United States v. Shelton Coal Corp.

• Decision Date: 30 June 1986
• Docket Number: Civ. A. No. 83-0254-B.
• Citation: 647 F. Supp. 264
• Parties: UNITED STATES of America, Plaintiff, v. SHELTON COAL CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Virginia

647 F. Supp. 264

UNITED STATES of America, Plaintiff, v. SHELTON COAL CORPORATION, Defendant.

Civ. A. No. 83-0254-B.

United States District Court, W.D. Virginia, Big Stone Gap Division.

June 30, 1986.

Morgan E. Scott, Roanoke, Va., David W. McNabb, Asst. U.S. Attys., Knoxville, Tenn., Maria Pizuka, Dept. of Justice, Washington, D.C., for plaintiff.

Daniel R. Bieger, Abingdon, Va., for defendant.

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This complaint is brought at the request of the Secretary of Interior (the Secretary) for recovery of delinquent reclamation fees and interest thereon due and owing under the provisions of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1201, et seq.) (the Act). Pursuant to 30 U.S.C. § 1232(a), all coal mining operators who are subject to the provisions of the Act are required to pay to the Secretary for deposit into a fund, a reclamation fee of thirty-five cents per ton of coal produced by surface mining and fifteen cents per ton of coal produced by underground mining. These reclamation fees are paid into a trust fund administered by the Secretary for the restoration of land and water resources previously suffering from the adverse effects of coal mining.

Defendant in this case relies upon 30 U.S.C. § 1278, which provides:

Provisions of this Act shall not apply to any of the following activities ... the extraction of coal for commercial purposes where the surface mine operation affects two acres or less.

I.

The facts in this case are outlined in the stipulation of fact filed with the court. These undisputed facts reveal that the defendant operated an underground coal mine under state permits during the third and fourth calendar quarters of 1980 and the first calendar quarter of 1981, producing sufficient coal to generate a potential reclamation fee liability of $8,116.33. Including interest and penalties through May 31, 1986, this fee has accumulated to $13,649.39 plus additional interest and penalties of $121.74 per month beginning June, 1986. It is further undisputed that the mine area covered 1.55 acres and that the defendant utilized a pre-existing haul road in connection with its mining activities. Total acreage of the haul road and the mine area is well in access of two acres. The haul road was maintained by Blackwood Fuel Company and was permitted to Blackwood Fuel Company under its Permit Number 801. Thus, the issue is clearly drawn as to whether or not in 1981 at the time of this operation, the haul road should be included in the "affected area" of defendant's operations as defined by the Act. If it is not included, then the defendant was under the two-acre exemption and does not owe any reclamation fees.

II.

There can be no question that haul roads were not expressly included in the computation of the two acres by regulations until amendments were made to 30 C.F.R. § 700.11 in July 1982. Therefore, the question arises as to whether or not the regulation of July 1982 is to be construed retroactively. In making such a determination, it is necessary to determine what laws and regulations did exist prior to July 1982 and whether the amended regulation of July 1982 was a recitation of prior law or whether it overruled prior law. In Sam v. United States, 682 F.2d 925, 932 (Ct.Cl.1982), the following is stated:

Ordinarily, if a new regulation or interpretation merely recites settled prior law or policy, then retroactive application of the regulation or interpretation is proper. If, however, the new regulation or interpretation overrules prior law or policy, the new regulation or interpretation will not, depending upon various factors, be given retroactive effect. This distinction is obviously grounded upon notions of fairness to the involved parties. Citing, Anderson, Clayton & Co. v. United States, 562 F.2d 972 (5th Cir.1977), cert. denied, 436 U.S. 944 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978).

Accordingly, the first matter of consideration is the Act itself as it applies to haul roads in relation to the definition of "disturbed areas." The Act mentions haul roads specifically in 30 U.S.C. § 1291(28). Haul roads are included as part of the "disturbed area" under the following conditions:

Such areas shall also include any adjacent lands the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of such activities and for haulage.

There is no evidence in this case that the haul road is a new road. Indeed, it is stipulated to the contrary. Furthermore, there is no evidence in this case that the road was improved or maintained by the defendant. There is evidence that the road was used to gain access to the mine site and for haulage to and from the mine site. The problem involved in this case is that the road was maintained and was also used by another mining company to which it was specifically permitted. While it is clear from the Act that haul roads are included in determining "disturbed area," there is no case authority and the statute is unclear as to whether two or more coal companies shall be charged for the same road. Both parties cite the court to administrative proceedings which occurred prior to July 1982 which would tend to support their respective interpretations and positions.

Defendant cites two cases decided by administrative law judges which were final and binding on the Secretary. Both of these cases support the defendant's position in this case, to-wit: that OSM cannot double count the haul road against two companies. In the case dated March 9, 1981 involving Golden Chip Coal Company, the administrative law judge said:

Since two men cannot father the same child, neither can Golden Chip be responsible for that which is legally attached to A & D.... Since A & D has permitted the road, A & D is responsible for the road and to charge maintenance to Golden Chip is unjustified.

Another administrative law judge, on March 11, 1982, in a case involving W.D. Martin, stated:

It is completely improper to establish dual liability; therefore, the 0.44 acres in the haul road cannot be counted in the disturbed area of Martin.

On the other hand, OSM cites two cases which were decided after July 1982, to-wit: Rhonda Coal Co., Inc., 89 I.D. 460, September 21, 1982, and Virginia Fuels, Inc., 89 I.D. 604, November 30, 1982, stating that where an access and haul road is used by more than one operator, the Board tentatively divided the acreage between the two companies.

If the present case turned solely on a review of these conflicting cases, the court is of the opinion that the standard set forth in Anderson, Clayton & Co. v. United States, 562 F.2d 972 (5th Cir.1977) would direct this court to decide this case in favor of OSM. "It is...