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NATURAL RESOURCES DEFENSE COUNCIL v. HUGHES

June 14, 1978

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
Royston C. HUGHES et al., Defendants, Utah Power and Light Company, Intervenor-Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, District Judge.

 This cause having come on for hearing, upon notice, on cross-motions for summary judgment filed by all parties herein, based upon the complaint and answer, the answers of the federal defendants to the interrogatories and requests for admission propounded by plaintiffs, and various affidavits and exhibits filed by the parties including the stipulation between plaintiffs and the federal defendants dated April 6, 1978; and

 This Court having carefully considered all the evidence and having determined that the federal defendants have violated the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., (1970) (NEPA), in their formulation, adoption, and implementation of a new federal coal leasing program; and

 It appearing to this Court that unless restrained or otherwise ordered, the federal defendants, until the President's Environmental Message to Congress of May 23, 1977 is fully implemented, will continue to carry out the new federal coal leasing program without complying with NEPA; and

 This Court finding that such action by defendants would cause irreparable injury to the interests of plaintiffs and the general public; it is hereby

 ORDERED, that plaintiffs' motion for summary judgment as against the federal defendants be and hereby is granted, and the motions for summary judgment of the federal defendants and defendant-intervenor Utah Power and Light Company be and hereby are denied.

 It further appearing that the federal defendants have violated their mandatory, nondiscretionary duty pursuant to NEPA to consider fully all the environmental impacts of, and alternatives to, a new federal coal leasing program before deciding to adopt and implement that program, it is further

 ORDERED, that the federal defendants, their agents and employees and all those in concert or participation with them are enjoined from taking any steps whatsoever, directly or indirectly, to implement the new coal leasing program, including calling for nominations of tracts for federal coal leasing, and issuing any coal leases except:

 (1) when the proposed lease is required to maintain an existing mining operation (a) at the average annual level of production existing as of September 27, 1977, or (b) to provide reserves necessary to meet binding contracts (excluding letters of intent and memoranda of understanding) existing on September 27, 1977, and the extent of the proposed lease is not greater than is required to meet criterion (a) or (b) for eight years in the future. Any lease issued under this paragraph will provide that annual production from the lease area shall not be greater than the average annual level of production existing as of September 27, 1977, or the amount needed to meet the annual requirements of the contract existing on September 27, 1977; or

 (2) when the proposed lease is necessary because (a) mining operations existing on September 27, 1977, are being conducted that could remove the coal deposit as part of an orderly mining sequence; and (b) the size, location, or physical characteristics are such that removal of the coal reserves sought to be leased, except in conjunction with ongoing operations, would (i) involve costs demonstrably so high that it would not be sufficiently profitable to develop the deposit in the reasonably foreseeable future or (ii) significantly increase environmental damage. This paragraph would not apply if there is any reasonable alternative by which the existing mine could continue operations and the coal deposit subject to the proposed lease could be mined at a later date without either (i) or (ii) occurring. The extent of the proposed lease cannot be greater than necessary to provide coal for five years in the future at the average annual level of production existing as of September 27, 1977; or

 (3) when the Secretary determines to issue the proposed lease under the provisions of Section 510(b)(5) of the Surface Mining Control and Reclamation Act of 1977 in exchange for a federal coal lease in an alluvial floor, except that no lease may be issued under this paragraph in exchange for a federal lease held by an applicant who is not entitled to have its surface mining permit approved under Section 510(b)(5) of that Act; or

 (4) when the proposed leases will be used to conduct a project authorized by the Administrator of the Energy Research and Development Administration under Section 908 of the Surface Mining Control and Reclamation Act of 1977, and the technology cannot be adequately demonstrated on existing leases or private coal holdings. Any such lease shall provide for no more than 500,000 tons annual production and the demonstration shall meet all of the requirements of regulations promulgated pursuant to Section 908; or

 (5) the following lease applications:

 (a) ES 12304 (Ky.) -- Ryans Creek Coal Company

 (b) Co 23396 -- Prosper Lombardi

 (c) NM 28093 -- Western Coal Company

 (d) NM-A 29460 -- Lower Colorado River Authority

 (e) NM 26630 (Okla.) -- General Portland, Inc.

 (f) U 25683 -- Braztah Corp.

 (g) U 28297 -- Coastal States

 The federal defendants have determined that environmental impact statements are not required to be prepared on the total acreage sought in the applications listed in (a) and (b) and are required to be prepared on the total acreage sought in the applications listed as (c), (d) and (f). The determination whether an environmental impact statement is required for applications (e) and (g) has yet to be made.

 Federal defendants are not enjoined from processing any lease application, as filed or as modified, to the extent necessary to determine whether it meets the criteria of paragraphs (1) through (4). Any lease which has been determined to meet any of the criteria of paragraphs (1) through (4) or which is listed in paragraph (5) shall be issued only in conformance with all applicable federal laws and regulations including the provision of Section 102(2)(C) of the National Environmental Policy Act.

 Federal defendants will notify plaintiffs not less than 21 days before the Secretary of the Interior's approval of a lease sale offering concerning information which appears to qualify an applicant for a specific lease under ...


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