Save Our Cumberland Mountains, Inc. v. Watt

No. 81-2134 (D.D.C. December 29, 1982)

The court denies a motion for reconsideration of its decision, 13 ELR 20284, and orders the Secretary of the Interior to assess and collect mandatory civil penalties under the Surface Mining Control and Reclamation Act (SMCRA). The court first rules that although the Office of Surface Mining (OSM) has completed a program of penalty assessment, the case is not moot so long as there is some reasonable expectation that the wrong could be repeated. Second, the court rules that venue of the action is proper. Finally, the court rules that it was proper to enter judgment for the plaintiffs before motions for summary judgment were filed because all issues of law were thoroughly briefed and no issues of fact were present. The court permanently enjoins the Secretary and the Director of OSM to enforce the litigate sections of SMCRA and to file bimonthly compliance reports.

Counsel are listed at 13 ELR 20284 — Ed.

[13 ELR 20531]

Parker, J.:

Order Denying Reconsideration

On September 30, 1982, this Court issued a Memorandum Opinion and Order granting judgment to the plaintiffs. It was held that section 518(h) of the Surface Mining Control and Reclamation Act of 1977 (the Act), 30 U.S.C. §§ 1201 et seq., 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 motion 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 Harris, Director of the Office of Surface Mining Reclamation and Enforcement and a defendant in this action, which states that the government has completed a program 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 concerning the assessment of civil penalties. Second, the government 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 inappropriate.

The government's mootness argument is limited in scope. The motion does not seek reconsideration of the basic holding 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 declaration. It clearly would be unavailing for the government to allege that the Court lacked jurisdiction over the proceeding when the government had contended, throughout this litigation, that section 518(h) imposed discretionary, rather than mandatory duties upon the Secretary. Voluntary cessation of illegal conduct renders a case moot 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. Califano, 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 compliance with the statute, injunctive relief is necessary to ensure that the defendants do not resume their flouting of section 518(h). In light of the Secretary's three-year disregard for the statute and regulations this Court concludes 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 ruling. 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 penalty 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.¹ The government's further description of "site-specific" factors related to compliance with 30 C.F.R. 723.15(b)(3) also lacks support. While that section provides the Secretary with discretion in selecting an appropriate enforcement action under 30 C.F.R. § 723.15(b)(2), the issue in this proceeding is the Secretary's failure to take any action under that regulation.

Finally, the Secretary argues that the Court erred in entering judgment for the plaintiff prior to the filing of motions for summary judgment. As the September 30th ruling stated, judgment was entered because the government, 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(b)(2) are mandatory or discretionary. Although it has moved for reconsideration, the government has not identified even one factual dispute which should have precluded 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 fulfills 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.

Order

In accordance with this Court's Memorandum Opinion of September 30, 1982, and upon consideration of Defendants' Motion for Reconsideration and Plaintiffs' Opposition thereto and the entire record herein, it is this 28th day of December, 1982, ADJUDGED, ORDERED and DECREED that:

1. Section 518(h) of the Surface Mining Control and Reclamation Act of 1977 imposes a mandatory duty upon the Secretary of the Interior to assess a civil penalty of not less than $750 per day against any coal mine operator subject to regulation under the Act who fails to correct a violation cited under Section 521(a) of the Act, 30 U.S.C. Section 1271(a);

2. Since the initiation of the instant suit, the Office of Surface Mining ("OSM") has assessed formerly unassessed failure-to-abate cessation orders and is hereby ordered to assess any remaining unassessed failure-to-abate cessation orders and proceed with collection activities on all such cases;

3. The defendants are permanently enjoined, and directed, to remain current on the timely assessment of penalties according to [13 ELR 20532] Section 518(h) of the Surface Mining Control and Reclamation Act of 1977 and regulations;

4. 30 C.F.R. 723.15(b)(2) imposes a mandatory duty upon the Secretary of the Interior and the Director of OSM to take enforcement action pursuant to Sections 518(e), 518(f), 521(a)(4) or 521(c) of the Surface Mining Control and Reclamation Act of 1977, against any coal mine operator subject to regulation under the Act who fails to correct a violation cited under Section 521(a) of the Act for more than thirty (30) days beyond the expiration of the period prescribed for its correction, and to do so within thirty (30) days thereof;

5. The defendants are permanently enjoined, and directed to take mandatory enforcement action pursuant to 30 C.F.R. 723.15(b)(2) (or, where applicable, the identical 30 C.F.R. 845.15(b)(2) — when the underlying violation has been issued during the permanent program). OSM is directed to review each of the enforcement files in which a cessation order has been issued and the violation remains unabated, and to determine the appropriate alternative enforcement action (including injunction, individual civil penalties, criminal action, suspension or revocation of permit) for any case determined to have been unabated after thirty (30) days. The defendants are directed to pursue immediately and diligently all such enforcement action as required to reduce and eliminate the backlog of pending cases, taking all such action as required by the regulation. Defendants are directed to allocate and commit sufficient personnel and resources to assure such results and they shall inform the Court of the level of resources allocated in the report required by paragraph 7 of this Order;

6. OSM will review each failure-to-abate cessation order identified in the review conducted pursuant to paragraph 5 of this Order and determine whether the cessation order has been previously terminated; review the file for each cessation order not previously terminated; and determine on the basis of factors set forth in the regulation whether to:

a. seek injunction under 521(c);

b. file a criminal action under 518(e);

c. assess and file action to charge the civil penalty against corporate officers under 518(f); and/or

d. seek suspension or revocation of the permit under 521(a)(4).

7. Beginning March 1, 1983, and continuing thereafter, the defendants shall file bi-monthly reports with the Court setting forth the actions taken by the Department in that time period to 1) assess and collect Section 518(h) civil penalties under the Court's Order and 2) to report on the alternative enforcement actions it has taken under paragraphs 5 and 6 of this Court's Order. This report will set forth all penalties assessed to date, when each was assessed and what actions have been taken to collect each penalty in the time period covered by the report. The report will further identify each cessation order which has not been terminated and what enforcement action has been taken as to the case. The plaintiffs shall have thirty (30) days from the filing of each report in which to review the actions of the Department to determine whether the Department has complied with the Court's Order, and to file any objections thereto with the Court. Plaintiffs may apply for an award of fees and expenses for work reasonably done in connection with the implementation of this Court's Order.

8. The Court will retain jurisdiction. Plaintiffs are entitled to an award of reasonable attorneys' fees and costs under Section 520(d) of the Surface Mining Control and Reclamation Act of 1977 for work done to date. Plaintiffs are directed to file an appropriate motion for award of fees and expenses, which motion will also include the amount claimed.

9. Defendants' motion for Reconsideration is denied.

1. The Harris affidavit recites that 1,196 failure-to-abate cessation orders were issued pursuant to § 521(a)(3), 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)(5), or (3) OSM lacked jurisdiction over the operation, or (4) the practice initially deemed a violation was actually in compliance with all permit conditions and provisions of the Act, or (5) the underlying notice of violation was not properly served. Id. Although the affidavit does not provide details on these factors, it would seem that none of the non-assessed violative operations contained characteristics 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.

2. 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. 82-5241 (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 951 (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 v. 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).