DINE CITIZENS AGAINST RUINING OUR ENV. v. Klein

676 F.Supp.2d 1198

DINE CITIZENS AGAINST RUINING OUR ENVIRONMENT, San Juan Citizens Alliance, Plaintiffs, v. Al KLEIN, in his official capacity as Western Regional Director, Office of Surface Mining Reclamation and Enforcement, Denver, Colorado, Office of Surface Mining Reclamation and Enforcement, a federal agency within the U.S. Department of Interior, Defendants Arizona Public Service Company and BHP Navajo Coal Company, Intervenors.

Civil Action No. 07-cv-01475-JLK.

United States District Court, D. Colorado.

September 30, 2009.

Brad A. Bartlett, Attorney at Law, Travis Earl Stills, Durango, CO, for Plaintiffs.

Terry Fox, U.S. Attorney's Office, Denver, CO, for Defendants.

Brian H. Potts, Douglas B. Clark, Foley & Lardner, LLP, Madison, WI, Paul Bargren, Thomas L. Shriner, Jr., Foley & Lardner, LLP, Milwaukee, WI, Jonathan William Rauchway, Scot W. Anderson, Davis Graham & Stubbs, LLP, Denver, CO, William C. Scott, Walter E. Stern, III, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Intervenors.

ORDER ON MOTIONS TO DISMISS

KANE, Senior District Judge.

This action concerns alleged violations of the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., by the Department of Interior's Office of Surface Mining Reclamation and Enforcement ("OSM") in connection with OSM's permitting of mining and related operations at the Navajo Mine. It is before me on the motion to dismiss or to transfer venue filed by OSM and Al Klein, its Western Regional Director, (collectively "Federal Defendants") and separate motions to dismiss filed by intervenors Arizona Public Service Company ("APS") and BHP Navajo Coal Company ("BHP"). Having carefully considered the motions, related briefing, and all applicable legal authorities, and being fully advised in the premises, I deny the motions in part and grant them in part.

Background

Intervenor BHP operates the Navajo Mine, a large open pit coal mine operation, on reserved tribal lands in northwestern New Mexico pursuant to a long-standing lease with the Navajo Nation ("Tribe"). OSM has permitting and other authority over BHP's mine operations pursuant to the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1201 et seq. Intervenor APS operates the Four Corners Power Plant, which is supplied with coal from the Navajo Mine.

In September 2004, OSM's Western Regional office in Denver approved BHP's application to renew its existing permit to conduct mining and related operations at the Navajo Mine. OSM did not conduct a NEPA analysis of the environmental impacts of its 2004 permit renewal decision based on its determination, reported in its September 2004 Permit Renewal Decision Document, that the permit renewal was categorically exempt from NEPA review. Operations permitted by OSM through the 2004 renewal include the permanent disposal of fly ash, scrubber sludge, bottom ash and other solid waste, referred to as "Coal Combustion Waste" or "CCW," from APS's Four Corners Power Plant in mined out coal pits in the permit area. The area subject to the 2004 mine permit renewal is approximately 13,430 acres. The permit renewal approves BHP's Navajo Mine operations through September 2009.

In December 2004, BHP submitted an additional permit application to OSM in which it requested a revision to its Navajo Mine permit to allow it to expand mining operations into a 3,800 acre area known as "Area IV North." The application included a request to relocate a public road, the Burnham Road, to facilitate mining activities in this area.

OSM's Western Regional office in Denver approved BHP's permit revision application on October 7, 2005. OSM's Decision Document included a Finding of No Significant Impact ("FONSI"), in which the agency reported its conclusion that the proposed expansion of the mine into Area IV North would not have an impact on the quality of the human environment and thus that an Environmental Impact Statement ("EIS") was not required under NEPA. This FONSI determination was based on a 14-page Environmental Assessment ("EA") that was also included in the Decision Document.

OSM imposed two conditions of relevance in its 2005 decision approving the requested permit revision. One was that BHP complete a thorough ethnographic study of Area IV North and develop, approve and implement mitigation/data recovery plans for the area, before causing any disturbance there. Plaintiffs allege this study and mitigation plan (collectively "Ethnographic Studies") have been completed. The second 2005 permit condition required BHP to follow OSM's regulatory procedures for relocating a public road before any disturbance of the existing Burnham Road.

In addition, Plaintiffs allege OSM has required that a Cumulative Hydrologic Impacts Analysis ("CHIA") be performed with respect to Area IV North or the Navajo Mine as a whole. This study would reportedly evaluate the cumulative impacts of continued mining in these areas on affected surface and ground waters.

On July 13, 2007, Plaintiffs Dine Citizens Against Ruining Our Environment and San Juan Citizen Alliance filed this action. Plaintiffs initially asserted five claims alleging the Federal Defendants violated NEPA and the APA by issuing the 2004 mine permit renewal and 2005 mine permit revision without complying with certain NEPA environmental review requirements or satisfying NEPA's public notice and participation requirements. In their First Amended Complaint, Plaintiffs added two new claims alleging the Federal Defendants violated both Acts by failing to supplement or otherwise include in their mine-related NEPA analyses the Area IV North Ethnographic Studies, the Burnham Road relocation proposal and the CHIA.

As relief for their claims, Plaintiffs seek declaratory judgment that the Federal Defendants violated NEPA and the APA in issuing the 2005 permit revision and 2004 permit renewal, in failing to supplement the NEPA analyses relating to these decisions, and by engaging in a continuing pattern and practice of violating NEPA's public notice requirements in taking federal action regarding the Navajo Mine. Plaintiffs also seek to enjoin implementation of the 2005 permit revision regarding mining in Area IV North until such time as OSM has complied with NEPA. With respect to the 2004 permit renewal, Plaintiffs seek to enjoin any action that authorizes disposal of CCW in the mine permit area, the relocation of Navajo Nation tribal members or blasting operations near tribal member residences until compliance with NEPA is achieved. Plaintiffs do not seek to enjoin operation of the Navajo Mine.

Plaintiffs further request an order requiring the Federal Defendants to provide specified public notice and involvement under NEPA for permitting actions regarding the Navajo Mine, including advance public notice of proposed agency actions and publication of such notices in tribal and non-tribal periodicals in both English and the Navajo language. Finally, Plaintiffs request that I order Defendants to develop an EIS for the Navajo Mine in its entirety, including the Area IV North expansion.

In separate motions, the Federal Defendants and Intervenors argue all or some of Plaintiffs' claims must be dismissed because: the court lacks subject matter jurisdiction to decide them; the claims regarding OSM's 2004 and 2005 permitting decisions are barred by Plaintiffs' failure to exhaust administrative remedies, the doctrine of laches and/or the applicable the statute of limitations; Plaintiffs' claims seeking supplementation of OSM's NEPA analyses are premature; the Navajo Nation, allegedly an indispensable party to this action, cannot be joined; and venue in this court is improper. Each asserted ground for dismissal is examined below.

Discussion

I. Jurisdictional Challenge

The Federal Defendants and Intervenors initially challenge this court's subject matter jurisdiction to decide Plaintiffs' claims that OSM violated NEPA and the APA in connection with its 2004 and 2005 permitting decisions.

One foundation of this jurisdictional challenge is that Plaintiffs were required to assert their NEPA claims under SMCRA, rather than the APA. Because NEPA does not provide a private cause of action, however, Plaintiffs claims are properly asserted pursuant to the APA. See Colorado Farm Bureau Fed'n v. United States Forest Serv., 220 F.3d 1171, 1173 (10th Cir.2000). Defendants/Intervenors' argument that the APA has no application here because SMCRA provides an avenue for judicial review of OSM's permitting decisions conflicts with the plain language of the APA, which provides that both "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in court" are subject to judicial review under the APA. 5 U.S.C. § 704 (emphasis added); see Ohio River Valley Envtl. Coalition, Inc. v. Kempthorne, 473 F.3d 94, 100-101 (4th Cir.2006); see also Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir.1997) (noting many courts recognize NEPA challenges are properly asserted under APA). In addition, neither Defendants nor Intervernors identify any provision in SMCRA that expressly supercedes or preempts review of OSM's NEPA compliance under the APA. That judicial review of OSM's permitting decisions is available under SMCRA does not, therefore, bar review under the APA of OSM's NEPA compliance in rendering these decisions. Ohio River Valley, 473 F.3d at 100-101 (rejecting proposition that availability of review under SMCRA bars APA review); see also Save Our Cumberland Mts. v. Norton, 297 F.Supp.2d 1042, 1047 n. 2 (E.D.Tenn.2003) (distinguishing between SMCRA and its remedies and suit seeking recovery under NEPA).

The Federal Defendants assert that even if Plaintiffs properly asserted their NEPA claims under the APA, subject matter jurisdiction is still lacking because the Supreme Court has held the APA...