WildEarth Guardians v. Klein et al

Filing 129

FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED that Defendants' and Defendant-Intervenors' summary judgment motions (ECF 97 , 93 , and 89 ) be DENIED, and Plaintiffs' summary judgment motions (ECF 76 and 78 ) be GRANTED in part, as set forth herein. Signed by Magistrate Judge Carolyn S Ostby on 10/23/2015. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WILDEARTH GUARDIANS,

CV 14-13-BLG-SPW-CSO

Plaintiff,
vs.
U.S. OFFICE OF SURFACE MINING,
RECLAMATION AND
ENFORCEMENT, AL KLEIN, in his
official capacity as Western Regional
Director of the Office of Surface Mining
Reclamation and Enforcement, Denver,
Colorado, and SALLY JEWELL, in her
capacity as U.S. Secretary of the
Interior,

FINDINGS AND
RECOMENDATIONS

Defendants,
and
STATE OF MONTANA, SPRING
CREEK COAL LLC, NATIONAL
MINING ASSOCIATION,
Defendant-Intervenors.
NORTHERN PLAINS RESOURCE
COUNCIL INC., WESTERN
ORGANIZATION OF RESOURCE
COUNCILS INC,
Plaintiffs,
vs.
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CV 14-103-BLG-SPW-CSO

SALLY JEWELL, in her official
capacity as U.S. Secretary of the
Interior, U.S. OFFICE OF SURFACE
MINING RECLAMATION AND
ENFORCEMENT,
and

Defendants,

STATE OF MONTANA, SPRING
CREEK COAL LLC, NATIONAL
MINING ASSOCIATION,
Defendant-Intervenors.
This action arises from the Office of Surface Mining Reclamation
and Enforcement’s (“OSM”) approval of a mining plan modification for
the Spring Creek Mine in Montana. This agency decision gave rise to
two actions in this court: (1) Northern Plains Resource Council et al. v.
Jewell et al. (“NPRC”), No. CV-14-103-BLG-SPW-CSO (D. Mont. Aug.
14, 2014), and (2) WildEarth Guardians v. U.S. Office of Surface Mining,
Reclamation and Enforcement, et al., No. CV 14-13-BLG-SPW-CSO (D.
Mont. Feb. 27, 2013). These actions have been consolidated with the
consent of the parties. ECF 70.
The following motions are pending:
(1) Motion for Summary Judgment filed by Plaintiffs Northern
Plains Resource Council, Inc. and Western Organization of
Resource Councils, Inc. (collectively “NPRC”) (ECF 76),
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(2) Motion for Summary Judgment filed by Plaintiff WildEarth
Guardians (“WildEarth”) (ECF 78),
(3) Motion for Summary Judgment filed by Defendant-Intervenor
State of Montana (“State”) (ECF 89),
(4) Cross Motion for Summary Judgment filed by DefendantIntervenors Spring Creek Coal LLC (“SCC”) and the National
Mining Association (ECF 93), and
(5)
I.

Federal Defendant’s1 Cross-Motion for Summary Judgment
(ECF 97).

BACKGROUND
A.

PROCEDURAL

WildEarth’s claims against Federal Defendants were first asserted
in the District of Colorado, along with challenges to other mine plan
decisions regarding other mines in various states. The United States
District Court for the District of Colorado severed the claims related to
the Spring Creek Mine and transferred them to this Court on February
10, 2014. ECF 32. Spring Creek Coal LLC, the National Mining

The Federal Defendants named in these two actions include: U.S.
Office of Surface Mining, Reclamation and Enforcement; Al Klein, in his
official capacity as Western Regional Director of the Office of Surface
Mining Reclamation and Enforcement; and Sally Jewell, in her capacity
as U.S. Secretary of the Interior.
1

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Association, and the State of Montana moved to intervene. Their
motions were granted by this Court. ECF 49, 58, 60.
Following briefing of the pending summary judgment motions, the
Court conducted a hearing on the motions. ECF 120. At the conclusion
of the hearing, the court agreed to allow the parties 60 days to attempt
settlement. This period was later extended at the request of the parties.
ECF 126. Having been advised that settlement attempts were
unsuccessful (ECF 127), the Court enters these Findings and
Recommendations to the presiding judge, rather than endorsing
additional delay through further briefing or hearing.
B.

FACTS

The Spring Creek Mine is a surface coal mine located in Big Horn
County, Montana. It is situated in the northwest portion of Montana’s
Powder River Basin, which contains large reserves of fossil fuels
including coal. ECF 97-2 at 2. Mining operations began at the Spring
Creek Mine in 1980. ECF 97-3 at 4. Approximately two hundred and
eighty (280) people are now employed at the mine. Tr. of Hearing (ECF
123) (“Tr.”) at 106.

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In 2005, SCC2 filed an application to lease an additional 1207.5
acres of federal coal in order to extend the life of the Spring Creek Mine.
SPRING CREEK_000027, (“AR”) et seq. 3 After determining that the
lease application met the regulatory requirements, the Bureau of Land
Management (“BLM”) prepared an Environmental Assessment (“EA”),
designating the additional tracts as case file number MTM 94378. OSM
was a cooperating agency in completing this EA. AR 16. After
completing the EA, the BLM issued the lease to SCC, effective December
1, 2007. AR 5360–5362. With respect to additional mining operations,
BLM’s EA explained:
The BLM does not authorize mining operations by
issuing a lease. After a lease has been issued but
prior to mine development, the lessee must file a
permit application package with the MDEQ [Montana
Department of Environmental Quality] and
Office of Surface Mining Reclamation and
Enforcement (OSM) for a surface mining
permit and approval of the Mineral Leasing Act of
The Spring Creek Mine is owned and operated by Spring Creek
Coal LLC, which is a wholly owned subsidiary of NERCO Coal LLC. The
stock of NERCO Coal LLC is ultimately held by Cloud Peak Energy, Inc.
(“Cloud Peak”). Spring Creek Coal LLC was formally known as Spring
Creek Coal Company. ECF 97-3 at 4–5.
3 Federal Defendants have produced the Administrative Record
(“AR”), which has been Bates stamped SPRING CREEK_000001 through
SPRING CREEK_005625, with copies provided to the Court and all
counsel of record. When referring to the AR, the Court will cite to the
Bates stamped pages.
2

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1920 (MLA) mining plan. An analysis of a
detailed site-specific mining and reclamation plan
occurs at that time.
AR 27.
Accordingly, in 2008, SCC submitted a permit application to
extend coal mining onto this lease. ECF 95 at 4. Spring Creek revised
the permit application several times in response to comments from
MDEQ. Id. MDEQ approved the permit to expand the Spring Creek
Mine on June 23, 2011. Id. at 5.
On June 5, 2012, OSM issued a one-page Finding of No Significant
Impact for the mining plan modification allowing recovery of coal from
Federal Lease MTM94378. The reasons for this finding were stated in
one sentence, without further explanation or elaboration:
The finding of no significant impact is based on the attached
Environmental Assessment: Environmental Assessment for Spring
Creek Coal Lease by Application, MTM,94378 (November 2006)
prepared by the Bureau of Land Management with the MDEQ and
OSM as cooperating agencies which has been independently
evaluated by OSM and determined to assess the environmental
impacts of the proposed action adequately and accurately and to
provide sufficient evidence and analysis for this finding of no
significant impact.
AR 16. On June 12, 2012, the OSM Regional Director recommended
that the OSM Director approve the mining plan modification. AR 4–11.
With respect to the environmental analysis, this document stated:
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I have determined that approval of this mining plan modification
will not have a significant impact on the quality of the human
environment. The environmental analysis entitled
ENVIRONMENTAL ASSESSMENT FOR SPRING CREEK COAL
LEASE MODIFICATION MTM94378 (November 2006) prepared
by BLM with OSM as a cooperating agency and other
environmental documents noted in the Finding of No Significant
Impact (FONSI), describe the impacts that may result from
approval of this mining plan modification and its alternatives.
AR 10. Despite the representation above, no “environmental documents”
other than the 2006 EA were noted in the 2012 FONSI.
On June 26, 2012, the Director of OSM recommended to the Acting
Assistant Secretary for Land and Minerals Management that the
proposed mining plan modification be approved. AR 3. On June 27,
2012, the Assistant Secretary of the Interior approved the mining plan
modification. AR 191–198.
The mining plan amendment extended surface coal mining
operations onto federal lease MTM 94378 for the first time. The
expansion: (1) increases the permit area by 2,042 acres, to a total of
9,103 acres; (2) increases surface disturbance at the mine by 1,224 acres;
(3) increases the number of acres of federal coal mined to 1,118; (4) adds
an additional 117 million tons of federal coal; and (5) extends the mine’s
life by an additional 10.9 years, through 2022. See AR 8; ECF 91 at 6, 97
at 14–15.
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II.

PARTIES’ ARGUMENTS
Collectively, the Plaintiffs argue that the approval of the Mining

Plan Amendment violated the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 701 et seq., and the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321 et seq., because OSM failed to provide
notice of its FONSI to the public and it failed to take the requisite hard
look as required by NEPA. ECF 76-1 at 8; ECF 78-1 at 9.
More specifically, NPRC argues that: (1) the U.S. Secretary of the
Interior (“Secretary”) failed to provide public notice of the decision to
approve the mining plan amendment and failed to provide an
opportunity for public participation in the NEPA process; and (2) the
Secretary failed to take the required “hard look” at the impacts of the
mining plan expansion to land and water resources by authorizing the
mine expansion in light of the mine’s failure to achieve successful,
contemporaneous reclamation in the past, and by relying on an outdated
EA in approving the expansion. ECF 22–34.
WildEarth argues that OSM failed to provide notice of its decision
or an opportunity for public involvement in the NEPA process, ECF 78-1
at 17–21, and failed to take a hard look at the direct impacts to air
quality from mine expansion by: (1) not assessing whether any changes
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affecting air quality had occurred in the intervening years, id. at 22–25;
(2) not analyzing air quality impacts under NEPA distinct from the
State, id. at 25–27; and (3) failing to supplement the EA’s air quality
analysis to consider new standards from PM2.5 emissions, 4 ozone
emissions, and nitrogen dioxide (“NO2”) emissions, id. at 27–32. Finally,
WildEarth argues that OSM failed to take a hard look at indirect
impacts to air quality from coal combustion. Id. at 32–35.
In support of their motion for summary judgment, the Federal
Defendants argue that Plaintiffs’ air quality and reclamation claims are
waived because WildEarth did not alert the agency to its air quality
concerns and NPRC did not alert the agency to its concerns until filing
this action. ECF 97 at 20–24. They argue that Plaintiffs could have
taken steps to participate in the proceedings but, by failing to do so, they
waived their air quality and reclamation claims. Id. at 24.
Next, Federal Defendants argue that Plaintiffs’ claims lack merit
because: (1) Federal Defendants complied with NEPA’s public
participation requirements because there was no obligation to circulate
its FONSI for comments and circumstances here do not trigger any
requirement to formally notify the public, id. at 24–28, 44–46; (2) NEPA
4

Particulate matter less than 10 microns in diameter (“PM2.5 ”).
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does not require analysis of combustion impacts because it is too
speculative and beyond the scope of the agency’s responsibilities, id. at
28–33; (3) OSM’s analysis of air quality impacts is adequate, id. at 33–
39; and (4) the EA’s consideration of reclamation issues was adequate
and Plaintiffs misstate actual progress of reclamation and failed to
identify any reclamation violations. Id. at 39–42.
Defendant-Intervenors add that: (1) WildEarth fails to recognize
that OSM’s obligations are circumscribed by other legal requirements
governing the development of federally leased coal, id. at 26–27; and (2)
a change in environmental laws, such as National Ambient Air Quality
Standards (“NAAQS”), does not require a new NEPA review because the
standards do not constitute new information, nor do they provide a
seriously different picture of the environmental landscape, as would
require supplementation. Id. at 33.
Regarding Plaintiffs’ contemporaneous reclamation argument, the
State argues that bond release status is not an accurate indicator for
evaluating the success of contemporaneous reclamation, nor do Plaintiffs
correctly state how such reclamation is measured, and that the EA
thoroughly considered the impacts of reclamation. ECF 89, 14–17.

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In response, WildEarth argues that it did not waive its claims
because there are no statutory exhaustion requirements in NEPA and
because OSM provided no opportunity for participation in its NEPA
process. ECF 100 at 22–24.
NPRC argues that the Secretary’s decision to shut out impacted
local communities and then suggest that the same communities have
“waived” their ability to raise and protest legitimate concerns is
capricious and arbitrary. ECF 101 at 9.
III. STANDARD OF REVIEW
The Administrative Procedure Act (“APA”) provides the authority
for a court’s review of agency decisions under NEPA. 5 U.S.C. §§ 701 et
seq.; Barnes v. U.S. Dept. of Transp., 655 F.3d 1124, 1132 (9th Cir.
2011). Under the APA, a court may set aside an agency action only if it
is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Barnes, 655 F.3d at 1132 (quoting 5 U.S.C. §
706(2)(A)). In APA actions, the court’s review is based on the agency’s
administrative record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
883-84 (1990).
Under this standard, the court’s role is to determine whether the
agency’s record supports the agency’s decision as a matter of law. An
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agency decision is arbitrary and capricious where it “relied on factors
Congress did not intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an explanation that runs
counter to the evidence before the agency [at the time of its decision] or
is so implausible that it could not be ascribed to a difference in view of
the product of agency expertise.” Lands Council v. McNair, 537 F.3d
981, 987 (9th Cir. 2008).
A review of an agency’s decision not to prepare an EIS requires a
court to “determine whether the agency has taken a ‘hard look’ at the
consequences of its actions, ‘based [its decision] on consideration of the
relevant factors,’ and provided a ‘convincing statement of reasons to
explain why a project’s impacts are insignificant.’’ Id. (quoting Envtl.
Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir.2006)).
IV.

DISCUSSION
NEPA is “our basic national charter for protection of the

environment.” 40 C.F.R. § 1500.1(a). It establishes “a ‘national policy
[to] encourage productive and enjoyable harmony between man and his
environment,’ and was intended to reduce or eliminate environmental
damage and promote ‘the understanding of the ecological systems and

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natural resources important to’ the United States.” Dept. of Transp. v.
Public Citizen, 541 U.S. 752, 756–757 (2004) (quoting 42 U.S.C. § 4321).
NEPA is a procedural statute that does not “mandate particular
results but simply provides the necessary process to insure that federal
agencies take a hard look at the environmental consequences of their
actions.” High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 639–40
(9th Cir. 2004) (internal citations omitted); Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351 (1989) (NEPA “prohibits
uninformed—rather than unwise—agency action”). NEPA requires
government agencies to “consider every significant aspect of the
environmental impact of a proposed action.” Baltimore Gas & Elec. Co.
v. NRDC, 462 U.S. 87, 97 (1983). NEPA also requires that relevant
information be made available to the public so that they “may also play
a role in both the decision making process and the implementation of
that decision.” Robertson, 490 U.S. at 349.
While courts must “strictly interpret the procedural requirements
in NEPA and the CEQ [Counsel of Environmental Quality] regulations,”
Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001), courts
must “be mindful to defer to agency expertise, particularly with respect
to scientific matters within the purview of the agency.” Klamath–
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Siskiyou Wildlands Center v. Bureau of Land Mgt., 387 F.3d 989, 993
(9th Cir. 2004) (internal citations omitted.) The standard of review is
“highly deferential” and the courts must defer to an agency’s decision
that is “fully informed and well-considered”, being careful not to
substitute the court’s judgment for that of the agency experts. Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th
Cir. 1998). See also Greenpeace Action v. Franklin, 14 F.3d 1324, 1332
(9th Cir. 1993).
A.

APPLICABLE DOI STATUTES AND REGULATIONS

The Mineral Leasing Act authorizes the Secretary to manage the
leasing of public lands for developing deposits of coal and other minerals.
See generally 30 U.S.C. §§ 181-287; 42 U.S.C. §§ 1701-1787. Prior to
taking any action on a leasehold which might cause a significant
disturbance of the environment, a coal lessee must submit for the
Secretary’s approval an operation and reclamation plan. 30 U.S.C §
207(c).
The Surface Mining Control and Reclamation Act, 30 U.S.C. §§
1201 et seq., requires that environmental impacts from surface mining
be minimized and that mined lands be fully reclaimed. The Department

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of Interior has adopted comprehensive regulations to accomplish these
goals. See 30 C.F.R. §§ 700 et seq. Although the regulations
contemplate a system of cooperative federalism, the Secretary may not
delegate to any State authority to approve mining plans or modifications
thereto, nor may the Secretary delegate to any State the authority to
comply with NEPA. 30 C.F.R. § 745.13(b), (i). Even if a state has a
cooperative agreement with the Secretary regarding surface coal mining,
approval of a mining plan or a mining plan modification remains with
the Secretary and is not delegable. 30 U.S.C. § 1273(c) (“Nothing in this
subsection shall be construed as authorizing the Secretary to delegate to
the States his duty to approve mining plans on Federal Lands….”).
Prior to the Secretary’s decision on mining plan applications, OSM
prepares and submits a decision document recommending approval,
disapproval, or conditional approval of the mining plan. 30 C.F.R. §
746.13.
The Council of Environmental Quality (“CEQ”) regulations allow
the preparation of an EA, a more limited document than an EIS, if the
agency makes a finding of no significant impact. 40 C.F.R. § 1501.4(e).
The EA is to be a concise public document that briefly provides

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“sufficient evidence and analysis for determining whether to prepare an
[EIS] or a [FONSI].” 40 C.F.R. § 1508.9(a). A FONSI should briefly
describe why the action will not have a significant effect on the human
environment. It must include the environmental assessment or a
summary of it and must note any other documents related to it.
40 C.F.R. § 1508.13. See Public Citizen, 541 U.S. at 757–58. An EA and
associated FONSI must be made available to the affected public. 40
C.F.R. §§ 1501.4(e)(1), 1506.6(b); 43 C.F.R. § 46.305(c).
An agency may prepare an EA “to decide whether the
environmental impact of a proposed action is significant enough to
warrant preparation of an EIS.” Blue Mountains Biodiversity Project,
161 F.3d at 1212 (quoting 40 C.F.R. § 1508.9). EAs may “tier” to earlier
NEPA documents, but tiering does not eliminate the need to “summarize
the issues discussed in the broader statement and incorporate
discussions from the broader statement by reference,” concentrating “on
the issues specific to the subsequent action.” 40 C.F.R. §§ 1502.20,
1508.28. When existing environmental analyses prepared pursuant to
NEPA and CEQ regulations are used in their entirety, the “supporting
record must include an evaluation of whether new circumstances, new

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information or changes in the action or its impacts not previously
analyzed may result in significantly different environmental effects.” 43
C.F.R. § 46.120(c). See also Western Watersheds Project v. Lueders, 2015
WL 4773871 (D. Nev. Aug. 13, 2015) (holding EA sufficient where BLM
did not simply tier to previous plans, but also discussed “past, present,
and reasonably foreseeable future actions” in its EA and “implemented
specific mitigation methods to be utilized”). When using tiered
documents, the agency must “include a finding that the conditions and
environmental effects described in the broader NEPA document are still
valid or address any exceptions.” 43 C.F.R. § 46.140.
B.

FEDERAL DEFENDANTS FAILED TO GIVE
REQUIRED PUBLIC NOTICE

NEPA procedures ensure that the agency will “inform the public
that it has indeed considered environmental concerns in its decision
making process.” Baltimore Gas and Elec. Co., 462 U.S. at 97. CEQ
regulations require public involvement to the extent practicable in
preparing an EA. 40 C.F.R. § 1501.4(b). The Department of Interior’s
regulations require that a bureau or office within the Department
“notify the public of the availability of an environmental assessment and
any associated [FONSI] once they have been completed.” 43 C.F.R. §§
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46.30, 46.305(c). Although the Ninth Circuit has “not established a
minimum level of public comment and participation required by the
regulations governing the EA and FONSI process,” it has found that “a
complete failure to involve or even inform the public about an agency’s
preparation of an EA and a FONSI” violates these regulations. Citizens
for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 970 (9th Cir.
2003). “An agency, when preparing an EA, must provide the public
with sufficient environmental information, considered in the totality of
circumstances, to permit members of the public to weigh in with their
views and thus inform the agency decision-making process.” Bering
Strait Citizens for Responsible Resource Dev. v. U.S. Army Corps of
Engineers, 524 F.3d 938, 953 (9th Cir. 2008).
The administrative record here includes no suggestion of public
notice by the Federal Defendants of the FONSI. Although the Federal
Defendants argue that they placed the documents in a reading room in a
Denver high-rise office building (ECF 97 at 18), they acknowledge that
they gave the public no notice that the document had been placed there.
And, as counsel for the Federal Defendants acknowledged at the
hearing, there is no indication in the Administrative Record that the
FONSI actually was placed in a reading room in Denver. Tr. at 130.
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This contention is merely asserted, without citation, in the Defendants’
briefs. See ECF 97 at 18.
OSM made no effort to inform or involve the public in its decisions
at issue. No notice was provided to the public regarding the existence of
the FONSI, nor any notice indicating that it was placed in a reading
room for public review. Under the applicable standards, the Court finds
that this complete lack of notice violates the public participation and
notice provisions of NEPA, and thus the Court recommends that
Plaintiffs’ motions be granted based on a lack of public notice.
C.

FEDERAL DEFENDANTS FAILED TO TAKE THE
REQUIRED “HARD LOOK”

As noted, if an agency decides that an EIS is not necessary based
on an EA, the agency must issue a FONSI to briefly present the reasons
why the proposed agency action will not have a significant impact on the
environment. Public Citizen, 541 U.S. at 757–758. In reviewing a
decision not to prepare an EIS, courts determine, under the arbitrary
and capricious standard, “‘whether the agency has taken a ‘hard look’ at
the consequences of its actions, based [its decision] on a consideration of
the relevant factors, and provided a convincing statement of reasons to
explain why a project’s impacts are insignificant.’ ” In Def. of Animals,
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Dreamcatcher Wild Horse and Burro Sanctuary v. U.S. Dept. of Int., 751
F.3d 1054, 1068 (9th Cir. 2014) (quoting Envtl. Prot. Info. Ctr., 451 F.3d
at 1009).
Plaintiffs argue that OSM failed to analyze the mine expansion’s
effects on air quality, coal combustion, or reclamation. Because the
FONSI itself fails to explain how OSM, in 2012, gave a hard look at the
consequences of approving the mining plan amendment, the Court must
agree. The FONSI, without any elaboration or explanation, simply
states only the conclusion that it is based on the 2006 EA, which “has
been independently evaluated by OSM and determined to assess the
environmental impacts of the proposed action adequately and accurately
and to provide sufficient evidence and analysis for this finding of no
significant impact.” AR 16. It does not explain, for example, why a sixyear-old document can be exclusively relied upon in this regard,
particularly when that earlier document expressly stated that it was not
analyzing site-specific mining or reclamation plans. See supra at 4-5.
Applying the applicable standards, the Court concludes that such
conclusory statements do not comply with governing laws and
regulations summarized above. Although the 2006 EA was attached to
the FONSI, there is no indication as to why and how an EA created
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before the mining plan amendment application was filed properly
analyzes its effects. Based on the lack of the required non-delegable
environmental analysis in the NEPA documents at issue here, the Court
recommends that Plaintiffs’ motions be granted to the extent that they
argue OSM failed to take a hard look under NEPA at their
recommended approval of the SCC mining plan amendment.
D.

WAIVER

Defendants and Intervenors argue that Plaintiffs’ did not alert the
agency to its concerns early enough to provide a meaningful opportunity
to rectify the alleged violations. ECF 97 at 21; ECF 93-1 at 24; ECF 89
at 18.
In Department of Transportation v. Public Citizen, the Court
highlighted the general principle that anyone challenging an agency’s
compliance with NEPA “must ‘structure their participation so that it . . .
alerts the agency to the [parties’] position and contentions’ in order to
allow the agency to give the issue meaningful consideration.” 541 U.S. at
764 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 553 (1978)). The Ninth Circuit,
however, has “declined to adopt a broad rule which would require
participation in agency proceedings as a condition precedent to seeking
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judicial review of an agency decision.” ‘Ilio‘ulaokalani Coalition v.
Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006) (internal quotations
omitted). In ‘Illio‘ulaokalani Coalition, the court emphasizes the
primary responsibility for NEPA compliance remains with the agency
and that “an EA’s or EIS’ flaws might be so obvious that there is no need
for a commentator to point them out specifically in order to preserve its
ability to challenge a proposed action.” Id. (quoting Public Citizen, 541
U.S. at 765).
Here, Plaintiffs could not waive their objections where the Federal
Defendants failed to inform the public of its NEPA process. Though the
Plaintiffs’ arguments, if made at an earlier stage of the proceedings to
either the State or to BLM, might have alerted OSM to their concerns,
Plaintiffs cannot have waived claims against these Federal Defendants
that they were not able to bring earlier due to a lack of public notice.
Thus, the Court recommends that the Defendants’ waiver argument be
denied.
E.

REMEDY

Having found Federal Defendants in violation of NEPA, it is
necessary to determine the appropriate remedy. The Plaintiffs’
Complaints each request the Court to vacate the mining plan approval
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pending Federal Defendants’ compliance with NEPA. ECF 40 at 19–21;
NPRC, No. CV-14-103-BLG-SPW-CSO, ECF 1. SCC is prohibited from
operating without a mining plan approval, so mine operations would
have to be suspended pending NEPA compliance.5
While vacating the mining plan approval is an available remedy
under the APA, a court is not required to vacate every unlawful agency
action. Natl. Wildlife Federation v. Espy, 45 F.3d 1337, 1343 (9th Cir.
1995). Because a remedy is controlled by principles of equity, a court
may remand without vacatur to allow the agency action to remain in
force until the action can be considered or replaced. Humane Soc. of
U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). To determine
whether a procedurally invalid agency decision should be left in place or
vacated, the Ninth Circuit has found that courts should consider “how
serious the agency’s errors are and the disruptive consequences of an
interim change that may itself be changed.” California Communities
Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012) (internal
quotation omitted).

At the hearing, counsel for NPRC appeared to amend this position by
stating: “It is not the intention of my clients to shut down this mine
operation. Tr. at 119.
5

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The Secretary’s decision to approve the mining plan amendment at
issue here was the result of a long application process involving multiple
state and federal agencies. A vacatur at this point, seven years after the
initial application for the mining plan amendment was filed and three
years after its approval, would have detrimental consequences for SCC
and its employees, for the State of Montana, and for other agencies
involved in this process. See, e.g., Tr. at 106-109.

Not only production

at the mine, but also reclamation and remediation efforts, would come to
a halt. Additionally, a vacatur may result in duplication of efforts
regarding the State permitting process, which was accomplished in what
appears to be a correct and thorough manner, with proper notice.
Equity warrants a decision to allow the mining plan amendment
approval to remain in force, provided that Federal Defendants must
correct the errors in its NEPA process.
Based on the circumstances of this case, the Court recommends
that vacatur be deferred for a period of 180 days from the date of a final
order on the pending motions for summary judgment. The Court further
recommends that Federal Defendants, during this time period, be
required to correct the NEPA violations by preparing an updated
environmental assessment, taking a hard look at the direct and indirect
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environmental effects of the SSC mining plan amendment, and
complying with applicable public notice and participation requirements.
See Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin.,
538 F.3d 1172, 1225 (9th Cir. 2008) (“If … an EA is so procedurally
flawed that we cannot determine whether the proposed rule or project
may have a significant effect, the court should remand for the
preparation of a new EA”). See also Wildearth Guardians v. U.S. Office
of Surface Mining, Reclamation and Enforcement, et al., 2015 WL
2207834 (D. Colo. May 8, 2015) (remanding case to OSM to take a hard
looks at environmental effects of mining plan revision and to provide
public notice and opportunity for public involvement before reaching its
decisions).
The Court additionally recommends that Plaintiffs be awarded
reasonable attorney’s fees under the Equal Access to Justice Act, 28
U.S.C. § 2412, because there are no special circumstances here to make
such an award unjust, and because the position of the Federal
Defendants was not substantially justified.
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Defendants’

and Defendant-Intervenors’ summary judgment motions (ECF 97, 93,
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and 89) be DENIED, and Plaintiffs’ summary judgment motions (ECF
76 and 78) be GRANTED in part, as set forth herein.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve a
copy of the Findings and Recommendations of United States Magistrate
Judge upon the parties. The parties are advised that pursuant to 28
U.S.C. § 636, any objections to the findings and recommendations must
be filed with the Clerk of Court and copies served on opposing counsel
within fourteen (14) days after entry hereof, or objection is waived.
DATED this 23rd day of October, 2015.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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