ELR Citation: ELR 20338
No(s). 91-0123-W(S) (N.D. W. Va. Aug 30, 1991)

The court holds that West Virginia mining associations have standing under the Declaratory Judgment Act, the Administrative Procedure Act (APA) and §520 of the Surface Mining Control and Reclamation Act (SMCRA) to seek to enjoin federal enforcement in West Virginia's surface mining regulatory program before the defendant federal agencies have complied with SMCRA regulations. West Virginia's Division of Energy (WVDOE) received approval under SMCRA to become the regulatory authority for the state in 1981. In 1991, the federal Office of Surface Mining Reclamation and Enforcement (OSM) and WVDOE entered into a Memorandum of Understanding under which WVDOE waived the right to notification under SMCRA §521(a)(1) of any violation found by OSM, any right to respond to OSM under SMCRA §521(a) and 30 C.F.R. pts. 842 and 843, and any right to request informal review under 30 C.F.R. §842.11(b)(1)(iii). Subsequently, plaintiffs sent defendants a Notice of Intent to sue under SMCRA §520(a).

The court first holds that it has jurisdiction to hear plaintiffs' suit under the Declaratory Judgment Act, because there is a clear nexus between plaintiffs' status as interested parties and the claims sought to be adjudicated. The court holds that it has jurisdiction to hear plaintiffs' suit under APA §702, because the Memorandum of Understanding is designed to implement, interpret, or prescribe law or policy, and is effectively a rulemaking by OSM subject to review. The court also holds that it has jurisdiction to hear plaintiffs' suit under SMCRA §520, SMCRA's citizen suit provision, because plaintiffs' members have incurred expenses that they might not otherwise have faced because of the operation of the Memorandum of Understanding, and thus have been directly affected. Relying on Congress' intent that affected groups would have the opportunity to sue under SMCRA, and the unambiguous language in the Secretary of the Interior's own regulations, the court finds that the permittees are the intended beneficiaries of the 10-day notice provision and that denial of that benefit is grounds for standing under the citizen suit provision. The court next holds that the determination of whether a preliminary injunction should issue is controlled by Blackwelder Furniture v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1979), which requires a balancing of the likelihood of irreparable harm to the plaintiff without an injunction against the likelihood of harm to the defendant with an injunction, and a showing of likelihood of success.

The court holds that there is a substantial likelihood that the plaintiffs will succeed on the merits of their complaint. The plaintiffs have suffered irreparable injuries because they are deprived of the opportunity to conform their activities to the requirements of the West Virginia program. They will continue to suffer irreparable harm unless the defendants are enjoined from taking direct federal enforcement action against coal mining operations in West Virginia without first complying with the regulations. The court notes that no damages to the defendants will result from requiring them to comply with their own regulations.

Counsel for Plaintiffs
Dean K. Hunt
Stevens & Hunt
101 E. Vine St., 5th Fl., Lexington KY 40507
(606) 253-2072

Counsel for Defendants
Wayne A. Babcock
U.S. Department of the Interior
10 Parkway Ctr., Rm. 385, Pittsburgh PA 15220
(412) 937-4000