# National Wildlife Federation v. Manuel Lujan, Jr., National Coal Association and American Mining Congress, (Two Cases)

> Court of Appeals for the D.C. Circuit · March 22, 1991 · 928 F.2d 453

URL: https://www.frixlaw.com/law-library/cases/9481450

## Case

- **Full name:** NATIONAL WILDLIFE FEDERATION, Et Al., Appellees, v. Manuel LUJAN, Jr., Et Al., National Coal Association and American Mining Congress, Appellants. (Two Cases)
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 22, 1991
- **Citations:** 928 F.2d 453; 289 U.S. App. D.C. 41; 117 Oil & Gas Rep. 555; 21 Envtl. L. Rep. (Envtl. Law Inst.) 20684; 32 ERC (BNA) 1849; 1991 U.S. App. LEXIS 4461; 1991 WL 37054
- **Precedential status:** Published
- **Opinion:** Concurrence by Wald
- **Judges:** Buckley, Sentelle, Wald
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481450

## How later opinions describe it (automated extraction)

- recognizing that the provisions of SMCRA do not "technically apply" in primacy States
- holding that the issue was not mooted by Government's acquiescence

## Opinion text

WALD, Circuit Judge, concurring:
As the panel recognizes, the district court held that the Secretary must require operators to compensate for all subsidence damage to structures because otherwise an operator could promise to take measures to prevent subsidence in order to get a permit, but could then abandon those measures and cause the subsidence damage that Congress enacted the SMCRA to prevent. See *464 National Wildlife Federation v. Lujan, 733 F.Supp. 419, 427 (D.D.C.1990). The panel explains that, even in the absence of a rule requiring operators to compensate for all subsidence damage to structures, an operator may not violate his permit with impunity because the Secretary may impose fines or revoke the permit if the operator violates its terms and conditions. I agree. But I also believe that § 520(f) of the Act provides a remedy for those injured by an operator’s permit violations and reinforces our holding that the Secretary need not require operators to compensate for all subsidence damage to structures.
Section 520(f) of the Act provides that [a]ny person who is injured in his person or property through the violation by any operator of any rule, regulation, order, or permit issued pursuant to this chapter may bring an action for damages (including reasonable attorney and expert witness fees) only in the judicial district in which the surface coal mining operation complained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under State Workmen’s Compensation laws.
30 U.S.C. § 1270 (f). In enacting § 520(f), Congress ensured that operators will bear the costs of subsidence damage to structures caused by permit violations: by its terms, § 520(f) makes an operator liable to any person whose person or property is injured because the operator failed to comply with the conditions of the mining permit. See H.R.Conf.Rep. No. 493, 95th Cong., 1st Sess. 110 (1977), reprinted in 1977 U.S.Code Cong. & Admin.News 593, 728, 741 (§ 520(f) “establishes a right of action for injuries resulting from an operator’s violation of any rule, regulation or order or permit issued under the act”); Laurel Pipe Line Co. v. Bethlehem Mines Corp., 624 F.Supp. 538, 539 (W.D.Pa.1986). 1
*465 Significantly, an operator’s liability under § 520(f) appears to be limited only by state workmen’s compensation laws. Nothing in the text or the legislative history of § 520(f) indicates that Congress intended other types of state law to limit an operator’s liability for damage caused by permit violations. Therefore, I believe that the current subsidence regulation must be interpreted as governing only liability for damage that occurs despite the operator’s compliance with the mining permit, because the regulation would be contrary to the damage remedy in § 520(f) (or the equivalent provision of a state SMCRA) if it limited the operator’s liability for subsidence damage to structures caused by the operator’s permit violation. Thus, even under the current regulations, an operator cannot say that he will take measures to prevent subsidence in order to get a permit and then escape liability for subsidence damage caused by his permit violations. Consequently, I see no reason to hold that the operators’ duty to compensate for all subsidence damage to structures is essential to the SMCRA scheme to prevent subsidence.
. I recognize that § 520(f), like every other provision of the SMCRA, does not technically apply in states that have assumed exclusive jurisdiction over the regulation of surface mining and reclamation operations. That does not mean, however, that a person injured by a violation of a permit issued by a state pursuant to the state law equivalent of the SMCRA has no remedy. Instead, the person’s cause of action will be in state court under the state law equivalent of § 520(f). A brief explanation of the structure of the SMCRA explains why this is true.
Although the purpose of the SMCRA was to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations,” 30 U.S.C. § 1202 (a), the SMCRA allows states "to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" if the Secretary finds that their state laws and regulations are at least as stringent as the SMCRA and the Secretary’s regulations. Id. § 1253. More specifically, the SMCRA provides that a state may assume exclusive jurisdiction over surface coal mining operations only if it has, inter alia, (1) "a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of [the SMCRA]," 30 U.S.C. § 1253 (a)(1); and (2) "a State law which provides sanctions for violations of State laws, regulations, or conditions of permits concerning surface coal mining and reclamation operations, which sanctions shall meet the minimum requirements of [the SMCRA], including civil and criminal actions____” Id. § 1253(a)(2) (emphasis added).
Therefore, an operator’s obligations, in a state that has assumed exclusive jurisdiction over the regulation of surface coal mining and reclamation operations, are determined by state law, state regulations, and a state-issued permit. In addition, the state is responsible for enforcing these obligations. But the SMCRA ensures that both the substantive state regulations and the sanctions for violations are consistent with those of the SMCRA. Thus, even though § 520(f) does not necessarily provide a cause of action in federal court for a violation of a state-issued permit, any person injured by a violation of a state-issued permit has a cause of action for damages in state court pursuant to the state law equivalent of § 520(f). See, e.g., Haydo v. Amer-ikohl Mining, Inc., 830 F.2d 494, 497-98 (3d Cir.1987) (holding that § 520(f) does not provide federal jurisdiction over suits against operators who are alleged to be in violation of an approved state plan because such suits must be brought in state court); Ball v. Island Creek Coal Co., 722 F.Supp. 1370, 1376 (W.D.Va.1989) (district court in diversity case held that the section of Virginia Code modeled on § 520(f) of the SMCRA provides a damage remedy for violations of state regulations); Laurel Pipe Line Co. v. Bethlehem Mines Corp., 624 F.Supp. 538, 539-41 (W.D.Pa.1986) (holding that § 520(f) provides a cause of action to collect damages for violations of the SMCRA but that because Pennsylvania has assumed exclusive jurisdiction over surface mining operations, the action must be brought in state court pursuant to the state law equivalent of § 520(f)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481450. Public record. Not legal advice.