No. 2007-5108.

528 F.3d 1344 (2008)

CONSOLIDATION COAL COMPANY, Consol of Pennsylvania Coal Company, Consol of Kentucky Inc., Eighty Four Mining Company, Helvetia Coal Company, Island Creek Coal Company, Kent Coal Mining Company, Keystone Coal Mining Corporation, Laurel Run Mining Company, McElroy Coal Company, Nineveh Coal Company, Quarto Mining Company, Eagle Energy, Inc., Elk Run Coal Company, Inc., Goals Coal Company, Green Valley Coal Company, Independence Coal Company, Inc., Knox Creek Coal Corporation, Marfork Coal Company, Inc., Martin County Coal Corporation, Peerless Eagle Coal Company, Performance Coal Company, Rawl Sales & Processing Company, Sidney Coal Company, Inc., Stone Mining Company, Apogee Coal Company, Arch Western Resources, LLC, Canyon Fuel Company, LLC, Catenary Coal Company, Coal-Mac, Co., Dal-Tex Coal Corporation, Hobet Mining, Inc., Mingo Logan Coal Co., Kingston Resources, Inc., Paynter Branch Mining, Inc., Pioneer Fuel Corporation, Plateau Mining Corporation, Rag Cumberland Resources, L.P., Rag Emerald Resources, L.P., Twentymile Coal Company, Coastal Coal Company, LLC., Coastal Coal-West Virginia, LLC, Eastern Associated Coal Corporation, Evergreen Mining Company, Mid-Vol Leasing, Inc., Mountaineer Coal Development Company, Old Ben Coal Company, Shipyard River Coal Terminal Company, Riverside Energy, Inc., Virginia Crews Coal Company, Clintwood Elkhorn Mining Company, Gatliff Coal Company, Premier Elkhorn Coal Company, Perry County Coal Corporation, Glamorgan Coal Company, LLC, Terry Eagle L.P., Nicholas-Clay Land & Mineral, Inc., Nicholas-Clay Company, LLC, and Alex Resources, Inc., Genwal Resources, Inc., Pacific Coast Coal Company, Usibelli Coal Mine, Inc., Powder River Coal Company, West Ridge Resources, Inc., United States Steel Mining Company, LLC, Covenant Coal Corporation, and Rapoca Energy Company, LLC (now known as Wellmore Energy Company, LLC), Plaintiffs, and Jim Walter Resources, Inc., Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

June 11, 2008.

Attorney(s) appearing for the Case

Paul A. Horowitz, Baker & McKenzie LLP, of New York, NY, argued for plaintiff-appellee. With him on the brief were Steven H. Becker, Charles H. Critchlow, and Suzanne I. Offerman.

Jonathan F. Cohn, Deputy Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson, Director; Todd M. Hughes, Deputy Director; and Tara K. Hogan, Trial Attorney. Of counsel on the brief was Daniel W. Kilduff, Office of the Solicitor, United States Department of the Interior, of Washington, DC.

Before NEWMAN, PROST, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Appellant United States appeals from the United States Court of Federal Claims's grant of summary judgment that application of the Surface Mining Control and Reclamations Act of 1977 (SMCRA) reclamation fee to export sales of coal violates the Export Clause of the Constitution. We reverse and remand.


This case reaches us after a long history, including a previous appeal to this court. The factual background was explained...

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