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Sierra Club v. Jewell

United States Court of Appeals, District of Columbia Circuit

August 26, 2014

SIERRA CLUB, ET AL., APPELLANTS
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF INTERIOR, ET AL., APPELLEES

Argued: February 6, 2014.

Appeal from the United States District Court for the District of Columbia. (No. 1:10-cv-01513).

Daniel P. Selmi argued the cause for appellants. With him on the briefs were Aaron S. Isherwood, Peter M. Morgan, Andrea C. Ferster, and Elizabeth S. Merritt. Paul W. Edmondson entered an appearance.

Judith Rivlin was on the brief for amicus curiae United Mine Workers of America in support of appellants. Arthur Traynor III entered an appearance.

Katherine J. Barton, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Robert G. Dreher, Acting Assistant Attorney General, and David C. Shilton, Attorney. Andrew C. Mergen, Attorney, U.S. Department of Justice, entered an appearance.

Robert G. McLusky, Blair M. Gardner, and Michael J. Schrier were on the brief for amicus curiae West Virginia Coal Association, Inc. in support of appellees.

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit Judge, and SENTELLE, Senior Circuit Judge. OPINION filed by Circuit Judge SRINIVASAN. Dissenting opinion filed by Senior Circuit Judge SENTELLE.

OPINION

Srinivasan, Circuit Judge :

The Battle of Blair Mountain is the largest armed labor conflict in our nation's

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history. In late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600-acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.

Recently, various environmental and historical preservation organizations, recognizing Blair Mountain Battlefield's historical significance, have sought to gain protection for the Battlefield from surface coal mining. This case arises from their efforts to obtain the Battlefield's listing in the National Register of Historic Places. After several unsuccessful nominations for its inclusion in the Register, the Battlefield

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gained listing in 2009. Its stay in the Register was short-lived. Within days, the Keeper of the Register removed the Battlefield upon determining that the wishes of area property owners had not been accurately captured in the nomination process. The organizations then brought an action in federal court challenging the Battlefield's removal from the Register. The district court granted summary judgment against them, holding that they lack standing because they fail to demonstrate the requisite injury, causation, or redressability. We disagree and conclude that they have standing to challenge the Keeper's decision.

I.

On January 13, 2009, the Deputy West Virginia State Historic Preservation Officer (SHPO) nominated the Battlefield to the Keeper of the National Register of Historic Places for inclusion in the Register. Under both federal and state law, listing of a place in the Register triggers establishment of certain protections, including minimization of adverse impacts from surface mining. See 30 C.F.R. § 780.31(a); W.Va. Code R. § 38-2-3.17.c. For a site to be listed in the Register, a majority of property owners in the area must not object. See 16 U.S.C. § 470a(a)(6); 36 C.F.R. § 60.6(g). If a majority object, the site cannot gain listing. See 16 U.S.C. § 470a(a)(6); 36 C.F.R. § 60.6(n), (s). For

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the January 2009 nomination of the Battlefield, the SHPO initially determined that a majority of property owners did not object to inclusion of the Battlefield in the Register. Following that determination, on March 30, 2009, the Keeper listed the Battlefield in the Register.

One week later, the SHPO notified the Keeper that he had failed to account for a number of objections to the listing, which he had received from a law firm representing several coal companies. When the SHPO took into consideration the additional objections, he found that a majority of landowners objected to the Battlefield's inclusion in the Register. The SHPO therefore asked the Keeper to remove the Battlefield from the Register. After soliciting and considering comments, the Keeper delisted the Battlefield, agreeing that there had been prejudicial procedural error in the listing process. See 36 C.F.R. § 60.15(a)(4).

The Sierra Club, the Ohio Valley Environmental Coalition, and other organizations (collectively, the Coalition) filed an action in federal district court against the Keeper, the Secretary of the Interior, and the Director of the National Park Service (collectively, the Interior). The Coalition claimed that the Keeper's decision

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to delist the Battlefield was arbitrary and capricious, and sought vacatur of the decision and relisting of the Battlefield as of March 30, 2009. The district court granted summary judgment to the Interior, holding that the Coalition failed to establish standing to bring the action. Sierra Club v. Salazar, 894 F.Supp.2d 97, 114 (D.D.C. 2012).

According to the district court, the Coalition could not demonstrate any of the three components of standing: injury in fact, causation, or redressability. With regard to injury in fact, the court held that the Coalition failed to show that any injury was " actual or imminent." Id. at 110 (internal quotation marks omitted). Even though " a considerable amount of the Battlefield is . . . currently subject to surface mining permits," there was no actual or imminent injury because the coal companies had yet to mine the Battlefield under the permits. Id. at 110. The court viewed any claim of future mining to be " purely conjectural," reasoning that certain permits had been in existence for years with no mining on the Battlefield. Id. at 112. The Coalition also could not satisfy causation because its concerns depended on " speculative predictions about the actions of third parties, the coal mining companies." Id. at 113. Turning to redressability, the

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court acknowledged that federal and West Virginia mining law generally prohibited surface mining on property listed in the Register. Id. at 114 (citing 30 U.S.C. § 1272(e)(3)). Those prohibitions, however, contained an exemption for permits with valid existing rights. Id. According to the district court, the coal companies likely had valid existing rights because the permits had been " acquired prior to the historic district's inclusion on the National Register." Id. Therefore, the court held, " surface ...


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