Magistrate Judge Recommends Denial of Injunctive Relief in Environmental Case

In a published report and recommendation released today, Magistrate Judge Pamela Sargent (W.D. Va.) addressed a variety of issues in Sierra Club v. Kempthorne. Interestingly, the court began its R&R as follows:

To a child of Appalachia, to see the mountains laid waste, whether by clear-cutting or strip mining, is to witness a dagger plunged into the very bosom from which you sprang and which has sustained you. Nonetheless, this court’s role in this case is not to pass judgment upon the policy decisions which allow such activities.

The Sierra Club and Southern Appalachian Mountain Stewards, Inc. filed suit against the Secretary of the Interior, seeking an order compelling the Secretary to issue a cessation order. The plaintiffs sought to prevent several companies from removing vegetation, constructing or improving roadways, or conducting any other “surface coal mining operations” on the land included in a permit application pending before the Virginia Department of Mines, Minerals & Energy. Specifically, the plaintiffs brought a citizens suit under 30 U.S.C. § 1270 for alleged violations of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. §§ 1201 et seq.).
After substantial analysis, the court made the following recommendations:

1. The district court has subject matter jurisdiction over this case under 30 U.S.C. § 1270(a)(2);
2. Neither the federal nor Virginia’s statutory or regulatory schemes define “coal surface mining operations” to include the activities at issue in this case;
3. The Secretary has the discretion to determine whether the activities at issue in this case are “coal surface mining operations;”
4. The Secretary’s determination is binding on the court unless it is inconsistent with the regulations or is plainly erroneous;
5. The Secretary’s determination that the activities at issue were not “coal surface mining operations” is not inconsistent with the regulations and is not plainly erroneous;
6. The citizens suit provision of 30 U.S.C. § 1270(a)(2) allows a federal court to intervene only when the Secretary fails to act upon a nondiscretionary duty; and
7. The court should deny the plaintiffs’ request for entry of a permanent injunction.

To conclude, the court made the following observations:

It is difficult to imagine any commercial activity that has a more devastating effect on the land than strip mining. . . . The facts before the court in this case, however, clearly show that logging the steep mountains of Southwest Virginia poses many of the same environmental and safety concerns as strip mining. Nonetheless, it is not the role of this court, in this case, to tackle the difficult policy issues raised by the dangers presented to the environment and the occupiers of adjoining lands by logging. Those issues are best left to our federal and state legislators. The court is left only to hope that those issues will be addressed before a child of Appalachia dies beneath a boulder dislodged by logging activities.