d 1036, 1039 (9th Cir.

1976), but only every reasonable

alternative. Citizens for a Better Henderson,

768 F.2d at 1057.

While the NEPA does set forth significant

substantive goals for the federal government,

the duties imposed upon an agency are

"essentially procedural.” Strycker’s Bay

Neighborhood Council v. Karlen, 444 U.S. 223,

227, 100 S.Ct. 497, 500 (1981). The NEPA

a-76

does not impose any substantive requirements

or priorities upon agencies, and does not

restrict the decisions or choices that an

agency makes so long as the decision is fully

informed and well considered. Id. at 227-28,

100 S.ct. at 500.

Before the court for review is the Forest

Service’s approval of EFN’s Modified Plan of

Operations. Plaintiffs have exhausted their

administrative remedies. Judicial review of

the Forest Service’s decision is governed by

the standards set out in the Administrative

Procedure Act, 5 U.S.C. § 706. Accordingly, a

reviewing court cannot impose its judgment on

an agency. ?? The proper role for the court is

to ensure that the Forest Service adequately

considered and disclosed the environmental

13 *NEPA was designed ‘to insure a fully

informed and well considered decision,’ but

not necessarily, ’a decision the judges of the

Court of Appeals or of this Court would have

reached had they been members of the decision

making unit of the agency.’ Strycker’s Bay,

at 227-28, 100 S.Ct. at 500.

a-77

impact of its action that its decision was not

arbitrary and/or capricious. Id.; see also

Baltimore Gas & Electric Co. v. N.R.D.C., 462

U.S. 87, 97 (1983). The adequacy of an EIS

depends upon whether it was prepared in

observance of the procedure required by law.

5 U.S.C. § 706(2)(D); Animal Defense Council

v. Hodel, 840 F.2d 1432, 1435-36 (9th Cir.

1988); State of California v. Block, 690 F.2d

753, 761 (9th Cir. 1982). The Ninth Circuit

has adopted a “rule of reason," test that

requires inquiring into whether an EIS

contains a reasonably thorough discussion of

the significant aspects of the probable

environmental consequences, and whether the

EIS’s form, content and preparation foster

both informed decisionmaking and informed

public participation. Once satisfied that the

agency has taken this procedural and

substantive "hard look" at environmental

consequences in the EIS, the court’s review is

at an end. Animal Defense Council at 1435-36;

a-78

State of California v. Block at 761..

Within this framework of review, the

Havasupai Tribe alleges that the EIS prepared

by the Forest Service is deficient and fails

to comply with the procedural requirements of

NEPA. Specifically, the Havasupai Tribe

alleges that the EIS for the Canyon Uranium

Mine: (1) fails to consider the “no action

alternative” or not approving the Plan of

Operations for the mine; (2) fails to give

adequate consideration to the plaintiffs’

religious and cultural interests in the site;

(3) is based on incomplete hydrogeological

information; (4) fails to adequately consider

the environmental impact of disposal of

radioactive waste; and (5) fails to adequately

consider the environmental cumulative impacts

of mining in the region in which the Canyon

Mine is located. If the EIS fails to comply

with NEPA, the court must remand the case to

the Forest Service for such further action as

may be necessary to comply with the statute.

a-79

The court will discuss each of these issues i

turn.

A. The No Action Alternative.

NEPA requires that an EIS provide

information in detail and consider every

reasonable alternative to the proposed -

action. Citizens for a Better Henderson, 768

F.2d at 1057; see 42 U.S.C. § 4332(2) (c) (iii)

The analysis of the varying alternatives

constitutes the heart of the EIS. The CEQ

Regulations contemplate that an EIS will

include a no-action alternative to permit the

agency and the public to address the option.

40 C.F.R. § 1502.14(d). In the instant case,

the Forest Service selected five alternatives

including the no action alternative.

The Havasupai Tribe alleges that the

Forest Service never considered any

alternative other than approval of the Canyon

Uranium Mine. Plaintiffs allege that the

entire EIS process was used as a means to

justify an end. See 40 C.F.R. § 1502.2(g)

a-80 |

(EIS shall assess environmental impact of

proposed agency actions, rather than

justifying decisions already made). The basis

for plaintiffs’ assertion consists of alleged

statements by Dennis Lund, the Forest

Supervisor who had primary responsibility in

drafting the EIS. Plaintiffs contend that Mr.

Lund stated that Forest Service was going to

approve the Plan of Operations because it did

not have legal authority to deny it. See

V.2A-D.30-P.1051, 1053 (March 13, 1985 letter

from Joe P. Sparks to Dennis Lund) .?4 The

14 The March 13, 1985 letter states that:

"The Tribe disagrees with your statement made

in a conversation with Margaret Vick of our

office on February 3, 1985 that the

alternative of no mining is not available.”

V.2A-D.30-P.1051, 1053. In addition, Mr. Lund

was quoted in several newspaper articles as

saying that the alternative of no mine was not

viable because of legislation passed by

Congress. V.2B-D.62-P.2038 (Williams News,

Thursday, March 7, 1985); Id. at P.2041

(*Wolf’s Den by Dave Wolf, Arizona wildlife

News, March 1984, at p.- 7); Id. at P.2053

(Williams News, Thursday 24 1985). Those same

newspaper articles encourage interested

parties to submit written comments on the mine

proposal to the Forest Service.

court finds, however, that the Forest Service

considered the no action alternative in a

manner consistent with established law and

procedures and did not use the NEPA process t

justify a decision already made.

The formal Notice in the Federal Registe:

which initiated the scoping process indicates

a “range of alternatives for the development

of the proposed mine including, but not

limited to, approval of the proposal, approva!

of the proposal with specific mitigation

measures and no action, will be considered”.

V.2A-D.37-P.1222, 50 Fed. Reg. 18,281).

Moreover, the Forest Service clearly described

its approach to the no-action alternative in

the final EIS:

The No Action Alternative, for

the purposes of this

environmental evaluation, would

involve disapproval of the Plan

of Operations for the Canyon

Mining Project. The plan would

be returned stating the reasons

for disapproval and request the

proponent to submit a new plan

that would meet the environ-

mental and administrative

a-82

constraints. While the Forest

Service can require or impose

reasonable environmental

controls or conditions on an

operating plan, they do not

have the authority to

disapprove a reasonable

operating plan for a mining

operation which will be

conducted in a reasonable and

apparently environmentally

responsible manner (re: General

Mining Law and 36 C.F.R.

228). The use of this

alternative, however, is

consistent with previous Forest

Service administrative

decisions to treat the no

action mining alternative as

the no project option. It

provides a sound baseline

against which all other options

can be compared.

V.1B-D.3-P.513.

The draft EIS stated that “(t]he Forest

Service does not have the authority to

categorically deny operations proposed under

the mining laws.” V.1A-D.1-P.24. The final

EIS states that the Forest Service is without

authority to deny “a reasonable operating plan

for a mining operation which will be conducted

in a reasonable and apparently environmentally

responsible manner.” V.1B-D.3-P.513; see also

a-83

V.2A-D.37-P.1168 (Forest Supervisor’s

responsive statement to the Uranium Mine

Appeal).

In direct response to a comment of the

Havasupai Tribe on the draft EIS, the final

EIS provides:

V.1B-D.4-P.774.

We agree that the range of

alternatives to be considered

is not limited by the agency’s

authority. Thus, the EIS

includes the No Action

Alternative ... The

consideration of the No Action

Alternative was expended in the

final EIS. However, it would

be inaccurate if the EIS did

not reflect to some extent the

rights of a mining claimant

under the General Mining Law

and recognize some limits on

Forest Service discretion when

reviewing a Plan of

Operations. The No Action

Alternative is fully considered

and evaluated. However, the

EIS properly notes the

limitations in implementing

that alternative.

Comment and Forest Service Response).

(Final EIS appendix 6, Publi:

The court finds that the Forest Service

properly recognized its authority and

limitations in evaluating the no action

alternative. This conclusion is implicit in

both the draft and final EIS. The Regional

Forester explicitly made this apparent point

in his decision on the merits of the appeal

from the Forest Supervisor’s September 29,

1986 decision. The Regional Forester stated

that:

The Forest Service does have

the authority to disapprove

plans of

operations and, thereby, to

implement the no action

alternative. If @all, or

portions of a plan of

operations do not contain

reasonable requirements for

surface resource protection,

and the operator is unwilling

or unable to make the necessary

changes, then the Forest

Service has the authority to

disapprove all, or portions, of

the plan.

V.4A-D.188-P.3943 (emphasis added). The

Forest Service cannot categorically deny an

otherwise reasonable plan of operations.

United States v. Weiss, 642 F.2d 296 (9th Cir.

1981). Of course, the Forest Service would

have the authority to deny an unreasonable

plan of operations or a plan otherwise

prohibited by law. E.g., 16 U.S.C. § 1538

(endangered species located at the mine

site). The Forest Service would return the

plan to the claimant with the reasons for

disapproval and request submission of a new

plan to meet the environmental concerns.

V.1B-D.3-P.513.

In Weiss, the owners of unpatented mining

Claims had been enjoined for failure to comply

with Forest Service regulations by not filing

an approved plan of operations. The Ninth

Circuit affirmed the injunction. The Ninth

Circuit noted that "[m])ining has been accorded

a special place in... . laws relating to

public lands."- 642 F.2d at 299. As long as

prospectors complied with the federal and

state laws, "locators of mining locations were

given ‘the exclusive right of possession and

enjoyment of all the surface included within

the lines of their location,’ along with the

a-86

subsurface rights.” Id. (quoting 30 U.S.C. §

26).

The Ninth Circuit also recognized an

important interest in preserving and

protecting the forests and parks on the public

lands. Id. The Ninth Circuit stated that

"the important interests involved here were

intended to and can coexist." Id. With

respect to the Secretary of Agriculture’s

authority and responsibility to maintain and

protect the national forest lands, the Ninth

Circuit stated:

While prospecting, locating,

and developing of mineral

resources in the national

forests may not be prohibited

nor so unreasonably

circumscribed as to amount to a

prohibition, the Secretary may

adopt reasonable rules and

regulations which do not

impermissibly encroach upon the

right to the use and enjoyment

of placer claims for mining

purposes.

642 F.2d at 299 (footnote omitted)) see

also 16 U.S.C. § 478; 30 U.S.C. § 214a.

The court’s review of the record reflects

a-87

that the Forest Service properly considered

the no action alternative as one of five

alternatives in the EIS. The no action

alternative meant disapproval of the plan of

operations and no mine. V.1A-D.1-P.51

(DEIS). The NEPA does not expand the

authority of the Forest Service to include

rejection of an otherwise reasonable plan of

operations. Cf. Cape May Green, Inc. v.

Warren, 698 F.2d 179, 188 (4d Cir. 1983). Th

Forest Service was required to compare the no

action alternative with the beneficial and

adverse impacts of the other alternatives.

See Kilroy v. Ruckelshaus, 738 F.2d 1448, 145.

(9th Cir. 1984); *Forty Most Asked Questions

concerning CEQ’s National Environmental Polic'

Act Regulations,” 46 Fed. Reg. 18027 (March

17, 1981) (When agency under court order or

legislative command to act, the no action

alternative “provides a benchmark to compare

magnitude of environmental effects of action

alternatives.”).

The Forest Service was also required by

regulation to describe the existing

environment. 40 C.F.R. § 1502.15. The Forest

Service recognized that the environmental

effect of the no action alternative envisioned

leaving the environment in its unaltered

natural state. V.1A-D.1-P.119 (DEIS). The

Forest Service acknowledged that many groups,

including the Havasupai Tribe, expressed

interest in the no action alternative during

the scoping process. See V.2C-D.62-P.1996

(Analysis of Public Comment Relating to Canyon

Mine). The no-action alternative was

denominated as “Alternative #1." V.1B-D.3-

P.513 (FEIS); V.1A-D.1-P.51 (DEIS). Chapter 3

of the draft EIS includes a thirty-nine page

description of the existing environment, which

in this instance also effectively describes

the effect of selecting the no-action

alternative V.1A-D.1-P.79-117. Chapter 4 of

the draft EIS discusses the environmental

consequences of all alternatives, including

a-89

further discussion of the no-action

alternatives, including further discussion of

the no-action alternative. Id. at P.119, 123

126.

Plaintiffs and others commented on the

no-action alternative. Appendix G to the

final EIS includes the “no-action” comment

letters received by the Forest Service on the

draft EIS and the Forest Service’s analyses c

and responses to these letters. V.1-D.4-

P.702-04; Id. at P.750; Id. at P.751; Id. at

P.769, 773-74. Of the 238 letters received bk

the Forest Service, 74 letters, some with

multiple signatures, opposed the mine

altogether preferring Alternative #1. Id. at

P. 694. The Forest Service’s response to eac

comment that addressed the no-action

alternative reflect its detailed consideratioc

of the alternative. The “Comparison of

Alternative” section in Chapter 2 of the fina

EIS depicts in eight tables the effect of

selecting Alternative #1 and evidences the

a-90

detailed consideration of each alternative.

V.1B-D.3-P.535-46. The responsiveness of

Alternative #1 to the resolution of each of

the various identified “issues and concerns”

was also discussed in the final EIS. V.1B-

D.3-P.547-50; Id. at P.477-80 (summary).

The Forest Service properly utilized the

no action alternative as a baseline for

comparison of the other alternatives. The

Forest Service responded to comments on it.

In light of the reasonableness of the plan of

operation, the Forest Service correctly

approved a modification plan of operations

submitted by EFN. 2°

15 plaintiffs’ assertion that the process was

used to justify a decision already made is

unsupported as demonstrated by the vast amount

of time and effort spent by the Forest Service

in preparation of the EIS. It must be noted

that the Plan of Operation that was first

presented to the Forest Service was not the

Plan that came out. The Forest Service

required several modifications, including the

realignment of a power line, the redesigning

of the surface water diversion configuration;

a modified haul route, and incorporation of a

wildlife habitat. See V.1A-D.6-P.924-25.

Plaintiffs also assert some miscellaneou

violations. Plaintiffs contend that EFN has

enclosed the mine yards with a fence and

posted it against trespassing. Plaintiffs

argue that this construction violates 40

C.F.R. § 1502.2 (f) which states that agencie

"shall not commit resources prejudicing

selection of alternatives before making a

final decision." The court finds and

concludes that no violation has occurred nor

has any action been taken that would prejudic

the administrative or judicial decisionmaking

process. The court finds and concludes that

the agency treatment of the no-action

alternative was reasonable and the Forest

Service has taken the requisite "hard look."

See Animal Defense Council, 840 F.2d at 1435-

36.

B. vasu

Religi =.

NEPA requires that the environment

considered by the federal agency include not

a-92

only such traditional environmental concerns

as water and air quality, but also the

historic cultural and natural aspects of our

national heritage, in order to preserve an

environment which supports diversity and

variety of individual choice. 42 U.S.C. §

4331(b) (4). The Havasupai Tribe concedes

that the Forest Service, in response to

plaintiffs comments on the draft EIS, added

religious concerns to the issues evaluated in

detail in the final EIS. V.1B-D.3-P.472

(FEIS); Id. at D.6-P.919 (Record of Decision

in FEIS). The Havasupai Tribe, however,

contends that this evaluation was conducted in

a manner contrary to law and the agency

findings regarding this issue were arbitrary

and capricious. The court disagrees.

The record demonstrates that until May

1986 plaintiffs never raised the issue

regarding the religious or cultural value of

the mine site. The record reflects that

religious concerns were considered by the

a-93

Forest Service in its analysis even though the

plaintiffs did not bring the matter up until

late in the administrative process and, even

then, in a manner that made it difficult for

further analysis. The record indicates that

mining exploration activities commenced at the

site in March 1977. V.4B-D.215-P.4665.

Activities included a ground magnetic survey

and a gravity survey. Id. Exploration

drilling began at the site in 1978 and the

spring of 1985. Id. at P.4665-66. In 1979,

the Canyon Mine project area was investigated

by archaeologists from Northern Arizona

University in connection with exploration

Grilling. V.2C-D.62-P.2096. For eight years

all exploration activity and archaeological

work occurred without comment or expressed

opposition by the Havasupai regarding their

religious concerns. V.3D-D.186-P.3918.

After nearly a decade of exploration and

other activities, EFN filed its Plan of

Operation in late 1984. A review of the

a-94

contact with the Havasupai Tribe and its legal

counsel is of benefit in the determination of

this issue. In November 1984, the Forest

Service sent the Havasupai and some 1700

others a letter requesting comments on EFN’S

proposal. V.2C-D.62-P2005. The proposal was

also heavily publicized. See Id. at P.2037-

70. The record fails to reflect that any

religious concerns were raised by the

Havasupai Tribe at this time.

In November of 1984, Abajo Archaeology

began a preliminary archaeological survey of

the area. V.2C-D.62-P.2100. The purpose of

the archaeological survey was to investigate

the cultural-historical background of the

project area. Id. at P.2102. By letter dated

January 18, 1985, the Forest Service notified

the Havasupai Tribe of Abajo’s application to

the Forest Service to conduct a more complete

archaeological investigation of the mine

site. V.2A-D.37-P.1414. The letter requested

that the Havasupai contact the Forest Service

a-95

within thirty days to “discuss their interest

including ways to avoid or mitigate potential

harm or destruction of this site.” Id. By

letter dated February 15, 1985, Margaret Vick

responded to the January 18, 1985 letter. Id

at P.1416. The letter indicated that “the

Tribe wishes to consult with the Forest

Service’s prior to issuance of a Permit to

Abajo Archaeology. Id. The letter also

indicated that the Havasupai Tribe objected t

the Forest Service’s issuance of a permit

until such consultation was completed. Id.

By letter dated April 8, 1985, the Forest

Supervisor responded to Ms. Vick’s letter. H

state in part:

In our (January 18, 1985)

letter we sought comments from

the Havasupai to assist us in

determining if either of these

sites had religious or cultural

significance for the Tribe. We

feel that concerned Indian

tribes should function as

advisors to our decision-makers

and that input from the tribes

can be used in determining if a

project should proceed as

planned or should be modified

a-96

in some way. Thus we further

sought to determine if the

Havasupai Tribe desired to meet

with the Forest Service to

discuss measures which might

mitigate potential harm to the

sites.

Id. at 1417. The letter notes that the

applicable regulations require thirty day

notice to affected tribes and further

acknowledges Ms. Vick’s February 15, 1985

letter. The letter notes that it had been

over eighty days since the Forest Service

notified the tribe and that several

unsuccessful attempts were made to contact Ms.

Vick. Id. Further, the letter requested a

meeting to discuss mitigation measures. Id.

Finally, the letter notes that the Forest

Service had received repeated inquiries from

Abajo Archaeology on its permit and that the

Forest Service would proceed with issuance of

the permit “unless we have heard from you

within two weeks of your receipt of this

letter.” Id. at P.1417. The record fails to

indicate a response to this inquiry by the

a-97

Havasupai. The Havasupai argue that there is

no statutory duty to respond. The court

agrees. However, “it is still incumbent upon

intervenors who wish to participate to

structure their participation so that it is

meaningful, so that it alerts the agency to

the intervenors’ positions and contentions

this is especially true when the intervenors

are requesting the agency to embark upon an

exploration of uncharted territory .. .” such

as Indian religious beliefs. Vermont Yankee,

435 U.S. 551, 553, 98 S.Ct. 1197, 1216

(1978). The April 8, 1985 letter is

indicative of the Forest Service’s efforts to

obtain information from the Havasupai

concerning the religious and cultural

significance cf the Canyon Mine site and to

solicit suggestions which might mitigate

potential harm to the site.1® By memo dated

16 Plaintiffs contend that there is a

distinction between approval of an excavation

permit and approval of the plan of

operations. The contacts concerning the

(Cont. )

a-98

April 23, 1985, the Forest Supervisor

indicated that it had received no response to

its April 8, 1985 letter to Ms. Vick and that

the permit should be issued. V.3A-D.94-

P.2896. In May of 1985, the Forest Service

issued a permit to Abajo Archaeology. The

record fails to indicate any Havasupai

objection to this activity or any suggested

interference with their religious and cultural

beliefs.

The scoping process officially began on

April 30, 1985 with the publishing of the

notice of intent to prepare an EIS. V.1B-D.3-

P.487. The Forest Service solicited comments

to help define the issues to be considered in

the draft EIS. A scoping meeting was held on

May 15, 1985 to define the issues for the

draft EIS. Id. Prior to the official scoping

excavation permit are indicative of the Forest

Service’s effort to gain information from the

Havasupai and of the plaintiffs’ failure to

provide such information.

period, on March 13, 1985, Joe Sparks wrote a

letter (which has been characterized by the

plaintiffs as a “scoping letter”) to Mr.

Lund. V.3A-D.94-P.2891. The letter did refer

to “sacred” springs in the context of the

groundwater aquifer of the area. Id. The

letter did not raise any issue of the

religious significance of the Canyon Mine site

itself. It is difficult to understand why

plaintiffs were able to reveal this religious

issue and not reveal any religious conflicts

occurring at the mine itself.

In March of 1985, EFN representatives

traveled to Supai Village and met with the

entire Havasupai Tribal Council over a period

of two days. EFN representatives described in

detail the location of the mine site, the

preceding decade of exploration work at the

site, and the proposed activities of EFN.

V.4B-D.215-P.4533-34 (Intervenor’s Reply to

Statement of Reasons of Various Appellants

Opposing Approval of EFN Plan of Operation) ;

a-100

V.2B-D.43-P.1548-52 (Affidavit of Brad

Doores). Present at the meeting were the

Tribal Council, EFN representatives; John R.

Adams, Chairman of the Board, Robert M.

Steele, mining engineer, and Brad Doores. Id.

at P.1548. The affidavit of Mr. Doores

indicates that Mr. Adams described the

location of the proposed mine site and

described the extent of the surface

disturbance at the site. Id. at P. 1549. Mr.

Steele asked if anyone from the council had

any questions. Id. at 1550. Though questions

were raised, no issues were raised during the

meeting concerning the religious or cultural

significance of the mine site. Id. at P.1550-

52.

The record indicates that the Havasupai

Tribe was provided with a regular opportunity

to participate in the NEPA process and stay

abreast of the mining proposal and raise any

issues of concern to it. See e.g., V.3A-D.94-

P.2855-56 (Memorandum in Opposition to Stay of

a-101

EFN Mining Plan of Operation); Id. at P.2903

(groundwater report); Id. at 2904

(radiological assessment); Id. at 2917

(groundwater monitoring program).

A letter from the Forest Supervisor on

December 5, 1985 to Ed McElwain, Tribal

Planner, is indicative of the manner in which

the NEPA process was conducted. Id. at

2917. The letter states:

The draft environmental impact

statement for the Canyon Mine

proposal will be available for

public distribution soon.

Comments of the Havasupai

Tribe, received in response to

our previous letters, have been

incorporated into the

analysis. At this time, we ask

if any additional issue or

concerns have surfaced since

your last correspondence to us

that should be addressed in the

environmental impact statement

before the initial printing.

Id. The record fails to reflect any response

to this letter or any additional concerns by

the Havasupai Tribe prior to the publishing of

the draft EIS in December of 1985 and released

to the public in February of 1986.

a-102

The draft EIS notes that “no specific

sacred sites at the mine site had been

identified near the mine site or any of the

proposed ore haul routes.” V.1A-D.1-P.124.

The Chief of the Forest Service notes and the

court agrees that: “There were several points

in time when it would have been logical for

the Havasupai to have objected to the

disturbance of the Canyon Mine site, yet such

objections were not made.” V.3D-D.186-P.3918

(Decision of the Chief re: Request for Stay

of Administrative Decision). Plaintiffs

contend that it is sacrilege to tell about

their religion and that they did not think it

would be of any value. Regardless of the

reason for the plaintiffs’ failure, it further

supports the absence of a record on the

religious concerns during the NEPA process.

By letter dated May 12, 1986, comments on

the draft EIS were made on behalf of the

Havasupai. V.1B-D.4-P.766 (Appendix 6 to

Final EIS). This letter contained the first

a-103

mention by the Havasupai that the mine site

had religious significance. The substance of

those comments were:

Traditional camps and burial

sites are located within the

proposed mine area which are

sacred to the Supai

Detailed identification of the

religious, cultural and

ceremonial significance of the

site would be considered

sacrilege by the Tribe.

However, in the Tribe’s effort

to protect this site they have

authorized us [Sparks & Siler]

to disclose the following

information.

The proposed mine site lies in

the path of the Coconino

Kachina who is sacred to the

Supai and is the Guardian of

the Canyon for the Hopi.

The mine site also lies across

the Red Paint and Salt Trails

which are sacred to the Supai

and which were recognized as

such by Congress in the Grand

Canyon Enlargement Act... .

Id. The letter also states that AIRFA

required that the no action alternative shoul

be implemented. Id. at P.766. These general

claims came after a substantial period of

a-104

dialogue had occurred between the parties.’

The Forest Service received a second set

of comments from Vice Chairman Alfred Hanna

dated May 30, 1986. However, these comments

did not mention any religious significance of

the mine site. V.3A-D.94-P.2928.

The issue concerning the religious

significance of the Canyon Mine site was

ultimately brought to the attention of the

Forest Service. There is no statute, case law

or other authority that requires the Forest

Service to accept any comments or statements

at face value. Consistent with the policy of

AIRFA and its obligations under NEPA, the

Forest Service immediately tried to develop

additional substantive information concerning

17 The comments provided little substantive

information to the Forest Service. Compliance

with CEQ Regulations requires that comments

shall be “as specific as possible.” 40 C.F.R.

§ 1503.3. It is of some significance to

compare the detailed comments the Havasupai

Tribe gave on their groundwater concerns with

the initial expression of their religious

concerns.

a-105

each of the comments so that they could be

considered in the administrative process. The

Administrative Record reflects that the Forest

Service pursued efforts to gain additional

information on three fronts. See V.2A-D.37-

P.1164-68 (Responsive Statement for Canyon

Mine appeal). First, the Forest Service

contacted the Havasupai for more

information. Second, the Forest Service

contacted Dr. Euler, an anthropologist long

associated with the Havasupai for his views.

Third, the agency researched the available

literature.

The Forest Service first contacted the

Havasupai by letter dated June 11, 1986.

V.3A-D.94-P.2939. The letter is important in

several aspects. The letter notes the

surprise of the Forest Service, since no one

had made any reference to such an issue during

the scoping process or during periodic

consultations with the tribe. Id. It goes on

to state: ‘*”Nevertheless, we fully appreciate

a-106

the significance of your comment and which to

begin working with the Tribe immediately to

identify any religious or cultural sites which

might be affected by development of the mine

or associated haul routes so that any impacts

can be fully evaluated in the final EIS.”

Id. The Forest Service again requested an

immediate visit to the mine site and noted

that additional information was “absolutely

necessary to evaluate potential impacts and to

plan avoidance or mitigation measures which

will protect tribal religious freedoms and

respond to your concern,.” 1a. 18 The letter

further noted that it was important to proceed

quickly, and requested that the mine visit

take place within two weeks. Id. This letter

is indicative of the Forest Service’s effort

18 The Havasupai assert that there can be no

mitigation and no compromise. They do not

want any mining to occur at the Canyon Mine

site or in the area of the Grand Canyon.

E.g., V.3D-D.176-P.3747; V.2C-D.62-P.1929;

1934, 1963; V.2A-D.37-P.1333.

a-107

to gain information on the Havasupai religious

concerns and to confer about those concerns in

the context of mitigation and protection of

the Tribe’s religious freedoms.

The next contact is a letter dated June

26, 1986 by Wayne Sinyella to the Forest

Supervisor. V.3A-D.94-P.2940. The letter

requested an additional sixty days to respond

to the June 11, 1986 letter asking for

information on the religious significance of

the Canyon Mine site.

The Havasupai had agreed to meet with the

Forest Service at the Canyon Mine site, but

apparently cancelled the meeting. By letter

dated July 2, 1986, the Forest Supervisor

wrote to Mr. Sinyella regarding the Tribe’s

cancellation of the joint inspection at the

Canyon Mine site. Id. at P.2941; see V.1B-

D.3-P.472. The letter notes that the visit

needed to be concluded within the next

fourteen days so that the information could be

included in the final EIS. V.3A-D.94-

a-108

P.2941. The record fails to reflect any

response to this letter or that any joint

inspection at the Canyon Mine site occurred.

By letter dated August 1, 1986, Mr.

McElwain gave notice to the Forest Supervisor

that the last comments that the Havasupai

would make for inclusion in the final EIS

would be mailed shortly. Id. P.2942. By

letter dated August 4, 1986, the Havasupai did

submit three comments, including one entitled

“Determination of Impacts to Religious and

Cultural Resources.” Id. at P.2944, 2948.

There, the Havasupai alleged that the process

used by the Forest Service has been faulty.

Id. at P.2948. The Havasupai allege that

other members should have been contacted and

that the Forest Service should have made more

of an effort to work for a mitigation. Id.

The Forest Service tried to elicit information

from the Tribal Chairman, the Tribal Planner,

legal counsel, the Tribal Counsel. These were

the logical persons to contact. The letter

a-109

relating to “Additional Comment on Canyon Min

EIS” while attacking the process of the Fores

Service, did not provide any additional

substantive information on the religious

concerns of the Havasupai. The August 4, 198

letter was specifically addressed by the fina

EIS in a special *"Addendum to Appendix G.”

V.1B-D.4-P.872.

In addition to contacting the Havasupai

directly, the Forest Service contacted Dr.

Robert Euler with respect to the Havasupai’s

religious concerns expressed in their May 12,

1985 comments. V.4B-D.215-P.4671, 4674

(Intervenor’s Reply to Statement of Reasons o

Various Appellants Opposing Approval of EFN

Plan of Operation). Dr. Euler’s knowledge of

the Havasupai was based upon some thirty year

of experience working with the and studying

the Tribe, including testifying on behalf of

the Havasupai before the ICC. Dr. Euler met

with the Forest Service in Williams, Arizona

and spoke with Forest Service representatives

a-110

on the telephone. [Id. at P.4673. Dr. Euler

was asked about the concerns expressed in the

May 12th letter. Dr. Euler was unable to

provide any information that would confirm

that a conflict existed between the mine and

any specific Havasupai religious practices or

sites. Id. at P.4677-80. Dr. Euler

acknowledged that “(i]t is possible that facts

concerning certain religious or cultural

practices and sites of the Havasupai may exist

but are not known to me.” Id. at P.4674.

Plaintiffs dispute Dr. Euler’s knowledge.

Plaintiffs claim to be the only real experts

on their religion. This is difficult to

dispute. However, plaintiffs failed to

provide sufficient information or identify

specific religious areas at the Canyon Mine

site. Plaintiffs protest the fact that Dr.

Euler’s participation was not given more

prominent attention in the final EIS. The

final EIS, however, notes that the Indian

experts were only one among three sources each

a-111

of whom failed to identify “specific Indian

sacred or religious sites ... near the mine

site.” V.1B-D.3-P.651-52; V.1B-4-P.771. The

plaintiffs requested disclosure of the Indian

“exert”. V.2A-D.30-P.1090; see C.F.R. §

1502.17. The Record indicates that Dr. Euler

did not play a major role in the EIS

preparation. His opinion ultimately proved to

be consistent with the plaintiffs’ failure to

identify specific religious sites at the

Canyon Mine site. The failure to identify Dr.

Euler earlier in the NEPA process does not

constitute a defect in the EIS preparation

which would require preparation of a new EIS

or a supplement thereto.

The last avenue the Forest Service

pursued to obtain additional information on

the Havasupai religion as it related to the

Canyon Mine site (the May 12, 1986 letter) was

a review of the available literature. This

information did not appear particularly useful

in confirming the Havasupai’s claims. See

a-112

wioricniiaiane eee

V.2A-D.37-P.1160, 1336-1405 (Responsive

Statement for Canyon Mine Appeal Exh. 7).29

The Forest Service’s efforts were

documented in the final EIS which provides:

The potential impact of the

Canyon Mine on Indian religious

sites and practices was

considered in the DEIS in

conjunction with a general

analysis of impacts on American

Indians. Comments on the DEIS

by the Hopi and Havasupai

Tribes alleged that religious

sites and practices would be

adversely atfected by the

Canyon Mine, a concern which

was not raised by the Tribes

during scoping or earlier

consultation with the Tribes.

Based on those comments, and

continuing consultation with

the affected Tribes, the Forest

Service has added Indian

religious concerns to the list

of issues evaluated in detail

by the EIS. The text of the

FEIS includes an expanded

discussion of Indian religious

19 Plaintiffs claim that the review was not

thorough in light of the failure by the Forest

Service to examine Dr. Euler’s previous work

(see Plaintiffs’ Responsive Brief, Ex. A).

The record, however, reflects that a 1974

edition of this work was considered and

included in a Bibliography of materials on the

Havasupai. Id. at P.1404; V.2A-D.37-P.1160.

a-113

sites and practices in the

affected area. The Forest

Service has also requested a

meeting with tribal

representatives at the proposed

mine site to identify any

specific sacred sites that

might be disturbed by mining

activity. to date, neither

Tribe has committed to a visit

to the mine site.

Consultations with the Tribes

regarding religious concerns

will continue beyond the

completion of the NEPA

process. V.1B-D.3-P.472.

The final EIS continues:

In completing this environment-

al impact statement, the Forest

Service has attempted to

identify Indian concerns, both

religious and environmental,

through the formal scoping

process and through informal

consultation with tribal

leaders.

The Hopi and Havasupai Tribes

have suggested that sacred

religious sites, including

ruins, graves and hunting areas

exist at or hear the mine site

and haul routes. However,

consultation with the Tribes

and experts on Indian religious

sites and practices as well as

archeological inventories have

failed to identify any specific

Hopi or Havasupai sites of

sacred or religious

significance near the proposed

a-114

mine site. Jd. at P.608.

Finally, under the section Environmental

Impacts on Indian Religious Concerns, the

final EIS provides:

After communications and

consultation with Hopi and

Havasupai Tribal leaders and

experts on Indian religious

sites and practices as well as

an archeological investigation

of the mine site, no specific

Indian sacred or religious

sites have been identified near

the mine site. The Tribes

maintain that Indian religious

interests will be adversely

affected but have not

identified specific sites which

are threatened. In addition, a

review by an expert in Indian

religious sites and practices

had failed to identify sites

that would be affected by the

proposed action. Consultation

with tribal leaders will

continue. Id. at P.651-2.

The Record of Decision again reflects the

Forest Service’s findings, wherein it sets

forth:

“(T]he current level of

religious activity is not

expected to be curtailed by any

alternative nor will access to

any known religious sites or

area be restricted. Although,

a-115

there is no physical evidence

of Indian religious activity at

the mine site itself, the

Havasupai have recently stated

that sacred camping and burial

sites are present in the

general area north of Red

Butte, and perhaps at the mine

site itself. However, the

Havasupai Tribe refuses to

disclose the location of the

sites. The Havasupai Tribe has

also recently stated that the

general area around the mine is

important to the tribes

religious well being because it

lies within the sphere of

existence or a continuum of

life extending generally from

the Grand Canyon to Red Butte.”

V.1B-D.6-P.923.

In sum, the Forest Service responded

directly to the comments in the draft EIS

regarding Havasupai religious concerns

contained in the May 12, 1986 and August 4,

1986 letters in the final EIS and Record of

Decision.

The EIS process closed and the final EIS

and Record of Decision were released on

September 26 and 19, 1986. The Forest

Service, consistent with its statements in the

final EIS, pursued the matter with the

a-116

Havasupai Tribe. On August 28, 1986

representatives of the Forest Service met with

members of the Havasupai and Hopi Tribes in

Tusayan, Arizona. See V.3A-D.80-P.2705. By

letter dated September 8, 1986, Joe Sparks

summarized the meeting and the concerns of the

Havasupai Tribe. Id. The letter states, in

part:

The Havasupai Tribe has

informed you that the Canyon

Mine site is a sacred religious

site within larger sacred

areas. For the reasons set

forth in this letter the Tribe

cannot, without risk of

religious sacrilege and

interference with and

disruption of the present and

future practice of their

religion, explain anymore (sic)

than what was told to Mr. Lund

and Mr. Chacon last week.

The site is within the large

area south of Red Mountain that

includes the path of the

Coconino Kachina and the sacred

Red Paint Way and sacred Salt

Way. The proposed mine will

destroy the continuum of life

which is indispensable and

central to the Havasupai

religion.

The site is also very near the

a-117

burials of Havasupai Tribal

members, whose living relatives

participated in the burial

ceremonies. Id.

The September 8, 1986 letter notes that

what appears to be a newly state religious

concern with focus upon the Havasupai

“continuum of life”. The administrative

appeal process provided the plaintiffs

additional opportunity to make their religious

concerns known to the Forest Service and EFN.

Plaintiffs contend that there is no

statutory deadline for publication of the

final EIS and that the Forest Service should

have done an extensive study on the Havasupai

religious claims as done in Lyng. In Lyng,

however, the Indians made it perfectly clear

that the proposed actions would infringe on

their religious beliefs and gave information

that led to the study. A determination of the

need for such a study would be in the agency’s

discretion. Under the circumstances of this

case, the Forest Service’s conduct was

a-118

reasonable. Plaintiffs who claim to be the

only experts on the Havasupai religion would

not speak of their religion directly or reveal

details concerning the manner in which the

proposed mining activity would interfere with

their religious beliefs and or practices.

V.3B-D.122-P.3142 (Havasupai Tribe

Affidavit). The Forest Service studied the

effects of the mining plan on American Indians

in general. It was not unreasonable to

conclude that a further study would have been

unproductive. Accordingly, it was not an

abuse of the agency’s discretion not to

conduct further studies under the facts and

circumstances of this case.

Finally, in letter dated September 24,

1986, the EFN responded to the Havasupai

Tribe’s concerns raised in the meeting and the

September 8th letter. V.3A-D.94-P2953. EFN

requested specific information on the

religious practices so that it could evaluate

the claimed conflict and try to avoid or

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lessen any possible impact. The record fails

to indicate a response to this letter.

It is clear from this analysis, that the

Forest Service complied with NEPA and took the

required “hard look.” The Havasupai

continuously claim that they are the only ones

that know their religion, yet the record

clearly shows that they were not forthcoming

on the subject during the scoping process or

the comment period leading up to the

publication of the final EIS, nor would they

identify specific sites of religious

significance. The Havasupai Tribe argues that

the Forest Service did not make a sufficient

effort, but the record reflects that the

plaintiffs did not respond to numerous

attempts for more specific information.

The Supreme Court has stated that:

{[Ajdministration proceedings

should not be a game or a forum

to engage in unjustified

obstructionism by making

cryptic and obscure reference

to matters that “ought to be”

considered and then, after

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failing to do more to bring the

matter to the agency’s

attention, seeking to have that

agency determination vacated on

the grounds the agency failed

to consider matters “forcefully

presented.”

Vermont Yankee Nuclear Corp., 435 U.S. 519,

553-54, 98 S.Ct. 1197, 1217 (1978). The

issued raised in the May 12, 1986 letter

resemble the types of cryptic references that

were viewed unfavorably in Vermont Yankee.

The court recognizes that the nature of the

Havasupai religion is inherently a personal

and secret issue. However, the law requires

revelation in exchange for further

recognition, consideration, and mitigation.

The Forest Service took every reasonable step

to develop these comments and discussed each

in the final EIS. The Forest Service agency

repeatedly sought clarification of plaintiff’s

comments. However, the Administrative Record

reflects that the Havasupai declined to

participate or structure their participation

in a meaningful manner during the

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administrative action. Accordingly, the

plaintiffs cannot complain that the agency’s

consideration of their religious concerns was

inadequate.

The court finds and concludes that the

Forest Service took appropriate action under

NEPA and the policy of AIRFA to investigate

and consider the religious concerns of the

Havasupai Tribe. The Forest Service complied

with the applicable laws and did not make any

findings that were arbitrary or capricious

under the facts and circumstances of this

case.

Cc. Wa drolo

Analysis

Plaintiffs allege numerous deficiencies

regarding the hydrologic and hydrogeologic

analyses contained in the EIS. Plaintiffs

argue that the EIS should be supplemented to

correct these deficiencies. The court

disagrees and finds and concludes that the

agency took appropriate measures to

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investigate and consider these issues.

Plaintiffs contend that the “unique and

special geological conditions of the Canyon

mine area were not considered in the water

analysis. intiffs’ in ief, at

81. The record clearly reflects that the

particular geological conditions of the Canyon

Mine area were thoroughly considered in the

water analysis. The Forest Service retained a

consulting hydrologist who had primary

responsibility in coordinating this area of

the EIS. See V.1B-D.3-P.657. Appendix “F*” to |

the draft EIS is the report on “Groundwater

Conditions” for the Canyon Mine region

prepared by Errol L. Montgomery & Associates,

Inc. (*"EMA”). V.1A-D.2-P.383-460. The

"Groundwater Conditions” report includes

extensive considerations of hydrogeologic

conditions, structural features and

characteristics of breccia pipe formations,

water well data from over 150 existing wells

and exploration bore holes in the Canyon Mine

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site area, groundwater circulation and

chemical quality of groundwater, and a

groundwatering monitoring program. The EIS

discusses actual data relating to previous

drilling in the Canyon Mine site. V.1A-D.2-

P.404-05, 432-36 (table 1). The EIS notes the

specific nature of the breccia pipe

deposits. Id. at P.391. The EIS reflects

that the Havasupai received portions of the

groundwater report and by letter dated

September 10, 1985, EMA further explained the

results of the chemical analyses to the Mr.

McElwain, Tribal Planner for the Tribe. Id.

at P.452-56.

With respect to surface water, Appendix

“D™ to the draft EIS is a report on

“Downstream Hydrologic Impacts” by Dr. Charles

Leaf. V.1A-D.2-P.312-37.

The Record reflects that these reports

and the draft EIS went to numerous federal,

state, and local agencies, including the EPA

and the Department of the Interior. Id. at

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P.153-54.

Plaintiffs contend that the Forest

Service failed to consult with the United

States Geological Survey, however, the

U.S.G.S. is a subaqency of the Department of

the Interior and the Department did receive

and comment upon the EIS. Plaintiffs also

contend that federal and state nuclear

regulatory agencies should have been

consulted. Uranium mining had been exempted

from regulatory requirements of these

agencies. See Reporter’s Transcript of

Proceedings, vol. 7, at 42-43 (Jan. 10, 1939 ;

id., vol. 10, at 27-28 (Jan. 13, 1989). The

EPA was consulted and it had responsibility to

deal with the environmental concerns (i.e.,

leaching) raised in the Plan of Operations.

The court finds and concludes that the Forest

Service circulation of the Plan was reasonable

and appropriate.

The Havasupai and their counsel submitted

numerous comments to the Forest Service

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concerning the surface and groundwater

reports. V.1-B-9.4-P.767-67, 778, 872-873.

The Forest Service responded in detail to

every comment submitted by the plaintiffs.

See Id. at P.772-73, 779-80, 875. The Forest

Service transmitted plaintiffs comments to the

consulting firms for review and response. EMI

supplemented its earlier report specifically

responding to plaintiff’s contentions. V.2B-

D.43-P.1616-53. The final EIS contained an

expanded discussion on potential groundwater

impacts. V.1B-D.3-P.472.

After the Record of Decision was

published, the Havasupai Tribe continued to

challenge the groundwater and surface water

analyses. Dr. David K. Kreamer, an expert

hydrologist and consultant to the Havasupai

Tribe, gave an opposing viewpoint on the

studies previously done on behalf of the

Forest Service. See V.2B-D.59-P.1811-12. Dr.

Kreamer contended during the administrative

process that this information was not

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sufficiently site related. See Id. The

Forest Service expert, EMA, directly responded

to those contentions. V.4C-D.234-P4921-

26.79 ‘There was no need to consider the

specific geological information regarding

breccia pipe formations and the aquifer

underlying the site.

Plaintiffs also argue that there are no

information is available for assessment of

potential for groundwater contamination from

mine operations, and results of extremely

conservative analyses indicate that this

potential is low.” Id. at 4922.

The report also concludes: ‘For

environmental impact investigations, technical

assumptions are combined with available data

to project impacts. In hvdrogeologic

investigations, as for other sciences that

evaluate natural conditions in the field, the

technical assumptions are selected to provide

conservative estimates with a sufficient

measure of safety regarding conditions that

are not known precisely. For the Canyon Mine

groundwater investigation, extremely

conservative assumptions were used to prepare

quantitative estimates for potential impact.

Results of construction and testing of the new

monitor/supply well at the Canyon Mine have

provided valuable site-specific data that has

confirmed many of the previous assumptions for

the site.” Id. at P.4921.

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studies in the EIS which indicate that a

single monitoring well will detect

contamination from the mine site. V.1B-D.3-

P.778. This contention did receive

substantial consideration by the Forest

Service. See V.1B-D.3-P.530, 649; Id. D.4-

P.764-65, 773, 796; V.2A-D.37-P.1151; V.2D-

D.64-P.2325-26; V.4B-D.214-P.4259-61, 4266-67,

4272; V.4C-D234-P.4919-20. With regard to the

direction of the flow of water, the Forest

Service expert responded that “[t]he

monitoring/supply well would be within the

area where seepage would encounter the

groundwater table, regardless of the direction

of movement of the seepage after it mixes and

is diluted with the groundwater. The precise

direction of groundwater movement in this

aquifer at the mine site is not required to

establish an effective monitoring program to

detect potential contamination from mining

operations.” V.B-D.214-P.4272. ‘*”The

monitor/supply well is located near enough to

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the breccia pipe to be within the basal area

of the inverted cone of percolation.

Therefore, the well is located properly.”

V.2A-D.28-P.1001.

The Forest Service clearly addressed the

capability of the monitoring well to detect

contamination in the Canyon Mine area. The

Forest Service expert concluded that “the well

and existing pump assembly are capable of

creating a cone of depression in the

groundwater table which would intercept

potential contaminants and thereby provide

both a monitoring capability for early

detection and a facility for reclamation of

potentially contaminated groundwater.” V.4B-

D.214-P.4267.

Plaintiffs also contend that in the event

that contamination is detected at Havasu, Blue

and Indian Garden Springs, it would be too

late for reclamation. The Forest Service

expert, EMA, made it clear that the on-site

monitoring of the well was not intended to

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comprise the sole reclamation effort in the

unlikely event of groundwater contamination:

“Additional wells might be required to conduc

proper reclamation. However, it is neither

standard nor good practice to design and

implement a reclamation system before

contamination is detected ... .” V.4C-D.234

P.4919.

Plaintiffs further argue that the

exposure of the radioactive materials in the

naturally occurring rock will increase the

leaching process and contamination into the

groundwater. The approved plan of operation

calls for waste materials to be put back, into

the mine site after completion of the mining

operations. B.1-D.1-P.56. It is unclear wha

deficiency plaintiffs allege. The Forest

Service discussed this issue in detail. V.1A

D.2-P.426-27; V.1B-D.3-P.647-50; V.1B-D.4-

P.772. It is undisputed that some leaching i

occurring now, as well as in the past. V.1A-

D.2-P.426-27. Some leaching is likely to

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occur after mining. Id. at P. 426-27.

Apparently, the amount of leaching will be

reduced since EFN will mine and remove the

richest mineralized rock. See Id. at P.426-

27. This matter has been fully considered by

the Forest Service.

In conclusion, as the administrative

process progressed, EMA responded and

supplemented its reports to various issues

raised by the Havasupai Tribe and others.

Plaintiffs are basing their arguments upon

disagreements among experts. A disagreement

among experts does not invalidate an EIS. See

Cady v. Morton, 527 F.2d 786,796, (9th Cir.

1975) (citing Life of the Land v. Brinegar,

485 F.2d 460, 472 (9th Cir. 1973). An EIS

does not have to resolve all contentions so

long as it sufficiently identifies them so

that the decision maker can make an informed |

decision. Warm Springs Dam Task Force v.

Gribble, 565 F.2d 549, 554 (9th Cir. 1977).

As to the issues raised by the Havasupai

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Tribe, they were examined in detail, responded

to, and resolved consisted with the NEPA

process; - nothing more is required under

NEPA. The fact that plaintiffs disagree with

the result is insufficient to show that there

has been a deficiency in the NEPA process.

D. Disposal of Radioactive Waste

Lastly, plaintiffs object to the final

EIS on the grounds that it impermissibly

bifurcates the project by only addressing the

mine, and not considering the disposal of

radioactive waste generated by the mine.

Plaintiffs’ objection could be construed

several ways. First, plaintiffs could be

concerned with the disposal of high level

nuclear wastes generated by end users of the

mine’s products. The final EIS addresses this

issue at V.1A-D.3-P.487. The Forest Service

determined that questions regarding the off-

site generation and disposal of high level

nuclear waste would not be addressed by the

EIS because those concerns were too far

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removed from the project. The court agrees.

There is no indication that the production of

such waste will have any impact on the mine or

surrounding areas. Furthermore, projects

generating high level nuclear waste would have

to comply with a broad range of applicable

regulations, including the NEPA. 2+

Plaintiff’s objection could also be

construed as a concern over the manner of

disposing of uranium ore extracted from the

mine with too low an ore content to

economically transport for processing. The

final EIS proposes either hauling such ore to

a previously approved location, or disposing

21 plaintiffs reliance on City of Rochester

v. United States Postal Service, 541 F.2d 967

(2nd Cir. 1976), and j

Vv , 518 F.2d 1089 (9th Cif.

1975) is misplaced. In those case

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