                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2002

PA Fedr Sportsmens v. Seif
Precedential or Non-Precedential: Precedential

Docket No. 00-2139




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PRECEDENTIAL

       Filed July 24, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-2139 and 01-1683

PENNSYLVANIA FEDERATION OF SPORTSMEN’S CLUBS,
INC.; PENNSYLVANIA CHAPTER SIERRA CLUB;
PENNSYLVANIA TROUT, INC.; TRI-STATE CITIZENS
MINING NETWORK; MOUNTAIN WATERSHED
ASSOCIATION, INC.
       Appellants in 01-1683

v.

*DAVID E. HESS, Individually and as Secretary,
Pennsylvania Department of Environmental Protection;
*GALE A. NORTON, Secretary, United States Department
of the Interior; *JEFFREY D. JARRETT, Director, Office of
Surface Mining Reclamation and Enforcement

PENNSYLVANIA COAL ASSOCIATION;
PENNSYLVANIA ANTHRACITE COUNCIL; ARIPPA,
       Intervenors in D.C.

*David E. Hess,
       Appellant in 00-2139

*Pursuant to F.R.A.P. 43(c)

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Civil. No. 99-cv-01791
District Judge: The Honorable Sylvia H. Rambo

Argued April 8, 2002




Before: McKEE, BARRY, and ALARCON,*
Circuit Judges

(Opinion Filed: July 24, 2002)

       Dennis Whitaker, Esq. (Argued)
       Department of Environmental
        Protection
       909 Elmerton Avenue, 3rd Floor
       Harrisburg, PA 17110

       Attorney for Appellant

       Kurt J. Weist, Esq. (Argued)
       PennFuture
       610 North Third Street
       Harrisburg, PA 17101

       Attorney for Pennsylvania Federation,
       et al.

       John T. Stahr, Esq. (Argued)
       United States Department of Justice
       Environment & Natural Resources
        Division
       P.O. Box 23795
       L’Enfant Plaza Station
       Washington, D.C. 20026
       Attorney for Secretary of Interior,
       etc., et al.

OPINION OF THE COURT

BARRY, Circuit Judge:

The central question we must answer, a question
heretofore answered by only one other court of appeals, is
whether the Eleventh Amendment bars suit in federal court
against a state official where what is at issue is that
_________________________________________________________________

* The Honorable Arthur L. Alarcon, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.

                                2


official’s purported failure to implement, administer,
enforce, and maintain a federally approved state coal
mining program. We find that it does and, thus, will affirm
in part and reverse in part the orders of the District Court.

I.

INTRODUCTION

The two appeals now before us stem from a complaint
filed under the Surface Mining Control and Reclamation Act
of 1977 ("SMCRA"), 30 U.S.C. S 1201-1328 (1988 & Supp.
IV 1993), by five non-profit sporting and environmental
organizations -- the Pennsylvania Federation of
Sportsmen’s Clubs, Inc.; the Pennsylvania Chapter Sierra
Club; Pennsylvania Trout, Inc.; Tri-State Citizens Mining
Network; and the Mountain Watershed Association, Inc.
("plaintiffs"). More specifically, plaintiffs filed suit under
Section 520 of SMCRA, 30 U.S.C. S 1270, which permits
citizens suits to be commenced in federal district court by
"any person" against, as relevant here, a"State regulatory
authority to the extent permitted by the eleventh
amendment to the Constitution." S 1270(a)(2).1 Jurisdiction
_________________________________________________________________

1. Section 1270(a) reads in full:

       S 1270. Citizens suits
       (a) Civil action to compel compliance with this chapter

       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 --

       (1) against the United States or any other governmental
       instrumentality or agency to the extent permitted by the eleventh
       amendment to the Constitution which is alleged to be in violation
       of the provisions of this chapter or of any rule, regulation, order
       or permit issued pursuant thereto, or against any other person
       who is alleged to be in violation of any rule, regulation, order or
       permit issued pursuant to this subchapter; or

       (2) against the Secretary or the appropriate State regulatory
       authority to the extent permitted by the eleventh amendment to

                                3


was also invoked under 28 U.S.C. SS 1331 and 1361.
Defendants in this action for declaratory and injunctive
relief are James M. Seif, Secretary, Pennsylvania
Department of Environmental Protection ("DEP");2 Gale A.
Norton, Secretary, U.S. Department of the Interior; and
Glenda H. Owens, Acting Director, Office of Surface Mining
Reclamation and Enforcement. The Pennsylvania Coal
Association, the Pennsylvania Anthracite Council, and
ARIPPA were permitted to intervene as defendants.

Seif is the sole named defendant in Counts One through
Eight of the eleven-count complaint, the only counts before
us on these appeals. While we will at a later point discuss
these counts in detail, it is sufficient for present purposes
to note that Counts One through Six allege that Seif failed
to perform various nondiscretionary duties in connection
with implementing, administering, enforcing, and
maintaining the approved Pennsylvania surface coal mining
program in accordance with SMCRA, the federal
implementing regulations, and provisions of the approved
Pennsylvania program. Counts Seven and Eight allege
Seif ’s failure to perform a nondiscretionary duty only under
SMCRA and 30 C.F.R. SS 938.16(h) and 732.17(f)(1),
respectively.

Seif moved before the District Court to dismiss Counts
One through Eight on various grounds, including the
ground that they were barred as against him by the
_________________________________________________________________

       the Constitution where there is alleged a failure of the Secretary
       or the appropriate State regulatory authority to perform any act or
       duty under this chapter which is not discretionary with the
       Secretary or with the appropriate State regulatory authority.

       The district courts shall have jurisdiction, without regard to the
       amount in controversy or the citizenship of the parties.

2. Suit was brought against Seif in his official and his individual
capacities. After considering the nature of the relief sought as to him,
i.e., injunctive relief for acts within his official responsibilities, the
District Court treated the claims as properly pursued against him only
in his official capacity. Plaintiffs have not taken issue with this
determination, nor will we. Parenthetically, we will, as do the parties,
continue to refer to "Seif " although he is no longer Secretary of the DEP.

                                4


Eleventh Amendment and that the Ex parte Young
exception to Eleventh Amendment immunity did not apply
because plaintiffs’ claims arose under state law. The
District Court granted that motion as to all counts save
Counts One and Three. Seif appealed the District Court’s
partial denial of his motion to this Court (docketed at 00-
2139) and plaintiffs moved for reconsideration as to Counts
Four, Six, Seven, and Eight of the six dismissed counts.

The District Court treated plaintiffs’ motion for
reconsideration as one under Fed. R. Civ. Proc. 59(e) to
alter or amend the judgment, and we stayed Seif ’s appeal
pending resolution of that motion. The District Court
subsequently granted plaintiffs’ motion as to Counts Seven
and Eight, and reinstated those counts, but denied it as to
Counts Four and Six. Seif amended his notice of appeal to
include an appeal from that order; thus, No. 00-2139 is the
appeal from the District Court’s rejection of Eleventh
Amendment immunity for Seif on Counts One, Three,
Seven, and Eight. Denials of Eleventh Amendment
immunity are immediately appealable under the collateral
order doctrine. Puerto Rico Aqueduct and Sewer Authority v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144-47 (1993).

The District Court also granted plaintiffs’ motion as to
Counts Two, Four, Five, and Six to certify for interlocutory
appeal under 28 U.S.C. S 1292(b) the following"controlling
question of law as to which there is a substantial ground
for difference of opinion and [as to which] an immediate
appeal . . . may advance the ultimate termination of the
instant litigation":

       Is Defendant Seif entitled to Eleventh Amendment
       immunity from suit in federal court as to allegations of
       continuing violations of duties under the Pennsylvania
       program when ‘States with an approved State program
       shall implement, administer, enforce and maintain it in
       accordance with the [SMCRA], this chapter and the
       provisions of the approved States program,’ by 30
       C.F.R. S 733.11?

Plaintiffs thereafter successfully moved for permission to
appeal in this Court, with the appeal docketed at No. 01-
1683. Plaintiffs’ appeal and Seif ’s appeal have been

                                5


consolidated for disposition. We review the District Court’s
ruling on Eleventh Amendment immunity de novo. Lavia v.
Pennsylvania Dep’t of Corrections, 224 F.3d 190, 194-95
(3d Cir. 2000).

II.

THE SURFACE MINING CONTROL AND
RECLAMATION ACT

SMCRA, which has been described as providing "a truly
federalist distribution of regulatory authority for the coal-
mining industry,"3 was enacted in 1977 in response to
Congress’s concern over the environmental and societal
costs of surface coal mining operations. Congress
recognized that the expansion of coal mining to meet this
country’s energy needs "makes even more urgent the
establishment of appropriate standards to minimize damage
to the environment and to productivity of the soil and to
protect the health and safety of the public." 30 U.S.C.
S 1201(d). It recognized, as well, that "because of the
diversity, climate, biologic, chemical, and other physical
conditions in areas subject to mining operations, the
primary governmental responsibility for developing,
authorizing, issuing, and enforcing regulations for surface
mining and reclamation operations . . . should rest with the
States." Id. S 1201(f). Thus, SMCRA was intended to ensure
the viability of the surface coal mining industry and to
promote federalism. Hodel v. Virginia Surface Coal Mining &
Reclamation Ass’n., Inc., 452 U.S. 264, 289 (1981). The
Office of Surface Mining Reclamation and Enforcement
("OSM") was established as a subdivision within the
Department of the Interior with the Secretary of the Interior
("Secretary"), acting through the OSM, empowered to
administer the various state programs for controlling
surface coal mining pursuant to the Act. 30 U.S.C.
S 1211(a) and (c). OSM’s regulations promulgated pursuant
to SMCRA are codified at 30 C.F.R. Parts 700-887.15.
_________________________________________________________________

3. In re Permanent Surface Mining Regulation Litig., 617 F.2d 807, 808
(D.C. Cir. 1980).

                                 6


Of critical importance here, SMCRA enables states to
"assume exclusive jurisdiction over the regulation of surface
coal mining and reclamation operations" on non-Federal
and non-Indian lands within the particular state. Id.
S 1253(a) (emphasis added). To achieve this exclusive
jurisdiction, a state must submit to the Secretary a
proposed program "which demonstrates that such State has
the capability of carrying out the provisions of[SMCRA] and
meeting its purposes." Id. The particular state program
must contain state laws which provide for the regulation of
surface coal mining and reclamation operations in
accordance with SMCRA’s requirements. Id.S 1253(a)(1).

The plain language of SMCRA evidences Congress’s intent
to give the states exclusive jurisdiction over the regulation
of surface mining as long as the states enact laws and
regulations that, at minimum, meet the minimum federal
standards, with the federal standards serving only as the
floor and not the ceiling for the state programs. The states
must also demonstrate that they are capable of enforcing
their laws. As we have observed, "[t]here would be no
reason to allow the states to impose their own regulations
if the regulations had to be the same as the federal Act and
regulations." Pennsylvania Coal Association v. Babbitt, 63
F.3d 231, 238 (3d Cir. 1995). Indeed, Congress was well
aware that, at least above the federal minimum, there could
not be a uniform federal standard because of the wide
differences in such things as geology and topography in
areas subject to mining operations in the various states
and the states’ familiarity with local conditions. Thus,
Congress determined that "the primary governmental
responsibility for developing, authorizing, issuing, and
enforcing regulations for surface mining and reclamation
operations . . . should rest with the States." 30 U.S.C.
S 1201(f).

While SMCRA’s purpose was to "assist" the states in
developing a satisfactory program of laws and regulations,
id. at S 1202(g), once that program was developed in a
particular state, and was approved by the Secretary, the
state would be granted "primary governmental
responsibility" for regulating surface coal mining and
reclamation operations. A state which has been granted

                                7


"primacy" by virtue of its approved program for regulating
surface mining would then have "exclusive jurisdiction over
the regulation of surface coal mining" within its borders. Id.
S 1253(a).4 As, most recently, the Court of Appeals for the
Fourth Circuit put it, "[W]hen a State’s program has been
approved by the Secretary of the Interior, we can look only
to State law on matters involving the enforcement of the
minimum national standards." Bragg v. West Virginia Coal
Ass’n, 248 F.3d 275, 295 (4th Cir. 2001), cert. denied, 122
S. Ct. 920 (2002). We, too, have so held. See Haydo v.
Amerikohl Mining, Inc., 830 F.2d 494, 497 (3d Cir. 1987)
("because Pennsylvania’s regulatory plan has been
approved by the Secretary, jurisdiction over the alleged
violations of the state statute and regulations lies
exclusively in the courts of Pennsylvania"); Babbitt, 63 F.3d
at 234 (noting SMCRA’s "mechanism" for according states
"exclusive jurisdiction over regulation"); see also Coteau
Properties Co. v. Dep’t of Interior, 53 F.3d 1466, 1472-73
(8th Cir. 1995) ("Primacy status gives the state‘exclusive
jurisdiction . . . .,’ S 1253(a), and state, not federal,
regulations govern once a state program is approved by
OSM."); National Wildlife Fed. v. Lujan, 928 F.2d 453, 464
n.1 (D.C. Cir. 1991) (Wald, J., concurring); Laurel Pipe Line
Co. v. Bethlehem Mines Corp., 624 F. Supp. 538, 540 (W.D.
Pa. 1986). While certain sections of SMCRA delineate those
minimum standards that a state program must contain
before it may be approved by the Secretary, we held in
Haydo, albeit in the context of a suit under a different
SMCRA provision against an operator and not a state, that
those sections "do not themselves create any rights and
duties." 830 F.2d at 498 (emphasis added); see also
Babbitt, 63 F.3d at 234 ("state program [contains] state
laws") (emphasis added).

SMCRA, then, is geared to the initial development of a
_________________________________________________________________

4. If a state fails to develop its own program, fails to have a submitted
program approved, or has the approval of its program withdrawn
because of ineffective enforcement, the OSM would regulate surface coal
mining and reclamation operations in the state pursuant to a federal
program promulgated and implemented by the Secretary. Id. S 1254(a).
In that event, the Secretary will have "exclusive jurisdiction" over the
regulation and control of surface coal mining in the state.

                                8


state program and state law is geared to the administration
and regulation under that program. In a nutshell, the
Secretary steps back and lets an approved program run.
Bragg was firm on this point: "To make this point
absolutely clear, SMCRA provides explicitly that when
States regulate, they do so exclusively, see id. S 1253(a),
and when the Secretary regulates, he does so exclusively,
see id. S 1254(a)."5Bragg, 248 F.3d at 294. The Bragg
Court went on to hold that private parties could not bring
an Ex parte Young action against state officials to compel
compliance with the surface mining regulation at issue
there because the applicable standards were supplied by
state, and not federal, law. Bragg was the first court of
appeals to do so and, indeed, the first court of appeals to
confront the issue, but more about Bragg later.

Under this arrangement, referred to as "cooperative
federalism," Hodel, 452 U.S. at 289; Bragg, 248 F.3d at
288, the Secretary retains a limited and ordered federal
oversight role to ensure that the minimum requirements of
SMCRA are being satisfied and "to assure that the old
patterns of minimal enforcement are not repeated." H.R.
Rep. No. 218, 95th Cong., 1st Sess. 129 (1977), reprinted in
1977 U.S. Code Cong. & Ad. News 593, 661. The grant of
primacy to a state, however, wholly but "conditionally
divest[s] the federal government of direct regulatory
authority." Bragg, 248 F.3d at 294 (emphasis in original). If,
however, a state fails to implement, enforce, or maintain
part or all of an approved state program, the Secretary,
among other things, can enforce any part not being
enforced and can ultimately withdraw approval of the state
program while promulgating and implementing a federal
program for that state. 30 U.S.C. SS 1254, 1271.6 In the
latter event, the "exclusive jurisdiction" over the regulation
_________________________________________________________________

5. The separate nature of state and federal programs and regulation is
seen throughout SMCRA. See, e.g., 30 U.S.C. SS 1256(a), 1257(a) (each
permit application must be made, and may only be issued, "pursuant to
an approved State program or [a] Federal program"; S 1258(a) (discussing
criteria for reclamation plan submitted "pursuant to any approved State
program or a Federal program").
6. It is the alleged failure of the Secretary and the Director of the OSM
to notify the Pennsylvania DEP of its failures with respect to the
approved Pennsylvania program and their failure to enforce that program
or replace it with a federal program that is the subject of Counts Nine,
Ten, and Eleven of the complaint. These counts, brought under the
citizens suit provisions of SMCRA against the federal officials only, are
not before us on these appeals.

                                9


of surface mining in the state reverts to the Secretary;
absent this withdrawal of approval, the exclusive
jurisdiction to regulate remains with the state with the
state enforcing its own laws. Because of the "independence
of a state administering an approved state program,"
"[d]irect intervention by the Secretary in the operation of
state regulatory programs is clearly intended as an
extraordinary remedy." In re: Permanent Surface Mining
Regulation Litig., 653 F.2d 514, 519 n.7, 520 (D.C. Cir.
1981) (en banc) (citation omitted). "The Secretary’s primary
means of guaranteeing effective state programs," continued
the Court, "lies in his approval function at the beginning of
the process." Id. at 520.

Indeed, this "either-or" arrangement illustrates why, as
the Bragg Court observed, the regulatory structure is not
quite cooperative federalism -- SMCRA does not provide for
shared regulation. Rather, "SMCRA provides for either State
regulation of surface coal mining within its borders or
federal regulation, but not both." Bragg, 248 F.3d at 289.
We, too, have recognized that although state and federal
governments have the potential to exercise jurisdiction over
the regulation of surface coal mining, such jurisdiction is
never shared. Haydo, 830 F.2d at 497 ("nothing in the
statute or the legislative history . . . leads us to believe that
anything other than the ordinary meaning of ‘exclusive’ was
intended by the enactors of the SMCRA").7 Exclusive, in
_________________________________________________________________

7. Plaintiffs, as well as the federal defendants, argue that on this point,
Haydo is at best distinguishable and at worst incorrect. In Haydo, we
affirmed the dismissal on jurisdictional grounds of a federal suit by
citizens against a mining operator. The citizens alleged that as a result
of coal mining on their property by that operator, a well on their property
had run dry. When the operator refused to replace their water supply,
the Haydos filed suit in federal court, alleging violations of state mining
standards issued pursuant to SMCRA, and seeking damages. Id. at 495.

The anti-Haydo argument has two prongs. The first is the suggestion
that, under 30 U.S.C. S 1260(b), it is federal law that precludes a state
regulatory authority from issuing permits that do not comply with a
state’s approved regulations, because a regulatory authority may not
approve a permit application that does not adhere to the regulations of
whichever program (state or federal) governs. This argument, however,
conflates the guidelines for the initial approval of a state program by the

                                10
other words, means just that -- "exclusive." It does not
mean "parallel" or "concurrent."

III.

THE PENNSYLVANIA PROGRAM --
AND PLAINTIFFS’ CHALLENGE

A. The Pennsylvania Program

Pennsylvania chose to develop its own regulatory
program, and the statutory provisions and regulations
subsequently enacted comprehensively regulate, by means
of extraordinarily detailed provisions, every aspect of
surface coal mining and the surface effects of underground
_________________________________________________________________

OSM and the subsequent awards of permits by the state under that
program on the one hand, with the "exclusive" jurisdiction that Haydo
found is expressly granted to a state once those initial criteria are met,
on the other. Most of plaintiffs’ anti-Haydo argument focuses on the
standards preliminary to the administration of the state program; the
conduct in question here, though, involves whether Pennsylvania
conformed to the criteria it developed to meet those standards.

The second prong of the anti-Haydo argument is based on the fact that
when a state fails to properly administer its program, the federal
government may take over and replace the defective state program with
federal regulation. 30 U.S.C. SS 1254, 1271. Again, however, this misses
the point. Federal law may provide the opportunity for the federal
government to correct a defective program, but the existence of that
provision does not transform the standards a state establishes as part of
that program into federal law.

We acknowledged in Haydo that suits underS 1270 may, of course, be
brought for violations of federal law. 830 F.2d at 496. Nevertheless, we
affirmed the District Court’s dismissal because the Haydos’ complaint
only alleged violations of state law, not of SMCRA itself. Parenthetically,
to the extent that Haydo was criticized by the Fourth Circuit in Molinary
v. Powell Mountain Coal Co., Inc., 125 F.3d 231, 236-37 n.5 (4th Cir.
1997), which, like Haydo, was not an Eleventh Amendment case and did
not involve a claim against a state official, subsequent case law in that
circuit, most importantly Bragg, has severely undercut the Molinary
reasoning.

                                11


mining. Pennsylvania’s proposed program was conditionally
approved in July 1982, and Pennsylvania was granted
"primacy" and the concomitant exclusive regulatory
jurisdiction over (and responsibility for) surface coal mining
and reclamation operations on non-federal and non-Indian
lands within its borders.8 47 Fed. Reg. 33050-80 (July 30,
1982). The Pennsylvania program is set forth in full in
exquisite detail primarily in the Pennsylvania Surface
Mining Conservation and Reclamation Act, 52 Pa. Stat.
Ann. SS 1396.1-1396.19a (Purdon 1998 & Supp. 2001),
which alone fills nearly one hundred pages of text, as well
as portions of the Clean Streams Law, Pa. Stat. Ann.
SS 691.1-691.1001 (Purdon 1993), and their accompanying
rules and regulations. 25 Pa. Code SS 86.1-86.242 and
SS 87.1-87.209. Primary authority to enforce the
Pennsylvania program is vested in the Pennsylvania DEP.

The text of the Pennsylvania program as found in
Pennsylvania’s statutes and regulations is not set forth in
30 C.F.R. S 938, that part of the federal regulations
reserved for Pennsylvania. All that is set forth is the
notification of the Secretary’s program approval, the action
taken by the Secretary on amendments proposed by
Pennsylvania, and the dates by which other amendments
were to be adopted by Pennsylvania. The regulations
nonetheless purport to "contain[ ] all rules applicable only
within Pennsylvania that have been adopted under
[SMCRA]." S 938.1. See alsoS 900.12.

An important environmental problem addressed by
SMCRA -- and by Pennsylvania -- was the reclamation of
sites after mining operations have ended. In order for a
state regulatory program to be initially approved by the
Secretary, therefore, the program must include a bonding
plan designed to ensure that money is available to reclaim,
if necessary, various mine sites, i.e., to restore the site after
the coal has been mined. 30 U.S.C. SS 1257(d), 1258; 30
C.F.R. S 800.11(e)(1). To receive a mining permit, operators
are required to submit a detailed reclamation plan for the
site in question. 30 U.S.C. SS 1257(d), 1258; 52 Pa. C.S.A.
_________________________________________________________________

8. The Secretary may grant full primacy to a state with a conditionally
approved program. 30 C.F.R. S 732.13(j).

                                12


S 1396.4(a)(2). Operators are also required to post a bond to
cover the costs of that plan if they default on it. 30 U.S.C.
S 1259; 52 Pa. C.S.A. S 1396.4(d).

Under SMCRA, the bonds collected by states from mining
operators must be "sufficient to assure the completion of
the reclamation plan if the work had to be performed by the
regulatory authority," i.e., the state. 30 U.S.C. S 1259(a). As
long as the federal objectives of the bonding program are
met, a state may also develop an alternative bonding
program, such as the one challenged here. 30 C.F.R.
S 800.11(e). That regulation requires that, under the
alternative program, the state regulatory authority collect
sufficient money to complete a reclamation plan for any site
which may be in default. Pennsylvania’s alternative bonding
program was conditionally approved. As part of that
program, Pennsylvania requires that before commencing
mining operations, an operator must file a bond with the
DEP.

       in an amount determined by the department based
       upon the total estimated cost to the Commonwealth of
       completing the approved reclamation plan, or in such
       other amount and form as may be established by the
       department pursuant to regulations for an alternate
       coal bonding program which shall achieve the
       objectives and purposes of the bonding program.

52 Pa. C.S.A. S 1396.4(d). In the 1982 approval of the
Pennsylvania program, the Secretary explicitly found that
the program met SMCRA’s minimum criteria for regulating
performance bonds. 47 Fed. Reg. at 33056.

Also as part of its program, Pennsylvania implemented
guidelines detailing how the amounts of such bonds were to
be calculated. First, complying with the explicit federal
minimum, 30 U.S.C. S 1259(a), Pennsylvania determined
that no bond shall be under $10,000. 52 Pa. C.S.A.
S 1396.4(d); 25 Pa. Code S 86.150. Second, under
Pennsylvania’s bonding program, bonds are supplemented
by money from a "bond pool" that may be applied to any
defaulting site in the system. This supplemental money is
derived from a nonrefundable fee of $100 (originally $50)
per acre charged to all operators when a permit is initially

                                13


issued. 25 Pa. Code S 86.17(e). The Secretary initially
expressed concern "about the continuing adequacy of the
amount of the bond and permit fee required for permit
areas that is applied to bond forfeitures." 47 Fed. Reg. at
33056. The Secretary required Pennsylvania to submit its
then-ongoing bonding adequacy review study to the OSM
"and to make any adjustments as necessary to cover
reclamation costs." Id. at 33057. Again, however,
Pennsylvania’s program was conditionally approved.

By 1991, Pennsylvania had been notified at least twice by
the OSM of that Office’s concerns regarding the alternative
bonding program. See 56 Fed. Reg. 24687, 24690 (May 31,
1991). Pennsylvania proposed to amend the relevant
provision, 25 Pa. Code S 86.17(e), to, inter alia, increase the
acreage fee from $50 to $100. 56 Fed. Reg. at 24689.
Although this amendment did not alleviate all of the OSM’s
concerns, the amendment was conditionally approved upon
Pennsylvania’s representation that it was taking steps to
remedy any existing deficits. Id. at 24690. More specifically,
the approval was conditioned on Pennsylvania’s
demonstration that the bond money, together with the
acreage fees, would meet the requirements of 30 C.F.R.
800.11(e) to (1) have available sufficient money to complete
the reclamation plan for any areas that might be in default
and (2) provide a substantial economic incentive for mine
operators to comply with all reclamation provisions. See 56
Fed. Reg. at 24690. Subsequently, this increase in acreage
fee was approved as an "intermediate step to keep the
shortage in the [bond] Fund from further deteriorating." 58
Fed. Reg. 36139, 36140 (July 6, 1993). The $100 fee,
collected in addition to the bonds posted under 25 Pa. Code
SS 86.145, .149, and .150, remains in force today. See 25
Pa. Code S 86.17(e). Technically, then, the bond
requirements of the Pennsylvania program -- $10,000 plus
the additional $100 per acre -- exceed the federal
minimum.

Finally, as part of the alternative bonding program, the
Pennsylvania DEP is responsible for establishing rate
guidelines and the method for determining the amounts of
reclamation bonds above the $10,000 and $100 per acre
floor. 25 Pa. Code S 86.145. Those guidelines are set forth

                                14


in 52 Pa. C.S.A. S 1396.4(d), which requires that
consideration be given to very specific factors as well as
other "criteria as may be relevant."9 A longer list appears in
S 86.149 of the Pennsylvania Code.10 Moreover, again
_________________________________________________________________

9. Section 1396.4(d) reads in part as follows:

       Said estimate shall be based upon the permittee’s statement of his
       estimated cost of fulfilling the plan during the course of his
       operation, inspection of the application and other documents
       submitted, inspection of the land area, and such other criteria as
       may be relevant, including, but not limited to, the probable difficulty
       of reclamation giving consideration to such factors as topography,
       geology of the site, hydrology, the proposed land use and the
       additional cost to the Commonwealth which may be entailed by
       being required to bring personnel and equipment to the site after
       abandonment by the permittee, in excess of the cost to the permittee
       of performing the necessary work during the course of his surface
       mining operations.

52 Pa. Stat. Ann. S 1396.4(d).
10. Section 86.149 reads as follows:

       S 86.149. Determination of bond amount.

       (a) The standard applied by the Department in determining the
       amount of bond will be the estimated cost to the Department if it
       had to complete the reclamation, restoration and abatement work
       required under the acts, regulations thereunder and the conditions
       of the permit. The Department may establish bonding rate
       guidelines which utilize the factors in S 86.145(c) (relating to
       Department responsibilities).

       (b) This amount will be based on, but not limited to, the following:

       (1) The estimated costs submitted by the permittee in accordance
       with S 87.68, S 88.96, S 88.492,S 89.71 or S 90.33.

       (2) Reclamation costs for surface mines related to the specific size
       and geometry of the proposed mining operation, the topography
       and geology of the permit area, the potential for water pollution or
       hydrologic disturbances, the availability of topsoil and the
       proposed land use.

       (3) The costs related to distinct differences in mining methods and
       reclamation standards for bituminous surface mines, anthracite
       surface mines and underground mines.
       (4) The cost of relocating or reconstructing roads or streams
       within the permit area.

                                15


conforming with federal law,11 the DEP may increase the
required bond amount "should such an increase be
determined by the department to be necessary to meet the
requirements of this act." 52 Pa. C.S.A. S 1396.4(d).

B. Plaintiffs’ Challenge

Plaintiffs’ primary argument is that the Pennsylvania
program, with its extensive and detailed standards geared
specifically to Pennsylvania, has been incorporated into
SMCRA because it has been "codified" in the C.F.R. and
this "codification" renders issues concerning the
_________________________________________________________________

       (5) The cost of sealing shafts or other mine openings, removal of
       buildings, facilities or other equipment, constructing, operating
       and maintaining treatment facilities and correcting surface
       subsidence.

       (6) The additional estimated costs to the Department which may
       arise from applicable public contracting requirements or the need
       to bring personnel and equipment to the permit area after its
       abandonment by the permittee to perform reclamation, restoration
       and abatement work.

       (7) The amount of fees, fines or other payments made to the
       Department and dedicated by the Department for reclamation,
       restoration and abatement of defaulted permit areas.

       (8) Additional estimated costs necessary, expedient and incident
       to the satisfactory completion of the requirements of the acts,
       regulations thereunder and the conditions of the permit.

       (9) An additional amount based on factors of cost changes during
       the preceding 5 years for the types of activities associated with the
       reclamation to be performed.

       (10) Other cost information as required from the permittee or
       otherwise available to the Department.

25 Pa. Code S 86.149.

11. "The amount of the bond or deposit required and the terms of each
acceptance of the applicant’s bond shall be adjusted by the regulatory
authority from time to time as affected land acreages are increased or
decreased or where the cost of future reclamation changes." 30 U.S.C.
S 1259(e).

                                16


Pennsylvania program issues of federal, not state, law.
Thus, the argument goes, even though specific violations of
the Pennsylvania program are pinpointed in most of the
counts at issue here, it is violations of federal law plaintiffs
are alleging in all of the counts, and the Ex parte Young
exception to Eleventh Amendment immunity, therefore,
poses no bar. Plaintiffs’ alternative argument is that even if
state law standards are not incorporated into federal law,
the state official -- Seif -- nevertheless has a federal
statutory duty to implement those standards, a duty he is
not fulfilling.

The eight counts before us on these appeals allege the
following:

        Count One: Seif failed to maintain a reclamation
       bonding system that has sufficient funds available to
       assure the Pennsylvania DEP’s prompt completion of
       the reclamation plan for any defaulting mine site and
       failed to provide a substantial economic incentive for
       the operator to comply with the reclamation provisions
       rather than default;

        Count Two: Seif failed to (a) establish bonding
       amount rate guidelines that are based on the factors
       specified in the approved Pennsylvania program and (b)
       complete annually a review of Pennsylvania’s bonding
       rate guidelines and revise those guidelines, if
       necessary, to reflect the current cost of reclamation;

        Count Three: Seif failed to raise the bond amount for
       a particular mine site when the cost of future
       reclamation increases, including circumstances in
       which a post-mining discharge develops that an
       operator is responsible to treat;

        Count Four: Seif used a treatment period of only 50
       years in determining the adequacy of bonds for coal
       mine sites with discharges;

        Count Five: Seif used an across-the-board figure of
       only $10,000 for repair and reclamation of the surface
       effects of subsidence when calculating bond amounts
       for underground coal mines and DEP has not
       promulgated any regulation or any document under

                                17


       which operators would be required to post bonds in
       amounts that are based on factors identified in the
       Pennsylvania Act and regulations;

        Count Six: Seif used the "capital replacement cost"
       method to determine the mine drainage treatment
       component when calculating bond amounts for
       underground coal mines and failed to consider all costs
       of treating potential discharges of mine drainage when
       calculating, adjusting, or releasing the amount of
       bonds for certain underground coal mines;

        Count Seven: Seif failed to timely submit to OSM
       information showing that the revenue derived from
       Pennsylvania’s reclamation fee is adequate to assure
       that Pennsylvania’s alternative bonding system can be
       operated to meet federal and state requirements, and
       failed to timely submit to OSM a clarification of the
       procedures for bonding the surface impacts of
       underground mines and the reclamation of
       underground mining permits where the operator has
       defaulted, both requirements of 30 C.F.R. S 938.16(h);
       and

        Count Eight: Seif failed to submit to OSM, as
       required by 30 C.F.R. S 732.17, an amendment to the
       Pennsylvania program that provides additional or
       alternate financial guarantees for the long term
       treatment of mine drainage upon notification from OSM
       that such an amendment was necessary.

The thrust of these eight counts is Seif ’s purported
failure to perform various nondiscretionary duties vis-a-vis
Pennsylvania’s reclamation bonding program for surface
coal mining in the state. The salient aspects of that
program, discussed above, bring into focus the central
issue before us on these appeals, i.e., whether the District
Court correctly determined, as to each of the various
counts of the complaint, that the law allegedly being
violated by Seif, and to which plaintiffs seek that he
conform his conduct, is federal law or state law. While, we
warn, the question is inordinately easier to ask than to
answer -- at least as to certain counts of the complaint --
the answer will, virtually without more, enable us to

                                18


determine whether Seif may or may not properly invoke
Eleventh Amendment immunity.

The Supreme Court of the United States, and we, have
recently reviewed Eleventh Amendment jurisprudence and
we see no reason to reprise that review. See Federal
Maritime Comm. v. South Carolina State Ports Authority, 122
S. Ct. 1864, 1870-71 (2002); MCI Telecomm. Corp. v. Bell
Atlantic-Pa., 271 F.3d 491, 503-08 (3d Cir. 2001). Suffice it
to say, the Eleventh Amendment -- "The Judicial power of
the United States shall not . . . extend to any suit. . .
commenced or prosecuted against one of the . . . States by
Citizens of another State" -- has been interpreted to render
states -- and, by extension, state agencies and departments
and officials when the state is the real party in interest --
generally immune from suit by private parties in federal
court. Indeed, it has been recognized for over two hundred
years that a state’s immunity from suit in federal court is
a fundamental principle of our constitutional structure that
preserves, as intended by the Framers, the respect and
dignity of the states and protects the ability of the states "to
govern in accordance with the will of their citizens." Alden
v. Maine, 527 U.S. 706, 751 (1999).

Eleventh Amendment immunity is, however, subject to
three primary exceptions: (1) congressional abrogation, (2)
waiver by the state, and (3) suits against individual state
officers for prospective injunctive and declaratory relief to
end an ongoing violation of federal law. MCI, 271 F.3d at
503. The third exception, the sole exception invoked here,
is the doctrine of Ex parte Young, 209 U.S. 123 (1908). As
we explained,

       The theory behind Young is that a suit to halt the
       enforcement of a state law in conflict with the federal
       constitution is an action against the individual officer
       charged with that enforcement and ceases to be an
       action against the state to which sovereign immunity
       extends; the officer is stripped of his official or
       representative character and becomes subject to the
       consequences of his individual conduct. See Young 209
       U.S. at 159-60, 28 S.Ct. 441; see also Pennhurst State
       Sch. and Hosp. v. Halderman, 465 U.S. 89, 103, 104
       S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II ) (stating

                                19


       that, under the theory of Young, an action for
       prospective relief against the state officer was not an
       action against the state because the allegation of a
       violation of federal law would strip the officer of his
       official authority). The relief sought must be
       prospective, declaratory, or injunctive relief governing
       an officer’s future conduct and cannot be retrospective,
       such as money damages. See Pennhurst II, 465 U.S. at
       102-03, 104 S.Ct. 900.

        The Young doctrine is accepted as necessary to
       permit federal courts to vindicate federal rights and to
       hold state officials responsible to the "supreme
       authority of the United States." See id. at 105, 104
       S.Ct. 900. The doctrine applies both to violations of the
       United States Constitution and to violation of federal
       statutes. See Balgowan v. New Jersey, 115 F.3d 214,
       218 (3d Cir. 1997) (holding that suit for declaratory
       relief against state officer under Fair Labor Standards
       Act is permissible under Young); see also Allegheny
       County Sanitary Auth. v. U.S.E.P.A., 732 F.2d 1167,
       1174 (3d Cir. 1984). However, Young does not apply if,
       although the action is nominally against individual
       officers, the state is the real, substantial party in
       interest and the suit in fact is against the state. See
       Pennhurst II, 465 U.S. at 101, 104 S.Ct. 900.

Id. at 506.12

In determining whether the Ex parte Young doctrine
avoids an Eleventh Amendment bar, the Supreme Court
has made it quite clear that "a court need only conduct a
‘straightforward inquiry into whether [the] complaint alleges
an ongoing violation of federal law and seeks relief properly
characterized as prospective." Verizon Maryland, Inc. v.
Public Service Commission of Maryland, 122 S. Ct. 1753,
_________________________________________________________________
12. We concluded in MCI that neither of the two recognized exceptions to
Young, i.e., those of Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261
(1997), and Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996),
barred that action. Given our conclusion that it is state law implicated
in Counts One through Six and that, therefore, the Ex parte Young
exception does not apply, we need not discuss the exceptions to that
exception.

                                20


1760 (2002), quoting Coeur d’Alene, 521 U.S. at 296
(O’Connor, J., concurring in part and concurring in the
judgment). While the relief sought here is "prospective," the
question we must answer is whether the ongoing violations
alleged are of federal or state law.13 It bears repetition that
state law and the implementing state regulations are the
means of effectuating the purposes of SMCRA. Because
Pennsylvania is a primacy state, the OSM has relinquished
its regulatory authority and regulation is a matter of state
law. Thus, a court must initially look to state law,
especially where there is an element of state program that
mirrors and is thus clearly intended to conform to and/or
implement the federal objective. Unless an element of an
approved state program is inconsistent with -- i.e., less
stringent than -- the federal objective it implements, the
state law or regulation is intended to control, rather than
the federal provision. This was Congress’s intent when it
ceded "exclusive jurisdiction" over surface mining
regulation in primacy states.

1. Counts One Through Six

As our recitation of Counts One through Six should
indicate, those counts challenge the administration or
implementation of Pennsylvania’s approved alternative
bonding program. This was so clear as to Counts Two and
Five that plaintiffs did not seek reconsideration of the
District Court’s dismissal of those two counts. Similarly, as
to Counts Four and Six, it is Pennsylvania, not SMCRA,
which, respectively, creates the treatment period of fifty
years in determining the adequacy of bonds and creates the
capital replacement cost method used by Seif for bond
calculations. Indeed, no provision of SMCRA or the federal
regulations is even cited in Counts Two, Four, Five, and
Six, except by boilerplate incorporation by reference. As the
District Court put it, "[t]o allow a federal court to second-
_________________________________________________________________

13. We note in passing that S 1270(a)(2) of SMCRA applies only to acts
or duties which are "not discretionary." While it is far from clear that the
acts and duties at issue in Counts One through Six are "not
discretionary," that alternative reason for the potential dismissal of those
counts is not before us on these interlocutory appeals.

                                21


guess certain detailed aspects of a state program infringes
upon state sovereignty," and it is inappropriate"to question
a certain discretionary aspect of the state program which
was given primacy by the OSM, and to direct the state on
what method to use to conduct its calculations." A.32, 33.
The District Court correctly determined that, at least as to
Counts Two, Four, Five, and Six, this case fell outside the
Ex parte Young exception and that Seif enjoyed immunity.
Simply put, the Eleventh Amendment prohibits a federal
court from considering a claim that a state official violated
state law in carrying out his or her official responsibilities.
Pennhurst State School and Hospital v. Halderman, 465
U.S. 89 (1984).

       [I]t is difficult to think of a greater intrusion on state
       sovereignty than when a federal court instructs state
       officials on how to conform their conduct to state law.
       Such a result conflicts directly with the principles of
       federalism that underlie the Eleventh Amendment. We
       conclude that [Ex parte] Young and Edelman [v. Jordan]
       are inapplicable in a suit against state officials on the
       basis of state law.

Id. at 106.

The District Court, however, wrongly came to the
opposite conclusion when it refused to dismiss Counts One
and Three, based on its finding that those counts stated
violations of SMCRA, i.e., federal law. These counts do, at
least nominally, allege violations of SMCRA -- and, we note,
also allege specific violations of the "approved Pennsylvania
program." But saying that certain conduct is a violation of
SMCRA does not make it so as a matter of law. Rather, the
appropriate inquiry for Ex parte Young purposes is whether
a court is being asked to enforce state law or federal law as
against an individual state officer. See MCI, 271 F.3d at
507.

The only reference to SMCRA in Count One is a citation
to S 1259(a) and (c), which simply set forth the
requirements for the performance bond or bonds which are
to be filed with the state regulatory authority and states
that the Secretary can approve an alternative bonding
system. The language of Count One does track a federal

                                22


regulation, 30 C.F.R. S 800.11(e), but S 800.11(e) merely
sets the criteria that guide the OSM when, in its discretion,
it determines whether to approve an alternative bonding
system that a state proposes. As outlined above, those
criteria were met, and Pennsylvania’s alternative system
was conditionally approved. As such, jurisdiction for its
administration and enforcement devolved on the state.
Whether, in practice, the Pennsylvania program
subsequently meets the minimum standards set forth in
SMCRA is a matter for the federal oversight body-- the
OSM -- and not for the federal courts. With authority
vested in the state, the approved state program developed
pursuant to that authority is what governs surface coal
mining operations. The administration and functioning of
the state bonding program is thus a matter of state law,
and as such prospective relief vis-a-vis that program as
against Seif is barred in federal court by the Eleventh
Amendment.

The same is true for Count Three, which clearly
articulates a closer connection to state provisions than to
federal provisions, as evidenced by the example given of a
post-mining discharge at a particular mine site.
Pennsylvania’s bonding program provides detailed
guidelines for addressing such discharges. See 52 Pa.
C.S.A. S 1396.4(d.2),(g.2),(g.3). SMCRA nowhere discusses
them. More generally, however, given the bonding
framework established under the state’s regulatory
program, the explicit guidelines for determining bond
amounts developed under that framework, and the
language of 52 Pa. C.S.A. S 1396.4(d) authorizing increases
when necessary (a statute at least as stringent as its federal
counterpart), it is clear that Count Three challenges, and
seeks relief under, state, rather than federal, law. It is thus
barred in federal court by the Eleventh Amendment.
Indeed, any assertion that it is federal law that precludes a
state from setting a bond amount that does not comply
with state law and, thus, that a district court has
jurisdiction to review the state determination as to each
particular mine site, is simply beyond the pale.

What should be obvious by now is that, at least
implicitly, we have rejected plaintiffs’ theory that the

                                23


Pennsylvania program, with its Pennsylvania-specific
standards, has been incorporated or "codified" into federal
law. We now do so explicitly.

Plaintiffs point to the language of 30 C.F.R. S 900.11 and
S 900.12(a) by which, under S 900.11, a state program
establishing surface mining standards "applicable within
each State is codified in the part [of the C.F.R. reserved] for
that State" and, under S 900.12(a), on approval of a state
program "the Secretary will publish a final rule to be
codified under the applicable part number assigned to the
State." They argue that this language explicitly incorporates
the state standards into federal law. Indeed, they suggest
that this incorporation is even more explicit than that at
issue in Arkansas v. Oklahoma, 503 U.S. 91 (1992) where
all applicable state standards for water quality were found
to be effectively incorporated into the Clean Water Act. We
disagree.

First, nothing in SMCRA itself explicitly or implicitly
incorporates state law as federal law or directs the OSM to
do so. Second, it bears repetition that Part 938 of the
C.F.R. reserved for Pennsylvania does not set forth any
portion of the text, much less the complete text, of the
Pennsylvania statutes and regulations approved by the
OSM. Rather, the reader is referred to the office locations in
the state of Pennsylvania at which copies of those statutes
and regulations can be obtained, and merely identifies the
dates the Pennsylvania program was approved, the action
taken by the Secretary on amendments proposed by
Pennsylvania to its program, and the dates by which
Pennsylvania must adopt additional amendments
recommended by the Secretary. The federal surface mining
regulations, in stark contrast, are "codified" in their full text
at 30 C.F.R. Part 772-85. Third, simply referring to a state
statute or regulation in the Code of Federal Regulations
does not invest it with federal authority, even if the OSM
had the authority under the Constitution or under SMCRA
to transform state law into federal law, which it does not.
Plaintiffs, however, invoke the language of the C.F.R.
sections applicable to Pennsylvania and, more particularly,
30 C.F.R. S 938.1, which states that the succeeding
sections contain those rules "applicable only within

                                24


Pennsylvania that have been adopted under the [SMCRA]."
Despite plaintiffs’ suggestion, the "adopted under" clause
cannot imbue a regulation enacted by a Pennsylvania
agency, and only applicable within Pennsylvania , with
federal authority. This conclusion is supported by the fact
that throughout the federal regulations, approved state
programs are described not as federal law but as"state
laws and regulations"; further, the federal regulations
establish different mechanisms for state and federal
programs.

Moreover, the state-specific nature of mining standards
illustrates why Arkansas v. Oklahoma is inapposite. As that
case noted, the Clean Water Act was intended to establish
a "uniform system of interstate water pollution regulation"
in which the federal role was integral; indeed, the interstate
flow of water federalized the issue. 503 U.S. at 110
(emphasis added). Although SMCRA was intended to
establish a "nationwide" program of minimum standards for
protecting health, safety, and the environment, 30 U.S.C.
S 1202(a), Congress also explicitly found that mined areas
across the nation had such a range of environmental and
"physical conditions" that the "primary governmental
responsibility" for developing and regulating each state’s
program should rest with that state, with the federal role
restricted to limited oversight and enforcement only if the
state did not do so. S 1201(f). Indeed, the laws in the
various states differ because the terrains and environments
of the various states differ; if, then, any violation of state
law were a violation of federal law, there would be different
federal law in every primacy state. Finally, there is no
"explicit incorporation" of each state’s standards even into
the separate C.F.R. subchapters devoted to each state’s
program, nor do the federal regulations evidence the
"intent" to incorporate state standards with which plaintiffs
credit them. Nor, of course, could they incorporate state
standards, for if Congress could empower the OSM to
incorporate state law into federal law by agency action via
the OSM’s regulations such that states could be sued by
citizens in federal court, the limitations on Congress’s
authority to override the Eleventh Amendment by means of
legislation would be rendered a virtual nullity.

                                25


Plaintiffs also rely heavily on our decision in Geis v.
Board of Educ. of Parsippany-Troy Hills, 774 F.2d 575 (3d
Cir. 1985), where we found that the Individuals with
Disabilities Education Act ("IDEA"), formerly known as the
Education of the Handicapped Act, explicitly incorporated
New Jersey educational standards. To be sure, in both the
IDEA and SMCRA "the states are given considerable
latitude in establishing the applicable standards, subject to
a floor mandated by federal law." Id. at 581. But there are
important differences between the two statutes. First, as we
have discussed, the incorporation of state standards is not
explicit in SMCRA. Second, in the IDEA the federal
government "retains considerable authority" to enforce the
applicable state standards, id., whereas in SMCRA federal
enforcement authority is in large measure restricted to
situations where imminent danger to the public or
imminent environmental harm is threatened or where the
state has defaulted in enforcing its program -- SMCRA, in
other words, emphasizes the mutually "exclusive"
jurisdiction to regulate by either the particular state or the
federal government. Third, in the IDEA, which, unlike
SMCRA, is a true cooperative federalism statute, Congress
granted state and federal courts concurrent jurisdiction to
adjudicate disputes. In sum, then, SMCRA indicates a clear
distinction between state and federal law for regulatory
purposes, for the enforcement of violations, and for
purposes of the Eleventh Amendment. The IDEA does not.

Separate and apart from the reasons why Pennsylvania’s
program was not incorporated or codified into federal law,
it would have made little sense to have done so. The federal
standards set forth in SMCRA are simply ones which a
state must meet initially for its proposed program to qualify
for "exclusive jurisdiction" over the regulation of surface
mining within that state. When a state then enacts laws
that outline its duties in regulating such mining, it is those
state laws that become "directly applicable"; the federal law
and regulations, which continue "to provide the‘blueprint’
against which to evaluate the State’s program, ‘drop out’ as
operative provisions," "even though the relevant language in
the State law is identical to that in the federal law." Bragg,
248 F.3d at 289, 296. Of course, if a state does not fulfill
the duties outlined by those state laws, then either the

                                26


United States (in the person of the Secretary), the state, or
injured citizens may step in to ensure compliance. The
Secretary may step in to withdraw approval of the state’s
ineffective program or a part thereof and to enforce, in
federal court, federal provisions and sanctions for violations
of the minimum standards set forth in SMCRA. 30 U.S.C.
SS 1254, 1271. The state shall, upon notice from any
person, conduct an inspection of the alleged violation. 52
Pa. Stat. Ann. SS 1396.18c(b), 1406.13(c). And injured
citizens, as they have done here, may file suit to enforce the
provisions and standards delineated under state law, and
Pennsylvania has consented to be sued in state court. 52
Pa. Stat. Ann. SS 1396.18c(a), 1406.13. Suit for violations of
state law brought against a state or its officials, however,
may simply not be brought in federal court.

The absence of incorporation also illustrates why, as we
discussed earlier, the arrangement is not true cooperative
federalism. As the Bragg Court put it, SMCRA, unlike other
"cooperative federalism" statutes, exhibits"extraordinary"
and, indeed, "unparalleled" deference to the states, and a
"careful and deliberate" encouragement of"exclusive" state
regulation. Id. at 293, 294. In turn, this lack of true
cooperative federalism and mutual jurisdiction defeats one
of plaintiffs’ criticisms of Bragg. They argue that Bragg
wrongfully held that the federal government is divested of
"direct regulatory authority" under the Interior Board of
Land Appeals’14 holdings. In particular, they rely on Central
Ohio Coal Co. v. OSMRE, 140 IBLA 1, 6 (July 31, 1997),
which holds that "while a primacy state has primary
jurisdiction for enforcement of an approved state program,
that jurisdiction is not exclusive, and OSM has the
authority to enforce the state program on a mine-by-mine
basis under proper circumstances." While at least the latter
point is correct, it is clear from Central Ohio that the OSM’s
jurisdiction does not reach the full enforcement authority
for which plaintiffs hope. The oversight jurisdiction there
was the authority vested in the OSM to inspect specific
_________________________________________________________________

14. The Interior Board of Land Appeals is part of the Secretary of the
Interior’s Office. It hears, among other matters, appeals from "decisions
rendered by Departmental officials relating to . . . the conduct of surface
coal mining under the [SMCRA]." 43 C.F.R.S 4.1(b)(3).

                                27


mines, and, if violations were observed, to issue violation
notices. See 30 C.F.R. S 843.12(a)(2). Importantly, such
notice is given to both the permittee and to the state, "so
that appropriate action can be taken by the State." Id.
(emphasis added). Because the state has "primary"
authority, only if the state fails to act within ten days is
further action taken by the OSM, either by issuing another
violation notice or a cessation order. This deference to the
state’s authority clearly indicates that enforcement by the
federal government is a last resort; jurisdiction is hardly
shared.15 Indeed, as the Hodel Court observed, SMCRA
contemplated "enforcement responsibility lying with either
the State or Federal Government." Hodel, 452 U.S. at 269.

According to Bragg, to construe SMCRA otherwise

       would circumvent the carefully designed balance that
       Congress established between the federal government
       and the States because the effect of a citizen suit to
       enjoin officials in a primacy State to comport with the
       federal provisions establishing the core standards for
       surface coal mining would end the exclusive State
       regulation and undermine the federalism established
       by the Act. Thus, rather than advancing the federal
       interest in preserving this statutory design, [plaintiffs’]
       interpretation would frustrate it.

248 F.3d at 295 (emphasis in original). This is so because,
again, if a state fails to properly administer the provisions
and the OSM has done nothing or too little, citizens can
sue in state court to enforce the state law standards.16 52
_________________________________________________________________

15. 30 C.F.R. S 843.11 is even stronger, allowing the OSM to order the
cessation of surface mining activity when--consistent with SMCRA’s
balancing of societal and economic interests--there is imminent danger
to health or to the environment. Id. S (a)(1). Again, this reluctance to
interfere absent "imminent danger" suggests a deference to state
enforcement and an intent to allow federal enforcement only as a last
resort. The provisions of 30 U.S.C. S 1271, allowing the revocation of a
deficient state program, are similarly to be applied after notice to the
state or when there is imminent danger.

16. This is not to adopt the controversial suggestion in Justice Kennedy’s
Coeur d’Alene opinion that the availability of a state forum to hear a
dispute should, virtually without more, bar application of the Ex parte

                                28


Pa. Stat. Ann. SS 1396.18c(a), 1406.13. They can also bring
suit against the Secretary of the Department of the Interior
and the Director of the OSM under 30 U.S.C. S 1270 as, of
course, they have done here in Counts Nine through
Eleven.

Plaintiffs’ fall-back position is that even if state law is not
incorporated into federal law, Seif has a federally imposed
duty to implement specific state provisions that triggers the
Ex parte Young exception; in essence, this was the question
certified by the District Court. That duty is purportedly
based on 30 C.F.R. S 733.11, which does no more than
require Pennsylvania to implement, administer, and enforce
its program in accordance with SMCRA, "this chapter," and
the provisions of the Pennsylvania program. The District
Court did not credit this "federal duty" argument, observing
that to allow a federal court to sit in judgment of a state
concerning the state’s duty to satisfy its own regulations
contradicts the spirit of the Eleventh Amendment and the
Ex parte Young doctrine. Indeed, it seems, if there is such
a "federal duty," the Eleventh Amendment would become an
irrelevancy.

In support of their "federal duty" argument, plaintiffs
point to Barnes v. Cohen, 749 F.2d 1009 (3d Cir. 1984),
where we rejected a Pennhurst argument in the context of
Pennsylvania’s administration of the Aid for Families with
Dependent Children ("AFDC") program. That program
involved state payments to needy families that were
matched with federal funds. In order to qualify for the
_________________________________________________________________

Young doctrine. 521 U.S. at 270-74. That suggestion has been rejected
by all but one other Member of the Court, the Chief Justice.
Nevertheless, the opportunity to redress violations in state court
emphasizes the primary jurisdiction enjoyed by Pennsylvania.
Parenthetically, it appears that both the Bragg Court and the District
Court did adopt the conclusion, again joined in only by Justice Kennedy
and the Chief Justice, that a federal court, in determining whether to
exercise jurisdiction over a state official, must engage in a case-by-case
analysis of a number of concerns, including whether a state forum is
available. That error, however, did not affect the principal basis of the
Bragg and District Courts’ holdings, i.e. the plain language of SMCRA
and the Supreme Court’s Pennhurst decision.

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matching funds program, states were required to set
criteria to determine a minimum income that would qualify
a family for funds, and to determine a payment level of how
much the state would actually pay. States were given"a
great deal of discretion" under the AFDC as to both sets of
criteria. Everett v. Schramm, 772 F.2d 1114, 1115 (3d Cir.
1985) (citation omitted). Plaintiffs brought suit alleging
violations of the standards Pennsylvania had established,
and we concluded that injunctive relief against the state
official was not precluded by the Eleventh Amendment. We
noted the "intensely federal nature of the AFDC program"
as well as its requirement that state plans " ‘be in effect in
all political subdivisions of the State, and, if administered
by them, be mandatory upon them.’ 42 U.S.C. S 602(a)(1)."
Barnes, 749 F.2d 1019 & n.8. In brief, plaintiffs here urge
that we interpret SMCRA as, in Barnes, we interpreted the
AFDC, finding that it

       [requires] the state to adhere to its own regulations, at
       least so long as the regulations are still in effect. . . .
       [In acting inconsistently] with the state regulation[, t]he
       Pennsylvania officials, then, were not adhering to their
       own regulations and, consequently, violated the state
       . . . plan, thereby transgressing federal law. Thus, the
       Pennhurst case is inapplicable and injunctive relief
       against the state officials is not precluded.

Id. at 1019 (emphasis in original) (footnotes omitted).
Everett came to a similar conclusion, allowing a Section
1983 suit to go forward. 772 F.2d at 1118-19.

Barnes is simply inapplicable. First, of course, Barnes
addressed the incorporation of the state criteria into the
federal AFDC statute, and not any federal regulation that
might impose or purport to impose an ongoing federal duty.
We have explained above why the incorporation argument
must be rejected in the SMCRA context. Relatedly-- a
point that we have also made above -- the interplay of
federal and state governments in SMCRA is more limited
than in other "cooperative federalism" statutes such as the
Clean Water Act, the IDEA, or the "intensely federal" AFDC
at issue in Barnes and Everett. The federal agencies
administering those statutes, for example, at no point "drop
out" of that administration as the OSM does under SMCRA.

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The language and structure of the AFDC mandated the
result in Barnes and the language and structure of the
IDEA mandated the result in Geis; similarly, the unique
language and structure of SMCRA mandate a different
result here.

Further, the federal duty argument makes as little sense
as the incorporation or codification argument, for many of
the same reasons. State standards with reference to surface
coal mining operations are specifically crafted to a specific
state’s conditions and may, and frequently do, exceed
federal minima in stringency. Where they do, a scenario
can easily be envisioned in which state standards are not
being met but the minimum standards established by
federal law are (assuming, of course, that federal standards
were operative after approval of a state program, which, as
we have discussed, they are not). Under plaintiffs’ theory, a
federal duty to enforce state standards would exist even
though no standard established by federal law was being
violated. It simply stretches 30 C.F.R. S 733.11 too far to
say that it imposes a duty under federal law to implement
state law. Once primacy was granted, Seif ’s"duty" to
implement the Pennsylvania program on a day-to-day basis
arose under state law. We thus answer with a resounding
"yes" the certified question which asked whether Seif was
"entitled to Eleventh Amendment immunity from suit in
federal court as to allegations of continuing violations of
duties under the [approved] Pennsylvania program. . . ."

2. The Remaining Counts

Having determined that Counts One through Six against
Seif in federal court are not authorized by the Ex parte
Young exception to the Eleventh Amendment, all that
remains for our consideration is whether the District Court
correctly determined that Counts Seven and Eight allege
violations of federal law only and, thus, are not barred by
the Eleventh Amendment. The District Court was correct.

Count Seven, we repeat, charges Seif with failing to
submit to the OSM certain information required by 30
C.F.R. S 938.16(h). Count Eight charges his failure to
submit to the OSM a certain amendment to the

                                31


Pennsylvania program that he was required by 30 C.F.R.
S 732.17(f)(1) to submit. These counts, in essence, allege
that Pennsylvania, via Seif, has not complied with certain
specific and ongoing federal oversight requirements,
requirements that have no counterpart in state law.
Accordingly, these counts may go forward against Seif
under the Ex parte Young exception to the Eleventh
Amendment, because plaintiffs seek prospective relief
against him for an ongoing violation of a nondiscretionary
duty directly imposed by federal law. Parenthetically, this
conclusion gives the lie to the federal defendants’
suggestion that the language of S 1270(a)(2), allowing a
citizens suit in federal court against a state regulatory
authority "to the extent permitted by the eleventh
amendment," makes no sense if there could never be a
violation of federal law once a state program is approved.
Indeed, Seif conceded at oral argument that a citizens suit
could have been brought in 1982 had any "citizen" believed
that primacy had been improperly granted to Pennsylvania.

In anticipation of the conclusion that Counts Seven and
Eight fall within the Ex parte Young exception, a conclusion
with which he did not take issue at oral argument before
us, Seif contends that the Seminole Tribe exception to that
exception should apply because of the "detailed remedial
scheme" purportedly developed in SMCRA. Seminole Tribe
of Florida v. Florida, 517 U.S. 44 (1996). Under Seminole
Tribe, if Congress establishes a "detailed remedial scheme
for the enforcement against a State of a statutorily created
right, a court should hesitate before casting aside those
limitations and permitting an action against a state officer
based upon Ex parte Young." Id. at 74.

The remedial scheme question has not been addressed in
the context of SMCRA. In Bragg, the only other Court of
Appeals’ analysis of the Eleventh Amendment issues raised
here, the Fourth Circuit explicitly declined to do so. 248
F.3d at 290 n.3. Briefly, the question is whether the scope
of the statutory remedy Congress established displaces the
"default option" of an Ex parte Young suit. Where Congress
explicitly outlines a detailed remedial scheme for a
statutory violation, the Seminole Tribe Court cautioned
hesitation before "casting aside those limitations" and

                                32


permitting an action based on Ex parte Young. Seminole
Tribe, 517 U.S. at 74, 76. This caution essentially defers to
Congress’s authority to define remedies for rights it has
defined.

As the District Court pointed out, however, SMCRA does
not contain a detailed remedial scheme such that a federal
court’s ability to hear the case would be suspended.
SMCRA merely provides for the OSM to take over regulatory
authority upon the failure in whole or in part of a state
program. Although both the District Court and Seif focus
on the "invasive" nature of this "remedy," more to the point
is that there is no clear expression by Congress of what
remedies should apply when a SMCRA violation is found
other than (a) a takeover by the OSM in whole or in part,
or (b) suit in federal court. Neither is there any indication
by Congress of an intent to limit remedies. It must be
remembered that suit in federal court is explicitly allowed
"to the extent allowed by the eleventh amendment,"
S 1270(a)(2), which further suggests that Ex parte Young
suits were intended to go forward where appropriate.
Accordingly, the District Court correctly concluded that the
Seminole Tribe remedial scheme doctrine does not preclude
an Ex parte Young suit under SMCRA.

One final note. These are interlocutory appeals in which
the ultimate question is whether Seif was or was not
properly accorded Eleventh Amendment immunity. Seif
suggested at oral argument that there are other reasons
why Counts Seven and Eight should be dismissed -- for
example, that what plaintiffs allege in those counts is an
ongoing "administrative process" between the OSM and the
DEP that, in plaintiffs’ view, is moving too slowly but, Seif
says, is not something that Congress intended a citizens
suit to address. Any "other reasons" Seif may have for
seeking the dismissal of Counts Seven and Eight are not for
us to consider on these appeals and must await
consideration by another court on another day.

IV.

CONCLUSION

We, therefore, will affirm the orders of the District Court
insofar as they dismissed Counts Two, Four, Five, and Six

                                33


and declined to dismiss Counts Seven and Eight. We
reverse those orders insofar as they denied Seif ’s motion to
dismiss Counts One and Three, and remand with
instructions to dismiss those counts without prejudice so
that plaintiffs may present them and Counts Two, Four,
Five, and Six in the appropriate forum. Each party to these
appeals to bear its own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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