Ninth Circuit Upholds BLM's Decision To Allow Uranium Mine -- Idled For Seventeen Years -- To Reopen Without A New Plan Of Operations Or Supplemental NEPA Review

On February 4, 2013, a Ninth Circuit Court of Appeals panel issued a ruling in Center for Biological Diversity v. Salazar holding that a mine idled for seventeen years could restart operations without obtaining a new approval from the Bureau of Land Management (BLM) or conducting additional environmental review. The Ninth Circuit's ruling is notable because it clarifies that:

(1) The need for new ancillary permits for an already-approved federal project -- even after being idle for seventeen years -- does not create a "major Federal action" requiring supplemental environmental analysis under the National Environmental Policy Act (NEPA);

(2) A mine may be idle for extended periods of time if the mine is maintained in accordance with an interim management plan set forth in a plan of operations; and

(3) There is no provision under the BLM's surface management regulations (43 CFR subpart 3809) requiring a new plan of operations to restart mining operations following a period of idleness.

Background

The case involved the re-opening of Denison Mines Corporation's and Denison Arizona Strip, LLC's (Denison) uranium mine (the Arizona I Mine) following a seventeen-year period of idleness at the mine. The mine is located on federal lands managed by the BLM in Mohave County, Arizona, approximately 10 miles from the Grand Canyon. The BLM approved a plan of operations for the mine in 1988 after preparation of an Environmental Assessment under NEPA for the mining activities. Denison's predecessor idled the mine in 1992 when uranium prices dropped.

Following idling of the mine, Denison and its predecessor complied with the requirements of the interim management portion of the 1988 plan of operations, maintaining buildings, mine shafts, gates, fences and signage, and maintenance and payment of various bonds, taxes and fees. Denison then proposed restarting operations in 2007 when uranium prices rose, and as part of this process, the BLM required Denison to obtain new state air and water permits, update its reclamation bond, and obtain authorization from Mohave County to improve and maintain a right-of-way accessing the mine site.

The Ninth Circuit Rules that No New Approval or NEPA Review Was Required to Restart Mining

Appellants, a consortium of various environmental and tribal interests, filed suit in late 2009, asserting that Secretary of Interior Ken Salazar and the BLM violated FLPMA by allowing Denison to resume operations based upon the 1988 plan of...