747 F. Supp. 2d 1234
D. Colo.2010Background
- Navajo Nation spans over 27,000 square miles in Four Corners; mining resources on tribal lands led to leases and royalties.
- BHP Navajo Coal Company mined coal for the Four Corners Power Plant under a 1957 lease; mining began in 1963.
- OSM reviewed BHP's permit renewals and revisions under SMCRA and NEPA, with key actions in 2004 renewal and 2005 Area IV North expansion revision.
- 1989 EA and later EIS/EA documents formed the NEPA backdrop; 2004 renewal relied on categorical exclusion; 2005 revision triggered comprehensive NEPA analysis.
- Plaintiffs allege NEPA/APA violations due to inadequate public notice, failure to supplement analyses, and failure to analyze ethnographic and cultural impacts; they sought declaratory and injunctive relief plus an EIS.
- Court grants partial relief, vacating and remanding the 2005 Permit Revision EA/approval for further NEPA consideration; 2004 renewal deemed moot due to 2009 renewal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did OSM's 2005 Permit Revision EA violate NEPA/APA by not requiring an EIS? | Plaintiffs contend an EIS was required for Area IV North expansion. | OSM properly concluded no significant impact via EA and FONSI under NEPA guidelines. | Yes; court vacated and remanded for fuller NEPA analysis, including potential need for an EIS. |
| Was the EA deficient for not analyzing connected actions and a full range of alternatives? | Burnham Road realignment and other actions were connected and inadequately considered; alternatives were not meaningfully analyzed. | EA included some alternatives; asserted third alternative was effectively considered. | Defendants must remand to address connected actions and include a meaningful discussion of all reasonable alternatives, including with conditions. |
| Did NEPA public notice requirements fail for the 2005 Permit Revision? | Public notice was inadequate for tribal communities relying on Navajo language/media; public input was limited. | Notice complied with basic requirements; later notices improved. | Public notice inadequacy found; remand requires broader, culturally tailored public notice before further actions. |
| Did the record adequately address mitigation and impacts on tribal rights and cultural resources? | Mitigation plans were vague and contingent; hard look at cultural resources was lacking. | Ethnographic studies and tribal mitigation were ongoing; prior documents analyzed resources. | Court found lack of hard look; remand requires analysis of ethnographic mitigation measures and impacts in revised EA. |
| Is the 2004 Permit Renewal moot or capable of ongoing review? | The 2004 renewal remains subject to NEPA review and potential relief. | 2004 renewal superseded by 2009 renewal; moot. | Moot with respect to ongoing actions; no relief granted on 2004 renewal. |
Key Cases Cited
- Summers v. Earth Island Inst., 555 U.S. 488 (Supreme Court 2009) (standing and NEPA procedural considerations)
- Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) (NEPA review and hard look requirement)
- Krueger v. Krueger, 513 F.3d 1169 (10th Cir. 2008) (public involvement and NEPA procedural compliance)
- Catron Cty. Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996) (NEPA injury and environmental harm framework)
- Sierra Club v. Marsh, 872 F.2d 497 (First Circuit 1989) (NEPA and environmental risk from agency decisions)
- Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (Supreme Court 1998) (hard look at environmental analysis under NEPA)
- S. Utah Wilderness Alliance v. Office of Surface Mining, 620 F.3d 1227 (10th Cir. 2010) (redressability and NEPA procedural review standard)