dissenting:
Paragraph 1232(a) of the Surface Mining Control Act deals with a reclamation fee for “surface coal mining” and another (lesser) fee for “underground mining.” Section 1201(c) refers to surface mining operations and “disturbance of surface areas ... by destroying or diminishing the utility of land.” Section 1202(e) discusses reclaiming of “surface areas” contemporaneously with “surface coal mining operations.” In § 1291(28), “surface coal mining operations” are defined as
activities conducted on the surface of lands in connection with a surface coal mine ... including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining. ... [PJrovided, however, that such activities do not include the extraction of coal incidental to the extraction of other minerals.
We are concerned with whether Cumberland, which operated a dredging facility on the Cumberland River, was conducting “surface coal mining operations” in dredging the river bottom for coal, sand, and gravel under the meaning of the Act. The Act makes no mention of dredging on the water for coal. I agree with that portion of the opinion in United States v. H.G.D. & J. Min. Co., Inc., 561 F.Supp. 315, 319 (S.D.W.Va.1983), which states that “the Act’s provisions are indeed unambiguous.”
Since we are construing an “unambiguous” statute, we must decide the applicability and interpretation of that statute de novo. Also, as stated in H.G.D. & J. Min. Co., 561 F.Supp. at 319, in such a situation “our starting point for discerning congres*169sional intent is the language of the statute itself.” (Citing State Water Control Board v. Train, 559 F.2d 921, 924-25 n. 20 (4th Cir.1977)). See Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 2207, 65 L.Ed.2d 144 (1980). We interpret the words used “taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) (“the sense in which it is used in everyday life”); In re Great Western Petroleum Corp., 16 F.Supp. 247, 249 (S.D.Cal.1936), citing United States v. Bhaget Singh Thind, 261 U.S. 204, 43 S.Ct. 338, 67 L.Ed. 616 (1923). We do not serve as a rubber stamp for administrative determinations as to the meaning of a statute. A.T.F. Bureau v. FLRA, 464 U.S. 89, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983).
The statutory language under consideration begins with the word, “surface.” Webster defines this as “one or more of the faces of a three-dimensional thing: a plane of a solid < the uneven "of the earth > <on the "of the water > ... the outward appearance or characteristics of something.” Webster Third New International Dictionary. This captures what is in my mind’s eye in viewing “surface” — the appearance of the surface or outer plane of land or earth which is different from the surface of water.
Next, we look at the word, “mining,” described as “the process or business of making or working mines.”3 Webster, supra. The statute is intended to protect from destruction or “diminishing the utility of land.” § 1201(c). In turn, “land” is most commonly defined as “the solid part of the surface of the earth in contrast to the water.” Webster, supra (see Genesis 1:9-11).
The definition in the statute of usual or common means or methods of “surface coal mining operations” all relate plainly to land operations, not dredging operations over water. Even if all the ways described in § 1291(28) are deemed illustrative and not inclusive, this additional language adds strong support to my view that “surface coal mining and reclamation operations” do not include dredging from the surface of water within the ordinary and usual meaning of terms and language employed in the statute. That “water” operations are not expressly excluded from the statute is of no great significance.
Only one court has considered this problem of statutory interpretation. H.G.D. & J. Min. Co. was decided by a district judge and important to that court’s decision was its analogy of dredging operations to “placer mining,” an analogy I find unpersuasive, being tied to the concept of “reclaimed coal” (“coal recovered from a deposit that is not in its original geological location.” Id. at 324). The decision in H.G.D. & J. Min. Co., moreover, was based upon stipulations that went into considerable detail not covered in the case in controversy. Brentwood, Inc., 761 BLA 73 (1983), followed H.G.D. & J. Min. Co. and also relied upon the legislative history of the Act, rather than the plain, unambiguous language therein, as did the district court.
We do not look first to the legislative history. Instead, we apply the well known rule that statutory construction begins with the plain words of the statute. In re Revco D.S., Inc., 898 F.2d 498, 500 (6th Cir.1990). Only if we determine the language of the statute is ambiguous do we turn to the legislative history. United States v. Barry, 888 F.2d 1092, 1093 (6th Cir.1989).
We are free to make our own reasonable and sensible construction of the Act even if we give some deference to the administrative agency. I would hold that surface mining operations do not include dredging over water. I would therefore reverse both the administrative and district court decisions for the reasons that they are “not in accordance with law.” 5 U.S.C. § 706. *170In addition to this basic disagreement with the administrative interpretation of the statute approved by the district court, I would hold that the Interior Board of Land Appeals (IBLA) in this case erred to the serious detriment of Cumberland by denying it a hearing and an opportunity for it to demonstrate the nature of its operations and whether Cumberland actually penetrated the riverbed by its method of dredging operation. If Cumberland did not penetrate the earth below the river, as it contended by the affidavit of an expert, it is clearly distinguishable from the situation in H.G.D. & J. Min. Co. The denial of a hearing also limited Cumberland a fair opportunity to prove that production of coal amounted to less than one-sixth of its mineral production of sand, gravel and stone at the location, and also the two acre exemption. (30 U.S.C. § 1278(2)).
For the reasons stated, I would reverse the decision of the district court. In the alternative, under the circumstances, I would remand to the administrative hearing to enable Cumberland a fair opportunity to establish its claimed exceptions exemptions.
. A "mining claim" is described as “a parcel of land, containing precious metal in its soil or rock.” Black’s Law Dictionary (5th ed.) (emphasis added). The precious mineral involved in this case, coal, needs no further definition — it is not at issue here. Dredging, of course, is a "form of excavation conducted under water.” A Dictionary of Mining, Mineral & Related Terms at 349 (Bur. of Mines, 1968).