Citizens for Constitutional Integrity v. United States

70 F.4th 1289

CITIZENS FOR CONSTITUTIONAL INTEGRITY;Southwest Advocates, Inc., Plaintiffs - Appellants, v. UNITED STATES of America; the Office of Surface Mining Reclamation and Enforcement;Debra Haaland, in her official capacity as Secretary of the Department of the Interior;Glenda Owens, in her official capacity as Acting Director of the Officeof Surface Mining Reclamation and Enforcement;Kate MacGregor, in her official capacity as Acting Assistant Secretary for Landand Minerals Management, Defendants - Appellees.GCC Energy, LLC, Intervenor-Appellee.

No. 22-1056

United States Court of Appeals, Tenth Circuit

FILED June 12, 2023

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-cv-00923-RM-STV)

Jared S. Pettinato, The Pettinato Firm, Washington, D.C., for Plaintiffs - Appellants.

Sommer H. Engels, Attorney, Environment and Natural Resources Division, U.S. Department of Justice (Todd Kim, Assistant Attorney General, Bridget K. McNeil, Attorney, Environment and Natural Resources Division, with her on the brief), Washington, D.C., for Defendants - Appellees.

Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.

Citizens for Constitutional Integrity and Southwest Advocates, Inc. (Plaintiffs) appeal the denial of their motion for temporary relief by the United States District Court for the District of Colorado. The Department of the Interior's Office of Surface Mining Reclamation and Enforcement (the Office) granted a coal-mining permit for an expansion of the King II Mine (the Mine) in the Dunn Ranch Area of La Plata County, Colorado. Plaintiffs seek to enjoin mining under the expansion and ultimately vacate the permit. They allege that the Office conducted flawed assessments of the probable hydrologic impacts of the expansion, contrary to the requirements of the Surface Mining Control and Reclamation Act (the SMCRA or the Act), 30 U.S.C. § 1201 et seq. As authority for their motion, they invoke the Act's citizen-suit provision, 30 U.S.C. § 1270, or, alternatively, the Administrative Procedure Act (the APA), 5 U.S.C. § 551 et seq.

Exercising jurisdiction under 28 U.S.C. § 1292(a)(1),¹ we hold that Plaintiffs are not entitled to temporary relief because their claims under the SMCRA and the APA are not likely to succeed on the merits. Plaintiffs cannot use § 1270 to challenge discretionary action by the Office (which probably encompasses issuance of the permit); and it is unlikely that issuance of the permit can be challenged under the APA because there appears to be an adequate remedy under the SMCRA, though Plaintiffs did not pursue that remedy. We therefore affirm the district court's denial of Plaintiffs' motion for temporary relief.

I. BACKGROUND

The SMCRA "is a comprehensive statute that regulates all surface coal mining operations" in the United States. United States v. Navajo Nation, 556 U.S. 287, 300, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009). It "establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs." Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). "The Secretary [of the Interior], acting through the Office," administers and enforces the Act and its implementing regulations. 30 U.S.C. § 1211(c)(1).²

Any entity that wishes to engage in coal-mining operations on lands within the Office's jurisdiction needs a permit issued by the Office. See id. § 1256(a). Although GCC Energy, LLC, the operator of the Mine, had an existing permit for the Mine, the Dunn Ranch Area expansion would increase the size of the Mine by 2,462 acres, so GCC Energy needed to apply for another permit. See id. § 1261(a)(3). GCC Energy submitted its application for a revised and expanded permit on September 25, 2019. The Office approved the new permit on December 8, 2020. In doing so, the Office made several written findings "[b]ased on its review of the permit revision application." Aplees. App. at 78. Among these findings were that "[t]he revision application is accurate and complete, and the applicant has complied with all requirements of SMCRA and the Indian Lands Program for the permit revision." Id. The Office also found that the cumulative-hydrologic-impact assessment released earlier in 2020 (but analyzing the hydrologic effects of a March 2017 permit-revision application) did not need to be updated to assess the hydrologic impacts of the Dunn Ranch Area expansion. And it determined that two environmental assessments, conducted in 2011 and 2019, "adequately address[ed] the impacts of the mine operation." Id.

Plaintiffs filed this suit on March 31, 2021. On November 10, 2021, they filed a motion seeking preliminary injunctive relief under one of the SMCRA's temporary-relief provisions, 30 U.S.C. § 1276(c). The district court denied the motion. See Citizens for Const. Integrity v. United States, No. 21-cv-00923-RM-STV, 2022 WL 474697, at *2-3 (D. Colo. Feb. 16, 2022). Plaintiffs timely appealed.

II. DISCUSSION

A. Standard of Review and Requirements for Relief

A grant of temporary relief under the SMCRA—like a grant of a preliminary injunction—stays action "pending final determination of the proceedings." 30 U.S.C. § 1276(c); cf. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held."). When reviewing a district court's grant or denial of a preliminary injunction, "we scrutinize abstract legal matters de novo, findings of fact for clear error, and judgment calls with considerable deference to the trier. We will disturb the ruling below only if the court abused its discretion." Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 10 (1st Cir. 2013) (citation and internal quotation marks omitted). We apply the same standard of review to a grant or denial of relief under § 1276(c).

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). But 30 U.S.C. § 1276(c) provides that "[i]n the case of a proceeding to review any order or decision issued by the [Office] under [the SMCRA]," a "court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings" if three conditions are met: (1) "all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief"; (2) "the person requesting such relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding"; and (3) "such relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources."

The parties disagree about which test applies here; Plaintiffs argue for the application of § 1276(c)'s modified three-factor test (so that, presumably, they need not show irreparable harm and the court need not balance the equities), while the Office argues for the traditional four-factor test (based on its contention that § 1276(c) is not available to Plaintiffs). The district court did not decide this issue, see Citizens, 2022 WL 474697, at *2, and neither do we. Both standards require Plaintiffs to demonstrate that they are likely to succeed on the merits of their claims. Plaintiffs have failed to satisfy this condition.

B. Likelihood of Success on the Merits

Plaintiffs allege that the Office's approval of the Dunn Ranch Area expansion violated four provisions of the SMCRA—30 U.S.C. §§ 1257(b)(11), 1260(b)(1), 1260(b)(3), and 1265(b)(10)—and was arbitrary and capricious in approving the expansion without investigating why GCC Energy would need to acquire six times the quantity of water rights that it was using, see Aplts. Br. at 26, and in "fail[ing] to analyze the volume of diverted irrigation water that would otherwise replenish underground aquifers," id. at 34. Plaintiffs contend that they may use 30 U.S.C. § 1270(a)(2), one of the SMCRA's citizen-suit provisions, to advance all these arguments.³ They argue in the alternative that if they cannot obtain review under the SMCRA, they may proceed under the cause of action provided by the APA in 5 U.S.C. § 702. In response, the Office argues that § 1270(a)(2) does not cover Plaintiffs' claims of arbitrary and capricious action; that a different provision of the Act, 30 U.S.C. § 1276(a)(2),⁴ covers Plaintiffs' arbitrary-and-capricious claims (although Plaintiffs have not invoked it—probably because they have failed to comply with the prerequisites to filing suit under that provision); and that the availability of the cause of action under § 1276(a)(2) precludes Plaintiffs from availing themselves of the APA cause of action. Because the Office appears to be correct on these points and because the Office did not violate the four specific provisions relied on by Plaintiffs, we hold that the district court did not abuse its discretion in denying Plaintiffs' motion for temporary relief.⁵

1. 30 U.S.C. § 1270(a)(2)

As we shall explain in the following discussion, a plaintiff can proceed under § 1270(a)(2) to compel the Office to perform a nondiscretionary duty. But a plaintiff cannot use that provision to advance an argument that the Office acted arbitrarily or capriciously in performing a discretionary action. The latter sort of claim must proceed, if at all, under some other statute. And because, as we shall see, the...