Case 120

Indiana Coal Council v. Lujan, 774 F. Supp. 1385 (D.D.C. 1991), vacated in part and appeal dismissed, No. 91-5397 (D.C. Cir. Apr. 26, 1993).

The Office of Surface Mining Reclamation and Enforcement in the Department of the Interior (OSM) promulgated regulations in 1987 under the Surface Mining Control and Reclamation Act (SMCRA) setting forth procedures for the consideration of historic properties in connection with the issuance of surface coal mining permits. Such permits are issued by State regulatory authorities pursuant to a delegation by OSM to operate permitting programs in compliance with Federal laws. The regulations prompted suits, later consolidated, by several coal industry groups and by preservation groups, including the National Trust for Historic Preservation. Industry plaintiffs challenged the portion of the regulations that allowed a State regulatory authority to require permit applicants to conduct surveys to identify unknown historic sites or to condition permits to avoid or mitigate adverse effects. Preservation plaintiffs alleged that the regulations failed to comport with the National Historic Preservation Act (NHPA) because they authorized‹but did not require‹surveys prior to permit issuance. Thus, according to preservation plaintiffs, the regulations did not ensure that sites would be identified or that Section 106 compliance would occur prior to mining.

OSM filed a motion to dismiss both plaintiffs' claims. First, OSM alleged that SMCRA did not give the district court jurisdiction over a claim for mandatory and injunctive relief compelling compliance with NHPA. The court disagreed and found that SMCRA's plain language gave it broad power to direct OSM to comply with NHPA. 774 F. Supp. at 1393. Similarly, the court found it had jurisdiction to grant mandamus relief through the mandamus provision in 28 U.S.C. § 1361. 774 F. Supp. at 1393. The court also rejected OSM's argument that plaintiffs' reliance on Federal question jurisdiction was barred by sovereign immunity.

OSM cited certain post-rulemaking actions to support its argument that the case was moot. The court rejected the mootness claim, observing that those activities provided a basis for mootness only if the court, not OSM, determined that they brought OSM into compliance with NHPA. OSM also alleged that because it was in the process of working with States to revise State programs, plaintiffs' claims were not ripe. Rejecting this argument, the court found that the issues raised were fit for judicial review, since the regulations had been promulgated four years earlier and OSM had had ample opportunity to establish its position. Id. at 1395. Further, the court noted that the legislative history of SMCRA indicated that Congress intended to avoid delay in implementing the program; there would be hardship to the parties if the court withheld the decision. Id.

After denying OSM's motion to dismiss, the court addressed industry plaintiffs' allegations. Industry plaintiffs argued preliminarily that review of the regulations was impossible because the regulations did not provide an adequate statement of basis and purpose. The court found, however, that the preamble adequately explained that SMCRA provided the statutory basis for the regulations.

Challenging the substance of the regulations, industry plaintiffs alleged that SMCRA did not authorize requiring the information that the regulations imposed. With regard to the regulations' identification and mitigation requirements for historic properties, the court interpreted SMCRA as encompassing such requirements. Id. at 1397. According to the district court, SMCRA recognizes that OSM must comply with other Federal laws in carrying out its programs and, although NHPA is not specifically listed, SMCRA implicitly requires compliance with NHPA. Additionally, SMCRA gives OSM broad authority to promulgate regulations necessary to carry out the purpose of SMCRA, including mitigation requirements for historic properties even where valid existing rights are claimed. Id. at 1398-99. The court observed that "the very purpose of SMCRA is to strike a balance between the production of coal and the protection of the environment . . . ." Id. at 1399 (citing 30 U.S.C. § 1202).

Concluding that OSM was authorized to promulgate regulations on identification and mitigation of adverse effects to historic properties, the court then examined whether the regulations fulfilled the requirements of NHPA. OSM conceded that approval of State programs, review and approval of amendments to State programs, and grants of Federal monies to such programs constitute undertakings requiring compliance with Section 106. Id. at 1400. OSM also conceded that individual permit decisions made by OSM directly in States without approved programs, and permits issued by OSM on Federal lands, are also undertakings. Id. However, OSM argued that permits issued by State agencies pursuant to a delegated program from OSM are not undertakings.

The court disagreed with OSM and held that permits issued by State agencies pursuant to a delegated authority from OSM are undertakings requiring compliance with Section 106. The court found OSM's ongoing involvement in the program to be significant and distinguished the case from Lee v. Thornburgh, 877 F.2d 1053 (D.C. Cir. 1989). First, the court noted that State programs receive 50 to 80 percent of their funding from OSM. The court next determined that OSM had a "powerful oversight role" over State agencies, noting that SMCRA requires OSM to inspect operations and evaluate State programs, issue notices of violation when warranted, and declare cessation orders where violations pose significant and imminent environmental harm. 774 F. Supp. at 1401. The court further noted that SMCRA requires OSM to take over a State program if the State is not properly carrying out the program. Id. The legislative history of SMCRA also indicated that Congress desired Federal oversight over State permit programs.

The court distinguished several cases where courts held that NEPA did not apply to State permit decisions involving other delegated Federal programs, id. at 1402-03, noting that it was unclear whether Congress intended NHPA and NEPA to be co-extensive, particularly because NEPA's threshold appeared higher than that of NHPA. Id. at 1402 n 13.
The court remanded the case to the Secretary of the Interior to bring OSM into compliance with NHPA and its finding that permits issued through State programs are Federal undertakings.

OSM and industry plaintiffs appealed the district court decision. The Court of Appeals for the District of Columbia Circuit dismissed the appeals of the preservation plaintiffs, finding that the 1992 amendments to NHPA rendered the appeals moot. [Ed. note: The 1992 amendments essentially codified the district court's ruling that State permits issued pursuant to a federally delegated program are undertakings.] Because of the 1992 amendments, the court of appeals also vacated "that portion" of the district court opinion "holding that the OSM regulations failed to comply with the NHPA." Although the industry plaintiffs' appeal was not declared moot, they later dismissed their appeal voluntarily.

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