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Montana Environmental Information Center v. United States Office of Surface Mining

United States District Court, D. Montana, Missoula Division

November 3, 2017

UNITED STATES OFFICE OF SURFACE MINING, an agency within the U.S. Department of Interior, et ah, Defendants, and SIGNAL PEAK ENERGY, LLC, Defendant-Intervenor.



         The modest modification of the scope of the injunction in this case must not be construed as suggesting the Agency did what the law and Congress requires it to do. Nor should any suggestion, implication, or inference be drawn from modification of the scope of the injunction that remand to the Agency is a simple paper shuffling exercise. It is not. This matter is back to square one as far as the Agency, the public, and the Mine should be concerned.

         This case centers on the sufficiency of the Bull Mountains Mine No. 1 Federal Mining Plan Modification Environmental Assessment (the "Mining Plan EA") prepared by Defendant United States Office of Surface Mining Reclamation and Enforcement ("Enforcement Office") in response to Defendant-Intervenor Signal Peak Energy, LLC's application for a Federal Mining Plan Modification. Following the Enforcement Office's approval of the modification, Plaintiff Montana Environmental Information Center ("Plaintiff) sued, requesting declaratory and injunctive relief. (Doc. 1.) Signal Peak was granted leave to intervene. (Doc. 12.) The parties subsequently moved for summary judgment.

         On August 14, 2017, Plaintiffs motion for summary judgment was granted in part and denied in part. (Doc. 60 at 63.) The August 14 Order held the Enforcement Office failed to take a hard look at the indirect and cumulative effects of coal transportation and coal combustion (Count III), failed to take a hard look at foreseeable greenhouse gas emissions (Count IV), and that its approval of the Mining Plan EA was made despite significant uncertainty about those critical issues (Count II). (Id. at 2-3, 63.) The Order vacated and set aside the Mining Plan EA and remanded the matter to the Enforcement Office, noting that while it "d[id] not mandate the preparation of an EIS, an EIS may be required under [the National Environmental Policy Act]" ("NEPA"). (Id. at 64.) The Order also enjoined "mining of federal coal within the Amendment 3 permit boundary [the area at issue in the Mining Plan] . . . pending compliance with NEPA." (Id.)

         On September 11, 2017, Signal Peak moved to amend that remedy pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 69.) Federal Defendants supported the motion. (Doc. 85.) Specifically, Signal Peak requested reconsideration of the decision to vacate and set aside the Mining Plan EA and the decision to enjoin all mining of federal coal within the Amendment 3 permit boundary pending compliance with NEPA. Signal Peak asserted it was error to issue an injunction without conducting the equitable factors analysis required by Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139 (2010). It also asserted that vacatur of the Mining Plan EA was inappropriate because the Enforcement Office's errors were not serious, and vacatur would cause significant disruption outweighing the magnitude of the Enforcement Office's errors. (Id. at 7.) Following briefing and a hearing on the issue, [1] on October 31, 2017, the Court modified the injunction to allow for limited development work in Section 8 within the Amendment 3 permit boundary. (See Doc. 99.) Specifically, that modification allows Signal Peak to conduct development work by displacing and storing no more than 170, 000 tons of federal coal within Section 8. (Id.) The reasons for that limited modification-which is based on the unique facts presented by this case and is not to be construed to defang the NEPA process or relieve the Enforcement Office of its statutory obligations-are set out below.


         Rule 59(e) allows parties to move "to alter or amend a judgment" within 28 days after its entry. A court may alter or amend judgment under Rule 59(e) to address newly discovered evidence, correct a clear error in the original decision, prevent manifest injustice, or account for an intervening change in the controlling law. Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted) (emphasis in original). District courts have broad discretion in evaluating Rule 59(e) motions. McDowell v. Calderon, 197 F.3d 1253, 1256 (9th Cir. 1999) (en banc).


         Signal Peak argues amending the judgment is necessary to correct errors of law and fact and to prevent manifest injustice. Specifically, Signal Peak claims it was mistaken to issue an injunction without an equitable analysis, and insists the facts of this case justify neither vacatur of the Mining Plan EA nor a blanket injunction against the mining of federal coal with the Amendment 3 permit boundary. Although the Mining Plan EA was found to violate NEPA, "[t]he traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation." Monsanto, 561 U.S. at 157. The August 14 Order dealt extensively with the infirmities of the Mining Plan EA, but it did not specifically address the merits of an injunction. Even though Signal Peak raises the issue for the first time now, see Kona Enterprises, 229 F.3d at 890, an injunction analysis is appropriate.

         I. Injunction

         Before a permanent injunction may issue, "[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." Monsanto, 561 U.S. at 156-57 (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). An injunction must be "tailored to remedy the specific harm alleged." Park Vill. Apt. Tenants Ass 'n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (citation omitted) (emphasis in original).

         Mining of federal coal within the Amendment 3 permit boundary was enjoined because the Enforcement Office "ignored an important aspect of the problem by unreasonably limiting the scope of its analysis" of the indirect and cumulative effects of coal transportation and combustion. (Doc. 60 at 25.) As the following analysis shows, an injunction, tailored to fit the specific circumstances of this case, is warranted under the four-factor test.

         How the Mine operates is necessary to understand why the scope of the injunction is at issue. Mining takes place by a combination of continuous and longwall mining techniques: the first is used to prepare a coal seam for mining in longwall panels, and generally moves from north to south, while the second, which moves in the opposite direction, is used to extract coal in the panels once the development work has been completed. AR 021407. The longwall panels are large blocks of coal, approximately a quarter of a mile wide by three to four miles long. The coal seam extraction thickness ranges from 8 to 13 feet. See AR 021412. Development work puts underground passages, known as "entries" and "roads" along the longwall panels. (Doc. 70-1 at ¶ 11.) After the development work is complete, the longwall equipment is brought in and the coal composing the longwall panel is mined. (Id. at ¶ 21.) The development work must occur in advance of the longwall mining because it is used to install necessary infrastructure, including belt conveyors, pumps, electrical systems, and ventilation control devices. (Id. at ¶ 14.) That means that as longwall mining moves through a panel, development work must also advance in the adjacent, unmined panel so that when the operative panel has been exhausted, mining of the next panel can safely begin. (Id. at ¶¶ 23-29.) Importantly, most of the mining is on private unregulated land. Here, the mining is at a point that necessitates boring through federal coal to get at private coal. (See Exhibit A.)

         Both development work and longwall extraction are currently underway at the Mine within the Amendment 3 permit boundary.[2] The longwall work is occurring in Long Wall Panel 6, involves only private coal, and is not subject to injunction. Development work is underway in Section 8, at what is proposed to become the north end of Long Wall Panels 7 and 8. That development work is in federal coal, and was subject to the initial injunction. Critically, the longwall mining is scheduled to continue through private coal until approximately June 2019, at which point it will encounter the ...

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