National Mining Ass'n v. Kempthorne, 06-5199.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation512 F.3d 702
Docket NumberNo. 06-5199.,06-5199.
PartiesNATIONAL MINING ASSOCIATION, Appellant v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Appellees.
Decision Date15 January 2008
512 F.3d 702
Dirk KEMPTHORNE, Secretary of the Interior, et al., Appellees.
No. 06-5199.
United States Court of Appeals, District of Columbia Circuit.
Argued September 24, 2007.
Decided January 15, 2008.

[512 F.3d 704]

Appeal from the United States District Court for the District of Columbia (No. 00cv00283).

Kirsten L. Nathanson argued the cause for appellant. With her on the briefs were Harold P. Quinn, Jr. and Thomas C. Means. Joseph M. Klise entered an appearance.

Blair M. Gardner was on the brief for milieus curiae National Council of Coal Lessors, Inc. in support of appellant.

Kathryn E. Kovacs, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief was Robert Oakley, Attorney.

Walton D. Morris, Jr. was on the brief for appellee. Kentucky Resources Council, Inc.

Before: GARLAND and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

The Secretary of the Interior has interpreted the phrase "valid existing rights" in the Surface Mining Control and Reclamation Act to foreclose surface mining operations in sensitive areas. The National Mining Association challenges this reading of the statute, but we conclude that we must defer to the Secretary's reasonable interpretation of this ambiguous phrase.


In 1977, Congress enacted the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. §§ 1201 et seq., "to

512 F.3d 705

protect society and the environment from the adverse effects of surface coal mining operations," id. § 1202(a). Section 522(b) of the SMCRA authorizes the Secretary of the Interior ("Secretary") to prohibit surface coal mining operations on federal lands if he determines them to be unsuitable for that purpose. Id § 1272(b). Section 522(e) bans outright surface mining in statutorily designated areas.1 Id. § 1272(e). In this appeal, we are asked to determine how Congress intended that ban to work. The relevant text of § 522(e) provides: "After August 3, 1977, and subject to valid existing rights no surface coal mining operations except those which exist on August 3, 1977, shall be permitted [in the statutorily designated areas]." Id. (emphasis added).

Because one must show "valid existing rights" ("VER") to start a surface mining operation in a § 522(e) area, the meaning of the phrase is critical. For decades, the Secretary and the courts have wrestled with how best to understand VER and determine what it protects. We need not recount this history. Suffice it to say that VER has occasioned a spectrum of agency interpretations, ranging from a relaxed "ownership and authority" standard, which required only that the miner show a property right in the coal, to a more exacting "all permits" standard, which called for a showing that surface mining licenses had been issued prior to the date § 522(e) took effect. See Valid Existing Rights, 64 Fed. Reg. 70,766, 70,769-71 (Dec. 17, 1999) (recounting Secretary's prior definitions of VER).

In 1999, the Secretary and the Office of Surface Mining Reclamation and Enforcement promulgated a rule through notice-and-comment procedures offering yet another interpretation of VER. Id. at 70,831-32 (codified at 30 C.F.R. § 761.5). This "1999 Rule," as we will call it, was a setback for parties hoping to conduct new surface mining operations in § 522(e) areas. Under the 1999 Rule, a miner claiming VER protection must satisfy two conditions. First, he must produce a legally binding document that vested him with the right to mine the land at the time it came under § 522(e). Second, he must either prove that the owner of the land, by the time it came under § 522(e), had made a good faith effort to obtain all necessary permits for the mining, or else prove that the coal is immediately adjacent to a surface mining operation in existence on August 3, 1977 and is needed to ensure the economic viability of the mining operation as a whole. The Secretary prefaced this interpretation of VER with a 72-page preamble describing the agency's long relationship with the phrase, explaining the rationale for the latest interpretation, and responding to objections raised during the notice-and-comment period. Significantly, the preamble acknowledges that the chosen VER interpretation protects 3,062 more acres than the least restrictive alternative and predicts that "few persons will qualify for VER under this standard." Valid Existing Rights, 64 Fed.Reg. 70, 766, 70, 776, 70, 778 (Dec. 17, 1999).

The National Mining Association ("NMA"), an industry trade association

512 F.3d 706

with standing to bring suit on behalf of its members under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), challenged the 1999 Rule pursuant to 30 U.S.C. § 1276(a)(1) in the United States District Court for the District of Columbia. The NMA argued that the 1999 Rule's interpretation of VER was too narrow and shielded more land from surface mining than Congress intended. On cross-motions for summary judgment, the district court found the statute ambiguous, deferred to the Secretary's interpretation as reasonable, and entered judgment for the Secretary. Nat'l. Mining Ass'n v. Scarlett, 2006 WL 1194224, *6-9 (D.D.C. May 4, 2006) (citing Chevron, U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The NMA appeals. For, the reasons set forth below, we affirm the district court's judgment.


This case begins with an unusual question created by a mistake in the language of the jurisdictional grant. We have an "independent obligation to determine whether subject-matter jurisdiction exists," Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), which we must discharge before ruling on the merits, Sinochem Co. v. Malay. Int'l Shipping Corp., ___ U.S. ___, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)).

The district court claimed jurisdiction under 30 U.S.C. § 1276(a)(1), which renders "[a]ny action by the Secretary promulgating national rules or regulations subject to judicial review in the United States District Court for the District of Columbia Circuit." But there is no such court within the federal judiciary. The judgment the NMA has asked us to review comes from a court called "the United States District Court for the District of Columbia." See Act of June 25, 1948, ch. 646, 62 Stat. 869, 875, 895 (codified at 28 U.S.C. §§ 88, 132(a)); see also In re Permanent Surface Mining Regulation Litig., 653 F.2d 514, 516 n. 2 (D.C.Cir.1981) (noting § 1276(a)(1)'s error); In re Surface Mining Regulation Litig., 627 F.2d 1346, 1350 n. 1 (D.C.Cir.1980) (same). Because the inferior federal courts are "creatures of statute," Bath County v. Amy, 80 U.S. (13 Wall.) 244, 247-48, 20 L.Ed. 539 (1871), we must pay careful attention to the legislative texts by which we are given authority. The district court did not address the mistake in the statute, so the task falls to us.

"[C]ourts will not give independent meaning to a word where it is apparent from the context of the act that the word is surplusage," Am. Radio Relay League, Inc. v. FCC, 617 F.2d 875, 879 (D.C.Cir. 1980) (citation and quotation marks omitted), so we will excise the word "Circuit" from the text of § 1276(a)(1). We have no qualms about this erasure, for both Congress's intent and the error impeding it are plain to see. See 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47.37 (6th ed. 2002) ("A majority of the cases permit the elimination or disregarding of words in a statute in order to carry out the legislative intent or meaning."); HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1375 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("Courts on occasion can correct mistakes.... when it is completely clear from the context that a mistake has been made."). In § 1276(a), Congress subjected the Secretary's behavior to judicial review in various district courts. It would be absurd to assume

512 F.3d 707

that Congress intended to shield the Secretary's national rules against judicial review by granting jurisdiction to a nonexistent court. Cf. Ethyl Corp. v. EPA 541 F.2d 1, 68 (D.C.Cir.1976) (en banc) (Leventhal, J., concurring) ("Congress has been willing to delegate its legislative powers broadly and courts have upheld such delegation because there is court review to assure that the agency exercises the delegated power within statutory limits...."). We read § 1276(a)(1) as granting jurisdiction to the United States District Court for the District of Columbia in the present case, notwithstanding Congress's erroneous inclusion of the word "Circuit." Our jurisdiction to review the final decision of that court comes from 28 U.S.C. § 1291.


We review de novo the district court's grant of summary judgment. Nat'l Mining Ass'n v. Fowler, 324 F.3d 752, 756 (D.C.Cir.2003). Because Congress has charged the Secretary with implementing the SMCRA, we review the agency's interpretation of the statutory phrase "valid existing rights" under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Citizens Coal Council v. Norton, 330 F.3d 478, 481 (D.C.Cir.2003) (applying Chevron to Secretary's interpretation of the SMCRA). Where the statute is ambiguous, we defer to the agency's reasonable interpretation of its meaning. By contrast, a clear expression of congressional intent will bind agency and court alike. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.

The NMA urges that Congress inserted VER in § 522(e) to protect mineral owners' property rights. As the NMA tells it, VER allows surface mining by those with a property right...

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