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M.L. Johnson Family Props., LLC v. Jewell

United States District Court, E.D. Kentucky, Southern Division

June 13, 2014

SALLY JEWELL, Secretary of the Interior, Defendant, and PREMIER ELKHORN COAL COMPANY, Intervening Defendant

For M.L. Johnson Family Properties, LLC, Plaintiff: Joe F. Childers, LEAD ATTORNEY, Joe F. Childers & Associates, Lexington, KY; Mary Varson Cromer, Stephen A. Sanders, LEAD ATTORNEYS, Appalachian Citizens' Law Center - Whitesburg, Whitesburg, KY.

For Sally Jewell, in her Official Capacity as Secretary of the Interior, Defendant: J. Nicklas Holt, LEAD ATTORNEY, U.S. Department of the Interior, Knoxville, TN; Thomas Lee Gentry, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY.

For Premier Elkhorn Coal Company, Intervenor Defendant: Charles J. Baird, LEAD ATTORNEY, Baird & Baird, PSC, Pikeville, KY.

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Amul R. Thapar, United States District Judge.

Property rights matter. So too do the efforts of coal companies: They offer employment to millions and provide affordable energy to consumers. Sometimes, a company's interest in conducting mining operations will leave it at odds with the owner of the surface estate. In such situations, should the law prefer the surface owner or the coal company? The Constitution wisely leaves such questions of policy to the States and the elected branches, not the Courts. And here, the States and the political branches have spoken with one voice: Coal companies must comply with certain minimum permitting requirements before they may mine a surface owner's estate. Because the coal company in this case failed to comply with those minimum requirements, it must immediately cease mining the plaintiff's land.


M.L. Johnson Family Properties, LLC, is a collection of landowners (organized as a limited liability company) who want Premier Elkhorn Coal Company to cease surface mining operations on their property. To that end, they filed this suit against the Secretary of the Interior, seeking an injunction ordering her to halt Elkhorn's mining activities. Although Elkhorn obtained a permit from the relevant Kentucky agency, the plaintiff claims that the permit fails to comply with the minimum federal requirements governing surface mining. The source of those requirements is the Surface Mining Control and Reclamation Act of 1977 (the Act), 30 U.S.C. § 1201 et seq.

The Act establishes a system of " cooperative federalism" : It prescribes certain minimum national requirements applicable to surface mining, but it allows States to assume responsibility for enforcing them. Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The Act invites States to apply to regulate surface mining within their borders. 30 U.S.C. § 1253(a). To accept the invitation, a State must submit to the Secretary a proposed regulatory program, demonstrating that the State is ready, willing, and able to enforce the Act's requirements. Id. A proposed State regulatory regime may be more demanding

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than the Act, but its requirements must be at least as stringent as the Act's--that is, the Act sets a national floor governing surface mining, but no ceiling. See id. Once the Secretary approves a State's proposed regulatory regime, then the State " assume[s] exclusive jurisdiction over the regulation of surface coal mining" on non-federal land. Id. The phrase " exclusive jurisdiction" means precisely what it suggests: After the Secretary signs off on a State's program, federal law no longer directly governs surface mining in the State. Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 295 (4th Cir. 2001) (" When a State's program has been approved by the Secretary of the Interior, we can look only to State law on matters involving the enforcement of the minimum national standards." ); accord Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 316 (3d Cir. 2002). The Secretary approved Kentucky's proposed regulatory program in 1982. 30 C.F.R. § 917.10.

That is not to say, however, that federal law is irrelevant to the conduct of surface mining in Kentucky. The Act's grant of exclusive jurisdiction carries with it a notable caveat. Federal law charges the Secretary with ensuring that a State's administration of its approved program comports with the Act's minimum requirements. 30 U.S.C. § 1253(a) (providing for exclusive State jurisdiction " except as provided" in the Act's enforcement provision). If a State fails to comply with the Act's requirements, then the Act may require the Secretary to intervene. See 30 U.S.C. § 1271(a); Hess, 297 F.3d at 328 (" The Secretary may step in to withdraw approval of the state's ineffective program or a part thereof and to enforce, in federal court, federal provisions and sanctions for violations of the minimum standards set forth in [the Act]." ).

Whether to enforce the Act is not left entirely to the Secretary's discretion. Crucially, the Act contains a " citizen suit" provision--a device by which citizens may force the Secretary to spring into action. 30 U.S.C. § 1270(a)(2). Section 1270 allows a private party to " compel compliance" with the Act by suing the Secretary to perform " any act or duty under this chapter which is not discretionary." Id. Section 1270 is a rather extraordinary remedy: Not every day can an aggrieved citizen command the Secretary of the Interior to do his bidding. Perhaps for that reason, § 1270 usually requires the party seeking to enlist the Secretary to provide her with 60 days to fix the problem before he may initiate a suit. 30 U.S.C. § 1270(b)(2). The 60-day waiting period does not apply, however, when time is of the essence: If the alleged violation either (1) poses " an imminent threat" to the plaintiff's health or safety, or (2) " would immediately affect a legal interest of the plaintiff," then the party may notify the Secretary of the problem and sue immediately. Id.

M.L. Johnson brought this suit pursuant to § 1270, alleging that Elkhorn's permit application did not contain certain information that the Act requires. See generally 30 U.S.C. § 1260(b) (enumerating information that a State must require from an applicant before it may approve a permit). Section 1271 requires the Secretary to intervene whenever she has reason to believe that a person is violating " any permit condition" the Act prescribes. 30 U.S.C. § 1271(a)(1). Because the obligation to intervene is couched in mandatory terms, the plaintiff may seek to compel the Secretary to do so via a suit under § 1270. And M.L. Johnson wants that relief right away: It seeks a preliminary injunction compelling the Secretary to inspect Elkhorn's permit. The Secretary responded that the 60-day period had not expired, and that

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Elkhorn's permit application contained the necessary information.

To be eligible for a preliminary injunction, the plaintiff must first demonstrate " a strong likelihood of success on the merits," City of Pontiac Retired Emps. Ass'n v. Schimmel, No. 12-2087, 751 F.3d 427, 2014 WL 1758913, at *2 (6th Cir. May 5, 2014) (en banc). For the reasons explained below, the plaintiff has carried that burden. M.L. Johnson was not required to wait 60 days before filing this action, and Elkhorn's permit application did not comply with the Act's minimum requirements. The Court will therefore grant the motion for a preliminary injunction, order the Secretary to conduct an inspection, and halt Elkhorn's mining operation on the plaintiff's land during the pendency of that inspection.

I. Section 1270's Sixty-Day Waiting Period Does Not Apply, Because the Violation Will " immediately affect a legal interest of the plaintiff."

It is undisputed that the plaintiff commenced this suit less than 60 days after giving the Secretary notice of the violation. The plaintiff thus had no right to invoke ยง 1270 unless an exception applied: The violation must have imminently endangered the plaintiff's health or safety, or it must have threatened to " ...

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