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DinÉ Citizens Against Ruining our Environment v. United States Office of Surface Mining Reclamation & Enforcement

United States District Court, D. Colorado

March 2, 2015

DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT, SAN JUAN CITIZENS ALLIANCE, SIERRA CLUB, CENTER FOR BIOLOGICAL DIVERSITY, and AMIGOS BRAVOS, Petitioners,
v.
UNITED STATES OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, an agency within the U.S. Department of the Interior; SALLY JEWELL, in her official capacity as Secretary of the Interior; AL KLEIN, in his official capacity as Regional Director of the U.S. Offices of Surface Mining Reclamation and Enforcement, Western Region; BOB POSTLE, in his official capacity as Manager of the Program Support Division for the Western Region of the Office of Surface Mining Reclamation and Enforcement; RICK WILLIAMSON, in his official capacity as Manager of the Indian Programs Branch of the Western Region of the Office of Surface Mining Reclamation and Enforcement; and MYCHAL YELLOWMAN, in his official capacity as Navajo Mine Team Leader in the Office of Surface Mining Reclamation and Enforcement; Respondents, and THE NAVAJO TRANSITIONAL ENERGY COMPANY, LLC, Intervenor-Respondent

For Dine Citizens Against Ruining Our Environment, San Juan Citizens Alliance, Sierra Club, Center for Biological Diversity, Amigos Bravos, Plaintiffs: Erik Schlenker-Goodrich, Kyle James Tisdel, Taos, NM; Shiloh Silvan Hernandez, Helena, MT.

For Office of Surface Mining Reclamation and Enforcement, an agency within the U.S. Department of the Interior, Kenneth L. Salazar, in his official capacity as Secretary of the Interior, Al Klein, in his official capacity as Regional Director of the U.S. Office of Surface Mining Reclamation and Enforcement, Western Region, Bob Postle, in his official capacity as Manager of the Program Support Division for the Western Region of the Office of Surface Mining Reclamation and Enforcement, Rick Williamson, in his official capacity as Manager of the Indian Programs Branch of the Western Region of the Office of Surface Mining Reclamation and Enforcement, Mychal Yellowman, in his official capacity as Navajo Mine Team Leader in the Office of Surface Mining Reclamation and Enforcement, Defendants: Peter James McVeigh, U.S. Department of Justice-DC-ENRD-#7415, Washington, DC.

For Navajo Nation, The, Intervenor Defendant: Paul Wesley Spruhan, LEAD ATTORNEY, Navajo Nation Department of Justice, Window Rock, AZ.

For The Navajo Transitional Energy Company, LLC, Intervenor Defendant: Paul E. Frye, LEAD ATTORNEY, William Gregory Kelly, Frye Law Firm, P.C., Albuquerque, NM.

MEMORANDUM OPINION AND ORDER

John L. Kane, Senior United States District Judge.

Despite hundreds of pages of briefing and a voluminous administrative record, this case presents a relatively straightforward question: must the Office of Surface Mining Reclamation and Enforcement (" OSM" ) consider the environmental impacts related to the combustion, at the Four Corners Power Plant, of coal that will be mined as a result of OSM's approval of the Navajo Transitional Energy Company's (" NTEC" ) Permit Revision Application? Because I answer this question in the affirmative, and because I find that OSM failed to adequately consider those same impacts in its Environmental Assessment (" EA" ) for NTEC's Permit Revision Application, the Petition for Review of Agency Action (Doc. 1) is GRANTED. The balance of this opinion discusses the factual and legal basis for this conclusion.

BACKGROUND

The Navajo Mine, which extracts coal from the Fruitland Formation, exists for the sole purpose of supplying coal to the nearby Four Corners Power Plant.[1] See AR 1-2-11-19; 1-2-11-20. In 1960, the original operator of the mine, BHP Navajo Coal Company (" BHP" ),[2] negotiated a contract with Arizona Public Service to provide coal to the Four Corners Power Plant, which is located adjacent to the northern end of the mine. AR 8-1-1-2264. Coal has been produced from the Navajo Mine since 1963, solely for use at the Four Corners Power Plant. AR 8-1-1-2264; AR 2-1-1-2542.

Operations at the mine are governed by a life-of-mine permit issued by OSM. AR 2-1-1-922. Although the initial permit was limited to a term of five years, 30 U.S.C. § 1256(b), NTEC can apply for successive five-year renewals, with respect to areas within the boundaries of its existing permit, as a matter of right. Id. § 1256(d)(1). Such " matter of right" renewals are not, however, allowed when NTEC seeks to extend its mining operations " beyond the boundaries authorized in the existing permit." Id. § 1256(d)(2). When NTEC seeks to expand its mining operations, it must submit a permit revision application, which is " subject to the full standards applicable to new applications under [the Surface Mining Control and Reclamation Act]." Id.; see also AR 1-2-11-22. OSM's compliance, vel non, with NEPA in regard to its approval of NTEC's recent Permit Revision Application, which presents the latest chapter in the ongoing attempt to expand operations at the Navajo Mine, forms the basis of the instant controversy.

PROCEDURAL HISTORY

BHP first sought to expand mining operations into a 3,800 acre area of the Navajo Mine known as " Area IV North" in 2005. OSM completed an EA for the Permit Revision Application, determined that the expansion of operations proposed therein would have no significant impact on the quality of the human environment, and approved the Permit Revision Application on October 7, 2005.

Soon after, two of the Petitioners in the instant action, DinÉ Citizens Against Ruining our Environment (" DCARE" ) and San Juan Citizens Alliance, filed suit challenging OSM's approval of BHP's proposed expansion of operations into Area IV North. In October 2010, I reviewed and rejected OSM's approval of the Permit Revision Application, remanding the application to OSM for further proceedings. See DinÉ Citizens Against Ruining Our Environment v. Klein, 747 F.Supp.2d 1234 (D. Colo. 2010).

Following my 2010 remand, BHP submitted a revised Permit Revision Application to OSM, seeking permission for a more modest expansion of its operations into Area IV North. AR 1-01-01-01. OSM developed a draft EA reviewing the potential environmental impacts of the expansion of operations proposed in the Permit Revision Application; it solicited extensive public input on that draft EA; and it issued a final EA determining that the revised proposed expansion would have no significant impact on the human environment. AR 1-02-10-01 to 06. Based in part on that determination, OSM approved the 2011 Permit Revision Application with conditions. AR 1-02-10-01.

Shortly thereafter, DCARE, San Juan Citizens Alliance, Sierra Club, Center for Biological Diversity, and Amigos Bravos (collectively " Petitioners" ) filed the instant suit alleging that OSM's EA failed to comply with the National Environmental Policy Act (" NEPA" ) and its implementing regulations. Specifically, Petitioners argue that OSM should have considered the environmental impacts related to the combustion of coal that will be mined as a result of OSM's approval of NTEC's Permit Revision Application and the environmental impacts of the disposal of the resultant coal combustion waste (collectively " combustion-related impacts" ).

On January 10, 2014, the parties completed their briefing on Petitioners' claims, and on February 18, 2015, they presented oral arguments. This matter is now ready for disposition.

JURISDICTION AND VENUE

Because Petitioners' claims are based on NEPA, I have jurisdiction pursuant to 28 U.S.C. § 1331. Venue in this court is proper, because a substantial part of the events giving rise to Petitioners' claims occurred in OSM's Western Region offices located in Denver, Colorado. 28 U.S.C. § 1391(e).

JUSTICIABILITY

Standing

Respondents do not contest Petitioners' standing to challenge their approval of NTEC's Permit Revision Application; [3] nonetheless, I must still consider the issue of standing sua sponte to ensure that I have subject-matter jurisdiction. See S. Utah Wilderness All. v. Office of Surface Mining Reclamation and Enforcement, 620 F.3d 1227, 1233 (10th Cir. 2010). To establish that they have standing to challenge OSM's approval of NTEC's Permit Revision Application, Petitioners must show that: (1) they suffered or imminently will suffer an injury; (2) that injury is fairly traceable to the challenged conduct of Respondents; and (3) a favorable federal court decision is likely to redress the injury.[4] See, e.g., Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Furthermore, because Petitioners are organizations, they must demonstrate that " (a) [their] members would otherwise have standing to sue in their own right; (b) the interests [they] seek[] to protect are germane to [their organizational] purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 n.3 (10th Cir. 1996). Because the second and third prongs of the organizational standing inquiry are readily established in this case,[5] the balance of my standing inquiry focuses on whether Petitioners' members would have standing to challenge OSM's approval of NTEC's Permit Revision Application in their own right.

1. Injury in Fact

Petitioners assert that OSM has failed to comply with its obligation to fully consider the potential environmental impacts that would result from OSM's approval of NTEC's Permit Revision Application. A violation of NEPA's procedural requirements constitutes harm for purposes of Article III standing. See, e.g., Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir. 2002). Furthermore, DCARE, San Juan Citizens Alliance, Sierra Club, Center for Biological Diversity, and Amigos Bravos assert that their members live, work, raise families, recreate, conduct scientific research, and follow their religious faith in the area impacted by the challenged action, and they " will continue to do so in the future and on an ongoing basis." Petition for Review (Doc. 1) at ¶ 25. See also Declaration of Dailan Jake Long (Doc. 48-1); Declaration of Lucy A. Willie (Doc. 48-2); Declaration of Taylor McKinnon (Doc. 48-3); Declaration of Mike Eisenfeld (Doc. 48-4); Declaration of Sarah Jane White (Doc. 48-5); and Declaration of Shirley McNall (Doc. 48-6). These allegations and supporting declarations sufficiently demonstrate the concrete harm caused to Petitioners' members by OSM's alleged violations of NEPA, as well as the likelihood of future injury to Petitioners' members resulting from those alleged violations.[6]See Summers v. Earth Island Inst., 555 U.S. 488, ...


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