M.L. Johnson Family Properties, LLC, Plaintiff-Appellant,
David L. Bernhardt, Secretary of the Interior, Defendant-Appellee, Premier Elkhorn Coal LLC, Intervenor-Appellee.
Argued: March 19, 2019
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.
Varson Cromer, APPALACHIAN CITIZENS' LAW CENTER,
Whitesburg, Kentucky, for Appellant.
Corinne Snow, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Federal Appellee.
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
Grant, J. David Gunter II, Dustin J. Maghamfar, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Federal
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
J. Short, J. Michael West, KENTUCKY ENERGY AND ENVIRONMENT
CABINET, Frankfort, Kentucky, for Amicus Curiae.
Before: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.
McKEAGUE, Circuit Judge.
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.
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
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.
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).
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).
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). For ease of reference, we refer
to these three statutory provisions as subsections (A), (B),
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.
Factual and ...