Judge in D.C. indicates desire to set aside reg for failure to consult
A 2008 rule designed to protect streams from the impact of coal mining will probably be set aside because the Office of Surface Mining did not consult with the Fish and Wildlife Service on the regulation’s impact on listed species.
That certainly appeared to be the inclination of U.S. District Judge Barbara J. Rothstein, who held a status conference on legal challenges to the Stream Buffer Zone rule today (Thursday, Sept. 12) in her courtroom in Washington, D.C. (National Parks Conservation Association and Coal River Watch v. Jewell, 09-115 BJR, D.D.C.).
Nothing of import has happened in the case for about three years, Rothstein noted, which has had the effect of leaving the 2008 rule in place, despite numerous flaws.
The judge said that as she was reading through the briefs prior to the hearing, “it crossed my mind that it was time for some rulings in the case.”
Later, near the end of the approximately one-hour status conference, she said the case was “an example of what happens” when a case is stayed for a long time: “It doesn’t get better, it just gets worse.”
The government has asked Rothstein to vacate the 2008 rule and leave the 1983 rule in its place while OSM goes through another public comment period in an attempt to refashion an acceptable rule. In addition to the failure to consult, OSM recently conceded it had misplaced thousands of (admittedly, identical) public comments.
Invalidation would be acceptable to NPCA but not, it appears, to another group of plaintiffs led by Coal River Mountain Watch, which wants Rothstein to decide all the issues in the case, not just the ESA claims (Coal River Mtn. Watch v. Jewell, 08-2122). Those plaintiffs’ attorney said the rule was harming people today.
“We would submit you have to consider all the deficiencies in the rule,” he said.
The National Mining Association and its allies want the judge to keep the 2008 rule in place. Their attorney, Kirsten Nathanson of Crowell & Moring, argued that Rothstein should defer to an earlier ruling by District Judge Henry Kennedy, who had declined to vacate the rule.
But Rothstein wasn’t fond of the “vacatur“ terminology, preferring instead to speak of “setting aside” an “invalid” rule. Longtime Justice Department attorney Mark Brown said there was no dispute among the parties that OSM hadn’t consulted under Section 7 of the ESA.
Here’s the “minute order” posted in the case docket today:
MINUTE ORDER: The parties having appeared for a status conference before Judge Barbara Jacobs Rothstein on September 12, 2013 at 10:00 am, it is HEREBY ORDERED that in the interest of expediting the issues so that they coincide with the companion case, National Parks Conservation Association v. Jewell, Case No. 9-115, the scheduling order [Dkt. Nos. 41 and 42] is modified accordingly: (1) all motions for summary judgment (including cross motions) will be filed on or before October 15, 2013; (2) all responses will be filed on or before November 15, 2013; and (3) all replies will be filed on or before December 1, 2013. Signed by Judge Barbara Jacobs Rothstein on 9/12/13. (Reed, Heather) (Entered: 09/12/2013)
- OSM Announces Opportunity to Comment on Options for Revisions to Stream Buffer Zone and Related Rules (11/30/09; news release)
- Immediate stream protection measures (11/18/09) (“OSM is initiating a rulemaking process to modify the 2008 stream buffer zone rule to be more protective of streams. We will implement the measures described below to provide increased protection for streams until that rule is finalized.”)
- NPCA article on impact of SBZ rule (Winter 2009)
- Salazar seeks to vacate rule (NPCA release, 4/27/09)