Holmes Limestone Co. v. Andrus, 80-3666
| Decision Date | 06 August 1981 |
| Docket Number | No. 80-3666,80-3666 |
| Citation | 655 F.2d 732 |
| Parties | , 11 Envtl. L. Rep. 20,977 HOLMES LIMESTONE CO., et al., Plaintiffs-Appellants, v. Cecil B. ANDRUS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. C. Johnston, III, J. Douglas Drushal, Critchfield, Critchfield, Critchfield & Johnston, Wooster, Ohio, for plaintiffs-appellants.
Marcus P. McGraw, Mark Squillace, Dept. of Interior, Washington, D. C., Myra Spicker, Indianapolis, Ind., Dirk D. Snel, Peter R. Steenland, Jr., Dept. of Justice, Washington, D. C., for defendants-appellees.
Before WEICK and MERRITT, Circuit Judges and ENSLEN, U. S. District Judge. *
This appeal is from a judgment of the District Court for the Northern District of Ohio, Eastern Division, dissolving a preliminary injunction which it had issued in favor of the appellants and then dismissing their complaint for declaratory and injunctive relief for lack of jurisdiction. In their complaint, the appellants had challenged the construction and application by the Secretary of Interior of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201, et seq. and Regulations with respect to appellants' mining operations on farms owned by Amish people near their private family burial plots which farms had been leased by them to appellant, Holmes Limestone, for the mining of coal in Holmes County, Ohio. Holmes Limestone contended that if said Act and Regulations were applicable and enforced in the manner attempted by the Secretary, this would constitute a taking of its property without due process of law in violation of the Fifth Amendment to the Constitution and would deprive it of the Equal Protection of the Laws in violation of the Fourteenth Amendment. 1
After granting the preliminary injunction in favor of Holmes, the district court, when it completed hearing the case on its merits, reluctantly decided that it had no jurisdiction to hear appellants' case, holding that the United States District Court for the District of Columbia had exclusive jurisdiction to hear it. In our opinion, the district court erred in holding that it was without jurisdiction and should have heard and decided the case on its merits. We reverse and remand.
Jurisdiction of the court was based on 28 U.S.C. §§ 1331, 2201, 2202; 30 U.S.C. § 1276(a)(1) and violations of the Fifth and Fourteenth Amendments to the Constitution.
The Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201, et seq., was enacted by the 95th Congress and signed into law on August 3, 1977. The Act provides a two-tiered system of regulation whereby an "interim" or "initial" program is to be followed by a system of permanent regulation.
Section 201 of the Act (30 U.S.C. § 1211) creates the Office of Surface Mining Reclamation and Enforcement (OSM) within the Department of the Interior. The Secretary of the Interior, through the OSM and its Director, is given the responsibility of administering and implementing the Act (30 U.S.C. § 1211(c)).
The Secretary is directed by 30 U.S.C. § 1251(a) to promulgate regulations governing the initial program and by § 1251(b) to promulgate the permanent regulatory program. Section 1251(a) directs the Secretary to promulgate the interim regulations "based on and incorporating the provisions set out in section 1252(c) of this title."
Section 1252 provides, in pertinent part:
§ 1252. Initial regulatory procedures State regulation. (a) No person shall open or develop any new or previously mined or abandoned site for surface coal mining operations on lands on which such operations are regulated by a State unless such person has obtained a permit from the State's regulatory authority.
Interim standards
(b) All surface coal mining operations on lands on which such operations are regulated by a State which commence operations pursuant to a permit issued on or after six months from August 3, 1977, shall comply, and such permits shall contain terms requiring compliance with the provisions set out in subsection (c) of this section. Prior to final disapproval of a State program or prior to promulgation of a Federal program or a Federal lands program pursuant to this chapter, a State may issue such permits.
Full compliance with environmental protection performance standards
(c) On and after nine months from August 3, 1977, all surface coal mining operations on lands on which such operations are regulated by a State shall comply with the provisions of subsections (b)(2), (b)(3), (b)(5), (b)(10), (b) (13), (b)(15), (b)(19), and (d) of section 1265 of this title or, where a surface coal mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no high-walls remaining, such operations shall comply with the requirements of section 1265(c)(4) and (5) of this title without regard to the requirements of section 1265(b)(3) or 1265(d)(2) and (3) of this title, with respect to lands from which overburden and the coal seam being mined have not been removed. Provided, however, That surface coal mining operations in operation pursuant to a permit issued by a State before August 3, 1977, issued to a person as defined in section 1291(19) of this title in existence prior to May 2, 1977 and operated by a person whose total annual production of coal from surface and underground coal mining operations does not exceed one hundred thousand tons shall not be subject to the provisions of this subsection except with reference to the provision of section 1265(d)(1) of this title until January 1, 1979.
Section 1252(e) provides for a federal enforcement program which operates during the interim period; that period during which federal and state enforcement procedures are co-existent. Section 1252(e)(1) gives the Secretary enforcement power over the interim standards of subsections (b) and (c) of Section 1252. As noted in the portion of § 1252(c) set out above, the interim jointly administered programs must comply with § 1265(b)(2), (b)(3), (b)(5), (b)(10), (b)(15), (b)(19) and (d).
On December 13, 1977, the Secretary promulgated the interim regulations. (42 Fed.Reg. 62677) These regulations are contained in 30 C.F.R. Parts 710 through 725 (1980). By their own terms, based upon the statutory grants of authority, the regulations are effective until permanent programs are approved in accordance with sections 503, 504, or 523 of the Act. In the Secretary's recitation of his authority, he states as follows:
§ 710.3 Authority.
(a) The Secretary is directed to implement an initial regulatory program within six months after the date of enactment of the Act in each State which regulates any aspect of surface coal mining under one or more State laws until a State program has been approved or until a Federal program has been implemented.
(30 C.F.R. § 710.3)
These regulations implement the above listed provisions of 30 U.S.C. § 1265, within the authority granted to the Secretary under 30 U.S.C. § 1252(c).
As stated above, interim enforcement of these standards is jointly handled by the OSM and the respective states. In fact, 30 C.F.R. § 720.11 states as follows:
§ 720.11 Enforcement authority.
Nothing in the Act or these regulations shall be interpreted to preclude a State from exercising its authority to enforce State law, regulations, and permit conditions, unless compliance with the State law, regulations, or permit condition will preclude compliance with these regulations.
In the instant case, Ohio's interim enforcement program had been approved by the Secretary and Ohio was enforcing the interim standards of 30 C.F.R. Parts 710 through 725.
An interesting event, however, occurred on December 31, 1979. On that date, by a notice published in the Federal Register (44 Fed.Reg. 77445) and by amendment to 30 C.F.R. § 701.1(b)(3), the Secretary declared that the regulations of 30 C.F.R. Part 761 would be applicable during the interim regulatory program. The regulations of Part 761 implement the standards and requirements of 30 U.S.C. § 1272 and are part of the permanent regulatory program authorized by 30 U.S.C. § 1251(b).
30 U.S.C. § 1272(e) provides, inter alia :
Prohibition on certain Federal public and private surface
coal mining operations
(e) After August 3, 1977, and subject to valid existing rights no surface coal mining operations except those to which exist on August 3, 1977, shall be permitted
(5) within three hundred feet from any occupied dwelling, unless waived by the owner thereof, nor within three hundred feet of any public building, school, church, community, or institutional building, public park, or within one hundred feet of a cemetery. Pub.L. 95-87, Title V, § 522, Aug. 3, 1977, 91 Stat. 507. (emphasis added.)
30 C.F.R. § 761 provides, inter alia :
§ 761.5 Definitions.
For the purposes of this part:
Cemetery means any area of land where human bodies are interred.
(44 FR 15341, Mar. 13, 1979, as amended at 44 FR 77447, Dec. 31, 1979)
By this amendment, the Secretary sought to enlarge and extend the coverage so as to embrace private family burial plots not theretofore regarded as cemeteries.
It is the application of 30 U.S.C. § 1272, as implemented by 30 C.F.R. § 761.5, to the appellants during the interim program which is challenged.
The facts as found by the district court were not in dispute. The answer of the defendants admitted thirty-five of the plaintiff's thirty-seven factual allegations.
Holmes Limestone is engaged in the mining of coal in Holmes County, Ohio, as well as in surrounding counties. It is a closely held corporation which employs 80 persons and derives 90 percent of its coal production from Holmes County.
There is a very high concentration of Amish people living in Holmes County. The Amish bury their dead...
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