ELR Citation: ELR 20494
No(s). 79-1144 (D.D.C. Mar 22, 1985)

The court holds that the Office of Surface Mining promulgated parts of its regulations defining "valid existing rights" under the Surface Mining Control and Reclamation Act (SMCRA) without sufficient notice and opportunity for comment as required by Administrative Procedure Act §553 and, alternatively, by SMCRA §501(b). The court first holds that the definition is legislative, rather than interpretive, and so must be issued with notice and comment. The way the agency has treated the rules and the rules' role in the SMCRA regulatory scheme suggest they are legislative.

The court then considers whether the final rules differed so much from the proposed rules that the public was deprived of opportunity to comment. The final rules, which embodied a constitutional taking test, were so unlike the proposed rules, which embodied three "mechanical" and three alternative tests, that a new notice-and-comment period would provide the public with the first occasion to offer pertinent and new criticism that the agency might find convincing. The takings test is new to the regulations and was not clearly embodied in the previous (1979) definition of valid existing rights. Also, a provision in the June 1982 proposed definition did not put the parties on notice of this new standard. Though some of the comments addressed takings, they did not address the sorts of concerns that probably would have been raised if the final rule had been offered for comment. In fact, the comments suggest the commenters did not anticipate that the mechanical tests would be abandoned in favor of the takings approach. The court further holds that publication of the final rule in an environmental impact statement (EIS) nine months before publication in the Federal Register did not constitute actual notice with opportunity for comment, because the agency did not seriously consider amending the rule based on comments received in response to the EIS.

The court rejects a second challenge, that one portion of the regulation is unlawful because it allows valid existing rights to come into being after SMCRA's enactment. The court holds that the regulation is in accord with the statute and prior court opinions but remands the portion of this section that incorporates the takings test for further notice and comment.

The court next holds that the agency promulgated rules proscribing mining on federal holdings in national parks and other protected areas without adequate notice and comment. The rules would allow mining on private inholdings in such areas, a provision of questionable legality that has not been fairly opened to public comment.

The court rejects plaintiffs' challenge to provisions allowing the states to determine valid existing rights on private inholdings. To the extent the challenge addresses the SMCRA federal land program regulations, it is untimely. The only reviewable action is the withdrawal of 30 C.F.R. §761.4. For the regulations to do as plaintiffs wish and give the federal government the right to review all valid existing rights on inholdings, the agency would have to find that all inholding development affects neighboring federal holdings. There is no need for the court to force the agency to make this finding. So long as the regulations reserve the possibility of federal rulings on existing rights when operations affect federal lands, the regulations are consistent with SMCRA. Also, plaintiffs have not demonstrated how the withdrawal of §761.4 causes the harm to which they allude.

Finally, the court holds that the "needed for and adjacent" test was promulgated without adequate notice and comment, since nothing in the proposed rule suggested the expansion of the test embodied in the final rule.

[Related cases appear at 9 ELR 20720; 10 ELR 20113, 20208, 20526; 11 ELR 20941; 14 ELR 20617; and 15 ELR 20481.

Counsel are listed at 14 ELR 20617.