Citations
- 147 F. Supp. 2d 474
Full opinion text
MEMORANDUM OPINION AND PRELIMINARY INJUNCTION HEARING ORDER
HADEN, Chief Judge.
Pending is Plaintiffs motion for a preliminary injunction on Count 4 of the Complaint. For reasons discussed below, the Court DISMISSES this action against the Defendant Director (now Secretary) of the West Virginia Division of Environmental Protection (DEP) because it is barred by the Eleventh Amendment of the United States Constitution. Consequently, the Court lacks jurisdiction to entertain Plaintiffs motion for the injunction, and it is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2000 Plaintiff West Virginia Highlands Conservancy (Conservancy) filed this civil action under the citizen suit provision of the Surface Mining Control and Reclamation Act (SMCRA), 30 [u.S.C. § 1270(a)(2). The Complaint al-.eged the state alternative bonding program for surface mine reclamation bonds was inadequate to meet the minimum requirements of SMCRA. Further, it alleged that in 1995 the Office of Surface Mining (OSM) found the state program did not meet the objectives and purposes of federal law. OSM ordered the State to bring the program into compliance, but as of 2000 the State had failed to do so. Instead, the State DEP continued to approve surface mining permits although the combination of site specific bonds and provision of a special reclamation fund demonstrably were inadequate for the state to reclaim the land and treat water should the bonds be forfeit.
In lieu of an Answer, the Defendant DEP Secretary moved to dismiss contending, inter alia, the Eleventh Amendment of the United States Constitution barred the action against the State Defendant. On April 5, 2001 the Court denied the motion, finding SMCRA provided for federal preemption of inconsistent state law. West Virginia Highlands Conservancy v. Norton, 137 F.Supp.2d 687, 694-95 (S.D.W.Va.2001) (citing 30 U.S.C. § 1255(a)). Because OSM had found West Virginia’s alternative bonding system was incapable of meeting the objectives and purposes of the conventional federal bonding program, the Court concluded the state bonding program was superseded by federal law. Id. at 694.
On April 24, 2001 our Court of Appeals redefined federal and state roles under SMCRA. Bragg v. West Virginia Coal Ass’n, 248 F.3d 275, 289-90 (4th Cir.2001). In its ruling, federal preemption pursuant to Section 1255(a) played no part.
On May 15, 2001 the Conservancy moved for a preliminary injunction on Count 4 of the Complaint, which the Court set for hearing on May 16, 2001.
II. PRELIMINARY INJUNCTION HEARING
Plaintiffs prayer sought specific injunc-tive relief of a progressive nature. First, it sought to preliminarily enjoin the Defendant DEP Secretary from issuing surface mine permits unless they included site specific bonds sufficient to ensure completion of the reclamation plan, as required by federal law. See 30 U.S.C. § 1259(a). Additionally, Plaintiff moved to enjoin DEP from issuing any and all surface mining permits if, by October 1, 2001, the State had failed to adopt revisions to the special reclamation fund adequate to eliminate the fund deficit and meet future liabilities. To carry its burden, Plaintiff called Secretary Callaghan as its first witness.
Secretary Callaghan testified West Virginia has a two-tier alternative reclamation bonding system. The first tier is a site specific bond artificially capped at five thousand dollars ($5000) per acre. The second tier is a special reclamation fund funded by a(3