ELR Citation: ELR 20406
No(s). 82-2763 (D.D.C. Dec 8, 1992)

The court holds that the U.S. Department of the Interior (DOI) must, within 30 days, advise the court of a feasible schedule for completing resource management plans (RMPs) for several federal resource areas in which there is a potential for surface mining. The court first holds that DOI's failure to adopt specific criteria to evaluate whether amended land use plans predating the Federal Coal Leasing Amendments Act (FCLAA) and the Federal Land Planning and Management Act (FLPMA) are comprehensive, does not violate the FCLAA, because Congress never amended the FCLAA to explicitly provide that only plans meeting all the requirements of FLPMA would be comprehensive. The court declines to issue a writ of mandamus to compel DOI to complete the RMPs required under FLPMA, because Congress did not include a statutory timetable for completing the planning requirements. However, the court holds that DOI's failure to promulgate the plans during the last 15 years, since FLPMA's enactment, warrants retaining jurisdiction over the case and requiring DOI to propose a timetable for completion of the planning requirements. The court next holds that DOI's deletion of a "reclaimability" criterion for consideration during land use planning from its regulations under the Surface Mining Control and Reclamation Act (SMCRA), does not make the regulations invalid on their face. Even though it may be politically impossible for DOI's Office of Surface Mining to deny lessees a permit to mine after they have made major investments, this concern addresses the wisdom of DOI's regulatory scheme, not its legality.

The court holds that DOI must promulgate notice and comment rules under FLPMA §202(f), because Congress left DOI no discretion in how to guarantee the stability of current public participation rules. The court holds that Congress intended the FCLAA's diligent development requirement to apply only to post-FCLAA leases and extensions of pre-FCLAA leases, because in providing penalties for failure to develop coal, Congress did not apply the penalty of lease-termination retroactively. The court further holds that DOI's force majeure exception to the three-year deadline for coal leaseholders to submit operation and reclamation plans is impermissible, because the statute unambiguously provides a three-year deadline. Finally, the court upholds DOI's regulations that require alleged surface landowners to prove that they qualify as surface owners whose consent is required under SMCRA §714 before surface mining of government-owned coal deposits may begin. Nothing in the regulatory scheme conflicts with the statute. It is highly speculative that a surface owner who would otherwise be qualified might remain unknown, and given minimal vigilance by surface owners in safeguarding their lands, it is unlikely that this will occur.

[A prior decision in this litigation is published at 20 ELR 21210.]

Counsel for Plaintiffs
Eldon Greenberg
Garvey, Schubert & Barer
1000 Potomac St. NW, 5th Fl., Washington DC 20007
(202) 965-7880

Counsel for Defendants
Alfred Ghorzi
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000