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NATIONAL WILDLIFE FEDN. v. BABBITT

September 21, 1993

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs,
v.
BRUCE BABBITT, Secretary of the Interior, et al., Defendants.


Flannery


The opinion of the court was delivered by: THOMAS A. FLANNERY

In this matter, the Court is once again called upon to decide challenges to regulations implementing the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C. §§ 1201 et seq. The Act seeks to protect society and the environment from the harmful effects of surface coal mining, sometimes known as "strip mining," as well as damage to surface land caused by underground coal mining. The present matter comes before the Court on the parties' *fn1" cross-motions for summary judgment.

 In this case, petitioners, a group of citizen and environmental organizations, challenge the Notice of Inquiry (NOI) published in the July 18, 1991, Federal Register, by the Secretary of the Department of Interior. The NOI announced the decision of the Secretary not to pursue rulemaking in regard to the applicability of mining prohibitions to subsidence in certain protected lands. The NOI relied on a July 10, 1991, opinion of the Department's Solicitor which determined that the best interpretation of SMCRA was that subsidence was not subject to the prohibitions found in section 552(e) of the Act.

 Petitioners present both substantive and procedural challenges. Petitioners argue that the Secretary's determination is contrary to the plain language of the SMCRA, its legislative history and procedural mandates. Petitioners also challenge the NOI as a violation of the procedural requirements of SMCRA, the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. For relief, petitioners request the Court to vacate and set aside the NOI. In the alternative, petitioners request the Court to vacate the NOI as being in violation of the notice and comment requirements of the SMCRA and the APA and in violation of the NEPA for failure to prepare an environmental impact statement (EIS) and to direct that any further rulemaking comply with those requirements of the SMCRA, the APA, and the NEPA.

 In opposition, defendants argue, variously, that NWF lacks standing to pursue its challenge and that the NOI did not represent any action on the part of the Secretary. Defendants request that the Court dismiss the suit or in the alternative, uphold the NOI as a valid interpretation of the SMCRA, not requiring notice and comment.

 As stated below, the Court finds that the NOI is a legislative rule. In addition, the Court finds that the NOI was not properly promulgated pursuant to the APA. Therefore, the Court will vacate the NOI as being procedurally invalid and remand to the Secretary for further rulemaking in accordance with the notice and comment requirements of the APA.

 I. History of the Act

 A. Statutory Background

 Congress enacted the SMCRA in 1977, establishing "a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202(a). One of the goals of the SMCRA is to "assure that the rights of surface landowners . . . are fully protected from such operations," 30 U.S.C. § 1202(b), while another goal is to protect the economic well-being of the coal industry to ensure that it will be able to continue to meet the country's coal needs. Id. at § 1202(f).

 The SMCRA authorizes the Secretary to set performance standards that provide a baseline of protection for all areas from the harmful impacts of coal mining. SMCRA §§ 515, 516; 30 U.S.C. §§ 1265, 1266. Section 522(e) of the SMCRA prohibits "surface coal mining operations" in certain areas deemed too important or too sensitive to be exposed to damage from coal mining, subject to valid existing rights (VERs) and except for those operations which existed on August 3, 1977. SMCRA § 522(e); 30 U.S.C. § 1272(e). The term "surface coal mining operations" is defined at SMCRA § 701(28) as

 
(A) activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements of section 1266 of this title surface operations and surface impacts incident to an underground coal mine. . . and
 
(B) the areas upon which such activities occur or where such activities disturb the natural land surface.

 30 U.S.C. § 1291(28).

 At issue here is whether subsidence is included in the definition of "surface coal mining operations" and as such, would be prohibited from areas protected by section 522(e). Subsidence is one of the impacts of underground mining. It has been defined as "the lowering of strata overlying a coal mine, including the land surface, caused by the extraction of underground coal." Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 474, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987). Surface subsidence is an inevitable result of underground mining, particularly the longwall mining method, which does not leave in place portions of the coal. The surface impacts of subsidence can be devastating, causing damage to "buildings, roads, pipelines, cables, streams, water impoundments, wells, and aquifers." Id. at 475 n.2, quoting Blazey & Strain, Deep Mine Subsidence -- State Law and the Federal Response, 1 E. Mineral L. Found. § 1.01[2] (1980).

 B. Regulatory Background

 The Secretary promulgated permanent program regulations for surface coal mining operations under section 501(b) of SMCRA in 1979, including regulations implementing section 522(e). *fn2" 44 Fed. Reg. 14,902 (Mar. 13, 1979). Regulations at 30 C.F.R. §§ 761.11(d) through (g) implemented the distance prohibitions of section 522(e)(4) and (5), *fn3" specifying that distances should be "measured horizontally."

 The Secretary has given conflicting signals as to whether subsidence is included in the definition of "surface coal mining operations;" specifically, what a "surface impact incident to underground mining" is. During the 1979 rulemaking, OSM rejected a comment concerning the definitions at 30 C.F.R. § 761.5 that "surface operations and impacts incident to an underground mine" should be limited to subsidence. 44 Fed. Reg. at 14,990; Solic. Op. at 11 n.17. Under certain circumstances, such operations and impacts are permitted under an exception to section 522(e)(2). See SMCRA § 522(e)(2)(A). According to the Solicitor's opinion, the "negative implication would appear to be that such operations and impacts (including subsidence) are otherwise prohibited by section 522(e)." Solic. Op. at 11 n.17.

 In the preamble to the final rule prohibiting mining within 100 feet of a public road, the Secretary stated that the distance should be measured horizontally so as not to prohibit underground mining below a public road "where it would be safe to do so." 44 Fed. Reg. at 14,994. The Solicitor also notes that the negative implication from the clause -- "where it would be safe to do so" -- is that mining "under a public road should be prohibited where it would be unsafe to do so." Solic. Op. at 11 n.17.

 Later, the Secretary stated more clearly that subsidence was a prohibited "surface impact." In 1984, in discussing privately held mining claims within the Otter Creek Wilderness in West Virginia, the Secretary stated that

 
although most of the surface operations and impacts incident to such underground mining could be constructed or directed so as not to affect wilderness land certain surface impacts to the wilderness could not be avoided, namely subsidence and hydrologic effects. Thus, even the 22 percent accessible from outside the wilderness could not be recovered without causing prohibited surface impacts inside the wilderness area.

 Petitioners challenged the Secretary's interpretation of part 761 of these regulations on the issue of whether section 522(e) prohibitions applied to subsidence in In re Permanent Surface Mining Regulation Litigation (II), 620 F. Supp. 1519, 1553 (D.D.C. 1985) (PSMRL II), aff'd part, rev'd in part on other grounds sub nom., National Wildlife Federation v. Hodel, 268 U.S. App. D.C. 15, 839 F.2d 694 (D.C. Cir. 1988). In that case, the petitioners were concerned that the regulations did not "clearly and explicitly prohibit surface impacts of underground mining within the specified protected areas in §§ 522(e)(4) and (e)(5)." PSMRL II, 620 F. Supp. at 1553. Specifically, petitioners were concerned that the regulations did not bar all surface impacts, including all subsidence impacts, within the section 522(e) buffer zones. Id. The Secretary responded that the prohibitions of the regulations at 30 C.F.R. §§ 761.11(d)-(g) "extend to surface operations and surface impacts incident to underground coal mining:" the statutory language. Noting that the issue had been raised for the first time in petitioners' reply brief, the Court was reluctant to determine whether an interpretation of a regulation -- one not shown to exist anywhere in the record -- was arbitrary and capricious. Instead, this Court summarily affirmed the regulations "which track the statutory language" of section 701(28) while noting that the Secretary had committed himself to a new rulemaking with respect to the impact of §§ 522(e)(4) and (5) on underground mining. Id.

 The Secretary had committed to the new rulemaking in the spring of 1985. The Secretary recognized that the regulations at 30 C.F.R. 761.11(d)-(g) and the definition of "surface coal mining operations" do little more than track the statutory language; therefore, "these regulations do not address the interrelationship between the section 522(e) mining prohibitions and the definition of 'surface coal mining operation' in detail." 50 Fed. Peg. 13,250 (April 3, 1985). In reference to PSMRL II, the Secretary noted that it was

 
apparently unclear whether OSM's rules have the effect of prohibiting underground mining operations related to the features and facilities within the distance limits enumerated in sections 522(e)(4) and (5) of the Act. The resolution of this issue could have important consequences for the underground mining industry.

 Id. Accordingly, the Secretary intended to "propose a rule which will address the issue of what is a 'surface impact' incident to underground mining subject to the requirements of Section 516." *fn4" Id. In addition, the rulemaking would "fully explore the attendant legal, policy, environment and potential economic considerations." Id.

 In 1988, the Secretary undertook rulemaking to clarify existing rules but also to address "the broader issue of whether and to what degree subsidence is covered by the mining prohibitions set forth in section 522(e) of the Act." 53 Fed. Reg. 52,374, 52,379 (Dec. 27, 1988). The Secretary proposed two alternative section 522(e) rule options, noting that the terms "surface impacts incident to an underground coal mine" and "areas upon which such activities disturb the natural land surface," as they appear in section 701(28)(A) and (B), are not defined in SMCRA. Id. at 52,380. Invoking his discretion to define these terms, the Secretary outlined two rule options, both of which treated subsidence, in varying degrees, as a surface coal mining operation. The Secretary had also considered an option which would include a complete ban on underground mining beneath protected areas and an option that would not apply section 522(e) prohibitions to subsidence at all, but had apparently rejected these.

 In 1989, the Secretary withdrew the proposed rule for further study. 54 Fed. Reg. 30,557 (July 21, 1989). The Secretary had prepared a draft EIS on the 1988 proposed rule, but never finalized it. 54 Fed. Reg. 989 (Jan. 11, 1989). Subsequent to the withdrawal of the proposed rule, the agency issued a draft EIS which noted that the "agency has continued with the process of establishing rules for determining VER in section 522(e) areas and the extent to which subsidence is subject to the prohibitions of section 522(e) of SMCRA." 1990 Draft EIS, P. 1-6, quoted in NWF's brief at 11 n.2.

 In 1991, the agency sought from the Solicitor a legal analysis of the subsidence question. In his opinion, the Solicitor noted that, in the past, OSM had not taken a definitive position on the issue of the applicability of section 522(e) to subsidence. In fact, the Solicitor observed, in some documents, the Secretary had apparently taken the position that section 522(e) does apply to subsidence. On the other hand, the Secretary had also not required states to apply the lands unsuitable prohibitions to subsidence. As a result of these conflicting positions, the Solicitor was attempting to provide clear legal direction as "to whether OSM's preferred position is consistent with the Act." Solic. Op. at 12. The Solicitor rendered a legal opinion stating that "subsidence from underground meaning is properly regulated solely under SMCRA section 516 *fn5" and not under 522(e)." Solic. Op. at 2. Relying on the Secretary's discretion under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) to the extent that the language of the SMCRA was unclear, the Solicitor concluded that the key term in § 701(28)(A), which defines "surface coal mining operation," was "activities" not "surface impacts." Solic. Op. at 13-15.

 On July 18, 1991, the Secretary published in the Federal Register the NOI at issue here stating that subsidence is exempt from section 522(e). 56 Fed. Reg. 33,170 (July 18, 1991). The NOI sought to solicit comments on the "necessity for, and possible scope of, revisions to its current regulations applicable to underground coal mining and control of subsidence affecting lands and structures." Id. at 33,171. However, the notice also stated that

 
Based on its review of the Act and the legislative history, the comments received on the December 27, 1988 proposal, and the Solicitor's opinion, OSM [Office of Surface Mining] has decided that no further rulemaking action is necessary in regard to the applicability of section 522(e) prohibitions to underground mining. The current regulations, at 30 C.F.R. 761.11(d), (e), (f) and (g), adequately address underground mining . . . no changes to the existing regulations are necessary.

 Id. (emphasis added). In a subsequent Federal Register notice, the Secretary reaffirmed the finality of the NOI:

 
Commenters should be aware that since the issuance of the DEIS, the issue of whether and to what degree subsidence is covered by the mining prohibitions set forth in section 522(e) of SMCRA, has been resolved. See the ...

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