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PUBLIC LANDS INST., INC. v. ANDRUS

September 19, 1980

The PUBLIC LANDS INSTITUTE, INC. et al., Plaintiffs,
v.
Cecil D. ANDRUS et al., Defendants



The opinion of the court was delivered by: HART

This cause has come on for hearing before this Court upon cross motions for Summary Judgment involving the effective date of the federal lands program for regulation of surface coal mining. Plaintiffs object to the December 31, 1979 regulation promulgated by the Secretary of the Interior (hereinafter, "December 31, 1979 Rule"), amending 30 C.F.R. § 701.11 and § 741.11, postponing operator compliance with the permanent program for regulation of surface coal mining on federal lands until approval of a state program or implementation of a federal program for a state. Defendants claim that this regulation is neither unreasonable, nor arbitrary or capricious. *fn1"

 Congress enacted the Surface Mining Control and Reclamation Act of 1977 to provide for cooperative state and federal regulation of surface coal mining activities on federal and non-federal lands. The Surface Mining Control and Reclamation Act (hereinafter, "The Act") established a two tiered regulatory program to be implemented in distinct phases. First, an interim regulatory program was created to address the more serious environmental degradation and to provide for a smooth transition into the permanent program. *fn2" Specific regulations were promulgated on December 13, 1977, pursuant to Section 502 of The Act, 30 U.S.C. § 1252. 42 Fed.Reg. 62639, et seq. During the interim phase, the Secretary and the states share responsibility for enforcement of the regulatory program. According to Section 502(b) of The Act, states issue permits during this period which require compliance with the performance standards of Section 502(c). The Secretary implements a federal enforcement and inspection program in each state, pursuant to Section 502(e). The interim regulatory program will remain in effect in a particular state until that state has had its permanent program approved pursuant to Section 503 or a permanent federal program has been implemented pursuant to Section 504.

 The second phase of the regulatory program-the permanent program-is provided for in Section 501(b) of The Act. That section requires the Secretary to promulgate regulations setting forth a "permanent regulatory program" which establishes procedures and requirements for preparation, submission, and approval of permanent state programs and for implementation of federal programs. These regulations are to include compliance with the full range of requirements of Title V, including all the performance standards set forth in Section 515 of The Act, not just those applicable to the interim program. The permanent program only becomes operative after a state program is approved under Section 503 (30 U.S.C. § 1253), or a federal program is promulgated, in lieu thereof, under Section 504 of The Act (30 U.S.C. § 1254). *fn3" On March 13, 1979, the Secretary, pursuant to Section 523 of The Act, promulgated the permanent phase of the federal lands program. 44 Fed.Reg. 15332. Thereafter, the State of Montana filed a petition with the Secretary recommending that the effective date for operator compliance with the permanent federal lands performance standards be postponed for all operations in states with approved, modified cooperative agreements until after the state program approval or implementation of a federal program for a state. Five additional states subsequently joined with Montana in petitioning for a postponement of the effective date for operator compliance. On September 28, 1979, the Office of Surface Mining published a notice proposing to amend the schedule for operator compliance with the permanent regulatory program on federal lands until approval of a state program or implementation of a federal program in lieu thereof. 44 Fed.Reg. 56272-275. After receiving and considering comments from the states, coal industry, and environmental groups, the Secretary decided to promulgate the current regulations on December 31, 1979, which postponed operator compliance with the permanent program on federal lands for all operations, including new operations, in all states until approval of a state program or implementation of a federal program for a state. The requirements of the initial interim regulatory program continue in effect. States with adequate regulatory programs existing on the date of enactment of The Act have been allowed to continue primary regulatory control of state lands under the interim program and joint state/federal regulation of federal lands pursuant to cooperative agreements between the states and the Secretary under Section 523(c) of The Act. 30 U.S.C. § 1273(c).

 The submission and approval of state programs is "moving expeditiously." Oral Argument; September 18, 1980. State programs have already been approved for Wyoming, Montana, and North Dakota. Oral Argument; September 18, 1980. Colorado, Utah, and Arizona have all submitted programs that the Secretary is "actively reviewing." Oral Argument; September 18, 1980. These programs will cover almost all of the relevant coal producing land. The Secretary must complete his review of state programs by January 3, 1981. By July 3, 1981, all states must have a program approved under Section 503, or a federal program promulgated in lieu thereof under Section 504.

 Plaintiffs are seeking to vacate the December 31, 1979 Rule and to obtain reinstatement of the regulations promulgated on March 13, 1979 (44 Fed.Reg. 15312, at 15322 and 15333).

 This Court has considered the legal memoranda and arguments of counsel and the affidavits, exhibits, and pleadings submitted therewith. It appears to this Court that no genuine issue exists as to any material fact. It also appears to this Court as follows:

 I. THE SECRETARY'S DECEMBER 31, 1979 RULE IS CONSISTENT WITH § 532(a) OF THE SURFACE MINING ACT, 30 U.S.C. § 1273(a), AS WELL AS WITH APPLICABLE RULES OF STATUTORY CONSTRUCTION.

 Plaintiffs argue that the language of § 523(a), 30 U.S.C. § 1273(a), requires promulgation and implementation of a federal lands program "no later than one year after the date of enactment" of The Act. Therefore, plaintiffs maintain that the December 31, 1979 Rule which revokes that program until 60 days after the effective date of a state or federal program in any state, constitutes a failure to implement the federal lands program, and therefore a failure to perform a non-discretionary duty. It is clear, however, that the Secretary did not "fail to perform a mandatory duty" of implementing the federal lands program because, since Sections 523(a) and 523(c) of The Act are in conflict, The Act is ambiguous and the Secretary must use his discretion to resolve the conflict.

 A court must give effect to every clause and part of an ambiguous statute. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 52 S. Ct. 322, 76 L. Ed. 704 (1932); Klein v. Republic Steel Corp., 435 F.2d 762 (3rd Cir. 1970). Statutory interpretation requires more than concentration upon isolated words. Rather, "consideration must be given to the total corpus ..." Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 250, 90 S. Ct. 1583, 1592, 26 L. Ed. 2d 199 (1970).

 The December 31, 1979 Rule merely reconciles these statutory inconsistencies in favor of the states' opportunity to assume primary regulatory control over federal lands. The decision to slip back the "mandatory" time frame of the federal lands program is consistent with the slippage of other time frames of The Act. *fn4" The Secretary's delay of the time frame is, therefore, consistent with the purposes of the Surface Mining Act, as well as with applicable rules of statutory construction.

 II. THE SECRETARY'S DECEMBER 31, 1979 RULE IS REASONABLE, AND IS NEITHER ARBITRARY NOR CAPRICIOUS.

 In determining whether the Secretary's interpretation of Section 523 of The Act is reasonable, a reviewing court must give the Secretary's interpretation great deference. Udall v. Tallman, 380 U.S. 1, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965). This deference is particularly appropriate in the context of an agency interpreting a new and complex statute. Train v. NDRC, 421 U.S. 60, 87, 95 S. Ct. 1470, 1485, 43 L. Ed. 2d 731 (1975). For three independent reasons, ...


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