WildEarth negotiating deal with feds over lawsuit against four coal mines

WildEarth Guardians, in conjunction with the U..S. Department of the Interior and its Office of Surface Mining, on Jan. 29 asked a federal judge for a stay of a September 2015 lawsuit over coal mine permitting so the two sides can work out a potential settlement.

The stay motion was filed at the U.S. District Court for the District of Colorado. Said the motion: “The stay would remain in effect until April 1, 2016 to allow the Parties, as well as prospective intervenors, to pursue settlement negotiations.”

WildEarth Guardians has petitioned for review of agency actions in which the plaintiff seeks declaratory and injunctive relief regarding OSM’s: 2013 approval of the Antelope mine plan in Wyoming; 2014 approval of the El Segundo mine plan in New Mexico; 2015 approval of the Bowie No. 2 mine plan in Colorado; and 2015 approval of the Black Thunder mine plan in Wyoming. Antelope is a Cloud Peak Energy surface mine, the Black Thunder surface mine belongs to Arch Coal, the El Segundo surface mine belongs to Peabody Energy with a pending deal to sell it to Bowie Resource Partners, and the Bowie No. 2 deep mine belongs to Bowie Resource Partners.

The parties said they need until April 1 to conduct these settlement discussions and to negotiate the terms of a settlement agreement. If these efforts are successful, Interior and OSM would need additional time to obtain the necessary approval of the authorized Department of Justice official. In the event that settlement negotiations do not result in resolution of this case, the Interior/OSM reply brief in support of their motion to sever and transfer will be due 10 days after the expiration of any applicable stay.

On Jan 27, two days prior to the stay motion, Antelope Coal LLC, Thunder Basin Coal Co. LLC, New Mexico Coal Resources LLC and Bowie filed arguments with the court. They said they have all moved to intervene in this proceeding and that the court had not yet acted on these motions.

The coal companies wrote: “Mining Operators submit this Proposed Notice to inform the Court that on Wednesday, January 13, 2016, Plaintiff WildEarth Guardians (‘WildEarth’) sent to each of the Mining Operators a written demand stating that it ‘plan[s] to move for a preliminary injunction’ barring Mining Operators from continuing to mine coal on the land covered by Federal Defendants’ mining plan approvals unless they voluntarily agree to cease mining. On January 26, 2016, each of the four Mining Operators sent individual responses to WildEarth stating that they will not cease mining.

“For each Mining Operator, cessation of current or prohibition of future mining operations on the land under challenge would result in substantial immediate harm, including disrupting overall mining operations, layoffs of miners, and economic injury both to the Mining Operators and the surrounding communities, with the magnitude of injury varying according to each mine’s specific circumstances. Mining Operators have the legal right and indeed the legal obligation to mine the coal for which the mining plan approvals have been issued, subject to robust mine-specific state and federal regulatory requirements.

They said the impending preliminary injunction motion highlights the importance of: granting the Interior/OSM motion to sever and transfer plaintiff’s claims; and granting their pending motions to intervene.

The coal companies added: “Deciding Federal Defendants’ Transfer Motion in advance of other pending motions will preserve judicial resources as the Court may follow the established precedent of this District and hold that the District of Colorado is not the proper forum to hear WildEarth’s claims against the Federal Defendants’ mine plan approvals for out-of-state coal mines. By granting the Federal Defendants’ Transfer Motion, this Court would not need to consider the propriety of any requested preliminary injunctive relief affecting those coal mines located in Wyoming (the Antelope Mine and Black Thunder Mine) and New Mexico (the El Segundo Mine).

“In addition, WildEarth’s demand makes it all the more clear that the Transfer Motion should be granted. WildEarth cannot fairly take the position (as it does in opposing the Federal Defendants’ Transfer Motion) that individualized facts about the mines are irrelevant to this case, while it insists, in separate communications with counsel for each mine, that it receive mine-specific information about the operations at each of these mines. Nor can WildEarth fairly insist that there is no cognizable ‘local’ interest in the case, while at the same time it pursues preliminary injunctive relief that could halt mining operations at four mines in three states, resulting in substantial, immediate harm, including layoffs and reduced revenues to the mine owners and surrounding communities, and decreased tax and royalty income to three separate states.

“WildEarth’s plan to file a motion for a preliminary injunction also highlights the need for the Court to expeditiously grant the pending motions to intervene and to deny the conferral and coordination restrictions sought by WildEarth. Given the immediate threat to halt their mining operations, Mining Operators have an obvious interest in participating fully and freely in this case. As WildEarth continues to employ its litigation tactics to stop all coal mining on public lands, justice requires that the Mining Operators who are the target of this effort be allowed to protect their individual, mine-specific rights and obligations through whatever legal and factual defenses apply to their individual mining operations.”

Court records show the preliminary injunction request was never filed. It may have been rendered moot by the Jan. 29 request to stay the proceeding. The court had not acted on the stay request as of late in the day on Feb. 1.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.