PETITION FOR WRIT OF MANDAMUS JEFFERSON CIRCUIT COURT,
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
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 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
January 30, 2017, the property owners filed the underlying
appeal in the Jefferson Circuit Court challenging the
Commission's 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 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.
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. Code 1975.
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
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. 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. 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.
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.
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. 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.
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.
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.
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. §
"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
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 ...