Holmes Limestone Co. v. Cecil B. Andrus

MERRITT, Circuit Judge,

concurring in the judgment.

I agree that the district court has jurisdiction in this case to review the regulation defining the term “cemetery,” 30 C.F.R. § 761.5 , promulgated by the Secretary of the Interior. I disagree, however, with the reasoning employed in the majority opinion.

The jurisdictional question is solely one of legislative intent, requiring an interpretation of the statute in which Congress provided for judicial review of rules promulgated under the 1977 Surface Mining Act:

Any action of the Secretary to approve or disapprove a State program or to prepare or promulgate a Federal program pursuant to this chapter shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is at issue. Any action by the Secretary promulgating national rules or regulations including standards pursuant to sections 1251, 1265, 1266, and 1273 of this title shall be subject to judicial review in the United States District Court for the District of Columbia Circuit. Any other action constituting rulemaking by the Secretary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is located. Any 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. A petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day. Any such petition may be made by any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary.

30 U.S.C. § 1276 (a)(1). The court below held that the challenged regulation is a “national” regulation and interpreted the grant of review of such regulations in the District Court for the District of Columbia to be exclusive. The court concluded that it was foreclosed by the statute from addressing Holmes Limestone’s argument that the regulation is arbitrary and capricious. The government agrees with the district court’s reading of the statute, and argues that the statute requires that this challenge be brought within sixty days of the promulga *740 tion of the regulation, a period that expired prior to commencement of this action. The government also argues that under the last sentence of 30 U.S.C. § 1276 (a)(1), challenges to regulations may be brought only by parties who participated in the rulemak-ing process. Thus the government’s position would not merely require parties in Holmes Limestone’s position to litigate their claims in an inconvenient forum, but would altogether foreclose the availability of judicial relief. The government states that its interpretation reflects the Congressional intent that the propriety of a national regulation be determined in a single proceeding in a single forum within sixty days of its promulgation. This would guarantee that the important policies of the Act would be implemented in an efficient, orderly fashion. A contrary interpretation, the government argues, would “jeopardize the entire surface mining regulatory program” (Appellee’s Brief at 15), because of the disruptive effects of constant litigation in the various courts throughout the country and the possibility of varying and contradictory interpretations rendered by different reviewing courts.

The government’s policy argument has some force. But it conflicts with another policy that is paramount, namely the policy in favor of granting parties access to federal courts to resolve controversies arising from final administrative actions. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 140 , 87 S.Ct. 1507, 1511 , 18 L.Ed.2d 681 (1967) (“judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress”); Rusk v. Cort, 369 U.S. 367, 379-80 , 82 S.Ct. 787, 794 , 7 L.Ed.2d 809 (1962) (judicial review under the Administrative Procedure Act will not be foreclosed “in the absence of clear and convincing evidence that Congress so intended”).

The government argues that the provisions in § 1276(a)(1) for review of national rules in the District Court for the District of Columbia and within sixty days of their promulgation provide evidence of a Congressional intent to restrict review. Holmes Limestone responds that the Conference Committee’s deletion of the word “only” in the sentence referring to the District of Columbia court and the absence of any other language expressly limiting review reveal a Congressional intent to the contrary. It argues that Congress meant by this statute to extend jurisdiction to the District Court for the District of Columbia but not to cut off other avenues for relief.

The language of § 1276(a)(1) is unclear, and the legislative history is inconclusive on the question of whether Congress intended the prescribed methods of review to be exclusive. Two considerations lead me to interpret the statute against such exclusivity. First, in other statutory schemes Congress has clearly limited judicial review in a fashion that demonstrates that it knows how to express such an intent when it wishes. This was the situation in the statutes involved in the cases relied upon by the lower court and the government. Yakus v. United States, 321 U.S. 414 , 64 S.Ct. 660 , 88 L.Ed. 834 (1944) (Emergency Price Control Act); Adamo Wrecking Co. v. United States, 434 U.S. 275 , 98 S.Ct. 566 , 54 L.Ed.2d 538 (1978) (Clean Air Act). In comparison, the absence of any such express language in § 1276(a)(1) evidences Congressional intent that the review provisions not be exclusive.

Although positive intent cannot always be construed from Congressional silence, that interpretation works to the same end in this case as does the second consideration, which is the policy discussed above against foreclosing channels of judicial review. In the present case the government’s construction of the statutory language would work a grave hardship upon small and medium-sized firms throughout the nation that lack the resources to participate in, or even remain abreast of, the manifold governmental activities that may someday affect their operations. As Justice Powell stated in Adamo Wrecking, supra, “It is totally unrealistic to assume that more than a fraction of persons and entities affected by a regulation — especially small contractors scattered across the country — would *741 have knowledge of its promulgation or familiarity with or access to the Federal Register.” 434 U.S. at 290 , 97 S.Ct. at 575 (Powell, J., concurring). The Supreme Court has upheld the constitutionality of express statutory restrictions upon judicial review of agency action. Nonetheless, the hardships resulting from restrictions upon review, borne by countless parties merely because they lack funds or political acumen, persuade me that in the absence of express provisions ambiguous statutory language should not be read to foreclose judicial relief.

I agree, therefore, with the majority’s conclusion that the district court has jurisdiction to review Holmes Limestone’s challenge of the regulation defining the term “cemetery.” I express no opinion at this time on the merits of the claim, and I believe the majority improperly indulges in a discussion of the merits — even though it confesses that the issue is to be properly entertained only by the district court upon remand — that is unnecessary for a resolution of the case before us and that, therefore, can be read as nothing more than a strongly-worded personal opinion.

On the other hand, the majority fails to address the constitutional claims raised by Holmes Limestone, which are before us upon appeal and should be considered for a proper resolution of this case. Holmes Limestone argues that even if the regulation is not arbitrary and capricious, its application under 30 U.S.C. § 1272 (e)(5) to forbid mining within one hundred feet of a private burial plot works an uncompensated taking of property and a denial of equal protection and is in excess of the federal government’s authority under the commerce clause. The court below rejected these claims. I agree with the district court that the regulation as applied does not result in a taking in violation of the fifth amendment. I also think there is no merit to the equal protection claim. There is some question whether the commerce clause question was properly raised below. Even if it was, however, Holmes Limestone’s position appears to have been rejected in two recent Supreme Court opinions that upheld various sections of the Act against similar challenges. Hodel v. Virginia Surface Mining and Reclamation Ass’n,-U.S.-, 101 S.Ct. 2352 , 69 L.Ed.2d 1 (1981); Hodel v. Indiana, -U.S. -, 101 S.Ct. 2376 , 69 L.Ed.2d 40 (1981).