Andrew Smith's Senior Project Paper

A Case Study Concerning







Save Our Cumberland Mountains, Appalachian Voices, The Sierra Club, Southern Appalachian Biodiversity Project (Collectively SOCM)

Vs.

Gale A Norton, Secretary of the United States Department of the Interior, in her Official Capacity; Jeffrey Jarrett, Director of the United States Office of Surface Mining Reclamation and Enforcement, in his Official Capacity; Tim Dieringer, Director of the Knoxville Field Office of Surface Mining Reclamation and Enforcement, in his Official Capacity; & Robert Clear Coal Corporation.

On Appeal from the United States District Court for the Eastern District of Tennessee, Northern Division


Andrew Smith
Senior Seminar
Dr. Derek Stanovsky
Appalachian State University
May 2006









List of Frequently Used Acronyms



AOC Approximate Original Contour

DOI United States Department of Interior

EA Environmental Assessment

EIS Environmental Impact Statement

FONSI Finding of No Significant Impact

NCC National Coal Corporation

NEPA National Environmental Policy Act of 1969

OSM Office of Surface Mining Reclamation and Enforcement

RCCC Robert Clear Coal Corporation

SMCRA Surface Mining Control and Reclamation Act of 1977

SOCM Save Our Cumberland Mountains

Plaintiffs-Appellants Save Our Cumberland Mountains, Appalachian Voices, The Sierra Club, Southern Appalachian Biodiversity Project (Collectively SOCM)

Defendants-Appellees Gale A Norton, Secretary of the United States Department of the Interior, in her Official Capacity; Jeffrey Jarrett, Director of the United States Office of Surface Mining Reclamation and Enforcement, in his Official Capacity; Tim Dieringer, Director of the Knoxville Field Office of Surface Mining Reclamation and Enforcement, in his Official Capacity; & Robert Clear Coal Corporation.







Statement of the Facts

On June 28, 2002, the Robert Clear Coal Corporation (RCCC) filed for a coal mining permit in order to conduct “surface mining” operations on Zeb Mountain in Campell and Scott counties, Tennessee. The Office of Surface Mining Reclamation and Enforcement (OSM) in Knoxville granted the permit with an Environmental Assessment (EA) while issuing a Finding of No Significant Impact (FONSI), in regards to the human and environmental concerns of the area.
On September 4, 2003, four non-profit organizations, Appalachian Voices, Save Our Cumberland Mountains, Sierra Club and Southern Appalachian Biodiversity Project (collectively hereafter SOCM), filed a complaint in the United States District Court for the Eastern District of Tennessee in regards to OSM’s to be determined conclusion that “2,100 acres of coal strip mining-including the permanent obliteration of 250-350 feet of three mountaintops- will have no significant short- or long term environmental impacts warranting the preparation of a full scale environmental impact statement (EIS)” that would appropriately address such a devastating enterprise (Final Brief of Appellants p. 2-3).





Statement of the Case

The coal mining being permitted in Campell and Scott counties, Tennessee will have devastating effects upon the human and environmental conditions of the area. Using a technique of mountaintop removal masked by a newly crafted definition, the RCCC has validated through an agency of the United States Department of the Interior the annihilation of mountains with high explosives without the necessitation of an appropriate environmental assessment.
The United States present in their legislation, statutes, Supreme court rulings, and agency policies measures by which to address the momentous concerns which arise from mountaintop removal. However, the OSM is side-stepping these procedures in order to appropriate devastation “in close proximity to a school, numerous homes, churches, businesses, habitat occupied by federally threatened and endangered species, and 38 species identified by the state of Tennessee as ‘in need of management’” (Final Brief of Appellants p.5).
Judy Bonds, “a coal miner's daughter whose roots here (in West Virginia) go back eight generations, packed up her family and fled when she could no longer tolerate the blasting that rattled her windows, the coal soot that she suspected was clotting her grandson's lungs, and the blackwater spills that bellied-up fish in a nearby stream”(National Geographic). Although her birthplace lies in West Virginia, her life’s history resembles many arising from the demolition of mountaintop removal. In order to prevent the recurrence of such nightmares, our legislation and government policies must be accurately upheld.
Hiding behind contrived definitions limiting a court’s interpretive ability and standard of reviews which restrict the same court’s authoritative jurisdiction, the OSM is facilitating the impedance upon human rights and the environment by the RCCC. Fortunately, under legislation enacted by the United States, the court is able to deem the actions of the agencies unsuitable if they are found to be arbitrary, capricious, or otherwise not in accordance with law.

















Statutory Background
Surface Mining Control and Reclamation Act of 1977
The Surface Mining Control and Reclamation Act of 1977 (SMCRA) was enacted by Congress in order to establish a sense of balance due to Congressional findings that “many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare,” while there is a essential necessity to “assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy” (Brief of Federal Appellees p.15-6).
SMCRA requires twenty-five minimum performance standards for coal mining operations which are proposed to enable the regulatory authority the discretion needed to weigh the environmental impacts of the proposed action. These standards include various requirements concerning “baseline information on the mining and reclamation plan, including maps, geologic information, production plans, plans for meeting performance standards, surface and ground water consequences of the proposed operation, and a significant list of other information pertinent to the mine and the applicant (Brief of Federal Appellees p.16). Furthermore, the applicant must consult various state and federal agencies for additional information. As well, the candidate must notify the public of their actions, additionally providing for those adversely affected an opportunity for a public hearing.



The National Environmental Policy Act of 1969
The National Environmental Policy Act of 1969 (NEPA) requires all federal government agencies by every possible means and to the utmost degree to comply with NEPA. The following statutes within NEPA are directly inherent to the Plaintiff’s argument as well as the Defendant’s contention:
“( C ) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official (SMCRA) on-
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented” (Brief of Federal Appellees p.14)
In accordance with the preceding statutes, NEPA requires for “major Federal actions significantly affecting the quality of the human environment”, all federal agencies to prepare an Environmental Impact Statement (EIS) (Brief of Federal Appellees p.14). The agency may choose to prepare an environmental assessment (EA); however, only as a preliminary manuscript that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare and environmental impact statement or a finding of no significant impact” (Brief of Federal Appellees p.15). As a result of the conclusions reported in the EA, the agency subsequently determines whether to issue a finding of no significant impact (FONSI) or a further thorough EIS.


















Standard of Review
The Standard of Review determines the level of scrutiny by which an appellate court may view a lower court’s formerly ruled decision. The level of scrutiny the court exercises regarding SOCM’s complaint against the administrative behavior of OSM is considered to be de novo. De novo ruling practices suggest that the court may take a “fresh look” at the case at hand, disregarding the lower court’s decision in examination while retaining the right to overturn the previous ruling. Nonetheless, if a court determines the OSM’s actions in review to be unlawful, they “can be overturned only if it is arbitrary, capricious, or an abuse of discretion….It is not for us (the court) to substitute our judgment of the environmental impact for the judgment of the agency, once the agency has adequately studied the issue” (Final Brief of Appellants p.8).











Arbitrary and Capricious
A case which determines a Conclusion of Law applies to circumstances requiring “the exercise of judgment or application of legal principles” (http://en.wikipedia.org/wiki/Conclusion_of_law). In the case under review findings concerning the applicability of the mining operation and the administration of agency policy are alleged by the Plaintiff to be state of affairs necessitating a court of law’s judgment in addition to the application of legal doctrine.
A complaint such as this which questions a government agency’s administrative ruling or practice of administrative law is reviewed by the courts under the arbitrary and capricious standard in accordance with the Conclusion of Law. United States courts stipulate that a prior ruling is found to be arbitrary and capricious wherein it was made on impulsive, unpredictable, or unreasonable grounds otherwise devoid of proper consideration of circumstances.










“Contrived Definitions”


The verb, contrive, is defined “to invent or fabricate, especially by improvisation” (http://www.thefreedictionary.com/contrive). Contrive, as an adjective, suggests the development or manufacture of that which it describes. During this case, the Plaintiff alleges that OSM accepted a contrived definition of the type of mountaintop removal NCCC proposed. This lately produced classification exempted NCCC from the Code of Federal Regulations requirement that normally require an EIS. The defendant contends that the method of extraction is irrelevant in the definition, for what distinguishes the two is the post-mining topography. Furthermore, OSM claims that the restoration of the impacted area’s approximate original contour (AOC) will be adequate reclamation for the removal of a mountain in appropriation of our nation’s coal.










Statement of the Issues Under Review
I. Whether OSMRE Acted Arbitrarily, Capriciously, and Otherwise not in Accordance with NEPA and the APA, by Preparing an Environmental Assessment that Failed to Consider: (1) a Reasonable Range of Alternatives to NCC’s Proposed Coal Strip Mining Operations Which Affects More than 2,100 Permitted Acres and Permanently Obliterates 250-350 Feet of Three Mountain Peaks and (2) the Environmental Impacts of Those Alternatives.
II. Whether OSMRE Acted Arbitrarily, Capriciously, and Otherwise not in Accordance with NEPA and the APA by Failing to Prepare an EIS for NCC’s Mountaintop Mining Operations, When Consideration of Such Operations Normally Requires the Preparation of an EIS.
III. Whether OSMRE Acted Arbitrarily, Capriciously, and Otherwise not in Accordance with NEPA and the APA by Concluding that this Coal Strip Mining Operation Has No Significant Environmental Impacts.
IV. Whether OSMRE Acted Arbitrarily, Capriciously, and Otherwise not in Accordance with NEPA and the APA by Failing to Provide the Public an Opportunity to Review and Comment Upon its Environmental Assessment Prior to Issuing its Finding that this Coal Strip Mining Operation Has No Significant Environmental Impacts (Final Brief of Appellants p.2).





























The subsequent pages are an analysis of the Statement of Issues Presented For Review (Separate section in between) in regards to the plaintiff and appellee’s arguments in order to propose what state of affairs may determine the suitable course of action for the United States Court of Appeals for the Sixth Circuit granted that on February 23, 2005, the District Court ruled in favor of the defendant “dismissing the case with prejudice by: (1) denying SOCM’s motion for partial summary judgment; (2) granting Appellee’s motion for summary judgment; and (3) ordering the clerk to close the case” (Final Brief of Appellants p.1).














I. OSM, the principal enforcer of SMCRA, claims in the case under review, that they lacked the jurisdiction to decline the candidate’s application on account of their accomplishment of the minimum requirements of SMCRA. OSM further defends its practices by suggesting an inability to comply with the National Environmental Policy Act of 1969 on account of it not being “authorized to deny an applicant’s permit application unless the application does not meet the requirements of SMCRA” (Brief of Federal Appellees p.25).
The Plaintiff’s argument rests on the “entrusted administration of NEPA to the Council on Environmental Quality, not OSM” (Final Brief of Appellants p.21). Furthermore SOCM suggests that “common sense, coupled with an elementary understanding of gravity” is capable of recognizing the potential danger of such catastrophic actions on “steep slopes, characteristic of the permit area”, obvious circumstances necessitating the consideration of alternatives (Final Brief of Appellants p.21).
The Plaintiff’s argument concerning OSM’s failure to provide a reasonable range of alternatives to the proposed coal mining operations rests on the agency’s conclusion that their only options in considering the proposal were approval, disapproval, or the making of no decision.
Citing the legislation passed under the National Environmental Policy Act (NEPA), SOCM identify the consideration of “every significant aspect of the environmental impact of a proposed mining operation” and the assurance “that [OSMRE] will inform the public that it has indeed considered environmental concerns in its decisionmaking process” to be NEPA’s two uniformly significant functions (Final Brief of Appellants p.10-11). Furthermore, compliance with NEPA “‘[s]hall include brief discussions…of alternatives [and] the environmental impacts of the proposed action and alternatives…’ (Final Brief of Appellants p.10-11).
Consideration of alternatives is the ‘heart’ of NEPA because it defines the issues and provides decision makers and the public a clear basis for choosing among reasonable options. Nonetheless OSM claims that the Surface Mining Control and Reclamation Act of 1977 (SMCRA) restricted their appropriation of rational alternatives due to the agency’s limited authority conferred upon it by Congress. Moreover they claim to have “no discretion to deny a permit once the applicant demonstrates the ability to meet SMCRA’s minimum performance standards” (Final Brief of Appellants p.11-12). In addition, they counter SOCM’s weighty reliance upon a district court decision in American Oceans Campaign v. Daley to suggest a fundamental dissimilarity. The distinction recognizes that the agency under examination in the American Oceans Campaign v. Daley case for the misappropriation of alternatives possessed the relevant authority and responsibility under its jurisdiction to act; whereas the defendant (OSM) claims no obligatory authority or responsibility to appropriate alternatives as a direct result of its lack of jurisdiction.
SOCM further supplements their proposed recognition of the agency’s misconduct by providing alternatives suggesting more appropriate courses of action. Additional auger-mining, for example, was among the suggestions; however, OSM conceals its dealings under the standard of review which states that “it is not the task of [a] court to substitute [its] judgment for that of the agency, whether the agency’s decision relates to procedure or substance” (Final Brief of Federal Appellees p.35) (emphasis added, see Standard of Review).

II. SOCM presents a case suggesting the falsity of OSM’s conclusion that the proposed mining operations do not constitute mountaintop removal by reason of its “narrowly tailored exclusion from a key provision of SMCRA requiring mine operators to return the landscape to its approximate original contour (AOC)” (Final Brief of Appellants p.20). Additionally, SOCM claims that “it defies reason to accept OSM’s argument that the only thing separating RCCC’s strip mining operation from one normally requiring an EIS is the single fact that RCCC is required to return the 2,100 acre landscape to its approximate original contour instead of leaving ‘a plateau or gently rolling contour’ Both types of mining involve blasting the mountain apart and picking the coal from the rubble” (Final Brief of Appellants p. 20).
The agency’s supposition concerning their classification of strip mining removes the necessity for construction of an EIS, a course of action issued concerning analogous cases under OSM’s policy manual. Circumventing its own procedures with relation to mountaintop removal, OSM fails to provide the obligatory service for which it was designed.
The Appellee claims that “even if the proposed mining fell within OSM’s guidelines, those guidelines are not judicially enforceable against OSM…holding that the agency policy is not a regulation, has no legal force, and does not bind the agency” (Final Brief of Federal Appellees p. 30). In the midst of OSM ostensibly safeguarded yet again by the standard of review, it will be up to the court to determine whether the “reclamation work required to return this steeply sloped mountainous landscape to its approximate original contour” (Final Brief of Appellants p.21).

III. The Plaintiff maintains that it defies reason to conclude that a FONSI be appropriate in the circumstances concerning the coal mining operations. Explicitly pronounced in OSM’s EA are essential specifics which recognize considerable compromises to the environment of the proposed area as well as substantial degradation to the quality of life among the local residents. Estimating “at least 50 to 75 years following reclamation before a harvestable, sawtimber type environment is reestablished” within the 1,148.7 acres of disturbed vegetation, SOCM suggests obvious impact (Final Brief of Appellants p. 25).
SOCM also pertinently alleges in accordance with OSM’s own EA the unmistakable consequences that will incur from blasting resonance. Granted that these “‘very annoying’ adverse impacts will ‘remain constant through completion of coal removal activities…ending upon completion of all mining and reclamation activities, a period of approximately 10 to 10.5 years’” (Final Brief of Appellants p.26). In response, OSM fails to elucidate how an elementary school located approximately 4,000 yards from the mine site would be affected in appreciation of the children’s ability to learn or concentrate over the next ten years.
Furthermore, SOCM observes within OSM’s EA the acknowledgment of the “truck traffic increase to ‘110 trucks per day’ along public roads near the site” while aware of an indubitable “question…as to whether a coal truck and other vehicles that likely use Lick Fork Road may safely pass one another” (Final Brief of Appellants p.27).
The OSM’s recognition that the “Plaintiff’s third argument is nothing more than a challenge to OSM’s substantive decision-making, which is not within this Court’s jurisdiction under NEPA and the APA” discredits SOCM’s interpretation of the EA (Final Brief of Federal Appellees p. 33).

IV. The Plaintiff’s assert the liability of OSM in ensuring “‘that environmental information is available to public officials and citizens before decisions are made and before actions are taken’…as such, OSM must ‘to the fullest extent possible…encourage and facilitate public involvement’ in permitting coal strip mining operations” (Final Brief of Appellants p. 37).
In conflict with public’s rights OSM deprived the community of its privilege to “review and comment on the EA by swiftly issuing the FONSI, the EA, and the permit all in on the same day. This denial occurred despite receiving requests that the EZ be circulated for public review and comment from five (5) non-profit organizations on behalf of their members and 15 citizens” (Final Brief of Appellants p. 38).
The Plaintiff’s assertion that the defendant failed to exercise the public’s right to comment on the EA prior to the issuance of a FONSI appears to be unfounded based on the limited jurisdiction of the court. As seen prior, OSM’s incapability to be bound by its own internal guidelines shields its behavior; furthermore, OSM was “not even required to submit the EA for further public review and comment” within its own procedure due to the alleged mining being of the sort “not within the range of actions that OSM deemed normally would require the preparation of an EIS” (Final Brief of Federal Appellees p.50).


















Personal Analysis

I have, to the best of my ability, avoided my own opinions regarding the complaints filed before the court concerning the misconduct of the Office of Surface Mining Reclamation and Enforcement in an attempt to retain the validity of the case as well as my own research. The following pages consist of my own viewpoints which I present in a frank and honest manner. I do not mean to suggest that the various environmental organizations represented here in this case adhere to even a comparable train of thought.


I contend that the Office of Surface Mining Reclamation and Enforcement acted arbitrarily, capriciously, and to a grand degree otherwise not in accordance with law while preparing a list of alternatives in their environmental assessment limited to approval, disapproval, or the making of no decision. I firmly believe the Surface Mining Control and Reclamation Act of 1977 was not created in order to relieve this government agency of its obligation to the National Environmental Policy Act of 1969 which clearly states its necessity to provide unambiguous, cooperative assistance in determining the extent of and protecting against detrimental environmental impact. Furthermore, the deplorable conduct with which the agency acted, erroneously concluding the proposed actions devoid of mountaintop removal based on a lately contrived classification, deeply disgraces our federal representation.
OSM’s inexcusable conclusion that the obliteration of a mountain’s entire upper portion has no significant environmental impacts clearly demonstrates an unmistakable lack of discretion. Must the matter of proximity of the elementary school and necessity for school buses to pass through be mentioned? Execrably so, however inexcusable and injurious the agency’s conclusions may be, I firmly believe that the authority vested in the United States District Court will suitably represent our people and environment’s interest.




Andrew Smith
Department of Interdisciplinary Studies
Appalachian State University
4 / 20 / 06








Works Cited Page




National Geographic. 2004. 15 April 2006 <http://www7.nationalgeographic.com/ngm/0603/feature5/index.html>.
SOCM v. OSMRE. Final Brief of Appellants. No. 05-5663. 28 Oct. 2005.
SOCM v. OSMRE. Final Brief of Federal Appellees. No. 05-5663. 22. May. 2004.
The Free Dictionary. 2004. 15 April 2006 <(http://www.thefreedictionary.com/contrive>.
Wikipedia. 2004. 15 April 2006 <http://en.wikipedia.org/wiki/Conclusion_of_law>.