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WILDEARTH GUARDIANS, ET AL. 196 IBLA 1 Decided August 26, 2020

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WILDEARTH GUARDIANS, ET AL. 196 IBLA 1 Decided August 26, 2020 WILDEARTH GUARDIANS, ET AL. 196 IBLA 1 Decided August 26, 2020 WILDEARTH GUARDIANS, ET AL. IBLA 2016-279 Decided August 26, 2020 Appeal from a decision of the Acting State Director, Utah State Office, Bureau of Land Management, authorizing a competitive coal lease sale. UTU-84102. Affirmed. APPEARANCES: Samantha Ruscavage-Barz, Esq., WildEarth Guardians, Santa Fe, New Mexico, for WildEarth Guardians; Michael A. Saul, Esq., Center for Biological Diversity, Denver, Colorado, for Center for Biological Diversity; Aaron M. Paul, Esq., and Neil Levine, Esq., Grand Canyon Trust, Denver, Colorado, and Mary H. O’Brien, Grand Canyon Trust, Castle Valley, Utah, for Grand Canyon Trust; Nathaniel Shoaff, Esq., Sierra Club, Oakland, California, for Sierra Club; Sarah Goldberg, Esq., and William Prince, Esq., Dorsey & Whitney LLP, Salt Lake City, Utah, and Michael Drysdale, Esq., Dorsey & Whitney LLP, Minneapolis, Minnesota, for Canyon Fuel Company, LLC; Kathy A.F. Davis, Esq., Anthony Rampton, Esq., Roger Fairbanks, Esq., and Jake M. Garfield, Esq., Utah Attorney General’s Office, Salt Lake City, Utah, for the State of Utah; Molly E. Nixon, Esq., Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., and John Steiger, Esq., Office of the Regional Solicitor, U.S. Department of the Interior, Salt Lake City, Utah, for the Bureau of Land Management. OPINION BY ACTING ADMINISTRATIVE JUDGE LEVINE1 WildEarth Guardians, Center for Biological Diversity, Grand Canyon Trust, and the Sierra Club (collectively, WildEarth) appeal from a Record of Decision, DOI-BLM-UT- 070-2008-14, issued by the Utah State Office of the Bureau of Land Management (BLM) 1 Administrative Judge Haugrud took no part in the consideration or decision of this appeal. 196 IBLA 1 IBLA 2016-279 on August 12, 2016. The decision authorized a competitive lease sale of 6175.39 acres of Federal coal reserves underlying National Forest lands in central Utah. WildEarth asserts that BLM violated the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the Federal Land Policy and Management Act of 1976 (FLPMA) by not designating the lands at issue as unsuitable for surface coal mining operations. WildEarth also asserts that BLM violated the National Environmental Policy Act (NEPA) by failing to take a hard look at the air quality impacts resulting from transportation, combustion, and export of the coal that will be produced through the lease sale, and at the climate change effects of the lease sale. Because WildEarth has not demonstrated that BLM’s decision violated SMCRA, FLPMA, or NEPA, we affirm BLM’s decision. BACKGROUND Legal background The Secretary of the Interior, acting through BLM, is authorized to make certain Federal lands available for coal leasing.2 One way in which such leases are issued is through a process called leasing by application.3 Under this process, after receiving a valid application to lease a particular tract, BLM must decide whether to make the tract available for competitive bidding through a lease sale.4 If the tract is located within a National Forest, BLM must obtain the consent of the U.S. Forest Service before issuing a lease, and may only issue the lease subject to conditions prescribed by the Forest Service.5 Once a lease is issued, the lessee must 2 30 U.S.C. § 201(a)(1). All citations to statutes and regulations in this decision are to the current edition, which is 2018 for statutes and 2019 for regulations. 3 See generally 43 C.F.R. Subpart 3425. 4 See id. § 3425.4(b); see also 30 U.S.C. § 201(a)(1) (“The Secretary of the Interior . shall award leases . by competitive bidding.”); Administrative Record (AR), BLM Exhibit 2, BLM and Forest Service, Final Supplemental Environmental Impact Statement for the Leasing and Underground Mining of the Greens Hollow Federal Coal Lease Tract, UTU-84102 at 19 (February 2015) (Final SEIS) (“The District Manager of the BLM must decide . [w]hether or not to offer the tract for competitive leasing . .”). 5 See 30 U.S.C. § 201(a)(3)(A)(iii); 43 C.F.R. §§ 3400.3-1, 3425.3(b). 196 IBLA 2 IBLA 2016-279 follow a separate mine permitting process, which includes both state and federal components, before it may begin mining the coal.6 SMCRA governs the conduct of “surface coal mining operations” on both Federal and non-Federal lands.7 “[S]urface coal mining operations” include not only “activities conducted . in connection with a surface coal mine,” but also “surface operations and surface impacts incident to an underground coal mine.”8 SMCRA requires the Secretary of the Interior to “conduct a review of the Federal lands to determine . whether there are areas on Federal lands which are unsuitable for all or certain types of surface coal mining operations.”9 If the Secretary finds “an area on Federal lands to be unsuitable for all or certain types of surface coal mining operations,” the Secretary must “withdraw such area or condition any mineral leasing . in a manner so as to limit surface coal mining operations on such area.”10 SMCRA’s implementing regulations specify the timing and content of this review, which is commonly referred to as an unsuitability review. As relevant to this appeal, the regulations require the unsuitability review to be conducted “[d]uring . the environmental assessment conducted for a specific lease application.”11 The regulations also list twenty criteria that BLM must consider as part of the review. At issue in this appeal is criterion number 15, also known as the “(o)(1) criterion” for the subsection of the regulation in which it appears, which states: Federal lands which the surface management agency and the state jointly agree are habitat for resident species of fish, wildlife and plants of high interest to the state and which are essential for maintaining these priority wildlife and plant species shall be considered unsuitable. 6 See Final SEIS, supra note 4, at 4, 298; AR, BLM Exhibit 1, BLM, Record of Decision DOI-BLM-UT-070-2008-14 at 4 (Aug. 12, 2016) (BLM ROD). 7 See generally 30 U.S.C. § 1202. 8 Id. § 1291(28)(A); accord 43 C.F.R. § 3400.0-5(mm). 9 30 U.S.C. § 1272(b). 10 Id.; see also § 1272(e) (prohibiting new surface coal mining operations on National Forest lands, subject to certain exceptions). 11 43 C.F.R. § 3461.3-1(b). 196 IBLA 3 IBLA 2016-279 A lease may be issued if, after consultation with the state, the surface management agency determines that all or certain stipulated methods of coal mining will not have a significant long-term impact on the species being protected.[12] The SMCRA regulations also provide that on lands whose surface is managed by another federal agency, BLM must comply with the surface management agency’s land use plan when conducting a coal lease sale.13 In addition to SMCRA, BLM must also comply with FLPMA when deciding whether to issue a coal lease. FLPMA is BLM’s organic act, guiding the agency’s management of the public lands.14 The “public lands,” in this context, include “any land and interest in land owned by the United States” that is “administered by the Secretary of the Interior through” BLM.15 FLPMA requires BLM to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands,”16 and to “manage the public lands . in accordance with [these] land use plans . when they are available.”17 Therefore, when both BLM and the Forest Service have land use plans that apply to a particular area, BLM must comply with both plans when leasing coal underlying lands managed by the Forest Service in that area.18 Finally, BLM’s coal leasing decisions are also subject to NEPA. NEPA requires every federal agency, before it undertakes a “major Federal action[] significantly affecting the quality of the human environment,” to prepare a “detailed statement” describing “the environmental impact of the proposed action, . any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] alternatives to the proposed action.”19 12 43 C.F.R. § 3461.5(o)(1). 13 See id. §§ 3420.1-4(a),(b)(2), 3425.2. 14 See generally 43 U.S.C. § 1701. 15 See id. § 1702(e). 16 Id. § 1712(a). 17 Id. § 1732(a); see also 43 C.F.R. § 1610.5-3(a) (“All future resource management authorizations and actions . shall conform to the approved [land use] plan.”). 18 Cf. Wyo. Outdoor Council, 159 IBLA 388, 394 (2003) (noting that oil and gas leases issued by BLM on Forest Service lands are governed by BLM’s land use plans). 19 42 U.S.C. § 4332(2)(C). 196 IBLA 4 IBLA 2016-279 Factual background WildEarth challenges BLM’s decision to hold a competitive lease sale for a tract of land known as the Greens Hollow Tract.20 The Greens Hollow Tract consists of 6175.39 acres of Federal lands located in Sanpete and Sevier Counties, Utah, within the Manti-La Sal and Fishlake National Forests.21 The Tract is located next to an existing underground coal mine, known as the SUFCO Mine, and the coal located on the Tract can be accessed by extending the existing underground workings of the SUFCO Mine.22 On October 13, 2005, the owner of the SUFCO Mine submitted an application to BLM, asking the agency to make the Greens Hollow Tract available through a competitive lease sale.23 Canyon Fuel Company, LLC (Canyon Fuel) later acquired the mine and assumed the lease application.24 In December 2011, BLM and the Forest Service released a final environmental impact statement (EIS) analyzing the proposed Greens Hollow Tract lease sale.25 The same month, the Forest Service issued a draft decision consenting to BLM offering the lease sale, with conditions.26 WildEarth administratively appealed the Forest Service’s draft decision, and the Forest Service withdrew the draft decision in order to revise the EIS and the record of decision.27 In March 2014, the agencies published a draft supplemental EIS (SEIS) for the lease sale.28 WildEarth submitted comments on the draft SEIS,29 and the agencies published a final SEIS in February 2015 (the Final SEIS).30 The Final SEIS analyzed three 20 WildEarth Statement of Reasons at 1 (filed Aug.
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