ELR Citation: ELR 20359
No(s). 91-0007-B (W.D. Va. Sep 30, 1993)

The court holds that the citizen suit provisions of the Surface Mining Control and Reclamation Act (SMCRA) create a federal right-of-action in states with approved regulatory programs for landowners whose property was damaged by a coal company operating under a strip mining permit obtained in violation of state permit regulations; that the remedy will flow from the federal right-of-action; and that state law should be used to determine the measure of damages unless it conflicts with the purposes or policies of SMCRA. The court first holds that a person whose property is damaged by strip mining that occurred under a fraudulently obtained, and later revoked, state permit has a federal right-of-action under SMCRA's citizen suit provision when the rule that was violated, the failure to list all record owners on right-of-entry documents, was issued pursuant to an approved state program. The court then holds that because Congress provided an express federal right-of-action for violations of SMCRA, federal courts have the power to provide appropriate relief. The court also holds that the law of the state whose approved regulatory program has been violated should be applied to determine damages, unless it would conflict with the purposes or policies of SMCRA, because the cause of action stems from violation of state regulations.

Counsel for Plaintiff
Daniel R. Bieger
Copeland, Molinary & Bieger
P.O. Box 1296, Abingdon VA 24210
(703) 628-9525

Counsel for Defendant
Timothy W. Gresham, Stephen M. Hodges
Penn & Stuart
P.O. Box 2288, Abingdon VA 24210
(703) 628-5151