CHARLES H. HADEN II, United States District Chief Judge
Pending are (1) the Arch Coal subsidiaries' motion to dismiss Counts 1, 3, 4, 12 13; (2) the Arch Coal subsidiaries' motion to dismiss the claims of Patricia Bragg and injunctive relief claims which target individual permits or permit applications; and (3) Defendant Michael Miano's motion to dismiss. The matters are ripe for review.
Pending also are (1) motion to adopt all motions which are favorable to the West Virginia Mining and Reclamation Association and West Virginia Coal Association ("Associations"); (2) motion to exceed page limit for memoranda filed by the Arch Coal subsidiaries; and (3) motion to exceed page limit for memoranda filed by Plaintiffs. After careful consideration, the Court GRANTS each of these three motions.
Pending also is Plaintiffs' motion for leave to file a surreply. After careful consideration, the Court DENIES the motion.
The Court does not address Miano's argument the case must be dismissed for failure to join indispensable parties, which ground was withdrawn in his reply memorandum.
I. FACTUAL BACKGROUND
On July 16, 1998 Plaintiffs filed this civil action seeking declaratory and injunctive relief, as well as fees and costs, under the citizen suit provision of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. § 1270(a). They named as Defendants Colonel Dana Robertson, District Engineer; Lieutenant Joe Ballard, Chief of Engineers and Commander; Michael Gheen, Chief of the Regulatory Branch, Operations and Readiness Division; and their employer, the United States Army Corps of Engineers. Plaintiffs also named as Defendant Michael Miano, Director of the West Virginia Division of Environmental Protection.
In Counts One through Ten, Plaintiffs sued Miano, alleging a pattern and practice of his violating mandatory non-discretionary duties under SMCRA and the West Virginia state regulatory program approved under that statute.
In Counts Eleven though Thirteen, Plaintiffs sued the United States Corps of Engineers ("the Corps," "Corps") officials, alleging a pattern and practice of failing to carry out their statutory duties under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), the Clean Water Act, 33 U.S.C. § 1344 ("CWA"), and the Administrative Procedure Act, 5 U.S.C. § 553, 706(2)(A) ("APA"). Plaintiffs allege it is beyond the Corps' jurisdiction under the CWA to regulate valley fills created for the disposal of waste material, or that the Corps has violated NEPA by issuing Nationwide Permits ("NWP") without the required analysis, and that it is unlawful for the Corps to issue NWPs 21 and/or 26 for surface mining valley fills in West Virginia.
II. DISCUSSION
A. Standard for Rule 12(b)(6) Motions
Our Court of Appeals has often stated the settled standard governing the disposition of a motion to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure:
In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.
Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993),
cert. denied, 510 U.S. 1197 (1994) (citations omitted);
see also Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996);
Gardner v. E.I.Dupont De Nemours and Co., 939 F. Supp. 471, 475 (S.D. W. Va. 1996).
It is through this analytical prism the Court evaluates Defendants' motion.
B. Eleventh Amendment 1. Ex parte Young
Defendant Miano argues all claims against him should be dismissed because he, as the official in a state agency, is immune from suit by virtue of the Eleventh Amendment. "The sovereign immunity embodied in the Eleventh Amendment protects an unconsenting state against suit brought by private parties in federal court." CSX Trans., Inc. v. Bd. of Public Works, 138 F.3d 537, 539-40 (4th Cir. 1998) (citing Seminole Tribe v. Florida, 517 U.S. 44, 52-54 (1996)), petition for cert. filed, 66 U.S.L.W. 3791 (U.S. June 8, 1998) (No. 97-1981).
Congress may abrogate the immunity "by a clear expression of legislative intent to abrogate enacted pursuant to a valid exercise of power." CSX Trans., Inc. v. Bd. of Public Works, 138 F.3d 537, 539-40 (4th Cir. 1998), petition for cert. filed, 66 U.S.L.W. 3791 (U.S. June 8, 1998) (No. 97-1981). After the Supreme Court's decision in Seminole Tribe, an abrogation is effective only if it is based upon Congress' power in Section Five of the Fourteenth Amendment. Id. This principle does not affect the Court's decision in this matter, which turns on a well-established exception to the Eleventh Amendment immunity and construction of the SMCRA statute itself.
Here, the Court need only address the application of a well-established, narrow exception to the Eleventh Amendment, Ex parte Young. This doctrine is available when a plaintiff seeks prospective injunctive relief against a State official for continuing violations of federal law. The Supreme Court has indicated the exception applies only in situations in which Congress intended to authorize its availability because the cause of action has a limited remedial scheme. See Seminole Tribe, 517 U.S. at 73-76; see also Lynn v. West, 134 F.3d 582, 587-88 (4th Cir. 1998), petition for cert. filed, 66 U.S.L.W. 3750 (U.S. May 11, 1998) (No. 97-1829) (applying the Ex parte Young exception).
Because Plaintiffs have sued Miano in his official capacity as a State official and seek only prospective, injunctive relief, the Court turns to whether Congress intended Young to be available for citizen suits under SMCRA. It is clear Congress intended SMCRA citizen suits to be available to the full extent of the Eleventh Amendment. The citizen suit provision states:
Except as provided in subsection (b) of this section,
any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter —
(2) against the Secretary or the appropriate State regulatory authority to the extent permitted by the eleventh amendment to the Constitution . . .
30 U.S.C.A. § 1270(a) (West 1998). Congress intended SMCRA to "assure . . . public participation in the . . . enforcement of regulations, standards, reclamation plans, or programs established by the Secretary or any State under this Act."
Id. § 1202(i). Similarly, "citizen involvement in all phases of the regulatory scheme will help insure that the decisions and actions of the regulatory authority are grounded upon complete and full information." H.R. Rep. No. 95-218, 95th Cong., 1st sess. 88-89,
reprinted in 1977 U.S.C.C.A.N. 593, 625.
Based on the inclusion of the citizen suit provision as an integral part of a statute with a limited remedial scheme, it is reasonable to conclude Congress implicitly authorized citizens to bring suit under theEx Parte Young exception. Natural Resources Defense Council v. Cal. Dep't of Transp., 96 F.3d 420, 423-24 (9th Cir. 1996) (post-Seminole Tribe; Clean Water Act); see also Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1482-83 (10th Cir. 1995) (pre-Seminole Tribe; SMCRA). Accordingly, Miano's motion to dismiss is DENIED on this ground.
Miano argues in his reply brief that Congress provided a detailed remedial scheme, comparable to that in Seminole Tribe, such that the Ex Parte Young exception does not apply. The remedial scheme to which he refers is that created in the regulations giving OSM the authority to evaluate WVDEP's administration of SMCRA and to take steps to withdraw approval of a state program for serious failure and inability to administer the program properly. As an initial matter, the Court notesSeminole Tribe referred particularly to a "detailed remedial scheme for the enforcement against a State of a statutorily created right" rather than simply a remedial scheme of any type. After careful consideration, the Court finds the process through which OSM may exercise oversight over WVDEP is not the type of detailed remedial scheme which suspends the Court's ability to hear the case.
2. Alleged Violations of Federal Law
Miano next argues Plaintiffs allege violations of state law by a State official, which claim is barred by the Eleventh Amendment.See Martin Sales Processing, Inc. v. W. Va. Dep't of Energy, 815 F. Supp. 940, 943 n. 1 (S.D. W. Va. 1993). Miano contends his mandatory non-discretionary duties are based entirely in state law, i.e., the WVSMCPA and its state regulations.
Miano's argument focuses on only one portion of the entire regulatory scheme. Plaintiffs seek to enforce Miano's "failure . . . to perform any act or duty under this chapter which is not discretionary . . . with the appropriate State regulatory authority." 30 U.S.C. § 1270(a)(2) (emphasis added). Miano correctly recognizes the specific duties that Plaintiffs allege are being violated appear in the WVSMCRA and state regulations. The language and structure of the SMCRA demonstrate, however, that these duties under an approved State program, such as West Virginia's, are incorporated into federal law.
The federal SMCRA created "a program of cooperative federalism that allows States, within limits established by federal minimum standards, to enact and administer their own regulatory program" which "mandat[es] compliance with the full panoply of federal performance standards, with enforcement responsibility lying with either the State or Federal Government." Hodel v. Virginia Surface Mining Reclamation Ass'n, 452 U.S. 264, 268-69 (1981) (emphasis added). Under "cooperative federalism," a state may become the "State regulatory authority," which is the agency with the "primary responsibility at the State level for administering this chapter." 30 U.S.C. § 1253, 1291(26) (emphasis added). All parties agree WVDEP has become such a State regulatory authority, and Miano, as its director, is responsible for administering the SMCRA in West Virginia.
As a part of this administration and enforcement plan, federal law incorporates all provisions of an approved State program. See 30 C.F.R. § 733.11 (1997) ("States with an approved State program shall implement, administer, enforce and maintain it in accordance with the Act, this chapter and the provisions of the approved State program."), 900.11-12 (stating that upon approval of the State regulatory program, the program is "codified" in a Part of the Code of Federal Regulations reserved for that state). The Supreme Court has recognized a similar incorporation feature. See Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992) (Clean Water Act) ("This regulation effectively incorporates into federal law those state-law standards the Agency reasonably determines to be `applicable.' In such a situation, then, state water quality standards — promulgated by the States with substantial guidance from the EPA and approved by the Agency — are part of the federal law of water pollution control.") See also Molinary v. Powell Mountain Coal Co., Inc., 125 F.3d 231, 234-37 (4th Cir. 1997) (upholding OSM's construction that state-promulgated regulations comprising a federally-approved State program under SMCRA are "issued pursuant to" SMCRA and can be the basis for a citizen suit filed under SMCRA), cert. denied, ___ U.S. ___, 118 S.Ct. 1056 (1998). Taking into account the entire SMCRA format, Plaintiffs properly allege violations of federal law, which allegations do not offend the Eleventh Amendment. Accordingly, the Court DENIES Miano's motion to dismiss on this ground.
Miano argues Molinary is not applicable because it construed Section 1270(f) rather than Section 1270(a). Although the Molinary claim was brought under Section 1270(f), the Fourth Circuit's discussion specifically harmonizes Section 1270(f) with Section 1270(a)(1), 125 F.3d at 236, and would similarly support the Court's construction of Section 1270(a)(2).
C. Exhaustion of State Remedies
The Supreme Court has outlined the analysis to be used in determining whether Plaintiffs must exhaust administrative remedies:
The doctrine of exhaustion of administrative remedies is one among related doctrines . . . that govern the timing of federal court decisionmaking. of "paramount importance" to any exhaustion inquiry is congressional intent. Where Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs. . . . Nevertheless even in this field of judicial discretion, appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be heard in federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme.
This Court has long acknowledged the general rule that parties exhaust prescribed administrative remedies before seeking relief from the federal courts. Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.
McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992).
See also Volvo GM Heavy Truck Corp. v. United States Department of Labor, 118 F.3d 205, 208-09 (4th Cir. 1997) (reviewing
McCarthy and Darby v. Cisneros, 509 U.S. 137 (1993));
Barnes v. Int'l Amateur Athletic Fed., 862 F. Supp. 1537, 1542-43 (S.D. W. Va. 1993) (Copenhaver, J.) (reviewing
McCarthy). Administrative review allows an agency to correct its own mistakes, avoids unnecessary encumbrances of limited judicial resources, and prevents piecemeal litigation.
McCarthy, 503 U.S. at 145. "`In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion."'
Volvo, 118 F.3d at 209 (quoting
McCarthy, 503 U.S. at 146) (citing also
Bowen v. City of New York, 476 U.S. 467, 484, 106 S.Ct. 2022, 2032, 90 L.Ed.2d 462 (1986) ("application of exhaustion doctrine is `intensely practical'. . . . The ultimate decision of whether to waive exhaustion . . . should be guided by the policies underlying the exhaustion requirement.")).
Miano and the Arch Coal subsidiaries each argue the suit must be dismissed because Plaintiffs failed to exhaust their state remedies. Both arguments turn on the application of Section 1276(e), which states:
Action of the State regulatory authority pursuant to an approved State program shall be subject to judicial review by a court of competent jurisdiction in accordance with State law, but the availability of such review shall not be construed to limit the operation of the rights established in section 1270 of this title except as provided therein.
30 U.S.C.A. § 1276. Section 1270,
the citizen suit provision under which Plaintiffs proceed, requires written notice of the violation be given sixty days before the complaint is filed.
Section 1270 states in relevant part:
(b) Limitation on bringing of action. No action may be commenced — (1) under subsection (a)(1) of this section —
(A) prior to sixty days after the plaintiff has given notice in writing of the violation (i) to the Secretary, (ii) to the State in which the violation occurs, and (iii) to any alleged violator; or
(B) if the Secretary or the State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the provisions of this chapter, or any rule, regulation, order, or permit issued pursuant to this chapter, but in any such action in a court of the United States any person may intervene as a matter of right; or
(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice in writing of such action to the Secretary, in such manner as the Secretary shall by regulation prescribe, or to the appropriate State regulatory authority, except that such action may be brought immediately after such notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
In Section 1276(e), Congress has not specifically mandated exhaustion of administrative remedies for citizen suits. Instead, the provision explicitly states the availability of administrative remedies "shall not be construed to limit the operation" of the citizen suit provision. The only fair construction of this language is that it carves out an exception to the normal exhaustion requirement.
The Court restricts its inquiry to whether an exhaustion requirement applies to a citizen suit and does not address other suits arising under SMCRA. See Mullins Coal Co. v. Clark, 759 F.2d 1142, 1146 (4th Cir. 1985) (noting exhaustion is generally required in SMCRA suits but not discussing citizen suits).
The Arch Coal subsidiaries argue "a plain reading" of the language suggests only that the availability of judicial review does not preempt a citizen suit in federal court. Reply of Permittee Intervenors Supp. Mot. to Dismiss Claims of Patricia Bragg at 3 (citing Robert E. Beck, The Current Effort in Congress to Amend the Surface Mining Control and Reclamation Act of 1977), 8 Fordham Envtl. L. J. 607, 623 (1997)). Notably, the subsidiaries offer only a few vague, conclusory paragraphs from the Beck article to support the argument. The Court finds no compelling basis for the proposition.
Because Congress has not specifically mandated exhaustion, the question lies within the sound discretion of the Court. In exercising its discretion, the Court must consider congressional intent and the basic statutory scheme at issue. Weighing these elements, as well as consideration for allegations of a pattern and practice of violations, the Court holds Plaintiffs need not exhaust administrative remedies before pursuing this civil action.
Besides noting the only fair construction of the statutory language at issue, see supra, the Court recognizes Congress provided the citizen suit vehicle in addition to the more traditional judicial review of agency action. Congress provided this remedy not simply to offer affected citizens a vehicle for relief, but also to supplement regulation by government agencies that have limited budgets, with regulation by those with a significant incentive to regulate, the affected citizens. See H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 88-89, reprinted in 1977 U.S.C.C.A.N. 593, 625 ("The success or failure of a national coal surface mining regulation program will depend, to a significant extent, on the role played by citizens in the regulatory process. The State or Department of Interior can employ only so many inspectors, only a limited number of inspections can be made on a regular basis and only a limited amount of information can be required in a permit or bond release application or elicited at a hearing. . . . While citizen participation is not, and cannot be, a substitute for governmental authority, citizen involvement in all phases of the regulatory scheme will help insure that the decisions and actions of the regulatory authority are grounded upon complete and full information.").
Furthermore, the Court finds the congressional intent expressed in legislative history does not contradict the only fair construction of Section 1276(e)'s language. As is to be expected when parsing congressional intent, each side argues the legislative history supports its argument. After careful consideration, the Court finds Congress did not intend to require exhaustion of administrative review before citizen suits could be filed.
First, Congress rejected a substitute bill that removed the Section 1276(e) language. As Plaintiffs illuminate, several congressmen and the Department of the Interior disagreed with the citizen suit provision in the 1974 bill, which is substantially similar to the enacted language.See H.R. Rep. No. 93-1072, 93rd Cong., 2d Sess. 28, Ex. 1, Pls.' Resp. to Miano's Mot. Dismiss; id. at 224 (dissenting committee members' objection that citizen suit is available "on top of the judicial review provisions" and "in addition to all other existing remedies"). The dissenting congressmen failed in their attempt to pass a substitute bill that would have eliminated the language of Section 1276(e). See id. at 199-239; 120 Cong. Rec. 24080-81 (July 17, 1974).
Second, Congress specifically amended language in Section 1270 to prevent collateral attacks on the permit filed against the operator, but did not prohibit such attacks filed against a governing agency. See H.R. Rep. No. 95-218 at 67 (1977), reprinted in 1977 U.S.C.C.A.N. 593, 606; Ex. 1, Arch Coal subsidiaries' Reply to Mot. Dismiss Braggs' Claims. Comparing the earlier language to the enacted language reveals Congress' clear intent, expressed in the House Report to H.R. 2, id., to prevent collateral permit attacks filed against operators. What can be inferred, therefore, is that Congress contemplated and did not object to collateral attacks on permits filed against a governing agency, as is done here.
Finally, the Court recognizes that, contrary to Defendants' characterizations, Plaintiffs are not challenging one or more particular permits or permit applications. Instead, Plaintiffs allege agencies have engaged in a pattern and practice of violations. If Plaintiffs were required to challenge each permit or permit application through the appropriate avenues of administrative review, such an allegation would be extremely difficult, if not impossible, to bring to the attention of the Courts. This result would impermissibly burden the right of action Congress has provided to aggrieved citizens.
Accordingly, the Court holds Plaintiffs need not exhaust administrative remedies before filing a citizen suit complaint alleging agencies have engaged in a pattern and practice of violations. Accordingly, the Court DENIES Miano's and the Arch Coal subsidiaries' motions to dismiss on this ground.
D. Lack of Jurisdiction to Challenge Existing Permit Applications
The Arch Coal subsidiaries argue the Court lacks jurisdiction over those claims which seek injunctive relief with respect to existing surface permit applications. Specifically, Plaintiffs seek an order directing Miano "to withhold approval of permit applications for surface coal mining and reclamation operations that include proposed valley fills in waters of the United States and the State unless and until" nine events occur. Complaint at 45-47 ¶ L. The subsidiaries argue Plaintiffs impermissibly seek this relief with respect to any permits WVDEP considers ready to issue because Plaintiffs have adequate administrative remedies for objecting to particular permit decisions, which they have not exhausted. Plaintiffs did not respond.
After careful consideration, the Court finds it could issue such relief at least as to future permit applications. Accordingly, the Court DENIES the Arch Coal subsidiaries' motion to dismiss as it relates to future permit applications.
The more difficult question is whether such injunction could apply to pending permit applications, a question Plaintiffs have not addressed. Because the Court's inherent equitable powers allow it to issue an injunction, at least as to future applications, the Court withholds decision at this time as to pending applications.
E. Plaintiff Bragg
The Arch Coal subsidiaries challenge Plaintiff Bragg's standing to sue because she alleges injuries by permits already issued, but she seeks only declaratory and injunctive relief. Plaintiffs argue standing need not be established for every plaintiff so long as one properly has standing and Bragg has alleged sufficient facts for standing.
Our Court of Appeals has recently restated the analysis for a challenge to a plaintiff's standing:
The Constitution provides that "[t]he judicial Power" of the federal courts of the United States extends only to specified "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1;
see In re Pruett,
133 F.3d 275, 278 (4th Cir. 1997). "The doctrine of standing has always been an essential component of [the] case or controversy requirement of federal jurisdiction."
Marshall v. Meadows,
105 F.3d 904, 906 (4th Cir. 1997). In order to have standing, a plaintiff must have suffered an actual or threatened injury in fact; the injury must have been caused by the defendant's complained-of conduct; and the injury must be redressable by the relief sought.
See Steel Co. v. Citizens for a Better Env't,
___ U.S. ___, ___ — ___,
118 S.Ct. 1003, 1016-17,
140 L.Ed.2d 210 (1998). Moreover, these elements must continue to exist at every stage of review, not merely at the time of the filing of the complaint.
See Arizonans for Official English v. Arizona,
520 U.S. 43,
117 S.Ct. 1055, 1068,
137 L.Ed.2d 170 (1997);
Suarez Corp. Indus. v. McGraw,
125 F.3d 222, 228 (4th Cir. 1997). . . . The continued presence of these elements ensures that the plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues."
Baker v. Carr,
369 U.S. 186, 204,
82 S.Ct. 691,
7 L.Ed.2d 663 (1962).
Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 149 F.3d 303, 306 (4th Cir. 1998).
Here, Bragg alleges she owns and lives in a home on Nighway Branch in Mingo County, West Virginia. She uses Nighway Branch, a perennial stream, for recreational and domestic purposes. Bragg alleges the stream will be disturbed by valleys fills associated with two permits that have already been issued.
The subsidiaries argue the Complaint does not request any relief with respect to either of these two permits nor claim she will suffer harm by any other action of the Defendants. Plaintiffs seek injunctive relief for a pattern and practice of violations that, Plaintiffs contend, survives a standing challenge based on redressability. In Steel Co., the Supreme Court addressed the situation in which plaintiffs seek injunctive relief for past harms, stating:
The latter objective [deterring defendant from future violations] can of course be "remedial" for Article III purposes, when threatened injury is one of the gravamens of the complaint. If respondent had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested would remedy that alleged harm. But there is no such allegation here — and on the facts of the case, there seems no basis for it. Nothing supports the requested injunctive relief except respondent's generalized interest in deterrence, which is insufficient for purposes of Article III.
See Los Angeles v. Lyons, 461 U.S., at 111, 103 S.Ct., at 1670.
Steel Co., ___ U.S. at ___,
118 S.Ct. at 1019. Here, Plaintiffs have stated a continuing violation that, under
Steel Co., is sufficient to satisfy the redressability requirement. Accordingly, the Court
DENIES the Arch Coal subsidiaries' motion on this ground.
F. Statute of Limitations
Alternatively, the Court notes substantial Supreme Court precedent that a court need not address questions of standing regarding one plaintiff so long as standing exists for other plaintiffs. See, e.g., Secretary of Interior v. California, 464 U.S. 312, 318 n. 3 (1984); Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 299 n. 11 (1979); Baldwin v. Fish Game Comm'n. of Montana, 436 U.S. 371, 377 n. 14 (1978);Scott v. U.S., 436 U.S. 128, 135 n. 10 (1978); Carey v. Population Services International, 431 U.S. 678, 682 (1977); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 263-64 n. 9 (1977);Planned Parenthood v. Danforth, 428 U.S. 52, 62-63 n. 2 (1976); Doe v. Bolton, 410 U.S. 179, 189 (1973); Westchester Women's Health Organization v. Whalen, 475 F. Supp. 734, 737 (S.D.N.Y. 1979).
The subsidiaries do not challenge the standing of any other plaintiff, but argue the costs and attorneys fees sought in this case require the Court to address the standing of any challenged plaintiff. See Women's Med. Center v. Roberts, 512 F. Supp. 316, 319 (D.R.I. 1981). In the absence of controlling precedent otherwise, the Court holds the prohibition against unnecessarily reaching constitutional issues prevents the Court from addressing Bragg's standing.
The Arch Coal subsidiaries argue Count 13 is barred by the statute of limitations because in order to succeed, Plaintiffs must challenge the EPA's 1988 Policy, which is an interpretative rule. Such challenges, they argue, must be asserted within six years of the rule's issuance. In turn, Plaintiffs argue the Count does not depend upon a challenge to the EPA policy. As an initial matter, the Court notes that Count 13 does not state a facial challenge to the EPA's 1988 Policy. Thus, even if Count 13 involves a substantive challenge to the 1988 Policy, the six-year term would not begin to accrue on the regulation's issuance, but when the regulation was applied to the challenger. Florida Keys Citizen Coalition v. West, 996 F. Supp. 1254, 1256 (S.D. Fla. 1998); Dunn-McCampbell Royalty v. Nat'l Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997). To determine when the statute of limitations commenced to run, the Court must resolve a factual issue, which is not ripe for disposition at this time. Accordingly, the Court DENIES the subsidiaries' motion on this ground.
G. Arguments Regarding Counts 1, 3, 4 and 12
The Arch Coal subsidiaries raise various arguments that Counts 1, 3, 4 and 12 cannot be maintained under the state of the law. After careful consideration, the Court DENIES the Arch Coal subsidiaries' motion on these grounds.
III. CONCLUSION
Accordingly, the Court GRANTS the Associations' motion to adopt all favorable motions; GRANTS Arch Coal subsidiaries' motion to exceed page limit; GRANTS Plaintiffs' motion to exceed page limit; DENIES Plaintiffs' motion for leave to file surreply; DENIES the Arch Coal subsidiaries' motion to dismiss Counts 1, 3, 4, 12 and 13; DENIES the subsidiaries' motion to dismiss the claims of Patricia Bragg and injunctive relief claims which target individual permits or permit applications; and DENIES Defendant Miano's motion to dismiss.
The Clerk is directed to send a copy of this Memorandum Opinion and Order to all counsel of record.