Unpublished Disposition, 914 F.2d 263 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 263 (9th Cir. 1989)

STORM KING COAL MINING COMPANY, INC., Jack H. Carlson,Victor C. Carlson, dba The Divide Coal Mining Co.,Plaintiffs-Appellants,v.Dennis HEMMER, Gary Amestoy, Kit Walther, Defendants-Appellees.

No. 89-35129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1990.Decided Sept. 13, 1990.

Before WALLACE, SKOPIL and BRUNETTI, Circuit Judges.


MEMORANDUM* 

Appellants Storm King Coal Mining Company, Inc. ("Storm King") and Jack H. Carlson and Victor C. Carlson, doing business as Divide Coal Mining Co. (the "Carlsons"), each brought 42 U.S.C. § 1983 actions against three employees of the Montana Department of State Lands. Appellants alleged that the three appellees had negligently deprived them of their property interest in Surface Mining Permit 78006R without due process of law, in violation of 42 U.S.C. § 1983. The actions were consolidated. On January 12, 1989, the district court granted summary judgment in favor of appellees. We affirm.

STATEMENT OF FACTS

The Divide Coal Mine is a strip mine operation located in the Bull Mountains near Roundup, Montana. It is operated by appellants Divide and Storm King.

The appellees in this action are Dennis Hemmer, the Commissioner of the Montana Department of State Lands (the "Department"); Gary Amestoy, the Reclamation Division Administrator for the Department; and Kit Walther, another Department employee.

On August 25, 1972, the Department granted the first permit to operate the mine to Divide pursuant to the open Cut or Strip Mine Reclamation Act of 1971. On September 29, 1978, Divide obtained Permit No. 78006. The reclamation bond for this permit was set at $33,500.00.

On August 3, 1977, Congress enacted the Surface Mining Control and Reclamation Act ("SMCRA"), which required all states to adopt legislative acts as stringent and comprehensive as the SMCRA or to be preempted from regulating coal mining on lands in their jurisdictions. 30 U.S.C. § 1253. In 1980, Montana modified its regulatory program to comply with the SMCRA. On April 1, 1980, the Secretary of Interior approved Montana's modified regulatory program as complying with SMCRA.

On September 29, 1983, Permit No. 78006, issued for a term of five years, came up for renewal. The state issued Permit No. 78006R. However, in light of the stringent regulations brought about by the SMCRA, the reclamation bond required for Permit No. 78006R was increased to $348,342.50.

Approximately one month later, the Department recalculated the reclamation bond based on current disturbed acreage. In a letter dated November 13, 1984, the Department notified Storm King Coal Mining Company that the bond amount was reduced to $273,335.00.

It is not clear whether the Carlsons or Storm King utilized the procedure set out in ARM 26.4.413 to appeal the bond amount within 30 days of the issuance of Permit No. 78006R, or the Department's final decision of November 13, 1984. Appellants have submitted the Affidavit of L.R. Bretz contending that appeals were properly requested. Appellees provide several affidavits contradicting this assertion. No hearing was held.

On December 20, 1984, the department set January 25, 1985, as the deadline for submitting the $273,335.00 reclamation bond. Appellants did not submit the bond within this time period.

Over the next several months, appellants and the Department discussed the financial problems of the mining companies and their difficulty in posting the reclamation bond in the amount required by the permit. On May 13, 1985, the Department received notice from Western Casualty and Surety Company that the Carlsons' $33,500.00 reclamation bond for Permit No. 78006 was cancelled effective May 10, 1985. Under the terms of the bond, a 30 day notice was required for cancellation.

On May 15, 1985, Gary Amestoy spoke with Jerry Prouse of Storm King and Jack Carlson of Divide and gave them both a copy of Western Casualty and Surety Company's bond cancellation notice which prospectively cancelled the only existing reclamation bond for the Divide Mine, the $33,500.00 issued for Permit No. 78006. On May 20, 1985, Jerry Prouse of Storm King sent a telegram to Gary Amestoy that Storm King was voluntarily suspending all its operations at the Divide Mine.

On June 7, 1985, Gary Amestoy traveled to the Divide Mine to personally serve a suspension order for Permit No. 78006R upon Jack Carlson and Jerry Prouse of Storm King, based upon the fact that neither the Carlsons nor Storm King had any effective reclamation bond on file with the Department which would cover future mining activities after June 7, 1985. The suspension order would terminate automatically if either the Carlsons or Storm King submitted a reclamation bond in the amount of $273,335.00. This bond was never submitted.

According to the terms of the suspension order, both Storm King and the Carlsons had 30 days to appeal the June 7, 1985, suspension of Permit No. 78006R. The Carlsons never appealed the suspension. Storm King appealed the suspension on July 3, 1985.

On July 10, 1985, Kit Walther issued a cessation order for the failure of Storm King to comply with notices of noncompliance and orders of abatement.

On July 17, 1985, the department's legal counsel wrote to L.R. Bretz of Storm King to determine whether Storm King wanted a formal or informal hearing pursuant Section 2-4-603. Storm King did not respond to this inquiry, or to later inquiries.

On July 10, 1985, Kit Walther, acting reclamation division administrator, acting upon the advice of department counsel, issued an Order of Cessation for the failure of Storm King to comply with several notices of noncompliance and Orders of Abatement.

On July 23, 1986, Dennis Hemmer appointed a hearing examiner to consider alleged violations at the Divide Mine. After discovery had been completed and a new hearing examiner had been appointed, a hearing was held in Billings, Montana, on September 15, 16 and 17, 1987.

Appellants then brought this Sec. 1983 action in the district court. The court granted summary judgment in favor of appellees. At the time of summary judgment, no decision had been issued by the hearing examiner from the administrative hearing.

Both Storm King and the Carlsons appeal.

DISCUSSION

Section 1983 contains no state-of-mind requirement other than that necessary to state a violation of the underlying constitutional right. Daniels v. Williams, 474 U.S. 327, 330 (1986). The Due Process Clause, upon which the present action is based, is "not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Id. at 328 (emphasis in original). Thus, a Section 1983 claim based on a due process violation must allege more than simply negligence.

Storm King's complaint contains only allegations that appellees' acts of "negligence and inattention" deprived it of the procedural due process required under these circumstances; the complaint does not allege any reckless or deliberate misconduct. Therefore, Storm King has failed to state a cause of action, and the district court properly granted summary judgment against Storm King.

The Carlsons' complaint does allege that appellees' actions were "willfully oppressive" and "calculated to effect the economic destruction" of their property rights. However, the Carlsons have not produced any "significant probative evidence" to support these allegations. See T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). The Carlsons may have produced evidence sufficient to raise an issue of fact as to whether they filed a request for a hearing on the amount of the reclamation bond for Permit No. 78006R. However, they have not produced any significant probative evidence showing that the appellees deliberately or recklessly ignored the alleged request for a hearing. The appellees allowed the Carlsons to continue mining for several months without a reclamation bond in the amount required under the SMCRA. The appellees did not issue a suspension order until after the appellants had allowed their $33,500.00 reclamation bond to lapse, so that they were operating with no reclamation bond at all.1  Under these circumstances, the Carlsons have not produced evidence showing more than negligence. The nonmoving party may not avoid summary judgment by relying on the "mere allegations" in the pleadings. Id. Thus, the district court properly granted summary judgment against the Carlsons.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

 1

We do not address the issue of whether in fact the appellants were unconstitutionally deprived of a property interest. For purposes of discussion we assume that Permit No. 78006 with the $33,500.00 reclamation bond constituted a property interest, but once the bond was canceled, if there was a loss of a property interest, it was not due to the deliberate indifference or actions of the appellees

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