compelling compliance with Section 106 of the NHPA.
Section 526(b) of SMCRA, which provides the jurisdictional basis for the National Trust plaintiffs' rulemaking review claim, expressly states: "The court may affirm, vacate, or modify any order or decision or may remand the proceedings to the Secretary for such further action as it may direct." 30 U.S.C. § 1276(b). The relief requested by plaintiffs would be based on a determination that the disputed regulations are inconsistent with law because they violate the NHPA.
Although the statute does not explicitly state that a Court may order the Secretary to come into compliance with the NHPA, it certainly does not foreclose that possibility. It is clear from the plain language of SMCRA that the Court has broad power to design an Order that, if appropriate, would "remand" the rulemaking, or portions thereof, to the Secretary or "direct" the Secretary to comply with the NHPA. Consequently, defendants' argument must be rejected.
Defendants also contend that the mandamus provision, 28 U.S.C. § 1361, provides no basis for jurisdiction or for the relief sought by National Trust plaintiffs. It is well-settled that mandamus is an extraordinary remedy and is not proper when alternative statutory remedies are available. Telecommunications Research and Action Center v. Federal Communications Commission, 242 App. D.C. 222, 750 F.2d 70, 78 (D.C. Cir. 1984). This is true whether the alternate remedies are judicial or administrative. Cartier v. Secretary of State, 165 App. D.C. 130, 506 F.2d 191, 199 (D.C. Cir. 1974), denied, 421 U.S. 947, 44 L. Ed. 2d 101, 95 S. Ct. 1677 (1975). Accordingly, defendants argue, the legal remedies provided for in SMCRA are exclusive and preclude a separate jurisdictional basis in 28 U.S.C. § 1361.
The fact that various legal remedies are noted in § 1361 does not preclude mandamus in an appropriate case. In fact, the provision on which plaintiffs rely, 30 U.S.C. § 1276(b), is broad enough to include relief crafted in accordance with 28 U.S.C. § 1361.
Defendants further contend that even assuming mandamus could be employed here for purposes of jurisdiction, it cannot provide a basis for relief for actions that are discretionary with the agency; although mandamus is appropriate to compel performance of a duty that has been withheld or refused, it may not be utilized to compel a particular discretionary result in the exercise of a mandatory duty. See Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 234-41, 92 L. Ed. 2d 166, 106 S. Ct. 2860 (1986); Wilbur v. United States, 281 U.S. 206, 218, 74 L. Ed. 809, 50 S. Ct. 320 (1930).
It does not follow, however, that National Trust plaintiffs' claims must be dismissed. Section 106 of the NHPA imposes mandatory duties on federal agencies. See Ely v. Velde, 451 F.2d 1130, 1137 & n. 21 (4th Cir. 1971). Although the implementation of those duties involves discretionary decisions, the mandatory duties of Section 106 include the responsibility to follow certain procedures when the agency's undertakings may affect historic properties. See 36 C.F.R. Part 800. As National Trust plaintiffs persuasively argue, it is the procedures that are mandatory even though the decisions made with respect to individual undertakings are discretionary, and the issue here is whether those procedures comply with federal law. Consequently, defendants' claim that mandamus relief cannot be granted must be rejected.
2. Sovereign Immunity
Defendants also contend that the NHPA and Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551, 701 et seq., provide no bases for jurisdiction and that, as a result, there has been no waiver of sovereign immunity, a prerequisite to a court's review of a case against the federal government. As a preliminary matter, however, National Trust plaintiffs make clear that "the NHPA does not provide an independent basis for jurisdiction, and the plaintiffs did not assert it as such." National Trust Plaintiffs' Memorandum in Reply and Response to Federal Defendants' Motion to Dismiss ("NT Plaintiffs' Response"), at 3-4. Moreover, the APA does not provide a basis for subject matter jurisdiction here, Califano v. Sanders, 430 U.S. 99, 104-05, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977), and "plaintiffs have not relied on it." NT Plaintiffs' Response, at 4 n. 2. Rather, plaintiffs contend, this Court has jurisdiction over the plaintiffs' NHPA claims because plaintiffs have raised a federal question, see 28 U.S.C. § 1331, and because plaintiffs seek a declaratory judgment, see 28 U.S.C. §§ 2201-02, and mandamus relief, see 28 U.S.C. § 1361.
OSM's argument that National Trust plaintiffs' reliance on federal question jurisdiction is barred by sovereign immunity is rejected.
In the twenty-five years since the NHPA was enacted, numerous enforcement suits have been litigated and decided, and this Court is not aware of a single ruling in which an NHPA claim was barred by the doctrine of sovereign immunity. Moreover, in 1976, Congress withdrew sovereign immunity as a defense in suits against the United States, except where money damages are claimed as relief. See 5 U.S.C. §§ 702-03. The National Trust plaintiffs have not applied for money damages in this case. Finally, defendants cannot argue that Congress' waiver of sovereign immunity is dependent on whether a plaintiff alleges the APA as a basis for subject matter jurisdiction. Rather, sovereign immunity is waived as long as federal officers are named as defendants in their official capacity, a requirement that has been satisfied in this case. As the Court of Appeals for the Second Circuit has explained: "We were . . . mistaken . . . that the 1976 amendments to the APA 'did not remove the defense of sovereign immunity in actions brought under § 1331.' B. K. Instrument, Inc. v. United States, 715 F.2d 713, 725 (2d Cir. 1983) (citations omitted).
Defendants next argue that to the extent plaintiffs seek relief in the form of a plan or program for the Secretary to come into compliance with Section 106 of the NHPA, that request is mooted by OSM's activities subsequent to the rulemaking. OSM's reliance on informal activities conducted subsequent to the regulations, however, misses the point. Those activities only render the case moot if the Court decides that they successfully bring OSM into compliance with Section 106. Don't Tear It Down, Inc. v. General Services Administration, 401 F. Supp. 1194, 1199 (D.D.C. 1975). As a preliminary matter, however, OSM's own assertion that the agency has complied with Section 106 is not sufficient to prove compliance.
OSM also complains that the claims of National Trust plaintiffs are not ripe for review because plaintiffs have failed to allege the existence of a cognizable harm flowing from a formal, agency decision. Specifically, defendants contend, the Secretary and OSM are in the process of working with the states to revise and amend state programs and that National Trust plaintiffs' claims will, therefore, not be ripe until implementation of the 1987 regulations is complete. Ripeness, however, is not a cognizable challenge here.
The primary concern in assessing the ripeness of a preenforcement challenge to agency action is "the fitness of the issue for judicial decision." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). A secondary concern under the ripeness doctrine is the hardship to the parties of withholding court consideration. American Petroleum Institute v. Environmental Protection Agency, 285 App. D.C. 35, 906 F.2d 729, 739 n. 13 (D.C. Cir. 1990).
Under the Court of Appeals' decision in Eagle-Picher Indus. v. Environmental Protection Agency, 759 F.2d 905, 915 (D.C. Cir. 1985), the second component presents no difficulty. As the Court there explained:
Except where events occur or information becomes available after the statutory review period expires that essentially create a challenge that did not previously exist, or where a petitioner's claim is, under our precedents, indisputably not ripe until the agency takes further action, we will be very reluctant, in order to save a late petitioner from the strictures of a timeliness requirement, to engage in a retrospective determination of whether we would have held the claim ripe had it been brought on time. . . . Congress intended to provide prompt, uniform "pre-enforcement" review of [Comprehensive Environmental Response, Compensation, and Liability Act of 1980] CERCLA regulations to a broad class of petitioners, in order to avoid needless delays in the implementation of an important national program. . . . In determining a regulation's ripeness for review, courts should accord heavy weight to this sort of strong congressional proclamation of an agency's interest in the timing of review of its regulations.