EPA Region IX Meeting with San Juan Citizens Allian ce 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 Francis co) 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 re quires 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) an d 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 afte r 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 th ings piecemeal
• Doesn’t support taking units 1 and 3 offline withou t 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, bu t 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 nation al NEPA review is done in Region 9Donna House

• Jobs are important but should be viewed from the po pulation perspective – the actual employment contribution has not been looked at
• Believes both facilities should be retired, but nee d to develop a transition plan for the future.
• It is unfair that urban areas use the electricity f rom these power plants. Much of the Navajo Nation does not get electricity
• Need health studies – need help to build capacity f or these health studies from EPA or other agencies
• There is no good transition plan from fossil fuel t o 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 sho ulder the burden Robyn Jackson
• Grew up on NE side of Navajo reservation
• A lot of community support for cleaning up power pl ants
• 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 N ation
• Navajo Nation needs renewable energy and needs poli tical 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 urani um 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 techni cal 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 po verty” 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 par t of a different future• Expansion of Navajo Mine is currently under litigat ion because its environmental impact report

was insufficient – judge’s decision insinuated an E IS was needed Dan Randall
• Disappointed with EPA’s decision on the ozone stand ard – 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 comb ustion waste issues so that decisions are based on science and not politics Jared Blumenfeld
• Appreciates their efforts and time to change the st atus quo
• Committed to a more formal process to develop a par tnership to come up with an energy plan for the future that EPA is accountable for that will ad dress larger cumulative impactsLegal 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 Enforc ement (OSM) approved an application by BHP Navajo Coal Company (BNCC) to re vise the mining plan at its Navajo Mine . Diné Citizens Against Ruining Our Environment and San Juan Citizens Alliance (collectively Citizens) sought judicial re view under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706. The dist rict 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 La cking 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.netUNITED STATES CO URT 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 Circu it, 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 Reclamati on and Enforcement (OSM) approved an application by BHP Navajo Coal Company (BN CC) to revise the mining plan at its Navajo Mine. Diné Citizens Against Ruin ing Our Environment an d San Juan Citizens Alliance (collectively Citiz ens) sought judicial review under the Administrative Procedures Act (APA), 5 U.S. C. §§ 701-706. The distri ct 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 co al 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 dist rict 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. 1 992) (“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 immedi ately appealable.”). 2 Venue was proper in Colo rado under 28 U.S.C. § 1 391(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 Reclam ation 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, af ter performing an Environmen tal Analysis (2005 EA) and making a finding of no signifi cant impact (FONSI), OSM a pproved the application. In July 2007, C itizens 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 Environm ental Impact Statement (EIS) under NEPA rather than a less comprehens ive Environmental Assessment. The court then turned to the 2005 EA, concluding it was deficient in se veral respects. It remanded the matter to OSM to correct the deficienci es and reassess its FONSI. 5 OSM and BNCC appealed. OS M 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 unde r 28 U.S.C. § 1291 because th e 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 rene wed with OSM every five years. In 2004, OSM renewed the permit. Citizens contes ted 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) (quot ations omitted). “The remand by a district court to an administrative agency for further proceedings is ordinar ily 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” excepti on to the rule “when the issu e presented is both urgent and important.” Trout Unlimited , 441 F.3d at 1218-19. “If th ese two conditions are met, this court will apply a balancing test and asse rt jurisdiction if the danger of injustice by delaying appellate review outweighs the inco nvenience 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 wa s 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 judici al 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 follo wing remand proceedings); Bender , 744 F.2d at 1428 (finding urgency where ag ency 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 ap peal and BNCC is not foreclosed from reraising (if necessary) its curre nt issues in later proceedings or attacking any adverse decision resulting from remand. Although postpon ed 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 Ci r. 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 dupli cation that could resu lt from multiple or illtimed appeals.”) (quotations omitted). In opposing dismissal, BNCC pr incipally 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 failin g 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 anal ysis if it wished to execute the lease. The State of New Me xico, a coalition of envi ronmental groups, and an organization promoting the interests of o il and gas producers in the State appealed. The BLM argued we lacked jurisdiction und er the administrative-remand rule. We disagreed for two reasons. First, the admi nistrative-remand rule is “most appropriate” when the agency ha s 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 policymak ing 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 recommenc e a proceeding, or indeed to take any action at all--it simp ly 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 approva l of BNCC’s application was quasiadjudicative because it settled BNCC’s right to revise its mining pl an 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 adjudi cation 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 remande d this case to OSM to conduct further proceedings consistent with NEPA. Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 6- 7 - Finally, BNCC argues Citizens are estoppe d from claiming the district court’s order is not final or appealable because th ey made the opposite argument in a motion for summary decision before the United States Depa rtment of Interior’s Office of Hearing and Appeals (OHA). 7 This argument lacks merit becau se “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 (1 982) (citation omitted); see also Goodyear Atomic Corp. v. Miller , 486 U.S. 174, 17 8 (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 app lication to revise its mining plan to include mining in Area IV North, it also proposed realigning Burn ham Road, a public road traversing a portion of the Navajo Mine . OSM’s approval of the application was conditioned on, among other things, BNCC fo llowing OSM’s regulatory procedures for relocating a public road prior to disturbing Burnham Road. The dist rict court concluded the realignment of Burnham Road was a “c onnected action” to BNCC’s revision of its mining plan and therefore NEPA required both actions to be addressed in the same environmental impact an alysis. Prior to the district court’s decision, BNCC had applied for and received OSM’s approval to reali gn Burnham Road. Citizens challenged that approval with the OHA. In their motion fo r summary decision with the OHA, Citizens argued the OHA should vacate OS M’s approval of the realignment because the district court in this action had already determin ed the Burnham Road realignment was a connected action to the Area IV North mine expansion and therefor e must be addressed in the same environmental impa ct analysis. They based th eir argument on principles of collateral estoppel and res judicata. Appellate Case: 11-1004 Document: 01018700793 Date Filed: 08/26/2011 Page: 7