Penn. Federation of Sportsmen's Clubs v. Norton

• Decision Date: 01 February 2006
• Docket Number: No. Civ. 1:03-CV-2220.,Civ. 1:03-CV-2220.
• Citation: 413 F.Supp.2d 358
• Parties: PENNSYLVANIA FEDERATION OF SPORTSMEN'S CLUBS, et al., Plaintiffs, v. Gale A. NORTON, Secretary, United States Department of the Interior, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

413 F.Supp.2d 358

PENNSYLVANIA FEDERATION OF SPORTSMEN'S CLUBS, et al., Plaintiffs, v. Gale A. NORTON, Secretary, United States Department of the Interior, et al., Defendants.

No. Civ. 1:03-CV-2220.

United States District Court, M.D. Pennsylvania.

February 1, 2006.

COPYRIGHT MATERIAL OMITTED

Kurt J. Weist, Kurt J. Weist Penn Furniture, Harrisburg, PA, for Plaintiffs.

Ruth Ann Storey, Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM

RAMBO, District Judge.

Before the court are the Plaintiffs' Motion for Summary Judgment (Doc. 39) and Defendants' Joint Cross-Motion for Summary Judgment (Doc. 47). The parties have briefed the issues and the matters are ripe for disposition. For the following reasons, the court will deny Plaintiffs' motion and grant Defendants' motion.

I. Background

A. Introduction

This case involves questions concerning the Office of Surface Mining Reclamation and Enforcement's ("OSM") authority to perform various administrative actions under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA").¹ Specifically, Plaintiffs challenge OSM's authority to approve state "program enhancements," terminate a program deficiency notice issued under 30 C.F.R. § 732.17 ("the Part 732 notice"), and delete a program amendment that was codified at 30 C.F.R § 938.16(h). Each is described in greater detail below.

SMCRA establishes the minimum Federal requirements for regulating surface coal mining and reclamation efforts for the benefit of the environment and public welfare. See 30 U.S.C. § 1201. The Act established OSM "as a subdivision within the Department of the Interior with the Secretary of the Interior acting through the OSM, empowered to administer the various state programs for controlling surface coal mining pursuant to the Act." Pa. Fed. of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 315 (3d Cir.2002) (citing 30 U.S.C. § 1211(a), (c)). SMCRA intends for states to be the primary source of regulation of surface mining and reclamation activities in order to account for the "diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations." 30 U.S.C. § 1201.

State programs become permanent and states achieve primary jurisdiction, or "primacy," when the Secretary of the United States Department of the Interior ("the Secretary") approves a proposed state program or implementation of a Federal program in the state. See 45 Fed.Reg. 69,970, 69,972 (Oct. 22, 1980). "The federal regulations for the [state] program, including procedures for states to follow in submitting state programs and minimum standards and procedures the state programs must include to be eligible for approval, are found in 30 C.F.R. Parts 700 and 730-865." Id. The Secretary approved Pennsylvania's permanent program on July 30, 1982. 47 Fed.Reg. 33,050 (July 30, 1982) (to be codified at 30 C.F.R. pt. 938).

B. The Parties

The five Plaintiffs are: Pennsylvania Federation of Sportsmen's Clubs, Inc.; the Pennsylvania Chapter of the Sierra Club; Pennsylvania Trout, Inc.; Tri-State Citizens Mining Network, Inc.; and Mountain Watershed Association, Inc. Plaintiffs are nonprofit membership organizations, corporations, and coalitions that focus on Pennsylvania's environment and conservation of natural resources. Defendants are Gale A. Norton, sued in her official capacity as the Secretary of the United States Department of the Interior; Jeffrey D. Jarrett, sued in his official capacity as the Director of OSM; and Brent Wahlquist, sued in his official capacity as the Regional Director of OSM's Appalachian Regional Coordinating Center. In addition, the Commonwealth of Pennsylvania, Department of Environmental Protection ("PDEP") was permitted to join as an Intervenor-Defendant.

C. Bonding Programs

Approval of a state program under SMCRA is contingent upon the state's establishment and maintenance of a bonding program that will support reclamation of surface mining areas if permitted operators should fail to do so. SMCRA requires that every operator must post a reclamation bond before the state may issue the operator a permit to begin mining operations. 30 U.S.C. § 1259(a). The two basic types of bonding programs include a conventional, or "full cost" system ("CBS") and an alternative bonding system ("ABS" ). See 30 U.S.C. § 1259(a) (authorizing a CBS, a bond "sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture"), § 1259(c) (authorizing an ABS, "an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section"). The implementing Federal regulations pertaining to the CBS and ABS are found at 30 C.F.R. §§ 800.11(a) through (d) and 30 C.F.R. § 800.11(e), respectively.

Pennsylvania's program, as approved, provided for the option to implement either a CBS or an ABS. The Pennsylvania Surface Mining Conservation and Reclamation Act ("PA SMCRA"²) states in relevant part that:

The amount of the bond required shall be in an amount determined by the department based upon the total estimated cost to the Commonwealth of completing the approved reclamation plan, or in such other amount and form as may be established by the department pursuant to regulations for an alternate coal bonding program which shall achieve the objectives and purposes of the bonding program.

52 Pa. Cons.Stat. Ann. § 1396.4. The Secretary approved the bonding portion of PA SMCRA without condition. See 47 Fed. Reg. at 33,079-80 (setting forth " § 938.11 Conditions of state regulatory program approval.").³ Prior to and after attaining primacy, Pennsylvania operated an ABS to regulate surface mining activities.⁴ The ABS drew upon the Surface Mining Conservation and Reclamation Fund ("the Fund") to supplement reclamation guarantees provided through site-specific bonds set below the cost of reclamation. The Fund's primary source of revenue was a one-time nonrefundable per-acre reclamation fee. The fee was originally $50 per acre, but in 1993 Pennsylvania amended its regulations and raised to the fee to $100 per acre. 25 Pa.Code § 86.17(e); see 58 Fed.Reg. 36,139, 36,141 (July 6, 1993).

D. The Program Amendment at 30 C.F.R. § 938.16(h)

On May 31, 1991, OSM approved a program amendment ("the 1991 rulemaking"), codified at 30 C.F.R. § 938.16(h), that required Pennsylvania to either "submit information, sufficient to demonstrate that the [ABS] can be operated in a manner that will meet the requirements of 30 C.F.R. 800.11(e)," or to amend its rules or otherwise amend its program by November 1, 1991, to be compliant with Federal standards. 56 Fed.Reg. 24,687, 24,719-21 (May 31, 1991). This action, known as a codified required amendment, was published in the Federal Register on May 31, 1991 as a Final Rule, following public notice as a Proposed Rule in the February 26, 1990 Federal Register and a period of public comment.

OSM subsequently removed the required amendment by publishing a Final Rule in the October 7, 2003 Federal Register. See 68 Fed.Reg. 57,805 (Oct. 7, 2003). OSM had announced its proposed removal of the required amendment in the June 26, 2003 Federal Register, see 68 Fed.Reg. 37,987 (June 26, 2003), and provided for a public comment period. OSM stated that PADEP had responded to the deficiencies identified in the 1991 rulemaking by submitting a document entitled, "Pennsylvania Bonding System Program Enhancements" ("the program enhancements document").⁵ 68 Fed.Reg. at 57, 805-06. The program enhancements document, which had been jointly prepared by OSM and PADEP, described the actions taken and planned by PADEP to ensure that Pennsylvania's bonding program would meet Federal standards. Id.

During the comment phase of the 1991 rulemaking process, OSM sought public comment for the limited purpose of "whether OSM should consider the [program enhancements document] sufficient to satisfy the required amendment at 30 C.F.R. § 938.16(h)." Id. Plaintiffs submitted comments during the public comment period.⁶ Although the 1991 rulemaking included discussion of Plaintiffs' comments on whether the program enhancements document was sufficient to address the deficiencies in the ABS, OSM maintained that such comments were outside the scope of the rulemaking. Id.⁷

E. The Part 732 Notice

A Part 732⁸ notice "is a document in which [OSM] notifies the State that its regulatory program must be amended to be in accordance with SMCRA and consistent with the Federal regulations.... Such notification may be necessary as a result of Federal regulation changes, State or Federal court decisions, or problems identified during oversight or other program review processes." U.S. Department of the Interior Office of Surface Mining Reclamation and Enforcement Directive System, "Processing of Proposed State Regulatory Programs and State/Tribal Abandoned Mine Land Reclamation Plans; and Part 732 and 884 Notification," STP-1, at 3, July 31, 2000. Under some circumstances, but not all, a Final Rule published in the Federal Register may be considered a Part 732 notice. See id. Likewise, not all Part 732 notices must be Federal Register documents. Cf. id.

On October 1, 1991, OSM sent the Part 732 notice to Pennsylvania, stating that the State's ABS "was no longer in conformance with Federal requirements and mandating that Pennsylvania propose amendments or descriptions of amendments to address the identified deficiencies. Thus the 1991 [Part 732 notice] addressed the same issue covered by the 1991 rulemaking." 68 Fed.Reg. at 57,806.

On June 5, 2003, PADEP responded to the Part 732 notice by submitting the program enhancements document. OSM subsequently determined that the program enhancements document sufficiently addressed the deficiencies identified in the ABS program and, on June 13, 2003, Brent Wahlquist sent a letter to PADEP terminating the Part 732 ...