Guardians v. Salazar

• Decision Date: 08 May 2011
• Docket Number: Civil Action No. 10–01174 (CKK).
• Citation: 783 F.Supp.2d 61
• Parties: WILDEARTH GUARDIANS, Defenders of Wildlife, and Sierra Club, Plaintiffs,v.Ken SALAZAR, Secretary, U.S. Department of Interior, U.S. Bureau of Land Management, and U.S. Fish and Wildlife Service, Defendants,Antelope Coal LLC, National Mining Association, and State of Wyoming, Defendant–Intervenors.
• Court: U.S. District Court — District of Columbia

783 F.Supp.2d 61

WILDEARTH GUARDIANS, Defenders of Wildlife, and Sierra Club, Plaintiffs,

v.Ken SALAZAR, Secretary, U.S. Department of Interior, U.S. Bureau of Land Management, and U.S. Fish and Wildlife Service, Defendants,Antelope Coal LLC, National Mining Association, and State of Wyoming, Defendant–Intervenors.

Civil Action No. 10–01174 (CKK).

United States District Court, District of Columbia.

May 8, 2011.

Matt G. Kenna, Public Interest Environmental Law, Durango, CO, Adam M. Kron, Defenders of Wildlife, Washington, DC, Samantha Ruscavage-Barz, Wildearth Guardians, Santa FE, NM, for Plaintiffs.Coby Howell, U.S. Department of Justice, Portland, OR, John S. Most, Department of Justice, Washington, DC, for Defendants.John Alan Bryson, Holland & Hart, Jay Christopher Johnson, Dorsey & Whitney, L.L.P., Washington, DC, Andrew C. Emrich, Hollard & Hart, LLP, James Kaste, Affie Ellis, State of Wyoming Attorney General's Office, Cheyenne, WY, for Defendant-Intervenors.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiffs Wildearth Guardians, Defenders of Wildlife, and the Sierra Club (collectively, “Plaintiffs”) commenced this civil action challenging the federal government's decision to authorize the leasing of certain public lands in northeastern Wyoming for coal mining operations. Named as defendants are Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior (the “Secretary”), the United States Bureau of Land Management (the “BLM”), and the United States Fish and Wildlife Service (collectively, the “Federal Defendants”). Intervening as defendants are Antelope Coal LLC (“Antelope”), the State of Wyoming, and the National Mining Association (collectively, the “Defendant–Intervenors”).¹ Presently before the Court are two essentially coterminous motions—the Defendant–Intervenors' [52] Motion for Partial Judgment on the Pleadings and the Federal Defendants' [53] Motion for Partial Judgment on the Pleadings. Based on the parties' submissions, the relevant authorities, and the record a whole, the Court shall grant both of the pending motions.²

I. STATUTORY AND REGULATORY BACKGROUND

The Mineral Leasing Act of 1920 (the “Act”), 30 U.S.C. §§ 181 et seq., provides that “[d]eposits of coal ... and lands containing such deposits owned by the United States ... shall be subject to disposition in the form and manner provided by this chapter.” 30 U.S.C. § 181. Under the Act, the Secretary is permitted to lease public lands for coal mining operations upon conducting a competitive bidding process:

The Secretary of the Interior is authorized to divide any lands subject to this chapter which have been classified for coal leasing into leasing tracts of such size as he finds appropriate and in the public interest and which will permit the mining of all coal which can be economically extracted in such tract and thereafter he shall, in his discretion, upon the request of any qualified applicant or on his own motion, from time to time, offer such lands for leasing and shall award leases thereon on competitive bidding.

30 U.S.C. § 201(a)(1). While the Act mandates that any coal leasing authorized by the Secretary be done by competitive bidding and prescribes certain terms and conditions for such leasing—for example, by requiring accepted bids to meet or exceed the fair market value of the coal in question—the Act has little to say about the competitive bidding process itself. Instead, Congress elected to confer upon the Secretary “sweeping authority” to promulgate regulations designed to carry out the statutory command. Indep. Petroleum Ass'n of Am. v. DeWitt, 279 F.3d 1036, 1040 (D.C.Cir.2002). The Act provides that “[t]he Secretary of the Interior is authorized to prescribe necessary and proper rules and regulations to do any and all things necessary to carry out and accomplish the purposes of this chapter.” 30 U.S.C. § 189.

Pursuant to that authority, the Secretary enacted regulations describing how the BLM would “conduct competitive leasing of rights to extract [f]ederal coal.” 43 C.F.R. § 3420.0–1. The regulations contemplate two separate coal leasing processes—specifically, the “competitive regional leasing” process and the “leasing-by-application” process. See generally 43 C.F.R. pt. 3420. Both processes are forms of competitive leasing, as both contemplate an open, public, and competitive sealed-bid process and preclude the BLM from issuing a coal lease unless the highest bid received meets or exceeds fair market value. See 43 C.F.R. §§ 3422.1, 3422.2, 3425.4.

The competitive regional leasing process is primarily agency-driven, with the BLM identifying public lands for prospective use and offering coal leases for sale. See Public Participation in Coal Leasing, 64 Fed. Reg. 52,239, 52,240 (Sept. 28, 1999). The competitive regional leasing process applies only in areas designated as “coal production regions,” which are creatures of regulation and the boundaries of which the BLM is empowered to alter:

The Bureau of Land Management shall establish by publication in the Federal Register coal production regions. A coal production region may be changed or its boundaries altered by publication of a notice of change in the Federal Register. Coal production regions shall be used for establishing regional leasing levels. 43 C.F.R. § 3400.5. In the notice of proposed rulemaking, the BLM stated that the provision was designed to “authorize[ ] the Bureau of Land Management to establish coal production regions for the purpose of setting coal leasing levels and for other coal management purposes.” Proposed Rules, 46 Fed. Reg. 61,390, 61,391–61,392 (Dec. 16, 1981). The regulations do not require the BLM to establish specific coal production regions nor provide any express guidance as to when and where the establishment of such regions would be appropriate.³ Nonetheless, once the BLM has established a coal production region, the regulations specify how the BLM should go about setting “regional leasing levels.” 43 C.F.R. § 3420.2. Specifically, when setting regional leasing levels, the BLM must—in consultation with other federal agencies, state and local governments, tribes, and regional coal teams—take into account such factors as national energy needs, industry interest in coal development, and the potential economic, social, and environmental effects of coal leasing on the region. Id. § 3420.2(c).

The leasing-by-application process, in contrast, is primarily applicant-driven, with the applicant assuming responsibility for identifying public lands for potential use and proposing specific tracts for leasing. See 43 C.F.R. §§ 3425.0–3425.5. The leasing-by-application process applies in two circumstances—specifically, in “areas outside coal production regions” and in areas within coal production regions “where an emergency need for unleased coal deposits is demonstrated.” 43 C.F.R. §§ 3425.0–2, 3425.1–5. While the leasing-by-application process is not similarly structured around regional leasing levels, the BLM must nevertheless perform an environmental analysis under the leasing-by-application process. See 43 C.F.R. § 3425.4.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Certification and Decertification of the Powder River Basin as a Coal Production Region

The Powder River Basin covers an area of approximately 24,000 square miles across northeastern Wyoming and southeastern Montana. Suppl. Compl. ¶ 23. In 1979, the BLM established several coal production regions; included among them was the Powder River Coal Production Region. See Identification of Coal Production Regions Having Major Federal Coal Interests, 44 Fed. Reg. 65,196, 65,196 (Nov. 9, 1979). As a result, any leasing within the region was presumptively required to be conducted in accordance with the competitive regional leasing process, which remained the state of affairs for the next decade.

The notice published in the Federal Register included the following statement concerning the basis for the BLM's decision to establish the various coal production regions in 1979:

In delineating the coal production regions set out in this notice, the Department has considered the following factors: 1. Similarity in type and situation of coal; 2. General transportation and markets; 3. Broad economic and social-cultural similarities; 4. Administrative efficiency; and 5. Presence of federal leases, preference right lease applications, and other indications of industry interest in Federal coal.

Identification of Coal Production Regions Having Major Federal Coal Interests, 44 Fed. Reg. at 65,196. Furthermore, in the

course of explaining why some counties were excluded from certain coal production regions—not the Powder River Coal Production Region—the BLM “noted ... that if future circumstances indicate that substantial production may occur from these counties subsequent boundary changes can be made to any of the coal production regions set out in this notice to reinstate these counties into the coal region.” Id. at 65,197.

In 1989—ten years after the Powder River Coal Production Region was first established—the BLM solicited public comments on the proposed total or partial decertification of the Powder River Coal Production Region, citing such considerations as “limited leasing interest in the region, soft market conditions for the foreseeable future, [ ] public input,” and “administrative efficiency.” Proposed Decertification of All or a Portion of the Powder River Coal Production Region, 54 Fed. Reg. 6,339, 6,339–6,340 (Feb. 9, 1989); see also Powder River Regional Coal Team Activities: Public Meeting Announcement, 54 Fed. Reg. 35,941 (Aug. 30, 1989). In so doing, the BLM observed that “if the region were partially or totally decertified, then these areas would be opened to leasing-by-application,” but left open the possibility “for the re-establishment of the regional activity planning process, should market conditions...