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Ex parte Alabama Surface Mining Commission

Supreme Court of Alabama

January 11, 2019

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

Page 1206

          Petition for Writ of Mandamus (Jefferson Circuit Court, CV-17-900352), Patrick J. Ballard, J.

         G. Milton McCarthy, deputy atty. gen., Alabama Surface Mining Commission, Jasper, for petitioner Alabama Surface Mining Commission.

         Jeff Friedman and Joseph L. Kerr, Jr., of Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, for petitioner Black Warrior Minerals, Inc.

         Clay Ragsdale of Ragsdale LLC, Birmingham; and Walton D. Morris, Jr., of Morris Law Office, PC, Charlottesville, Virginia, for respondents.


         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. 2017). 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

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of another adequate remedy; and the properly invoked jurisdiction of the court. Ex parte Hampton Ins. Agency, 85 So.3d 347, 350 (Ala. 2011).


         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, 101 S.Ct. 2352, 69 L.Ed.2d 1 (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

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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. 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 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 ...

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