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In re In re Permanent Surface Mining Regulation Litig.

Citation: 9 ELR 20720
No. No. 79-1144, 13 ERC 1586/(D.D.C., 08/21/1979) Preliminary injunctive relief granted in part & denied in part

In a suit raising numerous challenges to the Secretary of the Interior's regulations establishing a permanent surface mining control program, the court continues a preliminary injunction against enforcement of the August 3, 1979 deadline for submission of state programs, denies industry plaintiffs' motions for preliminary relief regarding the permit application requirements, and grants summary judgment for the Secretary on the public participation and ex parte contacts issues. The Surface Mining Control and Reclamation Act required states to submit proposed programs regulating surface mining within their borders by August 3, 1979. On July 25, 1979, the court preliminarily enjoined this deadline, and the instant decision continues the injunction because of the failure of the Secretary to meet his own deadlines under the Act for the promulgation of final regulations for the permanent program. Injunctive relief is appropriate because plaintiffs are likely to succeed on the merits of their claim that as a result of the Secretary's delay they have had insufficient time to prepare their programs; furthermore, the August 3 deadline was "directory" rather than mandatory. In addition, the states would suffer irreparable harm if held to the August 3 deadline, which outweighs prospective harm to the Secretary for being unable to evaluate the state plans adequately before the June 3, 1980 deadline by which such plans must be approved or replaced with federal plans. The court also points out that Congress will probably extend the June 3 deadline, and the public interest will be better served by an extension of the August 3, 1979 deadline.

Turning to the environmental plaintiffs' challenges to the regulations, the court upholds as within his discretion the Secretary's refusal to establish detailed requirements for citizen participation in the development of state programs. The court also rejects claims that the Secretary should bar ex parte contacts between state and federal officials prior to the submission of a state program and denies environmental plaintiffs' motion to compel discovery on all but a limited part of the ex parte contacts issue. As to the industry plaintiffs' claim that the permit application requirements are so burdensome as to threaten the continued operation of their mines, the court concludes that they have failed to show likely success on the merits or irreparable harm in the absence of injunctive relief. Plaintiffs have failed to demonstrate that the permit regulations provide insufficient discretion to the states; however, the adequacy of state discretion can best be evaluated during consideration of this action on the merits. The court also rules that a separate plaintiff is not likely to succeed on the merits of its claim that the court should carve out a smallproducer exception greater than that provided in the Act.

Counsel for Environmental Plaintiffs
Terence L. Thatcher
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Ave. NW, Washington DC 20001
(202) 624-8390

L. Thomas Galloway
Center for Law and Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Jonathan Lash
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Counsel for Commonwealth of Virginia
Roger L. Chaffe, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071

Counsel for Defendant
Lois J. Schiffer, Alfred T. Ghiorzi, Carol Lynn Green
Land and Latural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

William M. Eichbaum, Associate Solicitor
Office of Surface Mining
Department of the Interior, Washington DC 20240
(202) 343-4671

Counsel for Industry Plaintiffs
Steven L. Friedman
Dilworth, Paxson, Kalish, Levy & Kauffman
2600 Fidelity Bldg., Philadelphia PA 19109
(215) 546-3000

Thomas G. Johnson, Jr., Senior Counsel
Shell Oil Co.
1 Shell Oil Plaza, P.O. Box 2463, Houston TX 77001
(713) 241-6161

Guy Nevill
Legal Dep't, Dow Chemical USA
Houston Dow Center, P.O. Box 3387, Houston TX 77001
(713) 978-2971

I. Michael Greenberger
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Robert W. Jordan
Rain, Harrell, Emery, Young & Doke
4200 Republic Nat'l Bank Tower, Dallas TX 75201
(214) 742-1021

Harvey M. Sheldon
Nisen, Elliott & Meier
Suite 2300, One N. La Salle St., Chicago IL 60602
(312) 346-7800