AMCA COAL LEASING, INC. ET AL. (ON RECONSIDERATION)

190 IBLA 271 Decided June 20, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. Quincy St., Suite 300

Arlington, VA 22203

703-235-3750 703-235-8349 (fax)

AMCA COAL LEASING, INC., (ON RECONSIDERATION)

Decided June 20, 2017

Motion for reconsideration of AMCA Coal Leasing, Inc., 187 IBLA 57 (2016), which affirmed decisions by the Utah State Office, Bureau of Land Management, rejecting a proposed modification to a Resource Recovery and Protection Plan for the Aberdeen Mine and identifying recoverable coal reserves for calculating advance royalties to be paid in lieu of continued operation of the Aberdeen Logical Mining Unit. UTU 73865.

Reconsideration denied; request for a remand to an administrative law judge denied; and request to stay BLM decisions pending the outcome of that remand denied as moot.

1. Rules of Appeals: Reconsideration

The Board may reconsider a decision in extraordinary circumstances, but it will not grant reconsideration where the movant merely repeats arguments made in the original appeal, absent demonstrable error. Extraordinary circumstances include evidence not before the Board at the time of decision that demonstrates error in the decision or information that invalidates a premise of the Board's decision.

APPEARANCES: Denise A. Dragoo, Esq. and James P. Allen, Esq., Salt Lake City, Utah, for Appellants; Christopher J. Morley, Esq., U.S. Department of the Interior, Regional Solicitor's Office, Salt Lake City, Utah, for the Bureau of Land Management.

OPINION BY ADMINISTRATIVE JUDGE JACKSON

AMCA Coal Leasing, Inc. (AMCA), ANDALEX Resources, Inc., and UtahAmerican Energy, Inc. filed a motion for reconsideration AMCA Coal Leasing, Inc. (AMCA), 187 IBLA 57 (2016), pursuant to 43 C.F.R. § 4.403. Besides arguing that the Board erred, Appellants request a remand for a hearing

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to resolve what they characterize as unresolved material factual issues and that we stay the Bureau of Land Management (BLM) decisions affirmed in AMCA, pending the outcome of that remand.

The Board may grant reconsideration of a decision in extraordinary circumstances, which include the proffer of evidence not before the Board at the time of decision, which shows error in the Board's decision, or information that invalidates a premise of the Board's decision. Appellants largely reiterate arguments made in their original appeal and proffer new evidence they claim shows error in our decision. But neither appellants' arguments nor that evidence present extraordinary circumstances sufficient to warrant reconsideration of our decision. We therefore deny reconsideration. Since the parties' briefs and the record are sufficient to resolve this appeal and motion for reconsideration, we deny Appellants' hearing request as not needed and their stay request as moot.

The Board's Decision, Affirming BLM's Decisions

In AMCA, we affirmed a January 15, decision denying Appellants' request for a BLM determination that Logical Mining Unit (LMU) 73865 was "mined out" and to modify its Resource Recovery and Protection Plan (R2P2) so the LMU could be retained for underground access to reserves outside the LMU. We also affirmed BLM decisions that approved multiple requests by Appellants to pay advance royalties in lieu of continued operation in the LMU and identified the recoverable reserves upon which those royalties would be based for each operating year beginning on March 1, and ending on February 28, 2015. Appellants seek reconsideration of the "mined out" issue and whether BLM properly relied on out-of-date estimates of recoverable reserves for calculating its advance royalty obligations, which we address separately below.

Discussion

The Board may reconsider a decision under "extraordinary circumstances," which are defined as including: an error in our interpretation of material facts; recent judicial developments; a change in Departmental or evidence not before the Board at the time of decision and that demonstrates error in the decision.1 The Board has also reconsidered decisions due to extraordinary circumstances when the party provided information that invalidated the premise upon which the Board based its decision.2 As a general

43 C.F.R. § 4.403(d). See, e.g., Barton (On Reconsideration), 190 IBLA 1, 3

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principle, however, the Board will not grant reconsideration where a party raises new arguments without explaining why it failed to raise those arguments initially.3 We have also held a party fails to establish extraordinary circumstances by simply repeating prior arguments and specifically

the rationale for our ruling set forth in our . . . or much less addressing], the primary authorities on which our

decision was

1. Reconsideration of Our Decision Affirming a BLM Decision That Denied Appellants' Request to Modify the and Find the Aberdeen Mine Was Mined Out"

The Request for Reconsideration largely reiterates arguments raised and rejected in AMCA regarding Appellants' claim that the Aberdeen Mine was "mined out."5 We affirmed BLM's January 2015 decision because we found Appellants had not carried their burden to show a material error of fact or law:

See, e.g., Kathleen Ness (On Reconsideration), 188 IBLA 63, 65 (2016). Casey E. Folks, Jr. (On Reconsideration), 183 IBLA at 365 (quoting Debra

Smith (On Reconsideration), 180 IBLA 107, 108 (2010)); accord Anadarko Petroleum Corp. (On Reconsideration), 188 IBLA 127, 129 (2016). Compare Motion for Reconsideration at 10 ("Contrary to . . . the Board's

assumption, BLM's [January] decision stopped short of reaching the question under appeal [because its decision made no] specific factual findings regarding the exhaustion of minable LMU reserves."), ("[AMCA left] the key factual question unresolved: Is the Aberdeen LMU mined out?"), ("The Board should reconsider its Decision, and direct an administrative hearing to consider the evidence out' which BLM refused to consider."), 13-14 (BLM's January Decision fails to address the facts supporting the 'mine out' of reserves set forth in Appellants' request to modify) with Statement of Reasons (SOR) in IBLA 2015-103, filed on Feb. 2, 2015, at 7 ("BLM's [January

Decision fails to acknowledge that the Aberdeen LMU is mined out, and no coal remains to be mined."), 10 ("BLM ignores the 'mine-out' of reserves") (BLM disregarded new information presented by Appellants in January "which shows that all recoverable coal reserves were mined out from the LMU when the Aberdeen Mine was closed as of April 4, 2008."), Reply, filed on May 26, 2015, at 14 requests that the Board . . . findD that no recoverable reserves remained in the Aberdeen Mine after it was idled for safety reasons on April 4, 2008."), 17 ("[Tonnage in Appellants' January 2014 request] show that there are no minable federal reserves remaining in the LMU."); see AMCA, 187 IBLA at 63 (citing SOR), 68-69.

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Appellants' January R2P2 Request did not show to BLM's satisfaction that the LMU had been mined out. They have not proffered evidence showing that all recoverable reserves were exhausted on April 4, 2008 (or on any date thereafter). See 43 C.F.R. § 3472.1-2(e)(5). Nor have they shown force majeure has prevented them from all mining of the LMU. . . . To the contrary, Appellants consistently and repeatedly represented that the LMU contained recoverable reserves until they changed their mind in late and began claiming it was "mined out." Recoverable reserves in the LMU may be exhausted, but neither Appellants nor the record demonstrate that such is this case. See Answer at 12 ("Appellants have failed to [proffer] evidence that the Aberdeen LMU is legally mined out and have only evidenced their own business decision not [to] mine anymore."). In short, they have not carried their burden to show that BLM erred in rejecting their January 2014 request or otherwise failed to determine that the LMU was "mined

Since Appellants' motion for reconsideration simply reiterates their earlier arguments challenging the legal and factual sufficiency of BLM's January 2015 decision without adding any new arguments or new information to demonstrate error, its motion does not present "extraordinary circumstances" to warrant reconsidering our decision in AMCA.1

However, after Appellants filed their motion for reconsideration, they obtained documents from BLM under the Freedom of Information Act that they allege show that BLM knew the Aberdeen Mine was "mined out."8

We therefore turn to these documents to assess whether they show we erred in our decision.9

AMCA, 187 IBLA at 68-69; see Co., Inc., 182 IBLA 248, 256, 273 (2012); Decker Coal Co., 176 IBLA 277, 282-83 (2009); Peabody Western Coal Co., 174 IBLA 325, 335-36 (2008). See 43 C.F.R. § 4.403(f) ("The Board will not grant a motion for

reconsideration that D [m]erely repeats arguments made in the original appeal, except in cases of demonstrable error."). See Appellants' Supplemental Reply (July at 2; see also Joint

Motion for Extension of Time to Supplement Reply (July 6, 2016). 43 C.F.R. § 4.403(d)(4) ("Evidence that was not before the Board at the time

the Board's decision was issued and that demonstrates error in the decision."); see, e.g., Board of County Commissioners of Pitkin County, Colorado (On

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The documents proffered on reconsideration include internal BLM e-mails related to an effort by Stephen BLM Price Field Office, to provide the BLM State Office with options on how it could respond to January 2014 request to modify the R2P2 and assertion that the Aberdeen Mine was "mined out." These documents include two undated, draft decisions prepared by Falk.10 The first, Falk's Draft Rejection, would reject R2P2 request because it did not provide for the recovery of remaining coal reserves because the LMU had "recoverable coal reserves" | tons on August 20, when BLM approved the relinquishment of leases committed to the LMU. 1 1 The second, Falk's Draft Approval, would approve the R2P2 modification if BLM found coal remaining in the Aberdeen Mine was "insufficient to economically justify reopening the mine," in which case maximum economic recovery (MER) would be achieved and recoverable coal reserves would be "zero."12 Appellants urge us to reconsider our affirming the rejection of their claim that the Aberdeen Mine is "mined out" based on Falk's Draft Approval, and that we either find BLM's decision was arbitrary and capricious or reopen and remand this matter for an evidentiary hearing to determine disputed factual issues.13 Appellants argue that BLM's decision "failed to address the specific facts supporting mine out even though the Price Office presented this evidence in a draft decision detailing these facts."14

BLM could have conceivably reached a different conclusion and found in January 2015 that there was no more coal in the Aberdeen Mine of sufficient quantity, quality, and marketability to be profitably mined with proven technology and equipment that are commercially available and economically feasible, giving due consideration to safety, operating, processing and

Reconsideration), 187 IBLA 328, 331 (denying reconsideration when the new evidence did not invalidate the premise of the Board's decision).

See Supplemental Reply at Exhibits C (Draft Rejection) and D (Draft Approval).

Draft Rejection at 2; see AMCA, 187 IBLA at 66 (recoverable coal reserves are the part of the coal reserve base that is commercially minable, excluding what coal will be left); 43 C.F.R. § 3482.2(a)(3) ("Estimates of recoverable coal reserves . . . shall not be reduced due to production after the original estimate made by the authorized officer."); discussion infra.

Draft Approval at 2. Supplemental Reply at 4-7, 7-8 (citing 43 C.F.R. § 4.415 (Motion for a

hearing on an appeal involving questions of fact)). 4.

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transportation costs and the amount of coal to be left in the mine. The issue on appeal was not whether BLM could have reached a different result, but whether Appellants met their burden to show the State Director acted arbitrarily or capriciously in reaching the result he did. We found they did not meet their burden. Because the Falk drafts were not before the Board when we decided AMCA, the issue here is whether those documents constitute extraordinary circumstances because they demonstrate an error in our decision. Since we do not find they do, we deny reconsideration based on the Falk drafts.

The BLM decision denying request to modify the R2P2 and find the LMU "mined out" was apparently based on Falk's Draft Rejection.15 While Appellants would prefer if BLM had relied on his Draft Approval, we continue to be unpersuaded that BLM acted arbitrarily or capriciously by denying Appellants' request for modification of the R2P2. After all, it was not for Falk or the Price Field Office to decide the issue, but for the Utah State Office to decide whether the Aberdeen Mine was "mined out." Simply because BLM reached a different conclusion by relying on the Draft Rejection instead of the Draft Approval that were both prepared by the same member of the Field Office staff does not show the State Director erred or acted arbitrarily and capriciously in making the decision he did. We affirmed his January decision because Appellants consistently and repeatedly represented there were mineable coal reserves in the LMU until they changed their mind and began claiming it was "mined out" in without explaining why or proffering new evidence for that change.16 Since the Falk drafts have nothing to do with Appellants' earlier representations and they have yet to proffer any evidence for their change of heart in 2013, other than two drafts reaching opposite conclusions, we do not find they demonstrate we erred in affirming the State Director's decision. Thus, based on our review of the record and the materials proffered on reconsideration, we conclude that Appellants have not shown extraordinary circumstance under 43 C.F.R. § 4.403(d)(4), deny their motion to reconsider this aspect AMCA, and also deny their request for an evidentiary hearing as moot.

2. Reconsideration of Our Decision Affirming BLM Decisions That Identified "Recoverable Coal Reserves" to Calculate Advance Royalties for the LMU

As detailed in AMCA)1 AMCA halted mining at the Aberdeen Mine after its parent, experienced a | disaster at its nearby Crandall Canyon Mine. It obtained approval for a temporary interruption in coal

Compare Draft Rejection at 2 with BLM decision dated Jan. 25, affirmed in AMCA, 187 IBLA at 69.

AMCA, 187 IBLA at 68-69. id. at 59-61.

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severance to evaluate whether production could safely resume, made major improvements to the Aberdeen, restarted and then quickly stopped mining in early 2008 due to safety concerns. Shortly thereafter Appellants objected to being charged royalties for coal lost due to safety issues on July 2008, requested an adjustment to BLM's recoverable reserve estimate in the R2P2 to account for coal no longer mineable for safety reasons on July 19, and again on December 13, Although BLM did not respond to these requests, it reduced recoverable reserve estimates to account for coal in relinquished leases when it approved Appellants' relinquishment of leases committed to the LMU. Meanwhile, AMCA made several requests to pay advance royalties "in lieu of continued operations," which BLM granted and then identified "recoverable coal reserves" for calculating advance royalties, consistent with the reductions in recoverable reserves it identified when it approved the relinquishments: | tons for the period March through February 2012, as identified at a lease relinquishment on March 27, 2012; and tons for the period March 2012 through February 2015, as identified after another lease relinquishment and modified by BLM decision dated August 29, 2014.18

Appellants appealed from BLM's decisions approving payment of advanced royalty, claiming they identified incorrect, out-of-date recoverable reserve estimates because they had not been revised to account for new information presented in Appellants' requests to modify the R2P2 in July and January Although BLM had yet to respond to Appellant's long pending July 2010 request to modify the R2P2,20 we affirmed the BLM decisions because their recoverable coal reserve estimates came from "approved R2P2 and lease relinquishments, consistent with 43 C.F.R. § 3482.2(a)(3)." 21

Id. at 62; see 43 C.F.R. § 3483.4(c) ("[Advance royalty] shall be paid in an amount equivalent to the production royalty that would be owed on the production of 1 percent of the recoverable coal reserves.").

See 187 IBLA at 64. See id. at 70-71 ("BLM has not responded to that [July

request, notwithstanding the clear language of 43 C.F.R. 3482.2: 'The authorized officer shall promptly approve or disapprove in writing any [proposed R2P2] modifications . . . or specify conditions under which they would be acceptable.' Since this Board does not supervise BLM, we will not remand for further action to comply with that rule.").

Id. at 70; see 43 C.F.R. § 3482.2(a)(3) coal reserves shall be those estimated . . . as of the date of approval of the resource recovery and protection plan.")

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Appellants moved to reconsider, claiming a new issue was injected when BLM returned their July 2010 request to modify their R2P2 on February 12, 2016, shortly after we decided AMCA, without taking any action or issuing a decision under 43 C.F.R. § 3482.2(c). 22 The Board requested further briefing by order dated June 17,

When BLM returned Appellants' July 2010 R2P2 request, it stated this "proposed modification has been superseded by additional modification to the existing R2P2" and that the affected lands and leases are "no longer in the Aberdeen LMU" or under Federal lease.24 Roger Bankert, the BLM Mineral Support Supervisor who oversees the coal management program in the Utah State Office and recommended the return of that R2P2 request, claims it is moot because, after BLM approved lease relinquishments on March 12, 2012, and August 20, 2013, it "no longer reflects the current status of the LMU." 2 5 An R2P2 is inherently forward-looking, must be followed by the operator, and contains all requirements for the including maps for "the area where mining is to be conducted," a description of "proposed mining operations," plus methods of mining and abandonment.26 The circumstances at the Mine significantly changed when lease relinquishments were approved by BLM and little purpose would be served by BLM reviewing a proposal to modify mining where, as here, Appellants now vigorously contend that the Aberdeen Mine is "mined out."

Appellants correctly point out that without a reduction in recoverable reserves to account for coal that was not mineable for safety reasons, their obligation to pay advance royalties will be based on overstated, outdated recoverable coal reserve estimates.27 But the salient facts for our deciding this issue are as they were when we decided AMCA. Recoverable reserves are defined by rule as the BLM estimate in an approved R2P2. Thus, unless and

Motion for Reconsideration at 8, 16-17. See Appellants' Memorandum on Order to Show Cause filed July 6,

BLM Declaration by Roger Bankert dated June 28, 2016; Appellants' Reply filed July 11, 2016.

BLM Letter to dated Feb. 12, Bankert Declaration at 5; see id. at 2-5. 43 C.F.R. § see 43 C.F.R. § 3480.0-5 (34) ("Resource recovery and

protection means a plan showing that the proposed operation meets the requirements of MLA for development, production, diligent development, continuous operations, MER, and the rules of this part for the

See Motion for Reconsideration at 16, 17; Reply at 19-21.

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until BLM revises its estimates, advance royalties must be calculated based on the last approved R2P2, even if its estimate is no longer valid and has been overtaken by events, as was and is the case here. As noted in AMCA,28 we do not supervise BLM and cannot order it to revise a recoverable reserve estimate to account for coal that could no longer be safely mined, as requested by Appellants in their July R2P2 request. We therefore conclude that BLM's return of Appellant's 2010 request does not demonstrate an error in our decision.

Conclusion

Based on our review of the record, the materials proffered on reconsideration, and the arguments of the parties, we conclude that Appellants have not shown extraordinary circumstances under 43 C.F.R. § 4.403(d)(4) and therefore deny their petition to reconsider our decision in AMCA.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,29 we deny reconsideration of the Board's decision in AMCA, 187 IBLA 57, deny Appellants' request for a remand and hearing as unnecessary, and deny the request for a stay pending the outcome of that hearing as moot.

I concur:

71 18. 43 C.F.R. § 4.1.

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