Southern Utah Wilderness Alliance v. Office Of Surface Mining Reclamation

• Decision Date: 23 September 2010
• Docket Number: No. 09-4003.,09-4003.
• Citation: 620 F.3d 1227
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE, Plaintiff-Appellant, v. OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, and Bureau of Land Management, Defendants-Appellees, and UtahAmerican Energy, Inc., Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

620 F.3d 1227

SOUTHERN UTAH WILDERNESS ALLIANCE, Plaintiff-Appellant,

v. OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, and Bureau of Land Management, Defendants-Appellees,andUtahAmerican Energy, Inc., Intervenor.

No. 09-4003.

United States Court of Appeals,Tenth Circuit.

Sept. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Joshua M. Segal, Jenner & Block LLP, Washington, DC, (Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, and William M. Hohengarten, Jenner & Block LLP, Washington, DC, with him on the briefs) for Plaintiff-Appellant.

Jared C. Bennett, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with him on the brief) Office of the United States Attorney, Salt Lake City, UT, for Defendants-Appellees.

With submission on brief by Denise A. Dragoo and Troy L. Booher, Snell & Wilmer L.L.P., Salt Lake City, UT, and John E. Jevicky, Dinsmore & Shohl LLP, Cincinnati, OH, for Intervenor.

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Southern Utah Wilderness Alliance (SUWA) fought for many years to prevent the permitting of the proposed Lila Canyon coal mine in Utah. SUWA's members include those who enjoy the aesthetic qualities of the canyon and its surroundings, and believe that allowing coal mining in Lila Canyon would disrupt its natural beauty.

In this appeal, SUWA challenges decisions made by two federal agencies that would allow UtahAmerican Energy, Inc. (UEI) to proceed in the development of the Lila Canyon Mine. First, SUWA challenges the district court's conclusion that the Bureau of Land Management (BLM) properly suspended UEI's coal lease and tolled the statutory diligent development period, thereby extending the time in which UEI could begin coal production. Second, SUWA objects to the district court's determination that the Office of Surface Mining Reclamation and Enforcement (OSM) did not violate its statutory duties when it declined to prepare an updated recommendation regarding UEI's mining plan.

This court has jurisdiction pursuant to 28 U.S.C. § 1291. We agree with the district court that BLM acted properly in determining UEI's lease is still valid, and that OSM was in conformity with its statutory duties when it declined to issue a new recommendation. Accordingly, we AFFIRM the district court's decision.

I. Background

UEI is the owner of six coal leases located in Lila Canyon, Utah. These leases were assigned to UEI on September 22, 2000, from the previous owner.

Before UEI could begin mining these federal coal reserves, it had to obtain various state and federal approvals. According to the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201-1328, UEI had to obtain a SMCRA permit from the state of Utah. See 30 C.F.R. § 944.30 (delegating authority to Utah to issue mining permits on federal lands). From the federal government, UEI needed approval of a mining plan under the Mineral Leasing Act of 1920 (MLA), 30 U.S.C. §§ 181-287, which falls under the authority of the Assistant Secretary for Land and Minerals Management in the Department of the Interior.

To streamline application processes, a unified application packet for both the SMCRA permit and the MLA mining plan approval is submitted to the Utah Division of Oil, Gas, and Mining (Division of Mining) ¹ , and the portions relevant to the MLA mining plan approval are sent to the federal agencies responsible for assisting the Assistant Secretary in making the decision-in this case, OSM. UEI submitted a unified packet application in order to obtain the necessary state and federal approvals to begin mining operations on its leases.

A. State Permit Proceedings

On July 27, 2001, the Division of Mining approved UEI's application for a surface mining permit. SUWA appealed this decision on September 4, 2001, to the Utah Board of Oil, Gas, and Mining, a panel responsible for overseeing the Division of Mining. In a decision dated December 14, 2001, the Board found that the Division of Mining granted the permit in error, since UEI had failed to provide sufficient data regarding certain aspects of the environmental impact of its proposed mining operations. The Board therefore remanded the permit to the Division for further proceedings, and the Division thereafter sought additional environmental data from UEI. UEI opted to simply comply with the Board's decision and follow the remanded permit process rather than exercise its right to seek appellate review of the Board's decision in the Utah Supreme Court.

Against this procedural backdrop, several federal laws bear keeping in mind. Federal coal leases are subject to a ten-year “diligent development” requirement. 30 U.S.C. § 207(a). If a lease fails to produce “commercial quantities” of coal within ten years, the lease “shall be terminated.” Id. The Secretary of the Interior, however, has the authority to suspend the development period required by statute, “for the purpose of encouraging the greatest ultimate recovery of coal.” 30 U.S.C. § 209. A lease owner may request a suspension through BLM. A suspension affects all requirements contained in a coal lease, and “tolls the ten-year diligent development period for the length of time the lease is suspended.” Hoyl v. Babbitt, 129 F.3d 1377, 1380 n. 2 (10th Cir.1997).

The diligent development period for UEI's coal leases began to run on February 1, 1995. Therefore, without a suspension of its leases, UEI had only until February 1, 2005 to begin producing commercial quantities of coal.

Due to delays caused in part by the appeal brought by SUWA in 2001, UEI applied for a suspension of these leases on January 15, 2002. In its application to BLM, UEI listed as justifications for the suspension a government re-inventory of portions of the affected canyon lands, and legal challenges by SUWA, which had “resulted in a remand” of the state permit. JA 1054-55. UEI requested a four-year suspension.

BLM granted UEI's request for a suspension order on November 12, 2002, nearly eleven months after UEI first requested the suspension. Instead of granting the four-year suspension UEI requested, BLM ordered that the suspension would be “effective 4 September 2001,” going back to the date of SUWA's appeal to the Board, and “continue until 15 days after the final court decision of the SUWA appeal dated 4 September 2001.” JA 1090.

Over the next few years, UEI continued to seek SMCRA permit approval from the Division of Mining, and SUWA continued its involvement in this process as well. During this period, as a condition of its lease suspension, UEI submitted annual reports to BLM certifying “that the conditions that warranted this suspension continue to exist.” JA 1093; see also JA 1096-1098 (annual certifications describing the ongoing permitting process). UEI did not engage in any beneficial use of the leased areas, as this would have ended the suspension. All parties to the present litigation-UEI, BLM and SUWA-acted as though the suspension was in effect the entire time. ²

On March 2, 2007, BLM issued a second order that “amended” the original suspension order of 2002. This new order stated that it had “come to the attention of this office that there is no court case pending in this matter.” ³ JA 1122. According to this new order, the suspension was amended to terminate fifteen days after “completion of all State permit and Federal actions, including resolution of potential administrative and judicial appeals.” Id.

B. Federal Permit Proceedings

In addition to obtaining a surface mining permit from Utah, UEI was also required to obtain federal approval of an MLA mining plan before it could commence mining operations. It is the responsibility of the Department of the Interior to approve or disapprove an MLA mining plan as part of the permitting process. See 30 C.F.R. § 746.11. To assist the Department in making this decision, OSM prepares a recommendation based on the permit application package and other information regarding the proposed mining plan. See 30 C.F.R. § 746.13. Based on the information provided in UEI's original unified application packet, OSM recommended approval of the plan.

The Department approved UEI's mining plan on November 5, 2001, but UEI could not begin mining operations until it obtained its surface mining permit from the Division of Mining. In 2007, the Division approved a new surface mining permit, and UEI settled an appeal brought by SUWA later that year.

With the state mining permit finally in hand, UEI could begin mining operations-as long as the MLA approval from 2001 was still in effect. But SUWA was once again involved in the process, this time contacting OSM to request that it issue a new recommendation regarding the MLA mining plan, taking into account the additional information UEI had submitted during the remanded state permit process. OSM considered the request and decided it was not legally obligated to do so because a new recommendation is only necessary for an approved MLA mining plan if that plan has been modified or canceled. OSM concluded the plan approved in 2001 had not been modified or canceled, and on June 26, 2007, informed SUWA it would not be preparing a new recommendation.

From both of these final decisions, SUWA appealed. The district court affirmed the agency actions, and SUWA appealed to this court. After this appeal began, UEI informed the court that it had begun beneficial use of the leased land in 2009, thus ending the suspension period granted in the 2002 and 2007 Orders.

II. Analysis

The Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., requires federal agencies to act reasonably and in accordance with applicable law. If they do not, courts may set aside those agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Our review of the lower court's decision is de novo, and we “owe no deference to the district...