Natural Resources Defense Council, Inc. v. Jamison, Civ. A. No. 82-2763.

• Decision Date: 08 December 1992
• Docket Number: Civ. A. No. 82-2763.
• Citation: 815 F. Supp. 454
• Court: U.S. District Court — District of Columbia
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Delos Cy JAMISON, et al., Defendants.

815 F. Supp. 454

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Delos Cy JAMISON, et al., Defendants.

Civ. A. No. 82-2763.

United States District Court, District of Columbia.

December 8, 1992.

COPYRIGHT MATERIAL OMITTED

Timothy Biddle, Washington, DC, for Nat. Coal Ass'n, intervenor. Steven P. Quarles, Crowell and Moring, Washington, DC, for State of Wyo., intervenor.

Eugene D. Gulland, Coving and Burling, Washington, DC, for Shell Oil Co., intervenor.

Glenn P. Sugameli, National Wildlife Federation, Washington, DC, for plaintiff National Wildlife Federation.

Melinda Taylor, National Audubon Soc., Washington, DC, for plaintiff Nat. Audubon Soc.

Johanna H. Wald, Natural Resources Defense Council, Inc., William S. Curtiss, Sierra Club Legal Defense Fund, Inc., San Francisco, CA, for plaintiffs.

MEMORANDUM AND ORDER

BRYANT, Senior District Judge.

Background

The sale and mining of federal coal implicate a large number of overlapping statutory mandates.¹ Congress has delegated broad authority to the Secretary of the Interior to promulgate regulations in keeping with those mandates.²

Under Department of the Interior regulations, the process by which federal coal lands may be leased and mined proceeds in four basic stages, or tiers. First, the Bureau of Land Management ("the Bureau") engages in land use planning, determining potential uses for large areas of federal land, at which time the Bureau may locate coal deposits potentially appropriate for mining. The Bureau must prepare a "comprehensive" land use plan to permit future coal lease sales.³

During land use planning the Bureau identifies areas acceptable for further consideration for coal leasing by applying four "screens":

1) the potential for development of coal;

2) a list of "unsuitability criteria" mandated by various statutes;

3) multiple-use tradeoffs, including alternate resource values; and

4) surface owner opposition.⁴

Second, the Bureau engages in resource-focused activity planning, and delineates specific tracts for coal leasing.⁵ At this stage the Bureau prepares a regional lease sale Environmental Impact Statement ("EIS"), as required by the National Environmental Policy Act ("NEPA"), assessing the impact of leasing the proposed sites.

Third, the Bureau conducts a lease sale.⁶ Such sales may occur under procedures for "competitive leasing"⁷ or under "leasing on application"⁸ where in the activity planning stage private entities have requested specific tracts, generally adjacent to existing mining operations. In the case of so-called "split estate"⁹ lands, where the government owns coal but private parties own surface rights, sales may take place only after potential bidders obtain the written consent of all "qualified" surface owners and present them to the Bureau.¹⁰

Fourth, in the case of surface mining, lessees have three years, absent extraordinary circumstances, to submit an "operation and reclamation plan" which must be approved by the Office of Surface Mining Reclamation and Enforcement ("Office of Surface Mining") before a mining permit will be issued.¹¹ Lessees carry the burden of demonstrating in their operation and reclamation plan that the land they seek to mine can be reclaimed.¹² Lessees then have ten years, absent extraordinary circumstances, to commence mining "commercial quantities" of coal, or their lease will be terminated.¹³

The regulatory scheme by which the Department of the Interior authorizes the sale and mining of federal coal dates in large part to 1979.¹⁴ Plaintiffs brought this suit in 1982, after the Secretary substantially modified the 1979 regulations in an effort to ease the burden on parties seeking to obtain federal coal.¹⁵ The Department of the Interior promulgated final rules on July 30, 1982.¹⁶ On September 28, 1982 plaintiffs filed their eleven count Complaint, alleging violations of the MLA, FCLAA, SMCRA, NEPA, FLPMA, and the Administrative Procedure Act ("APA").¹⁷

A number of plaintiffs' 1982 challenges have been resolved. In count I, plaintiffs claimed that the 1979 regulations constituted "major Federal actions significantly affecting the quality of the human environment," which under NEPA must be preceded by publication of an EIS.¹⁸ Count II alleged that the defendants based their decision not to prepare a new or supplemental EIS upon an inadequate environmental assessment. Count III alleged that, in violation of the APA, defendants "failed to provide adequate explanations" for significant changes made in the coal leasing program, and that those changes had "no basis in the record."¹⁹ Congress suspended a large part of all federal coal leasing in September 1983. In the summer of 1984 the Secretary of the Interior administratively suspended all regional coal lease sales and undertook a review and revision of the entire federal coal leasing program. On October 4, 1985, the Department completed a Final Supplemental Environmental Impact Statement ("SEIS") on the coal leasing program. On February 21, 1986, the Secretary made a further series of decisions regarding coal leasing, contained in the 1986 Secretarial Issue Document ("SID"), and resumed federal coal leasing.

Granting a Joint Motion on May 9, 1986, the court dismissed plaintiffs' claims in count I ("Failure to Prepare an Environmental Impact Statement"), count II ("Failure to Prepare Adequate Environmental Assessment") and count III ("Violation of Administrative Procedure Act") as being substantially satisfied.²⁰ The court dismissed count VII ("Violation of the Mineral Leasing Act") as moot, since it was determined that the Department would subject all lands covered by pending preference right lease applications to an unsuitability review.²¹ The 1985 and 1986 departmental actions changed the status of plaintiffs' counts IV, V, and VIII, which required rebriefing. Counts VI, IX, X and XI remained unchanged.²²

On November 1, 1988, the court granted defendants' Motion for Summary Judgment based upon plaintiffs' failure to demonstrate standing to bring suit.²³ On November 9, 1989, however, the court granted plaintiffs' Motion for Reconsideration and on June 6, 1990 the court vacated its previous Order, finding Article III subject matter jurisdiction to hear plaintiffs' claims, based upon plaintiffs' submission of fifteen affidavits identifying specific tracts of land used by their members, tracts which have been affected by the disputed regulations.²⁴ Supplemental briefing on a number of issues concluded September 1990.

Six issues remain for determination.

First, count IV charges that even after changes embodied in the 1986 SID, the coal leasing program continues to violate the land use planning requirements of FCLAA and FLPMA in regard to: 1) activity planning suspended in 1984, 2) emergency leasing, 3) leasing on application, and 4) preference right lease applications. Second, count V charges that the failure to include reclaimability in the "unsuitability criteria" screen applied during land-use planning violates SMCRA.²⁵ Third, count VIII charges that agency procedures for public participation in coal leasing decisions spelled out in an agency handbook do not meet FLPMA's requirement that such procedures be provided for by regulation. Fourth, count IX charges that the failure to apply FCLAA's ten-year deadline for "diligent development" of coal to leases pre-existing at the time FCLAA became law violates FCLAA.²⁶ Fifth, count X argues that FCLAA's three year deadline for submission of an operation and reclamation plan cannot be extended by regulations to include a force majeure exception. Finally, count XI charges that the 1982 regulations do not guarantee SMCRA's requirement that no coal will be leased without the written consent of qualified surface owners.

Standard of Review

The Secretary of the Interior has been granted broad statutory authority to administer the MLA, FCLAA, SMCRA, and FLPMA. As a result, in regard to those statutory schemes this court applies the two standards articulated in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). First, in what is colloquially known as Chevron "prong one," where "Congress has directly spoken to the precise question at issue.... that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43, 104 S.Ct. at 2781. On the other hand, in what is known as "prong two" of Chevron, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." 467 U.S. at 843, 104 S.Ct. at 2781. The judicial determination of what is permissible requires deference; the standard is essentially one of reasonableness. The court "may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." 467 U.S. at 844, 104 S.Ct. at 2782.

1. Count IV, Land Use Planning Requirements of FCLAA and FLPMA

Land use plans for coal lease sales must meet the statutory requirements of the Federal Coal Leasing Amendments Act of 1976 ("FCLAA") and the Federal Land Planning and Management Act of 1976 ("FLPMA"). As a general matter, FCLAA forbids the Secretary of the Interior to issue a coal lease without prior preparation of a "comprehensive" land use plan, but leaves that term largely undefined. 30 U.S.C. § 201(a)(3)(A)(i).²⁷ Any coal lease sale must be "compatible with" that plan.²⁸ By contrast, FLPMA provides explicit criteria for required planning of all public lands.²⁹ 43 U.S.C. § 1712(c). The requirements of FLPMA are generally recognized as sufficient to meet FCLAA's requirement that plans be "comprehensive," although FCLAA has never been amended to require FLPMA plans.³⁰

The new type of sophisticated land-use plans FLPMA mandates are known as ...