Jan 302015
 

Blackside dace

Opinion

A federal judge in Tennessee ruled Jan. 28 that the Zeb Mountain mining lawsuit against the Fish and Wildlife Service and Office of Surface Mining, Reclamation and Enforcement can move forward, even though mining at the site has ceased and the permit has expired (Defenders of Wildlife v. Jewell, 13-698-PLR-CCS, E.D. Tenn.).

U.S. District Judge Pamela Reeves dismissed four claims (see below) alleging broad violations of the ESA related to the effects of SMCRA implementation in Tennessee. But she allowed four claims related to the effects of the mining on the blackside dace and Cumberland darter to proceed.

The Surface Mining Control and Reclamation Act does not pre-empt the Endangered Species Act, Reeves said.

"[T]he plaintiffs have not asserted a claim under any provision of SMCRA. The plaintiffs brought this lawsuit under the Endangered Species Act’s citizen-suit provision and the Administrative Procedure Act. The defendants have presented no controlling authority to support their assertion that SMCRA’s judicial review provisions are exclusive and preempt or implicitly repeal the Endangered Species Act and Administrative Procedure Act’s judicial review provisions."

The first two counts of the complaint "challenge the mining permit issued for Zeb Mountain and further seek to compel consultation on that permit," Reeves noted. "According to the defendants, these claims are moot. National Coal, LLC, the permittee at Zeb Mountain, ceased mining under the permit in October 2012. The permit has since expired, and a consent decree has been entered in a separate case requiring the mine operator at Zeb Mountain to cease mining and thereafter refrain from surface mining in Tennessee altogether. Sierra Club v. National Coal, LLC, Case Nos.: 3:11-CV-515, 3:11-CV-516, and 3:11-CV-527. Accordingly, no permittee has a right to extract coal at Zeb Mountain. Finally, the defendants note, 'the mine has been mostly reclaimed and water quality is expected to improve going forward.' (R. 82, Page ID 592)."

But the plaintiff enviromental groups argued (see brief below), "OSM retains discretionary authority over this mine until reclamation is complete and the final bond has been released, neither of which has yet occurred. Moreover, there is ample evidence that streams receiving mining wastewater from Zeb Mountain continue to be adversely affected by high conductivity levels. This condition is likely to continue even though strip mining at Zeb Mountain has ended for now17 and reclamation is purportedly underway."

After a brief analysis in the opinion's penultimate paragraph, Reeves said the first four claims could move ahead.

"The defendants contend that a judgment in favor of the plaintiffs, vacating the Zeb Mountain permit and ordering the OSM to consult with the Fish and Wildlife Service would serve little purpose given that the mining at issue has permanently ceased. Naturally, the plaintiffs disagree. They note that the OSM retains jurisdiction over the Zeb Mountain mine until reclamation is complete, revegetation has been established for five years, and the final bond has been released. 30 U.S.C. §§ 1258, 1259(b) & 1265(b)(20)(A); 53 Fed Reg. 44,356 (Nov. 2, 1988). Until the final bond release, the OSM retains the duty and power to inspect operations at Zeb Mountain, and the OSM may require reasonable revisions to the permit, including the reclamation plan, or issue an enforcement order at any time. 30 C.F.R. §§ 842.11(b)(1) & (c)(2), 774.10(b), 774.11(b), and 774.13. Accordingly, upon consultation with the Fish and Wildlife Service, the OSM could impose measures revising the reclamation plan to reduce post-mining, high-conductivity wastewater discharges. The relief sought could, therefore, make a difference in the legal interests of the parties. Counts I and II are not moot."

More from the opinion:

In dismissing Counts V through VIII:

"Counts V through VIII do not assert actual, site-specific activities that are diminishing or threatening to diminish the plaintiffs’ members’ enjoyment of a particular area. Instead, they are broad, facial, policy-based challenges to the defendants’ general reliance on the 1996 Biological Opinion and ITS, the Dace Guidelines, and the absence of Cumberland darter Guidelines throughout the state of Tennessee."

On the legal authorities of SMCRA and the ESA:

"[W]hile SMCRA may channel and control the OSM’s authority to grant a mining license and provide an avenue for administrative review of such a decision, the Endangered Species Act independently obligates agencies to complete site-specific and species-specific consultations with the Fish and Wildlife Service before issuing mining permits."

From the amended complaint, filed July 31, 2013:

"Defendants have unlawfully ignored mounting evidence that high conductivity wastewater from surface coal mines harms two rare ESA-protected fish species, the threatened blackside dace and the endangered Cumberland darter. Two Tennessee coal mines permitted by Defendant U.S. Office of Surface Mining, Reclamation, and Enforcement discharge or will discharge wastewater to creeks occupied by one or both of these species. Defendants have failed to fulfill their obligations under Section 7 of the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. §§ 402.12 –.16, to consult on the effects of issuing permits for surface coal mines to ensure that the discharge of wastewater pursuant to these permits neither jeopardizes the continued existence of these listed species nor destroys or adversely modifies critical habitat."

Claims (from amended complaint)

Count 1

OSM has failed to initiate and complete consultation with the Service regarding the effects of its permitting the Zeb Mountain mine on blackside dace, Cumberland darter, and the Cumberland darter’s designated critical habitat. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.

OSM’s continued reliance on the 1996 Biological Opinion and ITS, which contains no site-specific analysis of the Zeb Mountain mine, no species-specific analysis of the impacts of surface coal mining on blackside dace or Cumberland darter and its designated critical habitat, and no incidental take statement specific to the Zeb Mountain mine’s impacts on the blackside dace or Cumberland darter, is arbitrary and capricious, an abuse of discretion, and not in accordance with law.

OSM has failed to insure that the SMCRA permit for the Zeb Mountain mine is not likely to jeopardize blackside dace and Cumberland darter or result in destruction or adverse modification of the Cumberland darter’s critical habitat. See 16 U.S.C. § 1536(a)(2).

Therefore, Defendants Jewell, Pizarchik, and OSM are in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), its implementing regulations, 50 C.F.R. Part 402, and the APA, 5 U.S.C. § 706, in connection with SMCRA 3154 permit for the Zeb Mountain surface coal mine. This Court has jurisdiction to adjudicate these claims and grant Plaintiffs’ requested relief to remedy the harms Plaintiffs have suffered and will continue to suffer from Defendants’ legal violations.

Count 2

OSM has unlawfully failed to reinitiate and complete consultation under the 1996 Biological Opinion and/or under any alleged informal consultation with respect to the SMCRA permit for the Zeb Mountain mine to address population declines and extirpations exceeding the “amount or extent” of the authorized take for blackside dace and Cumberland darter; new information indicating adverse effects for these species caused by conductivity above 240 μS/cm; the listing of the Cumberland darter in 2011; and designation of critical habitat for the Cumberland darter in 2012, in violation of 50 C.F.R. § 402.16.

FWS has unlawfully failed to request that OSM reinitiate and complete consultation under the 1996 Biological Opinion and/or under any alleged informal consultation for the SMCRA permit for the Zeb Mountain mine to address population declines and extirpations exceeding the “amount or extent” of the authorized take for blackside dace and Cumberland darter; new information indicating adverse effects for these species caused by conductivity above 240 μS/cm; the listing of the Cumberland darter in 2011; and designation of critical habitat for the Cumberland darter in 2012, in violation of 50 C.F.R. § 402.16.

Therefore, Defendants are in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), its implementing regulations, 50 C.F.R. § 402.16, and the APA, 5 U.S.C. § 706, in connection with the SMCRA permit for the Zeb Mountain surface coal mine. This Court has jurisdiction to adjudicate these claims and grant Plaintiffs’ requested relief to remedy the harms Plaintiffs have suffered and will continue to suffer from Defendants’ legal violations.

Count 3

OSM’s continued reliance on the 1996 Biological Opinion and ITS, which contains no site-specific analysis of the Davis Creek mine, no species-specific analysis of the impacts of surface coal mining on blackside dace, and no incidental take statement specific to the Davis Creek’s mine’s impacts on the blackside dace, is arbitrary and capricious, an abuse of discretion, and not in accordance with law.

OSM has failed to insure that the SMCRA permit for Davis Creek Mine Area 5 is not likely to jeopardize blackside dace. See 16 U.S.C. § 1536(a)(2).

Count 4

OSM has unlawfully failed to reinitiate and complete consultation under the 1996 Biological Opinion and/or under any alleged informal consultation with respect to the SMCRA permit for the Davis Creek Mine Area 5 to address blackside dace population declines and extirpations exceeding the “amount or extent” of the authorized take and/or new information indicating adverse effects on blackside dace caused by conductivity above 240 μS/cm, in violation of 50 C.F.R. § 402.16.

FWS has unlawfully failed to request that OSM reinitiate and complete consultation under the 1996 Biological Opinion and/or under any alleged informal consultation with respect to the SMCRA permit for the Davis Creek Mine Area 5 to address blackside dace population declines and extirpations exceeding the “amount or extent” of the authorized take and/or new information indicating adverse effects on blackside dace caused by conductivity above 240 μS/cm, in violation of 50 C.F.R. § 402.16.

Therefore, Defendants are in violation of section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), its implementing regulations, 50 C.F.R. § 402.16, and the APA, 5 U.S.C. § 706, in connection with the SMCRA permit for the Davis Creek Mine Area 5.

Opinion | Complaint (amended 7/31/2013) | Federal defendants' brief in support of motion to dismiss | Plaintiffs' brief opposing MTD

Stream buffer zone rule could go bye-bye

 Posted by on September 12, 2013
Sep 122013
 

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)

 

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