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CITIZENS COAL COUNCIL v. NORTON

March 28, 2002

CITIZENS COAL COUNCIL, ET AL., PLAINTIFFS,
V.
GALE NORTON, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, DEFENDANT, AND NATIONAL MINING ASSOCIATION, INTERVENER-DEFENDANT.



The opinion of the court was delivered by: James Robertson, United States District Judge

MEMORANDUM

The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. § 1201 et seq., prohibits "surface coal mining operations" in national parks and other protected areas. Id. § 1272(e). This case, the latest chapter in fifteen years of litigation over the definition of "surface coal mining operations," presents the question whether § 1272(e) also prohibits subsidence and underground mining activities that may cause subsidence in those same parks and protected areas. The plaintiff organizations, whose members use parks and other protected areas, challenge the Secretary of the Interior's decision that § 1272(e) does not prohibit such activities. The National Mining Association, whose members mine or wish to mine coal beneath national parks and other protected areas, have intervened to defend the Secretary's decision. For the reasons set forth below, the plaintiffs' motion for summary judgment will be granted. The defendants' motion will be denied.

Background

SMCRA established a comprehensive scheme for regulating strip mining and other surface mining techniques that disturb lands used for commercial, residential, recreational, and agricultural purposes. 30 U.S.C. § 1201, 1202. One of its goals was to encourage the development and application of underground mining technologies. Id. § 1202(k). Congress was nevertheless concerned enough about the surface effects of underground coal mining, including subsidence and water pollution, that it wrote provisions into SMCRA requiring that subsidence from underground mining be prevented to the extent technologically and economically feasible, id. § 1266(b)(1), and (as of 1992) that operators repair or compensate the owners of surface rights for certain subsidence damage to homes and water sources, id. § 1309a.

SMCRA § 1272(e) bans "surface coal mining operations" outright in certain areas.*fn1 The question in this case is whether § 1272(e) also prohibits subsidence in those protected areas and underground mining activities that might lead to subsidence in those areas. The word "subsidence" does not appear in § 1272, but plaintiffs maintain — defendants disagree — that subsidence and activities leading to subsidence are included in the term "surface coal mining operations" as that term is used in § 1272(e) and defined in § 1291 (28). The issue has been raised in previous litigation but never resolved on the merits. National Wildlife Fed'n v. Babbitt, 835 F. Supp. 654, 658-60, 668 (D.D C. 1993) (Flannery, J.); In re Permanent Surface Min. Regulation Litigation, 620 F. Supp. 1519, 1552-54 (D.D.C. 1985), aff'd in part, rev'd in part on other grounds sub nom. National Wildlife Fed'n v. Hodel, 839 F.2d 694 (D.C. Cir. 1988). The Department of Interior has sent "conflicting signals" in various administrative actions. Babbitt, 835 F. Supp. at 658-60 (tracing the history in detail).

After Judge Flannery concluded in the Babbitt case that the issue needed to be resolved pursuant to notice and comment rulemaking, id. at 668, the Secretary initiated a formal rulemaking proceeding. That proceeding culminated in the issuance of a final rule that subsidence, and underground activities that may lead to subsidence, are outside the term "surface coal mining operations" as used in § 1272(e) and defined in § 1291 (28). 30 C.F.R. § 761.200 (a); 64 Fed. Reg. 70,838, 70,843 (Dec. 17, 1999). Underground mining is thus net banned in the areas protected by § 1272(e), the Secretary concluded, although such mines must comply with § 1266(b) and § 1309a by adopting measures to prevent subsidence to the extent technologically and economically feasible and by repairing or compensating for damages to homes and water sources. 64 Fed. Reg. at 70,843.

Plaintiffs filed this suit in February 2000, seeking a declaratory judgment that 30 C.F.R. § 761.200 and the Secretary's underlying statutory interpretation violate SMCRA and the Administrative Procedure Act, 5 U.S.C. § 706 (2)(A), as arbitrary, capricious, and otherwise inconsistent with law. See 30 U.S.C. § 1276 (a)(1).

Analysis

A rule issued after notice-and-comment rulemaking interpreting a statute that the Secretary administers is subject to the familiar two-step analysis outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). United States v. Mead Corp., 533 U.S. 218, 230 (2001). If the underlying statute speaks directly to the precise question at issue, the agency and the Court must give effect to Congress' unambiguously expressed intent. Chevron, 467 U.S. at 842-43; Pharmaceutical Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). If the statute is silent or ambiguous, the agency's interpretation is entitled to deference if it is a reasonable construction, even if there may be other reasonable, or mere reasonable, views. Chevron, 467 U.S. at 842-43; National Rifle Ass'n of Am., Inc. v. Rena, 216 F.3d 122, 132 (D.C. Cir. 2000).

The regulation at issue states that "[s]ubsidence due to underground coal mining is not included in the definition of surface coal mining operations under section 701 (28) of the Act . . . and therefore is net prohibited in areas protected under section 522(e) of the Act." 30 C.F.R. § 761.200 (a). The statutory definition on which this conclusion rests states:

"[S]urface coal mining operations" means —

(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. . . . Such activities include excavation for the purpose of obtaining coal including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting, leaching, or ether chemical or physical processing, and the cleaning, concentrating, or ether processing or preparation, loading of coal for interstate commerce at or near the mine site: Provided, however, That such activities do net include the extraction of coal incidental to the extraction of ether minerals . . . and
(B) the areas upon which such activities occur or where such activities disturb the natural land surface. Such areas shall also include any adjacent land the use of which is incidental to any such activities . . . and excavations, workings, impoundments, dams, ventilation shafts, entryways, . . . stockpiles . . . holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or ether property or materials on the surface, resulting from or incident to such activities.

30 U.S.C. § 1291 (28) (emphasis added). The Secretary parses the first part of this definition, underscored above, to read "activities conducted on the surface of lands in connection with [1] a surface coal mine or [2] subject to the requirements of section 1266 of this title[,] surface operations and surface impacts incident to an underground coal mine . . ." Id. § 1291 (28) (A). She notes the repeated use of the phrase "such activities" in the rest of the ...


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