Bragg v. Robertson

Decision Date17 June 1999
Docket NumberNo. CivA 2:98-0636.,CivA 2:98-0636.
Citation54 F.Supp.2d 653
CourtU.S. District Court — Southern District of West Virginia
PartiesPatricia BRAGG, et al., Plaintiffs, v. Dana ROBERTSON, Colonel, District Engineer, United States Army Corps of Engineers, Huntington Division, et al., Defendants.

Joseph M. Lovett, Mountain State Justice, Charleston, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, for Patricia Bragg, James W. Weekley, Sibby R. Weekley, plaintiffs.

Patrick C. McGinley, Morgantown, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, Suzanne M. Weise, Morgantown, WV, for The West Virginia Highlands Conservancy, Harry M. Hatfield, Carlos Gore, Linda Gore, Cheryl Price, Jerry Methena, plaintiffs.

Michael L. Keller, Assistant U.S. Attorney, Rebecca A. Betts, United States Attorney, Charleston, WV, Lois J. Schiffer, Asst. Atty. Gen., Steven E. Rusak, U.S. Department of Justice, Environment & Natural Resources Div., Environmental Defense Section, Washington, DC, Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Div., General Litigation Section, Washington, DC, for Dana Robertson, Joe N. Ballard, Michael D. Gheen, defendants.

Thomas L. Clarke, William E. Adams, Jr., Craig B. Giffin, West Virginia Division of Environmental Protection, Office of Legal Services, Charleston, WV, Russell M. Hunter, West Virginia Division of Environmental Protection, Office of Mining & Reclamation, Nitro, WV, Benjamin L. Bailey, Brian A. Glasser, Bailey & Glasser LLP, Charleston, WV, for Michael Miano, defendant.

Roger A. Wolfe, Robert G. McLusky, James R. Snyder, Jackson & Kelly, Charleston, WV, for Hobet Mining, Inc., Catenary Coal Co., Mingo-Logan Coal Co., intervenor-defendants.

W. Warren Upton, M. Shane Harvey, Terry R. Sammons, Jackson & Kelly, Charleston, WV, for The West Virginia Mining and Reclamation Association, West Virginia Coal Ass'n, intervenor-defendants.

W. Henry Lawrence, IV, Robert D. Pollitt, Richard L. Lewis, Richard N. Farmer, Steptoe & Johnson, Charleston, WV, for Western Pocahontas Properties Limited Partnership, National Council of Coal Lessors, intervenor-defendants.

Grant Crandall, James M. Haviland, George P. Surmaitis, Crandall, Pyles, Haviland & Turner, Charleston, WV, for International Union, United Mine Workers of America, intervenor-defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are (1) Plaintiffs' motion to dismiss all claims against the Federal Defendants1 with prejudice, pursuant to Rule 41(a)(2), Federal Rules of Civil Procedure, in Counts 11, 12 and 13 of the Amended Complaint; (2) Plaintiffs' revised motion to dismiss their claims against the Federal Defendants, superseding and supplementing Plaintiffs' earlier motion;2 (3) Plaintiffs' motion for leave to file a Second Amended Complaint; and (4) Hobet's motion to modify or clarify the scope of the Preliminary Injunction Order of March 3, 1999.

Plaintiffs and Federal Defendants3 have filed joint memoranda in support of a proposed Settlement Agreement, which underlies the motions to dismiss. The Associations4 have filed a memorandum opposing the dismissal, arguing the Settlement Agreement is flawed. Defendant Miano has filed a "Memorandum of Comment on the proposed Settlement Agreement."

The matters are ripe for review.

I. BACKGROUND
A. Factual Background

On December 23, 1998 Plaintiffs, Federal Defendants and Miano executed a Settlement Agreement that purports to resolve all claims against Federal Defendants for their alleged past failures to carry out statutory duties under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1344 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. The Settlement Agreement specifically excepted and allowed Plaintiffs to challenge the Spruce Fork mining permit process by filing an amended complaint. Similarly, Plaintiffs may challenge any future action5 by the Army Corps of Engineers ("Corps") authorizing valley fills in waters of the United States under CWA section 404.6

The Settlement Agreement has two primary thrusts — the long-term approach and the interim approach. First, the Environmental Protection Agency ("EPA"), the Corps, the Office of Surface Mining ("OSM"), and the Fish and Wildlife Service ("FWS"),7 as well as the West Virginia Department of Environmental Protection ("WVDEP"), agreed to

enter into an agreement to prepare an Environmental Impact Statement ("EIS") on a proposal to consider developing agency policies, guidance, and coordinated agency decision-making processes to minimize, to the maximum extent practicable, the adverse environmental effects to waters of the United States and to fish and wildlife resources affected by mountaintop mining operations, and to environmental resources that could be affected by the size and location of excess spoil disposal sites in valley fills. The parties intend that the EIS will be completed no later than 24 months after the Effective Date of this Settlement Agreement.

Settlement Agreement at 3. As a part of this, the Federal Agencies agreed to allow Plaintiffs "reasonable opportunities" to meet and "inform the development of the scoping document for the EIS consistent with the provisions of NEPA." Id. Also, the Federal Agencies promised to attempt retaining Plaintiffs' expert John Morgan, a mining engineer, and Bruce Wallace, a biologist, or persons similarly qualified, who are mutually acceptable to the parties, as consultants "to assist the agencies in preparing the EIS." Id. at 4. Plaintiffs may also nominate, and the Federal Agencies will attempt to retain, a third consultant mutually acceptable to the parties. Id.

Second, the Settlement Agreement provided an interim approach.

Prior to the completion of the EIS process and issuance of any record(s) of decision, any application for mountaintop mining operations in the State of West Virginia that would result in more than minimal adverse effects in waters of the United States will require an individual Corps permit under CWA section 404 for all overburden and other fill material (hereafter "fill") in waters of the United States.

Id. at 4-5. Any application for West Virginia mountaintop mining operations8 "that proposes to discharge fill in waters of the United States draining a watershed of 250 acres or more shall be considered to have more than minimal adverse effects in waters of the United States and require an individual CWA section 404 permit." Id. at 5. The Corps and EPA will determine the number of watersheds to be affected by the proposed discharge to inform the Corps' determination of whether the cumulative adverse impact of a particular mining operation is minimal. Id.

Similarly, if the Corps determines a discharge into waters draining a watershed of less than 250 acres would cause more than minimal adverse environmental effects, the Corps will also require the applicant to seek an individual 404 permit. Id. Also, if the Corps determines a discharge "may affect an endangered or threatened species, the Corps will consult with the FWS." Id.

Furthermore, the Agreement called for "an inter-agency coordination process ... to ensure compliance with all applicable federal and state laws and guidance, improve the permit process, and minimize any adverse environmental effects associated with excess spoil created by mountaintop mining operations in West Virginia." Id. at 6. The goal of this process "is coordinated permit decisions that minimize adverse environmental effects." Id. A Memorandum of Understanding ("MOU"), entered into by the EPA, the Corps,9 OSM, FWS and WVDEP, will govern the process and apply "to all such pending and future permits ... until this MOU is amended or rescinded." Id. at 7.

The proposed inter-agency coordination process commences when a company or organization files a "permit application for surface coal mining and reclamation operation that would result in a discharge into waters of the United States requiring a CWA permit." Id. at 6. When such an application is submitted, WVDEP will give notice of the application to the agencies who signed the MOU. If an individual 404 permit will be required, the signatory agencies will begin "a process of consultation and coordinated evaluation of the proposed individual permits." Id. The process will conclude in the issuance or denial of the Corps' CWA section 404 permit, WVDEP's CWA section 401 certification, WVDEP's CWA section 402 permit ("NPDES permit"), and WVDEP's permit to engage in surface mining and reclamation operations.

Moreover, the Corps agreed to give Plaintiffs actual notice of all such applications for individual 404 permits, along with a copy of the application, free of charge, and a reasonable opportunity to comment on each application.

If disagreements arise over the interpretation or performance of the Settlement Agreement, the dissatisfied party will give written notice of the dispute and request negotiations. Id. at 11. If, after meeting to resolve the dispute, the parties cannot reach an agreement within 60 days, "then Plaintiffs' sole remedy is to refile the litigation. The Federal Defendants do not waive or limit any defense relating to such litigation. The parties agree that contempt of court is not an available remedy under this Settlement Agreement."10 Id.

On January 7, 1999 the Court held a status conference exploring the scope and effect of Plaintiffs' motion to dismiss and the underlying Settlement Agreement. Pursuant to the Court's January 8, 1999 Order, the parties submitted briefs supporting or opposing Plaintiffs' motion.11

B. Procedural Posture

Plaintiffs first moved to dismiss Counts 11, 12 and 13 against Federal Defendants. Shortly thereafter, Plaintiffs filed a revised motion to dismiss, stating it superseded the previous motion, which sought to dismiss Count 12 entirely and Counts 11 and 13 only to the...

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