WESTERN FUELS-UTAH, INC., PETITIONER V. MANUEL LUJAN, JR.,
SECRETARY OF THE INTERIOR

   No. 89-1728

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-22a) is reported
at 895 F.2d 780.  The order of the district court (Pet. App. 23a-24a)
is unreported.  The decision of the Interior Board of Land Appeals
(IBLA) is reported at 98 I.B.L.A. 114.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 9,
1990.  The petition for a writ of certiorari was filed on May 8, 1990.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the government's right to readjust the terms of a
federal coal lease is waived if the government has provided the lessee
with a notice of intent to readjust before the end of the twenty-year
period specified in 30 U.S.C. 207(a), but has not provided the lessee
with the proposed terms and conditions of readjustment until after the
end of the twenty-year period.

   2. Whether Chevron deference is due to the Secretary of the
Interior's interpretation of the Mineral Lands Leasing Act.

                               STATEMENT

   1. On March 1, 1963, the Department of the Interior granted a lease
under the MiBneral LeasingAct (MLA), 30 U.S.C. 181 et seq., to a
predecessor in interest of Western Fuels-Utah, Inc. (Western-Utah) to
mine federally owned coal located near Rangely, Colorado.  The MLA
provided at the time that "(l)eases shall be for indeterminate periods
upon condition of diligent development and continued operation of the
mine or mines." 30 U.S.C. 207 (1958).  The MLA also provided, however,
that "readjustment of terms and conditions" of the lease may be made,
as determined by the Secretary of the Interior, "at the end of each
twenty-year period succeeding the date of the lease." Ibid.  /1/

   The Secretary has issued regulations concerning readjustment of
coal leases.  As they applied at the end of Western-Utah's first
twenty-year term in March 1983, the regulations provided that the
government must issue a notice of intent to readjust prior to the
expiration of the current twenty-year period.  43 C.F.R. 3451.1(c)(1)
(1982).  Notice of the proposed terms had to be received by the lessee
"as soon as possible after notice that the lease shall be readjusted,
but shall not be longer than 2 years after such notice." 43 C.F.R.
3451.1(c)(2) (1982).  The readjustment was generally effective 60 days
after the lessee received the proposed terms.  43 C.F.R. 3451.2(c)
(1982).

   2. On May 17, 1982, more than nine months before the lease was
subject to the first twenty-year readjustment, the Bureau of Land
Management (BLM), Department of the Interior, notified Western-Utah
that it intended to readjust the 1963 leases.  On May 3, 1983, two
months after the end of the twenty-year term, the BLM provided
Western-Utah the specific terms to be incorporated in the readjusted
lease, including new rental and royalty terms as well as other changes
required by MLA amendments that had been enacted in 1976.  /2/

   Western-Utah filed objections to the timeliness of the proposed
lease readjustment.  By decision dated February 7, 1985, the BLM
overruled the objections, finding that the readjustment was timely
because Western-Utah (1) received notice of the readjustment prior to
the anniversary date of the lease, and (2) received notice of terms
within two years of the notice of readjustment.  On appeal, the IBLA
affirmed the BLM's decision in relevant part.  98 I.B.L.A. 114 (1987).

   3. Western-Utah sought review of the IBLA decision in the District
Court for the District of Columbia, where its case was consolidated
with similar cases brought by Peabody Coal Company and Colowyo Coal
Company.  Pet. App. 6a.  /3/ The district court granted the
government's motion for summary judgment in a brief order (id. at
23a-24a), relying on FMC Wyoming Corp. v. Hodel, 816 F.2d 496 (10th
Cir. 1987), cert. denied, 484 U.S. 1041 (1988), and Coastal States
Energy Co. v. Hodel, 816 F.2d 502 (10th Cir. 1987).  /4/

   The court of appeals affirmed.  Pet. App. 20a-22a.  The court held
that "Chevron (U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984),) * * * controls our decision." Id. at 20a.  The
court observed that the statutory requirement that a readjustment
occur "at the end" of the twenty-year period can bear a number of
different interpretations:

      It could mean, for instance, that negotiations concerning the
      new lease terms should begin on or about the anniversary date of
      the original lease.  It could be intended to govern only the
      effective date of a readjusted lease, and to impose no
      requirements as to when the readjusted terms should be
      determined.  In short, we think Congress implicity delegated to
      the Secretary the task of determining the timing of the
      procedures by which he would readjust coal leases.

Id. at 20a-21a.

   The court found that the procedure employed in this case was one of
a number of ways in which the Secretary could carry out his statutory
mandate.  By giving Western-Utah notice of readjustment prior to the
twenty-year anniversary of the lease and a firm date by which proposed
terms would be provided, the procedure precluded Western-Utah from
claiming "that it was unfairly surprised by the lease readjustment, or
that it took action in reliance on the legitimate belief that its
lease would not be readjusted." Pet. App. 21a.  The procedure
therefore "provides the lessee with what it legitimately needs," and
"satisfied the timeliness requirements of the statute." Ibid.

                               ARGUMENT

   The decision of the court of appeals is correct and does not
conflict with any decision of this Court or any other court of
appeals.  Accordingly, further review is not warranted.

   1. Petitioner contends that the decision of the court of appeals is
in conflict with three Tenth Circuit decisions construing the same
provision of the MLA.  This contention is mistaken.  Two of the
decisions cited by petitioner were expressly relied upon by the
district court in rejecting petitioner's claim, and, although not
cited by the court of appeals in this case, both are in full accord
with the court of appeals' decision affirming the district court's
judgment.  The third case involved fundamentally different issues and
therefore creates no conflict with the D.C. Circuit's decision in this
case.

   a. In FMC Wyoming Corp. v. Hodel, 816 F.2d 496 (10th Cir. 1987),
cert. denied, 484 U.S. 1041 (1988), the plaintiff lessee, like
petitioner, received a notice of intent to readjust terms of the lease
prior to the twenty-year anniversary date of the lease.  816 F.2d at
498-499.  Somewhat later, though still prior to the anniversary date,
the Secretary provided the lessee with the proposed terms of the
readjustment.  Id. at 499.  Because the lessee objected to the terms
and pursued administrative appeals, the terms of readjustment were not
conclusively determined until at least a month after the anniversary
date.  Ibid.  Rejecting the lessee's argument that final action
readjusting the lease terms must be completed prior to the twenty-year
anniversary date, the Tenth Circuit held, in terms directly applicable
to this case, that "a notice of an intent to readjust terms and
conditions of a coal lease given a coal company on or shortly before
the 20-year anniversary date preserves the Department's right under
(MLA) and the lease provisions to readjust the terms within a
reasonable time thereafter." Id. at 500.

   In Coastal States Energy Co. v. Hodel, 816 F.2d 502, 505 (1987),
decided the same day as FMC Wyoming, the Tenth Circuit repeated its
holding that a notice of intent to readjust sent prior to the
anniversary date "preserves the Department's right to readjust the
terms within a reasonable time thereafter." Id. at 505.  The facts
with respect to one of the two leases involved in Coastal States are
indistinguishable from those in the instant case.  With respect to
that lease, the government had provided the lessee with a notice of
intent to readjust prior to the anniversary date, but had provided the
precise proposed terms of readjustment shortly after the anniversary
date, as in this case.  Id. at 504.  The Tenth Circuit reached the
identical result with respect to both leases;  the linchpin of the
decision was that, as in this case, the lessee had received a notice
of intent to readjust prior to the anniversary date and received the
proposed terms within a reasonable time thereafter.

   b. The third Tenth Circuit decision cited by petitioner, Rosebud
Coal Sales Co. v. Andrus, 667 F.2d 949 (1982), provides no support for
petitioner's argument, as the Tenth Circuit itself recognized in
distinguishing it in the FMC Wyoming and Coastal States decisions.  In
Rosebud, the lessee received no notice of any sort concerning an
intent to readjust until after passage of the FCLAA, see note 2,
supra, two and one-half years after the twenty-year anniversary date.
At that time, the Department notified the lessee that it intended to
readjust the terms of the lease and raise the royalty payments in
accordance with the recently enacted FCLAA.  667 F.2d at 953.  As the
court later explained in FMC Wyoming, the Tenth Circuit in Rosebud
simply held on the "narrow" issue before it that "an attempt two and
one-half years after the anniversary date to serve notice * * * of an
intent to readjust in not timely." 816 F.2d at 500.  Far from
conflicting with the later decisions in FMC Wyoming and Coastal
States, Rosebud "strongly suggests" the proposition that notice of
intent to readjust served before the anniversary date is timely.  FMC
Wyoming, 816 F.2d at 500.  Rosebud is thus in no way in conflict with
the decision of the court of appeals below.

   2. Petitioner contends (Pet. 13-22) that the lower court misapplied
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), in deferring to the Secretary's interpretation.  This
contention too is mistaken.

   a. Petitioner asserts that deference to the Secretary's
interpretation of the MLA was inappropriate because the "plain
meaning" of the phrase "at the end" is that the Secretary had "the
opportunity to mandate new terms and conditions which would take
effect with the initiation of the second period of the lease." Pet.
15.  Beyond repeating the terms of the statute and insisting that they
must be paraphrased to mean "before the end," see Pet. App. 20a,
petitioner advances no reason why its interpretation of the statutory
language is to be preferred over that embodied in the regulations or
the other interpretations suggested by the court of appeals.  See Pet.
App, 21a.  /5/ Therefore, the fact that the statutory phrase "at the
end" is "capable of bearing other interpretations," id. at 20a,
ineluctably leads to the court of appeals' conclusion that the
Secretary's interpretation is entitled to Chevron deference.  /6/

   b. The two cases cited by petitioner on this point, Hallstrom v.
Tillamook, 110 S. Ct. 304 (1989), and United States v. Locke, 471 U.S.
84 (1985), do not support petitioner's claim.

   In United States v. Locke, a statute required holders of unpatented
mining claims to file certain notices with the government "prior to
December 31" of every year.  471 U.S. at 89 (emphasis added).  The
Court held that certain holders of such claims who filed their notices
on December 31 had failed to comply with the statutory requirement.
Id. at 96.  In Hallstrom, a plaintiff brought a citizen's suit under a
federal environmental protection statute without notifying the
Environmental Protection Agency, despite a provision in the statute
involved that "(n)o action may be commenced * * * prior to 60 days
after the plaintiff has given notice of the violation" to the EPA.  42
U.S.C. 6972(b)(1)(A) (Supp. V 1987) (emphasis added).  See 110 S. Ct.
at 308.  The Court held that the suit had to be dismissed because the
plaintiff failed to comply with the notice provision.  110 S. Ct. at
312.

   Neither Locke nor Hallstrom is of use to petitioner here.  Both
cases involved the interpretation of statutory terms ("prior to")
different from those ("at the end of") at issue in this case.
Moreover, the Secretary gave petitioner notice of his intent to
readjust prior to the twenty-year anniversary date in this case.  By
contrast, both the claim holders in Locke and the plaintiff in
Hallstrom failed entirely to meet the statutory deadline.  Finally,
far from rejecting an agency's interpretation of the language in issue
-- as petitioners urge in this case -- the Locke Court relied in part
on the agency's regulations to reach its result, see 471 U.S. at 96,
and the Hallstrom Court's result was in full accord with the agency
interpretation.  110 S. Ct. at 312.

   c. Petitioner asserts (Pet. 20-21) for the first time in this
litigation that the Secretary's interpretations of the MLA's timing
requirements have been inconsistent and are therefore not entitled to
deference.  Petitioner does not rely on any changes in the Secretary's
regulations concerning coal leases over the years, but rather asserts
that the coal leasing regulations are inconsistent with regulations
addressing federal leases for other minerals, which provide that if
the readjusted terms are not transmitted prior to the expiration of
the twenty-year period, readjustment is waived.  See 43 C.F.R.
3511.4(a) (phosphate), 3531.4(a) (potassium), 3551.4(a) (gilsonite).

   Each of the regulations cited by petitioner is authorized by a
separate statutory provision governing leasing of the particular
mineral involved.  See 30 U.S.C. 207 (coal), 30 U.S.C. 212
(phosphate), 30 U.S.C. 283 (potassium or potash), and 30 U.S.C 241(a)
(gilsonite).  Although the term "at the end of" appears in each of the
statutes, the statutory provisions vary in a number of other respects.
 Petitioner's argument therefore simply underscores the fact that the
term "at the end of," embodied in several different statutes governing
several different leasing programs, is susceptible of differing
interpretations.  The Secretary may therefore adopt different
approaches to interpretation of that term to govern differing leasing
programs.

   d. Petitioner contends (Pet. 21-22) that deference is not due to
the Secretary's interpretation of the MLA's timing requirements
because such requirements are "jurisdictional." Petitioner's argument
is mistaken for two reasons.

   First, petitioner incorrectly characterizes the MLA provision at
issue in this case as "jurisdictional." It is not disputed that the
Secretary has authority -- and, in that sense, "jurisdiction" -- to
readjust the terms of mineral leases.  The MLA provision at issue in
this case simply embodies a precedural rule for determining when the
Secretary may exercise that undisputed authority.  As such, it is no
more "jurisdictional" than is any statutory provision outlining
substantive or procedural rules to govern a regulatory regime, and the
Court has never permittd the mere invocation of the word
"jurisdiction" to override the deference ordinarily due to an agency's
interpretations of a statute whose administration is entrusted to it.

   Second, even if a given statutory provision were correctly
characterized as "jurisdictional," that fact does not in any event
limit the deference due the agency's interpretation.  In Commodity
Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986), this Court
rejected the assertion that an agency's "expertise was not deserving
of deference because of the 'statutory interpretation-jurisdictional'
nature of the question at issue." Id. at 845.  The Court explained:

      An agency's expertise is superior to that of a court when a
      dispute centers on whether a particular regulation is
      'reasonably necessary to effectuate any of the provisions or to
      accomplish any of the purposes' of the Act the agency is charged
      with enforcing;  the agency's position, in such circumstances,
      is therefore due substantial deference.

Ibid.  See also Mississippi Power & Light Co. v. Mississippi, 487 U.S.
354, 381 (1988) (Scalia, J., concurring in the judgment);  Dole v.
United Steelworkers, 110 S. Ct. 929, 944 (White, J., dissenting).
Because the Secretary's interpretation of the MLA timing requirement
for coal leases is "reasonably necessary to effectuate" or "accomplish
any of the purposes of" the MLA, the court of appeals correctly
deferred to that interpretation.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /7/

   BARRY M. HARTMAN

      Acting Assistant Attorney General

   ROBERT L. KLARQUIST

   JEAN ANNE KINGREY

      Special Litigation Counsel

   JULY 1990

   /1/ The lease itself incorporated the provision for readjustments,
providing that the government reserves:

      (T)he right reasonably to readjust and fix royalties payable
      hereunder and other terms and conditions at the end of 20 years
      from the date hereof and thereafter at the end of each
      succeeding 20-year period during the continuance of this lease
      unless otherwise provided by law at the time of the expiration
      of any such period.

Pet. App. 4a.

   /2/ In 1976, Congress enacted the Federal Coal Leasing Amendments
Act (FCLAA), Pub. L. No. 94-377, 90 Stat. 1083, which revised the coal
leasing provisions of the MLA.  Section 6 of FCLAA, 30 U.S.C. 207,
replaced Section 7 of the MLA, 30 U.S.C. 207 (1958), and provides in
relevant part:

      (a) A coal lease shall be for a term of twenty years and for so
      long thereafter as coal is produced annually in commercial
      quantities from that lease.  Any lease which is not producing in
      commercial quantities at the end of ten years shall be
      terminated.  The Secretary shall be regulation prescribe annual
      rentals on leases.  A lease shall require payment of a royalty
      in such amount as the Secretary shall determine of not less than
      12 1/2 per centum of the value of coal as defined by regulation,
      except the Secretary may determine a lesser amount in the case
      of coal recovered by underground mining operations.  The lease
      shall include such other terms and conditions as the Secretary
      shall determine.  Such rentals and royalties and other terms and
      conditions of the lease will be subject to readjustment at the
      end of its primary term of twenty years and at the end of each
      ten-year period thereafter if the lease is extended.

Because petitioner extracted coal by means of "underground mining
operations," the mandatory 12 1/2% royalty rate was inapplicable to
petitioner's lease, and a lower rate was set.  Pet. App. 4a.

   /3/ Peabody and Colowyo have filed a separate petition for
certiorari which is currently pending.  See Colowyo Coal Co. v. Lujan,
No. 89-1958.

   /4/ In granting summary judgment, the district court rejected not
only the argument advanced by Western-Utah in this petition, but also
separate arguments advanced by the other plantiffs in the consolidated
cases concerning the statutory authority and constitutionality of the
readjustments at issue in those cases.

   /5/ Petitioner contends (Pet. 14) that the legislative history
supports its interpretation.  However, the legislative history cited
by petitioner (Pet. 16) merely recites the phrase "at the end" in
terms almost identical to those of the statute itself;  it sheds no
further light on the meaning of this phrase.

   /6/ The Tenth Circuit, holding that it "may not substitute its
judgment for that of the agency," Coastal States, 816 F.2d at 505 n.5,
has also deferred to the Secretary's interpretation of the statute.

   /7/ The Solicitor General is disqualified in this case.