# Petition for Writ of Certiorari — Havasupai Tribe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0023%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 503 U.S. 959 ## Text 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 ai 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. 16 16 16 16 16 16 28 28 28 42 36 36 U.S.C. U.S.C. i Fe oe U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. i x - C.F.R. 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, 14 14 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. 16 U.S.C. § 228i provides in pertinent part: 1 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- a 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. 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 16 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: 4 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- Ww 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, Ve 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 ve 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 a 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 2 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 4 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 a-60 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 a-64 —_—" 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0023%3A1. Public record. Not legal advice.