Opposition — White v. United States

' Offics-Ssrsnve Court. U.S.

FILED

No. 80-2055 AUG 5 1981

ALEXANDER L. STEVAS,

Sane

er om

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1980

LETCHER T. WHITE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

LAWRENCE G. WALLACE

ee RES Acting Solicitor General

Caro E. DINKINS

Assistant Attorney General

JACQUES B. GELIN

RoserT D. CLARK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the provisions of the Surface Mining Control

and Reclamation Act of 1977, which require warrantless

inspections of surface mining operations, conform to the

Fourth Amendment.

2. Whether petitioner’s conviction for willfully failing to

comply with a cessation order issued by the Department of

the Interior should be reversed for alleged violations of his

due process rights where petitioner refused to utilize proce-

dures for prompt administrative and judicial review

afforded by the Act.

TABLE OF CONTENTS

Page

ENTE cccpncvccsiccccccuyccctcvcroceses I

sires ebecsehcbesvconcecceebvacesezone I

DE cbbavedvidcceresoccordcvscvevedeesoecs l

PEE da pedetevoccscrveccssceccoescccncccees 4

ad co ies i iueisapinseevesevcéseess 10 ©

TABLE OF AUTHORITIES

Cases:

Andrus v. P-Burg Coal Co., 644 F. 2d

EUS SE STE SEeVdwoe eee dehes oesevecocces 7

Colonnade Catering Corp. v. United States,

PTE YebUNG ieee beeesoceviesecsecenes 4

Donovan v. Dewey, No. 80-901

(June 17, 1981), rev’g Marshall v. Dewey,

PS DOS cs cccdoccesicoccesecs 4,5, 6,7

Hodel v. Indiana, No. 80-231

EE cidesbhed evades sieevesceeeess 8

Hodel -v. Virginia Surface Mining & Reclamation

Ass'n, No. 79-1538 (June 15, 1981) ........... 8

Surface Mining Regulation Litigation, In re,

456 F. Supp. 1301, aff'd in part and rev'd in

part on other grounds, 627 F. 2d 1346 ........ 7

United States v. Biswell, 406 U.S. 311 ........ 4,5

Youhiogheny and Ohio Coal Company v. Morton,

Ps BOD “cecwssoccccccccvcescesscece 5

IV

Page

Constitution, statutes and regulations:

United States Constitution:

Fourth Amendment ...........eeeeeeeeees 4

FM AMMOMEMIONE cc cccccccccccccsacces 4,8

Administrative Procedure Act, 5 U.S.C.

EEE I BURP OT basse bccccscsccccccccceess 8

Black Lung Benefits Act of 1972, |

SO U.S.C. G01 68 80g. cccccccccccccccccsccces 5

Clean Air Act, 42 U.S.C. (Supp. III) 7401

CM 0 ESeE 6 ca CCR Sea U Obes Vesdsrocvecceses 5

Clean Water Act, 33 U.S.C. 1251

GD ise ccvepucvacesvecdsivessocecccsives 5

Federal Coal Mine Safety Act of 1941, ch. 87:

PEM ATE Desi cbiveecctercntbscanssegres 5

Fe SFG chee e eee vanes esesbtseese as 5

Federal Mine Safety and Health Act of 1977,

30 U.S.C. (Supp. III) 801 et seq... 2... eee 6

30 U.S.C. (Supp. III) 802(h) ...........+4-- 5

30 U.S.C. (Supp. III) 813(a) ...........-. 4,6

30 U.S.C. (Supp. IIT) 813(g) ...........---- 6

30 U.S.C. (Supp. HI) 813(i) ...........60- 6

30 U.S.C. (Supp. III) 815(d) ...........+4-- 6

30 U.S.C. (Supp. III) 816 ...........ee eee 6

30 U.S.C. (Supp. IIT) 818(a) ...........64.- 6

30 U.S.C. (Supp. III) 823(d) ..........-eeeee 6

Vv

Page

Constitution, statutes and regulations—(Continued):

Federal Coal Mine Safety Act Amendments of

1952, ch. 877 66 Stat. 692 .......eceeeeeeeeee 5

66 Stat. GDS ..ccccccccccvsccccccccscvcces 5

Surface Mining Control and Reclamation Act

of 1977, 30 U.S.C. (Supp. III) 1201 et seg. ... 2,6

30 U.S.C. (Supp. III) 1202 ...........5548- 6

30 U.S.C. (Supp. IT) 1252(c) ..........64-- 6

30 U.S.C. (Supp. III) 1252(e)(1) .......... 6,7

30 U.S.C. (Supp. III) 1265 ...........00eee 6

30 U.S.C. (Supp. III) 1267 .............. +» 6

30 U.S.C. (Supp. III) 1267(b)(3) ........... 7

30 U.S.C. (Supp. III) 1268(e) and (f) ...... 2,3

30 U.S.C. (Supp. HII) 1271 .........-- ee eee 6

30 U.S.C. (Supp. III) 1271(a(1) .......-... 6

30 U.S.C. (Supp. III) 1271(a)(2) ........... 8

30 U.S.C. (Supp. III) 1271(ay(3) ..........-. 6

30 U.S.C. (Supp. III) 1271(ay(5) ........... 9

30 U.S.C. (Supp. III) 1271(c) ......-..200e- 6

30 U.S.C. (Supp. HII) 1275 ...... eee eee eee 6

30 U.S.C. (Supp. III) 1275(ay(1) ........--- 8

30 U.S.C. (Supp. III) 1275(ay(2) ........... 8

30 U.S.C. (Supp. III) 1275(b) ..........-6-- 8

30 U.S.C. (Supp. II) 1275(c) ...........- 8,9

30 U.S.C. (Supp. III) 1276 ......... eee eee 6

30 U.S.C. (Supp. III) 1276(a)(2) ........... 9

30 U.S.C. (Supp. III) 1276(b) ..........64-- 9

30 U.S.C. (Supp. IIT) 1276(c) ..........-66- 9

30 U.S.C. (Supp. IIT) 1276(d) ..........446- 9

VI

Page

Constitution, statutes and regulations—(Continued):

Gun Control Act of 1968, 18 U.S.C.

(& Supp. III) 921 ef seg. «1... ccc esccecveees 5

Fe Gas FIGS) oc ccccbsccconcecccdies 2

PCPA, sviicccccssvvecscvecsecce 7

poe eM St er rorrr ry Terre Te 7

Miscellaneous:

44 Fed. Reg. 15594-15595 (1979) .........eeeeee 7

Inu the Supreme Court of the Hnited States

OcToBER TERM, 1980

No. 80-2055

LETCHER T. WHITE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

Neither the order of the court of appeals affirming the

judgment of conviction (Pet. App. Al-A3) nor the judg-

ment and probation/commitment order of the district court

(Pet. App. A4-A7) is reported.

-———-—— * JURISDICTION

The judgment of the court of appeals was entered on

February 16, 1981. A petition for rehearing was denied on

April 3, 1981 (Pet. App. Al3). The petition for a writ of

certiorari was filed on June 1, 1981. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Kentucky, petitioner was con-

victed of failing and refusing to comply with a cessation

2

order issued by the Department of the Interior’s Office of

Surface Mining Reclamation and Enforcement (OSM), in

violation of 30 U.S.C. (Supp. III) 1268(e) and (f). He was

sentenced to one year’s imprisonment, all but 30 days of

which was suspended in favor of unsupervised probation,

and was fined $5,000.

1. The facts leading up to the issuance of the cessation

order and petitioner’s refusal to comply with it are largely

undisputed. On October 20, 1978, David Schindler, a rec-

lamation specialist with OSM, performed a visual inspec-

tion of petitioner's strip mining operations. At that time,

Schindler observed four separate violations of regulations.

promulgated pursuant to the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. (Supp. III) 1201 et seq.

In accordance with OSM procedures, Schindler issued a

notice of violation, which required that the violations be

abated by November 3, 1978 (Pet. 11). The notice of viola-

tion expressly stated that administrative review was avail-

able and explained how to obtain it (A. 244-245).' The

notice also warned that failure to abate any of the violations

within the time period set would result in the issuance of a

cessation order (A. 245).

Two of the violations-cited-by Schindler were corrected

within the abatement period and are not at issue in this case.

One of the two remaining violations cited in the notice of

violation (Violation No. 4) was allowing organic material

and spoil to remain on the downslopes, in violation of 30

C.F.R. 716.2(a)(1). The notice specified that the required

remedial action was to pull the trees off the downslope (A.

247). The remaining violation (Violation No. 2) was peti-

tioner’s “failure to transport and place spoil in a controlled

manner in hollow fills No. 2and No.3”(A. 246). Again, the

notice of violation prescribed the necessary remedial action:

“A.” refers to the appendix filed in the court of appeals.

3

cessation of end-dumping into the hollow fills, placement of

a rock toe in the fill, working the material to the toe of the

fill and compacting the material in lifts not to exceed four

feet in thickness (ibid.).

On November 3, 1978, Schindler returned to the mine site

for a follow-up inspection. At that time, he discovered that

petitioner had not corrected the two violations described

above (A. 58-60). Schindler then prepared a cessation

order, based on the two outstanding violations (A. 248-

251), which he personally served on petitioner on Novem-

ber 6 (A. 63-64). The cessation order expressly directed

petitioner to “cease all mining operations except those

operations related to reclamation of previously disturbed

areas” (A. 250-251). It also advised petitioner of his right to

an appeal and specifically warned that a willful and know-

ing failure to comply with the order would subject him to

criminal prosecution, including imprisonment of up to one

year and a fine of up to $10,000 (A. 249).

Schindler agair returned to the site on November 13,

1978. At that time, he observed that coal was still being

mined and that the violations that were the subject of the

cessation order had not been corrected (A. 64, 66; Pet. 12

(“Defendant Letcher White continued to mine”)).

2. On December 15, 1978, the United States filed a one-

count information charging petitioner and W.D. Coal

Company, which is substantially owned and controlled by

petitioner, with wilfully and knowingly refusing to comply

with a cessation order, in violation of 30 U.S.C. (Supp. II1)

1268(e) and (f).2 With the exception of a Motion for Dis-

covery and Inspection, which the district court granted in

part and denied in part, the district court denied all of

2A superseding information also naming petitioner and the W.D.

Coal Company was filed on May 1, 1979 (Pet. App. A10).

4

petitioner’s pretrial motions, including a Motion to Sup-

press Illegally Obtained Evidence, a Motion to Dismiss for

Violation of the Defendant’s Fourth and Fifth Amendment

constitutional rights, a Motion for Bill of Particulars and a

Motion to Dismiss for Abuse of Process (Pet. App. A8-

A10). On May 4, 1979, the jury returned a verdict of guilty.

The court of appeals affirmed (Pet. App. Al-A3).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of the other

courts of appeals. Accordingly, further review is not

warranted.

1. Petitioner contends (Pet. 14-15) that the Surface Min-

ing Act’s authorization of warrantless inspections of surface

coal mine sites violates the Fourth Amendment and that,

‘herefore, the evidence obtained as a result of Schindler’s

warrantless inspections of petitioner’s mine site should have

been excluded. The court below correctly reject.d this

contention.

The present case is controlled by this Court’s recent deci-

sion in Donovan v. Dewey, No. 80-901 (June 17, 1981),

rev’g Marshall v. Dewey, 493 F. Supp. 963 (E.D. Wis.

1980), on which petitioner relies (Pet. 15, 19-20). In Dewey,

the Court upheld Section 103(a) of the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. (Supp. III) 813(a), which

authorizes warrantless inspections of underground and sur-

face mines, as within the Colonnade-Biswell exception to

the Fourth Amendment’s warrant requirement. United

States v. Biswell, 406 U.S. 311 (1972); Colonnade Catering

Corp. v. United Siates, 397 U.S. 72 (1970). In so holding,

the Court for the first time made clear (slip op. 11-12) that

5

it is the pervasiveness and regularity of the federal

regulation that ultimately determines whether a war-

rant is necessary to render an inspection program rea-

sonable under the Fourth Amendment[;] * * * [and

that while] the duration of a particular regulatory

scheme will often be an important factor in determin-

ing whether it is sufficiently pervasive to make the

imposition of a warrant requirement unnecessary([,]

* * * if the length of regulation were the only criteria,

absurd results would occur.

This Court’s decision in Dewey thus constitutes explicit

recognition that coal mining, including surface coal mining,

is a pervasively regulated industry, which comes within the

Colonnade- Biswell exception to the warrant requirement.?

§IStone quarries, the specific segment of the mining indusry involved

in Dewey, have been regulated only since 1966 (slip op. 11 & n.10).

Similarly, the sale of firearms, which was the industry involved in

United States v. Biswell, supra, has been regulated only since enact-

ment of the Gun Control Act of 1968, 18 U.S.C. (& Supp. 111) 921 e7 seq.

Coal mining, on the other hand—in contrast to the mining industry in

general, which is the subject of the Federal Mine Safety and Health Act

(see 30 U.S.C. (Supp. III) 802(h))—has long been a pervasively regu-

lated industry. Federal regulation began in 1910, with the formation of

the Bureau of Mines ( Youghiogheny and Ohio Coal Co. v. Morton,

364 F. Supp. 45, 47(S.D. Ohio 1973)), and the coal mining industry has

been subject to warrantless federal inspection for 40 years (Federal Coal

Mine Safety Act of 1941, ch. 87, 55 Stat. 177, 178). Provision for

warrantless inspections was also included in the Federal Coal Mine

Safety Act Amendments of 1952, ch. 877, 66 Stat. 692, 693. The indus-

try presently is regulated by the following additional federal statutes:

the Clean Water Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42

U.S.C. (Supp. 111) 7401 et seq.; the Black Lung Benefits Act of 1972, 30

U.S.C. 901 et seq. The industry also has been subject to long-standing

regulation by many states. See /n Re Surface Mining Regulation Litiga-

tion, 456 F. Supp. 1301, 1318 (D.D.C. 1978), aff'd in part and rev'd in

part on other grounds, 627 F. 2d 1346 (D.C. Cir. 1980).

6

Moreover, the statutory scheme providing for warrant-

less inspections under the Surface Mining Act is remark-

ably similar to that of the Federal Mine Safety and Health

Act of 1977 , which this Court upheld in Hewey. Both begin

with detailed congressional findings concerning the need to

regulate the respective aspects of the mining industry (30

U.S.C. (Supp. III) 801, 1201, 1202). Both require warrant-

less inspections of all mines covered by the respective legis-

lation at statutorily prescribed intervals (30 U.S.C. (Supp.

III) 813(a) and (i), 1252(e)(1), 1267). Both statutes and the

regulations promulgated pursuant to them describe specifi-

cally the standards with which a mine operator must

comply and to which the inspections are geared (Donovan

v. Dewey, supra, slip op. 11-12; 30 U.S.C. (Supp. IID)

1252(c), 1265). Both require the inspector to make follow-

up warrantless inspections to ascertain whether previously

discovered violations have been corrected (slip op. 2; 30

U.S.C. (Supp. II1)813(a), 1271(a)(3)), and both require the govern-

ment to conduct an inspection if a miner reports an

alleged violation (30 U.S.C. (Supp. III) 813(g), 1271(a)(1)).

Moreover, both Acts concern dangerous conditions asso-

ciated with mining, which easily could be concealed during

the time it would take to obtain a warrant (see Dewey,

supra, slip op. 8)*, and both statutes provide for prompt

administrative decisions (30 U.S.C. (Supp. III) 815(d), 316,

823(d), 1271, 1275, 1276). Finally, like the Mine Safety Act

(30 U.S.C. (Supp. III) 818(a)), the Surface Mining Act

provides (30 U.S.C. (Supp. III) 1271(c)) that if an operator

refuses to allow an inspection, the inspector is required to

‘The easily concealed hazardous conditions covered by the Surface

Mining Act include improper discharges of acid or toxic waste water

into ground or surface water systems and improper blasting.

7

seek an injunction before proceeding.’ In sum, this Court’s

conclusion in Dewey, supra, slip op. 10-11, is equally appli-

cable here:

Under these circumstances, it is difficult to see what

additional protection a warrant requirement would

provide. The Acct itself clearly notifies the operator that

inspections will be performed on a regular basis.

Moreover, the Act and the regulations issued pursuant

to it inform the operator of what health and safety

standards must be met in order to be in compliance

with the statute. The discretion of government officials

to determine what facilities to search and what viola-

tions to search for is thus curtailed by the regulatory

scheme. In addition, the statute itself embodies a

means by which any special Fourth Amendment inter-

ests can be accommodated.®

5The Surface Mining Act contuins significant protections against the

use of inspections as an instrument of harassment by government

officials. The Act limits the purpose of the inspections to ascertaining

compliance with the Act and the regulations, 30 U.S.C. (Supp. III) _

1252(e)(1); it requires that the inspections be conducted at “reasonable

times,” 30 U.S.C. (Supp. III) 1267(b)(3); and it limits the geographic

scope of the inspections to the mining and reclamation operations and

the premises in which records required by the Act are located, 30 U.S.C.

(Supp. II1) 1267(b)(3). The Secretary has further limited the scope of

warrantless searches by providing in his permanent regulations that a

search warrant may be required for searches of a building, in contrast to

site inspections. 30 C.F.R. 840.12; 30 C.F.R. 842.13. See also 44 Fed.

Reg. 15594-15595 (1979). No buildings were searched in the present

case.

‘The lower courts that have considered the first question presented by

the petition have upheld warrantless inspection provisions of the Sur-

face Mining Act. See, ¢.g., Andrus v. P-Burg Coal Co., 644 F, 2d 123!

(7th Cir. 1981); In re Surface Mining Regulation Litigation, 456 F.

Supp. 1301, 1317-1319(D.D.C. 1978), aff'd in part and rev'd in part on

other grounds, 627 F. 2d 1346 (D.C. Cir. 1980).

8

2. Petitioner claims (Pet. 14-21) that his Fifth Amend-

ment rights were violated because he did not receive a

hearing before the issuance of the cessation order. This case

does not involve issuance of a cessation order immediately

upon discovery of an alleged violation, which is authorized

by 30 U.S.C. (Supp. III) 1271(a)(2) where the violation

“creates an imminent danger to the health or safety of the

public, or is causing, or can reasonably be expected to cause

significant, imminent environmental harm to land, air, or

water resources * * *.”” Rather, it involves a cessation

order that was issued only after petitioner had refused to

abate two violations of the Act and regulations promul-

gated pursuant to it within the time stipulated in a notice of

violation.

As the court of appeals noted (Pet. App. A3), the Surface

Mining Act provides ample opportunity for administrative

and judicial review of such notices of violation and cessa-

tion orders. An aggrieved mine operator may obtain admi-

nistrative review by the Secretary of a notice of violation or

a cessation order, 30 U.S.C. (Supp. III) 1275(a)(1), includ-

ing, as a matter of right, a formal hearing under the Admi-

nistrative Procedure Act, 5 U.S.C. (& Supp. III) 554 (30

U.S.C.(Supp. 111) 1275(a)(2)). When review is sought of a

cessation order, the Secretary is required to issue a written

decision within 30 days of receipt of the application for

review. 30 U.S.C. (Supp. III) 1275(b). The mine operator

"In Hodel vy. Virginia Surface Mining & Reclamation Ass'n, No.

79-1538 (June 15, 1981), slip op. 31-36, the Court upheld the immediate

cessation order provisions of 30 U.S.C. (Supp. III) 1271(a)(2) against a

Fifth Amendment challenge. The Court also reversed the district court's

decision that the five-day period provided in 30 U.S.C. (Supp. III)

1275(c) for the Secretary to respond to requests for temporary relief (see

pages 8, 9, infra) was too long and overruled the district court's substitu-

tion of a 24-hour time limit (slip op. 36-37). The Court also upheld the

Act against a number of facial attacks on its constitutionality. See also

Hodel v. Indiana, No. 80-231 (June 15, 1981).

9

also may request temporary relief “[p]Jending completion of

the [required] investigation and hearing,” 30 U.S.C. (Supp.

III) 1275(c), which request the Secretary must “expedi-

tiously” grant or deny. /bid. Where the request is for tem-

porary relief from an order of cessation, the Secretary must

grant or deny the request within five days. /bid.

Notices of violation and orders of cessation also are

“subject to judicial review [in the district courts] on or

before 30 days from the date of such order or decision”

under the Administrative Procedure Act standards of

review, 30 U.S.C. (Supp. III) 1276(a)(2) and (b). Judicial

review is also available from decisions of the Secretary

denying temporary relief from cessation orders, 30 U.S.C.

(Supp. III) 1276(c). The district courts are empowered to

stay notices of violation and cessation orders pending their

review. See 30 U.S.C. (Supp. III) 1276(d).

In addition, an operator may request the Secretary to

modify, vacate, or extend any notice of violation or cessa-

tion order. See 30 U.S.C. (Supp. III) 1271(a)(5). Finally, in

order for a cessation order to remain effective for more than

30 days, a hearing at or near the mine site must be held

within 30 days of the operator's repeaving actual notice of

the cessation order. /bid. ee —

As the foregoing statutory scheme makes clear, where a

cessation order is issued for failure to comply with a notice

of violation, the time for the mine operator to challenge the

Act and its implementing regulations begins when he

receives the notice of violation. In this case, petitioner

deliberately chose not to pursue the Act’s administrative

remedies, although the notice of violation he received spe-

cifically informed him of his opportunity to appeal and

warned him that failure to abate the violations would result

in the issuance of a cessation order. The only consideration

relevant to the question whether the cessation order was

properly issued in this case is whether violations described

10

in the notice of violation had been corrected at the time of

Schindler’s follow-up inspection. Petitioner nowhere

alleges that he had corrected the violations at issue by the

time of the reinspection on November 3, 1981, or even by

the subsequent reinspection on November 13, 1981.

Consequently, any harm petitioner sustained was not the

result of any deficiencies in the statutory review provisions,

but, rather, was the result of petitioner’s own refusal to avail

himself of the procedures provided for by the Act. The

adequacy of those procedures thus is not at issue in this

case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LAWRENCE G. WALLACE

Acting Solicitor General

CAROL E. DINKINS

“< “Assistant Attorney Generai———

JACQUES B. GELIN

RoBerT D. CLARK

Attorneys

AuGust 1981

DOJ-1981-08