Oklahoma Wildlife Federation v. Hodel

No. 85-C-964-C (N.D. Okla. August 6, 1986)

The court rules that § 520(a)(1) of the Surface Mining Control and Reclamation Act authorizes citizen suits against private or government operators that are in violation of a rule, regulation, order, or permit, but precludes suits against private operators that are in violation of the Act itself. The court therefore holds that it lacks jurisdiction over plaintiffs' suit against a coal company because there is insufficient evidence to establish that it is in violation of any rule, regulation, order, or permit.

[A related case appears at 17 ELR 20155.]

Counsel are listed at 17 ELR 20155.

[17 ELR 20156]

H. DALE COOK, Chief Judge.

SUPPLEMENTAL ORDER

This case is now before the Court for final determination following a nonjury trial heard July 15, 16 and 17. At the commencement of trial, defendant McNabb Coal Company, Inc. reasserted its motion for summary judgment brought pursuant to Rule 56 F.R.Civ.P. alleging that defendant McNabb is entitled to a judgment as a matter of law. At the conclusion of plaintiff's case in chief, defendant McNabb renewed its motion for summary judgment. The Court took defendant's motion under advisement.

The Court has now reviewed all pleadings, briefs and arguments of counsel. It has heard the testimony and reviewed exhibits admitted at trial and has studied applicable case law and the legislative history of 30 U.S.C. § 1201 et seq., the Surface Mining Control and Reclamation Act of 1977 (the Act). The Court being fully advised finds as follows.

In October of 1985, plaintiffs Oklahoma Wildlife Federation, Anchor Industries, Inc., Tulsa Rock Company and Sweetwater Coal Company filed suit against defendants Donald Hodel, Secretary of the Department of the Interior; Jed Christensen, Director of the Office of Surface Mining Reclamation and Enforcement; Gayle Townley, Deputy Chief Mine Inspector, Oklahoma Department of Mines; McNabb Coal Company, Inc., and McNabb Stone Company. The plaintiffs seek a declaratory judgment that McNabb is conducting a surface and mining operation within the meaning of 30 U.S.C. § 1291(28) of SMCRA, and final injunctive relief directing McNabb to refrain from conducting further coal mining until such time as McNabb obtains a coal mining permit.

On July 14, 1986 the Court entered summary judgment in favor of defendants Donald Hodel, Jed Christensen and Gayle Townley. The Court held that it lacked jurisdiction under 30 U.S.C. § 1270(a)(1) in that it is only applicable against persons or governmental entities engaged in coal mining or reclamation activities. Further the Court lacked jurisdiction under 30 U.S.C. § 1270(a)(2) since this Court's jurisdiction is limited to compelling the Secretary of the Department of Interior or the appropriate State regulatory authority to perform any nondiscretionary act or duty.

In its amended complaint, plaintiffs allegedly invoke the Court's jurisdiction under 30 U.S.C. § 1270(a)(1) against defendant McNabb. Under 30 U.S.C. § 1270(a)(1) a civil action can be instituted by any person having an interest which is or may be adversely affected,

(1) against the United States or any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution which is alleged to be in violation of the provisions of this chapter or of any rule, 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. 30 U.S.C. § 1270(a)(1) emphasis added.

The Court finds that paragraph (a)(1) first provides for an action againsta governmental entity engaged in coal mining or reclamation activities which is allegedly in violation of some substantive requirement of the Act or of any rule, regulation, or a permit issued pursuant to the Act. Section 1270(a)(1) also provides for an action against any other person who is in violation of any rule, order or permit issued pursuant to the Act, but does not provide for an action against persons who are in violation of the Act itself. The legislative history reveals that in the original House draft of 30 U.S.C. § 1270(a)(1) "any person" was defined to include the United States and other governmental instrumentalities or agencies and "any person" was subject to suit for violation of the provisions of the Act or the regulations promulgated thereunder. See H.R.Rept. No. 45, 94th Cong., 1st Sess. 35 (1975). In the Senate's debates, however, concern was expressed that under the draft language of § 1270(a)(1) a mine operator would be subject to suit where it was claimed that the permit or regulations under which he was lawfully mining were not in accord with the Act. In response to this concern, Senator Fannin introduced an amendment which deleted reference to the Act with respect to citizen suits against operators. See, 121 Cong.Rec. S6176 (daily ed. March 12, 1975). The Senator proposing the amendment stated:

Citizens' suits are retained in the amendments but are modified — consistent with other environmental legislation — to provide for suits against the regulatory agency to enforce the Act, and mine operators where violations of regulations or permits are alleged. 121 Cong. Rec. S6176 (daily ed. March 12, 1975) (emphasis added).

The Senate Conference Report further explained the distinction:

Subsection (a) assures, that no "operator" can be sued under this section if he is operating in compliance with all regulations, orders, and an approved permit, even though the regulating authority or the Secretary has failed to properly implement the Act. In such cases, the suit must be brought against the regulatory authority. The only exception to this provision occurs if the "operator" is itself a government agency or instrumentality, such as the Tennessee Valley Authority. S.Rept. No. 101, 94th Cong., 1st Sess. 84 (1975).

The Court finds that a Government agency may be sued under (a)(1) when it is the operator of a coal mine and is not in compliance with the Act. However, an action could not be brought against a private operator unless that private operator is in violation of a rule, regulation, order or permit.

After reviewing all the pleadings and the evidence presented at trial, the Court finds that plaintiffs have not shown the Court any legally enforceable rule, regulation order or permit in which McNabb is allegedly in violation. Rather, plaintiffs assert McNabb is in violation of the Act. The only rules or regulations offered at trial were offered by defendant McNabb. McNabb offered defendant's exhibit No. 45, the May 7, 1984 Advance Notice of Proposed Rulemaking and Request for Public Comment published by the Department [17 ELR 20157] of the Interior, Office of Surface Mines. McNabb also offered defendant's exhibit No. 46, the Guide to Operators and Permittees, published by the Department of Interior, Office of Surface Mines. Both exhibits were objected to by plaintiffs as not having "the force of law" and in no way supplementing or modifying the Act. After trial concluded, plaintiff filed a written objection to the admission into evidence of Defendant's exhibit No. 46. Further, the Court finds that defendant's exhibits Nos. 45 and 46 do not have the "force of law" and therefore do not provide controlling authority.

The Court finds that the evidence adduced at trial was insufficient to establish that defendant McNabb is in violation of "any rules, regulation, order or permit issued" pursuant to the Act and has therefore failed as a matter of law to state a cause of action for which relief can be granted. Although the Court took defendant McNabb's motion for summary judgment under advisement, the Court need not rule on summary judgment since the case has been submitted on the record following nonjury trial.

WHEREFORE, from the evidence submitted to the Court, the Court finds in favor of defendant McNabb Coal Company, Inc., and against the plaintiffs Oklahoma Wildlife Federation, Anchor Industries, Inc., Tulsa Rock Company, and Sweetwater Coal Company, on plaintiffs' claim brought pursuant to 30 U.S.C. § 1201 et seq., the Surface Mining Control and Reclamation Act of 1977.