Citizens v. Ruining Our Env't

• Decision Date: 28 October 2010
• Docket Number: Civil Action No. 07–cv–1475–JLK.
• Citation: 747 F.Supp.2d 1234
• Parties: DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT, San Juan Citizens Alliance, Plaintiffs,v.Al KLEIN, in his official capacity as Western Regional Director, Office of Surface Mining Reclamation and Enforcement, Denver, Colorado, Office of Surface Mining Reclamation And Enforcement, a federal agency within the U.S. Department of Interior, Defendants,Arizona Public Service and BHP Navajo Coal Company, Intervenors.
• Court: U.S. District Court — District of Colorado

747 F.Supp.2d 1234

DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT, San Juan Citizens Alliance, Plaintiffs,

v.Al KLEIN, in his official capacity as Western Regional Director, Office of Surface Mining Reclamation and Enforcement, Denver, Colorado, Office of Surface Mining Reclamation And Enforcement, a federal agency within the U.S. Department of Interior, Defendants,Arizona Public Service and BHP Navajo Coal Company, Intervenors.

Civil Action No. 07–cv–1475–JLK.

United States District Court, D. Colorado.

Oct. 28, 2010.

Brad A. Bartlett, Travis Earl Stills, Durango, CO, for Plaintiffs.Terry Fox, Denver, CO, for Defendants.Brian H. Potts, Douglas B. Clark, Foley & Lardner, LLP, Madison, WI, Paul Bargren, Thomas L. Shriner, Jr., Foley & Lardner, LLP, Milwaukee, WI, Jonathan William Rauchway, Scot W. Anderson, Davis Graham & Stubbs, LLP, Denver, CO, William C. Scott, Walter E. Stern, III, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Intervenors.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

The Navajo Nation comprises over 27,000 square miles in the four corners region of the southwestern United States. Born of a history of strife and conflict between American settlers and members of the Navajo Tribe,¹ the reservation is located within the ancestral homeland of the Navajo (or Diné, the Navajo word for “people”)—the area bounded by Blanca Peak to the northeast, Mount Taylor to the southeast, the San Francisco Peaks to the southwest, and Hesperus Mountain to the northwest.

Throughout the early history of the reservation, the Tribe relied upon traditional endeavors such as sheep and cattle herding, fiber production, weaving, jewelry making, and art trading for income and employment. Over the past century, however, large deposits of natural resources (including oil, uranium, and coal) have been discovered on the Tribe's reservation lands. These discoveries have supplemented the Tribe's income, but they have been, by any fair assessment, a mixed-blessing to the Diné.²

Pursuant to the Indian Mineral Leasing Act of 1938, 52 Stat. 347, 25 U.S.C. § 396a et seq., the Navajo Nation negotiates leases allowing third-parties to extract discovered resources in exchange for a set royalty percentage. ³ In July 1957, the Navajo Nation granted such a lease to the Utah Construction and Mining Company (succeeded in interest by BHP Navajo Coal Company) for the extraction of coal from the Fruitland Formation. Covering 33,601 acres, the lease area is wholly located within the confines of the Navajo Nation in northwest New Mexico, extending 25 miles to the south from its northern terminus near the San Juan River and Fruitland, New Mexico. In 1960, BHP Navajo 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 lease area. Coal has been produced from the Navajo Mine since 1963, solely for use at the Four Corners Power Plant.

Because the original lease pre-dated the National Environmental Policy Act (“NEPA”), the Navajo Mine evaded meaningful environmental review for much of its early existence. Although indirectly analyzed in other Environmental Impact Statements,⁴ it was not specifically reviewed until BHP applied for a permit to continue surface coal mining operations at the Navajo Mine in 1985.⁵ In connection with its review of BHP's permit application, the Office of Surface Mining (“OSM”) conducted an Environmental Assessment (“1989 EA”) which resulted in a finding that BHP's proposal to mine 4,816 acres over a fifteen year period and extract 120 million tons of coal would have no significant impact on the quality of the human environment.⁶

The permit was limited to a term of five years under the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1256(b), but BHP could, as a matter of right subject to certain limitations, apply for successive five-year renewals with respect to areas within the boundaries of its existing permit. Id. § 1256(d)(1). SMCRA does not, however, allow for such “matter of right” renewals when BHP seeks “to extend the mining operation beyond the boundaries authorized in the existing permit.” Id. § 1256(d)(2). In such cases, “the portion of the application for renewal of a valid permit which addresses any new land areas shall be subject to the full standards applicable to new applications under [SMCRA].” Id. Thus, BHP must submit permit revision applications when it seeks to expand its mining operations.

OSM's review and approval (or disapproval) of these renewal and revision applications constitute “major federal action” subject to NEPA's procedural requirements.⁷ OSM's compliance with NEPA in regard to BHP's recent permit renewal and revision applications forms the basis of the instant controversy.⁸ On May 19, 2004, BHP submitted an application for a five-year renewal for its Navajo Mine permit. Relying upon its own guidelines, OSM's Western Regional office in Denver determined that its decision to approve the renewal application was categorically excluded from NEPA's procedural requirements and approved BHP's application. Permit Renewal Decision Document, AR 04–04.

Later that year, BHP submitted another permit application to OSM for a proposed expansion of its mining operations into a 3,800 acre area known as “Area IV North.” The application included a request to relocate the Burnham Road to facilitate mining activities in this area.⁹ OSM conducted an Environmental Assessment, determined that approval of BHP's 2005 Permit Revision Application would have no significant impact on the quality of the human environment, and approved the permit application on October 7, 2005. In the accompanying decision document, OSM imposed two conditions relevant to the instant dispute.¹⁰ First, BHP was required to conduct a thorough ethnographic study of Area IV North and develop, approve, and implement mitigation/data recovery plans for the area before causing any disturbance there (“ethnographic studies”). The second permit condition required BHP to follow OSM's regulatory procedures for relocating a public road before realigning the existing Burnham Road.

Plaintiffs allege Defendants violated NEPA and the Administrative Procedure Act (“APA”) by issuing the 2004 Permit Renewal and 2005 Permit Revision without complying with certain NEPA procedural requirements or satisfying NEPA's public notice and participation requirements. In their First Amended Complaint, Plaintiffs added two claims alleging Defendants violated both NEPA and the APA by failing to supplement or otherwise include the Area IV North ethnographic studies, the Burnham Road relocation proposal, or the CHIA in their analysis of BHP's 2005 Permit Revision Application.¹¹

Plaintiffs seek declaratory judgment that Defendants violated NEPA and the APA in issuing the 2004 Permit Renewal and the 2005 Permit Revision, in failing to supplement the NEPA analyses relating to the 2005 Permit Revision decision, and by engaging in a continuing pattern and practice of violating NEPA's public notice requirements in taking federal action regarding the Navajo Mine. Plaintiffs also seek to enjoin implementation of the 2005 Permit Revision regarding mining in Area IV North until such time as OSM has complied with NEPA. With respect to the 2004 permit renewal, Plaintiffs seek to enjoin any action that authorizes disposal of coal combustion waste (“CCW”) ¹² in the mine permit area, the relocation of Navajo Nation tribal members, or blasting operations near tribal member residences until compliance with NEPA is achieved.

Plaintiffs further request an order requiring Defendants to provide specified public notice and participation under NEPA for permitting actions regarding the Navajo Mine, including advance public notice of proposed agency actions and publication of such notices in tribal and non-tribal periodicals in both English and the Navajo language. Finally, Plaintiffs request that Defendants be ordered to develop an EIS for the Navajo Mine in its entirety, including the Area IV North expansion.

On March 1, 2010, the parties completed their briefing on the remaining claims, and on August 25, 2010, they presented oral arguments. This matter is now ready for my review.

II. Jurisdiction and Venue

Plaintiffs' NEPA claims are properly asserted under the Administrative Procedure Act, 5 U.S.C. § 500 et seq. See, e.g., Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 740 (10th Cir.2006). Although the APA does not provide an independent grant of jurisdiction to review agency action, federal question jurisdiction extends to APA claims unless Congress has specifically precluded judicial review of the particular agency action that is the subject of the claim. Califano v. Sanders, 430 U.S. 99, 105, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); 5 U.S.C. § 701(a); see also Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1120 (10th Cir.2009). Because Congress has not expressly precluded review of the OSM decisions at issue here, I have jurisdiction over Plaintiffs' claim pursuant to 28 U.S.C. § 1331.¹³

Furthermore, venue in this court is proper pursuant to 28 U.S.C. § 1391(e) because the NEPA decisions at issue were made by OSM's Western Regional office located in Denver, Colorado; all of the permitting records and agency personnel with knowledge of these issues are located in Denver; and the agency's actions and approvals which are at issue in this action transpired in Colorado.¹⁴

III. Justiciability

A. Standing

Federal courts are courts of limited jurisdiction; Article III of the Constitution limits their power to resolving “cases” and “controversies.” The standing doctrine reflects this fundamental limitation. Plaintiffs must “allege[ ] such a personal stake in the outcome of the controversy as to warrant [their] invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1149, 173...