Jurisdictional Statement — Hodel v. Indiana

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Iu the Supreme Court of the United States

OCTOBER TERM, 1979

CrecIL D. ANDRUS, SECRETARY OF THE INTERIOR,

ET AL., APPELLANTS

Vv.

STATE OF INDIANA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

JURISDICTIONAL STATEMENT

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

LouIS F. CLAIBORNE

Deputy Solicitor General

PETER BUSCEMI

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

MICHAEL A. McCorD

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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Iu the Supreme Cont of the United States

OCTOBER TERM, 1979

No.

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,

ET AL.,* APPELLANTS

Vv.

STATE OF INDIANA, ET AL.**

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

JURISDICTIONAL STATEMENT

QUESTIONS PRESENTED

The principal regulatory and enforcement pro-

visions of the Surface Mining Control and Reclama-

tion Act of 1977, 30 U.S.C. (Supp. I) 1201 et seq.,

* Other defendants below and appellants in this Court are

the Director of the Office of Surface Mining Reclamation

and Enforcement, the Office of Surface Mining Reclamation

and Enforcement, the United States Department of the In-

terior and the United States of America.

** Other plaintiffs below and appellees here are the Gov-

ernor of Indiana, the Director of the Indiana Department of

Natural Resources, the Indiana Department of Natural Re-

sources, the Indiana Coal Association, Meadowlark Farms,

Inc., Amax Coal Company, Peabody Coal Company, and John

A. Conlon.

(I)

are contained in Title V of the statute, 30 U.S.C.

(Supp. I) 1251-1279. Among the more important

provisions in Title V are those dealing with surface

mining on prime farmlands, the handling and re-

placement of topsoil during and after surface mining

operations, the restoration of mined lands to their

approximate original contour, the designation of cer-

tain lands as unsuitable for surface mining, and the

pre-mining administrative review of proposed post-

mining land uses. The questions presented in this

case are:

1. Whether the aforementioned provisions in Title

V of the Surface Mining Act exceed Congress’ powers

under the Commerce Clause of Article I, Section 8,

of the Constitution.

2. Whether the same provisions violate the Tenth

Amendment.

3. Whether the “prime farmland” and approxi-

mate original contour provisions in Title V of the

Surface Mining Act violate the Due Process Clause

of the Fifth Amendment because they are arbitrary

and capricious or impermissibly discriminate among

coal mine operators in different states.

4, Whether the provisions in Title V concerning

the reclamation of prime farmlands after surface

mining and the designation of certain lands as un-

suitable for surface mining take private property

without just compensation in violation of the Fifth

Amendment.

5. Whether Section 518(c) of the Surface Mining

Act, 30 U.S.C. (Supp. I) 1268(c), violates the Due

Process Clause of the Fifth Amendment by requiring

that proposed civil penalties be paid into an interest-

bearing escrow account Ddefore full administrative

review of such proposed penalties may be obtained.

TABLE OF CONTENTS

Page

I TN i a sal cee rcedaereneneapeeenpiil 1

(TL SESE RS AE PERN TGS AS Shah CEE BP PEAR Ore ANN 1

Constitutional and statutory provisions involved .......... 1

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CEE RES AL ENS Aaah OM DE eT NaI onD la

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OES hati iasesicicsstn coesccenteagindstseiuhaasiicoutl svenpnintigiekcalets 50a

EAT AR Anat Nc mn ee eC a 52a

TB EEE rile RAEI NO NOTRE ERE 54a

A TEE tie Peto pee RE Wis OLE PF EA Se CIN hin, 55a

TABLE OF AUTHORITIES

Cases:

Currin V. Wallace, 806 U.S. 1 .........--.0...0..ccceeecce-e.s0e0 12

Duke Power Co. Vv. Carolina Environmental Study

a I RN i ea cceacdes 8,11

Katzenbach v. McClung, 879 U.S. 294 ..................-. 9-10

Polish Alliance vy. Labor Board, 322 U.S. 648 ........ 9

Secretary of Agriculture v. Central Roig Refining

Co., 888 U.S. 604 ........... ET tne ER 12

Star Coal Co. v. Andrus, No. 79-171-2 (S.D. Iowa

Feb. 13, 1980), pending on appeal, No. 80-49 .... 1, 4,8

Usery V. Turner Elkorn Mining Co., 428 U.S. 1 .... 11

Vance V. Bradley, 440 U.S. 98 ..............0.0--.ccccceeseeeeee 11

Virginia Surface Mining and Reclamation Ass’n V.

Andrus, 483 F. Supp. 425, pending on appeal,

Nos. 79-1538, 79-1567, 79-1596 ................ 1, 3, 4, 7, 8, 13

Wickard ¥. Filburn, 817 U.S. 111 .............................. 9

Constitution, statutes and regulation:

United States Constitution:

Art. I, Section 8 (Commerce Clause) ..1, 5, 9, 10, 55a

(III)

Constitution, statutes ang regulation—Continued Page

PN SEL CLIET BEA TAN De TRO 5

Re aS TE cee Oe 1, 5, 10, 55a

eT aa saescettienconceciccscenssd 6, 8, 12

Just Compensation Clause ..................-.---- 6,7

AE TAINS: seccicscinndascnstcdoanesbtsinnsaes 1, 6, 7, 8, 55a

National Environmental Policy Act, 42 U.S.C.

Sg Hi I ited atic inna amseioiralcaaewsabedabigtcgiiinn 5

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. (Supp. I) 1201 et seq. ................ 1

Section 508, 80 U.S.C. 1258.............................. 3-4, 56a

Section 507(b), 80 U.S.C. 1257(b) -................. 55a

Section 508, 30 U.S.C. 1268 ..........................000 3

Section 508(a), 80 U.S.C. 1258(a) ...............-.. 56a

Section 610, 30 U.S.C. 1260 ....................--.2-0se-- 57a

Section 510(d) (1), 30 U.S.C. 1260(d) (1) -... 2

Section 515(b), 30 U.S.C. 1265(b) -................. 58a

Section 515(b) (3), 30 U.S.C. 1265(b) (3) ..8, 9, 10,

Section 515(b) (5), 30 U.S.C. 1265(b) (5) ... 3,9

Section 515(b) (7), 30 U.S.C. 1265(b) (7) -... 2

Section 618, 80 U.S.C. 1266 ............ccccccodececeeeeee 8,9

Section 518(c), 30 U.S.C. 1268(c) .......... 4, 7, 8, 68a

Section 519(c), 80 U.S.C. 1269(c) .................. 63a

Section 519(c) (2), 30 U.S.C. 1269(c) (2) ... 2,8

Section 622, 80 U.S.C. 1272 .........2...-cccccs-200 3, 5, 6, 65a

Section 522(a), 80 U.S.C. 1272(a) .................. 3,9

Section 522(c), 80 U.S.C. 1272(c) .................. 3,9

Section 522(d), 30 U.S.C. 1272(d) .................. 3,9

Section 522(e), 30 U.S.C. 1272(e) .................. 6

Section 5622(e) (4), 30 U.S.C. 1272(e) (4) -.... 4, 6,9

Section 522(e) (5), 30 U.S.C. 1272(e) (5) -..... 4,6,9

Section 701(20), 30 U.S.C. 1291(20) —............ 2, 68a

44 Fed. Reg. 15342 (1979) (to be codified in 30

a diseieniasiied bie 6

Miscellaneous:

H.R. Rep. No. 95-218, 95th Cong., Ist Sess.

I a aebeiaielios 10

pe me Ry 5 Rae cn ee 10

OPINION BELOW

The opinion of. the district court (App. A, infra,

la-44a) is not yet reported.

JURISDICTION

The final order and judgment of the district court

(App. B, infra, 45a-49a) was entered on June 10,

1980. The Secretary of the Interior filed a notice of

appeal to this Court on June 16, 1980 (App. C, infra,

50a-51a). The jurisdiction of this Court is invoked

under 28 U.S.C. 1252.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 8, of the United States Constitu-

tion, the Fifth and Tenth Amendments to the Con-

stitution, and the relevant portions of the Surface

Mining Control and Reclamation Act of 1977, 30

U.S.C. (Supp. I) 1201 et seg., are reprinted in App.

F, infra, 55a-68a.

STATEMENT

1. Like Virginia Surface Mining and Reclamation

Ass’n v. Andrus, 483 F. Supp. 425 (W.D. Va.

1980), pending on appeal, Nos. 79-1538, 79-1567,

and 79-1596, and Star Coal Co. v. Andrus, No. 79-

171-2 (S.D. Iowa Feb. 13, 1980), pending on appeal,

No. 80-49, this case involves a broad constitutional

challenge to numerous important provisions of the

Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. (Supp. I) 1201 et seg. Because of geo-

graphical differences between Virginia and Indiana

and the resulting differences in the methods and ef-

fects of surface coal mining operations in the two

(1)

states, many of the specific provisions attacked in

the present case are different from the “steep slope”

provisions that were the primary focus of plaintiffs’

complaint in Virginia Surface Mining. Plaintiffs’

legal theories in the two cases are virtually identical,

however.

The basic structure of the Surface Mining Act is

described in 79-1538 J.S. 3-7.'. The specific pro-

visions of the Act challenged by the State of Indiana

and the other plaintiffs below are listed in the dis-

trict court’s opinion (App. A, infra, 3a-5a). For

present purposes, the following brief description of

the challenged provisions should suffice.

First, plaintiffs attack several sections of the Act

known collectively as the “prime farmland’ provis-

ions. These sections establish certain special require-

ments for surface mining operations that are to be

conducted on land that qualifies as prime farmland

under a definition promulgated by the Secretary of

Agriculture. See Section 701(20) of the Act, 30

U.S.C. (Supp. I) 1291(20). For example, Section

510(d)(1) of the Act provides that an application

for a surface mining permit on prime farmland is

to be granted only if the mine operator can demon-

strate his technological capability to restore mined

land to an equivalent or improved prime farmland

use and to meet the soil reconstruction standards for

prime farmland set forth in Section 515(b)(7). 30

U.S.C. (Supp. I) 1260(d) (1), 1265(b) (7). Further-

more, Section 519(c) (2) provides that, upon the com-

pletion of mining activities on prime farmland, a

mine operator’s performance bond will be released

only when soil productivity “has returned to equiva-

1A copy of the jurisdictional statement in No. 79-1538

has been sent to appellees.

lent levels of yield as nonmined land of the same soil

type in the surrounding area under equivalent man-

agement practices * * *.” 30 U.S.C. (Supp. I) 1269

In addition to the prime farmland provisions,

plaintiffs challenge a variety of more general sec-

tions in the Act applicable uniformly throughout the

country. These include Section 515(b) (3)’s require-

ment that mined land be restored to its approximate

original contour and the command in Section 515(b)

(5) that surface mine operators remove topsoil sep-

arately during mining activities and preserve it for

use during reclamation if it is not to be replaced im-

mediately on the backfill area of the mining cut. 30

U.S.C. (Supp. I) 1265(b) (3), (5). Plaintiffs object

generally to the provisions in Section 508 of the Act

that require applicants for surface mining permits

to include in their application proposed reclamation

plans specifying the intended post-mining use for the

land involved and the method by which that use will

be achieved. 30 U.S.C. (Supp. I) 1258. Plaintiffs

also complain about Section 522 of the statute, which

requires states that wish to assume primary regula-

tory authority over surface mining operations within

their borders to establish and implement a planning

and administrative review procedure for determining

whether particular lands are unsuitable for some or

all kinds of surface mining. 30 U.S.C. (Supp. I)

1272(a), (c), (d).’ Like the plaintiffs in Virginia

2? With the exception of Georgia, Alaska, and Washington,

all states in which surface coal mining is conducted have

submitted to the Secretary of the Interior proposed state

programs under which the states wish to assume primary

regulatory authority over surface mining operations, in ac-

cordance with Section 503 of the Act. 30 U.S.C. (Supp. I)

Surface Mining, plaintiffs here object specifically

to Section 522(e)(4) and (5)’s general injunction

against surface mining within 100 feet of road-

ways and cemeteries or within 300 feet of public

buildings, schools, churches, public parks, or occupied

dwellings. 30 U.S.C. (Supp. I) 1272(e) (4) and (5);

see 79-1538 J.S. at 11 & n.7.

Finally, like the plaintiffs in Virginia Surface

Mining and Star Coal, plaintiffs in the present case

challenge the Surface Mining Act’s procedure for col-

lecting proposed civil penalties. Under Section 518

ministrative review of a proposed civil penalty as-

sessed as the result of an alleged violation of the

Act must first deposit the amount of the proposed

penalty into an interest-bearing escrow account. If

it is determined during the ensuing administrative

review procedure that the operator is not liable for

some or all of the assessed penalty, the overpaid

amount is returned to the operator with interest. 30

U.S.C. (Supp. I) 1268(c).

2. The present case comprises two companion

suits, consolidated for all purposes. Both were filed

in August 1978, the first by the State of Indiana

and several of its officials, and the second by the

Indiana Coal Association, coal mine operators, and

others. Plaintiffs contended: (1) that all the

substantive statutory provisions described above (7.e.,

all the provisions mentioned with the exception of

Section 518(c)) are beyond the scope of the con-

gressional power to regulate interstate commerce un-

1253. The Secretary has not yet acted on most of the proposed

state programs, including that submitted by Indiana. Accord-

ingly, the interim regulatory phase of the Act is still in effect

in Indiana.

der Article I, Section 8, of the Constitution; (2) that

the same provisions violate the Tenth Amendment

because they regulate land uses, thereby usurping

an “integral governmental function” traditionally re-

served to and performed by the states; (3) that the

provisions of the Act dealing with reclamation of

prime farmlands and restoration of mined lands to

their “approximate original contour” violate the

substantive due process and equal protection guaran-

tees of the Fifth Amendment because they impermis-

sibly discriminate among mine operators in different

states; (4) that the prime farmland provisions of

the Act and Section 522’s provisions regarding the

designation of certain lands as unsuitable for sur-

face mining take private property without just com-

pensation, in violation of the Fifth Amendment; and

(5) that the requirement of depositing proposed civil

penalties into escrow violates due process.°

In due course, a hearing was held on plaintiffs’

motion for a preliminary injunction and defendants’

motion to dismiss, and pursuant to a stipulation of

the parties, the district court ultimately decided the

case on the merits without taking further evidence.

On June 10, 1980, the court issued an order (App.

B, infra) and opinion (App. A, infra) sustaining

plaintiffs’ principal challenges to the Act.*

8 Other issues raised in the complaint dealing with the

Fourth Amendment (inspections without warrants), the

reclamation fee established by Title IV of the Act, civil penal-

ties, and the National Environmental Policy Act, 42 U.S.C.

4321, et seq., were voluntarily dismissed during the litigation.

* We note that the court’s opinion consists of “Findings of

Fact and Conclusions of Law” adopted verbatim from the

proposal submitted by plaintiffs.

The court adopted plaintiffs’ argument that var-

ious sections of Title V of the Act exceed Congress’

power under the Commerce Clause (App. A, infra,

12a-19a), and held that, in any event, the same pro-

visions of the Act violate the reserved rights of the

states under the Tenth Amendment (id. at 36a). In

particular, the court ruled that the portions of the

Act dealing with prime farmlands, restoration of

mined lands to the “approximate original contour,”

replacing topsoil, and postmining land uses are un-

constitutional and their enforcement was permanently

enjoined (App. B, infra, 46a-48a). The district court

also concluded that the approximate original contour

and prime farmland provisions of the Act violate the

Due Process Clause of the Fifth Amendment (App.

A, infra, 37a-39a). Furthermore, the requirement of

restoring the land to equivalent levels of productivity

was held to offend the Just Compensation Clause of

the Fifth Amendment (id. at 40a-42a). The court

found another unconstitutional taking in Section 522

of the Act, 30 U.S.C. (Supp. I) 1272, which pro-

hibits surface coal mining within 100 feet of any

cemetery or the “outside right-of-way line of any

public road,” or within 300 feet of any public build-

ing, school, church, public park, or occupied dwelling,’

and establishes procedures for designating lands un-

suitable for surface coal mining (App. A, infra, 40a-

5 Section 522(e) (5) provides that the prohibition of surface

mining within 300 feet of an occupied dwelling may be waived

by the dwelling’s owner. Similarly, Section 522(e) (4) per-

mits waivers or adjustments of the prohibition against sur-

face mining within 100 feet of roadways. Furthermore, the

prohibitions in Section 522(e) are subject to “valid existing

rights” and do not apply to mining operations in existence

on the date of the statute’s enactment. 44 Fed. Reg. 15342

(1979) (to be codified in 30 C.F.R. 761.3).

42a). Finally, the court struck down as offending

procedural due process Section 518(c) of the Act, 30

U.S.C. (Supp. I) 1268(c), which requires persons

charged with a violation of the Act to deposit the

proposed penalty into escrow (App. A, infra, 43a-

44a). The judgment entered the same day perma-

nently enjoined enforcement of all the foregoing pro-

visions (App. B, infra).

The Secretary filed a notice of appeal to this Court

on June 16, 1980 (App. C, infra). On June 25, 1980

the district court denied our motion for a stay pend-

ing appeal (App. D, infra). On July 2, 1980, Mr.

Justice Stevens entered an order staying the district

court’s order pending final disposition of this appeal

(App. E, infra).

THE QUESTIONS ARE SUBSTANTIAL

The district court’s final judgment declared nu-

merous important provisions of the Surface Mining

Act unconstitutional and enjoined the Secretary from

taking any action to enforce these provisions against

surface coal mining operations in the State of In-

diana. The district court’s far-reaching decision ef-

fectively nullified the Surface Mining Act in Indiana.

Unless the decision below is reversed by this Court, it

will deal a severe blow to the congressional effort to

promote interstate commerce and to protect the en-

vironment and public health and safety through the

effective regulation of surface coal] mining.

1. The district court’s rulings insofar as they in-

voke the Tenth Amendment and the Just Compensa-

tion Clause of the Fifth Amendment are essentially

identical to the decision in Virginia Surface Mining.

The deficiencies in the court’s analysis in this regard

have been outlined in the Secretary’s Jurisdictional

Statement in Virginia Surface Mining, 79-1538 J.S.

16-24, and the constitutional questions remain sub-

stantial for the reasons stated there. In addition, it

is appropriate to observe that this Court has already

rejected a Tenth Amendment argument like that

adopted by the district courts in the present case and

in Virginia Surface Mining. Appellees in Duke

Power Co. v. Carolina Environmental Study Group,

438 U.S. 59 (1978), argued that the Price-Anderson

Act’s limitation on liability arising from a nuclear

accident violated the Tenth Amendment because it

encroached on “the right of the state to protect its

own property and its interest in protecting the lives

and dwellings of its inhabitants * * *.” 77-262 Ap-

pellees’ Br. 35. The Court summarily disposed of

this contention in a footnote, saying that “[n]othing

in National League of Cities [v. Usery, 426 U.S. 833

(1976),] or in our prior due process cases provides

any support for this claim” (438 U.S. at 84 n.27).

The district court’s invalidation of the Surface Min-

ing Act on Tenth Amendment grounds is similarly

unsupportable.

2. The district court’s procedural due process rul-

ing with respect to the constitutionality of Section

518(c) of the Surface Mining Act is indistinguish-

able from the earlier district court decisions on which

the present opinion relies, 7.e., Virginia Surface Min-

ing and Star Coal. The correctness of those earlier

decisions is now the subject of the Secretary’s appeal

to this Court in No. 79-1538 and No. 80-49. The

civil penalty provisions in Section 518 of the Surface

Mining Act are critical to the effective enforcement

of the Act’s regulatory provisions, and, for the rea-

sons stated in 79-1538 J.S. 31-34, the prepayment

feature of those provisions does not violate the Due

Process Clause. The district court therefore erred

in ruling Section 518 unconstitutional and enjoining

its enforcement.

3. The district court ruled that approximately 20

different subsections in Title V of the Surface Min-

ing Act are unconstitutional because they exceed

Congress’ power under the Commerce Clause in Ar-

ticle I, Section 8, of the Constitution (App. A,

infra, 17a-19a). The primary basis of the court’s

ruling was its finding that surface coal mining opera-

tions on prime farmland in Indiana will have a

“trivial impact on interstate commerce” (App. A,

infra, 12a). In addition, the district court concluded

(App. A, infra, 18a-19a) that the “approximate

original contour” provision (Section 515(b) (38), 30

U.S.C. (Supp. I) 1265(b) (3)), the topsoil preserva-

tion requirement (Section 515(b)(5), 30 U.S.C.

(Supp. I) 1265(b)(5)), and the provisions dealing

with the designation of certain areas as unsuitable

for surface mining (Sections 522(a), (c), (d) and

(e) (4) and (5), 30 U.S.C. (Supp. I) 1272(a), (c),

(d), and (e)(4) and (5)) are not directed at the

alleviation of water or air pollution (even assuming

surface mining may produce such consequences), and

in any event, are not means “reasonably and plainly

adapted to the legitimate end of removing any sub-

stantial adverse effect on interstate commerce” (App.

A, infra, 17a).

The district court’s reasoning is seriously flawed.

First, the finding that surface coal mining operations

in Indiana will have a “trivial impact on interstate

commerce” is beside the point. At least since Wick-

ard v. Filburn, 317 U.S. 111, 127-128 (1942), and

Polish Alliance v. Labor Board, 322 U.S. 648, 648

(1944), it is the cumulative potential effect of uncon-

trolled surface mining en prime farmlands through-

out the Nation that must be considered. See, ¢.g.,

Katzenbach v. McClung, 379 U.S. 294, 300-301

(1964). Further, there is no ground for faulting the

congressional judgment that poorly regulated surface

coal mining may imperil substantial amounts of ag-

ricultural acreage in many states and that this, in

turn, will affect interstate commerce in agricultural

products. Such congressional judgments as to adverse

consequences for interstate commerce are entitled to

deference if there is any rational basis for them. /d.

at 303-304. Here, there is surely a rational basis for

concluding that the cumulative effects of uncontrolled

surface coal mining on prime farmlands will have

significant impact on interstate commerce.’ The pro-

visions dealing with approximate original contour,

topsoil handling, postmining land use, and related

matters are rational means of accomplishing one

of the Act’s primary goals: the reclamation of mined

lands to a productive condition that will not con-

tribute to environmental deterioration. See, e.g., H.R.

Rep. No. 95-218, 95th Cong., 1st Sess. 93 (1977).

Even assuming that, in a particular situation involv-

ing a particular piece of land and the application

of a particular statutory provision, some serious con-

stitutional question might be presented under the

Surface Mining Act, that is no justification for a

wholesale invalidation of numerous critical statutory

sections on Commerce Clause grounds.

4. The district court also ruled that the Act’s

prime farmland provisions and the provision requir-

ing restoration to approximate original contour, Sec-

tion 515(b) (8), 30 U.S.C. (Supp. I) 1265(b) (3),

violate the substantive due process and equal protec-

tion guarantees of the Fifth Amendment (App. A,

infra, 37a-39a). According to the court, the lack of

® See, e.g., 128 Cong. Rec. 15720 (1977) (remarks of Sen.

Percy).

variance procedures applicable to the prime farmland

provisions and the limitation of permissible variances

from the approximate original contour requirement

in Section 515(b) (3) to mining on mountaintops and

steep slopes impermissibly discriminate against opera-

tors and states in the Midwest, where there are sig-

nificant coal reserves located under prime farmland

and few or no steep slopes or mountaintops (App. A,

infra, 37a-38a). In addition, the court held that the

prime farmland and approximate original contour

provisions themselves are so “irrational, arbitrary

and capricious” that they “constitute a deprivation

of substantive due process in violation of the Fifth

Amendment” (id. at 39a).

We challenge that conclusion. Economic legisla-

tion such as the Surface Mining Act carries with it

a presumption of rationality which can only be over-

come by a showing of arbitrariness or irrationality.

Duke Power Co. v. Carolina Environmental Study

Group, supra, 488 U.S. at 88; Usery v. Turner Elk-

horn Mining Co., 428 U.S. 1, 15 (1976). One who

would establish that such a congressional enactment

is arbitrary or irrational bears an extremely heavy

burden. Vance v. Bradley, 440 U.S. 93, 97, 111

(1979). A court may not substitute its judgment

for that of Congress merely because it believes that

Congress was “unwise in not choosing a means more

precisely related to its primary purpose.” Jd. at 109.

Here, the district court’s opinion provides no factual

or legal basis for concluding that the provisions in

question are arbitrary or irrational. The district

court failed to mention, and the plaintiffs failed to

present, any concrete factual situation where the

prime farmland or approximate original contour pro-

visions have been applied to a mining operation so

as to cause an irrational result.

Moreover, even assuming arguendo that the pro-

visions in question impose a greater burden against

operators in midwestern states, that is not a suffi-

cient basis for striking them down as unconstitu-

tional. It is well-established that a claim of arbitrari-

ness or irrationality cannot be founded merely upon

a statute’s lack of uniform geographic impact. Sec-

retary of Agriculture v. Central Roig Refining Co.,

3388 U.S. 604, 616 (1950); Currin v. Wallace, 306

U.S. 1, 14 (1989). As this Court explained in Cen-

tral Roig Repning (338 U.S. at 616) :

Nor does the Commerce Clause impose require-

ments of geographic uniformity. * * * Congress

may devise * * * a national policy with due re-

gard for the varying and fluctuating interests of

different regions. [Citations omitted. ]

The short answer to plaintiffs’ discrimination com-

plaint is that the characteristics of surface mining

operations vary with geography, and geographical

conditions are not the same in all affected states.

Congress has determined that measures appropriate

for steep-slope mines are not necessarily desirable in

prime farmland areas. That is surely a rational dis-

tinction for Congress to draw, and the fact that a

particular state has more of one kind of mining op-

eration than another does not establish discrimina-

tion in violation of the Due Process Clause of the

Fifth Amendment.

CONCLUSION

Probable jurisdiction should be noted, and the case

should be set for argument in tandem with Virginia

Surface Mining.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

Louis F, CLAIBO) NE

Deputy Solicitor General

PETER BUSCEMI

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

MICHAEL A. McCorp

Attorneys

AuGusT 1980

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Civil No. IP 78-500-C

STATE OF INDIANA;

OTIS R. BOWEN, M.D., Governor of the

State of Indiana;

JOSEPH D. CLOUD, Director of the

Indiana Department of Natural Resources; and

INDIANA DEPARTMENT OF NATURAL RESOURCES,

PLAINTIFFS

v8.

CECIL D. ANDRUS, as Secretary of the

United States Department of the Interior;

WALTER J. HEINE, as Director of the Office of

Surface Mining Reclamation and Enforzement;

OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT;

UNITED STATES DEPARTMENT OF THE

INTERIOR; and the

UNITED STATES OF AMERICA, DEFENDANTS

Civil No, IP 78-501-C

INDIANA COAL ASSOCIATION ;

MEADOWLARK FARMS, INC.;

AMAX COAL COMPANY, a divison of AMAX INC.;

PEABODY COAL COMPANY; and

JOHN A. CONLON, a resident and citizen of the

State of Indiana, PLAINTIFFS

v8.

THE UNITED STATES OF AMERICA;

THE UNITED STATES DEPARTMENT OF THE INTERIOR;

Ceci. D. ANDRUS, as Secretary of the

United States Department of the Interior;

THE OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT;

and

WALTER J. HEINE, as Director of the Office of

Surface Mining Reclamation and Enforcement;

DEFENDANTS

MEMORANDUM OF DECISION

Plaintiffs in these consolidated actions seek a judg-

ment declaring various portions of the Surface Min-

ing and Control Act of 1977 (the Act), 30 U.S.C.

§§ 1201 to 1328, unconstitutional, as well as a per-

manent injunction preventing enforcement of the

challenged provisions by the Secretary of the Interior.

The matter came before the Court for a trial on the

merits on April 24, 1980, pursuant to joint motion

and procedural stipulation by the parties. Defend-

ant’s motion to dismiss, taken under advisement at

that time, will be treated as a motion for summary

judgment pursuant to Rule 56 of the Federal Rules

of Civil Procedure, and is hereby DENIED.

Plaintiffs include AMAX, Inc., through its division

AMAX Coal Company, Peabody Coal Company, and

members of the Indiana Coal Association, each of

whom is an owner or operator of surface coal mines

within the State of Indiana, Meadowlark Farms, Inc.,

which owns interests in realty, some of which are

coal interests which it leases to AMAX, Inc., and

conducts farming operations and other activities on

the reclaimed land, James A. Conlon, a resident and

citizen of the State of Indiana, as well as the State

of Indiana, Otis R. Bowen, M.D., its Governor, Joseph

D. Cloud, Director of the Indiana Department of

Natural Resources which, pursuant to Ind. Code § 13-

4-6-4 (1976), is responsible for supervising and en-

forcing the Indiana Strip Mining Reclamation Act,

and the Indiana Department of Natural Resources.

Defendant Office of Surface Mining Reclamation

and Enforcement, its director, Walter J. Heine, and

Cecil D. Andrus, as Secretary of the Department of

the Interior, are responsible for administering the

Act and enforcing its provisions.

The complaints allege that the challenged provis-

ions exceed the regulatory authority conferred upon

the federal government under the Commerce Clause

of the United States Constitution and are not rea-

sonably related to the legitimate end of controlling

commerce-affected environmental problems, that they

are unconstitutional land use control and planning

regulations violative of the Tenth Amendment, that

they place disproportionate burdens upon surface

mining operations, and therefore upon Indiana coal

mining, which is almust exclusively of the surface

mining variety, and that they constitute a taking of

property without just compensation, in violation of

due process and Taking Clause requirements of the

Fifth Amendment. Specifically, the challenged pro-

visions, all of which are within Title V of the Act,

are:

(a) §507(b) (16) [80 U.S.C. § 1257(b) (16) ];

(b) §701(20) [30 U.S.C. § 1291(20)]:

poss § 1258(a)(2), (3), (4), (8) and

(d) §510(d)(1) [380 U.S.C. § 1260(d) (1)];

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(1)

$ 515(b)(7) [80 U.S.C. § 1265(b) (7) ];

§ 515(b) (19) [80 U.S.C. § 1265(b) (19) ]

insofar as that portion which provides

“.. achieve the approved postmining land

use plan... .”;

§ 515(b) (20) [80 U.S.C. § 1265(b) (20) ],

as to that portion which provides, “when

the regulatory authority approves a long-

term intensive agricultural postmining

land use” and further that portion ‘when

the regulatory authority issues a written

finding approving a long-term, intensive,

agricultural postmining land use as part

of the mining and reclamation plan .. .;”,

and any other part which requires any

post-mining land use.

§519(c)(2) [80 U.S.C. § 1269(c) (2)],

as to that portion which provides “. . .

until soil productivity for prime farm lands

has returned to equivalent levels of yield

as nonmined land of the same soil type in

the surrounding area under equivalent

management practices” ;

§ 515(b) (3) [80 U.S.C. § 1265(b) (3) ];

§ 515(b) (5) [80 U.S.C. § 1265(b) (5) ];

§ 522(a), (c), (d), (e)(4) and (5) [80

U.S.C. § 1272(a), (c), (d), (e)(4) and

(5)]; and

§510(b)(1) and (2) [80 U.S.C. § 1260

(b) (1) and (2)] to the extent that it re-

quires that a permit application be denied

or approved depending on approval of the

postmining land use or of any change in

postmining land use from the premining

land use.

(m) §518(c) [30 U.S.C. § 1268(c)].

(n) §508(a)(2)(C) [80 U.S.C. § 1258(a) (2)

(C)] as to that portion “the productivity

of the land prior to mining, including ap-

propriate classification as prime farm

lands, as well as the average yield of food,

fiber ... products . . . obtained under high

levels of management;”’

(o) §519(c)(2) [80 U.S.C. § 1269(c) (2)] as

to that portion which provides that a bond

on prime farmland may not be released

“until soil productivity for prime farm

lands has returned to equivalent levels of

yield as nonmined land of the same soil

type in the surrounding area under equiva-

lent management practices . . .”.

The challenged provisions constitute the heart of

the Act, which was promulgated in 1977 primarily

to counteract perceived adverse environmental effects

of surface mining operations. See 30 U.S.C. § 1201

(c). The legislation established a uniform set of

mining and reclamation regulations to be imple-

mented by way of conforming state enforcement pro-

grams, approval and supervision of which was made

the responsibility of the newly-created Office of Sur-

face Mining Reclamation and Enforcement. The

Act is effective in two stages. From August 3, 1977

until either a state or federal program is imple-

mented, a limited number of provisions are in effect

[$$ 501-504, 30 U.S.C. §§ 1251-541.] This is com-

monly denoted as the interim phase, during which

period the states must issue permits requiring com-

pliance with the interim aspects of the federal Act

[§ 502(a) and (b), 30 U.S.C. §1252(a) and (b)].

Most of Title V becomes effective when either a state

program is approved or a federal program is imple-

mented [§ 504(a), 30 U.S.C. §1254(a)], and an

operator must submit an application with reclama-

tion plans for a permit within two months of the

approval of a state program or the implementation

of a federal program [§ 502(d), 30 U.S.C. § 1252

(d)]. The Secretary of the Interior has issued reg-

ulations for the interim period [republished as 30

C.F.R. §§ 710-725] pursuant to § 501(a) [80 U.S.C.

§ 1251(a)], and regulations for the formulation, sub-

mittal and review process of state programs, as well

as for permanent aspects of the Act [30 C.F.R.

$§ 700-899], pursuant to § 501(b) [80 U.S.C. § 1251

(b)].

To retain authority over the regulation of surface

mining operations and other matters encompassed

within the Act, the states must pass laws and regu-

lations for and submit a state program to the Sec-

retary of the Interior [§504, 30 U.S.C. § 1254]. The

time for such submission was extended to March 3,

1980, by order of the District Court for the District

of Columbia [Jn Re Permanent Surface Mining Reg-

wlation Litigation, 18 ERC 1447 and i586 (1979) ]

because of the Secretary’s delay in promulgating per-

manent regulations. A state program, including the

legislation and regulations for the program, must

conform to the Act and to the Secretary’s regula-

tions [§ 503(a) (1) and (7), 30 U.S.C. § 1253 (a) (1)

and (7)]. If the state program is not approved, the

Secretary must promulgate a federal program for the

state. Permits and enforcement would then be ac-

complished by the Office of Surface Mining Reciama-

tion and Enforcement, a part of the Department of

the Interior.

The Court’s jurisdiction in this case is predicated

upon 28 U.S.C. §§ 1331, 1337, 2201 and 2202. Stand-

ing exists by virtue of the fact that at least one

party has standing in regard to each issue. See

California Banker’s Association v. Schultz, 416 U.S.

21, 44-46 (1974). Not all of the contested provisions

are a part of the currently effective interim program.

However, judicial determination as to the validity

of various portions of the soon to be effective per-

manent program, with which any Indiana program

must comply, will serve to clarify the extent to which

the state program must conform to the Act’s par-

ticularized requirements, and avoid enactment by the

Indiana legislature of unnecessary laws and regula-

tions. There can be no doubt that plaintiffs are cur-

rently aggrieved by the provisions being challenged.

The Act has necessitated huge expenditures on the

part of Indiana surface mine operators, and threat-

ens to destroy Indiana’s competitive position as a

supplier of coal. Plaintiff AMAX Coal Company in

1978 expended approximately $27,000,000 to pur-

chase equipment required in order to comply with the

Act and incurred an additional $8,100,000 in in-

creased operating costs for its four Indiana mines.

The figures for 1979 were $6,000,000 for additional

equipment and over $8,000,000 in increased operat-

ing costs. These figures do not include pollution con-

trol costs or blasting expenditures, but rather are

limited to costs made necessary by the prime farm-

land, topsoiling, and approximate original contour

requirements of the Act, challenged herein. The huge

cost increases have already led AMAX to close one

mine just prior to the effective date of the Act’s

interim program, resulting in the loss of 152 jobs

and over 600,000 tons of coal production annually.

See Plaintiff’s Exhibits 9, 10, 29 and 30.

The Court has reviewed the testimony, arguments,

exhibits, briefs and relevant caselaw in this cause,

and has concluded that, for reasons set out more

fully below, various portions of Title V of the Surface

Mining Control and Reclamation Act of 1977 exceed

Congress’ powers under the Commerce Clause, im-

pinge upon the sovereign powers of the State of In-

diana in violation of the Tenth Amendment, and con-

travene due process and Taking Clause provisions of

the Fifth Amendment. Accordingly, these provisions

must be declared invalid. Plaintiffs have submitted

what the Court considers to be a thorough yet con-

cise statement of proposed findings of fact and con-

clusions of law in this matter. The Court now adopts

and sets forth below as its own these findings and

conclusions as required by Rule 52 of the Federal

Rules of Civil Procedure. An Order and Judgment

embodying the Court’s conclusions herein will ac-

company this opinion.

COMMERCE CLAUSE

(A) Issues:

Plaintiffs assert that provisions of Title V are at-

tempts by Congress to regulate facets of surface coal

mining operations which have no substantial adverse

effect on interstate commerce, or that these provisions

are not a means reasonably or plainly adapted to any

legitimate end permitted by the Constitution under

the Commerce Clause, that is, removing substantial

adverse effects on interstate commerce.

Under these issues plaintiffs challenge “the prime

farmland provisions” which encompass the following

sections of Title V:

§ 507(b) (16) [80 U.S.C. § 1257(b) (16) ] which

requires the applicant to identify in the permit

application the location.of “prime farmlands”

on which surface mining operations are to be

conducted, pursuant to the definition of prime

farmland as established by the Secretary of Agri-

culture pursuant to § 701(20) [30 U.S.C. § 1291

(20)];

§ 508(a)(2)(C) [80 U.S.C. § 1258(a) (2) (C)]

which requires that the reclamation plan sub-

mitted with the application include a statement

concerning “the productivity of land prior to

mining, including appropriate classification as

prime farm lands, as well as the average yield

of food, fiber . . . products from such lands ob-

tained under high levels of management. . .;”

§510(d)(1) [80 U.S.C. § 1260(d)(1)] which

requires that the regulatory authority, before

issuing a permit farmland surface mining op-

erations on prime farmland, shall consult with

the Secretary of Agriculture, and grant a per-

mit to mine on prime farmland only if the regu-

latory authority finds that the operator “has the

technological capability to restore such mined

area ... to equivalent or higher levels of yield

as non-mined prime farmland in the surround-

ing area under equivalent levels of management

and can meet the soil reconstruction standards

in Section 515(b) (7) .. .;”

§515(b)(7) [80 U.S.C. § 1265(b)(7)] which

requires the separate removal and replacement

of the A, B and C soil horizons in the instance of

prime farmlands;

§ 515(b) (20) [30 U.S.C. § 1265(b) (20)] as to

that portion which provides, “when the regula-

tory authority approves a long-term intensive

10a

agricultural postmining land use’, and further

that portion “when the regulatory authority is-

sues a written finding approving a long-term, in-

tensive, agricultural postmining land use as part

of the mining and reclamation plan .. .”, and

any other part which requires any postmining

land use;

§ 519(c)(2) [80 U.S.C. § 1269(c) (2) ] which

provides that the bond for mining on prime farm-

land may not be released “‘until soil productivity

for prime farm lands has returned to equiva-

lent levels of yield as nonmined land of the same

soil type in the surrounding area under equiva-

lent management practices... .”

[Hereafter the foregoing provisions are referred

to as “the prime farmland provisions.” ]

The plaintiffs under these issues further challenge

the approximate original contour requirements of

§ 515(b) (8) [80 U.S.C. § 1265(b) (3)], the topsoil-

ing requirements of § 515(b)(5) [30 U.S.C. § 1265

(b)(5)], and the areas unsuitable for surface min-

ing provisions § 522(a), (c), (d) and (e)(4) and

(5) [80 U.S.C. § 1272(a), (c), (d) and (e) (4) and

(5)].

Plaintiffs also challenge those provisions of the Act

which combine to require a commitment by an op-

erator to a certain postmining land use, as well as

the approval of such postmining land use by the

regulatory authority as a condition to the applicant

being granted a permit to mine. These provisions

are: §507(d) [30 U.S.C. § 1257(d)] which requires

the submission of an acceptable reclamation plan,

which must contain information regarding the pre-

mining and postmining use, as well as the produc-

tivity of land, and those which require a detailing

in the plan of how the proposed postmining land

lla

use will be achieved, as well as necessary support

activities for the proposed postmining land use, all

as contained in § 508(a) (2), (3), (4), (8) and (10)

[30 U.S.C. § 1258(a) (2), (8), (4), (8) and (10)];

§510(b)(1) and (2) [80 U.S.C. § 1260(b) (1) and

(2)] which require that a permit application be de-

nied unless all of the application requirements are

accurate and complete and that the reclamation re-

quirements including the land use concepts as set

forth above, ‘‘can be accomplished”; and certain por-

tions of § 515(b) (19) and (20) [80 U.S.C. § 1265

(b) (19) and (20)] which are respectively the “ap-

proved postmining land use plan”, and ‘the regula-

tory authority approves a long term intensive agri-

cultural postmining land use’, and ‘“‘the regulatory

authority issues a written finding approving a long-

term, intensive, agricultural postmining land use as

part of the mining and reclamation plan... .”

The Court’s inquiry on the question of whether

Congress has properly exercised the Commerce Clause

power is a very specific, limited and two-fold inquiry:

First, this Court must “determine whether the par-

ticular activity [facet of surface mining operations]

regulated or prohibited is within the reach of the

federal power,” United States v. Darby, 312 U.S. 100,

120-21 (1941), that is, whether there is a rational

basis for Congress to conclude that the particular

facet of surface mining operations regulated or pro-

hibited has a substantial and adverse effect on inter-

state commerce. A “‘trival impact on commerce” may

not be used by Congress “as an excuse for broad

general regulation of state or private activities,”

Maryland v. Wirtz, 392 U.S. 188, 196 n.27 (1968).

Second, ‘‘the means chosen,” that is the form of regu-

lation, must be “reasonably adapted” or “plainly

12a

adapted” to the legitimate end of removing the sub-

stantial and adverse effect on interstate commerce.

Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 262 (1964), M’Culloch v. Maryland, 17

U.S. (4 Wheat.) 316, 421 (1819).

(B) Findings:

1. Surface coal mining operations on prime farm-

land, as distinguished per se from any other type

of land, have an infinitesimal or trivial impact on

interstate commerce. The extent and distribution

of prime farmland in the United States was pre-

sented to Congress in the form of the Report Of

The Interagency Task Force On The Issue Of A

Moratorium Or A Ban On Mining In Prine Agri-

cultural Lands, prepared by Office of Management

and Budget, Soil Conservation Service, Bureau of

Mines, Federal Energy Administration, and the En-

vironment Protect Agency (hereinafter the ‘Re-

port”). The Report was presented with a report

entitled Restoring Soil Productivity On Surface-

Mined Land, Johnson, McCormack and Sampson

(1977), which was presented to the House Commit-

tee at Briefing Presentation By The Soil Conserva-

tion Service Before The Committee On Interior And

Insular Affairs, U.S. House of Representatives, April

5, 1977. [See 48 Fed. Reg. 41,716 (1978), Part III;

Exhibit 3 to Deposition of Neil Sampson (one of the

authors ). ]

2. The legislative history demonstrates that the

Report was before Congress, which relied on the Re-

port in enacting the Act. The House Committee Re-

port states as follows:

The Carter Administration has recommended

that a 5-year moratorium be placed on mining on

13a

prime agricultural lands until studies are con-

ducted to learn if the soil can be returned to its

original productivity. . .. Furthermore, data

contained in the report of the Interagency Task

Force on the Issue of a Moratorium or a Ban

on Mining in Prime Agricultural Lands appears

to confirm the view that a moratorium is not

justified. [H.R. Rep. No. 95-218, 95th Cong.,

1st Sess. 185 (1977); emphasis added. |

Such Congressional reliance is further shown by the

fact that the data set forth in the Report, as well as

that presented by Mr. Sampson, was presented to the

Senate and printed in the Records. [123 Cong. Rec.

$8,105 (daily ed. May 20, 1977).]

3. The Report disclosed the results of a Soil Con-

servation Service study conducted in 1975 to evaluate

the status of the Nation’s croplands in 1975 by com-

parison of the current land use on sample plots with

the land use in 1967. It was found that the Nation

contains a total of 384,000,000 acres of “prime farm-

land,” of which 250,000,000 acres (or 65%) was

used for the production of crops. [See also H.R. Rep.

No. 95-218, 95th Cong., 1st Sess. 105-06 (1977).]

Approximately 134,000,000 acres of prime farmland

was not in cropland use. The study disclosed that an

annual average of 1,000,000 acres of prime farmland

was converted to urban and water uses during the

period 1967 to 1975. Of the 8,000,000 acres of prime

farmland lost to such use during that period of time,

6,500,000 acres were converted to urban uses and

1,500,000 acres to water uses, or 80% and 19%

respectively. [ Report, p. 6, Table 5.]

4, Further studies were conducted based upon the

annual production of surface coal mining in the

United States in 1977 and its effect on prime farm-

14a

land. The studies showed that approximately 21,800

acres of prime farmland were disturbed by surface

mining on an annual basis. This constitutes only

2% of the 1,000,000 acres per year that is irretriev-

ably lost to urban and water use. Further, it con-

stitutes only six one-thousandths of one percent

[0.006% ] of the total prime farmland in the United

States. It would take 166 years for surface mining

to disturb 1/100 (one one-hundredth) of the total

prime farmland in the United States. Therefore, it

was determined that the impact of surface mining

on the loss of prime farmland was negligible. The

Report concluded that even if the entire 21,800 acres

of prime farmland affected in 1977 came entirely

out of corn production, the yearly effect based on the

1976/1977 crop year would be less than 0.04%. In

comparison, through the Agricultural Stabilization

and Conservation Service, the Federal Government

is paying farmers not to grow crops on 5,900,000

acres. [Plaintiffs’ Exhibit 20.] This is 200 times the

amount of prime farmland disturbed annually by

surface coal mining.

5. The Report concluded that the United States

has ample farmland to meet its domestic needs for

the foreseeable future. The Report concluded:

[E]ven assuming a worst case senario [sic] in

which the entire 13,800 acres of prime farmland

annually affected by surface mining in the IlIlin-

ois, Indiana, Western Kentucky coal fields were

lost permanently to farm production, total acre-

age losses over a 30 year period would amount

to 414,000 acres. Further assuming that the

entire impact of the loss would be on corn pro-

duction, the total production loss in the 30th year

would be less than 1% of the national 1976/

1977 yields. [Report, p. 21.]

l5a

The Report also concluded:

The United States has ample farmland to meet

its domestic needs for the foreseeable future.

However, there are some persons who believe that

there exists an ethical responsibilify to retain as

much as possible the existing farmlands of this

Nation. In their view there is a humaritarian

aspect of this problem and they believe that every

acre of prime farmland that goes out of produc-

tion represents loss of food stocks which could be

made available to people in less developed areas

of the world. This view generally does not recog-

nize the issues associated with getting the food

from the United States to those needy in other

countries, e.g., transportation costs, foreign limi-

tations of the less developed countries, and the

views of other countries exporting agricultural

products. [Report, p. 6.]

6. There are 11,500,000 acres of prime farmland

in Indiana. [Affidavit of Dideriksen.] The six major

coal producing countries in Indiana (Sullivan, War-

rick, Clay, Greene, Pike and Vermillion) produce

more than 80% of Indiana’s surface mineable coal

[Plaintiffs’ Exhibit 13], but contribute less than 5%

of the annual production of corn, soybean” and wheat

in Indiana [Plaintiffs’ Exhibit 14]. Only 40,000

acres of prime farmland are projected to be dis-

turbed by surface mining in Indiana in the next

20 years. [Affidavit of Smith.] That amounts to only

3/1,000 (three one-thousandths) of the total prime

farmland in Indiana. Throughout all the Corn Belt

States, it is projected that only 2/1,000 (two one-

thousandths) of the total prime farmland within

those states will be disturbed by surface mining in

the next 20 years [Reference 1 to Defendants’ evi-

dence in opposition to Motion For Preliminary In-

l6a

junction]. The Agricultural Stabilization and Con-

servation Service paid Indiana farmers not to grow

crops on 369,135 acres in 1977. [Plaintiffs’ Exhibit

20.] Thus, the Federal Government is paying Indiana

farmers not to farm nearly 1,000% more land than

would be affected by surface coal mining in Indiana

in the next 20 years.

7. The approximate original contour, topsoiling

and prime farmland provisions of the Act are totally

unrelated to the enhancement of air and water quality

[Tr. 94-97; Plaintiffs’ Exhibit 21]. The four identi-

fied pollutants are iron, manganese, suspended solids

and acidity (pH). [Tr. 94; 30 C.F.R. § 715.17; 30

C.F.R. § 816.42.]

8. Requiring the return of prime farmland to the

use of farming in postmining use would actually in-

crease water pollution. One of the more serious prob-

lems with respect to water pollution within the State

of Indiana is that of sedimentation (or suspended

solids) in streams which is caused by farming. [Tr.

96.] Thus, the prime farmland provisions of the Act

would increase or cause an adverse effect of surface

coal mining operations on water quality.

9. The Report of the 208 Water Quality Program

study and analysis [hereinafter ‘208 Report”] shows

that active surface mining in Indiana is not causing

any surface water quality problems, and that to the

extent that water quality problems exist in Indiana,

such problems are caused by land that was reclaimed

prior to the 1967 Indiana surface mining reclama-

tion law. [Plaintiffs’ Exhibit 45; Defendants’ Exhibit

in Opposition to Motion for Preliminary Injunction,

pp. 216-17.] The report also states that water quality

aspects of Indiana mines are presently being con-

trolled by the National Pollution Discharge and

17a

Elimination System Standards of the Clean Water

Act which are “a major factor in preventing unde-

sirable pollutants from entering surface waters from

active strip mines.” [208 Report, p. 217.]

10. Plaintiffs coal companies own and/or have

rights to and presently intend to mine lands subject

to §522(e)(4) and/or (5) [80 U.S.C. § 1272(e)

(4) and/or (5)]. [See Plaintiffs’ Exhibit 33 and

deeds and/or leases and maps attached thereto. ]

1. “The prime farmland provisions” are directed

at facets of surface coal mining which have no sub-

stantial and adverse effect on interstate commerce.

Similarly, the prime farmland provisions are not re-

lated to the removal of air and water pollution and

are, therefore, not a means [regulation] reasonably

and plainly adapted to the legitimate end of remov-

ing any substantial adverse effect on interstate com-

merce. These sections, to the extent set forth, are not

within powers delegated to Congress and are unlaw-

ful as being contrary to the Constitution.

2. The water pollutants are being controlled pur-

suant to § 515(b)(10)] [30 U.S.C. § 1265(b) (10) ]

of the Act, which requires minimizing disturbances

to the prevailing hydrologic balance, and § 515(b)

(8) [80 U.S.C. § 1265(b)(8)], which regulates the

quality of discharges from permanent water iin-

poundments. The water pollution control aspects of

the Act are the requirements for settlement ponds,

treatment ponds and that surface drainage or non-

point sources be controlled, as well as point source

discharges under the National Pollution Discharge

Elimination System Standards of the Clean Water

18a

Act. Thus, the Act contains entirely separate pro-

visions dealing with water pollution control, that is,

separate and apart from the original contour, prime

farmland and topsoiling provisions, as well as the

other provisions being challenged by plaintiffs. Ad-

ditional provisions of the Act which are plainly

adapted to alleviating air and water pollution are

§ 515(b) (4) [80 U.S.C. § 1265(b)(4)], which re-

quires stabilization and protection of all surface

areas, including spoil piles, to effectively control ero-

sion and air and water pollution; § 515(b) (11) [30

U.S.C. § 1265(b) (11) [80 U.S.C. § 1265(b) (11) ],

which requires stabilization of mine wastes; § 515

(b) (14) [80 U.S.C. § 1265(b) (14) ], which requires

that all debris, acid-forming materials, toxic ma-

terials or materials constituting a fire hazard are

treated or buried and compacted or otherwise dis-

posed of to prevent contamination of ground and

surface water; § 515(b)(16) [80 U.S.C. § 1265(b)

(16)], which requires that reclamation efforts pro-

ceed in an environmentally sound manner and as

contemporaneously as practicable with surface coal

mining operations; and § 515(b)(19) [380 U.S.C.

§ 1265(b) (19) ], which requires the establishment on

all regraded areas and other lands affected of ‘‘a di-

verse, effective, and permanent vegetative cover of

the same seasonal variety native to the area... and

capable of self-regeneration and plant succession.

3. The approximate original contour provisions

[§ 515(b) (3), 30 U.S.C. § 1265(b) (3) ], the topsoil-

ing requirements [§ 515(b) (5), 30 U.S.C. § 1265(b)

(5)], the areas unsuitable for surface mining pro-

visions [§ 522(a), (c), (d) and (e) (4) and (5), 30

19a

U.S.C. § 1272(a), (c), (d) and (e)(4) and (5)] are

not directed at the alleviation of water or air pollu-

tion, to the extent there are such effects, and are not

means reasonably and plainly adapted to removing

any substantial and adverse effect on interstate com-

merce. These sections are outside the enumerated

powers of Congress and are, therefore, unconstitu-

tional and unlawful.

4. Those provisions of the Act which combine to

require a commitment by an operator to a certain

postmining land use, as well as approval of any

changes in postmining land use by a regulatory au-

thority, as a condition to the operator being granted

a permit to mine, are unrelated to removing any sub-

stantial and adverse effect on interstate commerce;

and further, are not means reasonably and plainly

adapted to the legitimate end of removing substan-

tial adverse effects on interstate commerce; and are,

therefore, unlawful and contrary to the Constitu-

tion. These provisions are § 507(d) [80 U.S.C. § 1257

(d)], which requires the submission of an acceptable

reclamation plan containing postmining land use

consideration requirements as a part of the permit

application; § 508(a) (2), (8), (4), (8) and (10)

[30 U.S.C. § 1258(a) (2), (8), (4), (8) and (10)],

requiring that the reclamation plan must contain in-

formation regarding the premining and postmining

use and productivity of the land; § 515(b)(19) and

(20) [80 U.S.C. § 1265(b)(19) and (20)] to the

extent set forth in “the prime farmland provisions”,

pertaining to approval of the postmining land use;

and §510(b)(1) and (2) [380 U.S.C. § 1260(b) (1)

and (2)], to the extent that it requires that a permit

application be denied or approved depending on ap-

proval of the postmining land use or any change in

postmining land use from the premining land use.

20a

Il.

TENTH AMENDMENT

(A) Issues:

Plaintiffs challenge the same provisions in Title

V as set forth above in Part I(A)—Commerce Clause

—Issues. Plaintiffs contend these provisions when

combined with those provisions of Title V which re-

quire that a State submit a State program in full

conformity with the Act and the Secretary’s regula-

tions [§ 508(a)(1) and (7), 30 U.S.C. § 12538(a)

(1) and (7)], or that the Federal Government

through the Department of the Interior and OSM will

promulgate a Federal program [§ 504, 30 U.S.C.

§ 1254], constitute displacement, or regulation, or al-

teration of the operation and structure of traditional

or integral governmental functions essential to the

sovereignty of the States contrary to the Tenth

Amendment. The plaintiffs contend that the provis-

ions challenged are in fact land use control and plan-

ning dictates, which also require and limit State

governmental structures and procedures in land use

control and planning, a traditional or integral gov-

ernmental function or area of the sovereignty of the

States. .

The plaintiffs further contend that the land use

control and planning policies in these provisions will

have significant adverse effects for the State of In-

diana, and that since these provisions are not based

upon alleviating air or water pollution, when Federal

and State interests are balanced, the State interests

are paramount.

On the Tenth Amendment issues asserted by the

parties, it is clear that the Tenth Amendment is a

2la

limitation upon congressional power under the Com-

merce Clause. National League of Cities v. Usery,

426 U.S. 833, 842-43 (1976). This Court’s inquiry

pursuant to National League of Cities is whether the

provisions of the Act being attacked are (1) a con-

gressional enactment (in the exercise of ccmmerce

clause powers) . . . to displace, regulate or sig-

nificantly alter (2) the management, structure or op-

eration of (3) a traditional or integral governmental

function .. .” of the States. Ambersbach v. City of

Cleveland, 598 F.2d 1033, 1035-36 (6th Cir. 1979)

(footnotes omitted). In some situations a balancing

of Federal and State interests may be required be-

cause the Court in National League of Cities left

standing Fry v. United States, 421 U.S. 542 (1975).

See also National League of Cities, 426 U.S. at 856

(Blackmun, J., concurring), where a balancing ap-

proach interpretation is made of the Court’s opinion.

(B) Findings:

1. As a matter of land use policy and control, it

is evident from a review of the area of prime farm-

land in the State of Indiana as defined by the Secre-

tary of Agriculture that it is for the most part con-

centrated north of the surface mining coa! producing

areas in the southwestern Indiana. The six counties

in southwestern Indiana which account for 80% of

Indiana surface-mined coal account for less than 5%

of the total production of agricultural commodities

as corn, wheat, and soybeans in the State of Indiana

[ Plaintiffs’ Exhibits 13 and 14]. Also to be noted is

that the Agricultural Stabilization and Conserva-

tion Service in 1978 paid Indiana farmers not to pro-

duce crops on 369,135.9 acres [Plaintiffs’ Exhibit 20].

What is “prime farmland” from the standpoint of

land use control and planning within the State of

22a

Indiana may well not be prime farmland as estab-

lishe. by the Secretary of Agriculture. Moreover,

as to the highest and best land use subsequent to

mining of prime farmland, it could well not be farm-

ing but rather forestry [Plaintiffs’ Exhibit 41], or

other uses.

2. From a land use control and planning consider-

ation, the requirement that all mined prime farm-

land be returned to a farm use, at least through the

release of bond, will not serve to decrease the loss

of prime farmland to urban and water uses. How-

ever, if surface mined prime farmland is allowed

to be returned to other uses which could well occur

because of the suitable time which surface mining

presents for a change in the use of land [see H.R.

Rep. No. 95-218, 95th Cong., Ist Sess. 94 (1977);

Conclusion No. 18, infra], such surface mined prime

farmland could be converted to industrial, residen-

tial or recreational uses and prevent other non-mined

prime farmland from being converted to such uses.

3. The coal deposits in Indiana are part of what

is known as the Illinois Coal Basin or Eastern In-

terior Coal Basin. The center of the Basin is in

southeastern Illinois. Only the eastern fringe of the

basin lies within Indiana. From the center of the

Basin in Illinois, which is up to 1,000 feet below

the surface, the coal seams rise toward the surface in

Indiana. Surface mining takes place along the peri-

phery of the Basin in Indiana. Because of their

depth, the coal deposits located in Illinois near the

center of the Basin cannot be mined by the surface

method. [Plaintiffs’ Exhibits 5 and 12.]

4. The portion of the Illinois Coal Basin lying

within Indiana is located along the west central

border of the State and extends southward to the

23a

southwestern portion of the state. The major por-

tion of such reserves is concentrated in southwest

Indiana. [Plaintiffs’ Exhibit 1.] Prime farmland in

Indiana is dispersed throughout the State, with the

major portion being in the northern and central parts

of the state; only a small portion of it is in the coal

area of southwestern Indiana. [Plaintiffs’ Exhibits

2 and 4.] Thus, the vast majority of Indiana’s prime

farmland is not located coincidentally with the

State’s surface mineable coal reserves. Nevertheless,

nearly all of plaintiffs’ permit areas contain some

prime farmland, some as much as 100% [Plaintiffs’

Exhibits 7 and 8].

5. The major coal producing counties in Indiana

are heavily dependent upon the surface coal mining

industry for their financial well being, both private

and public, and the delivery of their governmental

services to the extent that, in one county (Warrick),

over 50% of the total county revenues from personal

or real property taxes is derived from the land use

of the surface coal mining industry. [Plaintiffs’ Ex-

hibits 15-19.] Further, the entire Indiana electrical

utility industry is inextricably tied to the land use of

surface mining. The surface coal mining method ac-

counts for 99% of Indiana’s total coal production.

Over 83% of Indiana’s coal production is sold to

Indiana public utilities under long-term coal con-

tracts. [Plaintiffs’ Exhibit 6.] Major industry has

located in southwest Indiana because of the ready

supply of coal, such as the Alcoa operation in Warrick

County, which employs over 3,500 persons. [Plain-

tiffs’ Exhibit 11.]

6. The Indiana coal deposits are such that it is

not economical at the present time to recover the coal

by the underground mining method. Illinois and

24a

Western Kentucky coal seams are thicker and cleaner

with better roof and floor conditions for underground

mining. In contrast, Indiana seams are thinner, un-

dulatory, erratic and multi-bedded with numerous

shale partings. Further, Indiana has a known fault

running parallel to the Wabash River with contempor-

aneous post depositional channels that disrupt coal

seams and result in adverse roof conditions. [Plain-

tiffs’ Exhibit 12.] Also, Indiana underground min-

able deposits are of insufficient size. Approximately

83.8% of the coal produced in Indiana in 1977 was

sold to Indiana utilities [Plaintiffs’ Exhibit 6] under

long-term contracts which generally require large

blocks of coal of up to 50,000,000 tons. There are

no underground mineable coal deposits of that mag-

nitude in Indiana. [Plaintiffs’ Exhibit 12.]

7. The coal reserves in Illinois are significantly

more conducive to underground mining methods, than

are those in Indiana. While 99% of Indiana’s coal

is produced by surface mining, over one-half (55%

or 33,000,000 tons) of Illinois’ annual coal produc-

tion is produced by underground mining. There is

only one underground mine planned in Indiana in the

future, while eight new surface mines are planned.

In Illinois, however, there are plans for 21 new un-

derground mines and only nine surface mines. [Tr.

116.]

8. With respect to the use of coal in Indiana,

which is primarily by Indiana public utilities, a shift

has begun from Indiana surface mined coal] to Illinois

underground mined coal, at least part of which shift

is because of the operating costs attributable to the

provisions of the Act being challenged. The current

delivered cost of Indiana surface mined coal to In-

diana utilities is $1.07 per million Btu. The current,

25a

delivered cost of Illinois underground mined coal

to Indiana utilities is $1.08 per million Btu. [Tr.

107-10; Plaintiffs’ Exhibit 37.] In 1981 it is projected

that only 28% of the coal required for new coal-

fired electrical generators in Indiana will come from

Indiana, while 29% will come from Illinois. [Tr.

114; Plaintiffs’ Exhibit 38.] The remainder will

come from other States, as Kentucky.

9. Thus, the express intent of the Act [see Con-

clusions, infra] to shift surface coal mining opera-

tions into underground coal mining operations will

be achieved, and surface coal mining land use will

probably shift from the State of Indiana inte under-

ground mining in Illinois and/or Kentucky. [Tr.

113-14.] As shown by U.S. Department of Energy

projections, this shift has already begun [Plaintiffs’

Exhibit 38]. These results are even more certain

when Findings Nos. 1 and 2, Part IV(A) are con-

sidered.

10. Prior to the enactment of the Act, the Indiana

Department of Natural Resources, Division of Recla-

mation had a total staff of approximately nine em-

ployees and an annual budget of approximately

$236,578. In order to comply with the interim phase

requirements of the Act and federal regulations, the

State of Indiana was forced to increase the staff and

budget of the Division to 29 employees and $587,063

respectively [Plaintiffs’ Exhibit 22].

1. The Act [§ 503, 30 U.S.C. § 1253] requires

that the States submit a State program conforming

with “the requirements of this Act” and “regulations

issued by the Secretary pursuant to this Act” [§ 508

(a)(1) and (7), 30 U.S.C. § 1253(a) (1) and (7)],

26a

which program must be approved by the Secretary, or

else the Federal Government will promulgate a pro-

gram for the State [$ 504(a), 30 U.S.C. § 1254(a) J.

This Court must view the portions of the Act chal-

lenged by the plaintiffs as if the Federal Government

were going to administer the Act under a Federal

program in Indiana, for if sovereign functions of a

State are dictated and confined by the Act under

threat of a Federal program, it is not relevant that a

State may ultimately “choose” under threat of Fed-

eral usurpation of a sovereign function to have a

State program, make such decisions, and structure

its government accordingly. If the Federal Govern-

ment does not have the power to directly usurp func-

tions and control the areas of the Act being chal-

lenged, then it is equally without the power to indi-

rectly require such to be done by the States under

the threat of Federal usurpation. If these provisions

are “incapable of standing by themselves, then the

provisions of the Act must fall.” Steward Machine

Co. v. Davis, 301 U.S. 548, 585-86 (1987); National

League of Cities, swpra. The fact that certain of

the decisions might be made by the States under a

State program is not sufficient. A State program

must comport fully with the Act and regulations

which contain inherent Federal decisions already

made and which require that the States adopt cer-

tain governmental structures and procedures, or else

have a Federal program. These considerations are

apparent on the face of the Indiana Act passed to

authorize the executive branch to submit an Indiana

program, where the General Assembly [IC 13-4.1-1

et seq.] expressed the following:

See. 1. The general assembly finds that:

(1) P.L. 95-87, the federal Surface Mining

Control and Reclamation Act of 1977, provides

27a

that the federal government will assume control

of the regulation of the surface coal mining op-

erations and reclamation procedures within In-

diana unless the state of Indiana enacts laws as

specified by the federal act.

(2) The federal act in many parts constitutes

an intrusion into land use planning and control,

an integral and traditional aspect of the sov-

ereignty of the state of Indiana, its people, and

political subdivisions, as well as numerous other

state and local governmental functions as re-

served to them by the Tenth Amendment of the

Constitution of the United States.

* * *

(4) The threat that the federal government

will regulate the surface coal mining operations

and reclamation procedures, including land use

planning and control, if the state of Indiana

does not enact the necessary legislation for a

state program, is coercive. It makes the over-

riding consideration whether to prevent further

federal encroachment upon and regulation and

control of the state, its people, and local in-

dustry, rather than what is in the best interest

of the people of the state of Indiana, consider-

ing local employment opportunities, financing

of local government, and the use of local and

state natural resources with consideration for the

geography and terrain of the area.

(5) The state of Indiana has challenged the

federal act in a lawsuit presently pending be-

fore the United States District Court for the

Southern District of Indiana, Indianapolis Di-

vision, entitled... .

2. Regardless of whether the required Federal

land use policies, the required governmental struc-

tures, and the required procedures for implementing

28a

land use control and planning policy decisions under

the Act are instituted in Indiana through a federally

mandated and confined State program or through a

Federal program, the issues are the same. Even if a

State program is instituted in Indiana, the Federal

Government cannot do indirectly that which is un-

constitutional to accomplish directly. In National

League of Cities, had the Federal Government not

legislated that the States pay certain minimum wages

to employees which indirectly altered the States’

choices as to the delivery of certain governmental

services to their citizens, but attempted to directly

usurp the delivery of these governmental services, it

would have been an even clearer violation of the Tenth

Amendment. If Indiana does submit a State pro-

gram, it will have to comport fully with both the

Act and the Secretary’s regulations, which contain

explicit and implicit federal land use control and

planning policies and decisions, as well as required

State governmental structures and procedures for

further land use decisions. This constitutes Federal

regulation of the States as States as under National

League of Cities. If there is no State program, then

the Federal Government will directly usurp the func-

tions which would be an even clearer violation of

the Tenth Amendment than that which was pro-

hibited in National League of Cities.

3. Land use control and planning is a traditional

or integral governmental function or area of State

sovereignty. This is required because of the very

diverse geography, climate, natural resources, popu-

lation density and economic structures within the

various States, and this was expressly recognized by

Congress in §101(f) [80 U.S.C. § 1201(f)] of the

Act. Land use control and regulation has historically

29a

always been exercised by State governments. Land

use planning and control through zoning laws and

their provisions “are peculiarly within the province

of state and local legislative authorities.” Warth v.

Seldin, 422 U.S. 490, 508 n.18 (1975). It is one of

the most severe and restrictive governmental powers,

considering its effect on individuals’ property and

on local governments as cities, counties and States.

Land use planning and control most directly affect

the people, industry and governmental entities di-

rectly connected with the land involved. In many

situations it is the presumed local benefit-burden to

the land owner and community in question which pre-

vents a Fifth Amendment violation. The broader the

public interest which defines that to be protected

and the broader the constituency to which public

officials must answer, the more diluted and non-

existent are the local “benefits and burdens” on which

the use restrictions are legally based. See Penn Cen-

tral Transp. Co. v. New York City, 488 U.S. 104, 133

(1978).

4, The “prime farmland’ provisions combine to

have prime farmland defined by regulations of the

Secretary of Agriculture, with an applicant’s permit

being conditioned upon a commitment to a postmin-

ing farm use, and require a postmining farm use at

least until the release of the bond, which will not be

released until productivity has reached equivalent

levels of yield as non-mined prime farmland in the

surrounding area under similar levels of manage-

ment [§ 510(d)(1), 30 U.S.C. § 1260(d)(1), and

§ 519(c) (2), 30 U.S.C. § 1269(c) (2)].

5. This period of postmining farming in order to

achieve levels of productivity before the release of a

bond could take up to ten years [§ 515(b) (20), 30

80a

U.S.C. § 1265(b) (20)]. The required level of pro-

ductivity on prime farmland cannot be returned with-

out a protracted period of farming. See OSM Com-

ments to 30 C.F.R. § 823.15, wherein it is stated:

According to Grandt (1978, p. 65) approximately

5 years’ growth of deep-rooted legumes, such as

alfalfa and grasses, on sites where the topsoil has

been replaced should help restore the soil quality

for cropland uses. ... To ensure minimum de-

lay in restoring the productive capacity of prime

farmland, a 10-year limit has been placed on the

time which can elapse between soil replacement

and the initiation of the [3-year] performance

test for revegetation success. [44 Fed. Reg.

15,287 (1979).]

6. These “prime farmland provisions” are per se

land use control and planning decisions which will be

implemented in Indiana either by a State program

which cannot vary these provisions, or by a Federal

program.

7. The expressions of the congressional leaders at

the time of the introduction of the prime farmland

provisions demonstrate the intent that such land

should be returned to a use of farming and that this

is explicitly required on the face of the prime farm-

land provisions. Senator Percy stated from the floor

at the time of the introduction:

For the first time, the Federal Government

would be taking into account that these prime

agricultural lands are an invaluable resource

to us, and we cannot simply pave over them, we

cannot simply urbanize them all—and we simply

cannot strip mine them, unless we assure our-

selves that all prime lands that are mined will be

returned to their original use and their original

level of productivity. [123 Cong. Rec. S8,105

(daily ed. May 20, 1977); emphasis added. ]

3la

8. This was also stated as the reason for the

absence of a variance~provision for prime farmland.

Senator Culver stated:

Under the current bill the language states

that an applicant for a new permit to strip mine

must demonstrate that he can restore the land

affected to a condition at least fully capable of

supporting the uses which it was capable cf sup-

porting prior to any mining, or higher or better

uses.

It is true, as the floor manager of the bill sug-

gests, that implicit in this is that a reasonable

person may interpret it, and so construe it, that

a restoration to prime agricultural land use

would be a minimal essentiality under that lan-

guage. But that caveat of a higher or better use

is the hooker. That is the loophole you can drive

a truck through. I shall tell why.

The effect of this amendment is to set a stand-

ard for reclamation of prime farm lands. With-

out this amendment, someone in the short term

can determine that a better use is a recreational

use; a better use is a residential use; a higher

use is an industrial use. We are giving all that

discretionary authority to some bureaucrat.

I do not want to do that... . [123 Cong. Ree.

S&,111 (daily ed. May 20, 1977); emphasis

added. ]

9. The absence of va ‘ance provisions from the

prime farmland provisions, and from the topsoil and

the approximate original contour provisions, at least

as meaningful to Indiana, demonstrates the postmin-

ing land use control and planning aspects of these

provisions. While in other provisions which are ap-

plicable only to other parts of the country, i.e., moun-

taintops and steep slopes [§515(c) and (e), 30

32a

U.S.C. § 1265(c) and (e)], variances have been pro-

vided based on “equal or better economic or public

use of the affected land, as compared with premining

use.” The prime farmland, original contour and top-

soiling provisions as applicable in the Midwest have

no meaningful variances. Implicit is that there is no

higher and better postmining land use than is pro-

vided by the prime farmland, approximate original

contour and topsoiling provisions in Indiana. This

was the express congressional intent of disallowing

variances as set forth in the Senate Report on the

bill that evolved into the Surface Mining Act:

[T]he Committee did recognize that there are

some valid and important reasons for allowing

limited variances to prescribed standards of the

bill, where such variances provide equal or bet-

ter protection to the environment, and result in

a higher postmining land use. [S. Rep. No. 95-

128, 95th Cong., lst Sess. 55 (1977); emphasis

added. ]

10. In commenting on the variance allowable from

the approximate original contour in mining on steep

slopes, it was stated:

[T]he technology of reclamation has come a long

way. If the law is framed wisely and reasonably

—without rigid contour requirements—there is

no reason why further beneficial land uses can-

not be carried out on reclaimed land... .

* * *

It must be borne in mind that protection of

environmental values does not in every instance

require return to an original contour. [123

Cong. Rec. $8,101 (daily ed. May 20, 1977) (re-

marks of Senator Byrd).]

33a

Thus, it is clear that the approximate original con-

tour provision was enacted by Congress based upon

land use considerations, and that the failure to pro-

vide such variances on prime farmland within the

Midwest is a Federal land use decision that .no

higher or better use exists for such land.

11. The Act as applied in Indiana which contains

no steep slopes and will not allow the State to make

any variance in its program, nor will a Federal pro-

gram have any variances, from the prime farmland

or approximate original contour requirements or top-

soiling requirements due to the express land use

planning policy decisions of the Federal Government.

12. Other provisions require, as a condition to

granting a permit to surface mine, that the regula-

tory authority approve changes in the postmining

land use. Provisions of the Act also require that

a proposed postmining land use differing from a pre-

mining land use be approved by a regulatory au-

thority which either directly mandate state govern-

mental structures or usurp the function in land use

planning and control policy. See Part I(C), Concelu-

sion No. 4 setting forth this effect from § 507(d)

[380 U.S.C. § 1257(d)], § 508(a) (2), (3), (4), (8)

and (10) [80 U.S.C. § 1258(a)(2), (3), (4) (8)

and (10)], § 515(b) (19) and (20) [80 U.S.C. § 1265

(b) (19) and (20)], and §510(b)(1) and (2) [30

U.S.C. § 1260(b)(1) and (2)]. These provisions

resulted in the Secretary’s regulations [30 C.F.R.

§ 816.133] and the definition of “land use” in 30

C.F.R. § 701.5, which categorizes the various land

uses and delineates that a change of the postmining

land use from one of the categories set forth to an-

other “shall be considered as a change to an alterna-

tive land use which is subject to approval by the

regulatory authority.”

34a

13. The Congressional intent to regulate the use

of land is shown in the legislative history, such as

the following:

[T]he permit process requires the submission

and approval of postmining land use and thus is

designed to elicit an evaluation of the operator’s

plan and ability to return the land to a useful

condition. ...

. . . [S]urface mining also presents possible

land planning benefits as such mining involves

the opportunity to reshape the land surface to

a form and condition more suitable to man’s

uses. [H.R. Rep. No. 95-218, 95th Cong., 1st

Sess. 93-94 (1977); emphasis added. ]

14. It is self-evident on the face of the provisions

‘ concerning areas unsuitable for surface coal mining

[§ 522, 30 U.S.C. § 1272] that it is directed solely

at land use planning and control considerations

through required government structures. Further,

§ 522(e)(4) [80 U.S.C. §1272(e)(4)] mandates

changes or a Federal usurpation of Indiana County

Commissioners’ or the State Highway Department’s

authority to regulate county anc state road reloca-

tions and closings.

15. That the foregoing provisions are directed pri-

marily at land use control and planning policies is

further evident from the fact that they are not re-

lated to control of air or water pollution as previ-

ously found by the Court. Additionally, in the in-

stance of the prime farmland provisions, the use of

farming is in fact a major contributor to water pol-

lution by sedimentation.

16. The foregoing provisions require explicit gov-

ernmental procedures and structures for land use

planning and control, and contain explicit land use

35a

judgments which will either be implemented through

direct Federal usurpation in a Federal program or

mandated upon States to be contained within a State

program, and constitute displacement, regulation and

altering of the management structure and operation

of the traditional area of State sovereignty or inte-

gral governmental function of land use planning and

control. The foregoing provisions are, therefore, con-

trary to the Tenth Amendment.

17. All of the above provisions are part of a Fed-

eral land use policy of making surface mining an

unpreferred land use to underground mining as well

as farming, which is expressly set forth on the face

of the Act in §101(b) [80 U.S.C. § 1201(b)], § 102

(k)], and §522[80 U.S.C. § 1272], as well as in

§515(b)(12) [80 U.S.C. § 1265(b)(12)], which

prohibits surface mining near underground mining

regardless of prior rights questions. The Interagency

Task Force Report establishes that the original prime

farmland provisions were based on the assumption

that sufficient coal existed which could be mined by

the underground method so that surface coal mining

was unnecessary. The Report found these provisions

were based on ‘‘two studies on the effects of surface

mining on prime farmlands in Illinois, one of which

was funded by the Department of Health, Education,

and Welfare, and the other conducted by Jack Doyle

of the Environmental Policy Center” [Report, p. 17],

which studies indicated:

So long as there are deep mineable coal reserves

in the quantities found in Illinois, there is no

need to gamble away long term productive agri-

cultural capacity at the hand of short-term

mining economies. [Report, p. 17.]

86a

18. This policy is a land use control and planning

policy which when combined with the express func-

tions of the provisions set forth above makes it even

clearer that these provisions are a displacement or

regulation of the management structure and opera-

tion of the traditional governmental function of the

States in the area of land use control and planning

and are, therefore, contrary to the Tenth Amend-

ment.

19. Under any balancing requirement, the State in-

terest is paramount. The water pollution control pro-

visions are unaffected. Any adverse substantial effect

on interstate commerce which is alleviated by the

foregoing provisions is trivial at best, while the harm-

ful effects on land use control and planning for In-

diana, as well as the extent of the intrusion, are

great.

III.

SUBSTANTIVE DUE PROCESS

(A) Issues:

Plaintiffs challenge “the prime farmland provi-

sions” and approximate original contour provision

[§ 515(b) (3), 80 U.S.C. § 1265(b)(3)] as violat-

ing the due process and equal protection guarantees

of the Fifth Amendment. Plaintiffs contend that the

absence of variances for the prime farmland provi-

sions, and the absence of variances for the approxi-

mate original contour provisions for lands within the

Midwest, and Indiana in particular, as are provided

for mining on steep slopes and mountaintops, consti-

tutes discriminatory, arbitrary, and irrational treat-

ment in violation of the Fifth Amendment, in that

37a

there is no legitimate Federal or national interest to

be served by or to justify the lack of variances.

The Court’s inquiry with respect to the discrimi-

natory or selective nature of the foregoing provisions

is whether there is an overriding national interest

which justifies the discriminatory treatment, and

whether there is a legitimate basis for presuming

that the selectivity in application of the provisions is

actually intended to serve that interest. Hampton v.

Mow Sun Wong, 426 U.S. 88, 100, 108 (1976). The

Court must further determine whether the lack of

variances for land within Indiana and the Midwest

is rational in light of the purported constitutional

end—the alleviation of air or water pollution.

(B) Findings:

1. Indiana does not contain mountaintops or steep

slopes.

2-3. Findings No. 1 and 2, Part II, are incorpo-

rated by reference.

4. The prime farmland and approximate original

contour requirements become senseless and _ tanta-

mount to economic waste where they are not neces-

sary to a postmining land use—as commercial and

industrial purposes, residential or housing purposes,

or recreational purposes.

1. The lack of variance procedures to the prime

farmland provisions, and the limitation of the vari-

ance from the approximate original contour require-

ment [§ 515(b) (3), 30 U.S.C. § 1265(b) (3) ] to min-

ing on mountaintops and steep slopes, discriminate

against the mining operators and States, as Indiana,

within the Midwest which have significant coal re-

38a

serves under prime farmland and no or few steep

slopes or mountaintops.

2. There is no rational basis to support that the

discriminatory treatment toward plaintiffs and the

States in the Midwest, or that the failure to grant

plaintiffs equal variances, furthers a legitimate “na-

tional interest.”’ For selective or discriminatory Fed-

eral legislation to be valid under the Fifth Amend-

ment, there must be an overriding national interest

justifying such difference in treatment, and there

must be “a legitimate basis for presuming that the

rule was actually intended to serve that interest.”

Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 103

(1976). Furthermore, for the provisions to be a law-

ful exercise of the Commerce Clause power, the ra-

tional basis for the discriminatory treatment must

be justified by a “substantial and adverse effect on

interstate commerce’.

3. There is no overriding national interest justify-

ing the lack of variances for the prime farmland and

approximate original contour provisions on lands

within the Midwest, and particularly Indiana, so as

to justify the discriminatory treatment imposed upon

plaintiffs and the State of Indiana. The variances

provided for the approximate original contour provi-

sions in the case of mining on steep slopes and moun-

taintops were based upon land use considerations and

not on matters related to air or water quality. The

failure to provide for such variances i» the Midwest,

including variances for the prime farmland provi-

sions, demonstrates that ‘Congress considered there

to be no higher or better use for lands within the

Midwest which is not, however, an overriding na-

tional interest, particularly since the regulation of

the use of lands within the States is not a legitimate

federal interest in the face of the Tenth Amendment.

cva

4. in addition, the prime farmland and approxi-

mate original contour provisions are irrational, arbi-

trary and capricious requirements in situations where

they are not reasonably necessary to achieve a par-

ticular postmining use—as where the land will be

used for commercial and industrial purposes, resi-

dential or housing purposes, or recreational purposes.

Therefore, the prime farmland and approximate orig-

inal contour provisions constitute a deprivation of

substantive due process in violation of the Fifth

Amendment.

IV.

TAKING WITHOUT JUST COMPENSATION

(A) Issues:

Plaintiff coal companies challenge § 510(d) (1)

[380 U.S.C. §1260(d)(1)] and §519(¢e)(2) [30

U.S.C. § 1269(¢) (2) ] which require that to obtain a

permit an operator must demonstrate that he has the

“technological capability to restore such mined area,

within a reasonable time, to equivalent or higher

levels of yield as non-mined prime farmland in the

surrounding area under equivalent levels of man-

agement ...,” and the bond may not be released on

prime farmland until “soil productivity ... has re-

turned to equivalent levels of yield as non-mined land

of the same soil type in the surrounding area under

equivalent management practices. . . .” Plaintiffs

also challenge § 508(a)(2)(C) [30 U.S.C. § 1258(a)

(2)(C)] which requires that the premining produc-

tivity of the land under high levels of management

be set forth as a target level of yield in the reclama-

tion plan. Plaintiff coal companies contend that under

the state of the art it is scientifically and technologi-

40a

cally impossible to return surface mined prime farm-

land to equivalent levels of yield where the level of

management practice is a “high level of management

practice,” and therefore, they will be unable to mine

coal and their property will be taken without just

compensation contrary to the Fifth Amendment tak-

ing clause.

Plaintiff coal companies contend that § 522 [30

U.S.C. $1272], dealing with areas unsuitable for

surface mining whereby surface mining could be

prevented pursuant to subsections (a), (c) and (d),

and, further, where surface mining and surface

mining operations are prevented pursuant to § 522

(e)(4) and (5) [80 U.S.C. § 1272(e) (4) and (5)],

constitute a taking of their property without just

compensation in violation of the Fifth Amendment

taking clause.

(B) Findings:

1, There are no known studies conducted by agri-

cultural schools or other published scientific data

which demonstrate that, using the required methods

of reclamation for prime farmland, prior levels of

yield under high levels of management can be

achieved. [Tr. 58.]

2. The research and studies conducted to date

demonstrate that, at best, prior productivity can be

achieved only under basic levels of management. The

difference between productivity under basic levels of

management and high levels of management is ap-

proximately one-third. [Tr. 61.] That is, yields

obtained under high levels of management are ap-

proximately one-third greater than those obtained

under basic levels of management.

4la

3. Plaintiff AMAX Coal Company intends to mine

on prime farmland in the immediate future. [Plain-

tiffs’ Exhibits 33 and 34.] On each of these pieces of

property, plaintiff AMAX Coal Company owns only

the coal; it does not own the surface rights. There-

fore, unless plaintiff AMAX Coal Company is per-

mitted to mine the prime farmland, it will be deprived

of mining the coal which is the only value of the coal,

and the sole interest of said plaintiff in the property

will be taken. Neither plaintiffs nor any other mine

operators can demonstrate that prime farmland can

be restored to prior levels of productivity under high

levels of management.

1. In mining on prime farmland, the Act requires

that such land be reclaimed and restored to equivalent

levels of productivity under “high levels of manage-

ment,” at least where such level is the practice in

the surrounding area.

2. The Court having concluded as a matter of fact

that it is technologically impossible to reclaim prime

farmland in a postmining period so that equal or

higher levels of yield under high levels of management

practice can be achieved, the coal companies will be

prevented from mining coal under such land. Coal

in Indiana can be owned as a mineral interest and

if coal cannot be removed, the mineral interest is

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

393 (1922).

3. Similarly, §522(a), (c) and (d) [380 U.S.C.

§ 1272(a), (c) and (d)] provide a procedure to pre-

vent the removal of coal thereby destroying the

mineral interest.

42a

4, Sections 522(e)(4) and (5) [30 U.S.C. § 1272

(e)(4) and (5)] prohibit the removal of coal and

any other activity related to surface coal mining

operations in certain areas, again destroying the

mineral interest and owner’s rights.

5. These sections of the Act do not provide for

just compensation through eminent domain proceed-

ings. Pennsyivania Coal Co., supra. These sections

of the Act are, therefore, contrary to the taking

clause of the Fifth Amendment and are unlawful and

contrary to the Constitution of the United States.

PROCEDURAL DUE PROCESS

(A) Issues:

Plaintiffs challenge the constitutionality of § 518(c)

[30 U.S.C. § 1268(c)] of the Act, which requires

persons charged with a violation of the Act, regula-

tions or permit condition to prepay the full amount

of the proposed penalty for such alleged violation as

a condition precedent to contesting either the fact of

the violation or the amount of the proposed penalty.

Plaintiffs contend that such forced prepayment of

penalty violates the procedural due process require-

ment of the Fifth Amendment.

The Court’s inquiry is whether persons charged

with a violation of the Act, regulations or permit

condition are afforded a prior opportunity to be

heard before their property (the proposed monetary

penalty) is taken from them. Fuentes v. Shevin,

407 U.S. 67, 96 (1972). If such is not the case, the

Court must further inquire as to whether there is a

valid governmental interest that justifies postponing

43a

the hearing until after such property is taken. See

Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971).

1. Section 518 [30 U.S.C. § 1268] of the Act pro-

vides for the assessment of civil penalties against

any mining operator who violates any permit condi-

tion or provision of the Act or regulations, which

penalties can be as much as $5,000 per day for each

such violation. Pursuant to §518(c) [30 U.S.C.

§ 1268(c)], any operator charged with a penalty

may contest either the amount of the penalty or the

fact of a violation only by prepaying in full the

amount of the proposed penalty. The failure to pre-

pay such amount results in a waiver of all legal

rights to contest the violation or the amount of the

penalty.

2. All district courts which have addressed the

issue have held that § 518(c) [30 U.S.C. § 1268(c)]

violates the procedural due process guarantees of the

Fifth Amendment. See Virginia Surface Mining and

Reclamation Ass’n, Inc. v. Andrus, No. 78-0224-B

(W.D.Va. Jan. 3, 1980), slip op. at 37-38; Star Coal

Co. v. Andrus, No. 79-171-2 (S.D.lowa Feb. 13,

1980), slip op. at 19 (hearing on motion for pre-

liminary injunction).

3. Section 518(c) [380 U.S.C. § 1268(c)] of the

Act violates the due process clause of the Fifth

Amendment contrary to Fuentes v. Shevin, 407 U.S.

67 (1972). In the situations encompassed by § 518(c)

[380 U.S.C. § 1268(c)], there are no extraordinary

circumstances with a valid governmental interest at

stake so as to justify the requirement of prepaying

the full amount of the proposed penalty in escrow in

order to be entitled to a hearing on the fact of a

44a

violation or the amount of the proposed penalty, or

to justify the requirement that the failure to prepay

such amount in full constitutes a waiver of all legal

rights to contest the same. See Boddie v. Connecticut,

401 U.S. 371, 378-79 (1971).

4. The administrative procedure providing for an

informal conference before the assessment of the

proposed penalty [30 C.F.R. § 845.17-18] is insuf-

ficient to cure the constitutional infirmity of § 518(c)

[30 U.S.C. § 1268(c) }.

DATED this 10th day of June, 1980.

JAMES EK. NOLAND

U.S. District Judge

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

45a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Civil No. IP 78-500-C

STATE OF INDIANA;

OTIS R. BOWEN, M.D., Governor of the

State of Indiana;

JOSEPH D. CLOUD, Director of the

Indiana Department of Natural Resources; and

INDIANA DEPARTMENT OF NATURAL RESOURCES,

PLAINTIFFS

v8.

CECIL D. ANDRUS, as Secretary of the United States

Department of the Interior;

WALTER J. HEINE, as Director of the Office of

Surface Mining Reclamation and Enforcement;

OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT;

UNITED STATES DEPARTMENT OF THE INTERIOR;

and the UNITED STATES OF AMERICA, DEFENDANTS

Civil No. IP 78-501-C

INDIANA COAL ASSOCIATION ;

MEADOWLARK FARM, INC.;

AMAX COAL COMPANY, a division of AMAX INC.;

PEABODY COAL COMPANY; and

JOHN A. CONLON, a resident and citizen of

the State of Indiana, PLAINTIFFS

V8,

46a

THE UNITED STATES OF AMERICA;

THE UNITED STATES DEPARTMENT OF THE INTERIOR;

CecIL D. ANDRUS, as Secretary of the United States

Department of the Interior;

THE OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT;

and

WALTER J. HEINE, as Director of the Office of

Surface Mining Reclamation and Enforcement,

DEFENDANTS

ORDER AND JUDGMENT

This Court having previously made its Findings of

Fact and Conclusions of Law, the Court now renders

its judgment.

IT IS HEREBY ORDERED, ADJUDGED AND

DECLARED that:

1. The following provisions of the 1977 Surface

Mining Control and Reclamation Act, P.L. 95-87, 30

U.S.C. §§ 1201 et seg. [hereinafter the Act] are not

within any powers delegated to Congress pursuant to

the Constitution of the United States and are there-

fore unlawful as being contrary to the Constitution,

and such provisions are contrary to the Tenth Amend-

ment, even if they are an exercise of the Commerce

Clause power, and are, therefore, further unlawful

as contrary to the Constitution:

(a) §507(b) (16) [80 U.S.C. § 1257(b) (16) ];

(b) §701(20) [80 U.S.C. § 1291(20)];

cs Trait (3), (4), (8) and

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(1)

47a

§ 510(d)(1) [30 U.S.C. § 1260(d) (1)];

§ 515(b) (7) [30 U.S.C. § 1265(b) (7)];

§ 515(b) (19) [80 U.S.C. § 1265(b) (19) ]

insofar as that portion which provides

“.. achieve the approved postmining land

”».

use plan... .”;

§ 515(b) (20) [380 U.S.C. § 1265(b) (20)],

as to that portion which provides, “when

the regulatory authority approves a long-

term intensive agricultural postmining

land use” and further that portion “when

the regulatory authority issues a written

finding approving a long-term, intensive,

agricultural postmining land use as part

of the mining and reclamation plan. . .;”,

and any other part which requires any

post-mining land use.

§519(c)(2) [80 U.S.C. § 1269(c) (2)],

as to that portion which provides “.

until soil productivity for prime farm lands

has returned to equivalent levels of yield

as nonmined land of the same soil type in

the surrounding area under equivalent

management practices” ;

§ 515(b) (3) [30 U.S.C. § 1265(b) (3)];

§ 515(b) (5) [30 U.S.C. § 1265(b) (5)];

§ 522(a), (c), (d), (e)(4) and (5) [30

U.S.C. § 1272(a), (c), (d), (e)(4) and

(5)]; and

§510(b)(1) and (2) [380 U.S.C. § 1260

(b)(1) and (2)] to the extent that it re-

quires that a permit application be denied

or approved depending on approval of the

postmining land use or of any change in

48a

postmining land use from the premining

land use.

2. The following provisions of the Act are con-

trary to the procedural and substantive requirements,

including equal protection aspects, of the Due Process

Clause of the Fifth Amendment:

(a)

(b)

(c)

The provisions of the Act in Paragraph

1(a) through (h) hereof;

§ 515(b) (3) [80 U.S.C. § 1265(b) (3) ];

and

§518(c) [30 U.S.C. § 1268(c)].

3. The following provisions of the Act are con-

trary to the Taking Clause of the Fifth Amendment:

(a)

(b)

(c)

(d)

§ 510(d)(1) [80 U.S.C. § 1260(d) (1)];

§ 508(a)(2)(C) [80 U.S.C. § 1258 (a) (2)

(C)] as to that portion “the productivity

of the land prior to mining, including ap-

propriate classification as prime farm

lands, as well as the average yield of food,

fiber ... products ... obtained under high

levels of management;”

§ 519(c) (2) [380 U.S.C. § 1269(c) (2)] as

to that portion which provides that a bond

on prime farmland may not be released

“until soil productivity for prime farm

lands has returned to equivalent levels of

yield as nonmined land of the same soil

type in the surrounding area under equiv-

alent management practices .. .”; and

§ 522(a), (¢), (d), (e)(4) and (5) [30

(i. § 1272(a), (c), (d), (e)(4) and

49a

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Secretary of the Department of

the Interior and the Director of the Office of Surface

Mining Reclamation and Enforcement are hereby

enjoined from taking any measures to enforce or give

any effect to the provisions of the Act set forth in

Paragraphs 1, 2, or 3 hereof, including but not

limited to enforcement, the promulgation of regula-

tions, approval or disapproval of State programs,

promulgation or implementation of a Federal pro-

gram, or denying or withholding funds or grants

which measures or actions are taken under sections

of the Act not set forth in this Judgment, but which

measures or actions are based in whole or in part on

the sections of the Act set forth in Paragraphs 1, 2,

or 3 hereof.

ALL OF WHICH IS ORDERED, ADJUDGED

AND DECREED by the Court this 10th day of June,

1980.

JAMES EK. NOLAND

U.S. District Judge

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

50a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Civil No. IP 78-500-C

STATE OF INDIANA, ET AL., PLAINTIFFS

Vv.

CECIL D. ANDRUS, ET AL., DEFENDANTS

Civil No. IP 78-501-C

INDIANA COAL ASSOCIATION, ET AL., PLAINTIFFS

Vv.

DEPARTMENT OF THE INTERIOR, ET AL.,

DEFENDANTS

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that the federal defendants

appeal to the Supreme Court of the United States

from the final order and judgment entered in this

action on June 1 1980.

5la

The appeal is taken pursuant to 28 U.S.C. 1252

and 2101.

DATED:

Respectfully submitted,

VIRGINIA DILL MCCARTY

United States Attorney

HAROLD R. BICKHAM

Assistant United States Attorney

ALFRED T. GHIORZI

Attorney, Department of Justice

Land & Natural Resources

Division

Ben Franklin Station

P.O. Box 7415

Washington, D.C. 20044

June 16, 1980

52a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

No. P 78-500-C

STATE OF INDIANA, ET AL.

v8.

CECIL D. ANDRUS, ET AL.

No. IP 78-501-C

INDIANA COAL ASSOCIATION, ET AL.

v8.

DEPARTMENT OF INTERIOR, ET AL.

ENTRY DENYING APPLICATION

FOR A STAY OF ORDER

This matter is before the Court upon the applica-

tion of counsel for the federal defendants in the

above entitled cause of action requesting an order

staying enforcement of the final order entered by

the Court on June 10, 1980, counsel for the plaintiffs

having responded with a brief in opposition to the

requested stay. Whereupon the Court, having ex-

amined the motion and briefs filed in support thereof

and opposition thereto, and having concluded that a

stay is not merited under the present circumstances,

53a

hereby DENIES the motion for a stay pending ap-

peal.

IT ISSO ORDERED.

DATED this 25th day of June, 1980.

JAMES E. NOLAND

U.S. District Judge

54a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A-1179

CECIL D. ANDRUS, Secretary of the

Interior, ET AL., APPELLANTS

INDIANA, ET AL.

ORDER

UPON CONSIDERATION of the application of

the Solicitor General and the opposition filed thereto,

IT IS ORDERED that the judgment of the United

States District Court for the Southern District of

Indiana, Nos. IP 78-500-C and IP 78-501-C, entered

June 10, 1980, be, and the same is hereby, stayed

pending the filing and disposition of the appeal by

this Court.

/s/ John Paul Stevens

JOHN PAUL STEVENS

Associate Justice of the

Supreme Court of the

United States

Dated this 2nd day of July, 1980.

55a

APPENDIX F

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 8, of the United States Constitu-

tion provides in pertinent part:

The Congress shall have Power To * * * regulate

Commerce with foreign Nations, and among the sev-

eral States, and with the Indian Tribes; * * * And

To make all Laws which shall be necessary and proper

for carrying into Execution that foregoing Powers

* +* *

The Fifth Amendment to the Constitution provides

in pertinent part:

No 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 compensation.

The Tenth Amendment to the Constitution provides:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.

Section 507(b) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. (Supp. I) 1257

(b), provides in pertinent part:

The permit application shall be submitted in a

manner satisfactory to the regulatory authority

and shall contain, among other things—

bo * * *

(16) for those lands in the permit application

which a reconnaisance inspection suggests may

56a

be prime farm lands, a soil survey shall be made

or obtained according to standards established

by the Secretary of Agriculture in order to con-

firm the exact location of such prime farm lands,

tt” **.

Section 508(a) of the Surface Mining Act, 30

U.S.C. (Supp. I) 1258(a), provides in pertinent

part:

Each reclamation plan submitted as part of a

permit application pursuant to any approved

State program or a Federal program under the

provisions of this chapter shall include, in the

degree of detail necessary to demonstrate that

reclamation required by the State or Fedearl

program can be accomplished, a statement of:

* * * * *

(2) the condition of the land to be covered

by the permit prior to any mining including:

(A) the uses existing at the time of

the application, and if the land has a

history of previous mining, the uses

which preceded any mining; and

(B) the capability of the land prior

to any mining to support a variety of

uses giving consideration to soil and

foundation characteristics, topography,

and vegetative cover, and, if applicable,

a soil survey prepared pursuant to sec-

tion 1257(b) (16) of this title; and

prior to mining, including appropriate

classification as prime farm lands, as

well as the average yield of food, fiber,

forage, or wood products from such

lands obtained under high levels of

management;

57a

(3) the use which is proposed to be made

of the land following reclamation, including

a discussion of the utility and capacity of

the reclaimed land to support a variety of

alternative uses and the relationship of such

use to existing land use policies and plans,

and the comments of any owner of the sur-

face, State and local governments or agen-

cies thereof which would have to initiate,

implement, approve or authorize the pro-

posed use of the land following reclamation;

(4) a detailed description of how the pro-

posed postmining land use is to be achieved

and the necessary support activities which

may be needed to achieve the proposed land

use;

* % ak * *

(8) the consideration which has been given to

making the surface mining and reclamation op-

erations consistent with surface owner plans, and

applicable State and local land use plans and

programs;

* * * * *

(10) the consideration which has been given

to developing the reclamation plan in a manner

consistent with local physical environmental, and

climatological conditions * * *.

Section 510 of the Surface Mining Act, 30 U.S.C.

(Supp. I) 1260, provides in pertinent part:

(b) No permit or revision application shall be

approved unless the application affirmatively

demonstrates and the regulatory authority finds

in writing on the basis of the information set

forth in the application or from information

otherwise available which will be documented in

the approval, and made available to the appli-

cant, that—

58a

(1) the permit application is accurate

and complete and that all the requirements

of this chapter and the State or Federal pro-

gram have been complied with;

(2) the applicant has demonstrated that

reclamation as required by this chapter and

the State or Federal program can be ac-

complished under the reclamation plan con-

tained in the permit application ;

* * * * *

(d)(1) In addition to finding the application

in compliance with subsection (b) of this section,

if the area proposed to be mined contains prime

farmland pursuant to section 1257(b) (16) of

this title, the regulatory authority shall, after

consultation with the Secretary of Agriculture,

and pursuant to regulations issued hereunder by

the Secretary of Interior with the concurrence

of the Secretary of Agriculture, grant a permit

to mine on prime farmland if the regulatory

authority finds in writing that the operator has

the technological capability to restore such mined

area, within a reasonable time, to equivalent or

higher levels of yield as non-mined prime farm-

land in the surrounding area under equivalent

levels of management and can meet the soil re-

construction standards in section 1265(b) (7) of

this title. Except for compliance with subsec-

tion (b) of this section, the requirements of this

paragraph (1) shall apply to all permits issued

after August 3, 1977. .

Section 515(b) of the Surface Mining Act, 30

U.S.C. (Supp. I) 1265(b), provides in pertinent part:

General performance standards shall be ap-

plicable to all surface coal mining and reclama-

59a

tion operations and shall require the operation

as a minimum to—

* * * *

(3) except as provided in subsection (c)

of this section with respect to all surface

coal mining operations backfill, compact

(where advisable to insure stability or to

prevent leaching of toxic materials), and

grade in order to restore the approximate

original contour of the land with all high-

walls, spoil piles, and depressions eliminated

(unless small depressions are needed in or-

der to retaain moisture to assist revegetation

or as otherwise authorized pursuant to this

chapter): Provided, however, That in sur-

face coal mining which is carried out at the

same location over a substantial period of

time where the operation transects the coal

deposit, and the thickness of the coal de-

posits relative to the volume of the overbur-

den is large and where the operator demon-

strates that the cverburden and other spoil

and waste materials at a particular point

in the permit area or otherwise available

from the entire permit area is insufficient,

giving due consideration to volumetric ex-

pansion, to restore the approximate original

contour, the operator, at a minimum, shall

backfill, grade, and compact (where advis-

able) using all available overburden and

other spoil and waste materials to attain

the lowest practicable grade but not more

than the angle of repose, to provide ade-

quate drainage and to cover all acid-forming

and other toxic materials, in order to

achieve an ecologically sound land use com-

patible with the surrounding region: And

provided further, That in surface coal min-

60a

ing where the volume of overburden is large

relative to the thickness of the coal deposit

and where the operator demonstrates that

due to volumetric expansion the amount of

overburden and other spoil and waste ma-

terials removed in the course of the mining

operation is more than sufficient to restore

the approximate original contour, the op-

erator shall after restoring the approximate

contour, backfill, grade, and compact (where

advisable) the excess overburden and other

spoil and waste materials to attain the low-

est grade but not more than the angle of

repose, and to cover all acid-forming and

other toxic materials, in order to achieve an

ecologically sound land use compatible with

the surrounding region and that such over-

burden or spoil shall be shaped and graded

in such a way as to prevent slides, erosion,

and water pollution and is revegetated in

accordance with the requirements of this

chapter ;

* * * * *

(5) remove the topsoil from the land in

a separate layer, replace it on the backfill

area, or if not utilized immediately, segre-

gate it in a separate pile from other spoil

and when the topsoil is not replaced on a

backfill area within a time short enough to

avoid deterioration of the topsoil, maintain

a successful cover by ¢ 1ick growing plant

or other means thereafter so that the topsoil

is preserved from wind and water erosion,

remains free of any contamination by other

acid or toxic material, and is in a usable

condition for sustaining vegetation when

restored during reclamation, except if top-

soil is of insufficient quantity or of poor

6la

quality for sustaining vegetation, or if other

strata can be shown to be more suitable for

vegetation requirements, then the operator

shall remove, segregate, and preserve in a

like manner such other strata which is best

able to support vegetation ;

* * * * *

(7) for all prime farm lands as identified in

section 1257(b) (16) of this title to be mined and

reclaimed, specifications for soil removal, stor-

age, replacement, and reconstruction shall be

established by the Secretary of Agriculture, and

the operator shall, as a minimum, be required

to—

(A) segregate the A horizon of the nat-

ural soil, except where it can be shown that

other available soil materials will create a

final soil having a greater productive ca-

pacity; and if not utilized immediately,

stockpile this material separately from other

spoil, and provide needed protection from

wind and water erosion or contamination by

other acid or toxic material;

(B) segregate the B horizon of the nat-

ural soil, or underlying C horizons or other

strata, or a combination of such horizons or

other strata that are shown to be both tex-

turally and chemically suitable for plant

growth and that can be shown to be equally

or more favorable for plant growth than

the B horizon, in sufficient quantities to cre-

ate in the regraded final soil a root zone of

comparable depth and quality to that which

existed in the natural soil; and if not uti-

lized immediately, stockpile this material

separately from other spoil, and provide

needed protection from wind and water

62a

erosion or contamination by other acid or

toxic material ;

material described in (B) above with proper

compaction and uniform depth over the re-

graded spoil material; and

(D) redistribute and grade in a uniform

manner the surface soil horizon described in

subparagraph (A) ;

* * * * *

(19) establish on the regraded areas, and all

other lands affected, a diverse, effective, and

permanent vegetative cover of the same seasonal

variety native to the area of land to be affected

and capable of self-regeneration and plant suc-

cession at least equal in extent of cover to the

natural vegetation of the area; except, that in-

troduced species may be used in the revegetation

process where desirable and necessary to achieve

the approved postmining land use plan;

(20) assume the responsibility for successful

revegetation, as required by paragraph (19)

above, for a period of five full years after the

last year of augmented seeding, fertilizing, ir-

rigation, or other work in order to assure com-

pliance with paragraph (19) above, except in

those areas or regions of the country where the

annual average precipitation is twenty-six in-

ches, or less, then the operator’s assumption of

responsibility and liability will extend for a

period of ten full years after the last year of

augmented seeding, fertilizing, irrigation, or

other work: Provided, That when the regula-

tory authority approves a long-term intensive

agricultural postmining land use, the applicable

five- or ten-year period of responsibility for re-

vegetation shall commence at the date of initial

planting for such long-term intensive agricul-

63a

tural postmining land use: Provided further,

That when the regulatory authority issues a

written finding approving a long-term, inten-

sive, agricultural postmining land use as part

of the mining and reclamation plan, the au-

thority may grant exception to the provisions

of paragraph (19) above * * *.

Section 518(c) of the Surface Mining Act, 30

U.S.C. (Supp. I) 1268(c), provides:

Upon the issuance of a notice or order charg-

ing that a violation of the chapter has occurred,

the Secretary shall inform the operator within

thirty days of the proposed amount of said

penalty. The person charged with the penalty

shall then have thirty days to pay the proposed

penalty in full or, if the person wishes to con-

test either the amount of the penalty or the fact

of the violation, forward the proposed amount to

the Secretary for placement in an escrow ac-

count. If through administrative or judicial re-

view of the proposed penalty, it is determined

that no violation occurred, or that the amount

of the penalty should be reduced, the Secretary

shall within thirty days remit the appropriate

amount to the person, with interest at the rate

of 6 percent, or at the prevailing Department of

the Treasury rate, whichever is greater. Failure

to forward the money to the Secretary within

thirty days shall result in a waiver of all legal

rights to contest the violation or the amount of

the penalty.

Section 519(c) of the Surface Mining Act, 30

U.S.C. (Supp. I) 1269(¢), provides in pertinent part:

The regulatory authority may release in whole

or in part said bond or deposit if the authority

is satisfied the reclamation covered by the bond

64a

or deposit or portion thereof has been accom-

plished as required by this chapter according to

the following schedule:

* * * * *

(2) After revegetation has been estab-

lished on the regraded mined lands in ac-

cordance with the approved reclamation

plan. When determining the amount of bond

to be released after successful revegetation

has been established, the regulatory au-

thority shall retain that amount of bond for

the revegetated area which would be suffi-

cient for a third party to cover the cost of

reestablishing revegetation and for the per-

iod specified for operator responsibility in

section 1265 of this title of reestablishing

revegetation. No part of the bond or de-

posit shall be released under this paragraph

so long as the lands to which the release

would be applicable are contributing sus-

pended solids to streamflow or runoff out-

side the permit area in excess of the re-

quirements set by section 1265(b)(10) of

this title or until soil productivity for prime

farm lands has returned to equivalent levels

of yield as nonmined land of the same soil

type in the surrounding area under equiva-

lent management practices as determined

from the soil survey performed pursuant to

section 1257(b) (16) of this title. Where a

silt dam is to be retained as a permanent

impoundment pursuant to section 1265(b)

(8) of this title, the portion of bond may be

released under this paragraph so long as

provisions for sound future maintenance by

the operator or the landowner have been

made with the regulatory authority.

65a

Section 522 of the Surface Mining Act, 30 U.S.C.

(Supp. I) 1272, provides in pertinent part:

(a) (1) To be eligible to assume primary reg-

ulatory authority pursuant to section 1253 of

this title, each State shall establish a planning

process enabling objective decisions based upon

competent and scientifically sound data and in-

formation as to which, if any, land areas of a

State are unsuitable for all or certain types of

surface coal mining operations pursuant to the

standards set forth in paragraphs (2) and (3)

of this subsection but such designation shall not

prevent the mineral exploration pursuant to the

chapter of any area so designated.

(2) Upon petition pursuant to subsection (c)

of this section, the State regulatory authority

shall designate an area as unsuitable for all or

certain types of surface coal mining operations

if the State regulatory authority determines that

reclamation pursuant to the requirements of

this chapter is not technologically and economic-

ally feasible.

(8) Upon petition pursuant to subsection (c)

of this section, a surface area may be designated

unsuitable for certain types of surface coal min-

ing operations if such operations will—

(A) be incompatible with existing State

or local land use plans or programs; or

(B) affect fragile or historic lands in

which such operations could result in sig-

nificant damage to important historic, cul-

tural, scientific, and esthetic values and

natural systems; or

which such operations could result in a sub-

stantial loss or reduction of long-range pro-

ductivity of water supply or of food or fiber

66a

products, and such lands to include aquifers

and acquifer recharge areas; or

(D) affect natural hazard lands in which

such operations could substantially endanger

life and property, such lands to include

areas subject to frequent flooding and areas

of unstable geology.

(4) To comply with this section, a State must

demonstrate it has developed or is developing

a process which includes—

(A) a State agency responsible for sur-

face coal mining lands review;

(B) a data base and an inventory system

which will permit proper evaluation of the

capacity of different land areas of the State

to support and permit reclamation of sur-

face coal mining operations;

ing land use planning decisions concerning

surface :oal mining operations; and

(D) proper notice, opportunities for pub-

lic participation, including a public hearing

prior to making any designation or redesig-

nation, pursuant to this section.

(5) Determinations of the unsuitability of

land for surface coal mining, as provided for in

this section, shall be integrated as closely as pos-

sible with present and future land use planning

and regulation processes at the Federal, State,

and local levels.

(6) The requirements of this section shall not

apply to lands on which surface coal mining op-

erations are being conducted on August 3, 1977,

or under a permit issued pursuant to this chap-

ter, or where substantial legal and financial com-

mitments in such operation were in existence

prior to January 4, 1977.

* * * * *

67a

or may be adversely affected shall have the right

to petition the regulatory authority to have an

area designated as unsuitable for surface coal

mining operations, or to have such a designation

terminated. Such a petition shall contain allega-

tions of facts with supporting evidence which

would tend to establish the allegations. Within

ten months after receipt of the petition the

regulatory authority shall hold a public hearing

in the locality of the affected area, after ap-

propriate notice and publication of the date,

time, and location of such hearing. After a per-

son having an interest which is or may be ad-

versely affected has filed a petition and before

the hearing, as required by this subsection, any

person may intervene by filing allegations of

facts with supporting evidence which would tend

to establish the allegations. Within sixty days

after such hearing, the regulatory authority

shall issue and furnish to the petitioner and any

party to the hearing, a written decision regard-

ing the petition, and the reasons therefore.’ In

the event that all the petitioners stipulate agree-

ment prior to the requested hearing, and with-

draw their request, such hearing need not be

held.

(d) Prior to designating any land areas as

unsuitable for surface coal mining operations,

the regulatory authority shall prepare a detailed

statement on (i) the potential coal resources of

the area, (ii) the demand for coal resources, and

(iii) the impact of such designation on the en-

vironment, the economy, and the supply of coal.

(e) After August 3, 1977, and subject to

valid existing rights no surface coal mining op-

erations except those which exist on August 3,

1977, shall be permitted—

68a

(4) within one hundred feet of the out-

side right-of-way line of any public road,

except where mine access roads or haulage

roads join such right-of-way line and ex-

cept that the regulatory authority may per-

mit such roads to be relocated or the area

affected to lie within one hundred feet of

such road, if after public notice and oppor-

tunity for public hearing in the locality a

written finding is made that the interests

of the public and the landowners affected

thereby will be protected; or

(5) within three hundred feet from any

occupied dwelling, unless waived by the

owner thereof, nor within three hundred

feet of any public building, school, church,

community, or institutional building, public

park, or within one hundred feet of a

cemetery.

Section 701(20) of the Surface Mining Act, 30

U.S.C. (Supp. I) 1291(20), provides:

For the purposes of this chapter—

(20) the term “prime farmlan2” shall

have the same meaning as that pfc.iously

prescribed by the Secretary of Agriculture

on the basis of such factors as moisture

availability, temperature regime, chemical

balance, permeability, surface layer com-

position, susceptibility to flooding, and ero-

sion characteristics, and which historically

have been used for intensive agricultural

purposes, and as published in the Federal

wv U. S. GOVERNMENT PRINTING Office, 1960 325984 49

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.