                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-1596



WEST    VIRGINIA      HIGHLANDS    CONSERVANCY,
INCORPORATED,

                                              Plaintiff - Appellant,

           versus


DIRK KEMPTHORNE, Secretary of the Department
of the Interior,

                                               Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
District Judge. (2:05-cv-00011-FPS)


Argued:   November 30, 2006                 Decided:   March 13, 2007


Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed in part and vacated and remanded in part by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge King and
Senior Judge Hamilton joined.


ARGUED: Walton Davis Morris, Jr., Charlottesville, Virginia, for
Appellant. Kathryn E. Kovacs, UNITED STATES DEPARTMENT OF JUSTICE,
Environment & Natural Resources Division, Appellate Section,
Washington, D.C., for Appellee. ON BRIEF: Wayne A. Babcock, Field
Solicitor, UNITED STATES DEPARTMENT OF THE INTERIOR, Pittsburgh,
Pennsylvania, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      West Virginia Highlands Conservancy, Inc. (“Conservancy”)

filed     a       “Complaint     and   Petition     for    Judicial   Review”    in   the

district court, seeking review of the decision of the Secretary of

the Department of the Interior (“Secretary”).1                     The district court

granted       summary       judgment     in   favor   of    the   Secretary,    and   the

Conservancy now appeals.                 For the reasons set forth below, we

affirm in part and vacate in part, and we remand for further

proceedings consistent with this opinion.



                                                I

      This case concerns a West Virginia surface coal mine operated

by LaRosa Fuel Company, Inc. (“LaRosa”).                     In 1979, West Virginia

issued        a    permit   to    LaRosa      outlining    the    conditions    for   the

operation of the mine. When LaRosa ceased active mining operations

in 1980, it sought and received a release of this permit through

the   appropriate           state      authorities.        The    Secretary     and   the

Conservancy both contend that between the time LaRosa discontinued

mining and September 1992, an unlawful amount of acid mine drainage

began leaching into the surrounding waterways.                     In September 1992,



      1
      The Interior Board of Land Appeals (“Board”) exercises the
authority of the Secretary in matters pertaining to the Surface
Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328,
and certain regulations at issue in this case. Thus, we review
herein the actions of the Board, acting on behalf of the Secretary,
which prompted the Conservancy’s complaint and petition for review.

                                                3
the Conservancy filed a citizen complaint with the Office of

Surface Mining (“OSM”), requesting federal inspection of the mine

and appropriate enforcement action to ensure abatement of the

unlawful discharge.      OSM sent the West Virginia Department of

Environmental Protection (“WVDEP”), the state agency that OSM

believed   had    jurisdiction   over   the   mine,   a   ten-day   notice,

notifying it of the alleged violations occurring at the mine.

WVDEP refused to take any enforcement action, stating that LaRosa’s

permit had been released. This refusal ultimately led to a federal

inspection by the OSM field office in Charleston, West Virginia

(“Field Office”).

     Following its inspection in early 1993, the Field Office

issued a “Notice of Violation” to LaRosa, followed by a “Failure to

Abate Cessation Order.”     LaRosa filed for agency review of these

citations.2      For more than a year after the Failure to Abate

Cessation Order issued, OSM took no further action against LaRosa,

despite the alleged continued violations. In 1994, the Conservancy

filed a request with the Assistant Director of OSM (“Assistant

Director”) for an informal review of the inaction of OSM, seeking

to compel OSM to pursue enforcement action against LaRosa.             The

Conservancy alleged that such action was required by 30 C.F.R. §


     2
      The review of the jurisdictional basis for both the Notice of
Violation and the Failure to Abate Cessation Order is still pending
in the hearings division of the Department of the Interior. The
pendency of this review gives rise to the ripeness issues discussed
herein.

                                    4
845.15(b)(2).    In its request for informal review, the Conservancy

stated two grievances: (1) OSM failed to take proper enforcement

action against LaRosa following LaRosa’s apparent disregard for the

Notice of Violation and Failure to Abate Cessation Order; (2) OSM

should issue an additional notice of violation to LaRosa for

failing to maintain a National Pollution Discharge Elimination

System (“NPDES”) permit and failing to complete periodic monitoring

and reporting, in violation of the Clean Water Act (“CWA”).

      After the Conservancy filed its request for informal review

with the Assistant Director, the Field Office reinspected the mine

and   found   that   the   unlawful   discharges   continued.        OSM   then

immediately filed documentation with the Department of Justice

(“DOJ”) seeking injunctive relief against LaRosa.             A few months

after OSM filed its request with the DOJ, the Assistant Director

issued his decision in favor of OSM -- and against the Conservancy

-- on all counts.      First, the Assistant Director determined that

the enforcement action taken by OSM, i.e., seeking injunctive

relief   through     the   DOJ,   satisfied   OSM’s    obligations    to    the

Conservancy as a citizen complainant.              Second, the Assistant

Director decided that the Conservancy’s request for a second notice

of violation on the basis of LaRosa’s NPDES and CWA violations was

subsumed by the original Notice of Violation and Failure to Abate

Cessation Order issued by the Field Office.           Notwithstanding these

findings, the Assistant Director referred the NPDES and CWA issues


                                      5
to    WVDEP,   the   state    agency    responsible   for      NPDES   and     CWA

compliance.

      The   Conservancy      appealed    the   decision   of    the    Assistant

Director to the Board.           The Board, acting on behalf of the

Secretary, affirmed the decision for slightly different reasons

than those espoused by the Assistant Director.                 The Conservancy

then filed this action against the Secretary, petitioning the

district court for review of the Board’s decision.                The district

court granted summary judgment in favor of the Secretary, and the

Conservancy timely appealed to this Court.



                                        II

      We review the decision of the district court de novo.                  Dixon

v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002).                 Pursuant to the

Administrative Procedure Act (“APA”), we will affirm an agency

decision    unless   it   was   “arbitrary,     capricious,      an    abuse    of

discretion, or otherwise not in accordance with law.”                  5 U.S.C.

§ 706(2)(A).    Further, the APA mandates that we afford substantial

deference to an agency’s interpretation of its own regulations.

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).                    We

will not reverse any agency determination unless it is plainly

erroneous or inconsistent with the regulation being interpreted.

Id.   In reviewing the Board’s decision, we address in turn the two




                                        6
issues initially raised by the Conservancy in its request for

informal review submitted to the Assistant Director.



                                             A.

      The first issue raised in the Conservancy’s request for

informal review is whether seeking injunctive relief through the

DOJ   was     sufficient     to     satisfy       the   statutory   and    regulatory

obligations placed on OSM.            The Federal Regulations require OSM to

pursue appropriate enforcement action if a violation continues more

than 30 days after a notice of violation or a cessation order.                           30

C.F.R. § 845.15(b)(2). Such appropriate enforcement action must be

either   a    fine     up   to    $10,000    or    imprisonment     up    to     1    year;

revocation of relevant permits; or a request to the DOJ for an

action      seeking    injunctive      relief.          Id.   Though       OSM       sought

injunctive relief through the DOJ, the Conservancy argues that OSM

is required to pursue every alternative enforcement action until

abatement occurs.

      However, the Conservancy ignores an essential predicate to OSM

taking       any   enforcement        action       whatsoever.           Specifically,

§ 845.15(b)(2) presupposes that OSM properly issued a notice of

violation or a cessation order.                   Of course, OSM cannot properly

issue    a    notice    of       violation    or    a   cessation    order       without

jurisdiction over the alleged violator.                  Thus, if OSM did not have

jurisdiction to issue the original Notice of Violation and Failure


                                             7
to Abate Cessation Order, it also necessarily lacks jurisdiction to

take any enforcement action with respect to LaRosa’s alleged

violations.

     We hold that the issue of the adequacy of the enforcement

action pursued by OSM is not ripe for review.   “Ripeness depends on

‘the fitness of the issues for judicial decision and the hardship

to the parties of withholding court consideration.’”      Bituminous

Coal Operators’ Ass’n v. Secretary of the Interior, 547 F.2d 240,

244 (4th Cir. 1977) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,

149 (1967)).   A necessary element of fitness for judicial decision

is the finality of the agency decision below.         West Virginia

Highlands Conservancy, Inc. v. Babbitt, 161 F.3d 797, 800 (4th Cir.

1998).   Such an agency decision must not be contingent upon a

future uncertainty or intervening agency ruling.    Id.

     The issue of whether OSM should have pursued alternative

enforcement action against LaRosa is plainly contingent upon a

currently undecided matter.    LaRosa’s applications for review of

the jurisdictional bases for the Notice of Violation and Failure to

Abate Cessation Order were still pending at the time the Board

issued its decision.    Furthermore, according to counsel for the

Conservancy at oral argument, LaRosa continues to contest the Field

Office’s jurisdiction over the mine. If an appropriate agency body

determines that the Field Office lacked jurisdiction to issue the

original Notice of Violation and Failure to Abate Cessation Order,


                                 8
then       OSM’s   jurisdiction   to    pursue    any   enforcement      action   –-

alternative or otherwise –- does not exist.                 Thus, the outcome of

LaRosa’s      ongoing   jurisdictional         challenge    before   the   hearings

division could make the decision of the Board advisory. Therefore,

the agency decision below is not final, and the outcome of the

jurisdictional        dispute   could     effectively      moot   the   controversy

before this Court.         Accordingly, the matter is not ripe for our

review.



                                          B.

       The second issue raised in the Conservancy’s request for

informal       review    is     whether     additional      alleged     violations

necessitated OSM’s issuing another notice of violation to LaRosa.3

The Conservancy noted two additional grounds that it believed

warranted a second notice of violation: (1) LaRosa’s failure to

maintain a NPDES permit, as required by section 402 of the CWA, 33

U.S.C. § 1342; and (2) LaRosa’s failure to monitor and report

ongoing water discharges in violation of section 308 of the CWA, 33

U.S.C. § 1318.          Though the Assistant Director believed these

violations were “effectively subsumed under” the original Notice of



       3
      Although the district court’s order only briefly addressed
it, this issue was implicitly resolved against the Conservancy when
the district court granted summary judgment entirely in favor of
the Secretary. Further, because the Assistant Director referred
this matter to state authorities, OSM’s jurisdiction is not at
issue. Thus, this issue is ripe for our review.

                                           9
Violation discussed above, he nonetheless referred the alleged

additional violations to WVDEP, which administers NPDES compliance

in   West   Virginia.     J.A.    61.         The   Board   concluded   that   the

additional allegations made by the Conservancy, if true, were not

subsumed by the original Notice of Violation. However, because the

Board expressed uncertainty as to whether LaRosa had complied with

the relevant NPDES and CWA requirements, it affirmed the Assistant

Director’s decision to refer the matter to WVDEP.

      On appeal, neither party contests the assumptions of the

Assistant Director and the Board that WVDEP oversaw these aspects

of NPDES and CWA compliance in West Virginia.                    Because WVDEP

administered these programs, neither the Assistant Director nor the

Board was in a position to determine whether LaRosa had complied

with the relevant regulations. Therefore, we hold that the Board’s

decision    to   affirm   the    Assistant      Director’s    referral   to    the

appropriate state authorities is not “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”                  5

U.S.C. § 706(2)(A).



                                        III

      Accordingly, we affirm summary judgment on the issue relating

to referral of the NPDES and CWA violations to WVDEP.               However, we

vacate summary judgment on the issue relating to OSM’s pursuit of

appropriate enforcement action against LaRosa, and we remand the


                                        10
case to the district court with instructions to dismiss this claim

because it is not ripe for review.



                AFFIRMED IN PART AND VACATED AND REMANDED IN PART




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