Ctzn Coal Cncl v. Norton, Gale A.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2003 Decided June 3, 2003

No. 02-5136

CITIZENS COAL COUNCIL, ET AL.,
APPELLEES/CROSS–APPELLANTS

v.

GALE A. NORTON, SECRETARY OF THE INTERIOR, AND
NATIONAL MINING ASSOCIATION,
APPELLANT/CROSS–APPELLEES

–————
Consolidated with
02–5137, 02–5190, 02–5232, 02–5244, 02–5245

Appeals from the United States District Court
for the District of Columbia
(No. 00cv00274)

Kathryn E. Kovacs, Attorney, U.S. Department of Justice,
argued the cause for federal appellant/cross-appellee Secre-

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

tary of the Interior. With her on the briefs were William B.
Lazarus and Robert H. Oakley, Attorneys.
Thomas C. Means argued the cause for appellant/cross-
appellee National Mining Association. With him on the briefs
were J. Michael Klise, Kirsten L. Nathanson, and Harold P.
Quinn, Jr.
Walton D. Morris, Jr., argued the cause for appel-
lees/cross-appellants. With him on the briefs were Paul W.
Edmondson, Elizabeth S. Merritt, Howard I. Fox, and Glenn
P. Sugameli.
Gregory E. Conrad and Christopher B. Power were on the
brief for amicus curiae Interstate Mining Compact Commis-
sion in support of the Secretary of the Interior and the
National Mining Association. Henry M. Ingram entered an
appearance.
Before: SENTELLE and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: This is an appeal by the Secre-
tary of the Interior and intervenor National Mining Associa-
tion (‘‘NMA’’) from a judgment of the District Court. The
District Court held that the Secretary’s interpretation of the
Surface Mining Control and Reclamation Act’s (‘‘SMCRA’’)
section 701(28), 30 U.S.C. § 1291(28) (2000), to exclude subsi-
dence from the definition of ‘‘surface coal mining operations’’
regulated under section 522(e) of the Act, 30 U.S.C. § 1272(e),
was contrary to the law and therefore invalid. Because we
find that Congress did not speak unambiguously on this
precise issue in the SMCRA and because we find the Secre-
tary’s interpretation to be reasonable, we defer to the Secre-
tary and reverse the District Court.

I. Background
A. The Litigation
This case began with Citizens Coal Council’s (‘‘CCC’’) chal-
lenge to the Secretary of the Interior’s final rulemaking
 3

action by which she promulgated the regulation contained in
30 C.F.R. § 761.200 (2003). The challenged regulation is an
interpretive rule, based on sections 701(28) and 522(e) of the
SMCRA, 30 U.S.C. § 1201, et seq. The regulation states:
761.200 Interpretive rule related to subsidence due to
underground coal mining in areas designated by Act of
Congress. OSM has adopted the following interpretation
of rules promulgated in part 761.
(a) Interpretation of § 761.11—Areas where mining is
prohibited or limited. Subsidence due to underground
coal mining is not included in the definition of surface
coal mining operations under section 701(28) of the Act
and § 700.5 of this chapter and therefore is not prohibit-
ed in areas protected under section 522(e) of the Act.
30 C.F.R. § 761.200. CCC sought review of this rulemaking
in District Court, after exhausting its administrative reme-
dies. It claimed that the Secretary’s interpretation of the
cited provisions of the SMCRA was contrary to the clear law,
and therefore, unworthy of any deference by the courts. As a
remedy, CCC requested that the court vacate the regulation
and instruct the Secretary to impose instead, a regulation
stating that subsidence was included within 701(28)’s defini-
tion. The District Court granted CCC’s motion for summary
judgment holding that ‘‘Congress has expressed its intent
clearly on the precise point at issue here and that the
Secretary’s interpretation of § [701(28)] and § [522(e)] is
contrary to law.’’ Citizens Coal Council v. Norton, 193
F. Supp. 2d 159, 165 (D.D.C. 2002). The District Court then
remanded the regulation to the Secretary without instruction.
CCC filed a notice of appeal on April 11, 2002, and interve-
nor NMA filed its notice the following day. On June 5, 2002,
the District Court granted the appellant’s motion to stay the
remand order, but vacated the regulation and stayed its
judgment pending appeal. See Citizens Coal Council v.
Babbitt, No. 00–0274 (June 5, 2002). On June 6, 2002, the
Secretary filed a notice of appeal of both rulings. In the
present case, the Secretary and NMA appeal the District
Court’s ruling that the regulation was invalid and its subse-
 4

quent vacation of the regulation, and CCC appeals the Dis-
trict Court’s refusal to grant the full relief it requested.
B. The Statutory Scheme
We recognize from the outset that the SMCRA is a com-
plex and often puzzling statute, in many cases raising a
variety of questions as to its correct interpretation. SMCRA
was enacted in an effort by Congress to both ‘‘protect society
and the environment from the adverse effects of surface coal
mining operations’’ and to ‘‘assure that the coal supply essen-
tial to the Nation’s energy requirements, and to its economic
and social well-being is provided and strike a balance between
protection of the environment and agricultural activity and
the Nation’s need for coal as an essential source of energy.’’
30 U.S.C. § 1202(a), (f). As the District Court recognized
and the parties do not dispute, the focus of the regulation in
SMCRA was primarily on the surface mining techniques,
such as strip-mining, and one of its goals was to encourage
the development and application of underground mining tech-
nologies as an alternative less likely to disturb lands used for
other activities. See Citizens Coal, 193 F. Supp. 2d at 161
(citing 30 U.S.C. §§ 1201, 1202(k)).
To this purpose, SMCRA section 522(e) prohibits ‘‘surface
coal mining operations’’ with certain exceptions, in a number
of protected areas, particularly within the boundaries of the
national parks system, national forests, and public parks and
historic sites. In addition, these operations are also prohibit-
ed ‘‘within [100] feet of the outside right-of-way line of any
public road’’; ‘‘within [300] feet from any occupied dwelling,
unless waived by the owner thereof’’; and ‘‘within [300] feet
of any public building, school, church, community, or institu-
tional building, public park, or within [100] feet of a ceme-
tery.’’ 30 U.S.C. § 1272(e)(4), (5).
SMCRA section 701(28) defines ‘‘surface coal mining opera-
tions’’ as follows:
(A) activities conducted on the surface of lands in con-
nection with a surface coal mine or subject to the re-
 5

quirements of section 1266 of this title surface operations
and surface impacts incident to an underground coal
mine, the products of which enter commerce or the
operations of which directly or indirectly affect interstate
commerce. Such activities include excavation for the
purpose of obtaining coal including such common meth-
ods as contour, strip, auger, mountaintop removal, box
cut, open pit, and area mining, the uses of explosives and
blasting, and in situ distillation or retorting, leaching or
other chemical or physical processing, and the cleaning,
concentrating, or other processing or preparation, load-
ing of coal for interstate commerce at or near the mine
site TTT and
(B) the areas upon which such activities occur or where
such activities disturb the natural land surface. Such
areas shall also include any adjacent land the use of
which is incidental to any such activities, all lands affect-
ed by the construction of new roads or the improvement
or use of existing roads to gain access to the site of such
activities and for haulage, and excavations, workings,
impoundments, dams, ventilation shafts, entryways, re-
fuse banks, dumps, stockpiles, overburden piles, spoil
banks, culm banks, tailings, holes or depressions, repair
areas, storage areas, processing areas, shipping areas
and other areas which are sited structures, facilities, or
other property or materials on the surface, resulting
from or incident to such activities[.]
30 U.S.C. § 1291(28). SMCRA section 516(a) requires the
Secretary to promulgate rules and regulations directed to-
ward ‘‘the surface effects of underground coal mining opera-
tions’’ embodying the requirements of section 516(b), but
instructs the Secretary, in adopting such rules, to ‘‘consider
the distinct difference between surface coal mining and un-
derground coal mining.’’ 30 U.S.C. § 1266(a). The permit
requirement of section 516(b) mentions subsidence specifical-
ly, in contrast to sections 522 and 701(28).
516(b): Permit requirements
 6

Each permit issued under any approved State or Federal
program pursuant to this chapter and relating to under-
ground coal mining shall require the operator to—
(1) adopt measures consistent with known technology in
order to prevent subsidence causing material damage to
the extent technologically and economically feasible, max-
imize mine stability, and maintain the value and reason-
ably foreseeable use of such surface lands, except in
those instances where the mining technology used re-
quires planned subsidence in a predictable and controlled
manner: Provided, That nothing in this subsection shall
be construed to prohibit the standard method of room
and pillar mining;
30 U.S.C. § 1266(b)(1). Section 516(c) extends the Secre-
tary’s authority to regulate underground coal mining if it
creates a danger to inhabitants.
c) Suspension of underground coal mining operations in
urbanized areas
In order to protect the stability of the land, the regulato-
ry authority shall suspend underground coal mining un-
der urbanized areas, cities, towns, and communities and
adjacent to industrial or commercial buildings, major
impoundments, or permanent streams if he finds immi-
nent danger to inhabitants of the urbanized areas, cities,
towns, and communities.
30 U.S.C. § 1266(c). Section 516(d) extends the subchapter
to cover ‘‘surface operations and surface impacts incident to
underground coal mining operations.’’
The provisions of this subchapter relating to State and
Federal programs, permits, bonds, inspections and en-
forcement, public review, and administrative and judicial
review shall be applicable to surface operations and
surface impacts incident to an underground coal mine
with such modifications to the permit application require-
ments, permit approval or denial procedures, and bond
requirements as are necessary to accommodate the dis-
 7

tinct difference between surface and underground coal
mining.
30 U.S.C. § 1266(d).

II. Analysis
We review the Secretary’s interpretation of the provisions
of the SMCRA, a statute she administers, under the analysis
articulated in Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). The two-step test of
Chevron requires, first, that both the agency and the courts
give effect to Congress’s unambiguously expressed intent if
the underlying statute speaks directly to the precise question
at issue. Chevron, 467 U.S. at 842–43. In this first analytical
step, the courts use ‘‘traditional tools of statutory interpreta-
tion–text, structure, purpose, and legislative history.’’
Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219,
224 (D.C. Cir. 2001). If, however, the statute is ‘‘silent or
ambiguous with respect to the specific issue’’ the court must
defer to the agency’s interpretation if it is reasonable. Chev-
ron, 467 U.S. at 843. Because we find that the term ‘‘surface
impacts incident to an underground coal mine’’ as it appears
in section 701(28) does not unambiguously include subsidence,
the second step of Chevron requires that we defer to the
Secretary’s reasonable interpretation of the statute and re-
verse the District Court. See NMA v. Dep’t of the Interior,
105 F.3d 691, 694 (D.C. Cir. 1997).
We begin, as always, with the plain language of the statute
in question. The Secretary interprets the definition of ‘‘sur-
face coal mining operations’’ contained in 701(28), and thereby
prohibited in 522(e), to exclude subsidence. The Secretary
first argues that the plain meaning of the word ‘‘operations’’
suggests a reference to some human activity, and not to a
possible effect of underground mining, like subsidence. See
Webster’s Third New International Dictionary 1581 (1971)
(defining ‘‘operation’’ as ‘‘doing or performing’’). If 701(28)’s
definition ended after its first phrase, ‘‘activities conducted on
the surface of lands in connection with a surface coal mine or
subject to the requirements of section 516 surface opera-
 8

tions,’’ this interpretation might be more clearly compelled.
However, as CCC points out, the phrase which follows:
‘‘surface operations and surface impacts incident to an under-
ground coal mine’’ could add significantly to the scope of the
term ‘‘operations’’ as used in this context.
As the District Court noted, the Secretary essentially pars-
es the definition to read ‘‘activities conducted on the surface
of lands in connection with [1] a surface coal mine or [2]
subject to the requirements of section 1266 of this title[,]
surface operations and surface impacts incident to an under-
ground coal mineTTT’’. Citizens Coal, 193 F. Supp. 2d at 163
(citing 30 U.S.C. § 1291(28)(A)). The Secretary supports this
interpretation with the definition’s next sentence which be-
gins with the phrase ‘‘[s]uch activities.’’ This phrase is
repeated throughout the remainder of the definition, and is
defined within the provision by the examples of activities
listed, e.g., excavation; physical or chemical processing; and
loading for interstate transport. See 30 U.S.C. § 1291(28)(A).
The Secretary therefore concludes that the opening sentence
refers to these ‘‘activities’’ only. The District Court held that
this reading was not ‘‘the most natural’’ one, in light of the
legislative history and the overall purpose of the Act. See
Citizens Coal, 193 F. Supp. 2d at 163–64. The reading
advanced as the ‘‘most natural’’ by CCC and accepted by the
District Court ‘‘becomes apparent with the addition of three
commas’’ as follows: ‘‘ ‘surface coal mining operations’
means—(A) activities conducted on the surface of lands in
connection with a surface coal mine[,] or [,] subject to the
requirements of section 1266 of this title [,] surface operations
and surface impacts incident to an underground coal
mineTTTT’’ Id. at 163. The District Court and CCC there-
fore read 701(28) to mean the surface coal mining opera-
tions—prohibited in areas specified by 522(e)—to include as a
separate matter ‘‘surface impacts’’ incident to an underground
mine, which must then include subsidence.
We need not disavow the District Court’s determination
that CCC’s tendered interpretation is the more natural one in
order to reverse the District Court and uphold the Secretary.
As noted by the District Court we have, on a previous
 9

occasion, observed that ‘‘[t]he most natural reading of the
[SMCRA] as a whole, and the definition in [§ 1291(28)] in
particular TTT then suggests that ‘surface coal mining opera-
tions’ encompasses both surface coal mines and the surface
effects of underground mines.’’ Citizens Coal, 193 F. Supp.
2d at 163 (quoting Nat’l Wildlife Fed’n v. Hodel, 839 F.2d
694, 753 (D.C. Cir. 1988)). Even assuming the correctness of
our reasoning and that of the District Court, the ambiguity of
the statute in combination with the Chevron doctrine eclipses
the ability of the courts to substitute their preferred interpre-
tation for an agency’s reasonable interpretation when that
agency is the entity authorized to administer the statute in
question. See, e.g., NMA v. Babbitt, 172 F.3d 906, 916 (D.C.
Cir. 1999) (‘‘If we were interpreting the statute de novo, we
might well agree that appellant has the better argument.
But we are not. And although the government’s reading is a
bit of a stretch, we think it passes the Chevron test’’). While
we do not find that the language of the definition of ‘‘surface
coal mining operations’’ compels the exclusion of subsidence
from its scope, neither do we find that the definition compels
its inclusion. Therefore, we endeavor to resolve this issue
under the second analytical step of Chevron because Con-
gress has not spoken unambiguously on this precise question.
We find the Secretary’s interpretation, while not necessarily
the most natural one, is reasonable, and therefore we defer to
it. Cf. Young v. Cmty. Nutrition Inst., 476 U.S. 974, 980–81.
(1986). (Upholding the FDA’s interpretation of an ambiguous
statutory provision, finding that although the lower court’s
‘‘reading of the statute may seem to be the more natural
interpretation TTT the phrasing TTT admits of either respon-
dents’ or petitioners’ reading of the statuteTTTT We find the
FDA’s interpretation TTT to be sufficiently rational to pre-
clude a court from substituting its judgment for that of the
FDA.’’).
Both parties argue that the legislative history of the
SMCRA supports its interpretation. CCC relies on several
statements in the Senate and House reports relating to
SMCRA’s promulgation. According to CCC, the Senate re-
port indicates that SMCRA was addressed to ‘‘surface coal
 10

mining operations-including exploration activities and the sur-
face effects of underground mining.’’ S. REP. NO. 95–128, at
49 (1977). CCC contends that the report clarifies that those
effects include subsidence, quoting a discussion in the report
on the environmental hazards posed by coal mining: ‘‘Similar
hazards also occur from the surface effects of underground
coal mining, including the dumping of coal waste piles, subsi-
dence and mine fires.’’ Id. at 50. Additionally, the report
states that the Act’s initial regulatory requirements extended
to ‘‘[a]ll surface coal mining operations, which include, by
definition surface impacts incident to underground coal
mines.’’ Id. at 71. The District Court relied on this passage
from the report to support its position that section 522(e)
applied to subsidence.

‘Surface coal mining operations’ is so defined to include
not only traditionally regarded coal surface mining activi-
ties but also surface operations incident to underground
coal mining, and exploration activities. The effect of this
definition is that coal surface mining and surface impacts
of underground coal mining are subject to regulation
under this Act.

Id. at 98. The court found that the references in the reports
to ‘‘surface effects’’ of underground coal mining, and ‘‘surface
impacts’’ of underground coal mining must include subsi-
dence. See Citizens Coal, 193 F. Supp. 2d at 163–64. Final-
ly, CCC contends that the House report also supports its
position in a discussion entitled ‘‘Surface Impacts of Under-
ground Mines,’’ stating:
The environmental problems associated with under-
ground mining for coal which are directly manifested on
the land surface are addressed in section [516] and other
such sections which may have application. These prob-
lems include surface subsidence.

H.R. REP. NO. 95–218, at 125–26 (1977). Essentially, the CCC
interprets the legislative history’s use of the phrase ‘‘surface
 11

impacts’’ which appears in 701(28) to necessarily include
subsidence.
The Secretary counters with the argument that the legisla-
tive history does show that Congress had an intention to
regulate subsidence within the SMCRA, but intended to limit
that regulation to section 516. More importantly, this inter-
pretation is consistent with the language of the statute.
Section 516 is the only section in the statute in which subsi-
dence is specifically mentioned. This demonstrates that Con-
gress specifically stated that subsidence was being dealt with
in a provision when its intention was to include subsidence
under that section of the SMCRA. The Secretary argues
that the House report on section 516 illustrates Congress’s
intention to authorize the Secretary to regulate subsidence in
that section, rather than prohibit it entirely by way of section
522(e).
Surface subsidence has a different effect on different
land uses. Generally, no appreciable impact is realized
on agricultural land and similar types of land and produc-
tivity is not affected. On the other hand when subsi-
dence occurs under developed land such as an urbanized
area, substantial damage results to surface improve-
ments be they private homes, commercial buildings or
public roads and schoolsTTTT It is the intent of this
section to provide the Secretary with the authority to
require the design and conduct of underground mining
methods to control subsidence to the extent technologi-
cally and economically feasible in order to protect the
value and use of surface lands.
H.R. REP. NO. 95–218, at 126 (1977). The Secretary reiterates
that Congress did not discuss subsidence as being among the
‘‘impacts’’ of underground mining that are prohibited in sec-
tion 522(e) areas. The Secretary also noted that she had
concluded during the promulgation of the regulation at issue
that the passage from the Senate report on which the District
Court specifically relied was ‘‘imprecise’’ and of questionable
precedential value because it states that exploration activities
are included in the definition of ‘‘surface coal mining opera-
tions’’ even though the statute expressly provides to the
 12

contrary. See 64 Fed. Reg. 70,844–45 (citing 30 U.S.C.
§ 1291(28)(A)). Furthermore, the Secretary points out that
the Senate report on section 522(e) notes that ‘‘surface coal
mining’’ is prohibited within the specified distances of public
roads, occupied buildings, and active underground mines ‘‘for
reasons of public health and safety.’’ S. REP. NO. 95–128, at
55. The Secretary posits that to accomplish that purpose,
522(e) need not prohibit subsidence, because underground
mines must already meet the requirements of section 516,
which prevents almost all risks to public health and safety.
Taken together, as is so often the case, legislative history
on which both parties rely is at best inconclusive as to either
interpretation. As Judge Leventhal once observed, reviewing
legislative history is like ‘‘looking over a crowd and picking
out your friends.’’ Patricia M. Wald, Some Observations on
the Use of Legislative History in the 1981 Supreme Court
Term, 68 IOWA L. REV. 195, 214 (1983). This inconclusiveness
underscores our conclusion that the statute is ambiguous on
the question of whether subsidence is included within the
prohibitions in 522(e). In addition, one amendment to the
statute since its promulgation bolsters the reasonableness of
the Secretary’s interpretation. In 1992, Congress added
section 720 to the SMCRA, an amendment entitled ‘‘Subsi-
dence,’’ which provides compensation for property owners
who suffer material damage caused by subsidence to ‘‘occu-
pied residential dwelling and structures related thereto, or
non-commercial building due to underground coal mining
operations.’’ 30 U.S.C. § 1309a(a)(1). Intervenor NMA ar-
gues that the passage of this section demonstrates that
Congress was aware that SMCRA does not prohibit subsi-
dence in section 522(e) areas and therefore added the section
to provide a remedy for property owners damaged by this
result of an underground mining operation. CCC argues that
the addition of this provision does not foreclose their interpre-
tation because section 522(e)’s alleged prohibition of subsi-
dence does not apply to mines operating pursuant to valid
existing rights as of August 3, 1977, and section 720 offers
compensation to property owners damaged by these mines, as
well as to those who have waived 522(e)’s protections, or
 13

where subsidence damage occurs from a mine more than 300
feet away from protected structures, and thereby outside
522(e)’s buffer zone. Nothing in the statute or in section 720
supports CCC’s arguments, and a far more plausible explana-
tion for the provision is that it provides a remedy for subsi-
dence damage, because subsidence was not already prohibited
by section 522(e), as the Secretary argues. While this section
does not, in combination with the others, resolve all ambiguity
on the precise issue in question, it supports the reasonable-
ness of the Secretary’s interpretation.
Finally, we do not find compelling the argument drawn by
CCC from a footnote in the District Court’s opinion. At the
end of its opinion, the court added the note, which reads in
pertinent part: ‘‘[s]ection [522] also falls within § [516(d)]’s
mandate that SMCRA provisions ‘relating to State and Fed-
eral programs [and] permits TTT shall be applicable to surface
operations and surface impacts incident to an underground
coal mine,’ since it imposes requirements on federal and state
regulatorsTTTT’’ Citizens Coal, 193 F. Supp. 2d at 165 n.3.
The District Court offered no further reasoning or explana-
tion in support of this conclusion. CCC argues that this
footnote is an alternative holding meaning that section 516(d),
by referencing provisions ‘‘relating to TTT permits’’ unambigu-
ously requires the Secretary to apply section 522(e) to protect
against subsidence, simply because of the use of the word
‘‘permitted’’ in that later section. We disagree.
There is certainly a colorable difference between the noun
‘‘permit’’ and the verb ‘‘permitted.’’ The SMCRA contains a
number of provisions which do deal directly and specifically
with ‘‘Permits.’’ For example, section 506, 30 U.S.C. § 1256,
is entitled ‘‘Permits’’ and provides for the terms, termination,
and renewal of permits. The following section 30 U.S.C.
§ 1257 is entitled ‘‘Application requirements’’ and provides
for the fee and content requirements of the permits. These
sections stand in contrast to section 522(e) which provides for
a number of prohibitions, and uses the verb ‘‘permitted’’
simply to describe the geographical limitations to which the
Secretary is bound when ‘‘[d]esignating areas unsuitable for
surface coal mining,’’ as the title of the section instructs. See
 14

30 U.S.C. § 1272(e) (no surface coal mining operations TTT
shall be permitted—(1) on any lands within the boundaries of
units of the National Park System TTT (2) on any Federal
lands within the boundaries of any national forest TTT (3)
which will adversely affect any publicly owned park TTT (4)
within 100 feet of the outside right-of-way line of any public
road TTT (5) within 300 feet from any occupied dwellingTTTT).
Thus, the ‘‘permit’’ argument based on section 516(d) has no
compelling force on the interpretation of section 522(e).

III. Conclusion
For the reasons explained above, we find that the definition
of ‘‘surface coal mining operations’’ in SMCRA section 701(28)
is ambiguous as to whether Congress intended it to include
subsidence, and therefore, whether subsidence is among the
prohibitions contained in section 522(e) is likewise ambiguous.
We conclude that the Secretary’s interpretation, albeit per-
haps not the ‘‘most natural’’ reading, is a reasonable one, and
therefore we defer to that interpretation in accordance with
the requirements of Chevron. We reverse the decision of the
District Court and uphold the validity of the regulation.