Amicus Curiae Brief — Pittston Co. v. Babbitt

No. 95-1089

In the

Supreme Court of the United States

October Term, 1995

THE PITTSTON COMPANY and

CLINCHFIELD COAL COMPANY,

Petitioners,

Vv.

BRUCE BABBITT, Secretary, United States

Department of the Interior,

COMMONWEALTH OF VIRGINIA, Department

of Mines, Minerals & Energy, Division

of Mined Land Reclamation,

Respondents.

On Petition For a Writ of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

BRIEF OF THE NATIONAL MINING ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Harold P. Quinn, Jr.

National Mining Association

1130 17th St., N.W.

Washin , D.C. 20036

(202) 463-2652

Counsel for Amicus Curiae

Page

, Ff Re ESSE a Ea i hae Sara ii

Ee a ee a l

Sy Gr FOIE. fb din cs whe Hr et reer eees 4

ee ee oe ee ee 5

A. Provisions In Federal Statutes Which Purport To

Restrict The Availability Of Judicial Review

Should Be Narrowly Construed ........... 5

B. Assuming Section 1276(a) Limits Review Of

Any Action By The Secretary Promulgating

National Rules To The District Court For The

District Of Columbia Circuit, It Does Not Divest

Other Federal Courts Of Jurisdiction To Hear

Cases That Do Not Challenge The Facial

Validity Of A National Rule ............ 11

Cases Page

. Adamo Wrecking Co. v. United States, |

434 U.S. 278 COM os vic Sans 7, 14, 15 |

Chrysler Corp., v. E.P.A., 600 F.2d 904

(DG. Cle. IF weecnce eee eet 13, 14

Coteau Properties Co. v. Department of the

Interior, 53 F.3d 1466 (8th Cir. 1995) .... 4, 15

Harrison v. PPG Industries, Inc., 446 U.S. 592

(ISG . sc 6 vs ak cee see 16

Holmes Limestone Co. v. Andrus, 655 F.2d 732

(6th Cir. 1981), cert. denied, 456

U.3. 3 (EG). «= 45 abe wees seen 2-4, 11

In re Haas, 48 F.3d 1153 (11th Cir. 1995) ....... 10

Lockerty v. Phillips, 319 U.S. 182 (1943) ......... 6

Reiche v. Smythe, 80 U.S. 162 (1872) .......... 12

Russello v. United States, 464 U.S. 16 (1983) ...... 10

Save Our Cumberland Mountains, Inc. v. Clark,

725 F.28 1422 (BC. Cir. TR cde wcccen 10

Ke

United States v. Lamere, 980 F.2d 506

i Cn hes bay eos Nk ae Oe 0 6 0.4, 10

Virginia ex rel. Virginia Dep’t of Conservation &

Economic Dev. v. Watt, 741 F.2d 37 (4th Cir.),

cert. granted, 469 U.S. 979 (1984), cert.

dismissed, 469 U.S. 1198 (1985) ....... 3, 11

Watt v. Holmes Limestone Co., cert. denied,

OU, 6 oo bo 6s 0 66 0:20 2-4, 11

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

Statutes and Regulations

Surface Mining Control and Reclamation Act

CE ee eee oe |

30 U.S.C. §§ 1251, 1265, 1266, and 1273 . 1, 12

CT. kc 6 cc eee eee esees M4

EE. osc v cece eseencéen 9

ET.) gone ce peee se 4 12

30 U.S.C. § 1270(c) and (f) .......... 9, 10

ER 12

ER gO passim

Clean Air Amendments of 1970, 42 U.S.C.

eed Ba aah ag dw be 6 0 68 8

Emergency Price Control Act of 1947, 50 U.S.C.

SAE EE Ens ok EEA 6

iv

Noise Control Act of 1972, 42 U.S.C. § 4915(a) .. 8, 13

Resource Conservation and Recovery Act, 42 U.S.C.

SGD S's co Scares Fekete teen es 7

Eee) PACT PEPE RE RES OU EE oe 6 |

Miscellaneous

2A Singer, Sutherland Statutes and Statutory

Construction §47.16 (Sthed. 1991) ........ 12

i rr rae 6

Sa, SE SE ED GD o's So es ee ee 1

BRIEF OF THE NATIONAL MINING ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE'

Amicus, National Mining Association ("NMA"), is a

trade association whose 365 members include mining

companies, mining equipment manufacturers and suppliers,

and related businesses that serve the mining industry.

NMA’s central purpose is to represent the interests of its

members in important public policy issues affecting the

development and use of mineral resources.

NMA’s coal mining members produce most of the

nation’s coal. As such, Amicus has a special interest in the

interpretation of federal laws which regulate the mining of

coal, and in assuring that section 526(a)(1) of the Surface

Mining Control and Reclamation Act (*"SMCRA” or "Surface

Mine Act"), 30 U.S.C. § 1276(a)(1),? is correctly

interpreted to ensure that its members are not wrongfully

' Pursuant to Supreme Court Rule 37.2, Amicus has filed with the

Court documents reflecting that the counsel for all parties to this

proceeding have consented to the filing of this Brief.

2 Section 1276(a)(1) provides in pertinent part:

Any action by the Secretary promulgating national rules or

regulations including standards pursuant to sections 501, 515,

516, and 523 [30 U.S.C. §§ 1251, 1265, 1266, and 1273] shall

be subject to judicial review in the United States District Court

for the District of Columbia Circuit. Any other action

constituting rulemaking by the Secretary shall be subject to

judicial review only by the United States District Court for the

District in which the surface coal mining operation is located.

precluded or constrained from obtaining judicial relief in a

convenient forum. Petitioners, The Pittston Company and its

subsidiary Clinchfield Coal Company (together “Pittston”),

are not members of NMA. However, interpretation of the

judicial review provisions enumerated in section 1276(a)(1),

has been the source of enduring dispute and uncertainty, and

the issue presented in Petitioners’ Petition for a Writ of

Certiorari ("Petition") is significant to the coal industry.

This Court was first asked to review the subject

matter jurisdiction issue presented in the Petition fourteen

years ago. Watt v. Holmes Limestone Co., cert. denied, 456

U.S. 995 (1982).’ Over the objection of two justices the

Court declined to accept certiorari. Justice White, writing

for the dissenters, correctly predicted that failure to address

the issue could result in “substantial disruption both to the

coal mining industry and to the agencies charged with

administering the Surface Mining Act." Jd. at 997.

There was no conflict among the circuits at the time

this Court declined review of Holmes Limestone. This is no

> In Holmes Limestone, the Sixth Circuit held that section

1276(a)(1) authorized concurrent jurisdiction in the federal courts to hear

challenges to national rules promulgated by the Secretary of the Interior,

rejecting the Secretary's assertion that affected parties were required to

bring such challenges exclusively in the United States District Court for

the District of Columbia. Holmes Limestone Co. v. Andrus, 655 F.2d

732, 733 (6th Cir. 1981).

longer the situation.‘ Although this Court did grant

certiorari in a subsequent case interpreting section 1276(a)(1)

in a manner conflicting with Holmes Limestone, that case

settled, and certiorari was dismissed. See Virginia ex rel.

Virginia Dep't of Conservation & Economic Dev. v. Watt,

741 F.2d 37 (4th Cir.), cert. granted, 469 U.S. 979 (1984),

cert. dismissed, 469 U.S. 1198 (1985).

The disparate impact arising from the conflicting

interpretations the circuits have given section 1276(a)(1) is

substantial, and the prospect of unnecessary threshold

litigation over the question of which is the appropriate court

persists. For example, an operator mining coal in Ohio or

Kentucky may file a direct facial challenge to a rule

promulgated by the Secretary of the Interior in local federal

district court. In contrast, as demonstrated by the case now

before the Court, an operator in neighboring Virginia or

West Virginia may stipulate that the facial validity of a rule

is not being contested, yet cannot establish jurisdiction in

local federal district court to adjudicate whether the

application of the rule violates the operator’s due process

rights.

Importantly, even if the Court should reject the

interpretation of section 1276(a){1) set forth in Holmes

* The Petition sets forth the status of the various circuit courts’

interpretation of section 1276(a)(1). Petition, 8-9.

Limestone, the factual situation presented in the Petition

requires the Court to decide whether the jurisdiction limiting

effect of section 1276(a)(1) extends to procedural due process

challenges, or other requests for judicial review in which the

facial validity of a national rule is not under attack.’

Granting certiorari in this case would promote certainty and

uniformity in the jurisdictional power of the federal courts.

SUMMARY OF ARGUMENT

Congress may invest a particular federal court with

exclusive jurisdiction to hear challenges to agency action, but

statutory provisions which purport to restrict the availability

of judicial review should be read narrowly, not broadly.

Congress has demonstrated in numerous statutes a sensitivity

to the need to speak clearly when curtailing the venue

normally available to a litigant. The absence of any words

in section 1276(a)(1) of the Surface Mine Act indicating an

intent to restrict venue where a federal court is asked to

review actions by the Secretary of Interior promulgating

national rules is especially significant, because words

demonstrating a clear intent to provide for exclusive

jurisdiction are used elsewhere in the Act, including section

1276(a)(1) itself.

* Jurisdictional confusion under section 1276(a)(1) persists even

where the issue is one of application of a rule versus the validity of a

tule. See Coteau Properties Co. v. Department of the Interior, 53 F.3d

1466, 1471 n.6 (8th Cir. 1995).

em

Even if section 1276(a)(1) may be read to vest

exclusive jurisdiction in the District Court for the District of

Columbia Circuit to hear challenges to national rules

promulgated by the Secretary, the language of section

1276(a)(1) and due process concerns support the conclusion

that other federal courts retain jurisdiction to adjudicate cases

in which the facial validity of a rule is not under attack.

ARGUMENT

A. Provisions In Federal Statutes Which Purport

To Restrict The Availability Of Judicial

Review Should Be Narrowly Construed.

30 U.S.C. § 1276(a)(1) states, in pertinent part, that

"[aJny 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.” Petitioner has set forth the relevant legislative

history of the Surface Mine Act which bears on why the

absence of any word of limitation such as “only” or

“exclusive” is significant. Petition, 12-13. Amicus will not

revisit the legislative history of the Act. However, the

general principle that access to judicial review should not be

restricted absent a clear Congressional directive merits

emphasis.

The Congressional power to ordain and establish

inferior courts “includes the power of investing them with

jurisdiction either limited, concurrent, or exclusive and of

withholding jurisdiction from them in the exact degrees and

character which to Congress may seem proper for the public

good." Lockerty v. Phillips, 319 U.S. 182, 187 (1943)

(quotations omitted). Indeed, the Administrative Conference

of the United States, which was established by the

Legislature to study and make recommendations concerning

the adequacy and fairness of administrative procedure,* has

recognized the principle that jurisdictional provisions “should

draw bright lines to minimize the waste and expense of

litigation over whether a case has been brought in the right

court.” 41 Fed. Reg. 56767 (1976).

Congress has demonstrated that it knows how to

restrict venue for challenging the validity of a regulation.

For instance, the Emergency Price Control Act of 1942’

¢ See 5 U.S.C. § 574(1).

7 50 U.S.C. § 204(d), in pertinent part, provided:

The Emergency Court of Appeals, and the Supreme Court ...

shall have exclusive jurisdiction to determine the validity of any

regulation or order issued under section 2 .... Except as

provided in this section, no court, Federal, State, or Territorial,

shall have jurisdiction or power to consider the validity of any

such regulation, order, or price schedule ....

Lockerty, 319 U.S. at 186-87 (emphasis added).

vested in the Emergency Court of Appeals and this Court

exclusive jurisdiction to pass on the validity of commodity

price control regulations promulgated by the Price

Administrator. Thirty years later in conjunction with

construing the breadth of judicial review provisions in the

Clean Air Act, Chief Justice (then Associate Justice)

Rehnquist noted that “[t]he broad language of [the

Emergency Price Control Act] gave clear evidence of

congressional intent that any actions taken by the Price

Administrator under the purported authority of the designated

sections of the Act should be challenged only in the

Emergency Court of Appeals." Adamo Wrecking Co. v.

United States, 434 U.S. 275, 279 (1978) (emphasis added).

In a number of environmental protection statutes

Congress has employed plain language evidencing its intent

to confer to a single tribunal exclusive venue to review

challenges to the validity of agency regulations, including

regulations establishing national performance standards.

Thus, under Section 7006(a)(1) of the Resource Conservation

and Recovery Act -- the 1976 statute regulating the storage,

treatment and disposal of hazardous waste -- a petition for

review of the EPA’s action in promulgating “any regulation,

or requirement under this chapter ... may be filed only in the

United States Court of Appeals for the District of Columbia

Circuit...." 42 U.S.C. § 6976(a)(1) (emphasis added).

Section 307(b) of the Clean Air Amendments of 1970

provides that a petition for review, of the Administrator’s

action in promulgating certain national emissions standards

"may be filed only in the United States Court of Appeals for

the District of Columbia." 42 U.S.C. § 7607(b)(1)

(emphasis added). The very next sentence provides that a

petition for review of the Administrator’s action in approving

or promulgating any state implementation plan “may be filed

only in the United States Court of Appeals for the

appropriate circuit.” Jd. (emphasis added). Similarly,

Section 16(a) of the Noise Control Act of 1972 also

contains a clear limitation on the venue for reviewing certain

agency actions. It provides that a petition for review of the

Administrator’s action in promulgating certain national

emission standards “may be filed only in the United States

Court of Appeals for the District of Columbia Circuit.” 42

U.S.C. § 4915(a) (emphasis added).

As these environmental statutes demonstrate, section

1276(a)(1) of the Surface Mining Act of 1977 was not

drafted in a vacuum. Rather, this provision was enacted

against the backdrop of a series of environmental protection

statutes which used consistent and clear exclusivity language.

As these statutes confirm, Congress was accustomed to

employing plain exclusivity language when it intended to

restrict venue to review agency action.

Numerous provisions in the Surface Mining Act

demonstrate that Congress was attentive to the need to draw

Clear jurisdictional lines. For example, in section 1253(a)

Congress expressly conferred exclusive jurisdiction over the

regulation of surface coal mining and reclamation operations

to states promulgating a state regulatory program approved

by the Department of the Interior. See also 30 U.S.C. §

1254(a) (vesting the Secretary with exclusive jurisdiction

where a federal plan is promulgated). Sections 1270(c) and

(f) provide that challenges brought by citizens to compel

compliance with the Surface Mining Act or for damages may

be brought “only in the judicial district in which the surface

coal mining operation complained of is located." (emphasis

added).

Thus, it is significant that the relevant sentence in

section 1276(a)(1) which provides that “[aJny action by the

Secretary promulgating national rules ... shall be subject to

judicial review in the United States District Court for the

District of Columbia Circuit" is immediately followed by a

sentence which states that any other action constituting

rulemaking by the Secretary shall be subject to judicial

review “only by the United States District Court for the

District in which the surface mining operation is located."

(emphasis added). Where specific language is included in

one section of a statute but omitted in another related section

of the same statute, it is generally presumed that disparate

inclusion and exclusion was done intentionally and

10

purposefully. Russello v. United States, 464 U.S. 16, 23

(1983). Moreover, as this Court noted in Russello, where

Congress includes limiting language in an earlier version of

a bill but deletes it prior to enactment -- as happened with

section 1276(a)(1)* — "it may be presumed that the limitation

was not intended.” Jd. at 23-24. See also Save Our

Cumberland Mountains, Inc. v. Clark, 725 F.2d 1422, 1429

(D.C. Cir. 1984) (construing the scope of venue restrictions

for citizens’ suits authorized under section 1270(c) of the

Surface Mining Act) ("Although there is no explanation for

the adoption of the broader provision, we may not assume

that Congress took this action ’for no reason at all’").

The rule that words employed in a statute should not

be discarded as being mere surplusage or being meaningless

applies with particular force where such terms are included

in some sections and excluded in other sections of the same

act. United States v. Lamere, 980 F.2d 506, 513 (8th Cir.

1992). Where Congress knows how to say something but

chooses not to, its silence is controlling. In re Haas, 48

F.3d 1153 (11th Cir. 1995) (compiling cases).

The absence of plain language in section 1276(a)(1)

restricting jurisdiction to the District Court for the District of

Columbia, coupled with a legislative history which does not

* The legislative history of section 1276(a)(1) is summarized in the

Petition, 12-13.

11

reveal clear Congressional intent to restrict jurisdiction,

requires a finding of concurrent jurisdiction. Accordingly,

this Court should affirm the interpretation of section

1276(a)(1) set forth in Holmes Limestone, and reject

limitations on judicial review which other circuits have read

into section 1276(a)(1).

B. Assuming Section 1276(a)(1) Limits Review

Of Any Action By The _ Secretary

Promulgating National Rules To The District

Of Columbia, It Does Not Divest Other

Federal Courts Of Jurisdiction To Hear Cases

That Do Not Challenge The Facial Validity Of

A National Rule.

Pittston has not challenged the facial validity of any

rule promulgated by the Secretary. Petition, 15. Even if

Congress intended that challenges to the Secretary’s rules be

brought only in the United States District Court for the

District Of Columbia, it does not follow that the preclusive

effect of section 1276(a)(1) is so complete that any challenge

to administrative action taken in accordance with the

regulations constitutes an attack on the regulations which can

be heard only in that forum. See Virginia ex rel., 741 F. 2d

at 40. '

Section 1276(a)(1) provides, in pertinent part, that

any action by the Secretary “promulgating national rules or

12

regulations including standards pursuant to sections 1251,

1265, 1266, and 1273 shall be subject to judicial review in

the United States District Court for the District of Columbia

Circuit." Each of these enumerated secticus pertains to

national performance standards.’ No enumerated section

pertains to enforcement provisions (section 1271), or rules

for permit approval or denial (section 1260). Since the

enumerated sections focus on performance standards, rules

of statutory construction caution against an expansive reading

of section 1276(a)(1). “[W]here it clearly appears that the

lawmakers were thinking of a particular class of ... objects

their words of a general description may not have been

intended to embrace any other than those within the class...."

Reiche v. Smythe, 80 U.S. 162 (1872). See generally, 2A

Singer, Sutherland Statutes and Statutory Construction §

47.16 (Sth ed. 1991).

% Section 1251 pertains to “Environmental Protection Standards”

during the interim regulatory program. Section 1265 addresses

"Environmental Protection Performance Standards” during the permanent

regulatory program. Section 1266, “Surface Effect of Underground Coal

Mining Operations", sets forth the special environmental performance

standards applicable to underground coal mining. Section 1273 pertains

to "Federal Lands’, and sets forth the requirements for implementing

13

Although the referenced sections may not on their

face limit the categories of national rules subject to review in

the United States District Court for the District of Columbia

Circuit, they are relevant when considering the scope of any

preclusive effect to be given to section 1276(a)(1).

Assuming arguendo that Congress intended that judicial

review of actions by the Secretary promulgating national

rules be limited to the United States District Court for the

District of Columbia, the enumerated sections show that the

legislative concern was to maintain a forum for contesting

national environmental performance standards. These

enumerated sections provide no support for reading section

1276(a)(1) in a manner that divests all other federal courts of

jurisdiction to hear a case which does not contest the validity

of a national rule, even if the outcome might preclude

application of the rule in a particular case.

Case law also supports a narrow construction of the

exclusive effect to be given to a provision which purports to

limit the availability of judicial review. In Chrysler Corp.,

v. E.P.A., 600 F.2d 904 (D.C. Cir. 1979), the District of

Columbia Circuit was required to consider the scope of

section 16(a) in the Noise Control Act of 1972, 42 U.S.C. §

4915(a), which designated the United States Court of Appeals

for the District of Columbia Circuit as the exclusive venue

for hearing certain challenges. The Court held that it lacked

jurisdiction to review the facial validity of enforcement

regulations promulgated pursuant to the Act because the

4

enforcement regulations did not rest on any of the sections

designated for exclusive review by the Court. The Court

deemed the legislative history of the parallel provisions of the

Clean Air Amendments of 1970 instructive, noting that the

Congressional purpose for creating a single channel for

questioning the validity of regulations was “much more easily

fitted to standards and testing [procedures necessary to assure

compliance with such standards] than to an enforcement

scheme." Chrysler, 600 F.2d at 912. See also Adamo, 434

U.S. at 284.

Restricting the scope of any preclusive effect which

section 1276(a)(1) may impose on obtaining judicial review

also ameliorates due process concerns. In his dissent in

Yakus v. United States'®, Justice Rutledge noted the due

process concerns raised by legislation which imposes severe

limits on judicial review of regulatory action. His concerns

underlie the “nagging ... substantial due process question"

identified in Chrysler, 600 F.2d at 913, and presented by

Petitioners’ situation. Faced with a permit block, a mining

company is confronted with an unpalatable choice -- risk

© Justice Rutledge indicated that the Emergency Control Act:

provided a short cut proceeding trimmed almost to the bone of

due process, even for wholly civil purposes, ... pared down

even further by a short statute of limitations.

321 U.S. 414, 474 (1944) (J. Rutledge, dissenting).

15

substantial impairment of its business'' or undertake and

complete reclamation work purportedly prompted by third-

party misconduct and pay the government an amount equal

to outstanding fines and interest purportedly owed by third-

party operators, without being afforded an opportunity to test

the bona fides of the underlying violations, fines and interest

calculations.

Where the question presented for adjudication goes to

constitutional issues of the adequacy of notice and hearing,

and where the court is not being asked to rule on the merits

of any national rule, it is error for the court to conclude that

section 1276(a)(1) divests it of jurisdiction to hear the case.

In the absence of clear language which requires that section

1276(a)(1) be given such broad preclusive effect, Petitioners

can establish jurisdiction to adjudicate their due process

rights in a local forum. It is unnecessary to foreclose

Petitioners’ right to raise a due process challenge in this case

because section 1276(a)(1) does not require such a result. '?

” Like Petitioners, most coal operators are constantly in the

process of renewing or revising their permits or seeking new permits for

additional operation. See Coteau, 53 F.3d at 1489. Delay or denial of

these permits could cause serious difficulties in meeting contractual

obligations, and the consequences are often irreparable. Id.

12 Adamo, 434 U.S. at 290 (J. Stewart, J. Brennan and J.

Blackmun dissenting) ("Because the petitioner has not raised any

constitutional challenge in this case, there is no occasion to consider what

(continued...)

16

CONCLUSION

For the foregoing reasons, a writ of certiorari should

be granted and the decision below should be reversed and

remanded for further proceedings.

Respectfully submitted,

Harold P. Quinn, Jr.

National Mining Association

1130 17th St., N.W.

Washington, D.C. 20036

(202) 463-2652

Counsel for Amicus Curiae

"0... continued)

limits, if any, the Due Process Clause of the Fifth Amendment imposes

on the power of Congress to qualify or foreclose judicial review of

agency action"); Harrison v. PPG Industries, Inc., 446 U.S. 592, 594

(1980) (J. Powell, concurring) ("I continue to have reservations about the

constitutionality of the notice and review preclusion provisions of [the

Clean Air Act]").