PA Fedr Sportsmens v. Seif

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

7-24-2002

PA Fedr Sportsmens v. Seif

Precedential or Non-Precedential: Precedential

Docket No. 00-2139

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PRECEDENTIAL

Filed July 24, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 00-2139 and 01-1683

PENNSYLVANIA FEDERATION OF SPORTSMEN’S CLUBS,

INC.; PENNSYLVANIA CHAPTER SIERRA CLUB;

PENNSYLVANIA TROUT, INC.; TRI-STATE CITIZENS

MINING NETWORK; MOUNTAIN WATERSHED

ASSOCIATION, INC.

Appellants in 01-1683

v.

*DAVID E. HESS, Individually and as Secretary,

Pennsylvania Department of Environmental Protection;

*GALE A. NORTON, Secretary, United States Department

of the Interior; *JEFFREY D. JARRETT, Director, Office of

Surface Mining Reclamation and Enforcement

PENNSYLVANIA COAL ASSOCIATION;

PENNSYLVANIA ANTHRACITE COUNCIL; ARIPPA,

Intervenors in D.C.

*David E. Hess,

Appellant in 00-2139

*Pursuant to F.R.A.P. 43(c)

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

D.C. Civil. No. 99-cv-01791

District Judge: The Honorable Sylvia H. Rambo

Argued April 8, 2002

Before: McKEE, BARRY, and ALARCON,*

Circuit Judges

(Opinion Filed: July 24, 2002)

Dennis Whitaker, Esq. (Argued)

Department of Environmental

Protection

909 Elmerton Avenue, 3rd Floor

Harrisburg, PA 17110

Attorney for Appellant

Kurt J. Weist, Esq. (Argued)

PennFuture

610 North Third Street

Harrisburg, PA 17101

Attorney for Pennsylvania Federation,

et al.

John T. Stahr, Esq. (Argued)

United States Department of Justice

Environment & Natural Resources

Division

P.O. Box 23795

L’Enfant Plaza Station

Washington, D.C. 20026

Attorney for Secretary of Interior,

etc., et al.

OPINION OF THE COURT

BARRY, Circuit Judge:

The central question we must answer, a question

heretofore answered by only one other court of appeals, is

whether the Eleventh Amendment bars suit in federal court

against a state official where what is at issue is that

_________________________________________________________________

* The Honorable Arthur L. Alarcon, Senior Circuit Judge, United States

Court of Appeals for the Ninth Circuit, sitting by designation.

2

official’s purported failure to implement, administer,

enforce, and maintain a federally approved state coal

mining program. We find that it does and, thus, will affirm

in part and reverse in part the orders of the District Court.

I.

INTRODUCTION

The two appeals now before us stem from a complaint

filed under the Surface Mining Control and Reclamation Act

of 1977 ("SMCRA"), 30 U.S.C. S 1201-1328 (1988 & Supp.

IV 1993), by five non-profit sporting and environmental

organizations -- the Pennsylvania Federation of

Sportsmen’s Clubs, Inc.; the Pennsylvania Chapter Sierra

Club; Pennsylvania Trout, Inc.; Tri-State Citizens Mining

Network; and the Mountain Watershed Association, Inc.

("plaintiffs"). More specifically, plaintiffs filed suit under

Section 520 of SMCRA, 30 U.S.C. S 1270, which permits

citizens suits to be commenced in federal district court by

"any person" against, as relevant here, a"State regulatory

authority to the extent permitted by the eleventh

amendment to the Constitution." S 1270(a)(2).1 Jurisdiction

_________________________________________________________________

1. Section 1270(a) reads in full:

S 1270. Citizens suits

(a) Civil action to compel compliance with this chapter

Except as provided in subsection (b) of this section, any person

having an interest which is or may be adversely affected may

commence a civil action on his own behalf to compel compliance

with this chapter --

(1) against the United States or any other governmental

instrumentality or agency to the extent permitted by the eleventh

amendment to the Constitution which is alleged to be in violation

of the provisions of this chapter or of any rule, regulation, order

or permit issued pursuant thereto, or against any other person

who is alleged to be in violation of any rule, regulation, order or

permit issued pursuant to this subchapter; or

(2) against the Secretary or the appropriate State regulatory

authority to the extent permitted by the eleventh amendment to

3

was also invoked under 28 U.S.C. SS 1331 and 1361.

Defendants in this action for declaratory and injunctive

relief are James M. Seif, Secretary, Pennsylvania

Department of Environmental Protection ("DEP");2 Gale A.

Norton, Secretary, U.S. Department of the Interior; and

Glenda H. Owens, Acting Director, Office of Surface Mining

Reclamation and Enforcement. The Pennsylvania Coal

Association, the Pennsylvania Anthracite Council, and

ARIPPA were permitted to intervene as defendants.

Seif is the sole named defendant in Counts One through

Eight of the eleven-count complaint, the only counts before

us on these appeals. While we will at a later point discuss

these counts in detail, it is sufficient for present purposes

to note that Counts One through Six allege that Seif failed

to perform various nondiscretionary duties in connection

with implementing, administering, enforcing, and

maintaining the approved Pennsylvania surface coal mining

program in accordance with SMCRA, the federal

implementing regulations, and provisions of the approved

Pennsylvania program. Counts Seven and Eight allege

Seif ’s failure to perform a nondiscretionary duty only under

SMCRA and 30 C.F.R. SS 938.16(h) and 732.17(f)(1),

respectively.

Seif moved before the District Court to dismiss Counts

One through Eight on various grounds, including the

ground that they were barred as against him by the

_________________________________________________________________

the Constitution where there is alleged a failure of the Secretary

or the appropriate State regulatory authority to perform any act or

duty under this chapter which is not discretionary with the

Secretary or with the appropriate State regulatory authority.

The district courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties.

2. Suit was brought against Seif in his official and his individual

capacities. After considering the nature of the relief sought as to him,

i.e., injunctive relief for acts within his official responsibilities, the

District Court treated the claims as properly pursued against him only

in his official capacity. Plaintiffs have not taken issue with this

determination, nor will we. Parenthetically, we will, as do the parties,

continue to refer to "Seif " although he is no longer Secretary of the DEP.

4

Eleventh Amendment and that the Ex parte Young

exception to Eleventh Amendment immunity did not apply

because plaintiffs’ claims arose under state law. The

District Court granted that motion as to all counts save

Counts One and Three. Seif appealed the District Court’s

partial denial of his motion to this Court (docketed at 00-

2139) and plaintiffs moved for reconsideration as to Counts

Four, Six, Seven, and Eight of the six dismissed counts.

The District Court treated plaintiffs’ motion for

reconsideration as one under Fed. R. Civ. Proc. 59(e) to

alter or amend the judgment, and we stayed Seif ’s appeal

pending resolution of that motion. The District Court

subsequently granted plaintiffs’ motion as to Counts Seven

and Eight, and reinstated those counts, but denied it as to

Counts Four and Six. Seif amended his notice of appeal to

include an appeal from that order; thus, No. 00-2139 is the

appeal from the District Court’s rejection of Eleventh

Amendment immunity for Seif on Counts One, Three,

Seven, and Eight. Denials of Eleventh Amendment

immunity are immediately appealable under the collateral

order doctrine. Puerto Rico Aqueduct and Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139, 144-47 (1993).

The District Court also granted plaintiffs’ motion as to

Counts Two, Four, Five, and Six to certify for interlocutory

appeal under 28 U.S.C. S 1292(b) the following"controlling

question of law as to which there is a substantial ground

for difference of opinion and [as to which] an immediate

appeal . . . may advance the ultimate termination of the

instant litigation":

Is Defendant Seif entitled to Eleventh Amendment

immunity from suit in federal court as to allegations of

continuing violations of duties under the Pennsylvania

program when ‘States with an approved State program

shall implement, administer, enforce and maintain it in

accordance with the [SMCRA], this chapter and the

provisions of the approved States program,’ by 30

C.F.R. S 733.11?

Plaintiffs thereafter successfully moved for permission to

appeal in this Court, with the appeal docketed at No. 01-

1683. Plaintiffs’ appeal and Seif ’s appeal have been

5

consolidated for disposition. We review the District Court’s

ruling on Eleventh Amendment immunity de novo. Lavia v.

Pennsylvania Dep’t of Corrections, 224 F.3d 190, 194-95

(3d Cir. 2000).

II.

THE SURFACE MINING CONTROL AND

RECLAMATION ACT

SMCRA, which has been described as providing "a truly

federalist distribution of regulatory authority for the coal-

mining industry,"3 was enacted in 1977 in response to

Congress’s concern over the environmental and societal

costs of surface coal mining operations. Congress

recognized that the expansion of coal mining to meet this

country’s energy needs "makes even more urgent the

establishment of appropriate standards to minimize damage

to the environment and to productivity of the soil and to

protect the health and safety of the public." 30 U.S.C.

S 1201(d). It recognized, as well, that "because of the

diversity, climate, biologic, chemical, and other physical

conditions in areas subject to mining operations, the

primary governmental responsibility for developing,

authorizing, issuing, and enforcing regulations for surface

mining and reclamation operations . . . should rest with the

States." Id. S 1201(f). Thus, SMCRA was intended to ensure

the viability of the surface coal mining industry and to

promote federalism. Hodel v. Virginia Surface Coal Mining &

Reclamation Ass’n., Inc., 452 U.S. 264, 289 (1981). The

Office of Surface Mining Reclamation and Enforcement

("OSM") was established as a subdivision within the

Department of the Interior with the Secretary of the Interior

("Secretary"), acting through the OSM, empowered to

administer the various state programs for controlling

surface coal mining pursuant to the Act. 30 U.S.C.

S 1211(a) and (c). OSM’s regulations promulgated pursuant

to SMCRA are codified at 30 C.F.R. Parts 700-887.15.

_________________________________________________________________

3. In re Permanent Surface Mining Regulation Litig., 617 F.2d 807, 808

(D.C. Cir. 1980).

6

Of critical importance here, SMCRA enables states to

"assume exclusive jurisdiction over the regulation of surface

coal mining and reclamation operations" on non-Federal

and non-Indian lands within the particular state. Id.

S 1253(a) (emphasis added). To achieve this exclusive

jurisdiction, a state must submit to the Secretary a

proposed program "which demonstrates that such State has

the capability of carrying out the provisions of[SMCRA] and

meeting its purposes." Id. The particular state program

must contain state laws which provide for the regulation of

surface coal mining and reclamation operations in

accordance with SMCRA’s requirements. Id.S 1253(a)(1).

The plain language of SMCRA evidences Congress’s intent

to give the states exclusive jurisdiction over the regulation

of surface mining as long as the states enact laws and

regulations that, at minimum, meet the minimum federal

standards, with the federal standards serving only as the

floor and not the ceiling for the state programs. The states

must also demonstrate that they are capable of enforcing

their laws. As we have observed, "[t]here would be no

reason to allow the states to impose their own regulations

if the regulations had to be the same as the federal Act and

regulations." Pennsylvania Coal Association v. Babbitt, 63

F.3d 231, 238 (3d Cir. 1995). Indeed, Congress was well

aware that, at least above the federal minimum, there could

not be a uniform federal standard because of the wide

differences in such things as geology and topography in

areas subject to mining operations in the various states

and the states’ familiarity with local conditions. Thus,

Congress determined that "the primary governmental

responsibility for developing, authorizing, issuing, and

enforcing regulations for surface mining and reclamation

operations . . . should rest with the States." 30 U.S.C.

S 1201(f).

While SMCRA’s purpose was to "assist" the states in

developing a satisfactory program of laws and regulations,

id. at S 1202(g), once that program was developed in a

particular state, and was approved by the Secretary, the

state would be granted "primary governmental

responsibility" for regulating surface coal mining and

reclamation operations. A state which has been granted

7

"primacy" by virtue of its approved program for regulating

surface mining would then have "exclusive jurisdiction over

the regulation of surface coal mining" within its borders. Id.

S 1253(a).4 As, most recently, the Court of Appeals for the

Fourth Circuit put it, "[W]hen a State’s program has been

approved by the Secretary of the Interior, we can look only

to State law on matters involving the enforcement of the

minimum national standards." Bragg v. West Virginia Coal

Ass’n, 248 F.3d 275, 295 (4th Cir. 2001), cert. denied, 122

S. Ct. 920 (2002). We, too, have so held. See Haydo v.

Amerikohl Mining, Inc., 830 F.2d 494, 497 (3d Cir. 1987)

("because Pennsylvania’s regulatory plan has been

approved by the Secretary, jurisdiction over the alleged

violations of the state statute and regulations lies

exclusively in the courts of Pennsylvania"); Babbitt, 63 F.3d

at 234 (noting SMCRA’s "mechanism" for according states

"exclusive jurisdiction over regulation"); see also Coteau

Properties Co. v. Dep’t of Interior, 53 F.3d 1466, 1472-73

(8th Cir. 1995) ("Primacy status gives the state‘exclusive

jurisdiction . . . .,’ S 1253(a), and state, not federal,

regulations govern once a state program is approved by

OSM."); National Wildlife Fed. v. Lujan, 928 F.2d 453, 464

n.1 (D.C. Cir. 1991) (Wald, J., concurring); Laurel Pipe Line

Co. v. Bethlehem Mines Corp., 624 F. Supp. 538, 540 (W.D.

Pa. 1986). While certain sections of SMCRA delineate those

minimum standards that a state program must contain

before it may be approved by the Secretary, we held in

Haydo, albeit in the context of a suit under a different

SMCRA provision against an operator and not a state, that

those sections "do not themselves create any rights and

duties." 830 F.2d at 498 (emphasis added); see also

Babbitt, 63 F.3d at 234 ("state program [contains] state

laws") (emphasis added).

SMCRA, then, is geared to the initial development of a

_________________________________________________________________

4. If a state fails to develop its own program, fails to have a submitted

program approved, or has the approval of its program withdrawn

because of ineffective enforcement, the OSM would regulate surface coal

mining and reclamation operations in the state pursuant to a federal

program promulgated and implemented by the Secretary. Id. S 1254(a).

In that event, the Secretary will have "exclusive jurisdiction" over the

regulation and control of surface coal mining in the state.

8

state program and state law is geared to the administration

and regulation under that program. In a nutshell, the

Secretary steps back and lets an approved program run.

Bragg was firm on this point: "To make this point

absolutely clear, SMCRA provides explicitly that when

States regulate, they do so exclusively, see id. S 1253(a),

and when the Secretary regulates, he does so exclusively,

see id. S 1254(a)."5Bragg, 248 F.3d at 294. The Bragg

Court went on to hold that private parties could not bring

an Ex parte Young action against state officials to compel

compliance with the surface mining regulation at issue

there because the applicable standards were supplied by

state, and not federal, law. Bragg was the first court of

appeals to do so and, indeed, the first court of appeals to

confront the issue, but more about Bragg later.

Under this arrangement, referred to as "cooperative

federalism," Hodel, 452 U.S. at 289; Bragg, 248 F.3d at

288, the Secretary retains a limited and ordered federal

oversight role to ensure that the minimum requirements of

SMCRA are being satisfied and "to assure that the old

patterns of minimal enforcement are not repeated." H.R.

Rep. No. 218, 95th Cong., 1st Sess. 129 (1977), reprinted in

1977 U.S. Code Cong. & Ad. News 593, 661. The grant of

primacy to a state, however, wholly but "conditionally

divest[s] the federal government of direct regulatory

authority." Bragg, 248 F.3d at 294 (emphasis in original). If,

however, a state fails to implement, enforce, or maintain

part or all of an approved state program, the Secretary,

among other things, can enforce any part not being

enforced and can ultimately withdraw approval of the state

program while promulgating and implementing a federal

program for that state. 30 U.S.C. SS 1254, 1271.6 In the

latter event, the "exclusive jurisdiction" over the regulation

_________________________________________________________________

5. The separate nature of state and federal programs and regulation is

seen throughout SMCRA. See, e.g., 30 U.S.C. SS 1256(a), 1257(a) (each

permit application must be made, and may only be issued, "pursuant to

an approved State program or [a] Federal program"; S 1258(a) (discussing

criteria for reclamation plan submitted "pursuant to any approved State

program or a Federal program").

6. It is the alleged failure of the Secretary and the Director of the OSM

to notify the Pennsylvania DEP of its failures with respect to the

approved Pennsylvania program and their failure to enforce that program

or replace it with a federal program that is the subject of Counts Nine,

Ten, and Eleven of the complaint. These counts, brought under the

citizens suit provisions of SMCRA against the federal officials only, are

not before us on these appeals.

9

of surface mining in the state reverts to the Secretary;

absent this withdrawal of approval, the exclusive

jurisdiction to regulate remains with the state with the

state enforcing its own laws. Because of the "independence

of a state administering an approved state program,"

"[d]irect intervention by the Secretary in the operation of

state regulatory programs is clearly intended as an

extraordinary remedy." In re: Permanent Surface Mining

Regulation Litig., 653 F.2d 514, 519 n.7, 520 (D.C. Cir.

1981) (en banc) (citation omitted). "The Secretary’s primary

means of guaranteeing effective state programs," continued

the Court, "lies in his approval function at the beginning of

the process." Id. at 520.

Indeed, this "either-or" arrangement illustrates why, as

the Bragg Court observed, the regulatory structure is not

quite cooperative federalism -- SMCRA does not provide for

shared regulation. Rather, "SMCRA provides for either State

regulation of surface coal mining within its borders or

federal regulation, but not both." Bragg, 248 F.3d at 289.

We, too, have recognized that although state and federal

governments have the potential to exercise jurisdiction over

the regulation of surface coal mining, such jurisdiction is

never shared. Haydo, 830 F.2d at 497 ("nothing in the

statute or the legislative history . . . leads us to believe that

anything other than the ordinary meaning of ‘exclusive’ was

intended by the enactors of the SMCRA").7 Exclusive, in

_________________________________________________________________

7. Plaintiffs, as well as the federal defendants, argue that on this point,

Haydo is at best distinguishable and at worst incorrect. In Haydo, we

affirmed the dismissal on jurisdictional grounds of a federal suit by

citizens against a mining operator. The citizens alleged that as a result

of coal mining on their property by that operator, a well on their property

had run dry. When the operator refused to replace their water supply,

the Haydos filed suit in federal court, alleging violations of state mining

standards issued pursuant to SMCRA, and seeking damages. Id. at 495.

The anti-Haydo argument has two prongs. The first is the suggestion

that, under 30 U.S.C. S 1260(b), it is federal law that precludes a state

regulatory authority from issuing permits that do not comply with a

state’s approved regulations, because a regulatory authority may not

approve a permit application that does not adhere to the regulations of

whichever program (state or federal) governs. This argument, however,

conflates the guidelines for the initial approval of a state program by the

10

other words, means just that -- "exclusive." It does not

mean "parallel" or "concurrent."

III.

THE PENNSYLVANIA PROGRAM --

AND PLAINTIFFS’ CHALLENGE

A. The Pennsylvania Program

Pennsylvania chose to develop its own regulatory

program, and the statutory provisions and regulations

subsequently enacted comprehensively regulate, by means

of extraordinarily detailed provisions, every aspect of

surface coal mining and the surface effects of underground

_________________________________________________________________

OSM and the subsequent awards of permits by the state under that

program on the one hand, with the "exclusive" jurisdiction that Haydo

found is expressly granted to a state once those initial criteria are met,

on the other. Most of plaintiffs’ anti-Haydo argument focuses on the

standards preliminary to the administration of the state program; the

conduct in question here, though, involves whether Pennsylvania

conformed to the criteria it developed to meet those standards.

The second prong of the anti-Haydo argument is based on the fact that

when a state fails to properly administer its program, the federal

government may take over and replace the defective state program with

federal regulation. 30 U.S.C. SS 1254, 1271. Again, however, this misses

the point. Federal law may provide the opportunity for the federal

government to correct a defective program, but the existence of that

provision does not transform the standards a state establishes as part of

that program into federal law.

We acknowledged in Haydo that suits underS 1270 may, of course, be

brought for violations of federal law. 830 F.2d at 496. Nevertheless, we

affirmed the District Court’s dismissal because the Haydos’ complaint

only alleged violations of state law, not of SMCRA itself. Parenthetically,

to the extent that Haydo was criticized by the Fourth Circuit in Molinary

v. Powell Mountain Coal Co., Inc., 125 F.3d 231, 236-37 n.5 (4th Cir.

1997), which, like Haydo, was not an Eleventh Amendment case and did

not involve a claim against a state official, subsequent case law in that

circuit, most importantly Bragg, has severely undercut the Molinary

reasoning.

11

mining. Pennsylvania’s proposed program was conditionally

approved in July 1982, and Pennsylvania was granted

"primacy" and the concomitant exclusive regulatory

jurisdiction over (and responsibility for) surface coal mining

and reclamation operations on non-federal and non-Indian

lands within its borders.8 47 Fed. Reg. 33050-80 (July 30,

1982). The Pennsylvania program is set forth in full in

exquisite detail primarily in the Pennsylvania Surface

Mining Conservation and Reclamation Act, 52 Pa. Stat.

Ann. SS 1396.1-1396.19a (Purdon 1998 & Supp. 2001),

which alone fills nearly one hundred pages of text, as well

as portions of the Clean Streams Law, Pa. Stat. Ann.

SS 691.1-691.1001 (Purdon 1993), and their accompanying

rules and regulations. 25 Pa. Code SS 86.1-86.242 and

SS 87.1-87.209. Primary authority to enforce the

Pennsylvania program is vested in the Pennsylvania DEP.

The text of the Pennsylvania program as found in

Pennsylvania’s statutes and regulations is not set forth in

30 C.F.R. S 938, that part of the federal regulations

reserved for Pennsylvania. All that is set forth is the

notification of the Secretary’s program approval, the action

taken by the Secretary on amendments proposed by

Pennsylvania, and the dates by which other amendments

were to be adopted by Pennsylvania. The regulations

nonetheless purport to "contain[ ] all rules applicable only

within Pennsylvania that have been adopted under

[SMCRA]." S 938.1. See alsoS 900.12.

An important environmental problem addressed by

SMCRA -- and by Pennsylvania -- was the reclamation of

sites after mining operations have ended. In order for a

state regulatory program to be initially approved by the

Secretary, therefore, the program must include a bonding

plan designed to ensure that money is available to reclaim,

if necessary, various mine sites, i.e., to restore the site after

the coal has been mined. 30 U.S.C. SS 1257(d), 1258; 30

C.F.R. S 800.11(e)(1). To receive a mining permit, operators

are required to submit a detailed reclamation plan for the

site in question. 30 U.S.C. SS 1257(d), 1258; 52 Pa. C.S.A.

_________________________________________________________________

8. The Secretary may grant full primacy to a state with a conditionally

approved program. 30 C.F.R. S 732.13(j).

12

S 1396.4(a)(2). Operators are also required to post a bond to

cover the costs of that plan if they default on it. 30 U.S.C.

S 1259; 52 Pa. C.S.A. S 1396.4(d).

Under SMCRA, the bonds collected by states from mining

operators must be "sufficient to assure the completion of

the reclamation plan if the work had to be performed by the

regulatory authority," i.e., the state. 30 U.S.C. S 1259(a). As

long as the federal objectives of the bonding program are

met, a state may also develop an alternative bonding

program, such as the one challenged here. 30 C.F.R.

S 800.11(e). That regulation requires that, under the

alternative program, the state regulatory authority collect

sufficient money to complete a reclamation plan for any site

which may be in default. Pennsylvania’s alternative bonding

program was conditionally approved. As part of that

program, Pennsylvania requires that before commencing

mining operations, an operator must file a bond with the

DEP.

in an amount determined by the department based

upon the total estimated cost to the Commonwealth of

completing the approved reclamation plan, or in such

other amount and form as may be established by the

department pursuant to regulations for an alternate

coal bonding program which shall achieve the

objectives and purposes of the bonding program.

52 Pa. C.S.A. S 1396.4(d). In the 1982 approval of the

Pennsylvania program, the Secretary explicitly found that

the program met SMCRA’s minimum criteria for regulating

performance bonds. 47 Fed. Reg. at 33056.

Also as part of its program, Pennsylvania implemented

guidelines detailing how the amounts of such bonds were to

be calculated. First, complying with the explicit federal

minimum, 30 U.S.C. S 1259(a), Pennsylvania determined

that no bond shall be under $10,000. 52 Pa. C.S.A.

S 1396.4(d); 25 Pa. Code S 86.150. Second, under

Pennsylvania’s bonding program, bonds are supplemented

by money from a "bond pool" that may be applied to any

defaulting site in the system. This supplemental money is

derived from a nonrefundable fee of $100 (originally $50)

per acre charged to all operators when a permit is initially

13

issued. 25 Pa. Code S 86.17(e). The Secretary initially

expressed concern "about the continuing adequacy of the

amount of the bond and permit fee required for permit

areas that is applied to bond forfeitures." 47 Fed. Reg. at

33056. The Secretary required Pennsylvania to submit its

then-ongoing bonding adequacy review study to the OSM

"and to make any adjustments as necessary to cover

reclamation costs." Id. at 33057. Again, however,

Pennsylvania’s program was conditionally approved.

By 1991, Pennsylvania had been notified at least twice by

the OSM of that Office’s concerns regarding the alternative

bonding program. See 56 Fed. Reg. 24687, 24690 (May 31,

1991). Pennsylvania proposed to amend the relevant

provision, 25 Pa. Code S 86.17(e), to, inter alia, increase the

acreage fee from $50 to $100. 56 Fed. Reg. at 24689.

Although this amendment did not alleviate all of the OSM’s

concerns, the amendment was conditionally approved upon

Pennsylvania’s representation that it was taking steps to

remedy any existing deficits. Id. at 24690. More specifically,

the approval was conditioned on Pennsylvania’s

demonstration that the bond money, together with the

acreage fees, would meet the requirements of 30 C.F.R.

800.11(e) to (1) have available sufficient money to complete

the reclamation plan for any areas that might be in default

and (2) provide a substantial economic incentive for mine

operators to comply with all reclamation provisions. See 56

Fed. Reg. at 24690. Subsequently, this increase in acreage

fee was approved as an "intermediate step to keep the

shortage in the [bond] Fund from further deteriorating." 58

Fed. Reg. 36139, 36140 (July 6, 1993). The $100 fee,

collected in addition to the bonds posted under 25 Pa. Code

SS 86.145, .149, and .150, remains in force today. See 25

Pa. Code S 86.17(e). Technically, then, the bond

requirements of the Pennsylvania program -- $10,000 plus

the additional $100 per acre -- exceed the federal

minimum.

Finally, as part of the alternative bonding program, the

Pennsylvania DEP is responsible for establishing rate

guidelines and the method for determining the amounts of

reclamation bonds above the $10,000 and $100 per acre

floor. 25 Pa. Code S 86.145. Those guidelines are set forth

14

in 52 Pa. C.S.A. S 1396.4(d), which requires that

consideration be given to very specific factors as well as

other "criteria as may be relevant."9 A longer list appears in

S 86.149 of the Pennsylvania Code.10 Moreover, again

_________________________________________________________________

9. Section 1396.4(d) reads in part as follows:

Said estimate shall be based upon the permittee’s statement of his

estimated cost of fulfilling the plan during the course of his

operation, inspection of the application and other documents

submitted, inspection of the land area, and such other criteria as

may be relevant, including, but not limited to, the probable difficulty

of reclamation giving consideration to such factors as topography,

geology of the site, hydrology, the proposed land use and the

additional cost to the Commonwealth which may be entailed by

being required to bring personnel and equipment to the site after

abandonment by the permittee, in excess of the cost to the permittee

of performing the necessary work during the course of his surface

mining operations.

52 Pa. Stat. Ann. S 1396.4(d).

10. Section 86.149 reads as follows:

S 86.149. Determination of bond amount.

(a) The standard applied by the Department in determining the

amount of bond will be the estimated cost to the Department if it

had to complete the reclamation, restoration and abatement work

required under the acts, regulations thereunder and the conditions

of the permit. The Department may establish bonding rate

guidelines which utilize the factors in S 86.145(c) (relating to

Department responsibilities).

(b) This amount will be based on, but not limited to, the following:

(1) The estimated costs submitted by the permittee in accordance

with S 87.68, S 88.96, S 88.492,S 89.71 or S 90.33.

(2) Reclamation costs for surface mines related to the specific size

and geometry of the proposed mining operation, the topography

and geology of the permit area, the potential for water pollution or

hydrologic disturbances, the availability of topsoil and the

proposed land use.

(3) The costs related to distinct differences in mining methods and

reclamation standards for bituminous surface mines, anthracite

surface mines and underground mines.

(4) The cost of relocating or reconstructing roads or streams

within the permit area.

15

conforming with federal law,11 the DEP may increase the

required bond amount "should such an increase be

determined by the department to be necessary to meet the

requirements of this act." 52 Pa. C.S.A. S 1396.4(d).

B. Plaintiffs’ Challenge

Plaintiffs’ primary argument is that the Pennsylvania

program, with its extensive and detailed standards geared

specifically to Pennsylvania, has been incorporated into

SMCRA because it has been "codified" in the C.F.R. and

this "codification" renders issues concerning the

_________________________________________________________________

(5) The cost of sealing shafts or other mine openings, removal of

buildings, facilities or other equipment, constructing, operating

and maintaining treatment facilities and correcting surface

subsidence.

(6) The additional estimated costs to the Department which may

arise from applicable public contracting requirements or the need

to bring personnel and equipment to the permit area after its

abandonment by the permittee to perform reclamation, restoration

and abatement work.

(7) The amount of fees, fines or other payments made to the

Department and dedicated by the Department for reclamation,

restoration and abatement of defaulted permit areas.

(8) Additional estimated costs necessary, expedient and incident

to the satisfactory completion of the requirements of the acts,

regulations thereunder and the conditions of the permit.

(9) An additional amount based on factors of cost changes during

the preceding 5 years for the types of activities associated with the

reclamation to be performed.

(10) Other cost information as required from the permittee or

otherwise available to the Department.

25 Pa. Code S 86.149.

11. "The amount of the bond or deposit required and the terms of each

acceptance of the applicant’s bond shall be adjusted by the regulatory

authority from time to time as affected land acreages are increased or

decreased or where the cost of future reclamation changes." 30 U.S.C.

S 1259(e).

16

Pennsylvania program issues of federal, not state, law.

Thus, the argument goes, even though specific violations of

the Pennsylvania program are pinpointed in most of the

counts at issue here, it is violations of federal law plaintiffs

are alleging in all of the counts, and the Ex parte Young

exception to Eleventh Amendment immunity, therefore,

poses no bar. Plaintiffs’ alternative argument is that even if

state law standards are not incorporated into federal law,

the state official -- Seif -- nevertheless has a federal

statutory duty to implement those standards, a duty he is

not fulfilling.

The eight counts before us on these appeals allege the

following:

Count One: Seif failed to maintain a reclamation

bonding system that has sufficient funds available to

assure the Pennsylvania DEP’s prompt completion of

the reclamation plan for any defaulting mine site and

failed to provide a substantial economic incentive for

the operator to comply with the reclamation provisions

rather than default;

Count Two: Seif failed to (a) establish bonding

amount rate guidelines that are based on the factors

specified in the approved Pennsylvania program and (b)

complete annually a review of Pennsylvania’s bonding

rate guidelines and revise those guidelines, if

necessary, to reflect the current cost of reclamation;

Count Three: Seif failed to raise the bond amount for

a particular mine site when the cost of future

reclamation increases, including circumstances in

which a post-mining discharge develops that an

operator is responsible to treat;

Count Four: Seif used a treatment period of only 50

years in determining the adequacy of bonds for coal

mine sites with discharges;

Count Five: Seif used an across-the-board figure of

only $10,000 for repair and reclamation of the surface

effects of subsidence when calculating bond amounts

for underground coal mines and DEP has not

promulgated any regulation or any document under

17

which operators would be required to post bonds in

amounts that are based on factors identified in the

Pennsylvania Act and regulations;

Count Six: Seif used the "capital replacement cost"

method to determine the mine drainage treatment

component when calculating bond amounts for

underground coal mines and failed to consider all costs

of treating potential discharges of mine drainage when

calculating, adjusting, or releasing the amount of

bonds for certain underground coal mines;

Count Seven: Seif failed to timely submit to OSM

information showing that the revenue derived from

Pennsylvania’s reclamation fee is adequate to assure

that Pennsylvania’s alternative bonding system can be

operated to meet federal and state requirements, and

failed to timely submit to OSM a clarification of the

procedures for bonding the surface impacts of

underground mines and the reclamation of

underground mining permits where the operator has

defaulted, both requirements of 30 C.F.R. S 938.16(h);

and

Count Eight: Seif failed to submit to OSM, as

required by 30 C.F.R. S 732.17, an amendment to the

Pennsylvania program that provides additional or

alternate financial guarantees for the long term

treatment of mine drainage upon notification from OSM

that such an amendment was necessary.

The thrust of these eight counts is Seif ’s purported

failure to perform various nondiscretionary duties vis-a-vis

Pennsylvania’s reclamation bonding program for surface

coal mining in the state. The salient aspects of that

program, discussed above, bring into focus the central

issue before us on these appeals, i.e., whether the District

Court correctly determined, as to each of the various

counts of the complaint, that the law allegedly being

violated by Seif, and to which plaintiffs seek that he

conform his conduct, is federal law or state law. While, we

warn, the question is inordinately easier to ask than to

answer -- at least as to certain counts of the complaint --

the answer will, virtually without more, enable us to

18

determine whether Seif may or may not properly invoke

Eleventh Amendment immunity.

The Supreme Court of the United States, and we, have

recently reviewed Eleventh Amendment jurisprudence and

we see no reason to reprise that review. See Federal

Maritime Comm. v. South Carolina State Ports Authority, 122

S. Ct. 1864, 1870-71 (2002); MCI Telecomm. Corp. v. Bell

Atlantic-Pa., 271 F.3d 491, 503-08 (3d Cir. 2001). Suffice it

to say, the Eleventh Amendment -- "The Judicial power of

the United States shall not . . . extend to any suit. . .

commenced or prosecuted against one of the . . . States by

Citizens of another State" -- has been interpreted to render

states -- and, by extension, state agencies and departments

and officials when the state is the real party in interest --

generally immune from suit by private parties in federal

court. Indeed, it has been recognized for over two hundred

years that a state’s immunity from suit in federal court is

a fundamental principle of our constitutional structure that

preserves, as intended by the Framers, the respect and

dignity of the states and protects the ability of the states "to

govern in accordance with the will of their citizens." Alden

v. Maine, 527 U.S. 706, 751 (1999).

Eleventh Amendment immunity is, however, subject to

three primary exceptions: (1) congressional abrogation, (2)

waiver by the state, and (3) suits against individual state

officers for prospective injunctive and declaratory relief to

end an ongoing violation of federal law. MCI, 271 F.3d at

503. The third exception, the sole exception invoked here,

is the doctrine of Ex parte Young, 209 U.S. 123 (1908). As

we explained,

The theory behind Young is that a suit to halt the

enforcement of a state law in conflict with the federal

constitution is an action against the individual officer

charged with that enforcement and ceases to be an

action against the state to which sovereign immunity

extends; the officer is stripped of his official or

representative character and becomes subject to the

consequences of his individual conduct. See Young 209

U.S. at 159-60, 28 S.Ct. 441; see also Pennhurst State

Sch. and Hosp. v. Halderman, 465 U.S. 89, 103, 104

S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II ) (stating

19

that, under the theory of Young, an action for

prospective relief against the state officer was not an

action against the state because the allegation of a

violation of federal law would strip the officer of his

official authority). The relief sought must be

prospective, declaratory, or injunctive relief governing

an officer’s future conduct and cannot be retrospective,

such as money damages. See Pennhurst II, 465 U.S. at

102-03, 104 S.Ct. 900.

The Young doctrine is accepted as necessary to

permit federal courts to vindicate federal rights and to

hold state officials responsible to the "supreme

authority of the United States." See id. at 105, 104

S.Ct. 900. The doctrine applies both to violations of the

United States Constitution and to violation of federal

statutes. See Balgowan v. New Jersey, 115 F.3d 214,

218 (3d Cir. 1997) (holding that suit for declaratory

relief against state officer under Fair Labor Standards

Act is permissible under Young); see also Allegheny

County Sanitary Auth. v. U.S.E.P.A., 732 F.2d 1167,

1174 (3d Cir. 1984). However, Young does not apply if,

although the action is nominally against individual

officers, the state is the real, substantial party in

interest and the suit in fact is against the state. See

Pennhurst II, 465 U.S. at 101, 104 S.Ct. 900.

Id. at 506.12

In determining whether the Ex parte Young doctrine

avoids an Eleventh Amendment bar, the Supreme Court

has made it quite clear that "a court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges

an ongoing violation of federal law and seeks relief properly

characterized as prospective." Verizon Maryland, Inc. v.

Public Service Commission of Maryland, 122 S. Ct. 1753,

_________________________________________________________________

12. We concluded in MCI that neither of the two recognized exceptions to

Young, i.e., those of Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261

(1997), and Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996),

barred that action. Given our conclusion that it is state law implicated

in Counts One through Six and that, therefore, the Ex parte Young

exception does not apply, we need not discuss the exceptions to that

exception.

20

1760 (2002), quoting Coeur d’Alene, 521 U.S. at 296

(O’Connor, J., concurring in part and concurring in the

judgment). While the relief sought here is "prospective," the

question we must answer is whether the ongoing violations

alleged are of federal or state law.13 It bears repetition that

state law and the implementing state regulations are the

means of effectuating the purposes of SMCRA. Because

Pennsylvania is a primacy state, the OSM has relinquished

its regulatory authority and regulation is a matter of state

law. Thus, a court must initially look to state law,

especially where there is an element of state program that

mirrors and is thus clearly intended to conform to and/or

implement the federal objective. Unless an element of an

approved state program is inconsistent with -- i.e., less

stringent than -- the federal objective it implements, the

state law or regulation is intended to control, rather than

the federal provision. This was Congress’s intent when it

ceded "exclusive jurisdiction" over surface mining

regulation in primacy states.

1. Counts One Through Six

As our recitation of Counts One through Six should

indicate, those counts challenge the administration or

implementation of Pennsylvania’s approved alternative

bonding program. This was so clear as to Counts Two and

Five that plaintiffs did not seek reconsideration of the

District Court’s dismissal of those two counts. Similarly, as

to Counts Four and Six, it is Pennsylvania, not SMCRA,

which, respectively, creates the treatment period of fifty

years in determining the adequacy of bonds and creates the

capital replacement cost method used by Seif for bond

calculations. Indeed, no provision of SMCRA or the federal

regulations is even cited in Counts Two, Four, Five, and

Six, except by boilerplate incorporation by reference. As the

District Court put it, "[t]o allow a federal court to second-

_________________________________________________________________

13. We note in passing that S 1270(a)(2) of SMCRA applies only to acts

or duties which are "not discretionary." While it is far from clear that the

acts and duties at issue in Counts One through Six are "not

discretionary," that alternative reason for the potential dismissal of those

counts is not before us on these interlocutory appeals.

21

guess certain detailed aspects of a state program infringes

upon state sovereignty," and it is inappropriate"to question

a certain discretionary aspect of the state program which

was given primacy by the OSM, and to direct the state on

what method to use to conduct its calculations." A.32, 33.

The District Court correctly determined that, at least as to

Counts Two, Four, Five, and Six, this case fell outside the

Ex parte Young exception and that Seif enjoyed immunity.

Simply put, the Eleventh Amendment prohibits a federal

court from considering a claim that a state official violated

state law in carrying out his or her official responsibilities.

Pennhurst State School and Hospital v. Halderman, 465

U.S. 89 (1984).

[I]t is difficult to think of a greater intrusion on state

sovereignty than when a federal court instructs state

officials on how to conform their conduct to state law.

Such a result conflicts directly with the principles of

federalism that underlie the Eleventh Amendment. We

conclude that [Ex parte] Young and Edelman [v. Jordan]

are inapplicable in a suit against state officials on the

basis of state law.

Id. at 106.

The District Court, however, wrongly came to the

opposite conclusion when it refused to dismiss Counts One

and Three, based on its finding that those counts stated

violations of SMCRA, i.e., federal law. These counts do, at

least nominally, allege violations of SMCRA -- and, we note,

also allege specific violations of the "approved Pennsylvania

program." But saying that certain conduct is a violation of

SMCRA does not make it so as a matter of law. Rather, the

appropriate inquiry for Ex parte Young purposes is whether

a court is being asked to enforce state law or federal law as

against an individual state officer. See MCI, 271 F.3d at

507.

The only reference to SMCRA in Count One is a citation

to S 1259(a) and (c), which simply set forth the

requirements for the performance bond or bonds which are

to be filed with the state regulatory authority and states

that the Secretary can approve an alternative bonding

system. The language of Count One does track a federal

22

regulation, 30 C.F.R. S 800.11(e), but S 800.11(e) merely

sets the criteria that guide the OSM when, in its discretion,

it determines whether to approve an alternative bonding

system that a state proposes. As outlined above, those

criteria were met, and Pennsylvania’s alternative system

was conditionally approved. As such, jurisdiction for its

administration and enforcement devolved on the state.

Whether, in practice, the Pennsylvania program

subsequently meets the minimum standards set forth in

SMCRA is a matter for the federal oversight body-- the

OSM -- and not for the federal courts. With authority

vested in the state, the approved state program developed

pursuant to that authority is what governs surface coal

mining operations. The administration and functioning of

the state bonding program is thus a matter of state law,

and as such prospective relief vis-a-vis that program as

against Seif is barred in federal court by the Eleventh

Amendment.

The same is true for Count Three, which clearly

articulates a closer connection to state provisions than to

federal provisions, as evidenced by the example given of a

post-mining discharge at a particular mine site.

Pennsylvania’s bonding program provides detailed

guidelines for addressing such discharges. See 52 Pa.

C.S.A. S 1396.4(d.2),(g.2),(g.3). SMCRA nowhere discusses

them. More generally, however, given the bonding

framework established under the state’s regulatory

program, the explicit guidelines for determining bond

amounts developed under that framework, and the

language of 52 Pa. C.S.A. S 1396.4(d) authorizing increases

when necessary (a statute at least as stringent as its federal

counterpart), it is clear that Count Three challenges, and

seeks relief under, state, rather than federal, law. It is thus

barred in federal court by the Eleventh Amendment.

Indeed, any assertion that it is federal law that precludes a

state from setting a bond amount that does not comply

with state law and, thus, that a district court has

jurisdiction to review the state determination as to each

particular mine site, is simply beyond the pale.

What should be obvious by now is that, at least

implicitly, we have rejected plaintiffs’ theory that the

23

Pennsylvania program, with its Pennsylvania-specific

standards, has been incorporated or "codified" into federal

law. We now do so explicitly.

Plaintiffs point to the language of 30 C.F.R. S 900.11 and

S 900.12(a) by which, under S 900.11, a state program

establishing surface mining standards "applicable within

each State is codified in the part [of the C.F.R. reserved] for

that State" and, under S 900.12(a), on approval of a state

program "the Secretary will publish a final rule to be

codified under the applicable part number assigned to the

State." They argue that this language explicitly incorporates

the state standards into federal law. Indeed, they suggest

that this incorporation is even more explicit than that at

issue in Arkansas v. Oklahoma, 503 U.S. 91 (1992) where

all applicable state standards for water quality were found

to be effectively incorporated into the Clean Water Act. We

disagree.

First, nothing in SMCRA itself explicitly or implicitly

incorporates state law as federal law or directs the OSM to

do so. Second, it bears repetition that Part 938 of the

C.F.R. reserved for Pennsylvania does not set forth any

portion of the text, much less the complete text, of the

Pennsylvania statutes and regulations approved by the

OSM. Rather, the reader is referred to the office locations in

the state of Pennsylvania at which copies of those statutes

and regulations can be obtained, and merely identifies the

dates the Pennsylvania program was approved, the action

taken by the Secretary on amendments proposed by

Pennsylvania to its program, and the dates by which

Pennsylvania must adopt additional amendments

recommended by the Secretary. The federal surface mining

regulations, in stark contrast, are "codified" in their full text

at 30 C.F.R. Part 772-85. Third, simply referring to a state

statute or regulation in the Code of Federal Regulations

does not invest it with federal authority, even if the OSM

had the authority under the Constitution or under SMCRA

to transform state law into federal law, which it does not.

Plaintiffs, however, invoke the language of the C.F.R.

sections applicable to Pennsylvania and, more particularly,

30 C.F.R. S 938.1, which states that the succeeding

sections contain those rules "applicable only within

24

Pennsylvania that have been adopted under the [SMCRA]."

Despite plaintiffs’ suggestion, the "adopted under" clause

cannot imbue a regulation enacted by a Pennsylvania

agency, and only applicable within Pennsylvania , with

federal authority. This conclusion is supported by the fact

that throughout the federal regulations, approved state

programs are described not as federal law but as"state

laws and regulations"; further, the federal regulations

establish different mechanisms for state and federal

programs.

Moreover, the state-specific nature of mining standards

illustrates why Arkansas v. Oklahoma is inapposite. As that

case noted, the Clean Water Act was intended to establish

a "uniform system of interstate water pollution regulation"

in which the federal role was integral; indeed, the interstate

flow of water federalized the issue. 503 U.S. at 110

(emphasis added). Although SMCRA was intended to

establish a "nationwide" program of minimum standards for

protecting health, safety, and the environment, 30 U.S.C.

S 1202(a), Congress also explicitly found that mined areas

across the nation had such a range of environmental and

"physical conditions" that the "primary governmental

responsibility" for developing and regulating each state’s

program should rest with that state, with the federal role

restricted to limited oversight and enforcement only if the

state did not do so. S 1201(f). Indeed, the laws in the

various states differ because the terrains and environments

of the various states differ; if, then, any violation of state

law were a violation of federal law, there would be different

federal law in every primacy state. Finally, there is no

"explicit incorporation" of each state’s standards even into

the separate C.F.R. subchapters devoted to each state’s

program, nor do the federal regulations evidence the

"intent" to incorporate state standards with which plaintiffs

credit them. Nor, of course, could they incorporate state

standards, for if Congress could empower the OSM to

incorporate state law into federal law by agency action via

the OSM’s regulations such that states could be sued by

citizens in federal court, the limitations on Congress’s

authority to override the Eleventh Amendment by means of

legislation would be rendered a virtual nullity.

25

Plaintiffs also rely heavily on our decision in Geis v.

Board of Educ. of Parsippany-Troy Hills, 774 F.2d 575 (3d

Cir. 1985), where we found that the Individuals with

Disabilities Education Act ("IDEA"), formerly known as the

Education of the Handicapped Act, explicitly incorporated

New Jersey educational standards. To be sure, in both the

IDEA and SMCRA "the states are given considerable

latitude in establishing the applicable standards, subject to

a floor mandated by federal law." Id. at 581. But there are

important differences between the two statutes. First, as we

have discussed, the incorporation of state standards is not

explicit in SMCRA. Second, in the IDEA the federal

government "retains considerable authority" to enforce the

applicable state standards, id., whereas in SMCRA federal

enforcement authority is in large measure restricted to

situations where imminent danger to the public or

imminent environmental harm is threatened or where the

state has defaulted in enforcing its program -- SMCRA, in

other words, emphasizes the mutually "exclusive"

jurisdiction to regulate by either the particular state or the

federal government. Third, in the IDEA, which, unlike

SMCRA, is a true cooperative federalism statute, Congress

granted state and federal courts concurrent jurisdiction to

adjudicate disputes. In sum, then, SMCRA indicates a clear

distinction between state and federal law for regulatory

purposes, for the enforcement of violations, and for

purposes of the Eleventh Amendment. The IDEA does not.

Separate and apart from the reasons why Pennsylvania’s

program was not incorporated or codified into federal law,

it would have made little sense to have done so. The federal

standards set forth in SMCRA are simply ones which a

state must meet initially for its proposed program to qualify

for "exclusive jurisdiction" over the regulation of surface

mining within that state. When a state then enacts laws

that outline its duties in regulating such mining, it is those

state laws that become "directly applicable"; the federal law

and regulations, which continue "to provide the‘blueprint’

against which to evaluate the State’s program, ‘drop out’ as

operative provisions," "even though the relevant language in

the State law is identical to that in the federal law." Bragg,

248 F.3d at 289, 296. Of course, if a state does not fulfill

the duties outlined by those state laws, then either the

26

United States (in the person of the Secretary), the state, or

injured citizens may step in to ensure compliance. The

Secretary may step in to withdraw approval of the state’s

ineffective program or a part thereof and to enforce, in

federal court, federal provisions and sanctions for violations

of the minimum standards set forth in SMCRA. 30 U.S.C.

SS 1254, 1271. The state shall, upon notice from any

person, conduct an inspection of the alleged violation. 52

Pa. Stat. Ann. SS 1396.18c(b), 1406.13(c). And injured

citizens, as they have done here, may file suit to enforce the

provisions and standards delineated under state law, and

Pennsylvania has consented to be sued in state court. 52

Pa. Stat. Ann. SS 1396.18c(a), 1406.13. Suit for violations of

state law brought against a state or its officials, however,

may simply not be brought in federal court.

The absence of incorporation also illustrates why, as we

discussed earlier, the arrangement is not true cooperative

federalism. As the Bragg Court put it, SMCRA, unlike other

"cooperative federalism" statutes, exhibits"extraordinary"

and, indeed, "unparalleled" deference to the states, and a

"careful and deliberate" encouragement of"exclusive" state

regulation. Id. at 293, 294. In turn, this lack of true

cooperative federalism and mutual jurisdiction defeats one

of plaintiffs’ criticisms of Bragg. They argue that Bragg

wrongfully held that the federal government is divested of

"direct regulatory authority" under the Interior Board of

Land Appeals’14 holdings. In particular, they rely on Central

Ohio Coal Co. v. OSMRE, 140 IBLA 1, 6 (July 31, 1997),

which holds that "while a primacy state has primary

jurisdiction for enforcement of an approved state program,

that jurisdiction is not exclusive, and OSM has the

authority to enforce the state program on a mine-by-mine

basis under proper circumstances." While at least the latter

point is correct, it is clear from Central Ohio that the OSM’s

jurisdiction does not reach the full enforcement authority

for which plaintiffs hope. The oversight jurisdiction there

was the authority vested in the OSM to inspect specific

_________________________________________________________________

14. The Interior Board of Land Appeals is part of the Secretary of the

Interior’s Office. It hears, among other matters, appeals from "decisions

rendered by Departmental officials relating to . . . the conduct of surface

coal mining under the [SMCRA]." 43 C.F.R.S 4.1(b)(3).

27

mines, and, if violations were observed, to issue violation

notices. See 30 C.F.R. S 843.12(a)(2). Importantly, such

notice is given to both the permittee and to the state, "so

that appropriate action can be taken by the State." Id.

(emphasis added). Because the state has "primary"

authority, only if the state fails to act within ten days is

further action taken by the OSM, either by issuing another

violation notice or a cessation order. This deference to the

state’s authority clearly indicates that enforcement by the

federal government is a last resort; jurisdiction is hardly

shared.15 Indeed, as the Hodel Court observed, SMCRA

contemplated "enforcement responsibility lying with either

the State or Federal Government." Hodel, 452 U.S. at 269.

According to Bragg, to construe SMCRA otherwise

would circumvent the carefully designed balance that

Congress established between the federal government

and the States because the effect of a citizen suit to

enjoin officials in a primacy State to comport with the

federal provisions establishing the core standards for

surface coal mining would end the exclusive State

regulation and undermine the federalism established

by the Act. Thus, rather than advancing the federal

interest in preserving this statutory design, [plaintiffs’]

interpretation would frustrate it.

248 F.3d at 295 (emphasis in original). This is so because,

again, if a state fails to properly administer the provisions

and the OSM has done nothing or too little, citizens can

sue in state court to enforce the state law standards.16 52

_________________________________________________________________

15. 30 C.F.R. S 843.11 is even stronger, allowing the OSM to order the

cessation of surface mining activity when--consistent with SMCRA’s

balancing of societal and economic interests--there is imminent danger

to health or to the environment. Id. S (a)(1). Again, this reluctance to

interfere absent "imminent danger" suggests a deference to state

enforcement and an intent to allow federal enforcement only as a last

resort. The provisions of 30 U.S.C. S 1271, allowing the revocation of a

deficient state program, are similarly to be applied after notice to the

state or when there is imminent danger.

16. This is not to adopt the controversial suggestion in Justice Kennedy’s

Coeur d’Alene opinion that the availability of a state forum to hear a

dispute should, virtually without more, bar application of the Ex parte

28

Pa. Stat. Ann. SS 1396.18c(a), 1406.13. They can also bring

suit against the Secretary of the Department of the Interior

and the Director of the OSM under 30 U.S.C. S 1270 as, of

course, they have done here in Counts Nine through

Eleven.

Plaintiffs’ fall-back position is that even if state law is not

incorporated into federal law, Seif has a federally imposed

duty to implement specific state provisions that triggers the

Ex parte Young exception; in essence, this was the question

certified by the District Court. That duty is purportedly

based on 30 C.F.R. S 733.11, which does no more than

require Pennsylvania to implement, administer, and enforce

its program in accordance with SMCRA, "this chapter," and

the provisions of the Pennsylvania program. The District

Court did not credit this "federal duty" argument, observing

that to allow a federal court to sit in judgment of a state

concerning the state’s duty to satisfy its own regulations

contradicts the spirit of the Eleventh Amendment and the

Ex parte Young doctrine. Indeed, it seems, if there is such

a "federal duty," the Eleventh Amendment would become an

irrelevancy.

In support of their "federal duty" argument, plaintiffs

point to Barnes v. Cohen, 749 F.2d 1009 (3d Cir. 1984),

where we rejected a Pennhurst argument in the context of

Pennsylvania’s administration of the Aid for Families with

Dependent Children ("AFDC") program. That program

involved state payments to needy families that were

matched with federal funds. In order to qualify for the

_________________________________________________________________

Young doctrine. 521 U.S. at 270-74. That suggestion has been rejected

by all but one other Member of the Court, the Chief Justice.

Nevertheless, the opportunity to redress violations in state court

emphasizes the primary jurisdiction enjoyed by Pennsylvania.

Parenthetically, it appears that both the Bragg Court and the District

Court did adopt the conclusion, again joined in only by Justice Kennedy

and the Chief Justice, that a federal court, in determining whether to

exercise jurisdiction over a state official, must engage in a case-by-case

analysis of a number of concerns, including whether a state forum is

available. That error, however, did not affect the principal basis of the

Bragg and District Courts’ holdings, i.e. the plain language of SMCRA

and the Supreme Court’s Pennhurst decision.

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matching funds program, states were required to set

criteria to determine a minimum income that would qualify

a family for funds, and to determine a payment level of how

much the state would actually pay. States were given"a

great deal of discretion" under the AFDC as to both sets of

criteria. Everett v. Schramm, 772 F.2d 1114, 1115 (3d Cir.

1985) (citation omitted). Plaintiffs brought suit alleging

violations of the standards Pennsylvania had established,

and we concluded that injunctive relief against the state

official was not precluded by the Eleventh Amendment. We

noted the "intensely federal nature of the AFDC program"

as well as its requirement that state plans " ‘be in effect in

all political subdivisions of the State, and, if administered

by them, be mandatory upon them.’ 42 U.S.C. S 602(a)(1)."

Barnes, 749 F.2d 1019 & n.8. In brief, plaintiffs here urge

that we interpret SMCRA as, in Barnes, we interpreted the

AFDC, finding that it

[requires] the state to adhere to its own regulations, at

least so long as the regulations are still in effect. . . .

[In acting inconsistently] with the state regulation[, t]he

Pennsylvania officials, then, were not adhering to their

own regulations and, consequently, violated the state

. . . plan, thereby transgressing federal law. Thus, the

Pennhurst case is inapplicable and injunctive relief

against the state officials is not precluded.

Id. at 1019 (emphasis in original) (footnotes omitted).

Everett came to a similar conclusion, allowing a Section

1983 suit to go forward. 772 F.2d at 1118-19.

Barnes is simply inapplicable. First, of course, Barnes

addressed the incorporation of the state criteria into the

federal AFDC statute, and not any federal regulation that

might impose or purport to impose an ongoing federal duty.

We have explained above why the incorporation argument

must be rejected in the SMCRA context. Relatedly-- a

point that we have also made above -- the interplay of

federal and state governments in SMCRA is more limited

than in other "cooperative federalism" statutes such as the

Clean Water Act, the IDEA, or the "intensely federal" AFDC

at issue in Barnes and Everett. The federal agencies

administering those statutes, for example, at no point "drop

out" of that administration as the OSM does under SMCRA.

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The language and structure of the AFDC mandated the

result in Barnes and the language and structure of the

IDEA mandated the result in Geis; similarly, the unique

language and structure of SMCRA mandate a different

result here.

Further, the federal duty argument makes as little sense

as the incorporation or codification argument, for many of

the same reasons. State standards with reference to surface

coal mining operations are specifically crafted to a specific

state’s conditions and may, and frequently do, exceed

federal minima in stringency. Where they do, a scenario

can easily be envisioned in which state standards are not

being met but the minimum standards established by

federal law are (assuming, of course, that federal standards

were operative after approval of a state program, which, as

we have discussed, they are not). Under plaintiffs’ theory, a

federal duty to enforce state standards would exist even

though no standard established by federal law was being

violated. It simply stretches 30 C.F.R. S 733.11 too far to

say that it imposes a duty under federal law to implement

state law. Once primacy was granted, Seif ’s"duty" to

implement the Pennsylvania program on a day-to-day basis

arose under state law. We thus answer with a resounding

"yes" the certified question which asked whether Seif was

"entitled to Eleventh Amendment immunity from suit in

federal court as to allegations of continuing violations of

duties under the [approved] Pennsylvania program. . . ."

2. The Remaining Counts

Having determined that Counts One through Six against

Seif in federal court are not authorized by the Ex parte

Young exception to the Eleventh Amendment, all that

remains for our consideration is whether the District Court

correctly determined that Counts Seven and Eight allege

violations of federal law only and, thus, are not barred by

the Eleventh Amendment. The District Court was correct.

Count Seven, we repeat, charges Seif with failing to

submit to the OSM certain information required by 30

C.F.R. S 938.16(h). Count Eight charges his failure to

submit to the OSM a certain amendment to the

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Pennsylvania program that he was required by 30 C.F.R.

S 732.17(f)(1) to submit. These counts, in essence, allege

that Pennsylvania, via Seif, has not complied with certain

specific and ongoing federal oversight requirements,

requirements that have no counterpart in state law.

Accordingly, these counts may go forward against Seif

under the Ex parte Young exception to the Eleventh

Amendment, because plaintiffs seek prospective relief

against him for an ongoing violation of a nondiscretionary

duty directly imposed by federal law. Parenthetically, this

conclusion gives the lie to the federal defendants’

suggestion that the language of S 1270(a)(2), allowing a

citizens suit in federal court against a state regulatory

authority "to the extent permitted by the eleventh

amendment," makes no sense if there could never be a

violation of federal law once a state program is approved.

Indeed, Seif conceded at oral argument that a citizens suit

could have been brought in 1982 had any "citizen" believed

that primacy had been improperly granted to Pennsylvania.

In anticipation of the conclusion that Counts Seven and

Eight fall within the Ex parte Young exception, a conclusion

with which he did not take issue at oral argument before

us, Seif contends that the Seminole Tribe exception to that

exception should apply because of the "detailed remedial

scheme" purportedly developed in SMCRA. Seminole Tribe

of Florida v. Florida, 517 U.S. 44 (1996). Under Seminole

Tribe, if Congress establishes a "detailed remedial scheme

for the enforcement against a State of a statutorily created

right, a court should hesitate before casting aside those

limitations and permitting an action against a state officer

based upon Ex parte Young." Id. at 74.

The remedial scheme question has not been addressed in

the context of SMCRA. In Bragg, the only other Court of

Appeals’ analysis of the Eleventh Amendment issues raised

here, the Fourth Circuit explicitly declined to do so. 248

F.3d at 290 n.3. Briefly, the question is whether the scope

of the statutory remedy Congress established displaces the

"default option" of an Ex parte Young suit. Where Congress

explicitly outlines a detailed remedial scheme for a

statutory violation, the Seminole Tribe Court cautioned

hesitation before "casting aside those limitations" and

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permitting an action based on Ex parte Young. Seminole

Tribe, 517 U.S. at 74, 76. This caution essentially defers to

Congress’s authority to define remedies for rights it has

defined.

As the District Court pointed out, however, SMCRA does

not contain a detailed remedial scheme such that a federal

court’s ability to hear the case would be suspended.

SMCRA merely provides for the OSM to take over regulatory

authority upon the failure in whole or in part of a state

program. Although both the District Court and Seif focus

on the "invasive" nature of this "remedy," more to the point

is that there is no clear expression by Congress of what

remedies should apply when a SMCRA violation is found

other than (a) a takeover by the OSM in whole or in part,

or (b) suit in federal court. Neither is there any indication

by Congress of an intent to limit remedies. It must be

remembered that suit in federal court is explicitly allowed

"to the extent allowed by the eleventh amendment,"

S 1270(a)(2), which further suggests that Ex parte Young

suits were intended to go forward where appropriate.

Accordingly, the District Court correctly concluded that the

Seminole Tribe remedial scheme doctrine does not preclude

an Ex parte Young suit under SMCRA.

One final note. These are interlocutory appeals in which

the ultimate question is whether Seif was or was not

properly accorded Eleventh Amendment immunity. Seif

suggested at oral argument that there are other reasons

why Counts Seven and Eight should be dismissed -- for

example, that what plaintiffs allege in those counts is an

ongoing "administrative process" between the OSM and the

DEP that, in plaintiffs’ view, is moving too slowly but, Seif

says, is not something that Congress intended a citizens

suit to address. Any "other reasons" Seif may have for

seeking the dismissal of Counts Seven and Eight are not for

us to consider on these appeals and must await

consideration by another court on another day.

IV.

CONCLUSION

We, therefore, will affirm the orders of the District Court

insofar as they dismissed Counts Two, Four, Five, and Six

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and declined to dismiss Counts Seven and Eight. We

reverse those orders insofar as they denied Seif ’s motion to

dismiss Counts One and Three, and remand with

instructions to dismiss those counts without prejudice so

that plaintiffs may present them and Counts Two, Four,

Five, and Six in the appropriate forum. Each party to these

appeals to bear its own costs.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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