Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
DEPARTMENT OF THE INTERIOR
Nos. 75-1931, 75-1932 1978.CDC.24
Appeals from the United States District Court for the District of Columbia (D.C. Civil 74-1058).
Opinion for the court filed by MacKINNON, Circuit Judge.
Concurring opinion filed by LEVENTHAL, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
The events underlying this appeal begin with a decision in an earlier unconnected case involving essentially the same facts concerning the Affinity Mining Co. in West Virginia. In that case an order issued on December 21, 1970, to evacuate a slope being driven at the Keystone No. 5 coal mine operated by Affinity. A federal coal mine inspector had documented conditions at that slope constituting an imminent danger, *fn1 and issued the withdrawal order pursuant to section 104 of the Federal Coal Mine Health and Safety Act of 1969. *fn2 On February 4, 1972, the Bureau of Mines petitioned the Interior Board of Mine Operations Appeals to assess civil penalties upon Affinity Mining Company because of the conditions existing at the time of the withdrawal order. *fn3 The dangerous conditions were limited to the operations involved in driving the new slope, however, those excavating works were entirely under the control of Cowin Construction Company, an independent subcontractor under contract to drive the tunnel but not to mine coal. The issue in this appeal is to determine the proper party to assess under the Federal Coal Mine Health and Safety Act when construction operations present safety hazards.
The Affinity Mining case was decided in March of 1973. The Administrative Law Judge ruled that the construction company was the more "offending party," and that the proposed fine should be levied only upon it. *fn4 The Interior Board of Mine Operations Appeals affirmed, ruling that a proper interpretation of the Federal Coal Mine Health and Safety Act Required that Only the construction company be liable for safety or health violations connected with coal mine construction. *fn5 There was no further review of that decision. *fn6
In July of 1974, the Association of Bituminous Contractors, Inc., a trade association of contractors who carry on coal mine construction work, brought suit in the U.S. District Court for the District of Columbia. The Association sought a declaratory judgment that an independent contractor engaged by a coal mining company for construction work (not actual mining) did not fall within the category of an "operator" *fn7 of a "coal mine" so that no stricture of the Federal Coal Mine Health and Safety Act, and particularly no liability for civil penalties under 30 U.S.C. § 819(a), could be imposed against independent companies performing such construction work.
(h) "coal mine" means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities.
30 U.S.C. § 802(h) (1970). Therefore, any person who "controls or supervises . . . a (slope) . . . to be used in . . . extracting in such area bituminous coal (etc.)" is, by definition, an "operator."
An injunction was also requested against the Secretary of the Interior "restraining (him) . . . from enforcing and applying the Act and the standards and regulations promulgated thereunder against companies engaged in the construction of coal mines. . . ." (J.A. 11). The District Court granted the relief requested in an oral opinion announced May 22, 1975 (J.A. 63), and the Secretary of the Interior has taken this appeal. *fn8 We reverse. I. JURISDICTION OF THE DISTRICT COURT
In its suit for declaratory and injunctive relief, the Association is suing essentially to overturn the Board's decision in Affinity Mining. *fn9 The Secretary contends that the District Court had no jurisdiction to hear such a claim, since 30 U.S.C. § 816(a) specifically provides for judicial review by the U.S. Court of Appeals. The rule he would apply here is "that where Congress has provided a special and adequate procedure for judicial review . . . that procedure is to be considered exclusive except in special circumstances not present here." Standard Forge and Axle Co., Inc. v. Coleman, 179 U.S.App.D.C. 309, 310, 551 F.2d 1268, 1269 (1977). See also Whitney National Bank v. Bank of New Orleans, 379 U.S. 411, 419, 85 S. Ct. 551, 13 L. Ed. 2d 386 (1965); Investment Co. Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App.D.C. 311, 551 F.2d 1270 (1977).
Closer comparison of the facts in this case and the standard asserted, however, reveals that the standard is inapposite. The "special and adequate procedure for judicial review" relied on here explicitly Excludes review of the type of order involved in Affinity Mining :
Any order or decision issued by the Secretary or the Panel under this chapter, Except an order or decision under section 819(a) of this title, shall be subject to judicial review . . . .
30 U.S.C. § 816(a) (1970) (emphasis added). Section 819(a) provides:
(1) The operator of a coal mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this chapter . . . shall be ...