Utah Intern., Inc. v. Andrus

• Decision Date: 18 April 1980
• Docket Number: Civ. A. No. 77-K-595.
• Citation: 488 F. Supp. 976
• Parties: UTAH INTERNATIONAL, INC., a Delaware Corporation, Plaintiff, v. Cecil D. ANDRUS, Secretary of the Interior; Curtis J. Berklund, Director, Bureau of Land Management, United States Department of the Interior; Vincent E. McKelvey, Director of the Geological Survey of the United States; Dale Andrus, State Director for the United States Bureau of Land Management in the State of Colorado; and J. Paul Storrs, Area Mining Supervisor, Conservation Division of the Geological Survey of the United States in the State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

488 F. Supp. 976

UTAH INTERNATIONAL, INC., a Delaware Corporation, Plaintiff, v. Cecil D. ANDRUS, Secretary of the Interior; Curtis J. Berklund, Director, Bureau of Land Management, United States Department of the Interior; Vincent E. McKelvey, Director of the Geological Survey of the United States; Dale Andrus, State Director for the United States Bureau of Land Management in the State of Colorado; and J. Paul Storrs, Area Mining Supervisor, Conservation Division of the Geological Survey of the United States in the State of Colorado, Defendants.

Civ. A. No. 77-K-595.

United States District Court, D. Colorado.

April 18, 1980.

Miles C. Cortez, Jr., Welborn, Dufford, Cook & Brown, Denver, Colo., for plaintiff.

Jerry B. Tompkins, Asst. U. S. Atty., Denver, Colo., Gerald S. Fish, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

The above-entitled action is another suit involving the federal coal leasing program which has undergone a great deal of change in the past ten years and has prompted a substantial amount of litigation. Plaintiff Utah International, Inc., seeks the issuance of a preference right coal lease for certain federal lands located in the Danforth Hills of northwestern Colorado where it began exploring for coal almost fifteen years ago. Because of the failure to issue such a lease upon a showing in 1970 that plaintiff had discovered coal in commercial quantities on these lands and the determination that plaintiff will have to meet certain new or additional requirements in order to obtain a lease, plaintiff has sued the Secretary of Interior, the Director of the Bureau of Land Management, and other federal land officials. Plaintiff seeks a declaratory judgment that a determination of the existence of coal in commercial quantities in the subject lands was made in 1970, that such determination vested in plaintiff a right to the issuance of a lease, and that such a lease should now issue; a declaratory judgment that policies and regulations promulgated after 1970 cannot be applied to require plaintiff to meet new or additional requirements in order to obtain a lease, or, if such policies and regulations would otherwise apply, then in the alternative that certain 1976 regulations are invalid as applied to plaintiff; and an order requiring the Secretary of the Interior and his authorized representatives to issue to plaintiff a preference right lease for the lands covered by Prospecting Permit No. C-0123475. The action is currently before the court on cross-motions for summary judgment.

Because the resolution of a preliminary question requires an understanding of the facts of this case, I will set out in this part of the opinion the material facts that are not in dispute. In their joint pretrial statement, the parties state the following uncontroverted facts:

1. Pursuant to Section 2(b) of the Mineral Leasing Act, as amended prior to August 4, 1976, 30 U.S.C. § 201(b), plaintiff's predecessor in interest applied for and received, effective February 1, 1965, a coal prospecting permit (identified as C-0123475), valid for a period of two years from the effective date, for certain lands in Ts. 4 N., Rs. 93 and 94 W., 6th P.M., Moffat County, Colorado, containing approximately 2,081.57 acres.

2. On or about November 1, 1965, the permit was assigned to plaintiff (formerly denominated as Utah Construction and Mining Company.)

3. Prior to expiration of the permit plaintiff applied for and received an extension thereof through January 31, 1969.

4. Prior to expiration of the extended life of the permit plaintiff applied for a preference right coal lease pursuant to 30 § U.S.C. § 201(b).

5. Plaintiff's lease application was rejected by the Colorado land office on May 2, 1969, whereupon plaintiff appealed to the Director of the Bureau of Land Management from such rejection.

6. On April 27, 1970, while plaintiff's appeal was pending, the Chief, Conservation Division, Geological Survey, acting on behalf of the Survey's Director, stated in a memorandum to the Chief, Branch of Mineral Appeals, Office of Appeals and Hearings, Bureau of Land Management, that plaintiff had `established that coal in commercial quantities exists in the lands' covered by plaintiff's permit, and he recommended that `the preference right lease be granted.'

7. By a decision of April 29, 1970, the Office of Appeals and Hearings, Bureau of Land Management, reversed the land office decision of May 2, 1969, on the basis of the Geological Survey's report of April 27, 1970, and remanded the case to the land office `for further appropriate action looking toward issuance of the preference right coal lease requested.'

8. On or about February 17, 1973, the Secretary of the Interior issued a moratorium on all coal leasing except coal leases which met short-term criteria defined in the news release announcing the moratorium.

9. On or about January 26, 1976, the Secretary of the Interior adopted a new federal coal leasing policy including a restatement of short-term criteria which must be met before preference right coal leases would issue and including a new proposed definition of the term `coal in commercial quantities.'

10. On May 7, 1976, the Secretary of the Interior published (at 41 F.R. 18847) regulation 43 C.F.R. § 3520.1-1 which, among other things, defined `commercial quantities of coal.'

11. On or about July 25, 1977, in the case of Natural Resources Defense Council v. Hughes 454 F.Supp. 148, Civil Action No. 75-1749 (U.S.D.C., D.C.), the Department of the Interior, in a memorandum filed with the Court, changed its policy and indicated that preference right coal leases could be issued even where they do not conform to the short-term criteria so long as lease issuance would be in the `public interest.'

12. On September 27, 1977, in the Hughes case, the United States District Court for the District of Columbia issued an order by which it enjoined officials of the Department of the Interior, pending the accomplishment of specified actions, from `taking any steps whatsoever, directly or indirectly, to implement the new coal leasing program, including calling for nominations of tracts for federal coal leasing and issuing any coal leases, except when the proposed lease is required to maintain an existing mining operation at the present levels of production or is necessary to meet existing contracts and the extent of the proposed lease is not greater than is required to meet these two criteria for more than three years in the future.'¹

13. On July 5, 1977, plaintiff filed documents required to support a claim of an `initial showing' of `commercial quantities of coal' under regulation 43 C.F.R. 3521.1-1(b) of May 7, 1976, at the same time expressly disclaiming any obligation to make the showing called for by the regulation.

14. To date no lease has been issued to plaintiff, nor has plaintiff's application been rejected.

(Joint Pretrial Statement, at 4-7, footnote added.)

The question presented is whether a decision by the Bureau of Land Management dated April 29, 1970, finding that plaintiff had discovered coal in commercial quantities in federal lands covered by Prospecting Permit No. C-0123475, vested in plaintiff a right to be issued a preference right coal lease, so that plaintiff cannot be required to meet new or additional requirements established after that decision. Jurisdiction is provided by 28 U.S.C. §§ 1331, 1361 and 2201-02. While the Administrative Procedure Act is not an independent basis for jurisdiction, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed. 192 (1977), it provides, in pertinent part, the applicable standards for review of federal agency action:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

. . . . .

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory rights;

. . . . .

5 U.S.C. § 706. I find that there are no material facts in dispute and that summary judgment is appropriate.

II

A preliminary question is whether this matter is ripe for judicial decision. It is not the first time that the question has been raised. In the latter part of 1978, the parties previously made cross-motions for summary judgment, which motions were set for oral argument on January 24, 1979. The question of ripeness, or exhaustion of administrative remedies, was raised in defendants' memoranda of law and at oral argument. I said from the bench and later entered a written order that:

It is beyond the authority of this Court at this time to order by mandamus that the defendants herein issue a specific lease; however, it is within the power of this Court to direct that defendants issue a decision which shall be a final administrative decision with respect to the plaintiff's pending application. Citizens v. Volpe, 401 U.S. 402 , 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Nader v. FCC, 520 F.2d 182 D.C.Cir.; Sloan v. U. S. Department of Agriculture, 335 F.Supp. 816 (D.C. 1971); Hoffman-LaRoche v. Weinberger, 425 F.Supp. 890 D.C.; International Union, et al. v. Arthurs, 480 F.2d 603, 10th Cir. (1973).

Order of February 26, 1979, as amended, at 2. As part of this order, defendants were directed "to issue within 120 days from the date of this order a final administrative order with respect to plaintiff's application for a preference right lease," and all proceedings were stayed until that administrative decision was filed with the court. Defendants' motions to dismiss and for ...