Citizens for Clean Energy et al v. U.S. Department of the Interior et al

Filing 141

ORDER: Plaintiffs' Motion for Summary Judgment 97 and 99 in CV-17-42-GF-BMM; and 115 and 117 in CV-17-30-GF-BMM are GRANTED IN PART and DENIED IN PART. It is further ORDERED that Defendants' and Defendant-Intervenors' Cross-Mot ions for Summary Judgment 105 , 107 , 109 in CV-17-42-GF-BMM; and 123 , 125 , 127 in CV-17-30-GF-BMM are GRANTED IN PART and DENIED IN PART. Entry of judgment will follow the imposition of a remedy in accordance with the above Order. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 4/19/2019. Associated Cases: 4:17-cv-00030-BMM, 4:17-cv-00042-BMM (MMS)

Case 4:17-cv-00030-BMM Document 141 Filed 04/19/19 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CITIZENS FOR CLEAN ENERGY, et al.,
and
THE NORTHERN CHEYENNE TRIBE,

CV-17-30-GF-BMM

Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR, et al.,

ORDER

Federal Defendants,
and
STATE OF WYOMING, et al.,
Defendant-Intervenors.
STATE OF CALIFORNIA, et al.,

CV-17-42-GF-BMM
(Consolidated case)

Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR, et al.,
Federal Defendants,
and
STATE OF WYOMING, et al.,
Defendant-Intervenors.

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INTRODUCTION
The Court held a hearing on December 13, 2018, on cross-motions for
summary judgment filed in this consolidated action brought by the Center for
Biological Diversity, Citizens for Clean Energy, Defenders of Wildlife,
EcoCheyene, Montana Environmental Information Center, Sierra Club, the
Northern Cheyenne Tribe, and WildEarth Guardians (collectively “Organizational
Plaintiffs”), State of California, State of Washington, and the State of New Mexico
(collectively “State Plaintiffs”), and by Defendants Secretary of Interior Ryan
Zinke, the U.S. Department of Interior, the U.S. Bureau of Land Management
(collectively “Federal Defendants”), the State of Wyoming, the State of Montana
(collectively “State Defendants”), and the National Mining Association
(collectively “Defendants”). For ease of reference the Court will use the generic
terms Plaintiffs and Defendants unless an issue requires the Court to identify a
specific party.
A. PROCEDURAL HISTORY
Plaintiffs filed their Complaint in CV-17-30-GF-BMM on March 29, 2017.
(Doc. 1.) The Court granted the State of Wyoming’s Motion to Intervene (Doc. 25)
on May 30, 2017. (Doc. 30.) The Court granted the parties Joint Motion to
Consolidate Cases (Doc. 33) on June 2, 2017. (Doc. 34.) The Court granted National
Mining Association’s Motion to Intervene (Doc. 37) on July 10, 2017. (Doc. 41.)
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The Court granted the State of Montana’s Motion to Intervene (Doc. 39) on July 10,
2017. (Doc. 42.)
State Plaintiffs filed their Motion for Summary Judgement on July 27, 2018.
(Doc. 115.) Organizational Plaintiffs filed their Motion for Summary Judgment on
July 27, 2018. (Doc. 117.) Federal Defendants filed their Cross Motion for
Summary Judgment on September 7, 2018. (Doc. 123.) State Defendants filed their
Cross Motion for Summary Judgment on September 19, 2018. (Doc. 125.)
National Mining Association filed its Cross Motion for Summary Judgment on
September 18, 2018. (Doc. 127.)
B. FACTUAL BACKGROUND
The United States Government owns an approximately 570-million-acre
coal mineral estate. (Doc. 118 at 12.) The Bureau of Land Management (“BLM”)
administers federal coal leases on the Government’s estate. (Doc. 118 at 12.) The
BLM possess broad discretion to lease public land for coal mining. (Doc. 118 at
12.) The BLM remains constrained, however, by the Federal Lands Policy and
Management Act (“FLMPA”) and the Mineral Leasing Act of 1920 (“MLA”) (as
amended by the Federal Coal Leasing Amendment Act). (Doc. 118 at 13.)
BLM currently manages 306 active federal coal leases in ten states. (Doc.
118 at 13.) The BLM managed leases account for an estimated 7.4 billion tons of
recoverable coal. (Doc. 118 at 13.) Over forty percent of the coal produced in the
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United States comes from federal land. AR-00004. Over eighty-five percent of coal
production on federal land in the United States occurs in the Powder River Basin
shared by Montana and Wyoming. Id. BLM possessed forty-four pending lease
and lease-modification applications in February of 2017. (Doc. 118 at 14.) BLM
last commenced a comprehensive environmental review for the federal coal
program in 1979. (Doc. 118 at 14.)
1. Secretarial Order 3338
Former Secretary of the Interior Sally Jewell issued Secretarial Order 3338
(hereafter “the Jewell Order”) on January 15, 2016. (Doc. 118 at 16.) The Jewell
Order directed BLM to prepare a programmatic environment impact statement
(“PEIS”) that addressed at a minimum the following issues:
(a) how, when, and where to lease coal; (b) fair return to the American
public for federal coal; (c) the climate change impacts of the federal coal
program, and how best to protect the public lands from climate change
impacts; (d) the externalities related to federal coal production, including
environmental and social impacts; (e) whether lease decision should
consider whether the coal would be for export; and (f) the degree to which
federal coal fulfills the energy needs of the United States.
(Doc. 118 at 17.) the Jewell Order imposed a moratorium on new coal leasing until
completion of the PEIS. (Doc. 118 at 16.)
2. Secretarial Order 3348
President Trump issued an executive order on March 28, 2017, commanding
Secretary of the Interior Ryan Zinke to “take all steps necessary and appropriate to
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amend or withdraw” the Jewell Order. (Doc. 118 at 20.) Secretary Zinke
subsequently issued Secretarial Order 3348 (hereafter “the Zinke Order”) on
March 29, 2017. AR-00001-2 The Zinke Order determined that “the public interest
is not served by halting the Federal coal program for an extended time[.]” Id. The
Zinke Order further reasoned that Federal Defendant’s consideration of potential
improvements to the coal leasing program did not require a PEIS. Id. The Zinke
Order lifted the moratorium and directed BLM to “process coal lease applications
and modifications expeditiously in accordance with regulations and guidance
existing before the issuance of” the Jewell Order. Id.
C. LEGAL BACKGROUND
A series of federal statutes governs resolution of these motions.
1. National Environmental Policy Act
The National Environmental Policy Act (“NEPA”) requires federal agencies
to “take a hard look” at the “environmental consequences” of their decisionmaking. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)
(internal citations omitted). The statute “does not mandate particular results.” Id.
NEPA instead “prescribes the necessary process” that agencies must follow to
identify and evaluate “adverse environmental effects of the proposed action.” Id.
Such effects may be direct, “indirect,” or “cumulative.” 40 C.F.R. § 1502.16.

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2. Mineral Leasing Act
The MLA governs the leasing of public land for coal production. The MLA
authorizes the Secretary of the Interior (“Secretary”) to divide lands that “have
been classified for coal leasing into leasing tracts of such a size as [the Secretary]
finds appropriate and in the public interest and which will permit the mining of
coal.” 30 U.S.C. § 201(a)(1). The MLA requires the Secretary, “in his discretion,
upon the request of any qualified application or his own motion” to “offer such
lands for leasing.” Id. The MLA requires the Secretary to “award leases thereon by
competitive bidding.” Id. The MLA bars the Secretary from awarding a lease to a
less than fair market value bid. Id. “No lease shall be held unless the lands
containing the coal deposits have been included in a comprehensive land-use plan
and such sale is compatible with such plan.” 30 U.S.C. § 201(3)(A)(i).
3. Federal Land Policy and Management Act
The Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §
1701, et seq., dictates the framework under which BLM manages public lands. It is
the policy of the United States, pursuant to FLPMA, that “the public lands be
managed in a manner that will protect the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water resource, and archeological
values.” 43 U.S.C. § 1701(a)(8). FLPMA further states that the policy of the

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United States requires that the “United States receive fair market value of the use
of the public lands and their resources.” 43 U.S.C. § 1701(a)(8).
BLM accomplishes this directive by developing, maintaining, and revising
RMPs. 43 U.S.C. § 1712(a); 43 C.F.R. § 1601.0–5(n). RMPs “guide and control
future management actions.” 43 C.F.R. § 1601.0–2. RMPs establish “[l]and areas
for limited, restricted or exclusive use” and determine “[a]llowable resource uses
(either singly or in combination) and related levels of production or use to be
maintained.” 43 C.F.R. § 1601.0-5(n)(1)–(2).
DISCUSSION
A court should grant summary judgment where the movant demonstrates
that no genuine dispute exists “as to any material fact” and the movant is “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment remains
appropriate for resolving a challenge to a federal agency’s actions when review
will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest
Serv., 469 F.3d 768, 778 (9th Cir. 2006).
The Administrative Procedure Act (“APA”) standard of review governs
Plaintiffs’ claims. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481, 496
(9th Cir. 2011); Bennett v. Spear, 520 U.S. 154, 174 (1997). The APA instructs a
reviewing court to “hold unlawful and set aside” agency action deemed “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
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U.S.C. § 706(2)(A). A rational connection must exist between the facts found and
the conclusions made in support of the agency’s action. Kraayenbrink, 632 F.3d at
481. The Court reviews the Department’s compliance with NEPA, the MLA, and
FLPMA under the arbitrary and capricious standard pursuant to the APA. See
Center for Biological Diversity v. Nat’l. Highway Traffic Safety Admin., 538 F.3d
1172, 1194 (9th Cir. 2008). Federal courts shall “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Agency action “includes the
whole or part of an agency rule, order, license, sanction, relief or the equivalent or
denial thereof, or failure to act.” 5 U.S.C. § 551(13). Courts have interpreted
claims under 5 U.S.C. § 706(1) to compel “discrete agency action that [the agency]
is required to take.” Norton v. Southern Utah Wilderness Alliance (SUWA), 542
U.S. 55, 65 (2004).
I.

ARTICLE III STANDING
Defendants assert that Plaintiffs allege conjectural harm, rather than any

imminent threat, and thereby lack standing to bring their claims. (Doc. 124 at 27.)
Defendants assert that a series of four events must occur to establish imminent
harm: (1) an operator applies to lease land or to modify a lease where Plaintiffs’
members recreate; (2) a BLM office completes an environmental assessment
(“EA”) or EIS and determines the fair market value of the coal and approves the

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lease modification; (3) a surface mining permit is issued; and (4) the mining plan is
approved. Id. at 28.
Defendants argue that none of these events can be characterized as imminent
or impending. Id. Defendants argue further that Plaintiffs lack standing due to
broad-ranging nature of the alleged harm that cannot be traced to the challenged
action. Id. Defendants further argue that Plaintiffs have failed to demonstrate
injury-in-fact because BLM has approved no leasing decisions since Secretary
Zinke lifted the moratorium. Id.
Article III standing requires a plaintiff, or in the case of an organization, one
of its members, to demonstrate: (1) injury-in-fact that is “concrete and
particularized” and either “actual or imminent” and not “conjectural or
hypothetical;” (2) a “causal connection” between the alleged injury and the
conduct complained of; and (3) a likelihood that the injury will be redressed by a
favorable decision.” Defenders, 504 U.S. 555, 560-61 (1992); Summers v. Earth
Island Inst., 555 U.S. 488, 493-94 (2009); Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977).
As an initial matter, Defendants’ argument that Plaintiffs lack standing to
pursue their NEPA claims until after individual leases have been processed and
coal has been leased and mined proves unavailing. (Doc. 124 at 28.) Plaintiffs
allege that Federal Defendants’ conduct in failing to comply with NEPA before
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ending the coal-leasing moratorium has inflicted a procedural injury. Plaintiffs’
alleged procedural injury stems from the risk that takes place “when governmental
decisionmakers make up their minds without having before them an analysis of the
likely effects of their decision on the environment.” Citizens for Better Forestry v.
U.S. Dep’t of Agric., 341 F.3d 961, 971 (9th Cir. 2003). A programmatic analysis
that may predetermine future decisionmaking “represents a concrete injury that
plaintiffs must, at some point, have standing to challenge.” Res. Ltd., Inc. v.
Robertson, 35 F.3d 1300, 1303 (9th Cir. 1994). Plaintiffs do not need to wait until
after coal has been leased and mining has been approved in order to challenge an
alleged procedural injury. See Sierra Forest Legacy v. Sherman, 646 F.3d 1161,
1179 (9th Cir. 2011).
A. INJURY-IN-FACT
A plaintiff must show that the procedures at issue are designed to protect
some “threatened concrete interest” to satisfy the injury-in-fact requirement.
WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015).
Plaintiffs’ Complaint establishes the injury-in-fact requirement of standing. To
demonstrate a concrete interest, a plaintiff must show “a geographical nexus
between the individual asserting the claim and the location suffering an
environmental impact.” Id.

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1. State Plaintiffs
State Plaintiffs consist of the states of Washington, California, New Mexico,
and New York. Federal coal production occurs in New Mexico. AR-1550. Federal
coal is transported via railways through California and Washington. Emissions of
pollutants from power plants that burn federal coal inhabit New York’s air. Coal
production, transportation, and consumption affects adversely, in relevant part, air
quality and water quality. AR-1584. The federal coal program, as of 2014, stands
responsible for an estimated eleven percent of total United States greenhouse gas
emissions. AR-1569. State Plaintiffs possess an interest in how the production,
transportation, and/or consumption of coal affects the earth and air in their
respective domains. See State of Ga. v. Tenn. Copper Co., 206 U.S. 230, 237
(1907). State Plaintiffs’ interest proves concrete—the harms of which State
Plaintiffs complain occur within each of the state’s geographical boundaries. W.
Watersheds Project, 632 F.3d at 485.
2. Organizational Plaintiffs
Organizational Plaintiffs likewise possess a concrete interest. The Western
Energy (Rosebud), Decker, and Spring Creek mines surround the Northern
Cheyenne Reservation. (Doc. 117-6 at ¶ 9.) Pending lease applications existed for
the Decker and Spring Creek mines when the Jewell Order imposed a moratorium
on new coal leasing. Id. at ¶ 12. Organizational Plaintiffs allege that coal mining at
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the Decker and Spring Creek mines impacts the air and water quality on the
reservation, destroys the habitats of sensitive species, and “destroys important
cultural sites, including sites used for Cheyenne ceremonies.” Id. at ¶ 10.
Organizational Plaintiffs allege that pollution from coal mining at the Decker and
Spring Creek mines equally affects a member-rancher’s use of the Tongue River
for irrigation and other agricultural purposes. (Doc. 117-2 at ¶ 4.)
Members further highlight that issuance of pending leases, that previously
had been paused pursuant to the Jewell Order, will affect several members’ use of
areas in Montana, Wyoming, and Utah. (Docs. 117-1 at ¶ 14, 117-3 at ¶¶ 23-24,
38-39, 117-4 at ¶ 14, 117-5 at ¶ 12.) The members attest that the issuance of
pending coal leases will increase the noise, air pollution, and visual impacts of coal
mining adjacent to the areas in which members use the land. (Docs. 117-1 at ¶¶ 511, 14-15, 117-3 at ¶¶ 32-39, 117-4 at ¶¶ 8-15, 117-5 at ¶¶ 3-10, 12.). The
Northern Cheyenne Tribe and Conservation Plaintiffs, through each of their
members, allege an injury to its members’ recreational and aesthetic interests. See
Friends of the Earth, 528 U.S. at 183; Cottonwood Environmental Law Center,
789 F.3d at 1079.
B. CAUSAL CONNECTION AND REDRESSABILITY
To establish a causal connection, a plaintiff must establish a “more than
attenuated” line of causation between the challenged action and the alleged harm.
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Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011). “Once a plaintiff has
established an injury in fact under NEPA the causation and redressability
requirements are relaxed.” W. Watersheds Project, 632 F.3d at 485. Plaintiffs must
demonstrate “only that they have a procedural right that, if exercised, could protect
their concrete interests.” Id.
Plaintiffs have alleged a procedural right under NEPA. Plaintiffs allege that
preparation of an EIS before ending the moratorium would require formal
consultation with the Northern Cheyenne Tribe regarding coal-leasing impacts. See
40 C.F.R. § 1501.7(a)(1). Plaintiffs assert that Federal Defendants deprived the
Northern Cheyenne Tribe of its right to participate in the scoping process.
Plaintiffs assert that Defendants’ failure to comply with NEPA deprived Plaintiffs
of a meaningful opportunity to influence the disposition of coal-lease applications.
The NEPA process proves sufficient to redress the procedural injuries that
Plaintiffs allege. See W. Watersheds Project, 632 F.3d at 485. Plaintiffs have
satisfied the causation and redressability requirements.
II.

RIPENESS
Ripeness prevents the Court, “through avoidance of premature adjudication,

from entangling [itself] in abstract disagreements over administrative policies, and
also to protect the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way by the
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challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49
(1967). A party that possesses standing and asserts an alleged injury by an
agency’s failure to comply with NEPA “may complain of that failure at the time
the failure takes place, for the claim can never get riper.” Ohio Forestry Ass’n, 523
U.S. at 737.
The Court has determined that Plaintiffs have alleged a procedural injury
related to Federal Defendants’ failure to comply with the NEPA process in
revoking the Jewell Order. Plaintiffs allege that the procedural injury occurred
when Federal Defendants lifted the moratorium without preparing an EIS, or
supplementing the PEIS. These events and the accompanying alleged procedural
injury have occurred. Plaintiffs’ challenge to the Zinke Order “may be their only
opportunity to challenge [the coal-leasing program] on a nationwide, programmatic
basis.” Cal. ex rel. Lockyer v. U.S. Dept. of Agriculture, 575 F.3d 999 (9th Cir.
2009). Plaintiffs’ NEPA claims are ripe for review.
III.

NEPA AND THE APA
Plaintiffs argue that Federal Defendants’ decision to lift the moratorium

constituted a major federal action that remains subject to NEPA review. (Docs. 116
at 25; 118 at 24.) Plaintiffs argue further that Federal Defendants’ decision not to
prepare an EIS proves reviewable under the APA. (Docs. 129 at 16; 130 at 19.)
The United States Supreme Court in SUWA, 542 U.S. 55, evaluated the same steps
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at issue in this case: (1) whether NEPA imposed a duty to prepare an EIS, and (2)
whether the agency’s failure to prepare the EIS was actionable under the APA. 542
U.S. at 72-73 (determining that “[b]efore addressing whether a NEPA-required
duty is actionable under the APA, [the court] must decide whether NEPA creates
an obligation in the first place.”) Id. at 72. The Court will follow the United States
Supreme Court’s approach in SUWA. The Court will first determine whether
NEPA imposed a duty upon Federal Defendants to prepare or supplement the PEIS
before analyzing whether the action is reviewable under the APA.
A. NEPA
NEPA serves as “our basic national charter for protection of the
environment.” N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d
1147, 1153 (9th Cir. 2008) (quoting Ctr. For Biological Diversity v. Nat’l Highway
Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008)). “NEPA requires that
federal agencies perform environmental analysis before taking ‘any major Federal
actions significantly affecting the quality of the human environment.’” Center for
Biological Diversity v. Salazar, 706 F.3d 1085, 1094 (quoting 42 U.S.C. §
4332(2)(C)).
The existence of a NEPA triggering event “depends on whether there is a
new proposed major Federal action.” Salazar, 706 F.3d at 1094. The threshold to
trigger NEPA remains “relatively low.” Lockyer, 575 F.3d at 1018. A NEPA
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triggering event requires merely that a plaintiff “raise substantial questions whether
a project may have a significant effect on the environment.” Id. (quoting Blue
Mtns. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)).
NEPA does not always require an EIS to ensure that an agency has taken a
“hard look” at potential environmental impacts. Lockyer, 575 F.3d at 1012. An
agency may comply with NEPA through the preparation of the following
documents and accompanying analysis: (1) an EIS; (2) a less extensive EA and a
finding of no significant impact on the environment (“FONSI”); or (3) a
categorical exclusion and finding that the action does not individually or
cumulatively have a significant effect on the human environment. Id.; 40 C.F.R. §
1508.4.
Defendants argue that the Zinke Order constituted merely an agency policy
to proceed with lease applications. (Docs. 124 at 35, 126 at 21.) Defendants assert
that no NEPA triggering event occurred because no major federal action or final
agency action existed. Id. Plaintiffs assert that NEPA required Federal Defendants
to prepare a PEIS before lifting the moratorium. (Doc. 118 at 25.) Plaintiffs argue
alternatively that NEPA required Federal Defendants to supplement the PEIS to
address the new information related to the impacts of coal leasing since 1979. Id.
1. The 2017 Lifting of the Moratorium

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President Trump directed Secretary Zinke to “take all steps necessary and
appropriate to amend or withdraw [the Jewell Order] . . . and to lift any and all
moratoria on Federal land coal leasing activities related to [the Jewell Order].” AR15904. Secretary Zinke issued the Zinke Order to end the federal coal-leasing
moratorium and the PEIS process on March 29, 2017. AR-00001-2. The Zinke
Order directed BLM to “process coal lease applications and modifications
expeditiously in accordance with regulations and guidance existing before the
issuance of [the Jewell Order].” AR-00002. Federal Defendants determined that a
NEPA analysis related to the lifting of the moratorium proved unnecessary. See
AR-00013. Defendants maintain that the Zinke Order did not constitute a major
federal action that triggered NEPA. (Doc. 124 at 39.)
Defendants assert that the analysis in Western Organization of Resource
Councils (WORC) v. Zinke, 892 F.3d 1234 (D.C. Cir. 2018), proves dispositive.
(Docs. 124 at 40; 126 at 16; 128 at 23.) WORC involved a similar NEPA challenge
at issue in the instant case. The plaintiffs in WORC claimed that the 1979 PEIS
issued by the Secretary of Interior had grown outdated. Id. at 1237. The plaintiffs
asserted that NEPA obligated the Secretary of the Interior to revise and update the
PEIS when its conclusions become stale. Id. The plaintiffs argued that NEPA
mandated the Secretary of the Interior to supplement the PEIS to account for the
impacts of coal combustion on greenhouse gases in the atmosphere. Id.
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The plaintiffs in WORC brought their cause of action in 2014. The district
court determined that then-Secretary of the Interior Sally Jewell had not proposed
any new action regarding the coal-leasing program. Id. (citing W. Org. of Res.
Councils v. Jewell, 124 F. Supp. 3d 7 (D.D.C. 2015). Secretary Jewell issued the
Jewell Order during the pendency of the plaintiffs’ appeal. The D.C. Circuit
initially held the case in abeyance. WORC, 892 F.3d at 1240. The plaintiffs moved
to rescind the order holding the appeal in abeyance after the issuance of the Zinke
Order. Id. The D.C. Circuit lifted the stay and set a briefing schedule. Id. The D.C.
Circuit limited its review, however, to the issue of whether the Interior Department
possessed a duty to update the PEIS due to its reliance on outdated information.
Id., at 1241.
The D.C. Circuit determined that “neither NEPA nor the [Interior]
Department’s own documents create a legal duty for the Secretary to update the . . .
PEIS.” Id. at 1246-47. The D.C. Circuit reasoned that no major federal action
could be identified regarding the plaintiff’s challenge. Id. at 1243. The Interior
Department’s approval of the 1979 PEIS constituted the major federal action at
issue in WORC. Id. The plaintiff’s argument that the continued reliance on the
outdated coal-leasing program constituted a major federal action proved
unavailing. Id. No pending action existed beyond the coal-leasing programs

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continued existence. Id. NEPA did not require the Interior Department to update
the PEIS after the major federal action had been completed in 1979. Id. at 1245.
The Jewell Order, and subsequent lifting of the moratorium through the
Zinke Order, distinguish the D.C. Circuit’s analysis in WORC. The D.C. Circuit
did not address a challenge to the Zinke Order. The D.C. Circuit instead limited its
analysis to determining whether the continued reliance on outdated information in
the 1979 PEIS required the Interior Department to supplement the PEIS with new
information. See WORC, 892 F.3d at 1246.
The circumstances of Plaintiffs’ challenge to the Zinke Order differ from the
circumstances that the D.C. Circuit analyzed and reviewed in WORC. Plaintiffs
challenge the Zinke Order as the major federal action. The absence of any agency
action beyond the Interior Department’s continued reliance on the 1979 PEIS
represented the fatal flaw in the plaintiff’s argument in WORC. Id. The Zinke
Order changed the status quo. The Zinke Order lifted the Jewell Order’s
moratorium and directed BLM to expedite coal leases. AR-00001. This action
provides the agency action that proved missing from WORC.
Plaintiffs rely on Lockyer, 575 F.3d 999, to assert that the Zinke Order
constituted a major federal action. Lockyer involved a nationwide plan directed by
President Clinton to protect roadless areas in national forests. Id. at 1006. The
Forest Service established the Roadless Area Conservation Rule (“Roadless
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Rule”). Id. The Forest Service promulgated the Roadless Rule on January 5, 2001.
Id. The Roadless Rule constituted a programmatic approach to roadless area
management in the United States. Id. The Roadless Rule prohibited road
construction, reconstruction, and timber harvest in roadless areas. Id. (citing 66
Fed. Reg. 3244 (Jan. 12, 2001).
The Roadless Rule’s effective date was March 13, 2001. Id. A change in
presidential administration delayed the effective date. Id. The Bush administration
began working on a new rule know as the “State Petitions Rule” to replace the
Roadless Rule in July of 2001. Id. at 1007. The Forest Service issued the final
State Petitions Rule in 2005 following a period of public comment. Id. (citing 70
Fed. Reg. 25,654 (May 13, 2005)).
The Forest Service explained that it had designated the State Petitions Rule
for a categorical exclusion under NEPA. Lockyer, 575 F.3d at 1008 (citing 70 Fed.
Reg. 25,654, 25,660)). The Forest Service reasoned that the State Petitions Rule
was “merely procedural in nature and scope and, as such, has no direct, indirect, or
cumulative effect on the environment.” Lockyer, 575 F.3d at 1008. The Forest
Service never fully implemented the Roadless Rule and it had been legally valid
only for seven months before being replaced by the State Petitions Rule. Id. at
1014.

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The Ninth Circuit analyzed whether the Forest Service’s action in replacing
the Roadless Rule with the State Petitions Rule required an environmental analysis
under NEPA. The Forest Service’s argument that the seven-month period that the
Roadless Rule had been in effect was “insufficient to make any meaningful
difference in forest planning” failed to persuade the Ninth Circuit. Id. (emphasis
omitted). The Ninth Circuit reasoned that the Roadless Rule’s seven-month
effective period resulted in benefits to roadless areas and their ecosystems. Id. The
Forest Service had implemented the State Petitions Rule for the “primary purpose”
of “taking substantive environmental protections off the books.” Id. at 1015. The
repeal of the Roadless Rule’s substantive protections could not be characterized as
“merely procedural.” Id. at 1018. The Ninth Circuit concluded that the plaintiffs
had raised a substantial question as to whether the repeal of the Roadless Rule
would have significant effect on the environment. Id.
The analysis in Lockyer applies to the replacement of the Jewell Order with
the Zinke Order. Lockyer involved a programmatic nationwide plan to address
roadless areas. Id. at 1006. The Jewell Order involved a nationwide programmatic
plan to reevaluate the coal-leasing program. AR-00008. The Bush administration
repealed the Roadless Rule after it had been in effect for seven months. Lockyer.
575 F.3d at 1014. The Trump administration revoked the Jewell Order after the

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coal-leasing moratorium had been in effect for nearly fifteen months and fourteen
days. AR-00001-2.
The State Petitions Rule replaced the Roadless Rule. Lockyer, 575 F.3d at
1014. A plan to “process coal lease applications and modifications expeditiously”
replaced the moratorium and PEIS process. AR-00002. The State Petitions Rule
served to lift environmental protections in Lockyer. 575 F.3d at 1015. The Zinke
Order served to re-open public land to coal leasing and to expedite lease
applications. AR-00002. The Ninth Circuit reasoned in Lockyer that the sevenmonth period of forest protection resulted in benefits to roadless areas and their
ecosystems. Lockyer, 575 F.3d at 1015. The moratorium similarly resulted in
increased protection for nearly fifteen months of approximately 65,000 acres of
public land that were subject to pending lease applications. See AR-15995-96.
One characteristic distinguishes Lockyer and the Zinke Order: the Forest
Service in fact did initiate the NEPA process in relation to the State Petitions Rule
at issue in Lockyer. The Ninth Circuit determined that the Forest Service’s fault lay
in designating the State Petitions Rule for a categorical exclusion from NEPA.
Lockyer, 575 F.3d at 1018. Federal Defendants failed to initiate a single step of the
NEPA process in relation to the Zinke Order. The process undertaken with regard
to the Zinke Order failed to reach even the minimum level of environmental
analysis performed in Lockyer.
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Plaintiffs have identified potential environmental harm that could result from
lifting the moratorium. Plaintiffs allege that the Zinke Order removed constraints
that provided beneficial effects on public lands and the environment. (Doc. 118 at
27-28.) Plaintiffs allege that the current coal-leasing program remains outdated. Id.
Plaintiffs allege that the moratorium provided an opportunity to examine the
impacts of coal leasing on a programmatic basis. Id. Plaintiffs allege that the
moratorium protected public lands of historical, cultural, spiritual, recreational, and
vocational significance from development. (Doc. 1 at 7-8.) Plaintiffs argue that the
Zinke Order immediately lifted those protections without any environmental
review. Id.
Similar to the Forest Service’s decision to repeal of the Roadless Rule as
“merely procedural” in order to avoid environmental review, Federal Defendants in
the present action circumvented any environmental analysis by characterizing the
Zinke Order as a mere a policy shift and return to the status quo. Plaintiffs have
raised a substantial question that the lifting of the moratorium could cause
environmental impacts from expedited coal mining on public lands. See Lockyer,
575 F.3d at 1012. Plaintiffs need not show at this point that any significant effect
actually will occur. See Blackwood, 161 F.3d at 1212. NEPA requires only that
Plaintiffs raise a substantial question as to whether the project may cause
significant environmental impacts. Id. (citing Idaho Sporting Congress v. Thomas,
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137 F.3d 1146, 1149 (9th Cir. 1998). Plaintiffs have demonstrated that the lifting
of the moratorium meets the “relatively low” threshold standard for a NEPA
triggering event. See Lockyer, 575 F.3d at 1018. The Zinke Order constitutes a
major federal action sufficient to trigger NEPA.
B. FINAL AGENCY ACTION
The Court next must determine whether a final agency action exists to be
reviewed under the APA. SUWA, 542 U.S. 55 (2004). NEPA provides no private
right of action and thus Plaintiffs’ claims must be brought under the APA. Earth
Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003). The APA
authorizes suit by a “person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant
statute.” 5 U.S.C. § 702. “Where no other statute provides a private right of action,
the agency action complained of must be ‘final agency action.’” SUWA, 542 U.S.
55, 61-62 (quoting 5 U.S.C. § 704) (emphasis in original). “Agency action” refers
to “the whole or part of an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act.” 5 U.S.C. 551(13).
Agency action proves final upon satisfaction of the following two
conditions: (1) “the action must mark the ‘consummation’ of the agency’s
decisionmaking process . . . it must not be of a merely tentative or interlocutory
nature;” and (2) “the action must be one by which ‘rights or obligations have been
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determined,’ from which ‘legal consequences will flow.’” Bennett v. Spear, 520
U.S. 154, 177-78 (1997) (citations omitted).
The Zinke Order meets the requirements for final agency action under
Bennett. The Zinke Order explained that Secretary Zinke had revoked the Jewell
Order “[b]ased upon the Department’s review of [the Jewell Order], the scoping
report for the [PEIS], and other information provided by the BLM[.]” AR-00001.
Secretary Zinke relied on Federal Defendants’ review in determining that halting
the federal coal program did not serve the public interest. Id. Secretary Zinke
further determined that the PEIS’s completion proved unnecessary based upon
Federal Defendants’ review. Id. The decision to revoke the Jewell Order and
expedite coal lease applications constitutes the consummation of Federal
Defendants’ decisionmaking on the moratorium and coal-leasing program. See
Bennett, 520 U.S. at 177-78.
The Zinke Order additionally implicates legal consequences. The Jewell
Order determined that over forty percent of coal production in the United States
came from federal land. AR-00004. The Jewell Order provided a blanket
moratorium on BLM administered coal development for the purpose of preparing a
PEIS. AR-00003. The moratorium attempted to avoid the risk of “locking in for
decades the future development of large quantities of coal under current rates and
terms that the PEIS may ultimately determine to be less than optimal.” Id. at 10.
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The PEIS would evaluate concerns over outdated information within the coalleasing program. Id. Plaintiffs have demonstrated that the moratorium provided
protections on public lands for more than fourteen months.
The Zinke Order articulated its purpose as to “process coal lease applications
and modifications expeditiously in accordance with regulations and guidance
existing before the issuance of [the Jewell Order].” AR-00002. In other words, the
Zinke Order served to lift the environmental protections that the Jewell Order had
provided during the pendency of the preparation of a new PEIS. The legal
consequences that flow from the Zinke Order are evident. With the Zinke Order’s
implementation, all BLM land became subject to lease applications with terms of
twenty years. See AR-00010. The Zinke Order directed new lease applications to
be “expedit[ed.]” Id. at 2. The PEIS process immediately stopped without full
review of the concerns raised in the Jewell Order. The Zinke Order satisfies the
legal consequences requirement under Bennett.
Federal Defendants further initiated a final agency action in their decision
not to begin the NEPA process. Failure to act may constitute final agency action. 5
U.S.C. § 706(1). A “decision not to prepare an EIS or consult NEPA can itself be
final agency action.” Forest Serv. Emps. for Envt’l Ethics v. U.S. Forest Serv., 397
F. Supp. 2d 1241, 1252 (citing Hall v. Norton, 266 F.3d 969, 975 (9th Cir. 2001))
(quotations omitted). Federal Defendants made a conscious decision not to initiate
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the NEPA process. The record demonstrates that Federal Defendants rejected any
NEPA review. AR-00001. Federal Defendants further reasoned that any
environmental concerns raised by Plaintiffs could be addressed through BLM
review outside the EIS process. AR-00014. Federal Defendants characterize the
Zinke Order as a mere policy shift.
The Court has concluded that the Zinke Order constituted a major federal
action. The Zinke Order constituted a NEPA triggering event. Federal Defendants’
decision not to initiate the NEPA process pursuant to the Zinke Order satisfies the
final agency action requirement. See Forest Serv. Emps., 397 F. Supp. 2d at 1252
(citing Hall v. Norton, 266 F.3d at 975) (quotations omitted). The initiation of the
NEPA process proves to be a “discrete agency action that it is required to take.”
SUWA, 542 U.S. at 64. Federal Defendants’ decision not to initiate the NEPA
process proves arbitrary and capricious.
IV.

WHETHER DEFENDANTS MUST PREPARE A PEIS
Plaintiffs request that the Court order Federal Defendants to complete the

preparation of the PEIS that began under the Jewell Order. (Doc. 1 at 31.) Plaintiffs
request alternatively that the Court order Federal Defendants to prepare a
supplement to the PEIS. Id. NEPA represents a purely procedural statute. Lockyer,
575 F.3d at 1012 (9th Cir. 2009). NEPA’s purpose constitutes the intent to “protect
the environment by fostering informed agency decision-making.” Id. NEPA “does
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not mandate particular results, but simply provides the necessary process to ensure
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 (9th Cir. 2004)
(citing Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059, 1070 (9th Cir.
2002)) (quotations omitted).
Federal courts cannot compel an agency to take specific actions. See
Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1221 (9th Cir. 2011)
(citing Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th
Cir. 2010)). Federal courts only can compel an agency to act upon its legislative
command. Id. The decision of whether an EIS proves necessary pursuant to the
agency’s action “is a manner of action left to the agency’s discretion.” Forest Serv.
Emps., 397 F. Supp. 2d at 1254 (citing SUWA, 542 U.S. at 65).
Plaintiffs in Forest Serv. Emps. sought an order from the court to direct the
Forest Service to prepare an EIS regarding its use of fire retardant to fight wildfires
on Forest Service land. The court agreed with the plaintiffs that the Forest
Service’s use of fire retardant raised a substantial question as to the dumping of
millions of gallons of fire retardant on national forests. Forest Serv. Emps., 397 F.
Supp. 2d at 1254. The court declined, however, to order the Forest Service to
prepare an EIS as opposed to an EA. Id. The court recognized that the decision of

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whether an EIS proves necessary pursuant to the agency’s act represents a “manner
of action left to the agency’s discretion[.]” Id. (citing SUWA, 542 U.S. at 65).
The Zinke Order triggered NEPA. Federal Defendants must comply with the
requirements of NEPA. The Court cannot compel Federal Defendants at this time
to prepare a PEIS, or supplemental PEIS, as Plaintiffs request. This matter remains
left to the agency to determine in the first instance. See Gardner, 638 F.3d at 1217;
Hells Canyon, 593 F.3d at 932; Forest Serv. Emps., 397 F. Supp. 2d at 1254.
As discussed previously, Federal Defendants may comply with their NEPA
obligations in a manner of ways. 40 C.F.R. § 1508.4. Federal Defendants may
determine that the preparation of an EA would satisfy their NEPA obligations. See
Blue Mountains Biodiversity, 161 F.3d at 1212 (citing 40 C.F.R. § 1508.9). In the
alternative, Federal Defendants may determine that the potential environmental
impacts from the Zinke Order warrant the preparation of an EIS. See id. If Federal
Defendants determine that an EIS would not be necessary, however, Federal
Defendants must supply a “convincing statement of reasons” to explain why the
Zinke Order’s impacts would be insignificant. See id. (quoting Save the Yaak, 840
F.2d at 717). Federal Defendants have failed to take even the initial step of
determining the extent of environmental analysis that the Zinke Order requires.
The Court defers to Federal Defendants in the first instance to conduct its required

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NEPA analysis. The Court stands in no position at this time to evaluate the
sufficiency of that analysis. Federal Defendants must take this initial step.
V.

PLAINTIFFS’ REMAINING CLAIMS
Plaintiffs claim that the Zinke Order violated the Federal Government’s trust

obligation to the Northern Cheyenne Tribe. (Doc. 118 at 46.) Plaintiffs ground this
claim in Federal Defendants’ failure to prepare an EIS. Id. The Court has
determined that the Zinke Order triggered the NEPA process. The Court also has
determined that it lacks the authority to compel Federal Defendants to prepare an
EIS at this point. Plaintiffs’ claim based on the Federal Government’s trust
obligation proves contingent upon Federal Defendants’ conclusions related to the
NEPA review that the Court has ordered. The Court remains unable to evaluate
this claim until Federal Defendants have completed their NEPA analysis.
Plaintiffs next assert that Federal Defendants failed to provide a reasoned
explanation for replacing the Jewell Order with the Zinke Order. (Docs. 116 at 28
& 130 at 33.) State Plaintiffs allege that the MLA and FLPMA mandated Federal
Defendants to ensure that leasing proved to be in the “public interest.” (Doc. 116 at
28.) State Plaintiffs further assert that Federal Defendants failed to account for
Secretary Jewell’s preliminary findings that the public was not receiving fair
market value from the sale of federal coal resources. Id. at 30.

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Federal Defendants grounded their reasoning for reversing course in their
conclusion that no NEPA triggering event had occurred pursuant to the Zinke
Order. Federal Defendants assert that the mere policy-shift prompted by the Zinke
Order did not trigger an environmental analysis. The Court’s determination that the
Zinke Order constituted a NEPA triggering event further prevents the Court from
reviewing these claims at this time. Plaintiffs grounded their Complaint related to
FLPMA and the MLA in “[Federal] Defendants’ [failure] to complete an
environmental review.” (Doc. 1 at 23-24.) The Court has ordered Federal
Defendants to initiate the NEPA process. The Court cannot reach these claims until
Federal Defendants have completed their environmental review.
CONCLUSION
Plaintiffs have demonstrated that they possess standing to challenge the
Zinke Order. Plaintiffs have further demonstrated that their claims are ripe for
review. The Zinke Order constituted a major federal action triggering NEPA
review. The Zinke Order further meets the requirements for final agency action
under the APA. The Court lacks the authority to compel Federal Defendants to
prepare a PEIS, or supplement to the PEIS, at this time. Plaintiffs’ remaining
claims prove contingent upon Federal Defendants’ initiation of the NEPA process
and subsequent conclusions.

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REMEDIES
Defendants assert that Plaintiffs fail to address the factors for permanent
injunctive relief set forth in Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139
(2010). (Doc. 124 at 36.) Defendants request time to negotiate a proposed remedy
briefing schedule and submit a joint proposal. Id. Permanent injunction is not an
automatic remedy in a NEPA case. Monsanto, 561 U.S. at 157. An entry of a
permanent injunction requires the Court to address the four equitable factors set
forth in Monsanto.
Plaintiffs represent in their Complaint that BLM suspended pending lease
applications during PEIS process. (Doc. 1 at

52.) Plaintiffs allege that a number

of lease applications were pending in February of 2016 while the Jewell Order’s
moratorium was in effect. Id. Plaintiffs allege that the pending lease applications in
2016 encompassed at least 1.86 billion tons of coal in nine states. Id. Plaintiffs
contend that this quantity represents roughly the equivalent to a four or five-year
supply of federal coal. Id. at

53.

The Court directs counsel for all parties to confer in good faith to attempt to
reach agreement as to potential remedies. The Court directs the parties to submit a
joint proposal no later than thirty days from today’s date if the parties reach an
agreement regarding remedies. The Court directs the parties to submit additional
briefing concerning Monsanto factors and remedies if the parties are unable to
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reach an agreement. This additional briefing and proposed remedies shall address
the current status of coal leasing, including the leases cited by Plaintiffs in their
Complaint that had been affected by the moratorium. This information could
impact the balancing of the four equitable factors under the analysis in Monsanto.
This briefing shall consist of one brief for Plaintiffs not to exceed 7,500
words. Federal Defendants shall be allowed one brief not to exceed 7,500 words.
Intervenor Defendants shall be allowed collectively one brief not to exceed 5,000
words. The word limit shall include everything from the caption to the certificate
of service.
ORDER
It is hereby ORDERED that Plaintiffs’ Motions for Summary Judgment
(Docs. 97 & 99 in CV-17-42-GF-BMM; and Docs. 115 & 117 in CV-17-30-GFBMM) are GRANTED IN PART and DENIED IN PART.
It is further ORDERED that Defendants’ and Defendant-Intervenors’ CrossMotions for Summary Judgment (Docs. 105, 107, 109 in CV-17-42-GF-BMM; and
Docs. 123, 125, 127 in CV-17-30-GF-BMM) are GRANTED IN PART and
DENIED IN PART.
The parties shall meet and confer in good faith to attempt to reach an
agreement as to remedies. The parties shall file a joint proposal regarding remedies
within thirty days of today’s date if the parties reach an agreement regarding
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remedies. The parties shall submit additional briefing on the Monsanto factors and
remedies no later than sixty days form today’s date if the parties are unable to
reach an agreement, in accordance with the above Order.
Entry of judgment will follow the imposition of a remedy in accordance with
the above Order.

DATED this 19th day of April, 2018.

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