# Petition for Writ of Certiorari — National Mining Association Association v. Kempthorne (No. 08-63)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

sweetie lial tu. | .

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woos. 08-63 JUL 14 2008

LSS rea
IN THE Williara K. Suter, Clerk

Supreme Court of the United States

NATIONAL MINING ASSOCIATION,

Petitioner,
v.

DIRK KEMPTHORNE, SECRETARY
OF THE INTERIOR, et al.,
Respondents.

Petition for a Writ of Certiorari
to the United States Court of Appeals for
the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

HAROLD P. QUINN, JR. CATHERINE E. STETSON*
NATIONAL MINING CHRISTOPHER T. HANDMAN
ASSOCIATION PAUL A. WERNER

101 Constitution Ave.. N.W. HOGAN & HARTSON L.L.P.
Washington, D.C. 20001 555 Thirteenth Street, N.W.

(202) 463-2600 Washington, D.C. 20004
(202) 637-5491
*Counsel of Record Counsel for Petitioner

— - nr
WLSON-EPES PRinTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

The Surface Mining Control and Reclamation Act
(SMCRA) limits mining on certain lands, but
expressly protects the property interests of those
with “valid existing rights” to mine coal. That key
statutory phrase—“valid existing rights”—appears in
one formulation or another in more than 100 federal
statutes. Despite the phrase’s lengthy pedigree and
the settled expectations of the coal industry and
other owners of interests in land, the D.C. Circuit
declared the phrase ambiguous, deferring to a
counter-textual interpretation promulgated by the
Office of Surface Mining Reclamation and
Enforcement (OSM) thsi vitiated property owners’
rights throughout the Nation. The court reached
this result by relying on a new rule of statutory
construction: A common statutory phrase is
categorically ambiguous if just one word in that
phrase—here, the word “rights” in the phrase “valid
existing rights”—has multiple dictionary definitions.

The questions presented are:

1. Whether the D.C. Circuit correctly held—in
conflict with this Court’s precedents—that a
statutory phrase is necessarily ambiguous and
triggers Chevron deference because a single word
within that phrase is itself ambiguous.

2. Whether the D.C. Circuit correctly declined to
narrow OSM’s statutory construction even though its
interpretation will trigger takings claims.

(i)

ii

PARTIES TO THE PROCEEDINGS

Petitioner is the National Mining Association
(NMA). NMA was the plaintiff in the District Court
and appellant before the United States Court of
Appeals for the District of Columbia Circuit.

Respondents Dirk Kempthorne, Secretary of the
Interior, United States Department of the Interior,
and Brent Wahlquist, the Director of the Office of
Surface Mining Reclamation and Enforcement, were
defendants in the District Court and appellees before
the United States Court of Appeals for the District of
Columbia Circuit.

The National Wildlife Federation, Citizens Coal
Council, National Trust for Historic Preservation in
the United States, and Kentucky Resources Council,
Inc., were intervenors-defendants in the District
Court and intervenors-appellees in the United States
Court of Appeals for the District of Columbia Circuit.
The National Council of Coal Lessors, Inc., also filed
an amicus brief in support of NMA in the court of
appeals.

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..............s0ccesccssecccsscscssseees i
PARTIES TO THE PROCEEDINGS ................00.0...4. ii
ee Fe EE acc ccscccccconcssecesevccsesccsssosses Vv
sc encdeveinioniesinlins 1
I avtnanisinimebanien 2
CONSTITUTIONAL AND STATORY

PROVISIONS INVOLVED..............cccccscssovcrerseceees 2
SE RE 2
STATEMENT OF THE CASE. ................ccccccssssccscecsees 5
a csesensndeninnnasaunuiliel 5
I a cn ssemuauniin 13
REASONS FOR GRANTING THE WRIT................ 15

I. THE RULING BELOW CONFLICTS
WITH THIS COURT'S PRECEDENTS ........... 15

Il. BY REJECTING RIVERSIDE BAY-
VIEW HOMES CONSTITUTIONAL
AVOIDANCE RULE, THE RULING
BELOW TRIGGERS A_ CIRCUIT
SPLIT AND INJECTS FURTHER
UNCERTAINTY INTO THE RULE’S
FF Ee CU PEE EIOY nbc sscsecscssresncvscssccsscooses 26

A. The Lower Courts Are Confused
About How To Apply Riverside
Bayview Homes’ Constitutional
ns snibnuinsdl 27

1V
TABLE OF CONTENTS—Continued
Page

B. The Ruling Below Exacerbates The
Confusion In The Lower Courts By
Cameieiet Fi CAGES TRIE cccccescccncccccsccosccescesees 31

III. THIS CASE PRESENTS AN IDEAL
VEHICLE TO ADDRESS A
QUESTION OF SIGNIFICANT
NATIONAL IMPORTANCE ..............c:ccseeesseeees 33

I Calcd codinorsdvennveniaciittninconseumeverrenssnvessine 36

APPENDICES
APPENDIX A:

Opinion of the Court of Appeals,
Gated danuary 15, 2006.............ccccccseccsssevee la

APPENDIX B:

Memorandum Opinion of the District
Court, dated May 4, 2006........................ 17a

APPENDIX C:

Order Denying Panel Rehearing,
ID EE. BG, TI, ccsceccccccccccsvececeseseses 37a

Order Denying Rehearing En Banc,
SEE ee 38a

APPENDIX D:

Letter from Chief Justice Roberts
Extending Petitioners Time to
File, dated June 4, 2008..................... ).... 39a

APPENDIX E:

List of Over 100 Federal Statutes
Protecting Valid Existing Rights............ 40a

TABLE OF AUTHORITIES
Page
Cases:
Adams Fruit Co. v. Barrett, 494 U.S. 638
SRR eros neat ron in ar cng 1 a eae ee ee 15-16
Aleknagik Natives Ltd. v. United States,
806 F.2d 924 (Oth Cir. 1986).........cc.cccccccccccccccsccecees 8
Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441
8 REIREERETRREE SEe oe 30, 31
Bragdon v. Abbott, 524 U.S. 624 (1998) ................ 21
Brown v. Gardner, 513 U.S. 115 (1994)............0.... 19

Building Owners & Managers Ass'n Int'l
v. FCC, 254 F.3d 89 (D.C. Cir. 2001) .................. 29

Chevron U.S.A. Inc. v. Natural Res.
Defense Council, Inc., 467 U.S. 837
RIES IEE Eee Ree ee Se nT oni CA a passim

Citizens Coal Council v. Norton, 330
F.3d 478 (D.C. Cir. 2003), cert. denied,
RETESET TAT OEE 5-6

Colorado Envtl. Coal. v. Bureau of Land

Commonwealth of Va. ex rel. Va. Dep’t of
Conservation & Econ. Dev. v. Watt, 741
F.2d 37 (4th Cir. 1984), cert. dismissed
sub nom. Va. Dep't of Conservation &
Econ. Dev. v. Clark, 469 U.S. 1198
Sipe cestibcbndkiebiindemmesainieiaeibndiddddadauiueisuntiniedadiaueie 35

vi
TABLE OF AUTHORITIES—Continued

Page

Crawford Fitting Co. v. J.T. Gibbons,

SS LR 24
Davis v. Michigan Dep't of Treasury, 489

EL 16
Dolan v. United States Postal Serv., 546

SELES 17, 18
Dole v. United Steelworkers of Am., 494

SESE 19
Edward J. DeBartolo Corp. v. Florida

Gulf Coast Bldg. & Constr: Trades

Council, 485 U.S. 568 (1988) .......................00000... 26
Environmental Action, Inc. v. FERC, 939

ES 21

Florida Rock Indus., Inc. v. United
States, 791 F.2d 893 (Fed. Cir. 1986),
cert. denied, 479 U.S. 1053 (1987)....................... 29

Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S.

EEE SIRE IES 19
Forest Guardians v. Dombeck, 131 F.3d

i s scseseonenouceos 8
GTE Serv. Corp. v. FCC, 205 F.3d 416

EE Re 30

General Dynamics Land Sys., Inc. v.
Coiree, BED UB. GEL GIDE)... ccc ccccccccccccccccscccsccssess 15

vii
TABLE OF AUTHORITIES—Continued

Page

Gilbert v. United States, 370 U.S. 650

ESE ee a DER eee re 21
Hawaiian Airlines, Inc. v. Norris, 512

EERE i a 21
Hinton v. Udall, 364 F.2d 676 (D.C. Cir.

RRS RELEASE Co Ee 8
Hodel'v. Virginia Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264

|RSS EB SR a passim
Independent Fed’n of Flight Attendants

We Bee, GE WEB. FO CR oecccccccescseccccessccccceses: 21
Iowa Utils. Bd. v. FCC, 219 F.3d 744

(8th Cir. 2000), rev'd in part on other

grounds sub nom. Verizon Commc’ns,

Inc. v. FCC, 535 U.S. 467 (2002).................... 28-29
Jarecki v. G.D. Searle & Co., 367 U.S.

i snsbeonneosinne 16
KP Permanent Make-Up, Inc. v. Lasting

Impression I, Inc., 543 U.S. 111 (2004)............... 25
Kile v. Belisle, 759 P.2d 1292 (Ala. 1988)................ 9
King v. St. Vincent Hosp. 502 U.S. 215

(SRST SI ASD nen e Roll Parsi Sata CE a 17

MCI Telecomms. Corp. v. AT&T Co., 512
ERR RRR Cee Ue Lane ee a 19

viii
TABLE OF AUTHORITIES—Continued

Page

McDermott Int7, Inc. v. Wilander, 498

REESE IESE a a 21, 22
Morissette v. United States, 342 U.S. 246

ETE ae ZEA OSS A na 21
NLBB vy. Catholic Bishop of Chi., 440

EIT TT eee 26
NLRB vy. Federbush Co., 121 F.2d 954

(BE Cae. TBE) ..000000000:0- dialled halite tie enangniedeteanendes 16
National Ass’n of Home Builders v.

Defenders of Wildlife, 127 S. Ct. 2518

(SERRATE aD Ey ESA eC a a 18
National Mining Ass’n v. Babbitt, 172

a 30
National Mining Ass’n v. Kempthorne,

a comanmeusions l
National Wildlife Fed’n v. Hodel, 839

pe ee passim
Northern Alaska Enutl Ctr. v. Lujan, 872

a sssonssnsinnnene 8

Railway Labor Executives’ Ass’n v.
United States, 987 F.2d 806 (D.C. Cir.

Robinson v. Shell Oil Co., 519 U.S. 337
EEE eo De Ope Ne ae POT ee ETE OF 16

1x
TABLE OF AUTHORITIES—Continued
Page

Russello v. United Siates, 464 U.S. 16
i a 25

Rust v. Sullivan, 500 U.S. 173 (1991).................... 26

Seldovia Native Ass’n, Inc. v. Lujan, 904
Pe I I a scavacnnessoseeen 8

Shell Oil Co. v. Iowa Dep’t of Revenue,
REE A 16

Smith v. City of Jackson, 544 U.S. 228
(2005)........ SEEN ETRE eT aN HORS Oe a 21

Stupak-Thrall v. Glickman, 988 F. Supp. ;
ne I I cccteesmousonesioons 8

Texas Office of Pub. Util. Counsel v.
FCC, 183 F.3d 393 (5th Cir. 1999), cert.
denied sub nom. Celpage, Inc. v. FCC,
530 U.S. 1210 (2000), and AT&T Corp.
v. Cincinnati Bell Tel. Co., 530 U.S.
1223 (2000), and cert. dismissed sub
nom. GTE Service Corp. v. FCC, 531
8 IES 27-28

Transmission Access Policy Study Group
v. FERC, 225 F.3d 667 (D.C. Cir. 2000),
aff'd sub nom. New York v. FERC, 535
A a esensopsosens 29

United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121 (1985) ................ passim

x
TABLE OF AUTHORITIES—Continued

Page
United States v. Security Indus. Bank,
EE 27
United States Navigation Co. v. Cunard
a is Be I Me ao cincccccccocssscccecconsose 22
_ West Va. Univ. Hosps., Inc. v. Casey, 499
seein 22
Constitution:
I i alee al 2
Statutes:
| Federal Land Policy & Management Act
of 1976, Pub. L. No. 94-579, § 701(h)
(codified at 43 U.S.C. § 1701 (note))...................... 7
Surface Mining Control and Reclamation
Act of 1977, Pub. L. No. 95-87, 91 Stat.
445 (codified at 30 U.S.C. §§ 1201 et
el aa ai ids ici nrnetbidegtipnbmndtnicosdncessnanees passim
i aeiledesanideapeleilinl 7
EN TE EE ee a EN AR ERE 7
ET EE ee Oe REN SEE TT 7
I ase sera cniniinatiinabeinidiel 7
ha sebultiaislausnenndlaeni 7
ET a a a eR 7

I eds 7

xl
TABLE OF AUTHORITIES—Continued

Page
I 8
Tis ssuniesscencsonnnesnesmovnnindcsiipeetensabiil 8
I is cscsedersntenenmenntinovonneniiiipnin’ 8
TTR AS RE RT 8
ii cnccaptenctoednansedicbaliinengedeeina 8
ia lads csncasonininemsctuuniinnbiivebeibetiall 7
sc ssncnnsinertinenonaitessenennaniniiii 23
es PED ox covsccccscnceneqgsesesevecesovebens 23
ili cn vicki nnsninschaisinnbameeuapitnnia 23
is sincesnedcinisniesiinnencinninsdsaiehicinisianad 8
I ici cssinienepessebunbiesiasedieimnianial 7
i incites cireenersehanaivendieiicmsbiinasiaaed 7
iis rntpnedinieiibedaolalealavioiabadll 7
os cnccseccnnennnsepecibiinininoutidnabilil 7
sili dicey cintncinsiscethiodsiobiilbalbciiibiil 2
cae enneseccnivmmngecuvetninnsipmabbehibasiniel 5
Se on revinanscovtcounsittbinseaidinnsmesupadeieeel 6
EE 5, 6
I Sites icinsiscnsatsiathinsaacseesesiennstidiaineniiasionhalieilaia 24

i a oo 24

xii
TABLE OF AUTHORITIES—Continued

Page
Ee ea mT 24
30 U.S.C. § 1259.......... SST TE ST I 24
teint 24
TT 24
I. ccvncsosecsesoveentesteonndeteonsnial 24
a... caateneessunentnnnminiel 24
ENE a 24
Oe a 24
il teaasindatl 24
i i i ctales aal 24
a. a ietnsslaeaciandebepeinibibl 24
TOT RET 24
TEAR 6
I ... .scccecesssusestonnsivnsesossininen 23
BI Oe ED icaissivscsessccccsccasssoressescsvssoons 35
EE RE aE AE 7
ee: 0 POI os. nsccecececvcccivesencscsonscsveses 11
a ssciatndapesienllel 7
ess cscrinciiosnsdontinnigbediisonanin 7
AEE 7

He

xiii
TABLE OF AUTHORITIES—Continued

Page
Te EE inititectdnsicitnsesnsnsecsisnecseiccinannaealiioe 7
ee ncisinsccsccinncssnenctvensonsiacianena 7
ee II decceccicscccccesosscsdessenessemaeiipsé 7
Oe a itiilie sactcntccscnsnsinccccininicntuiiaciimesianiinien 7
te I sods crnciniinsvciinesiescconshiinnnnacinieeamdivesitats 7
Ee 7
I I i ncciiessoessasncsesintovnsacesnenssaninl 7
Legislative Materials:
H.R. Rep. No. 95-218 (1977), reprinted in
re Ic III eccciaitscccndssusiamnatotsisapuntinsnsindg 9
A, HE PT OD vitinctcvensenccacsiceteiccenenssmaiibiniin 9
Regulations:
i inisisininsincncsiiiincissinasniindonsenascannedepietagibine 31
NT ini sociacnsonidsniemebniicnenssnuneiasdiaatinds 10
ee Oe i cresinsccnsccvccccnsescnnsessonsicinnds 11
ee iinet cncsnsticninteniaiassieccsionnnueia 11
64 Fed. Reg. 70,766 (Dec. 17, 1999 final
RD iii ssticntiiihseaiieiiladineednbietdiatiitiniiibiitiiniaiascineivneee passim
Exec. Order No. 7624, 2 Fed. Reg. 1119
eG TIE ciated anita scipbaiieihdieniibiahibenbensnainescescannl 6-7

Proclamation No. 6920, 61 Fed. Reg.
Es SINE II cciticcnceisndisascinnisddotscainncrninentl 6

X1V
TABLE OF AUTHORITIES—Continued

Page
Proclamation No. 7397, 66 Fed. Reg.
|g ETS ee 6
Rules:
I inci oa ac tsreapenespdhdshidtinnibaiaaiaininiaal 33
libs nel 25
Other Authorities:

2B Norman L. Singer, Sutherland
Statutory Construction § 51:2 (7th ed.
NES SESE CT ERESI nto NERC OO icv 21

Felix Frankfurter, Some Reflections on
the Reading of Statutes, 47 Colum. L.
Se a csanenccecsecscosdons 21

Jan G. Laitos, The Nature &
Consequence of “Valid Existing Rights”
Status in Public Land Law, 5 J. Min.

ac csnssesececsnsess 6
Louis J. Dobbs, 77 Interior Dec. 5 (Jan.
REESE SER OE SS ST a 9

Note, Regulation & Land Withdrawals:
Defining “Valid Existing Rights,” 3 J.
Ss ees ME OOF CID vccecccncsessccccserccoscenionses 7,8

IN THE

Supreme Court of the Anited States

No. 08-

NATIONAL MINING ASSOCIATION,

Petitioner,
Vv.

DIRK KEMPTHORNE, SECRETARY
OF THE INTERIOR, et al.,
Respondents.

Petition for a Writ of Certiorari
to the United States Court of Appeals for
the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

The National Mining’ Association (NMA)
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the D.C. Circuit affirming the
District Court’s dismissal of NMA’s challenge to
OSM’s “valid existing rights” rule is reported at 512
F.3d 702 and reprinted in the appendix hereto (App.)
at la. The memorandum opinion of the District
Court is unpublished and is reprinted at App. 17a.

2

JURISDICTION

The judgment of the Court of Appeals was entered
on January 15, 2008. App. la. A timely petition for
panel rehearing and rehearing en banc was denied
on March 14, 2008. App. 37a-38a. On June 4, 2008,
Chief Justice Roberts extended the time within
which to file a petition for a writ of certiorari, to and
including July 12, 2008. App. 39a. The jurisdiction
of this Court rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the United States
Constitution provides in pertinent part: “[Njor shall
private property be taken for public use without just
compensation.” U.S. Const. amend. V.

Section 522(e) of SMCRA provides in relevant 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 [in
areas designated in subsections (1)-(5)).”

INTRODUCTION

When it enacted SMCRA, Congress established a
federal regime to regulate coal mining. Among other
things, the Act banned surface coal mining
operations on certain federal, state, and private
lands. But Congress was careful to craft an
important exception to this otherwise categorical
ban: mining could continue on lands in which
miners held “valid existing rights,” commonly
referred to as VER.

VER clauses similar to the one codified in SMCRA

are a commonplace in federal land-use regulations.
Over the past century, Congress and the Executive

3

have used the same or a substantively similar
phrase in over 100 statutes and proclamations for
generally the same purpose: to protect pre-existing
property rights from being impaired by subsequently
enacted policy changes. VER clauses thus represent
a critical safeguard for the many owners of property
rights in lands that supply this Nation’s critical
natural resources—such as minerals, oil, gas, and
timber.

The ruling below, however, threw the significance
of this safeguard into serious doubt. It did so by
upending the conventional understanding of VER
clauses as protecting property rights. The D.C.
Circuit determined that it would defer to OSM’s
conclusion that SMCRA’s VER protects only
“property-rights-plus-permits”"—only those property
rights on which the holder had also secured (or made
a good faith effort to secure) permits before the
affected land came within SMCRA’s ambit.

OSM’s “property-plus” interpretation of VER was
unique; but the D.C. Circuit’s analysis of OSM’s
regulation was as unprecedented as OSM’s
interpretation itself. | Purporting to apply the
methodology established in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), the court of appeals bestowed an
expansive new measure of deference on agency
interpretations of the statutes they administer by
effectively deferring to the agency in determining
whether a statute is ambiguous. Instead of deploying
the familiar tools of statutory construction to unlock
the meaning of the key statutory term—‘valid
existing rights”’—the court declared it ambiguous,
and the agency’s interpretation deserving of

4

deference, because the lone word “rights” has
various dictionary definitions. But just about any
statutory phrase can be deemed “ambiguous” based
on the definitional possibilities of the individual
words it comprises. And this Court has made quite
clear that statutory interpretation requires more
than the isolated review of a single word of text, and
that statutory ambiguity does not hinge on abstract
definitional possibilities.

The D.C. Circuit’s extreme brand of Chevron
deference is not only in deep conflict with this
Court’s precedents; it raises significant
constitutional doubts. OSM selected—and the court
of appeals uncritically approved—an interpretation
of SMCRA’s VER clause that OSM forthrightly
acknowledged would pose “significant takings
implications.” 64 Fed. Reg. 70,766, 70,781 (Dec. 17,
1999 final rule). But in approving OSM’s
interpretation, the D.C. Circuit expressly declined to
apply the rule articulated by this Court in United
States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 129 n.5 (1985), that an agency’s statutory
construction that threatens a taking should be
construed narrowly to alleviate that concern. The
court’s decision not only conflicts with Riverside
Bayview Homes itself; it exacerbates a rift among the
circuit courts, which have long struggled to
understand and apply the canon. The Riverside
Bayview Homes rule now appears to be a dead letter
in the D.C. Circuit; it is hard to imagine the
circumstances in which the rule would apply, if not
where OSM extensively catalogued the takings its
preferred interpretation would cause, and where

5

courts, including this one, have recognized that
SMCRA’s VER clause does not compel that result.

The Court should grant certiorari to dispel the
confusion the D.C. Circuit has introduced into the
proper application of the Chevron methodology. And
the Court should also undertake to provide the lower
courts with needed guidance on the _ proper
application of the Riverside Bayview Homes rule.

STATEMENT OF THE CASE
A. Factual Background

1. Enacted in 1977 after years of protracted
debate, the Surface Mining Control and Reclamation
Act (SMCRA or Act), Pub. L. No. 95-87, 91 Stat. 445
(codified at 30 U.S.C. §§ 1201 et seg.), is a
“comprehensive statute” that establishes a
“nationwide program” to address surface coal
mining. Hodel v. Virginia Surface Mining &
Reclamation Ass’n, Inc., 452 U.S. 264, 268 (1981);
accord National Wildlife Fed’n v. Hodel, 839 F.2d
694, 701 (D.C. Cir. 1988). That nationwide program
provides for federal regulation of land-use activities
that are traditionally under state and local control.
See Hodel, 452 U.S. at 289 (explaining that “the Act
*** prescribes federal minimum _ standards
governing surface coal mining, which a State may
either implement itself or else yield to a federally
administered regulatory program”); id. at 269-272
(outlining SMCRA provisions).

With the Act, Congress aimed to “strike a balance
between protection of the environment and
agricultural productivity and the Nation’s need for
coal as an essential source of energy.” 30 U.S.C.
§ 1202(f); see also Citizens Coal Council v. Norton,

6

330 F.3d 478, 480 (D.C. Cir. 2003). SMCRA thus
promotes twin objectives: “protect society and the
environment from the adverse effects of surface coal
mining operations,” 30 U.S.C. § 1202(a), and “assure
that the coal supply essential to the Nation’s energy

requirements, and its economic and social well-being
is provided,” id. at § 1202(f).

Congress’s careful balancing of these social and
economic interests is most clearly evident in Section
522(e) of SMCRA. That provision designates a host
of areas off-limits for surface—coal-mining operations.
See 30 U.S.C. § 1272(e). But the provision also
contains exemptions that serve SMCRA’s second
objective: preserving the availability of critical coal
resources essential to our energy needs. See id.
Section 522(e) exempts from the otherwise
categorical ban on mining in statutorily designated
areas two classes of property: existing mining
operations and areas “subject to valid existing
rights.” Id.

2. Congress did not coin “valid existing rights” in
SMCRA. It and the Executive have deployed VER
clauses in well over 100 federal statutes and
proclamations during the past century to protect
rights in property from destruction by federal land-
use enactments.' The United States Code is replete

1 See Jan G. Laitos, The Nature & Consequence of “Valid
Existing Rights” Status in Public Land Law, 5 J. Min. L. &
Pol’y 399, 403-406 & n.20 (1989) (noting that “[t]he VER phrase
appears in over 100 federal statutes”); see, e.g., Proclamation
No. 7397, 66 Fed. Reg. 7354, 7356 (Jan. 22, 2001) (establishing
Sonoran Desert National Monument “subject to valid existing
rights”); Proclamation No. 6920, 61 Fed. Reg. 50,223, 50,225
(Sept. 18, 1996) (establishing Grand Staircase-Escalante
National Monument “subject to valid existing rights”); Exec.

7

with statutes containing VER clauses.2 They appear
in Title 10 (Armed Forces),® Title 16 (Conservation),
Title 25 (Indians),5 Title 30 (Mineral Lands and
Mining),® Title 42 (The Public Health and Welfare),’
Title 43 (Public Lands),® Title 45 (Railroads),? and
Title 48 (Territories and Insular Possessions).!°
Included among these statutes are provisions
governing the acquisition and use of lands under
federal management!! as well as withdrawing lands
from private-sector development. !2

Order No. 7624, 2 Fed. Reg. 1119, 1119 (May 29, 1937) (order
enlarging Tongass National Forest “subject to valid existing
rights”).

2 See App. 40a.

3 See 10 U.S.C. § 7439(b).

4 See, e.g., 16 U.S.C. § 47e; id. § 80a; id. § 90; id. § 100c; id.
§ 410bb(c); id. § 410aaa-25; id. § 539(b); id. § 4308(d).

5 See, e.g., 25 U.S.C. § 293b; id. § 575; id. § 1780j(a)(1).
6 See, e.g., 30 U.S.C. § 1281.
7 See 42 U.S.C. § 6502.

8 See, e.g., 43 U.S.C. § 1223; id. § 1610(a)(1); id. § 1633(c); id.
at § 1785(c)(2)(A).

9 See, e.g., 45 U.S.C. § 1203(b)(1)(B); id. § 1210.
10 See, e.g., 48 U.S.C. § 1545(b)(2); id. § 1705(a); id. § 1971 (a).

1! See, e.g., Federal Land Policy & Management Act of 1976,
Pub. L. No. 94-579, § 701(h) (codified at 43 U.S.C. § 1701 note).

12 See, e.g., Note, Regulation & Land Withdrawals: Defining
“Valid Existing Rights,” 3 J. Min. L. & Pol’y 517, 532 (1988)
(“Although withdrawals have been numerous and have taken
many forms, they invariably have contained language designed
to protect existing rights acquired prior to the time of
withdrawal. The specific language used has varied, but the

8

Not surprisingly given their proliferation in federal
law, VER clauses impact a wide array of property
owners, including diverse industries dependent on
natural resources—from mineral and mining,'® to oil
and gas,'4 to forestry.15 And irrespective of where
they appear and what precise verbiage is used to
describe the right they guard, VER clauses have
been consistently understood to preserve the status
quo ante by protecting property interests that
otherwise would be _ adversely § affected by
subsequently enacted federal laws.'®

usual phrase preserves valid existing claims or valid existing
rights.”).

13 See, e.g., 16 U.S.C. § 460v-4; id. § 460q-5; id. § 460dd-2(a);
id. § 460mm-1.

14 See, e.g., 16 U.S.C. § 460qq(c); Colorado Envtl. Coal. v.
Bureau of Land Mgmt., 932 F. Supp. 1247, 1249 (D. Colo. 1996)
(VER clause in Federal Land Policy and Management Act
protected existing gas leases).

15 See, e.g., 16 U.S.C. § 1604(i); Forest Guardians v. Dombeck,
131 F.3d 1309, 1312-13 (9th Cir. 1997).

16 See, e.g., Seldovia Native Ass'n, Inc. v. Lujan, 904 F.2d
1335, 1343 (9th Cir. 1990) (Alaska Native Claims Settlement
Act’s protection of “valid existing rights” included open-to-entry
leases with conditional purchase options); Northern Alaska
Envtl. Ctr. v. Lujan, 872 F.2d 901, 903 (9th Cir. 1989) (Alaska
National Interests Lands Conservation Act’s protection of “valid
existing rights” included valid patented and unpatented mining
claims); Aleknagik Natives Ltd. v. United States, 806 F.2d 924,
927 (9th Cir. 1986) (Alaska Native Claims Settlement Act’s
protection of “valid existing rights” included unvested property
interests); Hinton v. Udall, 364 F.2d 676, 678-679 (D.C. Cir.
1966) (Interior Department Order No. 2874’s protection of
“valid existing rights” included subsurface property rights);
Stupak-Thrall v. Glickman, 988 F. Supp. 1055, 1063-64 (W.D.
Mich. 1997) (Michigan Wilderness Act’s protection of “valid

9

Congress had the same purpose in mind when it
protected “valid existing rights” from Section 522(e)’s
otherwise per se ban on surface coal mining in
statutorily designated areas. See National Wildlife
Fed’n, 839 F.2d at 749 (Congress “limited the
application of the surface mining proscriptions to
avoid infringement of existing property rights.”
(emphasis added)); see also id. at 750 (“Congress did
not intend to infringe on valid property rights or
effect takings through § 522(e).”). As in other
statutes, SMCRA’s VER clause is intended to serve a
fundamental purpose: to clarify that “all valid
existing property rights must be preserved” and that
Congress “has no intention whatsoever, by any
provision of [SMCRA], to change such rights.” 5S.
Rep. No. 95-128, at 56 (1977) (emphasis added); see
H.R. Rep. No. 95-218, at 95 (1977) (“As subsection
522(e) prohibits surface coal mining on lands within
the boundaries of national forests, subject to valid
existing rights, it is not the intent, nor is it the effect
of this provision to preclude surface coal mining on
private inholdings within national forests.”). In
reviewing a _ pre-enforcement challenge to the
constitutionality of SMCRA, this Court similarly
signaled as much. See Hodel, 452 U.S. at 297 n.37
(finding takings claim “premature” because statute
protected “valid existing rights” and explaining that

existing rights” included riparian rights); Kile v. Belisle, 759
P.2d 1292, 1298-1301 (Ala. 1988) (Public Land Order 5250's
protection of “valid existing rights” included placer mining
claims where there is substantial compliance with annual
assessment requirements); cf. Louis J. Dobbs, 77 Interior Dec.
5, 8 (Jan. 15, 1970) (VER clauses “were designed to prevent the
initiation of new claims and not the destruction of rights
theretofore fairly earned”).

10

a permit requirement “is not compelled by either the
statutory language or its legislative history”) (citing
H.R. Rep. No. 95-218, at 95 (1977)).

3. Despite the long-standing conventional
understanding of VER clauses, the agency charged
with administering SMCRA—OSM-—has struggled to
implement the VER clause in Section 522(e). Since
1977, OSM has vacillated among alternative
definitions for the statute’s VER clause, only settling
on its most recent interpretation in 1999—two
decades after SMCRA was enacted. See 64 Fed. Reg.
70,766, 70,766 (Dec. 17, 1999 final rule) (“[{Al]t
various times during the past two decades, we have
either proposed or adopted all the listed
alternative[ definitions of Section 522(e)s VER
clause], plus some variations on these alternatives.”).

In its latest regulatory incarnation of Section
522(e)’s VER clause, OSM required a miner seeking
to demonstrate VER in a Section 522(e) area to
satisfy a two-part test. The first part embodies what
the phrase “valid existing rights” has traditionally
meant: “a person claiming [VER] must demonstrate
that a legally binding conveyance, lease, deed,
contract, or other document vests the person, or a
predecessor in interest, with the right to conduct the
type of surface coal mining operations intended.” 30
C.F.R. § 761.5(a). In other words, the miner must
hold a valid property right to mine coal in the area
before it was placed off limits under SMCRA. See id.

But OSM did not stop where the text of the statute
stops. The second part of its VER test additionally
requires a miner to prove that “[a]ll permits and
other authorizations required to conduct surface coal
mining operations had been obtained, or a good faith

1]

effort to obtain all necessary permits and
authorizations had been made, before the land came
under the protection of’ Section 522(e). Id. .
§ 761.5(b)(1). Thus, while Section 522(e)’s VER
clause says not a word about meeting permitting
requirements attendant on _ surface-coal-mining
operations in statutorily designated areas, OSM
made that the critical element for establishing
VER.'7 See 64 Fed. Reg. at 70,778. As OSM
explained, its regulation means that VER is not
“coextensive or synonymous with property rights”; to
the contrary, property rights are a mere
“prerequisite for demonstrating VER under the good
faith/all permits” standard. Jd. at 70,774. Section
522(e)’s VER clause therefore does not protect valid
pre-existing property rights as so many of its
statutory analogs do; it protects “equitable interest(s}
in regulatory approval of proposed surface coal
mining operations.” Jd. at 70,778.

In a lengthy preamble accompanying its
regulations, OSM _ acknowledged the obvious
implication of grafting a “good faith/all permits” plus-
factor onto SMCRA’s VER clause more than two
decades after the statute became law: “[F]lew
persons will qualify for VER under this standard.”
Id. OSM further recognized the upshot of adopting
a test “few persons” could ever meet: its chosen

-

17 A miner may also demonstrate that “[t]he land is needed
for and immediately adjacent to a surface coal mining
operation” for which the miner had obtained (or made a good
faith effort to obtain) all permits and other authorizations. 30
C.F.R. § 761.5(a)(b)(2). But SMCRA already exempts existing
mining operations, which include adjacent lands as well as
roads. See 30 U.S.C. § 1291(28)(B).

12

interpretat.on carried “significant takings
implications.” Id. at 70,781; accord id. at 70,827.

Quite right. In fact, of all the alternative VER
definitions OSM considered in its rulemaking, the
one it adopted had “the greatest potential to result in
compensable takings.” Jd. at 70,781-82 (emphasis
added). OSM also recognized why that was so: Its
regulation upsets “underlying property interests”
and interferes with “reasonable investment-backed
expectations.” /d. at 70,824. Indeed, while OSM
acknowledged that the standard it adopted would
prevent mining of thousands of acres in protected
areas, id. at 70,776, its prediction underestimates
the full takings impact of its regulation. OSM’s new
test will apply not only to areas currently designated
under SMCRA but also to areas that later come
within SMCRA’s protections through future
designations or third-party actions. See National
Wildlife Fed’n, 839 F.2d at 750-751.

OSM fully appreciated that this’ grave
constitutional consequence was in no way compelled
by SMCRA, since “neither the statute nor its
legislative history mentions a good faith/al] permits
standard for VER.” 64 Fed. Reg. at 70,778. OSM
even recognized that its interpretation of Section
522(e)’s VER clause deviated from Congress’s
historic use of the same term in many other federal
statutes, which have been construed to protect pre-
existing property rights from takings. Id. Yet OSM
took the view that other statutes containing the
same or substantively similar terms failed to provide
any “useful guidance in determining the meaning of
VER for surface coal mining operations under
Section 522(e) of SMCRA.” Id. at 70,794.

13

B. Proceedings Below

1. After OSM promulgated its “good faith/all
permits” rule, NMA—whose members own or lease
coal estates in areas protected under SMCRA—
challenged the rule in the United States District
Court for the District of Columbia. On cross-motions
for summary judgment, the District Court granted
judgment against NMA and in favor of the Secretary
of the Interior. App. 36a. The District Court
acknowledged that Congress intended in Section
522(e)’s VER clause “some recognition of applicable
state law property rights and an avoidance of
takings.” App. 3la. It nevertheless found the term
ambiguous, App. 32a, and concluded that OSM’s
interpretation was a permissible construction of the
statute. App. 32a-34a.

2. The D.C. Circuit affirmed. App. la. Like the
District Court, the court of appeals concluded that
Chevron mandated deference to the Secretary’s
interpretation of Section 522(e)’s VER clause because
it found the clause facially ambiguous. App. 2a. But
the panel did not come to its conclusion about
statutory ambiguity by applying the traditional tools
of statutory construction—i.e., text, structure,
context, and purpose—that this Court has long
required. App. 7a-lla. It took a far different route:
Ignoring the other words that make up the critical
statutory term, the other parts of SMCRA, and the
other statutes containing the same or similar VER
clauses, the court examined just one word—
“rights”—and just one source—the dictionary. .

After examining how Black’s Law Dictionary treats
the word “rights,” the court of appeals held that
Section 522(e)’s use of the word “rights” constituted a

14

“major source * * * of ambiguity.” App. 8a. Thus,
the D.C. Circuit opined that while “rights” may refer
to property rights in some circumstances, Congress
had used “a word with multiple and often vague
meanings’ that “will also do service more generally,”
meaning in turn that “[t}]he dictionary counsels in
favor of more deference to tie agency, not less.” App.
9a. While recognizing that the term “valid existing
rights” may well “operate| ]” as a “term of art,” the
court explained that the term is “a tool by which
Congress delegates policymaking authority through
ambiguity.” App. 10a. With this holding, the panel
announced a new and troubling rule: Chevron step
two is triggered whenever one word in a statute is
superficially ambiguous based on its dictionary
definitions.

Having found SMCRA’s VER clause ambiguous
because the word “rights” in isolation is susceptible
to various dictionary meanings, the panel found the
Secretary’s interpretation of the statute reasonable
under Chevron step two. App. 1la-16a. This is the
point at which the court made its second mistake.
The court declined to adopt a narrowing construction
of OSM’s statutory interpretation under Riverside
Bayview Homes based on its manifest takings
implications. App. 15a-16a. The panel agreed in
theory that “the canon of constitutional avoidance
can{not] be ignored with respect to every argument
sounding in the Takings Clause”—but nevertheless
concluded that no such issues were raised in this
case, because “NMA has shown no ‘identifiable class’
of miners whose takings claims would expose the
Treasury to such liability.” App. 16a. The court

15

therefore applied the “usual Chevron analysis” and
deferred to the Secretary’s interpretation.

NMA timely petitioned for rehearing and rehearing
en banc. The D.C. Circuit denied both requests.
App. 37a-38a.

REASONS FOR GRANTING THE WRIT

I. THE RULING BELOW CONFLICTS WITH
THIS COURT’S PRECEDENTS.

1. The D.C. Circuit deferred to the Secretary’s
interpretation of SMCRA’s “valid existing rights”
clause because a single word in that key phrase—
“rights’°—has multiple entries in the dictionary.
With that unique’ approach to _ statutory
interpretation under Chevron, the D.C. Circuit
effectively enshrined a new measure of deference in
the interpretative process where none had previously
existed and where none properly belongs—i.e., in
determining whether a statute is ambiguous in the
first place. App. 7a-lla. An interpretative approach
that focuses exclusively on abstract definitional
possibilities as the touchstone of statutory ambiguity
can be expected to produce a delegation of authority
to the agency in just about every case. Not only does
that approach squarely conflict with Chevron, but it
also poses grave separation-of-powers concerns by
allowing Executive Branch agencies to trump
Congress’s otherwise clear intent. That is why this
Court has held time and again that “deference to [an
agency's] statutory interpretation is called for only
when the devices of judicial construction have been
tried and found to yield no clear sense of
congressional intent.” General Dynamics Land Sys.,
Inc. v. Cline, 540 U.S. 581, 600 (2004); see Adams

16

Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A
precondition to deference under Chevron is a
congressional delegation of administrative
authority.”). The panel’s key supposition—that the
isolation and sterile examination of one word in a
statute can trigger statutory ambiguity sufficient to
constitute a delegation of lawmaking authority to an
administrative agency—thus stands in sharp conflict
with this Court’s teachings.

To begin with, neither this Court’s precedents nor
common sense allow any statutory interpretation to
hinge exclusively on the isolated review of a single
word contained in the statute that has various
definitions in common usage. See Jarecki v. G.D.
Searle & Co., 367 U.S. 303, 307 (1961) (“[A] word is
known by the company it keeps.”). As this Court has
explained, “‘[wjords are not pebbles in alien
juxtaposition; they have only a communal existence;
and not only does the meaning of each interpenetrate
the other, but all in their aggregate take their
purport from the setting in which they are used{.]’”
Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19,
25 n.6 (1988) (quoting NLRB v. Federbush Co., 121
F.2d 954, 957 (2d Cir. 1941) (Hand, J.)). For that
basic reason, this Court has sensibly held that
“statutory language cannot be construed in a
vacuum”; instead, “the words of a statute must be
read in their context and with a view to their place in
the overall statutory scheme.” Davis v. Michigan
Dep't of Treasury, 489 U.S. 803, 809 (1989); see also
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
(“The plainness or ambiguity of statutory language is
determined by reference to the language itself, the
specific context in which that language is used, and

17

the broader context of the statute as a whole.”); King
v. St. Vincent Hosp., 502 U.S. 215, 221 (1991) (“[T]he
meaning of statutory language, plain or not, depends
on context.”).

This Court has repeatedly put to practice this
conventional approach to statutory interpretation,
and did so again recently. In Dolan v. United States
Postal Serv., 546 U.S. 481 (2006), the Court
considered whether the Federal Tort Claims Act’s
postal exception for the “negligent transmission” of
mail preserved sovereign immunity for injuries
caused by the Postal Service’s creation of slip-and-
fall hazards by the careless delivery of mail. Jd. at
486. The Court recognized that, “[iJf considered in
isolation,” the phrase “negligent transmission” could
“embrace a wide range of negligent acts committed
by the Postal Service in the course of delivering
mail.” Jd. But “[t]he definition of words in isolation
* * * is not necessarily controlling in statutory
construction,” the Court explained, because “[a] word
in a statute may or may not extend to the outer
limits of its definitional possibilities” depending upon
the interpretation of “the whole statutory text,
considering the purpose and context of the statute.”
Id. “(Njegligent transmission” did not extend to its
definitional limit; the other statutory terms
surrounding it constrained its meaning, such that
the phrase was more properly interpreted to extend
only to injuries arising because mail does not arrive
or arrives late, arrives in damaged condition, or at
the wrong address. Id. at 486-489.

The ruling below cannot be reconciled with Dolan.
The D.C. Circuit made no attempt to understand the
meaning of the word “rights” in the context in which

18

it was used—i.e., as part of a statutory term of art
with a century-old pedigree—or even by reference to
the other words surrounding it—i.e., “valid” and
“existing.” Instead, the court’s statutory analysis
was entirely “control[ed]” by the existence of multiple
dictionary definitions for one word in the statute
without any regard for “the whole statutory text.”
Id. at 486. Dolan would thus likely have come out
differently under the panel’s approach: under the
D.C. Circuit’s test, the Postal Service’s creation of a
slip-and-fall hazard would constitute the “negligent
transmission” of mail for which sovereign immunity
is preserved because that phrase in theory can
“embrace a wide range of negligent acts.” Jd.

This Court has likewise emphasized that Chevron
step one requires more than an open-ended hunt for
definitional possibilities. See National Ass’n of
Home Builders v. Defenders of Wildlife, 127 S. Ct.
2518, 2534 (2007) (“In making the _ threshold
determination under Chevron, a reviewing court
should not confine itself to examining a particular
statutory provision in isolation.”) (internal citation &
quotation marks omitted). A statute is only deemed
ambiguous under Chevron after the traditional tools
of statutory construction—text, structure, purpose,
and context—have been applied and exhausted. See,
e.g., Chevron, 467 U.S. at 843 n.9 (“If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the
precise question at issue, that intention is the law
and must be given effect.”).

This Court has repeatedly deployed the familiar
tools of statutory interpretation to dispel facial
statutory ambiguity and to reject administrative

19

agency constructions inconsistent with plain
statutory commands. See Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120,
160 (2000) (examining Food and Drug Act’s text,
structure, purpose and history of tobacco legislation
and holding FDA barred from regulating cigarettes
as “drug” and “device” under Chevron step one); MCI
Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 228
(1994) (applying text and_ structure to
Communications Act and_ rejecting FCC’s
construction of “modify” under Chevron step one).!®
Take, for one classic example, Brown v. Gardner, 513
U.S. 115 (1994). In that case, the Court reviewed a
Department of Veteran Affairs regulation “requiring
a claimant for certain veterans’ benefits to prove that
disability resulted from negligent treatment by the
VA” and ultimately held that it was inconsistent
with the controlling statute, which states that the
VA will provide disability benefits for an injury that
results from VA medical treatment so long as it did
not result from the “veteran’s own willful
misconduct.” Jd. at 116. While the Court recognized
that the underlying statute’s use of the term “injury”
“can of course carry a fault connotation” in common
usage, it reasoned that statutory “[a]mbiguity is a
creature not of definitional possibilities but of
statutory context.” Jd. at 117-118. And after closely
reviewing the statutory context as well as “[tjextual
cross-reference[s]” to other veterans’ benefits
statutes and “analogous statutes dealing with

18 See, e.g., Dole v. United Steelworkers of Am., 494 U.S. 26, 42-
43 (1990) (“Because we find that the statute, as a whole, clearly
expresses Congress’ intention, we decline to defer to OMB’s
interpretation.”).

20

service-connected injuries” employing the word
“injury,” the Court held that the statute “negate[d] a
fault reading.” Jd. at 118-119. The Court therefore
_ held that because “the text and reasonable inferences
from it give a clear answer,” that “is the end of the
matter’—the regulation could not stand. Jd. at 120.

Notwithstanding the Court’s holding in Brown that
mere “definitional possibilities” do not give rise to
statutory ambiguity under Chevron, the D.C. Circuit
deferred to OSM’s interpretation of Section 522(e)’s
VER clause precisely because the word “rights”
admits of multiple “definitional possibilities.” The
result in Brown, just like the result in Dolan, would
thus have been different under the D.C. Circuit’s
rule: Deference would have been given to the VA’s
regulation simply because “injury,” standing alone,
has multiple definitions. There would have been no
need to eilist the aid of any statutory construction
tools to test the statutes meaning—and no
resolution of the issue at Cheuron step one.

2. Trading venerable tools of statutory construction
for heightened agency deference based on dictionary
construction also led the court of appeals to dismiss
Congress’s long track record with VER clauses like
the one in Section 522(e). See supra at 6-8. Rather
than examine that phrase’s rich history and
recognize that both Congress and property owners
have relied on VER’s settled meaning, the D.C.
Circuit got its rules of construction backwards.
According to the court of appeals, a “term of art” like
“valid existing rights” is merely “a tool by which
Congress delegates policymaking authority through
ambiguity.” App. 10a. This proposition—that the
more Congress uses a term, the less settled its

21

meaning becomes—appears to have no known
provenance (aside, perhaps, from Lewis Carroll).
And for good reason: It inverts this Court’s
presumption that “when Congress uses the same
language in two statutes having similar purposes
*** it is appropriate to presume that Congress
intended that text to have the same meaning in both
statutes.” Smith v. City of Jackson, 544 U.S. 228,
233 (2005) (plurality); see McDermott Int'l, Inc. v.
Wilander, 498 U.S. 337, 342 (1991) (when a statute
uses a term of art, “Congress intended it to have its
established meaning”); Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 254 (1994); Gilbert v. United
States, 370 U.S. 650, 658 (1962); Morissette v. United
States, 342 U.S. 246, 263 (1952).19

Applying this presumption, this Court frequently
looks to Congress’s record of statutory usage for
assistance in interpreting common statutory terms.”°

19 See generally 2B Norman J. Singer, Sutherland Statutory
Construction § 51:2 (7th ed. 2008) (“It is assumed that
whenever the legislature enacts a provision it has in mind
previous statutes relating to the same subject matter. * * *
[T}he new provision is presumed in accord with the legislative
policy embodied in those prior statutes.”); Felix Frankfurter,
Some Reflections on the Reading of Statutes, 47 Colum. L. Rev.
527, 537 (1947) (“[I]f a word is obviously transplanted from
another legal source, whether the common law or other
legislation, it brings the old soil with it.”).

20 See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631 (1998)
(noting “ADA’s definition of disability is drawn almost verbatim
from the definition of ‘handicapped individual’ included in the
Rehabilitation Act”); Independent Fed’n of Flight Attendants v.
Zipes, 491 U.S. 754, 759 n.2 (1989) (“We have stated in the past
that fee-shifting statutes’ similar language is ‘a strong

22

In McDermott, for example, the Court explained that,
while the Jones Act did not define the term
“seaman,” the term is a “maritime term of art” with a
recognized meaning. 498 U.S. at 342. Similarly, in
West Virginia University Hospitals, Inc. v. Casey, 499
U.S. 83 (1991), the Court held that the allowance of
“a reasonable attorney’s fee” under the version of the
fee-shifting statute for civil-rights litigation then in
effect did not encompass fees paid to experts because
Congress’s “record of statutory usage demonstrates
convincingly that attorney’s fees and expert fees are
regarded as separate elements of litigation cost.” Id.
at 88. And in United States Navigation Co. v.
Cunard S.S. Co., 284 U.S. 474 (1932), the Court
explained that because the federal Shipping Act, “[i]n
its general scope and purpose, as well as in its terms,
* ** closely parallels the Interstate Commerce Act,
* ** we cannot escape the conclusion that Congress
intended that the two acts, each in its own field,
should have like interpretation, application, and
effect.” Id. at 481.

The D.C. Circuit's holding that a century’s worth of
VER clauses protecting property rights in more than
100 federal statutes actually makes the term “valid
existing rights” more, not less, opaque cannot be
squared with cases like McDermott, Casey, and
United States Navigation Co. But even beyond that
difficulty, the D.C. Circuit’s new approach—that
Congress’s consistent use of a term opens it up to
varying meanings based on _ shifting agency
prerogatives—is profoundly troubling on its own

indication’ that they are to be interpreted alike.”) (citation
omitted).

23

terms: It effectively compels a court to defer to an
agencys interpretative gloss precisely because
Congress has endeavored to fix the statute’s meaning
through repeated and consistent use of the same
words in the same way. That will undoubtedly cause
serious mischief where, as here, an agency
administers different statutory schemes that use the
same or similar terms. See, e.g., Environmental
Action, Inc. v. FERC, 939 F.2d 1057, 1063 (D.C. Cir.
1991) (“Without more support, and a distinction that
iustifies the seemingly different approaches that the
FERC has taken under two very similar statutes
[i.e., the Natural Gas Act and the Federal Power
Act], we cannot accept” FERC’s_ conflicting
interpretations of two similar provisions). Indeed,
because some of the lands designated under Section
522(e) are created or governed under federal laws
containing their own VER clauses,”! the D.C.
Circuit’s approach (and OSM’s interpretation) is sure
to sow confusion as to which, if any, “valid existing
rights” are protected under statutes intended to work
together. ,

3. With its singular attention to the meaning of the
word “rights” in the statute, and the new measure of
deference that approach afforded, the D.C. Circuit
disregarded another essential source of congressional
intent: SMCRA’s structure. The result was to put
yet more distance between the rule adopted by the
court of appeals and this Court’s precedents. Thus,
the D.C. Circuit did not stop to consider the sharp
incongruity between OSM’s “good faith/all permits”

21 See 30 U.S.C. § 1272(e)(1); 16 U.S.C. § 1133(d)(3); id.
§ 1280(a)(ii)-(iii) & (b).

24

plus-factor and the other provisions of SMCRA
requiring one with VER to obtain all necessary
regulatory permits before mining. See 30
U.S.C. §§ 1256-1266 (establishing permit process,
requirements, and performance standards); 64 Fed.
Reg. at 70,771 & 70,776-77. The fact that Congress
elsewhere in the Act required miners with VER to
obtain permits before mining strongly signals that
the legislature did not intend to require miners to
obtain those same permits to qualify for VER in the
first place.

Where Congress sought to condition exemptions
from SMCRA on the attainment of regulatory
permits, moreover, it affirmatively said so. See 30
U.S.C. § 1260(b)(5)(B); id. § 1260(d)(2); id.
§ 1272(a)(6). Thus, SMCRA exempts from its
restrictions on mining operations that adversely
impact alluvial valley floors those operations that
“had obtained specific permit approval by the State
regulatory authority to conduct surface coal mining
operations within said alluvial valley floors” one year
before SMCRA’s enactment. Jd. § 1260(b)(5)(B).
The Act similarly exempts from its restrictions on
mining operations in areas containing prime
farmland those operations permitted before
SMCRA’s enactment. See id. § 1260(d)(2).

The D.C. Circuit wholly disregarded these telling
structural features of SMCRA, _ effectively
announcing that a statute’s structure need not be
consulted to interpret it. But this Court has always
required courts to read statutory provisions together
to glean their meaning. See, e.g., Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)
(noting “longstanding practice of construing statutes

25

in pari materia”); Riverside Bayview Homes, 474 U.S.
at 139 n.11 (explaining that “various provisions of
the [Clean Water] Act should be read in pari
materia’). And while the D.C. Circuit considered it
unnecessary to draw any inference from the fact that
Congress excluded particular language in one section
of a statute that it included in other sections of the
same statute, this Court has long held just the
opposite. See, e.g., KP Permanent Make-Up, Inc. v.
Lasting Impression I, Inc., 543 U.S. 111, 118 (2004)
(“‘(W]here Congress includes particular language in
one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’ ”) (quoting & citing
Russello v. United States, 464 U.S. 16, 23 (1983)).
This Court requires courts to pay attention to
statutory structure. The court of appeals
disregarded that important constraint on an agency’s
interpretative choices.
* *k *

The D.C. Circuit’s novel approach to Chevron has
introduced new and troubling uncertainty into the
traditional understanding of a statutory term of art
used in many federal statutes. Given the sheer
number of agency interpretations the D.C. Circuit
reviews each year, its newly minted rule of decision
is also sure to do yet more harm if it takes hold. The
Court should grant certiorari to clarify that it is
Congress—not the Executive Branch—whose intent
alone matters at Chevron step one. S. Ct. Rule 10(c).

26

II. BY REJECTING RIVERSIDE BAYVIEW
HOMES’ CONSTITUTIONAL AVOID-
ANCE RULE, THE RULING BELOW
TRIGGERS A CIRCUIT SPLIT AND
INJECTS FURTHER UNCERTAINTY
INTO THE RULE’S PROPER APPLI-

CATION.
The decision below also injects needless confusion
into another settled rule: that agency

interpretations that threaten takings should be
judicially narrowed to avoid constitutional
difficulties.

It has long been the rule that courts do not owe the
customary Chevron deference to an agency’s
statutory interpretation that raises’ serious
constitutional difficulties. See Edward J. DeBartolo
Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575-576 (1988) (citing NLRB
v. Catholic Bishop of Chi., 440 U.S. 490, 499-501
(1979)); Rust v. Sullivan, 500 U.S. 173, 190-191
(1991). As this Court has explained, “where an
otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will
construe the statute to avoid such problems.”
Edward J. DeBartolo Corp., 485 U.S. at 575; see id.
(rejecting agency interpretation that “pose[d] serious
questions of the validity [of the statute] under the
First Amendment’).

This principle of constitutional avoidance is
particularly appropriate when an _é agency's
interpretation threatens to take private property.
Thus, in Riverside Bayview Homes, this Court
explained that a statute should be given a narrowing
construction where “it appears that there is an

27

identifiable class of cases in which application of
[the] statute will necessarily constitute a taking.”
474 U.S. at 129 n.5. The Court drew this rule from
one of its earlier cases—United States v. Security
Industrial Bank, 459 U.S. 70 (1982)—where it
avoided “a substantial argument” that’ the
retroactive application of a Bankruptcy Code
provision would cause takings by “construing the
statute to apply only prospectively.” 474 U.S. at 129
n.5. As the Court explained there, this limiting
approach is a “sensible” one to follow in cases that
present substantial takings arguments. See id. But
the Court nevertheless declined to follow that
approach in the case before it because it determined
that “there is no identifiable set of instances in which
mere application of the [challenged] permit
requirement will necessarily or even probably
constitute a taking.” Zd.

A. The Lower Courts Are Confused About
How To Apply Riverside Bayview Homes’
Constitutional Avoidance Rule.

In the years since the Court announced the
constitutional-avoidance rule for takings cases, the
lower courts have struggled to understand and apply
it. Four courts of appeals have addressed the
Riverside Bayview Homes takings rule—the Fifth
Circuit, the Eighth Circuit, the Federal Circuit and
the D.C. Circuit—and each has adopted differing
views of it.

The Fifth Circuit. In Texas Office of Public
Utility Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999),
petitioners alleged that the timetable adopted by the
Federal Communications Commission for
implementing its support system to ensure universal

28

telephone service worked a taking and that “the FCC
should adopt a narrow construction of the statutory
language to avoid any constitutional infirmities.” Jd.
at 437. While the Fifth Circuit recognized that
Riverside Bayview Homes _ requires narrowing
constructions in some circumstances, it ultimately
declined to adopt such a construction based on the
likely practical effect of the regulation: “[e]ven if”
the petitioners could show “that some taking will
result,” the court of appeals concluded, petitioners
could not demonstrate “that thefir] losses are so
significant that the ‘net effect’ is confiscatory.” Id.
The court’s holding thus seems to have rested on the
conclusion that the FCC’s timetable worked no
taking. See id. No similar conclusion, of course, can
be reached here.

The Eighth Circuit. In Jowa Utilities Bd. v. FCC,
219 F.3d 744 (8th Cir. 2000), rev'd in part on other
grounds sub nom. Verizon Communications, Inc. v.
FCC, 535 U.S. 467 (2002), petitioners argued that
the forward-looking pricing methodology for
interconnection and unbundled telecommunications
network elements the FCC adopted under the
Telecommunications Act of 1996—known as
TELRIC—‘raise[d] a serious Fifth Amendment
takings issue that the statute should be construed to
avoid.” Jd. at 753. Applying Riverside Bayview
Homes, however, the court of appeals concluded that
“[w]e do not need to disregard Chevron deference and
interpret the statute * * * to avoid an
unconstitutional taking in this instance” because
“[t]he possibility that a regulatory program may
result in a taking does not justify the use of a
narrowing construction.” Jd. at 754. The operative

29

word there was “may”; TELRIC’s impact could not be
known until it was actually implemented, and there
accordingly could be no class of takings claims until
the methodology was used to set actual rates. See
Iowa Utils. Bd., 219 F.3d at 754. No such
uncertainty, of course, exists here.

The Federal Circuit. In Florida Rock Inaus., Inc.
v. United States, 791 F.2d 893 (Fed. Cir. 1986),
Florida Rock, “a large-scale miner of limestone,”
alleged that a large tract of land containing
limestone deposits was taken when the Army
engineers denied it a Clean Water Act permit to
discharge dredged materials into wetlands. Id. at
895. Reviewing the claims court’s award of damages
to Florida Rock, the Federal Circuit, relying upon
Riverside Bayview Homes, explained that, even if a
constitutional violation “occurred here in the form of
a taking without just compensation,” “a more
cautious construction of the Clean Water Act is not
legally required.” Jd. at 900. The reason was the
clear availability of compensation for this particular
taking under the Tucker Act. See id. (explaining if a
taking “occurred here * * * it is cured by the Tucker
Act”).

The D.C. Circuit. In contrast with these Circuits,
which have accepted the Riverside Bayview Homes
canon but found it inapplicable in the particular
factual contexts in which it has been invoked, the
D.C. Circuit has applied the rule on multiple
occasions and even enforced it. See Building Owners
& Managers Ass'n Intl v. FCC, 254 F.3d 89, 99-100
(D.C. Cir. 2001); Transmission Access Policy Study
Group v. FERC, 225 F.3d 667, 690 (D.C. Cir. 2000),
affd sub nom. New York v. FERC, 535 U.S. 1 (2002);

30

National Mining Ass’n v. Babbitt, 172 F.3d 906, 917
(D.C. Cir. 1999); Bell Atl. Tel. Cos. v. FCC, 24 F.3d
1441, 1445-47 (D.C. Cir. 1994); Railway Labor
Executives’ Ass’n v. United States, 987 F.2d 806, 816
(D.C. Cir. 1993); see also GTE Serv. Corp. v. FCC,
205 F.3d 416, 423 (D.C. Cir. 2000) (recognizing “a
broader construction of ‘necessary’ under § 251(c)(6)
might result in an unnecessary taking of private
property”) (emphasis in original).22

The D.C. Circuit gave the fullest exposition of the
Riverside Bayview Homes rule in Bell Atlantic, a case
in which local exchange carriers challenged the
FCC’s authority to require them to _ permit
competitive carriers to physically co-locate facilities
within their central offices. The Bell Atlantic court
explained that the constitutional-avoidance rule
derived from the Constitution’s structural separation
of powers: “Where administrative interpretation of a
statute creates” an identifiable class of takings
claims, the “use of a narrowing construction prevents
executive encroachment on Congress’s exclusive
powers to raise revenue.” 24 F.3d at 1445.
Otherwise, executive-branch agencies could “use
statutory silence or ambiguity to expose the Treasury
to liability both massive and unforeseen.” Id.
Bearing these concerns in mind, the Bell Atlantic
court went on to impose a narrowing construction on
the regulation in question there: The FCC could not

22 Given the heavy volume of agency statutory interpretations
the D.C. Circuit is called on to review, it is unsurprising that
that court has amassed the most experience with the Riverside
Bayview Homes rule. By the same token, the D.C. Circuit’s
sudden rejection of the rule is likely to have the greatest impact
on future agency interpretations.

31

impose a physical co-location requirement because it
“create[d] an ‘identifiable class’ of applications that
would seem to constitute a taking.” Id. at 1446.

B. The Ruling Below Exacerbates The
Confusion In The Lower Courts By
Causing A Circuit Split.

In a sharp—but unexplained—break with its own
precedent, as well as with that of the other Circuits
that have recognized the validity of the Riverside
Bayview Homes rule (if not how or when to apply it),
the court below effectively rendered this strain of the
constitutional-avoidance canon a dead letter. Recall
that OSM itself acknowledged that its regulation
carried “significant takings implications” and even
went so far as to point out that its VER standard
would prevent mining initially in thousands more
acres subject to valid mining rights than would
otherwise be allowed under a different standard. See
64 Fed. Reg. at 70,776, 70,778. Yet the D.C. Circuit
nonetheless concluded that Riverside Bayview Homes
did not come into play because NMA failed to present
sufficient “evidence” that OSM’s regulation created
an “identifiable class” of takings claims. App. 16a.
The D.C. Circuit’s assertion that no “evidence
suggest[ed]” that compensable takings will follow on
OSM’s regulation is strange indeed, given that OSM
acknowledged throughout its preamble’ the
“significant” takings implications of its own
regulation. See 64 Fed. Reg. at 70,777, 70,781,
70,824, 70,827. And there simply can be no doubt
that OSM’s “good faith/all permits” plus-factor
creates an identifiable class of takings cases; OSM
said so. Nor does it take much to discern the class.
The “identifiable class” consists of miners with valid

32

property rights to surface mine coal estates in a
protected area who did not secure (or make a good
faith effort to secure) all permits or authorizations
before the area came under SMCRA’s protections.
See 30 C.F.R. § 761.5; 64 Fed. Reg. at 70,824. And
the number of acres impacted by OSM’s statutorily
impermissible plus-factor will only increase as
additional areas come within Section 522(e)’s
protections. See supra at 12. Riverside Bayview
Homes requires nothing more; the narrowing
construction there was occasioned by “a substantial
argument’—not evidence.

Even more troubling than the D.C. Circuit’s blithe
disregard of the obvious class of takings claims
sparked by OSM’s regulation is its disregard of
earlier cases recognizing that Section 522(e)’s VER
clause is intended to prevent takings—not facilitate
them. See Hodel, 452 U.S. at 297 n.37 (explaining
that takings challenge was “premature” because
“522(e)’s restrictions are expressly made subject to
‘valid existing rights’ ”); National Wildlife Fed’n, 839
F.2d at 749-750 (“Congress *** limited the
application of the surface mining proscriptions to
avoid infringement of existing property rights” and
“did not intend to *** effect takings through
§ 522(e)”). If ever there were occasion to adopt a
narrowing construction of an agency regulation to
avoid the takings difficulties caused by an agency’s
chosen interpretation, it must be where (as here) the
agency selected a discretionary interpretation it
admitted carried the “greatest potential to result in
compensable takings,” 64 Fed. Reg. at 70,781-82, and
where (as here) courts have previously recognized
that Congress sought to avoid that very result in

33

protecting “valid existing rights” in the first place. If
the Riverside Bayview Homes rule does not have any
force in that circumstance, there is no such rule.

* * *

The decision below thus exacerbates the confusion
in the lower courts (including even within the D.C.
Circuit itself) concerning the proper interpretation
and application of the Riverside Bayview Homes rule
of constitutional avoidance. This Court should take
this opportunity to provide guidance to the lower
courts by clarifying when—if ever—statutes that
threaten takings should receive narrowing
interpretive constructions. S. Ct. Rule 10(a).

Ill. THIS CASE PRESENTS AN IDEAL
VEHICLE TO ADDRESS A QUESTION OF
SIGNIFICANT NATIONAL IMPOR-
TANCE.

SMCRA is one of more than 100 federal statutes
and proclamations that protect “valid existing
rights.” See supra at 6-7; App. E. These provisions
collectively affect a diverse group of property owners
dependent upon natural resources including—but by
no means limited to—the coal mimiag industry. See
supra at 7-8. And these provisions have traditionally
been understood to protect pre-existing property
rights from destruction by subsequently enacted
federal laws. See supra at 7-8.

The ruling below directly challenges that
conventional understanding by holding that Section
522(e)’s VER clause protects “equitable interests in
regulatory approval{s],” not property interests. See
supra at 8. That move, made possible only through a
novel interpretative mode out of step with this

34

Court's instructions, carries serious consequences. It
casts grave doubt on the proper interpretation of a
familiar term of art that Congress has used in
numerous statutes scattered throughout the United
States Code. See App. E. It unsettles what had been
settled past interpretations of VER clauses. And its
interpretation is sure to inform future agency and
judicial interpretations of other VER clauses in other
federal statutes and proclamations. The D.C.
Circuit’s VER ruling thus has far-reaching
implications for all industries that invest in property
rights to extract valuable resources from the land.

This Court in the past has recognized the
substantial national significance of SMCRA’s
regime—and of the takings consequences that
potentially attend it. When this Court considered a
pre-enforcement challenge to SMCRA’s
constitutionality in 1981, it found a_ takings
challenge to Section 522(e) “premature” in part
because the statute’s “restrictions are expressly
made subject to ‘valid existing rights.’” Hodel, 452
U.S. at 296 n.37. The Court also at that time
rejected the appellees’ contention, based on a 1980
regulation that the district court had remanded to
the Secretary for reconsideration, that Section
522(e)’s VER clause “applies only to specific surface
mining operations for which all required permits
were issued prior to August 3, 1977, the effective
date of the Act,” explaining that “[t]his interpretation
of the exception is not compelled by either the
statutory language or its legislative history.” Id.
Now that the Secretary, after wavering for nearly a
quarter of a century, has indeed interpreted Section
522(e)’s “valid existing rights” clause to contain a

“

35

“good faith/all permits” plus-factor, the propriety of
that interpretation is squarely presented to this
Court.

This Court should take the opportunity now to
review OSM’s interpretation, because the chance
may not come again. The D.C. Circuit is the
exclusive venue in which national rules and
regulations promulgated by the Secretary—such as
the one at issue here—may be challenged. See 30
U.S.C. § 1276(a)(1) (“Any action by the Secretary
promulgating national rules or regulations * * * shall
be subject to judicial review in the United States
District Court for the District of Columbia Circuit.”).
And because national regulations must be challenged
within 60 days, the legality of the Secretary's VER
rule cannot be contested later as applied in a
particular case. See id. (“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
*** ”): see also Commonwealth of Va. ex rel. Va.
Dep't of Conservation & Econ. Dev. v. Watt, 741 F.2d
37, 41 (4th Cir. 1984) (rejecting as “clearly
subvert[ing] Congressional intent” the view that
“those opposed to a national regulation could simply
ignore the sixty-day statutory time limit prescribed
for bringing an action in the District of Columbia and
obtain relief later in their local jurisdiction”). A split
in lower court authority therefore is unlikely to
emerge. And there accordingly is nothing to be
gained by allowing the issue to further percolate in
the lower courts.

There are no _ impediments, procedural or
otherwise, that would complicate this Court’s

36

consideration of the proper construction of Section
5§22(e)’s VER clause. NMA squarely challenged
OSM’s interpretation of Section 522(e)’s VER clause
below in the agency, at the District Court, and in the
D.C. Circuit, and the court of appeals resolved
NMA’s challenge on the merits.

This Court should act to provide the lower courts
with needed guidance on the correct meaning of this
important statutory term.

CONCLUSION

For all of the foregoing reasons, the petition for a
writ of certiorari should be granted.

Respectfully submitted,
HAROLD P. QUINN, JR. CATHERINE E. STETSON*
NATIONAL MINING CHRISTOPHER T. HANDMAN
ASSOCIATION PAUL A. WERNER
101 Constitution Ave., N.W. HOGAN & HARTSON L.L.P.
Washington, D.C. 20001 555 Thirteenth Street, N.W.
(202) 463-2600 Washington, D.C. 20004

(202) 637-5491

*Counsel of Record Counsel for Petitioner

APPENDIX

>
1

;

la

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Fr. =e es

ie te pd ee ee ee TT la a
é

i

%)

5

Argued September 24, 2007
Decided January 15, 2008
No. 06-5199

NATIONAL MINING ASSOCIATION,
APPELLANT

‘
;
:
3
,
}

ee Sed wee

Vv.

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

APPELLEES

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

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

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

Kathryn E. Kovacs, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With

2a
her on the brief was Robert Oakley, Attorney.

Walton D. Morris, Jr. was on the brief for
appellee Kentucky Resources Council, Inc.

Before: GARLAND and GRIFFITH, Circuit Judges,
and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge
GRIFFITH.

GRIFFITH, Circuit Judge

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

ambiguous phrase.
I.

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

1 Subject to certain exceptions, § 522(e) designates the
following areas: lands within the National Park System, the
National Wildlife Refuge Systems, the National System of
Trails, the National Wilderness Preservation System, the Wild
and Scenic Rivers System; federal lands within a national

3a

are asked to determine how Congress intended that
ban to work. The relevant text of § 522(e) provides:
“After August 3, 1977, and subject to valid existing
rights no surface coal mining operations except those
which exist on August 3, 1977, shall be permitted [in
the statutorily designated areas].” Jd. (emphasis
added).

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

In 1999, the Secretary and the Office of Surface
Mining Reclamation and Enforcement promulgated a
rule through notice-and-comment procedures offering
yet another interpretation of VER. Jd. at 70,831—32
(codified at 30 C.F.R. § 761.5). This “1999 Rule,” as
we will call it, was a setback for parties hoping to
conduct new surface mining operations in § 522(e)
areas. ('nder the 1999 Rule, a miner claiming VER

forest; areas that would adversely affect public parks or places
included in the National Register of Historic Sites; areas within
one hundred feet of the outside right-of-way line of any public
road; and areas within three hundred feet of any occupied
dwelling, public building, school, church, community, or
institutional building, or within one hundred feet of a cemetery.
See 30 U.S.C. § 1272(e).

4a

protection must satisfy two conditions. First, he must
produce a legally binding document that vested him
with the right to mine the land at the time it came
under § 522(e). Second, he must either prove that the
owner of the land, by the time it came under § 522(e),
had made a good faith effort to obtain all necessary
permits for the mining, or else prove that the coal is
_ immediately adjacent to a surface mining operation
in existence on August 3, 1977 and is needed to
ensure the economic viability of the mining operation
as a whole. The Secretary’ prefaced this
interpretation of VER with a 72-page preamble
describing the agency’s long relationship with the
phrase, explaining the rationale for the latest
interpretation, and responding to objections raised
during the notice-and-comment period. Significantly,
the preamble acknowledges that the chosen VER
interpretation protects 3,062 more acres than the
least restrictive alternative and predicts that “few
persons will qualify for VER under this standard.”
Valid Existing Rights, 64 Fed. Reg. 70,766, 70,776,
70,778 (Dec. 17, 1999). |

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

5a

appeals. For the reasons set forth below, we affirm
the district court’s judgment.

II.

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

The district court claimed jurisdiction under 30
U.S.C. § 1276(a)(1), which renders “[a]ny action by
the Secretary promulgating national rules or
regulations . . . subject to judicial review in the
United States District Court for the District of
Columbia Circuit.” But there is no such court within
the federal] judiciary. The judgment the NMA has
asked us to review comes from a court called “the
United States District Court for the District of
Columbia.” See Act of June 25, 1948, ch. 646, 62 Stat.
869, 875, 895 (codified at 28 U.S.C. §§ 88, 132(a)); see
also In re Permanent Surface Mining Regulation
Litig., 653 F.2d 514, 516 n.2 (D.C. Cir. 1981) (noting
§ 1276(a)(1)’s error); In re Surface Mining Regulation
Litig., 627 F.2d 13846, 1350 n.1 (D.C. Cir. 1980)
(same). Because the inferior federal courts are
“creatures of statute,” Bath County v. Amy, 80 U.S.
(13 Wall.) 244, 247-48 (1871), we must pay careful
attention to the legislative texts by which we are
given authority. The district court did not address
the mistake in the statute, so the task falls to us.

“[Cjourts will not give independent meaning to a
word where it is apparent from the context of the act
that the word is surplusage,” Am. Radio Relay

6a

League, Inc. v. FCC, 617 F.2d 875, 879 (D.C. Cir.
1980) (citation and quotation marks omitted), so we
will excise the word “Circuit” from the text of
§ 1276(a)(1). We have no qualms about this erasure,
for both Congress’s intent and the error impeding it
are plain to see. See 2A NORMAN J. SINGER,
SUTHERLAND STATUTES AND STATUTORY
CONSTRUCTION § 47.37 (6th ed. 2002) (“A majority of
the cases permit the elimination or disregarding of
words in a statute in order to carry out the
legislative intent or meaning.”); HENRY M. HART, JR.
& ALBERT M. SACKS, THE LEGAL PROCESS 1375
(William N. Eskridge, Jr. & Philip P. Frickey eds.,
1994) (“Courts on occasion can correct mistakes .. .
when it is completely clear from the context that a
mistake has been made.”). In § 1276(a), Congress
subjected the Secretary’s behavior to judicial review
in various district courts. It would be absurd to
assume that Congress intended to shield the
Secretary’s national rules against judicial review by
granting jurisdiction to a nonexistent court. Cf. Ethyl
Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (en
banc) (Leventhal, J., concurring) (“Congress has been
willing to delegate its legislative powers broadly and
courts have upheld such delegation because there is
court review to assure that the agency exercises the
delegated power within statutory limits ....”). We
read § 1276(a)(1) as granting jurisdiction to the
United States District Court for the District of
Columbia in the present case, notwithstanding
Congress’s erroneous inclusion of the word “Circuit.”
Our jurisdiction to review the final decision of that
court comes from 28 U.S.C. § 1291.

Ii.

We review de novo the district court’s grant of
summary judgment. Nat7 Mining Ass'n v. Fowler,
324 F.3d 752, 756 (D.C. Cir. 2003). Because Congress
has charged the Secretary with implementing the

7a

SMCRA, we review the agency’s interpretation of the
statutory phrase “valid existing rights” under
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See Citizens Coal
Council v. Norton, 330 F.3d 478, 481 (D.C. Cir. 2003)
(applying Chevron to Secretary’s interpretation of
the SMCRA). Where the statute is ambiguous, we
defer to the agency’s reasonable interpretation of its
meaning. By contrast, a clear expression of
congressional] intent will bind agency and court alike.
Chevron, 467 U.S. at 842—43.

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

A.

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

8a

phrase.? We have in the past determined that the
phrase is subject to multiple and _ divergent
_ interpretations. See Nat? Wildlife Fed’n v. Hodel, 839
F.2d 694, 748-51 (D.C. Cir. 1988) (noting the
ambiguity inherent in VER and deferring to the
Secretary’s reasonable interpretation of the phrase
as encompassing so-called “continually-created valid
existing rights”).

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

2 We have noted that the legislative history of the SMCRA
does not illuminate the meaning of VER. See Natl Wildlife
Fed'n v. Hodel, 839 F.2d 694, 749 (D.C. Cir. 1988); cf. Bank One
Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 283
(1996) (Scalia, J., concurring) (“The text’s the thing. We should
therefore ignore drafting history without discussing it, instead
of after discussing it.”).

9a

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

VER could be read, as the NMA suggests, as
protecting “valid existing property rights.” But it
could also encompass a narrower protection, as in

10a

the 1999 Rule. Nothing in § 522(e) suggests Congress
intended to enact the former understanding over the
latter. This case is thus the reverse of Friends of the
Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006). In
Friends of the Earth, we found that Congress’s use of
the word “daily” to modify the phrase “total
maximum loads” removed any ambiguity that
otherwise existed. See 446 F.3d at 144 (“[Bly
providing for the establishment of ‘total maximum
loads,’ Congress could have left a gap for EPA to fill.
Instead, Congress specified ‘total maximum daily
loads.’ “). In § 522(e), by contrast, Congress enacted
the ambiguous “valid existing rights” instead of the
more precise “valid existing property rights.” If VER
operates as a “term of art,” as the NMA suggests, it
is as a tool by which Congress delegates
policymaking authority through ambiguity.? See, e.g.,
Seldovia Native Ass'n v. Lujan, 904 F.2d 1335, 1345
(9th Cir. 1990) (noting the Secretary’s interpretation
of VER in 43 U.S.C. §§ 1701-1782); Alekganik
Natives Ltd. v. United States, 806 F.2d 924, 926 (9th
Cir. 1986) (noting the Secretary’s interpretation of
VER in 43 U.S.C. § 1610(a)(1)); United States v.

3 Academic commentary supports our reading of VER. We
note that the Journal of Mineral Law & Policy, a publication of
the University of Kentucky College of Law, dedicated an entire
issue to analysis of VER as used in the SMCRA. See generally
Valid Existing Rights Symposium, 5 J. MIN. L. & POL’Y 381 et
seq. (1990). Despite devoting 375 pages to the topic, the
symposium participants reached no consensus on VER’s
meaning. As stated by Professor Laitos, in whom the NMA’s
briefing places great faith: “Typically, Congress never lists what
interests it means to include within the ‘valid existing rights’
phrase. The task of interpretation thus falls on the executive
branch (i.e., the Department of Interior) or the courts.” Jan G.
Laitos & Richard A. Westfall, Government Interference with
Private Interests in Public Resources, 11 HARV. ENVTL. L. REV.
1, 19 (1987). Of course, we cannot outsource the task of
statutory interpretation to the professoriate, but we find it
illuminating that scholars with expertise in this area have been
similarly unable to distill a single, clear meaning from VER.

a
? *
%

lla

Garfield County, 122 F. Supp. 2d 1201, 1235—36 (D.
Utah 2000) (noting Park Service’s interpretation of
VER in 16 U.S.C. § 273(a)); cf. Felix Frankfurter,
Some Reflections on the Reading of Statutes, 47
COLUM. L. REV. 527, 545 (1947) (noting “a recent
cartoon in which a senator tells his colleagues ‘I
admit this new bill is too complicated to understand.
We'll just have to pass it to find out what it
means.’ ”).

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

B.
Having satisfied ourselves that VER is

ambiguous, we defer to the Secretary’s interpretation
of the phrase if it “is based on a_ permissible

12a

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

The 1999 Rule remains true to the authority
delegated to the Secretary in the SMCRA by
protecting against the harmful effects of surface
mining that Congress sought to ameliorate.
Providing this protection is the primary aim of the
statute. See 30 U.S.C. § 1201(e) (declaring that
regulation of surface coal mining “is an appropriate
and necessary means to minimize so far as
practicable the adverse social, economic, and
environmental effects of such mining operations”);
id. § 1201(c), (k) (warning of deleterious effects of
surface coal mining); id. § 1202(a) (stating that a
purpose of the SMCRA is to “establish a nationwide
program to protect society and the environment from
the adverse effects of surface coal mining
operations’); id. § 1202(f) (stating that a purpose of
the SMCRA is to “strike a balance between

4 Given the overlap between step-two Chevron review and the
arbitrary-and-capricious review called for by § 1276(a)(1) and
the APA, see Shays v. FEC, 414 F.3d 76, 96-97 (D.C. Cir. 2005)
(collecting cases), the contention that the 1999 Rule violates
§ 1276(a)(1) fails for similar reasons. In the preamble to the
1999 Rule, the Secretary “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action.” Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983).

13a

protection of the environment .. . and the Nation’s
need for coal as an essential source of energy”).
Therefore it is not surprising that the Secretary has
promulgated an interpretive rule that cuts against
the interests of some miners.

The NMA’s suggestion that the SMCRA effected
robust protection of miners’ property rights is belied
by the way Congress used the word “property” in
that statute. Of the twenty-nine instances in which
“property” appears, only one refers to protecting the
property rights of subsurface owners of the mineral
estate. Id. § 1304(g) (concerning coal owned by the
United States). Many uses of “property” concern the
protection of surface or adjacent property owners
against the harmful effects of surface mining, id.
§§ 1201(c), 1233(a)(1)(A), 1239(a), 1253(a)(15)(C),
1253(a)(17), 1257(f, 1269(a), 1270(f), 1272(a)(3)(D),
1307(b), and several mentions of “property” run
counter to miners’ property rights, in that they
authorize government entry onto mined property to
assess and remedy environmental degradation
caused by strip mining, id. §§ 1237(a), 1237(b),
1240(b).

Save for repeating its argument that VER is
unambiguous and accusing the Secretary of “flip-
flopping,” Appellant’s Br. at 53, the NMA provides
little resistance on this front.5 With the exception of
the constitutional avoidance argument, discussed
next, the NMA offers no basis for finding the
Secretary's interpretation unreasonable. If that
argument fails, we must accord Chevron deference to
the 1999 Rule. See Consumer Elecs. Ass’n v. FCC,
347 F.3d 291, 299 (D.C. Cir. 2003) (“Here, however,

5 The NMA’s “flip-flopping” point ignores the agency’s
obligation to “consider varying interpretations and the wisdom
of its policy on a continuing basis,” Chevron, 467 U.S. at 863—
64.

l4a

[petitioner] advances no additional argument beyond
those already discussed as part of step one, and so
we have no basis for finding the Commission’s
interpretation unreasonable. In any event, the
language of [the statute] plainly admits of the
Commission’s interpretation, and it therefore is a
permissible construction of the statute.”).

The NMA asserts that the 1999 Rule runs afoul
of both the Due Process and Takings Clauses of the
Fifth Amendment, an argument raised to invoke the
canon of constitutional avoidance. Because the
judiciary must rightly presume that Congress acts
consistent with its duty to uphold the Constitution,
courts make every effort to construe statutes so as to
find their constitutional foundations and thus avoid
needless constitutional confrontations. See Edward
J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988); Ashwander
v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936)
(Brandeis, J., concurring). This canon of
constitutional avoidance trumps Chevron deference,
see DeBartolo, 485 U.S. at 574—77, and we will not
submit to an agency’s interpretation of 2 statute if it
“presents serious constitutional difficulties,”
Chamber of Commerce v. FEC, 69 F.3d 600, 605
(D.C. Cir. 1995). But we do not abandon Chevron
deference at the mere mention of a_ possible
constitutional problem; the argument must be
serious. See Republican Nat'l Comm. v. FEC, 76 F.3d
400, 409 (D.C. Cir. 1996). The NMA’s arguments are
not.

Though its briefs are unclear, the NMA appears
to argue that its procedural due process rights were
violated because the 1999 Rule created no
mechanism by which miners could comply with the
good-faith permitting requirement had they not
already done so by August 3, 1977. The NMA argues
that United States v. Locke, 471 U.S. 84, 108 (1985),

15a

and Texaco, Inc. v. Short, 454 U.S. 516, 531-32
(1982), require such a mechanism. But those cases
dealt with a_e different type of legislative
determination than we have here. In both Locke and
Texaco, a legislature addressed a dispute over
dormant mines by creating a process that would
allow miners to protect their claims. The issue in
those cases was whether claimants had been
improperly denied their rights to make their claims.
In § 522(e), Congress chose a different means to
address a problem: It prohibited new surface mining
in sensitive areas for all but those who could show a
valid existing right to mine the land. Congress
created no process by which to abide, no regulatory
regime with which to comply. It simply declared
surface mining off limits for those who had no valid
existing rights. Congress created no process that the
NMA can successfully argue it was denied.

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

This is not to say that the canon of constitutional
avoidance can be ignored with respect to every
argument sounding in the Takings Clause. The
Supreme Court has recognized that the Claims Court
is not a proper venue if a statute creates “an
identifiable class of cases in which application of

16a

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

IV.

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

Affirmed.

17a

APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 00-283 (RWR)

NATIONAL MINING ASSOCIATION,
Plaintiff,

v.
LYNN SCARLETT, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff National Mining Association (“NMA”)
challenges as arbitrary, capricious, or otherwise
inconsistent with the law the 1999 final rule of the
Office of Surface Mining Reclamation and
Enforcement (“OSM”) and the Secretary of the
Interior (“Secretary”)! interpreting “valid existing
rights” under the Surface Mining Control and
Reclamation Act of 1977 (“SMCRA” or “the Act”), 30
U.S.C. §§ 1201 et _seq., which prohibits new surface
coal mining operations on specified lands subject to

1 Lynn Scarlett, the current Acting Secretary of the Interior
and Jeffrey Jarrett, the current Director of the Office of Surface
Coal Mining and Reclamation, are substituted as defendants in
lieu of former Secretary Bruce Babbit and former Director
Kathleen Karpan. See Fed. R. Civ. P. 25(d)(1).

18a

valid existing rights. NMA alleges that the final rule
improperly limits the circumstances under which
valid existing rights will be recognized, contrary to
clear Congressional intent. NMA has moved for
summary judgment, and the Secretary and OSM,
and intervenor-defendants, have cross-moved for
summary judgment. Because NMA has failed to
show that the 1999 final rule is contrary to the clear
intent of Congress, arbitrary, capricious, or
otherwise inconsistent with the law, NMA’s motion
for summary judgment will be denied. Moreover,
because the Secretary's interpretation of valid
existing rights is a permissible construction of the
statute and the agency reviewed all the relevant data
in reaching its conclusion, defendants’ and
intervenor-defendants’ motion for summary
judgment will be granted.

BACKGROUND

The SMCRA was passed in 1977 as “a
comprehensive statute designed to ‘establish a
nationwide program to protect society and the
environment from the adverse effects of surface coal
mining operations.” el_v. Virginia Surfa
Mining and Reclamation Assoc., 452 U.S. 264, 268
(1981) (““VSMRA”) (quoting 30 U.S.C. § 1202(a)).
Congress sought to “strike a balance between
protection of the environment and agricultural
productivity and the Nation’s need for coal as an
essential source of energy.” 30 U.S.C. § 1202(f).
Section 522(e) of the Act prohibits new surface coal
mining operations on certain lands directly declared
by Congress to be unsuitable for mining.? 30 U.S.C.

2 These lands include the National Park System, the National
Wildlife Refuge Systems, the National System of Trails, the
National Wilderness Preservation System, the Wild and Scenic
Rivers System, federal lands within any national forest,
publicly owned parks or historic sites that will be adversely
affected by mining, areas within one hundred feet of public
roads, areas within three hundred feet of occupied dwellings or

19a

§ 1272(e)(1)-(5); see also Nat'l Wildlife Fed. v. Hodel,
839 F.2d 694, 749 (D.C. Cir. 1988). However, the
prohibition of new mining operations on these lands
is “subject to valid existing rights.” Id. Congress
failed to define or elaborate on the meaning of “valid
existing rights” in the statutory language of the
SMCRA or in its legislative history. See Nat’
Wildlife Fed. v. Hodel, 839 F.2d at 749. The meaning
of valid existing rights in the SMCRA has been the
subject of extensive litigation since the passage of
the Act, and in 1999, OSM promulgated the latest
iteration of regulations defining the phrase. See
Valid Existing Rights, 64 Fed. Reg. 70766, 70766-838
(Dec. 17, 1999).

I. REGULATORY HISTORY

A. 1979 regulation

OSM first promulgated a final rule defining
valid existing rights for SMCRA § 522(e) in 1979.
This first final rule

provided that, except for haul roads,
[valid existing rights] included only
those property rights in existence on
August 3, 1977, the owners of which
either had obtained all necessary
permits for the proposed surface coal
mining operation on or before August 3,
1977 (the ‘all permits’ standard), or
could demonstrate that the coal for
which the exception was sought was
both needed for and immediately
adjacent to a surface coal mining
operation in existence on August 3, 1977
(the ‘needed for and adjacent to’
standard).

public and community buildings, and areas within one hundred
feet of a cemetery. See 30 U.S.C. § 1272(e)(1)-(5).

20a

64 Fed. Reg. at 70769-70 (citing 44 Fed. Reg. 14902,
15342 (Mar. 13, 1979)). Several plaintiffs challenged
the adoption of the “all permits” standard defining
valid existing rights, arguing, among other things,
that the standard was contrary to Congressional
intent to preserve state law property rights, that it
constituted an unconstitutional taking, and that it
was arbitrary and capricious. See In re Permanent
Surface Mining Regulation Litigation, 14 Env’t Rep.
Cas. (BNA) 1083, 1090-91 (D.D.C. Feb. 26, 1980)
(“PSMRL_°”’). The district court remanded the
regulation back to OSM explaining that the “all
permits” standard must also include individuals who
had not yet obtained all permits but had made a
good-faith attempt to do so. Id. at 1091. The PSMRL
I court did not reach the question of Congressional
intent explaining that the Secretary had conceded
that Congress intended valid existing rights “to
encompass property rights recognized as valida under
state case law.” Id. at 1090. The court also declined
to reach the takings challenge to the “all permits”
standard because the plaintiffs’ claim was
“hypothetical” and did not present the court with
sufficient facts to decide the issue. Id. at 1091. On
appeal, because the government informed the court it
was reconsidering the 1979 rule, the D.C. Circuit
remanded the case to the district court. In so doing,
the D.C. Circuit explained that the district court
judgment should not be considered final and that the
issues and arguments raised should be considered
during the planned Cr ag revision process. 64

Fed. Reg. at 70770 (citing In re Permanent Surface

Mining Regulation Litigation, No. 80-1810, Order of
Remand (D.C. Cir. Feb. 1, 1983). (See Pl.’s Stmt. of

Material Facts 4 16.) In 1980, OSM suspended the
1979 final rule and announced that in the interim
period the agency would interpret valid existing
rights to include a property rights holder who had
obtained all permits or had made a good faith effort

2la

to obtain all permits. 64 Fed. Reg. at 70770. (See
Pl.’s Stmt. of Material Facts § 17.) This standard has
come to be known as the “good faith/all permits”
standard. Id.

B. 1983 Regulation And 1986 Suspension
Notice

In 1983, OSM issued a final rule adopting a
“takings” standard for valid existing rights. The rule
provided that a valid existing right would exist

for an area protected under section
522(e) of the Act on August 3, 1977, if
the application of any of the
prohibitions contained in that section to
the property interest that existed on
that date would effect a taking of the
person’s property which would entitle
the person to just compensation under
the Fifth and Fourteenth Amendments
to the United States Constitution.

(Pl.’s Stmt. of Material Facts J 22) (quoting 30 C.F.R.
§ 761.5 (1983).) See 64 Fed. Reg. at 70770. In
settling on this rule, OSM rejected all six rules,
including a “good faith/all permits” standard, that it
had proposed in 1982. 64 Fed. Reg. at 70770. (See
Pl.’s Stmt. of Material Facts § 20.) Several plaintiffs
challenged the final rule arguing that the rule was so
different from the various proposed rules that the
agency was required to have an additional period for

notice and comment. In re: P nent e
Mining Litigation, 22 Env’t Rep. Cas. (BNA) 1557,
1558-59 (D.D.C. Mar. 1, 1985) (““PSMRL IT’). The

PSMRL II court agreed and remanded the rule to the
agency. Id. at 1559, 1567. In a 1986 suspension
notice, OSM rescinded the rule in order to comply
with the court’s order and reinstated the “good
faith/all permits” standard. 64 Fed. Reg. at 70770.
(See Pl.’s Stmt. of Material Facts 4 26.)

22a

+f 1988 and 1991 Rulemaking and
the Energy Policy Act of 1992

In 1988, OSM proposed, but later withdrew to
allow further study, a rule defining valid existing
rights as including the “good faith/all permits”
standard and an “ownership and authority” standard
under which valid existing rights could be
established by demonstrating ownership of the coal
and authority te mine it according to applicable state
law. 64 Fed. Reg. 70770-71. (See Pl.’s Stmt. of
Material Facts 4 27-34.) In 1990, OSM and the
University of Kentucky College of Law cosponsored a
symposium on the meaning of valid existing rights in
§ 522(e) of the SMCRA. 64 Fed. Reg. at 70771. See
generally Symposiu n Valid Existing Ri ‘
of Min. L. & Pol’y 381 (1990). “The participants [of
the symposium] provided extensive analyses of
takings jurisprudence and case law related to [valid
existing rights], but they did not reach a consensus
on how to determine [those rights].” 64 Fed. Reg. at
70771. Still seeking to comply with the court’s order
in PSMRL II, in 1991, OSM proposed to define valid
existing rights as including the “takings” standard,
the “good faith/all permits” standard, and the
“needed for and adjacent to” standard. 64 Fed. Reg.
at 70771. (See Pl.’s Stmt. of Material Facts 9 40.)

Before OSM promulgated a final rule,
Congress enacted and the President signed the
Energy Policy Act of 1992, directing the Secretary to
interpret valid existing rights as set forth in the 1986
suspension notice that had adopted the “good
faith/all perm‘ts” standard. See Pub. L. No. 102-486,
206 Stat. 2776 (1992). The Energy Policy Act of 1992
expired on October 23, 1993. However, the “good
faith/all permits” standard continued as_ the
regulatory standard for valid existing rights through
October 1, 1995 because Congress placed
moratoriums on publication of a new final rule on the

23a

definition of valid existing rights. See, eg.,
Department of the Interior and Related Agencies
Appropriations Act, Pub. L. No. 103-332, 108 Stat.
2499 (1995); see also 64 Fed. Reg. at 70771.

D. 1999 regulation

In 1997, after evaluating the comments
received on the 1991 proposed rule, OSM withdrew
the rule and proposed a rule defining valid existing
rights with the “good faith/all permits” standard.
See Valid Existing Rights, 42 Fed. Reg. 4836 (Jan.
31, 1997). In December 1999, the agency
promulgated a final rule by largely adopting its
proposed rule. Under the rule, a person can establish
valid existing rights by demonstrating a property
right under applicable state law existing at the time
the land came under protection of the SMCRA that
vests the person with the right to conduct the
intended type of surface coal mining intended, and
(1) by having acquired or made a good-faith effort to
acquire all necessary permits to conduct mining
before the land came under protection of the act, or
(2) demonstrating that the land is needed for and
immediately adjacent to a surface coal mining
operation. See 30 C.F.R. 761.5. The rule also
recognizes valid existing rights for use or
construction of roads on protected land under certain
circumstances. Id.

{]. THE RULEMAKING PROCESS FOR THE
1999 FINAL RULE

During the rulemaking process for the 1999
final rule, OSM considered several alternative
definitions of valid existing rights, weighed the
environmental impact of each alternative and
considered the legislative history of SMCRA § 522(e),
relevant litigation and case law, and comment letters
before selecting the “good faith/all permits” and
“needed for and adjacent to” standards.

24a

A. Alternative regulatory standards

The alternative regulatory standards OSM
considered included the “needed for and adjacent to”
standard in combination with each of the following
standards: (1) a “good faith/all permits” standard, (2)
a “good faith/all permits or takings” standard under
which valid existing rights could be established by a
good faith effort to obtain all necessary permits or if
applying the prohibitions of § 522(e) would result in
an unconstitutional taking, (3) an “ownership and
authority standard” under which a person claiming a
valid existing rights exception would be required to
demonstrate both a property right to the coal and the
right to mine by the method intended, and (4) a
“bifurcated” standard, under which either the
“ownership and authority” standard or the “good
faith/all permits” standard would apply depending on
whether and when the mineral rights were severed
from the estate. 64 Fed. Reg. at 70775. OSM
concluded that the good faith/all permits and needed
for and adjacent to standard? “best achieves
protection of the lands listed in section 522(e) in a
manner consistent with congressional intent at the
time of SMCRA’s enactment{,]” while simultaneously
protecting “the interests of those persons who had
taken concrete steps to obtain regulatory approval
for surface coal mining operations on lands listed in
section 522(e) before those lands came under the
protection” of the SMCRA. Id. at 70776. OSM also
determined that adoption of the “good faith/all
permits” standard would cause the least disruption
to the current State regulatory programs because “20
of the 24 approved State regulatory programs under

3 For brevity, this standard will be referred to as the “good
faith/all permits” standard, but encompasses the recognition of
valid existing rights in certain circumstances for use or
construction of roads.

25a

SMCRA already rely upon either the good faith/all
permits standard or the all permits standard.” Id.

B. Environmental and economic impact

OSM analyzed the environmental and
economic impacts of each of these alternative
regulatory standards and found that “compared with
_ the other alternatives considered, the good faith/all
permits standard is the most protective of the lands
listed in section 522(e).” Id. In support of its finding,
OSM cites an environmental impact statement that
predicts that the adoption of the “takings” standard
would result in the mining of 2,855 more acres of
protected lands between 1995 and 2015 than if the
“good faith/all permits” standard were adopted. Id.
The impact statement predicted that the adoption of
either the bifurcated standard or the “ownership and
authority” standard would result in the mining of
over 3,000 additional acres comparatively during the
same time period. Id. OSM emphasized that the
“additional disturbance would occur entirely on some
of the lands for which the Senate Committee
expressed the most concern.” Id. In analyzing the
economic impact of each proposed rule, OSM found
only “negligible differences among the alternatives in
terms of their economic impact.” Id.

C. onsideration of legislative histo

OSM also considered the legislative history of
SMCRA § 522(e), but was unable to discern from
Congress “clear or dispositive direction on the
meaning or purpose of [valid existing rights.]” Id.
OSM grants that “[t]here are credible supporting and
opposing arguments for each alternative,” but
ultimately credits the Senate and House committee
reports on the bills that eventually became the
SMCRA to conclude that “Congress’ purpose in
enacting section 522(e) was to prevent new surface
coal mining on the lands listed in that section.” Id.

26a

OSM specifically cites the following language from
the Senate Committee on Energy and Natural

Resources:

[T]he Committee has made a judgment
that certain lands simply should not be
subject to new surface coal mining
operations. These include primarily and
most emphatically those lands which
cannot be reclaimed under the
standards of this Act and the following
areas dedicated by the Congress in trust
for the recreation and enjoyment of the
American people: lands within the
National Park System, the National
Wildlife Refuge System, the National
Wilderness Preservation System, the
Wild and Scenic Rivers System,
National Recreation Areas, National
Forests with certain exceptions, and
areas which would adversely affect
parks or National Register of Historic
[Places].

In addition, for reasons of public
health and safety, surface coal mining
will not be allowed within one hundred
feet of a public road (except to provide
access for a haul road), within 300 feet
of an occupied building or within 500
feet of an active underground mine.

Since mining has traditionally
been accorded primary consideration as
a land use there have been instances in
which the potential for other equally or
more desirable land uses has been
destroyed. The provisions discussed in
this section were specifica!ly designed
and incorporated in the bill in order to

27a

restore more balance to Federal land
use decisions regarding mining.

S. Rep. No. 95-128, at 55 (1977). OSM also cites the
House Committee on Interior and Insular Affairs
report, which reads in part:

[T]he decision to bar surface mining in
certain circumstances is better made by
Congress itself. Thus section 522(e)
provides that, subject to valid existing
rights, no surface coal mining operation
except those in existence on the date of
enactment, shall be permitted on lands
within the boundaries of units of certain
Federal systems such as the national
park system and national wildlife refuge
system[], on Federal lands within the
boundaries of any national forest
(except in those circumstances set forth
in Sec. 522(c) of the committee
amendment) or in_ other _ special
circumstances, that is within 100 feet of
public roads, 300 feet of public buildings
or churches, or 100 feet of a cemetery.

H.R. Rep. No. 95-218, at 95 (1977). OSM also
explained that its definition for valid existing rights
differs from the definition of the phrase in other
federal statutes because unlike other statutes, the
SMCRA applied to both Federal and non-Federal
lands, concerns only a person’s right to use land for a
particular purpose and does not involve a transfer of
property rights or interests from the Federal
government to another party. 64 Fed. Reg. at 70793.

D. Review of relevant litigation

OSM also. reviewed _ relevant litigation

concerning valid existing rights and potential
takings under the SMCRA. OSM addressed the

28a

statement by the Supreme Court in VSMRA, 452
U.S. at 296 n.37, that an “all permits” standard for
the valid existing rights exception “is not compelled
by either the statutory language [of the SMCRA] or
its legislative history.” OSM reasoned that VSMRA
did not reject the possibility of a “good faith/all
permits” standard because the Court chose
“decidedly neutral” language in stating simply that
an “all permits” rule with no good-faith exception
was not compelled by SMCRA and because “the
definition of [valid existing rights] was not before the
court” in that case. 64 Fed. Reg. at 70779. In
addition, OSM explained its reliance on PSMRL I
where the court held that “a good faith attempt to
obtain all permits before the August 3, 1977 cut-off
date should suffice for meeting the all permits test”
that was promulgated in 1979. PSMRL I, 14 Env't
Rep. Cas. (BNA) at 1091; see 64 Fed. Reg. at 70779.
OSM also explained that PSMRL I held only that
state law must be taken into account during the
property rights demonstration prong of a permit-
based standard requiring valid conveyance of a
property right and receipt of all perm

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0166%3A1. Public record. Not legal advice.