WildEarth Guardians v. Bernhardt
| Decision Date | 03 February 2021 |
| Docket Number | CV 17-80-BLG-SPW |
| Parties | WILDEARTH GUARDIANS and MONTANA ENVIRONMENTAL INFORMATION CENTER, Plaintiffs, v. DAVID BERNHARDT, in his official capacity of Secretary of the Interior, et al., Defendants, and SPRING CREEK COAL, LLC, and NAVAJO TRANSITIONAL ENERGY COMPANY, LLC, Intervenors. |
| Court | U.S. District Court — District of Montana |
Before the Court is Magistrate Judge Cavan's Findings and Recommendations, submitted February 11, 2019, addressing cross-motions for summary judgment filed by Plaintiffs WildEarth Guardians ("WildEarth") and Montana Environmental Information Center ("MEIC"), Federal Defendants, and Intervenor Defendant Spring Creek Coal, LLC ("Spring Creek"). (Doc. 71). Judge Cavan recommended that Plaintiffs' motion for summary judgment (Doc. 37) be granted in part, that Federal Defendants' cross-motion for summary judgment (Doc. 59) be denied, and that Spring Creek's cross-motion for summary judgment (Doc. 62) be denied. All parties timely filed objections to Judge Cavan's recommendations. (Docs. 76, 77, 78). However, before the Court could address the merits of the objections, the matter was stayed pending resolution of Spring Creek's bankruptcy proceedings. (Doc. 86). The bankruptcy matter has since resolved with Intervenor Navajo Transitional Energy Company, LLC ("Navajo") purchasing Spring Creek's economic interest in the subject mine. (Docs. 90, 96). Navajo has expressed it will rely on the legal claims made by Spring Creek. (Doc. 100 at 2). After careful review of the filed objections and supplemental authorities (Docs. 92, 100, 101), the Court adopts Judge Cavan's findings and recommendations in full.
Plaintiffs, Federal Defendants, and Spring Creek filed timely objections to the findings and recommendations. (Docs. 76, 77, 78). The parties are entitled to de novo review of those portions of Judge Cavan's findings and recommendations to which they properly object. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The Court may accept, reject, or modify, in whole or in part, those findings and recommendations objected to. 28 U.S.C. § 636(b)(1).
No party objected to Judge Cavan's recitation of the background facts of this case. As such, the Court adopts and repeats that recitation here.
This lawsuit follows a prior action in this Court, in which WildEarth challenged the same mining plan modification that is at issue here. WildEarth Guardians v. U.S. Office of Surface Mining, Reclamation & Enf't, et al., 14-CV-13-BLG-SPW-CSO ("WildEarth I"). The earlier litigation resulted in summary judgment in favor of WildEarth, with the Court finding the Office of Surface Mining Reclamation and Enforcement ("OSM") violated the public participation and notice provisions of the National Environmental Policy Act ("NEPA"), and failed to take the requisite "hard look" at the consequences of approving the mining plan modification. WildEarth I, 2016 WL 259285 (D. Mont. Jan. 21, 2016). The Court, therefore, remanded the matter to OSM for further proceedings, but allowed mining to continue pending remand. Id. at *3.
The Spring Creek Mine is a surface coal mine located in Big Horn County, Montana, approximately 32 miles north of Sheridan, Wyoming. (A.R. 10723.) Coal has been mined on a commercial scale at the mine since 1979. (A.R. 10723.)
In 2005, Spring Creek filed an application with the BLM to lease an additional 1,117.7 acres of federal coal in order to extend the life of the mine. (A.R. 10724.) After completing an Environmental Assessment ("EA") and issuing a Finding ofNo Significant Impact ("FONSI"), BLM issued the lease to Spring Creek, effective December 1, 2007 (referred to as "Federal Coal Lease MTM 94378"). (A.R. 10724.)
In 2008, Spring Creek submitted a permit application to the state to extend coal mining onto Federal Coal Lease MTM 94378. (A.R. 10727.) In June 2011, the Montana Department of Environmental Quality approved the permit. (A.R. 10727.) Spring Creek also proposed a mining plan modification to OSM for the lease. (A.R. 10727.) On June 5, 2012, OSM issued a FONSI, and the mining plan modification was approved. (A.R. 10727.)
In February 2013, conservation groups sued, and as mentioned, the matter was remanded for further proceedings in January 2016. WildEarth I, 2016 WL 259285 (Jan. 21, 2016). In response to the Court's ruling, OSM prepared an updated EA in September 2016 (A.R. 10710-815), reissued a FONSI on October 3, 2016 (A.R. 10694-99), and the mining plan modification was again approved.
The instant lawsuit is Plaintiffs' challenge to the updated EA and FONSI.
No party objected to Judge Cavan's recitation of the legal standards applicable to this ruling. As such, the Court adopts and repeats that recitation here.
NEPA is a procedural statute enacted to protect the environment by requiring government agencies to meet certain procedural safeguards before taking action affecting the environment. See Cal. Ex. rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d 999, 1012 (9th Cir. 2009). In other words, NEPA "force[s] agencies to publicly consider the environmental impacts of their actions before going forward." Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 963 (9th Cir. 2002).
NEPA requires an agency proposing a major federal action significantly impacting the environment to prepare an environmental impact statement ("EIS") to analyze potential impacts and alternatives. 42 U.S.C. § 4332(C). To determine whether an EIS is required, the agency typically first prepares an EA. 40 C.F.R. § 1501.4(b). An EA is a "concise public document" that "include[s] brief discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. §§ 1508.9(a), (b); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005).
Because NEPA does not contain a separate provision for judicial review, courts review an agency's compliance with NEPA under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706; 5 U.S.C. § 706(2)(A). Judicialreview of administrative agency decisions under the APA is based on the administrative record compiled by the agency - not on independent fact-finding by the district court. Camp v. Pitts, 411 US. 138, 142 (1973).
In reviewing an agency action under the APA, the Court must determine whether the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983).
Review under this standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. Id. Review is highly deferential to the agency's expertise and presumes the agency action to be valid. Arkansas v. Oklahoma, 503 U.S. 91, 112 (1992). The agency, however, must articulate a rational connection between the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made." Id.; see also Midwater Trawlers Co-op v. Dep't of Commerce, 282 F.3d 710, 716 (9th Cir. 2002). Thus, the reviewing court must lookat whether the decision considered all of the relevant factors or whether the decision was a clear error of judgment. Id.
A court's review under NEPA is limited to whether the agency "took a 'hard look' at the environmental impacts of a proposed action." Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1072 (9th Cir. 2010). A "hard look" under NEPA requires consideration of all foreseeable direct and indirect impacts. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002). A hard look should involve a discussion of adverse impacts that does not improperly minimize negative side effects. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1241 (9th Cir. 2005). "General statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided." Conservation Cong. v. Finely, 774 F.3d 611, 621 (9th Cir. 2014). Once the court is "satisfied that a proposing agency has taken a hard look at a decision's environmental consequences, [its] review is at an end." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affectthe outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the non-moving party. Id.
The moving party bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the opposing party will have the burden of proof at trial,...
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