                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


COAL RIVER ENERGY, LLC,

                      Plaintiff,

               v.                                 Civil Action No. 11-1648 (BJR)

THE UNITED STATES DEPARTMENT                      MEMORANDUM OPINION
OF THE INTERIOR and its Secretary,
KENNETH SALAZAR,

                      Defendants.


                                     I. INTRODUCTION

       This matter is before the Court upon consideration of Defendant’s motion for judgment

on the pleadings. In its motion, Defendant argues that the Court lacks jurisdiction under 30

U.S.C. § 1276(a)(1) to review Plaintiff Coal River’s claims. The Court agrees that Plaintiff’s

claims must meet the requirements of § 1276(a)(1) and fail to do so. Accordingly, the Court

GRANTS Defendant’s motion for judgment on the pleadings.

                                     II. BACKGROUND

       Congress passed the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”),

codified at 20 U.S.C. §§ 1232 et seq., to, among other things, “establish a nationwide program to

protect society and the environment from the adverse effects of surface coal mining operations,”

and “assure that adequate procedures are undertaken to reclaim surface areas as

contemporaneously as possible with the surface coal mining operations.” See 20 U.S.C. §

1232(a), (e). To that end, Congress imposed a fee on coal “operators,” 30 U.S.C. § 1232(a), that

would facilitate the “reclamation and restoration of land and water resources adversely affected
by past coal mining,” id. § 1232(c)(1). This fee, which would go into an Abandoned Mine Land

(“AML”) fund, was calculated based upon the weight of “coal produced.” 1 Id. § 1232(a).

       The SMCRA does not, however, define the term “coal produced.” This omission was of

concern since the weight of coal fluctuates according to whether the coal is weighed at the time

of extraction (at which time the coal’s weight would include dirt, rocks, and other non-coal

materials) or weighed at the time that the coal was ready for sale, transfer or use (after which the

non-coal materials would presumably have been removed). Def.’s Mot. at 3; Pl.’s Opp’n at 11.

       To resolve this issue, the Secretary of Interior, acting through the United States

Department of Interior’s Office of Surface Mining (“OSM”), promulgated 30 C.F.R. § 870.12 in

December 1977. This regulation provided, in relevant part, that the coal operator would pay the

AML fee on “each ton of coal produced for sale, transfer, or use,” as determined “by the weight

and value [of the coal] at the time of initial bona fide sale, transfer of ownership, or use by the

operator.” 30 C.F.R. § 870.12(a)-(b). OSM rejected a proposal that would have based the AML

fee on the weight and value of the coal at the time it was extracted from the ground. 42 Fed.

Reg. 44,956 (Sept. 7, 1977). In the early 1980s, OSM added language to 30 C.F.R. § 870.12

clarifying that the AML fee is to be determined by the weight and value of the coal at the time of

the “first transaction or use of the coal by the operator immediately after it is severed, or

removed from a reclaimed coal refuse deposit.” 30 C.F.R. § 870.12(b)(1).




1
       Section 1232(a) states:

       All operators of coal mining operations subject to the provisions of [SMCRA]
       shall pay to the Secretary of the Interior, for deposit in the [AML] fund, a
       reclamation fee of 31.5 cents per ton of coal produced by surface coal mining and
       13.5 cents per ton of coal produced by underground mining or 10 per centum of
       the value of the coal at the mine, as determined by the Secretary, whichever is
       less, except that the reclamation fee for lignite coal shall be at a rate of 2 per
       centum of the value of the coal at the mine, or 9 cents per ton, whichever is less.
                                                2
       Plaintiff Coal River Energy LLC is a West Virginia corporation formed in 2003 that

produces and sells coal. Pl.’s Compl. ¶ 1. Since the second quarter of 2008, Plaintiff has sold

coal for export and believes it will continue to do so in the future. Id. ¶ 4. Whenever Plaintiff

has sold coal for export, it has had to pay the AML fee imposed by OSM. Id. ¶ 1.

       In 2011, Plaintiff filed suit against the Department of the Interior and its Secretary

(referred to collectively as “Defendant”). See generally Compl. Plaintiff claims that the

imposition of the AML fee “on coal sold for export by Plaintiff,” as authorized by 30 C.F.R. §

870.12(b), “violates the Export Clause of the United States Constitution, which prohibits any tax

or duty on exports.” 2 Compl. ¶¶ 1,7. Plaintiff asks that the Court declare unconstitutional

Defendant’s regulations insofar as they impose an AML fee on coal sold for export, and seeks an

order enjoining the Department of the Interior and the Secretary from “further imposition, or

enforcement of the imposition, of a tax on plaintiff’s coal when sold for export.” Compl., Prayer

for Relief. Defendant moves for judgment on the pleadings, arguing that the Court lacks

jurisdiction and must dismiss this matter. See generally Def.’s Mot. With that motion now ripe

for consideration, the Court turns to consider the parties’ legal arguments and the applicable

legal standards.

                                          III. ANALYSIS

                   A. Legal Standard – Motion for Judgment on the Pleadings

       A defendant may move for judgment on the pleadings “[a]fter the pleadings are closed –

but early enough not to delay trial.” FED. R. CIV. P. 12(c). To succeed, a movant must

demonstrate that “no material fact is in dispute and that it is entitled to judgment as a matter of

law.” Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992).

Furthermore, in resolving a motion for judgment on the pleadings, the Court must assume the

2
       The Export Clause provides that “[n]o Tax or duty shall be laid on Articles exported from any
       State.” U.S. Const. art. I, § 9.
                                                  3
factual allegations in favor of the plaintiff. Equal Rights Ctr. v. Post Props., 633 F.3d 1136,

1141 (D.C. Cir. 2011).


         B. The SMCRA Deprives the Court of Jurisdiction Over Plaintiff’s Claims

       1. The Jurisdictional Requirements of § 1276(a)(1) Apply to Plaintiff’s Claims

     a. The Requirements of § 1276(a)(1) Apply Once the Court is Asked to Invalidate
                                  OSM’s Regulations

       The SMCRA provides that:

       Any action by the Secretary promulgating national rules or regulations . . . shall
       be subject to judicial review in the United States District Court for the District of
       Columbia Circuit. . . . A petition for review of any action subject to judicial
       review under this subsection shall be filed in the appropriate Court within sixty
       days from the date of such action, or after such date if the petition is based solely
       on grounds arising after the sixtieth day. Any such petition may be made by any
       person who participated in the administrative proceedings and who is aggrieved
       by the action of the Secretary.

30 U.S.C. § 1276(a)(1).

       Defendant argues the Court lacks jurisdiction to review Plaintiff’s claims under the

jurisdictional limitations imposed by § 1276(a)(1). Def.’s Mot. at 11-12. Plaintiff responds that

§ 1276(a)(1) only constrains judicial review of facial challenges, and therefore does not affect

this Court’s ability to entertain Plaintiff’s claim, which attacks the constitutionality of OSM’s

regulations as applied to coal that is sold for export. Pl.’s Opp’n at 18-19.

       Although the thrust of Plaintiff’s arguments focus on whether its claims are an “as

applied” rather than a “facial” challenge, the label here is unimportant. As demonstrated by the

case law, the Court’s inquiry more properly focuses on whether its resolution of Plaintiff’s claim

might require the Court to invalidate the regulations, either implicitly or explicitly. See

discussion infra; cf. Envt’l Defense v. Duke, 549 U.S. 561 (2007) (holding that a court’s “implicit

validation” of the relevant regulations triggered the requirements of § 307(b) of the Clean Water

Act which, like § 1276(a)(1), limits judicial review of challenges to the validity of a regulation).
                                                  4
       In United States v. Troup, 821 F.2d 194 (3d 1987), the United States sought to recover

AML fees owed by a coal operator that sold the raw coal product, i.e. coal mixed with rock and

other debris, to a third party. In his defense, the coal operator argued that he should only be

required to pay AML fees “on the weight of the coal after it ha[d] been cleaned” by the third

party. Declining to exercise jurisdiction, the Third Circuit observed that the coal operator’s

defense struck at the heart of OSM’s regulation, which provided that the AML fee would be

calculated based on the coal’s weight at the time of sale, notwithstanding any impurities that

remained. According to the Third Circuit, the constraints to the court’s jurisdiction found in

SMCRA applied because this was “the type of challenge to national regulations contemplated by

[§ 1276(a)(1)].” Id. at 198.

       Other Courts have similarly held that the jurisdictional requirements of § 1276(a)(1)

apply to any action that challenges the validity of the regulations promulgated under the

SMCRA, regardless of whether the challenge is direct or indirect. In Tug Valley v. Watt, the

Fourth Circuit acknowledged that the “characterization of [the] suit as an attack on [a] federal

regulation” hinged on one’s interpretation of the regulation at issue. 703 F.2d 796, 799 (4th Cir.

1983). Nevertheless, the Fourth Circuit concluded that the plaintiff had to satisfy the

requirements of § 1276(a)(1) for judicial review because the claim was tantamount to an attack

on a federal regulation. Id. at 800 (holding that the district court “had no jurisdiction to hear

what amounted to an attack on [a] federal regulation”); see also Virginia ex rel. Virginia Dep’t of

Conservation & Economic Dev. v. Watt, 741 F.2d 37, 40-41 (4th Cir. 1984) (“attacks on

administrative action, taken in accordance with the Secretary’s regulations, amount to attacks on

the regulations themselves” and even indirect attacks on a regulation must abide by the

requirements for judicial review laid out in § 1276(a)(1)). Lastly, in Amerikohl Mining, Inc. v.

United States, the Federal Circuit, affirmed a dismissal for lack of subject matter jurisdiction,


                                                  5
holding that “regardless of how [the coal producer] characterizes the present action, [it] is

precluded from challenging the validity of regulations promulgated under section 1276(a)(1)”

because it did not meet the requirements therein. 899 F.2d 1210, 1215 (Fed. Cir. 1990). Under

these cases, if the Court finds that it is being asked to invalidate 30 C.F.R. § 870.12, then

Plaintiff must meet the requirements in § 1276(a)(1) for this Court to have jurisdiction. 3

     b. The Court’s Resolution of Plaintiff’s Claims May Invalidate 30 C.F.R. § 870.12

        Defendant contends that Plaintiff “is plainly directly challenging the validity of the plain

language of [30 C.F.R. § 870.12(a)-(b)] itself, not any alleged improper application or

misinterpretation of the regulations.” Def.’s Mot. at 12. Defendant further argues that “[t]he fact

that [P]laintiff’s challenge is of a constitutional nature does not alter the applicability of

SMCRA’s limitations period,” as a constitutional challenge can render a regulation invalid. Id.


3
        Plaintiff challenges the premise that the time restrictions of § 1276(a)(1) are jurisdictional in
        nature. Pl.’s Opp’n at 24-26. Although Plaintiff recognizes that “this Circuit has expressed the
        view that temporal limitations on judicial review are jurisdictional in nature,” it urges the Court to
        reconsider whether Irwin v. Dep’t of Motor Vehicles, 498 U.S. 89 (1990) altered the jurisdictional
        nature of § 1276(a)(1). In Irwin, the Supreme Court adopted a rule that a “rebuttable presumption
        of equitable tolling” should apply to suits against the United States, and specifically held that
        equitable tolling applied to the statute of limitations governing employment discrimination claims
        against the Government. 498 U.S. at 94-95. However, the Supreme Court has since clarified that
        Irwin does not, as a general matter, overrule prior cases in which the courts have declared a
        specific statute to be jurisdictional. John R. Sand & Gravel Co. v. United States, 552 U.S. 130
        (2008) (rejecting the argument that Irwin changed the long-standing interpretation by the courts
        that the court of claims limitations statute is jurisdictional); see also Marley v. United States, 548
        F.3d 1286, 1292-93 (“Irwin is not the correct rule when, as here, past precedents analyzing the
        specific statute at issue are available”).

        Since Irwin, the D.C. Circuit has interpreted § 1276(a)(1) as jurisdictional. National Mining
        Association v. U.S. Dept. of the Interior, 70 F.3d 1345 (D.C. Cir. 1995) (holding that the temporal
        requirements of § 1276(a)(1) are jurisdictional in nature); see also Am. Road & Transp. Builders
        v. Envt’l Prot. Agency, 588 F.3d 1109, 1113 (D.C. Cir. 2009) (dismissing suit brought under the
        Clean Air Act for lack of jurisdiction because judicial review was restricted by a temporal
        limitation provision similar to § 1276(a)(1) and relying on National Mining for support). Because
        Irwin is not controlling here and because Plaintiff provides nothing that would seriously call into
        question the D.C. Circuit’s holding in National Mining Association, the Court treats the time
        restrictions of § 1276(a)(1) as jurisdictional. See P&V Enters. V. United States Army Corps of
        Eng’rs, 516 F.3d 1021 (D.C. Cir. 2008) (rejecting lower court’s reasoning that Irwin and Arbaugh
        v. Y & H Corp., 546 U.S. 500 (2006) made a “rebuttable presumption of equitable tolling”
        applicable to all lawsuits unless Congress had indicated otherwise).
                                                      6
at 15. On the other hand, Plaintiff insists that it is not challenging the validity of the regulation

because 30 C.F.R. § 870.12 imposes a fee on all coal that is sold, whereas its claim seeks to

prohibit the imposition of an AML fee on only coal that is sold in the stream of export. Pl.’s

Opp’n at 18-21. Plaintiff further suggests that its claim should be categorized, not as one

attacking the validity of the regulations, but rather as an action “challeng[ing] the

unconstitutional application of the [AML] tax.” Id. at 21-23.

       Determining whether the resolution of Plaintiff’s claims might lead to the invalidation of

OSM’s regulations would necessarily require that the Court delve into the merits of the case, a

challenging task in light of the fact that the parties have not yet fully briefed the matter and a

vexing position considering that the Court is resolving a threshold jurisdictional matter. See

Ronald M. Levin, Statutory Time Limits on Judicial Review of Rules: Verkuil Revisted, 32

Cardozo L. Rev. 2203, 2228-29 (2011) (“In a number of cases, judges have stated that a time

limit statute appears to foreclose them from reaching the merits of an argument that a rule

exceeds the agency’s authority - but then they have gone on to decide the merits of that argument

anyway. This is a curious way of treating a threshold issue that courts often describe as

jurisdictional.”). Fortunately, the Court finds sufficient guidance in the parties’ arguments, as

well as the prior analysis by the D.C. Circuit, the Court of Federal Claims and the Federal Circuit

in dealing with legal issues substantively similar to those raised by Plaintiff. Thus, the Court

turns to review those cases, each of which dealt with interpreting the term “coal produced” under

the SMCRA.

       In Drummond Coal v. Hodel, a coal operator brought suit challenging a regulation that

allowed the Secretary to impose the AML fee by calculating the gross weight of coal prior to

sale, thereby “including impurities such as water that had not been removed prior to sale.” 796

F.2d 503-04 (D.C. Cir. 1986). The coal operator did not believe that the Secretary could impose


                                                   7
a fee on the excess moisture in coal attributable to post-excavation rainfall or washing. Id. at

504. The D.C. Circuit disagreed. As noted earlier, the SMCRA authorizes that an AML fee be

imposed on “coal produced.” 30 U.S.C. § 1232(a); see also supra Part II. The D.C. Circuit

found that the term “coal produced” was ambiguous, as “‘[p]roduction’ could reasonably be

interpreted to include the entire process of extracting and selling coal, complete from pit to

buyer’s door, or it could refer solely to the process of extraction.” Drummond, 796 F.2d at 505.

In light of this ambiguity, the D.C. Circuit deferred to the Secretary’s regulations which had

reasonable construed the phrase “coal produced” to include both the extraction and sale of coal.

Id. at 505.

        The Drummond opinion was relied on heavily by the Court of Federal Claims in

Consolidated Coal Co. v. United States, 64 Fed. Cl. 718, 727 (Fed. Cl. 2005). In Consolidated

Coal, numerous coal operators argued that the AML fee violated the Export Clause because it

was “a tax impermissibly levied on the sale of coal after it has entered the stream of export” – the

same claim presented by Plaintiff to this Court. 4 Consolidated Coal Co. v. United States, 64

Fed. Cl. 718, 719-20 (Fed. Cl. 2005). The Court of Federal Claims explained that it had to

“initially discern the precise moment the reclamation fee is imposed,” as “the fee would be

constitutional if imposed solely on [coal during the] extraction [stage]” but might be

unconstitutional “if imposed at the time the coal is sold.” Id. at 20-21. Again, because the

SMCRA states that the AML fee is imposed on the amount of “coal produced,” the Court of

Federal Claims was required to interpret the phrase “coal produced” in order to determine

whether the AML fee is imposed at the time of extraction or sale. Id.; see also supra Part II.
4
        These courts considered the merits of the constitutional claim only after the Federal Circuit
        determined that jurisdiction was proper under the Tucker Act – a source of jurisdiction not
        available here. See Auction Co. of Am. v. FDIC, 132 F.3d 746, 749 (D.C. Cir. 1997) (explaining
        that the Tucker Act gives jurisdiction exclusively to the Court of Federal Claims and the Federal
        Circuit for suits against the United States where the plaintiff seeks over $ 10,000 in relief).


                                                    8
Ultimately, the Court of Federal Claims determined that the AML fee “is imposed upon the sale

of coal and burdens that event” because “[t]he term ‘coal produced’ extends beyond mere

extraction and includes the entire process of extracting and selling coal.” Consolidated Coal, 64

Fed. Cl. at 728 (internal quotation and citation omitted).

       On appeal, the Federal Circuit reversed the decision by the Court of Federal Claims. See

Consolidated Coal Co. v. United States, 528 F.3d 1344 (Fed. Cir. 2008). The Federal Circuit

noted that neither the SMCRA nor the regulations defined “coal produced,” and that the term

was ambiguous. 5 Like the Court of Federal Claims, the Federal Circuit observed:

       If “coal produced” in § 1232(a) refers solely to coal extracted then the disputed
       portion of the statute does not render the statute unconstitutional under the Export
       Clause. If, however, “coal produced” is interpreted to include the entire process
       of extracting and selling coal--if it is a tax on extraction and sale--then, as it
       applies to sales that occur in the export process, it is an unconstitutional violation
       of the Export Clause.

Id. at 1346. According to the Federal Circuit, because the term “coal produced” in the SMCRA

could reasonably be interpreted to mean “coal extracted,” this interpretation must be adopted to

preserve the constitutionality of the SMCRA. Id. at 1347-48.

       On remand, the coal operators argued that the Federal Circuit had neglected to consider

the constitutionality of the implementing regulations, focusing instead solely on the construction

of the term “coal produced” in the SMCRA and the constitutionality of that statute.

Consolidated Coal Co. v. United States, 615 F.3d 1378, 1380 (Fed. Cir. 2010). When the matter

was appealed yet again, the Federal Circuit specifically held that the doctrine of constitutional

avoidance requires that the term “coal produced” as used in the regulations must be interpreted to

mean “coal extracted” rather than “coal sold,” and therefore the regulations do not violate the

Export Clause. Id. at 1382.

5
       The Federal Circuit further recognized that under 30 C.F.R. § 870.12, coal operators paid an
       AML fee on “coal produced” and that fee was levied by determining the weight and value of the
       coal at the time of sale, transfer or use.
                                                 9
       To succeed in its claim, Plaintiff must persuade this Court that the Federal Circuit erred

in Consolidated Coal and that the doctrine of constitutional avoidance does not properly apply

here. Under the doctrine of constitutional avoidance, a court must construe ambiguous statutory

language to avoid serious constitutional doubts, “if it is readily susceptible to such a

construction.” United States v. Stevens, 130 S. Ct. 1577, 1592 (2008); see also Dep’t of Air

Force v. Fed. Labor Relations Authority, 952 F.2d 446, 452 (D.C. Cir. 1991) (applying the

statutory rule for constitutional avoidance to regulations). To prevail, Plaintiff has to convince

this Court that under § 870.12(a)-(b) the term “coal produced” is unambiguous and not

susceptible to being construed as “coal extracted.” Plaintiff believes it can persuade the Court

that “coal produced” unambiguously means the entire process of extracting and selling coal by

pointing to the D.C. Circuit’s ruling in Drummond as well as OSM’s long-standing practice of

imposing the AML fee at the time of sale. Pl.’s Opp’n at 13-14, 18.

       Under Plaintiff’s reasoning, if Plaintiff were to persuade the Court that under § 870.12,

“coal produced” unambiguously means the entire process of extracting and selling coal, then the

Court would have to hold that the regulation is unconstitutional as applied to coal that is sold for

export. Assuming that the Court agrees that the Export Clause requires such a result, the

regulation would then have to be struck down as overly broad and unconstitutional. 6 Thus,


6
       Plaintiff suggests that the Court could rule that the regulation is constitutional as applied to
       domestic sales but unconstitutional as applied to export sales, but the Court cannot rewrite an
       unambiguous regulation to conform it to constitutional requirements. Stevens, 130 S. Ct. at 1592
       (noting that a court cannot rewrite an overly broad law to render its unambiguous language
       constitutional because that “would constitute a serious invasion of the legislative domain and
       sharply diminish Congress’s incentive to draft a narrowly tailored law in the first place”);
       Commodity Futures Trading Comm’n. v. Schor, 478 U.S. 833, 841 (1986) (noting that the court
       does not have “prerogative to ignore the legislative will . . . so as to save [a statute] against
       constitutional attack, it must not and will not carry this [canon of construction] to the point of
       perverting the pulse of a statute or judicially rewriting it”); Dep’t of Air Force v. Fed. Labor
       Relations Authority, 952 F.2d at 452 (explaining that a court should only construe a regulation to
       avoid constitutional questions when the regulation is ambiguous, but “[w]hen a rule (or a statute)
       is clear, a court cannot distort its meaning to avoid constitutional or statutory conflict” because “it
       is the executive, not the judiciary, which wields rulemaking power under our constitutional
                                                    10
Plaintiff’s only path to a victorious lawsuit requires the invalidation of 30 C.F.R. § 870.12(a)-(b).

Once the validity of the regulation is in question, the jurisdictional strictures of § 1276(a)(1)

must apply. See supra Part III.B.1.a. Accordingly, § 1276(a)(1) applies to Plaintiff’s claims.


    2. Plaintiff’s Claim is Based on Grounds “Arising After” the 60-day Limitations Period

        As noted above, 30 U.S.C. § 1276(a)(1) requires a petitioner to seek review of a

contested regulation 60 days from the date of its promulgation “or after such date if the petition

is based solely on grounds arising after the sixtieth day.” 7 Neither party contends that Plaintiff

filed its complaint within 60 days of the promulgation of 30 C.F.R. § 870.12. Indeed, the

regulatory provisions at stake were promulgated in 1977 and Plaintiff filed its complaint in 2011,

significantly beyond the 60-day limitation. See 42 Fed. Reg. 62,713-62,716. Moreover, despite

Plaintiff’s suggestion to the contrary, the 60-day limitation is not subject to equitable tolling due

to the jurisdictional nature of § 1276. John R. Sand & Gravel Co. v. United States, 552 U.S. at

133 (explaining that courts applying a jurisdictional statute of limitations are “forbid[den] . . . to

consider whether certain equitable considerations warrant extending a limitations period”); see

also supra Part III.B.1.b, n.3 (rejecting Plaintiff’s argument that § 1276 is not jurisdictional).

        Plaintiff’s claim may still survive, however, if its complaint is “based solely on grounds

arising after” February 1978 -- approximately 60 days after the regulation’s promulgation.

Plaintiff argues that its complaint falls into this exception because Plaintiff, having been

established as a company in 2004, did not exist in 1978, and only began selling coal for export in

        regime and must be held accountable for it. Courts cannot rewrite regulations at will to avoid
        conflicts with underlying statutes.”).
7
        Section 1276(a)(1) also states that “Any such petition may be made by any person who
        participated in the administrative proceedings and who is aggrieved by the action of the
        Secretary.” 30 U.S.C. § 1276(a)(1). Defendant argues that Plaintiff’s Complaint should be
        dismissed because Plaintiff did not participate in the notice and comment period of rulemaking
        for the contested regulation. The Court need not reach this argument because, as set forth below,
        it finds that Plaintiff Complaint should be dismissed for untimeliness.

                                                   11
2008. Pl.’s Opp’n at 23-24. Defendant argues that the “arising after” exception does not apply

because Plaintiff’s claim was foreseeable at the time that Congress passed the regulation. 8

According to Defendant, Congress must have understood that new coal operators would enter the

industry after the promulgation of the regulations and also understood that some portion of the

coal sold might be exported. Def.’s Mot. at 13-14. Defendant further contends that Plaintiff’s

lack of standing at the time the regulation was published is insufficient reason to apply the

“arising after” exception. Id. at 14. To hold otherwise, Defendant asserts, would too easily

allow the circumvention of Congress’s intent to limit review of SMCRA regulations. Def.’s

Reply at 5.

       As an initial observation, this Circuit has underscored that “Congress in § 1276(a)(1)

struck a careful balance between the need for administrative finality and the need to provide for

subsequent review in the event of unexpected difficulties. Permitting review of [a plaintiff’s]

petition based on grounds clearly available within 60 days of the rule’s promulgation would

thwart Congress’ well-laid plan.” National Mining Ass’n v. Dep’t of Interior, 70 F.3d 1345,

1350 (D.C. Cir. 1995). This Court is mindful that it must not interpret § 1276(a)(1) in a way that

“would make a mockery of Congress’ careful effort to force potential litigants to bring

challenges to a rule issued under [the SMCRA] at the outset unless they can meet the after-

arising test.” Id. at 1350-51. Thus, it is with a critical eye that the Court turns to what is meant

by “arising after.”


8
       Plaintiff maintains that the “arising after” exception of § 1276 should not be limited to
       only “unforeseen circumstances,” but rather should be treated instead as the express
       incorporation of the equitable tolling doctrine to § 1276. Pl.’s Opp’n at 23-26. Plaintiff’s
       bases this argument on its view that under Irwin v. Dep’t of Veterans Affairs, 498 U.S.
       89, 95-95 (1990), courts should no longer view § 1276 as jurisdictional. Id. Because the
       Court has already rejected Plaintiff’s argument that Irwin changed the jurisdictional
       nature of § 1276, see supra Part III.B.1.b, n.3, it similarly rejects Plaintiff’s argument
       here that the “arising after” exception should be interpreted as Congress’s intent to allow
       for equitable tolling under § 1276.

                                                   12
       While the D.C. Circuit has not opined specifically on what constitutes an “arising after”

event under the SMCRA, it has interpreted the phrase “arising after” in the context of other

environmental statutes that similarly limit jurisdiction. See e.g., Am. Rd. & Transp. Builders v.

Envt’l Prot. Agency (“Am. Rd. I”), 588 F.3d 1109, 1113-16 (D.C. Cir. 2009) (referring to case

law interpreting § 1276(a)(1) to decide whether jurisdiction was proper under the Clean Air Act);

National Mining Ass’n v. Dep’t of Interior, 70 F.3d at 1350 n.2 (observing that the limitations on

judicial review found in § 1276(a)(1) are similar to the limitations on judicial review found in

other environmental statutes and listing those statutes).

       In interpreting the “arising after” exception found in § 307(b) of the Clean Air Act, the

D.C. Circuit has held that “the occurrence of an event that ripens a claim constitutes an after-

arising ground.” Am. Road & Transp. Builders v. Envt’l Prot. Agency (“Am. Rd. II”), No. 11-

1256, 2013 U.S. App. LEXIS 910, at *10 (D.C. Cir. Jan. 15, 2013) (citing Am. Rd. & Transp.

Builders v. Envt’l Prot. Agency (“Am. Rd. I”), 588 F.3d 1109, 1113-16 (D.C. Cir. 2009)). The

mere application of a regulation, however, is not sufficient to constitute an “arising after” ground

and trigger a new statute of limitations period. Id. at *12-13. Nor does the fact that the same

legal arguments could have been raised against a regulation at the time of promulgation foreclose

the possibility that a court may review the petition under the “arising after” exception. Coal. For

Responsible Reg., Inc. v. Envt’l Prot. Agency, 684 F.3d 102, 129 (D.C. Cir. 2012) (holding that

the “arising after” exception of the Clean Air Act applied notwithstanding that the petition for

review was based on legal arguments that were available during the original 60-day review

periods for the regulations). This is because “[d]uring an initial [60-day] review period [of a

regulation], although purely legal claims may be justiciable and, thus, prudentially ripe, a party

without an immediate or threatened injury lacks a constitutionally ripe claim.” Id.




                                                 13
       “Ripeness, while often spoken of as a justiciability doctrine distinct from standing, in fact

shares the constitutional requirement of standing that an injury in fact be certainly impending.”

Id. (quoting Nat’l Treasury Emp. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996)).

“Constitutional ripeness exists where a challenge “involves, at least in part, the existence of a

live ‘Case or Controversy.’” Id. “Standing to challenge agency action exists where a petitioner

can demonstrate an ‘injury in fact’ that is fairly traceable to the challenged action and is likely to

be redressed by a favorable judicial decision.” Id.

       The D.C. Circuit has “assured petitioners with unripe claims that they will not be

foreclosed from judicial review when the appropriate time comes, and that they need not fear

preclusion by reason of the 60-day stipulation barring judicial review.” Id. (internal quotations

and citations omitted). Although “allowing [petitioners] to litigate their newly ripened claims

[may] have far-reaching implications for finality of agency actions, . . . ‘the ripeness doctrine

reflects a judgment that the disadvantages of a premature review that may prove too abstract or

unnecessary ordinarily outweigh the additional costs of – even repetitive – litigation.’” Id.

(quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) (alterations

omitted)).

       As Plaintiff was not established as a company until 2003, it lacked standing during the

60-day review period after the regulation’s promulgation. Moreover, Plaintiff could not have

demonstrated an “injury in fact” traceable to the alleged constitutional infirmity of 30 C.F.R. §

870.12 until it began exporting coal in 2008. Thus, Plaintiff’s claim was not ripe until at least

2008-2009 – at whatever point Plaintiff owed or paid the AML fees for the coal that it sold for

export in 2008. Accordingly, Plaintiff’s claim properly fits into the “arising after” exception

found in § 1276(a)(1).




                                                  14
                                 3. Plaintiff’s Claim is Untimely

       Plaintiff contends that once it is deemed to fall within the “arising after” exception, it is

no longer limited by the 60 day requirement, rather the six-year statute of limitations found in 28

U.S.C. § 2401(a) applies. Defendant argues that Plaintiff should have challenged the regulation

within 60 days from when the new grounds arose, i.e. 60 days from the date that Plaintiff first

paid its AML fees for the coal that it sold for export. Def.’s Reply at 6. Defendant contends that

“if a party must challenge an initial rulemaking within 60 days of promulgation, it is untenable to

suggest that a party has six years to challenge the rule after the occurrence of an event arising

more than 60 days after the promulgation.” Id.

       As Defendant notes, this Court has previously held that the initial 60-day statute of

limitations provided in § 1276(a)(1) reasserts itself to apply to any action filed pursuant to the

“arising after” exception. Nat’l Mining Ass’n v. Office of Hearings & Appeals, 777 F. Supp. 2d

164, 173 (D.D.C. 2011). Indeed, it makes little sense to restrict the initial challenges to the

regulations to 60 days while allowing petitions based on later arising grounds to be filed within

six years of the ripening of their claims. Requiring a petitioner to make a challenge within 60

days of the later arising event is in line with Congress’s intent to strike a “careful balance

between the need for administrative finality and the need to provide for subsequent review in the

event of unexpected difficulties.” National Mining Ass’n v. Dep’t of Interior, 70 F.3d at 1350.

       Here, Plaintiff’s claim ripened when its AML fees for coal exported first became due or

were paid, presumably sometime in 2009. Yet Plaintiff waited approximately two years to file

its complaint. Because Plaintiff failed to filed its complaint within 60 days of its ripened claim,

the Court dismisses Plaintiff’s claim for lack of jurisdiction under § 1276. 9

9
       Plaintiff claims that the Administrative Procedure Act (“APA”) is an independent source of
       jurisdiction, notwithstanding failure to comply with § 1276(a)(1). However, “agency actions are
       not reviewable under [the APA] if other ‘statutes preclude judicial review.’” Patent Office Prof’l
       Ass’n v. Federal Labor Rels. Auth., 128 F.3d 751, 753 (D.C. Cir. 1997) (citing 5 U.S.C. §
                                                  15
                                       IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendant’s Motion for Judgment on the

Pleadings. This matter is DISMISSED for lack of jurisdiction under 30 U.S.C. § 1276.

       SO ORDERED.




March 20, 2013




                                                      BARBARA J. ROTHSTEIN
                                                      UNITED STATES DISTRICT JUDGE




       701(a)(1)). Because § 1276(a)(1) bars review of Plaintiff’s untimely claim, the APA cannot
       provide this Court with a source of jurisdiction to review Plaintiff’s complaint.
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