M.L. Johnson Family Properties, LLC v. Jewell
Filing
35
MEMORANDUM OPINION & ORDER: (1) Plas motion for a preliminary injunction and a temporary restraining order, R. 5 , is GRANTED IN PART AND DENIED IN PART. (2) Secretary SHALL IMMEDIATELY INSPECT Elkhorn's mining operation on plas p arcel, as required by 30 U.S.C. § 1271(a)(1). After Secretary completes inspection, she SHALL REPORT to Court whether she plans to take further action. (3) Plas motion for a preliminary injunction, ordering Elkhorn to cease mining plas p arcel during pendency of Secretary's inspection is GRANTED. Secretary can evaluate whether to order cessation after inspection. If pla believes she has illegally refused to order cessation, then it may move for a temporary restraining ord er or a new injunction. Elkhorn SHALL IMMEDIATELY CEASE surface mining operations on plas parcel until Secretary completes her inspection and decides whether to take further action. (4) Plaintiff need not post a bond in this matter. (5) Plas r equest for a temporary restraining order is DENIED AS MOOT. (6) Plas request that Court compel Secretary to issue a cessation order under 30 U.S.C. § 1270(a)(2) is DENIED WITHOUT PREJUDICE. Court will reconsider motion, if necessary, after Secretary completes her inspection. (7) This Order is immediately appealable. Signed by Judge Amul R. Thapar on 6/13/2014. (TDA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
M.L. JOHNSON FAMILY PROPERTIES,
LLC,
Plaintiff,
v.
SALLY JEWELL, Secretary of the
Interior,
Defendant,
and
PREMIER ELKHORN COAL
COMPANY,
Intervening Defendant.
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Civil No. 14-78-ART
MEMORANDUM OPINION &
ORDER
*** *** *** ***
Property rights matter.
So too do the efforts of coal companies:
employment to millions and provide affordable energy to consumers.
They offer
Sometimes, a
company’s interest in conducting mining operations will leave it at odds with the owner of
the surface estate. In such situations, should the law prefer the surface owner or the coal
company? The Constitution wisely leaves such questions of policy to the States and the
elected branches, not the Courts. And here, the States and the political branches have spoken
with one voice:
Coal companies must comply with certain minimum permitting
requirements before they may mine a surface owner’s estate. Because the coal company in
this case failed to comply with those minimum requirements, it must immediately cease
mining the plaintiff’s land.
BACKGROUND
M.L. Johnson Family Properties, LLC, is a collection of landowners (organized as a
limited liability company) who want Premier Elkhorn Coal Company to cease surface mining
operations on their property. To that end, they filed this suit against the Secretary of the
Interior, seeking an injunction ordering her to halt Elkhorn’s mining activities. Although
Elkhorn obtained a permit from the relevant Kentucky agency, the plaintiff claims that the
permit fails to comply with the minimum federal requirements governing surface mining.
The source of those requirements is the Surface Mining Control and Reclamation Act of
1977 (the Act), 30 U.S.C. § 1201 et seq.
The Act establishes a system of “cooperative federalism”:
It prescribes certain
minimum national requirements applicable to surface mining, but it allows States to assume
responsibility for enforcing them. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452
U.S. 264, 289 (1981). The Act invites States to apply to regulate surface mining within their
borders. 30 U.S.C. § 1253(a). To accept the invitation, a State must submit to the Secretary
a proposed regulatory program, demonstrating that the State is ready, willing, and able to
enforce the Act’s requirements. Id. A proposed State regulatory regime may be more
demanding than the Act, but its requirements must be at least as stringent as the Act’s—that
is, the Act sets a national floor governing surface mining, but no ceiling. See id. Once the
Secretary approves a State’s proposed regulatory regime, then the State “assume[s] exclusive
jurisdiction over the regulation of surface coal mining” on non-federal land. Id. The phrase
“exclusive jurisdiction” means precisely what it suggests: After the Secretary signs off on a
2
State’s program, federal law no longer directly governs surface mining in the State. Bragg v.
West Virginia Coal Ass’n, 248 F.3d 275, 295 (4th Cir. 2001) (“When a State’s program has
been approved by the Secretary of the Interior, we can look only to State law on matters
involving the enforcement of the minimum national standards.”); accord Pennsylvania
Federation of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 316 (3d Cir. 2002). The
Secretary approved Kentucky’s proposed regulatory program in 1982. 30 C.F.R. § 917.10.
That is not to say, however, that federal law is irrelevant to the conduct of surface
mining in Kentucky. The Act’s grant of exclusive jurisdiction carries with it a notable
caveat. Federal law charges the Secretary with ensuring that a State’s administration of its
approved program comports with the Act’s minimum requirements. 30 U.S.C. § 1253(a)
(providing for exclusive State jurisdiction “except as provided” in the Act’s enforcement
provision). If a State fails to comply with the Act’s requirements, then the Act may require
the Secretary to intervene. See 30 U.S.C. § 1271(a); Hess, 297 F.3d at 328 (“The Secretary
may step in to withdraw approval of the state’s ineffective program or a part thereof and to
enforce, in federal court, federal provisions and sanctions for violations of the minimum
standards set forth in [the Act].”).
Whether to enforce the Act is not left entirely to the Secretary’s discretion. Crucially,
the Act contains a “citizen suit” provision—a device by which citizens may force the
Secretary to spring into action. 30 U.S.C. § 1270(a)(2). Section 1270 allows a private party
to “compel compliance” with the Act by suing the Secretary to perform “any act or duty
under this chapter which is not discretionary.” Id. Section 1270 is a rather extraordinary
remedy: Not every day can an aggrieved citizen command the Secretary of the Interior to do
his bidding. Perhaps for that reason, § 1270 usually requires the party seeking to enlist the
3
Secretary to provide her with 60 days to fix the problem before he may initiate a suit. 30
U.S.C. § 1270(b)(2). The 60-day waiting period does not apply, however, when time is of
the essence: If the alleged violation either (1) poses “an imminent threat” to the plaintiff’s
health or safety, or (2) “would immediately affect a legal interest of the plaintiff,” then the
party may notify the Secretary of the problem and sue immediately. Id.
M.L. Johnson brought this suit pursuant to § 1270, alleging that Elkhorn’s permit
application did not contain certain information that the Act requires. See generally 30 U.S.C.
§ 1260(b) (enumerating information that a State must require from an applicant before it may
approve a permit). Section 1271 requires the Secretary to intervene whenever she has reason
to believe that a person is violating “any permit condition” the Act prescribes. 30 U.S.C.
§ 1271(a)(1).
Because the obligation to intervene is couched in mandatory terms, the
plaintiff may seek to compel the Secretary to do so via a suit under § 1270. And M.L.
Johnson wants that relief right away: It seeks a preliminary injunction compelling the
Secretary to inspect Elkhorn’s permit. The Secretary responded that the 60-day period had
not expired, and that Elkhorn’s permit application contained the necessary information.
To be eligible for a preliminary injunction, the plaintiff must first demonstrate “a
strong likelihood of success on the merits,” City of Pontiac Retired Emps. Ass’n v. Schimmel,
No. 12-2087, 2014 WL 1758913, at *2 (6th Cir. May 5, 2014) (en banc). For the reasons
explained below, the plaintiff has carried that burden. M.L. Johnson was not required to wait
60 days before filing this action, and Elkhorn’s permit application did not comply with the
Act’s minimum requirements. The Court will therefore grant the motion for a preliminary
injunction, order the Secretary to conduct an inspection, and halt Elkhorn’s mining operation
on the plaintiff’s land during the pendency of that inspection.
4
I.
Section 1270’s Sixty-Day Waiting Period Does Not Apply, Because the Violation
Will “immediately affect a legal interest of the plaintiff.”
It is undisputed that the plaintiff commenced this suit less than 60 days after giving
the Secretary notice of the violation. The plaintiff thus had no right to invoke § 1270 unless
an exception applied: The violation must have imminently endangered the plaintiff’s health
or safety, or it must have threatened to “immediately affect a legal interest of the plaintiff.”
30 U.S.C. § 1270(b)(2).
The latter exception applies here. Although neither party cites any authority defining
the term “legal interest,” the plaintiff definitely has the requisite stake in this litigation. The
plain meaning of “legal interest” is capacious, see Black’s Law Dictionary 828 (8th ed. 2004)
(explaining that “interest” refers to “rights, privileges, powers, and immunities,” especially
rights in property), and a competent speaker of legal English would say that one has a legal
interest in protecting his property from any sort of activity that threatens to dramatically
decrease its value. It is undisputed that Elkhorn’s surface mining requires the felling of trees
and the infliction of other substantial damage on the plaintiff’s estate. And there is no doubt
that the threat is immediate: Mining has proceeded as this litigation has progressed.
Federal Rule of Civil Procedure 24(a) provides an imperfect but apt analogy, and it
confirms the broad reach of the phrase “legal interest.” Rule 24(a) allows for intervention as
of right when the intervenor has “an interest” in the litigation that he may not be able to
vindicate absent intervention. The Sixth Circuit has interpreted the Rule to require that the
intervenor have “a substantial legal interest in the subject matter of the case.” Coalition to
Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007). That standard is
not terribly demanding. Although the inquiry is fact-specific, a “substantial legal interest”
5
may exist even where the party would not have had standing to initiate the action in the first
place. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit
has opted for a rather expansive notion of the interest sufficient to invoke intervention of
right.”). To have standing, a plaintiff must have suffered a “concrete,” “particularized,”
“actual” injury that is “fairly traceable to the challenged action of the defendant” and capable
of being redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envt’l
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). Nobody suggests that the plaintiff here
lacks the requirements of Article III standing, suggesting that its “legal interest” is
“substantial.”
Ultimately, there is no need to decide precisely what “legal interest” means in
§ 1270(b)(2). It suffices for present purposes to hold that, where a party faces the immediate
surface mining of his property, he faces a threat that could “immediately affect” his “legal
interest” in the property. The plaintiff therefore was not required to wait 60 days before
initiating this action.
II.
Elkhorn’s Permit Application Did Not Contain All The Information That The
Act Requires.
The Act prohibits regulators from approving applications for surface mining permits
unless the applicant provides certain information. See 30 U.S.C. § 1260(b). The condition at
issue here applies only to applicants who seek to mine a parcel with severed surface and
mineral estates. 30 U.S.C. § 1260(b)(6). An applicant seeking to mine such a parcel must
submit one of the following three pieces of information: (A) the written consent “of the
surface owner,” or (B) a conveyance that expressly authorizes surface mining; or (C) a
conveyance that is silent as to surface mining, in which case State law controls “the surface-
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subsurface legal relationship.” 30 U.S.C. § 1260(b)(6)(A)–(C). It is undisputed that the
parcel’s surface and mineral estates have been severed, so Kentucky’s regulatory authority
could approve Elkhorn’s permit application only if Elkhorn submitted the information
contemplated by subsection (A), (B), or (C). Alan Luttrell, the Kentucky regulator who
approved Elkhorn’s application, testified that he approved it under subsection (A)—that is,
that Elkhorn submitted “the written consent of the surface owner to the extraction of coal by
surface mining methods.” 30 U.S.C. § 1260(b)(6)(A).1
But did Elkhorn really submit the consent required by § 1260(b)(6)(A)?
That
depends on how one reads “of the surface owner.” The six individuals who are members of
the plaintiff in this case hold a majority of the parcel as tenants-in-common, and they never
consented to the surface mining of their land. Pike Letcher Land Company owns 25% of the
parcel as a tenant-in-common with the plaintiff, and it expressly consented to surface mining.
What result when the surface estate has multiple owners, some of whom consent and some of
whom do not? Does the consent of “a” surface owner satisfy § 1260(b)(6)(A)?
At first blush, the Act is silent on this score. It envisions only “the surface owner.”
Nevertheless, well-established canons of statutory interpretation all point to the same
conclusion: Subsection (A) requires the consent of all surface owners. The consent of “a”
surface owner does not suffice.
1
The relevant portions of the applicable state and federal regulations speak in precisely the same terms as the statute.
See 30 C.F.R. § 778.15(b)(1) (requiring “the written consent of the surface owner”); 405 Ky. Admin. Regs. 8:030
§ 4(2)(a) (requiring “the written consent of the surface owner.”). Although this opinion is cast in terms of the
federal statute, the Court interprets the federal and state regulations to carry the same meaning. After all, as an
analytical matter, the Kentucky regulation cannot be less demanding than the federal requirement. See 30 C.F.R.
§ 917.10 (approving Kentucky’s program because it complied with the Act). Thus, if Kentucky’s issuance of the
permit violated the minimum requirements of the Act, it also violated Kentucky’s regulatory analogue.
7
A. When A Term Appears Multiple Times In The Same Act, It Usually Means
The Same Thing In Both Places.
Although the term “surface owner” in § 1260 is undefined, that phrase carries a
particular meaning in a different section of the Act. Section 1304 defines the rights of
surface owners on federal lands. 30 U.S.C. § 1304(e). It provides that: “For the purpose of
this section the term ‘surface owner’ means the natural person or persons . . . who [have
various interests in the surface estate].” Id. (emphasis added). The definition applies by its
terms to § 1304 only, but it still provides important guidance for interpreting § 1260.
“[W]ords repeated in different parts of the same statute generally have the same meaning.”
Law v. Siegel, 134 S. Ct. 1188, 1195 (2014) (applying 11 U.S.C. § 503(b)’s definition of
“administrative expenses” to the same phrase in § 522(k)). If Congress intended to depart
from that canon in the Act, it left no trail of bread crumbs suggesting as much to the curious
reader. Section 1304’s definition of “surface owner” to include the plural thus suggests that
the same phrase in § 1260 also encompasses the plural where there are multiple owners—
meaning that an applicant in such a case must submit the written consent of “the surface
owners.”
B. The Singular Presumptively Includes The Plural.
The phrase “surface owner” presumptively includes the plural “surface owners.” The
Dictionary Act provides rules for interpreting “any Act of Congress, unless the context
indicates otherwise.” 1 U.S.C. § 1. The first of those rules is that “words importing the
singular include and apply to several persons, parties or things.” Id.; see also Central & S.
Motor Freight Tariff Ass’n, Inc. v. United States, 843 F.2d 886, 894 (6th Cir. 1988)
(rejecting an argument because it ignored “a basic principle of statutory interpretation—that
8
the singular includes the plural . . . .”). So, absent some statutory context suggesting that
Congress intended the singular to exclude the plural here, “the surface owner” should be read
to mean “the surface owners” in cases where there is more than one.
Although there is some such contextual evidence, it is too weak to carry the day.
Section 1257 requires an applicant to list “every legal owner of record of the property
(surface and mineral),” and “the names and addresses of the owners of record of all surface
and subsurface areas adjacent to any part of the permit area.” 30 U.S.C. § 1257(b)(1), (2).
So, the argument goes, Congress knew how to refer to plural owners when it wanted to.
Neither passage, however, is analogous to § 1260(b)(6)(A), which imagines a single surface
estate. Section 1257(b)(1) refers to the owners of both a mineral estate and a surface estate,
so its use of the plural may well be consistent with § 1260(b), as it simply envisions one
owner of the surface estate and a different owner of the mineral estate.
So too with
§ 1257(b)(2), which refers to the several “surface and subsurface areas” surrounding the
parcel that the applicant is applying to mine. Neither section uses the plural to refer to the
owners of a single mineral or surface estate. These passages therefore cannot overcome the
understanding prescribed by the Dictionary Act—particularly when that understanding is
confirmed by § 1304’s definition.
C. Congress Employed The Definite Article In Section 1260.
Congress’s use of the definite article (“the surface owner”) indicates that the consent
of “a” surface owner cannot suffice. See 30 U.S.C. § 1260(b)(6)(A). “Unlike ‘a’ or ‘an,’
that definite article suggests specificity.” Noel Canning v. N.L.R.B., 705 F.3d 490, 500 (D.C.
Cir. 2013). If Congress meant to require the consent of “a surface owner,” then it could
simply have said that. Indeed, doing so would have carried at least one additional perk:
9
Curious readers would not have had to guess whether the term “surface owner” imported the
plural, for the consent of one surface owner (whether he was the only one or not) would
always suffice. But Congress did not use that term, and its use of the definite article fits
smoothly even if “the surface owner” is read to mean “the surface owners.” Words have
meaning—even small ones like “the.” The Court has no authority to ignore the precise
phrasing Congress selected.
D. The Secretary’s Contrary Interpretation Is Implausible.
Despite the three signs pointing in the same direction, the Secretary contends that
§1260(b)(6)(A) actually requires only the amount of consent required under applicable State
law. Because Kentucky’s common law of property allows one tenant-in-common to consent
to surface mining on an entire parcel, the Secretary concludes that the consent of one tenantin-common also suffices to satisfy § 1260(b)(6)(A).
The Secretary’s argument is unpersuasive—when Congress meant to punt to State
law, it did so expressly. Indeed, it did so within the very same sentence in which it used the
phrase “the surface owner.”
Section 1260(b)(6)(C), provides that if the conveyance is silent
as to surface mining, then “the surface-subsurface legal relationship shall be determined in
accordance with State law . . . .” (Emphasis added). “Where Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (alteration omitted). That
presumption seems particularly apt where the relevant difference occurs within the same
breath. The canons discussed above and the implausibility of the Secretary’s view combine
to confirm that § 1260(b)(6)(A) requires the consent of all the surface owners when there is
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more than one. Therefore, § 1260(b) prohibited Kentucky from issuing Elkhorn its permit
based on the consent of the Pike Letcher Land Company only.2
III.
The Plaintiff Is Entitled To A Preliminary Injunction Ordering The Secretary
To Inspect Elkhorn’s Permit.
To review: The Secretary has a mandatory duty to intervene when she learns that a
person is mining in violation of one of the Act’s “permit condition[s].”
§ 1271(a)(1).
30 U.S.C.
Kentucky’s issuance of Elkhorn’s permit violated the Act’s minimum
requirements, because Elkhorn submitted the consent of one surface owner only, when
§ 1260(b)(6)(A) required it to submit the consent of all the surface owners. The plaintiff
sued immediately after notifying the Secretary of the problem, and the usual 60-day waiting
period does not bar this suit.
So what remedy does the Act prescribe in a situation like this? Usually, the first step
is for the Secretary to inform the State regulatory authority of the violation. 30 U.S.C.
§ 1271(a)(1). The Secretary must immediately order an inspection of the relevant mining
operation, however, if the plaintiff provides “adequate proof that an imminent danger of
significant environmental harm exists and that the State has failed to take appropriate
action.” Id. Kentucky has taken no action to cure the violation, because it shares the
Secretary’s reading of § 1260(b)(6)(A). And although a permitting violation might not be
thought to pose any risk of environmental harm, the Secretary’s regulations provide
2
At one point in this litigation, the Secretary suggested a sort of harmless error theory: That even if Kentucky
illegally issued the permit under its analogue to 30 U.S.C. § 1260(b)(6)(A), the permit is valid because it could have
been issued under the analogue to 30 U.S.C. § 1260(b)(6)(C). The Court invited the Secretary to brief this question,
and it failed to develop that argument, insisting instead on its main argument, that the consent of one surface owner
suffices. R. 24 at 3–4. In light of Luttrell’s clear testimony, this case is about a permit issued under the Kentucky
analogue to § 1260(b)(6)(A). And in light of the Secretary’s decision not to pursue its harmless error theory, the
Court will not venture a guess—which would closely resemble an advisory opinion—regarding whether this same
application could have been approved under the analogue to § 1260(b)(6)(C).
11
otherwise. “Surface coal mining operations conducted by any person without a valid surface
coal mining permit constitute a condition or practice which causes . . . significant imminent
environmental harm . . . .” 30 C.F.R. § 843.11(a)(2). Per the Secretary’s own rules, she must
therefore immediately order an inspection of Elkhorn’s mining operation, because it is
mining pursuant to an invalid permit.
Or at least a plain reading would suggest as much. The Secretary resists that view,
insisting that the permit is “valid” even if it fails to comply with the Act’s minimum
requirements. The Secretary’s view is not particularly nuanced: “Defendant suggests that
the reference to ‘valid permit’ in 30 C.F.R. § 843.11(a)(2) means essentially any permit in
existence.” R. 9 at 11–12. There is nothing wrong with staking out bold legal positions, but
the Secretary is writing checks that the regulation cannot cash. The regulation speaks in
terms of mining “without a valid” permit. (Emphasis added). The Secretary’s interpretation
reads “valid” right out of the statute. The word has to mean something, and its colloquial
meaning weighs heavily in favor of the plaintiff. See Black’s Law Dictionary 1586 (8th ed.
2004) (defining “valid” to mean “legally sufficient”). Elkhorn’s permit, as the Court has
explained, is not legally sufficient. It fails to comply with the Act’s minimum requirements.
The Secretary has therefore bound herself to conclude that Elkhorn’s mining operation poses
an imminent risk of environmental harm, see 30 C.F.R. § 843.11(a)(2), so she must
immediately order an inspection. See 30 U.S.C. § 1271(a)(1).
After the inspection, the Secretary will have to decide whether to order a cessation of
Elkhorn’s operation. See 30 U.S.C. § 1271(a)(2). The Court cannot order her to require
cessation at this point, because that determination must be made after the inspection. See id.
(requiring cessation “[w]hen, on the basis of any Federal inspection, the Secretary or his
12
authorized representative determines . . . .”) (emphasis added). The plaintiff is of course free
to return to this Court if it perceives another failure by the Secretary to comply with a
mandatory duty required by the Act.
In the interim, the Court will grant the plaintiff’s motion for a preliminary injunction,
staying Elkhorn’s mining operation on the plaintiff’s property. The Court considers four
factors when evaluating a motion for a preliminary injunction: (1) Whether the plaintiff has
demonstrated a strong likelihood of success on the merits; (2) whether the plaintiff faces an
irreparable injury absent the injunction; (3) whether issuance of the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by issuance of
the injunction. City of Pontiac Retired Emps. Ass’n v. Schimmel, No. 12-2087, 2014 WL
1758913, at *2 (6th Cir. May 5, 2014) (en banc).
As explained above, the plaintiff has demonstrated a strong likelihood of success on
the merits, and the plaintiff faces irreparable injury to its land absent the injunction. The
third and fourth factors are admittedly more difficult. No doubt, enjoining Elkhorn’s mining
carries serious costs: Many Elkhorn employees may be temporarily put out of work, and the
public at large will not be free to purchase the coal that will remain in the ground because of
the injunction. But the public has similarly weighty interests in ensuring that states and
mining companies comply with the minimum national requirements Congress has prescribed
for surface mining. Particularly so where, as here, the violation goes to a core purpose of the
Act: The protection of surface owners from the travails of surface mining. See 30 U.S.C.
§ 1202(b) (explaining that a purpose of the Act is to “assure that the rights of surface
landowners . . . are fully protected from [surface mining] operations.”). At the end of the
day, Congress is better positioned than this Court to weigh the public interest about matters
13
of national importance, and Congress has concluded that no permit should issue unless the
applicant includes certain information demonstrating its right to surface mine a landowner’s
property. Because Elkhorn did not include that information, the public interest is best served
by staying Elkhorn’s mining operations until the Secretary completes her inspection.
Accordingly, it is ORDERED that:
(1)
The plaintiff’s motion for a preliminary injunction and a temporary restraining
order, R. 5, is GRANTED IN PART AND DENIED IN PART.
(2)
The Secretary SHALL IMMEDIATELY INSPECT Elkhorn’s mining
operation on the plaintiff’s parcel, as required by 30 U.S.C. § 1271(a)(1).
After the Secretary completes the inspection, she SHALL REPORT to this
Court whether she plans to take further action.
(3)
The plaintiff’s motion for a preliminary injunction, ordering Elkhorn to cease
mining the plaintiff’s parcel during the pendency of the Secretary’s inspection
is GRANTED. The Secretary can evaluate in the first instance whether to
order cessation after completing her inspection.
If after the Secretary’s
inspection, the plaintiff believes she has illegally refused to order cessation,
then it may move for a temporary restraining order or a new injunction.
Elkhorn SHALL IMMEDIATELY CEASE surface mining operations on the
plaintiff’s parcel until the Secretary completes her inspection and decides
whether to take further action.
(4)
The plaintiff need not post a bond in this matter. Although Rule 65(c) speaks
in apparently mandatory terms, “the rule in our circuit has long been that the
district court possesses discretion over whether to require the posting of
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security.” Appalachian Regional Healthcare, Inc. v. Coventry Health & Life
Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013) (internal quotation omitted). In its
opening brief the plaintiff argued that no bond should be required. R. 5 at 16
n.8. The defendants evidently had no quarrel with that proposal: Neither
contested the point in their responses, and neither has separately requested that
the Court post a bond. See R. 8; R. 9. Accordingly, insofar as this issue has
been raised at all, the defendants have waived their right to contest the
plaintiff’s position. See Appalachian Regional Healthcare, Inc., 714 F.3d at
431 (“A court errs when it fails to expressly consider the question of requiring
a bond when the issue has been raised.”) (internal alterations, ellipsis, and
quotation marks omitted) (emphasis added).
(5)
The plaintiff’s request for a temporary restraining order is DENIED AS
MOOT.
(6)
The plaintiff’s request that the Court compel the Secretary to issue a cessation
order under 30 U.S.C. § 1270(a)(2) is DENIED WITHOUT PREJUDICE.
The Court will reconsider that motion, if necessary, after the Secretary
completes her inspection.
(7)
This Order is immediately appealable. 28 U.S.C. § 1292(a)(1).
This the 13th day of June, 2014.
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