Ash Creek Min. Co. v. Lujan

Decision Date07 July 1992
Docket NumberNo. 91-8014,91-8014
Citation969 F.2d 868
PartiesASH CREEK MINING COMPANY, an Oklahoma Corporation, Plaintiff-Appellant, v. Manuel LUJAN, in his official capacity as Secretary of the United States Department of the Interior; and the United States Department of the Interior, Laurance S. Rockefeller, an individual; the Sloan-Kettering Institute for Cancer Research, a non-profit New York Corporation; Consolidation Coal Company, a Delaware Corporation; and Reserve Coal Properties Company, a Delaware Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Ben Aufill, of Burleson, Pate & Gibson, Dallas, Tex. (Brent R. Kunz, of Hathaway, Speight, Kunz, Trautwein & Barrett, Cheyenne, Wyo., with him on the brief), for plaintiff-appellant.

Ellen J. Durkee, Attorney, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C. (Barry M. Hartman, Acting Asst. Atty. Gen., Washington, D.C., Richard A. Stacy, U.S. Atty., Carol A. Statkus and Maynard Grant, Asst. U.S. Attys., Cheyenne, Wyo., Fred R. Wagner and Martin W. Matzen, Attorneys, Environment & Natural Resources Div., U.S. Dept. of Justice, Mark D. Etchart, Office of the Solicitor, Dept. of the Interior, Washington, D.C., Lyle K. Rising, Office of the Regional Solicitor, Dept. of the Interior, Denver, Colo., with her on the brief), for defendants-appellees Manuel Lujan, in his official capacity as Secretary of U.S. Dept. of the Interior, and U.S. Dept. of the Interior.

Richard M. Davis, Jr. (Kate M. Fox with him on the brief), of Burgess, Davis, Carmichael & Cannon, Sheridan, Wyoming, for defendant-appellee Reserve Coal Properties Co.

Gaines Gwathmey, III, of Paul, Weiss, Rifkind, Wharton & Garrison, N.Y. (Steven B. Rosenfeld and Daniel G. Cort, of Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Marcelle Shoop and Jack D. Palma, II, of Holland & Hart, Cheyenne, Wyo., with him on the brief), for defendant-appellee The Sloan-Kettering Institute for Cancer Research.

Henry L. Diamond and Christopher W. Mahoney, of Beveridge & Diamond, Washington, D.C., and Carl L. Lathrop and J. Kent Rutledge, of Lathrop & Rutledge Cheyenne, Wyo., filed a brief for defendant-appellee Laurance S. Rockefeller.

Before: SEYMOUR, SETH and ALDISERT, * Circuit Judges.

ALDISERT, Senior Circuit Judge.

We meet again a controversy between the plaintiff-appellant, Ash Creek Mining Company, and the Secretary of the Interior over certain federally owned coal located in Sheridan County, Wyoming. In Ash Creek Mining Co. v. Lujan, 934 F.2d 240 (10th Cir.1991) (Ash Creek I ), Ash Creek challenged the Secretary of the Interior's decision to set aside the Ash Creek Coal Leasing Tract in Sheridan County from competitive coal leasing and to designate it for exchange for the Whitney Benefits Tract. We held that Ash Creek's claim was unripe for decision because Ash Creek had failed to show that the Department's proposed exchange for the Whitney Benefits Tract constituted "final agency action" under the Administrative Procedure Act, 5 U.S.C. § 704. Id. at 243-44. We did not reach the question of standing.

Following the original appeal, the Secretary of the Interior did complete an exchange of 2,560 acres of coal in the Ash Creek and Youngs Creek Coal Leasing Tracts for the JY Ranch conservation easement in the Grand Teton National Park. In Ash Creek I, Ash Creek Mining Company had opposed the possible exchange of the coal in the Ash Creek tract. This time it opposed the completed exchange, but the district court dismissed its complaint for lack of standing. This appeal by Ash Creek squarely presents the question whether Ash Creek has Article III standing to challenge the completed exchange. We hold that it does not have standing and affirm the judgment of the district court.

The district court had subject matter jurisdiction based on 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(a), Fed.R.App.P.

We review de novo the grant of a motion to dismiss for lack of standing. Riggs v. City of Albuquerque, 916 F.2d 582, 584 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1623, 113 L.Ed.2d 720 (1991). A motion to dismiss is properly granted when it appears beyond doubt that the plaintiff could prove no set of facts entitling it to relief. Huxall v. First State Bank, 842 F.2d 249, 251 (10th Cir.1988). We must construe the complaint in favor of the plaintiff, accepting as true all material allegations. American Mining Congress v. Thomas, 772 F.2d 640, 650 (10th Cir.1985) (citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 718 (1986).

I.

The facts are undisputed. On August 9, 1985, Laurance S. Rockefeller agreed to exchange a conservation easement on his ranch, known as the JY Ranch, located within the Grand Teton National Park in Northeast Wyoming, for certain Sheridan County coal owned by the Department of the Interior. In December 1987, Rockefeller donated the JY Ranch conservation easement to The Sloan-Kettering Institute for Cancer Research, a non-profit organization, which then became the exchange proponent.

The Bureau of Land Management (hereinafter "the Bureau") subsequently prepared an environmental assessment of the proposed exchange. The Bureau concluded that the exchange presented no significant environmental impact and determined that an environmental impact statement was not necessary. On November 3, 1989, the Bureau published a Notice of Realty Action in the Federal Register outlining the proposed exchange of 2,560 acres of federal coal located in the Ash Creek and Youngs Creek Coal Leasing Tracts in Sheridan County, Wyoming, for 1106.49 acres of the JY Ranch conservation easement. The Notice provided for public comment/protest within 45 days.

Ash Creek Mining Company and others filed oral and written protests to the exchange. Ash Creek, a wholly owned subsidiary of the Public Service Company of Oklahoma (PSO), holds an operating permit for its PSO No. 1 Mine on a 160-acre fee coal tract adjacent to portions of the federal coal offered for exchange. Approximately 70 acres of the exchanged coal underlie a portion of the surface land owned by Ash Creek. Ash Creek has invested $14.5 million in the PSO No. 1 Mine and adjoining acreage.

On May 10, 1990, Sloan-Kettering conveyed the conservation easement in the JY Ranch to the United States by warranty deed. On May 11, 1990, the Assistant Secretary of the Interior for Land and Minerals Management dismissed the protests filed in response to the Notice. On the same date, the Bureau of Land Management accepted title to the conservation easement on behalf of the National Park Service and issued Sloan-Kettering a patent granting title to the coal. Sloan-Kettering subsequently sold the coal rights to Reserve Coal Properties Company.

II.

On August 21, 1990, Ash Creek filed a complaint in federal district court against the Secretary of the Interior, the Department of the Interior, Rockefeller, Sloan-Kettering, Consolidation Coal Company and Reserve Coal Properties seeking judicial review of the Secretary's action and requesting that the JY Ranch exchange be voided. The complaint declared that Ash Creek opposed the exchange primarily because it wanted to acquire the rights to the coal through the Secretary's competitive coal leasing program:

35. ACMC [Ash Creek Mining Company] has invested $14.5 million in the PSO Mine No. 1 and adjoining acreage. On January 21, 1976, ACMC secured an operating permit for its PSO Mine No. 1 from the Wyoming Department of Environmental Quality, Land Quality Division, on a 160 acre fee coal tract adjacent to portions of the federal coal that was exchanged to the Defendant Sloan-Kettering. Approximately seventy acres of the coal exchanged underlie a portion of ACMC's permitted mine site on which are located a spoil pile and a major water-control facility which served the PSO No. 1 Mine. It is necessary to acquire the federal coal to maintain the viability of PSO No. 1 Mine. It is necessary to acquire the federal coal to expand the existing mine and fulfill the original purpose to serve the operating utilities of the Central and South West System. It is necessary to expand onto the federal coal so as to earn a return on the original investment in the PSO No. 1 Mine and the adjoining acreage.

36. Beginning in 1976, ACMC and certain of its affiliated companies have submitted expressions of competitive leasing interest for the federal coal that is adjacent to its permitted mine. ACMC's efforts to have the federal coal disposed of in a competitive lease sale have not been successful.

37. Disposing of the federal coal by exchanges instead of by competitive leasing deprives ACMC the opportunity of providing fuel for the electrical needs of its customers served by the Central and South West System. ACMC is specifically injured by the Defendants actions. Such actions have destroyed the value of the investment made to acquire needed fuel for electric power generation made by ACMC and its parent company, Public Service Company of Oklahoma, in the PSO No. 1 Mine and adjoining acreage. By depriving ACMC and its affiliated companies from competitively bidding for coal needed for electric power generation, ACMC must seek less favorable, more costly long term fuel supplies to serve the needs of over 1,530,618 electric customers.

38. The exchanged coal lies beneath the SW 1/4 of Section 22 of ACMC's permitted minesite. The private ownership of the coal estate underlying the SW 1/4 of Section 22 diminishes the value of ACMC's investment by placing significant facilities necessary and essential to environmental protection, mining operation, and permit compliance at the PSO Mine No. 1 at the whelm of the development schedule of Defendants Consolidation Coal Company and Reserve Coal Properties Company. Hundreds of thousands of...

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