National Min. Ass'n v. U.S. Dept. of Interior

• Decision Date: 12 December 1995
• Docket Number: Nos. 94-5351,94-5377 and 95-5028,94-5353,s. 94-5351
• Citation: 70 F.3d 1345
• Parties: , 315 U.S.App.D.C. 133, 26 Envtl. L. Rep. 20,361 NATIONAL MINING ASSOCIATION, et al., Appellants, v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1345

70 F.3d 1345

41 ERC 1801, 315 U.S.App.D.C. 133, 26

Envtl. L. Rep. 20,361

NATIONAL MINING ASSOCIATION, et al., Appellants, v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees.

Nos. 94-5351, 94-5353, 94-5377 and 95-5028.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 11, 1995.

Decided Dec. 12, 1995.

Appeals from the United States District Court for the District of Columbia, Nos. 87cv02076, 88cv02273 and 88cv02416.

Joseph M. Klise argued the cause, for appellants, with whom John A. MacLeod, Thomas C. Means, Harold P. Quinn, Jr., and Dean K. Hunt, were on the briefs. Gregory E. Conrad was on the brief, for appellant Interstate Mining Compact Commission.

Lisa E. Jones, Attorney, United States Department of Justice, argued the cause, for appellees, with whom Lois J. Schiffer, Assistant Attorney General, and J. Carol Williams, Attorney, were on the brief.

Glenn P. Sugameli and Thomas J. Fitzgerald were on the brief, for appellee National Wildlife Federation, et al.

Before SILBERMAN, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellants, National Mining Association (the Association) and the Interstate Mining Compact Commission, appeal the district court's summary judgment disposing of their claims that the Department of Interior acted arbitrarily or capriciously in denying a rulemaking petition. The petition sought to repeal a regulation, promulgated under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et seq. (SMCRA), which permits the Department to issue notices of violation to mine operators in so-called "primacy" states. We affirm the order of the district court, although--as to those claims over which we conclude the district court lacked jurisdiction--on a different rationale.

I.

The Department is charged with enforcing the provisions of SMCRA. Any state, however, has the option of becoming the primary enforcement body within its borders if it promulgates a state program that is approved by the Department. In such a state (a "primacy" state), federal enforcement authority is limited. See generally In re Permanent Surface Mining Regulation Litig., 653 F.2d 514, 516 (D.C.Cir.) (en banc), cert. denied sub nom. Peabody Coal Co. v. Watt, 454 U.S. 822, 102 S.Ct. 106, 70 L.Ed.2d 93 (1981). The Department retains oversight and backup enforcement authority including the power to issue a notice of violation (NOV) to a mine operator who, although not posing an imminent danger to the environment or to the health or safety of the public, is not satisfying a permit condition or a requirement of SMCRA. 30 U.S.C. Sec. 1271(a)(3) (1986). A NOV "describes the violation and what remedial action needs to be [taken] to correct it." The statute provides that NOVs may be issued when violations are discovered during certain, enumerated types of inspections. Id. The rule at issue, 30 C.F.R. Sec. 843.12(a)(2) (1995), permits the Department to issue a NOV based on inspections other than those set forth in Sec. 1271(a)(3) if it determines that there is a violation of SMCRA, the state program, or a permit condition and the state does not take appropriate action within 10 days of being notified of the violation by the Department. ¹

The Department proposed to amend the rule and sought comments in 1981, two years after it was promulgated, expressing concern over whether the rule exceeded the statutory grant of authority. In 1982, the Department decided to prepare an environmental impact statement with respect to its SMCRA regulations and solicited further public comment on the NOV rule. Later that year, the Department promulgated new final rules but indicated that it was deferring action on the NOV rule until the environmental impact statement was completed. On March 3, 1983, the Department announced that the NOV rule had been "properly and lawfully promulgated; therefore there is no need to reconsider the issue."

In 1986, a group of coal industry participants petitioned for a rulemaking to repeal the NOV rule and to modify the standard under which the adequacy of state responses to 10-day notices is determined. The petition contended that the NOV rule ought to be repealed because (1) it did not comport with SMCRA, was inconsistent with the statute's legislative history, and was contrary to case law that had developed since the enactment of SMCRA; and (2) the Department was using its NOV power in primacy states to replace its judgment for that of the state regulatory authorities on a case-by-case basis, catching mine operators in the middle of disputes between federal and state regulators while large, systemic problems went unremedied. The Department published the petition and sought comments on whether it should institute a rulemaking proceeding. After reviewing the comments submitted, the Department granted only that portion of the petition concerning the 10-day notices. The Department, in denying the portion of the petition seeking to repeal the NOV rule, explained that the question whether the NOV rule should be retained had already been considered in previous rulemakings. It also noted statistics showing that NOVs were issued in a small number of primacy states in limited and decreasing numbers, the need to retain NOV authority to comply with court orders, the Department's belief that the rule encouraged operator compliance with state programs, and the desire of the Department to be able to address specific problems without resort to the lengthy process of substituting federal for state primary enforcement authority. Problems with the NOV rule, the Department stated, would be ameliorated with the adoption of a more deferential standard concerning the adequacy of a state's response to a 10-day notice. The rulemaking on the 10-day notice standard resulted in a rule under which a state response to a 10-day notice is deemed adequate if it is not "arbitrary, capricious, or an abuse of discretion."

Appellants petitioned for review in the district court. The court, noting the highly deferential standard of review given an agency's denial of a petition for rulemaking, concluded that the Department's decision to deny the petition was reasonable. The court also analyzed appellants' claim that the NOV rule exceeded the statutory grant of authority and determined that it did not. Appellants concentrate their arguments here on whether the rule is permitted by SMCRA. They argue that the language, structure, purpose, and legislative history of the statute preclude issuance of NOVs in primacy states. It is argued that the NOV power is derived solely from Sec. 1271(a)(3), which permits the issuance of NOVs based on certain types of inspections. The NOV rule, vesting authority to issue NOVs after "any inspection" other than those listed in Sec. 1271(a)(3) is, appellants contend, ultra vires the statute and frustrates Congress' concern with allowing states to have primary enforcement responsibility. The Department's alleged increasingly extensive use of NOVs further undermines Congress' efforts to fix exclusive jurisdiction over intra-state mining operations in state regulatory authorities.

The government and defendant-intervenor below, National Wildlife Federation, respond that the statute does authorize the NOV rule, and present their own construction of the relevant sections of SMCRA along with their own interpretation of the legislative history. The government argues that its construction of the statute as permitting the NOV rule is a permissible one under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and that state primacy is not so ascendant a statutory purpose that the NOV rule cannot stand.

II.

A.

We consider at the outset whether either of the appellants has established that it is injured by agency action, "one of the elements necessary to establish the 'irreducible constitutional minimum of standing.' " Marathon Oil Co. v. FERC, 68 F.3d 1376, 1378 (D.C.Cir.1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Having reviewed the parties' supplemental briefs on the question, we are satisfied that the Association has suffered sufficient injury-in-fact for purposes of Article III. Since we conclude that one party has standing, we need not decide whether the Interstate Mining Compact Commission also has standing. See, e.g., United States Dept. of Labor v. Triplett, 494 U.S. 715, 719, 110 S.Ct. 1428, 1431, 108 L.Ed.2d 701 (1990); Environmental Action v. FERC, 996 F.2d 401, 407 (D.C.Cir.1993).

If the Association claimed that it was injured only because its members were regulated by federal authorities but wished to be regulated instead by state authorities, we would have doubts as to whether the Association had standing. We have reserved this question in SMCRA litigation before. See National Wildlife Federation v. Hodel, 839 F.2d 694, 708 n. 9 (D.C.Cir.1988). The Association, however, asserts that it has standing as the representative of mine operators caught in the regulatory crossfire between state and federal authorities, and cites a series of cases in which mine operators have incurred expenses attempting to appease the two competing regulators. See, e.g., Clinchfield Coal Co. v. Hodel, 640 F.Supp. 334 (W.D.Va.1985) (enjoining the Department from requiring mine operator to relocate drainage ditch when state regulatory authority explicitly authorized ditch), rev'd for lack of jurisdiction sub nom. Clinchfield Coal Co. v. Department of the Interior, 802 F.2d 102 (4th Cir.1986); Willowbrook Mining Co., 108 I.B.L.A. 303 (1989); Harman Mining Corp., 110 I.B.L.A. 98 (1989). The Association asserts that its members are, at best, subject to costly uncertainty as to which standards must be met in their mining operations, and are, at worst, responsible for expensive efforts to redo or...