                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



   NATIONAL PARKS CONSERVATION
   ASSOCIATION,

                          Plaintiff,

                        v.                          Civil Action 09-00115 (HHK)

   KEN SALAZAR, Secretary of the United
   States Department of the Interior, et al.,

                          Defendants.



                         MEMORANDUM OPINION AND ORDER

       The National Parks Conservation Association (“NPCA”) brings this suit against Ken

Salazar, Secretary of the Department of the Interior, Glenda Owens, Acting Director of the Office

of Surface Mining Reclamation and Enforcement (“OSM”), and Lisa Jackson, Administrator of

the Environmental Protection Agency (“EPA”), (collectively, the “Federal defendants”)

challenging the promulgation of OSM’s Final Rule for “Excess Spoil, Coal Mine Waste, and

Buffers for Perennial and Intermittent Streams,” 73 Fed. Reg. 75,814 (Dec. 12, 2008) (“SBZ

Rule”), and the EPA’s written determination concurring in the promulgation of the Rule. NPCA

alleges that the Federal defendants violated the Administrative Procedures Act, 5 U.S.C. § 551 et

seq. (“APA”), the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1276, subsection

7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2) (“ESA”), and sections 101 and

303 of the Clean Water Act, 33 U.S.C. §§ 1251, 1313. The National Mining Association

(“NMA”) has been permitted intervene as a defendant.
       Before the Court are the motions of the Federal defendants to remand and vacate the SBZ

Rule [#10] and to dismiss this action for lack of jurisdiction [#12] on the grounds that there no

longer exists a case and controversy. Upon consideration of the motions, the oppositions thereto,

and the record in this case, the Court concludes that the motions should be denied.

                                        I. BACKGROUND

       On December 12, 2008, after publishing notice and soliciting public comment on its

proposed amendment to regulations regarding stream buffer zones, OSM published the SBZ

Rule, which regulates excess mining spoil, disposal of mine waste, stream buffer zones, and

stream-channel diversions. NPCA filed this suit in January 2009 alleging that the Federal

defendants violated several statutes in promulgating and concurring in the promulgation of the

SBZ Rule. In April 2009, Secretary Salazar “determined that the OSM erred in failing to initiate

consultation with the U.S. Fish and Wildlife Service under the ESA to evaluate possible effects

of the SBZ Rule on threatened and endangered species.” Defs.’ Mot. for Remand & Vacatur at 2.

Accordingly, the Federal defendants move to remand and vacate the SBZ Rule and to dismiss this

action. NMA opposes the Federal defendants’ motions and the NPCA supports the motions.

                                          II. ANALYSIS

       The Federal defendants argue that this Court should employ its equitable authority to

remand, as well as vacate, the SBZ Rule because Secretary Salazar has confessed serious legal

deficiencies in the rulemaking and vacatur will not result in disruptive consequences. The

Federal defendants further argue that there no longer exists a case or controversy between the

parties, and that judicial efficiency counsels in favor of the Federal defendants’ position that this




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case should be dismissed, because dismissal would afford plaintiff the same relief that it would

receive if it won on the merits.

       In opposition, the NMA argues that the Federal defendants should not be permitted to

bypass the APA’s procedures for repealing an agency rule. The NMA disputes the Federal

defendants’ assertion that there was any legal deficiency in the rule making leading up to the

promulgation of the SBZ Rule and the Federal defendants’ contention that vacating the rule

would not cause disruption. The NMA’s position has merit.

       The cases cited by the Federal defendants provide scant support for their position that

remand and vacatur is appropriate here because the circumstances addressed in those cases are

materially different from those extant here. For example in Allied-Signal, Inc. v. U.S. Nuclear

Regulatory Commission, 988 F.2d 146, 150-51 (D.C. Cir. 1993), and United Mine Workers v.

Dole, 870 F.2d 662, 673-74 (D.C. Cir. 1989), a court remanded and vacated an agency action

only after reaching the merits of the challenge. Here, the Federal defendants seek a remand and

vacatur of the SBZ Rule without a determination on the merits that the SBZ Rule is legally

deficient. Other cases cited by the Federal defendants relate to an agency’s motion for voluntary

remand upon a finding of significant new evidence. See Ethyl Corp. v. Browner, 989 F.2d 522,

524 (D.C. Cir. 1993) (holding that where there was significant new evidence, a remand was

appropriate). Here, the Federal defendants point to no new evidence and ask the Court not only

to remand the case, but to vacate the SBZ Rule.

       Building Industries Legal Defense Foundation v. Norton, 231 F. Supp. 2d 100 (D.D.C.

2002) and National Association of Home Builders v. Evans, No. 00-cv-02799, 2002 WL 1205743

(D.D.C. 2002) also addressed materially different circumstances. In National Association of



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Home Builders, the court approved a consent decree that vacated and remanded an agency rule

over the objections of amici curiae where the Secretary of Commerce confessed legal error in

light of an adverse Tenth Circuit decision. 2002 WL 1205743, at *3. There, all parties to the

case agreed that the rule should be remanded and vacated. Id. Here, NMA, a full party to the

case as an intervenor, see District of Columbia v. Merit Sys. Protection Bd., 762 F.2d 129, 132

(D.C. Cir. 1985), opposes the Federal defendants’ motion for vacatur. Further, while not

reaching the merits itself, the court in National Association of Home Builders reviewed the Tenth

Circuit decision on the merits, which had caused the Secretary of Commerce to confess error, and

found the other court’s opinion to be “well-reasoned” and founded in “persuasive rationale.”

2002 WL 1205743, at *3. In Building Industry Legal Defense Foundation, the case which NMA

concedes to be most factually analogous to this case, the court granted a motion for remand and

vacatur over the objections of intervenor environmental groups where the Secretary of the

Interior decided that a rule required reconsideration in light of the same Tenth Circuit decision.

231 F. Supp. 2d at 108. There, however, all parties agreed that the rule should be remanded

because legal error existed in the rulemaking process and the only dispute concerned how the

agency should be instructed upon remand and whether vacatur was also appropriate. Id. at 103.

       The Court finds no precedent to support the proposition that it should remand and vacate

the SBZ Rule under the circumstances presented here. Moreover, the NMA has the better

argument that granting the Federal defendants’ motion would wrongfully permit the Federal

defendants to bypass established statutory procedures for repealing an agency rule. The APA

requires government agencies to follow certain procedures, including providing for public notice

and comment, before enacting or amending a rule. 5 U.S.C. § 553(b), (c). An agency must follow



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the same procedure in order to repeal a rule. 5 U.S.C. § 551(5) (“‘[R]ule making’ means agency

process for formulating, amending, or repealing a rule.”(emphasis added)); see Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its

course by repealing a rule is obligated to supply a reasoned analysis for the change.”); Consumer

Energy Council of Am. v. FERC, 673 F.2d 425, 446 (D.C. Cir. 1982), aff’d, 463 U.S. 1216 (1983)

(“[T]he APA expressly contemplates that notice and an opportunity to comment will be provided

prior to agency decisions to repeal a rule.”). While notice and comment procedure is not required

where a court vacates a rule after making a finding on the merits, see, e.g., Cement Kiln Recycling

Coal v. EPA, 255 F.3d 855, 872 (D.C. Cir. 2001), granting vacatur here would allow the Federal

defendants to do what they cannot do under the APA, repeal a rule without public notice and

comment, without judicial consideration of the merits.

                                       III. CONCLUSION

       For the reason set forth above and because this case quite clearly presents a continuing

“case and controversy,” it is this 12 th day of August 2009, hereby

       ORDERED that defendants’ motions for voluntary remand and vacatur [#10] is

DENIED; and it is further

       ORDERED that defendants’ motion to dismiss [#12] is DENIED.




                                                              Henry H. Kennedy, Jr.
                                                              United States District Judge




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