Yates v. Island Creek Coal Co.

• Decision Date: 05 March 1980
• Docket Number: Civ. A. No. 78-0285-B.
• Citation: 485 F. Supp. 995
• Parties: Eugene and Betty YATES et al., Plaintiffs, v. ISLAND CREEK COAL CO. et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

485 F. Supp. 995

Eugene and Betty YATES et al., Plaintiffs, v. ISLAND CREEK COAL CO. et al., Defendants.

Civ. A. No. 78-0285-B.

United States District Court, W. D. Virginia.

March 5, 1980.

John Jeffrey Fluck, Abingdon, Va., for plaintiffs.

Larry B. Kirksey, Woodward, Miles & Flannagan, Bristol, Va., Carl E. McAfee, Cline, McAfee & Adkins, Norton, Va., for defendants.

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This matter is before the court on defendants' motion to dismiss for lack of jurisdiction. Plaintiff has asserted two independent bases of jurisdiction under 28 U.S.C. § 1331: (1) 33 U.S.C. § 407, the Rivers and Harbors Appropriation Act of 1899; or, (2) 30 U.S.C. § 1270(a), the Surface Mining Control and Reclamation Act of 1977. The initial question regarding both statutes is whether they create a private cause of action allowing these plaintiffs to assert their claims.

Plaintiffs, members of the same family, lived in close proximity to each other in a section known as Deskins Hollow until their homes and personal effects were lost when high water engulfed their property on April 4, 1977. They allege the flood was the end result of strip mining operations by the named defendants on the land across the stream that borders their property. Plaintiffs ask for damages for the injuries caused them by the defendants' negligent creation and maintenance of stripped slopes on the banks of the stream; they base their claim on 33 U.S.C. § 407, which prohibits the discharge of refuse into navigable waters, and on 30 U.S.C. § 1270(f), which allows damage actions against operators who have violated the strip mining act. They further allege that they are threatened by future landslides and ask for a permanent injunction ordering defendants to bring the strip mining site into conformity with the Surface Mining and Reclamation Act of 1977.

I.

Plaintiffs rely on § 407 of the Rivers and Harbors Appropriation Act to create a private cause of action under which they can recover for their injuries.¹ The section prohibits discharge of refuse into navigable waters, and on its face does not provide for such a cause of action. This section has previously been held not to create a private right of action in several cases. City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (4th Cir. 1979); Parsell v. Shell Oil Co., 421 F.Supp. 1275 (D.Conn. 1976); Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d 613 (1973); Lavagnino v. Porto-Mix Concrete, Inc., 330 F.Supp. 323 (D.Colo.1971); Chambers-Liberty Counties Navigation District v. Parkers Bros. & Co., 263 F.Supp. 602 (S.D. Tex.1967).

The U.S. Supreme Court has limited inference of private rights of action when Congress has not expressly provided for one. Touche Ross & Co. v. Redington, 442 U.S. 560, 565, 99 S.Ct. 2479, 2483, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (majority opinion), 713 (Rehnquist, J., concurring), 781 (Powell, J., dissenting) (1979). Although one of the reasons given for not allowing a private cause of action in the past was that no obstruction to navigation had been alleged in the complaint,² Parsell v. Shell Oil Co. goes further in its analysis to decide that under the circumstances no cause of action could be inferred. Likewise, this court must hold that no cause of action can be inferred to allow these plaintiffs to proceed under the statute.

This court must agree with the analysis used by the Parsell court in concluding that Congress did not intend for § 407 to be used for certain private remedial measures.³ The standards for determining whether a statute impliedly creates a private cause of action are set forth by the U.S. Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975):

First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? citations omitted.

Id. at 78.

The Supreme Court has held that the principal beneficiary of the Act is the government itself. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). The Act was designed to protect the navigable waters of the United States for the benefit of all, rather than for private parties. Parsell, 421 F.Supp. at 1280. It was definitely not created to protect a landowner who had suffered from the failure of strip miners to reclaim mined land.

The statutory scheme of the Rivers and Harbors Act reveals that the government has the primary responsibility for enforcing the Act, which again is to protect abuses of the nation's waters. Violation of § 407 can be punished by fine or imprisonment or both. 33 U.S.C. § 411. In addition, section 413 orders the Department of Justice to "conduct the legal proceedings necessary to enforce the provisions of sections . . . 407, . . . and 411 . . . of this title." To imply a private remedy would interfere with the criminal enforcement of the Act. If a conviction is obtained, then one-half of the fine is paid to the informant who gave the information leading to the conviction. The Parsell court held that to imply a private remedy would be inconsistent with the legislative purpose of the Act, since "informer's fines may be awarded only after a criminal prosecution has taken place." 421 F.Supp. at 1280.

Finally, the cause of action alleged is better left to the state courts as a matter of state law.⁴ It would be a strained conception of the Act to perceive it as creating a cause of action to recompense parties who have been damaged by high water because of the alleged abuse of defendants' strip mine.

II.

Plaintiffs also maintain there is a jurisdictional basis for their cause of action under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328. This argument is two-fold: (1) defendant's failure to undertake continuing reclamation renders them susceptible to a citizen's suit for damages under 30 U.S.C. § 1270(f); or (2) an emergency situation exists upon which the Secretary of the Interior should take action under 30 U.S.C. § 1240, and since such action has not been taken, then plaintiffs may bring a civil suit against the Secretary to force such action under 30 U.S.C. § 1270(a).

Plaintiffs' first argument must fail. The actions about which they complain occurred before the effective date of the Act; plaintiffs admit it would be stretching the point to suggest that the mining operations in question were in violation of the reclamation provisions outlined in the Act, given that mining operations had ceased prior to the Act's effective date. They go on to argue, however, that the responsibility to reclaim the land is an ongoing obligation and since defendants have breached this duty, there is "an ongoing breach of the regulatory provisions of the Act sufficient to afford these plaintiffs a federal forum under § 1270(f)." Section 1270(f) reads as follows:

Any person who is injured in his person or property through the violation by any operator of any rule, regulation, order, or permit issued pursuant to this chapter may bring an action for damages (including reasonable attorney and expert witness fees) only in the judicial district in which the surface coal mining operation complained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under State Workmen's Compensation laws.

Congress would have acted inequitably if it had intended for operators to have an affirmative duty under the Act to reclaim land strip mined before the effective date of the Act, for the simple reason that some of the land would not be capable of being restored according to the strict provisions of the Act. One of the purposes of the Act is to prevent land from being strip mined if it can not be reclaimed according to its specifications.

In support of the conclusion that there is no private cause of action under § 1270(f) for the failure to reclaim land strip mined before August 3, 1977, is Subchapter IV of the Strip Mining Act, encompassing the abandoned mine provisions. This subchapter, 30 U.S.C. §§ 1231-1243, was enacted to provide reclamation responsibility for lands strip mined before the enactment of the Act:

Lands and water eligible for reclamation or drainage abatement expenditures under this subchapter are those which were mined for coal or which were affected by such mining, wastebanks, coal processing, or other coal mining processes, and abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for which there is no continuing reclamation responsibility under State or other Federal laws.

30 U.S.C. § 1234.⁵ This section appears to bring the lands in question under the terms of 30 U.S.C. §§ 1231-1243.

Provision is made in 30 U.S.C. § 1231(a) for the institution of the Abandoned Mine Reclamation Fund hereinafter referred to as the "fund", which is to be administered by the Secretary of the Interior, and for the creation of state abandoned mine reclamation funds under an approved state program. Money collected for the fund, 30 U.S.C. § 1231(b), may be used for a variety of purposes, including, but not limited to, prevention of any adverse effects of coal mining practices that constitute an emergency under 30 U.S.C. § 1240:

(a) The Secretary is

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