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M.L. Johnson Family Properties, LLC v. Bernhardt

United States Court of Appeals, Sixth Circuit

May 15, 2019

M.L. Johnson Family Properties, LLC, Plaintiff-Appellant,
v.
David L. Bernhardt, Secretary of the Interior, Defendant-Appellee, Premier Elkhorn Coal LLC, Intervenor-Appellee.

          Argued: March 19, 2019

          Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:16-cv-00006-Karen K. Caldwell, Chief District Judge.

         ARGUED:

          Mary Varson Cromer, APPALACHIAN CITIZENS' LAW CENTER, Whitesburg, Kentucky, for Appellant.

          Corinne Snow, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellee.

         ON BRIEF:

          Mary Varson Cromer, APPALACHIAN CITIZENS' LAW CENTER, Whitesburg, Kentucky, Joe F. Childers, JOE F. CHILDERS & ASSOCIATES, Lexington, Kentucky, Walton D. Morris, Jr., MORRIS LAW OFFICE, P.C., Charlottesville, Virginia, for Appellant.

          Eric Grant, J. David Gunter II, Dustin J. Maghamfar, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellee.

          John C. Martin, HOLLAND & HART LLP, Washington, D.C., Thomas C. Means, CROWELL & MORING LLP, Washington, D.C., Charles J. Baird, BAIRD & BAIRD, PSC, Pikeville, Kentucky, for Intervenor Appellee.

          Samuel J. Short, J. Michael West, KENTUCKY ENERGY AND ENVIRONMENT CABINET, Frankfort, Kentucky, for Amicus Curiae.

          Before: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.

          OPINION

          McKEAGUE, Circuit Judge.

         How to use a large plot of land known as "Tract 46" in Pike County, Kentucky has been a point of contention between the plot's joint owners for quite some time. The plot's surface and mineral estates have been severed for a century. Today, the Pike Letcher Land Company and Johnson LLC each own the surface estate as tenants in common. Pike Letcher also owns the entirety of the coal below. It wants to mine for the coal. But Pike Letcher and Johnson don't see eye to eye on how Pike Letcher may use the surface estate to pursue its planned mining activities.

         Pike Letcher wants to use the surface to extract the coal using surface mining methods. To that end, in 2013, Pike Letcher granted Premier Elkhorn Coal LLC, its affiliate, a right to enter the land and commence surface mining. But Johnson objects to surface mining. Nonetheless, despite Johnson's protestations, the State of Kentucky granted Elkhorn a surface mining permit, and Elkhorn commenced operations in April 2014.

         Johnson has been challenging the validity of Elkhorn's permit ever since-and with some success. In 2014, as the result of a lawsuit in federal court, the Secretary of the Interior determined that Elkhorn's permit violated federal law. Elkhorn then remedied the deficiencies in its first permit, and Kentucky issued it an amended permit later the same year. On review, the Secretary confirmed that, this time, Elkhorn's permit complied with federal law. Johnson sued again. An Administrative Law Judge ("ALJ") upheld the Secretary's determination. The United States District Court for the Eastern District of Kentucky affirmed. Johnson now appeals. For the following reasons, we affirm.

         I.

         A. Legal Background

         Coal companies that hope to obtain a permit to surface mine must comply with certain requirements set out by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). SMCRA was designed to "strike a balance between the nation's interests in protecting the environment from the adverse effects of surface coal mining and in assuring the coal supply essential to the nation's energy requirements." Bragg v. W.Va. Coal Ass'n, 248 F.3d 275, 288 (4th Cir. 2001) (citations omitted). It accomplishes these twin aims through a system that has been described as "cooperative federalism." Id.; Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs., 746 F.3d 698, 701-02 (6th Cir. 2014) (citation omitted). Under its cooperative framework, SMCRA sets national minimum requirements for surface mining but invites states to assume responsibility for enforcing them. Kentuckians for the Commonwealth, 746 F.3d at 701-02. States that wish to assume that responsibility must obtain approval from the Secretary by creating their own regulatory program that is "capab[le] of carrying out" SMCRA's provisions. 30 U.S.C. § 1253(a). Those states may even add to SMCRA's minimum permitting standards, but they must not go below them. See id. Once the Secretary approves a state's program, the state assumes "exclusive jurisdiction" over surface mining activities on non-federal lands within its borders. Id.; In re Permanent Surface Mining Regulation Litig., 653 F.2d 514, 519 (D.C. Cir. 1981) (en banc).

         The Secretary approved Kentucky's regulatory program in 1982, and the Kentucky Energy and Environment Cabinet has administered the State's program ever since. 30 C.F.R. § 917.10; see Ky. Rev. Stat. Ch. 350; 405 Ky. Admin. Regs. Ch. 1-30. But that did not end the Secretary's involvement with surface mining regulation within Kentucky's borders. SMCRA vests the Secretary with an ongoing obligation to ensure that state programs comport with the federal Act's minimum requirements. 30 U.S.C. § 1253(a). In accordance with that oversight authority, whenever the Secretary has reason to believe that a person is in violation of a SMCRA permit condition, and the state authority fails to take action to remedy the suspected violation, the Secretary must inspect the surface mining operation. 30 U.S.C. § 1271(a). If the Secretary's inspection confirms that a violation is occurring that creates an imminent harm to the health or safety of the public or the environment, it must issue a cessation order commanding the immediate termination of all surface mining activities. Id. § 1271(a)(2); 30 C.F.R. § 843.11(a)(1). Mining without a valid permit is a per se imminent harm that automatically triggers the issuance of a cessation order. 30 C.F.R. § 843.11(a)(2).

         Whether Elkhorn has a valid SMCRA-compliant permit is the question at the heart of this case. The answer turns on whether Elkhorn has met SMCRA's minimum requirements for establishing a right to surface mine on Tract 46, a severed estate. For its permit to be valid, Elkhorn must have submitted documents to the Kentucky Cabinet that satisfied one of three avenues for establishing a right to surface mine. 30 U.S.C. § 1260(b)(6); 30 C.F.R. § 778.15(b)(3). Those options are:

(A) the written consent of the surface owner to the extraction of coal by surface mining methods; or
(B) a conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or
(C) if the conveyance does not expressly grant the right to extract coal by surface mining methods, the surface-subsurface legal relationship shall be determined in accordance with State law . . . .

30 U.S.C. § 1260(b)(6).[1] For ease of reference, we refer to these three statutory provisions as subsections (A), (B), and (C).

         Because Elkhorn's current amended permit was issued pursuant to subsection (C), this case turns on the requirements of that subsection. However, prior litigation concerning Elkhorn's permit hinged on the meaning of subsection (A). Because that litigation has some relevance to this one, we discuss it briefly below.

         B. Factual and ...


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