Ohio River Valley v. Green Valley Coal Co.

Dec 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1475. Green Valley Coal Company (Green Valley) appealed the award of attorney fees in a citizen suit brought under the Surface Mining Control and Reclamation Act (SMCRA or the Act). Initially, three environmental organizations, Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council (collectively, OVEC), sued the Director of the West Virginia Division of Environmental Protection (the state agency) to mandate changes in the way the agency enforces its regulatory program under SMCRA.

In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.

The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."

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Fishing Co AK vs. Gutierrez, Carlos

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5153. In April 2006, the Secretary of Commerce, Carlos Gutierrez (Secretary), via his delegee the National Marine Fisheries Service (Service), issued a final rule establishing a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fishing region [71 FR 17,362 4/6/06]. In issuing the rule, the Service exercised authority under the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.

Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.

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Center For Native Ecosystems v. Cables

Dec 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 06-1130. The Center for Native Ecosystems, the Biodiversity Conservation Alliance, and the Forest Guardians (collectively CNE) appeal the district court’s order denying a petition for review of the United States Forest Service’s authorization of livestock grazing in Medicine Bow National Forest. CNE first contends that the Forest Service violated § 7(a)(2) of the Endangered Species Act, because (1) its consultation with the United States Fish and Wildlife Service (FWS) after the designation of portions of the forest as critical habitat for the Preble’s meadow jumping mouse (Preble’s mouse) failed to consider how grazing in the mouse’s critical habitat would affect its recovery, and (2) it must reinitiate consultation with the FWS regarding the effects of grazing on the mouse itself because grazing has exceeded previously established limits. CNE also contends that the Forest Service has violated § 313(a) of the Clean Water Act because it has not complied with Wyoming water-quality requirements “in the same manner, and to the same extent as any nongovernmental entity,” 33 U.S.C. § 1323(a).

The Pole Mountain Cattlemen’s Association, the Wyoming Stock Growers Association, the Wyoming Farm Bureau Federation, and the Laramie County Farmers Union (collectively the Cattlemen’s Association), along with the Wyoming Association of Conservation Districts, intervened in the district-court proceeding as defendants in support of the Forest Service’s actions. The State of Wyoming, the Pacific Legal Foundation, and the National Association of Home Builders in conjunction with the American Forest and Paper Association have filed amicus briefs supporting various aspects of the Forest Service’s actions. The Appeals Court affirmed the district court’s decision. One of the justices issued a separate but concurring opinion.

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