Powder River Basin Resource Council v. Babbitt, 93-8117

• Citation: 54 F.3d 1477
• Decision Date: 18 April 1995
• Docket Number: No. 93-8117,93-8117
• Parties: POWDER RIVER BASIN RESOURCE COUNCIL, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the United States Department of the Interior; Robert Uram, Director of the Office of Surface Mining, United States Department of the Interior; Dennis Hemmer, Director of the Wyoming Department of Environmental Quality, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1477

54 F.3d 1477

40 ERC 1697

POWDER RIVER BASIN RESOURCE COUNCIL, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the United States Department of the Interior; Robert Uram, Director of the Office of Surface Mining, United States Department of the Interior Dennis Hemmer, Director of the Wyoming Department of Environmental Quality, Defendants-Appellees.

No. 93-8117.

United States Court of Appeals Tenth Circuit.

April 18, 1995.

Mark S. Squillace, Laramie, WY (Jon B. Huss, Casper, WY, with him on the briefs), for appellant.

Mary B. Guthrie, Deputy Atty. Gen. (Joseph B. Meyer, Atty. Gen., with her on the briefs), Office of the Atty. Gen., State of Wyo., Cheyenne, WY, for appellee Dennis Hemmer.

Jeffrey P. Kehne, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC (Lois J. Schiffer, Acting Asst. Atty. Gen., Brian L. Ferrell, and Robert L. Klarquist, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, and Richard McNeer, Office of the Sol., U.S. Dept. of the Interior, Washington, DC, with him on the briefs), for appellee Bruce Babbitt.

Before TACHA and McKAY, Circuit Judges, and HANSEN, ^* District Judge.

TACHA, Circuit Judge.

Plaintiff Powder River Basin Resource Council (PRBRC) filed suit under the citizen suit provision of the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. Sec. 1270(a)(2), the federal Declaratory Judgment Act, 28 U.S.C. Sec. 2201, and the act allowing citizens to compel federal governmental performance, 28 U.S.C. Sec. 1361. Plaintiff alleged that the attorney's fees provision of Wyoming's surface mining regulatory scheme violated established federal regulations and requested declaratory and injunctive relief. The district court granted defendant's request for summary judgment, holding that plaintiff's action against the state was barred by the Eleventh Amendment and that its case against the federal government was unripe. The court also denied plaintiff's request for attorney's fees in the case at bar. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I. BACKGROUND

A.

Before turning to plaintiff's allegations, we must first establish the regulatory framework as it existed when this litigation began. SMCRA permits a state to "assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations." 30 U.S.C. Sec. 1253(a). Procedurally, any state wishing to control its surface coal mining operations was required to submit its plan for state control to the Secretary of the Interior (the Secretary) during an eighteen-month period beginning on August 3, 1977. Id. To gain exclusive control, however, the state has to demonstrate that it can carry out a number of tasks, including promulgating "rules and regulations consistent with regulations issued by the Secretary." Id. Sec. 1253(a)(7).

According to federal regulations enacted under SMCRA, the Secretary can conditionally approve a program when the deficiencies were minor. 30 C.F.R. Sec. 732.13(j). To obtain conditional approval, "[t]he State [must] agree[ ] in writing to correct such deficiencies within a time established by the Secretary and stated in the conditional approval." Id. Sec. 732.13(j)(3). If the state does not take corrective action within the prescribed time period, the regulations direct the following:

[T]he Director [of the Office of Surface Mining] shall notify the Secretary that the deficiencies have not been corrected and shall within 30 days--

(i) Withdraw approval of the State program in whole or in part, and specify the extent to which approval of the State program is being withdrawn;

(ii) Substitute direct Federal enforcement of those portions of the permanent regulatory program that the State has failed to implement;

(iii) Initiate procedures ... to withdraw State program approval and implement a Federal program for the State, including specifying necessary remedial actions to correct continued deficiencies; or

(iv) Take any combination of actions under paragraphs (j)(4) and (i) through (iii) of this section.

30 C.F.R. Sec. 732.13(j)(4).

SMCRA allows a court, whenever it deems proper, to order one party to reimburse another party for its costs and expenses (including attorney's fees) incurred in pursuing a SMCRA claim. 30 U.S.C. Sec. 1275(e). In accordance with this provision, the Secretary issued regulations specifying who may receive an award for costs and expenses. See 43 C.F.R. Sec. 4.1294.

On August 15, 1979, Wyoming submitted its proposed regulatory plan under SMCRA. In 1980, the Secretary determined that the state's regulatory scheme was deficient in certain areas. See Conditional Approval of the Permanent Program Submission from the State of Wyoming Under the Surface Mining Control and Reclamation Act of 1977, 45 Fed.Reg. 78,637 (1980). One such deficiency was the absence of a state provision for attorney's fees. Id. at 78,674. The absence of an attorney's fee provision in Wyoming's plan conflicted with attorney's fees regulations previously enacted by the Secretary. Id. The state gained conditional approval, however, by agreeing to correct all of its plan's deficiencies by March 26, 1981. Id. at 78,683.

Over the next three years, Wyoming attempted to correct the deficiencies in its program. See 30 C.F.R. Sec. 950.15. When necessary, the Secretary extended Wyoming's deadlines for compliance. On September 27, 1982, the Secretary again ruled that Wyoming's program did not conform to the requirements of 43 C.F.R. Sec. 4.1294 and extended Wyoming's deadline for compliance to May 20, 1983. See Removal of Condition of Approval of the Wyoming Permanent Regulatory Program and Extension of the Deadline for Wyoming to Satisfy a Condition of Approval, 47 Fed.Reg. 42,351 (1982). Wyoming took no further action regarding its provision for attorney's fees, however, until after plaintiff filed its notice of suit in the case at bar.

B.

In 1991 plaintiff participated in an administrative proceeding concerning the renewal and revision of the Black Thunder Mine's Campbell County coal permit. The parties to that proceeding settled. Plaintiff then petitioned the Wyoming Department of Environmental Quality (the DEQ) for costs and expenses, including attorney's fees. DEQ director Dennis Hemmer denied plaintiff's petition, citing the version of Wyoming's costs statute then in force, Wyo.Stat. Sec. 35-11-437(f) (1988).

At this point the litigation split into two parts. Plaintiff appealed Hemmer's decision in Wyoming state court. It also notified defendants on March 31, 1992, of its intent to sue them in federal court. Following the sixty day notice period required by statute, see 30 U.S.C. Sec. 1270(b)(1)(A), plaintiff filed the case at bar in federal district court.

Believe it or not, here's where the case gets complicated. In the sixty days between the notice of suit and the filing of suit in federal court, Hemmer proposed changes to Wyoming's attorney's fees provision. On May 16, 1992, the state published notice of its intent to engage in rulemaking, and on November 25, 1992, the state filed the revised rules. ¹

Each party filed for summary judgment in federal district court. On September 29, 1993, the district court granted summary judgment in favor of both the state and federal defendants. It held that the Eleventh Amendment barred plaintiff's case against the state because plaintiff asked for retroactive relief. The court also ruled that the case against the federal defendants was unripe in light of Wyoming's ongoing attempt to comply with federal directives. Finally, the court denied plaintiff's request for attorney's fees in the current federal action, stating that plaintiff should have refrained from filing suit after the state defendant's institution of rulemaking procedures. Plaintiff appealed.

As the parties were preparing their appeals to this court, two things happened. First, on January 24, 1994, the Secretary partially approved Wyoming's revised program, requiring a number of changes for full approval. 30 C.F.R. Sec. 950.11. The Secretary ruled that Wyoming had to complete the revisions by June 1, 1994. Id. Second, the Wyoming Supreme Court decided plaintiff's appeal in its state court action. See Powder River Basin Resource Council v. Wyoming Envtl. Quality Council, 869 P.2d 435 (Wyo.1994). The court determined that plaintiff was eligible for attorney's fees for its work in the Black Thunder Mine permit proceeding. Id. at 439. It remanded the case for a determination of whether the PRBRC was also entitled to attorney's fees for its state appeal. Id.

On April 13, 1994, Wyoming submitted the current version of section 35-11-437 to the Secretary for approval. Approval of Amendments and Removal of Condition of Program Approval, 59 Fed.Reg. 53,094-95 (1994) (to be codified at 30 C.F.R. Secs. 950.11, 950.15). On October 21, 1994--approximately one month before oral argument in this case--the Secretary approved Wyoming's amendment. Id. at 53,097. The Secretary therefore lifted the condition relating to attorney's fees from SMCRA approval.

In their briefs, the parties raise issues concerning ripeness, mootness, standing, and the Eleventh Amendment. We must also address plaintiff's argument that it is entitled to attorney's fees in the case at bar. We first address these issues as they apply to the state and then turn to plaintiff's case against the federal government.

II. THE CASE AGAINST THE STATE DEFENDANTS

Plaintiffs asked for declaratory and injunctive relief and for reimbursement of their costs incurred in litigating the case at bar. Although we find that the district court had jurisdiction over the case when it was filed, we conclude that the district court lost its power to hear the case when plaintiff's injury was eradicated. Because jurisdiction was present at the beginning of the suit, however, we nonetheless address plaintiff's request for attorney's fees. Cf. Clark v. Busey, 959 F.2d...