                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 15 2004
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

UTAH ENVIRONMENTAL
CONGRESS,

                Plaintiff - Appellant,

          v.
                                                          No. 04-4153
U.S. BUREAU OF LAND                              (D. Ct. No. 2:03-CV-911 DB)
MANAGEMENT, an agency within                               (D. Utah)
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 - Intervenor-
                Appellee.

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

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

                Amicus Curiae.


                             ORDER AND JUDGMENT *


      *
          This order and judgment is not binding precedent, except under the
                                                                      (continued...)
Before TACHA, Chief Circuit Judge, HENRY, Circuit Judge, and WHITE,
District Judge. **


      Plaintiff-Appellant Utah Environmental Congress (“UEC”) 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 jurisdiction under 28 U.S.C. § 1291,

DENY all pending motions, and because the uncontested findings provide a

sufficient basis for denying the permanent injunction, AFFIRM.

                                  I. Background

      In 1999, following an extensive administrative review process, Defendant-

Intervenor-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 Sal National Forest. In

February 2003, Canyon Fuel sought to modify this arrangement to permit mining


      *
       (...continued)
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         Honorable Ronald A. White, District Judge, United States District Court
for the Eastern District of Oklahoma, sitting by designation.

                                        -2-
in areas not previously approved for mining. On July 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. The 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 the 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 district court’s factual findings

unless they are clearly erroneous and review application of legal principles de

novo.” Id.

      To grant a permanent injunction, a district court must find that four

requirements have been satisfied: “(1) actual success 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


      1
       UEC did not appeal the denial of the temporary injunction for the 3L
panel, Canyon Fuel completed mining the panel, and therefore only the 4L panel
remains under consideration in this appeal.

                                         -3-
issued, will not adversely affect the public interest.” 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 District Court erred in finding that

the first two requirements were not met. UEC, however, does not contest the

District Court’s findings with respect to the last two requirements. Because a

permanent injunction cannot be granted unless all four requirements are satisfied,

we need only consider these latter two requirements to decide this appeal.

      The third requirement for granting a permanent injunction requires a court

to balance the harms that would result from denying the injunction against the

harms that would result from granting the injunction. In balancing the harms, the

District Court found that the financial losses that would occur as a result of

granting the permanent injunction outweighed the “speculative claims of

environmental harm” that would result from mining. UEC does not contest this

finding on appeal.

      The fourth requirement for granting a permanent injunction requires a court

to consider whether granting the injunction would adversely affect the public

interest. The District Court found that granting the injunction would adversely

affect the public because it would prevent the mining of enough coal to provide

electricity to nearly a half million households for an entire year. UEC does not


                                         -4-
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 Court erred

in finding that the balance of harms weighs against granting the injunction or that

the public interest would be adversely affected by the injunction, the District

Court—regardless of whether it properly assessed the merits of UEC’s position or

the possibility of irreparable harm—did not abuse its 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 Judge




                                         -5-
04-4153, 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 does not compel another

outcome, still gives me pause.

         In a slightly different context, but still one involving doing the right thing,

the left hand should not know what the right hand is 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 to 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 matter 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 as to minimize adverse

environmental impacts on National Forest System surface 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 clear its concerns about mining
under streams; indeed, that is why stipulation 9 was made a part of the agreement.

Subsidence mining is so named because it–apparently almost 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 aftereffects of this subsidence on this

stream, which, fortunately for this purpose, appears not to involve much water.

But, at the outset, the Forest Service was very concerned 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 ecosystems in the canyon
      for portions of the stream channel. The value of these resources is
      especially prominent considering the current drought.

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 earlier serious concern about

subsidence mining under a stream, the Forest Service concluded that it had not

adequately perfected its concern so it was still entitled to object:


                                          -2-
      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 Fork of Box Canyon
      that would cause subsidence. . . . [T]hose terms were 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 concerns of the Manti-La-Sal

National Forest that subsidence of the area could impact the stream and associated

ecosystem." Id. Given the terms of the lease, the 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 case on appeal, and as the Forest

Service did not preserve its ability (and responsibility, it seems) to participate in

the final process, we are left with the Office of Surface 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 “change in post-mining land

use” to prompt Secretarial approval). Our legal conclusion 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 without the benefit of active Forest

Service consultation, turns out to be accurate.



                                          -3-
