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National Mining Ass'n v. Department of the Interior

ELR Citation: 26 ELR 20361
Nos. Nos. 94-5351 et al., 70 F.3d 1345/41 ERC 1801/(D.C. Cir., 12/12/1995)

The court affirms a district court decision upholding the U.S. Department of the Interior's (DOI's) denial of a petition to repeal a Surface Mining Control and Reclamation Act (SMCRA) regulation permitting DOI to issue notices of violation (NOVs) to mine operators in primacy states. The court first holds that appellant mining association has standing to bring this action. The association demonstrated that it has suffered sufficient injury-in-fact. The association asserts that it is the representative of mine operators caught in the regulatory crossfire between state and federal authorities, and its members have incurred expenses attempting to appease the two competing regulators. Also, its members are subject to costly uncertainty as to which standards they must meet. Because the association has standing, the court need not determine whether the other appellant has standing. The court next holds that under SMCRA §526(a)(1), the district court lacked jurisdiction over the challenge to the NOV rule to the extent that the challenge is based on grounds that existed within 60 days of the rule's 1979 adoption or 1983 readoption. All the arguments appellants make in support of their claim that the rule is ultra vires of SMCRA were available at the time DOI adopted the rule. And Congress expressly indicated that review is barred unless and only to the extent that it is sought on grounds arising after the 60th day. The court next holds that the petition is not timely under the "reopener doctrine," which allows judicial review where an agency is reexamining its former choice. Although appellants brought the challenge within 60 days of DOI's denial of the petition, the court discerns no evidence that DOI reexamined the NOV rule. Nor did DOI reopen the NOV rule by granting the petition to the extent that it requested DOI to modify the standard under which DOI determines the adequacy of state responses to 10-day notices. And DOI's denial of the petition for rulemaking to repeal the rule does not evince the kind of agency reconsideration sufficient to give rise to judicial review. There was no indication that DOI had undertaken a serious, substantive reconsideration of the rule. The court next holds that the district court properly exercised jurisdiction as to aspects of the petition that were based on grounds arising after the 60th day. But the scope of the court's review of an agency's denial of a petition for rulemaking is quite limited. Given the narrow scope of review and DOI's adequate response to the concerns expressed in the petition, the court holds that DOI did not act unreasonably in denying the petition for rulemaking. The court finally affirms the district court judgment dismissing all counts. Although the district court granted summary judgment on the merits as to all claims, this court has the discretion to uphold a summary judgment under a different legal theory and rest the affirmance on any ground that finds support in the record.

Counsel for Appellants
Joseph M. Klise
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Counsel for Appellees
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: SILBERMAN, SENTELLE, and HENDERSON, Circuit Judges.