251 F.3d 1007 (D.C. Cir. 2001)
National Mining Association, Appellantv.United States Department of the Interior, et al., Appellees
No. 96-5274
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2000Decided June 8, 2001

Appeal from the United States District Court  for the District of Columbia (94cv02740)Thomas C. Means argued the cause for appellant.  With  him on the briefs were Harold P. Quinn, Jr., J. Michael  Klise and Kirsten L. Nathanson.  John A. MacLeod entered  an appearance.
Kathryn E. Kovacs, Attorney, U.S. Department of Justice,  argued the cause for appellees.  With her on the brief were  James F. Simon, Acting Assistant Attorney General, and Robert H. Oakley, Attorney.  John T. Stahr and William B.  Lazarus, Attorneys, entered appearances.
Before:  Ginsburg, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
No one may engage in surface  coal mining without a permit issued pursuant to the Surface  Mining Reclamation and Control Act, 30 U.S.C.   1201 et  seq., and the regulations thereunder.  Under the Act, States  administer permit programs approved by the Secretary of the  Interior as consistent with federal laws and regulations.  See  National Mining Ass'n v. United States Dep't of the Interior,  70 F.3d 1345, 1347 (D.C. Cir. 1995).  The questions initially  presented in this appeal dealt with the validity of several  federal regulatory requirements imposed on permit applicants, and the procedures for contesting the accuracy of  information used to determine permit eligibility.  After oral  argument, the Interior Department revised many of these  regulations, and so we are faced with additional questions  concerning the extent to which the case is now moot.


2
Some of the original regulations stemmed from a consent  decree requiring the Interior Department to "establish and  maintain a computerized system" to track applicants and  violators, in order to enforce 30 U.S.C.   1260(c).  See Save  Our Cumberland Mountains v. Clark, No. 81-2134, 1985 U.S.  Dist. LEXIS 22934, at *1-*4 (D.D.C. Jan. 31, 1985);  Save  Our Cumberland Mountains v. Watt, 550 F. Supp. 979, 980  (D.D.C. 1982), rev'd, 725 F.2d 1434 (D.C. Cir. 1984).  Section  1260(c) provides that a permitting authority may not issue a  permit if "the schedule [attached to the permit application] or  other information available to the regulatory authority indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of this  chapter ... [unless] ... the applicant submits proof that such  violation has been corrected or is in the process of being  corrected."  30 U.S.C.   1260(c).


3
In compliance with the consent decree, the Interior Department's Office of Surface Mining created the Applicant/Violator System ("AVS").  The AVS is a computerized database  "programmed to identify 'links' between known violators and  applicants, individuals, and corporations."  Sam P. Burchett,  The Applicant Violator System in Transition, 21 N. Ky. L.  Rev. 555 n.5 (1994).  The Office of Surface Mining operates  the database and makes it available to the public on dedicated  terminals and the Internet.  See Office of Surface Mining,  Access, at http://www.avs.osmre.gov/pubaccess.htm (last visited Dec. 5, 2000).


4
The National Mining Association (NMA) brought this action to set aside aspects of the AVS and related regulations. NMA objected to the AVS rules both because of the information required of applicants and because of what is purportedly  done with the information.  The district court granted summary judgment in favor of the Interior Department, sustaining all of the regulations.


5
The case was argued before us in November 2000.  In  December 2000, the Interior Department published a rule,  effective January 18, 2001, replacing the AVS rule at issue in  this appeal.  See Application and Permit Information Requirements;  Permit Eligibility;  Definitions of Ownership and  Control;  the Applicant/Violator System;  Alternative Enforcement, 65 Fed. Reg. 79,582 (Dec. 19, 2000) (to be codified at 30  C.F.R.) [hereinafter AVS Rules].  We ordered supplemental  briefing on the question of mootness.

I.

6
To determine whether anything remains of NMA's case, we  need to identify which regulations NMA challenged and  whether the new rules altered those regulations.  This is no  small task.  NMA, in its complaint, did not see fit to provide  citations to all of the regulations it thought invalid.  Even in  its briefs in this court, NMA is content to refer generally to  "the rules" without, in many instances, providing any citations  to the C.F.R.  Perhaps this results from NMA's habit of  describing what "the rules" prohibit when in fact NMA's real  complaint is that "the rules" do not affirmatively require what  NMA desires.


7
At any rate, by our count NMA specifically argued against  the following old AVS rules issued by the Office of Surface  Mining:  30 C.F.R.    773.5, 773.20(c), 773.23(b), 773.24,  773.25 & 778.14(c) (1999).  In its supplemental brief, NMA  agrees with the government that the new AVS rules moot its  challenges to    773.20(c), 773.23(b), 773.24 & 773.25.  See  Supplemental Brief of Appellant at 4, 11.  NMA also agrees  that its contention about the lack of any provision to allow  provisional permits is moot because the new rules fill the gap. See AVS Rules, 65 Fed. Reg. at 79,664-65 (to be codified at  30 C.F.R.   773.14).


8
As to NMA's remaining challenges to the regulations, some  are also moot and the rest are meritless.

A.

9
NMA mounted a scattershot due process attack on the old  AVS rules.  Its main objections were that the rules did not  give notice, and did not give applicants the chance to contest  links to them on the AVS before these were posted and used  to deny applications.  NMA brought the case as a facial  challenge to the rules.  Yet NMA conceded at oral argument  that even by its lights, "the rules" could be constitutionally  applied in some cases.  Whether that concession should have  ended this aspect of the case under the doctrine that a law  valid in some of its applications cannot be struck down as  invalid on its face is a question we leave to another day. Compare United States v. Salerno, 481 U.S. 739, 745 (1987); Reno v. Flores, 507 U.S. 292, 301 (1993);  INS v. National  Ctr. for Immigrants' Rights, 502 U.S. 183, 188 (1991);  Chemical Waste Mgmt. v. EPA, 56 F.3d 1434, 1437 (D.C. Cir. 1995); with National Mining Ass'n v. Army Corps of Engineers,  145 F.3d 1399, 1407-08 (D.C. Cir. 1998).  We also leave to  another day the question whether the sort of generalized due  process attack NMA advanced would be ripe under the  doctrine of Abbott Laboratories v. Gardner, 387 U.S. 136, 149  (1967).  See Appalachian Power Co. v. EPA, 208 F.3d 1015,  1023 n.18 (D.C. Cir. 2000).  We leave these questions undecided because NMA's due process claims are moot in light of the  new AVS rules.


10
In order to evaluate a procedural due process claim, a court  must evaluate the "risk of an erroneous deprivation of [a  property] interest through the procedures used, and the  probable value, if any, of additional or substitute procedural  safeguards."  Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Although the new AVS rules, like the old rules, contain no  explicit provision allowing an owner to challenge a violation's  status before it has been entered into the AVS, see AVS  Rules, 65 Fed. Reg. at 79,666 (to be codified at 30 C.F.R.    773.25(a)), the new rules add other procedural protections. Responding to due process concerns, the Office of Surface  Mining's new 30 C.F.R.   773.14, provides that an entity  challenging AVS listings may be entitled to a provisional  permit.  See AVS Rules, 65 Fed. Reg. at 79,664.  This affects  the Mathews v. Eldridge calculus.  The old set of rules, which  are the subject of this lawsuit, cannot be evaluated as if  nothing has changed.  A new system is now in place.  We  therefore must vacate this aspect of the district court's decision as moot.  See Fusari v. Steinberg, 419 U.S. 379, 386,  388-89 (1975);  see also Kremens v. Bartley, 431 U.S. 119, 128  (1977) (suggesting that mootness determination can be colored by interest in avoiding premature constitutional adjudication).

B.

11
NMA argued that the definition of "owned and controlled"  in   773.5 of the old regulations was unconstitutionally vague  and that the Office of Surface Mining should have adopted  substantive rebuttal standards to overcome the presumptions  set forth in the definition.  See Brief of Appellant at 39-40. The new rules eliminate the presumptions and, in place of the  former definition of "owned or controlled," substitute two new  definitions of "own, owner, or ownership" and "control or  controller."  See AVS Rules, 65 Fed. Reg. at 79,662 (to be  codified at 30 C.F.R.   701.5).  The new rules also list the  types of information one may use to rebut an ownership or control linkage in the AVS.  See AVS Rules, 65 Fed. Reg. at  79,666 (to be codified at 30 C.F.R.   773.25(c)).  In light of  these substantial changes, NMA's vagueness challenge is  moot.  Any opinion regarding the former rules would be  merely advisory.

C.

12
Section 778.14(c) of the old rules required applicants to  submit "[a] list of all violation notices received by the applicant during the three-year period preceding the application  date, and a list of all outstanding violation notices received  prior to the date of the application by any surface coal mining  operation that is deemed to be owned or controlled by the  applicant."  30 C.F.R.   778.14(c) (1999).  Because the new  version of   778.14(c) is to the same effect, see AVS Rules, 65  Fed. Reg. at 79,669 (to be codified at 30 C.F.R.   773.14(c)),  NMA's claim that the rule exceeds the Interior Department's  statutory authority is not moot.


13
Under the Act, applicants must list all "notices of violations  ... incurred by the applicant in connection with any surface  coal mining operation during the three-year period prior to  the date of application."  30 U.S.C.   1260(c).  The rule,  NMA points out, seeks information beyond the three-year  cutoff--namely, "a list of all outstanding violation notices  received prior to the date of the application by any surface  coal mining operation that is deemed to be owned or controlled by the applicant" regardless of the date.  This is true,  but not determinative.  NMA fails to appreciate the distinction between violations incurred by the applicant and violations incurred by entities owned or controlled by the applicant.  The three-year cutoff in   1260(c) of the Act applies  only to violations by the applicant itself;  it does not place any  time limit on the other information   778.14(c) of the regulations requires.  We have held that "the Act's explicit listings  of information required of permit applicants are not exhaustive, and do not preclude the Secretary from requiring the  states to secure additional information needed to ensure  compliance with the Act."  In re Permanent Surface Mining Regulation Litig., 653 F.2d 514, 527 (D.C. Cir. 1981);  see  National Mining Ass'n v. Department of the Interior, 177  F.3d 1, 9 (D.C. Cir. 1999).  There is not the slightest doubt  that the information sought through the regulation will help  ensure compliance with the Act.  Under   1260(c), a permit  may not be granted to an applicant if such related entities are  in violation of the Act at the time of the application and have  not taken steps to rectify the situation.  We therefore reject  NMA's attack on   778.14(c).

D.

14
This brings us to NMA's claim that the old rules violate  "state primacy."  By "state primacy," NMA refers to the  Act's giving power to state agencies to issue permits pursuant  to federally-approved state programs.  See 30 U.S.C.    1260(a).  The Department of the Interior is empowered to  approve or disapprove state programs, see 30 U.S.C.    1253(b), and to establish regulatory requirements for these  programs, see 30 U.S.C.   1251(b).  But once the Secretary  approves a program, permits are to be issued and revoked by  the designated "regulatory authority," rather than the Interior Department.  See also Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 288-89 (4th Cir. 2001) (describing the "cooperative federalism" envisioned by  the statute).


15
According to NMA, the old rules "effectively strip[ped] the  state of its exclusive permitting authority under   510 [of the  Act], prohibiting the state from issuing a permit if the  applicant [was] shown in the AVS as linked to:  unabated  violations issued by other states;  or violations issued by  OSM."  See Brief of Appellant at 51.  The offending rules  were   773.23(b) and    773.24-.25, which NMA described as  prohibiting a "state from allowing the applicant to demonstrate that :  (1) it is not linked by ownership/control to the  alleged violator(s);  (2) that the violations have been abated; or (3) that the violations are invalid."  Id.  In its supplemental brief NMA admits that the rule (30 C.F.R.    773.25(b)(3)(i)) giving the Office of Surface Mining "plenary authority" over information on the AVS has been removed. We think the rest of NMA's state primacy challenge is also  moot.


16
NMA also contended that state primacy was undercut by  30 C.F.R.   773.23(b)(2) (1999), which, it claimed, barred  states from issuing permits when the AVS showed links to  unabated violations issued by other states or by OSM.  It is  by no means clear that the new regulations continue this  practice.  Under the new   773.11(a), a regulatory authority  is required to review information from the AVS as well as  "any other available information" to establish an applicant's  compliance history.  AVS Rules, 65 Fed. Reg. at 79,664 (to be  codified at 30 C.F.R.   773.11).  Section 773.12 directs the  regulatory authority to make its decision based on the information gathered under   773.11.  See id. (to be codified at 30  C.F.R.   773.12).  There is no readily apparent provision  indicating that information from the AVS is to be given  controlling weight.  Likewise, there is nothing in the new    773.23 that indicates that AVS information should control a  regulatory authority's decision to rescind a permit as improvidently issued.  See AVS Rules, 65 Fed. Reg. at 79,665 (to be  codified at 30 C.F.R.   773.23).  Since nothing indicates that  the new regulations require AVS information to control state  decisions, the remainder of NMA's state primacy challenge is  moot.

E.

17
Because rules of the Interior Department's Office of Hearing and Appeals (OHA) were not changed by the new rulemaking, NMA's original challenge to those rules--43 C.F.R.   4.1374 and 4.1384--presents a live controversy.  Both  rules place the "burden of persuasion" on those challenging  the validity of a decision to rescind a permit as improvidently  granted ( 4.1374(b)), and to those challenging decisions of  the Office of Surface Mining regarding an ownership or  control link in the AVS or the status of a violation reported  there ( 4.1384(b)).


18
When it originally promulgated these regulations, the Office of Surface Mining thought that such an allocation of the burden of proof was permitted by   7(c) of the Administrative  Procedure Act.  See Use of the Applicant/Violator System in  Surface Coal Mining and Reclamation Permit Approval; Standards and Procedures for Ownership and Control Determinations, 59 Fed. Reg. 54,306, 54,360 (Oct. 28, 1994) [hereinafter Use of the AVS] (citing APA   7(c), 5 U.S.C.   556(d)). Relying on our decision in Environmental Defense Fund, Inc.  v. EPA, 548 F.2d 998 (D.C. Cir. 1976), it concluded that "OSM  properly bears only the burden of going forward with proof,  not the ultimate burden of persuasion."  Use of the AVS, 59  Fed. Reg. at 54,360.


19
Section 7(c) says that "[e]xcept as otherwise provided by  statute, the proponent of a rule or order has the burden of  proof."  5 U.S.C.   556(d).  In Environmental Defense Fund,  we interpreted "burden of proof" to mean only the burden of  production or "going forward."  See Environmental Def.  Fund, 548 F.2d at 1004 & n.14.  The Supreme Court, in dicta,  later agreed with us.  See NLRB v. Transportation Mgmt.  Corp., 462 U.S. 393, 404 n.7 (1983).  However, shortly before  the Department of the Interior approved the rules in this  case, the Supreme Court changed its position.  In Greenwich  Collieries, it concluded that the "burden of proof" in   7(c)  meant "the burden of persuasion."  Director, Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267,  276 (1994).


20
NMA argues that the regulations cannot be valid because  they shift the burden of proof, in violation of the Administrative Procedure Act.  But this argument only succeeds if one  ignores the other language in   7(c).  The statute says that  the proponent of an order bears the burden of proof "[e]xcept  as otherwise provided by statute."  5 U.S.C.   776(d) (emphasis added).  We have already concluded that the power to  suspend permits that were improvidently granted derives  from OSM's power to "order the suspension, revocation, or  withholding of any permit for failure to comply with any of  the provisions of this chapter or any rules and regulations  adopted pursuant thereto."  30 U.S.C.   1211(c)(1);  National  Mining Ass'n v. United States Dep't of the Interior, 177 F.3d  1, 9 (D.C. Cir. 1999).  We have also concluded that the obligation to comply with the provisions of this chapter means  the obligation to comply with the requirements of 30 U.S.C.    1260(c).  That section provides that when the regulatory  authority is aware of an "operation owned or controlled by  the applicant [that] is currently in violation" of state or  federal rules, "the permit shall not be issued until the applicant submits proof that such violation has been corrected or  is in the process of being corrected."  30 U.S.C.   1260(c)  (emphasis added).  In short, Congress has allocated the  burden of proving compliance with the Act.  Cf. Steadman v.  SEC, 450 U.S. 91, 96-97 (1981) (applying standards of proof  from   7(c) because Congress had not otherwise provided). If, at any point, a permit-holder is unable to submit proof that  its permit is not linked to a violator, it is no longer in  compliance with   1260(c) and the Secretary may rescind the  permit.  It follows that when challenging OSM's decision to  rescind a permit as improvidently granted, the permit holder  properly bears the burden of persuasion.


21
43 C.F.R.   4.1374 covers only decisions to rescind improvidently granted permits.  But the same allocation of burdens  of proof is made in 43 C.F.R.   4.1384 (1999), which governs  review of OSM's decisions regarding the existence and status  of ownership and control links in the AVS.  NMA contends  that OSM should bear the burden of proving that a linkage  should be entered into the AVS at all.  To NMA, the OSM is  the "proponent" of an administrative order to enter information into the AVS, and   4.1384 is invalid even if   4.1374 is  valid.  But this view distorts the statute:  30 U.S.C.   1260(c)  places the burden of proof on the applicant, and no one else. The regulatory authority deciding whether to issue a permit  uses the AVS as a source of information about potential  violations.  If NMA's view were correct, then the question  whether the permit should be issued would shift from a  proceeding before a state regulatory agency where the applicant bears the burden of proof to a federal proceeding over  the accuracy of the AVS information where OSM bears the  burden of proof.  That result is inconsistent with the statute.


22
It is true that the Interior Department did not explicitly  rely on the foregoing rationale in its preamble to the OHA  rules.  Ordinarily, when an agency reaches the proper conclusion for the wrong reasons, the courts remand the rule to the  agency for further consideration.  See SEC v. Chenery Corp.,  318 U.S. 80, 95 (1943).  However, we do not do so here. When the language of the statute commands a particular  outcome--as 30 U.S.C.    1211 and 1260 do here--the fact  that the agency states an incorrect legal rationale is insufficient to require a remand.  See Motion Picture Ass'n of Am.  v. Oman, 969 F.2d 1154, 1158 (D.C. Cir. 1992).  In this case, a  remand would be pointless.  As Judge Friendly stated,  "Chenery does not mean that any assignment of a wrong  reason calls for reversal and remand;  this is necessary only  when the reviewing court concludes there is a significant  chance that but for the error the agency might have reached  a different result."  Henry J. Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 211.

II.

23
We therefore vacate the district court's judgment with  regard to the following challenges:  (1) the due process challenge to "the rules" as a whole;  (2) the challenge to the rules'  lack of provisional permits;  (3) the challenge to 30 C.F.R.    773.5 (1999) as vague as well as the lack of rebuttal  standards;  (4) the claim that the rules--specifically, 30  C.F.R.    773.23, 773.24 & 773.25 (1999)--violated the Act's  "state primacy" requirement.  With regard to each of these  challenges, we order that the district court dismiss them as  moot.  We affirm the district court's ruling that 30 C.F.R.    778.14 (1999) does not impermissibly require extra information, and that the Office of Hearing and Appeals rules, 43  C.F.R.    4.1374, 4.1384 (1999), do not improperly shift the  burden of proof.


24
So ordered.

