# Amicus Curiae Brief — Pittston Co. v. Babbitt

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1513%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1134

## Text

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]").

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1513%3A2. Public record. Not legal advice.