Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2003 Decided April 15, 2003
No. 02-5041
NATIONAL MINING ASSOCIATION,
APPELLANT
v.
JOHN M. FOWLER, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00288)
Catherine E. Stetson argued the cause for appellant. With
her on the briefs were George W. Miller and Harold P.
Quinn Jr.
Mark R. Haag, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Roscoe C. Howard Jr., U.S. Attorney, Javier Marques, Asso-
ciate General Counsel, Advisory Council on Historic Preser-
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
vation, R. Craig Lawrence and Daria J. Zane, Assistant U.S.
Attorneys.
Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: The Advisory Council on Historic
Preservation, an independent federal agency, is authorized
by its organic statute to promulgate regulations ensuring
that federally funded or federally licensed undertakings in-
corporate historic preservation values at the planning stage.
Responding to Congress’s expansion of the definition of ‘‘un-
dertaking,’’ the Council extended its regulation to projects li-
censed or permitted by state and local agencies ‘‘pursuant to
a delegation or approval by a Federal agency.’’ 36 C.F.R.
§ 800.16(y). Because this circuit has held that Congress’s
expanded definition of ‘‘undertaking’’ does not alter the statu-
tory requirement that the Council regulate only ‘‘federally
funded or federally licensed undertakings,’’ Sheridan Kalora-
ma Historical Ass’n v. Christopher, 49 F.3d 750, 755 (D.C.
Cir. 1995) (emphases in original), we reverse the district
court’s decision to the contrary and remand the case for
further proceedings consistent with this opinion.
I.
The National Historic Preservation Act, 16 U.S.C. § 470 et
seq., ‘‘requires each federal agency to take responsibility for
the impact that its activities may have upon historic re-
sources, and establishes the Advisory Council on Historic
Preservation TTT to administer the Act.’’ City of Grapevine
v. Dep’t of Transp., 17 F.3d 1502, 1508 (D.C. Cir. 1994).
NHPA section 106 states:
The head of any Federal agency having direct or
indirect jurisdiction over a proposed Federal or fed-
erally assisted undertaking in any State and the
head of any Federal department or independent
agency having authority to license any undertaking
shall, prior to the approval of the expenditure of any
3
Federal funds on the undertaking or prior to the
issuance of any license, as the case may be, take into
account the effect of the undertaking on any district,
site, building, structure, or object that is included in
or eligible for inclusion in the National Register.
The head of any such Federal agency shall afford
the Advisory Council on Historic Preservation TTT a
reasonable opportunity to comment with regard to
such undertaking.
16 U.S.C. § 470f (emphases added). An ‘‘essentially TTT
procedural statute,’’ City of Alexandria v. Slater, 198 F.3d
862, 871 (D.C. Cir. 1999), section 106 imposes no substantive
standards on agencies, but it does require them to solicit the
Council’s comments and to ‘‘take into account the effect of
[their] undertaking[s].’’ Section 211 adds that the Council
may ‘‘promulgate such rules and regulations as it deems
necessary to govern the implementation of [section 106] in its
entirety.’’ 16 U.S.C. § 470s.
This case involves a dispute over which projects trigger
section 106’s procedural requirements: (1) all statutory ‘‘un-
dertakings’’ or (2) only ‘‘undertakings’’ that are ‘‘Federal or
federally assisted’’ or licensed by a ‘‘Federal department or
independent agency.’’ Before 1992, this was a distinction
without a difference, since section 301—the NHPA’s defini-
tional section—defined ‘‘undertaking’’ as ‘‘any action as de-
scribed in [section 106].’’ 16 U.S.C. § 470w(7) (1988). In
1992, however, Congress amended section 301, replacing its
cross-reference to section 106 with a specific definition:
‘‘Undertaking’’ means a project, activity, or program
funded in whole or in part under the direct or
indirect jurisdiction of a Federal agency, including—
(A) those carried out by or on behalf of the
agency;
(B) those carried out with Federal financial as
sistance;
(C) those requiring a Federal permit[,] license,
or approval; and
4
(D) those subject to State or local regulation
administered pursuant to a delegation or ap-
proval by a Federal agency.
16 U.S.C. § 470w(7).
In 2000, following a seven-year rulemaking process, the
Council promulgated a regulation (now codified at 36 C.F.R.
§ 800.1 et seq.) which ‘‘implemented the 1992 amendments to
the TTT NHPA,’’ 65 Fed. Reg. 77,698, 77,698 (Dec. 12, 2000),
in order to ‘‘define how Federal agencies meet the[ir] statuto-
ry responsibilities’’ under section 106, 36 C.F.R. § 800.1(a).
In a provision entitled ‘‘Initiation of the section 106 process,’’
the Council’s regulation specifies that agencies must first
‘‘determine whether the proposed Federal action is an under-
taking as defined in § 800.16(y).’’ Id. § 800.3(a). In turn,
section 800.16(y) defines ‘‘undertaking’’ in language virtually
identical to NHPA section 301’s, including its reference to
undertakings ‘‘subject to State or local regulation adminis-
tered pursuant to a delegation or approval by a Federal
agency.’’ The regulation goes on to establish a series of
procedures—e.g., consultation with the Council, state histori-
cal preservation officers, and the public—with which agencies
must comply if their actions qualify as ‘‘undertakings’’ with
potential to affect historic properties. See 36 C.F.R.
§§ 800.3–800.7.
Appellant National Mining Association (NMA), a non-profit
trade organization, filed suit in the United States District
Court for the District of Columbia, charging the Council with
exceeding its statutory authority to promulgate regulations
‘‘govern[ing] the implementation’’ of section 106. 16 U.S.C.
§ 470s. The NMA alleged that sections 800.3(a) and
800.16(y) of the regulation exceed the Council’s statutory
authority because they attach procedural requirements to
undertakings ‘‘subject to State or local regulation adminis-
tered pursuant to a delegation or approval by a Federal
agency,’’ even though such undertakings are neither funded
nor licensed by the federal government as required by NHPA
section 106. The NMA is concerned that the Council’s regu-
lation applies to state and local agencies that issue permits
under so-called cooperative federalism statutes such as the
5
Surface Mining Control and Reclamation Act (SMCRA), 30
U.S.C. § 1201 et seq., the Clean Water Act, 33 U.S.C. § 1251
et seq., and the Resource Conservation and Recovery Act, 42
U.S.C. § 6901 et seq. For example, although the NMA
concedes that ‘‘[t]he federal government’s approval of a
State’s overall SMCRA permitting program may arguably be
an action subject to Section 106, because the federal govern-
ment contributes funds to the general administration of state
permitting programs and approves those programs,’’ it con-
tends that individual state mining permits do not fall within
that section since ‘‘the federal government does not retain the
authority to approve or reject any one mining project applica-
tion.’’ Appellant’s Br. at 31 n.10 (emphasis in original).
On cross-motions for summary judgment, the district court
rejected the NMA’s argument that the Council lacks statuto-
ry authority to regulate state and local permitting agencies,
holding that ‘‘section 106 applie[s] to the full range of under-
takings defined in [section 301].’’ Nat’l Mining Ass’n v.
Slater, 167 F. Supp. 2d 265, 290 (D.D.C. 2001); see also Nat’l
Mining Ass’n v. Slater, No. 00-00288, mem. op. at 3-6 (D.D.C.
Nov. 28, 2001) (denying the NMA’s motion to alter or amend
the court’s previous opinion). The NMA appeals. We review
the district court’s grant of summary judgment for the Coun-
cil de novo. Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C.
Cir. 1997).
II.
Before addressing the merits of the NMA’s claim, we must
consider the Council’s argument that the NMA’s ‘‘concerns
are too speculative and abstract to warrant review at this
time.’’ Appellees’ Br. at 11. The district court rejected this
argument, as do we.
‘‘The framework for analyzing the ripeness of pre-
enforcement agency action is well establishedTTTT [W]e must
consider ‘both the fitness of the issue[ ] for judicial decision
and the hardship to the parties of withholding court consider-
ation.’ ’’ Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 434 (D.C.
Cir. 1986) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149
6
(1967) (second alteration in original)). Within this frame-
work, ‘‘[i]f we have doubts about the fitness of the issue for
judicial resolution, then we balance the institutional interests
in postponing review against the hardship to the parties that
will result from delay. Where, however, there are no signifi-
cant agency or judicial interests militating in favor of delay,
[lack of] hardship cannot tip the balance against judicial
review.’’ Consol. Rail Corp. v. United States, 896 F.2d 574,
577 (D.C. Cir. 1990) (internal quotation marks and citation
omitted) (addition in original).
Beginning with fitness, ‘‘we ask first whether the issue
raised in the petition for review presents a purely legal
question, in which case it is presumptively reviewable.’’ Am.
Petroleum Inst. v. EPA, 906 F.2d 729, 739 (D.C. Cir. 1990)
(internal quotation marks and citation omitted). Answering
this question is easy: Because the NMA’s challenge requires
us to resolve the relationship between the NHPA’s definition-
al and operational provisions, we face a purely legal issue.
The Council does not argue otherwise.
We next ‘‘consider whether the agency or court will benefit
from deferring review until the agency’s policies have crystal-
lized through the application of the policy to particular facts.’’
Id. (internal quotation marks and citation omitted). Putting
the point somewhat differently, we must decide ‘‘whether
consideration of the issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.’’
Her Majesty the Queen ex rel. Ontario v. EPA, 912 F.2d
1525, 1532 (D.C. Cir. 1990). The Council argues that the
NMA’s claim fails at this second stage of the fitness inquiry.
According to the Council, by instructing agencies to ‘‘deter-
mine whether the proposed Federal action is an undertaking
as defined in § 800.16(y),’’ 36 C.F.R. § 800.3(a) (emphasis
added), the regulation leaves room for individual agencies to
decide whether the term ‘‘Federal action’’—defined in neither
the regulation nor the statute—limits the regulation’s applica-
tion to a subset of section 301 ‘‘undertakings.’’ Appellees’ Br.
at 30. This case is unripe, the Council argues, because the
term ‘‘Federal action’’ introduces enough ambiguity into 36
C.F.R. § 800.3 that the Council cannot itself say what the
7
regulation means and to whom it applies until ‘‘various feder-
al, state and local officials’’ actually apply it. Appellees’ Br.
at 16. For two reasons, we are unpersuaded.
First, even though the Council is surely correct that 36
C.F.R. § 800.3 is not a model of clarity, we see no reason to
postpone the purely legal task of interpreting the ambiguous
regulation until the ‘‘various federal, state and local officials’’
have interpreted it first, especially since those officials would
receive no deference in interpreting either the NHPA or the
Council’s regulation. See Nat’l Treasury Employees Union
v. Fed. Labor Relations Auth., 848 F.2d 1273, 1275 (D.C. Cir.
1988) (‘‘Although we must give considerable deference to [an
agency’s] construction of its enabling statute, TTT we need not
defer to its interpretation of other statutes TTT or to its
construction of regulations promulgated by other agen-
ciesTTTT’’ (internal citations omitted)). The ripeness doctrine,
by focusing on whether ‘‘the agency’s policies have crystal-
lized,’’ Am. Petroleum Inst., 906 F.2d at 739 (internal quota-
tion marks and citation omitted), and on whether ‘‘the agen-
cy’s action is sufficiently final,’’ Her Majesty the Queen, 912
F.2d at 1532, protects agency ability to ‘‘deliberate and craft
policy free of judicial interference,’’ Ciba-Geigy, 801 F.2d at
434. In this case, the agency whose deliberative freedom
enjoys protection by the ripeness doctrine is the Council, for
it is the Council to whom Congress gave regulation-writing
authority, and it is the Council’s interpretation of its own
regulation that ‘‘command[s] substantial judicial deference.’’
McMillan Park Comm. v. Nat’l Capital Planning Comm’n,
968 F.2d 1283, 1288 (D.C. Cir. 1992). The Council cites no
authority, nor are we aware of any, for the proposition that
the need to preserve breathing room for policymaking agen-
cies also extends to entities—including, according to the
Council, even state and local agencies—responsible for me-
chanically implementing policymaking agencies’ regulations.
Second, the Council has retreated from its position, assert-
ed in its brief, that 36 C.F.R. § 800.3’s scope has not yet been
crystallized. Pressed at oral argument, the Department of
Justice attorney representing the Council, after consulting
8
with the agency’s attorney, informed us that the Council
intends its regulation to implicate all section 301 ‘‘undertak-
ings,’’ notwithstanding 36 C.F.R. § 800.3’s apparently tooth-
less reference to ‘‘Federal action.’’ Moreover, the record
contains evidence that a key agency has already interpreted
the Council’s regulation in just this way. A March 2000 letter
from the Office of Surface Mining Reclamation and Enforce-
ment of the U.S. Department of the Interior to a state
permitting agency explains that the NHPA ‘‘makes clear that
State permitting actions and related activities under the
Surface Mining Control and Reclamation Act (SMCRA) are
subject to section 106 review and consultation requirements.’’
Though the regulation challenged here was not yet issued
when the Office of Surface Mining wrote this letter, the letter
notes that the agency reached its interpretation in light of a
regulation the Council promulgated in 1999—a regulation that
is substantively identical to the one at issue here.
This acknowledged applicability of the Council’s regulations
to state and local agencies that operate ‘‘pursuant to a
delegation or approval by a Federal agency’’ distinguishes
this case from Clean Air Implementation Project v. EPA, 150
F.3d 1200 (D.C. Cir. 1998), upon which the Council relies.
There, the Environmental Protection Agency had changed
the acceptable testing methods for measuring compliance
with the Clean Air Act’s pollution standards. Petitioners
claimed—and the EPA denied—that changing the testing
methods amounted to ‘‘changing the standard[s] themselves.’’
Id. at 1203. Lacking the evidence necessary to decide wheth-
er altering permissible testing methods had in fact changed
the EPA’s underlying CAA standards, we concluded that
‘‘[a]s matters now stand, there are too many imponderables,’’
and declined to decide whether the alleged change in stan-
dards was unlawful. Id. at 1205. Here, by contrast, no
threshold factual issues counsel postponing judgment. All
disputed issues are purely legal, as the Council itself con-
cedes, and given its representation at oral argument and the
Office of Surface Mining’s letter, there are no imponderables.
9
III.
Turning to the merits of the NMA’s contention that the
Council exceeded its statutory authority, we start, as always,
by asking whether Congress has spoken to ‘‘the precise
question at issue.’’ Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). If it has, both we and
the agency must give effect to Congress’s unambiguously
expressed intent. Id. at 842–43. Only if we find the statute
either silent or ambiguous with respect to ‘‘the precise ques-
tion at issue’’ do we proceed to Chevron’s second step, asking
‘‘whether the agency’s answer is based on a permissible
construction of the statute.’’ Id. at 842–44.
In this case, our analysis begins and ends at Chevron step
one. NHPA section 211 unambiguously limits the Council to
promulgating regulations that ‘‘govern the implementation of
[section 106].’’ 16 U.S.C. § 470s. Not arguing otherwise, the
Council contends that 36 C.F.R. § 800.3 lawfully implements
section 106 because ‘‘the section 106 process applies to the full
range of undertakings defined in section 301.’’ Appellees’ Br.
at 23. That argument, however, is barred by Sheridan
Kalorama Historical Association v. Christopher, 49 F.3d 750
(D.C. Cir. 1995), which squarely holds that Congress’s 1992
broadening of section 301 did not override section 106’s
requirement that the project be federally funded or licensed.
Sheridan Kalorama involved the Secretary of State’s deci-
sion not to exercise his veto power under the Foreign Mis-
sions Act, 22 U.S.C. § 4301 et seq., to halt the Republic of
Turkey’s plans to demolish its chancery. The Sheridan Kalo-
rama Historical Association and others filed suit, alleging that
NHPA section 106 required the Secretary to solicit Council
comments on his decision not to veto Turkey’s demolition.
Because Sheridan Kalorama’s holding on this issue is dispos-
itive here, we quote it in full:
The plaintiffs—and indeed the [Council] and some
other courts—proceed as if the review provision of
§ 106 automatically applies once a project is deemed
10
an ‘‘undertaking.’’ Such confusion is understanda-
ble; for the 1992 amendment oddly appends the
concepts of ‘‘licensing’’ and ‘‘approval’’ to the defini-
tion of ‘‘undertaking,’’ even though the text of § 106
still applies by its terms only to federally funded or
federally licensed undertakings. Thus however
broadly the Congress or the [Council] define ‘‘under-
taking,’’ § 106 applies only to: 1) ‘‘any Federal
agency having TTT jurisdiction over a proposed Fed-
eral or federally assisted undertaking’’; and 2) ‘‘any
Federal TTT agency having authority to license any
undertaking.’’ Such an agency is required, as the
case may be, either to take certain actions ‘‘prior to
the approval of the expenditure of any Federal funds
on the undertaking,’’ or ‘‘prior to the issuance of any
license.’’ Therefore, unless Turkey’s efforts to re-
place its chancery are either federally funded or
federally licensed, § 106 simply does not apply to its
project.
Id. at 755-56 (internal citations omitted) (emphases in origi-
nal). Concluding that the Secretary’s inaction constituted
neither federal funding nor federal licensing, the court ruled
that section 106 did not apply. Id. at 756.
Nowhere does the Council’s brief so much as mention this
relevant discussion from Sheridan Kalorama. Instead, the
Council points to a different section of the opinion discussing
what the court viewed as a puzzling implication of section
301(7)’s introduction. According to the court, the phrase
‘‘funded in whole or in part under the direct or indirect
jurisdiction of a federal agency, including TTT’’ seems to
‘‘confine the notion of an ‘undertaking’ ’’ to federally funded
projects ‘‘and thus by omission to exclude a federally licensed
project from the coverage of the statute.’’ Id. at 755. ‘‘That
reading of the definition, however,’’ the court explained,
‘‘would deprive the references to licensing in § 106 of any
practical effect. We infer, therefore, that the amending
Congress [in 1992] intended to expand the definition of an
‘undertaking’—formerly limited to federally funded or li-
11
censed projects—to include projects requiring a federal ‘per-
mit’ or merely federal ‘approval.’ ’’ Id.
Contrary to the Council’s contention, the last sentence of
this passage does not hold that section 106 applies to the full
range of section 301 ‘‘undertakings.’’ Rather, it explains that
Congress would not have amended section 301’s definition of
‘‘undertaking’’ to exclude federally licensed projects, since
doing so would rob section 106’s application to ‘‘federally
funded or licensed’’ undertakings of its full disjunctive scope.
Sheridan Kalorama therefore concludes that amended sec-
tion 301 must be interpreted as being at least as broad as
section 106. In other words, the passage the Council relies
on is entirely consistent with the one it ignores: The former
explains that section 301, the definitional section, must be at
least as broad as section 106, the jurisdictional section to
which it applies; the latter explains that section 301 is in fact
broader, since no matter how expansively Congress chooses
to define the word ‘‘undertaking,’’ section 106 confers on the
Council jurisdiction over ‘‘federally funded or federally li-
censed undertakings’’ only.
In sum, Sheridan Kalorama’s unambiguous analysis of the
relationship between sections 106 and 301 relieves us of the
need—indeed authority—to perform our own statutory analy-
sis. See, e.g., Brewster v. Commissioner, 607 F.2d 1369,
1373-74 (D.C. Cir. 1979) (panels are bound to follow circuit
precedents until en banc court or Supreme Court overrules
those precedents). Because Sheridan Kalorama holds that
‘‘section 106 TTT applies by its terms only to federally funded
or federally licensed undertakings,’’ 49 F.3d at 755 (emphases
in original), and not to undertakings that are merely ‘‘subject
to State or local regulation administered pursuant to a dele-
gation or approval by a Federal agency,’’ 36 C.F.R.
§ 800.16(y), we reverse the judgment of the district court and
remand the case for further proceedings consistent with this
opinion.
So ordered.