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No. 08-63

 

In the Supreme Court of the United States

NATIONAL MINING ASSOCIATION, PETITIONER

v.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

DARYL JOSEFFER
Acting Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
KATHRYN E. KOVACS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., generally prohib its surface coal mining operations in certain specified areas but makes that prohibition "subject to valid exist ing rights." 30 U.S.C. 1272(e). The question presented is whether the definition of "valid existing rights" con tained in regulations issued by the Department of the Interior's Office of Surface Mining Reclamation and En forcement in 1999 is a permissible construction of the SMCRA under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).

 

In the Supreme Court of the United States

No. 08-63

NATIONAL MINING ASSOCIATION, PETITIONER

v.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a) is reported at 512 F.3d 702. The opinion of the district court (Pet. App. 17a-36a) is not published in the Federal Supplement but is available in 36 Envtl. L. Rep. (Envtl. L. Inst.) 20,090, and is available at 2006 WL 1194224.

JURISDICTION

The judgment of the court of appeals was entered on January 15, 2008. A petition for rehearing was denied on March 14, 2008 (Pet. App. 37a-38a). On June 4, 2008, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including July 12, 2008, and the petition was filed on July 14, 2008 (Monday). The jurisdiction of this Court is invoked un der 28 U.S.C. 1254(1).

STATEMENT

1. In 1977, Congress enacted the Surface Mining Control and Reclamation Act (SMCRA or Act), 30 U.S.C. 1201 et seq. In the Act's statement of purpose, Congress declared that its aim was to "establish a na tionwide program to protect society and the environ ment from the adverse effects of surface coal mining operations," 30 U.S.C. 1202(a), while "strik[ing] a bal ance between protection of the environment and agricul tural productivity and the Nation's need for coal as an essential source of energy," 30 U.S.C. 1202(f). See Citi zens Coal Council v. Norton, 330 F.3d 478, 480 (D.C. Cir. 2003) (upholding regulations defining "surface coal mining operations"), cert. denied, 540 U.S. 1180 (2004).

The SMCRA is administered by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement (OSM). See 30 U.S.C. 1211(c). States may assume jurisdiction over surface coal mining operations on non-Indian lands within their borders by developing a regulatory program that is no less stringent than the SMCRA and no less effective than federal regulations issued under it, see 30 U.S.C. 1253, 1272(a); 30 C.F.R. 730.5, 731.14, 732.15, but OSM retains oversight author ity even in those States, see National Mining Ass'n v. United States Dep't of the Interior, 251 F.3d 1007, 1012 (D.C. Cir. 2001).

2. The SMCRA identifies five types of areas where, subject to certain exceptions, "no surface coal mining operations * * * shall be permitted." 30 U.S.C. 1272(e); see 30 U.S.C. 1272(e)(1)-(5) (listing, inter alia, lands within the boundaries of the National Park Sys tem, federal lands within the boundaries of a national forest, lands "within one hundred feet of the outside right-of-way line of any public road," and lands "within three hundred feet" of homes, schools, churches, and community or institutional buildings). That general pro hibition does not apply, however, to "operations * * * which exist[ed] on August 3, 1977," 30 U.S.C. 1272(e), the date on which the SMCRA was enacted. It is also made "subject to valid existing rights." Ibid.

The issues presented in this case involve whether the Department of the Interior has permissibly interpreted the phrase "valid existing rights" in 30 U.S.C. 1272(e).

a. The first permanent regulations interpreting the SMCRA were published on March 13, 1979. See 44 Fed. Reg. 14,902 (1979 regulations). The 1979 regulations de fined "valid existing rights" as encompassing two types of situations. The first was where the property owner "[h]ad been validly issued, on or before August 3, 1977, all State and Federal permits necessary to conduct such operations on those lands." Id. at 15,342. That standard is known as the "all-permits" standard. The second situ ation covered by the 1979 regulations was where a prop erty owner "[could] demonstrate to the regulatory au thority that the coal [was] both needed for, and immedi ately adjacent to, an on-going surface coal mining opera tion for which all permits were obtained prior to August 3, 1977." Ibid. That standard is known as the "needed- for-and-adjacent-to" standard.

Several parties, including the National Coal Associa tion (NCA), one of petitioner's predecessors, and the National Wildlife Foundation (NWF) challenged the 1979 regulations. NCA challenged the "all permits stan dard," while NWF supported it. On February 26, 1980, the district court issued an opinion in which it agreed with the NCA that a party claiming the right to conduct surface coal mining operations under the "valid existing rights" provision of 30 U.S.C. 1272(e) should not be re quired to have obtained all permits before the SMCRA's August 3, 1977, enactment. See In re Permanent Sur face Mining Regulation Litig., 14 Env't Rep. Cas. (BNA) 1083, 1091 (D.D.C. 1980) (PSMRL). Instead, the district court concluded that "a good faith attempt to obtain all permits before the August 3, 1977 cut-off date should suffice," and it remanded the relevant sub-para graph of the 1979 regulations to the agency. Ibid. On May 16, 1980, the district court issued a further opinion in which it "ordered the Secretary [of the Interior] to affirmatively disapprove any provision in a State pro gram under consideration which incorporate[d] a sus pended or remanded Federal regulation." 45 Fed. Reg. 51,548 (1980).1

While that litigation was pending, "OSM recognized the need to propose changes to certain sections of" the 1979 regulations. 45 Fed. Reg. at 51,548. OSM issued orders suspending various sections of the 1979 regula tions in November 1979, December 1979, and January 1980. Ibid. On August 4, 1980, OSM issued an order (August 1980 suspension order) that suspended the por tion of the 1979 regulations that defined "valid existing rights" "insofar as it require[d] that all permits must have been obtained prior to August 3, 1977." Ibid. The August 1980 suspension order stated: "Pending further rulemaking, the Secretary will interpret this regulation as requiring a good faith effort to obtain all permits." Ibid. That standard is known as the "good faith/all per mits" standard. See 64 Fed. Reg. 70,770 (1999).

b. In 1982, OSM published proposed regulations that contained six possible definitions of "valid existing rights" in 30 U.S.C. 1272(e). See 47 Fed. Reg. 25,279- 25,282. When OSM finalized those regulations the fol lowing year, it rejected all six options and instead adopt ed a "takings" standard. See 48 Fed. Reg. 41,313-314 (1983) (1983 regulations). Under that standard, a prop erty owner would be deemed to have "valid existing rights" to conduct surface coal mining operations "if the application of any of the prohibitions contained in [30 U.S.C. 1272(e)] to the property interest that existed on [August 3, 1977] would effect a taking of the person's property which would entitle the person to just com pensation under the Fifth and Fourteenth Amendments to the United States Constitution." Id. at 41,349.2

The NWF and others challenged the 1983 regula tions' definition of "valid existing rights," contending that it was issued without sufficient notice and comment. The district court agreed, and remanded that provision to the agency for additional proceedings. See PSMRL, 22 Env't Rep. Cas. (BNA) 1557, 1564 (D.D.C. 1985), aff'd in part and rev'd in part sub nom., NWF v. Hodel, 839 F.2d 694 (D.C. Cir. 1988); see 64 Fed. Reg. at 70,770.

On November 20, 1986, OSM issued an order sus pending portions of the 1983 regulations in response, in part, to the district court's March 22, 1985, decision. See 51 Fed. Reg. 41,952 (1986) (November 1986 suspension order). In the November 1986 suspension order, OSM suspended "the definition of 'valid existing rights'" con tained in the 1983 regulations. Id. at 41,961. The effect of that suspension was to reinstate the "good faith/all permits" standard that had been in place before the is suance of the 1983 regulations. Id. at 41,954-41,955.

c. On December 27, 1988, OSM proposed to amend the regulations in order to permit an applicant to dem onstrate "valid existing rights" by satisfying one of three standards: (1) the good faith/all permits standard; (2) the needed-for-and-adjacent-to standard; or (3) a new "[o]wnership and [a]uthority" standard. 53 Fed. Reg. 52,374, 52,383 (December 1988 proposal). "Under the ownership and authority standard, a person could establish [valid existing rights] by demonstrating both a property right to the coal and the right to mine it by the method intended, as determined by State law." 64 Fed. Reg. at 70,771. On July 21, 1989, OSM withdrew the December 1988 proposal for further study. See 54 Fed. Reg. 30,557 (1989).

d. On July 18, 1991, OSM proposed a definition un der which an applicant could demonstrate "valid existing rights" by satisfying the good faith/all permits standard, the needed-for-and-adjacent-to standard, or the takings standard. See 56 Fed. Reg. 33,163-33,164 (1991 pro posed rule).

The 1991 proposed rule was never finalized. In Sec tion 2504(b) of the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 3105, Congress directed the Sec retary of the Interior to "continue in force and effect," for at least one additional year, the "valid existing rights" standard contained in the November 1986 sus pension notice, which, as noted previously, incorporated the good faith/all permits and needed-for-and-adjacent- to standards. In addition, the relevant appropriations acts for the next two years specifically prohibited the Department of the Interior from using any appropriated funds to publish a rule defining "valid existing rights" or to disapprove any existing state definition of that term. See Act of Nov. 11, 1993, Pub. L. No. 103-138, § 111, 107 Stat. 1399; Act of Sept. 30, 1994, Pub. L. No. 103-332, § 111, 108 Stat. 2519.

3. a. On January 31, 1997, OSM published a pro posed rule under which an applicant seeking to demon strate "valid existing rights" would be required to sat isfy either the good faith/all permits standard or the needed-for-and-adjacent-to standard. 62 Fed. Reg. 4844-4846, 4860.

b. On December 17, 1999, OSM published the final rule that is at issue in this case. See 64 Fed. Reg. at 70,766 (1999 regulations). The 1999 regulations define "valid existing rights" as "a set of circumstances under which a person may, subject to regulatory authority ap proval, conduct surface coal mining operations on lands where [30 U.S.C. 1272(e)] would otherwise prohibit such operations." 30 C.F.R. 761.5. The 1999 regulations pro vide that, in order to establish "valid existing rights," a claimant must first demonstrate that, at the time the land came under the protection of Section 1272(e), some legally binding document vested the claimant "with the right to conduct the type of surface coal mining opera tions intended." 30 C.F.R. 761.5(a). If that initial state- law-based standard is satisfied, the 1999 regulations provide that the claimant must also satisfy either the good faith/all permits standard or the needed-for-and- adjacent-to standard. See 30 C.F.R. 761.5(b).3

The preamble to the 1999 regulations spans 65 pages in the Federal Register. 64 Fed. Reg. at 70,766-70,830. The preamble contains an exhaustive review of the SMCRA and its legislative history, OSM's previous ef forts to define "valid existing rights," and the case law arising from those attempts. See id. at 70,767-70,771. It also explains the provisions of the new regulations, discusses how they coincide with or differ from prior regulations, responds to comments, and explains why OSM chose the options it did. See id. at 70,771-70,783, 70,787-70,790. The preamble specifically addresses why OSM rejected the taking and ownership-and-authority standards. See id. at 70,783-70,786. It also contains an extensive discussion of how the definition of "valid exist ing rights" adopted in the 1999 regulations "[c]ompares with" the use of the words "valid existing rights" "[u]n der [o]ther [f]ederal [s]tatutes." Id. at 70,793-70,794; see Pet. App. 23a-29a (district court's description of the preamble).

With respect to the impact of the alternatives it con sidered, OSM concluded that, over the 20-year period from 1995 to 2015, the "good faith/all permits" standard would result in mining of only 2855 fewer acres than a "takings" standard and 3000 fewer acres than the "own ership and authority" standard. See Pet. App. 25a (cit ing 64 Fed. Reg. at 70,776). Against that background, OSM found only "negligible differences among the alter natives in terms of their economic impact." 64 Fed. Reg. at 70,776.

4. a. Petitioner filed a complaint and petition for judicial review under 30 U.S.C. 1276(a)(1), which autho rizes review of "[a]ny action of the Secretary [of the In terior] to approve or disapprove a State program or to prepare or promulgate a Federal program pursuant to [the SMCRA]." That section also provides that "[a]ny 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." Ibid.

b. The district court granted summary judgment in favor of respondents. Pet. App. 17a-36a. The court quoted the D.C. Circuit's statement in NWF v. Hodel, 839 F.2d 694, 749 (1988), that "[n]either the statutory language nor the legislative history [of the SMCRA] elaborate[s] on the meaning of the phrase 'valid exist ing rights.'" Pet. App. 31a. The district court concluded that the 1999 regulations satisfied the only evident guideposts of congressional intent applicable at Chevron step one because they "include[] a good-faith exception, encompass[] recognition for state law property rights at the property right demonstration prong * * * , and reveal[] concerns over minimizing takings." Id. at 32a.

The district court concluded at Chevron step two that OSM had "considered the relevant factors" and "ar ticulate[d] a rational explanation for its actions." Pet. App. 32a, 34a. The court determined that "[t]he 'good faith/all permits' standard adopted by OSM reasonably strikes a balance between protecting the environment and ensuring an adequate supply of coal." Id. at 33a; see ibid. (noting that OSM had determined "that its final rule would have no 'significant economic impact on the mining industry and the cost of producing or delivering coal'") (quoting 64 Fed. Reg. at 70,776). The district court further noted that "OSM reports, and [petitioner] does not dispute, that the 'good faith/all permits' stan dard is * * * consistent with current state regulatory standards," and it pointed out that the same standard had "been implemented in 1980 and 1986 at the direction of OSM and in the early 1990s at the direction of Con gress." Id. at 33a-34a.

The district court rejected petitioner's contention that the 1999 regulations violated either the Just Com pensation or Due Process Clause of the Fifth Amend ment to the United States Constitution. Pet. App. 34a- 35a. The court noted that this Court's decision in Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981), "held that the 'mere enactment' of [the] SMCRA [did] not constitute a taking, nor [did] it, 'on its face, deprive owners of land within its reach of economi cally viable use of their land since [the SMCRA] does not proscribe nonmining uses of such land." Pet. App. 34a (quoting Hodel, 452 U.S. at 296 n.37). The district court held that petitioner "ha[d] not demonstrated that the new regulation results in an unconstitutional tak ing," both for the reasons identified in Hodel and be cause "it is clear that if valid existing rights are denied, compensation is available under the Tucker Act." Ibid.

5. The court of appeals affirmed in a unanimous published opinion. Pet. App. 1a-16a. The court first determined "that [valid existing rights] is an ambiguous phrase." Id. at 7a-8a. It noted that, in its 1986 decision in NWF, it "ha[d] * * * determined that the phrase is subject to multiple and divergent interpretations" and "that the legislative history of the SMCRA does not illu minate the meaning of [valid existing rights]." Id. at 8a & n.2 (citing NWF, 839 F.2d at 748-751). The court of appeals stated that "[t]he major source of [valid existing rights'] ambiguity is the word 'rights.'" Id. at 8a. It explained that that word has "multiple and often vague meanings," some of which are synonymous with "prop erty rights" and others of which are not. Id. at 8a-10a. The court of appeals also concluded that the term "valid" was ambiguous as used in this context. Id. at 9a. It observed that if "[valid existing rights] operates as a 'term of art,' as [petitioner] suggests, it is as a tool by which Congress delegates policymaking authority through ambiguity." Id. at 10a.

The court of appeals next held that the 1999 regula tions' definition of "valid existing rights" was "a reason able interpretation of the statute." Pet. App. 12a. The court viewed the statute as a whole as making clear that "protecting against the harmful effects of surface min ing" was "the primary aim of the [SMCRA]," and it stated that it was "not surprising that the Secretary has promulgated an interpretive rule that cuts against the interests of some miners." Id. at 12a-13a. The court of appeals also concluded that petitioner's "suggestion that the SMCRA effected robust protection of miners' prop erty rights is belied by the way Congress used the word 'property' in that statute." Id. at 13a. It noted that "only one [of the 29 instances in which that term appears in the SMCRA] refers to protecting the property rights of subsurface owners of the mineral estate," and it de termined that "several mentions of 'property' [in the Act] run counter to miners' property rights, in that they authorize government entry onto mined property to as sess and remedy environmental degradation caused by strip mining." Ibid. The court also stated that peti tioner's accusation of "flip-flopping" by OSM "ignore[d] the agency's obligation to 'consider varying interpreta tions and the wisdom of its policy on a continuing basis.'" Id. at 13a n.5 (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 863-864 (1984) (Chevron)).

The court of appeals agreed with petitioner that the "canon of constitutional avoidance trumps Chevron def erence." Pet. App. 14a. The court emphasized, however, that "we do not abandon Chevron deference at the mere mention of a possible constitutional problem: the argu ment must be serious," and the court determined that the constitutional arguments in this case did not satisfy that standard. Ibid. Petitioner had argued "that the 1999 Rule * * * work[s] a taking of subsurface coal in terests." Id. at 15a. The court of appeals responded that "[a] taking * * * is only unconstitutional if the government fails to pay just compensation, and the Tucker Act provides for such a remedy." Ibid.

The court of appeals emphasized that it did not "say that the canon of constitutional avoidance can be ignored with respect to every argument sounding in the Takings Clause." Pet. App. 15a. The court noted that this Court has recognized that, even where just compensation would be available for individual takings, the doctrine of constitutional avoidance applies "if a statute creates 'an identifiable class of cases in which application of [the] statute will necessarily constitute a taking.'" Id. at 15a-16a (quoting United States v. Riverside Bayview Homes, 474 U.S. 121, 128 n.5 (1985)). The court of ap peals also observed that it had previously "refused Chev ron deference to an agency interpretation that created an 'identifiable class' of takings victims." Id. at 16a (cit ing Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441, 1445 (D.C. Cir. 1994)). But the court of appeals concluded that peti tioner "ha[d] shown no 'identifiable class' of miners whose taking claims would expose the Treasury to such liability." Ibid. The court noted that petitioner had de clined to contend at oral argument "that the government would be on the hook for a 'massive and unforseen' sum" if the 1999 regulations were upheld, and it stated that "[t]he record is devoid of evidence it is so." Ibid. The court thus viewed petitioner as having made an "implicit concession that the 1999 Rule will have relatively insig nificant takings implications that can be readily ad dressed in the Court of Claims," and it noted that it had previously concluded that "[t]he avoidance canon is not applicable when the statute or regulation would effect a taking, if at all, only in certain circumstances." Ibid. (quoting National Mining Ass'n v. Babbitt, 172 F.3d 906, 917 (D.C. Cir. 1999)).

6. Petitioner filed a petition for rehearing en banc. That petition was denied after no judge requested a vote on it. Pet. App. 38a.

ARGUMENT

The court of appeals' decision is correct and does not conflict with any decision of this Court or any other court of appeals. The court of appeals merely upheld a regulatory standard that the Department of the Interior has employed since 1986, and its decision cannot be ex pected to have broader implications. Further review is not warranted.

1. Petitioner first contends (Pet. 15-25) that the Dis trict of Columbia Circuit erred in concluding that the words "valid existing rights" in Section 1272(e) are am biguous under Chevron step one. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). That claim does not merit further review.

a. The premise of petitioner's argument is that the court of appeals reached the conclusion that it did solely because the word "rights" "has multiple entries in the dictionary." Pet. 15; see Pet. i. That premise is erroneous.

Like the district court before it, see Pet. App. 31a, the court of appeals explained that it had already con cluded-20 years ago-that the entire phrase "valid ex isting rights" in 30 U.S.C. 1272(e) "is subject to multiple and divergent interpretations." Id. at 8a (citing NWF v. Hodel, 839 F.2d 694, 748-751 (D.C. Cir. 1988)); id. at 8a n.2 (same). In NWF, the D.C. Circuit rejected a chal lenge to the "continually-created [valid existing rights]" portion of the 1983 regulations. See 839 F.2d at 748-751; note 2, supra. The panel in that case observed that "[n]either the statutory language nor the legislative his tory elaborate[s] on the meaning of the phrase 'valid existing rights.'" 839 F.2d at 749. The NWF panel con cluded that "[t]he statutory language appear[ed] to be susceptible to either" the interpretation that it applies exclusively to rights that were "existing as of the date of [the SMCRA's] enactment" or that it applies as well to situations where "a permit ha[d] been validly issued" before the land came under the protection of 30 U.S.C. 1272(e). 839 F.2d at 750. The panel also noted that the SMCRA's legislative history "d[id] not answer the spe cific question before [it]," though it observed that a com mittee report indicated that Congress did not intend for "operating mines" to "be shut down." Ibid. (citing H.R. Rep. No. 218, 95th Cong, 1st Sess. 94 (1977)).

In this case, the court of appeals could have justified its conclusion that the phrase "valid existing rights" in Section 1272(e) was ambiguous based solely on that es tablished conclusion in NWF. But the panel went fur ther. It explained that the "major source"-not the only source-of the ambiguity in "valid existing rights" was Congress's use of the word "rights." Pet. App. 8a (em phasis added). Petitioner is correct (Pet. 13-14) that the panel relied in part on dictionary definitions of the word "rights" in reaching that conclusion. Pet. App. 8a-9a. But consulting dictionaries is one of the standard tech niques of statutory interpretation,4 and petitioner itself cited dictionary definitions of "rights" in its brief to the court of appeals. Id. at 8a (citing Pet. C.A. Br. 34). In addition, the court of appeals also examined the mean ing of "valid," and concluded that that term too failed to resolve the ambiguity it had already identified in NWF. Id. at 9a.5 Nor did the court of appeals ignore SMCRA's structure. It simply did not find petitioner's few struc tural arguments persuasive enough to warrant discus sion in the context of Chevron step one. See id. at 12a- 13a (addressing statutory context when assessing rea sonableness of OSM's interpretation under Chevron step two).

Petitioner's claim that the D.C. Circuit applied a "novel approach to Chevron" in this case (Pet. 25) under which "a single word" can render an entire statutory phrase ambiguous (Pet. 15) is further belied by its sub sequent decisions. The D.C. Circuit has continued- in decisions issued after its decision in this case-to rely on the very precedents petitioner accuses it of having abandoned here. Compare Pet. 19 (quoting this Court's statement in Brown v. Gardner, 513 U.S. 115, 118 (1994), that "[a]mbiguity is a creature not of definitional possibilities but of statutory context"), with HolRail, LLC v. STB, 515 F.3d 1313, 1317 (D.C. Cir. 2008) ("Al though the term 'cross' may have multiple meanings in some circumstances, '[a]mbiguity is a creature not of definitional possibilities but of statutory context'" (quot ing Brown, 513 U.S. at 118)).

b. Petitioner also fails to demonstrate that the dis trict court and the court of appeals erred in concluding that the phrase "valid existing rights" in Section 1272(e) is ambiguous with respect to the specific question pre sented here. That phrase is undefined in the statute, and its meaning is not specifically addressed in the SMCRA's legislative history. See NWF, 839 F.2d at 749.

Petitioner and its amici err in asserting that the 1977 Senate Report indicates that the "fundamental purpose" of the "valid existing rights" language was "to clarify that 'all valid existing property rights must be pre served.'" Pet. 9 (quoting S. Rep. No. 128, 95th Cong., 1st Sess. 56 (1977) (Senate Report)); accord National Council of Coal Lessors (NCCL) Amicus Br. 4. The sec tion of the Senate Report in which the quoted language appears does not refer to the "valid existing rights" lan guage in Section 1272(e). Instead, it is contained in a section entitled "Protection of Surface Owner Rights." Senate Report 56. That section declares Congress's in tent that "disputes about property rights which might arise" in situations where "the mineral and surface es tate [have been] separated" should continue to be gov erned by "State laws" and that Congress "has no inten tion whatsoever * * * to change such rights." Ibid. (emphasis added). When viewed in context, the lan guage upon which petitioner and its amici rely clearly does not address the wholly separate question of under what circumstances the SMCRA itself bars surface coal mining operations in situations where such mining would previously have been allowed under state law.6

Although petitioner is correct that Congress has used the phrase "valid existing rights" in numerous fed eral statutes (see Pet. 6-8 & nn.1-16), petitioner errs in contending that that phrase has any "settled meaning" (Pet. 20) that applies regardless of the particular statu tory context in which it is used or the expert determina tions of an agency charged with administering it. So far as we are aware, Congress has never defined "valid ex isting rights" in any of the statutes in which it has used that phrase. See 64 Fed. Reg. at 70,794. In addition, pe titioner cites no judicial decision (and we are aware of none) that holds that "valid existing rights" is a term of art that always includes the sort of property interests -coupled with an ability to mine (or engage in other activity) as a matter of state law-that petitioner con tends the phrase "valid existing rights" as used in 30 U.S.C. 1272(e) was intended to protect.7 See General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595 n.8 (2004) (cautioning against "[t]he tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them") (citation omitted); see also Environmental De fense v. Duke Energy Corp., 127 S. Ct. 1423, 1432-1434 (2007) (holding that the Environmental Protection Agency had not exceeded the scope of its lawful author ity in interpreting the same term in a single statute in different ways)

Petitioner's invocation of statutory structure (Pet. 23-24) does not warrant a different result. First, peti tioner's argument is premised on a misreading of the 1999 regulations. The 1999 regulations do not "require miners to obtain [all] permits to qualify for [valid exist ing rights] in the first place." Pet. 24 (first emphasis added). To the contrary, OSM made clear, as it has since 1986, that a property owner need only have made a good-faith effort to obtain the necessary permits at the time the property became covered by Section 1272(e), and that that standard does not necessarily require the claimant even to have submitted all relevant permit ap plications. See 64 Fed. Reg. at 70,777 ("We do not inter pret the good faith/all permits standard as requiring submission of applications for all necessary permits" before the land comes under the protection of Section 1272(e)). Petitioner's argument also ignores the fact that the 1999 regulations provide two other methods by which a claimant may establish "valid existing rights" -satisfaction of the needed-for-and-adjacent-to stan dard or satisfaction of the alternate for roads. See id. at 70,787, 70,790; note 3, supra. Accordingly, the fact that Congress "condition[ed other] exemptions * * * on the attainment of regulatory permits" (Pet. 24) (emphasis added), does not demonstrate that Congress intended to preclude OSM from identifying a good-faith effort to obtain such permits as one method by which a claimant may establish "valid existing rights" under 30 U.S.C. 1272(e). See 64 Fed. Reg. at 70,778 (stating "that the statute's use of different terminology for each of these exceptions means that Congress probably intended a somewhat different meaning for the [valid existing rights] exception under [30 U.S.C. 1272(e)] than for the exceptions provided under the other statutory provi sions cited by the commenters").

Second, petitioner's argument is inconsistent with other structural features of the SMCRA. The overall purpose of 30 U.S.C. 1272(e) is to protect certain areas from the impacts of surface coal mining operations. See Senate Report 55 (stating that Congress included Sec tion 1272(e) because it "made a judgment that certain lands simply should not be subject to new surface coal mining operations"). But if the phrase "valid existing rights" applies whenever a person had a property inter est in coal in the ground and state law would not have prohibited the coal from being mined in the absence of Section 1272(e), as petitioner appears to suggest, then Section 1272(e) would have virtually no effect. See 64 Fed. Reg. at 70,772, 70,778, 70,784, 70,785, 70,826. In addition, petitioner's proposed interpretation of "valid existing rights" would mean that Section 1272(e) "would offer no significant protection * * * beyond that inde pendently afforded by" 30 U.S.C. 1257(b)(9), which al ready requires that permit applicants have a property right in the coal to be mined. 64 Fed. Reg. at 70,785; accord id. at 70,826 (stating that the interpretation pro posed by petitioner "would result in a finding of [valid existing rights] whenever a person met the permit appli cation requirements for property rights," and thus ren der Section 1272(e)'s independent protections "meaning less").

2. Petitioner also contends (Pet. 26-33) that the D.C. Circuit erred in applying Chevron in this case because "OSM's statutory construction * * * will trigger tak ings claims." Pet. i. That contention does not merit fur ther review.

a. This Court has made clear that "the possibility that the application of a regulatory program may in some instances result in the taking of individual pieces of property" provides "no justification for the use of nar rowing constructions to curtail the program if compen sation will in any event be available in those cases where a taking has occurred." United States v. Riverside Bay view Homes, Inc., 474 U.S. 121, 128 (1985) (Riverside Bayview); see Hodel v. Virginia Surface Mining & Rec lamation Ass'n, 452 U.S. 264, 297 n.40 (1981) (noting that "an alleged taking is not unconstitutional unless just compensation is unavailable."). The Court has ex plained that, "[u]nder such circumstances, adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty, [but merely] frustrates per missible applications of a statute or regulation." River side Bayview, 474 U.S. at 128 (citing Ashwander v. TVA, 297 U.S. 288, 341-356 (1936) (Brandeis, J., concurring)); accord Clark v. Martinez, 543 U.S. 371, 382 (2005) (stat ing that the constitutional avoidance canon is "a means of giving effect to congressional intent, not of subverting it").

The Court stated in Riverside Bayview that a nar rowing construction of a statute may be appropriate where there is "an identifiable class of cases" or an "identifiable set of instances" in which the mere "appli cation of a statute [or regulation] will necessarily consti tute a taking." 474 U.S. at 128 n.5 (emphasis added).8 In Riverside Bayview, the Court cited as an example the statute at issue in United States v. Security Industrial Bank, 459 U.S. 70 (1982), where there was a substantial argument that the retroactive application of a provision of the Bankruptcy Code "would in every case constitute a taking," and "the solution was to avoid that difficulty by construing the statute to apply only prospectively." Riverside Bayview, 474 U.S. at 128 n.5 (emphasis added). No such situation is present here. Moreover, because Security Industrial Bank involved purchase- money security interests obtained in transactions be tween private parties-a setting in which it is exceed ingly unlikely that Congress would have intended for the United States to pay compensation if a taking was found -the Court in that case appears to "have assumed the lack of compensatory remedy" under the Tucker Act. Eastern Enters. v. Apfel, 524 U.S. 498, 521 (1998) (plu rality opinion).

The court of appeals correctly held that this case falls into the general rule of Riverside Bayview rather than its exception. In the first place, here, unlike in the Security Industrial Bank example cited in Riverside Bayview, the court of appeals properly concluded that "the Tucker Act [would] provide[] * * * a remedy" in situations where application of the "valid existing rights" standard established in the 1999 regulations would result in a Fifth Amendment taking. Pet. App. 15a.9 Nor has petitioner in any event demonstrated that application of the 1999 regulations will "necessarily con stitute a taking" in any "identifiable class of cases." Riverside Bayview, 474 U.S. at 128 n.5 (emphasis added). As explained earlier, OSM employed the good faith/all permits standard between August 4, 1980, and September 14, 1983, and has been employing it continu ously since November 20, 1986. See pp. 4-8, supra. OSM found that the United States and the States that employ the same standard have never been required to pay just compensation for a taking of property resulting from application of the good faith/all permits standard. See 64 Fed. Reg. at 70,823. The court of appeals also determined that petitioner had implicitly conceded at oral argument that the definition of "valid existing rights" contained in the 1999 regulations "will have rela tively insignificant takings implications." Pet. App. 16a; see pp. 8-9, supra.

Petitioner repeatedly quotes (Pet. 4, 12, 31) a state ment from the preamble to the 1999 regulations that the definition of "valid existing rights" "has significant takings implications." 64 Fed. Reg. at 70,781. Petition er fails to mention, however, that the preamble makes clear that it is using the phrase "significant takings im plications as that term is defined by Executive Order 12630," ibid. (emphasis added), for purposes of under taking a "takings implication assessment," see ibid.; see Exec. Order 12,630, 3 C.F.R. 554 (1989). OSM per formed an assessment under that definition in the pre amble to the 1999 regulations, see 64 Fed. Reg. at 70,822-70,827, applying the Attorney General's Guide lines for the Evaluation of Risk and Avoidance of Un anticipated Takings, id. at 70,827. Petitioner also fails to note that the preamble states-two sentences after the "significant takings implications" language quoted by petitioner-that OSM "anticipate[s] that" the defini tion of valid existing rights in the 1999 regulations "will result in very few compensable takings." Id. at 70,781 (emphasis added); see Riverside Bayview, 474 U.S. at 128 n.5 (framing inquiry as whether application of a stat utory or regulatory standard will actually "constitute a taking" in "an identifiable class of cases").

Takings claims based on adverse "valid existing rights" determinations under the standard set forth in the 1999 regulations might fail for a wide variety of reasons. Such a claim failed in Stearns Co., v. United States, 396 F.3d 1354 (Fed. Cir.), cert. denied, 546 U.S. 875 (2005), for example, because the plaintiff had not sought a compatibility finding under 30 U.S.C. 1272(e)(2), which could have allowed it to mine even ab sent a determination of "valid existing rights." Other exemptions in Section 1272(e) might similarly allow ac cess to coal even absent a determination of "valid exist ing rights." See 64 Fed. Reg. at 70,824. A takings claim based on an adverse "valid existing rights" determina tion could also fail if the plaintiff lacked a compensable property interest in the coal or was able to make alter nate uses of the property, see id. at 70,823-70,825, or if the restriction on mining did not have the sort of eco nomic impact that would result in a taking, see Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987). Particularly given the dearth of decisions re quiring the government to pay compensation based on adverse "valid existing rights" determinations in all the years that standard has been in effect, the court of ap peals correctly declined to frustrate permissible applica tions of the 1999 regulations based on the speculative possibility that takings might arise in the future.

Nor is petitioner correct that the D.C. Circuit has rendered the exception noted in Riverside Bayfield "a dead letter." Pet. 31. As the court of appeals noted in its decision (see Pet. App. 16a), the D.C. Circuit applied that exception in Bell Atlantic Telephone Cos. v. FCC, 24 F.3d 1441, 1445 (1994), and its decision in this case announced no plans to change course in the future. In stead, the court of appeals simply determined that this case was governed by the general rule that "the possibil ity that the application of a regulatory program may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions." Riverside Bayview, 474 U.S. at 128. That case-specific determination was entirely correct and does not merit further review.

b. Although petitioner suggests that the lower courts "[a]re [c]onfused [a]bout" (Pet. 27) the proper application of the exception to the general rule stated in Riverside Bayview, it pointedly does not assert that the court of appeals' decision in this case conflicts with any of the decisions cited on pages 27 to 30 of the petition for a writ of certiorari. To the contrary, petitioner acknowl edges (Pet. 27-29) that the Fifth, Eighth, and Federal Circuit decisions that it cites all rejected arguments that the prospect of takings claims required the courts to disregard standard Chevron principles and apply a nar rowing construction.

Petitioner is therefore left to suggest (Pet. 29-30) that the D.C. Circuit's decision in this case may be in tension with that court's own previous decisions. But this Court has made clear that it is the province of each court of appeals to ensure consistency with, and resolve conflicts among, its own decisions. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). In addition, the unanimous panel opinion in this case discussed the decision that petitioner describes (Pet. 30) as having given "fullest exposition of the Riverside Bayview Homes rule." See Pet. App. 16a (discussing Bell Atl. Tel. Cos., supra). It is also telling that, not withstanding petitioner's contention that the panel's decision in this case constitutes "a sharp-but unex plained-break with its own precedent" (Pet. 31), no member of the D.C. Circuit voted to grant petitioner's petition for rehearing en banc.

3. Petitioner and its amici also fail to demonstrate that the D.C. Circuit's decision in this case will have "grave" or "far-reaching implications" (Pet. 34) either in the particular context of the SMCRA or more generally. As for the former: The Department of the Interior has applied the good faith/all permits standard for 25 of the 31 years since the SMCRA was enacted and has done so continuously since 1986. See pp. 4-8, supra. In addition, the preamble to the 1999 regulations explains that "[t]wenty of the 24 States with approved regulatory pro grams * * * already rely upon a good faith/all permits or all permits standard for" determining the existence of "valid existing rights." 64 Fed. Reg. at 70,767. Ac cordingly, to the extent that the words "valid existing rights" in Section 1272(e) have any "settled meaning" upon which "property owners [could] have relied," Pet. 20, the good faith/all permits standard would be that meaning.

Nor have petitioner or its amici demonstrated that the definition of "valid existing rights" in the 1999 regu lations will have significant consequences with respect to other statutes. This Court has rejected the proposi tion that a single agency must always interpret the same term even within a single statute in precisely the same manner. See Environmental Defense, 127 S. Ct. at 1432-1434. It follows a fortiori that there is no require ment that the words "valid existing rights" must be in terpreted in precisely the same way in "well over 100 federal statutes and proclamations" (Pet. 6) that were enacted and made over the course of a century, particu larly in light of the fact that Congress does not appear to have defined that phrase in any of them. See 64 Fed. Reg. at 70,794 (stating that OSM "found no definitions of [valid existing rights] in other Federal statutes").

There is no indication that the Department of the Interior intends to apply the definition of "valid existing rights" that the 1999 regulations adopt with respect to the SMCRA to other statutes it administers.10 To the contrary, the preamble to the 1999 regulations concludes that the interpretations of "valid existing rights" under other federal statutes did not "provide[] useful guid ance" in this context because "[v]alid existing rights un der [30 U.S.C. 1272(e)] is not analogous to [voluntary existing rights] under other Federal statutes." 64 Fed. Reg. at 70,794.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DARYL JOSEFFER*
Acting Solicitor General
RONALD J. TENPAS
Assistant Attorney General
KATHRYN E. KOVACS
Attorney

 

 

OCTOBER 2008

1 NCA and others appealed the district court's decisions, but the court of appeals never reached the merits because OSM was reconsid ering the 1979 rules. PSMRL, No. 80-1810 (D.C. Cir. Feb. 1, 1983).

2 The 1983 regulations also provided that the "valid existing rights" exception to the general prohibition contained in 30 U.S.C. 1272(e) applied not only to lands that were covered by that provision as of the SMCRA's August 3, 1977, enactment, but also to lands that become cov ered by that section at a later date, such as "when a park is created or expanded or a protected structure is built." 64 Fed. Reg. at 70,770; see ibid. (describing this provision as "continually created VER"); 48 Fed. Reg. at 41,349. The D.C. Circuit upheld the validity of the "continually- created VER" concept in NWF v. Hodel, 839 F.2d 694, 748-751 (1988).

3 The 1999 regulations set out a different mechanism for establishing "valid existing rights" with respect to use or construction of roads. In that context, a claimant may either: (1) satisfy the test described above; or (2) establish that a road, right-of-way, or permit to construct a road already existed at the time the property became covered by 30 U.S.C. 1272(e), and that the claimant had a legal right to use that road or right- of-way for surface coal mining operations. See 30 C.F.R. 761.5(c).

4 See, e.g., Cuellar v. United States, 128 S. Ct. 1994, 2000 (2008); Uni ted States v. Williams, 128 S. Ct. 1830, 1839 (2008); Begay v. United States, 128 S. Ct. 1581, 1586 (2008); Knight v. Commissioner, 128 S. Ct. 782, 789 (2008); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2510 (2007).

5 The court of appeals also found it "illuminating" that extensive aca demic commentary about the meaning of "valid existing rights" in 30 U.S.C. 1272(e) had "reached no consensus" and been "unable to distill a single, clear meaning" of that phrase. Pet. App. 10a n.3. The court observed that a subject-matter expert in whose views petitioner had "place[d] great faith"-and who both petitioner and amicus American Petroleum Institute (API) continue to cite before this Court (see Pet. 16; API Amicus Br. 9, 15, 23)-had acknowledged that Congress had not "list[ed] what interests it mean[t] to include within the 'valid ex isting rights' phrase." Pet. App. 10a n.3 (quoting Jan G. Laitos & Rich ard A. Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L. Rev. 1, 19 (1987)). Cf. Jan G. Laitos, The Nature and Consequence of "Valid Existing Rights" Sta tus in Public Land Law, 5 J. Min. L. & Pol'y 399, 399-400 (1989-1990) (observing that use of the term "valid existing rights" exemplifies Congress's "tendency to rely on unclear wording to express a federal law-maker's intent," and stating that "[b]ecause the phrase is never defined, one is never certain what kinds of interests are intended to fall within its scope").

6 Amicus NCCL contends (at 13-15) that the approach to "valid existing rights" in the 1999 regulations displaces state law, and implies that, in so doing, the rule contradicts congressional intent. That argu ment is incorrect as well. The 1999 regulations' definition of "valid exis ting rights" expressly defers to state law on questions relating to the first part of the analysis, that is, whether "a legally binding conveyance, lease, deed, contract, or other document vests that person, or a prede cessor in interest, with the right to conduct the type of surface coal min ing operations intended." 30 C.F.R. 761.5(a).

7 The only lower-court decisions that petitioner cites regarding the meaning of "valid existing rights" are three Ninth Circuit decisions, one D.C. Circuit decision, a district court decision, and a decision by the Supreme Court of Alabama; those decisions are cited in a footnote contained in petitioner's Statement of the Case. See Pet. 8 n.16. Peti tioner does not assert that the D.C. Circuit's decision in this case con flicts with any of those decisions, and none of them interpreted the words "valid existing rights" in the SMCRA.

Amicus NCCL errs in suggesting (at 7) that this Court's decision in Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 316-318 (1930), supports the view that "valid existing rights" has "a well-established purpose and meaning." The phrase "valid existing rights" does not ap pear in Wilbur at all, and it was conceded in that case that the particu lar claim at issue "was valid and existent when the" relevant statute had been enacted. Id. at 316.

8 But see Pet. i (framing inquiry as whether the standard set forth in the 1999 regulations "will trigger takings claims") (emphasis added).

9 Amicus NCCL asserts (at 16) that there are certain circumstances in which such a claim would have to be brought in state court rather than in the Court of Claims under the Tucker Act, 28 U.S.C. 1491(a). Regardless of whether that is so, the important point is that neither petitioner nor its amici deny that some court would always be available to hear such a circumstance-specific claim.

10 Amicus API expresses concern (at 8-10, 13-20) that the 1999 regu lations could establish a precedent with respect to the oil and gas indus try. API did not comment on the 1999 regulations while OSM was con sidering the matter, nor did it raise its concerns before the district court or the court of appeals. In addition, API's assertion (at 23) that a 1998 opinion by the Solicitor of the Interior regarding the meaning of "valid existing rights" in the Wilderness Act, 16 U.S.C. 1131 et seq., "diverges 180 degrees" from the approach taken in the regulation cur rently before this Court was not presented either to the agency or the lower courts. And, at any rate, the fact that Interior interpreted a simi lar phrase in a different statute in a different manner simply under scores, as Interior observed in the preamble to the 1999 regulations, that SMCRA "is not analogous" to other statutes. 64 Fed. Reg. at 70,794.

 

 

 

 

 

 

* The Solicitor General is recused from this case.