Defenders of Wildlife, the Sierra Club, Statewide Organizing for Community eMpowerment and Tennessee Clean Water Network, along with the U.S. Interior Dept., on Jan. 14 filed a consent decree in federal court that resolves a May 2015 lawsuit over permitting of a coal mine in Tennessee.
The U.S. District Court for the Eastern District of Tennessee has been handling this case, which was filed against various officials, including Joseph Pizarchik in his official capacity as Director of Interior’s Office of Surface Mining, Reclamation, and Enforcement (OSMRE), and Dan Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service (FWS).
Plaintiffs wanted the court to direct OSMRE and FWS to complete project-specific consultation under the Endangered Species Act (ESA) regarding the effects of OSMRE’s issuance of surface mining permit for the Sterling & Strays Surface Mine #1 (Permit No. 3296, formerly Permit No. 3264) on the blackside dace. OSMRE issues mine permits in Tennessee because the state has no mine permit program of its own.
The decree noted that in September 2015, OSMRE voluntarily sent a written request to FWS requesting completion of formal, project-specific ESA consultation on the effects of the Sterling & Strays Surface Mine #1 on ESA-listed species, including the blackside dace/ In September 2015, FWS provided a written response to OSMRE’s request, agreeing to complete formal, project-specific consultation. The parties that same month stayed this court proceeding while all of this was going on.
On Sept. 24, 2015, OSMRE sent a written notification to the operator of the Sterling & Strays Surface Mine #1, informing it that OSMRE and FWS would be completing formal project-specific consultation on the mining permit and that actions should not be taken on the permit that could result in adverse impacts to ESA-listed species or critical habitat in the interim.
Said the Jan. 14 decree: “OSMRE and FWS agree to complete formal, project-specific ESA Section 7(a)(2) consultation on the effects of the Sterling & Strays Surface Mine #1 (Permit No. 3296, formerly Permit No. 3264) on the blackside dace. To wit: (a) OSMRE agrees to submit a biological assessment to FWS pursuant to 50 C.F.R. § 402.12(f). (b) FWS agrees to review OSMRE’s biological assessment promptly after receiving it and provide feedback to OSMRE regarding whether it contains adequate information to complete formal, project-specific ESA Section 7(a)(2) consultation. (c) OSMRE agrees to provide Plaintiffs’ trial counsel with a copy of the biological assessment promptly after it is finalized. (d) After receiving a consultation package that it deems complete, FWS agrees to provide OSMRE with its project–specific biological opinion and, if appropriate, an incidental take statement. FWS agrees to provide a copy of the biological opinion and any accompanying incidental take statement to Plaintiffs’ trial counsel promptly after they are finalized.
“It is difficult to predict with certainty the amount of time that will be required to complete the consultation referenced in Paragraph 1. OSMRE and FWS will attempt, in good faith, to complete the consultation by May 1, 2016. The possibility exists, however, that circumstances could delay completion of consultation. If OSMRE and FWS are unable to complete the consultation by May 1, 2016, the agencies will provide Plaintiffs with monthly status reports, beginning on May 1, 2016 and continuing until the consultation has been completed.
“Within 30 days of receiving the biological opinion and any incidental take statement FWS issues pursuant to Paragraph 1, OSMRE will make a written determination as to whether any permitting action(s) regarding Permit No. 3296 (formerly Permit No. 3264) is warranted. OSMRE agrees to provide a copy of its determination to Plaintiffs’ trial counsel promptly after it is finalized.
“Upon approval of this Consent Decree by the Court, Plaintiffs’ Complaint is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The Parties agree that the dismissal pursuant to Paragraph 4 shall not impair any right Plaintiffs may have under existing law to challenge the biological opinion and any incidental take statement FWS produces pursuant to Paragraph 1, and/or OSMRE’s decisions following issuance of the biological opinion and any incidental take statement. The Parties further agree that any such challenge can only be brought as a new lawsuit and not as part of the above-captioned case. Defendants reserve all defenses to any such lawsuit.”