Farrell-Cooper Mining Co. v. U.S. Dep't of the Interior, s. 12–7045

• Decision Date: 05 September 2013
• Docket Number: Nos. 12–7045,12–7048.,s. 12–7045
• Parties: FARRELL–COOPER MINING COMPANY, Plaintiff–Appellant, v. U.S. DEPARTMENT OF THE INTERIOR; Office of Surface Mining, Reclamation and Enforcement; Sally Jewell, as the Secretary of the U.S. Department of the Interior ; Joseph Pizarchik, as the Director of the Office of Surface Mining, Reclamation and Enforcement, Defendants–Appellees, and Oklahoma Department of Mines, Defendant–Appellant. Interstate Mining Compact Commission; West Virginia Department of Environmental Protection; Commonwealth of Virginia; State of Alaska, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

728 F.3d 1229

FARRELL–COOPER MINING COMPANY, Plaintiff–Appellant,

v. U.S. DEPARTMENT OF THE INTERIOR; Office of Surface Mining, Reclamation and Enforcement; Sally Jewell, as the Secretary of the U.S. Department of the Interior ^*; Joseph Pizarchik, as the Director of the Office of Surface Mining, Reclamation and Enforcement, Defendants–Appellees,andOklahoma Department of Mines, Defendant–Appellant.Interstate Mining Compact Commission; West Virginia Department of Environmental Protection; Commonwealth of Virginia; State of Alaska, Amici Curiae.

Nos. 12–7045, 12–7048.

United States Court of Appeals, Tenth Circuit.

Sept. 5, 2013.

Stan D. Smith, Mitchell, Williams, Selig, Gates & Woodyard, Little Rock, AR (Brian A. Pipkin, Mitchell, Williams, Selig, Gates & Woodyard, Little Rock, AR; Thomas J. McGeady and Donna L. Smith, Logan & Lowry, Vinita, OK, with him on the briefs), for the Plaintiff–Appellant.

P. Clayton Eubanks, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Oklahoma City, OK (Mark Secrest, Chief Counsel, Oklahoma Department of Mines, Oklahoma City, OK, with him on the briefs), for the Defendant–Appellant.

Katherine J. Barton, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., (Ignacia S. Moreno, Assistant Attorney General, and Elizabeth A. Peterson, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C.; and John Austin, U.S. Department of the Interior, Office of the Solicitor, Knoxville, TN, with her on the briefs), for the Defendants–Appellees.

Joseph L. Jenkins, Senior Counsel, West Virginia Department of Environmental Protection, Charleston, WV; Kenneth T. Cuccinelli, II, Attorney General of Virginia, E. Duncan Getchell, Jr., Solicitor General of Virginia, Office of the Attorney General, Richmond, VA; Michael C. Geraghty, Attorney General of Alaska, Alaska Department of Law, Juneau, AK; and Gregory E. Conrad, Executive Director, Interstate Mining Compact Commission, filed an amicus curiae brief for Interstate Mining Compact Commission, West Virginia Department of Environmental Protection, Commonwealth of Virginia and State of Alaska.

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff–Appellant Farrell–Cooper Mining Company (“Farrell–Cooper”) and Defendant–Appellant Oklahoma Department of Mines (“ODM”) appeal the district court's dismissal of their claims for declaratory and injunctive relief against the Department of Interior; the Secretary of the Interior; the Office of Surface Mining, Reclamation and Enforcement (“OSMRE”); and the Director of OSMRE (collectively, “Federal Appellees”). We dismiss this appeal as unripe.

I

This dispute concerns reclamation requirements contained in surface coal mine permits for Farrell–Cooper's Liberty Mine # 5 and Liberty Mine # 6. The terms and administration of such permits are governed by the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201 et seq.

A

SMCRA provides for “a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs.” Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Under SMRCA, states may submit proposed regulatory programs to the Secretary of the Interior for approval. § 1253(a). Once a state has obtained approval of its program, it is said to have achieved “primacy.” State laws and regulations implementing SMCRA “become operative for the regulation of surface coal mining, and the State officials administer the program.” Bragg v. W. Va. Coal Ass'n, 248 F.3d 275, 288 (4th Cir.2001). States have “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” within their borders, § 1253(a), subject to three statutory exceptions, see § 1271(a)-(c).

Two of these exceptions are relevant to this case. Section 1271(a) addresses individual violations by a specific permittee, authorizing OSMRE to issue a notice to a state regulatory authority if it “has reason to believe that any person is in violation of ... any permit condition required by this chapter.” § 1271(a)(1). Upon receipt of this “ten-day notice” (“TDN”), a state must “take appropriate action to cause said violation to be corrected or ... show good cause” why the violation has not been corrected within ten days. § 1271(a)(1); see also Coteau Props. Co. v. Dep't of Interior, 53 F.3d 1466, 1473 (8th Cir.1995); 30 C.F.R. § 842.11(b)(1)(ii)(B)(1). Federal regulations define “good cause” to include circumstances in which “[u]nder the State program, the possible violation does not exist.” § 842.11(b)(1)(ii)(B)(4)(i). If a state fails to take appropriate action or show good cause, SMCRA requires that OSMRE “order Federal inspection.” § 1271(a)(1); see also§ 842.11(b)(1)(ii)(B)(1). Federal inspections that indicate a permittee is “in violation of any requirement of [SMCRA] or any permit condition required by [SMCRA,]” not accompanied by imminent danger to the public, result in the issuance by OSMRE of a notice of violation (“NOV”) to the permittee. § 1271(a)(3). The NOV sets “a reasonable time but not more than ninety days for the abatement of the violation and provid[es] opportunity for public hearing.” Id.

Section 1271(b) applies if OSMRE “has reason to believe” that a state regulatory agency has failed to enforce its state program effectively. § 1271(b). Under this provision, OSMRE must “after public notice and notice to the State, hold a hearing ... in the State within thirty days of such notice.” Id. “During the period beginning with such public notice and ending when such State satisfies [OSMRE] that it will enforce” SMCRA, enforcement authority is transferred to OSMRE. Id.

B

Both Liberty # 5 and Liberty # 6 are located in Haskell County, Oklahoma. Oklahoma is a primacy state, and ODM is responsible for carrying out the state's approved SMCRA program. 30 C.F.R. § 936.10; Okla. Admin. Code § 460:20–1–4. ODM approved Farrell–Cooper's permit application for Liberty # 5 in 2005; in 2009, it approved the Liberty # 6 permit application.

Farrell–Cooper alleges that both applications included “detailed maps showing the pre-mining contour of the areas and then maps showing the proposed post-mining contour and slopes.” It contends that, after completing operations at each mine, it began reclamation at both sites in full conformity with all permit specifications.

In an August 2010 report, OSMRE raised concerns regarding the reclamation of Liberty # 5 and Liberty # 6, particularlythe surface contour requirements. SMCRA requires mine operators “to restore the approximate original contour of the land[,]” subject to certain exceptions. § 1265(b)(3). “Approximate original contour” is defined in both federal and Oklahoma regulations as

that surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles and coal refuse piles eliminated.

30 C.F.R. § 701.5; Okla. Admin. Code § 460:20–3–5.

On January 10, 2011, OSMRE issued a TDN for Liberty # 6 stating that, based on federal inspections, the agency had reason to believe the mine failed to achieve approximate original contour. An analogous TDN issued on January 12, 2011 for Liberty # 5 raised similar concerns regarding the reclamation topography at that site.

ODM responded to both TDNs, contending inter alia that the determinations were premature given ongoing discussions between ODM and OSMRE regarding the definition of approximate original contour. In its answers, OSMRE's Tulsa Field Office stated that ODM's responses did not address the violations alleged and had not shown good cause for failure to take enforcement action. It therefore concluded that both of ODM's responses were arbitrary, capricious, and abuses of discretion.

ODM subsequently requested that the OSMRE Regional Director review and reverse the field office's decisions. On November 10, 2011, in an eight-page response, the Regional Director affirmed the field office's decision with respect to Liberty # 5. OSMRE issued an NOV for that mine on December 1, 2011. On December 11, 2011, the OSMRE Regional Director denied ODM's informal appeal of the TDN issued for Liberty# 6.¹ OSMRE issued an NOV for Liberty # 6 on May 18, 2012.

Farrell–Cooper applied for administrative review before the Department of Interior's Office of Hearings and Appeals to contest both NOVs. According to publicly available information from the Department of Interior docket, filings in the appeal of the Liberty # 5 NOV have occurred at least as recently as December 28, 2012.²See Farrell–Cooper Mining Co. v. Office of Surface Mining Reclamation & Enforcement, No. DV–2012–1–R (Dep't of Interior Dec. 28, 2012) (denying motion to bar admission of exhibits and witnesses).

C

In the midst of these administrative deliberations, Farrell–Cooper filed suit against the Federal Appellees in the United States District Court for the Eastern District of Oklahoma. It submitted an amended complaint on January 6, 2012, after OSMRE had issued an NOV against Liberty # 5 and denied ODM's informal appeal of the TDN issued for Liberty # 6, but prior to OSMRE's issuance of an NOV against Liberty # 6. The amended complaint named ODM as an additional defendant and requested a declaratory judgment ruling that ODM had authority over Farrell–Cooper's permits. It also asked for an injunction precluding OSMRE from enforcing the NOV issued against Liberty # 5 or proceeding further in the TDN process against Liberty # 6, among other requested relief. In a January 31, 2012 answer...