Prager v. Hodel, 85-1060

• Decision Date: 09 July 1986
• Docket Number: No. 85-1060,85-1060
• Citation: 793 F.2d 730
• Parties: , 16 Envtl. L. Rep. 20,862 John R. PRAGER, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of the Department of the Interior, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 730

793 F.2d 730

24 ERC 1701, 16 Envtl. L. Rep. 20,862

John R. PRAGER, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of the Department of the Interior, et al., Defendants-Appellees.

No. 85-1060.

United States Court of Appeals, Fifth Circuit.

July 9, 1986.

John R. Prager, pro se.

Albert M. Ferlo, Jr., Dirk D. Snel, Attys., Dept. of Justice, Land and Nat. Resources Div., Appellate Section, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, POLITZ and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

John R. Prager, a resident of Bastrop County, Texas, petitioned the Secretary of the Interior in an effort to designate the Camp Swift Military Reservation ("Camp Swift") in Bastrop County unsuitable for surface coal mining. See 30 U.S.C. Sec. 1272. Prager filed his petition pursuant to the terms of the Surface Mining Control and Reclamation Act of 1977 (the "Act"). 30 U.S.C. Secs. 1201-1328, which provides that areas shall be, upon petition, designated as unsuitable for surface coal mining if the regulatory authority determines that reclamation "is not technologically and economically feasible." 30 U.S.C. Sec. 1272(a)(2). After conducting extensive study, the Secretary of the Interior, acting through the Director of the Office of Surface Mining Reclamation and Enforcement ("OSM"), declined to designate the Camp Swift area as unsuitable under section 1272. Prager brought an action in federal district court seeking review of the Secretary's decision. See 30 U.S.C. Sec. 1276. The district court rejected Prager's challenge. On appeal, Prager contends that the Secretary acted arbitrarily and capriciously in his decision by failing to adequately consider the "economic feasibility" of reclamation of the Camp Swift area. After reviewing the administrative record presented to the Secretary, this Court finds that the Secretary adequately considered economic feasibility in the context of an unsuitability determination. Accordingly, we reject Prager's challenge and affirm the judgment of the district court.

A brief overview of the Act and regulations is necessary to present the instant case in the proper context. The Act provides a plan for assuring that surface coal mining will be conducted in such a manner to minimize the adverse impact of coal mining while assuring the nation an adequate supply of coal. See 30 U.S.C. Sec. 1201. Consequently, the Act provides for standards governing the performance of surface coal mining operations and the reclamation of lands upon which operations are conducted. ¹ Before any mining operation can take place, the proposed operator must submit a permit application and a reclamation plan which satisfies the requirements of the Act and the regulations promulgated under the Act.

Thus, the Act imposes environmental standards on surface coal mining and assures compliance with these standards through the permit application process. In addition to this mechanism, Congress also provided a process whereby a citizen may petition to have an entire area designated as unsuitable for all or certain types of surface coal mining operations. 30 U.S.C. Sec. 1272(c). The Act states that the Secretary "shall designate an area as unsuitable for all or certain types of surface coal mining operations if the ... regulatory authority determines that reclamation pursuant to the requirements of this [Act] is not technologically and economically feasible." 30 U.S.C. Sec. 1272(a)(2). Further, a surface area may be designated unsuitable for certain types of surface coal mining operations if such operations will

(A) be incompatible with existing State or local land use plans or programs; or

(B) affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific, and esthetic values and natural systems; or

(C) affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products, and such lands to include aquifers and aquifer recharge areas; or

(D) affect natural hazard lands in which such operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geology.

30 U.S.C. Sec. 1272(a)(3).

In enacting the unsuitability designation process, Congress noted "that the designation process is structured to be applied on an area basis, rather than a site by site determination which presents issues more appropriately addressed in the permit application process." H.Rep. No. 95-218, 95th Cong., 1st Sess. 95 (1977), U.S.Code Cong. & Admin.News 1977, pp. 593, 631. Moreover, Congress emphasized that this "section does not require the designation of areas as unsuitable for surface mining other than where it is demonstrated that reclamation of an area is not physically or economically feasible under the standards of the act." Id. at 94, U.S.Code Cong. & Admin.News 1977, p. 630. In keeping with this general nature of the unsuitability process, the regulations promulgated pursuant to the Act provide that the unsuitability process is legislative, rather than adjudicatory, in nature. See 44 Fed.Reg. 15,003-04 (1979) (discussing legislative nature of unsuitability determination under regulations); Utah International, Inc. v. Department of the Interior, 553 F.Supp. 872, 880 (D.Utah 1982). See generally Van Buskirk & Dragoo, The Designation of Coal Lands as "Unsuitable" for Surface Coal Mining Operations, 27A Rocky Mtn.Min.L.Inst. 339 (1982); Gorrell & Russell, The Petition Process for Designating Lands Unsuitable for Surface Coal Mining Operations: Extreme Solution or Unnecessary Exercise, 71 Ky.L.J. 57 (1982); Note, Designating Areas Unsuitable for Surface Coal Mining, 1978 Utah L.Rev. 321. ²

Having set the statutory and regulatory context, we turn now to the proceedings leading to the instant appeal. Prager filed his unsuitability petition with the Office of Surface Mining Reclamation and Enforcement on August 3, 1981, and filed an amended petition on October 13, 1981. The petition as amended covered approximately 9,475 acres on the Camp Swift Military Reservation. Prager based his petition on six grounds: 1) that mining would have an adverse effect on the area's water supply; 2) that the soil in the area would not support reclamation efforts; 3) that the area constituted a suitable habitat for the Houston toad, an endangered species; 4) that mining would increase flooding hazards and erosion; 5) that the area contained at least 1,000 acres of prime farmland; and 6) that at least five cemeteries were located in the area.

In response to Prager's petition, the Secretary compiled an extensive record containing technical reports concerning the allegations in Prager's petition. The Secretary's consultations extended to include economists as well as study regarding the hydrologic impact of surface coal mining in the area. The Secretary addressed each of the issues contained in Prager's petition. The Secretary's study was summarized, after a public hearing and extensive commentary from the petitioner Prager and other concerned citizens and organizations, in the final draft of the Petition Evaluation Document ("PED"). This document discussed the potential problems of surface coal mining in the area and the methods which were feasible in assuring reclamation pursuant to the requirements of the Act following any surface coal mining. ³

Based on the extensive evidence presented, the Secretary, acting through OSM Director James Harris, declined to designate the Camp Swift area as unsuitable for surface coal mining. Director Harris summarized his decision:

I decline to designate all, or any parts, of the Camp Swift petition area as unsuitable for either surface or underground coal mining. I find that there is insufficient evidence to demonstrate that, as the petitioners allege, reclamation of surface coal mining operations in the petition area, pursuant to the requirements of SMCRA, is not technologically and economically feasible. I also find that there is insufficient evidence to demonstrate that, as the petitioners further allege, surface coal mining operations...