On February 20, 2014, a federal court in Washington, D.C. invalidated the 2008 Surface Mining Control and Reclamation Act (“SMCRA”) stream protection (or buffer zone) rule, which had the effect of reinstating the 1983 rule. See earlier article, “Court Sets Aside 2008 “Stream Protection Rule”: 1983 ‘Buffer Zone Rule’ – What’s Next for OSM?” Now, the plaintiffs want the Court to declare that the 1983 rule prohibits valley fills and stream crossings.
The 1983 rule prohibits mining within 100 feet of intermittent and perennial streams absent certain findings. Although historically not interpreted by the Office of Surface Mining (“OSM”) or state regulatory agencies as prohibiting fills, a federal court in West Virginia ruled in 1999 that the 1983 version of the rule prohibited valley fills. See Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D. W.Va. 1999). Although the Bragg decision was later vacated on jurisdictional grounds and has been rejected by the West Virginia Surface Mine Board, anti-mining groups have continued to treat it as the holy grail of SMCRA rulings.
In part to settle any lingering confusion over the scope of the 1983 rule, the Bush administration issued the 2008 rule to clarify that it did not prohibit fills or stream crossings. At the end of the Bush administration, a series of anti-mining groups challenged the 2008 rule in D.C., arguing that it violated SMCRA by allowing mining activities to occur in or to pass through streams. They also argued that OSM violated the Endangered Species Act (“ESA”) by failing to consult the United States Fish & Wildlife Service (“USF&WS”) and had wrongly relied on a 1996 “Biological Opinion” by the USF&WS.
The Obama administration initially tried to run from the 2008 Bush-era rule. In the first month of litigation it advised the Court that the OSM had failed to consult with the USF&WS. It then asked the Court to vacate the 2008 rule and remand it to OSM without further litigation.
The National Mining Association successfully intervened to prevent a complete “flop” by the Obama administration. As a result of that intervention, Judge Reggie Walton of the D.C. District Court ruled that OSM could either litigate the case or engage in new rulemaking to alter the 2008 rule, but that it could not use the plaintiffs’ request for preliminary relief in the case to effectuate the plaintiffs’ desired request to vacate the 2008 rule.
OSM then settled the case by agreeing to propose a new stream protection rule by a specified date. If it failed to do so, then plaintiffs were free to file a motion to reopen the case. OSM failed to meet its deadline for proposing a new rule after leaked portions of its environmental review under the National Environmental Policy Act (“NEPA”) revealed that its preferred option would lead to widespread job losses in the Eastern coalfields. Plaintiffs then successfully reopened the litigation. Significantly, a new judge from the West Coast, temporarily assigned to help reduce a backlog in the D.C. District, took over the case.
In February, based largely on OSM’s own insistence that it had violated the ESA’s obligation to consult with the USF&WS, the Court ruled that OSM had violated the ESA. The Court vacated the 2008 rule, thereby re-imposing the 1983 rule. The Court did not, however, rule on the plaintiffs’ SMCRA and NEPA claims, dismissing them as moot. This leaves OSM with two options: 1) issue a new rule; or 2) continue implementing the 1983 rule. In its briefs, OSM suggested that it might simply continue applying the 1983 rule, but reinterpret the rule in a way that limits—or perhaps prohibits— stream disturbance.
Now, the plaintiffs are asking the Court to reconsider their SMCRA and NEPA claims. They argue their claims are not moot because OSM might repeat its allegedly illegal conduct under those statutes in a new rulemaking. What plaintiffs are really doing, however, is trying to obtain a declaration that the 1983 buffer zone rule prohibits valley fills and stream crossings or “mine-throughs.”
Plaintiffs argue that the 1983 rule on its face prohibits substantial stream disturbance and that OSM made two errors when it determined that its 2008 rule did not prohibit fills and mine-throughs. First, by assuming that the 1983 rule did not prohibit stream disturbances, OSM used the wrong “baseline condition” to evaluate the impacts of the 2008 rule. Second, that OSM’s 2008 rule did not contain “reasoned decisionmaking” explaining how the 1983 rule allowed stream impacts in the first place. Thus, the plaintiffs ask the Court to consider their NEPA and SMCRA based claims, both of which invite the Court to declare that the 1983 rule prohibits fills and mine-throughs.
The concern for the mining industry is that the Obama administration will not oppose the motion and will instead consider using it as a vehicle for agreeing with the plaintiffs’ position.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author, see here.