Petition for Writ of Certiorari — Save Our Cumberland Mountains, Inc. v. Babbitt

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QE YAR

“ No. _. “it 2)

rIurp

NOV 16 1992

IN THE

Supreme Court of the Gnited Stat

OCTOBER TERM, 1992

SAVE OUk CUMBERLAND MOUNTAINS, INC.,

Pe titioner,

MANUEL LUJAN, Secretary,

UNITED SraTES DEPARTMENT OF INTERIOR,

and

NATIONAL COAL ASSOCIATION and

AMERICAN MINING CONGRESS,

et al.,

Re sponde nis.

PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR

DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JUDITH A. MATHER

Counsel of Record

RoBIN H. SANGSTON

KAREN A. Post

THE

Dow, Lounges & ALBERTSON

1255 Twenty-third Street, N.W.

Washington, D.C. 20037

(202) 857-2500

L. THOMAS GALLOWAY

GALLOWAY & ASSOCIATES

1835 K Street, Suite 803

Washington, D.C. 20006

(202) 833-9084

November 16, 1992 Attorneys for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

~ Whether section 520(c\(1) of the Surface Mining

Control and Reclamation Act (‘““SMCRA” or “the

Act”), 30 U.S.C. § 1270(c)\1) (1988), which provides

that certain actions are to be brought where surface

coal mining operations are located, applies to citizen

suits brought against the Secretary of the United

States Department of the Interior and the Director

of the Office of Surface Mining Reclamation and En-

forcement under section 520(a\(2) of the Act. 30

U.S.C. § 1270(a)2) (1988), for failure on a nationwide

level to perform mandatory duties under the Act?

PARTIES TO THE PROCEEDING

Petitioner, plaintiff in the district court and appel-

lee in the court of appeals, is Save Our Cumberland

Mountains, Inc. (‘“‘“SOCM’’).* Respondents are Manuel

Lujan, Secretary of the United States Department of

the Interior, and Harry Snyder, Director of the Office

of Surface Mining Reclamation and Enforcement, (col-

lectively ‘‘the Secretary’’), in their official capacities,

who were defendants in the district court and

appellees in the court of appeals. National Coal As-

sociation and American Mining Congress, intervenors-

appellants in the court of appeals, are also

respondents.

* SOCM has no parent companies or subsidiaries.

The Council of Southern Mountains, Inc. (““CSM’’) was also

a plaintiff in the district court and an appellee in the court of

appeals, but is no longer in existence and, therefore, is not a

party to this proceeding.

TABLE OF CONTENTS

Page

ology ela l

OE sibancesssecinsnsccnasstcina hccsninc. 2

STATUTE INVOLVED 000... EE ee 3

omen? OF THE CASE 3

REASONS FOR GRANTING THE PETITION ....... .

I. THE COURT OF APPEALS’ DECISION HAS

THE EFFECT OF ABOLISHING PATTERN

ee PRACTICE SUITS oo. 9

Il. THE CIRCUIT COURT DECISION WILL IM.

III. THIS CASE IS IMPORTANT TO THE ENVI-

RONMENTAL WELFARE OF THIS

DMR snsnsesbcinsncycssecsstsccarcervcsriggeevsacee— 16

Fe isnneessncpemntcaservecntsonnecc., 17

TABLE OF AUTHORITIES

CASES Page

Alaska Ctr. for the Env’t v. Reilly, 762 F. Supp.

ROS CO a DRUM. RIDES: ssvnsarsancssccerassensoassvees 10,15

American Lung Ass'n v. Reilly, 962 F.2d 258 (2d

Rls BNE sikiinteiclastcdsacerinvuiaiaciskenenacttesabean’ 10,15

Environmental Defense Fund, Inc. v. Costle, 636

Fe REED GEIS. Gi, FD ssskinsensccsvsoscsacseresss 10

Environmental Defense Fund, Inc. v. Thomas, 870

F.2d 892 (2d Cir.), cert. denied, 493 U.S. 991

ED dic pcckinaadanciancsdannenieddanaen barman tiene 10

Lujan v. National Wildlife Fed’n, 110 S. Ct. 3177

CITT cusececsadceu on sontiainnsekenkseanadacekapbieiunausiatagiincansnns 11

National Black Police Ass’n v. Velde, 712 F.2d 569

(D.C. Cir. 1983), cert. denied, 466 U.S. 963

SIMNUEN <:daudianactusasiabskeinannnddavsianbansaudcshumnniviie namics 10

Natwnal Wildlife Fed’n v. Gorsuch, 693 F.2d 156

Na, Ms TINE sanncaccacaihonsnacannaous veuanianceceesexeses 10

Natural Resources Defense Council, Inc. v. Train,

510 F.2d 692 (D.C. Cir. 1975) ..........ccccccccoossss 10

Save Our Cumberland Mountains, Inc. v. Clark, 725

F.2d 1434 (D.C. Cir. 1984) (vacated) .............. 2.5

Save Our Cumberland Mountains, Inc. v. Clark, 22

Env’t Rep. Cas. (BNA) 1217 (D.D.C. Jan. 31,

POU sissasncipnueanssicinecaniabeaesacsaduactbcinsasinniecenninteiats 2,5

Save Our Cumberland Mountains, Inc. v. Lujan,

963 F.2d 1541 (D.C. Cir. 1992) ................esee0 passim

Save Our Cumberland Mountains, Inc. v. Lujan, 21

Envtl. L. Rep. (Envtl. L. Inst.) 20,121 (D.D.C.

SG: ic IE eecteaeresrtenhiijanaie aethciadenes nance 2,6

Save Our Cumberland Mountains, Inc. v. Watt, 550

Fe BRD. DTD CDI. TGR) ccesnssisisccsssvessecsecses 25

Save Our Cumberland Mountains, Inc. v. Watt, 18

Env’t Rep. Cas. (BNA) 1821 (D.D.C. Dec. 29,

|. ___+ RR PIERRE apse oO eRe TERI, ROSE DnyS SER emNON EDT CAT y ONCE 25

Table of Authorities Continued

Page

United States v. Federal Communications Comm'n.

652 F.2d 72 (D.C. Cir. 1980) oo... 10

Women’s Equity Action League v. Cavazos, 906 F.2d

ORe CA. I A oc oe 11,12

STATUTES AND REGULATIONS

28 U.S.C. § 1254(1) (1988) ooocecccccccccecceccec cc. 3

28 U.S.C. § 1331 (1988) ooo ccccccceccecceceeccc co. 4

2B U.S.C. § 1837 (1988) ooccccccecccccascsoseccecceccsees.c..... 4

28 U.S.C. § 1361 (1988) oon cceccccccccceseceececccc... 4

28 U.S.C. § 1392) (19BB) oocicccccccccccccccccscss..s... 5

28 U.S.C. § 2201 (1988) ooo. eeeccccccccoscococeececc.. 4

28 U.S.C. § 2202 (1988) ooo ccccccccccceccecceseecccc 4

30 U.S.C. § 1260(c) (1988) oon. eecceccecceseececeececcc cc. 4

30 U.S.C. § 1268(e) (1988) ooo eccccccccceccceecec cc. 4

30 U.S.C. § 1268(f) (1988) ooo cccccccccccececcececcc 4

30 U.S.C. § 1268(h) (1988) oo ccceccccccceseceececccc. 4

OO USL. § 127) CORB ble 3,12

30 U.S.C. § 1270(a)(1) (1988) ooo eeeececceccececceee cc. 7

30 U.S.C. § 1270(a)(2) (1988) oo... passim

30 U.S.C. § 1270(c1) (1988) .o...ececceccccccceececes cc... passim

30 U.S.C. § 1271(aX(1) (1988) oo eeccececcececceccececcccc 3,

30 U.S.C. § 1271(a)(3) (1988) ooeeecccccececcececcec cc. 4

30 U.S.C. § 1271(a)(4) (1988) ooo ceccccccececcecscece 4

30 U.S.C. § 1271(c) (1988) ooo eecceccceccscesecceceeecccc... 4

SS U.S.C. § 1865 (19GB) oo. csc ccs ccoccoceeeccccce.c 12

33 U.S.C. § 1365(c1) (1988) ooo eeccececcceecececceccc cc. 16

42 U.S.C. § T6084 (1968) cocci slie 1]

42 U.S.C. § 7604(cX1) (1988) oo. cececceceececeecs cc. 15

30 C.F.R. § 723.15(b\2) (1992) ooo eeccceccececeee 4

Table of Authorities Continued

Page

LEGISLATIVE MATERIALS

H.R. Rep. No. 218, 95th Cong., Ist Sess. 88-89

CETUS. sctnincettenniescanea mies ekthalnkicsimamueaene 9

MISCELLANEOUS

Department of the Interior News Release, January

GA, TDs: scccsesnsesasadbincipssieaiomeae eee ee 17

a _

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. ___

SAVE OuR CUMBERLAND MOUNTAINS, INc..

Petitioner.

MANUEL LUJAN, Secretary,

UNITED STATES DEPARTMENT OF INTERIOR, et al..

and

NATIONAL COAL ASSOCIATION and

AMERICAN MINING CONGRESS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

SOCM hereby petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the District of Columbia Circuit in this

case.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the District of Columbia Circuit is reported at 963

F.2d 1541, 60 U.S.L.W. 2755, 34 Env’t Rep. Cas.

(BNA) 1876, 295 U.S. App. D.C. 374, 22 Envtl. L.

Rep. (Envtl. L. Inst.) 21,179 (D.C. Cir. May 22, 1992),

and is reprinted in the Appendix hereto at la-22a.!

The opinion of the district court is reported at 21

Envtl. L Rep. (Envtl. L. Inst.) 20,121 (D.D.C. Sept.

5, 1990), and is reprinted in the Appendix at 23a-32a.

This case was previously in both the United States

District Court for the District of Columbia and the

United States Court of Appeals for the District of

Columbia Circuit. The earlier district court opinion is

reported at 550 F. Supp. 979, 18 Env’t Rep. Cas.

(BNA) 1817, 18 Envtl. L. Rep. (Envtl. L. Inst.) 20,284

(D.D.C. Sept. 30, 1982), and is reprinted in the Ap-

pendix at 33a-4la. The order denying reconsideration

is reported at 18 Env’t Rep. Cas. (BNA) 1821, 13

Envtl. L. Rep. (Envtl. L. Inst.) 20,531 (D.D.C. Dec.

29, 1982), and is reprinted in the Appendix at 42a-

45a. The earlier opinion of the United States Court

of Appeals for the District of Columbia Circuit is

reported at 725 F.2d 1434, 20 Env’t Rep. Cas. (BNA)

1315, 233 U.S. App. D.C. 328, 14 Envtl. L. Rep.

(Envtl. L. Inst.) 20,205 (D.C. Cir. Jan. 20, 1984), and

is reprinted in the Appendix at 46a-53a. The district

court’s consent order approving the parties’ 1984 set-

tlement agreement is reported at 22 Env’t Rep. Cas.

(BNA) 1217 (D.D.C. Jan. 31, 1985).*

JURISDICTION

The judgment of the United States Court of Appeais

for the District of Columbia Circuit was entered on

; ae to the —— to this Petition are cited herein

TRO: TE ccs

* There are also a number of opinions and orders regarding

the award-of attorneys’ fees in this case. Those opinions and

orders are not relevant to this Petition. -

May 22, 1992. Rehearing and rehearing en banc were

denied on August 18, 1992. App. at 54a. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1) (1988).

STATUTE INVOLVED

The relevant statutory provision is 30 U.S.C. § 1270

(1988), which is reprinted in the Appendix at 55a-57a.

STATEMENT OF THE CASE

This case commenced in 1981 when two Appala-

chian-based nonprofit environmental organizations,

SOCM and CSM,’ filed suit in the United States Dis-

trict Court for the District of Columbia charging the

Secretary with the wholesale nationwide failure to

perform certain mandatory duties to enforce provi-

sions of the Act. Specifically, SOCM charged that, in

over 700 instances nationwide, the Secretary had

failed to impose mandatory civil penalties and to take

appropriate enforcement actions against surface coal

mine operators who had been found to be in violation

of SMCRA.‘ Jurisdiction for the case was founded on’

*SOCM and CSM are referred to collectively as SOCM when

discussing the earlier proceedings in this case.

*SMCRA’s regulatory scheme imposes the following manda-

tory duties:

(1) When the Office of Surface Mining Reclamation and

Enforcement (‘‘OSM’’) has reason to believe that a surface

coal mine operator is actifg in violation of the Act, e.9.,

operating without a permit, OSM must notify the state

regulatory authority, if one exists. 30 U.S.C. § 1271(a\1)

(1988).

(2) If none exists or the state authority fails to act, OSM

section 520(a\2) of the Act, the citizen suit provision

of SMCRA, 30 U.S.C. § 1270(a\(2), as well as on 28

U.S.C. §§ 1331, 1837, 1361, 2201, and 2202 (1988)

(federal question, commerce regulation, mandamus,

and declaratory judgment provisions).

The Secretary filed a motion to dismiss the com-

plaint on the ground, inter alia, that section 520(c)(1)

of SMCRA, 30 U.S.C. § 1270(c)(1), required that the

case be brought only in a district in which a surface

coal mining operation complained of is located and no

such mining operations exist in the District of Co-

lumbia. On September 30, 1982, the district court

denied the Secretary’s motion to dismiss, holding that

section 520(cX1) is not jurisdictional, but rather is a

must conduct an inspection. /d.

(3) If a violation is confirmed, OSM must issue a notice

prescribing a reasonable time to abate the violation. 30

U.S.C. § 1271(aX3) (1988).

(4) If the violation persists, OSM must order an immediate

cessation of operations. Jd.

(5) Once a cessation order is_issued, OSM must assess a

civil penalty against the mine of at least $750 per day for

up to 30 days. 30 U.S.C. § 1268(h) (1988); 30 C.F.R.

§ 723.15(b\2) (1992).

(6) If after 30 days the violation still persists, OSM must

take appropriate alternative enforcement action, which in-

cludes criminal prosecution, proceedings to hold corporate

officers or agents personally liable for civil penalties, pro-

ceedings to suspend or revoke an operator’s permit, and

proceedings to obtain injunctive relief. See 30 U.S.C.

§ 1268(e), (f) (1988); 30 U.S.C. § 1271(aX4), (c) (1988).

(7) OSM must withhold the grant of a permit to any ap-

plicant who owns or controls a surface coal mine that is

operating in violation of the Act. 30 U.S.C. § 1260(c) (1988).

waivable venue provision designed for the convenience

of the litigants. App. at 34a-35a. The district court

explained that SOCM was ‘“‘challeng{ing] a purported

national policy under the Act, not 700 individual de-

cisions involving particular coal mining operations,”’

App. at 35a, and that, as such, “‘the facts of each

violative operation are not relevant.’’ App. at 36a,

n.1. Because SOCM was challenging a nationwide pol-

icy of the Secretary, rather than specific site viola-

tions, the district court determined that the case was

properly brought in the District of Columbia pursuant

to the general venue statute, 28 U.S.C. § 1391(b)

(1988), as the place where the claim arose. App. at

36a.

On December 29, 1982, the district court denied

reconsideration, App. at 42a-45a, and the Secretary

then appealed the decision. The court of appeals re-

versed the district court, holding that section 520(c)(1)

governs citizen suits brought pursuant to section

520(aX(2) and, therefore, SOCM’s lawsuit could not be

maintained in the District of Columbia where no sur-

face coal mines are located. App. at 52a.

On April 2, 1984, the court of appeals granted re-

hearing en banc and sua sponte vacated the panel’s

decision. Prior to the rehearing, on November 6, 1984,

at the request of the parties, the court of appeals en

banc remanded the case to the district court for pro-

ceedings consistent with the settlement reached by

the parties. On January 31, 1985, the district court

entered the parties’ settlement agreement as a con-

sent order. SOCM v. Clark, 22 Env’t Rep. Cas. (BNA)

1217. The consent order required the Secretary, inter

alia, to implement the Applicant/Violator System

(“AVS”), a nationwide computer enforcement system

used to check permit applicants and permit holders

for unabated violations and unpaid civil penalties. The

consent order also required that the Secretary deny

or rescind a permit (and to instruct state regulatory

authorities to do likewise) if a permit applicant or

permit holder were found to be linked to an unabated

violation or unpaid civil penalty, pending an accept-

able abatement plan or payment schedule. The con-

sent order was to terminate on January 31, 1990,

unless the district court found the Secretary to be in

substantial, systemic non-compliance with its terms.

In April 1989, SOCM moved the district court for

an order finding the Secretary in substantial, systemic

non-compliance with the consent order and holding

the Secretary in contempt. The parties once again

pursued settlement and in January 1990 asked the

district court to approve their second settlement

agreement (‘‘the 1990 Settlement Agreement’’). The

1990 Settlement Agreement was designed to enhance

the AVS and to improve the Secretary’s performance

in detecting and remedying violations of SMCRA.

In December 1989, on the eve of the 1990 Settle-

ment Agreement between SOCM and the Secretary,

the National Coal Association and the American Min-

ing Congress (collectively ““NCA/AMC’’) for the first

time sought to intervene in the action and were

granted limited intervention solely for the purpose of

addressing the provisions of the 1990 Settlement

Agreement which NCA/AMC believed were not in ac-

cordance with SMCRA and its implementing regula-

tions. On September 5, 1990, after briefing and over

the objections of NCA/AMC, the district court ap-

proved the 1990 Settlement Agreement as “lawful

and reasonable.’’ App. at 24a.

NCA/AMC appealed the approval of the 1990 Set:

tlement Agreement arguing, inter alia, that due to

section 520(c1) the district court lacked jurisdiction

over the case. In response to a motion by NCA/AMC

in the court of appeals to vacate the September 5,

1990 approval order for lack of jurisdiction, the Sec-

retary took the position that jurisdiction had been

proper in the district court. In his brief on the merits,

however, the Secretary reversed himself and joined

NCA/AMC in arguing that the September 5, 1990

order approving the 1990 Settlement Agreement

should be vacated for lack of jurisdiction.

SOCM opposed NCA/AMC’s motion to vacate, ar-

guing that Congress did not intend for section

520(cK1) to apply to suits brought against the Sec-

retary under section 520(a(2) for “failure ... to per-

form any act or duty ... which is not discretionary.’

30 U.S.C. § 1270(a(2). Rather, section 520(cX1) ap-

plies only to suits brought under section 520(a{1), 30

U.S.C. § 1270(ay1) (1988), against anyone “alleged to

be in violation of the’ Act.° On May 22, 1992, the

court of appeals entered its decision holding that, al-

though the statutory construction question- is “‘close,”’

* For example, section 520(cy1) reads “[A|ny action respecting

a molation of this chapter or the regulations thereunder may

be brought only in...) 380 U.S.C. § 1270(c1) (emphasis added)

This language plainly refers to section (afl) suits respecting

violations at particular mines. If Congress had intended section

520icK1) to apply to suits brought under section 520(ay2) a

well, section 520(cW1) would read: “[AJny action under this sec

tion may be brought only in ...."’ Moreover, the phrase ‘“‘the

surface coal mining operation complained of” in section 520(c)1),

30 U.S.C. § 1270(cW1) (emphasis added), has no application in

the context of a nationwide policy not to perform a mandator,

duty.

section 520(c\1) is a special nonwaivable forum rule

that applies to citizen suits brought under section

520(a(2). App. at 2la. The court vacated the Sep-

tember 5, 1990 order approving the 1990 Settlement

Agreement and remanded the case to the district

court for entry of an order dismissing the case with-

out prejudice. App. at 22a. SOCM filed a petition for

rehearing and suggestion for rehearing en banc, which

were denied on August 18, 1992. App. at 54a.

REASONS FOR GRANTING THE PETITION

This case merits review because the District of Co-

lumbia Circuit’s decision destroys nationwide pattern

and practice suits that have been routinely approved

and resolved by the federal courts for years. As a

consequence, when applied to citizen suits under

SMCRA and other major federal environmental stat-

utes, this decision will result in a massive waste of

judicial resources and will severely overburden the

federal courts in a manner Congress did not intend

in enacting the citizen suit provision. If the circuit

court decision is allowed to stand, the same case al-

leging nationwide noncompliance with mandatory du-

ties and raising only legal issues will have to be

brought piecemeal—not just in every state, but in

every federal district, in which a surface coal mine

operation is located. Thus, what was once one lawsuit

will become a multitude of duplicative lawsuits across

the country, all raising the same issues and requesting

the same relief, with each one consuming scarce ju-

dicial resources. But that is not the end. When the

other major environmental statutes are taken into ac-

count, the decision will result in a disastrous number

of lawsuits across the nation, causing an incredible

and unnecessary waste of judicial resources.

Furthermore, this case involves one of the principal

remedial statutes enacted by Congress to restore and

preserve our nation’s environment. Its importance

cannot be minimized. For these reasons, it is imper-

ative that the Supreme Court grant this petition for

certiorari to review the decision of the Court of

Appeals for the District of Columbia Circuit in this

case.

THE COURT OF APPEALS’ DECISION HAS THE

EFFECT OF ABOLISHING PATTERN

AND PRACTICE SUITS.

This case concerns section 520(a\(2) of SMCRA, the

citizen suit provision providing for actions against the

Secretary for failure to perform a mandatory act or

duty under the Act. Congress has included citizen suit

provisions in numerous statutes, including all the ma-

jor environmental statutes, for the express purpose

of encouraging citizens to act as private attorneys

general to compel the persons charged with enforcing

the statutes to comply with their mandatory statutory

duties. As Congress stated with regard to SMCRA:

(P]roviding citizens access to ... the courts is a

practical and legitimate method of assuring the

regulatory authority’s compliance with the re-

quirements of the act.

H.R. Rep. No. 218, 95th Cong., lst Sess. 88-89 (1977).

For years, the federal courts have recognized the

intent of Congress in these citizen suit provisions to

provide for nationwide pattern and practice lawsuits

when there is a systemic, wholesale enforcement fail-

ure under one of these remedial statutes. See, e.g.,

American Lung Ass'n v. Reilly, 962 F.2d 258 (2d Cir.

1992) (Clean Air Act citizen suit brought to compel

Environmental Protection Agency Administrator to

perform nondiscretionary duty concerning national

ambient air quality standards for ozone); Alaska Ctr.

for the Env’t v. Reilly, 762 F. Supp. 1422 (W.D. Wash.

1991) (Clean Water Act citizen suit brought to compel

Environmental Protection Agency Administrator to

perform mandatory acts to promulgate water pollu-

tion limits); Environmental Defense Fund, Inc. v.

Thomas, 870 F.2d 892 (2d Cir.) (Clean Air Act citizen

suit brought to eompel Environmental Protection

Agency Administrator to take formal action regarding

national ambient air quality standards for sulphur ox-

ides), cert. denied, 493 U.S. 991 (1989); National Black

Police Ass’n v. Velde, 712 F.2d 569 (D.C. Cir. 1983)

(challenge to Law Enforcement Assistance Adminis-

tration’s policy of nonenforcement of Title VI of the

Civil Rights Act), cert. denied, 466 U.S. 963 (1984);

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

(D.C. Cir. 1982) (Clean Water Act citizen suit brought

to compel Environmental Protection Agency Admin-

istrator to perform mandatory duty to enforce act

with regard to hundreds of dams throughout the coun-

try); United States v. Federal Communications

Comm’n, 652 F.2d 72 (D.C. Cir. 1980) (challenge to

failure of Federal Communications Commission to en-

force the Clayton Act); Environmeni‘al Defense Fund,

Inc. v. Costle, 686 F.2d 1229 (D.C. Cir. 1980) (Clean

Water Act citizen suit based on failure to implement

several provisions of the act); Natural Resources De-

fense Couneil, Inc. v. Train, 510 F.2d 692 (D.C. Cir.

1975) (Clean Water Aci citizen suit trought to compel

Environmental Protection Agency Administrator to

publish guidelines on effluent limitations).

Unquestionably, a major feature of these cases is

that a single lawsuit is initiated in one venue to com-

pel a regulatory authority to perform its mandatory

duty in all venues covered by the statute; 2.e., na-

tionwide. As this Court expressly recognized in Lujan

v. National Wildlife Fed’n, 110 S. Ct. 3177, 3191

(1990), Congress can provide for ‘“‘correction of the

administrative process at a higher level of generality”

than site specific adjudication where common ques-

tions of law are presented. By enacting section

520(aX2) of SMCRA, Congress chose to allow “‘cor-

rection of the administrative process’’ whenever the

Secretary failed to perform a mandatory duty im-

posed by SMCRA. The District of Columbia Circuit

also recognized this principle in Women’s Equity Ac-

tion League v. Cavazos, 906 F.2d 742, 752 (D.C. Cir.

1990), stating that when Congress provides a “‘green

light,’’ affected citizens may bring non-site specific,

programmatic challenges. The Circuit cited as ex-

amples of such a ‘‘green light” the mandatory duty/

citizen suit provisions of the Clean Air Act, 42 U.S.C.

§ 7604 (1988),®° and the Federal Water Pollution Con-

* Section 304 of the Clean Air Act, 42 U.S.C. § 7604, provides

in relevant part:

(a) ... any person may commence a civil action on his own

behalf—

(1) against any person ... who is alleged to be in vio-

lation of (A) an emission standard or limitation under

this chapter or (B) an order issued by the Admin-

istrator or a State with respect to such a standard

or limitation,

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or

duty under this chapter which is not discretionary

trol Act

(“Clean Water Act’), 33 U.S.C. § 1865

(1988),’ which are virtually identical to the mandatory

duty/citizen suit provision of SMCRA, 30 U.S.C.

§ 1270." Women’s Equity Action League v. Cavazos,

742 F.2d at 752, n.15.

(cX1)

with the Administrator ....

Any action respecting a violation by a_ stationary

source of an emission standard or limitation or an

order respecting such standard or limitation may be

brought only in the judicial district in which such

source is located.

* Section 505 of the Clean Water Act, 33 U.S.C. § 1365, pro-

vides in relevant part:

(a) ..

. any citizen may commence a civil action on his own

behalf—

(1)

(2)

(c1)

against any person ... who is alleged to be in vio-

lation of (A) an effluent standard or limitation under

this chapter or (B) an order issued by the Admin-

istrator or a State with respect to such a standard

or limitation, or

against the Administrator where there is alleged a

failure of the Administrator to perform any act or

duty under this chapter which is not discretionary

with the Administrator.

Any action respecting a violation by a discharge

source of an effluent standard or limitation or an

order respecting such standard or limitation may be

brought under this section only in the judicial district

in which such source is located.

* Section 520 of SMCRA, 30 U.S.C. § 1270, provides in rele-

vant part:

(a) .

. any person having an interest which is or may be

The court of appeals’ decision here has effectively

eliminated the section 520(a)(2) pattern and practice

cause of action by requiring that such a case be

brought in every judicial district where a mine is lo-

cated, even though no site-specific facts are involved

and the same legal issue is presented.’ This is a result

Congress did not intend in enacting the citizen suit

provision in SMCRA, the Clean Air Act, the Clean

Water Act, or any other of the nation’s environmental

Statutes,

and warrants review by this Court.

adversely affected may commence a civil action on his

own behalf to compel compliance with this Act—

(1)

(2)

(cl)

against [any person who] ... is alleged to be in vi-

olation of the provisions of this Act or of any rule,

regulation, 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 is-

sued pursuant to this title; or

against the Secretary or the appropriate State reg-

ulatory authority to the extent permitted by the elev-

enth 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 regula-

tory authority.

Any action respecting a violation of this chapter or

the regulations thereunder may be brought only in

the judicial district in which the surface coal mining

operation complained of is located.

%In short, the court of appeals has construed the section

520(c\1) ‘‘venue”’ provision to be a substantive limitation on the

scope of mandatory duty suits.

Il.

THE CIRCUIT COURT DECISION WILL IMPOSE AN

INCREDIBLE BURDEN ON THE FEDERAL COURTS

AND RESULT IN A SIGNIFICANT WASTE OF SCARCE

JUDICIAL. RESOURCES.

The court of appeals held in this case that section

520(c\1) of SMCRA, which provides that certain ac-

tions be brought in the judicial district where the

surface coal mining operation complained of is _ lo-

cated, applies to citizen suits brought pursuant to sec-

tion 520(a\(2) of the Act, t.e., suits against the

Secretary for failure to perform a mandatory act or

duty under the Act. App. at 2la. The result of this

decision is that this one lawsuit challenging the Sec-

retary’s failure to perform his mandatory enforcement

duties throughout the country will need to be brought

piecemeal—in each judicial district throughout the na-

tion where surface coal mining operations are located,

each suit raising the same issue and seeking the same

relief. The already overburdened federal courts will

become more overburdened with these numerous iden-

tical lawsuits that could (and should) be resolved in

a single action.

This litigation has been ongoing for almost twelve

years. It has already occupied considerable court time

and absorbed substantial judicial resources. It has been

very time-consuming and expensive. With the ap-

proval of the 1990 Settlement Agreement, however,

there was an end in sight to the litigation, and the

prospect of nationwide enforcement of SMCRA be-

came a real possibility. Now, however, as a conse-

quence of the court of appeals’ decision, the

expenditure of time and resources to this point may

prove fruitless and the substantial judicial resources

used for this lawsuit will be multiplied many-fold in

order to secure the Secretary’s enforcement of

SMCRA throughout the country. Thus, if allowed to

stand, the court of appeals’ decision will result in a

massive waste of judicial resources and will severely

and unnecessarily tax the nation’s already overbur-

dened federal courts.

Furthermore, this decision has precedential effect,

not only on citizen suits under SMCRA, but also on

citizen suits under other major environmental stat-

utes. For example, as discussed above, the citizen suit

and venue provisions of the Clean Air Act and the

Clean Water Act are substantially the same as the

citizen suit and venue provisions of SMCRA. The cit-

izen suit provisions of these statutes have provided

the basis for pattern and practice suits in the past.

See, e.g., American Lung Ass'n v. Reilly, 962 F.2d

258 (Clean Air Act citizen suit); Alaska Ctr. for the

Env’t v. Reilly, 762 F. Supp. 1422 (Clean Water Act

citizen suit). Using the court of appeals’ decision as

precedent, however, future decisions in cases under

the Clean Air Act and the Clean Water Act could

eliminate single venue mandatory duty suits under

those statutes as well.” Such a result would expo-

0The court of appeals incorrectly concluded that Congress

intended the venue provisions in the Clean Air Act and the

Clean Water Act to be limited to suits under subsection (a1)

of the citizen suit provisions while finding the venue provision

in SMCRA to apply to both subsection (aX1) and subsection (aX2)

actions. App. at 19a. The court reached this conclusion by seizing

on the different language in SMCRA concerning the type of

violation addressed by the venue provision. The Clean Air Act

venue provision addresses violations “‘by a stationary source of

an emission standard or limitation.’’ 42 U.S.C. § 7604(c\1). The

nentially increase the number of duplicative lawsuits

brought to compel regulatory authorities to perform

mandatory duties. This would result in still more

wasted judicial resources than already caused by the

present decision and would cause an even greater

burden on the federal courts.

The end result of this elimination of pattern and

practice suits could well be a critical overload of the

federal court system. The need to prevent such a

drastic result presents a compelling reason for this

Court to review the decision of the court of appeals

in this case.

Ill.

THIS CASE IS IMPORTANT TO THE

ENVIRONMENTAL WELFARE OF THIS COUNTRY.

The significance of this case to the public interest

in restoring the environment of this country is man-

Clean Water Act venue provision addresses violations by ‘‘a

discharge source of an effluent standard or limitation.”’ 33 U.S.C.

§ 1365(c1). The SMCRA venue provision addresses violations

of the Act. 30 U.S.C. § 1270(c\1).

The reason for the differing language in SMCRA is not as

the court of appeals found—an intent by Congress to expand

the scope of the venue provision; rather, it reflects the differing

types of violations addressed by subsection (aX1) actions in the

three statutes. Violations of both the Clean Air Act and the

Clean Water Act involve effluent limitations and standards. The

venue provisions in those statutes are, therefore, written to ad-

dress these violations. In contrast, SMCRA involves many dif-

fering kinds of violations, e.g., revegetation, backfilling and

grading, effluent limitations, post-mining land use, and thus, the

language of the venue provision differs in order to ensure that

all violations of the Act would be subject to subsection (a\1)

actions.

ifest. SMCRA was enacted over fifteen years ago.

During that time, surface coal mines have continued

to be left unreclaimed, without consequence to those

responsible, because of the Secretary’s policy of non-

enforcement. Citizens have continued to live with the

pernicious effects of unreclaimed mine sites, such as

flooding, landslides and polluted streams, that SMCRA

was intended to eliminate.

Congress has expressly recognized the importance

of this litigation. In a continuing showing of its sup-

port, Congress has appropriated over $20 million to

fund implementation of the 1985 consent decree and

the 1990 Settlement Agreement. App. at 9a, n.5. This

level of funding by Congress demonstrates the sig-

nificance of the results achieved by SOCM and, as

the court of appeals recognized, ‘‘the legislature’s ap-

proval of the AVS project.” App. at 17a."

To allow the court of appeals’ decision to stand

unreviewed dooms the chances that SMCRA will be

enforced, resulting in the waste of millions of tax-

payer dollars, all to the detriment of the public. The

public interest in the environmental welfare of this

country thus mandates review by this Court before

the numerous consequences of the lower court’s de-

cision are allowed to occur.

CONCLUSION

The only judicially efficient way to ensure the Sec-

retary’s nationwide enforcement of SMCRA is to have

11 Even the Department charged with failing to enforce the

Act has acknowledged the benefits to be achieved by this case.

For example, Manuel] Lujan publicly stated that the 1990 Set-

tlement Agreement ‘‘strengthens enforcement of the surface

mining law.’ Department of the Interior News Release dated

January 24, 1990.

one lawsuit challenging the Secretary’s nationwide

policy of nonenforcement. The court of appeals’ de-

cision forces SOCM to bring an untold number of

separate lawsuits throughout the country to accom-

plish the same goal. This is a massive waste of judicial

resources and a reversal of years of decisional law in

this country. For these reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

JUDITH A. MATHER

Counsel of Record

ROBIN H. SANGSTON

KAREN A. POST

Dow, LOHNES & ALBERTSON

1255 Twenty-third Street, N.W

Washington, D.C. 20037

(202) 857-2500

L. THOMAS GALLOWAY

GALLOWAY & ASSOCIATES

1835 K Street, Suite 803

Washington, D.C. 20006

202) 8383-9084

Attorneys for Petitioner

Save Our Cumberland

Mountains, Inc.

November 16, 1992

APPENDIX

‘

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 1992 Decided May 22, 1992

No. 90-5374

SAVE Our CUMBERLAND Mountamns, INc., ET AL.,

PLAINTIFFS-APPELLEES,

MANUEL LusaNn, SECRETARY OF THE INTERIOR, ET AL.,

DEFENDANTS-APPELLEES,

and

NATIONAL Coa ASSOCIATION AND AMERICAN MINING

CONGRESS,

INTERVENORS-APPELLANTS.

Appeal from the United States District Court

for the District of Columbia

(C.A. No. 81-2134)

Thomas C. Means, with whom John A. MacLeod and J.

Michael Klise for National Coal Association, and Edward

M. Green and Stuart A. Sanderson for American Mining

Congress were on the joint brief, for appellants.

John T. Stahr, Attorney, Department of Justice, with

whom Barry M. Hartman, Acting Assistant Attorney Gen-

eral, Robert L. Klarquist, and Alfred T. Ghiorzi,

Attorneys, Department of Justice, were on the brief, for

Federal appellees.

L. Thomas Galloway, with whom Judith A. Mather and

Robin H. Sangston were on the brief, for appellees, Save

Our Cumberland Mountains, Inc., et al.

Before RutH B. Ginsspurc, BuckLiey and D.H. Ginssurc,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rutu B.

GINSBURG.

Ginssurc, RuTtuH B., Circuit Judge: This case concerns

the proper forum for “citizen suits” under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA or

the Act), 30 U.S.C. §§ 1201 et seg. Section 520 of the Act

authorizes “any person having an interest which is or may

be adversely affected” to commence a civil action to com-

pel compliance with the Act or “any rule, regulation, order

or permit” thereunder. 30 U.S.C. § 127Qa). This “citizen

suit” prescription describes two categories of civil actions:

(1) complaints against the United States or other govern-

mental instrumentality for violation of the Act or any

rule, regulation, order or permit issued pursuant thereto,

or against any other person for violating a SMCRA-

implementing rule, regulation, order or permit, SMCRA

§ 520(aX(1), 30 U.S.C. § 1270(a)(1);' (2) complaints against

‘Congress did not want mine operators who complied with all

regulations, orders, and permits to be subject to suit where the

Secretary, in permitting the operation, failed properly to imple-

ment the Act. Congress therefore limited actions against private

operators to instances of violation of a “rule, regulation, order or

permit.” A government agency or instrumentality, however, is

both regulator and, as mine operator, regulatee, and hence may

be sued under SMCRA § 520(aX1), 30 U.S.C. § 1270(aX1), “when

the Secretary or “the appropriate State regulatory

authority” for “failure .. . to perform any act or duty

under ([SMCRA] which is not discretionary with the

(regulator].” SMCRA § 520(aX2), 30 U.S.C. § 127 aX 2).

On the forum for “citizen suits,” SMCRA § 520(cX1) pro-

vides:

Any action respecting a violation of this chapter or

the regulations thereunder may be brought only in

the judicial district in which the surface coal mining

operation complained of is located.

30 U.S.C. § 1270(cX1).

The second category of citizen civil action is at issue

here. Plaintiff Save Our Cumberland Mountains, Inc.

(SOCM)? commenced this suit pursuant to SMCRA

§ 520(aX2) against the Secretary of the Interior and the

Director of the Office of Surface Mining Reclamation and

Enforcement (OSM) to check the government’s alleged

failure, nationwide, effectively to enforce the Act. SOCM

sought an order, nationwide in scope, compelling the Sec-

retary and OSM (collectively, the Secretary) to assess and

collect civil penalties against cited violators and to take

alternative enforcement action against operators who fail,

despite notice and penalties, to abate their violations.

SOCM chose the U.S. District Court for the District of

Columbia as the forum for its citizen suit. Concededly, no

“surface coal mining operation . . . is located” in this judi-

it is the operator of a coal mine and is not in compliance with

the Act.” Oklahoma Wildlife Fed’n v. Hodel, 642 F. Supp. 569,

571-72 (N.D. Okla. 1986) (summarizing legislative history

accounting for Congress’ subjecting government operators, but not

private operators, to suit for operations out of compliance with the

Act).

As described in SOCM’s certificate as to parties, SOCM “is a

non-profit organization whose membership is comprised of resi-

dents of the Appalachian area who are vitally concerned about

and affected by the proper regulation of surface mining.” Council

of the Southern Mountains, Inc., originally a co-plaintiff, is no

longer in existence.

cial district. See SMCRA §620cX1), 30 U.S.C.

§ 1270(cX1). SOCM maintains, however, that the special

forum rule contained in SMCRA’s citizen suit provision

governs only suits directed primarily against mine opera-

tors, ie., violators of the regulatory prescriptions, civil

actions of the kind delineated in SMCRA § 520(a)(1). Suits

against the official enforcers for failure to enforce, Le.,

complaints of inaction by the Secretary or “the appropri-

ate State regulatory authority,” suits of the kind delin-

eated in SMCRA §620aX2), SOCM argues, are not

subject to the forum rule of SMCRA § 520(c\1). Instead,

according to SOCM, suits against the regulators to compe!

enforcement may be brought in the district where those

regulators reside, in this case, in the nation’s capital. See

28 U.S.C. §1391(b), (e). Alternately, SOCM argues that

the forum rule stated in SMCRA § 52Q(cX1) is waivable,

and that the Secretary in fact waived the limitation.

Recognizing that the statutory construction question is

close, we hold that the special forum rule contained in

SMCRA § 520(c1), 30 U.S.C. § 1270cX1), controls all citi-

zen suits described in SMCRA §52Qa), 30 U.S.C.

§ 1270(a), and is not confined to suits directed primarily

against mine operators. We further hold that the rule is

not waivable. Our conclusions are consistent with prece-

dent binding in this circuit, New Mexico ex rel. Energy

and Minerals Dep't v. U.S. Dep’t of Interior, 820 F.2d 441

(D.C. Cir. 1987), and with this fundamental consideration:

courts customarily adjudicate episode- or area-specific

controversies; federal judges, applying federal legislation,

generally adhere to that mode of adjudication absent clear

instruction from Congress — as in the case of review of

rulemakings setting nationwide standards — that more

encompassing action has been committed to the judges’

charge.

I. Background

A. SMCRA'’s Regulatory Regime

SMCRA “establish[es) a nationwide program to protect

society and the environment from the adverse effects of

surface coal mining operations.” 30 U.S.C. § 1202(a).

OSM, an office within the Department of the Interior,

administers and enforces the Act. 30 U.S.C. §1211(c). A

state, by developing a SMCRA-implementation plan

approved by the Secretary, may assume jurisdiction over

non-federal surface coal mining operations within its bor-

ders. 30 U.S.C. § 1253. Indeed, Congress anticipated that

primary responsibility for the regulation of surface mining

would “rest with the States.” 30 U.S.C. § 1201(f. A

federally-designed program governs in states that have

not put in place an acceptable implementation plan of

their own. 30 U.S.C. §§ 1254(a), (b), 1271(b).3

SMCRA prohibits the operation of a surface mine with-

out a permit. 30 U.S.C. § 1256. The Act instructs OSM to

notify the state regulatory authority, in states that have

one, when OSM has reason to believe that an operator is

in violation of SMCRA or a permit. If no state authority

exists, or the state fails to act, OSM must proceed with

an inspection. When a violation is confirmed, OSM “shall

issue” a notice prescribing a reasonable time (not exceed-

ing 90 days) for abatement of the violation. To check vio-

lations that persist despite the notice to abate, the statute

directs OSM to order an immediate cessation of opera-

tions. 30 U.S.C. § 1271(aX1), (3).

Once a cessation order issues, OSM must assess a civil

penalty against the mine of at least $750 per day. 30

U.S.C. § 1268(h). OSM regulations limit such penalties to

& period of 30 days. 30 C.F.R. § 723.15(b)(2). If the viola-

tion has not been abated by then, OSM “shall take appro-

priate [alternative enforcement] action”: appropriate

measures include criminal prosecution, proceedings to

hold corporate officers or agents personally liable for civil

penalties, proceedings to suspend or revoke an operator’s

permit, and proceedings to obtain injunctive relief. See 30

U.S.C. §§ 1268(e) & (f, 1271(aX4) & (c).

*The Code of Federal Regulations indicates that 24 states have

state regulatory programs and 1] states have federally-

implemented programs. See 30 CFR Ch. VII, subchapter T.

A permit applicant must submit with the application a

list of all SMCRA violation notices, indicating the final

resolution of each notice. 30 U.S.C. § 1260(c). If any sur-

face mine “owned or controlled by the applicant” has an

unabated violation, the Act instructs OSM not to issue a

permit until the applicant proves that the violation has

been or is being corrected. Id.

B. The History of this Litigation

SOCM commenced this action in 1981 charging the Sec-

retary with large-scale failure, throughout the nation, to

enforee SMCRA. SOCM alleged that in over 700

instances, the Secretary had not followed up notices of

violation with the imposition of mandatory penalties. The

complaint further asserted that the Secretary had allowed

hundreds of violators to continue operations, with viola-

tions unchecked, after expiration of the 30-day penalty

period. Seeking court-ordered compliance by the Secretary

with the Act’s enforcement commands, SOCM alleged

jurisdiction under SMCRA §52QaX2), 30 U.S.C.

§ 1270(aX2) (authorizing citizen suit against Secretary for

failure to perform nondiscretionary duties), as well as 28

U.S.C. §§ 1331, 1337, 13861, 2201 and 2202 (federal ques-

tion, commerce regulation, mandamus, declaratory judg-

ment provisions).

The Secretary moved to dismiss on the ground, inter

alia, that SMCRA § 520(c\1), 30 U.S.C. §1270(cX1),

allowed suit “only in the judicial district in which the sur-

face coal mining operation complained of is located.” The

Secretary maintained that section 520(cX1) constituted a

jurisdictional limitation. The district court denied the

motion, concluding that section 520(cX1) was not jurisdic-

tional in character but was merely a venue provision, one

designed to serve the convenience of litigants; emphasiz-

ing that SOCM “challenge[d] a purported national policy,”

the district court held applicable “the general venue stat-

ute, 28 U.S.C. § 1391(b), which provides venue within [the

District of Columbia] as the place where the claim

[against the Secretary] arose.” Save Our Cumberland

= — ee

Mountains, Inc. v. Watt, 550 F. Supp. 979, 980-81 (D.D.C.

1982).

rial fact genuinely in dispute, the court pronounced

summary judgment for SOCM. Id. at 983. Following the

entry of an order granting injunctive relief, the Secretary

appealed.

Around the same time, in another case in which SOCM

was a plaintiff, a different judge of the district court

reached an apparently conflicting conclusion on the appli-

cation and exclusivity of section 520(c) in citizen guits

under section 520(a)(2); the complaint in that case chal-

lenged the Secretary’s implementation of a provision of

the Act, SMCRA § 528(2), 30 U.S.C. § 1278(2), exempting

“the extraction of coal for commervial purposes where the

Our Cumberland Mountains, Inc. v. Watt, 558 F. Supp. 22

(D.D.C. 1982) (Two-acres case). Two-acres involved three

claims. Two were of the “citizen suit” genre: brought

under section 520(aX2), they challenged the Secretary’s

section 520(cX1), dismissed the first two claims as improp-

erly brought in the District of Columbia; it dismissed the

third, although properly brought in the District, as moot.

The plaintiffs’ appeal from the judgment dismissing the

complaint in the Two-acres case was consolidated for oral

argument with the Secretary’s appeal in this case. The

panel, on the same day, in two separate but closely coordi-

nated opinions, aisrmed the judgment dismissing the

complaint in the Two-acres case, and reversed the judg-

ment against the Secretary in this case. Save Our Cum-

berland Mountains, Inc. v. Clark, 725 F.2d 1422 (Two-

acres case), 1434 (instant case) (D.C. Cir. 1984). The

appellate panel concluded that section 520(cX1) governed

all citizen suits under section 52Q(a) and therefore pre-

cluded suit in the District of Columbia, a district in which

“[none of] the surface coal mining operation[s] complained

of is located.”

The court, en banc, voted to rehear the two appeals.

Pending en banc review, the full court, in April 2, 1984

orders, vacated the panel judgments and opinions in both

cases. A comprehensive settlement of this case, however,

intercepted the scheduled en banc consideration. In line

with the parties’ request, on November 6, 1984, the full

court remanded both cases to the district court for pro-

ceedings consistent with the settlement negotiations.

On January 31, 1985, the district court entered a con-

sent order in the instant case setting out the terms of the

parties’ agreement. Save Our Cumberland Mountains,

Inc. v. Clark, 22 Env’'t Rep. Cas. (BNA) 1217 (D.D.C. 1985).‘

The order provided, inter alia, that OSM would imple-

ment the permit blocking prescription of 30 U.S.C.

§ 1260(c) by establishing a computerized system capable

of effectively checking permit applicants for prior viola-

tions. The system, now known as the Applicant/Violator

System (AVS), would match applicants and permit hold-

ers against entities and persons answerable for unabated

violations and unpaid civil penalties. OSM would call

upon state regulatory authorities to deny or withdraw

permits, or do so itself, pending effectuation of an abate-

ment plan or payment schedule that met the regulator's

approval. The consent order was to terminate on January

31, 1990 unless, in the interim, the court found the Secre-

tary in “substantial, systematic non-compliance.”

“The Two-acres case was settled separately. See Save Our Cum-

berland Mountains, Inc. v. Hodel, 622 F. Supp. 1160, 1163

(D.D.C. 1985).

In April 1989, SOCM moved for an order finding the

Secretary in substantial non-compliance. The parties once

again pursued settlement and, in January 1990, asked the

district court to approve their second agreement, termi-

nate the consent order enforcing the first agreement, and

dismiss the action with prejudice. The 1990 agreement

contains various provisions designed to enhance the AVS

system and to improve OSM’s performance in detecting

and remedying SMCRA violations.5

In December 1989, just as the parties neared the final

text of their second agreement, mining industry trade

associations National Coal Association and American Min-

ing Congress (collectively, NCA) moved to intervene to

oppose court approval of the settlement. NCA urged that

the district court, by reason of section 520(cX1), had no

authority to entertain the case, and that the proposed set-

tlement was unlawful in numerous respects. The district

court limited NCA’s intervention “to advis{ing] the court

of any aspect of the settlement agreement .. . which is

not in accordance with SMCRA and the regulations

the Secretary and the states to comply with the agreements. The

latest of these is Department of the Interior and Related Agencies

Appropriations Act, 1991, H.R. Conr. Rep. No. 971, on H. Res.

5769, 101st Cong., 2d Sess. (1990) (funding for states to imple-

entering the fray because, as represented by appellate counsel, its

interests were not affected by the litigation until late 1988 and

Brief of Appellants Nationa! Coal Association and American Min-

ing Congress at 5 n.1. NCA is currently no sidelines sitter. It has

filed actions under section 526(aX1), 30 U.S.C. § 1276(aX1), con-

testing the rules to which it objects. The “rules cases” have been

consolidated under the caption National Wildlife Fed’n v. Lujan,

No. 88-3117 (D.D.C.), and are awaiting district court decision. In

addition to the “rules cases,” NCA has brought an independent

action, still pending in the district court, challenging the second

SOCM-Secretary settlement agreement.

10a

thereunder.” Ultimately, the district court approved the

settlement as “lawful and reasonable.” Memorandum,

C.A. No. 81-2134, at 3 (D.D.C. Sept. 5, 1990).

NCA appeals the district court’s approval of the second

settlement agreement, first arguing that the district court

lacked jurisdiction in light of section 520(c\1). NCA also

maintains that SOCM, an Appalachian-based organiza-

tion, lacks standing to bring this suit alleging nationwide

failure to enforce SMCRA. See Conservation Law Founda-

tion of New England v. Reilly, 950 F.2d 38 (1st Cir. 1991)

(regional environmental organization lacks standing to

seek nationwide injunctive relief in citizen suit under

Comprehensive Environmental Response, Compensation,

and Liability Act). On diverse statutory and constitutional

grounds, NCA attacks the second settlement agreement

as unlawful. The Secretary, reviving argument made

when the litigation was new, joins NCA in urging that

section 520(cX1) is a jurisdictional impediment to the dis-

trict court’s order confirming the settlement. On the mer-

its, the Secretary defends the agreement as lawful, fair,

and reasonable. We hold that section 520(cX1) precludes

locating a citizen suit in a district where no mining opera-

tions occur, and therefore do not reach the question of

SOCM’s standing or NCA’s objections to the substance of

the settlement agreement.

II. Analysis

A. The Language and Structure of SMCRA’s Citizen Suit

Provision

As earlier described, see supra pp. 2-3, SMCRA § 520

authorizes suits by citizens against both mine operators,

SMCRA § 620(aX1), 30 U.S.C. §127aX1), and official

enforcers, SMCRA § 52Q(aX2), 30 U.S.C. § 1270aX2).’ In

"Section 620a), 30 U.S.C. § 1270a), provides:

(a)... any 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 —

lla

this regard, section 520 markedly resembles counterpart

citizen suit provisions of the Federal Water Pollution Con-

trol Act (FWPCA), 33 U.S.C. § 1365,° and the Clean Air

Act, 42 U.S.C. § 7604.° All three Acts present first, in an

(1) against the United States or any other governmen-

tal 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, regulation, 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 regu-

latory 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 regula-

tory authority to perform any act or duty under this chap-

ter which is not discretionary with the Secretary or with

the appropriate State regulatory authority.

The district courts shall have jurisdiction, without regard to

the amount in controversy or the citizenship of the parties.

“Section 505(a) of the Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C. § 1365(a), provides in relevant

part:

(a)... any citizen may commence a civil action on his own

behalf —

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or agency

Constitution) who is alleged to be in violation of (A) an

effluent standard or limitation under this chapter or (B)

an order issued by the Administrator or a State with

respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

"Section 304(a) of the Clean Air Act Amendments of 1977, 42

U.S.C. § 7604(a), provides in relevant part:

“(aX1)” section, authorization for suits to check unlawful

operations or activities, and second, in an “(aX2)” section,

permission for suits to prompt effective law enforcement.

Each Act also contains a forum prescription, a “(cX1)”

section, but at this juncture, the provisions diverge.

FWPCA and the Clean Air Act contain “(cX1)” forum pre-

scriptions specifically linked to unlawful operations or

activities, i.e., to “(aX1)” suits. SMCRA’s citizen suit forum

rule, in contrast, is not similarly qualified. Thus, FWPCA

§ 505(c\1) addresses actions “respecting a violation by a

discharge source of an effluent standard or limitation.”’®

Clean Air Act § 304(c)(1), correspondingly, addresses

actions “respecting a violation by a stationary source of

an emission standard or limitation.”’’ SMCRA § 520(c)(1)

(a)... any person may commence a civil action on his own

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or agency

to the extent permitted by the Eleventh Amendment to

the Constitution) who is alleged to be in violation of (A)

an emission standard or limitation under this chapter or

(B) an order issued by the Administrator or a State with

respect to such a standard or limitation,

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

Administrator ....

lOFWPCA § 505(cX1), 33 U.S.C. § 1365(cX1), provides:

(cX1) Any action respecting a violation by a discharge source

of an effluent standard or limitation or an order respecting

such standard or limitation may be brought under this sec-

tion only in the judicial district in which such source is

located.

“Clean Air Act § 304(cX1), 42 U.S.C. § 7604(cX1), provides:

(cX1) Any action respecting a violation by a stationary source

of an emission standard or limitation or an order respecting

such standard or limitation may be brought only in the judi-

cial district in which such source is located.

employs broader language; it encompasses, simply, “[a)ny

action respecting a violation of this chapter.”"? In all three

Acts, converging again, the “(cX2)” prescriptions deal not

with the forum for a citizen suit, but with the regulator’s

right to intervene in such an action.”

In urging that the instant proceedings are properly

lodged in the District of Columbia, SOCM asks us to fol-

low the lead of courts that have grappled with forum-rule

issues in FWPCA and Clean Air Act citizen suits. Fasten-

ing on the close connection of the “(cX1)” provisions of

those Acts to “(aX1)” suits against polluters, courts have

allowed citizens to maintain “(aX2)” suits against regula-

tors (state or federal) in other places, i.e., those designated

by the general venue provisions of 28 U.S.C. § 1391. See

Citizens for a Better Environment v. Costle, 515 F. Supp.

264, 277 (N.D. Ill. 1981) (Clean Air Act citizen suit

against Environmental Protection Agency under 42 U.S.C.

§ 7604(aX 2) for failure to perform alleged mandatory duty;

proper forum is determined by 28 U.S.C. § 1391(e), not by

42 U.S.C. § 7604(c)(1)): Township of Long Beach v. City of

New York, 445 F. Supp. 1203, 1207-08 (D. N.J. 1978)

(“(cX1)” forum provision of FWPCA is applicable to “(aX1)”

actions agzin st polluters, but does not stop recourse to

Title 28 general venue provisions for “(a2)” suit against

Administrator for failure to perform alleged non-

discretionary duty). The generality of SMCRA § 520(cX1)’s

“SMCRA § 520cX1), 30 U.S.C. § 1270(cX1), provides:

(cX1) Any action respecting a violation of this chapter or the

regulations thereunder may be brought only in the judicial

district in which the surface coal mining operation com-

plained of is located.

'"SSMCRA § 52X(cX2), 30 U.S.C. § 1270(cX2), provides: “In (an)

action under this section, the Secretary, or the State regulatory

authority, if not a party, may intervene as a matter of right.”

FWPCA § 505(cX2), 33 U.S.C. § 1365(cX2), provides: “In (an)

U.S.C. § 7604(cX2), provides, in relevant part: “In any action

under this section, the Administrator, if not a party, may inter-

vene as a matter of right at any time in the proceeding ”

l4a

language, in contrast to the particularity of the “(cX1)”

provisions of FWPCA and the Clean Air Act, however,

causes us to resist that course.

We set out again in text the words of SMCRA

§ 520(cX1) because they are the prime basis for our deci-

sion:

Any action respecting a violation of this chapter or

the regulations thereunder may be brought only in

the judicial district in which the surface coal mining

operation complained of is located.

30 U.S.C. § 1270(cX1). The words “this chapter” refer to

the entire Act.‘ NCA, now joined by the Secretary, high-

lights the words “Any action,” “this chapter,” meaning

Act, and “only.” SOCM, on the other hand, stresses the

words “violation” and “the surface coal mining operation

complained of.” Those words, SOCM maintains, reveal an

intention to describe infractions by mining operators,

actions of the “(aX1)” variety, not complaints under

“(aX2)” that the Secretary has failed to perform required

duties.

A panel of this court in the Two-acres case, 725 F.2d

at 1427-29, see supra p. 8, considered and rejected

SOCM’s arguments extracted from the language Congress

used. We agree with and recapitulate the panel’s reason-

ing in Two-acres. The Two-acres opinion, we bear in mind,

was vacated in anticipation of this court’s en banc rehear-

ing. We look to that opinion, accordingly, for the sound-

ness of its reasoning and not as binding precedent. See

Christianson v. Colt Industries Operating Corp., 870 F.2d

1292, 1298 (7th Cir.) (although vacated, prior decision

“stands as the most comprehensive source of guidance

available on the . . . questions at issue in this case”), cert.

denied, 493 U.S. 822 (1989).

4As it appears in the Statutes at Large, the section reads: “Any

action respecting a violation of this Act ....” Surface Mining Con-

trol and Reclamation Act of 1977, Pub. L. No. 95-87, 91 Stat. 447,

503 (1977).

l5a

Preliminarily, we note, as did the Two-acres panel, 725

F.2d at 1427 n.14, that the language used by Congress is

neither clarified nor clouded by the legislative history of

the Act. Indeed, the legislative materials contain no dis-

cussion at all of SMCRA § 620(cX1)’s forum rule.'®

Turning to the word “violation,” it is true, and hardly

surprising, that the word appears several times in the Act

in reference to mine operations or mine operators. See,

€.g., 30 U.S.C. §§ 1260c), 1267(e), 1267(hX1). But it is

commonly understood that

& statute is violated when one transgresses its terms.

When the Secretary fails to perform a duty required

by the Act, he has transgressed the Act’s affirmative

mandate; that is, he has “violated” the Act. The Sec-

retarys functions and responsibilities [under

SMCRA] derive solely from the Act. The Secretary’s

alleged failure to perform these duties can thus only

be interpreted as a violation of the Act.

Two-Acres, 725 F.2d at 1427.

In a supplemental submission to this court, Letter dated

March 16, 1992, submitted pursuant to Fep. R. App. P. 28(j),

“{alny action respecting a violation of this Act,” S. 7, 95th Cong.,

(1977) (bill as passed by Senate) SOCM urges that, had Congress

meant (cX1) to apply to beth “(a1)” and “(aX2)” suits, the law

significance SOCM attributes to the change. See Drummond Coa!

Co. v. Watt, 735 F.2d 467, 474 (11th Cir. 1984 (“Unexplained

es made in committee are not reliable indicators of congres-

sional intent.”). We note, moreover, that throughout, Congress

retained in (cX1) the phrase “the surface coal mining operation

complained of,” which SOCM insists “makes no sense” in the con-

text of an “(aX2)” suit for failure to perform a mandatory duty.

See Brief of Appellee SOCM at 16-17.

l6a

Tellingly, SOCM’s complaint in this very action uses

the word “violation” in relation to the Secretary’s conduct

as regulator. Thus, paragraph 10 refers to “defendant's

violation of law, within the meaning of Section 520(b)(2)

of the Act, 30 U.S.C. § 1270(b\2).” Paragraph 19 asserts

that “[djefendants have failed . . . to collect penal-

ties ... in violation of . . . §518(h) of the Act and 30

C.F.R. § 723.15.” Paragraph 21 charges that “(djefendants

have repeatedly violated and continue to violate 30 C.F.R.

§ 723.15.”

As for SMCRA § 520(cX1)’s reference to the district “in

which the surface mining operation complained of is

located,” we again borrow from Two-acres. A charge that

the Secretary is failing to enforce the Act must be earth-

bound. To have substance, it must rest on proof that mine

operators, at specific locations, are evading the terms of

the Act, and are thus “adversely affect[ing]” the interests

of the complaining persons. See 725 F.2d at 1428 (“[E]ven

in the context of the Secretary’s failure to perform manda-

tory duties, the claim at bottom is referenced to specific

mining operations.”); id. at 1437 (instant case) (“[E)ven

though SOCM ‘complains of noncompliance by the Secre-

tary, the claim is ultimately concerned with violations and

abatement activities at specific mines.”). In sum, we find

most sensible a literal reading of SMCRA §6520 that

locates “{a]ny” citizen suit in a place where offending oper-

ations are ongoing. SOCM’s opposing interpretation

derives no support from SMCRA’s legislative history, and

is not as readily fitted to the structure and language of

the provision.

We have taken into account SOCM’s suggestion that

Congress, by repeatedly allocating funds for the Secre-

tary’s compliance with the court-entered settlement agree-

ments, see supra note 5, has effectively matched SMCRA

§ 520(cX1) with “(aX1)” actions and authorized recourse io

28 U.S.C. § 1391 for “(aX2)” suits. We do not read so much

into the appropriations measures, for there is no indica-

tion that they stand for anything more than Congress’

readiness to enable the Secretary to comply with court

orders and perhaps the legislature’s approval of the AVS

project. Cf. Randall v. Loftsgaarden, 478 U.S. 647, 661

(1986) (repeal of legislative prescription, in whole or in

part, “by implication” is not favored).

Nor do we think that our reading of SMCRA § 520(c1)

leaves no office for “(aX 2)” suits. Congress meant to distin-

guish “(aX1)” actions against operators of mines, including

661 F. Supp. 473, 476 (E.D. Ky. 1987) (in “(a2)” suit,

“plaintiffs are required to identify particular sites or oper-

ations in this district where (Secretary] ha[s] failed to

inspect or enforce [SMCRA]”). See also Oklahoma Wildlife

Fed’n v. Hodel, 642 F. Supp. 569 (N.D. Okla. 1986) (indi-

cating that restrained and moderate reading of SMCRA

§ 620(aX2) is in order, particularly in view of Heckler v.

Chaney, 470 U.S. 821 (1985)).

B. SMCRA’s Allocation of Rulemaking Review

As the Two-acres panel observed, in setting SMCRA’s

forum prescriptions for rulemaking review, Congress

showed its “preference for local judicial review where the

action potentially involves site-specific or local conditions.”

725 F.2d at 1428. This preference, expressed in SMCRA

§ 526(aX1), 30 U.S.C. § 1276(aX1), informs and supports

our reading of SMCRA § 520(cX1), the citizen suit forum

provision.

The Act’s scheme for judicial review of rulemakings, set

out in SMCRA § 626, is arranged on three territorial lines:

national, state, and local. “Any action by the Secretary

trict of Columbia. See, e.g., National Wildlife Fed’n v.

Hodel, 839 F.2d 694 (D.C. Cir. 1988) (review of national

regulations challenged in numerous respects by both envi-

18a

ronmental groups and groups representing coal industry).

“Any action of the Secretary to approve or disapprove a

State program or to prepare and promulgate a Federal

program [for a State] shall be subject to judicial review

by the United States District Court for the District which

includes the capital of the State whose program is at

issue.” 30 U.S.C. § 1276(aX1). “Any other action constitut-

ing rulemaking by the Secretary shall be subject to judi-

cial review only by the United States District Court for

the District in which the surface coal mining operation is

located.” Id.

The SMCRA § 526(aX1) scheme for review of rulemak-

ings, like the SMCRA § 52((cX1) citizen suit forum pre-

scription, does not provide for choice. Cf. 30 U.S.C.

§ 816(aX1) (authorizing judicial review of agency orders

under Federal Mine Safety and Health Act in circuit

where violation occurred or in D.C. Circuit); 29 U.S.C.

§ 660(a) (authorizing judicial review of agency decisions

under Occupational Safety and Health Act in circuit in

which violation occurred, where employer’s principal office

is located, or in D.C. Circuit). Because SMCRA § 526(aX 1)

is directive, not permissive, courts have said the provision

sets “subject matter jurisdiction.” See Virginia ex rel. Vir-

ginia Dep’t of Conservation and Economic Dev. v. Watt,

741 F.2d 37, 40 (4th Cir. 1984), cert. denied, 469 U.S.

1198 (1985); Drummond Coal Co. v. Watt, 735 F.2d 469,

472-76 (11th Cir. 1984) (both holding that suits for judi-

cial review of the Secretary’ actions in promulgating

“national rules or regulations” may be maintained only in

the District Court for the District of Columbia). See also

Amerikohl Mining, Inc. v. United States, 899 F.2d 1210,

1214-15 (Fed. Cir. 1990) (SMCRA § 526(aX1) prescribes

that national rules shall be subject to review in the Dis-

trict Court for the District of Columbia, and thereby

excludes proceedings in Claims Court under 28 U.S.C. §

1491, the general provision for Claims Court jurisdiction

over claims against United States).

and Minerals Dep't v. U.S. Dep't of Interior, 820 F.2d

441 (D.C. Cir. 1987)

This court, in New Mexico, analyzed SMCRA § 520(cX 1)

in the same way our sister circuits analyzed SMCRA

the character of SMCRA’s citizen suit and rulemaking

review forum rules, 30 U.S.C. §§ 1270(cX1), 1276aX1), we

observed, when designed to confine litigation to a Particu-

table tones of waiver”; rather, they “ha[ve] been equated

with a limitation of subject matter jurisdiction.” Jd.

tions, thus may be brought only where mining operations

complained of are located. 30 U.S.C. § 1270(aX2) & (cX1).

Concerning the alleged alternate bases under Title 28

(28 U.S.C. §§ 1331, 1337, 1361) for lodging this suit in the

District of Columbia, see supra p. 6, it suffices to recal]

“that even where Congress has not expressly stated that

statutory jurisdiction is ‘exclusive,’ . . . a statute which

—e

20a

vests jurisdiction in a particular court cuts off original

jurisdiction in other courts in all cases covered by that

statute.” Telecommunications Research and Action Center

v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984); see Drummond

Coal Co., 735 F.2d at 475. Nor does the “savings clause”

in SMCRA § 62Q(e), 30 U.S.C. § 1270(e), aid SOCM, for

as the Two-acres panel explained, that clause preserves

only rights to sue under laws other than SMCRA, and

grants no right to sue under the Act to compel the Secre-

tary to perform mandatory duties. 725 F.2d at 1429-31.

D. The Breadth of Judicial Oversight

We return, finally, to a concern we mentioned initially.

See supra p. 4. Outside the national rulemaking context,

federal courts customarily deal in situation-specific litiga-

tion, and do not engage long-term in grand scale supervi-

sion of an executive agency’s administration of federal

programs. See Heckler v. Chaney, 470 U.S. 821 (1985);

Women’s Equity Action League v. Cavazos, 906 F.2d 742

(D.C. Cir. 1990). We have read SMCRA’s less-than-

crystalline citizen suit authorization in that light. As the

Two-acres panel commented: if the economy of the broad-

gauged civil action to remedy a nationwide problem is

attractive, there are nevertheless compelling reasons sup-

porting Congress’ apparent preference for locally-oriented

adjudication. 725 F.2d at 1428. Here, for example, adjudi-

cation where mining operations are located would “allow{ ]

the operators more easily to become involved,” permit

“consideration of site-specific factors,” and “distribute ]

more evenly the judicial workload.” Jd. at 1428-29; see

National Wildlife Fed’n, 661 F. Supp. at 476 (citing Two-

acres, Kentucky district court dismissed an action brought

under § 620{a)(2) alleging nationwide failure by federal

and state regulatory authorities to administer and enforce

SMCRA; court held that § 520(cX1) applied to (aX2) suits);

cf. 30 U.S.C. § 1201(f) (referring to “diversity in terrain,

climate, biologic, chemical, and other physical conditions

in areas subject to mining operations”).

Our examination of cases against regulators for failure

Zla

to perform as mandated, whether under SMCRA, the

FWPCA, or the Clean Air Act, reveals that the complaints

cent to San Leandro Bay); National Resources Defense

Council, Inc. v. New York Dep’t of Environmental Conser-

vation, 700 F. Supp. 173 (S.D.N.Y. 1988) (Clean Air Act

(aX2) suit challenging EPA Administrator's failure to

a Better Environment v. Costle, 515 F. Supp. 264 (N.D. Il.

1981) (Clean Air Act (aX2) suit regarding [linois and

Indiana state implementation plans). We came upon no

reported case, under any of these acts, in which another

court has allowed an environmental group to maintain a

citizen suit as far-reaching as SOCM’s.'¢

CONCLUSION

Resolving the close statutory construction question this

case presents, we hold that Congress, in SMCRA

§ 520(cX1), 30 U.S.C. § 1270(cX1), established &@ special,

nonwaivable forum rule for al] citizen suits. Whether the

complaint is against mine operators directly (“(aX1)”

actions) or against official enforcers (“(a)(2)” Suits), the

case may be maintained only in a district in which ques-

tioned mining activity is located.

Our decision does not reach back to the consent decree _

entered in 1985 in conformity with the original settlement

agreement. The parties before us have not questioned that

decree, which expired by its own terms in 1990. NCA, we

note, believed that its members’ interests were not

“adversely affected” by the litigation leading up to the

"The more traditional pattern we found is particularly note-

worthy in view of the cases holding that the (cX1) provisions in

the FWPCA and the Clean Air Act do not limit (aX2) suits under

those Acts. See supra p. 13.

22a

1985 decree until “rules promulgated in late 1988 and

early 1989 broadened the operation of the AVS.” Brief of

Appellants National Coal Association and American Min-

ing Congress at 5 n.1. The proper forum for challenges to

1988 and 1989 national rules is indeed the District of

Columbia, see supra pp. 17-18; NCA, accordingly, is pur-

suing in this district challenges to the rules alleged to

cause its aggrievement. National Wildlife Fed’n v. Lujan,

No. 88-3117 (D.D.C.).

We cannot countenance, however, the renewal of the

citizen suit in the District of Columbia in 1989 and the

ensuing district court decree approving the second settle-

ment agreement. Based on our resolution of the scope of

SMCRA § 520(c)\(1), 30 U.S.C. § 1270(cX1), in this direct

appeal, we vacate the district court’s September 5, 1990

order. Taking account of the unsettled question of the

breadth of SOCM’s standing, see supra p. 10, and this

opinion’s indication of the need to alter the dimensions of

the suit, we think dismissal without prejudice, rather

than transfer, is in order. See 28 U.S.C. § 1631. We do not

think it appropriate to occupy our district court, given

these circumstances, with the task — likely to spark con-

troversy — of determining whether, how, and where to

transfer the case. We note, finally, in view of the Secre-

tary’s defense of the second settlement agreement as “fair,

reasonable and consistent with law,” that nothing in this

opinion precludes OSM’s maintenance and improvement

of the AVS, and adherence to the agreement’s terms, as

a matter of official policy.

For the reasons stated, the district court’s order, filed

September 5, 1990, is vacated and the case is remanded

with instructions to dismiss the action, without prejudice

to further proceedings elsewhere.

It is so ordered.

23a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action 81-2134-AER

SAVE OUR CUMBERLAND MOUNTAINS, INC., et al.,

Plaintiffs.

Vv.

MANUEL LUJAN, JR.. SECRETARY OF THE INTERIOR.

et al.,

Defendants.

and

NATIONAL COAL ASSOCIATION and AMERICAN MINING

CONGRESS.

Intervenors.

Dated: September 5, 1990

MEMORANDUM

This case concerns the enforcement of the Surface Min-

ing Control and Reclamation Act of 1977, 30 U.S.C § 120]

et seq. (““SMCRA”’), by the Secretary of the Department of

the Interior (the ‘“Secretary’’), and more specifically the

Office of Surface Mining (“‘OSM’’). The long and tangled

history of this litigation has lead to a carefully negotiated

and comprehensive proposed settlement agreement (“‘the

Agreement”), which the parties have placed before the

Court for its approval.

As the parties neared a final text late last year, two

coalitions of coal mining companies, the National Coal As-

sociation and the American Mining Congress (*NCA/AMC’’)

intervened to Oppose approval. The Court also granted

24a

amicus curiae status to the Interstate Mining Compact

Commission (‘‘IMMC’’), an association comprised of sev-

enteen coal mining states. The various parties have ex-

haustively scrutinized every detail of the Agreernent

through quite lengthy briefing. Having closely examined

each argument against approval, the Court concludes that

the Agreement is fair, reasonable and consistent with law.

It will therefore approve the agreement and dismiss the

case.

In examining and approving the Agreement, it is clear

that the Court needn’t determine the rights of the parties

or the merits of [the] case. Rather, it should satisfy itself

“that the settlement is fair, adequate, reasonable and ap-

propriate under the particular facts and that there has

been valid consent by the concerned parties.’’ Metropolitan

Hous. Dev. Corp. v. Village of Arlington Hts., 616 F.2d

1006, 1014 (7th Cir. 1980), quoted in Citizens for a Better

Environment v. Gorsuch, 718 F.2d 1117, 1127-28 (D.C. Cir.

1988). In addition, in a case such as this involving com-

prehensive statutory standards, the court ensures that ap-

proval is within its judicial power “simply by determining

that the settlement is consistent with the statute the con-

sent judgment is to enforce and fairly and reasonably re-

solves the controversy in a manner consistent with the

public interest.’’ Citizens for a Better Environment, 718

F.2d at 1128.

It is important to say first what the Agreement, once

approved, is not. It is not an injunction, its terms belie

any intention that it be one, and it will not be enforced

as such. As the Court reads the Agreement, approval sim-

ply serves the purpose of stating that the Agreement is

lawful and reasonable—that it comports with the dictates

of SMCRA and the Administrative Procedure Act (‘‘the

APA”), 5 U.S.C. § 553, and meets the standards of the

Constitution of the United States.

25a

The arguments of NCA/AMC in particular are myriad,

often overstated, and at times marked by a rhetorical

flourish which did not prove especially helpful. Nonethe-

less, in the Court’s view, plaintiffs and defendants suc-

cessfully addressed each challenge in their papers. While

the Court will not engage in a point by point discussion

of NCA/AMC’s claims, it will treat their core complaints

appropriately below. -

I. The Agreement and State Primacy

NCA/AMC and IMMC both allege that the Agreement

violates the SMCRA principle of state primacy. The Agree-

ment implements currently valid rules governing the is-

suance and rescission of mining permits. It also requires

the Secretary to enter into Memoranda of Understanding

with mining states regarding the use of the Applicant/

Violator System (‘‘AVS”). Much of NCA/AMC’s and IMMC’s

argument belongs, and is strenuously advocated, in the so-

called ‘‘Rules” cases. To the extent the Agreement goes

beyond applicable rules, the Court is satisfied that the

action it contemplates for ihe Secretary with respect to

the states is consistent with SMCRA section 521(a), 30

U.S.C. § 1271(a). Given this provision, the “primacy” con-

templated by the statute does not necessarily translate to

the “exclusivity” sought by intervenors and to a lesser

extent by amicus. Our Circuit has pointed out that the

“ultimate responsibility for guaranteeing effective state en-

forcement of uniform nationwide minimum standards lies

with the Secretary ....” Jn re Permanent Surface Mining

Regulation Litigation, 653 F.2d 514, 523 (D.C. Cir. 1981).

In this light, the Agreement plainly does not violate state

primacy.

II. The Agreement and the Administrative Procedure

Act

NCA/AMC next complain that the Agreement constitutes

rulemaking subject to the notice and comment require-

ments of the APA. The Court agrees with the Secretary

26a

that the Agreement primarily contains two types of pro-

visions: those implementing existing standards and those

which contemplate the creation of new standards. The for-

mer type requires no rulemaking. With respect to the lat-

ter category, the Agreement obligates the Secretary to

engage in future rulemaking and the APA will therefore

be satisfied at a later time.

Section One relates to the development of the AVS. It

clearly incorporates existing standards. Although NCA/AMC

believe the computer will contain and trigger action upon

ownership and contro! relationships different than those

set out in existing regulations, the Agreement provides

otherwise. The computer shall identify relationships “which

meet the requirements of 30 C.F.R. § 778.5 .... Agree

ment ¢ 1.3. Additionally, the terms “operator” and ‘‘per-

mitting action’? are defined by reference to the statute

and regulations. Finally, the Secretary is correct to point

out that the manner in which he structures the system is

purely a matter of ‘‘agency organization, procedure, or

practice’ to which the notice and comment requirements

of the APA do not apply. See 5 U.S.C. § 553(b\ 3X A).

Section Two deals with information collection. It relies

upon sources which add no new burden on industry. The

provision that OSM “consider” collecting other information

must be carried out using governmental sources, its own

investigation or by reviewing company records ‘“‘to the

extent allowed by applicable law.’’ Agreement q 2.5.

Section Three relates to state use of the AVS and the

Memoranda of Understanding discussed above. It expressly

provides for future rulemaking prior to the implementation

of most of its provisions. Other provisions 1n this Section

simply are not “rules.” For example, Attachment A ex-

empts three provisions from future rulemaking. Under par-

agraphs 3.1, 3.1.1 and 3.1.3, the Secretary must require

the states to use the AVS, review certain files therein to

verify applicant ownership and control statements and ad-

27a

dress all potential links to violations. These requirements

can be found in existing regulations. See 30 U.S.C. §§

1260(bX1), (c) and 30 C.F.R. §§ 773.15(b\1), and (e\1) (reg-

ulatory authority must use “available information” before

issuing permit and find that linked violations are corrected,

are being corrected or subject to appeal).

The Court is also persuaded that Section Six of the

Agreement merely incorporates the standards of the ‘‘im-

providently issued permit” rules, 30 C.F.R. §§ 773.20,

773.21, 843.21. Much is made of the requirement in par-

agraph 6.7 that OSM take “effective remedial action con-

sistent with 30 C.F.R. § 843.21(d),” while that regulation

simply calls for “appropriate” action. NCA/AMC is correct

that some types of enforcement may well be effective and

at the same time entirely inappropriate. It seems rather

clear that any inappropriate, though effective, remedial

action taken under the Agreement would be Subject to

challenge under the rule, which provides the standard which

“effective” action must be judged. Lastly, NCA/AMC chal-

lenge the lack of concrete standards governing the manner

in which violator link determinations may be rebutted. In

the ownership and control rules, the Secretary has chosen

a case-by-case analysis in this regard, and claims that this

method is not lawful must be addressed in the “Rules”

case.

Section Seven deals with individual civil penalties, con-

sistent with the provisions of 30 U.S.C. § 1268(f) and 30

C.F.R. §§ 846.5, 846.12(b). No new standards are imposed.

Indeed, paragraph 7.2 provides that OSM must proceed

‘in accordance with’’ the Individual Civil Penalty regula-

tions, and that “prior to any final ICP assessment [an

individual] shall be afforded due process of the law, in

accordance with 30 C.F.R. § 846.17.” Finally, though OSM

wishes to shift the burden of going forward with evidence

to the individual, the Agreement provides for future ru-

lemaking before it will do so.

28a

Section Ten provides for a dispute resolution mechanism

for conflicts which arise between the parties under the

Agreement. It is largely a continuation of the mechanism

found in Judge Parker’s 1985 Amended Order, and does

not alter the substantive or procedural rights of third par-

ties. Affected parties retain any remedies against OSM

action they might otherwise have by regulation of statute.

Lastly, NCA/AMC’s arguments that Sections Eleven ard

Twelve require notice and comments are also without

merit. Section Eleven’s requirement that OSM make cer-

tain net worth determinations available to plaintiffs re-

mains limited by the Privacy Act, 5 U.S.C. § 552a. Section

Twelve permits the OSM to suggest and negotiate better

methods of achieving the goals of the Agreement and ad-

dresses possible changes in the applicable law. These pro-

visions are procedural, as well as merely contemplative of

possible future action. The application in the future might

well result in substantive alteration of applicablé stand-

ards, but they do not presently constitute rulemaking.

III. The Agreement and Due Process

NCA/AMC believe that portions of Sections Three, Six

and Nine deprive them of property without due process

of law. They first point to the use of the term ‘“‘link’”’ in

Sections Three and Six as unconstitutionally vague. The

term is defined as an “ownership and control relationship|]

which meet{s] the requirements of 30 C.F.R. § 773.5.”

Agreement ¢ 1.3. The Court believes that NCA/AMC’s

“confusion” actually stems from its disagreement with the

ownership and control rules, which are allegedly over-ex-

pansive and which rely to some extent on case-by-case

analyses. These claims will be determined in good time in

the “Rules” cases. The clear equation of the term with

the ownership and control rules and the set of examples

found at paragraph 1.3, however, is more than adequate

to pass constitutional muster.

29a

The Court has addressed the effect of Section Ten above.

The procedures therein do not and cannot prejudice the

due process rights of third parties, as the Agreement ex-

pressly provides. The 1985 Amended Order’s terms are

actually improved with respect to third party rights. In

the Court’s judgment, Section Ten is entirely consistent

with due process in the abstract, as well as with existing

administrative procedures.

IV. Delegation of Authority

The Agreement does not unlawfully delegate power to

a private party, plaintiffs. It is clear from paragraph 1.4

of the Agreement that OSM retains responsibility for the

manner in which the AVS computer system is developed.

More generally, the Secretary retains full overall discretion

under the Agreement by reserving the right to render a

final decision following Section Ten dispute resolution pro-

cedures.

The other provisions to which NCA/AMC point as un-

lawful delegations simply do not read as such. One example

is paragraph 2.2.n.5, which NCA/AMC characterize as re-

quiring the Secretary to accept information provided by

plaintiff outside the computer system. Instead, the Agree-

ment provides for OSM verification of the information be-

fore its acceptance and use by the agency. No unlawful

delegation appears from such a scheme.

NCA/AMC also contend that the Agreement, if approved,

would violate the principle of separation of powers because

the Court would have interfered with the Secretary’s dis-

cretion and interjected itself into matters beyond its eq-

uitable powers. This argument assumes in part that the

Agreement is by its terms illegal, something the Court has

already rejected. Moreover, the Court’s role, previously

extensive under the 1985 Amended Order, is substantially

curtailed. The dispute resolution procedures of Section Ten

require plaintiffs to initiate new litigation if unsatisfied

with the Secretary’s final decision. OSM retains all juris-

30a

diction and venue defenses it might otherwise have in such

an action. It is difficult to see, therefore, in what manner

the Court might overstep its equitable power.

V. Conclusion

After examining each provision of the Agreement,

hundreds of briefing pages and the dozens of specific ar-

guments by intervenors and amicus in opposition to ap-

proval, the Court concludes that the Agreement is entirely

in accord with SMCRA, the APA and constitutional man-

dates. It is a fair and reasonable compromise and rationally

carries out the purposes behind SMCRA and the rules

promulgated by the Secretary thereunder. The Agreement

will receive the Court’s approval, and this case will be

dismissed.

An appropriate Order accompanies this Memorandum.

3la

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

Civil Action 81-2134-AER

SAVE OUR CUMBERLAND MOUNTAINS. INC. et al.,

Plaintiffs,

Vv.

MANUEL LUJAN, JR.. SECRETARY OF THE INTERIOR. et

al.,

Defendants.

and

NATIONAL COAL ASSOCIATION and

AMERICAN MINING CONGRESS.

Intervenors.

Dated: September 5, 1990

ORDER

Upon consideration of the joint motion of the parties

under Fed. R. Civ. Pro. 41 to approve the Settlement

Agreement Between Save Our Cumberland Mountains, Inc.

et al. and Manuel Lujan, Jr., Secretary, United States

Department of the Interior, et al. (the ‘““Agreement”’) and

to dismiss the above-captioned case, and upon considera-

tion of the Brief in Opposition to the Agreement of the

National Coal Association and American Mining Congress,

as well as the amicus curiae brief of the Interstate Mining

Compact Commission, it is by the Court this 5th day of

September, 1990,

ORDERED, that the Agreement be and hereby is AP-

PROVED by the Court: and it is

FURTHER ORDERED, that this matter be and hereby

is DISMISSED

/s/ Aubrey E. Robinson, Jr.

Aubrey E. Robinson, Jr.

Chief Judge

\ 33a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action 81-2134

SAVE OUR CUMBERLAND MOUNTAINS, INC., et al.

Plaintiffs,

JAMES G. WATT. et al.,

Defendants

Dated: September 30, 1982

MEMORANDUM OPINION AND ORDER

In this action, two Appalachian-based nonprofit environ-

mentalist organizations, Save Our Cumberland Mountains,

Inc. and the Council of Southern Mountains, Inc., seek

declaratory and injunctive relief against the Secretary of

the Interior (Secretary) and the Director of the Office of

Surface Mining Reclamation and Enforcement (OSM). The

plaintiffs claim that Department of Interior officials have

failed to assess and collect mandatory civil penalties and

take appropriate enforcement actions against surface coal

mine operators who have been found in violation of the

Surface Mining Control and Reclamation Act of 1977 (Act),

30 U.S.C. §§ 1201 et seq.

Defendants have moved to dismiss on grounds that venue

is improper in this judicial district. They assert that this

action cannot be brought in this district because the mining

operations violative of the Act for which penalties have

not been collected are not located in the District of Co-

lumbia. Defendants also assert that the complaint fails to

34a

state a claim for which relief may be granted because

imposition of the penalties sought by the plaintiffs is an

action within the government’s discretion. The parties have

briefed and orally argued the motion to dismiss with re-

spect to the venue provision and have also briefed the

issue whether the assessment of penalties is mandatory or

discretionary.

For the reasons set forth below the Court concludes

that the plaintiffs have established venue and jurisdiction

in this Court and that defendants have a mandatory duty

to impose the penalties prescribed by the Act.

The Surface Mining Control and Reclamation Act is a

comprehensive statute designed to “establish a nationwide

program to protect society and the environment from the

adverse effects of surface coal mining operations.’’ 30

U.S.C. § 1202. Section 520 of the Act, 30 U.S.C. § 1270,

provides for two types of private actions: subsection (aX1)

authorizes citizen suits against anyone ‘‘alleged to be in

violation of the provisions of this chapter or of any rule,

regulation, order or permit issued pursuant thereto .. oa

subsection (aX2) authorizes suits against a regulatory au-

thority, including the Secretary for failure “to perform

any act or duty under this chapter which is not discre-

tionary ....”

‘In addition, section 520(cX1) provides that the appro-

priate venue for actions “respecting a violation of this

chapter or the regulations thereunder may be brought only

in the judicial district in which the surface coal mining

operation complained of is located.” Defendants argue that

venue is improper in this district since the violative surface

mining operations are located not within the District of

Columbia but, rather, within the Appalachian region.

Although defendants suggest otherwise, section 520(c)

is a venue, not a jurisdictional, provision. As such, it re-

35a

lates solely to the convenience of the litigants. Denver &

Rio Grande Western Railroad Co. v. Brotherhood of Rail-

road Trainmen, 387 U.S. 956, 560 (1967); Olberding v.

Illinois Central Railroad Co., 346 U.S. 338, 340 (1953).

Moreover, it is generally appropriate to interpret a venue

Statute so as to allow the plaintiffs to choose their forum.

See Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508

(1947).

With these guidelines in mind the government’s argu-

ment must fail. The plaintiffs challenge the Secretary's

decision not to assess penalties under section 518(h) of the

Act. The Secretary’s decision is allegedly nationwide in

scope, affecting 700 or more violations. Clearly, it would

not be more convenient to any party if plaintiffs were

required to refile this suit in Virginia, Kentucky or else-

where, when the challenged action took place here in

Washington, D.C. and affects surface coal mines through-

out the United States.

Rejection of the impractical result sought by the gov-

ernment need not rest on a contorted reading of section

520(c). That venue provision refers to actions involving

only individual coal mines. It provides that: “Any action

respecting a violation of this Act or the regulations there-

under may be brought only in the judicial district in which

the surface coal mining operation complained of is located”

(emphasis added). In this case, plaintiffs challenge a pur-

ported national policy under the Act, not 700 individual

decisions involving particular coal mining operations. !

‘This case is distinguishable from a recent ruling of Judge Richey

of this Court finding that venue was improper in this district under

section 520(c) of the Act. Save Our Cumberland Mountains v. Watt,

No. 81-2238 (D.D.C. July 6, 1982). There, plaintiffs claimed that the

Secretary of the Interior failed to inspect and enforce against mining

and reclamation operations alleged to be in excess of two acres and

failed to collect monies owed by mining operators to the Abandoned

Mine Reclamation Fund. The Court held that individual lawsuits should

be brought in the district of each mining operation because “‘the par-

36a

Professor Moore has cautioned that ‘“‘venue limitations

should not be made a fetish.”’ 1 J. Moore, Moore’s Federal

Practice € 0.140 [1.-1}(2s ed. 1976). The defendants’ inter-

pretation of the venue provision makes no sense in this

case and is not required under a straightforward reading

of section 520(c). Thus, this Court must turn to the general

venue statute, 28 U.S.C. § 1391(b), which provides venue

within this district as the place where the claim arose.

II.

The substantive issue in this case is whether section 518

of the Act imposes a mandatory or discretionary duty on

the Secretary to assess penalties for a cessation order

issued under section 521(aX3). If section 518 imposes a

discretionary duty, then dismissal of this action is appro-

priate since section 520(aX2), the jurisdictional provision

relied upon by the plaintiffs, confers jurisdiction solely over

suits to compel the Secretary to perform a mandatory

duty. If, on the other hand, section 518 imposes a man-

datory duty, then the jurisdictional requirement is satis-

fied.

The enforcement provisions of the Act are found in sec-

tion 521, 30 U.S.C. § 1271. When the Secretary has reason

to believe that a mining operation contains a serious vi-

olation of the Act or the operator’s permit—i.e., one which

ticular facts of each mining or reclamation operation might dictate a

different result in each instance.” The Court was apparently, and rea-

sonably, concerned that a determination of whether a site exceeds two

acres and a determination of the reclamation fees appropriate for each

operator are dependent upon information about each particular site.

In this case, however, the facts of each violative operation are not

relevant. The issue here is whether the Secretary’s duty to impose civil

penalties is discretionary or mandatory. This Court is concerned with

the nature of the Secretary’s duty, not with the conditions at each of

the operations collectively referred to in the complaint. Site-specific

facts are relevant not to this lawsuit but, rather, to the administrative

process invoked after issuance of the assessment.

37a

creates “Imminent danger to the health or safety of the

public” or ‘‘can reasonably be expected to cause signifi-

cant, imminent environmental harm’’—the Secretary must

immediately order cessation of mining activities. Section

521(aX2), 30 U.S.C. § 1271(aX2). If, however, the violation

does not create an imminent danger to the public or to

the environment, then the Secretary must issue a notice

of violation fixing a reasonable time for the abatement of

the condition. Section 521(aX3), 30 U.S.C. § 1271(aX3). If

the mine operator fails to abate the condition within the

specified time, the Secretary ‘shall immediately order a

cessation of surface coal mining and reclamation operations

on the portions thereof relevant to the violation.”’ Jd.

This lawsuit is concerned with the civil penalties which

follow the issuance of a “‘failure-to-abate’’ cessation order.

The plaintiffs rely on the mandatory language contained

within the relevant portions of the penalties section of the

Statute. Section 518(a) states:

[A]ny permittee who violates any permit condition or

who violates any other provision of this title, may be

assessed a civil penalty by the Secretary, except that

if such violation leads to the issuance of a cessation

order under section 521, the civil penalty shall be

assessed.

30 U.S.C. § 1268(a) (emphasis added).

In addition, section 518(h) reiterates and specifies the

mandatory penalty for failure-to-abate cessation orders:

Any operator who fails to correct a violation for which

a citation has been issued under section 1271(a) of

this title within the period permitted for its correction

. Shall be assessed a civil penalty of not less than

$750 for each day during which such failure or vio-

lation continues.

38a

30 U.S.C. § 1268(h) (emphasis added).°

The word ‘‘shall’’ in these two provisions suggest that

the duty to which it applies is mandatory. See, e.g., As-

sociation of American Railroads v. Costle, 562 F.2d 1310,

1312 (D.C. Cir. 1977). Nevertheless, the government ar-

gues that the assessment of penalties for failure-to-abate

cessation orders is discretionary. The Secretary asserts

that the statutory scheme ‘‘viewed as a whole” supports

the conclusion. He points to the elaborate administrative

review process available to a mine operator who seeks to

challenge the order or the assessment. See 30 U.S.C.

§§ 1268(b), (c), 1271(aX5), 1275; 438 C.F.R. Part 4.5 A mine

operator might utilize these procedures to challenge the

validity of a notice of violation or cessation order or the

amount of the penalty. If so, the Secretary might decide

not to proceed with a notice of violation during a minesite

hearing or before an administrative law judge. The Sec-

retary might also decide not to appeai from an adverse

administrative law judge’s ruling. Such examples of pro-

secutorial discretion, the Secretary argues, suggest that

the Secretary must also have discretion in the assessment

of penalties.

The Secretary's position lacks merit. Nothing in the ad-

ministrative review procedures provide that the Secretary

* The regulations contain similar mandatoi , language:

[W]henever a violation contained in a notice of violation or

a cessation order has not been abated within the abatement

period set in the notice or order or as subsequently extended

pursuant to Section 521(a) of the Act, a civil penalty of not

less than $750 shall be assessed for each day during which

such failure to abate continues ...

30 C.F.R. § 723.15(b).

*The Secretary's explanation of these statutory and regulatory pro-

visions is nearly identical to that provided the Court and quoted at

length in United States v. Hill, 533 F.Supp. 810 (E.D. Tenn. 1982). It

does not, therefore, warrant repetition.

assessment might not withstand the rigors of administra-

tive review, the Secretary cannot rely on the possibility

of an adverse outcome as an excuse for failing to take

the first step in the penalty process required by the stat-

ute.

failure to comply with the 30-day requirement may bar

collection of the penalties.* Finally, he notes that enforce-

ment efforts might not be “cost-effective,”

The Court is unconvinced that the cost of enforcement

or likelihood of success is a concern which warrants en-

prejudice. Sahara Coal Co., Interior Board of Surface Mining and Re-

clamation Appeals No. 81-31 (Nov. 30, 1981); Badger Coal Co., Interior

Board of Surface Mining and Reclamation Appeals No. 80-16 (July 24,

1980).

40a

Ill.

The plaintiffs also seek enforcement of a regulation, 30

C.F.R. § 723.15(b\2), which requires the Secretary to take

enforcement measures following assessment of a penalty.

It provides:

Such penalty for the failure to abate a violation shall

not be assessed for more than 30 days for such vi-

olation. If the permittee has not abated the violation

within the 30-day period, the Office shall take appro-

priate action pursuant to sections 518(e), 518(f),

521(aX4) or 521(c) of the Act within 30 days to ensure

that abatement occurs or to ensure that there will

not be a reoccurrence of the failure to abate.

The defendants have not focused on this regulation in

their memoranda in support of the motion to dismiss. Be-

cause of the foregoing ruling that the duty under section

518 is mandatory, however, it follows that the enforcement

measures under this regulation are also mandatory.

IV.

Although the sole dispositive motion before the Court

in this case is defendants’ motion to dismiss, the Court is

of the view that the foregoing has fully addressed the

substantive issues in this case. The only remaining question

is the manner for proceeding with the assessment of pen-

alties and enforcement of 30 C.F.R. § 728.15(b\2).

The Court will enter judgment for the plaintiffs and

require the plaintiffs to submit an appropriate order con-

sistent with this Memorandum Opinion.

4la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action 81-2134

SAVE OUR CUMBERLAND MOUNTAINS, INC.. et al..

Plaintiffs.

JAMES G WATT, et al..

Defendants

Dated: September 30, 1982

ORDER

In accordance with the accompanying Memorandum

Opinion, it is this 30th day of September, 1982,

ORDERED that defendant’s motion to dismiss is denied:

and it is

FURTHER ORDERED that judgment is entered for the

plaintiffs and they shall file an appropriate order within

five days of this date: and it is

FURTHER ORDERED that the Court shall retain juris

diction over this matter.

/s/ Barringto nD. Parker

United States District Judge

42a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT QF COLUMBIA

Civil Action No. 81-2134

SAVE OUR CUMBERLAND MOUNTAINS,

INC., et al.,

Plaintiffs,

JAMES G. WATT, et al..,

Defendants.

Dated: December 29, 1982

ORDER DENYING RECONSIDERATION

On September 30, 1982, this Court issued a Memoran-

dum Opinion -nd Order granting judgment to the plaintiffs.

It was held that section 518(h) of the Surface Mining Con-

trol and Reclamation Act of 1977 (the Act), 30 U.S.C. §§

1201 et seg., required the Secretary of the Interior to

assess and collect mandatory civil penalties for coal mining

operators found in violation of the Act. The Court further

held that 30 C.F.R. § 723.15(b\2) required the Secretary

to take certain enforcement measures. The Court ordered

the plaintiffs to submit a proposed order.

Following that submission, the government filed a mo-

tion for reconsideration of the Court’s judgment and, in

addition, objected to the plaintiffs’ proposed order.

Motion for Reconsideration

The government makes several arguments in its motion

for reconsideration. First, it attaches the affidavit of James

43a

Harris, Director of the Office of Surface Mining Recla-

mation and Enforcement and a defendant in this action,

which states that the government has completed a pro-

gram of penalty assessment for operators who are the

subject of this proceeding. Thus, the government seeks to

dismiss as moot the portions of plaintiffs’ complaint con-

cerning the assessment of civil penalties. Second, the gov-

ernment contends that the Court incorrectly concluded that

venue was proper in this Court. Third, defendants assert

that because plaintiffs had not filed a motion for summary

judgment, granting of judgment in their behalf was in-

appropriate.

The government’s mootness argument is limited in scope.

The motion does not seek reconsideration of the basic hold-

ing of the September 30th Opinion and Order—namely,

that § 518(h) imposes a mandatory duty upon the Secretary

of the Interior to assess civil penalties against coal mine

operators. Indeed, the government’s proposed order, filed

with its motion for reconsideration, includes such a dec-

laration. It clearly would be unavailing for the government

to allege that the Court lacked jurisdiction over the pro-

ceeding when the government had contended, throughout

this litigation, that section 218(h) imposed discretionary,

rather than mandatory duties upon the Secretary. Vol-

untary cessation of illegal conduct renders a case moot

not only if there is no reasonable expectation that the

wrong will be repeated. De Funis v. Odegaard, 416 U.S.

312 (1974); U.S. v. W.T. Grant Co., 345 U.S. 629, 632

(1953); Commonwealth of Virginia ex rel. Coleman v. Cal-

ifano, 631 F.2d 324, 326 (4th Cir. 1980). In view of the

Secretary’s position throughout this litigation, the Court

clearly could have had no such reasonable expectation.

Thus, the only issue presented by the government’s claim

of “mootness”’ is whether, in light of the Secretary’s com-

pliance with the statute. injunctive relief is necessary to

ensure that the defendants do not resume their flouting

of sections 518(h). In light of the Secretary's three-year

44a

disregard for the statute and regulations, this Court con-

cludes that injunctive relief is entirely appropriate.

The government’s argument as to venue has already

been addressed at length and rejected. The affidavit in

support of its motion adds nothing to an earlier filing and,

in fact, provides considerable support for the Court’s rul-

ing. The government’s position throughout this litigation

has been that venue is lacking in this District because of

the necessity for “‘site-specific’”’ determinations in the pen-

alty process. The Harris affidavit, however, makes clear

what the defendants had argued all along—namely, that

the huge majority of penalties can be assessed without

reference to any ‘‘site-specific’’ factors.! The government’s

further description of “‘site-specific’’ factors related to

compliance with 30 C.F.R. 723.15(bX3) also lacks support.

While that section provides the Secretary with discretion

in selecting an appropriate enforcement action under 30

C.F.R. § 723.15(bX2), the issue in this proceeding is the

Secretary’s failure to take any action under that regula-

tion.

Finaily, the Secretary argues that the Court erred in

entering judgment for the plaintiff prior to the filing of

‘The Harris affidavit recites that 1,196 failure-to-abate cessation or-

ders were issued pursuant to § 521(aX3), and, of those, assessments

were mailed for all but 97. Harris Aff. (Oct. 15, 1982) at § 7. For the

remaining orders, assessments were not mailed because 1) the operator

is deceased or has filed for bankruptcy, or 2) the cessation order expired

automatically pursuant to § 521(a\X5), or 3) OSM lacked jurisdiction over

the operation, or 4) the practice initially deemed a violation was actually

in compliance with al] permit conditions and provisions of the Act, or

5) the underlying notice of violation was not properly served. Jd. Al-

though the affidavit does not provide details on these factors, it would

seem that none of the non-assessed violative operations contained char-

acteristics requiring, as the government seeks, dismissal of this action

in favor of re-filing in the judicial district of an individual mining

operation. In any event, OSM could have easily discovered any ‘“‘site-

specific’’ defect in a cessation order during an administrative review.

Thus, it approaches the disingenuous for the government to now argue

that the Court erred in its determination of the venue question.

45a

motions for summary judgment. As the September 30th

ruling stated, judgment was entered because the govern-

ment, in seeking dismissal of this action, had thoroughly

briefed the underlying substantive legal issue—namely,

whether the Secretary’s duties under § 518 and 30 C.F.R.

§ 723.15(bX2) are mandatory or discretionary. Although it

has moved for reconsideration, the government has not

identified even one factual dispute which should have pre-

cluded judgment for the plaintiffs. Because the controlling

legal issue was fully briefed, and no issues of material fact

existed, the government was not prejudiced by the Court’s

procedure for disposition of this case.2 The government’s

argument is therefore rejected.

On the basis of the foregoing the government’s request

for reconsideration and other relief is denied. After review

of the alternative orders proposed by the parties, the Court

determines that the plaintiffs’ order more effectively ful-

fills the requirements of the statute and regulation and is

consistent with the Memorandum Opinion and Order of

September 30, 1982. Entry of that order will follow.

/s/ Barrington D. Parker

Barrington D. Parker

United States District Judge

*The government, in a letter to the Court dated December

10, 1982 submitted for consideration a recent decision reversing

the sua sponte award of summary judgment, United States v.

Thompson Brothers Coal Co., Inc., No. 82-524] (3rd Cir. Nov.

29, 1982). There is ample precedent in this circuit, however, for

such an action. See Kennedy v. Whitehurst, 509 F.Supp. 226,

231-32 (D.D.C. 1981), aff'd 690 F.2d 95] (D.C. Cir. 1982). See

also Hoffa v. Fitzsimmons, 673 F.2d 1345, 1361-62 (D.C. Cir.

1982); Federal Food Service, Inc. v. Donovan, 658 F.2d 830.

831 (D.C. Cir. 1981); Viles vy. Claytor, 481 F.Supp. 465, 469-70

(D.D.C. 1979). Cf. Sibley Memorial Hospital v. Wilson, 488 F.2d

1338, 1343-44 (D.C. Cir. 1973),

46a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1224

SAVE OUR CUMBERLAND MOUNTAINS, INC.,

COUNCIL OF SOUTHERN MOUNTAINS, INC.

WILLIAM P. CLARK, in his official capacity as

Secretary of the Interior, et al., APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 81-2134)

Argued September 26, 1983

Decided January 20, 1984

Roger Marzulla, Attorney, U.S. Department of Justice,

for appellants. Carol E. Dinkins, Assistant Attorney Gen-

eral, and Robert L. Klarquist, Alfred T. Ghiorzi, and

Jennele M. Morris, Attorneys, U.S. Department of Jus-

tice, and Harold P. Quinn, Jr., Attorney, U.S. Depart-

ment of Interior, were on the brief for appellants.

47a

Brent N. Rushforth, with whom L. Thomas Galloway

and Nancy C. Crisman were on the brief, for appellees.

Before TAMM and WILKEY, Circuit Judges, and MAc-

KINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge TAM™.

TAMM, Circuit Judge: This is an appeal from a dis-

trict court order compelling the Secretary of the Interior

(the Secretary) and the Director of the Office of Surface

Mining (the Director) to enforce the Surface Mining

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

$§ 1201-1328 (Supp. V 1981). Because we find that the

district court erred in ruling that venue was properly in

this district, we reverse.

I. Facts

The Surface Mining Control and Reclamation Act of

1977 is a comprehensive statute designed to control and

remedy the effects of surface coa] mining operations. The

Secretary of the Interior is primarily responsible for ad-

ministering and implementing the provisions of the Act.

The dispute in this case concerns the Secretary’s duty to

take enforcement action against persons that he has deter-

mined are violating the Act.

Two environmental citizen groups, Save Our Cumber-

land Mountains, Inc. and Council of Southern Mountains

(hereinafter referred to collectively as SOCM), filed this

action on September 8, 198]. They alleged that the Sec-

retary and the Director had failed to assess mandatory

penalties against over 700 mine operators that had been

cited for violations of the Act.2 SOCM further asserted

* This case was consolidated for purposes of oral argument

and decision with case number 83-1008, Save Our Cumberland

Mountains, Inc. v. Clark, also decided today.

? The enforcement provisions relevant to this case are out-

lined in sections 518 and 521 of the Act. 30 U.S.C. §§ 1268,

1271 (Supp. V 1981). When the Secretary determines that a

48a

that the Secretary had violated his own mandatory regu-

lation by failing to initiate enforcement actions against

hundreds of mine operators that continued to violate the

Act after expiration of a 30-day penalty period.’ Juris-

diction for the action was based on section 520(a) (2) of

the Act, which authorizes citizens’ suits against the Sec-

retary for failure to perform nondiscretionary duties.

30 U.S.C. § 1270(a) (2). In addition, the complaint al-

leged jurisdiction under 28 U.S.C. §§ 1331, 1337, 1361,

2201, and 2202 (1976 & Supp. V 1981).

mine operator is violating the Act, he is required to issue

either a cessation order (CO) or a notice of violation (NOV).

Issuance of an NOV ora CO triggers the enforcement mecha-

nism. If the Secretary has issued an NOV, he may assess a

civil penalty. 30 U.S.C. § 1268(a). If the Secretary has issued

a CO, however, the Act provides that he “shall” assess a civil

penalty. 7d. An operator who fails to abate a violation within

the time period allowed by the NOV or CO “shall be assessed”

an additional civil penalty (known as a failure to abate pen-

alty) of at least $750 for each day the violation remains un-

abated. 30 U.S.C. § 1268(h).

* The regulation limits the assessment of the $750 per day

failure to abate penalty to a period of 30 days after expiration

of the initial abatement period prescribed in the NOV or CO.

The regulation further provides: “If the permittee has not

abated the violation within the 30-day period, the Office shall

take appropriate action pursuant to sections 518(e), 518(f),

521 (a) (4) or 521(c) of the Act within 30 days to ensure that

abatement occurs or to ensure that there will not be a reoccur-

rence of the failure to abate.” 30 C.F.R. § 723.15(b) (2)

(1982).

The appropriate action referred to includes the suspension

or revocation of permits. Section 521(a) (4), 30 U.S.C.

§ 1271(a) (4). The Secretary may also request the Attorney

General to initiate a civil action to enjoin operation of the

violating mine. Section 521(c), 30 U.S.C. §1271(c). Opera-

tors who willfully or knowingly violate the Act are subject to

criminal fines or imprisonment. Section 518(e), 30 U.S.C.

§ 1268(e). Finally, section 518(f) subjects corporate direc-

tors and officers to fines, penalties and imprisonment for viola-

tions by corporate entities. 30 U.S.C. § 1268(f).

49a

The Secretary moved to dismiss the action asserting

that the specific venue provision in section 520(¢) (1) of

the Act, 30 U.S.C. § 1270(¢) (1), precludes venue in this

district. The Secretary further alleged that the district

court lacked jurisdiction because his duty to assess penal-

ties and enforce the Act is entirely discretionary.

The Secretary’s motion to dismiss was denied, The dis-

trict court ruled that the specific venue provision in sec-

tion 520(c) (1) applied only to actions involving individ-

ual coal mines and not to actions, such as this one, that

challenged a purported national policy. The court ruled

that venue was properly in this district under the general

venue statute, 28 U.S.C. § 13891. Save Our Cumberland

Mountains, Inc. v. Watt, 550 F. Supp. 979, 980-81

(D.D.C. 1982). The district court then concluded that the

Secretary’s duty to collect civil penalties and initiate al-

ternative enforcement is mandatory. Finding no issues of

fact remaining, the court entered judgment for the plain-

tiffs. Id. at 983.

The Secretary brought this appeal. He contends that

the specific venue provision in section 520(c) (1) governs

this action and thus venue is improper in this district.

We agree that the specific venue provision is applicable

to the claim in this case and, accordingly, we reverse the

district court’s decision.‘

* The Secretary raises two other arguments on appeal. First,

he disputes the district court’s ruling that he has a mandatory

duty to implement alternative enforcement procedures when

& violation ig not abated within the allotted time period. (He

admits, for purposes of this case, that the duty to assess civil

penalties is mandatory. See Brief for Appellants at 25-26).

Second, he asserts that the district court erred in entering

summary judgment for SOCM without a proper motion. Since

our decision on the venue issue is dispositive, we need not

address these claims of error.

50a

II. DISCUSSION

In our decision today in Save Our Cumberland Moun-

tain, Inc. v. Clark, No. 83-1008, we concluded that all ac-

tions against the Secretary for failure to perform duties

required by the Surface Mining Control and Reclamation

Act are governed by the specific venue provision in sec-

tion 520(c)(1) of the Act. That decision controls our

disposition of this case. We incorporate that decision’s

discussion of the applicability of the specific venue pro-

vision into this opinion.

Under the specific venue provision, any claim alleging

a violation of the Act or its regulations must be brought

in the district where the mine operation complained of is

located.* Here, SOCM alleges that the Secretary failed to

perform duties required by the Act and its regulations

because he failed to assess civil penalties and initiate en-

forcement proceedings against mines that he determined

were violating the Act. A claim that the Secretary has

failed to perform a duty required by the Act is, in es-

sence, a claim that he has violated the Act. By its terms,

therefore, the venue provision applies tc the claim in

this case.

SOCM raises two principal arguments in support of its

position that the specific venue provision does not apply

to this claim. First, it argues that the venue provision

applies only to actions brought against individual mining

operators pursuant to section 520(a) (1) of the Act and

not to actions against the Secretary for failure to per-

form nondiscretionary duties under section 520(a) (2).°®

5 The venue provision, found in the citizens’ suit section of

the Act, provides: ‘“‘Any action respecting a violation of [this

Act] or the regulations thereunder may be brought only in the

judicial] district in which the surface coal mining operation

complained of is located.” 30 U.S.C. §1270(c) (1).

* Under section 520(a) (1), citizens may bring suits against

any entity that is allegedly in violation of the Act. Section

5la

Second, it contends that the provision does not apply if

jurisdiction for the claim alleged is not based solely on

the citizens’ suit section of the Act.

These arguments were discussed fully in case number

83-1008, Save Our Cumberland Mountains, Inc. v. Clark.

There, we found that the plain language of the venue pro-

vision evidences an intent that it be applied broadly. We

thus concluded that the venue requirement applies to

actions against the Secretary under section 520(a) (2) of

the citizens’ suit provision. We also determined that there

is no evidence of a congressional intent to limit application

of the provision where jurisdiction for the claim is derived

from a source other than the citizens’ suit section of the

Act. Since SOCM’s arguments raise no new issues, we

dispose of them summarily.

SOCM further contends that venue is appropriate in

this district because the action challenges a nationwide

policy of nonenforcement and does not “complain of” the

violations committed by specific mines. We reject this as-

sertion for two reasons. First, SOCM’s argument ignores

the venue provision’s broad language. In enacting this

provision, Congress chose to restrict venue in “Tajny

action respecting a violation of [this Act]....” 30 U.S.C.

§ 1270(c) (1) (emphasis added). It did not choose to

selectively limit venue depending on either the scope of

the claim or the relief requested. We cannot restrict the

plain meaning of the Statutory language. Second, even

though SOCM “complains of” noncompliance by the Sec-

retary, the claim is ultimately concerned with violations

and abatement activities at Specific mines. Site specific

issues can easily become important to SOCM’s claim.

In fact, the district court’s most recent order requires the

Secretary to report on the environmental conditions at

specific sites and to describe both the corrective actions

520 (a) (2) authorizes private persons to bring actions against

the Secretary (or other regulatory authority) for failure to

perform a nondiscretionary duty under the Act.

52a

taken to relieve any harm and the results of those actions.

First Supplemental Order, Joint Appendix at 494-95.

Thus, we disagree with SOCM’s assertion that venue is

more appropriate in this district.

Under section 520(c) (1), the proper venue for this

action is the judicial district in which the cited mine

operations are located.” Since none of these mines is lo-

cated in the District of Columbia, venue is improper in

this district. We therefore conclude that the district court

erred in ruling that venue for this action was properly in

this district. Accordingly, we must reverse.

Before closing we note that at least on one occasion this

circuit has declined to reverse a district court decision for

lack of venue. In Whittier v. Emmet, 281 F.2d 24 (D.C.

Cir. 160), two individuals brought suit pursuant to the

Tucker Act, 28 U.S.C. § 1491, to recover money from the

United States. On appeal, this court ruled that the dis-

trict court had erroneously determined that venue was

proper in this district. The panel concluded, however,

that improper venue was harmless error because there

was no prejudice to either party. Jd. at 30-31. The only

real substantive issue in Whittier was whether the plain-

tiffs were entitled to prejudgment interest. As the court

noted, it made no real difference to the Government where

the issue was litigated.

We do not find the reasoning in Whittier applicable

here. We cannot conclude in the instant case that the

Secretary suffered no prejudice by litigeting the claim in

this district. As we noted earlier, there are potential site

specific issues involved in this case. Moreover, to find that

the venue ruling was harmless error would undermine

any policies Congress may have sought to promote when

7 We recognize that there may be no one single district in

which venue is proper. Thus, the claim may have to be

severed. See Sharp Electronics Corp. v. Hyman Cash Register

Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981).

53a

it chose to restrict venue in “[{a]ny action respecting a

violation of [the Act]. ... 30 U.S.C. § 1270(e) (1).

See United States v. Maryland Casualty Co., 573 F.2d

245, 247-48 (5th Cir. 1978). Thus, we conclude that the

district court’s decision must be reversed.®

III. CoNcLusIon

We conclude that the specific venue provision in section

520(c) (1) of the Act precludes venue in this district.

Accordingly, the district court’s decision is reversed.

It is so ordered.

*We note that since the time this case was argued, the

Department of Interior and Related Agencies Appropriations

Act of 1984, Pub. L. No. 98-146, 97 Stat. 919, was signed into

law. The House and Senate reports accompanying the two

versions of this Appropriations Act specifically noted the ap-

propriation of funds to enable the Department of the Interior

to comply with the terms of the district court’s order. H.R.

REP. No. 258, 98th Cong., 1st Sess. 40-41 (1983); S. REP. No.

184, 98th Cong., 1st Sess. 40 (1983). The Conference Report

accompanying the final version of that Act also noted that it

expected the Department to comply with the district court’s

order with the appropriated funds. H.R. REP. No. 399, 98th

Cong., Ist Sess. 20 (1988). We emphasize that we take no

position regarding the impact, if any, of today’s decision on

Congress’s action. We also note that our decision today does

not preclude the district court from considering a transfer of

this case to an appropriate district court pursuant to 28 U.S.C.

§ 1406(a) (1976). See Sharp Electronics Corp. v. Hayman

Cash Register Co., 655 F.2d 1228 (D.C. Cir. 1981).

54a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1991

CV 81-02134

No. 90-5374

SAVE OUR CUMBERLAND MOUNTAINS, INC.,

et al.

Manuel Lujan, Secretary of the Interior, et al.

BEFORE: Mikva, Chief Judge; Wald, Edwards, Ruth B.

Ginsburg, Silberman, Buckley, Williams, D.H.

Ginsburg, Sentelle, Henderson, and Randolph,

Circuit Judges

ORDER

Appellee’s Suggestion For Rehearing E'n Banc and the

responses thereto have been circulated to the full Court.

No member of the Court requested the taking of a vote.

Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that the suggestion

is denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPREE, CLERK

BY:

Robert A. Bonner

Deputy Clerk

55a

STATUTE INVOLVED

Section 520 of SMCRA states:

(a) Except as provided in subsection (b) of this section,

any person having an interest which is or may be ad-

versely affected may commence a civil action on his

own behalf to compel compliance with this Act—

(1)

(2)

against the United States or any other govern-

mental instrumentality or agency to the extent per-

mitted by the eleventh amendment to the

Constitution which is alleged to be in violation of

the provisions of this Act or of any rule, regulation,

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 pur-

suant to this title; or

against the Secretary or the appropriate State reg-

ulatory 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 Act which is not dis-

cretionary with the Secretary or with the appro-

priate State regulatory authority.

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the

parties.

(b) No action may be commenced—

(1) under subsection (a1) of this section—

(A) prior to sixty days after the plaintiff has given

notice in writing of the violation (i) to the Sec-

retary, (ii) to the State in which the violation

occurs, and (iii) to any alleged violator: or

(B) if the Secretary or the State has commenced

and is diligently prosecuting a civil action in a

(c)

(d)

(e)

56a

court of the United States or a State to require

compliance with the provisions of this Act, or

any rule, regulation, order, or permit issued

pursuant to this Act, but in any such action in

a court of the United States any person may

intervene as a matter of right; or

(2) under subsection (aX2) of this section prior to sixty

days after the plaintiff has given notice in writing

of such action to the Secretary, in such manner as

the Secretary shall by regulation prescribe, or to

the appropriate State regulatory authority, except

that such action may be brought immediately after

such notification in the case where the violation or

order complained of constitutes an imminent threat

to the health or safety of the plaintiff or would

immediately affect a legal interest of the plaintiff.

(1) Any action respecting a violation of this Act or the

regulations thereunder may be brought only in the

judicial district in which the surface coal mining

operation complained of is located.

(2) In such action under this section, the Secretary, or

the State regulatory authority, if not a party, may

intervene as a matter of right.

The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section, may

award costs of litigation (including attorney and expert

witness fees) to any party, whenever the court deter-

mines such award is appropriate. The court may, if a

temporary restraining order or preliminary injuncticn

is sought require the filing of a bond or equivalent

security in accordance with the Federal Rules of Civil

Procedure.

Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any of

(f)

the provisions of this Act and the regulations there-

under, or to seek any other relief (including relief

against the Secretary or the appropriate State regu-

latory authority).

Any person who is injured in his person or property

through the violation by any operator of any rule, reg-

ulation, order, or permit issued pursuant to this Act

may bring an action for damages (including reasonable

attorney and expert witness fees) only in the judicial

district in which the surface coal mining operation com-

plained of is located. Nothing in this subsection shall

affect the rights established by or limits imposed under

State Workmen’s Compensation laws.

30 U.S.C. § 1270 (1988).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.