ELR Citation: ELR 21179
No(s). 83-1224 (D.C. Cir. May 22, 1992)

The court rules that the special citizen suit forum rule in Surface Mining Control and Reclamation Act (SMCRA) §520(c)(1), which requires that suit must be brought only in the district in which the mining operation complained of is located, controls all citizen suits under SMCRA §520(a), including suits against the Secretary of the Interior as regulator, and is not waivable. The court first holds that SMCRA §520(c)(1)'s reference to the district in which the mining operation complained of is located requires that a charge that the Secretary is failing to enforce SMCRA must be substantive, resting on proof that mine operators, at specific locations, are evading the terms of the Act, and are thus adversely affecting the interests of complaining persons. Although Congress, by repeatedly allocating funds for the Secretary's compliance with court-ordered settlement agreements, has effectively matched SMCRA §520(c)(1) with §520(a)(1) citizen suits against mine operators and authorized recourse for §520(a)(2) citizen suits against the Secretary for failure to perform nondiscretionary duties, the court declines to interpret the funding as an implied repeal of the legislative prescription. The court further holds that reading §520(c)(1) to preclude §520(a) citizen suits except in the district in which the complaint arises does not make §520(a)(2) superfluous, because Congress intended to distinguish "(a)(1)" actions against mine operators from "(a)(2)" suits against regulators. In setting SMCRA's forum prescriptions for rulemaking review, Congress showed its preference for local judicial review where the action potentially involves site-specific or local conditions. Moreover, the SMCRA §526(a)(1) scheme for review of rulemakings, like the SMCRA §520(c)(1) citizen suit forum prescription, does not provide a choice. Outside the national rulemaking context, federal courts customarily deal in situation-specific litigation and do not engage long-term in grand-scale supervision of an executive agency's administration of federal programs. Benefits from a local forum requirement include providing operators with easier access to participation and distributing more evenly the judicial workload. Moreover, cases against regulators for failure to perform as mandated, whether under SMCRA or other federal statutes providing for citizen suits, reveal that the complaints commonly focus on the Secretary's conduct with regard to a particular facility or particular state program. Finally, the court holds that the SMCRA §520(c)(1) citizen suit forum rule is not waivable by the parties' conduct or consent.

[Previous decisions in this litigation are published at 13 ELR 20284 and 20531, 14 ELR 20205, 17 ELR 20594, and 21 ELR 20121.]

Counsel for Plaintiffs-Appellees
L. Thomas Galloway
Galloway & Greenberg
1835 K St. NW, Ste. 803, Washington DC 20006
(202) 833-9084

Counsel for Intervenors-Appellants
Thomas C. Means
National Coal Association
1130 17th St. NW, Washington DC 20036
(202) 463-2625

Before RUTH B. GINSBURG, BUCKLEY, and D.H. GINSBURG, Circuit Judges.