Ohio River Valley Environmental Coalition, Inc. v. Kempthorne

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OHIO RIVER VALLEY ENVIRONMENTAL 
COALITION, INCORPORATED; HOMINY
CREEK PRESERVATION ASSOCIATION,
INCORPORATED; CITIZENS COAL
COUNCIL,
Plaintiffs-Appellees,  No. 06-1122
v.
DIRK KEMPTHORNE, Secretary of the
Interior,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(3:04-cv-00084)
Argued: September 18, 2006
Decided: December 12, 2006
Before WILLIAMS, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
Richard L. VOORHEES, United States District Judge
for the Western District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Senior Judge Hamilton and Judge Voorhees joined.
2 OHIO RIVER VALLEY v. KEMPTHORNE
COUNSEL
ARGUED: Allen M. Brabender, UNITED STATES DEPARTMENT
OF JUSTICE, Environment & Natural Resources Division, Washing-
ton, D.C., for Appellant. Walton Davis Morris, Jr., Charlottesville,
Virginia, for Appellees. ON BRIEF: Steven C. Barcley, UNITED
STATES DEPARTMENT OF THE INTERIOR, Office of the Solici-
tor, Pittsburgh, Pennsylvania; Sue Ellen Wooldridge, Assistant Attor-
ney General, Kathryn E. Kovacs, Ruth Ann Storey, UNITED
STATES DEPARTMENT OF JUSTICE, Environment & Natural
Resources Division, Washington, D.C., for Appellant. Charles M.
Kincaid, Huntington, West Virginia, for Appellees.
OPINION
WILLIAMS, Circuit Judge:
The Secretary of the Interior1 appeals the district court’s grant of
summary judgment in favor of Ohio River Valley Environmental
Coalition, Inc., Hominy Creek Preservation Association, Inc., and Cit-
izens Coal Council (collectively "OVEC") in an action alleging that
the Secretary’s approval of amendments to West Virginia’s regulatory
program for surface coal mining violated the Administrative Proce-
dure Act ("APA"), 5 U.S.C.A. § 500 et seq. (West 1996), and the Sur-
face Mining Control and Reclamation Act of 1977 ("SMCRA"), 30
U.S.C.A. § 1201 et seq. (West 1986 & Supp. 2006). Because the Sec-
retary’s decision to approve the amendments was arbitrary and capri-
cious, we affirm.
I.
A.
West Virginia developed its state program for the control of surface
1
OVEC sued former Secretary of the Interior Gail Norton in her offi-
cial capacity. This court substituted the current Secretary, Dirk Kemp-
thorne, as the named defendant on appeal.
OHIO RIVER VALLEY v. KEMPTHORNE 3
coal mining pursuant to SMCRA, which regulates surface coal mining
through a cooperative federalism approach. "Under this scheme, Con-
gress established in SMCRA minimum national standards for regulat-
ing surface coal mining and encouraged the States, through an offer
of exclusive regulatory jurisdiction, to enact their own laws incorpo-
rating these minimum standards, as well as any more stringent, but
not inconsistent, standards that they might choose." Bragg v. West
Virginia Coal Ass’n, 248 F.3d 275, 288 (4th Cir. 2001); see 30
U.S.C.A. § 1202. To accept this offer, "a State must pass a law that
provides for the minimum national standards established as require-
ments in SMCRA and must also demonstrate that it has the capability
of enforcing its law." Id. (citing 30 U.S.C.A. § 1253(a)); see also 30
C.F.R. § 732.15 (2006). SMCRA charges the Secretary of the Interior,
acting through the Office of Surface Mining Reclamation and
Enforcement ("OSM"), with the task of reviewing and either approv-
ing or disapproving state regulatory programs for the control of sur-
face coal mining. 30 U.S.C.A. § 1211(c)(1).
Once the Secretary approves a state program, the State has
achieved "primacy" and has exclusive jurisdiction to regulate surface
coal mining within its borders. The federal requirements "drop out"
as operative provisions, although they "continu[e] to provide the
‘blueprint’ against which to evaluate the State’s program" and can be
reengaged in a 30 U.S.C.A. § 1271 enforcement proceeding by the
Secretary. Bragg, 248 F.3d at 289. Also, any proposed change to the
laws or regulations that make up an approved State program must be
submitted to the Secretary as a State program amendment, and the
State lacks the authority to implement the change until the Secretary
approves it. 30 C.F.R. § 732.17(g). The Secretary may not approve a
State program amendment without first soliciting and publically dis-
closing the views of the public and relevant federal agencies and
obtaining written concurrence of the Administrator of the Environ-
mental Protection Agency ("EPA") with respect to aspects of the
amendment(s) related to air or water quality standards. 30 C.F.R.
§ 732.17(h). Review of a State program amendment utilizes the same
criteria applicable to the approval or disapproval of a State program
in the first instance. 30 C.F.R. § 732.17(h)(10). Consequently, the
Secretary must find the altered State program no less stringent than
SMCRA and no less effective than the federal regulations in meeting
4 OHIO RIVER VALLEY v. KEMPTHORNE
SMCRA’s requirements in order to approve it. 30 C.F.R. §§ 730.5,
732.15(a).
B.
In January 1981, West Virginia received primacy in the form of a
conditional approval pending correction of a number of deficiencies
in its program. Inadequacies remained until 1988, when the State ini-
tiated an emergency rulemaking session to forestall federal takeover
of all or part of its program. The 1988 emergency rules added regula-
tory definitions of "cumulative impact"2 and "cumulative impact area."3
(J.A. at 122-23.) The cumulative impact provision referenced circum-
stances in which material damage could occur, explaining that
"[w]hen the magnitude of cumulative impact exceeds threshold limits
2
The State defined "cumulative impact" as
the hydrologic impact that results from the cumulation of flows
from all coal mining sites to common channels or aquifers in a
cumulative impact area. Individual mines within a given cumula-
tive impact area may be in full compliance with effluent stan-
dards and all other regulatory requirements, but as a result of the
comingling of their off-site flows, there is a cumulative impact.
The Act does not prohibit cumulative impacts but does empha-
size that they be minimized. . . .
(J.A. at 122-23.)
3
The State defined "cumulative impact area" as
the area within which impacts on surface and groundwater sys-
tems resulting from the proposed operation may interact with the
impacts of all existing or anticipated mining throughout the lives
of:
(a) the proposed operation;
(b) all existing operations;
(c) any operation for which a permit application has been
submitted to the Commissioner; and
(d) all operations required to meet diligent development
requirements for leased Federal coal for which there is actual
mine development information available.
(J.A. at 123.)
OHIO RIVER VALLEY v. KEMPTHORNE 5
or ranges as predetermined by the [West Virginia] Department [of
Energy], they constitute material damage."4 (J.A. at 123.) The Secre-
tary approved the amendments in a final rule which noted that
"[a]lthough the Federal regulations do not specifically define cumula-
tive impact, the Federal requirements at 30 C.F.R. §§ 780.21(g) and
784.14(f) contain provisions regarding the cumulative impact of min-
ing on the hydrologic balance which form the basis for the State’s
definition." See West Virginia; Permanent Regulatory Program, 55
Fed. Reg. 21,304, 21,308 (May 23, 1990).
On May 2, 2001, West Virginia submitted a state program amend-
ment to OSM that deleted the cumulative impact definition and added
a provision defining material damage as "any long term or permanent
change in the hydrologic balance caused by surface mining opera-
tion(s) which has a significant adverse impact on the capability of the
affected water resource(s) to support existing conditions and uses."
See 66 Fed. Reg. 28,682, 28,683 (May 24, 2001). The proposed mate-
rial damage definition left "significant adverse impact" undefined and
lacked any indication of how the regulatory authority proposed to
measure such an impact or determine when it would occur.
OSM responded by filing a notice of the proposed rule and oppor-
tunity for public comment in the Federal Register on May 21, 2004.
The agency received comments from interested parties and other fed-
eral agencies. The United States Fish and Wildlife Service
("USFWS") recommended that OSM deny the proposed changes. The
agency’s opposition to the deletion of the cumulative impact provi-
sion stemmed from its ongoing concern for the potential of cumula-
tive impacts from individual mountaintop mining operations to impair
the ecological functioning of entire watersheds and the resulting
belief that the law should "address this very important issue more
thoroughly rather than with less scrutiny." (J.A. at 162-63). It consid-
ered the material damage definition inadequate because it left the
terms "long term" and "significant adverse impact" undefined and
therefore open to individual interpretation and because it effectively
eliminated the consideration of short-term impacts without regard for
4
In April 2001, the West Virginia Department of Environmental Pro-
tection became the regulatory authority for surface coal mining in West
Virginia. See 30 C.F.R. § 948.10 (2006).
6 OHIO RIVER VALLEY v. KEMPTHORNE
their magnitude. (J.A. at 162-63.) EPA also expressed concern and
recommended that the cumulative impact definition not be deleted
and the material damage definition be expanded to include "violation
of water quality standards." (J.A. at 182.) Despite its concerns, EPA
did grant its concurrence of the proposed amendment, with the under-
standing that its implementation must comply with the Clean Water
Act (CWA) and its implementing regulations. OSM then requested
additional clarification from West Virginia addressing the agencies’
concerns, which the State provided. Upon receipt of the State’s clari-
fication letter, EPA reaffirmed its concurrence with the proposed
amendment. The Secretary reopened the comment period to provide
the public an opportunity to review and comment on the State’s clari-
fication. West Virginia Regulatory Program, 68 Fed. Reg. 44,910(July 31, 2003). The Secretary issued a final rule on December 1,
2003, approving the amendments to West Virginia’s program. West
Virginia Regulatory Program, 68 Fed. Reg. 67,035, 67,043 (Decem-
ber 1, 2003) (to be codified at 30 C.F.R. pt. 948).
C.
OVEC filed a complaint challenging the final rule in the United
States District Court for the Southern District of West Virginia on
January 30, 2004. See 30 U.S.C.A. § 1276(a)(1) ("Any action of the
Secretary to approve or disapprove a State program . . . shall be sub-
ject to judicial review by the United States District Court for the Dis-
trict which includes the capital of the State whose program is at
issue.") The complaint alleged that the Secretary’s approval of the
amendments violated the APA and SMCRA and sought declaratory
and injunctive relief. On September 30, 2005, the district court
granted summary judgment in favor of OVEC, vacating the Secre-
tary’s approval of the amendments and remanding the matter for fur-
ther proceedings. OVEC next requested that the court amend the
judgment because the Secretary had responded to the Order by send-
ing the State a notice that treated the deletion of the cumulative
impact definition as effective but in need of correction. On November
22, 2005, the district court issued an Amended Judgment Order
directing the Secretary to instruct West Virginia that because the Sec-
retary’s approval had been vacated, the state had no authority to
implement either amendment and therefore had to enforce the pro-
gram as approved by OSM prior to the amendments. The Secretary
OHIO RIVER VALLEY v. KEMPTHORNE 7
timely appealed both Orders. We have jurisdiction to hear this appeal
pursuant to 28 U.S.C.A. § 1291 (West 2006).
II.
We review de novo the district court’s grant of summary judgment,
applying the same standards that the district court was required to
apply. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en
banc). Because the material facts of this case are not in dispute, sum-
mary judgment is appropriate. SMCRA requires a district court
reviewing the Secretary’s action of approving a state program to
determine if the action "is arbitrary, capricious, or otherwise inconsis-
tent with law." 30 U.S.C.A. § 1276(a)(1). This standard is consistent
with the APA’s requirement that an agency’s action be set aside if it
is "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C.A. § 706(2)(A).
The Secretary argues (1) that the APA’s provisions for judicial
review and procedural requirements do not apply if they overlap with
those of another statute, (2) that approval of amendments to a state
regulatory program pursuant to SMCRA § 1211(c) does not constitute
rulemaking within the scope of APA § 553, and (3) that the OSM
offered an explanation for the decision that comports with all require-
ments. We address each argument in turn.
A.
The Secretary contends that the district court erred in applying
APA standards. The Secretary argues that because SMCRA provides
procedures and a standard of review that govern the approval or
denial of state program amendments, its provisions represent the sole
and exclusive check on OSM’s discretion in that area, and the APA
therefore does not apply. Because the novel approach urged by the
Secretary misrepresents the place of the APA in this complex regula-
tory scheme, we decline to embrace it.
1.
We first address the Secretary’s argument that the APA’s provi-
8 OHIO RIVER VALLEY v. KEMPTHORNE
sions for judicial review apply only to agency actions which have not
been made reviewable by any other statute. This interpretation con-
flicts with the plain language of the APA, which subjects both
"[a]gency action made reviewable by statute and final agency action
for which there is no other adequate remedy in a court" to judicial
review under the APA. 5 U.S.C.A. § 704 (emphasis added); see also
Abbott Lab. v. Gardner, 387 U.S. 136, 139-41 (1967) (quoting § 704
and noting that Congress intended the APA’s "‘generous review pro-
visions’" to "cover a broad spectrum of administrative actions"), over-
ruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).5
To be sure, § 704’s broad coverage does contain an exception for
actions over which statutes expressly preclude judicial review. 5
U.S.C.A. § 701(a)(1). This exception is narrow, however, and
"[c]ourts will decline to review agency actions only upon a showing
that Congress clearly intended to restrict access to judicial review."
Hanauer v. Reich, 82 F.3d 1304, 1307 (4th Cir. 1996); see also Lin-
dahl v. Office of Pers. Mgmt., 470 U.S. 768, 778 (1985). SMCRA evi-
dences no such intent. To the contrary, Congress explicitly disclaimed
any intent to supercede or preempt statutes with potentially overlap-
5
We note that the D.C. Circuit has consistently applied APA standards
to rulemaking actions undertaken pursuant to SMCRA. See, e.g., In re
Surface Mining Regulation Litig., 627 F.2d 1346 (D.C. Cir. 1980); Nat.
Wildlife Fed. v. Hodel, 839 F.2d 694 (D.C. Cir. 1988). In contrast, the
authority on which the Secretary attempts to rely does not support her
position. Bennett v. Spear, 520 U.S. 154 (1997), evidences no intent to
excise a portion of § 704. See id. at 161-62 (observing that "the APA . . .
independently authorizes review only when ‘there is no other adequate
remedy in a court’" (emphasis added) (quoting 5 U.S.C.A. § 704)).
Bowen v. Massachusetts, 487 U.S. 879 (1988), addressed the application
of APA § 704 to special statutory procedures for review established by
specific agencies prior to the APA’s enactment. Although the Court con-
cluded that the APA’s general provision for review was not intended to
duplicate those special procedures, it cautioned that "[t]he exception that
was intended to avoid such duplication should not be construed to defeat
the central purpose of providing a broad spectrum of judicial review of
agency action." Id. at 903. The Court therefore rejected the argument that
the ability to seek monetary relief in the Court of Federal Claims under
the Tucker Act barred APA review, describing it as a "restrictive-and
unprecedented-interpretation of § 704." Id. at 904.
OHIO RIVER VALLEY v. KEMPTHORNE 9
ping provisions. See 30 U.S.C.A. § 1292(a) ("Nothing in this chapter
shall be construed as superseding, amending, modifying, or repealing
. . . any of the following Acts or with any rule or regulation promul-
gated thereunder, including, but not limited to [a list of mining and
environmental laws]." (emphasis added)).
2.
The Secretary argues that SMCRA impliedly preempts the APA
requirement to publish a written statement explaining the findings that
lead to the approval of a state program. We disagree. Although
enabling acts may prescribe specific procedures, they rarely provide
complete coverage. Instead, "in most administrative programs, the
general APA and the specific enabling act work in concert to provide
procedures and judicial review." 32 Charles Alan Wright & Charles
H. Koch, Federal Practice and Procedure 8133 (2006). As a result,
"[d]etermining the required procedures coordinates the general pre-
scriptions of [the] APA with the specific requirements of the specific
act." Id.The Secretary’s assertion that SMCRA, by specifically requiring
written notice to the State if and only if any of its proposed program
is denied,6 implicitly makes any explanation of the decision to
approve a state program unnecessary is unsupported. First, the obliga-
tion to provide detailed notice to the State, enumerating the problems
that lead to the disapproval of all or part of its program, in no way
conflicts with the APA requirement that the Secretary publish a rule
incorporating a statement of basis and purpose in the Federal Regis-
ter. A State whose proposed program has been rejected may resubmit
a revised version within sixty days, and this particularized notice
serves to assist the State in that regard. See 30 C.F.R. § 732.17(h)(8).
Second, SMCRA’s implementing regulations specifically provide that
"[a]ll decisions approving or not approving program amendments
must be published in the Federal Register . . . ." 30 C.F.R.
§ 732.17(h)(12) (emphasis added). This provision is consistent with
the APA’s notice and comment rulemaking procedures.
6
See 30 U.S.C.A. § 1253(c) ("If the Secretary disapproves any pro-
posed state program in whole or in part, he shall notify the State in writ-
ing of his decision and set forth a detailed reason therefor.").
10 OHIO RIVER VALLEY v. KEMPTHORNE
B.
We next briefly address the Secretary’s argument that the approval
of state program amendments does not constitute rulemaking for pur-
poses of judicial review because it does not involve the promulgation
of national rules and regulations. The APA defines a "rule" as
the whole or a part of an agency statement of general or par-
ticular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organi-
zation, procedure, or practice requirements of an agency and
includes the approval or prescription for the future of rates,
wages, corporate or financial structures or reorganizations
thereof, prices, facilities, appliances, services or allowances
therefor or of valuations, costs, or accounting, or practices
bearing on any of the foregoing
5 U.S.C.A. § 551(4). It defines "rulemaking" as the "agency process
for formulating, amending, or repealing a rule." 5 U.S.C.A. § 551(5).
This broad language compels the conclusion that rulemaking within
the meaning of 5 U.S.C.A. § 553 is not limited to the promulgation
of national standards. See also 30 U.S.C.A. § 1276(a)(1) (judicial
review provision referencing "action of the Secretary to approve or
disapprove a State program," "action by the Secretary promulgating
national rules or regulations," and "other action constituting rulemak-
ing").
Moreover, we note that the Secretary’s argument on appeal directly
contradicts OSM’s characterization of the action throughout the
administrative process. An agency engaged in rulemaking pursuant to
APA § 553 must "follow[ ] a three-step process — issuance of a
notice of proposed rulemaking, followed by receipt and consideration
of comments on the proposal, followed by promulgation of a final
rule that incorporates a statement of basis and purpose." Kenneth
Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise
§ 7.4 (3d ed. 1994). Here, the agency issued a notice of proposed rule-
making, received and considered comments, promulgated a final rule
incorporating a statement of basis and purpose, and then, after the
explanation contained therein was challenged as inadequate, argued
that the process did not apply. See West Virginia Regulatory Program,
OHIO RIVER VALLEY v. KEMPTHORNE 11
68 Fed. Reg. 67035-67045 (finding "good cause . . . under 5 U.S.C.
§ 553(d)(3) to make this final rule effective immediately"); West Vir-
ginia Regulatory Program, 68 Fed. Reg. at 44,910-44,913; West Vir-
ginia Regulatory Program, 66 Fed. Reg. at 28,682-28,685. It is
therefore clear that the Secretary was engaged in rulemaking pursuant
to 5 U.S.C. § 553.
C.
Having determined that the district court did not err in applying
APA standards, we turn to the question of whether the Secretary’s
approval of the amendments was arbitrary and capricious. See 5
U.S.C.A. § 706(a)(2)(A); 30 U.S.C.A. § 1276(a)(1). The arbitrary-
and-capricious standard directs the reviewing court to determine
whether "the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment." Marsh
v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (internal
quotation marks omitted). As the Supreme Court has explained,
Normally, an agency rule would be arbitrary and capricious
if the agency has relied on factors which Congress had not
intended it to consider, entirely failed to consider an impor-
tant aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a differ-
ence in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although the scope of review
is narrow, the agency must nevertheless "explain the evidence which
is available, and must offer a rational connection between the facts
found and the choice made." Id. at 43, 52 (internal quotation marks
omitted).
The Secretary does not personally approve state program amend-
ments, but rather acts through the Director of OSM. In this case, the
findings accompanying OSM’s approval of the proposed amendments
indicate that the agency based the decision to approve the deletion of
the "cumulative impact" definition exclusively on the absence of a
corresponding definition in the federal regulations, ignoring any
12 OHIO RIVER VALLEY v. KEMPTHORNE
actual effect that the change might have on West Virginia’s program.
West Virginia Regulatory Program, 68 Fed. Reg. at 67036 ("We
express no further opinion on whether or how the deletion of this defi-
nition may alter the current CHIA process in West Virginia, because
such procedural changes are within the State’s discretion under the
existing Federal regulations."). OSM recognized that this approach
was "different than the question of whether the deletion of the defini-
tion of ‘cumulative impact’ may alter the existing CHIA process in
West Virginia in a way that is adverse to some commenters’ inter-
ests." Id. The "interests" to which that statement refers are presumably
the environmental protection concerns asserted by OVEC, USFWS,
and to some extent, EPA. Thus, OSM acknowledged that the change
may have weakened the program, but did not explain why an amend-
ment with the potential to alter the CHIA process in a way that may
make it less environmentally protective is nevertheless consistent with
SMCRA’s minimum requirements. Instead, it avoided the question. In
doing so, it failed to provide a reasoned explanation based on the evi-
dence before the agency and ignored an important aspect of the prob-
lem. See State Farm, 463 U.S. at 43; NAACP, Jefferson County
Branch v. Donovan, 765 F.2d 1178, 1179 (D.C. Cir. 1985) (invalidat-
ing a Department of Labor regulation for failure to consider an impor-
tant aspect of the problem and provide a reasoned explanation).
SMCRA requires OSM to find not only that the amended program
contains counterparts to all federal regulations, but also that it is no
less stringent than SMCRA and no less effective than the federal reg-
ulations in meeting SMCRA’s requirements.
OSM used an identical justification in approving the "material
damage" definition, asserting that "there is no Federal requirement
that States must develop a specific definition of material damage,"
and as a result, "the proposed definition does not on its face negate,
supercede, alter, or conflict with any of the approved State rules
related to the CHIA process or their federal counterparts," making it
no less stringent than Federal regulations. West Virginia Regulatory
Program, 68 Fed. Reg. at 67036-37 (emphasis added). In doing so, the
agency essentially declined to analyze or review the definition at all.
Instead, it found that in the absence of a federal definition, any state
definition would warrant approval so long as it did not facially negate
a federal requirement. The APA procedures, however, are designed to
avoid that kind of rubber-stamp, and require more of the agency. The
OHIO RIVER VALLEY v. KEMPTHORNE 13
added definition made West Virginia’s proposed program different
than the nationwide program. OSM’s obligation is to analyze that dif-
ferent feature and explain whether and why the added provision ren-
ders the amended state program more, less, or equally effective
compared to the federal requirements. At a minimum, it must address
the potential effect of the amendment on the state program and pro-
vide a reasoned analysis of its decision to approve it.
III.
In sum, we conclude that the Secretary was required to comply
with the APA’s § 553 rulemaking procedures, and the district court
did not err in applying APA standards. We also conclude that the Sec-
retary’s failure to analyze and explain the decision to approve West
Virginia’s state program amendment rendered the action arbitrary and
capricious. We therefore affirm the judgment of the district court.
AFFIRMED