Northern Plains Resource Council, Inc. v. United States Bureau of Land Management et al
Filing
58
OPINION AND ORDER, IT IS ORDERED that Northern Plains 33 MOTION for Summary Judgment is GRANTED as to Count IV of the Complaint for the reasons discussed above, but DENIED in every other aspect. BLM's and Signal Peak's 40 C ross MOTION for Summary Judgment are DENIED as to Count IV of the Complaint for the reasons discussed above, but GRANTED in every other aspect. This case is REMANDED back to the Interior Board of Land Appeals for consideration of Northern Plains' argument that BLM's discussion of alternatives in the EA is inadequate. Signed by Judge Susan P. Watters on 3/31/2016. (EMH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
FILED
MAR 3 1 Z016
Clerk, us District Court
District Of Montana
NORTHERN PLAINS RESOURCE
COUNCIL INC.,
CV 14-60-BLG-SPW
Billings
Plaintiff,
OPINION and ORDER
vs.
UNITED STATES BUREAU OF
LAND MANAGEMENT, UNITED
STATES DEPARTMENT OF THE
INTERIOR,
Defendants,
vs.
SIGNAL PEAK ENERGY, LLC,
Defendant Intervenor.
Plaintiff Northern Plains Resource Council ("Northern Plains") brought this
action challenging a decision by Defendants United States Bureau of Land
Management and the United States Department of the Interior (collectively
"BLM") to lease coal located in Montana's Bull Mountains to Defendant
Intervenor Signal Peak Energy, LLC ("Signal Peak"). Specifically, Northern
Plains challenges the environmental assessment and subsequent finding of no
1
significant impact issued by BLM. All parties have moved for summary judgment.
For reasons discussed below, the Court finds that BLM did not act arbitrarily or
capriciously when it opted to forgo an environmental impact statement. The Court
further finds in favor ofBLM and Signal Peak in regards to most of Northern
Plains' arguments regarding the adequacy of the environment assessment.
However, the Court finds that the Interior Board of Land Appeals erred by not
addressing one of Northern Plains' arguments made in the administrative process.
Therefore, the Court remands the case back to the Interior Board of Land Appeals
to consider that sole issue.
I. Background 1
The Bull Mountains are a mountain range located in south-central Montana
between Roundup and Billings. While the Bull Mountains are not as high as other
mountain ranges in Montana (the highest elevations in the Bull Mountains are
around 4700 feet), the terrain is rugged with pine-covered ridges and flat-topped
buttes with steep slopes. AR 150. Wildlife is diverse and plentiful in the Bull
Mountains, with mule deer and elk constituting the two most commonly observed
big game species. AR 149.
1
The following information is taken from the Revised Administrative Record
("AR") filed by BLM on April 27, 2015. (Doc. 31.) There are 152 documents in
the AR, and each page contains a Bates stamped number. When citing to the AR,
the Court will cite to the document number and pinpoint cite to the Bates stamped
number when necessary.
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Relative to the surrounding area, the Bull Mountains have an abundant water
supply. AR 150. At least 19 springs exist near Bull Mountain Mine No. 1
("Mine"). AR 151 . These springs supply water for livestock, wildlife, and
vegetation. AR 24 at 379. Some of the springs provide very high quality water
with low levels of dissolved solids. AR 13 at 229. Area ranchers consider this
high quality water to be crucial to their cattle operations. AR 13 at 229-230
(Declaration of Steve Charter); AR 34 at 2449-2453 (Comment by Ellen Pfister).
Coal has been mined commercially near the current Mine site in the Bull
Mountains since at least 1932. AR 24 at 326. Coal located in the Bull Mountains
has a higher quality than other regionally-produced coal, due to its high heat value
and low mercury content. AR 13 at 203-204. In the late 1980s, Meridian Minerals
Company ("Meridian") acquired the rights to mine coal in the area around what
would become the Mine. AR 24 at 326.
Soon after acquiring the rights, Meridian proposed a land swap with the
federal government. AR 137. In exchange for nearly 10,000 acres of "high-value
recreation and wildlife lands" located elsewhere in Montana, Meridian would
receive about 3,670 acres of federally owned coal in the Bull Mountains. AR 137
at 11356. In 1990, BLM completed a 349-page environmental impact statement
("EIS") to help decide whether to accept the proposed land swap (" 1990 EIS").
AR 137 at 11379. In the 1990 EIS, BLM analyzed both the proposed land swap
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and three alternatives. AR 137. BLM also looked at the environmental effects if
Meridian mined the coal. AR 13 7 at 11466-115 0 I.
Specifically, the 1990 EIS contains analysis of two underground mining
methods used to extract coal:(!) Room and pillar mining and (2) longwall mining.
AR 13 7 at 11467-11518. Room and pillar mining is the older method of
underground coal extraction and requires the creation of tunnels throughout a coal
seam. AR 109 at 3250. The result is a checkerboard effect of empty areas of
mined-out coal (the "rooms") and unmined "pillars" of coal. Id. The pillars are
necessary to keep the ceiling from collapsing on the miners. Id. Eventually, after
the mine is abandoned, the pillars can deteriorate and collapse. AR 109 at 32503251.
In contrast, longwall mining involves carving pillar-supported underground
"hallways" into a coal seam to allow workers and longwall mining machinery into
the seam. AR 109 at 3252. Machinery digs out coal as it moves along a path
across the seam. Id. A system of support covers the machinery to prevent the
mine's ceiling from collapsing on the machinery and the workers. Id. The support
accompanies the machinery as it moves down the seam. Id. When the support
moves, the unsupported ceiling collapses into the empty space formerly occupied
by the coal. Id. This downward movement of rock and debris can be reflected on
the surface as a "large subsidence trough." Id. The result is subsidence, which is
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defined as the "lowering of surface elevations over an underground mine caused by
loss of support and subsequent settling or caving of strata lying above the mine."
43 C.F.R. § 3480.0-5(a)(36). Because of subsidence, "[l]ongwall mining causes
surface property damage." AR 109 at 3248. The potential surface damage
includes "slope failure, surface cracking, and rock toppling." AR 24 at 495.
Subsidence could result in risk to grazing livestock and could affect the flow or
supply of water at wells and springs. AR 24 at 341, 343.
BLM stated in the 1990 EIS that "[s]ubsidence will definitely occur" due to
operations at the Mine. AR 137 at 11501. While the subsidence was expected to
be minor in areas of less than 40 feet of overburden, BLM predicted "major
impacts to topography" as a result oflongwall mining. AR 137 at 11402. BLM
also predicted that the resulting surface fissures and slope failure could alter
drainage patterns and change soil structure. Id. In regards to surface and
groundwater, BLM predicted that both longwall and room and pillar mining would
result in minimal impacts. AR 137 at 11403.
BLM estimated that room and pillar mining would result in the production
of0.5 million tons of coal per year from the Mine. AR 137 at 11467. In contrast,
longwall mining would increase production to an estimated 3.0 million tons per
year. AR 137 at 11468. BLM recommended accepting the proposed swap. AR
137 at 11358.
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Meridian next applied to the State of Montana for a mining permit to
develop the Mine as an underground coal mine. AR 117 at 3568. The relevant
state agency prepared an EIS to analyze Meridian's application ("1992 EIS"). AR
117. Montana granted the mining permit to Meridian in 1993. AR 24 at 319.
Signal Peak acquired the permit in 2008 and began employing longwall mining to
extract coal at the Mine in 2009. AR 24 at 326, 362.
As predicted in the 1990 EIS, areas of land overlying the Mine have
experienced surface damage as a result of longwall mining-caused subsidence. AR
13 at 226-230. An area rancher claims to have seen rocks that have been loosened
from steep slopes and toppled into valley floors. AR 13 at 226. Cracks, also
known as fissures, in the land have emerged, and the same rancher claims that the
bigger cracks range from 6 to 15 feet wide, and some of them are 20 feet deep. AR
13 at 228.
In 2008, Signal Peak applied to lease an additional 2,679.9 acres of federal
coal to extend the life of the Mine. AR 75. If awarded the lease, Signal Peak
could mine much more than the federal coal. Ownership of the area's land is in a
checkerboard pattern between federal, state, and private lands. AR 24 at 320.
Signal Peak could not economically mine coal on the state and private lands
without access through the federal coal reserves. AR 24 at 345. An estimated 61.4
million tons of federal coal are included in the lease. Id. Another 71.6 million tons
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of coal are contained on state and private property that would be accessible through
the federal lease. Id. The lease would prolong the Mine's productivity by an
estimated seven years. AR 24 at 491.
BLM prepared a draft environmental assessment ("EA") to analyze Signal
Peak's application for the lease. AR 62 at 2767. After reviewing the draft EA,
BLM initially believed that it would have to complete an EIS due to, in part, the
draft EA's references to the 1990 EIS or 1992 EIS. AR 62 at 2767-2769; AR 61.
BLM's notes also indicate that it initially believed the project would significantly
impact the environment, thereby necessitating an EIS. Id. Signal Peak disagreed
and suggested that an EA would be sufficient. AR 62 at 2770.
BLM ultimately agreed and issued the 211-page final EA in April 2011. AR
24. In the EA, BLM addressed the potential environmental impacts of granting the
lease. Id. The EA was tiered to several documents, including the 1990 EIS and
1992 EIS. AR 24 at 318-319. In addition to analyzing the effects of the proposed
action (granting the lease), BLM looked at only one alternative, which was not
granting the lease. AR 24 at 345.
After reviewing the EA, BLM issued a Finding of No Significant
Impact/Decision Record ("FONS!") on April 15, 2011. AR 23. BLM concluded
that granting Signal Peak's application for the lease "would not have significant
environmental impacts" and would not "constitute a major federal action having
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significant effect on the human environment." AR 23 at 305. Accordingly, BLM
determined that an EIS was not required. Id. BLM opted to follow the EA's
proposed action and offer the federal coal for lease. Id. The Court will later
discuss the EA's and the FONSI's details.
Northern Plains appealed the FONS I to the Interior Board of Land Appeals
("Board"). AR 21. In its briefbefore the Board, Northern Plains essentially raised
the same issues that are presently before this Court. AR 13 at 189. Northern
Plains argued that BLM erred by: (1) Failing to prepare an EIS; (2) Relying on
"stale, out-of-date data and information;" (3) Failing to analyze important data; (4)
Failing to analyze the cumulative effects; and (5) Failing to consider other
reasonable alternatives. Id. In its alternatives argument, Northern Plains argued
that the EA did not take a hard enough look at the no action alternative. AR 13 at
208-209. Northern Plains also contended that BLM should have considered
additional alternatives, such as:
[L ]ease stipulations that the winning bid-holder and lessee be required
to mitigate subsidence damage, lease stipulations that any degradation
to water quality be restored to the same water quality as existed premining, requirement of bonding measures to protect landowners and
the public, making the lease seam-specific, and examination of
alternative mining techniques to long-wall mining such as the room
and pillar mining (in which the pillars keep the overburden from
collapsing, eliminating or lessening subsidence issues).
AR 13 at 209.
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The Board affirmed the BLM's FONSI on October 22, 2012. AR l. In its
decision, the Board concluded that BLM adequately considered the likely
environmental impacts caused by the Mine's expansion. AR l at 5-6. The Board
also concluded that BLM did not err by tiering the EA to the 1990 EIS and 1992
EIS. AR 1 at 6. The Board also found that BLM adequately considered the
cumulative impacts of leasing the federal coal. AR 1 at 8-10. However, the Board
did not address or mention Northern Plains' argument that BLM did not consider
an adequate range of alternatives.
Northern Plains filed the instant action against BLM on May 14, 2014, and
allege several violations of the National Environmental Policy Act ("NEPA").
Northern Plains asks this Court to overturn the Board's decision affirming BLM
and "issue a mandatory injunction ordering BLM to prepare an adequate NEPA
document." (Doc. 1 at 22.) Northern Plains also requests an order voiding Signal
Peak's lease. (Id.) This Court allowed Signal Peak to intervene as a defendant
(Doc. 14.)
On June 30, 2015, Northern Plains moved for summary judgment. In
support of the motion, Northern Plains advances the following arguments: (1)
BLM erred by not preparing an EIS; (2) Even assuming that an EIS was not
required, the EA prepared by BLM is inadequate; (3) BLM failed to adequately
assess cumulative impacts; and (4) The Board and BLM erred by not considering a
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reasonable range of alternatives. BLM and Signal Peak filed cross-motions for
summary judgment.
II. Standards
A. Summary Judgment Standard
Summary judgment is proper when "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is "genuine" only ifthere is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is "material" only if it could affect the outcome of the suit
under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
( 1986). "In reviewing an administrative agency decision, summary judgment is an
appropriate mechanism for deciding the legal question of whether the agency could
reasonably have found the facts as it did." City & Cty. of San Francisco v. United
States, 130 F.3d 873, 877 (9th Cir. 1997) (internal citation omitted).
B. Standard of Review Under the Administrative Procedure Act
The parties agree that this Court is reviewing the Board's decision under the
Administrative Procedure Act ("APA"). Under the APA, a reviewing court should
set aside an agency decision ifthe decision is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
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Although this review is "searching and careful," the arbitrary and capricious
standard is narrow, and this Court cannot substitute its own judgment for that of
the agency. In Defense ofAnimals v. US. Dept. ofInterior, 751F.3d1054, 1061
(9th Cir. 2014). An agency's decision is arbitrary and capricious ifit fails to
consider important aspects of the issue before it, if it supports the decision with
explanations contrary to the evidence, or if its decision is either inherently
implausible or contrary to governing law. Id.
III. Whether an EIS was required
Northern Plains argues than an EA was insufficient to analyze Signal Peak's
application. Instead, Northern Plains contends that both the BLM's NEPA
Handbook and the "significance factors" require that BLM prepare an EIS. BLM
and Signal Peak argue that the NEPA Handbook does not require an EIS in a
leasing decision and that BLM and the Board reasonably concluded that the
"significance factors" did not compel an EIS. The Court agrees with BLM and
Signal Peak.
NEPA reflects the federal policy "to use all practicable means and
measures ... to create and maintain conditions under which man and nature can exist
in productive harmony, and fulfill the social, economic, and other requirements of
present and future generations of Americans." 42 U.S.C. § 433 l(a). NEPA does
not create any substantive requirements. Sierra Forest Legacy v. Sherman, 646
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F.3d 1161, 1177 (9th Cir. 2011). "Rather, NEPA imposes only procedural
requirements on federal agencies with a particular focus on requiring agencies to
undertake analyses of the environmental impact of their proposals and actions."
Dep't ofTransp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004). By forcing an
agency to focus on possible "environmental consequences of a proposed project,
NEPA ensures that important effects will not be overlooked or underestimated only
to be discovered after resources have been committed or the die otherwise cast."
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
NEPA requires agencies to produce an EIS for "major Federal actions
significantly affecting the quality of the human environment ... " 42 U.S.C. §
4332(C). The agency may prepare an EA to determine whether the proposed
action is significant enough to require the production of an EIS. 40 C.F.R. §§
1501.4(b), (c); Pub. Citizen, 541 U.S. at 757. 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).
The agency reviews the EA to determine whether the proposed action
"significantly" affects the environment, thereby necessitating an EIS. Pub. Citizen,
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541 U.S. at 757. An EIS is required when there are "substantial questions whether
a project may have a significant effect on the environment." Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal
quotation omitted). To determine whether the environmental effects are
"significant," the agency looks to the regulations propounded by the Council on
Environmental Quality ("CEQ"). Ocean Advocates v. U.S. Army Corps of
Engineers, 402 F.3d 846, 865 (9th Cir. 2005). The CEQ determined that
significance requires the consideration of both "context and intensity." Id; 40
C.F.R. § 1508.27. Ten "significance factors" are used to evaluate intensity:
(1) Impacts that may be both beneficial and adverse. A significant
effect may exist even if the Federal agency believes that on balance
the effect will be beneficial.
(2) The degree to which the proposed action affects public health or
safety.
(3) Unique characteristics of the geographic area such as proximity to
historic or cultural resources, park lands, prime farmlands, wetlands,
wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for
future actions with significant effects or represents a decision in
principle about a future consideration.
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(7) Whether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance exists
if it is reasonable to anticipate a cumulatively significant impact on
the environment. Significance cannot be avoided by terming an action
temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts,
sites, highways, structures, or objects listed in or eligible for listing in
the National Register of Historic Places or may cause loss or
destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has been
determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local
law or requirements imposed for the protection of the environment.
40 C.F.R. § 1508.27(b). The presence of"one of these factors may be sufficient to
require preparation of an EIS in appropriate circumstances." Ocean Advocates,
402 F.3d at 865.
"If, in light of the EA, the agency determines that its action will significantly
affect the environment, then an EIS must be prepared; if not, then the agency
issues a FONSI." Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000); 40
C.F.R. § 1501.4(e)(l). The FONSI must briefly present the reasons why the
agency believes an EIS is unnecessary. 40 C.F.R. § 1508.13. This "convincing
statement of reasons" must adequately explain why the project's impacts are
insignificant. Metcalf, 214 F.3d at 1142.
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A reviewing court must uphold the decision to issue a FONSI instead of
preparing an EIS unless the agency's decision is arbitrary and capricious. City of
Las Vegas, N
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