Nat'l Mining Assoc. v. U.S. Dept. of the Interior

• Decision Date: 08 June 2001
• Docket Number: No. 96-5274,96-5274
• Citation: 251 F.3d 1007
• Parties: (D.C. Cir. 2001) National Mining Association, Appellant v. United States Department of the Interior, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1007

251 F.3d 1007 (D.C. Cir. 2001)

National Mining Association, Appellant v. United States Department of the Interior, et al., Appellees

No. 96-5274

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2000

Decided June 8, 2001

Appeal from the United States District Court for the District of Columbia (94cv02740) Thomas C. Means argued the cause for appellant. With him on the briefs were Harold P. Quinn, Jr., J. Michael Klise and Kirsten L. Nathanson. John A. MacLeod entered an appearance.

Kathryn E. Kovacs, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were James F. Simon, Acting Assistant Attorney General, and Robert H. Oakley, Attorney. John T. Stahr and William B. Lazarus, Attorneys, entered appearances.

Before: Ginsburg, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

No one may engage in surface coal mining without a permit issued pursuant to the Surface Mining Reclamation and Control Act, 30 U.S.C. 1201 et seq., and the regulations thereunder. Under the Act, States administer permit programs approved by the Secretary of the Interior as consistent with federal laws and regulations. See National Mining Ass'n v. United States Dep't of the Interior, 70 F.3d 1345, 1347 (D.C. Cir. 1995). The questions initially presented in this appeal dealt with the validity of several federal regulatory requirements imposed on permit applicants, and the procedures for contesting the accuracy of information used to determine permit eligibility. After oral argument, the Interior Department revised many of these regulations, and so we are faced with additional questions concerning the extent to which the case is now moot.

Some of the original regulations stemmed from a consent decree requiring the Interior Department to "establish and maintain a computerized system" to track applicants and violators, in order to enforce 30 U.S.C. 1260(c). See Save Our Cumberland Mountains v. Clark, No. 81-2134, 1985 U.S. Dist. LEXIS 22934, at *1-*4 (D.D.C. Jan. 31, 1985); Save Our Cumberland Mountains v. Watt, 550 F. Supp. 979, 980 (D.D.C. 1982), rev'd, 725 F.2d 1434 (D.C. Cir. 1984). Section 1260(c) provides that a permitting authority may not issue a permit if "the schedule [attached to the permit application] or other information available to the regulatory authority indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of this chapter ... [unless] ... the applicant submits proof that such violation has been corrected or is in the process of being corrected." 30 U.S.C. 1260(c).

In compliance with the consent decree, the Interior Department's Office of Surface Mining created the Applicant/Violator System ("AVS"). The AVS is a computerized database "programmed to identify 'links' between known violators and applicants, individuals, and corporations." Sam P. Burchett, The Applicant Violator System in Transition, 21 N. Ky. L. Rev. 555 n.5 (1994). The Office of Surface Mining operates the database and makes it available to the public on dedicated terminals and the Internet. See Office of Surface Mining, Access, at http://www.avs.osmre.gov/pubaccess.htm (last visited Dec. 5, 2000).

The National Mining Association (NMA) brought this action to set aside aspects of the AVS and related regulations. NMA objected to the AVS rules both because of the information required of applicants and because of what is purportedly done with the information. The district court granted summary judgment in favor of the Interior Department, sustaining all of the regulations.

The case was argued before us in November 2000. In December 2000, the Interior Department published a rule, effective January 18, 2001, replacing the AVS rule at issue in this appeal. See Application and Permit Information Requirements; Permit Eligibility; Definitions of Ownership and Control; the Applicant/Violator System; Alternative Enforcement, 65 Fed. Reg. 79,582 (Dec. 19, 2000) (to be codified at 30 C.F.R.) [hereinafter AVS Rules]. We ordered supplemental briefing on the question of mootness.

I.

To determine whether anything remains of NMA's case, we need to identify which regulations NMA challenged and whether the new rules altered those regulations. This is no small task. NMA, in its complaint, did not see fit to provide citations to all of the regulations it thought invalid. Even in its briefs in this court, NMA is content to refer generally to "the rules" without, in many instances, providing any citations to the C.F.R. Perhaps this results from NMA's habit of describing what "the rules" prohibit when in fact NMA's real complaint is that "the rules" do not affirmatively require what NMA desires.

At any rate, by our count NMA specifically argued against the following old AVS rules issued by the Office of Surface Mining: 30 C.F.R. 773.5, 773.20(c), 773.23(b), 773.24, 773.25 & 778.14(c) (1999). In its supplemental brief, NMA agrees with the government that the new AVS rules moot its challenges to 773.20(c), 773.23(b), 773.24 & 773.25. See Supplemental Brief of Appellant at 4, 11. NMA also agrees that its contention about the lack of any provision to allow provisional permits is moot because the new rules fill the gap. See AVS Rules, 65 Fed. Reg. at 79,664-65 (to be codified at 30 C.F.R. 773.14).

As to NMA's remaining challenges to the regulations, some are also moot and the rest are meritless.

A.

NMA mounted a scattershot due process attack on the old AVS rules. Its main objections were that the rules did not give notice, and did not give applicants the chance to contest links to them on the AVS before these were posted and used to deny applications. NMA brought the case as a facial challenge to the rules. Yet NMA conceded at oral argument that even by its lights, "the rules" could be constitutionally applied in some cases. Whether that concession should have ended this aspect of the case under the doctrine that a law valid in some of its applications cannot be struck down as invalid on its face is a question we leave to another day. Compare United States v. Salerno, 481 U.S. 739, 745 (1987); Reno v. Flores, 507 U.S. 292, 301 (1993); INS v. National Ctr. for Immigrants' Rights, 502 U.S. 183, 188 (1991); Chemical Waste Mgmt. v. EPA, 56 F.3d 1434, 1437 (D.C. Cir. 1995); with National Mining Ass'n v. Army Corps of Engineers, 145 F.3d 1399, 1407-08 (D.C. Cir. 1998). We also leave to another day the question whether the sort of generalized due process attack NMA advanced would be ripe under the doctrine of Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 n.18 (D.C. Cir. 2000). We leave these questions undecided because NMA's due process claims are moot in light of the new AVS rules.

In order to evaluate a procedural due process claim, a court must evaluate the "risk of an erroneous deprivation of [a property] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Mathews v. Eldridge, 424 U.S. 319 335 (1976). Although the new AVS rules, like the old rules, contain no explicit provision allowing an owner to challenge a violation's status before it has been entered into the AVS, see AVS Rules, 65 Fed. Reg. at 79,666 (to be codified at 30 C.F.R. 773.25(a)), the new rules add other procedural protections. Responding to due process concerns, the Office of Surface Mining's new 30 C.F.R. 773.14, provides that an entity challenging AVS listings may be entitled to a provisional permit. See AVS Rules, 65 Fed. Reg. at 79,664. This affects the Mathews v. Eldridge calculus. The old set of rules, which are the subject of this lawsuit, cannot be evaluated as if nothing has changed. A new system is now in place. We therefore must vacate this aspect of the district court's decision as moot. See Fusari v. Steinberg, 419 U.S. 379, 386, 388-89 (1975); see also Kremens v. Bartley, 431 U.S. 119, 128 (1977) (suggesting that mootness determination can be colored by interest in avoiding premature constitutional adjudication).

B.

NMA argued that the definition of "owned and controlled" in 773.5 of the old regulations was unconstitutionally vague and that the Office of Surface Mining should have adopted substantive rebuttal standards to overcome the presumptions set forth in the definition. See Brief of Appellant at 39-40. The new rules eliminate the presumptions and, in place of the former definition of "owned or controlled," substitute two new definitions of "own, owner, or ownership" and "control or controller." See AVS Rules, 65 Fed. Reg. at 79,662 (to be codified at 30 C.F.R. 701.5). The new rules also list the types of information one may use to rebut an ownership or control linkage in the AVS. See AVS Rules, 65 Fed. Reg. at 79,666 (to be codified at 30 C.F.R. 773.25(c)). In light of these substantial changes, NMA's vagueness challenge is moot. Any opinion regarding the former rules would be merely advisory.

C.

Section 778.14(c) of the old rules required applicants to submit "[a] list of all violation notices received by the applicant during the three-year period preceding the application date, and a list of all outstanding violation notices received prior to the date of the application by any surface coal mining operation that is deemed to be owned or controlled by the applicant." 30 C.F.R. 778.14(c) (1999). Because the new version of 778.14(c) is to the same effect, see AVS Rules, 65 Fed. Reg. at 79,669 (to be codified at 30 C.F.R. 773.14(c)), NMA's claim that the rule exceeds the Interior Department's statutory authority is not moot.

Under the Act, applicants must list all "notices of violations ... incurred by the applicant in connection with any surface coal mining operation during the three-year period prior to the date of application." 30...