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

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No. 01-619 ae

Jn the Supreme Court of the Gnited States ;

PATRICIA BRAGG, ET AL., PETITIONERS “

VU.

WEST VIRGINIA COAL ASSOCIATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

JOHN C. CRUDEN

Acting Assistant Attorney

General

GREER S. GOLDMAN

WILLIAM B. LAZARUS

JOHN T. STAHR

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Eleventh Amendment bars a citizen suit

under Section 520(a)(2) of the Surface Mining Control

and Reclamation Act of 1977 (SMCRA), 30 U.S.C.

1270(a)(2), against the director of a state agency in his

official capacity, when that suit alleges that the state

official has violated the provisions of a state regulatory

program that has been approved by the Secretary of

the Interior for the implementation of SMCRA in that

State.

(I)

TABLE OF CONTENTS

Opinions below ........s.ssvsssssssesenesenecsneesneessssnssnsesscesnesssesssensennsenessssens

Jurisdiction ......... om saianelaletiiiininiiuiabenstineibediaidenieenies

Statement :

ATgument .....ccssssssescssssssssseesersecrsceneenerncensenesscescescssssssasssensensssssneeees

(SSE EON ALE TEES ARO EAT OTRO A

TABLE OF AUTHORITIES

Cases:

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

(Sd Cir. 1989) ......c.ccorccscrcecssnsssorersecnseseneesssnssssseseonsescsessossesesees

Arkansas v. Oklahoma, 503 U.S. 90 EE

Ashoff v. City of Ukiah, 130 F.3d 409 (9th Cir.

1QOZ) ...cccsocscececocorereresoorereovesesscnesorecsseereovecweesevesessessesesssesecsoresese

Bragg v. Robertson, 54 F. Supp. 2d 653 (S.D. W. Va.

1999)

Bragg v. Robertson, 83 F. Supp. 2d 713 (S. D. W. Va.

DODO) ...ccrcncorereeceresesseceresocesocsorsrerevssresonscesenssesesssensnseserevecsecesesees

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

BID sec essonesersieentenerenenevinsencacteencnvonnesneropaeanindsocesvevereunwvecerstners

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

CW. Vid. BOOK). ccceceesecereescecnscovservsevessesesoncnencnserecscenserssesevenssoeonses

David D. v. Darthmouth Sch. Cm. 775 F.2d

411 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986) ....

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

Espinosa v. Roswell Tower, Inc., 32 F.3d 491

(LOth Cir. 1994) .......cccscccssscessrecseseresnsnssssensesnsnsapesscssensessereseees

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

1976), cert. denied, 434 U.S. 902 (1977) .......scssseseererseeeneers

Geis v. Board of Educ., 774 F.2d 575 (3d Cir. 1985) ........

Haydo v. Amerikohl Mining, Inc., 830 F.2d 949

OE eID csiinsstrssneenpieerennsesinptnnreiilivtaninatvimaseneteeeweuensibes

Her Majesty the Queen v. City of Detroit, 874

F.2d 332 (6th Cir. 1989) . Lissbiabhcmbesbilec

(III)

& & &

SS BS Ba

Cases—Continued: Page

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264 (1981) 2

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

231 (4th Cir. 1997), cert. denied, 522 U.S. 1118

(1998) 9, 17-18

Natural Res. Def. Council v. California Dep't of

Transp., 96 F.3d 420 (9th Cir. 1996) nA 23

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) 8, 10, 12, 13

Permanent Surface Mining Regulation Litig., In re,

653 F.2d 514 (D.C. Cir), cert. denied, 454 U.S. 822

(1981) 20, 22

Young, Ex parte, 209 U.S. 123 (1908) .ecsesseccsssee 8, 10, 17, 21, 22

Constitution, statutes and rules:

U.S. Const.:

Amend. Xi 8, 9, 10, 12, 13, 16, 21, 24

Art. VI, Cl. 2 (Supremacy Clause) 22

Clean Air Act, 42 U.S.C. 7604 23

Clean Water Act, 33 U.S.C. 1865 20.0... ...ccscssssscssssssesesssvsssosesees 23

Education of the oe Act, 20 U.S.C. 1400

et seq. 23

Resource Conservation and Recovery Act, 42 U.S.C.

6972(a)(1)(A) 23

Surface Mining Control and Reclamation Act,

30 U.S.C. 1201 et seq.: .

30 U.S.C. 1201(f) 2

30 U.S.C. 1202(a) 2

30 U.S.C. 1253(a) 2, 3, 10, 13, 20, 24

30 U.S.C. 1253(a)(1) , 3, 13

30 U.S.C. 1253(a)(3) 3, 13-14

30 U.S.C. 1253(a)(4) 3, 14

30 U.S.C. 1253(a)(7) 14

30 U.S.C. 1254(a) 11

30 U.S.C. 1254(b) (§ 504(b)) ..... 4-5, 15

30 U.S.C. 1255(a) 22

Statutes and rules—Continued: Page

Oe a a 22

30 U.S.C. 1260(b)(1) ($ 510(D)(1)) ..ceeeeceecesesececeesesesees 3,14

BO U.S.C. 1260(e) (§ 51066) .-.ceccccoccecessescescosessesessecereccecs 19

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ee Wires MTD cladistic col ies ihc as ice ce 7,16

Be ey PD icici ac 17

SP FTA, SPIER) CE GUID) ciisccrscencssceccesiwesvesesicosoncins 19

30 U.S.C. 1271(a)(1) (§ 521(a)(1)) ccecccccccccscececcesececeeeees 4,15

Oe AEs SUE NTID sibibcscipdiiectastthisihachcaintoncenecciscniwioons 4,15

BO Maas I IID isk ehcciciosncdcel asecssiisidenciscssnsbiscusiossatse 4,15

BO U.S.C. 1271(b) (§ 5210D)) ...sssssccseccssseccssscesseeesnes 5, 15-16

A es TI isha a 9,17

30 C.F.R.:

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soe ctompontes esttte,n yf NA EAC L AED 4,18

ss IR ARIE OE SSC Sr RR Sa a ONC 18

SINT WII iseiptiivcbicinshnceceithtciiaiisd sincdiibaedberdide Scdccincase 5

RIOT I Be CIO) iiicececsirsesstiicsrecdbascSecccnscinninina nic 6

W. Va. Code St. Reg. tit. 38, § 2-5.2 (2001) cccecccsscsecssssceeee 5-6

Miscellaneous:

H.R. Rep. No. 218, 95th Cong., Ist Sess. (1977) ..c..cc.scesseene 2

GE FO ee TBE CTD hii civecrsnsessssoicsecbiecsedbesoctee: 19

SOF ed Bae: COS CORD) oni 5

GEO. em, SEO IG) aricrscisetsscnscennssopceninecsivesenincciasimsenionses 18

PT iis UN i 19

Jn the Supreme Court of the Gnited States

No. 01-619

PATRICIA BRAGG, ET AL., PETITIONERS

WEST VIRGINIA COAL ASSOCIATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

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

is reported at 248 F.3d 275. The opinion of the district

court denying the state respondent’s motion to dismiss

two counts for lack of subject matter jurisdiction (Pet.

App. 30a-47a) is unreported. The opinion of the district

court granting petitioners’ motion for summary judg-

ment and a permanent injunction with respect to two

counts (Pet. App. 48a-89a) is reported at 72 F. Supp. 2d

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

the injunction pending appeal (Pet. App. 90a-93a) is

reported at 190 F.R.D. 194.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

April 24, 2001. Petitions for rehearing were denied on

July 13, 2001. The petition for a writ of certiorari was

filed on October 11, 2001. The jurisdiction of this Court

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

STATEMENT

1. Congress enacted the Surface Mining Control and

Reclamation Act of 1977 (SMCRA) to “establish a

nationwide program to protect society and the environ-

ment from the adverse effects of surface coal mining

operations.” 30 U.S.C. 1202(a). To achieve those pur-

poses, SMCRA establishes “a program of cooperative

federalism that allows the States, within limits estab-

lished by federal minimum standards, to enact and

administer their own regulatory programs, structured

to meet their own particular needs.” Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 289

(1981); see H.R. Rep. No. 218, 95th Cong., 1st Sess. 57

(1977).

SMCRA is administered for the federal government .

by the Secretary of the Interior, acting through the

Office of Surface Mining Reclamation and Enforcement

(OSM). Congress recognized, however, that because of

“the diversity in terrain, climate, biologic, chemical, and

other physical conditions subject to mining operations,”

the States should have “primary governmental respon-

sibility” for regulating surface mining “subject to this

chapter” (ze, SMCRA). 30 U.S.C. 1201(f). Accord-

ingly, SMCRA provides that a State may “assume

exclusive jurisdiction over the regulation of surface coal

mining and reclamation operations” on non-federal

lands within its borders by developing a regulatory

program meeting the standards of the federal law;

although any such state program must be approved by

the Secretary. 30 U.S.C. 1253(a).

To gain the Secretary’s approval of its SMCRA pro-

gram, a State must demonstrate that it “has the

capability of carrying out the provisions of this chapter

[SMCRA] and meeting its purposes.” 30 U.S.C.

1253(a). Among other things, the State must enact 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). The State must further establish a regula-

tory authority with sufficient personnel and funding “to

regulate surface coal mining and reclamation operations

in accordance with the requirements of this chapter.”

30 U.S.C. 1253(a)(3). Furthermore, the State must

enact a “State law which provides for the effective

implementation[], maintenance, and enforcement of a

permit system, meeting the requirements of this

subchapter [of SMCRA] for the regulations of surface

coal mining and reclamation operations for coal on lands

within the State.” 30 U.S.C. 1253(a)(4). No surface

mining permit or revision application may be approved

by the state regulatory authority under its program

unless that authority finds that “all the requirements of

this chapter and the State or Federal prograrn have

been complied with.” 30 U.S.C. 1260(b)(1).

Upon the Secretary’s approval of a state regulatory

program, the approved program “is codified” in the

Code of Federal Regulations in the applicable part

assigned to that state. 30 C.F.R. 900. 11, 900.12(a). The

final rule as published in the Code of Federal

Regulations provides notification of the Secretary’s

program approval, but does not set out the full text of

each State’s program. Rather, the state program is

available at OSM headquarters and field offices, as well

as at state regulatory authority offices. See 30 C.F.R.

900.12(a).

The Secretary’s role under SMCRA does not end

once it has approved a State’s program. Rather,

SMCRA gives the Secretary ongoing responsibility to

oversee the effectiveness of a State’s implementation of

its program, and provides in certain circumstances for

direct federal enforcement of state programs in so-

called “primacy” States (those States where the Secre-

tary has approved a state SMCRA regulatory pro-

gram). SMCRA requires the Secretary to conduct

“such inspections * * * as are necessary to evaluate

the administration of approved State programs” and “to

establish procedures to insure that adequate and

complete inspections are made.” 30 U.S.C. 1267(a) and

(h). If the Secretary “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 ten days

after notification to take appropriate action or show

good cause, the Secretary “shall immediately order

Federal inspection of the surface-coal mining opera-

tion.” 30 U.S.C. 1271(a)(1). The Secretary may also

conduct an immediate inspection, without notification to

the State, upon indication of an imminent harm.

30 U.S.C. 1271(a)(2). The Secretary may issue a federal

cessation order where an inspection reveals an

imminent danger, 30 U.S.C. 1271(a)(2), and may issue a

notice of violation to the operator in a primacy State

where a violation, but no imminent harm, is found,

30 U.S.C. 1271(a)(3). |

In addition, in the event that the Secretary concludes

that a State is not enforcing any part of its regulatory

program, OSM may provide “for the Federal enforce-

ment * * * of that part of the State program not being

enforced by such State.” 30 U.S.C. 1254(b). Further, if

the Secretary finds that a State has not adequately

demonstrated its capability and intent to enforce its

approved program, the Secretary “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 order; as are

necessary for compliance therewith.” 30 U.S.C. 1271(b).

Finally, the Secretary has authority to revoke approval

of a state program and resume direct federal regulation

of surface mining within the State. 30 U.S.C. 1254(b).

2. The Secretary approved West Virginia’s program

to implement SMCRA effective January 21, 1981.

30 C.F.R. 948.10; 46 Fed. Reg. 5915 (1981). The West

Virginia program, which is administered by the

West Virginia Division of Environmental Protection

(WVDEP), includes a so-called “buffer zone” rule

designed to protect water courses from the effects of

surface mining. That rule was modeled on, but was not

identical to, a similar buffer zone regulation of the

Department of the Interior. See 30 C.F.R. 816.57.’ At

the pertinent time, the West Virginia program’s buffer

zone rule provided as follows:

No land within one hundred feet (100’) of an inter-

mittent 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

1 After this case was decided, WVDEP amended its rule to

conform more precisely to the federal rule. Those amendments do

not affect this case.

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.

W. Va. Code St. Reg. tit. 38, § 2-5.2 (2001) (Pet. App.

llla). The Secretary approved the West Virginia

buffer zone rule pursuant to final rules issued in 1990

and 1996, noted at 30 C.F.R. 948.15 (Table).

3. This action was brought pursuant to SMCRA’s

authorization for citizen suits in the federal district

courts to compel federal and state officials to comply

with provisions of SMCRA and with regulatory pro-

grams approved thereunder. That citizen suit provision

provides as follows:

[A]ny 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—

(1) against the United States or any other

governmental instrumentality or agency to the

extent permitted by the eleventh amendment to the

Constitution which is alleged to be in violation of the

provisions of this chapter or of any rule, regulaticn,

order or permit issued pursuant thereto, or against

any other person who is alleged to be in violation of

any rule, regulation, order or permit issued

pursuant to this subchapter; or

(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 citizen-

ship of the parties.

30 U.S.C. 1270(a).

3. a. In July 1998, petitioners brought this citizen

suit under Section 1270(a)(2), asserting claims against

the Director of WVDEP in his official capacity. and

against officials of the United States Army Corps of

Engineers. Pursuant to settlements approved by the

district court,’ the parties resolved all claims except

two counts against the Director of WVDEP. Under

those claims, set forth as Counts 2 and 3 of the

complaint, petitioners alleged that the Director had

violated nondiscretionary duties by issuing surface

mining permits for “mountaintop removal” mining.

According to the complaint, mountaintop-removal sur-

face mining results in excess spoil being placed in

valleys (a process referred to as “valley fills”), near and

in streams, in violation of the West Virginia program’s

buffer zone rule. Count 2 alleged that the Director of

WVDEP engaged in a pattern and practice of issuing

permits for valley fills in intermittent and perennial

streams without making the findings required by the

buffer zone rule. Count 3 alleged that the buffer zone

rule does not authorize the Director to permit valley

fills that bury substantial portions of intermittent or

2 See Bragg v. Robertson, 83 F. Supp. 2d 713 (S.D. W. Va.

2000); Bragg v. Robertson, 54 F. Supp. 2d 653 (S.D. W. Va. 1999).

perennial streams. See Pet. App. 82a-83a. The com-

plaint requested declaratory and injunctive relief to

enforce the Director’s allegedly nondiscretionary duty

to deny permit applications that fail to comply with the

buffer zone rule.

b. The Director of WVDEP moved to dismiss

Counts 2 and 3 on the ground, among others, that those

claims were barred by the Eleventh Amendment. See

Pet. App. 32a-37a. Petitioners argued that the district

court had jurisdiction over those claims under Ex parte

Young, 209 U.S. 123 (1908), which authorizes federal

court suits against state officials seeking prospective

relief for violations of federal law. The Director con-

tended, however, that Ex parte Young did not allow the

present suit because West Virginia’s SMCRA program

was purely state law (even though it had been approved

by the Secretary based on the Secretary’s conclusion

that it was consistent with SMCRA), and that any

citizen suit to require the Director to comply with the

West Virginia program would be barred by Pennhurst

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

(1984).

The district court rejected the Director’s Eleventh

Amendment argument. Pet. App. 35a-37a. The court

held that, while the specific duties that the Director

allegedly violated are set forth in the West Virginia

code and regulations, the “language and structure of

SMCRA demonstrate * * * that these duties under an

approved State program, such as West Virginia’s, are

incorporated into federal law.” Jd. at 35a. The court

noted in particular that SMCRA and its implementing

regulations provide that, upon approval, States shall

administer federally-approved programs in accordance

with “the Act” and “this chapter” of federal law

(SMCRA itself). Id. at 36a. The court also relied on the

Fourth Circuit’s decision in Molinary v. Powell Moun-

tain Coal Co., 125 F.3d 231, 235-237 (1997), cert. denied,

522 U.S. 1118 (1998), which, although not involving the

Eleventh Amendment or a claim against a state official,

had ruled that the federal courts had federal-question

jurisdiction under 28 U.S.C. 1331 over a SMCRA citizen

suit alleging the violation of an approved state program

by a private party. Pet. App. 36a.

ce. After rejecting the Eleventh Amendment objec-

tion, the district court granted summary judgment to

petitioners on Count 2, holding that the Director of

WVDEP had violated a nondiscretionary duty to make

findings required under the state program’s buffer zone

rule before authorizing valley fills within 100 feet of an

intermittent or perennial stream. Pet. App. 83a. The

court also granted summary judgment to petitioners on

Count 3, finding that the Director had violated a

nondiscretionary duty under the buffer zone rule to

deny permits for valley fills affecting intermittent and

perennial streams. Jd. at 87a. The court entered a

permanent injunction preventing the Director “from

further violations of the nondiscretionary duties dis-

cussed 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.”

Ibid.

4. On the Director’s appeal, the court of appeals

vacated the judgment of the district court, and re-

manded the case with instructions to dismiss Counts 2

and 3 as barred by the Eleventh Amendment, without

prejudice to any suit petitioners might file in the West

Virginia state courts. Pet. App. 29a.° The court of.

appeals agreed with the Director that this suit is

precluded by Pennhurst because it alleges only a viola-

tion of state law. Jd. at 17a-25a.

Rejecting the contention that SMCRA provides for

“shared regulation of coal mining” between the federal

government and the states, Pet. App. 17a, the court of

appeals concluded that SMCRA established “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.” Jd. at

18a. The court relied principally on 30 U.S.C. 1253(a),

which states that, once a state SMCRA regulatory

program is approved by the Secretary, the State

assumes “exclusive jurisdiction over the regulation of

surface coal mining” and reclamation operations. See

Pet. App. 9a, 18a-2la. In the court’s view, that

exclusive-jurisdiction provision reflected a “careful and

deliberate” congressional policy to the effect that “the

States, not the federal government,” are to develop and

implement regulatory programs to achieve the

purposes of SMCRA. Id. at 18a.

The court of appeals acknowledged that “SMCRA

does manifest an ongoing federal interest in assuring

8 The federal officials named as defendants to petitioners’

action also appealed from the district court’s injunction, on grounds

unrelated to the Eleventh Amendment question presented by the

certiorari petition. In light of its conclusion that the Eleventh |

Amendment barred Counts 2 and 3 entirely, the court of appeals

did not reach the issues presented by the federal appellants. In its

brief filed in the court of appeals, the federal government agreed

with petitioners that the Eleventh Amendment did not bar their

citizen suit, and that such a suit could proceed under Ex parte

Young.

that minimum national standards for surface coal

mining are enforced.” Pet. App. 18a. For example, it

observed that, to ensure achievement of minimum

federal standards for surface mining regulation and

control, SMCRA permits “limited and ordered federal

oversight, grounded in a process that can lead

ultimately to the withdrawal of the State’s exclusive

control.” Jd. at 19a. But, it stated, “{uJntil that with-

drawal occurs, * * * the minimum national standards

are attained by State enforcement of its own law.” [bid.

The court of appeals also contrasted SMCRA’s pro-

vision for “exclusive” state jurisdiction over regulation

of surface mining in primacy states with 30 U.S.C.

1254(a), which provides that the Secretary shall prom-

ulgate and implement a federal program if a State fails

to submit an acceptable program or fails to implement,

enforce, or maintain an approved program. See Pet.

App. 18a. The court understood SMCRA to provide for

“either State regulation of surface coal mining within

its borders or federal regulation, but not both,” and that

“one or the other is exclusive * * * with the exception

that an approved State program is always subject to

revocation when a State fails to enforce it.” Pet. App.

9a. Thus, the court concluded, “(bly 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.” Jd. at 20a.

Based on its determination that state SMCRA pro-

grams, like West Virginia’s, that have been approved

by the Secretary are purely state law in character, the

court of appeals held that any injunction by a federal

court against a state official to enforce a provision of a

state SMCRA program (such as the State’s buffer zone

rule at issue here) would contravene the Eleventh

Amendment. Pet. App. 2la-25a. The court acknowl-

edged that the federal interest in adjudicating the

dispute in this case is “undoubtedly stronger” than was

the case in Pennhurst, because “the rights at issue [in

this case] were created by the State pursuant to a

federal invitation to implement a program that met

certain minimum standards set by Congress.” Jd. at

22a. In addition, the court noted that “the federal

government, through the Secretary’s oversight role,

retains an important modicum of control over the

enforcement of that State law.” Jd. at 22a-23a.

Nevertheless, the court found that an order against the

Director in this case requiring him to comply with state

law would infringe the “dignity and respect afforded a

State” as well as the States’ “unique interest in the

enforcement of their own law.” Jd. at 23a-24a (citation

omitted). The court also observed that West Virginia

has enacted a similar citizen suit provision giving

affected individuals the right to sue in state court to

compel the Director to comply with the State’s SMCRA

program. Jd. at 24a. Accordingly, the court was of the

view that “the federal interest in maintaining the

State’s compliance with its own program may be

fulfilled via suit in [state court], in a manner that does

not offend the dignity of the State.” [bid.

ARGUMENT

The court of appeals’ Eleventh Amendment ruling in

this case does not warrant this Court’s review at this

time. That decision is, indeed, in tension with other

appellate decisions concerning citizen suit provisions

against state officials under other federal statutes, and

with decisions holding that approved state programs

under SMCRA have a federal-law character. But no

other court of appeals or state supreme court has

decided the precise issue that was before the lower

court in this case—namely, whether a citizen suit unaer

SMCRA in federal court to compel a state official to

perform a nondiscretionary duty under a state SMCRA

program that has been approved by the Secretary of

the Interior is barred by the Eleventh Amendment.

Accordingly, further review of this case is not

warranted.

1. a. The basic premise of the court of appeals’

- decision is that, once the Secretary approves a State’s

SMCRA plan, the regulation of surface mining in that

State becomes exclusively a matter of state law, and

federal law “drops out” entirely. See Pet. App. 9a.

That premise rests on a fundamental misunderstanding

of SMCRA. Several provisions of SMCRA demonstrate

that, even after a State, pursuant to the Secretary’s

approval of its SMCRA plan, assumes responsibility for

regulating surface mining under SMCRA, that regula-

tion retains a significant federal character, and state

officials retain federal duties under SMCRA in imple-

menting their state programs. Consequently, a citizen

suit to enforce the terms of a state SMCRA plan is not

barred by Pennhurst.

First, for a State to gain the Secretary’s approval to

administer SMCRA, the State must demonstrate that it

“has the capability of carrying out the provisions of this

chapter and meeting its purposes.” 30 U.S.C. 1253(a)

(emphasis added). Among other things, the State must

enact a law “which provides for the regulation of sur-

face coal mining and reclamation operations in accor-

dance with the requirements of this chapter.” 30 U.S.C.

1253(a)(1) (emphasis added). The State must further

establish a regulatory authority with sufficient person-

nel and funding “to regulate surface coal mining and

reclamation operations in accordance with the require-

ments of this chapter.” 30 U.S.C. 1253(a)(3) (emphasis

added). To do so, the State must establish a permit

program sufficient for “meeting the requirements of this

subchapter for the regulations of surface coal mining

and reclamation operations.” 30 U.S.C. 1253(a)(4) (em-

phasis added). Finally, the State must establish “rules

and regulations consistent with regulations issued by

the Secretary pursuant to this chapter.” 30 U.S.C.

1253(a)(7) (emphasis added). Those provisions all dem-

onstrate that the basic function of a state SMCRA pro-

gram approved by the Secretary is to implement “this

chapter” of federal law—that is, SMCRA.

Of particular relevance here, Section 510(b)(1) of

SMCRA, which is part of SMCRA’s requirements gov-

erning the issuance of permits for surface mining opera-

tions, provides that no permit or revision application

shall be approved unless the appropriate state or fed-

eral regulatory authority finds “that all the require-

ments of this chapter and the State or Federal program

have been complied with.” 30 U.S.C. 1260(b)(1). Thus,

federal law—namely, SMCRA itself—precludes a state

regulatory authority from issuing a permit that does

not comply with a State’s program that has been

approved by the Secretary to implement SMCRA. The

fact that a particular requirement is codified in state

law does not alter the fact that federal law mandates

that state officials adhere to that requirement, and that

federal law is violated if a state official fails to do so.

Although the district court recognized that States with

approved SMCRA programs have an obligation rooted

in federal law to ensure that surface mining operations

comply with the terms of the approved state programs

(see Pet. App. 82a-83a), the court of appeals failed to

apprehend that point, and stated, incorrectly, that,

“(hlecause [Section 1260] establishes minimum stan-

dards that have been adopted by West Virginia and

approved by the Secretary, * * * any violation of this

standard involves State law, not federal law” (id. at

21a).

SMCRA also makes clear that, even after the

Secretary has approved a state program, the Secretary

retains substantial, ongoing responsibility to enforce

the terms of that program. For example, Section

521(a)(1) of SMCRA provides that, where the Secretary

has reason to believe that any person is in violation of

any requirement of SMCRA “or any permit condition

required by this chapter,” and a State with an approved

program fails within ten days after notification to take

appropriate corrective action or show good cause, the

Secretary “shall immediately order Federal inspection

of the surface coal mining operation.” 30 U.S.C.

1271(a)(1). The Secretary may then issue to the opera-

tor a notice of violation, 30 U.S.C. 1271(a)(3), or, in the

case of an imminent danger, a cessation order, 30 U.S.C.

1271(a)(2). In addition, Section 504(b) of SMCRA, titled

“Federal enforcement of State program,” provides that,

in the event that a State is not enforcing any part of its

approved program, “the Secretary may provide for the

Federal enforcement, under the provisions of section

1271 of this title [SMCRA Section 521], of that part of

the State program not being enforced by such State.” 30

U.S.C. 1254(b) (emphasis added). Finally, SMCRA

Section 521(b), titled “Inadequate State enforcement;

notice and hearing,” provides that, if the Secretary

finds that a State has not adequately demonstrated its

capability and intent to enforce its approved program,

the Secretary “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.” 30 U.S.C. 1271(b).

Thus, by SMCRA’s express terms, the Secretary has

the continuing authority and responsibility to enforce

the requirements of an approved state program directly

if the State fails to do so. Of paticular relevance here,

those provisions make clear that state officials have a

federal duty to comply with permitting requirements

under the state plan. They rest on Congress’s under-

standing that the terms of approved state programs

would be federal in character and therefore could be

enforced against private parties by a federal regulatory

agency. And they demonstrate that the Secretary’s

authority to ensure compliance with SMCRA is not

limited, as the court of appeals suggested, to revoking

federal approval of a State’s SMCRA plan if the Secre-

tary finds that the State’s enforcement of SMCRA has

been ineffective. See Pet. App. 9a, 21a.

Indeed, SMCRA’s citizen suit provisions themselves

demonstrate that approved state SMCRA programs

have a federal character that permits their enforcement

in federal court as federal law. The citizen suit provi-

sion at issue here rests on the assumption that a state

official’s alleged failure to comply with an approved

state SMCRA program presents 4 federal question, for

that provision expressly authorizes a suit in federal

court against the “appropriate State regulatory author-

ity” (to the extent permitted by the Eleventh

Amendment) “where there is alleged, a failure of the

* * * appropriate State regulatory authority” to per-

form a nondiscretionary duty. 30 U.S.C. 1270(a)(2). If,

as the court of appeals believed, a state official’s compli-

ance with an approved state SMCRA program could

never implicate an issue of federal law, it would be

difficult to understand why Congress would have

authorized citizen suits in federal court against state

officials. Congress similarly authorized a suit for

damages in federal court against a surface mining

operator at the behest of any person who is harmed by

the operator’s violation of “any rule, regulation, order,

or permit issued pursuant to this [Act]’—necessarily

including such rules, regulations, orders, and permits

issued by state regulatory authorities under approved

state SMCRA programs. 30 U.S.C. 1270(f). That cause

of action, too, rests on Congress’s understanding that

the violation of an approved state SMCRA program

presents a question of federal law.‘

‘ Indeed, the court of appeals reached that very conclusion in

Molinary v. Powell Mountain Coal Co., 125 F.3d 231 (4th Cir.

1997), cert. denied, 522 U.S. 1118 (1998). The district court in this

case relied on Molinary in holding that violations of state SMCRA

programs by state officials arise under federal law and are there-

fore enforceable under Ex parte Young (see Pet. App. 36a-37a). In

Molinary, landowners brought suit against a private surface

mining operator under Section 1270(f), alleging that the operator

had failed to comply with certain Virginia SMCRA regulations

that had been approved by the Secretary. The operator moved to

dismiss on the ground that provisions of an approved state

SMCRA program are not issued “pursuant to this chapter”

(SMCRA), and that federal courts consequently lack jurisdiction

over private damages actions against surface mining operators in

States with approved programs. 125 F.3d at 233-236. The court of

appeals rejected that argument. It held that a federal cause of

action exists under Section 1270(f) to enforce the terms of an

approved state SMCRA program against a surface mining opera-

tor, and that federal question jurisdiction over such a suit rests on

28 U.S.C. 1331. See 125 F.3d at 236-237. The court stated that,

“once the Secretary approves a state surface coal mining and

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

b. The understanding that approved state SMCRA

programs have a federal as well as a state character is

reflected in the Secretary’s regulations implementing

SMCRA and in the Secretary’s longstanding interpre-

tation of SMCRA. The Secretary’s regulations provide

that, upon the Secretary’s approval of a state SMCRA

program, the program is “codified” in a part of the Code

of Federal Regulations reserved for that purpose. See

30 C.F.R. 900.12(a). In addition, 30 C.F.R. 900.12(b)

provides that the “[p]rovisions of approved State

regulatory programs or permits issued pursuant to an

approved State regulatory program may be enforced by

the Secretary.” The Secretary explained, in issuing

those regulations, that 30 C.F.R. 900.12(b) “provides

notice to the public that the Secretary may enforce

provisions of the Act or conditions of permits issued

pursuant to State programs,” and the rule “will allow

the Secretary to take direct and immediate enforce-

ment action.” 48 Fed. Reg. 6333 (1983).

Since the Department of the Interior’s first sub-

stantive rulemaking 22 years ago implementing a

permanent regulatory program, the Secretary has

consistently read SMCRA to provide that a state

SMCRA program approved by the Secretary is federal

issued under that program are ‘issued,’ in the language of [Section

1270(f)], ‘pursuant to’ SMCRA.” Jd. at 236.

In the decision below, the court of appeals did not address

Molinary, except to state 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.” Pet. App. 27a. But see Haydo

v. Amerikohl Mining, Inc., 830 F.2d 494, 496-498 (3d Cir. 1987)

(holding, contrary to Molinary, that federal courts lacked jurisdic-

tion over SMCRA damages action brought against private opera-

tors based on alleged violations of the approved Pennsylvania

SMCRA program).

as well as state in character. In 1979, the Secretary

issued final rules that included a requirement, set forth

at 30 C.F.R. 778.14, that permit applicants must pro-

vide information concerning compliance history under

SMCRA and other statutes. The Secretary promul-

gated that regulation in part to implement SMCRA

Section 510(c), which provides that an applicant shall

file a schedule listing all notices of violation “of this

chapter” in connection with any surface coal mining

operation in the prior three years. 30 U.S.C. 1260(c).

The preamble to the rule, citing expressly to the

SMCRA citizen suit provision at issue here, states as

follows:

[SMCRA|’s State programs, while adopted in the

first instance by the States, will also become Fed-

eral law when approved by the Secretary of

Interior, being promulgated 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. 15,023 (1979).

The Secretary reiterated those principles in 1988 in

promulgating amendments to the rules relating to

federal inspections and notices of violation in primacy

states, pursuant to Section 521(a). 53 Fed. Reg. 26,737

(1988). In explaining that a purpose of the rulemaking

was to provide a rational process to resolve disagree-

ments and avoid unnecessary issuance of federal notices

of violation in primacy States, the preamble stated that,

“(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.”

Ibid. |

ce. ‘The court of appeals gave dispositive weight to

the fact that a State that wishes to obtain “exclusive”

jurisdiction over the regulation of surface coal mining

and reclamation operations in the State shall submit a

state program to the Secretary for approvai. 30 U.S.C.

1253(a); see Pet. App. 17a-19a (relying on this language

to distinguish SMCRA from other “cooperative federal-

ism” statutes). The court of appeals, however, ascribed

excessive significance to the single word “exclusive”

in that introductory sentence of one subsection of

SMCRA. That word plainly does not manifest an intent

on the part of Congress that approved state programs

implementing SMCRA would have no federal character

and would be the exclusive responsibility of the State to

- enforce. Such a conclusion would be inconsistent with

numerous other provisions of SMCRA discussed above

(pp. 2-3, 4-5, 13-19, supra), which demonstrate that,

after such a state program has been approved, state of-

ficials have a federal duty to comply with the permit-

ting requirements of both SMCRA and the state plan,

and that compliance by state officials (and private

surface mining operators) with the requirements of the

approved state SMCRA programs presents issues of

federal law. :

It is more consistent with SMCRA to construe Sec-

tion 1253(a) as merely confirming that, “[a]s long as the

state properly enforces its approved program, it is the

exclusive ‘on the scene’ regulatory authority.” In re

Permanent Surface Mining Regulation Litig., 653 F.2d

514, 519 (D.C. Cir.) (en banc), cert. denied, 454 U.S. 822

(1981). Thus, the States, and not the federal govern-

ment, issue permits and monitor compliance with the

permits once a state program has been approved. But

that general proposition is subject to the key qualifica-

tion noted by the D.C. Circuit: “[a]s long as the state

properly enforces its approved program.” Ibid. It is

precisely the function of the citizen suit provision at

issue here to ensure that the State does properly en- -

force its approved program, and the question whether a

State is properly enforcing its program is a federal

question within the jurisdiction of the federal courts.

Accordingly, the allegations raised by Counts 2 and 3

of petitioners’ complaint, to the effect that the Director

of WVDEP has failed to comply with alleged non-

discretionary duties under the West Virginia SMCRA

program, are not barred by the Eleventh Amendment,

but are cognizable in federal court under Ex parte

Young. Those counts put at issue whether state

officials have properly enforced a program designed to

implement a federal statute, which was approved by

the Secretary based on the State’s representation and

showing that the program complied with and would

provide for the adequate enforcement of federal law,

and which itself is directly enforceable by the Secretary

if the state fails to enforce the program adequately.

The structure of SMCRA makes clear that those counts

raise federal questions that fall within the jurisdiction

of the federal courts.

2. Although the court of appeals’ Eleventh Amend-

ment ruling in this case is incorrect, further review of

that ruling is not warranted at this time. No other

court of appeals has yet addressed whether the Elev-

enth Amendment bars a SMCRA citizen suit against a

state official alleging the violation of provisions of an

approved state plan. Thus, the decision below does not

conflict directly with the decision of any other court of

appeals.”

5 The same Eleventh Amendment issue is now pending before

the Third Circuit in Pennsylvania Federation of Sportsmen’s

Clubs v. Seif, Nos. 00-2139 and 01-1683. Briefing in that case was

completed in November 2001. No argument date has been set.

Petitioners argue that the decision below is

inconsistent with the D.C. Circuit’s en banc decision in

In re Permanent Surface Mining Regulation Litig.,

supra, in which that court stated that, after the Secre-

tary has approved a state SMCRA program, the public

has “the right to sue in federal court, to compel compli-

ance with the state program and its permits.” 653 F.2d

at 519 (citing 30 U.S.C. 1270). That case, however, did

not directly involve SMCRA’s citizen suit provision or

the Eleventh Amendment; rather, the issue before the

court was whether the Secretary has the authority to

require that States’ SMCRA programs comply with

federal regulations implementing SMCRA as well as

with the statute itself. See id. at 521-527.

Nor, contrary to petitioners’ contention, does the

decision below conflict with decisions of the West Vir-

ginia Supreme Court concerning West Virginia’s

SMCRA program (see Pet. 29-30). In those decisions,

the West Virginia Supreme Court held that, under the

Supremacy Clause of the United States Constitution, a

state SMCRA program that is inconsistent with a

requirement of SMCRA may not be enforced, and that

state officials responsible for administering the state

program must comply with more stringent provisions of

SMCRA and federal regulations where applicable. See

DK Excavating, Inc. v. Miano, 549'S.E.2d 280, 284-285

(W. Va. 2001); Canestaro v. Faerber, 374 S.E.2d 319,

321 (W. Va. 1988); see also 30 U.S.C. 1255(a) and (b)

(providing that any state law or regulation that is

inconsistent with SMCRA is superseded by SMCRA,

unless the state law is more stringent than SMCRA).

The West Virginia Supreme Court had no occasion to

consider whether a suit to compel state officials’ compli-

ance with a state SMCRA program could proceed in

federal court under Ex parte Young.

Petitioners also argue (Pet. 23-28) that the decision

below conflicts with decisions recognizing the federal

character of state requirements under other “coopera-

tive federalism” statutes. It is correct that there is

tension between the decision below and some of those

other decisions, which hold or at least recognize that

there is a federal character to state programs designed

to implement federal statutes and approved by a

federal agency.’ There is, however, no direct conflict

6 See Ashoff v. City of Ukiah, 130 F.3d 409, 411 (9th Cir. 1997)

(holding that citizen suit provision of Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6972(a)(1)(A), authorizes suits

after the State has adopted a RCRA program, because “federal

criteria give the state standards legal effect under federal law”);

Natural Res. Def. Council v. California Dep't of Transp., 96 F.3d

420, 424 (9th Cir. 1996) (recognizing that Congress intended, under

Clean Water Act, 33 U.S.C. 1365, “to authorize citizens to bring Ex

parte Young suits against state officials with the responsibility to

comply with clean water standards and permits”), American Lung

Ass'n v. Kean, 871 F.2d 319, 322-325 (3d Cir. 1989) (holding that,

under citizen suit provision of Clean Air Act, 42 U.S.C. 7604,

district court has jurisdiction over citizen suit to compel state offi-

cials to enact regulatory scheme to which the State had committed

itself); David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 419 (1st

Cir. 1985) (recognizing that terms of state plan to provide free

appropriate education for handicapped children, implementing

Education of the Handicapped Act (EHA), 20 U.S.C. 1400 et seq.,

are enforceable in either federal or state court), cert. denied, 475

U.S. 1140 (1986); Geis v. Board of Educ., 774 F.2d 575, 581 (3d Cir.

1985) (holding that federal court has jurisdiction over action to

enforce state regulations to implement EHA, because “federal law

incorporates by reference requirements established by state law”);

Friends of the Earth v. Carey, 5385 F.2d 165, 173 (2d Cir. 1976)

(recognizing that citizen suit under Clean Air Act may be brought

against state officials to enforce terms of state implementation

plan), cert. denied, 434 U.S. 902 (1977); see also Arkansas v. Okla-

homa, 508 U.S. 91 (1992) (holding in interstate context that EPA

Clean Water Act regulation effectively incorporates into federal

between those decisions and the decision below. In

particular, none of those other appellate decisions

concerned a federal statute that contains language

similar to the language in 30 U.S.C. 1253(a), on which

the court of appeals placed such great emphasis in this

case, providing that a state has “exclusive jurisdiction”

to regulate once the federal government has approved

the state’s plan. See pp. 10, 19-20, supra. Therefore,

while the court of appeals may have erred in relying on

that language in SMCRA to rule that this action is

barred by the Eleventh Amendmeat, it nonetheless re-

mains the case that the court below found that language.

to be the crucial feature distinguishing SMCRA from

other cooperative-federalism statutes, inciuding other

environmental statutes. In the absence of any other

federal appellate decision considering Eleventh Amend-

ment issue presented here under SMCRA, there is

presently no conflict in the courts of appeals warranting

this Court’s review of that issue.

law those state-law water-quality standards that EPA reasonably

determines to be applicable and requiring courts to defer to EPA’s

reasonable interpretation of those standards); Espinosa v. Roswell

Tower, Inc., 32 F.3d 491, 492 (10th Cir. 1994) (stating that a state

implementation plan approved by EPA under Clean Air Act “has

the force and effect of federal law, thereby permitting the

Administrator to enforce it in federal court”); Her Majesty the

Queen. v. City of Detroit, 874 F.2d 332, 335 (6th Cir. 1989) (stating

that, “[i]f a state implementation plan (“SIP”) [the Clean Air Act]

is approved by the EPA, its requirements become federal law and

are fully enforceable in federal court”). Petitioner also cites (Pet.

26) EPA v. California, 426 U.S. 200, 224-225 (1976), for the propo-

sition that conditions in discharge permits issued under state

Clean Water Act programs are enforceable in federal court citizen

suits. While we agree with that proposition, we do not read the

cited discussion in that case as establishing that rule.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.