Washington (Platts)--16Jan2008

The Interior Department's right to stop surface mining operations to protect
people and sensitive environmental areas was affirmed Tuesday when the US
Court of Appeals for the DC Circuit denied an appeal by the National Mining
Association that argued the 1999 Rule enforcing valid existing rights shielded
more land than Congress intended.

"We must conclude that we must defer to the secretary's reasonable
interpretation of this ambiguous phrase" of valid existing rights, Judge
Thomas Griffith wrote in the opinion.

The VER phrase goes back to the 1977 Surface Mining Control and Reclamation
Act, which authorizes the Interior secretary "to prohibit surface coal mining
on federal lands if he determines them to be unsuitable for that purpose" and
to ban "outright surface mining in statutorily designated areas," such as
wilderness areas and parks and near roads, schools, houses or cemeteries.

"After August 3, 1977, and subject to valid existing rights no surface coal
mining operations except those which exist on August 3, 1977, shall be
permitted in the statutorily designated areas," Griffith wrote, quoting the
law (emphasis added).

Over the years, the VER phrase has led to "a spectrum of agency
interpretations," until the 1999 Rule was promulgated. Griffith said this rule
was "a setback for parties hoping to conduct new surface mining operations" in
the prohibited areas. To gain the right to mine, the miner must prove he had a
right to mine the land before it was protected. Secondly, he must prove that
the owner of the land had made "a good faith effort to obtain all necessary
permits for the mining" or prove the coal lies immediately adjacent to a
surface mining operation active on August 3, 1977, and is needed to assure
economically viability.

"As the NMA tells it, VER allows surface mining by those with a property right
to mine coal ? But we do not read the statute so narrowly," Griffith wrote.

Five different administrations have interpreted VER differently, and "the NMA
takes this history to mean that the agency's current policy is entitled to
less deference because it has changed over time, but the opposite is true,"
Griffith wrote. Congress presented so wide a range of interpretations that it
shows "a delegation to the executive branch of the power to make reasonable
adjustments to the nation's surface mining policy."

"Though its briefs are unclear, the NMA appears to argue that its procedural
due process rights were violated because the 1999 Rule created no mechanism by
which miners could comply with the good-faith permitting requirement had they
not already done so by August 3, 1977," he wrote. But Griffith said the court
rejected the NMA's argument, because "Congress created no process that the NMA
can successfully argue it was denied."

The case is National Mining Association v. Dirk Kempthorne, Secretary of the
Interior, No. 06-5199, argued September 24, 2007, and decided January 15,
2008.