July 18, 2019

Tenth Circuit: Surface Mining Control and Reclamation Act Appeal Dismissed for Lack of Ripeness

The Tenth Circuit Court of Appeals published its opinion in Farrell-Cooper Mining Co. v. United States Dep’t of Interior on Thursday, September 5, 2013.

This dispute concerns reclamation requirements contained in surface coal mine permits for Farrell-Cooper’s Liberty Mine #5 and Liberty Mine #6. The terms and administration of such permits are governed by the Surface Mining Control and Reclamation Act (SMCRA). Oklahoma is a “primacy” state under SMCRA so the Oklahoma Department of Mines (ODM) has enforcement authority unless an exception exists, in which case the United States Office of Surface Mining, Reclamation and Enforcement (OSMRE) has enforcement authority.

In 2011, OSMRE issued a ten-day notice to ODM raising concerns that the Liberty sites had failed to achieve original contour in their reclamation. After various administrative actions, the OSMRE issued notices of violation (NOV) to Farrell-Cooper for both sites.

Farrell-Cooper applied for administrative review before the Department of Interior’s Office of Hearings and Appeals to contest both NOVs. In the midst of these administrative deliberations, Farrell-Cooper filed suit against the Federal Appellees in the United States District Court for the Eastern District of Oklahoma. Farrell-Cooper and ODM sought a declaratory judgment that ODM had “sole and exclusive permitting authority” under Oklahoma’s SMCRA program. The district court dismissed the action for lack of jurisdiction.

The issue of ripeness had been raised and fully briefed in the district court but the court did not rule on that issue. The Tenth Circuit held that because both Farrell-Cooper and ODM’s claims were conditioned on an ongoing administrative proceeding, and neither party faced harm as the proceeding progresses, their claims were not ripe for review and dismissed the appeal.

Tenth Circuit: Environmental Group Plaintiffs Had Standing to Challenge Oil and Gas Leases But Claims Not Ripe

The Tenth Circuit published its opinion in Southern Utah Wilderness Alliance v. Palma on Tuesday, January 8, 2013.

Kirkwood Oil and Gas, LLC owned 39 oil and gas leases in Southern Utah that in the 1980s it applied to convert to combined hydrocarbon leases. Such leases would allow Kirkwood to extract oil from tar sands. The Bureau of Land Management (BLM) never accepted or rejected Kirkwood’s applications. Between 2006 and 2008, BLM and the Interior Board of Land Appeals (IBLA) issued several decisions declaring that the underlying oil and gas leases were “suspended” pending review of the conversion applications. The Southern Utah Wilderness Alliance and several other environmental groups (SUWA) alleged BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming the 39 Kirkwood leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.

The Tenth Circuit discussed the affidavits SUWA submitted to establish injury in fact and held that the district court “misapplied the law when it rejected SUWA’s standing on the basis that the affidavits failed to show its members have visited each of the leases at issue. Neither our court nor the Supreme Court has ever required an environmental plaintiff to show it has traversed each bit of land that will be affected by a challenged agency action.” The court also held that the district court had erred in holding SUWA failed to show a concrete injury sufficient to support standing. “A plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interests are harmed by a defendant’s conduct has suffered injury in fact that is concrete and particularized.”

The court found that while SUWA was a proper party to challenge the BLM’s decision, its claims were not yet ripe. The challenged decisions were interim decisions, not final. The BLM had not made a decision regarding converting to combined hydrocarbon leases and it appeared unlikely Kirkwood would engage in any oil or gas development until that decision was made. Thus, any harm to SUWA’s members was not imminent or certain. The court remanded to the district court for dismissal without prejudice.