Coal River Mountain Watch v. United States Department of the Interior

Filing 29

MEMORANDUM OPINION & ORDER; directing that the stay in this action is lifted; directing that this action is dismissed without prejudice and stricken from the docket of the Court. Signed by Judge John T. Copenhaver, Jr. on 10/18/2016. (cc: attys; any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
COAL RIVER MOUNTAIN WATCH,
Plaintiff,
v.

Civil Action No. 2:13-26251

UNITED STATES DEPARTMENT OF THE INTERIOR and
SALLY JEWELL, in her official capacity as
Secretary of the Interior, and
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT and
JOSEPH PIZARCHIK, in his official capacity as
Director of the Office of Surface Mining
Reclamation and Enforcement,
Defendants.

MEMORANDUM OPINION & ORDER
Pending is the motion to dismiss without prejudice,
filed by the plaintiff, Coal River Mountain Watch (“Coal
River”), on April 24, 2014.
On October 21, 2013, Coal River filed two suits: one
here, and one in the United States District Court for the
District of Columbia (“D.C. Court”).

Each case is basically the

same, centering on a letter issued by the Office of Surface
Mining Reclamation and Enforcement (“OSM”) to the West Virginia
Department of Environmental Protection (“WVDEP”) on August 20,
2013.

The letter, among other things, reversed a decision by

the OSM Charleston Field Office.

The Field Office found that

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the WVDEP acted in an arbitrary and capricious manner and abused
its discretion because the WVDEP did not justify why a mining
permit was not automatically terminated.1

The permit is the

Eagle II mining permit held by Marfork Coal Company for a mine
located in Raleigh County, West Virginia.
The Surface Mining Control and Reclamation Act
(“SMCRA”) and the OSM regulations under that statute require
mining operations to begin no later than three years after a
permit issues.

30 U.S.C. § 1256(c) (2012); 30 C.F.R.

§ 773.19(e)(1) (2014).

According to the plaintiff, the mine

subject to the Eagle II permit has not begun mining operations,
but the permit was issued more than three years ago.

In the

plaintiff’s estimation, the WVDEP determined -- in line with a
longstanding internal policy and its interpretation of the OSM
regulation -- that it needed to notify Marfork Coal before
terminating the permit.

According to the WVDEP, if the WVDEP

fails to notify the mine of the impending termination, the
permit is not terminated.

The plaintiff alleges the OSM letter

at issue affirmed that the WVDEP was not arbitrary or capricious

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The Field Office issued a “ten-day notice” to the WVDEP. The
Field Office appears to have found that WVDEP’s response to the
ten-day notice was arbitrary, capricious, and an abuse of
discretion. The ten-day notice is used by OSM to investigate in
situations where it has reason to believe that SMCRA has been
violated by a state agency. See 30 C.F.R. § 842.11 (b)(1)
(2014).

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in making such an interpretation of the regulations.

In both

this case and the D.C. Court case, the plaintiff believes the
August 20, 2013 OSM letter to be a “de facto rule,” the making
of which violated the Administrative Procedure Act, 5 U.S.C. §§
701-706 (2012), because neither notice nor an opportunity to
comment were provided by OSM to the general public.
Coal River filed cases in two courts because it was
originally unsure of which court had jurisdiction.

Title 30

U.S.C. § 1276(a)(1) provides that actions of OSM “promulgating
national rules or regulations” are subject to judicial review in
the D.C. Court, actions where OSM reviews a state SMCRA program
are subject to judicial review in the federal court for the
district where the capital of that state lies, and other OSM
rulemaking is subject to judicial review in the federal court
for the district where the mine is located.

See National Mining

Ass’n v. Kempthorne, 512 F.3d 702, 706-07 (D.C. Cir. 2008).

In

this case, the Southern District of West Virginia is the
district encompassing the two latter options of § 1276(a)(1).
The defendants filed a motion to dismiss or stay in
the D.C. Court on April 15, 2014, on the grounds that this
court, not the D.C. Court, is the appropriate one to hear the
dispute.

Among other arguments regarding venue and jurisdiction

in the D.C. Court, the defendants maintain that the letter is a

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decision of agency adjudication, not rulemaking.

Therefore,

according to the defendants, § 1276 does not apply, and this
court is the appropriate venue under 28 U.S.C. § 1391 for the
review of agency adjudication under SMCRA, as it is most
connected to the events at issue in the case.

Mot. Stay Ex. A

15-17.
The court stayed this case at the parties’ joint
motion on April 21, 2014.

The parties requested the stay

because of the pending motion to dismiss or stay filed by the
defendants in the D.C. Court.

The parties desired to “avoid

duplicative litigation and promote judicial efficiency,” in
seeking a stay until the D.C. Court decided the motion to
dismiss or stay.

Motion to Stay ¶ 5.

This court granted the

stay, directing the parties to file a report once the D.C. Court
issued a decision.
On April 24, 2014, plaintiff filed a motion to
dismiss, asserting it had discovered more information through
the D.C. Court action:
The agency [(OSM)] has referred to the 2013 letter in
response to the National Wildlife Federation et al.’s [30
C.F.R.] § 733 petition to remove West Virginia’s regulatory
authority under SMCRA, and in connection with a similar
dispute involving an expired mining permit in Alaska.
Moreover, in [the D.C. Court] action, Defendants have filed
a Motion to Dismiss in which they concede to using the
challenged 2013 letter to evaluate another mining permit
besides the Marfork Eagle No. 2 mine.

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Mem. Supp. Mot. Dismiss 2.

That new purported evidence

convinces Coal River that the OSM letter was an act of national
rulemaking, and therefore that the D.C. Court has exclusive
jurisdiction under § 1276(a)(1).

Accordingly, Coal River moved

to dismiss the case in this court without prejudice, under
Federal Rule of Civil Procedure 41(a)(2).2
The defendants initially collectively responded on May
8, 2014, arguing that dismissing the case would be inefficient
should the D.C. Court decide that the case belongs in the
Southern District of West Virginia, and that the defendants
would be forced to reassert their motion to dismiss or stay in
the D.C. Court as a motion to transfer.
On December 8, 2015, plaintiff and the defendants
filed notices of decision and joint status reports.

In the

reports, the parties stated that the D.C. Court denied the
federal defendants’ motion to dismiss and that “the parties have
since conferred and plan to file a joint proposed schedule for
designating an administrative record and briefing cross-motions
for summary judgment in the D.C. Court.
Decision and Joint Status Report at ¶ 8.

Dec. 8, 2016 Notice of
In order to avoid

duplicative litigation, the parties request that the court lift

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The plaintiff needs court approval to dismiss the case because
an answer has been filed. See Fed.R.Civ.P. 41(a)(1-2).

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the stay and grant plaintiff’s motion to dismiss in favor of the
ongoing litigation in the D.C. Court.

Id. at ¶ 9.

“The purpose of Rule 41(a)(2) is freely to allow
voluntary dismissals unless the parties will be unfairly
prejudiced.”
1987).

Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.

“A plaintiff’s motion under Rule 41(a)(2) should not be

denied absent substantial prejudice to the defendant.”
Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986).

Andes v.

Also:

Factors a district court should consider in ruling on such
motions are: (1) the opposing party's effort and expense in
preparing for trial; (2) excessive delay or lack of
diligence on the part of the movant; (3) insufficient
explanation of the need for a dismissal; and (4) the
present stage of the litigation, i.e., whether a motion for
summary judgment is pending. These factors are not
exclusive, however, and any other relevant factors should
be considered by the district court depending on the
circumstances of the case. Courts generally agree, however,
that the mere prospect of a second lawsuit is not
sufficient prejudice to justify denying a motion for
voluntary dismissal. Similarly, “the possibility that the
plaintiff will gain a tactical advantage over the defendant
in future litigation will not serve to bar a second suit.”
Davis v. USX Group, 819 F.2d 1270, 1275 (4th Cir.1987).
White v. Equifax Credit Information Servs., Slip. Op., Civ.
Action No. 1:12-6374, 2014 WL 1304321, at *1 (S.D.W. Va. Mar.
24, 2014), quoting Gross v. Spies, 1998 WL 8006, at *5 (4th Cir.
Jan. 13, 1998).
Because the defendants now support plaintiff’s motion
to dismiss, the court finds that on the balance of the factors
in this case, the case should be dismissed without prejudice.

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unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day for Rule 26(f) meeting.

02/15/2016
Last day to file Report of Parties= Planning
Meeting.
For the reasonsSee L.R. it isP. 16.1. that the stay in
stated, Civ. ORDERED
this action be,Scheduling conference at 4:30 p.m.further ORDEREDC.
and it hereby is, lifted. It is at the Robert
02/22/2016
Byrd United States Courthouse in Charleston, before
that this action be, and it hereby is, dismissed without
the undersigned, unless canceled. Lead counsel
directed to appear.
prejudice and stricken from the docket of the court.
02/29/2016
Entry of scheduling order.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit a copy of this order
The Clerk is and any to transmit parties.
to all counsel of record requestedunrepresented this Order and
Notice to all counsel of record and to any unrepresented
parties.
ENTER: October 18, 2016
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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