The Colorado District Court in WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement ordered the United States Office of Surface Mining to reevaluate the environmental impact of an approved mining modification plan for the Colowyo Mine after the Office failed to involve the public in the approval process and did not take a “hard look” at the modification’s effects on the environment as required by NEPA. Even though the Office of Surface Mining also approved the Trapper Mine’s modification plan without fulfilling NEPA’s requirements, WildEarth Guardians was left without a remedy regarding that mine because the coal that was affected by the modification had already been removed

Valencia, Erick A

English

University of Montana School of Law

Public Land and Resources Law Review
Volume 0 Case Summaries 2015-2016
WildEarth Guardians v. United States Office of
Surface Mining, Reclamation and Enforcement
Erick A. Valencia
Alexander Blewett III School of Law at the University of Montana, erick.valencia@umontana.edu
Follow this and additional works at: https://scholarship.law.umt.edu/plrlr
Part of the Energy and Utilities Law Commons, and the Environmental Law Commons
This Case Summary is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Public
Land and Resources Law Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Valencia, Erick A. (2015) "WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement," Public
Land and Resources Law Review: Vol. 0 , Article 8.
Available at: https://scholarship.law.umt.edu/plrlr/vol0/iss6/8
WildEarth Guardians v. United States Office of Surface Mining, Reclamation 
and Enforcement, No. 1:13-cv-00518-RBJ, ___ F. Supp. 3d ___, 2015 U.S. 
Dist. LEXIS 60617, 2015 WL 2207834 (D. Colo. May 8, 2015) 
 
Erick Valencia 
 
 The Colorado District Court in WildEarth Guardians v. United States 
Office of Surface Mining, Reclamation and Enforcement ordered the United 
States Office of Surface Mining to reevaluate the environmental impact of an 
approved mining modification plan for the Colowyo Mine after the Office failed 
to involve the public in the approval process and did not take a “hard look” at the 
modification’s effects on the environment as required by NEPA. Even though the 
Office of Surface Mining also approved the Trapper Mine’s modification plan 
without fulfilling NEPA’s requirements, WildEarth Guardians was left without a 
remedy regarding that mine because the coal that was affected by the 
modification had already been removed. 
 
I.  INTRODUCTION 
 
The dispute in WildEarth Guardians v. United States Office of Surface 
Mining, Reclamation and Enforcement dealt with the approval of mining plan 
modifications for the Colowyo and Trapper coal mines located south of Craig, 
Colorado.1 The question before the Court was whether the United States Office 
of Surface Mining, Reclamation, and Enforcement (“OSM”) failed to comply 
with the National Environmental Policy Act (“NEPA”).2 Plaintiff WildEarth 
Guardians (“Guardians”) alleged (1) that the OSM failed to take a “hard look” at 
the environmental impacts of two proposed mining modifications; (2) that the 
OSM did not involve the public in the review process; and (3) that the OSM did 
not notify the public once its Environmental Assessments (“EA”) and Findings of 
No Significant Impact (“FONSI”) were complete.3 In its complaint, Guardians 
sought vacatur of the approved mining plan modifications and an order both 
enjoining the approval of the modifications and prohibiting future mining 
operations until the OSM demonstrated compliance with NEPA and the 
Administrative Procedures Act (“APA”).4 The court agreed with Guardians on 
both allegations but determined that vacatur was not an appropriate remedy for 
either mine. Instead, the court granted the OSM 120 days to take a “hard look” at 
the environmental effects of the mining plan modification for the Colowyo Mine 
and to provide public notice about the modification.5 
                                                 
1
  WildEarth Guardians v. U.S. Office of Surface Mining, Reclamation and 
Enforcement, No. 1:13-cv-00518-RBJ, ___ F. Supp. 3d ___, 2015 U.S. Dist. LEXIS 60617, at 
*7 (D. Colo. May 8, 2015) (The court misspelled “Guardians” as “Guradians.” This summary, 
however, cites the plaintiff’s name as “WildEarth Guardians”). 
2
  Id. at *1. 
3
  Id. at *12. 
4
  Id. 
5
  Id. at *49. 
  
 
2 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
 
 
II.  FACTUAL AND PROCEDURAL BACKGROUND 
 
 The two mines central to the dispute, the Colowyo Mine and the Trapper 
Mine, are located south of Craig, Colorado, and have operated since the 1970s.6 
The Colowyo Mine sought to increase its mining area by 6,050 acres to recover 
an additional 5,219 acres of coal.7 It submitted a permit application on July 3, 
2006, and published notice of its application in two local newspapers on August 
18, 2006.8 The Trapper Mine submitted an application on November 5, 2007, to 
recover 8.1 million tons of coal on 312 additional acres.9 The Trapper Mine 
published notice of its permit application on February 19, 2009, and again in July 
2009.10 Both mines have intervened in this case.11 
 The State of Colorado, through the Colorado Division of Reclamation, 
Mining and Safety (“CDRMS”), has the authority to regulate coal mining within 
the State.12 The CDRMS approved both mining plan modifications after thirty-
day comment periods elapsed without requests for public hearings.13 The OSM 
required both mines to submit mining plan modifications because of the changes 
in location and the amount of coal proposed to be mined.14 The OSM prepared an 
EA for each mine and concluded that neither would result in significant 
environmental impacts.15 The OSM issued a FONSI for the Colowyo Mine on 
May 8, 2007, recommending the modification’s approval, and the modification 
was approved on June 15, 2007.16 A FONSI was issued for the Trapper Mine on 
October 26, 2009, and the modification was approved on November 27, 2009.17 
 Guardians filed this suit seeking (1) a declaration that OSM had violated 
NEPA and the APA; (2) vacatur of the approved mining plan modifications; and 
(3) an order enjoining the OSM and the Secretary of the Interior from reissuing 
mining plan modifications until they could demonstrate compliance with 
NEPA.18 
 
III.  ANALYSIS 
 
NEPA requires that government agencies inform interested parties of 
“NEPA-related hearings, public meetings, and the availability of environmental 
                                                 
6
  Id. at *7, *9. 
7
  Id. at *8. 
8
  Id. 
9
  Id. at *10. 
10
  Id. 
11
  Id. at *3. 
12
  Id. at *7 (citing 30 C.F.R. § 906.10 (2015)). 
13
 Id. at *8, *11. 
14
  Id. at *9, *11. 
15
  Id. 
16
  Id. at *9. 
17
  Id. at *11. 
18
  Id. at *12. 
  
 
2015 WILDEARTH GUARDIANS V. UNITED STATES OFFICE OF 3 
SURFACE MINING, RECLAMATION AND ENFORCEMENT 
 
documents” 19 by providing public notice “before decisions are made[,] and 
before actions are taken.”20 The OSM is required to notify the public once EAs 
and FONSIs are completed.21 Additionally, NEPA requires that agencies take a 
“hard look” at the possible environmental impacts of approving a mining plan 
modification.22 The agreement allowing the State of Colorado to regulate coal 
mining within the state does not relieve the OSM of its duties under NEPA, as 
the agreement requires each to “‘concurrently carry out its responsibilities.’”23 
The agency must provide enough evidence to support its determination of 
whether to prepare an Environmental Impact Statement or a FONSI.24  
The court first concluded that the OSM failed to even minimally involve 
the public before issuing its decision.25 Although the CDRMS published notice of 
its proposed decisions for both mines in local newspapers, the Court determined 
that the OSM failed to notify the public before it made its 
decision.26Additionally, the court determined that the OSM failed to provide 
notice once its EA and FONSIs were complete and became available to the 
public.27 
 The court then addressed the OSM’s failure to take a hard look at the 
proposed modifications’ environmental impacts, concluding that the OSM had 
not sufficiently considered the direct and indirect environmental effects that the 
modifications would create.28 The court determined that the OSM failed to 
adequately review the CDRMS’s mining plan approvals, suggesting that the 
OSM merely “rubber-stamped” them.29 
 Upon reviewing the OSM’s contention that it took a sufficiently hard 
look at the direct impact of the modifications on air quality, the court found that 
the OSM had relied on substantially outdated reports.30 The pollutant 
concentrations in the report had been compared to air quality standards from 
1979 and were only supposed to provide an analysis of coal development through 
1990.31 The court reasoned that since air quality standards have become more 
stringent since 1979, the OSM should have considered the new standards in its 
analysis of the modifications’ impact.32 
 The court dismissed Colowyo’s argument that coal combustion was not 
an indirect effect of the modification because the plan did not cause coal 
                                                 
19
  Id. at *26 (citing 40 C.F.R. § 1506.6(b) (2015)). 
20
  Id. (citing 40 C.F.R. § 1500.1(b) (2015)). 
21
  Id. at *28 (citing 43 C.F.R. § 46.305(c) (2014)). 
22
  Id. at *30. 
23
  Id. at *35 (quoting 30 C.F.R. § 906.30, art. VI(8) (2015)). 
24
  Id. at *30 (citing 40 C.F.R. § 1508.9(a)(1) (2015)). 
25
  Id. at *27. 
26
  Id. at *9-10. 
27
  Id. at *28. 
28
  Id. at *47. 
29
  Id. at *34. 
30
  Id. at *37-38. 
31
  Id. at *38. 
32
  Id. at *39. 
  
 
4 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
 
combustion.33 The court reasoned that since the plan increased the amount of coal 
available for combustion, combustion was an indirect effect of the modification 
approval.34 The court determined that the OSM would not be, as it argued, 
impermissibly directing the combustion of coal, but rather would simply be 
considering the environmental impact of the increase in combustion resulting 
from the additional availability of coal.35 Furthermore, both mines estimated the 
amount of coal to be mined and used solely by the Craig Power Plant, thus 
making it reasonable to expect the OSM to predict the impact on the environment 
due to the combustion of coal.36 In coming to this conclusion, the court 
reaffirmed its holding in High Country Conservation Advocates v. United States 
Forest Service,37 stating that if the amount of coal to be mined could be 
estimated, then the OSM “could likewise predict the environmental effects of the 
combustion of that coal.”38 
 Ultimately, the court declared that the OSM violated NEPA by failing to 
take a hard look at the environmental impacts of the modifications before issuing 
its FONSIs; by failing to involve the public in the preparation of its EAs; and by 
failing to notify the public once its EAs were completed.39 The court found that 
vacatur was not appropriate with regard to the Trapper Mine because the coal 
affected by the modification had already been mined. However, the court 
concluded that vacatur of the Colowyo modification was timely.40 Even so, the 
court did not order vacatur of the Colowyo modification plan because the 
benefits did not outweigh the potential costs.41 The court instead provided a 120-
day period during which the OSM would be required to take a hard look at the 
environmental impacts of the Colowyo modification and provide proper public 
notice and opportunity for involvement.42 If after the 120-day period the OSM 
had not yet completed the process, vacatur would then be ordered.43 
 
IV.  CONCLUSION 
 
 The Court ruled that OSM had failed to fulfill its requirements under 
NEPA, but after a cost-benefit analysis it concluded that immediate vacatur was 
not appropriate. The Court noted two costly effects of vacating the Colowyo 
modification: the possible layoff of mine employees and significant hardship for 
the power plant.44 Although vacatur of the modification, possible layoffs, and 
                                                 
33
  Id. at *42. 
34
  Id. at *40, *42. 
35
  Id. at *43. 
36
  Id. at *44-45. 
37
  52 F. Supp. 3d 1174 (D. Colo. 2014).  
38
  WildEarth Guardians, 2015 U.S. Dist. LEXIS 60617, at *45 (citing High 
Country, 52 F. Supp. 3d at 1196). 
39
  Id. at *47. 
40
  Id. 
41
  Id. at *48. 
42
  Id. at *48-49. 
43
  Id. 
44
  Id. at *48. 
  
 
2015 WILDEARTH GUARDIANS V. UNITED STATES OFFICE OF 5 
SURFACE MINING, RECLAMATION AND ENFORCEMENT 
 
power plant hardship continues to remain one possible scenario, the more likely 
alternative seems to be that the OSM will fulfill its notice requirements and 
satisfy the court that it has taken a hard look at the modification’s environmental 
impacts. Indeed, the OSM has already taken significant steps toward fulfilling its 
obligations. The OSM hired a consultant to help it prepare its EA and received 
over 1,000 comments.45 The EA was published, and became available to the 
public, on July 27, 2015.46 The OSM also issued a Finding of No Significant 
Impact for the Colowyo modification plan.47 
                                                 
45
  Fed. Defs.’ Status Report at 2, WildEarth Guardians v. United States Office of 
Surface Mining, Reclamation and Enforcement, 2015 U.S. Dist. LEXIS 60617 (D. Colo. May 
8, 2015) (No. 1:13-cv-00518-RBJ).  
46
  U.S. DEP’T OF THE INTERIOR, U.S. OFFICE OF SURFACE MINING, RECLAMATION 
AND ENFORCEMENT, COLOWYO COAL MINE SOUTH TAYLOR/LOWER WILSON PERMIT 
EXPANSION AREA PROJECT FEDERAL MINING PLAN MODIFICATION: ENVIRONMENTAL 
ASSESSMENT (July 27, 2015), available at http://www.wrcc.osmre.gov/initiatives/colowyo 
MineSouthTaylor/documents/Colowyo_SouthTaylor_LowerWilson_EA_20150727.pdf. 
47
  U.S. DEP’T OF THE INTERIOR, U.S. OFFICE OF SURFACE MINING, RECLAMATION 
AND ENFORCEMENT, COLOWYO COAL MINE SOUTH TAYLOR/LOWER WILSON PERMIT 
EXPANSION AREA PROJECT FEDERAL MINING PLAN MODIFICATION: UNSIGNED FINDING OF NO 
SIGNIFICANT IMPACT (July 27, 2015), available at http://www.wrcc.osmre.gov/initiatives/ 
colowyoMineSouthTaylor/documents/Colowyo_SouthTaylor_LowerWilson_unsigned_FONS
I_20150727.pdf. 


WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement

University of Montana

Public Land & Resources Law Review Volume 0 Case Summaries 2015-2016 Article 8 August 2015 WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement Erick A. Valencia Alexander Blewett III School of Law at the University of Montana, erick.valencia@umontana.edu Follow this and additional works at: https://scholarworks.umt.edu/plrlr  Part of the Energy and Utilities Law Commons, and the Environmental Law Commons Let us know how access to this document benefits you. Recommended Citation Valencia, Erick A. (2015) "WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement," Public Land & Resources Law Review: Vol. 0 , Article 8. Available at: https://scholarworks.umt.edu/plrlr/vol0/iss6/8 This Case Summary is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Public Land & Resources Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement, No. 1:13-cv-00518-RBJ, ___ F. Supp. 3d ___, 2015 U.S. Dist. LEXIS 60617, 2015 WL 2207834 (D. Colo. May 8, 2015)  Erick Valencia   The Colorado District Court in WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement ordered the United States Office of Surface Mining to reevaluate the environmental impact of an approved mining modification plan for the Colowyo Mine after the Office failed to involve the public in the approval process and did not take a “hard look” at the modification’s effects on the environment as required by NEPA. Even though the Office of Surface Mining also approved the Trapper Mine’s modification plan without fulfilling NEPA’s requirements, WildEarth Guardians was left without a remedy regarding that mine because the coal that was affected by the modification had already been removed.  I.  INTRODUCTION  The dispute in WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement dealt with the approval of mining plan modifications for the Colowyo and Trapper coal mines located south of Craig, Colorado.1 The question before the Court was whether the United States Office of Surface Mining, Reclamation, and Enforcement (“OSM”) failed to comply with the National Environmental Policy Act (“NEPA”).2 Plaintiff WildEarth Guardians (“Guardians”) alleged (1) that the OSM failed to take a “hard look” at the environmental impacts of two proposed mining modifications; (2) that the OSM did not involve the public in the review process; and (3) that the OSM did not notify the public once its Environmental Assessments (“EA”) and Findings of No Significant Impact (“FONSI”) were complete.3 In its complaint, Guardians sought vacatur of the approved mining plan modifications and an order both enjoining the approval of the modifications and prohibiting future mining operations until the OSM demonstrated compliance with NEPA and the Administrative Procedures Act (“APA”).4 The court agreed with Guardians on both allegations but determined that vacatur was not an appropriate remedy for either mine. Instead, the court granted the OSM 120 days to take a “hard look” at the environmental effects of the mining plan modification for the Colowyo Mine and to provide public notice about the modification.5                                                  1  WildEarth Guardians v. U.S. Office of Surface Mining, Reclamation and Enforcement, No. 1:13-cv-00518-RBJ, ___ F. Supp. 3d ___, 2015 U.S. Dist. LEXIS 60617, at *7 (D. Colo. May 8, 2015) (The court misspelled “Guardians” as “Guradians.” This summary, however, cites the plaintiff’s name as “WildEarth Guardians”). 2  Id. at *1. 3  Id. at *12. 4  Id. 5  Id. at *49.    2 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0   II.  FACTUAL AND PROCEDURAL BACKGROUND   The two mines central to the dispute, the Colowyo Mine and the Trapper Mine, are located south of Craig, Colorado, and have operated since the 1970s.6 The Colowyo Mine sought to increase its mining area by 6,050 acres to recover an additional 5,219 acres of coal.7 It submitted a permit application on July 3, 2006, and published notice of its application in two local newspapers on August 18, 2006.8 The Trapper Mine submitted an application on November 5, 2007, to recover 8.1 million tons of coal on 312 additional acres.9 The Trapper Mine published notice of its permit application on February 19, 2009, and again in July 2009.10 Both mines have intervened in this case.11  The State of Colorado, through the Colorado Division of Reclamation, Mining and Safety (“CDRMS”), has the authority to regulate coal mining within the State.12 The CDRMS approved both mining plan modifications after thirty-day comment periods elapsed without requests for public hearings.13 The OSM required both mines to submit mining plan modifications because of the changes in location and the amount of coal proposed to be mined.14 The OSM prepared an EA for each mine and concluded that neither would result in significant environmental impacts.15 The OSM issued a FONSI for the Colowyo Mine on May 8, 2007, recommending the modification’s approval, and the modification was approved on June 15, 2007.16 A FONSI was issued for the Trapper Mine on October 26, 2009, and the modification was approved on November 27, 2009.17  Guardians filed this suit seeking (1) a declaration that OSM had violated NEPA and the APA; (2) vacatur of the approved mining plan modifications; and (3) an order enjoining the OSM and the Secretary of the Interior from reissuing mining plan modifications until they could demonstrate compliance with NEPA.18  III.  ANALYSIS  NEPA requires that government agencies inform interested parties of “NEPA-related hearings, public meetings, and the availability of environmental                                                  6  Id. at *7, *9. 7  Id. at *8. 8  Id. 9  Id. at *10. 10  Id. 11  Id. at *3. 12  Id. at *7 (citing 30 C.F.R. § 906.10 (2015)). 13 Id. at *8, *11. 14  Id. at *9, *11. 15  Id. 16  Id. at *9. 17  Id. at *11. 18  Id. at *12.    2015 WILDEARTH GUARDIANS V. UNITED STATES OFFICE OF 3 SURFACE MINING, RECLAMATION AND ENFORCEMENT  documents” 19 by providing public notice “before decisions are made[,] and before actions are taken.”20 The OSM is required to notify the public once EAs and FONSIs are completed.21 Additionally, NEPA requires that agencies take a “hard look” at the possible environmental impacts of approving a mining plan modification.22 The agreement allowing the State of Colorado to regulate coal mining within the state does not relieve the OSM of its duties under NEPA, as the agreement requires each to “‘concurrently carry out its responsibilities.’”23 The agency must provide enough evidence to support its determination of whether to prepare an Environmental Impact Statement or a FONSI.24  The court first concluded that the OSM failed to even minimally involve the public before issuing its decision.25 Although the CDRMS published notice of its proposed decisions for both mines in local newspapers, the Court determined that the OSM failed to notify the public before it made its decision.26Additionally, the court determined that the OSM failed to provide notice once its EA and FONSIs were complete and became available to the public.27  The court then addressed the OSM’s failure to take a hard look at the proposed modifications’ environmental impacts, concluding that the OSM had not sufficiently considered the direct and indirect environmental effects that the modifications would create.28 The court determined that the OSM failed to adequately review the CDRMS’s mining plan approvals, suggesting that the OSM merely “rubber-stamped” them.29  Upon reviewing the OSM’s contention that it took a sufficiently hard look at the direct impact of the modifications on air quality, the court found that the OSM had relied on substantially outdated reports.30 The pollutant concentrations in the report had been compared to air quality standards from 1979 and were only supposed to provide an analysis of coal development through 1990.31 The court reasoned that since air quality standards have become more stringent since 1979, the OSM should have considered the new standards in its analysis of the modifications’ impact.32  The court dismissed Colowyo’s argument that coal combustion was not an indirect effect of the modification because the plan did not cause coal                                                  19  Id. at *26 (citing 40 C.F.R. § 1506.6(b) (2015)). 20  Id. (citing 40 C.F.R. § 1500.1(b) (2015)). 21  Id. at *28 (citing 43 C.F.R. § 46.305(c) (2014)). 22  Id. at *30. 23  Id. at *35 (quoting 30 C.F.R. § 906.30, art. VI(8) (2015)). 24  Id. at *30 (citing 40 C.F.R. § 1508.9(a)(1) (2015)). 25  Id. at *27. 26  Id. at *9-10. 27  Id. at *28. 28  Id. at *47. 29  Id. at *34. 30  Id. at *37-38. 31  Id. at *38. 32  Id. at *39.    4 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0  combustion.33 The court reasoned that since the plan increased the amount of coal available for combustion, combustion was an indirect effect of the modification approval.34 The court determined that the OSM would not be, as it argued, impermissibly directing the combustion of coal, but rather would simply be considering the environmental impact of the increase in combustion resulting from the additional availability of coal.35 Furthermore, both mines estimated the amount of coal to be mined and used solely by the Craig Power Plant, thus making it reasonable to expect the OSM to predict the impact on the environment due to the combustion of coal.36 In coming to this conclusion, the court reaffirmed its holding in High Country Conservation Advocates v. United States Forest Service,37 stating that if the amount of coal to be mined could be estimated, then the OSM “could likewise predict the environmental effects of the combustion of that coal.”38  Ultimately, the court declared that the OSM violated NEPA by failing to take a hard look at the environmental impacts of the modifications before issuing its FONSIs; by failing to involve the public in the preparation of its EAs; and by failing to notify the public once its EAs were completed.39 The court found that vacatur was not appropriate with regard to the Trapper Mine because the coal affected by the modification had already been mined. However, the court concluded that vacatur of the Colowyo modification was timely.40 Even so, the court did not order vacatur of the Colowyo modification plan because the benefits did not outweigh the potential costs.41 The court instead provided a 120-day period during which the OSM would be required to take a hard look at the environmental impacts of the Colowyo modification and provide proper public notice and opportunity for involvement.42 If after the 120-day period the OSM had not yet completed the process, vacatur would then be ordered.43  IV.  CONCLUSION   The Court ruled that OSM had failed to fulfill its requirements under NEPA, but after a cost-benefit analysis it concluded that immediate vacatur was not appropriate. The Court noted two costly effects of vacating the Colowyo modification: the possible layoff of mine employees and significant hardship for the power plant.44 Although vacatur of the modification, possible layoffs, and                                                  33  Id. at *42. 34  Id. at *40, *42. 35  Id. at *43. 36  Id. at *44-45. 37  52 F. Supp. 3d 1174 (D. Colo. 2014).  38  WildEarth Guardians, 2015 U.S. Dist. LEXIS 60617, at *45 (citing High Country, 52 F. Supp. 3d at 1196). 39  Id. at *47. 40  Id. 41  Id. at *48. 42  Id. at *48-49. 43  Id. 44  Id. at *48.    2015 WILDEARTH GUARDIANS V. UNITED STATES OFFICE OF 5 SURFACE MINING, RECLAMATION AND ENFORCEMENT  power plant hardship continues to remain one possible scenario, the more likely alternative seems to be that the OSM will fulfill its notice requirements and satisfy the court that it has taken a hard look at the modification’s environmental impacts. Indeed, the OSM has already taken significant steps toward fulfilling its obligations. The OSM hired a consultant to help it prepare its EA and received over 1,000 comments.45 The EA was published, and became available to the public, on July 27, 2015.46 The OSM also issued a Finding of No Significant Impact for the Colowyo modification plan.47                                                  45  Fed. Defs.’ Status Report at 2, WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement, 2015 U.S. Dist. LEXIS 60617 (D. Colo. May 8, 2015) (No. 1:13-cv-00518-RBJ).  46  U.S. DEP’T OF THE INTERIOR, U.S. OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT, COLOWYO COAL MINE SOUTH TAYLOR/LOWER WILSON PERMIT EXPANSION AREA PROJECT FEDERAL MINING PLAN MODIFICATION: ENVIRONMENTAL ASSESSMENT (July 27, 2015), available at http://www.wrcc.osmre.gov/initiatives/colowyo MineSouthTaylor/documents/Colowyo_SouthTaylor_LowerWilson_EA_20150727.pdf. 47  U.S. DEP’T OF THE INTERIOR, U.S. OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT, COLOWYO COAL MINE SOUTH TAYLOR/LOWER WILSON PERMIT EXPANSION AREA PROJECT FEDERAL MINING PLAN MODIFICATION: UNSIGNED FINDING OF NO SIGNIFICANT IMPACT (July 27, 2015), available at http://www.wrcc.osmre.gov/initiatives/ colowyoMineSouthTaylor/documents/Colowyo_SouthTaylor_LowerWilson_unsigned_FONSI_20150727.pdf. 

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WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement

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