Petition for Writ of Certiorari — Moore v. United States

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Ps A on 7 49 — Office - Supreme Court, US

FILED

No. O¢T Na, 1994

AEE 2 NDE -_

IN THE SUPREME COURT OF THE UNITED © ~'*vAS

STATES —

October Term, 1984

CLARENCE MOORE

UNITED STATES OF AMERICA,

CLARENCE MOORE,

Petitioner

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

David A. Burkhalter, II

Counsel of Record

901 Bearden Drive

P. O. Box 11841

Knoxville, TN 37939-1841

(615) 584-0241

October 19, 1984

ane Hs

QUESTIONS FRESENTED

l. Whether the United States is

barred from collecting the civil

penalties sought, because it

arbitrarily, capriciously, unreasonably,

erroneously and without authority,

failed to act in conformity with the

procedure provided by law in assessing

such penalties, with prejudice to

Petitioner.

2. Whether the lower courts erred in

granting summary judgment to the United

States when the record, taken in light

most favorable to Petitioner, showed he

was not involved in the relevant mining

Operations and by law was not subject to

the Surface Mining Control and

Reclamation Act.

3. Whether the lower courts erred in

ruling that Petitioner was not entitled

to judicial review under the

Administrative Procedure Act.

4. Whether 30 USC Sec. 1268(c) is

unconstitutional as applied or on its

face so that judicial review cannot be

foreclosd despite a failure to prepay a

penalty.

i, Se

PARTIES

Petitioner: Clarence Moore

Respondent: United States of America

f= ler a

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aah ls Meal “7

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TABLE OF CONTENTS

Page

Question Presented. ....+..es hk

vl . ORE EIS Sg ee ee ee eRe

Table of Statutes and

ee a

Reference to Official and

Unofficial Reports of Lower

Ut I le ae

Statement of Grounds on which

Jurisdiction Invoked, , ...., ,10

Statement of the Case

Es Nature of the Case,

Course of Proceedings. .... .12

II. Statement of the Facts. ... 1/7

Argument:

I. The United States is barred from

collecting the civil penalties sought,

because it arbitrarily, capriciously,

unreasonably, erroneously and without

authority, grossly failed to act in

conformity with the procedure provided

by law in assessing such penalties with

prejudice to Petitioner... .....21

II. The lower courts erred in granting

Summary judgment to the United Staes

when the record, taken in the light most

favorable to Petitioner, showed he was

not involved in the relevant mining

Operations and by law was not subject to

the Surface Mining Control and

Reclamation Bet. . .. i 1 tte

III. The lower courts erred in ruling

that Petitioner was not entitled to

judicial review under the Administrative

Procedure Act.

IV. 30 USC Sec. 1268 (c) is

unconstitutional as applied and on its

face and judicial review cannot be

foreclosed despite a failure to prepay a

penalty. .

Conclusion,

Appendix

Certificate.

~34

~45

TABLE OF STATUTES AND OTHER AUTHORITIES

STATUTES Page

5 uSC Sec. 101 36

5 uSC Sec. 551 36

5S uSC Sec. 702 36,37,40,43

5 uSC Sec. 706 34,44

28 USC Sec. 1291 10

28 USC Sec. 1345 40

28 USC Sec. 1655 40

28 USC Sec. 2201 39

30 USC Sec. 802(e) 32

30 USC Sec. 1201 et seq. Passim

30 USC Sec. 1202 47

30 USC Sec. 1268 (b) 13

30 USC Sec. 1268(c) Passim

30 USC Sec. 1268 (d) 13

30 USC Sec. 1270 40

30 USC Sec. 1270(c) 40,41

30 USC Sec. 1271(a) (2) 48

30 USC Sec. 1276(a) (2) 40

42 USC Sec. 2000e et seq. 31

Rules

Rule 4(a) (4), Federal Rules of Appellate

Procedure 15,16

Rule 42, Federal Rules of Civil

Procedure 16

Rule 56, Federal Rules of Civil

Procedure 32

Regulations

—ee ee ee

Page

30 CFR 723.2 7

TR AOR,

TABLE OF CASES

Abbott Laboratories v. Gardner, 387 U.S.

Page

i ee, , Cl. Ct«w:C«SSC87 , 38, 38, 43

B & M Coal Corp. v. Office of Surface

Mining Reclamation and Enforcement, 699

F.2d 381 (7th Cir. 1983). ia

Blackhawk Mining Co. v. United States

Department of Interior, 711 F. 2d 753

(6th Cir. 1983)., .22

Eskra v. Morton, 380 F.Supp. 205 (W.D.

Wis. 1974) rev'd on other grounds, 524

F.2d 9 (7th Cir. 1975).. a. + ae

Fuentes v. Shevin, 407 U.S. 67 (1972).. .51l

Graham v. Office of Surface Mining

Reclamation & Enforcement, 722 F.2d 1106

(3rd Cir. 1983). . iy *

Hodel v. Virginia Surface Mining &

Reclamation Association, 452 U.S. 264

it. 5 5 . « .25,28,52,53

John Walters Coal Co. v. Watt, 553

F.Supp. 838 (E.D. Ky. 1982).. ae

Johnson v. Robison, 415 U.S. 361 (1974). 46

Lindsey v. Normet, 405 U.S. 56 (1972).. .47

Matthews v. Eldridge, 424 U.S. 319

(1976). . ; 45

New Jersey Life Insurance Co. v. Getz,

622 F.2d 198 (6th Cir. 1980).. 33

“iia aia

Page

Standard Oil Co. v. Federal Energy

Administration, 440 F.Supp. 328 (N.D.

ee. eat foe ge es sy ae

State of Georgia, Departuwent of Human

Resources v. Califano, 446 F.S upp. 404

ke a ee ee ee

Save our Cumberland Mountains, Inc. v.

Watt, 550 F.Supp. 979 (D.C. 1982)... 23,24,54

United States v. Crooksville Coal Co.,

560 F.Supp. 141 (S.D. Ohio 1982). .... .22

United States v. Dix Fork Coal Co., 692

Wome Gen teem Gabe ZUOETS « + «© 2 0 es wea

United States v. Hill, 553 F.Supp. 810

ae ee

United States v. Log Mountain Mining

Co., 550 F.Supp. 811 (E.D. Tenn. 1982). . .22

United States v. Thompson Brothers Coal

Co., Inc., "32 F.Supp . 979 (W.D. Pa.

1982). 22

Wong Yang Sung v. McGrath, 339 U.S. 35

PE aOR ere aoe ee oto a. Se ah ae

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REFERENCE TO OFFICIAL AND UNOFFICIAL

REPORTS OF LOWER COURT OPINION

The text of the Orders,

Memoranda, and Opinions of the lower

courts are reproduced in the Appendix.

The district court's orders and

memoranda entered October 29, 1982 and

December 13, 1982, are reported at

F.Supp. | (E.D. Tenn. 1982). The

order of the Court of Appeals entered

July 24, 1984, is unpublished.

- - . EE NER ee Ae. =

-10-

STATEMENT OF GROUNDS ON WHICH

JURISDICTION INVOKED

The Petitioner (and

co-defendant below, Julian H. Crews, who

is not a party to this .Petition) was

found liable for a civil penalty in the

amount of $45,000.00 by final order of a

district court pursuant to the Surface

Mining Control and Reclamation Act of

1977, 30 U.S.C. Sec. 1201 et seq.,

Petitioner appealed to the United States

Court of Appeals for the Sixth Circuit

pursuant to 28 U.S.C. Sec. 1291.

The Court of Appeals affirmed

the district court's ruling by a final

order filed on July 24, 1984. The right

of appeal is not available in this

action.

The Petitioner respectfully

seeks further review of this case by

requesting the Court to grant’ this

drei ee

Petition for Writ of Certiorari,

submitted pursuant to 28 U.S.C. Sec.

1254(1), timely filed under 28 U.S.C.

Sec. 2101(c).

-12—-

STATEMENT OF THE CASE

I. NATURE OF THE CASE, COURSE OF

PROCEEDINGS

(All references to the record are to the

Joint Appendix filed by the parties in

the Court of Appeals)

The Petition of Clarence Moore

arises from a final judgment on December

13, 1982, by the United States District

Court for the Eastern District of

Tennessee, Northern Division. Summary

judgment was entered in favor of the

United States on ‘iceman 29, 1982, and a

subsequent order was entered on December

13, 1982, disposing of a motion filed by

Petitioner to amend or to reconsider the

initial judgment.

The Complaint was brought by

the United States on September 2, 1982,

for the collection of civil penalties

at De

allegedly owed by Petitioner and Julian

H. Crews d/b/a D.C. Coal Company,

pursuant to 30 USC Sec. 1268(d) of the

Surface Mining Control and Reclamation

Act of 1977, 30 USC Sec. 1201 et seg.

(JA p. 3). Julian H. Crews and PD. C.

Coal Company are not parties to this

Petition, but will be referred to from

time to time when relevant and (for

purposes of clarity. The civil

penalties were allegedly owed in

accordance with 30 USC Sec. 1268(b) and

(d). (JA p. 3). The United States

sought penalties in the amount of Forty

Five Thousand Dollars ($45,000.00). (JA

p. 4).

An Answer and Counter-Claim

was filed on October 4, 1982. On

October 12, 1982, Petitioner filed a

motion for judgment on the pleadings or

in the alternative for summary judgment,

(¢

ty on

aw Os

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-14-

with supporting brief. An Amendment to

Answer was filed on October 14, 1982.

The United States filed a

reply to the counter-claim and a

cross-motion for summary judgment, with

supporting brief, on October 19, 1982.

A motions hearing was held on October

29, 1982, on the cross motions of the

parties.

Honorable Robert L. Taylor,

judge, presiding, entered an Order with

Memorandum on the day of the hearing

granting summary judgment in favor of

the United States in the amount of Forty

Five Thousand Dollars ($45,000.00).

Subsequently, on November 1, 1982,

Petitioner filed a response to the

United States’ cross-motion for summary

judgment, with supporting memorandum and

affidavit.

On November 8, 1982,

WN IR A a MR ERAN ate

atta

Petitioner filed a motion to amend the

judgment or in the alternative to

reconsider, with supporting memorandum.

An initial Notice of Appeal was filed on

November 26, 1983, but on November 29,

1982, the United States responded to the

motion to amend or reconsider.

The District Court on December

13, 1982, entered an Order granting the

motion to reconsider to the extent set

forth in a supporting memorandum. The

action of the District Court on December

13, 1982, necessitated the filing of a

new Notice of Appeal under Rule 4(a) (4)

of the Federal Rules of Appellate

Procedure. The new Notice of Appeal was

filed on December 30, 1982, and docketed

in the United States Court of Appeals

for the Sixth Circuit as Case No.

83-5014 on January 13, 1983. The

initial appeal of this case, docketed as

ities

. —

se Bical omy: tthe AREA CLA ale PS Nl

Pode a icaiald Seah sii

Nye nwer dahl taie Jew

nite

Case No. 82-5742, was dismissed on

January 11, 1983, by an order entered

upon consideration of the stipulation of

the parties to voluntarily dismiss the

case pursuant to Rule 42 and _ Rule

4(a) (4) of the Federal Rules of

Appellate Procedure.

;

‘

II. STATEMENT OF THE FACTS

The relevant facts are

contained in the Complaint, Answer and

Affidavits filed in this cause in the

District Court and as revealed in the

transcript of proceedings held October

29, 1982, on the respective motions of

the parties.

The Complaint alleged that

both Petitioner and Crews operated a

surface coal mining and reclamation

operation in Campbell County on which

certain violations occurred giving rise

to the civil penalties sought. The

United States brought the action on

penalties assessed pursuant to Cessation

Order (CO) 200228, for which a proposed

assessment of civil penalty was issued

on April 2, 1982. (JA p. 3). The

proposed assessment was issued nearly

three (3) years from July 2, 1979, the

PASI.

aed

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witie

issue date of CO 200228. (JA p. 20).

A final order was issued on

June 1, 1982, requiring payment of the

civil penalty in the amount of

$45,000.00 (JA p. 20). The United

States claimed that the civil penalty

had not been paid and had not _ been

placed in escrow and Moore and Crews

had, therefore, waived all legal rights

to contest the existence of the alleged

violations and the amount of the penalty

pursuant to 30 USC Sec. 1268(c).

(Complaint, p. 1).

Fetitioner did not deny a

failure to pay the amount of the

prbposed assessment into escrow. (JA p.

20). However, Petitioner averred that

at no time during which any available

administrative remedy was open to him

could he have afforded to either pay the

penalty or place the amount in escrow

a ra

A tat

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while seeking administrative’ relief.

(JA p. 20 and p. 72).

CO 200228 was issued on July

2, 1979, for failure to abate violations

cited in Notice of Violation (NOV)

79-II-l1-15 (originally issued

erroneously as NOV 79-II-11-5). (JA p.

24 and p. 27). NOV 79-II-11-15 was

issued on May 11, 1979, on an area

identified only as a surface mine in

Campbell County, Tennessee. (JA p. 28).

The following violations were cited: 1)

failure to pass surface draineage

through a sedimentation pond, 2) failure

to post blasting signs at mine

entrances, 3) failure to remove all

topsoil to be salvaged before mining

Operations, and 4) failure to construct

and maintain access and haul roads,

Culverts, ditches and right of ways to

prevent addition of suspended solids to

o®

a ee ee ee ee ee

-20-

stream flow. (JA p. 30 and p. 31).

Petitioner denied any

participation in the minesite or mining

operations on which NOV 79-II-11-15 and

CO 200228 were issued. The only

connection between Petitioner and the

minesite in question was equipment he

had leased to Crews on April 19, 1979.

(JA p. 72 and p. 74).

The failure of the United

States to abide by the statutory

requirements and regulations resulted in

prejudice to the rights of Petitioner.

(JA p. 72).

afita

ARGUMENT

I. THE UNITED STATES IS BARRED FROM

COLLECTING THE CIVIL PENALTIES SOUGHT,

BECAUSE IT ARBITRARILY, CAPRICIOUSLY,

UNREASONABLY, ERRONEOUSLY AND WITHOUT

AUTHORITY GROSSLY FAILED TO ACT IN

CONFORMITY WITH THE PROCEDURE PROVIDED

BY LAW IN ASSESSING SUCH PENALTIES, WITH

PREJUDICE TO PETITIONER.

Petitioner respectfully

| contends that he has the right, through

judicial review, to show that he was

| prejudiced by the government's gross

failure to comply with 30 USC Sec.

1268(c), and the United States is barred

from collecting the civil penalty of

$45,000.00.

The decisions which thusfar

have upheld the constitutionality of 30

‘

~22-

USC Sec. 1268(c) are not controlling in

this case, The following cases, on

facts vastly different from the instant

case, have upheld the constitutionality

of 30 GC ser. 1268 (c): Graham v.

Office of Surface Mining Reclamation &

Enforcement, 722 F.2d 1106 (3rd Cir.

1983); B & M Coal Corp. v. Office of

Surface Mining Reclamation &

Enforcement, 699 F.2d 381 (7th Cir.

1983); Blackhawk Mining Co. v. United

States Department of the Interior, 711

F.2d 753 (6th Cir. 1983); United States

v. Log Mountain Mining Co., 550 F.Supp.

811 (E.D. Tenn. 1982); John Walters Coal

Co. v. Watt, 553 F.Supp. 838 (E.D. Ky.

1982), United States v. Crooksville Coal

Co., 560 F.Supp. 141 (S.D. Ohio 1982).

None of the cases cited above

involved a difference of three years

from the issue date of a violation to

(

att.

the issuance of a proposed notice of

assessment. In the instant case, CO

200228 was issued on July 2, 1979, but

the proposed notice of assessment was

not issued until April 2, 1982. (JA p.

20 and p. 3).

The Department of the Interior

and the Secretary have’ taken the

position that that portion of 30 USC

Sec. 1268(c) which requires that an

Operator be informed of a proposed

assessment within 30 days of the

issuance of an NOV or CO may bar

collection of any penalty assessed in

violation of the 30-day requirement.

Save Our Cumberland Mountains, Inc. v.

Watt, 550 F.Supp. 979, 982 (D.C. 1982)

rev'd 725 F.2d 143, judgment and opinion

vacated on rehearing en banc (D.C. Cir.

April 2, 1984). The Secretary also has

taken the position that a showing of

actual prejudice by an operator will bar

imposition of a penalty assessed in

violation of the 30-day requirement of

30 USC Sec. 1268(c). Id. at n.4. In

either case, collection of the

staggeringly large penalties the United

States has imposed against Petitioner

should be barred.

Significantly, the word

"shall" when used in the penalty and

enforcement provisions of the Act, was

construed by the Court in Save Our

Cumberland Mountains, supra, as imposing

a mandatory duty on the government to

act in accordance with the provision of

the statute to which it applies. Id. at

982. 30 USC Sec. 1268(c) in pertinent

part provides:

"Upon the

issuance of a notice or

order charging that a

violation of the Act has

occurred the Secretary

shall inform the operator

o2G«

within thirty days of the

proposed amount of said

penalty."

The requirement of notification within

30 days is unequivocal and cannot be

presumed to be a gratuitous addition to

the statutory provisions. Congress

could have easily provided that the

Secretary inform an operator within a

"reasonable time" of the proposed amount

of a penalty; instead Congress provided

that the Secretary "shall inform the

operator within 30 days"of such amount.

The intent of Congress is clear and

unambiguous and should not be judicially

abrogated. Hodel v. Virginia Surface

Mining & Reclamation Assoc. 452 US 264,

304, 69 L.Ed. 2d 1, 33, 101 S.Ct. 2352,

2374 (1981).

The government previously has

argued that Petitioner actually

benefitted from the three-year delay in

atG<

assessing the penalty because penalties

were higher in 1979, when the NOV

72-II-11-15 was issued, than in 1982,

when the government finally assessed the

penalty of $45,000. (See, District

Court Memorandum, December 13, 1982, p.

2 Appendix p. 70). However, it is

quite irrelevant to a dying man or woman

that the life-saving operation available

in 1979 for $100,000.00 is now available

for $45,000.00, if they can afford

neither.

The cases, cited above,

neither deal with the issue of inability

to pay a substantial civil penalty nor

with the resulting prejudice due to the

application of the prepayment escrow

Provision in such a case. In contrast,

Petitioner could not afford to pay the

$45,000 assessed against him at any time

during which the government claims he

@27<

could have preserved his legal righte by

doing so. (JA p. 20 and p. 72). The

record shows that Petitioner may have

been able to prepay the proposed

assessment during the summer of 1979 had

it been issued in conformity with the

law, but this is by no means certain.

The speculative nature of the preceding

proposition is the result of the

government's gross failure to comply

with the law, and Petitioner should not

be further penalized for the

government's failure to initiate the

collection process timely and properly.

At any rate, the record shows that

Petitioner could not afford to pay the

$45,000.00 penalty when it was finally

issued in the winter of 1982. And for

reasons set out hereinbelow the

prepayment provision of 30 USC Sec.

1268(c) works prejudice at any time when

-28-

applied to circumstances as presented in

the instant case.

The multiple procedural steps

included in the Act have been touted by

the government as adequate safeguards to

an operator's legal rights, despite the

harsh prepayment provision of 30 USC

Sec. 1268(c). However, under facts

Similar to the instant case such

safeguards are illusory. This Court has

suggested this view by recognizing that,

"Once the escrow requirement is met,

{then} the operator receives a _ full

adjudicatory hearing, before an

administrative law judge, with a right

of appeal to an administrative board and

judicial review of the final decision.”

Hodel 452 US 304, 69 L.Ed 2d 1, 33, 101

S.Ct. 2352, 2374 (1881). The government

would seek to foreclose all review even

if an operator cannot afford in effect

go Be * Sains

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=-29-

to pay for the right of appeal. Such a

view is repugnant to our system of

justice.

-30-

II. THE LOWER COURTS ERRED IN GRANTING

SUMMARY JUDGMENT TO THE UNITED STATES

WHEN THE RECORD, TAKEN IN THE LIGHT MOST

FAVORABLE TO PETITIONER MOORE, SHOWED HE

WAS NOT INVOLVED IN THE RELEVANT MINING

OPERATIONS AND BY LAW WAS NOT SUBJECT TO

THE SURFACE MINING CONTROL AND

RECLAMATION ACT.

Petitioner averred that he was

not involved with the mining operation

Or activities from which CO 200228

arose, except for the leasing of certain

equipment. (JA po. 20 and p®* 73).

Nevertheless, the district court in the

face of Moore's denial said that

"Moore's involvement ... may well have

been covered by the Surface Mining Act"

(emphasis added), citing United States

v. Dix Fork Coal Co., now officially

reported at 692 F.2d 436 (6th Cir. 19).

The Dix Fork opinion applied

to the instant case absolves Petitioner

of liability under the Act. The Court

of Appeals for the Sixth Circuit found

the "agent" in Dix Fork, supra, to be

nttn

one who "had been delegated and had

assumed and executed" the responsibility

of ensuring compliance with the Act for

his son's mining company. 692 F.2d at

441. The Sixth Circuit Court found that

parallel definitions of "“agent" from

other statutory schemes were

appropriate, noting that 30 USC Sec.

1201 et seq. contained no definition for

"agent". Looking to the definition of

"agent" under Title VII, 42 USC Sec.

2000 et seq., the court in Dix Fork,

supra, found an “agent" was one who as a

"supervisory or managerial

employee ... “had authority to make

employment decisions. Id.

The Sixth Circuit Court then

gave the following definition from the

Coal Mines Health and Safety Act:

(e) "agent" means any

person charged. with

responsibility for the

operation of all or part

eee en es

(MAPA

a ‘ia _

AaB s a

of a coal mine or _ the

supervision of the miners

in a coal mine,

30 USC Sec. 802(e). Id.

Petitioner was not an "agent"

under either definition and cannot be

held responsible for alleged violations

of the Act resulting in the assessment

of civil penalties. It can only be

presumed that the equipment Petitioner

Moore leased to Crews was the only basis

for naming him in NOV 79-II-11-15. The

record shows that Petitioner Moore was

added to the NOV three days after its

issuance on May 1l, 1979, absent any

reasons for the action except as the

"result of additional information." (JA

p. Sl and p. 57).

Of course, the disputed

factual issues raised would ordinarily

preclude the granting of summary

judgment under Rule 56 of the Federal

sey hice

atte

Rules of Civil Procedure. In

considering a motion for summary

judgment, the evidence is to be viewed

in light most favorable to the party

Opposing the motion. New Jersey Life

Insurance Co. v. Getz, 622 F.2d 198 (6th

Cir. 1980). Further, the Court of

Appeals recognized that on review it

must do the same. Id. at 200. The

district court and the court of appeals

failed to follow ‘the established

standard. However, the essence of the

lower courts' final decisions to grant

summary judgment to the United States is

that Petitioner Moore had no right to

judicial review due to a failure to

exhaust administrative remedies.

Petitioner Moore respectfully disagrees

with such a conclusion.

athe

Iit. THE LOWER COURTS ERRED IN RULING

THAT PETITIONER WAS NOT ENTITLED TO

JUDICIAL REVIEW UNDER THE ADMINISTRATIVE

PROCEDURE ACT.

The scope of the judicial review

of agency action is found at 5 U.S.C.

Sec. 706, part of what is still

popularly referred to as the

Administrative Procedure Act. The scope

of judicial review contained within 5

U.S.C. Sec. 706 requires that the Court

"hold unlawful and set aside agency

action, findings, and conclusions”

which, inter alia, are “arbitrary,

capricious, an abuse of discretion,”

illegal or without observance of

required procedure.

Section 706 in

full provides:

To the extent

necessary to decision and

when presented, the

reviewing court shall

decide all relevant

questions of Taw,

- =

interpret constitutional

and statutory provisions.

4 etermine the meanin

or applicability of the

erms of an agency action.

The reviewing court

shall--

(1) compel agency action

unlawfully withheld or

unreasonably delayed; a

(2) hold unlawful and set

aside agency action,

findings, and conclusions

found to be--

(A) arbitrary, capricious,

an abuse o iscretion, or

otherwise not in

accordance with law;

(B) contrary to

constitutional right,

power, privilege, Or

immunity;

jurisdiction, a TTF,

or limitations, or short

of statutory right;

(D) without observance of

procedure required by law;

(E) unsupported by

substantial evidence in a

case subject to sections

556 and 557 of this title

or otherwise reviewed on

the record of an agency

hearing provided by

statute; or

(F) unwarranted by the

facts to the extent that

the facts are subject to

trial de novo by the

reviewing court.

In making the

foregoing determinations,

the court shall review the

whole record or those

parts of it cited by a

party, and due account

shall be taken of the rule

of prejudicial error.

(Emphasis added).

The Department of Interior is an

Executive Department specifically

subject to having its actions reviewed

under the Administrative Procedure Act.

See, 5 U.S.C. Sec. 101, Sec. 551, and

Sec. 702. An example of judicial review

of action by the Department of the

Interior, even though such action by

statute was termed "final and

conclusive", is Eskra v. Morton, 380 F.

Supp. 205 (W.D. Wis. 1974) reversed on

other grounds, 524 F. 2d 9 (7th Cir.

es FS cee mr eae Oe

1975).

Title 5 U.S.C. Sec. 702 provides

in pertinent part:

A person suffering

legal wrong because of

agency action within the

meaning of a relevant

statute, is entitled to

judicial review thereof.

An action in a court of

the United States seeking

relief other than money

damages and_~ stating a

Claim that agency action

or an officer or employee

thereof acted or failed to

act in an official

Capacity or under color of

legal authority shall not

be dismissed nor relief

therein denied on the

grounds that it is against

the United States or that

the United States is an

indespensable party....

The presumption and policy in

favor of review established by this

Court is very strong. Abbott

Laboratories v. Gardner, 387 US 136, 18

L.Ed 2d 681, 87 S.Ct. 1507 (1967).

There is a presumption in favor of

judicial review to all those suffering

«38«

legal wrong or adversely affected or

aggrieved by agency action within the

meaning of a relevant statute, so long

as such relief is not precluded by

Statute nor committed by law to agency

discretion. Id., 387 US at 140, 141, 18

L.Ed.2d at 687, 87 S.Ct. at 1511.

The Supreme Court in Abbott

Laboratories v. Gardner, supra, in

considering the Administrative Procedure

Act, stated as follows:

~e«- [It] provides

specifically not only for

review of "[a]gency action

made reviewable by

statute" but also for

review of “final agency

action for which there is

no other adequate remedy

in a court,” §$ USC Sec.

704. The legislative .

material elucidating that

seminal act manifests a

congressional intention

that it cover aé_ broad

spectrum of administrative

actions, and this Court

has echoed that theme by

noting that the

Administrative Procedure

Act's "generous review

provisions must be given a

hospitable

interpretation..."

[Court's citations

omitted]... the Court

[has] held that only upon

a showing of clear and

convincing evidence of a

contrary legislative

intent should the courts

restrict access to

judicial review. See

also, Jaffe, Judicial

Control of Administrative

Action 336-359 (1965).

Id. at 140, 141. (Emphasis added).

Agency action which "requires an

immediate and significant change in the

Plaintiffs' [person's aggrieved] conduct

and their affairs, with serious

penalties attached to noncompliance"

requires that access to the courts be

permitted under the Administrative

Procedure Act and the Declaratory

Judgment Act, 28 US Sec. 2201. Cf., 387

US at 153.

The Surface Mining Control and

a anne at gant Stal Phin MRR Sine ly shes .

nr NN RC NTS a TOE ac I MENA CARE Matt OME gee LO AG ty an a

-40-

Reclamation Act of 1977 undoubtedly is a

"relevant statute" for purposes of the

presumption of review under 5 USC Sec.

702. The independant jurisdiction of

the district court was invoked under 30

USC Sec. 1268(d), as well as 28 USC Sec.

1345 and 28 USC Sec. 1355. These

Statutes certainly do not_ preclude

judicial review. In fact, the Surface

Mining Control and Reclamation Act at 30

USC Section 1276 provides for judicial

review. Moreover, 30 usc Section

1276 (a) (2) provides that the

availability of review in ae civil

penalty proce2ding is not to be

construed to limit rights afforded by 30

USC Sec. 1270. Specifically, 30 USC

Sec. 1270(c) provides:

Nothing in this

section shall restrict any

right which any person (or

class of persons) may have

under any statute or

common law to seek

enforcement of an

provisions of this Act an

the regulations

thereunder, or to seek an

other relie

reiier agains e

ecretary or e

appr

ppropriate State

regulatory authority).

(Emphasis Added).

Petitioner Moore must be included in the

broad language of 30 USC Section 1270(c)

as a person who may exercise available

rights such as those afforded under the

Administrative Procedure Act.

The question that must now be

addressed in view of the very strong

presumption favoring judicial review is

the effect of 30 USC 1268(c).

Petitioner Moore, for reasons stated

hereinabove, did not prepay the

$45,000.00 civil penalty assessment into

escrow as purportedly required to seek

judicial review. The Act through 30 USC

Section ~1268(c) provides that failure to

-42-

prepay the penalty will result in a

“waiver of all legal rights to contest

the violation or the amount of the

penalty.” Petitioner Moore does not

seek per se to contest the “violation”

or the “amount” of the penalty. So far

as Petitioner's rights under the

Administrative Procedure Act are

concerned, he requests this Court to

consider whether the Government acted

arbitrarily, capriciously, or illegally

in assessing a $45,000 penalty in April,

1982, pursuant to a Cessation Order

issued on July 2, 1979, when he was not

involved at the minesite in question and

he has been prejudiced thereby.

In light of the strong policy

favoring judicial review, Petitioner

Moore must prevail ‘unless the united

States can show “clear and convincing

evidence of a contrary legislative

ai3e

intent...." See, Abbott Laboratories v.

Gardner, supra. The United States can

not produce such clear and convincing

“evidence. Petitioner Moore respectfully

submits that he is entitled to judicial

review to determine if the agency acted

illegally, arbitrarily, in abuse of its

discretion, or capriciously. The

relevant statute, 30 USC Sec. 1201 et

seg., does not preclude review (and in

fact provides for review), and_ the

strong presumption of review afforded by

5 USC Sec. 702 is intact and

controlling. Standard 0il Co. v.

Federal Energy Administration, 440 F.

Supp. 328 (N.D. Ohio 1975).

The proposed notice of

assessment on the cessation order was

issued on April 2, 1982, nearly three

years after the issuance of the

cessation order, in gross violation of

id SL

ed ran,

-~44-

the 30-day requirement of 30 USC Sec.

1268(c).

The arbitrary action and

unreasonable delay and failure of the

agency to follow the prescribed

procedures resulted in prejudice to

Petitioner Moore. Procedural

irregularities alone, if prejudicial,

are grounds for reversal of agency

action. Cf., State of Georgia,

Department of Human Resources v.

Califano, 446 F. Supp. 404, 410, 411

(N.D. Ga. 1977). The arbitrary,

Capricious and legally unfounded action

of the agency in this case is so

erroneous on its face as to be reversed

under 5 USC Sec. 706.

-~45-

IV. 30 USC SEC. 1268 (c) IS

UNCONSTITUTIONAL AS APPLIED AND ON ITS

FACE AND JUDICIAL REVIEW CANNOT BE

FORECLOSED DESPITE A FAILURE TO PREPAY A

PENALTY.

Judicial review of agency action

is proper when the constitutionality of

an act and its implementing regulations

is questioned. A constitutional

challenge should not be precluded

because a party has either failed to

raise a constitutional question during

administrative review, or having failed

to resort to available administrative

remedies, raises the question for the

first time in a district court. er.

Matthews v. Eldrige, 424 US 319, 329-331

ns. 10 and 11, 47 L.Ed.2d 18, 29-31 96

S.Ct. 893, 903-907 (1976).

This 7 keeping with the rule

that review of a constitutional challege

to the statute upon which agency action

rests is not barred because certain

~46-

facts or conclusions are presumptively

made unreviewable by the words of the

statute. Johnson v. Robison, 415 US

361, 367, 39 te BA. 39, 396, 97 S.Ct.

1160, 1166 (1974). As was the case in

Johnson, supra, the statute in this

case, 30 USC Sec. 1268(c), does not

explicitly bar consideration of a

constitutional challenge, and to. the

extent it was applied in such a manner

it would be unconstitutional.

Also, to the extent 30 USC Sec.

1268(c) purports to restrict access to

the courts, or if by application an

operator is prevented from seeking

judicial review, it is unconstitutional.

Section 1268(c) as applied is a

violation of the Fifth Amendment in that

it restricts access to the cowrts

unreasonably and is in direct conflict

with the statutory presumption of review

af Pe

given to all litigants coming within the

purview of 5 USC Secs. 701-706.

Petitioner Moore has shown he is

entitled to judicial review.

To the extent prepayment is

required to achieve review of alleged

arbitrary, capricious, illegal or

unconstitutional agency action, it is an

umdue burden on Petitioner's statutory

right to review and cannot be sustained.

Lindsey v. Normet, 405 US 56, 76-78, 31

L.Ed.2d 36, 52-53, 92 S.Ct. 862, 875-877

(1972). Prepayment of a full assessment

bears no relation to the actual harm to

be prevented by the Surface Mining

Control and Reclamation Act of 1977.

See 30 USC Sec. 1202. Nor does such a

requirement serve the objective of civil

penalties. See 30 CFR 723.2.

In the instant case, the

violations for which CO 200228 were

issued were not so serious a threat to

the environment as to require cessation

of mining activities when initially

observed. If the violations cited in

NOV 79-II-11-15 had been a= serious

threat to the environment, a cessation

of mining activities would have been

ordered pursuant to 30 USC Sec.

1271(a) (2). Yet, Petitioner Moore, who

was not involved in the mining

activities complained of, was expected

to pay $45,000 for such violations.

Subsection 1271 (a) (2) provides in

pertinent part:

(a) (2) When, on the basis

of any Federal inspection,

the Secretary or his

authorized representative

determines that any

condition or practices

exist, or that any

permittee is in violation

of any requirement of this

Act or any permit

condition required by this

Act, which condition,

practice, or violation

also creates an imminent

-49-

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, the

Secretary or his

authorized representative

shall immediately order a

cessation of surface coal

mining and reclamation

Operations or the portion

thereof relevant to the

condition, practice, or

violation.

30 USC Sec. 1271(a) (2).

Requiring prepayment only serves

to deprive an operator of the means to

remedy any perceived harm to the

environment by depriving him or her of

the resources necessary to conduct

mining or reclamation work, and the

amount of the penalty may be unrelated

to the actual cost of protecting the

interest to be served. To that extent

it is invalid. 405 US 56 at 76-78.

To the extent that prepayment is

-50-

perceived or cited as a more efficient

way to ensure that operators comply with

the Surface Mining Control and

Reclamation Act, it is equally invalid.

“In the context of this case, an argument

based on efficient administration must

be rejected, at least so far as it is

used to bar application of the

Administrative Procedure Act and deny to

Petitioner Moore the right to judicial

review. Wong Yang Sung v. McGrath, 339

US 35, 46, 94 L.Ed. 616, 626, 70 S.Ct.

445, 452 (1950).

Conditioning access to judicial

review on prepayment into escrow of an

assessed penalty, as has been the

construction of 30 USC Sec. 1268(c) by

the courts which have considered the

issue, is not the only time the

condition is imposed. Prepayment also

is required by Sec. 1268(c) even at the

atu

administrative level for meaningful

review of the penalty.

Even a temporary deprivation of

property before a hearing is held is a

deprivation rising to constitutional

levels. Fuentes v. Shevin, 407 US 67,

S85, 90 n.22, 32 L.EG. 24 556, 572, 576,

92 S.Ct. 1983, 1966-1997, 1999 (1972).

In this case, Petitioner could not

afford to prepay the penalty demanded of

him at any stage of review,

administrative or judicial. Therefore,

he had no meaningful nor realistic means

to protect his rights and property. For

this reason 30 USC Sec. 1268(c), at

least in this case and as applied, is

invalid and cannot be used to bar the

claims and challenges of Petitioner

Moore.

As noted, Petitioner Moore could

not afford to pay the proposed penalty

«$2-

into escrow, and the cases which have

upheld 30 USC Sec. 1268(c) against

constitutional challenge are not

controlling under the facts of this

case.

Finally, this Court has not

passed upon the constitutionality of the

Act's civil penalty provisions, but has

indicated that facts similar to those

presented in the instant case would

present a proper case for considering

the issue. Hodel v. Virginia Surface

Mining & Reclamation Association, 452 US

264, 304, 69 L.Ed. 2d 1, 33, 101 S.Ct.

2352, 2374 (1981). In the absence of a

definitive ruling from this Court, the

lower courts have felt justified in

upholding the harsh provision, even when

presented with egregious circumstances

evident in the instant case. The Court

in Hodel stated:

ak Se.

In challenging the Act's

Civil penalty provision

appellees did not allege

that they, or any one of

them have had civil

penalties assessed against

them. Moreover, the

District Court did not

find, as it did in ruling

on the immediate cessation

Order provisions, that any

appellee coal mine

Operators have been

affected or harmed by any

of the statutory

procedures for the

assessment and collection

of fines. Thus, the

record in the case belies

any suggestion that there

is a concrete case or

controversy concerning the

operation of these

provisions. In these

circumstances, we must

conclude that appellees'

challenge is premature and

that it was improper for

the court below to render

a decision on this claim.

Id. at 304.

The implication is that’ the

district court was not- necessarily

incorrect in its ruling striking down

the provisions, but rather that it was

not rendered at the proper time in the

ite

proper case.

The instant case presents

precisely the case which the Court

indicated would be ripe for

consideration of the constitutionality

of 30 USC Sec. 1268(c), because of the

size of the penalty, the delay in its

assessment, the inability of Petitioner

Moore to pay, the prejudice which has

resulted, and the failure to allow

Petitioner judicial review under the

Administrative Procedure Act. The

Department of the Interior and_ the

Secretary have maintained that under

such circumstances imposition of a

penalty and its collection miyhnt be

barred. Save Our Cumberland Mountains,

Inc. v. Watt, 550 F.Supp. at 982 (D.C.

1982).

e<—_

eS ae

CONCLUSION

For the foreaoing reasons, the

Petitioner requests the Court to bar the

collection of the civil penalty sought,

to grant Certiorari in this case, strike

down 30 USC Sec. 1168 (Cc) as

unconstitutional, and set a standard for

enforcement of the Surface Mining

Control and Reclamation Act of 1977 in

line with Constitutional constraints.

David Burkhalter JL

Aitorney at Law

P.0 |

, 31935-1841

if.

APPENDIX

Judgment of District Court

aS.

INDEX TO APPENDIX

Order of Court of Appeals

United States Constitution,

Amendment Five

USC

Sec.

Page

58,60 ,66,68

1254 (1) 78

1291 79

2101(c) 80

1268 (b) 81

1268 (c) 81

1268 (d) 81

1271(a) 83

1276 (a) (2) 89

1276 (b)

-58-

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE NORTHERN

DIVISION

UNITED STATES OF AMERICA, )

)

¥i }CiIV.

)3-82-524

JULIAN H. CREWS, ET AL )

ORDER

For the reasons stated in a

memorandum opinion this day passed to

the Clerk for filing, it is ORDERED that

plaintiff's motion for summary judgment

in the amount of $45,000.00 be, and the

same hereby is, granted. It is further

ORDERED that defendants’ motion for

Summary judgment be, and the same hereby

is, denied.

Enter: October 29, 1982.

/s/

United States

-59-

District Judge

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Ve ) Civ.

) 3-82-524

JULIAN H. CREWS, ET AL )

)

MEMORANOD U M

This is an action for

collection of a civil penalty of

$45,000.00 for failure to abate two

violations of the Surface Mining Control

and Reclamation Act of 1977, 30 U.S.C.

Sec. 1201 et seq. The case is before

the Court on cross motions for summary

judgment. Defendants do not contest the

fact of the mining violation or the

amount of the penalty. They allege,

however, that Cessation Order 200228, on

which the penalty was assessed, is

aG@i-=

defective and void on its face.

On May ll, 1979 a reclamation

specialist inspected defendants' surface

mining operation in Campbell County,

Tennessee, A Notice of Violation was

issued, naming four specific violations

of the Surface Mining Act. The notice

required defendants to complete remedial

measures by June 4, 1979. The Notice

contained the following penalty

provisions:

For each

violation covered by this

Notice, a penalty of up to

$5000 may be assessed for

each day during which that

violation continues.

If you fail to

abate any of the

violations within the time

set for abatement or to

meet any interim tep, you

must be assessed a minimum

penalty of no less than

$750 for each day during

which the violation

continues beyond the time

set for abatement, and you

must be issued a cessation

atin

Order requiring you’ to

cease surface coal mining

operations on the portions

relevant to the

violations.

On July 2, 1979 the inspector again

inspected the cite. He issued Cessation

Order 200228 after finding defendants

had not remedied two of the four

violations. The Cessation Order

provided:

If this Order is

being issued for failure

to abate a violation(s)

which was the subject of a

prior Notice of Violation,

a minimum penalty of $750

Or more must be assessed

for each day beginnin

today, during which the

violation(s) continues

beyond the abatement

period set forth in that

Notice.

The affirmative obligations *nd time for

abatement remained as stated in May 1l,

1979 Notice of Violation.

-6§3-

Defendants contend the

Cessation Order is void because it

required abatement prior to issuance.

This argument is totally without merit.

Plaintiff gave defendants from May 11,

1979 until July 2, 1979 to abate the

violations without incurring a penalty.

Defendants had notice of the

consequences of failure to comply with

the Notice of Violation and failed to do

so. The Cessation Order merely

implemented the sanctions contemplated

in the Notice of Violation. This

procedure complied with the Surface

Mining Act, 30 U.S.C. Sec. 1271(a) (3):

When, on the basis of a

Federal inspection. . .the

Secretary or his

authorized representative

determines that any

permittee is in violation

of any requirement of this

chapter or any permit

condition, required by

this chapter; but such

violation does not create

an imminent danger to the

-64-

health or safety of the

public, or cannot be

reasonably expected to

cause significant,

imminent environmental

harm to land, air, or

water resources, the

Secretary or authorized

representative shall issue

a notice to the permittee

or his agent fixing a

reasonable time but not

more than ninety days for

the abatement of the

violation and_ providing

opportunity for public

hearing.

Defendants also argue that

issuance of the Notice of Assessment on

April 2, 1982, more than 30 days after

the Notice of Violation or Cessation

Order, violated 30 U.S.C. Sec. 1268(c)

and worked to their prejudice. We have

previously held that the thirty-day time

period is not jurisdictional. United

States v. Moore, No. 3-81-520 (E.D.

Tenn., filed July 21, 1982), appeal

docketed, No. 82-5478 (6th Cir. Aug. 10,

1982). Defendant has failed to show,

win

and we cannot find, how he has been

prejudiced by plaintiff's delay in this

case.

For the foregoing reasons, it

is ORDERED that plaintiff's motion for

Summary judgment in the amount. of

$45,000.00 be, and the same hereby is,

granted. It is further ORDERED that

defendants' motion for summary judgment

be, and the same hereby is, denied.

/s/

United States

District Judge

-66-

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE NORTHERN

DIVISION

UNITED STATES OF AMERICA, )

)

Ve )CIV.

) 3-82-524

JULIAN H. CREWS, ET AL )

ORDER

For the reasons stated in a

memorandum opinion this day passed to

the Clerk for filing, it is ORDERED that

the motion to reconsider and = make

additional findings and conclusions be,

and the same hereby is, granted to the

extent of the memorandum opinion. It is

further ORDERED that defendants’ motion

to amend judge be, and the same hereby

is, denied.

Enter: December 13, 1982.

/s/

United States

a@%x

District Judge

«f@e

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Ve ) Civ.

) 3-82-524

JULIAN H. CREWS, ET AL )

)

MEMORANOD U M

Defendants move to reconsider

Or amend the judgment of this Court

entered October29, 1982. On that date,

after hearing the argument of counsel

and considering defendants' position, we

granted judgment against defendants in

the amount of $45,000.00 for failure to

abate surface mining violations,

Defendants contend that we did

not fully consider all the relevant

facts at the time judgment was entered.

«@@0

Specifically, they point to the

affidavit of defendant, Clarence Moore,

filed November 1, 1982. At the hearing,

however, defendants' counsel stated the

substance of the affidavit and we

considered it as if it had been filed.

We will, however, address the specifics

of the affidavit at this time. Moore

alleges that he was prejudiced by

receiving the notice of the penalty

assessment during the early spring of

1982 rather than during the summer of

1979 when the violations occurred. He

says he “quite possibly” would have had

$45,000.00 in 1979 to place in escrow so

that he might appeal the penalty. See

30 U.S.C. Sec. 1268(c). He further

States that he was not responsible for

the violations. We assume this is the

issue he would have raised in 1979.

Defendant Moore, however, could have

—— |

_ =

raised this issue without prepayment of

any penalty in 1979. See 30 U.S.C. Sec.

1275; 43 C.F.R. Sec. 4.1160 et seg.

Since he did not do so, his argument of

prejudice by this delay is without

merit. We also note that the delay may

have worked to defendants' benefit as

the potential penalty in 1979 was

substantially higher under the then

effective regulations. 30 C.F.R. Sec.

723.14; 42 Fed.Reg. 62703 (1977),

Plaintiff's brief p. 5.

As stated above, defendant

Moore also alleges that he was not

responsible for the mining activities

that lead to the issuance of Cessation

Order 200228 that is the basis of this

action. Since he failed to exhaust his

administrative remedies as to this

claim, he may not now raise the issue

before this Court. ss aan oe

1268(c). We note, however, that this

contention is weak at best, since Moore

has been engaged in other mining

activities, leased the equipment used

where the instant violations occurred,

and failed to raise the issue until the

present time. The scope of "agents" who

may be held responsible for correction

of surface mining violations is broad.

See United States v. Dix Fork Coal Co.,

No. 81-5125 (6th Cir., filed Nov. 9,

1982). Moore's involvement, therefore,

may well have been covered by the

Surface Mining Act.

Moore also states that he did

not receive notice of Violation 79-II-5

and Cessation Order 200208. As_ these

documents are not the subject of the

instant lawsuit, these contentions are

without merit.

The Court in its memorandum

atta

Opinion of October 29, 1982 addressed

the remaining legal contentions raised

in the cross-motions for summary

judgment. Further reconsideration of

the case is therefore unnecessary.

Accordingly, it is ORDERED that’ the

motion to reconsider and make additional

findings =a conclusions be, and the

same hereby is, granted to the extent of

this memorandum. It is further ORDERED

that defendants' motion to amend the

judgment be, and the same hereby is,

denied.

/s/

United States

District Judge

NO. 83-5014

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

Ve Ci¥.

)

)3-82-524

JULIAN H. CREWS, AND )

CLARENCE MOORE, d/b/a )

D.C. COAL COMPANY, )

)

Defendants-Appellants.

BEFORE: LIVELY, Cheif Judge, ENGEL,

Circuit Judge and PECK, Senior Circuit

Judge.

This cause having come onto be

heard upon the record, the briefs and

Oral argument of the parties, and upon

due consideration hereof,

It is ORDERED that the

judgement of the district court be, and

it hereby is, affirmed upon the opinion

of the district court.

ENTERED BY ORDER OF THE COURT.

«74.

FILED: July 24, 1984

/s/

~ John P. Hehman, Clerk

-/5-

-NO TEXT-

ate =

CONSTITUTION OF THE UNITED STATES OF

AMERICA

Amendment 5

Criminal actions--Provisions

concerning--Due process of law and just

compensation clauses.

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due

process of law; nor shall _ private

property be taken for public. use,

without just compensation.

me Gan,

re ms fs

7 : -

Soe ow

28 U.S.C. Sec. 1254. Court of appeals;

certiorari; appeal; certified questions

Cases in the courts of appeals may be

reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari

granted upon the petition of any party

to any civil or criminal case, before or

after rendition of judgment or decree;

(2) By appeal by a party

relying on a State statute held by a

court of appeals to be invalid as

repugnant to the Constitution, treaties

or laws of the United States, but such

appeal shall preclude review by writ of

certiorari at te instance of such

appellant, and the review on appeal

shall be restricted to the Federal

questions presented;

(3) By certification at any

time by a court of appeals of any

question of law in any civil or criminal

case as to which instructions are

desired, and upon such certification the

Supreme Court may give binding

instructions or require the entire

record to be sent up for decision of the

entire matter in controversy.

28 U.S.C. Sec. 1291. Fimal decisions of

district courts

The courts of appeals’ shall

have jurisdiction of appeals from all

final decisions of the district courts

of the United States, the United States

District Court for the District of the

Canal Zone, the District Court of Guam,

and the District Court of the Virgin

Islands, except where a direct review

may be had in the Supreme Court.

ss; ae Gor

eS ogee i va aa .

a | ot ‘ee nora) eae

ea ete Be

es Thagok te Pear

tug

-80-

28 U.S.C. Sec. 2101. Supreme Court;

time for appeal or certiorari;

docketing; stay

(a) eee

(b) coe

writ of certiorari intended to bring any

judgment or decree in a civil action,

Suit or proceeding before the Supreme

Court for review shall be taken or

applied for within ninety days after the

entry of such judgment or decree. A

justice of the Supreme Court, for good

cause shown, may extend the time for

applying for a writ of certiorari for a

period of not exceeding sixty days.

(d) eee

[ny teas

sit.

30 U.S.C. Sec. 1268. Penalties

(a) ees

(b) Hearing. A civil penalty

shall be assessed by the Secretary only

after the person charged with a

violation described under subsection (a)

of this section has been given an

Opportunity for a public hearing. Where

such a public hearing has been held, the

Secretary shall make findings of fact,

and he shall issue a written decision as

to the occurrence of the violation and

the amount of the penalty which is

warranted, incorporating, when

appropriate, and order therein requiring

that the penalty be paid. When

appropriate, the Secretary shall

consolidate such hearings with other

proceedings under section 521 of this

Act. Any hearing under this’ section

shall be of record and shall be subject

to section 554 of title 5 of the United

States Code. Where the person charged

with such a violation fails to avail

himself of the opportunity for a public

hearing, a civil penalty shall be

assessed by the Secretary after the

Secretary has determined that a

violation did occur, and the amount of

the penalty which is warranted, and has

issued an order requiring that’ the

penalty be paid.

issuance of a notice or order charging

that a violation of the Act has

occurred, the Secretary shall inform the

Operator within thirty days of the

proposed amount of said penalty. The

person charged with the penalty shall

ote Saua — o = :

“wet ae aaa .

cages as Ags Ses |

ESE. ae age a8

Age

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then have thirty days to pay’ the

proposed penalty in full or, if the

person wishes to contest either the

amount of the penalty or the fact of the

violation, forward the proposed amount

to the Secretary for placement in an

escrow account. If through

administrative or judicial review of the

proposed penalty, it is determined that

no violation occurred, or that’ the

amount of the penalty should be reduced,

the Secretary shall within thirty days

remit the appropriate amount to the

person, with interest at the rate of 6

percent, or at the prevailing Department

of the Treasury rate, whichever is

greater. Failure to forward the money

to the Secretary within thirty days

shall result in a waiver of all legal

rights to contest the violation or the

amount of the penalty.

(d) Recovery in civil action.

Civil penalties owed under this Act, may

be recovered in a civil action brought

by the Attorney General at the request

of the Secretary in any appropriate

district court of the United States.

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=83-

30 U.S.C. Sec. 1271. Enforcement.

(a) Notice; Federal

inspection; waiver; cessation order;

affirmative obligations; hearince;

suspension or revocation of permits;

contents of notices and orders;

expiration date. (1) Whenever, on the

basis of any information available to

him, including receipt of information

from any person, the Secretary has

reason to believe that any person is in

violation of any requirement of this Act

Or any permit condition required by this

Act, the Secretary shall notify the

State regulatory authority, if one

exists, in the State in which such

violation exists. If no such State

authority exists or the State regulatory

authority fails within ten days after

notification to take appropriate action

to cause said violation to be corrected

Or to show good cause for such failure

and transmit notification of its action

to the Secretary, the Secretary shall

immediately order Federal inspection of

the surface coal mining operation at

which the alleged violation is occurring

unless the information available to the

Secretary is a result of a previous

Federal inspection of such surface coal

mining operation. The ten-day

notification period shall be waived when

the person informing the Secretary

provides adequate proof that an imminent

danger of significant environmental harm

exists and that the State has failed to

take appropriate action. When the

Federal inspection results from

information provided to the Secretary by

any person, the Secretary shall notify

such person when the Federal inspectior

-84-

is proposed to be carried out and such

person shall be allowed to accompany the

inspector during the inspection.

(2) When, on the basis of any

Federal inspection, the Secretary or his

authorized representative determines

that any condition or practices exist,

Or that any permittee is in violation of

any requirement of this Act or any

permit condition required by this Act,

which condition, practice, or violation

also 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, the Secretary or his

authorized representative shall

immediately order a cesstion of surface

coal mining and reclamation operations

or the portion thereof relevant to the

condition, practice, or violation. Such

cessation order shall remain in effect

until the Secretary or his authorized

representative determines that the

condition, practice, or violation has

been abated, or until modified, vacated,

or terminated by the Secretary or his

authorized representative pursuant to

Subparagraph (a)(5) of this section.

Where the Secretary finds that the

ordered cessation of surface coal mining

and reclamation operations, or. any

portion thereof, will not completely

abate the imminent danger to health or

safety of the public or the significant

imminent environmental harm to land,

air, or water resources, the Secretary

shall, in addition to the cessation

order, impose affirmative obligations on

the operator requiring him to take

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whatever steps the Secretary deems

necessary to abate the imminent danger

or the significant environmental harm.

(3) When, on the basis of a

Federal inspection which is carried out

during the enforcement of a Federal

program or a Federal lands program,

Federal inspection pursuant to section

502, or section 504(b) or during Federal

enforcement of a State program in

accordance with subsection (b) of this

section, the Secretary or his authorized

representative determines that any

permittee is in violation of any

requirement of this Act or any permit

condition required by this Act; but such

violation does not create an imminent

danger to the health or safety of the

public, or cannot be reasonably expected

to cause significant, imminent

environmental harm to land, air, or

water resources, the Secretary or

authorized representative shall issue a

notice to the permittee or his agent

fixing a reasonable time but not more

than ninety days from the abatement of

the violation and providing opportunity

for public hearing.

If, upon expiration of the

period of time as originally fixed or

subsequently extended, for good cause

shown and upon the written finding of

the Secretary or his authorized

representative, the Secretary or his

authorized representative finds that the

violation has not been abated, he shall

immediately order a cessation of surface

coal mining and reclamation operations

or the portion thereof relevant to the

violation. Such cesation order shall

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-86-

remain in effect until the Secretary or

his authorized representative determines

that the violation has been abated, or

until modified, vacated, or terminated

by the Sectetary or his authorized

representative pursuant to subparagraph

(a) (5) of this subsection, the Secretary

shall determine the steps necessary to

abate the violation in the most

expeditious manner possible, and shall

include the necessary measures in the

Order.

(4) When, on the basis of a

Federal inspection which is carried out

during the enforcement of a Federal

program or a Federal lands’ program,

Federal inspection pursuant to section

502 or section 504 or during Federal

enforcement of a State program in

accordance with subsection (b) of this

section, the Secretary or his authorized

representative determines that a pattern

of violations of any requirements of

this Act or any permit conditions

required by this Act exists or has

existed, and if the Secretary or his

authorized representative also find that

such violations are caused by the

unwarranted failure of the permittee to

comply with any requirements of this Act

Or any permit conditions, or that such

violations are willfully caused by the

permittee, the Secretary or his

authorized representative shall

forthwith issue an order to the

permittee to show cause as to why the

permit should not be suspended or

revoked and shall provide opportunity

for a public hearing. If a hearing is

requested the Secretary shall inform all

interested parties of the time and place

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of the hearing. Upon the permitte's

failure to show cause as to why the

permit should not be suspended or

revoked, the Secretary or his authorized

representative shall forthwith suspend

Or revoke the permit.

(5) Notices and orders issued

to this section shall set forth with

reasonable specificity the nature of the

violation and the remedial action

required, the period of time established

for abatement, and a reasonable

description of the portion of the

surface coal mining and _ reclamation

Operation to which the notice or order

applies. Each notice or order issued

under this section shall be given

promptly to the permittee or his agent

by the Secretary or his’ authorized

representative who issues such notice or

order, and all such notices and orders

shall be in writing and shall be signed

by such authorized representatives. Any

notice or order issued pursuant to this

section may be modified, vacated, or

terminated by the Secretary or his

authorized representative. A copy of

any such order or notice shall be sent

to the State regulatory authority in the

State in which the violation occurs:

Provided, That any notice or order

issued pursuant to this section which

requires cessation of mining by the

Operator shall expire within thirty days

of actual notice the operator unless a

public hearing is held at the site or

within such reasonable proximity to the

site that any viewings of the site can

be conducted during the course of the

public hearing.

-88-

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-89-

30 USC Sec. 1276. Judicial Review.

(a) (1) ...

(2) Any order or decision issued by the

Secretary in a civil penalty proceedings

Or any other proceeding required to be

conducted pursuant to 5 U.S.C. Sec.

554(1970) shall be suejct to judicial

review on or before 30 days from the

date of such order or decision in

accordance with subsection (b) of this

section in the United States District

Court for the district in which the

surface coal mining operation is

located. In the case of a proceeding to

review an order or decision issued by

the Secretary under the penalty section

of this Act, the court shall have

jurisdiction to enter an order requiring

payment of any civil penalty assessment

enforced by its judgment. This

availability of review established in

this subsection shall not be construed

to limit the operations of rights

established in Section 520.

(b) Findings of Secretary as

conclusive. The court shall hear such

petition or complaint solely on _ the

record made before the Secretary.

Except as provided in subsection (a),

the findings of the Secretary if

supported by substantial evidence on the

record considered as a whole, shall be

conclusive. The court may affirm,

vacate, or modify any order or decision

Or may remand the proceedings to the

Secretary fcr such further action as it

may direct.

[G) ase

(da)

(e)

-90-

sti.

CERTIFICATE

I, David A. Burkhalter, II, a

member of the Bar of the Court, pursuant

to Supreme Court Rule 19 and Rule 28,

hereby certify that I have served Robert

Ss. More, Special Assistant U.S.

Attorney, Department of the Interior, P.

O. Box 15006, Knoxville, TN 37901, and

the Solicitor General, Department of

Justice, Washington, D.C., 20530, with

three (3) true and exact copies of the

foregoing Petition and filed with the

Court forty (40) true and exact copies,

properly addressed to the Clerk of the

Court, by depositing same in a United

States Post office, first-class postage

pre-paid, or with the Knoxville terminal

Federal Express, a corporation offering

overnight delivery of documents 9 and