ELR Citation: ELR 20562
No(s). 90-5189 (6th Cir. Feb 12, 1991)

The court holds that the dredging of the Cumberland River in Kentucky for the purpose of producing coal is "surface coal mining" subject to reclamation fees under the Surface Mining Control and Reclamation Act (SMCRA). After plaintiff received notice from the Kentucky field office of the Office of Surface Mining Reclamation and Enforcement (OSMRE) that it owed reclamation fees for its river operation, plaintiff appealed to the U.S. Department of the Interior Board of Land Appeals (IBLA). The IBLA affirmed the decision of the OSMRE, and when the federal district court granted the Secretary of the Interior's motion for summary judgment at trial, plaintiff appealed. The court first notes that the distinction between a dredging operation that does not penetrate the riverbed, which plaintiff claims its operation entails, and an operation that does penetrate the riverbed, is without significance in determining whether SMCRA reclamation fees attach. The absence of the word "dredging" from the list of excavation methods listed in SMCRA §701(28)(A) does not operate to place dredging activities outside the scope of SMCRA. Redressing the deleterious environmental effects of plaintiff's long-term dredging of the riverbed, which is the purpose at the heart of SMCRA, would be thwarted if the proposition that underwater dredging for coal is not covered by SMCRA were accepted. The court next finds that the IBLA's determination that plaintiff's operations were not subject to SMCRA's two-acre or incidental mining exemptions was based on substantial evidence. Finally, the court holds that because IBLA's denial of plaintiff's request for a hearing was discretionary, plaintiff was not denied due process when the IBLA denied a hearing. The IBLA denied the hearing because it found that plaintiff's evidence failed to create an issue of material fact.

A dissenting judge would hold that SMCRA is unambiguous as to the term "surface," and that reclamation fees are only applicable to land operations, not dredging operations over water. Moreover, the IBLA's denial of a hearing on the issue of whether plaintiff's operation penetrated the earth denied plaintiff the opportunity to prove that its manner of coal production was subject to exemption from SMCRA.

Counsel for Appellant
W. P. Hauser
P.O. Box 533, Barbourville KY 40906
(606) 546-3811

Counsel for Appellee
Bruce T. Hill
Office of the Field Solicitor
Department of the Interior, P.O. Box 15006, Knoxville TN 37901
(615) 673-4234

Before: JONES, Circuit Judge; ENGEL and WELLFORD^*, Senior Circuit Judges.