New Mexico ex rel. Energy and Minerals Dept., Min. and Minerals Div. v. U.S. Dept. of Interior

• Decision Date: 05 June 1987
• Docket Number: No. 85-6165,85-6165
• Citation: 820 F.2d 441
• Parties: , 261 U.S.App.D.C. 33, 8 Fed.R.Serv.3d 235, 17 Envtl. L. Rep. 21,104 NEW MEXICO ex rel. ENERGY AND MINERALS DEPARTMENT, MINING AND MINERALS DIVISION v. U.S. DEPARTMENT OF the INTERIOR, Donald P. Hodel, Secretary of the Interior, and Jed Christianson, Acting Director, Office of Surface Mining Reclamation and Enforcement, Intervening Defendants, Navajo Tribe of Indians, Appellant, National Coal Association American Mining Congress.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 441

820 F.2d 441

26 ERC 1061, 261 U.S.App.D.C. 33, 8

Fed.R.Serv.3d 235,

17 Envtl. L. Rep. 21,104

NEW MEXICO ex rel. ENERGY AND MINERALS DEPARTMENT, MINING AND MINERALS DIVISION v. U.S. DEPARTMENT OF the INTERIOR, Donald P. Hodel, Secretary of the Interior, and Jed Christianson, Acting Director, Office of Surface Mining Reclamation and Enforcement Intervening Defendants Navajo Tribe of Indians, Appellant National Coal Association American Mining Congress.

No. 85-6165.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 27, 1986.

Decided June 5, 1987.

Appeal from the United States District Court for the District of Columbia (Civil No. 84-3572).

Paul E. Frye, Crownpoint, N.M., with whom M. Frances Ayer, Washington, D.C., was on brief, for appellant.

Martin W. Matzen, Atty., Dept. of Justice, with whom Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., was on brief, for appellee, Dept. of Interior.

A. Raymond Randolph, Sp. Asst. Atty. Gen., for State of New Mexico, with whom Mary Ann Lunderman, Sp. Asst. Atty. Gen., Santa Fe, N.M., for New Mexico Energy and Minerals Dept., was on brief, for appellee, New Mexico Energy and Minerals Dept., Min. and Minerals Div., et al.

Jerome C. Muys, Denver, Colo., was on brief, for amicus curiae, Santa Fe Mining, Inc., urging the affirmance of the District Court's dismissal of the Counterclaim of the Navajo Tribe and the denial of the Navajo Tribe's motion for Preliminary Injunction.

Thomas C. Means, Washington, D.C., entered an appearance for Nat. Coal Ass'n and American Min. Congress.

Before MIKVA and BUCKLEY, Circuit Judges, and PARSONS, Senior District Judge. ^*

Opinion for the court filed by Senior District Judge PARSONS.

Concurring opinion filed by Circuit Judge MIKVA.

PARSONS, Senior District Judge:

The Surface Mining Control and Reclamation Act (Surface Mining Act or Act), 30 U.S.C. sec. 1201 et seq. is a "comprehensive statute designed to 'establish a nationwide program to protect society and the environment from the adverse effects of surface mining operations.' " Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 268, 101 S.Ct. 2352, 2356, 69 L.Ed.2d 1 (1981) (quoting sec. 102(a), 30 U.S.C. sec. 1202(a)). Title II of the Act creates the Office of Surface Mining Reclamation and Enforcement (OSM), within the Department of the Interior, and the Secretary of the Interior acting through OSM is charged with primary responsibility for administering and implementing the Act by promulgating regulations and enforcing its provisions. Sec. 201(c), 30 U.S.C. 1211(c). When Congress passed the Act in 1977, it left open the question of who was to exert regulatory authority under the Act over "Indian lands." Section 710, 30 U.S.C. sec. 1300. Instead, it directed the Secretary of the Interior to study and prepare a report on that question, and to submit the report to Congress along with proposed legislation. Id., sections (a) & (b). In September of 1984, the Secretary published final regulations concerning the regulation of surface coal mining on "Indian lands." Two months later, in November of 1984, this case began when the State of New Mexico brought a petition in the court below challenging the Secretary's regulations. Named as defendants were the United States Department of the Interior and its Secretary, and the Acting Director of OSM. Because the regulations were national in scope, exclusive jurisdiction to review them rested in the United States District Court for the District of Columbia. 30 U.S.C. sec. 1276(a)(1).

New Mexico challenged particularly a section of the regulations which provides for the exclusive regulatory authority of OSM over Indian lands. See 30 C.F.R. sec. 750.6(a)(1) (1986). On February 6, 1985 the Navajo Tribe of Indians moved under Fed.R.Civ.P. 24(a) for leave to intervene as a matter of right, and in March of 1985 filed its pleading. The Tribe was permitted to intervene as a defendant, and it requested that the regulations be upheld. The Tribe's answer to New Mexico's complaint denied that the State had any regulatory authority over surface mining and reclamation activities on Indian lands. The Tribe also filed a counterclaim requesting a declaratory judgment that certain lands in New Mexico are "Indian lands" under the Surface Mining Act and that New Mexico has no regulatory jurisdiction over surface coal mining on them. Its counterclaim went further to seek an injunction to prevent the State from exercising any authority over them. In April, two organizations, the National Coal Association and the American Mining Congress also were granted leave to intervene as defendants.

On June 7, the Tribe moved for summary judgment as to New Mexico's complaint. However, this motion was never resolved because on August 1, all of the parties except the Tribe entered into an agreement and jointly moved that the complaint be dismissed with prejudice. With their motion they submitted to the court their settlement agreement. On August 6, the district court concluded that dismissal was proper and entered its order dismissing the complaint. Several motions followed. The Tribe moved for reconsideration of the dismissal order. This was denied. It then moved for a preliminary injunction on its counterclaim. A hearing on that motion was held and the decision on it was taken under advisement. Next, New Mexico sought leave of court under Fed.R.Civ.P. 15(a) to amend its answer to the Tribe's counterclaim. This was allowed, and New Mexico filed an amended answer to the counterclaim raising Fed.R.Civ.P. 12(b) objections to it based on lack of jurisdiction and improper venue. Soon thereafter, New Mexico returned to move to dismiss the Tribe's counterclaim for want of jurisdiction. On September 30, the district court entered an order denying the Tribe's request for a preliminary injunction, and finally, on November 6, it dismissed the Tribe's counterclaim. The Navajo Tribe is here appealing from these three orders: the dismissal of New Mexico's complaint, the denial of the Tribe's motion for a preliminary injunction, and the dismissal of its counterclaim.

I

The Tribe did not join the stipulation to dismiss New Mexico's complaint and the district court's dismissal of it had to come by court order pursuant to Fed.R.Civ.P. 41(a)(2). Dismissals under this Rule generally have been granted "unless the defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical disadvantage." Conafay v. Wyeth Laboratories, 793 F.2d 350, 353 (D.C.Cir.1986). "The basic purpose of [the Rule] is to freely permit the plaintiff, with court approval, to voluntarily dismiss an action [as] long as no other party will be prejudiced ... in most cases a dismissal should be granted unless the defendant will suffer some legal harm." LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976) (citations omitted). A dismissal or a failure to dismiss is reviewable under an abuse of discretion standard. Conafay, 793 F.2d at 354. In the context of this appeal, we must determine if and how the Tribe may have been prejudiced by the dismissal in order to determine whether the district court abused its discretion in ordering the dismissal.

The Tribe claims to have been prejudiced by the district court's "approval" of the settlement agreement reached by New Mexico and the Department of the Interior and to which all of the other parties had stipulated. The part of that agreement pertinent to the Tribe's claim states:

The State of New Mexico will not contest the position of the Secretary of the Interior that he is the exclusive regulatory authority with respect to surface coal mining operations on Indian lands within the State. The Office of Surface Mining Reclamation and Enforcement shall issue an additional statement to the Preamble of the Final Rule governing regulation of surface coal mining operations on "Indian lands" situated within the State of New Mexico to clarify that the Secretary does not consider individual Indian allotted lands outside the exterior boundaries of the Indian reservation to be included in the definition of "Indian lands" contained in Section 701(9) of SMRCA, 30 U.S.C. Section 1291(9), and the implementing regulation at 30 C.F.R. Section 700.5.

(Emphasis added.)

The clarification to be published by the Office of Surface Mining Reclamation and Enforcement reveals part of the controversy between the Navajo Tribe and New Mexico. That part is whether allotments to individual Indians of lands which lie outside the undisputed boundaries of the Navajo Reservation are "Indian lands" over which the State may not regulate under the Surface Mining Act. ¹ "Indian lands" are defined in the Act as

all lands, including mineral interests, within the exterior boundaries of any Federal Indian reservation, notwithstanding the issuance of any patent, and including rights-of-way, and all lands including mineral interests held in trust for or supervised by an Indian tribe.

Sec. 701(9), 30 U.S.C. sec. 1291(9). The same definition is set forth in the regulations promulgated by the Secretary. 30 C.F.R. sec. 700.5 (1986).

The "clarification" that the Secretary agreed to publish is not directed at either the statutory definition or the definition in the regulations. Instead, it is directed at "inadvertent and unintentional" language found in the preamble to the final regulations. (Affidavit of Murray Newton, Acting Chief for the Division of Regulation and Inspection, OSM, Joint Appendix 139, 140). The preamble stated in part:

It is not the intent of these regulations to amend the definition of Indian lands in the Act nor to resolve the various disputes between and among tribes and States. Rather, OSM is responsible for enforcing the law as it exists. Congress provided a definition of "Indian lands" in section 701(9) of the Act, which definition appears verbatim in 30 C.F.R. 700.5. The Federal Program...