EX PARTE ALABAMA SURFACE MINING COMMISSION (In re John T. Crane et al.
Alabama Surface Mining Commission and Black Warrior Minerals, Inc.) Ex parte Black Warrior Minerals, Inc. (In re John T. Crane et al.
Alabama Surface Mining Commission and Black Warrior Minerals, Inc.)
Rehearing Denied April 12, 2019
Petition for Writ of Mandamus (Jefferson Circuit Court,
CV-17-900352), Patrick J. Ballard, J.
Milton McCarthy, deputy atty. gen., Alabama Surface Mining
Commission, Jasper, for petitioner Alabama Surface Mining
Friedman and Joseph L. Kerr, Jr., of Friedman, Dazzio,
Zulanas & Bowling, P.C., Birmingham, for petitioner Black
Warrior Minerals, Inc.
Ragsdale of Ragsdale LLC, Birmingham; and Walton D. Morris,
Jr., of Morris Law Office, PC, Charlottesville, Virginia, for
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 Commissions 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
Facts and Procedural History
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 Commissions 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 officers 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.
January 30, 2017, the property owners filed the underlying
appeal in the Jefferson Circuit Court challenging the
Commissions decision. 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.
Commission and Black Warrior filed separate petitions for a
writ of mandamus with the Court of Civil Appeals challenging
the Jefferson Circuit Courts 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 Commn, 254 So.3d 904
(Ala.Civ.App. 2017). The Commission and Black Warrior now
each separately have petitioned this Court for a writ of
Standard of Review
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).
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.
United States Supreme Courts 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
Assn, 452 U.S. 264, 268-72, 101 S.Ct. 2352, 69 L.Ed.2d
1 (1981)(footnotes omitted).
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 Congresss legislative intent. Under the
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. 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. §
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. Alabamas 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.
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.
SeeAlabama 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 OSMs
conditional approval of Alabamas 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 ...