U.S. v. Dix Fork Coal Co., 81-5125

Citation692 F.2d 436
Decision Date09 November 1982
Docket NumberNo. 81-5125,81-5125
Parties, 13 Envtl. L. Rep. 20,244 UNITED STATES of America, Plaintiff-Appellee, v. DIX FORK COAL CO., et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Forrest Cook, J.L. Roark, Whitesburg, Ky., David E. Arvin, Hopkinsville, Ky., for defendants-appellants.

Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty., Lexington, Ky., Courtney Shea, Atty./Advisor, Dept. of Interior, Office of the Field Sol., Knoxville, Tenn., for plaintiff-appellee.

Before LIVELY and KRUPANSKY, Circuit Judges, and BROWN, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Dix Fork Coal Company (Dix Fork), during the course of a mining operation, created an imminent and hazardous danger to the health or safety of the public as defined in regulations promulgated pursuant to the Surface Mining Control and Reclamation Act of 1977 (Act), 30 U.S.C. Sec. 1201 et seq. The Secretary of the Interior (Secretary), charged with enforcement and implementation of the Act through the Office of Surface Mining (OSM), issued to Dix Fork a Cessation Order (CO) and Notice of Violation (NOV) for failure to provide adequate drainage for all access and haul roads and failure to surface access and haul roads with a durable material. These violations caused water and shale to be directed below the access road thereby aggravating existing land slides located above a public road and residential dwelling. Dix Fork ceased mining operations but failed to perform the remedial affirmative obligations ordered by the Secretary whereupon the latter, through the Attorney General, initiated an action in district court seeking compliance. 30 U.S.C. Sec. 1271(c). The district court ordered Dix Fork and its corporate agent, Wilford Niece, to provide drainage channels to divert surface run-off around land slides, remove or otherwise stabilize the material which was contributing to movement of the lower land slide, provide adequate drainage for the access road and remove toxic material from the access road and surface the road with a durable material. This appeal ensued.

It is initially incumbent upon this Court to ascertain federal jurisdiction and applicability of the Act to the mine site in issue. The provisions of the Surface Mining Control and Reclamation Act of 1977 are inapplicable to commercial extractions "where the surface mining operation affects two acres or less." 30 U.S.C. Sec. 1278(2). The Surface Disturbance Mining Permit issued to Dix Fork by the Commonwealth of Kentucky authorized the disturbance of 1.84 acres in Knott County, Kentucky. While Dix Fork implores this Court to construe the acreage incorporated in the state mining permit as a benchmark of threshold federal jurisdiction, such a practice, however objective, would clearly negate the import of the statutory language which provides that the Act is applicable to all "surface mining operations[s]" which "affect" an area in excess of two acres. The only pertinent jurisdictional inquiry is the acreage which was actually affected by the mining operation rather than the acreage which was authorized to be affected. The district court concluded, subsequent to an evidentiary hearing, that Dix Fork had affected an area of 2.89 acres. A thorough review of the record fails to leave this Court "with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); United States v. Jabara, 644 F.2d 574 (6th Cir. 1981); Louisville & Nashville Railroad Company v. C.I.R., 641 F.2d 435, 438 (6th Cir. 1981); Johnson v. United States, 600 F.2d 1218 (6th Cir. 1979); Rule 52(a), Fed.R.Civ.P.

The district court's failure to abstain or hold its proceedings in abeyance until a resolution issued in contemporaneous state proceedings before the Kentucky Department of Natural Resources involving the same mine and many of the same issues is asserted on appeal as error. The issue of abstention, not having been presented to the trial court, cannot be raised for the first time on appeal. Union Planters National Bank of Memphis v. Commercial Credit Business Loans, Inc., 651 F.2d 1174, 1187 (6th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); Wolfel v. Sanborn, 666 F.2d 1005, 1007 (6th Cir. 1981). While "[t]here may ... be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below", Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941), the action sub judice fails to prompt this Court to depart from the general rule.

The pertinent issue on appeal joins the authority of a district court to impose affirmative remedial obligations upon a permittee's agent as predicated upon 30 U.S.C. Sec. 1271(c) which pertinently provides:

(c) The Secretary may request the Attorney General to institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court ... whenever such permittee or his agent (A) violates or fails or refuses to comply with any order or decision issued by the Secretary under this chapter ... (emphasis added).

Accordingly, Sec. 1271(c) authorizes the district court to issue an "appropriate" order against both a permittee and its "agent". In the action sub judice Wilford Niece, the father of Ricky Niece who was president and 52% shareholder of Dix Fork, was ordered, in conjunction with Dix Fork, to perform the aforementioned remedial obligations resulting from his contributory role as Dix Fork's "agent". The relationship between Wilford Niece and Dix Fork is evidenced in the district court's following finding of fact which is supported by the record and unchallenged by the parties:

21. Although Wilford Niece is not an officer or stockholder of Dix Fork, he is a spokesman for and advisor to the corporation. Furthermore, he is the operator of Niece Mining Co., which owned the equipment that was used at this particular site and which moved the dirt for Dix Fork to get ready for the deep mine. He is also the guarantor on a bank promissory note for Dix Fork. His financial arrangement with Dix Fork was for him to receive the coal that was "faced up" in return for the use of his equipment.

The record discloses that Ricky Niece, Dix Fork's president and majority shareholder, delegated to Wilford Niece the responsibility of acting as Dix Fork's spokesman to OSM and as advisor to Dix Fork in all matters concerning compliance with the Act. Wilford Niece voluntarily accepted and executed the permittee's delegation of responsibility ensuring compliance with the Act throughout the mining operation by Dix Fork.

Confronting the threshold issue of whether an agency relationship existed between the permittee Dix Fork and Wilford Niece so as to expose the latter to the liability of an "appropriate" order under the authority granted in Sec. 1271(c), guidance is supplied by neither the Act nor regulations promulgated thereunder in defining the term "agent". The parties on appeal have each supplied common-law definitions of the term "agent" with different criteria and supportive of their respective positions in this action. 1 These definitions are rejected as not probative and incongruent with the statutory framework underlying this action.

In undertaking the amorphous task of defining the term "agent" as intended by Sec. 1271(c), it is perhaps instructive to "transplant" a definition from a parallel statutory framework embodying a similar policy, purpose and structure. The utility of such a transplant has been recognized in York v. Tennessee Crushed Stone Association, 684 F.2d 360, (6th Cir. 1982) wherein case law interpreting the term "agent" as used in Title VII, 42 U.S.C. Sec. 2000e et seq., was applied in an action predicated upon the parallel Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. Therein it was observed that "an agent of an employer who may be sued as an employer in Title VII suits has been construed to be a supervisory or managerial employee to whom employment decisions have been delegated by the employer." Id. at 362. Mary York counsels that in the absence of contrary legislative intent an overly restrictive common-law definition of agent which would subvert the purpose of the statutory framework in which...

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  • US v. Hubler, Civ. A. No. 88-2105.
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    ...These facts are sufficient to make Hubler and Taylor agents of H & T for purposes of 30 U.S.C. § 1271(c). See United States v. Dix Fork Coal Co., 692 F.2d 436, 440 (6th Cir. 1982) ("agent" includes "person charged with the responsibility for protecting society and the environment from the a......
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    ...This, despite the fact that the issue of abstention was not presented to the Bankruptcy Court below herein. Cf. United States v. Dix Fork Coal Co., 692 F.2d 436 (6th Cir.1982). This is because: "* * * The abstention doctrine is not an automatic rule applied whenever a federal court is faced......
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    ...the cabinet pursuant to KRS Chapter 350. See 30 U.S.C. § 1201 et seq.; KRS 350.025; KRS 350.028(5). Indeed, in United States v. Dix Fork Coal Co., 692 F.2d 436 (6th Cir.1982), the court addressed the fact that federal laws and regulations fail to define the term "agent" for purposes of 30 U......
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