247 F.3d 1355 (Fed. Cir. 2001)
RITH ENERGY, INC.,  Plaintiff-Appellant,v.UNITED STATES, Defendant-Appellee.
99-5153
United States Court of Appeals for the Federal Circuit
DECIDED: May 2, 2001

Appealed from: United States Court of Federal Claims, Judge John P. Wiese [Copyrighted Material Omitted][Copyrighted Material Omitted]
Raymond D. Battocchi, Gabeler, Battocchi & Griggs LLC, of McLean, Virginia, argued for plaintiff-appellant. With him on the brief were John R. Powell and Vicki A. Paisley. Of counsel on the brief was Walter H. Fleischer, of Washington, DC.
Katherine J. Barton, Attorney, Environmental and Natural Resources Division, Department of Justice, of Washington, DC, argued for defendant- appellee. With her on the brief were Lois J. Schiffer, Assistant Attorney General; John A. Bryson, Attorney; and Susan V. Cook, Attorney. Of counsel on the brief was Thomas A. Bovard, Attorney, Office of the Solicitor, Department of the Interior, of Washington, DC.
Glenn Sugameli, Senior Counsel, National Wildlife Federation, of Washington, DC, for amicus curiae National Wildlife Federation.
Nancie G. Marzulla, Defenders of Property Rights, of Washington, DC, for amicus curiae National Mining Association.
Before MAYER, Chief Judge, LOURIE, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.


1
In 1985, Rith Energy, Inc., purchased two coal mining leases in Tennessee.  It subsequently applied for, and obtained, a federal permit to conduct  mining operations on the leased property. After Rith had mined for a period  of time, the Office of Surface Mining Reclamation and Enforcement of the  United States Department of the Interior (OSM) concluded that a portion of  the property on which Rith was mining contained high levels of potentially  toxic materials that could pollute the groundwater in the area through a  process known as "acid mine drainage." OSM therefore suspended Rith's  permit and prohibited it from mining most of the coal covered by the mining  leases until Rith devised a plan to address the problem of acid mine  drainage at its mining site. When Rith was unable to devise a plan that  satisfied OSM, Rith's request to revise its mining permit was denied and  Rith was unable to conduct any more mining at the site.


2
After several unsuccessful administrative and judicial challenges to OSM's  actions, Rith sued the United States in the Court of Federal Claims,  contending that its property had been taken without compensation, in  violation of the Takings Clause of the Fifth Amendment. The Court of  Federal Claims granted summary judgment for the government, and Rith  appealed. Because the government's conduct at issue in this case did not  result in a categorical taking of Rith's property, and because Rith did not  have reasonable investment-backed expectations that it would be permitted  to mine in a way that would create a high risk of acid mine drainage, we  affirm.


3
* The Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C.  §§ 1201-1328, established a "nationwide program to protect society and the  environment from the adverse effects of surface coal mining operations."  30 U.S.C. § 1202(a). Pursuant to SMCRA, coal mine operators such as Rith  must obtain a permit in order to conduct any mining operations. 30 U.S.C.  § 1256. Any permit issued under SMCRA must comply with certain  environmental performance standards. 30 U.S.C. § 1265. SMCRA also  authorizes the Department of the Interior to prohibit mining operations  that create an imminent danger to the health and safety of the public or  can reasonably be expected to cause significant, imminent environmental  harm to land, air, or water resources. 30 U.S.C. § 1271.


4
The environmental performance standards set forth in SMCRA require, among  other things, that the mine operator


5
(10) minimize the disturbances to the prevailing hydrologic balance at  the mine-site and in associated offsite areas and to the quality and  quantity of water in surface and ground water systems both during and  after surface coal mining operations and during reclamation by-


6
(A) avoiding acid or other toxic mine drainage by such measures as,  but not limited to-


7
(i) preventing or removing water from contact with toxic producing  deposits;


8
(ii) treating drainage to reduce toxic content which adversely affects  downstream water upon being released to water courses;


9
(iii) casing, sealing, or otherwise managing boreholes, shafts, and  wells and keep[ing] acid or other toxic drainage from entering ground  and surface waters[.]


10
30 U.S.C. § 1265(b). Acid mine drainage is an environmental problem long  associated with mining activity. It occurs when certain types of acidic  soil are exposed to air and water. Once acid mine drainage begins, the  chemical reaction that creates the toxic product becomes self-sustaining  and can continue for years, long after all mining activity has ceased. See  Rith Energy, Inc. v. United States, 44 Fed. Cl. 108, 111 n.3 (1999); see  also 30 C.F.R. § 701.5 (defining acid mine drainage).


11
The coal leases at issue are located in the Cumberland Plateau region of  Tennessee. Prior to April 1984, the State of Tennessee had administered  SMCRA in that region. In the wake of failures by the State to implement,  administer, maintain and enforce the state program adequately, OSM took  over the administration of SMCRA in Tennessee. OSM promulgated a federal  program for Tennessee in October 1984. See 49 Fed. Reg. 15,496 (Apr. 18,  1984); 49 Fed. Reg. 38,874 (Oct. 1, 1984).


12
In June 1985, long after SMCRA was enacted and shortly after the federal  takeover of SMCRA enforcement in Tennessee, Rith acquired the mineral  leases at issue in this case. The two leases covered 250 acres in Bledsoe  County, Tennessee, and cost Rith approximately $33,500. The leases included  warnings regarding the uncertainties of obtaining mining permits and  removing coal. After acquiring the leases, Rith applied to OSM for a permit  to surface mine coal from two coal seams within the leased property, the  Sewanee and Richland seams. At the time, there was extensive evidence that  acid mine drainage was endemic to the Sewanee coal seam. That coal seam is  situated above the Sewanee Conglomerate aquifer, a source of drinking water  for area residents.


13
Rith planned to mine the leased property in three stages, with the first  stage to cover the 89-acre area identified in the permit application. Rith  estimated that a total of 385,000 tons of coal was located within the 250-  acre leasehold; of that amount, Rith stated in its permit application that  it anticipated obtaining 250,000 tons of coal from the 89-acre area covered  by the permit.


14
As required by SMCRA, Rith submitted a determination of the probable  hydrologic consequences of mining and reclamation operations in the subject  area, supported by soil test results. The test results showed that the  sampled materials were of low acidity and that the surrounding soils had  buffering capabilities, thereby greatly reducing the risk of acid mine  drainage. Based in part on those test results, OSM issued Rith a permit to  mine in January 1986.


15
In response to several complaints, OSM visited Rith's mine site in March  1986 and obtained additional soil samples. Those samples showed the  presence of a thick zone of acidic material in the shale overburden of the  Sewanee coal seam. The OSM samples indicated that the potential acidity of  the overburden at Rith's site was some 250 percent greater than had been  represented by Rith, and that the neutralization capacity of the soil was  near zero. OSM directed Rith to provide further soil samples. Based on  those samples, OSM concluded that the overburden posed a threat to the  hydrological balance outside the permit area. In light of the  "diametrically opposite" test results and what it characterized as a  greatly heightened risk of acid mine drainage, OSM suspended Rith's permit  in June 1986. Rith did not appeal OSM's decision to suspend its permit.


16
OSM invited Rith to submit a toxic materials handling plan that would take  into account the heightened risk of acid mine drainage at the Sewanee coal  seam. Rith submitted a number of plans in an effort to have the suspension  lifted, but none satisfied OSM that Rith had adequately addressed the  concerns OSM had raised. From shortly after the issuance of the suspension  order until May 1987, however, Rith was permitted to continue mining  portions of the Richland coal seam where the risk of acid mine drainage was  not as great. Rith ultimately extracted approximately 35,700 tons of coal  from the Sewanee and Richland coal seams, which resulted in a profit of  approximately $14 per ton.


17
In September 1988, OSM rejected Rith's final proposed toxic materials  handling plan and denied a permit to resume mining in the disputed area.  Rith then filed an administrative appeal pursuant to 30 U.S.C. § 1264. In  the administrative appeal, Rith challenged OSM's actions on a number of  grounds, including its contention that acid mine drainage was unlikely to  occur at the mine site and that its toxic materials handling plan was  sufficient to prevent hydrologic damage outside the permit area if acid  mine drainage did occur.


18
After a hearing, an administrative law judge from the Interior Department's  Office of Hearings and Appeals sustained OSM's rejection of Rith's plan.  The administrative law judge concluded that "the overburden on the north  side of [Rith's] permit was undeniably of a highly acidic nature" and that  it "had a high propensity to produce acid mine drainage." Absent an  adequate toxic materials handling plan, the administrative law judge found,  there was "a high probability that there would be acid mine drainage into  the Sewanee Conglomerate aquifer." Finally, the administrative law judge  concluded that Rith's toxic materials handling plan "would not accomplish  the necessary reclamation of the site, nor would it prevent damage to the  hydrologic balance." Rith appealed the decision of the administrative law  judge to the Interior Board of Land Appeals (IBLA), which upheld the  administrative law judge's findings and affirmed his ruling.


19
Both before and after the conclusion of the administrative proceedings,  Rith instituted several actions in the United States District Court for the  Eastern District of Tennessee challenging OSM's conduct with respect to  Rith's mining permit, including an action seeking review of the IBLA  ruling. In August 1990, Rith moved to dismiss the action in which it sought  review of the IBLA decision. The district court granted that motion and  dismissed the appeal with prejudice. After most of the claims in the other  proceedings were dismissed on jurisdictional grounds, the only remaining  claim from the various district court actions was Rith's claim for damages  of $5 million against the United States. The district court transferred  that claim to the United States Court of Federal Claims in May 1992.


20
In the Court of Federal Claims, Rith filed an amended complaint that  included a takings claim. On cross-motions for summary judgment, the court  ruled that no taking had occurred and accordingly entered judgment for the  United States. The court found that "OSM's denial of a mining permit to  plaintiff, because of the high probability of acid mine draining into the  Sewanee Conglomerate aquifer, represented an exercise of regulatory  authority indistinguishable in purpose and result from that to which  plaintiff was always subject under Tennessee nuisance law." Rith Energy, 44  Fed. Cl. at 115. The fact that Rith was granted a surface water discharge  permit by the state regulatory body was not persuasive evidence that Rith's  mining activities were consistent with state law, the court explained,  because


21
[t]he information plaintiff submitted to the state officials no more  informed them of the high probability of harm to the Sewanee aquifer  than did that same data when presented to the federal officials. We  can justifiably assume, however, that even as the federal officials  were persuaded to reexamine the validity of the permit they initially  had issued, so too would the state officials. A high probability of  pollution of an aquifer is not within the tolerances of either  regulatory scheme-the Tennessee Water Quality Control Act or SMCRA.


22
Id.


23
In an order denying a motion for reconsideration, the trial court added  that the property use that was denied in this case-"the conduct of a  surface mining operation that held out a `high probability' of introducing  acid mine drainage into the Sewanee Conglomerate aquifer"-is not a property  use that Rith "could legitimately claim it had a right to pursue in  consonance with relevant state property and nuisance principles." Rith  Energy, Inc. v. United States, 44 Fed. Cl. 366, 367 (1999).

II

24
Rith asserts that by preventing it from mining on the property covered by  its coal leases, the government took its property without compensation, in  violation of the Fifth Amendment. The Court of Federal Claims rejected  Rith's takings claim on the ground that under Tennessee nuisance law, Rith  had no right to mine in a way that was likely to produce acid mine  drainage, and that its property right in the coal leases therefore did not  include the right to mine the Sewanee seam in the way that it wanted to.  The court's analysis was based on the so-called "nuisance defense" to  takings claims described by the Supreme Court in Lucas v. South Carolina  Coastal Council, 505 U.S. 1003 (1992), where the Court held that to avoid  constituting a taking, a regulatory restraint that prohibits all  economically beneficial use of land "must inhere in the title itself, in  the restrictions that background principles of the State's law of property  and nuisance already place upon land ownership." Id. at 1029. The Court in  Lucas explained that when a regulation "that declares `off-limits' all  economically productive or beneficial uses of land goes beyond what the  relevant background principles would dictate, compensation must be paid to  sustain it." Id. at 1030.


25
Rith argues that its activities would not have been contrary to Tennessee  nuisance law and that OSM's restraint on Rith's mining activities, which  deprived Rith of all economic value in the coal leases, therefore  constituted a compensable taking of its property interest in those leases.  We need not reach the question whether Rith's mining activities would have  been prohibited by Tennessee nuisance law, however, because we conclude  that when Rith purchased its coal leases it did not have any reason to  expect that it would be permitted to mine in a way that was likely to  produce acid mine drainage.


26
* Under the current state of takings law, it is often important to determine  at the outset whether a particular claimed taking was "categorical" or not.  A categorical taking has been defined as one in which "all economically  viable use, i.e., all economic value, has been taken by the regulatory  imposition." Palm Beach Isles Assocs. v. United States, 231 F.3d 1354, 1357  (Fed. Cir.), modifying 208 F.3d 1374 (Fed. Cir. 2000). A categorical taking  is distinct from a taking "that is the consequence of a regulatory  imposition that prohibits or restricts only some of the uses that would  otherwise be available to the property owner, but leaves the owner with  substantial viable economic use." Id. In Palm Beach Isles, this court held  that one significant difference between a categorical taking and a non-  categorical taking is that in the former case, analyzing whether  compensation is due does not require an inquiry into whether the plaintiff  had reasonable investment-backed expectations that were defeated by the  regulatory measure that gave rise to the takings claim.


27
We agree with the government that the regulatory restraint at issue in this  case did not result in a categorical taking. During the period that Rith  was permitted to mine coal under the permit that OSM issued in January  1986, it extracted approximately 15,900 tons of coal from the leased  property. Even after OSM suspended Rith's permit in June 1986, OSM  permitted Rith to continue mining coal from one of the two coal seams on  the property, and Rith extracted an additional 19,800 tons of coal from  that seam. Although Rith stated in its permit application that it expected  to extract a total of approximately 250,000 tons of coal from the property  covered by the permit (and later stated that it expected to extract  approximately 385,000 tons of coal from the entire 250-acre area), Rith  acknowledges that the 35,700 tons of coal that it extracted before it  terminated its mining activities produced a profit of approximately $14 per  ton, or a total profit of approximately $500,000, for Rith's investors.  Because Rith purchased the coal leases for a total of $33,500, it was able  to recover its investment and considerably more in spite of the permitting  restrictions imposed by OSM.


28
Rith argues that in determining whether the government action in this case  constituted a categorical taking, the loss to Rith must be measured as of  September 1988, when OSM refused to accept Rith's last version of its toxic  materials handling plan. After that date, Rith was unable to mine any more  coal from the leased property, and Rith contends that as of that time it  was deprived of all remaining economic value in the coal leases.


29
In measuring the regulatory burden on Rith's mining activities, it is  appropriate to look at the extent to which Rith was able to exploit its  leases throughout the permitting period. By focusing on its inability to  mine any coal under its permit after September 1988, Rith ignores the fact  that it was allowed to extract a substantial amount of coal under its  mining permit prior to that date. If the permit had provided at the outset  that Rith could mine 35,700 tons of coal on the 89 acres that were covered  by its permit, it would not be accurate to characterize the regulatory  restraint as categorical. The analysis is not different simply because OSM  imposed a condition on the permit during the course of Rith's mining  activities that had the effect of preventing Rith from extracting any more  than the 35,700 tons it had already mined. If, for example, OSM's  restraints had been made effective after Rith had removed half the coal  from the leased property, it could hardly be said that the restraint gave  rise to a categorical taking because OSM's prohibition on further mining  took the entire remaining value of the leases as of that time. See Concrete  Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 643-44  (1993) ("a claimant's parcel of property could not first be divided into  what was taken and what was left for the purpose of demonstrating the  taking of the former to be complete and hence compensable"); Keystone  Bituminous Coal Co. v. DeBenedictis, 480 U.S. 470, 498-99 (1987).


30
Because Rith applied for a permit to mine all of the coal within the 89-  acre area identified in the application, the impact of OSM's action must be  measured, at minimum, by the entire coal reserve covered by the permit, not  the portion that remained at the time Rith was forced to stop mining. The  regulatory program began with the issuance of the permit in January 1986,  extended through the period in which the permit was suspended, starting in  June 1986, and ended when Rith abandoned further efforts to devise a  satisfactory toxic materials handling plan in September 1988. During the  first six months of that period, Rith was able to mine under the authority  of the permit, and even during the period following the permit suspension,  Rith was allowed to continue mining coal from one of the two seams on the  leased property. Viewing the impact of the regulatory program as a whole,  OSM's restraints significantly limited Rith's rights to mine, but even  within those limits Rith was able to mine a significant amount of coal that  earned Rith a substantial profit on its investment in the leases.


31
In determining whether a taking is categorical, "the owner's opportunity to  recoup its investment or better, subject to the regulation, cannot be  ignored." Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 905  (Fed. Cir. 1986); see Forest Props., Inc. v. United States, 177 F.3d 1360,  1367 (Fed. Cir. 1999) (the fact that, despite the challenged regulatory  restraint, the value of the subject property increased more than three-fold  in 11 years "itself undermines Forest's contention that its property was  taken"). While the $500,000 in profit that Rith earned on the extracted  coal was far less than it hoped to earn from the coal leases, the sum was  considerably more than the $33,500 that Rith invested in the leases. Thus,  the 35,700 tons, although only about 14 percent of the amount Rith hoped to  extract under its permit, cannot be regarded as merely a "nominal"  recovery, see Florida Rock Indus., Inc. v. United States, 18 F.3d 1560,  1567 (Fed. Cir. 1994), reflecting the "total wipe-out" that accompanies a  categorical taking, see Palm Beach Isles, 208 F.3d at 1380. For that  reason, it is not appropriate to characterize OSM's restraints as "a  prohibition of all economically viable use" of the property in question,  see Florida Rock, 18 F.3d at 1564-65. The restraint in this case therefore  did not result in one of "the relatively rare situations where the  government has deprived a landowner of all economically beneficial uses."  Lucas, 505 U.S. at 1018 .

B

32
Under this court's decision in Palm Beach Isles, the consequence of  concluding that there was no categorical taking in this case is that in  order to establish that OSM's regulatory restraints constituted a  compensable taking, Rith must show that it had a reasonable investment-  backed expectation that it would not be subject to such restraints when it  acquired the coal leases. Our precedents make clear that Rith could not  have had such expectations. SMCRA was enacted eight years before Rith  purchased the coal leases. Its provisions include environmental performance  standards that directly address acid mine drainage and make clear that  surface mining will not be permitted unless the permittee minimizes the  "disturbances to the prevailing hydrologic balance at the mine-site and in  associated offsite areas and to the quality and quantity of water in  surface and ground water systems . . . by avoiding acid or other toxic mine  drainage . . . ." 30 U.S.C. § 1265(b)(10). In light of that statutory  provision, Rith could not reasonably have expected that it would be free  from regulatory oversight with regard to the potential for acid mine  drainage, and it could not reasonably have expected that it would not be  required to adopt potentially expensive measures to avoid acid mine  drainage if OSM determined that its mining activities could result in the  release of those or other toxins. As this court explained in M & J Coal Co.  v. United States, 47 F.3d 1148, 1154 (Fed. Cir. 1995), at the time Rith  acquired its mining rights, "it knew or should have known that it could not  mine in such a way as to endanger public health or safety and that any  state authorization it may have received was subordinate to the national  standards that were established by SMCRA and enforced by OSM." See  generally Good v. United States, 189 F.3d 1355, 1362 (Fed. Cir. 1999)  (holding that the property owner had no reasonable investment-backed  expectations because he "had both constructive and actual knowledge that  either state or federal regulations could ultimately prevent him from  building on the property"); Creppel v. United States, 41 F.3d 627, 632  (Fed. Cir. 1994) (stating that one who buys with knowledge of regulatory  restrictions on the use of property "assumes the risk of economic loss. In  such a case, the owner presumably paid a discounted price for the property.  Compensating him for a `taking' would confer a windfall.").


33
Section 521(a)(2) of SMCRA, 30 U.S.C. § 1271(a)(2), provides that when the  Secretary determines that any condition exists that creates "an imminent  danger to the health or safety of the public or is causing, or can  reasonably be expected to cause significant, imminent environmental harm to  land, air, or water resources," the Secretary may order the immediate  cessation of surface coal mining operations relating to that condition.  Although OSM did not explicitly invoke section 521(a)(2) when it suspended  Rith's permit in June 1986, that was the apparent source of its authority  to issue the suspension order. Because Rith did not appeal the suspension  of its permit, it was not necessary for the administrative law judge to  address directly whether the standard of section 521(a)(2) was satisfied,  but the administrative law judge's findings in the appeal from the denial  of the revision to Rith's permit support the suspension-particularly his  findings that absent an effective toxic materials handling plan, there was  "a high probability that there would be acid mine drainage into the Sewanee  Conglomerate aquifer" resulting in damage to the hydrologic balance. In  support of his findings, the administrative law judge cited testimony from  an OSM employee that Rith's mine site "contained one of the highest levels  of acid material that he had ever seen, nationwide, in nine years of  looking at hundreds of permits." The Court of Federal Claims, moreover,  noted that it is well known that acid mine drainage can destroy aquatic  life and create serious problems for domestic and public water supplies,  and that acid mine drainage can continue for years, even after mining  operations have been halted. Rith Energy, 44 Fed. Cl. at 111 n.3. For those  reasons, the court agreed with the administrative law judge that if OSM had  failed to act, there was a high probability that acid mine drainage would  have occurred, severely polluting the Sewanee Conglomerate and endangering  domestic and public water supplies.


34
Although Rith attacks the lawfulness of OSM's rejection of its toxic  materials handling plan, that challenge is not properly before us. Like the  coal mine operator in M & J Coal, Rith had the opportunity to challenge the  lawfulness of OSM's actions, including the suspension of its permit, the  rejection of its toxic materials handling plan, and the ultimate denial of  its permit in administrative proceedings and through judicial review in a  United States district court. In fact, Rith challenged the rejection of its  toxic materials handling plan administratively, and lost. Like the coal  mine operator in M & J Coal, Rith appealed that decision to the IBLA.  After losing before the IBLA, Rith sought judicial review in federal  district court, but dismissed that action. In a similar setting, we held in  M & J Coal that "[n]either the Court of Federal Claims nor this court may  entertain a collateral challenge to the validity of OSM's actions," id. at  1154, and we see no reason to depart from that holding here.

C

35
Citing Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358  (Fed. Cir. 1998), Rith argues that it should be given an opportunity to  challenge the lawfulness of OSM's suspension and permit denial in this  action. Del-Rio, however, does not authorize such a challenge. In Del-Rio,  we held that the plaintiff could bring a takings claim without first  challenging the lawfulness of the government's action, or establishing the  scope of its property interest, in an administrative proceeding. That is so  because a takings claim lies, as long as the government's action was  authorized, even if the government's action was subject to legal challenge  on some other ground. We explained that an uncompensated taking and an  unlawful government action constitute "two separate wrongs [that] give rise  to two separate causes of action," and that a property owner is free either  to sue in district court for asserted improprieties committed in the course  of the challenged action or to sue for an uncompensated taking in the Court  of Federal Claims. Id. at 1364. To proceed on the second cause of action  does not require that the plaintiff first litigate, and lose, on the first.  Nor is the plaintiff required to use the administrative review proceeding  to establish the scope of the property right that it contends was taken.  See id.


36
To the extent that Rith suggests that Del-Rio entitles it to argue in the  Court of Federal Claims that OSM's permit denial was unlawful under SMCRA,  or to relitigate in the takings action its unsuccessful statutory challenge  to the permit denial, it reads too much into Del-Rio. The question whether  OSM violated SMCRA by its ruling on a permit application in a particular  case was assigned by Congress to the administrative process within the  Department of the Interior, subject to judicial review in a district court.  Del-Rio does not give the Court of Federal Claims authority to adjudicate  that issue de novo. Thus, if the plaintiff claims that its property was  taken regardless of whether the agency acted consistently with its  statutory and regulatory mandate, Del-Rio stands for the proposition that  the takings claim can be litigated in the Court of Federal Claims without  the need first to litigate the issue of lawfulness in administrative  proceedings before the agency. On the other hand, to the extent that the  plaintiff claims it is entitled to prevail because the agency acted in  violation of statute or regulation, Del-Rio does not give the plaintiff a  right to litigate that issue in a takings action rather than in the  congressionally mandated administrative review proceeding.


37
In this case, having forgone its challenge to OSM's administrative actions,  Rith is not free to renew its challenge to those actions under the cover of  a takings claim in the Court of Federal Claims. Rith is thus required to  litigate its takings claim on the assumption that the administrative action  was both authorized and lawful. On the facts of this case, the consequence  of assuming the lawfulness of OSM's actions, i.e., that OSM was correct in  concluding that Rith's mining activities constituted an unacceptable threat  of acid mine drainage and the consequent pollution of groundwater in the  area surrounding the mine operations, is to limit the issue before us to  whether prohibiting Rith from mining under those circumstances constitutes  a taking. And on that issue, as we have explained, the absence of a  reasonable investment-backed expectation on Rith's part that it would be  permitted to mine while producing acid mine discharge in violation of SMCRA  defeats its takings claim. We therefore uphold the judgment of the Court of  Federal Claims.


38
AFFIRMED.

