Catron v. Babbitt, Civil Action No. 96-001B.

• Decision Date: 28 February 1997
• Docket Number: Civil Action No. 96-001B.
• Citation: 955 F.Supp. 627
• Parties: Harvey CATRON and Jo D. Molinary, Trustee of the Susan Pruitt Cloud Land Trust, Plaintiffs, v. Bruce BABBITT, Secretary, United States Department of the Interior, Defendant, and Powell Mountain Coal Company, Intervenor.
• Court: U.S. District Court — Western District of Virginia

955 F.Supp. 627

Harvey CATRON and Jo D. Molinary, Trustee of the Susan Pruitt Cloud Land Trust, Plaintiffs, v. Bruce BABBITT, Secretary, United States Department of the Interior, Defendant and Powell Mountain Coal Company, Intervenor.

Civil Action No. 96-001B.

United States District Court, W.D. Virginia, Big Stone Gap Division.

February 28, 1997.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM OPINION

WILSON, District Judge.

This is an action pursuant to 30 U.S.C. § 1276 of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"). The plaintiffs, Harvey Catron and Jo D. Molinary ("Catron and Molinary"), seek judicial review of an administrative decision ("the decision") rendered by the defendant Bruce Babbitt, Secretary of the Interior ("the Secretary"), through the Interior Board of Land Appeals ("IBLA" or "the Board"). The decision involved post-mining use and reclamation by intervenor Powell Mountain Coal Company ("Powell Mountain") of land known as the Pruitt Heirs Tract (or "the tract") located in Lee County, Virginia. The case is before this court on cross motions for summary judgment. The court grants summary judgment in favor of the Secretary and against Catron and Molinary and, therefore, finds it unnecessary to decide the issues raised by Powell Mountain.

I

The complicated series of events that form the basis for this suit began in 1990, when Powell Mountain misled the Virginia Division of Mined Land Reclamation ("DMLR") in seeking a permit to mine the Pruitt Heirs Tract.¹ DMLR subsequently revoked the permit and ordered Powell Mountain to reclaim the tract. Catron is a downstream landowner who enjoys hiking and camping on the tract. Molinary is a trustee for most of the surface owners. Molinary brought a citizen suit pursuant to 30 U.S.C. § 1270(f) (1988), and the court awarded damages against Powell Mountain arising out of violations of the SMCRA. Molinary agreed to withdraw her reclamation claims from that litigation in favor of pursuing administrative remedies.

On October 25, 1990, Catron and Molinary filed a citizens' complaint with the Office of Surface Mining ("OSM") pursuant to 30 U.S.C. § 1271(a)(1) (1988) alleging that, in reclaiming the tract, Powell Mountain left an unstable highwall and committed other violations of the Virginia Surface Mining Act. OSM issued a ten-day notice ("TDN") on November 1, 1990 and visited the site with DMLR officials one week later. In response, DMLR revoked Powell Mountain's permit and issued a cessation order, requiring the company to cease surface mining and to complete all reclamation "in accordance with applicable standards of the Virginia Coal Surface Mining and Reclamation Act" by March 1, 1991. On January 22, 1991, DMLR terminated that cessation order.

Catron and Molinary filed a second citizens' complaint on April 19, 1991, alleging that DMLR had wrongfully approved reclamation of the Pruitt Heirs tract. OSM issued a TDN on April 23, 1991. On May 1, 1991, DMLR responded that "all requirements have been met for reclamation at this stage of the operations" and that it would take no action against Powell Mountain. To evaluate DMLR's response, OSM's Big Stone Gap Field Office ("field office") requested technical assistance from OSM's Eastern Support Center ("ESC"), which inspected the tract and prepared a report. OSM Assistant Deputy Director Hatfield ("Hatfield") upheld DMLR in all respects, except as to actions concerning the outslope and highwall instability. The field office issued a TDN regarding these concerns. DMLR informed the field office that it had issued a "Revision Order Notice" to Powell Mountain. The field office agreed with ESC's determination that DMLR's response to the TDN was appropriate. Catron and Molinary sought informal review of the field office's decision with Hatfield on November 6, 1991.

On October 7, 1991, Catron and Molinary filed a third citizens' complaint alleging "Pond 5," located on the tract, was leaking. That day OSM issued a TDN to DMLR. On October 9, 1991, DMLR issued a notice of violation to Powell Mountain, giving them until October 28 to perform repairs. The field office inspected on November 21, 1991 and, six days later, notified DMLR that it had not taken "appropriate action" regarding Pond 5. A subsequent inspection found satisfactory reclamation, and OSM took no federal enforcement action. On January 6, 1992, Catron and Molinary amended their request for informal review to include the field office's decision not to issue a notice of violation to Powell Mountain concerning Pond 5.

The above issues were submitted to OSM, which decided on February 18, 1993, that DMLR had taken appropriate action. Hatfield found that Powell Mountain had used all available spoil to eliminate the highwall to the maximum extent practicable and that the roadway complied with the permit reclamation plans. With respect to Pond 5, she found that the revision to eliminate the pond was classified by DMLR as "insignificant," that the public notice requirements of the approved program did not apply, and that removal of the structure more than resolved Catron and Molinary's concerns. She noted that OSM properly took no enforcement action regarding Pond 5 because, when a violative condition ceases to exist, federal enforcement action is no longer required.

Catron and Molinary appealed that decision to the IBLA, which consolidated all of the above issues for review. More than three years later, Catron and Molinary submitted to the Board the report of Patrick M. Howard ("the Howard report"), a mining engineer they had retained to inspect the tract. Howard essentially disputed OSM's findings regarding the roadway. Powell Mountain submitted a rebuttal report ("the Casey report") contesting the Howard report. Catron and Molinary in turn submitted Howard's rebuttal report, which disputed the Casey report.

The IBLA issued its decision on November 30, 1995. The Board remanded the issue of highwall destabilization to OSM for want of a complete agency record. Regarding Pond 5, the Board determined that Catron and Molinary failed to show that either the state's action in allowing permit revision or its decision not to issue a notice of violation was arbitrary and capricious. The Board determined the DMLR's decision to approve an "improved roadway" was arbitrary and capricious and that the state should have required Powell Mountain to regrade the road and to use the excess spoil placed on the roadway to backfill the highwall. However, the IBLA found that, at the time OSM issued its decision, a stable area would have had been disturbed for only negligible recovery. Moreover, the Board concluded that Catron and Molinary were required to show through expert analysis that their proposed measures were better than, not merely different from, those undertaken and that the plaintiffs had not met this burden. Catron and Molinary then filed suit against the Secretary in this court and Powell Mountain moved to intervene.

II

Catron and Molinary argue that this court has jurisdiction pursuant to 30 U.S.C. § 1276(a)(2), which provides that "any other proceeding required to be conducted pursuant to section 554 of Title 5 shall be subject to judicial review...." The Secretary, on the other hand, rests jurisdiction on 30 U.S.C. § 1276(a)(1), which provides for judicial review of "[a]ny other action constituting rulemaking by the Secretary...."² The Secretary suggests that his policy of referring disputes to an administrative law judge constitutes rulemaking. The court is not convinced that the actions of the Secretary in this case constitute rulemaking and believes that the better basis for jurisdiction is 30 U.S.C. § 1276(a)(2). See, e.g., Bernos Coal Co. v. Lujan, 739 F.Supp. 1133 (E.D.Tenn. 1989); Moose Coal Co. v. Clark, 687 F.Supp. 244 (W.D.Va.1988). The court must hear a § 1276(a)(2) complaint solely on the record before the Secretary and "the Secretary's findings, if supported by substantial evidence on the record considered as a whole, shall be conclusive." 30 U.S.C. § 1276(b). See also Foster E. Sword, 138 IBLA 74 (Feb. 3, 1997). In this case, the Secretary reviewed OSM's decision under the "arbitrary and capricious" standard. 30 C.F.R. § 842.11(b)(1)(ii)(B)(2). Thus, if there is substantial evidence that his decisions were not arbitrary and capricious, the court must uphold the Secretary.

III

SMCRA protects surface landowners from surface coal mining operations. 30 U.S.C. § 1202(b). Congress charged the Secretary of the Interior with interpreting and enforcing SMCRA. To carry out this directive, the Secretary has promulgated certain rules and regulations. Congress also gave federal courts the power to review the agency's actions in certain circumstances. See, e.g., 30 U.S.C. § 1276(a)(1) and (a)(2). However, a reviewing court should defer to the agency's interpretation of those statutes and regulations and should not attempt to substitute its judgment for that of the agency. See Arkansas v. Oklahoma, 503 U.S. 91, 110, 112 S.Ct. 1046, 1058-59, 117 L.Ed.2d 239 (1992) (reviewing actions of the EPA). As the Supreme Court has noted, "[a] court reviewing an agency's adjudicative action should accept the agency's factual findings if those findings are supported by substantial evidence on the record as a whole. The court should not supplant the agency's findings merely by identifying alternative findings that could be supported by substantial evidence." Id. at 113, 112 S.Ct. at 1060 (citations omitted). See also Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).

This court sits in essentially an appellate role in reviewing the IBLA decision, which reviewed the actions and decisions of OSM. The Department of the Interior, and not this court, has the technical expertise to determine whether a site has been properly reclaimed.³ As long as there is at least substantial...