Alabama citizens can now challenge decisions by the Alabama Surface Mining Commission without risking financial ruin. Thanks to the settlement of a lawsuit filed by Black Warrior Riverkeeper, Alabamans will no longer risk the imposition of attorneys’ fees and costs when exercising their rights under the federal Surface Mining Control and Reclamation Act of 1977 (SMCRA).
SMCRA grants American citizens broad rights when a mining permit is considered or issued, including rights to examine the mining site, to initiate a formal hearing on the merits of the decision, and to have that decision judicially reviewed. A citizen may participate in inspections of mine property if there is believed to be imminent harm to the environment or the public, may file a complaint about blasting, challenge an agency’s failure to take proper enforcement action, and appeal any adverse decision to the courts.
Before this settlement, the Mining Commission’s regulations authorized itself or a coal-mining operator to recover attorneys’ fees and costs from a citizen challenging a regulatory decision, even when the challenge was meritorious and in good faith. This punitive regulation violated federal law and for the past 40 years discouraged citizens from challenging the commission’s regulatory decisions. Although the commission had not previously required such payments, citizens were inhibited by the possibility that it could do so, in the face of such cases as Shepherd Bend, LLC’s seeking compensation for $250,000 in attorneys’ fees and costs from the Birmingham Water Works Board when it challenged a permit that authorized coal-mining adjacent to and upstream of one of Birmingham’s primary drinking-water intakes. Rights provided by Congress for citizens to play a vital role in the implementation of the nation’s mining laws mean little when a fear of fees prevents their exercise.
Black Warrior Riverkeeper requested that the federal Office of Surface Mining, Reclamation and Enforcement (OSMRE) require the Alabama Surface Mining Commission to amend its regulation to comply with federal law, as OSMRE had done in Utah, Alaska and New Mexico. When OSMRE did not, Black Warrior Riverkeeper filed a suit against OSMRE and the state’s Surface Mining Commission in July 2015. As a result of the suit, the commission amended their regulation to state explicitly that challenging citizens could be liable for attorneys’ fees and costs only if their challenge is in bad faith. That regulation was approved by OSMRE on October 26, 2016.
Attorney Clay Ragsdale, who represents private individuals in such challenges, worked with Black Warrior Riverkeeper’s staff attorney, Eva Dillard, on the suit.
“Coalfield citizens in Alabama,” said Dillard, “can now exercise the full- participation rights and oversight responsibilities that Congress provided them in the Surface Mining Control and Reclamation Act, without the chilling effect of a fee award.”