Ohio River Valley Environmental Coalition, Inc. v. Timmermeyer

Filed: June 16, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2298
(CA-00-58-3)
Ohio River Valley Environmental Coalition,
Inc., et al.,
Plaintiffs - Appellees,
versus
Stephanie R. Timmermeyer, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed June 2, 2003, as follows:
On the cover sheet, section 2 -- the caption is corrected to
(1) add “Citizens Coal Council” to the list of Plaintiffs-
Appellees, and (2) show “Stephanie R. Timmermayer, Acting Secre-
tary” as “Stephanie R. Timmermeyer, Secretary.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
OHIO RIVER VALLEY ENVIRONMENTAL
COALITION, INCORPORATED; HOMINY
CREEK PRESERVATION ASSOCIATION,
INCORPORATED; CITIZENS COAL
COUNCIL,
Plaintiffs-Appellees,
and
GREEN VALLEY COAL COMPANY,
Defendant-Appellee,
MINGO LOGAN COAL COMPANY; COAL
MAC, INCORPORATED,
Intervenor-Defendants- No. 01-2298
Appellees,
v.
STEPHANIE R. TIMMERMEYER,
Secretary of the West Virginia
Department of Environmental
Protection,
Defendant-Appellant,
and
MICHAEL C. CASTLE,
Defendant.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CA-00-58-3)
Argued: February 24, 2003
Decided: June 2, 2003
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
____________________________________________________________
Dismissed and remanded by unpublished per curiam opinion.
____________________________________________________________
COUNSEL
ARGUED: Thomas Lee Clarke, Office of Legal Services, DIVISION
OF ENVIRONMENTAL PROTECTION, Charleston, West Virginia,
for Appellant. Walton Davis Morris, Jr., MORRIS LAW OFFICE,
P.C., Charlottesville, Virginia, for Appellees. ON BRIEF: Benjamin
L. Bailey, Brian A. Glasser, BAILEY & GLASSER, L.L.P., Charles-
ton, West Virginia, for Appellant. Theodore J. Korth, NELSON &
KORTH, Charlottesville, Virginia; Charles M. Kincaid, Sr., Hunting-
ton, West Virginia, for Appellees.
____________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
____________________________________________________________
OPINION
PER CURIAM:
Stephanie R. Timmermayer, Acting Secretary of the West Virginia
Department of Environmental Protection (the WVDEP Secretary),
appeals the district court's ruling that a claim brought by Ohio River
Valley Environmental Coalition, Inc. and Hominy Creek Preservation
Association, Inc. (collectively, Ohio River), under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.A.
§§ 1201-1328 (West 1986 & Supp. 2003), is not barred by the Elev-
enth Amendment. Because the WVDEP Secretary's appeal is directed
toward the claim that Ohio River asserted in its Third Amended Com-
plaint, which was superseded prior to the initiation of this appeal by
2
a Fourth Amended Complaint, we dismiss his appeal and remand the
case to the district court for further proceedings.
I.
On January 20, 2000, Ohio River filed a complaint against the
WVDEP Secretary in the United States District Court for the South-
ern District of West Virginia.1 In its complaint, Ohio River sought an
order defining and compelling performance of certain mandatory,
non-discretionary duties under the SMCRA, the federal regulations
that implement the SMCRA, and West Virginia's federally approved
state regulatory program incorporating the SMCRA's requirements.2
Specifically, Ohio River alleged that the WVDEP Secretary impru-
dently issued permits for new or significantly revised mining activity
without, among other things, performing required cumulative hydro-
logic impact assessments (CHIAs) and that a CHIA Guidance Memo-
randum issued by the WVDEP Secretary constituted an improper
amendment to the approved West Virginia program.
The WVDEP Secretary moved to dismiss Ohio River's claims for
lack of subject matter jurisdiction arguing, among other things, that
Ohio River's claims are barred by the Eleventh Amendment because
they arise under state law rather than under the SMCRA or its imple-
menting regulations. At the same time, the WVDEP Secretary filed
a motion to dismiss for failure to state a claim arguing, among other
things, that the CHIA Guidance Memorandum does not constitute a
change in the approved West Virginia program. The district court
denied both motions.
____________________________________________________________
1
On March 23, 2000, Ohio River filed an Amended Complaint. Ohio
River then filed a motion for leave to file a Second Amended Complaint,
however, before this motion was resolved Ohio River submitted a pro-
posed Third Amended Complaint. On August 3, 2000, the district court
granted leave for Ohio River to file its Third Amended Complaint.
2
For a detailed description of how, under the SMCRA, "responsibility
for the regulation of surface coal mining in the United States is shared
between the U.S. Secretary of the Interior and State regulatory authori-
ties," see Bragg v. West Virginia Coal Association, 248 F.3d 275, 288-89
(4th Cir. 2001).
3
On May 2, 2001, the WVDEP Secretary again challenged the juris-
diction of the district court by moving the court to reconsider its
denial of his motion to dismiss on Eleventh Amendment grounds in
light of our intervening decision in Bragg v. West Virginia Coal Asso-
ciation, 248 F.3d 275 (4th Cir. 2001). In Bragg, we held that when
a State's program implementing the SMCRA's "minimum national
standards" has been approved by the Secretary of the Interior, the fed-
eral SMCRA provisions regarding the regulation of surface coal min-
ing "drop out" and the State's laws become the sole operative law. Id.
at 295. Because the Eleventh Amendment bars actions seeking to
compel a state officer to adhere to state law, any action alleging the
violation of surface mining standards in a federally approved state
program must be dismissed. Id. at 298. Bragg noted, however, that
not all of the SMCRA's provisions "drop out." Id. at 295. Specifi-
cally, the SMCRA's "structural provisions creating the facility
through which the State can attain and lose its primacy status remain
directly operative." Id. The WVDEP Secretary argued that because
his duties to perform a CHIA arise exclusively under state law and
state regulations, under Bragg the district court had no jurisdiction to
consider Ohio River's claims.
Ohio River agreed that Bragg compelled the district court to dis-
miss all of its claims, with one exception. The exception, according
to Ohio River, is its claim that the WVDEP Secretary, by issuing the
CHIA Guidance Memorandum, violated his duty under 30 C.F.R.
§ 732.17(g) to obtain approval from the Director of the Office of Sur-
face Mining Reclamation and Enforcement (OSM) before amending
West Virginia's approved state plan. Ohio River filed a motion to
amend its complaint to "clarify" this claim and add the OSM as a
party.
On September 20, 2001, the district court dismissed all of Ohio
River's claims except the claim that the WVDEP Secretary unlaw-
fully amended the approved West Virginia program. The district court
concluded that this claim is not barred under Bragg because Ohio
River alleged a violation of the SMCRA's "structural provisions."
(J.A. at 401-402.) The district court also reiterated its conclusion that
there is federal subject matter jurisdiction over Ohio River's claim
that the WVDEP Secretary violated 30 C.F.R. § 732.17(g) and that
Ohio River has stated a valid claim. In the same order, the district
4
court granted Ohio River's motion for leave to amend its complaint.
Ohio River's Fourth Amended Complaint was filed on September 21,
2001. On October 19, 2001, the WVDEP Secretary filed a notice of
appeal from the district court's order denying in part his May 2001
motion to dismiss. We have jurisdiction to review the district court's
denial of the WVDEP Secretary's Eleventh Amendment immunity
claim under the collateral order doctrine.3 See Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)
(holding that "States and state entities that claim to be ``arms of the
State' may take advantage of the collateral order doctrine to appeal
a district court order denying a claim of Eleventh Amendment immu-
nity").
II.
On appeal, the WVDEP Secretary argues that Ohio River's claim
is barred by the Eleventh Amendment. Notwithstanding the fact that
Ohio River filed a Fourth Amended Complaint, the WVDEP Secre-
tary's appellate arguments address Ohio River's claim as articulated
in its Third Amended Complaint. Thus, as a threshold matter, we
must determine which complaint has legal effect.
We normally do not face this issue because appeals are generally
taken well after any amended pleadings are filed. District courts, how-
ever, must address the issue of which complaint has legal effect when
determining to which complaint a subsequent motion must be
directed. "As a general rule, an amended pleading ordinarily super-
sedes the original and renders it of no legal effect." Young v. City of
Mount Rainer, 238 F.3d 567, 572 (4th Cir. 2001) (internal quotation
marks and citation omitted); see also 6 Charles Alan Wright et al.,
Federal Practice & Procedure § 1476 (2d ed. 1990) ("A pleading that
has been amended under Rule 15(a) supersedes the pleading it modi-
fies and remains in effect throughout the action unless it subsequently
is modified. Once an amended pleading is interposed, the original
____________________________________________________________
3
On September 17, 2002, this court ruled that the collateral order doc-
trine does not apply to the district court's ruling that there is federal sub-
ject matter jurisdiction for Ohio River's challenge to the CHIA Guidance
Memorandum as violative of 30 C.F.R. § 732.17(g) and accordingly dis-
missed that portion of the WVDEP Secretary's appeal.
5
pleading no longer performs any function in the case and any subse-
quent motion made by an opposing party should be directed at the
amended pleading." (footnotes omitted)). While ordinarily this rule
simply "establishes to which complaint opposing parties should direct
any subsequent motion," Davis v. TXO Prod. Corp., 929 F.2d 1515,
1517 (10th Cir. 1991), it appears to have broad application. It pro-
vides that pleadings that have been amended have no legal effect and
thus no longer perform any function in the case. We see no reason,
therefore, why this rule should not determine to which complaint an
interlocutory appeal must be directed.
Indeed, there are compelling reasons in this case for adhering to the
rule and treating the Third Amended Complaint as superseded by the
Fourth Amended Complaint. Ohio River's purpose for filing its
Fourth Amended Complaint, after all, was "to clarify and characterize
as pattern and practice the one existing claim against [the WVDEP
Secretary] that clearly arises under federal law and thus may not be
dismissed pursuant to [Bragg]." (J.A. at 279.) Also, because the dis-
trict court granted Ohio River's motion to amend in the same order
as it denied the WVDEP Secretary's motion to dismiss, allowing the
WVDEP Secretary to direct his appeal against Ohio River's claim in
the Third Amended Complaint could, in effect, reverse the district
court's decision to allow Ohio River to file a Fourth Amended Com-
plaint to clarify the claim, a decision that has not been appealed.
Moreover, because the district court considered the WVDEP Secre-
tary's motion to dismiss the Third Amended Complaint pursuant to
Bragg at the same time as it considered Ohio River's motion to file
a Fourth Amended Complaint, if we were to review the district
court's order, it would be inappropriate to ignore the Fourth Amended
Complaint. We therefore conclude that, prior to the initiation of this
appeal, the Third Amended Complaint was superseded by the Fourth
Amended Complaint.4
____________________________________________________________
4
While there are exceptions to the general rule, we conclude that none
apply in this case. For example, if the Fourth Amended Complaint had
been filed while the WVDEP Secretary's appeal was pending, we could,
to avoid "exalt[ing] form over substance," consider the appeal as being
addressed to the Fourth Amended Complaint if that complaint contained
the same defect raised in the WVDEP Secretary's appeal. 6 Charles Alan
Wright et al., Federal Practice & Procedure § 1476 (2d ed. 1990 &
6
III.
Because Ohio River's Fourth Amended Complaint superseded the
Third Amended Complaint, the WVDEP Secretary's appellate argu-
ments address a claim that no longer has any legal effect. The
WVDEP Secretary's appeal is therefore dismissed as moot and this
case is remanded to the district court for further proceedings.
DISMISSED AND REMANDED
____________________________________________________________
Supp. 2003). The Fourth Amended Complaint, however, was filed before
the WVDEP Secretary filed his appeal. Moreover, even if we could
apply this exception, we would decline because the Fourth Amended
Complaint, which was filed in response to Bragg, expands the claim that
was asserted in the Third Amended Complaint, a point conceded by the
WVDEP Secretary at oral argument when he stated that if the claim in
the Third Amended Complaint were dismissed he would assert his other
defenses against the residual allegations in the Fourth Amended Com-
plaint. By directing his appeal to the Third Amended Complaint, the
WVDEP Secretary's appellate arguments do not address the essential
question of whether Ohio River's expanded claim in the Fourth
Amended Complaint is barred under Bragg.
7