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Montana Environmental Information Center v. Stone-Manning

United States Court of Appeals, Ninth Circuit

September 11, 2014

MONTANA ENVIRONMENTAL INFORMATION CENTER; SIERRA CLUB, Plaintiffs-Appellants,
v.
TRACY STONE-MANNING, in her official capacity as Director of the Montana Department of Environmental Quality, Defendant-Appellee, and SPRING CREEK COAL COMPANY LLC; GREAT NORTHERN PROPERTIES LIMITED PARTNERSHIP; CROW TRIBE OF INDIANS; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 400; WESTERN ENERGY COMPANY; WESTMORELAND RESOURCES, INC.; NATURAL RESOURCE PARTNERS L.P., Intervenor-Defendants--Appellees

Argued and Submitted, Seattle, Washington May 12, 2014

Page 1185

Appeal from the United States District Court for the District of Montana. D.C. No. 6:12-cv-00034-DLC. Dana L. Christensen, Chief District Judge, Presiding.

Environmental Law / Ripeness / Standing

The panel affirmed the dismissal for lack of subject-matter jurisdiction of a citizen suit claiming that the Director of the Montana Department of Environmental Quality would violate duties imposed by the Surface Mining Control and Reclamation Act by approving a pending application for a mining permit.

The panel held that the plaintiffs lacked standing, and their claims for declaratory and injunctive relief were not ripe. The panel concluded that the plaintiffs' alleged injury was not imminent because, even assuming arguendo that the Director would not do a proper cumulative hydrologic impact assessment under the Act, the plaintiffs' allegations did not establish a substantial risk that the Director would grant the permit application at all. Without deciding whether the firm prediction rule applied under the circumstances of this case, the panel held that the rule's standards for ripeness were not met because the panel could not make a firm prediction that the Director would grant the mining permit application.

Walton D. Morris, Jr., Morris Law Office, P.C., Charlottesville, Virginia, argued the cause on behalf of plaintiffs-appellants. Megan Anderson O'Reilly, Western Environmental Law Center, Taos, New Mexico, filed the opening brief. With her on the opening brief were Morris and Shiloh Hernandez, Western Environmental Law Center, Helena, Montana. Hernandez filed the reply brief. With her on the reply brief were O'Reilly and Morris.

Dana David, Department of Environmental Quality, Helena, Montana, argued the cause and filed the brief on behalf of defendant-appellee.

John C. Martin, Crowell & Moring LLP, Washington, D.C., argued the cause on behalf of defendants-intervenors-appellees. Sherrie A. Armstrong, Crowell & Moring LLP, Washington, D.C., filed the brief. With her on the brief were Martin; Kristen L. Nathanson, Crowell & Moring LLP, Washington, D.C.; Andrew C. Emrich, Holland & Hart LLP, Greenwood Village, Colorado; Patrick R. Day, Holland & Hart LLP, Cheyenne, Wyoming; and William W. Mercer, Holland & Hart LLP, Billings, Montana.

Christopher B. Power, Dinsmore & Shohl LLP, Charleston, West Virginia, filed the brief for Amicus Curiae Interstate Mining Compact Commission, in support of the defendants-intervenors-appellees. With him on the brief were Robert M. Stonestreet, Dinsmore & Shohl LLP, Charleston, West Virginia, and Gregory E. Conrad, Interstate Mining Compact Commission, Herndon, Virginia.

Ashley Brown, Alaska Department of Law, Anchorage, Alaska, filed the brief for Amicus Curiae State of Alaska, in support of defendants-intervenors-appellees. With her on the brief was Michael C. Geraghty, Alaska Department of Law, Anchorage, Alaska.

Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges. Opinion by Judge O'Scannlain.

OPINION

Page 1186

O'SCANNLAIN, Circuit Judge

We must decide whether a challenge to potential approval of a surface mining permit is ripe for judicial review.

I

Montana Environmental Information Center and Sierra Club (collectively, " MEIC" ) sued Tracy Stone-Manning, the Director of the Montana Department of Environmental Quality, in her official capacity. MEIC claims that Stone-Manning will violate duties imposed by the Surface Mining Control and Reclamation Act (" SMCRA" ), 30 U.S.C. § § 1201-1328, by approving a pending application for Area B of the Rosebud Mine. Invoking the statute's citizen-suit provision, 30 U.S.C. § 1270(a)(2), MEIC asked for declaratory and injunctive relief.

Page 1187

A

SMCRA establishes a " cooperative federalism" regime for mining regulation. See Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Under SMCRA, Congress " offer[s] States the choice of regulating . . . according to federal standards or having state law pre-empted by federal regulation." New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 120 ...


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