OHIO RIVER VALLEY ENVIRONMENTAL COALITION, INCORPORATED; Hominy Creek Preservation Association, Incorporated; Citizens Coal Council, Plaintiffs-Appellees, v. Dirk KEMPTHORNE, Secretary of the Interior, Defendant-Appellant.
No. 06-1122.
United States Court of Appeals, Fourth Circuit.
Decided Dec. 12, 2006.
On the other hand, much of the evidence that Wright sought to introduce ultimately came before the jury in one way or the other. In particular, there was evidence that Wilson was a major drug dealer and that Ms. Jones, who was his girlfriend, helped him, was sometimes present when he dealt drugs, was herself dealing drugs and had tried to keep the grand jury from knowing about her participation. Much of this evidence came in through defense counsel‘s cross-examination of Ms. Jones. In defense counsel‘s closing argument to the jury, counsel argued not only that Ms. Jones had a compelling motive to murder Wilson, i.e., the opportunity to take over Wilson‘s drug business, but that other drug dealers could also have had that motive. [see N.T. 10/22/81 at 43-44; 60-61; 108-111; 132-33]. In its opinion, the District Court cited numerous instances in which the trial court permitted trial counsel to explore the issue of the motive of Ms. Jones and others to murder Wilson.
This was not a perfect trial-far from it. But we cannot conclude that the trial court‘s rulings on the scope of cross-examination of Ms. Jones were so defective as to amount to constitutional error. Therefore, we reject this basis for grant of a writ of habeas corpus.
III.
In their excellent brief on appeal in support of Wright‘s petition for a writ of habeas corpus and during the oral argument, counsel for Wright have raised a plethora of issues. We have limited our discussion above to the issues we believe warranted a full exposition, but we have fully considered and now reject each of the other issues raised. For the reasons set forth above, we will affirm the judgment of the District Court denying Wright‘s petition for a writ of habeas corpus.
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.
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 Citizens 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 Procedure Act (“APA“),
I.
A.
West Virginia developed its state program for the control of surface coal mining pursuant to SMCRA, which regulates surface coal mining through a cooperative federalism approach. “Under this scheme, Congress established in SMCRA minimum national standards for regulating surface coal mining and encouraged the States, through an offer of exclusive regulatory jurisdiction, to enact their own laws incorporating 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
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
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 initiated an emergency rulemaking session to forestall federal takeover of all or part of its program. The 1988 emergency rules added regulatory definitions of “cumulative impact”2 and “cumulative impact area.”3 (J.A. at 122-23.) The cumulative impact provision referenced circumstances in which material damage could occur, explaining that “[w]hen the magnitude of cumulative impact exceeds threshold limits or ranges as predetermined by the [West Virginia] Department [of Energy], they constitute material damage.”4 (J.A. at 123.) The Secretary approved the amendments in a final rule which noted that “[a]lthough the Federal regulations do not specifically define cumulative impact, the Federal requirements at
On May 2, 2001, West Virginia submitted a state program amendment 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 operation(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 material 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.
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
II.
We review de novo the district court‘s grant of summary judgment, applying the
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
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 regulatory scheme, we decline to embrace it.
1.
We first address the Secretary‘s argument that the APA‘s provisions for judicial review apply only to agency actions which have not been made reviewable by any other statute. This interpretation conflicts 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.
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 prescriptions 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 obligation 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 Register. 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
B.
We next briefly address the Secretary‘s argument that the approval of state program amendments does not constitute rulemaking for purposes 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 particular applicabil-
ity and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, 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
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
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
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 important 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 difference 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,
The Secretary does not personally approve state program amendments, 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 actual effect that the change might have on West Virginia‘s program. West Virginia Regulatory Program, 68 Fed. Reg. at 67,036 (“We express no further opinion on whether or how the deletion of this definition 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 definition of ‘cumulative impact’ may alter the existing CHIA process in West Virginia in a way that is adverse to some commenters’ interests.” 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 amendment 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 evidence before the agency and ignored an important aspect of the problem. See State Farm, 463 U.S. at 43; NAACP, Jefferson County Branch v. Donovan, 765 F.2d 1178, 1179 (D.C. Cir. 1985) (invalidating a Department of Labor regulation for failure to consider an important 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 regulations 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 67,036-37 (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 added definition made West Virginia‘s proposed program different than the nationwide program. OSM‘s obligation is to analyze that different feature and explain whether and why the added provision renders 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 provide a reasoned analysis of its decision to approve it.
In sum, we conclude that the Secretary was required to comply with the APA‘s
AFFIRMED.
Taylor AYES; William P. Cutshall; Frank A. Ribar; Edward C. Smith; James F. Martin; William C. Terrio, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee.
No. 05-2263.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 26, 2006.
Decided: Dec. 27, 2006.