A. Except as provided in subsection B of this section, any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this act:

1. Against any governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution of the United States which is alleged to be in violation of the provisions of this act or of any rule, regulation, order or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to this act; or

2. Against the Department to the extent permitted by the Eleventh Amendment to the Constitution of the United States where there is alleged a failure of the Department to perform any act or duty under this act which is not discretionary with the Department.

B. No action may be commenced:

1. Under paragraph 1 of subsection A of this section:

a.prior to sixty (60) days after the plaintiff has given notice in writing of the violation to the Department, and to any alleged violator, or

b.if the Department has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with the provisions of this act, or any rule, regulation, order or permit issued pursuant to this act, but in any such action in a court of this state any person may intervene as a matter of right; or

2. Under paragraph 2 of subsection A of this section prior to sixty (60) days after the plaintiff has given notice in writing of such action to the Department, in such manner as the Department shall by regulation prescribe, except that such action may be brought immediately after such notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.

C. Any action respecting a violation of this act or the regulations thereunder may be brought only in the judicial district in which the surface coal mining operation complained of is located. In such action under this section, the Department, if not a party, may intervene as a matter of right.

D. The court, in issuing any final order in any action brought pursuant to subsection A of this section, may award costs of litigation, including attorney and expert witness fees, to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security.

E. Nothing in this section shall restrict any right which any person, or class of persons, may have under any statute or common law to seek enforcement of any of the provisions of this act and the regulations thereunder, or to seek any other relief including relief against the Department.

F. Any person who is injured in his person or property through the violation by any operator of any rule, regulation, order or permit issued pursuant to this act may bring an action for damages, including reasonable attorney and expert witness fees, only in the judicial district in which the surface coal mining operation complained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under Oklahoma Workers' Compensation laws.

Amended by Laws 1983, c. 39, § 2, emerg. eff. April 20, 1983.