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2020-06-16_ENFORCEMENT - C1980007
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2020-06-16_ENFORCEMENT - C1980007
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Entry Properties
Last modified
6/25/2020 12:23:33 PM
Creation date
6/16/2020 10:50:39 AM
Metadata
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Template:
DRMS Permit Index
Permit No
C1980007
IBM Index Class Name
Enforcement
Doc Date
6/16/2020
Doc Name
Request for Inspection Over Failure of West Elk to Comply With Applicable State Coal Mining Laws
From
WildEarth
To
DRMS
Violation No.
CO2020001
Email Name
JRS
JDM
LDS
Media Type
D
Archive
No
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Accordingly, under the Tenth Circuit order, the Colorado Roadless Rule is in still in effect, but <br />there is no longer an exception for coal mining in the North Fork Exception area, and activity <br />premised on that unlawful exception may not occur. While the District Court has yet to enter the <br />formal vacatur order, this is a ministerial task that the District Court is required to take. See e.g., <br />Colo. Interstate Gas Co. v. Natural Gas Pipeline Co., 962 F.2d 1528, 1534 (10th Cir. 1992) <br />(explaining that it is "well established that a district court must comply strictly with the mandate <br />rendered by the reviewing court."); Litchfield v. Dubuque & P.R. Co., 74 U.S. 270, 271 (1868) <br />("After the decision by this court, the court below had no power but to enter a judgment <br />according to the mandate, and to carry that judgment into execution. This was the end of the <br />case."). The Tenth Circuit order has immediate and retroactive effect. See United States v. Sec. <br />Indus. Bank, 459 U.S. 70, 79 (1982) (A "principle that statutes operate only prospectively, while <br />judicial decisions operate retrospectively, is familiar to every law student."). DRMS should not <br />stand idly by while Mountain Coal seeks to thwart the clear mandate from the Tenth Circuit by <br />taking advantage of court delays in implementing the vacatur order during a pandemic that has <br />resulted in significant court delays. <br />The vacatur of the North Fork Exception strips federal and state agencies of their <br />authority to allow Mountain Coal to conduct surface coal mining activities—activities such as <br />road -building and tree cutting are prohibited within the Sunset Roadless Area. See 36 C.F.R. § <br />294.43(a). Further, because the Tenth Circuit order has retroactive effect, Mountain Coal never <br />obtained a valid right to construct roads or other surface -disturbing activities through approval of <br />the lease modifications or mine plan approval. Nor does Mountain Coal have any pre-existing <br />lease, permit, or other rights to access the Sunset Roadless Area issued prior to the promulgation <br />of the Colorado Roadless Rule on July 3, 2012 3 The Rule's preamble makes it clear that while <br />"it does not affect the terms or validity of leases existing prior to the promulgation date of the <br />final rule," it was meant to limit surface -disturbing activities under any future leases.' Here, <br />Mountain Coal's access to the Sunset Roadless Area directly stems from the unlawfully adopted <br />North Fork Exception to the Colorado Roadless Rule, which the Tenth Circuit ordered to be <br />vacated. Accordingly, Mountain Coal lacks any legal right to build roads or cut trees within the <br />related litigation." Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982). Its purpose is "to protect <br />the integrity of the judicial process," New Hampshire v. Maine, 532 U.S. 742, 749 (2001), and "may be <br />invoked to prevent a party from playing fast and loose with the courts," Konstantinidis v. Chen, 626 F.2d <br />933, 937 (D.C. Cir. 1980). In evaluating judicial estoppel, courts "inquire whether a party has succeeded <br />in persuading a court to accept the party's earlier position, so that judicial acceptance of an inconsistent <br />position in a later proceeding would create the perception that either the first or second court was misled," <br />and "whether the party seeking to assert an inconsistent position would derive an unfair advantage or <br />impose an unfair detriment on the opposing party if not estopped." New Hampshire, 532 U.S. at 750. <br />3 36 C.F.R. § 294.48(a). <br />'77 Fed. Reg. 39576, 39579 (July 3, 2012). <br />s 36 C.F.R. § 294.48(a). <br />El <br />
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