A federal judge in Montana gave the U.S. Office of Surface Mining Reclamation and Enforcement (OSMRE) an extended deadline of 240 days to come up with an improved environmental analysis or she will effectively shut down mining on part of Cloud Peak Energy’s Spring Creek coal mine in the Montana end of the Powder River Basin.
Plaintiffs including WildEarth Guardians initiated this lawsuit in the U.S. District Court for the District of Montana after OSM approved a mining plan modification adding new reserve area for the Spring Creek mine. The environmental groups, the parties sued and intervenors including the state of Montana, Cloud Peak’s Spring Creek Coal subsidiary and the National Mining Association had moved variously for summary judgment.
On Oct. 23, 2015, Magistrate Judge Carolyn Ostby issued Findings and Recommendations on the pending motions. Ostby concluded that the OSM violated the public participation and notice provisions of the National Environmental Policy Act (NEPA) by not notifying the public of a Finding of No Significant Impact (FONSI) decision. Judge Ostby also concluded that OSM failed to take the requisite “hard look” at the consequences of approving the mining plan amendment.
Because of these NEPA violations, Judge Ostby recommended that this court grant in part the motions filed by the plaintiffs and deny the motions filed by the federal defendants, the state and Spring Creek. To remedy the NEPA violations, Judge Ostby recommended that this court defer vacating the mining plan approval for 180 days to allow the federal defendants to correct the NEPA violations.
Spring Creek objected to four of Judge Ostby’s conclusions.
- First, Spring Creek argued that the federal defendants’ failure to notify the public about the FONSI was harmless error.
- Second, Spring Creek argued that Judge Ostby erred by not examining the entire administrative record when she determined that the OM failed to take a “hard look.”
- Third, Spring Creek argued that the plaintiffs waived their right to challenge OSM’s approval of the mining plan amendment.
- Fourth, Spring Creek objected to Judge Ostby’s proposed remedy.
The state and the federal defendants did not challenge Judge Ostby’s conclusions regarding the NEPA violations, but objected to the proposed remedy.
U.S. District Judge Susan Watters in her Jan. 21 decision adopted the Findings and Recommendations with one exception. Wattees modified the federal defendants’ deadline to correct the NEPA violations from 180 days to 240 days.
On the point of no public notice about the FONSI, Judge Watters wrote: “The Court disagrees with Spring Creek and finds that the lack of public notification was not harmless. One of NEPA’s ‘twin aims’ is to ensure ‘that the agency will inform the public that it has indeed considered environmental concerns in its decision making process.'”
On the “hard look’ issue, Judge Watters wrote: “This Court disagrees and finds that Judge Ostby correctly concluded that OSMRE failed to take a hard look at the mining plan amendment under NEPA. … By relying on a document that specifically did not analyze ‘a detailed site-specific mining and reclamation plan,’ OSMRE did not provide ‘a convincing statement of reasons to explain why [the] project’s impacts are insignificant.’ … The Court is precluded from speculating what other information OSMRE may have looked to prior to issuing the FONSI. Accordingly, the Court agrees with Judge Ostby that based on the administrative record, OSMRE failed to take the requisite hard look.”
Spring Creek argued that the plaintiffs waived their right to challenge the nonpublication of the FONSI by not participating in the administrative process leading to the mining plan’s approval. But Judge Watters said OSMRE’s lack of public notification of the FONSI prevented the plaintiffs from raising their concerns.
The federal defendants asked for 240 days to complete a corrective NEPA analysis. The judge wrote: “Given the Federal Defendants’ representations, 240 days is a more realistic deadline. Further, the Court finds that it would be appropriate to allow the Federal Defendants an opportunity to show good cause to extend the deadline. The Court cautions that the deadline will not automatically be extended; the Federal Defendants must make a showing that they have diligently attempted to complete the process within 240 days and subsequent developments have delayed the process.”
The federal defendants here include: Al Klein, in his official capacity as Western Regional Director for OSMRE; and Sally Jewell, who in her capacity as U.S. Secretary of the Interior oversees OSMRE.
In 2005, Spring Creek Coal filed an application to lease an additional 1,207.5 acres of federal coal in order to extend the life of the Spring Creek mine. The U.S. Bureau of Land Management then prepared an Environmental Assessment, with OSM as a cooperating agency in completing this EA. After completing the EA, the BLM issued the lease to the company in late 2007. OSM later signed off on permitting for this mine expansion area based on that EA.