National Wildlife Federation v. Lujan

Nos. 89-0504;-1221;-1614 (D.D.C. September 5, 1990)

The court rules on challenges to Surface Mining Control and Reclamation Act (SMCRA) regulations governing alluvial valley floors, coal exploration, and the period during which a coal mine operator must have a permit. The court first holds that the Secretary of the Interior acted within his authority in excluding ranching from the definition of "farming" on alluvial valley floors (AVFs). SMCRA § 510(b)(5) prohibits mining on western AVFs in dry areas if the mine would preclude farming, but allows mining on undeveloped range lands not significant to farming on the AVFs. The Secretary reasonably interpreted SMCRA's legislative history in deciding not to extend the ban on AVF mining to operations that would hamper ranching.

The court next addresses challenges to the coal exploration regulations. The court holds that the regulation requiring a map or narrative description of the area to be explored when fewer than 250 tons of coal will be extracted is not arbitrary and capricious. The Secretary's decision not to specify minimum standards for the narrative description, but to leave it to the regulatory authorities, was reasonable. The court holds that the rule that allows coal obtained during exploration to be sold if the sale is for coal testing purposes only is not arbitrary and capricious. Environmentalists claim that the revised rule expands the testing exemption by deleting language that limited testing to that necessary to determine the coal's properties. The court concludes that this claim is frivolous, since the Secretary strengthened the rule to guard against using testing as a cover to mine coal without a permit. The court next remands the rule implementing the Act's prohibition on exploration in areas designated unsuited to mining absent valid existing rights (VER). The Secretary did not adequately justify his decision not to adopt a proposed rule that would have required proof of VER in applications to explore in areas designated as unsuitable for mining under SCMRA § 522(e)(1), including national parks and wildlife refuges.

The court holds that rules requiring an operator to have a permit during coal mining operations, but not during reclamation, are not arbitrary and capricious. The Secretary adequately justified his decision to change his policy, which previously required an operator to renew a permit to finish reclamation activities. The Secretary pointed to a number of problems arising from the previous policy, including its inconsistency with the policy that an operator remains responsible for reclamation even if the permit is suspended or revoked. The Secretary's decision is authorized under SMCRA § 506(a) and (d), the provisions for obtaining and renewing permits, since those provisions refer only to surface mining operations. Further, the environmentalists have not pointed to any practical harm that the new rules will cause.

Counsel for Plaintiffs
Lloyd Thomas Galloway
Galloway & Greenberg
1835 K St. NW, Washington DC 20006
(202) 833-9084

Counsel for Plaintiffs
Kevin J. Haugrud
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-3522

[21 ELR 20143]

Memorandum Opinion

In this matter, the Court continues to rule on further challenges to regulations implementing the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C.A. 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.

In these three consolidated cases, environmentalist plaintiffs (the National Wildlife Federation and other groups, collectively "NWF") ask the Court to strike down certain SMCRA regulations in three areas. NWF challenges rules on alluvial valley floors, coal exploration, and the period during which a coal mine operator must have a permit for its operations. The government defendants (among others, the Secretary of Interior and the Director of the Office of Surface Mining Reclamation and Enforcement, collectively "the Secretary" or "OSMRE") ask the Court to uphold the rules as a valid exercise of their authority under the Act to regulate coal mining operations.¹ Representatives of coal mine operators (two organizations, the American Mining Congress and the National Coal Association, collectively "industry") have been granted intervenor-defendant status to oppose NWF's challenges. Within the three disputed areas, five separable issues are before the court on cross motions for summary judgment.

This past year, the Court has had before it 16 different cases in four consolidated groups calling for decisions about various SMCRA regulations. In an earlier opinion, Nat'l Wildlife Fed'n v. Lujan, 733 F. Supp. 419, 31 Env't Rep. Cas. 1007 [20 ELR 20819] (D.D.C. Feb. 12, 1990) ("NWF III, Round I"), the Court dealt with the first three cases. In Nat'l Wildlife Fed'n v. Lujan, Nos. 88-0208, 88-3200, 88-3225, 31 Env't Rep. Cas. 1617 [20 ELR 21175] (D.D.C. June 8, 1990) ("NWF III, Round II"), the Court resolved three additional cases. In Nat'l Wildlife Fed'n v. Lujan, Nos. 88-2416, 88-3345, 88-3586, 88-3635, 89-0039, 89-0136, and 89-0141, Mem. Op. (D.D.C. Aug. 30, 1990) ("NWF III, Round III"), the Court decided seven additional cases. The issues decided in this opinion resolve the fourth and last group of three cases. This is the fourth time this court has reviewed several groups of SMCRA rules.² Many issues arise from rulings made in 1984 and 1985 during the third review of SMCRA regulations. The Court remanded several regulations back to the Secretary to be revised or for additional comment, and plaintiffs challenge some of the Secretary's actions on remand. After a careful review of the statute, the Secretary's rules, and the arguments presented in the parties' briefs, the Court will rule in favor of the Secretary on all but one issue. As stated below the Court sustains all the regulations in question except for the issue of requiring a coal explorer to demonstrate VER before being permitted to explore in lands unsuited for mining. On that issue, the Court finds that the Secretary has failed to explain rationally why he did not adopt his proposed rule. The question is remanded for a better explanation.

I. Standard of Review

Having discussed this at some length in NWF III, Round I, [21 ELR 20144] 733 F. Supp. at 422, and NWF III, Round II, Mem. Op. at 3-4, the Court will simply quote the statutory command on the subject and refer to its previous elaborations of the standard of review. SMCRA § 526(a)(1), 30 U.S.C.A. § 1276(a)(1), provides:

Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law.³

II. Definition of Farming on Alluvial Valley Floors (AVF)

SMCRA's definition of alluvial valley floors uses the words "agricultural activities." Another section of the Act prescribing when an AVF may be mined refers to "farming." The Secretary has recently redefined "farming." See 30 C.F.R. § 701.5 (1989). NWF challenges the new definition because it excludes ranching from the definition of farming and permiots [sic] mining on developed range lands that are in alluvial valley floors. Finding that the Secretary has properly exercised his discretion on this matter in a manner consistent with the Act, the Court will reject NWF's challenge.

I. background

The act defines alluvial floors, and the House of Representatives' report accompanying the SMCRA bill discusses them extensively.⁴ Unfortunately, both do so in highly technical terms. As the Court grasps the term, the concept may be understood by referring to the area in the basin of the Nile River where farming is possible because the river floods the surrounding land each year. As is widely known, when the great yearly freshet of the Nile overflows the river's banks, the floodwaters irrigate the land and leave behind rich, fertile deposits in the soil. In the western United States, other rivers play a similar, if less well-known role. As Congress recognized:

Of special importance in the arid and semiarid coal mining areas are alluvial valley floors which are the productive lands that form the backbone of the agriculture and cattle ranching economy in these areas. For instance, in the Powder River Basin of eastern Montana and Wyoming, agricultural and ranching operations, which form the basis of the existing economic system of the region, could not survive without hay production from the naturally subirrigated and flood irrigated meadows on the alluvial valley floors.

H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 116, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 649.⁵

Because surface coal mining can drain or lower underground water channels or alter the course of riverflows, Congress required mine operators to "preserve throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semiarid areas of the country," that is, mostly in the western U.S. SMCRA § 515(b)(10)(F), 30 U.S.C.A. § 1265(b)(10)(F).⁶

In addition to this general performance standard applying to any mine, Congress wrote into the Act extra protection for certain alluvial valley floors. It effectively banned mining operations on [21 ELR 20145] western alluvial valley floors in dry areas if the mine would "interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated." SMCRA § 510(b)(5)(A), 30 U.S.C.A. § 1260(5)(A) (emphasis supplied). But, mining may take place on "undeveloped range lands" not significant to "farming" on the alluvial valley floors. Id.⁷

The source of this round of litigation is the difference between (1) "agricultural activities," which Congress used in its statutory definition of alluvial valley floors, and (2) "farming," the word Congress chose in specifying when mining could not take place on alluvial valley floors.

In 1983, the Secretary wrote a combined definition for "agricultural activities or farming."⁸ In the context of alluvial valley floors, he stated that the two meant the same.

Industry challenged this combined definition on the ground that Congress could not have meant the exact same thing when it used two different phrases. This Court agreed, and remanded the definition back to the Secretary. See PSMRL II, Round II, 21 Env't Rep. Cas. 1724, 1738 (D.D.C. Oct. 1, 1984). The Court stated, "The Court will not presume to define the terms, but the use of different words does not connote the intent to prescribe different meanings." Id.

In response to this Court's ruling, the Secretary promulgated a definition of "farming" different from that of "agricultural activities." The new definition of "farming" is:

With respect to alluvial valley floors, the primary use of those areas for the cultivation, cropping or harvesting of plants which benefit from irrigation, or harvesting of plants which benefit from irrigation, or natural subirrigation, that results from the increased moisture content in the alluvium of the valley floors. For purposes of this definition, harvesting does not include the grazing of livestock.

30 C.F.R. § 701.5 (1989) (published 54 Fed. Reg. 9724 (March 7, 1989)).⁹

In this regard, the Secretary essentially drew the line so that agricultural activities is one of two things: farming or ranching, with ranching being the pasturing or grazing of livestock. The upshot of the new definitions is that farming deals with crops, ranching deals with livestock, and agricultural activities encompass both farming and ranching.

The Secretary stated that he based this distinction on the legislative history of the Act on the floor of the House of Representatives. He did so because this Court had specifically directed him to examine Congressional intent in drawing up the new definitions. According to the Secretary, before passing SMCRA, Congress twice rejected language that would have broadened § 510(b)(5)'s ban on AVF mining to forbid an operation that would have hampered ranching. See Fed. Reg. 9724, 9726 (Mar. 7, 1989). The resulting final language, banning only AVF mining that would disrupt farming, thus should be understood not to reach mining operations that would hamper ranches on alluvial valley floors, according to the Secretary.

The environmentalists charge that this new definition improperly permits coal mining on developed range lands in alluvial valley floors. In NWF's view, farming includes ranching, and ranches are developed range lands. According to NWF, the sole place where § 510(b)(5) permits AVF mining is on undeveloped range land. NWF contends that if the Secretary permits AVF mining on developed range land, as a result of a definition of farming that excludes ranching, then the definition is contrary to the Act.

NWF makes two arguments. First, it asserts that the plain meaning of the statute prohibits AVF mining if it would interrupt ranching. To this end, the environmentalists contend that the dictionary definition and common usage of the words "ranch" and "farm" make them synonymous and interchangeable. Thus, NWF argues that the ban on AVF mining that interrupts farming also must bar mining that interrupts ranching. To bolster this reasoning, NWF points to the meaning of "farming" in the context of the sentence in § 515(b)(5)(A), where it is used in distinction to "undeveloped range land." NWF states, "[i]f Congress had intended that the term 'farming' should, by itself, exclude all range lands, the specific language excluding undeveloped ranged lands would have been unnecessary and wholly superfluous." NWF's Mem. in Supp. at 34.

Second, NWF takes on the Secretary's version of the Act's legislative history, which he used as the basis for distinguishing ranching from farming. The environmentalists make two points. They concede that earlier versions of § 510(b)(5) used the phrase "farming and ranching operations" and that Congress amended the section to drop "ranching." But, according to NWF, the actual text shows that ranching and farming were used interchangeably.

NWF also points to three amendments to the SMCRA bill proposed on the Senate floor, which the Secretary has cited as his grounds for concluding that Congress intended that farming not include ranching. As NWF analyzes the amendments, (1) one would have banned all AVF mining in the west, (2) one was a very narrow prohibition on AVF mining, that nevertheless barred AVF mining both on certain farms and ranches, and (3) one was a successful compromise amendment that led to the current language in the Act. In NWF's view, if the narrowest prohibition on AVF mining encompassed ranching, so,too, must have the compromise amendment embodying the middle ground between a mild restriction and a flat ban. Further, according to NWF, the House floor debate on a defeated amendment shows that Congress intended to include developed range lands within § 510(b)(5)(A)'s ban on AVF mining. Last, NWF argues that a reference in SMCRA § 714(e)(2), 30 U.S.C.A. § 1304(e)(2), to "farming or ranching operations" does not mean that the two words have different meanings. According to NWF, the phrase in this part of the Act has nothing to do with AVF mining. Rather, it shows that the two words are used interchangeably.

In response, the Secretary draws a distinction between two types of range land. He distinguishes between range land used only to graze livestock and developed range land used to grow forage for livestock. The Secretary argues that he has protected range land "developed to the point where it is used for producing critical winter forage." Fed. Defts' Mem. in Opp. at 47. "The definition of farming does afford protection to developed range lands which are crucial to livestock production." Id. at 48. He adds:

While Webster's may define ranching as a Western U.S. subset of the global definition of farming, the two terms have distinctly different meanings to farmers and ranchers of the arid and semi-arid west. Farming is generally thought of as crop production associated with supplemental irrigation. Grain production without supplemental irrigation is apt to be called dry farming or wheat ranching, depending on locality. The definition of farming adopted today is consistent with these practices and protects the irrigated areas used for stored forage production associated with cattle ranches.

Id. (quoting 54 Fed. Reg. 9724, 9729 (March 7, 1989)).

The Secretary also joins the fray over the inferences to be drawn from the various SMCRA drafts and proposed amendments leading the Act's passage. He points out that Congress changed references to both "farming and ranching" to drop ranching and retain only farming when speaking of AVF mining. He argues that the Act elsewhere speaks of ranching or farming when defining surface land owners protected under the Act. According to the Secretary, the inference that must be drawn is that Congress understood the two to differ and used both terms together when it wanted to refer to both activities. Thus when Congress speaks only of farming in § 510(b)(5), it could not have meant ranching, too.

[21 ELR 20146]

The Court must rule in the Secretary's favor. As has been said, when more than one interpretation of the Act is possible, the Secretary's interpretation, based upon his expertise in the area, deserves deference. That is so, provided that the interpretation is not contrary to the Act. Here, it is not.

The Court directed the Secretary to differentiate between agricultural activities and farming. In responding to that remand, the Secretary appears to have researched the legislative history exhaustively. The Court finds the resulting distinction that the Secretary drew to be a highly plausible, eminently reasonable interpretation of Congress' intent as reflected in its actions when considering SMCRA. Sitting in the east, this Court is not intimately familiar with the fine nuances of meaning between ranching, farming, and other activities on the land in the west.¹⁰ In this case, the Court does not have to be, because Congress has assigned to the Secretary the role of knowing and acting upon such distinctions. The Court must defer to him.

Second, to the extent that NWF interprets the statute to ban AVF mining on developed range land, as opposed to undeveloped range land, the Secretary has carried out that mandate. He defines developed range land to be land developed to the point of growing forage. In essence, the Secretary has developed a continuum that may be characterized as running from (a) unfenced, unplanted, range land upon which livestock may or may not graze, to (b) fenced, unplanted range land upon which livestock do graze, to (c) fenced and planted range land where the crop is used for forage, to (d) land used for crops for people in addition to animals. The Secretary has drawn his line between (b) and (c); NWF believes the line should be between (a) and (b). The Court finds that the Secretary's exercise in line-drawing to define developed range land is every bit as plausible as the environmentalists' proposal. In such a situation, the Secretary's choice must be upheld.

III. Coal Exploration

NWF brings three challenges to the Secretary's rules on coal exploration found at 30 C.F.R. Part 772. First, NWF attacks the rule at 30 C.F.R. § 772.11(b)(3) requiring a map or a narrative description of the area to be explored when fewer than 250 tons of coal will be removed. In NWF's view, the rule does not specify that the narrative describe the exploration area in enough detail. Second, NWF attacks the rule at 30 C.F.R. § 772.14(b) that permits selling coal obtained during exploration if the coal is sold to test it. In NWF's view, the testing exception has been weakened, although the Secretary's avowed purpose in amending the rule was to prevent bogus testing. Third, NWF complains that the Secretary improperly failed to require explorers for coal to prove valid existing rights as a prerequisite to exploring for coal in areas that the Act designates as unsuitable for mining. The Court finds no merit in the first two of NWF's challenges. The Court remands the third matter back to the Secretary.

a. general background

In addition to permit requirements for surface mining operations and reclamation, SMCRA also prescribes procedures when someone wants to explore for coal. SMCRA § 512, 30 C.F.R. § 1262. That section requires the regulatory authorities to devise rules governing exploration. At a minimum, these regulations must require that:

prior to conducting any exploration under this section, any person must file with the regulatory authority notice of intention to explore and such notice shall include a description of the exploration area and the period of supposed exploration . . .

SMCRA § 512(a), 30 C.F.R. § 1262(a).¹¹

A. 30 C.F.R. § 772.11(b)(3), narrative detail.

1. background

The challengedrule requires that an explorer include in its notice to the regulatory authority:

A narrative describing the proposed exploration area or a map at a scale of 1:24,000, or greater, showing the proposed area of exploration and the general location of drill holes and trenches, existing and proposed roads, occupied dwellings, topographic features, bodies of surface water, and pipelines;

30 C.F.R. § 772.11(b)(3) (1989) (published at 53 Fed. Reg. 52942 (Dec. 29, 1988); proposed at 53 Fed. Reg. 23532 (June 22, 1988)).¹²

This Court has dealt with a similar question twice before. In 1980, the Court struck down a rule that required an explorer intending to remove fewer than 250 tons of coal to supply both a narrative description and a map in his notice of intent. See PSMRL I, Round II, 19 Env't Rep. Cas. at 1502 (remanding § 772.11's predecessor at 30 C.F.R. § 776.11(b)(3) (1979)). The Court noted that the statute required only a description of the area to be explored. The Court then refused to read into that requirement a further dictate that the explorer submit a map together with the description. Id.

By 1984, the Secretary proposed a new rule on notice of intent. That rule, then at 30 C.F.R. § 772.11(b)(3), required the notice to include only "[a] narrative or map describing the exploration area[.]" See PSMRL II, Round III, 630 F. Supp. at 1580-81. The Court struck down the rule a second time because it "contain[ed] no standards explaining what level of detail in the map will suffice to meet the Act's requirements." Id. at 1581. Quoting the Secretary's preamble to the stricken rule, the Court stated, "[t]he purpose of the provision [§ 512(a)(1)] is to provide the regulatory authority and any interested person with an accurate description and the precise location of the proposed exploration area." Id. (bracketed material and emphasis in Court's opinion).

2a.

In the environmentalists' view, the new rule fixes only half the problem: it requires a sufficient level of detail if a map is submitted. But, if an explorer submits a narrative instead, the rule fails to specify any necessary level of detail, according to NWF. In effect, NWF argues that this Court's 1984 opinion should be read to require a sufficient minimum level of detail regardless of whether the explorer chooses to describe the exploration area with a narrative or a map. NWF asks the Court to remand the rule to be revised so that it specifies national minimum standards for a narrative description of the exploration area.

The Secretary responds that he did not specify minimum standards in a narrative description because he left that to the regulatory authorities. According to the Secretary, the Act refers to "exploration regulations issued by the regulatory authority." Fed. Defts' Mem. in Supp. at 12 (quoting SMCRA § 512(a), 30 U.S.C.A. § 1262(a) (emphasis in brief)). He adds, "the plain language of SMCRA requires regulatory authorities to issue rules . . . but does not require [the Secretary] to issue such minimum national standards on this topic. If an 'accurate description and the precise location' is not provided . . . then the narrative should be rejected by the regulatory authority." Id. at 12-13 (quoting PSMRL II, Round III).

The Secretary adds that the rule has not changed since 1979 in that it has never set standards for what must be in a narrative description when the exploration will remove fewer than 250 tons.¹³ [21 ELR 20147] The Secretary contends that Congress intended the notice requirement for smaller explorations to be "more streamlined" than those that will remove more than 250 tons of coal. Id. at 11, citing PSMRL I, Round II, 19 Env't Rep. Cas. at 1502 (pointing to Congressional desire to streamline exploration notice requirements when it deleted from § 512(a) a draft requirement for a map). In the Secretary's view, an operation extracting fewer than 250 tons is "simply not as significant and need not adhere to the same information requirements as that required of a larger operation . . . ." Id. at 11.

The Court has recognized in the past that Congress intended to cut out some of the red tape for coal exploration when the activity was so limited in scope as to run to fewer than 250 tons. The Court does so again today. The statute's language in this regard refers only to a description, and prescribes that the regulatory authority devise rules to govern what must be in the description. The Secretary has chosen not to go beyond the statute's mandate. Indeed, when he did once before, this Court struck down that rule. Further, the Secretary has fully responded to the Court's second remand. There is no basis in the Act, nor any compelling reason in common sense, to require him to do more.

Based upon the Secretary's assurances, the Court is persuaded that the provisions in this rule are adequate to enable the regulatory authorities to do their job under the Act. NWF's underlying assumption is that unless the Secretary specifies, to NWF's preferred degree of detail, how to describe an exploration area, a regulatory authority will not be able to do its job in passing on an exploration limited to 250 tons. Either NWF fears that the regulatory authority won't be able to find the exploration area without this extra bit of federal intervention or it believes that small-time coal explorers must be squeezed a little further to restrain them. The Court declines to accept NWF's implication that the regulatory authorities are either so inept or so venal that the Secretary must be forced to rescue them on this occasion. The Court finds that the Secretary's rule is adequate to the task that the Act sets for him. The Court can find no flaw in the Secretary's action that rises to the legal standard necessary to overturn his exercise of his authority. The Court upholds the rule.

B. 30 C.F.R. § 772.14(b), commercial sale for testing exemption.

Usually, an explorer that intends to remove more than 250 tons of coal during exploration may not sell the coal unless it obtains a permit for a full surface mining and reclamation operation. See 30 C.F.R. § 772.14(a) (1989). The need for such a permit subjects the explorer to the entire panoply of the Act's provisions, including performance standards for complete reclamation, enforcement, and penalties for violation of the law. In essence, the rule treats a large-scale coal explorer that intends to sell coal as no different from a surface mine operator.

The rule on commercial sales of coal produced during exploration contains an exception, however, if the coal is sold or used for testing. See 30 C.F.R. § 772.14(b). That exception states:

With the prior written approval of the regulatory authority, no permit to conduct surface coal mining operations is required for the sale or commercial use of coal extracted during exploration operations if such sale is for coal testing purposes only. The person conducting the exploration shall file an application for such approval with the regulatory authority. The application shall demonstrate that the coal testing is necessary for the development of a surface coal mining and reclamation operation for which a surface coal mining and reclamation operations application is to be submitted in the near future, and that the proposed commercial use or sale of coal extracted during exploration operations is solely for the purpose of testing the coal.

30 C.F.R. § 772.14(b) (1989) (published at 53 Fed. Reg. 52942 (Dec. 29, 1988); proposed at 53 Fed. Reg. 23532 (June 22, 1988)).

Additionally, the rule goes on to specify what must be in an application to sell coal for testing. Because of the nature of NWF's objection to this rule, it is worth taking the time to quote the rule at some length. It further states that the application to test coal must include:

(1) The name of the testing firm and the locations at which the coal will be tested.

(2) If the coal will be sold directly to, or commercially used directly by, the intended end user, a statement from the intended end user, or if the coal is sold indirectly to the intended end user through an agent or broker, a statement from the agent or broker. The statement shall include:

(i) The specific reason for the test, including why the coal may be so different from the intended user's other coal supplies as to require testing;

(ii) The amount of coal necessary for the test and why a lesser amount is not sufficient; and

(iii) A description of the specific test that will be conducted.

(3) Evidence that sufficient reserves are available to the person conducting exploration or its principals for future commercial use or sale to the intended end user, or agent or broker of such user identified above, to demonstrate that the amount of coal to be removed is not the total reserve, but is a sampling of a larger reserve.

(4) An explanation as to why other means of exploration, such as core drilling, are not adequate to determine the quality of the coal and/or the feasibility of developing a surface coal mining operation.

Id.

The Court also considers it worthwhile to quote in its entirety the former regulation:

Any person who extracts coal for commercial sale during coal exploration operations shall obtain a surface coal mining and reclamation operations permit for those operations from the regulatory authority under Parts 773-785 of this chapter. No surface coal mining and reclamation operations permit is required if the regulatory authority makes a prior determination that the sale is to test for coal properties necessary for the development of surface coal mining and reclamation operations for which a permit is to be submitted at a later time.

30 C.F.R. § 772.14 (1984) (published at 48 Fed. Reg. 40634 (Sept. 8, 1983) (emphasis supplied)).

In the preamble to the new rule, the Secretary stated that he had revised the old regulation because "[c]oncern has been raised about abuses occurring under such exceptions for 'testing purposes.'" 53 Fed. Reg. 23532, 23534 (June 22, 1988). The Secretary added that the new rule should "continue to allow valid testing, while eliminating abusive practices whereby testing is used as a means to circumvent the prohibition of commercial use or sale obtained during exploration." Id. at 23535.

2a.

NWF objects to the new rule apparently because it does not limit testing solely to that necessary to determine the coal's properties, as highlighted in the emphasized language in the 1984 rule quoted above. In the environmentalists' view, deleting the language about coal "properties" weakened the 1983 rule and expanded the exemption for testing. It quotes the Secretary's statement in the preamble that coal "test burns are sometimes required for determinations other than the quality of coal." In NWF's view, this means that the Secretary had not acted inadvertently in deleting the reference to testing for coal's properties.

The Secretary responds that he has strengthened the rule to guard against using testing as a cover to mine coal without a permit. He points to the lengthy new provisions in the new rule that require an applicant for permission to test coal to justify the request. "NWF ignores these additional requirements and instead focuses on an insubstantial, three word deletion from the 1983 rule." Fed. Defts' Mem. in Supp. at 16. The Secretary adds that the new rule enables the regulatory authority, armed with new reporting requirements, to figure out whether the proposed coal testing is a ploy or not. "The burden is now on the explorer to prove that its test burn is necessary and to demonstrate why a lesser amount of coal would not be sufficient for a test. Thus, contrary to NWF's assertion, the new rule in fact strengthened the previous regulations." Id.

[21 ELR 20148]

Frankly, the Court does not fathom this challenge, which can hardly be regarded as anything but utterly frivolous. The Secretary has gone to great lengths to correct what he finds to be a pattern of abuse. He has added a packet of additional requirements to prevent bogus testing from being used as a blind for a full-scale mining operation in violation of the Act. NWF's response is to bring a challenge based on testing coal's "properties." As even the environmentalists admit, that phrase in the old rule was vague. Now, the rule requires all manner of justification and explanation so that a regulatory authority can decide whether the testing is proper, and still the matter is before the Court.

The Court finds that the Secretary's rule is well-grounded in the Act. It responsibly deals with a problem under the Act in a well-measured way. As does the Act, it permits legitimate testing, while ensuring that a competent regulatory authority is armed with enough information to identify the unscrupulous and restrain them. The Court finds that whether the testing is for the nebulous purpose of assaying coal's properties adds nothing to the rule's scope or strength. NWF's challenge is not founded upon anything in the language of the statute; it is similarly bereft of any support in the legislative history. NWF's challenge is rejected.

C. Exploration in areas designated unsuited to mining, absent valid existing rights

On this issue, NWF asks not that the Court strike down the specific provision of a rule, but to remand the rule back to have added provisions that the environmentalists desire. NWF contends that the Secretary's rules on coal exploration should ban any mining in areas that the Act designates as unsuitable for mining unless the explorer can show that the coal would be subject to what is known as valid existing rights. The Court finds itself in a limited agreement with NWF and will remand the matter to the Secretary to develop a more logical explanation of his actions.

SMCRA § 522, 30 U.S.C.A. § 1272, requires regulatory authorities to devise a procedure to decide which, if any, lands are unsuitable for surface coal mining operations. The section also designates certain lands outright as unsuitable for coal mining operations. SMCRA § 522(e), 30 U.S.C.A. § 1272(e) states that subject to valid existing rights, no surface coal mining operations shall be permitted on lands in the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, and the National Wild and Scenic Rivers System. SMCRA § 522(e)(1), 30 U.S.C.A. § 1272(e)(1). Later numbered subsections of § 522(e) generally prohibit mining within national forests (§ 522(e)(2)), mining that harms public parks or historic sites ((e)(3)), mining near certain public roads ((e)(4)); and mining within 300 feet of most homes, schools, churches, and similar buildings ((e)(5)). These bans on mining also are subject to valid existing rights.

What constitutes valid existing rights (VER) has been the subject of extensive litigation in this Court, including an entire separate opinion. See PSMRL I, Round I, 14 Env't Rep. Cas. at 1090-92; PSMRL II, Round III-VER, 22 Env't Rep. Cas. 2257. At the time the issue now before the Court arose, the Secretary had been mulling over a new definition of VER.

In any event, when the Secretary proposed several amendments to the rules on coal exploration, including those decided above, he indicated an intention to add new rules on coal exploration activities in the SMCRA § 522(e)(1) areas.¹⁴ The proposed new rules would have required that (a) proof of valid existing rights be included in an application for a permit to explore in one of the national parks, trails, or other § 522(e)(1) [areas], and (b) the regulatory authority make a formal finding that the applicant had such valid existing rights. See Fed. Reg. 23532, 23534 (June 22, 1988) (proposing to create new rules at 30 C.F.R. §§ 772.12(b)(14) and 772.12(d)(2)(iv)). The apparent rationale for this was that coal exploration is supposed to be a prelude to conducting surface coal mining operations, or it is when the exploration successfully turns up coal. As an apparent corollary, if it is clear before undertaking exploration that any actual mining will be subject to a legal ban, then the exploration should generally should [sic] not be permitted.

In promulgating his final rules, the Secretary dropped these two proposed rules. His principal rationale was that he planned to put out a major new rule defining VER. As a result, the Secretary felt that proof of VER before exploration in 522(e)(1) areas should not be required until it was clear just what valid existing rights actually are. See 53 Fed. Reg. 52942, 52945 (Dec. 29, 1988). In response to comments that there is no basis at all for exploration if no mining permit can be obtained, the Secretary stated, "[t]here are instances when there may be compelling reasons to explore when mining permits may be denied. Mineral valuation may legitimately be necessary for reasons other than predevelopment such as for acquisition purposes or to allow assessment of potential 'takings' claims." Id. at 52946.

2a.

For openers, the environmentalists are upset not merely that the Secretary failed to require proof of VER for exploring in § 522(e)(1) areas, but also that he did not extend the rule to the areas unsuited for mining established in §§ 522(e)(2)-(5).

NWF takes issue with both of the Secretary's views stated when he abandoned the proposed new rules. According to NWF, the definition of VER is immaterial. NWF argues that "there is no legitimate reason to allow coal exploration absent VER, regardless of how VER is defined," apparently because exploration should not be permitted unless the coal found can be mined. NWF's Mem. in Supp. at 6. Absent VER on § 522(e)(1) land, the coal cannot be mined. NWF also disputes the Secretary's view that there may be reason to explore for coal that cannot be mined. According to NWF, there is no need to appraise the coal's value when the land is bought or condemned if the coal can never be mined. In essence, NWF argues that land with coal that may not be mined has no extra value greater than land with no coal.

The Secretary responds that adoption of the originally proposed rules requiring proof of VER would have represented "an abrupt change in policy." Fed. Defts' Mem. in Opp. at 18. According to the Secretary, since the Act took effect in 1977, he has never required such proof. Having proposed the change, the Secretary "did not adopt the requirement to prove VER because he did not find sufficient legal or technical justification . . . ." Id. In support, the Secretary reiterates two points. First, the Secretary states that while there are "per se prohibitions to 'surface coal mining operations'" there is "no justification for lumping exploration into that categorical prohibition." Id. at 19. According to the Secretary, "to do so would be to ignore the statutory distinction between exploration and 'surface coal mining operations.'" Id. In the Secretary's view, § 522(e) "prohibits mining but it does not prohibit exploration." Id.

Second, the Secretary maintains that there are reasons to explore even when the coal found cannot be mined. "A governmental entity may seek to acquire private coal rights in a protected area to prevent mining regardless of whether VER exists. In such circumstances, limited exploration may be necessary to determine the value of the coal." Id. at 20. The Secretary also points to the possibility that an owner may wish to "determine the quality or quantity of his coal reserve prior to deciding whether he will apply for VER." Id. N "Simply stated, under SMCRA an owner is not precluded from exploring what he owns." Id.

Last, the Secretary disparages NWF's fears that without a requirement to prove VER, the right to explore will be abused to conduct illegal mining where it is barred. According to the Secretary, the requirements for getting a permit to explore are stiff enough that the regulatory authority should be able to pick out the abusive applications and deny them.

NWF's argument on this issue has appeal. The Court is inclined to agree that exploration in lands unsuited for mining should be tied to the legal right to extract the coal. It is, therefore, not at all unreasonable to require a demonstration of valid existing rights before permitting explorers to disrupt these sensitive lands. Indeed, the Secretary recognized this when he proposed the rule. Further, [21 ELR 20149] he recognized it again when he indicated he might require such a demonstration once he has defined valid existing rights. Never has the Secretary stated that he lacks authority under the statute to implement the proposed rules.

Nevertheless, the Secretary has decided not to adopt the rule he proposed. His reason for proposing it is that the National Park Service has been concerned about exploration activities on lands unsuited to mining. As noted above, this is initially a sound reason for the rule. The question is: did the Secretary identify an equally sound reason to overcome this first rationale? The Court finds that he did not.

As the Court sees it, the Secretary has two reasons for putting aside the proposed rule. The first is that he is in the process of redefining VER, and "[u]ntil a new definition of VER is promulgated, the applicability of the proposed VER requirement for exploration cannot be clearly predicted." 53 Fed. Reg. 52942, 52945 (Dec. 29, 1988). The Court finds that the definition of VER's is immaterial to the general proposition that an explorer should have to have VER to mine in order to be allowed to explore in a restricted § 522(e) area. It would be material, however, if as a consequence of requiring VER to explore, an explorer was placed in the position of having to prove a negative. It would be most unfair to require an explorer to demonstrate that it has something that cannot be demonstrated because it is undefined. If that were the case, the Court would have to agree with the Secretary.

That is not the case here, however. Since the date the Secretary suspended most of the definition of VER, the Office of Surface Mining Reclamation and Enforcement has been busily engaged in deciding whether companies and persons have valid existing rights in certain land. See, e.g., 55 Fed. Reg. 22692 (June 5, 1990); 55 Fed. Reg. 15024 (Apr. 20, 1990) (announcements that OSMRE will pass on whether a certain individual has VER in a specific situation). See also 54 Fed. Reg. 52465 (Dec. 21, 1989) (notice of decision on existence of VER). Thus, the Court finds that the Secretary's explanation that he has no definition of VER to be insufficient. He has enough knowledge on the subject to be able to adjudicate VER. To paraphrase a famous U.S. Justice: the Secretary may not be able to define VER, but he seems to know it when he sees it. As such, his explanation that he has yet to define VER will not wash. It is not rationally or logically related to the policy proposition that he should or should not require VER as a predicate to the right to explore in § 522(e) areas. Therefore the lack of a definition does not explain the decision to abandon the proposed rule.

The Court understands the Secretary's second rationale for dropping the rule to be that there are good reason [sic] to explore for coal that cannot legally be mined. The Court agrees with NWF. It is irrational and illogical to assert that unminable mineral reserves add value to land. If the coal may not be mined, it might as well not be there. If this common sense proposition is, in fact, somehow untrue, then the Secretary must demonstrate this. Otherwise, his explanation of the need to appraise unminable coal when land is sold or condemned does not pass muster either.

Having found that the Secretary has not carried his burden in explaining his decision, the Court will remand the matter for the Secretary's further action. It is appropriate to clarify just what the Court has said. The Court is not remanding the rule back to the Secretary with instructions to adopt the rule as proposed. That is clearly beyond the authority of the Court. That being so, it should be equally obvious that the Court also cannot agree with NWF's suggestion that the proposed rules should be extended to reach all § 522(e) lands, not just § 522(e)(1) lands. Whether to do either or any of these is up to the Secretary. The Court is not saying what he should do when he reviews this matter, only that whatever the Secretary does, he should do a better job of explaining it than he did this time.

IV. Continuous Permitting

In April 1989, the Secretary amended a number of regulations. The thrust of the amendments was to remove the former requirement that a surface coal mine operator maintain a valid permit for its activity until it had completed all the reclamation that the Act requires. In particular, an operator no longer needs to renew its permit if it has finished digging out coal and only is working to reclaim the land from the effects of mining. In essence, the Secretary contends that the Act only requires a permit to be in place during "surface coal mining operations." Formerly, the rules had required the operator to have a valid permit during all "surface coal mining and reclamation operations."¹⁵ NWF attacks this change in policy as contrary to the Act. Finding NWF's challenge to be without merit, the Court will uphold the rules.

2a.

The Secretary defends his action on the ground that it better enables him to carry out his responsibilities to see that reclamation takes place. He concedes he has changed regulatory policy, which formerly required an operator to renew a permit in order to finish reclamation activities. Under the old rules, the operator had to maintain a valid permit until final bond release.¹⁶

The Secretary points to a number of difficulties caused by the rule requiring renewal of permits until bond release. First, the Secretary states that it did not square with the policy that an operator remains responsible for reclamation even if its permit is suspended or revoked. Second, according to the Secretary, it gave rise to a practical problem when an operatormined without a permit. In this instance, an unpermitted operator had to get a permit — a lengthy process — before it could begin to reclaim the mining operation. "The revised regulation furthers the policy of requiring immediate reclamation to the applicable standards without insisting that the 'wildcat' miner obtain a permit." Fed. Defts' Mem. in Opp. at 26. Third, the Secretary found that the old rules hampered him in dealing with mining that caused problems outside the permit area. According to the Secretary, the new rules give him a basis for ordering an operator to abate and reclaim such problems without waiting to obtain a new permit covering the problems that were outside of the area of the first permit. Last, the Secretary also found that the new rules eased "administrative burdens for regulatory authorities, and reduce 'red tape' costs for permittees by eliminating permit renewal proceedings which have no effect on reclamation obligations." Id. at 27. "In view of all of the benefits available without compromising protection to the environment, after considering all of the comments in the proposed rules, the Secretary promulgated final amended regulations . . . ." Id.

According to the Secretary, he has the legal authority to do this because the Act's section on permits refers only to "surface coal mining operations." SMCRA § 506(a), 30 U.S.C.A. § 1256(a), states:

. . . no person shall engage in or carry out on lands within a State any surface coal mining operations unless such person has first carried a permit issued by such State pursuant to an approved State program or by the Secretary pursuant to a Federal program.

The Secretary goes on to note that the Act defines separately both "surface coal mining operations" and "surface coal mining and reclamation operations" in SMCRA §§ 701(28) and 701(27), 30 U.S.C.A. §§ 1291(28) and 1291(27), respectively. Surface coal mining operations are any of a number of activities associated with taking coal out of the ground and processing or handling it, as well as the places where such activities take place. Surface coal mining and reclamation operations are "surface mining operations and all activities necessary and incident to the reclamation of such activities . . ." 30 U.S.C.A. § 1291(27).

According to the Secretary, not only does the section on obtaining a permit refer only to surface coal mining operations, but so does the section on renewing permits. The Secretary adds:

[21 ELR 20150]

When section 506(d) refers to the right to renew a permit, it uses the term "surface coal mining operations" or "mining operation," but when it refers to the environmental prerequisites for renewal, section 506(d) uses the term "surface coal mining and reclamation operation." 30 U.S.C. § 1256(d)(1)(B), (d)(2). Section 506(d) therefore allows renewal of authorization for "surface coal mining operations" provided that the "surface coal mining and reclamation operation" is in compliance with the applicable environmental protection standards. Nowhere does section 506(d) require renewal of a permit solely to perform reclamation.

Fed. Defts' Mem. in Opp. at 29.

According to the Secretary, he has made clear that the expiration of a permit does not end reclamation activities required under the permit. "In other words, the permit requirements including the reclamation plan, continue in force after the authorization to conduct [surface coal mining operations] activities lapses." Id. (quoting 54 Fed. Reg. 13184, 13186 (April 5, 1989, publishing final rule)). The Secretary states that he has also confirmed that "the only thing which expires is the authorization to conduct surface coal mining operations, while the obligation to complete reclamation in accordance with the approved reclamation plan of the permit does not expire until completed and, therefore, need not be renewed." Id. at 29-30 (quoting 54 Fed. Reg. 13184, 13185).

All of NWF's attacks on the new rules are based on its view that they conflict with the intent of Congress as reflected elsewhere in the statute.

First, NWF argues that § 506(a), which the Secretary uses to support his new rules, is only intended to establish the schedule for the transition from the interim program of mining regulation to the permanent program. According to NWF, the section uses the phrase "surface coal mining operations" with the "obvious intent to establish the mandate that no extractive or other coal production-related activities could occur" unless the operator complied with the Act, that is by securing a permit. NWF's Mem. in Supp. at 24. The environmentalists point out that a "permit" is defined as "a permit to conduct surface coal mining and reclamation operations issued by the State regulatory authority . . . or by the Secretary . . ." Id. at 24-25 (quoting SMCRA § 701(15), 30 U.S.C.A. § 1291(a) (emphasis supplied in brief)). Additionally, NWF points to the Senate report discussing § 506, which states that the section "provides a timetable for obtaining permits to conduct surface coal mining and reclamation operations . . ." S. Rep. No. 95-128, 95th Cong., 1st Sess. 74 (1977).

Second, the environmentalists point to SMCRA § 507, 30 U.S.C.A. § 1257, which is the substantive provision of the Act discussing what must be contained in an application for a permit. That section refers to "[e]ach application for a surface coal mining and reclamation permit." 30 U.S.C.A. § 1257(a).

Further, NWF contends that "the strongest textual indicia outside of Section 506 itself is [sic] in Section 507, which creates the obligation to obtain liability insurance commensurate with the permit obligations and the permit term in order to protect the public from damage." NWF's Mem. in Supp. at 27. Section 507 states that such insurance must "be maintained in full force and effect during the terms of the permit or any renewal, including the length of all reclamation operations." SMCRA § 507(f), 30 U.S.C.A. § 1257(f).

Third, NWF points to the performance standards for mountaintop mining, which require a review of the permit every three years, unless the applicant can prove that "the proposed development is proceeding in accordance with the terms of the approved schedule and reclamation plan." SMCRA § 515(c)(6), 30 U.S.C.A. § 1265(c)(6). In NWF's view, had "Congress intended that the permit expire upon cessation of mining, it would not have tied review of the postmining land use development to permit review." NWF Mem. in Supp. at 28-29.

According to NWF, all of these statutory provisions indicate that "Congress plainly intended the permit to be coterminous in active life with the reclamation obligations and until final bond release.["] Id. at 29.

The Court finds that the Secretary's action is not contrary to the Act. In this regard, the Court agrees with the Secretary's reading of § 506.

It should be kept in mind that the principles of administrative law are not ropes to bind the Secretary so tightly that once he has adopted a position he may never change it, no matter how much the facts underlying a policy may have changed themselves. The law permits the Secretary to alter a previous policy provided that he articulates his reasons for doing so and the new policy is not arbitrary, irrational, or contrary to the underlying act, in this case, SMCRA.

The Secretary has pointed to a number of problems arising from his previous policy. He has shown how, in certain circumstances, that earlier policy has produced undesirable results that are not in keeping with the goals of SMCRA. He has responded to this unforeseen situation by proposing a narrow change in policy that he contends will resolve or ease the problems that have arisen. Further, the Secretary has made clear that the new policy will not be allowed to frustrate other goals of the Act. In particular, the Secretary has forthrightly and repeatedly asserted that operators have a duty to perform all of the reclamation necessary to counteract the effects of their mining, whether or not they have to continue to have a valid permit.

Based upon these actions, the Court finds that the Secretary has carried his burden in law to justify a proposed change in policy. His action on this issue is not inconsistent with SMCRA, is designed to correct specific problems, and has been carefully limited to prevent any other important SMCRA goals from being frustrated. Further, the Secretary has proceeded in accordance with administrative law in proposing his changes, explaining the reasons for them, and responding to public comments. Obviously, the Secretary cannot agree with every comment made to him, and the law does not require him to do so. He need only explain the source of his disagreement. Unfortunately for NWF, the fact of the Secretary's disagreement with the environmentalists, provided it is explained, is not a basis in law for overturning the Secretary is entitled to his; when the Act admits of both interpretations, then the Secretary's prevails.

It is worth noting that the environmentalists have failed to point to even a single practical harm that these new rules will cause. NWF devotes its entire brief on this issue to an examination of the statute. While this is entirely proper, it does suggest that the change in policy does not have what might be termed harmful side effects. In the Court's experience, NWF is very skillful at identifying even the remotest possibilities in which a rule would frustrate the Act. When it does not do so, the Court is inclined to infer that NWF is unaware of any anomalous results. This does not mean that some may not arise later on, but it strongly suggests that the Court need not be concerned about any in this review of the Secretary's action. As a result, the Court will uphold the Secretary's action.

In conclusion, the Court makes the following rulings: (1) the regulation at 30 C.F.R. § 701.5 (1989) defining farming is not arbitrary, capricious, or otherwise inconsistent with law and has been promulgated lawfully; (2) the regulation at 30 C.F.R. § 772.11(b)(3) (1989) requiring a description of a map of the area to be explored for coal when fewer than 250 tons of coal will be extracted is not arbitrary, capricious, or otherwise inconsistent with law and has been promulgated lawfully; (3) the regulations at 30 C.F.R. § 772.14 (1989) concerning testing of coal are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully; (4) the Secretary's decision not to adopt proposed regulations at 30 C.F.R. §§ 772.12(b)(14) and 772.12(d)(2)(iv) was arbitrary, capricious, or otherwise inconsistent with law, and this rule is remanded to the Secretary for further action not inconsistent with this opinion; (5) the regulations at 30 C.F.R. §§ 701.11, 740.13(a)(1) & (3), 750.11(a) & (c), 773.11(a), 843.11(a)(2), 774.10, and 800.60(b), which reflect the policy that an operator need not maintain a valid permit during reclamation are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully.

As a consequence of the foregoing, the respective cross-motion of the federal defendants and industry-intervenor defendants will be granted in their entirety, except with respect to the proposed regulations at 30 C.F.R. §§ 772.12(b)(14) and 772.12(d)(2)(iv) at 30 C.F.R. On that last sole question, the motion of the plaintiffs for summary judgment is granted in that the rule is remanded to the Secretary. The remainder of plaintiffs' motion, however, will be denied in all respects. An appropriate order accompanies this opinion.

Judgment and Order

This matter came before the Court on cross-motions for summary judgment. After consideration of the motions, the memoranda of points and authorities in support thereof, the memoranda in opposition thereto, the memoranda in reply, the entire record herein, and for the reasons stated in the accompanying memorandum opinion filed this date, it is by the Court this 4th day of September

ORDERED that the following matter is remanded to the Secretary for further action in accordance with this opinion: the Secretary's decision not to adopt proposed regulations at 30 C.F.R. §§ 772.12(b)(14) and 772.12(d)(2)(iv) concerning VER and exploration; and it is further

ORDERED, ADJUDGED, and DECREED that in all other respects, the motions of the federal defendants' and intervenor-defendants for summary judgment be, and the same hereby, are GRANTED; and it is further

ORDERED that this represents a final Judgment by this Court in the following cases: C. A. Nos. 89-0504, 89-1221, 89-1614.

1. With one exception, the parties in this action are essentially the same as in NWF III, Rounds I and II, and for that matter, as in the three previous rounds of decisions issued during the past 12 years.

2. The Secretary published interim regulations under the Act in 1977, and this court ruled on challenges to them in two opinions, In re Surface Mining Regulation Litigation, 452 F. Supp. 327 [8 ELR 20407] (D.D.C. 1978) and In re Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C. 1978). These opinions were affirmed in part and reversed in part by In re Surface Mining Reclamation Litigation, 627 F.2d 1346 [10 ELR 20465] (D.C. Cir. 1980).

In 1979, the Secretary published permanent program regulations. Industry and environmentalist groups challenged hundreds of aspects of these, which this court ruled on in three opinions, In re Permanent Surface Mining Regulation Litigation I, 13 Env't Rep. Cas. 1586 [9 ELR 20720] (D.D.C. 1979) (preliminary injunction); In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. Feb. 26, 1980), 14 Env't Rep. Cas. 1083 [10 ELR 20208] ("PSMRL I, Round I"); and, In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. May 16, 1980), 19 Env't Rep. Cas. 1477 ("PSMRL I, Round II"). One aspect of these was rejected on appeal. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 [11 ELR 20941] (D.C. Cir.) (en banc), cert. denied, 454 U.S. 822 (1981).

By this time, a new Presidential Administration had taken office, and the Secretary of Interior, James Watt, decided to revamp the permanent regulations under SMCRA. As a result, the Court of Appeals remanded the entire matter back to the Secretary. Secretary Watt's program also saw extensive challenges, and the court ruled on these in In re Permanent Surface Mining Regulation Litigation II, Round I, No. 79-1144, Mem. Op. (D.D.C. July 6, 1984), 21 Env't Rep. Cas. 1193 [14 ELR 20617] ("PSMRL II, Round I"); In re Permanent Surface Mining Regulation Litigation II, Round II, No. 79-1144, Mem. Op. (D.D.C. Oct. 1, 1984), 21 Env't Rep. Cas. 1724 ELR 20481|L|729578|}] ("PSMRL II, Round II"); In re Permanent Surface Mining Regulation Litigation II, Round III-VER, No. 79-1144, Mem. Op. (D.D.C. Mar. 22, 1985), 22 Env't Rep. Cas. 1557 [15 ELR 20494] ("PSMRL II, Round III-VER"); and, In re Permanent Surface Mining Regulation Litigation II, Round III, 620 F. Supp. 1519 [16 ELR 20296] (D.D.C. 1985) ("PSMRL II, Round III"). While these were on appeal, the Court of Appeals remanded the case for this court to address questions of standing, which were decided in In re Permanent Surface Mining Regulation Litigation II, No. 79-1144, Mem. Op. (D.D.C. Aug. 10, 1987). The Court of Appeals ultimately affirmed in part and reversed in part these five rulings in Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694 [18 ELR 20646] (D.C. Cir. 1988).

3. Some explanation follows here about the structure of SMCRA and its implementing regulations. See general discussion of the structure of SMCRA in In re Permanent Surface Mining Regulation Litigation (Peabody Coal), 653 F.2d 514, 516 [11 ELR 20941] (D.C. Cir. (en banc), cert. denied, 454 U.S. 822 (1981).

SMCRA is codified as Chapter 25, Surface Mining Control and Reclamation, of U.S.C.A. Title 30, Mineral Lands and Mining. The key part of the Act for this opinion is Subchapter V, Control of the Environmental Impacts of Surface Coal Mining. SMCRA §§ 501-529, 30 U.S.C.A. §§ 1251-1279. Certain important definitions appear in SMCRA § 701, 30 U.S.C.A. § 1291.

The corresponding regulations appear at Title 30 C.F.R., Mineral Resources, Chapter VII, Office of Surface Mining Reclamation and Enforcement, Department of Interior, Parts 700-955.

In establishing a comprehensive program to regulate surface mining, and the surface impacts of underground mining, Congress directed the Secretary of Interior to devise an "interim" program to regulate surface mining within 90 days from the date of the Act, August 3, 1977. SMCRA § 501(a), 30 U.S.C.A. § 1251(a). Congress directed the Secretary to put together a permanent regulatory program within a year from the date of the Act.

A key SMCRA feature was to create a "federalist" regulatory regime assigning certain roles to the federal government and others to state agencies. Principally, Congress gave to the Secretary of the Interior, through the Office of Surface Mining Reclamation and Enforcement (OSMRE), the power to set national standards for carrying out the Act. To accommodate the widely varying conditions of coal mining throughout the country, and particularly between the eastern and western parts of the U.S., Congress gave individual states the power, if they chose, to create state agencies charged with implementing the Act and enforcing it locally. Some states had already established their own entities to do this job under state law. These state agencies are referred to in the Act and rules as "regulatory authorities."

Under the interim program, the Secretary regulated mining operations directly, unless the state already had a regulatory program. Existing state programs had to comply with the Act's interim standards and rules for an interim program. The minimum statutory standards for the interim program are set forth in SMCRA § 502(c), 30 U.S.C.A. § 1252(c), referring to certain permanent standards set forth in § 515, 30 U.S.C.A. § 1265. The rules for the interim program are set out in Subchapter B of the SMCRA rules, 30 C.F.R. parts 710-725.

Congress set up the interim program both to give the Secretary time to devise a permanent program, and to enable states to set up their own program. The Act itself sets out detailed requirements for a full scheme of permanent regulation that the federal and all state programs must meet.

The statutory regulatory scheme contains four key features: first, anyone intending to conduct a surface coal mining operation must apply for and obtain a permit to do so. SMCRA § 507, 30 U.S.C.A. § 1257. SMCRA defines surface coal mining operations broadly. The definition goes beyond just the site of a strip mine. For example, it reaches activities such as underground mining with surface impacts and coal processing. In addition to covering activities, the definition encompasses the areas where those activities take place. SMCRA § 701(28), 30 U.S.C.A. § 1291(28). The Act requires anyone seeking a permit for any of these to submit a large amount of information in the application, including a detailed plan to reclaim the area of the mining operation. Requirements of the reclamation plan are spelled out at SMCRA § 508, 30 U.S.C.A. § 1258. The Secretary has fleshed out the statutory permit and reclamation plan requirements further in Subchapter G, Parts 773-785. The key rules are: 30 C.F.R. Parts 779 and 783, minimum requirements for information on environmental resources for surface and underground mining, respectively; Parts 780 and 784, minimum requirements for reclamation and operation plan for surface and underground mining, respectively; and, Part 785, requirements for permits for special categories of mining, such as that done on farmland, mountaintops, and steep slopes, and for coal preparation plants not at a mine site.

Second, the Act also requires mine operators to post a bond or to indemnify the regulatory authority in the amount of the cost of reclaiming the operation to the full extent that SMCRA requires. SMCRA § 509, 30 U.S.C.A. § 1259. The bond must remain in place for the time necessary to reclaim the operation. The Secretary's rules on bonding requirements are at Subchapter J, Part 800.

Third, perhaps most important, the Act spells out highly detailed performance standards governing how the operation must be conducted and to what degree reclamation must take place. SMCRA § 515, 30 U.S.C.A. § 1265, contains 25 performance standards, many with several sub-parts, for surface mining operations generally, and others for special kinds of surface operations, such as steep-slope mining. Underground mining performance standards almost as numerous are spelled out at SMCRA § 516, 30 U.S.C.A. § 1266. The Secretary has fleshed these out in Subchapter K, Parts 800-828. Probably the two most important are Parts 816 and 817, governing surface and underground mining, respectively. Other standards cover auger mining, mining in alluvial valley floors, and mining on prime farmland.

Fourth, the Act gives the Secretary and state regulatory authorities the power to enforce the Act's provisions through inspections and orders to cease operations. SMCRA § 521, 30 U.S.C.A. § 1271.

At the conclusion of the interim or initial program, as noted, states had the option of submitting their own programs to the Secretary to be implemented in lieu of the permanent program of direct federal regulation. SMCRA requires the Secretary to approve these programs before they may replace the federal effort. While the state programs may differ from the federal one, the Secretary may not approve a state program unless he determines that the state effort meets all of the federal minimum standards. SMCRA §§ 503, 30 U.S.C.A. § 1253. The rules for various individual state programs are contained at Parts 901-950. Some 35 states have their own programs. In the other states, and on certain federal lands, the direct federal permanent program is in effect.

Even when a state has its own program, the Secretary retains the power to oversee the program, to approve amendments, to carry out his own enforcement in certain instances, and ultimately to "seize" or federalize a state program and resume a direct regulatory role.

4. The Act defines alluvial valley floors as:

the unconsolidated stream laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas which are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation and windblown deposits;

SMCRA § 701(1), 30 U.S.C.A. § 1291(1); see also H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 116-20, reprinted in 1977 U.S. Code Cong. & Admin. News 593, 649-52.

5. Subirrigation occurs when land is watered from below, for example, through a porous, underground pipe. See Webster's Seventh New Collegiate Dictionary at 874 (1970). Natural subirrigation may occur because an aquifer, that is water carried through a layer of permeable rock, sand, or gravel, runs beneath the land's surface. Id. at 44. With respect to alluvial valley floors, the Secretary has defined subirrigation to be "the supplying of water to plants from underneath or from a semisaturated or saturated subsurface zone where water is available for use by vegetation." 30 C.F.R. § 701.5 (1989).

6. Hydrologic functions are the land's ability to distribute and circulate water on the land's surface and in the soil and underlying rock. See Webster's Seventh New Collegiate Dictionary 408 (1970). The Secretary has defined "essential hydrologic functions" as "the role of an alluvial valley floor in collecting, storing, regulating, and making the natural flow of surface or ground water, or both, usefully available for agricultural activities by reason of the valley floor's topographic position, the landscape, and the physical properties of its underlying materials. A combination of these functions provides a water supply during extended periods of low precipitation." 30 C.F.R. § 701.5 (1989).

7. Also excluded from the ban are lands where the interrupted farming is so small that it will hardly affect the farm's agricultural production. Id.

8. In 1979, the Secretary had promulgated a regulatory definition of "agricultural activities," but not one for "farming." See 30 C.F.R. § 701.5 (published at 44 Fed. Reg. 15137 (Mar. 13, 1979)). In the 1983 overhaul of the SMCRA regulatory regime, the Secretary altered the definition slightly and made it apply to both "agricultural activities or farming." See 30 C.F.R. § 701.5 (published at 48 Fed. Reg. 29820).

9. In comparison, the rules now define "agriculture activities" to be:

With respect to alluvial valley floors, the use of any tract of land for the production of animal or vegetable life, based on regional agricultural practices, where the use is enhanced or facilitated by subirrigation or flood irrigation. These uses include, but are not limited to, farming and the pasturing or grazing of livestock. These uses do not include agricultural activities which have no relationship to the availability of water from subirrigation or flood irrigation practices.

30 C.F.R. § 701.5 (1989) (published 54 Fed. Reg. 9724 (March 7, 1989)).

10. The following is not the basis of the Court's decision on this issue. But, it may be helpful to picture the arguments this way: for afficionados of westerns and "oaters," the distinction that the Secretary is drawing is similar to the difference between a "sodbuster" and a "cowpuncher." To some extent, NWF's argument is to the effect that Congress intended "farming" to cover both sodbusting and cowpunching. The Secretary's argument is to the effect that the two are different activities, that Congress intended to recognize this in the Act, and that the AVF mining ban extends only to "sodbusting," plus that part of cow punching where a rancher has to "bust sod" to grow food for winter forage.

11. In addition, the section requires that explorers reclaim the disturbed land in keeping with certain performance standards for surface mining operations. SMCRA § 512(a), 30 C.F.R. § 1262(a). Moreover, any explorer that intends to remove more than 250 tons of coal must apply to the regulatory authority for a permit for the exploration. SMCRA § 512(a), 30 C.F.R. § 1262(a).

12. This rule is part of Subchapter G, surface coal mining and reclamation operations permits and coal exploration systems under regulatory programs. Part 772 deals with requirements for coal exploration generally. If exploration will remove less than 250 tons of coal, the operator must only notify the regulatory authority of his intent to explore. 30 C.F.R. § 772.11 governs what must be in the notice of intent. If the exploration will remove more than 250 tons of coal, then the explorer must apply to the regulatory authority for a permit. 30 C.F.R. § 772.12 governs what must be in the application for a permit and the permitting procedures.

13. The 1979 rule required a "precise description and map . . . of the exploration area." 30 C.F.R. § 776.11(b)(3). The language of the 1983 and current rules are quoted in the text. The rules for explorations that will remove more than 250 tons require "a narrative describing the proposed exploration area." 30 C.F.R. § 772.12(b)(3)(1989). But, the explorer also must submit a detailed map of the exploration area, § 772(b)(12), along with descriptions of other features of the exploration area, such as whether there are cultural, historical, or archeological resources, or endangered species in the area. §§ 772.11(b)(8) & (9).

14. The Act's definition of surface coal mining operations at SMCRA § 701(28)(A), 30 U.S.C.A. § 1291(29)(A) specifically excludes coal exploration. Thus, the general bar on mining in areas unsuited to it does not, by itself, extend to exploration. The Secretary's rules on exploration require that any exploration in lands unsuited to mining must go through the full exploration permitting process normally required only if more than 250 tons of coal would be removed. See 30 C.F.R. § 722.12(a).

15. The rules in question are: 30 C.F.R. 701.11 (who must obtain a permit); 740.13(a)(1), (3) (permits for operations under a program of direct federal regulation); 750.11(a), (c) (permits for operations on Indian lands); 733.11(a) (general requirements to obtain permits); and 843.11(a)(2) (cessation orders under federal enforcement procedures). The Secretary made certain "nonsubstantive 'housekeeping'" changes to 30 C.F.R. § 774.10. Fed. Defts' Mem. in Opp. at 27. Additionally, the Secretary amended the rule at 30 C.F.R. § 800.60(b) to require that permittee must continue to carry liability insurance until it completes reclamation, regardless of whether it renews its permit.

16. See discussion of the structure of the Act in footnote 3 above. In order to conduct a surface coal mining operation, not only must an operator obtain a permit from a regulatory authority, but it most [sic] post a bond (or provide some other form of indemnification) in an amount to cover the cost of doing the reclamation required under the Act. The bond may not be fully released until reclamation is complete. One of the reclamation activities that an operator must perform is to "revegetate" the mined area, that is restore the plant life and grass cover to the soil to prevent erosion. The Act requires an operator to be responsible for seeing that revegetation is a success, that is that the new plants take and survive, for a period of five years, except in dry areas (mostly the West) where the operator must be responsible for ten years.