EPA Region IX Meeting with San Juan Citizens Alliance and Dine CARE 

on Four Corners Power Plant 

November 8, 2011 

7:50AM – 8:25AM (Mountain Standard Time) 

Farmington, New Mexico 

Attendees: 

Mike Eisenfeld, San Juan Citizens Alliance (SJCA) 

Dan Randall, SJCA 

Donna House, Dine CARE 

Robyn Jackson, Dine CARE 

Lori Goodman, Dine CARE 

Jared Blumenfeld, EPA Region IX 

Margot Perez-Sullivan, EPA Region IX 

Anita Lee, EPA Region IX (by phone from San Francisco) 

Brief Summary of Discussion: 

Introductions 

Brief welcome and thanks from Jared Blumenfeld 

Mike Eisenfeld 

• BART for Four Corners Power Plant (FCPP) should be most stringent, NO limit similar to BART 

for San Juan Generating Station (SJGS) 

• SJCA believes the renewal of the coal mine lease requires an EIS, but from a broader perspective, 

SJCA also believes an EIS is needed for the entire coal complex to address many issues (Navajo 

Mine permitting, leasing, Coal combustion waste) and views both SJGS and FCPP to be part of 

the same coal complex 

Jared Blumenfeld 

• Understands BIA is in the beginning stages of doing an EIS for mine 

Dan Randall 

• Support alternative to BART but concerned that after retrofits there will still be pollution issues 

• Recommends comprehensive look at whole complex that involves EIS for everything – mine, 

power plant, and alternatives, rather than doing things piecemeal 

• Doesn’t support taking units 1 and 3 offline without adequate controls on units 4 and 5, the result 

will be a 1500MW plant without adequate controls 

• All decisions are being looked at individually, not as one system (coal, water use, power plant). 

Too piece meal, not cumulative. 

Jared Blumenfeld 

• Understands that holistic treatment makes sense, but only certain federal actions trigger NEPA, 

and it is unlikely that NEPA will be inserted into the BART rulemaking discussion 

• BART does not trigger NEPA 

• Explained NEPA workload in Region 9 – 26% of national NEPA review is done in Region 9 
Donna House 

• Jobs are important but should be viewed from the population perspective – the actual employment 

contribution has not been looked at 

• Believes both facilities should be retired, but need to develop a transition plan for the future. 

• It is unfair that urban areas use the electricity from these power plants. Much of the Navajo Nation 

does not get electricity 

• Need health studies – need help to build capacity for these health studies from EPA or other 

agencies 

• There is no good transition plan from fossil fuel to alternative fuel 

• Understands the economic dilemma 

• Very large employers on Navajo/Hopi. More than 50% of revenue on Navajo and more than 90% 

of revenue on Hopi 

• Employment is largely seasonal; Indians are on the bottom in the workforce 

• Unfair that Navajos don’t’ have electricity but shoulder the burden 

Robyn Jackson 

• Grew up on NE side of Navajo reservation 

• A lot of community support for cleaning up power plants 

• Sees effects of pollution in creating health burden, her mother, an RN, sees asthma more often 

now than before 

• People will accept renewable energy 

Lori Goodman 

• Of 140 kids that were supposed to get H1N1 vaccine, only 40 could receive the shot because 

others had health issues 

• Lack of health care funds 

• 25% vacancy rate for doctors and nurses in Navajo Nation 

• Navajo Nation needs renewable energy and needs political and technical support to transition 

away from coal 

• Offered to provide URL of study of renewable energy potential on Navajo Nation 

• Dine CARE has worked with President Shelly on uranium issues – can work together again on 

renewable energy as long as there is political and technical support for it 

• 99% of Navajos are for transition to renewable 

• Tribal government needs positive support and technical support 

Donna House 

• The impact of the power plants on cultural sites is not explored – sky is very important to Dine, 

Hopi, and Pueblos 

• Natives Americans are suffering from “ecological poverty” 

Mike Eisenfeld 

• There are national organizations watching BART very closely, must consider tourism and long 

term viability of Four Corners region 

• If the facilities can’t retrofit, they should shut down 

• APS/BHP/PNM – time for these companies to pay up 

• The existing transmission infrastructure can be part of a different future 
• Expansion of Navajo Mine is currently under litigation because its environmental impact report 

was insufficient – judge’s decision insinuated an EIS was needed 

Dan Randall 

• Disappointed with EPA’s decision on the ozone standard – San Juan County might have been 

nonattainment if a new lower standard was developed

• Supports EPA on finalizing the Mercury rule 

• Hopes EPA will continue to be involved in coal combustion waste issues so that decisions are 

based on science and not politics 

Jared Blumenfeld 

• Appreciates their efforts and time to change the status quo 

• Committed to a more formal process to develop a partnership to come up with an energy plan for 

the future that EPA is accountable for that will address larger cumulative impacts 
Legal Case Status on Navajo Mine NEPA

Mike Eisenfeld Mike Eisenfeld to: Anita Lee 11/08/2011 03:48 PM

Cc: Margot PerezSullivan

1 attachment

Order Dismissing Appeal.pdf

Anita - please see attached the status of the legal case concerning Navajo Mine I mentioned this 

morning. Thank you. 

The Office of Surface Mining Reclamation and Enforcement (OSM) approved an

application by BHP Navajo Coal Company (BNCC) to revise the mining plan at its

Navajo Mine. Diné Citizens Against Ruining Our Environment and San Juan Citizens

Alliance (collectively Citizens) sought judicial review under the Administrative

Procedures Act (APA), 5 U.S.C. §§ 701-706. The district court concluded OSM had

violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h, in

approving the application and remanded the case for further proceedings. BNCC seeks to

appeal from the district court’s remand order. 1 Lacking jurisdiction, we must dismiss the

appeal as premature.

Mike Eisenfeld

New Mexico Energy Coordinator

San Juan Citizens Alliance

108 North Behrend, Suite I

Farmington, New Mexico 87401

office 505 325-6724

cell 505 360-8994

meisenfeld@frontier.net
UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

DINE CITIZENS AGAINST RUINING 

OUR ENVIRONMENT; SAN JUAN 

CITIZENS ALLIANCE, 

 Plaintiffs - Appellees, 

v. 

AL KLEIN, in his official capacity as 

Western Regional Director, Office of 

Surface Mining Reclamation and 

Enforcement, Denver, Colorado; OFFICE 

OF SURFACE MINING RECLAMATION 

AND ENFORCEMENT, a federal agency 

within the U.S. Department of Interior, 

 Defendants. 

------------------------------ 

ARIZONA PUBLIC SERVICE 

COMPANY, 

 Intervenor, 

BHP NAVAJO COAL COMPANY, 

 Intervenor - Appellant.

No. 11-1004 

(D. Colo.) 

(D.C. No. 1:07-CV-01475-JLK) 

ORDER DISMISSING APPEAL

Before O'BRIEN, GILMAN, and HOLMES, Circuit Judges.*

 

*

 Honorable Ronald Lee Gilman, Circuit Court Judge, United States Court of 

Appeals for the Sixth Circuit, sitting by designation. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 26, 2011

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 1
- 2 - 

The Office of Surface Mining Reclamation and Enforcement (OSM) approved an 

application by BHP Navajo Coal Company (BNCC) to revise the mining plan at its 

Navajo Mine. Diné Citizens Against Ruining Our Environment and San Juan Citizens 

Alliance (collectively Citizens) sought judicial review under the Administrative 

Procedures Act (APA), 5 U.S.C. §§ 701-706. The district court concluded OSM had 

violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h, in 

approving the application and remanded the case for further proceedings. BNCC seeks to 

appeal from the district court’s remand order. 1 Lacking jurisdiction, we must dismiss the 

appeal as premature. 

I. BACKGROUND 

The Navajo Mine is a large open pit coal mine on tribal reservation lands in 

northwestern New Mexico.2

 BNCC operates the mine under a long-standing lease with 

the Navajo Nation and a surface coal mining permit issued by OSM.3

 In December 2004, 

BNCC filed an application with OSM to revise its approved mining plan at the Navajo 

 

1

 BNCC also seeks to appeal from the district court’s order denying its motion to 

dismiss based on, inter alia, Citizens’ failure to exhaust administrative remedies and the 

statute of limitations/laches. That order by itself is not immediately appealable. See 

Decker v. IHC Hosps., Inc., 982 F.2d 433, 435 (10th Cir. 1992) (“Where . . . the basis of 

the motion to dismiss is not an immunity from suit, the courts hold that an order denying 

the motion is not immediately appealable.”). 

2

 Venue was proper in Colorado under 28 U.S.C. § 1391(e) because the agency 

decisions at issue in this case were made by OSM’s Western Regional office located in 

Denver, Colorado. Neither party contests venue.

3

 OSM has permitting and other authority over BNCC’s mine operations pursuant 

to the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1328. 

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 2
- 3 - 

Mine to include mining in a 3,800-acre area administratively designated as “Area IV 

North.” In October 2005, after performing an Environmental Analysis (2005 EA) and 

making a finding of no significant impact (FONSI), OSM approved the application. 

In July 2007, Citizens filed the instant lawsuit.4

 BNCC intervened. The district 

court concluded OSM’s approval of BNCC’s application was the type of action which 

normally requires preparation of an Environmental Impact Statement (EIS) under NEPA 

rather than a less comprehensive Environmental Assessment. The court then turned to 

the 2005 EA, concluding it was deficient in several respects. It remanded the matter to 

OSM to correct the deficiencies and reassess its FONSI.5

 

OSM and BNCC appealed. OSM later dismissed its appeal. It appears OSM is 

currently in the process of re-analyzing BNCC’s application. 

II. DISCUSSION 

BNCC attacks the district court’s decision on all fronts. Citizens claim there is no 

final, appealable, order under 28 U.S.C. § 1291 because the district court remanded the 

case to OSM for further proceedings. We agree. 

Our jurisdiction extends only to review of “final decisions of the district courts of 

the United States . . . .” 28 U.S.C. § 1291. “The purpose of the finality requirement is to 

avoid piecemeal review.” Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). “A 

 

4

 BNCC’s surface mining permit must be renewed with OSM every five years. In 

2004, OSM renewed the permit. Citizens contested that renewal, but the district court 

determined the issue was mooted by OSM’s re-renewal of the permit in 2009. Citizens 

have not challenged that determination on appeal. 

5

 While noting it could require OSM to prepare an EIS, the district court 

determined it was more appropriate to remand the matter, permitting OSM to reconsider. 

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 3
- 4 - 

final decision is one that ends the litigation on the merits and leaves nothing for the court 

to do but execute the judgment.” Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 

1153, 1156 (10th Cir. 2007) (quotations omitted). “The remand by a district court to an 

administrative agency for further proceedings is ordinarily not appealable because it is 

not a final decision.” Bender, 744 F.2d at 1426-27; see also Trout Unlimited v. United 

States Dep’t of Agric., 441 F.3d 1214, 1218 (10th Cir. 2006); Baca-Prieto v. Guigni, 95 

F.3d 1006, 1008 (10th Cir. 1996). This is often referred to as the administrative-remand 

rule. See, e.g., S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 970 (10th Cir. 

2008); Trout Unlimited, 441 F.3d at 1218; Baca-Prieto, 95 F.3d at 1008.6

There is a “narrow” exception to the rule “when the issue presented is both urgent 

and important.” Trout Unlimited, 441 F.3d at 1218-19. “If these two conditions are met, 

this court will apply a balancing test and assert jurisdiction if the danger of injustice by 

delaying appellate review outweighs the inconvenience and costs of piecemeal review.” 

Id. at 1218 (quotations omitted). 

In this case, although the issues may be important (an issue we need not decide), 

they are not urgent. Issues are urgent when the party (usually the federal agency) raising 

them would be foreclosed from raising them in later proceedings. See, e.g., S. Utah 

Wilderness Alliance, 525 F.3d at 970 (concluding the issue was not urgent where 

potential intervenors can re-raise legal claims if BLM issues unsatisfactory decision on 

remand); Trout Unlimited, 441 F.3d at 1219 (the issue was not urgent where Defendants-

 

6

 As we explained in New Mexico ex rel. Bill Richardson v. BLM, 565 F.3d 683, 

698 (10th Cir. 2009), and reiterate infra, the administrative-remand rule is most 

appropriate when the action at issue is adjudicative or quasi-adjudicative. 

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 4
- 5 - 

Intervenors can seek administrative and judicial review if dissatisfied with the Forest 

Service’s decision on remand); Baca-Prieto, 95 F.3d at 1009 (appellate review was 

appropriate where agency would have no appeal following remand proceedings); Bender, 

744 F.2d at 1428 (finding urgency where agency could not seek review of its own 

administrative decisions and therefore may be precluded from appealing after remand). 

Here, OSM has no interest in pursuing this appeal and BNCC is not foreclosed from reraising (if necessary) its current issues in later proceedings or attacking any adverse 

decision resulting from remand. Although postponed review in this case might result in 

added costs, delay and uncertainty, such “inconveniences . . . do not create appellate 

jurisdiction where it does not otherwise exist.” Trout Unlimited, 441 F.3d at 1219 n.2; 

see also Boughton v. Cotter Corp., 10 F.3d 746, 752 (10th Cir. 1993) (“Although wellestablished rules of appealability might at times cause an action to be determined 

unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling 

the delay, harassment, expense, and duplication that could result from multiple or illtimed appeals.”) (quotations omitted). 

In opposing dismissal, BNCC principally relies on our decision in New Mexico ex 

rel. Bill Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009), but it is inapposite. That 

case involved the BLM’s decision to amend the Resource Management Plan for New 

Mexico’s Otero Mesa to allow fluid mineral development and its later grant of an oil and 

gas lease on a portion of those lands. The district court found in favor of the BLM as to 

the claims pertaining to the amended Resource Management Plan, but concluded the 

BLM had violated NEPA in failing to conduct a site-specific environmental analysis prior 

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 5
- 6 - 

to issuing the oil and gas lease. It directed the BLM to prepare such analysis if it wished 

to execute the lease. The State of New Mexico, a coalition of environmental groups, and 

an organization promoting the interests of oil and gas producers in the State appealed. 

The BLM argued we lacked jurisdiction under the administrative-remand rule. We 

disagreed for two reasons. First, the administrative-remand rule is “most appropriate” 

when the agency has acted in an adjudicative capacity, i.e., when the agency has 

adjudicated rights. 565 F.3d at 697-98. Because the BLM’s decision to amend the 

Resource Management Plan was a policymaking decision, it was acting in a quasilegislative, not adjudicative, capacity. Id. at 698. Second, we determined the district 

court’s order did 

not square with the traditional notion of a “remand,” wherein the reviewing 

court returns an action to a lower court for further proceedings. The court’s 

order did not require BLM to recommence a proceeding, or indeed to take 

any action at all--it simply enjoined BLM from further NEPA violations. If 

[BLM] wishes to allow oil and gas leasing in the plan area it must 

undertake additional analysis based on the district court’s memorandum 

opinion, but it retains the option of ceasing such proceedings entirely. 

Id. at 698. 

Here, to the contrary, OSM’s approval of BNCC’s application was quasiadjudicative because it settled BNCC’s right to revise its mining plan to include mining 

in Area IV North. See id. at 699 n.17 (stating an agency’s issuance of a permit “falls 

closer to the traditional concept of adjudication than the resource management plan 

process at issue here because it settles the rights of specific parties”). And, unlike in 

Richardson, the district court specifically remanded this case to OSM to conduct further 

proceedings consistent with NEPA. 

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 6
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Finally, BNCC argues Citizens are estopped from claiming the district court’s 

order is not final or appealable because they made the opposite argument in a motion for 

summary decision before the United States Department of Interior’s Office of Hearing 

and Appeals (OHA).7

 This argument lacks merit because “no action of the parties can 

confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is 

irrelevant [and] principles of estoppel do not apply . . . .” Ins. Corp. of Ireland, Ltd. v. 

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (citation omitted); see also

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178 (1988) (a court “must independently 

determine as a threshold matter that [it has] jurisdiction”). 

APPEAL DISMISSED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge 

 

7

 When BNCC filed its December 2004 application to revise its mining plan to 

include mining in Area IV North, it also proposed realigning Burnham Road, a public 

road traversing a portion of the Navajo Mine. OSM’s approval of the application was 

conditioned on, among other things, BNCC following OSM’s regulatory procedures for 

relocating a public road prior to disturbing Burnham Road. The district court concluded 

the realignment of Burnham Road was a “connected action” to BNCC’s revision of its 

mining plan and therefore NEPA required both actions to be addressed in the same 

environmental impact analysis. Prior to the district court’s decision, BNCC had applied 

for and received OSM’s approval to realign Burnham Road. Citizens challenged that 

approval with the OHA. In their motion for summary decision with the OHA, Citizens 

argued the OHA should vacate OSM’s approval of the realignment because the district 

court in this action had already determined the Burnham Road realignment was a 

connected action to the Area IV North mine expansion and therefore must be addressed 

in the same environmental impact analysis. They based their argument on principles of 

collateral estoppel and res judicata. 

Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 7