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New mining decision raises questions

In 1997, three 4th Circuit Court of Appeals judges ruled that state mining regulations become federal law when the U.S. Office of Surface Mining approves them.

Under that ruling, in a case called Molinary vs. Powell, citizens could take lawsuits over lax strip mine enforcement to federal court.

Earlier this week, three 4th Circuit judges said that state mining rules aren't federal law after all.

Under the new decision, citizens can't sue state officials in federal court to enforce strip mine regulations.

Now, the 4th Circuit has two standing rulings that appear to say different things about the same legal issue. It isn't supposed to work this way, according to federal court rules.

In its own rules, the 4th Circuit says that only the full court - not a three-judge panel - may overturn a previous panel decision.

Only the full court, in a proceeding called an en banc rehearing, can overturn a previous panel decision. En banc comes from French, and means on the bench, or in full court.

"That's really sort of basic court structure," said Robert Jaspen, senior staff counsel for the 4th Circuit.

"You can't have two different rulings on the same issue by the same court," Jaspen said. "That's true of every federal appeals court that operates by panels."

In this week's ruling, Judge Paul V. Niemeyer overturned an October 1999 decision by Chief U.S. District Judge Charles H. Haden II. Haden had said that the state's stream buffer zone rule does not allow coal operators to dump waste rock and dirt into most streams. He blocked the state Division of Environmental Protection from approving more valley fills in perennial and intermittent streams.

Generally, the 11th Amendment to the U.S. Constitution prohibits federal court lawsuits against state regulators. States have sovereign immunity from such suits. But under the 1977 Surface Mining Control and Reclamation Act, citizens may sue state regulators in federal court only over alleged continuing violations of federal law.

Because Niemeyer said that state mining rules are not federal law, the lawsuit could not be filed in federal court. Niemeyer ruled that the citizens must go to state court instead. Judges Michael Luttig and Karen Williams joined in Niemeyer's decision.

Four years ago, Niemeyer was part of a three-judge panel that decided the Molinary case.

In that case, the panel ruled that state rules that comprise a federally approved strip mine regulatory program are "issued pursuant" to federal law. Therefore, those rules are enforceable in federal court, the panel said. Judges William Wilkins Jr. and Clyde Hamilton joined Niemeyer in that opinion.

DEP lawyer Ben Bailey argued in his mountaintop removal case brief that the current case is different from Molinary.

In Molinary, Bailey noted, the suit was filed against an individual coal operator. In the mountaintop removal case, the suit was filed against a state regulatory agency.

Bailey cited a Pennsylvania court ruling last year that state mining rules are not federal law for the purposes of deciding if sovereign immunity can be overcome. "The only court to decide this very issue held that SMCRA oversight does not transform state surface mining law into federal law so as to outweigh the state's sovereignty interests," Bailey wrote.

In their brief to the 4th Circuit, lawyers for the West Virginia Highlands Conservancy disagreed.

"If the requirements in a federally-approved State program are federal law for mine operators, they must also be federal law for the state agency that issued those requirements to regulate those operators," the citizen group lawyers wrote.

In his ruling this week, Niemeyer did not explain whether he believes the two situations are different or not.

The 41-page opinion released Tuesday mentions the Molinary case only once. That reference says simply that the federal strip mine law "confers on federal district courts subject matter jurisdiction over at least some sorts of claims."

In the wake of the 4th Circuit ruling, lawyers for the Conservancy are debating amongst themselves whether to ask for an en banc rehearing or try to go directly to the U.S. Supreme Court.

Jim Hecker, a lawyer with the Washington, D.C., group Trial Lawyers for Public Justice, said that some sort of appeal will be filed.

Hecker noted that, in 1977, Congress rejected two amendments that would have specifically outlawed citizen suits in federal court against state regulators.

"The mining industry has won in court what it lost in Congress," Hecker said Thursday.

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

348-1702.


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