Jurisdictional Statement — Barnes & Tucker Co. v. Pennsylvania

| Supreme Court, U. &%

lm FILED

JUL 5 Sil

Supreme Court of the

October Term, 1977.

No. @7-44 3

BARNES & TUCKER COMPANY,

Appellant,

v.

COMMONWEALTH OF PENNSYLVANIA,

Appellee.

JURISDICTIONAL STATEMENT

BERNARD G. SEGAL,

James D. Crawroro,

Attorneys for Appellant.

SCHNADER, Harrison, SEGAL & LEwIs,

1719 Packard Building,

Philadelphia, Pennsylvania. 19102

(215) 491-0662

Cioyp R. MELLOTT,

EcKErRT, SEAMANS, CHERIN & MELLOTT,

42nd Floor, 600 Grant Street,

Pittsburgh, Pennsylvania. 15219

FRANK A, SINON,

Ruoaps, Stvon & READER,

410 North Third Street,

Harrisburg, Pennsylvania. 17108

Of Counsel.

international Printing Co., 711 So. 60th St., Phila., Pa, 19143 — Tel. (218) 727-8711

Be IE cS nbeeedcUndsacdcddngectesctccece

Ne ae . eaaian 5

I Dads 1 os cage dbendenee inane

ee ee a cuupebesedasennce

1. This Case Presents an Unwarranted and Unprece-

dented Ruling That a State Does Not Take Property

in Violation of the Due Process Clause of the Four-

teenth Amendment When That State Regulates a

Citizen's Property in a Fashion That Gives It a

Substantial Negative Value Despite the Fact That

That Citizen Neither Is Presently Using That Prop-

erty Nor Ever Used It Unlawfully ...............

2. Even Assuming That the Court Below Correctly Held

That Appellant Might Be Liable Without Fault or

Foreseeability for Post-Mining Treatment of Water

Generated in Its Own Former Mine, Certainly the

Due Process and Equal Protection Clauses Pro-

hibited That Court From Upholding Legislation

Which Imposed Similar Liability With Respect to

the Five-sixths of the Drainage Involved in This

Case Which Flows Into Appellant's Former Mine

From Neighboring Abandoned and Active Mines . .

21

31

TABLE OF CITATIONS.

Cases: Page

Cohen v. California, 403 U. S. 15 (1971) 20... . ccc cece eens 3

Commonwealth v. Harmar Coal Co., 452 Pa. 77, 306 A. 2d

871 (1973), appeal dismissed, 415 U. S, 903 (1974) .... 32

Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282

SEE Sos kebsdubacvonsendesanedaysé0teeddncelensa 3

Erie Railroad Co. v. Board of Public Utility Commissioners,

BS Bi GH, GEG CHD. ca cnvvcvecevcecescaseveccvcces 27, 28

Goldblatt v. Town of Hempstead, 369 U. S, 590 (1962) ..... 25, 28

Hadacheck v. Sebastian, 239 U.S, 304 (1915) .........055. 25

Lawton v. Steele, 152 U. S. 133 (1894) ........ccceeeenees 15

Mugler v. Kansas, 123 U. S, 623 (1887) ........cceeeeeees 28

Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922). .24, 25, 26, 27

Pierce Oil Corp. v. City of Hope, 248 U. S, 498 (1919) ..... 25

Queenside Hills Realty Co, v. Saxl, 328 U. S. 80 (1946) ..... 25

Reinman v. Little Rock, 237 U. S. 171 (1915) ............. 25

Turner Elkhorn Mining Co. v. Brennan, 385 F. Supp. 424

CED, Tes Hk ED hos been decnaressesccneccecconcecs 30

Union Oil Co. v. Morton, 512 F. 2d 743 (9th Cir. 1975) ..... 27

Urie v. Thompson, 337 U. S. 163 (1949) ...... cece cee e eee 1

Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 (1976) ....29, 30

Warren Trading Post Co. v. Arizona Tax Commission, 380

an Oe ED WelsiponcerdcedéceSaaphbnedendacns 3

Miscellaneous:

Act of December 15, 1965, P. L. 1075, 35 P. S. § 760.1 et seq. 33

Berger, “A Policy Analysis of the Taking Problem”, 49

see ek EE. Wid g danaas duchies bincdcce 35

Black Lung Benefits Act, 30 U. S. C. §932(c)(i) .......... 29, 30

Coal Mine Sealing Act of 1947, Section 2(2), Act of June 30,

ee 4 FT "FR er ll

Pennsylvania Clean Streams Law, Act of July 31, 1970, P. L.

No, 222, §§ 2, 12, 16, 35 Pa. Stat. Ann. §§ 691.3, 691.315

OD GE, chovcasenasevakaees 2, 3, 5, 8, 9, 10, 13, 14, 15, 19, 21

S. Rep. No. 92-743, 92d Cong., 2d Sess., reprinted in [1972]

U. S. Code Cong. and Ad. News, 2305 ............... 3

SB U. ©. C, Gaatiam BEB (S]) ccc ccccedcccvcvcvccccveesses 3

Supreme Court of the United States

Ocrosper TERM, 1977.

No.

BARNES & TUCKER COMPANY,

Appellant,

v.

COMMONWEALTH OF PENNSYLVANIA,

Appellee.

JURISDICTIONAL STATEMENT.

Barnes & Tucker Company asks this court to note

jurisdiction to review the judgment of the Supreme Court

of Pennsylvania entered in the above case on February

28, 1977.’

1, The Supreme Court of Pennsylvania had entered an earlier

decision in this case which remanded the cause to the Common-

wealth Court. ony the Supreme Court's decision did conclude

certain issues a lant, Barnes & Tucker did not then

take an = to Co this because it + t still have pre-

vailed on merits upon the remand to the Commonwealth

Court. a pe Png cause ne. ad been resolved, the —_

judgment u e Court ennsylvania may treated as

into wy a <= with to which review is here

Thompson, U. S. 163 (1949).

2 Jurisdictional Statement

OPINIONS BELOW.

The final opinion of the Supreme Court of Pennsyl-

vania (“Barnes & Tucker (II)”) (A117-A130) * is reported at

— Pa, —, 371 A. 2d 461 (1977). The opinion of the Com-

monwealth Court of Pennsylvania upon remand (“the re-

mand opinion”) (A98-A116) is reported at 23 Pa. Commw.

Ct. 496, 353 A. 2d 471 (1976). The initial opinion of the

Supreme Court of Pennsylvania (“Barnes and Tucker (I)”)

(A70-A97) is reported at 455 Pa. 392, 319 A. 2d 871

(1974). The opinion of the Commonwealth Court follow-

ing the hearing on this case (“the trial opinion”) (A10-

A69) is reported at 9 Pa. Commw. Ct. 1, 303 A. 2d 544

(1973). The opinion of the Commonwealth Court on the

motion for preliminary injunction (“the preliminary in-

junction opinion”) (Al-A9) is reported at 1 Pa. Commw.

Ct. 552 (1971).

JURISDICTION.

This case arose on an amended complaint in equity

against appellant brought by the Commonwealth of Penn-

sylvania on its own behalf and on behalf of the Depart-

ment of Environmental Resources pursuant to the

Pennsylvania Clean Streams Law, 35 Pa. Stat. Ann.

§§ 691.1-691.1001 (A131-A163).

Direct appeal to this Court is taken from the judgment

of the Supreme Court of Pennsylvania affirming the order

of the Commonwealth Court of Pennsylvania making per-

manent a mandatory injunction under sections 2, 12 and

2. References to “A” pages are to pages in the appendix to this

statement. References in the form “R. —a” are to pages in the

Reproduced Record before the Pennsylvania Supreme in its

initial consideration of this case; and references in the form “R. —b”

are to pages in the Supplemental Reproduced Record which was

added to the record before the Pennsylvania Supreme Court in its

review of the remand decision.

Jurisdictional Statement 3

16 of the 1970 amendments to the Pennsylvania Clean

Streams Law, Act of July 31, 1970, P. L. No. 222, §§ 2, 12,

16, 35 Pa. Stat. Ann. §§ 691.3, 691.315(d), 601(a); (A135,

A151, Al57). Appellant argued in the courts below that

the 1970 amendments were unconstitutional insofar as

they retroactively required mine operators who had ceased

operation before the passage of the amendments to abate

any natural post-mining discharge occurring after the

effective date of the amendments.

The Supreme Court of Pennsylvania entered its judg-

ment on February 28, 1977 and denied appellant's timely

petitions for reargument on April 6, 1977. Notice of

appeal, a copy of which is attached at A164-A166, was

filed with the Prothonotary of the Supreme Court of Penn-

sylvania for the Middle District on June 30, 1977.

This Court has jurisdiction pursuant to 28 U. S. C.

Section 1257(2).

This appeal lies because the highest court of the

Commonwealth of Pennsylvania has sustained the abate-

ment provisions of the Act of July 31, 1°70 against a chai-

lenge that they are unconstitutional as applied to those

mine operators who had ceased operation before the effec-

tive date of that act. Cohen v. California, 403 U. S. 15

(1971); Warren Trading Post Co. v. Arizona Tax Com-

mission, 380 U. S. 685 (1965); Dahnke-Walker Milling Co.

v. Bondurant, 257 U. S. 282 (1921).

4 Jurisdictional Statement

QUESTIONS PRESENTED.

1. Does not a state statute violate the Due Process

Clause of the Fourteenth Amendment when, under the

guise of police power regulation of present mining activi-

ties, it imposes upon the former operator of a closed and

now valueless mine, which had been operated and sealed

without fault, the perpetual duty to treat water emanating

from that mine by a retroactive declaration based merely

on the fact that the operator had formerly operated the

mine?

2. Even assuming that a state legislature may impose

such a duty upon a former mine operator with respect to

drainage generated in the mine it had actually operated,

does not the statute violate the Due Process and Equal

Protection Clauses when it imposes a perpetual obligation

to pump and treat water that flows into that mine from

other, uphill mines—the largest of which continues to op-

erate with the knowledge that its unpumped mine drainage

flows into the downhill mines—when the result is that five-

sixths of the water treated comes from those other mines.

3. Assuming that the Constitution prohibits the state

legislature from imposing retroactively upon a faultless

former mine operator the duty to treat post-mining dis-

charges, may the state courts impose that retroactive duty

upon the former mine operator on a new theory of com-

mon law public nuisance—based in large part upon the

regulating statute—without violating the Due Process and

Equal Protection Clauses?

Jurisdictional Statement 5

STATJTE INVOLVED.

The pertinent provisions of the 1970 amendments to

the Pennsylvania Clean Streams Law are as follows:

Section 2. Section 3 of the act is amended to

read:

Section 3. Discharge of Sewage and Industrial

Wastes Not a Natural Use.—The discharge of sewage

or industrial waste or any [noxious and deleterious

substances] substance into the waters of this Com-

monwealth, which [is or may become inimical and

injurious to the public health, or to animal or aquatic

life, or to the uses of such waters for domestic or in-

dustrial consumption, or for recreation] causes or con-

tributes to pollution as herein defined or creates a

danger of such pollution is hereby declared not to be

a reasonable or natural use of such waters, to be

against public policy and to be a public nuisance.

Section 12. Sections 315 and 316 of the act,

added August 23, 1965 (P. L. 372), are amended to

read:

[(d) Any permit approving the drainage and dis-

posal of industrial wastes from a coal mine and issued

by the board prior to the effective date of this act

shall be deemed to be a permit issued pursuant to this

section. The permit shall be valid for one year from

the effective date of this act or for such additional

period as the board might allow. Nothing herein shall

limit the board’s power to modify, suspend, or revoke

any such permit under the provisions of subsection

Jurisdictional Statement

(c) of this section] Operation of Mines.—(a) No person

or municipality shall operate a mine or allow a dis-

charge from a mine into the waters of the Common-

wealth unless such operation or discharge is at'thor-

ized by the rules and regulations of the board or such

person or municipality has first obtained a permit from

the department. Operation of the mine shall include

preparatory work in connection with the opening or

reopening of a mine, backfilling, sealing, and other

closing procedures, and any other work done on land

or water in connection with the mine. A discharge

from a mine shall include a discharge which occurs

after mining operations have ceased, provided that

the mining operations were conducted subsequent to

January 1, 1966, under circumstances requiring a

permit from the Sanitary Water Board under the pro-

visions of section 315(b) of this act as it existed under

the amendatory act of August 23, 1965 (P. L. 372).

The operation of any mine or the allowing of any dis-

charge without a permit or contrary to the terms or

conditions of a permit or contrary to the rules and

regulations of the board, is hereby declared to be a

nuisance. Whenever a permit is requested to be

issued pursuant to this subsection, and such permit is

requested for permission to operate any mining op-

erations, the city, borough, incorporated town or town-

ship in which the operation is to be conducted shall

be notified by registered mail of the request, at least

ten days before the issuance of the permit or before a

hearing on the issuance, whichever is first.

Section 16. The title of Article VI and sections

601, 602, 605 and 609 of the act are amended to read:

Jurisdictional Statement 7

ARTICLE VI

PROCEDURE AND ENFORCEMENT

Section 601. Abatement of [Pollutions] Nuéi-

sances; Restraining Violations—(a) [All pollutions

hereinbefore declared to be nuisances or maintained

contrary to the provisions of this act,] Any activity

or condition declared by this act to be a nuisance,

shall be abatable in the manner [now] provided by

law or equity for the abatement of public nuisances.

In addition, suits to abate [pollution of any of the

waters of the Commonwealth] such nuisances or suits

to restrain or prevent any violation of this act may be

instituted in equity or at law in the name of the

Commonwealth upon relation of the Attorney Gen-

eral, or upon relation of any district attorney of any

county, or upon relation of the solicitor of any mu-

nicipality affected, after notice has first been served

upon the Attorney General of the intention of the

district attorney or solicitor to so proceed. Such

proceedings may be prosecuted in the [court of com-

mon pleas of Dauphin County] Commonwealth Court,

or in the court of common pleas of the county where

the [nuisance has been committed, or of any county

through which or along the borders of which flows the

water into which such pollution has been discharged

at any point above] activity has taken place, the con-

dition exists, or the public affected, and to that end

jurisdiction is hereby conferred in law and equity

upon such courts: Provided, however, That no action

shall be brought by such district attorney or solicitor

against any municipality discharging sewage under a

permit of the board heretofore issued or hereafter

issued under this act: And provided further, That,

except in cases of emergency where, in the opinion

8 Jurisdictional Statement

of the court, the exigencies of the cases require im-

mediate abatement of said nuisances, the court may,

in its decree, fix a reasonable time during which the

person or municipality responsible for the nuisances

may make provision for the abatement of the same.

The entire Act of July 31, 1970, P. L. 222, is reprinted in

the appendix hereto at pages A131-A163.

Jurisdictional Statement 9g

STATEMENT OF THE CASE.

The Facts of the Case.

Appellant is the former operator of Mine No. 15, a

self-contained deep bituminous coal mine located, along

with several other independently owned mines, in an area

of Pennsylvania known as the Barnesboro Basin, under

mineral leases covering the “mineable” and “merchant-

able” coal in that mine.* Most of the mine’s approximately

6,600 acres are located in the lowest part of the Basin (9

Pa. Commw. Ct. at 4-5, 303 A. 2d at 545-46; A1l-Al12).

Mine No. 15 was first operated in 1916 and continued

under several different operators until being taken over by

appellant in 1939 (9 Pa. Commw. Ct. at 5-6, 303 A. 2d at

546; Al2-A13). The trial court found, and the court below

accepted, that there is “no credible evidence in this case

that Mine No. 15 was not operated and eventually closed

consistent with statutory law, regulation or licenses pursu-

ant thereto.” (9 Pa. Commw. Ct. at 58, 303 A. 2d at 572;

A65).* For the twenty-one years before the mine was

closed, the state had required drainage permits, and appel-

lant had obtained them. These permits never imposed a

duty on appellant to make provision for post-mining dis-

charge or, indeed, to treat discharge which occurred dur-

ing and as a result of mining operations. ‘Until passage of

the 1965 amendments to the Clean Streams Law, Pennsyl-

vania law did not proscribe, *. ? appellant’s mining per-

3. While there were neither+ ©. ce nor findings of Barnes &

Tucker's continuing property inte: - Mine © ». 15, the Common-

wealth itself has treated Barnes & Tucker es generally having had

only a limited sub-surface interest. Brief for Appellant in the

Supreme Court of Pennsylvania at No. 20, May Term 1974 (Barnes

& Tucker (I)), Appendix B.

4. In its initial decision in this case, the Pennsylvania Supreme

Court found to be “supported by the record” and, therefore, bind-

ing upon it, the Commonwealth Court’s factual findings. (455 Pa.

at 404, 319 A. 2d at 878; AS1).

10 Jurisdictional Statement

mits specifically authorized, the discharge of acid mine

drainage without treatment into already polluted streams

(9 Pa. Commw, Ct. at 8-10, 303 A. 2d at 547-48; A15-

Al7).

In 1965, the Pennsylvania legislature amended that

state's Clean Streams Law to regulate for the first time the

discharge of mine drainage into polluted streams. Those

amendments, however, related only to discharge from the

operation of a mine, and not to post-mining discharge. 35

Pa. Stat. Ann. §§ 691.1, 691.307, 691.315. Although the

amendments contained language which may have justified

the issuance of permits conditioned on making provision

for the treatment of post-mining discharge, no such condi-

tion was contained in any permit issued for Mine No. 15.

The evidence was not disputed that, had Mine No.

15’s operators been able to anticipate a future liability for

post-mining drainage, they could and would have em-

ployed different mining techniques (R. 1012a-l4a; 1082a-

84a; 1145a(52)-(53)). It was equally clear that the

mining after the 1965 amendments was not the cause of the

post-mining discharge (9 Pa. Commw. Ct. at 7, 303 A. 2d

at 547; Al4),

There was still mineable coal in areas of Mine No. 15

on May 10, 1969, when appellant ceased to operate the

mine because “it could not economically afford to pump

and treat the water that it would have to pump from the

mine to continue to operate the mine.” *

5. The Commonwealth Court did not determine whether ap-

pellant had conducted its post-January 1, 1966 winding down opera-

tions pursuant to a statutorily authorized extension of its earlier

yy or under a new permit granted after the effective date of the

965 Amendments, and the Supreme Court held the distinction to

be immaterial. (455 Pa. at 409-10, 319 A. 2d at 880-8]:

AS86-A87). However, the Commonwealth Court did find that

the last two extensions of time granted as to the original permit

were issued with full knowledge that Barnes & Tucker was then in

the process of discontinuing the operation of Mine No. 15, and that

Jurisdictional Statement ll

The sealing of Mine No. 15 was completed in accord-

ance with the requirements of the Department of Mines

and Mineral Industries of the Commonwealth which, at

that time, required the exclusive use of an air seal or one

which “will allow water to flow out of the mine... .”

(9 Pa. Commw. Ct. at 8, 303 A. 2d at 547; Al5). See

Section 2(2) of the Coal Mine Sealing Act of 1947, Act

of June 30, 1947, P. L. 1177, 52 P. S. § 28.2(2).

In late June, 1970, almost a year after it had been

sealed, an acid discharge was discovered breaking through

the ground at the northeastern end of the mine, caused by

the rising waters in the mine? After several attempts to

relieve the discharge, appellant reopened a pumping

facility at Duman Dam, at the southwest end of the mine

and installed facilities there to treat the mine drainage.

The Duman Dam facility was, and still is, operated to

bring the water level in Mine No. 15 below the breakout

areas at the northeast end of the mine (9 Commw. Ct. 19-

24, 303 A. 2d at 552-55; A26-A32). Because of the large

volume of water presently flowing into and accumulating

in Mine No. 15, it is now impossible to seal it perfectly

from adjoining mines or to seal it against a possible break-

out (23 Pa. Commw. Ct. at 502, 353 A. 2d at 474-75;

A102-A103).

Of the 7.2 million gallons of water accumulating in

Mine No. 15 which must be pumped and treated each

day in order to prevent a renewed breakout of acid drain-

age, six million gallons are attributable to the influx of

fugitive waters generated in adjacent mines. (Barnes &

Tucker (II), 371 A. 2d at 465; A124-A125). The trial court

5. (Cont'd. )

the Commonwealth was possessed of sufficient information at that

time to assure, in its grant and conditioning of authority, that the

statutory law and ations then in effect would be fully complied

with, yet did not 1 ©: any post-mining treatment responsibilities

- isn i) a Ct. at 16, 18-19, 303 A. 2d at 551,

12 Jurisdictional Statement

did not attempt to allocate the six million gallons per day

of fugitive inflow into Mine No. 15 among the neighboring

mines in the complex. Nevertheless, it did find that the

still actively operating Colver Mine, which on May 23,

1966 had been discharging 9.48 million gallons per day,

was, by the time of trial, discharging “over 6 million gal-

lons per day less than the earlier date, at a time when less

mining and pillaring had been done in the mine.” (23

Pa. Commw. Ct. at 507, 353 A. 2d at 477; A108). That is,

the Colver Mine had reduced its pumping to some three

or three and one-half million gallons per day. Moreover,

the Commonwealth Court found that Colver’s termination

of pumping had resulted in the accumulation of a three

billion gallon pool pressing against the lower barrier of

the Colver Mine where it abuts Mine No. 15 with a head

of water of between 178 and 200 feet at the time of trial

(Id.).°

Although the trial court found that substantially less

water would need to be pumped to prevent a breakout

were it not for the influx of fugitive waters, it made no

finding as to whether or not the outbreak would have oc-

curred without that influx (23 Pa. Commw. Ct. at 508,

353 A. 2d at 478; A109), despite the fact that appellant

presented substantial testimony that it would not have

(R. 1108a-12a; 1114a-15a; see R. 639a, 646a, 1108a-09a).

In any case, the trial court found that the only way to

prevent future outbreaks, now and for the foreseeable fu-

6. While the Commonwealth Court noted the tion of

the Colver Mine owners at the time a decision was made to reduce

umping that the excess drainage would flow into the Sterlin

Mt ine Complex, the quantity of sandstone in the area, “which woul

act like a pose or the transference of mine water,” and the

existence of cut throughs, pillarings and breached barriers between

the Colver and Sterling Mines and Mine No. 15 would make it

inevitable that a substantial portion of this drainage would find its

way into Mine No. 15 (23 Pa. Commw. Ct. at , 353 A. 2d at

476-477; A106-A109).

Jurisdictional Statement 13

ture, would be to pump and treat 7.2 million gallons of

water per day, five-sixths of which originates in mines

over which appellant never has had any control whatso-

ever, at a present monthly cost of between $30,000 and

$50,000, which duty and cost both the trial court and the

court below imposed on appellant (23 Pa. Commw. at

508, 353 A. 2d at 478; Al09-A110).

The Preliminary Injunction Opinion.

After the breakout, appellant's existing pumps at

Duman Dam had been modified to provide for treatment of

acid drainage and reopened under a stipulation between

appellant and the Commonwealth on August 26, 1970.

When the agreement between the parties concerning the

operation of the treatment facilities broke down, the ques-

tion of discharge from Mine No. 15 was presented to the

Honorable James Bowman of the Commonwealth Court in

a preliminary injunction proceeding. On April 13, 1971,

President Judge Bowman issued a preliminary mandatory

injunction under which appellant was required to operate

the Duman Dam treatment facilities and appellant and

the Commonwealth were required to split the cost of that

operation, all pending the resolution of the legal question

of who should pay the treatment costs. 1 Pa. Commw.

Ct. at 560-61; A8-A9.

From the time of the Commonwealth Court's pre-

liminary injunction, which determined that the discharge

from the mines in the Barnesboro Basin produced sub-

stantial additional pollution in the waters of Pennsylvania,

to the present, there has been no question that the Duman

Dam treatment facility should and will be operated. The

question is, as it has been, one of who should pay for the

cost of that uperation. The Commonwealth hes insisted,

and the courts below have eventually decided that, under

the 1970 amendments to the Clean Streams Law, the

14 Jurisdictional Statement

burden should fall on appellant. Appellant urges that the

burden is on the Commonwealth to treat the discharge

from Mine No. 15, as from most other mines abandoned

prior to the 1970 law, and that the Constitution prohibits

the Commonwealth from shifting that burden onto appel-

lant merely because it was the last operator of Mine No. 15.

The Trial Decision.

After twelve days of hearings, and upon a record of

1400 pages of testimony and more than 250 exhibits, the

Commonwealth Court rejected every one of the four dif-

ferent legal theories proposed by the Commonwealth as a

basis upon which to issue a permanent injunction compel-

ling appellant to treat post-mining acid drainage from

Mine No. 15 until such time, if ever, that the water

achieved prescribed quality standards.

After dispensing with two arguments not here in issue,

the court refused to find that the Commonwealth had

stated a cause of action for either statutory or common

law nuisance. With respect to the first, it held that the

drainage from Mine No. 15 did not constitute a nuisance

under the Clean Streams Law “as then in effect.” (9 Pa.

Commw. Ct. at 60, 47, 303 A. 2d at 572, 566; A67). As to

the existence of a common law nuisance, the court con-

cluded (9 Pa. Commw. Ct. at 58-59, 303 A. 2d at 572;

A66 ):

“Considering the legislative history, the lawful

operation and closure of Mine No. 15 at all times and

the other salient facts of this case, we cannot today

declare—solely for the reason that B & T and its

predecessors created a subsurface artificial condition

by reason of mining—that a breakout of mine water

through the forces of nature at work adjunctive to

said artificial condition constitutes a public nuisance

for \vhich B & T is responsible today.”

Jurisdictional Statement 15

Barnes & Tucker (I).

The Pennsylvania Supieme Court accepted the trial

court's findings of fact (455 Pa, at 404, 319 A. 2d at 878;

A81), and agreed with its conclusions of law as to two of

the Commonwealth’s two theories of liability. However,

it found that relief could be granted on the basis of either

statutory or common law nuisance. The court first de-

clared a statutory remedy to be available under the 1970

amendments to the Clean Streams Law, which were

adopted after appellant had abandoned Mine No. 15 (455

Pa. at 409-10, 319 A. 2d at 880-81; A85-A87), holding that

its action did not give the 1970 amendments retroactive

effect since, inter alia, the condition sought to be abated, if

not the acts which caused it, occurred after the amend-

ments (455 Pa. at 417-18; 319 A. 2d at 884-85; A94-A95).’

In the alternative, it held that liability could be premised

on a finding of common law public nuisance despite the

“absence of facts supporting concepts of negligence, fore-

seeability or unlawful conduct.” (455 Pa. at 414, 319 A, 2d

at 883; A91).

Nonetheless, the Court recognized that under the rule

of Lawton v. Steele, 152 U. S. 133 (1894), the imposition

of liability upon appellant might still weigh so oppressively

and so exceed the parameters of reason as to constitute a

“taking of property.” (455 Pa. at 418-19, 319 A. 2d at 885;

A95-A96). Accordingly, it remanded the cause to the

Commonwealth Court to determine, first, the precise

nature of relief which would be warranted and second,

whether the imposition of such relief would be within

constitutional limits.

7. The court assumed that the 1970 Amendments were ap-

plicable only to “those heey discharges where mining opera-

tions have occurred subsequent to a! 1, 1966, under condi-

tions requiring a permit pursuant to Section 315(b) of the 1965

law . . . ,” but rejected appellant's contention that its operations

ducted pursuant to an extended pre-1965 permit did not satisfy

this condition (455 Pa. at 409-10, 319 A. 2d at 880-81; A86-A87).

16 Jurisdictional Statement

The Remand Decision.

Addressing itself to the first remand issue, the Com-

monwealth Court found that, in order to prevent an out-

break of acid drainage, it would be necessary to pump

from the mine and to treat approximately 7.2 million gal-

lons of water per day for the indefinite future, at a cost of

between $30,000 and $50,000 per month (23 Pa. Commw.

Ct. at 502, 508, 353 A. 2d at 474-75, 478; A103, A109-

A110).

The court then proceeded to consider “whether the

only abatement relief order that can be fashioned by this

Court would equate an unconstitutional taking of property

of appellant or be beyond the ‘parameters of reason’... .

(23 Pa. Commw. Ct. at 503, 353 A. 2d at 475; A103). In

holding that it would not, the court relied on the theory

that because appellant did not introduce evidence of its

general “capital structure, assets and liabilities or its profits

or losses,” it had failed a priori to sustain its burden of

showing the order to be unduly oppressive or unreasonable

in constitutional terms (23 Pa. Commw. Ct. at 511-12, 353

A. 2d at 480; A113),

Despite its factual finding that, of the 7.2 million gal-

lons of water per day which appellant would have to pump

and treat, only “approximately 1.2 million gallons per

day are attributable to water generated in Mine No, 15

while approximately six million gallons per day are at-

tributable to fugitive mine water generated in other mines

in the complex and finding its way into Mine Ne. 15,” 23

Pa. Commw. Ct. at 508, 353 A. 2d at 478; A109, the court

held that, despite the magnitude of the liability imposed

upon appellant, the absence of proof that appellant's

activities were the proximate cause of the discharge did

not even raise an issue of constitutional dimensions (23 Pa.

Commw. Ct. at 509-10, 353 A. 2d at 478-79; A110-A112),

Jurisdictional Statement 17 .

Barnes & Tucker (II).

In affirming the Commonwealth Court’s conclusion

that the remedy imposed was not unconstitutional, the

court below rejected out of hand appellant’s argument

that, since the economic effects of Pennsylvania's environ-

mental legislation had already driven appellant’s mine

out of business, the imposition in addition of an affirma-

tive duty to pump and treat drainage from that mine

constituted an unconstitutional taking (371 A. 2d at 464;

A123).

Moreover, instead of concentrating on the constitu-

tional question it had framed in Barnes & Tucker (I),

that is, “whether the Commonwealth’s [otherwise valid]

use of such power in this case would be unduly oppressive

upon Barnes and Tucker. . . .” (455 Pa. at 419, 319 A. 2d

at 886; A97), the court devoted the greatest part of its

opinion to the question of whether the method chosen by

the Commonwealth to abate a declared nuisance consti-

tuted a reasonable exercise of the police power, a question

presumably already decided in favor of the Common-

wealth in its earlier opinion (id. at 418-19, 319 A. 2d at

885-86; A96). Indeed, the court considered appellant's

“ue r-ocess arguments in the context of a holding that

ence ., .ad found the Commonwealth to be “validly em-

ploy, «; °s police power in a reasonable manner to abate

the immediate public nuisance, there can be no finding

of an unconstitutional ‘taking’ by the imposition of the

present abatement order, despite the impact this exercise

of the police power may have on appellant” (371 A. 2d

at 467; A128).

Again, the court below was not swayed by appel-

lant’s argument that it was unduly oppressive to require

it to treat water originating largely in unowned, adjacent

independent mines, because it found that statute to be

18 Jurisdictional Statement

directed, not to the source of the polluted water itself,

but to the source of the discharge (371 A. 2d at 466;

A126-A127). Finally, the court “noted” appellant's failure

to adduce additional evidence that there was an alterna-

tive means of abating the nuisance or that the remedy im-

posed was “unduly oppressive due to its economic impact”

(371 A. 2d at 468; A129), without discussing appellant’s

contention that there was already evidence in the record

sufficient to establish an unconstitutional taking.

}

Jurisdictional Statement 19

THE ISSUES ARE SUBSTANTIAL.

The present appeal brings before this Court the in-

creasingly critical conflict between the efforts of the states

to impose upon users of land the duty to restore the en-

vironment and the constitutional limitations on the right

of state governments to impose upon their citizens

burdens so great that they constitute a taking of property

without just compensation, an issue which is particularly

sharply focused when, as here, the state seeks to apply its

environmental legislation retroactively.

It first raises the question of whether a state statute

violates the Due Process Clause of the Fourteenth Amend-

ment when it imposes potentially limitless liability without

fault upon appellant, the former operator under mineral

leases of an abandoned coal mine, for unforeseeable post-

mining acid discharge from that closed mine. More

specifically, it asks reversal of the decision of the Supreme

Court of Pennsylvania that the 1970 amendments to the

Clean Streams Law do not affect a “taking” prohibited

by the Due Process Clause when they retroactively im-

posed a perpetual duty upon appellant, the former mine

operator, to pump and treat water from its former mine,

at a cost of $360,000 to $600,000 per vear, despite the facts

accepted by the court below that: (1) appellant had oper-

ated that mine at all times lawfully, without negligence

and, for the twenty-one years before abandonment, in

accordance with drainage permits issued by the state, (2)

these permits had expressly authorized discharge of mine

drainage without treatment and contained no requirement

that appellant pump or treat post-mining drainage, (3)

appellant abandoned and sealed the mine in accordance

with the only method permitted by state law, a method

intentionally designed by the state to allow post-mining

discharges should water accumulate in the sealed mine,

20 Jurisdictional Statement

(4) appellant had abandoned that mine because newly

enacted environmental regulations made it economically

unfeasible for appellant to remove the coal still left in the

ground, (5) appellant has no interest in its former mine

against which to charge the cost of pumping and treating

that mine discharge, (6) there is no way that appellant

can now seal the mine to prevent the natural discharge of

mine water, (7) that discharge broke out from an area

near the surface which had been mined by a previous

operator before appellant had obtained any interest in the

now abandoned mine and (8) at the time it abandoned

and sealed that mine, appellant could not have foreseen

that a post-mining discharge would occur.

Second, this appeal raises the question of whether the

state legislature did not violate both the Due Process and

the Equal Protection Clauses of the Fourteenth Amend-

ment when it imposed upon appellant sole responsibility

for the pumping and treatment of drainage from appel-

lant’s former mine despite a finding that five-sixths of that

drainage was generated in mines in which appellant had

no interest and over which it had no control. More ex-

plicitly, it asks whether the state may cause appellant to

pump and treat 7.2 million gallons of mine water daily

when six million gallons of that water flow into appellant’s

former mine from other abandoned mines and from an

active uphill mine whose owner and operator, faced with

the same environmental requirements which caused appel-

lant to abandon its mine, chose to decrease their own

pumping activity and to allow a three billion gallon pool

of mine water to accumulate against the barrier between

their mine and appellant’s and other abandoned mines,

with the knowledge that this accumulated water would

flow into appellant’s or other connecting mines.

The burden which has been imposed upon appellant

by the retroactive provisions of the 1970 amendments to

Jurisdictional Statement 21

Pennsylvania's Clean Streams Law as authoritatively in-

terpreted by the Supreme Court of Pennsylvania is un-

precedented both in nature and in scope. The basis for

this appeal is that if there exist any circumstances under

which purely economic state regulation enacted under the

police power will be found to exceed constitutional limits,

those circumstances are present in this case and demand

reversal of the order of the court below.

1. This Case Presents an Unwarranted and Unprecedented

Ruling That a State Does Not Take Property in Viola-

tion of the Due Process Clause of the Fourteenth

Amendment When That State Regulates a Citizen’s

Property in a Fashion That Gives It a Substantial

Negative Value Despite the Fact That That Citizen

Neither Is Presently Using That Property Nor Ever

Used It Unlawfully.

Only in 1970, after appellant had abandoned and

sealed Mine No. 15 in accordance with all applicable

regulations, did Pennsylvania enact the legislation here

challenged, which made post-mining discharge a public

nuisance and required mine operators to make provision

for the treatment of post-mining discharge. That legisla-

tion, however, was made applicable not merely to mines

which continued to operate after the date of the 1970

legislation, but also to any mine which had operated within

permit requirements after January 1, 1966.

Some months after the 1970 legislation, a natural

breakout of drainage from Mine No. 15 occurred. It is to

prevent a recurrence of this natural breakout—and not to

permit the operation of Mine No. 15—that the courts below

imposed upon appellant the duty to pump and treat 7.2

million gallons of water daily from Mine No. 15 at an an-

nual cost of $360,000 to $600,000. It is undisputed that

22 Jurisdictional Statement

there is no foreseeable end to the duty to pump and treat

tlis water and that appellant neither gains any benefit

from the pumping and treatment nor has any other way

to recoup its costs from Mine No. 15.

In order to justify the application of the 1970 legisla-

tion to appellant against the challenge that the state was

retroactively imposing a duty upon appellant, the court

below concluded that the state was seeking to regulate

not past conduct, but the present discharge from Mine

No. 15. Similarly, the court developed a novel theory of

nuisance law, based largely on the 1970 amendments,

which held that a former mine operator could be liable for

post-mining discharges despite both the fact that the min-

ing had been done under state-issued permits which re-

quired no water treatment during or after mining and at a

time when no law required such treatment and the fur-

ther fact the discharges were not related to any present

mining activity. Indeed, the court seems to argue that

the very need for and existence of the unconditional per-

mits were evidence that the mine drainage had been

recognized as a public nuisance.

Appellant readily concedes that the state has the right

to regulate discharges related to an active mining opera-

tion. If an operator wishes to continue mining he must

pay the environmental costs. If he cannot afford to pay

the costs, he may have to abandon his operations. More-

over the state may impose on a current operator the duty

to make provision for the treatment of post-mining dis-

charge. Once again, the operator can avoid the duty by

abandoning the operation on or before the effective date

of the statute imposing the new duty. The state may

impose on former operators the duty to treat post-mining

discharge when the former operator has operated his mine

negligently or in violation of law. The state even has the

right to go upon a former operator’s property to seal a

Jurisdictional Statement 23

breakout or to pump and treat a discharge from an

abandoned mine.

What the state may not do without running afoul of

the Due Process Clause, however, and what the court

below has permitted Pennsylvania to do in this case, is to

impose retroactively upon a former mine operator a duty

to treat mine drainage even, in the court’s own words, in

“the absence of facts supporting concepts of negligence,

foreseeability or unlawful conduct.” (Barnes & Tucker

(I), 455 Pa. at 414, 319 A. 2d at 883; (A91).

The reason is obvious. If the state gives advance

warning of the environmental rules of the game, the

would-be mine operator can decide in advance whether to

open a coal mine, and how. He can determine whether

the potential profits from a mine will repay the restoration

costs. He may leave more coal in place as barriers to pre-

vent future breakouts and may seal his mine better from

those of his neighbors. But, by the time the 1965 amend-

ments were adopted, it was already too late for appellant—

or its predecessors—to plan to develop Mine No. 15 in a

way that would prevent post-mining discharge. Indeed,

as the trial court found, it would not have prevented the

breakout if appellant had not mined one ton of coal after

the 1965 Act. And it was not even the 1965 amendments,

but the 1970 amendments, enacted after Mine No. 15 was

closed and sealed, which impose upon appellant the duty

to treat post-mining discharge.

The 1970 amendments were made retroactive more

than four and one-half years. Mine operators were finally

warned on July 31, 1970 that from January 1, 1966 they

had mined at their peril of treating post-mining discharges

whether or not the state had imposed that requirement in

the permits it had issued them. And if it is constitutional

for the legislature to impose this burden on mines which

closed between 1966 and 1970, why not equally on those

24 Jurisdictional Statement

which ceased operation between 1945 and 1965—or even

earlier? There is no bar but the grace of the legislature

if the Constitution does not protect against retroactive

regulation.

Moreover, if the burden of treating post-mining dis-

charges from Mine No. 15 is imposed on appellant rather

than the Commonwealth, appellant cannot go back to the

customers who bought coal from that mine and collect a

higher price for that coal to cover the previously unfore-

seen costs of operating the Duman Dam treatment fa-

cility in perpetuity. Unless the Commonwealth bears the

cost of the treatment facility that burden will fall perma-

nently and completely on appellant.

In determining that the imposition on appellant of

this perpetual duty to pump and treat water from Mine

No. 15 did not constitute an unconstitutional taking, the

Pennsylvania Supreme Court announced a theory of law

in direct opposition to numerous decisions of this Court:

“given our determination that the Commonwealth is

validly employing its police power in a reasonable man-

ner to abate the immediate public nuisance, there can be

no finding of an unconstitutional ‘taking’ . . . despite the

impact this exercise of the police power may have on ap-

pellant.” (Barnes & Tucker (II), 371 A. 2d at 467; A128).*

This Court has always held that a police power regu-

lation, no matter how useful or necessary, may become a

taking in extreme circumstances. The leading case is

Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922).

In that case, the Court recognized that the police power

normally operates as an implied limitation on the use of

8. In this context, the finding of the court below that the state

was using its police power “in a reasonable manner” plainly looks

to the court's determination that pumping and treatment at an

Dam were necessary to prevent the undesirable acid discharge, not

that the costs were not unduly burdensome on appellant. To read

this phrase otherwise would be to make it assume its conclusion.

Jurisdictional Statement 25

private property, but held, in striking down the regula-

tion there involved, that when the burden on private

property “reaches a certain magnitude, in most if not all

cases, there must be an exercise of eminent domain and

compensation to sustain the act.” Id. at 413. Justice

Holmes’ warning in 1922 was prophetic: “We are in danger

of forgetting that a strong public desire to improve the

public condition is not enough to warrant achieving the

desire by a shorter cut than the constitutional way of pay-

ing for the change.” Id. at 416.

The Court in Mahon did not attempt to quantify the

exact point where compensation becomes due, but held

only that the limits of the police power have been breached

where there is a total confiscation of property value.’ No

uniform rule has since been established; however, it is

still true, as noted in Queenside Hills Realty Co. v. Saxl,

328 U. S. 80, 83 (1946), that the “extreme cases,” the

cases which mark the furthest reach of the police power,

involve the prohibition only of certain uses of property,

albeit the most profitable, and do not involve the destruc-

tion of all property value. See, e.g., Hadacheck v. Sebas-

tian, 239 U. S. 394 (1915) (prohibiting brickmaking within

portion of city); Reinman v. Little Rock, 237 U. S. 171

(1915) (prohibiting operation of livery stable within city);

Pierce Oil Corp. v. City of Hope, 248 U. S. 498 (1919) (pro-

hibiting storage of gasoline in proximity to dwellings).

In its most recent decision in this area, in Goldblatt v.

Town of Hempstead, 369 U. S. 590 (1962), this Court again

found it unnecessary to determine exactly “where regula-

tion ends and taking begins,” id. at 594, because there was

no evidence to suggest that the regulation in that case

9. Noting that “the right to coal consists in the right to mine

it,” this Court he'd in Mahon that “[t]o make it commercially im-

practical to mine certain coal has very nearly the same effect for

constitutional purposes as appropriating or destroying it.” 260

U. S. at 414,

26 Jurisdictional Statement

which prohibited further excavation from a portion of a

gravel pit would even reduce the value of petitioner Gold-

blatt’s property. Nonetheless, the Court again recognized

that there was a point at which governmental action in the

form of otherwise valid regulation might be “so onerous as

to constitute a taking which constitutionally requires com-

pensation.” 369 U. S. at 594. Parenthetically, the Court

never reached the question of whether that part of the

ordinance which required Goldblatt to refill his worked-

out gravel pit—the por'ion mos? nearly resembling the

burden imposed on app: llant here—was unconstitutional,

since that provision was not before the Court. 369 U. S.

at 597-98.

In each of these cases, the Court was faced with the

question of whether the regulation was so burdensome that

it constituted an actual taking of property. Except in

Mahon, none of the property owners was able to show that

the value of his property had been totally destroyed. No

such difficulty exists, however, in this case.

Appellant is merely the former operator of an aban-

doned coal mine under mineral leases. There is no other

use for these leases but the mining of coal. In this case,

appellant had given up its mining operations because “it

could not economically afford to pump and treat the water

that it would have had to pump from the mine to continue

to operate the mine.” (9 Pa. Commw. Ct. at 7, 303 A. 2d

at 547; Al4). Thus, the property was plainly without any

value before the state undertook to impose upon it regula-

tions which would make it cost its former operator

$360,000 to $600,000 per year in perpetuity. In other

words, this case goes beyond any case ever presented to

this Court in that the state action here involved does not

merely totally destroy the value of appellant's property, it

makes that property a perpetual expense to appellant.

And it does not do so under a theory based on faul, be-

Jurisdictional Statement 27

cause there was none; rather, it does so under the guise of

a police power regulation.

This Court in Mahon held that an unconstitutional

taking may occur when state regulation destroys the eco-

nomic value of a property. How much more so when that

regulation imposes a negative worth upon a property so

that its holder cannot even abandon that property to the

state as if there had been a taking."®

It is in accord with the purpose of regulation to re-

quire that each economic enterprise bear its own costs and

that, if the cost associated with a particular use, properly

regulated, is too great, then that use should be abandoned.

However, this is the limit of justifiable economic regula-

tion. Thus, in Erie Railroad Co. v. Board of Public Utility

10. The court below did not address itself to any discussion of

the economic impact of the regulation in this case upon appellant,

simply rejecting out of hand appellant's argument that the state

cannot impose a positive burden on a property whose value had

already been destroyed by that regulation, 371 A. 2d at 464; A123,

and noting that appellant had not offered additional evidence that

the regulation “was unduly oppressive due to its economic impact,”

id. at 468; A129.

The trial court, by contrast to the court below, based its refusal

to find a “taking” on appellant's failure to introduce evidence “of

its capital structure, assets and liabilities or its profits or losses, if

any.” 23 Pa. Commw. Ct. at 512, 353 A. 2d at 480; A113. The

court refused to find a taking merely based on the cost of the

Duman Dam pumping and treating operation, arguing that

appellant well be thus age se isolating this cost from

the relative economic impact thereof upon its corporate assets

and profits.” Id.; All4. Yet this is precisely what is involved

in eminent domain cases where there is an actual a

A state must compensate the owner of condemned property regard-

less of his other assets. Certainly the same rule applies to a regu-

lation which destroys a citizen's property. It is an unconstitutional

taking whether or not the victim of the taking has other assets

from which he can recover his losses or, in this case, pay the charges

ainst the regulated property. Appellant need not wait until these

es have destroyed any other assets it may have before it can

seek redress from the regulation here involved. Cf. Union Oil Co.

v. Morton, 512 F. 2d 7 (9th Cir. pn (regulation prohibiting

construction of one of three drilling platfo

tuted taking).

rms on oil lease consti-

28 Jurisdictional Statement

Commissioners, 254 U. S. 394, 411 (1921), the Court, again

by Justice Holmes, upheld a law requiring the railroad to

eliminate grade crossings at its own expense upon the

rationale that “[i]f the burdens imposed are so great that

the road cannot be run at a profit it can stop, whatever the

misfortunes the stopping may produce.” Similarly, this

Court has countenanced police power restrictions on cer-

tain uses of property on the basis that “‘[s]uch legislation

does not disturb the owner in the control or use of his

property for lawful purposes, nor restrict his right to dis-

pose of it.. . ..” (Emphasis supplied). Goldblatt supra,

369 U. S. at 592-93, quoting from Mugler v. Kansas, 123

U. S. 623, 668-69 (1887).

Barnes & Tucker has plainly been deprived of the

right to dispose of its property because, as a result of

Pennsylvania's actions, that property is not only commer-

cially without value, it is encumbered in perpetuity with

some half a million dollars per year in costs. The lower

court, however, sidestepped appellant's argument that it

was being subjected to an unprecedented affirmative

burden simply by noting that it would “nullify” the Com-

monwealth’s environmental policy if Barnes & Tucker

could “avert responsibility for abating a nuisance which it

created under the proposition that it may abandon its

enterprise, rather than operate such enterprise within the

parameters of the environmental regulations. . . .” (Barnes

& Tucker (II), 371 A. 2d at 467; A127-A128).

While a state regulation need not permit businessmen

to charge forward the known costs of regulation and then

simply to walk away from the business when these ac-

counts fell due, plainly a different rule is required where

all the activity which gave rise to the present condition is

totally lawful “past conduct which obviously cannot now

be abated,” (Barnes & Tucker (I), 455 Pa. at 419, 319 A. 2d

at 885; A96), and where there is a total absence of “facts

Jurisdictional Statement 29

supporting concepts of negligence, foreseeability or unlaw-

ful conduct.” (Id. at 414, 319 A. 2d at 883; A91).

Finally, Usery v. Turner Elkhorn Mining Co., 428

U. S. 1 (1976), cited in passing by the court below, does

not serve to bridge the constitutional gap. The statute

compensating victims of “black lung” disease upheld in

Turner Elkhorn did involve a retrospective element insofar

as it imposed upon mine operators liability for harm suf-

fered by miners who had left employment in the industry

before the effective date of the Act. However, unlike the

instant case, liability was limited in Turner Elkhorn to pre-

sent mine operators, and merely was extended to include

certain specific claims of past employees. Significantly,

the measure was upheld on the theory that this was a

rational means of spreading the costs of past mine working

conditions to those who had profited the:eby—both the

coal consumers and the industry. 428 U. S. at 18.

While the scope of the statutory scheme upheld in

Turner Elkhorn is clearly distinguishable from that im-

posed upon appellant in that it was imposed only upon the

working industry where it could be passed on in the price

of present production, Turner Elkhorn is nonetheless in-

structive insofar as it sheds light on the magnitude of

affirmative regulation which will stand up under the more

stringent due process test applicable to retrospective

legislation.

Obviously, the burden imposed upon operators under

the Black Lung Benefits Act is insubstantial as compared

to that involved here. By providing that the federal

government rather than individual operators would be

liable upon claims filed during an initial three year period,

and by requiring that claims were to be filed within three

years of discovery, not only did the legislature relieve the

operators almost entirely of liability for claims maturing

before enactment of their responsibilities, see 428 U. S. at

30 Jurisdictional Statement

16, n. 14 and associated text, the Act also evidenced its

intent that the federal government would assume respon-

sibility for “those cases which form the backlog of claims—

both those which have been denied previously and those

which are newly covered under the amendments to the

law... .” §. Rep. No. 92-743, 92d Cong., 2d Sess., re-

printed in [1972] U. S. Code Cong. and Ad. News, 2305,

2324,"

Moreover, since the breakout of mine drainage in this

case occurred from a portion of Mine No. 15 which had

been mined before appellant had any interest in it, there is

no conceivable constitutional justification for imposing

pumping and treatment costs upon appellant. At the time

appellant began operation of Mine No. 15, there was no

way in which it could have anticipated that some twenty-

five years later the state would make it liable for post-

mining discharges and could, therefore, have avoided

operating the mine or have attempted to make financial

provision for future pumping and treatment costs.”

Equally clearly, there was no way that appellant could

have operated Mine No. 15 to prevent the breakout since

11. In any event, Turner Elkhorn involved only a “facial at-

tack” upon the validity of the statute as a whole and not its appli-

cation to a particular class of operators or factual circumstances.

(See the decision of the district court rted as Turner Elkhorn

Mining Co. v. Brennan, 385 F. Supp. 426 (E. D. Ky. a

Thus, the Court’s decision in Turner Elkhorn would not lu

future challenges under the Black Lung Benefits Act of the kind

involved here, i.e., that even a statute or regulation which is not

unconstitutional on every application may still be unconstitutional

in its application to a particular class of mine operators. See, 428

U. S. 45, n. 9 (Powell, .. concurring ).

12. Compare the Black Lung Benefits Act, 30 U. S. C. § 932

(c)(i), wherein the sole exception to the limitation of operators’

liability for benefits for injuries arising, at least in part, from em-

ployment in a mine during the — e operated it is with respect

to a new operator who, ajter the effective date of the act, assumes

liability for benefits for which a prior operator would have been

liable but for the transfer of the mine.

Jurisdictional Statement 31

the mining near the surface, where the breakout occurred,

had already been done. In other words, liability has been

imposed on appellant without notice and with respect to a

condition it could not prevent.

Thus, the Supreme Court of Pennsylvania in this case

has proclaimed a doctrine which is unique to American

constitutional jurisprudence in upholding a statute which

makes appellant—and those similarly situated—liable for

perpetual pumping and treatment of water from its aban-

doned mine even though it had no notice that it might

have this liability at the time it conducted its mining op-

erations, it conducted these operations and sealed the mine

in accordance with the law without negligence or other

fault, and it could not have foreseen that any deleterious

post-mining discharge was likely to have occurred.

2. Even Assuming That the Court Below Correctly Held

That Appellant Might Be Liable Without Fault or

Fo ability for Post-Mining Treatment of Water

nerated, in Its Own Former Mine, Certainly the

Process and Equal Protection Clauses Prohibited

Court From Upholding Legislation Which ™™-

posed Similar Liability With Respect to the Five-

sixths of the Drainage Involved in This Case Which

Flows Into Appellant’s Former Mine From Neighbor-

ing Abandoned and Active Mines.

In its original appellate decision, the court below re-

manded the case to the trial court for a determination of

whether the imposition upon appellant of a perpetual duty

to pump and treat drainage from Mine No. 15 would con-

stitute an unconstitutional taking. In so doing, the court

stated:

“The possibility of sealing and isolating Mine No.

15 so as to prevent future discharges may exist, but

the feasibility of such relief was not directly ad-

32 Jurisdictional Statement

dressed below. Much of the testimony below was

concerning the mines adjacent to Mine No. 15, the

barriers and cut throughs between them, the quantity

and quality of water generated in each of the mines,

the amount of fugitive water migrating into Mine No.

15, and whether, but for the fugitive waters, any dis-

charge would occur at Mine No. 15. We believe a

finding in regard to the sources of water being dis-

charged from Mine No. 15 would be relevant in a

determination of the appropriate relief. In this re-

gard we note a key distinction from the situations

present in Commonwealth v. Harmar Coal Co. and

Commonwealth v. Pittsburgh Coal Co., 452 Pa. 77,

306 A. 2d 308 (1973). Those cases involved the

pumping of water from abandoned mines in con-

nection with the operation of working mines. In the

present case we are essentially dealing with a natural

discharge (but for the pumping at Duman Dam)

from an abandoned mine which may include acid

mine drainage which originated in adjacent aban-

doned mines.” 455 Pa. at 419-20 n. 16, 319 A. 2d at

886 n. 16; A97 n. 16.

The trial court, in response to this direction, found not only

that there was no feasible way to seal Mine No. 15, but

that fully five-sixths of the water which must be pumped

from that mine to prevent a future breakout and be treated

was not generated in Mine No. 15 but flowed into that

mine from other active and abandoned mines. 23 Pa.

Commw. Ct. at 508, 353 A. 2d at 478; A109. The court be-

low held that the record supported this finding. 371 A 2d

at 465; Al24-A125. Nevertheless, citing Commonwea'th v.

Harmar Coal Co., 452 Pa. 77, 306 A. 2d 871 (1973),

appeal dismissed, 415 U. S. 903 (1974), which held an

active mine operator responsible for polluted drainage it

pumped from an abandoned mine for the protection of its

Jurisdictional Statement 33

operating mine, the court below affirmed the imposition

of liability for treating the entire discharge on appellant

on the ground that “it is not the source of the polluted

water itself but the source of the discharge of the acid mine

water into the waters of the Commenwealth with which

we are presently concerned.” 371 A. 2d at 466; A126-

A127.

The extreme inequity of the result in this case is

emphasized by the fact that, at the very time that Barnes

& Tucker was forced to abandon Mine No. 15 because it

could not be economically operated in accordance with the

dramatic new requirements of the 1965 Amendments, the

owners of the adjacent active Colver Mine decided to de-

crease their pumping and to permit the unpumped and

untreated water to accumulate in the lower portion of the

mine abutting Mine No. 15, where the combination of the

natural geology and the existence of cut throughs, pillaring

and breached barriers between the mines in the complex

made it inevitable that a substantial portion of this drain-

age would ultimately migrate to Mine No. 15 (23 Pa.

Commw. Ct. at 504-08, 353 A. 2d at 476-77; A108-A109).

Accordingly, the result of the statutes upheld in this case is

to impose upon petitioner, not merely the unanticipated

costs of treating the discharge from Mine No. 15, but, in

addition, costs properly attributable to a still active mining

operation which continues thereby to avoid its share of

those very same environmental costs which had previously

forced appellant to abandon its operations.”*

13. The final wrong of the imposition upon » gree of the

cost of treating the drainage from the whole series of higher mines

in the Barnesboro basin is that but for the decision of the court

below refusing to allocate nsibility to the mines that generate

the subsurface water, Pennsylvania would be responsible for treat-

ing the water generated in the Moss Creek and Sterling mine com-

plexes since those mines were closed before January 1, 1966 and,

accordingly, come within the state-funded cleen-up provisions of

the Act of December 15, 1965, P. L. 1075, 35 P. S. § 760.1 et seq.

34 Jurisdictional Statement

Neither the Equal Protection Clause nor the Due

Process Clause permits Pennsylvania to single out appel-

lant from among the past and present mine operators in

the Barnesboro basin and to impose upon it, merely be-

cause of a fortuity in geology, the burden of pumping and

treating the mine drainage generated in all of the mines in

that basin. If liability for treatment may be imposed

without fault, it should certainly be apportioned among

all of the former operators of abandoned mines. More

important, the drainage from an active mine should cer-

tainly not have to be treated by the former operator of an

abandoned mine to the benefit of the operator of the active

mine.

This is not to suggest that mine drainage is not an

important problem subject to solution under the police

power. To the degree that appellant or any other mine

operator pumps mine drainage in connection with its op-

erations, it may be compelled to treat that drainage. To

the degree that any operator operates a mine after notice

that continued operation will entail a duty to treat post-

mining drainage, that duty may be imposed upon that

operator. But the desirability of finding an easy solution

to the treatment of acid mine drainage does not justify the

imposition upon a former mine operator of the duty to

treat mine drainage which results primarily from the min-

ing activity of others. When neither fault nor operation

after notice that a burden of that operation is the treat-

ment of post-mining drainage supports the imposition of

those treatment costs on a mine operator, it is the state and

not the operator who must pay the treatment costs.

_ The fact is that neither the public nor mine operators

have, until recently, became aware of the possibility that

the environment may be protected against various pol-

lutants or the necessity of doing so. The desire to achieve

Jurisdictional Statement 35

that protection has become a matter of great public con-

cern with the common consequence that governments have

felt compelled to do “whatever is necessary” to remedy

what they view as an acceptable situation.

However, even the existence of a very pressing public

need will not justify constitutional “shortcuts” which by-

pass individual rights. Nor does the fact that we can now

identify the harm, which had previously been merely a

hidden cost of other presumably great public needs, justify

imposing upon a faultless person the burden of our col-

lective ecological ignorance and lack of foresight. Cf.,

Berger, “A Policy Analysis of the Taking Problem”, 49

N. Y. U. L. Rev. 165 (1974).

Unless this Court is now prepared to hold, as in effect

the Pennsylvania Supreme Court did, that there is no

longer any degree of private burden which cannot be

justified in the name of the public welfare, it must find that

the Commonwealth of Pennsylvania has departed the con-

stitutional path in this case.

36 Jurisdictional Statement

CONCLUSION.

For the reasons set forth above, it is respectfully sub-

mitted that the Court should note probable jurisdiction to

review and reverse the judgment from which this appeal

is taken.

Respectfully submitted,

BERNARD G. SEGAL,

James D. CrawForp,

Attorneys for Appellant.

SCHNADER, HARRISON, SEGAL & LEWIS,

1719 Packard Building,

Philadelphia, Pennsylvania. 19102

(215) 491-0662

Cioyp R. MELLOTT,

EcKERT, SEAMANS, CHERIN & MELLOTT,

42nd Floor, 600 Grant Street,

Pittsburgh, Pennsylvania. 15219

FRANK A. SINON,

Ruoaps, SrInon & READER,

410 North Third Street,

Harrisburg, Pennsylvania. 17108

Of Counsel.

Dated: July 5, 1977.

at es antec te te 0 tts dee.