National Coal Association v. Donald P. Hodel, U.S. Secretary of the Interior

PURPA, to sell ing of section 210 of elec- lowed study careful of the relationship be- tricity utility wholesalers rather than to Oglethorpe tween and the EMCs. The local distribution the wholesalers’ utilities. Commission also considered the interests of request The Commission denied the for particular parties adverse like Greensboro. rulemaking, explaining part such that The exception result is an to an otherwise purchase obligation is a stat- applicable general “[s]ince carefully rule crafted to utory requirement, did the Commission not particular fit circumstances. implementing it in the final rule Sec- waive 49,031.

tion 210 of PURPA....” Id. at III. Conclusion reject argument We Greensboro’s Section 210 of PURPA does clearly not represents “original Colorado Ute inter- bar granting Commission from pretation” now of section 210 abandoned Oglethorpe waivers request- and the EMCs by the The utilities in Commission. Colo- ed. Because the Commission reasonably general request rado made a Ute interpreted section 210 to allow such waiv- exempt general a Commission them from depart ers and did any prior inter- requirement imposed by section 292.303. pretation, we follow the rule of Chevron challenges Here Greensboro Commis- and affirm the Commission’s decisions. statutory authority grant sion’s a re- So ordered. quest for waivers of section 292.303 as applied particular to a situation. While the Ute,

request request in Colorado as a

rulemaking, exempted would have a class purchase

of electric utilities to which the

regulation applied, request otherwise case, request

for waivers in this as a

adjudication, applies only Oglethorpe 61,284 Oglethorpe and its EMCs. See I at ASSOCIATION, NATIONAL COAL et (waiver regulations “permit only waivers al., Appellants, respect to individual utilities based on showing by applicant designated

a standards have been met. Waivers en HODEL, P. Donald clearly contemplated masse ... [were] Interior, et al. by Congress.”). No. 85-6090. significant This is not because of the Appeals, United States Court of еxempted through of utilities number one District of Columbia Circuit. other, procedure compared to the but be- adjudicative preserves cause decision a Argued Oct. general purchase rule in favor of the Aug. Decided requirements sale of section 292.303 that only particular- can surmounted after showing agency.

ized before the The rule-

making rejected route in Colorado Ute rule, general discarded the reasonably Commission reads general exemption of a

section favor

from it. concretely

This case demonstrates how interpretation

the Commission’s of section requires case-by-case determinations general rule in favor of section 292.-

303 should be waived. The Commission’s grant sought

decisions the waivers fol- Simonds, D.C., Washington,

Jerome H. Levin, Levy, Harvey with whom Arnold A. Lopatto, Altmeyer, John S. III and Thomas appellants. were on the brief for Snel, Justice, Atty., Dept, Dirk D. D.C., Washington, Jacques with whom B. Gelin, Atty., Dept, of Justice was on the appellee, brief Interior. Princeton, Jr., along similarly three Washington, swap: Carpenter, H. Russell (Dartmouth charitable institutions Hart оn the situated

D.C., Laird with whom School, and College, Vermont Law Rocky Ener- appellees, Mountain brief Center), Sloan-Kettering Cancer would sell Co., gy et al. holdings ‍​​‌‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​​​​​‌‌‌‌‌​‌​​​​​‌​​‌​‌‌‍Rocky Moun- their Grand Teton WALD, Judge, Chief Before Co., Energy private energy develop- tain WILL,* WILLIAMS, Judge and Circuit company; company ment turn Judge. District Senior exchange them for federal coal lands Canyon, Wyoming Rocky area. Corral Per Curiam.** Opinion for the Court already Mountain owned several tracts These were alternate sections of a there. Concurring Opinion by filed Circuit checkerboard, products of the federal Judge WILLIAMS. nineteenth-century government’s program PER CURIAM: stimulating development rail for Policy 206 of the Federal Land Section Rocky Mountain’s consolidation of West. (“FLPMA”), Management Act of 1976 and govern- its Corral tracts with the (1982), authorizes the Sec- 43 U.S.C. § yield large contiguous ment’s would tract dispose of a retary Interior to “tract of the mining. more suitable for economical by therein or interests ... public land Moreover, proximity of the Corral Can- public interest exchange ... where yon tracts to rail facilities owned Union by making that ex- served will be well Company (Rocky Moun- Pacific Railroad The Coal Associa- change_” National through parent, tain’s affiliate a common Mining and Reclamation Coun- tion and the give Corporation) Union Pacific challenge propriety cil of America Rocky special advantages. cost Mountain First, grounds. exchange on two every one such proposed swap The met the needs of leasing on coal they argue involved, that restrictions providing Princeton with party 2(c) 37 of the Mineral surrendering and contained the cash it needed without §§ (“MLA”), use; Leasing creating of 1920 30 U.S.C. bequests Act to commercial addi- (1982), exchange. рroscribe parkland tional at no cash cost to the feder- §§ Second, Secretary, government; facilitating Rocky they contend that the al interest, public development failed to Mountain’s of its checker- survey his coal. issues” as board consider certain “competitive closely as he should have. We hold that proposal depended upon the Secre- standing to raise both issues

plaintiffs have exchange authority his tary’s exercise of but lose on the merits. Receiving 206 of FLPMA. a fa- under § from the Bureau vorable recommendation

I. BACKGROUND (“BLM”), Management the Secre- of Land propos- comment on the tary Princeton invited 1980 and Univ- Between Fed.Reg. al, respons- bequests private- ersity received several 40,912 including or- those from environmental ly owned land located within bound- es— several Wy- ganizations, the Governor and Teton National Park aries of Grand Wyo- agencies Wyoming, and the entire Te- oming. In order to convert its Grand cash, ming congressional delegation over- holdings into Princeton offered ton —were whelmingly favorable. National Park Service. them for sale to the rejected Princeton’s offer for The Service col- associations whose Plaintiffs —trade lack of funds. produces membership most lective one other firm were attracting nation’s coal—and Equally a suit- unsuccessful objec- They raised the two among sole dissidents. purchaser conservationist able here, Secretary and the posed three-way tions groups, Princeton conceived ** * Judge Judge Part III and Wald authored North- Chief Of the United States District Court for the Illinois, designation sitting by Parts I and II. ern District of Williams authored 294(d). pursuant to 28 U.S.C. (on motion summary District Court (1982)) (emphasis added). judgment) successively rejected them. Na- Nevertheless, plaintiffs contend that Hоdel, Association v. tional Coal 617 MLA implicitly limits 206 of FLPMA. (D.D.C.1985). F.Supp. 584 We address the A. Standing MLA and claims in FLPMA turn. government challenged plain II. THE MLA tiffs’ standing only footnote, in a Brief for at 18 n. to which 2(c) broadly prohibits Section of the MLA never responded. this Since court must grant of federal coal leases to common- satisfy itself that it jurisdiction, how carrier railroads: ever, we address the issue without the ben corporation No company or operating a efit argument parties. given common-carrier railroad shall be or permit hold a provi- or lease under the alleged Plaintiffs' injury stems from sions of coal de- [the MLA] their members’ status competitors “as posits except its own use for railroad [Rocky Complaint 40, at Mountain].” purposes.... Appendix (“J.A.”) Joint at 40.2 The ex- (1982). change, they allege, 30 U.S.C. 202 nips Rocky The restriction allows § Moun- potential economically certain tain large bud violаtions mine a tract of previously land, so-called “commodities clause” of unminable thereby the Inter- threat- Act, ening plaintiffs’ state 49 Commerce 10746 members with rigor- § (1982), prohibits competition. interstate ous rail carri- ers transporting “an article or com- plaintiffs’ allegations Since competi- modity manufactured, mined, that ... is or tive threat undoubtedly satisfy constitu- produced by the carrier or under its author- standing tional requirements, see Clarke v. ity....”1 2(c) Section by reinforced — Securities Industry Association, U.S. MLA, 37 of the which makes the MLA -, 750, 5, 107 S.Ct. 754 n. 93 L.Ed.2d 757 disposing exclusive means of federal (1987); Investment Company Institute v. lands, subject qualification to a Camp, 401 U.S. 617, 620-21, 1091, 91 S.Ct. specifically very includes the authority un- 1093-94, (1971), 28 L.Ed.2d 367 we address der which the acted here: only prudential standing under 10§ deposits of coal ... herein referred [T]he the Administrative Procedure Act to ... shall subject disposition only (“APA”), (1982).3 5 U.S.C. 702 That in- provided form manner in this quiry proceeds рarts. in two First we must Act, except provided as in sections 206 plaintiffs determine whether are “arguably and 209 of Policy the Federal Land and within the zone of protected interests Management Act of 1976.... regulated by” or the MLA. Association of 66-146, 37, Pub.L. No. 437, 41 Stat. 451 Data Processing Organizations, Service (1920), as amended 95-554, Pub.L. Camp, Inc. v. No. 150, 153, 397 U.S. 90 S.Ct. 4, 2073, (1978) 92 (codified Stat. 2074 827, 830, (1970). at 25 L.Ed.2d 184 The Su- plaintiffs’ suggests 1.While brief the ex allegation we find competi- Since change "set in standing motion a tive violation of the Com suffices to establish under MLA, Clause," A, Appellants plain- modities we need not they address whether Brief at allegation tiffs’ injured that their argument members are advance Rocky no as to how Moun potential "as bidders the Corral mine, ownership alone, tain’s standing of a coal tract,” 40, Complaint supplies at at J.A. possibly Further, could violate that clause. standing. alternative source of commodities does clausе not extend to articles owned a carrier’s affiliate unless it is an alter satisfy here Plaintiffs all elements of associa- ego. Elgin, United v. States Joliet & Eastern standing long so tional standing. their members as have Co., Railway 501-04, 298 U.S. Washington Apple See Hunt v. State 843-44, (1936). 80 Accordingly, L.Ed. 1300 we Commission, Advertising 342-43, take the references as merely intended to show 383 L.Ed.2d For background strength poli therefore, simplicity, federal occasionally we will dis- cy 2(c). associated §with plaintiffs’ they cuss interests as if were identical companies. those individual Smith, Aulock v. Von merits. recently articulated ‍​​‌‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​​​​​‌‌‌‌‌​‌​​​​​‌​​‌​‌‌‍the test Court preme Cf. “ (D.C.Cir.1983). 176, 185 Since ‘Con- as follows: legislated against gress arguably this where the as In cases one] [such competition [plaintiffs to chal- seek] subject itself the is not plaintiff ” lenge,’ plaintiffs have asserted an inter- action, the de- regulatory test contested plausible relationship “a est that bears plaintiff’s if thе right of review nies a Clarke, policies underlying” the MLA. or marginally related to are so interests (quoting Investment Com- 107 S.Ct. at 759 implicit in purposes inconsistent Institute, pany at 91 S.Ct. at reasonably be that it cannot the statute 1094). enough. That is per- Congress intended assumed suit. mit the factors, appear any such as Nor do there Clarke, If we find that 107 S.Ct. at 757. Block, 345-51, 467 U.S. at existed the MLA’s zone of fall within “fairly at that make discerni- S.Ct. interests, then examine whether we must congressional in the MLA “a intent to ble” “ ‘fairly discernible’ MLA exhibits [plaintiffs’] preclude review behest.” preclude review at congressional intent to Clarke, Plaintiffs, at 759. there- S.Ct. Thus, Id. at 759. even behest.” fore, standing to assert their chal- [their] prime among a statute’s plaintiffs who are lenge based on the MLA. if, standing for in- lack will

beneficiaries se- stance, of such suits would allowance B. The Merits scheme. administrative verely disrupt the merits, argument On the Community Block (citing at 757 implausible evеn the absence of would be 348, Institute, 340, 104 467 U.S. Nutrition (added 1978) exception in for explicit 37’s § (1984)). 2455, 2450, 270 81 L.Ed.2d S.Ct. of FLPMA. Section transfers under 206 § 2(c) provides legislative history of § slightest not the allusion 206 itself makes locating plaintiffs a sufficient basis MLA restrictions. Plaintiffs any of the It enacted protected zone. within its plain suggest adherence to the mean if railroads were allowed of fear “that out produces an “unreasonable ing of 206 § they discriminate mines to own coal “outright of is in controversion result” and competing coal against transportation in 2(c) Ap Brief for 37....” §§ [MLA] transporta- rail depended on mines which absurdity at 18. We see neither pellants Public Northern Indiana Ser- tion. ...” language. plain in nor contradiction Co., 799 County Coal vice Co. v. Carbon schemes for dis Congress has erected two Cir.1986) 265, (7th 271 [hereinafter The leas of federal coal interests. position Cong.Rec. see ]; 58 4739 cited NIPSCO as every potentially applies to ing scheme LaFollette).4 (remarks (1919) of Sen. hedged with lump federal and is of pro FLPMA 206 of restrictions. Section question whether open It (includ only of lands disposition vides for 2(c)’s encompasses leases to prohibition § entities; NIPSCO, lands) sought by other ing coal 799 F.2d railroad’s affiliate. return, those entities must offer complaining of ad but parties at 270-72. But suit especially are government tracts that pre obviously need not error ministrative approxi ownership and of for federal interpretation able statutory on all issues of vail scope of Thus the mately equal value.5 standing; were in order to establish circumscribed, and each 206 is far not so, interests test would the zone of § unique government exchange affords the duplicate the merely implicate but would 206(b) provides the val- that where § FLPMA purposes the com- 4. For evidence of similar they equal, exchanged clause, lands are ues of the United States v. South modities see Buf- money," by payment 771, 793-94, equalized Co., "shall Railway 68 S.Ct. U.S. 333 falo payment' J., can the 868, 879, (1948) no circumstances (Rutledge, but under L.Ed. 1077 92 Co., per centum of the total value 25 Reading "exceed dissenting); 253 United States ownership." Federal 26, 60-61, out of ... transferred L.Ed. 760 lands 64 1716(b). § U.S.C. 43 528 fungible Congress cash.

land rather than situations where no substantial mineral naturally seen these two fea value is could involved. obviating any subject need to

tures as Cong.Rec. 33,282 124 (October 3, 1978). restriction. exchanges to the MLA Rep. Kazen’s remark makes sense as a partial explanation 1976, amendment’s ref- adoption of FLPMA Con- After FLPMA; erence to 209 of it could not gress § evidently realized 37 § have been intended to cover 206. Section § MLA could raise doubts about Secre- 209 requiring starts convey- exchange “[a]ll tary’s authority to coal lands un- ances Secretary, exceрt those Accordingly, Congress der 1978 § involving exchanges land provided for in except exchanges amended 37 to such § FLPMA], 206 of shall reserve to the [§ explicitly, limiting the clearest lan- § ” United States all minerals in the lands.... guage imaginable: The MLA was exclusive 1719(a) (1982) (emphasis U.S.C. add- § “except provided as sections 206 and 209 ed). proceeds It except prohibi- from the No. of” FLPMA. Pub.L. conveyances tion of federal mineral inter- (codified (1978) at 30 Stat. 2074 ests government where the federal does 193). language job, If did do surface, (1) not own the if either “there are none could. (2) no known mineral values in the land” or legislative history Plaintiffs invoke in federal rights retention of mineral quest to construe the 1978 amend thwart a more beneficial nonmineral land ment into oblivion. But this is one of those 1719(b)(1). use. Id. § “clarity [Congress’s] cases where Even as to the Kazen comment is language legislative ... makes resort incomplеte, as it overlooks the second type history unnecessary unavailing.” In finding that would authorize a mineral dependent Community Bankers Associa grant. entirely It also explain fails to tion v. Board Governors the Federal 206. Whatever the reasons for its incom- (D.C. System, Reserve 820 F.2d pleteness,6 legislator’s remark that men- Cir.1987)(citation omitted); see also Cami tions one function or effect an enact- States, netti v. United 485- negate ment cannot statutory language 192, 194-96, L.Ed. that establishes others. See Consumers (1917), quoted in United States v. Dick U.S., FTC, 417, Union Inc. v. 801 F.2d 751, son, (D.C.Cir.1987)(per 816 F.2d 752 (D.C.Cir.1986); Meese, 421 Block v. 793 curiam). 1303, (D.C.Cir.1986). 1310 The Kazen doubts, however, To resolve we con- smoking gun, remark is no nor even a legislative history sider the item of pistol. give water We the words of 37§ plaintiffs appear regard smoking to as a meaning. their full gun. It consists of a statement on the 206(a) Kazen, III. FLPMA by Representative House floor the § chairman of the subcommittee that con- above, 206(a) As noted of FLPMA au- § sidered the 1978 amendment: Secretary dispose thorizes the to aof purpose

The of the ... amendment public land or interests therein [1978 “[t]ract permit the is to the exchange. by § ... ...” MLA] U.S.C. Secretary to problems 1716(a). assessing interest, resolve land title In § created such mineral in reservations must possible ly (formerly 6. One ‍​​‌‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​​​​​‌‌‌‌‌​‌​​​​​‌​​‌​‌‌‍reason is § 206 was essen- owned land. Id. codified § 8 at 43 tially exchange authority 315g(d)); Dredge a Corp. recodification of un- § U.S.C. see v. Husite 1934, Co., 69, Taylor denied, Grazing der 8 of Act of 78 Nev. 369 P.2d cert. 8, Pub.L. No. 48 Stat. 1272-73 83 S.Ct. 9 L.Ed.2d 61 It (re- (formerly 315g(b)) perfectly Rep. codified at 43 was natural for Kazen to focus on 1976). pealed by Taylor containing FLPMA Act had the feature of the 1978 amendment already accomplished (the partial repeal novelty ability of MLA to sell some element of cer (but by expressly authorizing requir- § ing) tain mineral interests under 209 without com government MLA), plying tо "make rather than on one that reservations with the exchanged private- confirmatory. primarily minerals" when it federal for was Corporation Act the Bank Service Federal Act and to better consideration give full of State management ‘apparent’ and the needs and that ‘those whose inter- land including needs for people, local and affected or directly are broad ests community ex- economy, lands for easily of the Acts are interpretation narrow ” fiber, areas, food, recreation pansion, Id. n. 14. identifiable.’ minerals, fish and wildlife. determining plaintiffs’ In whether public-inter- argue that the Plaintiffs test, zone of “we passes claim interests Secretary “to requires est standard considering limited to the statute are not competitive issues significant consider sued, respondents but under which exchange.” Brief for with this associated helps us to un any provision сonsider at 35. Appellants Congress’ purposes....” derstand overall Standing A. Clarke, case, at 758. In this it compet- no doubt We have FLPMA, beyond profitable to look seems allegations are sufficient threat itive meaning “public of the term flesh out the standing requirements. meet constitutional the coal application its interest” and Clarke, 107 S.Ct. at Glass See, e.g., earlier, industry. Congress As we noted Regan, 737 F.2d Institute Packaging responded expressed apprehension, and (D.C.Cir.1984). we Thus coal-owning legislation prevent, standing prudential directly to turn discriminating transporta railroads from APA, “zone of interests” and the under the against competing coal mines. See tion particular. inquiry 202; NIPSCO, 799 F.2d at 271. U.S.C. § recently ex- Court has Supreme Congress prohibited interstate Similarly, of interests” test “zone plained the transporting railroads commodities APA.7 review under the judicial context of under their control. produced оr mined stated: The Court (“commodities clause”). 49 U.S.C. § is a guide interest test The zone of whether, Congress’ deciding view itself, Congress incorpo In FLPMA agency pre- action to make intent evident prior pronouncement by reference its rated reviewable, plain- particular sumptively that it was the complain of a be heard tiff should continuing policy of the Federal Govern- The test agency decision.... particular encourage pri- ment ...to foster especially demand- not meant to be development enterprise vate no indi- need be ing; particular, there economically and stable do- sound purpose congressional to bene- cation mining ... minerals indus- mestic [and] plaintiff. fit the would-be tries, orderly and economic in] [and (footnotes and Clarke, at 757 re- domestic mineral development of added). omitted; emphasis citations of ... miner- reservеs sources [and] in a emphasized the clause amplified Court indus- assure help als to Process- explaining that Data satisfaction of footnote, in trial, environmental security and “the that ing, supra, it had been sufficient needs.... Bank implicit in the general National policy carefully analyze ac- what may of need to emphasized this that articulation

7. Court contemplated creating Congress in that particularly tions test one of interests the zone Ash, APA, (citing Cort v. brought as the of germane under the cause 66, action. to cases also gloss 26 Colorado, See usefully on 45 L.Ed.2d understood as a was "most test —Inc., Clarke, meaning Cargill, 758 n. 702.” Inc. § of the Monfort of -, speak beyond 427 purport 93 L.Ed.2d not to S.Ct. Court did 107 16. The seeking injunction provi- plaintiff brought "generous (1986) (holding the review that under cases APA, Processing, (quoting Clayton Data an the id. Act 16 must § sions" of under 831), designed act to be to S.Ct. at type U.S. at 90 laws were 397 antitrust "of the the pur- ICC, "serving ..."); a broad remedial 819 Transport as Ass’nv. prevent construed pose.” Water Processing). (quoting (D.C.Cir.1987) Data 755 (noting Id. at that 1192 only shippers Staggers Act "authorizes of brought adjudicates un- a case court When a attacks"). ports to launch substantive statutory private right it specific action of der a (emphasis added).8 21a gress Wheth in which the possibility was discussed Congress er the Secretary or not intended leasing “the of federal coal to rail- specifically to consider the effects of each any roads—indeed participation in the coal proposed exchange (as on competition industry by railroads —would have an anti- claim), this language would suf competitive effect.” Report, 62; at bring fostering competition fice to J.A. 348. The Department Justice noted “arguably” least within zone of inter that under conditions, certain if sought protect. ests that FLPMA to Com the railroad were acquire to an interest petition expected can be help satisfy to industry, coal it would find then it “security” “industrial” and needs and move profitable to restrict the amount of coal economy efficiency, toward satisfying transported. By doing so it would drive “industrial needs” at the lowest cost in up price case, and in this it resources; competitive production efficient in share profits. increased coal security should in turn enhance by improv Id. at J.A. 349. In the coal industry, ing competitive position of domestic procompetitive interests include only in international firms While markets. this competition among companies, coal but also any said product, mineral its competition among between and coal com- importance unusually is obvious for a vital panies and the railroads that carry their energy source such as coal. 30 U.S.C. Cf. production to market. (defining 21a coal). “minerals” to include Plaintiffs’ complaint alleges, Procompetitive among interests oth- thus fall within er things, that the Secretary protected Plaintiffs, course, zone. Interior failed to consider can come “whether within the zone defendant of interests at [Rocky Mountain arguably protected Energy’s] acquisition least FLPMA, fee of the Corral without “indication coal congressional ... would expand purpose to defendants Clarke, benefit” them. RME’s and Pa- [Union S.Ct. ability at 757.9 Railroad’s cific] discriminate against competing plaintiff, non-railroad Department required Justice is producers setting rates and making report annually Congress on the state of hopper-car allocations.” J.A. 27. Plain- competition industry, the coal 30 U.S.C. tiffs’ comments filed proposed to the ex- report and its 1980 light sheds on change, incorporated as an exhibit to the relevant concerns.10 In substantial complaint, describe the feared scenario part, report is potential devoted to the further: competitive problems associated with leas- ing coal to railroads and their producer affiliates. non-railroad would be sub- report This up followed jected information possibility to the that its carri- rail Department Justice report to Con- er would: 1701(a)(12) abo 43 (announcing U.S.C. § likely “most to frustrate than fur- policy "public managed lands be in a man- statutory objectives.” Clarke, ther 107 S.Ct. at recognizes ner which the Nation's need for do- 756 n. 12. sources public mestic of minerals ... from case, however, In this we do not face such a including implementation lands of ... 30 U.S.C. quite concern. It thing say is a different pertains lands”). § 21a ... as it to the competitor's attempt competition to diminish by excluding pro- a new entrant inimical quite The situation in this case is different concerns, competitive plaintiff and that a company which a coal sues to complain company completely dependent advantage e.g., transporta- — — economy scales of regulatory only or region tion on decreased railroad in the —will costs—obtained another complain non-railroad coal heard to of administrative action company as a result of a or lease. sale In ability further that railroad's to dis- case, aggrieved party such against be a setting criminate it in transportation competitor alleging injuries only that stem from terms. competition, increased ing surpris- and it general Justice, "public Dept, indeed if Competition 10.See interest" considera- encompass (1980) (“1980 tions would be read competi- Industry to Report”); anti Coal J.A. 283- goals. Allowing tive go such a suit to forward 393. (a) region Canyon contract service mecha- Fork Corral Use the where is locat- ed, 24, impor- J.A. and because of produced by railroad relative to favor coal nism Pacific tance of the Union Railroad in the produced non-railroad coal. entities over id., transportation system, national the fee (b) capacity expansion of tract Refuse exchange ability injure will enhance its to compa- areas where non-railroad to serve plaintiffs.11 They do not seek from this producing competition in with nies were court, however, a determination of whether coal; or railroad Railroad the Union Pacific could or would (c) or make unsure the trans- Decrease engage anticompetitive in such activity.12 portation of non-railroad coal to markets. FLMPA complaint thrust Report 73-74. The 1980 confirms that J.A. 206, requirement is that circumstances, a railroad under certain served,” “public interest ... be well includ- profitable engage to in such could find it ing competitive the consideration im- behavior. anticompetitive Report, ignored. was pacts, Whether in fact 322-23, 35-36, 63-65; 349-51. at J.A. exchange Corral fee was contrary that, alleged because of Plaintiffs have question to the is a interest for the position of defendant monopoly plaintiffs Union merits.13 in our But view are question.14 in Pacific Railroad the Green River-Hams entitled to raise that 163; regardless Report, at 63-64 & n. J.A. conclude that of Union 11. Pacific's abili- Cf. (ability profits ty existing actually of railroad to shift from under conditions to transportation production against plaintiffs, allegations related to discriminate such owns). arguably amount of coal it are at least within the zone of interests of the FLPMA. fact, we could 12. In that is not a determination Clarke, (" 'Congress 13. Sеe 107 S.Ct. at 756 n. 13 reasonably record before make from the us. arguably legislated against competition had Although Report the 1980 does conclude that sought petitioners challenge, had power Union Pacific Railroad lacked market injury. from which flowed their ... [W]hether region River-Hams Fork because of the Green Congress prohibited competi- had indeed such availability cheaper coal from the Powder ”) question (quoting tion was a for the merits.’ 33, 320, region, also River id. at J.A. it conclud- Company Camp, Investment Institute v. Burlington ed that the Northern Railroad did 1091, 1094, 28 L.Ed.2d 367 power respect to Powder Riv- have market (1971)); ICC, Corp. General Chemical 38, cf. er coal. Id. at J.A. 325. But to the extent (D.C.Cir.1987) curiam) (per (describing F.2d 844 Burlington Northern exercises that market guidelines assessing ICC’s railroad market power by raising price the delivered of Powder application). dominance and their competitive оn Union River limitation Pacific’s behavior the Green River-Hams Judge deny plaintiffs 14. Williams would stand- region Report Fork The 1980 fur- diminishes. ing they to raise the FLPMA claim because any ability judge impact ther disclaimed 1980, failed to that defendant railroad has mar- Staggers Act of Pub.L. No. power ket in the relevant market. Plaintiffs did Stat. on rates or the envi- however, Moreover, allege, only that the defendant is the ronment. Id. at J.A. 358. merger in the market and will be able to use its report precedes railroad the 1982 of the Missouri engage position anticompetitive Corporation conduct Pacific and the Western Pacific plaintiffs. Company J.A. 27. We think that is Railroad into the Union Pacific Cor- vis-a-vis allegation potential poration. See J.A. 24. Thus the conclusions a sufficient purposes. drawn therein about ‍​​‌‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​​​​​‌‌‌‌‌​‌​​​​​‌​​‌​‌‌‍the Union Pacific Rail- zone of interests ability anticompetitively can- road’s behave thоugh as a matter of substantive anti- Even be, they not be determinative. Nor need since law, might justified inferring trust we not be stage only plain- our concern at this whether power monopoly the alone, of market existence allegations bring tiffs’ them within the zone of purposes meeting relatively for the interests of the FLPMA. test, undemanding zone of interests we should allega- Report certainly We also note concluded be entitled to infer a sufficient excluding firm railroads from federal coal leas- tion of market from claim that a ing anticompetitive, procompetitive, will now be enabled as a result of the chal- lenged monopoly position Department action to use its and that the Justice called for the If, 2(c) upon repeal Report, anticompetitive plaintiffs. harm §of of the MLA. See 1980 inflict however, agree, plaintiffs’ avoiding Congress, as we all interеst at J.A. injury arguably anticompetitive rejected comes within that advice and "at bottom the interests, congressional reviewability question zone of then the statute's turns Thus, Clarke, enough allege only factual infor- should need to intent.” we B. Merits They explained further 206 ex- changes hoc, were considered on an ad case, having In this concluded that case-by-case basis, and that the Teton ex- competitive are at arguably concerns least change proposed had been accomplish FLPMA, interests within the zone of we “an important public objective.” interest fact, need not whether in decide 206’s F.Supp. (“When See also 617 at 591 “public require interest” concerns through viewed practical a prism, nothing Secretary competitive impact consider the could be more in public interest: exchange. of each coal land The District Princеton and its sister institutions competitive receive Court concluded that concerns capital for their considered, health-pro- educational or sufficiently had been and we do viding ventures; parkland finding, see Grand Te- disturb that The infra. ton will remain Department unspoiled; Interior private of the has announced and a energy possible company that it henceforth will consider receives an land outside the consequences parks titrust of coal land ex national for commercial mining.”). changes, Fed.Reg. (1986); see 51 Secretary’s public interest determi- subpart question C.F.R. 2203. The involving nation is one variety factors, a requires whether the statute consideration weights the relative of which are left in his effects can await another discretion. We will not second-guess his day. conclusion that the exchange, Teton even explicitly District Court rejected after considering potential anticompetitive plaintiffs’ Secretary claim that had effects, public was in the interest. failed to exchange ensure that the coal land Accordingly, the decision of the District interest, public by neglecting to Court is give potential due consideration to the anti- Affirmed. competitive effects of the transaction: did, It is clear Secretary that here the WILLIAMS, Judge, Circuit concurring:

fact, proceed to potential consider the agree I with the the court’s conclusion in anticompetitive effect of the Corral Can- Part III that the District properly Court yon exchange, properly and he found dismissed 206(a) the claim under significant it was not enough to FLPMA, but would affirm for want of preclude a determination that the ex- standing rather than on the change merits. was in Even interest. here, my disagreement with the court is a 617 F.Supp. (D.D.C.1985). Ex- All narrow one. panel membеrs of the amination record confirms that the agree procompetitive concerns are “ar- plaintiffs’ indeed addressed ob- guably” with the protected zone of inter- jection exchange would have “ad- ests, anticompetitive while ones are not. verse competitive impacts on the in- Thus, plaintiffs allege potential must in- dustry.” Management Bureau of Land De- jury anticompetitive from some feature of 3; cision of June J.A. 213. the Secretary’s action. My sole area of Department Interior, through disagreement is I can discern no such the Wyoming office of the Bureau of Land allegation. Management, explained that the coal land exchange was I essentially separately de write minimis first to stress the rea- character: repre- restricting “The Corral sons for “competitor” standing sents less than of the federal coal dis- under 206 of FLPMA procompetitive 3% posed of through claims, lease in Wyoming sale analyze plaintiffs’ second to claims alone in FY light 1982.” Id. at J.A. 214. of that standard. mation to make anticompeti- require plaintiffs the threat of such ducers. To tive Judge any greater credible one. As degree specificity Williams acknowledges, certainly possible it inappropriately that a mo- convert the zone of inter- nopoly coal-producing railroad premature that owns facili- ests test into a mini-trial of the mer- engage

ties anticompetitive be able to its of main substantive “antitrust" ar- against pro- gument. discrimination supra non-railroad coal n. 12. laws, al statutes includes the antitrust with

A sweeping national commitment to the innumera- one of here with We deal They competition. reflect belief that the agency directing to act an statutes ble generally public interest will be advanced not, That does “public interest.” the fostering competition rather than interests of course, encompass private the standing sheltering competitors. Accordingly, in public. For the of the every member the question is whether entry-restriction the first or some purposes, absence of other “arguably” encompass- even public interest congressional hostility competi- hint of from com- in shelter plaintiffs interest es a tion, appropriate skeptical it seems be petition. restricting claim that interests in com- petition “argua- are even the broad it would. When within special In contexts some of a statute is barri purpose core zone. the ble” entry, the area cade an incorporation Here the case for re operate firms that

interests of especially ap- antitrust laws’ standards is congruent presumptively area are served out, propriate. points As the court appro thus statutory goal. It is expresses FLPMA a direct interest in satis- “arguably” them as within priate to treat “industrial, fying security and environmen- Clarke v. Securi See zone. protected competition tal needs”—an interest that is — Association, -, Industry ties likely to advance. Plaintiffs themselves 750, 754-59, 93 L.Ed.2d 757 184(i) (1982), re- cite 30 U.S.C. which Brothers Radio v. Sanders (1987); FCC quires Secretary, issuing any before Station, lease, to the advice of the Attor- obtain Pro (1940); Panhandle L.Ed. 869 ney General “as to whether such lease Association v. Royalty Owners ducers & would create or maintain a situation incon- Administration, Regulatory Economic with the antitrust laws.” sistent (D.C.Cir.1987). 1108-09 184(Z)were 184(i)(2). As FLPMA and “arguable” pared zone is merely Once course, public interest under away, adopted by Congress, plaintiffs the same may well be found such statutes for com- suggest that the latter’s concern competitors. protection include so, If pervades the former. petition FCC, 652 F.2d 72, 81-88, States v. United clearly encouragement interest (D.C.Cir.1980) (FCC must consider 102-03 competition, suppression. not its assessing public inter antitrust concerns standing deny us to to a Clarke reminds est, entry-restricting even under its but marginally plaintiff whose interests “are so protection enabling focus is on statute purposes to or inconsistent with the related see also competitors); competition, that it cannot reason- implicit the statute Energy v. Atomic Cities Statesville Congress intended to assumed that ably be Commission, 441 F.2d (D.C. see also 107 S.Ct. at permit the suit.” banc) (Leventhal, J., Cir.1969) (en concur (the judicial “concern that id. at 756 n. (“administration regulatory ring) of federal to the plaintiff ‘reliable’ carries over calling for determinations statutes seeks to inquiry, of interest zone authority, public interest establish suits are those whose exclude into duty, to take in some instances the likely frustrate than to further aptly called the account what has been panel unani- statutory objectives”). The economic nation’s ‘fundamental national of the anti to fold policy,’ namely principles mously resists efforts laws”) added) (citations trust (emphasis into a anti-competitive concerns pro- and omitted). and footnote a statute reflects single package. Where fostering com- “arguable” concern with entry- appropriate to But the inferences their anticom- petition, parties who cloak transposed restricting cannot statutes “competi- interests in loose talk of petitive unthinkingly every other administrative plaintiffs. not suitable effects” are background of feder- tive activity. general B curtailing competition in sale of coal it could shift profits in fact derived from its here injuries Plaintiffs of two transportation, which reg- types. The first is precisely asserted рrevents ulation it from collecting, to plausibly, wrong is of the its but sort. They sales, coal escape which mining regulation. contend coal A interests, on fee rail- Rocky acquisition road’s which Mountain of coal acquired has reserves in- through exchange, is considerably crease the less likelihood of such behavior: the costly mining than on leaseholds, federal more likely it is that coal royalty which entails costs and regulatory profits to be derived from restricting com- (such diligence” constraints as “due petitors’ access will losses exceed in net reporting requirements). Joint Appendix transportation revenues. See generally (“J.A.”) Moreover, at 25-26. the exchange Department op Competition Justice, Rocky cures Mountain’s checkerboard Industry (1980) (“1980 Re- Coal ‍​​‌‌​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​​​​​​‌‌‌‌‌​‌​​​​​‌​​‌​‌‌‍problem diseconomies that flow from —the port”), reprinted in J.A. at 349-51. trying small, noncontiguous mine tracts. railroads, Not all however, can carry out J.A. at 29. Plaintiffs contend that these such a Department scheme. The of Justice put diminished competitive costs them aat has identified three conditions that must disadvantage. exist before owning a railroad coal deposits All panel agree members in find- could injure competition by limiting access ing no injury here. Majori- See to its rail facilities. 1980 Report at 64-65. ty Opinion (“Maj.”) at injury 530 n. 9. The First, the firm enjoy must market is plaintiffs similar to the in Cargill, claim transportation over of coal particular to a —Inc., Monfort, -, Inc. v. point. Second, regulation must hold its (1986), S.Ct. 93 L.Ed.2d 427 rates at or marginal (at near cost least defendant acquisition rival’s of still a third below what it could regula- recover without competitor would enable it to achieve “mul- tion). Third, ability its to restrict service tiplant efficiencies” thereby to reduce must not effectively regulated. prices. Court held injury insuffi- cient for standing, antitrust finding that Plaintiffs’ allegations fall conspicuously the antitrust laws do prevent not even a short of the conditions that bring dominant from engaging vigorous firm this case within the depicted. scenario On price competition. Id. at 492. plain- As the subject regulation, of rail plaintiffs as- tiffs’ stems from the anticipated sert that enactment Staggers Rail flourishing competition, it is argu- Act of 1980 (“Staggers Act”), Pub.L. No. ably within purposes. 206’s (codified 94 Stat. 1898 as amended Plaintiffs’ complaint alleges also U.S.C. (1982)), 10101-11913a emas- §§ Rocky acquisition Mountain’s of the Corral culated regulation. rail-rate J.A. at 26-27. expand coal will its and Union assertion, Pa- That true, if would establish the cific’s “ability to against discriminate com- inability of railroads to secure forbidden peting plaintiff, producers coal non-railroad anticompetitive benefits: if regulation rate in setting making rates and hopper-car allо- is ineffective, a railroad capture could mo- cations.” J.A. at 27. majority per- is nopoly profits directly, in transportation. suaded may thereby suffer It would no reason to resort to the an anticompetitive injury; amI not. subterfuge constricting the access of its competitors. But complaint it would does attempt not even unsuitable suggest for the rely plaintiffs’ court scenario under which the coal self-de- acquisition feating engender allegations, for anticompetitive such reliance would require by Rocky questionable discrimination assumptions Mountain and Un- about the Pacific, ion operation suggests but record possi- Staggers Act, pre- bility. special circumstances, Under regulation served a coal- of rates where a railroad producing might railroad profitable find it power. market to limit rivals’ access to 10709(a), (b) facilities. By (1982); its General Chemical [regions Canyon is lo- States, 847- where Corral 817 F.2d v. United Corp. curiam). (D.C.Cir.1987) (per price of coal from The delivered 48, 850-57 cated]. regions already high is too to allow these claim destructive More significantly in- Pacific] [Union Rocky Mountain failure to causing crease its rates without utilities power in enjoys market Pacific or Union to switch to other coal sources. that Un- They assert market. the relevant only line out of the operates the Pacific ion The same consider- J.A. at id. at 351. region where Cor- Fork River-Hams Green obviously prevent Union Pa- ations would 24. But J.A. at Canyon is located. See ral securing monopoly profits on cific from an inference of support alone does ri- constricting coal-producing its supplies power. If alternative access its rail lines. vals’ enough com- delivery points provide at the findings government in a re Of course raise its cоal railroad cannot a petition, to this port can neither bind complete its control no matter how prices jurisdiction. nor define this court’s lawsuit rail line. See General particular over findings strongly suggest But the 1980 at 850-51. Corp., 817 F.2d Chemical allege failure to market suggests here record The administrative In anything but inadvertent.* power was allege why plaintiffs failed reason short, acquisi I find no claim that the coal Although study under- power. market anticompetitive here would inflict an tion closely exam- did not Report lying the injury plaintiffs. destinations, its au- competition at coal ine any railroad skeptical that appear thors markets. See power in such market held Further, 364 n. 207. at n.

J.A. Pacific finds that Union

report specifically Powder power no market because plentiful and is much more coal

River cheaper to mine than

much * Maj. at 531 n. 12. Pacific. merger on Union arguendo, Assuming, the 1982 Cf. suppose that coal is Corpоration and the Western is no reason to There Missouri Pacific Company many prices the Union Pacif- at into at the Pacific Railroad from sources available Corporation might afforded the latter ic Green profitably mined in the it can be which power, degree see J.A. of market (served some plaintiffs’ conclusory regions by Union Fork and Hams River allege power even in market failure to Thus, Canyon). including Corral Pacific and any to me to foreclose terms seems captured Burlington the Ricar- Northern if even asserting from they are inference Powder River dian rents available cf. competition. a reduction in C. Economics Howe, Resource Natural supports Report a conclusion While the 1980 suppliers (1979), Hams Fork Green River and might Burlington raise Northern that prices marginal. In evidently remain (from region River from the Powder event, market plaintiffs’ failure even transporter), J.A. at it is the sole purposes. for our power should suffice scarcely confer such conduct

Case Details

Case Name: National Coal Association v. Donald P. Hodel, U.S. Secretary of the Interior

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 11, 1987

Citation: 825 F.2d 523

Docket Number: 85-6090

Court Abbreviation: D.C. Cir.