556 F.3d 177 (4th Cir. 2009), 07-1355, Ohio Valley Environmental Coalition v. Aracoma Coal Co.

Docket Nº07-1355, 07-1479, 07-1480, 07-1964, 07-2112.
Citation556 F.3d 177
Party NameOHIO VALLEY ENVIRONMENTAL COALITION; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees, v. ARACOMA COAL COMPANY; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated, Intervenors/Defendants-Appellants, and Coal Mac, Incorporated, Movant, and Mingo Logan Coal Company, Intervenor/
Case DateFebruary 13, 2009
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 177

556 F.3d 177 (4th Cir. 2009)

OHIO VALLEY ENVIRONMENTAL COALITION; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,

and

Coal Mac, Incorporated, Movant,

v.

ARACOMA COAL COMPANY; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated, Intervenors/Defendants-Appellants,

and

Mingo Logan Coal Company, Intervenor/Defendant,

and

United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District; West Virginia Coal Association, Defendants.

National Mining Association; Kentucky Coal Association; Coal Operators and Associates, Inc.; Illinois Coal Association; Colorado Mining Association; Alaska Miners Association; Virginia Coal Association; Idaho Mining Association; Alabama Coal Association; Pennsylvania Coal Association; Ohio Coal Association; Indiana Coal Council, Inc.; Utility Water Act Group; West Virginia Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.

Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,

and

Coal Mac, Incorporated; Frasure Creek Mining, LLC, Movants,

v.

United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District, Defendants-Appellants,

and

West Virginia Coal Association, Defendant,

and

Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated; Mingo Logan Coal Company, Intervenors/Defendants.

National Mining Association; Kentucky Coal Association; Coal Operators and Associates, Inc.; Illinois Coal Association; Colorado Mining Association; Alaska Miners Association; Virginia Coal Association; Idaho Mining Association; Alabama Coal Association; Pennsylvania Coal Association; Ohio Coal Association; Indiana Coal Council, Inc.; Utility Water Act Group; West Virginia Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.

Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,

and

Coal Mac, Incorporated; Frasure Creek Mining, LLC, Movants,

v.

West Virginia Coal Association, Defendant-Appellant,

and

United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District, Defendants,

and

Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated; Mingo Logan Coal Company, Intervenors/Defendants.

Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,

v.

United States Army Corps of Engineers; Carl A. Strock, Commander and Chief of Engineers, U.S. Army Corps of Engineers; William Bulen, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; West Virginia Coal Association, Defendants,

and

Coal Mac, Incorporated; Mingo Logan Coal Company; Frasure Creek Mining, LLC; Jupiter Holdings LLC, Intervenors/Defendants,

and

Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated, Intervenors/Defendants-Appellants.

Ohio Valley Environmental Coalition; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees,

v.

United States Army Corps of Engineers; Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District, Defendants-Appellants,

and

West Virginia Coal Association, Defendant,

and

Aracoma Coal Company; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated; Mingo Logan Coal Company; Coal Mac, Incorporated; Frasure Creek Mining, LLC; Jupiter Holdings LLC, Intervenor/Defendant.

Alabama Coal Association; Alaska Miners Association; Coal Operators and Associates, Incorporated; Colorado Mining Association; Idaho Mining Association; Illinois Coal Association; Indiana Coal Council; Kentucky Coal Association; National Mining Association; Ohio Coal Association; Pennsylvania Coal Association; Utility Water Act Group; Virginia Coal Association; West Virginia Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.

Nos. 07-1355, 07-1479, 07-1480, 07-1964, 07-2112.

United States Court of Appeals, Fourth Circuit.

February 13, 2009

Argued: Sept. 23, 2008.

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ARGUED:

Robert G. McLusky, Jackson Kelly, P.L.L.C., Charleston, West Virginia; Michael Thomas Gray, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants.

Joseph Mark Lovett, Appalachian Center for the Economy & The Environment, Lewisburg, West Virginia, for Appellees.

ON BRIEF:

James R. Snyder, Blair M. Gardner, Jackson Kelly, P.L.L.C., Charleston, West Virginia; Michael R. Shebelskie, William H. Wright, Jr., Hunton & Williams, L.L.P., Richmond, Virginia, for Intervenors/Appellants Aracoma Coal Company, Elk Run Coal Company, Alex Energy, Incorporated, Independence Coal Company, Incorporated; James S. Crockett, Jr., Allyn G. Turner, James C. Lesnett, Jr., Spilman Thomas & Battle, P.L.L.C., Charleston, West Virginia, for Appellant West Virginia Coal Association. Ronald J. Tenpas, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants United States Army Corps of Engineers, Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers, Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District. James M. Hecker, Public Justice, Washington, D.C.; Stephen E. Roady, Jennifer C. Chavez, Earthjustice, Washington, D.C., for Appellees Ohio Valley Environmental Coalition, Coal River Mountain Watch, West Virginia Highlands Conservancy. Harold P. Quinn, Jr., Karen Bennett, National Mining Association, Washington, D.C.; Christopher T. Handman, Dominic F. Perella, Hogan & Hartson, L.L.P., Washington, D.C., for Alabama Coal Association, Alaska Miners Association, Coal Operators and Associates, Incorporated, Colorado Mining Association, Idaho Mining Association, Illinois Coal Association, Indiana Coal Council, Kentucky Coal Association, National Mining Association, Ohio Coal Association, Pennsylvania Coal Association, Virginia Coal Association, Amici Supporting Appellants. James N. Christman, Brooks M. Smith, Hunton & Williams, L.L.P., Richmond, Virginia; Kristy A.N. Bulleit, Hunton & Williams, L.L.P., Washington, D.C., for Utility Water Act Group, Amicus Supporting Appellants. William R. Valentino, Assistant Attorney General, West Virginia Attorney General's Office, Charleston, West Virginia; Thomas L. Clarke, Senior Counsel, West Virginia Department of Environmental Protection, Office of Legal Services, Charleston, West Virginia, for West Virginia Department of Commerce and West Virginia Department of Environmental Protection, Amici Supporting Appellants.

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Reversed, vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part.

GREGORY, Circuit Judge:

OPINION

This appeal concerns a challenge by Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as " OVEC" ) to the U.S. Army Corps of Engineers (" Corps" ) issuance of

Page 186

four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations. Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (" CWA" ), 33 U.S.C. § 1251 et seq. (2000), the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § 4321 et seq. (2000), and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq. (2000). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order.

Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were " waters of the United States" and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.

The Corps now appeals these two orders. For the reasons set forth below, we reverse and vacate the district court's opinion and order of March 23, 2007, and vacate the district court's injunction. We also reverse the district court's June 13, 2007, grant of declaratory relief and we remand for further proceedings consistent with this opinion.

I.

The mountaintop removal method of surface coal mining, pioneered in West Virginia,...

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10 practice notes
  • Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits
    • United States
    • Federal Register September 25, 2013
    • September 25, 2013
    ...theory, cause of action, or defense which could have been asserted in that action.' '' Ohio Valley Envtl. Coal. v. Arcoma Coal Co. (OVEC), 556 F.3d 177, 210 (4th Cir. 2009) (quoting 18 James Wm. Moore et al., Moore's Federal Practice Sec. 131.10(1)(a) (3d ed. 2008). For res judicata to bar ......
  • Stream Protection Rule
    • United States
    • Federal Register July 27, 2015
    • July 27, 2015
    ...of a challenge to individual permits under section 404 of the Clean Water Act.\100\ See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009) (``Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills falls......
  • Treading water while Congress ignores the nation's environment.
    • United States
    • Notre Dame Law Review Vol. 88 Nbr. 5, June 2013
    • June 1, 2013
    ...court decision that had invalidated mountaintop removal for violating the CWA and NEPA. See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), reh'g en banc denied, 567 F.3d 130 (4th Cir. 2009). (293) 33 U.S.C. [section] 1344(c) (2006); see Juliet Eilperin, Obama Ad......
  • Why should we care about an agency's special insight?
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • December 1, 2013
    ...v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)) (internal quotations omitted). (98) See Ohio Valley Envtl. Coal v Aracoma Coal, 556 F.3d 177, 201 (4th Cir. 2009) ("In matters involving complex predictions based on special expertise, 'a reviewing court must generally be at its most......
  • Request a trial to view additional results
1 firm's commentaries
  • Public Lands And Natural Resources Update
    • United States
    • Mondaq United States
    • April 21, 2009
    ..."the best technology available for minimizing adverse environmental impact." In Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), the Fourth overturned a lower court decision enjoining certain mountaintop mining operations in West Virginia. For CWA purpo......
6 books & journal articles
  • Super deference, the science obsession, and judicial review as translation of agency science.
    • United States
    • Michigan Law Review Vol. 109 Nbr. 5, March 2011
    • March 1, 2011
    ...mine safety standards for exposure to diesel particulate matter). (265.) See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (citing both State Farm and Baltimore Gas and upholding issuance of Clean Water Act permits); id. at 201, 205 (using Baltimore ......
  • Vetoing wetland permits under section 404(c) of the Clean Water Act: a history of inter-federal agency controversy and reform.
    • United States
    • UCLA Journal of Environmental Law & Policy Vol. 33 Nbr. 2, September - September 2015
    • September 22, 2015
    ...Cir. 1992); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir. 1992); Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 198 (4th Cir. 2009). Subjecting 404(c) decisions to substantial review would arguably require more of EPA than the Corps, at least in terms of......
  • Treading water while Congress ignores the nation's environment.
    • United States
    • Notre Dame Law Review Vol. 88 Nbr. 5, June 2013
    • June 1, 2013
    ...court decision that had invalidated mountaintop removal for violating the CWA and NEPA. See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), reh'g en banc denied, 567 F.3d 130 (4th Cir. 2009). (293) 33 U.S.C. [section] 1344(c) (2006); see Juliet Eilperin, Obama Ad......
  • Why should we care about an agency's special insight?
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • December 1, 2013
    ...v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)) (internal quotations omitted). (98) See Ohio Valley Envtl. Coal v Aracoma Coal, 556 F.3d 177, 201 (4th Cir. 2009) ("In matters involving complex predictions based on special expertise, 'a reviewing court must generally be at its most......
  • Request a trial to view additional results
3 provisions
  • Stream Protection Rule
    • United States
    • Federal Register July 27, 2015
    • July 27, 2015
    ...of a challenge to individual permits under section 404 of the Clean Water Act.\100\ See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009) (``Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills falls......
  • Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits
    • United States
    • Federal Register September 25, 2013
    • September 25, 2013
    ...theory, cause of action, or defense which could have been asserted in that action.' '' Ohio Valley Envtl. Coal. v. Arcoma Coal Co. (OVEC), 556 F.3d 177, 210 (4th Cir. 2009) (quoting 18 James Wm. Moore et al., Moore's Federal Practice Sec. 131.10(1)(a) (3d ed. 2008). For res judicata to bar ......
  • Revised Definition of “Waters of the United States”
    • United States
    • Army, Corps Of Engineers Department,Defense Department
    • Invalid date
    ...of the agencies' authority to determine the scope of ``waters of the United States,'' see Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 212 (4th Cir. 2009) (upholding the waste treatment system exclusion as a lawful exercise of the agencies' ``authority to determine which wate......

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