What does the appeals process mean to Colowyo’s future? | CraigDailyPress.com

What does the appeals process mean to Colowyo’s future?

Patrick Kelly

On May 8, federal district Judge R. Brooke Jackson ordered the Office of Surface Mining Reclamation and Enforcement to re-do it's environmental assessment for Colowyo mine's South Taylor Pit, ruling that the original assessment did not comply with federal law.

OSMRE has committed itself to completing the revamped environmental assessment within the 120-day period allotted by the judge.

But, as the issue began in the courts — it will likely end in the courts and the appeals process looms in the distance.

The question-and-answer format of this article aims to address the complicated procedural aspects of the litigation surrounding Colowyo mine in the simplest way possible.

What is Judge Jackson's ruling based on?

Jackson's ruling is the result of a claim brought by environmental advocacy Group WildEarth Guardians. Guardians' claim asserted OSMRE did not comply with the National Environmental Policy Act when it recommended approval of Colowyo's mining plans to the Secretary of the Interior's office in 2007.

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Jackson agreed with the claim, specifically citing OSMRE's failure to facilitate adequate public comment and take into account the indirect impacts of mining coal — steps he found were mandated by NEPA.

What is the current status of the litigation?

Colowyo's owner Tri-State Generation and Transmission Association, an intervenor in the original claim against OSMRE, filed a notice of appeal and a motion for stay pending appeal on May 29. Now, the district court will evaluate the request for a stay and the U.S. Court of Appeals for the 10th Circuit will eventually have to determine whether it has jurisdiction to review the case.

OSMRE has not commented on if it will appeal, and it has until July 6 to do so.

Samantha Ruscavage-Barz, attorney for Guardians, said they plan to file a response to the stay motion on Friday but it will be months before the parties file briefs addressing the merits of the district court’s order.

"I'd say at least three months away," she said.

What is a stay pending appeal?

A stay pending appeal is a request to the district court to refrain from enforcing its order until the appeals process is completed.

In this case, if a stay is granted, it will allow Colowyo to proceed with mining operations while the appellate court evaluates the district court's original ruling.

If the district court does not grant the stay, Colowyo can seek a stay from the 10th circuit.

Mark Squillace, director of the Natural Resources Law Center at the University of Colorado Boulder, said if the 10th circuit sees merit in an appeal, a stay is generally granted fairly quickly.

How does the court determine if it will grant a stay?

In this case, the court will consider whether the coal company is going to suffer irreparable harm if they don't grant the stay, Squillace said.

"If the court feels that denying the stay is going to immediately jeopardize the company’s position… then they might grant a stay even though the whole thing will be resolved, perhaps, within 120 days," he said.

Squillace said he believes a stay pending appeal is unlikely.

"I think what the court is going to say is if they shut down the mine in 120 days, come back to us and we'll decide then," he said.

What issues is Tri-State raising on appeal?

Briefs detailing how Tri-State will challenge the district court’s order have not been filed, and attempts to contact Tri-State's legal counsel were deferred to the public affairs department.

However, Colowyo Coal Co.’s motion for stay identifies several potential issues including Guardians' standing to sue, the timeliness of the lawsuit and whether the district court correctly interpreted federal law.

Will Tri-State's appeal gain traction?

A complicated legal precedent known as the administrative-remand rule prevents this from being an easy question to answer.

In August 2011, the 10th circuit refused an appeal from BHP Navajo Coal Company in a case similar to the one brought by Colowyo Coal Co.

The court denied the appeal stating "remand by a district court to an administrative agency for further proceedings is ordinarily not appealable because it is not a final decision."

Counsel for WildEarth Guardians is aware of this precedent.

"The appeal is premature because the 10th circuit has said that when a district court remands a decision, like it did here, there's no final agency action which can be appealed," Ruscavage-Barz said.

Lee Boughey, senior manager of corporate communications and public affairs for Tri-State, said the Navajo case is irrelevant to Colowyo's appeal.

"The 10th circuit denied an emergency stay in which the mine did not go to the district court first, so it has no precedential effects on our motion or our appeal," Boughley said.

Squillace said the appeal seems frivolous.

"There's no need to go to court right now over this issue, we can wait and see what OSM does within 120 days," he said. "My guess is they're going to do something, and if they do something then that will be the subject of maybe some further legal challenges."

Reach Patrick Kelly at 970-875-1795 or pkelly@CraigDailyPress.com.

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