Kentuckians for the Commonwealth, Inc. v. Rivenburgh , 317 F.3d 425 ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KENTUCKIANS FOR THE 
COMMONWEALTH, INCORPORATED,
Plaintiff-Appellee,
v.
JOHN RIVENBURGH, Colonel, District
Engineer, U. S. Army Corps of
Engineers, Huntington District;
ROBERT B. FLOWERS, Lieutenant
General, Chief of Engineers and
Commander of the U. S. Army
Corps of Engineers; GINGER

MULLINS, Chief of the Regulatory
Branch, Operations and Readiness No. 02-1736
Division, U. S. Army Corps of
Engineers, Huntington District,
Defendants-Appellants,
and
POCAHONTAS DEVELOPMENT
CORPORATION; HORIZON NR, LLC;
KENTUCKY COAL ASSOCIATION,
Intervenors/Defendants.
INTERSTATE MINING COMPACT
COMMISSION,
Amicus Supporting Appellants.

2 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
KENTUCKIANS FOR THE 
COMMONWEALTH, INCORPORATED,
Plaintiff-Appellee,
v.
JOHN RIVENBURGH, Colonel, District
Engineer, U. S. Army Corps of
Engineers, Huntington District;
ROBERT B. FLOWERS, Lieutenant
General, Chief of Engineers and
Commander of the U. S. Army
Corps of Engineers; GINGER
MULLINS, Chief of the Regulatory
Branch, Operations and Readiness
Division, U. S. Army Corps of
Engineers, Huntington District,
Defendants,
and  No. 02-1737
POCAHONTAS DEVELOPMENT
CORPORATION; HORIZON NR, LLC;
KENTUCKY COAL ASSOCIATION,
Intervenors-Defendants-
Appellants.
INTERSTATE MINING COMPACT
COMMISSION; NATIONAL MINING
ASSOCIATION; ALABAMA COAL
ASSOCIATION; COAL OPERATORS AND
ASSOCIATES, INCORPORATED; INDIANA
COAL COUNCIL; OHIO COAL
ASSOCIATION; PENNSYLVANIA COAL
ASSOCIATION; VIRGINIA COAL
ASSOCIATION; WEST VIRGINIA COAL
ASSOCIATION; STATE OF VIRGINIA,
Amici Supporting Appellants.

KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 3
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CA-01-770-2)
Argued: December 4, 2002
Decided: January 29, 2003
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Reversed, vacated, and remanded by published opinion. Judge Nie-
meyer wrote the opinion, in which Senior Judge Hamilton joined.
Judge Luttig wrote an opinion concurring in part and dissenting in
part.
COUNSEL
ARGUED: John Thompson Stahr, Environment & Natural Resources
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C.; Robert Gale McLusky, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Appellants. James Millard Hecker,
TRIAL LAWYERS FOR PUBLIC JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Thomas L. Sansonetti, Assistant Attorney
General, Ellen Durkee, Russell Young, Steve Rusak, Mark Nitczyn-
ski, Scott Williams, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C.; Lance D. Wood, Russell Petit, U.S. ARMY
CORPS OF ENGINEERS, Washington, D.C.; Steven M. Neuge-
boren, Office of General Counsel, ENVIRONMENTAL PROTEC-
TION AGENCY, Washington, D.C.; Thomas A. Bovard, Office of
the Solicitor, DEPARTMENT OF THE INTERIOR, Washington,
D.C., for Federal Appellants. Blair M. Gardner, JACKSON &
KELLY, P.L.L.C., Charleston, West Virginia; Michael R. Shebelski,
Stephen M. Nickelsburg, HUNTON & WILLIAMS, Richmond, Vir-
ginia; Timothy J. Hagerty, Amy D. Cubbage, FROST, BROWN,
4 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
TODD, L.L.C., Louisville, Kentucky; Richard J. Bolen, HUDDLES-
TON, BOLEN, BEATTY, PORTER & COPEN, Huntington, West
Virginia; Robert D. Pollitt, Richard L. Lewis, STEPTOE & JOHN-
SON, Charleston, West Virginia, for Appellants Pocahontas, et al.
Joseph M. Lovett, APPALACHIAN CENTER FOR THE ECON-
OMY AND THE ENVIRONMENT, Lewisburg, West Virginia; Joe
F. Childers, Lexington, Kentucky, for Appellee. Christopher B.
Power, DINSMORE & SHOHL, L.L.P., Charleston, West Virginia;
Gregory E. Conrad, INTERSTATE MINING COMPACT COMMIS-
SION, Herndon, Virginia, for Amicus Curiae Commission. Harold P.
Quinn, Jr., NATIONAL MINING ASSOCIATION, Washington,
D.C., for Amici Curiae Association, et al. Jerry W. Kilgore, Attorney
General of Virginia, William H. Hurd, State Solicitor, Judith Wil-
liams Jagdmann, Deputy Attorney General, Maureen R. Matsen, Dep-
uty State Solicitor, William E. Thro, Deputy State Solicitor, Roger L.
Chaffe, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Amicus Curiae
Commonwealth.
OPINION
NIEMEYER, Circuit Judge:
This appeal presents the issue of whether the U.S. Army Corps of
Engineers has authority under the Clean Water Act and under its now-
superseded 1977 regulation implementing the Act to issue permits for
valley fills in connection with mountaintop coal mining. It does not
present the question of whether mountaintop coal mining is useful,
desirable, or wise.
Kentuckians for the Commonwealth, Inc., a nonprofit corporation
formed to promote "social justice and quality of life for all Kentucki-
ans," commenced this action for declaratory and injunctive relief to
declare illegal the Corps’ interpretation of the Clean Water Act and
to require the Corps to revoke the permit that it issued to Martin
County Coal Corporation under § 404 of the Act, authorizing Martin
Coal to place excess overburden from one of its coal mining projects
into 27 valleys in Martin County, Kentucky.
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 5
On cross-motions for summary judgment, the district court "found
and concluded" that "fill material" as used in § 404 referred only to
"material deposited for some beneficial primary purpose," not for
waste disposal, and therefore that the Corps’ "approval of waste dis-
posal as fill material under § 404 [of the Clean Water Act] [was] ultra
vires" and "beyond the authority" of the Corps. Because Martin
Coal’s assignee of the permit, Beech Fork Processing, Inc., proposed
"to re-engineer [the] existing mine plan to place no spoil in waters of
the United States without a constructive primary purpose," the court
found there to be no "imminent probable irreparable injury" to Ken-
tuckians for the Commonwealth. The court determined that in the
absence of injury, Kentuckians’ application for injunctive relief with
regard to the Martin Coal authorization "must be denied." But on the
basis of its conclusion that the Corps acts ultra vires whenever it
issues permits for valley fills without a beneficial primary purpose,
the district court entered a purely prospective permanent injunction
against the Corps. This injunction prohibits the Corps from "issuing
any further § 404 permits within the Huntington District [covering
portions of five states] that have no primary purpose or use but the
disposal of waste," in particular, any permit to create valley fills with
the spoil of mountaintop coal mining for the sole purpose of waste
disposal.
Because we conclude that the Corps’ practice of issuing § 404 per-
mits, including the permit to Martin Coal, to create valley fills with
the spoil of mountaintop coal mining is not ultra vires under the
Clean Water Act and that the injunction issued by the district court
was overbroad, we reverse the court’s declaratory judgment; we
vacate its injunction and the memorandums and orders of May 8 and
June 17, 2002; and we remand for further proceedings not inconsis-
tent with this opinion.
I
Martin County Coal Corporation ("Martin Coal"), having obtained
a mining permit from the Commonwealth of Kentucky in November
1999 to undertake a surface mining project in Martin County, Ken-
tucky, applied to the U.S. Army Corps of Engineers ("the Corps") for
authorization under § 404 of the Clean Water Act and under the
Corps’ Nationwide Permit 21 ("NWP 21") "to construct hollow fills
6 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
and sediment ponds in waters of the United States" in connection with
the proposed mining project. On June 20, 2000, the Corps "autho-
rized" Martin Coal’s project, permitting it to place mining-operations
"spoil" from "excess overburden" in 27 valleys, filling about 6.3 miles
of streams. "Overburden" is the soil and rock that overlies a coal
seam, and overburden that is excavated and removed is "spoil." In
connection with surface mining operations in mountains where the
mine operator must return the mountains to their approximate original
contour, the spoil is placed temporarily in valleys while the coal is
removed from the seam and then returned to the mining location.
However, because spoil takes up more space than did the original
overburden, all surface mining creates excess spoil that must be
placed somewhere. The permit in this case authorized Martin Coal to
create 27 valley fills with the excess spoil, which in turn would bury
some 6.3 miles of streams at the heads of the valleys.
The Corps’ exercise of authority under NWP 21 to permit the cre-
ation of valley fills in connection with mining operations was consis-
tent with its past practices and with the understanding of the Corps
and the EPA as to how the Clean Water Act divides responsibility for
its administration. While court cases have, over the years, evinced
confusion over that division based on the agencies’ differing
approaches to defining "fill material" in their regulations, see, e.g.,
Resource Investments, Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d
1162 (9th Cir. 1998); Avoyelles Sportsmen’s League v. Marsh, 715
F.2d 897 (5th Cir. 1983), the Corps and the EPA have in fact exer-
cised their authority consistently in interpreting the Clean Water Act
to give the Corps authority to issue permits for the creation of valley
fills in connection with surface coal mining activities.
At the time that the Corps issued its authorization to Martin Coal
in this case, it had already published notice, together with the EPA,
of their intent to amend their regulations to resolve ambiguities in
both agencies’ regulatory definitions of "fill material" and to clarify
the division of authority between the two agencies. As the Corps and
the EPA stated in the public notice of the intended amendments,
issued on April 20, 2000:
With regard to proposed discharges of coal mining overbur-
den, we believe that the placement of such material into
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 7
waters of the U.S. has the effect of fill and therefore, should
be regulated under CWA section 404. This approach is con-
sistent with existing practice and the existing EPA definition
of the term "fill material." In Appalachia in particular, such
discharges typically result in the placement of rock and
other material in the heads of valleys, with a sedimentation
pond located downstream of this "valley fill." This has
required authorization under CWA section 404 for the dis-
charges of fill material into waters of the U.S., including the
overburden and coal refuse, as well as the berms, or dams,
associated with the sedimentation ponds. The effect of these
discharges is to replace portions of a water body with dry
land. Therefore, today’s proposal makes clear that such
material is to be regulated under CWA section 404.
65 Fed. Reg. 21,292, 21,295 (Apr. 20, 2000). This public notice also
pointed out that the EPA would, in connection with coal mining activ-
ities, continue to regulate "effluent discharged into waters of the U.S.
from sedimentation ponds," pursuant to § 402 of the Clean Water Act.
Id. at 21,296.
In August 2001, Kentuckians for the Commonwealth, Inc.
("Kentuckians"), commenced this action against the Corps under the
Administrative Procedure Act ("APA"), challenging the Corps’ action
in issuing the June 20, 2000 permit to Martin Coal to create 27 valley
fills and to bury 6.3 miles of streams. Kentuckians, a nonprofit corpo-
ration organized in Kentucky and having a membership of approxi-
mately 3,000 members, alleged that it was injured by the issuance of
the permit to Martin Coal because its members "visit, live near, drive
by and/or fly over areas of the state that are visibly affected by sur-
face coal mining activities, including the area to be affected by [Mar-
tin Coal’s] proposed mining operations in Martin County, Kentucky."
In support of their request for declaratory and injunctive relief, Ken-
tuckians alleged that the Corps had violated § 404 of the Clean Water
Act as well as its own regulations and had "acted in a manner that is
arbitrary, capricious, an abuse of discretion, and otherwise contrary to
law, in violation of the APA, 5 U.S.C. § 706(2)." Kentuckians asked
the court to "[d]eclare that Defendants’ June 20, 2000 decision grant-
ing authorization under NWP 21 to [Martin Coal] is contrary to Sec-
tion 404 of the CWA and its implementing regulations . . . in violation
8 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
of the APA," and to "[i]ssue an order requiring Defendants to revoke
[Martin Coal’s] authorization under NWP 21 or, in the alternative, to
suspend that authorization pending completion of EPA’s Section
404(c) proceeding and/or unless and until Defendants comply with
their obligations herein under the APA, CWA, and NEPA [National
Environmental Policy Act]."
Some months later, after the district court denied the Corps’ motion
to transfer the case to the Eastern District of Kentucky, it permitted
the Kentucky Coal Association, a mining industry trade association,
and the Pocahontas Development Corporation, an owner and lessor to
Martin Coal of surface and mineral rights, to intervene as defendants
in the action. In a later order, the court also granted the motion of AEI
Resources, Inc. to intervene as a defendant. Kentuckians then filed a
motion for summary judgment, requesting a permanent injunction on
Count I of the complaint, and the Corps filed a cross-motion for sum-
mary judgment with respect to the same count. Kentuckians argued
that under the Clean Water Act and the Corps’ regulations, excess
overburden placed in the valleys, creating valley fills, was not "fill
material" as used in § 404 of the Act. Kentuckians relied primarily on
the Corps’ 1977 regulation, 33 C.F.R. § 323.2(e) (2001), to argue that
valley fills were not "fill material" as defined by the regulation but
"waste" as excluded from the Corps’ regulation. The Corps’ definition
of "fill material" was narrower than the EPA’s definition, which con-
tained no exclusion for "waste." Kentuckians maintained, therefore,
that valley fills created from coal mining activities could only be reg-
ulated under § 402 of the Clean Water Act as administered by the
EPA, not under § 404 as administered by the Corps. In its cross-
motion, the Corps acknowledged that the differing approaches in
defining "fill material" employed by EPA and the Corps in their regu-
lations had created some uncertainty about their interpretation of the
Clean Water Act but that the consistent practice of both agencies was
to interpret the Clean Water Act to authorize the Corps to regulate
valley fills in connection with coal mining activities.
On May 3, 2002, while the cross-motions for summary judgment
were pending, the Corps and the EPA signed their final joint rule,
clarifying the definition of "fill material" to make it both uniform and
consistent with their prior practices. The "New Rule," 33 C.F.R.
§ 323.2 (2002), used an "effects-based" test, defining "fill material"
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 9
in § 404 of the Act as any material placed in the waters of the United
States that has "the effect of . . . [r]eplacing any portion of a water
of the United States with dry land or [c]hanging the bottom eleva-
tion." Id. § 323.2(e)(1). The New Rule went on to provide that exam-
ples of such fill subject to regulation by the Corps included
"overburden from mining or other excavation activities," but it also
stated that "trash or garbage" was not "fill material." Id. § 323.2(e)(2),
(3).
A few days later, on May 8, 2002, the district court ruled on the
pending cross-motions for summary judgment, concluding that the
efforts of the Corps and the EPA, as well as their past applications of
§ 404, were inconsistent with the Clean Water Act. Kentuckians for
the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927 (S.D. W.
Va. 2002). The court declared that "fill material" as used in § 404 of
the Clean Water Act "refers to material deposited for some beneficial
primary purpose: for construction work, infrastructure, improvement
and development in waters of the United States, not waste material
discharged solely to dispose of waste." Accordingly, the court
declared that the Corps’ "approval of a waste disposal as fill material
under § 404 is ultra vires, that is, beyond the authority of either [the
Corps or the EPA]." The court’s order provided:
the Court FINDS and CONCLUDES § 404 fills may not be
permitted solely to dispose of waste. Plaintiff’s motion [for
summary judgment] is GRANTED. The motions of the
Corps Defendants and Defendant-Intervenors are DENIED.
Although the court refused to grant Kentuckians’ motion for an
injunction requiring the Corps to revoke its permit to Martin Coal
because Martin Coal’s assignee was prepared to reengineer the proj-
ect so as not to create valley fills of waste material,1 it issued a perma-
1
In a letter to the Corps dated June 3, 2002, Beech Fork wrote:
We are filing this new [application] for a new NWP 21 authori-
zation in response to Judge Haden’s recent decision, because if
our existing NWP 21 authorization is enjoined, Beech Fork must
have an alternative plan in place to be able to continue to operate
its mine. In this [application], Beech Fork proposes not to place
10 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
nent injunction against the Corps prohibiting it from issuing "any
further § 404 permits that have no primary purpose or use but the dis-
posal of waste." As the court restated its order, it enjoined the issu-
ance of "mountaintop removal overburden valley fill permits solely
for waste disposal under § 404." The court did not, however, strike
down the New Rule, as no party had challenged it. But it declared the
New Rule to be ultra vires:
These new agency definitions set forth in the final rule are
fundamentally inconsistent with the CWA, its history, pre-
decessor statutes, longstanding regulations, and companion
statutes. Under the guise of regulatory harmony and consis-
tency, the agencies have taken an ambiguous interpretation,
that of the EPA, seized the unsupportable horn of the
ambiguity, and now propose to make their original error and
administrative practice the law.
spoil in jurisdictional waters of the United States, with the
exception of ponds.
***
Beech Fork believes that if it can continue to operate, it will be
able to use adjacent old mining areas to re-engineer its existing
mine plan to comply with Judge Haden’s interpretation of the
law. To this end, Beech Fork obtained an old Penn Coal permit
and property, which sits in the middle of the Beech Fork reserve.
This old Penn Coal site provides substantial acreage for spoil
disposal out of the waters of the United States.
***
I would like to emphasize that Beech Fork is not withdrawing its
original [application] filed on April 19, 2000 by Martin County
Coal. Indeed, Beech Fork expressly does not surrender its cur-
rent authorization. Beech Fork expressly wishes to be informed
before any decision is made concerning the original [application]
and NWP 21 with regards to this additional submittal. Obtaining
adjacent property for storage disposal, re-engineering the mine,
and dealing with the changes in law occasioned by the Judge
Haden’s recent decision is costing Beech Fork substantial sums
of money every day and making it very difficult to operate.
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 11
***
Pointedly, the [new] rule is intended to and does allow the
massive filling of Appalachian streams with mine waste
under auspices of the CWA.
***
The agencies’ explanations that regulatory harmony and
consistency will result and regulatory practice be maintained
are disingenuous and incomplete. The Court does not rule in
a vacuum. It is aware of the immense political and economic
pressures on the agencies to continue to approve mountain-
top removal coal mining valley fills for waste disposal, and
to give assurances that future legal challenges to the practice
will fail.
***
The agencies’ new final rules are inconsistent with the statu-
tory scheme. Thus, the purported rulemaking is ultra vires:
it exceeds the agencies’ statutory authority granted by the
CWA.
Following the court’s issuance of its memorandum and order on
May 8, 2002, the Corps filed a motion for clarification of whether the
injunction issued was of nationwide application and whether the dis-
trict court’s declarations invalidated the New Rule, 33 C.F.R. § 323.2(2002). In its response to the motion, Kentuckians filed a motion for
further injunctive relief to require the Corps to "revoke [its] authoriza-
tion to Martin County Coal Corporation." The district court issued a
revised memorandum and order dated June 17, 2002, in which it
stated that the injunction did not have nationwide application; rather,
it prohibited the Corps from issuing § 404 permits "from their ordi-
nary place of business, the Huntington District," which the court
stated would have "substantial national impact" because 97% of
"stream length affected by valley fills in the nation" was approved in
the Huntington District in 2000. Kentuckians for the Commonwealth,
Inc. v. Rivenburgh, 206 F. Supp. 2d 782 (S.D. W. Va. 2002). The
12 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
court also stated that the injunction did not enjoin the New Rule, 33
C.F.R. § 323.2 (2002). The court repeated, however, its declaration
that the New Rule was "inconsistent with the statutory scheme, and
therefore ultra vires." Finally, the court restated its injunction as mod-
ified:
The Corps Defendants are ENJOINED from issuing any fur-
ther § 404 permits within the Huntington District that have
no primary purpose or use but the disposal of waste, except
dredged spoil disposal. In particular, issuance of mountain-
top removal overburden valley fill permits solely for waste
disposal under § 404 is ENJOINED.
On appeal from the district court’s memorandums and orders of
May 8 and June 17, 2002, the Corps contends (1) that it has jurisdic-
tion under § 404(a) of the Clean Water Act to regulate as a discharge
of "fill material" the disposal into the waters of the United States of
excess spoil resulting from the process of surface coal mining, i.e.,
valley fills, and (2) that, in any event, the district court’s injunction
was overbroad in enjoining the issuance of any further § 404(a) per-
mits throughout portions of Ohio, West Virginia, Kentucky, Virginia,
and North Carolina, where most of the Nation’s mountaintop coal
mining is conducted. The Intervenors contend that the EPA and the
Corps’ interpretation of "fill material" under the Clean Water Act was
a reasonable one and that the district court erred in substituting its
own interpretation for that of the agencies authorized to implement
the Act. The Intervenors also contend that the injunction was over-
broad, enjoining conduct "that was not the subject of this lawsuit."
II
We address first the Corps’ and the Intervenors’ challenge to the
breadth of the district court’s injunction in the context of this action.
The Corps contends that Kentuckians brought this action under the
APA, 5 U.S.C. § 706(2)(A), challenging a specific agency action as
"arbitrary, capricious, an abuse of discretion, and otherwise not in
accordance with law" — specifically, the Corps’ issuance of a permit
to Martin Coal. Because this is an APA action challenging a specific
agency action, the Corps argues that the injunction issued against it
for future permits in a five-state area "far exceeds the relief necessary
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 13
to afford Kentuckians full relief in this action." The Corps also argues
that the injunction "is contrary to fundamental principles of standing,
as Kentuckians has neither alleged nor demonstrated injury-in-fact as
to all mining sites in the Huntington District." In a footnote to their
brief, the Intervenors join in the Corps’ arguments relating to the
scope of the injunction.
Kentuckians contends that because it "has Article III standing as to
one mine, it can seek relief against the Corps’ Huntington District
Office to enjoin the same practice at other mines in the same Corps
District." It argues that the scope of injunctive relief should be deter-
mined by the scope of violation, and in this case the scope involves
the Corps’ ongoing ultra vires actions.
In Count I of the complaint, on which the district court entered
summary judgment, the injunctive relief requested by Kentuckians
was for the court to order the "Defendants to revoke [Martin Coal’s]
authorization under NWP 21" or alternatively to suspend authoriza-
tion pending an EPA review under § 404(c) of the Clean Water Act.
The district court did not consider the alternative relief.
In support of the requested relief, Kentuckians submitted affidavits
of three members, alleging injury only from the issuance of the permit
to Martin Coal. Typically these affidavits state that:
Highway 3 in Martin County, along Little Beech Fork, adja-
cent to the mining operation proposed by Martin County
Coal Corporation in DSMRE Permit No. 880-0135, is a
major route into Martin County from Prestonburg, Lexing-
ton and points beyond and as a resident of Martin County,
I drive this route frequently. . . . During these drives, I enjoy
the undisturbed view of the area proposed to be affected by
the mining operation at issue in this case. I enjoy viewing
this area in its forested appearance and I would be offended
by the deforestation and scarring of the mountains caused by
excavation associated with this mining operation as well as
by the creation of valley fills and sediment ponds that will
occur if this area is stripmined pursuant to the permit at
issue in this case.
14 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
The affidavits also state typically that the affiants plan to continue
driving Highway 3 and that their aesthetic sensibilities will be
offended by the proposed mine site. None of the members alleged
personal injury resulting from all future permit grants within the five-
state area that comprises the Corps’ Huntington District, and almost
certainly none could have done so. Kentuckians connected their
claimed injury to the illegality of the Martin Coal permit, alleging that
the defendants’ issuance of the permit to Martin Coal "violated the
Corps’ regulations and section 404 of the Clean Water Act, 33 U.S.C.
§ 1344."
In acting on Kentuckians’ request, the district court refused to issue
the injunction commanding the Corps to revoke the permit issued to
Martin Coal. On this issue, the court stated:
Beech Fork recently filed [an application] with the Corps
that proposes to re-engineer its existing mine plan to place
no spoil in waters of the United States without a construc-
tive primary purpose. The initial question a court must ask
on an injunction application is whether there is imminent
probable irreparable injury to Plaintiff without the injunc-
tion and likely harm to the defendant with a decree. [citation
omitted] In the absence of injury, the application must be
denied. Assuming Beech Fork adheres to its position in the
new [application], an injunction is unnecessary. Accord-
ingly, the court DENIES Plaintiff’s motion without preju-
dice to raise it again if altered circumstances necessitate
such action.
Nonetheless, based on the court’s "findings and conclusions" that
§ 404 of the Clean Water Act authorizes the Corps to issue permits
only for discharge of fills for which some beneficial primary purpose
exists and not for waste, the district court issued an injunction against
the Corps prohibiting it from issuing any future permits in the Hun-
tington District absent a finding of beneficial primary purpose. Its
injunction reads:
The Corps Defendants are ENJOINED from issuing any fur-
ther § 404 permits within the Huntington District that have
no primary purpose or use but the disposal of waste, except
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 15
dredged spoil disposal. In particular, issuance of mountain-
top removal overburden valley fill permits solely for waste
disposal under § 404 is ENJOINED.
It is well established that "injunctive relief should be no more bur-
densome to the defendant than necessary to provide complete relief
to the plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
We have explained further that "[a]n injunction should be carefully
addressed to the circumstances of the case." Virginia Soc’y for
Human Life v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (citing Hayes
v. North State Law Enforcement Officers Ass’n, 10 F.3d 207, 217 (4th
Cir. 1993) ("Although injunctive relief should be designed to grant
the full relief needed to remedy the injury to the prevailing party, it
should not go beyond the extent of the established violation")).
We conclude that the injunction that the district court issued was
far broader than necessary to provide Kentuckians complete relief.
The members of Kentuckians are entirely within the Commonwealth
of Kentucky and its members alleged injury only in connection with
the Martin Coal site for which the permit in this case issued. But, as
the district court itself explained, the Huntington District covers por-
tions of five states, and the permits for valley fills in connection with
coal mining activities issued by the Huntington District in 2000 alone
constituted 97% "of stream length affected by valley fills in the
nation." The court acknowledged that "the injunction necessarily will
have substantial national impact." It is thus readily apparent that the
injury anticipated from future permits is far broader than the scope of
injury for which Kentuckians sought relief.
Because we conclude that the injunction issued by the district court
was broader in scope than that "necessary to provide complete relief
to the plaintiff" and that the injunction did not carefully address only
the circumstances of the case, we find it overbroad. Accordingly, we
vacate the injunction issued by the district court.
III
The Corps and the Intervenors also contend that the district court
erred as a matter of law in entering summary judgment (1) declaring
that "§ 404 fills may not be permitted solely to dispose of waste" and
16 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
that "approval of § 404 permits solely for waste disposal are contrary
to law and ultra vires" and (2) supporting its injunction with that
holding.
A
Before reviewing this issue, it is necessary to separate the district
court’s holdings that form a part of its judgment from its dicta. In
doing this, we begin with the complaint and the parties’ cross-motions
for summary judgment on Count I of the complaint to determine what
issues were fairly presented to the district court for disposition.
The complaint’s introduction states that the action was commenced
to review "a decision" of the Corps "to authorize [Martin Coal] . . .
to fill over six miles of streams in Martin County, Kentucky with
waste rock and dirt from surface coal mining activities." And the
complaint’s general allegations assert that the disposal of waste fill
material is contrary to § 404(a) of the Clean Water Act and regulation
33 C.F.R. § 323.2(e) promulgated under it (the "1977 Regulation").
The 1977 Regulation states that § 404 does not authorize the Corps
to permit discharges of fill material "primarily to dispose of waste, as
that activity is regulated under section 402 of the Clean Water Act,"
which is managed by the EPA, not the Corps. Count I of the com-
plaint then asserts specifically that "[t]he primary purpose of valley
fills associated with surface mining activities is to dispose of waste";
that such fills are subject to regulation under § 402, not § 404, of the
Clean Water Act; that the Corps issued a permit to Martin Coal under
§ 404; and that:
As a result, Defendants have violated the Corps’ regulations
and section 404 of the Clean Water Act, 33 U.S.C. § 1344,
and have acted in a manner that is arbitrary, capricious, an
abuse of discretion, and otherwise contrary to law, in viola-
tion of the APA, 5 U.S.C. § 706(2).
The relief sought for Count I is (1) a declaration that the Corps’ deci-
sion to authorize a permit for Martin Coal is "contrary to Section 404
of the CWA and its implementing regulations, and is arbitrary, capri-
cious, and an abuse of discretion, and otherwise not in accordance
with law, in violation of the APA, 5 U.S.C. § 706(2)(A)," and (2) an
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 17
injunction requiring the Corps "to revoke" the authorization issued to
Martin Coal.
The parties’ cross-motions for summary judgment were limited to
the allegations of Count I and the relief requested in connection with
it. The remaining counts of the complaint were not addressed by the
motions nor by the district court’s order granting a partial summary
judgment on Count I.
Addressing Kentuckians’ request for declaratory relief, the district
court summarized the request as follows:
[Kentuckians] asks the Court to find and conclude the Corps
has violated § 404 of the CWA, 33 U.S.C. § 1344, and the
Administrative Procedures Act (APA), 5 U.S.C. § 706 (2),
because its actions are arbitrary, capricious, an abuse of dis-
cretion, and otherwise contrary to law.
(Emphasis added). And summarizing its analysis and holding on this
issue, the court stated:
Section 404 was enacted for the purpose and with the effect
of allowing disposal of only one type of pollutant or waste:
dredged spoil. Permits for disposal of all other pollutants
into national waters are to issue under CWA § 402. "Fill
material," as regulated under § 404, refers to material depos-
ited for some beneficial primary purpose: for construction
work, infrastructure, improvement and development in
waters of the United States, not waste material discharged
solely to dispose of waste. Accordingly, approval of waste
disposal as fill material under § 404 is ultra vires, that is,
beyond the authority of either administrative agency, the
Corps or Environmental Protection Agency (EPA). To
approve disposal of waste other than dredged spoil, in par-
ticular mountaintop removal overburden, in waters of the
United States under § 404 dredge and fill regulations
rewrites the Clean Water Act. Such rewriting exceeds the
authority of administrative agencies and requires an act of
Congress.
18 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
The court also concluded that "[p]ast § 404 permit approvals were
issued in express disregard of the Corps’ own regulations [the 1977
Regulation]" and were therefore "illegal." The partial summary judg-
ment issued by the district court on May 8, 2002, pursuant to its con-
clusions provides:
Accordingly, the court FINDS and CONCLUDES § 404
fills may not be permitted solely to dispose of waste. Plain-
tiff’s motion is GRANTED. The motions of the Corps
Defendants and Defendant-Intervenors are DENIED. The
Corps Defendants are ENJOINED from issuing any further
§ 404 permits that have no primary purpose or use but the
disposal of waste. In particular, issuance of mountaintop
removal overburden valley fill permits solely for waste dis-
posal under § 404 is ENJOINED.
In short, the court’s order (1) declares permits authorizing fills of
excess overburden to be illegal in the absence of a beneficial primary
purpose and (2) enjoins all future permits that authorize fills having
no primary purpose or use but the disposal of waste.
To support its declaration that § 404 fills may not be permitted
solely to dispose of waste, the court interpreted § 404 and the 1977
Regulation to have a consistent meaning. And to support its injunc-
tion, the court gratuitously addressed the New Rule, 33 C.F.R.
§ 323.2 (2002), stating:
The agencies’ attempt to legalize their long-standing illegal
regulatory practice must fail. The practice is contrary to law,
not because the agencies said so, although their longstand-
ing regulations correctly forbade it. The regulators’ practice
is illegal because it is contrary to the spirit and the letter of
the Clean Water Act.
Based on this conclusion, the district court prohibited the Corps from
issuing future permits, even though they would be justified by the
New Rule.
When the Corps filed a motion for clarification of the permanent
injunction and Kentuckians renewed its request for the particularized
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 19
injunction involving Martin Coal, the district court modified the
injunctive relief on June 17, 2002, but in doing so, it did not alter or
modify the declaratory judgment entered on May 8, 2002.
While we have already indicated that we are vacating this injunc-
tion for overbreadth, it is also subject to being vacated as reaching
beyond the issues presented to the district court for resolution. None
of the parties sought a declaration that the New Rule was illegal or
inconsistent with the Clean Water Act. Indeed, the New Rule was not
promulgated until May 3, 2002, a few days before the district court
issued its injunction on May 8, 2002.
Thus, we are fairly presented for review the district court’s declara-
tion that valley fills authorized by the Corps in its permit to Martin
Coal are contrary to § 404 and to the 1977 Regulation, as the district
court interpreted that rule. We are not presented with the question of
whether the New Rule is inconsistent with § 404. Because the district
court reached beyond the issues presented to it in deciding that issue,
we vacate its ruling declaring the New Rule to be inconsistent with
§ 404 of the Clean Water Act.
The judgment of the district court, as contained in its two orders
of May 8 and June 17, 2002, and the positions of the parties thus
bring us to the single question whether § 404 of the Clean Water Act,
in providing that the Corps "may issue permits . . . for the discharge
of dredged or fill material into navigable waters," authorizes the
Corps to issue permits for the creation of valley fills in connection
with coal mining activities, when the valley fills serve no purpose
other than to dispose of excess overburden from the mining activity.
This question is presented particularly in Kentuckians’ challenge of
the Corps’ action in issuing the permit to Martin Coal.
B
When reviewing a particular agency action challenged under
§ 706(2) of the APA, "[t]he court is first required to decide whether
the [agency] acted within the scope of [its] authority." Citizens to Pre-
serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The first
step in this analysis is an examination of the statute providing
20 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
authority for the agency to act. As the Supreme Court explained in
NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins.
Co., 513 U.S. 251, 257 (1995):
[W]hen we confront an expert administrator’s statutory
exposition, we inquire first whether "the intent of Congress
is clear" as to "the precise question at issue." Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984). If so, "that is the end of the matter"
Ibid. But "if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of
the statute." Id. at 843. If the administrator’s reading fills a
gap or defines a term in a way that is reasonable in light of
the legislature’s revealed design, we give the administrator’s
judgment "controlling weight." Id. at 844.
This analytical approach applies not only when a regulation is
directly challenged, as in Chevron, but also when a particular agency
action is challenged, as in NationsBank.
Moreover, when an agency acts pursuant to a regulation, a review-
ing court must, if there is any dispute about the meaning of the regula-
tion, interpret the meaning of the regulation to determine whether the
agency’s action is consistent with the regulation. The reviewing court
does not have much leeway in undertaking this interpretation, how-
ever, because the agency is entitled to interpret its own regulation and
the agency’s interpretation is "controlling unless plainly erroneous or
inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461
(1997) (internal quotation marks and citation omitted). This require-
ment of binding deference to agency interpretations of their own regu-
lations, unless "plainly erroneous or inconsistent with the regulation,"
is known as Seminole Rock deference, having first been articulated in
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
Finally, if there is any question whether an agency action taken
pursuant to a regulation exceeds the agency’s statutory authority, the
statutory inquiry under Chevron step one (whether the intent of Con-
gress is clear) must take place prior to interpreting the agency’s own
regulation. This ordering is a function of the Chevron test itself: If
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 21
Congress has spoken clearly to the issue, then the regulation is inap-
plicable. See Chevron U.S.A. Inc. v. Echazabal, 122 S. Ct. 2045(2002) (applying an analytical approach by which the validity of an
action taken in reliance a regulation depends, in the first instance, on
whether the regulation itself exceeds the issuing agency’s statutory
authority); see also John F. Manning, Constitutional Structure and
Judicial Deference to Agency Interpretations of Agency Rules, 96
Colum. L. Rev. 612, 627 n. 78 (1996) ("It is important to note that
because a regulation must be consistent with the statute it implements,
any interpretation of a regulation naturally must accord with the stat-
ute as well. . . . [T]o get to Seminole Rock deference, a court must first
address the straightforward Chevron question whether an agency reg-
ulation, as interpreted, violates the statute. Seminole Rock addresses
the further question whether the agency’s interpretation is consistent
with the regulation").
C
In this case the Corps contends that "[t]he district court erred as a
matter of law in holding that the Corps lacks authority under CWA
Section 404 to regulate as ‘fill material’ the discharge of excess spoil
from surface coal mining into waters of the United States."2 It notes
2
In asserting that it is not only unnecessary but also "treacherous" to
reach the statutory issue raised in the complaint and decided upon by the
district court, our concurring colleague apparently assumes that the
agency acted within the scope of its statutory authority. Because the
plaintiffs alleged, and the district court decided, that the Corps acted
beyond the scope of its statutory authority, we first address this issue.
Count I of Kentuckians’ complaint alleged that "Defendants have vio-
lated the Corps’ regulation and section 404 of the Clean Water Act"
(emphasis added). The district court decided that "[p]ast § 404 permit
approvals were issued in express disregard of the Corps’ own regulations
and the CWA." Moreover, the very first sentence of the concurring opin-
ion states that Kentuckians claimed "that the Corps violated its 1977 reg-
ulations and section 404 of the Clean Water Act in issuing" the Martin
Coal permit (emphasis added). Yet based on statements made by counsel
at oral argument rather than on the issues raised in the complaint,
decided by the district court, and presented on appeal, our colleague
asserts that "there was no need for the district court (and there is likewise
22 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
that Congress did not define "fill material" and left that to the agen-
cies charged with administering § 404. It concludes that the practice
followed by it and by the EPA over the years is "a permissible one
entitled to deference" under Chevron. It claims that the new dual-
agency construction in the New Rule reflects the agencies’ past prac-
tices and "falls easily within the most obvious reading of the term ‘fill
material,’" and is consistent with the statutory scheme and purposes
of the Clean Water Act.
The Intervenors similarly conclude that the term "fill material" was
not defined by Congress in the Clean Water Act and that the district
court erred "in not deferring to EPA’s and the Corps’ ‘effects’ defini-
tion of ‘fill material,’" which is a reasonable construction of the statu-
tory term.
Kentuckians contends that "[t]he district court correctly held that
the Corps lacks authority under § 404 of the Clean Water Act to allow
the filling of waters of the United States solely for waste disposal,"
but Kentuckians asserts that it "reaches that conclusion on grounds
that differ, in part, from those relied on by the district court."
Although Kentuckians agrees that "fill material" has not been defined
in the Clean Water Act, it argues that Congress’ intent is clear from
the context of the Clean Water Act and that Congress did not mean
for any provision of the Act to permit the Corps to "evade the water
quality standards" mandated by the Act. Kentuckians asserts that to
construe "fill material" in any way other than that given by the district
court would violate the clear intent of the Clean Water Act "to restore
and maintain the chemical, physical and biological integrity of the
nation’s waters." 33 U.S.C. § 1251(a). Kentuckians contends alterna-
tively that even if the Act is ambiguous, the Corps’ interpretation is
unreasonable and impermissible because "[e]vasion of a statute’s core
mandate and purpose can scarcely be considered a ‘reasonable’ inter-
no need for this court) to interpret the Clean Water Act . . . ." Compare
Thomasson v. Perry, 80 F.3d 915, 935 (4th Cir. 1996) (Luttig, J., concur-
ring) (acknowledging the position of both parties that "the question of the
validity of the regulation is not before us," and asserting nonetheless that
"I would simply invalidate the Administration’s regulation as in excess
of its statutory authority").
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 23
pretation." Finally, Kentuckians asserts that the Corps’ interpretation
is internally inconsistent because the Corps’ construction gives it
authority over "mining waste, but excludes trash and garbage." It
argues that such a construction produces an absurd result because the
burial of a stream by mining waste is "much more devastating" than
degradation of water by trash or garbage.
As with any issue of statutory interpretation, we begin with the lan-
guage of the statute. If congressional intent is clear from application
of "traditional tools of statutory construction," Brown & Williamson
Tobacco Corp. v. FDA, 153 F.3d 155, 161 (4th Cir. 1998), aff’d, 529
U.S. 120 (2000), "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," Chevron, 467 U.S. at 842-43. "[I]f the statute is silent
or ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible con-
struction of the statute." Id. at 843.
Because the Clean Water Act does not define "fill material," nor
does it suggest on its face the limitation of "fill material" found by the
district court, the statute is silent on the issue before us, and such
silence "normally creates ambiguity. It does not resolve it." Barnhart
v. Walton, 122 S. Ct. 1265, 1270 (2002); see also Piney Run Preser-
vation Ass’n v. County Comm’rs, 268 F.3d 255, 267 (4th Cir. 2001)
(holding that while a Clean Water Act permit provision "makes clear
that compliance with a permit constitutes an exception to the general
strict liability of the CWA," that provision is ambiguous because it
"does not explicitly explain the scope of permit protection").
The district court concluded, however, that its facial interpretation
— that a permit issued under § 404 can only authorize the discharge
of fill material into navigable waters "for some beneficial primary
purpose . . . not waste material discharged solely to dispose of waste"
— was supported by § 404(f)(2) of the Clean Water Act, by the Act’s
succession to the Rivers and Harbors Act, and by the Act’s relation
to the Surface Mining Control and Reclamation Act ("SMCRA"). We
examine each of these to determine whether any unambiguously indi-
cates a clear congressional intent with respect to the definition of "fill
material" as used in § 404(a).
24 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
Explaining its reliance on § 404(f)(2) of the Act, the court stated:
While the specific term "fill material" is not defined by stat-
ute, the CWA is not silent about the types of fills requiring
§ 404 permits. See Kentuckians, 2002 WL 1033853 at *7;
33 U.S.C. § 1344(f)(2) [§ 404(f)(2) of the Act] (fills "inci-
dental to any activity having as its purpose bringing an area
of the navigable waters into a use to which it was not previ-
ously subject" require permits). Thus § 404 is neither silent
nor ambiguous on the issue of § 404 fills and their purposes.
A closer examination of § 404(f)(2), however, does not provide evi-
dence of clear intent that "fill material" means only "material depos-
ited for some beneficial primary purpose." This is because § 404(f)(2)
does not define or limit "fill material." Rather, it serves only as a nar-
row restoration of permit coverage to the list of discharges exempted
from permit coverage in § 404(f)(1), and the list of discharges in
§ 404(f)(1) is a short list of exceptions to the broad range of dis-
charges covered by the term "fill material" in § 404(a). Thus, § 404
(f)(2) is no more than a single exception to the list of exceptions to
the broad coverage of § 404(a). At most, the exception of § 404(f)(2)
to the exceptions provided in § 404(f)(1) describes one possible cir-
cumstance in which a permit is required, but it does not limit the
breadth of discharges subject to permit authority in § 404(a).
The district court also relied on the Clean Water Act’s succession
to the Rivers and Harbors Act to derive a clear congressional intent
to enact the beneficial-primary-purpose meaning of "fill material."
The district court concluded that Congress intended that § 404 of the
Clean Water Act would carry forward only the Corps’ authority under
§ 10 of the River and Harbors Act, 33 U.S.C. § 403, and that § 402
of the Clean Water Act would carry forward the activities previously
covered by § 13 of the Rivers and Harbors Act, often referred to as
the Refuse Act, 33 U.S.C. § 407. The court concluded that these two
provisions of the Rivers and Harbors Act bifurcated the regulation of
activities, with § 10 of the Rivers and Harbors Act regulating only the
construction of beneficial projects and § 13 regulating all waste dis-
posal other than dredged spoil. The court concluded that §§ 402 and
404 of the Clean Water Act "perpetuated that longstanding distinc-
tion." While the court may have been correct that § 10 of the Rivers
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 25
and Harbors Act was one source of § 404 of the Clean Water Act, it
erred in concluding that § 10 regulated only beneficial fills, not waste.
On its face, § 10 of the Rivers and Harbors Act is sufficiently broad
to prohibit the discharge of any fill material, including waste, that
would "alter or modify the course, location, condition, or capacity" of
designated navigable waters. 33 U.S.C. § 403 (emphasis added). And
the regulations adopted under § 10 implement regulation of any plans
for "excavation or fill in navigable waters." 33 C.F.R.
§ 209.120(b)(1)(i)(b) (1973) (emphasis added). Moreover, the
Supreme Court has recognized that § 10 of the Rivers and Harbors
Act is not so limited as to exclude the deposit of industrial waste con-
taining various solids which, upon settling out, reduced the depth of
a river. United States v. Republic Steel Corp., 362 U.S. 482 (1960);
see also Sierra Club v. Andrus, 610 F.2d 581, 596-97 (9th Cir. 1979).
The district court could not conclude, therefore, that even if § 404 of
the Clean Water Act succeeded only § 10 of the Rivers and Harbors
Act, the provisions of § 10 would limit the definition of "fill material"
in § 404 to "material deposited for some beneficial primary purpose."
Similarly, the Clean Water Act’s relationship to SMCRA does not
provide a clear intent that § 404’s definition of "fill material" is lim-
ited to a beneficial use. While SMCRA does not define "fill material,"
its term "excess spoil material," 30 U.S.C. § 1265(b)(22), is defined
in the SMCRA regulations as material placed "in a location other than
the mined-out area." 30 C.F.R. § 701.5 and 816/817.71-.74. And,
regardless of whether the fill has a beneficial primary purpose,
SMCRA does not prohibit the discharge of surface coal mining excess
spoil in waters of the United States. The district court’s reference to
SMCRA’s provision of a "buffer zone," see 30 C.F.R. § 816.57, does
not address the scope of the Corps’ jurisdiction under the Clean Water
Act to regulate all "fill material." Indeed, it is beyond dispute that
SMCRA recognizes the possibility of placing excess spoil material in
waters of the United States even though those materials do not have
a beneficial purpose. Section 515(b)(22)(D) of SMCRA authorizes
mine operators to place excess spoil material in "springs, natural
water courses or wet weather seeps" so long as "lateral drains are con-
structed from the wet areas to the main underdrains in such a manner
that filtration of the water into the spoil pile will be prevented." 30
U.S.C. § 1265(b)(22)(D). In addition, § 515(b)(24) requires surface
mine operators to "minimize disturbances and adverse impacts of the
26 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
operation on fish, wildlife, and related environmental values, and
achieve enhancement of such resources where practicable," implying
the placement of fill in the waters of the United States. 30 U.S.C.
§ 1265(b)(24). It is apparent that SMCRA anticipates the possibility
that excess spoil material could and would be placed in waters of the
United States, and this fact cannot be juxtaposed with § 404 of the
Clean Water Act to provide a clear intent to limit the term "fill mate-
rial" to material deposited for a beneficial primary purpose.
The district court also resorted to the legislative history of the
Clean Water Act, but this history does not demonstrate a clear con-
gressional intent to limit "fill material" to material deposited for a
beneficial primary purpose. The court’s canvass of statements by leg-
islators concludes merely that the sole concern of Section 404 was
dredged spoil, and "Section 404 was enacted to allow harbor dredging
and dredged spoil disposal to continue expeditiously under the then-
existing dredge and fill permit program administered by the Corps."
The focus of the court’s description of the legislative history is only
on dredged spoil, not on the meaning of the additional term "fill mate-
rial," on which the legislative history appears inconclusive.
Finally, the district court relied on "longstanding regulatory inter-
pretation" by the EPA and the Corps. This reliance was entirely inap-
propriate to the court’s analysis under Chevron step one. The focus
of step one of Chevron analysis is "whether Congress has directly
spoken to the precise question at issue," making its intent clear. Chev-
ron, 467 U.S. at 842 (emphasis added). Agency interpretations of stat-
utory provisions only come into play if Congress has not spoken
clearly. Relying on agency interpretations as evidence of a clear con-
gressional intent is therefore misguided.
The district court’s application of traditional tools of statutory con-
struction thus could not leave it with a clear congressional intent that
the undefined term "fill material" as used in § 404 means material
deposited for a beneficial primary purpose. Indeed, the lack of clarity
in the term itself prompted the agencies to undertake efforts to
develop the term’s meaning from the context of the permit programs
and the interrelationship between § 402 permits and § 404 permits.
While the statute authorizes the EPA to issue permits "for the dis-
charge of any pollutant," defining "pollutant" to include "rock, sand,
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 27
cellar dirt and industrial, municipal, and agricultural waste," 33
U.S.C. § 1362(6), the EPA is not authorized to issue a permit for "fill
material," 33 U.S.C. § 1342(a)(1). Yet, when a permit is issued by the
Corps under § 404 for the discharge of fill material that has a substan-
tive adverse effect on municipal waters, fish, and wildlife, the EPA
can veto the Corps’ permit. 33 U.S.C. § 1344(c). The statute’s silence
on the definition of "fill material" thus gives rise to ambiguity, partic-
ularly when a broad definition of "fill material" is employed.
Based on our de novo review of whether Congress has spoken
clearly on the meaning of "fill material," see Holland v. Pardee Coal
Co., 269 F.3d 424, 430 (4th Cir. 2001) (holding that an issue of statu-
tory construction is a "pure question of law" subject to de novo
review), we conclude that Congress has not clearly spoken on the
meaning of "fill material" and, in particular, has not clearly defined
"fill material to be material deposited for some beneficial primary
purpose." Accordingly, we proceed into Chevron step-two analysis to
determine whether the Corps’ action is based on a permissible con-
struction of § 404. See Capitol Mortgage Bankers, Inc. v. Cuomo, 222
F.3d 151, 155 (4th Cir. 2000) (determining that the district court’s
Chevron step-one holding was incorrect and stating that "[w]e must
therefore proceed to the second step of the Chevron analysis and con-
sider, with deference to [the agency’s] expertise in this area, whether
the agency’s interpretation of the statute . . . is based on a permissible
construction of the statute").
D
Although the district court rested its holding principally on a statu-
tory interpretation of the Clean Water Act under Chevron step one,
concluding that "§ 404 is neither silent nor ambiguous on the issue of
§ 404 fills and their purposes," it addressed alternatively, albeit con-
clusorily, the reasonableness of the Corps’ interpretation of the statute
under Chevron step two. The court stated that its "examination of the
legislative and regulatory history, interagency agreements, and related
statutes demonstrates any interpretation of § 404 fill material that
ignores and deliberately eliminates the primary purpose test for fill
authorization is contrary to the purpose, principles, and policy of the
CWA. [Citation omitted]. Such an agency interpretation is not per-
missible." The court thus reiterated the conclusion it reached in its
28 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
Chevron step-one analysis, and its Chevron step-two analysis did not
give any deference to the agency’s interpretation of this regulation nor
did it explain why such deference would be inappropriate.
Because the agency action at issue in this case was taken at a time
when the Corps’ 1977 Regulation was in effect, the appropriate
inquiry under Chevron step two is whether that regulation, as inter-
preted by the Corps, is based on a permissible reading of the Clean
Water Act, and, if so, whether the agency acted consistently with the
regulation in issuing a permit to Mountain Coal to create valley fills
in connection with coal mining activities.
The Corps’ 1977 Regulation defines "fill material" as "any material
used for the primary purpose of replacing an aquatic area with dry
land or of changing the bottom elevation of a [ ] waterbody." 33
C.F.R. § 323.2(e) (2001). The regulation provides further that "[t]he
term does not include any pollutant discharged into the water primar-
ily to dispose of waste, as that activity is regulated under section 402
of the Clean Water Act." Id. At the time when this 1977 Regulation
was promulgated, the Corps, explaining the "waste" exclusion, stated
that in its experience:
several industrial and municipal discharges of solid waste
materials have been brought to our attention which techni-
cally fit within our definition of "fill material" but which are
intended to be regulated under the NPDES program [i.e., the
EPA’s program created under § 402]. These include the dis-
posal of waste materials such as sludge, garbage, trash, and
debris in water.
***
The Corps and the Environmental Protection Agency feel
that the initial decision relating to this type of discharge
should be through the NPDES program.
42 Fed. Reg. 37,122, 37,130 (July 19, 1977).
To demonstrate that the Corps’ understanding of its authority to
issue permits for valley fills was based on a longstanding division of
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 29
authority between the Corps and the EPA that reflected the interpreta-
tions of both agencies with regard to their respective regulatory
authority under the Clean Water Act, the Corps submitted to the dis-
trict court over 120 pages of correspondence with the EPA and with
regulated parties addressing valley fill permits issued under Section
404. This correspondence, which spans approximately ten years from
1990 through 2000, includes actual permit grants, EPA objections to
Corps actions, and evaluations by the Corps and the EPA of mitiga-
tion plans. To the extent that this correspondence reveals any disputes
about the Corps’ exercise of its permitting authority, these disputes
focus on whether the impact of a particular valley fill would be more
than minimal, thus requiring the issuance of an individual permit
rather than authorization under a nationwide permit. The basic divi-
sion of authority, including the Corps’ authority to issue valley fill
permits, is apparent throughout this record of both agencies’ prac-
tices. The Corps also submitted the affidavit of Michael B. Cook, the
director of EPA’s Office of Wastewater Management in Washington,
D.C. since 1991. According to Mr. Cook:
While the effluent guidelines address certain discharges of
pollutants associated with coal mining operations (e.g., coal
preparation plants and mine drainage), the regulations do
not address discharges of soil, rock and vegetation (i.e.,
overburden) that is excavated in order to access coal
reserves and then placed in waters of the United States, as
in the case of valley fills. To our knowledge, such dis-
charges have only been authorized by permits issued under
section 404 of the CWA by the Army Corps of Engineers.
In short, the evidence submitted to the district court revealed a long-
standing and consistent division of authority between the Corps and
the EPA with regard to the issuance of permits under CWA Section
402 and CWA Section 404.
Moreover, when the Corps issued the permit to Martin Coal on
June 20, 2000, it continued to operate with an understanding that it
was authorized to regulate discharges of fill, even for waste, unless
the fill amounted to effluent that could be subjected to effluent limita-
tions. It certainly did not interpret its own 1977 Regulation to impose
a beneficial primary purpose requirement. This is evidenced by its
30 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
public notice given on April 17, 2000, two months prior to the issu-
ance of the permit at issue in this action, when the Corps joined with
the EPA to propose a joint rule that would "not alter current practice,"
but rather was "intended to clarify what constitutes ‘fill material’ sub-
ject to CWA section 404." 65 Fed. Reg. at 21,292. The Corps and the
EPA recognized that some courts had interpreted the Corps’ regula-
tion to impose a primary-purpose test applied without regard to the
traditional division of authority between the Corps and the EPA, and
that the ambiguities of this test had caused confusion. As one specific
example of this confusion, the Corps and the EPA pointed to dicta in
an opinion issued by the district court in an earlier valley-fill case in
which the district court determined that "the Corps lacked authority
to regulate under CWA section 404 the placement into waters of the
U.S. of rock, sand, and earth overburden from coal surface mining
operations, because the ‘primary purpose’ of the discharge was waste
disposal." Id. at 21,295. Disclaiming any interpretation of the Corps’
1977 Regulation that would strip the Corps of authority to issue § 404
permits for valley fills, the Corps and the EPA described what they
understood the appropriate division of labor to be:
The section 402 program is focused on (although not limited
to) discharges such as wastewater discharges from industrial
operations and sewage treatment plants, stormwater and the
like. . . . Pollutant discharges are controlled under the sec-
tion 402 program principally through the imposition of
effluent limitations, which are restrictions on the "quantities,
rates, and concentrations of chemical, physical, biological
and other constituents which are discharged from point
sources into navigable waters" . . . . There are no statutory
or regulatory provisions under the section 402 program
designed to address discharges that convert waters of the
U.S. to dry land.
***
[S]ection 404 focuses exclusively on two materials: dredged
material and fill material. The term "fill material" clearly
contemplates material that fills in a water body, and thereby
converts it to dry land or changes the bottom elevation. Fill
material differs fundamentally from the types of pollutants
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 31
covered by section 402 because the principal environmental
concern is the loss of a portion of the water body itself. For
this reason, the section 404 permitting process focuses on
different considerations than the section 402 permitting pro-
gram.
Id. at 21,293.
This contemporaneous explanation by the two agencies charged
with the responsibility of administering the Clean Water Act provides
a rational interpretation of the 1977 Regulation that is neither plainly
erroneous nor inconsistent with the text of the regulation. The 1977
Regulation seeks to divide the statutory responsibilities between the
agencies charged with different responsibilities by defining "fill mate-
rial" that is subject to regulation by the Corps and "waste" that is sub-
ject to regulation by the EPA through the administration of effluent
limitations. Moreover, the resolution among agencies of the line
dividing their responsibilities is just the type of agency action to
which the courts must defer. See Echazabal, 122 S. Ct. at 2052 (not-
ing that the EEOC’s resolution of a tension between the Americans
with Disabilities Act and the Occupational Safety and Health Act "ex-
emplifies the substantive choices that agencies are expected to make
when Congress leaves the intersection of competing objectives both
imprecisely marked and subject to administrative leeway").3
3
In the concurring opinion, our colleague suggests that the record of
this litigation contains "neither an interpretation nor competent evidence
of the Corps’ interpretation" of the 1977 regulations. Rather, our col-
league suggests, we only know what the Corps’ practice has been. Apart
from overlooking the Corps’ 1977 and 2000 statements in the Federal
Register, which state its interpretation of the 1977 Regulation, our col-
league’s distinction between interpretation and practice in this context
neglects an additional approach which the record bears out, namely that
the Corps’ regulatory practice reflects its interpretation. Cf. Udall v. Tall-
man, 380 U.S. 1, 18 (1965) (explaining that an administrative interpreta-
tion of two Executive Orders had "long . . . been a matter of public
record and discussion" and applying the "rule that the practical construc-
tion given to an act of Congress, fairly susceptible of different construc-
tions, by those charged with the duty of executing it is entitled to great
respect and, if acted upon for a number of years will not be disturbed
except for cogent reasons") (quotation marks omitted).
32 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
A reviewing court can set aside the agency’s interpretation of its
own regulation only if that interpretation is "plainly erroneous or
inconsistent with the regulation." Auer, 519 U.S. at 461 (internal quo-
tation marks and citation omitted). When we examine the Corps’
1977 Regulation and its interpretations of that regulation, we con-
clude that the Corps’ interpretations of the 1977 Regulation — made
both by interpretations published in the Federal Register and by its
application of that regulation in issuing permits — were neither
plainly erroneous nor inconsistent with the text of the regulation.
We next determine whether the 1977 Regulation itself, as con-
strued by both the Corps and the EPA, was also a permissible reading
of the Clean Water Act.
The stated goal of the Clean Water Act is "to restore and maintain
the chemical, physical, and biological integrity of the Nation’s
waters." 33 U.S.C. § 1251(a). To that end, the Clean Water Act pro-
hibits discharges of pollutants into the waters of the United States,
except in compliance with a permit issued by one of the permit
regimes established by the Act. 33 U.S.C. § 1311(a). Two principal
regimes are created in §§ 402 and 404 of the Act. Section 402 creates
a permit program under the National Pollutant Discharge Elimination
System, a combination of State and EPA regulatory activities that is
administered by the EPA. Section 404 creates a permit program
administered by the Corps, authorizing the Corps to issue permits
only in connection with the "discharge of dredged or fill material into
the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a).
The two sections are linked by cross-references, exclusions, and
vetoes. Section 402 authorizes the EPA to issue permits for the dis-
charge of any pollutant or combination of pollutants, except as pro-
vided in § 404. And § 404 in turn provides that the Corps may issue
permits for the limited discharges relating to dredged or fill material,
providing that the Corps’ permits are always subject to the veto power
of the EPA when the dredged or fill material would have "an unac-
ceptable adverse effect on municipal water supplies, shellfish beds
and fishery areas . . . wildlife, or recreational areas." 33 U.S.C.
§ 1344(c). Thus, a § 404 permit is always subject to the EPA’s deter-
mination that a discharge will have an "unacceptable adverse effect"
on certain specified waters, reinforcing the fill-effluent distinction
that has been followed by the agencies.
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 33
Because the Clean Water Act clearly intended to divide functions
between the Corps and the EPA based on the type of discharge
involved, we conclude that it was consistent with the Act for the
Corps to have adopted its 1977 Regulation defining "fill material" to
be
any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom eleva-
tion of a [ ] water body. The term does not include any pol-
lutant discharged into the water primarily to dispose of
waste, as that activity is regulated under Section 402 of the
Clean Water Act.
33 C.F.R. § 323.2(e) (2001). The first sentence of this regulation
adopts an inclusive test that focuses on the purposeful displacement
of water with solid material. The second sentence provides, as con-
strued by the agencies, an exclusion which defers to the EPA’s
authority to regulate "waste." Because it was not plainly erroneous or
inconsistent with the regulation for the Corps to have asserted that its
use of the term "waste" in the 1977 Regulation was not intended to
defer to the EPA on all material deposited for disposal, as we have
already concluded, we read the 1977 Regulation to include that inter-
pretation and, as so interpreted, conclude that the 1977 Regulation
was a rational interpretation of the Clean Water Act. Section 404 con-
fers on the Corps all responsibility to issue permits for the discharges
of "fill material," but it gives the EPA a veto when those discharges
might adversely affect the quality of certain waters. Section 402 con-
fers on the EPA responsibility to regulate the discharge of pollutants
into waters under mechanisms to administer effluent limitations. The
two authorizations might overlap on certain types of "fill material"
that adversely affect the quality of water, and the 1977 Regulation, as
interpreted by the Corps, reasonably addresses this potential ambigu-
ity.
In sum, we conclude that the Corps’ interpretation of "fill material"
as used in § 404 of the Clean Water Act to mean all material that dis-
places water or changes the bottom elevation of a water body except
for "waste" — meaning garbage, sewage, and effluent that could be
regulated by ongoing effluent limitations as described in § 402 — is
a permissible construction of § 404. And as an interpretation of its
34 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
1977 Regulation, it is neither plainly erroneous nor inconsistent with
the text of the regulation.
The Corps’ issuance of the permit to Martin Coal on June 20, 2000,
therefore, was not arbitrary, capricious, an abuse of discretion, or
otherwise contrary to law insofar as Kentuckians alleged in Count I
of the complaint. On this issue, we reverse the judgment of the district
court.
IV
In sum, we vacate the injunction issued by the district court on
May 8, 2002, as modified on June 17, 2002; we reverse the district
court’s declarations that "fill material" as used in § 404 of the Clean
Water Act is limited to mean "material deposited for some beneficial
primary purpose . . ., not waste material discharged solely to dispose
of waste" and that the Corps has acted ultra vires in issuing valley fill
permits, particularly the authorization to Martin Coal in this case; we
vacate the district court’s memorandums and orders of May 8 and
June 17, 2002; and we remand for further proceedings not inconsis-
tent with this opinion.
IT IS SO ORDERED
LUTTIG, Circuit Judge, concurring in the judgment in part and dis-
senting in part:
The Kentuckians, the plaintiff in this litigation, challenged a single
fill deposit permit issued by the defendant Corps of Engineers to a
single company, Martin Coal, and it claimed only that the Corps vio-
lated its 1977 regulations and section 404 of the Clean Water Act in
issuing that one permit. The plaintiff sought a declaration that the
Martin Coal permit was unlawful under the 1977 regulations and an
injunction prohibiting deposits pursuant to that permit. The only issue
before the district court, therefore, was whether the permit issued to
Martin Coal was lawfully issued under the Corps’ 1977 regulations
which were then in effect.
Notwithstanding that this was the issue, and only issue, presented
by the Kentuckians’ complaint, the district court never even addressed
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 35
this issue. And not only did it not address this narrow presented issue;
it wrote expansively on a wide range of other issues not presented by
the plaintiff at all, including the meaning of section 404 of the Clean
Water Act, and the validity, not even of the 1977 regulations pursuant
to which the challenged permit was issued, but of the new regulations
jointly issued by the Corps and EPA in 2002, which regulations have
no relevance of any kind whatsoever to the instant litigation. To add
insult to injury, after addressing itself broadly to, and deciding, these
issues that were not even presented by the complaint, the district court
proceeded to issue a prospective injunction based upon these roving
interpretations, which effectively prohibited the Corps from issuing
any permits in futuro for mountaintop removal mining in parts of five
different states. Finally, completing its utterly bewildering treatment
of this relatively straightforward case, the district court refused to
enjoin the deposits authorized under the one permit that the Kentucki-
ans actually did challenge, although it obviously believed those
deposits unlawful.
It misses the mark to say, as the majority does, that the district
court’s injunction was "overbroad." Such an assessment implies that
at least a part of the injunction was legitimate. But no part of the dis-
trict court’s injunction was directed to the controversy presented by
the plaintiff, and therefore none of the injunction was legitimate.
Indeed, at oral argument, even counsel for the Kentuckians freely
admitted that the district court’s actions bore no relation whatsoever
to the relief requested:
COURT: It seems . . . that the district court here had the sim-
plest and narrowest of cases before it and in the end that’s
what troubled the court. It was not content with deciding the
issue before it. It was told during the progression of the pro-
ceedings that there was a new rule and the court wanted to
reach out and grab that rule and invalidate it. And the only
way to do that was to go to the Clean Water Act straight
ahead rather than to the existing regulation by the Corps.
Because, as the district court said, it believed that regulation
was just fine. But if it agreed that that regulation was fine,
then all that it would be left to do is decide whether the per-
mit issued under it was valid or not, which is a relatively
menial exercise compared to invalidation, prospectively, of
36 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
all regulations in all jurisdictions based upon an overarching
interpretation of the Clean Water Act. But it seems that
that’s exactly what happened here.
COUNSEL FOR KENTUCKIANS: That’s correct.
Oral Argument, Dec. 4, 2002.
As if pleased with the district court’s ex cathedra decision, the par-
ties briefed the appeal as if all of the issues decided by the district
court not only were raised by the complaint but properly decided by
that court. Thus, the Kentuckians argue fervently that the district
court’s interpretation of the Clean Water Act is correct, and the Corps
and Intervenors argue just as ardently that the 2002 regulations are a
permissible interpretation of that Act. And like the district court, all
of these parties ignore entirely the sole issue actually presented for
review in this case.
The role of the appellate court in theory, of course, is to right the
legal wrongs that occur in the district courts and, in the course of so
doing, to explain to the parties the error in the arguments they
advance in defense of and challenge to the district court’s judgment.
But rather than right the palpable wrongs of the district court, and
explain to the parties wherein their errors lie, the majority instead
adds to those wrongs by proceeding precisely as did the district court,
and as do the parties, simply reaching different conclusions from
those reached by the district court, and aligning itself with one side
to the litigation rather than the other. Thus, just as the district court
was not content simply to address the issue presented to it, so also is
the majority discontent to address only the issue presented to us.
Repeating in reverse the errors committed by the district court, the
majority wades knee-deep, and without apparent hesitation, into the
very issues that were improvidently decided by the district court and
argued by the parties (and more), concluding, among other things, (1)
that the meaning of the term "fill material" in section 404 of the Clean
Water Act is ambiguous under Chevron step one, (2) that the Corps’
interpretation of its 1977 regulation is neither plainly erroneous nor
inconsistent with the text of the 1977 regulation, (3) that so construed,
the 1977 regulation is a permissible interpretation of the Clean Water
Act under Chevron step two, and, last but not least, (4) that the issu-
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 37
ance of the Martin Coal permit by the Corps was not arbitrary and
capricious. Of these issues decided by the majority, only the first was
actually passed upon by the district court, and, as noted, it improperly
so.
Proceeding ex cathedra in this fashion, the majority, as might be
expected, falls headlong into the very pitfalls that are generally
avoided by simple adherence to the prudential rule against decision
of issues not presented. To take one, but one exceedingly important,
example, the majority concludes confidently, at the heart of its opin-
ion, that it must defer to the Corps’ interpretation of the Corps’ 1977
regulations. But the Corps has not provided this court with any inter-
pretation of the 1977 regulations, for the understandable (even if, at
this point, comic) reason that the district court did not hold as to the
interpretation of these regulations or the lawfulness of the Martin
Coal permit under these regulations, and thus there is no judgment on
this issue from which to appeal and on the basis of which to marshal
argument.
When asked by the court at oral argument whether there was "any
substantive difference between the new rule [the 2002 regulations]
and the old rule [the 1977 regulations]," counsel for the Corps did
reply, "there is a word difference and a substantive difference. The
prior rule says that material deposited just for waste should be regu-
lated under section 402 of the Clean Water Act." Oral Argument,
Dec. 4, 2002 (emphasis added). But of course, if anything, this state-
ment at least suggests that the Corps’ interpretation of the 1977 regu-
lations is different than that interpretation that the majority ascribes
to the Corps and then defers to.
Rather than acknowledge that it actually has no idea how the Corps
interprets the 1977 regulations, the majority goes outside the litigation
in search of an interpretation to which to defer. But its search yields
neither an interpretation nor competent evidence of the Corps’ inter-
pretation of these now-superceded regulations. The putative agency
interpretation to which the court so eagerly defers is constructed by
the majority almost entirely from statements made in the course of
promulgation of, not the 1977 regulations in question, but rather, the
2002 joint Corps/EPA regulations.1 These statements say nothing
1
The majority also points to certain statements in the Federal Register
regarding the "waste" exclusion in the 1977 regulation. Not only do the
38 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
more than that the 2002 regulations are consistent with the superceded
EPA regulations and the agencies’ regulatory practice. They also
describe the agencies’ vision of areas that are appropriate for section
404 regulation, but are quite careful not to say that the 1977 regula-
tions covered those areas. Thus the statements on the basis of which
the majority infers the Corps’ interpretation say nothing at all about
the agency’s interpretation of the 1977 regulations, leaving it quite
possible, as the Kentuckians contend, that the Corps’ regulatory prac-
tice was inconsistent with its own 1977 regulations, (which prompted
promulgation of the 2002 regulations) — a possibility not as much as
considered by the majority.
Rather than "overlooking" the 1977 and 2000 statements by the
Corps in the Federal Register, I have actually read those statements
carefully, which I am not sure the majority has done. If it had, it
would be clear to the majority as well that in neither place does the
Corps "state its interpretation of the 1977 Regulation," ante at 31 n.3.
This is my entire point, namely, that nowhere does the Corps state
what its interpretation of the regulation is. The sleight of hand
employed by the majority in footnote 3 is its equation of "practice"
with "interpretation." In the 2000 and 2002 Federal Register state-
ments, the Corps does describe its practice but it does not, despite the
majority’s assertion otherwise, state its interpretation. In the 1977
Federal Register it states neither.
In the absence of a stated interpretation, of course, the "additional
approach" referenced by the majority in the same footnote is mean-
ingless, because it is unknown whether the "Corps’ regulatory prac-
tice reflects its interpretation," ante at 31 n.3. The only authority
offered by the majority in support of its approach, Udall v. Tallman,
is, in any event, inexplicable given that (even according to the major-
ity) there was in that case a longstanding administrative interpretation
of the two Executive Orders to which to defer.
I credit my colleagues with going the extra mile and reviewing the
ten years of correspondence between the EPA and the Corps, see ante
quoted portions not speak to mountaintop overburden, which is what is
at issue in this case, but they also do not address the primary purpose test
established by the 1977 regulation.
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 39
at 28-29, in an effort to identify an agency interpretation of the regu-
lation at issue. Of course, that through this exercise all it learns is that
there has been a division of authority between the EPA and the Corps
only confirms what has been the futility in its overall enterprise to
divine an agency interpretation. For, the fact that the EPA and Corps
have divided and shared authority bears not at all on the regulatory
interpretation espoused by either, although the majority evidently
believes otherwise. And this is not to mention that the block quote
featured by the majority in conclusion is not even that of the Corps
or a Corps official but rather a statement of an EPA official. See ante
at 29.
Even if the Corps had interpreted the 1977 regulations as the
majority believes it had, it is not clear that that interpretation is due
any deference. As the majority correctly recites, the agency interpre-
tation must not be "inconsistent with the text of the regulation." The
1977 regulations defined "fill material" as follows:
any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom eleva-
tion of a[ ] waterbody. The term does not include any pollu-
tant discharged into the water primarily to dispose of waste,
as that activity is regulated under section 402 of the Clean
Water Act.
33 C.F.R. § 323.2(e) (2001) (emphasis added). While the majority
asserts that the Corps’ assumed interpretation is consistent with the
term "waste" as used in the regulations, it completely fails to analyze
whether that interpretation is consistent with the "primary purpose"
test also established by the regulations. And how the deposit of min-
ing spoil into waters of the United States for purposes of disposal has
the primary purpose of creating dry land or elevating the waterbody
is, at the very least, not immediately obvious.
None of the above is necessarily to disagree with the ultimate con-
clusions the majority reaches with respect to any of the issues it
decides, although I do suspect that it might be incorrect as to one, if
not more, of those conclusions. It is, however, to highlight the weak-
ness in its analysis and thereby the perils that inhere in deciding issues
that have not only not been briefed or argued by the parties, but have
40 KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH
not even been decided by the district court whose judgment we
review.
Rather than embark on the treacherous course chosen by the district
court and the majority to resolve all issues, regulatory and statutory,
that are presented by the deposit of mountaintop fill in waters of the
United States, I would confine myself to the narrow issue presented
by the case.
As the parties readily acknowledged at argument, there was no
need for the district court (and there is likewise no need for this court)
to interpret the Clean Water Act, or the 2002 jointly-promulgated reg-
ulations. When asked by the court the following, "you don’t believe
that the district court was required to address the Clean Water Act at
all, do you? You believe that this deposit of waste was invalid under
the existing Corps rule," counsel for the Kentuckians replied "Cor-
rect." And counsel for the Corps similarly affirmed that "th[is] court
doesn’t need to get into the construction of the Clean Water Act."
And I would say nothing about either.2 I would address only those
2
Contrary to the suggestion of my colleagues, I do not "assume[ ]" that
the agency acted within the scope of its statutory authority. Ante at 21
n.2. Neither do I assume that the agency acted within the scope of its reg-
ulatory authority. Indeed, I have raised questions about whether the
agency acted in compliance with its authority under both the regulation
and the statute.
The paragraph in the Kentuckians’ complaint cited by my colleagues
for their assumption that the Kentuckians challenge both the regulation
and the Clean Water Act does not at all convince me that the Kentucki-
ans has done so; in fact I understand that paragraph, without more, and
also the complaint as a whole, to challenge only the issuance of the per-
mit under the regulations. It is only this understanding that can logically
be reconciled with the Kentuckians’ undisputed challenge to the Martin
Coal permit only. The Kentuckians’ argument is, quite simply, and has
been from the outset, that the issuance of the Martin Coal permit violated
both the regulation and the statute. The Kentuckians has never argued,
as it orally affirmed before us, that the 1977 regulation is incompatible
with section 404 of the Clean Water Act. Needless to say, that the district
court decided the statutory question is of no moment to me because, as
I have explained, the district court reached and decided every possible
issue it could (except the only issue presented in the case), as does the
majority.
KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH 41
claims presented by the Kentuckians in its complaint, and I would fur-
ther limit myself to deciding only the subset of issues presented on
appeal.
In this case, the sole issue on appeal is whether the district court’s
judgment and opinions, which confront issues not raised and grants
relief no party requested, all the while failing to reach the one issue
actually raised, were proper. Clearly, neither is. As a result, I would
vacate the district court’s entire injunction and its opinions and
remand for consideration of the only issue that has ever been pre-
sented by these parties — the lawfulness of the Martin Coal permit
under the Corps’ 1977 regulations. If a new judge is not to be desig-
nated, the integrity of the judicial process requires at least that we
wipe the slate clean, returning these parties to where they started, and
require the district court in the first instance to decide the issue pre-
sented by the complaint — and only that issue — after which a deci-
sion on the merits of the dispute would be in order. As currently pos-
tured, the case is, to cast legalese aside in favor of clarity, upside-
down. And no amount of disquisition undertaken from essentially the
same procedural perspective of the district court can turn it upright —
not even one, as the majority’s, that arrives at conclusions diametri-
cally opposite those reached by that court.