Biden Protects Land by Grand Canyon but Will Still Allow Mining

President Joe Biden on Tuesday plans to block expanded uranium mining around the Grand Canyon by declaring the area a new national monument.

The Baaj Nwaavjo I’tah Kukveni—Ancestral Footprints of the Grand Canyon National Monument will be a preserve about three times the size of Los Angeles in northern Arizona that will protect sites sacred to area tribes.

The more than 900,000-acre monument, created using the Antiquities Act, surrounds Grand Canyon National Park and is the fifth national monument Biden has created since he took office. It will also make permanent a 20-year ban on uranium mining in the area that the Obama administration imposed in 2012.

The monument will help the US atone for forcibly removing tribes from parts of the Grand Canyon when Congress declared it a national park more than a century ago, a senior White House official said, speaking to reporters Monday on condition of anonymity.

The monument will help address past injustices and protect lands that many tribes refer to as their ancestral home, the official said. The land around the Grand Canyon shouldn’t be open to new mining claims, the official said.

Mining companies are interested in the area to help boost a domestic uranium industry they see as key to bolstering emissions-free nuclear energy. Environmental and tribal groups worry uranium mining will contaminate water flowing through tribal land and harm the Grand Canyon.

But the monument isn’t expected to block Energy Fuels Inc. from mining for uranium at its existing Pinyon Plain Mine, which will be within the monument about 13 miles south of the Grand Canyon.

Some Mining Continues

The company’s rights to uranium and high-grade copper deposits at Pinyon Plain have been affirmed by federal courts, Energy Fuels Vice President Curtis Moore said.

Even with the monument designation, the company is preparing for production to begin sometime within the next two years, he said.

The company has other uranium prospects in the area, and if the monument threatens any valid existing rights to those minerals, “we’d probably have to pursue a takings challenge,” Moore said.

“It just doesn’t seem like great policy to be locking up our best uranium deposits,” Moore said, calling them “carbon killers” because they provide fuel for nuclear power plants.

All valid existing rights to minerals within the monument, including uranium, will be preserved, White House officials said. The monument affects only future mining claims.

Dianna Sue Uqualla, a member of the Havasupai Tribal Council, opposes uranium development near the Grand Canyon.

Photographer: Bobby Magill/Bloomberg Law

Tribal Pleas for Protection

The monument includes Bureau of Land Management and US Forest Service land on the north and south sides of the national park and is adjacent to one earlier national monument, the 1 million-acre Grand Canyon-Parashant National Monument, created by President Bill Clinton in 2000.

Tribes in the region say creating the new monument to protect the land and water around the Grand Canyon is important because tribes were forced out of canyon, and uranium mining could taint the water flowing into the gorge, where the waters are considered sacred.

“That’s our aboriginal homelands,” Dianna Sue Uqualla, a Havasupai tribal council member, said in an interview during a July Bureau of Land Management public meeting on the monument proposal in Flagstaff, Ariz.

The monument will “keep at bay these mining people that are coming in,” and will protect the Grand Canyon from companies that are “desecrating, raping the Mother Earth.”

Uranium mining around the Grand Canyon would poison Native land and waters, and the monument will help protect them, Hopi Tribal Chair Tim Nuvangyaoma, said at the meeting in Flagstaff.

“For Hopi, there’s an intimate connection we have with this—it’s our place of emergence,” he said, referring to the Grand Canyon. “Throughout history, Native lands have been poisoned—mining, scarring. Those scars don’t heal. We have to bring some protections here.”

Inflaming Opposition

The new monument is expected to inflame long-standing tensions over the White House’s ability to create large national monuments, which the state of Utah and several counties are challenging in federal court.

Northern Arizona ranchers and some elected officials speaking at the Flagstaff public meeting said the monument will harm their natural resources-based economies, and restrict both public and private land uses.

“If we could mine the uranium that exists there, it would mean millions to the local economy,” Mohave County, Ariz., Commissioner Jean Bishop told Bloomberg Law at the July meeting. The monument is “an economic development problem for us.”

Private landowners within and around the monument could see restrictions on how they can use their property, and Biden’s use of the Antiquities Act is likely to interest the Supreme Court in taking up a challenge to the Antiquities Act, said William Myers, partner at Holland & Hart LLP in Boise, Idaho.

White House officials said existing uses of the land, including grazing and ranching, will continue as they are today. No private land will be affected by the monument, they said.

Litigation Aimed at High Court

The Antiquities Act is one of the primary tools presidents use to protect cultural sites and wildlife habitats on federal land from oil and gas drilling, mining, and other development. President Joe Biden used the act in March to create the 506,000-acre Avi Kwa Ame National Monument in southern Nevada.

But Chief Justice John Roberts wrote in a 2021 dissent to a denial of certiorari in Massachusetts Lobstermen’s Association v. Raimondo that the act’s use has been “transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain.” He said the court may have an opportunity to consider the issue in the future.

The state of Utah and several counties aimed their 2022 lawsuit against Bears Ears and Grand Staircase-Escalante national monuments, which together span more than 3 million acres across southern Utah, directly at Roberts.

“As more large monuments are proclaimed, they heighten the stakes in a way that could interest the Supreme Court,” Myers said.

But John Leshy, an Interior Department solicitor in the Clinton administration, said he thinks the monument is legally secure.

Though the monument isn’t immune from future attack, Biden’s creation of the monument is supported by a long history of both courts and Congress bolstering the use of the Antiquities Act to protect public land, he said.

Grand Canyon National Park itself was initially protected as a national monument under the Antiquities Act—a move that was upheld unanimously by the Supreme Court in 1920, Leshy said.