ELR Citation: ELR 20143
No(s). s. 89-0504 et al (D.D.C. Sep 5, 1990)

The court rules on challenges to Surface Mining Control and Reclamation Act (SMCRA) regulations governing alluvial valley floors, coal exploration, and the period during which a coal mine operator must have a permit. The court first holds that the Secretary of the Interior acted within his authority in excluding ranching from the definition of "farming" on alluvial valley floors (AVFs). SMCRA §510(b)(5) prohibits mining on western AVFs in dry areas if the mine would preclude farming, but allows mining on undeveloped range lands not significant to farming on the AVFs. The Secretary reasonably interpreted SMCRA's legislative history in deciding not to extend the ban on AVF mining to operations that would hamper ranching.

The court next addresses challenges to the coal exploration regulations. The court holds that the regulation requiring a map or narrative description of the area to be explored when fewer than 250 tons of coal will be extracted is not arbitrary and capricious. The Secretary's decision not to specify minimum standards for the narrative description, but to leave it to the regulatory authorities, was reasonable. The court holds that the rule that allows coal obtained during exploration to be sold if the sale is for coal testing purposes only is not arbitrary and capricious. Environmentalists claim that the revised rule expands the testing exemption by deleting language that limited testing to that necessary to determine the coal's properties. The court concludes that this claim is frivolous, since the Secretary strengthened the rule to guard against using testing as a cover to mine coal without a permit. The court next remands the rule implementing the Act's prohibition on exploration in areas designated unsuited to mining absent valid existing rights (VER). The Secretary did not adequately justify his decision not to adopt a proposed rule that would have required proof of VER in applications to explore in areas designated as unsuitable for mining under SCMRA §522(e)(1), including national parks and wildlife refuges.

The court holds that rules requiring an operator to have a permit during coal mining operations, but not during reclamation, are not arbitrary and capricious. The Secretary adequately justified his decision to change his policy, which previously required an operator to renew a permit to finish reclamation activities. The Secretary pointed to a number of problems arising from the previous policy, including its inconsistency with the policy that an operator remains responsible for reclamation even if the permit is suspended or revoked. The Secretary's decision is authorized under SMCRA §506(a) and (d), the provisions for obtaining and renewing permits, since those provisions refer only to surface mining operations. Further, the environmentalists have not pointed to any practical harm that the new rules will cause.

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

Counsel for Plaintiffs
Kevin J. Haugrud
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-3522