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National Mining Ass'n v. Babbitt

ELR Citation: 29 ELR 21113
Nos. 98-5320, 172 F.3d 906/48 ERC 1487/(D.C. Cir., 04/27/1999)

The court affirms in part and reverses in part a district court decision upholding U.S. Department of the Interior (DOI) regulations that govern damage to land, structures, and certain water supplies caused by mining subsidence. The court first holds that a regulation establishing a rebuttable presumption of causation against mining companies based on damage to structures that occurs as a result of earth movement within an area determined by a 30-degree angle of draw is arbitrary and capricious. The nature of the subsidence evidence that triggers the presumption is hopelessly embroiled in confusion, and the geographical boundary in which the presumption arises is irrationally broad. Next, the court vacates a regulation that requires all permit applicants to conduct a pre-subsidence survey of structures that may be damaged by subsidence. Although the DOI's deviation from its prior policy not to require pre-subsidence surveys was justified by the Energy Policy Act of 1992, the regulation as written must be vacated because it defines the area within which the pre-subsidence survey is required by reference to the 30-degree angle of draw.

The court then upholds DOI regulations that impose an obligation on mining permittees who use a "planned subsidence" mining technique in a "predictable and controlled manner" to minimize subsidence damage. DOI's interpretation of the phrase "predictable and controlled manner" is reasonable under the Surface Mining Control and Reclamation Act and is entitled to deference. The court also upholds a regulation that implements the Energy Policy Act's "repair or compensate" obligation. It is wholly consistent with the statute for the Secretary of the Interior to require mining companies to compensate landowners for damages to which the new federal law entitles them. Moreover, DOI stated unequivocally that any compensation owed to a landowner under the Energy Policy Act will be reduced by at least the amount previously paid in a contractual waiver of subsidence rights. In addition, the court rejects as speculative the mining association's argument that the "repair or compensate" regulation interferes with contract rights and, therefore, is a per se taking.

Counsel for Appellant
Thomas C. Means
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

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

Before Ginsburg and Garland, JJ.