CUMBERLAND RECLAMATION COMPANY, Plaintiff-Appellant, v. SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, Defendant-Appellee.
No. 90-5189.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 2, 1990. Decided Feb. 12, 1991.
III.
While the district court may well have been correct in its determination that net worth is not the best way to determine an insured‘s ability to absorb loss, the district court erred in determining that
W. Patrick Hauser (argued), Barbourville, Ky., for plaintiff-appellant.
Bruce T. Hill, U.S. Dept. of Interior, Office of the Field Sol., Knoxville, Tenn., Robert L. Klarquist, Evelyn S. Ying (argued), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendant-appellee.
Before JONES, Circuit Judge, and ENGEL and WELLFORD*, Senior Circuit Judges.
NATHANIEL R. JONES, Circuit Judge.
The purpose of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) is to reclaim and restore areas which have been harmed by coal mining.
Plaintiff-appellant Cumberland Reclamation Company (“Cumberland“) operates a dredging facility on the Cumberland River in Knox County, Kentucky. Cumberland has operated the facility since 1982 pursuant to permits issued by the Army Corps of Engineers. The facility consists of a floating barge equipped with a dredge pump. Water, coal, sand, and other solid waste is pumped up from the riverbed, and the coal is then separated from the other solid matter.
In April 1985, the director of the Lexington, Kentucky field office of the Office of Surface Mining Reclamation and Enforcement (OSMRE) informed Cumberland that it owed reclamation fees under the SMCRA. Cumberland then appealed to the U.S. Department of the Interior Board of Land Appeals (IBLA). On April 18, 1988, the IBLA affirmed the decision of the OSMRE. On appeal, the U.S. District Court for the Eastern District of Kentucky granted the Secretary of the Interior‘s motion for summary judgment, and affirmed the judgment of the IBLA. The district court also ordered Cumberland to pay $13,338.45 in reclamation fees, plus interest and penalties. This appeal followed.
I
Interior Department regulations do not expressly authorize judicial review of IBLA decisions.
Cumberland first contends that it should not be required to tender the reclamation fees because underwater dredging is not “surface coal mining“. The IBLA, in a 7-2 en banc decision, concluded that Cumberland‘s dredging operations were “surface coal mining” under the SMCRA, and therefore subject to the reclamation fee.1 The IBLA declared that “[a]s a general rule, any dredging operation which recovers coal from a body of water is a surface mining operation under SMCRA and, as such, requires the payment of the appropriate reclamation fees.” J.App. at 8.
Cumberland argues that its dredging operation does not constitute “surface coal mining” under the SMCRA. The Secretary, however, points to the broad definition of “surface coal mining operations” in the SMCRA: “activities conducted on the surface of lands in connection with a surface coal mine [and] the areas upon which such activities occur or where such activities disturb the natural land surface[.]”
The district court and the IBLA also relied on the only two cases to have considered this issue: United States v. H.G.D. & J. Mining Co., 561 F.Supp. 315 (S.D.W.Va.1983), and Brentwood, Inc., 90 I.D. 421 (I.B.L.A.1983). In Brentwood, the IBLA examined the legislative history of the SMCRA and found convincing evidence Congress intended river dredging for coal to be treated as surface coal mining under the SMCRA. 90 I.D. at 424.
In H.G.D. & J., the mining company argued that the dredging of coal from underneath a river did not constitute “coal mining operations” under the SMCRA because the Act only applies to surface mining. The court held that river dredging was clearly coal mining under the SMCRA because the dredging “was conducted at a place where, and upon a parcel of land from which, coal, a mineral, was found and extracted from the earth by excavating in the bed of the river, all of which was conducted from the earth‘s surface[.]” Id. at 322. In H.G.D. & J., the district court stated that
Obviously the [phrase “surface of the lands” in
30 U.S.C. § 1291(28) ] means the surface of the earth, including the waters thereon, in the areas described in those definitions, else all lands would be subject to the provisions of the act, but the waters within those boundaries would not be so subject, and the same would hold true as to the lands within any State. Such an absurd result could not have been intended, particularly since one of the purposes of the Act was to reclaim waterways despoiled by coal mining prior to the Act‘s effective date and prevent despoliation resulting therefrom after that date. The term “surface lands,” as used in the Act, clearly means the surface of the earth, including the waters thereon, to distinguish “surface coal mining operations” from the underground ones. Thus, defendant‘s dredging operations were activities conducted on the surface of lands from whence defendant extracted coal.
Cumberland attempts to distinguish H.G.D. & J. by stressing that the mining company in that case made excavations into the natural river bottom. Cumberland emphasizes that its operation “does not penetrate into the natural river bottom but
In any event, we find that the distinction between a dredging operation that penetrates the riverbed, and a dredging operation that does not penetrate the riverbed, is without significance. This argument was rejected in Brentwood, 90 I.D. 421 (1983). Brentwood noted that the definition of “surface coal mining” in the SMCRA lists various types of mining “including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining[.]” 90 I.D. at 423 (quoting
Since 1982, Cumberland has dredged more than 20,000 tons of coal from the bottom of the Cumberland River. The purpose of the SMCRA is to redress any deleterious environmental effects of Cumberland‘s long-term dredging of the riverbed. This purpose could be thwarted if the proposition that underwater dredging for coal is not covered by the SMCRA were accepted. Therefor, we find that dredging should be considered surface mining under the SMCRA.
II
Surface coal mining activities may be exempted from the SMCRA if either the two-acre exemption or the incidental mining exemption is determined to apply. The statutory basis of the two-acre exemption is section 528 of the SCMRA, codified at
In assessing Cumberland‘s arguments in regard to the claimed exemptions, the district court stated:
In its pleadings before the IBLA, although it bore the burden of proof on entitlement to exemptions, Cumberland never substantiated its assertions, and the IBLA found for the government in a summary proceeding. The IBLA based its decision on the absence of any factual questions. The government presented uncontroverted evidence that Cumberland‘s operations covered more than two acres, and there was no evidence at all concerning the percentage of coal extracted.
J.App. at 143-44.
We find that the IBLA‘s determination that Cumberland‘s operations affected more than two acres was based on the substantial evidence. Cumberland also argues that it is entitled to the incidental mining exemption, and attempts to put forth an affidavit stating that sand production is 88% and coal production is 12%. Even ignoring the fact that this court must
III
Cumberland‘s final argument is that the IBLA‘s summary decision without a fact-finding hearing denied it due process of law. Cumberland‘s argument is that the issue of the two exemptions is a factual matter which, because of the questions raised by its affidavits, can only be resolved by a hearing.
The IBLA‘s denial of Cumberland‘s request for a hearing was discretionary.
IV
For the foregoing reasons, the district court‘s grant of summary judgment in favor of the Secretary is AFFIRMED.
WELLFORD, Senior Circuit Judge, dissenting:
Paragraph
activities conducted on the surface of lands in connection with a surface coal mine ... including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining.... [P]rovided, however, that such activities do not include the extraction of coal incidental to the extraction of other minerals.
We are concerned with whether Cumberland, which operated a dredging facility on the Cumberland River, was conducting “surface coal mining operations” in dredging the river bottom for coal, sand, and gravel under the meaning of the Act. The Act makes no mention of dredging on the water for coal. I agree with that portion of the opinion in United States v. H.G.D. & J. Min. Co., Inc., 561 F.Supp. 315, 319 (S.D.W.Va.1983), which states that “the Act‘s provisions are indeed unambiguous.”
Since we are construing an “unambiguous” statute, we must decide the applicability and interpretation of that statute de novo. Also, as stated in H.G.D. & J. Min. Co., 561 F.Supp. at 319, in such a situation “our starting point for discerning congres-
The statutory language under consideration begins with the word, “surface.” Webster defines this as “one or more of the faces of a three-dimensional thing: a plane of a solid < the uneven of the earth > < on the of the water > ... the outward appearance or characteristics of something.” Webster Third New International Dictionary. This captures what is in my mind‘s eye in viewing “surface“—the appearance of the surface or outer plane of land or earth which is different from the surface of water.
Next, we look at the word, “mining,” described as “the process or business of making or working mines.”3 Webster, supra. The statute is intended to protect from destruction or “diminishing the utility of land.”
The definition in the statute of usual or common means or methods of “surface coal mining operations” all relate plainly to land operations, not dredging operations over water. Even if all the ways described in
Only one court has considered this problem of statutory interpretation. H.G.D. & J. Min. Co. was decided by a district judge and important to that court‘s decision was its analogy of dredging operations to “placer mining,” an analogy I find unpersuasive, being tied to the concept of “reclaimed coal” (“coal recovered from a deposit that is not in its original geological location.” Id. at 324). The decision in H.G.D. & J. Min. Co., moreover, was based upon stipulations that went into considerable detail not covered in the case in controversy. Brentwood, Inc., 76 I.D. 73 (1983), followed H.G.D. & J. Min. Co. and also relied upon the legislative history of the Act, rather than the plain, unambiguous language therein, as did the district court.
We do not look first to the legislative history. Instead, we apply the well known rule that statutory construction begins with the plain words of the statute. In re Revco D.S., Inc., 898 F.2d 498, 500 (6th Cir.1990). Only if we determine the language of the statute is ambiguous do we turn to the legislative history. United States v. Barry, 888 F.2d 1092, 1093 (6th Cir.1989).
We are free to make our own reasonable and sensible construction of the Act even if we give some deference to the administrative agency. I would hold that surface mining operations do not include dredging over water. I would therefore reverse both the administrative and district court decisions for the reasons that they are “not in accordance with law.”
For the reasons stated, I would reverse the decision of the district court. In the alternative, under the circumstances, I would remand to the administrative hearing to enable Cumberland a fair opportunity to establish its claimed exceptions exemptions.
NATHANIEL R. JONES
CIRCUIT JUDGE
HARRY W. WELLFORD
SENIOR CIRCUIT JUDGE