ELR Citation: ELR 20409
No(s). s. C-81-0090W et al (D. Utah Dec 28, 1982)

In three consolidated cases, the court upholds, against motions for summary judgment, the Secretary of the Interior's surface coal mining unsuitability designation of federal land, pursuant to §522 of the Surface Mining Control and Reclamation Act (SMCRA). First, the court holds that §526 of SMCRA deprives it of jurisdiction to rule on plaintiffs' challenges to SMCRA regulations. Although §526 allows judicial review of agency regulations outside the District of Columbia, it does require that challenges to regulations be filed within 60 days of their promulgation. Next, the court holds that the coal lease holders' property interests are too uncertain to require the due process protection of adversary process even though the agency does have discretion to use an adjudicatory proceeding instead of the rulemaking authorized by its regulations. Further, the court holds that the determination of unsuitability was not so specific as to amount to an adjudication, that SMCRA itself does not mandate an adjudication, and that the factual findings made involved policy and value choices and thus did not demand an adjudication.

The court holds that irreparable damage to fragile or historic lands is not required for the unsuitability designation under §522(a)(3)(B). It finds that the §522(a) 60-day time requirement for a decision after a public hearing begins to run at the close rather than the beginning of the hearing, and that the requirement is directory rather than mandatory. Also, the court holds that the 60-day period for filing for judicial review begins on the date the Secretary files the statement of reasons. It finds that sufficient standards exist under §522(a)(3) to allow judicial review of the designation. Finally, the court holds that the designation need not be preceded by establishment of a data base and inventory system, or adoption of a state plan and a federal/state cooperative agreement.

Counsel for Plaintiffs
F. Allan Fletcher
Pruitt & Gushee
Beneficial Life Twr., Suite 875, Salt Lake City UT 84111
(801) 531-8446

Allan H. Littman, Michael R. Barr
Pillsbury, Madison & Sutro
P.O. Box 7880, San Francisco CA 94120
(415) 983-1000

Counsel for Defendants
Lawrence J. Leigh, Ass't U.S. Attorney
200 P.O. & Cthse. Bldg., 350 S. Main St., Salt Lake City UT 84101
(801) 524-5682

Alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2738

Counsel for Defendants-Intervenors
David Mastbaum
1720 Race St., Denver CO 80206
(303) 388-5711