Citizens Opposing Pollution v. Secretary of the U.S. Department of the Interior

Filing 25

ORDER granting 5 Motion to Dismiss for Failure to State a Claim, granting 14 Motion to Intervene and denying as moot 20 Motion to Strike. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 7/30/15. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CITIZENS OPPOSING POLLUTION,
Petitioner,
v.

No. 14-1107-DRH

SALLY JEWELL, SECRETARY
OF THE UNITED STATES DEPARTMENT
OF THE INTERIOR,
Respondent.

MEMORANDUM and ORDER

HERNDON, District Judge:
Pending before the Court are intervenor ExxonMobil Coal USA, Inc.’s motion
to intervene (Doc. 14) and respondent Sally Jewell’s motion to dismiss (Doc. 5).
Based on the following, the Court grants both motions.
On October 15, 2014, Citizens Opposing Pollution (“COP”) filed a writ of
mandamus pursuant to 28 U.S.C. § 1361 (Doc. 2).

Petitioner seeks to compel

three actions by writ of mandamus regarding the Illinois approved state mining
program (“Illinois Mining Act”) and its federal counterpart, the Surface Mining
Control and Reclamation Act of 1977 (“SMCRA”). The petition asks the “Court to
issue a Writ of Mandamus for inadequate control of coal mining operations and
reclamation to Respondent Department of Interior Secretary Sally Jewell
requiring the Secretary to revoke approval of Illinois’ Coal Mining program and to
follow procedure set forth in the Surface Mining Control and Reclamation Act, 30
Page 1 of 18

U.S.C. § 1271(b) …” (Doc. 2. p. 1, emphasis in original). In the petition, COP is
asking the Court to:
(1) require the Secretary to revoke approval of Illinois’ Coal Mining
program for inadequate control of mining operations and
reclamation;
(2) require the Secretary to perform her ministerial, non-discretionary
duty under 30 U.S.C. § 1271(b) of the SMCRA to give notice to the
public and the State and to hold hearings within thirty days of such
notice in the State, to determine whether current permit holders of
coal mining operations and refuse disposal areas in Illinois are in
compliance and whether the Illinois provisions of law are being
enforced as required under the SMCRA; and
(3) require
the
Secretary
to
perform
her
ministerial,
non-discriminatory duty under 30 U.S.C. § 1271(b) of the SMRCA
to give notice to the public and that State and to hold a hearing
within thirty days of such notice in the State, to determine whether
ExxonMobil Coal USA obtained a proper permit for reclamation of
the Monterey Coal Mine No. 2 Refuse Disposal Ares and to
determine whether the current Reclamation Plan satisfies the
requirements to return the land to its former use as prime
farmland or to a higher better use, to return the land to its natural
contours, to remove all permanent impoundments with waste
properly disposed of, and to determine whether the groundwater
was restored for use as drinking water to the community.
(Doc. 2, p. 23-24).
A recitation of the facts surrounding this lengthy litigation is provided herein
as set forth by the Illinois Supreme Court in Citizens Opposing Pollution v.

ExxonMobil Coal USA, 962 N.E.2d 956 (Ill. 2012).
Background
In 1977, Monterey began surface and underground coal mining
operations at its Mine No. 2 in Clinton County. The Mining Act, which
is administered by IDNR, requires that no person shall conduct
mining operations without first obtaining a permit from IDNR. 225
ILCS 720/2.01 (West 2008). Each permit application, and application
for revision of a permit, must also contain a reclamation plan or
revised reclamation plan that meets the requirements set forth by
Page 2 of 18

IDNR. 225 ILCS 720/2.03 (West 2008). Monterey operated at the site,
relevant to this appeal, two separately permitted coal refuse disposal
areas (RDAs). In 1984, the Illinois Department of Mines and Minerals
approved Permit No. 57, which authorized the creation of RDA–1.2 In
1986, the Department approved Permit No. 183, which authorized the
creation of RDA–2. The two conjoined RDAs encompass a surface
area of approximately 350 acres and contain rock, gravel, sand and
other materials that are separated from the coal during coal
processing. In 1996, active, ongoing mining operations ended at Mine
No. 2. Monterey then began working to permanently close the mine
and conduct reclamation work at the site, which included sealing the
mine shafts and removing coal mining facilities and equipment.
On December 21, 1999, IEPA, which implements the water
quality provisions of the Environmental Protection Act (415 ILCS 5/1et
seq. (West 2008)), issued a violation notice to Monterey. The notice
alleged that Monterey's coal mining waste disposal areas violated
groundwater quality standards for total iron, manganese, sulfate,
chloride, and total dissolved soils. Without admitting to the alleged
violation, Monterey worked with IEPA, and a corrective action plan
which included a groundwater management zone to treat impacted
groundwater under and around the two refuse disposal areas was
developed and approved by IEPA on June 24, 2002. The plan
required, inter alia, the installation of an underground bentonite
barrier wall and the construction of a treatment system which routes
impacted groundwater from extraction wells through a treatment area
before discharging it off site. Monterey was also required to monitor
groundwater quality and provide annual reporting to IEPA.
On March 3, 2004, after a public hearing and comment period,
IDNR approved revisions to Permit No. 57 and Permit No. 183, which
incorporated the corrective action plan with the groundwater
management zone, that allowed Monterey to implement and complete
reclamation work at Mine No. 2.3 The terms of the permit revisions
provided, in pertinent part: (1) the two RDAs would remain onsite and
the interior which contained exposed coal refuse on the surface would
be reclaimed with a soil cover and vegetation; (2) a detailed description
of the postreclamation land use designations, which specified that the
RDAs and the land immediately adjacent to them would constitute
“pastureland” as defined in the administrative regulations (see 62 Ill.
Adm.Code 1701 app. A (2012)) after completion of the required
reclamation work; (3) the final contour of the land would approximate
the premining site topography with the exception, in pertinent part, of
the two RDAs; and (4) the operation of the groundwater management
zone was designed to prevent or mitigate any material damage to the
Page 3 of 18

hydrologic balance outside the proposed permit area and minimize the
disturbance within the boundaries. Monterey represents that the
reclamation project was substantially completed in December 2006,
and that it expended more than $28 million to complete the RDA
portion of the project alone, which included the construction of the
groundwater management zone.
State and Federal Administrative Appeals
On March 29, 2004, Langenhorst filed a request for
administrative appeal with IDNR, challenging the department's
approval of the revisions to the permits. Langenhorst was later joined
in his appeal by other Clinton County residents. They raised, among
other issues, whether the proposed remediation plan for the refuse
disposal areas was adequate in addressing contamination of the
underlying Pearl Sand aquifer. On May 25, 2005, a final administrative
decision, which adopted the order of the hearing officer granting
summary judgment in favor of Monterey and IDNR, was entered.
Concerning the groundwater issue, the hearing officer had found, in
pertinent part:
“Petitioners and their expert witness Robert Johnson have admitted
the revisions as approved prevent material damage to the hydrologic
balance outside the mine property and minimize the disturbance of the
hydrologic balance within the boundaries of the mine. That satisfies
the regulatory requirements and requires summary judgment in favor
of the Department and Monterey.”
The petitioners did not seek review of this final administrative decision
in the circuit court, as allowed under section 8.10 of the Mining Act
(225 ILCS 720/8.10 (West 2008)).
In June 2005, Langenhorst filed a citizen complaint with the
United States Department of the Interior, Office of Surface Mining
Reclamation and Enforcement (OSM), pursuant to section 1267(h) of
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. §
1267(h) (2006)), requesting that OSM review the adequacy of the
reclamation plan at Mine No. 2.4 OSM accepted as his citizen
complaint, among other issues, whether there was a failure to protect
the groundwater at the mine site. OSM's Alton Field Division (Field
Division) ultimately determined, in pertinent part, that since Monterey
was appropriately implementing the state-mandated remedial plan
designed to bring about abatement of the existing water violation,
IDNR was taking appropriate action to continue enforcing the
Page 4 of 18

corrective action plan and had good cause for not taking additional
enforcement action. On April 10, 2006, OSM's Regional Director, Mid–
Continent Regional Coordinating Center, affirmed the decision of the
Field Division. Langenhorst appealed that decision to the Interior
Board of Land Appeals, an administrative appeals board in the United
States Department of the Interior. On February 20, 2008, the Interior
Board of Land Appeals affirmed the decisions of the Regional Director
and the Field Division.
On January 4, 2007, Langenhorst filed a second state
administrative appeal with IDNR. In December 2006, IDNR had
approved an incidental boundary revision to Permit No. 57, which
allowed for an additional parcel of land for an underground
wastewater discharge pipeline that was necessary to implement the
groundwater management zone. Langenhorst challenged whether this
underground pipeline was a continuation of mining operations that
would require Monterey to comply with additional mining statutory
and regulatory requirements. On July 18, 2007, the hearing officer
entered summary judgment in favor of Monterey and IDNR. The order
also provided, in pertinent part, that “Langenhorst's [s]ummary
[j]udgment [m]otion is replete with inaccurate statements and refuted
testimony. * * * The fact that Mr. Langenhorst is attempting to
relitigate issues already decided and encompassed by a previous
administrative appeal makes me inclined to consider sanctions against
Mr. Langenhorst.” As with the first state administrative appeal,
Langenhorst did not seek review in the circuit court.
Current Lawsuit
On August 8, 2008, plaintiff filed an 18–count complaint against
Monterey, IEPA, and IDNR under the citizen suit provision contained
in section 8.05(a) of the Mining Act. The complaint sought, in pertinent
part, to declare that the reclamation plan contained in the revised
permits did not comply with the performance standards of the Mining
Act by allowing Monterey to permanently retain the two
impoundments of coal mine waste at the site. Plaintiff sought to
require Monterey to submit a permit renewal application that would
comply with all of the requirements of the Mining Act and IDNR's
regulations. In response to defendants' motions to dismiss, plaintiff
filed motions for leave to file an amended complaint and for the
voluntary dismissal of IDNR. The trial court granted the motions.
Page 5 of 18

Plaintiff filed the instant six-count amended complaint on
December 22, 2008. In count I, plaintiff alleged, in pertinent part, that
Monterey violated section 3.03 of the Mining Act by failing to restore
the land where the two RDAs were situated to a condition capable of
supporting the same use or a higher or better use than before mining.
In count II, plaintiff alleged, in pertinent part, that Monterey violated
section 3.08(b) of the Mining Act by permanently retaining
impoundments of coal mine waste at the site. In count III, plaintiff
alleged, in pertinent part, that Monterey had permanently graded Mine
No. 2 in a manner that failed to restore the affected land to its
approximate original contour, as required by section 1.03(a)(2) of the
Mining Act. In count IV, plaintiff alleged, in pertinent part, that
Monterey disturbed the hydrologic balance and failed to protect the
quality and quantity of the groundwater by permanently retaining the
two impoundments of coal waste in violation of section 3.10(a) of the
Mining Act. In count V, plaintiff alleged, in pertinent part, that IEPA
violated section 4.09 of the Mining Act by developing and approving the
groundwater management zone because it negatively impacted the
quality and quantity of the groundwater at the site. Finally, in count VI,
plaintiff alleged, in pertinent part, that Monterey was not complying
with the Water Use Act by failing to follow the rule of “reasonable use,”
as provided in section 6 (525 ILCS 45/6 (West 2008)), by pumping
excessive quantities of groundwater from the Pearl Sand aquifer.
Specifically, plaintiff alleged that Monterey in order to comply with the
corrective action plan approved by IEPA must pump 4 million gallons
of water from the aquifer each week, which exceeds Monterey's fair
share for the size of its facility.
In all five counts against Monterey, plaintiff sought injunctive
relief to require Monterey to remove the permanent impoundments
known as RDA–1 and RDA–2 and to dispose of the waste contained
therein off site. In count V, plaintiff sought the immediate revocation of
the groundwater management zone and a ruling that any future
groundwater management zone developed by IEPA for the site must
comply with the Mining Act. In count VI, plaintiff sought to require
Monterey to develop and implement a written plan that limits the
extraction of groundwater at the site to no more than 100,000 gallons
per day. In all six counts, plaintiff sought costs, fees, and any other
relief the court deemed appropriate.
Page 6 of 18

Monterey moved to dismiss counts I through IV of the amended
complaint pursuant to section 2–619 of the Code of Civil Procedure
(Code) (735 ILCS 5/2–619 (West 2008)) and count VI pursuant to
section 2–615 of the Code (735 ILCS 5/2–615 (West 2008)). IEPA
moved to dismiss count V under sections 2–615 and 2–619 of the
Code.
On April 28, 2009, the trial court dismissed plaintiff's amended
complaint on all counts with prejudice and entered an order which
provided, in pertinent part:
“All parties agree that in order to operate the mine [Monterey] had to
and did obtain a permit from [IDNR]. All parties agree that the permit
does provide for a reclamation plan. Under the Act the permit and the
reclamation plan are not approved unless IDNR finds that all statutory
requirements are met. Plaintiff concedes that it has no evidence to
show that either [Monterey] or IEPA is violating the terms of the permit
or the terms of the reclamation plan. * * * [Section 8.10 of the Act]
provides that final administrative decisions of [IDNR] shall be subject
to judicial review pursuant to the Administrative Review Law * * *.
Plaintiff concedes that the time to challenge the permit which included
the reclamation plan has expired, but plaintiff argues that 8.05(a)
authorizes a suit for any violation of the Act by any aggrieved person.
The court disagrees with plaintiff's assertion that 8.05(a) allows a suit
to challenge what IDNR has previously approved through approval of
the permit and reclamation plan. * * * The court is persuaded by
IEPA's argument that it is not a violator of the Act since at best it
simply approved a groundwater management zone that was
incorporated into the terms of a permit reclamation plan. The court's
understanding of [the Act] is that IDNR issues permits, and that
permits and permit revisions include reclamation plans. To the extent
that the groundwater management zone approved by IEPA is at all
relevant, it is only relevant within the context of IDNR's approval of the
permit revision and reclamation plan. * * * [Monterey's] * * * motion to
dismiss count VI is granted. The Water Use Act provides no private
right of action.”
The appellate court reversed the trial court and held that counts
I through IV and count VI against Monterey were allowed under section
8.05(a) because those counts alleged various ongoing violations of the
Mining Act. The appellate court concluded that plaintiff was not
collaterally attacking permitted activity in those counts because there
Page 7 of 18

was no dispute that the permits had expired. As for count V, the
appellate court concluded that the allegation that IEPA violated the
Mining Act by authorizing the groundwater management zone could
also proceed under section 8.05(a). The appellate court held,
however, that to the extent that portions of count V constitute a
collateral attack on the previously issued permits, the trial court was
correct in dismissing it. Concerning count VI, without conducting any
significant analysis, the appellate court concluded that the Water Use
Act provides a private right of action because “section 8.05 of the
[Mining Act] specifically allows such enforcement actions.” 404
Ill.App.3d at 556, 344 Ill.Dec. 39, 936 N.E.2d 181.
The appellate court also rejected defendants' argument that
plaintiff's action was barred by res judicata and collateral estoppel
due to the state and federal administrative appeals. The appellate
court reasoned that “Exxon” was not a party to the previous litigation
and plaintiff's claims involved allegations of ongoing environmental
concerns. Additionally, the appellate court rejected defendants'
argument that IDNR was a necessary party to this case and concluded
that upon remand IDNR could be added by either Monterey or IEPA, or
the department could seek to intervene. Consequently, the appellate
court reversed the dismissal as to the five counts against Monterey and
modified the dismissal of the sole count against IEPA to be without
prejudice. 404 Ill.App.3d at 558, 344 Ill.Dec. 39, 936 N.E.2d 181.
Monterey and IEPA both filed petitions for leave to appeal that
were allowed by this court, which consolidated the cases. Ill. S.Ct. R.
315 (eff. Feb. 26, 2010). We also allowed IDNR and the Illinois Coal
Association to file amicus curiae briefs on behalf of Monterey and
IEPA. In addition, we allowed the Illinois Chapter of the Sierra Club to
file a brief amicus curiae on behalf of plaintiff.

Id. at 959-963 (footnotes omitted). The Illinois Supreme Court held that: (1) the
circuit court review of terms of permit was not available to the citizen group under
Mining Act’s citizen suit provision; (2) the fact that company’s mining permits had
expired did not permit the citizen group to challenge terms of permits in citizens
suit under Mining Act; and (3) the company was not required to follow rule of
Page 8 of 18

reasonable use under Water Act when taking water from aquifer to implement
corrective action plan for ground water management zone.
Well after the Illinois Supreme Court issued its decision, petitioner, on March
17, 2014, submitted to the Secretary a request to withdraw approval of Illinois’
Coal Mining Program and a 60 day notice that suit would follow if approval is not
withdrawn. On November 12, 2014 (after the petition was filed), the OSMRE sent
petitioner’s counsel, Ms. Livingston, a letter informing her that the OSMRE
completed the verification process and that the OSMRE reached a decision
regarding petitioner’s request. (Doc. 5-1, p.1). Specifically, OSMRE “determined
that the facts presented do not establish a reason to believe that Illinois is not
effectively implementing, administering, enforcing and maintaining its approved
State Program. (Doc. 5-1, p. 1).
The Court turns to address the motion to intervene as the Court finds that it
is procedurally proper to decide the intervention question before addressing the
merits of the motion to dismiss.
ExxonMobil argues that as the holder of the permits which petitioner seeks
to revoke, it may intervene in the action. Petitioner opposes the motion maintaining
that “this case is not about permits and it is not about challenging permits outside
the inapplicable Administrative Review Act…”

Instead petitioner maintains this

lawsuit is an attempt “to get the lawfully required remediation of pollution caused
by ExxonMobil economic activities and its deliberate and effective manipulation of
government entities.”
Page 9 of 18

Federal Rule of Civil Procedure 24(a) provides:
Intervention of Right. On timely motion, the court must permit
anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that
interest.
Fed.R.Civ.P. 24(a).

Thus, under Rule 24(a)(2), the proposed intervenor must

establish: (1) timeliness, (2) an interest relating to the subject matter of the main
action, (3) at least potential impairment of that interest if the action is resolved
without the intervenor, and (4) the lack of adequate representation by existing
parties.

Reid L v. Ill. State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002);

Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 945-46 (7th Cir. 2000); Reich
v. ABC/York-Estates Corp., 64 F.3d 316, 321 (7th Cir. 1995).

The proposed

intervenor must meet all four criteria. Reid, 289 F.3d at 1017.
The Court finds that ExxonMobil has met the required criteria and that
intervention is proper under the circumstances in this case.

First, timeliness,

“forces interested non-parties to seek to intervene promptly so as not to upset the
progress made toward resolving a dispute.”

Grochocinski v. Mayer, Brown, Rowe

& Maw, LLP, 719 F.3d 785, 797 (7th Cir. 2013).

The test for timeliness is

essentially one of reasonableness: potential intervenors need to be reasonably
diligent in learning of a suit that might affect their rights, and upon so learning they
need to act reasonably promptly.”

Reich, 64 F.3d at 321.
Page 10 of 18

ExxonMobil argues that it did not receive notice of the case until almost a
month after the suit was filed and that it did not “discover the full scope of
Plaintiff’s purpose and design for the litigation until Plaintiff filed its Response to
the Dept’s Motion to Dismiss (Doc. 9).” (Doc. 14, p. 11). The petition for writ of
mandamus was filed on October 14, 2014 (Doc. 2); the motion to dismiss was filed
on December 19, 2014 (Doc. 5), the response to the motion to dismiss was filed
January 23, 2015 (Doc. 9) and the motion to intervene was filed on February 19,
2015 (Doc. 14). The Court finds that the motion to intervene is timely and that no
party will suffer any prejudice by the intervention.
As to the second factor, “[t]he ‘interest required by Rule 24(a)(2) has never
been defined with particular precision.”

Sec. Ins. Co. of Hartford, 69 F.3d at

1380. The interest of a potential intervenor must be a “direct, significant, legally
protectable” one. Id. “It is something more than a mere “betting” interest, but
less than a property right.”

Id.

ExxonMobil argues that it has an interest in its permits which ExxonMobil
argues petitioner seeks to challenge and invalidate. Petitioner, on the other hand
argues, that this case does not have anything directly to do with ExxonMobil or its
permits per se because the central matter for the Court to reconcile is that, because
members and officers of Citizens Opposing Pollution and all other Illinois citizens
are deprived of any ability to enforce applicable provisions of law regarding
regulation of post-mining land use and post-mining land reclamation operations
located in the State of Illinois. Further, petitioner argues that this case is not about
Page 11 of 18

permits and that it may proceed because Exxon Mobile’s permits are expired. The
Court agrees with ExxonMobil and finds that it does have an interest in this
litigation. In fact, petitioner’s writ of mandamus places the permits at issue and the
petition is peppered with reference to ExxonMobil’s mining operations and the
litigation history regarding ExxonMobil and its mining operations in Illinois.
Specifically, petitioner alleges that ExxonMobil’s “Permits Nos. 57 and 183 must be
reviewed by the Secretary.” (Doc. 2, ¶ 87).

Further, petitioner claims that

respondent must “determine whether [ExxonMobil] obtained a proper permit.”
Doc. 2, ¶¶ 90 & 101(3)). Lastly, petitioner specifically requests the Court to enter
an Order issuing a writ of mandamus directed at the Secretary:
(2) “Requiring the Secretary to perform her ministerial, non-discretionary
duty under 30 U.S.C. §1271(b) of the SMCRA to give notice to the public
and the State and to hold a hearing within 30 days of such notice in the
State, to determine whether ExxonMobil Coal USA obtained a proper
permit for reclamation of the Monterey Coal Mine No. 2 Refuse Disposal
Areas and to determine whether the current Reclamation Plan satisfies
the requirements to return the land to its former use as prime farmland
or to a higher better use, to return the land to its natural contours, to
remove all permanent impoundments with waster properly disposed of
and to determine whether the groundwater was restored for use as
drinking water to the community.”
Doc. 2, p. 24. Clearly, ExxonMobil’s permits and the reclaimed Mine No. 2 site are
protectable interests which relate to the litigation. Moreover, the Court rejects
petitioner’s argument that it may proceed because the permits are expired. In
Illinois, “[a] permittee need not renew the permit if no surface coal mining
operations will be conducted under the permit and solely reclamation activities
remain to be done.”

62 Ill. Adm. Code 1773.11(2).
Page 12 of 18

Further, “[o]bligations

established under a permit continue until completion of surface coal mining and
reclamation operations, regardless of whether the authorization to conduct surface
coal mining operations has expired.”

Id.; see also, 30 C.F.R. § 773.4(a); Citizens

Opposing Pollution v. ExxonMobil Coal USA, 962 N.E.2d 956, 967 (Ill. 2012)
(“Consequently, there was no requirement for Monterey to renew the permits
because, as is undisputed, only reclamation activities remained to be completed
after the permits expired in January 2005 and October 2006.

Following the

expiration of the permits, Monterey’s obligation to complete the reclamation work
in accordance with the permits remained unchanged and did not provide plaintiff
with a new basis to challenge the terms of the revised permits.”).
As to third factor, “[t]he existence of ‘impairment’ depends on whether the
decision of the legal question involved in the action would as a practical matter
foreclose the rights of the proposed intervenors in a subsequent proceeding.”

Meridian Homes Corp., 683 F.2d at 204. Potential foreclosure is measured by the
general standards of stare decisis.” Id. ExxonMobil argues that it interests may be
impaired and impeded if not allowed to intervene.

The Court agrees with

ExxonMobil. A ruling in this case that would require the respondent to revoke the
IDNR’s authority to administer the Illinois mining program and/or requires the
respondent to initiate enforcement and review of the permits and the reclamation
plan, would diminish ExxonMobil’s administrative safeguards.

If ExxonMobil is

not allowed to intervene, it may be left with no legal means to contest the outcome
of the litigation.
Page 13 of 18

Lastly, “[a] party seeking intervention as of right must only make a showing
that the representation ‘may be’ inadequate and ‘the burden of making that showing
should be treated as minimal.’”

Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774

(7th Cir. 2007)(citations omitted). The Court finds that ExxonMobil has met this
prong of the test. The interests of the present parties do not coincide with and are
not the same as of ExxonMobil in that they are advancing their own interests.
ExxonMobil’s interests in its permits and reclaimed Mine No. 2 are personal and
specific to ExxonMobil, while the current parties purport to advance and protect
interests of the public. Based on the foregoing, the Court GRANTS the motion to
intervene pursuant to Rule 24(a).
The Court now turns to address the pending motion to dismiss.
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as
true all allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To avoid
dismissal under Rule 12(b)(6) for failure to state a claim, a complaint must
contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied if the
complaint (1) describes the claim in sufficient detail to give the defendant fair notice
of what the claim is and the grounds upon which it rests and (2) plausibly suggests
that the plaintiff has a right to relief above a speculative level. Bell Atl., 550 U.S. at
555; see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); EEOC v. Concentra

Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial plausibility
Page 14 of 18

when the plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct

alleged.” Iqbal, 129 S.Ct. at 1949 (citing Bell Atl., 550 U.S. at 556).
First, respondent argues that the petition fails to state a claim upon which
the extraordinary relief of a writ of mandamus can be granted.

Specifically,

respondent argues that the Secretary’s discretionary decision to take enforcement
action under the SMCRA cannot be compelled by writ of mandamus. Petitioner
counters that its writ of mandamus supports a valid claim for relief because it has a
vested right to seek and obtain relief from respondent under the SMCRA as it has
no other adequate remedy at law and respondent’s duties under SMCRA are
mandatory and non-discretionary. Based on the following, the Court agrees with
respondent and ExxonMobil.
30 U.S.C. § 1271(b) provides:
Whenever on the basis of information available to him, the
Secretary has reason to believe that violations of all or any part of an
approved State program result from a failure of the State to enforce
such State program or any part thereof effectively, he shall after public
notice and notice to the State, hold a hearing thereon in the State
within thirty days of such notice. If as a result of such hearing the
Secretary finds that there are violations and such violations result
from a failure of the State to enforce all or any part of the State
program effectively, and if he further finds that the State has not
adequately demonstrated its capability and intent to enforce such
State program, he shall give public notice of such finding. During the
period beginning with such public notice and ending when such State
satisfies the Secretary that it will enforce this chapter, the Secretary
shall enforce, in the manner provided by this chapter, any permit
condition required under this chapter, shall issue new or revised
permits in accordance with requirements of this chapter, and may
issue such notices and orders as necessary for compliance therewith:
Page 15 of 18

Provided, That in the case of a State permittee who has met his

obligations under such permit and who did not willfully secure the
issuance of such permit through fraud or collusion, the Secretary shall
give the permittee reasonable time to conform ongoing surface mining
and reclamation to the requirements of this chapter before suspending
or revoking the State permit.
Pursuant to Section 1271(b), the Secretary has the discretion to determine

whether it “has reason to believe that violations” of the Illinois mining program are
occurring.

Further, it is clear that 30 U.S.C. § 1271(b) sets forth specific

requirements that must be met before the Secretary may take remedial action
against a state permittee. Thus, it is not a mandatory or nondiscretionary act as
petitioner argues.

The Court finds that the “reason to believe” standard is

deferential and the Secretary only has a discretionary duty to consider the
revocation of a state-approved mining program.
In fact, the record reveals that respondent followed the statute when she
considered petitioner’s information and determined that no violations exist.
Specifically, the OSMRE issued the following in regards to petitioner’s March 17,
2014 request to investigate the Illinois approved State Program, as interpreted by
the Illinois Supreme Court in Citizens Opposing Pollution v. ExxonMobil Coal USA,
962 N.E.2d 956 (Ill 2012), to determine whether the State is implementing,
administering, enforcing, and maintaining its program effectively:
“OSMRE conducted the analysis requested, as required by 30 C.F.R. §
733.12(a)(2)-(d). The verification process entails an examination to
determine, among other things, the accuracy of the allegations,
whether the allegations relate to an existing requirement of the
approved program, and ultimately whether the evidence and
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information available creates a reason to believe that violations of all
or any party of an approved State program result from a failure of a
State to enforce the State program effectively. If so, OSMRE would
need to conduct an evaluation pursuant to 30 C.F.R. § 733.12(a)(2).
OSMRE analyzed your submission, and for the reasons to follow, has
determined the facts presented do not establish a reason to believe
that Illinois is not effectively implementing, administering, enforcing
and maintaining its approved State Program.”
(Doc. 5-1, p.1).
Furthermore, petitioner seems to argue that it wants the Court to mandate a
particular decision/result by the respondent that the Illinois Mining Act is now
enforced in a way that results in violations and that is contrary to the statutory
language. Under federal law, the issuance and contents of permits may only be
challenged through the statute’s administrative provisions, while citizen suits may
only be brought to contest an operator’s compliance with the permits. Under the
clear language of the statute, mandamus is not available to petitioner.
dismissal is proper under Rule 12(b)(6).

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Thus,

Conclusion
Accordingly, the Court GRANTS intervenor ExxonMobil Coal USA, Inc.’s
motion to intervene (Doc. 14). Further, the Court GRANTS respondent’s motion
to dismiss (Doc. 5).

The Court DISMISSES with prejudice this cause of action.

The Court DIRECTS the Clerk of the Court to enter judgment reflecting the same.
Lastly, the Court DENIES as moot the motion to strike (Doc. 20).
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2015.07.30
12:31:48 -05'00'

Signed this 30th day of July, 2015.

United States District Judge

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