Appeal from the United States District Court for the Southern District of Illinois, Benton Division. Nos. 82 C 4234 and 82 C 4359-Kenneth J. Meyers, Magistrate.
Before ESCHBACH and FLAUM, Circuit Judges, and DOYLE, Senior District Judge.*fn*
The Department of Interior (Department) instituted these two enforcement actions against appellant-Kennedy to collect certain fees and a fine levied under authority of the Surface Mining Control and Reclamation Act (SMCRA). The parties stipulated below to disposition by the magistrate, who ruled in the Department's favor after a bench trial. Kennedy's sole contention on appeal is that the SMCRA does not apply to his activities, and hence the Department lacked authority to regulate his conduct. Assuming he was engaged in "surface coal mining operations" within the meaning of the SMCRA, Kennedy does not dispute the validity of the judgments below. We affirm.
The facts are undisputed. In 1975 Kennedy bought a piece of property containing an abandoned coal mine and some old buildings. The former coal operation had generated considerable refuse that remained on the premises, some of which was heaped in two large "gob piles" and the rest of which was located behind five retaining walls. The refuse material fit the technical definition of coal, since it contained more than fifty percent carbonaceous material.
Kennedy intended to reclaim the land in order to construct a shopping center. Over several years, he removed coal refuse located behind the retaining walls and sold it to a power company. Kennedy removed the refuse by loading it onto trucks, using standard earthmoving equipment; he never dug below the ground surface to obtain coal.
In 1979 a Department inspector appeared at the property to examine Kennedy's operation. He was refused admission to the site, and consequently the Department assessed a fine of $2000 against Kennedy. The Department also assessed against Kennedy reclamation fees under the SMCRA totaling $39,000. The Department arrived at the amount based on the tonnage record of the power company that purchased the material from Kennedy. Kennedy neither contested the assessments administratively nor paid the fine or fees.
The narrow question presented is whether the mere removal of coal from refuse piles, when no below-surface activity occurs, constitutes a "surface coal mining operation" under the SMCRA. If it does, then Kennedy is liable for the fees and fine; if not, the Department is without authority to inspect or regulate his premises and the assessments are invalid. We agree with the magistrate's conclusion that Kennedy's activities were covered by the SMCRA.
The Act provides that "all operators of coal mining operations subject to the provisions of this Act shall pay to the Secretary of the Interior . . . a reclamation fee of 35 cents per ton of coal produced by surface coal mining." 30 U.S.C. § 1232(a). The Act defines "surface coal mining operations" as:
activities conducted on the surface of lands in connection with a surface coal mine . . . .Such activities include excavation for the purpose of obtaining coal including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, loading of coal for interstate commerce at or near the mine site . . . .
Section 1278 of the Act specifically excludes three categories of activities from its application:
(1) the extraction of coal by a landowner for his own noncommercial use from land ...