Oklahoma v. U.S. Dep't of Interior

640 F.Supp.3d 1130

State of OKLAHOMA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

Case No. CIV-21-719-F

United States District Court, W.D. Oklahoma

Signed November 9, 2022

Bryan G. Cleveland, Jennifer L. Lewis, Mithun S. Mansinghani, Oklahoma Office of Attorney General, Oklahoma City, OK, David C. McSweeney, Pro Hac Vice, Hunton Andrews Kurth LLP, Boston, MA, Elbert Lin, Pro Hac Vice, Hunton Andrews Kurth LLP, Richmond, VA, Erica Nicole Peterson, Pro Hac Vice, Matthew Zane Leopold, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Melissa A. Romanzo, Pro Hac Vice, Robinson Bradshaw, Charlotte, NC, for Plaintiffs Oklahoma State of, Oklahoma Department of Mines, Oklahoma Conservation Commission.

Bryan G. Cleveland, Jennifer L. Lewis, Mithun S. Mansinghani, Oklahoma Office of Attorney General, Oklahoma City, OK, Ryan T. Leonard, Edinger Leonard & Blakley PLLC, Oklahoma City, OK, Trevor S. Pemberton, Hayes Magrini & Gatewood, Oklahoma City, OK, David C. McSweeney, Pro Hac Vice, Hunton Andrews Kurth LLP, Boston, MA, Elbert

Lin, Pro Hac Vice, Hunton Andrews Kurth LLP, Richmond, VA, Erica Nicole Peterson, Pro Hac Vice, Matthew Zane Leopold, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Melissa A. Romanzo, Pro Hac Vice, Robinson Bradshaw, Charlotte, NC, for Plaintiff Kevin Stitt.

Arwyn Carroll, U.S. Dept. of Justice, Washington, DC, Clare Boronow, U.S. DOJ, Environment & Natural Resources Division, Denver, CO, for Defendants.

ORDER

STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE

Before the court is Plaintiffs' Motion for Summary Judgment (doc. no. 97) filed on June 13, 2022, and Federal Defendants' Cross-Motion for Summary Judgment (doc. no. 102) filed on July 28, 2022. Both motions are fully briefed and at issue (doc. nos. 103, 104, 105).

I. INTRODUCTION

For decades, Oklahoma has regulated surface coal mining and reclamation operations within its borders, including on land that was previously understood-for more than a hundred years-to lie within the former boundaries of disestablished Indian reservations. That understanding was upended when the Supreme Court ruled that the Creek Reservation in eastern Oklahoma had never been disestablished. McGirt v. Oklahoma, — U.S. —, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020). Applying the same reasoning, the Oklahoma Court of Criminal Appeals subsequently recognized the continued existence of the Choctaw Reservation and the Cherokee Reservation. Hogner v. State, 500 P.3d 629 (Okla. Crim. App. 2021); Sizemore v. State, 485 P.3d 867 (Okla. Crim. App. 2021). The question presented in this case is whether Oklahoma may continue to regulate surface coal mining and reclamation operations within these reservations. The Office of Surface Mining Reclamation and Enforcement, a subdivision of the Department of Interior, answered that question in the negative, concluding that the Surface Mining Control and Reclamation Act prohibited Oklahoma from regulating surface mining and reclamation operations on Indian land. The consequences of this decision are significant - the land comprising the Creek, Choctaw, and Cherokee Reservations makes up a huge swath of eastern Oklahoma and includes all the surface coal mining and reclamation activities in the state.

Dissatisfied with OSMRE's decision, Oklahoma filed this action, seeking a declaratory judgment that Oklahoma has jurisdiction over surface mining activities within the Reservations and contending that OSMRE violated the Administrative Procedure Act, 5 U.S.C. § 500, et seq., in various ways. OSMRE answered and filed a counterclaim seeking a declaratory judgment that OSMRE is the sole regulatory authority on land comprising the reservations and that Oklahoma's state regulatory program is preempted by federal law as to these lands.

In an order dated December 22, 2021 (doc. no. 75), the court denied Oklahoma's motion seeking to preliminarily enjoin OSMRE from exercising regulatory authority over the lands at issue. The court concluded that Oklahoma was not likely to succeed on the merits of its claims because the Surface Mining Control and Reclamation Act precludes state regulation of surface mining and reclamation operations on Indian lands. The parties¹ have now returned to the court with cross-motions for summary judgment on all pending claims. For the reasons explained below, the court again concludes that Oklahoma is not entitled to the relief it seeks.

But one thing must be clearly understood. The result the court reaches today is compelled primarily by a straightforward application of the federal surface mining legislation to Indian lands-a situation contemplated by the express provisions of that federal law. Because the result here is compelled by the express requirements of federal legislation, this order should not be regarded as relevant to other situations in the realm of civil law, not involving the express command of federal surface mining legislation, in which other courts are required to determine the extent of the fallout of the McGirt decision.

II. BACKGROUND

A. The Surface Mining Control and Reclamation Act of 1977

Surface mining operations and reclamation activities are governed by the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201, et seq., also known as SMCRA. SMCRA "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.' " Hodel v. Virginia Surface Min. & Reclamation Ass'n, Inc., 452 U.S. 264, 268, 101 S.Ct. 2389, 69 L.Ed.2d 1 (1981) (quoting 30 U.S.C. § 1202(a)). To that end, SMCRA directs the Secretary of the Interior, acting through OSMRE, to establish minimum national performance standards for surface mining and reclamation operations. 30 U.S.C. §§ 1211, 1251(b).

However, "because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations," SMCRA also provides that the "primary governmental responsibility" for developing and enforcing regulations "should rest with the States." Id. at § 1201(f). Accordingly, Title V of SMCRA provides a specific mechanism by which a State may take responsibility for regulation of surface mining and reclamation operations. It works as so: any state wishing to regulate surface mining operations may prepare a "State program" that is submitted to OSMRE for approval. Id. at § 1235(a). The State program must demonstrate that that State has laws which provide for the regulation of surface mining and reclamation operations in accordance with SMCRA's requirements and that the State has the ability to enforce them. Id. If OSMRE approves the state program, the State then exercises "exclusive jurisdiction" over surface mining operations, although OSMRE retains enforcement oversight. Id. at §§ 1235(a); 1254(b). A state with an approved program may also seek funding for reclamation and restoration of land and water resources adversely affected by past mining operations from a fund established by Title IV of SMCRA. Id. at § 1235(c). In the absence of an approved state program, or in the event that a State is not adequately enforcing its program, OSMRE implements a Federal program of regulation for a state. Id. at § 1254(a). SMCRA thus "provides for either State regulation of surface coal mining within its borders or federal regulation, but not both. The Act expressly provides that one or the other is exclusive[.]" Bragg v. W. Virginia Coal Ass'n, 248 F.3d 275, 289 (4th Cir. 2001).

Although SMCRA permits States to assume exclusive regulatory jurisdiction over surface mining and reclamation operations, it also carefully defines the geographic scope of that jurisdiction. A "State program" means an approved program under § 1253 "to regulate surface coal mining and reclamation operations, on lands within such State." 30 U.S.C. § 1291(25). "Lands within such State" is further defined to mean "all lands within a State other than Federal lands and Indian lands." Id. at § 1291(11). Accordingly, pursuant to these definitions, a State's regulatory jurisdiction under SMCRA only extends to "non-Federal and non-Indian land within the particular state." Pennsylvania Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 315-16 (3d Cir. 2002).

Regulation of surface mining on Indian lands is addressed in § 1300 of SMCRA. This provision provides that "the Secretary shall incorporate the requirements" of SMCRA "in all existing and new leases issued for coal on Indian lands." 30 U.S.C. § 1300(d). SMCRA's implementing regulations also make clear that OSMRE "shall[ ] [b]e the regulatory authority on Indian lands." 30 C.F.R. § 750.6. "Indian lands" is defined to include "all lands, including mineral interests, within the exterior boundaries of any Federal Indian reservation, notwithstanding the issuance of any patent, and including rights-of-way, and all lands including mineral interests held in trust for or supervised by an Indian tribe." 30 U.S.C. § 1291(9).

Although SMCRA contemplates federal regulation on Indian lands, it also allows an Indian tribe to prepare its own tribal program for the regulation of surface mining and reclamation operations "on reservation land under the jurisdiction of the Indian tribe." 30 U.S.C. § 1300(d), (j). If an Indian tribe chooses to develop a regulatory program, the procedures relating to submission of a state program after implementation of a Federal program govern the process. Id. at § 1300(j)(1)(A). SMCRA further provides that, for purposes of preparing a tribal regulatory program under Title V, any reference to a State shall also be considered to be a reference to an Indian tribe. Id. at § 1300(j)(1)(B). Similarly, Title IV authorizes Indian tribes to seek funding for reclamation projects and provides that an Indian tribe shall be considered to be a State for purposes of Title IV. Id. at § 1235(k).

Finally, SMCRA expressly prohibits...