ELR Citation: ELR 21175
No(s). s. 88-0298 et al (D.D.C. Jun 8, 1990)

In a continuing challenge to Department of the Interior (DOI) regulations implementing the Surface Mining Control and Reclamation Act (SMCRA), the court generally upholds DOI's rules on revegetation, groundwater recharge capacity in surface lands above underground mines, and fish and wildlife in mining areas. The court first upholds all the revegetation rules promulgated by DOI relating to performance standards that surface mine operators must meet for restoring plant life on land that has been mined. The revegetation performance standards require surface coal mine operators to establish a diverse, effective, and permanent vegetative cover equal in extent to natural vegetation. This process, referred to as augmentation, involves seeding, fertilizing, irrigating, and other actions necessary to provide successful revegetation. A related standard requires surface operators to assume responsibility for successful revegetation for a period of five years after the last year of augmentation, except in areas of the country with less than 26 inches of annual precipitation, in which case the period is 10 years. Environmental and industry plaintiffs challenge DOI's distinction between selective husbandry practices, SMCRA jargon for maintenance and upkeep activities to ensure the success of revegetation, and augmentation. Under DOI's performance standards, once augmentation is complete and the responsibility period begins, subsequent augmentation requires the responsibility period to start over. Moreover, the standards provide that although primary responsibility for determining what are normal husbandry practices rests with the states, the Secretary of the Interior has review authority to approve or deny a state's husbandry practice for purposes of restarting the responsibility period. Since the Secretary has the power and discretion to choose between conflicting comments in deciding particular states' normal husbandry practices, the court will not second-guess the Secretary's choice, provided it is not inherently irrational or devoid of support in the record. The court next holds that these standards properly empower the Secretary to prescribe minimum standards for state programs and to approve amendments to those programs, and does not disrupt the federalist approach Congress wrote into SMCRA. Congress wanted to accommodate local and regional differences in husbandry practices standards, but also wanted to ensure that there was a floor beneath which standards could not drop. The Secretary's decision to require his approval of normal husbandry practices is a sound way to blend local differences with minimum national standards.

The court next holds that the performance standards requiring state forestry and wildlife agencies to approve minimum stocking and planting arrangements for revegetation of lands for which postmining use is planned to be wildlife habitat, recreation, and similar activities do not arrogate to the federal government power that Congress wanted the states to exercise, and are reasonable. Under the previous standard, only consultation with the state agencies was required. Moreover, the court finds that the rule does not upset any federalist balance that Congress sought to strike, nor delegate to states some authority that Congress reserved to the federal executive. In essence, the Secretary has merely declined to set national stocking and planting arrangements in recognition of local diversity. There is no reason to suppose that a state agency with expertise in mining coal has special knowledge of normal husbandry practices for wildlife habitat. To the contrary, the rule prudently requires the state agency with knowledge and experience in this field to approve planting and stocking arrangements to ensure that the wildlife habitat or forested land will become what has been planned.

The court next upholds DOI's replanting standards against environmentalists' claims that the replanting of trees during the responsibility period is an augmentative process that should restart the period of responsibility. Under the standards, the measure of success for any plan requires that 80 percent of the trees and shrubs must have been in place for 60 percent of the minimum period of responsibility. Environmentalists claim that such a rule would allow an operator to completely replant land during the first two years of the responsibility period. The court holds that the rule is not irrational or in violation of the law, since its purpose is to ensure that the trees and shrubs have a demonstrated staying power. In rejecting plaintiffs' request to order the Secretary to promulgate a national rule providing that replanting by an operator would restart the responsibility period, the court defers to the reasoned choice of the Secretary of the Interior. Provided the Secretary has support in the record, the court may not sort through plaintiffs' and DOI's arguments and pick the winner. The court also holds that the Secretary's rule requiring that success standards be met in any two years other than the first is not arbitrary or capricious, even though the comparable rule for land with a 10-year responsibility period requires that success standards be met for the final two years. The Secretary properly considered the vagaries of the weather when dealing with the long-term health of plants. Moreover, the court holds that the Secretary has the discretion to retain one rule unchanged, while making a change in another, albeit similar rule. Congress did not preclude the Secretary from accounting for the differences in weather by any means other than the length of the period of responsibility.

The court next holds that the Secretary's decision to delete any requirement for underground mine operators to restore recharge capacity was reasonable and within his discretion. SMCRA contains no reference to restoring recharge capacity and the burden cannot be on the Secretary to justify changing such a rule unless it was first a lawful dictate. The court accepts the explanation that geologic and technical considerations do not support promulgating such a rule. Finally, the court holds that the Secretary's revisions to the rules on what a coal mine operator must include about fish and wildlife in an application for a mining permit do not substantively change the old rules and were not an abuse of the Secretary's discretion. The environmental plaintiffs challenge the elimination in the revised rules of the requirement of a study regarding minimum standards for fish and wildlife resource information. The court holds that the Secretary struck a prudent balance between competing views. SMCRA does not mandate that fish and wildlife information and a protection plan be included in a permit application, and thus the Secretary has substantial discretion in fashioning rules. Moreover, the Secretary's revisions of the fish and wildlife plan are not arbitrary or capricious, and case law discussing national or minimum standards for alluvial valley floors has no bearing on interpreting this rule.

[The prior decision in this litigation is published at 20 ELR 20819.]

Counsel for Plaintiffs
Lloyd Galloway
Galloway & Greenberg
1835 K St. NW, Ste. 801, Washington DC 20006
(202) 833-9084

Counsel for Defendants
Kenton Fulton
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000