The Eighth Circuit Court of Appeals entered a judgment and order on Friday affirming the North Dakota District Court’s ruling in favor of a mining company, which was accused of violating the Clean Air Act (CAA) by owners of a ranch near the mine. Judge Bobby E. Shepherd authored the opinion, Judge James B. Loken agreed with the opinion, but Judge David R. Stras dissented.
The lawsuit was filed by Casey and Julie Voigt, who own and operate a ranch in North Dakota, they alleged that Coyote Creek Mining Company, LLC (CCMC) did not obtain the necessary permit for its mine, which is adjacent to the ranch, under the CAA and did not adhere to a dust control plan. After the district court granted CCMC summary judgement, ruling that the CAA dust control requirements did not apply, the plaintiffs appealed the case in September 2018, purporting that the district court erred in saying the regulations are ambiguous, and should not have relied on the North Dakota Department of Health (NDDOH) in its conclusions.
In its order affirming the district court’s decision, the court reported that before construction of the mine, CCMC applied for a permit, and the NDDOH did not consider the coal pile as part of the processing plant, and determined that the mine was a minor source of emissions. The opinion argued that the district court’s opinion was “exhaustive and well-reasoned” and showed that the decision by the NDDOH did not go against EPA guidance.
The lawsuit was filed during the construction of the plant and mining operation, the Voigts proffered that if the coal pile was included in the evaluation, CCMC would need a major source permit instead of the minor source permit it received, thus it violated the CAA by not having the dust control plans it would have needed under the other permit.
Stras, the dissenting judge, said that he “would not defer to the North Dakota Department of Health’s interpretation of a federal regulation,” and said that he would consider the coal pile “in” the CCMC’s plant.
The Voigts are represented by Braaten Law Firm. CCMC is represented by Crowley & Fleck, Kushner & Hamed, and Jones Day.
