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
When a federal appeals court heard oral arguments on a lower
court decision to limit mountaintop-removal coal mining, Coakley wanted to be
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.
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
Haden ordered the state Division of Environmental Protection not to
issue any more permits that allowed fills in perennial and intermittent
A week later, Haden suspended his order while DEP, the coal
industry and the United Mine Workers appealed to the 4th Circuit.
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
Lawyers and judges make it sound complicated. But jurisdiction
simply means which kinds of cases belong in which kinds of courts.
disputes about state law belong in state court. Arguments about federal law go to
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.
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.
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
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
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.
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."
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
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
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."