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Coal River Mountain Watch v. United States Department of the Interior

United States District Court, D. Columbia

November 25, 2015


          For Coal River Mountain Watch, Plaintiff: Daniel H. Lutz, LEAD ATTORNEY, Thomas M. Gremillion, INSTITUTE FOR PUBLIC REPRESENTATION, Washington, DC USA.

         For United States Department of Interior, Office of Surface Mining Reclamation And Enforcement, Sally Jewell, Joseph Pizarchik, Defendants: Clare Marie Boronow, LEAD ATTORNEY, Justin A. Torres, U.S. DEPARTMENT OF JUSTICE, Environment And Natural Resources Division, Washington, DC USA.


         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 (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 permits should automatically result when permits are not commenced within three years, then OSM may permissibly interpret the statute (and [its] regulations implementing the statute) as either effecting an automatic termination or not doing so, so long as the interpretation it adopts is reasonable" ( id. at 11 (referencing Chevron U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))). OSM paired that observation with case law involving " automatic forfeitures," which the agency interpreted to hold that, " if forfeiture is not mandated by 'clear and unequivocal' language in SMCRA [and its regulations], then we should not construe our statute and regulations as imposing this harsh penalty." ( Id. ) Tying the two together, OSM pointed to cases that stand for the more general proposition that Congress's " use of the word 'shall'" --such as in the three-year permit termination provision at issue--" does not necessarily give rise to a mandatory, nondiscretionary duty" ( id. at 12 (citations omitted)); the agency found such cases to be particularly pertinent here because interpreting " shall" as mandatory would treat the statute as effecting an automatic forfeiture of the mining permit without the clear language to that effect that is ordinarily found in automatic-forfeiture federal statutes ( id.; see also id. (noting that " [t]ypically, Congress . . . uses language that leaves no doubt about its intent to effect an automatic forfeiture" (citations omitted)); id. at 11 (finding it " highly significant . . . that neither SMCRA, the Federal regulations, nor the West Virginia Code expressly state whether the termination occurs automatically by operation of law at the end of [the three-year] time frame or whether administrative action is required to terminate the permit" )). Thus, OSM concluded, not only was WVDEP's pre-termination notice policy " permissible and reasonable," it was also " the preferable interpretation" of the SMCRA's termination provision ( id. at 12 (emphasis in original)), and as a result, WVDEP had not acted arbitrarily or capriciously or in violation of the law when it determined that the Marfork permit had not automatically terminated ( id. at 13).

         B. Procedural History

         After it reviewed the Decision Letter from OSM headquarters, Coal River filed suit in this Court against the Department of the Interior, OSM, and the Secretary of the Interior and Director of OSM in their official capacities, alleging that (1) the Decision Letter itself was a rulemaking that triggered the APA's notice-and-comment procedures; and (2) the Decision Letter's substantive conclusion-- i.e., that WVDEP's pre-termination notice policy and declination to deem the Marfork permit terminated was permissible because the SMCRA is better interpreted as not requiring the automatic termination of permits--contravened the SMCRA and thus violated the APA. ( See Coal River's First Compl., ECF No. 1, ¶ ¶ 53-59.) Coal River filed the instant action in the U.S. District Court for the District of Columbia on October 21, 2013, and on that same day, Coal River also filed a lawsuit in the U.S. District Court for the Southern District of West Virginia--as relevant here, the West Virginia federal action raised claims against Defendants that are identical to those that were brought in the instant case. ( See Coal River's West Virginia Complaint, Ex. B to Defs.' Mot. (" West Virginia Complaint" ), ECF No. 19-2, ¶ ¶ 55-58, 63-65.)

         The procedural maneuvering intensified the following spring. First, on April 15, 2014, Defendants filed in this Court a motion to dismiss the complaint or, in the alternative, stay the case, on equitable grounds; this motion asked this Court to " dismiss the instant case without prejudice in favor of the pending West Virginia case" in order to " avoid duplicative litigation and conserve judicial resources[.]" (Defs.' First Mot. to Dismiss, ECF No. 11, at 7.) Then, on April 17, 2014, the litigants in the West Virginia case (Defendants and Coal River) jointly requested a stay of the West Virginia action pending resolution of the motion to dismiss that Defendants had filed in the instant matter. ( See Defs.' First Reply, ECF No. 13, at 6; SDWV Order Granting Joint Motion to Stay Case, Ex. A to Defs.' First Reply (" West Virginia Stay Order" ), ECF 13-1, at 1) The judge in the West Virginia case stayed that action as requested on April 21, 2014 ( see West Virginia Stay Order at 1, 5), and three days later, on April 24, 2014, Coal River filed a motion in that court requesting voluntary dismissal of that case without prejudice. ( See Pl.'s First Opp'n, ECF No. 12, at 7; Pl.'s Mem. in Support of Mot. to Dismiss West Virginia Case Without Prejudice, Ex. B to Defs.' First Reply, ECF No. 13-2, at 2.) Shortly thereafter, in the instant case, Coal River filed an opposition to Defendants' motion to dismiss the case ( see Pl.'s First Opp'n, ECF No. 12), and Defendants responded by filing a reply that, among other things, suggested that Coal River's West Virginia voluntary dismissal motion had been improperly " filed in violation of [the] stay" in the West Virginia proceeding ( see Defs.' First Reply at 6).

         On December 1, 2014, before this Court took any action on Defendants' motion to dismiss, Coal River requested leave to amend its original complaint, which this Court granted. ( See Minute Order of December 2, 2014.) Accordingly, the Court denied the Defendants' motion to dismiss, without prejudice and with leave to refile after Coal River had filed the amended complaint. ( See id. ) Thereafter, Coal River filed an amended complaint that reiterated its APA claims ( see Compl. ¶ ¶ 55-61), and Defendants renewed their motion to dismiss " [t]o avoid duplicative litigation" in light of the stayed West Virginia matter (Defs.' Mot. at 8). It is this (second) motion to dismiss ...

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