National Mining Ass'n v. Kempthorne

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2007 Decided January 15, 2008

No. 06-5199

NATIONAL MINING ASSOCIATION,
APPELLANT

v.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 00cv00283)

Kirsten L. Nathanson argued the cause for appellant.
With her on the briefs were Harold P. Quinn, Jr. and Thomas
C. Means. Joseph M. Klise entered an appearance.

Blair M. Gardner was on the brief for amicus curiae
National Council of Coal Lessors, Inc. in support of appellant.

Kathryn E. Kovacs, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With her on the brief
was Robert Oakley, Attorney.

Walton D. Morris, Jr. was on the brief for appellee
Kentucky Resources Council, Inc.
 2
Before: GARLAND and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: The Secretary of the Interior has
interpreted the phrase “valid existing rights” in the Surface
Mining Control and Reclamation Act to foreclose surface
mining operations in sensitive areas. The National Mining
Association challenges this reading of the statute, but we
conclude that we must defer to the Secretary’s reasonable
interpretation of this ambiguous phrase.

I.

In 1977, Congress enacted the Surface Mining Control
and Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201 et seq.,
“to protect society and the environment from the adverse
effects of surface coal mining operations,” id. § 1202(a).
Section 522(b) of the SMCRA authorizes the Secretary of the
Interior (“Secretary”) to prohibit surface coal mining
operations on federal lands if he determines them to be
unsuitable for that purpose. Id. § 1272(b). Section 522(e) bans
outright surface mining in statutorily designated areas.1 Id.

1
Subject to certain exceptions, § 522(e) designates the following
areas: lands within the National Park System, the National Wildlife
Refuge Systems, the National System of Trails, the National
Wilderness Preservation System, the Wild and Scenic Rivers
System; federal lands within a national forest; areas that would
adversely affect public parks or places included in the National
Register of Historic Sites; areas within one hundred feet of the
outside right-of-way line of any public road; and areas within three
hundred feet of any occupied dwelling, public building, school,
church, community, or institutional building, or within one hundred
feet of a cemetery. See 30 U.S.C. § 1272(e).
 3
§ 1272(e). In this appeal, we are asked to determine how
Congress intended that ban to work. The relevant text of
§ 522(e) provides: “After August 3, 1977, and subject to valid
existing rights no surface coal mining operations except those
which exist on August 3, 1977, shall be permitted [in the
statutorily designated areas].” Id. (emphasis added).

Because one must show “valid existing rights” (“VER”)
to start a surface mining operation in a § 522(e) area, the
meaning of the phrase is critical. For decades, the Secretary
and the courts have wrestled with how best to understand
VER and determine what it protects. We need not recount this
history. Suffice it to say that VER has occasioned a spectrum
of agency interpretations, ranging from a relaxed “ownership
and authority” standard, which required only that the miner
show a property right in the coal, to a more exacting “all
permits” standard, which called for a showing that surface
mining licenses had been issued prior to the date § 522(e)
took effect. See Valid Existing Rights, 64 Fed. Reg. 70,766,
70,769–71 (Dec. 17, 1999) (recounting Secretary’s prior
definitions of VER).

In 1999, the Secretary and the Office of Surface Mining
Reclamation and Enforcement promulgated a rule through
notice-and-comment procedures offering yet another
interpretation of VER. Id. at 70,831–32 (codified at 30 C.F.R.
§ 761.5). This “1999 Rule,” as we will call it, was a setback
for parties hoping to conduct new surface mining operations
in § 522(e) areas. Under the 1999 Rule, a miner claiming
VER protection must satisfy two conditions. First, he must
produce a legally binding document that vested him with the
right to mine the land at the time it came under § 522(e).
Second, he must either prove that the owner of the land, by
the time it came under § 522(e), had made a good faith effort
to obtain all necessary permits for the mining, or else prove
 4
that the coal is immediately adjacent to a surface mining
operation in existence on August 3, 1977 and is needed to
ensure the economic viability of the mining operation as a
whole. The Secretary prefaced this interpretation of VER with
a 72-page preamble describing the agency’s long relationship
with the phrase, explaining the rationale for the latest
interpretation, and responding to objections raised during the
notice-and-comment period. Significantly, the preamble
acknowledges that the chosen VER interpretation protects
3,062 more acres than the least restrictive alternative and
predicts that “few persons will qualify for VER under this
standard.” Valid Existing Rights, 64 Fed. Reg. 70,766,
70,776, 70,778 (Dec. 17, 1999).

The National Mining Association (“NMA”), an industry
trade association with standing to bring suit on behalf of its
members under Hunt v. Washington State Apple Advertising
Commission, 432 U.S. 333, 343 (1977), challenged the 1999
Rule pursuant to 30 U.S.C. § 1276(a)(1) in the United States
District Court for the District of Columbia. The NMA argued
that the 1999 Rule’s interpretation of VER was too narrow
and shielded more land from surface mining than Congress
intended. On cross-motions for summary judgment, the
district court found the statute ambiguous, deferred to the
Secretary’s interpretation as reasonable, and entered judgment
for the Secretary. Nat’l Mining Ass’n v. Scarlett, 2006 WL
1194224, *6–9 (D.D.C. May 4, 2006) (citing Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
The NMA appeals. For the reasons set forth below, we affirm
the district court’s judgment.

II.

This case begins with an unusual question created by a
mistake in the language of the jurisdictional grant. We have
 5
an “independent obligation to determine whether subject-
matter jurisdiction exists,” Arbaugh v. Y & H Corp., 546 U.S.
500, 514 (2006), which we must discharge before ruling on
the merits, Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
127 S. Ct. 1184, 1191 (2007) (citing Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 93–102 (1998)).

The district court claimed jurisdiction under 30 U.S.C.
§ 1276(a)(1), which renders “[a]ny action by the Secretary
promulgating national rules or regulations . . . subject to
judicial review in the United States District Court for the
District of Columbia Circuit.” But there is no such court
within the federal judiciary. The judgment the NMA has
asked us to review comes from a court called “the United
States District Court for the District of Columbia.” See Act of
June 25, 1948, ch. 646, 62 Stat. 869, 875, 895 (codified at 28
U.S.C. §§ 88, 132(a)); see also In re Permanent Surface
Mining Regulation Litig., 653 F.2d 514, 516 n.2 (D.C. Cir.
1981) (noting § 1276(a)(1)’s error); In re Surface Mining
Regulation Litig., 627 F.2d 1346, 1350 n.1 (D.C. Cir. 1980)
(same). Because the inferior federal courts are “creatures of
statute,” Bath County v. Amy, 80 U.S. (13 Wall.) 244, 247–48
(1871), we must pay careful attention to the legislative texts
by which we are given authority. The district court did not
address the mistake in the statute, so the task falls to us.

“[C]ourts will not give independent meaning to a word
where it is apparent from the context of the act that the word
is surplusage,” Am. Radio Relay League, Inc. v. FCC, 617
F.2d 875, 879 (D.C. Cir. 1980) (citation and quotation marks
omitted), so we will excise the word “Circuit” from the text of
§ 1276(a)(1). We have no qualms about this erasure, for both
Congress’s intent and the error impeding it are plain to see.
See 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND
STATUTORY CONSTRUCTION § 47.37 (6th ed. 2002) (“A
 6
majority of the cases permit the elimination or disregarding of
words in a statute in order to carry out the legislative intent or
meaning.”); HENRY M. HART, JR. & ALBERT M. SACKS, THE
LEGAL PROCESS 1375 (William N. Eskridge, Jr. & Philip P.
Frickey eds., 1994) (“Courts on occasion can correct mistakes
. . . when it is completely clear from the context that a mistake
has been made.”). In § 1276(a), Congress subjected the
Secretary’s behavior to judicial review in various district
courts. It would be absurd to assume that Congress intended
to shield the Secretary’s national rules against judicial review
by granting jurisdiction to a nonexistent court. Cf. Ethyl Corp.
v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (en banc) (Leventhal,
J., concurring) (“Congress has been willing to delegate its
legislative powers broadly and courts have upheld such
delegation because there is court review to assure that the
agency exercises the delegated power within statutory limits
. . . .”). We read § 1276(a)(1) as granting jurisdiction to the
United States District Court for the District of Columbia in
the present case, notwithstanding Congress’s erroneous
inclusion of the word “Circuit.” Our jurisdiction to review the
final decision of that court comes from 28 U.S.C. § 1291.

III.

We review de novo the district court’s grant of summary
judgment. Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 756
(D.C. Cir. 2003). Because Congress has charged the Secretary
with implementing the SMCRA, we review the agency’s
interpretation of the statutory phrase “valid existing rights”
under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See Citizens Coal Council
v. Norton, 330 F.3d 478, 481 (D.C. Cir. 2003) (applying
Chevron to Secretary’s interpretation of the SMCRA). Where
the statute is ambiguous, we defer to the agency’s reasonable
interpretation of its meaning. By contrast, a clear expression
 7
of congressional intent will bind agency and court alike.
Chevron, 467 U.S. at 842–43.

The NMA urges that Congress inserted VER in § 522(e)
to protect mineral owners’ property rights. As the NMA tells
it, VER allows surface mining by those with a property right
to mine coal. Were this true, the Secretary’s restrictive
interpretation of VER in the 1999 Rule would violate a
congressional directive, and we would be required to set it
aside. But we do not read the statute so narrowly. Since 1977,
VER has been interpreted by five different Administrations,
each of which has found within its borders the room to
establish a preferred policy. The NMA takes this history to
mean that the agency’s current policy is entitled to less
deference because it has changed over time, but the opposite
is true. That Congress presented so wide a range of plausible
interpretations to an agency with rulemaking authority shows
a delegation to the executive branch of the power to make
reasonable adjustments to the nation’s surface mining policy.

A.

Our Chevron analysis begins with asking whether
Congress has delegated authority to an agency by leaving a
statutory gap for the agency to fill. 467 U.S. at 843–44 (citing
Morton v. Ruiz, 415 U.S. 199, 231 (1974)). Our reading of the
SMCRA’s language convinces us that VER is an ambiguous
phrase.2 We have in the past determined that the phrase is

2
We have noted that the legislative history of the SMCRA does not
illuminate the meaning of VER. See Nat’l Wildlife Fed’n v. Hodel,
839 F.2d 694, 749 (D.C. Cir. 1988); cf. Bank One Chi., N.A. v.
Midwest Bank & Trust Co., 516 U.S. 264, 283 (1996) (Scalia, J.,
concurring) (“The text’s the thing. We should therefore ignore
drafting history without discussing it, instead of after discussing
it.”).
 8
subject to multiple and divergent interpretations. See Nat’l
Wildlife Fed’n v. Hodel, 839 F.2d 694, 748–51 (D.C. Cir.
1988) (noting the ambiguity inherent in VER and deferring to
the Secretary’s reasonable interpretation of the phrase as
encompassing so-called “continually-created valid existing
rights”).

The major source of VER’s ambiguity is the word
“rights.” The NMA, reaching for its dictionary, notes that the
word “right” could be taken to mean “property right.” See
Appellant’s Br. at 34 (interpreting “rights” to mean “ ‘an
interest or title in an object of property’ ”) (quoting BLACK’S
LAW DICTIONARY 1324 (6th ed. 1990)); see also BLACK’S
LAW DICTIONARY 1347 (8th ed. 2004) (defining “right” as,
inter alia, an “interest, claim, or ownership that one has in
tangible or intangible property”). But according to the same
dictionary on which the NMA relies, this is not the only
meaning the word will bear. BLACK’S LAW DICTIONARY 1324
(6th ed. 1990) (defining “right” as, inter alia, “[a] legally
enforceable claim of one person against another, that the other
shall do a given act, or shall not do a given act”); see also
BLACK’S LAW DICTIONARY 1347 (8th ed. 2004) (defining
“right” as, inter alia, “[a] legally enforceable claim that
another will do or will not do a given act”). In fact, this
definition cuts against the NMA’s proposed interpretation of
VER because it is not tied in all circumstances to property.

Just as “right” can function as a proxy for property rights,
it will also do service more generally. See, e.g., id.
(“[s]omething that is due to a person by just claim, legal
guarantee, or moral principle”); 13 THE OXFORD ENGLISH
DICTIONARY 923 (2d ed. 1989) (“[j]ustifiable claim, on moral
or legal grounds, to have or obtain something, or to act in a
certain way”); WEBSTER’S NEW INTERNATIONAL DICTIONARY
2147 (2d ed. 1952) (“[t]hat to which one has a just claim”).
 9
Under Chevron, we ask “whether Congress has directly
spoken to the precise question at issue.” 467 U.S. at 842. By
using a word with multiple and often vague meanings, it is
hard for us to conclude that Congress has done that here. The
word “right,” instead of answering a question, unhelpfully
asks another one: To what is a person legally entitled?
Similarly, “valid” could mean “[l]egally sufficient,” BLACK’S
LAW DICTIONARY 1586 (8th ed. 2004), which is equally
unhelpful because it requires yet another question: Under law,
what makes a miner’s rights sufficient? The dictionary
counsels in favor of more deference to the agency, not less.
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 989 (2005) (“[W]here a statute’s plain
terms admit of two or more reasonable ordinary usages, the
[agency’s] choice of one of them is entitled to deference.”);
Nat’l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S.
407, 418 (1992) (“The existence of alternative dictionary
definitions of the word ‘required,’ each making some sense
under the statute, itself indicates that the statute is open to
interpretation.”) (citation omitted); AFL-CIO v. FEC, 333
F.3d 168, 174 (D.C. Cir. 2003) (“[T]he fact that the provision
can support two plausible interpretations renders it ambiguous
for purposes of Chevron analysis.”) (citation omitted).

VER could be read, as the NMA suggests, as protecting
“valid existing property rights.” But it could also encompass a
narrower protection, as in the 1999 Rule. Nothing in § 522(e)
suggests Congress intended to enact the former understanding
over the latter. This case is thus the reverse of Friends of the
Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006). In Friends
of the Earth, we found that Congress’s use of the word
“daily” to modify the phrase “total maximum loads” removed
any ambiguity that otherwise existed. See 446 F.3d at 144
(“[B]y providing for the establishment of ‘total maximum
loads,’ Congress could have left a gap for EPA to fill. Instead,
 10
Congress specified ‘total maximum daily loads.’ ”). In
§ 522(e), by contrast, Congress enacted the ambiguous “valid
existing rights” instead of the more precise “valid existing
property rights.” If VER operates as a “term of art,” as the
NMA suggests, it is as a tool by which Congress delegates
policymaking authority through ambiguity.3 See, e.g.,
Seldovia Native Ass’n v. Lujan, 904 F.2d 1335, 1345 (9th Cir.
1990) (noting the Secretary’s interpretation of VER in 43
U.S.C. §§ 1701–1782); Alekganik Natives Ltd. v. United
States, 806 F.2d 924, 926 (9th Cir. 1986) (noting the
Secretary’s interpretation of VER in 43 U.S.C. § 1610(a)(1));
United States v. Garfield County, 122 F. Supp. 2d 1201,
1235–36 (D. Utah 2000) (noting Park Service’s interpretation
of VER in 16 U.S.C. § 273(a)); cf. Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 COLUM. L. REV.
527, 545 (1947) (noting “a recent cartoon in which a senator
tells his colleagues ‘I admit this new bill is too complicated to
understand. We’ll just have to pass it to find out what it
means.’ ”).
3
Academic commentary supports our reading of VER. We note
that the Journal of Mineral Law & Policy, a publication of the
University of Kentucky College of Law, dedicated an entire issue to
analysis of VER as used in the SMCRA. See generally Valid
Existing Rights Symposium, 5 J. MIN. L. & POL’Y 381 et seq.
(1990). Despite devoting 375 pages to the topic, the symposium
participants reached no consensus on VER’s meaning. As stated by
Professor Laitos, in whom the NMA’s briefing places great faith:
“Typically, Congress never lists what interests it means to include
within the ‘valid existing rights’ phrase. The task of interpretation
thus falls on the executive branch (i.e., the Department of Interior)
or the courts.” Jan G. Laitos & Richard A. Westfall, Government
Interference with Private Interests in Public Resources, 11 HARV.
ENVTL. L. REV. 1, 19 (1987). Of course, we cannot outsource the
task of statutory interpretation to the professoriate, but we find it
illuminating that scholars with expertise in this area have been
similarly unable to distill a single, clear meaning from VER.
 11

Of course, not every statutory ambiguity gives rise to
agency prerogative. See Gonzales v. Oregon, 546 U.S. 243,
258 (2006); Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d
640, 645 (D.C. Cir. 1998). But where Congress has indicated
that it “would expect the agency to be able to speak with the
force of law when it addresses ambiguity in the statute or fills
a space in the enacted law,” United States v. Mead Corp., 533
U.S. 218, 229 (2001), its decision to leave “a gap for an
agency to fill . . . is a delegation of authority to the agency to
give meaning to a specific provision of the statute by
regulation,” Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir.
2001). So it is in this case. See 30 U.S.C. § 1211(c)(2)
(empowering the Secretary to “publish and promulgate such
rules and regulations as may be necessary to carry out the
purposes and provisions of [the SMCRA]”); Mead, 533 U.S.
at 229 (“We have recognized a very good indicator of
delegation meriting Chevron treatment in express
congressional authorizations to engage in the process of
rulemaking or adjudication that produces regulations or
rulings for which deference is claimed.”). It remains for us to
determine whether the Secretary served as Congress’s faithful
agent in giving meaning to VER’s ambiguities.

B.

Having satisfied ourselves that VER is ambiguous, we
defer to the Secretary’s interpretation of the phrase if it “is
based on a permissible construction of the statute.” Chevron,
467 U.S. at 843. All we ask of the agency is a reasonable
interpretation. See Vonage Holdings Corp. v. FCC, 489 F.3d
1232, 1240 (D.C. Cir. 2007); Citizens Coal Council v. Norton,
330 F.3d 478, 483 (D.C. Cir. 2003). By “consider[ing] the
matter in a detailed and reasoned fashion” and demonstrating
in its 72-page preamble that “the interpretation is arguably
 12
consistent with the underlying statutory scheme in a
substantive sense,” we conclude that the Secretary has
adopted a reasonable interpretation of the statute. Kennecott
Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191,
1206 (D.C. Cir. 1996).4

The 1999 Rule remains true to the authority delegated to
the Secretary in the SMCRA by protecting against the
harmful effects of surface mining that Congress sought to
ameliorate. Providing this protection is the primary aim of the
statute. See 30 U.S.C. § 1201(e) (declaring that regulation of
surface coal mining “is an appropriate and necessary means to
minimize so far as practicable the adverse social, economic,
and environmental effects of such mining operations”); id.
§ 1201(c), (k) (warning of deleterious effects of surface coal
mining); id. § 1202(a) (stating that a purpose of the SMCRA
is to “establish a nationwide program to protect society and
the environment from the adverse effects of surface coal
mining operations”); id. § 1202(f) (stating that a purpose of
the SMCRA is to “strike a balance between protection of the
environment . . . and the Nation’s need for coal as an essential
source of energy”). Therefore it is not surprising that the
Secretary has promulgated an interpretive rule that cuts
against the interests of some miners.

The NMA’s suggestion that the SMCRA effected robust
protection of miners’ property rights is belied by the way

4
Given the overlap between step-two Chevron review and the
arbitrary-and-capricious review called for by § 1276(a)(1) and the
APA, see Shays v. FEC, 414 F.3d 76, 96–97 (D.C. Cir. 2005)
(collecting cases), the contention that the 1999 Rule violates
§ 1276(a)(1) fails for similar reasons. In the preamble to the 1999
Rule, the Secretary “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
 13
Congress used the word “property” in that statute. Of the
twenty-nine instances in which “property” appears, only one
refers to protecting the property rights of subsurface owners
of the mineral estate. Id. § 1304(g) (concerning coal owned by
the United States). Many uses of “property” concern the
protection of surface or adjacent property owners against the
harmful effects of surface mining, id. §§ 1201(c),
1233(a)(1)(A), 1239(a), 1253(a)(15)(C), 1253(a)(17), 1257(f),
1269(a), 1270(f), 1272(a)(3)(D), 1307(b), and several
mentions of “property” run counter to miners’ property rights,
in that they authorize government entry onto mined property
to assess and remedy environmental degradation caused by
strip mining, id. §§ 1237(a), 1237(b), 1240(b).

Save for repeating its argument that VER is unambiguous
and accusing the Secretary of “flip-flopping,” Appellant’s Br.
at 53, the NMA provides little resistance on this front.5 With
the exception of the constitutional avoidance argument,
discussed next, the NMA offers no basis for finding the
Secretary’s interpretation unreasonable. If that argument fails,
we must accord Chevron deference to the 1999 Rule. See
Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 299 (D.C. Cir.
2003) (“Here, however, [petitioner] advances no additional
argument beyond those already discussed as part of step one,
and so we have no basis for finding the Commission’s
interpretation unreasonable. In any event, the language of [the
statute] plainly admits of the Commission’s interpretation,
and it therefore is a permissible construction of the statute.”).

The NMA asserts that the 1999 Rule runs afoul of both
the Due Process and Takings Clauses of the Fifth

5
The NMA’s “flip-flopping” point ignores the agency’s obligation
to “consider varying interpretations and the wisdom of its policy on
a continuing basis,” Chevron, 467 U.S. at 863–64.
 14
Amendment, an argument raised to invoke the canon of
constitutional avoidance. Because the judiciary must rightly
presume that Congress acts consistent with its duty to uphold
the Constitution, courts make every effort to construe statutes
so as to find their constitutional foundations and thus avoid
needless constitutional confrontations. See Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988); Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J.,
concurring). This canon of constitutional avoidance trumps
Chevron deference, see DeBartolo, 485 U.S. at 574–77, and
we will not submit to an agency’s interpretation of a statute if
it “presents serious constitutional difficulties,” Chamber of
Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995). But we
do not abandon Chevron deference at the mere mention of a
possible constitutional problem; the argument must be
serious. See Republican Nat’l Comm. v. FEC, 76 F.3d 400,
409 (D.C. Cir. 1996). The NMA’s arguments are not.

Though its briefs are unclear, the NMA appears to argue
that its procedural due process rights were violated because
the 1999 Rule created no mechanism by which miners could
comply with the good-faith permitting requirement had they
not already done so by August 3, 1977. The NMA argues that
United States v. Locke, 471 U.S. 84, 108 (1985), and Texaco,
Inc. v. Short, 454 U.S. 516, 531–32 (1982), require such a
mechanism. But those cases dealt with a different type of
legislative determination than we have here. In both Locke
and Texaco, a legislature addressed a dispute over dormant
mines by creating a process that would allow miners to
protect their claims. The issue in those cases was whether
claimants had been improperly denied their rights to make
their claims. In § 522(e), Congress chose a different means to
address a problem: It prohibited new surface mining in
sensitive areas for all but those who could show a valid
 15
existing right to mine the land. Congress created no process
by which to abide, no regulatory regime with which to
comply. It simply declared surface mining off limits for those
who had no valid existing rights. Congress created no process
that the NMA can successfully argue it was denied.

The NMA also argues that the 1999 Rule precludes
Chevron deference by working a taking of subsurface coal
interests. A taking, however, is only unconstitutional if the
government fails to pay just compensation, and the Tucker
Act provides for such a remedy. See 28 U.S.C. § 1491(a).
Miners can pursue their takings claims in the United States
Court of Federal Claims (“Claims Court”). Given this
protection, the NMA’s takings challenge raises no serious
question about the 1999 Rule that would preclude Chevron
deference. See United States v. Riverside Bayview Homes,
474 U.S. 121, 127–28 (1985); Ry. Labor Executives’ Ass’n v.
United States, 987 F.2d 806, 816 (D.C. Cir. 1993) (per
curiam).

This is not to say that the canon of constitutional
avoidance can be ignored with respect to every argument
sounding in the Takings Clause. The Supreme Court has
recognized that the Claims Court is not a proper venue if a
statute creates “an identifiable class of cases in which
application of [the] statute will necessarily constitute a
taking.” Riverside Bayview, 474 U.S. at 128 n.5 (construing
United States v. Sec. Indus. Bank, 459 U.S. 70, 78 (1982)).
Likewise, we have refused Chevron deference to an agency
interpretation that created an “identifiable class” of takings
victims. See Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441, 1445
(D.C. Cir. 1994) (noting that “Chevron deference to agency
action that creates a broad class of takings claims,
compensable in the Court of Claims, would allow agencies to
use statutory silence or ambiguity to expose the Treasury to
 16
liability both massive and unforeseen,” which would impinge
Article I authority). But the NMA has shown no “identifiable
class” of miners whose takings claims would expose the
Treasury to such liability. At oral argument, the NMA did not
claim that the government would be on the hook for a
“massive and unforeseen” sum, paid out to frustrated miners
as just compensation. See Oral Arg. Recording at 14:45–
17:52. The record is devoid of evidence suggesting it is so.
Given this implicit concession that the 1999 Rule will have
relatively insignificant takings implications that can be readily
addressed in the Claims Court, there is no serious
constitutional problem to be avoided. “[T]he avoidance canon
is not applicable when the statute or regulation would effect a
taking, if at all, only in certain situations.” Nat’l Mining Ass’n
v. Babbitt, 172 F.3d 906, 917 (D.C. Cir. 1999). The usual
Chevron analysis is therefore applied to the 1999 Rule, which
results in our deferring to the Secretary’s reasonable
interpretation of an ambiguous statutory term.

IV.

The district court properly accorded Chevron deference
to the Secretary’s interpretative rule. The judgment is

Affirmed.