Nat'l Mining Ass'n v. Office of Hearings, Case No. 1:04–cv–00128 BJR.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Citation777 F.Supp.2d 164
PartiesNATIONAL MINING ASSOCIATION, Plaintiff–Petitionerv.OFFICE OF HEARINGS AND APPEALS, et al., Defendants.
Docket NumberCase No. 1:04–cv–00128 BJR.
Decision Date15 April 2011

777 F.Supp.2d 164

NATIONAL MINING ASSOCIATION, Plaintiff–Petitioner
v.
OFFICE OF HEARINGS AND APPEALS, et al., Defendants.

Case No. 1:04–cv–00128 BJR.

United States District Court, District of Columbia.

April 15, 2011.


[777 F.Supp.2d 165]

Thomas Cornell Means, Kirsten L. Nathanson, Joseph Michael Klise, Crowell & Moring LLP, Washington, DC, for Plaintiff–Petitioner.

[777 F.Supp.2d 166]

Ruth Ann Storey, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BARBARA JACOBS ROTHSTEIN, District Judge.

This matter comes before the court on cross motions for summary judgment. Plaintiff is the National Mining Association (“NMA”), the national trade association of the mining industry. Defendants are the Office of Hearings and Appeals (“OHA”), the U.S. Department of the Interior (the “Department”), and Kenneth Salazar, Secretary of the Department. OHA is a sub-agency of the Department and has as its purpose hearing and determining matters within the Department's jurisdiction. The Department's jurisdiction includes matters arising under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 101 et seq. (“SMCRA”).

On January 27, 2004, Plaintiff filed a complaint seeking judicial review of the November 28, 2003 “Final Rule” (68 Fed. Reg. 66723) published by OHA pertaining to regulations allocating the burden of proof in five types of administrative proceedings under the SMCRA. NMA seeks declaratory and injunctive relief. NMA filed a Motion for Summary Judgment. Defendants filed an opposition and a Cross Motion for Summary Judgment. While the motions for summary judgment were pending, OHA filed a Notice of Supplemental Authority, to which NMA responded. The action was reassigned on November 30, 2010, and is ripe for review. The parties and the court are in agreement that this matter must be resolved with reference to the briefing and the administrative record.

I. BACKGROUND
A. Applicable Statutes and Regulations
1. Administrative Procedure Act (“APA”)

The APA, 5 U.S.C. § 551 et seq., with some exceptions applies to all adjudications that are required by statute to be determined on the record after an opportunity for an agency-level hearing. 5 U.S.C. § 554. Section 556 provides that in such hearings, unless “otherwise provided by statute, the proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d).

2. Surface Mining Control and Reclamation Act and Corresponding OHA Implementing Regulations

In 1977, Congress enacted the SMCRA, 30 U.S.C. § 1201 et seq., to “establish a nationwide program to protect society and the environment from the adverse affects of surface coal mining operations.” 30 U.S.C. § 1202(a). The Office of Surface Mining Reclamation and Enforcement (“OSM”) is the entity charged with implementing and enforcing the SMCRA. 30 U.S.C. § 1211. Pursuant to the SMCRA, no entity may engage in a surface coal mining operation without first obtaining a permit from OSM. 30 U.S.C. § 1256(a). The statute further requires mine operators to abide by performance standards incorporated into the permits. See, e.g., 30 U.S.C. § 1265 (environmental protection performance standards). The SMCRA authorizes OSM to assess civil penalties for violations of permit, or other SMCRA, requirements. 30 U.S.C. § 1268(a) & (f). However, any such OSM decision may be appealed to the Secretary, and must include the opportunity for a public hearing conducted in accordance with the Administrative Procedure Act. 30 U.S.C. § 1268(b). There are five SMCRA provisions that are relevant to this case, each of which establishes

[777 F.Supp.2d 167]

a proceeding for the review of a particular type of agency action. In 1978, OHA issued regulations outlining the procedures to be used at proceedings conducted pursuant to the SMCRA. See 43 Fed. Reg. 34386 (1978). The relevant SMCRA provisions and the corresponding OHA implementing regulations are described below.

a. Proceedings To Review Notices of Violation or Cessation Orders (SMCRA § 521)

Section 525(a)(1) of the SMCRA, 30 U.S.C. § 1275(a)(1), provides as follows:

A permittee issued a notice or order by the Secretary pursuant to the provisions of subparagraphs (a)(2) and (3) of section 521 of this title [30 U.S.C. § 1271], or pursuant to a Federal program or the Federal lands program, or any person having an interest which is or may be adversely affected by such notice or order or by any modification, vacation, or termination of such notice or order, may apply to the Secretary for review of the notice or order within thirty days of receipt thereof or within thirty days of its modification, vacation, or termination. Upon receipt of such application, the Secretary shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing, at the request of the applicant or the person having an interest which is or may be adversely affected, to enable the applicant or such person to present information relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof. The filing of an application for review under this subsection shall not operate as a stay of any order or notice.

Under Section 525(a)(2), “[a]ny such hearing shall be of record and shall be subject to the APA § 554.”

OHA's implementing regulation for proceedings to review notices of violation or cessation orders, 43 C.F.R. 4.1171, provides that although OSM has the “burden of going forward to establish a prima facie case as to the validity” of the notice or order or its modification, vacation or termination; the “ultimate burden of persuasion” rests with the applicant for review

b. Civil Penalty Proceedings (SMCRA § 518)

Section 518(a) of the SMCRA, 30 U.S.C. 1268(a), provides that a permittee who violates the Act or a permit condition may be assessed a civil penalty. Section 518(b) provides that the penalty may only be assessed after the person charged with a violation has been given the opportunity for a public hearing conducted in accordance with Section 554 of the APA. Section 518(c) provides that the person charged may contest the amount of the penalty or the fact of the violation. Section 518(b) provides that, when there has been a hearing, “the Secretary shall ... issue a written decision as to the occurrence of the violation and the amount of the penalty which is warranted” and “shall consolidate such hearings with other proceedings under section 521” when appropriate.

When OHA originally adopted the regulation governing burdens of proof in civil penalty proceedings, 43 C.F.R. 4.1155, it allocated the burden of going forward to establish a prima facie case and the burden of persuasion to OSM, with respect to both the fact of violation and the amount of the penalty. 43 FR 34376, 34393 (Aug. 3, 1978). Ten years later, for a variety of reasons ( see 52 FR 38246–38247 (October 15, 1987)), OHA amended § 4.1155 to provide that “OSM shall have the burden of going forward to establish a prima facie case as to the fact of the violation and the amount of the civil penalty and the ultimate

[777 F.Supp.2d 168]

burden of persuasion as to the amount of the civil penalty.” A person who petitions for review of a proposed assessment of a civil penalty, however, has “the ultimate burden of persuasion as to the fact of the violation.”

c. Individual Penalty Proceedings (SMCRA § 518(f))

Section 518(f) of the SMCRA, 30 U.S.C. 1268(f), provides that when a corporate permittee violates a condition of its permit or fails or refuses to comply with any order issued under Section 521 or any order in a final decision by the Secretary (with certain exceptions), any director, officer, or agent of the corporation who wilfully and knowingly authorized, ordered, or carried out the corporation's violation or its failure or refusal to comply, “shall be subject to the same civil penalties ... that may be imposed upon a person” under section 518(a).

43 C.F.R. 4.1307(a) allocates to OSM the burden of going forward with evidence to establish a prima facie case that (1) the corporation violated a permit condition or failed or refused to comply with an order; (2) the individual was a director, officer, or agent of the corporation at the time of the violation; and (3) the individual acted wilfully and knowingly. Section 4.1307(b) imposes on the individual the ultimate burden of persuasion as to (1) whether the corporation violated a permit condition or failed or refused to comply with an order and (2) whether he or she was a director or officer at the time of the violation or refusal. Section 4.1307(c) imposes on OSM the ultimate burden of persuasion as to (1) whether the individual was an agent of the corporation and (2) the amount of the individual civil penalty.

d. Permit Suspension or Revocation Proceedings (SMCRA § 521(a)(4))

Section 521(a)(4) of the Act, 30 U.S.C. 1271(a)(4), provides as follows:

When, on the basis of a Federal inspection ..., the Secretary or his authorized representative determines that a pattern of violations of any requirements of this Act or any permit conditions required by this Act exists or has existed, and if the Secretary or his authorized representative also finds that such violations are caused by the unwarranted failure of the permittee to comply with any requirements of this Act or any permit conditions, or that such violations are wilfully caused by the permittee, the Secretary or his authorized representative shall forthwith issue an order to the permittee to show cause as to why the permit should not be suspended or revoked and shall provide opportunity for a public hearing. If a hearing is requested, the Secretary shall inform all interested parties of the time and place of the hearing. Upon the permittee's failure to show cause as to why the permit should not be suspended or revoked, the...

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2 practice notes
  • Coal River Energy, LLC v. U.S. Dep't of the Interior, Civil Action No. 11–1648(BJR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2013
    ...itself to apply to any action filed pursuant to the “arising after” exception. Nat'l Mining Ass'n v. Office of Hearings & Appeals, 777 F.Supp.2d 164, 173 (D.D.C.2011). Indeed, it makes little sense to restrict the initial challenges to the regulations to 60 days while allowing petitions bas......
  • Coal River Energy, LLC v. U.S. Dep't of the Interior, Civil Action No. 11-1648 (BJR)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2013
    ...itself to apply to any action filed pursuant to the "arising after" exception. Nat'l Mining Ass'n v. Office of Hearings & Appeals, 777 F. Supp. 2d 164, 173 (D.D.C. 2011). Indeed, it makes little sense to restrict the initial challenges to the regulations to 60 days while allowing petitions ......
2 cases
  • Coal River Energy, LLC v. U.S. Dep't of the Interior, Civil Action No. 11–1648(BJR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2013
    ...itself to apply to any action filed pursuant to the “arising after” exception. Nat'l Mining Ass'n v. Office of Hearings & Appeals, 777 F.Supp.2d 164, 173 (D.D.C.2011). Indeed, it makes little sense to restrict the initial challenges to the regulations to 60 days while allowing petitions bas......
  • Coal River Energy, LLC v. U.S. Dep't of the Interior, Civil Action No. 11-1648 (BJR)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 20, 2013
    ...itself to apply to any action filed pursuant to the "arising after" exception. Nat'l Mining Ass'n v. Office of Hearings & Appeals, 777 F. Supp. 2d 164, 173 (D.D.C. 2011). Indeed, it makes little sense to restrict the initial challenges to the regulations to 60 days while allowing petitions ......

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