483 F.Supp. 425 (W.D.Va. 1980), Civ. A. 78-0224, Virginia Surface Min. and Reclamation Ass'n, Inc. v. Andrus

Docket Nº:Civ. A. 78-0224
Citation:483 F.Supp. 425
Party Name:Virginia Surface Min. and Reclamation Ass'n, Inc. v. Andrus
Case Date:January 03, 1980
Court:United States District Courts, 4th Circuit

Page 425

483 F.Supp. 425 (W.D.Va. 1980)



Cecil D. ANDRUS, Secretary, U. S. Department of the Interior, et al., Defendants.

Civ. A. No. 78-0224-B.

United States District Court, D.C. Virginia

Jan. 3, 1980

Memorandum Opinion Jan. 21, 1980.

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John Kilcullen, Kilcullen, Smith & Heenan, Washington, D. C., Robert T. Winston, Mullins, Winston & Roberson, Norton, Va., Roger L. Chaffe, Asst. Atty. Gen., Richmond, Va., for intervenor State of Va.

Kenneth P. Asbury, Wise, Va., for intervenor Town of Wise, Va.

Andrew Walch, Washington, D. C., Robert T. Copeland, Abingdon, Va., for intervenor Town of St. Charles, Va.

Stephen Greenberg, Pennington Gap, Va., Robert L. Bushnell, St.Paul, Wise, Va., for intervenor Va. Citizens for Btr. Reclamation.


GLEN M. WILLIAMS, District Judge.

1. This action arises under the Constitution and statutes of the United States. This Court has jurisdiction of this action under Title 28 U.S.C. sections 1331 and 2201.


This is an action in which plaintiffs seek a judgment declaring that various provisions of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. ss 1201-1328, are unconstitutional and an injunction to prevent the Secretary of the Department of the Interior from enforcing those provisions. Plaintiffs, including intervenors, are the Virginia Surface Mining and Reclamation Association, Inc., which is a voluntary association of coal producers engaged in surface coal mining operations in the Commonwealth of Virginia, sixty-three member coal companies, four individual landowners, the Town of Wise, Virginia, and the Commonwealth of Virginia. Plaintiffs assert that the act is neither authorized by the commerce clause nor any other provision of the Constitution and is not rationally based; that the act is in contravention of the Tenth Amendment; that the act disproportionately affects the interests of southwest Virginia coal mine operators and is not rationally based and is, therefore, in violation of the equal protection and substantive due process guarantees of the Fifth Amendment; that the act constitutes a taking of private property without just compensation in violation of the Fifth Amendment; and that certain enforcement provisions of the act violate the procedural due process requirement of the Fifth Amendment. A trial on the merits having been concluded, the matter is now before the court for final disposition.

The Surface Mining Act is a comprehensive statute designed to provide a set of national environmental performance standards to be applied principally to coal surface mining operations and to be enforced by the state with backup authority in the Department of the Interior, acting through the newly created Office of Surface Mining Reclamation and Enforcement. The act establishes a two-tier regulatory program designed to implement its objectives. Section 501(a) of the act, 30 U.S.C. s 1251(a), required the Secretary to promulgate regulations establishing an interim regulatory program for surface coal mining and reclamation performance standards based on and incorporating the provisions set out in s 502(c) of the act, 30 U.S.C. s 1252(c), and any other provisions that the act makes immediately effective. The performance standards required by the act during this first-tier interim regulatory phase, which is now in effect, include provisions for the restoration of land to its prior condition, restoration of land to its approximate original contour, segregation and stabilization of topsoil, minimization of disturbances to the hydrologic balance and to water quality, the construction of coal mine waste piles used as dams and embankments, the use of explosives, revegetation of mined areas, and spoil disposal. s 515(b), 30 U.S.C. s 1265(b). See note 14 infra. New surface coal mining

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operations commencing on or after February 3, 1978, were required to comply with the performance standards of the interim regulations when the operations began and all surface mining operations that commenced prior to February 3, 1978, with certain limited exceptions, were required to comply with the performance standards of the interim program by May 3, 1978. s 502(c), 30 U.S.C. s 1252(c). The second-tier regulatory program, the permanent program, is not scheduled to go into effect until June 3, 1980, and is, therefore, not in issue.

In addition to establishing environmental performance standards applicable to all surface mining operations, Title IV of the act, ss 401-413, 30 U.S.C. ss 1231-1243, establishes an abandoned mine reclamation program. In the exercise of its discretion, however, the court will not grant declaratory judgment as to the provisions of that title. While plaintiffs have launched a broad-based constitutional attack on the act in its entirety, the thrust of their challenge has been directed particularly to the constitutionality of Title V of the act, ss 501-529, 30 U.S.C. ss 1251-1279, which sets forth the authority to regulate surface mining, the environmental protection standards, and the pertinent procedural and enforcement mechanisms of the act. Very little, if any, challenge has been mounted to the provisions for abandoned mine reclamation. The issues involved in plaintiff's challenge to Title V, although similar in certain respects, are clearly separable from the issues involved in plaintiffs' challenge to Title IV. Likewise, the provisions of each title are such that constitutional questions regarding one do not of necessity implicate the other. Furthermore, it is the expressed intention of Congress that the provisions of the act be treated as severable so that a determination that any particular provision is invalid will leave intact the remainder:

If any provision of this Act or the applicability thereof to any person or circumstances is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.

Title VII, s 707, 30 U.S.C. s 1297. As the present action is one for declaratory relief under 28 U.S.C. s 2201, the granting of relief rests in the sound discretion of the trial court exercised in the public interest. Brillhart v. Excess Insurance Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). It is within the discretion of the district court, therefore, to deny declaratory relief as to any matter which the court finds not to be clearly articulated. See Public Affairs Press v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962); Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1948). As the court finds the questions concerning Title V of the act to be capable of resolution without regard to Title IV, and as the court finds the challenges to the latter to be less than clearly presented, declaratory relief as to the validity of Title IV will be denied.



Defendants contend that the suit has been improperly brought before this court because plaintiffs have not exhausted their administrative remedies. This action, however, is a direct constitutional challenge to Title V of the act. There is no need to exhaust administrative remedies since neither administrative law judges nor review boards have jurisdiction to decide constitutional issues. See, e. g., Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Virginia Chapter Associated General Contractors v. Kreps, 444 F.Supp. 1167, 1179 (W.D.Va.1978). Therefore, this action has been properly brought under 28 U.S.C. s 1331 for this court to decide the constitutionality of the act.

Defendants also argue that the action is untimely because plaintiffs' claims are not ripe for adjudication since the permanent program phase of the act's regulatory program will not be in force until 1980. The plaintiffs are primarily attacking the

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requirement that the steep slopes of Virginia be restored to their approximate original contour after being surface mined. Title V, s 515(d)(2), 30 U.S.C. s 1265(d)(2). This provision is in full force and effect at this time. In addition, the sanctions for noncompliance with this provision are also in effect. The plaintiffs are presently aggrieved by operation of the act, and, therefore, the constitutional issues are ripe to be decided. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81-82, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947).



Plaintiffs maintain that the act, "in purporting to regulate the use of private, non-federal lands within a state," exceeds the power of Congress to regulate interstate commerce. This court finds that Congress' enactment of the federal surface mining act is within the scope of the commerce clause, but is unconstitutional because it transcends the constitutional barrier imposed by the Tenth Amendment. See Part III infra.

This court must defer to the congressional finding in s 101(c) of the act, 30 U.S.C. s 1201(c), that surface coal mining has adverse effects on commerce. 1 When faced with a challenge to the commerce power of Congress to enact particular legislation, a court may neither examine the motive or purpose behind the legislation, United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 85 L.Ed. 609 (1941), nor substitute its own judgment for that of the Congress. See generally, Noble State Bank v. Haskell, 219...

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