Pennsylvania Federation Sportsmen's Clubs v. Hess

Decision Date24 July 2002
Docket NumberNo. 01-1683.,No. 00-2139.,00-2139.,01-1683.
Citation297 F.3d 310
PartiesPENNSYLVANIA FEDERATION OF SPORTSMEN'S CLUBS, INC.; Pennsylvania Chapter Sierra Club; Pennsylvania Trout, Inc.; Tri-State Citizens Mining Network; Mountain Watershed Association, Inc., Appellants, v. *David E. HESS, Individually and as Secretary, Pennsylvania Department of Environmental Protection; *Gale A. Norton, Secretary, United States Department of the Interior; *Jeffrey D. Jarrett, Director, Office of Surface Mining Reclamation and Enforcement. Pennsylvania Coal Association; Pennsylvania Anthracite Council; ARIPPA, Intervenors in D.C. *David E. Hess, Appellant. *Pursuant to F.R.A.P. 43(c).
CourtU.S. Court of Appeals — Third Circuit

Dennis Whitaker, (argued), Department of Environmental Protection, Harrisburg, PA, for appellant.

Kurt J. Weist, (argued), PennFuture, Harrisburg, PA, for Pennsylvania Federation, et al.

John T. Stahr, (argued), United States Department of Justice Environment & Natural Resources Division, Washington, D.C., for Secretary of Interior, etc., et al.

BEFORE: McKEE, BARRY, and ALARCON,* Circuit Judges.

BARRY, Circuit Judge.

The central question we must answer, a question heretofore answered by only one other court of appeals, is whether the Eleventh Amendment bars suit in federal court against a state official where what is at issue is that official's purported failure to implement, administer, enforce, and maintain a federally approved state coal mining program. We find that it does and, thus, will affirm in part and reverse in part the orders of the District Court.

I. INTRODUCTION

The two appeals now before us stem from a complaint filed under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. § 1201-1328 (1988 & Supp. IV 1993), by five non-profit sporting and environmental organizations — the Pennsylvania Federation of Sportsmen's Clubs, Inc.; the Pennsylvania Chapter Sierra Club; Pennsylvania Trout, Inc.; Tri-State Citizens Mining Network; and the Mountain Watershed Association, Inc. ("plaintiffs"). More specifically, plaintiffs filed suit under Section 520 of SMCRA, 30 U.S.C. § 1270, which permits citizens suits to be commenced in federal district court by "any person" against, as relevant here, a "State regulatory authority to the extent permitted by the eleventh amendment to the Constitution." § 1270(a)(2).1 Jurisdiction was also invoked under 28 U.S.C. §§ 1331 and 1361. Defendants in this action for declaratory and injunctive relief are James M. Seif, Secretary, Pennsylvania Department of Environmental Protection ("DEP");2 Gale A. Norton, Secretary, U.S. Department of the Interior; and Glenda H. Owens, Acting Director, Office of Surface Mining Reclamation and Enforcement. The Pennsylvania Coal Association, the Pennsylvania Anthracite Council, and ARIPPA were permitted to intervene as defendants.

Seif is the sole named defendant in Counts One through Eight of the eleven-count complaint, the only counts before us on these appeals. While we will at a later point discuss these counts in detail, it is sufficient for present purposes to note that Counts One through Six allege that Seif failed to perform various nondiscretionary duties in connection with implementing, administering, enforcing, and maintaining the approved Pennsylvania surface coal mining program in accordance with SMCRA, the federal implementing regulations, and provisions of the approved Pennsylvania program. Counts Seven and Eight allege Seif's failure to perform a nondiscretionary duty only under SMCRA and 30 C.F.R. §§ 938.16(h) and 732.17(f)(1), respectively.

Seif moved before the District Court to dismiss Counts One through Eight on various grounds, including the ground that they were barred as against him by the Eleventh Amendment and that the Ex parte Young exception to Eleventh Amendment immunity did not apply because plaintiffs' claims arose under state law. The District Court granted that motion as to all counts save Counts One and Three. Seif appealed the District Court's partial denial of his motion to this Court (docketed at 00-2139) and plaintiffs moved for reconsideration as to Counts Four, Six, Seven, and Eight of the six dismissed counts.

The District Court treated plaintiffs' motion for reconsideration as one under Fed.R.Civ.Proc. 59(e) to alter or amend the judgment, and we stayed Seif's appeal pending resolution of that motion. The District Court subsequently granted plaintiffs' motion as to Counts Seven and Eight, and reinstated those counts, but denied it as to Counts Four and Six. Seif amended his notice of appeal to include an appeal from that order; thus, No. 00-2139 is the appeal from the District Court's rejection of Eleventh Amendment immunity for Seif on Counts One, Three, Seven, and Eight. Denials of Eleventh Amendment immunity are immediately appealable under the collateral order doctrine. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-47, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993).

The District Court also granted plaintiffs' motion as to Counts Two, Four, Five, and Six to certify for interlocutory appeal under 28 U.S.C. § 1292(b) the following "controlling question of law as to which there is a substantial ground for difference of opinion and [as to which] an immediate appeal ... may advance the ultimate termination of the instant litigation":

Is Defendant Seif entitled to Eleventh Amendment immunity from suit in federal court as to allegations of continuing violations of duties under the Pennsylvania program when `States with an approved State program shall implement, administer, enforce and maintain it in accordance with the [SMCRA], this chapter and the provisions of the approved States program,' by 30 C.F.R. § 733.11?

Plaintiffs thereafter successfully moved for permission to appeal in this Court, with the appeal docketed at No. 01-1683. Plaintiffs' appeal and Seif's appeal have been consolidated for disposition. We review the District Court's ruling on Eleventh Amendment immunity de novo. Lavia v. Pennsylvania Dep't of Corrections, 224 F.3d 190, 194-95 (3d Cir.2000).

II. THE SURFACE MINING CONTROL AND RECLAMATION ACT

SMCRA, which has been described as providing "a truly federalist distribution of regulatory authority for the coal mining industry,"3 was enacted in 1977 in response to Congress's concern over the environmental and societal costs of surface coal mining operations. Congress recognized that the expansion of coal mining to meet this country's energy needs "makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public." 30 U.S.C. § 1201(d). It recognized, as well, that "because of the diversity, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations ... should rest with the States." Id. § 1201(f). Thus, SMCRA was intended to ensure the viability of the surface coal mining industry and to promote federalism. Hodel v. Virginia Surface Coal Mining & Reclamation Ass'n., Inc., 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The Office of Surface Mining Reclamation and Enforcement ("OSM") was established as a subdivision within the Department of the Interior with the Secretary of the Interior ("Secretary"), acting through the OSM, empowered to administer the various state programs for controlling surface coal mining pursuant to the Act. 30 U.S.C. § 1211(a) and (c). OSM's regulations promulgated pursuant to SMCRA are codified at 30 C.F.R. Parts 700-887.15.

Of critical importance here, SMCRA enables states to "assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" on non-Federal and non-Indian lands within the particular state. Id. § 1253(a) (emphasis added). To achieve this exclusive jurisdiction, a state must submit to the Secretary a proposed program "which demonstrates that such State has the capability of carrying out the provisions of [SMCRA] and meeting its purposes." Id. The particular state program must contain state laws which provide for the regulation of surface coal mining and reclamation operations in accordance with SMCRA's requirements. Id. § 1253(a)(1).

The plain language of SMCRA evidences Congress's intent to give the states exclusive jurisdiction over the regulation of surface mining as long as the states enact laws and regulations that, at minimum, meet the minimum federal standards, with the federal standards serving only as the floor and not the ceiling for the state programs. The states must also demonstrate that they are capable of enforcing their laws. As we have observed, "[t]here would be no reason to allow the states to impose their own regulations if the regulations had to be the same as the federal Act and regulations." Pennsylvania Coal Association v. Babbitt, 63 F.3d 231, 238 (3d Cir.1995). Indeed, Congress was well aware that, at least above the federal minimum, there could not be a uniform federal standard because of the wide differences in such things as geology and topography in areas subject to mining operations in the various states and the states' familiarity with local conditions. Thus, Congress determined that "the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations... should rest with the States." 30 U.S.C. § 1201(f).

While SMCRA's purpose was to "assist" the states in developing a satisfactory program of laws and regulations, id. at § 1202(g), once that program was developed in a particular state, and was approved by the Secretary, the state would be granted...

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