National Mining Ass’n v. Kempthorne

After the Court called for a response, Public Citizen served as co-counsel for respondent Kentucky Resources Council, Inc., which is an intervenor in the litigation. The Surface Mining Control and Reclamation Act prohibits surface mining in a number of areas, including near schools and graveyards and in National Parks, unless the mining rights were “valid existing rights” prior the enactment of the statute. The Office of Surface Mining issued a final agency rule which provided that mining companies had to have had mining permits, or made a good faith effort to obtain them, at the time of the enactment in order to have valid existing rights to mine. The National Mining Association challenged the rule, and the D.C. Circuit upheld it under Chevron analysis. The questions presented are:

  1. Whether the D.C. Circuit correctly held that a statutory phrase is necessarily ambiguous and triggers Chevron deference because a single word within the phrase is itself ambiguous.
  2. Whether the D.C. Circuit correctly declined to narrow the Office of Surface Mining Reclamation and Enforcement’s statutory construction even though its interpretation will trigger takings claims.

The Supreme Court denied cert.