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1 Case :-cv-0-dgc Document Filed 0/0/ Page of ROBERT G. DREHER Acting Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice DOMINIKA TARCZYNSKA, NY Bar No. JOHN S. MOST, VA Bar No. Natural Resources Section P.O. Box Washington, D.C. 00- (0) 0-0 (Tarczynska) (0) - (Most) (0) 0-00 (fax) DOMINIKA.TARCZYNSKA@USDOJ.GOV JOHN.MOST@USDOJ.GOV Counsel for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PRESCOTT DIVISION 0 GREGORY YOUNT, v. Plaintiff, pro se, S. M. R. JEWELL, SECRETARY OF THE INTERIOR, et al., and Federal Defendants, GRAND CANYON TRUST, et al., Intervenor-Defendants. Case No. :-cv-0-pct-dgc (Lead Case) STATEMENT OF FACTS IN SUPPORT OF FEDERAL DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT

2 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 NATIONAL MINING ASSOCIATION, et al., Plaintiffs, v. S. M. R. JEWELL, SECRETARY OF THE INTERIOR, et al., and Federal Defendants, GRAND CANYON TRUST, et al., Intervenor-Defendants AMERICAN EXPLORATION & MINING ASSOCIATION, v. Plaintiff, S. M. R. JEWELL, SECRETARY OF THE INTERIOR, et al., and Federal Defendants, GRAND CANYON TRUST, et al., Intervenor-Defendants. QUATERRA Alaska Incorporated, et al., v. Plaintiffs, S. M. R. JEWELL, SECRETARY OF THE INTERIOR, et al., and Federal Defendants, GRAND CANYON TRUST, et al., Intervenor-Defendants. Case No. :-cv-00-pct-dgc Case No. :-cv-00-pct-dgc Case No. :-cv-00-pct-dgc

3 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 Statement of Facts in Support of Federal Defendants' Cross-Motion for Summary Judgment On January, 0, after more than two years of careful and well-documented analysis by Interior and the Forest Service, the Secretary signed the ROD for the Northern Arizona Withdrawal challenged in this case. AR (ROD). On this same day, the Secretary also signed Public Land Order, AR, which implemented the decision, withdrawing approximately,00, acres of federal lands located near Grand Canyon National Park ( the lands or the withdrawal area ) from location and entry under the Mining Law of. 0 U.S.C. -; see also AR,,. A. Uranium Mining in Arizona Uranium is a mineral locatable under the Mining Law, see C.F.R. 0., 0.(a), and often occurs naturally in northern Arizona in connection with pipeshaped breccia bodies, generally about 00 feet in diameter and extending several thousand feet below the surface. AR, (USGS Report), (depicting cross-section of collapsed breccia pipe), (papers describing breccia pipes). Uranium exploration and mining began in northern Arizona in the late 0s and, following significant price increases, expanded in the late s and 0s. AR. From to, prospectors drilled more than 00 exploratory holes in the withdrawal area. Id. By the early s, seven uranium mines located within what is BLM manages approximately, acres north of the Park and the Forest Service manages approximately, acres, mostly south of the Park. AR (0 Report to Congress); (errata to ROD);. The remainder of the.00 million acres withdrawn is split-estate land, where the surface is in non-federal ownership and the mineral estate is owned by the United States. AR.

4 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 now the withdrawal area had each produced more than 00,000 pounds of uranium oxide (and in some cases substantially more). AR (USGS Report). Although the uranium market dipped sharply in the mid-s, the price of uranium oxide increased from about $ per pound in 00 to $ per pound in June 00. AR, AR 0, AR. This price spike spurred considerable interest in mining, and prospectors located thousands of new mining claims to a peak of over,000 total mining claims located in the area by 00. Id. As the ROD explained, id., this demand generated public concern about impacts from uranium mining on the natural, cultural, and social resources of the Grand Canyon watershed. See AR,,,, 0, 0,, -, -0, -, -, 0,, 0, -, - (correspondence and testimony expressing concern). In a reflection of these concerns, Representative Raúl Grijalva of Arizona s rd Congressional District introduced a bill in March 00 that, if enacted, would have permanently withdrawn the lands at issue in this case. AR. B. Administrative Proceedings. The Proposed Withdrawal In response to these public and congressional concerns, on July, 00, the BLM filed a petition and application (hereafter petition ) with the Secretary of the Interior to withdraw the lands from location and entry under the Mining Law for up to twenty years, subject to valid existing rights. AR - (petition); see also C.F.R..- (regulation governing submission of withdrawal applications),.- (regulation governing submission of withdrawal petitions). The same day, the Chief of

5 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 the Forest Service consented to the proposal for the lands under his jurisdiction. AR. On the following day, July, 00, the Secretary of the Interior approved the petition and thereby proposed to withdraw the lands. AR ; see also C.F.R. - -(e). On July, 00, Interior published notice of the Secretary s proposal to withdraw the lands in the Federal Register. Fed. Reg. (Notice of Proposed Withdrawal and Opportunity for Public Meeting) (Jul., 00) (AR -). Pursuant to the terms of the notice and section 0(b)() of FLPMA, U.S.C. (b)(), Interior s actions segregated the lands from location and entry under the Mining Law for two years, subject to valid existing rights. AR -. As Interior explained, the purpose of the proposed withdrawal, if determined to be appropriate, was to protect the Grand Canyon watershed from adverse effects of locatable hardrock mineral exploration and mining. Id. As the record indicates, these adverse effects include possible impacts to wildlife, soils, vegetation, cultural resources, wilderness, the viewshed, and natural sounds resulting from the mining operations, as well as the associated impacts to water, wildlife, cultural resources, soils, and vegetation resulting from contamination caused by mining operations. See AR - (National Park Service Briefing Paper for the Secretary), AR 0- (various information memoranda for the Secretary), AR - (white paper addressing environmental considerations), AR - (white paper addressing hydrology), -0 (Preliminary Outline of Natural Resource Occurrence and Potential Impacts). Soon thereafter, Interior commenced efforts to assess the appropriateness of the proposed withdrawal. In conjunction with the Forest Service and numerous other

6 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 cooperating agencies, Interior prepared studies and analyses to evaluate the withdrawal proposal, including an Environmental Impact Statement (EIS) pursuant to NEPA. On August, 00, BLM published in the Federal Register a notice of intent to prepare an EIS analyzing the proposed withdrawal. Fed. Reg. (Notice of Intent to Prepare an Environmental Impact statement for a Proposed Withdrawal in the Vicinity of the Grand Canyon, Arizona) (Aug., 00) (AR -). During the subsequent scoping period, the BLM hosted two public meetings in Fredonia and Flagstaff, Arizona in September and October of 00. AR 0. The purpose of the scoping period, including the meetings, was to identify and describe the proposed withdrawal and the process to the public and allow the public to submit comments. AR 0- (scoping report). The scoping process also helped to identify issues and concerns to be considered in the EIS, and to identify potential alternatives. AR (FEIS). Scoping identified concerns with respect to impacts on the following for consideration in the EIS: air quality, cultural and American Indian resources, economic conditions, social conditions (including environmental justice and public health and safety), soundscapes, wilderness, recreation, special status species, soils, geology and mineral resources, vegetation, visual resources, water, and fish and wildlife. AR, - (FEIS); AR - (scoping report). The BLM also prepared a mineral report for the lands at issue. AR -. The other cooperating agencies include: at the federal level, the National Park Service, the U.S. Fish and Wildlife Service, and the U.S. Geological Survey; at the state level, the Arizona Game and Fish Department, the Arizona Geological Survey, the Arizona Department of Mines and Mineral Resources, and the Arizona State Land Department; the Hualapai Tribe and the Kaibab Band of Paiute Indians; and at the local level, the Arizona counties of Coconino and Mohave, and the Utah counties of Garfield, Kane, San Juan, and Washington. AR.

7 Case :-cv-0-dgc Document Filed 0/0/ Page of 0. The USGS Report At the direction of the Secretary, USGS prepared a report in 0 on possible effects of uranium mining on the natural resources of the region. AR. The report, which was incorporated by reference into the EIS, see AR (FEIS), addressed geological, hydrological, and biological issues related to uranium mining. AR -. Among other things, the report: estimated that the withdrawal area, considering uranium oxide concentrations as low as 0.0%, contained a mean total of, tons of uranium oxide (AR, ); found that uranium mining at four mines in the Kanab Creek area in the 0s led to varying degrees of contamination of nearby soils and water (AR -); see also (AR ) (FEIS); found that water samples indicate that about 0 sites in the Grand Canyon region have exceeded either the primary or secondary maximum containment levels for certain major ions and trace elements and springs and five wells in the Grand Canyon region that are close by or in direct contact with ore bodies contain concentrations of dissolved uranium that exceed the U.S. Environmental Protection Agency maximum contaminant level and are related to mining or natural processes (AR ); noted that floods, flash floods, and debris flows occur in the region and those events can transport substantial volumes of trace elements and radionuclides (AR 0); found that more investigation is needed to understand groundwater flow paths, travel times, and contributions from mining activities (AR ); noted that fractures, faults, sinkholes, and breccia pipes occur throughout the withdrawal area and are potential pathways for water migration (AR 0); concluded that there is limited toxicity data available to evaluate risk to plants and animals, but that herbivores, aquatic species and burrowing animals are of particular concern (AR ); and

8 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 concluded that concentrations of uranium, trace elements, and other radionuclides in native plants and animals have not been investigated in the withdrawal area; therefore, chemical and radiation risks of uranium mining to federal trust resources are unknown (AR, ). The 0 USGS report updated a USGS study that previously estimated the uranium endowment for all geologically favorable areas in northern Arizona; that is, areas favorable to the occurrence of breccia pipes. AR,. The USGS study estimated the presence of approximately. million tons of undiscovered uranium oxide in breccia pipes in all of northern Arizona. Id. Based on this estimate, on subsequent mineral studies in the region, and on updated information acquired in 0 regarding resource density, the 0 USGS report estimated a total mean uranium endowment in the withdrawal area of, tons. AR. In addition to estimating the area s uranium endowment, the 0 USGS report also carefully considered potential impacts to water and soil resources. In reaching its findings on existing contamination, the agency conducted a field assessment of the geochemistry of surface soils, waste rock, and stream sediments at six sites representing various stages of mining in the Kanab Creek area, north of the Park. AR. Of note, that assessment found elevated uranium concentrations (more than times background concentration) at the partially mined Kanab North site in nearby soils especially downslope and downwind. AR,. It also found elevated concentrations of uranium in soil and stream sediments at and near the Kanab South drill site, which had been explored but not mined. AR. Near the Hack mine, reclaimed in the 0s, USGS found ore and waste-rock fragments from mining in a terrace adjacent to a stream channel along with elevated concentrations of uranium and arsenic in

9 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 downstream sediments. AR,. Other sites showed contamination of various levels. See AR - (discussing Pigeon and Hermit mines).. The Draft EIS On February, 0, the BLM published notice of the availability of a Draft EIS ( DEIS ) for public comment, and established a -day comment period. Fed. Reg. (Notice of Availability of the Draft Northern Arizona Proposed Withdrawal Environmental Impact Statement and Revisions to the Withdrawal Application, Arizona) (Feb., 0) (AR -); see also Fed. Reg. (Feb., 0). The DEIS contained four alternatives the withdrawal as proposed, the no action (in this case, no withdrawal ) alternative, and two alternatives that would withdraw some portions of the area but not all. See DEIS, Chapter, AR -. BLM later extended the comment period to days. See Fed. Reg. (April, 0). The BLM held four public meetings after publication of the DEIS in Phoenix, Arizona (March, 0), Flagstaff, Arizona (March, 0); Fredonia, Arizona (March, 0) and Salt Lake City, Utah (March, 0). AR,. Representatives of the BLM also attended three meetings with the Arizona-Utah Economic Coalition on March, 0, April, 0 and September, 0 (AR ) and multiple meetings with various tribal governments. See AR - (listing meetings). The two counties where the withdrawn lands were to be located took opposing views of the proposed withdrawal. Coconino County, Arizona, where the majority of the withdrawn lands were located, including the entire South and East parcels and a

10 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 portion of the North Parcel, supported the withdrawal. AR 0,. Citing environmental problems associated with historical uranium mining operations, the Coconino County Board of Supervisors passed a resolution opposing uranium mining in the proximity of the Park and its watershed and requested a permanent congressional withdrawal of the lands. AR -. The County submitted comments on the DEIS supporting the withdrawal. AR -0. Mohave County, Arizona, where a portion of the North Parcel was located, opposed the withdrawal and passed a resolution urging Congress to preserve access to the uranium reserves of Northern Arizona. AR 0,, 0. Mohave County submitted comments opposing the withdrawal and supporting the no action alternative based upon its concerns of the detrimental economic impact the withdrawal would have on Arizona and surrounding states. AR Given the complexity of issues and volume of comments received, it became apparent the effort could not be completed during the two-year segregation. Consequently, the Secretary, under FLPMA s emergency withdrawal authority in section 0(e), see U.S.C. (e), C.F.R.., issued Public Land Order No., which prevented the location of new mining claims for an additional months, to January 0, 0 and allowed the agency to complete its environmental review process. AR. This preserved the status quo as the Department completed decision making. Id.

11 Case :-cv-0-dgc Document Filed 0/0/ Page of 0. The Final EIS On October, 0, the BLM published notice of the availability of the FEIS in the Federal Register. AR 00; see also AR 0. The 00-page FEIS examined a broad range of environmental, social and economic issues. Chapter, AR -, explained the purpose and need for the proposed action. Chapter, AR -, described the proposed action and the previously-noted alternatives in detail. Chapter, AR -000, examined the environment that would be affected by the Secretary s decision, and serves as a baseline for consideration of the impacts of the various alternatives. Chapter, AR 00-0, analyzed, resource-by-resource, the direct, indirect, and cumulative impacts of each alternative course of action. In addition, the FEIS responded to over,000 comments, AR -0, and identified the proposed withdrawal as the preferred alternative. AR. The reasonably foreseeable development scenario (RFD), which is attached as Appendix B to the FEIS, AR - 0, estimated the development of 0 mines in the withdrawal area over a 0-year period under the no action alternative, AR, up to mines over the same period under the full withdrawal alternative (alternative B), AR, and and mines, respectively, for partial withdrawal alternatives C and D. AR, 0.. The ROD, PLO, and Section 0(c) Report to Congress On January, 0, with the consent of the Chief of the U.S. Forest Service for lands under his administration, AR 0, the Secretary selected the preferred Specifically, the Forest Service Chief explained that the Forest Service had been engaged in the withdrawal process since it began, that the EIS acknowledged possible impacts from uranium mining to water resources and cultural and other resource values and that, based on the EIS, the Forest Service consented to the withdrawal of lands

12 Case :-cv-0-dgc Document Filed 0/0/ Page of 0 alternative and signed the ROD and PLO. AR -, -. That same day, in accordance with FLPMA section 0(c), U.S.C. (c), the Secretary notified Congress of the withdrawal and submitted the required report. AR -. The PLO was published in the Federal Register on January, 0. Fed. Reg. (Public Land Order, Withdrawal of Public and National Forest System Lands in the Grand Canyon Watershed) (Jan., 0) (AR ). Dated: February 0, 0 Respectfully Submitted, ROBERT G. DREHER, Acting Assistant Attorney General Environment and Natural Resources Division /s/ John S. Most JOHN S. MOST, Trial Attorney Virginia Bar, No. DOMINIKA TARCZYNSKA, Trial Attorney New York Bar, No. Natural Resources Section P.O. Box Washington, D.C. 00- (0) 0-0(Tarczynska) 0-- (Most) (fax) DOMINIKA.TARCZYNSKA@USDOJ.GOV JOHN.MOST@USDOJ.GOV Counsel for Federal Defendants under its jurisdiction. AR 0.

13 Case :-cv-0-dgc Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that I am today causing the foregoing to be served upon counsel of record through the Court s electronic service system (ECF/CM) and am mailing a copy of same to pro se plaintiff Gregory Yount. Dated: February 0, 0 /s/ John S. Most Counsel for Federal Defendants 0

Background. North Cascades Ecosystem Grizzly Bear Restoration Plan/ Environmental Impact Statement. Steve Rochetta

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