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Southern Utah Wilderness Alliance v. Office of Surface Mining Reclamation and Enforcement

September 23, 2010

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.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No.2:07-CV-678-DAK).

The opinion of the court was delivered by: Tymkovich, Circuit Judge.

PUBLISH

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.

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)*fn1 , 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.*fn2

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."*fn3 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 court's decision." N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001).

A. Jurisdiction

Before turning to the substance of SUWA's appeal, we must first address our own jurisdiction to review the agency action-specifically, whether SUWA has standing to bring this suit. The defendants do not seriously contest standing, but their abdication is not binding on our obligation to do so.

We review the question of SUWA's standing de novo. See Stewart v. Kempthorne, 554 F.3d 1245, 1254 (10th Cir. 2009). The doctrine of standing has been developed to ensure that federal courts only issue judgments regarding the "Cases" and "Controversies" that the Constitution gives them jurisdiction to hear. U.S. Const. art. III, § 2; see Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1144 (10th Cir. 2010) (en banc) ("One essential and unchanging part of the case-or-controversy requirement is the concept that the plaintiff must have standing.") (internal quotation marks omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

To show that he has Article III standing, a plaintiff must demonstrate three elements: injury in fact, traceability, and redressability. See id. To demonstrate an injury in fact, a plaintiff must show he has suffered "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. The element of traceability requires the plaintiff to show that the defendant is responsible for the injury, rather than some other party not before the court. See id. Finally, the requirement of redressability ensures that the injury can likely be ameliorated by a favorable decision. See id.

Considering first the challenged BLM decision-i.e., that the ten-year diligent development period has not expired-SUWA's injury results from UEI's ability to commence mining operations. SUWA maintains the mining operations would impair the ability of its members to continue enjoyment of the aesthetic and scientific benefits provided by the land in question. When, as in this APA action, "the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish." Lujan, 504 U.S. at 562 (internal quotation marks omitted). Nevertheless, "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for the purpose of standing." Id. at 562--63 (citing Sierra Club v. Morton, 405 U.S. 727, 734 (1972)); see also Sierra Club v. U.S. Dep't of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002) (environmental group has standing to challenge government action posing a threat to areas used for "recreational and educational purposes"); Piney Run Preservation Ass'n v. County Comm'rs, 268 F.3d 255, 263 (4th Cir. 2001) ("In an environmental case . . . a plaintiff need only show that he used the affected area, and that he is an individual for whom the aesthetic and recreational values of the area are lessened by the defendant's activity.") (internal punctuation omitted).

SUWA's amended complaint states that its members use the land affected by these permits for various purposes-scientific study, hunting, aesthetic appreciation, sightseeing, and solitude. They claim that the proposed mining operations would impair many, if not all, of these uses. This is the type of injury that has often been used to demonstrate standing, so we conclude that SUWA meets the first prong of the standing inquiry.

The other two prongs of our standing inquiry are also met. As to traceability, UEI could not engage in mining activity if its federal lease had expired. Therefore, the decision by BLM that UEI's federal leases are still valid directly leads to the injury of which SUWA complains. And a favorable court decision-for example, that UEI's coal leases have been terminated due to the expiration of the diligent development period-would result in UEI being unable to pursue mining operations, thus redressing SUWA's injury. Therefore SUWA has standing to challenge the BLM decision.*fn4

As to SUWA's standing to challenge the OSM failure to prepare a new recommendation regarding UEI's mining plan, the question is much closer. OSM is not the final decision-maker in this instance, but instead only offers a recommendation to the Secretary of the Department of the Interior. See 30 C.F.R. § 746.13 ("OSM shall prepare and submit to the Secretary a decision document recommending approval, disapproval or conditional approval of the mining plan.") (emphasis added). Because of this, the most SUWA can allege is that OSM failed to carry out its procedural responsibilities and duties, not that it directly acted to harm the plaintiff. The district court concluded SUWA would be unable to prove any of the three requirements for standing on this claim. We disagree.

When a plaintiff raises "only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws," he does not have standing. Lujan, 504 U.S. at 573. Therefore, SUWA would not have standing to force OSM to conform to its statutory duties, if it was claiming no other injury than that the proffered duties had not been followed. But standing exists when a plaintiff can show that "the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Utah v. Babbitt, 137 F.3d 1193, 1216 (10th Cir. 1998) (emphasis added) (quoting Lujan, 504 U.S. at 573 n.8). Our cases find standing where plaintiffs properly allege a procedural violation affecting a concrete interest because the "injury results not from the agency's decision, but from the agency's uninformed decisionmaking." Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 452 (10th Cir. 1996).

A recommendation from OSM, while not binding on the Secretary, is critical to the decision making process. It is meant to ensure that sufficient information is before the Department so it can make an informed decision about the ultimate issue: whether to approve the mining plan.*fn5 Although OSM does not make the final decision, its recommendation is a necessary part of the Secretary's decision to allow the commencement of mining operations. This is the type of procedure put in place to "protect some threatened concrete interest," Lujan, 504 at 573 n.8. In this case, the threatened interest is SUWA's interest in protecting the Lila Canyon area. And that interest is impaired by the alleged procedural misstep.

Nor is SUWA required, for purposes of standing, to demonstrate that the ultimate decision would necessarily be different. Standing exists even if the recommendation would not have been different, and even though the Secretary is not bound to follow the recommendation, even if it had changed. See Summers v. Earth Island Inst., 129 S.Ct. 1142, 1151 (2009) ("[S]tanding existed . . . despite the possibility that . . . [plaintiff's involvement pursuant to a successful lawsuit] would not be successful in persuading the Forest Service to avoid impairment of [the plaintiff's] concrete interests.").

Because "the agency's uninformed decisionmaking," Committee to Save the Rio Hondo, 102 F.3d at 452, injured SUWA's concrete interests, the fact that OSM refused to issue an updated recommendation also satisfies the causation and redressability prongs-OSM's recalcitrance caused an allegedly uninformed decision, and this could be redressed by a favorable court decision, even if the Secretary's ultimate decision was the same. See Babbitt, 137 F.3d at 1216 n.37 (in the context of procedural rights, "the ...


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