Colowyo case continues in the courts |

Colowyo case continues in the courts

Patrick Kelly

On June 12, legal counsel for WildEarth Guardians filed their response in opposition to Colowyo Coal Co.’s motion for stay pending appeal.

The response states that Colowyo is not entitled to a stay of the district court’s order because it fails to demonstrate all the necessary requirements.

Colowyo, a subsidiary of Westminster-based Tri-State Generation and Transmission Association, requested the stay on May 29, when it filed its notice of appeal on federal district Judge R. Brooke Jackson’s May 8 ruling.

In his ruling, Jackson ordered the Office of Surface Mining and Reclamation to re-do the environmental assessment for Colowyo mine’s South Taylor Pit and threatened vacatur if the assessment was not completed within 120 days.

When reviewing a stay motion, the courts consider: 1) An applicant’s likelihood of success on the merits; 2) a likelihood of irreparable harm to the applicant if the stay is not granted; 3) whether issuance of a stay will substantially injure the other parties involved; and, 4) where the public interest lies.

Lee Boughey, Tri-State’s senior manager of corporate communications and public affairs, wrote in an email that Guardians’ response to the motion for stay mischaracterizes many of Colowyo’s central points and fails to engage on others.

“In many ways, WildEarth Guardians simply restates what the court ruling said and fails to provide a meaningful … response to the issues raised,” he wrote. “Colowyo has established a solid foundation for its success on appeal and believes the motion for stay pending appeal should be granted.”

If the district court does not grant the stay, Colowyo can seek a stay from the U.S. Court of Appeals for the 10th Circuit. However, Ruscavage-Barz said it is rare for the appellate court to grant stays as well.

“Any district court rarely grants a stay, and it’s the same thing in the court of appeals as well,” said Samantha Ruscavage-Barz, an attorney for Guardians.

In it’s motion, Colowyo Coal Co. states that halting mining operations at South Taylor Pit would cause immediate and serious harm to the mine and affected community, qualifying them for a stay.

“Colowyo would have no permitted coal to mine and no recourse against any party for damages arising from the disruption of mining,” the motion reads.

Guardians rebutted, writing that any potential injury to the mine is purely speculative at this point, and the court has clear definitions of what constitutes irreparable harm.

“Courts have said that economic harm is not in and of itself irreparable,” Ruscavage-Barz said, adding that environmental harm has been considered irreparable by the courts.

In this case, Colowyo Coal Co. cannot invoke third party injury — meaning economic effects on surrounding areas cannot be used to establish the threat of irreparable injury.

“Colowyo has demonstrate harm to itself as a company,” Ruscavage-Barz said.

However, public interest is still considered under the fourth prong of the court’s evaluation process.

Reach Patrick Kelly at 970-875-1795 or Follow him on Twitter @M_PKelly.

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