U.S. Water News Online
BILLINGS, Mont. -- A federal appeals court has agreed to
stay its ruling that water released during coal-bed methane drilling
is a pollutant and subject to permitting requirements. The decision
will allow Fidelity Exploration & Production Co. time to ask the
U.S. Supreme Court for a review of the ruling.
The decision surprised the Northern Plains Resource Council, which
said the 9th U.S. Circuit Court of Appeals granted Fidelity's request
for a stay before the conservation group had a chance to oppose it.
Fidelity is a subsidiary of Bismarck, N.D.-based MDU Resources
``The day of the ruling was the day we were going to file'' a
motion to oppose, attorney Mike Reisner said, noting that Northern
Plains has since asked the appeals court to reconsider the stay.
The case stems from a lawsuit filed in 2000 by Northern Plains,
alleging that Fidelity had illegally discharged water from its
coal-bed methane operations in southeast Montana into the Tongue
Fidelity, the only commercial producer of coal-bed methane in the
state, has maintained that it sought and received the proper permits
to discharge water -- even after the Montana Department of
Environmental Quality said none were needed because of an exemption.
But DEQ also made clear the federal Environmental Protection Agency
doesn't agree with the permit exception.
Last summer, a U.S. District Court judge in Montana dismissed
Northern Plains' case, ruling the water isn't a pollutant under the
federal Clean Water Act and that discharging coal-bed methane water
doesn't require a permit under Montana law.
But the appeals court overturned that decision last month.
The stay it granted this week is for 90 days, pending the filing
before the Supreme Court.
That, Reisner said, means the district court ruling is in effect
and ``that creates a lot of uncertainty right now.''
Mike Caskey, Fidelity's executive vice president and chief
operating officer, said a stay was logical.
``You don't want to implement something and then undo what you
implemented,'' he said.
Caskey said that, while Fidelity's operations are properly
permitted, the company is ``still very concerned about the ability of
Montana to rightfully take advantage of its natural resource
``A lot of these obstructionist, forever-delaying tactics NPRC
takes is very detrimental to Montana,'' he added.
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