Okla. v. United States Dep't of Interior

• Decision Date: 09 November 2022
• Docket Number: CIV-21-805-F
• Parties: STATE OF OKLAHOMA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

1

STATE OF OKLAHOMA, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

No. CIV-21-805-F

United States District Court, W.D. Oklahoma

November 9, 2022

ORDER

STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE

Before the court is Plaintiffs' Motion for Summary Judgment (doc. no. 42) filed on June 13, 2022, and Federal Defendants' Cross-Motion for Summary Judgment (doc. no. 46) filed on July 28, 2022. Both motions are fully briefed and at issue (doc. nos. 47, 48, 49).

I. INTRODUCTION

For decades, Oklahoma has regulated surface coal mining and reclamation operations within its borders, including on land that was previously understood-for more than a hundred years-to lie within the former boundaries of disestablished Indian reservations. That understanding was upended when the Supreme Court ruled that the Creek Reservation in eastern Oklahoma had never been disestablished. McGirt v. Oklahoma, __, U.S., 140 S.Ct. 2452 (2020). Applying the same reasoning, the Oklahoma Court of Criminal Appeals subsequently recognized the continued existence of the Choctaw Reservation and the Cherokee Reservation. Hogner v. State, 500 P.3d 629 (Okla. Crim. App. 2021); Sizemore v. State, 485 P.3d 867 (Okla. Crim. App. 2021). The question presented in this case is whether

2

Oklahoma may continue to regulate surface coal mining and reclamation operations within these reservations. The Office of Surface Mining Reclamation and Enforcement, a subdivision of the Department of Interior, answered that question in the negative, concluding that the Surface Mining Control and Reclamation Act prohibited Oklahoma from regulating surface mining and reclamation operations on Indian land. The consequences of this decision are significant - the land comprising the Creek, Choctaw, and Cherokee Reservations makes up a huge swath of eastern Oklahoma and includes all the surface coal mining and reclamation activities in the state.

Dissatisfied with OSMRE's decision, Oklahoma filed this action and a companion case, seeking a declaratory judgment that Oklahoma has jurisdiction over surface mining activities within the Reservations and contending that OSMRE violated the Administrative Procedure Act, 5 U.S.C. § 500, et seq., in various ways. OSMRE answered and filed a counterclaim seeking a declaratory judgment that OSMRE is the sole regulatory authority on land comprising the reservations and that Oklahoma's state regulatory program is preempted by federal law as to these lands.

In the companion case, the court denied Oklahoma's motion seeking to preliminarily enjoin OSMRE from exercising regulatory authority over lands within the Creek Reservation. See Order of December 22, 2021 (doc. no. 75), State of Oklahoma, et al. v. Dept. of the Interior, et al., CIV-21-719-F (W.D. Okla.). The court concluded that Oklahoma was not likely to succeed on the merits of its claims because the Surface Mining Control and Reclamation Act precludes state regulation of surface mining and reclamation operations on Indian lands. The parties^[1] have now

3

returned to the court with cross-motions for summary judgment on all pending claims. For the reasons explained below, the Court again concludes that Oklahoma is not entitled to the relief it seeks.

But one thing must be clearly understood. The result the court reaches today is compelled primarily by a straight-forward application of the federal surface mining legislation to Indian lands-a situation contemplated by the express provisions of that federal law. Because the result here is compelled by the express requirements of federal legislation, this order should not be regarded as relevant to other situations in the realm of civil law, not involving the express command of federal surface mining legislation, in which other courts are required to determine the extent of the fallout of the McGirt decision.

II. BACKGROUND

A. The Surface Mining Control and Reclamation Act of 1977

Surface mining operations and reclamation activities are governed by the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201, et seq., also known as SMCRA. SMCRA “is a comprehensive statute designed to ‘establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.'” Hodel v. Virginia Surface Min. & Reclamation Ass'n, Inc., 452 U.S. 264, 268 (1981) (quoting 30 U.S.C. § 1202(a)). To that end, SMCRA directs the Secretary of the Interior, acting through OSMRE, to establish minimum national performance standards for surface mining and reclamation operations. 30 U.S.C. §§ 1211, 1251(b).

However, “because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations,” SMCRA also provides that the “primary governmental responsibility” for developing and enforcing regulations “should rest with the States.” Id. at § 1201(f). Accordingly, Title V of SMCRA provides a specific mechanism by which a State may take

4

responsibility for regulation of surface mining and reclamation operations. It works as so: any state wishing to regulate surface mining operations may prepare a “State program” that is submitted to OSMRE for approval. Id. at § 1235(a). The State program must demonstrate that that State has laws which provide for the regulation of surface mining and reclamation operations in accordance with SMCRA's requirements and that the State has the ability to enforce them. Id. If OSMRE approves the state program, the State then exercises “exclusive jurisdiction” over surface mining operations, although OSMRE retains enforcement oversight. Id. at §§ 1235(a); 1254(b). A state with an approved program may also seek funding for reclamation and restoration of land and water resources adversely affected by past mining operations from a fund established by Title IV of SMCRA. Id. at § 1235(c). In the absence of an approved state program, or in the event that a State is not adequately enforcing its program, OSMRE implements a Federal program of regulation for a state. Id. at § 1254(a). SMCRA thus “provides for either State regulation of surface coal mining within its borders or federal regulation, but not both. The Act expressly provides that one or the other is exclusive[.]” Bragg v. W. Virginia Coal Ass'n, 248 F.3d 275, 289 (4th Cir. 2001).

Although SMCRA permits States to assume exclusive regulatory jurisdiction over surface mining and reclamation operations, it also carefully defines the geographic scope of that jurisdiction. A “State program” means an approved program under § 1253 “to regulate surface coal mining and reclamation operations, on lands within such State.” 30 U.S.C. § 1291(25). “Lands within such State” is further defined to mean “all lands within a State other than Federal lands and Indian lands.” Id. at § 1291(11). Accordingly, pursuant to these definitions, a State's regulatory jurisdiction under SMCRA only extends to “non-Federal and non-Indian land within the particular state.” Pennsylvania Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 315-16 (3d Cir. 2002).

5

Regulation of surface mining on Indian lands is addressed in § 1300 of SMCRA. This provision provides that “the Secretary shall incorporate the requirements” of SMCRA “in all existing and new leases issued for coal on Indian lands.” 30 U.S.C. § 1300(d). SMCRA's implementing regulations also make clear that OSMRE “shall[] [b]e the regulatory authority on Indian lands.” 30 C.F.R. § 750.6. “Indian lands” is defined to include “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.” 30 U.S.C. § 1291(9).

Although SMCRA contemplates federal regulation on Indian lands, it also allows an Indian tribe to prepare its own tribal program for the regulation of surface mining and reclamation operations “on reservation land under the jurisdiction of the Indian tribe.” 30 U.S.C. § 1300(d), (j). If an Indian tribe chooses to develop a regulatory program, the procedures relating to submission of a state program after implementation of a Federal program govern the process. Id. at § 1300(j)(1)(A). SMCRA further provides that, for purposes of preparing a tribal regulatory program under Title V, any reference to a State shall also be considered to be a reference to an Indian tribe. Id. at § 1300(j)(1)(B). Similarly, Title IV authorizes Indian tribes to seek funding for reclamation projects and provides that an Indian tribe shall be considered to be a State for purposes of Title IV. Id. at § 1235(k).

Finally, SMCRA expressly prohibits inconsistent regulations, but not those that are more stringent than its minimum standards. Section 1255 provides that “[n]o State law or regulation.. .shall be superseded by any provision of this chapter or any regulation issued pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of this chapter,” 30 U.S.C. § 1255(a), but state laws

6

that provide for “more stringent” regulation or for which SMCRA contains no provision “shall not be construed to be inconsistent.” Id. at § 1255(b).

With that statutory framework in mind, the court now turns to the facts giving rise to the present controversy.

B. The Present Controversy

On July 9, 2020, the Supreme Court issued its decision in McGirt, 140 S.Ct. at 2452. McGirt held that the Muscogee (Creek) Nation's Reservation in eastern Oklahoma had not been disestablished and therefore met the definition of “Indian country” under the Major Crimes Act. Id. at 2478. The Supreme Court acknowledged that its decision could potentially impact state jurisdiction under a variety of civil laws. Id. at 2482. This is such a case.

As...