Southern Appalachian Mountain Stewards et al v. Jewell

MOTION for Summary Judgment

W.D. Va.May 1, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA BIG STONE GAP DIVISION ) SOUTHERN APPALACHIAN MOUNTAIN ) STEWARDS and SIERRA CLUB, ) ) Plaintiffs, ) ) v. ) Civil Action No. 2:16cv0026 ) RYAN ZINKE, Secretary of the Interior, ) ) Defendant. ) ) Plaintiffs’ Motion for Summary Judgment Pursuant to this Court’s February 28, 2017 Scheduling Order (Doc. 9), Plaintiffs Southern Appalachian Mountain Stewards and Sierra Club (collectively, “SAMS”) submit this motion for summary judgment. This action challenges a decision of the Secretary of the Interior (the “Secretary”) that strikes at the heart of citizens’ statutory right to participate in oversight of surface coal mining and reclamation operations under the Surface Mining Control and Reclamation Act (“SMCRA”). 30 U.S.C §§ 1201-1328. If upheld, the Secretary’s decision would permit regulatory authorities (1) to systematically deny citizens their legal right to be present at mine site inspections where they have provided regulators with a reason to believe violations are occurring, (2) to rely on data collected in violation of the law, and (3) to rule against citizens even where all record evidence demonstrates unlawful permit violations. The Secretary’s decision is arbitrary, capricious, contrary to law, without substantial evidence, and an abuse of discretion. As stated in the accompanying memorandum, the Secretary’s decision is arbitrary and inconsistent with the law for three main reasons. First, there is no evidence in the record even suggesting that Red River Coal Company could lawfully discharge the toxic pollutant selenium Case 2:16-cv-00026-JPJ-PMS Document 12 Filed 05/01/17 Page 1 of 4 Pageid#: 285 2 from its operations at issue. All record evidence demonstrates the opposite. The Secretary, however, ruled against SAMS by questioning how the Secretary could know or learn of such information, even though the Secretary's regulation requires the agency to accept citizens’ allegations as true. Second, the Secretary erroneously concluded that SAMS waived its right to be notified of inspections that result from information provided by SAMS. The Secretary relied on factors which the applicable regulation does not authorize the government to consider -- namely, whether a citizen has or has not pursued administrative review of a State regulatory authority's denial of the citizen’s inspection request. The Secretary relied on the incorrect standard and failed to address the government’s notification obligations. See Lois Armstrong, 130 IBLA 228 (1994). Finally, the Secretary failed to address the chronic water quality standard for selenium in its analysis denying SAMS’ appeal. The standard was cited from the outset, in SAMS’ initial request, and was even cited in the Secretary’s recitation of pertinent facts and law. However, the Secretary failed to mention the chronic standard at all in its holding. The record demonstrates that neither the Federal nor the State agency tested for a four-day average, the legal standard for chronic selenium concentration. Accordingly, Plaintiffs move for summary judgment and request reversal and remand with direction that the Secretary order a Federal inspection of Red River Coal Company’s operations. Respectfully submitted, /s/ Isak Howell Isak Howell 119 Norfolk Ave. SW #330 Roanoke, VA 24011 540.998.7744 isak@howell-lawoffice.com Case 2:16-cv-00026-JPJ-PMS Document 12 Filed 05/01/17 Page 2 of 4 Pageid#: 286 3 /s/ Walton D. Morris, Jr. Walton D. Morris, Jr. Morris Law Office, P.C. 1901 Pheasant Lane Charlottesville, Virginia 22901 Case 2:16-cv-00026-JPJ-PMS Document 12 Filed 05/01/17 Page 3 of 4 Pageid#: 287 4 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA BIG STONE GAP DIVISION ) SOUTHERN APPALACHIAN MOUNTAIN ) STEWARDS and SIERRA CLUB, ) ) Plaintiffs, ) ) v. ) Civil Action No. 2:16cv0026 ) RYAN ZINKE, Secretary of the Interior, ) ) Defendant. ) ) Certificate of Service I hereby certify that on May 1, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following counsel of record: Sara Bugbee Winn Assistant United States Attorney Virginia State Bar No. 35924 P. O. Box 709 Roanoke, Virginia 24011 Telephone: (540) 857-2250 Facsimile: (540) 857-2283 E-mail: sara.winn@usdoj.gov Leta Hollon Attorney-Advisor U.S. Department of the Interior Office of the Solicitor 800 S. Gay St., Suite 800 Knoxville, TN 37929 Telephone: (865) 545-4920 E-mail: leta.hollon@sol.doi.gov Counsel for Defendant /s/ Isak Howell Isak Howell (Va. Bar No. 75011) Case 2:16-cv-00026-JPJ-PMS Document 12 Filed 05/01/17 Page 4 of 4 Pageid#: 288