Petition for Writ of Certiorari — Bragg v. West Virginia Coal Ass'n

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| Court, U.S.

Y TLE

Ot 619 ocr 1 1 2001

No. 01 Og FICE OF THE CLERK

IN THE

Supreme Court of the United States

PATRICIA BRAGG, et al.,

Petitioners,

WEST VIRGINIA COAL ASSOCIATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Joseph M. Lovett

Mountain State Justice,

Inc.

922 Quarrier St.,

Suite 525

Charleston, WV 25301

(304) 344-3144

Patrick C. McGinley

737 South Hills Drive

Morgantown, WV 26505

(304) 292-9822

James M. Hecker

(Counsel of Record)

Arthur H. Bryant

Trial Lawyers for Public Justice, P.C.

Suite 800

1717 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 797-8600

Suzanne M. Weise

P.O. Box 343

Morgantown, WV 26507

(304) 292-9822

Counsel for Petitioners

i5lep

~~ =

ieteaeineteel patna ee eee

Question Presented

Petitioners, aggrieved by mountaintop removal coal mining

in West Virginia, brought this citizen suit for prospective

declaratory and injunctive relief against a state official under §

520(a)(2) of the Surface Mining Control and Reclamation Act

(SMCRA), 30 U.S.C. § 1270(a)(2), for violating his

nondiscretionary duties under both § 510 of SMCRA, id. §

1260, and under West Virginia’s federally-approved state

regulatory program, which is codified in the Code of Federal

Regulations. Federal government officials were also parties

below and argued that federally-approved state programs are

enforceable as federal law, consistent with the long-standing

position of the U.S. Department of the Interior.

The Fourth Circuit held that, once a state program is federally

approved, it operates solely under state law, and federal -

regulatory authority under SMCRA “drops out.” As a result, the

Fourth Circuit dismissed Petitioners’ suit, holding that the

doctrine of Ex parte Young, 209 U.S. 123 (1908), did not apply

because that exception to a state’s Eleventh Amendment

immunity only applies to violations of federal, not state, law.

The question presented is:

Under SMCRA and the doctrine of Ex parte Young, may a

private plaintiff seek prospective injunctive and declaratory

relief against a state official in federal court to enforce

compliance with either § 510 of SMCRA, which requires the

state to adhere to its federally-approved state program, or with

a provision of such a state program, which is codified in the

Code of Federal Regulations?

Parties to the Proceeding

1. Petitioners are Patricia Bragg, James W. Weekley, Sibby

R. Weekley, Cheryl Price, Jerry Methena, and the West Virginia

Highlands Conservancy. Petitioners were plaintiffs in the

district court and appellees in the court of appeals.

Pursuant to Rule 29.6, the West Virginia Highlands

Conservancy states that it has no parent corporations or

subsidiaries.

Tommy Moore, Victoria Moore, Harry M. Hatfield, and

Marcia Hatfield were dismissed as plaintiffs in the district court

and are not petitioners in this Court. Carlos Gore, and Linda

Gore were plaintiffs below and are not petitioners in this Court.

The Kentucky Resources Council and Friends of the Earth

appeared as amici curiae in support of petitioners in the court

of appeals.

2. Federal respondents are Colonel John Rivenburgh, District

Engineer, U.S. Army Corps of Engineers, Huntington District;

Lieutenant General Robert B. Flowers, Chief of Engineers and

Commander of the U.S. Army Corps of Engineers; and Michael

D. Gheen, Chief to the Regulatory Branch, Operations and

Readiness Division, U.S. Army Corps of Engineers. In the

district court, Colonel Rivenburgh’s predecessor, Colonel Dana

Robertson, and Lieutenant General Flowers’ predecessor,

Lieutenant General Joe M. Ballard, were defendants. Federal

respondents were defendants in the district court and appellants

in the court of appeals.

The state respondent is Michael Callaghan, Secretary, West

Virginia Department of Environmental Protection. Secretary

Callaghan and his predecessors, Michael Miano and Michael C.

Castle, were defendants in the district court and appellants in

the court of appeals in all appeals except Nos. 00-1338 and 00-

1339, where they were appellees. These two appeals related to

the validity of a consent decree between petitioners and the

se me

state respondent. j

Additional respondents are the West Virginia Coal

Association, West Virginia Mining and Reclamation

Association, Hobet Mining, Incorporated, Catenary Coal

Company, Mingo-Logan Coal Company, Western Pocahontas

Properties Limited Partnership, National Council of Coal

Lessors, Incorporated, and International Union, United Mine

Workers of America. These parties were intervenor-defendants

in the district court and appellants in the court of appeals.

The National Mining Association, AEI Resources, Inc.,

Washington Legal Foundation, Allied Educational Foundation,

Interstate Mining Compact Commission, and Commonwealth

of Virginia appeared as amici curiae in support of appellants in

the court of appeals.

ill

Table of Contents

Questions Presented ........ | pees ia a tae i

Parties to the Proceeding ............ Ceaeeetrs teeeke il

See ED io wik.ng eid ce NCES CBee koewen vi

FP EET PEER EP Sa viceuns ]

PS a Riveter sk cae eee eee 1

Constitutional and Statutory Provisions Involved ........ 2

SI kb. dR eh ees ee eek 2

Reasons for Granting the Petition ................... 14 |

I. The Court of Appeals’ Decision Conflicts With Ex

parte Young and Coeur d’Alene by Rejecting an

Explicit Grant of Federal Court Jurisdiction to

Enforce a Violation of a Federal Statute and By

Relying on the Availability of a State Court

eR ee re rere ere r Tree 14

II. The Court of Appeals’ Decision Presents an

Important Issue of Federal Law Concerning the

Enforceability of Federally-Approved State

Programs Under SMCRA ...........-.-+--0ee- 17

Il. The Court of Appeals’ Decision Conflicts with

Arkansas v. Oklahoma and with Numerous Federal

Court Decisions Concerning the Enforceability of

Federally-Approved State Programs under Federal

Se eT ee

Statutes Based on “Cooperative Federalis. = ----- 23

IV. The Federal Court of Appeals and the West Virginia

Supreme Court of Appeals Have Reached Opposite

Conclusions Concerning the Enforceability of West

i Virginia’s State Program under SMCRA ...------: 29

Conclusion ...-----+*9°°*" Suh uere ee nee ee 30

Te EN salle vated ee RD la

SEE ss Serevent err 30a

SE ashe 48a

EE acre 90a

BNE acne tert ee 94a

Pe Sr, os Li ieee eae 96a

Table of Authorities

Cases: Page:

Acme Printing Ink Corp. v. Menard, 881 F. Supp. 1237

CED: Ws Tae erie AH oe S5 56 66 0 08 27

American Lung Ass'n v. Kean, 871 F.2d 319 (3d Cir.

bP er Se 28

American Paper Institute v. American Electric Power

Service Corporation, 461 U.S. 402 (1983) .......... 18

Antco, Inc. v. Dodge Fuel Corp., 550 S.E.2d 622 (W.Va.

Ae i Seep OS a ee 29

Arkansas v. Oklahoma, 503 U.S. 90 (1992) ........... 24

Ashoff v. City of Ukiah, 130 F.3d 409 (9" Cir. 1997) .... 27

Bragg v. Robertson, 54 F. Supp.2d 635 (S.D.W.Va. 1999) . 8

Canestraro v. Faerber, 374 S.E.2d 319 (W.Va. S.Ct.

19GG) . . «66st ee ee ei won ys 29, 30

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .... 21

City of Heath y. Ashland Oil, Inc., 834. F. Supp. 971

(S.D. Olea Fe er eee ewww eases 27

Clorox Co. v. Chromium Corp., 158 F.R.D. 120 (N.D.

1) Re bs: re Sh Oe oe er 27

David D. v. Dartmouth School Committee, 775 F.2d 411

C1" Cle. BORG a ora ocx a vans 28

DK Excavating, Inc. v. Miano, 549 S.E.2d 280 (W.Va.

3.Ct, SORE) sven weep east es bau eee uae 29

EPA v. California, 426 U.S. 200 (1976) .............. 26

Espinosa v. Roswell Tower, Inc., 32 F.3d 491 (10th Cir.

J9D6) ... supa cing Gene Sea aws «i eS 2

Evco Associates, Inc. v. C.J. Saporito Plating Co.,

1995 WL 571438 (N.D. Ill. 1995) ................. 27

Ex parte Young, 209 U.S. 123 (1908) ........ 9, 13-18, 26

Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir.

Ly, |) re a ee 28

Geis v. Board of Education of Parsippany-Troy Hills, 774

PDO STS CEC. 1GGS) occ cccsvcccicvcscevvevces 28

Glazer v. American Ecology Environmental Services

Corp., 894 F.Supp. 1029 (E.D.Tex. 1995) .......-..-. 27

Haydo v. Amerikohl Mining, Inc., 830 F.2d 494 (3d Cir.

Ras > ctdoeceecbecessOscdkysveveveteses¥esese 26

Her Majesty the Queen v. City of Detroit, 874 F.2d 332

Se SUED ees ce dceeversessereveussees eek 27

Hodel v. Virginia Surface Min. & Reclam. Ass'n, 452 U.S.

NEINEED sc vecectadevecdtensevasssetvivceeseres 3

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) .13, 14, 16

Illinois Bell Tel. Co. v. Worldcom Tech., Inc., 179 F.3d

566 (7" Cir. 1999), cert. granted, 121 S.Ct. 1224

SED 6b s dod cede devsvstbssincatscdnertveverss 17

LN'S. v. Cardoza Fonseca, 480 U.S. 421 (1987) ........ 22

In re Permanent Surface Mining Regulation Litigation,

653 F.2d 514 (D.C.Cir. 1981) .......ccccecccecees 25

L.E.A.D. (Lead Environmental Awareness Development)

v. Exide Corp., 1999 WL 124473 (E.D.Pa. 1999) ..... 27

Long Island Soundkeeper Fund, Inc. v. New York Athletic

Club of City of New York, 1996 WL 131863 (S.D.N.Y.

eli sued esehedecessdesetesn vs ateveeer's 27

Lowe v. SEC, 472 U.S. 181 (1985) ........-eceeeeees 21

Luckie v. Gorsuch, 13 ELR 20406 (D.Ariz.1983) ....... 27

Lutz v. Chromatex, Inc., 725 F. Supp. 258 (M.D. Pa.

Pe err errr Tee eT Tree Te eek 27

Miccosukee Tribe of Indians v. United States, 105 F.3d

Ol gto ee a ree 24

Molinary v. Powell Mountain Coal Co., Inc., 125 F.3d

ee err 12, 22, 25, 26

Murray v. Bath Iron Works Corp., 867 F. Supp. 33

CR Os CUED Fb oe Kec co cedcctwccevecrsvcscesses 27

National Mining Ass'n v. DOI, 70 F.3d 1345 (D.C.

2 Ta ee erry ee ree ee ee 19

New York v. U.S., 505 U.S. 144 (1992) ..........--4-- 23

Vii

NRDC v. California DOT, 96 F.3d 420 (9" Cir. 1996) ... 26

Pennhurst State School & Hospital v. Halderman, 465

RE CNG. 0b nbs dbunn eke aaeeers 3, 13, 15-16

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ......... 15

Sierra Club v. Chemical Handling Corp., 824 F.Supp.

Se EIE IIE cies oN nuda ad eect aewne ss 1 27

Southern Ohio Coal v. OSM, 20 F.3d 1418 (6" Cir.

lis coh e shad anbinoecnubek ionud ened kta 23

Thompson v. Thomas, 680 F.Supp. 1 (D.D.C.1987) ..... 27

Union Electric Co. v. EPA, 515 F.2d 206 (8" Cir. 1975),

Tg Reise Ry fs | ere ares are 28

West Virginia Highlands Conservancy v. Norton, 147 F.

Supp.2d 474 (S.D.W.Va. 2001) ................ 12, 18

Williamsburgh-Around-the-Bridge Block Assn. v. Jorling,

1989 WL 98631 (N.D.N.Y. 1989) ..............-.- 27

Statutes:

6 8 RE | = See rer nr reer re 28

a NE hao va Wd wdis douse suas eniaeneiees 28

es ee ee 3 5s ewe ice dada ven peevsaenes 2

I ans ss si ewe rab eh wee mien eT ey 3

i coe Let deuce ne tad ean e enue 3

ns ED o's i's coc tue edck nea wae eee bawes 6

ae I 6 Wikb vie ebb bed ei eh eeenete 3, 4, 25

ae SEED wet bc hie use eh epieanbesonaes 4

ees EE i 0 6 6 6650490 0808 ceded ee rede 4

ee OE 6:5 6k a nk co aa eke ec bob eneeees 4

ee EE bik died ack anKR KARR eee 19

Ree EE oo vee bbe eek dc On bkunen mao 4

eee PE ia bind dkoone se ewes 3, 12, 14, 15, 17

a OE vo eee cnd chicane sens 4, 9, 15, 16, 24

ease REE: Kas bo decterdcess ane oawennon 7

eee OE 5c db ors abe ho neue deeeeven 7

as a ha es a eka oad 6, 12, 16

NT Ns ss da dendencneie ees 5

FO UA 8 IAF occ cccccseeerevescocvns 6, 15-18

PPA, BURTOD bres cdeviccsdvceseevneseestene 26

FOU G. SIZIHMME) cecccccetcvcvcvedsccsseesess 19

POR TD ovis cecebeceusececeneexsasepens 20

PE oUF Fa Rec cdderecvsnccencsvsetreds 20

pg Feat Gey. + | ee rr mmr trae 20

Fe ee FREED 6h bh cbc ce cinvccviventsmesens 20

BP Soe Bs | eT errr rer rr rrr rr ree 16

Fe ie EERE 6 os Beebe Kees iaeece ceerecysees 4

Fs ARE 6 oo ood o ne hd cerwconsPerevecunne 4

pba Pe a | er re rrr ers ree rr 24

FP es EUS Fi vib so cdecoedever ees eerre see 16

SEU BA SOMA ccc ctececsrcsvencseceeess 27

AS Ta | a errr eT er ree errr ee 27

oO. Code € 22-S-TGIOMT) nc ccc ccccccveces 12, 15

Regulations:

Pe Oe TREE 6s cceseteercenvieewreenenees 24

Dae ST bh chic ec ccedcccevedecnceeiseneetes 7

coe £ SR: | er rere re 19

poe fe ere Perr re rrr 6, 24

Dea PUGET 6 bao Keb cd rove deteervessseiuesees 7

py Bk er ee ere res errr err ere 6

poles Sk Or re rr rrr ere Tre ey. 6

pola 2g RL 8. rr Serr er eer. reer 7, 24

PS ID ak Fi oc rescued deck venseaei ee cureres 7

MGs OS PAMEE Sen tncecteeesereésereceneetes 24

\ 44 Fed. Reg. 14902 (Mar. 13, 1979) ...........---00-- 5

49 Fed. Reg. 38874 (Oct. 1, 1984) ............-.-.4.. 20

52 Fed. Reg. 21598 (June 8, 1987) ............---05- 20

53 Fed. Reg. 26728 (July 14, 1988) ............---.0-- 6

Legislative Materials:

123 Cong. Rec. 15581 (1977) .......... Rive enieerninn 22

S. Rep. No. 128, 95" Cong., 1" Sess. (1977) ......... 6, 20

Miscellaneous:

Brief for Petitioner, O.T. 1991, No. 90-1266 ........... 23

Energy Information Administration, Coal Industry

ME FUP he ocencccce bene dae ees skeen 21

Office of Surface Mining, Annual Report (2000) ....... 20

Petition for a Writ of Certiorari

Petitioners Patricia Bragg, James W. Weekley, Sibby R.

Weekley, Cheryl Price, Jerry Methena, and the West Virginia

Highlands Conservancy (Bragg) respectfully petition for a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Fourth Circuit in this case.

Opinions Below

The opinion of the court of appeals (App. A, la-29a)

dismissing Counts 2 and 3 of Bragg’s complaint is reported at

248 F.3d 275. The opinion of the district court denying the

state respondent’s motion to dismiss those and other Counts for

lack of subject matter jurisdiction (App. B, 30a-47a) is

unreported. The opinion of the district court granting Bragg’s

motion for summary judgment and a permanent injunction on

Counts 2 and 3 (App. C, 48a-89a) is reported at 72 F. Supp.2d

642. The opinion of the district court granting a stay of that

injunction pending appeal (App. D, 90a-93a) is reported at 190

F.R.D. 194.

The district court also issued several opinions on other claims

that are not the subject of this petition. The opinion granting

Bragg’s motion for a preliminary injunction against the federal

and state Respondents on Counts 2, 3, 6, 8, 9, 14, and 15 is

reported at 54 F. Supp.2d 635, granting Bragg’s motion to

dismiss Counts 1, 11, 12 and 13 based on a settlement

agreement with the federal Respondents is reported at 54 F.

Supp.2d 653, and granting a joint motion of Bragg and the state

Respondent to enter a Consent Decree on Counts 4 through 10,

14, and 15 is reported at 83 F. Supp.2d 713.

Jurisdiction

The judgment of the court of appeals was entered on April

24, 2001. The court of appeals denied timely petitions for

rehearing and rehearing en banc on July 13, 2001. App. E, 94a-

95a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The Eleventh Amendment to the Constitution of the United

States, and relevant sections of the Surface Mining Control and

Reclamation Act (SMCRA), 30 U.S.C. §§ 1201, et seq., federal

implementing regulations under SMCRA, and West Virginia’s

federally-approved state program under SMCRA are reprinted

at App. F, 96a-11 1a.

Statement

1. Mountaintop Removal Mining and This Lawsuit. This

case concerns the environmental protections under SMCRA for

“valley fills” created by mountaintop removal (MTR) mining.

In MTR mining, entire mountains are blasted away to recover

coal, and the waste dirt and rock (“excess spoil’) not returned

to the mountain is often dumped into adjacent valleys and

streams. A single valley fill may be over 1,000 feet wide,

hundreds of feet deep, and several miles long. Hundreds of

miles of West Virginia streams have been buried by valley fills

and thousands of acres of forested valleys have been leveled.

The U.S. Fish and Wildlife Service has found that “the loss of

these streams and their associated forests may have ecosystem-

wide implications.”

Petitioners, who live and recreate near these mines, brought

this suit for prospective declaratory and injunctive relief against

a West Virginia state official under SMCRA and against federal

officials under the Clean Water Act and National

Environmental Policy Act. The claims against the federal

officials were settled. Petitioners allege that the state official

violated his nondiscretionary duty to comply with both § 510 of

a Cee ee Oe

SMCRA, 30U.S.C. § 1260, and with a federally-approved state

rule under SMCRA that prohibits the destruction of intermittent

and perennial streams. The district court ruled that (1) the state

rule, approved by the federal government pursuant to SMCRA,

was federally enforceable, (2) Petitioners’ suit fell within the

Ex parte Young exception to Eleventh Amendment immunity,

and (3) the state official had systematic-ally violated both § 510

and the state rule’s mandatory require-ments. On appeal, the

federal defendants agreed with the district court’s decision as to

jurisdiction and liability. However, the court of appeals reversed

on jurisdictional grounds without reaching the merits, holding

that the state rule was purely state law and that, under

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89

(1984), the Eleventh Amendment barred citizens from

enforcing § 510 and any portion of a federally-approved state

program under SMCRA in federal court against a state official.

2. Statutory Background. Congress enacted SMCRA in

1977 to establish minimum national standards to govern coal

mining operations. 30 U.S.C. § 1202. SMCRA is administered

through the U.S. Department of the Interior by the Office of

Surface Mining Reclamation and Enforcement (OSM). Jd. §

1211. To achieve its goals, SMCRA relies on “a program of

cooperative federalism that allows States, within limits

established by federal minimum standards, to enact and

administer their own regulatory programs, structured to meet

their own particular needs.” Hodel v. Virginia Surface Min. &

Reclam. Ass’n, 452 U.S. 264, 289 (1981). Any state “wishing

to assume exclusive jurisdiction over the regulation of surface

coal mining and reclamation operations” on non-federal lands

within its borders may submit a proposed state program to OSM

for approval. Jd. § 1253(a) (App. 96a).

A State that submits a State program to OSM for approval

must “demonstrate[] that such State has the capability of

carrying out the provisions of this Act . . .” Jd. To do this, the

state must enact a law that regulates surface coal mining “in

accordance with the requirements of this Act,” id., § 1253(a)(1)

and (a)(3), and must establish a permit system “meeting the

requirements of this title,” id., § 1253(a)(4) (App. 97a). Once

the state agency’s program is federally approved, the agency

becomes the “State regulatory authority,” which is defined as

“the department or agency in each State which has primary

responsibility at the State level for administering this Act.” Id.,

§ 1291(26) (emphasis added) (App. 105a). The “regulatory

authority” is further defined to mean “the State regulatory

authority where the State is administering the Act under an

approved state program or the Secretary where the Secretary is

administering this Act under a Federal program . . .” Jd., §

1291(22) (emphasis added) (App. 105a).

Section 506(a) of SMCRA provides that no person shall

engage in any surface coal mining operations without obtaining

_ apermit issued by a state with an approved program or by OSM

pursuant to a federal program. 30 U.S.C. § 1256(a) (App. 98a).

In turn, § 510(b)(1) provides:

No permit . . . shall be approved unless the application

affirmatively demonstrates and the regulatory authority finds

in writing . . . that—

(1) the permit application is accurate and complete and

that all the requirements of this Act and the State or

Federal program have been complied with.

Id., § 1260(b) (App. 99a) (emphasis added). Thus, this federal

statute requires a state to adhere to SMCRA and its approved

state program. An OSM regulation confirms this federal duty:

“[s]tates with an approved program shall implement,

administer, enforce and maintain it in accordance with the Act,

this chapter, and the provisions of the approved state program.”

30 C.F.R. § 733.11 (App. 106a) (emphasis added). If a state

eS ee ee ee ee

Le a ee EE ES

does not adhere to SMCRA and its program when it issues a

mining permit, then that federal statutory duty to adhere to the

state program is violated.

Since its first substantive rulemaking under SMCRA twenty-

two years ago, OSM has consistently construed the provisions

of approved State programs as federal law enforceable in

federal court. With specific reference to the SMCRA citizen

suit provision at issue here, OSM stated that:

_.. the Act’s State programs, while adopted in the first

instances by the States, will also become Fi ederal law when

approved by the Secretary of Interior, being approved as

Federal regulations and enforceable as such in the United

States courts. Section 520(a) SMCRA; 30 U.S.C. Section

1270(a).

44 Fed. Reg. 14902, 15023 (Mar. 13, 1979) (emphasis added).

OSM reiterated this interpretation nine years later:

Before the Secretary may approve a state program, the state

program must be consistent with, and cover the same ground

as, the federal Act and regulations. While adopted in the first

instance by a state, a state program becomes Federal law

when approved by the Secretary and promulgated as Federal

regulation. (44 FR 15023, March 13, 1979.) The State

program must be “no less stringent than, meet the minimum

requirements of, and include all applicable provisions of the

Act” and be “no less effective than the Secretary's regulations

in meeting the requirements of the Act.” 30 CFR 730.5 and

732.15(a). Federal standards imposed by the Act are thus

enforced through the state program.

53 Fed. Reg. 26728, 26737 (July 14, 1988) (emphasis added).

In section 520 of SMCRA, Congress authorized citizens to

bring civil actions to enforce SMCRA’s requirements. See 30

U.S.C. § 1270 (App. 99a). In particular, Congress authorized

citizens to sue State regulatory authorities in federal court “to

the extent permitted by the eleventh amendment to the

Constitution where there is alleged a failure of the . . . State

regulatory authority to perform any act or duty under this Act

which is not discretionary with the . . . State regulatory

authority.” Jd., § 1270(a)(2) (App. 100a). Congress “believe[d]

that citizen suits can play an important role in assuring that

regulatory agencies and surface operators comply with the

requirements of the Act and federally-approved regulatory

programs.” S. Rep. No. 128, 95" Cong., 1 Sess. 88 (1977).

3. West Virginia’s Federally-Approved State Program. On

January 21, 1981, OSM approved the West Virginia Surface

Coal Mining and Reclamation Act, 30 C.F.R. § 948.10, giving

West Virginia jurisdiction to regulate surface coal mining

within its borders. The West Virginia Division of

Environmental Protection (DEP) is the state regulatory authority

that administers the West Virginia state program.

Congress authorized OSM to “publish and promulgate such

rules and regulations as may be necessary to carry out the

purposes and provisions of’ SMCRA. 30 U.S.C. § 1211(c)(2).

Pursuant to this authority, OSM adopted a rule providing that

“(t]he program applicable within each State is codified in the

part for that State.” 30 C.F.R. § 900.11 (emphasis added) (App.

108a). OSM codified West Virginia’s entire federally-approved

program in the Code of Federal Regulations. Jd. Part 948. That

part fills over a dozen pages and “contains all rules applicable

only within West Virginia that have been adopted under

[SMCRA].” Id. § 948.1 (App. 109a). |

The West Virginia state program includes a so-called “buffer

zone rule.” At the time this case was decided, that rule provided

that:

No land within one hundred feet (100) of an intermittent or

perennial stream shall be disturbed by surface mining

operations including roads unless specifically authorized by

the Director. The Director will authorize such operations

only upon finding that the surface mining activities will not

adversely affect the normal flow or gradient of the stream,

adversely affect fish migration or related environmental

values, materially damage the water quantity or quality of the

stream and will not cause or contribute to violations of

applicable State or Federal water quality standards. The area

not to be disturbed shall be designated a buffer zone and

marked accordingly.

38 C.S.R. § 2-5.2 (App. 111a).’ OSM approved this rule in

1990 and 1996, and specificaliy referenced it, by chapter and

section number, in the Code of Federal Regulations. 30 C.F.R.

§§ 900.12, 948.15 (App. 109a-110a).

4. Proceedings Below. Petitioners Patricia Bragg, seven other

coalfield residents who live near MTR mines and valley fills,

and a statewide environmental organization (collectively

referred to hereafter as “Bragg”), filed a citizen suit under §

520(a)(2) against the Director of DEP in his official capacity,

seeking prospective declaratory and injunctive relief. Bragg

alleged that the Director of DEP was violating his

nondiscretionary duties under SMCRA in issuing permits for

'This rule was modeled on the federal buffer zone rule, 30 C.F.R. §

$16.57, which in turn is based on SMCRA provisions that require mine

operators to “minimize the disturbances to the prevailing hydrologic balance

at the mine-site,” and to “minimize disturbances and adverse impacts of

operations on fish, wildlife, and related environmental values .. .” 30 U.S.C.

§§ 1265(b\(10), (b)(24). After this case was decided, DEP amended the

state buffer zone rule so that it is now identical to the federal buffer zone

rule. This rule change does not affect the decision in this case.

MTR mines.

Before granting Bragg’s motion for a preliminary injunction

against a MTR mine, the district judge flew over southern West

Virginia MTR sites in a helicopter. His flyover “revealed the

extent and permanence of environmental degradation” that

MTR mining produces:

[M]ined sites were visible from miles away. The sites stood

out among the natural wooded ridges as huge white [snow-

covered] plateaus, and the valley fills appeared as massive,

artificially landscaped stair steps. Some mine sites were

__ twenty years old, yet tree growth was stunted or non-existent.

Compared to the thick hardwoods of surrounding undisturbed

hills, the mine sites appeared stark and barren and

enormously different from the original topography.

54 F. Supp.2d 635, 646 (S.D.W.Va. 1999. The residents who

- live close to these huge mines experience noise, dust, and

blasting vibrations that crack the walls and foundations of their

homes. Generations-old communities near the mines are

decimated by the exodus of neighbors and friends who are

forced to move away to escape these conditions.

Counts 2 and 3 of Bragg’s Complaint contain the claims

relevant to this Petition, and focus on valley fills and the

streams that they bury. Both counts seek to enforce the

Director’s nondiscretionary permitting duties related to the state

“buffer zone rule.” Count 2 alleges that the Director of DEP

engaged in a pattern and practice of approving buffer zone

variances without making the findings required by the buffer

zone rule. Count 3 alleges that, because valley fills inherently

have an adverse effect upon stream ecology and cause

violations of water quality standards, the findings required by

the buffer zone rule could never be made for valley fills that

bury substantial portions of intermittent and perennial streams.

Both of these Counts seek to enforce the Director’s

nondiscretionary duty under § 510(b) of SMCRA, 30 U.S.C. §

1260(b), to reject permit applications that do not demonstrate

compliance with its state program generally and the buffer zone

rule particularly.

The Director of DEP moved to dismiss, asserting that Bragg’s

claims were barred by the Eleventh Amendment and that the

court lacked subject matter jurisdiction. He argued that,

although only injunctive relief and declaratory judgments

against him in his official capacity were sought, the Ex parte

Young exception to Eleventh Amendment immunity did not

apply because that exception only applies to violations of

federal law, and Bragg’s claims arose under state law. The

district court disagreed and held that Ex parte Young permitted

Bragg’s suit to proceed against the Director. App. 32a-37a, 55a-

57a.

All but Counts 2 and 3 of the complaint were settled. The

district court then granted Bragg’s motions for summary

judgment on those two remaining Counts. On Count 2, the

district court held that the Director has a nondiscretionary duty

under § 510(b) to withhold approval of mining permits until he

certifies that all requirements of SMCRA and the state program

have been complied with. App. 82a. The district court also held

that the Director was violating his nondiscretionary duty under

both this statute and the state buffer zone rule by admittedly not

making six of the seven findings required by that rule. App.

83a. The “Director’s legal rationales for failure to make the

required buffer zone findings were inconsistent with the

controlling statute and regulations.” Jd. (emphasis added).

On Count 3, the district court held that the Director has a

nondiscretionary duty under the buffer zone rule to deny

permits for valley fills in intermittent and perennial streams,

because those fills have an “adverse effect” on stream flow, fish

migration, water quality, and other environmental values. App.

87a. The district court observed:

When valley fills are permitted in intermittent and perennial

streams, they destroy those stream segments. The normal

flow and gradient of the stream is now buried under millions

of cubic yards of excess spoil waste material, an extremely

adverse effect. If there are fish, they cannot migrate. If there

is any life form that cannot acclimate to life deep in a rubble

pile, it is eliminated. No effect on related environmental

values is more adverse than obliteration. Under a valley fill, |

the water quantity of the stream becomes zero. Because there

is no stream, there is no water quality.

App. 84a. For relief, the district court granted Bragg’s motion

for a permanent injunction, “enjoining the Director from further

violations of the nondiscretionary duties discussed above and

from approving any further surface mining permits under

current law that would authorize placement of excess spoil in

intermittent and perennial streams for the primary purpose of

waste disposal.” App. 87a. The district court explained that this

injunction was purely prospective, and applied only to future

permit approvals. The district court stayed its injunction,

however, pending appeal. App. 90a-93a.

The Director of DEP, the United States (on behalf of OSM,

the U.S. Environmental Protection Agency (EPA), and the U.S.

Army Corps of Engineers), and the Intervenor-coal companies

and associations appealed the judgment on Counts 2 and 3. In

its appellate brief, the United States supported the district

court’s decision on both jurisdictional grounds and the merits,

and instead argued only that the scope of the injunction was

overbroad. On the jurisdictional issue, the United States agreed

with the district court and stated that “[t]he text of SMCRA

makes clear that approved state programs for administering

SMCRA establish standards enforceable as federal law,” and

that “the violation of state regulations adopted pursuant to

SMCRA and state-issued SMCRA permits constitutes the

violation of federal law, enforceable through SMCRA’s citizen

suit provision.” U.S. Br. 35 (emphases in original). The United

States also stated that the phrase “exclusive jurisdiction” in §

503(a) “establishes only that approved state agencies have

‘exclusive jurisdiction’ within their states to regulate mining

pursuant to SMCRA and subject to federal oversight” and “does

not alter the fact that approved state programs implement

federal \aw.” U.S. Reply Br. 8-9 (emphasis in original). In

contrast to the United States’ position, the Director of DEP and

Intervenors attacked the district court’s decision on both

Eleventh Amendment grounds and the merits.

The court of appeals reversed and remanded “with

instructions to dismiss Bragg’s unsettled claims asserted in

Counts 2 and 3 without prejudice to any suit she may wish to

pursue in West Virginia State court.” App. 29a. The court held

that, under SMCRA, federal and state regulatory authority are

“mutually exclusive,” and that once a State has received federal

approval of its state program, state law becomes the “sole

operative law,” and federal regulatory authority “drop[s] out.”

App. 20a-21a. The court’s opinion contains broad language

defining the federal-state relationship under SMCRA.

According to the Fourth Circuit, in states with approved

programs, the federal government is “conditionally divest[ed]

.. . of dizect regulatory authority” and “we can look only to

State law on matters involving enforcement of the minimum

national standards.” App. 19a (emphasis in original). The court

further stated that although not “all of SMCRA’s provisions

‘drop out,” the ones that remain are the “structural provisions

creating the facility through which the State can attain and can

lose its primacy status . . .” App. 21a (emphasis in original).

In reaching this conclusion, the court did not mention the

United States’ contrary interpretation of SMCRA. The court

also failed to reconcile its holding with its decision four years

earlier in Molinary v. Powell Mountain Coal Co., Inc., 125 F.3d

231 (4" Cir. 1997). In that decision, the Fourth Circuit

considered the United States’ identical position that approved

state programs are enforceable as federal law, and held that the

“interpretation espoused by the Secretary is a permissible

construction” and must be sustained. /d. at 236. It therefore

accepted federal jurisdiction over a citizen suit against a mine

operator to enforce a provision of Virginia’s federally-approved

state program under SMCRA. /d. at 236-37. In the instant case,

the Fourth Circuit implicitly rejected Molinary’s fundamental

premise, but then cited Molinary without explanation for the

vague proposition that “[i]t is now settled that 30 U.S.C. § 1270

confers on federal district courts subject matter jurisdiction over

at least some sorts of claims.” App. 27a (emphasis added). See

West Virginia Highlands Conservancy v. Norton, 147 F.

Supp.2d 474, 481 n.9(S.D.W.Va. 2001) (“This Court is unable

to reconcile . . . Molinary . . . with our Court of Appeals’

account of SMCRA cooperative federalism” in Bragg).

After concluding as a matter of statutory construction that

approved state programs arise solely under state law, the court

of appeals analyzed § 510 of SMCRA, which provided a

separate basis for the district court’s injunction. The court of

appeals recognized that “Bragg’s complaint essentially

challenges the Director’s failure to follow the permitting

requirements set forth in” § 510. App. 21a. But the court of

appeals transformed this violation of a federal statute into a

violation of only state law:

Because [§ 510] establishes minimum standards that have

been adopted by West Virginia and approved by the

Secretary, see W.Va.Code § 22-3-18, any violation of this

standard involves State law, not federal law, even though the

relevant language in the State law is identical to that in the

federal law. Accordingly, any injunction against State

officials to enforce this provision would command them to

comport with the State’s own law, not federal law, because

only the State law is operative and directly regulates the

issuance of permits.

App. 21a-22a (footnote omitted). In a footnote, the court of

appeals also noted that the state counterpart to § 510 had been

approved by OSM as a part of the West Virginia program. Jd.

The court of appeals then balanced federal and state interests

to determine whether this claim fell outside the bounds of the

Ex parte Young exception. App. 16a-17a. While recognizing

that “the federal interest in adjudicating the dispute is

undoubtedly stronger” than that in Pennhurst, the court

concluded that “the injunctive relief sought against the State

Director in this case ‘falls on the Eleventh Amendment side of

the line’ by some distance.” App. 22a-23a. The court of appeals

also relied on the 2-vote minority opinion in Jdaho v. Coeur

d’Alene Tribe, 521 U.S. 261 (1997), to hold that because West

Virginia’s “law specifically provides for its own enforcement in

a State forum, the concerns that gave rise to the exception of Ex

parte Young evaporate.” App. 25a.

Bragg and federal Respondents sought rehearing and

rehearing en banc. Both petitions cited the direct conflict with

Molinary. In its petition, the United States stated that the court’s

“fundamental premise that an approved State program is

‘exclusively’ state law for purposes of SMCRA’s citizen suit

provision is incorrect as a matter of law.” U.S. Petition 8. The

United States also stated that the court’s decision “overlooks

important aspects of the SMCRA regulatory scheme under

which the Secretary of the Interior has substantial enforcement

responsibility in primacy states.” /d. at 11. The court of appeals

denied both petitions.

Reasons for Granting the Petition

The Fourth Circuit erroneously held that a West Virginia state

official has Eleventh Amendment immunity from citizen suits

under federal law on the theory that West Virginia’s duties

under its federally-approved state program arise exclusively

under state law. First, regardless of whether an approved state

program is federal or state law, the court of appeals’ decision

conflicts with Ex parte Young by rejecting federal court

jurisdiction to enjoin a violation of § 510 of SMCRA. That

provision requires states to adhere to their state programs. The

decision also conflicts with Coeur d’Alene by relying on the

availability of a state court remedy to defeat prospective relief

under Ex parte Young. Second, this decision raises issues of

exceptional importance concerning the enforceability of

federally-approved state programs under SMCRA. By denying

that enforceability, it disrupts federal and citizen enforcement

of SMCRA. Third, the decision conflicts with this Court’s

decision in Arkansas v. Oklahoma and numerous federal court

decisions concerning the enforceability of federally-approved

State programs under other federal statutes based on

“cooperative federalism.” Finally, the Fourth Circuit and the

West Virginia Supreme Court of Appeals have reached opposite

conclusions concerning the enforceability of West Virginia’s

approved state program under SMCRA.

I. The Court of Appeals’ Decision Conflicts With Ex

parte Young and Coeur d’Alene by Rejecting An

Explicit Grant of Federal Court Jurisdiction to

Enjoin a Violation of a Federal Statute and by

Relying on the Availability of a State Court

Remedy

Regardless of whether West Virginia’s state program is

federal or state law, Bragg alleged, and the district court found,

that the Director of DEP had violated his nondiscretionary duty

under § 510 of SMCRA to withhold approval of permits that do

not comply with SMCRA and the approved state program. App.

82a-83a. That violation of federal law formed a separate basis

for the district court’s grant of prospective declaratory and

injunctive relief. The district court’s issuance of an injunction

to compel compliance with that federal law falls squarely within

the scope of the Ex parte Young exception to the Eleventh

Amendment.

The court of appeals dismissed this claim on the grounds that

a West Virginia state law is identical to § 510,? that this state

law was approved by OSM, and that a state regulator’s explicit

nondiscretionary duty under § 510 to comply with both

SMCRA and the state program cannot be enforced in a federal

court. In effect, the court of appeals held that the supremacy of

federal law under the Constitution is displaced and only state

law is enforceable. This conflicts with the core Eleventh

Amendment principle underlying Ex parte Young. The “entire

basis” for that doctrine is to “vindicate the supreme authority of

federal law.” Pennhurst, 465 U.S. at 106.

In § 520(a)(2), Congress authorized citizens to sue “the

appropriate State regulatory authority” in federal court for

injunctive relief whenever it fails “to perform any act or duty

under this Act which is not discretionary.” 30 U.S.C. §

1270(a)(2). This is a direct Congressional restatement of the Ex

parte Young principle. Cf Seminole Tribe v. Florida, 517 U.S.

44, 75 n. 17 (1996) (citing a similar Clean Water Act citizen

In fact, they are not identical. The state statute prohibits permit approval

unless “all the requirements of this article and rules thereunder have been

complied with.” W.Va.Code 22-3-18(b)(1) (App. 1 10a). The federal statute

prohibits permit approval unless “all the requirements of this chapter and the

State or Federal program have been complied with.” 30 U.S.C. § 1260(b)(1).

suit provision, 33 U.S.C. § 1365(a), as an example of a statute

in which “Congress implicitly authorized suit under Ex parte

Young”). The “duty under this Act” that Bragg sought to

enforce in this case is the federal duty of a state regulator under

§ 510(b)(1) to withhold approval of permit applications that do

not comply with “all the requirements of this chapter and the

State or Federal program . . . .” Jd. § 1260(b)(1) (emphasis

added). The district court found that a West Virginia state

official had violated § 510 and, pursuant to § 520(a)(2),

enjoined that official from violating § 510. The Fourth Circuit

effectively erased these two federal statutory provisions from

the U.S. Code.

Congress believed that citizen suits under § 520 were so

important that it provided that the availability of state judicial

review of state-issued permits would not preclude such suits

against a state regulatory authority. Jd. § 1276(e) (“the

availability of [judicial] review [in state courts] shall not be

construed to limit the operation of the rights established in

-section 520 [30 U.S.C. § 1270] except as provided therein”).

Under the court of appeals’ ruling, however, the “the concerns

that gave rise to the exception of Ex parte Young evaporate”

when a state judicial remedy is available to enforce an approved

state program. App. 25a (emphasis added).

The Fourth Circuit’s reliance on the availability of a state

court remedy not only overrides this plain statutory language,

but also conflicts with Coeur d’Alene. App. 24a. In Coeur

d’Alene, 521 U.S. at 274, only two Justices opined that the

availability of a state forum bars recourse to the Ex parte Young

doctrine. The other seven Justices rejected this approach. 521

U.S. at 293, 315.

In addition, the Fourth Circuit is incorrect that, as in

Pennhurst, an Ex parte Young injunction is not necessary in this

case to vindicate federal law. App. 24a. In Pennhurst, the

district court exercised pendent jurisdiction to issue an

injunction against state officials for violations of state law. 465

U.S. at 104. This Court held that Ex parte Young does not apply

to pendent state law claims.

In contrast, here the district court exercised federal question

jurisdiction under SMCRA to issue an injunction against a state

official for violating a federal statute. Even assuming arguendo

that a federally-approved state program is “solely the product of

its own sovereignty,” as the Fourth Circuit held (App. 24a),

federal law still provides the basis for jurisdiction and relief. In

that situation, the state official has a nondiscretionary duty

under § 510 to comply with federal law. In § 520, Congress

expressly provided that citizens may enforce this duty in federal

court. Such a federal court mandate to a state official does not

offend state dignity, as the court of appeals asserted (App. 24a),

but simply requires state officials to comply with an obligation

the state voluntarily assumed under SMCRA’s cooperative

federalism scheme.’

II. The Court of Appeals’ Decision Presents an Important

Issue of Federal Law Concerning the Enforceability of

Federally-Approved State Programs Under SMCRA.

The Fourth Circuit has fashioned an unprecedented

interpretation of federal-state relations under SMCRA. Under

that interpretation, federally-approved state programs are not

3When West Virginia chose to submit a state program for federal

approval, it accepted the federal government’s invitation to act as the

regulator of surface coal mining in that state. In exchange, Congress

required West Virginia to agree to submit to federal jurisdiction under §

520(a)(2) to review its non-discretionary actions for conformity with federal

law. West Virginia therefore waived its Eleventh Amendment immunity to

the claims raised by Bragg in this case. Cf Illinois Bell Tel. Co. v.

Worldcom Tech., Inc., 179 F.3d 566, 570 (7" Cir. 1999), cert. granted, 121

S.Ct. 1224 (2001).

federally enforceable. If that interpretation is not rejected by this

Court, it will disrupt the primary federal enforcement

mechanisms in SMCRA, contrary to the express intent of

Congress.

A citizen’s right to sue a state under § 520 extends only “to

the extent permitted by the eleventh amendment to the

Constitution.” 30 U.S.C. § 1270(a)(2). Because Ex parte Young

was settled law at the time SMCRA was enacted, however,

Congress must have believed that citizens could sue state

officials for injunctive relief to enforce SMCRA in federal court

without raising Eleventh Amendment objections. It would have

made no sense for Congress to give citizens that right to sue,

but to expect courts to take it away by granting blanket Eleventh

Amendment immunity. American Paper Institute v. American

Electric Power Service Corporation, 461 U.S. 402, 421 (1983)

(Court will not “imput[e] to Congress a purpose to paralyze

with one hand what it sought to promote with the other”).

However, under the Fourth Circuit’s decision, the section of

SMCRA allowing citizens to sue state officials in federal court

is meaningless. Citizens can never sue a state regulatory

authority in federal court, because once a state becomes the

regulatory author-ity, it opts out of federal law and is immune

from suit. The Fourth Circuit has improperly limited citizens to

a state forum, even though Congress expressly rejected that

forum as the exclusive remedy.

The effect of the Fourth Circuit’s decision on citizen

enforcement is already apparent. One month after the court of

appeals’ decision, a federal district court dismissed another

citizen suit against the Director of DEP, even though OSM,

DEP, and the district court all agreed that West Virginia’s

bonding program under SMCRA has violated federal law for

more than a decade. West Virginia Highlands Conservancy, 147

F. Supp.2d at 481.

The Fourth Circuit’s decision also disrupts OSM’s authority

to enforce approved state programs under federal law. The court

stated that, in states with approved programs, the federal

government is “conditionally divest[ed] . . . of direct regulatory

authority” and “we can look only to State law on matters

involving enforcement of the minimum national standards.”

App. 19a (emphasis in original). The court further stated that

although not “all of SMCRA’s provisions ‘drop out,”” the ones

that remain are the “structural provisions creating the facility

through which the State can attain and can lose its primacy

status . . .” App. 21a (emphasis in original).

These statements ignore section 504(b), entitled “Federal

enforcement of State programs,” which provides that “[i]n the

event that a State has a State program for surface coal mining,

and is not enforcing any part of such program, the Secretary

may provide for the Federal enforcement, under the provisions

of section 1271 [Section 521] of this title, of that part of the

State program not being enforced by such State.” 30 U.S.C. §

1254(b) (emphasis added). Thus, contrary to the Fourth

Circuit’s statements, § 504(b) authorizes OSM to enforce the

provisions of the State program itself where a State is failing to

do so, pursuant to SMCRA § 521.

In turn, § 521(a)(1) provides that where OSM “has reason to

believe that any person is in violation of any requirement of this

chapter or any permit condition required by this chapter,” and

a State with an approved program fails within 10 days after

notification to take appropriate corrective action or show good

cause, OSM “shall immediately order Federal inspection of the

surface coal mining operation . . . .” 30 U.S.C. § 1271(a)(1).‘

*An OSM regulation provides that OSM “shall” issue a notice of

violation when a federal inspection reveals a violation of an approved state

program. 30 C.F.R. § 843.12(a)(2). See National Mining Ass'n v. DOI, 70

F.3d 1345, 1347 (D.C. Cir. 1995) (that rule “permits [OSM] to issue a NOV

.. . if it determines there is a violation of . . . the state program”).

Furthermore, § 521(b), entitled “Inadequate State enforcement,”

states that if OSM finds that a state has not adequately

demonstrated its capability and.intent to enforce its approved

program, OSM “shall enforce, in the manner provided by this

chapter, any permit condition required under this chapter, shall

issue new or revised permits in accordance with the

requirements of this chapter, and may issue such notices and

orders as are necessary for compliance therewith .. . .” Id., §

1271(b). These statutes carry out Congress’ intent that “Federal

standards are to be enforced by the Secretary on a mine by mine

basis for all or part of the State as necessary without a finding

that the State regulatory program should be superseded by a

Federal permit and enforcement program.” S. Rep. No. 128,

supra, p. 88; 52 Fed. Reg. 21598 (June 8, 1987). Thus, by

SMCRA’s express terms, OSM has the continuing

responsibility to enforce the requirements of an approved state

program as a matter of federal law where a state has failed to do

so. These OSM enforcement proceedings are entirely federal,

since administrative proceedings are subject to the federal

Administrative Procedure Act, judicial review of those

proceedings is in federal court, and direct judicial enforcement

proceedings are filed in federal court. 30 U.S.C. §§ 1271(c),

1275(a)(2), 1276(a)(2).

The Fourth Circuit’s decision disrupts this statutory

enforcement authority by holding that, after OSM approves a

state program, federal statutes and regulations “drop out” as

operative provisions and are re-engaged only if OSM revokes

the program. App. 20a-21a. As a result, states with approved

programs can violate federal law with the knowledge that

OSM’s primary remaining enforcement tool is revocation of

state primacy and substitution of a federal program. This drastic

power has only been exercised once by OSM in the last 24

years. 49 Fed. Reg. 38874 (Oct. 1, 1984) (Tennessee).

Currently, there are 24 primacy states that administer approved

isieeaieeniesiiiiiiniaiai

state programs, while 12 states have federal programs. OSM

Annual Report 22, 25 (2000).

Thus, the Fourth Circuit’s decision disrupts citizen and

federal enforcement of SMCRA within that Circuit, which

includes two major coal-producing states. West Virginia and

Virginia were the second and ninth largest producers of coal in

the country in 1999. Energy Information Administration, Coal

Industry Annual 1999, p. 4, Table 1. Those two states are left to

police themselves, with no effective federal oversight.

The Fourth Circuit’s interpretation of SMCRA, which

erroneously misconstrued and elevated the words “exclusive

jurisdiction” in the statute above all others, leads to a result that

is contrary to Congressional intent and OSM’s long-standing

statutory and administrative interpretation.* Nothing in SMCRA

provides that federal law becomes inoperative once a state

program is approved. On the contrary, multiple provisions in

SMCRA demonstrate that an approved state program is

enforceable as federal law. See pp. 3-4, infra. These provisions

demonstrate that Congress defined the state role as

administering the federal law of SMCRA through the federally-

approved state program.

Furthermore, OSM has consistently interpreted the provisions

of approved State programs as federal law enforceable in

federal court, in two rulemaking proceedings and in two cases

in the court of appeals. See pp. 4-5, infra. OSM’s first

pronouncement was contemporaneous with the enactment of

SMCRA and is therefore entitled to considerable deference.

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 844 (1984); Lowe

v. SEC, 472 U.S. 181, 216 (1985) (“[a]n agency’s construction

of legislation that it is charged with enforcing is entitled to

‘As the Fourth Circuit held in Molinary, “Exclusive regulatory

jurisdiction simply does not encompass exclusive adjudicatory jurisdiction.”

125 F.3d at 236.

substantial weight, particularly when the construction is

contemporaneous with the enactment of the statute”). OSM

took the same position in its two appellate briefs in this case

and in Molinary. 125 F.3d at 235 n. 4.

The panel’s decision not only does violence to the plain

statutory language and its administrative interpretation, but also

conflicts with the legislative history of SMCRA. When it

‘enacted SMCRA in 1977, Congress considered a “states” rights

amendment,” which proposed that “[i]f the Secretary finds that

State law is equal to or more stringent than [federal] standards

. ., then the State shall retain exclusive jurisdiction pursuant to

State law over all surface coal mining operations in such State

. .” 123 Cong. Rec. 15581 (1977), Amendment No. 277, §

429(a)(6) (emphasis added). This amendment would have

allowed states “to get their program certi-fied in 24 months as

to environmental and reclamation standards and they opt out of

this bill and run their own program” under state law. Jd. at

15584 (remarks of Sen. Domenici). The Senate rejected this

amendment by a vote of 51 to 39. Jd. at 15591. Instead,

Congress passed the current version of § 1253(a), which uses

the term “exclusive jurisdiction” without the qualification that

it is “pursuant to State law,” and § 1260(b), which provides

that, as a matter of federal law, mining permits must be

consistent with SMCRA and a federally-approved state

program. Thus, by rejecting the states’ rights amendment,

Congress allowed only two alternatives (an exclusively federal

program or a federally-approved state program), and rejected

the concept of a program under exclusively state law that the

Fourth Circuit has now adopted. “Few principles of statutory

construction are more compelling than the proposition that

_ Congress does not intend sub silentio to enact statutory

language that it has earlier discarded in favor of other

language.” I. N.S. v. Cardoza Fonseca, 480 U.S. 421, 442-43

(1987).

The Fourth Circuit’s decision is therefore inconsistent with

the plain language of the statute, OSM’s long-standing

administrative interpretation, and the legislative history. The

effect of that decision is to disrupt the primary mechanisms for

citizen and federal enforcement of federally-approved state

programs under an important federal statute.

Ill. The Court of Appeals’ Decision Conflicts with

Arkansas v. Oklahoma and with Numerous Federal

Court Decisions Concerning the Enforceability of

Federally-Approved State Programs Under Federal

Statutes Based on “Cooperative Federalism.”

The Fourth Circuit’s new interpretation of “cooperative

federalism” threatens to undermine federal authority not only

under SMCRA, but under many other federal statutes. SMCRA

is a “program of cooperative federalism” that “is replicated in

numerous federal statutory schemes.” New York v. U.S., 505

U.S. 144, 167-68 (1992). One of those statutes is the Clean

Water Act (CWA). “Like the SMCRA, the [Clean Water Act

(CWA)] sets up a system of ‘cooperative federalism,’ in which

states may choose to be primarily responsible for running

federally-approved programs.” Southern Ohio Coal v. OSM, 20

F.3d 1418, 1427 (6" Cir. 1994), cert. denied, 513 U.S. 927

(1994). “Under both the CWA and SMCRA, the responsible

federal agency retains oversight power to ensure compliance

with federal standards.” Id. at 1428.

In Arkansas v. Oklahoma, 503 U.S. 90, 110 (1992), this Court

recognized the “federal character” of state pollution standards

under the CWA.° The Court construed an EPA regulation that

*In EPA v. Oklahoma, decided together with Arkansas v. Oklahoma, EPA

stated that “the showing necessary to determine under the CWA whether

there is compliance with any particular state [pollution] standard is itself a

required CWA discharge permits to comply “with the

applicable water quality requirements of all affected States.” 40

C.F.R. § 122.4(d). The Court held that “this regulation

effectively incorporates into federal law those state-law

standards the Agency reasonably determines to be ‘applicable’”

and those standards “are part of the federal law of water

pollution control.” 503 U.S. at 110.

As in Arkansas, OSM “effectively incorporates into federal

law” those state program provisions that it has approved. OSM

specifically codified and referenced West Virginia’s buffer zone

rule in the Code of Federal Regulations. 30 C.F.R. §§ 900.11,

948.15 (App. 109a). State standards under the Clean Water Act

and SMCRA are directly comparable because both require

federal approval.’ When OSM approved and incorporated West

Virginia’s buffer zone rule in the Code of Federal Regulations,

that rule therefore became part of the federal law of SMCRA.

Furthermore, since § 510(b) expressly requires West Virginia

to adhere to its state program, that statute incorporates the state

program into the federal law of SMCRA.

The court of appeals attempted to distinguish Arkansas,

stating that “[t]he statutory federalism of SMCRA is quite

unlike the cooperative regime under the Clean Water Act...”

App. 18a. To support that conclusion, the court explained:

As the Supreme Court noted [in Arkansas], one of the Clean

Water Act’s regulations “effectively incorporate[d]” State law

matter of federal, not state, law.” Brief for Petitioner, O.T. 1991, No. 90-

1266, p. 18 n. 21 (emphasis added).

EPA must review and approve state water quality standards under 33

U.S.C. § 1313(c) before they become effective. Miccosukee Tribe of Indians

v. United States, 105 F.3d 599, 601 (11 Cir. 1997). Similarly, OSM must

review and approve state mining programs under 30 U.S.C. § 1253 and 30

C.F.R. § 732.17(g) before they become effective.

into the unitary federal enforcement scheme, making State

law, in certain circumstances, federal law. Under SMCRA, in

contrast, Congress designed a scheme of mutually exclusive

regulation by either the U.S. Secretary of the Interior or the

State regulatory authority, depending on whether the State

elects to regulate itself or to submit to federal regulation.

Id. That statement is devoid of any analysis of the actual

regulatory process for approving state programs under SMCRA,

and wrongly assumes that the phrase “exclusive jurisdiction” in

§ 503(a) overrides the reality of OSM’s codification of

approved state programs. The court of appeals further posited

that SMCRA, unlike the Clean Water Act, evidences the

“absence of an explicit incorporation of State law into federal

law.” App. 23a. However, that statement is incorrect and

ignores OSM’s incorporation of West Virginia’s buffer zone

rule into the Code of Federal Regulations. Thus, the Fourth

Circuit’s decision is inconsistent with this Court’s holding in

Arkansas concerning the incorporation of state law into federal

statutes that are based on cooperative federalism.

The Fourth Circuit’s decision is also inconsistent with

numerous other federal decisions holding that federally-

approved state programs under federal statutes are federally

enforceable, including decisions under SMCRA, the CWA, the

Resource Conservation and Recovery Act (RCRA), the Clean

Air Act (CAA), and the Individuals with Disabilities Education

Act (IDEA). These cases involve suits against both state

officials and non-governmental parties. Both types of cases are

relevant, because if the Fourth Circuit’s reasoning were

adopted, there would be no federal law to enforce against either

party, and therefore no federal jurisdiction.

1. SMCRA. In discussing the federal-state relationship under

SMCRA, the en banc D.C. Circuit has recognized the basic

principle that citizens have “the right to sue in federal court, to

compel compliance with the state program and its permits.” Jn

re Permanent Surface Mining Regulation Litigation, 653 F.2d

514, 519 (D.C.Cir. 1981). The Fourth Circuit itself previously

held in Molinary, 125 F.3d at 236, that “[i]t may reasonably be

said that once the Secretary approves a state surface coal mining

and reclamation program, the rules, regulations, orders, and

permits issued under that program are ‘issued,’ in the language

of [30 U.S.C. § 1270(f)], ‘pursuant to’ SMCRA” and are

therefore enforceable in federal court.’

2. CWA. This Court has held that conditions in discharge

permits issued pursuant to approved state permit programs

under the CWA are federally enforceable in CWA citizen suits.

EPA v. California, 426 U.S. 200, 224-25 (1976). Interpreting

the CWA’s citizen suit provision, the Ninth Circuit has held

that “Congress implicitly intended to authorize citizens to bring

Ex parte Young suits against state officials with the

responsibility to comply with clean water standards and

permits.” NRDC v. California DOT, 96 F.3d 420, 424 (9 Cir.

1996).

3. RCRA. The Ninth Circuit has held that approved state

*Molinary involved a citizen suit against a mine operator, while the

instant case is a citizen suit against a state agency. Thus, as a technical

matter, Molinary did not involve the Eleventh Amendment. However, the

two cases presented the exact same question—whether an approved state

program is state or federal law—and reached exact opposite conclusions.

In Haydo v. Amerikohl Mining, Inc., 830 F.2d 494 (3d Cir. 1987), the

Third Circuit reached the opposite result from Molinary, and held that

jurisdiction over violations of an approved state program by a mine operator

lies exclusively in state courts. Yet, in doing so, Haydo explicitly recognized

that “citizen suits against state and federal governmental defendants may be

predicated directly upon violations of the provisions of SMCRA .. .”

because “[t}he principal purpose of the citizen suit provision was to provide

‘a practical and legitimate method of assuring the regulatory authority’s

compliance with the requirements of the act.’ Legislative History at 625.”

803 F.2d at 496-97 (emphasis in original).

programs under the Resource Conservation and Recovery Act

(RCRA) are federally enforceable in citizen suits. Ashoffv. City

of Ukiah, 130 F.3d 409, 411 (9" Cir. 1997). “The federal

criteria [under RCRA] give the state standards legal effect

under federal law” and citizen suits can be brought in federal

court for non-compliance with those state standards. Jd. EPA

has repeatedly stated that citizens can sue in federal court to

enforce these federal criteria in states with approved RCRA

programs. /d. at 411-12. The majority of federal district courts

have also allowed RCRA citizen suits in states with approved

programs, reasoning that federally-approved state programs

have “become effective pursuant to” RCRA, within the

meaning of RCRA’s citizen suit provision, 42 U.S.C. §

6972(a)(1)(A).?

4. CAA. Five circuits have held that approved State

Implementation Plans (SIPs) under the Clean Air Act (CAA),

42 U.S.C. § 7410, are federally enforceable in citizen suits.

Espinosa v. Roswell Tower, Inc., 32 F.3d 491, 492 (10th Cir.

*The district court cases allowing suit are: L. E.A.D. (Lead Environmental

Awareness Development) v. Exide Corp., 1999 WL 124473, at *9 (E.D.Pa.

1999); Evco Associates, Inc. v. C.J. Saporito Plating Co., 1995 WL 571438,

at *2-*3 (N.D. Ill. 1995); Glazer v. American Ecology Environmental

Services Corp., 894 F.Supp. 1029, 1040 (E.D.Tex. 1995); Acme Printing

Ink Corp. v. Menard, 881 F. Supp. 1237, 1244 (E.D. Wis. 1995); Sierra

Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo. 1993);

Lutz v. Chromatex, Inc.,725 F. Supp. 258, 261 (M.D. Pa. 1989); Murray v.

Bath Iron Works Corp., 867 F. Supp. 33, 43 (D. Me. 1994); and Long

Island Soundkeeper Fund, Inc. v. New York Athletic Club of City of New

York, 1996 WL 131863, at *7-*8 (S.D.N.Y. 1996). The district court cases

not allowing suit are: Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 124

(N.D. Ill. 1994); City of Heath v. Ashland Oil, Inc., 834 F. Supp. 971,

979-80 (S.D. Ohio 1993); Williamsburgh-Around-the-Bridge Block Assn.

v. Jorling, 1989 WL 98631, at *3-*4 (N.D.N.Y. 1989); Thompson v.

Thomas, 680 F Supp. 1, 3 (D.D.C.1987); and Luckie v. Gorsuch, 13 ELR

20406 (D.Ariz. 1983).

1994); Her Majesty the Queen vy. City of Detroit, 874 F.2d 332,

335 (6" Cir. 1989); American Lung Ass'n v. Kean, 871 F.2d

319, 322, 325 (3d Cir. 1989) (“once EPA approves a SIP the

state is obligated to comply with it”; citizen suits may be filed

against state officials in their capacity as regulators “to make

sure they enact the regulatory schemes to which they have

committed themselves”); Friends of the Earth v. Carey, 535

F.2d 165, 173 (2d Cir. 1976); Union Electric Co. v. EPA, 515

F.2d 206, 211 (8" Cir. 1975) (“[u]pon approval or promulgation

of a [SIP], the requirements thereof have the force and effect of

federal law . . .”), aff'd, 427 U.S. 266 (1976).

5. IDEA. Under the Individuals with Disabilities Education

Act, a state may receive federal financial assistance for

educating disabled students if the state submits a plan that

meets federal minimum criteria and is approved by the

Secretary of Education. 20 U.S.C. §§ 1412, 1413. In Geis v.

Board of Education of Parsippany-Troy Hills, 774 F.2d 575,

581 (3d Cir. 1985), the Third Circuit rejected a school board’s

claim that an order requiring it to comply with standards in the

state plan violated the Eleventh Amendment, and held that

“federal law incorporates any state standards that go beyond the

minimum standards of the Act, and thereby confers on the

federal courts authority to enforce such standards under their

“federal question’ jurisdiction.” See also David D. v. Dartmouth

School Committee, 775 F.2d 411,419 (1* Cir. 1985) (“Congress

intertwined federal and state standards into one body of law”).

Thus, the Fourth Circuit’s decision conflicts with this Court’s

decision in Arkansas and with numerous other federal court

decisions concerning the structure of federal-state relations

under federal statutes based on “cooperative federalism.”

IV. The Federal Court of Appeals and the West Virginia

Supreme Court of Appeals Have Reached Opposite

Conclusions Concerning the Enforceability of West

Virginia’s State Program Under SMCRA.

In Canestraro v. Faerber, 374 S.E.2d 319 (W.Va. S.Ct.

1988), county residents alleged that a provision in West

Virginia’s state program was less stringent than OSM’s federal

regulation, and was therefore invalid, even though it had been

federally approved by OSM. The West Virginia Supreme Court

of Appeals framed the issue as “whether the requirements of the

federal act [SMCRA] continue to have force and effect after the

state program has been approved.” Jd. at 320. The court

answered this question affirmatively, stating that “when there

is a conflict between the federal and state provisions, the less

restrictive state provision must yield to the more stringent

federal provision notwithstanding the administrative approval

of the state law by OSM.” Id. at 321 (emphasis added). The

West Virginia Supreme Court has reaffirmed this principle in

two recent decisions. DK Excavating, Inc. v. Miano, 549 S.E.2d

280 (W.Va. S.Ct. 2001); Antco, Inc. v. Dodge Fuel Corp., 550

S.E.2d 622 (W.Va. S.Ct. 2001).

The Fourth Circuit held that, after a state program is approved

by OSM, federal law “‘drop[s] out’ as operative law” and state

laws “become the sole operative law.” App. 20a-2la. In

contrast, the West Virginia Supreme Court has held that federal

law continues to be operative after a state program is approved.

Thus, the federal circuit court for West Virginia and the highest

state court in West Virginia disagree about whether federal law

under SMCRA continues to be operative in West Virginia when

an approved state program is in effect.

This disagreement creates confusion in West Virginia about

the validity and content of West Virginia’s state mining

program. The mining industry and the public do not know

whether federal law continues to apply, and therefore cannot

determine with certainty the standards against which mining

activity is to be regulated and enforced. Canestraro demands

that the state court follow federal law, if that law is more

stringent than the state program. However, Bragg demands that

the state court follow exclusively state law, regardless of

whether federal law is more stringent, because federal law is

inoperative. Only this Court can resolve this confusion and

establish the proper relationship between state and federal law

under SMCRA.

CONCLUSION

For these reasons, the petition for a writ of certiorari should

be granted.

Respectfully submitted,

Joseph M. Lovett James M. Hecker

Mountain State Justice, | (Counsel of Record)

Inc. Arthur H. Bryant

922 Quarrier St., Trial Lawyers for Public Justice, P.C.

Suite 525 Suite 800

Charleston, WV 25301 1717 Massachusetts Ave., N.W.

(304) 344-3144 Washington, D.C. 20036

| (202) 797-8600

Patrick C. McGinley Suzanne M. Weise

737 South Hills Drive P.O. Box 343 |

Morgantown, WV 26505 Morgantown, WV 26507

(304) 292-9822 (304) 292-9822

Counsel for Petitioners

: Tak xi Gl

: hae

Paes Doers

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-2443, 99-2445, 99-2446, 99-2447, 99-2448,

99-2683, 00-1338, 00-1339 (Consolidated)

PATRICIA BRAGG; JAMES W. WEEKLEY;

SIBBY R. WEEKLEY; WEST VIRGINIA HIGHLANDS

CONSERVANCY; CARLOS GORE; LINDA GORE;

CHERYL PRICE; JERRY METHENA,

Plaintiffs-Appellees,

Vv.

WEST VIRGINIA COAL ASSOCIATION; WEST

VIRGINIA MINING AND RECLAMATION

ASSOCIATION, HOBET MINING, INCORPORATED;

CATENARY COAL COMPANY; MINGO-LOGAN

COAL COMPANY; WESTERN POCAHONTAS

PROPERTIES LIMITED PARTNERSHIP;

NATIONAL COUNCIL OF COAL LESSORS,

INCORPORATED; INTERNATIONAL UNION, UNITED

MINE WORKERS OF AMERICA,

Intervenors/Defendants-Appellants,

and

DANA ROBERTSON, Colonel, District Engineer, U.S.

Army Corps of Engineers, Huntington District; JOE N.

BALLARD, Lieutenant General, Chief of Engineers and

Commander of the U.S. Army Corps of Engineers;

MICHAEL D. GHEEN, Chief to the Regulatory Branch,

Operations and Readiness Division, U.S. Army Corps of

Engineers, Huntington District; MICHAEL C. CASTLE,

Director, West Virginia Division of Environmental

Protection,

Defendants-Appellants,

Argued: December 7, 2000

Decided: April 24, 2001

Rehearing and Rehearing En Banc Denied: July 13, 2001

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit

Judges.

Affirmed in part, vacated in part, and remanded with

instructions by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Luttig and Judge Williams joined.

NIEMEYER, Circuit Judge:

This case, which is of great importance to the citizens of

West Virginia, was commenced by some of its citizens and an

environmental group against the Director of the West Virginia

Division of Environmental Protection to challenge his issuance

of permits for mountaintop-removal coal mining in the State.

The complaint alleged that the Director “has routinely approved

surface coal mining permits which decapitate the State’s

mountains and dump the resulting waste in nearby valleys,

burying hundreds of miles of headwaters of West Virginia’s

streams,” and it requested an injunction prohibiting the further

issuance of such permits.

The public concern over this issue is demonstrated by the

remarkably broad spectrum of interests represented in these

proceedings, as well as by their unusual alliances, in both the

political and legal arenas. On one side of the dispute are

plaintiffs, consisting of a group of private citizens and

environmental groups who oppose West Virginia’s current

permitting practices, and they enjoy the support of the U.S.

Environmental Protection Agency. On the other side are the

coal mining companies, who are allied with the United Mine

Workers of America and the West Virginia State political

establishment, all of whom favor current mining practices. And,

until this litigation was commenced, these practices had the

approval of the U.S. Army Corps of Engineers, although the

United States’ interests are now aligned with the position taken

by the U.S. Environmental Protection Agency.

Following extensive and careful consideration of motions for

sum- mary judgment on the substantive issues presented and

crOss-motions to dismiss, the district court denied the motions

to dismiss, found that West Virginia’s approval of mountaintop

mining practices violated both federal and State law, and

enjoined the State from issuing further permits that authorize

dumping of mountain rock within 100 feet of intermittent and

perennial streams.

Because we conclude that the doctrine of sovereign immunity

bars the citizens from bringing their claims against an official

of West Virginia in federal court, we vacate the district court’s

injunction and remand with instructions to dismiss the citizens’

complaint without prejudice so that they may present their

claims in the proper forum. We affirm, however, the district

court’s earlier consent decree approving a settlement of some

of the claims asserted. The reasons for our rulings follow.

Mountaintop-removal coal mining, while not new, only

became widespread in West Virginia in the 1990s. Under this

method, to reach horizontal seams of coal layered in mountains,

the mountaintop rock above the seam is removed and placed in

adjacent valleys; the coal is extracted; and the removed rock is

then replaced in an effort to achieve the original contour of the

mountain. But because rock taken from its natural state and

broken up naturally “swells,” perhaps by as much as 15 to 25%,

the excess rock not returned to the mountain -- the

“overburden” -- remains in the valleys, creating “valley fills.”

Many valley fills bury intermittent and perennial streams and

drainage areas that are near the mountaintop. Over the years, the

West Virginia Director of Environmental Protection (the

“Director” or “State Director”), as well as the U.S. Army Corps

of Engineers, has approved this method of coal mining in West

Virginia.

The disruption to the immediate environment created by

mountaintop mining is considerable and has provoked sharp

differences of opinion between environmentalists and industry

players. See, e.g., Penny Loeb, Shear Madness, U.S. News &

World Rept., Aug. 11, 1997. As Loeb reported these differences

of opinion, environmentalists decry the “startling” change in the

topography, which leaves the land more subject to floods,

results in the pollution of streams and rivers, and has an

“incalculable” impact on wildlife. The environmentalists also

criticize the mining process itself, which cracks foundations of

nearby houses, causes fires, creates dust and noise, and disrupts

private wells. The coal companies concede that the process

changes the landscape, but note on the positive side that land is

reclaimed, that grass, small shrubs, and trees are planted, and

that waterfowl ponds are added. Moreover, the companies

observe that mining is critical to the West Virginia economy

Taek eS Fey a Cd UNG he Ae, SE ina I ae alee nee a

and creates high-paying jobs in the State.

In July 1998, Patricia Bragg, along with eight other West

Virginia citizens and the West Virginia Highlands Conservancy

(collectively “Bragg”), commenced this action against officials

of the U.S. Army Corps of Engineers and the State Director.

Bragg alleged that the State Director, in granting surface coal

mining permits, “engaged in an ongoing pattern and practice of

violating his non-discretionary duties under the Surface Mining

Control and Reclamation Act [of 1977, 30 U.S.C. § 1201 ef

seq.] and the West Virginia state program approved under that

statute.” More particularly, she alleged that the Director

consistently issued permits to mining operations, without

making requisite findings, that (1) authorized valley fills, (2)

failed to assure the restoration of original mountain contours,

and (3) violated other environmental protection laws. She

asserted that the Director violated his federal- and State-law

duty to “withhold approval of permit applications that are not

complete and accurate and in compliance with all requirements

of the state program.” She also alleged that the Corps of

Engineers breached its duties under federal law.

The Director moved to dismiss the complaint, asserting that

Bragg’s claims were barred by the Eleventh Amendment and

that the court, in any case, lacked subject matter jurisdiction. He

argued that although only injunctive relief and declaratory

judgments against him in his official capacity were sought, the

Ex parte Young exception to Eleventh Amendment immunity

did not apply because Bragg’s claims arose under State law.

The district court disagreed and permitted Bragg’s suit to

proceed against the Director.

All but two counts of the complaint were settled,’ and the

'The counts of the complaint directed against the U.S. Army Corps of

Engineers for violation of the Clean Water Act, 33 U.S.C. § 1251 et seq.,

the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the

court resolved Counts 2 and 3 on motions for summary

judgment. Both of these counts addressed a West Virginia

regulation, enacted to conform with a federal regulation, that

established 100-foot “buffer zones” around “perennial” and

“intermittent” streams, within which surface mining activities

may not disturb the land, unless the State agency “specifically

authorizes” such activities after making certain findings. W. Va.

Code St. R. tit. 38 § 2-5.2; see also 30 C.F.R. § 816.57 (the

federal counterpart).? Count 2 alleged that the Director engaged

in a pattern and practice of approving mountaintop removal

operations without even attempting to make the required

findings, and Count 3 alleged that because valley fills inherently

Administrative Procedure Act, 5 U.S.C. § 501 et seq., were settled on

December 23, 1998, and the district court approved the settlement as “fair,

adequate, reasonable, and faithful to the [applicable] environmental

statutes.” Bragg v. Robertson, 54 F. Supp. 2d 653, 670 (S.D. W. Va. 1999).

The counts directed against the State Director, except for Counts 2 and 3,

were settled on July 26, 1999, and the court approved that settlement by

entry of a consent decree, dated February 17, 2000. See Bragg v. Robertson,

83 F. Supp. 2d 713, 722 (S.D. W. Va. 2000). The coal companies and

associations, but not the Director, have appealed the consent decree,

asserting that the court did not have jurisdiction over the State Director

because (1) 30 U.S.C. § 1270(a\(2) did not provide jurisdiction, and (2) the

Eleventh Amendment barred the action against the Director.

?2 W. Va. Code St. R. tit. 38 § 2-5.2 states

No land within one hundred feet (100’) of an intermittent or perennial

stream shall be disturbed by surface mining operations including roads

unless specifically authorized by the Director. The Director will authorize

such operations only upon finding that surface mining activities will not

adversely affect the normal flow or gradient of the stream, adversely

affect fish migration or related environmental values, materially damage

the water quantity or quality of the stream and will not cause or

contribute to violations of applicable State or Federal water quality

standards. The area not to be disturbed shall be designated a buffer zone

and marked accordingly.

have an adverse effect upon stream ecology and cause

violations of water quality standards, the findings required by

the State regulation could never be made, at least not accurately,

for valley fill permits. In entering summary judgment in favor

of Bragg, the district court ruled (1) that “the Director has a

nondiscretionary duty to make the findings required under the

buffer zone rule before authorizing any incursions, including

valley fills, within one hundred feet of an intermittent or

perennial stream,” Bragg v. Robertson, 72 F. Supp. 2d 642, 661

(S.D. W. Va. 1999); and (2) that “the Director has a

nondiscretionary duty under the buffer zone rule to deny

variances for valley fills in intermittent and perennial streams

because they necessarily adversely affect stream flow, stream

gradient, fish migration, related environmental values, water

quality and quantity, and violate state and federal water quality

standards,” id. at 663. Based on these rulings, the court enjoined

the Director “from approving any further surface mining

permits under current law that would authorize placement of

excess spoil in intermittent and perennial streams for the

primary purpose of waste disposal.” /d. The district court stayed

its injunction, however, pending appeal to this court. See Bragg

v. Robertson, 190 F.R.D. 194, 196 (S.D. W. Va. 1999).

The State Director appealed, challenging not only the district

court’s substantive rulings on Counts 2 and 3, but also its

rulings that the Eleventh Amendment did not bar this suit

against him and that the federal court had jurisdiction to

consider Bragg’s claims. Coal mining companies and coal

associations, that had intervened in the case, also appealed,

again contesting the district court’s substantive rulings on

Counts 2 and 3 and challenging the district court’s jurisdiction

both to enter the injunction and to enter the February 17, 2000

consent decree approving the settlement of the other claims

against the Director. Finally, the United States appealed,

challenging the breadth of the district court’s injunction.

The Surface Mining Control and Reclamation Act of 1977

(“SMCRA”) was enacted to strike a balance between the

nation’s interests in protecting the environment from the

adverse effects of surface coal mining and in assuring the coal

supply essential to the nation’s energy requirements. See 30

U.S.C.§ 1202(a), (d), (f); see also Hodel v. Va. Mining &

Reclamation Ass'n, 452 U.S. 264, 268-69 (1981). The Act

accomplishes these purposes through a “cooperative

federalism,” in which responsibility for the regulation of surface

coal mining in the United States is shared between the U.S.

Secretary of the Interior and State regulatory authorities. See

H.R. Rep. No. 95-218, at 57 (1977) (hereinafter “Legislative

History”), reprinted in 1977 U.S.C.C.A.N. 593, 595. Under this

scheme, Congress established in SMCRA “minimum national

standards” for regulating surface coal mining and encouraged

the States, through an offer of exclusive regulatory jurisdiction,

to enact their own laws incorporating these minimum standards,

as well as any more stringent, but not inconsistent, standards

that they might choose. See Legislative History, at 167,

reprinted in 1977 U.S.C.C.A.N. at 698; 30 U.S.C. § 1255(b).

To implement this cooperative federalism, SMCRA directs

the U.S. Secretary of the Interior to develop a “federal program”

of regulation that embodies the minimum national standards

and to consider for approval any “State programs” that are

submitted to it for approval. To obtain approval of its program,

a State must pass a law that provides for the minimum national

standards established as “requirements” in SMCRA and must

also demonstrate that it has the capability of enforcing its law.

See 30 U.S.C. § 1253(a). Once the Secretary is satisfied that a

State program meets these requirements and approves the

program, the State’s laws and regulations implementing the

program become operative for the regulation of surface coal

mining, and the State officials administer the program, see id.

§ 1252(e), giving the State “exclusive jurisdiction over the

regulation of surface coal mining” within its borders, id. §

1253(a). If, however, a State fails to submit a program for

approval, or a program that it submits is not approved, or

approval of a State’s program is withdrawn because of

ineffective enforcement, then the federal program becomes

applicable for the State, and the Secretary becomes vested with

“exclusive jurisdiction for the regulation and control of surface

coal mining and reclamation operations taking place[in the]

State.” Id. § 1254(a); see also Legislative History, at 85-86,

reprinted in 1977 U.S.C.C.A.N. at 622.

Thus, SMCRA provides for either State regulation of surface

coal mining within its borders or federal regulation, but not

both. The Act expressly provides that one or the other is

exclusive, see 30 U.S.C. §§ 1253(a), 1254(a), with the

exception that an approved State program is always subject to

revocation when a State fails to enforce it, see id §§ 1253(a);

1271(b). Federal oversight of an approved State program is

provided by the Secretary’s obligation to inspect and monitor

the operations of State programs. See id. §§ 1267, 1271. Only

if an approved State program is revoked, as provided in § 1271,

however, does the federal program become the operative

regulation for surface coal mining in any State that has

previously had its program approved. See id. §§ 1254(a), 1271.

In sum, because the regulation is mutually exclusive, either

federal law or State law regulates coal mining activity in a

State, but not both simultaneously. Thus, after a State enacts

Statutes and regulations that are approved by the Secretary,

these statutes and regulations become operative, and the federal

law and regulations, while continuing to provide the “blueprint”

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

operative provisions. They are reengaged only following the

instigation of a § 1271 enforcement proceeding by the Secretary

of the Interior.

In the case before us, West Virginia submitted a program to

the Secretary in 1980 for approval, and the Secretary approved

the program in 1981, thus granting West Virginia “primacy”

status -- a status under which its law exclusively regulates coal

mining in the State. See 30 C.F.R. § 948.10 (noting the

Secretary’s approval of West Virginia’s plan). As part of this

program, the West Virginia legis!ature enacted its own statute

entitled the “Surface Coal Mining and Reclamation Act” (the

“West Virginia Coal Mining Act”). See W. Va. Code § 22-3-1

et seq. As amended, the West Virginia Coal Mining Act vests

the Director of the State Division of Environmental Protection

with the authority to administer the Act and otherwise to

provide for the regulation of surface coal mining within the

State. See W. Va. Code § 22-3-4. The West Virginia Act sets

out minimum performance standards that mirror those found in

SMCRA, and the State Director has exercised his statutorily

granted power to promulgate State regulations that parallel

those issued by the Secretary of the Interior pursuant to the

federal Act. See 38 W. Va. Code St. R. § 2-1 et seq. Thus, since

the Secretary’s approval of the West Virginia program in 1981,

the Director has served as the exclusive permitting authority in

the State, and West Virginia has maintained “exclusive

jurisdiction,” with certain exceptions inherent in the federal

oversight provisions, over surface mining regulation within its

borders.

Ill

Bragg brought this action against the State Director under the

“citizen suit” provision of SMCRA, which provides in relevant

part:

[A]ny person having an interest which is or may be adversely

10a

——

—

affected may commence a civil action on his own behalf to

compel compliance with this chapter —

*_* £

(2) against the Secretary or the appropriate State

regulatory authority to the extent permitted by the

eleventh amendment to the Constitution where there is

alleged a failure of the Secretary or the appropriate State

regulatory authority to perform any act or duty under this

chapter which is not discretionary with the Secretary or

with the appropriate State regulatory authority.

The district courts shall have jurisdiction, without regard to

the amount in controversy or the citizenship of the parties.

30 U.S.C. § 1270(a)(2).

The State Director asserted below and now contends that, as

an Official of West Virginia who has been sued in his official

capacity, he is immune from suit in federal court under the

doctrine of sovereign immunity guaranteed by the Eleventh

Amendment. In response to the district court’s reliance on Ex

parte Young, 209 U.S. 123 (1908), to overcome the Eleventh

Amendment bar, the Director argues that the Ex parte Young

exception does not apply because the issues in this case involve

enforcement of West Virginia law, not federal law.

Acknowledging that Bragg nominally asserts violations of both

federal and State law, the Director argues that Bragg actually

seeks to compel the Director “to comply with the approved

West Virginia surface mining program” because once a State

program is approved by the Secretary of the Interior, it is State

law, not federal law, that governs. Thus, the Director concludes

that the Ex parte Young exception for ongoing federal

violations does not apply; rather, Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89 (1984), controls. In

Pennhurst, the Supreme Court held the Ex parte Young doctrine

inapplicable to a suit brought against a State official to compel

lla

his compliance with State law. See 465 U.S. at 106.’

Bragg, on the other hand, contends that the Ex parte Young

exception permits suit against the State Director. She argues

first that Congress, by enacting 30 U.S.C. § 1270(a)(2),

“authorized citizens to bring Ex parte Young suits against State

officials who have the responsibility to comply with SMCRA

and federally-approved State programs under that Act.” Second,

she asserts that her suit seeks to enforce federal, not State, law

because (1) States with federally approved programs are still

bound by federal statutory mandates that govern their activities,

and (2) the buffer zone regulation promulgated by West

Virginia is federal law. Finally, she maintains that West

Virginia, in choosing “to submit a state program for federal

approval, accept[ed] the federal government’s invitation to act

*In addition, the State Director argues that SMCRA provides Bragg a

detailed remedial scheme and that a court should not cast aside that scheme

to permit an action against a State officer based upon Ex parte Young. The

Director details the scheme as follows:

Under 30 U.S.C. § 1267, the Secretary [of the Interior] retains authority

to make “such inspections of any surface coal mining and reclamation

operations as are necessary to evaluate the administration of approved

State program.” SMCRA’s regulations contain procedures for making

any amendments to the State programs that OSM determines are

necessary. 30 C.F.R. part 732. The regulations also prescribe a detailed

process for discontinuing state programs that do not continue to meet

SMCRA’s minimum standards. 30 C.F.R. part 733. This detailed,

remedial scheme protects SMCRA’s minimum nationwide standards,

while preserving the states’ vital Eleventh Amendment rights. He grounds

this argument on the Supreme Court’s decision in Seminole Tribe v.

Florida, 517 U.S. 44, 53 (1996).

Bragg, on the other hand, asserts that her suit is not displacing a statutorily

created scheme but rather is “completely consistent with, and expressly

authorized by, SMCRA’s legislative scheme.” Because we dispose of this

case on other grounds, we do not address this argument.

12a

as regulators of surface coal mining in the state.” She asserts

that West Virginia, by participating in the federal program,

agreed to submit to federal jurisdiction under 30 U.S.C. §

1270(a)(2), thereby waiving its Eleventh Amendment

immunity.

The district court ruled that SMCRA’s grant to citizens to

bring suits against State regulatory authorities “to the extent

permitted by the eleventh amendment,” 30 U.S.C. § 1270(a)(2),

amounts to an “implicit authorization” to citizens to bring Ex

parte Young actions against State officials, and cited Natural

Resources Defense Council v. California Department of

Transportation, 96 F.3d 420, 423-24 (9th Cir. 1996), for

support. The court also rejected the Director’s argument that

State law, not federal law, is being enforced because the State

law is incorporated into federal law, and cited Arkansas v.

Oklahoma, 503 U.S. 91, 110 (1992), for support. See Bragg v.

Robertson, No. 2:98-0636, slip op. at 8 (S.D. W. Va. Oct. 9,

1998).

We begin our analysis by noting that although the literal text

of the Eleventh Amendment appears to restrict only Article III

diversity jurisdiction, we have come to understand that the

Amendment con- firms principles of State sovereign immunity

that are embedded in the constitutional structure and thus that

it bars “citizens from bringing suits in federal court against their

own states.” Litman v. George Mason Univ., 186 F.3d 544, 549

(4th Cir. 1999) (citing Hans v. Louisiana, 134 U.S. 1 (1890));

see also Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that

sovereign immunity also immunizes a State from private

lawsuits brought in its own courts under federal law). And

when, as in this case, a suit is brought only against State

Officials, the suit is barred “when ‘the State is the real,

substantial party in interest.’” Pennhurst, 465 U.S. at 101

(quoting Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S.

459, 464 (1945)). This limit on federal judicial power is an

13a

essential element of the constitutional design, as immunity

“accords the States the respect owed them as members of the

federation,” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddie, Inc., 506 U.S. 139, 146 (1993), and protects the States’

ability “to govern in accordance with the will of their citizens,”

Alden, 527 U.S. at 751. A State’s immunity to suit in federal

court is subject to well established and important exceptions,

however. See S.C. State Ports Auth. v. Fed. Maritime Comm'n,

243 F.3d 165, (4th Cir. 2001) (enumerating six exceptions to

Eleventh Amendment immunity). Sovereign immunity does

not, for example, prevent the United States itself from bringing

suit against an unconsenting State to ensure compliance with

federal law. See United States v. Texas, 143 U.S. 621, 644-45

(1892). Moreover, Congress may abrogate a State’s immunity

pursuant to its enforcement power under § 5 of the Fourteenth

Amendment. See Seminole Tribe, 517 U.S. at 59; Fla. Prepaid

Post Secondary Educ. Expense Bd. v. Coil. Sav. Bank, 527 U.S.

627, 647 (1999) (holding that the Patent Remedy Act was not

a § 5 enactment). A State, of course, may waive its immunity by

“consenting to be sued in federal court.” Litman, 186 F.3d at

550 (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 675 (1999)); see also Idaho

v. Coeur d’Alene Tribe, 521 U.S. 261, 267 (1997); Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). And, as at

issue here, the Eleventh Amendment does not preclude private

individuals from bringing suit against State officials for

prospective injunctive or declaratory relief designed to remedy

ongoing violations of federal law. See Ex parte Young, 209 U.S.

123 (1908); DeBauche v. Trani, 191 F.3d 499, 505 (4th Cir.

1999) (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). Bragg

concedes that her suit is, in reality, directed toward the State of

West Virginia and therefore that Eleventh Amendment

jurisprudence is relevant. She maintains, however, that her suit

is authorized by Ex parte Young, or, alternatively, that West

14a

Virginia has waived its immunity by participating in the federal

program. We address each of these arguments in turn.

Although the Ex parte Young exception to the Eleventh

Amend- ment is well established, its precise contours are not.

See Pennhurst, 465 U.S. at 101-02; see also Coeur d’Alene

Tribe, 521 U.S. at 270-80 (opinion of Kennedy, J., joined by

Rehnquist, C.J.) (urging a “case-by-case approach” to the

application of Ex parte Young). At the very least, however, the

Ex parte Young doctrine provides that “a federal court has

jurisdiction over a suit against a state officer to enjoin official

actions that violate federal law, even if the State itself is

immune from suit under the Eleventh Amendment.” Jd. at 288

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

judgment); see also Green, 474 U.S. at 68; Pennhurst, 465 U.S.

at 102-03. The exception is premised upon the notion,

sometimes called a “fiction,” see, e.g., Coeur d’Alene Tribe,

521 U.S. at 281, that when a State officer violates federal law,

he is stripped of his official character, thus losing the “cloak” of

State immunity. See id. at 288 (O’Connor, J., concurring in part

and concurring in the judgment); Pennhurst, 465 U.S. at 102;

Ex parte Young, 209 U.S. at 159-60. Even though “the State

itself will have a continuing interest in the litigation whenever

State policies or procedures are at stake,”Coeur d’Alene Tribe,

521 U.S. at 269; see also Gr. N. Life Ins. Co. v. Read, 322 U.S.

47, 51 (1944), a court decree enjoining a State officer from

committing future violations of federal law generally will not

upset the careful federal balance established by the Constitution

and confirmed by the Eleventh Amendment. To preserve this

balance, however, “we must ensure that the doctrine of

sovereign immunity remains meaningful, while also giving

recognition to the need to prevent violations of federal law.”

15a

Coeur d’Alene Tribe, 521 U.S. at 269.

But because this balance is a careful one indeed, the Supreme

Court has strictly limited the application of the Ex parte Young

doctrine to circumstances in which injunctive relief is necessary

to “give[ ] life to the Supremacy Clause.” Green, 474 U.S. at

68; see also Pennhurst, 465 U.S. at 105 (recognizing that “the

need to promote the supremacy of federal law must be

accommodated to the constitutional immunity of the States”).

Thus, a federal court cannot order a State official to remedy past

violations of federal law by paying funds out of the State

treasury, given that such relief “is in practical effect

indistinguishable . . . from an award of damages against the

State.” Edelman v. Jordar, 415 U.S. 651, 668 (1974). And as

“it is difficult to think of a greater intrusion on state sovereignty

than when a federal court instructs state officials on how to

conform their conduct to state law,” sovereign immunity also

bars a court’s grant of any type of relief, whether retrospective

or prospective, based upon a State official’s violation of State

law. Pennhurst, 465 U.S. at 106.

These exceptions demonstrate that application of the doctrine

must entail more than. “a reflexive reliance on an obvious

fiction.” Coeur d’Alene Tribe, 521 U.S. at 270. “[J]Just because

a private citizen’s federal suit seeks declaratory injunctive relief

against State officials does not mean that it must automatically

be allowed to proceed under an exception to the Eleventh

Amendment protection.” Bell Atl. Md., Inc: v. MCI Worldcom,

Inc., 240 F.3d 279, 294 (4th Cir. 2001). “Such ‘empty

formalism’ would improperly sacrifice the ‘real interests served

by the Eleventh Amendment.” Jd. (quoting Coeur d’Alene

Tribe, 521 U.S. at 270). Rather, just as the Court did in Coeur

d’Alene Tribe, we must evaluate the degree to which a State’s

sovereign interest would be adversely affected by a federal suit

seeking injunctive relief against State officials, as well as the

extent to which federal, rather than State, law must be enforced

16a

to vindicate the federal interest.

The respective federal and State interests revealed in this case

make the analysis complex because SMCRA was expressly

designed to hand over to the States the task of enforcing

minimum national standards for surface coal mining, providing

only limited federal mechanisms to oversee State enforcement.

Thus, because the federal enactment, in furtherance of its design

to advance State interests, creates the potential for exclusive

State regulatory authority, the federal interest would seem to be

better served by encouraging private citizens to enforce their

claims relating to the State enforcement efforts in State, rather

than federal, court. A more precise evaluation of this interest,

however, as it might affect application of Ex parte Young,

requires us to return to the statutory structure of SMCRA and

the methods by which it employs a cooperative federalism.

As we have noted, under SMCRA Congress intended to

divide responsibility for the regulation of surface coal mining

between the federal government and the States. But

characterizing the regulatory structure of SMCRA as

“cooperative” federalism is not entirely accurate, as the statute

does not provide for shared regulation of coal mining. Rather,

the Act provides for enforcement of either a federal program or

a State program, but not both. Thus, in contrast to other

“cooperative federalism” statutes, SMCRA exhibits

extraordinary deference to the States. See Mark Squillace,

Cooperative Federalism Under the Surface Mining Control and

Reclamation Act: Is This any Way to Run a Government?, 15

Envtl. L. Rep. 10039 (1985) (calling SMCRA’s “broad

delegation” to States “unparalleled”); cf. Bell Atl. Md.,240 F.3d

at 300 (describing analogously how the Telecommunications

Act of 1996 “partially flooded the existing statutory landscape

17a

with specific preempting federal requirements, deliberately

leaving numerous islands of State responsibility”). The

statutory federalism of SMCRA is quite unlike the cooperative

regime under the Clean Water Act, 33 U.S.C. § 1251 ef seq.,

which was construed in Arkansas v. Oklahoma, 503 U.S. 91

(1992). As the Supreme Court noted there, one of the Clean

Water Act’s regulations “effectively incorporate[d]” State law

into the unitary federal enforcement scheme, making State law,

in certain circumstances, federal law. Jd. at 110 (emphasis

added). Under SMCRA, in contrast, Congress designed a

scheme of mutually exclusive regulation by either the U.S.

Secretary of the Interior or the State regulatory authority,

depending on whether the State elects to regulate itself or to

submit to federal regulation. Because West Virginia is a

primacy state, its regulation of surface coal mining on

nonfederal lands within its borders is “exclusive.” See 30

U.S.C. § 1253(a); 30 C.F.R. § 948.10. This federal policy of

encouraging “exclusive” State regulation was careful and

deliberate. The Act’s preliminary findings explain that “because

of the diversity in terrain, climate, biologic, chemical, and other

physical conditions in areas subject to mining operations, the

primary governmental responsibility for developing,

authorizing, issuing, and enforcing regulations for surface

mining and reclamation operations subject to this chapter

should rest with the States.” 30 U.S.C. § 1201(f). According to

the Act, it is the States, not the federal government, that are to

“develop[] and implement{ ] a program to achieve the purposes

of this chapter.” Jd. § 1202(g). To make this point absolutely

clear, SMCRA provides explicitly that when States regulate,

they do so exclusively, see id. § 1253(a), and when the

Secretary regulates, he does so exclusively, see id. § 1254(a).

Even so, SMCRA does manifest an ongoing federal interest

in assuring that minimum national standards for surface coal

mining are enforced. But when a State fails to enforce these

18a

minimum national standards, it does not automatically forfeit

the right of exclusive regulation. SMCRA vindicates its

national-standards policy through a limited and ordered federal

oversight, grounded in a process that can lead ultimately to the

withdrawal of the State’s exclusive control. See 30 U.S.C. §§

1271, 1267; see also In Re Permanent Surface Mining

Regulation Litig., 653 F.2d 514, 520 (D.C. Cir. 1981) (en banc)

(hereinafter "Regulation Litig.") (describing the oversight

process). Until that withdrawal occurs, because an approved

State program must include “a State law which provides for the

regulation of surface coal mining and reclamation operations in

accordance with the requirements of this chapter,” 30 U.S.C. §

1253(a)(1) (emphasis added), the minimum national standards

are attained by State enforcement of its own law. “[I]t is with an

approved state law and with state regulations . . . that mine

operators must comply.” Regulation Litig., 653 F.2d at 519; see

also Background, Surface Coal Mining and Reclamation

Operations Final Rule, 53 Fed. Reg. 26,728, 26,728 (July 24,

1988) (quoting Regulation Litig.).

In sum, even though the States ultimateiy remain subject to

SMCRA, the Act grants “exclusive jurisdiction” to a primacy

State (one with an approved program), thereby conditionally

divesting the federal government of direct regulatory authority.

See Regulation Litig., 653 F.2d at 519; see also 30 U.S.C. §

1253(a) (requiring a would-be primacy State to demonstrate

that it has “the capability of Carrying out the provisions of this

chapter”). Therefore, when a State’s program has been

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

State law on matters involving the enforcement of the minimum

national standards; whereas, on matters relating to the good

Standing of a State program, SMCRA remains directly

applicable. See Regulation Litig., 653 F.2d at 519 (observing

that “judicial appeals of permit decisions are matters of State

jurisdiction in which the Secretary plays no role”); see also 30

19a

U.S.C. § 1276(e).

Bragg argues, however, that despite the federal government’s

conditional grant of “exclusive jurisdiction” to West Virginia,

the national minimum standards set out in SMCRA retain

operative force against West Virginia. For example, her

complaint asserted that the State Director had violated

nondiscretionary duties found in 30 U.S.C. § 1260, which sets

out requirements for permit approval, and in § 1265, which

establishes standards for reclaiming mined property and

preserving the environment.

To construe SMCRA in the manner urged by Bragg,

however, would circumvent the carefully designed balance that

Congress established between the federal government and the

States because the effect of a citizen suit to enjoin officials in

a primacy State to comport with the federal provisions

establishing the core standards for surface coal mining would

end the exclusive State regulation and undermine the federalism

established by the Act. Thus, rather than advancing the federal

interest in preserving this statutory design, Bragg’s

interpretation would frustrate it.

While it is true that Congress’ desire to implement minimum

national standards for surface coal mining drives SMCRA,

Congress did not pursue, although it could have, the direct

regulation of surface coal mining as its preferred course to

fulfill this desire. Nor did Congress invite the States to enforce

federal jaw directly. By giving States exclusive regulatory

control through enforcement of their own approved laws,

Congress intended that the federal law establishing minimum

national standards would “drop out” as operative law and that

the State laws would become the sole operative law. Cf Nat’!

Wildlife Fed’n v. Lujan, 928 F.2d 453, 464 n.1 (D.C. Cir. 1991)

(Wald, J., concurring) (recognizing that the provisions of

SMCRA do not “technically apply” in primacy States). Thus,

all of the federal provisions establishing the minimum national

20a

standards are not directly operative in West Virginia so long as

it remains a primacy State. Cf Haydo v. Amerilkohl Mining,

Inc., 830 F.2d 494, 498 (3d Cir. 1987) (noting that “SMCRA

itself is not violated by an operator’s violation of a permit

condition” (emphasis added)). This is not to say, of course, that

all of SMCRA’s provisions “drop out.” The Act’s structural

provisions creating the facility through which the State can

attain and can lose its primacy status remain directly operative.

See, e.g. 30 U.S.C. §§ 1253, 1254, 1267, 1271. But these

provisions are not at issue in this case. Bragg’s complaint

essentially challenges the Director’s failure to follow the

permitting requirements set forth in 30 U.S.C. § 1260 and the

environmental protection performance standards set forth in §

1265, and only § 1260 claims remain in Counts 2 and 3.

Because 30 U.S.C. § 1260 establishes minimum standards

that have been adopted by West Virginia and approved by the

Secretary, see W. Va. Code § 22-3-18,4 any violation of this

standard involves State law, not federal law, even though the

relevant language in the State law is identical to that in the

federal law. Accordingly, any injunction against State officials

Approval of Permanent Program Amendments from the State of Ala., 51

Fed. Reg. 29,098, 29,099 (Aug. 14, 1986); Conditional Approval of the

Permanent Program Submission from the State of Ark. 45 Fed. R

77,003, 77,015 (Nov. 21, 1980). In accordance with the Secretary’s

position, West Virginia enacted W. Va. Code § 22-3-18 to satisfy the

requirements imposed by 30 U.S.C. § 1260.

2la

to enforce this provision would command them to comport with

the State’s own law, not federal law, because only the State law

is operative and directly regulates the issuance of permits.

In this case, the district court’s injunction created two layers

of indignity, as it not only directed the Director to make

findings as required by the West Virginia Act, see W. Va. Code

§ 22-3-18, but in so doing, also ordered the Director to make

findings required by the state-law buffer zone regulation, see

W. Va. Code St. R. tit. 38 § 2-5.2. That federal command to a

State official to comply with the State’s law was so abhorrent

to the values underlying our federal structure as to fall outside

the bounds of the Ex parte Young exception. In Pennhurst, the

Supreme Court stated:

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

sovereignty than when a federal court instructs state officials

on how to conform their conduct to state law. Such a result

conflicts directly with the principles of federalism that

underlie the Eleventh Amendment. We conclude that Young

and Edelman are inapplicable in a suit against state officials

on the basis of state law.

465 U.S. at 106. To be certain, the state-law claims at issue in

Pennhurst were of a different character from the claims at issue

in this case. In Pennhurst, the Supreme Court noted that

because the lower court had exercised pendent jurisdiction over

the state-law claims, see id. at 104, an Ex parte Young

injunction to enforce those claims was not necessary to

vindicate the supremacy of federal law, see id. at 106. In this

case, the federal interest in adjudicating the dispute is

undoubtedly stronger, as the rights at issue were created by the

State pursuant to a federal invitation to implement a program

that met certain minimum standards set by Congress. Moreover,

the federal government, through the Secretary’s oversight role,

22a

retains an important modicum of control over the enforcement

of that State law. See 30 U.S.C. §§ 1271, 1267; Regulation

Litig., 653 F.2d at 520.

Nonetheless, although “the difference between the type of

relief barred by the Eleventh Amendment and that permitted

under Ex parte Young will not in many instances be that

between day and night,” Edelman, 415 U.S. at 667, we

conclude that the injunctive relief sought against the State

Director in this case “falls on the Eleventh Amendment side of

the line” by some distance, Coeur d’Alene T; ribe, 521 U.S. at

281, and is therefore barred by the Eleventh Amendment. The

Pennhurst Court made clear that its decision was driven by the

indignity to which a State is subject when a federal court orders

that State’s officers to conform their conduct with their own

laws -- a concern that is also present in this case. See 465 U.S.

at 106. In subsequent Eleventh Amendment decisions, the

States’ dignity interest has played an increasingly critical role.

See, e.g., Alden v. Maine, 527 U.S. 706, 715 (1999) (noting that

States “retain the dignity, though not the full authority, of

sovereignty”); Coeur d’Alene Tribe, 521 U.S. at 268 (stating

that “immunity is designed to protect” the “dignity and respect

afforded a State”); see also S.C. State Ports Auth. , 243 F.3d at

171 (noting that it was “the spectre of private suits against the

States that mattered to the founders”). That dignity interest does

not fade into oblivion merely because a State’s law is enacted

to comport with a federal invitation to regulate within certain

parameters and with federal agency approval. Cf United States

Dep't of Energy v. Ohio, 503 U.S. 607, 625 (1992) (noting that

state-law penalties approved by the Environmental Protection

Agency and supplanting the Clean Water Act did not “arise

under federal law” as meant in 28 U.S.C. § 1331). And

particularly in the absence of an explicit incorporation of State

law into federal law, cf. Arkansas, 503 U.S. at 110-11; Geis v.

Bd. of Educ., 774 F.2d 575, 581 (3d Cir. 1985), States retain a

23a

unique interest in the enforcement of their own law against their

own officers. This is especially true where, as here, Congress

has reserved to the States the “exclusive” right to set the rules

by which the regulation of surface mining will be governed.

The West Virginia statute and implementing regulations are

solely the product of its own sovereignty, enacted pursuant to

its democratic processes, and, as was the case in Pennhurst, a

State’s sovereign dignity reserves to its own institutions the task

of keeping its officers in line with that law.

Moreover, it is simply not the case that an Ex parte Young

injunction is necessary to “vindicate the supreme authority of

federal law” in this context. Pennhurst, 465 U.S. at 106. The

SMCRA citizen-suit provision is designed not to vindicate

individual rights, but rather to supplement the Secretary’s

enforcement power under 30 U.S.C. § 1271(b) -- a power that

is unaffected by the constraints of the Eleventh Amendment.

See Seminole Tribe v. Florida, 517 U.S. 44, 71 n.14 (1996)

(citing United States v. Texas, 143 U.S. 621, 644-45 (1892)). If

West Virginia’s program no longer comports with the federal

blue-print found in SMCRA, the Secretary may instigate an

enforcement proceeding and revoke West Virginia’s authority

to regulate surface mining. Additionally, as part of its approved

State program, West Virginia enacted a citizen suit provision

that, parroting the language of its federal counterpart, gives

affected individuals the right to sue in State court to compel the

Director’s compliance with the West Virginia Act. See W. Va.

Code § 22-3-25. Because the West Virginia courts are open to

such suits, the federal interest in maintaining the State’s

compliance with its own program may be fulfilled via suit in

that forum, in a manner that does not offend the dignity of the

State. See Coeur d'Alene Tribe, 521 U.S. at 274 (opinion of

Kennedy, J.).

In sum, rather than asking the States to enforce the federal

law, Congress through SMCRA invited the States to create their

24a

own laws, which would be of “exclusive” force in the

regulation of surface mining within their borders. See Hodel,

452 U.S. at 289 (noting that under SMCRA, states “enact and

administer their own regulatory programs”). An order from an

Article III court instructing an officer of such a State to conform

his conduct with a duly enacted State law would create an

affront to that State’s dignity similar to that created by the

orders at issue in Pennhurst. And particularly when that State’s

law specifically provides for its own enforcement in a State

forum, the concerns that gave rise to the exception of Ex parte

Young evaporate. ¢

Accordingly, we conclude that Bragg’s claims filed against

the State Director in federal court are not authorized by the Ex

parte Young exception to the Eleventh Amendment.

Alternatively, Bragg contends that West Virginia waived its

sovereign immunity in federal court when it elected to submit

its program to the Secretary for approval and thereby accepted

the federal government’s invitation to act as the regulator of

surface coal mining in the State. She argues that in exchange for

giving the State the right to regulate surface coal mining,

“Congress required the states to agree to submit to federal

jurisdiction under [30 U.S.C.] § 1270(a)(2) to review their non-

discretionary actions for conformity with federal law" and

therefore that the State "waived its immunity.” We cannot

agree.

“If Congress is not unmistakably clear and unequivocal in its

intent to condition a gift or gratuity on a State’s waiver of its

sovereign immunity, we cannot presume that a State, by

accepting Congress’ proffer, knowingly and voluntarily

assented to such a condition.” Bell Atl. Md., 240 F.3d at 292.

Congress provided no “unequivocal” warning that States which

25a

submit a program for approval by the Secretary thereby waive

their immunity. To the contrary, the citizen-suit provision

explicitly authorizes a compliance action “against . . . the

appropriate State regulatory authority,” but only “fo the extent

permitted by the eleventh amendment to the Constitution.” 30

U.S.C. § 1270(a)(2) (emphasis added). Far from expressing

Congress’ clear intent that participating States waive Eleventh

Amendment immunity, this language actually preserves a

State’s sovereign immunity. See Burnette v. Carothers, 192

F.3d 52, 57 (2d Cir. 1999) (concluding that similar language in

the Clean Water Act, the Resource Conservation and Recovery

Act, and the Comprehensive Environmental Response,

Compensation and Liability Act did not evidence Congress’

intent to abrogate state immunity). Accordingly, we reject

Bragg’s argument that West Virginia waived its sovereign

immunity in federal court when it accepted Congress’ invitation

to assume “exclusive jurisdiction” over the regulation of surface

mining within its borders.

In their appeal, the intervening coal companies and coal

associa- tions (collectively, “coal companies”) contend that the

district court lacked subject matter jurisdiction to enter the

consent decree, dated February 17, 2000, which approved a

settlement that disposed of a number of Bragg’s claims against

the Director. See Bragg, 83 F. Supp. 2d at 722. They base their

challenge on two points. First, they argue that the suit at issue

did not fall within the class of suits over which 30 U.S.C. §

1270(a)(2) provides jurisdiction. Noting that the statute creates

a cause of action for the Director’s failure to perform duties

“which are not discretionary,” the coal companies contend that

the permitting decisions at issue in this case arose from purely

discretionary duties. They also maintain that because the duties

26a

EE ee eT mT See ee ee

at issue arose from the West Virginia statute and regulation, §

1270(a)(2) is not pertinent because the duties sought to be

enforced are not duties “under this chapter.” Second, they argue

that because Counts 2 and 3 were barred by the Eleventh

Amendment, the counts settled by the consent decree were also

barred. Even though Bragg and the Director vol untarily entered

into the settlement agreement and submitted it to the district

court for approval by a consent decree, the district court’s

power to enter the decree depended on its having subject matter

jurisdiction over the case. See, e.g., Local No. 93, Int'l Assoc.

of Firefighters v. City of Cleveland, 478 U.S. 501, 525 (1986).

And, of course, a Challenge to subject matter jurisdiction is

appropriately raised at any point in the proceedings. See, ¢. Z.,

Clinton vy. City of New York, 524 U.S. 41 7, 428 (1998).

Nevertheless, neither of the coal companies’ jurisdictional

arguments is truly a challenge to subject matter jurisdiction.

The coal companies’ argument that the duties at issue were

neither “nondiscretionary” nor “under this chapter,” while

possibly correct, nevertheless does not challenge the lower

court’s jurisdiction, but rather the merits of the settled claims.

Jurisdiction is proper unless “the cause of action alleged is so

patently without merit as to justify . . . the court’s dismissal for

want of jurisdiction.” Duke Power Co. v. Carolina Envil. Study

Group, Inc., 438 U.S. 59, 70 (1978) (internal quotation marks

and citations omitted) (alteration in original); see also Steel Co.

v. Citizens for Better Government, 523 U.S. 83, 89 (1998)

(same). It is now settled that 30 U.S.C.§ 1270 confers on

federal district courts Subject matter jurisdiction over at least

some sorts of claims. See Molinary v. Powell Mtn. Coal Co. ,

125 F.3d 231, 235-37 (4th Cir. 1997); Regulation Litig., 653

F.2d at 519. And Bragg’s complaint, which alleged that the

duties at issue in the consent decree were “nondiscretionary”

and “under this chapter,” invoked the court’s jurisdiction under

§ 1270. It may be the case, as the coal companies claim, that

27a

further legal analysis would have revealed that the duties

alleged were either “discretionary” or not “under this chapter.”

But that type of argument would be properly raised not in a

Rule 12(b)(1) motion to dismiss for lack of subject matter

jurisdiction, but rather in a Rule 12(b)(6) motion to dismiss for

failure to state a claim. See Fogel v. Chestnutt, 668 F.2d 100,

105-06 (2d Cir. 1981) (Friendly, J.) (discussing the tendency of

courts to conflate these two concepts); 13 Charles Alan Wright,

Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure § 3522, at 78-79 (1984) (same); see also Steel Co.,

523 U.S. at 89 (“[T]he district court has jurisdiction if the right

of the petitioners to recover under the complaint will be

sustained if the Constitution and laws of the United States are

given one construction and will be defeated if they are given

another” (internal quotation marks and citation omitted)); cf

City of Yonkers v. United States, 320 U.S. 685, 695 (1944)

(Frankfurter, J., dissenting) (“‘Jurisdiction’ competes with

‘right’ as one of the most deceptive of legal pitfalls”). As long

as Bragg’s claims were not clearly frivolous from the face of the

complaint, jurisdiction was proper, and a challenge to the

consent decree may not be made on a jurisdictional basis.

The coal companies also contend that because Counts 2 and

3 were barred by the Eleventh Amendment, the district court’s

exercise of jurisdiction over the consent decree was also

inappropriate. §:: the coal companies may not assert a defense

‘Moreover, even if subject-matter jurisdiction may be questioned under

30 U.S.C. § 1270(a\(2), Bragg has also invoked jurisdiction by asserting

claims under the Clean Water Act, 33 U.S.C. §§ 1251 et seg., NEPA, 42

U.S.C. § 4321 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 701-

706, and the All Writs Act, 28 U.S.C. § 1651(a), and invoking 28 U.S.C. §§

1331, 1361, 2201, and 2202. If her claim under SMCRA were actually one

to enforce a State law claim, the district court would arguably still have

jurisdiction over that claim under 28 U.S.C. § 1367(a).

28a

on behalf of the Director that the Director chooses not to assert.

Sovereign immunity, unlike the subject matter jurisdiction

requirement, may be waived by the State, see Coeur d'Alene

Tribe, 521 U.S. at 267, and it may be the case that when the

Director entered into the consent decree and invoked the district

court’s jurisdiction over it, West Virginia waived its immunity

with respect to the claims settled in that decree. See Coll. Sav.

Bank, 527 U.S. at 675-76 (citing Gunter v. Atl. Coast Line R.R.,

200 U.S. 273, 284 (1906)). But, in any event, the Director has

not asserted this defense to the consent decree. Because

sovereign immunity reflects the federal courts’ respect for the

States, we need not undermine that respect by forcing a State to

assert immunity when it chooses not to do so. Cf Wisc. Dep't

of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (stating that a

court “can ignore” the issue of Eleventh Amendment immunity

“[u]nless the State raises the matter”). In sum, we reject the coal

companies’ challenge to the settlement agreed to by the

Director and the consent decree entered by the district court

approving it.

For the reasons given, the consent decree of February 17,

2000, is affirmed, but the judgment of the district court

enjoining the State Director is vacated, and the case is

remanded to the district court with instructions to dismiss

Bragg’s unsettled claims asserted in Counts 2 and 3 without

prejudice to any suit she may wish to pursue in West Virginia

State court.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED WITH INSTRUCTIONS.

29a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA.

Patricia BRAGG, et al.,

Plaintiffs,

Vv. Civil Action No. 2:98-0636

[Entered Oct. 9, 1998]

Dana ROBERTSON, Colonel,

District Engineer, United States

Army Corps of Engineers,

Huntington Division, ef al.,

Defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are (1) the Arch Coal subsidiaries’ motion to dismiss

Counts 1, 3, 4, 12 & 13; (2) the Arch Coal subsidiaries’ motion

to dismiss the claims of Patricia Bragg and injunctive relief

claims which target individual permits or permit applications;

and (3) Defendant Michael Miano’s motion to dismiss.’ The

'Pending also are (1) motion to adopt all motions which are favorable to

the West Virginia Mining and Reclamation Association and West Virginia

Coal Association (“Associations”); (2) motion to exceed page limit for

memoranda filed by the Arch Coal subsidiaries; and (3) motion to exceed

page limit for memoranda filed by Plaintiffs. A fter careful consideration, the

Court GRANTS each of these three motions.

Pending also is Plaintiffs’ motion for leave to file a surreply. After

careful consideration, the Court DENIES the motion.

The Court does not address Miano’s argument the case must be dismissed

for failure to join indispensable parties, which ground was withdrawn in his

reply memorandum.

30a

matters are ripe for review.

I. FACTUAL BACKGROUND

On July 16, 1998 Plaintiffs filed this civil action seeking

declaratory and injunctive relief, as well as fees and costs, under

the citizen suit provision of the Surface Mining Control and

Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1270(a).

They named as Defendants Colonel Dana Robertson, District

Engineer; Lieutenant Joe Ballard, Chief of Engineers and

Commander; Michael Gheen, Chief of the Regulatory Branch,

Operations and Readiness Division; and their employer, the

United States Army Corps of Engineers. Plaintiffs also named

as Defendant Michael Miano, Director of the West Virginia

Division of Environmental Protection.

In Counts One through Ten, Plaintiffs sued Miano, alleging

a pattern and practice of his violating mandatory

non-discretionary duties under SMCRA and the West Virginia

state regulatory program approved under that Statute.

In Counts Eleven though Thirteen, Plaintiffs sued the United

States Corps of Engineers (“the Corps,” “Corps”) officials,

alleging a pattern and practice of failing to carry out their

Statutory duties under the National Environmental Policy Act,

42 U.S.C. §§ 4321 er seq. (“NEPA”), the Clean Water Act, 33

U.S.C. § 1344 (“CWA”), and the Administrative Procedure

Act, 5 U.S.C. § 553, 706(2)(A) (“APA”). Plaintiffs allege it is

beyond the Corps’ jurisdiction under the CWA to regulate

valley fills created for the disposal of waste material, or that the

3la

Il. DISCUSSION

A. Standard for Rule 12(b)(6) Motions

Our Court of Appeals has often stated the settled standard

governing the disposition of a motion to dismiss pursuant to

Rule 12(b)(6), Federal Rules of Civil Procedure:

In general, a motion to dismiss for failure to state a claim

should not be granted unless it appears certain that the

plaintiff can prove no set of facts which would support its

claim and would entitle it to relief. In considering a motion to

dismiss, the court should accept as true all well-pleaded

allegations and should view the complaint in a light most

favorable to the plaintiff.

Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

Cir.1993), cert. denied, 510 U.S. 1197 (1994) (citations

omitted); see also Brooks v. City of Winston-Salem, 85 F.3d

178, 181 (4th Cir. 1996); Gardner v. E.I. Dupont De Nemours

and Co., 939 F.Supp. 471, 475 (S.D.W.Va.1996).

It is through this analytical prism the Court evaluates

Defendants’ motion.

B. Eleventh Amendment

1. Ex parte Young

Defendant Miano argues all claims against him should be

dismissed because he, as the official in a state agency, is

immune from suit by virtue of the Eleventh Amendment. “The

sovereign immunity embodied in the Eleventh Amendment

protects an unconsenting state against suit brought by private

parties in federal court.” CSX Trans., Inc. v. Bd. of Public

32a

Works, 138 F.3d 537, 539-40 (4th Cir.1998) (citing Seminole

Tribe v. Florida, 517 U.S. 44, 52-54 (1996)), petition for cert.

filed, 66 U.S.L.W. 3791 (U.S. June 8, 1998) (No. 97-1981).

Here, the Court need only address the application of a

well-established, narrow exception to the Eleventh

Amendment, Ex parte Young. This doctrine is available when

a plaintiff seeks prospective injunctive relief against a State

official for continuing violations of federal law. The Supreme

Court has indicated the exception applies only in situations in

which Congress intended to authorize its av: ilability because

the cause of action has a limited remedial scheme. See

Seminole Tribe, 517 U.S. at 73-76; see also Lynn v. West, 134

F.3d 582, 587-88 (4th Cir.1998), petition for cert. filed, 66

U.S.L.W. 3750 (U.S. May 11, 1998) (No. 97-1829) (applying

the Ex parte Young exception).

Because Plaintiffs have sued Miano in his official capacity as

a State official and seek only prospective, injunctive relief, the

Court turns to whether Congress intended Young to be available

for citizen suits under SMCRA. It is clear Congress intended

SMCRA citizen suits to be available to the full extent of the

Eleventh Amendment. The citizen suit provision states:

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

*Congress may abrogate the immunity "by a clear expression of

legislative intent to abrogate enacted pursuant to a valid exercise of power.”

CSX Trans., Inc. v. Bd. of Public Works, 138 F.3d 537, 539-40 (4th

Cir.1998), petition for cert. filed, 66 U.S.L.W. 3791 (U.S. June 8, 1998)

(No. 97-1981). After the Supreme Court’s decision in Seminole Tribe, an

abrogation is effective only if it is based upon Congress’ power in Section

Five of the Fourteenth Amendment. Id. This principle does not affect the

Court’s decision in this matter, which turns on a well- established exception

to the Eleventh Amendment immunity and construction of the SMCRA

Statute itself.

*30 U.S.C. § 1270(b) has no application to this discussion.

33a

person having an interest which is or may be adversely

affected may commence a civil action on his own behalf to

compel compliance with this chapter--

(2) against the Secretary or the appropriate State

regulatory authority to the extent permitted by the

eleventh amendment to the Constitution....

30 U.S.C.A. § 1270(a) (West 1998). Congress intended

SMCRA to “assure ... public participation in the ... enforcement

of regulations, standards, reclamation plans, or programs

established by the Secretary or any State under this Act.” Jd. §

1202(i). Similarly, “citizen involvement in all phases of the

regulatory scheme will help insure that the decisions and

actions of the regulatory authority are grounded upon complete

and full information .” H.R.Rep. No. 95-218, 95th Cong., Ist

sess. 88-89, reprinted in 1977 U.S.C.C.A.N. 593, 625.

Based on the inclusion of the citizen suit provision as an

integral part of a statute with a limited remedial scheme,’ it is

reasonable to conclude Congress implicitly authorized citizens

to bring suit under the Ex parte Young exception. Natural

Resources Defense Council v. Cal. Dep’t of Transp., 96 F.3d

“Miano argues in his reply brief that Congress provided a detailed

remedial scheme, comparable to that in Seminole Tribe, such that the Ex

parte Young exception does not apply. The remedial scheme to which he

refers is that created in the regulations giving OSM the authority to evaluate

WVDEP’s administration of SMCRA and to take steps to withdraw

approval of a state program for serious failure and inability to administer the

program properly. As an initial matter, the Court notes Seminole Tribe

referred particularly to a “detailed remedial scheme for the enforcement

against a State of a statutorily created right” rather than simply a remedial

scheme of any type. A fter careful consideration, the Court finds the process

through which OSM may exercise oversight over WVDEP is not the type

of detailed remedial scheme which suspends the Court’s ability to hear the

case.

34a

420, 423-24 (9th Cir.1996) (post-Seminole Tribe; Clean Water

Act); see also Powder River Basin Resource Council v. Babbitt,

54 F.3d 1477, 1482-83 (10th Cir.1995) (pre-Seminole Tribe;

SMCRA). Accordingly, Miano’s motion to dismiss is DENIED

on this ground.

2. Alleged Violations of Federal Law

Miano next argues Plaintiffs allege violations of state law by

a State official, which claim is barred by the Eleventh

Amendment. Sée Martin Sales & Processing, Inc. v. W. Va.

Dep't of Energy, 815 F.Supp. 940, 943 n. 1 (S.D.W.Va.1993).

Miano contends his mandatory non-discretionary duties are

based entirely in state law, i.e., the WVSMCRA and its state

regulations.

Miano’s argument focuses on only one portion of the entire

regulatory scheme. Plaintiffs seek to enforce Miano’s “failure

... to perform any act or duty under this chapter which is not

discretionary ... with the appropriate State regulatory authority.”

30 U.S.C. 1270(a)(2) (emphasis added). Miano correctly

recognizes the specific duties that Plaintiffs allege are being

violated appear in the WVSMCRA and state regulations. The

language and structure of the SMCRA demonstrate, however,

that these duties under an approved State program, such as

West Virginia’s, are incorporated into federal law.

The federal SMCRA created “a program of cooperative

federalism that allows States, within limits established by

Jederal minimum standards, to enact and administer their own

regulatory program” which “mandat{es] compliance with the

full panoply of federal performance standards, with

enforcement responsibility lying with either the State or Federal

Government.” Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264, 268-69 (1981) (emphasis added). Under

“cooperative federalism,” a state may become the “State

35a

regulatory authority,” which is the agency with the “primary

responsibility at the State level for administering this chapter.”

30 U.S.C. § 1253, 1291(26) (emphasis added). All parties agree

WVDEP has become such a State reguiatory authority, and

Miano, as its director, is responsib)e for administering the

SMCRA in West Virginia.

As a part of this administration and enforcement plan, federal

law incorporates all provisions of an approved State program.

See 30 C.F.R. §§ 733.11 (1997) (“States with an approved State

program shall implement, administer, enforce and maintain it

in accordance with the Act, this chapter and the provisions of

the approved State program.”), 900.11-12 (stating that upon

approval of the State regulatory program, the program is

“codified” in a Part of the Code of Federal Regulations reserved

for that state). The Supreme Court has recognized a similar

incorporation feature. See Arkansas v. Oklahoma, 503 U.S. 91,

110 (1992) (Clean Water Act) (“This regulation effectively

incorporates into federal law those state-law standards the

Agency reasonably determines to be ‘applicable.’ In such a

situation, then, state water quality standards--promulgated by

the States with substantial guidance from the EPA and

approved by the Agency--are part of the federal law of water

pollution control.”) See also Molinary v. Powell Mountain Coal

Co., Inc., 125 F.3d 231, 234-37 (4th Cir.1997) (upholding

OSM’s construction that state- promulgated regulations

comprising a federally-approved State program under SMCRA

are “issued pursuant to” SMCRA and can be the basis for a

citizen suit filed under SMCRA), cert. denied, --- U.S. ---, 118

S.Ct. 1056 (1998).* Taking into account the entire SMCRA

*‘Miano argues Molinary is not applicable because it construed Section

1270(f) rather than Section 1270(a). Although the Molinary claim was

brought under Section 1270(f), the Fourth Circuit’s discussion specifically

harmonizes Section 1270(f) with Section 1270(a)(1), 125 F.3d at 236, and

36a

format, Plaintiffs properly allege violations of federal law,

which allegations do not offend the Eleventh Amendment.

Accordingly, the Court DENIES Miano’s motion to dismiss on

this ground.

C. Exhaustion of State Remedies

The Supreme Court has outlined the analysis to be used in

determining whether Plaintiffs must exhaust administrative

remedies:

The doctrine of exhaustion of administrative remedies is one

among related doctrines ... that govern the timing of federal

court decisionmaking. Of “paramount importance” to any

exhaustion inquiry is congressional intent. Where Congress

specifically mandates, exhaustion is required. But where

Congress has not clearly required exhaustion, sound judicial

discretion governs.... Nevertheless even in this field of

judicial discretion, appropriate deference to Congress’ power

to prescribe the basic procedural scheme under which a claim

may be heard in federal court requires fashioning of

exhaustion principles in a manner consistent with

congressional intent and any applicable statutory scheme.

This Court has long acknowledged the general rule that

parties exhaust prescribed administrative remedies before

seeking relief from the federal courts. Exhaustion is required

because it serves the twin purposes of protecting

administrative agency authority and promoting judicial

efficiency.

McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). See also

would similarly support the Court’s construction of Secwon { d'Wa)(2).

37a

Volvo GM Heavy Truck Corp. v. United States Department of

Labor, 118 F.3d 205, 208-09 (4th Cir.1997) (reviewing

McCarthy and Darby v. Cisneros, 509 U.S. 137 (1993)); Barnes

v. Int’l Amateur Athletic Fed., 862 F.Supp. 1537, 1542-43

(S.D.W.Va.1993) (Copenhaver, J.) (reviewing McCarthy).

Administrative review allows an agency to correct its own

mistakes, avoids unnecessary encumbrances of limited judicial

resources, and prevents piecemeal litigation. McCarthy, 503

U.S. at 145. “‘In determining whether exhaustion is required,

federal courts must balance the interest of the individual in

retaining prompt access to a federal judicial forum against

countervailing institutional interests favoring exhaustion.”

Volvo, 118 F.3d at 209 (quoting McCarthy, 503 U.S. at 146)

(citing also Bowen v. City of New York, 476 U.S. 467, 484, 106

S.Ct. 2022, 2032, 90 L.Ed.2d 462 (1986) (“application of

exhaustion doctrine is ‘intensely practical’.... The ultimate

decision of whether to waive exhaustion ... should be guided by

the policies underlying the exhaustion requirement.”)).

Miano and the Arch Coal subsidiaries each argue the suit

must be dismissed because Plaintiffs failed to exhaust their state

remedies. Both arguments turn on the application of Section

1276(e), which states:

Action of the State regulatory authority pursuant to an

approved State program shall be subject to judicial review by

a court of competent jurisdiction in accordance with State

law, but the availability of such review shall not be construed

to limit the operation of the rights established in section 1270

of this title except as provided therein.

30 U.S.C.A. § 1276. Section 1270,° the citizen suit provision

*Section 1270 states in relevant part:

38a

(ni tala

under which Plaintiffs proceed, requires written notice of the

violation be given sixty days before the complaint is filed.

In Section 1276(e), Congress has not specifically mandated

exhaustion of administrative remedies for citizen suits.’ Instead,

the provision explicitly states the availability of administrative

remedies “shall not be construed to limit the operation” of the

citizen suit provision. The only fair construction of this

language is that it carves out an exception to the normal

exhaustion requirement.®

No action may be commenced--

| (1) under subsection (a)(1) of this section--

(A) prior to sixty days after the plaintiff has given notice in writing

of the violation (i) to the Secretary, (ii) to the State in which the violation

occurs, and (iii) to any alleged violator; or

(B) if the Secretary or the State has commenced and is diligently

prosecuting a civil action in a court of the United States or a State to require

compliance with the provisions of this chapter, or any rule, regulation,

order, or permit issued pursuant to this chapter, but in any such action in a

court of the United States any person may intervene as a matter of right; or

(2) under subsection (a)(2) of this section prior to sixty days after the

plaintiff has given notice in writing of such action to the Secretary, in such

manner as the Secretary shall by regulation prescribe, or to the appropriate

State regulatory authority, except that such action may be brought

immediately after such notification in the case where the violation or order

complained of constitutes an imminent threat to the health or safety of the

plaintiff or would immediately affect a legal interest of the plaintiff.

"The Court restricts its inquiry to whether an exhaustion requirement

applies to a citizen suit and does not address other suits arising under

SMCRA. See Mullins Coal Co. v. Clark, 759 F.2d 1142, 1146 (4th

Cir.1985) (noting exhaustion is generally required in SMCRA suits but not

discussing citizen suits).

*The Arch Coal subsidiaries argue "a plain reading” of the language

Suggests only that the availability of judicial review does not preempt a

citizen suit in federal court. Reply of Permittee Intervenors Supp. Mot. to

Dismiss Claims of Patricia Bragg at 3 (citing Robert E. Beck, The Current

39a

Because Congress has not specifically mandated exhaustion,

the question lies within the sound discretion of the Court. In

exercising its discretion, the Court must consider congressional

intent and the basic statutory scheme at issue. Weighing these

elements, as well as consideration for allegations of a pattern

and practice of violations, the Court holds Plaintiffs need not

exhaust administrative remedies before pursuing this civil

action.

Besides noting the only fair construction of the statutory

language at issue, see supra, the Court recognizes Congress

provided the citizen suit vehicle in addition to the more

traditional judicial review of agency action. Congress provided

this remedy not simply to offer affected citizens a vehicle for

relief, but also to supplement regulation by government

agencies that have limited budgets, with regulation by those

with a significant incentive to regulate, the affected citizens. See

H.R.Rep. No. 95-218, 95th Cong., 1st Sess. 88-89, reprinted in

1977 U.S.C.C.A .N. 593, 625 (“The success or failure of a

national coal surface mining regulation program will depend, to

a significant extent, on the role played by citizens in the

regulatory process. The State or Department of Interior can

employ only so many inspectors, only a limited number of

inspections can be made on a regular basis and only a limited

amount of information can be required in a permit or bond

release application or elicited at a hearing.... While citizen

participation is not, and cannot be, a substitute for

governmental authority, citizen involvement in all phases of the

regulatory scheme will help insure that the decisions and

Effort in Congress to Amend the Surface Mining Control and Reclamation

Act of 1977), 8 Fordham Envtl. LJ. 607, 623 (1997)). Notably, the

subsidiaries offer only a few vague, conclusory paragraphs from the Beck

article to support the argument. The Court finds no compelling basis for the

proposition.

40a

actions of the regulatory authority are grounded upon complete

and full information.”).

Furthermore, the Court finds the congressional intent

expressed in legislative history does not contradict the only fair

construction of Section 1276(e)’s language. As is to be

expecied when parsing congressional intent, each side argues

the legislative history Supports its argument. After careful

consideration, the Court finds Congress did not intend to

require exhaustion of administrative review before citizen suits

could be filed.

First, Congress rejected a substitute bill that removed the

Section 1276(e) language. As Plaintiffs illuminate, several

congressmen and the Department of the Interior disagreed with

the citizen suit provision in the 1974 bill, which is substantially

similar to the enacted language. See H.R.Rep. No. 93-1072,

93rd Cong., 2d Sess. 28, Ex. 1, Pls.’ Resp. to Miano’s Mot.

Dismiss; id. at 224 (dissenting committee members’ objection

that citizen suit is available “on top of the judicial review

provisions” and “in addition to all other existing remedies”).

The dissenting congressmen failed in their attempt to pass a

substitute bill that would have eliminated the language of

Section 1276(e). See id. at 199-239; 120 Cong. Rec. 24080-81

(July 17, 1974).

Second, Congress specifically amended language in Section

1270 to prevent collateral attacks on the permit filed against the

operator, but did not prohibit such attacks filed against a

governing agency. See H.R.Rep. No. 95-218 at 67 (1977),

reprinted in 1977 U.S.C.C.A.N. 593, 606; Ex. 1, Arch Coal

subsidiaries’ Reply to Mot. Dismiss Braggs’ Claims.

Comparing the earlier language to the enacted language reveals

Congress’ clear intent, expressed in the House Report to H.R.

2, id., to prevent collateral permit attacks filed against

operators. What can be inferred, therefore, is that Congress

contemplated and did not object to collateral attacks on permits

4la

filed against a governing agency, as is done here.

Finally, the Court recognizes that, contrary to Defendants’

characterizations, Plaintiffs are not challenging one or more

particular permits or permit applications. Instead, Plaintiffs

allege agencies have engaged in a pattern and practice of

violations. If Plaintiffs were required to challenge each permit

or permit application through the appropriate avenues of

administrative review, such an allegation would be extremely

difficult, if not impossible, to bring to the attention of the

Courts. This result would impermissibly burden the right of

action Congress has provided to aggrieved citizens.

Accordingly, the Court holds Plaintiffs need not exhaust

administrative remedies before filing a citizen suit complaint

alleging agencies have engaged in a pattern and practice of

violations. Accordingly, the Court DENIES Miano’s and the

Arch Coal subsidiaries’ motions to dismiss on this ground.

D. Lack of Jurisdiction to Challenge Existing Permit

Applications

The Arch Coal subsidiaries argue the Court lacks jurisdiction

over those claims which seek injunctive relief with respect to

existing surface permit applications. Specifically, Plaintiffs seek

an order directing Miano “to withhold approval of permit

applications for surface coal mining and reclamation operations

that include proposed valley fills in waters of the United States

and the State unless and until” nine events occur. Complaint at

45-47 4 L. The subsidiaries argue Plaintiffs impermissibly seek

this relief with respect to any permits WVDEP considers ready

to issue because Plaintiffs have adequate administrative

remedies for objecting to particular permit decisions, which

they have not exhausted. Plaintiffs did not respond.

After careful consideration, the Court finds it could issue

42a

such relief at least as to future permit applications.?

Accordingly, the Court DENIES the Arch Coal subsidiaries’

motion to dismiss as it relates to future permit applications.

E. Plaintiff Bragg

The Arch Coal subsidiaries challenge Plaintiff Bragg’s

standing to sue because she alleges injuries by permits already

issued, but she seeks only declaratory and injunctive relief.

Plaintiffs argue standing need not be established for every

plaintiff so long as one properly has standing and Bragg has

alleged sufficient facts for standing. Our Court of Appeals has

recently restated the analysis for a challenge to a plaintiff's

standing:

The Constitution provides that “[t}he judicial Power” of the

federal courts of the United States extends only to specified

“Cases” and “Controversies.” U.S. Const. art. Ill, § 2, cl. 1;

see In re Pruett, 133 F.3d 275, 278 (4th Cir.1997). “The

doctrine of standing has always been an essential component

of [the] case or controversy requirement of federal

jurisdiction.” Marshall vy. Meadows, 105 F.3d 904, 906 (4th

Cir.1997). In order to have standing, a plaintiff must have

suffered an actual or threatened injury in fact; the injury must

have been caused by the defendant’s complained-of conduct;

and the injury must be redressable by the relief sought. See

Steel Co. v. Citizens for a Better Env t, --- US. ----, ----------,

118S.Ct. 1003, 1016-17, 140 L.Ed.2d 210( 1998). Moreover,

*The more difficult question is whether such injunction could apply to

pending permit applications, a question Plaintiffs have not addressed.

Because the Court’s inherent equitable powers allow it to issue an

injunction, at least as to future applications, the Court withholds decision at

this time as to pending applications.

43a

these elements must continue to exist at every stage of

review, not merely at the time of the filing of the complaint.

See Arizonans for Official English v. Arizona, 520 U.S. 43,

117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997); Suarez Corp.

Indus. v. McGraw, 125 F.3d 222, 228 (4th Cir.1997).... The

continued presence of these elements ensures that the

plaintiff has “such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which

sharpens the presentation of issues.” Baker v. Carr, 369 U.S.

186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

Friends of the Earth, Inc. v. Laidlaw Environmental Services,

Inc., 149 F.3d 303, 306 (4th Cir.1998).

Here, Bragg alleges she owns and lives in a home on

Nighway Branch in Mingo County, West Virginia. She uses

Nighway Branch, a perennial stream, for recreational and

domestic purposes. Bragg alleges the stream will be disturbed

by valleys fills associated with two permits that have already

been issued.

The subsidiaries argue the Complaint does not request any

relief with respect to either of these two permits nor claim she

will suffer harm by any other action of the Defendants.

Plaintiffs seek injunctive relief for a pattern and practice of

violations that, Plaintiffs contend, survives a standing challenge

based on redressability. In Steel Co., the Supreme Court

addressed the situation in which plaintiffs seek injunctive relief

for past harms, stating:

The latter objective [deterring defendant from future

violations] can of course be “remedial” for Article II]

purposes, when threatened injury is one of the gravamens of

the complaint. If respondent had alleged a continuing

violation or the imminence of a future violation, the

injunctive relief requested would remedy that alleged harm.

44a

But there is no such allegation here--and on the facts of the

case, there seems no basis for it. Nothing supports the

requested injunctive relief except respondent’s generalized

interest in deterrence, which is insufficient for purposes of

Article Ill. See Los Angeles v. Lyons, 461 U.S., at 111, 103

S.Ct., at 1670.

Steel Co., 523 U.S. at ---, 118 S.Ct. at 1019. Here, Plaintiffs

have stated a continuing violation that, under Steel Co., is

sufficient to satisfy the redressability requirement. Accordingly,

the Court DENIES the Arch Coal subsidiaries’ motion on this

ground.'®

F. Statute of Limitations

Alternatively, the Court notes substantial Supreme Court precedent that

a court need not address questions of standing regarding one plaintiff so

long as standing exists for other plaintiffs. See, e. g., Secretary of Interior v.

California, 464 U.S. 312, 318 n. 3 (1984); Watt v. Energy Action Educ.

Found., 454 U.S. 151, 160 (1981); Babbitt v. United Farm Workers Nat.

Union, 442 U.S. 289, 299 n. 11 (1979); Baldwin v. Fish & Game Comm'n.

of Montana, 436 U.S. 371, 377 n. 14 (1978); Scott v. U.S., 436 US. 128,

135n. 10(1978); Carey v. Population Services International, 431 U.S. 678,

682 (1977); Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252, 263-64 & n. 9 (1977); Planned Parenthood v. Danforth, 428 U.S. 52,

62-63 & n. 2 (1976); Doe v. Bolton, 410 U.S. 179, 189 (1973 ); Westchester

Women's Health Organization v. Whalen, 475 F.Supp. 734, 737

(S.D.N.Y.1979).

The subsidiaries do not challenge the standing of any other plaintiff, but

argue the costs and attorneys fees sought in this case require the Court to

address the standing of any challenged plaintiff. See Women’s Med. Center

v. Roberts, 512 F.Supp. 316, 319(D.R.1.1981). In the absence of controlling

precedent otherwise, the Court holds the prohibition against unnecessarily

reaching constitutional issues prevents the Court from addressing Bragg’s

standing.

45a

The Arch Coal subsidiaries argue Count 13 is barred by the

statute of limitations because in order to succeed, Plaintiffs

must challenge the EPA’s 1988 Policy, which is an

interpretative rule. Such challenges, they argue, must be

asserted within six years of the rule’s issuance. In turn,

Plaintiffs argue the Count does not depend upon a challenge to

the EPA policy. As an initial matter, the Court notes that Count

13 does not state a facial challenge to the EPA’s 1988 Policy.

Thus, even if Count 13 involves a substantive challenge to the

1988 Policy, the six-year term would not begin to accrue on the

regulation’s issuance, but when the regulation was applied to

the challenger. Florida Keys Citizen Coalition v. West, 996

F.Supp. 1254, 1256 (S.D.Fla.1998); Dunn-McCampbell Royalty

v. Nat’l Park Service, 112 F.3d 1283, 1287 (Sth Cir.1997). To

determine when the statute of limitations commenced to run,

the Court must resolve a factual issue, which is not ripe for

disposition at this time. Accordingly, the Court DENIES the

subsidiaries’ motion on this ground.

G. Arguments Regarding Counts 1, 3, 4 and 12

The Arch Coal subsidiaries raise various arguments that

Counts 1, 3, 4 and 12 cannot be maintained under the state of

the law. After careful consideration, the Court DENIES the

Arch Coal subsidiaries’ motion on these grounds.

Ill. CONCLUSION

Accordingly, the Court GRANTS the Associations’ motion

to adopt all favorable motions; GRANTS Arch Coal

subsidiaries’ motion to exceed page limit; GRANTS Plaintiffs’

motion to exceed page limit; DENIES Plaintiffs’ motion for

leave to file surreply; DENIES the Arch Coal subsidiaries’

motion to dismiss Counts 1, 3, 4, 12 and 13; DENIES the

46a

subsidiaries’ motion to dismiss the claims of Patricia Bragg and

injunctive relief claims which target individual permits or

permit applications; and DENIES Defendant Miano’s motion

to dismiss.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to all counsel of record.

ENTER: October 8, 1998

/s/

Charles H. Haden II, Chief Judge

47a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

Patricia BRAGG, et ai.,

Plaintiffs,

V. Civil Action No. 2:98-0636

[Entered Oct. 20, 1999]

Colonel Dana ROBERTSON,

et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are cross-motions for summary judgment on Counts

2 and 3 of the Second Amended Complaint.’ For reasons

discussed more fully below, the Court GRANTS Plaintiffs’

motion and DENIES Defendants’ motion.

I. PROCEDURAL AND FACTUAL BACKGROUND

These motions address a relatively small, but critical portion

of an extended civil action concerning the form of surface coal

mining commonly known as "mountaintop removal" mining.

Following extensive hearings on a proposed surface mining

permit for the Hobet Spruce Fork mine, which the Court

‘A joint motion for summary judgment was filed by Defendant Director

of the West Virginia Department of Environmental Protection ("DEP"), and

Defendant-Intervenors the Arch subsidiaries, the coal associations, the land

companies, and the United Mine Workers of America.

48a

considered as an instance of the Plaintiffs’ pattern and practice

claims, the Court enjoined the federal Defendants? from issuing

any further permits for that mine, stayed permits issued by the

DEP Director, and enjoined the Arch subsidiaries from

preconstruction or mining activities for the Spruc

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