2011-11-14_REVISION - C1981022 - Laserfiche WebLink

Home Browse Search

Appeal Deciding Officer 3 Appeal Issue I : THE FOREST SUPERVISOR VIOLATED NEPA BY FAILING TO DISCLOSE THE IMPACTS OF THE PROPOSED ACTION FROM MINING A HALF - MILLION TONS OF COAL OUTSIDE THE LEASE MODIFICATION AREA. NEPA requires that agencies analyze in detail the direct, indirect, and cumulative impacts of a proposed agency action. 40 C.F.R. §§ 1508.7 & 1508.8. This inquiry must include an analysis of “direct effects,” which are “caused by the action and occ ur at the same time and place,” as well as “indirect effects,” which are “later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. §§ 1508.08; see Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 963 (9th Cir. 2002) (“NEPA regulations and caselaw require disclosure of all foreseeable direct and indirect impacts” of a proposed action). In addressing the impacts of a proposed action, both the short -term and long -term effects must be considered. 40 C.F.R. § 1508.27(a). In addressing the direct impact of its consent to the Lease Modification, the Forest Service states that the lease will result in the removal 35,000 -235,000 tons of coal over a two -day to three -week period. Forest Service, Environmental Assessment, Federa l Coal Lease COC61357 Modification, Tract 5 (August 2011) at 25 (hereafter “EA”). But the EA also states that the proposed action will permit Oxbow Mining LLC to remove an additional 0.52 million tons of coal outside of the lease modification boundary that would likely otherwise be bypassed were it not for the Lease Modification. Id. at 93 (“BLM’s estimate of additional recoverable reserves on the existing lease afforded because of development on the modification would be about 0.52 million tons.”); see als o D. Dyer, BLM, Combined Geologic and Engineering Report (GER) and Maximum Economic Recovery Report (MER) for Federal Coal Lease COC61357, Tract 5 (Aug. 2010, 2nd Rev. May 2011) (“GER/MER”), attached to EA at 134 (“Additional recoverable reserves on the existing lease afforded because of development on the [Lease Modification] would be about 0.52 million tons.”); EA at 25 (characterizing the 0.52 million tons of coal as amounting to “approximately 6 to 7 weeks duration” of additional mining). Despite th e fact that the Lease Modification will make directly available up to 0.24 million tons of coal, and will make available another 0.52 million tons of coal outside of the Lease Modification boundary (for a total of up to 0.76 million tons), the EA fails to disclose the several impacts from facilitating Oxbow’s mining of the additional 0.52 million tons of coal. The EA contains no discussion of (or map depicting) the location of the additional half ton of coal that will be mined as a result of the Lease Modi fication. Neither the public nor the decisionmaker is provided information that would enable them to understand where subsidence or other impacts might occur. No acreage figures are provided, and it is unclear to what extent the half -million tons underlies Forest Service and/or private land. The EA states that no roadless lands will be degraded by the Forest Service’s action because the Lease Modification area will be covered by a “no surface occupancy” stipulation prohibiting surface disturbance for “for exploration, methane drainage, or ventilation and/or escape shafts in the modification area.” EA at 106. See also id. at 65 (“the proposed action has a no surface occupancy stipulation (for steep slopes, geohazards and for Roadless values); so no surface d isturbing activities, other than subsidence, will take place on the lease modification area.”). But