Tug Valley Recovery Center v. Watt, 82-1194
| Decision Date | 29 March 1983 |
| Docket Number | No. 82-1194,82-1194 |
| Citation | 703 F.2d 796 |
| Parties | TUG VALLEY RECOVERY CENTER, Appellant, v. James WATT, Secretary of the Interior; David C. Callaghan, Director of the West Virginia Department of Natural Resources; Willis Hertig, Deputy Director of the West Virginia Department of Natural Resources; James Pitsenbarger, Chief of Division of Reclamation, Department of Natural Resources; David W. Robinson, Chief of Water Resources, Department of Natural Resources; Walter Miller, Director, West Virginia Department of Mines, in their official capacities as listed and as Members of the West Virginia Reclamation Commission; West Virginia Reclamation Board of Review, Paul Nay, O.O. Neely, Jr., Morgan Lyons, Dr. Henry Rauch, and John W. Straton, in their official capacity as members of the Reclamation Board of Review, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John McFerrin (Tobias J. Hirshman, Charleston, W.Va., Appalachian Research and Defense Fund, Inc., on brief), for appellant.
Marye L. Wright, Asst. U.S. Atty., Charleston, W. Va., Leonard Knee, Asst. Atty. Gen., State of W. Va., Charleston, W. Va. (David A. Faber, U.S. Atty., Charleston, W. Va., on brief), for appellees.
Before RUSSELL, HALL and ERVIN, Circuit Judges.
Tug Valley Recovery Center ("Tug Valley"), a West Virginia environmental organization, brings this appeal claiming the Secretary of the United States Department of the Interior ("the Secretary") violated the Surface Mining Control and Reclamation Act of 1977 and the due process clause of the fifth amendment. Specifically, Tug Valley contends the Secretary breached his statutory and constitutional duties by approving a state environmental regulatory program that included a board of review composed of individuals representing specific interest groups. In a separate claim brought under 42 U.S.C. Sec. 1983, Tug Valley also names certain state defendants, claiming that because the regulatory program implemented by these state officials relegated Tug Valley to an appeal before a biased review board, Tug Valley's constitutional due process rights as well as certain statutory rights were denied. The district court dismissed the case for lack of subject matter jurisdiction, holding that under federal law, Tug Valley's complaint could only be brought in the United States District Court for the District of Columbia. We affirm.
In 1977, Congress passed the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. Sec. 1201 et seq., which provides for comprehensive regulation of surface coal mining and reclamation of mined lands. After an initial period of direct regulation by the Department of the Interior, primary responsibility for the supervision of mining and reclamation activities is to be delegated to the individual states. This transfer of authority takes place when a state submits an acceptable regulatory program that is approved by the Secretary. Under section 503(a) of SMCRA, 30 U.S.C. Sec. 1253(a), the state program must demonstrate that the Under section 503(b), 30 U.S.C. Sec. 1253(b), the Secretary may not approve any state program "until he has ... found that the State has the legal authority and qualified personnel necessary for the enforcement of the environmental protection standards." The accompanying regulations restate that the Secretary shall not approve a program unless it "provides for the State to carry out the provisions and purposes of the Act" and does not contain laws or regulations which would interfere with the Act. 30 C.F.R. Sec. 732.15.
One of the provisions of SMCRA, section 517(g), 30 U.S.C. Sec. 1267(g), requires that "[n]o employee of the State regulatory authority performing any function or duty under this chapter shall have a direct or indirect financial interest in any underground or surface coal mining operation." Pursuant to this provision, the Secretary promulgated regulations in 1977 defining "employee" and "direct or indirect financial interest." "Employee" was defined as:
(a) any person employed by the State Regulatory Authority who performs any function or duty under the Act, and (b) advisory board or commission members and consultants who perform any function or duty under the Act, if they perform decision-making functions for the State Regulatory Authority under the authority of the State law or regulations. However, members of advisory boards or commissions established in accordance with state law or regulations to represent multiple interests are not considered to be employees ....
"Direct financial interest"
[m]eans ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.
"Indirect financial interest"
[m]eans the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by his or her spouse, minor child and other relatives, including in-laws residing in the employee's home.
30 C.F.R. Sec. 705.5 (1981).
On March 3, 1980, West Virginia presented to the Secretary its program for regulation of surface mining and reclamation. As an integral part of this program the state submitted the West Virginia Coal Mining and Reclamation Act of 1980, sections twenty-three and twenty-four of which create the Reclamation Board of Review ("RBR"), a body empowered to review any notice, order, or final determination of the state director of the Department of Natural Resources and any order of the Reclamation Commission. 1 W.Va.Code Secs. 20-6-23 and -24. The RBR is composed of five members appointed by the Governor, who "by reason of ... previous training and experience, can be classed as ... capable and experienced" in the respective areas of coal mining, agriculture, forestry, engineering, and water pollution control. W.Va.Code Sec. 20-6-23(a).
On October 20, 1980, Secretary Andrus approved most of the West Virginia plan, including the RBR, but withheld final approval pending certain revisions in the proposed program. Tug Valley, which participated in the federal administrative proceedings leading up to approval, began this suit on December 19, 1980, charging that the Secretary's endorsement of the RBR violated the Constitution and federal law and that acts of state officials gave rise to a cause of action under 42 U.S.C. Sec. 1983. On January 21, 1981, Secretary Watt formally certified a revised West Virginia plan. Tug Valley then launched a second action, this one naming Secretary Watt, which was later consolidated with the original lawsuit.
Upon approving the RBR, Secretary Andrus responded to criticism raised in public hearings that the RBR violated the conflict of interest prohibitions of section 517(g) of SMCRA. 45 Fed.Reg. 69270 (1980). Noting that section 517(g) applied only to "employees," the Secretary cited 30 C.F.R. Sec. 705.5, which states that members of advisory boards or commissions established in accordance with state law or regulations to represent multiple interests are not to be considered employees. The Secretary concluded that the RBR was established to represent multiple interests; therefore, its members were exempt from the conflict rules of section 517(g).
Tug Valley asserts jurisdiction to protest the Secretary's action under section 526(a)(1) of SMCRA, 30 U.S.C. Sec. 1276(a)(1), which states:
Any action of the Secretary to approve or disapprove a state program ... shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is at issue. Any action by the Secretary promulgating national rules and regulations ... shall be subject to judicial review in the United States District Court for the District of Columbia .... A petition for areview of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day.
This provision gives a cause of action to "any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary." Id.
Tug Valley's substantive claims are threefold. First, it contends the Secretary acted in violation of section 503 of SMCRA and 30 C.F.R. Sec. 705.5 by approving a state plan that included, contrary to the mandate of section 517(g) of SMCRA, an appeals review board composed of individuals with direct or indirect financial interests in underground or surface coal mining. Second, Tug Valley alleges that the Secretary's approval of this portion of the state program violated the due process clause of the fifth amendment by "establish[ing] a system with inherent conflicts of interest." Third, Tug Valley contends that the implementation by state officials of the approved plan relegates it to an appeal before a biased review board in contravention of its fourteenth amendment and state constitutional due process rights.
In defense the Secretary argues first that the district court for the Southern District of West Virginia lacked subject matter jurisdiction, since Tug Valley's challenge amounted to an attack on 30 C.F.R. Sec. 705.5, which under section 526(a)(1) of SMCRA could only be brought in the district court for the District of Columbia within sixty days of promulgation. Second...
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