NATIONAL PARKS CONSERVATION ASSOCIATION v. KEMPTHORNE et al

Filing 18

ORDER denying 10 Defendants' Motion for Voluntary Remand and Vacatur; denying 12 Federal Defendants' Motion to Dismiss. Signed by Judge Henry H. Kennedy, Jr. on August 12, 2009. (lchhk1)

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLUMBIA

NATIONAL PARKS CONSERVATION A SSO C IA T IO N , Plaintiff, v. KEN SALAZAR, Secretary of the United S ta te s Department of the Interior, et al., Defendants. C iv il Action 09-00115 (HHK)

M E M O R A N D U M OPINION AND ORDER T h e National Parks Conservation Association ("NPCA") brings this suit against Ken S a l a z a r, Secretary of the Department of the Interior, Glenda Owens, Acting Director of the Office o f Surface Mining Reclamation and Enforcement ("OSM"), and Lisa Jackson, Administrator of th e Environmental Protection Agency ("EPA"), (collectively, the "Federal defendants") c h a lle n gin g the promulgation of OSM's Final Rule for "Excess Spoil, Coal Mine Waste, and B u ffe rs for Perennial and Intermittent Streams," 73 Fed. Reg. 75,814 (Dec. 12, 2008) ("SBZ R u le " ), and the EPA's written determination concurring in the promulgation of the Rule. NPCA a lle ge s that the Federal defendants violated the Administrative Procedures Act, 5 U.S.C. § 551 et s e q . ("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 3 0 3 of the Clean Water Act, 33 U.S.C. §§ 1251, 1313. The National Mining Association ( " N M A " ) has been permitted intervene as a defendant.

B e fo re the Court are the motions of the Federal defendants to remand and vacate the SBZ R u l e [#10] and to dismiss this action for lack of jurisdiction [#12] on the grounds that there no lo n ge r exists a case and controversy. Upon consideration of the motions, the oppositions thereto, a n d the record in this case, the Court concludes that the motions should be denied. I . BACKGROUND O n December 12, 2008, after publishing notice and soliciting public comment on its p ro p o se d amendment to regulations regarding stream buffer zones, OSM published the SBZ R u l e , which regulates excess mining spoil, disposal of mine waste, stream buffer zones, and s tre a m -c h a n n e l diversions. NPCA filed this suit in January 2009 alleging that the Federal d e fe n d an ts violated several statutes in promulgating and concurring in the promulgation of the S B Z Rule. In April 2009, Secretary Salazar "determined that the OSM erred in failing to initiate c o n s u l ta t i o n with the U.S. Fish and Wildlife Service under the ESA to evaluate possible effects o f 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 a c tio n . NMA opposes the Federal defendants' motions and the NPCA supports the motions. I I . ANALYSIS T h e Federal defendants argue that this Court should employ its equitable authority to re m a n d , as well as vacate, the SBZ Rule because Secretary Salazar has confessed serious legal d e fic ie n c ie s in the rulemaking and vacatur will not result in disruptive consequences. The F e d e ra l defendants further argue that there no longer exists a case or controversy between the p a r t ie s , and that judicial efficiency counsels in favor of the Federal defendants' position that this

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c a s e should be dismissed, because dismissal would afford plaintiff the same relief that it would re c e iv e 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 d e fe n d an ts ' assertion that there was any legal deficiency in the rule making leading up to the p r o m u l ga t i o n of the SBZ Rule and the Federal defendants' contention that vacating the rule w o u l d not cause disruption. The NMA's position has merit. T h e cases cited by the Federal defendants provide scant support for their position that r e m a n d and vacatur is appropriate here because the circumstances addressed in those cases are m a te ria lly different from those extant here. For example in Allied-Signal, Inc. v. U.S. Nuclear R e g u la to r y Commission, 988 F.2d 146, 150-51 (D.C. Cir. 1993), and United Mine Workers v. D o l e , 870 F.2d 662, 673-74 (D.C. Cir. 1989), a court remanded and vacated an agency action o n ly after reaching the merits of the challenge. Here, the Federal defendants seek a remand and v a c a t u r of the SBZ Rule without a determination on the merits that the SBZ Rule is legally d e fi c i e n t . Other cases cited by the Federal defendants relate to an agency's motion for voluntary re m a n d upon a finding of significant new evidence. See Ethyl Corp. v. Browner, 989 F.2d 522, 5 2 4 (D.C. Cir. 1993) (holding that where there was significant new evidence, a remand was a p p r o p r ia t e ) . 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. B u ild in g Industries Legal Defense Foundation v. Norton, 231 F. Supp. 2d 100 (D.D.C. 2 0 0 2 ) 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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H o m e Builders, the court approved a consent decree that vacated and remanded an agency rule o v e r the objections of amici curiae where the Secretary of Commerce confessed legal error in ligh t of an adverse Tenth Circuit decision. 2002 WL 1205743, at *3. There, all parties to the c a s e agreed that the rule should be remanded and vacated. Id. Here, NMA, a full party to the c a s e 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 re a c h in g the merits itself, the court in National Association of Home Builders reviewed the Tenth C i rc u it decision on the merits, which had caused the Secretary of Commerce to confess error, and fo u n d 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 c o n c e d e s to be most factually analogous to this case, the court granted a motion for remand and v a c a tu r over the objections of intervenor environmental groups where the Secretary of the In te rio r 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 b e c a u s e legal error existed in the rulemaking process and the only dispute concerned how the a gen c y 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 th e SBZ Rule under the circumstances presented here. Moreover, the NMA has the better a rgu m e n t that granting the Federal defendants' motion would wrongfully permit the Federal d e fe n d an ts to bypass established statutory procedures for repealing an agency rule. The APA re q u ire s government agencies to follow certain procedures, including providing for public notice a n d comment, before enacting or amending a rule. 5 U.S.C. § 553(b), (c). An agency must follow

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th e same procedure in order to repeal a rule. 5 U.S.C. § 551(5) ("`[R]ule making' means agency p r o c e s s for formulating, amending, or repealing a rule."(emphasis added)); see Motor Vehicle M fr s . Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) ("[A]n agency changing its c o u r s e by repealing a rule is obligated to supply a reasoned analysis for the change."); Consumer E n er g y Council of Am. v. FERC, 673 F.2d 425, 446 (D.C. Cir. 1982), aff'd, 463 U.S. 1216 (1983) (" [T ]h e APA expressly contemplates that notice and an opportunity to comment will be provided p r io r to agency decisions to repeal a rule."). While notice and comment procedure is not required w h e re a court vacates a rule after making a finding on the merits, see, e.g., Cement Kiln Recycling C o a l v. EPA, 255 F.3d 855, 872 (D.C. Cir. 2001), granting vacatur here would allow the Federal d e fe n d an ts to do what they cannot do under the APA, repeal a rule without public notice and c o m m e n t , without judicial consideration of the merits. I I I . CONCLUSION F o r the reason set forth above and because this case quite clearly presents a continuing " c a s e and controversy," it is this 12 th day of August 2009, hereby O R D E R E D that defendants' motions for voluntary remand and vacatur [#10] is D E N I E D ; and it is further O R D E R E D that defendants' motion to dismiss [#12] is DENIED.

H e n r y H. Kennedy, Jr. U n ite d States District Judge

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