This case involves a dispute over the expansion of an underground coal mine operated by GCC Energy, LLC, located beneath Indian lands. The mine operator sought approval to revise its permit, obtain a new federal lease, and modify its operations plan. The Office of Surface Mining Reclamation and Enforcement (OSMRE) and the Bureau of Land Management jointly prepared an environmental assessment and solicited public comments before approving the revision. Two advocacy groups, Citizens for Constitutional Integrity and Southwest Advocates, Inc., opposed the expansion, arguing it would harm water resources. They initially sued based on the Stream Protection Rule, which Congress had rescinded, and later amended their claims to rely on the Surface Mining Control and Reclamation Act (SMCRA). They alleged the agency failed to carry out nondiscretionary duties to investigate violations, penalize the operator, or suspend the permit. The district court dismissed the case, and the advocacy groups appealed to the Tenth Circuit.
The Tenth Circuit, in an opinion by Circuit Judge Bacharach, addressed two primary statutory claims. First, regarding the claim under 30 U.S.C. § 1270, which allows suits when an agency fails to carry out nondiscretionary obligations, the court found the plaintiffs' notice of intent to sue was inadequate. The notice focused on the Stream Protection Rule and general environmental assessment shortcomings rather than identifying the specific statutory provisions the agency allegedly violated, such as Sections 1268 and 1271. The court emphasized that the purpose of the notice requirement is to give the agency a chance to correct the violation before litigation. Furthermore, the court held that even if the notice were sufficient, the duties alleged were discretionary. The decision to investigate a mine or assess civil penalties involves agency judgment and is not a mandatory duty with 'no room for choice.' Second, regarding the claim under 30 U.S.C. § 1276, which permits judicial review for those who participated in the permit-review process, the court found the plaintiffs did not qualify. Participation requires objecting to the permit application, requesting a rehearing, and lodging an administrative appeal. The plaintiffs had commented on the environmental assessment but never objected to the permit application itself. Because they did not object, they were not entitled to notice of the permit decision and could not pursue the remaining administrative steps required to trigger judicial review.
The agency's approval of the underground coal mine expansion remains in effect. The decision clarifies that challenges to agency enforcement actions under SMCRA must strictly adhere to notice requirements and that plaintiffs must actively participate in the permit-review process to secure standing for judicial review. It reinforces that agency decisions to investigate or penalize are generally discretionary and not subject to suit under Section 1270 unless a nondiscretionary duty is clearly established.
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