Oh Valley Environmental Coalition v. Aracoma Coal

556 F.3d 177

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.

No. 07-1355.

No. 07-1479.

No. 07-1480,

No. 07-1964.

No. 07-2112.

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2008.

Decided: February 13, 2009.

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 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, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as "spoil." Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock...