Save Our Cumberland Mountains v. Norton

• Citation: 297 F.Supp.2d 1042
• Decision Date: 31 October 2003
• Docket Number: No. 3:03-CV-462.,3:03-CV-462.
• Parties: SAVE OUR CUMBERLAND MOUNTAINS, et al., Plaintiffs, v. Gale A. NORTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

297 F.Supp.2d 1042

SAVE OUR CUMBERLAND MOUNTAINS, et al., Plaintiffs, v. Gale A. NORTON, et al., Defendants.

No. 3:03-CV-462.

United States District Court, E.D. Tennessee, at Knoxville.

October 31, 2003.

COPYRIGHT MATERIAL OMITTED

Dean H. Rivkin, Knoxville, TN, Joe W. McCaleb, Hendersonville, TN, Mary Mastin, Cookeville, TN, Scott Gollwitzer, Asheville, NC, Amanda Moore, Prestonsburg KY, Martin J. Bergoffen, Asheville, NC, for plaintiffs.

Pamela G. Steele, U.S. Department of Justice, Office of U.S. Attorney, Charles P. Gault, U.S. Department of the Interior, Office of Field Solicitor, Knoxville, TN, for defendants.

John W. Hays, Laura Keller, Stites & Harbison, Lexington, KY, Garry K. Grooms, Stites & Harbison, PLLC, Nashville, TN, for intervenor defendant.

MEMORANDUM OPINION

VARLAN, District Judge.

Plaintiffs in this action are four nonprofit organizations who are seeking relief under the National Environmental Policy Act (hereinafter "NEPA") from the decision of the United States Department of the Interior Office of Surface Mining, Reclamation and Enforcement (hereinafter "OSM") to issue a permit to Robert Clear Coal Corporation (hereinafter "RCCC") to conduct mining operations in Campbell and Scott Counties, Tennessee. Plaintiffs assert that OSM's decision to issue the permit was arbitrary and capricious and not in accordance with the requirements of NEPA. The defendants in this action are Gale A. Norton as the Secretary of the Department of the Interior, Jeffrey D. Jarrett as the Director of OSM, and George Miller as the Director of OSM's Knoxville Field Office. RCCC is an intervening defendant per this Court's previous order [Doc. 19].

The case is before the Court on the plaintiffs' motion for preliminary injunction [Doc. 2]. Plaintiffs are specifically requesting the court to issue an order "revoking Permit Number 3116 and enjoining Defendants, their agents and assigns from utilizing or allowing this permit to be utilized by the permit applicant/permittee, the Robert Clear Coal Corporation, until such time as Defendants have fully complied with the National Environmental Policy Act and the full environmental impacts of this massive coal mining operation have been studied." [Id.] Plaintiffs' motion is vigorously opposed by OSM and RCCC. The Court has carefully reviewed the parties' briefs, affidavits, and supporting documents [Docs. 3, 15, 20, 21, 22, 25], as well as considered the arguments of counsel presented on October 7, 2003.

For the reasons set forth herein, the Court will respectfully DENY plaintiffs' motion for preliminary injunction.

I. Relevant Facts

Plaintiffs initiated this action on September 4, 2003, to challenge OSM's decision to issue permit number 3116 to RCCC to conduct coal mining operations in Campbell and Scott Counties, Tennessee. [Doc. 1 at ¶ 1.] RCCC's application was submitted to OSM pursuant to the Surface Mining Control and Reclamation Act ("SMCRA"), which OSM is charged with enforcing. The record reflects that RCCC submitted its application to OSM on June 28, 2002, and that the ensuing year-long review of that application resulted in numerous revisions in response to public comments, notices of technical deficiencies, and comments from federal agencies. [Doc. 15 at pp. 11-12.]

RCCC's application sought permission "to conduct surface and auger mining on the Splint, Windrock, Walnut Mountain, Red Ash, and Braden Mountain coal seams." The proposed mining area is approximately 10 miles southwest of the town of Jellico and 0.5 miles northwest of the Elk Valley community. The proposed permit area is 2,107 acres, with approximately 1,148.7 acres to be disturbed during the 9.9-year life of the project. Much of the proposed permit area was previously surface mined between the late 1960's and the early 1980's with unreclaimed land remaining. The land is privately owned, with portions of the land leased for hunting and timber cutting, and some occasional recreational activities are permitted. [Doc. 1, Ex. 1 at pp. IV-1, 2, 4.] OSM provided a 30-day period for comments on the proposed application and a public hearing was held in the Elk Valley community. [Id. at p. IV-14.]

The permit was issued July 3, 2003, following a Finding of No Significant Impact ("FONSI") and an Environmental Assessment ("EA") issued by OSM on June 30, 2003 and July 2, 2003, respectively. [Doc. 1 at ¶ 33.] Among the many requirements of SMCRA, permit 3116 requires RCCC to reclaim over 412 acres of abandoned mine land which has been subjected to previous mining operations. [Doc. 22, Ex. A at ¶ 17.] The permit also addresses restrictions designed to enhance wildlife populations. [Doc. 1, Ex. 1 at pp. IV-19-24.]

RCCC submitted numerous affidavits and documentary evidence which relate to the economic benefits of this permit to RCCC, its suppliers and vendors, and the surrounding community. As the operation continues to grow, RCCC is increasing the number of its employees and the number of suppliers and vendors. RCCC points out that, through the benefit of this permit, it is able to provide gainful employment to citizens of an economically depressed area, that it is required to contribute to a federal program for the reclamation of abandoned mine lands, and that it provides tax dollars to local and state governments. RCCC predicts that the revocation of its permit would have dire economic consequences to its employees, suppliers, vendors and the community. [Doc. 20 at pp. 4-5.]

Plaintiffs acknowledge the economic significance of RCCC's business to the community, but argues that in balancing such harm, the economic injury to RCCC is outweighed by the irreparable injury to the environment caused by RCCC's operation. [Doc. 21 at pp. 17-20.]

II. Standard of Review

The parties agree that this Court has jurisdiction to review NEPA claims pursuant to the Administrative Procedure Act, 5 U.S.C. § 704.¹ The federal defendants, in particular, point out that the Court's review of a federal agency decision under the APA is a review of the administrative record and a determination, based on the administrative record, of whether that decision was arbitrary and capricious. 5 U.S.C. § 706(2)(A) ("The reviewing court shall hold unlawful and set aside agency action, finding, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."). See Communities, Inc. v. Busey, 956 F.2d 619, 623 (6th Cir.), cert. denied, 506 U.S. 953, 113 S.Ct. 408, 121 L.Ed.2d 332 (1992) ("agency decisions are set aside only if they are `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"); Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997) (same).

The defendants have represented that the administrative record in this case is over 7,000 pages and includes numerous maps. Accordingly, the administrative record has not yet been assembled and the federal defendants therefore argue that consideration of plaintiffs' motion for preliminary injunction is premature and that the Court cannot determine OSM's decision as arbitrary and capricious without the benefit of reviewing the administrative record. [Doc. 15 at pp. 14-15.] While the Court agrees that review under the APA is normally a review of the administrative record, see Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ("the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court"), the Court notes that plaintiffs' position is that the EA is deficient "on its face" and that the administrative record is unnecessary to determine the sufficiency of their claims. [Doc. 21 at p. 2.] Indeed, the plaintiffs specifically requested that the Court proceed with argument on the motion for preliminary injunction without waiting for the administrative record to be filed. Consequently, based on plaintiffs' request, the Court will consider whether plaintiffs are entitled to a preliminary injunction based on a review of the record as it currently exists, i.e., whether plaintiffs are likely to succeed on the merits that OSM's issuance of permit 3116 was arbitrary and capricious.

The parties agree that the Court should consider four criteria in assessing whether to issue a preliminary injunction. The Court must consider: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction. Southwest Williamson County Cmty. Ass'n, Inc. v. Slater, 243 F.3d 270, 277 (6th Cir.2001) (quoting McPherson v. Michigan High School Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir.1997)). A careful review of the record indicates that it is the first factor, the likelihood of success on the merits, which plaintiffs cannot satisfy at this stage and which will be the focus of this opinion.

III. The Parties' Positions

Plaintiffs' briefs [Docs. 3, 21, 25] set forth several arguments why they are likely to succeed on the merits and therefore why they are entitled to a preliminary injunction. In essence, plaintiffs assert that OSM's decision to issue permit 3116 was arbitrary and capricious because OSM did not prepare an EIS for this project. Plaintiffs claim that OSM failed to properly consider alternatives to the proposed action and failed to fully explore the impacts of the proposed action.

RCCC argues that, although plaintiffs claim they want OSM to take a "hard look" at the environmental issues as required by NEPA, plaintiffs really just disagree with OSM's decision and such disagreement does not constitute an arbitrary or capricious decision. [Doc. 20.] RCCC also argues strenuously that revocation of its permit would cause serious, perhaps devastating, financial...