National Min. Ass'n v. Fowler, 02-5041.

Decision Date15 April 2003
Docket NumberNo. 02-5041.,02-5041.
Citation324 F.3d 752
PartiesNATIONAL MINING ASSOCIATION, Appellant, v. John M. FOWLER, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 00cv00288).

Catherine E. Stetson argued the cause for appellant. With her on the briefs were George W. Miller and Harold P. Quinn Jr.

Mark R. Haag, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Roscoe C. Howard Jr., U.S. Attorney, Javier Marques, Associate General Counsel, Advisory Council on Historic Preservation, R. Craig Lawrence and Daria J. Zane, Assistant U.S. Attorneys.

Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

The Advisory Council on Historic Preservation, an independent federal agency, is authorized by its organic statute to promulgate regulations ensuring that federally funded or federally licensed undertakings incorporate historic preservation values at the planning stage. Responding to Congress's expansion of the definition of "undertaking," the Council extended its regulation to projects licensed or permitted by state and local agencies "pursuant to a delegation or approval by a Federal agency." 36 C.F.R. § 800.16(y). Because this circuit has held that Congress's expanded definition of "undertaking" does not alter the statutory requirement that the Council regulate only "federally funded or federally licensed undertakings," Sheridan Kalorama Historical Ass'n v. Christopher, 49 F.3d 750, 755 (D.C.Cir. 1995) (emphases in original), we reverse the district court's decision to the contrary and remand the case for further proceedings consistent with this opinion.


The National Historic Preservation Act, 16 U.S.C. § 470 et seq., "requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation... to administer the Act." City of Grapevine v. Dep't of Transp., 17 F.3d 1502, 1508 (D.C.Cir.1994). NHPA section 106 states:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.

16 U.S.C. § 470f (emphases added). An "essentially ... procedural statute," City of Alexandria v. Slater, 198 F.3d 862, 871 (D.C.Cir.1999), section 106 imposes no substantive standards on agencies, but it does require them to solicit the Council's comments and to "take into account the effect of [their] undertaking[s]." Section 211 adds that the Council may "promulgate such rules and regulations as it deems necessary to govern the implementation of [section 106] in its entirety." 16 U.S.C. § 470s.

This case involves a dispute over which projects trigger section 106's procedural requirements: (1) all statutory "undertakings" or (2) only "undertakings" that are "Federal or federally assisted" or licensed by a "Federal department or independent agency." Before 1992, this was a distinction without a difference, since section 301 — the NHPA's definitional section — defined "undertaking" as "any action as described in [section 106]." 16 U.S.C. § 470w(7) (1988). In 1992, however, Congress amended section 301, replacing its cross-reference to section 106 with a specific definition:

"Undertaking" means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including

(A) those carried out by or on behalf of the agency;

(B) those carried out with Federal financial assistance;

(C) those requiring a Federal permit[,] license, or approval; and

(D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.

16 U.S.C. § 470w(7).

In 2000, following a seven-year rulemaking process, the Council promulgated a regulation (now codified at 36 C.F.R. § 800.1 et seq.) which "implemented the 1992 amendments to the ... NHPA," 65 Fed. Reg. 77,698, 77,698 (Dec. 12, 2000), in order to "define how Federal agencies meet the[ir] statutory responsibilities" under section 106, 36 C.F.R. § 800.1(a). In a provision entitled "Initiation of the section 106 process," the Council's regulation specifies that agencies must first "determine whether the proposed Federal action is an undertaking as defined in § 800.16(y)." Id. § 800.3(a). In turn, section 800.16(y) defines "undertaking" in language virtually identical to NHPA section 301's, including its reference to undertakings "subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency." The regulation goes on to establish a series of procedures — e.g., consultation with the Council, state historical preservation officers, and the public — with which agencies must comply if their actions qualify as "undertakings" with potential to affect historic properties. See 36 C.F.R. §§ 800.3-800.7.

Appellant National Mining Association (NMA), a non-profit trade organization, filed suit in the United States District Court for the District of Columbia, charging the Council with exceeding its statutory authority to promulgate regulations "govern[ing] the implementation" of section 106. 16 U.S.C. § 470s. The NMA alleged that sections 800.3(a) and 800.16(y) of the regulation exceed the Council's statutory authority because they attach procedural requirements to undertakings "subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency," even though such undertakings are neither funded nor licensed by the federal government as required by NHPA section 106. The NMA is concerned that the Council's regulation applies to state and local agencies that issue permits under so-called cooperative federalism statutes such as the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. § 1201 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. For example, although the NMA concedes that "[t]he federal government's approval of a State's overall SMCRA permitting program may arguably be an action subject to Section 106, because the federal government contributes funds to the general administration of state permitting programs and approves those programs," it contends that individual state mining permits do not fall within that section since "the federal government does not retain the authority to approve or reject any one mining project application." Appellant's Br. at 31 n.10 (emphasis in original).

On cross-motions for summary judgment, the district court rejected the NMA's argument that the Council lacks statutory authority to regulate state and local permitting agencies, holding that "section 106 applie[s] to the full range of undertakings defined in [section 301]." Nat'l Mining Ass'n v. Slater, 167 F.Supp.2d 265, 290 (D.D.C.2001); see also Nat'l Mining Ass'n v. Slater, No. 00-00288, mem. op. at 3-6 (D.D.C. Nov. 28, 2001) (denying the NMA's motion to alter or amend the court's previous opinion). The NMA appeals. We review the district court's grant of summary judgment for the Council de novo. Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir.1997).


Before addressing the merits of the NMA's claim, we must consider the Council's argument that the NMA's "concerns are too speculative and abstract to warrant review at this time." Appellees' Br. at 11. The district court rejected this argument, as do we.

"The framework for analyzing the ripeness of preenforcement agency action is well established.... [W]e must consider `both the fitness of the issue[] for judicial decision and the hardship to the parties of withholding court consideration.'" Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 434 (D.C.Cir.1986) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967) (second alteration in original)). Within this framework, "[i]f we have doubts about the fitness of the issue for judicial resolution, then we balance the institutional interests in postponing review against the hardship to the parties that will result from delay. Where, however, there are no significant agency or judicial interests militating in favor of delay, [lack of] hardship cannot tip the balance against judicial review." Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C.Cir.1990) (internal quotation marks and citation omitted) (addition in original).

Beginning with fitness, "we ask first whether the issue raised in the petition for review presents a purely legal question, in which case it is presumptively reviewable." Am. Petroleum Inst. v. EPA, 906 F.2d 729, 739 (D.C.Cir.1990) (internal quotation marks and citation omitted). Answering this question is easy: Because the NMA's challenge requires us to resolve the relationship between the NHPA's definitional and operational provisions, we face a purely legal issue. The Council does not argue otherwise.

We next "consider whether the agency or court will benefit from deferring review until the agency's policies have crystallized through the application of the policy to particular facts." Id. (internal quotation marks...

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