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Ex parte Alabama Surface Mining Commission

Supreme Court of Alabama

January 11, 2019

Ex parte Alabama Surface Mining Commission
v.
Alabama Surface Mining Commission and Black Warrior Minerals, Inc. In re: John T. Crane et al. Ex parte Black Warrior Minerals, Inc. In re: John T. Crane et al.
v.
Alabama Surface Mining Commission and Black Warrior Minerals, Inc.

          PETITION FOR WRIT OF MANDAMUS JEFFERSON CIRCUIT COURT, CV-17-900352

          SELLERS, Justice.

         The Alabama Surface Mining Commission ("the Commission") and Black Warrior Minerals, Inc. ("Black Warrior"), separately petition this Court for a writ of mandamus directing the Jefferson Circuit Court to dismiss the underlying action seeking judicial review of the Commission's issuance of a surface-coal-mining permit to Black Warrior ("the permit") or, in the alternative, to transfer the action to the Walker Circuit Court. The underlying action was filed by the respondents, John T. Crane, Dan Jett, and Linda Jett ("the property owners"), who own property near the location that is the subject of the permit. We grant the petitions and issue the writs.

         Facts and Procedural History

         On March 31, 2016, the Commission issued the permit to Black Warrior, authorizing the surface mining of certain land in northern Jefferson County. The property owners appealed the issuance of the permit to the Commission's Division of Hearings and Appeals, and a hearing officer affirmed the issuance. The property owners then filed with the Commission a petition for review of the hearing officer's decision, pursuant to § 9-16-79(1)d., Ala. Code 1975. The Commission took no action on the property owners' petition within 30 days of its filing; thus, the petition was deemed denied pursuant to § 9-16-79(3)a., Ala. Code 1975.

         On January 30, 2017, the property owners filed the underlying appeal in the Jefferson Circuit Court challenging the Commission's decision.[1] In response, the Commission and Black Warrior each filed a motion to dismiss or, alternatively, to transfer the appeal to the Walker Circuit Court. After hearing arguments and requesting briefs on the motions, the Jefferson Circuit Court denied the motions filed by the Commission and Black Warrior.

         The Commission and Black Warrior filed separate petitions for a writ of mandamus with the Court of Civil Appeals challenging the Jefferson Circuit Court's denial of their respective motions for a change of venue. The Court of Civil Appeals denied those petitions, and the Commission and Black Warrior did not file applications for rehearing. See Ex parte Alabama Surface Mining Comm'n, 254 So.3d 904 (Ala. Civ. App. 2018). The Commission and Black Warrior now each separately have petitioned this Court for a writ of mandamus.

         Standard of Review

         This Court will issue a writ of mandamus when the petitioner shows a clear legal right to the relief sought; an imperative duty upon the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and the properly invoked jurisdiction of the court. Ex parte Hampton Ins. Agency, 85 So.3d 347, 350 (Ala. 2011).

         Discussion

         These petitions require this Court to determine the proper venue for an appeal of an adverse decision of the Commission. Specifically, we are asked in this case to decide whether the Jefferson Circuit Court is a proper venue for the property owners' appeal or whether the appeal should be transferred to the Walker Circuit Court pursuant to § 9-16-79(4)b., Ala. Code 1975. In making that determination, we must examine the interaction between the Federal Surface Mining Control and Reclamation Act of 1977 ("the Federal Surface Mining Act"), 30 U.S.C. § 1201 et seq., and the Alabama Surface Mining Control and Reclamation Act of 1981 ("the Alabama Surface Mining Act"), § 9-16-70 et seq., Ala. Code 1975.

         The United States Supreme Court's discussion of the Federal Surface Mining Act is instructive:

"The [Federal] Surface Mining Act 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, 30 U.S.C. § 1251 (1976 ed., Supp. III), establishes a two-stage program for the regulation of surface coal mining: an initial, or interim regulatory phase, and a subsequent, permanent phase. ... Under the permanent phase, a regulatory program is to be adopted for each State, mandating compliance with the full panoply of federal performance standards, with enforcement responsibility lying with either the State or Federal Government.
"....
"...[A]ny 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, 452 U.S. 264, 268-72 (1981)(footnotes omitted).

         The Federal Surface Mining Act adopts a scheme that has been described as "cooperative federalism," whereby the federal government adopts a general regulatory regimen and invites the states to enact legislation complying with the major components of the federal regulatory goals, but reserves to the states the enforcement and overall implementation of Congress's legislative intent. Under the Federal Surface Mining Act, states are allowed to enact a state regulatory program ("state program") controlling surface-mining operations and submit that state program to the Office of Surface Mining Reclamation and Enforcement ("the OSM") for approval by the Secretary of the Interior.[2] 30 U.S.C. § 1253. A state program does not become effective until it is approved by the Secretary of the Interior. Id. Further, any subsequent "changes to laws or regulations that make up the approved State program" are not effective until they are approved by the Director of the OSM. 30 C.F.R. § 732.17(g).

         In accordance with the framework provided by the Federal Surface Mining Act, Alabama created its own state program by enacting the Alabama Surface Mining Act in May 1981. Act No. 81-435, Ala. Acts 1981. Alabama's state program was conditionally approved by the OSM, with an effective date of May 20, 1982. 30 C.F.R. 901.10. Among other things, the Alabama Surface Mining Act created a process for obtaining permits to engage in certain surface-mining operations and a process for challenging the approval or disapproval of those surface-mining permits, with a petition for review first being heard by a hearing officer and then by the Commission itself. See generally Act No. 81-435, §§ 8-20, Ala. Acts 1981 (subsequently codified at Ala. Code 1975, §§ 9-16-77 to 9-16-88). Finally, the Alabama Surface Mining Act allowed any aggrieved party to "secure a judicial review of an adverse decision by filing a notice of appeal in circuit court." Ala. Code 1975, § 9-16-79(4)b.

         Notably, the Alabama Surface Mining Act, as originally enacted, did not include a provision specifying the proper venue for such an appeal. Caselaw at the time the Alabama Surface Mining Act was enacted generally indicated that the proper venue for actions against a State agency was the county where the agency maintained its principal place of business. See Alabama Youth Servs. Bd. v. Ellis, 350 So.2d 405, 407 (Ala. 1977); Alabama Alcoholic Beverage Control Bd. v. Owen, 54 Ala.App. 419, 420, 309 So.2d 459, 460 (1975). However, later in 1981, after the enactment of the Alabama Surface Mining Act, the legislature enacted the Alabama Administrative Procedure Act ("the AAPA"), Ala. Code 1975, § 41-22-1 et seq., which, except for certain provisions not of consequence here, became effective October 1, 1982, a few months after the OSM's conditional approval of Alabama's state program. See Ala. Code 1975, § 41-22-27. Included in the AAPA are provisions detailing "the procedure for soliciting judicial review of final decisions of administrative agencies within the State." Ex parte Worley, 46 So.3d 916, 919 (Ala. 2009)(citing Ala. Code 1975, § 41-22-20). The AAPA, at Ala. Code 1975, § 41-22-20(b), generally provides that venue for such judicial proceedings is proper "either in the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters, or unless otherwise specifically provided by statute, in the circuit court of the county where a party ... resides." Thus, where applicable, the AAPA modified the general rule that the proper venue for actions against a State agency was in the county where the agency maintained its principal place of business.

         In 1983, the legislature amended the Alabama Surface Mining Act, including § 9-16-79, Ala. Code 1975, to state that the procedures in the Alabama Surface Mining Act for hearings and appeals before the Commission "shall take precedence over the Alabama Administrative Procedure Act." See Act No. 1983-774, Ala. Acts 1983. In Ex parte Water Works Board of Birmingham, 177 So.3d 1167 (Ala. 2014), this Court discussed whether the 1983 amendment precluded the application of § 41-22-20(b) of the AAPA when determining the proper venue for an appeal brought pursuant to the Alabama Surface Mining Act. That case involved an appeal filed in the Jefferson Circuit Court by the Birmingham Water Works Board challenging the issuance of a permit by the Commission. The Commission filed a motion for a change of venue, arguing that venue was proper only in the Walker Circuit Court. The trial court ordered that the appeal be transferred, citing the general rule that proper venue for an action against a State agency was the county of the agency's principal place of business and noting that the Commission was required by law to maintain its principal office in Walker County.[3] 177 So.3d at 1169. The Water Works Board petitioned for a writ of mandamus, and this Court granted the petition, holding that the Jefferson Circuit Court was a proper venue for that appeal. 177 So.3d at 1173. In reaching that conclusion, this Court noted that the Alabama Surface Mining Act contained no provision "dictating to which circuit court a party may appeal; in other words, § 9-16-79 lacks a venue provision." 177 So.3d at 1171. Further, this Court noted that, although the language of § 9-16-79(a)(1) states that "[t]hese procedures shall take precedence over the [AAPA]," it does not "state that the AAPA may not be considered in any circumstance." 177 So.3d at 1173. Therefore, this Court held that, in light of the lack of a venue provision in the Alabama Surface Mining Act, the AAPA should be consulted to determine if venue in the Jefferson Circuit Court was proper and further held that, under § 41-22-20(b), venue was proper in Jefferson County, where the Water Works Board had its principal office. Id.

         Following this Court's decision in Ex parte Water Works Board, the legislature amended § 9-16-79 of the Alabama Surface Mining Act. See Act No. 2015-383, Ala. Acts 2015. The first unnumbered paragraph was amended to provide: "These procedures shall take precedence over the [AAPA], which shall in no respect apply to proceedings arising under this article." Ala. Code 1975, § 9-16-79 (changed language emphasized). Additionally, § 9-16-79(4)b. was amended to specify that the proper venue for a judicial review of a final decision of the Commission is "in the circuit court of the county in which the commission maintains its principal office." By its own terms, the act amending § 9-16-79(4)b. (hereinafter referred to as "the 2015 amendment") became effective in June 2016, before the property owners filed the underlying appeal. Act No. 2015-383, § 3, Ala. Acts 2015.

         Under the plain language of § 9-16-79(4)b., as it now reads, the only proper venue for the property owners' action is the circuit court of Walker County, where the Commission maintains its principal office. The property owners, however, contend that, at the time they commenced their appeal in the Jefferson Circuit Court, the 2015 amendment was not effective and the earlier version of § 9-16-79(4)b. applies.

         As noted above, the Federal Surface Mining Act requires that state programs be approved by the Secretary of the Interior. 30 U.S.C. § 1253. Moreover, it requires that the rules and regulations of a state program be consistent with regulations issued by the Secretary pursuant to the Federal Surface Mining Act. 30 U.S.C. § 1253(a)(7). One such regulation, 30 C.F.R. § 732.17, provides a process through which changes or amendments to an already approved state program may be proposed and approved. 30 C.F.R. § 732.17(g) 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 [of the OSM] as an amendment. No such change to laws or regulations shall take effect for purposes of a State program until approved as an amendment."

(Emphasis added.) In reliance on that provision, the property owners argue that the 2015 amendment to the Alabama Surface Mining Act was an amendment to Alabama's approved state program that required approval by the OSM before becoming effective.

         Before the 2015 amendment was enacted, it was informally submitted to the OSM to evaluate its consistency "with respect to the Federal requirements," and the OSM "found nothing of concern." After the 2015 amendment was enacted and signed by the Governor, it was again submitted to the OSM with the subject line: "Formal Submission of Amendment to the ...


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