National Parks Conservation Association v. Kempthorne et al

Memorandum in opposition to re MOTION to Dismiss for Lack of Jurisdiction

D.D.C.May 19, 2009

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL PARKS CONSERVATION ASSOCIATION, Plaintiff, v. KEN SALAZAR, et al., Defendants, and NATIONAL MINING ASSOCIATION, Intervenor-Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:09-cv-00115-HHK OPPOSITION OF INTERVENOR-DEFENDANT NATIONAL MINING ASSOCIATION TO DEFENDANTS’ MOTION TO DISMISS Intervenor-Defendant National Mining Association (“NMA”) opposes Defendants’ Motion to Dismiss (Doc. No. 12) because it rests on a pending motion, which NMA opposes, to vacate the challenged rule (“Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams,” 73 Fed. Reg. 75,814 (Dec. 12, 2008) (“SBZ Rule”)). Defendants acknowledge that their Motion to Dismiss is based on arguments made in their Motion for Voluntary Remand and Vacatur of the SBZ Rule, filed on April 27, 2009 (Doc. No. 10). NMA filed an opposition to that Motion for Voluntary Remand and Vacatur on May 11, 2009 (Doc. No. 13). NMA does not oppose the unconditional dismissal of this action, which NMA believes has no merit. See NMA Answer (Doc. No. 4-3). However, the Defendants’ motion to dismiss is Case 1:09-cv-00115-BJR Document 14 Filed 05/19/09 Page 1 of 2 2 not unconditional. Rather, it is conditioned on a Court order granting Defendants’ motion to vacate the SBZ Rule. The order would effectively give Plaintiff the relief it seeks, as Defendants acknowledge. See Def. Mot. for Voluntary Remand and Vacatur at 5. NMA opposes dismissal as long as it is conditioned on vacating the SBZ Rule. NMA hereby incorporates the arguments in its opposition as to why vacatur of the SBZ Rule is inappropriate, including that it would violate both administrative law and separation of powers principles. Dismissal of the amended complaint in this action under the conditions attached by Defendants is not appropriate, and in any event is premature until the Court resolves the pending motion to remand and vacate. Therefore, Defendants’ motion to dismiss should be denied. Respectfully submitted, /s/ J. Michael Klise J. Michael Klise, No. 412420 jmklise@crowell.com Kirsten L. Nathanson, No. 463992 knathanson@crowell.com Jessica A. Hall, No. 977283 jhall@crowell.com CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 (202) 624-2500 Attorneys for Intervenor-Defendant National Mining Association Dated: May 19, 2009 Case 1:09-cv-00115-BJR Document 14 Filed 05/19/09 Page 2 of 2