National Wildlife Federation v. Lujan, s. 90-5352

• Decision Date: 10 December 1991
• Docket Number: Nos. 90-5352,90-5354,90-5356 and 90-5358,s. 90-5352
• Citation: 950 F.2d 765
• Parties: , 292 U.S.App.D.C. 356, 60 USLW 2436, 22 Envtl. L. Rep. 20,317 NATIONAL WILDLIFE FEDERATION, et al., Appellees, v. Manuel LUJAN, Jr., Secretary, Department of the Interior, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 765

950 F.2d 765

34 ERC 2043, 292 U.S.App.D.C. 356, 60

USLW 2436,

22 Envtl. L. Rep. 20,317

NATIONAL WILDLIFE FEDERATION, et al., Appellees, v. Manuel LUJAN, Jr., Secretary, Department of the Interior, et

al., Appellants.

Nos. 90-5352, 90-5354, 90-5356 and 90-5358.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 23, 1991.

Decided Dec. 10, 1991.

As Amended Dec. 10, 1991.

Appeals from the United States District Court for the District of Columbia.

Dirk D. Snel, Atty., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., Alfred T. Ghiorzi, Edward J. Shawaker, and Jacques B. Gelin, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellants Secretary of the Interior, et al., in 90-5352, 90-5356 and 90-5358.

J. Michael Klise, with whom John A. Macleod, Thomas C. Means and Harold P. Quinn, Jr., Washington, D.C., for Nat. Coal Ass'n, and Edward M. Green and Stuart A. Sanderson, Washington, D.C., for American Min. Congress, were on the brief, for appellants Nat. Coal Ass'n and American Min. Congress in 90-5354.

L. Thomas Galloway, with whom Glenn P. Sugameli and Thomas J. FitzGerald, Washington, D.C., were on the brief, for appellees in 90-5352, 90-5354, 90-5356 and 90-5358.

Lawrence G. McBride, Washington, D.C., was on the brief, for amicus curiae Interstate Min. Compact Com'n urging that the District Court's order be reversed and the Secretary's rule be reinstated.

Before WALD, D.H. GINSBURG and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

Surface coal mining is a temporary use of the land. When mining ends the land must be restored. After revegetation is complete, and sufficient time has passed to ensure its success--5 years in the east, 10 years in the arid west--a mine operator who has fulfilled all legal requirements is entitled to have his performance bond released. The principal question in this case is whether under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328 (1988), regulatory jurisdiction may then be terminated. The Secretary of the Interior issued regulations so providing. See 52 Fed.Reg. 24,092 (1987) (Notice of Proposed Rulemaking); 53 Fed.Reg. 44,356 (1988) (Final Rule). The district court, at the behest of the National Wildlife Federation and others ("NWF"), struck them down. National Wildlife Fed'n v. Interior Dep't, 31 Env't Rep.Cas. (BNA) 2034, 2040-41, 1990 WL 134495 (D.D.C.1990). Because we find the Act silent on the issue presented and the Secretary's interpretation permissible, we reverse. ¹

As night follows day, litigation follows rulemaking under this statute. Since the Act's passage in 1977, in cases challenging regulations, our opinions have described in considerable detail the Act's structure and operation. ² We shall assume familiarity with those opinions. In brief, the Act is intended to protect the environment from the adverse effects of surface coal mining while ensuring an adequate supply of coal to meet the nation's energy requirements. 30 U.S.C. § 1202(a), (f). Section 501(b) directs the Secretary to promulgate regulations establishing regulatory procedures and performance standards "conforming to the provisions of" the Act (30 U.S.C. § 1251(b)). Section 515 contains detailed "environmental protection performance standards" applicable to "all surface coal mining and reclamation operations." 30 U.S.C. § 1265. Through the Office of Surface Mining Reclamation and Enforcement ("OSMRE"), the Secretary is to take steps "necessary to insure compliance with" the Act. 30 U.S.C. § 1211(a), (c)(1). The states too have a significant role to play. After an interim period of federal regulation, states had the option of proposing plans for implementing the Act consistent with federal standards on non-federal lands. When the Secretary approved the programs submitted by the states, those states became primarily responsible for regulating surface coal mining and reclamation in the non-federal areas within their borders. 30 U.S.C. § 1253. In states not having an approved program, the Secretary implemented a federal program. 30 U.S.C. § 1254(a), (b). The "permanent program" regulations issued under section 501(b) set standards for federally-approved state programs and for the federal program that takes effect when a State fails to "implement, enforce, or maintain" its program. 30 U.S.C. § 1254(a). Enforcement is carried out by the "regulatory authority," that is, the state agency administering the federally-approved program, the Secretary administering a federal program, or OSMRE conducting oversight of state programs. See 30 C.F.R. § 700.5.

The primary means of ensuring compliance is the permit system established in sections 506 through 514 and section 515(a). 30 U.S.C. §§ 1256-1264, 1265(a). A permit is required for "any surface coal mining operations." ³ 30 U.S.C. § 1256. Summaries of applications for permits must be published, and objections may be submitted by local agencies or by "any person having an interest which ... may be adversely affected" by a proposed operation. 30 U.S.C. § 1263. Each application must include a reclamation plan. Section 507(d), 30 U.S.C. § 1257(d). A reclamation plan describes the present use of the land, proposed and possible post-mining uses of the land, and what steps the operator will take to ensure the viability of the latter. Among other things, the plan must show how the operator will achieve soil reconstruction and revegetation of the mined area. Section 508, 30 U.S.C. § 1258. ⁴ A permit application can only be approved if it demonstrates that "all requirements" of the Act have been satisfied and that "reclamation as required by [the Act] ... can be accomplished." 30 U.S.C. § 1260.

Section 509 requires the operator to post a performance bond in an amount sufficient to secure completion of reclamation. The operator and the surety remain liable under the bond for the duration of the surface mining and reclamation operation and until the end of the "revegetation period" (5 or 10 years) prescribed by section 515(b)(20). 30 U.S.C. § 1259(b). At that time, the operator may petition the regulatory authority for release of the bond. The petition must be published, and is subject to the same opportunities for comment and hearing as the permit application. 30 C.F.R. § 800.40(a)(2), (b)(2). Further, "[n]o bond shall be fully released ... until reclamation requirements of the Act and the permit are fully met." Id. § 800.40(c)(3).

Prior to this rulemaking, the relationship between bond release and continuing regulatory jurisdiction was unclear. 53 Fed.Reg. 44,356 (1988). State authorities would decline to act on violations reported after bond release, even when the allegation was that the bond had been released improperly. In some such cases, OSMRE would re-assert jurisdiction directly. Id. This led to confusion about whether a site was or was not subject to the Act. In order to end this confusion, the Secretary promulgated the rules at issue, which specify when regulatory jurisdiction over a site terminates. Id. Thus, 30 C.F.R. § 700.11(d)(1) provides that "a regulatory authority may terminate its jurisdiction ... over [a] reclaimed site" when (and only when) the authority determines (either independently or pursuant to a bond release) that "all requirements imposed" have been completed. ⁵ Id. By tying termination of jurisdiction to bond release, the Secretary sought to resolve doubts about the former, while imposing minimum standards for the latter on the state authorities.

In the district court NWF claimed that it was "premature" to terminate regulatory jurisdiction at the time of bond release. Complaint of National Wildlife Federation at 14, Civ. No. 88-3345 (D.D.C. filed Nov. 17, 1988). The district court interpreted NWF's complaint not simply as an objection to timing, but as an attack on "the concept of terminating jurisdiction." National Wildlife Fed'n v. Interior Dep't, 31 Env't Rep.Cas. (BNA) at 2039. Seizing on language found in section 521 of the Act, 30 U.S.C. § 1271, the court noted that the Secretary was under "an ongoing duty ... to correct violations ... without limitation." 31 Env't Rep.Cas. (BNA) at 2040. The court also believed that allowing termination of jurisdiction would "hinder" the Act's goal of "protect[ing] the environment." Id. at 2041. In view of these considerations, the court believed it proper to interpret Congress' silence on the precise question of termination of jurisdiction as a call for perpetual regulation. Id.

The district court's opinion and NWF's claim of prematurity suffer from the same flaw. Section 521 cannot be read to express or assume that regulatory jurisdiction over a surface coal mining and reclamation operation must continue forever. It is true that section 521 requires the regulatory authority to "take ... action" "whenever" a violation occurs, 30 U.S.C. § 1271(a)(1) (emphasis added). But by "action," section 521 means primarily the issuance of an order requiring "cessation of surface coal mining and reclamation operations." 30 U.S.C. § 1271(a)(2). Section 521(a)(2) also empowers the Secretary to impose other "affirmative obligations" on the operator; these, however, are to be exacted "in addition to the cessation order," 30 U.S.C. § 1271(a)(2). It thus appears that Congress contemplated enforcement actions only during mining and reclamation operations. If the site were no longer the scene of a "surface coal mining and reclamation operation," and it could not be by the time the bond is released, it would be difficult to see how section 521 could nevertheless continue to apply. The regulation, then, cannot be upheld or struck down solely by reference to Congress' intent, at least not as that intent was expressed in section 521.

NWF also argues that section 520 of the Act, the citizen suit provision, requires everlasting regulatory jurisdiction....