# Appendix — Hodel v. Indiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0252%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 452 U.S. 314 ## Text | rrveD No. 80-231 MOV 20 1980 In The MICHAEL RODAK, Jr. CLERK Supreme Court of the United States October Term, 1980 CECIL D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL, V. Appellants, STATE OF INDIANA, ET AL, Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA JOINT APPENDIX LAWN MMS ices WADE H. McCREE, JR. ‘Bolicitor 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 pA eprom of Justice — ashington, D.C. 20580 (202) 633-2217 } ———$—————— ————_-——— THEODORE L. SENDAK Attorney General State of Indiana JACK R. O'NEILL Deputy Attorney General State of Indiana 219 State House Indianapolis, Indiana 46204 (817) 282-6357 For State of Indiana, Otis R. Bowen, M.D., Governor, Indiana Department of Natural Resources, and Joseph D. Cloud, Director. HARRY T. ICE G. DANIEL KELLEY, JR. BYRON L. MYERS 111 Monument Circle Indianapolis, Indiana 46204 (817) 635-1218 For Indiana Coal Association, Meadowlark Farms, Inc., AMAX Coal Company, a Division of AMAX Inc., Peabody Coal Company, and John A. Conlon. » ae Midwest Law Printing Co., Chicago —_—_———we —_—_——_——— a 60601, Financial 6-3988 TABLE OF CONTENTS DOCKET ENTRIES PAGE State of Indiana, et al. v. Cecil D. Andrus, et al., Be Gar HRP sul asadedehes sata nahsadvonsascuboodaiotonsenssabusy 1 Indiana Coal Association, et al. v. United States, OG iis; ee Be PRICE, shake bidstasctdestiensicncivadpeentins 7 PLEADINGS Complaint, State of Indiana, et al. v. Cecil D. Andrus, et al., No. IP 78-500-C ou... cescssceeeeeee 13 Complaint, Indiana Coal Association, et al. v. United States, et al., No. IP 78-501-C ............... 24 Motion for Preliminary Injunction ..................s0000 36 Joint Petition For Expedited Trial And Decision And Stipulation As To Procedure ..............ccc00 48 EVIDENCE Plaintiffs’ [Appellees’] Exhibits: Exhibit No. 3 to Deposition of R. Neil Sampson — Report Of The Interagency Task Force On The Issue Of A Moratorium Or A Ban On Mining In Prime Agricultural Lands. .................cccccssssssccsees 51 Exhibit 1, Map of Illinois Coal Basin. ................... 65 Exhibit 2, Map of Surface Mineable Reserves and Pe tr IIE sininbietbieed chetcedtiicrntnascidbeciceibiseevwase 66 Exhibit 3, Map of Underground Mineable ITU: cits ncn taksastide nhcsenisbitdhguasDatiisidendiebdshacunsiseradarnticcc 67 Exhibit 4, Map of Prime Farmland ...............00000 68 Exhibit 5, Affidavit of Charles E. Wier ............... 69 Exhibit 6, Affidavit of Robert L. Major ............... 72 Exhibit 11, Affidavit of Gilbert S. Graves ........... 76 il Exhibit 12, Affidavit of William M. Kester, Jr. ...... 77 Exhibit 13, Affidavit of Ralph E. Clark .............. 81 Exhibit 14, Plaintiffs’ Request for Admissions ....... 83 Exhibit 20, Affidavit of Loyd BR. Jones ................. 95 Exhibit 40, Review of Reclamation Plans ............ 98 issn agp Re OE SORA BE SETAE 102 Defendants’ [Appellants’] Exhibits: Report of 208 Water Quality Program .................. 104 Exhibit A, Affidavit of Donald a ee 105 Reference 1, Article by David P. Bernard ........... 112 Exhibit B, Affidavit of Donald E. McCormack ...... 121 Exhibit C, Affidavit of Raymond I. Dideriksen ..... 123 Exhibit F, Affidavit of Edgar A. Imhoff ............ 127 Exhibit G, Affidavit of Elvin V. Wickline .............. 129 Exhibit H, Affidavit of Allen oy Po 130 Transcript of Hearing Held on April 18, 1979: Testimony of Dr. William W. a 133 Testimony of Alten F. Grandt ooccccccccssssssssseoooeccs..... 138 Testimony of Glenn L. Kaffenberger ..................... 145 Testimony of Ronald L. LeWi8 o.eecccsssssssesocoosssssss..... 148 Testimony of Elvin V. Wickline -oeccccsscccccoosssss....... 153 No. 80-231 In The Supreme Court of the Anited States October Term, 1980 CECIL D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL.., Appellants, V. STATE OF INDIANA, ET AL., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA JOINT APPENDIX DOCKET ENTRIES State of Indiana, et al. v. Cecil D. Andrus, et al., No. IP 78-500-C Date Proceedings 8/16/78—Complaint filed. Summons issued. Cover sheet filed. 8/16/78—Joint Motion for Consolidation filed. 8/17/79—Plaintiff fiels (sic) Moton (sic) for leave to amend by interlineation; c/s. 8/29/78—U.S. Marshals return-Summons & Complaint & Motion served on the U.S. Dept. of Interior by certified mail on 8/17/78. Served on Walter J. Heine, Dir. of the Office of Surface Mining by certified mail on 8/17/78. Served on the Office of Surface Mining Reclamation & Enforcement by certified mail on 8/17/78. Served on Cecil Andrus, See. of the U.S. Dept. of Interior by certified mail on 8/17/78. Served on Griffin B. Bell by certified mail on 8/17/78. Served on Virginia D. McCarty, U.S. Atty. on 8/17/78. Fee $56.00. 9/6/78—Court enters order of consolidation with Cause Number: IP78-501-C and the causes are con- solidated for all purposes and on all issues un- der Civil Cause Number: IP78-500-C. 9/6/78—Court GRANTS plaintiff’s motion for leave to amend their complaint by interlineation. Para- graph 28, line 3, page 5, should be amended to read August 3, 1977 instead of August 30, 1977. 10/13/78—Defendants file motion for enlargement of time, c/s. 10/16/78—Court grants an extension of time to defend- ant to answer or otherwise plead. Time ex- tended to and including November 15, 1978. ee Date Proceedings 11/15/78—Defendants file motion for enlargement of time, c/s. | 11/16/78 Court grants the defendants’ motion for exten- sion of time to plead to the plaintiffs’ complaint, time is now extended to and including November 22, 1978. (S.E.) 11/22/78—Government files Motion to Dismiss. 12/7/78—Plaintiffs file motion for extension of time to file answer brief on motion to dismiss. ¢/s 12/11/78—Plaintiff files motion for enlargement of time, c/s. 12/12/78—Court grants the plaintiffs motion for extension of time to file answer brief to the defendants motion to dismiss, time is now extended to and including Jan 7, 1979 (S.E.) 12/14/78—Court grants the State of Indiana’s motion for extension of time to respond to the defendants motion to dismiss, time is now extended to and including Jan 15, 1979 (S.E.) 1/8/79—Motion of Plaintiffs, Indiana Coal Association, Meadowlark Farms, Inc., Amax Coal Company, Peabody Coal Company and John A. Conlon for further extension of time to file brief in opposition to motion to dismiss ¢/s. 1/11/79—Plaintiff files Motion for enlargement of time; c/s. 1/11/79—Court grants the plaintiff’s moiton (sic) for ex- tension of time to file answer brief to the defend- ants motion to dismiss, time is now extended to and including Jan 17, 1979 (S.E.) 1/15/79—Notice of taking deposition of Richard M. Mc- Nabb filed; ¢/s. 1/17/79—State’s Response to Federal Defendant’s Mo- tion to Dismiss; ¢/s. Sills Date Proceedings 1/18/79--Brief of plaintiffs, Indiana Coal Association, Peabody Coal Company, Amax Coal Company, Meadowlark Farms, Inc. and John A. Conlon, in opposition to the Motion to Dismiss; ¢/s 1/15/79—Court grants the State of Indiana’s motion for extension of time to respond to the defendants motion to dismiss, time is now extended to and including January 17, 1979. (S.E.) 1/22/79—Defendant files motion for stay of discovery pending a ruling on defendants’ motion to dis- miss, ¢/Ss. 1/23/79—Court grants the Governments motion to stay discovery until the Court has ruled on the mo- tion to dismiss. (S.E.) 1/26/79—State of Indiana’s Motion to reconsider order granting defendant’s Motion for stay of dis- covery; ¢/s 2/6/79—Defendant files answer in opposition to State of Indiana’s motion to reconsider order granting defendants’ motion for stay of discovery with memorandum in support thereof, c/s. 2/8/79—Motion of plaintiffs, Indiana Coal Assoc., Amax, Peabody and Conlon for the court to reconsider its order granting defendants’ motion for a stay of discovery, ¢/s. 3/9/79—Plaintiffs file pleadings: 1) Motion for Preliminary Injunction; ¢/s 2) Plaintiffs’ request for admissions; ¢/s 3) Plaintiffs’ affidavits and exhibits in sup- port of Motion for Preliminary Injunc- tion and in opposition to defendants’ Mo- tion to Dismiss 3/12/79—Plaintiffs file pleadings: 1) Request for court to require defendants to respond to request for admissions with- in ten days; c/s. sali Date Proceedings 2) Request for immediate hearing on mo- tion for preliminary injunction; c/s. 3/13/79—Plaintiffs, Indiana Coal Association, et al files pleadings: 1) Plaintiffs’ Indiana Coal Association, Pea- body Coal Company, Amax Coal Com- pany, Meadowlark Farms, Inc. and John A. Conlon, Motion for court to consider extra-pleading matters and to treat de- fendants’ motion to dismiss as a motion for summary judgment; 2) Reply Memorandum in support of de- fendant’s Motion to Dismiss; ¢/s. 3/27/79—Defendants by counsel filed Motion for enlarge- ment of time; ¢/s. 3/27/79—Court grants the defendant’s motion for exten- sion of time to respond to the plaintiff’s plead- ings, time is now extended to and including April 16, 1979. (S.E.) 4/3/79—Plaintiff Indiana Coal Assoc. et al files plead- ings: 1) Notice of deposition, ¢/s. 2) Brief in support of motion for prelimi- nary injunction and in reply to defend- , ant’s reply brief in support of motion to dismiss, ¢/s. 4/12/79—Defendants files Motion for enlargement of time; c/s. 4/17/79—Deposition of R. NEIL SAMPSON filed. - 4/13/79—Court grants the Governments motion for exten- sion of time to respond to the plaintiffs plead- ings, time is now extended to and including May 1, 1979. (S.E.) 4/17/79—Memorandum in opposition to plaintiffs’ motion for preliminary relief and in support of defend- = Date Proceedings ants’ motion to dismiss filed by defendants, c/s. 4/17/79—Defendant files response to request for admis- sions, ¢/s. 4/18/79—Affidavits of Dan Lynn Rumbly and Randy E. Staley. 5/4/79—State's Post-Hearing Brief filed; ¢/s. 5/4/79—Defendants’ Post-Trial brief; c/s 5/4/79-—Defendants file Motion for leave to offer addi- tional exhibits and evidence; c/s 5/4/79—Post-Hearing Brief in support of plaintifffs’ (sic) Motion for Preliminary Injunction; ¢/s. 8/21/79—Supplement to Motion to Dismiss filed by Fed- eral Defendants, c/s 2/27/80—Joint petition for expedited trial and decision ana stipulation as to procedure filed by the Parties. Court files order on joint petition for expedited trial and decision and stipulation as to procedure. (S.E.) Court now set argument on this matter for 10:00 A.M. April 24, 1980. 3/14/80—Plaintiff files trial brief on the merits, c/s. 4/3/80—Defendants file trial brief on the merits, ¢/s. 4/9/80—Plaintiff files joint motion for enlargement of time, ¢/s. 4/11/80—Court now Grants the plaintiffs’ motion for ex- tension of time to file their reply briefs to and including April 21, 1980. 4/18/80—Plaintiff files reply trial brief on the merits, c/s. 6/6/80—Plaintiffs file motion to withdraw an issue, ¢/s. 6/10/80—Court now grants the plaintiff’s motion to with- draw an issue. ~ Date Proceedings 6/10/80—Court files Order and Judgment finding for the plaintiffs and against defendants. (SE.) Court files Memorandum of decision. Case Closed. En- tered June 11, 1980. O.B. Vol. 26—Page 304. 6/16/80—Federal defendants file notice of appeal to the Supreme Court of the United States from the final order and judgment entered in this action on June 10, 1980. Copy of the notice sent to the counsel of record and the court reporter. Copy of the notice of appeal, docket entries, Appli- cation for a stay of order and copy of the judg- ment sent to the Supreme Court. Application for a stay of order filed, c/s. 6/18/80—Plaintiff files motion for time to respond to defendants’ motion to stay, ¢/s. 6/18/80—Court now Grants the plaintiffs’ motion for ex- tension of time to respond to the defendants’ motion to stay. 6/23/80—Plaintiff files memorandum in opposition to mo- tion to stay, c/s. 6/24/80—Plaintiff files submission of exhibit A, ¢/s. 6/25/80—Court now Denies application of federal defend- ants for a stay of the June 10, 1980 order of this court. Bs 7/2/80—Official Reporter’s transcript of argument on merits filed. 7/7/80—Certified copy of Order from Supreme Court filed. Judgment of district court stayed pending the filing and disposition of appeal by Supreme Court. 10/10/80—Certified copy of order from Supreme Court filed, and probable jurisdiction is noted. om, Indiana Coal Association, et al. v. United States, et al., No. IP 78-501-C Date Proceedings 8/16/78—Complaint filed. Summons issued. Cover sheet filed. 8/16/78—Joint Motion for Consolidation filed. 8/29/78—U.S. Marshals return-Summons, Complaint & Motion served on U.S. Dept. of the Interior by certified mail on 8/17/78. Served on Walter J. Heine, Director of the Office of Surface Mining Reclamation & Enforcement by certified mail on 8/17/78. Served on the Office of Surface Min- ing Reclamation & Enforcement by certified mail on 8/17/78. Served on Cecil D. Andrus, Sec. of the U.S. Dept. of the Interior by certified mail on 8/17/78. Served on the US. Atty. General by certified mail on 8/22/78. Fee $35.00 9/6/78—Court enters order of consolidation with Cause Number: IP78-500-C and the causes are con- solidated for all purposes and on all issues un- der Civil Cause Number: IP78-500-C. 11/22/78—Government files Motion to dismiss 12/7/78—Plaintiffs files motion for extension of time to file answer brief on motion to dismiss. ¢/s 12/11/79—Piaintiff files motion for enlargement of time, c/s. 12/12/78—Court grants the plaintiffs motion for extension of time to file answer brief to the defendants motion ot (sic) dismiss, time is now extended to and including Jan 7, 1979. (S.E.) 12/14/78—Court grants the State of Indianas’ (sic) motion for extension of time to respond to the defend- ants motion to dismiss, time is now extended to and including Jan 15, 1979 (S.E.) hn Date Proceedings 1/8/79—Motion by plaintiffs, Indiana Coal Association, Meadowlark Farms, Inc., Amax Coal Company, Peabody Coal Company and John A. Conlon for further extension of time to file brief in op- position to motion to dismiss; ¢/s. 1/11/79—Plaintiff files Motion for enlargement of time; c/s. 1/11/79—Court grants the plaintiff’s moiton (sic) for ex- tension of time to file answer brief to the de- fendants motion to dismiss, time is now extended to and including Jan 17, 1979 (S.E.) 1/18/79—Brief of plaintiffs, Indiana Coal Association, Peabody Coal Company, Amax Coal Company, Meadowlark Farms, Inc. and John A. Conlon, in opposition to the Motion to Dismiss; ¢/s. 1/15/79—Court grants the State of Indiana’s motion for extension of time to respond to the defendant’s motion to dismiss, time is now extended to and including January 17, 1979. (S.E.) 1/22/79—Defendant files motion for stay of discovery pending a ruling on defendants’ motion to dis- miss, ¢/s. 1/23/79—Court grants the Governments motion to stay discovery until the Court has ruled on the mo- tion to dismiss. (S.E.) 1/26/79—State of Indiana’s Motion to reconsider order granting defendants motion for stay of discov- ery; c/s 2/6/79—Defendant files answer in opposition to State of Indiana’s motion to reconsider order granting defendants’ motion for stay of discovery with memorandum in support thereof, ¢/s. 2/8/79—Motion of plaintiffs, Ind. Coal Assoc., Amax, Peabody, and Conlon for the court to recon- nw Date Proceedings sider its order granting defendants’ motion for a stay of discovery filed, c/s. 3/9/78—Plaintiffs file pleadings: 1) Plaintiffs’ request for admissions; c/s 2) Motion for preliminary injunction; ¢/s 3) Plaintiffs’ Affidavits and exhibits in sup- port of motion for preliminary injunction and in opposition to defendants’ Motion to dismiss. 3/12/79—Plaintiffs file pleadings: 1) Request for court to require defendants to respond to request for admissions within ten days; ¢/s. 2) Request for immediate hearing on motion for preliminary injunction; c/s. 3/13/79—Plaintiffs, Indiana Coal Association, et al. files pleadings: 1) Plaintiffs’ Indiana Coal Association, Pea- body Coal Company, Amax Coal Com- pany, Meadowlark Farms, Ine. and John A. Conlon, Motion for court to consider extra-pleading matters and to treat de- fendants’ motion to dismiss as a motion for summary judgment; c/s. 2) Reply Memorandum in support of de- fendant’s Motion to Dismiss; ¢/s. 3/27/79—Defendants file Moiton (sic) for enlargement of time; c/s. 3/27/79—Court grants the defendants motion for exten- sion of time to respond to the plaintiffs plead- ings, time is now extended to and including April 16, 1979. (S.E.). 4/3/79—Plaintiff Indiana Coal Assoc. et al files plead- ings: 1) Notice of deposition, c/s. ahh Date Proceedings 2) Brief in support of motion for prelimi- nary injunction and in reply to defend- ant’s reply brief in support of motion to dismiss, ¢/s. 4/12/79—Defendants file Motion for enlargement of time; c/s. 4/17/79—Deposition of R. NEIL SAMPSON filed. 4/13/79—Court grants the Governments motion for ex- tension of time to respond to the plaintiff’s pleadings, time is now extended to and in- cluding May 1, 1979. (S.E.) 4/17/79—Defendants file pleadings: 1) Memorandum in opposition to plaintiffs’ motion for preliminary relief and in sup- port of defendants’ motion to dismiss filed, c/s. 2) Response to request for admissions, c/s. 4/18/79—Affidavits of Dan Lynn Rumbly and Randy E. Staley filed. 5/4/79—State’s Post-Trial Brief filed; ¢/s. 5/4/79—Defendants’ Post-Trial Brief filed; ¢/s. 5/4/79—Defendants file Motion for leave to offer addi- tional exhibits and evidence; ¢/s. 5/4/79—Post-Hearing Brief in support of plaintiffs’ Mo- tion for Preliminary Injunction; c/s. 8/21/79—Supplement to Motion to Dismiss filed by Fed- eral Defendants. 2/27/80—Joint petition for expedited trial and decision and stipulation as to procedure filed by the Parties. Court files order on joint petition for expedited trial and decision ard stipulation as to procedure. (S.E.) Court now sets argument on this matter for 10:00 A.M. April 24, 1980. Date Proceedings 3/14/80—Plaintiffs’ trial brief on the merits filed, c/s. 4/3/80—Defendants file trial brief on the merits, c/s. 4/9/80—Plaintiffs file joint motion for enlargement of time, ¢/s. 4/11/80—Court now Grants the plaintiffs’ motion for ex- tension of time to file their reply briefs to and including April 21, 1980. 4/18/80—Plaintiff files reply trial brief on the merits, c/s. 6/6/80—Plaintiffs file motion to withdraw an issue, ¢/s. 6/10/80—Court now grants the plaintiff’s motion to with- draw an issue. 6/10/80—Court files Order and Judgment finding for the plaintiffs and against the defendants. (S.E.) Court files memorandum of decision. Case Closed. Entered June 11, 1980. O.B. Vol. 26— P. 304. 6/16/80—Federal defendants file notice of appeal to the Supreme Court of the United States from the final order and judgment entered in this action on June 10, 1980. Application for a stay of or- der filed, c/s. Copy of notice went to the counsel of record and court reporter. Copy of the no- tice of appeal, docket entries, application for a stay of order and copy of the judgment sent to the Supreme Court. 6/18/80—Plaintiff files motion for time to respond to defendants’ motion to stay, ¢/s. 6/18/80—Court now Grants the plaintiffs’ motion for ex- tension of time to respond to the defendants’ motion to stay. 6/23/80—Plaintiff files memorandum in opposition to mo- tion to stay, ¢/s. joe | ee Date Proceedings 6/24/80—Plaintiffs file submission of exhibit A, c/s. 6/25/80—Court now Denies application of federal de- fendants for a stay of the June 10, 1980 order of this court. 7/2/80—Official reporter’s transcript of argument on merits filed. 7/7/80—Certified copy of order from Supreme Court filed. Judgment of district court stayed pending the filing and disposition of appeal by Supreme Court. 10/10/80—Certified copy of order from Supreme Court filed, and probable jurisdiction is noted. ig PLEADINGS State of Indiana, et al. v. Cecil D. Andrus, et al. No. IP 78-500-C COMPLAINT The Plaintiffs, 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 the Indiana Department of Natural Resources, for their claim for relief against the Defen- dants, allege and say: Jurisdiction 1. Jurisdiction is in this Court pursuant to 28 U.S.C. §1331 since this is a civil action which arises under the Constitution and laws of the United States. 2. Jurisdiction is also in this Court pursuant to 28 U.S.C. §1337 since this is a civil action arising under an Act of Congress purporting to regulate commerce. 3. Plaintiffs seek a declaration of the rights of the parties pursuant to 28 U.S.C. §§2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. 4. Plaintiffs also seek a declaration that 30 U.S.C. §1201 et seq., the Surface Mining Control and Reclama- tion Act gpf 1977, Public Law 95-87 (hereafter Act) is unconstitutional. 5. “Plaistiffs also seek to have this Court permanently enjoin the enforcement and implementation of 30 U.S.C. §1201 et seg. and all regulations proposed and promulgated thereunder. aa Ye Parties 6. Plaintiff State of Indiana (hereafter State), is a sovereign state of the United States, admitted to the Union as the nineteenth state in 1816. 7. Plaintiff Otis R. Bowen, M.D., Governor of the State of Indiana is the chief executive officer of the State and is charged with the duty of appointing the Director of the Indiana Department of Natural Resources as well as the members of the Natural Resources Commission. 8. Plaintiff Joseph D. Cloud, Director of the Indiana Department of Natural Resources, pursuant to I.C. 13-4- 6-4, has been granted the duty and power by the Indiana General Assembly to administer; supervise and enforce the Indiana Strip Mining Reclamation act. 9. The Indiana Department of Natural Resources is charged by law with the power to investigate, to compile and disseminate information, and to make recommen- dations concerning the natural resources of the State and their conservation, including the drainage and reclamation of lands. 10. Defendant Cecil D. Andrus is the Secretary of the Department of Interior (hereafter Secretary), and Defendant Walter Heine is the Director of the Office of Surface Mining Reclamation and Enforcement (here- after Director), and they are responsible for adminis- tering the Act. 11. The Defendant Office of Surface Mining Reclamation and Enforcement (hereafter Office) is a division of the Defendant Department of the Interior, and it is through the Office that the Secretary ad- ministers all aspects of the Act. ji 12. The United States of America, through the Department of Interior and its Secretary and the Office and its Director, has attempted to control all aspects of the reclamation of surface mined areas within the states, and has attempted to pre-empt any and all valid state laws dealing with such reclamation. Claim for Relief 13. Indiana is in the top six (6) states in the total production of coal by surface mining techniques, and is in the top nine (9) states in the total production of coal by all mining techniques. 14. The first state to enact legislation dealing with the reclamation of surface mined areas was West Virginia in 1939. Indiana enacted its first statute in 1941, thirty-six (36) years prior to the first Federal Act. 15. Prior to the passage of the Act in 1977, thirty- eight (38) states had passed legislation dealing with the reclamation of mined area within their respective states, taking into consideration the particular variables within those states to arrive at the standards to be utilized therein. Twenty-six (26) of those states have coal mining operations within their borders, and are, therefore, affected by the Act. 16. In 1974, Indiana joined thirteen (13) states which supply approximately ninety percent (90%) of the nation’s coal production, and signed the Interstate Min- ing Compact (hereafter Compact), I.C. 14-4-2.2-1, with purposes to: 1. Advance the protection and restoration of land, water and other resources affected by mining. 2. Assist in the reduction or elimination or counteracting of pollution or deterioration of land, water and air attributable to mining. atic $Gnn 38. Encourage, with due recognition of relevant regional, physical, and other differences, programs in each of the party States which will achieve com- parable results in protecting, conserving, and im- proving the usefulness of natural resources, to the end that the most desirable conduct of mining and related operations may be universally facilitated. 4. Assist the party States in their efforts to facilitate the use of land and other resources affected by the mining, so that such use may be consistent with sound land use, public health, and public safety, and to this end to study and recom- mend, wherever desirable, techniques for the im- provement, restoration or protection of such land and other resources. 5. Assist in achieving and maintaining an ef- ficient and productive mining industry and in in- creasing economic and other benefits attributable to mining. 17. Coal is the most abundant source of energy in the United States, and is used to produce ninety-seven per- cent (97%) of all electricity generated in Indiana. 18. The Plaintiffs regulate surface mining activities within Indiana pursuant to I.C. 13-4-6-1 et seq., I.C. 14-4- 2-1 et seq., I.C. 14-4-2.1-1 et seg., and I.C. 14-4-2.2-1 et seq., which provide, inter alia, for the reclamation and restoration of lands adversely affected by surface min- ing activities. 19. The State has also enacted comprehensive legisla- tion governing land use planning and real property within Indiana. 20. Included in the purposes of the Act, as found at 30 U.S.C. §1202, are: — (c) assure that surface mining operations are | not conducted where reclamation as required by this chapter is not feasible; (f) assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy. (k) encourage the full utilization of coal resources through the development and application of underground extraction technologies; (m) wherever necessary, exercise the full reach of Federal constitutional powers to insure the protection of the public interest through effective control of surface coal mining operations. 21. Pursuant to the Act, the Defendants have issued final and proposed regulations which may be found at 30 C.F.R., Part 700 et seq. 22. Subchapter IV of the Act establishes a fee which is, in effect, a tax or penalty, and also establishes procedures for reclaiming lands which have been “adversely affected” by past surface coal mining. 30 U.S.C. §1231 et seq. 23. The “Fee Collection Report” issued by the United States Department of the Interior shows that Indiana coal mining operators paid $1,970,402 in fees for the quarter ending December 31, 1977, and a total of $30,925,490. was paid by operators in the twenty-six (26) reporting states. =| 24. The fees paid in the quarter ending December 31, 1977, were enormous, and production of coal in that quarter was greatly reduced due to the nation-wide coal strike. 25. Preliminary figures for 1977 indicate that 27.9 million tons of coal were mined in Indiana with ap- proximately 525,000 tons being mined by underground techniques. If the same amount is mined in 1978, In- diana coal mining operators will pay fees, pursuant to 30 U.S.C. §1232, of $9,660,000. which will, by necessity, be passed on to the consumers in Indiana and other states, including the State of Indiana as a consumer, in the form of increased costs for coal, electricity, and other products using coal in the manufacturing process. 26. Subchapter V of the Act establishes a regulatory scheme for surface coal mining, reclamation, and use of reclaimed lands. 30 U.S.C. §1251 et seq. 27. Pursuant to 30 U.S.C. §1253, each state in which there is or may be conducted surface coal mining operations may only assume exclusive jurisdiction over the regulation of surface coal mining by filing a state program with the Secretary which demonstrates the state has the capability of carrying out the provisions of the Act through seven specific and extensive re- quirements. 28. The State is required to submit its plan to the Secretary by the end of the eighteen-month period beginning August 30, 1977; the Secretary then has six months to approve or disapprove the plan; and if disap- proved, the State has sixty (60) days in which to resub- mit the plan which shall be approved or disapproved within sixty (60) days. —19— 29. In the event a state fails to submit an acceptable program or fails to implement, enforce, or maintain its approved program, the Secretary, pursuant to 30 U.S.C. §1254, shall prepare, promulgate and implement a Federal program for that state. 30. Since May 4, 1978, the effective date of the Act, operators of coal mining operations within Indiana and elsewhere have been subjected to 30 U.S.C. §1252 which mandates compliance with the Federal act. 31. Pursuant to 30 U.S.C. §1265, permits issued un- der the Act to conduct surface coal mining operations require that the operations comply with extensive “per- formance standards”, thereby attempting to pre-empt matters properly within the jurisdiction and control of the State. 32. The Plaintiffs allege, upon information and belief, that compliance with the Act has resulted in sub- stantial initial capital expenditures by the operators within Indiana exceeding $100,000,000. and will result in substantial additional capital expenditures and operating expenses in the future which will, by necessi- ty, be passed on to the consumers in Indiana and other states, including the State of Indiana as a consumer, in the farm of increased costs for coal, electricity, and other products using coal in the manufacturing process. 33. If the operators fail to comply with the provisions of the Act they will be subject to penalties of up to $5,- 000. per day per violation plus the possibility of closure of their mines and the denial of new or renewal mining permits, all to their detriment and to the irreparable in- jury of such operators and the State and to the con- suming public if such closures would lead to an in- terruption of the supply of coal. — 2). 34. The Defendants have retained complete and overall enforcement powers under the Act, regardless of the sufficiency of any present or future State laws, even though Congress found in 30 U.S.C. §1201 that because of the diversity of the factors involved in surface mining the primary responsibility of governing that activity should rest with the states. 35. Pursuant to 30 U.S.C. §1237, the Secretary, his agents, employees, or contractors, have the right “as an exercise of the police power” to enter upon any property adversely affected by past coal mining practices and any other property in order to have access to such property to do all things necessary or expedient to restore, reclaim, abate, control or prevent the adverse effects. 36. Pursuant to 30 U.S.C. §1237, the Secretary, his agents, employees, or contractors, have the right “as an exercise of the police power” to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and to determine the feasibility of restoration, reclamation, abatement, con- trol or prevention of such adverse effects. 37. The Act is an unconstitutional invasion of the powers reserved to the State by the Tenth Amendment to the Constitution of the United States, and does not in- volve any o1 the powers delegated to the United States. 38. The regulations promulgated and adopted under the Act as well as the proposed regulations constitute a drastic intrusion of the federal government into the af- fairs of the citizens of Indiana and the State. 39. The Act is unconstitutional in that it purports to regulate, under the guise of the commerce clause, Arti- cle 1, §8, cl. 3 of the Constituion, activities purely local in nature within the State of Indiana. eet 40. The process of surface coal mining, reclamation, and/or the subsequent use of reclaimed lands have no substantial, direct, or indirect effects on interstate com- merce. 41. The Act, and the regulations proposed and promulgated thereunder, interfere with the traditional attributes of sovereignty of the State, including, but not limited to land use control and planning, regulation of the rights to and in real property, ¢ otection of public health and safety, and it interferes with the structuring of the governmental operations of the State. 42. The sovereign powers of the State of Indiana and of the people, as reserved to them by the Tenth Amend- ment to the Constitution of the United States, are to be exercised by the Legislature of the State for the benefit of the citizens of the State in light of various local con- ditions and considerations, and are not to be exercised under threat, coercion, intimidation or undue influence by the United States. 43. The Act is unconstitutional in that it purports to allow access to private property of Indiana citizens without a warrant under “the police power,” a power which does not exist in the Defendants or the Federal government. 44. The Act is not capable of enforcement since it is vague, overbroad and lacks specificity in its terms, thereby not allowing those purportedly regulated by it to know what is required of them by the law. 45. The Act pre-empts valid laws enacted by the State of Indiana which have been functioning for decades in the regulation of the reclamation of mined areas. Those laws, which have been highly successful in Indiana and which have been models for legislation by monies other states, provide for higher land use reclamation than allowed by the Act, thereby necessitating the procedural requirement of applying for a variance and getting that application approved in order to effect the higher use that is required as a matter of course under Indiana law. 46. Indiana’s program for reclamation is enforced and implemented by a staff of ten (10) state employees, but in order to comply with the provisions of this Act that staff will need to be increased by an additional nineteen (19) persons, the result of which is a needless, additional financial burden to the citizens of Indiana, while the effectiveness of the program will be reduced below that achieved by the State regulatory scheme. WHEREFORE, for all the above and foregoing, the Plaintiffs respectfully pray this Court assume jurisdic- tion of this cause; declare 30 U.S.C. §1201 et seg., Public Law 95-87, and all regulations proposed and promul- gated thereunder, unconstitutional, void, and of no effect; enjoin the enforcement of 30 U.S.C. §1201 et seq., Public Law 95-87, and all regulations proposed and promulgated thereunder; grant judgment to the Plain- tiffs, costs versus the Defendants; and for all other just and proper relief. STATE OF INDIANA /s/ OTIs R. Bowen, M.D. Governor of the State of Indiana INDIANA DEPARTMENT OF NATURAL RESOURCES /s/ JOSEPH D. CLoup Director, Indiana Department of Natural Resources —23— /s/ THEODORE L. SENDAK Attorney General of Indiana /s/ DONALD P. BOGARD Chief Counsel Attorneys for Plaintiffs (Filed: August 16, 1978] is Indiana Coal Association, et al. v. United States, et al. No. IP 78-501-C COMPLAINT Plaintiffs for their claim for relief against defendants state: 1. The matter in controversy is a civil action and arises under the United States Constitution and laws of the United States and this Court has jurisdiction pur- suant to 28 U.S.C. § 1331, 28 U.S.C. §§ 2201 and 2202, and 5 U.S.C. § 701. 2. The Surface Mining Control and Reclamation Act of 1977, Public Law 95-87, 30 U.S.C. § 1201, et seg. [hereinafter “the Act”] was enacted August 3, 1977. Defendants, Cecil D. Andrus and Walter Heine, in their sospective capacities as Secretary of the Department of the Interior and as Director of the Office of Surface Mining Reclamation and Enforcement are charged with responsibility for administering the Act, are presently intending to enforce the Act and have issued final and proposed regulations thereunder [30 C.F.R., Part 700 et seq. |. 3. Plaintiffs, AMAX Inc. through its division AMAX Coal Company, Peabody Coal Company and _ the members of the Indiana Coal Association [hereinafter “Coal Company Plaintiffs”) are owners and operators of surface coal mines in the State of Indiana and in other states and some of them have present plans for enlarg- ing such surface mining operations and for opening of new mining operations which are subject to the re- quirements of the Act; and plaintiff John A. Conlon is a resident of the State of Indiana. Defendant Meadowlark Farms, Inc. owns interests in realty, some including fee simple absolute and some including only the coal in- —25— terests; and Meadowlark leases some of such realty in- terests including coal to AMAX Inc. After removal of the coal and reclamation, Meadowlark performs farm- ing operations on the reclaimed land. 4. Title IV of the Act establishes a tax or penalty and procedures for reclaiming lands which have been adversely affected by past surface coal mining. 5. Title V of the Act establishes a regulatory scheme for surface coal mining, reclamation, and use of reclaim- ed lands. 6. Coal Company Plaintiffs are subject to Act § 502(c) which became effective May 4, 1978, which re- quires that such plaintiffs comply with provisions of: Act § 515(b)\(2) [requiring restoration of land affected by surface coal mining operations to a “condition capable of supporting [prior] uses . . . or higher or better uses”); Act § 515(bX3) [requiring land affected by surface coal mining operations to be reclaimed to establish the “ap- proximate original contour of the land”); Act § 515(bX5) [requiring removal of top soil in surface coal mine operations in separate layers and to segregate the same]; Act § 515(b)(10) [requiring operators to minimize dis- turbances to prevailing hydrologic balance]; Act § 515 (b)(18) [concerning treatment of mine waste piles]; Act §515(b\(15) [concerning use of explosives}; Act § 515(b)(19) [concerning establishment of permanent vegetative cover on reclaimed land]; and Act § 515(d) [concerning standards for steep slope surface coal min- ing]. As more specifically hereafter alleged, defendants also are wrongfully and without authority attempting to presently enforce Act § 515(b\7). 7. Coal Company Plaintiffs have not, prior to May 4, 1978, been required to conduct operations of surface coal —26— mining in accordance with the foregoing provisions of the Act; Coal Company Plaintiffs’ compliance with such provisions has resulted in substantial initial capital ex- penditures in excess of $100 million and will result in substantial additional capital expenditures and substan- tial increases in operating expenses. 8. If Coal Company Plaintiffs fail to comply with the aforementioned sections of the Act on and after May 4, 1978, such plaintiffs will be subject to penalties of up to $5,000 per day per violation and enforcement provisions of the Act which include closure of the mines of such plaintiffs, denials of new mining permits and denials of renewal mining permits, all to the detriment and the irreparable injury of such plaintiffs. 9. After the approval of a state program under Act § 503 or a federal program under Act § 504, Coal Com- pany Plaintiffs will be required to comply with the en- tirety of Title V of the Act. 10. Coal Company Plaintiffs have paid and must con- tinue to pay a tax or penalty pursuant to Act § 402. 11. Regardless of the sufficiency of any present or future laws or program of the State of Indiana which are mandated by the Act, the United States has retained complete and overall enforcement powers under the Act. 12. The entirety of Title V of the Act and portions of Title IV of the Act are contrary to the Constitution of the United States as more fully set forth hereafter. 13. Plaintiffs’ remedies at law are inadequate and plaintiffs will suffer irreparable harm unless the Court grants the relief as hereinafter requested. 14. Title V of the Act is contrary to the Constitution of the United States in that the United States pur- -_ = portedly is exercising power to regulate under the com- merce clause of the Constitution (Art. I, § 8, cl. 3). 15. The process of surface coal mining, reclamation and/or the subsequent use of the reclaimed land are purely local activities confined within the State of In- diana and other states where such activities take place. 16. The process of surface coal mining, reclamation, and/or the subsequent use of the reclaimed land have no substantial, direct or indirect effect on interstate com- merce. 17. There is no rational basis for any conclusions or findings of Congress (§ 101 of the Act) that surface coal mining operations, surface coal mining reclamation, or subsequent land use have any effect or burden on in- terstate commerce. 18. If there is a rational basis for a finding that some aspect of surface coal mining, or reclamation, or subse- quent land use result in any effect or burden on in- terstate commerce, provisions of Title V are not reasonably adapted to, limited to, or related to removing or regulating any effect or burden on interstate com- merce. 19. The State of Indiana is presently, and was prior to the Act, regulating surface mining activities under IC 13-4-6-1, et seg. and IC 14-4-2-1, et seq. and under IC 14- 4-2.1-1, et seg. the State of Indiana is presently, and had prior to the Act, made provision for the restoration and reclamation of land located in the State of Indiana which has been adversely affected by past surface min- ing practices, including surface coal mining practices. 20. Titles IV and V of the Act are contrary to the Tenth Amendment of the Constitution of the United States in that the United States is interfering with the —23— structuring of the governmental operation of the states, including the State of Indiana, and with the functions essential to the states, including the State of Indiana and its citizens under the Constitution of the United States as alleged in paragraphs 21-28 hereafter, and in par- ticular: a. Pursuant to Act § 502(b) the State of Indiana is required to issue mining permits in compliance with Title V of the Act. b. Pursuant to Act §§ 507, 508, 510, 515 and 522(a), (c) and (d) reclamation to facilitate subse- quent land use and land use planning is required of the State of Indiana pursuant to federally created standards which are unrelated to any power of the United States enumerated under the Constitution of the United States, and such are an exercise of a power reserved to the states, including the State of Indiana, or the people. c. Pursuant to Act § 522(e)(3), (4) and (5), sur- face coal mining is prohibited, unless waivers or ap- provals are obtained pursuant thereto, and public road relocation is required under Act § 522(e)4). Such attempts at regulation are not related to, and are not authorized by, any enumerated power of the Constitution of the United States, but are related solely to powers reserved to the states, including the State of Indiana, and to the people. d. Pursuant to Act § 510(b\X6), the Act allows a federal authority to adjudicate private property rights, in that a surface coal mining permit will be denied if a dispute exists as to whether the operator has rights to surface mine. Such is not authorized by any enumerated power of the Constitution of the United States, but is related solely to powers reserved to the states, including the State of In- diana, and to the people. e. Pursuant to Act §515, standards and procedures for regulation of reclamation and subse- —29— quent land use are established. Such are not authorized by any enumerated power of the Con- stitution of the United States, but are related solely to powers reserved to the states, including the State of Indiana, and to the people. 21. Act § 503 allows the State of Indiana to ad- minister and enforce parts of Title IV and all of Title V. Act § 405(c) allows funds to be distributed to the State of Indiana, only on the condition that the State of In- diana exercises its sovereign powers by enacting laws consistent with the Act and the regulations promulgated thereunder. 22. Titles IV and V in whole or in part are un- constitutional as being contrary to the delegated powers of the United States under the Constitution of the United States and contrary to the Tenth Amendment thereof; although many of the provisions, which are un- constitutional when exercised by the United States, may be validly exercised by the various states, including the State of Indiana, pursuant to their sovereign and retain- ed powers. 23. The United States, intentionally with the purpose of coercing, intimidating and otherwise unlawfully caus- ing the states to exercise their sovereign powers, enacted the Act and so commingled the provisions which might be lawful for the United States to enact, with provisions which are unlawful, that the State of Indiana and its citizens cannot determine whether it is in the best in- terests of the citizens and of the State to exercise its sovereign powers, enact legislation, and administer Title IV and Title V. As a result of regulations promulgated by the defendants under the Act, the State of Indiana has been coerced and unlawfully forced in violation of its sovereign power reserved under the Constitution to ~~ enact legislation to enforce and to administer parts of Title V of the Act. 24. The sovereign powers of the State of Indiana and of the people, as retained by the Tenth Amendment of the Constitution of the United States, are to be exercised by the Legislature of the State of Indiana for the benefit of the citizens of the State in light of the various local conditions and other local considerations; such sovereign powers are not to be exercised under threat, coercion, intimidation or undue influence by the United States. 25. Act §503 and Act § 405 unlawfully interfere with the legislative process of the State of Indiana and the exercise of the sovereign rights of the State of In- diana, contrary to the Constitution of the United States and the Tenth Amendment. 26. Act § 503 constitutes an attempted purchase of the rights and sovereign powers of the states and the rights of the people by the United States contrary to the Constitution of the United States and the Tenth Amend- ment, and an attempt to amend and limit the Constitu- tion of the United States so as to enlarge and enhance the delegated powers of the United States contrary to the Constitution of the United States and the Tenth Amendment, all to the irreparable detriment and expense of the State of Indiana and the people. 27. Title IV and Title V of the Act are contrary to the Tenth Amendment of the Constitution of the United States which reserved all, but specific delegated powers, to the states or the people, and contrary to the federal System required under the Constitution of the United States in that the United States in coercing, threatening, intimidating, and creating undue influence upon the states and the citizens thereof, including the State of In- oe diana and its citizens and the governmental bodies thereof, including the Governor, the House of Represen- tatives and the Senate of the State of Indiana. 28. The State of Indiana and its citizens cannot reasonably decide whether to enact the necessary legislation and to submit a state program under Act § 503, or whether to remain silent and allow the United States to administer a federal program under Act § 504, unless this Court declares which, if any, of the provisions of Titles IV and V can be validly exercised by the United States without legislation of the State of In- diana, and the lawfulness of the provisions which are coercive, intimidating and undermining to the sovereignty of the State of Indiana and its citizens. 26. Plaintiffs are being deprived of their property and rights without due process of law or without just compensation contrary to the Fifth Amendment of the Constitution of the United States and in particular: a. Title V of the Act requires that Coal Com- pany Plaintiffs reclaim land subsequent to surface coal mining activities to the extent of establishing such land’s prior contour [§ 515(b\3)], without the consent of such plaintiffs as to their own property interests, and such plaintiffs will be denied a per- mit pursuant to the Act, and their property rights + gh rendered valueless unless they comply with the Act. b. Title V of the Act requires that Coal Com- pany Plaintiffs reclaim land subsequent to surface coal mining operations so that such land can be capable of supporting its prior use or a higher and better use [§ 515(b)\(2)], all without the consent of such plaintiffs as to their own property interests, and such plaintiffs will be denied permits to mine land and their property rights will be rendered valueless unless they comply with the Act. = Ss ce. Title V of the Act requires that Coal Com- pany Plaintiffs reclaim land so that it is capable of achieving prior productivity [§ 515(bX7)], without the consent of such plaintiffs as to their own proper- ty interests, and such plaintiffs will be denied a permit and their property rights will be rendered valueless unless they comply with the Act. d. Each of the foregoing require inordinate and confiscatory expenditures for equipment and in- creases in operating costs for Coal Company Plain- tiffs to achieve such states of reclamation. e. Title V of the Act allows permit applications to be denied based on proposed post mining uses [§§ 507, 508 and 510] so that plaintiffs’ interests in their land will be rendered valueless. f. Title V of the Act prohibits surface coal min- ing unless the above can be satisfied, and in other instances surface mining is prohibited as pursuant to Act § 522 and Act § 515(b\(12) so that plaintiffs’ property interests will be rendered valueless. g. The remaining provisions of Act §§ 507, 508, 509, 510, 515 and 516, as well as the foregoing provisions as set forth in a. through g., all re- quire that Coal Company Plaintiffs change their procedures and expend inordinate and confiscatory amounts for capital and increased operating costs and expenses or be denied permits, in which event the property interests of such plaintiffs will be rendered valueless. h. Each of the requirements of the Act as set forth above in subparagraphs a. through h. have no rational basis in relation to the ends, if any, which are constitutionally permissible. i. There is no rational basis for the difference between the treatment of surface coal mining and other methods of mining coal under Act § 515(bX 12), § 515(bX 15K C\iii), § 402, and Title V. —$3-- j. Property of plaintiffs has been confiscated and rendered valueless as a result of the Act without payment or provision for payment of just compensation in violation of the Fifth Amendment to the Constitution. k. Coal Company Plaintiffs in the course of developing mines to extract coal by the surface mining method, sometimes acquire the coal rights from the owner of the fee simple title by lease with the right to disturb the surface; and after the coal is removed, the surface is returned to the fee owner. The fee owner is paid for the coal by a royalty method of payment. By requiring the reclamation in the manner set forth in the Act, the cost of reclamation and the resulting increase in the value of the surface will inure to the benefit of the fee owner which benefit was not considered in the es- tablishment of the royalty payment to the fee owner. The contracts and leases of the Coal Com- pany Plaintiffs are thereby being impaired and the Coal Company Plaintiffs are being deprived of their property. 30. Act § 516 is unconstitutional and is contrary to the separation of powers and provisions of the United States Constitution and delegates power of Congress to administrative agencies without sufficient standards. 31. Act § 502(e) and § 517 are contrary to the Fourth Amendment of the Constitution of the United States in that the same allow and compel unlawful searches or seizures of plaintiffs’ property. 32. Act §518 of the Act is contrary to the Fifth Amendment of the Constitution of the United States in that due process is not accorded to plaintiffs herein if a violation occurs, since a hearing before an impartial tribunal and the opportunity to present evidence to such impartial tribunal are denied except on the prepayment of proposed penalties, all of which combine to create a naliiijun chilling effect upon the rights of plaintiff pursuant to the Fifth Amendment. 33. The penalties provided pursuant to Act § 518 are criminal penalties and plaintiffs are being wrongfully denied the right to a jury trial pursuant to the Sixth Amendment to the Constitution of the United States. 34. The “reclamation fee” assessed against Coal Com- pany Plaintiffs pursuant to § 402 of the Act is dis- criminatory as against surface coal mining, contrary to the Fifth Amendment of the Constitution of the United States; and further such fee is in fact a direct tax on property and is not apportioned among the states based on population, contrary to the Constitution of the United States. Article I, Section 2, Clause 3 and Article I, Sec- tion 9, Clause 4. 35. Act §521(aX1) which permits private citizens access to the private property of the Coal Company Plaintiffs constitutes an invasion of the constitutional right to privacy of such plaintiffs and is unconstitutional interference with the states’ rights to define the laws of trespass as protected under the Tenth Amendment to the Constitution. 36. Act § 502(c) specifies those provisions of the Act which are to be in effect until a federal or state program is instituted. 37. Act § 502(c) does not specify that Act § 515(bX7) is to be enforced during an interim period. 38. The defendants are attempting to enforce Act § 515(bX(7) contrary to their authority and the express provisions of the Act. 39. Coal Company Plaintiffs will have to comply with such provision and expend large amounts for capital and =_ incur substantial increased operating costs to comply with such section. 40. The Secretary of the Interior has promulgated regulations pursuant to Act §501(b) without an en- vironmental impact statement as required pursuant to the National Environmental Policy Act of 1969, specifically § 102(C) [42 U.S.C. 4832], and without otherwise complying with said act. The promulgation of regulations pursuant to Act § 501(b) constitutes a “major federal action” within the meaning of § 102(2\Xc) of the National Environmental Policy Act. WHEREFORE, plaintiffs pray that the Court grant (a) declaratory relief that Title V in whole or in part and Title IV as to Act § 402 are contrary to the Constitution of the United States as alleged, that the Secretary of the Interior has no authority to enforce such provisions, or that Act § 515(b)(7) is not a part of the interim program, that rules promulgated pursuant to Act § 515(b\7) are major federal actions pursuant to NEPA, and that the Secretary of the Interior must comply with NEPA; (b) injunctive relief permanently enjoining defendants from enforcing any and all portions of the Act found to be un- lawful, and a preliminary injunction enjoining defen- dants from enforcing the provisions of the Act as alleg- ed; and (c) such other relief as may be proper. IcE MILLER DONADIO & RYAN /s/ Harry T. ICE /s/ G. DANIEL KELLEY, JR. /s/ JAMES D. KEMPER /s/ BYRON L. MYERS Attorneys for Plaintiffs [Filed: August 16, 1978] yates atin Sine Ae a: tre ye Pry. a r 4 > ‘ . >> Pear. \ ! Sk (md Si 1) fdas i Af whet A Nan are) tl @ ? é iii : ' J . ee A088) OF ORT) FERC EN! FORE Fame ae { PERCENT 10 1) PERCENT Pome Fame ame Red OE Rae FORCE Peet Fate ane Pra AREA OF POTENTIAL SURFACE MINING WED sinc ovr aneas ee ” GUMTINGTQN cabs — ia Fs oe aN . wi G YY ‘ 2 . . AREA OF POTENTIAL SURFACE MINING AND LOCATION OF PRIME FARMLAND EXHIBIT 2 + ‘oe ; “vi me + rg Se ek a gt “3 , ahh as x Powrtes ’ pa ns eel et ee awe | 79 HAR wag, 3 p= tr, 7 ar te , $ « Tea - V, i . 2 S “= _ , Le -TF g 4 - — a Raat Agen oT 7 v4 . 7 Ww. ome ‘ Von { me - ? wit PoPprer *rO a + o A - cy of ma h M4 2 — . ” ti — ~ f ~ Paes wt \, ¥ om © > ia 2 SES Mes i. os %.. > ¥ , nd > > nm s " mi va u? :. ‘ seh : Re iy ° A / vf rR) +o ¢ '* ~ ‘ _s b~ > ad ° ~ ¢ f 1 a1 . eee - bs « a .* "— y Pte ~ pee “A , - . : - ¥ ‘ ifag y tal } “ a a t c fa = bal 4 a . r) iaanpat , > + \ a » , f "a s&h , oe ~ a * j Awe On ’ + Ps 7 “ , ‘ ~ - P d “ 5 ‘ ry Swit ters >. AREA OF POTENTIAL UNDERGROUND MINING MINED OUT AREA EXHIBIT 3 AREA OF POTENTIAL UNDERGROUND MINING Rimoamus waist A EARL) LEVEL, HLL ONO POORLY DOAmED \OamT NOL) Om FLOne nae © MEAAL! LEVEL POORLY DOemee LanDT WOT.) Am” GRGame KOK — ” Bee tee ems Gee teens C MRARL) LEVEL POURLT OR AmED LOnmT KOHL) me OUT ent AnD (ecu tome pero ry EARL! LE /EL POORLY DO AMED CL ATHY NOL) mm Lacun Tome verowrs Stted ome Be vatnme Pomme Artes Menchee Line etient ebony © LEVER AD OPUS FEL OR AmEO (One HOF) Om Lame ano COA VELLT CUT ¥AMH OPON TY % OPUS OTL. OOemED Ame mEeeL) ETE. POORLY Oeemee tempt en) f a | | Pe ates temee Ontw ee © UOPUE 68.) COED Caml LOL) EOL lam Lame COrONTS ” ©] Pracctan Gtenatiotd sAgsehing Se ee - ates | EARL LOFEL, POORLY OR AmHEO WATT KOrLs mt Onn OF Lonne An OL acran THE Beeeteie Beet tehe teee 4 RAREST LEVEL POORLY DRRMED \Oamt HOH) mH GL arian THK EARLY LEVEL, POORLY ORAMEED CLATET OMS GLacian TH A ROP UNE FELL CRAMER AA HEARN LETH, POOELY OHamED VOnmt ame Res cet! Menmmane F cwerte 2 OPUS FEL, CRAMER AMD EARLY LEVEL POUR) OhamnO CAATET SOLS OF GLACIAL THE MARAT LAVEA POORLY OR AmnO LTT NOK HTH Peace Rerte Pome Cotes Crates Ree ay ed Se ee = WOPUS FHL. ORAmED WATT NOLS mL ORM Ame we eee mane one to © OPE FFL, CORED LTT ORD CLATEY SO) LOO ame Lesesestte Solem Ties Come men Bes cmeree eo ne Cormeen ge hoe PRIME FARMLAND OF INDIANA = ro a TRA THERES mets Ome oT Cte Oateed nme - { o a ed be hte = Bate Gem Sete Spores . ee eeeret SON REGIONS OF INDIANA ew - down into county estimates within dis- ® wen 7) omy ad ’ wets Ae SO Indiana Crop Reporting Ouiricts FOREWORD This summary is the result of the continuing cooperation between tre farmer and 1 of the State of Indiana, the Agricultural Experiment Station, Purdue University, and the Economics, Statistics, and Cooperatives —— through 1975. Included ane State disposition, and other information related to crops; production and dnven ory numbers of Livestock, 4 { Labor and wage rates; and fon major crop and Livestock item are also dncluded. from 1866 through 1974 and county crop estimates from 1923 through 1974 are also available upon request. can. not function effectively without reliable information on and marketing decisions can be based. To meet the needs of the fanmers aid I wish to acknowledge the valuable assistance of the many Indiana farmers and ibusinessmen who voluntarily provide the rau datz from which fie official estimates are set. A special thanks is extended to our field enumeratonrs and telephone enumeratonrs who ane a vital Link in our data gathering process, and to alL members of the office who had a pant in dng cut the surveys, eval- ch ane pracsented in Gus uating the results and establishing the estimates wink publication. , elie “4a — , Clnneit Pee a, fe | as. a —— —— = = ee —x) ---- —_—— a —_ _— = —_— _—— = _— jj, = ret aw —— os Figure 5. 1977 ee Corn Acres Harvested a i Gra “+740.5 1$+J00.¥ DeEMecececest 16.% v.80 19.6 90 108 2 LeeTe.a 121 Ace2e.% 1401 ae#.0 12+274.8. WELwleccecet 100.4 11262 110.¢ aa 115 100 6-820." 14+944.2 11+03%.7 TIPTOM.ccccet Gee Te.3 77.1 120 l2ae loe Te7T20.% Vemed.e 4298.08 ' TOTAL cweetiiO2.e 1325.9 132%,2 163.0 115.5 102.2 LLSsTS3.% 194619%,2 1350290.2 : @. *ACKFOFD...: 22.8 anol as. v7 15 ie. 229%. SeO11.5 2eae2d. Dal aeewe.c.et 47.7 ye.3 77.8 106 163 ”* 7-034.) 7.691.3 @+9e4.7 FAYETTE cceeet 3.3 deed *e.0 60 10s on 2+901.2 #021.) 34499.2 WET eccceeet 80,7 93.9 106.1 6s 1196 9): 4+0S2.9% 10.399. 9351.2: SAV eccccccest 37.7 *l.e *2.6 e) oT aJ 3el2e.1 =+061.5 36Se7.1 ® secet A062 Te.6 1.2 84 * 8s $859.6 40029.) 6081.9 UNTOMecceeset 32.5 45.6 %,1 100 168 108 J+2s0.% 215.8 3-670.) WAYNE nccccee! 96.8 67.e ee.) 80 163 106 @+427.* 0-979.0 o+89e.)1 ' TOTALcees? £66.3 *32.3 *3¢.3 ee.7 166.7 %.7 WedST./ e7e3@l.? #3-037.0 ' —ORE_Eq[2]">#]>"#]#]#R#R2EE[[{E>Dp—p{)>=>20>000"0"0"0"00"0"""©®"N[="|==—=..:°:°e—e-30—>—>— -60- —89— Table 10. comm row eHaint ACOEAGE. YIELO amo PROOUCTION uy Cuvmr 1S. Ino lamas 197% A L97TO EVISED. An LOTT -REL IM INAH ' aCh€$ me@vesTeD ' YICLO PER acre *®vO0ucT I On OrsT. Ccowmry 1 ' ' ih : eve ft 1 ) 19? : ier? + TwOuSamy aches = - wuSHELs - = THOUSAND 4USHELS = Te DOVIESS.ccee8 ve.3 er. o4.s 106 i3e 112 a+000.1 ile3ar.@ 9+aaS.1 WBesseset 97. i.e o2.0 % » les -“ SeSile. @eeA).2 @+04).7 122.6 110.0 ie wu? 1 Lhe@Oe.e = 140370.9 = LD eee. — HHEEME oc oeee . . ie. ai) 102, 4297.4 e-024.¢4 #+092.% 148.5 128.4 hie 12e- lia L2e7e7.a 1te347,7 Le+4S).6 waatin 41.5 21. ™’ "1 ¥) Le@dec?d 4-423.) 1 +999.) ‘Pla€.. *1.9 1.7 90 1aa- M1. J+2la.? *+324.7 3+e26.1 Pvecy.. 102.1 %.7 100 15 loe 4312.0 «he PARA O-978.2 Srtncen.. $e.7 se. 7 63° “ 3+$23.0 ~+?07.9 #e361.5 WAL IVONe eset 70.4 oe.9 lee tiie 12. 4-066.0 TATA. Tava. VAMOM Mra pier. i 36.6 31.8 loz lo? lie 3+2%0.7 30998.) J.O1e6S Semrerecsens 37.3 oe.3 *3.1 v2 lo7- 1a 30428.) *+TTe,) SoALS.) TOT Acces! TI¥.6 620.4 T%.% 100.8 112.0 103.2 72+$23.% o4.993,° 4}. 7ee,6 ' Be We. ccc eeet 3.4 3.6 Li) 109 104 218.2 393.4 370.3 ¢.? *.? oe ” ed 359.7 bAeLA CAT.) 3-3 3e* bad ie. ” 204.6 3346.0 226.5 28.3 27.9 ga % 102 le@lica 4e377.9 2433.0 oe.7 a?.i "1 loz &+$25.5 7.$09,7 @rAld.e 20.8 0.1 7) 10s 9) Le97t.0 3-9nn.0 2-411.9 10.4 10.2 9) 100 THO. qa7.a 1015.0 . 20.6 20.8 ve ier w LeT¥?.a 3+047.0 2:S73.> seeeees? 12.3 1$.2 15.6 ao ”» 101 982.1 1-292.) 1eS44.1 eA TNGTON..: 69,0 $1.9 %.3 el 10s 3+034.4 3+4A1.2 &+AS2.4 ' TOTAL cee! 224. 268.2 arr 64.2 103.1 9e.2 19302.) 23+249.2 23-627.6 : Pe Chet nccecet 18.2 20.6 21.2 6 92 ‘7 1e#60.9 i+*79.0 2-068.) eeoet 19.1 1%.@ 17.4 o2 oe bl 93$.3 L+e@?.) l+oed.? FOIL IMeeset § 68,% *3.)3 4.5 ee ” lee De*71.l *.e9).) $+270.2 wr eoet 16.9% i?.e \e.$ 72 o ve 1+215.4 e729, 1+422.2 SOMMINGS cone! 2e.l Jie? 29.4 ae 13 ee 2+388.) 3+993.5 ZeA2?od BID seccceest *.s $.7 $.6 iy) 10 106 207.7 $94.2 $40.0 MIPLEVecceeet v.11 3.2 Jeo 72 lo? lee 2+304%.0 3+463.4 3401.7 scot seewecet ide) ie.9 18.3 72 103 is 92.3 \+S38.) 1+7S5.0 SetTZEeano.: 7.@ 8.0 7.® ei * oe *26.0 724.7 770.1 ' TOTMecee! LTS.a 199.0 200.2 Te.* 101.2 LGhe® = ldeeSO.e (206132.7 205303.0 ' ' STATE. cecccees!SO30.0 0306.0 e210.0 .8 110.8 102.0 491+74@.0 644+009.0 433+020.0 : -61- wy: “p Ss 4 ca - palmate yore 60+ 45-59.9 30-44.9 ” = 15-29. ms ' velew 15 Z| a os ” i} as ta" Figure 6. 1977 Acres Harvested, Soybeans for Seans -62- Ak. atebr ce me te SOVMRANSE = Avdimves VIEL ah “RUUUCTION of LUolei lide iudletas 197TH anc 1976 REVIS b+ AND LOT? PHFL IMI Many ACRES. .ESTEO YIELO PEM acae we: Pwuouc row * OFST. COunrY s 3978 8 197% & 097 & L076 8 3076 & BOF? 8 1975 1976 1977 = TWOUSANO ACRES s YIELO 460 PRODUCTION BY COUNTIES. INOLANA+ LY7S aNO 1976 PEVISEDs AND LOTT PRELIMINARY , : ACHES MAAVESTEO ' YIELO PE® acae ' auOOuUCT ION OIsT. COunTY . $ 1078 ¢. 107% 8 L077 8 3078 ¢ 1078 8 1077 3 1978 8 070. 8 1077 —"TrOUSANO ACHES = Sbusrels = ="Trou : Te OAVIESS.-ee-t 30-8 26.2 33.9 3 BT 1+006.48 1,063.9 tel34.0 oveo ' 9.9 11.8 2 31 26 3346.4 206.5 325.1 3.0 $3.6 Be] a’ 7 LeT3761 1eS76.8 7+003.% 22. 27.7 36 1s Phy 904.4 779.5 920.6 KNOB cceseeet 9.45 *2.9 $2.1 32 oo) oh 1+369.0 0693.6 L+79%.9 MORTINescesel 6.2 3.2 3.8 27 29 33 112.3 92.5 l23. TrOUSANO fe pee ° be S697 Me conet loel 4t.? 37 . oJ 2 630. an 1+$66.4 1eS24.3 1+667.6. MART IMs csceet i. 1-9 1.7 35- 1 39 64.3 $4.0 40.0 PLE ceceeeeet eo2 3.0 % 3 Je 206.5 201.6 17.2 ‘ *1.7 “4.8 “6 33 2 1+7S0.5 \+3%e,7 1304.9 LB62 \*.6 30 23 33 $15.3 Sliel eel 29.9 27.9 *1 ss os 1166.8 1+0S9.7 5+023.7 6.0@ 7. a? 37 “7 241.4 209.3 350.48 7s 6.3 Jo 2 «1 233.7 71163 37.1 234.7 195.5 36.3 32.9 @lel Aste3.6 7.653.$ 4,025.5 6.2 0.2 72 33 38 S.A 6.5 7. 1.4 1.4 33 2 49 $3.9 Sie S+.3 ¢.9 0.9 ye 73 » & 30.3 27.2 26.0 1.6 6.5 3? 2s 3s 394.) 269.9 29e.1 1s. 1-7 38 27 a4 “97a 372.1 “2.5 6.3 3.7 Je 23 aA 154.6 101.9 139.9 1.1 1.6 “@ 30 «i *6.1 32.3 “0.8 $3.3 &.1 37 26 “4 207.1 1Sl.6 155.1 «6 3.2 2 23 2? 99.0 GAs 66.7 14.6 Wie? we zs a7 #7665 33+.¢ ©30.9 ' TOT Moeeet 98.32 $7.0 se.3 35.3 23.5 36.2 1+946.6 166S1.9 1661.9 ' Fe LAMM occceeet 6.2 e.6 *$.6 *. 27 32 234.7 175.4 178.6 1.¢ 2. 1.7 33 30 39 $2.2 70.9 6h.0 7.7 7.8 6.3 37 38 so 26¢.7 204.5 313.5 *.3 *.2 3.6 J Jo 3s 150.2 126.0 124.6 AMAT Be eet o.8 7.7 ¢.3 31 27 Vv 204.3 206.7 232.0 WUD sececeeet 6.7 9.7 6.4 2 23 27 16.0 15.9 3.6 RWW. cceeet 13.0 1.1 1\2.¢@ 3) se 1 #33.6 $05.4 $1*%.2 MOTT ceceeet 3.6 3.@ 2.8 2 26 2 103.5 92.2 89.2 Sot tiem amp, ' 1.6 ta 1.4 an 26 ”7 Siel £9.6 $1.4 ' TOT acces! 4453 o4.@ 40.8 33.9 30.6 4.8 1-$67.9 LeST77.6 1983.7 ' ' STATE. cecccceeet 1006.0 1see.@ 1286.6 4.0 46,0 “4.0 @1+600.0 9*-+000.0 $%-400.0 ' RNR SE > ESS AES OBR 1 EME ET ‘ -56-- =" EXHIBIT 20 AFFIDAVIT OF LOYD R. JONES Loyd R. Jones, being first duly sworn, states: 1. I am employed by the United States Department of Agriculture as the Executive Director of the — Stabilization and Conservation Service for ndiana. 2. As a part of the official duties of the Agricultural Stabilization and Conservation Service which is an agen- cy funded and operating pursuant to federal law, records are kept concerning set-aside and diverted acreage of farmland for which farmers are partially compensated not to grow grain crops, which set-aside and diverted acreage can only be used for pasturing purposes. Such records are under my care, custody and control as a part of my duties as Executive Director. 3. Attached hereto are two pages which are true and correct copies of records kept and maintained by the In- diana State Agricultural Stabilization and Conservation Service, which in Column No. 9 indicate for each county within the State of Indiana, the total amount of acreage set-aside and diverted under this program and on the se- cond page at the bottom of Column No. 9, the total of the acreage within the State of Indiana set-aside and diverted under this program for 1978 was 369,135.6 acres. 4. There were 5.9 million set-aside and diverted acres nationally in the 1978 Feed Grain and Wheat Program. [Dated: March 7, 1979] /s/ LoyD R. JONES $6 — . ( \ e | z-tes'ew rt orci OP ag ghed Lacey ypu'ho! A | se OH aye'3! wre | set t} sett pee PEL ceith'T cat eely FI jsaes ma Wi te ee kik 3 *LL@ yik igTs) SY ETTS GintCkt!) SEER LT ie Ee es U Bid r 2 = Cr la ej. es ~ MIKE d “ 2¥.. 4 27R f* ees . KVATE 2 Beal » “esd Be? "> ae af ee $4 4 ALU i) CTT) ras Phi 5 OS A Wii A TE) Be =: : . rat a vert : = J eeern Trisv jh conch Fst : = IZIXLD ML nine ste seteh 24st 7 + ver o*farl 2*v2e A.D: ov.¢ o Tt 2 SAE homens ve e 6A9FA 2 SEs 2-e/ KM. 2 a -. - aD ¢ 7 Gaia bey 0: Oell = = Sree AE - [i*3 Bai 01) = = Beni i Fefeoe | f src 7 AS = = LB i 79 seers MLE 7 =—T S ceet la “WA ee t F 4 27 73519 Pte? fe: ¢ t D P/IATs ME - | ey? “e Ste tte sn ae = La Tey : Ms ~w 7 arac @ eed: =~ a a e- . ¥-¢ In - - -_ Ce - y TERF tet 77 9SE = _— * o7is elitl F+an? = - aay 4 » .eaas | O 2008h = = . 77 ° "hes Fv? ev - . Tests ran) Ere | 7 - 67 2 ey ST *s = Vacs, Seats, ovr XE 4A o°t? “$s D Ahtor) F°2sé =% — FFF Th 2 BT | ae PE Me OAD - - OUstth| 8607 | 4 oest | OF Fn9 —_ "FRAT os Tt = — ryLiii: Zz} f't68s le e30// = - Al_ © efel Poy7 UT) ° é 7 Brrr eth OP eeei-E a x (777) Satel v-ese . @* eet - CO S2hli Zirh | Se rssei ote Bi7Tti/s mS? /M aT tres | i esis] € isge/ weve sn ey a a2 jeeee ats jv'3 So¢gt e'o9 Terkel Fe Fw - |wsty te ae Lak teed RAIS o Tithe] oe ache! = oor |osa Tat? | FEAT 9 Aes ea oor, | 7699 uto? | & e0cs) 5 th = — | e's & @30/ | £-Pt On Wsarte > 37 —- $5 °¢b9 eel ft £:07 93) &* soci * = 6ee's3) Sel Tevse- Cal ©? 3b z ae Cit LT) iPad ETE Geel F 7! a. e-es © 2*o. VEL £97 Csr. J ‘vi vs -8* As oe 9 1°41@e -+ ~¢°@ B*ace fad: 7s the ch 2°29 AI >" y 4m Oe Fal a = = Pewee fi x “A -t4tee | TELE La ead § GE ITT ~- eer Tia Tia ee CO a O° lIO7F wo Sess - ,O'sserl ¢ 4 -a 93 F v'ese PSAs ectv poe: yma 75) Le Re 2 7 STSVE LG s'¥vle Seventy ese Rote UL RSA PHI rl o'liv?, : - Ftenon| AT LS "Core L-o/Sh ZIT Ad Oesp tcl west? | J beet | -F Ooge: ae See S°47e | EET : T7FhAz Vere 2 vz biol 7 tier THis ot exit V's , Presser 9 °t. Sh o-3is! a°ths STOEL At fers "7s — en ee *evttee adv — dnt Aa tot ad. b & = = 19656" . ROITE ME RASS Siriry ‘ o tenes rr "se 3s feo eFe. pri © Vs - = PehneOhTl 695 ? i F= 77] ter? | ce sdec | © 0s S725 = ae i 51) TEE A0y7 "9b21 7 #27 12° 7_779e | - TG | parvel| F37 Azer eH rE BIL eee Tat ST ter Fer ht th : 2°'f¢1 14°17 Cb8i StS 4 8th eag/ F9G FN cae - Tish Eu Lest SACs | 2S = ae resi) Mf jeoshti Te 8a7 Foote 5 = tHe ahs? lA sche Ls PT) Pee = Perit 24 ; pe ees (5s 8, Ae! Ztenist| Feet (Avie 72 tee | © tre . at he = 4490 vA ? FITS T- Mien ot? ve Sioreeil -tr97 “Hest h-LIhEL 469 | -5 FF o-¢ e-eroe 46 ____ | seven = eee Orr > fw om 4s (TEE FARES CIP aVATS “os ef = -* A ‘hts (71 FT rs me = “EGR CR Ete Ti eche [ae - ccog -$s9 = - 0-42 asi AS/ —T ee ——T easel TT Ire eae = = |9 4257 3 ek ee =" |e sae efas [OTIS be scqhd Cae Pee MEE 7 —"Prerstal « Sn . Witte, [eee WELT Aig ak. - [2° 89s Tee | 1 rr) ogy, waa ‘PFT. ; ar v “* OTe * . 2°S~e a Ftct “hes Tie ha —: : rier a5 7i3 cir Rng: | Mb - Sees “$ ffor & — wre ere 8 ary ie CTASKE C57 SE er ——T Wid Seis - > . orf: 4 ct I AO, ae a¢? Rte oan = ssnano “f , yeu" ‘y 4 ver * © 2 Ae e —e- EXHIBIT 40 REVIEW OF RECLAMATION PLANS UNITED STATES DEPARTMENT OF AGRICULTURE SOIL CONSERVATION SERVICE 5610 Crawfordsville Road, Suite 2200, Indianapolis, In- diana 46224 September 20, 1978 ADVISORY—CONS—IN—13 From: Buell M. Ferguson, State Conservationist Re: Plan Review for Restoration of Prime Farmland The Secretary of Agriculture, under the Surface Mining Control and Reclamation Act of 1977, has assigned responsibility for providing assistance to state surface mine regulatory agencies to the Soil Conservation Ser- vice. The Soil Conservation Service will receive requests from the Jasonville office of Indiana Department of Natural Resources, Reclamation Division, to review reclamation plans for reconstruction of prime farmlands. These re- quests will be received by field offices in the counties where mines are located. Field offices will be responsi- ble for making the review and returning the plans to the a office of IDNR within 15 days after receiving them. The attached procedure is to be used when reviewing plans for reconstruction of prime farmland. The review and comments will be limited to the prime farmland aspects of the plan. It is anticipated that most of these reviews can be made in the office without field review. Retain this advisory and the attached procedure until further notice. /s/ Buell M. Ferguson State Conservationist Attachment —99— PROCEDURE FOR REVIEWING PLANS FOR THE RESTORATION OF PRIME FARMLAND (PL-95-87) To adequately review a plan it must contain the necessary items to evaluate the reconstruction of prime farmland. The review will be made on plan content only, without any assumptions as to the operator’s intent. The review and comments will be limited to the prime farmland aspects of the plan. If it cannot be determined by reviewing the plan that these items are adequate, it should be so stated in the comments. The following is a list of items that need to be checked on each plan: 1. When stockpiling of soil horizons is necessary to ac- complish soil reconstruction separate stockpiles will be needed for A horizon soil material and for the mixed B and C horizon soil material, or for other suitable plant growth material. A separate stockpile area will be needed for the C horizon soil material if this material would adversely affect the productivity of the soil or if separate handling of the C horizon would enhance productivity. 2. Where it is found that a particular horizon or com- bination of horizons or field identifiable units have the best potential of enhancing post-mining produc- ayy. that unit or horizon shall be saved and replac- ed. 3. The average major horizon thickness for soil reconstruction should be shown on the plan and needs to agree with the major horizon thicknesses for the original map unit. 4. The plan should specify that soil reconstruction of prigee farmland will be made with the original se- quence and thickness of natural A, B & C horizons to the depth of the root zone of the original soil, but it is not necessary to exceed 60 inches. 5. The mechanical equipment designated to be used for restoration is capable of removing and replacing the designated horizons to carry out the plan. —100— 6. The plan needs to show that restoration will be to the approximate original contour. If restoration will not be to the original contour, exceptions must be identified and determined to be adequate. 7. A determination must be made that the restoration will be completed in such a way to permit the original (pre-mining) land use, or better. 8. The grading plan needs to allow for some settling of the soil so that positive surface drainage is provided on all areas that are restored. —101— EXHIBIT 41 AFFIDAVIT OF WILLIAM RICHARD BYRNES Comes now the affiant, and upon his oath deposes and says as follows: 1. That he has been employed by Purdue University since 1962, and since 1975 has held the rank of Professor and Assistant Department Head of the Forestry and Natural Resources Department. 2. That he received his Ph.D. in Agronomy from Penn State University in 1961. 3. That he is familiar with the Indiana laws relating to the reclamation of surface mined areas and the use of —_ reclaimed following surface mining operations in Indiana. 4. That the first Indiana surface mining statute was enacted in 1941, and that the principal land utilization of surface mined areas was in trees and tree species. 5. That since the enactment of the 1967 Indiana Sur- face Mining Law there has been a shift in emphasis by the State of Indiana from forest land to range land, pasture and hay and some row crop. 6. That the land use determinations made for the reclaimed areas in the State of Indiana by the State of Indiana have been valid determinations for the lands in- volved. 7. That the area in which surface mining operations are conducted in Indiana is suited for forest/range land utilization as well some lands which are suited for agricultural purposes. Further affiant sayeth not. [Dated: April 18, 1979] /s/ WILLIAM R. BYRNES —102— EXHIBIT 45 MINUTES OF THE STREAM POLLUTION CONTROL BOARD MEETING HELD IN ROOM A-419, STATE BOARD OF HEALTH BUILDING INDIANAPOLIS, INDIANA June 19, 1979—SIXTH MEETING * * * ABANDONED MINES DOCUMENT WCIEDD—REGION 7 5. Mr. Michael Harding explained that at the May 15, 1979, meeting the Stream Pollution Control Board deferred action on the “Analysis of Abandoned Coal Mines in West Central Indiana,” document prepared under Section 208 Water Quality Management Plan- ning for Region 7. The Board directed the staff to meet with representatives of the Coal Industry and the Region 7 staff to discuss proposed changes to the certification recommendation. A meeting was held on May 31, 1979. As a result of the meeting, the following wording should be added to the certifica- tion recommendation such that the Abandoned Mines document will be certified with the un- derstanding that: 1) The only mine drainage problems documented were caused by coal mines abandoned prior to ea Indiana Surface Mine Act (IC 13-4-6 et seq.). 2) The report suggests feasible techniques that may be used as a base for devising individual site plans. 3) The priority guidelines are set up on a “four priority system” and that sites within the four priorities are not listed in order by magnitude of water quality impact. —103— 4) Further refining of the Best Management Reclamation Practices be done in consultation with property owners. * * * After considerable discussion, Mr. Andrews made a motion to accept the staff recommendations and cer- tification of the WCIEDD Abandoned Mines Docu- ment. The motion was seconded by Dr. Huegli and passed unanimously. /s/ ROBERT A. HOLT /s/ ORAL H. HERT Chairman Technical Secretary —104— Defendants’ [Appellants’] Exhibits REPORT OF 208 WATER QUALITY PROGRAM, AN ANALYSIS OF ABANDONED COAL MINES IN WEST CENTRAL INDIANA AND SUGGESTED RECLAMATION TECHNIQUES (WITH AN INVENTORY OF ACTIVE STRIP MINES) June, 1978 * * * 9. Except for some sedimentation problems, active strip mining in West Central Indiana is causing only minimal surface water quality problems. [Page 216.] 8 See note 2 supra. —105—- EXHIBIT A AFFIDAVIT OF DONALD F. SMITH Donald F. Smith, being duly sworn, deposes and says as follows: (1) I have a Bachelor of Science Degree in Agricultural Engineering from Texas A & M University and a Master of Engineering in Agricultural Engineer- ing from Cornell University. I am an Agricultural Engineer for the Division of Technical Services and Research for the Office of Surface Mining, United States Department of the Interior, Indianapolis, Indiana. As an Agricultural Engineer I am knowledgeable in the areas of water, soil, and agronomic systems and their relationships in providing a productive environment for plant and animal life. This includes knowledge in the science of the reclamation of disturbed lands. (2) The mining of “steep slopes”, as defined in the Surface Mining Control and Reclamation Act of 1977 and regulations thereunder, is rarely encountered in In- diana. Steep slope mining refers to contour mining as found in the Appalachian Coal Basin. The Eastern In- terior Coal Basin, which underlies a portion of Indiana, has flat or gently rolling terrain with occasional steep slopes. Only 2 percent of Indiana’s coal reserves are located in steep slope areas. Neither AMAX Coal Com- pany nor Peabody Coal Company are currently mining on steep slopes in Indiana. (3) A current study by Argonne National Laboratory, an independent research laboratory, entitled, “Projected Acreage of Prime Farmland to be Disturbed by Coal Mining in the Cornbelt, 1980-2000”, projects that in the 15 surface coal producing counties in Southwestern In- diana, approximately 40,000 acres of prime farmland will be disturbed by surface mining over the next 20 years. (4) Further, the State imposes no requirements other than grading, to assure that strip mine operators prac- —106— tice proper soil handling and soil segregation techniques along with proper soil treatment and revegetation prac- tices all of which are necessary if land is to be returned to its pre-mining productive capability. (5) An information system, also developed by Argonne National Laboratory, “Surface Mining and Land Reclamation Information System”, (SUMLARIS), which extracted data directly from surface coal mining permit applications and reclamation plans in the State of Indiana for the year 1976, showed that although reclaimed mine lands were being graded to slopes which would accommodate row crop agriculture, the permittee had no intention of returning the lands to that use. Of the 69 mining sites which had a pre-mining land use of row crop, only four were proposed to be returned to row crop agriculture. The others were to be returned to various other uses. (6) a number of scientific studies conducted by ex- perts in the field, including those listed below, demonstrate that the technological capability exists for an operator to return prime farmland to its pre-mining productive capability. Based on studies of this type, it is clear that operators can make a showing that prime farmland can be returned to its pre-mining productive capability. (a) In “Use of Soil Materials on Spoils—Effects of Thickness and Quality” by J.F. Power, et al., North Dakota Agricultural Experiment Station, Reprint No. 891, from September—October, 1976, Farm Research, Vol. 34, No. 1, researchers con- cluded that requirements for saving and respreading soil material after mining will meet the needs of most crops grown. (b) In “reclamation of Coal-mined Land in the Northern Great Plains” by J.F. Power, et al., Journal of Soil and Water Conservation, March— April 1978, the authors concluded that soil resources can be saved and respread without diminishing their ability to produce equal yields. —107— (7) These studies include extensive research in II- linois’ cornbelt soils, which are similar to Indiana’s corn- belt soils, by a number of researchers. Among those researchers is Alten F. Grandt, Director of Reclamation, Peabody Coal Company, who in reviewing research and after conducting studies has concluded that: (a) corn and soybeans can unquestionably be grown on land that has been stripmined for coal; (b) mined lands can be returned to a high level of agricultural productivity; and (c) lands can be returned to equal or higher levels of productivity after mining. Among Mr. Grandt’s studies are: “Reclaimed Mined Land in Illinois for Row Crow (sic) Production” by Alten F. Grandt, Director of Reclamation, Peabody Coal Company, published in the Journal of Soil and Water Conservation, September—October, 1978; “Mined-land Reclamation in the Interior Coal Province” by Alten F. Grandt, Director of Reclamation, Peabody Coal Company, published in the Journal of Soil and Water Conservation, March—April, 1978; and “Reclaiming Illinois Strip Coal Land With Legumes and Grasses”, by A.F. Grandt, and A.L. Lang, University of Illinois, Agriculture Experi- ment Station, Bulletin 623, April 1958. (10) Also, throughout the legislat:ve history of the surface mining initiative, industry asserted time and again that it is technologically possible to return prime farmland to its pre-mining capability. John A. Conlin, a plaintiff herein, representing AMAX Coal Company, wrote the attached letter to the Honorable Dennis T. Avery, an Indiana legislator, in which he stated that “the coal industry is quite capable of returning all sur- face mined land to pre-mining productivity levels. In some instances, actual improvements have been noted.” —108— (11) The prime farmland provisions of the Act and regulations can be accomplished by using readily available construction equipment such as pan scrap- pers, bulldozers, dump trucks, and graders. The compac- tion requirement of the interim regulations, section 716.7(gX5Xi), 43 Fed. Reg. 62695, can be achieved by laying down the A and B horizons, separately, in thick layers and avoiding excessive vehicular traffic over that area. It is a common farming practice to deep till the soil to alleviate adverse compaction problems. This prac- tice may be used by the operators. In addition, dump trucks can end dump the A and B horizons, separately, and small bulldozers can push the topsoil into its final configuration. [Dated: April 17, 1979] /s/ DONALD F. SMITH | ee Sa ce yar aah 4 i 4 1 7 af Removing topsoil before stripping. - 4 —— we a . ‘ —i6— AMAX COAL COMPANY A DIVISION OF AMAX INC. 105 SOUTH MERIDIAN STREET, INDIANAPOLIS, INDIANA, 46225 [317] 266-2626 JOHN A. CONLON DIRECTOR—GOVERNMENT RELATIONS March 18, 1977 The Honorable Dennis T. Avery State House Indianapolis, Indiana 46204 Dear Dennis: We have just learned that the Carter Administration in- tends to support an amendment next week to H.R. 2, Congressman Udall’s anti-strip mine bill, which would place a moratorium on strip mining in so-called prime agricultural areas in the Midwest. If enacted, such a proposal would have the gravest catastrophic effect on Southwestern Indiana. The attached chart indicates which of our mines in Indiana would be affected and the financial loss which would be suffered by mineworkers and local businessmen as well as loss of taxes to the counties and the state. Beyond the economics, such a moratorium is un- necessary from a technical and scientific know-how standpoint. On both counts, the coal industry is quite capable of returning all surface mine land to pre-mine productivity levels. In some instances, actual im- provements have been noted. Indiana Department of Natural Resources records indicate that for the permit period from 1976-1977, AMAX Coal will mine 1652 acres out of which only 707 acres were either being used for row crop agriculture or had such capabilities prior to mining. Under our reclamation plan we have filed with the state and for which we have given bond, we will be returning 1052 acres to row crop standards—an almost 50% increase in row crop acreage! A moratorium for five years, as is being currently proposed, would have the gravest economic consequences for the thousands of Indiana coal miners and their —111— families. Moreover, the ripple effect of such a ban would be felt throughout the entire state. We urge you to im- mediately communicate your opposition to such a proposal to Congressman Phil Sharp, who is a member of Udall’s House Interior and Insular Affairs Com- mittee. Copies of your communication should go to Presi- dent Carter, Secretary of the Interior Cecil Andrus, Congressman Morris Udall, and the entire Indiana Con- gressional delegation. Addresses for these individuals are enclosed for your reference. If you have any questions at all on this matter, please feel free to get in touch with me or Geoff Emerson im- mediately. Thank you very much for your help. Sincerely, John A. Conlon JAC:tmr Enclosures 7 a —112— REFERENCE 1 PROJECTED ACREAGE OF PRIME FARMLAND TO BE DISTURBED BY COAL SURFACE MINING IN THE CORN BELT, 1980-2000 David P. Bernard Division of Environmental Impact Studies Argonne National Laboratory Argonne, Illinois Introduction In April 1977, President Carter submitted to Congress a National Energy Plan (NEP) which called for in- creasing annual coal production to more than one billion tons by 1985. Among the many environmental concerns associated with accelerated coal extraction is the poten- tial for an increasingly large amount of agricultural land—specifically, prime farmland—to be disrupted by the mining process. Despite the vastness of our country, prime farmland comprises but 15% of the total land sur- pea and yet 17% of the strippable coal is beneath this land. Concern for the susceptibility of farmland to surface mining is by no means confined to recent times. In 1939, Hanna and Vandervliet pointed out that in certain II- linois counties, strip mine companies owned or con- trolled land which on the average had a better produc- tivity index (on a scale of 1 to 10) than the remainder of the land in the given county. This led them to suggest that lands in strippable areas should be rated according to their agricultural value and that mining should be prohibited in the better farming areas. A 1976 report by Ostendorf and Gibson contained the same message, again for Illinois. In 1977, Interior Secretary Andrus proposed to Congress that a national moratorium on mining prime farmland be imposed for a period of five years to allow a study to be conducted into the impacts of surface mining on prime farmland. In passing the Surface Mining Contzor sit ce ke tion Act (SMCRA) of 1977, Congress rejected the sugges- tion for a moratorium on mining prime farmlands, ‘ine dicating that as long as a given parcel.of land: could, and. e, would, be restored within a reasonable amount: of. timet es, ox to its original level of productivity, mining could’ com=.) 2a mence at that site. Consequently, although. numerous: » =. authors (e.g., see References 6-9) have indicated ¢oncern..::°* over the agricultural impact which can accompany coal *:” extraction, it is now important to begin a dialogue in .~ which the reality of surface mining on prime farmland is considered in quantitative terms. As a first step toward this goal, this report presents a numerical analysis of the acreage of prime farmland which could be affected by surface coal extraction in the Corn Belt during a 20-year period, 1980-2000. Method The Corn Belt farm production region was chosen for this study because all five states—Ohio, Indiana, Illinois, Iowa, and Missouri—contain mineable coal and are im- portant producers of agricultural products. To achieve as high a degree of accuracy as possible, modeling was carried out at the county level; however, the results are of greatest value when considered at the regional level. Direct prime farmland disturbance (the acreage im- mediately over the coal being removed) at a county level was calculated using the equation: ps [(4)7] p where P = prime farmland disturbed annually, in acres e = projected total yearly coal extraction, in tons s = fraction of total coal extraction to be surface mined d = coal density, in tons/acre-foot t = seam thickness, in feet —114— r = recovery rate, fraction of total coal mined p = county prime farmland area, in acres c = total county |prime-farmiand| area, in acres The assumptions were: (1) the bulk density of coal throughout the Corn Belt region is 1800 tons/acre-foot, (2) coal surface mining in this region is 98% efficient in removing coal from the scam, (3) there is but one major seam per mining operation which may contain partings, (4) the coal and prime farmland are homogeneously dis- tributed throughout the county, (5) prime farmland wil] not be differentiated and avoided by surface mining operations, and (6) the SEAS model data for future coal mining reflect the NEP and are an acceptable indica- tion of potential future mining activity when considered at the regional level. According to Treworgy et al., the bulk density of Illinois coal is around 1790 tons/acre- foot, but for most calculations involving bituminous coals, a value of 1800 tons/acre-foot is considered accept- able. On the average, current surface mining operations remove 80 to 90% of the coal, but future methods are ex- pected to be more efficient, hence 98% efficiency. Although there are multiple seams in the vertical profile of most mining areas in the Corn Belt, usually only one is mined at a time, because the others may either be un- economically thin or too deep. The “best available infor- mation on prime farmland distribution is given at the county level; therefore, calculations combining data for coal and prime farmland resources inherently have the assumption that each of these two resources is homogeneously distributed throughout the counties be- ing considered. The flat land surface and the lack of woody vegetation and buildings make prime farmland sites attractive to mine operators; thus, without economic or regulatory disincentives, these lands are often considered choice sites for mining operations. Furthermore, as noted earlier, the SMCRA has made it possible for operators to legally mine these lands, provided certain regulations and performance standards are met. Finally, the SEAS data are considered to be —115~ reasonable forecasts of future coal production, as shown by a comparison between them and two other sets of es- timates (see Reference 12). In addition to direct disturbance of land, surface min- ing also results in indirect land disturbances at the mine site such as: haulage and service roads, overburden and topsoil storage areas, sediment retention ponds, and coal storage piles. Together, the direct and indirect land dis- turbances give an estimate of the total acreage affected. Based upon data of the Council on Environmental Quali- ty and the EPA, it is assumed that the total acreage affected in the Corn Belt is a factor of 1.2 higher than the acreage directly disturbed there. Thus, to arrive at an estimate of the total land disturbed, an additional acre is assumed to be affected by the above-named land uses for every five acres directly disturbed. Results During the 20-year period 1980-2000, the level of [sur- face] coal production in the Corn Belt states is expected to increase, reaching 130 million tons per year by the turn of the century (Table 1). If this level of coal produc- tion is reached at the rate predicted in the model, by the year 2000 some 433,000 acres of land and 122,000 acres of prime farmland are forecast to have been affected by the previous 20 years of surface mining for coal (Table 2). This is equivalent to 0.2% of the total prime farmland acreage in this farm production region. It is important to note that the relationship between non-prime farmland disturbance and prime farmland disturbance is not linear. As seen in Table 2, Ohio is projected as having the largest acreage of land disturb- ed, but the amount of prime farmland forecast for distur- bance is lower than for several other states. This is because the coal producing areas of eastern Ohio do not contain as much prime farmland as do the coal produc- ing areas of other states, such as Illinois. To lend perspective to the analysis of the prime farmland acreage disturbed by surface coal mining in —116— the Corn Belt, preliminary estimates have been made of the future acreage which could be affected if the present rate of prime farmland conversion to urban, roadway, and water uses (Table 2) continues at a constant rate. Data used to extrapolate the acreage devoted to urban, built-up, and water areas were taken from Lee and represent historical events of the period 1967-1975; definitions of the land use terms follow criteria publish- ed by the U.S. Soil Conservation Service. Presently, over 1.3 million acres of prime farmland are devoted to “irreversible” land uses; if current trends continue, another 3.4 million acres could be affected during the next 20 years (Table 2). Discussion Estimates of the prime farmland acreage that could be disturbed by future surface coal mining should be viewed as trend indicators rather than absolute predic- tions, for considerable uncertainty still surrounds the coal industry and the legislation affecting it. For exam- ple, the Clean Air Act Amendments of 1977, the Surface Mining Control and Reclamation Act of 1977, and the Federal Coal Leasing Program Amendments of 1977 are likely to affect coal mining throughout the remainder of this century; however, the full impact of these legislative actions has yet to be registered by the industry. Furthermore, productivity in the coal industry is in part related to other factors such as the supply of foreign oil, strength of the national economy, and dependability of the labor force servicing the coal mines and shipping routes. To ignore the possibility that future changes in these areas could occur is unrealistic, but to predict these changes is impossible. Consequently, the forecasts in this paper, although made as realistically as possible, must be regarded with caution. Reconsideration of several assumptions in the equation suggests that the acreage forecasts may be too low. For example, the bulk density figure of 1800 tons per acre- foot and the 98% extraction efficiency are probably too —117— high, yielding estimates of the direct acreage affected which are too low. In addition, the factor of 1.2 used to estimate total acreage disturbed is conservative, since the National Academy of Sciences estimates a factor of 2.0 and the environmental statement for the Star Lake- Bisti coal mining project in northwestern New Mexico uses a factor of 1.56. However, both of these studies refer to western mining operations, and thus the factors used may not be appropriate for operations in the Midwest. In most counties, neither coal nor prime farmland is homogeneously distributed. For this reason the county- level data may be inaccurate, because although a county may contain a substantial acreage of prime farmland, mining operations in that county may be entirely on Table 1. Land Area and Projected Surface Coal Mining Activity in the Corn Selt Projected Surface Mining Land Area (10* acres) (10* tons/year) State/Area Total Prime Farmland 1980 1990 2000 Illinois 38.7 20.6 24.8 30.6 38.2 Indiana 23.1 14.0 23.4 29.9 37.3 lowa 35.8 18.6 20 years) context, surface mining for coal may be viewed as a temporary land use—a feature that distinguishes it from urban and water use which are considered irrever- sible. To complete the analysis of land affected by surface mining, it would be necessary to consider the remainder of the surface mining industry such as sand and gravel, limestone, and metallic and nonmetallic mineral mining operations. The acreage of prime farmland affected by underground mining (both directly through surface dis- ruption and indirectly through subsidence) should also be investigated. Finally, studies into the feedback loop between coal mining and the expansion of railroad lines, electrical switching stations, towns, and highways should begin to add further to our ability to quantify in- direct land disturbances associated with surface coal mining. Summary In the 20-year period 1980-2000, 433,000 acres of land in the Corn Belt are forecast to be affected by surface mining for coal. Of this land area, 122,000 acres are ex- pected to be prime farmland, which is equivalent to 0.2% of the total regional prime farmland area. During this same period, over 3 million acres of prime farmland could be affected by urban expansion, road building, —120— and water projects if current trends continue. Overall, the acreage of prime farmland affected by mining is significant, especially at the local level. Considering the small amount of prime farmland which has successfully been returned to crop production, the resulting chal- lenge to reclamation specialists is large. [References omitted. ] —121— EXHIBIT B AFFIDAVIT OF DONALD E. McCORMACK Donald E. McCormack, being duly sworn, deposes and states: 1. I am the Director, Soil Survey Interpretations Division, Soil Conservation Service, United States De- partment of Agriculture. My division is responsible for leadership in the use of soil surveys and how the nature of soil affects the use and management of land. 2. I received a doctorate degree in soil science from the Ohio State University in 1973 and I have published approximately twenty-five articles on soil performance and soil behavior. Among my publications are the two articles attached hereto entitled, Soil Reconstruction: Selecting Materials for Placement in Mine Reclamation and Soil Reconstruction: for the best soil after mining. 3. The soil has an A horizon underlaid by a B and/or C horizon. The A horizon is the organically enriched surface layer that has received and accumulated the residues of the native plants or the fertilizers and manures applied by the farmer. In most soils the A horizon varies from 6 to 12 inches thick. The B horizon in most soils is less favorable for plant growth than the A horizon, and usually contains more clay, gravel, cal- cium or sodium than the A horizons. On most soils, neither burying the A horizon under spoil during surface mining operations nor mixing the A and B horizons is compatible with full restoration of productive potentials. Generally, the A horizon of the natural soil should be segregated from the B horizon and graded back over the surface after mining. Accordingly, Section 515(bX7) of the Surface Mining Control and Reclamation Act requires, for prime farmland areas, that the operator: (A) segregate the A horizon of the natural soil, except where it can be shown that other available soil materials will create a final soil having a —122— greater productive capacity; 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; 4. The requirement that mined prime farmland be restored to its pre-mined capability is both practical and feasible from the perspective of a soil scientist. This is so because productivity is a function of soil characteristics, and if the A and B horizons are properly segregated and replaced on the disturbed area, the soil should have essentially the same characteristics as it previously possessed and, therefore, should have the same produc- tive capability. Basically, it is technologically possible to restore prime farmlands to their pre-mining produc- tivity because restoration of these lands entails replace- ment of the A and B horizons or materials of equal or better quality. Through proper handling, soil properties required for restoring productivity to prior levels can be recreated. 5. One of the most efficient means to comply with the Act is simply to take from the area of prime farmland to be disturbed the A and B horizons and place them on the regraded mined prime farmland. This management practice will minimize the handling of the A and B horizons because the need to stockpile the segregated soils in storage areas is eliminated. [Dated: March 20, 1979] DONALD E. MCCORMACK —183— EXHIBIT C AFFIDAVIT OF RAYMOND I. DIDERIKSEN Raymond I. Dideriksen, being duly sworn, deposes and states: 1. I am Director, Inventory and Monitoring Division, Soil Conservation Service, United States Department of Agriculture. 2. The information set forth below is taken from official publications and statistics of the Department of Agriculture. I rely on this data. The data is also used by persons involved with agricultural products. 3. There are 2.36 billion acres of land in the United States and the Caribbean. Of this amount, 346 million acres (14.7 percent) are classified as prime farmland. However, only 231 (56 percent) of the 346 million acres are used as cropland. In Indiana, 13.3 million acres were used as cropland in 1977, and 11.5 million acres (86 percent) of the cropland is considered prime farmland. 4. In Indiana during 1977, the latest year for which statistics are available, the harvested acreage totalled 12.6 million acres for eight major field crops which include corn, wheat and soybeans, the principal row crops grown on prime farmland. 5. The following table sets forth the production and disposition of corn for grain produced in Indiana during the period 1975-1977. Value of Used on Season Production farms where Average Production (Crop year | for grain grown Sold Price for grain Sales Thousand Bushels Dollars Thousand Dollars Corn for Grain ar 551,740 165,522 386 , 218 2.48 1,368,315 957,821 ae 693,000 221, 760 471,240 2.10 1,455,300 989 ,604 633,420 183,692 449,728 2.00 1,266, 840 899 ,456 —124— The 1977 crop production in Indiana for corn was the third highest in the United States. Source: /ndiana: Annual Crop and Livestock Summary (1977), 52. The following table sets the wheat and soybean production for Indiana during 1975-1977: Value of Used on Season Production farms where Average Production 7 Crop year | for grain grown Sold Price for grain Sales per Bu Thousand Bushels Dollars Thousand Dollars Wheat 1975 61,600 3,696 57,904 3.22 198 , 352 186, 4 1976 54,000 3,348 50,652 2.93 158,220 148 , 4) 1977 55 ,800 3,404 52,396 2.20 122,760 115,27 Soybeans 1975 121,605 1,702 119 ,903 4.98 605 ,593 597,11 1976 111,520 1,784 109, 736 6.70 747 ,184 735 , 2. 1977 139,320 1,672 137 ,648 5.50 766 , 260 757 ,0€ The 1977 crop production for soybeans was fourth highest in the United States. Marketing of all crops in 1977 totalled $2.0 billion or 61 percent of the total cash receipts to Indiana farmers during 1977. Cash receipts from corn and soybeans accounted for 53 percent of cash receipts from all crops. Source: Indiana: Annual Crop and Livestock Summary (1977), 53. 7. During the 1976-1978 calendar years, Indiana farmers planted for principal crops an average of 12.5 million acres and harvested an average of 12.4 million acres. (Crop acreage includes corn, sorghum, oats, barley, wheat, rye, soybeans and other agricultural commodities). With respect to total acres planted and harvested, Indiana ranked 10th in the Nation. However, Indiana ranked seventh in the Nation for total prime farmland devoted to the production of crops. —125— 8. Yields for prime farmland are typically higher than for nonprime farmlands. However, if we conserva- tively assume that prime farmland yields are the same as nonprime farmland than the following is an estimate of major commodity production for prime farmlands used for cropland in Indiana in 1978: corn for grain: 637,200,000 bushels of which 547,992,000 were produced on prime farmland; wheat for grain: 31,785,000 bushels of which 27,335,000 were produced on prime farmland; and soybeans: 140,420,000 bushels of which 120,761,000 were produced on prime farmland. Agricultural Exports 9. Agricultural commodities are of increasing im- portance with respect to the Nation’s balance of trade. During fiscal year 1978, a record $27.3 billion in United States farm products were exported. This was equal to 28 percent of the 1977 cash receipts from farm marketings. Over half of the rice, wheat, and soybean crops were exported. Thirty percent of the corn pro- duction was shipped abroad during fiscal year 1978. Generally speaking, about 31 percent of the 1977 U.S. crop production was exported. Agricultural exports are expected to total in excess of $30 billion in fiscal year 1979. During 1977, harvested area totalled 342 million acres and the output from an estimated 107 million of those acres were exported, including 40 million acres in food grains, 26 million in feed grains, and 37 million for other commodities. Cash receipts at the farm level from exports amounted to over $96 billion during 1976. In 1978, agricultural exports resulted in a net gain in the United States balance of payments of $14.2 billion (agricultural exports minus agricultural imports), there- by reducing the United States trade deficit from $46.8 billion to $32.6 billion. The value of these exports to Indiana farmers for the — October 1975 through September 1977 are as ollows: —126— Wheat Total and Feed Flour Grains Soybeans Million dollars 1975 $145.9 $366.4 $239.3 1976 143.2 545.5 239.0 1977 80.6 563.0 368.5 Source: Foreign Agricultural Trade of the United States ‘ (Feb. 1978) (reprint attached hereto). 10. Major commodities exported in 1978 included corn (30 percent), soybeans (56 percent), and wheat (61 percent) of domestic production. Assuming that a similar percentage of these grain commodities are part of the production from Indiana, the following data demon- strates the number of bushels produced in Indiana on prime farmland and exported: corn for grain: 169,398,000 bushels; wheat: 16,674,000 bushels; and soybeans: 67,626,000 bushels. 11. The acres of crops harvested and used for specific purposes during the period 1910-1977, as the attached table demonstrates, has remained relatively stable as has the cropland used for crops. Source: Changes in Farm Production and Efficiency (1977), 18-19. During 1978, one farmer supported 59 persons for agricultural products, 43.5 of which resided in the United States and 15.5 of whom lived abroad. 12. In addition to the importance of Indiana’s agri- cultural production to the Nation and the Indiana farmer, numerous industries in Indiana depend upon the farmer for a livelihood. For example, Indiana farmers spent $371.3 million for feed, $100.3 million for seed, $313.4 million for fertilizer and lime, $387.7 million for maintenance of capital items and $131.8 million for hired labor during 1975. Source: State Farm Income Statistics (Sept. 1978), 42. [Dated: April 16, 1979] /s/ RAYMOND I. DIDERIKSEN —127— EXHIBIT F AFFIDAVIT OF EDGAR A. IMHOFF Edgar A. Imhoff, being duly sworn, deposes and says as follows: (1) I am the Regional Director, Region III, Office of Surface Mining, Indianapolis, Indiana. In this capacity I have primary responsibility for enforcement of the Surface Mining Control and Reclamation Act of 1977 in a six state region which includes the states of Indiana, Illinois, Ohio, Minnesota, Michigan and Wisconsin. My responsibilities include the monitoring of State activities related to the Act. (2) My monitoring of such activities in the State of Indiana indicates that no application for a surface mining permit has been rejected by the state regulatory authority because the applicant could not comply with prime farmland requirements of the Act. (3) Further, the state regulatory authority has made required determinations concerning prime farmland under the Act based upon submissions of the surface mining industry. (4) This information indicates that industry can, and, in fact, has demonstrated the technological capability to restore prime farmland as required by the Act and that the State can, and in fact, has made determinations, as to the adequacy of such demonstrations. (5) A review of data published by the Indiana Employment Security Division suggest a consistent rise in average employment in the Indiana mining industry from 1971 through 1978.* * The employment data includes employees in all mining industries in Indiana, not only surface coal mining. However, od ges for surface coal mining in Indiana is at an all time igh; therefore it is reasonable to assume that employment in the coal industry increased. —198— (6) Indiana has total estimated coal reserves of 30,237,865,000 tons. It is estimated that 17,457,984,000 tons of the total estimated reserves are recoverable by present technology. (7) Of the total recoverable reserves, 2,237,299,000 tons are recoverable by surface mining and 15,220,685,000 tons of Indiana coal are recoverable by deep mining. Consequently, only 14% of Indiana’s total recoverable resources can be surface mined. [Dated: April 16, 1979] /s/ EpGAR A. IMHOFF —129— EXHIBIT G AFFIDAVIT OF ELVIN V. WICKLINE Elvin V. Wickline, being duly sworn, deposes and states: (1) I am the Assistant State Conservationist for Operations, Soil Conservation Service, United States Department of Agriculture for the State of Indiana. Field offices under my supervision are responsible for reviewing soil restoration plans submitted by coal operators in their permit applications to the state regulatory authorities. In particular, those offices as- sesses whether or not the plan of restoration is in compliance with the prime farmland provisions of the Surface Mining Control and Reclamation Act of 1977, Section 716.7(f(2) and the interim regulations, 42 Fed. Reg. 62694. (2) My office has reviewed 66 submissions from the Indiana state regulatory authority, including six sub- missions from AMAX Coal Company. These submissions demonstrate that the coal operators have the capability to achieve the prime farmland provisions of the Act and regulations. In most cases, the restoration plans indicate that the coal operator intends to segregate the A horizon, B horizons and C horizons, and store the topsoil separately. In some cases it has been demonstrated that mixing the B and C horizons accomplishes a better end result than separating them. (3) In the State of Indiana the A horizon is between 7 and 14 inches deep. The B horizon is beneath the A horizon and may reach a depth of 40 inches. [Dated: April 17, 1979] ELVIN V. WICKLINE 189 EXHIBIT H AFFIDAVIT OF ALLEN O. PERRY Allen O. Perry, being duly sworn, deposes and says as follows: (1) I am the Assistant Regional Director for Tech- nical Services and Research, Office of Surface Min- ing, Department of the Interior, Indianapolis, Indiana. (2) I have a B.S. degree in Geology from Indiana Un- iversity and an M.S. and Ph.D. in Engineering Geology from Purdue University. I am a member of the Society Mining Engineers of the American Institute of Minin Metallurgical, and Petroleum Engineers, the Geological Society of America, and the Association of Professional Geological Scientists. I am registered as a professional geologist in the State of Delaware. In addition, I am the author of several technical publications regarding sur- face mining. (3) Prior to my present position, I was an En- vironmental Systems Engineer at the Argonne National Laboratory, Argonne, Illinois. Argonne National Laboratory is one of seven national laboratories es- tablished for objective scientific research in the en- vironmental, biomedical and physical sciences. The Un- iversity of Chicago operates the 1700 acre research facility which has 4,400 employees, 1500 of which are professional scientists and engineers. As a research scientist at Argonne, I supervised and conducted research projects to determine the environmental effects of mining and mineral processing. This research neces- sitated my becoming familiar with the current state of knowledge concerning the adverse effects of surface mining, including studies concerning the effects of sur- face mining in Indiana. (4) Surface mining practices have led to substantial degradation of the environment in Indiana, especially in the area of water quality where such practices have rendered the water supplies in some of the major water- —131— sheds essentially unsuitable for aquatic life, wildlife, drinking water and even for irrigation purposes. The adverse environmental effects of surface mining, partic- ularly water quality, have been documented in a report done pursuant to Section 208 of the Federal Water Pollution Control Act of 1972, amended. (5) The degree of degradation is evident from the substantial amount of abandoned mine lands in the state. A study conducted by the Soil Conservation Ser- vice, United States Department of Agriculture in 1978, identified in Indiana, some 25,900 acres of abandoned coal mine lands. These lands continue substantial degradation to the quality of the environment, prevent or damage the beneficial use of the land and water resources, and in some cases endanger the health and safety of the public. They are lands for which no coal operator is responsible. (6) Further, many scientific studies, including some conducted by Indiana state agencies, demonstrate that surface mining has had a deleterious effect on the land and water of the State of Indiana. For example, water quality monitoring data by the Indiana State Board of Health in 1976 showed a substantial increase in the sul- fate, iron, and manganese contents of the water when streams were sampled below surface mining operations as compared to samples from above. Increases in the amounts of these substances found by this state agency render the water sampled unsuitable for aquatic life, recreation, both domestic and wildlife, drinking water supplies and irrigation. (7) A study done by the Water Resources Research Center at Indiana University, Bloomington, which con- sidered the effects of strip mining on the Patoka River Watershed, a major watershed in the coal producing region of Indiana, found that, as a result of surface min- ing, the water was rendered unsuitable for domestic water supplies because of water quality. (8) Another study done by the Research Center of another major watershed in the strip mining area, the —132— Busseron Creek Watershed in Sullivan County, found that the unmined portions of the watershed provide good quality water while acid water emanates from mined areas. (9) The effects of strip mining on water resources is well stated in still another study by the Water Resources Research Center: “In the production of coal in Southwest Indiana the intermingling of water and coal has created many problems with respect to the occurrence of water, me = and use. Most of these problems remain un- solved.” (10) Further, where, as in Indiana, there is no re- quirement for special handling and redistribution of top- soil, there can be severe impacts on reclamation. Lack of topsoiling inhibits revegetation which affects erosion, sedimentation and water quality and quantity. (11) A list of the studies referred to herein attached. [Dated: April 17, 1979] /s/ ALLEN O. PERRY —1ib-. Transcript Of Hearing Held On April 18, 1979: TESTIMONY OF DR. WILLIAM W. McFEE (Tr. 50] 3 Q. Are you employed by Purdue University? A. Yes, I am employed at Purdue University in the Agronomy Department. 4 Q. What is your position there? A. Professor of Agronomy and Director of the Natural Resources and Environmental Science Pro- gram in the School of Agriculture. 5 Q. How long have you held that position? (Tr. 51) A. I have been assistant associate and full profes- sor combined since 1965, and Director of the NERS Program since 1973, I believe. 6 Q. Would you please briefly describe your educa- tional background? A. My educational background involves a degree in agronomy from the University of Tennessee, and that’s a Bachelor of Science Degree, and a Master’s and PhD in soil science from Cornell University. 7 Q. When did you attain your PhD Degree? | A. Ilattained my PhD, finished the work in ’65 and the degree was awarded in January, ’66. 8 Q. Could you also please describe your employ- ment history from the college level? A. Starting from the Bachelor of Science work, after completing that I worked for the experimental station, University of Tennessee, for a period of ap- proximately six months in tree nutrition research, and then I was employed by the U.S. Army for three years, and then while in graduate school I was on an as- sistantship part of the time and a fellowship part of the time, both of which involved work in soil science having to do with soil fertility, tree nutrition, and, 4 See note 2 supra. 13 16 17 —134— perhaps, germane to this, I [Tr. 52] was involved ina peripheral way in some coal reclamation research. It was not the thrust of my particular thesis, but some of the other students which I helped were working on it. Q. Have you had any other connection with re- search in coal mine reclamation? A. Yes, I have. I’m writing a final report for a research project, which was funded through the Co- operative States Research Service. And we have an- other project currently going, both having to do with the ways in which overburdened materials behave and their suitability for inclusion in a reclaimed soil. * 7 2 (Tr. 53) Q. Have you made any investigation regarding the restoration of surface mines as a condition for row crop production under that new act? A. As I understand the Act, it states that in order to be given a permit for mining prime farmlands, you must demonstrate that you can return it to its former productivity. And, yes, I have done a literature re- view looking for evidence that this has been demon- strated. 7 ot ae Q. Now, I believe you indicated that you made a search of the literature? A. Yes, I have made a search of the literature look- ing (Tr. 54] to see if this has been demonstrated in the process of preparing research proposals. Q. Could you describe, please, how you conducted that search and what items you have reviewed? A. I began by looking at literature that I had in my own possession, which amounted [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0252%3A02. Public record. Not legal advice.