The appellants in this case, a group of operators in the coal mining industry, appeal from the United States Court of Federal Claims’ grant of summary judgment that certаin regulations that implement the Surface Mining Control and Reclamation Act of 1977 (SMCRA) reclamation fee do not violate the Export Clause of the Constitution. We affirm.
Background
This is the third opinion we have issued in this long-pending case. We explained the factual background in our previous opinion.
See Consolidation Coal Co. v. United States,
Disoussion
We review the Court of Federal Claims’ grant of summary judgment and determinations of our scope of remand without deference.
Old Stone Corp. v. United States,
In
Consol IV,
the Court of Federal Claims determined that “the Federal Circuit [in
Consol III
] аlready addressed and resolved the constitutionality of both the reclamation fee statute and its implementing regulations.”
Consol IV,
*1381
The Court of Federal Claims also found that even if we did not reach the issue explicitly in
Consol III,
we determined the issue by “necessary implication.”
Int’l Rectifier Corp. v. IXYS Corp.,
On appeal, Appellants argue that the Court of Federal Claims erred in de-tei’mining thаt our decision in
Consol III
determined the constitutionality of the regulations at issue. They point to the
Consol III
opinion that states “the only question before this court is one of statutory intеrpretation of 30 U.S.C. § 1232(a).”
Consol III,
The government responds that the Court of Federal Claims was correct; we considered the “application” of the statute and the “method” of collecting the reclamation fee; this is the equivalent of considering the implementing regulations. It also points out that in Consol III we cited the regulation in question аs part of our analysis. See id. at 1347.
We will address directly the parties’ arguments regarding the constitutionality of the implementing regulations. In Consol III, we held that the doctrine of constitutional avoidance required us to construe the phrase “coal produced” in 30 U.S.C. § 1232(a) to mean “coal extracted.” Id. at 1348. Appellants argue that although this definition applies to the statute, the regulations implemented by the Office of Surface Mining apply the fee to coal sold. As an example, appellants pоint to 30 C.F.R. § 870.12(a) - (b) (3) (iii) which states in pertinent part:
(a) The operator shall pay a reclamation fee on each ton of coal produced for sale, trаnsfer, or use, including the products of in situ mining.
(b) The fee shall be determined by the weight and value at the time of initial bona fide sale, transfer of ownership, or use by the operаtor.
Appellants argue that because OSM collects the reclamation fee at the time of sale, it is necessarily a tax on “coal sold” rather than “coal extracted” regardless of the meaning of the term in the statute.
On the other hand, the government argues that liability under SMCRA incurs at the time of extraction; the collеction of the fee is merely delayed until the time of sale, when operators typically weigh coal. The government argues that the time of collection cannot convert a constitutional tax or fee to an unconstitutional one, citing
Liggett & Myers Tobacco Co. v. United States,
Appellants respond that Liggett is not applicable because the coal extracted is not *1382 the same product that the operators later sell. They argue that between extraction and sale, certain impurities like oil and antifreeze may accumulate, 1 while the operators remove other materials like dirt and rock that comе along with coal as extracted. Although the extracted coal along with dirt and rock may be heavier— and thus subject to a higher fee — the appellants argue that this is the proper basis for the reclamation fee. The appellants also argue that this is a tax on sale rather than extraction because coal that an operator never sells will never be subject to the fee. 2
Appellants’ arguments in this appeal regarding the language of the regulation are muсh the same as those made in
Consol III.
Using the same canon of construction, the doctrine of constitutional avoidance, we hold that the regulations implementing SMCRA do not violate the Export Clause.
See Edward J. DeBartolo Corp. v. Fla. Gulf Bldg. & Constr. Trades Council,
The decision by OSM to delay collection of the reclamation fee to the time of sale simply “mitigate[s] the burden” on operators by not requiring the installation and use of weighing equipment at the time of extraction. Appellants’ arguments regarding the change in weight between extraction and sale are not persuasive. In Liggett, the Court did not differentiate between an organic product like tobacco that could change weight and other products that could not. We see no reason to do so here. 3 The liability incurs at thе time of extraction, and OSM merely collects the fee at the time of sale. The practice of stockpiling — holding product that never sells — should not change the result. If an operator extracts coal, but chooses not to sell it, it still incurs liability; the stockpiling simply creates a collection issue for OSM.
We hold that all оf OSM’s challenged regulations for collecting the reclamation fee under SMCRA, like the statute itself, apply to “coal extracted” and do not violate the Exрort Clause.
AFFIRMED
Notes
. 30 C.F.R. § 870.18 allows for deduction for excess moisture accumulated between extraction and sale.
. Our decision in
Consol III
addresses appellants' alternative arguments regarding
Drum-mond. Coal Co. v. Hodel,
. The government persuasively argues that the weight at thе time of sale, without dirt and rocks, is a more accurate representation of the amount of “coal extracted” than if the operators took the wеight at the time of extraction. We agree that it would appear contrary to our decision in Consol III to levy a fee on dirt and rocks as part of “coal extracted.”