Jul 102014

U.S. District Judge Barbara Jacobs Rothstein will not reopen a case against the Interior Department over its 2008 stream buffer zone rule (Coal River Mountain Watch v. Jewell, 08-2212 BJR, D.D.C., 7/9/14).

In February, Rothstein found in a separate case that the Office of Surface Mining should have consulted under Section 7 of the ESA before promulgating the 2008 rule (National Parks Conservation Association v. Jewell, 09-115 BJR, D.D.C). She vacated the rule and did not rule on other claims brought by NPCA. She also dismissed the Coal River Mountain Watch action as moot.

Coal River and nine other environmental plaintiffs claimed, however, that they were "still entitled to a decision from the court as to whether, in addition to the [ESA], OSM’s promulgation of the 2008 Rule violated the SMCRA, the APA, and the NEPA," Rothstein said in her July 9 order.

"The Coal River Plaintiffs have not met their burden of showing extraordinary circumstances, such as an intervening change of controlling law or the availability of new evidence, which would warrant granting their motion. Rather than point to extraordinary circumstances, the Coal River Plaintiffs instead ask this court to reconsider arguments that were previously made and rejected, arguing that this court committed clear legal error in deciding that their claims are moot."

But the judge said the plaintiffs' claims are indeed moot, and any opinion she might issue on whether the 2008 rule violated the APA, CWA or NEPA "would necessarily be advisory, something a federal district court is prohibited from doing."