National Parks Conservation Association v. Kempthorne ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL PARKS CONSERVATION
ASSOCIATION,
Plaintiff,
v. Civil Action 09-00115 (HHK)
KEN SALAZAR, Secretary of the United
States Department of the Interior, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The National Parks Conservation Association (“NPCA”) brings this suit against Ken
Salazar, Secretary of the Department of the Interior, Glenda Owens, Acting Director of the Office
of Surface Mining Reclamation and Enforcement (“OSM”), and Lisa Jackson, Administrator of
the Environmental Protection Agency (“EPA”), (collectively, the “Federal defendants”)
challenging the promulgation of OSM’s Final Rule for “Excess Spoil, Coal Mine Waste, and
Buffers for Perennial and Intermittent Streams,” 73 Fed. Reg. 75,814 (Dec. 12, 2008) (“SBZ
Rule”), and the EPA’s written determination concurring in the promulgation of the Rule. NPCA
alleges that the Federal defendants violated the Administrative Procedures Act, 5 U.S.C. § 551 et
seq. (“APA”), the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1276, subsection
7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2) (“ESA”), and sections 101 and
303 of the Clean Water Act, 33 U.S.C. §§ 1251, 1313. The National Mining Association
(“NMA”) has been permitted intervene as a defendant.
Before the Court are the motions of the Federal defendants to remand and vacate the SBZ
Rule [#10] and to dismiss this action for lack of jurisdiction [#12] on the grounds that there no
longer exists a case and controversy. Upon consideration of the motions, the oppositions thereto,
and the record in this case, the Court concludes that the motions should be denied.
I. BACKGROUND
On December 12, 2008, after publishing notice and soliciting public comment on its
proposed amendment to regulations regarding stream buffer zones, OSM published the SBZ
Rule, which regulates excess mining spoil, disposal of mine waste, stream buffer zones, and
stream-channel diversions. NPCA filed this suit in January 2009 alleging that the Federal
defendants violated several statutes in promulgating and concurring in the promulgation of the
SBZ Rule. In April 2009, Secretary Salazar “determined that the OSM erred in failing to initiate
consultation with the U.S. Fish and Wildlife Service under the ESA to evaluate possible effects
of the SBZ Rule on threatened and endangered species.” Defs.’ Mot. for Remand & Vacatur at 2.
Accordingly, the Federal defendants move to remand and vacate the SBZ Rule and to dismiss this
action. NMA opposes the Federal defendants’ motions and the NPCA supports the motions.
II. ANALYSIS
The Federal defendants argue that this Court should employ its equitable authority to
remand, as well as vacate, the SBZ Rule because Secretary Salazar has confessed serious legal
deficiencies in the rulemaking and vacatur will not result in disruptive consequences. The
Federal defendants further argue that there no longer exists a case or controversy between the
parties, and that judicial efficiency counsels in favor of the Federal defendants’ position that this
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case should be dismissed, because dismissal would afford plaintiff the same relief that it would
receive if it won on the merits.
In opposition, the NMA argues that the Federal defendants should not be permitted to
bypass the APA’s procedures for repealing an agency rule. The NMA disputes the Federal
defendants’ assertion that there was any legal deficiency in the rule making leading up to the
promulgation of the SBZ Rule and the Federal defendants’ contention that vacating the rule
would not cause disruption. The NMA’s position has merit.
The cases cited by the Federal defendants provide scant support for their position that
remand and vacatur is appropriate here because the circumstances addressed in those cases are
materially different from those extant here. For example in Allied-Signal, Inc. v. U.S. Nuclear
Regulatory Commission, 988 F.2d 146, 150-51 (D.C. Cir. 1993), and United Mine Workers v.
Dole, 870 F.2d 662, 673-74 (D.C. Cir. 1989), a court remanded and vacated an agency action
only after reaching the merits of the challenge. Here, the Federal defendants seek a remand and
vacatur of the SBZ Rule without a determination on the merits that the SBZ Rule is legally
deficient. Other cases cited by the Federal defendants relate to an agency’s motion for voluntary
remand upon a finding of significant new evidence. See Ethyl Corp. v. Browner, 989 F.2d 522,
524 (D.C. Cir. 1993) (holding that where there was significant new evidence, a remand was
appropriate). Here, the Federal defendants point to no new evidence and ask the Court not only
to remand the case, but to vacate the SBZ Rule.
Building Industries Legal Defense Foundation v. Norton, 231 F. Supp. 2d 100 (D.D.C.
2002) and National Association of Home Builders v. Evans, No. 00-cv-02799, 2002 WL 1205743(D.D.C. 2002) also addressed materially different circumstances. In National Association of
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Home Builders, the court approved a consent decree that vacated and remanded an agency rule
over the objections of amici curiae where the Secretary of Commerce confessed legal error in
light of an adverse Tenth Circuit decision. 2002 WL 1205743, at *3. There, all parties to the
case agreed that the rule should be remanded and vacated. Id. Here, NMA, a full party to the
case as an intervenor, see District of Columbia v. Merit Sys. Protection Bd., 762 F.2d 129, 132
(D.C. Cir. 1985), opposes the Federal defendants’ motion for vacatur. Further, while not
reaching the merits itself, the court in National Association of Home Builders reviewed the Tenth
Circuit decision on the merits, which had caused the Secretary of Commerce to confess error, and
found the other court’s opinion to be “well-reasoned” and founded in “persuasive rationale.”
2002 WL 1205743, at *3. In Building Industry Legal Defense Foundation, the case which NMA
concedes to be most factually analogous to this case, the court granted a motion for remand and
vacatur over the objections of intervenor environmental groups where the Secretary of the
Interior decided that a rule required reconsideration in light of the same Tenth Circuit decision.
231 F. Supp. 2d at 108. There, however, all parties agreed that the rule should be remanded
because legal error existed in the rulemaking process and the only dispute concerned how the
agency should be instructed upon remand and whether vacatur was also appropriate. Id. at 103.
The Court finds no precedent to support the proposition that it should remand and vacate
the SBZ Rule under the circumstances presented here. Moreover, the NMA has the better
argument that granting the Federal defendants’ motion would wrongfully permit the Federal
defendants to bypass established statutory procedures for repealing an agency rule. The APA
requires government agencies to follow certain procedures, including providing for public notice
and comment, before enacting or amending a rule. 5 U.S.C. § 553(b), (c). An agency must follow
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the same procedure in order to repeal a rule. 5 U.S.C. § 551(5) (“‘[R]ule making’ means agency
process for formulating, amending, or repealing a rule.”(emphasis added)); see Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its
course by repealing a rule is obligated to supply a reasoned analysis for the change.”); Consumer
Energy Council of Am. v. FERC, 673 F.2d 425, 446 (D.C. Cir. 1982), aff’d, 463 U.S. 1216 (1983)
(“[T]he APA expressly contemplates that notice and an opportunity to comment will be provided
prior to agency decisions to repeal a rule.”). While notice and comment procedure is not required
where a court vacates a rule after making a finding on the merits, see, e.g., Cement Kiln Recycling
Coal v. EPA, 255 F.3d 855, 872 (D.C. Cir. 2001), granting vacatur here would allow the Federal
defendants to do what they cannot do under the APA, repeal a rule without public notice and
comment, without judicial consideration of the merits.
III. CONCLUSION
For the reason set forth above and because this case quite clearly presents a continuing
“case and controversy,” it is this 12 th day of August 2009, hereby
ORDERED that defendants’ motions for voluntary remand and vacatur [#10] is
DENIED; and it is further
ORDERED that defendants’ motion to dismiss [#12] is DENIED.
Henry H. Kennedy, Jr.
United States District Judge
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