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Tenth Circuit Dismissal Delays Navajo Mine Expansion

By Robyn Hagan Cain on August 30, 2011 | Last updated on March 21, 2019

It’s funny what we consider a victory in court. So many times, victory isn’t a decision on the ultimate issue, it’s a procedural step that enables or delays an action.

Take, for example, last week’s Tenth Circuit Court of Appeals decision in Diné Citizens Against Ruining our Environment v. Klein, a case dealing with a mining permit. The Tenth Circuit ruled last week that it did not have jurisdiction to consider an issue that a district court remanded to a federal agency. There hasn’t been a decision on the ultimate issue, yet Diné Citizens Against Ruining Our Environment and San Juan Citizens Alliance (Citizens) are claiming victory.

So what exactly happened to prompt this talk of victory and defeat?

The Navajo Mine is a large open pit coal mine on tribal reservation lands in northwestern New Mexico. BHP Navajo Coal Company (BNCC) operates the mine under a long-standing lease with the Navajo Nation and a surface coal-mining permit issued by the Office of Surface Mining Reclamation and Enforcement (OSM).

In 2005, OSM approved BNCC's application to revise the mining plan at its Navajo Mine. Citizens sought judicial review under the Administrative Procedures Act (APA). The district court concluded OSM had violated the National Environmental Policy Act (NEPA) in approving the application and remanded the case for further proceedings.

In July 2007, Citizens filed this lawsuit. BNCC intervened. The district court concluded OSM's approval of BNCC's application was the type of action which normally requires preparation of an Environmental Impact Statement (EIS) under NEPA rather than a less comprehensive Environmental Assessment (EA).

The court then turned to the 2005 EA, concluding it was deficient in several respects. It remanded the matter to OSM to correct the deficiencies and reassess its finding of no significant impact (FONSI) upon which it approved the application. BNCC appealed. Judicial jujitsu ensued.

The Tenth Circuit Court of Appeals dismissed BNCC's appeal because the circuit's jurisdiction, "only extends to review of final decisions of the district courts." While under Trout Unlimited there is a narrow exception for issues that are "both urgent and important," the Tenth Circuit found that this issue was important, but not urgent.

The ruling will halt BNCC's efforts to expand its mining operations in northwestern New Mexico while the case toils in the federal agency, and before it is again challenged in the district and circuit courts.

And that, friends, is what lawyers in Dine Citizens Against Ruining our Environment v. Klein call a victory (or defeat).

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