Opposition Brief — National Mining Association Association v. Kempthorne (No. 08-63)

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No. 08-63

Jn the Supreme Court of the GAnited States

NATIONAL MINING ASSOCIATION, PETITIONER

v.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,

ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

DARYL JOSEFFER

Acting Solicitor General

Counsel of Record

RONALD J. TENPAS

Assistant Attorney General

KATHRYN E. KOVACS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The Surface Mining Control and Reclamation Act of

1977 (SMCRA), 30 U.S.C. 1201 et seg., generally prohib-

its surface coal mining operations in certain specified

areas but makes that prohibition “subject to valid exist-

ing rights.” 30 U.S.C. 1272(e). The question presented

is whether the definition of “valid existing rights” con-

tained in regulations issued by the Department of the

Interior’s Office of Surface Mining Reclamation and En-

forcement in 1999 is a permissible construction of the

SMCRA under Chevron U.S.A. Inc. v. NRDC, 467 U.S.

837 (1984).

(I)

TABLE OF CONTENTS

Page

Te se iu iat eeeheecduneu os bEdeeel 1

Nee a a edie s oie oa 1

Nee et ad lee 2

CLs. ccces esses waensadvovcssendscboavbetad aan 13

ke ele cae ele us em eae 28

TABLE OF AUTHORITIES

Cases:

Ashwander v. TVA, 297 U.S. 288 (1936) ............... 21

Begay v. United States, 128 S. Ct. 1581 (2008) ......... 15

Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441 (D.C. Cir.

a i a a a Ne ts ony 12, 13, 25

Brown v. Gardner, 513 U.S. 115 (1994) ................ 16

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .. 12, 13

Citizens Coal Council v. Norton, 330 F.3d 478 (D.C.

Cir. 2003), cert. denied, 540 U.S. 1180 (2004) ......... 2

Clark v. Martinez, 543 U.S. 371 (2005) ................ 21

Cuellar v. United States, 128 S. Ct. 1994 (2008) ........ 15

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) .......... 22

Environmental Def. v. Duke Energy Corp., 1278. Ct.

Pree cl cock Le ineheesekusee sees 19, 27

General Dynamics Land Sys., Inc. v. Cline, 540 U.S.

SAE Sg ae a ros Rape a 18

Hodel v. Virginia Surface Mining & Reclamation

Poo et eee eee 10, 21

HolRail, LLC v. Surface Transp. Bd., 515 F.3d 1313

ET ld oc ha 6 oss wo bie $0da odes Rae's bi 16

(IIT)

lV

Cases—Continued: Page

Keystone Bituminous Coal Ass'n v. DeBenedictis,

eee Cure eee es ie eee 24

Knight v. Commissioner, 128 S. Ct. 782 (2008) ......... 15

National Mining Ass’n v. Babbitt, 172 F.3d 906

itnins 3h hS 65a te REN Cea sees eee’ 13

National Mining Ass’n v. United States Dep't of the

Interior, 251 F.3d 1007 (D.C. Cir. 2001) ............. 2

NWF v. Hodel, 839 F.2d 694 (D.C. Cir.

BEE Shae Nis puderiees adnekevenutntsre 5, 9, 11, 14,17

Permanent Surface Mining Regulation Litig., In re:

No. 80-1810 (D.C. Cir. Feb. 1, 1983) .............. 4

22 Env’t Rep. Cas. 1557 (D.D.C. 1985), aff’d in

part and rev’d in part swb nom. NWF v.

Hodel, 839 F .2d 694 (D.C. Cir. 1988) ........... 5

14 Env’t Cas. Rep. 1083 (D.D.C. 1980) ............ 4

Stearns Co., Ltd. v. United States, 396 F.3d 1354

(Fed. Cir.), cert. denied, 546 U.S. 875 (2005) ......... 24

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

I 2 alas 5 Kw ewbdbu ede see wewet 15

United States v. Riverside Bayview Homes, 474 U.S.

RE ob bebedtnckitsdeneneas 12, 21, 22, 23, 24, 25

United States v. Security Indus. Bank, 459 U.S. 70

PRS bs cowdcmneohonsee4ee ease abciwenetoescus 22

United States v. Williams, 128 S. Ct. 1830 (2008) ....... 15

Wilbur v. United States ex rel. Krushnic, 280 U.S.

DEED ccceiccrussesiuieaseseouuiedeetuteeae" 18

Wisniewski v. United States, 353 U.S. 901 (1957) ....... 26

Yt

-

V

Constitution, statutes and regulations: Page

SE eer so 22

EEO TEETEPETTT CTT CTr eee 10

SUE CN ROMIDD nw ccc ev ecccccccccess 10

Act of Nov. 11, 1993, Pub. L. No. 103-138, § 111,

Tee ee Oe a ea rad 606-069 0b.8 7

Act of Sept. 30, 1994, Pub. L. No. 103-332, § 111,

Nee i cee 7

Energy Policy Act of 1992, Pub. L. No. 102-486,

a Sc kis Meee seve soveedee 6 |

Surface Mining Control and Reclamation Act of 1977,

cern op eaes eraengestuewnnenese 2

I Sp onc van dace Sewpanceeacae nea 2

IE Si sc v4 00.scke Venus creenent enn

EE «ec egsebeeb Oowegn eee ere ean 2

EG ince iveeceteveenseneees cane 2

SOD «op vcciicssnivenssmekenmenen 20 |

I ins. s ss oc csecsesdvenseeueenane 2

me EN Sue ce scwccsessncukvucnet passim

RE Ree 2 .

IN os ci.c cds ces deckuoenueenies 24 |

» 30 a a's 6a 00s 6600 cba euvs COwnee 9

Ee SE ES EID. os ccc ec ncnccccvcune 22

Wilderness Act, 16 U.S.C. 1181 et seg. .............4-. 27 ;

Exec. Order 12,630, 3 C.F.R. 554 (1989) ............05. 23 .

30 C.F.R.:

I oo. is si vsinnndwne cannxeiccucs aie 2 .

EE ccseccncht benessedevkahesun. Manne 2

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Regulations—Continued: Page

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Miscellaneous:

44 Fed. Reg. (1979):

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ere e ees bbs ccaceccceccesecssseeauen 3

GP RP CRUD oc ccc ccc ccccsccccccceses 4,5

47 Fed. Reg. 25,279-25,282 (1982) ........cececcceccees 5

48 Fed. Reg. (1983):

OER SS Wink op hue ecceecceyassebaneue’ 5

ee bois cke chee esecsrccocvensteemul 5

51 Fed. Reg. (1986):

een ie 606 bG-o C6 4d tebe tenveseneeee 6

ee se ee wee de cudeddaeeaguee = 6

PEPE, Ldn Soe deaceéekbccceses sauce eau 6

53 Fed. Reg. (1988):

a Oke ik sus aepaecnneeepéeceesakene 6

ee hha ets w ska: sedbecaductuaen 6

EE 6

56 Fed. Reg. 33,163-33,164 (1991) .................4... 6

62 Fed. Reg. (1997):

ek aban dpat wise déeddanse heen 7

Vil

Miscellaneous—Continued: Page

64 Fed. Reg. (1999):

eens ts ot ha eks 66a 0s ene b5R0d aes DORE 7

i i ine i wih da bbe Khe eee Uaaewen 8

SG sd Sn dsb as ceetecvces ceed beevauke 26

sa sd dd iv wha dh woe ae eee 8

een Kcedbs ceabamas nenbadeneshehewee 5

sds bew’s vicbspeeenk esse cudedekesSenn 6

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told Le as wet cd Vw bat wade ebeeeeka mean 9, 10

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i 6 eneneee tek oun ev eneennaspeneeee 8

aie i ube bd he woaevnse ceases 18, 27, 28

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2 Pa ie’

Vill

Miscellaneous—Continued: Page

H.R. Rep. No. 218, 95th Cong. Ist Sess. (1977) ......... 14

Jan G. Laitos, The Nature and Consequence of

‘Valid Existing Rights” Status in Public Land

Law, 5 J. Min. L. & Pol’y 399 (1989-1990) ........... 15

Jan G. Laitos & Richard A. Westfall, Government

Interference with Private Interests in Public

Resources, 11 Harv. Envtl. L. Rev. (1987)........... 15

S. Rep. No. 95-128, 95th Cong., Ist Sess. (1977) ..... 17, 20

Jn the Supreme Court of the Gnited States

No. 08-63

NATIONAL MINING ASSOCIATION, PETITIONER

v.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a)

is reported at 512 F.3d 702. The opinion of the district

court (Pet. App. 17a-36a) is not published in the Federal

Supplement but is available in 36 Envtl. L. Rep. (Envtl.

L. Inst.) 20,090, and is available at 2006 WL 1194224.

JURISDICTION

The judgment of the court of appeals was entered on

January 15, 2008. A petition for rehearing was denied

on March 14, 2008 (Pet. App. 37a-38a). On June 4, 2008,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including July

12, 2008, and the petition was filed on July 14, 2008

(1)

2

(Monday). The jurisdiction of this Court is invoked un-

der 28 U.S.C. 1254(1).

STATEMENT

1. In 1977, Congress enacted the Surface Mining

Control and Reclamation Act (SMCRA or Act),

30 U.S.C. 1201 et seg. In the Act’s statement of purpose,

Congress declared that its aim was to “establish a na-

tionwide program to protect society and the environ-

ment from the adverse effects of surface coal mining

operations,” 30 U.S.C. 1202(a), while “strik[ing] a bal-

ance between protection of the environment and agricul-

tural productivity and the Nation’s need for coal as an

essential source of energy,” 30 U.S.C. 1202(f). See Crtz-

zens Coal Council v. Norton, 330 F.3d 478, 480 (D.C.

Cir. 2003) (upholding regulations defining “surface coal

mining operations”), cert. denied, 540 U.S. 1180 (2004).

The SMCRA is administered by the Department of

the Interior’s Office of Surface Mining Reclamation and

Enforcement (OSM). See 30 U.S.C. 1211(c). States may

assume jurisdiction over surface coal mining operations

on non-Indian lands within their borders by developing

a regulatory program that is no less stringent than the

SMCRA and no less effective than federal regulations

issued under it, see 30 U.S.C. 1253, 1272(a); 30 C.F.R.

730.5, 731.14, 732.15, but OSM retains oversight author-

ity even in those States, see National Mining Ass’n v.

United States Dep't of the Interior, 251 F.3d 1007, 1012

(D.C. Cir. 2001).

2. The SMCRA identifies five types of areas where,

subject to certain exceptions, “no surface coal mining

operations * * * shall be permitted.” 30 U.S.C.

1272(e); see 30 U.S.C. 1272(e)(1)-(5) (listing, inter alia,

lands within the boundaries of the National Park Sys-

3

tem, federal lands within the boundaries of a national

forest, lands “within one hundred feet of the outside

right-of-way line of any public road,” and lands “within

three hundred feet” of homes, schools, churches, and

community or institutional buildings). That general pro-

hibition does not apply, however, to “operations * * *

which exist[{ed] on August 3, 1977,” 30 U.S.C. 1272(e),

the date on which the SMCRA was enacted. It is also

made “subject to valid existing rights.” bid.

The issues presented in this case involve whether the

Department of the Interior has permissibly interpreted

the phrase “valid existing rights” in 30 U.S.C. 1272(e).

a. The first permanent regulations interpreting the

SMCRA were published on March 13, 1979. See 44 Fed.

Reg. 14,902 (1979 regulations). The 1979 regulations de-

fined “valid existing rights” as encompassing two types

of situations. The first was where the property owner

“(hjad been validly issued, on or before August 3, 1977,

all State and Federal permits necessary to conduct such

operations on those lands.” /d. at 15,342. That standard

is known as the “all-permits” standard. The second situ-

ation covered by the 1979 regulations was where a prop-

erty owner “[could] demonstrate to the regulatory au-

thority that the coal [was] both needed for, and immedi-

ately adjacent to, an on-going surface coal mining opera-

tion for which all permits were obtained prior to August

3, 1977.” Ibid. That standard is known as the “needed-

for-and-adjacent-to” standard.

Several parties, including the National Coal Associa-

tion (NCA), one of petitioner’s predecessors, and the

National Wildlife Foundation (NWF) challenged the

1979 regulations. NCA challenged the “all permits stan-

dard,” while NWF supported it. On February 26, 1980,

the district court issued an opinion in which it agreed

4

with the NCA that a party claiming the right to conduct

surface coal mining operations under the “valid existing

rights” provision of 30 U.S.C. 1272(e) should not be re-

quired to have obtained all permits before the SMCRA’s

August 3, 1977, enactment. See Jn re Permanent Sur-

face Mining Regulation Litig., 14 Env’t Rep. Cas.

(BNA) 1083, 1091 (D.D.C. 1980) (PSMRL). Instead, the

district court concluded that “a good faith attempt to

obtain all permits before the August 3, 1977 cut-off date

should suffice,” and it remanded the relevant sub-para-

graph of the 1979 regulations to the agency. /bid. On

May 16, 1989, the district court issued a further opinion

in which it “ordered the Secretary [of the Interior] to

affirmatively disapprove any provision in a State pro-

gram under consideration which incorporate[d] a sus-

pended or remanded Federal regulation.” 45 Fed. Reg.

51,548 (1980).’

While that litigation was pending, “OSM recognized

the need to propose changes to certain sections of” the

1979 regulations. 45 Fed. Reg. at 51,548. OSM issued

orders suspending various sections of the 1979 regula-

tions in November 1979, December 1979, and January

1980. Jbid. On August 4, 1980, OSM issued an order

(August 1980 suspension order) that suspended the por-

tion of the 1979 regulations that defined “valid existing

rights” “insofar as it require[d] that all permits must

have been obtained prior to August 3, 1977.” Ibid. The

August 1980 suspension order stated: “Pending further

rulemaking, the Secretary will interpret this regulation

as requiring a good faith effort to obtain all permits.”

' NCA and others appealed the district court’s decisions, but the

court of appeals never reached the merits because OSM was reconsid-

ering the 1979 rules. PSMRL, No. 80-1810 (D.C. Cir. Feb. 1, 1983).

5

Ibid. That standard is known as the “good faith/all per-

mits” standard. See 64 Fed. Reg. 70,770 (1999).

b. In 1982, OSM published proposed regulations

that contained six possible definitions of “valid existing

rights” in 30 U.S.C. 1272(e). See 47 Fed. Reg. 25,279-

25,282. When OSM finalized those regulations the fol-

lowing year, it rejected all six options and instead adopt-

ed a “takings” standard. See 48 Fed. Reg. 41,313-314

(1983) (1983 regulations). Under that standard, a prop-

erty owner would be deemed to have “valid existing

rights” to conduct surface coal mining operations “if

the application of any of the prohibitions contained in

[30 U.S.C. 1272(e)] to the property interest that existed

on [August 3, 1977] would effect a taking of the person’s

property which would entitle the person to just com-

pensation under the Fifth ana Fourteenth Amendments

to the United States Constitution.” Jd. at 41,349.”

The NWF and others challenged the 1983 regula-

tions’ definition of “valid existing rights,” contending

that it was issued without sufficient notice and comment.

The district court agreed, and remanded ‘iat provision

to the agency for additional proceedings. See PSMRL,

22 Env’t Rep. Cas. (BNA) 1557, 1564 (D.D.C. 1985),

aff’d in part and rev’d in part sub nom., NWF v. Hodel,

839 F.2d 694 (D.C. Cir. 1988); see 64 Fed. Reg. at 70,770.

* The 1983 regulations also provided that the “valid existing rights”

exception to the general prohibition contained in 30 U.S.C. 1272(e)

applied not only to lands that were covered by that provision as of the

SMCRA’s August 3, 1977, enactment, but also to lands that become cov-

ered by that section at a later date, such as “when a park is created or

expanded or a protected structure is built.” 64 Fed. Reg. at 70,770; see

ibid. (describing this provision as “continually created VER”); 48 Fed.

Reg. at 41,349. The D.C. Circuit upheld the validity of the “continually-

created VER” concept in NWF v. Hodel, 839 F.2d 694, 748-751 (1988).

6

On November 20, 1986, OSM issued an order sus-

pending portions of the 1983 regulations in response, in

part, to the district conrt’s March 22, 1985, decision. See

51 Fed. Reg. 41,952 (1986) (November 1986 suspension

order). In the November 1986 suspension order, OSM

suspended “the definition of ‘valid existing rights’” con-

tained in the 1983 regulations. /d. at 41,961. The effect

of that suspension was to rzinstate the “good faith/all

permits” standard that had been in place before the is-

suance of the 1983 regulations. Jd. at 41,954-41,955.

ec. On December 27, 1988, OSM proposed to amend

the regulations in order to permit an applicant to dem-

onstrate “valid existing rights” by satisfying one of

three standards: (1) the good faith/all permits standard;

(2) the needed-for-and-adjacent-to standard; or (3) a

new “{ojwnership and [aJuthority” standard. 53 Fed.

Reg. 52,374, 52,383 (December 1988 proposal). “Under

the ownership and authority standard, a person could

establish [valid existing rights] by demonstrating both

a property right to the coal and the right to mine it by

the method intended, as determined by State law.”

64 Fed. Reg. at 70,771. On July 21, 1989, OSM withdrew

the December 1988 proposal for further study. See

54 Fed. Reg. 30,557 (1989).

d. On July 18, 1991, OSM proposed a definition un-

der which an applicant could demonstrate “valid existing

rights” by satisfying the good faith/all permits standard,

the needed-for-and-adjacent-to standard, or the takings

standard. See 56 Fed. Reg. 33,163-33,164 (1991 pro-

posed rule).

The 1991 proposed rule was never finalized. In Sec-

tion 2504(b) of the Energy Policy Act of 1992, Pub. L.

No. 102-486, 106 Stat. 3105, Congress directed the Sec-

retary of the Interior to “continue in force and effect,”

7

for at least one additional year, the “valid existing

rights” standard contained in the November 1986 sus-

pension notice, which, as noted previously, incorporated

the good faith/all permits and needed-for-and-adjacent-

to standards. In addition, the relevant appropriations

acts for the next two years specifically prohibited the

Department of the Interior from using any appropriated

funds to publish a rule defining “valid existing rights” or

to disapprove any existing state definition of that term.

See Act of Nov. 11, 1993, Pub. L. No. 103-138, § 111, 107

Stat. 1399; Act of Sept. 30, 1994, Pub. L. No. 103-332,

§ 111, 108 Stat. 2519.

3. a. On January 31, 1997, OSM published a pro-

posed rule under which an applicant seeking to demon-

strate “valid existing rights” would be required to sat-

isfy either the good faith/all permits standard or the

needed-for-and-adjacent-to standard. 62 Fed. Reg.

4844-4846, 4860.

b. On December 17, 1999, OSM published the final

rule that is at issue in this case. See 64 Fed. Reg. at

70,766 (1999 regulations). The 1999 regulations define

“valid existing rights” as “a set of circumstances under

which a person may, subject to regulatory authority ap-

proval, conduct surface coal mining operations on lands

where [30 U.S.C. 1272(e)] would otherwise prohibit such

operations.” 30 C.F.R. 761.5. The 1999 regulations pro-

vide that, in order to establish “valid existing rights,” a

claimant must first demonstrate that, at the time the

land came under the protection of Section 1272(e), some

legally binding document vested the claimant “with the

right to conduct the type of surface coal mining opera-

tions intended.” 30 C.F.R. 761.5(a). If that initial state-

law-based standard is satisfied, the 1999 regulations

provide that the claimant must also satisfy either the

8

good faith/all permits standard or the needed-for-and-

adjacent-to standard. See 30 C.F.R. 761.5(b).°

The preamble to the 1999 regulations spans 65 pages

in the Federal Register. 64 Fed. Reg. at 70,766-70,830.

The preamble contains an exhaustive review of the

SMCRA and its legislative history, OSM’s previous ef-

forts to define “valid existing rights,” and the case law

arising from those attempts. See zd. at 70,767-70,771.

It also explains the provisions of the new regulations,

discusses how they coincide with or differ from prior

regulations, responds to comments, and explains why

OSM chose the options it did. See id. at 70,771-70,783,

70,787-70,790. The preamble specifically addresses why

OSM rejected the taking and ownership-and-authority

standards. See 7d. at 70,783-70,786. It also contains an

extensive discussion of how the definition of “valid exist-

ing rights” adopted in the 1999 regulations “[c]ompares

with” the use of the words “valid existing rights” “[uJn-

der [o|ther [flederal [s]tatutes.” Jd. at 70,793-70,794;

see Pet. App. 23a-29a (district court’s description of the

preamble).

With respect to the impact of the alternatives it con-

sidered, OSM concluded that, over the 20-year period

from 1995 to 2015, the “good faith/all permits” standard

would result in mining of only 2855 fewer acres than a

“takings” standard and 3000 fewer acres than the “own-

ership and authority” standard. See Pet. App. 25a (cit-

* The 1999 regulations set out a different mechanism for establishing

“valid existing rights” with respect to use or construction of roads. In

that context, a claimant may either: (1) satisfy the test described above;

or (2) establish that a road, right-of-way, or permit to construct a road

already existed at the time the property became covered by 30 U.S.C.

1272(e), and that the claimant had a legal right to use that road or right-

of-way for surface coal mining operations. See 30 C.F.R. 761.5(c).

9

ing 64 Fed. Reg. at 70,776). Against that background,

OSM found only “negligible differences among the alter-

natives in terms of their economic impact.” 64 Fed. Reg.

at 70,776.

4. a. Petitioner filed a complaint and petition for

judicial review under 30 U.S.C. 1276(a)(1), which autho-

rizes review of “[a]ny action of the Secretary [of the In-

terior] to approve or disapprove a State program or to

prepare or promuigate a Federal program pursuant to

[the SMCRA].” That section also provides that “[a]ny

action subject to judicial review under this subsection

shall be affirmed unless the court concludes that such

action is arbitrary, capricious, or otherwise inconsistent

with law.” Ibid.

b. The district court granted summary judgment

in favor of respondents. Pet. App. 17a-36a. The court

quoted the D.C. Circuit’s statement in NWF v. Hodel,

839 F.2d 694, 749 (1988), that “[nJeither the statutory

language nor the legislative history [of the SMCRA]}

elaborate[s] on the meaning of the phrase ‘valid exist-

ing rights.’” Pet. App. 3la. The district court concluded

that the 1999 regulations satisfied the only evident

guideposts of congressional intent applicable at Chevron

step one because they “include|]| a good-faith exception,

encompass[] recognition for state law property rights at

the property right demonstration prong * * *, and

reveal[] concerns over minimizing takings.” /d. at 32a.

The district court concluded at Chevron step two that

OSM had “considered the relevant factors” and “ar-

ticulate[d] a rational explanation for its actions.” Pet.

App. 32a, 34a. The court determined that “(t]he ‘good

faith/all permits’ standard adopted by OSM reasonably

strikes a balance between protecting the environment

and ensuring an adequate supply of coal.” /d. at 33a; see

10

ibid. (noting that OSM had determined “that its final

rule would have no ‘significant economic impact on the

mining industry and the cost of producing or delivering

coal’”) (quoting 64 Fed. Reg. at 70,776). The district

court further noted that “OSM reports, and [petitioner]

does not dispute, that the ‘good faith/all permits’ stan-

dardis * * * consistent with current state regulatory

standards,” and it pointed out that the same standard

had “been implemented in 1980 and 1986 at the direction

of OSM and in the early 1990s at the direction of Con-

gress.” Id. at 33a-34a.

The district court rejected petitioner’s contention

that the 1999 regulations violated either the Just Com-

pensation or Due Process Clause of the Fifth Amend-

ment to the United States Constitution. Pet. App. 34a-

35a. The court noted that this Court’s decision in Hodel

v. Virginia Surface Mining & Reclamation Ass’n, 452

U.S. 264 (1981), “held that the ‘mere enactment’ of [the]

SMCRA [did] not constitute a taking, nor [did] it, ‘on its

face, deprive owners of land within its reach of economi-

cally viable use of their land since [the SMCRA] does

not proscribe nonmining uses of such land.” Pet. App.

34a (quoting Hodel, 452 U.S. at 296 n.37). The district

court held that petitioner “ha[d] not demonstrated that

the new regulation results in an unconstitutional tak-

ing,” both for the reasons identified in Hodel and be-

cause “it is clear that if valid existing rights are denied,

compensation is available under the Tucker Act.” /bid.

5. The court of appeals affirmed in a unanimous

published opinion. Pet. App. la-16a. The court first

determined “that [valid existing rights] is an ambiguous

phrase.” Jd. at 7a-8a. It noted that, in its 1986 decision

in NWF, it “hal[d] * * * determined that the phrase is

subject to multiple and divergent interpretations” and

7

£

ia

-. oe

11

“that the legislative history of the SMCRA does not illu-

minate the meaning of [valid existing rights].” Jd. at 8a

& n.2 (citing NWF, 839 F.2d at 748-751). The court of

appeals stated that “(t]he major source of [valid existing

rights’] ambiguity is the word ‘rights.’” /d. at 8a. It

explained that that word has “multiple and often vague

meanings,” some of which are synonymous with “prop-

erty rights” and others of which are not. /d. at 8a-10a.

The court of appeals also concluded that the term

“valid” was ambiguous as used in this context. Jd. at 9a.

It observed that if “[valid existing rights] operates as a

‘term of art,’ as [petitioner] suggests, it is as a tool by

which Congress delegates policymaking authority

through ambiguity.” Jd. at 10a.

The court of appeals next held that the 1999 regula-

tions’ definition of “valid existing rights” was “a reason-

able interpretation of the statute.” Pet. App. 12a. The

court viewed the statute as a whole as making clear that

“protecting against the harmful effects of surface min-

ing” was “the primary aim of the [SMCRAj},” and it

stated that it was “not surprising that the Secretary has

promulgated an interpretive rule that cuts against the

interests of some miners.” Jd. at 12a-13a. The court of

appeals also concluded that petitioner’s “suggestion that

the SMCRA effected robust protection of miners’ prop-

erty rights is belied by the way Congress used the word

‘property’ in that statute.” /d. at 13a. It noted that

“only one [of the 29 instances in which that term appears

in the SMCRA] refers to protecting the property rights

of subsurface owners of the mineral estate,” and it de-

termined that “several mentions of ‘property’ [in the

Act] run counter to miners’ property rights, in that they

authorize government entry onto mined property to as-

sess and remedy environmental degradation caused by

12

strip mining.” Jbid. The court also stated that peti-

tioner’s accusation of “flip-flopping” by OSM “ignore[d]

the agency’s obligation to ‘consider varying interpreta-

tions and the wisdom of its policy on a continuing basis”

Id. at 13a n.5 (quoting Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837, 863-864 (1984) (Chevron)).

The court of appeals agreed with petitioner that the

“canon of constitutional avoidance trumps Chevron def-

erence.” Pet. App. 14a. The court emphasized, however,

that “we do not abandon Chevron deference at the mere

mention of a possible constitutional problem: the argu-

ment must be serious,” and the court determined that

the constitutional arguments in this case did not satisfy

that standard. /bid. Petitioner had argued “that the

1999 Rule * * * work(s] a taking of subsurface coal in-

terests.” Jd. at 15a. The court of appeals responded

that “[a] taking * * * is only unconstitutional if the

government fails to pay just compensation, and the

Tucker Act provides for such a remedy.” /bid.

The court of appeals emphasized that it did not “say

that the canon of constitutional avoidance can be ignored

with respect to every argument sounding in the Takings

Clause.” Pet. App. 15a. The court noted that this Court

has recognized that, even where just compensation

would be available for individual takings, the doctrine of

constitutional avoidance applies “if a statute creates

‘an identifiable class of cases in which application of

[the] statute will necessarily constitute a taking.’” /d. at

15a-16a (quoting United States v. Riverside Bayview

Homes, 474 U.S. 121, 128 n.5 (1985)). The court of ap-

peals aiso observed that it had previously “refused Chev-

ron deference to an agency interpretation that created

an ‘identifiable class’ of takings victims.” Jd. at 16a (cit-

ing Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441, 1445 (D.C.

13

Cir. 1994)). But the court of appeals concluded that peti-

tioner “ha[d] shown no ‘identifiable class’ of miners

whose taking claims would expose the Treasury to such

liability.” bid. The court noted that petitioner had de-

clined to contend at oral argument “that the government

would be on the hook for a ‘massive and unforseen’ sum”

if the 1999 regulations were upheld, and it stated that

“(t]he record is devoid of evidence it is so.” Jbid. The

court thus viewed petitioner as having made an “implicit

concession that the 1999 Rule will have relatively insig-

nificant takings implications that can be readily ad-

dressed in the Court of Claims,” and it noted that it had

previously concluded that “(t]he avoidance canon is not

applicable when the statute or regulation would effect a

taking, if at all, only in certain circumstances.” Jbid.

(quoting National Mining Ass'n v. Babbitt, 172 F.3d

906, 917 (D.C. Cir. 1999)).

6. Petitioner filed a petition for rehearing en banc.

That petition was denied after no judge requested a vote

on it. Pet. App. 38a.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or any other

court of appeals. The court of appeals merely upheld a

regulatory standard that the Department of the Interior

has employed since 1986, and its decision cannot be ex-

pected to have broader implications. Further review is

not warranted.

1. Petitioner first contends (Pet. 15-25) that the Dis-

trict of Columbia Circuit erred in concluding that the

words “valid existing rights” in Section 1272(e) are am-

biguous under Chevron step one. See Chevron U.S.A.,

14

Inc. v. NRDC, 467 U.S. 837 (1984). That claim does not

merit further review.

a. The premise of petitioner’s argument is that the

court of appeals reached the conclusion that it did solely

because the word “rights” “has multiple entries in the

dictionary.” Pet. 15; see Pet. i. That premise is errone-

ous.

Like the district court before it, see Pet. App. 31a,

the court of appeals explained that it had already con-

cluded—20 years ago—that the entire phrase “valid ex-

isting rights” in 30 U.S.C. 1272(e) “is subject to multiple

and divergent interpretations.” /d. at 8a (citing NWF v.

Hodel, 839 F.2d 694, 748-751 (D.C. Cir. 1988)); id. at 8a

n.2 (same). In NWF, the D.C. Circuit rejected a chal-

lenge to the “continually-created [valid existing rights]”

portion of the 1983 regulations. See 839 F.2d at 748-751;

note 2, supra. The panel in that case observed that

“{nleither the statutory language nor the legislative his-

tory elaborate[s] on the meaning of the phrase ‘valid

existing rights.’” 839 F.2d at 749. The NWF panel con-

cluded that “(t]he statutory language appear[ed] to be

susceptible to either” the interpretation that it applies

exclusively to rights that were “existing as of the date of

[the SMCRA’s] enactment” or that it applies as well to

situations where “a permit ha|d] been validly issued”

before the land came under the protection of 30 U.S.C.

1272(e). 839 F.2d at 750. The panel also noted that the

SMCRA’s legislative history “d[{id] not answer the spe-

cific question before [it],” though it observed that a com-

mittee report indicated that Congress did not intend for

“operating mines” to “be shut down.” /bid. (citing H.R.

Rep. No. 218, 95th Cong, Ist Sess. 94 (1977)).

In this case, the court of appeals could have justified

its conclusion that the phrase “valid existing rights” in

15

Section 1272(e) was ambiguous based solely on that es-

tablished conclusion in NWF’. But the panel went fur-

ther. It explained that the “major source”—not the only

source—of the ambiguity in “valid existing rights” was

Congress’s use of the word “rights.” Pet. App. 8a (em-

phasis added). Petitioner is correct (Pet. 13-14) that the

panel relied in part on dictionary definitions of the word

“rights” in reaching that conclusion. Pet. App. 8a-9a.

But consulting dictionaries is one of the standard tech-

niques of statutory interpretation,‘ and petitioner itself

cited dictionary definitions of “rights” in its brief to the

court of appeals. /d. at 8a (citing Pet. C.A. Br. 34). In

addition, the court of appeals also examined the mean-

ing of “valid,” and concluded that that term too failed to

resolve the ambiguity it had already identified in NWF.

Id. at 9a.° Nor did the court of appeals ignore SMCRA’s

* See, e.g., Cuellarv. United States, 128 S. Ct. 1994, 2000 (2008); Uni-

ted States v. Williams, 128 S. Ct. 1830, 1839 (2008); Begay v. United

States, 128S. Ct. 1581, 1586 (2008); Knight v. Commissioner, 128 S. Ct.

782, 789 (2008); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 1278S. Ct.

2499, 2510 (2007).

® The court of appeals also found it “illuminating” that extensive aca-

demic commentary about the meaning of “valid existing rights” in 30

U.S.C. 1272(e) had “reached no consensus” and been “unable to distil]

a single, clear meaning” of that phrase. Pet. App. 10a n.3. The court

observed that a subject-matter expert in whose views petitioner had

“place[d] great faith”—and who both petitioner and amicus American

Petroleum Institute (API) continue to cite before this Court (see Pet.

16; API Amicus Br. 9, 15, 23)—had acknowledged that Congress had

not “list{ed) what interests it mean[(t] to include within the ‘valid ex-

isting rights’ phrase.” Pet. App. 10a n.3 (quoting Jan G. Laitos & Rich-

ard A. Westfall, Government Interference with Private Interests in

Public Resources, 11 Harv. Envtl. L. Rev. 1, 19 (1987)). Cf. Jan G.

Laitos, The Nature and Consequence of “Valid Existing Rights” Sta-

tus in Public Land Law, 5 J. Min. L. & Pol’y 399, 399-400 (1989-1990)

(observing that use of the term “valid existing rights” exemplifies

16

structure. It simply did not find petitioner’s few struc-

tural arguments persuasive enough to warrant discus-

sion in the context of Chevron step one. See id. at 12a-

13a (addressing statutory context when assessing rea-

sonableness of OSM’s interpretation under Chevron step

two).

Petitioner’s claim that the D.C. Circuit applied a

“novel approach to Chevron” in this case (Pet. 25) under

which “a single word” can render an entire statutory

phrase ambiguous (Pet. 15) is further belied by its sub-

sequent decisions. The D.C. Circuit has continued—

in decisions issued after its decision in this case—to rely

on the very precedents petitioner accuses it of having

abandoned here. Compare Pet. 19 (quoting this Court’s

statement in Brown v. Gardner, 513 U.S. 115, 118

(1994), that “[aJmbiguity is a creature not of definitional

possibilities but of statutory context”), with HolRail,

LLC v. STB, 515 F.3d 1213, 1317 (D.C. Cir. 2008) (“Al-

though the term ‘cross’ may have multiple meanings in

some circumstances, ‘[ajmbiguity is a creature not of

definitional possibilities but of statutory context’” (quot-

ing Brown, 513 U.S. at 118)).

b. Petitioner also fails to demonstrate that the dis-

trict court and the court of appeals erred in concluding

that the phrase “valid existing rights” in Section 1272(e)

is ambiguous with respect to the specific question pre-

sented here. That phrase is undefined in the statute,

and its meaning is not specifically addressed in the

SMCRA’s legislative history. See NWF’, 839 F.2d at

749.

Congress’s “tendency to rely on unclear wording to express a federal

law-maker’s intent,” and stating that “[bjecause the phrase is never

defined, one is never certain what kinds of interests are intended to fall

within its scope”).

17

Petitioner and its amici err in asserting that the 1977

Senate Report indicates that the “fundamental purpose”

of the “valid existing rights” language was “to clarify

that ‘all valid existing property rights must be pre-

served.’” Pet. 9 (quoting S. Rep. No. 128, 95th Cong.,

lst Sess. 56 (1977) (Senate Report)); accord National

Council of Coal Lessors (NCCL) Amicus Br. 4. The sec-

tion of the Senate Report in which the quoted language

appears does not refer to the “valid existing rights” lan-

guage in Section 1272(e). Instead, it is contained in a

section entitled “Protection of Surface Owner Rights.”

Senate Report 56. That section declares Congress’s in-

tent that “disputes about property rights which might

arise” in situations where “the mineral and surface es-

tate [have been] separated” should continue to be gov-

erned by “State laws” and that Congress “has no inten-

tion whatsoever * * * to change such rights.” Jbid.

(emphasis added). When viewed in context, the lan-

guage upon which petitioner and its amici rely clearly

does not address the wholly separate question of under

what circumstances the SMCRA itself bars surface coal

mining operations in situations where such mining would

previously have been allowed under state law.°

Although petitioner is correct that Congress has

used the phrase “valid existing rights” in numerous fed-

®° Amicus NCCL contends (at 13-15) that the approach to “valid

existing rights” in the 1999 regulations displaces state law, and implies

that, in so doing, the rule contradicts congressional intent. That argu-

ment is incorrect as well. The 1999 regulations’ definition of “valid exis-

ting rights” expressly defers to state law on questions relating to the

first part of the analysis, that is, whether “a legally binding conveyance,

lease, deed, contract, or other document vests that person, or a prede-

cessor in interest, with the right to conduct the type of surface coal min-

ing operations intended.” 30 C.F.R. 761.5(a).

18

eral statutes (see Pet. 6-8 & nn.1-16), petitioner errs in

contending that that phrase has any “settled meaning”

(Pet. 20) that applies regardless of the particular statu-

tory context in which it is used or the expert determina-

tions of an agency charged with administering it. So far

as we are aware, Congress has never defined “valid ex-

isting rights” in any of the statutes in which it has used

that phrase. See 64 Fed. Reg. at 70,794. In addition, pe-

titioner cites no judicial decision (and we 212 aware of

none) that holds that “valid existing rights” is a term of

art that always includes the sort of property interests

—coupled with an ability to mine (or engage in other

activity) as a matter of state law—that petitioner con-

tends the phrase “valid existing rights” as used in

30 U.S.C. 1272(e) was intended to protect.’ See General

Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595 n.8

(2004) (cautioning against “[t]he tendency to assume

that a word which appears in two or more legal rules,

and so in connection with more than one purpose, has

and should have precisely the same scope in all of

” The only lower-court decisions that petitioner cites regarding

the meaning of “valid existing rights” are three Ninth Circuit decisions,

one D.C. Circuit decision, a district court decision, and a decision by

the Supreme Court of Alabama; those decisions are cited in a footnote

contained in petitioner’s Statement of the Case. See Pet. 8 n.16. Peti-

tioner does not assert that the D.C. Circuit’s decision in this case con-

flicts with any of those decisions, and none of them interpreted the

words “valid existing rights” in the SMCRA.

Amicus NCCL errs in suggesting (at 7) that this Court’s decision in

Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 316-318 (1930),

supports the view that “valid existing rights” has “a well-established

purpose and meaning.” The phrase “valid existing rights” does not ap-

pear in Wilbur at all, and it was conceded in that case that the particu-

lar claim at issue “was valid and existent when the” relevant statute had

been enacted. /d. at 316.

19

them”) (citation omitted); see also Environmental De-

fense v. Duke Energy Corp., 1278S. Ct. 1423, 1482-1434

(2007) (holding that the Environmental Protection

Agency had not exceeded the scope of its lawful author-

ity in interpreting the same term in a single statute in

different ways)

Petitioner’s invocation of statutory structure (Pet.

23-24) does not warrant a different result. First, peti-

tioner’s argument is premised on a misreading of the

1999 regulations. The 1999 regulations do not “require

miners to obtain [all] permits to qualify for [valid exist-

ing rights] in the first place.” Pet. 24 (first emphasis

added). To the contrary, OSM made clear, as it has

since 1986, that a property owner need only have made

a good-faith effort to obtain the necessary permits at the

time the property became covered by Section 1272(e),

and that that standard does not necessarily require the

claimant even to have submitted all relevant permit ap-

plications. See 64 Fed. Reg. at 70,777 (“We do not inter-

pret the good faith/all permits standard as requiring

submission of applications for all necessary permits”

before the land comes under the protection of Section

1272(e)). Petitioner’s argument also ignores the fact

that the 1999 regulations provide two other methods by

which a claimant may establish “valid existing rights”

—satisfaction of the needed-for-and-adjacent-to stan-

dard or satisfaction of the alternate for roads. See id. at

70,787, 70,790; note 3, supra. Accordingly, the fact. that

Congress “condition[ed other] exemptions * * * onthe

attainment of regulatory permits” (Pet. 24) (emphasis

added), does not demonstraté that Congress intended to

preclude OSM from identifying a good-faith effort to

obtain such permits as one method by which a claimant

may establish “valid existing rights” under 30 U.S.C.

20

1272(e). See 64 Fed. Reg. at 70,778 (stating “that the

statute’s use of different terminology for each of these

exceptions means that Congress probably intended a

somewhat different meaning for the [valid existing

rights] exception under [30 U.S.C. 1272(e)] than for the

exceptions provided under the other statutory provi-

sions cited by the commenters”).

Second, petitioner’s argument is inconsistent with

other structural features of the SMCRA. The overall

purpose of 30 U.S.C. 1272(e) is to protect certain areas

from the impacts of surface coal mining operations. See

Senate Report 55 (stating that Congress included Sec-

tion 1272(e) because it “made a judgment that certain

lands simply should not be subject to new surface coal

mining operations”). But if the phrase “valid existing

rights” applies whenever a person had a property inter-

est in coal in the ground and state law would not have

prohibited the coal from being mined in the absence of

Section 1272(e), as petitioner appears to suggest, then

Section 1272(e) would have virtually no effect. See 64

Fed. Reg. at 70,772, 70,778, 70,784, 70,785, 70,826. In

addition, petitioner’s proposed interpretation of “valid

existing rights” would mean that Section 1272(e) “would

offer no significant protection * * * beyond that inde-

pendently afforded by” 30 U.S.C. 1257(b)(9), which al-

ready requires that permit applicants have a property

right in the coal to be mined. 64 Fed. Reg. at 70,785;

accord 7d. at 70,826 (stating that the interpretation pro-

posed by petitioner “would result in a finding of [valid

existing rights] whenever a person met the permit appli-

cation requirements for property rights,” and thus ren-

der Section 1272(e)’s independent protections “meaning-

less”).

21

2. Petitioner also contends (Pet. 26-33) that the D.C.

Circuit erred in applying Chevron in this case because

“OSM’s statutory construction * * * will trigger tak-

ings claims.” Pet. i. That contention does not merit fur-

ther review.

a. This Court has made clear that “the possibility

that the application of a regulatory program may in

some instances result in the taking of individual pieces

of property” provides “no justification for the use of nar-

rowing constructions to curtail the program if compen-

sation will in any event be available in those cases where

a taking has occurred.” United States v. Riverside Bay-

view Homes, Inc., 474 U.S. 121, 128 (1985) (Riverside

Bayview); see Hodel v. Virginia Surface Mining & Rec-

lamation Ass’n, 452 U.S. 264, 297 n.40 (1981) (noting

that “an alleged taking is not unconstitutional unless

just compensation is unavailable.”). The Court has ex-

plained that, “{u}nder such circumstances, adoption of a

narrowing construction does not constitute avoidance of

a constitutional difficulty, [but merely] frustrates per-

missible applications of a statute or regulation.” River-

side Bayview, 474 US. at 128 (citing Ashwander v. TVA,

297 U.S. 288, 341-356 (1936) (Brandeis, J., concurring));

accord Clark v. Martinez, 543 U.S. 371, 382 (2005) (stat-

ing that the constitutional avoidance canon is “a means

of giving effect to congressional intent, not of subverting

it”).

The Court stated in Riverside Bayview that a nar-

rowing construction of a statute may be appropriate

where there is “an identifiable class of cases” or an

“identifiable set of instances” in which the mere “appli-

cation of a statute [or regulation] will necessarily consti-

22

tute a taking.” 474 U.S. at 128 n.5 (emphasis added).°

In Riverside Bayview, the Court cited as an example the

statute at issue in United States v. Security Industrial

Bank, 459 U.S. 70 (1982), where there was a substantial

argument that the retroactive application of a provision

of the Bankruptcy Code “would in every case constitute

a taking,” and “the solution was to avoid that difficulty

by construing the statute to apply only prospectively.”

Riverside Bayview, 474 U.S. at 128 n.5 (emphasis

added). No such situation is present here. Moreover,

because Security Industrial Bank involved purchase-

money security interests obtained in transactions be-

tween private parties—a setting in which it is exceed-

ingly unlikely that Congress would have intended for the

United States to pay compensation if a taking was found

—the Court in that case appears to “have assumed the

lack of compensatory remedy” under the Tucker Act.

Eastern Enters. v. Apfel, 524 U.S. 498, 521 (1998) (plu-

rality opinion).

The court of appeals correctly held that this case

falls into the general rule of Riverside Bayview rather

than its exception. In the first place, here, unlike in the

Security Industrial Bank example cited in Riverside

Bayview, the court of appeals properly concluded that

“the Tucker Act [would] provide[] * * * a remedy”

in situations where application of the “valid existing

rights” standard established in the 1999 regulations

would result in a Fifth Amendment taking. Pet. App.

15a.° Nor has petitioner in any event demonstrated that

® But see Pet. i (framing inquiry as whether the standard set forth in

the 1999 regulations “will trigger takings claims”) (emphasis added).

* Amicus NCCL asserts (at 16) that there are certain circumstances

in which such a claim would have to be brought in state court rather

than in the Court of Claims under the Tucker Act, 28 U.S.C. 1491(a).

23

application of the 1999 regulations will “necessarily con-

stitute a taking” in any “identifiable class of cases.”

Riverside Bayview, 474 U.S. at 128 n.5 (emphasis

added). As explained earlier, OSM employed the good

faith/all permits standard between August 4, 1980, and

September 14, 1983, and has been employing it continu-

ously since November 20, 1986. See pp. 4-8, supra.

OSM found that the United States and the States that

employ the same standard have never been required to

pay just compensation for a taking of property resulting

from application of the good faith/all permits standard.

See 64 Fed. Reg. at 70,823. The court of appeals also

determined that petitioner had implicitly conceded at

oral argument that the definition of “valid existing

rights” contained in the 1999 regulations “will have rela-

tively insignificant takings implications.” Pet. App. 16a;

see pp. 8-9, supra.

Petitioner repeatedly quotes (Pet. 4, 12, 31) a state-

ment from the preamble to the 1999 regulations that the

definition of “valid existing rights” “has significant

takings implications.” 64 Fed. Reg. at 70,781. Petition-

er fails to mention, however, that the preamble makes

clear that it is using the phrase “significant takings im-

plications as that term is defined by Executive Order

12630,” ibid. (emphasis added), for purposes of under-

taking a “takings implication assessment,” see zbid.; see

Exec. Order 12,630, 3 C.F.R. 554 (1989). OSM per-

formed an assessment under that definition in the pre-

amble to the 1999 regulations, see 64 Fed. Reg. at

70,822-70,827, applying the Attorney General’s Guide-

lines for the Evaluation of Risk and Avoidance of Un-

Regardless of whether that is so, the important point is that neither

petitioner nor its amici deny that some court would always be available

to hear such a circumstance-specific claim.

24

anticipated Takings, td. at 70,827. Petitioner also fails

to note that the preamble states—two sentences after

the “significant takings implications” language quoted

by petitioner—that OSM “anticipate[s] that” the defini-

tion of valid existing rights in the 1999 regulations “will

result in very ferev compensable takings.” Id. at 70,781

(emphasis added); see Riverside Bayview, 474 U.S. at

128 n.5 (framing inquiry as whether application of a stat-

utory or regulatory standard will actually “constitute a

taking” in “an identifiable class of cases”).

Takings claims based on adverse “valid existing

rights” determinations under the standard set forth

in the 1999 regulations might fail for a wide variety of

reasons. Such a claim failed in Stearns Co., v. United

States, 396 F.3d 1354 (Fed. Cir.), cert. denied, 546 U.S.

875 (2005), for example, because the plaintiff had

not sought a compatibility finding under 30 U.S.C.

1272(e)(2), which could have allowed it to mine even ab-

sent a determination of “valid existing rights.” Other

exemptions in Section 1272(e) might similarly allow ac-

cess to coal even absent a determination of “valid exist-

ing rights.” See 64 Fed. Reg. at 70,824. A takings claim

based on an adverse “valid existing rights” determina-

tion cou!d also fail if the plaintiff lacked a compensable

property interest in the coal or was able to make alter-

nate uses of the property, see id. at 70,823-70,825, or if

the restriction on mining did not have the sort of eco-

nomic impact that would result in a taking, see Keystone

Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470

(1987). Particularly given the dearth of decisions re-

quiring the government to pay compensation based on

adverse “valid existing rights” determinations in all the

years that standard has been in effect, the court of ap-

peals correctly declined to frustrate permissible applica-

25

tions of the 1999 veleiations based on the speculative

possibility that takings might arise in the future.

Nor is petitioner correct that the D.C. Circuit has

rendered the exception noted in Riverside Bayfield “a

dead letter.” Pet. 31. As the court of appeals noted in

its decision (see Pet. App. 16a), the D.C. Circuit applied

that exception in Bell Atlantic Telephone Cos. v. FCC,

24 F.3d 1441, 1445 (1994), and its decision in this case

announced no plans to change course in the future. In-

stead, the court of appeals simply determined that this

case was governed by the general rule that “the possibil-

ity that the application of a regulatory program may in

some instances result in the taking of individual pieces

of property is no justification for the use of narrowing

constructions.” Riverside Bayview, 474 U.S. at 128.

That case-specific determination was entirely correct

and does not merit further review.

b. Although petitioner suggests that the lower

courts “({ajre [cJonfused [a]bout” (Pet. 27) the proper

application of the exception to the general rule stated in

Riverside Bayview, it pointedly does not assert that the

court of appeals’ decision in this case conflicts with any

of the decisions cited on pages 27 to 30 of the petition for

a writ of certiorari. To the contrary, petitioner acknowl-

edges (Pet. 27-29) that the Fifth, Eighth, and Federal

Circuit decisions that it cites all rejected arguments that

the prospect of takings claims required the courts to

disregard standard Chevron principles and apply a nar-

rowing construction.

Petitioner is therefore left to suggest (Pet. 29-30)

that the D.C. Circuit’s decision in this case may be in

tension with that court’s own previous decisions. But

this Court has made clear that it is the province of each

court of appeals to ensure consistency with, and resolve

26

conflicts among, its own decisions. See Wisniewski

v. United States, 353 U.S. 901, 902 (1957) (per curiam).

In addition, the unanimous panel opinion in this case

discussed the decision that petitioner describes (Pet.

30) as having given “fullest exposition of the Riverside

Bayview Homes rule.” See Pet. App. 16a (discussing

Bell Atl. Tel. Cos., supra). It is also telling that, not-

withstanding petitioner’s contention that the panel’s

decision in this case constitutes “a sharp—but unex-

plained—break with its own precedent” (Pet. 31), no

member of the D.C. Circuit voted to grant petitioner’s

petition for rehearing en banc.

3. Petitioner and its amici also fail to demonstrate

that the D.C. Circuit’s decision in this case will have

“grave” or “far-reaching implications” (Pet. 34) either in

the particular context of the SMCRA or more generally.

As for the former: The Department of the Interior has

applied the good faith/all permits standard for 25 of the

31 years since the SMCRA was enacted and has done so

continuously since 1986. See pp. 4-8, supra. In addition,

the preamble to the 1999 regulations explains that

“(t]wenty of the 24 States with approved regulatory pro-

grams * * * already rely upon a good faith/all permits

or all permits standard for” determining the existence

of “valid existing rights.” 64 Fed. Reg. at 70,767. Ac-

cordingly, to the extent that the words “valid existing

rights” in Section 1272(e) have any “settled meaning”

upon which “property owners [could] have relied,” Pet.

20, the good faith/all permits standard would be that

meaning.

Nor have petitioner or its amici demonstrated that

the definition of “valid existing rights” in the 1999 regu-

lations will have significant consequences with respect

to other statutes. This Court has rejected the proposi-

27

tion that a single agency must always interpret the same

term even within a single statute in precisely the same

manner. See Environmental Defense, 127 S. Ct. at

1432-1434. It follows a fortiori that there is no require-

ment that the words “valid existing rights” must be in-

terpreted in precisely the same way in “well over 100

federal statutes and proclamations” (Pet. 6) that were

enacted and made over the course of a century, particu-

larly in light of the fact that Congress does not appear

to have defined that phrase in any of them. See 64 Fed.

Reg. at 70,794 (stating that OSM “found no definitions

of [valid existing rights] in other Federal statutes”).

There is no indication that the Department of the

Interior intends to apply the definition of “valid existing

rights” that the 1999 regulations adopt with respect to

the SMCRA to other statutes it administers.’® To the

10 Amicus API expresses concern (at 8-10, 13-20) that the 1999 regu-

lations could establish a precedent with respect to the oil and gas indus-

try. API did not comment on the 1999 regulations while OSM was con-

sidering the matter, nor did it raise its concerns before the district

court or the court of appeals. In addition, API’s assertion (at 23) that

a 1998 opinion by the Solicitor of the Interior regarding the meaning of

“valid existing rights” in the Wilderness Act, 16 U.S.C. 1131 et seq.,

“diverges 180 degrees” from the approach taken in the regulation cur-

rently before this Court was not presented either to the agency or the

lower courts. And, at any rate, the fact that Interior interpreted a simi-

lar phrase in a different statute in a different manner simply under-

scores, as Interior observed in the preamble to the 1999 regulations,

that SMCRA “is not analogous” to other statutes. 64 Fed. Reg. at

70,794.

28

contrary, the preamble to the 1999 regulations concludes

that the interpretations of “valid existing rights” under

other federal statutes did not “provide[] useful guid-

ance” in this context because “[v]alid existing rights un-

der [30 U.S.C. 1272(e)] is not analogous to [voluntary

wee ee a eer

existing rights] under other Federal statutes.” 64 Fed.

j Reg. at 70,794.

CONCLUSION

: The petition for a writ of certiorari should be denied.

Respectfully submitted.

4

: DARYL JQSEFFER®

, Acting Solicitor General

.

RONALD J. TENPAS

. Assistant Attorney General

: KATHRYN E. KOVACS

Attorney

/

: OCTOBER 2008

, .

: ;

3

* The Solicitor General is recused from this case.