Amicus Brief — Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.

No. 79-1538

EV TT ASV ES 4 O° 0 105.) GD: A

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

Cecit D. ANDRUS, SECRETARY OF THE INTERIOR,

Appellant,

Vv.

VIRGINIA SURFACE MINING AND RECLAMATION

ASSOCIATION, INC., ET AL.,

Appellees.

On Appeal from the United States District Court

Western District of Virginia

BRIEF OF AMICUS CURIAE PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLEES

RONALD A. ZUMBRUN

Pacific Legal Foundation

455 Capitol Mall, Suite 600

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

COUNSEL OF RECORD

EILEEN B. WHITE

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Amicus Curiae

Pacific Legal Foundation

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED....................... il

INTEREST OF AMICUS CURIAE oeccccccccocoooo l

SUMMARY OF ARGUMENT ..uw. >

Sea tinal ee ee RO Ce 5

I. THE SURFACE MINING CONTROL AND

RECLAMATION ACT VIOLATES THE

TENTH AMENDMENT BY USURPING THE

STATES’ TRADITIONAL POWER’ TO

REGULATE LAND USE 000 5

Il. THE SURFACE MINING CONTROL AND

RECLAMATION ACT REDUCES THE

VALUE OF APPELLEES’ LAND SO

SUBSTANTIALLY AS TO CONSTITUTE A

TAKING OF PRIVATE PROPERTY,

REQUIRING THE PAYMENT OF JUST

COMPENSATION oc ices 9

IN PROPERTY AGAINST GOVERN-

MENT INTRUSION IS A FUNDAMEN.-

TAL PRECEPT OF THE FEDERAL

| SR RURMTIES THC 9

RECLAMATION ACT'S LAND USE

PROVISIONS CONSTITUTE A TAKING 10

li

TABLE OF AUTHORITIES CITED

CASES

Armstrong v. United States, 364 U.S. 40 (1960).........

Boston Chamber of Commerce v. Boston, 217 U.S.

a scsbutinepaneiesune

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) .........

Goldblatt v. Hempstead, 369 U.S. 590 (1962)...

Hadacheck v. Sebastian, 239 U.S. 394 (1915) ccccseess-s. |

Kaiser Aetna v. United States, 444 U.S. 164 (1979)...

Kansas v. Colorado, 206 U.S. 46 (1906) ou...

Keller v. United States, 213 U.S. 138 (1909) wo...

Lynch v. Household Finance Corp., 405 U.S. 538

I iileh iacdnctsntsnbanpnisncdieaeverescnanssencasseess

dina cesucetbdodehivessnncientnsepieinontsensesdss

Penn Central Transportation Co. v. City of New

I RM IE © BUTT D rsccvsscevecervssccccssocessscccescces

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

anise ndeindacnsnntebnerecsineacesnoteteoses

Sinnot v. Davenport, 63 U.S. 227 (1859) ou...

Trustees of Dartmouth College v. Woodward, 17

Re Me WEEE D DED © BBED),.cccncccccosccecccoosececeseecsossese

United Siaies v. Dewitt, 76 U.S. 41 (1869) ww.

United States v. General Motors Corp., 323 U.S. 373

scl ik sien dehsanesbtssunennssinsnaaostsveecinishinenens

Page

iii

Village of Belle Terre v. Borass, 416 U.S. 1 (1974)...

Village of Euclid v. Ambler Realty Company, 272

A A OUI Bic diessecciss cithietcasagldemcicccadigaees oh cao

CONSTITUTIONAL PROVISIONS

United States Constitution

STATUTES

‘Surface Mining Control and Reclamation Act of

1977, Pub. L. No. 95-87, 30 U.S.C. §§ 1201, et Seq.

ed cle | ) Tae ET

Br) We Rs ND sca sechncesssnininddccceacnins!

MISCELLANEOUS

Sackman, The Impact of Zoning and Eminent Do-

main Upon Each Other, 1971 Institute on Planning

Zoning and Eminent Domain 107............................

Siegan, Economic Liberties and the Constitution

CP inivchachaibbusbieiccinoiincsiiiaeeli eet eae ct

Page

9

6

passim

5,9,15

9

7

7

passim

passim

passim

6

No. 79-1538

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

CeciL D. ANDRUS, SECRETARY OF THE INTERIOR,

Appellant,

we

VIRGINIA SURFACE MINING AND RECLAMATION

ASSOCIATION, INC., ET AL.,

Appellees.

On Appeal from the United States District Court

Western District of Virginia

BRIEF OF AMICUS CURIAE PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLEES

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) respectfully submits this

brief in support of appellees Virginia Surface Mining and

Reclamation Association and the Commonwealth of Virginia

pursuant to Supreme Court Rule No. 36. Consent to the filing

of this brief has been granted by counsel for all parties. Copies

of these letters have been submitted to the Clerk of this Court.

PLF is a nonprofit, tax-exempt organization with offices in

Sacramento, California, and Washington, D.C., existing for the

purpose of engaging in litigation in matters affecting the broad

public interest. Policy for PLF is established by an independent

Board of Trustees composed of concerned citizens. The Board

evaluates the merits of any contemplated legal action and

2

authorizes such legal action only where PLF’s position has

broad support within the general community. The PLF Board

has authorized the filing of this brief.

The government is appealing from the decision of the

United States District Court of Virginia, Western District,

which held, inter alia, that: (1) Sections 515(d) and (e) of the

Surface Mining Control and Reclamation Act of 19771 (Act),

which prescribe certain reclamation performance standards for

surface coal mining operations conducted on steep slopes,

violate the Tenth Amendment; and (2) Sections 515(d) and

(e) and Section 5222 of the Act take private property without

just compensation in violation of the Fifth Amendment. PLF

will address those issues, showing that the District Court’s

holdings were correct and should be upheld.

PLF’s concern in this proceeding is that the federal

government not interfere with constitutionally guaranteed pri-

vate property rights and the traditional regulation of those

property rights by the states rather than by the federal govern-

ment. PLF is also interested in insuring that when the federal

government does take property, it pays just compensation as

required by the Constitution.

PLF contends that when a law diminishes the value of

property to the point where it becomes virtually worthless, then

a compensatory taking has occurred. In this case, appellees’

property value is so regulated that there is no remaining

reasonably beneficial use. The Act caused this drastic dimin-

ution by preventing the appellees from taking advantage of the

‘abundant coal deposits that lie just under the surface of

appellees’ land. The impact extends, however, beyond the

landowner to the public seeking affordable energy sources.

Specifically, Sections 515(d) and (e) of the Act require ap-

pellees to restore the land to its approximate original contours

after strip-mining, a task which, from an economic standpoint,

makes it totally infeasible to mine the coal. In effect, the law

controls surface mining by preventing businesses from engaging

130 U.S.C. § 1265(d) and (e).

230 U.S.C. § 1272(e).

3

in it. PLF agrees with the District Court that the drastic

decrease in appellees’ land value caused by the Act constitutes a

taking for which just compensation must be paid in accordance

with the Fifth Amendment.

The provision requiring return to approximate originai

contours was drafted in disregard of plain common sense. For

example, if a community determines that some of the contours

resulting from surface mining serve a socially useful purpose,

this law does not permit those contours to remain. Instead, they

must be restored. In many Appalachian towns where leveled

land is at a premium, the prohibition against keeping leveled

ground in that condition creates serious problems. The District

Court found that steep-slope land restored to its approximate

original contour is worth between $5.00 and $75.00 per acre;

whereas if it were leveled, it would be worth between $5,000

and $300,000 per acre. The government’s solution to the Act’s

requirement that hillsides be restored (despite apparent local

preferences to the contrary) is, at least, novel. The government

argues that the Act does not prevent land from eventually

remaining with the contours created by surface mining. In

order to stay within the bounds of the law, one merely has to

restore the contours of the land—thereby gaining com-

pliance—and then bulldoze it a second time.3 Besides creating a

totally absurd result, that solution Causes considerable economic

waste.

Furthermore, notwithstanding the provisions of the Act,

other federal regulations have Surface mining in a regulatory

Stranglehold. The numerous regulations (e.g., Clean Air Act

and Water Pollution Control Act) provide ample federal

control over how surface mining is conducted while stil] protect-

ing the environment. The Act’s Provisions merely add to the

regulatory morass which already makes it difficult to conduct

surface coal mining operations.

This problem of regulatory overkill is especially counter-

Productive to the public interest where Surface coal mining is

3 Brief for the Secretary of the Interior at 35, 53.

4

concerned. Surface mining of domestic coal reserves, such as

those located in Virginia, provides one of the best solutions to

one of the gravest problems facing America—namely, its great

dependence on foreign sources of energy. Yet, even though the

coal produced from surface mines would provide a rapid and

cheap way to decrease that dependence, Sections 515(d) and

(e) and Section 522 of the Act not only stifle, but virtually shut

off that method of domestic energy production.

Finally, PLF strongly supports environmental protection.

PLF does not, however, believe that the goal of restoring a

pristine environment should be sought without regard to the

costs. Instead, PLF contends that there should be a balance

between environmental protection and the economic growth

required to maintain our civilized society. Requiring steep

slopes to be returned to their approximate original contours

does not strike a proper balance because it ignores several key

considerations: (1) more productive use can often be made of

level or gently sloping land than of steeply sloping land; (2)

requiring steep slopes to be restored often ignores the wishes of

local communities that require more level areas to sustain

growth; (3) the arbitrary imposition of requiring that surface-

mined land be returned to its approximate original contour can

have environmentally degrading effects in certain circum-

stances; (4) requiring a return to the original contour freezes

out small businesses which cannot afford the expensive restora-

tions, thus lessening competition, the foundation of our free

enterprise system; (5) prohibiting surface mining puts miners

out of work; (6) limiting coal production in this manner raises

the cost of coal to consumers; and (7) limiting the production

of coal—a plentiful domestic energy resource—is counter-

productive to the effort to decrease our dependence on foreign

supplies of energy.

SUMMARY OF ARGUMENT

The first question that PLF will address is whether the

Commonwealth of Virginia and its subdivisions’ control over

5

the traditional state and local power to regulate land use has

been usurped by the federal government in violation of the

Tenth Amendment. Specifically, Sections 515(d) and (e) of

the Act unlawfully infringe on states’ rights by stripping the

states of their power to regulate land use where surface mining

taxes place. The District Court correctly held that Congress did

indeed violate Tenth Amendment limitations on federal activi-

ties by enacting Sections 515(d) and (e) of the Act. PLF urges

that the Court affirm that decision.

PLF will also argue that Sections SIS5(d) and (e) and

Section 522 of the Act have rendered the appellees’ land

virtually worthless, constituting a taking requiring the payment

of just compensation. The Act’s Provisions require appellees’

Steep slopes to be returned to their approximate original

contour after surface mining and prohibits surface mining in

certain areas altogether. Compliance with these provisions,

however, destroys the value of appellees’ property by making it

economically infeasible, and in some instances simply unlawful

to mine the abundant mineral wealth. 5

ARGUMENT

I

THE SURFACE MINING CONTROL AND

RECLAMATION ACT VIOLATES THE TENTH

AMENDMENT BY USURPING THE STATES’

TRADITIONAL POWER TO REGULATE LAND USE

The basic structure of government contained in the United

States Constitution is that of a federal government of limited

Powers governing a union of states which possess the remainde:

of governmental power. This concept is expressed most clearly

in the Tenth Amendment, which States: “The powers not

delegated to the United States by the Constitution, nor prohibit-

ed by it to the States are reserved to the States respectively, or

to the people.” Thus, the federal government cannot validly

exercise powers other than those expressly granted to it.

6

It is well established that the Constitution does not grant to

the federal government the police power. (The police power is

the governmental power to subject individuals to reasonable

regulations in order to achieve such governmental objectives as

the public health, safety, and welfare. Goldblatt v. Hempstead,

369 U.S. 590 (1962).) Thus, Congress may not enact police

power regulations to operate within the territorial limits of a

state. United States v. Dewitt, 76 U.S. 41 (1869). The police

powers are instead reserved to the s.ates. Keller v. United

States, 213 U.S. 138 (1909); Sinnot v. Davenport, 63 U.S. 227

(1859). Their legislatures delegate the police power to local

governing bodies, and it is used to support various forms of

state and local regulation.

Land use regulation is one of the traditional police powers

exercised by the states and their political subdivisions. Village

of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926).

Indeed, it is an essential state function because it allows the

States to balance environmental protection with the many types

of activities upon which their economies are based. This Court

has long held that each state has full jurisdiction to regulate the

land within its borders, without federal interference. For

example, in Kansas v. Colorado, 206 U.S. 46 (1906), Kansas

sued Colorado for diverting the waters of the Arkansas River

for the irrigation of lands in Colorado. The United States

intervened, claiming a right to control the waters of the river to

aid in reclamation of federally owned arid lands. It argued that

it had the right to use the waters pursuant to the Reclamation

Act, 43 U.S.C. §§ 371, et seg. The Court, in dismissing the

United States’ claim, relied upon Article IV, Section 3, clause 2,

of the Constitution which provides that Congress has the power

to make all necessary rules and regulations regarding its

property. The Court held that the provision limits Congress to

exercising its power over property belonging to the United

States, and does not allow for any legislative control over the

property of the individual states.

This Court should reaffirm the holding of Kansas here and

find that Congress cannot exercise legislative control over land

that it does not own in individual states. In promulgating the

7

Act, Congress decided that the regulation of surface mining and

reclamation basically belongs to the states because of the

differences in “terrain, climate, biologic, chemical and other

physical conditions in areas subject to mining operations.” 30

U.S.C. § 1201(f). However, the states have no choice but to

adopt the federal standards as their own or else hand over total

control of surface coal mining to the federal government.4

While the Clean Air Act and the Federal Water Pollution

Control Act have similar requirements, an important difference

is that air and water pollution are carried interstate. Land,

however, is unique in that it is permanently situated within a

State’s boundaries. Indeed, without that characteristic, the

definition of “boundaries” would be rendered meaningless.

Thus, the Act, by forcing states to adopt the federal regulations

as their own (if the states prefer not to engage in that charade,

the federal government will simply supply its own regulations )

denies the states their traditional broad discretion to legislate

pursuant to the police power “‘so as to increase the industries of

the state, develop its resources, and add to its wealth and

prosperity.” Keller, 213 U.S. at 145.

In addition to the Act being unconstitutional, its provisions

disregard totally the economic realities of the land. The Act’s

Provisions are impossible for appellees to comply with and still

Stay in business. For example, the Act requires that steep slopes

shall be returned to their approximate original contour after

Surface mining. Ninety-five percent of Virginia’s strippable

coal is located on slopes in excess of 20 degrees. To return

those slopes to their Original contour is such an expensive

_ procedure that to do so gives mine operators the choice of either

operating at a loss or setting the price of the coal at a level

which makes it noncompetitive. Either way the result is the

same for surface mine operators—bankruptcy. Apparently

Congress decided to sacrifice the livelihood of persons involved

in surface coal mining and also the energy that coal would

produce for America in favor of turning appellees’ land into a

“ Congress provided that each state must adopt mandatory standards as

determined by the Secretary of the Interior if it wishes to continue to regulate

land used for surface coal mining. 30 U.S.C. § 1253.

8

hill museum. Moreover, as the District Court recognized, since

so much of Virginia’s terrain is mountainous, a great need exists

for level land to build schools, airports, industries, recreation

areas, shopping centers, and for farming.

Another provision of the Act prohibits surface coal mining

near roads, public buildings, schools, churches, public parks,

community buildings, and cemeteries. 30 U.S.C. § 1272(e).

This is a biatant example of the federal government exercising

the police power to regulate land use. It is also an example of

wrongful meddling by the federal government with an integral

state function—namely, the right to decide how its land shall be

used. This Court has firmly held that such federal involvement

with functions which are integral to state governments is

unconstitutional. In National League of Cities v. Usery, 426

U.S. 833 (1976), at issue similarly was the constitutionality of a

federal statute which regulated an integral state function.

Specifically, the statute was the Fair Labor Standards Act

which extended minimum wage and maximum hour provisions

to almost all employees of the states and their political subdivi-

sions. This Court held that Congress may not exercise its power

to regulate commerce so as to force directly upon the states its

choices as to how essential decisions regarding the conduct of

integral governmental functions are to be made. 426 USS. at

851.

Governmental functions such as fire prevention, police

protection, sanitation, public health, and parks and recreation

are among those the Court considered to be integral govern-

_mental functions best left to the states. However, this Court

also noted that those examples are not an exhaustive catalogue

of “activities which are well within the area of traditional

operations of state and local governments.” National League of

Cities, 426 U.S. at 851 n.16. PLF believes that land use

regulation is rightfully one of those traditional functions belon-

ging to the states. Certainly land use regulation has traditio-

nally been, and still is, a basic and essential governmental

function of the states and their political subdivisions. 426 U.S.

at 855. Indeed, if this Court were to make a finding that land

9

use regulation is not an integral state function, it would then be

difficult to conceive of a basis upon which any other functions

would still be reserved to the states.

THE SURFACE MINING CONTROL AND RECLAMA-

TION ACT REDUCES THE VALUE OF APPELLEES’

LAND SO SUBSTANTIALLY AS TO CONSTITUTE A

TAKING OF PRIVATE PROPERTY, REQUIRING THE

PAYMENT OF JUST COMPENSATION

A. Protection of Personal Rights In Property Against Govern-

ment Intrusion Is a Fundamental Precept of the Federal

Constitution

American political scientists and legal scholars have point-

ed to protection of personal rights in property as the fundamen-

tal motivation for adopting the Constitution.5 The express

constitutional restrictions on governmental interference with

private property have been augmented by judicial doctrine.6

This Court has stated unambiguously that the Fifth Amend-

ment’s guarantee that private property shall not be taken for

public use without just compensation (applicable to the states

through the Fourteenth Amendment) operates as a limitation

on the exercise of the police power. Goldblatt, 369 US. 590;

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

5 See B. Siegan, Economic Liberties and the Constitution at chs. 2-4

_ (1980).

6 For example, nineteenth century jurists broadly construed the Contract

clause of the United States Constitution, Article I, Section 10, as a means of

protecting vested property rights against unjust government interference.

E.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810): Trustees of Dartmouth

College v. Woodward, 17 US. (4 Wheat) 518 (1819).

10

B. The General Law Regarding Eminent Domain 2nd the

Police Power Demonstrate that the Surface Mining Con-

trol and Reclamation Act’s Land Use Provisions Constitute

a Taking

Even assuming, arguendo, that the Act does not usurp the

states’ traditional police power over regulation of land use, this

Court should still affirm the District Court’s holding that the Act

so diminishes the economic value of appellees’ land as to

amount to a taking of property without compensation in

violation of the Fifth Amendment to the United States Con-

stitution. The Fifth Amendment forbids federal actions which

abridge property rights, stating that:

“[NJo person shall...be deprived of life, liberty or

property, without due process of law; nor shall private

property be taken for public use, without just com-

pensation.”

It is well settled by this Court that under the Fifth

Amendment, property owners have a personal right to the use

and enjoyment of their property without unlawful deprivation.

Thus, the Court held:

“{A] fundamental interdependence exists between the

personal right to liberty and the personal right in property.

Neither could have meaning without the other.” Lynch v.

Household Finance Corp., 405 U.S. 538, 552 (1972).

This includes the right to possess, use, and dispose of property.

United States v. General Motors Corp., 323 U.S. 373, 377-78

(1945).

Governmental restrictions on the unfettered use of one’s

property have occurred traditionally in either one of two

generally recognized ways. The first is through the power of

eminent domain, in which private property is taken by the

government to further a public purpose. When such takings

occur, the landowner is constitutionally entitled to just com-

pensation, and title passes to the government. See Boston

Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910).

1]

The second method by which the government restricts

private land use is through the exercise of the police power.’

This method arose initially out of attempts by the government

to curb noxious activities by the landowner that constituted a

nuisance. See Hadacheck y. Sebastian, 239 U.S. 394 (1915).

However the police power has been expanded to include

regulation of other than noxious uses. See, e.g., Village of Belle

Terre v. Boraas, 416 US. | (1974) (upholding zoning ordi-

nance which limited the occupancy of one-family dwellings to

traditional families or to groups of not more than two unrelated

persons). However, constitutional limits on the exercise of the

police power do exist: such power cannot be exercised in a

manner which imposes either arbitrary, discriminatory, or

otherwise unreasonable restrictions on the use of one’s private

property. Nor can it impose restrictions which eliminate the

possibility of making any reasonably beneficial use of the

property.

The instant case presents the issue of whether a federal

Statute which so regulates appellees’ land as to render it

valueless constitutes an unlawful taking of appellees’ property

in violation of the Fifth Amendment. In an inverse con-

demnation case squarely on point, Pennsylvania Coal Co., 260

U.S. 393, this Court held that a restriction on the right to mine

coal amounted to a taking of Private property requiring the

payment of just compensation. The Court acknowledged that

the state was exercising its police power in order to promote

public safety when it prohibited the extraction of coal in a way

that caused subsidence of the surface. However, the Court held

that the regulation was too restrictive to be upheld, pointing out

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 paying for the change.” Pennsylvania

’ For a discussion of the distinction between eminent domain and the

police power, see Sackman, The Impact of Zoning and Eminent Domain Upon

Each Other, 1971 Institute on Planning, Zoning and Eminent Domain 107,

110-111.

12

Coal Co., 260 U.S. at 416. Likewise, this case is before the

Court for a determination that restrictions on mining are

excessive, even though they were enacted to promote public

safety.

Sections 515(d) and (e) require reclamation of surface

mined lands, but those provisions do so in a manner which

prevents Virginia surface miners from mining because the costs

of reclaiming lands in accordance with the Act are prohibitive.

Section 522 goes a step further by denying the landowners the

right to decide whether or not to mine their land. It specifically

prohibits (rather than regulates) surface mining on certain

specified lands. Thus, this case, so analogous to the facts in

Pennsylvania Coal Co., deserves the same outcome—namely,

invalidation of the unconstitutional provisions until such time as

just compensation is paid.

Moreover, this Court has held that the right to mine coal is

valuable because it can be exercised for profit. Thus, “to make

it commercially impracticable to mine certain coal has very

nearly the same effect for constitutional purposes as appropria-

ting it or destroying it.” Pennsylvania Coal Co., 260 U.S. at 414.

The District Court found, after a 13-day trial, that the Act

makes it commercially impracticable to surface mine coal in

Virginia. This Court should accept the District Court’s findings

and apply the holding in Pennsylvania Coal Co. to this case to

find that Sections 515(d) and (e) and Section 522 of the Act

constitute a taking.

This Court has stated that it is proceeding on a case by case

‘basis in inverse condemnation cases to determine when a

compensable taking has occurred. Penn Central Transportation

Co. v. City of New York, 438 U.S. 104 (1978). In Penn Central

Transportation Co., Penn Central was prohibited from devel-

oping the air space above the Grand Central Terminal pursuant

to New York City’s Landmarks Preservation Law. The Court,

in holding that there was not a taking, stated that Penn Central

had not been denied all reasonable use of the property.

By contrast, appellees are deprived of virtually all reason-

able use of their property. The only reasonable use for

appellees’ land is to remove and utilize the mineral wealth by

13

surface mining it. However, surface mining triggers the recla-

mation provisions of the Act which make it economic suicide to

proceed. Furthermore, the Act prohibits all surface mining in

certain specified areas. Thus, appellees cannot settle simply for

less profit as the plaintiff in Penn Central Transportation Co.

did. (Penn Central still maintained a profit from Grand

Central Terminal.) Instead, appellees’ land, so rich in mineral

wealth, is virtually valueless since the coal is marketable only

when removed from the ground.

Furthermore, in Kaiser Aetna vy. United States, 444 US.

164 (1979), this Court recently expanded its dicta from Penn

Central Transportation Co. that a state Statute which substan-

tially furthers public policies may so frustrate distinct

investment-backed expectations as to amount to a “taking.” In

Kaiser Aetna, a private developer in Hawaii converted an

inland pond contiguous to a navigable bay into a marina by

dredge and fill operations that connected the pond to the bay.

The United States Army Corps of Engineers (Corps) allowed

the construction of the marina without requiring a permit.

Later, the Corps contended that the developer was precluded

from denying the public access to the pond because, as a result

of the improvements, the pond had become a navigable water

of the United States. This Court held that the former pond

constituted navigable water subject to federal regulatory au-

thority. However, the Court concluded that the Fifth Amend-

ment’s Taking Clause precluded the federal government from

creating a public right of access to the pond, without com-

pensating the owner.

In examining the “taking” question, the Court identified

several factors of particular significance—the economic impact

of the regulation, its interference with reasonable investment-

backed expectations, and the character of the governmental

action. By applying those factors to appellees’ situation, it is

clear that their investment-backed expectations are thoroughly

dashed by the Act’s provisions and therefore a taking has

occurred. Due to the Act’s reclamation provisions and total

prohibitions from mining in certain areas, appellees are unable

to mine coal profitably, if at all. The severe economic impact of

14

the Act upon mine operators was shown unquestionably during

the District Court trial. Indeed, the Act is so restrictive that it

goes beyond the legitimate exercise of the police power to

regulate for the public health, safety, and welfare. Thus, it

requires that just compensation be paid to appellees or that the

Act be invalidated. As the Court has previously announced, the

Just Compensation Clause of the Fifth Amendment is intended

to

“bar Government from forcing some people alone to bear

public burdens which, in all fairness and justice, should be

borne by the public as a whole.” Armstrong v. United

States, 364 U.S. 40, 49 (1960).

15

CONCLUSION

PLF respectfully submits that the District Court properly

found that: (1) Sections 515(d) and (e) of the Surface Mining

Control and Reclamation Act violate the Tenth Amendment to

the Constitution by depriving the states of their traditional

power to regulate their land, and thus their economy; and (2)

Sections 515(d) and ( €) and Section 522 of the Act diminish

the economic value of appellees’ coal bearing land so drasti-

cally as to amount to a taking of property without just

compensation in violation of the Fifth Amendment to the

Constitution. Thus, the District Court’s ruling that those

sections are invalid should be upheld. Such a ruling would

allow a sharp increase in America’s use of domestic sources of

energy and, in turn, decrease our reliance on foreign supplies

which are subject to interruption, cutoff, and rapidly spiraling

prices. Increasing our energy self-sufficiency will benefit all

segments of American society; it will help our balance of

payments, lessen inflationary pressures, decrease the rate of

unemployment, and make our country more secure strate-

gically.

Respectfully submitted,

RONALD A. ZUMBRUN

Pacific Legal Foundation

455 Capitol Mall, Suite 600

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MoMBOISSE

COUNSEL OF RECORD

EILEEN B. WHITE

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Amicus Curiae

Pacific Legal Foundation

December, 1980