M.L. Johnson Family Props., LLC v. Jewell

• Decision Date: 13 June 2014
• Docket Number: Civil No. 14–78–ART.
• Citation: 27 F.Supp.3d 767
• Parties: M.L. JOHNSON FAMILY PROPERTIES, LLC, Plaintiff, v. Sally JEWELL, Secretary of the Interior, Defendant, and Premier Elkhorn Coal Company, Intervening Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

27 F.Supp.3d 767

M.L. JOHNSON FAMILY PROPERTIES, LLC, Plaintiff,

v. Sally JEWELL, Secretary of the Interior, Defendant,andPremier Elkhorn Coal Company, Intervening Defendant.

Civil No. 14–78–ART.

United States District Court, E.D. Kentucky, Southern Division, Pikeville.

Signed June 13, 2014

Motion granted in part and denied in part. Joe F. Childers, Joe F. Childers & Associates, Lexington, KY, Mary Varson Cromer, Whitesburg, KY, for Plaintiff.

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

Property rights matter. So too do the efforts of coal companies: They offer employment to millions and provide affordable energy to consumers. Sometimes, a company's interest in conducting mining operations will leave it at odds with the owner of the surface estate. In such situations, should the law prefer the surface owner or the coal company? The Constitution wisely leaves such questions of policy to the States and the elected branches, not the Courts. And here, the States and the political branches have spoken with one voice: Coal companies must comply with certain minimum permitting requirements before they may mine a surface owner's estate. Because the coal company in this case failed to comply with those minimum requirements, it must immediately cease mining the plaintiff's land.

But did Elkhorn really submit the consent required by § 1260(b)(6)(A)? That depends on how one reads “of the surface owner.” The six individuals who are members of the plaintiff in this case hold a majority of the parcel as tenants-in-common, and they never consented to the surface mining of their land. Pike Letcher Land Company owns 25% of the parcel as a tenant-in-common with the plaintiff, and it expressly consented to surface mining. What result when the surface estate has multiple owners, some of whom consent and some of whom do not? Does the consent of “a” surface owner satisfy § 1260(b)(6)(A)?

At first blush, the Act is silent on this score. It envisions only “the surface owner.” Nevertheless, well-established canons of statutory interpretation all point to the same conclusion: Subsection (A) requires the consent of all surface owners. The consent of “a” surface owner does not suffice.

A. When A Term Appears Multiple Times In The Same Act, It Usually Means The Same Thing In Both Places.

Although the term “surface owner” in § 1260 is undefined, that phrase carries a particular meaning in a different section of the Act. Section 1304 defines the rights of surface owners on federal lands. 30 U.S.C. § 1304(e). It provides that: “For the purpose of this section the term ‘surface owner’ means the natural person or persons ... who [have various interests in the surface estate].” Id. (emphasis added). The definition applies by its terms to § 1304 only, but it still provides important guidance for interpreting § 1260. “[W]ords repeated in different parts of the same statute generally have the same meaning.” Law v. Siegel, ––– U.S. ––––, 134 S.Ct. 1188, 1195, 188 L.Ed.2d 146 (2014) (applying 11 U.S.C. § 503(b)'s definition of “administrative expenses” to the same phrase in § 522(k)). If Congress intended to depart from that canon in the Act, it left no trail of bread crumbs suggesting as much to the curious reader. Section 1304's definition of “surface owner” to include the plural thus suggests that the same phrase in § 1260 also encompasses the plural where there are multiple owners—meaning that an applicant in such a case must submit the written consent of “the surface owners.”

B. The Singular Presumptively Includes The Plural.

The phrase “surface owner” presumptively includes the plural “surface owners.” The Dictionary Act provides rules for interpreting “any Act of Congress, unless the context indicates otherwise.” 1 U.S.C. § 1. The first of those rules is that “words importing the singular include and apply to several persons, parties or things.” Id.; see also Central & S. Motor Freight Tariff Ass'n, Inc. v. United States, 843 F.2d 886, 894 (6th Cir.1988) (rejecting an argument because it ignored “a basic principle of statutory interpretation—that the singular includes the plural....”). So, absent some statutory context suggesting that Congress intended the singular to exclude the plural here, “the surface owner” should be read to mean “the surface owners” in cases where there is more than one.

Although there is some such contextual evidence, it is too weak to carry the day. Section 1257 requires an applicant to list “every legal owner of record of the property (surface and mineral),” and “the names and addresses of the owners of record of all surface and subsurface areas adjacent to any part of the permit area.” 30 U.S.C. § 1257(b)(1), (2). So, the argument goes, Congress knew how to refer to plural owners when it wanted to. Neither passage, however, is analogous to § 1260(b)(6)(A), which imagines a single surface estate. Section 1257(b)(1) refers to the owners of both a mineral estate and a surface estate, so its use of the plural may well be consistent with § 1260(b), as it simply envisions one owner of the surface estate and a different owner of the mineral estate. So too with § 1257(b)(2), which refers to the several “surface and subsurface areas” surrounding the parcel that the applicant is applying to mine. Neither section uses the plural to refer to the owners of a single mineral or surface estate. These passages therefore cannot overcome the understanding prescribed by the Dictionary Act—particularly when that understanding is confirmed by § 1304's definition.

C. Congress Employed The Definite Article In Section 1260.

Congress's use of the definite article (“ the surface owner”) indicates that the consent of “a” surface owner cannot suffice. See 30 U.S.C. § 1260(b)(6)(A). “Unlike ‘a’ or ‘an,’ that definite article suggests specificity.” Noel Canning v. N.L.R.B., 705 F.3d 490, 500 (D.C.Cir.2013). If Congress meant to require the consent of “a surface owner,” then it could simply have said that. Indeed, doing so would have carried at least one additional perk: Curious readers would not have had to guess whether the term “surface owner” imported the plural, for the consent of one surface owner (whether he was the only one or not) would always suffice. But Congress did not use that term, and its use of the definite article fits smoothly even if “the surface owner” is read to mean “the surface owners.” Words have meaning—even small ones like “the.” The Court has no authority to ignore the precise phrasing Congress selected.

D. The Secretary's Contrary Interpretation Is Implausible.

Despite the three signs pointing in the same direction, the Secretary contends that § 1260(b)(6)(A) actually requires only the amount of consent required under applicable State law. Because Kentucky's common law of property allows one tenant-in-common to consent to surface mining on an entire parcel, the Secretary concludes that the consent of one tenant-in-common also suffices to satisfy § 1260(b)(6)(A).

The Secretary's argument is unpersuasive—when Congress meant to punt to State law, it did so expressly. Indeed, it did so within the very same sentence in which it used the phrase “the surface owner.” Section 1260(b)(6)(C), provides that if the conveyance is silent as to surface mining, then “the surface-subsurface legal relationship shall be determined in accordance with State law ....” (Emphasis added). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (alteration omitted). That presumption seems particularly apt where the relevant difference occurs within the same breath. The canons discussed above and the implausibility of the Secretary's view combine to confirm that § 1260(b)(6)(A) requires the consent of all the surface owners when there is more than one. Therefore, § 1260(b) prohibited Kentucky from issuing Elkhorn its permit based on the consent of the Pike Letcher Land Company only.²

III. The Plaintiff Is Entitled To A Preliminary Injunction Ordering The Secretary To Inspect Elkhorn's Permit.

To review: The Secretary has a mandatory duty to intervene when she learns that a person is mining in violation of one of the Act's “permit condition[s].” 30 U.S.C. § 1271(a)(1). Kentucky's issuance of Elkhorn's permit violated the Act's minimum requirements, because Elkhorn submitted the consent of one surface owner only, when § 1260(b)(6)(A) required it to submit the consent of all the surface owners. The plaintiff sued immediately after notifying the Secretary of the problem, and the usual 60–day waiting period does not bar this suit.

So what remedy does the Act prescribe in a situation like this? Usually, the first step is for the Secretary to inform the State regulatory authority of the violation. 30 U.S.C. § 1271(a)(1). The Secretary must immediately order an inspection of the relevant mining operation, however, if the plaintiff provides “adequate proof that an imminent danger of significant environmental harm exists and that the State has failed to take appropriate action.” Id. Kentucky has taken no action to cure the violation, because it shares the Secretary's reading of § 1260(b)(6)(A). And although a permitting violation might not be thought to pose any risk of environmental harm, the Secretary's regulations provide otherwise. “Surface coal mining operations conducted by any person without a valid surface coal mining permit constitute a condition or practice which causes ... significant imminent environmental harm....” 30 C.F.R. § 843.11(a)(2). Per the Secretary's own rules, she must therefore immediately order an inspection of Elkhorn's mining operation, because it is mining pursuant to an invalid permit.

Or at least a plain reading would...