Amicus Brief — Hodel v. Indiana

See LG RO |

No. 80-231

SOON Ji. CU

IN THE a ia a ene

Supreme Court of the United States

OcToBER TERM, 1980

Crem D. ANDRUS, SECRETARY OF THE INTERIOR,

ET AL, Appellants,

Ve

Srate or INDIANA, ET AL., Appellees.

On Appeal From the United States District Court for the

Southern District of Indiana

BRIEF OF THE NATIONAL LEAGUE OF CITIES AND THE

STATES OF ARIZONA, HAWAII, KANSAS, LOUISIANA

AND UTAH AS AMICI CURIAE

IN SUPPORT OF THE MOTION TO AFFIRM

Ropert K. CORBIN Ross D. Davis

Attorney General Davis & SIMPICH

The State of ARIZONA 910 Sixteenth Street, N.W.

WayNE MINAMI Washington, D.C, 20006

wry oO) OF

Attorney General (202) 833-3640

The State of ILAwall Attorney for National

‘ WT 1 eC MM , Ss

Rosert T, STEPHAN League of Cities

Attorney General

The State of KANSAS

WiLuLiAM J. GusteE, JR.

Attorney General

CarMACK M, BLACKMON

Assistant Attorney General

Gary L. KeYSER

Assistant Attorney General

The State of LOUISIANA

Ronert B. LLANSEN

Attorney General

The State of UTAH

ee

Seemann

Press of BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

1

QUESTIONS PRESENTED

The legal issues of particular concern to the amici

are:

1. Whether the prime farmlands provisions and

procedures in Title V of the Surface Mining Control

and Reclamation Act of 1977 (the ‘‘Act’’) §§ 501-529,

30 U.S.C.A. §§ 1251-79 (Supp. 1980) exceed Congress’

powers under the Commerce Clause of Article I, Sec-

tion 8, of the Constitution, and

2. Whether the same provisions violate the Tenth

Amendment.

lil

TABLE OF CONTENTS

Page

QuusTiONs PRESENTED 2.0.2.0 ccccccscccccccescccess i

Interests OF AMICI CURIAE ........cccccscuvees 2

SUMMARY OF ARGUMENT ..,....-0cceccecccceetoveess 6

RS ci. Fe i ccdivocdecdéccesoccvincsvedoosnrs 7

CORIO cn ccccdebosvscervebeorstedonecoeondes 15

TABLE OF AUTHORITIES

Cases:

Agins v. Tiburon, U.S. ——, 100 S. Ct. 2138 (1980) 13

Amersbach v. Cleveland, 598 F.2d 1033 (6th Cir. 1979) 5

Brown v. Maryland, 25 U.S. 419 (12 Wheat.) (1827).. 8

Gibbons v. Ogden, 22 U.S. 1 (9 Wheat.) (1824) ...... 8

Hadacheck v. Sebastian, 239 U.S. 394 (1915) ........ 13

Hamilton v. Kentucky Distilleries Co., 251 U.S. 146

SE vcr uct R who bat baed bch Skaee ocee bebacds hs Ve'ws 11

Ilammer v. Dagenhart, 247 U.S. 251 (1918) ......... 16

Indiana v. Andrus, No. IP 78-500-C (S8.D. Ind. June

Be MR nce e bashes ss Ciaews edeersakagetel 11, 15

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

ore Pi re eer rt ee ee 5, 6, 13, 14

New York v. Miln, 36 U.S. 102 (11 Pet.) (1837) ...... 8, 12

Penn Central Transportation Co. v. New York City,

ee We LEE ¢ ccsboe wed ens easabeeeed bans 13

United States v. Darby, 312 U.S. 100 (1941) ........ 10, 16

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

Ss ah owas coeds NUN G60 debese beded bans awees 9, 12

PREVIOUS PAGE WAS BLANK

iv

Table of Authorities Continued

Page

CoNSTITUTION AND STATUTES:

United States Constitution:

Art. I, Section 8 (Commerce Clause) ...... i, 3, 6, 10,

12, 13, 14, 16

Be IN ois 5s ve 6 cnen scawsenstcne es 3

Tenth AmbenGment oo .6. ccc cesesiee i, 3, 7, 11, 12, 18

STaTUTES:

Clean Air Act, 42 U.S.C.A. § 7401, et seg. (Supp.

| | RS eo ape Pere Peers Pree 2 eran

Surface Mining Control and Reclamation Act of 1977,

30°U.S.C.A. §§ 1251-79 (Supp. 1980) ....... i, 3, 6, 10,

11, 12, 13, 14, 15, 16, 17

LEGISLATIVE MATERIALS:

H. R. Rep. No. 564, 95th Cong., 1st Sess., reprinted

in [1977] U.S. Copgr Cone. & Ap. News 1506 ..... 17

S. Rep. No. 127, 95th Cong., lst Sess. (1977) ........ 17

MISCELLANEOUS!

X Apvisory Commission ON INTERGOVERNMENTAL REL«-

tions, The Federal Role in the Federal System.

The Dynamics of Growth, in American FEDERALISM

1960-1980: ConrTrasts AND ContinuiTies (A-86)

(publication forthcoming U.S. Government Print-

Se SID gis Se oni cule Wa oa Cawks bs bbarclene yews 4,5

No. 80-231

IN THE

Supreme Court of the United States

OcToBER TERM, 1980

Ceci, 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

BRIEF OF THE NATIONAL LEAGUE OF CITIES AND THE

STATES OF ARIZONA, HAWAIL KANSAS, LOUISIANA

AND UTAH AS AMICI CURIAE

IN SUPPORT OF THE MOTION TO AFFIRM

* Other defendants below and appellants in this Court are the

Director of the Office of Surface Mining Reclamation and Enforce-

ment, the Office of Surface Mining Reclamation and Enforcement,

the United States Department of the Interior and the United

States of America.

** Other plaintiffs below and appellees here are the Governor of

Indiana, the Director of the Indiana Department of Natural Re-

sources, the Indiana Department of Natural Resources, the Indiana

Coal Association, Meadowlark Farms, Inc., Amax Coal Company,

Peabody Coal Company, and John A. Conlon.

2

INTERESTS OF AMICI CURIAE

This amicus curiae brief of the National League of

Cities and the States of Arizona, Hawaii, Kansas,

Louisiana and Utah as amici curiae is submitted with

the written consent of all the parties. The letters of

consent are on file with the Clerk. Rule 36.1. With re-

spect to the States, consent is not required. Rule 36.4.

The National League of Cities (‘‘NLO’’) is an Illi-

nois not-for-profit corporation organized in 1933 to

assist municipalities in performing their functions. Its

membership includes direct member cities, state muni-

cipal leagues and state league member cities. In all

almost 15,000 cities and municipalities, both large and

small, are members of and participate in the activities

of NLC. The functions of NLC as authorized in its

Bylaws include ‘‘the safeguarding of the interests,

rights, and privileges of municipalities.’’ It is in this

latter capacity that NLC offers their views in the

ease at bar.

Joining with the NLC on this amicus curiae brief

are the States of Arizona, Hawaii, Kansas, Louisiana

and Utah. The States, having continually exercised

their powers tc regulate the use of private nonfederal

lands within their borders, have a compelling interest

in preserving these integral functions.

The States’ and NLC’s interest in this appeal is

predominantly in the question of the extent to which

the federal government is authorized to undertake

zoning and land use regulation, activities which tra-

ditionally are local and community-oriented in nature

and historically the responsibility and the prerogative

3

of state and local governments. At issue are the cir-

cumstances, if any, or the extent to which the federal

government can control the use of nongovernment

prime farmlands and require state government struc-

tures and procedures for land use planning and control

under the provisions of Title V of the Surface Mining

Control and Reclamation Act of 1977 (the ‘‘Act’’),

§§ 501-29, 30 U.S.C.A. §§ 1251-79 (Supp. 1980).

The relevant provisions of the Statute deal with

surface mining on prime farmlands and involve, among

other things, mining on prime farmlands, the handling

and replacement of topsoil during and after surface

mining operations, the restoration of mined lands to

their approximate original contour, the governmental

structures and procedures for designation of certain

lands as unsuitable for surface mining, and the pre-

mining administrative review of proposed postmining

land use.

The Court below concluded that various portions of

Title V of the Surface Mining Control and Reclama-

tion Act of 1977 exceed Congress’ powers under the

Commerce Clause, impinge upon the sovereign powers

of the State of Indiana in violation of the Tenth

Amendment, and contravene due process and Taking

Clause provisions of the Fifth Amendment and de-

clared these provisions to be invalid. The amici urge

that these decisions of the Court be affirmed.

The Constitutional questions presented in this ap-

peal are raised in the context of the Act, but from the

viewpoint of the states and municipalities there are

underlying questions which are more far reaching than

+

the regulation of surface mining. These issues involve

the role of states in the federal system as contemplated

and protected by the Constitution, and address the

Constitutionally mandated organizing principles which

govern or should govern the structure and operation

of that federal system in which state and local govern-

ments must function and discharge their responsibili-

ties.

Stated very succinctly, it is the perception of the

amici that the cumulative changes in our federal sys-

tem over the past several decades have not adequately

been guided or constrained by any ascertainable or-

ganizing principles whatsoever—Constitutional or

otherwise. Consequently, in the view of the amici, the

performance of our federal governmental system has

suffered. It has become an increasingly disfunctional

form of federalism. Among other obvious deficiencies,

contemporary intergovernmental relations have become

more pervasive, more intrusive, more unmanageable,

more ineffective, more costly, and above all, more

unaccountable.’ In today’s federal system, the answer

1 These conclusions are shared, among others, by the Advisory

Commission on Intergovernmental Relations which is concluding

a study in depth of the federal role in the federal system. For

example:

Over the past twenty years the federal role has become

bigger, broader, and deeper—bigger within the federal sys-

tem, in the size of its intergovernmental outlays, and in the

number of grant programs; broader in its program and policy

concerns; and deeper in its regulatory thrusts, preemption

proclivities, and the wide range of subnational governments

interacting directly with Washington. This is the broad sum-

mary conclusion that emerges from this ten volume study and

it points to a growing centralization of policymaking. Yet,

perhaps surprisingly, this conclusion does net produce a com-

5

grows more vague as to which level of government is

in charge of what governmental authority.

In part, it was this equivocal obscurement of respon-

sibility and the associated need for more concise and

effective concepts of organization and accountability

which in the 1970’s energized the NLO, eighteen states

and other concerned parties into an active defense of

state (and local) government sovereignty against the

incursions of the federal government manifested by

Congress’ efforts to set wage and hour conditions for

state and local government employees. In 1976 this

Court’s ruling in National League of Cities v. Usery,

426 U.S. 833 (1976) was one of the consequences of

these efforts. In that case, this Court enunciated the

outlines of some Constitutionally mandated organizing

principles which if followed in the future would do

much to foster and protect the effectiveness of the

federal system. But even that ruling continues to be

attacked. See, e.g., Amersbach v. Cleveland, 598 F.2d

1033 (6th Cir. 1979).

panion generalization that the system’s delivery of services is

infinitely more centralized than its predecessor of a generation

ago. What is certain is that the current labyrinth of count-

less intergovernmental relationships—with their multiple ver-

tical, diagonal, curving, and haphazardly horizontal connec-

tions—is far more dysfunctional than that of 1960.

The contrasts, then, between the ‘‘systems’’ of 1960 and

1980 are stark, but the continuities between them, along with

perplexing paradoxes in both, leave us with an open debate

over whether we still have a noncentralized system but with a

general consensus that it does not function well. X Apvisory

COMMISSION ON INTERGOVERNMENTAL RELATIONS, The Federal

Role in the Federal System: The Dynamics of Growth, in

AMERICAN FEDERALISM 1960-1980: ConTRASTS AND CONTINUI-

Ties (A-86) (publication forthcoming U.S. Government Print-

ing Office)

6

In the 1980’s it is increasingly clear that the prin-

ciples which led this Court to its conclusions in Na-

tional League of Cities, require reiteration and per-

haps clarification as well. In the view of the amici the

case at bar demonstrates the continuing need to declare

limits to the powers under the Commerce Clause when

the use of such authorities by Congress jeopardizes the

ability of state and local governments to function in

the federal system as the Constitution contemplates

and mandates. At issue is the efficacy of the“ nation’s

system of governance.

SUMMARY OF ARGUMENT

The prime farmlands provisions and other provi-

sions of Title V of the Act as the District Court found,

are directed at the use of land and regulate and control

the use of land as distinguished from regulating com-

merce. The provisions of Title V, therefore, exceed

Congress’ powers under the Constitution in two

respects.

Land use controls and planning are a traditional

exercise of states’ police powers in the interests of

public welfare. As such, the regulation of the use of

land represents an essential and integral function of

state governments. Moreover, in our system of dual

sovereignty, state and local land use controls provide

the means for the residents of municipalities to ex-

press their values and needs and to influence through

state and local governments’ political systems the

future character of their community.

The provisions of Title V of the Act control the

use of land and the state government procedures for

land use planning. As such they are an exercise of

7

police powers which are reserved to the states under

the Tenth Amendment and are, therefore, beyond the

authority of the federal government.

In addition, to the extent that the prime farmlands

provisions may be an exercise of the commerce powers,

these powers under the Constitution must be con-

strained as au improper impairment of the ability of

states to carry on traditional and integral state func-

tions as these are contemplated by the federal system.

Accordingly, the decisions of the District Court

should be affirmed.

ARGUMENT

1. POLICE POWERS ARE BASIC AUTHORITIES RESERVED

TO THE STATES: REGULATING LAND USE IN THE PUBLIC

INTEREST IS AN EXERCISE OF POLICE POWERS; THE

LAND USE RESTRICTIONS IN TITLE V OF THE ACT CON-

STITUTE AN EXERCISE OF POLICE POWERS AND ARE

BEYOND THE AUTHORITY OF THE FEDERAL GOVERNMENT

Given the particular concern of the amici for the

ability of states and municipalities to function effec-

tively in the federal system, the amici urge that a

central question before this Court is the extent of the

authority of the federal government, if any, to engage

in land use regulation, an activity which traditionally

has been an exclusive and central responsibility of

state and local governments.

Chief Justice Marshall remarked on the existence

in the states of a panoply of legislative powers avail-

able for the protection of their welfare and the pro-

motion of local interests: ‘‘They form a portion of

that immense mass of legislation which embraces

everything within the territory of a state not surren-

8

dered to the general government; all which can be

most advantageously exercised by the states them-

selves.’’ Gibbons v. Ogden, 22 U.S. 1, 203 (9 Wheat.)

(1824). And three years later, Justice Marshall dis-

tinguished this state legislative authority as the police

powers. Brown v. Maryland, 25 U.S. 419, 444 (12

Wheat.) (1827).

The aims and aspirations of state governments—to

which ends the police powers constitute the principal

means—have been delineated over the years by our

courts. For example, Justice Barbour wrote:

Let us see what powers are left with the States.

The Federalist, in the 45th number, speaking of

this subject, says; the powers reserved to the sev-

eral States will extend to all the objects which,

in the ordinary course of affairs, concern the lives,

liberties, and properties of the people; and the

leg order, improvement, and prosperity of the

tate.

... [I]t is not only the right, but the bounden

and solemn duty of a State to advance the safety,

happiness and prosperity of its people, and to

provide for its general welfare, by any and every

act of legislation which it may deem to be con-

ducive to these ends; where the power over the

particular subject, or the manner of its exercise

is not surrendered or restrained, in the manner

just stated. That all those powers which relate to

merely municipal legislation, or what may, per-

haps, more properly be called internal police, are

not thus surrendered or restrained; and that, con-

sequently, in relation to these, the authority of a

State is complete, unqualified and exclusive. New

“4 peal ." Miln, 36 U.S. 102, 133, 189 (11 Pet.)

9

While the conclusions of the Court in this case with

respect to ‘‘intrastate commerce’”’ are no longer au-

thoritative, the language cited above would seem still

valid as a description of the critical relationships

which still exist today between the police powers and

the responsibilities and aspirations of state govern-

ments to provide for the welfare of their citizens.

Regulation of land use in the interests of the public

welfare has been and remains a primary and tradi-

tional means whereby state and local governments

exercising their police powers, seek to improve the

circumstances of their residents. The principles em-

bodied in zoning ordinances have been spelled out by

this Court:

The ordinance now under review, and all similar

laws and regulations, must find their justification

in some aspect of the police power, asserted for

the sh eye welfare.

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 within the limits of the organic

law of its creation and the State and Federal

Constitutions. Its governing authorities, pre-

sumably representing a majority of its inhabitants

and voicing their will, have determined, not that

industrial development shall cease at its bounda-

ries, but that the course of such development shall

proceed within definitely fixed lines, Village of

Euclid v. Amber Realty Co., 272 U.S. 365, 387, 389

(1926).

The propositions set out in Euclid have since been

reiterated in many decisions in support of state land

use controls. Planning and zoning as a means of in-

10

fluencing the present and future physical development

of a community in order to promote social and eco-

nomic well-being has become a traditional and integral

function of state and local governments. Warth v.

Seldin, 422 U.S. 490 (1975). It is a method whereby

state and local governments offer individual citizens

a means to express their values through the political

system and thereby to decree how their communities

should develop and grow.

In the view of the amici, the requirements of Title

V of the Act dealing with surface mining on prime

farmlands conflict directly with the laws and the tra-

dition that land use controls are the exclusive pre-

rogatives of state governments and the police powers

reserved to them, We understand, of course, that fed-

eral powers under the Commerce Clause can coexist

with state police powers and that ‘‘It is no objection

to the assertion of the power to regulate interstate

commerce that its exercise is attended by the same

incidents which attend the exercise of the police power

of the states.’’ United States v. Darby, 312 U.S. 100,

114 (1941). But the provisions of Title V of the Act

under attack here present some distinguishing cir-

cumstances.

For the reasons set out at length in its opinion, the

court below has concluded that the prime farmland

provisions are directed at aspects of surface coal min-

ing which have no substantial or adverse effect on

interstate commerce and that, in fact, those same pro-

visions represent land use controls and planning deci-

sions which are intended by the Act to be imposed

upon the states. The amici agree.

So far as the case at bar is concerned, the prime

farmlands provisions and procedures reflect the acts

11

of the federal government, not as a regulator of com-

merce among the states as exemplified by commercial

mining, but rather as a promulgator of what Senator

Byrd (as quoted in the opinion of the court below)

describes as ‘‘environmental values’’. Indiana v. An-

drus, No. IP 178-500-C (S.D. Ind. June 10, 1980).

These are applied by the federal government to prime

farmlands. Under federal precepts and value systems,

prime farmlands have special intrinsic worth—apart

from their commercial value—which must be protected

by federal laws and regulations which, according to

the trial court, amount to land use controls. The focus

and thrust of the federal regulation is on the land

itself—and not on commerce. While controls on the

use of lands can affect indirectly the activities of com-

merce, to regulate the former is quite another matter

than the regulation of commerce.

The court below has rightly concluded that Congress

lacks the authority to decree such land use controls.

The federal government has no police power; this

authority was reserved to the states by the Tenth

Amendment. Accordingly, to uphold the land use con-

trol implicit in Title V of the Act, the United States

must exact some other Constitutional power. Hamilton

v. Kentucky Distilleries Co., 251 U.S, 146 (1919). But

a Constitutional power to decree and apply ‘‘environ-

mental values’’ to the uses of land as in this case is

totally lacking. The decision of the lower court should

be affirmed.

Implicit in the statutory scheme under attack here

is a federal aspiration to use the commerce powers as

police powers to coerce the states and to undermine

existing state authority and procedures which under

our system of dual sovereignty offer individual com-

12

munities a voice in the decisions involving land use.

To hold that the Constitution authorizes such federal

power would be to change radically the nature of our

federal system and the role and responsibilities of state

governments within that system. This should not be

done.

2. LAND USE REGULATION IS AN INTEGRAL FUNCTION OF

STATE AND LOCAL GOVERNMENTS; CONGRESS MAY NOT

USE THE COMMERCE CLAUSE TO MANDATE FEDERAL

CHOICES WHICH IMPAIR BASIC STATE AND LOCAL

GOVERNMENT FUNCTIONS

The amici here urge that even if this Court should

find in the Commerce Clause some color of Constitu-

tional authority to support the enactment of Title V

of the Act, such use of the federal authority to regulate

commerce must be restrained as an unacceptable im-

pairment of state sovereignty and the ability of states

to function within the federal system as contemplated

by the Constitution and exemplified by the Tenth

Amendment.

In the first part of its argument, the amici have

suggested that the fundamental purpose, indeed the

essence of state government, is to advance the safety,

happiness, and prosperity of its people and thereby to

provide for the general welfare, Miln. And further,

that zoning, land use planning and control to achieve

these ends are basic and integral functions of state and

local governments, Huclid and Seldin. Indeed, as recog-

nized by this Court in these and other cases, there is

a functional relationship between the states’ positive

responsibility to protect and enhance the well-being of

its citizens, their use of the police powers to these

ends, and land use controls as a traditional means to

13

achieve these fundamental aims. See: Penn Central

Transportation Co. v. New York City, 438 U.S. 104

(1978) ; Agins v. Tiburon, —— U.S. ——, 100 S. Ct.

2138 (1980); Hadacheck v. Sebastian, 239 U.S. 394

(1915).

Accordingly, as demonstrated above, land use con-

trol and planning have been and are traditional state

governmental activities involving essential decisions as

to the conduct of integral functions carried on by

states in their sovereign capacities. And the controls

of these essential state decisions which Congress sought

to wield under Title V of the Act, if permitted, would

jeopardize states’ ability to function within the federal

system as contemplated and protected by the Con-

stitution.

In the case at bar, the trial court found only the

most tenuous relationship at best between the regula-

tion of commerce and the requirements of Title V of

the Act with respect to the use of prime farmlands.

Nevertheless, the government relies, as it must, on the

Commerce Clause as authority for the enactment of

Title V. The issue presented, therefore, is whether this

resort to the commerce power is constrained by Consti-

tutional considerations from the uses contemplated

under Title V. We believe that because of the prin-

ciples set out in National League of Cities the answer

is affirmative; this use of the commerce powers must

be curtailed.

As noted in National League of Cities, this Court

has ‘‘repeatedly recognized that there are attributes of

sovereignty attaching to every state government which

may not be impaired by Congress, not because Con-

gress may lack an affirmative grant of legislative

14

authority to reach the matter, but because the Consti-

tution prohibits it from exercising the authority in that

manner.’’ 426 U.S. at 845. The standard, in judging

between permissible and impermissible federal regu-

lation, is whether there is federal interference with

“functions essential to separate and independent exis-

tence.’’ 426 U.S. at 845. In the context of the case at

bar, state and local decisions with respect to the shape,

growth, character, and industrial mix of individual

communities within the state involve essential aspects

of their ‘“‘freedom to structure integral operations in

areas of traditional governmental functions.’’ 426 U.S.

at 852.

In National League of Cities, the Court defined tra-

ditional functions as ‘‘typical of those performed by

stave and local governments in discharging their dual

functions of administering the public law and furnish-

ing public services.”’ 426 U.S. at 851. Zoning and land

use planning are the basic and essential means avail-

able to state and local governments, utilizing their

police powers to control and shape the physical and

economic development of a given community in order

to promote social and economic well-being for its citi-

zens. And in the aggregate, community-oriented land

use controls shape the future of the entire state. This

governmental function is, as we have said, the essence

of state governance and as such should be held to be

beyond the reach of the Commerce Clause impairment

contemplated by the land use regulations of Title V of

the Act. Consequently, the amici urge that the decision

of the lower court be affirmed.

In this context, and given the fundamental impor-

tance to state governments of land use regulation as

a means of protecting its citizens and shaping the

15

states’ future, it seems appropriate to note again that

the lower court found that ‘‘surface coal mining opera-

tions on prime farmlands, as distinguished per se from

any other type of land, have an infinitesimal or trivial

impact on interstate commerce.’’ Indiana v. Andrus,

No. IP 78-500-C, 10 (S.D. Ind. June 10, 1980). When

compared with the extent of impairment of essential

state functions which the Act contemplates, in contrast

with the traditionally local quality of state and local

land use regulation, and considering the importance

of the state functions being undermined, and taking

into account the value of keeping land use decisions

as close as possible to the citizens most directly affected,

and considering the alternative means which are avail-

able to achieve the national aims expressed in and

through the prime farmlands provisions of the Act,

the amtict urge this Court that the federal aims ex-

pressed in and through these prime farmlands provi-

sions do not justify the kind of interference with state

sovereignty which this federal law contemplates.

Whether one regards the nature and the extent of

the impairment of state sovereignty involved here or

one balances the character of the federal and state in-

terests involved, the conclusions of the court below

seem correct and should be affirmed.

CONCLUSION

The opinions of the amici urged upon this Court

should not be construed as reflecting their views of the

problems, both national and statewide, associated with

surface mining. Rather, the aim of this amicus curiae

brief is to alert this Court to the dangers for states

and municipalities implicit in the wrong disposition

16

of the Constitutional questions before this Court. In a

very real sense at issue is the continuing viability of

the federal system contemplated by the Constitution

and the sovereignty of the states within that system.

It is not the aim of the amici to turn back the

clock, to return to the precepts of Hammer v. Dagen-

hart, 247 U.S. 251 (1918) in lieu of the scope of

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

brief could be construed, at least in part, as an attack

on the legislative mode embodied in Title V of the

Surface Mining Control and Reclamation Act. It is

typically intrusive and coercive. It seeks to impose on

the states the federal will and the federal standards

without regard to costs or consequences to the states.

The methods which Congress has chosen to pursue its

federal interests is a bad method because, among other

reasons, the statute has been enacted, it seems, without

a manifest concern for the requirements of state sov-

ereignty. The Act demonstrates a lack of appreciation

for the need to protect and foster a federal system in

which state governments retain their attributes of

sovereignty and thereby their ability to discharge their

Constitutional responsibilities within that system.

From the viewpoint of the amici the immediate sub-

stantive issue before this Court is whether under the

Commerce Clause authority, the federal government

can regulate the use of land as a means of regulating

commerce. In the case at hand, the federal government

is prepared to assume an active and presumably a

superior role over states in decreeing land use controls

on a national basis in the interests of ‘‘environmental

values’’ or whatever else the federal government may

associate with ‘‘commerce’’. With any encouragement

17

from this Court, the amici anticipate that federally

mandated land use standards and controls in very

short order will become a feature of the federal system

of governance.’

* This conclusion of the amici is based on something more than

argumentative conjecture. For example: there are many similari-

ties in legislative methods between Title V of the Act and the

Clean Air Act, 42 U.S.C.A. § 7401, et seg. (Supp. 1980). The

report of the Senate Committee on Environment and Publie Works

on the Clean Air Amendments of 1977 in discussing ‘‘Implemen-

tation Provisions’’ includes the following observations, among

others, on land use:

In the Clean Air Amendments of 1970, the Congress in-

cluded specific reference to controls on the uses of land as a

strategy supplemental to emission limitations in the achieve-

ment of ambient air quality standards, It was recognized then

that such land use strategies could become particularly effec-

tive in the maintenance of clean air and prevention of further

deterioration of dirty air.

The committee therefore, deemed it appropriate that land

use control could be included as a technique for preventing

further deterioration. . . .

EPA has promulgated land use regulations. This bill places

that EPA authority in a new perspective, precluding any

required land use controls for other than maintenance of

primary air quality standards. .

EPA may only impose land-use controls under this bill

when a State implementation plan does not provide authority

to....S. Rep. No. 127, 95th Cong., 1st Sess. 25, 26 (1977).

In sum, the Senate Committee evinced no doubt about the authority

of the federal government to resort to land use regulations, but

thought its use should be restricted to those instances where its

use was necessary and appropriate.

The reference to ‘‘land use’’ in the ‘‘Implementation Plans’’

was deleted in conference at the instigation of the House ‘‘ because

of its vagueness’. H.R. Rep. No. 564, 95th Cong., Ist Sess. 125,

reprinted in [1977] U.S. Copz Cona. & Ap. News 1506. But land

use regulation continues to be considered as a part of EPA’s

methodology.

18

It is for just these reasons that the amici suggest

that this Court view the issues before it less as an

exquisite question of the ultimate extension of the

commerce power and more in terms of the practical

organizing principles reflected in the Constitution and

the Tenth Amendment. Adherence to these principles

is necessary if the federal system is to continue to

work effectively in the interests of all the people. The

workability of the federal system is the ultimate issue

before this Court. For all these reasons, the amici urge

respectfully that the decisions of the court below be

affirmed.

Respectfully submitted,

Rospert K. CorBin Ross D. Davis

Attorney General Davis & SIMPICH

The State of ARIZONA 910 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 833-3640

The State of Hawat Attorney for Nattonal

WayYNE MINAMI

Attorney General

Rosert T. STEPHAN

Attorney General

The State of Kansas

WILLIAM J. GusTE, JR.

Attorney General

CaRMACK M, BLACKMON

Assistant Attorney General

Gary L. KEYSER

Assistant Attorney General

The State of LOUISIANA

Rosert B. HANSEN

Attorney General

The State of UTaH

League of Cities