West Virginia Highlands Conservancy, Incorporated v. DIRK KEMPTHORNE, Secretary of the Department of the Interior

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1596
WEST VIRGINIA HIGHLANDS CONSERVANCY,
INCORPORATED,
Plaintiff - Appellant,
versus
DIRK KEMPTHORNE, Secretary of the Department
of the Interior,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
District Judge. (2:05-cv-00011-FPS)
Argued: November 30, 2006 Decided: March 13, 2007
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed in part and vacated and remanded in part by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge King and
Senior Judge Hamilton joined.
ARGUED: Walton Davis Morris, Jr., Charlottesville, Virginia, for
Appellant. Kathryn E. Kovacs, UNITED STATES DEPARTMENT OF JUSTICE,
Environment & Natural Resources Division, Appellate Section,
Washington, D.C., for Appellee. ON BRIEF: Wayne A. Babcock, Field
Solicitor, UNITED STATES DEPARTMENT OF THE INTERIOR, Pittsburgh,
Pennsylvania, for Appellee.

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2
Unpublished opinions are not binding precedent in this circuit.

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1The Interior Board of Land Appeals (“Board”) exercises the
authority of the Secretary in matters pertaining to the Surface
Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328,
and certain regulations at issue in this case. Thus, we review
herein the actions of the Board, acting on behalf of the Secretary,
which prompted the Conservancy’s complaint and petition for review.
3
SHEDD, Circuit Judge:
West Virginia Highlands Conservancy, Inc. (“Conservancy”)
filed a “Complaint and Petition for Judicial Review” in the
district court, seeking review of the decision of the Secretary of
the Department of the Interior (“Secretary”). 1 The district court
granted summary judgment in favor of the Secretary, and the
Conservancy now appeals. For the reasons set forth below, we
affirm in part and vacate in part, and we remand for further
proceedings consistent with this opinion.
I
This case concerns a West Virginia surface coal mine operated
by LaRosa Fuel Company, Inc. (“LaRosa”). In 1979, West Virginia
issued a permit to LaRosa outlining the conditions for the
operation of the mine. When LaRosa ceased active mining operations
in 1980, it sought and received a release of this permit through
the appropriate state authorities. The Secretary and the
Conservancy both contend that between the time LaRosa discontinued
mining and September 1992, an unlawful amount of acid mine drainage
began leaching into the surrounding waterways. In September 1992,

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2The review of the jurisdictional basis for both the Notice of
Violation and the Failure to Abate Cessation Order is still pending
in the hearings division of the Department of the Interior. The
pendency of this review gives rise to the ripeness issues discussed
herein.
4
the Conservancy filed a citizen complaint with the Office of
Surface Mining (“OSM”), requesting federal inspection of the mine
and appropriate enforcement action to ensure abatement of the
unlawful discharge. OSM sent the West Virginia Department of
Environmental Protection (“WVDEP”), the state agency that OSM
believed had jurisdiction over the mine, a ten-day notice,
notifying it of the alleged violations occurring at the mine.
WVDEP refused to take any enforcement action, stating that LaRosa’s
permit had been released. This refusal ultimately led to a federal
inspection by the OSM field office in Charleston, West Virginia
(“Field Office”).
Following its inspection in early 1993, the Field Office
issued a “Notice of Violation” to LaRosa, followed by a “Failure to
Abate Cessation Order.” LaRosa filed for agency review of these
citations. 2 For more than a year after the Failure to Abate
Cessation Order issued, OSM took no further action against LaRosa,
despite the alleged continued violations. In 1994, the Conservancy
filed a request with the Assistant Director of OSM (“Assistant
Director”) for an informal review of the inaction of OSM, seeking
to compel OSM to pursue enforcement action against LaRosa. The
Conservancy alleged that such action was required by 30 C.F.R. §

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845.15(b)(2). In its request for informal review, the Conservancy
stated two grievances: (1) OSM failed to take proper enforcement
action against LaRosa following LaRosa’s apparent disregard for the
Notice of Violation and Failure to Abate Cessation Order; (2) OSM
should issue an additional notice of violation to LaRosa for
failing to maintain a National Pollution Discharge Elimination
System (“NPDES”) permit and failing to complete periodic monitoring
and reporting, in violation of the Clean Water Act (“CWA”).
After the Conservancy filed its request for informal review
with the Assistant Director, the Field Office reinspected the mine
and found that the unlawful discharges continued. OSM then
immediately filed documentation with the Department of Justice
(“DOJ”) seeking injunctive relief against LaRosa. A few months
after OSM filed its request with the DOJ, the Assistant Director
issued his decision in favor of OSM -- and against the Conservancy
-- on all counts. First, the Assistant Director determined that
the enforcement action taken by OSM, i.e., seeking injunctive
relief through the DOJ, satisfied OSM’s obligations to the
Conservancy as a citizen complainant. Second, the Assistant
Director decided that the Conservancy’s request for a second notice
of violation on the basis of LaRosa’s NPDES and CWA violations was
subsumed by the original Notice of Violation and Failure to Abate
Cessation Order issued by the Field Office. Notwithstanding these
findings, the Assistant Director referred the NPDES and CWA issues

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to WVDEP, the state agency responsible for NPDES and CWA
compliance.
The Conservancy appealed the decision of the Assistant
Director to the Board. The Board, acting on behalf of the
Secretary, affirmed the decision for slightly different reasons
than those espoused by the Assistant Director. The Conservancy
then filed this action against the Secretary, petitioning the
district court for review of the Board’s decision. The district
court granted summary judgment in favor of the Secretary, and the
Conservancy timely appealed to this Court.
II
We review the decision of the district court de novo. Dixon
v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002). Pursuant to the
Administrative Procedure Act (“APA”), we will affirm an agency
decision unless it was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). Further, the APA mandates that we afford substantial
deference to an agency’s interpretation of its own regulations.
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). We
will not reverse any agency determination unless it is plainly
erroneous or inconsistent with the regulation being interpreted.
Id. In reviewing the Board’s decision, we address in turn the two

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issues initially raised by the Conservancy in its request for
informal review submitted to the Assistant Director.
A.
The first issue raised in the Conservancy’s request for
informal review is whether seeking injunctive relief through the
DOJ was sufficient to satisfy the statutory and regulatory
obligations placed on OSM. The Federal Regulations require OSM to
pursue appropriate enforcement action if a violation continues more
than 30 days after a notice of violation or a cessation order. 30
C.F.R. § 845.15(b)(2). Such appropriate enforcement action must be
either a fine up to $10,000 or imprisonment up to 1 year;
revocation of relevant permits; or a request to the DOJ for an
action seeking injunctive relief. Id. Though OSM sought
injunctive relief through the DOJ, the Conservancy argues that OSM
is required to pursue every alternative enforcement action until
abatement occurs.
However, the Conservancy ignores an essential predicate to OSM
taking any enforcement action whatsoever. Specifically,
§ 845.15(b)(2) presupposes that OSM properly issued a notice of
violation or a cessation order. Of course, OSM cannot properly
issue a notice of violation or a cessation order without
jurisdiction over the alleged violator. Thus, if OSM did not have
jurisdiction to issue the original Notice of Violation and Failure

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to Abate Cessation Order, it also necessarily lacks jurisdiction to
take any enforcement action with respect to LaRosa’s alleged
violations.
We hold that the issue of the adequacy of the enforcement
action pursued by OSM is not ripe for review. “Ripeness depends on
‘the fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration.’” Bituminous
Coal Operators’ Ass’n v. Secretary of the Interior, 547 F.2d 240,
244 (4th Cir. 1977) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,
149 (1967)). A necessary element of fitness for judicial decision
is the finality of the agency decision below. West Virginia
Highlands Conservancy, Inc. v. Babbitt, 161 F.3d 797, 800 (4th Cir.
1998). Such an agency decision must not be contingent upon a
future uncertainty or intervening agency ruling. Id.
The issue of whether OSM should have pursued alternative
enforcement action against LaRosa is plainly contingent upon a
currently undecided matter. LaRosa’s applications for review of
the jurisdictional bases for the Notice of Violation and Failure to
Abate Cessation Order were still pending at the time the Board
issued its decision. Furthermore, according to counsel for the
Conservancy at oral argument, LaRosa continues to contest the Field
Office’s jurisdiction over the mine. If an appropriate agency body
determines that the Field Office lacked jurisdiction to issue the
original Notice of Violation and Failure to Abate Cessation Order,

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3Although the district court’s order only briefly addressed
it, this issue was implicitly resolved against the Conservancy when
the district court granted summary judgment entirely in favor of
the Secretary. Further, because the Assistant Director referred
this matter to state authorities, OSM’s jurisdiction is not at
issue. Thus, this issue is ripe for our review.
9
then OSM’s jurisdiction to pursue any enforcement action –-
alternative or otherwise –- does not exist. Thus, the outcome of
LaRosa’s ongoing jurisdictional challenge before the hearings
division could make the decision of the Board advisory. Therefore,
the agency decision below is not final, and the outcome of the
jurisdictional dispute could effectively moot the controversy
before this Court. Accordingly, the matter is not ripe for our
review.
B.
The second issue raised in the Conservancy’s request for
informal review is whether additional alleged violations
necessitated OSM’s issuing another notice of violation to LaRosa.3
The Conservancy noted two additional grounds that it believed
warranted a second notice of violation: (1) LaRosa’s failure to
maintain a NPDES permit, as required by section 402 of the CWA, 33
U.S.C. § 1342; and (2) LaRosa’s failure to monitor and report
ongoing water discharges in violation of section 308 of the CWA, 33
U.S.C. § 1318. Though the Assistant Director believed these
violations were “effectively subsumed under” the original Notice of

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Violation discussed above, he nonetheless referred the alleged
additional violations to WVDEP, which administers NPDES compliance
in West Virginia. J.A. 61. The Board concluded that the
additional allegations made by the Conservancy, if true, were not
subsumed by the original Notice of Violation. However, because the
Board expressed uncertainty as to whether LaRosa had complied with
the relevant NPDES and CWA requirements, it affirmed the Assistant
Director’s decision to refer the matter to WVDEP.
On appeal, neither party contests the assumptions of the
Assistant Director and the Board that WVDEP oversaw these aspects
of NPDES and CWA compliance in West Virginia. Because WVDEP
administered these programs, neither the Assistant Director nor the
Board was in a position to determine whether LaRosa had complied
with the relevant regulations. Therefore, we hold that the Board’s
decision to affirm the Assistant Director’s referral to the
appropriate state authorities is not “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
III
Accordingly, we affirm summary judgment on the issue relating
to referral of the NPDES and CWA violations to WVDEP. However, we
vacate summary judgment on the issue relating to OSM’s pursuit of
appropriate enforcement action against LaRosa, and we remand the

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case to the district court with instructions to dismiss this claim
because it is not ripe for review.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART

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