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National Wildlife Fed'n v. Babbitt

ELR Citation: 23 ELR 21464
Nos. No. 91-2275 (TAF), 835 F. Supp. 654/(D.D.C., 09/21/1993)

The court vacates a determination by the U.S. Department of the Interior (DOI) that subsidence from underground coal mining was exempt from the definition of "surface coal mining operations" in §701(28) of the Surface Mining Control and reclamation Act (SMCRA) and thus would not be prohibited in protected areas by SMCRA §522(e). The court first holds that it has subject matter jurisdiction under SMCRA §526(a)(1), because DOI's issuance of the notice of inquiry (NOI) in which it announced its determination completed its decisionmaking process. The court holds that plaintiff environmental groups have standing because the threat to the group's members is sufficiently real and immediate to show an existing controversy. The existence of other mining regulations imposing protective conditions to limit possible harm from subsidence does not eliminate the groups' standing to challenge the rule.

The court next holds that DOI violated the Administrative Procedure Act (APA) by announcing its determination in the NOI without giving notice and an opportunity to comment. The court holds that the NOI was a legislative rule, not an interpretative rule, and thus not exempt from the APA's notice-and-comment requirements. DOI concedes that the NOI was a "rule" under the APA, and by determining that subsidence was not included in 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 SMCRA §701(28), DOI in essence promulgated a definition of the terms, which are undefined in the statute. Also, the NOI, by determining whether §522(e) applied to subsidence, established rights and duties that were previously uncertain.

The court further holds that it would be premature to order DOI to prepare an environmental impact statement (EIS), because without the NOI there has been no resolution of the issue of whether §522(e) applies to subsidence. The court notes that once the rulemaking has been completed, DOI must either prepare an EIS or state on the record why an EIS has not been prepared.

Counsel for Plaintiffs
Lloyd T. Gallaway
Gallaway & Associates
1835 K St. NW, Ste. 801, Washington DC 20006
(202) 833-9084

Counsel for Defendants
Alfred T. Ghiorzi
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000