The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on the plaintiffs' motion and amended motion for leave to file amended and supplemental complaint [Docs. 134, 136]. The plaintiffs seek leave, pursuant to Fed. R. Civ. P. 15, to file an amended complaint to address "transactions, events or occurrences which have occurred since the Complaint in this action was filed April 22, 2005." [Doc. 134-2.] Plaintiffs contend that defendants can show no prejudice resulting from the proposed amended complaint and that defendants have been on notice of these potential new claims for some time. Both the federal defendants (Dirk Kempthorne, Assistant Secretary of the United States Department of the Interior, Brent Wahlquist, Director of the U.S. Office of Surface Mining Reclamation and Enforcement ("OSM"), and Tim Dieringer, Director of the Knoxville Field Office of OSM) and defendant National Coal Corporation ("NCC") have vigorously opposed the plaintiffs' motion and the issues have been thoroughly briefed [Docs. 134, 136, 141, 142, 144, 145, 149].
As the parties are aware, leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). See Foman v. Davis, 371 U.S. 178, 182 (1962). However, leave to amend should be denied when the amendment would be futile because it would not withstand a motion to dismiss. See Wade v. Knoxville Utilities Bd., 259 F.3d 452, 459 (6th Cir. 2001); Stohler v. Menke, 998 F. Supp. 836, 838 (E.D. Tenn. 1997). The original complaint was filed April 22, 2005, asserting seventeen counts against the federal defendants [Doc. 1].*fn1 All but one count asserted claims under the National Environmental Policy Act (NEPA); the remaining count, Count I, asserted a claim under the Surface Mining Control and Reclamation Act (SMCRA) and was dismissed pursuant to the defendants' motion for partial dismissal [Doc. 117].
As best as can be determined by the Court, the plaintiffs' proposed amended complaint contains revisions to Counts XI and XII, and newly added Counts XVII through XXII. Revised Counts XI and XII and new Counts XVII, XVIII, and XIX are asserted against the federal defendants. New Counts XX, XXI, and XXII are asserted against NCC.*fn2 The Court will attempt to first address the new and the revised claims asserted against the federal defendants and then address the new claims asserted against NCC.
A. Claims Against Federal Defendants
1. Proposed Counts XVII, XVIII, and XIX As outlined in the defendants' response [Doc. 141], the proposed amended complaint seeks to amend the allegations in Counts XI and XII and to add three counts under SMCRA, Counts XVII, XVIII, and XIX. The defendants first argue that plaintiffs' motion to add Counts XVII, XVIII, and XIX should be denied because the plaintiffs failed to exhaust their administrative remedies as to these claims and therefore the Court lacks jurisdiction to consider them. Defendants argue that any claims under 30 U.S.C. §§ 1271(a)(2) and 1271(a)(3), such as Counts XVII and XVIII, must first be appealed to the Secretary for review as a jurisdictional prerequisite before judicial review under section 1276. Defendants assert that plaintiffs' claims in Counts XVII and XVIII are challenges to OSM's notices of violation (NOVs) or cessation orders (COs) or the modifications of NOVs by extension of abatement deadlines. Because the plaintiffs failed to seek administrative review of the NOVs, COs, or the modifications to NOVs under 43 C.F.R. § 4.1160, the plaintiffs' request for judicial review is barred.
Defendants further argue that plaintiffs cannot pursue Count XIX because SMCRA provides no basis for subject matter jurisdiction for a claim that the agency failed to act under section 1271(a)(4). 30 U.S.C. § 1276. Defendants contend that the Administrative Procedures Act (APA) does not provide jurisdiction for review of the alleged failure to take enforcement steps under the provisions for finding a pattern and practice of violations.
Finally, defendants argue that citizen suits under SMCRA are limited to actions to compel compliance by the Secretary to perform a non-discretionary act or duty. Since OSM has issued NOVs and COs, there is no failure by the Secretary to perform any mandatory duty and the Court lacks jurisdiction.
The plaintiffs respond that neither SMCRA nor its regulations require them to exhaust administrative remedies. Plaintiffs suggest that section 1275 of SMCRA and 43 C.F.R. § 4.1161 allow for permissive administrative review and do not constitute a jurisdictional bar. Plaintiffs also argue that OSM's failure to provide copies of NOVs or COs or notice of extended abatement dates to parties other than alleged violators and governmental entities prohibits OSM from relying on the exhaustion doctrine.
Plaintiffs contend that their proposed SMCRA counts are authorized pursuant to the APA and the citizen suit provisions of SMCRA, 30 U.S.C. § 1270(a)(2), rather than section 1276(a)(2) of SMCRA. Because the Sixth Circuit presumes that agency actions within the meaning of the APA are judicially reviewable, OSM cannot rebut this presumption because SMCRA and its implementing regulations provide strict enforcement guidelines that place a duty on the Secretary to act whenever he identifies a pattern of violations. Plaintiffs argue that section 1270(a)(2) provides an independent basis for jurisdiction over proposed Counts XVII and XVIII because those counts involve mandatory duties unlawfully withheld.
As set forth in their surreply, the federal defendants argue that all courts which have considered the issue have unanimously determined that claims brought under SMCRA sections 1271(a)(2) or (a)(3) must be administratively exhausted under 30 U.S.C. § 1275 before this Court has jurisdiction. With respect to plaintiffs' argument that they did not receive copies of the NOVs, the defendants point out that the regulations specifically provide that persons not served with the documents shall file an application for review within 40 days of the date of the issuance of the document. 43 C.F.R. § 4.1162(a). Defendants also argue that the administrative review provided under section 1275 of SMCRA constitutes a "proceeding required to be conducted pursuant to section 554 of Title 5 [of the APA]." 30 U.S.C. § 1276(a)(2). Defendants argue that the presumption against judicial review of an agency's refusal to take enforcement steps has ...