# Petition for Writ of Certiorari — Bolton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1158

## Text

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

Ss

els q A B Y Supreme Court, U.S,
FILED
Nie. FEB 25 1986
IN THE SUPREME COURT OF THH UM¥tEBicr,
STATES

Meet

October Term, 1985

ee

UNITED STATES OF AMERICA,

Plaintiff/Respondent

PRYOR BOLTON and GLEN McCULLAH
d/b/a PRYOR AND GLEN COAL CO.,
Defendants/Appellants

! PETITION FOR WRIT OF CERTIORARI

SIXTH CIRCUIT

TO THE

UNITED STATES COURT OF APPEAL FOR THE

901
r.0.

David A.
Perry H. Windle, III
Attorneys for Petitioners

Burknalter, II

Bearden Drive

Box

11841

Knoxville, TN 37939-1841
(615) 584-0241

February 24,

1986

as ts a _
Per se :

ie a
: om i =) : : a ~

QUESTIONS PRESENTED

1. Whether the Due Process rights
of the Appellants were violated by an
uncontestable, "final", and
nonbankruptable assessment of nearly
$200,000.00 being imposed on them by the
Office of Surface Mining when they had
never received timely and meaningful
notices of the alleged Notices of
Violations, Cessation Orders and the
Notices of Proposed Assessments during
the time periods when they were entitled
to administrative remedies and when the
‘Office of Surface Mining had actual
knowledge of the lack of service and had
the ability and means to insure notice.

2. Whether the regulations
governing service of Notices of
Violation, Cessation Orders, and Notices

of Proposed Assessments violate Due

Process as matter of law or as applied
under the circumstances of this case.

3. Whether equitable principles
applied to the circumstances of the
instant case preclude the Government
from collecting a civil penalty of
nearly $200,000.00 or whether the
district court may award only a nominal
penalty.

4. Whether the Equal Protection
rights of the Appellants were violated
by the application of the Surface Mining
Control and Reclamation Act of i977, 30
USC 1201. et seq., and implementing
regulations, under the circumstances of
this case.

PARTIES
Petitioners: Pryor Bolton and
Glen McCullah,
d/b/a Pryor and
Glen Coal Company

Respondent: United States of America

TABLE OF CONTENTS

Page
Questions Presented 1
Parties 2
Table of Statutes and Otner
Autnorities 5
Statement of Grounds on wnicn
Jurisdiction Invoked 9g
Statement of tne Case: 10
I. Nature of tne Case, and
Course of Proceedings 10
ki. Statement of tne Facts 14
Argument: Introduction 22
Le Failure of Appellants to
be notified in a timely
and meaningful manner of
the alleged violations
and assessments 23
Li. Unconstitutionality of
tne notice provisions of
30 CFR Sec. 722.14 and
30 CFR Sec. 723.17 28

III. Equitable Principles Bar
tne United States’ Action
In Tnis Case or Justify
Only a Nominal Penalty 53

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STATUTES:

TABLE OF AUTHORITIES

United States Code (USC)

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USC

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11 USC
30 USC
30 USC
30 USC

RULES:

101.
951.
701.
702
703.
704.
705.
706.
523.
1201.
1268.
1271.

66

66

66

- 66

. 66

. 66

- 66

. 67

39
2,10
11,32,59, 66
- 58,61

Rule 4, Federal Rules of

Civii

Procedure. . . 24

REGULATIONS:
30 CFR 715.12. 30
30 CFR 722.14. Passim
30 CFR f23.1T. 500, 30, 33, 3"
30 CFR 723.18. 62
44 FR 48720. 46
45 FR 2626. 31
CASES:
Abbott Laboratories v. Gardner,
. 387 US 136, 87 S.Ct. 1507

L.Ed24 681 (1967). . 66
Henry L. Donerty & Co. v. Goodman,

294 US 628 55 S.Ct. 544 L.Ed

1100 (1935). 42,44
Flexner v. Farson,

248 US 289, 39 S.Ct. 97,

63 L.Ed 250 (1919). ~41, 43
Greene v. Lindsay,

456, US 444, 102 S.Ct. 1874,

72 L.Ed2d4 249 (1982). 36, 37, 39
Hess v. Pawloski,

215 Us Soe, 31 S.Ct« O32,

7t LEA TO9t (1927). 41,42
.Jornson v. Robinson,

STS US 301, 3567, 97, S.Ct. 1160,

1166, 39 L.Ed2d 389, 398 (1974). .67

Lindsay v. Normet,

405 US 56, 76-78, 92 S.Ct. 862,875-
877, 31 L.Ed2d 36, 52-53 (1972). .67

Mattnews v. Eldridge,
ee) a sh ee ee

Mennonite Board of Missions v. Adams,
NO2 Us 791% 103 S.Ct. 2706, 2712,
77 L.Ed2d 180, 188 (1983)... 41,51

Mullane v. Central Hanover Bank &
Trust Co., 339 US 306, 314,
0 S.Ct. 652, 657, 94 L.Ed24
Dee, OTS Viewers « ee tt lw hs 6399, ST

Oil Snale Corporation v. Morton, 370
F.Supp. 108, 125 (D.Colo. 1973). .63

Regan v. Taxation Witn Representation
of Wasnington, 461 US 540,
103 S.Ct. 1997, 76 L.Ed2d
Ce Ss 5p « = & p 6 « « « 65

United States v. American Greetings
Corporation 168 F.Supp. 45
(N.D. OH 1958), 272 F.2d 945
(6tn Cir. 1959). Phe -%

. 64

United States v. Ancorp National
Services, 367 F.Supp. 1221
SG Es 6S es

United States v. Gleamers & Farmers
Cooperative Elevator Co.,
314 F.Supp. 1148 (N.D. Ind. 1970) .53

United States v. Kras,
409 US 434, 93 S.Ct. 631, 34
ae 8 hk 2 ee

STATEMENT OF GROUNDS ON WHICH

JURISDICTION INVOKED

JURISDICTION

The District Court for the Eastern
District of Tennessee, Northern
Division, entered an Order and
Memorandum Opinion granting judgment in
favor of the United States on August 31,
1984. Notice of Appeal was timely filed
on September 20, 1984. The Court of
Appeals had jurisdiction to review the
final decision of the District Court
pursuant to 28 USC Sec. 1291.

Th

(D

Court of Appeals affirmed the
District Court's ruling by a final Order
filed on November 27, 1985. The right
of appeal is not available in this
action.

The Petitioner respectfully seeks

further review of this case by

requesting the

Petition for Writ of Certiorari
b
submitted pursuant to 28 U.S.C. Sec.

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

STATEMENT OF THE CASE

Nature of the Case, Course of

Proceedings and Disposition.

(All references to the record to
the Joint Apendix filed by the parties
with the Court of Appeals.)

The Petition of Pryor Bolton and
ylenn McCullah (hereinafter Appellants
or Bolton or McCullah) arises from a
final judgment on August 31, 1984 by the
United States District Court for the
Eastern District of Tennessee, Northern
Division. Judgment was entered in favor

of the United States for One Hundred

Ninety-Nine Thousand Eight Hundred

: 7 a f Nn mr \ A ; + a + +
Vollars ($199,80 eV. and interest al

the rate at 11.9% per annum from the

Appeals for the Sixth Circuit affirmed
on November 27, 1985.
The Complaint was brought by the

United States on January 3, 1984 for the

Sec. 1268(b)(c)(d) of the Surface Mining

Control and Reclamation Act of 1977,

penalties in the amount of $199,800.00
on two (2) Notices of Violations (J.A.,

p.139,158) and three (3) Cessation

d an answer on March

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had received notice of the Notice of
Violations and Cessation Orders. (J.A.,
p.13)

The trial was set for August 28,
1984, at which time the parties appeared
but no oral testimony was heard. The
Trial Court rendered judgment against
the Appellants on the record and allowed
the parties to supplement the record by
submission of further documentation.
The final order and memorandum was
entered on August 31, 1984. (J.A., p.8)

The Appellants timely fiied a
Notice of Appeal on September 20, 1984.
(J.A., p-23) The parties filed a Joint
Stipulation of Documents for Transmittal
on Appeal. The Sixth Circuit Court of
Appeals affirmed the Judgment on

November 27, 1985.

Statement of the Facts

The facts relevant to this appeal

are set forth in the pleadings,
responses to discovery requests,

exhibits and affidavits filed with the
Court as more specifically set forth
herein and the transcript of proceedings
on August 28, 1984. (References to
Exhibits numbered 1 through 20 refer to
documents attached to the United States'
Request for Admission and an identically
numbered set of documents submitted to
the trial court subsequent to the
hearing on August 28, 1984).

The United States alleged that
Appellants individually and doing
business as Pryor and Glenn Coal Company
conducted a surface coal mining and
reclamation operation in Campbell

County, Tennessee. The United States

issued two notices of violations and

three cessation orders against the
Defendants.

NOV 79-2-12-36 carried with it a
civil penalty in the amount of
$13,500.00 (J.A., p.4). CO 79-2-12-18
carried with it a civil penalty in the
amount of $3,500.00 (J.A., p.4,5) NOV
80-2-10-16 carried with it a_ecivil
penalty of $2,800.00 (J.A., p.3) CO
80-2-10-4 carried with it ae civil
penalty of $135,000.00 (J.A., p.6). CO
80-2-23-14 carried with it a civil

penalty in the amount of $45,000.00

NOV 719 -2-12-36 was issued for
alleged violations on October 10, 1979
(Exh. Y% Plaintiff's Request for
Admissions, hereinafter referred to as

‘ale ao a a ~ ar

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Pl. Ad., J.

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also issued on October 10, 1979 (Exh. 2,

PEsmGe, dehs, pe. 151). NOV 80-2-10-16
was issued for alleged violations on
Mareh 31, 1980 (Exh. 3, Pl.Ad., J.A.,
p.158). CO 80-2-10-4 was also issued on
March 31, 1980 (Exh. 4, Rl.Ad., J.A.,
p.168). CO 80-2-23-14 was issued on May
6, 1960 (Exh. 5, Pl.Ad., J.A., pi182).

Except for the initial NOV's and CO
(Exhs. 1 and 2, Pl.Ad.) which on their
face show attempted personal service,
the United States attempted to
personally serve the Appellants with the
documents on which it based its claims
for civil penalties in the amount of
$199,800.00.

The United States unsuccessfully
attempted to serve the Notice of
Violations, Cessation Orders, Proposed

Notice of Assessments and Final Orders

by mail. (See, generally Defendants'
Request for Admission and the United
States' Response thereto) (J.A.
132). NOV 79-2-12-36 and CO 79-12-18
were addressed to Pryor and Glenn Coal

Company, Route 1, Duff, Tennessee, 37729

and returned "refused". (See,
Defendants’ Request No. 1 and
corresponding response) en
op. 126, 132). NOV 80-2-10-16 was

addressed to Glenn McCullah at 515 WwW.
Elm Street, LaFollette, Tennessee, 37766
and returned “unclaimed" and was also

Ss

4)

nt to the Route 1, Duff, Tennessee,
address and returned "refused." (Request
No. 2 and corresponding response) (J.A.,
p.125, 132). CO 80-2-10-4 was addressed
to Glenn McCullah at the 515 WwW. Elm
Street address and returned "unclaimed"

and was also sent to the Route 1, Duff,

o1Be

Tennessee, address and returned
"refused" (Request No. 3 and
corresponding response) (J.A., pel2T,
132). CO 80-2-23-14 was addressed to
the 515 W. Elm Street address and was
returned “unclaimed" and was also sent
to the Route 1, Duff, Tennessee, address
and was returned with the notation "out
of business" (Request No. y and
corresponding response). The five (5)
Notices of Proposed Assessments on the
NOV's and CO's were all sent to the
Route 1, Duff, Tennessee, address and no
attempt was made even by mail to send
them to the 515 W. Elm Street address of
Glenn McCullah (Requests 4 through 9 and
corresponding responses and Request No.
11 and corresponding response) (J.A.,
p.128,132). The United States admitted

that the envelopes containing Notices of

'
WS
t

Proposed Assessments for the CO
80-2-10-4 and CO 80 -2-23-14 were
incorrectly addressed to "Pryor and

Gleen Coal Company" (Request No. 18 and

corresponding response) (J.-A, pe130,

The Appellants deny being served or
notified of the violations or notices of
assessments upon which the United States
sought and recovered judgment (See
Affidavits of Pryor Bolton P. 1 and
Glenn McCullah Pgs. 1 and 2 filed April
a 1984) (Jehes p.83, 90). The
Appellants also averred that they
dissolved the partnership of Pryor and
Glenn Coal Company after they were
unable to receive permitting for the

mine site in question. (McCullah

Affidavit P. 1 filed September 7, 1984

and Bolton Affidavit P. 1 filed

Ge

September 18, 198%) (JeAe,y D-135, 137).
Further, subsequent to the dissolution
of the partnership, neither Appellant
was authorized to accept service for the
other nor was anyone else authorized to
do so (McCullah Affidavit P. 2, filed
September 7, 1984 and Bolton Affidavit
P. 2, filed September 18, 1984) (J.A.,
5.136, 350)

Appellants averred that they were
not apprised of the United States’
efforts te collect civil penalties when
they appeared in a separate civil action
relating to the same minesite and that
reclamation work required of them was
prevented with the knowledge of the
United States. (Bolton Affidavit Pgs.
1, 4, 6 and McCullah Affidavit Pgs. 1,
3, 4 filed April 27, 1984) (J.A., p.84,

90). Bolton did not know the inspectors

5 on

who claimed to have attempted service on
him. (Bolton Affidavit Pgs. 2, 3 filed
April 27, 1984). McCullah has known one
of the inspectors involved with the
issuance of the notices of violations
and cessation orders but was-) never
contacted by him. (McCullah Affidavit

Pgs. 2, 3 filed April 27, 1984) (J.A.,

ARGUMENT

INTRODUCTION

7 1

The Appellants were never’. served
with the notices of violation, cessation
orders, and notices of assessments and
did not even learn of the notices of
violations and cessation orders until it
was too late to appeal or contest them.
The suit therefore should have been
dismissed.

The United States alleges that the
Appellants violated certain provisions
of the Act relating to a surface mining
operation in Campbell County, Tennessee,
in late 1979 and early 1980. The United
States contends that the Appellants were
issued two (2) separate notices of
violation and three (3) separate

cessation orders for the alleged

violations, but failed to pursue the

administrative remedies provided under
the Act to contest either the fact of
the violation(s) or the amount of
penalties subsequently assessed thereon.

I. Failure of Appellants to be notified

in a timely and meaningful manner of the

alleged violations and assessments.

The United States simply failed to
serve the Appellants with the notice(s)
of violations, cessation order(s), and
notices of proposed assessments for
which the United States received
judgment for civil penalties. Moreover,
the United States failed to make a
serious effort to notify Appellants
despite the fact that United States knew
the addresses of both of the Appellants
and had inspectors that lived in close

proximity to them. (See Affidavits of

ee

Bolton and McCullah filed April 27,
1984) (J.A., p.83,90).

The preferred met’ -d of service in
any judicial or administrative action is
personal service upon the party charged.
For example, Rule 4 of the Federal Ruies
of Civil Procedure requires that a
Summons and complaint be served upon an
individual, personally or by leaving
copies thereof at his dwelling house or
usual place of abode with some person of
Suitable age and discretion then
residing therein or by delivering a copy
of the summons and of the complaint to
an agent authorized by appointment or by
law to receive service of process. FRCP
4(d)(1). A recent amendment to Rule 4
authorises service by mail, but unless
receipt is acknowledged on a form

required for such purpose service must

be made "in the manner. prescribed by

subdivision (d)(1) or (d)(3)." FRCP
u(e)(2)(e)(ii). In this ease, United
States can show no personal service upon
the Appellants nor has it shown that
personal service was even attempted
except for the initial NOV and COQ.
Further, despite the fact that the
notices and orders sent to Appellant
Bolton's address were all returned to
the United States, the United States
continued to use this obviously
ineffective means of "service".

To grant Judgment as a matter of
law under the facts and circumstances of
this case constituted a violation of
Appellants" Due Process rights. it is
elementary that one cannot be held to
answer to defend an action unless duly

notified of the need to answer and

-?6-

defend.

"The fundamental requisite
of due process of law is the
opportunity to be heard’...
This right to be heard has
little reality or worth unless
one is informed that the
matter is pending and can
choose himself whether to
appear or default, acquiesce
or contest. Mullane v. Central
Hanover Bank and Trust Company
339 Us 300, 318, (0 Se Ut.
657, 94 L.Ed 865, 873

An elementary and
fundamental requirement of due
process in any proceeding
which is to be accorded
finality is notice reasonably
calculated, under all of the
circumstances, to apprise
interested parties of the
pendency of the action and
afford them an opportunity to
present their objections.

Id

The April 27, 1984 affidavits of Pryor
Bolton and Glenn McCullah in summary
reveal the following:

& Neither Bolton nor McCullah

were ever personally served by

————

~2¥ «

representatives of the Office of Surface
Mining with the notices of violation,
cessation orders, or proposed
assessments.

2 Neither Bolton nor McCullah
ever knowingly refused any of the
notices of violations, cessation orders,
or proposed assessments.

3. No one was authorized to accept
service on behalf of Bolton or McCullah.

4, Neither McCullah nor_ Bolton
were present at the mine site in
question beyond November 1979. Neither
man authorized or participated in any
activity or disturbance at the _ site
beyond November, 1979.

5. Bolton and McCullah were made
aware too late that notices of
violations and cessation orders had been

issued, and did not learn that penalties

a2be

of nearly $200,000.00 had been assessed
or were being sought from them until the
instant action.

II. Unconstitutionality of the notice

provisions of 30 CFR Sec. 722.14 and 30

Cen 200. 723-17

The regulations governing the
service of notices oof violations,
cessation orders and notices of proposed
assessments and the acts and/or
omissions of the United States in
attempting to serve notice in this case
fail to meet the minimum standards of
due process laid down by the United
States Supreme Court. The manner of
service of notices oi violations and
cessation orders is set forth in 30 CFR
Sec. 722.14, which provides in pertinent
part:

(a) A notice of violation
or cessation order shall be

served on the person to whom
it is directed or his

designated agent promptly
after issuance, as follows:

(1) By tendering a copy at
the Surface Coal Mining and
Reclamation Operation to the
designated agent or person to
whom it is directed. If no
such agent is reasonably
available, a copy may be
tendered to the individual
who, based upon reasonable
inquiry by the authorized
representative, appears to be
in charge of the Surface Coal
Mining and Reclamation
Operation referred to in the
notices or orders. If no such
individual can be located at
the site, a copy may be
tendered to any individual who
appears to be an employee or
agent to whom the order or
notice is issued. Service
shall be complete upon tender
of the notice or order and
shall not be deemed incomplete
because of refusal to accept.

(2) As an alternative to
Paragraph (a) (1) of this
section, service may be made
by sending a copy of the
notice or order by certified
mail or by hand to the person
to whom it is issued or his
designated agent. Service
Snall be complete upon tender

assessment is set forth in 30 CFR Sec.

723.1

part:

Paragraph (a)(1) of Section 722.14

purports to make service complete even

of the notice or order or of
the mail and shall not be
Geemed incomplete because of
refusal to accept.

The manner of serving the proposed

T+ which provides in pertinent

(b) The office shall serve
a copy of the proposed
assessment and a copy of the
worksheet showing the
computation of the proposed
assessment on the person to
whom the notice or order was
issued, by certified mail
within thirty (30) days of the
issuance of the notice or
order. If the mail is
tendered at the address of
that person set forth in the
Sign required under 30 CFR
715.12 (b) or at any address
at which that person is in
fact located, and he or she
refuses to accept delivery of
or to collect such mail, the
requirements of this paragraph
shall be deemed to have been
complied with upon such
tender.

nite

upon the refusal to accept service by an
individual on the mine site, whether
there is any connection shown between
the individual and the person to whom
the violation is directed, whether there
has been any showing that the person
alledgedly in violation is in fact
conducting operations at the particular
mine site, or whether the individual is
authorized to accept service. Under the
provisions set forth in Paragraph (a)(1)
of Section Teese ta an individual
unconnected with the person allegedly in
violation would have neither a duty nor
an incentive to accept service or notify
the alleged violator that he or she was
being charged with violating the Act at
that particular mine site. Such fears
were expressed by persons commenting on

the proposed rule. See, 45 FR 2626,

discussed, infra.

More important are the provisions
of Paragraph (a)(2) of Section 722.14,
which purport to make service ccpdlete
by sending a copy of the notice or order
by certified mail regardless of actual
notification and in the absence of even
an attempt at actual notification.
Further, Paragraph (a)(2) purports to
make service complete upon the tender
and refusal of mail without regard to
the possibility that the name or address
On the mail is incorrect or that the
mail may be refused by any number of
individuals.

A notice of a proposed assessment,
of course, cannot be served on an
alleged violator until a notice of
violation or cessation order has been

issued. See, 30 USC Section 1268(c).

Paragraph (b) of Section 723.17 provides
that certified mail is the only manner
in which a notice of proposed assessment
needs to be served upon an alleged
violator. Paragraph (b) is fatally
defective even though it attempts to be
more explicit that Paragraph (a)(2) of
Section 722.14 as to whom the mail is to
be sent. Paragraph (b) of Section
723.17 first presumes that the person
actually violating the act has posted a
Sign as required under 30 CFR Sec.
715.12(b) and further presumes that such
actual violator has listed his own name
and address.

The omissions of the United States
in this case, by failing to follow up on
known lack of information as to the

actual violators at the mine site in

question and known defects in attemps at

athe

service, serve only to compound the
unconstitutionality of 30 CFR Sec.
722.14 and 30 CFR Sec. 723.17. If the
United States suspected the Appellants
in this case of violating the Act,
personal service upon the Appellants
should and could have been easily
obtained through only a minimal effort.
One of the United States’
authorized representatives in this case
personally knew Defendant McCullah and
resides near the long-established
residences of both Appellants.
(McCullah Affidavit Pgs. 2, 3, filed
April 27, 1984) iJ ashes p.91, 92).
Having failed to make personal service
in this case, and having been notified
from the very beginning that attempted
service by mail was ineffectual, the

United States continued to repeat the

=35=

error witnout furtner inquiry.
Tne classic form of adequate notice
in any proceeding nas been personal

service of written notice. Mullane v.

Central Hanover Bank and Trust Company,

339 US 306, 313, 70 S.Ct. 652, 657 94
L.Ed. 865, 873 (1950). Resort to
substitute1 service sucn as publication
or, tne mails, as in tnis case, is
constitutiionally efficacious only in
cases wnere tne person sougnt to be
warned is missing or unknown. Id. 339
Sei ets. Gott, OF O50, 41.84. eat S75.

Suen is not tne case nere.

Court cases grounded on tne

constitutional due process standards of

Mullane, supra, point to tne
constitutional infirmaties of tne

regulations under review and tne acts

_ e

and omissions of the United States in
this case. Even in cases’ involving
actions on real property, posting of
notice upon the real property itself
does not necesarily satisfy minimum
standards of due process, prticularly if
the realities of the circumstances
involved in the case indicate that

notice has been inadequate. Greene v.

Lindsay, 456 US 444, 102 S.Ct. 1874, 72
L.Ed. 2d 249, (1982). In Greene, supra,
the Court was concerned with eviction
proceedings in which the standard use of
posted notices on apartment doors
frequently proved ineffective and in
which personal service was generally
attempted only once. The Court noted
that in previous decisions, where
"Dractical obstacles to providing

personal service" were invcelved, that it

STs

had “allowed judicial proceedings to be
prosecuted insome situations on_ the
basis of procedures that do not carry
with them the same certainty of actual
notice that inheres in ‘personal
service." Id. US at 449, S.Ct. at 1878,
Leeae &t 255. Quoting Mullane, supra,
the Court further stated that due
process requied that "notice [be]
reasonably calculated, under all of the
circumstances, to apprise interested
parties of the pendency of the action
and afford them an opportunity to
present their objections." Id.

Further, the Court in Greene noted
that the nature of an action has a
"bearing on a constitutional assessment
of the reasonableness of the procedures
employec." Id., US at 450, 451, S.Ct.

at 1978, 1979, L.Ed 2d at 255, 256.

-38-

The character of the action
reflects the extent to which
the Court purports to extend

its power, and thus may
roughly describe the scope of
potentional adverse

consequences to the person
claiming a right to more
effective notice. Bur "{ajll
proceedings like all rights,
are really against persons."
In this case, appellees have
been deprived of a specific
interest in property: indeed
of the right to continued
residence in their homes...
The sufficiency of notice must
be tested with reference to
its ability to inform people
of the pendency of proceedings
that affect their interests.
In arriving at the
constitutionality of a
procedure established by the
state to provide notice in a
particulr class of cases "its
effect must be judged in the
light of its practical
application to the affairs of
men as they are ordinarily
conducted."

Id.

In the instant case, the United

judgment from the Appellants in

States sought and received a money

an

amount which would deprive the

Appellants of every worldly possession,
including their homes, as well as
deprive the Appellants of their very
livelihood. This is more important
since these civil penalties are not
dischargeable in bankruptcy. See, 11
USC 523. The Court went on in Greene to
note that where personal service was
ineffectual "notice by mail may be
reasonably relied upon to provide
interested persons of actual notice of
judicial proceedings." Id. US at 455,
S.Ct. at 1881, L.Ed 2d at 258. However,
the Court made it clear that although
the mail service might be used _ to
"enhance the reliability of an otherwise
unreliable notice procedure", the

"continued exclusive reliance on an

effective means of service is not notice

~40-

‘reasonably calculated to reach those
who cold be easily informed by other
means at hand'." Id.

In the instant case, personal
service was not employed when it easily
could have been obtained. The United
States relied solely on service by mail
despite the fact that each of the
letters was returned marked "refused" or
"unclaimed". The United States never
even attempted to serve McCullah by mail
or otherwise after May of 1980.
Further, in the instant case, it is not
the real property of the Appellants
which is the subject of controversy, but
an action against them personally based
upon mailed notices upon which after the
initial NOV and CO in October 1979 the
United States exclusively relied.

When a proceeding will adversly

eas

oh 1-

affect the liberty or property interest
of a person, notice by mail fails to
meet the minimum constitutional
requirements o due process when it does

not insure actual notice. Mennonite

Board of Missions v. Adams, 462 US 791,

103 S.Ct. 2706, 2712, 77 L.Ed 2d 180,
188, (1983). Given such facts of this
case, the regulations and the United
States' ineffectual attempts at service
pursuant thereto failed to meet the
minimum constitutional requirements of
due process.

Leading cases addressing service of
process by mail generally were decided
in the context of nonresident

corporations or motorists. E.g-, Hess

v. Pawloski, 274 US 352, 47 S.Ct. 632,

71 L.Ed 1091; Flexner v. Farson. 248 US

289, 39 S.Ct. 97 63 L.Ed 250 (1919);

a

Henry L. Dohrety and Co. v. Goodman, 294

US 628, 55 S.Ct. 554 L.Ed 11CO (1935);

Wuchter v. Pizzutti, 276 US 13, 48 S.Ct.

259m 72 L.Ed 446, (1928). In Hess,
supra, the Supreme Court upheld the
constitutionality of a state statute
conferring jurisdiction over a
nonresident motorist by the device of
the nonmotorist's implied consent to the
appointment of a state official for the
acceptance of service of process.
However, critical to the decision in the
Hess case was the following language
included in the statute under review:
-»-Provided, that notice of such
Service and a copy of the process
are forthwith sent by registered
mail by the plaintiff to the
defendant, and the defendant's
return receipt and the plaintiff's
affidavit of compliane herewith are
appended to the writ and entered
with the declaration. The court in
anich the action is pending may

order such continuances as may be
necessary to afford the defendant

aoe

-43-

reasonable opportunity to defend
the action.

Id. US at 354, 356, S.Ct. at 633, L.Ed.
at 1094. Further, a law which purports
to make service complete upon an implied
designated agent, without a provision
providing that the designated agent
shall communicate such notice to the
real defendan, is unconstitutional.

Wuchterv. Pizzutti, supra, US at 19, 48

S.Ct. at 260, 72, L.Ed at 449 (1928).
The fiction of implied consent to
service of process upon an alleged agent
under a statute purportedly authorizing
such service does not apply to
individual nonresidents doing business

in the state. Flexner v. Farson, 248 US

289, 39 S.Ct. Reporter 97, 63 L.Ed. 250
(1919). In Flexner, the Supreme Court
upheld a ruling by the Illinois Supreme

Court declaring a Kentucky statute

DCAD RP GAS CREME REDE A

anus

unconstitutional which purported to

authorize such service and that

a

judgment founded upon such service was

void. Id., US at 293, S.Ct. at 98
ee. 86t | |6255- Thus, as applied t
individual operators, 30 CFR 722.14(a
is unconstitutional under the rational
of Flexner, supra. Quit a differen
situation arises where the defendant ha
established a business and an office i

a particular office, and has registere

T } 7+ wp 12 at = ~ =~ + ro
Under such circumstances, a statut

the Defendant may withstan

constitutional objections becaus

Nn

La

A
A

a)

~

ta

@

ahS =

*..-there is not only reasonable
probability, but practicable moral
certainty that the defendant will
receive actual notice of the pendency of
the action." Id. US at 627, S.Ct. 554,
L.Ed. at 1099. 30 CFR Sec. 722.14 does
not provide with such certainty that
actual notice of an alleged violation
will be given to an operator. The facts
in the instant case show that there was
no agent, real or implied, upon whom
service could be made on behalf of the
Appellants and that in fact Appellants
did not receive actual notice of the
alleged violations, cessation orders and
proposed assessments.

The unconstitutionality of 30 CFR
See. 722.14 is further compounded by the
Office of Surface Mining's total

disregard of the due process

46.

requirements set forth by the United
States Supreme Court in a long line of
decisions, supra, and the agency's
disregard of objections raised to its
provisions based upon the same rationale
expressed by the Supreme Court. The
text of 30 CFR Sec. 722.14 was set forth

as a proposed rule on August 20, 1979.

4y FR 48720. The supplementary
information preceding the full text of
Section 722.14 included the following:

The director, Office of
Surface Mining, has determined
that the proposed modification
is not significant and does
require the preparation of a
regulatory analysis.

The proposed revised
Section 722.14, which conforms
to similar language in the
permanent regulations, Section
843.14, explains in greater
detail the manner for service
of notices of violations,
cessation orders and show
cause orders. It also states
expressly OSM's interpretation
of its existing regulations

icine miele

-47-

regarding service, namely,
that service is complete upon
tender and shall not be deemed
incomplete because of refusal
to accept. Thus, for
instance, a person who refuses
to accept certified mail is
deemed to have been served
with that mail. The revised
Section 722.14 also provides a
mechanism by which agents may
be designated for service of
these notices and orders.
However, service on designated
agents is optional -- the
Office does not have to serve
a designated agent if for
instance, it has served the
person in charge of the
operation.

It seems equally clear that the Office
of Surface Mining's explicit view that
the modifications governing service of
process are "insignificant" have
unconstitutionally tainted the agency's
regulations and actions taken pursuant
to such regulations. The Office of
Surface Mining reiterated its lack of
concern for ‘ice of process when the

final rule was published. 45 FR 2626.

ee Ll
rte

> | Lo vin se

For example, the Supplementary
information preceding the final rule
contained the following language:

»~ee-a person who refuses to
accept certified mail is
deemed to have been served
with that mail. This includes
failure to pick up such mail
at the post office. Service
will be made at the mine site,
where possible, but failure to
do so will not’ invalidate
proper service by mail.

However, under the Supreme Court's due
process decisions, the OSM's
interpretation of "proper service by
mail" is in fact improper and
unconstitutional, and does not provide
for actual notice to the Defendant.
Valid concerns with the provisions of
Section 722.14 were expressed in
comments to the proposed modification to
Section 722.14:
Almost every commenter

objected to the second
sentence of Section 722.14

(a)(1) which permits’ service
on "any individual at the site
who appears to be an employee
or agent of the person to whom

the notice or order is
issued," where the designated
agent or individual who

appears to be in charge cannot

be located at the site. The

commenters felt that service

on such persons often results

in a notice or order being

lost or never being delivered

to a responsible individual

who will take proper action.

Therefore, the office has

changed this subsection.
The supposed change was "pro forma" only
and failed to meet the real concern
expressed by the commenters and failed
to conform the regulation to the
Substantive due process requirement that
the Appellant actually be notified of a
pending action. This is particularly
evident in light of the addition of the
mailing provision added as Subsection

(a)(2), the agency's stated view that

such modifications relating to service

-50-

|

of process were “insignificant" and that
service by mail is complete whether or
not service upon the Defendant or a
purported agent has first been attempted
and whether actual notice was in fact
received under section 722.14(a)(2).

it is clear that the OSM's attitude
and the regulations promulgated in the
shadow of the agency's attitude toward
service of process failed to measure up
to the standards espoused by the Supreme
Court in its decisions:

Beginning with Mullane,
this court has recognized,
contrary to the earlier line
of cases "that an adverse
judgment in rem directly
effects the property owner by
divesting him of his rights in
the property before the
court... In rejecting the
traditional justification for
distinquishing between
residents and nonresidents and
between in rem and in personam
actions, the Court has not
left all interested claimants
to the vagaries of indirect

-51-

notice. Our cases have
required the state to make
efforts to provide actual
notice to the interested
parties comparable to the
efforts that were previously
required only in in personam
actions.

Mennonite Board of Missions v. Adams,

supra, S.Ct. at 2710 n.3, 77 L.Ed2d at
186 n.3, (1983).
Since the instant case is one for

collection of a personal money judgment.

against the Appellants, it is clear that
due process was denied to the Appellants
under the older Supreme Court decisions
reviewing -in personam actions and
certainly under the recent decisions
erasing the due process.’ distinctions
between in rem and in personam actions.
Finally, assuming arguendo, as

alleged by United States, that’ the

D

Appellants were furnished with copies of

the notices of violation and cessation

sO evo

|
UI
PhO
‘

orders as attachments to the complaint
filed in a separate action in the

district court styied United States of

America v. Pryor Bolton and Glenn

McCullah Civil Action No. 3-80-320 it
J >

would be immaterial. First, purported
service by any means other than that
authorized by appropriate rule of law is

ineffectual. Wuchter v. Pizzutti, 276

uSC 13, 2&8, 48 S.Ct. 259, 262, 72 L.Ed
446, 452 (1928). This is even more true

he rule itself is
unconstitutional, as in tne instant
case. Third, since Civil Action No.
3-80-320 was initiated after the time
had run in which the Appellants would
have had the opportunity to request
public hearings and pursue other

administrative remedies under the Act,

such notice would be worthless and

constitutionally ineffective. Such
"notice" would not provide the
Appellants an opportunity to be heard at

a meaningful time and in a meaningful
& 5

‘Tp

manner. Mathews v. Elcridge, 424 U

»- Equitable Principles Bar the United

States' Action In This Case or Justify

Only a Nominal Penalty.

The Government is not immune from
the application of equitable principles.
Where allegations of equitable

Principles are shown to present a valid

defense to an action brought by the
government, summary judgment in favor of

the government is improper. or United

States v. Gleaners and Farmers

Cooperative Elevator Co., 314 F.Supp.

1148 (N.D. Ind. 1970).

————————

-54-

[W]hen the sovereign comes

into court to assert a
pecuniary demand against the
citizen the court has

authority, and is under duty,
to withhold relief to the
sovereign, except upon terms
which do justice to the
citizen or subject as
determined by the
jurisprudence of the forum in
like subject matter between
man and man. The acts or
omissions of its officers, if
they be authorized to bind the
Ynited States or to shape its
czvurse of conduct as to a
particular transaction, and
they have acted within the
purview of their authority,
may in a proper case work an
estoppel against the
government.

Id. at 1150 (citing Walker v. United

States, 139 F. 109, 413(M.D. Ala. 1905).
Justice requires under the facts of the
instant case that the government be
barred from obtaining a money judgment
against the defendants based upon the

equitable principles of estoppel and

laches.

-55-

The Appellants turn now to the
Government's failure to abide by the Act
and its own regulations, its untimely
delay in notifying the Appellants of the
huge amount of the penaities assessed
upon the alleged violations and
cessation orders, and its failure to
apprise the Appellants of its intent to
collect such penalties in previous
litigation between the parties.

A simple review of the Government's
own documents in this case serves to
show the Government's lack of adherence
to the regulations. On October 10,
1979, NOV No. 79-2-12-36 and COQ No.
79-2-12-18 were issued by the Government
naming the Appellants as alleged
violators of the Act. On March 31,
1980, NOV No. 80-2-10-16 and CO No.

80-2-10-4 were issued in the name of the

Appellants. On May 8, 1980, CO No.

80-2-23-14 was issued.

On November 7, 1979, a notice of
proposed assessment of civil penalty in
the amount of $13,500 00 was allegedly
sent to the Appellants for NOV No.
79-2-12-36. Also, on November 7, 1979,
a notice of proposed assessment of civil
penalty in the amount of $3,500.00 was
allegedly sent to the Appellants on CO
No. 79=-2-12-18. On April 21, 1980, a
notice of proposed assessment of civil
penalty in the amount of $2,800.00 was
allegedly sent to the Appellants on NOV
No. 80-2-10-16.

On May 7, 1982, a notice of
proposed assessment of civil penalty in
the amount of $135,000.00 was allegedly
sent to the Appellants- on CO No.

80-2-10-4, over two years after’ the

-57-

issuance of said cessation order. Also,
on May 7, 1982, a notice of proposed
assessment of civil penalty in the
amount of $45,000.00 was allegedly sent
to the Appellants on CO No. 80-2-23-14,
also two years after the issuance of
said cessation order.
The Act requires that:

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... Provided,
That any notice or order issued
purusant to this section which
requires cessation of mining by
the operator shall expire
within thirty (30) days of
actual notice to 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 public hearing.

30 USC Sec. 1271(a)(5). Actual notice

of each notice or order issued is

-58-

required by 30 USC Sec. 1271(a)(5), and
the Appellants were not given actual
notice of the notices and orders under
review in the instant case. It already
has been shown that the implementing
regulations fail to insure that such
actual notice will be given, and in fact
they failed to adhere to the
requirements of the Act under which they
were promulgated.

Likewise, the civil penalties
assessed against the Appellants’ were
assessed in blatant disregard of the
requirements of the Act. Civil
penalties are governed by 30 USC Sec.
1268, which provides in pertinent part:

(b) 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....

-59-

(c) Upon the issue of a
notice or order charging that
a violation or Act has
occurred, the Secretary shall
inform the operator within
thirty (30) days of the
proposed amount of said
penalty...

(Emphasis added).
The United States failed to insure that
the Appellants were given actual notice
of the notices of violation and
cessation orders. Therefore, the
Appellants could not avail themselves of
their right to an opportunity for a
public hearing, and the civil penalties
assessed in this case were issued in
violation of subsection (b) of 30 USC
Sec. 1268. Equally important is the
fact that the OSM did not even attempt
to serve two civil penalties totalling
$180,000.00 on the Appellants” until

fully two (2) years had passed from the

a

-60-

issuance of the cessation orders upon
which the civil penalties were based.
The United States' contention that
the civil penalties are nonetheless
valid because of the Appellants'

involvement in United States v. Pryor

Bolton and Glen McCullah, Civ. Action

No. 3-80-320 (E.D. Tenn., filed July 22,
1980), is without consequence,

particularly regarding the $180,000.00

in civil penalties assessed for
cessation order no. 80 -2-10-4 and
cessation order no. 80-2-23-14. The

notices of proposed assessment upon the
latter cessation orders were not even
issued until nearly two (2) years after
the institution of Civil Action No.
3-80-320.

By the time the Government brought

Civil Action No. 3-80-320, it already

|

nad failed to insure tnat tne Appellants
were given actual notice of tne notices
of violation and cessation orders an’
nad Jeprived tne Appellants of § ai}l
administrative remedies. During tne
course of proceedings in Civil Action
No. 3=+80-320, tne Appellants were lea’

to believe tnat tne United States would

”

eek no furtner action against tne
Appellants base. Jpon tne alleges
violations and cessation orders otner
tnan requiring reclamation work to the
mine site in question. Tne autnority in
effect to waive tne collection of civil
penalties is fully witnin tne purview of
tne Act pursuant to 30 USC sec.

1271(a)(5), wnicn provides in pertinent

part;
...Any notice or order
issue4 pursuant to tnis
section may be modified,

vacated, or terminated by the

een

Secretary or his authorized
repesentative.

See also, 30 CFR Section
723.18(b) (3)( ii)

The Government should not

allowed to collect the oppressive civil

penaities sought in this case.

The Goverment can .be
estopped by the conduct of its
agents within the scope of
their authority. The notion
that the Government is immune
from estoppel is only true
when we are presented with an
attempted estoppel of the
government resulting from the
erroneous, illegal, or
unauthorized acts of its
agents. In tnese situations,
the United States cannot be
estopped.

The policy considerations
behind these estoppel rules
are liked with those providing
the rationale for soverign
immunity. They reflect a
desire to conserve the public
treasury and resources held by
the government for the use and

welfare of us all, from
depletion through the
oversight and error of a few
individuals. But this

laudable husbanding of

ibs.

resources cannot be carried so

far as to permit the
government to deal
ecapriciously with its

citizens.

Concern with this latter
aspect of governmental
estoppel has produced
commentary highly critical of
the harsh rules in this area.
Moreover, an increasin number
of judicial decisions have

demonstrated a changing
attitude in the application of
estoppel against the

government, resulting in its
more frequent availability,
even where the estoppel is

created by unauthorized,
improper, or illegal agents'
acts.

Oil Shale Corporation v.

Morton, 370 F.Supp. 108, 125
(D, COLO. 1973).

Equitable principles applied to the
facts of this case require that the
Government be barred from collecting the
oppressive civil penalties awarded by
the district court.

Further, a refusal to assert

estoppel against the government by no

=

means prevents the court from affording
the Appellants relief based upon the
circumstances which otherwise would
raise the grounds for estoppel. When
estoppel is rejected as to the
government in a civil penalty
proceeding, the circumstances7~ should
entitle the government to nothing more

than a nominal award. United States v.

American Greeting Corp., 168 F.Supp. 45

(N.D. Ohio 1958) aff'd per curiam, 272
F2d 945 (6th Cir. 1959). Finally, the
Defendant's financial ability to pay any
penalty is a factor for the court's
consideration in determining the amount

of any penalty. United States v. Ancorp

National Services, 367 F.Supp. 1221

(S.D.N.Y. 1973).
Therefore, the trial judge was

misinformed by counsel for the United

-65-

States when he inquired about his
discretion involving the amount of the
penalty at the hearing August 28, 1984.
Cera 49).

IV. Equal Protection Argument

Under the circumstances of this
case, the Government cannot defeat an
equal protection attack Simply by
meeting the rational basis test.
Because of the fundamental rights which
have been interferred with ae strict

scrutnity analysis necessary. Regan v.

Taxation With Representation Of

Washington, 461 US 540, 103 S.Ct. 1997,

76 L.Ed2d 129 (1983). The implementing
regulations on their face and as
applied, relating to the fundamental
rights of notice and the opportunity to
be heard, cannot withstand a

constitutional challenge, whether based

~66-

upon a rational or ae strict scrutiny
analysis.

Further, the prepayment provision
of 30 USC Sec. 1268(c) is invalid on its
face and as applied to the circumstances
of the instant action. The presumption
and policy in favor of reviewability of
agency action is very strong. Abott

Laboratories v. Gardner, 387 US 136, 87

S.Ct. 1507, L.Ed2d 681 (1967). The
Department of Interior is an executive
department specifically subject to
review under the Administrative

Procedure Act. See, 5 USC Sec. 101,

Sec. 551, and Section 702. Section
1268(c) of title 30 restricts access to
the courts unreasonably and is in
conflict with the statutory presumption
of review given to all litigants coming

within the purview of 5 USC Sections 701

~67-

through 706.

Although the words of a particular
statute may presumptively preclude
review of certain facts or conclusions,
a constitutional challenge to the
statute upon which agency action is
predicated is not barred because of such

presumptive unreviewability. Johnson v.

Robison, 415 US 361, 367, 97 S.Ct. 1160,
1166, 39 L.Ed2d 389, 398, (1974).
Prepayment in full of a civil penalty as

a condition to receive review of alleged

arbitrary, capricious, illegal or
unconstitutional agency action, is an
undue burden on the defendants’

Statutory right to review and cannot be

Sustained. Lindsay v. Normet, 405 US

56, 76-78, 92 S.Ct. 862, 875-877, 31
L.Ed2d 36, 52-53 (1972).

In effect, the prepayment

-68-

provisions of the Act create an invalid
distinction between alleged violators
who can afford to pay the full amount of
an assessed civil penalty and are -
allowed judicial review and those who
cannot afford to pay and, therefore, are
barred from seeking redress. The
legitimate interest the Government may
have in conditioning access to the
courts on prepayment of filing fees in
order to defray the cost of
administration is not served by
requiring prepayment of a civil penalty.
A filing fee may be raised relatively
easily regardless of financial condition
and is a mere pittance in comparison
with a civil penalty of $200,000.00.
Therefore, cases upholding payment of
filing fees even from indigent persons

are inapposite. see, Cokes United

-69-

States v. Kras, 409 US 434, 933 S.Ct.

631, 34 L.Ed2d 626 (1973).

Equally in opposite are cases
upholding requirements that alleged tax
liability be prepaid in order to
challenge the assessment of the
challenged amount. In such cases, there
is a strong presumption that the
disgruntled taxpayer has financial
resources necessary to make prepayment
because the liability itself is based
upon the income or assets of the
taxpayer. A civil penalty in no way
reflects the alleged violator's ability
to pay. Likewise, conditioning access
to the court upon prepayment of a full
civil penalty without providing an
alternative for one who cannot afford to
prepay is a violation of equal

protection. Such a failure is a

deprivation of
Significant right
process context,

impermissable.

a
and,

is

fundamental and

as in the due

constitutionally

afi

CONCLUSION

For the foregoing reasons, it

is

respectfully requested that the Petition

be granted.

RESPECTFULLY SUBMITTED, this

D4 - aay of Kovuem , 1986.

VID A. KHALTER, II
Attorney for Appellants
P. O. Box 11841

901 Bearden Drive
Knoxville, TN 37939-1841
(615) 584-0241

the

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APPENDIX

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INDEX TO A”°PENDIX

Opinion of Court of Appeals

Memorandum & Order of District
Court Filed 05/24/84

Memorandum & Order of District
Court Filed 08/31/84

United States Constitution:
Amendment Five

28 USC Sec. 1254(1)
28 USC Sec. 1291

28 USC Sec. 2101(c)
30 USC Sec. 1268(b)
30 USC Sec. 1268(c)
30 USC Sec. 1268( 4d)
30 USC Sec. 1271(a)

Rule 56, Federal Rules
of Civil Procedure

Page

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellee,
7.

PRYOR BOLTON and GLEN McCULLAH
d/b/a PRYOR AND GLEN COAL CO.,

Defendants/Appellants.

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ORDER

BEFORE: MARTIN, JONES and WELLFORD,

Circuit Judges.

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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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(i) eeee

-128-

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

(a) Notice; Federal
inspection; waiver; cessation order;
affirmative obligations; hearing;
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 viclation 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 inspection
is proposed to be carried out and such
person shall be allowed to accompany the

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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
whatever steps the Secretary deems
necessary to abate the imminent danger
or the significant environmental harm.

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(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 cessation order. shall
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

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(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
authoried 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
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) Netices and orders issued

a ae e-em

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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 snall 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.

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CERTIFICATE

I, David A. Burkhalter, ik, a
member of the Bar of the Court, pursuant
to Supreme Court Rule 19 and Rule 28,
hereby certify that I have served Robert
S- More, Special As’sistant 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 the United
States Post Office, first class postage
prepaid, or with the Knoxville terminal
of Federal Express, a corporation
offering overnight delivery of docugents

and Ko articles, this the ” ag | day

of Ad 13 » 198

a

HALTER, II

STATE OF TENNESSEE
COUNTY OF KNOX

SUBSCRIBED and sworn to before
me this the Q4YW day of A-ha ;

1986. ) WA

NOTARY PUBLIC

My Commission Expires: j-2/- NF

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1523%3A1. Public record. Not legal advice.