Opinion
Argued February 7, 1980
April 25, 1980.
Surface mining — Permits — Surface Mining Conservation and Reclamation Act, Act 1945, May 31, P.L. 1198 — Mandamus — Discretion — Mootness — Environmental Hearing Board.
1. Where the Surface Mining Conservation and Reclamation Act, Act 1945, May 31, P.L. 1198 vests considerable discretion in the Department of Environmental Resources with respect to the granting of variances to requirements for surface mining permits, and where the Department has exercised its discretion to deny the variances, an action in mandamus is rendered moot. [24-5]
2. Once an official or agency has exercised its discretion, a party who is dissatisfied with the result may not seek to compel a different result through mandamus; for mandamous does not lie to review a discretionary act, nor to compel a particular result in a process involving the exercise of discretion. [25]
3. One dissatisfied with a decision of the Department of Environmental Resources taken under the Surface Mining Conservation and Reclamation Act, Act 1945, May 31, P.L. 1198, has recourse by appeal to the Environmental Hearing Board; an action in mandamus will not be permitted. [25]
Argued February 7, 1980, before Judges BLATT, MacPHAIL and WILLIAMS, JR., sitting as a panel of three.
Original jurisdiction, No. 109 C.D. 1979, in case of Daset Mining Corporation, Petitioner v. J. Anthony Ercole, Director, Department of Environmental Resources, Surface Mining Conservation and Reclamation, and the Commonwealth of Pennsylvania, Department of Environmental Resources. Petition for review in the nature of an action for mandamus filed in the Commonwealth Court of Pennsylvania. Respondent filed preliminary objections and a motion to dismiss. Held: Motion to dismiss granted.
Thomas J. Herder, with him John R. McGinley, Grogan, Graffam, McGinley, Solomon Lucchino, for petitioner.
Gary Waxman, Assistant Attorney General, for respondent.
Daset Mining Corporation (Daset) has filed a Petition for Review in the nature of an Action for Mandamus seeking to compel the respondents, J. Anthony Ercole and the Commonwealth of Pennsylvania, Department of Environmental Resources (DER), to issue two surface mining permits under the Surface Mining Conservation and Reclamation Act (Act). Presently before us are Preliminary Objections and a Motion to Dismiss for Mootness filed by DER.
Act of May 31, 1945, P.L. 1198, as amended, 52 P. S. § 1396.1 et seq. (Act).
In June 1977 Daset submitted applications for a surface mining permit to DER which then requested Daset to submit a bond as part of the application process. Daset complied, but when DER did not act on the permit applications, Daset filed two actions with the Environmental Hearing Board (Board) seeking the issuance of the permits. While these actions were pending before the Board, DER denied Daset's initial applications on July 13, 1979. From these denials, Daset took two additional appeals to the Board. All four actions are still pending before the Board.
Pursuant to Section 4(b) of the Act, 52 P. S. § 1396.4(b).
In support of its Motion to Dismiss for Mootness, DER contends that the decision to issue or refuse to issue the permits in question called for the exercise of discretion on its part and that, while mandamus will lie to compel an administrative agency to exercise its discretion, once it has done so mandamus is no longer a proper action. We agree.
One of the permit applications in question required an assessment by DER as to whether or not a variance from the distance limitations set forth in the Act could or should be granted. This determination vests considerable discretion in DER because the relevant section of the Act provides that, "The secretary may grant operators variances to the distance requirements herein established where he is satisfied that special circumstances warrant such exceptions and that the interest of the public and landowners affected thereby will be adequately protected." Section 4.2(c) of the Act, 52 P. S. § 1396.4 (b)(c) (emphasis added). As we stated in Styers v. Wade, 30 Pa. Commw. 38, 41, 372 A.2d 1236, 1238 (1977), aff'd, 478 Pa. 631, 387 A.2d 666 (1978), "An official may have an absolute duty to exercise his discretion, in which case mandamus will lie, but only to compel the exercise of the discretion." It is clear in the instant case that, because DER has already exercised its discretion by acting on the permits, Daset's request has been rendered moot.
It should be noted that Daset argues in response to DER's motion that its action in mandamus does not seek to compel the DER merely to act upon the permits but rather to issue the permits. If this is the nature of Daset's request, it is clearly improper.
As we also stated in Styers, supra:
[O]nce the official or agency has exercised its discretion, a party who is dissatisfied with the result may not seek to compel a different result through mandamus; for mandamus does not lie to review a discretionary act, nor to compel a particular result in a process involving the exercise of discretion.
30 Pa. Commw. at 42, 372 A.2d at 1238.
If Daset was dissatisfied with the decision of DER, its proper recourse was to file an appeal with the Environmental Hearing Board, which it did. Its attempt to short-circuit that process by bringing the present action cannot be permitted.
Also pursuant to Section 4(b) of the Act, 52 P. S. § 1396.4(b).
The DER's motion to dismiss is granted.
ORDER
AND NOW, this 25th day of April, 1980, the Motion of the Department of Environmental Resources to dismiss the petition of Daset Mining Corporation is hereby granted.
President Judge BOWMAN did not participate in the decision in this case.