Kentuckians for Commonwealth Inc. v. Riverburgh
| Decision Date | 29 January 2003 |
| Docket Number | No. 02-1737.,No. 02-1736.,02-1736.,02-1737. |
| Citation | 317 F.3d 425 |
| Parties | KENTUCKIANS FOR the COMMONWEALTH, INCORPORATED, Plaintiff-Appellee, v. John RIVENBURGH, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Ginger Mullins, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants-Appellants, and Pocahontas Development Corporation; Horizon NR, LLC; Kentucky Coal Association, Intervenors/Defendants. Interstate Mining Compact Commission; National Mining Association; Alabama Coal Association; Coal Operators and Associates, Incorporated; Indiana Coal Council; Ohio Coal Association; Pennsylvania Coal Association; Virginia Coal Association; West Virginia Coal Association; State of Virginia, Amici Curiae. Kentuckians for the Commonwealth, Incorporated, Plaintiff-Appellee, v. John Rivenburgh, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Ginger Mullins, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants. Interstate Mining Compact Commission; National Mining Association; Alabama Coal Association; Coal Operators and Associates, Incorporated; Indiana Coal Council; Ohio Coal Association; Pennsylvania Coal Association; Virginia Coal Association; West Virginia Coal Association; State of Virginia, Amici Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: John Thompson Stahr, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Robert Gale McLusky, Jackson & Kelly, P.L.L.C., Charleston, West Virginia, for Appellants. James Millard Hecker, Trial Lawyers for Public Justice, Washington, D.C., for Appellee. ON BRIEF: Thomas L. Sansonetti, Assistant Attorney General, Ellen Durkee, Russell Young, Steve Rusak, Mark Nitczynski, Scott Williams, United States Department of Justice, Washington, D.C.; Lance D. Wood, Russell Petit, U.S. Army Corps of Engineers, Washington, D.C.; Steven M. Neugeboren, Office of General, Environmental Protection Agency, Washington, D.C.; Thomas A. Bovard, Office of the Solicitor, Department of the Interior, Washington, D.C., for Federal Appellants. Blair M. Gardner, Jackson & Kelly, P.L.L.C., Charleston, West Virginia; Michael R. Shebelski, Stephen M. Nickelsburg, Hunton & Williams, Richmond, Virginia; Timothy J. Hagerty, Amy D. Cubbage, Frost, Brown, Todd, L.L.C., Louisville, Kentucky; Richard J. Bolen, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, West Virginia; Robert D. Pollitt, Richard L. Lewis, Steptoe & Johnson, Charleston, West Virginia, for Appellants Pocahontas, et al. Joseph M. Lovett, Appalachian Center for the Economy and the Environment, Lewisburg, West Virginia; Joe F. Childers, Lexington, Kentucky, for Appellee. Christopher B. Power, Dinsmore & Shohl, L.L.P., Charleston, West Virginia; Gregory E. Conrad, Interstate Mining Compact Commission, Herndon, Virginia, for Amicus Curiae Commission. Harold P. Quinn, Jr., National Mining Association, Washington, D.C., for Amici Curiae Association, et al. Jerry W. Kilgore, Attorney General of Virginia, William H. Hurd, State Solicitor, Judith Williams Jagdmann, Deputy Attorney General, Maureen R. Matsen, Deputy State Solicitor, William E. Thro, Deputy State Solicitor, Roger L. Chaffe, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Amicus Curiae Commonwealth.
Before NIEMEYER, LUTTIG, and HAMILTON, Circuit Judges.
Reversed, vacated, and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge HAMILTON joined. Judge LUTTIG wrote an opinion concurring in part and dissenting in part.
This appeal presents the issue of whether the U.S. Army Corps of Engineers has authority under the Clean Water Act and under its now-superseded 1977 regulation implementing the Act to issue permits for valley fills in connection with mountaintop coal mining. It does not present the question of whether mountaintop coal mining is useful, desirable, or wise.
Kentuckians for the Commonwealth, Inc., a nonprofit corporation formed to promote "social justice and quality of life for all Kentuckians," commenced this action for declaratory and injunctive relief to declare illegal the Corps' interpretation of the Clean Water Act and to require the Corps to revoke the permit that it issued to Martin County Coal Corporation under § 404 of the Act, authorizing Martin Coal to place excess overburden from one of its coal mining projects into 27 valleys in Martin County, Kentucky.
On cross-motions for summary judgment, the district court "found and concluded" that "fill material" as used in § 404 referred only to "material deposited for some beneficial primary purpose," not for waste disposal, and therefore that the Corps' "approval of waste disposal as fill material under § 404 [of the Clean Water Act] [was] ultra vires" and "beyond the authority" of the Corps. Because Martin Coal's assignee of the permit, Beech Fork Processing, Inc., proposed "to re-engineer [the] existing mine plan to place no spoil in waters of the United States without a constructive primary purpose," the court found there to be no "imminent probable irreparable injury" to Kentuckians for the Commonwealth. The court determined that in the absence of injury, Kentuckians' application for injunctive relief with regard to the Martin Coal authorization "must be denied." But on the basis of its conclusion that the Corps acts ultra vires whenever it issues permits for valley fills without a beneficial primary purpose, the district court entered a purely prospective permanent injunction against the Corps. This injunction prohibits the Corps from "issuing any further § 404 permits within the Huntington District [covering portions of five states] that have no primary purpose or use but the disposal of waste," in particular, any permit to create valley fills with the spoil of mountaintop coal mining for the sole purpose of waste disposal.
Because we conclude that the Corps' practice of issuing § 404 permits, including the permit to Martin Coal, to create valley fills with the spoil of mountaintop coal mining is not ultra vires under the Clean Water Act and that the injunction issued by the district court was overbroad, we reverse the court's declaratory judgment; we vacate its injunction and the memorandums and orders of May 8 and June 17, 2002; and we remand for further proceedings not inconsistent with this opinion.
Martin County Coal Corporation ("Martin Coal"), having obtained a mining permit from the Commonwealth of Kentucky in November 1999 to undertake a surface mining project in Martin County, Kentucky, applied to the U.S. Army Corps of Engineers ("the Corps") for authorization under § 404 of the Clean Water Act and under the Corps' Nationwide Permit 21 ("NWP 21") "to construct hollow fills and sediment ponds in waters of the United States" in connection with the proposed mining project. On June 20, 2000, the Corps "authorized" Martin Coal's project, permitting it to place mining-operations "spoil" from "excess overburden" in 27 valleys, filling about 6.3 miles of streams. "Overburden" is the soil and rock that overlies a coal seam, and overburden that is excavated and removed is "spoil." In connection with surface mining operations in mountains where the mine operator must return the mountains to their approximate original contour, the spoil is placed temporarily in valleys while the coal is removed from the seam and then returned to the mining location. However, because spoil takes up more space than did the original overburden, all surface mining creates excess spoil that must be placed somewhere. The permit in this case authorized Martin Coal to create 27 valley fills with the excess spoil, which in turn would bury some 6.3 miles of streams at the heads of the valleys.
The Corps' exercise of authority under NWP 21 to permit the creation of valley fills in connection with mining operations was consistent with its past practices and with the understanding of the Corps and the EPA as to how the Clean Water Act divides responsibility for its administration. While court cases have, over the years, evinced confusion over that division based on the agencies' differing approaches to defining "fill material" in their regulations, see, e.g., Resource Investments, Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162 (9th Cir.1998); Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir.1983), the Corps and the EPA have in fact exercised their authority consistently in interpreting the Clean Water Act to give the Corps authority to issue permits for the creation of valley fills in connection with surface coal mining activities.
At the time that the Corps issued its authorization to Martin Coal in this case, it had already published notice, together with the EPA, of their intent to amend their regulations to resolve ambiguities in both agencies' regulatory definitions of "fill material" and to clarify the division of authority between the two agencies. As the Corps and the EPA stated in the public notice of the intended amendments, issued on April 20, 2000:
With regard to proposed discharges of coal mining overburden, we believe that the placement of such material into waters of the U.S. has the effect of fill and therefore, should be regulated under CWA section 404. This approach is consistent with existing practice and the existing EPA definition of the term "fill material." In Appalachia in particular, such discharges typically result...
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