Record and brief — James G. Watt, Secretary of the Interior v. Holmes Limestone Co.

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UONNed

— . — 5 N

II a> 2 * Office - Supreme Court, U.S.

FILED

No.

In the Supreme Court of the Uuſted?

OCTOBER TERM, 1981

JAMES G. WATT, SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

HOLMES LIMESTONE Co., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REX E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

Harriet S. SHAPIRO

Assistant to the Solicitor General

Dirk D. SNEL

LAURA FROSSARD

Attorneys

Department of Justice

Washington, D.C. 20580

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the judicial review provision in Section

526 (a) (1) of the Surface Mining Control and Recla-

mation Act of 1977, 30 U.S.C. (Supp. ITI) 1276(a)

(1), permits a suit challenging national regulations

issued under the Act to be brought only in the United

States District Court for the District of Columbia.

2. Whether such a suit may be brought more than

sixty days after the promulgation of the challenged

regulation.“

»The plaintiffs below were Holmes Limestone Co. and

the Ohio Mining and Reclamation Association. Defendants

below were Cecil B. Andrus, Secretary of the Interior, the

United States Department of the Interior, and Walter Heine.

Director, Office of Surface Mining Reclamation and Enforce-

ment, United States Department of Interior. Because Secre-

tary Watt is the successor to Secretary Andrus and James R.

Harris is the successor to Walter Heine, we have substituted

Secretary Watt and James R. Harris as the federal parties in

this case, pursuant to Rule 40.3 of the Rules of this Court.

(1)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction —. —— NR 1

Statutes involved 2

Statement ; es 3

Reasons for granting the petitio nnn 8

| a EET ERE eeer es eee en nee 15

Appendix A ( 1a

TTT 23a

IE / x 25a

r 26a

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136......7, 12, 13

Adamo Wrecking Co. v. United States, 434 U.S.

11 ̃— ͤ— eo 14. 15

Gardner v. Alabama Department of Pensions & Se-

curity, 385 F.2d 804, cert. denied, 389 U.S. 1046.. 11

Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, cert.

.. 11

Hodel v. Indiana, 452 U.S. 314 11

Hodel v. Virginia Surface Mining & Reclamation

n 4, 8, 11

National Coal Operators Association v. Kleppe, 423

c 12

Permanent Surface Mining Regulation Litigation,

e eT ele 8-9

Permanent Surface Mining Regulation Litigation,

„ ii ccrsccpnntnonensmnsiantinnctgntinapentionts 9

Reading Anthracite v. Office of Surface Mining

Reclamation & Enforcement, No. 80-0667 (Oct.

RES TELE . ON ee, AO 00

Cases—Continued Page

Surface Mining Regulation Litigation, In re, 456

F. Supp. 1301, rev'd in part, 627 F.2d 1346 8,14

Trailmobile Co. v. Whirls, 331 U.S. 40 -.................. 12

Tuy Valiey Recovery Center v. Watt, No. 81-2096

(Feb. 4, 1982) 14

Union Carbide Corp. v. Andrus, 13 E. R. C. 1481...... 9

Whitney National Bank v. Bank of New Orleans,

| eae nn enc ee ee 11

Yakus v. United States, 321 U.S. 414444 14, 15

Constitution, statutes and regulations:

United States Constitution, Article I, Section 8 15

Clean Air Act, 42 U.S.C. (& Supp. III) 1857 et

seg. :

I — acntissctiensianeetieibieninnns 15

42 U.S.C. (Supp. III) 7607 (b) (i) 13

Consumer Product Safety Act, 15 U.S.C. 2060 14

Federal Water Pollution Control Act, 33 U.S.C.

D 14

Securities Exchange Act of 1934, 15 U.S.C. 78. 14

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. (Supp. III) 1201 et seg 4, 8, 15

Section 101 (g), 30 U.S.C. (Supp. III) 1201

— — — 8

Section 502 (c), 30 USC. (Supp. III) 1252

— A —— sii 4

Section 502 (e), 30 U.S.C. (Supp. III) 1252

T —— —————— 4,6

Section 503, 30 U.S.C. (Supp. III) 1253 5

Section 522 (e), 30 U.S.C. (Supp. Ill) 1272

PEER Ae nore NE ere 3,4

Section 522(e) (5), 30 U.S.C. (Supp. III) 1272

(e) (5) 3, 4, 5, 6, 11

Section 526 (a) (1), 30 U.S.C. (Supp. III) 1276

— —— 2, 3, 6, 7, 9, 10, 11, 12, 13, 14

Voting Rights Act of 1965, 42 U.S.C. 19732 13

A” EE HSS amare 13

30 C. F. R.:

r 5

rr 6, 13

Section 761.5 (d) 3. 5

Constitution, statutes and regulations—Continued Page

F BS fe 5

44 Fed. Reg. (1979):

p. 13316 — — 5

EE Oe 5

c 5

45 Fed. Reg. 64962 (1980) 4

Miscellaneous:

118 Cong. Rec. 35048 (1972 11

%% 11

H. R. 2, 95th Cong., Ist Sess. (1977)7 12

H.R. Rep. No. 95-218, 95th Cong., Ist Sess. (1977) 10, 12

H.R. Rep. No. 95-493, 95th Cong., Ist Sess. (1977) 12

Mining and Mineral Research Center: Hearings

Before the Subcomm. on Mines and Mining of

the House Comm. on Interior and Insular Af-

fairs, 92d Cong., Ist Sess. (19717777 10-11

Regulation on Surface Mining, Part I: Hearings

Before the Subcomm. on the Environment and

the Subcomm., on Mines and Mining of the House

Comm. on Interior and Insular Affairs, 93d

r .. 11

S. 7, 95th Cong., Ist Sess. (19777 12

S. Rep. No. 95-128, 95th Cong., Ist Sess. (1977). 10, 12

Webster’s Seventh New Collegiate Dictionary

(1970) 10

In the Supreme Court of the United States

OCTOBER TERM, 1981

No.

JAMES G. WATT, SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

HOLMES LIMESTONE Co., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the Secretary of

the Interior, the United States Department of the

Interior, and the Director of the Office of Surface

Mining Reclamation and Enforcement of the United

States Department of the Interior, petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-22a) is reported at 655 F. 2d 732. The opinion of

the district court (App. D, infra, 26a-36a) is unre-

ported.

JURISDICTION

The judgment of the court of appeals was entered

on August 6, 1981 (App. B, infra, 23a-24a), and

(1)

rehearing was denied on September 29, 1981 (App.

C, infra, 25a) On December 17, 1981, Justice O’Con-

nor extended the time for filing a petition for a writ

of certiorari to and including February 26, 1982. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES INVOLVED

Section 526(a)(1) of the Surface Mining Control

and Reclamation Act of 1977, 30 U.S.C. (Supp. III)

1276(a) (1), provides:

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 in-

cluding 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 Sec-

retary 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.

Section 522(e) of the Act, 30 U.S.C. (Supp. III)

1272(e) provides in pertinent part:

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—

* * * * *

(5) within three hundred feet from any

occupied dwelling, unless waived by the

owner thereof, nor within three hundred feet

of any public building, school, church, com-

munity, or institutional building, public

park, or within one hundred feet of a ceme-

tery.

Section 761.5(d) (30 C.F.R.) provides in pertinent

part:

For the purposes of this part:

* . * * ~

Cemetery means any area of land where

human bodies are interred.

STATEMENT

This action was brought by Holmes Limestone

Co. and the Ohio Mining and Reclamation Asso-

ciation to challenge a regulation defining the term

“cemetery” as used in Section 522 (e) (5) of the Sur-

face Mining Control and Reclamation Act of 1977, 30

U.S.C. (Supp. III) 1272(e)(5). The United States

District Court for the Northern District of Ohio dis-

missed the complaint for lack of jurisdiction, holding

that the judicial review provision, Section 526 (a) (1)

of the Act, 30 U.S.C. (Supp. III) 1276 (a) (1), per-

mitted such challenges to national regulations to be

brought only in the United States Distriet Court for

the Distriet of Columbia. The United States Court of

Appeals for the Sixth Cireuit reversed, and remanded

the case for consideration of the merits.

1. The Surface Mining Control and Reclamation

Act of 1977 (Surface Mining Act), 30 U.S.C. (Supp.

III) 1201 et seq., prohibits surface mining on certain

federal lands, and within specified distances of roads,

dwellings and certain other buildings, or parks (30

U.S.C. (Supp. III) 1272(e)). It also prohibits sur-

face mining within 100 feet of a cemetery (30 U.S.C.

(Supp. III) 1272(e)(5)). In areas where surface

mining is permitted, the Act establishes performance

standards to protect the environment, in a two-stage

program. See Hodel v. Virginia Surface Mining &

Reclamation Association, 452 U.S. 264 (1981). In

the interim program stage, the Secretary of the In-

terior, acting through the Office of Surface Mining

Reclamation and Enforcement (OSM), is the primary

enforcement authority (Section 502(e) of the Act,

30 U.S.C. (Supp. III) 1252 (e)). A state may con-

tinue to regulate surface mining in this stage, so

long as the state issues mining permits that are con-

sistent with federal interim program regulations,

which implement certain performance standards

specified in the Act (Section 502 (e), 30 U.S.C. (Supp.

III) 1252 (e)). In the second stage, all the Act’s per-

formance standards must be enforced, either by the

state, pursuant to a state program approved by OSM,

or by OSM pursuant to a program implemented for a

state without an approved program.

1Qhio is operating under the interim program; its state

program has not yet been approved. See 45 Fed. Reg. 64962

(1980).

In order to implement the Act, OSM first promul-

gated interim program regulations on Decembe: 13,

1977 (42 Fed. Reg. 62693). These regulations defined

the applicable performance standards and specified

procedures for their enforcement and for reimbursing

the states for certain regulatory efforts in connection

with the interim program. Thereafter, on March 13,

1979, OSM promulgated the complete regulatory pro-

gram for the Surface Mining Act (44 Fed. Reg.

14902). The original interim program regulations

were simply incorporated by reference as subchapter

B. The newly promulgated regulations included per-

manent program regulations (subchapter C), defin-

ing the procedures by which a state may obtain ap-

proval of a state program to regulate surface mining

operations within its boundaries, and identifying the

performance standards that must be enforced by an

approved state program (see Section 503 of the Act,

30 U.S.C. (Supp. III) 1253). The new regulations

also identified, in subchapter F (44 Fed. Reg. 14903

(1979)), areas unsuitable for surface mining, in-

cluding (in Part 761) areas identified by Congress

in 30 U.S.C. (Supp. III) 1272(e) (5). As part of sub-

chapter F, a cemetery is defined as any area of land

where human bodies are interred” (30 C.F.R. 761.5

(d)). In the March 13, 1979, filing, the permanent

program regulations in subchapter C indicated that

the subchapter F regulations apply to the permanent

program (44 Fed. Reg. 15316; 30 C. F. R. 701.1(3)).

On December 31, 1979, a conforming amendment pro-

vided that subchapter F also applies to the interim

program (44 Fed. Reg. 77445).

2. Respondent Holmes Limestone entered into coal

mining leases with two Amish farmers in 1979. The

Amish bury their dead in family burial plots on their

own farms. Both farmers agreed that Holmes could

surface mine up to 25 feet from the burial plots. Al-

though the Ohio regulations, like the Act, prohibit

surface mining within 100 feet of a cemetery, the

Franklin County Court of Common Pleas determined

that private burial plots were not cemeteries, and

Holmes was issued state permits to mine to within 25

feet from the burial plots (App. A, infra, 8a-10a).’

Recognizing that this state permit was inconsistent

with the OSM regulations, respondents Holmes Lime-

stone and the Ohio Mining and Reclamation Associa-

tion commenced this suit on June 6, 1980, in the

United States District Court for the Northern Dis-

trict of Ohio, seeking a declaratory judgment that 30

C.F.R. 761.5 is arbitrary and inconsistent with the

Act in including private burial plots within the defini-

tion of cemetery. They also claimed that, as applied,

the Act effects an unconstitutional taking of property

without just compensation and sought to enjoin en-

forcement against them of 30 U.S.C. (Supp. III) 1272

(e) (5) (App. A, infra, 11la).*

The district court found that it lacked jurisdiction

to review the challenged regulation because the judi-

cial review provision (Section 526(a)(1) of the Act,

30 U.S.C. (Supp. III) 1276 (a) (1)), limits review of

2 These permits were not stayed, and respondent has com-

pleted its mining operations on these two plots. The issue is

not moot, however, because the company also has 4 number of

additional coal mining leases with other Amish farmers who

are willing to permit mining to within 25 feet of their burial

plots. (App. A, infra, 16a).

Five days later, pursuant to its primary enforcement re-

sponsibilities under Section 502(e) of the Act, 30 U.S.C.

(Supp. III) 1252(e), OSM issued a notice of violation to

respondent Holmes Limestone for mining within 100 feet of

the cemetery on one of the plots (App. A, infra, IIa).

national regulations to the United States District

Court for the District of Columbia (App. D, infra,

34a).

3. The United States Court of Appeals for the

Sixth Circuit reversed. The court held that Section

526(a)(1) permits review of challenges to national

regulations in courts other than the United States

District Court for the District of Columbia, reason-

ing that, while the statute provides that “other ac-

tions” may be brought “only” in the district court

where the mining operation is located, in the final

version of the bill the qualifying word “only” was

deleted from the phrase that provides for review of

national regulations in the District of Columbia (App.

A, infra, 18a). The court also found that the Secre-

tary’s interpretation of Section 526(a)(1), which

limits review to one district court, is inconsistent with

the presumption of judicial review of administrative

action, as expressed by this Court in Abbott Labora-

tories v. Gardner, 387 U.S. 136 (1967) (App. A,

infra, 13a-14a).

The court also concluded that there were “serious

questions about the propriety” of the 60-day limita-

tion upon the filing of petitions for judicial review of

rulemaking actions.’ The court observed that enforce-

ment of the limitation should be eschewed “without

clear statutory support therefor which is lacking

here” (App. A, infra, 15a). After strongly suggest-

* The district court also rejected respondents’ constitutional

challenges to the Act as applied (App. D, infra, 34a-36a).

5 Section 526(a) (1), 30 U.S.C. (Supp. III) 1276(a) (1) in-

cludes the requirement that “[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.”

ing that the Secretary’s regulations relating to the

cemetery limitation are arbitrary and capricious,’

the court remanded the case to the district court for

consideration of that issue.’

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals frustrates the

congressional intent that the regulations implement-

ing the Surface Mining Control and Reclamation Act

of 1977, 30 U.S.C. (Supp. III) 1201 et seg., receive

prompt and uniform judicial review, and thus jeop-

ardizes a primary purpose of the Act: to require that

all surface mining throughout the country comply

with uniform minimum performance standards.“ That

ccucern remains serious even if we assume that other

courts will respect the jurisdiction of the United

States District Court for the District of Columbia

insofar as it has already reviewed the regulations

challenged in that forum.’ First, certain of those

* Judge Merritt, concurring in the judgment, objected to

the majority’s discussion of the merits of the issue to be con-

sidered by the district court on remand (App. A, infra, 21a).

The court of appeals majority found it unnecessary to

reach respondents’ constitutional claims. Judge Merritt agreed

with the district court’s conclusion that the Act as applied is

constitutional (App. A, infra, 2la-22a).

This uniformity of interpretation is not only important to

OSM’s efforts to enforce the Act; it also protects the states

and the coal mine operators from the adverse effects of lax

interpretations of the regulations in neighboring jurisdictions.

Cf. Section 101(g), 30 U.S.C. (Supp. III) 1201 (g); Hodel v.

Virginia Surface Mining & Reclamation Association, supra.

In re Surface Mining Regulation Litigation, 456 F. Supp.

1301, 1307 (D.D.C. 1978), rev'd in part, 627 F.2d 1346 (D.C.

Cir. 1980) (interim program regulations) ; In re Permanent

regulations—like the “cemetery” definition at issue

here—have not been attacked in the District of Colum-

bia proceedings. And, more important, the Secretary

is currently engaged in a significant revision of the

regulations and anticipates substantial litigation when

the revised regulations are promulgated. Accordingly,

if the decision below is permitted to stand, there is a

very real prospect of conflicting judicial interpreta-

tions of the Surface Mining Act resulting from decen-

tralized review.” Before that disruptive eventuality

materializes—inevitably calling for resolution of dif-

fering views by this Court—we ask the Court to con-

firm the limitation on judicial review imposed by the

Act."

1. The congressional desire to establish uniform

national performance standards for the surface min-

Surface Mining Regulation Litigation, 14 E.R.C. 1083 (D.D.C.

1980) (Secretary has authority to require supplemental infor-

mation in permit applications); In re Permanent Surface

Mining Regulation Litigation, 15 E.R.C. 1802, 1814 (D.C. Cir.

1981) (aff’d en banc, noting “appellant is free to continue to

contest the specific regulations in the district court).

10 The reasoning of the court of appeals would also permit

the review of the Secretary’s approval or disapproval of a

state plan in courts other than the single district court in

each state specified in the Act, because the wording of this

provision is identical to the jurisdictional limitation inter-

preted by the Court. Seven state programs, involving the

major coal-producing states, are currently under consideration

for approval by the Secretary.

11 The only other courts to rule on this question have both

held that Section 526(a)(1) provides for review of national

regulations exclusively in the district court for the District

of Columbia. Reading Anthracite v. Office of Surface Mining,

Reclamation and Enforcement, No. 80-0667 (E.D. Pa. Oct. 8,

1980) ; Union Carbide Corp. v. Andrus, 13 E.R.C. 1481, 1489

(S.D. W.Va. 1979).

ing industry was an important factor in the enact-

ment of the Surface Mining Control and Reclamation

Act (S. Rep. No. 95-128, 95th Cong., Ist Sess. 49

(1977) ; H.R. Rep. No. 95-218, 95th Cong., Ist Sess. 58

(1977) ). That goal is reflected not only in the proce-

dures for implementing the performance standards,

but also in the judicial review provision. Thus, in

Section 526 (a) (1) of the Act (30 U.S.C. (Supp. III)

1276 (a) (1)), Congress carefully identified the vari-

ous types of regulatory activities of the Secretary,

and provided that each type should be subject to cen-

tralized judicial review: regulations with a national

impact in the District of Columbia district court,

those with a statewide impact in the district court

for the district of the capital of the state involved,

and all other regulations only in the district where

the particular surface mining operation involved is

located. The court of appeals turned this careful leg-

islative effort on its head by reading it to give cen-

tralized review in a single district court only to the

Secretary’s least significant regulatory actions, and to

subject those with a national scope to the risk of con-

flicting interpretations in a variety of jurisdictions.”

12 That risk is a very real one, as the opinion of the court

below demonstrates. Congress reasonably sought to avoid

precisely the sort of unsympathetic statutory interpretation

reflected not only in the court’s jurisdictional holding, but

in its reaching out to suggest on the merits that the regulation

defining a cemetery as “any area of land where human bodies

are interred” is arbitrary and capricious (cf. App. A, infra,

21a).

Not only is the inclusion of private burial plots within the

term “cemetery” entirely reasonable on its face (see, e. .,

Webster’s Seventh New Collegiate Dictionary 134 (1970), it

it also clearly consistent with the legislative history of the Act.

See Mining and Mineral Research Centers: Hearing Before

The fact that Section 526(a) (1) does not expressly

state that review of national regulations is to be only

in the District of Columbia district court is not sig-

nificant. Congress apparently relied on the “well set-

tled [rule] that if Congress, as here, specifically desig-

nates a forum for judicial review of administrative

action, that forum is exclusive. * * * And this result

does not depend on Congress using the word ‘exclu-

sive’ in the statute providing for a forum for judi-

cial review.” Gardner v. Alabama Department of

Pensions & Security, 285 F.2d 804, 810 (5th Cir.

1967), cert. denied, 389 U.S. 1046 (1968) (citations

omitted); Getty Oil Co. v. Ruckelshaus, 467 F.2d

349, 356 (3d Cir. 1972), cert. denied, 409 U.S.

1125 (1973); see also Whitney National Bank v. Bank

of New Orleans, 379 U.S. 411, 422 (1965). The Dis-

trict of Columbia district court and the district court

for the state capital are specifically identified, and

thus exclusive. In order to avoid any possible doubt

that jurisdiction over specific regulations is to be

the Subcomm, on Mines and Mining of the House Comm. on

Interior and Insular Affairs, 92d Cong., Ist Sess. 812 (1971);

Regulation on Surface Mining, Part I: Hearing Before the

Subcomm. on the Environment and the Subcomm. on Mines

and Mining of the House Comm. on Interior and Insular Af-

fairs, 93d Cong., Ist Sess. 783 (1973); 118 Cong. Rec. 35048

(1972) (remarks of Rep. Hechler); 123 Cong. Rec. 15575

(1977) (remarks of Sen. McClure). Moreover, contrary to

the su tion of the court of appeals (App. A, infra, 14a-

15a), e Secretary’s selection of 100 feet as the minimum

distance for surface mining from a cemetery, and his refusal

to permit a waiver of that provision, reflect precise statutory

directions (30 U.S.C. (Supp. III) 1272 (e) (5)), not arbitrary

administrative regulation. Finally, the court’s suggestion

(App. A, infra, 15a) that protection of private burial plots

exceeds congressional power under the Commerce Clause is

inconsistent with this Court’s decisions in Hodel v. Virginia

Surface Mining & Reclamation Association, supra; and Hodel

v. Indiana, 452 U.S. 314 (1981).

solely in the district court where the mine is located,

the word “only” is used; it is simply not needed in the

two prior clauses.

The court of appeals stressed that although both

the House and Senate versions of the bill expressly

provided that national regulations were to be reviewed

only in the District of Columbia district court,” the

word “only” was omitted from the final version of the

bill reported out of the conference committee (App. A,

infra, 13a). However, the conference committee’s dis-

cussion of the changes made in the bill does not even

mention this deletion. H.R. Rep. No. 95-493, 95th

Cong., Ist Sess. 111 (1977). Committee changes in

the language of a bill made without explanation are

not a reliable guide to statutory interpretation.

Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947).

Moreover, as this Court noted in National Coal Opera-

tors Association v. Kleppe, 423 U.S. 388, 401 n.10

(1976), “A Conference Committee does not have the

authority to make changes on matters as to which

both bills agree.”

Finally, in relying on Abbott Laboratories v. Gard-

ner, 387 U.S. 136 (1967) as authority for rejecting

the district court’s interpretation of Section 526(a)

(1), the court of appeals has overlooked the crucial

distinction between providing an exclusive forum for

judicial review and providing no judicial review at

all. In Abbott Laboratories this Court found that

because there was a presumption of reviewability of

administrative action, the mere fact that certain reg-

ulations were made reviewable did not, without more,

support an inference than Congress intended to fore-

close review of other regulations (387 U.S. at 140-

1 See H.R. 2, 95th Cong., Ist Sess. § 526 (a) (1) (1977),

H.R. Rep. No. 95-218, 95th Cong., Ist Sess. 46 (1977); S. 7,

95th Cong., Ist Sess. § 426 (a) (1) (1977); S. Rep. No. 95-128,

95th Cong., Ist Sess, 41 (1977).

141). But unlike the interpretation of the review pro-

vision rejected by this Court in Abbott Laboratories,

the district court’s interpretation of Section 526(a)

(1) does not cut off the challenged regulation from

all review.“ Section 526 (a) (1) only restricts review

of such regulations to a specific forum.“

2. The district court properly concluded that the

only court with subject matter jurisdiction over re-

spondents’ challenge to the national regulation con-

tained in 30 C.F.R. 761.5 was the United States Dis-

trict Court for the District of Columbia. It was there-

fore unnecessary for the court to consider whether

respondents satisfied the timeliness requirement of

Section 526 (a) (1). Similarly, since the district court

found it lacked jurisdiction, the issue of whether the

suit was time-barred by the running of the 60-day

limitation was not properly before the court of ap-

peals and need not be decided by this Court. Never-

theless, because the court of appeals stated that this

limitation raised “serious questions” and lacked “clear

statutory support” (App. A, infra, 15a), we urge this

Court to affirm the 60-day limitation on judicial re-

Moreover, additional factors favoring judicial review were

present in Abbott Laboratories that are not present in this

case, There was a saving clause in the Act which provided

that the statutory judicial review “shall be in addition to and

not in substitution for any other remedies provided by law.”

21 U.S.C. 371 (f) (6). The legislative history of the Act

showed that Congress considered judicial review of agency

actions in excess of the agency’s authority to be already avail-

able under the general equity powers of the courts. Congress

added the special review provision to make sure that factual

determinations of the agency could also be reviewed (387

U.S. at 142-148).

15 Centralization of review jurisdiction is a common method

of assuring national uniformity. See, ¢.g., 42 U.S.C. 19730

(Voting Rights Act of 1965), and 42 U.S.C. (Supp. III) 7607

(b) (1) (Clean Air Act).

view if it disagrees with our position on the first

issue submitted.

The court of appeals did not explain why it found

unclear the statutory direction that 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” (30 U.S.C.

(Supp. III) 1276 (a) (1).“ The court to which Con-

gress entrusted the responsibility for interpreting the

requirement, the United States District Court for the

District of Columbia, found no such lack of clarity

(In re Surface Mining Regulation Litigation, supra,

456 F. Supp. at 1307; accord, Tug Valley Recovery

Center v. Watt, No. 81-2096 (S.D. W. Va. Feb. 4,

1982) ), and we are aware of none. Moreover, such

requirements for prompt judicial review of agency

action are not unusual. See e.g., 33 U.S.C. 1369 (b) (1)

(Federal Water Pollution Control Act) ; 15 U.S.C. 78y

(Securities Exchange Act of 1934); 15 U.S.C. 2060

(Consumer Product Safety Act). This Court held, in

Yakus v. United States, 321 U.S. 414, 433 (1944),

that due process was not denied by a limitation on

review of emergency price control regulations to one

court within 30 days of administrative denial of a

protest that had to be filed within 60 days of the

promulgation of the regulation. The Court recog-

nized that the limitation of time for seeking judicial

review results in a comprehensive and swift review of

new regulations (321 U.S. at 432-433)." Ignoring

There is no suggestion that the grounds on which re-

spondents challenged the regulation arose more than 60 days

after its promulgation.

17 Justice Powell, concurring in Adamo Wrecking Co. v.

United States, 434 U.S. 275, 290 (1978), although “express-

the 60-day limitation would undercut the effectiveness

of that effort by permitting piecemeal review of

aspects of the regulations long after they would other-

wise have become fully effective, binding guidelines

upon which all concerned can rely.“

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

REX E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

Dirk D. SNEL

LAURA FROSSARD

Attorneys

FEBRUARY 1982

Jing] no considered judgment,” suggested that “Yakus is at

least arguably distinguishable” from Adamo, which involved

the 30-day judicial review provision in the Clean Air Act,

42 U.S.C. 1857h-5(b), on the ground that Yakus may have

been based on Congress’ war powers under Article I, Section 8

of the United States Constitution. Justice Powell was evidently

concerned that a 30-day review provision permits “precari-

ously little time” for those affected to act. The 60-day provi-

sion here is, of course, less stringent. The Majority in Adamo

assumed that Yakus would permit a similar restriction on

judicial review in the Clean Air Act (434 U.S. at 278-279).

18 That review of the permanent regulations issued under

the Surface Mining Control and Reclamation Act of 1977

has been underway in the United States District Court for the

District of Columbia for several years (see note 9, supra),

merely highlights the importance of beginning the process

promptly.

ee ee eee ,

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 80-3666

HOLMES LIMESTONE Co., ET AL.,

PLAINTIFFS-APPELLANTS

CECIL B. ANDRUS, ET AL., DEFENDANTS-APPELLEES

Appeal from the United States Distriet Court

for the Northern Distriet of Ohio

Deeided and Filed August 6, 1981

Before: WEICK and MERRITT, Circuit Judges and

ENSLEN, U.S. District Judge.*

WEICK, Circuit Judge, delivered the opinion of the

court, in which ENSLEN, U.S. District Judge, joined.

MERRITT, Circuit Judge (pp. 15-19), delivered a sepa-

rate opinion, concurring in the judgment.

WEICK, Circuit Judge. This appeal is from a judg-

ment of the District Court for the Northern District

* The Honorable Richard A. Enslen, United States District

Judge, Western District of Michigan, sitiing by designation.

of Ohio, Eastern Division, dissolving a preliminary

injunction which it had issued in favor of the appel-

lants and then dismissing their complaint for declara-

tory and injunctive relief for lack of jurisdiction. In

their complaint, the appellants had challenged the

construction and application by the Secretary of In-

terior of the Surface Mining Control and Reclama-

tion Act of 1977, 30 U.S.C. § 1201, et seg. and Reg-

ulations with respect to appellants’ mining operations

on farms owned by Amish people near their private

family burial plots which farms had been leased by

them to appellant, Holmes Limestone, for the mining

of coal in Holmes County, Ohio. Holmes Limestone

contended that if said Act and Regulations were

applicable and enforced in the manner attempted by

the Secretary, this would constitute a taking of its

property without due process of law in violation of

the Fifth Amendment to the Constitution and would

deprive it of the Equal Protection of the Laws in

violation of the Fourteenth Amendment.“

After granting the preliminary injunction in favor

of Holmes, the district court, when it completed hear-

ing the case on its merits, reluctantly decided that

it had no jurisdiction to hear appellants’ case, holding

that the United States District Court for the District

of Columbia had exclusive jurisdiction to hear it.

In our opinion, the district court erred in holding

that it was without jurisdiction and should have

heard and decided the case on its merits. We re-

verse and remand.

Jurisdiction of the court was based on 28 U.S.C.

§§ 1331, 2201, 2202; 30 U.S.C. § 1276 (a) (1) and vio-

Ohio Mining and Reclamation Association is a trade

association composed of coal miners in Ohio and in which

Holmes is a member.

lations of the Fifth and Fourteenth Amendments to

the Constitution.

I. Background

The Surface Mining Control and Reclamation Act,

30 U.S.C. § 1201, et seg., was enacted by the 95th

Congress and signed into law on August 3, 1977.

The Act provides a two-tiered system of regulation

whereby an “interim” or “initial” program is to be

followed by a system of permanent regulation.

Section 201 of the Act (30 U.S.C. § 1211) creates

the Office of Surface Mining Reclamation and En-

forcement (OSM) within the Department of the In-

terior. The Secretary of the Interior, through the

OSM and its Director, is given the responsibility of

administering and implementing the Act (30 U.S.C.

§ 1211(c)).

The Secretary is directed by 30 U.S.C. § 1251(a) to

promulgate regulations governing the initial program

and by § 1251(b) to promulgate the permanent regu-

latory program. Section 1251(a) directs the Secre-

tary to promulgate the interim regulations “based on

and incorporating the provisions set out in section

1252(c) of this title.”

Section 1252 provides, in pertinent part:

§ 1252. Initial regulatory procedures—

State regulation.

(a) No person shall open or develop any new or

previously mined or abandoned site for surface

coal mining operations on lands on which such

operations are regulated by a State unless such

person has obtained a permit from the State’s

regulatory authority.

Interim Standards

(b) All surface coal mining operations on lands

on which such operations are regulated by a

State which commence operations pursuant to a

permit issued on or after six months from Au-

gust 3, 1977, shall comply, and such permits

shall contain terms requiring compliance with

the provisions set out in subsection (c) of this

section. Prior to final disapproval of a State

program or prior to promulgation of a Federal

program or a Federal lands program pursuant to

this chapter, a State may issue such permits.

Full compliance with environmental

protection performance standards

1977, all surface coal mining operations on lands

on which such operations are regulated by a

State shall comply with the provisions of sub-

sections (b) (2), (b) (3), (b) (5), (b) (10), (b)

(13), (b) (15), (b) (19), and (d) of section

1265 of this title or, where a surface coal min-

ing operation will remove an entire coal seam

or seams running through the upper fraction of a

mountain, ridge, or hill by removing all of the

overburden and creating a level plateau or a

gently rolling contour with no high-walls re-

maining, such operations shall comply with the

requirements of section 1265(c)(4) and (5) of

this title without regard to the requirements of

section 1265(b)(3) or 1265(d)(2) and (3) of

this title, with respect to lands from which over-

burden and the coal seam being mined have not

been removed. Provided, however, That surface

coal mining operations in operation pursuant to

a permit issued by a State before August 3,

1977, issued to a person as defined in section

1291(19) of this title in existence prior to May

2, 1977 and operated by a person whose total an-

nual production of coal from surface and under-

ground coal mining operations does not exceed

one hundred thousand tons shall not be subject

to the provisions of this subsection except with

reference to the provision of section 1265(d) (1)

of this title until January 1, 1979.

Section 1252(e) provides for a federal enforce-

ment program which operates during the interim

period; that period during which federal and state

enforcement procedures are coexistant. Section 1252

(e)(1) gives the Secretary enforcement power over

the interim standards of subsections (b) and (c) of

Section 1252. As noted in the portion of § 1252(c)

set out above, the interim jointly administered pro-

grams must comply with § 1265(b) (2), (b) (3), (b)

(5), (b) (10), (b) (15), (b) (19) and (d).

On December 13, 1977, the Secretary promulgated

the interim regulations. (42 Fed. Reg. 62677) These

regulations are contained in 30 C.F.R. Parts 710

through 725 (1980). By their own terms, based upon

the statutory grants of authority, the regulations are

effective until permanent programs are approved in

accordance with sections 503, 504, or 523 of the Act.

In the Secretary’s recitation of his authority, he

states as follows:

§ 710.3 Authority.

(a) The Secretary is directed to implement an

initial regulatory program within six months

after the date of enactment of the Act in each

State which regulates any aspect of surface coal

mining under one or more State laws until a

State program has been approved or until a Fed-

eral program has been implemented.

(30 C.F.R. § 710.3)

These regulations implement the above listed pro-

visions of 30 U.S.C. § 1265, within the authority

granted te the Secretary under 30 U.S.C. § 1252(c).

As stated above, interim enforcement of these

standards is jointly handled by the OSM and the

respective states. In fact, 30 C.F.R. § 720.11 states

as follows:

§ 720.11 Enforcement authority.

Nothing in the Act or these regulations shal! be

interpreted to preclude a State from exercising

its authority to enforce State law, regulations,

and permit conditions, unless compliance with

the State law, regulations, or permit condition

will preclude compliance with these regulations.

In the instant case, Ohio’s interim enforcement pro-

gram had been approved by the Secretary and Ohio

was enforcing the interim standards of 30 C. F. R.

Parts 710 through 725.

An interesting event, however, occurred on Decem-

ber 31, 1979. On that date, by a notice published

in the Federal Register (44 Fed. Reg. 77445) and by

amendment to 30 C.F.R. § 701.1(b) (3), the Secre-

tary declared that the regulations of 30 C.F.R. Part

761 would be applicable during the interim regula-

tory program. The regulations of Part 761 imple-

ment the standards and requirements of 30 U.S.C.

§ 1272 and are part of the permanent regulatory

program authorized by 30 U.S.C. § 1251(b).

30 U.S.C. § 1272(e) provides, inter alia:

Prohibition on certain Federal public and private

surface coal mining operations

(e) After August 3, 1977, and subject to valid

existing rights no surface coal mining operations

except those to which exist on August 3, 1977,

shall be permitted—

(5) within three hundred feet from any occupied

dwelling, unless waived by the owner thereof,

nor within three hundred feet of any public

building, school, church, community, or institu-

tional building, public park, or within one hun-

dred feet of a cemetery. Pub. L. 98-87, Title V,

§ 522, Aug. 3, 1977, 91 Stat. 507. (emphasis

added. )

30 C.F.R. § 761 provides, inter alia:

761.5 Definitions.

For the purposes of this part:

Cemetery means any area of land where human

bodies are interred.

[44 FR 15341, Mar. 13, 1979, as amended at 44

FR 77447, Dec. 31, 1979]

By this amendment, the Secretary sought to enlarge

and extend the coverage so as to embrace private

family burial plots not theretofore regarded as

cemeteries.

It is the application of 30 U.S.C. § 1272, as im-

plemented by 30 C.F.R. § 761.5, to the appellants

during the interim program which is challenged.

II. Facts

The facts as found by the district court were not

in dispute. The answer of the defendants admitted

thirty-five of the plaintiff’s thirty-seven factual al-

legations.

Holmes Limestone is engaged in the mining of coal

in Holmes County, Ohio, as well as in surrounding

counties. It is a closely held corporation which em-

ploys 80 persons and derives 90 percent of its coal

production from Holmes County.

There is a very high concentration of Amish people

living in Holmes County. The Amish bury their dead

on their own farms in small, private burial plots.

These small family burial plots are usually located

on the family farm or on the farm of a close relative

on the top of a hill. There are hundreds of these

small burial plots throughout Holmes County, Ohio.

These small private burial plots can hardly be called

a cemetery as members of the public are not buried

there.

There are two such farms with family burial plots

involved in this appeal. One is owned by Melvin H.

Raber, the other by Noah M. Beachy. Holmes Lime-

stone entered into written leases with the owners to

mine coal on these farms on April 12, 1979 and May

2, 1979, respectively. These leases do not mention

the burial plots, but do require that operations com-

ply with the law of State of Ohio.

Holmes Limestone has developed quite a favorable

reputation in Holmes County as a careful and con-

scientious coal mine operator. The company is highly

trusted in the county and has been mining on Amish

lands for 30 years. The company is known for its

reclamation procedures and for its care and concern

in all aspects of its operation. It is also undisputed

that the Amish landowners herein are strongly de-

sirous of having Holmes Limestone mine within 25

feet of their family burial plots, as it has been re-

peatedly demonstrated it can be safely done without

injury to the graves and they do not want to lose

the coal which can be mined.

During the interim program, Ohio coal operators

are required to apply to the Ohio Department for

Natural Resources, Division of Reclamation for a

permit. (Ohio Rev. Code § 1513.01 et seg.; 30 U.S.C.

§ 1252 (a)). In September, 1979, Holmes Limestone

applied to Charles Call, Chief of the Ohio Division of

Reclamation, (Ohio Department of Natural Re-

sources) for a permit to mine on the Beachy farm.

The permit was granted on March 15, 1979. The

permit prohibited mining within 100 feet of the burial

plot in accordance with Ohio Administrative Code

§ 1501: 13-19-03-(3).

In December, 1979, Holmes Limestone applied to

Chief Call for an amendment to the permit which

would allow it to mine within 100 feet of the burial

plot. On January 4, 1980, Chief Call issued an order

denying the application for an amendment to the

permit.

Following Ohio’s administrative procedure, Holmes

Limestone appealed that order to the Ohio Reclama-

tion Board of Review. A hearing was held before the

Board on March 5, 1980. On March 27, 1980, the

Board ruled that the small private family burial

plot on the Beachy farm was not a “cemetery” with-

in the meaning of § 1501:13-19-03(3) of the Ohio

Administrative Code. The Board ordered that Chief

Call issue the amended permit to Holmes Limestone

allowing it to mine within 100 feet of the plot but

no closer than 25 feet. ( App. 13-15).

10a

Prior to issuing the amended permit, Chief Call

received oral instructions from John McDowell, So-

licitor of the Office of Mining, Reclamation and En-

forcement (OSM) not to issue the permit. On April

16, 1980, Call received a letter from Edgar Imhoff,

Regional Director of the OSM which threatened en-

forcement action against Holmes Limestone and in-

formed Call that the issuance of the permit would

be inconsistent with Ohio’s responsibilities for im-

plementation of the interim program under the Fed-

eral grant. (App. 16). All of this was apparently

an interference with Ohio’s authorized procedures.

On May 1, 1980, faced with these conflicting or-

ders, Chief Call appealed the decision of the Ohio

Reclamation Board of Review to the Franklin County

(Ohio) Court of Common Pleas and requested a stay

of the Board’s order to issue the permit. Following a

hearing on May 16, 1980, the Common Pleas Court

denied the motion for a stay and on May 19, 1980,

issued an order authorizing the amended permit,

which was then issued.

On December 18, 1979, Holmes Limestone applied

to the Ohio Division of Reclamation for a permit to

mine on the Raber property. As with the Beachy

property, the permit allowed mining up to within

100 feet of the burial site located on the property.

On April 25, 1980, Holmes Limestone applied for an

amended permit to allow it to mine up to within 25

feet of the plot. The process was held up in the Ohio

Division of Reclamation due to the filing of the in-

stant case in district court. The amended permit was,

however, eventually issued in October, 1980. Holmes

Limestone has apparently been conducting mining

operations in the area between 25 and 100 feet of

the burial plot since that time.

lla

As noted above, the amended permit to mine on the

Beachy farm was issued on May 19, 1980. Holmes

Limestone thereafter commenced operations. On June

6, 1980, Holmes Limestone and the Ohio Mining and

Reclamation Association filed suit in the United

States District Court seeking to enjoin the OSM from

enforcing 30 U.S.C. §1272(e)(5) and 30 C. F. R.

§ 761.5 against them and for declaratory relief.

On June 11, 1980, Holmes Limestone was served

with a “notice of violation” for mining within 100

feet of the burial plot on the Beachy property.

As regards the declaratory relief, appellants sought

to have 30 C.F.R. § 761.5 declared arbitrary, capri-

cious and inconsistent with the Act as written and

applied; to have the statute and the regulation con-

strued not to apply to small private family burial

sites located on private property; and in the alterna-

tive, to have the statute and/or the regulation de-

clared unconstitutional. The action also sought a

preliminary injunction.

At the trial, there was not an iota of evidence of-

fered by the Secretary that the mining near the pri-

vate burial plots permitted by the State would result

in any damage to the graves or to the environment.

We ask then whose interest was the Secretary at-

tempting to protect if it is clear that the conduct of

the Secretary was arbitrary and capricious? He also

seeks to deprive all federal courts of jurisdiction to

remedy the violations except the District Court for

the District of Columbia, where it would be impos-

sible for appellants to obtain any relief.

Neither the appellants nor the Amish had any

previous knowledge of the Act or the regulations and

did not participate in any manner in their promulga-

tion. The time for taking any action had long since

expired. If the regulations are applied to appellants,

12a

they have no remedy to redress under the Act the tak-

ing or violation of their property rights.

‘Lhe Secretary filed an answer (App. 44) and an

amended answer (App. 46) and both parties filed

stipulations (App. 48). Following a hearing on June

30, 1986, the district court entered a preliminary

injunction prohibiting the Secretary from taking fur-

ther enforcement action against Holmes Limestone

for mining within 100 feet of the burial plots.

III. Jurisdiction

The district court dismissed the appellants’ chal-

lenge to the validity of 30 C.F.R. § 761.5 based on

its finding that it lacked jurisdiction to consider the

challenge under 30 U.S.C. § 1276 (a) (1). That sec-

tion provides:

§ 1276. Judicial review—Review by United

States District Court; venue; filing of

petition; time

(a)(1) 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 in-

cluding standards pursuant to sections 1251,

1265, 1266, and 1273 of this title shall be sub-

ject to judicial review in the United States Dis-

trict 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 Dis-

13a

trict 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 the

law. A petition for review of any action sub-

ject 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 ag-

grieved by the action of the Secretary.

The legislative history of the Act indicates that both

Senate and House versions of the bill that was con-

sidered expressly stated that such review was to be

only in the District of Columbia, but the word only

was later deleted in the Conference Committee bill

that was finally adopted. If Congress had desired to

limit jurisdiction to the District of Columbia it would

never have deleted the word only from the bill.

It should also be noted that the Act even provides

that any subject to review “shall be affirmed unless

the court concludes that such action is arbitrary,

capricious, or otherwise inconsistent with law.” The

Secretary would even preclude the District Court

for the District in which the surface coal mining

operation is located from determining whether his

action is arbitrary or capricious.

In Abbott Laboratories v. Gardner, 387 U.S. 136

(1967), the court stated:

A survey of our cases shows that judicial re-

view of a final agency action by an aggrieved

person will not be cut off unless there is per-

l4a

suasive reason to believe that such was the pur-

pose of Congress.” (Citations omitted)

This has been reinforced by the enactment of the

Administrative Procedure Act which embodies the

basic presumption of judicial review. Holmes Lime-

stone doing business with the Amish in Holmes Coun-

ty had no knowledge of the adoption of regulations

by the Secretary restricting its right to engage in

a lawful business. It had property rights, equip-

ment and leases which were in existence even prior

to the enactment of the Act and its regulations. To

hold that such regulations can deprive it of its prop-

erty rights raises serious constitutional questions

which are being invoked in this appeal. See con-

curring opinion of Justice Powell in Adamo Wreck-

ing Co. v. United States, 434 U.S. 275, 289-91 (1978)

rev. 545 F.2d 1 (6th Cir. 1976).

Since the district court dismissed for lack of juris-

diction it made no determination of the issue whether

the action of the Secretary was arbitrary and ca-

pricious. This issue would appear to us to be a

mixed question of law and fact requiring resolution

vy the trial court.

Application of the 100 feet rule in force as to

public cemeteries with respect to Holmes Limestone

and the Amish under the Administrative Procedure

Act, 5 U.S.C. § 706 (2), would not appear to make

sense since it bears no reasonable relationship to any-

thing. Without any reason the Secretary could have

named 150 feet or 50 feet. Also the private burial

plots could have only one or two graves. The uncon-

troverted evidence at the trial is that surface mining

can be safely conducted as close as 5 feet to the

graves and cause no harm either to the graves or

grave sites. Cf. In re Surface Mining Regulation

Litigation, 627 F.2d 1346, 1358-80 (D.C. Cir. 1980).

15a

There are serious questions about the propriety of

limiting jurisdiction to review the regulations in

issue to the District of Columbia within 60 days

of its promulgation. No such regulation should be

enforced by the court in this type of case without

clear statutory support therefor which is lacking

here. It is submitted that the Secretary has no au-

thority to legislate by regulation.

There is no evidence that Congress ever intended

to regulate private family burial plots not open to

the public. It can hardly be claimed that the mining

close to the graves on private property interferes

with interstate commerce.

It certainly appears to be arbitrary and capricious

for the Secretary to permit one coal operator to

desecrate the graves in a public cemetery by remov-

ing the graves therefrom to another location to per-

mit surface mining and at the same time interfer-

ing with another operator which respects a private

family burial site by leaving it wholly intact and

undisturbed and mining only to within 10 to 25 feet

of it. The regulation thus permits desecration of

graves and is therefore inconsistent with the Act.

Section 1501:13-19-03(3) of the Ohio Administra-

tive Code was enacted from Section 522(e) of the

Act, 30 U.S.C. 1272(e). The Ohio Reclamation Board

of Review held and the Common Pleas Court of Frank-

lin County, Ohio, preliminarily decided that for the

purpose of Ohio law, the private family burial site

on the Raber farm involved in this appeal is not a

cemetery within the meaning of that section of the

Ohio Administrative Code. Also Ohio’s proposed Reg-

ulation 1501:13-3-02 provides as follows:

(K) “Cemetery” means any area of land where

human bodies are interred, but does not include

private burial grounds.

16a

The Secretary’s arbitrary ruling occurred during

the time when the interim standards were applicable

and Ohio had jurisdiction and the ruling has inter-

fered with the coal mining of Holmes Limestone and

the Amish farmers and has already destroyed min-

ing in certain areas resulting in substantial and ir-

retrievable losses to both if the claimed arbitrary and

unconscionable conduct of the Secretary is enforced

by the courts.

We are of the opinion that it is not necessary for

us at this time to rule on the claims to constitutional

violations asserted by Holmes Limestone. We are

not required to rule on the constitutional claims un-

less it is necessary. The district court on remand

now having jurisdiction, may rule on the issue wheth-

er the Regulations and the Secretary’s construction

and application of them are arbitrary, capricious or

otherwise inconsistent with law.

The record also reveals that Holmes Limestone and

also the Amish owned other properties or leases exist-

ing prior to the Act and Regulations which may be

affected by the position which the Secretary has taken

and these issues can be considered and evidence re-

lating thereto introduced on remand in the district

court.

It should be noted that the Hodel decision of the

Supreme Court referred to in the concurring opinion

of Judge Merritt refers only to facial challenges to

the constitutionality of the statutes and not to chal-

lenges of actual violations of the constitution which

may considered by the district court in remand

if necessary.

The judgment of the district court is reversed and

the cause is remanded for further proceedings con-

sistent with this opinion.

17a

MERRITT, concurring in the judgment. I agree that

the district court has jurisdiction in this case to re-

view 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 legis-

lative intent, requiring an interpretation of the stat-

ute in which Congress provided for judicial review

of rules promulgated under the 1977 Surface Min-

ing Act:

Any action of the Secretary to approve or dis-

approve a State program or to prepare or prom-

ulgate a Federal program pursuant to this chap-

ter 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 in-

cluding standards pursuant to sections 1251,

1265, 1266, and 1273 of this title shall be sub-

ject to judicial review in the United States Dis-

trict 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 Dis-

trict in which the surface coal mining operation

is located. Any action subject to judicial re-

view under this subsection shall be affirmed un-

less the court concludes that such action is arbi-

trary, capricious, or otherwise inconsistent with

law. A petition for review of any action sub-

ject 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

18a

date if the petition is based solely on grounds

arising after the sixtieth day. Any such peti-

tion may be made by any person who partici-

pated 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 regu-

lations in the District Court for the District of Co-

lumbia to be exclusive. The court concluded that it

was foreclosed by the statute from addressing Holmes

Limestone’s argument that the regulation is arbi-

trary 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 promulgation of the regula-

tion, a period that expired prior to commencement

of this action. The government also argues that un-

der the last sentence of 30 U.S.C. 5 1276 (a) (1),

challenges to regulations may be brought only by

parties who participated in the rulemaking process.

Thus the government’s position would not merely

require parties in Holmes Limestone’s position to

litigate their claims im 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 pro-

ceeding in a single forum within sixty days of its

promulgation. This would guarantee that the im-

portant policies of the Act would be implemented in

an efficient, orderly fashion. A contrary interpreta-

tion, the government argues, would “jeopardize the

entire surface mining regulatory program” (Ap-

pellee’s Brief at 15), because of the disruptive effects

19a

of constant litigation in the various courts through-

out the country and the possibility of varying and

contradictory interpretations rendered by different re-

viewing courts.

The government’s policy argument has some force.

But it conflicts with another policy that is para-

mount, namely the policy in favor of granting parties

access to federal courts to resolve controversies aris-

ing from final administrative actions. Cf. Abbott

Laboratories v. Gardner, 387 U.S. 136, 140 (1967)

(“judicial review of a final agency action by an ag-

grieved person will not be cut off unless there is per-

suasive reason to believe that such was the purpose of

Congress”); Rusk v. Cort, 369 U.S. 367, 379-80

(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 urges 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 Lime-

stone responds that the Conference Committee’s de-

letion of the word “only” in the sentence referring

to the District of Columbia court and the absence

of any other language expressly limiting review re-

veal a Congressional intent to the contrary. It argues

that Congress meant by this statute to extend ju-

risdiction 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

20a

me to interpret the statute against such exclusivity.

First, in other statutory schemes Congress has clear-

ly limited judicial review in a fashion that dem-

onstrates that it knows how to express such an in-

tent 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 (1944) (Emergency Price Control Act);

Adamo Wrecking Co. v. United States, 434 U.S. 275

(1978) (Clean Air Act). In comparison, the absence

of any such express language in § 1276(a)(1) evi-

dences Congressional intent that the review provi-

sions not be exclusive.

Although positive intent cannot always be con-

strued from Congressional silence, that interpreta-

tion 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,

“Tt is totally unrealistic to assume that more than a

fraction of persons and entities affected by a regula-

tion—especially small contractors scattered across the

country—would have knowledge of its promulgation

or familiarity with or access to the Federal Reg-

ister.” 434 U.S. at 290 (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

21a

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 defin-

ing 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 Lime-

stone, 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 un-

compensated taking of property and a denial of equal

protection and is in excess of the federal govern-

ment’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

22a

opinions that upheld various sections of the Act

against similar challenges. Hodel v. Virginia Surface

Mining and Reclamation Ass’n, 49 U.S.L.W. 4654

(June 15, 1981); Hodel v. Indiana, 49 U.S.L.W. 4667

(June 15, 1981).

23a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 80-3666

HOLMES LIMESTONE Co., ET AL.,

PLAINTIFFS-APPELLANTS

v8.

CEecIL B. ANDRUS, ET AL., DEFENDANTS-APPELLEES

[Filed Aug. 6, 1981]

Before: WEICK and MERRITT, Circuit Judges

and ENSLEN, District Judge.

JUDGMENT

Appeal from the United States District Court

for the Northern District of Ohio

THIS CAUSE came on to be heard on the record

from the United States District Court for the North-

ern District of Ohio and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

ordered and adjudged by this Court that the judg-

ment of the said District Court in this cause be and

the same is hereby reversed and the case is remanded

for further proceedings consistent with the opinion

of this Court.

24a

No costs taxed. Each party to bear own costs on

this appeal.

ENTERED BY ORDER

OF THE COURT

JOHN P. HEHMAN

Clerk

/s/ {Illegible]

Chief Deputy Clerk

A True Copy.

Attest:

/s/ Gary McCarthy

Deputy Clerk

25a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 80-3666

HOLMES LIMESTONE Co., ET AL.,

PLAINTIFFS-APPELLANTS

SECRETARY OF THE INTERIOR, ET AL.,

DEFENDANTS-APPELLEES

[Filed Sept. 29, 1981]

Before WEICK and MERRITT, Circuit Judges

and ENSLEN, U.S. District Judge.*

ORDER

Upon consideration, it is ORDERED that the pe-

tition for rehearing filed by the Secretary of the

Interior be and it is hereby denied.

ENTERED BY ORDER

OF THE COURT

/s/ [Illegible]

Clerk

* The Honorable Richard A. Enslen, United States District

Judge, Western District of Michigan, sitting by designation.

26a

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Action No. C80-933A

HOLMES LIMESTONE Co., ET AL., PLAINTIFFS

CreciL B. ANDRUS, Er AL., DEFENDANTS

[Oct. 7, 1980]

MEMORANDUM OPINION AND ORDER

ALDRICH, J.

Plaintiff Holmes Limestone Company (“Holmes“)

seeks a declaratory judgment and a permanent in-

junction against defendant Secretary of the United

States Department of the Interior (“Secretary”) to

prevent the enforcement against Holmes, with re-

spect to two pieces of property in Holmes County,

Ohio, of § 522(e)(5) of the Surface Mining Act of

1977, 30 U.S.C. 5 1272 (e) (5). Section 522 (e) (5)

provides, in pertinent part:

After August 3, 1977, and subject to valid

existing rights, no surface coal mining opera-

tions except those which exist on August 3, 1977,

shall be permitted—

(5) within three hundred feet from any occu-

pied dwelling, unless waived by the owner there-

of, nor within three hundred feet of any public

building, school, church, community, or institu-

tional building, public park, or within one hun-

dred feet of a cemetery.

27a

The Secretary has defined a “cemetery” as “any

area of land where human bodies are interred”. 30

C.F.R. 761.5.

The case was consolidated and advanced pursuant

to Rule 65(a)(2) of the Federal Rules of Civil Pro-

cedure, and heard together with Holmes’ motion for

a preliminary injunction. A preliminary injunction

was issued on June 30, 1980, pending this final de-

termination.

This Court now finds that it lacks jurisdiction to

review the definition of the word “cemetery” as de-

fined by the Secretary; that § 1272 (e) (5) and 30

C.F.R. 761.5 do not constitute a taking of the plain-

tiff’s property in contravention of the Fifth Amend-

ment; and that plaintiff lacks standing to assert any

Tenth Amendment right the State of Ohio may have

with respect to the regulation of its land by § 1272

(e) (5).

The Court therefore orders that the preliminary

injunction be dissolved and that judgment be en-

tered for the defendant in accordance with the fol-

lowing Memorandum.

Facts

The facts in this case are not in dispute.

In 1977, Congress enacted the Surface Mining Con-

trol and Reclamation Act, 30 U.S.C. § 1201, et seg.,

with an express two-fold purpose—(1) the optimal

retrieval of a valuable source of energy, consistent

with (2) the protection of society and the environ-

ment. The Act established a two-tier regulatory pro-

gram. The first tier is an interim program; the

second tier is a permanent program. The interim

program remains in effect until a state receives an

approved program, or failing federal approval, until

the federal government implements a federal program

for that state. Sections 503, 504, 30 U.S.C. 88 1253,

1254. During the interim program, the Secretary

and the states share joint responsibility for enforce-

ment of the regulatory program. Ohio’s program is

currently undergoing review by the Department of

Interior’s Office of Surface Mining Reclamation and

Enforcement (OSM). Hence, Ohio is operating under

the interim program, issuing permits under its exist-

ing laws, pursuant to Section 502(a) of the Act, 30

U.S.C. 1252(a).

Ohio Administrative Code, § 1501:13-19-03(c) is

identical to Section 522 (e) (5) of the Surface Mining

Act. However, Ohio has no statutory definition of the

word “cemetery”.

Plaintiff Holmes Limestone employs about eighty

people has been engaged in strip mining in Holmes

County, Ohio, and surrounding counties, for more

than thirty years. Holmes County is characterized by

a terrain of rolling hills, farmed in large part by the

Amish. The Amish live simply, eschewing most mod-

ern conveniences, and are particularly careful stew-

ards of their lands.

Holmes has in the past strip mined on a number of

Amish farms, and has earned an impeccable reputa-

tion for the care which it has taken in mining within

a few feet of barns, orchards, duck ponds, and

cemeteries.

Holmes now holds two leases—one to strip mine the

coal on Noah Beachy’s farm, and the other to strip

mine the coal on Melvin Raber’s farm. Both Beachy

and Raber are Amish farmers who owned their land

in fee prior to the passing of the Surface Mining Act.

Both leases to Holmes were executed after the passage

of the Surface Mining Act. In September of 1979,

29a

the Ohio Department of Natural Resources granted

Holmes a permit to strip mine coal on Noah Beachy’s

property on the condition that it not strip mine closer

than one hundred feet from the private family burial

site. The burial site is a fenced enclosure atop a roll-

ing hill, not open or accessible to the general public,

which includes the graves of some thirty of Noah

Beachy’s ancestors and relatives. Holmes began strip

mining on both farms, although it has not, as yet,

reached the terrain near the burial site on the Raber

property.

In December of 1979, Holmes applied to the Ohio

Department of Natural Resources for an amendment

to its permit, to allow it to strip mine coal in the area

between twenty-five feet and one hundred feet from

the Beachy family burial site.

On January 4, 1980, the Ohio Department of Nat-

ural Resources denied the application on the ground

that the mining would occur within one hundred feet

of a “cemetery”, prohibited by Ohio Strip Mining

Regulation 1501:13-19-03 (e), which is identical to 30

U.S.C. § 1272 (e) (5). Holmes appealed to the Ohio

Reclamation Board of Review which held a hearing,

and, on March 27, 1980, the Board reversed the Ohio

Department of Natural Resources on the ground that

the private family burial site on the Beachy farm was

not a “cemetery” within the meaning of Ohio Strip

Mining Regulation 1501:13-19-03(c). The Depart-

ment of Natural Resources was directed to issue the

amended permit. Before this action could be taken,

the Chief of that Division was advised by employees

of the defendant Secretary of the United States De-

partment of Interior not to issue the permit, threat-

ening a cut-off to Ohio of federal funds if the permit

were issued, as well as action against plaintiff Holmes

30a

Limestone Company if mining activities were con-

ducted within one hundred feet of the Beachy burial

site.

On May 19, 1980, the Chief of the Division’s appeal

requesting a stay of the Board’s decision was denied,

and he was ordered by the Court of Common Pleas of

Franklin County to issue the permit. Plaintiff Holmes

began strip mining coal in the area between twenty-

five and one hundred feet from the Beachy burial

site. On June 6, 1980, plaintiff filed its complaint in

this case, seeking a declaratory judgment and a per-

manent injunction against the defendant Secretary of

the United States Department of the Interior. On

June 11, 1980, Holmes was cited by the Interior

Department’s Office of Surface Mining for violation

of Section 522 (e) (5) of the Surface Mining Act, 30

U.S.C. § 1272 (e) (5). Holmes then ceased all mining

operations in the disputed area.

Undisputed testimony established that the area in

question includes about .9 acres, and should produce

approximately 6,000 to 8,000 tons of coal, for which

Mr. Beachy would receive approximately $12,000 in

royalties. It was further established that if the coal

were not mined in concert with the strip mining cur-

rently in progress, it would be economically and physi-

cally infeasible to come back and retrieve it. The

coal would be forever lost. Photographs demonstrated

the quality of Holmes care in reclamation on other

similar property—reclamation that proceeds as the

mining operation progresses from one cut to the next.

The evidence also demonstrated that after reclama-

tion it is impossible to tell where the strip mining,

closer than one hundred feet from a family burial

site, took place. Testimony of a number of Holmes’

officers and employees was persuasive in support of

3la

Holmes’ reputation for care and concern about all

aspects of its operation.

Mr. Beachy’s affidavit, which strongly asserted his

desire that Holmes be allowed to continue the opera-

tion around the burial site, was given considerable

weight by the Court, in view of defendant’s counsel’s

representation that he had met with Mr. Beachy, that

the affidavit faithfully represented Mr. Beachy’s point

of view, and that defendant’s counsel felt no need to

take a deposition or otherwise cross examine the

Amish farmer whose religious beliefs prohibited him

from appearing in open court.

Jurisdiction

The Secretary argues that this Court lacks juris-

diction for two reasons: first, that Holmes has failed

to exhaust its administrative remedies; and second,

that pursuant to § 526(a)(1), 30 U.S.C. § 1276(a)

(1) of the Act, Holmes’ challenge to the validity of

the Secretary’s regulation defining the word “ceme-

tery” could have been brought only in the District

Court for the District of Columbia, and then only

within sixty days from the date of the promulgation

of the regulation.

Holmes properly filed its complaint in this Court

on June 6, 1980. Five days later, the Office of Surface

Mining issued a notice of violation against Holmes

for mining within one hundred feet of a cemetery on

the Noah Beachy property. It is the Secretary’s

argument that once the notice of violation was issued,

Holmes, through § 525, 30 U.S.C. § 1275 of the Act,

came under the jurisdiction of the Department of the

Interior. Section 525 provides, generally, for admin-

istrative review by the Secretary of orders and no-

tices issued to permittees.

32a

It is clear, however, that at the time Holmes filed

its complaint, there had been no agency action requir-

ing Holmes to seek relief through administrative

channels; hence, there were no administrative reme-

dies to exhaust. The subsequent notice of violation

could not serve to divest this Court of its jurisdiction.

However, this Court does lack jurisdiction to review

Holmes’ challenge to the validity of the regulations

promulgated by the Secretary. This Court must con-

clude that the only proper forum for such review is

the District Court for the District of Columbia. Sec-

tion 526 (a) (1), 30 U.S.C. § 1276 (a) (1) 30 U.S.C.

§ 1276 (a) (1), states in part:

.. . Any action by the Secretary promulgating

national rules or regulations . . . shall be subject

to judicial review in the District of Columbia

Circuit. [sic] Any other action constituting rule-

making by the Secretary shall be subject to judi-

cial 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 in-

consistent with law. A petition for review of any

action subject to judicial review under this sub-

section 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....

There can be no doubt but that the definition of a

“cemetery” is a national rule, intended for national

application. As such, its validity is subject to review

only in the District Court for the District of Colum-

33a

bia. It matters not that this Court might doubt the

wisdom of the regulation, or the breadth of the defini-

tion '; nor does it matter that this Court might ques-

tion the adequacy of the administrative process that

led to its promulgation. This Court siraply lacks juris-

diction to consider those questions. In Re Surface

Mining Regulation Litigation, 456 F.Supp. 1301, 1307

(D. D.C. 1978).

Statutory schemes for judicial review similar to

those found in § 526 (a) (1), 30 U.S.C. § 1276 (a) (1)

of the Surface Mining Act are not uncommon. See,

e.g., 42 U.S.C. § 7607 (b) (1) (Clean Air Act). The

Congressional intent is to provide for judicial review

of administrative regulations of national application

in one specific court, and within a relatively short

period of time (30 to 60 days) after their promulga-

tion. Thereafter, the validity of the application of

the regulation may be left to the geographically ap-

propriate United States District Courts. So long as

the opportunity for testing the validity of the regula-

tion has been provided, persons against whom the

regulation is later applied may be precluded from

raising the validity of the regulation as a defense,

without violation of due process. Courts have con-

sistently reached this conclusion in both criminal ad-

ministrative enforcement cases, Yakus v. United

States, 321 U.S. 414, 443-44 (1944) ; United States v.

Adamo Wrecking Co., 545 F.2d 1,5-6 (6th Cir. 1976),

1 See Marietta Coal Co. v. Office of Surface Mining Reclama-

tion and Enforcement, Docket No. IN-12-R (May 21, 1981),

appeal pending to Interior Board of Surface Mining and

Reclamation Appeals, IBSMA No. 80-42 (private burial plot

abandoned since the 19th century not considered a “cemetery”

within the meaning of § 522(e) (5), 30 U.S.C. § 1272(e) (5)

of the Act).

34a

rev'd on other grounds, 434 U.S. 273 (1978); and in

civil administrative enforcement cases, Getty Oil Co.

v. Ruckelshaus, 467 F.2d 349 (3rd Cir. 1972), cert.

denied, 409 U.S. 1125 (1973); Union Electric Co. v.

EPA, 515 F.2d 206, 220 (8th Cir. 1975), aff'd, 427

U.S. 246 (1976).

A fortiori must this principle apply in a case such

as this one, where Holmes seeks a declaratory judg-

ment against an anticipated civil administrative en-

forcement action. It must be concluded that §526(a)

(1) requires Holmes’ challenge to the validity of the

Secretary’s regulation, i.e., the definition of “ceme-

tery” to have been brought in the District Court for

the District of Columbia, and that this requirement

does not violate constitutional due process.

Fifth and Tenth Amendment Issues

While this Court has no jurisdiction to review the

validity of the national regulation, it plainly has

jurisdiction to review constitutional challenges to the

application of the Act, and the regulations promul-

gated thereunder. Section 526(a)(1), 30 U.S.C.

§ 1276(a) (1).

Holmes challenges the constitutionality of the ap-

plication of the Act to itself, arguing, in reliance

upon Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922), that enforcement of 5522 (e) (5) constitutes

a taking of its property without just compensation,

in violation of the Fifth Amendment.

Since Holmes acquired its interest in the property

in question two years after the enactment of the Sur-

face Mining Act, with full knowledge of the statutory

prohibitions, it cannot now assert that the Act con-

stitutes a taking of its property. Even assuming that

Holmes could raise the constitutional claims of a

35a

third party (on a Jackson v. Barrows, 346 U.S. 249

(1953) theory), it is clear that no taking is involved.

As pointed out in Penn Central Transportation Co.

v. City of New York, —— U.S. ——, 98 S.Ct. 2646

(1978) :

. . . In deciding whether a particular govern-

mental action has effected a taking, the Court

focuses rather both on the nature and extent of

the interference with rights in a parcel as a

whole. ... Id. at 2663.

In the instant case, the Surface Mining Act merely

regulates the use of the land. Limiting the proximity

of surface mining operations to a cemetery protects

the cemetery from the hazardous effects of surface

mining and is plainly within the purpose and intent

of the Act. The land in question can still be used for

all the purposes for which it was used prior to the

passage of the Act; the only excluded use is the sur-

face mining of coal. Such a limitation on land use

does not rise to a “taking” of constitutional magni-

tude, and the remaining uses distinguish this case

from Pennsylvania Coal Co. supra, where the statute

in question served to deprive the owner of the total

use of its property interest.

Finally, Holmes challenges the constitutionality of

the Act as violating the rights of the State of Ohio

under the Tenth Amendment. Ohio has not challenged

the Act in this Court, and it is quite clear that Holmes

has no standing to assert the rights of the State of

Ohio under the Tenth Amendment. Tennessee Elec-

trical Power Co. v. TVA, 306 U.S. 118 (1939).

It is indeed regrettable that, in this case, the law

falls so harshly on Holmes, a company which, without

doubt, successfully strip mines with meticulous at-

36a

tention to environmental concerns. However, this

Court must, reluctantly, dissolve its preliminary in-

junction and enter judgment for the defendant.

IT IS SO ORDERED.

/s/ Ann Aldrich

United States District Judge

. 8. coveenwent paimtine orrice; 1902 366801 797

uonisoddg n

0 —

Supreme Court, U.S.

| FILED

No. 81-1585 | APR 28 60

In the Supreme Court of the Unit tes 1

October Term, 1981

JAMES G. WATT, Secretary of the Interior, et al.,

Petitioners,

VS.

HOLMES LIMESTONE CO,, et al.

Respondents.

On PetiTIon For A Writ or CERTIORARI

To THE UNITED STATES Court or APPEALS

For THE Stern Cmcurr

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

— CRITCHFIELD, —

& JOHNSTON

J. C. Jonnston III

J. DoucAs Dnus HAL

Counsel of Record

225 North Market Street

P. O. Box 488

Wooster, Ohio 44691

(216) 264-4444

Counsel for Holmes Limestone Co.

CueEsTEeR, HorFMAN & WILLCOX

Rosert D. Zrrxo

Counsel of Record

8 East Broad Street

Columbus, Ohio 43215

(614) 221-4000

Counsel for Ohio Mining and

Reclamation Association

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

T 1

STATEMENT OF THE CASE .................-cscscscscosecoseecesseees 2

SUMMARY OF ARGUMENT. ———— 3

ARGUMENT — 5

I. The decision of the Court of Appeals is not in

conflict with a decision of any other Court

c . 5

II. The decision of the Court of Appeals does not

represent a departure from the accepted and

usual course of judicial proceedings ................ 6

III. Petitioners incorrectly argue that the decision

of the Court of Appeals frustrates congres-

r 9

. — 15

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

— aT ae TS 3-4, 7

Adamo Wrecking Co. v. United States, 434 US. 275

(1978) <a

Caminetti v. United States, 242 U.S. 470 (1917) ............ 10

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402 (1971) ET RT a 7

Deering Milliken, Inc. v. OSHRC, 630 5 20 1094 (5th

r eT eS eT PROD. 7,13

Gardner v. Alabama Department of Pensions & Se-

curity, 385 F.2d 804 (5th Cir. 1967), cert. den., 389

9 — — 11

Getty Oil Co. v. Ruckleshaus, 467 F.2d 349 (3d Cir.

1972), cert. den., 409 U.S. 1125 (1973) .................... 11, 12

Hodel v. Indiana, 452 U.S. 314 (1981) ...... . 2

Hodel v. Virginia Surface Mining & Reclamation Ass’n,

452 U.S. 264 (1981) 2

Pierson v. United States, 428 F. Supp. 384 (D. Del.

1977) . 7

Reading Anthracite v. Office of Surface Mining, No.

80-0667 (E.D. Pa. Oct. 8, 1980) ——.—.— 5

Rusk v. Cort, 369 U.S. 367 (1962E——— . 4,7

Standerfer v. United States, 447 U.S. 10 (1980) 10

Union Carbide Corp. v. Andrus, 13 E.R.C. 1481 (S.D.

. 5

United States v. Shreveport Grain & Elevator Co., 287

r 10

Wadley Southern R. Co. v. Georgia, 235 U.S. 651

(1915) 14

Yakus v. United States, 321 U.S. 414 (1944) 10, 11, 14

Constitutional Provisions, Statutes and Rules

./ / ß / / x ů j — 11

5 U.S. C. Sections 701, et seg. ... : — 2, 9

e f 2, 9

28 U.S.C. Section 1346 e 2

28 U.S.C. Sections 2201 and 2202. ..... . . . 2, 9

Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. Sections 1201, et seq.:

Section 503, 30 U.S.C. Section 1253333 13

Sections 515 and 516, 30 U.S.C. Sections 1265 and

re 13

Section 526 (a) (1), 30 U.S.C. Section 1276 (a) (1)

— 2, 3, 4, 9, 12, 14

.. 14

LL | re 14

Section 204(d) of the Emergency Price Control Act

of January 30, 1942 11

ß 0 . 2

Rules of the Supreme Court, Rule 17... 3, 5, 6

Other

Section 426 (a) (1), S. 7, Reported in S. Rep. 95-128,

LI ee 9

Section 526(a)(1), H. R. 2, Reported in H. R. Rep.

95-218, 95th Cong., Ist Sess., at 4 y

H. R. Rep. 95-493 (Conference Committee Report),

LX ee 9

No. 81-1585

In the Supreme Court of the United States

October Term, 1981

JAMES G. WATT, Secretary of the Interior, et al.,

Petitioners,

vs.

HOLMES LIMESTONE CoO., et al.,

Respondents.

On Petition For A Writ or CERTIORARI

To THE UNITED STATES Cour OF APPEALS

For THE SrxtH CIRCUIT

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

STATEMENT

Respondents are satisfie with the questions presented,

list of all parties to the proceeding, citations to the opinions

and judgments delivered below, jurisdictional grounds, and

statutes involved, as set forth in the Petition for Certiorari

and they will not be repeated herein.

Respondent, Holmes Limestone Co., has no parent,

subsidiary, or affiliate corpor@tions, except for one wholly

owned subsidiary. Respondent, Ohio Mining and Reclama-

tion Association, has no parent, subsidiary or affiliate cor-

porations.

STATEMENT OF THE CASE

The statement of the case contained in the Petition

for Certiorari contains no marked inaccuracies but is in-

complete and will be supplemented herein.

The jurisdiction of the district court was invoked not

only under Section 526(a)(1) of the Surface Mining Con-

trol and Reclamation Act of 1977, 30 U.S.C. Section 1276

(a) (1), which is set forth in the petition. Other jurisdic-

tional bases for this action included the general federal

question statute, 28 U.S.C. Section 1331, the declaratory

judgment statute, 28 U.S.C. Sections 2201 and 2202, and the

Administrative Procedure Act, 5 U.S.C. Sections 701, et

seq. See also 28 U.S.C. Section 1346.

The substance of the complaint was not limited to a

facial challenge to the regulation in question, 30 C.F.R.

761.5. While that was an important aspect of the com-

plaint, additional and alternative prayers for relief in-

cluded finding the regulation arbitrary, capricious and in-

consistent with the Act as applied to Respondents, that

the regulation be construed to avoid a substantial constitu-

tional question, that the underlying statute, Section 522

(e) (5), 30 U.S.C. Section 1272 (e) (5), be construed to be

inapplicable to private family burial plots, and that if the

regulation and statute were found applicable, that they

be declared unconstitutional as applied to Respondents.’

The district court decided that it did not have juris-

diction to review the regulation based upon its construction

of Section 526(a)(1) (App. D, 3la-34a). The district court

1. Cf. Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264, and 297 n.40 (1981), and Hodel v. Indiana,

452 U.S. 314, and 335 n.20 (1981), holding the Act is facially

—— but reserving consideration of specific applications

ruled against Respondents on the constitutional issues (App.

D, 34a-36a). The court of appeals reversed based upon

its construction of Section 526(a)(1) and did not reach

the constitutional questions (App. A, 12a-16a).

SUMMARY OF ARGUMENT

This case does not fall within any of the considerations

for review on certiorari as set forth in Rule 17.1 of the

Rules of the Supreme Court. The decision of the court

of appeals is not in conflict with the decision of any other

federal court of appeals on the same matter. Indeed, this

is the first court of appeals to address the question and

there are no other court of appeals decisions on point. The

only contrary cases cited by Petitioners are two unreported

district court decisions. The Petitioners have suggested a

potential conflict in the circuits. That is an extremely

speculative proposition based upon allegations which are

not part of the record in this case. It is based upon two

assumptions, that there will be substantial litigation on

this question in the future and that other courts of ap-

peals will reach decisions contrary to the court of appeals

decision in this case, neither of which assumption may come

to pass. This Court should not expend its scarce resources

on the very first case to address a question which may

never arise again. If the matter does arise again, this

Court will have ample opportunity for review in the

future after the benefit of further analysis by lower courts.

The decision of the court of appeals in the instant case

does not represent a departure from the accepted and

usual course of judicial proceedings, which is another con-

sideration for certiorari under Rule 17.1. Instead, the

decision below represents a conventional decision follow-

ing closely this Court’s decision in Abbott Laboratories v.

Gardner, 387 U.S. 136, 140 (1967), in which this Court held

“that judicial review of a final agency action . . will not

be cut off unless there is persuasive reason to believe that

such was the purpose of Congress.” See also Rusk v. Cort,

369 U.S. 367, 380 (1962), which held that judicial review

of agency action will not be foreclosed “in the absence of

clear and convincing evidence that Congress so intended.”

The decision below also recognized the gross unfairness

of the attempted limitation of judicial review advanced

by Petitioners along with the serious constitutional ques-

tion which would be presented by such an interpretation.

The Petitioners incorrectly argue that the decision of

the court of appeals frustrates Congressional intent. Both

the House and Senate versions of the predecessor to Section

526 (a) (1) provided that judicial review was available onl

in the United States Court of Appeals for the District of

Columbia.” (Emphasis added.) The version reported by

the Conference Committee and enacted by Congress de-

leted the word “only” and made other changes. If Con-

gress had intended review to be limited only to the District

of Columbia it would not have deleted language so pro-

viding. Cases cited by Petitioners for the proposition that

statutes designating a forum for judicial review impliedly

make an exclusive designation are clearly distinguishable

from the case at hand as well as inconsistent with the de-

cisions of this Court in Abbott Laboratories and Rusk. A

common sense interpretation of the statute in question is

that it permits but does not require a pre-enforcement re-

view of regulations in an abstract setting but also permits

adjudication of particular cases in other courts.

ARGUMENT

I. THE DECISION OF THE COURT OF APPEALS

IS NOT IN CONFLICT WITH A DECISION OF

ANY OTHER COURT OF APPEALS

Rule 17.1 of the Rules of this Court sets forth general,

although not exclusive, considerations governing review on

certiorari. The principal consideration set forth therein is

whether the decision in question has created a conflict

with the decision of another federal court of appeals. This

consideration is not met in the instant case. Indeed, there

are no other federal court of appeals decisions on the point.

The petition for certiorari cites only two decisions con-

cerning the matter set forth in the questions presented.“

Apparently realizing this shortcoming, the Petitioners

argue that the Secretary of the Interior “is currently en-

gaged in a significant revision of the regulations and an-

ticipate substantial litigation when the revised regulations

are promulgated.” (Petition, 9). This clearly goes outside

the record of the instant case and the speculative nature of

this prediction is apparent on its face.

The petition goes on to recite that the decision below

will allow potentially conflicting interpretations of this

law “inevitably calling for resolution of differing views

by this Court.” (Petition, 9). Such an eventuality is hardly

inevitable. The future litigation itself is hardly a foregone

conclusion and the suggestion that this litigation will result

in conflicting interpretations is speculation and guesswork.

This Court rarely grants a petition for certiorari to the

court of appeals which is the first to address a given ques-

2. Reading Anthracite v. Office of Surface Mining, No. 80-

0667 (E.D. Pa. Oct. 8, 1980); Union Carbide Corp. v. Andrus, 13

E.R.C. 1481, 1489 (S.D. W.Va. 1979)

tion. This Court has properly adhered to the view, con-

templated in Rule 17.1, that only matters receiving more

frequent consideration in the lower courts are worthy

of this Court’s review. This Court should not expend

its scarce judicial resources to decide an issue which could

possibly never arise again. If the matter does arise again,

as Petitioners suggest, then there will be ample oppor-

tunity to address the question in the future, with the

benefit of additional lower court analyses.

It is also important to note that the facts found in

the instant case are extremely narrow and unlikely to

recur. This case arose out of a rural county in Ohio and

concerned coal surface mining on the farms of the Amish

which contain private family burial plots. It is difficult

to conceive of a narrower factual situation and equally hard

to think of this peculiar factual situation arising again.

This case simply is not of great public interest and does not

present an appropriate case for this Court’s consideration

of the underlying jurisdictional question.

II. THE DECISION OF THE COURT OF APPEALS

DOES NOT REPRESENT A DEPARTURE FROM

THE ACCEPTED AND USUAL COURSE OF JU-

DICIAL PROCEEDINGS

The only other conceivable consideration found in Rule

17.1 which could be applicable to the instant case is whether

the decision of the Court of Appeals “has so far departed

from the accepted and usual course of judicial proceed-

ings . . . as to call for an exercise of this Court's power

of supervision.” This is clearly inapposite here. The

decision below represents a well-reasoned adherence to

previous decisions of this Court.

The general question presented in this case can be

stated as follows: Should a Congressional enactment

which, at best, is ambiguous concerning limitation of fed-

eral court review of administrative action be construed

narrowly in order to limit such review? This Court has

forcefully answered this question several times and adopted

a rule of statutory construction requiring a showing of

“clear and convincing evidence” of a contrary legislative

intent to support restricting access to judicial review.

Rusk v. Cort, 369 U.S. 367, 380 (1962).

This Court held in Abbott Laboratories v. Gardner,

387 U.S. 136, 140-41 (1967):

„ . . à survey of our cases shows that judicial re-

view 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. [Ci-

tations omitted.] Early cases in which this type of

judicial review was entertained, . . have been rein-

forced by the enactment of the Administrative Pro-

cedure Act, which embodies the basic presumption f

judicial review. The legislaiive material elucidat-

ing that seminal act manifests a congressional intention

that it cover a broad spectrum of administrative ac-

tions, and this Court has echoed that theme by noting

that the Administrative Procedure Act’s ‘generous re-

view provisions’ must be given a ‘hospitable’ interpre-

tation...”

These decisions have been followed by this Court and

by numerous lower courts. E.g., Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971);

Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1099 (5th

Cir. 1980); Pierson v. United States, 428 F. Supp. 384, 389

n.11 (D. Del. 1977).

The decision of the court of appeals in the instant case

represents no more than an application of this well estab-

lished rule of construction to a relatively new statute. This

cannot be characterized as a departure from the accepted

and usual course of judicial proceedings.

The unfairness and possible constitutional infirmity

of the position urged by Petitioners was well presented by

Justice Powell in his concurring opinion in Adamo Wreck-

ing Co. v. United States, 434 U.S. 275, 289-91 (1978).

Justice Powell expressed “no considered judgment” on

the constitutionality of the statute in question, since the

issue had not been raised by the Petitioner, but seriously

questioned it and added:

“It is also totally unrealistic to assume that more

than a fraction of the persons and entities affected by a

regulation—especially small contractors scattered

across the country—would have knowledge of its

promulgation or familiarity with or access to the Fed-

eral Register.”

Id. at 290.

Similarly, Respondent, Holmes Limestone Co., is a

small company mining almost exclusively in rural Holmes

County, Ohio, and largely on farms of the Amish. It would

be absurd to require it to challenge the peculiar application

of a narrow regulation to an even narrower fact pattern

within 60 days after promulgation of the regulation in the

District Court for the D«ivict of Columbia. A logical

conclusion of Petitioner’s position herein is that such

regulations cannot be reviewed and presumptively arbi-

trary and capricious regulations will be permitted to go

unchallenged.

This Court should let stand the decision below which

properly reflects the presumption this Court has established

in favor of access to judicial review of agency action. This

is consistent with the Administrative Procedure Act, 5

U.S.C. Sections 701 et seq., the general federal ques-

tion jurisdiction statute, 28 U.S.C. Section 1331, and the

declaratory judgment statute, 28 U.S.C. Sections 2201 and

2202.

III. PETITIONERS INCORRECTLY ARGUE THAT

THE DECISION OF THE COURT OF APPEALS

FRUSTRATES CONGRESSIONAL INTENT

Section 426(a)(1) of S. 7 of the 95th Congress was

the direct predecessor of Section 526(a)(1). This section

read, in part, as follows:

“Any action by the Secretary promulgating stan-

dards . . . shall be subject to judicial review only in the

United States Court of Appeals for the District of

Columbia.”

Section 426(a)(1), S. 7, reported in S. Rep. 95-128,

95th Cong., Ist Sess., at 41 (emphasis added).

Section 526(a)(1) of H. R. 2 of the 95th Congress

was a direct predecessor of Section 526(a)(1). This sec-

tion read, in part, as follows:

„ .. any action by Secretary promulgating stan-

dards shall be subject to judicial review only

in the United States Court of Appeals for the District

of Columbia.”

Section 526 (a) (1), H. R. 2, reported in H. R. Rep. 95-218,

95th Cong., Ist Sess., at 46 (emphasis added).

These two provisions were significantly changed by

the Conference Committee. Most importantly, for pur-

poses of this case, the word “only” was deleted and the

present text of Section 526 (a) (1) was adopted. See H. R.

Rep. 95-493 (Conference Committee Report), 95th Cong.,

lst Sess., at 75. The only possible Congressional intent

which can be divined from this is that Congress intended

that such action can be reviewed in the District of Colum-

bia but also in other courts. The purpose of the statute

thus becomes to vest the District of Columbia court with

jurisdiction over a case with which it might otherwise have

an insufficient nexus to support jurisdiction or venue.

Nowhere in the legislative history of the Act is there

any expression of Congressional intent to restrict judicial

review of regulations to the District Court for the District

of Columbia. The legislative history cited by Petitioners

in support of the proposition that Congress desired “to

establish uniform national performance standards for the

surface mining industry” (Petition, 9-10), refers to a

desire for a national surface mining law and has nothing

to do with judicial review of regulations’.

The Petitioners’ reliance on Yakus v. United States,

321 U.S. 414 (1944), is wholly misplaced. The statute

under review in Yakus provided that a specific court “shali

3. The Petitioners suggest that committee changes made

without explanation are not a reliable guide to statutory in-

terpretation. In this case there is no doubt regarding Congres-

sional intent. The plain meaning of a statute cannot be nullified

by an omission in its legislative history. Standerfer v. United

States, 447 U.S. 10, 20 n.12 (1980). See also United States v.

Shreveport Grain & Elevator Co., 287 U.S. 77, 83 (1932):

Reports [of legislative committees] are given consideration in

determining the meaning of a statute, but only where that meaning

is doubtful. They cannot be resorted to for the purpose of con-

struing a statute contrary to the natural import of its term

nor] to create an ambiguity.” See also Caminetti v. United

tates, 242 U.S. 470, 490 (1917): Reports to Congress ac-

companying the introduction of proposed laws may aid the

courts in reaching the true meaning of the legislature in cases

of doubtful interpretation. But... when words are free from

doubt, they must be taken as the final expression of the legislative

intent and are not to be added to or subtracted from by considera-

tions drawn . . from any extraneous source. In other words, the

language being plain, and not leading to absurd or wholly im-

practicable consequences, it is the sole evidence of the ultimate

legisiative intent.”

have exclusive jurisdiction to determine the validity of

any regulation or order...” Section 204(d) of the Emer-

gency Price Control Act of January 30, 1942, quoted at

321 U.S. at 429 (emphasis added). Faced with such a clear

statute, this Court reasonably construed it to preclude

review in other courts. That statute was also enacted on

an emergency basis and was supported, at least in part, by

the war powers granted to Congress under Article I, Sec-

tion 8 of the Constitution. The difference between the

statute construed in Yakus and Section 526 (a) (1) is like

the difference between night and day.

The Petitioners have also cited Gardner v. Alabama

Department of Pensions & Security, 385 F.2d 804, 810 (5th

Cir. 1967), cert. den., 389 U.S. 1046 (1968), and Getty Oil

Co. v. Ruckleshaus, 467 F.2d 349, 356 (3d Cir. 1972), cert.

den., 409 U.S. 1125 (1973), as support for the proposition

that Congress need not use the word “exclusive” in a

statute for providing an exclusive forum for judicial re-

view (Petition, 11). These cases do not support the Pe-

titioners’ position in this case.

In Gardner, the court was concerned with the review

of a Social Security regulation which had been contested

by an aggrieved party by both filing a complaint in the

relevant district court and filing a petition for review of

the regulation in the relevant court of appeals. Tiie Fifth

Circuit held that the district court did not have jurisdic-

tion to review the regulation because exclusive jurisdic-

tion had been placed in the respective courts of appeals.

This is an unsurprising holding and is consistent with other

statutory schemes which place review of agency action

directly in the courts of appeals, such as review of orders

of the National Labor Relations Board. This has nothing

to do with the issue at hand and in no way presents the

unfairness of Petitioners’ position here, which seeks to limit

review to only one specific court in the entire nation and

not to a particular type of court which is located through-

out the country.

The decision in Getty Oil is similarly distinguishable

insofar as it held that in the statute under review Congress

had manifested a clear intent to limit judicial review to a

particular forum“ There is no such clear intent in the

instant case.

The Petitioners also argue that Section 526 (a) (1)

carefully sets forth a scheme of centralized judicial review

under three different circumstances, and that the decision

of the court of appeals “turned this careful legislative

effort on its head by reading it to give centralized review

in a single district court only to the Secretary’s least sig-

nificant regulatory actions, and to subject those with a

national scope to the risk of conflicting interpretations in

a variety of jurisdictions.” (Petition, 10). This is simply

incorrect.

The statute mentions review in three circumstances.

The third sentence provides that any action other than

promulgating national rules or regulations “shall be subject

to judicial review only by the United States District Court

for the District in which the surface coal mining opera-

tion is located.“ The same rulemaking activity of the

Secretary could affect surface mining operations in

a number of judicial districts and, since review would

be appropriate in each district in which the surface

mining operation is located, such action of the Secretary

is subject to conflicting, decentralized review. Even

4. The statute construed provided that a review petition

“may be filed only in the United States Court of Appeals

467 F. ad at 353 n.4 (emphasis added).

review of the Secretary’s approval or disapproval of a

state program, for which the first sentence provides judicial

review in the district court including the capital of the

state whose program is at issue, could lead to conflicting

decisions insofar as the same standard applied by the

Secretary in approving or disapproving a state program

could be treated differently by different district courts.“

Finally, the second sentence of the statute, at issue here, is

more plausibly construed to permit but not require pre-

enforcement review of a particular regulation in the Dis-

trict Court for the District of Columbia but to also allow

review elsewhere of specific application of such regulations

to a peculiar factual situation.“ Thus, the statute itself on

its face refutes the Petitioners’ contention.

The text of the statute is also instructive insofar as

the third sentence says that the rulemaking there at issue

“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.“ (Emphasis added). While

Petitioners try to make light of the contradistinction of

inserting the word “only” in this sentence of the statute

while omitting the word “only” in the second sentence of the

statute (indeed, it was deleted), it cannot be gainsaid that

Congress knows how to be specific in limiting judicial

review and if it had wished to do so in the second sentence

of the statute, it would have.

5. See Sections 515 and 516, 30 U.S.C. Sections 1265 and

1266, which specify performance standards for state and federal

programs under the Act and Section 503, 30 U.S.C. Section 1253,

which requires a state program to have the capability of carrying

out the provisions of the Act and meeting its purposes.

6. A pre-enforcement judicial review provision, as distinct

from review in the context of a specific case, would not be unique

to this statute. See, eg., Deering Milliken, supra, 630 F.2d at

1099.

Petitioners’ concern for centralized judicial review is

grossly exaggerated.’ Almost every statute Congress en-

acts is subject to conflicting interpretations by courts

throughout the nation. To the extent this presents a prob-

lem, it is one our judicial system is capable of resolving

without the drastic step of effectively precluding judicial

review.

7. With regard to the 60 day limitation on judicial review

contained in Section 526 (a) (1), the court of appeals did not be-

labor that issue as Respondents were clearly within the 60 day

limitation. App. A, 15a; App. D, 29-30 a. The appeal to the

Common Pleas Court of Franklin County on May 19, 1980 re-

sulted from a letter from the Office of Surface Mining and threat-

ening enforcement action against Respondent. This was the Re-

spondent's first indication that the Office of Surface Mining would

not deem the outcome of the Ohio courts determinative of this

issue. The letter from the Office of Surface Mining was dated

April 16, 1980, although actual notice of this was not received by

Respondent until after that date.

8. Petitioner refers to the fact that centralized review is

common, citing the Clean Air Act and Voting Rights Act. (Pe-

tition, 13 n.15). It should be noted that in stark contrast to the

e of Section 526(a)(1), the Clear Air Act, 42 U.S.C. Sec-

tion 7607 (b) (1), provides that [a] petition for review. . may

be filed only in the United States Court of Appeals for the District

of Columbia.” (Emphasis added). As Yakus demonstrates, Con-

gress does know how to make review exclusive when it so

chooses. The Voting Rights Act provision cited, 42 U.S.C. Sec-

tion 1973c, applies to declaratory judgment actions filed by states

or political subdivisions and is not at all analogous to the instant

case. By whatever method a right to judicial review exists, that

right must be substantial, adequate and truly available. If the

right is illusory, it does not exist. Wadley Southern R. Co. v.

Georgia, 235 U.S. 651, 661 (1915).

CONCLUSION

There is no conflict in the circuits and the dearth of

litigation on the questions presented indicates that review

in this case would be, at best, premature. The decision of

the court of appeals is a conventional application of a

well-established rule of statutory construction which per-

mits full access to federal court review by aggrieved par-

ties, regardless of their size, power or geographic location.

The construction of the statute by the court of appeals is

well reasoned and avoids serious constitutional questions

inherent in the Petitioners’ position. The Petitioners would

permit enforcement of presumptively arbitrary, capricious

and otherwise inconsistent with law regulations solely

because of a party’s inability to take advantage of a totally

unrealistic and effectively unavailable forum for review.

The court of appeals correctly rejected this extreme posi-

tion.

The Petition for a Writ of Certiorari should be denied.

CRITCHFIELD, CRITCHFIELD,

CRITCHFIELD & JOHNSTON

J. C. Jonnston III

J. DoucLASs DRUSHAL

Counsel of Record

Counsel for Holmes ! imestone Co.

CHESTER, HOFFMAN & WILLCOX

Rosert D. Zrrxo

Coun el of Record

Counsel for Ohio Mining and

Reclamation Association

April 21, 1982

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.