United States v. Magnesium Corp. of America (2010)

Fair notice concerns will arise “when an agency advances a novel interpretation of its own regulation in the course of a civil enforcement action.” United States v. Magnesium Corp. of America, 616 F.3d 1129, 1144 (10th Cir. 2010).

United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1139 (10th Cir.2010).

Thus, the law must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1144 (10th Cir. 2010) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).

BACKGROUND A. Colorado’s federally-derived authority to regulate hazardous waste In 1976, Congress enacted the Resource Conservation and Recovery Act (“RCRA”), see 42 U.S.C. §§ 6901 -6992k, in part to establish “a comprehensive regulatory scheme for the transportation, treatment, and disposal of hazardous wastes.” United States v. Magnesium Corp., 616 F.3d 1129, 1131-32 (10th Cir.2010) (citing RCRA’s Subtitle C, codified at 42 U.S.C. §§ 6921 -6939f).

As Mr. Hysten is challenging the district court's grant of summary judgment, the facts in this section are presented "in the light most favorable to [him].” United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1136 (10th Cir.2010). 2 .

Pertinent here is a Tenth Circuit decision by then-Judge Gorsuch explaining that, although agencies are free to change their interpretations of regulations, in doing so they are obligated to “cogently explain” their decisions and refrain from imposing penalties based on their revised interpretations without “fair notice.” United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1144 (10th Cir. 2010).

See, e.g., United States v. Magnesium Corp. of Am., 616 F.3d 1129 , 1137 n. 7 (10th Cir. 2010) (“[I]ssues adverted to but unaccompanied by some effort at developed argumentation are deemed waived”) (internal quotation marks omitted); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (deeming several issues waived when the support for each consisted of “mere conclusory allegations with no citations to the record or any legal authority for support.”); …

See State Farm, 463 U.S. at 48 (“[A]n agency must cogently explain why it has exercised its discretion in a given manner . . . .” (emphasis added)); see also United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1144 (10th Cir. 2010) (same).

See United States v. Magnesium Corp. of Am., 616 F.3d 1129 , 1137 n. 7 (10th Cir.2010) (“ ‘[I]ssues adverted to’ but ‘unaccompanied by some effort at developed argumentation, are deemed waived.’ ”) (quoting Murrell v. Shalala, 43 F.3d 1388 ,1389 n. 2 (10th Cir.1994)).

According to one recent survey, the Fifth Circuit has adopted our approach and “the Eighth and Third Circuits have mentioned [it] in dicta,” but “[t]he First, Second, Fourth, Sixth, Seventh, and Ninth Circuits agree that changes in interpretations do not require notice and comment because both the original and current position constitute interpretive rules.” Warshauer v. Solis, 577 F.3d 1330, 1338 (11th Cir. 2009); see also United States v. Magnesium Corp. of Am., 616 F.3d 1…

According to one recent survey, the Fifth Circuit has adopted our approach and “the Eighth and Third Circuits have mentioned [it] in dicta,” but “[t]he First, Second, Fourth, Sixth, Seventh, and Ninth Circuits agree that changes in interpretations do not require notice and comment because both the original and current position constitute interpretive rules.” Warshauer v. Solis, 577 F.3d 1330, 1338 (11th Cir.2009); see also United States v. Magnesium Corp. of Am., 616 F.3d 11…

See United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1139 (10th Cir.2010) (citing SBC, Inc., 414 F.3d at 498 ).