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West Virginia Highlands Conservancy v. Norton

ELR Citation: 32 ELR 20581
Nos. No. 2:00-1062, 190 F. Supp. 2d 859/(S.D. W. Va., 03/18/2002) environmental group's motions denied

The court denies an environmental group's motions challenging the Office of Surface Mining's (OSM's) approval of a West Virginia law amending the alternative bonding system (ABS) requirements under the state's Surface Mining Control and Reclamation Act (SMCRA)-approved mining program. The law at issue was enacted after the group challenged the adequacy of the state's ABS and OSM's failure to review the adequacy of the state mining program. Once the law was enacted, OSM approved its amendment to the state surface mining program, but deferred the question of whether the law would eliminate the deficiencies in the state's ABS. The group sought review of OSM's bifurcated approval of the law and alleged that the state had failed to submit 16 additional amendments to its mining law required by OSM and that OSM unreasonably delayed action relating to 9 other required state amendments. The court first holds, however, that summary judgment cannot be granted to the group on the question of OSM's bifurcation of approval of the law. In bifurcating the approval process, OSM relied on an internal directive that allows approval of an ABS amendment even if it does not fully remedy all deficiencies. Although such directives are not afforded the same deference as rulemakings, they are afforded some weight. Moreover, OSM has promised to make its final decision regarding the state program by May 28, 2002, and OSM has promised that if the law is not approved, it will begin proceedings under 30 C.F.R. Part 733 to withdraw approval of the state program. Further, OSM's rationale for bifurcating approval in order to obtain more funds for bonding while providing additional time to consider complex issues in the law is reasonable. Thus, considering the OSM's internal directive, the rationale for bifurcation, and its time-sensitive promise, bifurcation was neither arbitrary or capricious, nor inconsistent with SMCRA. The court next holds that although OSM failed to take the required actions on the additional state amendments, summary judgment on the claims is moot because OSM promised to approve or disapprove all of the state's amendments by May 1, 2002, or initiate proceedings under 30 C.F.R. Part 733 by May 15, 2002.

Counsel for Plaintiff
James M. Hecker
Trial Lawyers for Public Justice
1717 Massachusetts Ave. NW, Ste. 800, Washington DC 20036
(202) 797-8600

Counsel for Defendants
Kasey Warner
U.S. Attorney's Office
3201 Federal Bldg.
500 Quarrier St., Charleston WV 25301
(304) 345-2200

Haden, J.