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SAVE OUR CUMBERLAND MOUNTAINS, INC. v. WATT

September 30, 1982

SAVE OUR CUMBERLAND MOUNTAINS, INC., et al., Plaintiffs,
v.
James G. WATT, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge.

 In this action, two Appalachian-based nonprofit environmentalist organizations, Save Our Cumberland Mountains, Inc. and the Council of Southern Mountains, Inc., seek declaratory and injunctive relief against the Secretary of the Interior (Secretary) and the Director of the Office of Surface Mining Reclamation and Enforcement (OSM). The plaintiffs claim that Department of Interior officials have failed to assess and collect mandatory civil penalties and take appropriate enforcement actions against surface coal mine operators who have been found in violation of the Surface Mining Control and Reclamation Act of 1977 (Act), 30 U.S.C. §§ 1201 et seq.

 Defendants have moved to dismiss on grounds that venue is improper in this judicial district. They assert that this action cannot be brought in this district because the mining operations violative of the Act for which penalties have not been collected are not located in the District of Columbia. Defendants also assert that the complaint fails to state a claim for which relief may be granted because imposition of the penalties sought by the plaintiffs is an action within the government's discretion. The parties have briefed and orally argued the motion to dismiss with respect to the venue provision and have also briefed the issue whether the assessment of penalties is mandatory or discretionary.

 For the reasons set forth below the Court concludes that the plaintiffs have established venue and jurisdiction in this Court and that defendants have a mandatory duty to impose the penalties prescribed by the Act.

 I.

 The Surface Mining Control and Reclamation Act is a comprehensive statute designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202. Section 520 of the Act, 30 U.S.C. § 1270, provides for two types of private actions: subsection (a)(1) authorizes citizen suits against anyone "alleged to be in violation of the provisions of this chapter or of any rule, regulation, order or permit issued pursuant thereto . . ."; subsection (a)(2) authorizes suits against a regulatory authority, including the Secretary for failure "to perform any act or duty under this chapter which is not discretionary . . . ."

 In addition, section 520(c)(1) provides that the appropriate venue for actions "respecting a violation of this chapter or the regulations thereunder may be brought only in the judicial district in which the surface coal mining operation complained of is located." Defendants argue that venue is improper in this district since the violative surface mining operations are located not within the District of Columbia but, rather, within the Appalachian region.

 Although defendants suggest otherwise, section 520(c) is a venue, not a jurisdictional, provision. As such, it relates solely to the convenience of the litigants. Denver & Rio Grande Western Railroad Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 560, 87 S. Ct. 1746, 1748-1749, 18 L. Ed. 2d 954 (1967); Olberding v. Illinois Central Railroad Co., 346 U.S. 338, 340, 74 S. Ct. 83, 85, 98 L. Ed. 39 (1953). Moreover, it is generally appropriate to interpret a venue statute so as to allow the plaintiffs to choose their forum. See Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947).

 With these guidelines in mind, the government's argument must fail. The plaintiffs challenge the Secretary's decision not to assess penalties under section 518(h) of the Act. The Secretary's decision is allegedly nationwide in scope, affecting 700 or more violations. Clearly, it would not be more convenient to any party if plaintiffs were required to refile this suit in Virginia, Kentucky or elsewhere, when the challenged action took place here in Washington, D.C. and affects surface coal mines throughout the United States.

 Rejection of the impractical result sought by the government need not rest on a contorted reading of section 520(c). That venue provision refers to actions involving only individual coal mines. It provides that: "Any action respecting a violation of this Act or the regulations thereunder may be brought only in the judicial district in which the surface coal mining operation complained of is located " (emphasis added). In this case, plaintiffs challenge a purported national policy under the Act, not 700 individual decisions involving particular coal mining operations. *fn1"

 Professor Moore has cautioned that "venue limitations should not be made a fetish." 1 J. Moore, Moore's Federal Practice P 0.140[1.-1] (2s ed. 1976). The defendants' interpretation of the venue provision makes no sense in this case and is not required under a straightforward reading of section 520(c). Thus, this Court must turn to the general venue statute, 28 U.S.C. § 1391(b), which provides venue within this district as the place where the claim arose.

 II.

 The substantive issue in this case is whether section 518 of the Act imposes a mandatory or discretionary duty on the Secretary to assess penalties for a cessation order issued under section 521(a)(3). If section 518 imposes a discretionary duty, then dismissal of this action is appropriate since section 520(a)(2), the jurisdictional provision relied upon by the plaintiffs, confers jurisdiction solely over suits to compel the Secretary to perform a mandatory ...


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