Motion to Affirm — Hodel v. Indiana

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Supreme Court of the Anited

In THE

wepieiiy vuuis, Ve we

No. 80-231 FILED

sep 16 1980

Ocroser Term, 1980

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR, et al,,

Appellants,

STATE OF INDIANA, et al,

Appellees.

On Appeal From The United States District Court

For The Southern District Of Indiana

MOTION TO AFFIRM

THEODORE L. SENDAK

Attorney General, State of Indiana

JACK R. O'NEILL

Deputy Attorney General, State of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6357

For State of Indiana, Otis R. Bowen, M.D.,

Governor, Indiana Department of Na-

tural Resources, and Joseph D. Cloud,

Director.

HARRY T. ICE

G. DANIEL KELLEY, JR.

BYRON L. MYERS

111 Monument Circle, 10th Floor

Indianapolis, Indiana 46204

(317) 635-1213

For Indiana Coal Association, Meadowlark

Farms, Inc., AMAX Coal Company, a

Division of AMAX Inc., Peabody Coal

Company, and John A. Conlon.

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

: MUIHNEL ROD SK. JR.. CLORE

TABLE OF CONTENTS

PAGE

MOTION TO AFFIRM .. 1

REASONS FOR AFFIRMANCE

Introduction

Operation Of The Act On The States ........ 2

Land Use Planning And Control Provi-

sions 3

1. Ruling On Tenth Amendment Issues Was Cor-

rect 10

Land Use Planning And Control—An At-

tribute Of State Sovereignty 11

Encouragement Versus Coercion. ................ 17

State Versus Federal Interests .................... 19

2. Ruling On The Commerce Clause Issue Was

I iinicccnntiasebaiane : ook

3. Substantive Due Process Issue Correctly De-

cided .... —

4. Taking Issue Correctly Decided .0.0..0....2.-....--- 27

5. Procedural Due Process Issue Decided Cor-

DOOEET -<cdasetinsnssitiesidsabaataniedabidacdacen domestica 27

CONCLUSION ae

APPENDIX—Statutory Provisions Involved ................ la

TABLE OF AUTHORITIES

Cases

isi cdlpcnnindcdciatiiedansadiatsinevasesacsionaarimienlbhasioushoeamwatiniiy 14, 16

Ashwander v. Tennessee Valley Authority, 297 U.S. 288

a cia canictnbacaqneetenitnnoneinbneneeonia 21

Boddie v. Connecticut, 401 U.S. 371 (1971) .........-...2.----+- 28

California v. United States, 438 U.S. 645 (1978) ........ 11, 15

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942) 21

Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th

Cir. 1979), cert. granted sub nom. EPA v. National

Crushed Stone Association, ...... US. ....... 62 L.Ed.

ce Sind ak wis aateschesincescenemptaticinaloontatis 10

Construction Industry Association of Sonoma County

v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975),

cert. denied, 424 U.S. 934 (1976) ...............s-ccecseessecsecseee 14

Fuentes v. Shevin, 407 U.S. 67 (1972) .............-:2:-eceeceeeeee 28

Goffinet v. Christian County, 65 Tll.2d 40, 357 N.E.2d

SIE ash wash incpairnncubsibiialnnieneinnnsateninicanciiicnesestimensitetes 14

Hamilton v. Kentucky Distilleries € Warehouse Co.,

I I I asses cideseshnirenddesnsnniainnaseanbendannonbe 14

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ............ 26

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

I i ac aanebdiihcehahedenisontienaiensnlgenehiioninibieeesiorenie 20, 21

In Re Permanent Surface Mining Regulation Litiga-

tion, No. 79-1144 (D.D.C., May 16, 1980) ..............-.-.-- 4

Kansas v. Colorado, 206 U.S. 46 (1907) .............--.--s20----0+0 15

Katzenbach v. McClung, 379 U.S. 294 (1964) .............- 20, 21

Lafayette v. Louisiana Power & Light Co., 435 U.S.

389 (1978) 11

lil

Maryland v. Wirtz, 392 U.S. 183 (1968) ..............-. 12, 21,

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ..

National League of Cities v. Usery, 426 U.S. 833 (1976)

PCs LAS NER RW ROOE DE OIE DF ON NP 10, 11, 13, 17, 19,

Penn Central Transportation Co. v. New York City, 488

We INE RIP seakestakcas resctseiennnlnctnlesalniiviecianetdinescapeiicniniinies 14,

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

Perez v. United States, 402 U.S. 146 (1971) ..............-....-

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S.

Be E acesseciessciniedstndanndeboichatsbenbtecin shasnseeicnchlanaenbybiccndisaaabeds

Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41 (5th

Ce RID isis dcicinascacaiselniocnctneguacniechensieinbtabonedatnnsisnceenntiinsiees

Steward Machine Co. v. Davis, 301 U.S. 548 (1936) .... 17,

United States v. Darby, 312 U.S. 100 (1941) ................ 14,

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

PRD iinkcsiedeneistcinsniesndpnacnabibvanhicesiiltgngptonnianpiiengetioanteniebaontas 14,

Warth v. Seldin, 422 U.S. 490 (1975) .2.........eececeeeeeeeeeees

Wickard v. Filburn, 317 U.S. 111 (1942) ...000....-.eeeeeeeeeee

Zuber v. Allen, 396 U.S. 168 (1969) ...............:ccccc-csseseeeeees

Constitution, Statutes and Regulations

United States Constitution: [JS App., at 55a]:

Art. I, Section 8 (Commerce Clause) ...........--------+--+-

SS NASPALL © RAED Be SEN SORT = SEIS PRIN “ERS DOR 2, 12, 14, 16, 20, 24,

Art. I, Section 8 (Necessary and Proper Clause) ..

SEN Sid EE BRC IE ea ee DCT Ren a Tee PF 20,

TPs DANO RE oasis cccscrcevnsecesesesosessmsinicn 2, 16, 25, 27,

Tomtih: A A IOING anise hasisccnedernscinansoniisatbaaay 2, 10, 14,

Indiana Code § 13-4.1-1-1 (Supp. 1980) [JS App., at

TS a csncstsnscconcaccniainaephiuieiadonaricnhdccatlapdeesabeirnisesiostipaniin

Surface Mining Control and Reclamation Act of 1977,

Pub. L. No. 95-87, 30 U.S.C. § 1201 et seq.:

‘*Prime farmland provisions’ [JS App., at 9a]

§ 507(b) (16) [30 U.S.C. § 1257(b)(16)], § 701

(20) [380 U.S.C. § 1291(20)], § 508(a)(2)(C)

[30 U.S.C. § 1258(a)(2)(C)], § 510(d)(1) [30

U.S.C. § 1260(d)(1)], § 515(b)(7) [80 U.S.C.

§ 1265(b)(7)], § 515(b)(20) [80 U.S.C. § 1265

(b)(20)], § 519(¢) [30 U.S.C. § 1269(¢)] ............

scadl llaisieaghceiictapiid 3, 6, 7, 9,17, 20, 21, 25, 26, 27

Section 101(b), 30 U.S.C. § 1201(b) [App., at la] ..

Section 102(c), 30 U.S.C. § 1202(c) [App., at la] ..

Section 102(k), 30 U.S.C. § 1202(k) [App., at 2a] ..

Section 503(a)(1), (7), 30 U.S.C. § 1253(a)(1), (7)

SAN ns IU: A cen becieag sii Susana cchasitetecid ea os 2, 17

Section 504(a), 30 U.S.C. § 1254(a) [App., at

MOT cesiasdiapadiesiiladin Rusty sitlasinnssicridsdriidi det oe tel F 3

Sections 506-508, 30 U.S.C. §§ 1256-1258 0.000000...

Section 508(a)(2), (3), (4), 30 U.S.C. § 1258(a)

CRs Cabs CP CO Bg BE RD eicececnitdedanctcciacictnonces

Section 510(b) (4), 30 U.S.C. § 1260(b) (4) [App.,

A EAU PMDSEE er RPA Sete Kade Cede ANT Pee AMON Peta

Section 510(d)(1), 30 U.S.C. § 1260(d) (1) [JS

PRUs SE IEE. sicesancocinasnshsichashacisebighh ptitedtecnemmia hadi, 4, 27

Section 515(b)(2), 30 U.S.C. § 1265(b)(2) [App.,

SUP MIEN i sildicthnstehitchcnenielarticilectioncssasiascadiniliniagsteiadisicie conde. 4, 6,7

Section 515(b)(3), 30 U.S.C. § 1265(b)(3) [JS

PRIS EE ED siuhictvdscnapsarbnaniadececbedaaibaec 4, 5, 9, 25, 26

Section 515(b) (4), (8), (10), (11), (14), (16), (19),

30 U.S.C. § 1265(b) (4), (8), (10), (11), (14), (16),

CAP Cs Ge THRE ectesin oenestsccensicaia sha leeadecacnias

Section 515(b)(5), 30 U.S.C. § 1265(b)(5) [JS

Bg Te OE elsiiihiicinchiinidetindnina he 4,5, 7,9

Section 515(b) (8), 30 U.S.C. § 1265(b)(8) [App.,

Eh cere er MORMON OE AIR MEIC Lk CYNE

Section 515(b) (10), 30 U.S.C. § 1265(b) (10) [App.,

RS SIA ensuing oeincsiginiiniesagisacdencnees le eal hee

Section 515(b)(19), 30 U.S.C. § 1265(b)(19) [JS

SE IIE | ficdiincndesiininsoniseinidincciniasinassigiempmennpeiicianennanen

Section 515(b) (20), 30 U.S.C. § 1265(b) (20) [JS

App., at 62a]

Section 515(c)(3)(A), 30 U.S.C. § 1265(¢) (3) (A)

IR I TINIE Lada ishitleieatinssniiatilahinnaplosarcrinmneseniine 5, 6

Section 515(e)(3)(A), 30 US. C. § 1265(e) (3) (A)

[App., at 13a] .. 5,6

Section 518(a), 30 U.S.C. § 1268(a) [App., at 16a] 28

Section 518(c), 30 U.S.C. § 1268(c) [JS App., at

IIT iit sti ictich cians Ulapspahllatbtehabbacesilcciehiddepaiientennedneniponiie 27, 28

Section 519(c)(2), 30 U.S.C. § 1269(c)(2) [JS

Fe Te AE. wiciecciesticig ereeaninideseieceeniipenstniaitininanmiesnionnase 4, 27

Section 522, 30 U.S.C. § 1272 [JS App., at 65a] ..

RIAN PEE SESE OO CIDE AN NRO CRT ae 7, 8, 17, 27

Section 701(20), 30 U.S.C. § 1291(20) [JS App.,

i a ar tatenaeliaaiettbnsic

Section 701(28), 30 U.S.C. § 1291(28) [App. at

| See

Clean Water Act, as amended, 33 U.S.C. § 1251 et seg... 10

RR EE de Oe no 9

Dini eeeshLtecaseemeiitpieammmesnocatationsiony 4

SC, A a scanstneiintenamietinitstatpsepeion )

I 2 astnlninnieneettal 4

Miscellameous

123 Cone. Rec. $8,101 (1977) TALE RR-on a Pee 6

ee ES ey 9 23

Be Cs May ME IIIT GD saciccctienenccecicsenntcencengetnnensicoinsin 7

Be i: I SR SD i ticecicennictereneniencnccninenitincetioosmnnes 23

123 Cona. Rec. $8,170 (1977) a ¥

123 Cone. Reo. $8,182 (1977) 6

Briefing Presentation By The Soil Conservation Serv-

ice Before The Committee On Interior And Insular

Affairs, U.S. House of Representatives, April 5, 1977

Ee ng SN MMO E wiiibcininsciniltcsccpicciigeriedelgsiaiblnleinrinnmesiiian 22

H.R. Rep. No. 95-218, 95th Cong., Ist Sess. (1977) ........ 23

Report Of The Interagency Task Force On The Issue

Of A Moratorium Or A Ban On Mining In Prime

Agricultural Lands (1977) .........2..-ccccscsccsscecsssesceseesee 22, 23

Restoring Soil Productivity On Surface-Mimed Land,

Johnson, McCormick and Samson (1977) .................... 22

Articles

Diamond, Commentaries on The Federalist, 86 YaLx

aad Oe MED solctesinianiacinsosnehiee sheindeataiplgediuhrabaebempeenie 11

Friend!y, Federalism: A Foreword, 86 Yare L.J. 1019

ERC IEEE SYRIA CTE Ol cn Oe OO A 12

Stewart, Pyramids of Sacrifice? Problems of Federal-

ism in Mandating State Implementation of National

Environmental Policy, 86 Yaue L.J. 1196 (1977) ........ 13

L. Tripe, AMERICAN ConstTITUTIONAL Law (1978) .......... 13

In THE

Supreme Court of the United States

Ocroser TERM, 1980

CECIL D. ANDRUS, SECRETARY OF THE INTERIOR, et al.,

Appellants,

Vv.

STATE OF INDIANA, et al.,

Appellees.

On Appeal From The Un‘ied States District Court

For The Southern District Of Indiana

MOTION TO AFFIRM

Appellees, pursuant to Rule 16, move the Court to af-

firm the judgment of the United States District Court

for the Southern District of Indiana.

REASONS FOR AFFIRMANCE

Introduction

Any analysis of the constitutional questions presented

must begin with an in-depth understanding of the com-

plicated provisions of Title V, § 501 et seq., of the Sur-

face Mining Control and Reclamation Act of 1977 [30

a we

U.S.C. § 1251 et seq. (Supp. 1979)], which subtly, but

quite directly, operate upon the States by dictating land

use policies as well as governmental structures, proce-

dures and criteria for making decisions on land use

policies, all on pain of Federal usurpation. The Secre-

tary continues before this Court, as the Secretary did

before the District Court [relying mainly on the title of

the Act and ignoring the challenged provisions] to mis-

characterize the challenged provisions of Title V as, (1)

being related solely to pollution control, with only inci-

dental land use control and planning requirements, and

(2) not being directed at the States, but solely at private

mining operations.

Before addressing the questions presented, appellees

will first demonstrate that provisions of the Act, which

the District Court found to be contrary to the Tenth and

Fifth Amendments as well as beyond the Commerce

Clause power, operate on the States, and then

demonstrate that the prime farmland and other pro-

visions of the Act are related solely to land use control

and planning, as opposed to interstate spill-over effects

of water and air pollution.

Operation Of The Act On The States

Under the permanent phase of the regulatory scheme

established by the Act, in order to retain jurisdiction

over the regulation of surface coal mining and reclama-

tion operations as well as the land use planning and

control functions encompassed by the Act, each State

must submit a State Program, including “a State law

. in accordance with the requirements of this Act”

and “regulations consistent with regulations issued by the

Secretary pursuant to this Act,” § 503(a)(1) and (7), or

else those functions will be usurped by a Federal

Program administered by the Federal Government,

unibint

§ 504(a). That is, unless a State submits a State

Program by passing laws and promulgating regulations

conforming to both the Act and the Secretary’s regula-

tions, the Federal Government will promulgate and

administer a Federal Program for the State. Thus, on

threat of Federal usurpation, in order to retain their

sovereign land use planning and control functions, the

States have no choice! but to exercise their legislative

and executive powers by enacting laws and promulga-

ting regulations containing land use policies as well as

providing governmental structures, procedures and

criteria for further land use decisions that are a mirror-

image of those dictated by the Act.

Land Use Planning And Control Provisions

As found by the District Court, the “prime farmland

provisions”? of the Act are totally unrelated to water

pollution control’ and are singularly and solely land use

control and planning devices. These provisions require

that: (1) prime farmland be defined as set forth in

regulations of the Secretary of Agriculture, § 701(20),

without regard to what is actually prime farmland

within a State based on State determined land use

policies; (2) mined prime farmland be returned to farm-

ing use after mining as a condition to allowing surface

1 As the Secretary notes, Jurisdictional Statement at 3

[hereinafter cited as “JS”], Indiana has submitted a State Pro-

gram; however, as found by the General Assembly, the State

of Indiana was “coerced” into enacting enabling legislation so

that an Indiana Prostam would comport to the Surface Mining

Act only to avoid the “Federal encroachment.” IND. CODE § 13-

— 2) and (4) (Supp. 1980); Conclusion No. 1, JS App., at

2 The “prime farmland provisions” are set forth at JS App.,

at 8a-10a, and are hereafter referred to collectively as such.

8 The prime farmland provisions actually increase water

pollution. Finding No. 8, JS App., at 16a.

hints jenni

mining on prime farmland, and (3) the postmining land

use be farming for up to ten years.‘ These land use con-

trol policies will be effectuated in Indiana through a

State Program meeting Federal requirements, or direct-

ly usurped through a Federal Program formulated and

administered by the Federal Government.

Further land use policy concepts contained in the

“approximate original contour,” § 515(b)(3), “topsoiling,”

§ 515(b)(5),5 and prime farmland provisions are demon-

‘ This gt re, use is required by the express language of

the prime farmland provisions. See In Re Permanent Surface

Ned Regulation Litigation, No. 79-1144, slip op. at 5,

(D.D.C., May 16, 1980):

Illinois attacks the Secretary’s regulation that requires

an operator to designate cropland as the post-mining land

use for prime farmland. 30 C,F.R. § 785.17(d)(1). . .. Il-

linois believes that Section 515(b)(2) of the Act. . . affords

the operator an open ended choice as to the post-mining

land use.

Illinois mistakenly reads Section 515(b\(2) in

isolation.... But the Act prescribes additional and

specific requirements for prime farmland. J pape.

the SMCRA prohibits release of bond “until soil produc

tivity for prime farmlands has returned to equivalent

levels of yield as nonmined land of the same soil type in

the surrounding area ...” Section 519(c\(2) o the

Act. . . . This equivalency standard could not be achieved

— - post-mining employment of prime farmland as

cropland.

Section 510(d\1) . . . corroborates the imposition of an

additional requirement for mining on prime farmland: the

land must be reclaimed and used as crop land.

The required farming use results, in part, because it will take

up to ten years of continuous farming to make the

demonstrations required for the release of the bond pursuant

to 4 SKC) The Secretary admitted this fact in his comments

to the proposed regulations, 30 C.F.R. § 823.15. See comments

set forth in Conclusion No. 5, JS App., at 30a.

6 Section 515(b)(3) [hereinafter “original contour provision”)

requires that mined land be returned to its approximate

original contour after mining. Section 515(b)(5) [hereinafter

“topsoiling provision”] provides that the topsoil of mined land

must be removed, stored and replaced in a separate layer.

———EEIE

strated by the absence of variances from these require-

ments as applicable to Indiana. For example, where

mining occurs on “mountaintops” or “steep slopes” which

are not present in Indiana, the Act provides for

variances from the original contour requirement if other

than the original contour is compatible with a proposed

postmining land use which is deemed by the regulatory

authority to be an “equal or better economic or public

use of the affected land, as compared with premining

use,” §§ 515(cX3XA), (eX3A). The Act allows no mean-

ingful variances from the original contour, topsoiling,

and prime farmland provisions for lands in the Midwest,

even where these requirements are unnecessary to the

attainment of a particular postmining land use, as

residential, industrial or recreational uses. In other

words, variances are allowed only where the Federal

Government has predetermined that there can be an

“equal or better economic or public use” of the local

land. Variances are not allowed in the Midwest because

the Federal Government has predetermined that there is

no higher and better use of the land following mining,

and in the case of prime farmland, that the highest and

best use is farming.

That the absence of variances from the original

contour, topsoiling and prime farmland provisions as

applicable to Indiana is based on land use _ policy

decisions, not pollution control, is demonstrated in the

history of the Act. It was expressly noted that surface

mining presents an opportune time for land use

planning by reshaping the land,* but that variances

from the prescribed standards were only permitted

where the Federal Government predetermined that

higher postmining land uses would result.

6 See Conclusion No. 18, JS App., at 34a.

er es

A uniform variance based on land uses was provided

from the original contour requirements for all lands, not

just steep slopes or mountaintops, at the time the Act

was originally passed by the Senate. See § 415(d), 123

CONG. REC. $8,182; 123 Conc. REc. $8,170, (May 20,

1977). Such variances were deemed required based on

land use planning considerations:

[T]he technology of reclamation has come a long

way. If the law is framed wisely and reasonably—

without rigid contour requirements—there is no

reason why further beneficial land uses cannot be

carried out on reclaimed land... .

It must be borne in mind that protection of

environmental values does not in every instance

require return to an original contour. 123 CONG.

REc. $8,101 (daily ed. May 20, 1977) (remarks of

Sen. Byrd).

However, in the Committee of Conference, without any

rational basis, the uniform land use variance from the

“rigid” contour provisions, based on land uses, was

restricted to only steep slopes and mountaintops, §§ 515(c)

(3X A), (eX3XA), which are not found in the Midwest.

Again, the predetermined Federal land use policy is

that in the Midwest, land uses which could result from

such variances are deemed not to be equal or better land

uses.

These predetermined Federal land use policies effectu-

ated through the absence of variance provisions are most

blatant in the case of the prime farmland provisions.

Several Senators remarked at the time of their introduc-

tion that the mere requirement that land be restored to

equal or higher and better use [§ 515(b)(2)] was not con-

sidered sufficient for prime farmland, and that in addi-

tion a postmining farming use was required:

_ a

[T ]hat caveat of a higher or better use [in § 515(b)(2)]

is the hooker. This is the loophole you can drive a

truck through. I shall tell you why.

The effect of this amendment [prime farmland

provisions] is to set a standard for reclamation of

prime farm lands. Without this amendment,

someone in the short term can determine that a

better use is a recreational use; a better use is a

residential use; a higher use is an industrial use.

We are giving all that discretionary authority to

some bureaucrat.

I do not want to do that. 123 Conc. REc. $8,111

(daily ed. May 20, 1977) (statements of Sen.

Culver).

Hence, the absence of variances from the original con-

tour, topsoiling and prime farmland provisions as

applicable to the Midwest, particularly Indiana, shows

that the Federal Government predetermined that there

can be no higher and better land use, regardless of what

may be the local land use planning and control policies

or needs. The Federal land use control and planning

policies will be effectuated in Indiana, again, either by a

State Program that conforms tc ederal dictates, or by

the Federal Government pursuant to a Federal Program

for Indiana.

Another blatant example of Federal land use control

is found in § 522 of the Act, which dictates that the

States adopt specific governmental structures, procedures

and criteria for making land use planning and control

decisions, on pain of Federal usurpation, in which case

the Federal Government will make those policy

decisions. This section requires that a specific procedure

be established to designate land unsuitable for surface

coal mining and delineates the relevant criteria which

are totally unrelated to air and water quality, as

whether mining is incompatible with “local land use

eels

plans or programs” or affects “fragile or historic lands”

where significant damage could result to “important

historic, cultural, scientific, and esthetic values... .”

See § 522(aX(3). A permit will not be issued to mine on

land that has been designated unsuitable for surface

mining, §510(b)(4). Again, this land use _ policy

procedure and governmental structure will have to be

adopted by a State in its program, or it will be usurped

in a Federal Program with the decisions actually being

made by the Federal Government. In _ addition,

§ 522(e)(4) and (5) create buffer zones prohibiting “sur-

face coal mining operations,” see § 701(28), which would

encompass such activities as parking vehicles used in

the mining operation. As to road relocation and closings,

Indiana is mandated to change its governmental struc-

tures by which such decisions are presently made by

County Commissioners and the Indiana State Highway

Commission,’ or to relinquish its right to make these

decisions to the Federal Government.

The District Court also found unconstitutional, JS

App., at 10a, 1la, 19a, those provisions of the Act which

combine to require specific State governmental struc-

tures and standards for approving proposed postmining

land uses, irrespective of existing state governmental

structures and standards. Through the permitting

procedures and reclamation plan requirements of the

Act, §§ 506-508, a mine operator must obtain approval to

change the postmining use of the land from that which

existed before mining, §§ 508 a)(3), (4), 515(b)(19), (20)

and 510(b)(1), (2). These provisions resulted in regu-

lations requiring the approval of changes of post-

mining land use, defining precisely what is deemed to

be a change in land use, and establishing ten land

7 See Conclusion No. 14, JS App., at 34a.

use categories, ranging from “cropland” to “undeveloped

land,” 30 C.F.R. § 701.5, which read like zoning or-

dinances. The premining land uses must be determined

in accordance with whether the land was properly

managed and, further, if the premining use of the land

was changed within five (5) years, then the postmining

land uses must be compared with the historic use of

the land. 30 C.F.R. § 816.133(b). Not only are specific

governmental structures and procedures mandated, but

specific criteria are established and required by which

the approval of the proposed change in postmining land

use will be determined. Again, the provisions directly

require that the State adopt federally dictated govern-

mental structures and procedures, as well as direct land

use planning and control criteria and policies, or those

functions will be usurped and performed by the Federal

Government pursuant to a Federal Program.

Finally, the prime farmland, topsoiling and original

contour provisions, which have no meaningful variances

applicable to Indiana, are a part of the federally dic-

tated land use policy of making surface mining an un-

preferred land use to underground coal mining and farm-

ing, regardless of a State’s land use policies and

needs.?®

As the District Court found,’ all the above provisions

are unrelated to the control of air or water pollution,

which further supports the conclusion that the land use

control and planning dictates of these provisions are not

merely “incidental,” as the Secretary contends. This con-

clusion is compelled when it is considered that the Act,

8 This policy is expressly set forth in § 101(b) and § 102(c

a’ d (k), as well as other provisions. See td fe No. 17, KZ

App., at 35a.

% Findings No. 7, 8, 9, Conclusion No. 2, JS App., at 16a-18a.

ais Snip

in ten separate provisions,’® contains requirements clear-

ly directed at water pollution control.

1. Ruling On Tenth Amendment Issues Was Correct

The Secretary contends, without focusing on the

specific provisions of the Act found unconstitutional by

the District Court, that its analysis was erroneous under

the Tenth Amendment and National League of Cities v.

Usery, 426 U.S. 833 (1976), because any land use conse-

quences of the provisions are merely incidental, the

regulation of surface coal mining is not an integral

governmental function protected by the Tenth Amend-

ment, and the States are not compelled, but only en-

couraged, to enforce the Act.

The. District Court correctly perceived that the

specific provisions of the Act addressed were not merely

incidentally concerned with land use control and plan-

ning, but rather had as their single and sole purpose

Federal land use control and planning. [See pp. 3-10

supra.] The District Court did not hold that the regu-

10 Those provisions are sy 515(b)(4), (8), (10), (11), (14), (16)

and (19). On the basis of these provisions, the regulations

promulgated by the Secretary require the use of sediment

and treatment ponds to control the four identified water Rol

lutants—iron, manganese, suspended solids and acidity (pH)

which are not controlled by any of the provisions cha lenged

by the appellees, and that surface drainage from non-point

sources be controlled. All of the foregoing requirements are in

addition to or maybe even duplicative of the control of point

sources under the national pollutant discharge elimination

standards of the Clean Water Act, as amended, 33 U.S.C,

§ 1251 et seq. and particularly § 1362(14). Finding No. 7, JS

App., at 16a. See Sierra Club v, Abston Constr. Co., Inc., 620

F.2d 41 (5th Cir. re Consolidation Coal Co. v. Costle, 604

F.2d 239 (4th Cir. 1979), cert. granted sub nom. EPA 1,

780 (1980) Stone Association, ..... US. ....., 62 L.Ed.2d

—_;

lation of surface coal mining was an integral govern-

mental function protected by the Tenth Amendment.

Rather, the District Court reasoned that, “Land use con-

trol and planning is a traditional or integral govern-

mental function or area of State sovereignty,”!! essential

to the separate and independent existence of the States.

Land Use Planning And Control—An Attribute Of State

Sovereignty

As to the Commerce Clause, National League of Cities

held that Congress may not exercise this “authority in

fa] manner” so as to impair “attributes of [State]

sovereignty,” particularly governmental functions “es-

sential to separate and independent existence” of the

States. 426 U.S. at 845. Land use planning and control is

such an attribute of State sovereignty.

National League of Cities is but a part of the evolution

of “limits imposed by federalism,” which evolution must

take place “just as our understanding of Congress’ power

under the Commerce Clause has evolved.”!* Anything

short of such balanced evolution will eventually leave

but a national constitution, as opposed to a “compoundly

federal and national constitution” as intended and ac-

tually structured by the Framers.'*

11 Conclusion No. 3, JS App., at 28a.

12 Lafayette v. Louisiana Power & Light Co., 485 U.S. 389,

421 n.2 (1978) (Burger, C.J., concurring). It may be that “ex-

mola gh and not “logic” or even political pailosonny is at the

ase of the evolution of federalism principles. California v.

United States, 488 U.S. 645, 648 (1978).

18 Diamond, Commentaries on The Federalist, 86 YALE L.J.

1273, 1282-88 (1977).

If the Commerce Clause extends to local activities

which affect commerce “even in the minutest degree,”

then Congress quite obviously can extend its powers into

areas “never intended” or contemplated by the Framers

of the Constitution’ and the implicit federalism con-

cepts. The concomitant necessity for the evolution of the

limits imposed by federalism, particularly on the Com-

merce Clause power as it affects the attributes of

sovereignty of the States, is self-evident.

As but one example—if the postmining land use of

prime farmland can be restricted by Congress to farm-

ing, which effectively prohibits any other use, in-

cluding non-commercial uses [based on a negligible

effect on interstate commerce], the Commerce Clause

wil) be extended to reach local non-commercial activi-

ty, both public and private. Based on the asserted yearly

change in use of one million acres of land from

agricultural productivity, of which 98% is due to ur-

banization and water needs and only 2% is due to sur-

face coal mining [the yearly wasted agricultural produc-

tivity through the Agricultural Stabilization Program is

200 times more than the amount affected by surface

mining],’° the Federal Government seeks to mandate

land use planning and conirol on prime farmland.

Assuming this to be a substantial adverse effect on

interstate commerce so as to support the purported exer-

cise of the Commerce Clause power, then the Federal

4 Maryland v. Wirtz, 392 U.S. 183, 204 — (Douglas, J.,

ate reversed, National League of Cities v. Usery, 426

U.S. 8383 (1976).

6 Perez v. United States, 402 U.S. 146, 157 (1971) (Stewart,

J., dissenting). See also Friendly, Federalism: A Foreword, 86

YALE LJ. 1019 (1977).

16 See discussion, pp. 20-24 infra. Findings No. 1-6, JS

App., at 12a-16a. ‘

—_

Government can exercise land use controls over any

change in use of farmland.

This result would propel the Federal Government,

even more than in the case at bar, into the heart of ur-

ban and water resource land use planning and control—

directly into non-commercial State and private activity.

This is not, as the Secretary asserts, JS at 17-18, No. 79-

1538, an area of private commercial activities differen-

tiated in National League of Cities, 426 U.S. at 845, and

subject to the dual sovereignty of the States and the

Federal Government over which the latter may preempt

State law determinations.

As recognized in National League of Cities, a “State”

is more than merely the location of its capital, but also

includes integral governmental functions as fire protec-

tion, police protection, sanitation, public health, parks

and recreation, as well as hospitals and schools. Land

use planning and control is a hybrid of such integral

governmental functions and a State’s regulation of pure-

ly local non-commercial activities on its lands. Even

those who would take National League of Cities into

areas far removed from this Court’s analysis acknowl-

edge the special place of land use planning and con-

trol to States’ separate and independent existence."

The essence and experience of land use planning and

control transcends its being characterized solely in

terms of a power source. It is not merely an exercise of

17 Stewart, Pyramids of Sacrifice? Problems of Federalism in

Mandating State Implementation of National Environmental

Policy, 86 YALE L.J. 1196, 1232, 1266 n.235 (1977). Most

authorities would agree that “Congress cannot deny the States

some symbolic corollaries of independent status, some revenue

with which to operate, some sphere of autonomous law making

competence and some measure of choice in selecting a political

structure.” L. TRIBE, AMERICAN CONSTITUTIONAL LAW 302

(1978) (emphasis added).

siden Silicon

the police power reserved to the States by the Tenth

Amendment!* which is also subject to preemption by an

exercise of the Commerce Clause power, just as the

provision of police and fire protection transcends merely

being an exercise of the police power, rising to the level

of attributes of State sovereignty.

Land use planning and contre] is essential to the

separate and independent existence of States and their

local communities for it is by this means that com-

munities effectuate the nature of their existence. Land

use planning and control defines the nature of the ex-

istence of a community including its character, environ-

ment, and the quality of life by determining whether it

will grow or limit its expansion,!® whether it will en-

courage industrial development,” whether it will seek to

preserve historical and natural advantages,”! whether it

will limit population density,“ and whether there will be

agricultural development as opposed to industrial

development.”

This essence of land use planning and control em-

bodies elements of federalism as the local self-

determination of the nature of its existence. This Court

18 See United States v, Darby, 312_U.S. 100, 124 OM)

Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S.

146, 156 (1919).

19 Construction Industry Association of Sonoma County v.

City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert. denied,

424 U.S. 934 (1976).

(1996) of Euclid v. Ambler Realty Co., 272 U.S. 365

21. Penn Central Transportation Co. v. New York City, 438

U.S. 104 (1978).

2 Agins v. City of Tiburon, ..... USS. ....., 65 L.Ed.2d 106

(1980).

19 mee v. Christian County, 65 Ill.2d 40, 357 N.E.2d 442

mi tinin

in Warth v. Seldin, 422 U.S. 490, 508 n.18 (1975),

recognized that “zoning laws and their provisions, long

considered essential to effective urban planning, are

peculiarly within the province of the State and local

legislative authorities.” These elements of self-

determination and accountability have been emphasized

by this Court since the early land use cases,” and derive

at least in part because of the very diverse geography,

geology and climate among the States and which differ-

ences “have all but necessitated the recognition of legal

distinctions corresponding to these differences,” in-

cluding principles of federalism. California v. United

States, 488 U.S. 645, 648 (1978). To remove these

government decisions or the hybrid governmental serv-

ice of land use planning and control from those affected

and concerned, is to allow rule by those whose destinies,

existence and, therefore, perspective are totally removed

from the consequences without accountability. It would

cut to the core of principles of federalism.

Land within a State’s boundaries is a part of the

State. The State’s relationship to its lands has been ac-

corded special treatment. More important, land within

a State’s boundaries is subject to public or State use in

* See Village of Euclid v. Ambler Realty Co., 272 U.S. 365,

389 (1926), where this Court held:

[T]he village, though physically a suburb of Cleveland, is

politically a separate municipality, with powers of its own

and authority to govern itself as it sees fit... . Its govern-

ing authorities, presumably representing a majority of

its inhabitants and voicing their will, have determined,

not that industrial developments shall cease at its bound-

aries, but that the course of such developments shall

proceed within definitely fixed lines.

*% See Kansas v. Colorado, 206 U.S. 46, 93 (1907), where it

was held, “It is enough for the purposes of this case that each

state has full jurisdiction over the lands within its borders.”

a on

the form of a servitude by which the State can restrict

the owner’s right to use the property for the benefit of

the State and its citizens without a “taking” occurring,

in part because of the presumed local benefit-burden

resulting from land use planning and control.” Land use

control and planning is in fact a State’s use of its land

based on a quasi-property interest which is a part of the

“States as States.” For the Federal Government to

regulate this State use of land is to regulate the “States

as States.”

Equally as important in the balancing of land use

planning and control within the constitutional

framework and principles of federalism is the protection

afforded the property rights which cannot be “taken for

public use, without just compensation.” It is the presum-

ed local benefit-burden resulting from land use planning

and control which prevents a “taking”?’? and again

emphasizes the elements of self-determination and ac-

countability within federalism concepts. To allow the

Federal Government under the Commerce Clause to dic-

tate land use control and planning concepts would so

dilute the local benefit, leaving only the burden, as to

impinge directly upon Fifth Amendment rights.

This hybrid governmental service of land use planning

and control through a State’s use of its lands for the

benefit of its citizens in today’s urbanized society is one

of the most essential attributes of sovereignty possessed

by the State of Indiana and its political subdivisions, In-

deed, in the case at bar, the Secretary has never argue

to the contrary. :

% See Agins v. Tiburon, ..... US. ....., 65 L.Ed.2d 106, 113

(1980); Penn Central Transportation Co. v. New York City,

438 U.S. 104, 184-35 (1978).

7 Id.

Encouragement Versus Coercion

Quite to the contrary of the Secretary’s assertions that

the Act only “encourages the States to enforce the Act,”

and that “there is no statutory requirement that the

states enforce any particular standard,” JS at 18, No.

79-1538, the Act in the various provisions challeng-

ed operates directly on the States through §§ 503 and

504 to compel the States by threatened Federal usurpa-

tion not only to enforce the Act, but to exercise their

legislative and executive powers. These sections require

that either a State Program contain statutes and regula-

tions comporting fully with the Act and the Secretary’s

regulations, § 503(a)(1), (7), or there will be Federal

usurpation through a Federal Program administered by

the Federal Government, § 504(a).

As found by the District Court, regardless of whether

Indiana chooses to adopt Federal land use policies as

well as the dictated governmental structures, procedures

and criteria for other land use policy decisions mandated

by the Act, or abdicates these functions to the Federal

Government, the issues are the same. Unless the Federal

Government has the power to make directly these land

use decisions as under the prime farmland provisions or

to assume the role as decision-maker under the

procedure for declaring lands unsuitable, § 522, the fact

that a State “chooses” to adopt these provisions in a

State Program to avoid the usurpation by the Federal

Government is irrelevant.

These conclusions are compelled by National League

of Cities and Charles C. Steward Machine Co. v. Davis,

301 U.S. 548 (1936). In National League of Cities the

Federal Government did not directly mandate or control

State policies in the areas of fire protection, police

protection, sanitation, parks, recreation, schools and

hospitals. Yet the indirect infringement on State policy

decisions in these governmental services traditionally

delivered by the States was held to be contrary to the

Tenth Amendment and other federalism concepts im-

plicit in the Constitution. Had the Federal Government

directly usurped the State governmental services, or

directly mandated that the States perform these

governmental services pursuant to federally dictated

policies, there can be no doubt that the transgression of

Tenth Amendment and federalism concepts would have

been even more severe. This is the “choice” in the case at

bar—States can change their policies to those dictated

by Congress, or the Federal Government will usurp the

functions. To state that such is a “choice” is a perversion

of the word.

Similarly, this Court acknowledged in Steward Ma-

chine Company that Federal statutes are void “as

involving the coercion of States in contravention of the

Tenth Amendment,” if two propositions are “made out

by the assailant:”

There must be a showing in the first place that

separated from the credit [as applicable to the case

at bar, the required State Program] the revenue

provisions [as applicable to the case at bar, a

Federal Program directly usurping the State func-

tions] are incapable of standing by themselves.

There must be a showing in the second place that

the tax and the credit in combination are weapons

of coercion, destroying or impairing the autonomy

of the States. 301 U.S. at 586.

In other words, if the provisions of the Act which dictate

State land use planning and control decisions as well as

require State governmental structures, procedures and

criteria for land use planning and control decisions can-

not be accomplished independently by the Federal

Government, it cannot require these of the States on

pain of Federal usurpation.

= =

State Versus Federal Interests

The drastic effects of these federally dictated land use

policies on Indiana land use planning, even without

regard to the federally dictated governmental structures,

procedures and criteria, as found by the District Court,

JS App., at 2la-25a, are that prime farmland as defined

by ‘the Secretary of Agriculture is not prime farmland

based on Indiana’s land use policies; that the highest

and best postmining land use of prime farmland under

Indiana lard use concepts is not necessarily a farming use;

that surface coal mining land use is integrally related to

the county government financial well-being in southwest-

ern Indiana to the extent that 50% of one county’s total of

real and personal property tax revenue is derived from

the land use of surface coal mining; and that the electric

utilities of Indiana are integrally related to land use of

surface coal mining to the extent of purchasing 83% of

the Indiana surface mined coal mostly under long-term

coal contracts. Furthermore, the result of the federally

dictated land use policies will be to displace the surface

coal mining land use in Indiana in favor of underground

coal mining land use.2? However, due to the nature of

Indiana’s underground mineable coal reserves as com-

pared to the reserves of Kentucky and Illinois, this shift

will not result in underground mining in Indiana; rather

it will shift Indiana surface coal mining into un-

derground mining in Kentucky and Illinois. As in

National League of Cities, the consequences of the

28 The District Court found that the six Indiana counties

which produce over 80% of Indiana’s coal account for only 5%

of its agricultural production. Finding No. 6, JS App., at 15a.

* This land use policy was based on the nature of coal

reserves in Illinois, Indiana’s coal reserves are not the same

and do not lend themselves to mining by the underground

method, which serves to illustrate the folly of national land

use planning. See Conclusion No. 17, JS App., at 35a.

‘ntitllne

federal intrusion on this attribute of State’s sovereignty

are in fact disastrous to the separate and independent

existence of Indiana.

Assuming that a balancing of Federal and State in-

terests pursuant to National League of Cities is re-

quired, the State interest is clearly paramount to any

Federal interest. The water and air pollution aspects of

the Act were not challenged and remain intact. Thus,

there are no interstate spill-over effects and a total

absence of any national emergency. The prime farmland

provisions are directed at a trivial impact on interstate

commerce. Finally, the effect under the Act is not short

term and there are other available means to protect any

Federal interest legitimately involved.

2. Ruling On The Commerce Clause Issues Was Correct

The challenged provisions of the Act were enacted un-

der the Commerce Clause as a result of the asserted

effect of surface coal mining on interstate commerce in

the form of air and, primarily, water pollution.

In order for an intrastate activity to be subject to

regulation under the Commerce Clause, in conjunction

with the Necessary and Proper Clause, such activity

must have a substantial and adverse effect on interstate

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

379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S.

294 (1964); Wickard v. Filburn, 317 U.S. 111 (1942). The

judicial focus is on “whether the particular activity

regulated or prohibited is within the reach of the federal

power.” United States v. Darby, 312 U.S. 100, 120-21

(1941) (emphasis added). With respect to each particular

facet of surface mining being regulated, there must

be a rational basis in light of the facts and testi-

mony before Congress to support the finding that

-— =

the particular facet of surface mining regulated has a

substantial and adverse effect on interstate commerce.

Katzenbach v. McClung, supra. This Court has recogniz-

ed “that Congress may [not] use a relatively trivial im-

pact on commerce as an excuse for broad general

regulation of state or private activities.” Maryland v.

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

Even if a rational basis is found, the inquiry is not

complete. The focus under the Necessary and Proper

Clause is whether the means chosen by Congress [the

challenged provision of the Act] is “plainly adapted to

the legitimate end” of alleviating the adverse effect of

the particular facet or activity regulated on interstate

commerce. Only if such a relationship is found is the

provision valid. Heart of Atlanta Motel, Inc. v. United

States, supra; Katzenbach v. McClung, supra; M’Culloch

v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).*%°

The Secretary impliedly concedes that the prime

farmland provisions of the Act are not related in any

way to the alleviation of air or water pollution, and

seeks to sustain such provisions because of some asserted

effect of surface mining on agricultural productivity

and, therefore, on interstate commerce, JS at 10. Con-

trary to the Secretary’s mischaracterization, the District

Court did not merely find that surface mining on prime

farmland in Indiana has a trivial impact on interstate

% The fact that other, collateral results will be attained will

not invalidate the regulation if, and only if, the regulation is

otherwise valid, that is, adapted to removing the rationally

found substantial adverse effect on interstate commerce. See

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 163 (1942).

Congress may not, “‘under the pretext of executing its

powers, pass laws for the accomplishment of objects not en-

trusted to the government.’” Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 326 (1936), quoting M’Culloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819),

commerce; rather, the District Court found that the

record before Congress demonstrated the infinitesimal

effect of surface mining on prime farmland throughout

the entire United States.

The nationwide effect of surface coal mining

operations on prime farmland was presented to Con-

gress through the Report Of The Interagency Task Force

On The Issue Of A Moratorium Or A Ban On Mining In

Prime Agricultural Lands [hereinafter “Report”].3! The

Report included the results of a 1975 study conducted by

the Soil Conservation Service, which found that the Na-

tion coniains a total of 384,000,000 acres of prime

farmland, of which 65% was used for cropland with ap-

proximately 134,000,000 acres of prime farmland not in

cropland use.

Further studies were conducted based upon the an-

nual production of surface coal mining in the United

States in 1977. The studies showed that only 21,800

acres of prime farmland are disturbed by surface min-

ing each year, which constitutes only 0.006% of the total

prime farmland in the United States. Thus, it would

take 166 years for surface mining to disturb even 1% of

the total prime farmland in the Nation.

It was concluded that even if all the prime farmland

affected by surface mining in 1977 came entirely out of

corn production, the annual effect based on the 1976/77

81 The Interagency Task Force Report was prepared by Of-

fice of Management and Budget, Soil Conservation Service,

Bureau of Mines, Federal Energy Administration and the En-

vironmental Protection Agency. It was presented to Congress

with a report entitled Restoring Soil Productivity On Surface-

Mined Land, Johnson, McCormick and Samson (1977), which

was presented to the House Committee at Briefing Presenta-

tion The Soil Conservation Service Before Committee

On telecon And Insular Affairs, U.S. House of Represen-

tatives, April 5, 1977, JS App., at 12a-13a.

crop year would have been less than 0.04%. In compar-

ison, the Federal Government through the Agricultural

Stabilization and Conservation Service is paying farmers

not to grow crops on 5,900,000 acres, which is 200

times the amount of prime farmland disturbed an-

nually be surface coal mining. Clearly, such de minimis

effect does not constitutionally justify or “serve as an ex-

cuse for broad general regulation of state or private ac-

tivities.” Maryland v. Wirtz, supra, at 196 n.27.

The Secretary attempts to cloud the issue by ignoring

the evidence before Congress and citing only to a

general House Report [JS at 10 & n.6], which contains

no facts, and to the remarks of a Senator in floor

debates.®2 However, even the legislative history relied on

by the Secretary recognized that there is no such

rational basis.

[D]Jata contained in the report of the Interagency

Task Force on the Issue of a Moratorium or a Ban

on Mining in Prime Agricultural Lands appears to

confirm the view that a moratorium is not justified.

H.R. Rep. No. 95-218, 95th Cong., Ist Sess. 185

(1977).

82 Senators merely raised questions calling for studies to be

conducted concerning the effects of surface mining on prime

farmland and, therefore, interstate commerce as, “In addition

the amendment directs the Secretary of Agriculture to con-

duct studies on the general a ur of surface mining on

agriculture.” 123 CONG. REC. S8,104 (1977). See also 123

ConG. REC. $8,112 (1977). In the eta of the record relied

on by the Secretary, not a single fact was stated or known by

the senators peparcing the effect of surface mining on prime

farmland and food production or the balance of trade, except

for the facts set forth in the Interagency Task Force Report.

Furthermore, statements by legislators in floor debates are

“not always distinguished for candor or _ accuracy.”

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384,

396 (1951) (Jackson, J., qarerras? Such statements have ac-

cordingly been granted little weight by this Court. See Zuber

v. Allen, 396 U.S. 168, 186 (1969).

stile

The Report concluded that “[tJhe United States has am-

ple farmland to meet its domestic needs for the

foreseeable future,” Report at 6, and that the concern for

prime farmland is based merely on the belief of some

that “there exists an ethical responsibility to retain as

much as possible the existing farmlands of this Nation.”

Id.

The Secretary also contends that the approximate

original contour, topsoiling, postmining land use and

related provisions of the Act are “rational means” of

alleviating environmental pollution, JS at 10, again

choosing to ignore the record before Congress as well as

the express provisions of the Act and relying on the

general statements in one page of a House Report. The

District Court found that the original contour, top-

soiling, prime farmland, and other land use provisions of

the Act are totally unrelated to the enhancement of air

and water quality. JS App., at 16a. The Act itself sup-

ports this conclusion since the Act also contains other

provisions, not challenged by appellees, which are

the “means” of enhancing air and water quality.

Indeed, the prime farmland provisions actually cause or

increase water pollution by increasing sedimentation.

The District Court properly concluded that the

challenged provisions of the Act are attempts by Con-

gress to regulate facets of surface coal mining

operations which have no substantial adverse effect on

interstate commerce, and that each provision is not a

means reasonably or plainly adapted to any legitimate

end permitted under the Commerce Clause, that is,

alleviating substantial adverse effects on interstate com-

merce.

88 See pp. 9-10 & nn.9 and 10 supra.

3. Substantive Due Process Issue Correctly Decided

The District Court properly concluded that the prime

farmland and approximate original contour provisions

are arbitrary, irrational and capricious in situations

where such requirements are not reasonably necessary

to achieve a particular postmining land use. Contrary to

the Secretary’s claim, not only does the record support

the District Court’s conclusion, it is apparent on the face

of the Act.

The prime farmland provisions are a graphic exam-

ple. The costly prime farmland provisions are tan-

tamount to economic waste where compliance with such

requirements is unnecessary to the attainment of a par-

ticular postmining land use, as industrial, residential,

and recreational uses. Further, the prime farmland and

original contour requirements are not in any way

related to the enhancement of air and water quality. Ac-

cordingly, the failure to provide for variances from these

provisions, where the requirements are not necessary to

a proposed postmining land use, renders these re-

quirements arbitrary, irrational and capricious so as to

deprive appellees of substantive due process."

The Secretary’s assertion that it was “surely a rational

distinction” for Congress to determine that “measures

appropriate for steep-slope mines are not necessarily

4 To the extent that further factual evidence is necessary to

support the District Court’s conclusion in light of the

irrationality of the challenged provisions on their face,

appellees presented unrebutted evidence as to the exorbitant

costs being incurred by appellee coal companies as a result of

the provisions of the Act that are unrelated to air and water

quality, which include the prime farmland and approximate

original contour provisions. Finding No. 8, JS App. at 24a-

25a. It is because of such costs that Indiana surface mined

coal, 83% of which is sold to Indiana utilities, has lost its com-

petitive edge over Illinois underground mined coal being

purchased by Indiana utilities. Jd.

desirable in prime farmland areas,” JS at 12, merely

begs the question. The constitutional test is not merely

whether disparate treatment is rational in the abstract;

it is whether there is an overriding national interest

justifying the difference in treatment and whether there

is “a legitimate basis for presuming that the rule was

actually intended to serve that interest.” Hampton v.

Mow Sun Wong, 426 U.S. 88, 100, 103 (1976). Where the

discriminatory provisions are enacted pursuant to the

Commerce Clause power and the Necessary and Proper

Clause, the difference in treatment must be justified by

a substantial and adverse effect on interstate commerce.

See pp. 20-21 supra. The Secretary carefully avoids ad-

dressing the foregoing analysis. The District Court

properly concluded that there is no overriding national

interest which justified the lack of variances for the

prime farmland and original contour provisions on

lands within the Midwest and particularly Indiana.

The Secretary seeks to overturn the District Court’s

decision merely by arguing that geographical conditions

vary from State to State and, therefore, Congress can

regulate differently in light of local conditions. But Con-

gress has allowed variances for the approximate original

contour provision in steep slope and mountaintop areas

not simply because of the geographical nature of such

areas; it has provided for variances in those areas only

where it deems that something other than the ap-

proximate original contour will result in what it con-

siders to be a higher or better postmining land use.

Thus, it has not allowed variances based on geographical

conditions, but on the use of the land following mining.

Yet Congress did not provide for such variances in light

of land uses in the Midwestern States. In other words, it

is apparent on the face of the Act that the difference in

treatment is not based upon geographical factors; it is

based exclusively on land use control considerations.

4. Taking Issue Correctly Decided

In addition to finding parts of § 522 of the Act invalid

as constituting a “taking” without just compensation, the

District Court also found that the prime farmland re-

quirements* constitute a taking of property without just

compensation in violation of the Fifth Amendment. JS

App., at 40a-42a.

It is technologically impossible to reclaim prime

farmland to its premining yield under high levels of

management. Consequently, mine operators will not be

able to demonstrate that the land can be reclaimed to its

prior productivity in order to obtain a permit to mine on

prime farmland. The record also demonstrates that

appellee coal companies own coal rights under prime

farmland and intend to mine the same. Since the coal

companies cannot make the requisite showing, they will

not be able to mine such land. The coal companies’

mineral interests will be destroyed. See Pennsylvania

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

coal companies’ property will be taken without just com-

pensation.

5. Procedural Due Process Issue Decided Correctly

The District Court properly ruled that § 518(c)

violates procedural due process guarantees by requiring

% The provisions involved are those which require that,

before a permit will be granted for surface mining on prime

farmland, the regulatory authority must find that the

operator has the technological capability to restore such land

to equivalent levels of yield, 510(dX1), that the prior produc-

tivity of the land under “high levels of management” be set

forth in the reclamation plan as the target yield,

§ 508(aX2\C), and that a bond on prime farmland may not be

released until the soil productivity has been returned to

equivalent levels of yield as nonmined prime farmland in the

surrounding area under equivalent management practices,

§ 519(c)(2).

seis

mine operators charged with a violation of the Act to

prepay the proposed civil penalty in order to obtain a

hearing, see Fuentes v. Shevin, 407 U.S. 67 (1972),

thereby being forced to purchase their due process

rights.

The only exception to the constitutional requirement

that persons be given an opportunity for a hearing

before their property is taken, is where there is a valid

governmental interest that justifies postponing the hear-

ing until after their property is taken. See Boddie v.

Connecticut, 401 U.S. 371, 378-79 (1971). There is no

such exigency in this case. The only asserted interest is

one of administrative convenience in that if, following a

hearing, it is determined that a violation did occur, the

Federal Government need take no further measures to

coect the penalty. There is simply no authority for the

proposition that personal constitutional guarantees can

he swept aside for the mere sake of administrative or

bureaucratic convenience.** Therefore, the District Court

% The constitutional infirmity inherent in § 518(c) is not

cured by the fact that the Secretary’s regulations provide an

opportunity for a “conference” before the pro penalty

must be paid into escrow. Such an informal conference cannot

in any way be characterized as a meaningful opportunity for

a hearing where it is held before the same “prosecutor” which

has alleged the violation in the first place.

Furthermore, the fact that the “refund-with-interest” require-

ment in § 518(c) may mean that mine operators who are sub-

sequently found not to have violated the Act will suffer no

financial injury is irrelevant. It is the deprivation of prope

prior to a hearing that draws the Fifth Amendment's

safeguards to bear, not whether the person deprived comes

out with a loss at the end. Moreover, in light of the fact that

civil penalties can range up to $5,000 per violation, and each

day of continuing violation can be deemed to be a separate

violation for purposes of the assessment of a penalty, § 518(a),

alleged violators face the potential hardship of coming up

with thousands of dollars in order to purchase their due

process rights. That such sums may be returned with interest

after a hearing does not avoid the hardship of having to come

up with that huge amount in the first place.

= a

properly concluded that § 518(c) violates the procedural

due process requirements of the Fifth Amendment.

CONCLUSION

The District Court’s decision was correct in all

respects and, accordingly, should be affirmed.

Respectfully submitted,

THEODORE L. SENDAK

Attorney General, State of Indiana

JACK R. O'NEILL

Deputy Attorney General, State of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6357

For State of Indiana, Otis R. Bowen, M.D.,

Governor, Indiana Department of Na-

tural Resources, and Joseph D. Cloud,

Director.

HARRY T. ICE

G. DANIEL KELLEY, JR.

BYRON L. MYERS

111 Monument Circle, 10th Floor

Indianapolis, Indiana 46204

(317) 635-1213

For Indiana Coal Association, Meadowlark

Farms, Inc., AMAX Coal Company, a

Division of AMAX Inc., Peabody Coal

Company, and John A. Conlon.

—la—

APPENDIX

STATUTORY PROVISIONS INVOLVED

Section 101(b) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. § 1201(b) (Supp.

1979), provides:

§ 1201. Congressional findings

The Congress finds and declares that—

* * *

(b) coal mining operations presently con-

tribute significantly to the Nation’s energy re-

quirements; surface coal mining constitutes one

method of extraction of the resource; the

overwhelming percentage of the Nation’s coal

reserves can only be extracted by underground

mining methods, and it is, therefore, essential

to the national interest to insure the existence

of an expanding and economically healthy un-

derground coal mining industry;

Sections 102(c) and (k) of the Surface Mining Control

and Reclamation Act of 1977, 30 U.S.C. § 1202(c) and

(k) (Supp. 1979), provide:

§ 1202. Statement of purpose

It is the purpose of this chapter to—

* * *

are not conducted where reclamation as re-

quired by this chapter is not feasible;

* * *

—2a—

(k) encourage the full utilization of coal

resources through the development and

ick ei oe of underground extraction

technologies;

* * *

Section 503(a) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. § 1253(a) (Supp.

1979), provides:

§ 1253. State programs—Regulation of surface coal

mining and reclamation operations; submit-

tal to Secretary; time limit; demonstration of

effectiveness

(a) Each State in which there are or may be con-

ducted surface coal mining operations on non-

Federal lands, and which wishes to assume ex-

clusive jurisdiction over the regulation of surface

coal mining and reclamation operations, except as

provided in sections 1271 and 1273 of this title and

subchapter IV of this chapter, shall submit to the

Secretary, by the end of the eighteenth-month

period beginning on August 3, 1977, a State

program which demonstrates that such State has

the capability of carrying out the provisions of this

chapter and meeting its purposes through—

(1) a State law which provides for the

regulation of surface coal mining and reclama-

tion operations in accordance with the re-

quirements of this chapter;

(2) a State law which provides sanctions for

violations of State laws, regulations, or con-

ditions of permits concerning surface coal min-

ing and reclamation operations, which sanc-

tions shall meet the minimum requirements of

this chapter, including civil and criminal ac-

tions, forfeiture of bonds, suspensions,

revocations, and withholding of permits, and

the issuance of cease-and-desist orders by the

State regulatory authority or its inspectors;

—3a—

(3) a State regulatory authority with suf-

ficient administrative and technical personnel,

and sufficient funding to enable the State to

regulate surface coal mining and reclamation

operations in accordance with the requirements

of this chapter;

(4) a State law which provides for the effec-

tive implementations, maintenance, and en-

forcement of a permit system, meeting the re-

quirements of this subchapter for the

regulations of surface coal mining and

reclamation operations for coal on lands within

the State;

(5) establishment of a process for the

designation of areas as unsuitable for surface

coal mining in accordance with section 1272 of

this title provided that the designation of

Federal lands unsuitable for mining shall be

performed exclusively by the Secretary after

consultation with the State; and

(6) establishment for the purposes of

avoiding duplication, of a process for coor-

dinating the review and issuance of permits for

surface coal mining and reclamation operations

with any other Federal or State permit process

applicable to the proposed operations; and

(7) rules and regulations consistent with

regulations issued by the Secretary pursuant to

this chapter.

Section 504(a) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. § 1254(a) (Supp.

1979), provides:

§ 1254. Federal programs—Promulgation and im-

plementation by Secretary for State

(a) The Secretary snall prepare and, subject to

the provisions of this section, promulgate and im-

plement a Federal program for a State no later

than thirty-four months after August 3, 1977, if

such State—

—4a—

(1) fails to submit a State program covering

surface coal mining and reclamation operations

by the end of the eighteen-month period begin-

ning on August 3, 1977;

(2) fails to resubmit an acceptable State

program within sixty days of disapproval of a

proposed State program: Provided, That the

Secretary shall not implement a Federal

program prior to the expiration of the initial

period allowed for submission of a State

program as provided for in clause (1) of this

subsection; or

(3) fails to implement, enforce, or maintain

its approved State program as provided for in

this chapter.

If State compliance with clause (1) of this subsec-

tion requires an act of the State legislature, the

Secretary may extend the period of submission of

the State program up to an additional! six months.

Promulgation and implementation of a Federal

program vests the Secretary with exclusive

jurisdiction for the regulation and control of surface

coal mining and reclamation operations taking

place on lands within any State not in compliance

with this chapter. After promulgation and im-

plementation of a Federal program the Secretary

Shall be the regulatory authority. If a Federal

program is implemented for a State, section

1272(a), (c), and (d) of this title shall not apply for a

period of one year following the date of such im-

plementation. In promulgating and implementing a

Federal program for a particular State the

Secretary shall take into consideration the nature of

that State’s terrain, climate, biological, chemical,

and other relevant physical conditions.

Section 510(b)(1), (2), (4) of the Surface Mining Con-

trol and Reclamation Act of 1977, 30 U.S.C. § 1620(b)

(1), (2), (4) (Supp. 1979), provides:

—ja—

§ 1260. Permit approval or denial—Basis for deci-

sion; notification of applicant and local

government officials; burden of proof

Requirements for approval

(b) No permit or revision application shall be ap-

proved unless the application affirmativeiy

demonstrates and the regulatory authority finds in

writing on the basis of the information set forth in

the application or from information otherwise

available which will be documented in the approval,

and made available to the applicant, that—

(1) the permit application is accurate and

complete and that all the requirements of this

chapter and the State or Federal program have

been complied with;

(2) the applicant has demonstrated that

reclamation as required by this chapter and

the State or Federal program can be ac-

complished under. the reclamation plan con-

tained in the permit application;

* * *

(4) the area proposed to be mined is not in-

cluded within an area designated unsuitable

for surface coal mining pursuant to section

1272 of this title or is not within an area under

study for such designation in an administrative

proceeding commenced pursuant to section

1272(a)(4)(D) or section 1272(c) of this title

(unless in such an area as to which an ad-

ministrative proceeding has commenced pur-

suant to section 1272(a)(4)(D) of this title, the

operator making the permit application

demonstrates that, prior to January 1, 1977, he

has made substantial legal and financial com-

mitments in relation to the operation for which

he is applying for a permit);

—6a—

Section 51a) and (bX2), (4), (8), (10), (11), (12), (14)

and (16) of the Surface Mining Control and Reclamation

Act of 1977, 30 U.S.C. § 1265(a) and (b)(2), (4), (8),

(10), (11), (12), (14) and (16) (Supp. 1979), provides:

§ 1265. Environmental protection performance

standards—Permit requirement

(a) Any permit issued under any approved State

or Federal program pursuant to this chapter to con-

duct surface coal mining operations shall require

that such surface coal mining operations will meet

all applicable performance standards of this

chapter, and such other requirements as the

regulatory authority shall promulgate.

General standards

(b) General performance standards shall be

applicable to all surface coal mining and reclama-

tion operations and shall require the operation as a

minimum to—

* * *

(2) restore the land affected to a condition

capable of supporting the uses which it was

capable of supporting prior to any mining, or

higher or better uses of which there is

reasonable likelihood, so long as such use or

uses do not present any actual or probable

hazard to public health or safety or pose any

actual or probable threat of water diminution

or pollution, and the permit applicants’

declared proposed land use following reclama-

tion is not deemed to be impractical or un-

reasonable, inconsistent with applicable land

use policies and plans, involves unreasonable

delay in implementation, or is violative of

Federal, State, or local law;

* * &

—Ja—

(4) stabilize and protect ail surface areas in-

cluding spoil piles affected by the surface coal

mining and reclamation operation to effectively

control erosion and attendant air and water

pollution;

* * *

(8) create, if authorized in the approved

mining and reclamation plan and permit, per-

manent impoundments of water on mining sites

; as part of reclamation activities only when it is

adequately demonstrated that—

(A) the size of the impoundment is ade-

quate for its intended purposes;

(B) the impoundment dam construction

will be so designed as to achieve necessary

stability with an adequate margin of safety

compatible with that of structures con-

structed under section 1006 of Title 16;

be suitable on a permanent basis for its in-

tended use and that discharges from the im-

poundment'will not degrade the water quali-

ty below water quality standards established

pursuant to applicable Federal and State law

in the receiving stream;

(D) the level of water will be reasonably

stable;

} (E) final grading will provide adequate

7 and access for proposed water uses;

(F) such water impoundments will not

result in the diminution of the quality or

quantity of water utilized by adjacent or sur-

rounding landowners for agricultural, in-

dustrial recreational,! or domestic uses;

* *

bees

(10) minimize the disturbances to the

prevailing hydrologic balance at the mine-

site and in associated oftsite areas and to the

quality and quantity of water in surface and

ground water systems both during and after

surface coal mining operations and during

reclamation by—

(A) avoiding acid or other toxic mine

drainage by such measures as, but not

limited to—

(i) preventing or removing water from

contact with toxic producing deposits;

(ii) treating drainage to reduce toxic

content which adversely affects

downstream water upon being released to

water courses;

(iii) casing, sealing, or otherwise

managing boreholes, shafts, and wells and

keep acid or other toxic drainage from

entering ground and surface waters;

(BXi) conducting surface coal mining

operations so as to prevent, to the extent

possible using the best technology current-

ly available, additional contributions of

suspended solids to streamflow, or runoff

outside the permit area, but in no event shall

contributions be in excess of requirements

set by applicable State or Federal law;

(ii) constructing any siltation structures

pursuant to subparagraph (BXi) of this sub-

section prior to commencement of surface

coal mining operations, such structures to be

certified by a qualified registered engineer

to be constructed as designed and as ap-

proved in the reclamation plan;

or large settling ponds or other siltation

structures from drainways after disturbed

—IJa—

areas are revegetated and stabilized; and

depositing the silt and debris at a site and in

a manner approved by the regulatory

authority;

(D) restoring recharge capacity of the

mined area to approximate premining con-

ditions;

(E) avoiding channel deepening or

enlargement in operations requiring the dis-

charge of water from mines;

(F) preserving throughout the mining

and reclamation process the essential

hydrologic functions of alluvial valley floors

in the arid and semiarid areas of the coun-

try; and

(G) such other actions as the regulatory

authority may prescribe;

(11) with respect to surface disposal of mine

wastes, tailings, coal processing wastes, and

other wastes in areas other than the mine

working or excavations, stabilize all waste piles

in designated areas through construction in

compacted layers including the use of incom-

bustible and impervious materials if necessary

and assure the final contour of the waste pile

will be compatible with natural surroundings

and that the site can and will be stabilized and

revegetated according to the provisions of this

chapter;

(12) refrain from surface coal mining

within five hundred feet from active and aban-

doned underground mines in order to prevent

breakthroughs and to protect health or safety

of miners: Provided, That the regulatory

authority shall permit an operator to mine

near, through or partially through an aban-

doned underground mine or closer to an active

underground mine if (A) the nature, timing,

and sequencing of the approximate coincidence

—10a—

of specific surface mine activities with specific

underground mine activities are jointly ap-

proved by the regulatory authorities concerned

with surface mine regulation and the health

and safety of underground miners, and (B)

such operations will result in improved

resource recovery, abatement of water pollu-

tion, or elimination of hazards to the health and

safety of the public;

* * *

(14) insure that all debris, acid-forming

materials, toxic materials, or materials con-

stituting a fire hazard are treated or buried

and compacted or otherwise disposed of in a

manner designed to prevent contamination of

ground or surface waters and the contingency

plans are developed to prevent sustained com-

bustion;

(16) insure that all reclamation efforts

proceed in an environmentally sound manner

and as contemporaneously as practicable with

the surface coal mining operations: Provided,

however, That where the applicant proposes to

combine surface mining operations with un-

derground mining operations to assure max-

imum practical recovery of the mineral

resources, the regulatory authority may grant a

variance for specific areas within the reclama-

tion plan from the requirement that reclama-

tion efforts proceed as contemporaneously as

practicable to permit underground mining

operations prior to reclamation:

(A) if the regulatory authority finds in

writing that:

(i) the applicant has presented, as part

of the permit application, specific, feasible

plans for the proposed underground min-

ing operations;

—lla—

(ii) the proposed underground mining

operations are necessary or desirable to

assure maximum practical recovery of the

mineral resource and will avoid multiple

disturbance of the surface;

(iii) the applicant has satisfactorily

demonstrated that the plan for the un-

derground mining operations conforms to

requirements for underground mining in

the jurisdiction and that permits necessary

for the underground mining operations

have been issued by the appropriate

authority;

(iv) the areas proposed for the variance

have been shown by the applicant to be

necessary for the implementing of the

proposed underground mining operations;

(v) no substantial adverse environmen-

tal damage, either on-site or off-site, will

result from the delay in completion of

reclamation as required by this chapter;

(vi) provisions for the off-site storage of

spoil will comply with paragraph (22) of

this subsection;

(B) if the Secretary has promulgated

specific regulations to govern the granting of

such variances in accordance with the

provisions of this subsection and section 1251

of this title, and has imposed such additional

requirements as he deems necessary;

provisions of this subsection are to be review-

ed by the regulatory authority not more than

three years from the date of issuance of the

permit; and

(D) if liability under the bond filed by the

applicant with the regulatory authority pur-

suant to section 125%b) of this title shall be

—12a—

for the duration of the underground mining

operations and until the requirements of this

subsection and section 1269 of this title have

been fully complied with.

Section 515(c) and (e) of the Surface Mining Control

and Reclamation Act of 1977, 30 U.S.C. § 1265(c) and

(e) (Supp. 1979), provides:

§ 1265. Environmental protection performance

standards—Permit regulation

** *

Procedures; exception to original contour restoration requirements

(cX1) Each State program may and each Federal

program shall include procedures pursuant to which

the regulatory authority may permit surface mining

operations for the purposes set forth in paragraph (3)

of this subsection.

(2) Where an applicant meets the requirements

of paragraphs (3) and (4) of this subsection a permit

without regard to the requirement to restore to ap-

proximate original contour set forth in subsection

(bX 3) or (dX 2) and (3) of this section may be granted

for the surface mining of coal where the mining

operation will remove an entire coal seam or seams

running through the upper fraction of a mountain,

ridge, or hill (except as provided in subsection

(cX4X A) hereof) by removing all of the overburden

and creating a level plateau or a gently rolling con-

tour with no highwalls remaining, and capable of

supporting postmining uses in accord with the re-

quirements of this subsection.

(3) In cases where an industrial, commercial,

agricultural, residential or public facility (including

recreational facilities) use is proposed for the post-

mining use of the affected land, the regulatory

authority may grant a permit for a surface mining

operation of the nature described in subsection

(cX2) of this section where—

—13a—

(A) after consultation with the appropriate

land use planning agencies, if any, the propos-

ed postmining land use is deemed to constitute

an equal or better economic or public use of the

affected land, as compared with premining use;

(B) the applicant presents specific plans for

the proposed postmining land use and ap-

propriate assurances that such use will be—

(i) compatible with adjacent land uses;

(ii) obtainable according to data regard-

ing expected neea and market;

(iii) assured of investment in necessary

public facilities;

(iv) supported by commitments from

public agencies where appropriate;

(v) practicable with respect to private

financial capability for completion of the

proposed use;

(vi) planned pursuant to a schedule at-

tached to the reclamation plan so as to in-

tegrate the mining operation and reclama-

tion with the postmining land use; and

(vii) designed by a registered engineer in

conformance with professional standards es-

tablished to assure the stability, drainage,

and configuration necessary for the intended

use of the site;

with adjacent land uses, and existing State and

local land use plans and programs;

(D) the regulatory authority provides the

governing body of the unit of general-purpose

government in which the land is located and

any State or Federal agency which the

regulatory agency, in its discretion, determines

to have an interest in the proposed use, an op-

portunity of not more than sixty days to review

and comment on the proposed use;

—l4a—

(E) all other requirements of this chapter

will be met.

(4) In granting any permit pursuant to this sub-

section the regulatory authority shall require that—

(A) the toe of the lowest coal seam and the

overburden associated with it are retained in

place as a barrier to slides and erosion;

(B) the reclaimed area is stable;

drains inward from the outslopes except at

specified points;

(D) no damage will be done to natural

watercourses;

(E) spoil will be placed on the mountaintop

bench as is necessary to achieve the planned

postmining land use: Provided, That all excess

spoil material not retained on the mountaintop

shall be placed in accordance with the

provisions of subsection (bX22) of this section;

(F) insure stability of the spoi! retained on

the mountaintop and meet the other re-

quirements of this chapter;

(5) The regulatory authority shall promulgate

specific regulations to govern the granting of per-

mits in accord with the provisions of this subsec-

tion, and may impose such additional requirements

as he deems to be necessary.

(6) All permits granted under the provisions of

this subsection shal! be reviewed not more than

three years from the date of issuance of the permit,

unless the applicant affirmatively demonstrates

that the proposed development is proceeding in ac-

cordance with the terms of the approved schedule

and reclamation plan.

x * *

—1l5a—

Variances to original contour restoration requirements

(eX1) Each State program may and each

Federal program shall include procedures pursuant

to which the regulatory authority may permit

variances for the purposes set forth in paragraph

(3) of this subsection, provided that the watershed

control of the area is improved; and further provid-

ed complete backfilling with spoil material shall be

required to cover completely the highwall which

material will maintain stability following mining

and reclamation.

(2) Where an applicant meets the requirements

of paragraphs (3) and (4) of this subsection a

variance from the requirement to restore to ap-

proximate original contour set forth in subsection

(dX 2) of this section may be granted for the surface

mining of coal where the owner of the surface

knowingly requests in writing, as a part of the per-

mit application that such a variance be granted so

as to render the land, after reclamation, suitable for

an industrial, commercial, residential, or public use

(including recreational facilities) in accord with the

further provisions of (3) and (4) of this subsection.

(383XA) After consultation with the appropriate

land use planning agencies, if any, the potential use

of the affected land is deemed to constitute an equal

or better economic or public use;

(B) is designed and certified by a qualified

registered professional engineer in conformance

with professional standards established to assure

the stability, drainage, and configuration necessary

for the intended use of the site; and

vironmental agencies, the watershed of the affected

land is deemed to be improved.

(4) In granting a variance pursuant to this sub-

section the regulatory authority shall require that

only such amount of spoil will be placed off the

mine bench as is necessary to achieve the planned

—1l16a—

postmining land use, insure stability of the spoil

retained on the bench, meet all other requirements

of this chapter, and all spoil placement off the mine

bench must comply with subsection (bX 22) of this

section.

(5) The regulatory authority shall promulgate

specific regulations to govern the granting of

variances in accord with the provisions of this sub-

section, and may impose such additional re-

quirements as he deems to be necessary.

(6) All exceptions granted under the provisions

of this subsection shall be reviewed not more than

three years from the date of issuance of the permit,

unless the permittee affirmatively demonstrates

that the proposed development is proceeding in ac-

cordance with the terms of the reclamation plan.

Section 518a) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. § 1268(a) (Supp.

1979), provides:

§ 1268. Penalties—Civil penalties for violations of

permit conditions and provisions of this

subchapter

(a) In the enforcement of a Federal program or

Federal lands program, or during Federal enforce-

ment pursuant to section 1252 of this title or during

Federal enforcement of a State program pursuant

to section 1271 of this title, any permittee who

violates any permit condition or who violates any

other provision of this subchapter, may be assessed

a civil penalty by the Secretary, except that if such

violation leads to the issuance of a cessation order

under section 1271 of this title, the civil penalty

shall be assessed. Such penalty shall not exceed $5,-

000 for each violation. Each day of continuing viola-

tion may be deemed a separate violation for pur-

poses of penalty assessments. In determining the

amount of the penalty, consideration shall be given

—1l7a—

to the permittee’s history of previous violations at

the particular surface coal mining operation; the

seriousness of the violation, including any

irreparable harm to the environment and any

hazard to the health or safety of the public; whether

the permittee was negligent; and the demonstrated

good faith of the permittee charged in attempting

to achieve rapid compliance after notification of the

violation.

Section 701(28) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. § 1291(28) (Supp.

1979), provides:

§ 1291. Definitions

* *

(28) “surface coal mining operations” means—

(A) activities conducted on the surface of

lands in connection with a surface coal mine or

subject to the requirements of section 1266 of

this title surface operations and surface im-

pacts incident to an underground coal mine,

the products of which enter commerce or the

operations of which directly or indirectly affect

interstate commerce. Such activities include

excavation for the purpose of obtaining coal in-

cluding such common methods as contour,

strip, auger, mountaintop removal, box cut,

open pit, and area mining, the uses of ex-

plosives and blasting, and in situ distillation or

retorting, leaching or other chemical or

physical processing, and the cleaning, concen-

trating, or other processing or preparation,

loading of coal for interstate commerce at or

near the mine site: Provided, however, That

such activities do not include the extraction of

coal incidental to the extraction of other

minerals where coal does not exceed 16% per

centum of the tonnage of minerals removed for

—18a—

purposes of commercial use or sale or coal ex-

i aa subject to section 1262 of this title;

(B) the areas upon which such activities oc-

cur or where such activities disturb the natural

land surface. Such areas shall also include any

adjacent land the use of which is incidental to

any such activities, all lands affected by the

construction of new roads or the improvement

or use of existing roads to gain access to the

site of such activities and for haulage, and ex-

cavations, workings, impoundments, dams, ven-

tilation shafts, entry-ways, refuse banks,

dumps, stockpiles, overburden piles, spoil

banks, culm banks, tailings, holes or

depressions, repair areas, storage areas,

processing areas, shipping areas and other

areas upon which are _ sited _ structures,

facilities, or other property or materials on the

surface, resulting from or incident to such ac-

tivities; and

* * *

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