Opposition Brief — Bragg v. West Virginia Coal Ass'n

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No. 01-619

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Supreme Court of the Untled States

PATRICIA BRAGG, et al.,

Petitioners,

Wa

WEST VIRGINIA COAL ASSOCIATION, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION OF

WEST VIRGINIA DEPARTMENT OF

ENVIRONMENTAL PROTECTION

Benjamin L. Bailey

Counsel of Record

Brian A. Glasser

Jennifer S. Fahey

BAILEY & GLASSER, LLP

227 Capitol Street

Charleston, West Virginia 25301

(304) 345-6555

Counsel for Respondent

West Virginia Department of

Environmental Protection

THE LEX GROUP ¢ 1108 East Main Street ¢ Suite 1400 ¢ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 Fax: (804) 644-3660 ¢ www.thelexgroup.com

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ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Brief of the Secretary of the

West Virginia Department of Environmental Protection

In Opposition to the Petition for a Writ of Certiorari

QUESTION PRESENTED

The Question Presented by the Petitioners is

misleading and attempts to reinvent this case.

This case asks whether a federal district court

ordered a state official, administering state surface mining

laws and regulations, to conform his conduct to state law or

federal law. On a straight statutory interpretation of

SMCRA, the Court of Appeals found that the district court

ordered conformity to state law and that, under Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89 (1984), it

plainly lacked jurisdiction to do so.

Specifically, the Court of Appeals “return{ed] to the

statutory structure of SMCRA” and held that the federal

Surface Mining Control and Reclamation Act (“the Act” or

“SMCRA”) “does not provide for shared regulation of coal

mining.” SMCRA, the Court of Appeals held, provides “for

enforcement of either a federal program or a state program,

but not both.” Given this statutory structure, the Court of

Appeals found that “the district court’s injunction created

two layers of indignity, as it not only directed the Director!

to make findings 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...” :

So this case does not present the broad, vague |

question posed by the Petitioners. The precise question

raised by the Court of Appeals decision is simply whether

the district court, on the facts of this case, was enforcing

state law or federal law.

an ace nhl strates tea se an

1 This refers to the Director of the West Virginia

Division of Environmental Protection. Today, as a result of

an intervening state reorganization, the successor official

and respondent here is Michael Callaghan, Secretary, West

| Virginia Department of Environment Protection (WVDEP).

“Director” will be used in this brief in opposition.

ul

|

ON IREDTDIiEII I SS hates.S ass

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....:c:s:ssssssssssessnsnsensnserseneensensesnenenens i

TABLE OF CONTENTS cccccoccccsccsccsccvovsesoscccsoscoscvosscsssrseseesseeees iii

TABLE OF AUTHORITIES. .......cccccsssssvsssssssccsscssserseeeseesesersers Vv

STATEMENT OF THE CASE .........ccsccccsssssseseeesrreeesseesesseresesees 1

SUMMARY OF THE ARGUMENT .........:cssssecsreeeereseeeseseeeenees 7

REASONS FOR DENYING THE PETITION .......:ecccseeeesesees 8

I. THE DECISION BELOW RESTS ON

A STRAIGHT FORWARD

STATUTORY CONSTRUCTION ..........c00000++ 8

A. The Fourth Circuit Properly

Concluded That SMCRA

Creates Exclusive State

Regulation........secsssssesesssssssesenssneeseennen 8

B. Because This Case Involves

Only State Law, Ex Parte

Young Does Not Apply... 11

C. The Fourth Circuit's Opinion

Does Not Conflict With Other

Decisions Of This Court or

Other Federal Courts ........cccssssecsees 15

& The Fourth Circuit's

Opinion is Consistent

with This Court's

II os sincineumntenesns 16

2. The Fourth Circuit's

Opinion is Consistent

with Decisions of

Other Circuit Courts of ag

II. No Compelling Need for This Court

to Review The Work of the Court of

Appeals Exists Because It Has Not

Been Criticized by the Highest State

OM cssicthithastcsshleainsstlasltiiaistichecnnic. 25

TAA wnrinsesristiisctinbindidi ee ed Safe 30

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Alden v. Maine

Be ah icici stiencnntenttinincncreseonnnnemnmeveietin 15

American Lung Association v. Kean,

ee ee ee ay, COD vreciesrnenovecntsnininverenneaswintie 23

_Antco, Inc. v. Dodge Fuel Corp.,

550 S.E.2d 622 (W.Va. 2001) ...ccerecscscecsesereressoresere 25, 26

Arkansas v. Oklahoma,

Fe ek FE Ci orerscvesconscasininbesanineiiocsciesiinnces 17, 18, 19

Ashoff v. City of Ukiah,

130 F.3d 409 (9th Cir. 1997) ........sccssssssrerererseseeeees 21, 22

Bragg v. West Virginia Coal Assoc.,

248 F.3d 296 (4th Cir. 2001) ......sccccsceesesseeerseneneees passim

Canestraro v. Faerber,

374 S.E.2d 319 (W.Va. 1988) .....s.ssesecereeees 25, 26, 27, 28

Citizens National Bank v. Burdette, 7

en I Ie Bcccenetaiennscicrncntcusisitnsninnneomiovaevvoseees 26

Coeur d’ Alene Tribe,

a Ie Le icrviciecntiimirnsinvenvinsitoninienstenenens 15, 17

DK Excavating, Inc. v. Miano, '

549 S.E.2d 280 (W.Va. 2001).......cssesecesees 25, 26, 27, 28

EPA v. California

I I ea ssscsisseccoteccevevresnescersseereenes 19, 20

4 Ww. Ww

Se FO GP Ct ey BO aiicterecesencsesoeserevccvevseseccees 22

f Vv.

935 F.2d 165 (24 Cir, 1976) .......cccsesesees eoseansesecsnnnenen 23

Id Vv. ‘ i

Sak US, SU eC b aiidiniesiliietitieaineashdlabeinsensercstssecnserveee 16

Hancock v. Train,

GAG UD Bie Gee aaa ieee etettntesencsciectctevtnescceeiioce 20

Havdo v. ini

830 F.3d 494 (3 Cir, 1987)......cccccssesesseseeseeeseeeees 24, 25

Kennecott Copper v. Costle,

D7 de Fath LORE (GEE, BOE exsccerecteveeteressentcrcevcceeestees 12

Koblegard v. Hale,

GE) WY. Vi. SF Sami ceiatelladedihdathclaciteta teeta csiataiatssesien 25

Little Rock Sch. Dist. v. Mauney,

183 F.3d. 816 (8t Cir. 1999).......... CE EO ER 16

Molinary v. Powell }

125 F.3d 231 (6® Cir. 1997) ..cccecscsocescesereseecevesecsers 24, 25

Monongahela Power v. Reilly,

SOO F.2d 272 COP Cae, TOD vcccecvssnssecteentanvnscntessissooress 12

NRDC v. California

96 FSG COE Cay We eeiccrmeintindeieinabibieniatanserncincccen 20

Pennhurst State 1 & Hospital v.

SOS UG, BP GRID cssssscditnsechoninctastntaneientcveiocinnens passim

P vani ati f

f Vv. Sei 5

No. 01-1683 (3° Cir. 2001) sscssssscccssssscesssnseeersssesee 24

In re Permanent Surface Mining

Regulations Litigation,

653 F.2d 514 (D.C. Cir. 1981) ...ccsssssssssscssssssseseses 11,18

Seminole Tribe v. Florida,

I sncssiccenieibeincedesnoesereysensnecmnet 15, 21

State v. Franklin,

139 W.Va. 43 (1953)....sssssssseseseseseesesersesenssssesnseseseseees 25

Unit tates Depa nt of Energy v. Ohio

503 U.S. 607 (1992)....ccsssssssssesersesesssssscsssrerssssssesensessees 16

W.Va. Highlands Conservancy v. Norton,

147 F. Supp. 2d 474 (S.D.W.Va. 2001).....seeseresseneenens 29

Ex Parte Young,

209 U.S. 123 (1908)......sssscerersesssesssessseerersesesessenees passim

Constitutional Provisions:

Const. amend. XI.......ssssccsssessseseseeeesesesenensenensesesssecseecenssees passim

ENE 1 FeO ety

Federal Statutes:

20 U.S.C. § 1400 et Sq .....secesserseseeserenesnensnssrsnssneneenensenenensenenes 16

20 U.S.C. § 1403(a).....secsssscressesssesssnssnsneenesnenssnsessesensacensenenenneens 16

20 U.S.C. §.1415 .....ccccscessssesscessssssseneseesesensesensncsseenssssssereeeeerees 16

PI I asrnenernnmncenieinenaceusaenteentor 16

So es 0 TR eee 8

SPER, 8 vies 2, 5,9

scale coin Ee ENO TO 1

Seta I cccisianesctindeniidii ti 6, 8,9

Apres OF GU OD ncincibeniinittiincideas Abe gi a Fs 9

Oe BVOC i ciimcehiniieiidliin ci 1

la die | | ROO EAN 2 Ne RT ae 9

a retain OO OI ii i i 9

ach, NOMI SESE! SON 9

nh RD aliniiiiitincetadaite eet 9

Se hoe I i vensseshciteiaitesieasnishitoveitictesi 2 ati i sna 9

30 U.S.C. § 1253(a) .........ses00-., punchebsantslecasinoowemmnavsssimbintn 2, 5, 6,9

aA Ne aL usieibcebibiiee 2, 6, 10

ee raiaen ee escheniibietittipeoinniieieth centages 10

OF ails NN diblhctitechibiditiinictere eit tt 10

atic cng OE TEES TO RTI 10

on at MUI cibiiiiinianinnsiiaiinatar stat ee cro: 10

Oe ae MI lad hiinicnstacianiiane i i Ss passim

SF se i iicintnieniicaaaeeie a ee ck. 10

Neste geese peep OE ES RE CORT 8

ele ca i | ROAR AES anne eae 21, 24

30 U.S.C. § 1270(a)(2) dienaebloveb ieshoeaseteetanbiivenepssamivieviieinenane passim

klip cs, LS OA NEEL 24

eae ies kt |, _; RTE ae ONE OS RAL 2, 6, 29

deetia set cc ag. gh RATE LN NE LTR AMAT 19

tees SOS SMO ae 10

cele 5 RACGREARES EIS ese ee One ae 19

onc een ica, CL TSAR aT 18

cles oe SE SE See 18

a 18

£2 U.S.C. § 6972(0)(1)(A) cvccececooccrscsrseserererseessevessoosesecieeseesss.... 21

sate Gone Fg eT ET A OE ARSE 23

este cut ca. og, ne RO SE LS A 23

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vette mg ct Cp EEE ASST AEM 22

State Statutes:

Fe Vs GG Eas OE, I sarecesinetcnsininisitiniciaentinnticnistainicenn 3

Pac is ED Oy aa icecionsiecvossrsinianeletntlicsieinnnitcaincesnteanncinii M

a RS Te ccierssisesiniincegenaaeaabsinitiianaiinhilinnninsaesinii 6

Ws Waly OG NEED GP IEF Uivccndcnesnsoscinmsssiiesisbiensiicrinindiemnsillentions 13

Pe Os Ie GEE sicctisicspninsitinicncbicaediaiesntianibeiniibiitiadeinin 16, 17

Federal Regulations: |

Se isd ln OF HET ceil cicinseschireipnnanteesstbitiniiashiasincieaininiteatinaaeiaciiiiile 10

Fe Gl tse FI see incincinncercicennsineniabiciiaseaeininepiaiidadinnianan 10

Pr Es Fe ienterenisecinabinnecinniinieniblaieiceaiidiinilansieniiicaasams 2

SO iret cathe Op MIET <ibinssind pecececisvenisivcin\evhenctsiateiiniesiiialialataiibiaainies 12

8 Fe: Be sevssnesinesntsninnisemvnniinintinvinnainmuiaimamniiianaeii 27

FF ce ay FE aisiesin aretniacinailiseipiepsaiiensnitibiianapiicaeaiea 2

Fe le FN esis tachclinvinensenni-ccsmeapldeiinelcheaapeliiiiaipieinit 2,5

aie OF SI ccisierieaiisiniinhaiaacieilahastiainanilaaniaiiiahiiiedinndie 2

State Regulations:

SO WY, Ve. Cee, Tl. 6 S1, hi iceecccertesqerctitncnennnerceons 3

Se FE Ae, Ge OE, Fe BD secnettesssccntinincicittntitannncideniciin A

Sp PER, CR Bhs OO cnereniciicesinsensinnninnnennninnne +

36 W.Va. Code St. R. § 2-332. ..ce.cvcecesscsersesscescsusseseseeecesseces 13

SO W.Va, Cn OR, BR BBG iiectcissniniekssccctcectnscsensssininctcsenn +

Fe Pas OU SN es Bhs i eiccnisentcincsnictnrsinnniceseaisiecins 3,6

Pe WE VS, Coin OR, BR GBD sac cssccssssessiiiesinsinniunsiesinesonsssones 27

38 W.Va. Code St. R. § 2-14.14..€......-cccsccccssssssossssecsssseseecsessceses 3

Se FH A NN OE Os SN aes csscicinsissicecssivsermmsinonsisainies 13

~ Other:

The Federalist No. 81 (A. Hamilton) .........:.ccssssssssssssesssesseee 15

xi

Brief of the Secretary of the

West Virginia Department of

Environmental Protection in

Opposition to a Writ of Certiorari

Respondent Michael C. Callaghan, Secretary, West

Virginia Department of Environmental Protection (WVDEP)

respectfully opposes issuance of a Writ of Certiorari to

review the judgment of the United States Court of Appeals

for the Fourth Circuit in this case.

Nothing about this case is worthy of certiorari.

First, the decision below rests on a simple statutory

construction of SMCRA. The construction is not in conflict

with any prior opinion of this Court. Second, there is no

compelling need for this Court to review the work of the

Court of Appeals because it does not conflict with decisions

of important federal questions by another federal Court of

Appeals or highest state court.

Thus, denying certiorari will leave a sensible

construction of SMCRA in place, and will give the other

federal Courts of Appeal a chance to comment on, accept, or

reject the interpretation of SMCRA set forth by the Court of

Appeals for the Fourth Circuit in this case.

STATEMENT OF THE CASE |

Congress enacted the Surface Mining Control and

Reclamation Act (“SMCRA”) in 1977 to establish minimum

nationwide environmental standards to govern coal mining

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

through the United States Department of the Interior by the

Office of Surface Mining Reclamation and Enforcement

(OSM). 30 U.S.C. § 1211. Congress, however, recognized

that “because of the diversity in terrain, climate, biologic,

chemical, and other physical conditions in areas subject to

mining operations, primary governmental responsibility for

developing, authorizing, issuing, and enforcing regulations

y |

for surface mining and reclamation operations ... should

rest with the states.” 30 U.S.C. § 1201(f).

To achieve that end, Congress instructed any state

wishing “to assume exclusive jurisdiction over the

regulation of surface coal mining and _ reclamation

operations” on non-federal lands within its borders to

submit a proposed State program to OSM for approval. 30

U.S.C. § 1253(a). Once a state program is approved, state,

not federal, law governs surface mining operations within

the state’s borders. Compare 30 U.S.C. § 1253(a) (“State

programs”) with 30 U.S.C. § 1254(a) (“Federal programs”).

On January 21, 1981, OSM approved the West

Virginia Surface Coal Mining and Reclamation Act

(“WVSCMRA”), 30 C.F.R. § 948.10, giving West Virginia

exclusive jurisdiction to regulate surface coal mining within

its borders. |The Question Presented, as framed by the

Petitioners, incorrectly asserts that the state regulation at

issue “is codified in the Code of Federal Regulations.”

Opening the Code of Federal Regulations, one searches in

vain for such “codification.” The Code of Federal

Regulations merely lists the West Virginia statutes and

regulations approved by the federal Office of Surface

Mining as consistent with the minimum federal standards

required by SMCRA. 30 C.F.R. §§ 948.1 - 948.30. The Code

of Federal Regulations nowhere provides the complete text

of these West Virginia statutes and regulations. Rather, it

advises readers that copies of West Virginia’s program may

be obtained at the West Virginia Division of Environmental

Protection (WVDEP) office in Nitro, West Virginia, or the

OSM Field Office in Charleston, West Virginia. 30 C.F.R. §

948.10. By comparison, the federal Surface Mining

regulations are “codified” in their full text at 30 C.F.R. pt.

772-85.

The State program is administered by WVDEP.

OSM only retains a role of limited oversight of the state

program. See 30 U.S.C. §§ 1267, 1271. Thus, since 1981,

persons wishing to mine coal in West Virginia have been

required to obtain a WVSCMRA permit from the WVDEP.

WVSCMRA is found at W.Va. Code § 22-3-1, et. seq,; the

State regulations are codified at 38 W.Va. Code St. R. § 2.1,

et seq.

Surface mining requires removal of massive amounts

of rock and dirt - overburden or “spoil” - to expose the coal.

So does the initial site preparation or face-up of surface

mines. The overburden, once removed, “swells” and

displaces a greater volume than it occupied prior to

mining.” WVSCMRA requires this overburden to be used

to restore the approximate original contour of the

mountains. See W.Va. Code § 22-3-3(e). Because of the

increase in volume, the amount of spoil is greater than

needed to restore approximate original contour and the

excess spoil is placed in a nearby valley - a “valley fill.” In

the rugged, hilly terrain of West Virginia, valleys generally

contain streams. Valley fills themselves are regulated,

engineered structures. They are designed to be safer and

more stable than their pre-SMCRA predecessors. See, e.g.,

38 W.Va. Code St. R. § 2-14.14.e. These engineering

requirements account for the “massive, artificially

landscaped stair steps” which the district court and

Petitioners so dramatically recount. (Petition at 8.)

Valley fills and the portions of the streams that they

cover are the physical focus of the Petitioners’ underlying

case. Specifically, in Counts Il and III of their Second

Amended Complaint?, Joint Appendix (“JA”) 1794-1797,

Petitioners challenged the application of a single West

Virginia regulation, the “buffer zone” rule. 38 W.Va. Code

St. R. § 2-5.2. Standing alone, the buffer zone rule prohibits

disturbances within 100 feet of intermittent or perennial

streams, but permits variances in some circumstances. Id.

Historically, WVDEP has not applied the buffer zone rule to

the portion of a stream beneath a valley fill because the

2 Counts II and III are the only Counts still in dispute.

All other Counts in the Complaint have been settled.

3

preceding, related section of the state regulations permits

fills - overburden - to be placed in streams:

Natural drainways in the permit area shall be

kept free of overburden except where

overburden placement has been approved.

Overburden placement and haulageways

constructed across natural drainways shall

not materially increase the sediment load, or

materially affect stream quality.

38 W.Va. Code St. R. § 2-5.1 (emphasis added). This

regulation is unique to West Virginia. The Petition fails to

mention or cite this critical regulation.

Under the West Virginia surface mining regulations,

“intermittent stream” is defined as “[a] stream or reach of a

stream that drains a watershed of at least one square mile,

or [a] stream or reach of a stream that is below the local -

water table for at least some part of the year, and obtains its

flow from both surface runoff and ground water discharge.”

38 W.Va. Code St. R. § 2-2.69. “Perennial stream” means “a

stream or portion of a stream that flows continuously.” 38

W.Va. Code St. R. § 2-2.86. None of these definitions turn on

volume or size. A perennial stream can be a seep the width

of a pencil.

Petitioners sued the Director of WVDEP, claiming

that WVDEP was misapplying West Virginia’s buffer zone

rule by approving valley fills which included the placement

of overburden in valleys with intermittent or perennial

streams. WVDEP moved to dismiss, arguing that state

officials applying WVSCMRA and its regulations should be,

and could only be, sued in state court.

The district court acknowledged the argument, but

disagreed: WVDEP “correctly recognizes the specific duties

that the [Petitioners] allege are being violated appear in the

WVSCMRA and state regulations. The language and

structure of SMCRA demonstrate, however, that these

duties under an approved state program, such as West

Virginia’s, are incorporated into federal law.” (App. at 35a.)

Having construed SMCRA and the Complaint to sustain

jurisdiction, the district court ultimately disagreed with

WVDEP’s construction of the buffer zone rule, found that

the regulation required the Director to make seven specific

findings, and issued a permanent injunction. (App. at 82a-

87a.)

It was this statutory interpretation of SMCRA that

the Court of Appeals rejected. Specifically, the Court of

Appeals explained:

Congress designed a scheme of mutually

exclusive regulation by either the US.

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.” Id. §

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).

(App. at 18a.) |

The Court of Appeals then outlined how the ongoing

federal interest in enforcing minimum standards across the

nation is protected and vindicated 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.” Until that withdrawal

occurs, however, “the minimum national standards are

attained by State enforcement of its-own law.” (App. at

19a.)

Consequently, the Court of Appeals found that “the

district court's injunction created two layers of indignity, as

it not only directed the Director to make findings required

by the West Virginia Act, see W.Va. Code sec. 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 sec. 2-5.2.” (App. at 22a) (applying

Pennhurst, 465 U.S. 89 (1984)).

The Court of Appeals concluded that Petitioners’

“claims filed against the State Director in federal court are

not authorized by the Ex Parte Young exception to the

Eleventh Amendment.” (App. at 25a) (citing 209 U.S. 123

(1908)). The district court’s injunction was therefore vacated

and the case was ordered remanded for dismissal without

prejudice, giving Petitioners the right to present their claims

in West Virginia state court. (App. at 3a.)

SUMMARY OF THE ARGUMENT

The Court of Appeals properly concluded, based on

a thorough and consistent construction of SMCRA, that

West Virginia obtained exclusive jurisdiction over coal

mining activities within its borders when it enacted, and

OSM approved, the State’s surface mining program.

Exclusive jurisdiction means that SMCRA no longer directly

governs coal mining in West Virginia; WVSCMRA does.

The district court therefore lacked jurisdiction over the

alleged violations of State regulations in this case, under

Pénnhurst State School & Hospital v. Halderman, 465 U.S.

89 (1984).

Reaching this conclusion, the Court of Appeals also

properly declined to adopt Petitioner’s arguments, based

principally on cases construing other environmental

regulatory statutes involving cooperation between the States

and the federal government, that State mining laws are

somehow incorporated or codified into federal law.

SMCRA alone provides for “exclusive” State regulation, and

the other authority relied upon by Petitioners involves

different citizen suit provisions and different factual

situations which do not raise the Eleventh Amendment

concerns presented in this case.

Finally, the Court of Appeals’ decision is amply

supported, and justified, by the decisions of West Virginia's

highest court. It has recognized and faithfully maintained

SMCRA’s minimum national standards in construing the

State’s federally-approved mining laws. Cooperative

federalism and the Eleventh Amendment remain alive and

well together in West Virginia.

Because the statutory construction of SMCRA is

simple, uncontradicted, and not inconsistent with cases

construing other statutes, this case presents no issues or

conflicts which warrant a writ of certiorari.

REASONS FOR DENYING THE PETITION

I. THE DECISION BELOW RESTS ON A

STRAIGHT FORWARD STATUTORY

CONSTRUCTION.

A. The Fourth Circuit Properly Concluded

That SMCRA Creates Exclusive State

Regulation.

While Petitioner nominally alleged violations of

federal SMCRA to invoke federal court jurisdiction, the

claims presented by Counts II and III of their Complaint

sought relief for specific violations of West Virginia’s

surface mining regulations. The sole issue was WVDEP’s

alleged disregard of the State’s buffer zone regulation, and

whether that disregard violated state or federal law.

Petitioners invoked SMCRA’s citizen suit provision.

On its face, that statute is limited to enforcement of SMCRA.

The section on which appellees rely for federal jurisdiction

is entitled, “Civil action to compel compliance with 30

U.S.C. §§ 1201 et seq.” 30 U.S.C. § 1270. The specific

subsection on which Petitioners rely provides for civil

actions to compel compliance with “this Act ... where there

is alleged a failure of the Secretary or the appropriate State

regulatory authority to perform any act or duty under this

Act ....” 30 U.S.C. § 1270(a)(2). “This Act” means federal

SMCRA, not WVSCMRA.

The Fourth Circuit’s opinion, that State law governs

this dispute, flows from its construction of SMCRA’s plain

language. From inception, SMCRA contemplated state-by-

state regulation, not one universal federal formula. See 30

U.S.C. § 1202(g). Coal mining is a site-specific activity. The

first section of SMCRA contains Congress’ finding that

“because of the diversity in terrain, climate, biologic,

chemical, and other physical conditions ... the primary

governmental responsibility ... for surface mining and

reclamation operations subject to this chapter should rest

with the States.” 30 U.S.C. § 1201(f). The stated purposes of

SMCRA are, among others, to “assist the States in

developing and implementing a program to achieve the

purposes of this chapter,” 30 U.S.C. § 1202(g), and also to

“assure that appropriate procedures are provided for the

public participation in the development, revision, and

enforcement of regulations, standards, reclamation plans, or

programs established by the Secretary or any State under

this chapter,” 30 U.S.C. § 1202 (i).

The federal Office of Surface Mining Regulation and

Enforcement was created and its Director commanded to

review and approve “State programs for controlling surface

coal mining. operations.” 30 U.S.C. § 1211(c)(1). Further, the

Director must “assist the States in the development of State

programs ... which meet the requirements of this chapter,

and at the same time, reflect local requirements and local

environmental and agricultural conditions.” 30 U.S.C. §

1211(c)(9).

The intention for exclusive State or Federal

regulation is further developed in Subchapter V of SMCRA.

30 U.S.C. §§ 1251-79. The Secretary of the Interior is charged

with publishing and promulgating regulations for the

approval of State programs and with developing and

implementing separate Federal programs. 30 USC. §

1251(b). Interim processes, which governed the transition to

State programs or to a Federal program within States

without their own programs, are delineated at 30 U.S.C. §

1252.

Making the policy choice even more explicit,

SMCRA provides that each state “which wishes to assume

exclusive jurisdiction” over surface coal mining within its

borders must submit to the Secretary a “State program”

which includes a “State law” for regulating, sanctioning and

effectively implementing the requirements of SMCRA. 30

U.S.C. § 1253(a). The Secretary is directed to promulgate

and implement a “Federal program,” only for States that fail

to submit, receive, or maintain approval of a State program.

30 U.S.C. § 1254(a). Additionally, 30 U.S.C. § 1254(b)

authorizes the Secretary to federally enforce any part of a

State program that is not being enforced properly by the

state. Notably, in all the years since approval of West

Virginia’s program, the Secretary has never exercised

enforcement power under § 1254(b) because of any

improper application of West Virginia's buffer zone rule.

Congress also provided that “[a]ction 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,”

without limiting the rights of individuals to bring citizen

suits. 30 U.S.C. § 1276(e).

This same dichotomy of separate Federal or State

programs echoes in the remainder of SMCRA. See, e.g., 30

US.C. §§ 1256(a); 1257(a) (each. permit application

“pursuant to an approved State program or a Federal

program”); 30 U.S.C. § 1258(a) (each reclamation plan

“pursuant to any approved State program or a Federal

program”). Indeed, a conjunctive “or” separates “State”

from “Federal” programs in almost every instance. Even

without the “or,” SMCRA separates the State and Federal

programs. See, 30 US.C. § 1265(c) (stating, “Each State

program may and each Federal program shall include

procedures” by which a permit may be granted “for

purposes set forth in paragraph (3) of this Subsection.”).

The federal regulations similarly refer to discrete wun

programs. E.g., 30 C.F.R. §§ 730.5; 731.14.

The Fourth Circuit, relying on this bintinit

concluded that SMCRA itself operates as a “blueprint,”

establishing minimum national standards for State

programs. (App. at 9a, 24a.) States seeking exclusive

jurisdiction follow the blueprint, adjusting and adapting it

to fit their own terrains and environments. Once OSM

approved West Virginia’s program (with its unique natural

drainways and buffer zone), Congress intended for SMCRA

to “drop out,” and for state law to become “the sole

10

operative law,” as the Fourth Circuit found. (App. at 20a -

21a.)

Other courts have recognized this since SMCRA’s

initial judicial challenges. For example, in 1981, the Court of

Appeals for the District of Columbia Circuit held, “the state

regulatory authority decides who will mine in what areas,

how long they will conduct mining operations, and under

what conditions the operations will take place [and] it is

with an approved state law and with state regulations

consistent with the Secretary’s that surface mine operators

must comply.” In re Permanent Surface Mining Regulations

Litigation, 653 F.2d 514 at 519 (D.C. Cir. 1981). That court

contrasted the independence of a state administering an

approved state program under SMCRA with the continuing

role of the EPA after a state has assumed responsibility for

pollution discharge permits under the Clean Water Act. Id.

at 519 n.7. The Circuit Court’s conclusion in this case

follows the District of Columbia Circuit's early analysis of

SMCRA’s state-based design. (App. at 19a.)

B. Because This Case Involves Only State Law,

Ex Parte Young Does Not Apply.

The Fourth Circuit recognized that SMCRA’s citizen

suit provision gives limited access to the federal courts. It

allows lawsuits in federal court against the appropriate State

regulatory authority only “to the extent permitted by the

eleventh amendment to the Constitution.” 30 U.S.C. §

11

1270(a)(2).3 To bring their claim in federal court, Petitioners

had to raise a violation of SMCRA, and their action must not

be prohibited by the Eleventh Amendment.

Yet Counts II and III of their Second Amended

Complaint specifically invoke the state’s buffer zone rule.

Count II makes a passing, secondary reference to the federal

buffer zone regulation, 30 C.F.R. § 816.57; no federal statute

is mentioned. JA at 1794-1796. Count III cites only the state

buffer zone rule. JA at 1796-1797. The federal statute relied

on in the Petition is 30 U.S.C. § 1260(b). It appears in

Petitioners’ Complaint only as a parallel citation in

Paragraph 56, which first acknowledges that the WVDEP

director's duties arise from the “State program”:

According to the approved State program,

Defendant Miano has a non-discretionary

duty to refrain from approving a permit

application unless the application

affirmatively demonstrates and Defendant

Miano finds, in writing, on the basis of

information set forth in the application or

from information otherwise available that is

documented in the approval, that the

3 SMCRA’s citizen suit provision is also limited to

alleged failures of the State official “to perform any act of

duty under this chapter which is not discretionary.” 30

U.S.C. § 1270(a)(2). West Virginia argued before the Circuit

Court that the WVDEP’s permitting decisions about where

and how to apply West Virginia’s buffer zone rule are

discretionary acts, citing Monongahela Power v. Reilly, 980

F.2d 272, 277 n.5 (4 Cir. 1992) and Kennecott Copper v.

Costle, 572 F.2d 1349 (9% Cir. 1978). The Fourth Circuit did

not reach this alternative reason for finding that the district

court exceeded its jurisdiction. This issue remains a

significant obstacle for Petitioners, even if certiorari is

granted.

12

application is complete and accurate and the

applicant has complied with all requirements

of the West Virginia Surface Coal Mining and

Reclamation Act and its implementing

regulations. 38 C.F.R. § 2-3.32.d; 30 U.S.C. §

1260(b).

JA at 1793-1794.

To establish federal jurisdiction, Petitioners attempt

to create an issue of federal law by arguing that the

Director's alleged duty to issue permits in compliance with

the law derives directly from 30 U.S.C. § 1260(b). Petition at

14-17. The argument has no merit. Because West Virginia's

State program has its own provision, requiring the Director

to follow the State program, the Fourth Circuit's

construction of SMCRA leads to the ineluctable conclusion,

in this case, that Petitioners’ remaining claims arise under

state, not federal law.

Counts II and III, as discussed above, arise wholly

out of the State’s buffer zone rule. The Director’s obvious

duty to apply the State program derives from the State’s

laws, following the federal “blueprint.” The State program's

statute parallel to 30 U.S.C. § 1260(b) 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). Indeed, in paragraph 56 of their Complaint,

Petitioners invoke the similar West Virginia regulation

before the reference to 30 U.S.C. § 1260(b). That regulation

prohibits permit approval unless the application

demonstrates and the Director finds, in writing, that: “The

application is complete and accurate and the applicant has

complied with all requirements of the Act and this rule.” 38

W.Va. Code St. R. § 3.32.d.1.

Distilled to its essence, Petitioners’ theory is that all

these state and federal statutes and _ regulations

simultaneously control the Director of WVDEP, giving

13

access to both State and federal courts for challenges to a

State regulator’s conduct. The Fourth Circuit rejected this

argument. The buffer zone rule is a State regulation, part of

a series of regulations specifically crafted to West Virginia’s

circumstances. State law requires the Director to refrain

from issuing permits unless the State program has been

complied with. For exclusive jurisdiction to have any

meaning, the State law alone must govern the Director's

permitting decisions. Petitioners’ theory that Counts II and

III allege violations of non-discretionary duties directly

under SMCRA is no more than an attempt to turn a duty

which arises solely out of a West Virginia regulation,

promulgated under a West Virginia statute, into a federal

statutory violation. This argument would render

meaningless SMCRA’s careful crafting of exclusive systems

of Federal and State regulation. If every alleged failure of a

State official to deny a permit for failure to follow a State

regulation also amounts to a violation of 30 U.S.C. § 1260(b),

then all such claims would give rise to federal jurisdiction, a

conclusion wholly inconsistent with SMCRA’s intent and its

limited federal court jurisdiction. See 30 U.S.C. § 1270(a)(2).

Assessing the Petitioners’ claims and SMCRA’s grant

of exclusive state jurisdiction in light of the Eleventh

Amendment, the Fourth Circuit carefully considered the

“intrusion on State sovereignty” presented in this case.

(App. at 22a) (citing Pennhurst, 465 U.S. at 106). Viewed in

that light, the district court’s injunction commanded the

State official to follow “the State’s own law, not federal law,

because only the State law is operative and directly

regulates the issuance of permits.” (App. at 22a.) Because

the buffer zone rule is a State regulation, and because the

Director's duties to issue permits in accordance with the law

arise under a State statute which follows SMCRA’s

“blueprint,” the Fourth Circuit concluded that Pennhurst

plainly applies. Ex parte Young’s concern for harmonizing

Eleventh Amendment rights with the need to uphold the

“supreme authority of the United States” simply does not

14

apply to this case, because the “supreme authority” is not at

risk in an action arising out of State laws and regulations.

209 U.S. at 159. The fact that the State’s program mirrors

SMCRA does not, and cannot, mean that federal law

applies.

Moreover, the Fourth Circuit found that refusing to

assert jurisdiction over the Director was consistent with this

Court’s recent Eleventh Amendment jurisprudence and

comported with general concerns of state sovereignty and

federalism. See, Bragg, 248 F.3d at 296-97 (citing Alden v.

Maine, 527 U.S. 706 (1999), Coeur d'Alene Tribe, 521 US.

561 (1997), Seminole Tribe v. Florida, 517 U.S. 44 (1996)).

Expressing those views itself, this court recently held, “each

State is a sovereign entity in our federal system[,] and ... ‘it

is inherent in the nature of sovereignty not to be amenable

to the’suit of an individual without its consent.” Seminole

Tribe, 521 U.S. at 54 (quoting The Federalist No. 81 (A.

Hamilton)). The following analysis more fully sets forth

these principles, and their application to the instant case.

Cc. The Fourth Circuit’s Opinion Does Not

Conflict With Other Decisions Of This

Court or Other Federal Courts.

In addition to their argument that 30 U.S.C. § 1260(b)

directly governs the Director's actions, Petitioners argue that

West Virginia’s mining laws are somehow incorporated into

SMCRA, creating federal jurisdiction under 30 USC. §

1270(a)(2). Because nothing in SMCRA specifically

incorporates, adopts, or converts state law into federal law,

Petitioners rely largely on federal cases discussing other

federal environmental statutes creating = joint

15

federal/state programs.‘ But those regulatory programs are

all different from SMCRA, and the cases pose no conflicts

with the Fourth Circuit’s construction of SMCRA.

1. The Fourth Circuit’s Opinion is 3

Consistent with This Court's

Decisions.

The Circuit Court’s opinion is faithful to the

Eleventh Amendment cases cited above. In addition, the

Fourth Circuit's refusal to convert state law into federal law

is consistent with United States Department of Energy v.

Qhio, which Petitioners do not cite. 503 U.S. 607 (1992).

Ohio argued that its state-law fines “arise under Federal

law,” given the “complementary relationship” between

federal and state water laws. Id. at 625-26. This Court

rejected that argument, noting concerns about statutory

drafting and the tensions arising out of the United States’

sovereign immunity which required the use of a “narrow

construction” in that case. Id. at 627. The Fourth Circuit's

ruling in this case notes similar concerns and reconciles the

same tensions.

Petitioners’ argument to the contrary, no conflict

exists between the Fourth Circuit's opinion and this Court's

decision in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S.

261 (1997). WVSCMRA gives affected individuals the right

‘ Petitioners also cite cases decided under the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400

et seq., but in light of that Act’s language, those cases seem

inapplicable. The IDEA does not offer “exclusive

jurisdiction” to the states, as does SMCRA. To the contrary,

the Act requires states to provide a host of administrative

remedies, and if those remedies fail, to submit to federal

district court jurisdiction. 20 U.S.C. § 1415(a)-(i). Moreover,

the Act expressly abrogates sovereign immunity for

participating states. 20 U.S.C. § 1403(a); Little Rock Sch.

Dist. v. Mauney, 183 F.3d. 816, 832 (8 Cir. 1999).

16

to sue the Secretary of WVDEP, in state courts, to enforce

those state rights. W.Va. Code § 22-3-25. The Fourth Circuit

observed that because “West Virginia courts are open to

such suits, the federal interest in maintaining the State’ sasdf

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.” (App. at 24a) (citing Coeur d’ Alene Tribe).

Petitioners imply that the Fourth Circuit based its

decision, in part, on a minority view from Coeur d’Alene

Tribe. But the Fourth Circuit's opinion is different. It

discusses the availability of a state forum to enforce state

laws. A minority in Coeur d’Alene Tribe discusses the

availability of a state forum to enforce federal rights as one

factor in determining the extent of the Ex parte Young

doctrine. 521 U.S. at 274 (Kennedy, J. concurring). The

Fourth Circuit’s discussion of the availability of a state

forum occurs in the context of its thoughtful assessment of

the extent to which the state’s “dignity interest” is

implicated in the Eleventh Amendment analysis. (App. at

23a - 25a.)

While Petitioners argue that the Fourth Circuit

followed the minority in Coeur d'Alene Tribe, the Circuit

Court’s SMCRA-based analysis is, in fact, consistent with

the Coeur d’ Alene Tribe majority's view that “immunity is

designed to protect” the “dignity and respect afforded a

State” 521 U‘S. at 268. Further, the Fourth Circuit's analysis

follows this Court’s admonition that an “[a]pplication of the

Young exception must reflect a proper understanding of its

role in our federal system and respect for state courts

instead of a reflexive reliance on an obvious fiction.” Id. at

270. As discussed in Section II, below, the Fourth Circuit's

respect for the role of West Virginia’s judicial system in

enforcing WVSCMRA is _ well-justified, for specific

substantive reasons as well as for the structural and

institutional reasons inherent in all Eleventh Amendment

inquiries.

17

Nor does the Fourth Circuit’s opinion conflict with

decisions of this Court interpreting other federal

environmental statutes or regulatory schemes that require

cooperation between State and federal authorities. SMCRA

is unique in its deference to the states, as the Fourth Circuit

found. (App. 17a - 18.) Petitioners rely heavily on Arkansas

v. Oklahoma, which arose under the Clean Water Act

(CWA). 503 U.S. 91 (1992). But the federal role in CWA

programs and permits is integral to the process, unlike the

limited oversight role OSM plays in State surface mining

programs. See In re Permanent Surface Mining Regulations

Litig., 653 F.2d at 519.

For example, permits issued under the CWA are

required, by law, to be transmitted to EPA, and EPA’s

Administrator has the authority to object and stop the

issuance of a permit, unless the Administrator has waived

objections.> See 33 U.S.C. § 1342(d). No such interlocking,

permit-by-permit authority exists under SMCRA. So the

Fourth Circuit's comparison of the mutually exclusive State

or Federal regulation created by SMCRA to the more federal

character of the CWA is supported by the plain language of

both statutes.

Moreover, Arkansas v. Oklahoma did not hold that

the state water laws, applied interstate, are automatically

incorporated into federal law, as Petitioners contend.

Arkansas_v. Oklahoma held that CWA regulations

“effectively incorporate” state law, and acknowledges the

“federal character” of state pollution standards under the

CWA. 503 U.S. at 110. But Arkansas v. Oklahoma involved

a federal permit for a Fayetteville, Arkansas water treatment

5 Although the Administrator may waive the notice

requirements under 33 U.S.C. § 1342(d), another subsection,

33 U.S.C. § 1342(b)(5) still requires notification of the EPA

when the discharging state fails to adopt a recommendation

from a neighbor state that will be affected by the discharge.

See, 33 U.S.C. § 1342(e).

18

plant that discharged into a stream flowing into Oklahoma.

The question in Arkansas v. Oklahoma was which State's

regulations - Arkansas’ or Oklahoma’s - EPA had the

authority to apply. 503 U.S. at 104-05. The interstate flow of

water in Arkansas v. Oklahoma federalized the issue, giving

EPA the discretionary authority - but not necessarily the

obligation - to apply a downstream state’s water quality

standards in its federal permit. This holding stands in stark

contrast to the localized nature of surface coal mining and

the state, not federal, permit in this case.

Petitioners also cite EPA v. California for the

proposition that discharge permits issued pursuant to State

permit programs under the CWA are federally enforceable,

without noting the critical fact that permits for federal

facilities were the underlying issue in that case. (Petition at

26) (citing 426 U.S. 200, 224-25 (1976)). The question in that

case was not whether state water regulations became federal

law, but rather was “whether federal installations

discharging water pollutants in a state with a federally

approved permit program are to secure their permits from

the state, or from the [EPA].” 426 U.S. at 201-02. Under the

CWA, Federal installations are required to “comply with

Federal, State, intrastate, and _ local [pollution]

requirements.” 33 U.S.C. § 1323(a). This Court held that

federal facilities need federal permits, and are not required

to obtain state NPDES permits under the Federal Water

Poilution Control Act Amendment of 1972.6 EPA _v.

. Interesting!y, SMCRA reaches a parallel substantive

conclusion, creating a Federal program for surface mining

on federal lands, directing OSM to include at a minimum

the requirements of the approved State program, and

allowing cooperative agreements for State regulation if the

Secretary of the Interior so desires. 30 U.S.C. § 1273. This

section of SMCRA further underscores the mutually

exclusive nature of SMCRA’s regulatory construct, even on

federal lands.

19

California, 426 U.S. at 211, 227 (applying Hancock v. Train,

426 US. 167 (1976) (issued on the same day as EPA v.

California)). Because the CWA specifically applies state

standards to federal facilities, the holding in EPA v.

California does not support Petitioners’ argument that state

mining regulations are somehow generally incorporated

into SMCRA and applied to non-federal lands.

2. The Fourth Circuit’s Opinion is

Consistent with Decisions of Other

Circuit Courts of Appeals.

Similarly, the Petitioners’ recitation of Circuit Courts

of Appeals cases applying the CWA, the Resource

Conservation and Recovery Act (RCRA) and the Clean Air

Act (CAA) are inapposite. (Petition at 26-28.) None of these

statutes offer “exclusive jurisdiction” to the states, as does

SMCRA, and none of them arose under citizens’ suits

provisions drawn as narrowly as 30 U.S.C. § 1270(a)(2). Nor

do any of them address the same Eleventh Amendment

issue resolved by the Fourth Circuit in this case.

° CWA Cases

Plaintiffs invoke one other CWA case, NRDC v.

California Department _of Transportation, but that case

alleged that a State agency violated its permit. 96 F.3d 420

(9% Cir. 1996). The permit “required [the California

Department of Transportation] to control polluted

stormwater runoff from roadways and maintenance yards

in Southern California.” Id. at 421. The Ninth Circuit held

that the CWA and this Court's prior holdings specifically

abrogated Eleventh Amendment protection for suits against

state agencies as permit holders. Id. at 422 (citing Pennhurst

and Ex Parte Young). NRDC v. California differs from the

instant case, because the Director of WVDEP has been sued

as a regulator not as a permit holder. See, Pennhurst 465

U.S. at 106 (holding “it is difficult to think of a greater

20

intrusion on State sovereignty than when a federal court

instructs State officials on how to conform their conduct to

State Law.”) (The Fourth Circuit also cited this holding, 248

F.3d at 296.) Nor does the SMCRA citizen suit provision at

issue, 30 U.S.C. § 1270(a)(2), contain the same language

which the Ninth Circuit found sufficient to create

jurisdiction over California as a permit holder. Id. at 424

(citing Seminole Tribe of Florida _v. Florida, 517 US. 44

(1996)).’

° RCRA Cases

Petitioners also distort the import of the principal

RCRA case they cite. The question in Ashoff v. City of

Ukiah, 130 F.3d 409 (9% Cir. 1997), was whether RCRA

“authorizes citizen suits in- federal courts claiming only

violations of state standards that exceed the federal criteria.”

130 F.3d at 410. The Ninth Circuit found that RCRA did not

authorize citizen suits based on state standards that exceed

the federal criteria. Id. at 412. The Ninth Circuit's analysis

turned on the language of RCRA’s citizen suit provision.

This provision is broad, and it permits any person to sue

any other person (including government agencies to the

extent permitted by the Eleventh Amendment) “who is

alleged to be in violation of any permit, standard,

regulation, condition, requirement, prohibition or order

which has become effective pursuant to this chapter.” Id.

(citing 42 U.S.C. § 6972(a)(1)(A)).

This “pursuant to” language is broader than

SMCRA’s separate citizen suit provision for regulatory

authorities, which is limited to alleged failures “to perform

any act or duty under this chapter which is not

discretionary.” 30 US.C. § 1270(a)(2). Thus, while the

federal district courts listed in the Petition’s footnote 9 have

differed over whether state programs have “become

It is, however, similar to 30 U.S.C. § 1270(a)(1).

21

effective pursuant to” RCRA, that argument is not available

to Petitioners in this case.

Even if WVSCMRA could somehow be conceived as

enacted “pursuant to” SMCRA, it is not SMCRA itself.

Nothing in SMCRA explicitly adopts, incorporates, or

transmogrifies state regulations into federal law. Moreover,

the Ashoff court, near the end of its opinion, discusses the

desirability of a narrow reading of RCRA on policy grounds,

to avoid “inappropriate interference with state authority.”

130 F.3d at 413. Similar policy concerns support the Fourth

Circuit’s construction of SMCRA, WVSCMRA, and the

citizen suit provisions of both.

° Clean Air Act Cases

Air, like water, moves freely across state lines, and

the Clean Air Act, like the CWA, therefore recognizes a

more prominent role for the federal government than does

SMCRA with its focus on land and coal reserves. For

example, the Clear Air Act's citizen suit provision differs

from SMCRA’s. It permits citizen suits against the EPA

Administrator, but not state officials, for violations of non-

discretionary duties. 42 U.S.C. § 7604(a)(2). Violations of

SIPs (State Implementation Plans) are made specifically

enforceable by the plain language of the CAA’s citizen suit

provision, which permits suits for violations of emission

standards or limitations. 42 U.S.C. § 7604(a)(1). The CAA

defines “emission standard or limitation” to include

schedules or timetables for compliance and “any other

standard, limitation or schedule ... under any applicable

state implementation plan.” 42 U.S.C. § 7604(f). All this

differs dramatically from SMCRA and its limited citizen suit

provision against state regulators.

Other differences separate the CAA from the opinion

below. The first CAA case Petitioners cite, Espinosa _v.

Roswell Tower, Inc., 32 F.3d 491 (10 Cir. 1994), does not

even arise under the CAA’s citizen suit provision, but rather

22

involves a suit by New Mexico’s State regulator under 42

U.S.C. 7412. The other cases involve plain statutory

constructions of 42 U.S.C. § 7604 and its specific inclusion of

SIP enforcement in its citizen suit provision.

Not one of the CAA cases cited by Petitioners even

discusses the Eleventh Amendment, Ex Parte Young or a

state’s dignity interest. Indeed, although New Jersey and

New York were named defendants in two of the cases,

neither participated in the appeals cited by plaintiffs. None

of the New York defendants appeared in the district court or

the Circuit Court in Friends of the Earth v. Carey, 535 F.2d

165, 168 n.1 (2d Cir. 1976). Likewise, in American Lung

Association v. Kean, the Second Circuit never addressed the

issue of whether the Eleventh Amendment barred this

citizen suit under the CAA against New Jersey. 871 F.2d 319

(3d Cir. 1989). Indeed, New Jersey did not join in the

appeal, contest the district court’s order, nor did it assert

sovereign immunity before the district court. Kean, 871 F.2d

at 321; 670 F.Supp. 1285, 1889-90 (D.N.J. 1987). The appeal

was taken instead by intervenor trade associations who

wanted more time to comply with the district court's order.

871 F.2d at 322-23. New Jersey was apparently “satisfied

that it was given enough time to come up with a reasonable

proposal.” Id. at 328.

In short, none of the CAA cases Petitioners cite are

applicable, because SIPs are specifically made enforceable

by the CAA’s citizen suit provision and because none of

them involved an active state defendant or discuss the

Eleventh Amendment issues presented in this case. Thus,

the only Constitutional obstacle to asserting jurisdiction that

these Courts faced is Article Iil’s “arising under” language,

a much lower barrier than the Eleventh Amendment

question this Court faces. The cases Petitioners cite actually

illustrate the wisdom of the Fourth Circuit's careful scrutiny

and construction of SMCRA, as well as the contrasts drawn

by the Fourth Circuit with the Clean Water Act, RCRA and

Clean Air Act. Each of those statutes voluntarily applies or

23

references state standards in specific situations; none of

them do so in the wholesale manner argued by Petitioners.

Because of these different statutory schemes, none of the

cases Petitioners cite illustrate any differences among the

various Circuit Courts that would warrant a grant of

certiorari.

° SMCRA Cases

No other Circuit Courts of Appeal have addressed

the same SMCRA issues presented by this case. The United

States Court of Appeals for the Third Circuit, however, has

pending before it Pennsylvania Federation of Sportsmen's

Clubs, Ir:. v. Seif, No. 01-1683. That case raises the exact

questions that were raised in Bragg. Unless and until the

Third Circuit or some highest state court disagrees with the

Fourth Circuit’s analysis, there is no reason to believe it

might be wrong. Indeed, the degision below was

unanimous and despite a petition for rehearing en banc

raising the exact same claims raised in the instant petition

for certiorari, not a single judge in the entire Fourth Circuit

voted to rehear the case.

As Petitioners note, the Fourth and Third Circuits

have addressed the different jurisdictional language in 30

U.S.C. § 1270(a)(1) and (f), but those sections are not at issue

in this case. The Fourth Circuit's decision in Molinary v.

Powell Mountain Coal Co., Inc., 125 F.3d 231 (4% Cir. 1997)

did not address whether state surface mining programs are

federal law within the purview of Ex Parte Young.

Molinary was a citizen suit against a coal operator, brought

under 30 U.S.C. § 1270(f). That section creates an action for

damages against “any operator,” not any regulatory

authority, for violations of “any rule, regulation, order or

permit issued pursuant to this chapter,” but not for

violations of SMCRA itself. Molinary did not even discuss

the Eleventh Amendment. The Third Circuit also construed

30 U.S.C. § 1270(a)(1) and (f) in Haydo v. Amerikohl Mining,

24

Inc., and concluded that SMCRA’s grant of “exclusive

jurisdiction” precluded federal jurisdiction over suits

against coal operators for alleged violations of State

programs. 830 F.2d 494, 498 (3d Cir. 1987). Haydo, like

Molinary, did not involve a claim against a state regulator,

did not involve the narrower jurisdictional language of 30

U.S.C. § 1270(a)(2) and did not reach the Ex Parte Young

issue. Accordingly, neither of these cases creates a conflict

which justifies certiorari.

II. No Compelling Need for This Court to Review The

Work of the Court of Appeals Exists Because It Has

Not Been Criticized by the Highest State Court.

This Court need not review the work of the Court of

Appeals because it has not been criticized by the highest

state court. Petitioners argue that there is some

inconsistency between the Fourth Circuit's holding in Bragg

and a series of West Virginia Supreme Court cases.

Canestraro_v. Faerber, 374 S.E.2d 319 (W.Va. 1988); DK

Excavating, Inc. v. Miano, 549 S.E.2d 280 (W.Va. 2001); and

Antco, Inc. v. Dodge Fuel Corp., 550 S.E.2d 622 (W.Va. 2001)

(collectively, “the Canestraro line”). That assertion is

wrong.

The essential holding in Bragg is that West Virginia's

mining statutes and regulations are state law, not federal

law. The Canestraro line deals with a different question:

How is state mining law to be applied or construed when

the states’ laws or regulations are less stringent than the

minimum federal standards?

Unlike many states and many reported opinions, the

law of West Virginia is expressed in syllabus points which

the State’s Constitution requires the state’s Supreme Court

of Appeals to write, as well as in the opinions themselves.

W.Va. Const. art. VIII, § 4. The syllabus points and the

opinions must be read together. See State v. Franklin, 139

W.Va. 43, 57 (1953) (citing Koblegard v. Hale, 60 W.Va. 37

(1906)) (holding that “the syllabus of the case must, of

25

course, be read in light of the opinion.”*) The first syllabus

point in Canestraro states the holding as follows:

“When a provision of the West Virginia

Surface Coal Mining and Reclamation Act is

inconsistent with federal requirements in the

Surface Mining Control and Reclamation Act,

the state act must be read in a way consistent

with the federal act.

374 S.E.2d 319, Syllabus pt. 1 (citations omitted).

The Canestraro case involved a notice and public

access provision in WVSCMRA that was approved by OSM,

but found by the West Virginia Supreme Court of Appeals

to be less stringent than the applicable federal standards. Id.

at 321. DK Excavating was an appeal from a state

administrative action, in which an excavating company

relied on a state mining statute enacted by the state’s

legislature but not approved by OSM because it was less

stringent than SMCRA. 549 S.E.2d at 283. WVDEP,

mindful of its obligations under the approved program,

argued that it could not apply the enacted, but disapproved

statute. Id. Antco held that a violation of a state permit

constitutes prima facia negligence, and follows Canestraro.

550 S.E.2d 622, Syllabus Pt. 11.

The Canestraro line simply establishes that West

Virginia law will be construed consistently with federal

minimum standards when the State’s program is less

stringent. These cases have no significance for the instant

case, which does not involve a state statute or regulation

8 Another case from the same year, Citizens National

Bank v. Burdette, 61 W.Va. 635 (1907), interpreted the West

Virginia Constitution to make the syllabus “the real decision

over the opinion.” 61 W.Va. at 636. The better, modern

practice requires considering both opinions and syllabi.

26

that is less stringent than its federal counterparts. As the

district court explained, the state buffer zone rule is “similar

[to the federal buffer zone rule, 30 C.F.R. § 816.59] but

requires additional specific findings to be made by the

Director before buffer zone incursion may be authorized.”

(App. at 59a.)

Because it requires more specific findings, the state

regulation at issue in the instant case was, if anything, more

stringent than its federal counterpart. Since the District

Court’s opinion, the buffer zone regulation has been

amended to copy the federal regulation, and no longer

contains the seven specific findings the District Court

commanded the Director to make. 38 W.Va. Code St. R. § 2-

9.2.1. For these reasons, the Canestraro line does not apply.

More importantly, however, the Canestraro line

justifies Congress’ confidence in the states as expressed in

SMCRA. It also justifies the Fourth Circuit's holding and

respect for the Eleventh Amendment's protection of West

Virginia’s dignity interest. Each case originated in West

Virginia’s state courts or state administrative processes.

Each case ultimately asked the state’s highest court to

construe state law and reconcile it with federal minimum

standards. In each case, that construction incorporated and

adopted federal minimum standards into state law when

the state law was found to be less stringent. In DK

Excavating, the state regulatory authority reached the same

conclusion.

Considering all the syllabus points and opinions, a

fair reading of the Canestraro line is that West Virginia's

court was construing and applying state law, in recognition

of SMCRA’s plan for cooperative federalism. Indeed, the

DK Excavating opinion, handed down during the pendency

of this matter, makes it clear that West Virginia's highest

court understood it was construing and applying state, not

federal law. “As DEP observes, this Court has on multiple

occasions recognized that our state mining laws have to be

27

interpreted consistent with federal law.” DK Excavating,

549 S.E.2d at 285. Further, the court observed:

It is noted that because the Legislature has

elected to provide for, and the Executive has

opted to apply for and has obtained approval

of this state plan, subsequent amendments to

the plan are rendered ineffective unless and

until approved by OSM. It is for the

Legislature and the Executive, not this Court,

to determine when, and if, it is preferable to

revert to federal regulation of this state’s

surface coal activities.

Id. at 285 n.11.

Regardless of whether the Canestraro line construes

state law to incorporate minimum federal standards or

directly applies federal law, nothing in Bragg involved less

stringent state laws. Thus, nothing in Bragg supports

Petitioner's extrapolation that Bragg demands that the state

court follow “exclusively state law, regardless of whether

federal law is more stringent.” (Petition at 30.)

The conclusion which should be drawn from the

Canestraro line is that West Virginia’s executive, legislative,

and judicial branches understand their exclusive jurisdiction

and understand their responsibility to maintain minimum

national standards within the state’s boundaries. These

cases thus create no confusion about the “validity and

content of West Virginia’s state mining program,” as

Petitioners argue. (Petition at 30.) The state’s program

applies as written. Questions about it belong in state

forums.

Persons who specifically believe WVSCMRA to be

less stringent than SMCRA, or who generally take issue

with its application by WVDEP, have more than adequate

redress in state administrative and judicial processes. If, as

28

a last resort, they believe federal regulation should displace

all or part of the State programs, a detailed, federal remedial

scheme allows OSM to act. See 30 U.S.C. §§ 1267, 1271.

Indeed, SMCRA allows concerned citizens to sue OSM in

federal court, as the West Virginia Highlands Conservancy,

a Petitioner herein, has recently done, when concerns exist

about OSM’s oversight. W.Va. Highlands Conservancy v

Norton, 147 F.Supp. 2d 474 (S.D.W.Va. 2001).? Access to the

state’s legislative and executive branches is also available, of

course, to any concerned citizen. These avenues for redress

strike the balance of cooperative federalism intended by

SMCRA - respecting State sovereignty and exclusive State

jurisdiction while vindicating the federal interest in

enforcing minimum national standards.

’ Norton, from the same district court which handled

this underlying dispute, also involved claims against

WVDEP which were dismissed in light of the Fourth

Circuit's opinion in this case. Id.

29

CONCLUSION

Because the Fourth Circuit opinion relies on a simple

statutory construction, and is not inconsistent with opinions

of this court, other federal courts or the West Virginia

Supreme Court of Appeals, certiorari should not be granted.

Respectfully submitted,

DIRECTOR, WEST VIRGINIA DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Benjamin L. Bailey (WVSB#200)

Counsel of Record

Brian A. Glasser (WVSB#6597)

Jennifer S. Fahey

BAILEY & GLASSER, LLP

227 Capitol Street

Charleston, West Virginia 25301

(304) 345-6555 Telephone

(304) 342-1110 Facsimile

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