State sovereignty over the regulation of coal mining is again under attack by anti-industry groups. In Montana Environmental Information Centeret al. v. Stone-Manning, et al., Appeal No. 13-35107 (Ninth Circuit Court of Appeals), the Sierra Club and other appellants (“Sierra Club”) are attempting to convince a federal appeals court to disregard the plain meaning of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), by recognizing federal court jurisdiction to hear their complaints about the manner in which the Montana Department of Environmental Quality (“MDEQ”) administers its state program. In doing so, the Sierra Club also seeks to persuade the appeals court to disregard the State of Montana’s sovereign immunity from suit in federal court as afforded by the Eleventh Amendment to the United States Constitution.

In 2001, the Fourth Circuit Court of Appeals issued the seminal decision of Bragg v. West Virginia Coal Association, which addressed the same types of claims asserted by the Sierra Club in the pending Stone-Manning appeal. Specifically, in Bragg the Fourth Circuit held that when a State receives approval from the Secretary of Interior under SMCRA to administer a regulatory program governing coal mining (known as “primacy”), the state obtains exclusive jurisdiction. Therefore any challenge to a state’s administration of such a program may only be asserted in state court, under state law. There is no exception to Eleventh Amendment immunity, because a state program is not deemed to be “federalized” merely because it was approved under SMCRA. The Third Circuit Court of Appeals addressed much the same issue the following year in Pennsylvania Federation of Sportsmen’s Clubs v. Hess, and agreed with Bragg.

More than ten years later, the Sierra Club commenced a federal lawsuit to challenge certain aspects of the coal mining regulatory program administered by the MDEQ, which was granted primacy by OSM in 1982. Montana is not within the group of states under the jurisdiction of the Third or Fourth Circuit Courts of Appeals, and therefore neither the Bragg nor the Hess opinion is legally binding on the federal courts in Montana. Nevertheless, the federal district court in Montana appropriately adopted the sound reasoning set forth in both of those earlier decisions and entered an Order dismissing the Sierra Club’s claims. In pursuing its appeal from that Order, the Sierra Club has asked the Ninth Circuit Court of Appeals to reject Bragg and Hess, seeking to create a split of authority among the federal appeals courts concerning whether primacy states truly have “exclusive” jurisdiction over their mining programs, as Congress expressly stated when it passed SMCRA over 35 years ago.

In September 2013, Dinsmore attorneys Christopher “Kip” Power and Robert Stonestreet submitted an Amicus Curiae or (“friend of the court”) brief to the Ninth Circuit on behalf of the Interstate Mining Compact Commission (“IMCC”) in support of the district court’s decision. The IMCC is a multi-state commission representing the natural resource and environmental protection interests of its member states, each of which has primacy under SMCRA. The IMCC’s 21 member states accounted for more than 90% of total national coal production in 2012. IMCC supports the district court’s decision in Stone-Manning because that decision promotes consistency and predictability concerning the exclusive jurisdiction of primacy states to regulate coal mining within their borders. That decision also respects the sovereignty of the primacy states by requiring legal challenges to their mining programs to be brought in state courts under state law, and encourages affected parties to use available state administrative channels and appeals to pursue challenges to such purely state agency actions.

The Ninth Circuit is expected to render a decision in the case sometime in early 2014. The IMCC’s Amicus Curiae brief, and the district court’s decision which it supports, may be found at the links provided above.