* This order and judgment is not binding precedent, e xcept under the (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UTAH ENVIRONMENTAL CONGRESS,

Plaintiff - Appellant,

v. U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of Interior; KENT HOFFMAN, in his official capacity as BLM Deputy State Director for Lands and Minerals,

Defendants - Appellees, and CANYON FUEL COMPANY, L.L.C.,

Defendant - IntervenorAppellee.

------------------------------------ STATE OF UTAH, DIVISION OF OIL, GAS AND MINING,

Amicus Curiae. No. 04-4153 (D. Ct. No. 2:03-CV-911 DB)

(D. Utah)

ORDER AND JUDGMENT ** (...continued)

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Ronald A. White, District Judge, United States District Court for the Eastern District of Oklahoma, sitting by de signation. - 2 - Before TACHA , Chief Circuit Judge, HENRY , Circuit Judge, and WHITE , District Judge. **

Plaintiff-Appellant Utah Environmental Congress (“U EC”) appeals the District Court’s denial of a permanent injunction. In denying the injunction, the District Court found that UEC failed to satisfy any of the four requirements necessary for granting a permanent injunction. On appeal, UEC fails to contest two of these four requirements. We take jurisdicti on under 28 U.S.C. § 1291,
DENY all pending motions, and because the uncontested f indings provide a sufficient basis for denying the permanent injuncti on, AFFIRM

. I. Background In 1999, following an extensive administrative revi ew process, DefendantIntervenor-Appellee Canyon Fuel Company and Defendant-Appellee Bureau of Land Management (“BLM”) entered into a lease permitting Canyon Fuel to expand its coal mining operations in the Manti-La S al National Forest. In February 2003, Canyon Fuel sought to modify this ar rangement to permit mining1 UEC did not appeal the denial of the temporary inju nction for the 3L

panel, Canyon Fuel completed mining the panel, and therefore only the 4L panel remains under consideration in this appeal. - 3 - in areas not previously approved for mining. On Ju ly 31, 2003, BLM approved the modification, thereby permitting Canyon Fuel to mine the areas referred to during this litigation as the 3L and 4L panels. UEC seeks to enjoin the mining of these panels. Th e District Court initially granted a temporary injunction with respect to the 4L panel and denied an injunction for the 3L panel. 1 The District Court later denied UEC’s motion for a permanent injunction for the 4L panel and granted t he Defendants’ motion to lift the temporary injunction. UEC timely appealed.
II. Discussion We review the denial of a permanent injunction for abuse of discretion.
See Mitchell v. City of Moore, Oklahoma , 218 F.3d 1190, 1198 (10th Cir. 2000). Under this standard of review, we “accept the distr ict court’s factual findings unless they are clearly erroneous and review applic ation of legal principles de
novo.” Id. To grant a permanent injunction, a district court m ust find that four requirements have been satisfied: “(1) actual succe ss on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing part[ies ]; and (4) the injunction, if- 4 -

issued, will not adversely affect the public intere st.” Fisher v. Oklahoma Health Care Auth. , 335 F.3d 1175, 1180 (10th Cir. 2003). The District Court found that UEC failed to meet any of these requirements. On appeal, UEC argues that the Distr ict Court erred in finding that the first two requirements were not met. UEC, howe ver, does not contest the District Court’s findings with respect to the last two requirements. Because a permanent injunction cannot be granted unless all f our requirements are satisfied, we need only consider these latter two requirements to decide this appeal. The third requirement for granting a permanent inju nction requires a court to balance the harms that would result from denying the injunction against the harms that would result from granting the injunctio n. In balancing the harms, the District Court found that the financial losses thatwould occur as a result of granting the permanent injunction outweighed the “s peculative claims of environmental harm” that would result from mining. UEC does not contest this finding on appeal. The fourth requirement for granting a permanent inj unction requires a court to consider whether granting the injunction would a dversely affect the public interest. The District Court found that granting t he injunction would adversely affect the public because it would prevent the mini ng of enough coal to provide electricity to nearly a half million households foran entire year. UEC does not- 5 -

contest this finding on appeal. A permanent injunction cannot be granted if any of the four requirements has not been met. Id . Because UEC does not argue that the District Cou rt erred in finding that the balance of harms weighs againstgranting the injunction or that the public interest would be adversely affected by the injunction, the District Court—regardless of whether it properly assessed th e merits of UEC’s position or the possibility of irreparable harm—did not abuse i ts discretion in denying the permanent injunction.
III. Conclusion For the foregoing reasons, we AFFIRM the District Court’s denial of a permanent injunction. We DENY Canyon Fuel’s motion to supplement the appendix. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge04-4153 , Utah Environmental Congress v. Bureau of Land Management

HENRY, J., concurring.
I concur fully in the court’s conclusion. I write separately only to note a lingering concern in this case, which although it d oes not compel another outcome, still gives me pause. In a slightly different context, but still one invo lving doing the right thing, the left hand should not know what the right hand i s doing. See Matthew 6:3 (King James). Here, unfortunately, it appears the left hand may not know what the left hand is doing. That is, I might be able t o understand the BLM and the Forest Service not communicating with each other. But what is difficult is that the Forest Service’s actions suggest that in this m atter it did not communicate with itself. The Forest Service, as an agency of the Department of Agriculture, manages National Forests. In the context of mining , the Forest Service is charged with protecting the surface estate of land owned by the people of the United States through their government. Specifically, the Forest Service must insure that mining "operations . . . . shall be conducted so a s to minimize adverse environmental impacts on National Forest System sur face resources." 36 C.F.R. §
228.1. In this case we have an obviously fragile ecosystem . In the opening stages of this controversy, the Forest Service made very c lear its concerns about mining- 2 -

under streams; indeed, that is why stipulation 9 wa s made a part of the agreement. Subsidence mining is so named because it–apparentlyalmost always–causes subsidence, which is a rapid sinking of the surface . Of course, where a river is involved, such subsidence causes additional concern to downstream users, and to the surrounding landowners. I am not qualified to analyze, nor do the parties present detailed arguments evaluating the aftereffe cts of this subsidence on this stream, which, fortunately for this purpose, appear s not to involve much water. But, at the outset, the Forest Service was very con cerned with subsidence in the stream. As their letter of May 8, 2003, states: we have concluded that there would be a substantial risk to water flow and the related riparian and aquatic ecosystem s in the canyon for portions of the stream channel. The value of t hese resources is especially prominent considering the current drough t. BLM App. 278 (Letter from Forest Service to BLM, dated May 8, 2003). Furthermore, the Acting Forest Supervisor concluded that there [was] insufficient new information and there are too many unknowns regarding the duration of effects to cause further evaluation of the proposal and modify the original decisions document in the ROD. Id. at 279. However, later in the process the Forest Service seemed to admit that it simply dropped the ball. That is, despite its ea rlier serious concern about subsidence mining under a stream, the Forest Servic e concluded that it had not adequately perfected its concern so it was still en titled to object:- 3 -

As documented in the ROD, it was the intent of the [Forest Service] that consent to the coal lease was conditioned upon restriction of mining operations under the drainage in the East Fo rk of Box Canyon that would cause subsidence. . . . [T]hose terms w ere not clearly carried forward in the stipulations attached to the lease that became a contract between the United States and the lessee. BLM App. 429 (Letter from Forest Service to BLM, dated Jul. 29, 2003). Despite this omission, the Forest Service "share[s] the con cerns of the Manti-La-Sal National Forest that subsidence of the area could i mpact the stream and associated ecosystem." Id. Given the terms of the lease, th e Forest Service had to "recognize that the BLM has the responsibility for administration of federal leases." Id. at 429-30. It is difficult to square the earlier concerns with the later action. But, as the plaintiffs did not adequately present their cas e on appeal, and as the Forest Service did not preserve its ability (and responsib ility, it seems) to participate in the final process, we are left with the Office of S urface Mining's conclusion that the submitted permit revision constituted a mining plan modification within 30 C.F.R. § 746.11(a) and 746.18(d)(6) (requiring a “c hange in post-mining land use” to prompt Secretarial approval). Our legal co nclusion is required; the BLM action is not arbitrary and capricious under these facts. We can only hope that the Office of Surface Mining’s conclusion, made withoutthe benefit of active Forest Service consultation, turns out to be accurate.