Amicus Brief — Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.
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Nos. 80-231,
79-1538 and 79-1596
IN THE
Supreme Court of the United States
OcTOBER TERM, 1980
CECIL D. ANDRUS, SECRETARY
OF THE INTERIOR, er ai.,
Appellants,
vs.
STATE OF INDIANA, et al,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,
Appellant {No. 79-1538),
Appellee (No. 79-1596),
vs.
VIRGINIA SURFACE MINING AND RECLAMATION
ASSOCIATION, INC., et ai.,
Appellees (No. 79-1538),
Appellants (No. 79-1596).
ON APPEALS FROM THE UNITED STATES DISTRICT COURT.
FOR THE WESTERN DISTRICT OF VIRGINIA
BRIEF OF THE STATE OF ILLINOIS
AS AMICUS CURIAE IN SUPPORT OF
INDIANA AND VIRGINIA
TYRONE C. FaHNER
Attorney General, State of Illinois
Room 900
160 North LaSalle Street
Chicago, Mlinois 60601
(312) 793-2501
Harvey M. SHELDON
Special Counsel to the State of Illinois
One North LaSalle Street
MICHAEL J. Durr Suite 2300 ‘
NISEN, ELLIOT & MEIER Chicago, Illinois 60602
Chicago, Illinois (312) 346-7800
Of counsel. Attorneys for Amicus Curiae, The State of Illinois
Printed by the Authority of the State of Illinois—1-81-200
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TABLE OF CONTENTS
STATEMENT OF INTEREST .........ccsc.ccdssccccscessessevosenes
PRT IR TINS sciccsdentchsacnyiinasasicnnecnqacibansesavesquanpebshpsubvesuseces
I. The Constitution provides for a Federal govern-
ment of limited powers, with important re-
served rights to the states and people, which
Constitutional balance must be maintained by
Ce CR ease salbincaiistiatmiaarsacnatapecesobuteouabodans
II. Title V of the Act authorizes the Federal gov-
ernment directly or indirectly to exercise po-
lice power control over local affairs of private
persons and the State, in excess of Congress’
Constitutional authority under the Commerce
Clause, and contrary to the Tenth Amend-
Ill. The provisions of the Act found to invade
States’ rights in the Indiana case will seriously
interfere with the rights of the State of Illinois.
1]
18
30
ii
TABLE OF AUTHORITIES
Page
CASES:
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)... 8
In Re: Permanent Surface Mining Regulation Liti-
gation, No. 79-1144 (D.D.C. May 16, 1980),
appeals docketed, No. 80-1810 and consolidated
case nos. 80-1811, 80-1812, 80-1813 and 80-
1823 (D.C. Cir., August 20, 1980) 0.0... eee 9,21
In Re: Permanent Surface Mining Regulation Liti-
gation (Peabody Coal Company, Appellant )
No. 80-1308 (D.C. Cir. July 10, 1980), rehear-
ing en banc ordered and pending. ................0s000++ 9
In Re: Permanent Surface Mining Regulation Liti-
gation, No. 79-1144, ___. F. Supp. —— ., 14
E.R.C. 1083 (D.D.C. February 26, 1980)
EF 8 BE FREEMEND Siete ce MATE NEVER err Ie Taney: STON 21
In Re: Permanent Surface Mining Regulation Liti-
gation, No. 79-1144, Se eek
(D.D.C. May 16, 1980). (Round II)...............0... 21
Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).... 10
Massachusetts v. Mellon, 262 U.S. 447 (1923)....... 28
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
EI Fis shctoesogaleendten Fecakin.scholichaeSheebestithapoulateseone yale 4,5, 10
Metcalf v. Mitchell, 269 U.S. 514 (1926).............04 10
Mugler v. Kansas, 123 U.S. 623 (1887) ..........:000008 15
National League of Cities v. Usery, 426 U.S. 833
CI Bas encikapisostdivscinsnsascdadicedlinianahsansectaeberoowsenhisunnien 8
New York v. Miln, 36 U.S, 102 (1837)...........ccceeeee 6
New ¥ork v. United States, 326 U.S. 572 (1946)... 17
Penn Central Transp. Co. v. New York City, 438
Bes ee Pe Re cidcacetsetbbladatecpinericdoeeiasenercle 26
Warth v. Seldin, 422 U.S. 490 (1975) woo... eeeeeeees 23
Youngstown Steel and Tube Co. v.. Sawyer, 343
WE, i Fie BR Bi ccs avshcrnsoneisnsinrainmbisisenee 10
CONSTITUTION, STATUTES AND REGULATIONS:
Constitution of the United States
Article Section 8 (Commerce Clause ).............. 4,5, 19
FR Ra eae 17, 18, 19,
28
iii
Statutes
Page
Clean Air Act; 42 U.S. C. § 7401 et seg.
§ 101(a) (3); 42 U.S.C. § 7401(a)(3).......... 16
Clean Water Act; 33 U.S. C. §1251 et seg.
Oe a BO Se 2 bo) | GS ene 16
Ee)? Fe Se he AAI UES) occdichicccecccenvnges 16
The Surface Mining Control and Reclamation Act,
30 U.S.C. § 120! ef seq.
Title I, § 101(f); 30 U.S. C. § 1201(f) ............ 9
I balloon. aupcetebesccelicspigttaalipbikglhisek ie Veen voonepnia 22
Title V
SB ge adh 2 > — . SRR RERnronoc tonne 7
Eb La Oe § | 2. SUR ewen 19
§ 508(a); 30 U.S. C. § 1258(a) .......... 24
§ 510(a); 30 U.S.C. § 1260(a) ............... 11, 12,24
§ 510(b)(6); 30 U.S. C. § 1260(b)(6)... 11
§ 510(d)(1); 30 U.S.C. § 1260(d)(1)... 24,27
§ 512(a); 30 U.S.C. § 1262(a) ............... 12
§ 513(a); 30 U.S. C. § 1263(a) ............... 11,24
§ 515(b)(2); 30 U.S. C. § 1265(b)(2).... 12,24
§ 515(b)(3); 30 U.S.C. § 1265(b)(3)... 12
§ 515(b)(7); 30 U.S.C. § 1265(b)(7)... 12, 26
§ 515(b)( 15); 30 U.S.C. § 1265(b)¢15). 12, 24
§ 515(b)( 16); 30 V.S.C. § 1265(b)(16). 12
§ 515(b)(17); 30 U.S.C. § 1265(b)(17). 12
§ 515(b)(19); 30 U.S.C. § 1265(b)(19). 12
§ 515(b)(20); 30 U.S.C. § 1265(b)(20). 12
§ 515(b)(21); 30 U.S.C. § 1265(b)(21). 12
§ 515(b)(23); 30 U.S.C. § 1265(b)(23). 12, 13
1V
Page
§ 515(b)(24); 30 U.S.C. § 1265(b)(24). 12, 13
§ 515(c)(3); 30 U.S.C. § 1255(c)(3)..... 13
OC Shes oe i SS. S 1G ic. eee. 13
§ 519(c)(2); 30 U.S.C. § 1269(c)(2)..... 27
S S220); FOU. BC. F UZ ACB) os ccscesccseses 13,24
$2206 }4 SPD: SIC, SZ FAC) onccnerinveseses. 13
Illinois Revised Statutes (1979)
Rois Se RE WI 6 vedicseicidsh aa bead ivecinapseevaahnaviciaees 13
Ch. 9644, par. 251 ef seg. .......... edu paontisicakioabinns 18
Ck, DI NRE MINE cisopntbasenensthsiaurinassnetspaicserticks 18
ec I, SO i ii ccctstdennsdpidentocngadevemenesan 18
a Fe, EE CE BOG: bn ceciccscccctbcionsensscsasesiss 13, 18
re I I Foi iaiies seepenensy tiv cbencinecenneiies 23
Cs Pe NE, Fre OE IO oh civisahincdoivarnssspnsiaitinte 18
P.A. 77-1568, approved and effective Sept. 17,
5g Fae TREAT RP ROE A MER SY Ee 18
Regulations
Code of Federal Regulations
Pe Fe ttespsptadap itesnvvesnipsernnyichickessypfacsinns 9
ee Fe BED vicsndnsenbenepiinsenssnkabslagatsinnonpes 9
pode 2 eV go) hh een enon 21,24
Fe re UN IO soos hdc axcsiiirsansenanniennsbeonvereconconives 21
PE IEG Fick cnn eens Seinnsdisopieqepintteierimaseseeesens 21
ee aE Be sik seitcssitnsosyeinsdcnssushthagdiuetrssenennis 21
Pe WE es 0 BLS) iisinn i cocnsticignisisercsccscconrsonsscel 20
Fe Re EE PUM Py concendatecivepsiidessoradoivesvenginnat 20, 23
Fe FO PES BPD cose nabsaspenisnenensetslinboiisensnns 20
DOL Fa IR IE Vivsvcnrseriacccsccgscecdbinartnseness 23
Illinois Surface-Mined Land Conservation and
Reclamation Act Rules and Regulations
NN a i ee cesdapauonabecpinarents
MISCELLANEOUS:
Brief of Appellant State of Illinois, dated Novem-
ber 3, 1980, In Re: Permanent Surface Mining
Regulation Litigation, No. 80-1810 and consoli-
dated casenos. 80-1811, 80-1812, 80-1813 and
BO-1EZ3S CD. By CAR) i ncsccccssecccccssncccesnssocnsvncpishinonnnes
Brief for the Secretary of the Interior as Appellee
and Cross-Appellant, dated December 23, 1980,
In Re: Permanent Surface Mining Regulation
Litigation, No. 80-1810 and consolidated case
nos. 80-1811, 80-1812, 80-1813 and 80-1823
Oe Fics cacstcensisnstessserclansnsoseqnegntsdsunseoqtncees
Coal Extraction and Utilization Research Center.
Southern Illinois Univ.-Carbondale, Final Re-
port: The Economic Impact of Western Coal in
Illinois ( June 22, 1979 )...........sscsecseceerecserseeseseeees
126 Cong. Rec. S 11279 (daily ed. August 20,
P. Bator, P. Mishkin, D. Shapiro and H. Wechsler,
Hart & Wechsler’s The Federal Courts and the
Federal System (2d ed. 1973) .......:ccessceeeseeseeeeeeees
The Federalist No. 42 (J. Madison), Modern
DL APALY O60 os. .cssccsgseceiscscctscsanygesvaesepqessacsooesenssenessnscees
The Federalist No. 44 (J. Madison) Modern Li-
DALY C0. .....ccccnecscescrsccccsccccoesvessccansenerenscanssccsscaseoss
The Federalist No. 45 (J. Madison), Modern
RADIOL OO on .ccccsscccscnsnsinicncsecstusessaquégavasdepevonsegsssonece
The Federalist No. 46 (J. Madison), Modern
EFI GUE cossncsscsssnssicrarcesctcdsccepredansncsesisnnvencssonssent
Page
18, 27, 28
21
20
24, 25
5,6
#%
vi
44 Fed. Reg. 15311-15463 (March 13, 1979) .........
Bae; Secs Corben ING, A CAG ois co vives isovincavcos peace
Letter containing non-binding statement of issues
to be raised on appeal, from the Justice Depart-
ment to Christine N. Kohl, Chief Staff Counsel,
U.S. Court of Appeals for the District of Colum-
bia Circuit (September 29, 1980) 0.0...
Nos. 80-231,
79-1538 and 79-1596
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1980
CECIL D. ANDRUS, SECRETARY
OF THE INTERIOR, et al.,
Appellants,
vs.
STATE OF INDIANA, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,
Appellant (No. 79-1538),
Appellee (No. 79-1596),
VS
VIRGINIA SURFACE MINING AND RECLAMATION
ASSOCIATION, INC., ef ai.,
Appellees (No. 79-1538),
Appellants (No. 79-1596).
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BRIEF OF THE STATE OF ILLINOIS
AS AMICUS CURIAE IN SUPPORT OF
INDIANA AND VIRGINIA
STATEMENT OF INTEREST
At stake in this case is Congress’ undertaking of a
fundamental governmental role, not ever exercised before in
like manner by the United States, which properly belongs to
states and localities: the governmental role of land use designa-
tion for privately owned lands. If this Court allows Congress to
determine whether land may be mined and to designate land
use for land which has been mined, premised on what the
2
Indiana Court below properly found to be a trivial percentage
of the acreage of concern, the precedent will be established for
Congress to designate land use for any land, anywhere in the
nation. If Congress may designate land use and handling for
reclaimed land from which coal is mined, Congress may
presumably seek to make land use decisions for land from
which corn, soybeans, cattle, timber, cotton, and any other
product of the land are taken and sent into the stream of
commerce. If coal, which is taken from 5,000 to 6,000 acres of
Illinois’ land annually, affects interstate commerce substantially
to warrant Congressional decree of land uses and handling,
then all the more substantial an effect will be made by grain,
which cemes from hundreds of thousands of acres of Illinois. It
is also then not a great step to conclude that the use of land for
any other purpose, be it housing, recreation or cemeteries,
affects interstate commerce, and is thus governable by Con-
gress. If the decisions below finding provisions of this Act to be
violative of the Tenth Amendment are reversed, there is no
clear or perceivable limit to the authority of Congress to
designate and regulate the use of lands owned by private
individuals.
Illinois produces vast amounts of grain and livestock, as
well as a large amount of coal. Its citizens live in a diversity of
environments, both rural and urban, and are free to choose to
live in counties where zoning is not employed and cities where it
is a strict and innovative device in the public interest. Illinois’
government, and its local governments, have traditionally
functioned as designators of land use. The Surface Mining Act,
while displacing them from this role, thereby absorbs on behalf
of the Federal government one of the powers which has
traditionally made state and local governments viable, and
useful, members of a federal system. The provisions of the
Surface Coal Mining and Regulation Act stricken by the Courts
below make government less responsible to the people it
affects, and seriously impair the ability of state governments to
protect and provide for the welfare and prosperity of their
citizens. Illinois therefore files this amicus curiae brief in
support of its sister states, Indiana and Virginia.
ARGUMENT
l. The Constitution Provides for a Federal Government of
Limited Powers, With Important Reserved Rights to the
States and People, Which Constitutional Balance Must
Be Maintained by this Court
This case obviously presents fundamental questions con-
cerning the scope, distribution and balance of governmental
power under the Constitution. The State of Illinois files this
amicus curiae brief, not as a rival or enemy of the Federal
government, but as a partner in a public trust, held by
government for the people. This trust and its exercise are
verbally embodied in the Constitution. James Madison ex-
plained the meaning of this trust:
The federal and State governments are in fact but
different agents and trustees of the people, constituted with
different powers, and designed for different purposes. The
adversaries of the Constitution seem to have lost sight of
the people altogether in their reasonings on this subject;
and to have viewed these different establishments, not only
as mutual rivals and enemies, but as uncontrolled by any
common superior in their efforts to usurp the authorities of
each other. These gentlemen must be here reminded of
their error. They must be told that the ultimate authority
wherever the derivative may be found, resides in the people
alone, and that it will not depend merely on the com-
parative ambition or address of the different governments,
whether either, or which of them, will be able to enlarge its
sphere of jurisdiction at the expense of others. Truth, no
less than decency, requires that the event in every case
should be supposed to depend on the sentiments and
sanction of their common constitutents. The Federalist No.
46 (J. Madison) Modern Library ed., p. 305. (emphasis
added ).
Given this premise, it is incumbent on the Supreme Court
to confine the federal exercise of its trusteeship to that dele-
gated by the people in the Constitution and to assure the
reserved rights of the states and people to be free of federal
regulation of their property and local affairs and to have the
4
benefit of state government in meaningful form. Rather than
being simplistic, a resort to first principles is helpful in analyz-
ing this case to a balanced and beneficial conclusion."
This Court has historically recognized the need to provide
judicial determination of the balance and distribution of power
in our federal system. In this case, as in the past:
The constitution of our country, in its most interesting
and vital parts, is to be considered; the conflicting powers
of the government of the Union and of its members, as
marked in that constitution, are to be discussed; and an
opinion given, which may esséntially influence the great
operations of the government. No tribunal can approach
such a question without a deep sense of its importance, and
of the awful responsibility involved in its decision. But it
must be decided peacefully, or remain a source of hostile
legislation, perhaps of hostility of a still more serious
nature; and if it is to be so decided, by this tribunal alone
can the decision be made. On the Supreme Court of the
United States has the constitution of our country devolved
this important duty. McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 400 (1819).
One serious issue posed by this case is whether, logically, as
a matter of constitutional law, the “part” (in this case “com-
merce among the states”) under Art. I, Section 8, can swallow
the “whole” of commerce, including local affairs. In other
words, if use of private lands can be dictated by Congressional
law, what then is left as a clear example of “local activity” that
is not a part of “commerce among the states” and subject to
Congressional regulation? The issue clearly is not whether the
Commerce Clause can rationally be related to the subject
matter of the Surface Mining Act. It would appear “rational”
to define interstate commerce in such a way as to relate virtually
1 For an expanded discussion of historic principles of the intent
and need for a strong federal judiciary empowered to arbitrate state
and federal disputes, see P. Bator, P. Mishkin, D. Shapiro and H.
Wechsler, Hart & Wechsler’s The Federal Courts and the Federal
System, pp. 9-32 (2d ed. 1973).
any event in the United States, directly or indirectly, to
interstate commerce; but such rationality is inconsistent with
good sense and the intent of the Constitution.
It should be quite clear that the drafters of the Constitution
had no idea the Commerce power could be as extensive as it
has been held to be, so as to eliminate as a practical matter, the
concept of activities that are beyond the scope of the Commerce
Clause. Without denying that the complexity of modern society
makes an expansive view of Commerce Clause authority an
accepted necessity, that same complexity cannot substitute for
reliance by the States and people on their Constitution to
provide government limited to its enumerated powers and
reasonably controlled and controllable by judicial review under
the Constitution. Cf. McCulloch v. Maryland, 17 US. (4
Wheat.) 316, 405 (1819).
The power granted by Art. I, Section 8 of the Constitution
“to regulate commerce ... among the several states, and with
the Indian tribes”, was intended as one providing “for the
harmony and’ proper intercourse among the States” in the
context of assuring against indirect assessment of duties and
assuring that the “reciprocal trade of confederated States” did
not devolve into animosities among states. It was also seen as a
necessary supplement to regulation of foreign commerce. The
Federalist No. 42 (J. Madison) Modern Library ed., pp. 273-
275. In contrast, the writers of the Federalist papers stated a
belief that state governments would have extensive inherent
powers:
The powers delegated by the proposed Constitution to
the federal government are few and defined. Those which
are to remain in the State governments are numerous and
indefinite. The former will be exercised principally on
external objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation will, for
the most part, be connected. The powers reserved to the
several States will extend to all the objects which, in the
ordinary course of affairs; concern the lives, liberties, and
7%
7%
- 6
properties of the people, and the internal order, improve-
ment, and prosperity of the State. The Federalist No. 45 (J.
Madison) Modern Library ed., p. 303. (Emphasis
added. )
The commerce power, while “new” to the federal government,
seemed to Mr. Madison'“‘an addition which few oppose and
from which no apprehensions are entertained.” Jbid., p. 303.
And even more importantly, state governments possessed and
had reserved broad authority to provide internal order, im-
provement and prosperity to their citizens. Cf. New York v.
Miln, 36 U.S. 102 (1837).
Thus, the se¢ond issue of importance posed here involves
the extent and meaning of the reserved rights of states to
provide, in Madison’s words, for their “internal order, improve-
ment and prosperity”. Virginia and Indiana have compellingly
shown in the district courts how disruptive and damaging
certain provisions of the Federal Act are to their economy and
their ability to provide land use plans and other services for the
betterment of their citizens. Local expectations and needs for
housing are interfered with, jobs and the use of private land
resources are threatened in ways which the local community
cannot reasonably alter or affect. As will be more fully
developed in Part III of this amicus curiae brief, Illinois’
government and citizenry are similarly threatened by portions
of the Act which effectively outlaw or make uneconomic the
development of coal resources. Coal development provides the
lifeblood of many Illinois communities, yet affects relatively
small acreage in the State. Also, the ability of the Congress to
“federalize” prime farmland threatens Illinois agriculture and
farmers with a loss of control of the use of their property.
This Court should be aware, if it is not already, that
numerous states have at one time or another strongly criticized
the administration of the Federal Surface Mining Act. In a
7
resolution? unanimously adopted May 22, 1980, sixteen coal
mining states of the Interstate Mining Compact resolved:
RESOLUTION
INTERSTATE MINING COMPACT COMMISSION
BE IT RESOLVED BY THE INTERSTATE MINING
COMPACT COMMISSION (IMCC): that the federal
domination and control over state and local land use and
coal resource development, as contained in the “Surface
Mining Control and Reclamation Act of 1977” (P.L. 95-
87), and regulations thereunder, must be corrected by the
Congress, and this authority must be restored to the states
and local governments;
2 This resolution was adopted by authorized representatives of
the Governors of the following states: Texas, Alabama, Illinois,
Tennessee, Maryland, Ohio, Oklahoma, Pennsylvania, South Caro-
lina, Virginia, West Virginia, Kentucky, North Carolina, Indiana,
Arkansas and Louisiana.
As of year end only 11 states had approved permanent programs.
Of these, 6 were Western states, and 2 had few or no coal mines.
Thirteen additional important coal states had submitted proposals for
a permanent program which have been partially or wholly dis-
approved. Illinois is in this category. These states were required by
the Act to resubmit revised programs in 60 days or lose program
eligibility until after federal programs are imposed. Permanent
programs for only 5 of these 13 states were resubmitted to the
Secretary within the 60 days; resubmittal by the other 8, on informa-
tion and belief, has been enjoined by state courts. See Section
503(d), 30 U.S.C. § 1253(d). Six additional states (none with a
significant coal mine industry) either have not submitted a state
program or have requested a federal program. Federal programs are
being implemented for those 6 states. Nineteen siates neither have
coal mines or plans to produce coal in the future. It is misleading to
look at the number of states which have submitted programs as
evidence of the reasonableness of the provisions of the Act since many
states have done so under the threat of federal imposition of a
program. In this regard, most of the states which have submitted a
program have expressed the view at one time or another that the Act
is a threat to their sovereignty.
8
AND BE IT FURTHER RESOLVED THAT:
the intrusion of federal power into this area of state
responsibility is a threat to representative government and
state sovereignty.
Issued this 22nd day of May, 1980.
The issues posed in this case do not call for judicial
interference or second-guessing of the Congress on what its
laws ought to be. The statute in question is generally quite
clear and specific, and it provides at specific points for federal
authority over private lands of unprecedented scope and detail.
3Some opinions of this Court contain expressions that in a
representative government such as ours, the sole restraints on the
Commerce power lié within Congress. For example, it has been said
“the wisdom and the discretion of Congress, their identity with the
people, and the influence which their constituents possess at elections,
are ... the sole restraints on which they have relied, to secure them
from its abuse.” National League of Cities v. Usery, 426 U.S. 833
(1976), (dissent quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197
(1824)). Illinois respectfully submits that where Tenth Amendment
issues are involved, unless the Court is prepared to protect Tenth
Amendment rights, their reservation in the Constitution is rendered a
practical nullity by this line of reasoning, and the reserved powers of
States might as well not be mentioned in the Constitution, since all
legislative power, including traditional state police powers, would be
effectively vested in the Congress, subject to exercise at its whim
alone. Reference is made to the synopsis of the Court’s rightful role in
deciding these issues by Professor Mooney, page 8, note 2, Brief
Amicus Curiae of Pike County, Kentucky, in the Virginia case (79-
1538). The involvement of land use, a traditionally recognized area
of state concern, in a Congressional statute should be an immediately
suspect exercise of power, and should authorize federal courts to
recognize the interest of a state in providing for its local welfare and
prosperity. Whether as an absolutely reserved area immune from
Congressional control, or an area of interest to be weighed in a
balance with Congressional interest, the Courts have a necessary role
in providing protection to the States and their citizenry from Congres-
sional interference in land use, a key element of property nghts and
basis of state government tax and other internal policies.
9
The issues posed are fundamental issues of judicial review, as
basic as the Constitution itself, calling into question whether
Congress has, in Madison’s words “‘misconstrue[d] [a] part of
the Constitution and exercise[d] powers not warranted by its
true meaning”.
In the first instance, the success of the usurpation will
depend on the executive and judiciary departments, which
are to expound and give effect to the legislative acts;
The Federalist No. 44, Modern Library ed., p. 295.4
4 Illinois believes that sensitive Executive implementation of the
Act would greatly have relieved the practical difficulties most states
face with the Act. The Act includes a finding that:
because of the diversity of terrain, climate, biologic, chemical,
and other physical conditions in areas subject to mining oper-
ations, the primary governmental responsibility for developing,
authorizing, issuing and enforcing regulations for surface mining
and reclamation operations subject to the Act should rest with
the States. § 101(f); 30 U.S. C. § 1201(f).
Despite this finding, the Secretary of Interior chose to issue a
comprehensive set of detailed regulations, 44 Fed. Reg. 15311-15463
(March 13, 1979), amplifying and making more detailed every
requirement of the Act and requiring states to have regulations “no
less stringent” than his regulations (30 CFR 730.5). If a state could
demonstrate that it had a better alternative for any provision, based
on local differences, it could submit them under the so-called “state
window” provision (30 CFR 731.13(c)). The United States Court of
Appeals for the District of Columbia has described the “state
window” as a “one-way mirror.” Jn Re: Permanent Surface Mining
Litigation (Peabody Coal Co., Appellant), No. 80-1308, (D.C. Cir.,
July 10, 1980), Rehearing En Banc Ordered and Pending. The
adopted regulations of the states which have already obtained federal
program approval, and the lists of problem areas of state submittals
for states which have not yet obtained approval, support this descrip-
tion. The State of Illinois is appealing the Order of the District Court
upholding the idea that Congress intended a federally dictated set of
regulations to govern state programs. Jn Re: Permanent Surface
Mining Regulation Litigation, No. 79-1144 (D.D.C. May 16, 1980),
appeal docketed, No. 80-1810 and consolidated case nos. 80-1811,
80-1812, 80-1813 and 80-1823 (D.C. Cir., August 20, 1980).
Although reversal of the District Court on the issue of primary
responsibility for the regulation under the Act would alleviate matters,
a limited number of direct land use requirements of the Act con-
cerning restoration of approximate original contour, prohibitions and
conditions on the use of particular land, including prime farmlands,
for mining, and approval of post-mining land use remain and pose
serious unconstitutional threats to Illinois, as well as to Indiana and
other Midwestern coal states.
10
Where a clash between the federal Congress and the rights
of the people and states to provide for their local affairs and
prosperity are involved, the issue can be no less susceptible to
judicial review than in cases where rights of private parties are
injured by executive or legislative power, or states interfere with
Federal law, e.g. Marbury v. Madison, 5 U.S. (1 Cr.) 137
(1803), Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579
(1952), McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819), Metcalf v. Mitchell, 269 U.S. 514 (1926).
The District Courts below were both sensitive to the
interests of state and federal government, and, after trial on the
merits, concluded that in important respects, Title V of the Act
oversteps the Commerce power and invades the reserved
powers of the states. This Court should have no hesitancy in
affirming the District Courts, which acted as intended by the
Constitution to limit federal authority to the powers granted
thereunder.
1]
ll. Title V of the Act Authorizes the Federal Government
Directly or Indirectly to Exercise Police Power Control
Over Local Affairs of Private Persons and the State, In
Excess of Congress’ Constitutional Authority under the
Commerce Clause and Contrary to the Tenth Amendment
The Secretary asserts that the Act is properly preemptive of
State law and that states’ integral functions are not necessarily
affected thereby.® Thus, one of the more useful ways to analyze
the Virginia and Indiana cases is to consider the effect of Title V
in a state that does not choose to submit a program, or fails to
submit an approvable one. Under the standard constitutional
theory relied on by the Secretary in his brief, Congress need not
have given the States an opportunity to undertake the program
and could, if it wishes, empower the Secretary to preempt the
field of regulation of the subject matter. In this view of the
case, Congress has created the OSM to exercise preemptive and
primary jurisdiction over surface and underground coal mining,
in a State that fails to submit an approvable program, and the
OSM will be the regulatory authority in such a state.
If that occurs, then the following effects necessarily follow,
as a legal matter:
- 1) The Federal government decides whether coal can
be mined in a State and issues mining permits under
§ 510(a).
2) In cases where the mineral estate has been severed
from the surface estate,® the surface-subsurface relation-
ship is determined in accordance with State law (as shown
to the satisfaction of the Federal government), provided
that the regulatory authority would not “adjudicate” prop-
erty rights disputes. § 510(b)(6).
5Secretary’s Brief in the Virginia case (Nos. 79-1538 and 79-
1596), pp. 26, 31.
6 Illinois believes this is the case in most instances in Illinois.
Operators normally lease the surface estate for the period required to
extract the coal, and either pay a set fee per acre or a fee based on the
quantity of coal extracted.
12
3) The Federal government finds in writing, whether
the operator whose coal is overlain with prime farmland
has technological capability to restore the land to equiva-
lent agricultural yield levels after mining and to comply
with performance standards in § 515(b)(7). The govern-
ment in any event determines what farmlands are “prime”
and subject to this special protection.
4) The Federal government decides on the rules that
govern exploration for coal. § 512(a).
5) The Federal government notifies the local govern-
ment in the locality (not the State), and otherwise deals
directly with them in processing permits. §§510(a),
513(a).
6) The Federal government enforces the requirement
that land be restored to a condition capable of supporting
its prior uses, or higher and better uses. § 515(b)(2).
7) The Federal government decides on exceptions to
approximate original contour of private lands in accord-
ance with “‘an ecologically sound /and use”. § 515(b)(3).
8) The Federal government insures that all explosives
at the mine are used in accordance with federal and State
law and that notices to persons within one half mile thereof
are given. § 515(b)( 15).
9) The Federal government insures “that all reclama-
tion efforts proceed in an environmentally sound manner.”
§ 515(b)( 16).
10) The Federal government enforces a requirement
that access roads do not damage public or private proper-
ty. §515(b)(17).
11) The Federal government approves postmining
land use. §§ 515(b)( 19), 515(b)(20), and 515(b)(21).
12) The Federal government enforces all performance
standards of Section 515, respecting soil handling, waste
piles, impoundments, etc. Mining companies may be
13
required to meet “such other criteria as are necessary to
achieve reclamation in accordance with the purposes of
this Act, taking into consideration the physical,
climatological, and other characteristics of the site; and to
the extent possible using the best technology currently
available, minimize disturbances and adverse impacts of
the operation on fish, wildlife, and related environmental
values, and achieve enhancement of such resources where
practicable”. §§ 515(b)(23) and (24).
13) The Federal government decides on the manner
of mountain top restoration land use based on whether an
“equal or better economic or public use” will be achieved.
§ 515(c)(3).
14) The Federal government regulates all surface
effects of underground mining. § 516.
15) The Federal government decides what lands in a
state are to be designated unsuitable for mining, and may
declare unsuitable for mining any lands inconsistent with
farms, woodlands or other renewable resource use on the
surface as found by the federal government to be prudent.
§ 522(a) and (c).
From the above review it should be apparent that the
overall effect of OSM’s exercise of authority is to supplant the
states and private persons in the supervision of the use and
development of privately owned land and to regulate the
conduct of mining with respect to what are, overwhelmingly,
local effects. Mining (as distinguished from the sale of mined
coal) is essentially a use of real estate,” and, except as adverse
effects on waters of the United States or the ambient air quality
relatable to national air quality standards can be found, the
7 In many instances, mining is the only use of an interest in real
estate, viz. where the mineral rights, are owned separately from the
surface rights, which is a common occurrence. This property is
governed by state law. C7. Ill. Rev. Stats. ( 1979), Ch. 96% Pars. 156,
4401.
14
activity is strictly local. Rather than set air emission or water
discharge limitations relatable to environmental quality that
affects commerce beyond the mine, the very conduct of land use
and handling is directly regulated by the above cited provision
in Title V, and the future use of land is provided for. Thus, the
regulation of the subject matter is not of commerce, but of local
activity, including not only mining but permission to use land
for mining and regulation of postmining land use.
The precedent set by upholding the authority asserted by
the Secretary of Interior in this case would logically lead to a
conclusion that the Federal government can determine not only
local land use, but also how local land use decisions are made.
This will enable Congress to displace and override local land
use decisions and authorize and supervise the conduct of
industry, or local housing patterns, not because they threaten
the public and environment in a manner that impedes on
interstate commerce, but because they may have only a trivial
“ripple” effect on interstate commerce. As found by the District
Court in the Indiana case, only a trivial percentage of national
agricultural product is affected by surface coal mining.
If the challenged provisions of the Act are upheld, no
significant amount of coal can be mined without the federal
government’s permission, and in accordance with detailed
standards set by the government in the Federal Aci and the
Secretary's rules. Thus, the question is posed by this case of the
extent to which the Federal government can effectively take
over the conduct of an entire basic industry,® and at the same
time, supplant private owners and local and state governments
to decide issues of land use.
8 The Secretary’s briefs repeatedly refer to coal mining as if it
were a “public nuisance” subject to very stringent controls or even
abolition. See, e.g., Secretary’s Brief in the Virginia case (Nos. 79-
1538 and 79-1596), p. 55. Illinois does not dispute that surface coal
mining is often accompanied by temporary significant local changes,
or that, if improperly managed, it can pose undesirable threats of a
long term type. However, as shown at trial, agriculture itself has
Footnote continued on following page.
15
The Secretary’s brief passes off the question of Congress’
asserted power as more or less routine. It cites cases upholding
the right of Congress to regulate for “environmental” reasons.°
Not unlike the concept of interstate commerce itseif,
“environmental” concerns are ubiquitous, and can be rationally
extended and related to every human activity. This Court must
not let the necessary goals of environmental protection, which
are shared by every state and a majority of the populace,
substitute for analysis of the central issue—whether under our
system of laws the Commerce Clause of the Constitution
extends to the declaration of areas of states unsuitable for given
use, and to the determination that certain privately owned lands
and minerals may or may not be used at all, or except on
conditions imposed directly or indirectly by the federal govern-
ment for the handling and postmining use of the real estate on
which the mine i 'ocated.
Contrary to the Government’s assertions, the authority of
the Government to make land use decisions is not the same as
that asserted in the nation’s major environmental protection
laws. The Clean Water Act, although revised a number of
times since its initial passage, has consistently been adminis-
tered
Footnote continued from preceding page.
adverse environmental effects on water quality. If coal mining is a
“nuisance”, and thereby subject to strict control by the federal
government, then no basic industry or farm in this country is safe from
‘otal federal control. Neither Mugler v. Kansas, 123 U.S. 623 (1887),
nor any other case upholds such power in Federal hands.
The Federal government’s attempt to seize control over coal
mining appears especially objectionable when one considers that the
Federal government owns and the Secretary of the Interior controls
vast amounts of coal in the Western states. In many instances this
Western coal competes with coal produced in Illinois and other
Midwestern states. By imposing unreasonably stringent prime farm-
land reclamation requirements on Midwestern coal producers, which
requirements are not applicable to Western mines because they are
not located on prime farmlands, an unscrupulous Federal government
could discourage Midwestern coal mining and place its coal resources
in a favorable competitive position. See also, note 19, infra.
9 See Secretary’s Brief in the Virginia cases (No. 79-1538 and 79-
1596), p. 25, note 13.
16
...to recognize, preserve and protect the primary
responsibilities and rights of the State to prevent, reduce
and eliminate pollution, to plan the development and use
(including restoration, preservation, and enhancement) of
land and water resources.... 33 U.S. C. § 1251(b); also
It is the policy of Congress that the authority of each
‘to allocate quantities of water within the jurisdiction shall
not be superseded, abrogated or otherwise impaired...
33 U.S. C. § 1251(g).
With respect to the Clean Air Act, Congress found specifically
that urbanization has resulted in mounting dangers to public
health and welfare, but that:
“the prevention and control of air pollution af its
source is the primary responsibility of State and local
governments.” 42 "J.S.C. §7401(a)(3) (emphasis
added. )
The cases cited by the Government do not change the picture of
states being the responsible agencies with respect to local land
use and economic development decisions. The states are given
meaningful responsibility to decide the precise mix of controls
they will insist on to achieve the national ambient air quality
standards.
Illinois does not question Congress’ power to set valid air
or water pollution discharge regulations for the mining in-
dustry. Thus, to the extent necessary to control such effects,
Title V is presumably valid. However, a review of Title V
shows that effects other than air and water pollution control are
its main focus. If air or water discharge standards were all that
is involved, the Title could be reduced to a few paragraphs of
text. The Act contains soil handling techniques and revegeta-
tion requirements which concern themselves with local impacts.
It also makes direct land use decisions. As such, these are
inherently suspect exercises of Congressional commerce clause
power at least where their exercise can be shown to usurp or
directly affect state police power functions, or make the delivery
of state services difficult.
17
The Congress, in asserting what is effectively a power to
“zone” the United States, imposes on particular states and
individuals, by action of representatives elected from other
states,10 a fundamental diminution of their right to use real
property (or mineral rights) which they possess. Effectively,
ownership and control of energy resources will have been
shifted from private hands into the hands of United States
government officials. Private ownership will not be a right to
reasonable use of property, but a mere privilege to request
government permission to make any use thereof. Illinois urges
this Court to reject a future that so places the populace and its
general welfare at the mercy of big government. The Secretary
asserts that this Court is bound to uphold any law for which
there is a “rational” basis of connection with regulation of
interstate commerce. This argument, extended to its ultimate
conclusion in this case, has drastic and dangerous results for the
future of the people of this country.
To press a juristic principle designed for the practical
affairs of government to abstract extremes is neither sound
logic nor good sense. And this Court is under no duty to
ma.e law less than sound logic and good sense. New York
v. United States, 326 U.S. 572, 577 (1946).
The exercise by the Federal government of the powers granted
in Title V deal predominantly with local affairs of land use.
Even if land use authority is not viewed as “exclusive” with the
States, the attenuated basis for assertion of commerce power in
this controversy clearly exceeds Congress’ authority, and im-
properly invades important state rights reserved by the Tenth
Amendment.
10 Representatives of local government are generally the individ-
uals who have zoning power, if such power is granted by state
legislatures. If a state were to perform a statewide zoning function.
local citizens at least have a realistic means of controlling the exercise
of that power at the ballot box. On a national scale, certain states
with resources Congress finds valuable effectively become subject to
treatment as special zones or provinces of the Congress, with no
countervailing compensation or practical means of controlling the
process at the ballot box because the adverse economic or other
effects are borne not by Congress, but by the locality. These effects
include jobless pay, welfare, lower property, sales, income and
severance taxes, etc.
18
Ill. The Provisions of the Act Found to Invade States’ Rights
in the Indiana Case Will Seriously Interfere With the
Rights of the State of Illinois."'
The State of Illinois probably has more at stake in the
outcome of this case than any other state of the Union. Illinois
ranks third in the nation in number of acres of prime farmlands
and contains an abundance of proven recoverable bituminous
coal reserves. Illinois’ policy, law and regulation is dedicated
now, as it was prior to enactment of the Surface Mining Control
and Reclamation Act of 1977 (the “Act”’), to the maximization
of the benefits of these resources and the minimization of harm
to its citizenry from their use. 12
If the judgment of the Federal District Court of the
Southern District of Indiana should be overturned by this Court
on the basis that the Constitution allows Federal government
control over private land (including private mineral resources )
and the post-mining land use of land in a state, then the right
and sovereignty of the State of Illinois and its local citizenry
and municipalities to determine land development and use
within their borders will be mortally wounded. At least 9
million acres of Illinois prime farmland would be effectively
subjected to the status of a federal province, and Illinois and its
12 Illinois has regulated coal mining since 1874, and the reclama-
tion of surface coal mines since 1971. P.A. 77-1568, eff. Sept. 17,
1971. It has issued mining permits and required compliance with
stringent farmland reclamation requirements since prior to passage of
the Federal Act. Illinois Surface-Mined Land Conservation and
Reclamation Act Rules and Regulations, Rule 1104. State regulation
of coal mining is comprehensive. See Ill. Rev. Stats. (1979), Ch. 96%
§§ 251 et seg., 4001, 4101, 4401, 4501, ef seg., 7901 ef seq.
11 The Indiana case is emphasized by Illinois because Indiana’s
facts and interests are closer to Illinois’ than are the steep slope
concerns dealt with in the Virginia decision. Illinois supports affirm-
ance of portions of the Virginia decision appealed by the Secretary,
and, remand of the portion appealed by Virginia for a determination
of those sections which interfere with the State’s rights this Court finds
protected by the Tenth Amendment.
19
citizens would be deprived of their reserved rights under the
Tenth Amendment to the Constitution of the United States.
For these reasons, Illinois supports the State of Indiana and the
Commonwealth of Virginia.
The positions urged herein are based upon the premise,
expressed at length in the trial Court’s decision in the Indiana
case (Slip Op. pp. 22-25), that the prime farmland provisions
of the Act, which were found below to exceed the Commerce
Clause power and to invade the Tenth Amendment, will be
imposed by the Department of the Interior within the state in
any event. The provisions will be imposed directly, in the event
a state does not seek or obtain program approval from the
Secretary of the Interior, or indirectly, and subject to federal
control, in the event a state program is authorized. Illinois
supports a strong, independent state legislative effort to require
land preservation and reclamation by coal mining operations,
which effort might, in the judgment of state officials and the
State General Assembly, include some or all of the same or
similar provisions invalidated by the Court below as require-
ments improperly imposed by the Federal government upon
states and their citizens.
Federal designation of land use of reclaimed prime farm-
land, and determination of lands which are unsuitable for coal
mining, will impair the integrity of Illinois’ state and local
governments, and will diminish their ability to function effec-
tively in a Federal system. The most fundamental loss to
Illinois and its citizens that arises from the provisions held
unconstitutional below is the ability for the State independently
and freely to make its own laws on the subject of the use of its
resources and land use within its borders. Under the Act, all
Illinois’ laws on the subject of coal mining and coal mined land
reclamation become subject to the scrutiny of the Secretary of
Interior. See Act, § 505, 30 U.S.C. § 1255. While the
Commerce and Supremacy Clauses of course enable federal
legislation to occupy the field of a subject of interstate com-
merce, this case represents the well-documented judgment of a
20
federal district court, after full trial, that certain of the require-
ments imposed by Congress on coal mine operators are directed
at a subject having at best a trivial impact on interstate
commerce: the handling, replacement and post-mining land use
of certain farmlands defined as “prime” because of their
favorable crop production capacity and historical use, and the
designation of lands unsuitable for mining within a sovereign
state.
The Surface Mining Control and Reclamation Act works a
severe and disabling injury to the functioning of state and local
government in Illinois because of the imposition of federal
dictation of the special handling of prime farmlands, and a
displacement of state decision making on the suitability of lands
for mining.'? Almost all Illinois coal mines (both surface and
13 At page 23 of his brief, the Secretary attempts to indirectly
refute what he characterizes as the “suggestions of the [Indiana]
district court’s opinion” that the Act regulates the post-mining use of
mined lands by arguing that while the Act encourages the farming of
prime farmlands, it does not mandate such use. In note 13 the
Secretary further states that 30 C.F.R. § 823.11(c), § 823.15(b) and
(c) of his regulations, which require that mine operators actually
grow crops on prime farmlands during the post-mining reclamation
period, were remanded by the United States District Court for the
District of Columbia. The Secretary’s statement is misleading and not
completely accurate. First, the Secretary is actively appealing the
District Court’s remand of 30 C.F.R. § 823.15(b) and (c). Brief for
the Secretary of the Interior as Appellee and Cross-Appellant, dated
December 23, 1980, Jn Re: Permanent Surface Mining Regulation
Litigation, No. 80-1810 and consolidated case nos. 80-1811, 80-1812,
80-1813, and 80-1823 (D.C. Cir., filed July 15, 1980) at 52-61, and
Letter containing non-binding statement of issues to be raised on
appeal, from the Justice Department to Christine N. Kohl, Chief Staff
Counsel, U.S. Court of Appeals for the District of Columbia Circuit
(September 29, 1980). Further, although the District Court re-
manded 30 C.F.R. § 823.11(c) and § 823.15(b) and (c) in the first of
Footnote continued on following page.
21
underground )'* contain overlying prime farmland so as to
bring the disputed provisions of the Act into play at almost
every significant mine site.
Illinois suffers economically, and state government’s deliv-
ery of services is directly affected, by the Act’s prime farmland
requirements. Although Illinois is the nation’s fourth largest
coal producer, Illinois coal is not very much in demand relative
to other states’ coal. Despite Illinois’ vast reserves and their
Footnote continued from preceding page.
its seriatim decisions, Jn Re: Permanent Surface Mining Regulation
Litigation, No. 79-1144, ____F. Supp._____, 14 E.R.C.. 1083, 1106
(D.D.C. February 26, 1980), it upheld 30 C.F.R. § 785.17(d) (1) of
the Secretary’s regulations which requires as a condition for issuance
of a mining permit covering prime farmlands that “[t]he approved
post-mining land use of these prime farmlands will be cropland”;
Round II Mem. Op. at 5-6 (May 16, 1980). Illinois currently is
appealing that portion of the District Court’s ruling. Brief of the
Appellant State of Illinois, at 44-57.
14 It is very important for the Court to realize that underground
coal mining is being subjected by the Department of Interior to
similar rules as surface mining. See Permanent Regulatory Program.
30 CFR Parts 816, 817, and 823. Very serious technical and legal
problems occur as a result of this approach, including the impossibility
of assuring restoration of land disturbed for the construction of
facilities which will stand for several decades. Judge Flannery, in the
judicial review case challenging the Permanent Program regulations
found the Secretary to have been too facile in his application of
identical rules to underground mines. Virtually all recovery of coal in
Illinois is affected by these disputed provisions. [Illinois argued
unsuccessfully in the District Court that underground mines were not
intended to be covered as lands “to be mined” under the Act, Section
510(d)(1), 30 U.S.C. § 1260(d)(1). In Re: Permanent Surface
Mining Regulation Litigation, No. 79-1144. (D.D.C. 1980), appeal
docketed, No. 80-1810 et al (D.C. Cir. August 20, 1980).
22
attractive heat value per pound, the relatively high sulphur
content of its coal coupled with stringent air quality and
emissions requirements applicable to its combustion have flat-
tened demand for Illinois coal. The Federal] Act, in Title IV,
not directly at issue, imposes a severance tax on Illinois coal.
Illinois’ “share” of the moneys is withheld unless Illinois
changes its laws to conform to federal law on the subjects
complained of below. This abandoned mined land fund, while
of great merit, thus collects the very same marginal severance
taxes which the Illinois coal market might afford if imposed
directly by the state and holds them “for ransom.” Likewise, at
this time, roughly two thousand miners are out of work in the
Illinois coal fields, while another 400-600 are working short
work weeks. Many more jobs are indirectly affected. In the
past year, five large Illinois coal mines have closed. At least
two of these closures are relatable in part to the implementation
of the prime farmlands provisions complained of below. The
burden of this unemployment is borne directly by Illinois’
government, state and local, in the provision of welfare services
and the erosion of income tax base. By federal dictation of the
terms on which, and whether, coal shall be mined, Illinois’
citizens, both the employed and the unemployed, are deprived
of a direct voice in their economic and environmental destiny.
Only some 5,000-6,000 acres of Illinois lands are newly
mined annually. All of this acreage is subject to prompt, strict
reclamation under state law. By contrast, in 1979, some
327,000 farmland acres (not all “prime”) were in voluntary
“set aside” programs. The Federal government paid the
owners of those lands more than $7 million not to grow crops.
Even if Illinois’ annual mined acreage were to double over-
night, it still would require some 32 years to mine the land in
Illinois set aside deliberately last year to alleviate low prices in
the farm commodities markets. In fact, lands mined in Illinois
are restored to their optimal use, and rowcrop quality lands
must be restored to rowcrop capability under Illinois law.
23
Appendix A is an excerpt of relevant provisions of Illinois law
in effect since 1975, well before the passage of the federal Act.
Ill.Rev.Stats. (1979), Ch. 964, par. 4507.
The State also has an interest beyond that of protecting the
role of making land use designations. Rights of citizens of the
State will be infringed if the prime farmland use provisions are
allowed to stand.'5 By requiring a mine operator actually to use
the reclaimed land as farmland until yields reach those of
surrounding lands, the Act deprives the owner, who farms for a
living, of the use of his property during the time the operator
must farm the land.'® The Secretary of the Interior has ruled
that the Act allows preparation of the land prior to cropping to
continue for up to ten years (30 CFR 823.15(b)) and to
require at least three successive years of yield which are
equivalent to yields from surrounding farms (30 CFR
823.15(e)(i)). This interpretation indicates that an owner’s
land could be occupied by the coal mine operator as many as
thirteen or more years after mining and neither the Secretary
nor the Act puts an absolute maximum time limit for com-
pliance with the Act’s requirement to reach equivalent yields
other than “a reasonable time.” Illinois believes an owner
should not be deprived of the use of his land for such long
periods of time. His land’s use should not be designated by a
national legislature constituted of representatives from all fifty
15 In such a case, this Court has allowed one standing to assert
the rights of third persons when enforcement of the challenged
provisions against one would result indirectly in the violation of third
parties’ rights. Warth v. Seldin, 422 U.S. 490, 510 (1975).
16 The State of Illinois has received inquiries from farmer-lessors
about the length of time they must wait after mining before they may
farm their land again. The Secretary’s brief in the Indiana case ( No.
80-231), p. 23, makes it appear that this issue of requiring crops to be
grown is moot, because the District Court in the final judicial review
of the regulations found this rule inconsistent with the Act. To the
contrary, the Secretary persists in asserting this requirement by
appealing this holding in a brief filed December 23, 1980. See note
13, supra.
24
states. Further, local governments should not be deprived of
their traditional right to designate land use for the length of
time which will be required to meet the Act’s requirement. '7
There are numerous examples of how the Act regulates or
interferes with state governmental decisions. Illinois believes it
should have freedom to decide in given cases that a mine is
more important to a community than whether exactly 100 or
more per cent of pre-mining crop yield is obtainable after
restoration of the soil. See Section 510(d)(1). Illinois may not
wish to approve post-mining land uses at the state level, as
required by the Act, but instead to leave such decisions to local
government and private owners. See Section 515(b)(2).
Although Illinois may not object, a given state may not wish to
structure its government such that a local governmental agency
must have certain rights. See, e.g., Sections 508(a)(3)(8);
510(a); 513(a); 515(b)(2); 515(b)(15)(A). Neither should
a process for land use planning be required of a State at the risk
of federal intervention. See Section 522(a).
Reduced production of coal results from a number of
factors, of course. However, it is undeniable that such reduced
production can be expected because of unreasonably high costs
imposed on Midwestern states, compared to Western mining
that is not governed by the prime farmland rules struck down
by the Indiana district court. For seven important Illinois
mining counties, a Southern Illinois University study on the
impact of Western coal in Illinois shows projected losses of as
many as 2,592 direct mining jobs and 6,749 indirect job losses,
for a total seven county loss of as much as $132,369,788 in total
17 The constitutionality of the Secretary’s rule requiring that
where prime farmlands are proposed for mining “the post-mining
land use of these prime farmlands will be cropland”, 30 CFR
§ 785.17(d)(1), and related provisions interfering with state and
local decisions on land use were challenged by Illinois in the judicial
review case, but have been decided adversely to Illinois and are on
appeal. See note 13, supra.
25
income by 1985.18 Not only are local property tax revenues
jeopardized, but serious burdens are imposed on the State in
terms of lost income and sales taxes, increased demand for
social welfare services, and reduced ability of the State to aid
local government with rebates from sales and income taxes.
States cannot be put at Congress’ mercy because of Congres-
sionally determined land use policies, without serious adverse
effect on their ability to effectively govern and provide services
to their citizens.
What especially concerns Illinois is Congress’ apparent
decision that prime farmland, once affected, must be returned
to an actual use of crop production, regardless of the legitimate
needs of its growing population as traditionally determined by
locally chosen officials. . One irony of the requirement of
returning prime lands to cropland is that it removes from
alternate use the very lands whose agricultural productive
capacity is most in dispute. The faces of communities can
change drastically over a ten to fifteen year period, and state
and local governments should be allowed to provide for such
changes so there will be no possibility of an operator’s having to
farm reclaimed land while a growing community expands
around him and urbanization thereby occurs on unmined prime
farmland in the surrounding area. In Illinois, almost 100,000
acres of prime farmland are taken out of crop production
annually, including only 5,000 or 6,000 acres taken temporarily
for the use of coal mining. In many communities in Illinois,
there is no practicable choice of another type of land to be
affected by expansion of communities and public roads and
facilities. 19
18 The figures quoted assume continued heavy emphasis on
Western coal, due in part to environmental restraints not at issue here.
The Coal Extraction and Utilization Research Center,
SIU—Carbondale, Final Report: The Economic Impact of Western
Coal in Illinois, June 22, 1979, Table 11-17.
19 The danger to Illinois from federal control of prime farmland
use is not limited to its mining counties. Illinois contains an estimated
Footnote continued on following page.
26
Illinois is thus before this Court in less than the happy
position of undoubtedly appearing to some of its citizens most
concerned with the preservation of farmland and the values of
community life associated with farming, to oppose good recla-
mation law. To the contrary, in fact, Illinois’ government finds
workable and reasonable as a police power measure, appropri-
ate for a state to enforce, the substance of § 515(b)(7), 30
U. S. C. § 1265(b)(7), which includes the provisions for soil
handling and reclamation of prime farmland properly found by
the Court below to be outside of Congress’ power to impose
Footnote continued from preceding page.
23.8 million acres of prime farmland and other farmland which is
used to produce rowcrops. Approximately the southern two-thirds of
Illinois is underlain by bituminous coal reserves; Illinois contains
approximately twenty-five per cent of the nation’s bituminous coal
reserves. The total of estimated coal reserves in Illinois is 162 billion
tons of which 30 billion tons, or roughly 1/8 of the nation’s total
recoverable coal reserves of all types, is recoverable under present
technology. Of this 30 billion tons, about 30-40% is mineable by
surface mining methods and the rest are mineable by underground
mining methods. Prime farmlands cover at least 50 to 60% of the coal
reserves in the state, and are interspersed so as to cover for practical
regulatory purposes a much greater percentage of mined land.
Because of the large size of Illinois’ coal reserves and other
reserves underlying Indiana and Western Kentucky, one practical
effect of allowing the Interior Department to prescribe land use
controls that help keep this coal from the marketplace is to tend to
give to the Interior Department monopoly power over coal resources.
Much of the coal mined in the West is coal from federal lands or lands
located such that federal lease rights control its being mined. Thus,
without paying for the nation’s largest energy supply, the federal
government, by land use control, can effectively see to the max-
imization of federal profit from coal development. Thus, contrary to
intimations in the Secretary’s brief that the governmental action here
is not “entrepeneurial” in character (Virginia Brief, pp. 53, 54), the
Interior Department daily exercises an entrepeneurial judgment on
behalf of the government respecting the development of vast coal and
oil resources owned by the United States, and inquiry into its
economic impact is imperative. Penn Central Transp. Co. v. New
York City, 438 U.S. 104 (1978). For Interior Department entrepe-
neurial authority, See § 30 U. S. C. passim.
27
upon states and their citizenry. Illinois’ own law served in part
as a model for these provisions. Other provisions such as
§ 510(d)(1), 30 U. S. C. § 1260(d)(1), or §519(c)(2), 30
U. S. C. § 1269(c)(2), contain desirable elements that are
acceptable state police power measures if reasonably inter-
preted.
Illinois as a matter of state policy is committed to a long-
term effort to secure and protect its natural bounty of prime
farmlands against irreversible loss or degradation. Attached as
Appendix B, is an Executive Order of Illinois’ Governor, dated
July 22, 1980, which confirms the policy of the State “to protect,
through the administration of its current programs and regu-
lations, the state’s prime agricultural land from irreversible
conversion to uses which result in its loss as an environmental or
essential food production resource.” In an official statement at a
federal public hearing on the Illinois “permanent program”
submittal, the Illinois Department of Mines and Minerals
declared, in effect, that if court action (such as this) or other
events result in a federal scheme of regulation less than
adequate to protect Illinois’ agricultural resources, it is prepared
to work to assure such protection. Finally in Appendix C, there
is reprinted a recent statement of Illinois’ intent to protect prime
farmland and other lands well suited to producing crops, as
embodied in Rule 1104 (a Rule promulgated prior to the
enactment of the Federal Act) which appears in the August 20,
1980 Congressional Record at pages $11279; we respectfully ask
the Court to take judicial notice of these statements. Careful
examination shows that in Illinois’ mining counties, one million
more acres of rowcrop lands are required, if mined, to be
restored to their row-cropping capability than the Federal Act
requires respecting prime farmlands. Thus Illinois assures
greater total post-mining agricultural productive capacity than
28
that required by the Act, and this occurs by methods developed
by experts costing significantly less per ton of coal than the
preferred “federal” method.
Before the Act became law, Illinois was already strictly
regulating surface mining within its borders. Among the most
progressive of its regulations was Rule 1104, adopted in 1976,
which prescribes topsoil removal, plus detailed requirements for
a minimum 48 inches of root medium depth and texture of
reclaimed land which was capable of growing rowcrops prior to
its being mined. These requirements were developed by soils
scientists with the particular goal of assuring adequate water
holding capacity in the reclaimed soil to support rowcrops.
They will continue to assure high quality immediate reclama-
tion of coal mined lands. .
Even if, for the sake of argument, Illinois or other states do
not always provide the same rules and regulations for mining as
are deemed fit by Congress, the Tenth Amendment must
provide states with immunity from Congressional interference
with land use decisions that so intimately involve local econo-
mies and affairs.
Whether federal bureaucracy enforces Congress’ decree, or
whether a State agrees to follow Congress’ decree, at the risk of
federal imposition of a program, does not alter the fact that
Congress has removed from state and local legislative bodies
their traditional authority to determine the most appropriate
use of certain important lands within their jurisdiction accord-
ing to their citizens’ particular needs, as determined after those
local citizens petition their local or state elected officials. Illinois
would distinguish this statutory scheme from situations where
eligibility to use a “carrot” of federal funds is contingent on
adoption of a specific program. E.g., Massachusetts v. Mellon,
262 U.S. 447 (1923). While abuses also exist of the “carrot”
approach, it is sufficient to note here that the complained of
land control provisions are federally enforced in a state even if
the state decides to pass up the “carrot”. The provisions for
29
mandatory direct or indirect federal control of land use must be
held to be constitutionally faulty, or else the structure of the
federal system will have been shattered. Such a holding will
preserve a balanced federal system, and nothing therein would
prevent Congress from passing a law using economic or other
incentives to induce states, voluntarily, to adopt the measures
unconstitutional as here imposed.
30
CONCLUSION
It is imperative to the harmony of and future sensible
government of the federal Union that this Court limit the reach
of the Act complained of to subjects reasonably within the
intent of the Commerce Clause, and affirm the District Court
decisions below insofar as they find provisions of the Act to
have violated the Tenth Amendment rights reserved to the
States. As beneficial as many specific provisions of the Act may
be in an abstract sense, the effect of vesting land use control
authority in Congress to the extent provided in the Act is
antithetical to the proper functioning of state and local govern-
ment, and to the liberty of the people.
Respectfully submitted,
TYRONE C. FAHNER
Attorney General, State of Illinois
Room 900
160 North LaSalle Street
Chicago, Illinois 60601
(312) 793-2501
HarvVEY M. SHELDON
Special Counsel to the State of Illinois
One North LaSalle Street
MICHAEL J. DUFF Suite 2300
NISEN, ELLIOT & MEIER Chicago, Illinois 60602
Chicago, Illinois (312) 346-7800
Of counsel. Attorneys for Amicus Curiae, The State of Illinois
January 9, 1981
APPENDIX
la
APPENDIX A
Illinois Law Requiring Restoration of
Productive Capacity, Effective July 1, 1975
Ill. Rev. Stat., 1979, Ch. 96%, par. 4507. Duties of Operator
§ 6. Duties of Operator. Every operator to whom a permit
is issued pursuant to the provisions of this Act may engage in
surface mining upon the lands described in the permit upon the
performance of and subject to the following requirements with
respect to such lands:
* * *
(j) When the Director determines that the land to be
affected is (1) capable of being reclaimed for row-crop agricul-
tural purposes and suitable for row-crop agricultural purposes
based on United States Soil Conservation Service soil survey
classifications of the affected land prior to mining, and (2)
when the Director determines that the optimum future use of
the land affected is for row-crop agricultural purposes, the
affected land shall be graded to the approximate original grade
of the land provided that the final cut and submerged roadways
may remain if the Department determines that such final cut or
roadways could form a water impoundment capable of support-
ing desirable uses such as water for livestock or wildlife; and if
to be used for fish life, shall have minimum depths in accord-
ance with standards for fish stocking as recommended by the
Department, and provided further that the box cut spoil shall
be graded in accordance with subparagraph (a) of Section 6:
The reclamation requirements in this Section do not
apply to affected land used for a sanitary land fill if such
sanitary landfill is approved by the Environmental Protection
Agency. The Environmental Protection Agency may regulate
the amount of land to be used for the purpose and may
establish a time schedule for the orderly and timely completion
2a
of such sanitary landfill. Any affected land designated for
sanitary landfill and not used for such purpose within 5 years is
subject to the reclamation provisions of this Section;
On all affected lands to be graded to the approximate
original grade under this subsection (j) all or part of the
darkened surface soil, as defined in this Act, shall be segregated
during the stripping process and replaced as a final cover as a
last step in the required grading. When available in such depth,
at least 18 inches of the darkened surface soil shall be
segregated and replaced. When less than 18 inches of dark-
ened surface soil exists all such lesser amounts shall be segre-
gated and replaced. In no case under this subsection (j) shall
less than the top 8 inches of surface soil, darkened or not, be
segregated and replaced. This segregation and replacement
requirement may be altered by the Department only if it is
determined upon the advice of competent soil scientists that
other material available in the cast overburden would be
suitable in meeting the reclamation requirements. Below the
darkened surface soil the replaced material shall be suitable as
an agricultural root medium. The Department shall determine
by rules and regulations what constitutes a suitable agricultural
root medium of composition and depth. On all lands to be
reclaimed under this subsection (j), the operator shall not be
required to create a soil condition better than that which existed
prior to surface mining;
3a
APPENDIX B
STATE OF ILLINOIS
EXECUTIVE ORDER Number 4 (1980)
PRESERVATION OF ILLINOIS FARMLAND
The natural resources of Illinois—land, minerals, water,
and air—are both finite and fragile. In the absence of wise use
and consistent management practices, these resources are
threatened by irreversible damage or loss. Protection of the
State’s natural resources is essential to guard the public health,
safety, and welfare, and to assure an adequate natural resource
supply and quality for use and enjoyment by future generations.
Since World War II, the amount of Illinois land dedicated
to agriculture has steadily declined at an average rate of
approximately 100,000 acres per year. This substantial loss of
farmlands is the equivalent of eight average-sized Illinois
counties. If this trend continues, the State will lose the
equivalent of another five or six counties by the end of the
century.
The conversion and loss of agricultural land has dimin-
ished Illinois’ cropland base and affects environmental quality.
The supply of land most suitable for farming is finite. Con-
version of this land to urban development and other non-farm
uses reduces future food production capability and may ulti-
mately undermine agriculture as a major economic activity in
Illinois. With less prime farmland available, there will tend to
be greater reliance on marginally productive land, resulting in
greater soil erosion, increased fertilizer requirements and in-
creased environmental damage. Loss of agricultural land can
also reduce the beneficial role which the land itself can play.
Agricultural land reduces runoff by absorbing precipitation,
aids in replenishing groundwater supplies and can buffer
environmentally sensitive areas from encroaching development.
4a
The importance of preserving our agricultural land base
has been recognized by the Illinois Rural Planning Council, the
Task Force on the Future of Illinois, and in the State’s
““Comprehensive Growth and Resource Conservation Policies”.
Each of these efforts recommends that the State minimize the
conversion of prime farmland that results from the direct or
indirect effects of State programs and also encourages the
achievement of related goals, such as reducing the loss of soil
through erosion.
Agencies of the Executive Branch perform numerous func-
tions which affect the management of Illinois’ natural resources,
including the conversion of prime agricultural land. Decisions
on State grants and capital improvements may have significant
impact on the conversion process, yet often they may not
adequately recognize that agricultural land is a finite resource
that can be irretrievably diminished as a result of State actions.
Currently there is no single policy or coordinating mecha-
nism to ensure that State actions do not unnecessarily encour-
age the conversion of prime farmland to non-farm uses,
particularly when there may be alternatives available that are
less destructive to our best agricultural lands.
Accordingly, I order the following:
I. It shall be the policy of the State of Illinois to
protect, through the administration of its current programs
and regulations, the State’s prime agricultural land from
irreversible conversion to uses which result in its loss as an
environmental or essential food production resource.
II. The Department of Agriculture shall be the lead
agency for implementing this policy in the State of Illinois.
A. The agencies named below shall each prepare
and submit to the Governor, with a copy to the Illinois
Department of Agriculture, an Agricultural Land
Preservation Policy no later than one year from the
effective date of this Executive Order. This policy
shall include an analysis of the impact on agricultural
Il.
Sa
land conversions caused by their programs, regu-
lations, procedures and operations. The policy shall
also detail measures that can be implemented by the
agency which will mitigate conversions to the max-
imum extent practicable. Each policy shall provide
for a greater degree of protection for Classes I, II, and
III lands than for Classes IV through VIII (as defined
by the U.S. Department of Agriculture). The
agencies are: Capital Development Board, Depart-
ment of Conservation, Department of Commerce and
Community Affairs, Environmental Protection
Agency, Institute of Natural Resources, Department
of Mines and Minerals, the Department of Trans-
portation, Bureau of the Budget, and the Illinois
Commerce Commission.
B. Those named State agencies shall participate
in an inter-agency committee chaired by the Illinois
Department of Agriculture to solve mutual problems
in meeting the objectives of agricultural land preserva-
tion.
C. The Department of Agriculture will analyze
State funded capital projects that impact farmland
conversion and advise the Governor’s Office as to the
consistency of agency actions with the policy estab-
lished by this Executive Order.
D. After the second anniversary of this Executive
Order, all conversions of agricultural lands by any
State agency shall meet the criteria specified in that
agency’s Agricultural Lands Preservation Policy.
EFFECTIVE DATE
This Executive Order shall become effective on July
22, 1980.
James R. Thompson
Governor
6a
APPENDIX C
* 2 *
SENATOR PERCY:
I would like to submit for the RECORD a copy of a letter I
received this morning from Mr. Douglas Downing, supervisor
of the land reclamation division of Illinois’ Bureau of Mines
and Minerals, in which he affirms Illinois’ total commitment to
prime farmland reclamation and a 1982 grandfathering sunset.
STATEMENT TO SENATOR CHARLES PERCY
FROM THE ILLINOIS DEPARTMENT OF MINES AND
MINERALS ON PRIME FARMLAND
AND CROPLAND RECLAMATION
The State of Illinois has consistently and _ historically
advocated quality reclamation. We have every intention of
promulgating and enforcing a law and regulations which carry
out the requirements of P.L. 95-87. Two specific examples will
prove that Illinois had the goal of good reclamation before the
federal law was passed, and that we continue to impose
requirements in excess of the federal law to insure retention of
agricultural capability on the maximum number of acres.
First, in 1976, Illinois enacted Rule 1104, developed by
soils scientists of international reputation from the University of
Illinois and other Illinois schools. Rule 1104 has been adopted
by the Illinois legislature for the permanent program, even
though the federal law doesn’t require it. During the per-
manent program, under Rule 1104 standards, operators will be
required to return to rowcrop capability, land which does not
meet the definition of prime farmland, but which is nevertheless
capable of producing rowcrops. By contrast, the federal
regulations merely require that such land be revegetated. Since
there are approximately 1,023,181 acres of land in Illinois
mining counties which would be subject to Rule 1104 standards
but not to prime farmland requirements, this means that Illinois
would require a return to rowcrop capability for over one
million acres more than would federal law alone.
Second, the State of Illinois was the originator of the idea
to limit prime farmland grandfathering to 1982. Such a
limitation has been placed on every single exemption granted
by Illinois despite the fact that no time limitation is contained in
the Federal Act or has ever been contained in adopted federal
regulations. However, OSM has adopted this idea and is now
proposing it as part of its proposed exemption regulations.
To date, Illinois has issued permits for approximately
2,700 acres upon which a prime farmland restoration plan has
been submitted and approved. The federal prime farmland
standards will apply. More acreage will be subject to these
standards as time goes on, since Illinois has always interpreted
the grandfather clause as a transition exemption only, as is
obvious from the 1982 limitation. Of the acreage grand- .
fathered by Illinois under the-federal Act and regulations, only
about 12,000 acres of it will actually be mined. Rule 1104
standards apply to grandfathered land. It’s time that the facts
be made known concerning the reclamation which will be
required of grandfathered land in Illinois. The exempted land
will have a minimum of eight inches of topsoil saved and
replaced. Under the federal prime farmland rules, only a
minimum of six inches would have to be saved and replaced.
The entire rooting media of exempted land will be 4 deep.
Under the federal prime farmland rules, the rooting media
would be 4’ also, unless there was a root inhibiting zone, or
fragipan, within the premining surface 4’, in which case the
prime farmland rules only require rooting media to the depth of
the premining fragipan. Finally, the exempted land will have a
¢t
8a
rooting media of a mixture of the B-C horizon. Under the
prime farmland rules, a mixture of the B-C horizon is specifi-
cally allowed. The exempted land will be released from bond
only when capability to achieve 90 percent of premining yield is
shown.
‘ Illinois is adopting the prime farmland standards and will
enforce them, because there is a negligible difference between
those standards and Rule 1104 standards, except for the many
acres of fragipan soils in Southern Illinois. However, we will
continue to apply Rule 1104 standards to restore the rowcrop
capable land that is left out of the federal prime farmland
requirements.
DOUGLAS DOWNING
Supervisor, Illinois Department
of Mines and Minerals
FACT SHEET: GRANDFATHERING IN ILLINOIS
(Approximate acreage )
Total Acres Grandfathered' To Date (8/80) 29,903.
Prime Farmland Grandfathered, 16,059.
Prime Farmland Grandfathered which is planned to be mined,
12,143.
Federal Prime Farmland Restoration Plan—Approvals to Date
(approximate acreage ), 2,700.
Grandfathered land—1104 Reclamation Standards, Minimum
of 8” topsoil salvaged Root Zone 4’ deep.
1 For convenience, exemptions are requested and granted or
denied for entire permit areas, without specifically delineating prime
farmland soils within the permit areas. In other words, this figure
represents both prime farmland and non-prime farmland.
9a
Federal Prime Farmland Reclamation Standards, Minimum of
6” topsoil salvaged. Root zone 4 deep, or less if root
inhibiting zone, in which case root zone restored only to
depth where premining root inhibiting zone existed.
Root zone of B/C mixture. Texture requirements for root zone:
Maximum of 40% clay content.
Root zone B over C or B/C mixture. None.
Prime Farmland and Rule 1104 Land, Illinois Mining Counties
(Approximate Acreage ):
Prime Farmland, 2,049,800.
Row Crop in Excess of Prime Farmland, 1,025,181.
Prime Farmland Plus Row Crop, 3,074,981.
* * *
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