Crane v. Ala. Surface Mining Comm'n (Ex parte Ala. Surface Mining Comm'n)

254 So.3d 904

EX PARTE ALABAMA SURFACE MINING COMMISSION

(In re: John T. Crane, Dan Jett, and Linda Jett

v.Alabama Surface Mining Commission and Black Warrior Minerals, Inc.)

Ex parte Black Warrior Minerals, Inc.

(In re: John T. Crane, Dan Jett, and Linda Jett

v.Alabama Surface Mining Commission and Black Warrior Minerals, Inc.)

2160876

2160887

Court of Civil Appeals of Alabama.

December 1, 2017

G. Milton McCarthy, deputy atty. gen., Jasper, for petitioner Alabama Surface Mining Commission.

Jeff Friedman and Joseph L. Kerr, Jr., of Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, for petitioner Black Warrior Minerals, Inc.

Clay Ragsdale of Ragsdale LLC, Birmingham; and Walton D. Morris, Jr., of Morris Law Office, PC, Charlottesville, Virginia, for respondents.

Edward R. Jackson and James Brakefield of Jackson, Fikes & Brakefield, Jasper, for amicus curiae Alabama Coal Association, in support of the petitioners.

MOORE, Judge.

In case no. 2160876, the Alabama Surface Mining Commission ("the Commission") petitions this court for a writ of mandamus directing the Jefferson Circuit Court to dismiss the appeal filed by John T. Crane, Dan Jett, and Linda Jett ("the property owners") challenging the Commission's issuance of a surface-coal-mining permit to Black Warrior Minerals, Inc. ("Black Warrior"); alternatively, the Commission requests that this court direct the Jefferson Circuit Court to transfer the appeal to the Walker Circuit Court. In case no. 2160887, Black Warrior requests the same relief. We deny both petitions.

Procedural History

On March 31, 2016, the Commission issued Black Warrior a surface-coal-mining permit, permit no. P–3987 ("the permit"). The property owners appealed the issuance of the permit to the Commission's Division of Hearings and Appeals; the issuance of the permit was affirmed on November 8, 2016. On December 2, 2016, the property owners filed, pursuant to § 9–16–79(1)d., Ala. Code 1975, a part of "The Alabama Surface Mining Control and Reclamation Act of 1981" ("the Alabama Act"), § 9–16–70 et seq., Ala. Code 1975, a petition for review of the hearing officer's decision. The Commission took no action on the petition within 30 days of its filing, and, thus, the petition was deemed denied. See § 9–16–79(3)a., Ala. Code 1975.

On January 30, 2017, the property owners appealed to the Jefferson Circuit Court. On March 2, 2017, the Commission and Black Warrior filed motions to dismiss or, alternatively, to transfer the appeal to the Walker Circuit Court. All the parties briefed the issue whether the Walker Circuit Court or the Jefferson Circuit Court is the proper court to hear the appeal. On June 28, 2017, the Jefferson Circuit Court denied the motions filed by the Commission and Black Warrior. On August 9, 2017, the Commission and Black Warrior filed their respective petitions with this court.

Standard of Review

" ‘ "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995)." ’" Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998) )."

Ex parte Tier 1 Trucking, LLC, 222 So.3d 1107, 1110 (Ala. 2016).

Discussion

"The Surface Mining [Control and Reclamation] Act [of 1977] is a comprehensive statute designed to ‘establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.’ § 102(a), 30 U.S.C. § 1202(a) (1976 ed., Supp. III). Title II of the Act, 30 U.S.C. § 1211 (1976 ed., Supp. III), creates the Office of Surface Mining Reclamation and Enforcement (OSM), within the Department of the Interior, and the Secretary of the Interior (Secretary) acting through OSM, is charged with primary responsibility for administering and implementing the Act by promulgating regulations and enforcing its provisions. § 201(c), 30 U.S.C. § 1211(c) (1976 ed., Supp. III)....

"....

"Section 501(b), 30 U.S.C. § 1251(b) (1976 ed., Supp. III), directs the Secretary to promulgate regulations establishing a permanent regulatory program incorporating all the Act's performance standards. The Secretary published the permanent regulations on March 13, 1979, see 44 Fed. Reg. 14902, but these regulations do not become effective in a particular State until either a permanent state program, submitted and approved in accordance with § 503 of the Act, or a permanent federal program for the State, adopted in accordance with § 504, is implemented.

"Under § 503, any State wishing to assume permanent regulatory authority over the surface coal mining operations on ‘non-Federal lands’ within its borders must submit a proposed permanent program to the Secretary for his approval. The proposed program must demonstrate that the state legislature has enacted laws implementing the environmental protection standards established by the Act and accompanying regulations, and that the State has the administrative and technical ability to enforce these standards. 30 U.S.C. § 1253 (1976 ed., Supp. III). The Secretary must approve or disapprove each such proposed program in accordance with time schedules and procedures established by §§ 503(b)(c), 30 U.S.C. §§ 1253(b), (c) (1976 ed., Supp. III)."

Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 268–72, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (footnotes omitted).

The State of Alabama enacted the Alabama Act in order "to implement and enforce [the federal Surface Mining Control and Reclamation Act of 1977], and the permanent regulations promulgated thereunder, as required for the state to retain exclusive jurisdiction over the regulation of surface coal mining and reclamation operations." § 9–16–71(b), Ala. Code 1975.

In 2015, § 9–16–79(4)b., a part of the Alabama Act, was amended by Act No. 2015–383, Ala. Acts 2015, to provide for judicial review of a final decision of the Commission "in the circuit court of the county in which the commission maintains its principal office." Because the Commission maintains its principal office in Walker County, according to § 9–16–79(4)b. the appeal would lie in the Walker Circuit Court, not the Jefferson Circuit Court. Before the 2015 amendment to § 9–16–79(4)b., judicial review was proper in the Jefferson Circuit Court pursuant to § 41–22–20(b), Ala. Code 1975.

Ex parte Water Works Bd. of Birmingham, 177 So.3d 1167, 1173 (Ala. 2014).

Section 732.17(g), 30 C.F.R., provides:

"Whenever changes to laws or regulations that make up the approved State program are proposed by the State, the State shall immediately submit the proposed changes to the Director as an amendment. No such change to laws or regulations shall take effect for purposes of a State program until approved as an amendment."

"Director" is defined in 30 C.F.R. § 700.5 as "the Director, Office of Surface Mining Reclamation and Enforcement, or the Director's representative."

At the time the property owners' appeal to the Jefferson Circuit Court was commenced on January 30, 2017, the 2015 amendment to § 9–16–79(4)b. had been submitted for approval by the Director, but it had not yet been approved. Therefore, the property owners argue that § 9–16–79(4)b., as amended, was not yet in effect and, therefore, that the Jefferson Circuit Court was the proper court in which to file their appeal.

In their petitions for a writ of mandamus, the Commission and Black Warrior argue that matters of judicial review are not part of the "approved State program" and, therefore, that no approval of the amendment to § 9–16–79(4)b. was required.¹

Section 1291(25), 30 U.S.C., defines "State program" as "a program established by a State pursuant to section 1253 of this title to regulate surface coal mining and reclamation operations, on lands within such State in accord with the requirements of this chapter and regulations issued by the Secretary [of the Interior] pursuant to this chapter."

Section 732.15, 30 C.F.R., provides:

"The Secretary [of the Interior] shall not approve a State program unless, on the basis of information contained in the program submission, comments, testimony and written presentations at the public hearings, and other relevant information, the Secretary finds that—

"....

"(b) The State regulatory authority has the authority under State laws and regulations pertaining to coal exploration and surface coal mining and reclamation operations and the State program includes provisions to—

"....

"(15) Provide for judicial review of State program actions in accordance with State law, as provided in section 526(e) of the [Surface Mining Control and Reclamation Act of 1977], except that judicial review of State enforcement actions shall be in accordance with section 526 of the Act. Judicial review in accordance with State law shall not be construed to limit the operation of the rights established in section 520 of the Act, except as provided in that section."

As noted previously, 30 C.F.R. § 732.17(g) provides that no change to the State program may take effect until that change is approved by the Director. Because the regulations specify that the...