United States District Court, D. Alaska
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE.
This is
an administrative appeal from a decision of the Office of
Surface Mining Reclamation and Enforcement (OSM). Plaintiffs
are Castle Mountain Coalition, Cook Inlet Keeper, Alaska
Center for the Environment, Alaska Community Action on
Toxics, The Sierra Club, and Chickaloon Village Traditional
Council (collectively, Castle Mountain). Defendants are
comprised of OSM, the United States Department of the
Interior, and Joseph Pizarchik, in his official capacity as
Director of OSM (collectively, Federal Defendants). There are
two Intervenor-Defendants: Usibelli Coal Mine, Inc. and the
State of Alaska. Coal River Mountain Watch appears as
amicus curiae. Before the Court are cross-motions
for summary judgment filed by Castle Mountain and the Federal
Defendants.[1] The Court heard oral argument on the two
motions on January 29, 2016.[2]
I.
BACKGROUND
Plaintiffs
are several non-profit organizations and the governing body
of a federally-recognized Native Village. They assert that
their "members, supporters, and citizens have health,
subsistence, cultural, economic, recreational, scientific,
environmental, aesthetic, educational, conservation,
commercial, and other interests in the Matanuska
Valley."[3] They challenge OSM's decision
regarding the State of Alaska's permitting of coal mining
operations by Usibelli at the Wishbone Hill Mine near Sutton,
Alaska, a community located roughly 60 miles northeast of
Anchorage.
At the
heart of this dispute is the interpretation of the phrase
"shall terminate" in the following statute of the
Surface Mining Control and Reclamation Act (SMCRA):
[A surface coal mining] permit shall terminate if the
permittee has not commenced the surface coal mining
operations covered by such permit within three years of the
issuance of the permit: Provided, That the
regulatory authority may grant reasonable extensions of time
upon a showing that such extensions are necessary by reason
of litigation precluding such commencement or threatening
substantial economic loss to the permittee, or by reason of
conditions beyond the control and without the fault or
negligence of the permittee . . . .[4]
Plaintiffs
assert the phrase "shall terminate" in this statute
unambiguously means that the permit automatically terminates
if mining operations have not commenced within three years
from the date of a coal mining permit's issuance and no
extension has been granted. OSM found, and all of the
Defendants assert to this Court, that the statute is
ambiguous and the regulatory authority may interpret, and has
reasonably interpreted, it to require administrative
termination proceedings to be initiated before a permit may
be terminated.
The
implementation of SMCRA is overseen by the Secretary of the
Interior through OSM. SMCRA establishes minimum nationwide
standards for surface coal mining operations, but it also
allows states to assume primary jurisdiction (primacy) over
the regulation of surface coal mining within the state if the
Secretary approves a state program that "provides for
the regulation of surface coal mining and reclamation
operations in accordance with the requirements of [the
Act]."[5] However, in primacy states OSM retains
certain enforcement powers under § 1271 of the Act. This
statute provides that whenever the Secretary has reason to
believe that any person is in violation of any requirement of
the Act or any permit condition required by it, "the
Secretary shall notify the State regulatory authority"
by issuing a ten-day notice (TDN), so termed because if a
state regulatory agency "fails within ten days after
notification to take appropriate action to cause said
violation to be corrected or to show good cause for such
failure and transmit notification of its action to the
Secretary, the Secretary shall immediately order Federal
inspection of the surface coal mining operation at which the
alleged violation is occurring . . . ."[6] Moreover, if a
primacy state is not enforcing any part of its program, SMCRA
states that "the Secretary may provide for the Federal
enforcement, under the provisions of section 1271 of [the
Act], of that part of the State program not being enforced by
such State."[7]
The
Secretary approved Alaska's program (ASCMCRA or the
Alaska Program) in May 1983, thereby making the Alaska
Department of Natural Resources (DNR) the primary regulatory
authority for all surface coal mining operations on
non-federal and non-Indian lands within Alaska.[8] Both the State of
Alaska and Usibelli maintain that because the Secretary
approved the Alaska Program, this case should be determined
under Alaska law and the federal statute is "largely
irrelevant."[9] The Court disagrees. SMCRA sets the
minimum standards applicable throughout the nation; state
programs that regulate surface coal mining must do so
"in accordance with the requirements" of the
federal Act.[10] Accordingly, a state's provisions
may be more stringent-but not less stringent-than SMCRA's
requirements.[11] In accordance with this requirement of
federal law, the Alaska termination statute substantially
tracks the language of SMCRA, as it must. This case concerns
the interpretation of the federal termination provision, with
which Alaska's parallel provision must, at a minimum, be
in accord.
SMCRA
prohibits surface coal mining without a permit.[12] Permits are
generally valid for five years. However, § 1256(c) of
the Act, cited above, provides that a permit "shall
terminate" if mining operations do not commence within
three years of the permit issuance and sets out the two
circumstances when an extension can be granted. A regulatory
authority can also renew permits-which is distinct from
extending the time to commence mining.[13] In
conformance with SMCRA, Alaska's statutory framework
tracks these federal provisions.[14]
Pursuant
to the Alaska Program, DNR first issued two permits for the
Wishbone Hill Coal Project to Idemitsu Alaska, Inc. in
September 1991.[15] Idemitsu did not start surface coal
mining operations within three years after issuance of the
permits. In August 1994, after receiving a request for an
extension from Idemitsu, DNR extended the time to start
mining operations to September 4, 1996.[16] In September
1995, DNR approved the transfer of the Wishbone Hill permits
to North Pacific Mining Corporation (NPMC).[17] In January
1996, NPMC wrote to DNR, seeking information on the
requirements for renewal of the permits.[18] After
additional correspondence, DNR renewed the permits for a
five-year period ending September 4, 2001.[19] DNR's
public notice of its permit renewal decision stated
"[t]he applicant has again requested an extension for
beginning mining due to ongoing marketing
efforts."[20] In a letter accompanying the 1996 permit
renewal, DNR informed NPMC that "should mining not
commence within this renewal term, then due to the length of
time since the original permit application work was completed
no further renewals will be considered without an extensive
review of the original applications and the baseline
information they were based on."[21] In the
decision under review in this case, OSM found that in the
1996 permit renewal DNR "did not expressly address the
requirements of AS 27.21.070(b) [Alaska's termination
provision] and did not expressly grant a continuation of
extension of time to commence mining."[22]
In
December 1997, DNR approved the transfer of the permits to
Usibelli, subject to the conditions and stipulations of the
original permits.[23] In April 2001, Usibelli applied for a
renewal of the permits for an additional five-year
term.[24] In 2002, DNR renewed the permits until
September 2006.[25] In November 2006, DNR renewed the
permits for another five-year term expiring in November
2011.[26] Neither Usibelli's 2001 permit
renewal request nor its 2006 permit renewal request contained
a request for an extension of the time to commence mining
operations; likewise, each permit renewal by DNR was silent
in that regard.[27] Coal mining operations at Wishbone Hill
did not begin until June 2010, when Usibelli started building
a road from the Glenn Highway to the project
site.[28]DNR renewed the permits most recently in
October 2014.[29]
Castle
Mountain asserts that it "became aware of the invalidity
of the permits and unpermitted coal mining operations"
in September 2011 when reviewing DNR's 2011 proposal to
renew the permits.[30] In November 2011, Trustees for Alaska
submitted a citizen complaint to DNR on behalf of several
groups including Plaintiffs, asserting that the permits had
terminated by operation of law on September 4, 1996, because
no mining operations had commenced by that
date.[31] DNR responded in December 2011,
asserting that it had properly renewed the permits in 1996.
DNR added that "while activities prior to 2010 might not
rise to the level of ‘coal mining operations' as
defined by [ASCMCRA], coal mining operations did commence as
of 2010."[32] DNR concluded that the Wishbone Hill
permits were "valid and enforceable, and therefore there
is no activity that warrants a Cessation Order to be issued
under [the applicable state regulation]."[33]
On
December 14, 2011, Trustees for Alaska sent a letter to OSM
captioned "Citizen Complaint" asserting that
Usibelli was conducting surface coal mining operations at
Wishbone Hill without valid permits in violation of
ASCMCRA.[34] In response, OSM issued TDNs to DNR that
informed DNR of the Trustees' letter and directed DNR to
respond with an explanation of what action it intended to
take or why it did not believe a permit deficiency
existed.[35]
On
January 6, 2012, DNR provided a comprehensive response to OSM
in support of its position that "the Alaska Program has
taken all appropriate action necessary in affirming that the
Wishbone Hill permits are valid and therefore declining an
inspection and cessation order."[36] DNR's
response acknowledged that the Alaska Program requires
extensions to commence operations to be addressed in the
notice of renewal decisions, and that its 2002 and 2006
permit renewal decisions did not "contain a discussion
of extensions."[37] But DNR maintained that "by
granting a renewal of the permit with full knowledge of the
status of Usibelli's operations (i.e., that coal
mining operations had not begun), DNR was implicitly granting
an extension when it granted the permit renewals in 2002 and
2006."[38] And while DNR acknowledged that
extensions of the date to begin mining operations
"should be documented in the permit renewal notices,
" it asserted that "the failure to do so does not
lead to an automatic termination of the permits under the
extension statute."[39]
In July
2012, OSM issued its initial evaluation of DNR's January
2012 response and concluded that "DNR's assertion
that the permits are valid is not supported by the facts or
applicable law."[40] OSM did not observe any ambiguity in
the relevant statutes; rather, it repeatedly observed that
under those statutes, "a permit terminates by operation
of law if a permittee does not begin surface coal mining
operations under the permit within three years after the
permit is issued."[41] OSM found that DNR had not explicitly
granted NPMC's extension request in 1996, and concluded
that as a result, the "permits expired on September 4,
1996, by operation of AS 27.21.070(b) when NPMC failed to
commence mining by that date." OSM added that
"[e]ven if one assumed that DNR's 1996 permit
renewal and extension were valid, the subsequent renewals in
2002 and 2006 appear not to have been valid because, once
again, neither [Usibelli] nor DNR seem to have made the
showing or findings required by AS 27.21.070(b) to justify an
extension of time to commence mining."[42]
OSM's
July 2012 initial evaluation discussed and rejected DNR's
"implicit extension" theory, finding it to be at
odds with the requirements of AS 27.21.070(b). OSM concluded
that based on DNR's submission to date, it could not
"make the determination that the standards for
appropriate action or good cause for failure to take action
have been met because information is missing from the record
that may be available from [DNR]."[43] OSM accorded
DNR an additional ten days to provide any supplemental
information in support of its position.
In
August 2012, DNR provided a lengthy supplemental response
that challenged OSM's authority to use a ten-day notice
process in this circumstance and reiterated DNR's
"implicit extension" theory.[44] DNR also
asserted that even if OSM had the authority to use the TDN
process, it should retract its TDNs for Wishbone Hill because
DNR's decision regarding the 2011 permit renewal was then
pending.[45]
In
November 2014, OSM issued its final decision on Castle
Mountain's complaint that is the subject of this
appeal.[46] OSM first found that it had the
authority to issue the ten-day notices in this context. OSM
then reaffirmed its prior determination that DNR had not
followed the appropriate procedures in connection with
extensions of the time for the permit holders to commence
mining operations. In this regard, OSM again rejected
DNR's implicit extension theory. But OSM reversed its
earlier position regarding permit termination and concluded
that federal law does not require surface mining permits to
terminate by operation of law when mining operations have not
commenced; rather, OSM concluded that a state may permissibly
interpret SMCRA to require that an administrative proceeding
must be initiated to terminate a permit based on a failure to
commence mining operations before the permit can be
terminated. OSM then found that "DNR failed to [initiate
a termination proceeding], and, consequently, Usibelli was
not operating without a permit."[47]
OSM
presented two primary reasons in support of its conclusion
that SMCRA does not mandate permit termination as a matter of
law when an extension of the time to commence mining
operations has not been sought or obtained. First, OSM
observed that "[u]nder the Chevron line of
precedent, if SMCRA is silent on the issue of whether
termination of permits should automatically result when
permits are not commenced within three years, then [OSM] may
permissibly interpret the statute (and our regulations
implementing the statute) as either effecting an automatic
termination or not doing so, so long as the interpretation it
adopts is reasonable."[48] Second, OSM cited to cases
that recognize the severity of an automatic forfeiture and
concluded that "if forfeiture is not mandated by
‘clear and unequivocal' language in SMCRA and the
applicable Federal regulations, then we should not construe
our statute and regulations as imposing this harsh
penalty."[49] Accordingly, OSM found DNR's
position regarding permit termination "consistent with
both the approved Alaska regulatory program and with the
Federal regulations and is no less stringent than section
506(c) of SMCRA [the federal termination provision]."
OSM also found that "[t]he draconian and
counterproductive remedy of shutting Usibelli down would run
counter to the second purpose of section 506(c), ensuring the
prompt development of the nation's coal resources."
OSM concluded that DNR "had ‘good cause' for
not taking action against Usibelli for operating without a
permit." But OSM stated that DNR "has an
affirmative duty to monitor whether timely mining operations
are occurring and to issue prompt determinations in cases
where mining operations have not commenced within three
years." It directed DNR to work with OSM to formulate
"a written Action Plan to address [DNR's] failure to
implement [its] program provisions on the timely commencement
of mining operations."[50]
Castle
Mountain initiated this action in federal district court in
March 2015 seeking to vacate and set aside OSM's
determination.
II.
JURISDICTION
Plaintiffs
have asserted that the Court has subject matter jurisdiction
over this action pursuant to 5 U.S.C §§ 702-06
(Administrative Procedures Act or APA), 28 U.S.C.
§§ 2201-02 (declaratory judgments), and 28 U.S.C.
§ 1331 (federal question jurisdiction).
Federal
courts lack jurisdiction over APA challenges to agency
actions when Congress has provided another "adequate
remedy."[51] The Federal Defendants assert that
SMCRA's citizen suit provision would have provided
another adequate remedy to Castle Mountain such that
Plaintiffs are precluded from bringing an action under the
APA. However, to bring a citizen suit under SMCRA, a would-be
plaintiff must, as a general rule, give the regulating entity
written notice of the violation sixty days before filing the
action. Here, it is undisputed that no such sixty-day notice
was given. Therefore, the Federal Defendants maintain that
Castle Mountain cannot bring this action at all because
Castle Mountain did not provide sixty days' notice to the
Secretary as required by SMCRA before commencing this
lawsuit.[52] Nor, argue the Federal Defendants, can
Castle Mountain bring an APA challenge because it had an
alternative adequate remedy of which it failed to avail
itself.[53]
The
Federal Defendants maintain that Castle Mountain could have
brought a citizen suit under § 1270(a)(2), which
provides:
[A]ny person having an interest which is or may be adversely
affected may commence a civil action on his own behalf to
compel compliance with this chapter-
. . . .
(2) against the Secretary . . . where there is alleged a
failure of the Secretary . . . to perform any act or duty
under this chapter which is not discretionary with the
Secretary . . . .[54]
The
Federal Defendants assert that this citizen suit provision
applies because "the substance" of Castle
Mountain's allegations is that "the Secretary had a
non-discretionary duty, which she failed to fulfill, to order
a federal inspection and issue a cessation order because
unpermitted mining was taking place at Wishbone
Hill."[55] Castle Mountain counters that its
challenge is limited to the review of a discretionary act by
the agency that falls under the APA, an issue which it frames
as whether "OSM's determination that the Alaska
Department of Natural Resources . . . ha[d] shown good cause
for not taking action in this case" was based on an
"unlawful interpretation of SMCRA."[56] Plaintiffs
assert they principally seek declaratory relief and vacatur,
and not an order compelling OSM to undertake a
non-discretionary act.[57] Thus, Castle Mountain asserts that
the citizen suit provision in SMCRA does not apply and the
Court has subject matter jurisdiction under the APA.
OSM's
enforcement duties upon receipt of a citizen complaint are
set forth in 30 U.S.C. § 1271(a)(1).[58] That
provision does not assign any non-discretionary duties to the
agency unless and until the Secretary has found "reason
to believe" that a violation exists. Here, Castle
Mountain takes issue with OSM's finding that the agency
did not have reason to believe that a violation had occurred
and asserts that the finding is not in accordance with the
law, specifically § 1256(c). Castle Mountain's First
Amended Complaint, as framed, does not directly concern the
Secretary's non-discretionary actions or duties, and does
not seek to compel the Secretary to take some
action.[59] Accordingly, the citizen suit provision
in § 1270(a)(2) does not provide a jurisdictional basis
for the Complaint; thus, the Court has jurisdiction under the
APA and 28 U.S.C. § 1331.[60]
III.
STANDING AND RIGHT TO SUE
The
State of Alaska challenges Castle Mountain's standing to
bring this case. Under Article III of the Constitution,
"[t]he jurisdiction of the federal courts is limited to
‘cases' and
‘controversies.'"[61] The Supreme Court has
deduced a set of requirements that make up the constitutional
minimum of standing:
[A] plaintiff must show (1) it has suffered an "injury
in fact" that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.[62]
Castle
Mountain maintains that each Plaintiff "has a mission to
protect the Matanuska Valley and traditional Tribal lands
from improperly permitted coal mining" where their
members and Tribal citizens "reside near, visit, or
otherwise enjoy the Matanuska Valley and the mine site for
numerous purposes, including recreation, wildlife viewing,
and cultural and subsistence practices."[63] No party
asserts that these interests do not satisfy the requirements
for Article III standing.
However,
in addition to Article III standing, "a statutory cause
of action extends only to plaintiffs whose interests
‘fall within the zone of interests protected by the law
invoked.'"[64] The State argues Plaintiffs lack
standing because Plaintiffs' "interests are not
within the zone-of-interest that [the termination] provision
seeks to protect."[65] The APA provides a cause of action to
persons who are "adversely affected or aggrieved by
agency action within the meaning of a relevant
statute."[66] In the APA context, the Supreme Court
has held that the test is "not especially
demanding" and "forecloses suit only when a
plaintiff's interests are so marginally related to or
inconsistent with the purposes implicit in the statute that
it cannot reasonably be assumed that Congress authorized that
plaintiff to sue."[67]
The
State correctly observes that Castle Mountain's right to
sue must be measured against the statutory purposes specific
to the termination provision in SMCRA-30 U.S.C. §
1256(c).[68] The State maintains that the purpose of
that termination provision is to "prevent squatting on
mining permits, " and that it "vindicates purely
economic interests."[69]In the State's view, the
interests expressed in Plaintiffs' declarations
"describe the harms associated with
commencement of mining at Wishbone Hill, not the
harms associated with a failure to commence mining
operations at Wishbone Hill."[70] The State asserts that
"[e]nvironmental protection is simply not the purpose of
the termination provision." Thus, the State maintains
that Castle Mountain's purported interests fall outside
the zone of interests protected by the termination provision,
such that Plaintiffs have no right to challenge the
agency's interpretation of the termination statute under
the APA.[71]
Castle
Mountain responds that its interests are well within the zone
of interests protected by the termination provision, which it
asserts has dual goals: "ensuring development of coal
resources and ensuring that permits and reclamation plans do
not become outdated."[72] Plaintiffs observe that
OSM's own regulations "deem[] operating without a
‘valid' permit to ‘constitute a condition or
practice which causes or can reasonably be expected to cause
significant imminent environmental
harm.'"[73] Thus, Castle Mountain maintains that
"[t]he delay caused the permits to terminate, and the
resultant unpermitted mining strongly implicates
[Plaintiffs'] environmental, recreational, health,
cultural, property, and public participation
interests."[74]
The
Court finds that Castle Mountain's asserted interests
readily fall within the zone of interests protected by the
termination provision, as that provision does not relate only
to the economic attributes of mining. And Castle Mountain has
shown it is adversely affected by the agency's
interpretation of the termination provision. In light of the
foregoing, Castle Mountain has both Article III standing and
the right to sue OSM over its interpretation of SMCRA's
termination provision under the APA.
IV.
THE SMCRA TERMINATION PROVISION
The APA
directs courts to "hold unlawful and set aside" an
agency decision that is "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
law."[75]Here, the question is whether the
agency's interpretation of the termination statute is
"not in accordance with law."[76]
In
reviewing an agency's interpretation of a statute, a
court's first task is to "determine whether
‘Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress.'"[77]
The
statute at issue is 30 U.S.C. § 1256(c), which again
provides that:
[A coal mining] permit shall terminate if the permittee has
not commenced the surface coal mining operations covered by
such permit within three years of the issuance of the permit:
Provided, That the regulatory authority may grant
reasonable extensions of time upon a showing that such
extensions are necessary by reason of litigation precluding
such commencement or threatening substantial economic loss to
the permittee, or by reason of conditions beyond the control
and without the fault or negligence of the permittee . . . .
OSM
upheld Alaska's interpretation of the provision "to
mean that if mining operations do not commence within three
years, and no extension is granted, the permit will not
terminate automatically; rather, the permit remains valid
until the regulatory authority takes an affirmative action to
terminate it."[78] All Defendants support OSM's
interpretation. Plaintiffs argue that OSM's
interpretation is not in accordance with law because the
phrase "shall terminate" is not ambiguous. Rather,
Plaintiffs maintain that it unambiguously mandates permit
termination when mining operations do not begin within three
years of a permit's issuance and no explicit extension
has been granted.
Accordingly,
the Court must first determine if the disputed phrase
"shall terminate" is ambiguous. "A statute is
ambiguous if it is susceptible to more than one reasonable
interpretation. The starting point is the statutory text. . .
. When a statute does not define a term, we generally
interpret that term by employing the ordinary, contemporary,
and common meaning of the words that Congress
used."[79] Here, the statute does not define the
terms "shall" and "terminate." SMCRA was
passed in 1977. In 1976, Webster's Third New
International Dictionary explained that "shall" is
"used in laws, regulations, or directives to express
what is mandatory, " and defined "terminate"
to mean "to bring to an ending or cessation in time,
sequence, or continuity: CLOSE."[80] Thus,
according to this dictionary frequently cited by the Supreme
Court, around the time Congress debated SMCRA's
termination provision an ordinary meaning of the phrase
"shall terminate" would denote a mandatory ending.
Consistent
with the ordinary meaning of the term "shall, " the
Supreme Court has repeatedly recognized that when Congress
uses the word "shall, " it is mandatory, and does
not give an agency authority to disregard that directive. For
example, in Kingdomware Technologies, Inc. v. United
States, the Supreme Court held that "[u]nlike the
word ‘may, ' which implies discretion, the word
‘shall' usually connotes a
requirement."[81] The Supreme Court has also observed that
"the mandatory ‘shall' . . . normally creates
an obligation impervious to judicial
discretion."[82]
Highly
persuasive to this Court on the issue of any ambiguity in
SMCRA's termination provision is the Ninth Circuit
decision of Grand Canyon Trust v. Tucson
Electric Power Co.[83] Grand Canyon Trust
involved a termination provision in a Clean Air Act
regulation that is structurally quite similar to the
termination provision in SMCRA, as it contained both a
mandatory termination provision and a permissive extension
option.
The
regulation provided:
Approval to construct [a power plant] shall become invalid if
construction is not commenced within 18 months after the
receipt of such approval, if construction is discontinued for
a period of 18 months or more, or if construction is not
completed within a reasonable time. The Administrator may
extend the 18-month time period upon a satisfactory showing
that an extension is justified.[84]
In
December 1977, Tucson Electric received a permit to construct
two power plant units. The construction of the units was
completed in 1985 and 1990. Many years later, in 2001, Grand
Canyon Trust brought a citizen enforcement action against
Tucson Electric asserting that Tucson Electric had failed to
comply with the regulation because it had not commenced
construction by the cut-off date, had discontinued
construction for longer than eighteen months, and had not
completed construction within a reasonable
time.[85]
The
Ninth Circuit agreed with Grand Canyon Trust, and held that a
"natural reading" of the phrase "shall become
invalid" provided for automatic permit invalidation,
even though the term "automatic" was not in the
statute itself:
[W]e read this language to provide that a permit
automatically becomes invalid in the enumerated circumstances
unless the administrator exercises discretionary authority to
extend the permit. On a natural reading of the language,
administrative action is only required to forestall
invalidation of a permit. No agency action is required to
invalidate a permit if construction is not timely
commenced.[86]
Like
the regulation at issue in Grand Canyon Trust, the
Court finds that "on a natural reading" of the
SMCRA termination provision, the phrase "shall
terminate" is self-executing, and "administrative
action is only required to forestall invalidation of a
permit." Defendants argue that the statute is ambiguous
because it does not include the word
"automatically" in reference to
termination.[87] But like the regulation at issue in
Grand Canyon Trust, a natural reading of 30 U.S.C.
§ 1256(c) compels a conclusion that use of the term
"automatic" is not required to effectuate the
termination by operation of law of a permit in these
circumstances.
Textually,
the statute as written is self-executing-it does not require
the regulatory authority to take any action. If Congress had
intended that the regulatory authority must or could take
action to terminate the permit in the event that mining
activities had not commenced, then the termination provision
should have read: The regulatory authority shall (or may)
terminate a permit. Other portions of SMCRA do expressly
direct the agency to affirmatively take certain actions. For
example, § 1260(a) provides "the regulatory
authority shall grant, require modification of, or deny the
application for a permit in a reasonable time set by the
regulatory authority . . . . [T]he regulatory authority shall
notify the local governmental officials . . . that a permit
has been issued . . . ."; § 1271(a)(2) provides
"the Secretary or his authorized representative shall
immediately order a cessation of surface coal mining and
reclamation operations" when, on the basis of federal
inspection, OSM determines the permittee is in violation of
SMCRA; and § 1271(a)(4) provides "the Secretary or
his authorized representative shall forthwith issue an order
to the permittee to show cause . . . ." In contrast,
that the termination statute does not mandate any action by
the agency makes clear that Congress intended permit
termination to be self-executing.
The
Federal Defendants acknowledge that the term
"shall" is generally mandatory, but observe that it
is not always the case. They cite to the Supreme Court's
decision in Gutierrez de Martinez v. Lamagno, a
Westfall Act case in which the Court held that the use of the
phrase "shall be deemed an action against the United
States" when the United States was substituted as a
party did not preclude subsequent judicial review of the
agency's scope-of-employment certification that
effectuated the substitution.[88] In Gutierrez, the
Supreme Court observed in a footnote that "[t]hough
‘shall' generally means ‘must, ' legal
writers sometimes use, or misuse, ‘shall' to mean
‘should, ' ‘will, ' or even
‘may".[89] The Supreme Court held that judicial
review of the certification decision was permitted, despite
the finality of the language "shall be deemed, "
because to construe the Westfall Act otherwise "would
oblige [the Court] to attribute to Congress two highly
anomalous commands[:] . . . that Congress, by its silence,
authorized the Attorney General's delegate to make
[certification determinations without any judicial check[, ]
[and that Congress] cast Article III judges in the role of
petty functionaries . . . stripped of capacity to evaluate
independently whether the executive's decision is
correct."[90] Here, there are none of the
separation-of-powers issues that informed the Supreme
Court's construction of the Westfall Act in
Gutierrez.
The
Federal Defendants place considerable emphasis on Sierra
Club v. Jackson, [91]which concerned whether the
administrator of the Environmental Protection Agency had a
mandatory duty to take enforcement action under a provision
of the Clean Air Act that provides in relevant part:
The Administrator shall, and a State may, take such measures,
including issuance of an order, or seeking injunctive relief,
as necessary to prevent the construction or modification ...