Court could halt federal suits in mining case


RICHMOND, Va. - Last week, Doyle Coakleydrove more than six hours from his home in Webster County, W.Va., toRichmond.
When a federal appeals court heard oral arguments on a lowercourt decision to limit mountaintop-removal coal mining, Coakley wanted to bethere.During the arguments, the 4th U.S. Circuit Court of Appeals questionedwhether the case belonged in federal court in the first place. Afterward, Coakleywasn't very happy."I'm kind of worried," said Coakley, who hasfought Juliana Mining Co.'s strip operations near his home."It's possiblethat we could lose our right to sue in federal court," Coakley said. "Thatwould be a big loss."
In questioning lawyers, a three-judge panel of the4th Circuit focused on arguments that a federal district court in West Virginia didnot have jurisdiction over the case."What's so wrong with the state ofWest 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 coaloperators from dumping waste rock and dirt into perennial and intermittentstreams. Valley fills were allowed only in smaller, ephemeral streams, Hadenruled.Haden ordered the state Division of Environmental Protection not toissue any more permits that allowed fills in perennial and intermittentstreams.A week later, Haden suspended his order while DEP, the coalindustry and the United Mine Workers appealed to the 4th Circuit.In legalbriefs, lawyers for the state and the industry argued that Haden did not havejurisdiction over the case. UMW lawyers declined to sign on to thisargument.Lawyers and judges make it sound complicated. But jurisdictionsimply 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 tofederal 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, Congresspassed the Surface Mining Control and Reclamation Act.Lawmakers wantedto 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.Theserules were to be enforced by states. The federal Office of Surface Mining wassupposed 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 dutyunder this Act which is not discretionary." Lawmakers believed that"citizen suits can play an important role in assuring that regulatory agenciesand surface operators comply" with environmental rules, congressionalrecords show.In his rulings, Haden concluded that this language gave himjurisdiction over the mountaintop-removal case. Haden said that OSM had givenWest Virginia authority to regulate strip mining in the state.When OSM did that,Haden said, the state's buffer-zone rule became "incorporated" intofederal 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.JudgeMichael Luttig questioned that reading of Arkansas vs. Oklahoma. Actually, Luttigsaid, the court found that the state rules were "effectively incorporated"into federal law and "have a federal character.""There mustbe, at a minimum, a clear incorporation," Luttig said. "The object hereis to determine whether the state provision - we won't call it a law - is federal lawthrough some mechanism."Luttig and Niemeyer heard the oral argumentalong with Judge Karen Williams.Niemeyer quizzed DEP lawyer Ben Baileyabout whether OSM had approved West Virginia's state mining law andregulations.Bailey said that, until the appeal of Haden's ruling, OSM and otherfederal regulators never questioned DEP's position that the buffer-zone rule didnot apply to valley fills."They have understood, known about,acquiesced and acknowledged the way that Director [Michael] Castle and hispredecessors have regulated valley fills, "Bailey told the judge.Niemeyer wondered whether citizens should have challenged OSM's failure tocorrect the buffer zone, rather than directly suing the state in federalcourt.Under SMCRA, OSM may order state regulatory agencies to toughen their miningrules or more strictly interpret existing rules."Congress intended for the state to be the exclusive regulator of thesemines, as long as the state has a state law," Niemeyer said. "If the fedsthink the state does not have a citizen suit provision or requirements toissue a permit, the feds can come right back in."Jim Hecker, a citizens group lawyer with the firm Trial Lawyers for PublicJustice, said that was all true.But, Hecker said, Congress also gave citizens the right to challenge stateregulators in federal court.Before it approved SMCRA in 1977, Hecker said, Congress rejected two effortsto amend the law to specifically prohibit such suits."The regulators are implementing federal law, and the regulated arefollowing federal law, either directly under a federal program or indirectlyunder a federally approved state program," Hecker said. "No one may 'optout' of federal law and follow purely state law."One section of SMCRA, Hecker said, allows citizen suits against stateregulators who do not comply with all provisions of that federal law.Another provision of SMCRA, he said, says that states must properlyadminister their permitting program.A third provision, Hecker said, states that no permits may be issued if theydo not comply with all requirements of SMCRA, the federal mining regulationsand state mining regulations.Those three provisions together, Hecker said, "allow citizens to act asenforcers" through federal court lawsuits.Niemeyer and Luttig cautioned those who attended Thursday's oral argumentnot to read too much into their persistent questions about jurisdiction."Anything we said should not be read as an indication of where we're goingon it, because we're not sure where we're going on it," Niemeyer said. "It'sa very complicated case."Luttig said, "Sometimes I like to play devil's advocate, so don't read toomuch into this."Still, lawyers in the case said the oral arguments made it obvious theruling 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 call348-1702.
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