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

United States District Court, D. Montana, Great Falls Division

April 19, 2018

CITIZENS FOR CLEAN ENERGY, et al., and THE NORTHERN CHEYENNE TRIBE, Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR, et al., Federal Defendants, and STATE OF WYOMING, et al., Defendant-Intervenors. STATE OF CALIFORNIA, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR, et al., Federal Defendants, and STATE OF WYOMING, et al., Defendant-Intervenors.

          ORDER

          Brian Morris United States District Court Judge

         INTRODUCTION

         The Court held a hearing on December 13, 2018, on cross-motions for summary judgment filed in this consolidated action brought by the Center for Biological Diversity, Citizens for Clean Energy, Defenders of Wildlife, EcoCheyene, Montana Environmental Information Center, Sierra Club, the Northern Cheyenne Tribe, and WildEarth Guardians (collectively “Organizational Plaintiffs”), State of California, State of Washington, and the State of New Mexico (collectively “State Plaintiffs”), and by Defendants Secretary of Interior Ryan Zinke, the U.S. Department of Interior, the U.S. Bureau of Land Management (collectively “Federal Defendants”), the State of Wyoming, the State of Montana (collectively “State Defendants”), and the National Mining Association (collectively “Defendants”). For ease of reference the Court will use the generic terms Plaintiffs and Defendants unless an issue requires the Court to identify a specific party.

         A. Procedural History

         Plaintiffs filed their Complaint in CV-17-30-GF-BMM on March 29, 2017. (Doc. 1.) The Court granted the State of Wyoming's Motion to Intervene (Doc. 25) on May 30, 2017. (Doc. 30.) The Court granted the parties Joint Motion to Consolidate Cases (Doc. 33) on June 2, 2017. (Doc. 34.) The Court granted National Mining Association's Motion to Intervene (Doc. 37) on July 10, 2017. (Doc. 41.) The Court granted the State of Montana's Motion to Intervene (Doc. 39) on July 10, 2017. (Doc. 42.)

         State Plaintiffs filed their Motion for Summary Judgement on July 27, 2018. (Doc. 115.) Organizational Plaintiffs filed their Motion for Summary Judgment on July 27, 2018. (Doc. 117.) Federal Defendants filed their Cross Motion for Summary Judgment on September 7, 2018. (Doc. 123.) State Defendants filed their Cross Motion for Summary Judgment on September 19, 2018. (Doc. 125.) National Mining Association filed its Cross Motion for Summary Judgment on September 18, 2018. (Doc. 127.)

         B. Factual Background

         The United States Government owns an approximately 570-million-acre coal mineral estate. (Doc. 118 at 12.) The Bureau of Land Management (“BLM”) administers federal coal leases on the Government's estate. (Doc. 118 at 12.) The BLM possess broad discretion to lease public land for coal mining. (Doc. 118 at 12.) The BLM remains constrained, however, by the Federal Lands Policy and Management Act (“FLMPA”) and the Mineral Leasing Act of 1920 (“MLA”) (as amended by the Federal Coal Leasing Amendment Act). (Doc. 118 at 13.)

         BLM currently manages 306 active federal coal leases in ten states. (Doc. 118 at 13.) The BLM managed leases account for an estimated 7.4 billion tons of recoverable coal. (Doc. 118 at 13.) Over forty percent of the coal produced in the United States comes from federal land. AR-00004. Over eighty-five percent of coal production on federal land in the United States occurs in the Powder River Basin shared by Montana and Wyoming. Id. BLM possessed forty-four pending lease and lease-modification applications in February of 2017. (Doc. 118 at 14.) BLM last commenced a comprehensive environmental review for the federal coal program in 1979. (Doc. 118 at 14.)

         1. Secretarial Order 3338

         Former Secretary of the Interior Sally Jewell issued Secretarial Order 3338 (hereafter “the Jewell Order”) on January 15, 2016. (Doc. 118 at 16.) The Jewell Order directed BLM to prepare a programmatic environment impact statement (“PEIS”) that addressed at a minimum the following issues:

(a) how, when, and where to lease coal; (b) fair return to the American public for federal coal; (c) the climate change impacts of the federal coal program, and how best to protect the public lands from climate change impacts; (d) the externalities related to federal coal production, including environmental and social impacts; (e) whether lease decision should consider whether the coal would be for export; and (f) the degree to which federal coal fulfills the energy needs of the United States.

(Doc. 118 at 17.) the Jewell Order imposed a moratorium on new coal leasing until completion of the PEIS. (Doc. 118 at 16.)

         2. Secretarial Order 3348

         President Trump issued an executive order on March 28, 2017, commanding Secretary of the Interior Ryan Zinke to “take all steps necessary and appropriate to amend or withdraw” the Jewell Order. (Doc. 118 at 20.) Secretary Zinke subsequently issued Secretarial Order 3348 (hereafter “the Zinke Order”) on March 29, 2017. AR-00001-2 The Zinke Order determined that “the public interest is not served by halting the Federal coal program for an extended time[.]” Id. The Zinke Order further reasoned that Federal Defendant's consideration of potential improvements to the coal leasing program did not require a PEIS. Id. The Zinke Order lifted the moratorium and directed BLM to “process coal lease applications and modifications expeditiously in accordance with regulations and guidance existing before the issuance of” the Jewell Order. Id.

         C. Legal Background

         A series of federal statutes governs resolution of these motions.

         1. National Environmental Policy Act

         The National Environmental Policy Act (“NEPA”) requires federal agencies to “take a hard look” at the “environmental consequences” of their decision-making. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (internal citations omitted). The statute “does not mandate particular results.” Id. NEPA instead “prescribes the necessary process” that agencies must follow to identify and evaluate “adverse environmental effects of the proposed action.” Id. Such effects may be direct, “indirect, ” or “cumulative.” 40 C.F.R. § 1502.16.

         2. Mineral Leasing Act

         The MLA governs the leasing of public land for coal production. The MLA authorizes the Secretary of the Interior (“Secretary”) to divide lands that “have been classified for coal leasing into leasing tracts of such a size as [the Secretary] finds appropriate and in the public interest and which will permit the mining of coal.” 30 U.S.C. § 201(a)(1). The MLA requires the Secretary, “in his discretion, upon the request of any qualified application or his own motion” to “offer such lands for leasing.” Id. The MLA requires the Secretary to “award leases thereon by competitive bidding.” Id. The MLA bars the Secretary from awarding a lease to a less than fair market value bid. Id. “No lease shall be held unless the lands containing the coal deposits have been included in a comprehensive land-use plan and such sale is compatible with such plan.” 30 U.S.C. § 201(3)(A)(i).

         3. Federal Land Policy and Management Act

         The Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq., dictates the framework under which BLM manages public lands. It is the policy of the United States, pursuant to FLPMA, that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.” 43 U.S.C. § 1701(a)(8). FLPMA further states that the policy of the United States requires that the “United States receive fair market value of the use of the public lands and their resources.” 43 U.S.C. § 1701(a)(8).

         BLM accomplishes this directive by developing, maintaining, and revising RMPs. 43 U.S.C. § 1712(a); 43 C.F.R. § 1601.0-5(n). RMPs “guide and control future management actions.” 43 C.F.R. § 1601.0-2. RMPs establish “[l]and areas for limited, restricted or exclusive use” and determine “[a]llowable resource uses (either singly or in combination) and related levels of production or use to be maintained.” 43 C.F.R. § 1601.0-5(n)(1)-(2).

         DISCUSSION

         A court should grant summary judgment where the movant demonstrates that no genuine dispute exists “as to any material fact” and the movant is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment remains appropriate for resolving a challenge to a federal agency's actions when review will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006).

         The Administrative Procedure Act (“APA”) standard of review governs Plaintiffs' claims. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481, 496 (9th Cir. 2011); Bennett v. Spear, 520 U.S. 154, 174 (1997). The APA instructs a reviewing court to “hold unlawful and set aside” agency action deemed “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A rational connection must exist between the facts found and the conclusions made in support of the agency's action. Kraayenbrink, 632 F.3d at 481. The Court reviews the Department's compliance with NEPA, the MLA, and FLPMA under the arbitrary and capricious standard pursuant to the APA. See Center for Biological Diversity v. Nat'l. Highway Traffic Safety Admin., 538 F.3d 1172, 1194 (9th Cir. 2008). Federal courts shall “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Agency action “includes the whole or part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Courts have interpreted claims under 5 U.S.C. § 706(1) to compel “discrete agency action that [the agency] is required to take.” Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 65 (2004).

         I. Article III Standing

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


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