Powder River Basin Resource Council et al v. U.S. Department of Interior Secretary et al

Filing 76

OPINION AND ORDER Affirming Agency Action and dismissing 1 Petition for Review by the Honorable Alan B Johnson.(Court Staff, ssw)

FILED"

li.S. DISTRICT COIIDr

O.SIiiiCT OF WYOMIfiG

20;ODEC-6 Pfl 1:33
IN THE UNITED STATES DISTRICT COURT

STEPHAN KARRIS. CLlR.H
Cnn i ziiHi.

FOR THE DISTRICT OF WYOMING

POWDER RIVER BASIN RESOURCE

COUNCIL, WESTERN ORGANIZATION OF
RESOURCE COUNCILS,
Petitioners,
Case No. 14-CV-97-ABJ

SALLY JEWELL, in her official capacity as
as United States Secretary of
the Interior, NED FARQUHAR, in his official

capacity as Deputy Assistant Secretary for
Land and Minerals Management, UNITED
STATES OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT, a

Federal Agency within the United States
Department of Interior,
Federal Respondents.
and

STATE OF WYOMING, PEABODY POWDER
RIVER MINING. LLC,

Intervenor Respondents.

OPINION AND ORDER AFFIRMING AGENCY ACTION
AND DISMISSING PETITION FOR REVIEW

Petitioners Powder River Basin Resource Council ("PRBRC") and Western

Organization of Resource Councils ("WORC") (collectively "Petitioners") challenge the
1

decision of the United States Secretary of Interior ("Secretary"), the Deputy Assistant

Secretary for Lands and Minerals Management ("Deputy Secretary"), the United States
Office ofSurface Mining Reclamation and Enforcement ("OSMRE") (sometimes collectively

"respondents"or"federalrespondents")approving a mining planmodification on March 14,
2014 for Peabody Powder RiverMining, LLC's ("Peabody") North Antelope Rochelle Mine

("NARM") in the Powder River Basin ("PRB") in Wyoming. The State of Wyoming and
Peabody were permitted to intervene in the administrative action (collectively referred to
as "intervenor-respondents"), also opposing the relief requested by Petitioners.

Petitioners seek judicial review ofthe decision approving a mining plan modification
underthe Administrative Procedure Act("APA"), 5 U.S.C. § 706(2)(A). Petitionerscontend

the agency's decision approving the NARM mining plan modification violates the Surface
Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. §§ 1202 et seq. and does not

satisfy the requirements for reclamation set forth in Title 30 of the Code of Federal
Regulations. Petitioners contend the agency decision was arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with law, in violation of the APA. The

respondentsand intervenor-respondents assert Petitioners' allegations are overstatedand
improperly apprehend both SMCRA and the Administrative Record ("AR") in this case.
Having reviewedthe parties' submissions, all materials inthe record, and being fully
advised, the Court finds and concludes that the decision recommending approval of the

mining plan modification by the Secretary is consistent with and in accordance with
applicable law, is supported by substantial evidence inthe administrative record, and there

is no clear error warranting reversal of the Secretary's decision. For the reasons stated

more fully below, the Secretary's approval of the mine modification plan is affirmed and the
Petition for Review will be dismissed.

Background and Contentions

The Secretary approved a mining plan modification authorizing a coal mine

expansion for Peabody's NARM, one ofthe largest strip mineoperations inthe world. The
mining plan modification that was approved would expand the size of NARM to

approximately 60,000 acres, with over 53,000 surface acres disturbed by mining;
approximately half of the disturbed lands are federal public lands. The mining plan

increases the public lands available for mining an additional 6,717 acres within NARM, for
a total of nearly 30,000 acres of affected federal public land ownership. Petitioners assert

that during the 30 years of operation of NARM, no lands or waters of the mine have been

permanently reclaimed. None of the federal public lands impacted by NARM operations

have been permanently reclaimed, which has resulted in a single use of those federal
lands by Peabody.

In their petition for review. Petitioners assert that the mining plan modification was
authorized "behind closed doors and without the benefit of public input and participation."

They furtherassert that the mining plan modification failsto ensure contemporaneous and
timely reclamation of federal public lands and restoration of associated waters by
establishing a timetable, measured by bond release, for accomplishment of every major

reclamation step and minimizing disturbance to the hydrologic balance. The mining plan
amendment exacerbates Peabody's reclamation failures byallowing Peabodytoself-bond

or provide a "corporate guarantee." Petitioners explain this to mean that Peabody never

puts up real money intended to protect the federal resources that are damaged through
operations pursuant to the mining plan modification. Thus, there is no real economic
incentive for Peabody orthe operator totimely orcontemporaneously reclaim these public
resources. Petitioners also argue that Peabody's ability to self-bond and guarantee

successful reclamation is questionable. Thisis because Peabody has suffered significant

losses overa long period oftime and its credit rating was downgraded to non-investment

grade or junk bond status. Petitioners assert there was a complete failure to consider
Peabody's bond status and its ability to self-bond and cover its financial obligations to

complete reclamation, while still allowing Peabody tocause additional disturbance ofpublic
lands within the mining plan modification.

The federal respondents have opposed Petitioners' contentions. The process for

approving applications for coal leases first comes tothefederal agency under the authority
of the Mineral Leasing Act of 1920 ("MLA"). The first stage in that process requires the

Secretary to consider various economic and environmental factors in making decisions
regarding applications forfederal coal leases. Frequently, this is referred to as the NEPA

process.

The next step in that process requires the Wyoming Department of

Environmental Quality ("WDEQ"), which is the federally approved SMCRA permitting
authority, 30 C.F.R. § 950.20, to consider applicationsfor surface mining permits, provide

opportunities for public comment, and issue permits and approve proposed mining plans,
which includes the requirement to address mining and reclamation requirements of the

SMCRA program. WDEQ then forwards to OSMRE for mining plan approval. The third

stage of the process requires OSMRE to conduct its own review and make
recommendations to the Secretary that the proposed plans for mining federal coal be

approved, disapproved, or approved with conditions. 30 U.S.C. § 207(c); 30 C.F.R. Part
746. It is the Secretary who makes the final decision on proposed mining plans.
The first and second stages require public participation; the third stage does not.

Petitioner PRBRC participated in the first stage involving the decision to lease the two

Wright Area coal lease tracts at issue here, the review process under the National
Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4307h. Petitioner WORC did not

participate inthe first stage where the decision approving leasing offederal coal lands was
made. Atthe second stage, there were four publicationsinthe local press inOctober 2013

giving noticeofthe mining permit approval proceedings. Notwithstanding their knowledge
of agency procedures providing notice to the public and opportunities to participate and
comment, neither of the petitioners in this case did so in that second stage. During the

permit approval stage, detailed plans for mining operations and reclamation required by
SMCRA are reviewed and assessed.

Petitioners offered no comment or input when

WDEQ was assessing the permit application and mining plan modification, yet they
contend here that the decisions were made behind closed doors and without the

opportunity for Petitioners and others to participate and offer input.

As to the third stage of the case, responding to Petitioners' claim that the OSMRE

did not provide opportunities for public participation, respondents argue Petitioners have

misread the pertinent regulations and applicable law. OSMRE is required to consider

comments received during the NEPA and SMCRA permitting processes, but additional

formal public comment is not mandated inthe third stage. Consequently, the respondents

urge that Petitioners do not state a cognizable claim. Respondents also assert that, even

if the regulations required public participation, no prejudice was suffered by Petitioners
because they were fully aware of the process and the WDEQ/OSMRE proceedings. The

remaining claims lack merit because Petitioners have not identified any violation of the
SMCRA performance standards.

The State of Wyoming and Peabody were permitted to intervene as respondents
in thisaction and submitted a joint response brief in opposition to Petitioners' opening brief.

Many oftheissues raised in theintervenor-respondents' opposition are substantially similar
to those advanced by the federal respondents. During the permit approval phase.
Petitioners never objected or offered comment that WDEQ, OSMRE or the Secretary

violated SMCRA by failing to ensure the mining plan modification meets performance
standards forreclaiming federal landsand waterresources. Because these commentsand
arguments were neverraised during the pertinentadministrative processes, the Intervenor-

respondents contend they have been waived and that Petitioners cannot complain about
these matters now. Even if Petitioners can raise these arguments now, the record

demonstrates the arguments do not have merit. The decision documents, reviewed by

OSMRE and approved by the Secretary, approved the mining plan. The mining plan

approval relied on the Environmental Impact Statement ("EIS") prepared pursuant to
NEPA. The EIS was based on extensive environmental analysis, hydrologic and soil

monitoring, sampling and testing pertinent to detailed operation and reclamation planning.
There were meaningful opportunities for public commentand cooperating agency review
and recommendations.

Petitioner PRBRC actively participated in this public NEPA

process. Intervenor-respondents ask that the Petition be dismissed because Petitioners
havefailed to identify anyflaw in the state and federal analysis conducted underSMCRA.

Decision History

1. Stage 1

In 2010, a Final Impact Statement for Wright Area Coal Lease Applications was

prepared. This FEIS concerned approval of the issuance of two large coal leases within
the PRB, which included portions of land located within the Thunder Basin National
Grassland. The environmental impacts of four Lease(s) by Application (LBAs) were the

focus ofthe EIS prepared for the Wright Area Coal LeaseApplications, pursuant to NEPA.
The evaluation ofthe environmental impactsofcoal leasingfirst requires preparation ofan

Environmental Analysis (EA) or EIS evaluating site-specific and cumulative environmental
and socioeconomic impactsof leasing and development offederal coal in the application
areas.

An announcement of the Draft EIS for the Wright Area LBAs was published in the

Federal Register on June 26,2009; Notice of Availability and Notice of Public Hearing for
the Draft EIS was published in the Federal Register on July 8, 2009. A 60 day comment

period on the Draft EIS ended August 25, 2009; public hearing was held July 29, 2009, in
Gillette, Wyoming, soliciting public comment on the Draft EIS and other matters.

Individuals representing organizations presented statements on the Draft EIS during the

hearing; written comments were received from 15 individuals, agencies, businesses, and

organizations, in addition to numerous telephone comments and emails from interested
individuals and entities during the comment period. A summary of statements from the

public hearing and public comments, with agency responses, is included in the Final EIS,
AR 021485; Appendix I (Draft EIS Comment Letters, BLM Responses, and Hearing

Summary), AR 22605-22813. After the FEIS was prepared, the Records ofDecision for
the Wright Area Coal Lease Applications, including the South Porcupine and North

Porcupine Tracts, were issued. AR 22824 (ROD South Porcupine Coal Lease Application,

August 2011); AR 22849 (ROD North Porcupine Coal Lease Application, October 2011).
Both the EIS and RODs advised that before mining could commence, the operator would

need a permit from WDEQ and the mining plan would have to be approved by the
Assistant Secretary ofInterior. AR 22834-22835.^ The BLM authorized coal leases in the
'In 2012, the FEIS and RODs approving the four coal leases in the Powder River
Basin werechallenged in separate proceedings, which wereconsolidated for decision after
the cases were filed, including 12-CV-85-ABJ, \A^ldEarth Guardians, Powder River Basin
Resource Council, Sierra Club v. United States Forest Service et ai.; 13-CV-42-ABJ,
WildEarth Guardians and Sierra Club v. United States Bureau of Land Management, and

13-CV-90-ABJ, Powder River Basin Resource Council v. United States Bureau of Land
(continued...)
8

North Porcupine and South Porcupine coal lease tracts in the Wright area, which would
expand NARM in the PRB.
The FEIS is in the AR 21472-22813; the Record of Decision ("ROD") for the South

Porcupine Tract is in the AR at 228134-228138; the ROD for the North Porcupine Tract is
at AR 22839-22884.

2. Stage 2

Peabody acquired the coal leases in December 2011, approved in February 2012.

After acquiring the coal leases, Peabody submitted its permitapplication package ("PAP")

on April 29, 2012 to WDEQ seeking a mining permit amendment for the additional coal
leases obtained on August 1, 2012 for the South Porcupine Tract and on October 1, 2012

for the North Porcupine Tract in NARM. AR 1-18104. WDEQ approved the permit
amendment to include mining of additional coal leases for the South Porcupine and North

Porcupine Tracts, adding 10,339.3 acres to the permit area. AR 23473; AR 23568.
WDEQ's assessment process included an administrative completeness review and

ultimately, a determination approving the permitto mine the additional coal leases in the

'(...continued)

Management In the consolidated cases the plaintiffs challenged the BLM decision to
approve the coal leases, arguing that the BLM failed to comply with NEPA. The Tenth
Circuit reversed and remanded with instructions to the BLM to revise its EIS and RODs,

but did not vacate the leases that had been approved. WildEarth Guardians v. United
States Bureau of Land Management, 870 F.3d 1222 (10th Cir. 2017). In the instant case,
the Petitioners have not challenged the decisions approving the decision for the coal
leases — instead, it focuses on matters pertaining to the approval of modifications of the
NARM mining plan.

NARM, conditioned upon approval by the Secretary upon OSMRE's recommendation.

The operator, Peabody, published notice of the completed PAP application in the
Gillette News Record for four consecutive weeks in October 2013, pursuant to 30 U.S.C.

§ 1263. Notices were also mailed to adjacent landowners, pursuant to the same statute.

The notices advised of opportunities for submitting comments and objections to the permit
modifications; none were received. AR 23473, 23641. The statute, 30 U.S.C. § 1263,
provides:

§ 1263. Public notice and public hearings

(a) Submittal of advertisement to regulatory authority; notification of local
governmental bodies
At the time of submission of an application for a surface coal mining

and reclamation permit, or revision of an existing permit, pursuant to the
provisions of this chapter or an approved State program, the applicant shall
submit to the regulatory authority a copy of his advertisement of the

ownership, preciselocation, and boundaries ofthe land to be affected. At the
time of submission such advertisement shall be placed by the applicant in a

local newspaper of general circulation in the locality ofthe proposed surface
mine at least once a week for four consecutive weeks. The regulatory

authority shall notify various local governmental bodies, planning agencies,
and sewage and water treatment authorities, of water companies in the
locality in which the proposed surface mining will take place, notifying them
of the operator's intention to surface mine a particularly described tract of
land and indicating the application's permit number and where a copy ofthe
proposed mining and reclamation plan may be inspected. These local
bodies, agencies, authorities, or companies may submit written comments
within a reasonable period established by the regulatory authority on the
mining applications with respect to the effect of the proposed operation on
the environment which are within their area of responsibility. Such comments

shall immediately be transmitted to the applicant by the regulatory authority
and shall be made available to the public at the same locations as are the
mining applications.

(b) Objections to permit applications; informal conference; record
Any person having an interest which is or may be adversely affected
or the officer or head of any Federal, State, or local governmental agency or
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authority shall have the right to file written objections to the proposed initial
or revised application for a permit for surface coal mining and reclamation
operation with the regulatory authority within thirty days after the last
publication of the above notice. Such objections shall immediately be
transmitted to the applicant by the regulatory authority and shall be made
available to the public. If written objections are filed and an informal
conference requested, the regulatory authority shall then hold an informal

conference in the locality of the proposed mining, if requested within a
reasonable time of the receipt of such objections or request. The date, time
and location of such informal conference shall be advertised by the

regulatory authority in a newspaper of general circulation in the locality at
least two weeks prior to the scheduled conference date. The regulatory
authority may arrange with the applicant upon request by any party to the
administrative proceeding access to the proposed mining area for the

purpose ofgathering information relevant to the proceeding. An electronic or
stenographic record shall be made of the conference proceeding, unless
waived by all parties. Such record shall be maintained and shall be
accessible to the parties until final release of the applicant's performance
bond. In the event all parties requesting the informal conference stipulate
agreement prior to the requested informal conference and withdraw their
request, such informal conference need not be held.
(c) Prior Federal coal lease hearing as evidence
Where the lands included inan application for a permit are the subject
of a Federal coal lease in connection with which hearings were held and
determinations were made under section 201(a)(3)(A), (B) and (C) of this

title, such hearings shall be deemed as to the matters covered to satisfythe

requirements of this section and section 1264 of this title and such
determinations shall be deemed to be a part of the record and conclusive for

purposes of sections 1260, 1264 ofthis title and this section.
On December 3, 2013, WDEQ approved the permit modification application and
then forwarded the decision document to OSMRE. AR 23473, 23606. The decision

document (SDD) expressly stated the permitwas issuedonthe condition that theAssistant
Secretary of Interior approve the mining plan. AR 23607. The SDD indicated that the
reclamation plan in the PAPcould accomplish reclamation required byWyo. Stat. § 35-11406(n)(ii) and LQD RR, Chapter 4, Section 2. AR 23608. The SDD is in the AR at 2356811

23605.

The SDDfound that Peabody had affirmatively satisfied the requirements for permit
approval as required by law, including:

(1)that the application was accurate and complete, pursuant to Wyo.
Stat.§ 35-11-406(n)(i):

(2) that the reclamation plan can accomplish reclamation as required

by the Act, Wyo. Stat. § 35-11-406(n)(ii) and LQD Coal RR, Chapter 4,
Section 2;

(3) that the proposed operation was designed to prevent material
damage to the hydrologic balance outside the permit area pursuant to Wyo.
Stat. §35-11-604(n)(iii);

(4) the area proposed to be mined is not included within an area

designated unsuitable for surface coal mining pursuant to Wyo. Stat. § 3511-425,within an area where mining is prohibited pursuant to Section 522(e)
of P.L. 95-87, nor within an area under review for this designation in an

administrative proceeding (Wyo. Stat. § 35-11-406(n)(iv));

(5) the proposed operation contains alluvial valley floors within or
adjacent to the permit area, but will not interrupt, discontinue, or preclude
farming on alluvial valley floor(s) that are irrigated or naturally subirrigated,

except those undeveloped range lands within the alluvial valley floors which
are not significantto farming, or where the farming that might be precluded

12

is of such a small acreage that its loss will have a negligible impact on the

farm's agricultural production, and the proposed operation will notmaterially
damage the quantity or quality of water in surface or underground water

systems that supply these alluvial valley floors (Wyo. Stat. § 35-11406(n)(v));

(6) the area to be surface mined does not contain prime farmland
(Wyo. Stat. § 35-11-406(n)(vi));

(7) the schedule required by Wyo. Stat. § 35-11-406(a)(xiv) and the
compliance review conducted by WDEQ/LQD suggests that all surfacecoal

mining operations owned or controlled by the applicant are currently in
compliance with the act and all applicable State and Federal laws, or that

any violation has been or is in the process of being corrected to the
satisfaction of the authority, department or agency that has jurisdiction over
the violation (Wyo. Stat. § 35-11-406(n)(vii));

(8) neither the applicant noroperatorcontrols or has controlled mining
operations with a demonstrated pattern of willful violations of such nature
and duration with such resulting irreparable harm to the environment as to

indicate reckless, knowing or intentional conduct (Wyo. Stat. § 35-11-406(o));
(9) the applicant does not qualify for an experimental practice
variance (LQD Coal RR Chapter 9);

(10) all appropriate Federal, State, and Local government agencies

13

with an interest in historic preservation have approved the proposed

operation, even though it may adversely affect any site(s) included in, or

eligible for inclusion in, the National Register of Historic Places. A plan to
mitigate adverse effects has been approved by the State Historic
Preservation Office, and other appropriate agencies, and has been

incorporated in the applicant's mining plan/or has been attached to the
permit by condition (LQD Coal RR Chapter 12, Section 1(a(v)(C));

(11)although the proposed operation iswithin one hundred feet ofthe
outside right-of-way line of a public road, the road may be relocated or the
area affected because the applicant has obtained the necessary approvals

of the authority with jurisdiction over the public road. Public notice and an
opportunity for public hearings for this purpose have been provided and the

required written finding has been made determining that the interests of the
public and the affected landowners will be protected from the proposed
operation (LQD Coal RR Chapter 12, Section 1(a)(v)(D));

(12) forthe term covered bythe permit, the proposed operation will be
consistent with other surface coal mining and reclamation operations

proposed or contemplated in pending or approved mining permits (LQD Coal
RR Chapter 12, Section 1 (a)(iv)(A));

(13) the mining and reclamation activities proposed will not affect the
continued existence of endangered or threatened species or result in the

14

destruction or adverse modification of their critical habitats (LQD Coal RR
Chapter 4, Section 2(r)(iii);

(14) no mining or reclamation activities will take place within the
boundaries of the National Park System, the National Wildlife Refuge

System, the National System ofTrails, the National Wilderness Preservation

System, the Wild and Scenic Rivers System, or any National Forest (LQD
Coal RR Chapter 12 Section 1(a)(v)(A) and (B));

(15) no mining or reclamation activities will be conducted within three
hundred feet of any occupied dwelling, public building, school, church,

community, institutional building, or public park, nor within one hundred feet
of a cemetery (LQD Coal RR Chapter 12, Section 1(a)(v)(E), (F), and (G));
and

(16) public noticewas given inthe Gillette NewsRecord from October
4 to October 21, 2013, with no objections to the permit received, Wyo. Stat.
§35-11-406(1) and (k)).

Peabody was advised by letter dated December 2, 2013 of approval of the permit
amendment for NARM. AR 23561-23567. The SDD was provided to the BLM Field Office

in Casper, Wyoming; OSMRE in Denver, Colorado was provided a copy of the SDD and
application for its own independent review. AR 23473.

15

3. stages

The next step taken with respect to the mining plan modification process is reflected
in the AR at 23464-23470, the Memorandum to the Director of the OSMRE from the

OSMRE Regional Director in Denver, Colorado, date-stamped February 27, 2014,

recommending that the Secretary approve the mining permit modification. The

recommendation for approval ofthe mining plan permit modification was based on the PAP

including the Resource Recovery and Protection Plan ("R2P2") submitted by Peabody;

compliancewith NEPA; documentation assuring compliancewith the requirementsofother
federal laws, regulations and executive orders; comments and recommendations or
concurrence of other federal agencies, and the public; findings and recommendations of

the BLM regarding the R2P2, federal lease requirements, and the MI_A; and, findings and
recommendations of the WDEQ regarding the permitapplication and the Wyoming state
program. AR 23464-23465.
This recommendation memorandum includes discussion of the relevant background

concerning NARM, outlines the proposed actions and identifies federal coal lands that

would be affected bythe proposal, and discusses the scope and impact ofthe project and
the review process leading up to the recommendation for approval ofthe proposed mining
plan modification. The review process is addressed in the recommendation memorandum
at AR 23468-23469. It notes WDEQ reviewed the permit application under the approved

Wyoming State program, the Federal lands program, and the Wyoming cooperative
agreement. WDEQ approved the permit application on December 3, 2013. OSMRE
consulted with other federal agencies, and adopted the EIS including the biological
16

assessment, surveys for culturalresources and inventory reports regarding same provided
to State Historical Preservation Office ("SHRO") for review, among other things.

Additionally, the OSMRE recommendation memorandum to the Director stated:
OSMRE has determined that the impacts on the quality of the human
environment associated with approval of this mining plan modification have
been adequately disclosed in previous NERA analyses. The environmental
analysis prepared by BLM with OSMRE as a cooperating agency, the EIS
and other environmental documents noted in the Statement of NERA

Adoption and Compliance, describe the impacts that may result from
approval of this mining plan modification and its alternatives. The adequacy
of the EIS is currently the subject of a judicial challenge, WildEarth
Guardians v. U.S. Forest Service, 12-CV-00085-ABJ (D. Wyo.).

The

Statementof NERA Adoption and Compliance and supportingenvironmental
analysis are included in the attached decision document.
OSMREdid not identify any issues during its reviewthat required resolution

bythe addition ofspecialconditions to the mining plan modification approval.
Publication of four consecutive weekly notices in the Gillette News Record

newspaper notified the public of the avaiiability of the administratively
complete PAR for review. The last publication date was October 21, 2013.
No public comments on the PAR were received after the public notice was
published.

WDEQ determined that a bond for $332,669,500 is adequate for NARM
Permit No. 569 associated with this mining plan modification. The bond is

payable to both the State of Wyoming and the United States.
AR 23469-23470.

The Statement of NERA Adoption and Compliance for the NARM mining plan
modification is at AR 23474-23475. The OSMRE prepared a Statement of National

Environmental Policy Act (NERA) Adoption and Compliance for Reabody Powder River
Mining, LLC North Antelope Rochelle Mine Federal Coal Leases WYW173408 and
WYW176095 Mining Plan Decision Document. The introduction to this document notes
17

that the PAP for a permit revision for NARM was submitted to WDEQ. WDEQ approved

the permit revision Decembers, 2013. The PAP proposed extending surface mine mining
operations Into 9,607 acres of Federal Leases WYW173408 and WYW176095. "In
accordance with the Mineral Leasing Act of 1920, under delegation of authority, the

Assistant Secretary, Land and Minerals Management, must approve, approve with
conditions, or disapprove the proposed mining plan modification for Federal Leases
WYW173408 and WYW176095. Pursuant to 30 CFR Part 746, the Office of Surface

Mining Reclamation and Enforcement (OSMRE) Is recommending approval ofthe mining
plan action without special conditions." AR 23474. The recommendation Includes a
statement of environmental significance of the proposed action, and Includes a
determination that the Final Environmental Impact Statement for the Wright Area Coal

LeaseApplications, July2010{E\S) adequately described the potential direct. Indirect, and
cumulative Impacts that may resultfrom approval of this mining plan modification and Its
alternatives. Id.

It continues:

This Statement of NEPA Adoption and Compliance Is based on the above
EIS In which OSMRE, as a cooperating agency, participated In Its

development. In accordance with 40 CFR 1506.3(a) and (c), OSMRE has
Independently reviewed the EIS and finds that OSMRE's comments and
suggestions have been satisfied, the EIS meets Council on Environmental
Quality (CEO) standards, and complies with 43 CFR Subpart E and other
program requirements. The adequacy of the EIS Is currently the subject of
a judicial challenge, WildEarth Guardians v. U.S. Forest Service, 12-cv00085-ABJ (D. Wyo.). In addition, BLM's review and approval of the
Resource Recovery and Protection Plan, the PAP, and WDEQ's written
findings for the PAP have been Independently reviewed by OSMRE. These
documents reviewed In conjunction with the attached EIS adequately and
accurately access the environmental Impacts of the proposed mining plan
action. The opportunity for public Input was provided during and with
18

completion of the EIS, with submission of the PAP, and during issuance of
the state mining permit.
*

*

*

*

The undersigned has determined that OSMRE's public involvement
requirements for an EIS have been met. The EIS was subject to public
review and comment prior to publication of the final EIS. Comments on the
EIS were reviewed and analyzed by the BLM and the EIS was revised as
appropriate. Comments outside the scope of the EIS were addressed inthe
BLM Record of Decision. No comments on the PAP were received after the

date of last publication. In addition, the referenced EIS and this Statement
of NEPA Adoption and Compliance will be made publicly available on the
OSMRE Western Region's website.

Afteran independent reviewofthe FinalEnvironmentalImpact Statementfor
the Wright Area Coal Lease Applications, July 2010,1 have determined that
it adequately addresses the impacts of the proposed mining plan
modification, and hereby adopt the entire EIS.

This Statement of NEPA Compliance is dated February 26, 2014 and was signed by the

Field Operations Branch Manager ofthe U.S. Departmentofthe Interior, Office of Surface
Mining Reclamation and Enforcement. AR 23474-23475.

Following the recommendation for approval from OSMRE, the Secretary of Interior
issued its mining plan modification approval document on March 14, 2014, signed by the
Principal Deputy Assistant Secretary, Lands and Minerals Management. AR 23644.
The various Mining Plan Decision documents are in the AR at 23460-23648. PAP
documents are in the AR at 1-18104.

Statutory and Regulatory Framework

A number of federal statutory provisions pertain to coal leasing decisions. The
Mineral Leasing Act (MLA), 30 U.S.C. §§ 181-287 authorizes the Secretary to lease federal

19

coal deposits. TheSecretary shall, on request ofa qualified applicant oron his orherown
initiative, "Offer [coal] lands for leasing," and "award leases thereon by competitive

bidding." 30 U.S.C. § 201(a)(1). The MLA requires approval of a mining plan by the
Secretary before surface disturbing activity occurs. 30 U.S.C. § 307(C).
OSMRE recommends mining plan approval; mining plans must meet the

requirements of 30 C.F.R. § 746.13. The plans must be based upon, at a minimum:
(a) The permit application package, including the resource recovery and
protection plan;

(b) Information prepared in compliance with the National Environmental
Policy Act of 1969, 42 U.S.C. 4321, et seq.;

(c) Documentation assuring compliance with the applicable requirements of
other Federal laws, regulations and executive orders other than the Act;

(d) Comments and recommendations or concurrence of other Federal
agencies, as applicable, and the public;

(e) The findings and recommendations ofthe Bureau of Land Management
with respect to the resource recovery and protection plan and other
requirements of the lease and the Mineral Leasing Act;

(f) Thefindings and recommendations ofthe regulatory authority with respect
to the permit application and the State program; and

(g) The findings and recommendations ofGSM with respect to the additional
requirements of this subchapter.

Petitioners argue that subsection (d) of this regulation requires a formal public
comment period at the mining plan amendment approval stage. However, this is not
correct.

The Surface Mining Control and Reclamation Act, SMCRA, 30 U.S.C. §§ 1201-

20

1328, isalso pertinent to consideration ofthe issues in this case. It has been described by
the United States Supreme Court as a "comprehensive statute designed to 'establish a

nationwide program to protect society and the environment from the adverse effects of
surface coal mining operations.' § 102(a), 30 U.S.C. § 1202(a) (1976 ed., Supp. III)."

Model V. Virginia Surface Min. &Reclamation Ass'n, Inc., 452 U.S. 264,268-69,101 S. Ct.
2352, 2356(1981).

The Tenth Circuit has addressed SMCRA. For instance, in Farrell-CooperMin. Co.

V. U.S. Dep't of the Interior, 728 F.3d 1229, 1231-32 (10th Cir. 2013), the Tenth Circuit
stated:

SMCRA provides for "a program of cooperative federalism that allows the
States, within limits established byfederal minimum standards, to enact and
administer their own regulatory programs, structured to meet their own

particular needs." Model v. Va. Surface Mining &Reclamation Ass'n, 452
U.S. 264, 289,101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Under SMRCA, states

may submit proposed regulatory programs tothe Secretary ofthe Interior for
approval. § 1253(a). Once a state has obtained approval of its program, it is
said to have achieved "primacy." State laws and regulations implementing
SMCRA "become operativeforthe regulation ofsurface coal mining, and the
State officials administerthe program." Bragg v. W. Va. CoalAss'n, 248 F.3d
275, 288 (4th Cir. 2001). States have "exclusive jurisdiction over the

regulation of surface coal mining and reclamation operations" within their
borders, § 1253(a), subject to three statutory exceptions, see§ 1271(a)-(c).
SMCRA is a program of cooperative federalism, which allows states to administer
their own regulatory programs, consistent with established minimum federal standards,
subjectto oversight bythe Department of Interior. See Model, 452 U.S. at 289. States may

assume primary jurisdiction over the regulation of surface coal mining and reclamation
operations upon approval by the Secretary of a state's program proposal. 30 U.S.C. §
21

1253. Upon approval of a state's proposed program, state law will govern regulation of
surface coal mining and reclamation operations in that state, but it is subject to oversight

by the Secretary, as the Secretary has an obligation to evaluate the administration of
approved state programs, inspect and monitor the operations ofstate programs. 30 U.S.C.
§§ 1267,1271. The State of Wyoming, through the Department of Environmental Quality,
Land Quality Division and the Secretary of the Department of the Interior, through the
OSMRE, have entered into a cooperative agreement regarding a program for the conduct

of surface mining operations within the State of Wyoming. 30 C.F.R. § 950.20. Once the
state assumes primaryjurisdiction over surface mining activities, OSMRE is authorized to

oversee state program implementation, including inspection and enforcement activities.
30 U.S.C. §1271.

Wyoming's Regulatory Program

OSMRE has delegated most regulatory and enforcement responsibilities over coal

surface mining activities in Wyoming to the WDEQ, pursuant to that state and federal

cooperative agreement. A state mining permitfrom WDEQ is requiredto conduct surface
coal mining and reclamation operations. 30 U.S.C. § 1253. WDEQ considers applications
for surface mining permits, receives public comment, issues permits and proposed mining
plans under a regulatory program approved by OSMRE. 30 C.F.R. §§ 950.10, 950.15.
During this process, WDEQ is required to ensure that surface coal mining operations meet
performance standards set forth in SMCRA. Title 30, United States Code, § 1265 provides

22

In part:

§ 1265. Environmental protection performance standards
(a) Permit requirement

Any permit issued under any approved State or Federal program
pursuant to this chapter to conduct surface coal mining operations shall
require that such surface coal mining operations will meet all applicable
performance standards ofthis chapter, and such otherrequirements as the
regulatory authority shall promulgate.
(b) General standards

General performance standards shallbe applicable to all surface coal
mining and reclamation operations and shall require the operation as a
minimum to—

(1) conduct surface coal mining operations so as to maximize
the utilization and conservation of the solid fuel resource being

recovered so that reaffecting the land in the future through
surface coal mining can be minimized;

(2) restore the land affected to a condition capable of
supporting the uses which itwas capable of supporting priorto
any mining, or higher or better uses of which there is
reasonable likelihood, so long as such use or uses do not

present any actual or probable hazard to public health or
safety or pose any actual or probable threat of water
diminution or pollution, and the permit applicants' declared
proposed land use following reclamation is not deemed to be
impractical or unreasonable, inconsistent with applicable land
use policies and plans, involves unreasonable delay in
implementation, or is violative of Federal, State, or local law;
*

*

*

*

(10) minimize the disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to

the quality and quantity of water in surface and ground water
systems both during and after surface coal mining operations
and during reclamation by~

(A) avoiding acid or other toxic mine drainage by
such measures as, but not limited to~
23

(I) preventing or removing water
from contact with toxic producing
deposits;

(ii) treating drainage to reduce
toxic content which adversely
affects downstream water upon

being released to water courses;

(iii) casing, sealing, or otherwise
managing boreholes, shafts, and
wells and keep3 acid or other toxic
drainage from entering ground and
surface waters;

(B)

(I) conducting surface coal mining
operations so as to prevent, to the
extent possible using the best
technology currently available,
additional

contributions

of

suspended solids to streamflow, or
runoff outside the permit area, but
in no event shall contributions be

in excess of requirements set by
applicable State or Federal law;
(ii) constructing any siltation
structures
pursuant to
subparagraph (B)(1) of this
subsection
prior
to
commencement of surface coal

mining operations, such structures
to be certified by a qualified
registered engineer or a qualified
registered professional land
surveyor in any State which
authorizes land surveyors to
prepare and certify such maps or
plans to be constructed as
designed and as approved in the
reclamation plan;

(C) cleaning out and removing temporary or
large settling ponds or other siltation structures
from drainways after disturbed areas are
revegetated and stabilized; and depositing the
silt and debris at a

site and in a
24

manner

approved by the regulatory authority;
(D) restoring recharge capacity of the mined
area to approximate premining conditions;
(E) avoiding channel deepening or enlargement
in operations requiring the discharge of water
from mines;

(F) preserving throughout the mining and
reclamation process the essential hydrologic
functions of alluvial valley floors in the arid and
semiarid areas of the country; and

(G)such other actions as the regulatory authority
may prescribe;
*

*

*

*

(16) insure that all reclamation efforts proceed in an
environmentally sound manner and as contemporaneously as
practicable with the surface coal mining operations: Provided,
however, That where the applicant proposes to combine
surface mining operations with underground mining operations
to assure maximum practical recovery of the mineral
resources, the regulatory authority may grant a variance for
specific areas within the reclamation planfrom the requirement
that reclamation efforts proceed as contemporaneously as
practicable to permit underground mining operations prior to
reclamation:

(A) ifthe regulatory authorityfinds inwriting that:
(I) the applicant has presented, as
part of the permit application,
specific, feasible plans for the
proposed underground mining
operations;

(ii) the proposed underground
mining operations are necessary
or desirable to assure maximum

practical recovery of the mineral
resource and will avoid multiple
disturbance of the surface;

(iii) the applicant has satisfactorily
demonstrated that the plan for the
underground mining operations
conforms to requirements for
underground mining in the
jurisdiction and that permits
25

necessary for the underground
mining operations have been
issued by the appropriate
authority;

(iv) the areas proposed for the
variance have been shown by the

applicant to be necessary for the
implementing of the proposed
underground mining operations;
(v) no substantial adverse
environmental damage, either
on-site or off-site, will result from

the

delay

in completion

of

reclamation as required by this
chapter;

(vi) provisions for the off-site
storage of spoil will comply with
paragraph (22);

(B) if the Secretary has promulgated specific
regulations to govern the granting of such
variances in accordance with the provisions of
this subsection and section 1251 of this title, and

has imposed such additional requirements as he
deems necessary;

(C) if variances granted under the provisions of
this subsection are to be reviewed by the

regulatory authority not more than three years
from the date of issuance of the permit; and

(D) if liability under the bond filed by the
applicant with the regulatory authority pursuant
to section 1259(b) of this title shall be for the
duration of the underground mining operations
and untilthe requirements of this subsection and
section 1269 of this title have been fully
complied with.[note omitted]

Id. (notes omitted). The statute provides additional detailed provisions applicable to all
surface coal mining and reclamation and additional minimum requirements that are not set
out here in entirety.

26

Under this program of cooperative federalism, WDEQ considers whether the

applicant has demonstrated that reclamation as required by federal statute, 30 U.S.C. §
1260(b)(2), and by theWyoming program can beaccomplished underthe reclamation plan
included in the PAP. The SDD, inthe AR beginningat 23606, determined that the operator

had made the showing required to satisfy the reclamation requirements set forth in the
scheme for evaluating and assessing mining permit applications. The next step is to

submit the permitted mining plan to OSMRE review; in turn, OSMRE makes its
recommendation to the Secretary whether to approve, not approve, or conditionally

approve themining plan. 30C.F.R. § 746.13. The Secretary then makes thefinal decision
based upon the recommendation whether to approve, not approve, or conditionally
approve the mining plan.

Standard of Review

In Audubon Society of Greater Denver v. United States Army Corp of Engineers,
2018 WL 5782609 (Nov. 5, 2018), the standard of review under the APA is set out;
Under the APA, we will not set aside the [agency's] decision unless it is

"arbitrary, capricious, an abuse of discretion, or otherwisenot in accordance
with law." 5 U.S.C. § 706(2)(A). "TheAPA's arbitrary and capriciousstandard
is a deferential one; administrative determinations may be set aside onlyfor
substantial procedural or substantive reasons, and the court cannot
substitute its judgment for that of the agency." Utahns for Better Transp. v.
U.S. Dep't of Transp., 305 F.3d 1152, 1164 (10th Cir. 2002).

The scope of review under the APA is "narrow[,] and [the] court is not to substitute
its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm

27

Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). The Court's role is to ensure the agency's
decision is based on relevant factors and is not a "clear error of judgment." Id.
Review is confined to the administrative record in existence at the time of the

decision made by the agency. Petitioners filed a Notice of Supplemental Authority

contending that OSMRE and the Secretaryfailed to evaluate whether Peabody's self-bond
for reclamation of federal public lands impacted by surface coal mining at NARM was
sufficient to cover the operator's responsibilities for reclamation under SMORA. In their

Notice of Supplemental Authority, Petitioners pointto the Chapter 11 bankruptcy filed by

Peabody long after the decision approving the mining plan modification was made. The
Court will not consider this "supplemental authority" in reviewing this APA matter.
The United States District Court in Colorado Environmental Coalition v. Office of

Legacy Management, Unreported Decision, Text at 2017 WL 897838, *1 (D. Colo. 2017),
addresses efforts to add supplemental authoritythat will expand the administrative record.
That court offers a concise and helpful discussion of the applicable law:

A proper administrative record must contain "all documents and materials
directly or indirectlyconsidered by the agency." BarMK Ranches v. Yuetter,
994 F.2d 735, 739 (10th Cir. 1993). The Court presumes that the agency
properly designated its record absent clear evidence to the contrary. Id. at
740. The plaintiff bears the burden to rebut that presumption. Ctr. for Native
Ecosystems v. Salazar, 711 F. Supp. 2d 1267,1275 (D. Colo. 2010) ("CNE").
A plaintiffmay move to "complete" the record, or to "supplement" it, or both.
"Completing the record" means adding materials the agency considered but
failed to include in the record. Id. at 1274 n.7. "Supplementing the record"
means adding materials the agency did not consider, but should nonetheless
be included in the record to permit a proper evaluation of the agency's
decision. Id.

28

In seeking to complete the record, a plaintiff must establish "(1) when the
documents were presented to the agency; (2) to whom; (3) and under what
context." Id. at 1275. Having established these elements, the plaintiff must
finally establish that the documents were indeed considered directly or
indirectly by the relevant agency decision-makers. Id.

The standard forsupplementing the record is less straightforward. In theory,

supplementation should be "extremely limited" because"[a]ggressive use of
extra-record materials... would run directly counter" to the notion that "the

agency's action must be reviewed onthe basisarticulated by the agency and
onthe evidence and proceedings beforethe agency at the timeit acted."Am.
Min. Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985). In the last few
decades, however, the Tenth Circuit has endorsed various justifications for
supplementing the record, including the following:
•"theagency action is notadequatelyexplained and cannot be
reviewed properly without considering the cited materials";
• "the record is deficient because the agency ignored relevant
factors it should have considered in making its decision";
• "the case is so complex and the record so unclear that the

reviewing court needs more evidence to enable it to
understand the issues"; and

• "evidence coming into existence after the agency acted
demonstrates the actions were right or wrong."

Ouster Cnty. Action Ass'n v. Garvey, 256 F.Sd 1024, 1028 n.1 (10th Cir.
2001).

In this case, the Court discerns no permissible reason that would justify allowing the
additional extra-record facts to the administrative record. Petitioners here are not asking

to offer additional authority that might shed light onthe pertinent legal landscape or provide
additional guidance in considering the issues raised in the petition forreview. The decision

bythe agency was made in March 2013. Chapter 11 bankruptcy petitions were filed by
Peabody EnergyCorporation and certain directand indirect subsidiaries on April 13,2016
inthe United States Bankruptcy Court for the Eastern District of Missouri. There were 154

29

separate entitles seeking Chapter 11 relief, all bankruptcy proceedings that were jointly
administered. (Doc. 59.) Any decisions or agreements arising out of those bankruptcy

proceedings related to coal mining in the PRB, including bonding requirements for proper
reclamation, if there are any, did not even exist and were unavailable when the agency

decision was made in 2013 approving the mining plan modification for NARM. Anything

derived from this massive bankruptcy undertaking would require conjecture and

speculation, at best, in aiding the review the propriety of the Secretary's approval of the
mining plan in this case.

Theagency action has been explained and will be reviewed only uponconsideration
of the existing administrative record. Nothing suggests that governing principles and
factors necessary to the agency decision were disregarded when the mining plan was

approved. The extra-record evidence offered to supplement the record will not be
considered in this APA review proceeding. Allowing the introduction ofevidence that could
not have been and never was before the agency will not permitted.

As such, the

Petitioners' "Notice of Supplemental Authority" (Doc. 73) will not be considered and will be
struck.

Discussion and Analysis

1. Was there a legal violation of public participation requirements in making the
decision to approve the NARM mining plan modification?

As to this first generally defined issue, the Court finds that the Petitioners' public

30

participation arguments are unavailing. The phasing of the various processes concerning

coal leasing and permits to mine upon approval of detailed mining plans provides multiple
and various opportunities for public participation. In the first stage, the BLM EIS
proceedings conducted pursuant to NEPAconsidered whether the WrightArea Porcupine
Tracts should be leased for coal mining. During this EIS / NEPA process, Petitioner

PRBRC did participate in the notice and comment stage. WORC did not participate

although the opportunity to do so was clearly available. During the EIS process,
opportunities to address and comment on the lease applications were provided to the
public. By way of example, notice of a public meeting to be held in Casper, Wyoming in
January 2007 was given; notice was given inJuly 2007 of the agency's intention to prepare
an EIS. The RODs recite publicinvolvementopportunities to comment and participate with

regard to the Porcupine coal lease applications and the NEPA review process concerning
the Wright Area Coal Lease Application EIS. For instance:
PUBLIC INVOLVEMENT

BLM received the Porcupine coal lease application on September 29,2006.
BLM announced the receipt of the LBA and published a Notice of Public
Meeting in the Federal Register on December 12, 2006. At the public
meeting held in Casper, Wyoming on January 18, 2007, the Powder River
Regional Coal Team (PRRCT) reviewed the Porcupine coal lease application
and BTU presented information about their existing mine and the pending
lease application. The PRRCT recommended that BLM process the
application. On March 14,2007, BLM notified the Governor of Wyoming that
BTU had made application for the North and South Porcupine Federal coal
lands.

BLM published a Notice of Intent to Prepare an EIS and Notice of Public
Meeting in the Federal Register on July 3,2007, in the Gillette News-Record
on July 6, 2007, and in the Douglas Budget on July 11, 2007. Scoping
31

notices were also mailed to Federal, state, and local government agencies,

conservation groups, commodity groups, and individuals who could be

impacted by this LBA. BLM and the applicant jointly developed the
distribution list. On July 24, 2007, a public scoping meeting was held in

Gillette, Wyoming. The scoping period extended from July 3 through
September 3, 2007, during which time BLM received nine comment letters.
A notice announcing the availability of the Wright Area Coal Lease

Applications Draft EIS was published in the Federal Register by the EPA on
June 26, 2009. Parties on the distribution list were sent copies of the Draft
EIS at that time. A60-day comment period on the Draft EIS commenced with
publication ofthe EPA's Notice ofAvailability and ended on August 25, 2009.
The BLM published a Notice ofAvailability/Notice ofPublic Hearing for the Draft
EIS in the Federal Register on July 8, 2009. The BLM's Federal Register notice
announced the date and time of the formal public hearing, which was held on

July 29, 2009, in Gillette, Wyoming. The purpose of the public hearing was to
solicit public comment on the Draft EIS, fair market value, maximum economic
recovery, and the proposed competitive sale of Federal coal from the Wright
Area LBAs. BLM also published a Notice of Public Hearing in both the Douglas
Budget and Gillette News-Record newspapers on July 8,2009. Two individuals
presented statements on the Draft EIS during the hearing. BLM received written
comments from 17 individuals, agencies, businesses, and organizations as well
as over 500 comment e-mails from other interested parties. Comments that BLM
received on the Draft EIS and how BLM considered these comments during the

preparation ofthe Final EIS were included in Appendix Iofthe Final EIS. Written
comments and the transcript of the formal public hearing are also available for
review at the BLM Wyoming High Plains District Office in Casper.
Anotice announcing the availability of the Wright Area Coal Lease Applications
FinalEIS was published in the Federal Register by the EPA on July 30, 2010.
Parties on the distribution listwere sent copies of the Final EIS at that time. The

comment period for the Final EIS ended on August 30, 2010. As explained on
the first page of the Final EIS, the public review period was open for 30 days
after EPA's Notice of Availability published in the Federal Register.
BLM received written comments on the Final EIS from Michael J. Strawn,
Powder River Basin Resource Council/Sierra Club/Center for Biological

Diversity, Leslie Glustrom, WildEarth Guardians/Sierra Club/Defenders of
Wildlife, Dorsey &Whitney LLP/Ark Land Company, and the Campbell County
Board of Commissioners. BLM has reviewed, evaluated, and considered these
comments. The comment letters and BLM's responses are available at

http://www.blm.gov/wy/st/en/info/NEPA/HighPlains/Wright-Coal.html.

All

comments that were received in a timely manner were considered in the
32

preparation of this Record of Decision (ROD).

ROD, EIS for the South Porcupine Coal lease application, AR 22827-22828; ROD, EIS for

the North Porcupine coal lease application (the same). AR 22852-22853. See also FEIS,

Wright Area Coal Lease Applications, AR 22192-22193. The distribution list for the FEIS
is also in the AR 22199-22204 (Table 5-3); FEIS, Appendix I, Draft EIS Comment Letters,
BLM Responses, and Hearing Summary, AR 22605-22813.

Of note here, PRBRC commented during the EIS process. Written comments from

PRBRC concerning the Draft EIS are in the AR at 22606-22616. Among other things,

PRBRC urged that the new tracts of coal could not be leased without first ensuring
compliance with SMCRA's contemporaneous reclamation mandates for existing tracts,

recognizing that OSMRE and WDEQ are the agencies charged with SMCRA compliance.
AR 22612-22613. PRBRC's representative also spoke at the July29,2009 public hearing

held in Gillette, Wyoming ontheWright Area Coal LeaseApplication Draft EIS. AR 22813.
After the FEIS was completed, the RODs for the Porcupine Tractswere issued and
further advised that before mining could occur, a SMCRA mining permit from WDEQ and

approval of any mining plan permit modification by the Department of Interior were
required, pursuant to the cooperative agreement.

OSM is a cooperating agency on this EIS. After a federal coal lease is
issued, the Surface Mining Control and Reclamation Act of 1977 (SMCRA)
gives OSM primary responsibility to administer programs that regulate
surface coal mining operations and the surface effects of underground coal
mining operations. USFS is also a cooperating agency on this EIS. If any
USFS-administered lands are included in a tract that is proposed for leasing,

USFS must consent to leasing the federal coal before BLM can make a
decision to hold a federal coal lease sale.
33

WDEQ is also a cooperating agency on this EIS. Pursuant to Section 503
of SMCRA, WDEQ developed, and in November 1980 the Secretary of the
Interior approved, a permanent program authorizing WDEQ to regulate
surface coal mining operations and surface effects of underground mining
on nonfederal lands within the state of Wyoming. In January 1987, pursuant

to Section 523(c) of SMCRA, WDEQ entered into a cooperative agreement
with the Secretary of the Interior authorizing WDEQ to regulate surface coal

mining operations and surface effects of underground mining on federal
lands within the state.

Pursuant to the cooperative agreement, a federal coal lease holder In
Wyoming must submit a permit application package to OSM and
WDEQ/LQD for any proposed coal mining and reclamation operations on
federal lands in the state.

WDEQ/LQD reviews the permit application

package to insure the permit application complies with the permitting
requirements and the coal mining operation will meet the performance
standards ofthe approved Wyoming program. OSM, BLM, USFS and other
federal agencies review the permit application package to insure it complies
with the terms of the coal lease, the MLA, NEPA, and other federal laws and

their attendant regulations. If the permit application package complies,
WDEQ issues the applicant a permit to conduct coal mining operations.
OSM recommends approval, approval with conditions, or disapproval ofthe

MLA plan to the Assistant Secretary of the Interior, Land and Minerals
Management. Before the MLA mining plan can be approved, the BLM must
concur with this recommendation.

If a proposed LBA tract is leased to an existing mine, the lessee is required
to revise its coal mining permit prior to mining the coal, following the

processes outlined above. As a part of that process, a detailed new plan
would be developed showing how the newly-leased lands would be mined

and reclaimed. The area of mining disturbance would be larger than the

newly-leased area to allow for activities such as overstripping, matching
reclaimed topography to undisturbed topography, constructing flood control
and sediment control facilities, and related activities. Specific impacts that

would occur during the mining and reclamation of the LBA tract would be
addressed in the mining and reclamation plan, and specific mitigation
measures for anticipated impacts would be described in detail at that time.
WDEQ enforces the performance standards and permit requirements for
reclamation during a mine's operation and has primary authority in
environmental emergencies. OSM retains oversight responsibility for this
enforcement. Where federal surface or coal resources are involved, BLM,
34

and USFS for USFS-adminlstered lands, have authority in emergency
situations if WDEQ or OSM cannot act before environmental harm and

damage occurs.

Appendix A presents other federal and state permitting requirements that
must be satisfied to mine these LBA tracts.

FEIS, AR 21594-21596. The RODs included similar explanations that prior to mining the

operator would need a permitfrom WDEQ and approval of a mining plan by Interior. AR
22834; 22859-22860.

After the leases were acquired, the operator applied to WDEQ for amendment of

the mining permit, submitted onApril 19,2012. AR 23473; AR 23568(Chronology). Thus,

the second phase, the mining permit approval process, was commenced. WDEQ
determined the PAP was administratively complete for public review and comment and
OSMRE received the PAP on November 5,2012. Id. Notice of the permit application and

companion review process was given in the Gillette News Record from October 4 to
October 21, 2013, identifying the plans for mining and the reclamation plan offered in
accordance with the SMORA requirements; notices were also mailed to adjacent
landowners. Published notices described the location of proposed activities, advised of

the availability oftheadministrative complete PAP for public review and noted opportunity
for public participation and for requesting an informal conference. No objections to the
permit modification application were received. AR 234641.
Neither PRBRC nor WORC participated in this process, providing no input,

comment orany otherobjection regarding this proposed mining permit modification. They
submitted no objection to the permit application, although they could have done so
35

pursuant to 30 U.S.C. § 1263. This section provides:

(a) Submittal of advertisement to regulatory authority; notification of local
governmental bodies

At the time of submission of an application for a surface coal mining

and reclamation permit, or revision of an existing permit, pursuant to the
provisions ofthis chapter or an approved State program, the applicant shall
submit to the regulatory authority a copy of his advertisement of the
ownership, precise location, and boundariesofthe land to be affected. At the
time of submission such advertisement shall be placed by the applicant in a

local newspaperofgeneralcirculation in the locality ofthe proposed surface
mine at least once a week for four consecutive weeks. The regulatory

authority shall notify various local governmental bodies, planning agencies,
and sewage and water treatment authorities, of [note omitted] water
companies in the locality in which the proposed surface mining will take
place, notifying them ofthe operator's intention tosurface mine a particularly
described tract of land and indicating the application's permit number and

where a copy of the proposed mining and reclamation plan may be
inspected. These local bodies, agencies, authorities, or companies may
submit written comments within a reasonable period established by the

regulatory authority on the mining applications with respect to the effect of
the proposed operation on the environment which are within their area of
responsibility. Such comments shall immediately be transmitted to the
applicant by the regulatory authority and shall be made available to the
public at the same locations as are the mining applications.

(b) Objections to permit applications; informal conference; record
Any person having an interest which is or may be adversely affected
or the officer or head ofany Federal, State, or local governmental agency or

authority shall have the right tofile written objections to the proposed initial
or revised application for a permit for surface coal mining and reclamation
operation with the regulatory authority within thirty days after the last
publication of the above notice. Such objections shall immediately be
transmitted to the applicant by the regulatory authority and shall be made
available to the public. If written objections are filed and an informal
conference requested, the regulatory authority shall then hold an informal
conference in the locality of the proposed mining, if requested within a
reasonable time of the receipt of such objections or request. The date, time
and location of such informal conference shall be advertised by the

regulatory authority in a newspaper of general circulation in the locality at
least two weeks prior to the scheduled conference date. The regulatory
authority may arrange with the applicant upon request by any party to the
36

administrative proceeding access to the proposed mining area for the
purpose of gathering information relevant to the proceeding. An electronic or
stenographic record shall be made of the conference proceeding, unless
waived by all parties. Such record shall be maintained and shall be
accessible to the parties until final release of the applicant's performance
bond. In the event all parties requesting the informal conference stipulate

agreement prior to the requested informal conference and withdraw their
request, such informal conference need not be held.
(c) Prior Federal coal lease hearing as evidence
Where the lands included in an application for a permit are the subject
of a Federal coal lease in connection with which hearings were held and
determinations were made under section 201 (a)(3)(A), (B) and (C) of this

title, such hearings shall be deemed as to the matters covered to satisfy the
requirements of this section and section 1264 of this title and such
determinations shall be deemed to be a part of the record and conclusive for
purposes of sections 1260, 1264 of this title and this section.

The permit amendmentwas approved, adding an additional 10,339.3 acres to the permit
area; the approved permit area covers 57,198.3 acres and acreage to affect is 53,586.0
acres. AR 23606. This decision found the reclamation plan in the PAP could accomplish

reclamation as required by Wyo. Stat. § 35-11-406 et seq., and considered necessary

requirements for reclamation; the timing of expected reclamation activities and bonding
obligations were addressed In the (SDD) decision document. AR 23606-23643.
The WDEQ decision stated that the permitis issued on the condition that the mining

plan be approved by Interior and was fonwarded to OSMRE. AR 23607.
The third phase of the permitting process is that which begins when the SDD is
submitted to OSMRE for review and ultimately, approval, non-approval or conditional

approval of the mining plan. Until the mine plan is approved by the Secretary, no mining
operations can commence on the coal leases.

37

Additional formal public comment is not required at this stage. Petitioners have

relied on 30 C.F.R. §746.13 to support the argument that a violation has occurred because

OSMRE did not provide for public comment and participation inthis third phase. However,
this regulation provides:

§ 746.13 Decision document and recommendation on mining plan.
OSM shall prepare and submit to the Secretary a decision document
recommending approval, disapproval or conditional approval of the mining

plan to the Secretary. The recommendation shall be based, at a minimum,
upon:

(a) The permit application package, including the resource recovery and
protection plan;

(b) Information prepared in compliance with the National Environmental
Policy Act of 1969, 42 U.S.C. 4321, et seq.;

(c) Documentation assuring compliance with the applicable requirements of
other Federal laws, regulations and executive orders other than the Act;

(d) Comments and recommendations or concurrence of other Federal
agencies, as applicable, and the public;

(e) The findings and recommendations ofthe Bureau of Land Management
with respect to the resource recovery and protection plan and other
requirements of the lease and the Mineral Leasing Act;
(f) Thefindings and recommendations ofthe regulatory authority with respect
to the permit application and the State program; and

(g) The findings and recommendations of OSM with respect to the additional
requirements of this subchapter.

The languageofthisregulation simply requiresthat the recommendation byOSMRE
to the Secretary must be based upon the PAP, the R2P2, NEPA information, various
documentation, and "comments and recommendations or concurrence of other Federal
38

agencies, as applicable, and the public." The regulation requires no more than

consideration of existing public comment and recommendations. It does not dictate that

any additional period for more public participation and comment be provided prior to or

during the OSMRE review and recommendation for approval of the decision document by

the Secretary. Petitioners' arguments are not supported bythe applicable regulations and
statutes.

2) Did the decision to approve the mining plan modification satisfy the reclamation
requirements of SMCRA?

As outlined above, WDEQ approved the permit application December 3,2013 and
forwarded its decision document to OSMRE the next day for review and approval of the

mining plan. The WDEQ decision document, SDD, determined that the reclamation pian
satisfied the requirements for reciamation, as required by the Wyoming SMCRA program,

Wyo. Stat.§ 35-11-406(n) and LQD Coal Rules and Regulations. The SDD noted thatthe
PAP, including 14volumes of permit revision material, had been submitted bythe operator
to supportthe NARM amendment request, with the reclamation plan included in Volumes
28 and 29 of the PAP. AR 23608-23635. The document included a detailed schedule for

the mining and reclamation progression. AR23526-23628. Reference to the mining plan
for NARM was noted, and this is where contemporaneous reclamation considerations were

addressed. See e.g., AR, 15125-15126, mining pian, 1.3.2. The mining pian discussed
possibie delays or deferrals of backfill and grading and other operations necessary to

39

satisfy reclamation requirements. Hydrologic resources and bonding requirements were
also specifically addressed.

The SDD was submitted to OSMRE for review and for the purpose of making a

recommendation to the Secretary regarding the proposed mining plan modification -

approve, disapprove, or conditionally approve the plan - pursuant to 30 C.F.R. Part 746.
Following review, the OSMRE recommendation forapprovalwithout special conditions was

made to the Secretary. AR 23464-23470. Approval of the SMCRA permit byWDEQ did
not imposea requirement that OSMRE reassess that permit approval or mining plan from

the ground up. OSMRE's task isto ensure that coal will be mined in compliance with other

applicable federal statutes, AR 23423-23425, including but not limited to NEPA, AR 23469,
23474-23547, the Endangered SpeciesAct, AR 23468-23550-23557, the National Historic
Preservation Act, AR 23468-234679,23560, and the MLA, AR 23468,23548. The OSMRE
decision recommendation was also based on the complete PAP, WDEQ's permit

amendment decision, AR 23464-23470, and the USFS concurrence on the reclamation
plan's impacts on post-mining land use. AR 23558.

The OSMRE review and decision process does not require a complete renewed
review and assessment ofthe Wyoming review process, which has been delegatedto the

state pursuant tothe cooperative agreement. OSMRE relies onthe state and prior federal
proceedings in making thedecision toapprove, approve with conditions, ordisapprove the
mining plan. The charge to OSMRE regarding its review of and recommendations
regarding mining plans is outlined in 30 C.F.R. § 746.13:

40

§ 746.13 Decision document and recommendation on mining plan.
OSM shall prepare and submit to the Secretary a decision document
recommending approval, disapproval or conditional approval of the mining
plan to the Secretary. The recommendation shall be based, at a minimum,
upon:

(a) The permit application package, including the resource
recovery and protection plan;

(b) Information prepared in compliance with the National
Environmental PolicyAct of 1969, 42 U.S.C. 4321, et seq.;

(c) Documentation assuring compliance with the applicable
requirements ofother Federal laws, regulations and executive
orders other than the Act;

(d) Comments and recommendations or concurrence of other
Federal agencies, as applicable, and the public;

(e)The findings and recommendations ofthe Bureau of Land
Management with respect to the resource recovery and
protection plan and other requirements of the lease and the
Mineral Leasing Act;

(f) The findings and recommendations of the regulatory
authority with respect to the permit application and the State
program; and

(g) The findings and recommendations ofOSM with respect to
the additional requirements of this subchapter.

See also, 48 Fed. Reg. 6012-01, 1983 WL 127785 (Feb. 16, 1983) ("OSM will receive

copies ofpermit application packages, which include permit applications, not to review the
applications for compliance with SMCRA, butto facilitate OSM's role in compliance with
applicable laws nototherwise covered in the SMCRA review. The State will havethe sole
responsibility for reviewing permit applications for SMCRA compliance. In addition, both
the proposed and final rules provide that the Secretary's decision on mining plan approval

41

will be based on, among other things, the State's findings on the permit application. See
revised 30 CFR 746.13(f).") The Court finds that the review activities undertaken by

OSMRE in reaching the decision to recommend approval of the mining plan modification
were appropriate and did not violate any requirements of SMORA.
Petitioners have contended that approval of the mining plan modification fails to

ensure "contemporaneous reclamation" and failed to ensure that the hydrologic plan

reflects steps that will be taken to minimize hydrologic disturbances. In substance, this is

a claim that the mining plan modification failsto satisfy performance standards forsurface

coal mining and reclamation operations on federal lands. They argue that the exclusive
measure fordetermining the timelinessofreclamation is Phase III bond release, which was

not employed in the reclamation plan. The general tenor of Petitioners' arguments is that
OSMRE failed to assess reclamation adequately when the approval recommendation was
made, and ultimately, approved by the Secretary.

The Court is not persuaded by Petitioners' arguments. The applicable lawdoes not

suggest that the language requiring "contemporaneous reclamation" is as cramped as
Petitioners suggest. Petitioners have claimed that the detailed estimated timetable for
major steps in the reclamation plan are absent from the mining plan and this failure
precludedapprovalofthe mining plan modification permit. However, Petitioners'assertions

regarding the contours and time frames for reclamation are clearly contradicted in the
record. The PAP provided extensive analysis and discussion, included maps and
schedules for numerous listed reclamation activities such as grading, topsoil replacement

42

and fill, and accomplishing post-mining contours, and manyotherevents. WDEQ reviewed
the PAP, submitted the SDD to OSMRE for review and for OSMRE to make its

recommendation whether the mining plan should be approved to the Secretary. While

Petitioners ask for more, the regulatory scheme does not require more and the activities

ofthe agencies involved in the review, recommendation and approval process satisfy the
requirements of SMCRA.

Performance standards for environmental protection are set forth in 30 U.S.C. §

1265. This statute provides that any permit issued under an approved state program to

conduct surface coal mining operations shall require that such surface coal mining

operations will meet all applicable performance standards. The State of Wyoming in
administration of the cooperative program must require operations to meet applicable

performance standards.^ Ensuring compliance with performance standards is a task
delegated to WDEQ and the State ofWyoming; this task is not charged to OSMRE orthe
Secretary. The federal entities, OSMRE and the Secretary, provide limited oversight
because the Secretary has an obligation to evaluate administration of approved state

programs, inspect and monitorthe operations ofstate programs. 30 U.S.C. §§ 1267,1271.
More importantly, WDEQ did require with its approval of the permit for the mining

plan modification that performance standards be metand satisfied. The PAP for the NARM
mining plan demonstrated that the operator intends to meet performance standards and

^Performance standards for operations and reclamation are identified in 30 G.F.R.
§740.19.
43

achieve reclamation as "contemporaneously as practical following coal removal and

continue concurrently with mining activity." AR 15125. The performance standards must
insure that "all reclamation efforts proceed in an environmentally sound manner and as

contemporaneously as practical with the surface coal mining operations[.]" 30 U.S.C.

1265(b)(16). Reclamation was considered byWDEQ when itdetermined that the permit
for the mining plan modification should be approved and subsequently submitted to
OSMRE; WDEQ recognized that "contemporaneous reclamation" may be subject to the

vagaries of mining operations and may not be not performed with the immediacy or

urgency that Petitioners believe is warranted for the NARM mining operations. All
documents inthe administrative record indicate that reclamation was considered, including

thetypes ofreclamation anticipated, estimated timetables for major steps in reclamation,
and identification ofreclamation activity blocks forreclamation in five year increments. AR

23626. Whether the contemplated reclamation, as set forth in the approved PAP, is

actually successful is beyond the purview of this APA review and that is a matter for
another day and time. Any invitation to speculate in that regard must be declined.
The Court disagrees that Phase III bond release is the exclusive means for

measuring timeliness of reclamation and deciding whether the legal requirements for
approval of the mining plan modification have been satisfied. Reclamation success is
addressed in the OSMRE Directive REG-8, which provides guidelines for evaluating

reclamation success. "Existing bond release systems and forms should be used to the

extent possible to evaluate reclamation success." AR 23317. Bond release may be a

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measure, but is not the onlymeans for measuring reclamationsuccess. AR23320,2327623277,23060,23112,23137-233157,23173-23176,23208-23229,23248-23250,23277-

23287. OSMRE evaluates and reports on the effectiveness of successful reclamation on

lands affected by surface coal mining regulations and recognizes that final bond release
can be an inaccurate measure of actual reclamation activities. See e.g., AR 23275,23280,

23098-23136 (Evaluation Year2011), 23137-23157 (Evaluation Year 2011), 23158-23027

(Evaluation Year 2012). The administrative record discloses repeatedly that WDEQ and
OSMRE did consider contemporaneous reclamation carefully and considered various

means for gauging successful reclamation and deciding whether the legal requirements
were met and sufficient to support a decision to approve the mining plan modification.

Similarly, the operator's mining plan with respect to hydrology demonstrates

commitment to a plan intended to "minimize disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to the quality and quantity of

water in surface and ground water systems both during and after surface coal mining

operations and during reclamation[.]" 30 U.S.C. § 1265(b)(10). By way of example, a
detailed hydrologic control plan was included in the mining plan, along with maps and
specifications for restoration. AR 17440,18095-18101. The record includes a hydrologic
analysis, "Cumulative Hydrologic Impact Assessment of Coal Mining in the Southern
Powder River Basin, Wyoming" which wasconsidered by WDEQ. AR 18173-18478. With
this record, it seem disingenuous for Petitioners to assert the record fails to include a
discussion of the steps that must be taken to minimize disturbance to the hydrologic
45

balance.

WDEQ's expertise in this area was utilized to evaluate and determine that the

reclamation plan in the mining plan satisfied SMCRA. This expertise was encompassed
in the SDD that eventually was forwarded to OSMRE for its review and recommendation

forapproval ofthemining plan. OSMRE's recommendation forapproval ofthemining plan
was then forwarded to the Secretary. This was followed by the Secretary's decision to

approve the mining plan. See e.g., AR 23562-23605. The record does not demonstrate
thatthedecision ofthe Secretarytoapprove the mining plan modification as recommended

by OSMRE following OSMRE's independent review and consideration ofthe SDD prepared
by WDEQ was arbitrary, capricious, an abuse of discretion or otherwise not in accordance
to law. None of the deficiencies Petitioners complain about are sufficient to demonstrate

that reclamation was not considered by WDEQ, OSMRE, or the Secretary in making the

decision ultimately approving the mining plan modification for NARM. Given the narrow

scope of APA review, the Court is satisfied that the agency's decision was based upon
relevant factors and was not a clear error of judgment.

The Court will briefly address thefinal issue raised by Petitioners concerning their

claim that the Secretary failed to ensure that bonding was sufficient to protect natural

resources. They have argued that Peabody's financial condition was "dire" at the time of

the agency's decisions and that the assessment of Peabody's ability to self-bond should
have been considered morecarefully and thoroughly in making the decision to approve the

mining plan modification. Petitioners have urged that the operator's "lack of
46

contemporaneous and timely reclamation" over the last 30 years demonstrates that the

operator's "corporate guarantee" is inadequate. They submit that Peabodydoes not have
the financial ability to meaningfully self-bond and ultimately, that Peabodywill befinancially
unableto timely and successfully satisfy itsreclamation obligations. The arguments raised
about the decision approving self-bonding for reclamation purposes do not withstand
scrutiny.

The administrative record reflects that the PAP addressed bonding in the

reclamation plan, stating that"[t[he bond estimate for the current disturbance is shown in
the current annual reports for the North Antelope Rochelle Mine. Any revised bond
amounts and calculations were to be included in future annual reports." AR 17105.

Bonding was addressed at length in NARM Annual Report for 2012 (Revised April 2013),

Appendix B, Reclamation Performance Bond. This document includes information
summarizing the Reclamation Bond for NARM and calculations for estimated reclamation
costs. AR 19934-19974. The PAP was reviewed by WDEQ as required to do when a

request to mine comes before it. Upon consideration and review of the PAP, WDEQ
determined that an adequate bond for reclamation in the amount ofapproximately $333

million, payable to the State of Wyoming and the United States was appropriate. This
determination, included in the SDD, was reviewed and relied upon by OSMRE prior to

recommending, and receiving, approval from theSecretary for the mining plan modification
that extends permitted mining in the NARM. AR 234690-23470.

An operator must make an initial application to self-bond at the time an application
47

is made for a license to mine. An applicant must provide a history of financial solvency

demonstrating that financial condition satisfies the WDEQ standards for self-bonding.

Pertinent statutory and regulatory provisions governing bonding are included at 30 U.S.C.

§ 1259; 30 C.F.R. §§ 950.10 and 950.15 (approving state regulatory program and
amendments for the conduct of surface mining operations inWyoming); Wyo. Stat. §§ 35-

11-417 to -423; Wyoming Rules and Regulations, Department of Environmental Quality,

Land Quality-Coal, Chapter11 (Self-Bonding Program) and Chapter15(ReleaseofBonds

or Deposits and Termination of Jurisdiction for Surface Coal Mining Operations).
Information relevant to bonding is in the PAP and was considered by WDEQ. It is also
notable that the assessment of appropriate performance bonds is not a static process.
Performance bond amounts are calculated annually, so the amount of a bond for

reclamation and whetherself-bonding isappropriate are reassessed frequently. The record
discloses that WDEQ did consider the reclamation plan's provisions for bonding and that
estimates for reclamation of disturbances may be revised annually. This informationwas

passed to OSMRE, and in turn passed to the Secretary with the recommendation for
approval from OSMRE; the Secretary approved the mining plan amendment.
As noted earlier, Petitioners have argued that subsequent financial events after

Peabody's self-bond was approved bythe Secretaryshowthat the permit and mining plan
modification approval, with the companion provisions regarding reclamation bonds, were
not adequate. However, the Court has not allowed the Petitioners to supplement the
record in this case to include matters that were never available at the time the decisions

48

to approve the mining permit and mining plan modification were made. In this APA action,
the Court is limited to a review of the record and matters that were presented to the

agencies when the decisions to approve the mining plan modification were made.

Petitioners' arguments in this regard are beyond the scope of appropriate administrative
review in this case and are unavailing. The record discloses that the agency's decision

regarding reclamation was based on relevant factors. Even ifthe Court agreed that the
bond determinations for reclamation by the operator in NARM were inadequate, the Court
cannot substitute its judgment for that of the agency and will not do so now.

Conclusion

In an APA action, the Court's review is based on the administrative record before

the agency at thetime of its decision. The Court's role is to determine whether the record

supports the agency's decision as a matter oflaw and the scope ofreview is narrow. See
Colo. Wild, Heartwoodv. U.S. ForestService, 435 F.Sd 1204,1213 (10th Cir. 2006) (citing
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. ins. Co., 463 U.S. 29, 43, 103 S.Ct.

2856, (1983)). A decision is arbitrary and capricious if the agency (1) 'entirely failed to
consider an important aspect ofthe problem,' (2) 'offered an explanation for its decision
that runs counter to the evidence before the agency or is so implausible that it could not

be ascribed to a difference in view or product of agency expertise,' (3) 'failed to base its
decision on consideration of the relevant factors,' or (4) made a 'clear error of judgment.'"
New Mexico ex rei Richardson v. Bureau of Land Management, 565 F.3d 683, 704 (10th

49

Cir. 2009) (citation omitted).
For all of the reasons stated above, the Court finds and concludes that Petitioners

have not established that the decision to approve the mining permit and mining plan

modification \was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. The agency's decisions should be affirmed and the petition for
review will be dismissed. Accordingly, it is therefore

ORDERED that the Petition for Review of Federal Agency Action (Doc. 1) shall be,
and is, DISMISSED. It is further

ORDERED thatthe agency action approving a mining planmodification for Peabody
PowderRiver Mining, LLC's North Antelope Rochelle Mine in the Powder River Basin shall
be, and is, AFFIRMED.

Dated this

day of December 2018.

ALAN B. JOHNSOl

UNITED STATES DISTRICT JUDGE

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