State of Mont. v. Clark
| Decision Date | 06 February 1985 |
| Docket Number | No. 83-1982,83-1982 |
| Citation | 749 F.2d 740 |
| Parties | , 242 U.S.App.D.C. 62 STATE OF MONTANA, Appellant v. William P. CLARK, Secretary of the Department of the Interior, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
A. Raymond Randolph, Washington, D.C., with whom Christopher L. Varner, Washington, D.C., was on the brief, for appellant.
Edward J. Shawaker, Atty., Dept. of Justice, Washington, D.C., with whom Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., was on the brief, for federal appellees.
Dale T. White, Boulder, Colo., with whom Robert S. Pelcyger, Boulder, Colo., was on the brief, for appellee Crow Tribe of Indians. Martin E. Seneca, Jr., Washington, D.C., entered an appearance for the Crow Tribe of Indians.
Before WRIGHT and WALD, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
The State of Montana appeals a District Court order upholding an Interior Department regulation, 30 C.F.R. Sec. 872.11(b)(3) (1983), against a challenge that it is inconsistent with the organic statute, the Surface Mining Control and Reclamation Act, 30 U.S.C. Sec. 1201 et seq. (1982). The Crow Tribe of Indians joins the federal government in defending the validity of the regulation. In addition to this substantive issue, the case presents the threshold procedural question whether Montana's petition for judicial review of the regulation was timely. We hold that Montana's petition for review satisfied the Act's 60-day filing requirement, id. Sec. 1276(1), and is properly before this court. On the merits, we agree with the District Court and find the challenged regulation a reasonable construction of the Act.
As its title indicates, the Surface Mining Control and Reclamation Act is designed to meet two related concerns. First, Congress wished to regulate current and future strip mining operations to "protect society and the environment from the adverse effect of surface coal mining operations." 30 U.S.C. Sec. 1202(a). Toward this end, Subchapter V, id. Secs. 1251-1279, requires the Office of Surface Mining (OSM) to promulgate interim federal standards and provides that a state may take over the regulatory process by submitting a program that meets the approval of the Secretary of the Interior. See generally In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1350-1352 (D.C.Cir.1980). Second, Congress sought to provide for reclamation of land and water resources in mining areas abandoned prior to the Act's enactment on August 3, 1977. Id. Sec. 1202(h). Subchapter IV, id. Secs. 1231-1243, sets up a reclamation fund to be held in trust by the Secretary of the Interior. Id. Sec. 1231(a). Fees exacted from current operators of strip mining projects are pooled into the trust, which the Secretary is to distribute to any state or Indian tribe that has submitted an approved "abandoned mine reclamation program." Id. Secs. 1232(a) & 1235(k). Upon approval of such a program OSM must allocate funds to the state or tribe in a manner that "reflect[s] both the area from which the revenue was derived as well as the national program needs for the funds." Id. Sec. 1232(g)(1). In particular, Section 1232(g)(2) states that 50 percent of the funds "collected annually in any State or Indian reservation shall be allocated to that State or Indian reservation."
Nominally, at least, the Act draws a distinction between the role given to Indian tribes in the regulation of current mining operations and that allotted to them in the reclamation of abandoned mines. Subchapter V gives Indians no direct role in regulating current or prospective mining operations on Indian lands. Believing the jurisdictional status of those areas too unclear to permit effective allocation of the regulatory function, Congress directed the Secretary to submit a report within six months of the enactment of the Act on August 3, 1977 and propose "legislation designed to allow Indian tribes to elect to assume full regulatory authority over the administration and enforcement of regulation of surface mining of coal on Indian lands." Id. Sec. 1300(a)-(h). 1 See H.R.Rep. 94-189, 94th Cong., 1st Sess. 79 (1975). In the interim Congress decided to protect Indian lands from the potential ravages of surface mining through federal performance standards rather than state oversight. Id.
Indians are, however, given some role in reclamation of abandoned mines on Indian territory. In the final conference session, and virtually without discussion, House and Senate conferees added Section 1235(k), which reads: "Indian tribes having within their jurisdiction eligible lands [as defined in Sec. 1234] * * * shall be considered a 'State' for the purposes of [Subchapter IV]." See H.R.Rep. 95-493, 95th Cong., 1st Sess. 99 (1977). Thus Indian tribes, though denied any participation in the regulation of current mining operations, may submit reclamation plans and, if approved by the Secretary, administer the funds earmarked for this purpose. Under current OSM policy, however, the practical import of permitting tribes to submit reclamation plans is minimal. Reading the Act to prohibit assignment of reclamation authority to an entity statutorily incapable of exercising full regulatory authority, the Secretary will not approve reclamation plans submitted by a tribe until Congress has clarified the status of Indian lands under the Act. See Memorandum in Support of Federal Defendants' Cross-Motion for Summary Judgment at 13-14, reproduced in Appendix (App.) at 119-120; 47 Fed.Reg. 28580 (1982). 2 Approval by the Secretary is a prerequisite to any distribution of funds. 30 U.S.C. Sec. 1235.
This case requires us to review an OSM regulation promulgated to implement Section 1232(g)(2), the provision of Subchapter IV that sets out the allocation formula for distribution of the Abandoned Mine Reclamation Fund to eligible parties. That section mandates that 50 percent of the funds collected "in any State or Indian reservation shall be allocated to that State or Indian reservation" pursuant to an approved reclamation program. (Emphasis added.) The Act does not define "Indian reservation." It does, however, define "Indian lands" as "all lands * * * within the exterior boundaries of any Federal Indian reservation * * * and all lands including mineral interests held in trust for or supervised by an Indian tribe." Section 1291(9).
In order to implement Section 1232(g)(2), in 1978 the Interior Department issued 30 C.F.R. Sec. 872.11(b)(3) after notice and comment. The regulation, which was reenacted in identical form in 1982, largely tracked the language of Section 1232(g) but substituted "Indian lands" for "Indian reservation." 3 Thus under the regulation fees collected from mines beneficially owned by or for Indians, but outside their reservation, would go to the tribe rather than to the state, provided the Secretary approves its reclamation plan. The State of Montana challenges the regulation as "not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1982). The Secretary of the Interior and the Crow Tribe of Indians maintain that the regulation is a reasonable construction of the Act.
At stake in the case is the right to administer approximately $700,000 4 a year collected from surface mining operations in a 1.13-million-acre tract in Montana known as the "ceded strip." Under a 1904 treaty the Crow Tribe ceded the strip to the United States, but retained a beneficial interest in the substantial coal deposits in the area. See 30 U.S.C. Sec. 357 (1982). Thus, though not within the "exterior boundaries of any Federal Indian reservation," 30 U.S.C. Sec. 1291(9), the parties do not seriously dispute that the ceded strip qualifies as "Indian land" as defined by the statute. 5 Id. Accordingly, substitution of the phrase "Indian lands" for the statutory language "Indian reservation" has the effect of authorizing the Crow Tribe, rather than the State of Montana, to apply for the funds collected on the ceded strip. We note again that, although the challenged regulation has the effect of depriving Montana of funds derived from the ceded strip, it does not actually authorize any distribution to the Crow Tribe. Instead, under OSM's current interpretation of the statute, monies collected from the ceded strip are held in escrow pending congressional clarification of regulatory jurisdiction over Indian lands. 6
If, as the federal appellees argue and the District Court found, Montana's petition for review was not timely, we need not face the statutory question at all. We conclude, however, that the Act's 60-day period for judicial review ran from June 30, 1982, the date of the challenged regulation's republication, and not from October 25, 1978, the date of its original promulgation. Under controlling principles of administrative law, Montana's petition for judicial review, filed 58 days after the regulation's reissuance, was properly before the District Court.
Section 1276(a)(1) of the Act requires that petitions for review of regulations promulgated by the Secretary of the Interior be filed within 60 days of issuance of the regulations. The Secretary initially issued the challenged regulation on October 25, 1978. 43 Fed.Reg. 49940, 30 C.F.R. Part 872. Montana does not dispute that, although it had notice of the regulation and full opportunity to challenge it at that time, it elected not to do so. On December 11, 1981 OSM published "proposed rules" in the Federal Register and solicited comments from the public. 46 Fed.Reg. 60778. One of those rules, the regulation at issue in this case, was identical to that published in 1978. Id. at 60781. Apparently, the Secretary's primary motivation...
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