Amerikohl Min., Inc. v. U.S., 89-1522

• Decision Date: 10 April 1990
• Docket Number: No. 89-1522,89-1522
• Citation: 899 F.2d 1210
• Parties: AMERIKOHL MINING, INC., Al Hamilton Contracting and Supply Co., Inc., and Central Pennsylvania Coal Company, Inc., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1210

899 F.2d 1210

AMERIKOHL MINING, INC., Al Hamilton Contracting and Supply

Co., Inc., and Central Pennsylvania Coal Company, Inc., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.

No. 89-1522.

United States Court of Appeals, Federal Circuit.

April 10, 1990.

Donald W. Howser, Pittsburgh, Pa., argued for plaintiffs-appellants. With him on the brief was Frank Mast.

Andrew C. Mergen, Dept. of Justice, of Washington, D.C., argued for defendant-appellee. Richard B. Stewart, Asst. Atty. Gen., John A. Bryson, Celia Campbell-Mohn and Angus E. Crane, Dept. of Justice, of Washington, D.C., were on the brief for defendant-appellee.

Before MAYER, Circuit Judge, BALDWIN, Senior Circuit Judge, and MILLS, Judge. ^*

BALDWIN, Senior Circuit Judge.

Amerikohl Mining, Inc., Al Hamilton Contracting and Supply Co., Inc. and Central Pennsylvania Coal Company, Inc., ("Amerikohl") appeal the decision of the United States Claims Court, Nos. 433-88L, 441-88L and 442-88L, dismissing the appellants' consolidated complaints seeking reimbursement for reclamation fees allegedly paid in excess of the statutory requirement under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. 1201, et seq. (1977), for lack of subject matter jurisdiction. See Amerikohl Min., Inc. v. United States, 16 Cl.Ct. 623 (1989). We affirm.

BACKGROUND

In 1977, Congress promulgated the SMCRA to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. Sec. 1202(a) (1982). Among other things, the SMCRA requires coal mining operators to restore the mined land to a condition which supports the land's original or better use, prevents erosion, preserves topsoil and supports re-vegetation. 30 U.S.C. Sec. 1265(b) (1982). All operators subject to the statute are required to pay a reclamation fee to the Secretary of Interior ("Secretary") for every ton of coal mined, in order to fund the restoration of mined lands. ¹ 30 U.S.C. Sec. 1231 (1982). The original regulation governing the payment of the reclamation fee provided in part that:

(a) The operator shall pay a reclamation fee on each ton of coal produced for sale, transfer, or use, including the products of in situ mining.

(b) The fee shall be determined by the weight and value at the time of initial bona fide sale, transfer of ownership, or use by the operator.

30 C.F.R. 837.11 (1978); 42 Fed.Reg. 62,639, 62,715 (Dec. 13, 1977) (emphasis added).

In 1981, the Secretary revised the regulation in order "to clarify the point in time of fee determination, as well as the value and weight parameters for calculating reclamation fees...." 47 Fed.Reg. 28,574, 28,577 (June 30, 1982). The revised regulation stated that:

(3) The weight of each ton shall be determined by the actual gross weight of the coal.

(i) Impurities, including water, that have not been removed prior to the time of initial bona fide sale, transfer of ownership, or use by the operator shall not be deducted from the gross weight.

30 C.F.R. Sec. 870.12(b)(3)(i) (1983) (emphasis in original).

The Secretary further amended this regulation in 1988 to allow for the deduction of the excess moisture from the gross weight of coal mined and sold after July 1, 1988. ²

This regulation was explicitly not made retroactive. 53 Fed.Reg. 19,718, 19,720.

Amerikohl filed complaints in the United States Claims Court against the United States alleging the imposition of an erroneous assessment of fees under 30 U.S.C. Sec. 1232(a) ³ and the rules promulgated thereunder, 30 C.F.R. Sec. 870.12(b) (1982). Specifically, Amerikohl sought a refund from the government for fees paid in 1982 under regulations which did not provide for a deduction of materials such as excess moisture, debris and clay, which were not coal. The plaintiffs complained that, because the Secretary's regulations did not provide for the above deductions, the levied fees exceeded the Secretary's statutory authority. They further argued that the deductions for excess moisture allowed under the 1988 amended regulation, 30 C.F.R. Sec. 870.12(b)(3)(i) (1988), should be retroactively applied.

In response to Amerikohl's complaint, the United States moved to dismiss the action for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.

The Claims Court determined that, under 30 U.S.C. Sec. 1276(a)(1) (1982), the United States District Court for the District of Columbia has exclusive jurisdiction to consider challenges to regulations promulgated under SMCRA and granted the government's motion to dismiss the action. Amerikohl, 16 Cl.Ct. at 628.

This appeal followed.

ISSUE

The only issue is whether the District Court for the District of Columbia has exclusive jurisdiction to hear challenges to rules and regulations promulgated under the SMCRA.

OPINION

The issue raised in this appeal requires the interpretation of 30 U.S.C. Sec. 1276(a) (1982), which provides:

Sec. 1276. Judicial review

(a) Review by United States District Court; venue; filing of petition; time

(1) Any action of the Secretary to approve or disapprove a State program or to prepare or promulgate a Federal program pursuant to this chapter shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is at issue. Any action by the Secretary promulgating national rules or regulations including standards pursuant to sections 1251, 1265, 1266, and 1273 of this title shall be subject to judicial review in the United States District Court for the District of Columbia Circuit. Any other action constituting rulemaking by the Secretary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is located. Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law. A petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day. Any such petition may be made by any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary.

Amerikohl asserts that section 1276(a)(1) should be interpreted to mean that the District Court for the District of Columbia has exclusive jurisdiction over the review of preenforcement proceedings, upon the filing of a petition within 60 days "by any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary," but that other courts may consider the validity of SMCRA regulations in enforcement proceedings initiated by aggrieved parties who did not participate in the administrative proceedings. The present action for reimbursement of fees is, according to Amerikohl, an enforcement proceeding.

Amerikohl arrives at its interpretation of section 1276(a)(1) largely by focusing on statutory construction and the Sixth Circuit's analysis in Holmes Limestone Co. v. Andrus, 655 F.2d 732 (6th Cir.1981), cert. denied, 456 U.S. 995, 102 S.Ct. 2280, 72 L.Ed.2d 1292 (1982). It also asserts that public policy considerations favor its interpretation.

This court rejects Amerikohl's interpretation whether it be based upon statutory construction or public policy. It is well-settled law that the plain and unambiguous meaning of the words used by Congress prevails in the absence of a clearly expressed legislative intent to the contrary. See Mansell v. Mansell, --- U.S. ----, 109 S.Ct. 2023, 2030, 104 L.Ed.2d 675 (1989); LSI Computer Sys. v. United States Int'l Trade Comm'n, 832 F.2d 588, 590 (Fed.Cir.1987). Here, the words "shall be subject to judicial review in the United States District Court for the District of Columbia Circuit" are plain and unambiguous. This court acknowledges that the word "shall" is mandatory and not permissive. See United States ex rel. Siegel v. Thoman, 156 U.S. 353, 360, 15 S.Ct. 378, 380, 39 L.Ed. 450 (1894). Hence, it appears from the plain meaning of the language in section 1276(a)(1) that Congress intended the District Court for the District of Columbia to be the exclusive forum for challenging national rules and regulations promulgated under the SMCRA. Moreover, nothing in the legislative history of the SMCRA indicates that Congress intended an interpretation contrary to the plain meaning of these words. Indeed, the legislative history indicates that Congress wished to create with the SMCRA a uniform system of national standards. H.R.Rep. No. 95-218, 95th Cong. 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin.News 593, 595. The establishment of an exclusive forum to review regulations under the SMCRA which are of national scope furthers that goal. Id. at 684.

Relying on Holmes Limestone Co. v. Andrus, 655 F.2d 732 (6th Cir.1981), cert. denied, 456 U.S. 995, 102 S.Ct. 2280, 72 L.Ed.2d 1292 (1982), Amerikohl argues that the SMCRA's legislative history does, in fact, suggest a contrary intent. In Holmes Limestone, a case similar to the present one, the court noted that both the Senate and House versions of the bill that was to become the SMCRA, expressly stated that judicial review was to be "only" in the District Court for the District of Columbia, but that the word "only" was deleted in the Conference Committee bill that was ultimately adopted. 655 F.2d at 737. It concluded, as Amerikohl argues now, that the omission of the word "only" from the bill indicates Congress' desire not to limit jurisdiction to the District Court for the District of Columbia. Id.

In Drummond Coal Co. v. Watt, 735 F.2d 469, 474 (11th Cir.1984), the Eleventh Circuit responded to the same...