Save Our Cumberland Mountains, Inc. v. Lujan

• Decision Date: 11 January 1993
• Docket Number: No. 90-5374,90-5374
• Citation: 963 F.2d 1541
• Parties: , 295 U.S.App.D.C. 374, 60 USLW 2755, 22 Envtl. L. Rep. 21,179 SAVE OUR CUMBERLAND MOUNTAINS, INC., et al., Plaintiffs-Appellees, v. Manuel LUJAN, Secretary of the Interior, et al., Defendants-Appellees, and National Coal Association and American Mining Congress, Intervenors-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1541

963 F.2d 1541

34 ERC 1876, 295 U.S.App.D.C. 374, 60

USLW 2755,

22 Envtl. L. Rep. 21,179

SAVE OUR CUMBERLAND MOUNTAINS, INC., et al., Plaintiffs-Appellees, v. Manuel LUJAN, Secretary of the Interior, et al., Defendants-Appellees and National Coal Association and American Mining Congress Intervenors-Appellants.

No. 90-5374.

United States Court of Appeals District of Columbia Circuit.

Argued March 16, 1992.

Decided May 22, 1992.

Rehearing and Rehearing En Banc

Denied Aug. 18, 1992.

Order Granting Motion to Stay Mandate

Jan. 11, 1993.

Thomas C. Means, with whom John A. MacLeod and J. Michael Klise for Nat. Coal Ass'n, and Edward M. Green and Stuart A. Sanderson, Washington, D.C., for American Min. Congress were on the joint brief, for appellants.

John T. Stahr, Attorney, Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Robert L. Klarquist, and Alfred T. Ghiorzi, Attorneys, Dept. of Justice, Washington, D.C., were on the brief, for Federal appellees.

L. Thomas Galloway, with whom Judith A. Mather and Robin H. Sangston, Washington, D.C., were on the brief, for appellees, Save Our Cumberland Mountains, Inc., et al.

Before RUTH BADER GINSBURG, BUCKLEY and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This case concerns the proper forum for "citizen suits" under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. §§ 1201 et seq. Section 520 of the Act authorizes "any person having an interest which is or may be adversely affected" to commence a civil action to compel compliance with the Act or "any rule, regulation, order or permit" thereunder. 30 U.S.C. § 1270(a). This "citizen suit" prescription describes two categories of civil actions: (1) complaints against the United States or other governmental instrumentality for violation of the Act or any rule, regulation, order or permit issued pursuant thereto, or against any other person for violating a SMCRA-implementing rule, regulation, order or permit, SMCRA § 520(a)(1), 30 U.S.C. § 1270(a)(1); ¹ (2) complaints against the Secretary or "the appropriate State regulatory authority" for "failure ... to perform any act or duty under [SMCRA] which is not discretionary with the [regulator]." SMCRA § 520(a)(2), 30 U.S.C. § 1270(a)(2). On the forum for "citizen suits," SMCRA § 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. § 1270(c)(1).

The second category of citizen civil action is at issue here. Plaintiff Save Our Cumberland Mountains, Inc. (SOCM) ² commenced this suit pursuant to SMCRA § 520(a)(2) against the Secretary of the Interior and the Director of the Office of Surface Mining Reclamation and Enforcement (OSM) to check the government's alleged failure, nationwide, effectively to enforce the Act. SOCM sought an order, nationwide in scope, compelling the Secretary and OSM (collectively, the Secretary) to assess and collect civil penalties against cited violators and to take alternative enforcement action against operators who fail, despite notice and penalties, to abate their violations.

SOCM chose the U.S. District Court for the District of Columbia as the forum for its citizen suit. Concededly, no "surface coal mining operation ... is located" in this judicial district. See SMCRA § 520(c)(1), 30 U.S.C. § 1270(c)(1). SOCM maintains, however, that the special forum rule contained in SMCRA's citizen suit provision governs only suits directed primarily against mine operators, i.e., violators of the regulatory prescriptions, civil actions of the kind delineated in SMCRA § 520(a)(1). Suits against the official enforcers for failure to enforce, i.e., complaints of inaction by the Secretary or "the appropriate State regulatory authority," suits of the kind delineated in SMCRA § 520(a)(2), SOCM argues, are not subject to the forum rule of SMCRA § 520(c)(1). Instead, according to SOCM, suits against the regulators to compel enforcement may be brought in the district where those regulators reside, in this case, in the nation's capital. See 28 U.S.C. § 1391(b), (e). Alternately, SOCM argues that the forum rule stated in SMCRA § 520(c)(1) is waivable, and that the Secretary in fact waived the limitation.

Recognizing that the statutory construction question is close, we hold that the special forum rule contained in SMCRA § 520(c)(1), 30 U.S.C. § 1270(c)(1), controls all citizen suits described in SMCRA § 520(a), 30 U.S.C. § 1270(a), and is not confined to suits directed primarily against mine operators. We further hold that the rule is not waivable. Our conclusions are consistent with precedent binding in this circuit, New Mexico ex rel. Energy and Minerals Dep't v. U.S. Dep't of Interior, 820 F.2d 441 (D.C.Cir.1987), and with this fundamental consideration: courts customarily adjudicate episode- or area-specific controversies; federal judges, applying federal legislation, generally adhere to that mode of adjudication absent clear instruction from Congress--as in the case of review of rulemakings setting nationwide standards--that more encompassing action has been committed to the judges' charge.

I. Background

A. SMCRA's Regulatory Regime

SMCRA "establish[es] a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202(a). OSM, an office within the Department of the Interior, administers and enforces the Act. 30 U.S.C. § 1211(c). A state, by developing a SMCRA-implementation plan approved by the Secretary, may assume jurisdiction over non-federal surface coal mining operations within its borders. 30 U.S.C. § 1253. Indeed, Congress anticipated that primary responsibility for the regulation of surface mining would "rest with the States." 30 U.S.C. § 1201(f). A federally-designed program governs in states that have not put in place an acceptable implementation plan of their own. 30 U.S.C. §§ 1254(a), (b), 1271(b). ³

SMCRA prohibits the operation of a surface mine without a permit. 30 U.S.C. § 1256. The Act instructs OSM to notify the state regulatory authority, in states that have one, when OSM has reason to believe that an operator is in violation of SMCRA or a permit. If no state authority exists, or the state fails to act, OSM must proceed with an inspection. When a violation is confirmed, OSM "shall issue" a notice prescribing a reasonable time (not exceeding 90 days) for abatement of the violation. To check violations that persist despite the notice to abate, the statute directs OSM to order an immediate cessation of operations. 30 U.S.C. § 1271(a)(1), (3).

Once a cessation order issues, OSM must assess a civil penalty against the mine of at least $750 per day. 30 U.S.C. § 1268(h). OSM regulations limit such penalties to a period of 30 days. 30 C.F.R. § 723.15(b)(2). If the violation has not been abated by then, OSM "shall take appropriate [alternative enforcement] action"; appropriate measures include criminal prosecution, proceedings to hold corporate officers or agents personally liable for civil penalties, proceedings to suspend or revoke an operator's permit, and proceedings to obtain injunctive relief. See 30 U.S.C. §§ 1268(e) & (f), 1271(a)(4) & (c).

A permit applicant must submit with the application a list of all SMCRA violation notices, indicating the final resolution of each notice. 30 U.S.C. § 1260(c). If any surface mine "owned or controlled by the applicant" has an unabated violation, the Act instructs OSM not to issue a permit until the applicant proves that the violation has been or is being corrected. Id.

B. The History of this Litigation

SOCM commenced this action in 1981 charging the Secretary with large-scale failure, throughout the nation, to enforce SMCRA. SOCM alleged that in over 700 instances, the Secretary had not followed up notices of violation with the imposition of mandatory penalties. The complaint further asserted that the Secretary had allowed hundreds of violators to continue operations, with violations unchecked, after expiration of the 30-day penalty period. Seeking court-ordered compliance by the Secretary with the Act's enforcement commands, SOCM alleged jurisdiction under SMCRA § 520(a)(2), 30 U.S.C. § 1270(a)(2) (authorizing citizen suit against Secretary for failure to perform nondiscretionary duties), as well as 28 U.S.C. §§ 1331, 1337, 1361, 2201 and 2202 (federal question, commerce regulation, mandamus, declaratory judgment provisions).

The Secretary moved to dismiss on the ground, inter alia, that SMCRA § 520(c)(1), 30 U.S.C. § 1270(c)(1), allowed suit "only in the judicial district in which the surface coal mining operation complained of is located." The Secretary maintained that section 520(c)(1) constituted a jurisdictional limitation. The district court denied the motion, concluding that section 520(c)(1) was not jurisdictional in character but was merely a venue provision, one designed to serve the convenience of litigants; emphasizing that SOCM "challenge[d] a purported national policy," the district court held applicable "the general venue statute, 28 U.S.C. § 1391(b), which provides venue within [the District of Columbia] as the place where the claim [against the Secretary] arose." Save Our Cumberland Mountains, Inc. v. Watt, 550 F.Supp. 979, 980-81 (D.D.C.1982).

Taking up the merits of SOCM's complaint, the district court determined that SMCRA renders mandatory the Secretary's duty to collect civil penalties and initiate alternative enforcement action. That duty, the court concluded, had not been fulfilled. Finding no issues of material fact genuinely in dispute, the court pronounced summary judgment for SOCM. Id. at 983. Following the entry of an order granting injunctive relief, the...