The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE
Plaintiffs Indiana Coal Council, Inc., National Coal Association, American Mining Congress, (collectively, "Industry plaintiffs"); National Trust for Historic Preservation in the United States; Society of Professional Archeologists; National Conference of State Historic Preservation Officers; Kentucky Organization of Professional Archeologists; Council for West Virginia Archaeology; Council for the Conservation of Indiana Archaeology, Inc.; and Ohio Archaeology Council (collectively, "National Trust plaintiffs") initiated these consolidated actions for declaratory and injunctive relief against the Secretary of the Interior, the Director of OSM, and the United States Department of the Interior (collectively, "defendants" or "Federal defendants"). Industry plaintiffs contend that the Secretary of the Interior (the "Secretary") has promulgated regulations under the Surface Mining Control and Reclamation Act ("SMCRA" or the "Act"), 30 U.S.C. §§ 1201 et seq., that place burdensome responsibilities for identifying and evaluating unknown historic and archeological resources on applicants for state mining and exploration permits. In particular, Industry plaintiffs challenge provisions in the rulemaking that a state regulatory authority ("SRA"), in a permit application or as a condition of permit issuance, may require surveys to identify unknown historic sites or may condition a permit to prevent or mitigate damages to those sites. They seek an Order remanding the regulations promulgated on February 10, 1987 to the Secretary in order to replace his preambles with a clear and consistent statement of what the regulations require or to eliminate the duties imposed by said regulations.
In contrast, National Trust plaintiffs
argue that although the regulations are authorized, they do not go far enough in implementing the Secretary's responsibilities under the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq. Consequently, National Trust plaintiffs seek a declaration that OSM
has failed to comply with the NHPA and SMCRA by failing to ensure the identification and consideration of historic properties subject to adverse effects from surface mining, a court-supervised plan for protection of historic properties, and an injunction against future unspecified undertakings.
The parties have since filed cross motions for summary judgment.
For the following reasons, Industry plaintiffs' motion is denied, National Trust plaintiffs' motion is granted, and Federal defendants' motion denied.
The NHPA was enacted by Congress in 1966 to implement a congressional policy to encourage the preservation and protection of America's historic and cultural resources. The NHPA also created the Advisory Council on Historic Preservation, an independent federal agency, which is responsible for, among other things, "reviewing the policies and programs of Federal agencies and recommending to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under [the NHPA]." 16 U.S.C. §§ 470i, 470j.
Section 110 of the NHPA, Id. § 470h-2, defines the responsibilities of federal agencies for historic preservation. Section 110(d) requires that all federal agencies carry out their programs and projects, "including those under which any Federal assistance is provided or any Federal license, permit, or other approval is required," in accordance with the purposes of the NHPA and that all agencies give consideration to programs and projects that will further the purposes of the NHPA. Id. § 470h-2(d).
Similarly, Section 106 of the NHPA provides:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State . . . shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking.
Id. § 470f. The Advisory Council has promulgated regulations that implement the requirements of the NHPA by setting out a specific consultation process in which federal agencies must engage in order to satisfy their responsibilities under Section 106. See 36 C.F.R. Part 800.
The requirements of Section 106 apply to all federal or federally assisted undertakings that may affect historic properties.
Section 800.2(o) of the Advisory Council's regulations defines the term "undertaking" as:
Any project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects. The project, activity, or program must be under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency. Undertakings include new and continuing projects, activities, or programs and any of their elements not previously considered under section 106.
One type of undertaking by OSM that may adversely affect historic properties is the Secretary's approval of applications for primacy by SRAs. Another type of undertaking by OSM that may adversely affect historic properties is OSM's periodic approval of amendments to state programs once primacy has been granted to a state, i.e. OSM has delegated its regulatory authority to a state. Similarly, OSM's authorization of the issuance of permits for the surface mining of coal, on federal lands and in those states where OSM is the primary regulatory agency, is also an undertaking.
Pursuant to the Council's regulations, the agency must identify those historic properties that may be affected by the undertaking. The agency is responsible for identifying not only previously recorded properties but also those that are eligible for inclusion in the National Register and yet are unknown or unrecorded prior to the identification process. In order to identify historic properties, agencies initially must review available data and consult with the State Historic Preservation Officer ("SHPO") and other interested parties. Id. § 800.4(a)(1). Based on this review, the agency "should determine any need for further actions, such as field surveys and predictive modeling, to identify historic properties." Id. § 800.4(a)(2).
Once historic properties have been identified, the agency, in consultation with the SHPO, must determine the nature of the effect that the proposed undertaking will have on those historic sites. Id. § 800.5. If the agency and the SHPO agree that the undertaking will have no effect or no adverse effect on any historic properties, then the agency may proceed with the undertaking as planned. Id. § 800.5(b). If, however, the parties agree that there could be an adverse effect on historic property, or if the SHPO or the Advisory Council disagree with the agency's determination of effect, further consultation is required. Id. §§ 800.5(c), (d), (e).
Under 36 C.F.R. § 800.5(e), the agency shall notify the Council and shall consult with the SHPO to seek ways to reduce the effects on historic properties. Any affected person or group may ask to participate in the process, and, at a minimum, the consulting parties include the agency and the SHPO and often the Advisory Council. Id. § 800.5(e)(1).
If the parties to the consultation agree upon how the effects will be taken into account, they may execute a Memorandum of Agreement ("MOA"). Id. § 800.5(e)(4). If the agency carries out the terms of the MOA, the agency will have satisfied its Section 106 responsibilities. However, "failure to carry out the terms of a Memorandum of Agreement requires the Agency Official to resubmit the undertaking to the Council for comment in accordance with § 800.6." Id. § 800.6(c)(1).
In addition to the case-by-case review process described above, there are two alternative methods for agencies to comply with the requirements of Section 106: a Programmatic Agreement or counterpart regulations. A Programmatic Agreement ("PA"), formerly referred to as a Programmatic Memorandum of Agreement ("PMOA"), may be used as an alternative to case-by-case review when an agency is involved in a large and complex project, or when a program involves a class of undertakings that would otherwise require numerous and repetitive individual requests for comments. Id. § 800.13(a). A PA is negotiated between the Advisory Council, the agency, and either the SHPO with jurisdiction over the program or the National Conference of State Historic Preservation Officers in the case of a program that involves more than one state. Id. § 800.13(b). As with the MOA, an approved PA "satisfies the Agency's section 106 responsibilities for all individual undertakings carried out in accordance with the agreement until it expires or is terminated." Id. § 800.13(e). If, however, the terms of the PA are not carried out or if such agreement is terminated, the Agency Official shall comply with the case-by-case review process outlined in 36 C.F.R. §§ 800.4-800.6.
Counterpart regulations provide the third method of compliance with Section 106. Id. § 800.15. As the Council's regulations provide, "In consultation with the Council, agencies may develop counterpart regulations to carry out the section 106 process. When concurred in by the Council, such counterpart regulations shall stand in the place of these regulations for the purposes of the agency's compliance with section 106." Id.
Section 522(e) of SMCRA, 30 U.S.C. § 1272(a)(3), protects certain properties by providing:
Upon petition pursuant to subsection (c) of this section, 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
OSM, a division of the United States Department of the Interior, was created by SMCRA and is responsible for issuing permits for the surface mining of coal; granting or denying approval to state regulatory authorities for the primary regulation of surface coal mining; approving or denying proposed amendments to state programs; providing annual grants to fund state programs; and monitoring the state programs through a process of oversight. OSM may delegate its regulatory authority to states through delegation of "primacy." Primacy is granted to the SRA if the state has demonstrated both that it has adequate personnel and other resources to enforce the requirements of SMCRA within the state and that the state's statutory and regulatory requirements are no less stringent than or less effective than SMCRA and its regulations. See 30 C.F.R. Part 730. OSM also grants funds, on an annual basis, to states that have received grants of primacy from OSM, and OSM places binding conditions upon the acceptance and expenditure of those funds by the SRAs. 30 C.F.R. Part 735.
SMCRA recognizes that "the Secretary, acting through the Office, shall . . . perform such other duties as may be provided by law and relate to the purposes of this chapter." 30 U.S.C. § 1211(13). In addition, OSM has incorporated into its own regulations the requirement that "each regulatory program shall, to avoid duplication, provide for the coordination of review and issuance of permits for surface coal mining and reclamation operations with applicable requirements of . . . The National Historic Preservation Act of 1966, as amended." 30 C.F.R. § 773.12.
In March 1979, OSM promulgated regulations, pursuant to SMCRA, that offered protection to historic properties threatened by the surface mining of coal operations. SMCRA prohibits mining that affects historic properties that are listed on the National Register of Historic Properties, but the statute does not explicitly protect historic properties eligible for listing in the National Register. Litigation before this Court challenged OSM's 1979 regulations as beyond the scope of SMCRA. In re Permanent Surface Mining Regulation Litigation, No. 79-1144 (D.D.C. 1980). On November 27, 1979, however, OSM voluntarily suspended those provisions of the regulations to the extent such rules applied to any places eligible for listing.
On November 6, 1980, the Advisory Council, OSM, and the National Conference of State Historic Preservation Officers entered into a PMOA, pursuant to 36 C.F.R. § 800.8 (1980), that required OSM to provide the Advisory Council with an opportunity to comment on applications for primacy by state programs prior to OSM's approval of those applications. In addition, OSM agreed in the PMOA to consult with the Advisory Council prior to approving amendments to state programs, and to require the SRAs to consult with their SHPOs prior to issuing mining permits. The PMOA also placed a duty on OSM to propose regulations, by May 6, 1981, that would establish a procedure for the states to follow regarding OSM's duties under the NHPA. The PMOA required that OSM provide the Advisory Council with an opportunity to comment on the regulations and to take the Advisory Council's comments into account in promulgating its final regulations.
On July 30, 1985, the Acting Director of OSM addressed the Public Lands Subcommittee (the "Subcommittee") of the House of Representatives Committee on Interior and Insular Affairs. The Subcommittee had requested that OSM respond to specific questions, and the response to those questions was submitted in tandem with the OSM Director's testimony on July 30, 1985. At that time, OSM stated to the Subcommittee that "the provisions for the consideration of historic sites is required through the approved State program permitting process." Response to Subcommittee's Questions on Historic Preservation; July 30, 1985; attached as Appendix 20 to National Trust Plaintiffs' Motion for Summary Judgment ("NT's Motion"), at 2. OSM maintained to the subcommittee that the SRAs may require applicants to conduct field surveys and undertake appropriate mitigation. OSM explained that additional requirements on the SRAs are found in OMB Circular A-102, wherein: "Grantees assure that they will assist the Federal grantor in its compliance with section 106 . . . by consulting with the SHPO . . ., notifying the Federal grantor of the existence of [listed or eligible historic] properties, and complying with all requirements established by the grantor to avoid or mitigate effects upon such properties." Appendix 20, at 3. OSM explained the status of the 1980 PMOA as follows: "In 1980, OSM entered into a PMOA with the Advisory Council on Historic Preservation that addressed the approval of State regulatory programs. That PMOA is no longer relevant since State programs have been approved. OSM has had several meetings with the Advisory Council to explore the scope and content of its program." Appendix 20, at 3. With regard to whether any law prevents OSM from protecting historic properties, the agency responded: "OSM is responsible for regulating surface coal mining activities that by their nature, could disturb or destroy historic properties. . . . We know of no legal requirement which conflicts with or impedes fulfilling our historic preservation agreement." Appendix 20, at 7.
On September 27, 1985, the Executive Director of the Advisory Council corresponded with Dr. Brent Wahlquist, the official then designated by OSM to respond to questions regarding historic properties. In that correspondence, the Advisory Council stated:
The regulatory language proposed by the petition would in effect pass through the responsibility for compliance with Section 106 of the . . . NHPA . . . to the SRAs. We are not certain that a legitimate statutory basis exists for such a direct delegation of responsibility . . . . OSM's position on this matter has been inconsistent, in our view. On the one hand, OSM has regularly held that ". . . section 106 . . . does not apply directly to decisions by a State regulatory authority" (Jed Christensen testimony, House Public Lands Subcommittee, July 30, 1985). On the other hand, OSM has argued before the U.S. District Court for the District of Columbia that "the Secretary ensures that each state program . . . provides for the coordination of permit issuance with the NHPA" (Government brief in re: Permanent Surface Mining Regulations Litigation, Civil Action No. 79-1144, page 82). OSM's argument persuaded the court that "the Secretary's responsibility under the NHPA are [sic] carried out via other regulations that, for example, require that permit issuance be coordinated with the NHPA" . . . . If OSM did not mean to convince the court that the Secretary's responsibilities under Section 106 were adequately fulfilled by passing through such responsibilities to the SRA, it is difficult to imagine what OSM did mean. OSM has further acknowledged . . . that OMB circular A-102 . . . requires each SRA to "assist the Federal grantor in its compliance with Section 106 . . ." by consulting with the . . . SHPO . . . on the identification of historic properties, notifying OSM of historic properties subject to effect, and complying with whatever OSM requires with respect to avoidance or mitigation of such effects . . . . This requirement appears to delegate the "legwork" of Section 106 review to the SRA, while retaining in OSM the actual responsibility to comply with the statute.
Letter from Robert R. Garvey, Jr., Executive Director, Advisory Council on Historic Preservation; to Dr. Brent Wahlquist; dated September 27, 1985; attached as Appendix 21 to NT's Motion, at 1-2.
On February 10, 1987, OSM promulgated its final rules concerning the protection that state regulatory agencies under SMCRA must afford to historic properties that may be affected by surface ...