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Mining appeal could turn on court's jurisdiction

The appeal of a federal court ruling to limit mountaintop removal may be decided on a legal issue that has nothing to do with coal mining or the environment.

In October 1999, Chief U.S. District Judge Charles H. Haden II ruled that a stream buffer zone rule prohibited coal operators from burying miles of streams with mining waste.

But the industry and the Underwood administration say a federal judge had no business hearing the mountaintop removal lawsuit.

Instead, they say that the suit should have been filed in state court. A circuit judge should have decided the case, they say.

On Thursday, the 4th U.S. Circuit Court of Appeals in Richmond, Va., will hear oral arguments in the appeal of Haden's ruling.

Coal operators and the state Division of Environmental Protection want the appeals court to overturn Haden.

In the process, they want the court to take away the right of citizens to go to federal court to force state regulators to comply with national environmental rules.

"This case could have, and should have, been brought in state court under state law," Ben Bailey, a lawyer for DEP, argued in his appeal of Haden's ruling.

Courts in other appeals circuits have split on similar cases. No matter how the 4th Circuit rules in the mountaintop removal case, the issue could be headed for the U.S. Supreme Court.

"This is a very hot issue," said one lawyer involved with the mountaintop removal case.

The right to sue

In 1977, Congress passed the Surface Mining Control and Reclamation Act, or SMCRA, to regulate strip mining.

Under the law, a federal agency - the U.S. Office of Surface Mining - would write nationwide mining rules.

States had two choices. They could allow OSM to police mining within their borders. Or, they could create their own regulatory agencies. If states created their own agencies, they had to write their own mining rules. Those rules must be as strong as the national rules that OSM writes.

When Congress wrote SMCRA, lawmakers gave citizens the right to sue OSM or state agencies in federal court when those agencies do not properly police strip mining.

Congress concluded, "that citizen suits can play in important role in assuring that regulatory agencies and surface operators comply" with strip mining laws.

In July 1998, the West Virginia Highlands Conservancy and other citizens filed a federal court lawsuit to try to curb mountaintop removal.

DEP and the coal industry tried to get Haden to throw out the case. They said it belonged in state court, not before a federal judge.

First, they said, the stream buffer zone rule is a state rule. When the state took over enforcement of strip mine rules, DEP wrote its own buffer zone rule. Disputes about the rule belong in state court, the agency and the industry said.

Second, they said, SMCRA allowed federal court lawsuits against state agencies, only "to the extent permitted by the Eleventh Amendment to the [U.S.] Constitution."

Generally, the Eleventh Amendment prohibits citizens from suing states in federal court. Under the amendment, states have "sovereign immunity" from such suits. So, the Conservancy can't sue DEP in federal court over the buffer zone rule, the state and the industry say.

In October 1998, Haden refused to throw out the case. He said that the federal court had jurisdiction.

Haden said that the mountaintop removal lawsuit fell within an exemption to the Eleventh Amendment. The exemption allows citizens to sue state officials in federal court to block continuing violations of federal law.

In the 1998 ruling, Haden said that citizens needed to be able to go to federal court over allegations of widespread violations by DEP.

"If plaintiffs were required to challenge each permit or permit application through the appropriate avenues of administrative review, such an allegation would be extremely difficult, if not impossible, to bring to the attention of the courts," Haden wrote.

Parallel standards

Over the last eight months, lawyers for all sides have filed hundreds of pages of briefs in the mountaintop removal appeal.

They've argued about stream segments and spoil disposal, buffer zones and overburden placement.

But the key issue could turn out to be the arcane matter of judicial jurisdiction - which courts should hear which cases.

In appeals briefs, lawyers for the coal industry insist that federal judges should stay out of disputes over state regulation of strip mines.

"It is true that a state's surface mining regulations generally must parallel federal standards under SMCRA to be approved by OSM," wrote R. Hewitt Pate, an industry lawyer.

"That fact, however, in no way detracts from the reality that an approved state program, and the regulations a state promulgates thereunder, are state law.

"In other words, West Virginia's approved state program constitutes state law, even though the West Virginia legislature patterned state law on federal standards."

In the 4th Circuit, judges have already ruled that federal lawsuits over state mining regulations are allowed.

Three years ago, in a 1997 case called Molinary vs. Powell Mountain Coal, the court ruled that state rules that comprise a federally approved state strip mine regulatory program are "issued pursuant" to federal. Therefore, those rules are enforceable in federal court, the 4th Circuit said.

Bailey, the DEP lawyer, argued in his appeal of Haden's ruling that the Molinary ruling was "not supported by a reasonable interpretation of SMCRA."

Bailey cited a 1987 Pennsylvania court ruling called Haydo vs. Amerikohl Mining Inc.

In that case, the court found that, "while Congress intended for SMCRA to impose minimum nationwide standards, it also recognized that the individual states should assume responsibility for regulating surface mining in their borders.

"The court concluded that treating state regulations as federal law would render meaningless the Congressional offer in SMCRA of exclusive jurisdiction to states obtaining approval of a regulatory program," Bailey wrote.

Split decisions

In July, another Pennsylvania judge issued a ruling similar to the Haydo decision that Bailey cited.

The Pennsylvania Federation of Sportsmen's Clubs and other groups sued the Pennsylvania Department of Environmental Protection. They alleged that the agency did not require coal companies to pay reclamation bonds adequate to clean up mine sites.

In July, U.S. District Judge Sylvia Rambo threw out the case.

Industry lawyers intervened in the case, and argued that it didn't belong in federal court. They said that state bonding regulations were state rules, not federal rules. Disputes about them belonged in state court. Rambo agreed.

"To allow a federal court to sit in judgment of a state concerning the state's duty to satisfy its own regulations seems to contradict the spirit of the Eleventh Amendment," she wrote.

"The fact that these precise claims can be brought in Pennsylvania's courts without implicating state sovereignty issues is further evidence that jurisdiction does not lie in federal court."

In appealing Haden's mountaintop removal decision, industry lawyers praised Rambo's ruling. They said that the Conservancy's "buffer zone claims should suffer the same fate as the claims in Pennsylvania Federation that similarly sought to enforce in federal court a state surface mining regulation."

Last month, Rambo however, appeared to reverse herself. She said that the reclamation bond case might belong in federal court after all.

Rambo cited a 1992 U.S. Supreme Court decision called Arkansas vs. Oklahoma. In that case, the Court said that state water quality rules are incorporated into federal law under the Clean Water Act.

In his rulings, Haden had cited that case as proof that a federal judge could hear the mountaintop removal case. Like state water quality rules under the Clean Water Act, state mining rules are federal law under SMCRA, Haden said.

In a Nov. 13 order, Rambo said that, if Haden was right, then her court might be able to hear the bonding case.

But, she cautioned, the Eleventh Amendment might still bar the case. Citizen group lawyers don't think so. They asked Rambo to allow them to appear that issue before Rambo decides the rest of the case.

In her Nov. 13 decision, Rambo agreed. The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear that case next year.

Citizen group lawyers hope the right to bring federal court cases is eventually protected.

"Congress put the citizen suit provision in the surface mining act for a reason - to allow citizens to enforce their rights in federal court," said Joe Lovett, lead lawyer for the citizens.

"In doing so, Congress allowed citizens to bring suit in front of federal judges who are lifetime appointees and not subject to political pressure," Lovett said.

"DEP's argument would lead to a situation in which citizens could not challenge the actions of state regulators taken pursuant to federal law and would lead to a system where different states enforce the federal law in different ways."

Tuesday in The Charleston Gazette: Federal regulators want to limit the size of valley fills. But they won't say how tight the limits should be.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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