Mineral Policy Center v. Norton

MEMORANDUM OPINION

Plaintiffs, Mineral Policy Center, Great Basin Mine Watch, and Guardians of the Rural Environment, 1 bring this action to *32 challenge the revision of federal mining regulations promulgated by defendant, Bureau of Land Management (“BLM”), United States Department of the Interior (“Interior”), on October 30, 2001. 2 According to plaintiffs, the regulations, codified at 43 C.F.R. § 3809 (2003) (“2001 Regulations”) “substantially weaken, and in many instances eliminate, BLM’s authority to protect the public’s lands, waters, cultural and religious sites, and other resources threatened by industrial mining operations in the West.” Pis.’ Mot. for Summ. J. at 1. Plaintiffs therefore contend that the regulations run counter to BLM’s statutory duty, as set forth in its guiding statute, the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq. (2000) (“FLPMA”), to “take any action necessary to prevent unnecessary or undue degradation of the [public] lands.” 43 U.S.C. § 1732(b). Accordingly, plaintiffs ask this court to vacate and remand any portion of the 2001 Regulations not in accordance with federal law.

Before this court are the parties’ and intervenor’s cross-motions for summary judgment. 3 Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that each motion should be granted in part and denied in part.

I. BACKGROUND INFORMATION

A. Regulatory Background

1. The Mining Law

A correct resolution of the issues presented by this case requires an understanding and analysis of the pertinent legislative scheme and must begin with the General Mining Law, 30 U.S.C. §§ 21 et seq. (2000) (“Mining Law”), a law that was enacted in 1872. The Mining Law provides: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase ... by citizens of the United States ....” 30 U.S.C. § 22. The Mining Law gives claimants the right to “a unique form of property.” Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). It gives any citizen the right to enter onto federal public lands, 4 stake a claim on these lands, and obtain the exclusive right to extract the minerals thereon-all without payment to the United States and without acquiring title to the land itself. Union Oil Co. v. Smith, 249 U.S. 337, 348-49, 39 S.Ct. 308, 63 L.Ed. 635 (1919). Alternatively, the Mining Law gives a claimant the right to obtain title to the lands, by proving the location of a valuable mineral deposit on her mining claim, and paying a nominal fee *33 ($5.00 per acre for certain claims, $2.50 per acre for others). 30 U.S.C. §§ 29-30, 37.

2. The Federal Land Policy and Management Act

Much changed in this nation in the 100 years following the Mining Law’s 1872 enactment. Accordingly, in 1976, Congress enacted FLPMA to amend the Mining Law and reflect the nation’s changed view toward land and minerals. It is this law that is primarily at issue here.

FLPMA establishes standards for BLM to regulate hardrock 5 mining activities on the public lands. Such regulation is vital. BLM administers roughly one-fifth of the land mass of the United States 6 and, while the surface area of the land physically disturbed by active mining is comparatively small, the impact of such mining is not. See Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 737 (10th Cir.1982); Defs.’ Ex. A at 1 (NRC Report). Mining activity emits vast quantities of toxic chemicals, including mercury, hydrogen, cyanide gas, arsenic, and heavy metals. The emission of such chemicals affects water quality, vegetation, wildlife, soil, air purity, and cultural resources. See Northwest Mining Ass’n v. Babbitt, 5 F.Supp.2d 9, 11 (D.D.C.1998) (discussing hardrock mining’s environmental consequences); Pis.’ Ex. 2 at ¶¶ 10,11 (Decl. of Randolph); Defs.’ Ex. A at 27-30 (NRC Report). The emissions are such that the hardrock/metal mining industry was recently ranked the nation’s leading emitter of toxic pollution. Pis.’ Ex. 2 at ¶ 11 (Decl. of Randolph) (citing EPA’s 1998 Toxic Release Inventory, issued May 11, 2000).

FLPMA thus attempts to balance two vital-but often competing-interests. On one hand, FLPMA recognizes the “need for domestic sources of minerals, food, timber, and fiber from the public lands,” 43 U.S.C. § 1701(a)(12), and, on the other hand, FLPMA attempts to mitigate the devastating environmental consequences of hardrock mining, to “protect the quality of scientific, scenic, historical, ecological, environmental, air, and atmospheric, water resource, and archeological values,” id. § 1701(a)(8). Put another way, FLPMA “represents an attempt by Congress to balance the use of the public lands by interests as diverse as the lands themselves.” Watt, 696 F.2d at 738; accord Northwest Mining Ass’n, 5 F.Supp.2d at 11; see also NMA’s Reply at 12.

The heart of FLPMA amends and supersedes the Mining Law to provide: “In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b) (emphasis added); see Watt, 696 F.2d at 738 n. 2; Defs.’ Mot. for Summ. J. at 4 (recognizing that FLPMA amends the Mining Law). Also important for our purposes, FLPMA: (1) requires that the Secretary “manage the public lands under principles of multiple use and sustained yield,” 43 U.S.C. § 1732(a); (2) encourages the “harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment,” id. § 1702(c); and (3) “declares that it is the policy of the United States that ... the United States receive fair market value for the use of the public lands and their resources unless otherwise provided for by statute,” id. § 1701(a)(9).

*34 3. The 1980, 2000, and 2001 Regulations

After FLPMA was enacted in 1976, BLM commenced a rulemaking to implement it. BLM issued its proposed rules on December 6, 1976, and finalized them on November 26, 1980. See 41 Fed.Reg. 53,428 (Dec. 6, 1974); 45 Fed.Reg. 78,902 (Nov. 26, 1980). These rules, commonly known as the “1980 Regulations,” established “procedures to prevent unnecessary or undue degradation of Federal lands which may result from operations authorized by the mining laws.” 45 Fed.Reg. at 78,909-10 (Nov. 26, 1980). The 1980 Regulations defined “unnecessary or undue degradation,” commonly referred to as “UUD,” as being: (1) “surface disturbance greater than that which would normally result when an activity is being” conducted by “a prudent operator in usual, customary, and proficient operations”; (2) “failure to comply with applicable environmental protection statutes and regulations thereunder”; and (3) “[fjailure to initiate and complete reasonable mitigation measures, including reclamation of disturbed areas or creation of a nuisance.” Id. at 78,910. These rules, formerly codified at 43 C.F.R. § 3809.0-5(k) (1999), governed the mining industry for quite some time.

In the 1990s, however, Interior conducted a comprehensive review of the 1980 Regulations, and on January 6, 1997, commenced a rulemaking to amend them. 62 Fed.Reg. 16,177 (Apr. 4, 1997). During the rulemaking period, Congress intervened by passing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999. Pub.L. No. 105-277, 112 Stat. 2681 (1998). Pursuant to this Act, Congress directed the National Research Council (“NRC”) of the National Academy of Sciences 7 to review the adequacy of existing state and federal regulation of hardrock mining on federal lands, without regard to Interior’s proposed amendments. 8 Pub.L. No. 105-277, division A, § 101(e), 112 Stat. 2681 (§ 120(a) of Gen. Provisions, Dep’t of Interior) (1999). Congress also prohibited Interior from promulgating a new rule until after publication of the NRC report. Id. at § 120(d). The NRC published its report, entitled Hardrock Mining on Federal Lands, in late September 1999 (“NRC Report”). In support of this publication, later that year, Congress provided that the rule to emerge from Interior’s rulemaking process must not be “inconsistent with the recommendations contained in the National Research Council report.” Fiscal Year 2000 Consolidated Appropriations Bill, Pub.L. No. 106-113, App. C, 113 Stat. 1501, 1501 A-210 (§ 357 of tit. III Gen. Provisions) (1999); see also Dep’t of Interior & Related Agencies Appropriations Act, 2001 Pub.L. No. 106-291, 114 Stat. 922, 962 (2000).

Interior finally amended the 1980 Regulations in 2000. The 2000 Regulations, which were promulgated on November 21, *35 2000, and became effective in the final hours of the Clinton Administration, on January 20, 2001, adopted the NRC Report’s recommendations-but differed in fundamental ways from the previous 1980 Regulations. 9 65 Fed.Reg. 69,998 (Nov. 21, 2000). Most importantly, the 2000 Regulations replaced the 1980 Regulations’ UUD “prudent operator” standard with a new and more restrictive UUD standard, commonly referred to as the “substantial irreparable harm” or “SIH” standard. 65 Fed.Reg. at 70,115 (formerly codified at 43 C.F.R. § 3809.5(f) (2001)).

The “substantial irreparable harm” standard is so named because in the 2000 Regulations, for the first time, BLM stated that it would deny a plan of operations, i.e., a mining permit, 10 if the plan failed to comply with performance standards or would result in “substantial irreparable harm” to a “significant” scientific, cultural, or environmental resource value of the public lands that could not be “effectively mitigated.” 11 Id. at 70,115. Thus, under the 2000 Regulations, BLM asserted its authority to deny a mining permit, simply because a potential site was unsuitable for mining because of, for instance, the area’s environmental sensitivity or cultural importance. See id. at 70,016.

These 2000 Regulations were short lived, however. On March 23, 2001, after a change in the Administration, Interior published a Notice in the Federal Register stating its intention to amend the regulations once again. See Mining Claims Under the Gen. Mining Laws; Surface Mgmt., 66 Fed.Reg. 16,162 (Mar. 23, 2001).

In so doing, the Interior Solicitor issued a legal opinion examining FLPMA and concluding that the 2000 Regulation’s SIH standard was ultra vires, a conclusion with which the Interior Secretary agreed. Defs.’ Ex. H at 2 (Solicitor’s Opinion). The 2001 Regulations, promulgated on October 30, 2001, thus abolished the 2000 Regulations’ SIH standard. 66 Fed.Reg. at 54,837-38. What was left after the revision was a standard more akin to the “prudent operator” standard utilized by the 1980 Regulations. Compare 65 Fed. Reg. at 70,115, with 66 Fed.Reg. at 54,860. The stated reason for the elimination of the SIH standard was that Interior determined that the standard’s “implementation and enforcement ... would be difficult and potentially subjective, as well as expensive for both BLM and the industry,” and that “other means” would “protect the resources covered by the SIH standard.” Id. at 54,846, 54,838. Interior further determined that the SIH standard would precipitate a “10%-30% decline overall in minerals production.” 65 Fed.Reg. at 70,-107.

The 2001 Regulations provide:

Unnecessary or undue degradation means conditions, activities, or practices that:

(1) Fail to comply with one or more of the following: the performance standards in § 3809.420, the terms and conditions of an approved plan of opera *36 tions, operations described in a complete notice, and other Federal and state laws related to environmental protection and protection of cultural resources;

(2) Are not “reasonably incident” to prospecting, mining, or processing operations as defined in § 3715.0-5 of this chapter; or

(3) Fail to attain a stated level of protection or reclamation required by specific laws in areas such as the California Desert Conservation Area, Wild and Scenic Rivers, BLM-administered portions of the National Wilderness System, and BLM-administered National Monuments and National Conservation Areas.

43 C.F.R. § 3809.5.

The 2001 Regulations retained other provisions of the 2000 Regulations, however. Notably, for instance, Interior adopted all of the NRC’s UUD recommendations, including requiring: (1) financial guarantees to cover commensurate reclamation costs for all mining activities disturbing the public lands or resources, even those affecting areas of less than five acres, 43 C.F.R. §§ 3809.552; and (2) plans of operation for all mining activities other than those defined as “Casual use” 12 and “exploration,” even where the disturbed area is less than five acres, id. at § 3809.1-.21. These 2001 Regulations are presently at issue before this court. 13

II. RELEVANT STANDARDS

A. Summary Judgment Standard

This case is before the court on the parties’ cross motions for summary judgment. Summary judgment, pursuant to Federal Rule of Civil Procedure 56, shall be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56. Because this court’s review is based upon the administrative record, summary judgment is especially appropriate. See Bloch v. Powell, 227 F.Supp.2d 25, 30-31 (D.D.C.2002); GCI Health Care Centers, Inc. v. Thompson, 209 F.Supp.2d 63, 67-68 (D.D.C.2002); Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995) (citing Richards v. INS, 554 F.2d 1173, 1177 n. 28 (D.C.Cir.1977)).

B. Administrative Procedures Act

Challenges to agency rulemaking are reviewed under the Administrative Proce *37 dure Act (“APA”), which authorizes courts to set aside final agency actions, findings, and conclusions that are arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) (2000); see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In making this determination, the court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. While this inquiry “is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.” Id.; see also Envtl. Def. Fund v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981).

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), provides the framework that governs judicial review of agency decisions. In Chevron, the Supreme Court set out the now-familiar two-step test for reviewing an agency’s interpretation of a statute. First, the reviewing court must ask “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If so, “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.” Id. at 842-43, 104 S.Ct. 2778. If, however, the statute is silent or ambiguous with respect to the specific issue, the reviewing court must defer to the agency’s construction of the statute, so long as it is reasonable. Id. at 843, 104 S.Ct. 2778; see also Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).

Chevron and its progeny make clear that “[w]hen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.” Chevron, 467 U.S. at 866, 104 S.Ct. 2778. However, if a regulation unreasonably interprets a statute or is inconsistent with the statute under which it is promulgated, the regulation may not be sustained. See United States v. Larionoff, 431 U.S. 864, 873, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977) (stating that to be valid, regulations must be “consistent with the statute under which they are promulgated”); INS v. Chadha, 462 U.S. 919, 953 n. 16, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (providing that agency action “is always subject to check by the terms of the legislation that authorized it”); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) (“The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.”) (citations and internal quotations omitted).

In this case, plaintiffs challenge Interi- or’s decision to rescind a validly-issued rule and replace it with the 2001 Regulations. Rescission of agency rules that previously met Congress’s legislative mandate are judged by the rulemaking record. That is, “ ‘[a]n agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis.’ ” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970)); see Ctr. for Sci. in Pub. Interest v. Dep’t of Treasury, 797 F.2d 995, 999 (D.C.Cir.1986); Louisiana Pub. Serv. Comm’n v. FERC, *38 184 F.3d 892, 897 (D.C.Cir.1999) (“For the agency to reverse its position in the face of a precedent it has not persuasively distinguished is quintessentially arbitrary and capricious.”)- An agency must therefore “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).

C. Facial Challenge

In this case, moreover, plaintiffs mount a facial challenge to the 2001 Regulations. In so doing, according to Interior and NMA, plaintiffs assume an unusually “heavy burden” in prevailing on the merits. Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759,114 L.Ed.2d 233 (1991); see United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687, 699-700, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Chem. Waste Mgmt. v. U.S. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995). According to Interior and NMA, under the Supreme Court’s standard set forth in Salerno, plaintiffs must show that “ ‘no set of circumstances exists under which the regulations would be valid.’ ” NMA Mot. for Summ. J. at 19 (quoting Rust, 500 U.S. at 183, 111 S.Ct. 1759). See Salerno, 481 U.S. at 745, 107 S.Ct. 2095 (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).

Plaintiffs, meanwhile, concede that they cannot clear Salerno’s high threshold-but they challenge defendants’ claim that they must. That is, plaintiffs maintain that this action, challenging the validity of an agency regulation, is not governed by the Salerno “no set of circumstances” test.

In support of their view, plaintiffs cite a D.C. Circuit case from 1998, which states:

The Supreme Court has never adopted a “no set of circumstances” test to assess the validity of a regulation challenged as facially incompatible with governing statutory law. Indeed, the Court in at least one case, Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), upheld a facial challenge under normal Chevron standards, despite the existence of clearly valid applications of the regulation .... Our own cases confirm that the normal Chevron test is not transformed into an even more lenient “no valid applications” test just because the attack is facial. We have on several occasions invalidated agency regulations challenged as facially inconsistent with governing statutes despite the presence of easily imaginable valid applications. See, e.g., Health Ins. Ass’n of America, Inc. v. Shalala, 23 F.3d 412, 418-20 (D.C.Cir.1994).

Nat’l Mining Ass’n v. U.S. Corps of Engineers, 145 F.3d 1399, 1407-08 (D.C.Cir.1998). Corps of Engineers quite clearly supports plaintiffs’ position. The validity of that ruling is in doubt, however.

Recently, in Amfac Resorts, L.L.C. v. U.S. Department of Interior, 282 F.3d 818 (D.C.Cir.2002), rev’d on other grounds, sub nom. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, — U.S.-, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003), the D.C. Circuit recognized a potential problem with its ruling in Corps of Engineers. Specifically, the court stated that Coips of Engineers’ examination of Supreme Court precedent “apparently overlooked” a 1993 Supreme Court case, Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Amfac, 282 F.3d at 826.

*39 In Reno v. Flores, a class of alien juveniles, arrested on suspicion of being de-portable and then detained pending deportation hearings, claimed that a regulation preventing their release except to close relatives violated the Due Process Clause and conflicted with the underlying statute. The Supreme Court described the case as involving only a facial challenge to the regulation and then held as follows:

To prevail in such a facial challenge, respondents “must establish that no set of circumstances exists under which the [regulation] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). That is true as to both the constitutional challenges, see Schall v. Martin, 467 U.S. 253, 268, n. 18, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), and the statutory challenge, see [INS v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183 at 188, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991) ].

Flores, 507 U.S. at 301, 113 S.Ct. 1439. Thus, Reno seems to suggest that a plaintiff, challenging a regulation’s validity as facially incompatible with statutory law, must show that “no set of circumstances” exists under which the regulation may be sustained.

Am/ac’s recognition of the D.C. Circuit’s apparent error did not resolve the matter, however, and confusion in this Circuit remains. Cf. Nat’l Mining Ass’n v. U.S. Dep’t of Interior, 251 F.3d 1007, 1010 (D.C.Cir.2001) (comparing the application of the Salerno standard in several Supreme Court cases and a D.C. Circuit case with Corps of Engineers and leaving the question of whether “a law valid in some of its applications cannot be struck down as invalid on its face ... to another day”). Indeed, the D.C. Circuit is not alone; other courts have also wrestled with the Salerno standard, with only limited success. See, e.g., A Woman’s Choice-East Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir.2002) (providing that the Supreme Court’s inconsistent utilization of the Salerno standard puts “courts of appeals in a pickle” and; as a result, declining to rely on Salerno’s no-set-of-circumstances test); S.D. Myers, Inc. v. City of San Francisco, 253 F.3d 461, 467-68 (9th Cir.2001); United States v. Frandsen, 212 F.3d 1231, 1236 n. 3 (11th Cir.2000); Fla. League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir.1996).

Even the Supreme Court’s application of Salerno has been spotty, at best. See, e.g., Janklow v. Planned Parenthood Sioux Falls Clinic,