Cumberland Reclamation Co. v. Secretary, U.S. Dept. of Interior

• Decision Date: 12 February 1991
• Docket Number: No. 90-5189,90-5189
• Citation: 925 F.2d 164
• Parties: , 21 Envtl. L. Rep. 20,562 CUMBERLAND RECLAMATION COMPANY, Plaintiff-Appellant, v. SECRETARY, UNITED STATES DEPARTMENT OF the INTERIOR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 164

925 F.2d 164

32 ERC 1876, 21 Envtl. L. Rep. 20,562

CUMBERLAND RECLAMATION COMPANY, Plaintiff-Appellant, v. SECRETARY, UNITED STATES DEPARTMENT OF the INTERIOR,

Defendant-Appellee.

No. 90-5189.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 2, 1990.

Decided Feb. 12, 1991.

W. Patrick Hauser (argued), Barbourville, Ky., for plaintiff-appellant.

Bruce T. Hill, U.S. Dept. of Interior, Office of the Field Sol., Knoxville, Tenn., Robert L. Klarquist, Evelyn S. Ying (argued), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendant-appellee.

Before JONES, Circuit Judge, and ENGEL and WELLFORD ^*, Senior Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

The purpose of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) is to reclaim and restore areas which have been harmed by coal mining. 30 U.S.C. Sec. 1231(c)(1) (1988). This goal is accomplished by requiring coal mining operators to pay reclamation fees of 35 cents for every ton of coal produced by "surface coal mining" to the Secretary of the Interior. 30 U.S.C. Sec. 1232(a) (1988). In this case, we must decide whether the dredging of the Cumberland River for the purpose of producing coal is "surface coal mining" under the SMCRA.

Plaintiff-appellant Cumberland Reclamation Company ("Cumberland") operates a dredging facility on the Cumberland River in Knox County, Kentucky. Cumberland has operated the facility since 1982 pursuant to permits issued by the Army Corps of Engineers. The facility consists of a floating barge equipped with a dredge pump. Water, coal, sand, and other solid waste is pumped up from the riverbed, and the coal is then separated from the other solid matter.

In April 1985, the director of the Lexington, Kentucky field office of the Office of Surface Mining Reclamation and Enforcement (OSMRE) informed Cumberland that it owed reclamation fees under the SMCRA. Cumberland then appealed to the U.S. Department of the Interior Board of Land Appeals (IBLA). On April 18, 1988, the IBLA affirmed the decision of the OSMRE. On appeal, the U.S. District Court for the Eastern District of Kentucky granted the Secretary of the Interior's motion for summary judgment, and affirmed the judgment of the IBLA. The district court also ordered Cumberland to pay $13,338.45 in reclamation fees, plus interest and penalties. This appeal followed.

I

Interior Department regulations do not expressly authorize judicial review of IBLA decisions. 43 C.F.R. Sec. 4.1280-86 (1989) (entitled "Appeals to the Board From Decisions of the Office of Surface Mining"). Our review, therefore, proceeds under the "substantial evidence" standard articulated in the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(E) (1988). A decision is supported by substantial evidence if the evidence is " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citation omitted).

Cumberland first contends that it should not be required to tender the reclamation fees because underwater dredging is not "surface coal mining". The IBLA, in a 7-2 en banc decision, concluded that Cumberland's dredging operations were "surface coal mining" under the SMCRA, and therefore subject to the reclamation fee. ¹ The IBLA declared that "[a]s a general rule, any dredging operation which recovers coal from a body of water is a surface mining operation under SMCRA and, as such, requires the payment of the appropriate reclamation fees." J.App. at 8.

Cumberland argues that its dredging operation does not constitute "surface coal mining" under the SMCRA. The Secretary, however, points to the broad definition of "surface coal mining operations" in the SMCRA: "activities conducted on the surface of lands in connection with a surface coal mine ... [and] the areas upon which such activities occur or where such activities disturb the natural land surface[.]" 30 U.S.C. Sec. 1291(28). In addition, as the district court noted, the 1977 Senate Report specifically stated that dredging was one of the activities to be regulated under the SMCRA. S.Rep. No. 128, 95th Cong., 1st Sess. 98 (1977), U.S.Code Cong. & Admin.News 1977, 593.

The district court and the IBLA also relied on the only two cases to have considered this issue: United States v. H.G.D. & J. Mining Co., 561 F.Supp. 315 (S.D.W.Va.1983), and Brentwood, Inc., 90 I.D. 421 (I.B.L.A.1983). In Brentwood, the IBLA examined the legislative history of the SMCRA and found convincing evidence Congress intended river dredging for coal to be treated as surface coal mining under the SMCRA. 90 I.D. at 424.

In H.G.D. & J., the mining company argued that the dredging of coal from underneath a river did not constitute "coal mining operations" under the SMCRA because the Act only applies to surface mining. The court held that river dredging was clearly coal mining under the SMCRA because the dredging "was conducted at a place where, and upon a parcel of land from which, coal, a mineral, was found and extracted from the earth by excavating in the bed of the river, all of which was conducted from the earth's surface[.]" Id. at 322. In H.G.D. & J., the district court stated that

Obviously the [phrase "surface of the lands" in 30 U.S.C. Sec. 1291(28) ] ... means the surface of the earth, including the waters thereon, in the areas described in those definitions, else all lands ... would be subject to the provisions of the act, but the waters within those boundaries would not be so subject, and the same would hold true as to the lands within any State. Such an absurd result could not have been intended, particularly since one of the purposes of the Act was to reclaim waterways despoiled by coal mining prior to the Act's effective date and prevent despoliation resulting therefrom after that date. The term "surface lands," as used in the Act, clearly means the surface of the earth, including the waters thereon, to distinguish "surface coal mining operations" from the underground ones. Thus, defendant's dredging operations were activities conducted on the surface of lands from whence defendant extracted coal.

561 F.Supp. at 322-23.

Cumberland attempts to distinguish H.G.D. & J. by stressing that the mining company in that case made excavations into the natural river bottom. Cumberland emphasizes that its operation "does not penetrate into the natural river bottom but only vacuums sedimentary material which lies on the river bottom." Brief of Appellant at 5. In support of its position, Cumberland submitted the affidavit of a hydrologist who examined the dredging operation and concluded that the river bottom was not penetrated. As this affidavit was not part of the administrative record before the IBLA, however, it will not be considered by this court. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1972) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.").

In any event, we find that the distinction between a dredging operation that penetrates the riverbed, and a dredging operation that does not penetrate the riverbed, is without significance. This argument was rejected in Brentwood, 90 I.D. 421 (1983). Brentwood noted that the definition of "surface coal mining" in the SMCRA lists various types of mining "including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining[.]" 90 I.D. at 423 (quoting 30 U.S.C. Sec. 1291(28)(A)). As a matter of statutory construction, the use of the word "including" indicates that Congress did not intend for the list to be exhaustive. Thus, "the absence of the word dredging from the list of excavation methods does not operate to place dredging activities outside the scope of the SMCRA." 90 I.D. at 423.

Since 1982, Cumberland has dredged more than 20,000 tons of coal from the bottom of the Cumberland River. The purpose of the SMCRA is to redress any deleterious environmental effects of Cumberland's long-term dredging of the riverbed. This purpose could be thwarted if the proposition that underwater dredging for coal is not covered by the SMCRA were accepted. Therefor, we find that dredging should be considered surface mining under the SMCRA.

II

Surface coal mining activities may be exempted from the SMCRA if either the two-acre exemption or the incidental mining exemption is determined to apply. The statutory basis of the two-acre exemption is section 528 of the SCMRA, codified at 30 U.S.C. Sec. 1278(2), which states that the SCMRA does not apply to "the extraction of coal for commercial purposes where the surface mining operation affects two acres or less." ² The incidental mining exemption stems from the definition of "surface coal mining operations" in 30 U.S.C. Sec. 1291(28)(A), which provides that "such activities do not include the extraction of coal incidental to the extraction of other minerals where coal does not exceed 16 2/3 per centum of the tonnage of minerals removed for purposes of commercial use or sale[.]" Cumberland argues that it should be entitled to either the two-acre exemption or the incidental-mining exemption.

In assessing Cumberland's arguments in regard to the claimed exemptions, the district court stated:

In its pleadings before the IBLA, although it bore the burden of proof on entitlement to exemptions, Cumberland never substantiated its assertions, and the IBLA found for the government in a summary proceeding. The IBLA based its decision on the absence of any factual questions. The government presented uncontroverted evidence that Cumberland's operations covered more than two acres, and there was no evidence at all concerning the percentage of coal extracted.

J.App. at 143-44.

We find that the IBLA's determination that...