Venue - Appeal from Order of the Alabama Surface Mining Commission

Ex parte Alabama Surface Mining Commission, [Ms. 1170222, 1170223, Jan. 11, 2019] __ So. 3d __ (Ala. 2019). The Court (Sellers, J.; Stuart, C.J., Bolin, Main, and Mendheim, JJ. concur; Parker, Shaw, and Bryan, JJ., dissent) issues a writ of mandamus to the Jefferson Circuit Court directing it to transfer to the Walker Circuit Court this judicial review proceeding challenging the Alabama Surface Mining Commission’s (the Commission) issuance of a surface-coal mining permit on property located in northern Jefferson County.

The majority held that venue was controlled by a 2015 amendment to § 9-16-79, Ala. Code 1975 providing that venue for a proceeding for judicial review of a final Commission decision is “in the circuit court of the county in which the Commission maintains its principal office.” Ms. *11-12. While it was undisputed that the Commission maintains its principal business in Walker County, the plaintiffs contended that the amendment to § 9-16-79 did not apply to the judicial review proceeding they filed in 2017 because the amendment had not yet been approved by the Secretary of the Interior as required by the Federal Surface Mining Act. Ms. *12. The Court held that the venue provision became effective upon its passage by the Alabama Legislature because “the 2015 amendment did not include any ‘changes to law or the regulations that make up the approved state program.’ See 30 CFR § 732.17(g).” Ms. *15. The Court held “the mere fact that this venue provision is codified within the Alabama Surface Mining Act, instead of elsewhere in the Alabama Code, does not remove the venue provision from state jurisdiction and place it in the realm of [federal] oversight.” Ms. *17.

Justice Shaw’s dissent, joined by Justice Bryan, would have denied the petition because the amendment to the Alabama Surface Mining Act adding the venue provision had been submitted to but not yet approved by the federal Office of Surface Mining Reclamation and Enforcement. Ms. *28-29. Justice Shaw disagreed with the majority concluding that “[i]t thus cannot be said that the judicial-review process is not part of the state program” requiring approval by the OSM. Ms. *32.

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