Watch v. U.S. Dep't of the Interior

• Decision Date: 25 November 2015
• Docket Number: Civil Action No. 13-cv-1606 (KBJ)
• Parties: Coal River Mountain Watch, Plaintiff, v. United States Department of the Interior et al., Defendants.
• Court: U.S. District Court — District of Columbia

146 F.Supp.3d 17

Coal River Mountain Watch, Plaintiff,

v.United States Department of the Interior et al., Defendants.

Civil Action No. 13-cv-1606 (KBJ)

United States District Court, District of Columbia.

Signed November 25, 2015

Daniel H. Lutz, Justin M. Gundlach, Thomas M. Gremillion, Washington, DC, for Plaintiff.

Clare Marie Boronow, Justin A. Torres, U.S. Department of Justice, Washington, Dc, for Defendants United States Department of the Interior, Office of Surface Mining Reclamation and Enforcement, Sally Jewell and Joseph Pizarchik.

MEMORANDUM OPINION AND ORDER

KETANJI BROWN JACKSON, United States District Judge

Plaintiff Coal River Mountain Watch (“Coal River”) is a non-profit organization that advocates for Appalachian communities affected by coal mining practices. Just over four years ago, Coal River determined that a particular West Virginia mining permit had not been utilized for more than three years after it had issued, and citing provisions of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1201 et seq ., Coal River asked the West Virginia Department of Environmental Protection (“WVDEP”) to declare that the permit had terminated automatically due to its nonuse. WVDEP declined to make the requested declaration, pointing to its own internal policy that requires the issuance of a warning notice to the permit holder prior to the termination of a permit. Coal River then took its automatic-termination contention to the regional office of the Office of Surface Mining (“OSM”) within the United States Department of the Interior, which agreed with Coal River that WVDEP's notice policy was arbitrary and capricious and contravened the pertinent provisions of the SMCRA. WVDEP requested a review of the regional office's determination from OSM's headquarters (which is stationed in the District of Columbia), and in a detailed letter (“Decision Letter”), OSM headquarters reached the opposite conclusion—i.e. , it determined that the SMCRA could, and should, be read as permitting WVDEP's pre-termination notice policy. Coal River brings the instant action against OSM, the Department of the Interior, and various officials in their official capacities (collectively referred to herein as “the government”) claiming that OSM headquarters' determination was a rulemaking that required notice-and-comment procedures, and that its substantive conclusion was contrary to governing law, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 –706. Notably, Coal River also filed a substantively identical APA lawsuit against these same defendants in the United States District Court for the Southern District of West Virginia (“SDWV”).

Before this Court at present is the government's motion to dismiss this case in order “[t]o avoid duplicative litigation and promote judicial economy and comity” in light of the pending action in the Southern District of West Virginia. (Defs.' Mot. to Dismiss Pl.'s Am. Compl. (“Defs.' Mot.”), ECF No. 19, at 13.)¹ The government cites cases in which one of two substantively identical and parallel actions is dismissed on equitable grounds, and asks this Court to follow that path. In response, Coal River contends that this Court has exclusive jurisdiction under 30 U.S.C. § 1276(a)(1) and thus cannot dismiss this matter in deference to another forum; moreover, and in the alternative, Coal River argues that the equities support keeping the case in this Court. (Pl.'s Opp'n to Defs.' Mot. (“Pl.'s Opp'n”), ECF No. 21, at 7–8.)

As explained fully below, this Court concludes that both parties' arguments are flawed: Coal River is mistaken to suggest that this Court must decide whether or not it has exclusive jurisdiction before considering the merits of the government's motion to dismiss, and when the merits of the government's motion are considered, the government is mistaken to conclude that the equities weigh strongly in favor of dismissing this case in deference to the pending action in West Virginia. What is more, because Coal River has filed a motion for voluntary dismissal in the West Virginia case—and neither party has provided any reason why that request might be denied—in all likelihood the West Virginia action will soon cease to exist, taking with it the government's only basis for characterizing the instant case as a “parallel action” at all. At bottom, the government's purported concern for “comity and [the] orderly administration of justice” (Defs.' Mot. at 13 (citation omitted)) appears to be a calculated attempt to force Coal River to pursue its APA claims in federal court in West Virginia, despite the fact that Coal River has selected the instant forum and without due regard to the most pertinent equitable considerations, which do not support overriding Coal River's choice under the circumstances presented here. Thus, the pending motion to dismiss will be DENIED .

I. BACKGROUND

A. Facts

This case centers on the SMCRA, a federal statute designed to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Hodel v. Va. Surface Mining & Reclamation Ass'n , 452 U.S. 264, 268, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (citation omitted). As part of its comprehensive regulatory scheme, the SMCRA provides for federal coordination with the states. For example, a State wishing to take “permanent regulatory authority over the surface coal mining operations on non-Federal lands within its borders must submit a proposed permanent program” to the Secretary of the Interior “for his approval [,]” id. at 271, 101 S.Ct. 2352 (internal quotation marks and footnote omitted), which the state of West Virginia has done, see 30 C.F.R. § 948.10. Significantly for present purposes, the SMCRA also provides that certain mining permits “shall terminate if the permittee has not commenced the surface coal mining operations covered by such permit within three years of the issuance of the permit[,]” subject to the regulatory authority's ability to grant reasonable extensions of time upon a showing that extensions are necessary because of extenuating circumstances and other exceptions not relevant here. 30 U.S.C. § 1256(c). The Department of the Interior has promulgated a regulation that tracks the SMCRA's language in this regard. See 30 C.F.R. § 773.19(e)(1) (“A permit shall terminate if the permittee has not begun the surface coal mining and reclamation operation covered by the permit within 3 years of the issuance of the permit.”). Furthermore, West Virginia has enacted a similar law with respect to its approved state mining program: a “permit terminates if the permittee has not commenced the surface mining operations covered by the permit within three years of the date the permit was issued.” W. Va. Code § 22–3–8(a)(3).

The events leading to the instant lawsuit commenced on June 6, 2008, when Marfork Coal Company, a West Virginia company, received a mining permit of the type that the SMCRA contemplates for its Eagle No. 2 mine. (Am. Compl. (“Compl.”), ECF No. 17, ¶¶ 32–33.) As of June 6, 2011—three years to the day after the permit issued—Marfork had not commenced mining, and Coal River asked WVDEP to deem Marfork's permit void under 30 U.S.C. § 1256 and its implementing regulations, which Coal River interpreted as establishing that Marfork's permit necessarily expired as of that date. (Id. ¶¶ 34, 36.) WVDEP alerted Marfork to the situation, and Marfork requested that the permit be extended—a request that WVDEP granted in February of 2012. (Id. ¶¶ 37–38.)

Shortly thereafter, Coal River raised the automatic-termination issue with the regional Field Office of OSM, which is located in Charleston, West Virginia (referred to herein as the “Charleston Field Office” or “CHFO”). In response, the Charleston Field Office sent WVDEP a ten-day notice requesting an explanation of its position with respect to the Markfork permit. (Id. ¶¶ 39–40; Defs.' Mot. at 10.)² WVDEP then informed CHFO of its internal policy that requires WVDEP to give a permit holder notice before terminating a permit, and it explained that, because WVDEP had given no such notice to Marfork, the permit at issue had not terminated prior to its extension. (Compl. ¶ 41.) CHFO evaluated WVDEP's response and concluded that it was unsatisfactory because, in CHFO's view, the plain meaning of the SMCRA requires that a mining permit terminate if three years pass without the commencement of mining, and nothing in West Virginia's federally approved mining program requires pre-termination notice. (See id. ¶ 43.) Thus, according to CHFO, WVDEP's notice requirement contradicted the SMCRA in a manner that was arbitrary and capricious, and as a result, the federal government was authorized to take corrective action with respect to that apparent violation, see 30 C.F.R. § 843.12(a)(2). (See Compl. ¶ 43.)

Thereafter, WVDEP requested that OSM's headquarters in the District of Columbia review the Charleston Field Office's decision (see id. ¶ 44) pursuant to 30 C.F.R. § 842.11(b)(1)(iii)(A), which led to the issuance of the Decision Letter at the heart of this case. In several pages of detailed reasoning, an OSM Deputy Director explained why OSM disagreed with CHFO's interpretation of the statute, and, consequently, why OSM disagreed with that office's conclusion on the automatic-termination question. (See Letter from Glenda H. Owens, OSM Deputy Director, to Thomas Clarke, WVDEP Director, Ex. A to Defs.' Mot., ECF No. 19-1 (“Decision Letter”), at 10–14.) After recounting the procedural history of the matter and the relevant regulatory and statutory provisions, the letter proceeded to “set forth OSM's legal interpretation of the applicable provisions of law.” (Id. at 2.) OSM noted that its investigation into “whether ... WVDEP's interpretation [wa]s correct” ( id. at 10) was based upon the well-settled principle that “if SMCRA is silent on the issue of whether termination of...