## Facts

- The Secretary of the Interior issued a 2012 Record of Decision withdrawing about one million acres of federal land near Grand Canyon National Park from location and entry under the Mining Law of 1872 for up to 20 years.
- The withdrawal was based on concerns that expanded uranium mining could harm groundwater and other environmental and cultural resources.
- The decision relied on a Final Environmental Impact Statement and agency scientific materials that acknowledged uncertainty but found additional mining posed a “small but significant risk” of contamination and that withdrawal would reduce that risk.
- The withdrawal was made under § 204 of the Federal Land Policy and Management Act (FLPMA), which authorizes the Secretary to make temporary large-tract withdrawals, while Congress retains authority over permanent large-tract withdrawals.
- FLPMA § 204(c)(1) contained a legislative veto allowing Congress, by concurrent resolution, to terminate a large-tract withdrawal; such veto mechanisms are unconstitutional after *INS v. Chadha*.
- Mining associations, local governments, and individuals sued to invalidate the withdrawal, asserting (among other claims) lack of statutory authority due to the unconstitutional veto, NEPA and NFMA violations, and an Establishment Clause violation tied to tribal religious interests.
- The district court held the legislative veto unconstitutional but severable, and rejected the NEPA, NFMA, and Establishment Clause challenges; plaintiffs appealed.

## Issues

1. Whether FLPMA § 204(c)(1)’s unconstitutional legislative veto is severable from the Secretary’s delegated authority to make large-tract withdrawals.
2. Whether the EIS and withdrawal decision were arbitrary or capricious under NEPA due to alleged overstatement of risks, inadequate treatment of existing regulatory controls as mitigation, or improper handling of scientific uncertainty.
3. Whether the withdrawal violated the Establishment Clause by impermissibly advancing tribal religion.
4. Whether the withdrawal and related agency actions violated NFMA or other statutory requirements.

## Decision

- The Ninth Circuit affirmed the district court and upheld the withdrawal.
- The court held the legislative veto in FLPMA § 204(c)(1) unconstitutional but severable; the Secretary’s large-tract withdrawal authority remained valid.
- The court held the NEPA challenges failed because the EIS took a hard look at impacts, considered existing regulatory regimes, and reasonably addressed uncertainty and risk.
- The court rejected the Establishment Clause claim under the *Lemon* test, concluding the withdrawal served secular purposes and did not have a primary effect of advancing religion.
- The court rejected the remaining statutory challenges, including NFMA-based claims.

## Legal Principles

- An unconstitutional legislative veto provision may be severed if the remaining statutory scheme can operate independently and Congress would not have preferred invalidating the entire enactment.
- Under NEPA and APA review, an agency must take a “hard look” at environmental consequences; courts defer to reasonable risk assessments and policy judgments when the record shows reasoned consideration of uncertainty and relevant factors.
- Agencies may consider existing regulatory regimes as potential mitigation and may reasonably conclude they are inadequate to meet the action’s stated purposes.
- Government action that incidentally benefits religious practice does not violate the Establishment Clause if it has a secular purpose, a primary effect that neither advances nor inhibits religion, and avoids excessive entanglement (*Lemon* framework).

## Conclusion

The Ninth Circuit held that FLPMA’s unconstitutional legislative veto does not invalidate the Secretary’s temporary large-tract withdrawal authority, and it upheld the Grand Canyon-area mining withdrawal because the agencies’ environmental review and decision-making satisfied NEPA and the action did not violate the Establishment Clause or NFMA.


Nat'l Mining Ass'n v. Zinke, 877 F.3d 845 (9th Cir. 2017)