Opposition Brief — Save Our Cumberland Mountains, Inc. v. Babbitt

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Y 2-84 a

No. 92-845 \ 4AN c9 3093

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IN THE i pe

Supreme Court of the United States

OCTOBER TERM, 1992

SAVE OUR CUMBERLAND MOUNTAINS, INC.,

Petitioner,

+

MANUEL LUJAN, Secretary,

Tar " , _—ra . mn <r 4 te : j

UNITED STATES DEPARTMENT OF INTERIOR, et al.

and

>

NATIONAL COAL ASSOCIATION and

AMERICAN MINING CONGRESS,

Re sponde nts.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF RESPONDENTS

NATIONAL COAL ASSOCIATION AND

AMERICAN MINING CONGRESS IN OPPOSITION

Of Counsel. JOIN A, MACLEOD *

WILLIAM E. HYNAN THOMAS C. MEAN

NATIONAL COAL ASSOCIATION J. MICHABL KLIsi

1130 17th Street, N.W CROWELL & MORING

Washington, D.C. 20036 1001 Pennsylvania Avenue, N.W

Washington, D.C. 20004

202) 624-2500

-*

EDWARD M. GREEN

STUART A. SANDERSON

AMERICAN MINING CONGRESS

Attorneus for Respondents

Tot yol C } eenpiatinn

1920 N Street, N.W. eraerenen Lee Avsoctation

Washington, D.C. 20036 and American Mining Congress

January 15, 1993 * Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

pe Be BP iy y | yA ii

COUNTERSTATEMENT OF THE CASE ..................... 1

REASONS FOR DENYING THE WRIT ........................ 5

THIS CASE IS NOT WORTHY OF SUPREME

COURT REVIEW ................... ee eee een Sey | acts 6

A. The Decision Below Does Not Preclude Pattern

BI Me I sais tcssccciconocacanseccantsscedsansousncs is 6

B. Petitioner’s Speculation About Duplicative Liti-

gation Under Environmental Statutes Is Un-

founded And In Any Event Cannot Supersede

The Plain Language Of SMCRA § 520(c) (1).. 12

C. Petitioner’s Policy Argument Is Factually Mis-

leading And Legally Irrelevant ................ 15

CONCLUSION ..... ae 18

ii

TABLE OF AUTHORITIES |

CASES Page

CBS, Inc. v. FCC, 458 U.S. 867 (1981) ...........0000000.. 17

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 887 (1984) .......0...00000.. rarer 15, 18

Council of and for the Blind of Delacvare County

Valley, Inc. v. Regan, 709 F.2d 1521 (D.C. Cir.

1088) (ote QONNEP oevccscenccstneauaane 14

Heckler v. Chaney, 470 U.S. 821 (1985) ............. 3,10

Lujan v. National Wildlife Fed’n, 110 S. Ct. 8177

C2GDD) onc ccncesckssiisscoccicscasnansunn eee 11, 12, 13

National Black Police Ass’n v. Velde, 712 F.2d 569

CDG. Cha, TBD vaececcncctaicicacsscipesaaiee 8

National Black Police Ass’n v. ‘Velde, 681 F.2d 784

(D.C. Cir. 1980), vacated and remanded, 458

UB. G62 CHORD nniccc.c:ccccccuseeeees 9

National Wildlife Fed’n v. Hodel, 661 F. Supp. 473

(B.D. Ky. TORE .x..ceccccccneueeeeeee 10

New Mexico ex rel. Energy and Minerals Dep’t v.

U.S. Dep’t of Interior, 820 F.2d 441 (D.C. Cir.

DOG Dc scsecssscissucocecsincnsanmuens ean tae eee 9

Oklahoma Wildlife Fed’n v. Hodel, 642 F. Supp.

668 (N.D. Ghia. SOG ...6e een 10

Rubin v. United States, 449 U.S. 424 (1981) ........ 8

Save Our Cumberland Mountains, Inc. v. Clark,

725 F.2d 1422 (D.C. Cir.), reh’g granted, opinion

vacates (1906) .........2.2) ee 9

Save Our Cumberland Mountains, Inc. v. Clark,

725 F.2d 1434 (D.C. Cir.), reh’g granted, opinion

waceeed CIGBE) -.cccccnncoee ee eee 9

Save Our Cumberland Mountains, Inc. v. Lujan,

968 F.2d 1541 (D.C. Cir. 1992) ...............00 passim

Save Our Cumberland Mountains, Inc.~v. Watt,

550 F. Supp. 979 (D.D.C. 1982) ...........000200000..... 4,10

Tennessee Valley Authority v. Hill, 487 U.S. 153

CATS) on oscnecissscscnnceserseeeaeeeen ee 17

United States v. FCC, 652 F.2d 72 (D.C. Cir.

|) EE seers tert RA Maa Rms 9

Women’s Equity Action League v. Cavazos, 906

F.2d 7428 (D.C. Cin. SORGP 5.ccecueneoseee 3, 12,14

—

ili

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTES Page

15 U.S.C. § 2619(a) (1988) 11

28 U.S.C. § 1891 (1988) 16, 17

Se Uae © Leet ChOOe) ............................ Pate 13

80 U.S.C. § 1270(a) (1988).............. 6

80 U.S.C. § 1270(a) (2) (1988) 10, 12

30 U.S.C. § 1270(c) (1) (1988) . . passim

30 U.S.C. § 1276 (a) (1) (1988) _ 10

83 U.S.C. § 1865 (1988) . Seis 7

42 U.S.C. § 6972(a) (1988) 11

42 U.S.C. § 7604 (1988) . - 7

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

Tit. XXV, 106 Stat. 2776 (1992) eee. 16

ADMINISTRATIVE MATERIALS

57 Fed. Reg. 47431 (1992) 3

56 Fed. Reg. 48924 (1991) 3

56 Fed. Reg. 45780 (1991) 3

54 Fed. Reg. 18438 (1989) 8

54 Fed. Reg. 8982 (1989)... a RIO as O 8

EG Rn 3

LEGISLATIVE MATERIALS

Comprehensive National Energy Policy Act, H.R.

776, 102d Cong., 2d Sess. § 2805(c) (2) (1992),

reprinted in H.R. Rep. No. 474, 102d Cong., 2d

Sess., Part 8 at 39 (1992) 16

H.R. Rep. No. 218, 95th Cong., Ist Sess. (1977) 8

188 Cong. Rec. H3768 (daily ed. May 27, 1992) 16

188 Cong. Rec. H3778 (daily ed. May 27, 1992) 16

RULES

Fed. R. Civ. P. 42 (a) ......... an Aa 13

a Oko pin beech cco ecanaace 6, 15, 17

OTHER AUTHORITY

Manual for Complex Litigation, Second (1985) 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-843

SAVE OUR CUMBERLAND MOUNTAINS, INC.,

Petitioner,

Ve

MANUEL LUJAN, Secretary,

UNITED STATES DEPARTMENT OF INTERIOR, et al.

and

NATIONAL COAL ASSOCIATION and

AMERICAN MINING CONGRESS,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF RESPONDENTS

NATIONAL COAL ASSOCIATION AND

AMERICAN MINING CONGRESS IN OPPOSITION

COUNTERSTATEMENT OF THE CASE

The opinion below (Save Our Cumberland Mountains, -

Inc. v. Lujan, 963 F.2d 1541 (D.C. Cir. 1992), Pet. App.

la-22a) fairly sets forth the history of this litigation and

the facts necessary to the disposition of this petition.

2

Respondents National Coal Association and American

Mining Congress (‘““NCA/AMC”) seek to emphasize only

a few points which require clarification in light of Peti-

tioner’s statement of the case.

1. The so-called private settlement agreement at issue

in this case is of unprecedented scope, as the court be-

low found. 963 F.2d at 1552, Pet. App. at 2la (“We

came upon no reported case . .. in which another court

has allowed an environmental group to maintain a citizen

suit as far-reaching as SOCM’s’). Although the peti-

tion now tries to make the 1990 Settlement Agreement

more legally palatable by characterizing it modestly, Pet.

at 6, Petitioner Save Our Cumberland Mountains, Inc. and

its now-defunct co-plaintiff Council of Southern Moun-

tains, Ine. (collectively “SOCM’’) have not always been

so understated. They gave the court of appeals a mark-

edly different account of the Settlement Agreement, de-

scribing it as “a detailed, comprehensive road map for

the government’s enforcement of the Act” that was ‘‘in-

tended to... set[] forth the measures defendants would

be undertaking to fulfill their enforcement responsibili-

ties under SMCRA.” Brief of Appellees Save Our Cum-

berland Mountains, Inc., et al. (Jan. 31, 1992) at 3-4.

In short, the Settlement Agreement embodied SOCM’s

vision of how the Secretary must regulate.

The Settlement Agreement itself—a 39-page, heavily

footnoted and cross-referenced document with 12 sections

comprising over 60 subsections and 2 attachments—bears

out this description of SOCM’s ambitious goals. In pains-

taking detail it defined and limited the Secretary’s activi-

ties and made SOCM a partner in decisions relating to

the federal relationship with primacy states under the

Surface Mining Control and Reclamation Act, 30 U.S.C.

§§ 1201 et seg. (“SMCRA” or “Act’’), the operation of

the Interior Department’s computerized system (the Ap-

plicant Violator System, or “AVS”) for cross checking

applicants for surface mining permits with persons with

8

outstanding violations or unpaid penalties or fees, and

the establishment and execution of enforcement policy.

Indeed, at the time of the Settlement Agreement, this

litigation had already been the driving force behind three

major sets of Interior Department regulations creating

and implementing the AVS. See 53 Fed. Reg. 38868

(1988) ; 54 Fed. Reg. 8982 (1989); 54 Fed. Reg. 18438

(1989). In addition, the Settlement Agreement itself

purported to require the agency to engage in further

rulemakings concerning the use of the AVS, the process-

ing of permit applications, and the imposition of in-

dividual civil penalties in conjunction with incomplete or

inaccurate applications. The Secretary had initiated some

of those rulemakings prior to the decision below, and one

of them is still officially under consideration. See 56 Fed.

Reg. 48924 (1991) (withdrawn by 57 Fed. Reg. 47431

(1992) ) ; 56 Fed. Reg. 45780 (1991).

Concern over the sweeping nature of the Agreement

prompted the court below to recall, as a “fundamental

consideration” for determining the district court’s juris-

diction to approve the Agreement, that:

[Clourts customarily adjudicate episode- or area-

specific controversies; federal judges, applying federal

legislation, generally adhere to that mode of adjudica-

tion absent clear instruction from Congress—as in

the case of review of rulemakings setting nationwide

standards—that more encompassing action has been

committed to the judges’ charge.

963 F.2d at 1543-44, Pet. App. 4a. The court applied this

principle. Noting that federal courts “do not engage long-

term in grand scale supervision of an executive agency’s

administration of federal programs,” the court unani-

mously held that the district court lacked jurisdiction.

Id. at 1551, Pet. App. 20a (citing Heckler v. Chaney,

470 U.S. 821 (1985) ; Women’s Equity Action League v.

Cavazos, 906 F.2d 742 (D.C. Cir. 1990)). In sum, this

was not an everyday settlement of a limited private law-

4

suit, but an agreement whose scope raised serious ques-

tions about separation of powers and the breadth of ju-

dicial oversight.

2. NCA/AMC’s intervention in this case in 1989 was

timely, as the district court found. NCA and AMC are

national trade associations whose members include pro-

ducers of most of the Nation’s coal, metals, and indus-

trial and agricultural minerals, as well as manufacturers

of mining and mineral processing machinery and equip-

nent, and the engineering, contracting, and banking

firms that serve the mining industry. When SOCM com-

menced this litigation in 1981, NCA/AMC refrained

from intervening because the suit ostensibly had the

limited goal of bringing certain scofflaw operators into

compliance with SMCRA. See Save Our Cumberland

Mountains, Inc. v. Watt, 550 F. Supp. 979, 980 (D.D.C.

1982), Pet. App. at 33a. At that time, NCA/AMC rea-

sonably believed that the interests of their operator mem-

bers, who are established and responsible mine operators,

were not adversely affected by the litigation. As the

court below recognized, 963 F.2d at 1546 n.6, Pet. App.

at 9a, NCA/AMC did not realize until late 1988 and

early 1989 that renewed private settlement negotiations

between SOCM and the Secretary of the Interior, in

which NCA/AMC were not permitted to participate,

might spawn regulations and a private agreement of na-

tionwide scope that would threaten law-abiding compa-

nies with sanctions based on violations by others. Even

the district court found NCA/AMC’s motion to intervene

in 1989 timely, because only then were their interests

affected.

3. Petitioner’s statement of the case attempts to un-

dermine the court of appeals’ decision by distorting the

record. Purporting to state the parties’ positions with

respect to NCA/AMC’s preliminary motion below to va-

cate the district court’s decision for lack of jurisdiction,

Petitioner attributes to the Secretary the view that “‘ju-

5

risdiction had been proper in the district court,” and

charges that the Secretary “reversed himself” in brief-

ing on the merits, where he joined NCA/AMC in oppos-

ing jurisdiction. Pet. at 7. In fact, the Secretary op-

posed our preliminary motion on procedural and juris-

prudential grounds, but took no substantive position on

the jurisdictional issue, recommending that if the court

wished to consider it, it should do so during briefing on

the merits of NCA/AMC’s challenge to the Settlement

Agreement. Opposition of the Secretary of the Interior

to Motion to Vacate Judgment for Lack of Jurisdiction

(Jan. 18, 1991) at 9-13. On September 16, 1991, the

court denied the motion to vacate, and directed the par-

ties to include in their briefs the arguments raised in

the motion rather than incorporate those arguments by

reference.

REASONS FOR DENYING THE WRIT

The petition should be denied because the premise on

which it rests—that the decision below “destroys nation-

wide pattern and practice suits that have been routinely

approved and resolved by federal courts for years,” Pet.

at 8—is legally and factually incorrect. To force the de-

cision below into the rubric of Rule 10.1/c), Petitioner

has had to distort it beyond recognition, inflating it from

a ruling construing the specific, indeed unique, language

of one provision of a single statute—SMCRA— into an

edict that controls citizen suits under any provision of

the United States Code. From that premise, Petitioner

predicts doom for the federal court system. It claims

that the decision below will lead to “a multitude of dup-

licative lawsuits across the country,” Pet. at %, as though

a supposed threat of the proverbial flood of litigation

could override a legislatively established scheme for seek-

ing judicial relief, without regard to the many proce-

dural devices available—if in fact any were truly needed

—to minimize or avoid needlessly duplicative litigation.

6

Petitioner’s final argument is purely policy-based and

for that reason is not fit for judicial resolution, and in

any event rests on a fanciful and misleading account of

alleged Congressional and administrative support for this

litigation and of the court of appeals’ assessment of that

alleged support. Under the rules of this Court, these in-

accuracies alone are sufficient reason for denying the pe-

tition. Sup. Ct. R. 14.5. Petitioner in effect seeks to use

certiorari to resurrect an unprecedented use of the fed-

eral judiciary to empower a private special interest group

to enjoy a specially privileged role in the administration

of a federal agency. The petition should be denied.

THIS CASE IS NOT WORTHY OF SUPREME COURT

REVIEW

A. The Decision Below Does Not Preclude Pattern And

Practice Suits

The decision below concerned the interpretation of a

single provision of a single federal statute—§ 520(c) (1)

of SMCRA, which provides:

Any action respecting a violation of this Act or the

regulations thereunder may be brought only in the

judicial district in which the surface coal mining

operation complained of is located.

30 U.S.C. § 1270(c) (1) (1988). The nature and scope

of the decision below are clear from the court’s statement

of its holding:

Recognizing that the statutory construction question

is close, we hold that the special forum rule contained

in SMCRA § 520(c)(1), 30 U.S.C. § 1270(c) (1),

controls all citizen suits described in SMCRA

§ 520(a), 30 U.S.C. § 1270(a), and is not confined to

suits directed primarily against mine operators. We

further hold that the rule is not waivable.

963 F.2d at 1543, Pet. App. at 4a. The court repeated

the same narrow holding at the conclusion of the decision

7

and added a further limitation that the ruling covered

only the renewal of Petitioner’s citizen suit in 1989 and

the ensuing district court approval of the 1990 Settle-

ment Agreement, and not the consent decree entered in

1985 following Petitioner’s original settlement agreement

with the Secretary. 963 F.2d at 1552, Pet. App. at 21a-

22a.

Like a blowfish seeking to ward off enemies, Petitioner

labors mightily to engorge this statute-specific ruling into

precedent for all citizen suits under any federal statute.

The terms of the holding below, however, and the unique

wording of SMCRA § 520(c) (1), foreclose such a change.

The court below correctly found that significant dif-

ferences between the citizen suit provision of SMCRA

and its closest analogues in other statutes—§ 304 of the

Clean Air Act (“CAA”), 42 U.S.C. § 7604 (1988), and

§ 505 of the Federal Water Pollution Control Act

(“FWPCA” or “Clean Water Act’), 33 U.S.C. § 1365

(1988)—made those statutes inapposite to the interpre

tation of SMCRA § 520(c)(1). 963 F.2d at 1546-48,

Pet. App. at 10a-14a. Although Petitioner argues that

these other citizen suit provisions are “virtually” iden-

tical to SMCRA’s, Pet. at 12, it is the “virtually” that

sets them apart. If the provisions were truly identical to

SMCRA’s, SMCRA §520(c) (1) would have expressly

limited the forum to suits for certain types of violations

—violations of permits, regulations, or performance

standards—to parallel the CAA’s limitation to violations

of emission standards, 42 U.S.C. § 7604(c) (1), and the

FWPCA’s limitation to violations of effluent standards,

33 U.S.C. § 1865(c) (1).

Achieving this parallel would not have been difficult.

Congress could readily have described a limited class of

violations, but it did not do so, and instead used broader

language encompassing “any action respecting a viola-

tion of this Act.” 30 U.S.C. §1270(c) (1) (1988) (em-

8

phasis added).' As the court of appeals found, this lan-

guage “does not provide for choice,” 963 F.2d at 1550,

Pet. App. at 18a, and its clarity obviates the need to

resort even to legislative history, let alone to more re-

mote extrinsic sources such as “virtually” identical pro-

visions of other statutes. See Rubin v. United States,

449 U.S. 424, 480 (1981) (“when we find the terms of a

statute unambiguous, judicial inquiry is complete, ‘ex-

cept in rare and exceptional circumstances’”) (citations

omitted ) .?

A necessary consequence of the statute-specific nature

of the ruling is that the court of appeals’ decision cannot

be binding precedent for cases involving citizen suits

under statutes other than SMCRA.* In this respect, the

1 Petitioner cannot deny that its suit challenged an alleged ‘‘vio-

lation of this Act’: its Complaint in the district court repeatedly

used the word “violation” to describe the Secretary's éonduct which

it challenged. See 963 F.2d at 1549, Pet. App. at 16a.

2There is, in any case, no legislative history that supports

Petitioner’s strained reading. On the contrary, the House Com-

mittee expressed a clear preference for resolving SMCRA disputes

locally. See H.R. Rep. No. 218, 95th Cong., Ist Sess. 177 (1977)

(except for approvals of state programs and national rulemakings,

“Cajll other orders or decisions of the Secretary are subject to re-

view in the U.S. district court in the locality in which the surface

coal mining operation is located”). Moreover, SMCRA citizen suits

were tied to “various local and regional considerations,” not na-

ational, programmatic concerns. 7d. at 88 (emphasis added).

3 Thus, Petitioner’s litany of cases allegedly involving “pattern

and practice lawsuits” under other statutes, Pet. of 9-10, is not

germane. By Petitioner’s own admission, Pet. at 10, all but two of

the cases involved citizen suits under the Clean Air Act or Clean

Water Act, whose citizen suit provisions the court of appeals found

distinguishable from SMCRA’s. The other two cases are even less

relevant. National Black Police Ass'n v. Velde, 712 F.2d 569 (D.C.

Cir. 1983), was an action for declaratory and injunctive relief and

compensatory and punitive damages brought by six blacks and six

women who alleged that they had been denied employment, passed

over for promotion, or discharged solely on the basis of race or

sex by state or local law enforcement agencies that received fed-

9

petition embodies a glaring omission, for its fails to

identify any previously maintainable SMCRA citizen

suit (other than the instant litigation) that the court of

appeals’ decision would have newly foreclosed. Indeed,

Petitioner fails to point out that the decision below is

consistent not only with the D.C. Circuit’s own prior

rulings involving SMCRA § 520, but also with other

courts’ interpretations of that provision. As the court

explained, it had previously held that a SMCRA citizen

suit counterclaim could not be entertained in the District

of Columbia, because under § 520(c) (1), such a suit

“may be maintained only in the district where the mines

in question are located.” 963 F.2-i at 1550-51, Pet. App.

at 19a (discussing New Mexico ex rel. Energy and Min-

erals Dep’t v. U.S. Dep’t of Interior, 820 F.2d 441 (D.C.

Cir. 1987) ). The D.C. Circuit also reached the same con-

clusion about § 520(c) (1) on the only other occasion it

has construed the provision—in the panel decisions that

were automatically vacated when the court granted re-

hearing en banc in this and a companion case. Save Our

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

(D.C. Cir.), reh’g granted, opinion vacated (1984) ; Save

Our Cumberland Mountains, Inc. v. Clark, 725 F.2d

eral funds. See National Black Police Asa’n v. Velde, 631 F.2d 784,

785 n.1 (D.C. Cir. 1980), vacated and remanded, 458 U.S. 591 (1982).

The alleged failure of “enforcement” consisted only of the Law

Enforcement Assistance Administration’s decision not to terminate

grants to the state or local agencies. Because the court found no

mandatory duty to “enforce” by terminating the grant, it never

reached the permissible breadth of relief that t!> plaintiffs were

entitled to seek. See 712 F.2d at 574-77. Likewise, United States

v. FCC, 652 F.2d 72 (D.C. Cir. 1980) was not a citizen suit, but an

appeal from a final order of the FCC in a licensing action. The

appellants sought reversal of the order because, inter alia, the FCC

had allegedly failed to enforce a provision of the Clayton Act.

See id. at 75-76. The mere raising of the argument did not, how-

ever, as Petitioner suggests, convert the appeal, which was brought

by the licensee’s competitors and the Department of Justice, into

a citizen suit.

10

1434 (D.C. Cir.), reh’g granted, opinion vacated (1984),

Pet. App. at 46a. Given the D.C. Circuit’s consistent rul-

ings on the issue, it is no surprise at all—and strong

indication of lack of certworthiness—that on suggestion

for rehearing en banc, SOCM garnered no votes at all.

Order (Aug. 18, 1992), Pet. App. at 54a.

The decision below by its very terms fully maintained

the uniformity of all the D.C. Circuit’s decisions, as well

as consistency with other courts’ interpretations of

§520(c) (1) and related jurisdictional provisions in

SMCRA. See 963 F.2d at 1549-50, Pet. App. at 17a

(citing National Wildlife Fed’n v. Hodel, 661 F. Supp.

473 (E.D. Ky. 1987) (dismissing citizen suit against

Secretary under SMCRA § 520(a) (2) because plaintiffs

failed to identify specific mining operations located in

that judicial district and thus failed to satisfy forum

requirement of § 520(c)(1)); Oklahoma Wildlife Fed’n

v. Hodel, 642 F. Supp. 569 (N.D. Okla. 1986) (§ 520

(a) (2) only authorizes court to compel Secretary to take

some action, and does not provide for judicial review of

action taken; narrow reading appropriate in view of

Heckler v. Chaney, 470 U.S. 821 (1985))). Moreover,

it maintained uniformity with decisions of the Fourth,

Eleventh, and Federal Circuits concerning SMCRA’s

scheme for apportioning judicial review among different

courts, and reserving to the District of Columbia only

review of national rulemakings under § 526(a) (1), 30

U.S.C. § 1276(a) (1) (1988), which, like § 520(c) (1),

contains a mandatory forum provision with no allow-

ance for alternative forums. 963 F.2d at 1550, Pet. App.

at 17a-18a (collecting cases). Indeed, the decision below

not only maintained uniformity with all the others, but

in fact achieved uniformity by effectively overruling

the only decision ever to reach a contrary conclusion—

the 1982 ruling of the district court in this case. Save

Our Cumberland Mountains, Inc. v. Watt, 550 F. Supp.

979 (D.D.C. 1982), Pet. App. at 33a.

1]

Nor will the decision below cause the dire consequences

Petitioner predicts. Petitioner speaks of the demise of

pattern and practice suits, but nothing in the decision

below would preclude the bringing of multiple pattern

and practice suits under SMCRA in one or more “judicial

district{s] in which the surface coal mining operation [s]

complained of [are] located.” 30 U.S.C. § 1270(c) (1)

(1988). Petitioner in essence seeks not an interpreta-

tion of an existing statutory provision, but the judicial

creation of an entirely new cause of action that Congress

never authorized—a single-forum, programmatic SMCRA

citizen suit for judicial oversight of the Executive

Branch’s enforcement of SMCRA—plus the creation of

an entirely new forum for such suits in the District of

Columbia.* Plainly, SMCRA does not authorize such

suits. Any such authorization must come from Congress,

not the courts. Lujan v. National Wildlife Fed’n, 110

S. Ct. 3177, 3191 (1990) (although “understandably

frustrating’ to environmentalist organization with na-

tionwide, programmatic objectives, case-by-case approach

is the norm, “[e]xcept where Congress explicitly provides

* Petitioner envisions such suits for cases where “no site-specific

facts are involved.” Pet. at 13. Petitioner offers no support, how-

ever, for implying that this case (or any other SMCRA citizen

suit, for that matter) involves no site-specific facts. Indeed, there

can be no such support, for, as the court of appeals found, “[a]

charge that the Secretary is failing to enforce the Act must be

earth-bound” and “must rest on proof that mine operators, at spe-

cific locations, are evading the terms of the Act, and are thus

‘adversely affecting’ the interests of the complaining persons.” 963

F.2d at 1549, Pet. App. at 16a. ~

5 Congress clearly knew how to authorize nationwide citizen suits

under environmental statutes and provide a forum in the District

of Columbia when it saw fit. See 42 U.S.C. § 6972(a) (1988) (Re-

source Conservation and Recovery Act) and 15 U.S.C. § 2619(a)

(1988) (Toxic Substances Control Act) (both expressly providing

for venue for nationwide citizen suits in the District of Columbia).

The express provisions of those statutes make SMCRA’s silence all

the more compelling.

12

for our correction of administrative process at a higher

level of generality’’).°

B. Petitioner’s Speculation About Duplicative Litigation

Under Environmental Statutes Is Unfounded And In

Any Event Cannot Supersede The Plain Language Of

SMCRA § 520(c)(1)

Petitioner’s second overstatement of the consequences

of the decision below predicts “critical overload” for the

federal court system, as district courts “waste ... scarce

judicial resources” after being inundated with “numerous

identical lawsuits” not only under SMCRA, but also un-

der “other major environmental statutes.” Pet. App. at

14-16. As we have explained, there is no basis for ex-

tending the decision below as binding precedent in non-

SMCRA cases, so a substantial share of Petitioner’s

argument must be discounted for that reason alone.

Moreover, as to SMCRA cases, the court below did not

construe § 520(c) (1) to require that a separate citizen

suit be brought for each cause of action, but only that

the forum for the suit be the judicial district in which

- complained-of mining operations are located. Nothing

® Petitioner effectively concedes the point by quoting the same

passage from Lujan. Pet. at 11. Petitioner apparently believes,

however, that Congress has “explicitly provide{d]” for such an

exception in § 520(a)(2) of SMCRA. But § 520(a)(2) merely au-

thorizes the bringing of citizen suits against the Secretary or state

regulatory authority for failing to perform a mandatory duty under

the Act; it-is entirely silent as-to the “level of generality” such

suits might take. Petitioner gains nothing in this connection by

relying on Women’s Equity Action League v. Cavazos, 906 F.2d 742

(D.C. Cir. 1990), Pet. at 11, in which the court in dicta referred

to the citizen suit provisions of the Clean Air Act and Clean Water

Act but said nothing about SMCRA. Of greater significance here,

Cavezos held that the plaintiffs in that case could not maintain

their programmatic challenge to enforcement of civil rights laws,

but had to proceed case-by-case even though it may be “more

arduous, and less effective in providing systemic relief, than con-

tinuing judicial oversight of federal government enforcement.” Id.

at 751-52.

eS rrr i“ ;w””™”~COOOUU

13

in the decision below precludes the joining of multiple

common-issue causes of action in a single case, or the

consolidation of multiple cases presenting common issues,

provided, of course, that the plaintiffs do what SOCM

did not do here—bring suit in the district in which the

allegedly errant mines are located. Indeed, even if the

cases originate in multiple districts, a variety of meas-

ures (none of them cited by Petitioner) are available to

minimize duplicative litigation and conserve the resources

of the courts and the parties as well. See, e.g., Manual

for Complex Litigation, Second (1985) ; 28 U.S.C. § 1407

(1988) (coordinated or consolidated pretrial proceedings

of actions brought in different districts); Fed. R. Civ.

P. 42(a) (consolidation of actions involving a common

question of law or fact) .”

Even if an increase in district court caseload in SMCRA

cases would occur (and there is no reason to expect any-

thing of the sort), it cannot supersede § 520(c) (1)’s

plain command that the action be brought “only in the

judicial district in which the surface coal mining opera-

tion is located.” 380 U.S.C. §1270(c) (1) (1988). The

“burden” of multiple cases to which Petitioner alludes is

not extraordinary, but rather “is the traditional, and

remains the normal, mode of operation of the courts,”

Lujan v. National Wildlife Fed’n, 110 S. Ct. at 3191,

to which Congress created no exception in § 520 of

SMCRA. Petitioner in essence asks that courts be em-

powered to supersede Congress’ express judicial remedies

whenever their prophesied workloads require it. That

alleged burden, however, would not permit overriding the

will of Congress, as the court below correctly found. 963

F.2d at 1543-44, Pet. App. at 4a. See Lujan v. National

7 Moreover, the court of appeals’ decision has the salutary effect

of requiring citizens to sue promptly as they perceive problems

arise, rather than wait until they recur “at least 700 times,” as

SOCM’s Complaint put it, and then aggregating them all to allege

a “pattern and practice” violation of nationwide scope.

14

Wildlife Fed’n, 110 S. Ct. at 3191; Women’s Equity Ac-

tion League v. Cavazos, 906 F.2d at 751.8

While dwelling on this “incredible burden,” Pet. at

14, Petitioner neglects to mention the one burden that

is relevant to, and dispositive of, the interpretation of

§ 520(c) (1)—the burden that the single district court

would bear if it had to oversee a settlement agreement

“as far-reaching as SOCM’s.” 763 F.2d at 1552, Pet.

App. at 2la. That burden would entail monitoring not

only the Secretary’s enforcement efforts against the more

than 700 unspecified operators covered by SOCM’s com-

plaint, but also his development of the AVS (itself a

complicated, computerized cross-checking mechanism in-

volving multiple databases), and his use of the AVS in

reviewing all existing SMCRA permits as well as all per-

mit applications. Given these substantial burdens, it is

not at all clear, as Petitioner seems to assume, that a

nationwide suit would remedy SOCM’s grievances more

effectively than smaller-scale local actions. See Council

of and for the Blind of Delaware County Valley, Inc. v.

Regan, 709 F.2d 1521, 1532 (D.C. Cir. 1983) (en bane).

Moreover, such a burden would offend the principle of

separation of powers, because “it would empower one dis-

trict judge to act as supreme supervisor of [the agen-

cy’s] enforcement activities—a role more appropriately

reserved for the Executive under the oversight of Con-

gress.” Id. Thus, the court below properly identified

8 In Cavazos, an action for relief under civil rights law, the D.C.

Circuit explained:

Suits directly against the discriminating entities may be more

arduous, and less effective in providing systemic relief, than

continuing judicial oversight of federal government enforce-

ment. But under our precedent, situation-specific litigation

affords an adequate, even if imperfect, remedy. So far as we

can tell, the suit targeting specific discriminatory acts of fund

recipients is the only court remedy Congress has authorized

for private parties...

906 F.2d at 751 (emphasis added).

iinet

15

separation of powers as its “fundamental consideration”

in construing § 520(c) (1) and properly declined to let

its district court “engage long-term in grand-scale super-

vision of an executive agency’s administration of federal

programs.” 963 F.2d at 1543, 1551, Pet. App. at 4a, 20a.

C. Petitioner's Policy Argument Is Factually Misleading

And Legally Irrelevant

Petitioner’s final argument—that the Court should

grant certiorari because of the case’s alleged importance

to the country’s environmental welfare, Pet. at 16-17—

raises a pure question of policy that is fit for resolution

by the Legislative Branch, not this Court. See Chevron

U.S.A. Inc. v. Natural Resources Defense Council, 467

U.S. 837, 864 (1984). For this reason alone, the argu-

ment provides no basis for any judicial resolution, let

alone a grant of certiorari.

Indeed, Petitioner apparently recognizes as much and

attempts to compensate by suggesting (1) that this liti-

gation and the 1990 Settlement Agreement bear Congress’

imprimatur, so that the legislative question is settled;

(2) that the court below recognized (and therefore should

have given weight to) the reputed legislative “approval” ;

and (3) that Secretary Lujan himself spoke favorably

of the Settlement Agreement, so that the administrative

policy question is also settled. Pet. at 17 & n.11. Each

of Petitioner’s points is misleading and provides a sep-

arate basis for denying the petition under Rule 14.5 of

this Court.

First, although, as Petitioner states, Congress in the

past allocated funds to implement the 1985 consent de-

cree and the 1990 Settlement Agreement, those appropri-

ations measures do not tell the whole story, nor do they

represent Congress’ last word on this lawsuit. The com-

prehensive energy legislation enacted in the current ses-

sion of Congress originally contained provisions that

would have incorporated the terms of the 1990 SOCM

Settlement Agreement into SMCRA and would also have

16

amended § 520(c)(1) to eliminate the provision requir-

ing suit to be brought in the district in which the

complained-of mining operation is located.® But both

provisions proved controversial, were dropped by the

House during floor consideration, and were not part of

the final enactment. See Energy Policy Act of 1992, Pub.

L. No. 102-486, tit. XXV, 106 Stat. 2776 (1992). Sup-

port for the court of appeals’ decision and opposition to

Petitioner’s interpretation of § 520(c) (1) were clear:

I would like to bring to my colleagues’ attention the

recent decision of the U.S. Court of Appeals for the

District of Columbia in the Save Our Cumberland

Mountains versus Lujan case. The court agreed with

the administration that citizen suits under the Sur-

face Mining Act must be brought in the judicial dis-

trict where the harm is alleged, not in Washington,

D.C. I quote, “A charge that the Secretary is failing

to enforce the act must be earthbound.” In other

words, let’s not encourage judge-shopping by a small

cadre of DC-based lawyers adept at using these pro-

visions to halt coal development at every turn. If a

violation is not being enforced in West Virginia,

then bring a suit in Federal Court in West Virginia,

not here.

138 Cong. Rec. H8768 (daily ed. May 27, 1992) (state-

ment of Rep. Vucanovich).”° Thus, although Congress

® As reported out of the House Committee on Interior and Insular

Affairs, the bill would have amended § 520(c)(1) to read:

Any pending or future action brought under this section may

be brought in any judicial district where venue is proper under

title 28 U.S.C. 1391. In granting relief or approving or review-

ing any settlement in any pending or future action under this

section, the courts shall afford the relief necessary to achieve

full compliance with the Act and regulations.

Comprehensive National Energy Policy Act, H.R. 776, 102d Cong.,

2d Sess. § 2805(c)(2) (1992), reprinted in H.R. Rep. No. 474,

102d Cong., 2d Sess., Part 8 at 39 (1992).

10 As to the proposed amendment enacting the Settlement Agree-

ment, see 138 Cong. Rec. H3773 (daily ed. May 27, 1992) (state-

eV

17

may have been willing to fund implementation of the Set-

tlement Agreement so long as it reflected the district

court’s approval, Congress’ refusal to amend § 520 in the

face of the court of appeals’ ruling demonstrates Congress’

satisfaction with the court’s interpretation and not, as Pe-

titioner implies, an endorsement of Petitioner’s contrary

view. See CBS, Inc. v. FCC, 453 U.S. 367, 385 (1981).

Second, the court below did not, as Petitioner implies,

attach any weight to Congress’ earlier appropriations

measures. Petitioner quotes the court below as recogniz-

ing “the legislature’s approval of the AVS project,” Pet.

at 17, but that quote, when placed in its context, makes

clear that the court disagreed with SOCM’s assessment of

the appropriations measures:

We have taken into account SOCM’s suggestion that

Congress, by repeatedly allocating funds for the Sec-

retary’s compliance with the court-entered settle

ment agreements, see supra note 5, has effectively

matched SMCRA § 520(c) (1) with “(a) (1)” actions

and authorized recourse to 28 U.S.C. § 1891 for

“(a) (2)” suits. We do not read so much into the

appropriations measures, for there is no indication

that they stand for anything more than Congress’

readiness to enable the Secretary to comply with court

orders and perhaps the legislature’s approval of the

AVS project.

963 F.2d at 1549, Pet. App. at 16a-17a (emphasis added).

The court’s refusal to “read so much into the appropria-

tions measures” reflects settled law, see Tennessee Valley

Authority v. Hill, 487 U.S. 153, 190 (1978), making all

the more egregious Petitioner’s failure to present the

court’s statement “with accuracy” as required by Rule

14.5.

ment of Rep. Lent) (“The most objectionable provisions, those

dealing with replacement of water, leasing of the naval oil shale

reserves, and other provisions incorporating the settlement of an

agreement in a recent lawsuit have now been removed’”’).

18

Third, Petitioner incorrectly implies that the Settle-

ment Agreement enjoys Secretary Lujan’s approval, quot-

ing his favorable statement in a departmental news re-

lease issued on January 24, 1990, the date the Agree-

ment was signed. Pet. at 17 n.11. But it is one thing

for the head of an agency to express optimism at the

outset of a new venture and not to realize a mistake has

been made, and quite another to retain that outlook

after two years’ actual experience with the new scheme.

Agency positions are “not carved in stone,” Chevron,

467 U.S. at 863-64, but can change as the agency’s ex-

perience dictates. Experience taught this agency that

the Settlement Agreement was unworkable. In a state-

ment of position in 1992 which Petitioner does not cite,

Secretary Lujan opposed the legislation that would have

incorporated the Settlement Agreement into the Surface

Mining Act, because the codification of the Agreement

“would create an unwarranted and inflexible regulatory

straightjacket for the responsible federal agency.” Letter

from Interior Secretary Lujan to Rep. George Miller,

Chairman, House Committee on Interior and Insular

Affairs, enclosure at 4 (Apr. 7, 1992). The agency ap-

proval that Petitioner touts does not exist, and the Court

should not, by granting certiorari, enter the policy arena

as if it did.

CONCLUSION

For the foregoing reasons, the petition should be denied.

Respectfully submitted,

Of Counsel: JOUN A. MACLEOD *

WILLIAM E. HYNAN THOMAS C. MEANS

NATIONAL CoaL Association —s- J. MICHAEL KLISE

1130 17th Street, N.W. CROWELL & MORING

Washington, D.C. 20036 1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

EDWARD M. GREEN (202) 624-2500

STUART A. SANDERSON

AMERICAN MINING CONGRESS a for Respondents

1920 N Street, N.W. National Coal Association

Washington, D.C. 20036 and American Mining Congress

January 15, 1993 * Counsel of Record