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WildEarth Guardians v. United States office of Surface Mining, Reclamation & Enforcement

United States District Court, D. Colorado

May 8, 2015

WILDEARTH GUARDIANS, Plaintiff,
v.
UNITED STATES OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT, AL KLEIN, in his official capacity as Western Regional Director of the Office of Surface Mining, Reclamation and Enforcement, Denver, Colorado, and S.M.R. JEWELL, in her official capacity as U.S. Secretary of the Interior, Federal Defendants, COLOWYO COAL CO. L.P. and TRAPPER MINING, INC., Defendant-Intervenors

For WildEarth Guardians, Plaintiff: James Jay Tutchton, LEAD ATTORNEY, WildEarth Guardians-Denver, Denver, CO; Ashley Dye Wilmes, WildEarth Guardians-Louisville, Louisville, CO; Samantha M. Ruscavage-Barz, WildEarth Guardians-Santa Fe, Santa Fe, NM.

For U.S. Office of Surface Mining Reclamation and Enforcement, Al Klein, in his official capacity as Western Regional Director of the Office of Surface Mining Reclamation and Enforcement, Denver, Colorado, S.M.R. Jewell, in her official capacity as U.S. Secretary of the Interior, Defendants: John S. Most, U.S. Department of Justice-DC-7611, Washington, DC.

For Colowyo Coal Company, L.P., Intervenor Defendant: Stephen D. Bell, Dorsey & Whitney, LLP-Denver, Denver, CO.

For Trapper Mining Inc., Intervenor Defendant: Kristina R. Van Bockern, Paul Martin Seby, Holland & Hart, LLP-Denver, Denver, CO.

ORDER

R. Brooke Jackson, United States District Judge.

This case concerns whether the United States Office of Surface Mining, Reclamation, and Enforcement (" OSM" ), the Western Regional Director of OSM, and the Secretary of the Interior complied with the National Environmental Policy Act (" NEPA" ) when they approved two mining plan modifications. The plaintiff contends that the defendants failed to comply with either of NEPA's primary requirements -- they neither involved the public nor took a hard look at the environmental impacts of the proposed modifications. Based on a review of the briefs and relevant filings as well as the positions taken during oral argument, the Court agrees. However, for reasons explained later, the Court does not agree with all of the aspects of the remedy advocated by the plaintiff.

I. BACKGROUND

A. The Parties

The plaintiff, WildEarth Guardians (hereinafter " Guardians" ), is a non-profit membership organization with over 43,000 members. Guardians and its members are " dedicated to protecting and restoring the wildlife, wild places, and wild rivers of the American West." Amended Petition for Review of Agency Action [ECF No. 35] ¶ 8. In furtherance of these goals, they " work to replace fossil fuels with clean, renewable energy in order to safeguard public health, the environment, and the Earth's climate." Id. Guardians alleges that some of its members live, work, recreate, and conduct other activities on lands affected by the mining plan approvals at issue in this case. Id. ¶ 9. These individuals " have a substantial interest in ensuring they breathe the cleanest air possible," as well as keeping " intact ecosystems free from permanent contamination of riverine habitats that destroy fish populations." Id. Guardians claims that its members are " harmed by the aesthetic and environmental impacts of coal mining" at the two locations at issue in this case. Id.

The Secretary of the United States Department of the Interior is the ultimate decisionmaker with respect to mining plans. OSM, a bureau within the Department, has the initial responsibility for evaluating the environmental impacts of proposed mining plans or revisions of such plans and for making recommendations to the Secretary. Al Klein and S.M.R. Jewell are being sued in their official capacities as the Western Regional Director of OSM and the Secretary of the Interior, respectively. Although OSM and the Secretary perform unique functions -- the former recommends an action while the latter decides which action to take -- both are responsible for ensuring compliance with NEPA. The two intervenor-defendants, Colowyo Coal Company, LP and Trapper Mining, Inc., are the companies that petitioned for and received the mining plan modifications at issue in this case.

As noted earlier, Guardians challenges the approval of both mining plan modifications on the basis that OSM failed to comply with NEPA's public notice and hard look requirements. Before discussing the substance of these arguments, I briefly summarize the laws applicable to this case, then address various procedural issues raised by the defendants and intervenors, and finally turn to the merits of the NEPA claims.

B. Relevant Laws

NEPA is a procedural statute designed to ensure public participation and transparent decisionmaking by federal agencies. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Federal agencies must gather public input about a proposed action so that its consequences may be studied before it is undertaken. See, e.g., 42 U.S.C. § 4321; 40 C.F.R. § 1501.1; Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). " By focusing both agency and public attention on the environmental effects of proposed actions, NEPA facilitates informed decisionmaking by agencies and allows the political process to check those decisions." New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 703 (10th Cir. 2009). These procedural requirements are not mere formalities. As expressed by the Tenth Circuit, " NEPA places upon federal agencies the obligation to consider every significant aspect of the environmental impact of a proposed action. It also ensures that an agency will inform the public that it has considered environmental concerns in its decision-making process." Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1177-78 (10th Cir. 2008) (internal quotation and citations omitted).

The Mineral Leasing Act governs the leasing of public lands for developing deposits of federally owned coal, petroleum, natural gas, and other minerals. The Act provides that " [p]rior to taking any action on a leasehold which might cause a significant disturbance of the environment, the lessee shall submit for the Secretary's approval an operation and reclamation plan. The Secretary shall approve or disapprove the plan or require that it be modified." 30 U.S.C. § 207(c).

OSM is tasked with implementing and enforcing the Surface Mining Control and Reclamation Act of 1977 (" SMCRA" ). It is " a comprehensive statute designed to 'establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.'" See Hodel v. Virginia Surface Min. & Reclamation Ass'n, Inc., 452 U.S. 264, 268, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (quoting 30 U.S.C. § 1202(a)). Under SMCRA, a state may enter into a cooperative agreement with the Secretary to provide for its own regulation of surface coal mining and reclamation operations on federal lands within the state. See 30 U.S.C. § 1273(c). However, the Secretary may not delegate to the state her responsibility to approve mining plans. See id. ; 30 C.F.R. § 745.13(i). The Secretary likewise cannot delegate her duty to comply with NEPA. See 30 C.F.R. § 745.13(b). Pursuant to such a cooperative agreement, Colorado has had primary jurisdiction over the regulation of surface coal mining within its borders since 1980, exercising its authority through the Colorado Division of Reclamation, Mining and Safety (" CDRMS" ). See 30 C.F.R. § 906.10. The Secretary of the Interior, however, maintains ongoing authority to oversee Colorado's implementation of its regulatory program. See, e.g., 30 U.S.C. § 1271(b).

OSM makes recommendations to the Secretary of the Interior as to whether mining plans should be approved, disapproved, or conditionally approved contingent upon modifications. 30 C.F.R. § 746.13. At a minimum, a mining plan must be compliant with the applicable requirements of federal laws, regulations, and executive orders, with the information contained therein prepared in compliance with NEPA. Id. The Secretary heavily relies on OSM in ensuring she is adequately informed before approving a mining plan. However, her independent judgment is still required, and no surface mining or reclamation operations may begin without her approval. See 30 C.F.R. § 746.11(a); S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1243 (10th Cir. 2010).

" An approved mining plan shall remain in effect until modified, cancelled or withdrawn and shall be binding on any person conducting mining under the approved mining plan." 30 C.F.R. § 746.17(b). If a lessee seeks to extend coal mining and reclamation operations onto previously unmined federal lands, a mining plan modification is required. 30 C.F.R. § 746.18(d). The portion of the modified plan addressing new land areas is subject to the full standards applicable to new applications for mining leases under SMCRA. 30 U.S.C. § 1256(d)(2).

C. The Agency Decisions

There are two mines whose mining plan modifications are at issue in this case: the Colowyo Mine and the Trapper Mine.[1]

Colowyo

The Colowyo Mine, which is located approximately twenty-eight miles south of Craig, Colorado, has been in operation since 1977. It obtained its first state mining permit from the state agency, CDRMS, in 1982. The Secretary of the Interior approved the Colowyo Mine's first mining plan for federal coal in 1983. Since this time, the Secretary has approved three mining plan modifications, not including the one presently at issue.

At issue here, on July 3, 2006, Colowyo submitted a permit application package to CDRMS seeking a permit revision to federal coal leases C-0123476, C-29225, and C-29226. The permit revisions increased the approved mining area by 6,050 acres, adding 5,219 acres of federal coal for recovery. The revisions did not extend the life of the mine.[2]

During the state permitting process, Colowyo published notice of its permit application package in two local newspapers, the Craig Daily Press and the Herald Times, for four consecutive weeks ending on August 18, 2006. COLOWYO 5. CDRMS then published notice of its proposed decision to approve the permit revision on May 4, 2007, which began a thirty-day public comment period. No requests were received for a public hearing, and CDRMS approved the permit revision on June 8, 2007. COLOWYO 8.

Meanwhile, Colowyo notified OSM of its permit revision application. In reviewing the application, OSM concluded that a mining plan modification was needed because of the change in location and amount of federal coal to be mined. OSM prepared an Environmental Assessment (" EA" ) entitled Supplemental Environmental Assessment for Colowyo Mine Federal Coal Leases C-0123476, C-29225, and C-29226 (" Colowyo EA" ). The Colowyo EA referenced older NEPA and non-NEPA documents and concluded that the modification would not result in significant environmental impacts. Accordingly, OSM issued a Finding of No Significant Impact (" FONSI" ) on May 8, 2007. COLOWYO 12. OSM recommended that the mining plan modification be approved, and on June 15, 2007 the Assistant Secretary of the Interior (acting on behalf of the Secretary) adopted the recommendation. COLOWYO 7. Thus, the modification under review in this case was approved nearly six years before the present case was filed and approximately eight years before the present date.

Trapper

The Trapper Mine, which is located approximately six miles south of Craig, Colorado, has been in operation since 1976. It obtained its first state mining permit from CDRMS in 1982 and received the Secretary's approval of its first mining plan for federal coal in 1983. Since this time, the Secretary has approved one mining plan modification, not including the one presently at issue.

On November 5, 2007, Trapper submitted a permit application package to CDRMS seeking a permit revision to federal coal leases C-07519 and C-079641. The permit revisions anticipated recovery of approximately 8.1 million tons of federal coal, disturbing 312 acres of land previously affected by a landslide. The revisions did not increase the life of the mine.

During the state permitting process, Trapper first published notice of its permit application package and the opportunity to comment in the Craig Daily Press on February 19, 2009. TRAPPER 15; [ECF No. 58 at 10 n.3].[3] Additional notices were published in the same newspaper four times in July 2009. Id. CDRMS then published notice of its proposed approval on or around September 24, 2009. See TRAPPER 13, 15. On October 23, 2009, after no comments or requests for a public hearing were received, CDRMS approved the permit revision. See id.

At the same time, Trapper notified OSM of its permit revision application. As with the Colowyo Mine, OSM concluded that the Trapper permit revisions necessitated a mining plan modification because of the change in location and amount of federal coal to be mined. OSM prepared an EA entitled Supplemental Environmental Assessment for the Trapper Mine Federal Coal Leases C-07519 and C-079641 (" Trapper EA" ). The Trapper EA, like the Colowyo EA, referenced older NEPA and non-NEPA documents to conclude that the modification would not result in significant environmental impacts. On October 26, 2009, OSM issued a FONSI and recommended that the modified mining plan be approved. On November 27, 2009, the Assistant Secretary of the Interior (acting on behalf of the Secretary) approved the mining plan. This approval occurred just over three years before the filing of the present suit and about five and a half years before today.

OSM gave no public notice and sought no public input while drafting the Colowyo and Trapper EAs. After completing them, OSM placed both EAs and their related FONSIs in its public reading room located in Denver, Colorado without providing notice that it had done so.

D. Guardians' Challenges

Guardians challenges the approval of these mining plan modifications on two grounds. First, it contends that OSM violated NEPA by failing to seek public involvement during the review process and by failing to publish notice of the resulting EAs and FONSIs. Second, it argues that OSM failed to take a " hard look" at the environmental impacts of the proposed ...


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