Kescoli v. Babbitt, 94-17125
| Decision Date | 22 November 1996 |
| Docket Number | No. 94-17125,94-17125 |
| Citation | 101 F.3d 1304 |
| Parties | , 27 Envtl. L. Rep. 20,542, 96 Cal. Daily Op. Serv. 8480, 96 Daily Journal D.A.R. 14,039 Maxine KESCOLI, Plaintiff-Appellant, v. Bruce BABBITT, The Office of Surface Mining Reclamation and Enforcement, and The Office of Hearings and Appeals, Defendants-Appellees, and Peabody Western Coal Company, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Timothy A. Heydinger, DNA People's Legal Services, Inc., Chinle, AZ, and Timothy N. Black, Wilmer, Cutler & Pickering, Washington, DC, for plaintiff-appellant.
David C. Shilton, United States Department of Justice, Washington, DC, for defendants-appellees.
James R. Bird, Shea & Gardner, Washington, DC, for intervenor-appellee, Peabody Western Coal Company.
Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-93-00839-RCB.
Before: THOMPSON, KLEINFELD and TASHIMA, Circuit Judges.
Peabody Western Coal Company (Peabody) conducts coal mining operations at the Kayenta/Black Mesa mining complex pursuant to lease agreements entered into with the Navajo Nation and the Hopi Tribe. The United States Department of the Interior Office of Surface Mining (OSM) issued a permit to Peabody, which contained eighteen special conditions, governing Peabody's mining activities under the lease agreements at the Kayenta mine complex. Peabody challenged the majority of the special conditions. The present dispute arises out of the modification of special condition one through a settlement agreement entered into among Peabody, the OSM, the Navajo Nation, and the Hopi Tribe.
Maxine Kescoli, an enrolled member of the Navajo Nation, opposes the settlement of special condition one because she believes the condition, as modified by the settlement, does not guarantee adequate protection of sacred burial sites. After an Administrative Law Judge (ALJ) and the Interior Board of Land Appeals (IBLA) approved the settlement, Kescoli brought this action in the district court, naming as defendants the Secretary of the Interior, the OSM, and the IBLA. Kescoli sought a declaration that the modified condition was invalid.
The district court determined that Peabody was a necessary party, and that the Navajo Nation and the Hopi Tribe were necessary and indispensable parties that could not be joined due to their sovereign immunity. The court then dismissed the action under Federal Rule of Civil Procedure 19(b). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In approximately 1970, Peabody began its coal mining operations at the Kayenta/Black Mesa mine complexes. Although the mine complexes are located on the Navajo Nation's reservation, the Navajo Nation and the Hopi Tribe are joint owners of some of the subsurface minerals. 25 U.S.C. § 640d-6.
In 1984, the OSM issued new regulations governing the permitting of mining operations on Native American lands. The new regulations required permits for all mining operations, but allowed existing mining operations to continue while awaiting action on permit applications.
In 1984, Peabody submitted a permit application for the Kayenta/Black Mesa mining complexes. Between 1985 and early 1990, the OSM was considering the application and preparing an environmental impact statement (EIS) addressing the Kayenta/Black Mesa mining operation. The EIS recommended approval of Peabody's permit application, subject to special conditions, to ensure compliance with the Surface Mining Control and Reclamation Act (SMCRA) and other federal laws.
In July 1990, the OSM issued permit AZ-0001C. This permit was limited to the Kayenta mine. The OSM reserved action on the Black Mesa mine. The permit included eighteen special conditions. At dispute in the present appeal is special condition one, which originally provided:
Within 30 days of permit issuance, [Peabody] shall submit to OSM a description of measures, in addition to those proposed in the permit application package as it applies to the Kayenta Mine (PAP/KM), that [Peabody] will take to mitigate impacts on sacred and ceremonial sites. Such measures shall include: (1) verification, and mitigation of impacts where necessary, of the sacred and ceremonial resources identified in OSM's "Black Mesa-Kayenta Mine Final Socioeconomic Technical Report;" (2) coordination with any sacred site advisory committee formed by the Hopi or Navajo Tribe for exchanging information regarding sacred site concerns; and (3) means to resolve disputes between PCC and the Tribes regarding sacred and ceremonial sites.
In August 1990, Peabody challenged thirteen of the special conditions, including special condition one, and filed a request for review. The ALJ permitted the Navajo Nation, the Hopi Tribe, and Kescoli to intervene.
After several hearings and after the parties had reached agreement on nine of the special conditions, the ALJ asked the parties to continue to pursue a settlement of the remaining conditions. After extensive negotiations, Peabody, the OSM, the Navajo Nation, and the Hopi Tribe reached an agreement on special condition one.
As modified by the settlement, special condition one: (1) adopts procedures to identify concerns about the impact of mining on religious and ceremonial locations; (2) addresses methods by which the Navajo Nation, the Hopi Tribe, and individual tribal members can communicate their concerns to Peabody, assuring that those communications will be kept confidential; (3) imposes an obligation on Peabody to meet annually with the Navajo Nation, the Hopi Tribe, and the OSM "to review the progress of the mining operation and future mining plans in order to keep the tribes informed concerning the anticipated schedule of areas to be disturbed;" and (4) imposes an obligation on the OSM to evaluate the procedures used to protect the religious sites at the end of the five-year permit to determine if revisions are needed.
Kescoli opposes the modification to condition one. She argues the original condition adequately protected burial sites, but the modified condition does not. Specifically, she argues the modified condition will permit Peabody to mine within 100 feet of a burial site, in violation of the SMCRA, 30 U.S.C. § 1272(e)(5).
In 1992, the ALJ approved the settlement, addressing special condition one. The ALJ determined the settlement satisfied the concerns underlying the original condition and "more adequately addresse[d]" the OSM's desire to improve communications between Peabody and the Tribes, and the Tribes' desire for confidentiality and regular review of Peabody's mining operations. With regard to mining near burial sites, the ALJ determined that Kescoli could not challenge whether the permit adequately protects burial sites because the proceeding was limited to a challenge to the special conditions rather than to the issuance of the permit.
Kescoli then filed a petition for review with the IBLA. The IBLA affirmed the ALJ's approval of the settlement of special condition one. The IBLA found the settlement agreement to be "fair, adequate, reasonable" and not in violation of the SMCRA. Specifically, the IBLA found that the modified condition did not diminish Peabody's mitigation obligations and that federal law and the Navajo Burial Policy provide "ample protection for the known burials sacred to Kescoli." The IBLA denied Kescoli's request for reconsideration.
Kescoli then filed a petition for review in the district court. That court dismissed Kescoli's petition, because it determined the Navajo Nation and the Hopi Tribe were necessary and indispensable parties who could not be joined due to their sovereign immunity. Kescoli appeals. 1
We first must determine whether Kescoli's appeal is moot. After the filing of the parties' initial briefing, permit AZ-0001C expired. We issued an order requiring the parties to submit supplemental briefing addressing whether the appeal is moot. Peabody, who intervened in the action, and the Secretary of the Interior then moved to dismiss the appeal on mootness grounds.
If the appeal is moot, we lack jurisdiction over the appeal. In re Bunker Ltd. Partnership, 820 F.2d 308, 310 (9th Cir.1987). The appeal is moot if "the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Friends of Payette v. Horseshoe Bend Hydroelec., 988 F.2d 989, 996 (9th Cir.1993) (quotation omitted).
On July 6, 1995, permit AZ-0001C was superseded by renewal permit AZ-0001D. In permit AZ-0001D, special condition one now reads:
[Peabody] must continue to adhere to the requirements of the Settlement Agreement approved by the Administrative Law Judge on July 2, 1992 regarding the appeal of Special Condition No. 1 attached to the AZ-0001C permit on July 6, 1990. In addition, OSM will evaluate the success of the enhancement program proposed by [Peabody] in a letter to the [OSM] dated June 23, 1995, 18 months into the permit AZ-0001D term. This evaluation will include the determination of whether additional requirements are necessary to enhance the protection of religious/ceremonial sites.
Although the original permit has expired, the special condition challenged by Kescoli is still in effect. The only modification to the special condition is the addition of the enhancement program. This does not materially modify the terms of special condition one.
The present appeal is distinguishable from the appeal in Northwest Resource Info. Center v. NMFS, 56 F.3d 1060 (9th Cir.1995). In Northwest, the appeal challenged agency action which had already "beg[un] and ended." Id. at 1069. Relying on the well-established rule that a case is moot if the court cannot "undo what has already been done," we concluded...
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