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Court could halt federal suits in mining case

RICHMOND, Va. - Last week, Doyle Coakley

drove more than six hours from his home in Webster County, W.Va., to

Richmond.

When a federal appeals court heard oral arguments on a lower

court decision to limit mountaintop-removal coal mining, Coakley wanted to be

there.

During the arguments, the 4th U.S. Circuit Court of Appeals questioned

whether the case belonged in federal court in the first place. Afterward, Coakley

wasn't very happy.

"I'm kind of worried," said Coakley, who has

fought Juliana Mining Co.'s strip operations near his home.

"It's possible

that we could lose our right to sue in federal court," Coakley said. "That

would be a big loss."

In questioning lawyers, a three-judge panel of the

4th Circuit focused on arguments that a federal district court in West Virginia did

not have jurisdiction over the case.

"What's so wrong with the state of

West Virginia regulating mining in its state?" asked Judge Paul Niemeyer.

"The idea is to have states write their own statutes when states say that they

want to do it."

On Oct. 20, 1999, Chief U.S. District Judge Charles H.

Haden II ruled that West Virginia's stream-buffer-zone rule prohibited coal

operators from dumping waste rock and dirt into perennial and intermittent

streams. Valley fills were allowed only in smaller, ephemeral streams, Haden

ruled.

Haden ordered the state Division of Environmental Protection not to

issue any more permits that allowed fills in perennial and intermittent

streams.

A week later, Haden suspended his order while DEP, the coal

industry and the United Mine Workers appealed to the 4th Circuit.

In legal

briefs, lawyers for the state and the industry argued that Haden did not have

jurisdiction over the case. UMW lawyers declined to sign on to this

argument.

Lawyers and judges make it sound complicated. But jurisdiction

simply means which kinds of cases belong in which kinds of courts.

Generally,

disputes about state law belong in state court. Arguments about federal law go to

federal court.

But what is a state law and what is a federal law? In the

mountaintop-removal case, that's where it gets complicated.

In 1977, Congress

passed the Surface Mining Control and Reclamation Act.

Lawmakers wanted

to protect the public and the environment from the adverse effects of strip mining.

Under SMCRA, Congress wrote a broad set of national strip-mine rules.

These

rules were to be enforced by states. The federal Office of Surface Mining was

supposed to make sure states did the job right.

As an added safeguard,

Congress gave citizens the right to sue state regulators in federal court,

"where there is alleged a failure of the [state] to perform any act or duty

under this Act which is not discretionary." Lawmakers believed that

"citizen suits can play an important role in assuring that regulatory agencies

and surface operators comply" with environmental rules, congressional

records show.

In his rulings, Haden concluded that this language gave him

jurisdiction over the mountaintop-removal case. Haden said that OSM had given

West Virginia authority to regulate strip mining in the state.

When OSM did that,

Haden said, the state's buffer-zone rule became "incorporated" into

federal law. A lawsuit over the rule belonged in federal court, the judge

said.

Haden cited a 1992 U.S. Supreme Court case called Arkansas vs.

Oklahoma. In that case, the judge said, the court ruled that state clean-water rules,

once approved, became incorporated into the federal Clean Water Act.

Judge

Michael Luttig questioned that reading of Arkansas vs. Oklahoma. Actually, Luttig

said, the court found that the state rules were "effectively incorporated"

into federal law and "have a federal character."

"There must

be, at a minimum, a clear incorporation," Luttig said. "The object here

is to determine whether the state provision - we won't call it a law - is federal law

through some mechanism."

Luttig and Niemeyer heard the oral argument

along with Judge Karen Williams.

Niemeyer quizzed DEP lawyer Ben Bailey

about whether OSM had approved West Virginia's state mining law and

regulations.

Bailey said that, until the appeal of Haden's ruling, OSM and other

federal regulators never questioned DEP's position that the buffer-zone rule did

not apply to valley fills.

"They have understood, known about,

acquiesced and acknowledged the way that Director [Michael] Castle and his

predecessors have regulated valley fills, "Bailey told the judge.

Niemeyer wondered whether citizens should have challenged OSM's failure to

correct the buffer zone, rather than directly suing the state in federal

court.

Under SMCRA, OSM may order state regulatory agencies to toughen their mining

rules or more strictly interpret existing rules.

"Congress intended for the state to be the exclusive regulator of these

mines, as long as the state has a state law," Niemeyer said. "If the feds

think the state does not have a citizen suit provision or requirements to

issue a permit, the feds can come right back in."

Jim Hecker, a citizens group lawyer with the firm Trial Lawyers for Public

Justice, said that was all true.

But, Hecker said, Congress also gave citizens the right to challenge state

regulators in federal court.

Before it approved SMCRA in 1977, Hecker said, Congress rejected two efforts

to amend the law to specifically prohibit such suits.

"The regulators are implementing federal law, and the regulated are

following federal law, either directly under a federal program or indirectly

under a federally approved state program," Hecker said. "No one may 'opt

out' of federal law and follow purely state law."

One section of SMCRA, Hecker said, allows citizen suits against state

regulators who do not comply with all provisions of that federal law.

Another provision of SMCRA, he said, says that states must properly

administer their permitting program.

A third provision, Hecker said, states that no permits may be issued if they

do not comply with all requirements of SMCRA, the federal mining regulations

and state mining regulations.

Those three provisions together, Hecker said, "allow citizens to act as

enforcers" through federal court lawsuits.

Niemeyer and Luttig cautioned those who attended Thursday's oral argument

not to read too much into their persistent questions about jurisdiction.

"Anything we said should not be read as an indication of where we're going

on it, because we're not sure where we're going on it," Niemeyer said. "It's

a very complicated case."

Luttig said, "Sometimes I like to play devil's advocate, so don't read too

much into this."

Still, lawyers in the case said the oral arguments made it obvious the

ruling may hinge on jurisdiction.

"It's pivotal," Hecker said. "Either there's jurisdiction or there's not."

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

348-1702.


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