United States District Court, District of Columbia
For COAL RIVER ENERGY, LLC, Plaintiff: John Y. Merrell, Jr., PRO HAC VICE, MERRELL & MERRELL PC, McLean, VA; Steven Harlan Becker, BECKER LAW FIRM PLLC, New York, NY.
For KENNETH LEE SALAZAR, Secretary, UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants: Tara Kathleen Hogan, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
This matter is before the Court upon consideration of Defendant's motion for judgment on the pleadings. In its motion, Defendant argues that the Court lacks jurisdiction under 30 U.S.C. § 1276(a)(1) to review Plaintiff Coal River's claims. The Court agrees that Plaintiff's claims must meet the requirements of § 1276(a)(1) and fail to do so. Accordingly, the Court GRANTS Defendant's motion for judgment on the pleadings.
Congress passed the Surface Mining Control and Reclamation Act of 1977 (" SMCRA" ), codified at 20 U.S.C. § § 1232 et seq., to, among other things, " establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations," and " assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations." See 20 U.S.C. § 1232(a), (e). To that end, Congress imposed a fee on coal " operators," 30 U.S.C. § 1232(a), that would facilitate the " reclamation and restoration of land and water resources adversely affected by past coal mining," id. § 1231(c)(1). This fee, which would go into an Abandoned Mine Land (" AML" ) fund, was calculated based
upon the weight of " coal produced."  Id. § 1232(a).
The SMCRA does not, however, define the term " coal produced." This omission was of concern since the weight of coal fluctuates according to whether the coal is weighed at the time of extraction (at which time the coal's weight would include dirt, rocks, and other non-coal materials) or weighed at the time that the coal was ready for sale, transfer or use (after which the non-coal materials would presumably have been removed). Def.'s Mot. at 3; Pl.'s Opp'n at 11.
To resolve this issue, the Secretary of Interior, acting through the United States Department of Interior's Office of Surface Mining (" OSM" ), promulgated 30 C.F.R. § 870.12 in December 1977. This regulation provided, in relevant part, that the coal operator would pay the AML fee on " each ton of coal produced for sale, transfer, or use," as determined " by the weight and value [of the coal] at the time of initial bona fide sale, transfer of ownership, or use by the operator." 30 C.F.R. § 870.12(a)-(b). OSM rejected a proposal that would have based the AML fee on the weight and value of the coal at the time it was extracted from the ground. 42 Fed. Reg. 44,956 (Sept. 7, 1977). In the early 1980s, OSM added language to 30 C.F.R. § 870.12 clarifying that the AML fee is to be determined by the weight and value of the coal at the time of the " first transaction or use of the coal by the operator immediately after it is severed, or removed from a reclaimed coal refuse deposit." 30 C.F.R. § 870.12(b)(1).
Plaintiff Coal River Energy LLC is a West Virginia corporation formed in 2003 that produces and sells coal. Pl.'s Compl. ¶ 1. Since the second quarter of 2008, Plaintiff has sold coal for export and believes it will continue to do so in the future. Id. ¶ 4. Whenever Plaintiff has sold ...