Save Our Cumberland Mountains, Inc. v. Clark

• Decision Date: 02 April 1984
• Docket Number: No. 83-1008,83-1008
• Citation: 233 U.S.App.D.C. 316,725 F.2d 1422
• Parties: , 233 U.S.App.D.C. 316, 14 Envtl. L. Rep. 20,199 SAVE OUR CUMBERLAND MOUNTAINS, INC., Council of Southern Mountains, Inc., Virginia Citizens For Better Reclamation, Appellants, v. William P. CLARK, in his official capacity as Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1422

725 F.2d 1422

20 ERC 1305, 233 U.S.App.D.C. 316, 14

Envtl. L. Rep. 20,199

SAVE OUR CUMBERLAND MOUNTAINS, INC., Council of Southern Mountains, Inc., Virginia Citizens For Better Reclamation, Appellants, v. William P. CLARK, in his official capacity as Secretary of the Interior, et al.

No. 83-1008.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 26, 1983.

Decided Jan. 20, 1984.

Rehearing Denied April 2, 1984

Rehearing En Banc Granted April 2, 1984.*

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-2238).

Joseph A. Yablonski, Washington, D.C., with whom Daniel B. Edelman and L. Thomas Galloway, Washington, D.C., were on the brief, for appellants.

Roger Marzulla, Atty., U.S. Dept. of Justice, Washington, D.C., for appellees. Carol E. Dinkins, Asst. Atty. Gen., and Robert L. Klarquist, Alfred T. Ghiorzi, and Jennele M. Morris, Attys., U.S. Dept. of Justice, and Harold P. Quinn, Jr., Atty., U.S. Dept. of Interior, Washington, D.C., were on the brief for appellees.

Before TAMM and WILKEY, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

Appellants, three environmental citizens organizations (hereinafter referred to collectively as SOCM), ¹ brought this action alleging that the Secretary of the Interior (the Secretary) and the Director of the Office of Surface Mining (the Director) ² had unlawfully failed to implement and enforce the Surface Mining Control and Reclamation Act of 1977 (the Act), 30 U.S.C. Secs. 1201-1328 (Supp. V 1981). ³ SOCM claimed that the Secretary unlawfully withdrew a regulation construing an exemption from the Act known as the "two-acre exemption," and that the Secretary failed to enforce the Act against miners that were improperly claiming this exemption. Appellants raise two issues on appeal. First, they contest the district court's ruling that venue for the claims against the Secretary for failure to perform mandatory duties was improper under the venue provision found in section 520(c)(1) of the Act. Second, appellants dispute the court's holding that the challenge to the withdrawal of the regulation was mooted by the agency's subsequent promulgation of a regulation covering the same subject matter. We agree with the reasoning of United States District Judge Charles R. Richey and, accordingly, affirm both district court orders.

I. BACKGROUND

The Surface Mining Control and Reclamation Act of 1977 established a comprehensive program designed to "protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. Sec. 1202(a). Title II of the Act creates the Office of Surface Mining Reclamation and Enforcement (OSM) and delegates to the Secretary of the Interior, acting through OSM, primary responsibility for administering and enforcing the Act. ⁴ Title V of the Act sets out detailed environmental protection performance standards for surface mining operations. No entity may engage in a surface mining or reclamation operation without first obtaining from the appropriate regulatory authority a permit assuring compliance with these standards. 30 U.S.C. Sec. 1265. In Title IV of the Act, Congress established the Abandoned Mine Reclamation Fund (Fund). All mine operators are required to pay into the Fund a fee based on tonnage of coal mined. The money in the Fund is to be used to defray the costs of restoring lands damaged by mining activities. 30 U.S.C. Sec. 1232. The Secretary of the Interior is responsible for promulgating regulations to implement these provisions of the Act.

Congress specifically exempted from the terms of the Act "the extraction of coal for commercial purposes where the surface mining operation affects two acres or less." 30 U.S.C. Sec. 1278(2) (the two-acre exemption). Thus, miners affecting less than two acres need not obtain permits or pay fees into the Fund. The dispute in this case arises out of the Secretary's actions with respect to the implementation and enforcement of this exemption.

The OSM first promulgated a regulation construing the applicability of the two-acre exemption in March 1979. The regulation excluded from the scope of the two-acre exemption "any ... operation conducted by a person who affects or intends to affect more than two acres at physically related sites, or any ... operation conducted by a person who affects or intends to affect more than two acres at physically unrelated sites within one year." 30 C.F.R. Sec. 700.11(b) (1982).

On November 27, 1979, OSM suspended the portion of the regulation that applied to "physically unrelated sites." 44 Fed.Reg. 67,942 (1979). ⁵ Subsequently, in January 1981, the Secretary published a second two-acre rule. This rule, which supplemented the remaining portion of the first rule, adopted specific criteria for determining whether mining operations that are not physically connected are nevertheless related for purposes of determining whether they are exempt. 46 Fed.Reg. 7,902 (1981).

The second two-acre rule never went into effect. First, in compliance with a memorandum issued by President Reagan, ⁶ the Secretary postponed the effective date of the second two-acre rule to March 30, 1981. 46 Fed.Reg. 10,707 (1981). On March 23, 1981, however, OSM suspended the second two-acre rule, without notice and comment, pending the outcome of rulemaking. ⁷ 46 Fed.Reg. 18,023 (1981). On April 3, 1981, OSM cancelled the March 23 notice of suspension and deferred the effective date of the rule until May 4, 1981. The notice also solicited comments on a proposed indefinite suspension of the rule. ⁸ 46 Fed.Reg. 20,211 (1981). After two more extensions of its effective date, the second two-acre rule was withdrawn. 46 Fed.Reg. 40,650, 40,651 (1981).

Appellants filed this action in the district court on September 15, 1981. Count I of the complaint alleged that the suspension and withdrawal of the second two-acre rule was arbitrary and capricious and violated the notice and comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553 (1982). Appellants sought an order reinstating that regulation. Counts II and III of the complaint alleged that the appellees violated the Act by failing to perform inspections, institute enforcement procedures, and collect reclamation fees at hundreds of mining operations that were evading the terms of the Act by improperly claiming the two-acre exemption. ⁹ Jurisdiction for the action was based on sections 520(a)(2) and 526(a)(1) of the Act. 30 U.S.C. Sec. 1270(a)(2) and 30 U.S.C. Sec. 1276(a)(1). The complaint also alleged jurisdiction under 28 U.S.C. Secs. 1331, 1337, 1361, 2201, and 2202 (1976 & Supp. V 1981).

On July 8, 1982, the district court granted appellees' motion to dismiss counts II and III for lack of venue. ¹⁰ The court ruled that the claims alleged in counts II and III were subject to the specific venue provision in section 520(c)(1) of the Act, 30 U.S.C. Sec. 1270(c)(1). Therefore, the court agreed that SOCM could bring these claims only in the districts where the mining operations that were allegedly evading the Act were located. Since none of these operations were located in the District of Columbia, the court found that venue was improper. Save Our Cumberland Mountains, Inc. v. Watt, No. 81-2238 (D.D.C. July 8, 1982), J.A. at 19.

The district court then directed the parties to file cross motions for summary judgment on count I, the only remaining claim. On August 2, 1982, three days after SOCM filed its motion, OSM promulgated a new two-acre rule (the third two-acre regulation). ¹¹ The district court ruled that the adoption of the third two-acre rule mooted the controversy. By order dated October 28, 1982, count I was dismissed. Save Our Cumberland Mountains, Inc. v. Watt, 558 F.Supp. 22 (D.D.C.1982).

SOCM appeals both district court orders.

II. VENUE ANALYSIS

We first review the district court's dismissal of counts II and III for lack of venue. The issue before us is the proper interpretation and application of the specific venue requirement contained in the citizens' suit provision of the Act.

The citizens' suit provision authorizes private persons to bring two types of civil actions to compel compliance with the Act. Section 520(a)(1), 30 U.S.C. Sec. 1270(a)(1), states that persons having an interest which may be adversely affected may bring a civil action against any entity (including any governmental authority) for violations of the Act or any rule, regulation, order or permit issued thereunder. Section 520(a)(2) provides for actions against the Secretary, or other regulatory authority, for failure to perform nondiscretionary duties. ¹² The claims asserted in counts II and III fall clearly within the purview of section 520(a)(2).

The venue provision at issue, found in section 520(c)(1), provides: "Any action respecting a violation of this chapter or the regulations thereunder may be brought only in the judicial district in which the surface coal mining operation complained of is located." 30 U.S.C. Sec. 1270(c)(1). ¹³ The district court found, and appellees contend, that this venue provision applies on its face to citizens' actions brought under section 520(a)(2). The district court further concluded the venue provision applies to actions seeking to compel the Secretary to perform duties required by the Act brought pursuant to any other jurisdictional statute. Save Our Cumberland Mountains, Inc. v. Watt, No. 81-2238 (D.D.C. July 8, 1982).

A.

To ascertain the intended scope of any statutory provision, we look first to the language used by Congress. CBS, Inc. v. FCC, 453 U.S. 367, 377, 101 S.Ct. 2813, 2820, 69 L.Ed.2d 706 (1981); Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)...