Petition for Writ of Certiorari — Indiana Coal Council, Inc. v. Indiana Department of Natural Resources

In Tut

Supreme Court of the United States

October Term, 1089

INDIANA Coal (a N ( L. IN

AND HUNTINGBURG MACHIN

EQuIrMENT RENTAL. IN

~

INDIANA DEPARTMENT oF Na

Resources, WABASH

ARCHAEOLOGICAL Society. [Ni

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA

(jt Compe j

ICE MILLER DONADIO & RYAN

One American Square

Box &2001

Indianapolis, Indiana 4622

(317) 236-2100

BUTHOD & BUTHOD

1119 Lincoln Avenue, P.O. Box 229%

Evansville, Indiana 47714

(812) 423-5261

December 22, 199

‘Counsel of Record

Pr

4

QUESTIONS PRESENTED

Pursuant to Indiana’s version of § 522 of the federal Sur-

face Mining Control and Reclamation Act of 1977, the State!

designated a portion of Petitioner HUMER’ land as an “area

unsuitable” for surface coal mining and conditioned removal of

the land-use restriction on HUMER’S: allowing archaeologic

exploration, excavation and destruction of its property and

payment of $50,000 for archaeologic services. The questions

are:

1. Whether conditioning the removal of the land use

restriction on HUMERS accession to State sponsored entry,

archaeologic exploration, excavation, use, destruction and

appropriation of HUMER’s property without compensation, is

a taking contrary to the Fifth and Fourteenth Amendments?

A. “Had” Indiana “simply” entered and conducted an archae-

ologic excavation and study on HUMERS land, “rather

than conditioning” the removal of a land use restriction on

‘ HUMERS allowing and arranging for such, “would this

have been a taking.” [Nollan v. California Coastal Com-

mission, 483 U.S. 825, 831 (1987)].

! The parties to the proceedings below were Petitioners, Indiana Coal Coun-

cil, Inc. (“ICA”) and Huntingburg Machinery & Equipment Rental, Inc.

(“HUMER”) and Respondents, Indiana Department of Natural Resources,

(alternately referred to as “DNR,” the “Director” and the “State”), Wabash

Valley Archaeological Society, Inc. and Council for the Conservation of Indi-

~ ana Archaeology, Inc. (“Archaeologists”). Petitioners ICA and HUMER have

no parent companies, subsidiaries, or affiliates to list pursuant to Rule 2.1.

The federal Surface Mining Control and Reclamation Act of 1977 (“SMCRA”)

is codified at 30 U.S.C. § 1201 ef seqg., with $522 being at 30 U.S.C. $1272.

Indiana's version of $522 is at Ind. Code §13-4.1-14-1 ef seq.

B. “If so,” whether requiring HUMER, without compensa-

tion, to allow and arrange for an archaeologic explora-

tion, excavation, and study as well as the necessary finan-

cing, “as a condition” to the removal of a land use

restriction, “alters the outcome.” [Nollan, 483 U.S. at

834 |.

TABLE OF CONTENTS

QUESTIONS PRESENTED AND LIST OF PARTIES

OPINIONS BELOW........ AS Cee Cashak HAW es 6c

cena wae cceencccccsscsess

CONSTITUTIONAL PROVISIONS, STATUTES AND

ADMINISTRATIVE REGULATIONS INVOLVED .

EI dpa is Vicasesccccccssescceee

DNR Order — Condition to Removal of Land Use

i

Trial Court Remand Regarding HUMER Mitigation

ees cc cc eke cccwsscccssccess

Indiana Supreme Court Decision ................

REASONS FOR GRANTING THE WRIT...........

I Gia) winks 50s eeseccceccsssccess

Contravention of Nollan ..................

National Import of Decision ...............

II. Judgment Below Contravenes Nollan...........

A. Takings Analysis and Standards of Scrutiny

for Conditional Takings to Removal of Land

ERS cca ds uss becccccccees

B. Indiana Supreme Court Rules Contrary to

Nollan that the Conditional Nature of DNR

C. Indiana Supreme Court Rejects Nollan

Heightened Scrutiny to Conditioning

10

Removal of Land Use Restriction on Consent

to an Otherwise Per se Take.............. 13°

DD. Indiana Court Widens and Loosens Nollan

“Same Ends” Nexus Requirement ........ 16

Effect — Rejection of “Same Ends”... 16

Effect — Rejection of Heightened

OCONEE Ls vc deckvda bods eeeabaaakese 17

E. Indiana Court Avoids Critical Issues —

Whether the Public Purpose is an Illegiti-

mate State Interest — Confuses a Proper

Governmental Purpose as Being Legitimate

I rye Ne aa 20

BEd. COSC RAGIN doc cachecscadeclcuice oe 23

APPENDIX

Judgment and Opinion of Supreme Court of Indiana.... Al

Findings and Conclusions of Dubois Circuit Court ..... Al5

Findings of Fact and Order of the Director of the Depart-

mont of Natural ROGGUNGUR. . os oocsscascdcdhamsintcnes A34

Amended Offer Relative to Beehunter Site [HUMER

| I OO A52

U.S. Comat: Ra. Foc nss ss cxerdedwasdeaseaeee A57

U.S. Comet. Gal, Ze «|, .+00tssecceeeweuseasaee A58

Ind. Code §13-4.1-14-1 et seg. Designation of Land

Unsuitable for Surface Coal Mining .............. A60

310 Ind. Adm. Code §12-2-2 et seq. Areas Unsuitable for

i Pe ie A64

TABLE OF AUTHORITIES

Cases Page

Alanel Corp. v. Indianapolis Redevelopment Commis-

sion, 154 N.E.2d 515 (Ind. 1958). ................ 22

Chico Corp. v. Delaware-Muncie Board of Zoning

Appeals, 466 N.E.2d 472 (Ind. App. 1984)......... 14

First English Church v. County of Los Angeles, 482 U.S.

ee ee ee 11

Frontiero v. Richardson, 411 U.S. 677 (1973). ......... 19

Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)

- 9»

Hodel v. Indiana, 462 U.S. 314 (1981). ............... 7

Hodel v. Irving, 481 U.S. 704 (1987)... ...........005. 1]

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .... 11

Keystone Coal Association v. DeBenedictis, 480 U.S. 470

au eoi5 isa dn eevee we 0< eee 10, 18, 22

Loretto v. Teleprompter Manhattan CATV Corp., 458

edn dis ngies sass a seve ens as 10, 11, 12

Nollan v. California Coastal Commission, 483 U.S. 825

7 Nee decease beabecsenceas sue passim

Palmore v. Sidoti, 466 U.S. 429 (1984)... 22. ...0.00... 15

Penn Central v. New York, 438 U.S. 104 (1978). ....... 15, 19

State Highway Commission v. Ziliak, 428 N.E.2d 275

EN ia oes wacacesvcccccces oO, @, Al, 21

United States v. Dow, 357 U.S. 17 (1985)... 22... 6.6... 11

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

CU Gclivesepeseevcccnsvscescucescese 11

Vv

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ......... 18

Young v. City of Franklin, 494 N.E.2d 316 (Ind. 18°5) . 14

Constitutional Provisions, Statutes

and Administrative Regulations

SB UEC. GRO oc vn ck ceennckhusacensanee eee

90 UGA. SERGE ns vn cdesdeshnesscenss aunts eee

30 U.S.C. §1253 (SMCRA §503] ... 2.2... cece eee

30 U.S.C. $1272 [SMICRA GBR)... wc cnscwsseveccs 3

310 Ind. Adm. Code §12-2-2 et seg. .............0 ce ee

Ais. Codie SOBER «. «xcs ctncecsiicxsceveaeeneeeeee

Alaska Statubes GE0.E1.200... o.. +6050. cceeiepebeeaeen

Art. Station GP GGN 60 bb sc icccccasseccdueanaeen

a

Colo. Surface Biiniag Baie 7... 6.0. ose cnntsdenmesmein

Th. Acts SOG Be. WER e es sk on cncscvcccsmesncueeen

Ind. Code §13-4.1-14-1 ef seg. 2.2... cc cccccncccsccecs 1,

lown Code SO-GB.S oo. .nccncdccscscnsoneemeeneeee

Kan. Mine Land Conservation and Reclamation Rules,

Rute FEB.EE ...cccccannudetses taken 8

omMmomMmwwemwmwOo = Oo ow

405 Ky. Administrative Regulations 24: 020 ...........

La. Rev. Stat. $B0-O-GB . ... ..00000000008 68 une 8

Ne &

eS) ee s

Ten cic ck seus eeeseraves ‘

I cnc anos cedesecscescssvecsees x

eas cess suse causecascosasst x

Ig occ akc ancnssvessesce Paetntcs .

Pe IP BOD, ceca seve ccscesescess s

SN OTs sv ncn s ccc cn sis cnscencncces ~

I I oc ka ccs cusbeccccesssseces .

eS rere eee emaiacaeks ‘

IE UID so accesses cansenscsens x

400 Rules of Tenn. Dept. of Conservation, Div. of Surface

ee aa cbha Vase c ur eene cede neces .

pe AN. ‘

ec cs cpa scans eveccoesesece .

ES kc kek deews ts vse ecsces ee 8

Neen ee Liha Sab ce sewseesses ‘

eke oka cane se ess nateenees .

4 vii

>.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA

Petitioners respectfully pray that a Writ of Certiorari issue

to review the judgment and opinion of the Supreme Court of

Indiana, entered in the above-entitled proceeding on August

31, 1989.

OPINIONS BELOW

The opinion of the Supreme Court of Indiana (542 N.E.2d

1000), the decision of the Dubois Circuit Court, and the Find-

ings and Order of the Director of the DNR are reprinted in the

Appendix (“App.”) hereto, at Al, Al5, and A34, respectively.

JURISDICTION

The judgment of the Court below was entered at 10:00 a.m.,

August 31, 1989. This Court has jurisdiction pursuant to 28

U.S.C. § 1257(a) to review the judgment below by Writ of

Certiorari. The time for filing this petition for Writ of Cer-

tiorari, originally due November 29, 1989 pursuant to 28

U.S.C. §2101(c), has been extended (Application No. A406,

granted November 29, 1989) to and including December 29,

1989.

CONSTITUTIONAL PROVISIONS, STATUTES AND

ADMINISTRATIVE REGULATIONS INVOLVED

U.S. CONST. amends. V and XIV, Ind. Code § 13-4.1-14-1, ef

seq., and 310 IAC §§ 12-2-2 et seq. are set forth in the Appendix

hereto at pp. A57, A58, A60, and A64, respectively.

STATEMENT OF CASE

DNR Order — Condition to Removal of Land Use

Restriction. The Archaeologists petitioned the Indiana DNR

to prohibit the land use of surface coal mining on a portion of

HUMERYSs 300 acre farm pursuant to the Indiana version of

Section 522 of federal SMCRA, (Ind. Code § 13-4.1-14-2, 4 and

30 U.S.C, § 1272) [App. A61] based on a portion of the acreaze

containing unrecovered archaeologic matter. After an

adjudicatory hearing, on January 3, 1986, the DNR issued a

final order designating the archaeologic site |[Beehunter Site]

as unsuitable for surface coal mining based on the presence of

important archaeologic matter under the plow zone, but

providing that the land use restriction “will terminate if” [| App.

A46j ay archaeologic exploration, excavation, dig, analysis,

writing and a published report were accomplished pursuant to

detailed requirements set forth in an accompanying “Mitiga-

tion Plan” by archaeologists to be approved by the State and

subject to State inspections and sanctions to enforce the plan.

|App. A47, A50|. The DNR Order made no provision for pay-

ment of the archaeologists, compensation to HUMER for the

use and excavation of the land, including ingress and egress, or

for damage to the land caused by the excavation.

Trial Court Remand Regarding HUMER Mitigation

Plan. The DNR Order was appealed to the Dubois Circuit

Court where the DNR findings concerning the Beehunter Site

containing important archaeologic data were affirmed, but

reversed the order based on the Fifth and Fourteenth Amend-

ment objections, remanding the matter to the DNR for further

consideration of HUMER’s Mitigation Plan |[App. A26, A33].

HUMER*‘ Mitigation Plan | App. A52-A56, R. 351-358] differed

from the DNR Order largely in that HUMER would not be

required to pay the Archaeologists (approximately $50,000)

and further HUMER would be compensated for any damage

caused by the excavation of the land, while HUMER offered to

forego compensation for loss of use of the Site, as well as for loss

of use with respect to ingress and egress.

The trial court, based largely upon Nollan v. California

Coastal Commission, 483 U.S. 825 (1987) (finding a condi-

tionally required conveyance of an easement for the removal of

a land use restriction as violating the Takings Clause),? rea-

* The federal taking question was raised by Petitioners in their opening brief

before the Dubois Circuit Court, filed August 11, 1986, and before the

Supreme Court of Indiana in the appellate briefs. The Dubois Circuit Court

decided the federal takings question in favor of Petitioners [A15] but was

reversed by the Indiana Supreme Court, App. at Al.

soned that the condition (an archaeologic exploration, excava-

tion and study), if attempted directly by the State, would

constitute a per se take; that the State interest being advanced

was acquisition of the knowledge with preservation being but a

prelude to acquisition, since, without exploration and excava-

tion, the Site nas no informational value; and that acquiring the

knowledge, while a sufficient public purpose to support con-

demnation, without compensation, was an illegitimate State

interest pursuant to Nollan. | Findings 49-52; Conclusions 7-11;

App. A25-A26; A28-A30]. Hence, the trial court reversed the

DNR Order remanding the case for further consideration of

HUMERS Mitigation Plan.

Facts. The salient facts and conclusions are largely uncon-

tested. The Beehunter Site presents the opportunity to

develop and obtain important historic and cultural “know!-

edge.” However, archaeologic matter is below the surface and

inaccessible. Unless excavated and analyzed at some point, the

Site has no informational value. [Finding 50; App. A25-A26).

Preservation alone yields no knowledge. This “knowledge” can

be gained only by entry, ingress and egress, excavation and

destruction of the Site through an archaeologic exploration

with the application of $50,000 of archaeologic services, includ-

ing excavating and digging the Site, sifting, recordation, analy-

sis and a published report. During the archaeologic excavation,

the Site has no other possible use, including farming. Subse-

quent to the archaeologic excavation, the Site has no archae-

ologic value and unless properly reclaimed (and no provision for

reclamation is made in the DNR mitigation plan) will result in

permanent damage to the land. The costs set forth above do not

include the reclamation cost. {Findings 9, 20-53; App. A17,

A20-A26. |

The Archaeologists presented testimony that the major

problem to the development of archaeologic knowledge is

destruction of a site before archaeologic excavation can be

accomplished. The major problems for the accomplishment of

an archaeologic excavation and dig are accessibility and fund-

ing. The development of archaeologic information is a not-for-

profit activity and funds come only from government sources or

vrants. |R. 1806-1811]. There is-no economic justification for a

landowner to accomplish such. [Finding 49; Conclusion 17;

App. A25, A31). The concept of preservation as applied to an

archaeologic site is “mothballing” the site for future study. [R.

S59].

Surface coal mining before an archaeologic exploration will

destroy the opportunity for exploration and knowledge. After

an archaeologic exploration, with attendant removal of archae-

ologic matter from the Site, surface mining would have no

adverse effect. An archaeologic excavation will permanently

damage the land for farming, unless the land is properly

reclaimed.

The Beehunter Site has been for some time part of the

HUMER family farm comprising in excess of 300 acres. The

coal underneath the Site is approximately 6% of the coal under

the entire farm. By surface mining, removal of 100% of the coal

——wmarbe achieved. If surface mining cannot be accomplished, and

underground or auger mining is possible, approximately 40% of

the coal under the Site would be lost. | App. A6-A7; Finding 38;

App. A23-A24] At the time of the Archaeologists’ Petition,

there was pending before the DNR an application for a permit

to conduct surface coal mining on the farm. | App. A25; Finding

17}.

Indiana Supreme Court Decision. The Indiana Supreme

Court reversed the trial court, ordering reinstatement of the

DNR Order, and finding no violation of the Fifth and Four-

teenth Amendments. The Indiana court had two alternate

rationales for finding that Nollan did not require that the

condition to the removal of the land use restriction as presented

by the DNR Order was unconstitutional.*

' The Indiana Court in the first part of the opinion undertook an economic

impact analysis as to the effect of the land use restriction which, under

Nollan is not necessary to finding an unconstitutional taking as to a state's

conditioning the removal of a land use restriction on a landowner's accession

to an otherwise per se taking.

———r—<its—

The Indiana court held that No/lan was applicable only

where the condition required an actual cor veyance of property

[App. Al0] and that the DNR Order was not “requiring any

conveyance.” {| App. Al0, All. Further, the court reasoned that

HUMER was “free to continue the present use of farming” and

was “required to do nothing.” | App. All]. The Indiana court did

recognize that had the State made an “outright demand for

access . . . to conduct an archaeologic dig by State employed

archaeologists,” such would have been a taking as held in State

Highway Commission v. Ziliak, 428 N.E.2d 275 (Ind. App.

1981) [App. All].4 However, the Indiana court concluded that

here, the State was “not seeking to physically occupy the land.”

The State purpose was described by the Indiana court as “only

attempting to preserve the information at Beehunter wif// any

qualified archaeologist can recover it.” |App. Al0, All, empha-

sis added.} Hence, as opposed to a conditional per se take, the

DNR Order was held to be “mere regulation.”

Insofar as Nollan might require a heightened level of scru-

tiny as to the ends, means and nexus where a State creates a

condition to the removal of the land use restriction, the Indiana

court found that this Court in Nollan “did not adopt any

particular level of scrutiny to be applied across the board to all

takings... .” and whatever the heightened scrutiny this Court

required, “it clearly extends only to. .. where the government

requires an actual conveyance of property as a condition to

removal of a land use restriction.” | App. A10}.

As an alternate basis for its holding, the Indiana court

attempted [App. All] to bring the DNR Order within the

confines of Nollan’s statement that a State might require a

“concession of property rights” in a condition to the removal of

the use restriction which “serves the same end” or the “same

government purpose” as the land use restriction, 4% U.S. at

4 In State Highway Commission v. ZiTiak, 428 N.E.2d 275 (nd. App. 191)

the Court held that the State could only conduct an archaeologic exploration

and dig pursuant to condemnation power with compensation and that other-

wise it was an unconstitutional taking.

S36. The Indiana court then held that, even viewing the DNR

Order as requiring the concession of a property interest as a

condition to the removal of a land use restriction, the DNR

Order complied with No//av’s statement since “the purpose of

ithe condition] .. . is consistent with the legitimate govern-

ment interest served by the prohibition itself: preservation of

areas culturally significant to our heritage.” | App. All, empha-

sis added|. Apparently, the Indiana court deemed that the

“ends” of the condition and the land use restriction need not be

the same, but only “consistent with” each other.

REASONS FOR GRANTING THE WRIT

I. Summary ;

Contravention of Nollan. The Indiana Supreme Court

acknowledged that had Indiana made an outright demand for

entry and exploration, excavation, recovery and scientific anal-

ysis of an archaeologic site on HUMER’s land with State

employed archaeologists without compensation, this would

constitute a per se take. This Court’s decisions require no less.

However, the Indiana court found that the State could

achieve the same result, and more, without violating the Tak-

ings Clause through a condition to the removal of a land use

restriction on the Beehunter Site which requires HUMER,

without compensation, to allow and arrange for archaeologic

excavation and study by State approved archaeologists, sub-

ject to State inspection, and without any provision for payment

of the State approved archaeologists.

The Indiana court approved this “out-and-out plan of extor-

tion” only by thoroughly emasculating Nollan v. California

Coastal Commission, 483 U.S. 825 (1987). Specifically, the

Indiana court violated Nollan, by: (1) holding that the land-

owner's option under the condition to continue the status quo

use and avoid an otherwise per se take serves to insulate the

State’s action from taking scrutiny; (2) equating the heightened

scrutiny standard required by Nollan with a rational basis

~

test; (3) holding, in the alternative, that No//an’s heightened

scrutiny is limited to where an “actual conveyance of property”

is required as a condition to the removal of a land use

restriction; (4) dispensing the State from No//av's requirement

that the condition serve the “same end,” the “same government

purpose” as that sought by the restriction, by requiring mere!

that the condition be “consistent with” the end sought by the

restriction; and (5) confusing valid public uses/ purposes suffi-

cient to support condemnation with “legitimate State inter-

ests” under Nollan.

The “historic knowledge.” available only by and after entry,

exploration, and excavation of Beehunter undoubtedly

enhances the general welfare and is undisputedly a proper

public purpose or use to sustain eminent domain. However, this

public purpose is not a “legitimate State interest” to support

uncompensated appropriation in the takings and land use con-

text. The burden of gaining such knowledge is one which in all

fairness, under the dictates of this Court's takings precedents,

must be borne by the public at large, not individual land

owners. Indeed, any other result would obviate the very need

for eminent domain power by giving constitutional! warrant to a

form of “de facto condemnation” without compensation.

National Import of Decision. The national! impact of the

Indiana court’s decision is beyond question. Indiana's version of

the “areas unsuitable” provisions of SMCRA, and attendant

administrative regulations, as applied? to HUMER and the

Beehunter Site, are but one of 27 similar statutory and reg-

ulatory schemes passed by states desirous of obtaining

5Unlike Hodel v. Indiana, 452 U.S. 314 (1981), this case does not present a

facial challenge to any provision of the federal or Indiana SMCRA. As the

Indiana court recognized, | App. AX] Petitioners challenge action of the DNR

in designating the Beehunter Site as an area unsuitable for surface mininy as

applied to HUMER and the Beehunter Site.

exclusive jurisdiction over these matters.® If permitted to

stand, the judgment below will serve as precedent for similar

conditions to the removal of land use restrictions as to archae-

ologic sites in 26 other states. The facts at bar can be replicated

in thousands, if not hundreds of thousands, of instances in

these states. Further, the Indiana court's rationale is, of

course, not limited to conditions to removal of coal-related land

use restrictions. A myriad of conditional land use restrictions

can now be used to shift the state burden for archaeologic

research and excavation onto private landowners.

Il. Judgment Below Contravenes Nollan

A. Takings Analysis and Standards of Scrutiny for Condi-

tional Takings to Removal of Land Use Restrictions.

This Court has established the takings analysis applicable

where a state conditions the removal of a land use restriction on

an owner's accession to a physical intrusion amounting to a per

se taking. Nollan (finding a permit to build conditioned on

uncompensated grant of an easement contrary to the Takings

Clause). The conditional nature of the scheme, through a land-

owner's option to continue present use and avoid the condition,

does not protect the scheme from violating the Takings

‘In order to obtain jurisdiction pursuant to SMCRA § 503, 30 U.S.C. §

1253, states must enact legislation similar to federal SMCRA. The following

are state counterparts to federal SMCRA, § 522, codified at 30 U.S.C. § 1272:

Ala. Code § 9-16-96, Alaska Statutes § 27.21.260, Ark. Statutes § 52-9-26,

Colo. Surface Mining Rule 7, Ill. Acts § 96%. © 7907.02, Ind. Code § 13-4. 1-14-1

et seq., lowa Code § 5-83.8, Kan. Mine Land Conservation and Reclamation

Rules, Rule 762.11, 405 Ky. Administrative Regulations 24: 020, La. Rev.

Stat. §30-9-22, Md. Nat. Res. Code § 7-505.1, Mich. Comp. Laws § 425.2001,

Miss. Code § 53-9-71, Mo. Stat. § 23.444.890, Mont. Code § 82-4-228, N.M.

Stat. § 69-25 A26, N.D. Cent. Code § 38-14.1-05, Ohio Rev. Code § 1513.073,

Ok. La. Stat. § 45-8B-781, Pa. Stat. § 52.6.1396.4.5, S.D. Code Laws §

45-6B-33, 400 Rules of Tenn. Dept. of Conservation, Div. of Surface Mining, $

1-9-.06, Tex. Rev. Stat. § 5920-11-33, Utah Code § 40-10-24, Va. Code §

45.1-252, W. Va. Code § 22A-3-22, and Wyo. Stat. § 35-11-425.

Clause.‘ Where the condition involves an owner's accession to

an otherwise per se take, this Court requires a level of judicial

scrutiny higher than a “rational basis” tv determine whether

there is a “legitimate state interest” which the condition “sub-

stantially advances” and whether such interest is the “same” as

the purpose of the land use restriction.*

Further, this Court held that the field of “legitimate state

interests” is narrower than those valid public purposes or uses

* The Nollan Court held, “Had California simply required the Nollans to

make an easement across their beach front available to the public rather

than conditioning their permit to rebuild their house on their agreeing to do

so, we have no doubt there would have been a taking

Given, then, that requiring uncompensated conveyance of the easement

outright would violate the Fourteenth Amendment, the question becomes

whether requiring it to be conveyed as a condition for issuing a land-use

permit alters the outcome.” [483 U.S. at 831, 834]. The Court below correctly

acknowledges, as required by this Court’s precedents, that had the state

“demanded access” to Petitioner's property “outright,” a per se take would

exist, citing State Highway Commission v. Ziliak, 428 N.E.2d 275 Und

App. 1981). [App. All}.

* As to the “standards for determining what constitutes a ‘legitimate state

interest’ or what type of connection between the regulation and the state

interest satisfies the requirement that the former ‘substantialiy advance’ the

latter,” the Nol/an Court held that, “our opinions do not establish that these

standards are the same as those applied to due process or equal protection

claims. To the contrary, our verbal formulations in the takings field have

generally been quite different. We have required that the regulation ‘sub

stantially advance’ the ‘legitimate state interest’ sought to be

achieved .. . not that the State ‘could rationally have decided’ the measure

adopted might achieve the State's objective. . . . [There is no reason to be

lieve . . . that so long as the regulation of property is at issue the standards

for takings challenges, due process challenges and equa! protection cha!

lenges are identical; any more than there is any reason to believe that so long

as the regulation of speech is at issue, the standards for due process cha!

lenges, equal protection challenges, and First Amendment challenges are

identical.” [483 U.S. at 834-35, and n. 3]. [Citations omitted, emphasis

added}.

10

within the scope of the police or takings power.* A conditional

physical intrusion to the removal of a land use restriction

implicates the State’s scheme as being for the tacit purpose of

avoiding the compensation requirement.'” In one manner or

another, the Indiana Supreme Court managed to vitiate each of

these holdings.

B. Indiana Supreme Court Rules Contrary to Nollan that

the Conditional Nature of DNR Order Avoids the Tak-

ing.

The archaeologic exploration and excavation required as a

condition to removal of the land use restriction, if accomplished

directly by the State with “State employed archaeologists,”

admitted the Indiana Supreme Court, would have been a

take.!! Indeed, this Court’s decisions require no less, in view of

* This Court held: “Whatever may be the outer limits of ‘legitimate state

interests’ in the takings and land use context, this |obtaining an easement to

serve some valid governmental purpose, but without payment of compensa-

tion} is not one of them.” |483 U.S. at 837]. This Court has found valid “public

uses” for takings purposes to be coterminous with the broad scope of a-state’s

police powers. Keystone Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 491 n.20

(1987)

“The No/lan Court held: “We are inclined to be particularly careful about

the adjective [“swbstantial advancement”| where the actual conveyance of

property is made a condition to the lifting of a land use restriction, since in

that context there is heightened risk that the purpose is avoidance of the

compensation requirement, rather than the stated police power objective.”

[483 U.S. at 841).

'! The Indiana court held: “The extent of the intrusion here does not rise to

the level of that in Ziliak where the State made an outright demand for

access to the owner's land to conduct an archaeological dig by state-employed

archaeologists.” | App. All, emphasis added]. To the extent that the Indiana

Supreme Court attempted to articulate a constitutional difference between

appropriation by “State-employed archaeologists” and private archae-

ologists, such is contrary to the dictates of Loretto v. Teleprompter Manhat-

tan CATV Corp., 458 U.S. 419 (1982). A physical intrusion sponsored by the

State “is a taking without regard to whether the State, or . . . party autho-

rized by the State, is the occupant.” Loretto, 458 U.S. at 432, n. 9. Further-

more, the Indiana court at this point totally ignored that the DNR's

Mitigation Plan requires State approval of the archaeologist, as well as State

inspections and enforcement of the archaeologic dig. [App. All; A47, A50}.

1]

the myriad of property interests invaded, used, acquired, or

damaged by compliance with the State's mitigation plan.'? Yet,

in direct conflict with Nollan the Indiana Supreme Court found

that the DNR order conditioning removal of the land use

restriction_was not a taking, but “mere regulation,” because

“HUMER is required to do nothing and it is free to continue

the present use of farming the land in question.”"' | App. Al0-

All]. In effect, the Indiana court held that the conditional!

nature of an otherwise per se take is sufficient to protect the

condition against a takings challenge.

2 It is undisputed that compliance with the Director's mitigation pla

affirmatively requires HUMER to permit an extensive physical intrusior

its land by archaeologists, including: (1) entry (above and below the surface

with exploration and excavation of the Site through and below the plow zone

(2) Total use of the Beehunter Site to the exclusion even of HUMER

ingress and egress routes to Beehunter: (4) use of any artifacts; (5) |

nent damage to the land for farming; (6) loss of $50,000 to underwrite the

excavation and study of Beehunter; and (7) public use of and benefit from

archaeologic work product in a published report for which HUMER will have

paid. Invasions far less extreme or extensive than the total upheaval and

digging into, through and below the plow zone throughout six acres, hav

erma

resulted in takings under this Court’s decisions. Loretto ¢ Teleprom pt

Manhattan CATV Corporation, 458 U.S. 419 (1982) | placement of small cable

television installation without compensztion was a take); No//aw, supra

(government-enforced permanent third-party use of an easement): Aarse,

Aetna v. United States, 444 U.S. 164 (1979) (government enforced permanent

third-party use where a usufructory interest was found sufficient as the basis

of a compensable taking); Hodel v. Irving, 481 U.S. 704 (1987) (destruction of

expectancy by inheritance sufficient to constitute a taking); and First Eng

lish Church v. County of Los Angeles, 482 U.S. 304 (1987) (temporary takings

differ only in degree, not in kind, from permanent takings and the duration

goes to the amount of compensation required and not to the requirement

itself). See also United States v. Dow, 357 U.S. 17, 26 (1958); United States :

General Motors Corp., 323 U.S. 373 (1945).

3 The Indiana Supreme Court held: “The extent of the intrusion here does

not rise to the level of that in Ziliak where the State made an outright

demand for access to the owner's land to conduct an archaeological dig by

state-employed archaeologists. Ziliak, 428 N.E.2d 275. Here, the State is

not seeking to physically occupy the land nor requiring any conveyance, it is

only attempting to preserve the information at Beehunter until any qualified

(footnote continued)

12

Nollan establishes that the conditional nature of such a

scheme, by which HUMER can avoid the condition (the

archaeologic dig with State approved archaeologists and State

inspection rights), by continuing the status quo use of the land,

does not protect the condition against the Takings Clause. Yet,

the Indiana court expressly based its holding on HUMER'’s

ability to avoid the condition and continue to farm the land.

Such is directly contrary to Nollan.™

HUMER has no more “choice” than did the Nollans.

HUMER ean forgo use of the Beehunter Site for surface min-

ing and avoid the archaeologic exploration and excavation, just

as the Nollans could have avoided granting the easement by not

tearing down their old vacation house and building a new,

Footnote 13 continued

archaeologists can recover it. As noted above, the intrusion here is minimal

from an economic standpoint and amounts to mere regulation.” |App. A10-

All (emphasis added)]|. To the extent that the Indiana court meant that

“nothing is required” of HUMER in the sense that the mitigation plan is

directed only toany owner of Beehunter and not HUMER specifically, this is

a distinction without any basis. HU MER is the present owner of the land and

it is clear — though ignored by the Indiana court — that HUMER'’s coal

cannot be surface mined by HUMER or anyone else unless HUMER allows

entry, ingress and egress, excavation and damage to the real estate as well as

arranging for or directly financing the archaeologists. Indeed, this case

highlights the unilateral character of the government's “claim of entitle-

ment.” Cf, Nollan, 483 U.S. at 833 n.2. Even the Indiana court, in its more

candid moments, recognizes that the Director's mitigation plan “requires”

HUMER to refrain from surface mining coal in a small portion of its property

“until important cultural information can be recovered.” |App. at Al3

(emphasis added)].

“The holding of the Indiana Supreme Court also violates Loretto, where,

in support of the government enforced occupation of premises by cable

television operators, it was asserted that the property owners were “not

required” to submit to the State's sponsored physical occupation by the

operator since the invasion was “use-dependent” and occurred only to the

extent that the property owner chose to use the property as residential rental

units. This Court rejected the argument, noting that a “landowner'’s ability to

rent his property may not be conditioned upon his forfeiting the right to

compensation for a physical occupation.” [458 U.S. at 439, n. 17, as cited in

Nollan, 483 U.S. at 837. ] ‘

13

permanent residence. However, to the extent that HUMER

modifies the status quo by surface mining its coal (as the

Nollans wished to do by building a new house), it is required to

execute the Director’s mitigation plan with the attendant

uncompensated physical invasion of its property by the archae-

ologists, the excavation and destruction of the Site, permanent

damage to the land, appropriation of artifacts, arrangement for

or direct payment of $50,000 for archaeologic services with an

analytic report which must be released to the public.

By viewing the condition to the removal of the land use

restriction as “requiring nothing” from HUMER, the Indiana

court was free to ignore the price for HUMER'’s being “free to

continue the present use of farming,” as well as being free to

ignore the exaction the State required for surface coal mining.

The Indiana Supreme Court never confronted the implications

of such a condition on the nature of the public purpose either of

the land use restriction or of the condition. Once the condition

is properly viewed as a conditional per se take, the State's

unspoken purpose — to acquire cultural and historic know]-

edge but without compensation to HUMER — becomes very

real, indeed, to the point of absolute certainty. The State most

clearly and succinctly “articulates” this purpose by its denial of

HUMERY’S mitigation plan.!°

C. Indiana Supreme Court Rejects Nollan’s Heightened

Scrutiny to Conditioning Removal of Land Use

Restriction on Consent to an Otherwise Per Se Take.

Again contrary to Nollan, in reviewing whether the statute

and DNR order substantially advanced a legitimate state inter-

6 The Director rejected HUMERS own proffered mitigation plan. | App.

A52 - A56}. The only material difference between the Directors’ mitigation

plan and that submitted by HUMER is that the latter specifically provides

that HUMER shall not be required to defray the cost (approximately

$50,000) of the archaeologic research (and any damages resulting therefrom)

resulting eventually in the publication of a written report memorializing the

desired archaeologic “knowledge” and that the State must pay for damage to

(footnote continued)

l4

est, the Indiana court applied but a rational basis level of

scrutiny. The Indiana court held that Nol/an “did not adopt any

particular level of scrutiny to be applied across the board to all

takings inquiries . . .” and, alternatively, that whatever level of

scrutiny Nollan did require, “clearly extends only

to... Where... an actual conveyance of property [is] a con-

dition to removal of a land use restriction.” [App. A10]."°

While No//an recognized that this Court had not “elaborated

onthe standards for determining” a legitimate State interest or

the “type of connection” needed to satisfy the nexus require-

ment that the land use restriction and the condition “substan-

tially advance” a legitimate State interest, it clearly held that

“these standards” are “of that the State ‘could rationally have

decided’ the measure adopted might achieve the State's objec-

Footnote 15 cor tinned

HUMERS land. The Director's rejection of this plan, by which HUMER

would voluntarily have opened its property to the archaeologists, provided

only that they obtain their own funding, belies the state's intent as being

restricted to mere acquisition of archaeologic “knowledge” and “informa-

tion.” Rather, the rejection of the HUMER plan demonstrates the state's

intent to be that not only must the land owner allow free use and invasion of

his premises, and appropriation of real and personal property, but that

HUMER, and not the state, be required to pay the archaeologists for the

privilege of permitting this intrusion.

“\ While rejecting the applicability of No//an’s required heightened seru-

tiny to the case at bar, the Indiana court engages in a “word game,” implying

that the level of scrutiny required by Indiana case law is the same as that

required in Nollan. The Indiana court equated the “substantial relation”

standard, enunciated in its previous opinion in Young v. City of Franklin, 494

N.E.2d 316 (Ind. 1986), with the “substantial advancement” standard in

Nollan. |App. A9| . Of course, if the latter is true, then why would the

Indiana court explicitly reject Nollan’s heightened scrutiny as applicable to

the case at bar? The answer is that the Indiana court simply did not realize

that there is more to this issue than the pure linguistic meaning of the terms

used. The real issue is whether more than a rational basis level of judicial

review is required. The origins of Young, supra, at 318, reveal that the

Indiana language is indicative of nothing more than a rational basis level of

judicial review. See, us cited in Young, supra, Chico Corp. v. Delaware-

Muncie Board of Zoning Appeals, 466 N.E.2d 472 (Ind. App. 1984).

ts)

tive.” [483 U.S. at 833-34 and n. 3 (emphasis added)|.'*" While

this Court left open the issue whether the standards would be

those applicable to suspect classes under equal protection anal

ysis or the regulation of speech, the rational basis level of

scrutiny was expressly rejected. '*

There is no basis either in fact, law or logic for limiting the

heightened scrutiny required by Nollan solely to situations

where a condition to the removal of a land use restriction

requires an actual conveyance of property. It makes no sense to

apply a heightened standard of scrutiny to one category of

physical intrusions or per se takes but not to other types of pe

17 Where a condition to removal of a land use restriction requires “consent

to a per se take, Nollan requires a three-tiered analysis to determine the

takings issue under some level of scrutiny beyond a rational basis. As to the

land use regulation, first the nature of the asserted government purpose must

be examined to determine if the “end” is a legitimate State interest. Second,

the means/end nexus analysis must-be made. In No//an, the Court did not

reach this first tier of the analysis since the Court assumed “without decid

ing” that the asserted purpose of the land use regulation was a permissible

purpose, 483 U.S. at 835-36 (“so long as the Commissioner could have exe!

cised its police power (as we have assumed it could). )" [483 U.S. at 836). Then,

the same analysis must be made as to the condition for the removal of the land

use regulation. Finally, an analysis must be made of whether the Stat

interest advanced by the condition is the “same” as the State interest

advanced by the land use regulation. Obviously, if the same analysis, at the

same level of scrutiny, is not applicable to both the land use regulation and the

condition, a State could involve an illegitimate interest in the land use

regulation as acquisition of property but without compensation so that the

analysis with respect to the State interest and nexus for the condition would

be a foregone conclusion.

18 Application of a heightened standard of scrutiny to the means end nexus

in the case of state sponsored physical appropriation, but not to the asserted

state interest itself, would be contrary not only to the dictates of logic but aiso

to this Court's use of heightened scrutiny standards in other constitutional!

contexts. See Palmore v. Sidoti, 466 U.S. 429 (1984) (requiring, in a suspect

class case, a “compelling” state interest advanced by “necessary” means).

Indeed, in Penn Central v. New York, 438 U.S. 104, 127 (1978), the Court

required that the state's asserted interest be “substantial” in the takings and

land use context.

16

se takes involved in a condition to the removal of a land use

restriction.

The Indiana court’s rejection of Nollan’s required height-

ened scrutiny beyond the rational basis test is pervasive and

leads to the Indiana court’s widening Nollan’s required nexus

of the condition and the land use restriction, as well as to

inconsisteit statements concerning their ends, means and

nexus.

D). Indiana Court Widens and Loosens Nollan’s “Same

Ends” Nexus Requirement

In apparent recognition of the weak basis on which it

restricted Nollan’s applicability, the Indiana court then as an

alternate basis for its holding attempts [App. A11] to fit the

DNR Order within the narrow confines of Nollan’s statement

that a State might require “a concession of property rights” as a

condition to the removal of a land use restriction if the condition

“serves the same end” or “serves the same governmental pur-

pose” as the land use restriction [483 U.S. at 436 - 437]. How-

ever, even as it attempts to create harmony with Nollan, the

Indiana court, again directly contradicts Nollan by expanding

the narrow confines of Nollan’s statement concerning a conces-

sion of property rights to be exacted from a landowner pur-

suant to a condition-based land use scheme. The Indiana court

expands and loosens Nollan’s nexus requirement of the “same”

ends, to — a concession is permissible where the condition is

only “consistent with [the] legitimate government interest”

advanced by the land use restriction. [App. All].

Effect — Rejection of “Same Ends”. Having changed the

Nollan requirement that the government purpose/end for the

land use restriction and for the condition be “the same,” the

Indiana court avoids comparing the government purpose of the

condition (acquisition of historic knowledge) with one of its

several but differing statements" of the purpose of the land use

restriction (“preservation of areas culturally significant to our

heritage”) [App. All, emphasis added]. Obviously, the condi-

tion’s purpose is not “preservation of areas.”

The government purpose of the condition is different,

indeed, significantly different, from “preservation” of the

Beehunter Site. By the Mitigation Plan, the Beehunter Site

will not be preserved, but rather excavated with a total

upheaval of the land far below the plow line throughout the six

acres leaving the area without archaeologic value through

acquisition of the historic knowledge. This is not preservation.

This is aequisition of knowledge.

Of course, under Nollan this difference between the ends

implicates that the purpose of the land use restriction is not

preservation, but acquisition of knowledge without compensa-

tion. The State’s purpose of avoiding the compensation require-

ment is further highlighted by its rejection of HUMER’s

mitigation plan.?°

Effect — Rejection of Heightened Scrutiny. The loosening

and widening of Nollan’s “same ends” nexus requirement

avoids the same result which the Indiana court avoids by

1 One may look in vain throughout the opinion of the Indiana court for a

consistent articulation of the government “end” served by the restriction and

by the condition. Initially, the Court posits the State's interest as: “| p|rotect

ing our national and State heritage through the preservation of archae

ological sites. .. The general welfare of the public is greatly enhanced by such

[historic and pre-historic| knowledge.” | App. AS, emphasis added]. At other

points of its opinion, however, the Indiana court variously sets forth the

State's purpose/end as being: “preservation |of| important historic, cultural

and natural aspects of our national heritage...” | App. AX}; “protecting cul

tural resources” until “the information in the site is scientifically recovered.”

{App. A9] ; “preservation” “until any qualified archaeologists can recover

(the information at Beehunter}.” | App. All, emphasis added |; “preservation”

of areas “culturally significant to our heritage” | App. All}; and prevention of

surface mining “until important cultural information can be recovered.”|

{App. Al2, emphasis added].

» See supra note 15.

18

rejecting Nollan’s required judicial scrutiny beyond a rational

basis (i.e. uncompensated acquisition of knowledge) for review-

ing the ends, means and nexus for both the land use restriction

and the condition. Even when the Indiana court examined the

State interest being advanced by application of the statute to

an archaeologic site, it all but concluded that acquisition of

“such knowledge” was the government purpose for the iand use

restriction. The Indiana Supreme Court articulated the pur-

pose of the land use regulation applied to the archaeologic site

as being the enhancement of the “general welfare” by the

historic and pre-historic “knowledge” (gainable not through

mere preservation of the Beehunter Site, but through acquisi-

tion, use, excavation, indeed destruction of the Site). [App.

Ax}.

This statement of the public purpose is wholly proper, indeed

unassailable. What the Indiana court failed to articulate in

arriving at this conclusion due to its concomitant failure to

exercise Nollan’s required level of judicial scrutiny, was the

uncontested fact that a raw, inaccessible archaeologic site

which has not been scientifically recovered, presents but the

opportunity for “knowledge” of history and that “such knowl-

edge” comes into existence only through an archaeologic

excavation, dig and “scientific” study. Implicit is the obvious

conclusion that preservation is the means to the end of aequir-

ing knowledge.*!

“! The facts concerning the nature of the State interest as to a raw,

unrecovered, inaccessible archaeologic site lying below the plow zone do not

appear on the face of the statute. Presumably, the necessary background and

facts can be demonstrated by the application of the statute and order, just as a

similar inquiry must be made in assessing the “true nature” of a statute

juxtaposed with an asserted or stated purpose. Keystone Coal Association,

480 U.S. at 487 n. 16 (“Pennsylvania Coal instructs courts to examine the

operative provisions of a statute, not just its stated purpose, in assessing its

true nature.”) In the area of equal protection, and suspect classification, this

Court recognizes “the mere recitation of a benign, compensatory purpose is

not an automatic shield which protects against any inquiry into the actual

purposes underlying a statutory scheme.” Weinberger v. Wiesenfeld, 420

(footnote continued)

_—— —ee——Ee Oe on i

19

Pure preservation for an undeveloped archaeologic site as an

end simply cannot withstand a level of judicial scrutiny beyond

a rational basis. Pure preservation is belied not only by the

uncontested facts but by the mere presence of the condition and

mitigation plan in the DNR Order, which are contrary to and

which reject pure preservation as an end.

While the Indiana court all but stated preservation as a

means to acquiring knowledge in articulating the purpose of

the land use regulation, it quite clearly recognized the neces-

sity for acquisition where it held the State “is only attempting

to preserve the information at Beehunter wifi/ any qualified

[state approved] archaeologist can recover it [of course, subject

to State inspection],” |App. All, A47, A50, emphasis added] or

as it also recognized earlier, “the Mitigation Plan. . . allows a

means for removal of the designation once the information in

the site is scientifically recovered.” |App. AY, All, emphasis

added]. Here, again the Indiana court clearly and properly

states “preservation” “until,” is a means, not an end.

When the Indiana court attempted to fit within No//an, the

“end” (knowledge) had somehow changed to “pure” preserva-

tion. This was accomplished only by converting “preservation”

from a means to an “end.” Again, preservation of a raw

Footnote 21 continued

U.S. 636, 648 (1975). Of course, as this Court recognized in Nollan, the

inquiry is not limited toa rational basis analysis. See Frontiero vo Richard

son, 411 U.S. 677, 684 (1973) (noting that “legitimacy” in a state's interest ina

particular statute was not sufficient in face of a suspect classification and that

“this departure from ‘traditional’ rational-basis analysis with respect to sex

based classifications is clearly justified”).

2 The State and the Archaeologists probably led the Indiana court into

misstating the concept of “preservation” as being an end, contrary to it being

at best a means, through a desire to seek shelter within Penn Central « New

York, 438 U.S. 104 (1978). Penn Central is relied upon as support for the

proposition that the State has a “legitimate State interest” in “preservation”

of historic and cultural resources, but it is not controlling in the case at bar

New York's statutory scheme applied only to buildings, the mere existence of

(footnote continued)

20

archaeologic site, as an “end,” makes no sense whatsoever,

much less does it withstand Nollan’s heightened scrutiny.

Moreover, even accepting the Indiana court’s statement of

“pure preservation” as an end for the land use restriction, such

“end” is not the same as the end for the condition. Hence,

Nollan’s required nexus of the same ends for both the condition

and the land use restriction cannot be met,’ giving rise to the

inference that the purpose is acquisition of property but with-

out compensation.

E. Indiana Court Avoids Critical Issues — Whether the

Public Purpose is an Illegitimate State Interest —

Confuses A Proper Governmental Purpose As Being

Legitimate State Interest.

Even aside from, or maybe because of, these direct conflicts

with Nollan, the Indiana court’s takings analysis is fundamen-

Footnote 22 continued

which was the public purpose which required no physical intrusion or actual

use as in the case at bar with the raw “unrecovered” archaeologic site. The

preservation goal in Penn Central was a pure preservation goal and not the

means to another end as in the case at bar where preservation of a raw

unrecovered archaeologic site is but preservation until acquisition since the

goal of historic knowledge to enhance the general welfare is not possible

without physical intrusion, entry, use, and indeed destruction of the Site by

scientific “recovery.” Finally, appellants in Penn Central never contested the

legitimacy of the state interest presented by the New York statutory scheme.

2: The Indiana Court's loose and inconsistent approach to defining precisely

the end sought to be accomplished by the restriction and by the condition

stands in sharp contrast to this Court's careful parsing of the State's asserted

end in Nollan, (i.e., visual and psychological “access” to the California

coastline). In applying a heightened level of scrutiny to the asserted end, and

in requiring that the “same end” be advanced by both the asserted purpose

for the restriction and the condition thereto, this Court found where the

restriction was to alleviate a burden on vertical access to the coast from the

street in front of the Nollan’s property, and the required condition (a lateral

access easement) served only to improve the public's lateral access across the

beach, the “same” ends were not served. Hence, the State's condition-based

scheme was nothing more than an “out and out plan of extortion” inconsistent

with the Fifth Amendment. [483 U.S. at 837-38].

21

tally flawed in other respects. The Indiana court never

addressed what Nollan establishes as the critical inquiry with

respect to the statute and DNR order as applied to the

HUMER property — whether the public purpose in fact

extends sotto voce to acquisition and use of property for a

proper public use but to avoid the compensation requirement

— which, pursuant to Nol/an, is not a “legitimate State inter-

est” in the takings and land use context. No/l/an, 483 U.S. at

837.

No doubt, the Indiana court's erroneous view that the condi-

tional nature of the required archaeologic dig itself sufficed to

prevent a taking, and its judicial review being limited to a

rational basis test, blinded the Indiana court to the required

inquiry. However, an even more fundamental contravention of

this Court’s precedents is involved. The Indiana court, as a

conceptual matter, equated a “legitimate state interest” with a

valid public purpose or use. Nol/av of course is to the contrary.

No where on the face of the Indiana court’s opinion is the

difference noted. Further, in discussing what is a “legitimate

State interest,” the Indiana court appears to equate such with

the full extent of the State's police power.*! Then, the Indiana

24 The Indiana court held in this regard: “There is no set rule to apply in

making the determination of what constitutes a legitimate state interest but

it is generally accepted that government has the power to enact laws and

regulations to promote order, safety, health, morals and the general welfare

of our society [i.e. the State's police power|. The decisions of this Court and

the Courts of Appeals have not dwelled on this aspect of the takings inquiry.

However those decisions implicity make clear that a broad range of govern-

ment interests satisfy the legitimacy requirement. Young, 494 N.B.2d 316

(upholding refusal to rezone land to residential class); Alanel Corp. v. Lndian-

polis Redevelopment Commission (1958), 239 Ind. 35, 14 N.B.2d 515

(upholding redevelopment acts dealing with acquisition of blighted urban

areas)...” {App. A8]. To be noted is the Indiana court's equating a “legiti-

mate State interest” with the scope of the police power. The court's confusion

is further highlighted by its citation to Ziliak, supra, another condemnation

case, for the proposition that “preservation of archaeologic sites” is a “legiti-

mate state interest” within the meaning of Nollan. | App. As].

22

court states that among the cases which “implicitly make[s]

clear that a broad range of governmental interests satisfy the

/Nollan] legitimacy requirement” is Alanel Corp. v. Indian-

apolis Redevelopment Commission, 154 N.E.2d 515 (1958).

Alanel is a case similar to Hawaii Housing Authority v. Mid-

kif, 467 U.S. 229 (1984), which did not involve a question of a

“legitimate State interest” in an alleged taking without com-

pensation context, but rather the question of the sufficiency of

public use to justify an exercise of the takings power by emi-

nent domain, with compensation.

While no doubt the “public use” requirement is coterminous

with the scope of a State’s police power-public purpose, Key-

stone, supra, ina Fifth Amendment unlawful takings without

compensation context, finding a proper public purpose/use is

but the beginning of the analysis. Legitimate state interests

are not coterminous with the scope of police power-public pur-

pose requirements. Nollan, 483 U.S. at 837. Even in a pure

land use regulatory context, “the nature of the government

purpose in the regulation is a critical factor in determining

whether a taking has occurred, and thus whether compensa-

tion is required.” Keystone Coa! Association, 480 U.S. at

488.*°

If the nature of the public purpose is “critical” in a pure land

use regulation situation, then in the case at bar, where the

State requires in a condition to the removal of a land use

regulation accession to an otherwise per se take, the nature of

the public purpose must be something more “critical” still.

Indeed, in the analysis of whether there is a legitimate State

interest, Nollan requires recognition that where accession to

an otherwise per se take is made a condition to the lifting of a

land use restriction, “there is heightened risk that the [un-

stated] purpose is avoidance of the compensation requirement

“Thus, the Court made clear that the mere existence of a public purpose

was insufficient to release the government from the compensation require-

ment ” Keystone Coal Association, 480 U.S. at 510 (Rehnquist, C. J.,

dissenting)

... [483 U.S. at 841]. Where this is so, the scheme is not

within the outer limits of “legitimate state interests” even

though the acquisition may serve a valid public purpose or use.

In summary, the Indiana court failed to differentiate a valid

public purpose to support an exercise of the police power from a

legitimate State interest in the takings and land use context.

Therefore, finding a public use/purpose, the Indiana court

ended its inquiry and never confronted the issue of whether the

land use restriction and the condition for its removal through

the application of the statute and the DNR order to the

HUMER property had a purpose of acquiring property, for a

valid public use, but without compensation, which is not within

the “outer limits of legitimate state interests.” Nollan, 483

U.S. at 837.

Ill. Conclusion

Certiorari should be granted to eliminate the Indiana court’s

conflicts with Nollan under SMCRA, a pervasive national

statutory scheme. Indiana’ tacit purpose of avoiding the com-

pensation requirement for acquisition of historic knowledge is

underscored by its denial of HUMER’s mitigation plan. The

necessity of public funding could not be more apparent. Allow-

ing the judgment below to stand would indeed reduce the Fifth

Amendment to “a pleading requirement,” which Nollan pro-

hibits, and allow de facto condemnation without compensation.

Respectfully submitted,

G. Daniel Kelley, Jr.’

Edward P. Steegmann

24

Of Counsel:

ICE MILLER DONADIO & RYAN

One American Square, Box 82001

Indianapolis, indiana 46282

(317) 236-2100

James W. Buthod

Counsel for Petitioners

BUTHOD & BUTHOD

1119 Lincoln Avenue,

P.O. Box 2298

Evansville, Indiana 47714

(812) 423-5261

December 22, 1989

*Counsel of Record

Appendix

APPENDIX

Judgment and Opinion of Supreme Court of Indiana.... Al

Findings and Conclusions of Dubois Circuit Court ..... Ald

Findings of Fact and Order of the Director of the Depart-

ment of Natural Resources....................00005. A34

Amended Offer Relative to Beehunter Site [|HUMER

ee ed ices accsscasccse d A52

ss cece ac acces sacecasescessue d A57

EE ccc cacaccsccctsscscsscsscce d A58

Ind. Code §13-4.1-14-1 et seg. Designation of Land

Unsuitable for Surface Coal Mining .............. A60

310 Ind. Adm. Code §12-2-2 et seg. Areas Unsuitable for

Lee rib Acca sacucesesawnsaaress A64

A-1

IN THE

SUPREME COURT OF INDIANA

DEPARTMENT OF NATURAL

RESOURCES

AND

WABASH VALLEY

ARCHAEOLOGICAL SOCIETY,

INC. and COUNCIL FOR THE

CONSERVATION OF INDIANA

ARCHAEOLOGY, INC.,

NO. 19S00-8802-C V-263

Appellants, Filed August 31, 1989

V.

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INDIANA COAL COUNCIL, )

INC. and HUNTINGBURG )

MACHINERY & EQUIPMENT )

RENTAL, INC. )

)

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Appellees.

APPEAL FROM THE DUBOIS CIRCUIT COURT

CAUSE NO. C-86-15

The Honorable Hugo C. Songer, Judge

DeBRULER, J.

This is an appeal from the Dubois Circuit Court and the

determination there that certain provisions of Indiana's version

of the Surface Mining Control and Reclamation Act

(“SMCRA”), I.C. 13-4.1-1-1, et seq., and regulations promul-

gated thereunder, 310 I.A.C. 12-2-1, et seq., as applied by the

Indiana Department of Natural Resources to land owned by

Huntingburg Machinery & Equipment Rental, Inc.

A-2

(“HUMER”) amounted to an unconstitutional taking under the

Fifth Amendment to the Constitution of the United States.

Under Appellate Rule 4(A)(&), this Court has exclusive juris-

dicffon to hear cases in which a statute has been declared

unconstitutional; and because of the important constitutional

issues involved, transfer is granted.

The land at issue, owned by HUMER, is currently being

farmed but sits atop three seams containing approximately

1.537 million tons of mineable coal. In a small, 6.57 acre portion

of the land, sitting on top of approximately 55,200 tons of coal,

lies what has become known as the Beehunter Site, an archae-

ologically significant area, rich in cultural deposits with sub-

stantial historic and scientific value. The Beehunter Site’s

importance stems from the fact that below the plow zone it

contains a substantially intact “midden,” with artifacts from

four distinct cultural periods of occupation, which would allow

anthropologists to make cross-cultural comparisons of differ-

ent adaptations to the same environmental niche. The site was

nominated and found eligible for listing on the National Regis-

ter of Historic Places. 51 Fed. Reg. 6677 (1986).

The Wabash Valley Archaeological Society, Inc. (“Wabash

Valley”) petitioned the Department of Natural Resources

(“DNR”) to have the site designated as an area unsuitable for

surface coal mining under I.C. 13-4.1-14-2. The director of

DNR may declare an area unsuitable for surface coal mining if

the coal mining operation will “affect fragile and historic lands

in which the operation could result in significant damage to

important historic, cultural, scientific, and esthetic values and

natural systems. .. .” I.C. 13-4.1-14-4. A public hearing was

heki and on November 19, 1985, pursuant to this provision and

Wabash Valley's petition, the director made an initial deter-

mination that Beehunter was an area unsuitable for surface

coal mining. By this time the Indiana Coal Council (“Coal

Council”) and the Council for the Conservation of Indiana

Archaeology (“CCIA”) had entered the proceedings. The Coal

Council and HUMER filed timely objections and a hearing was

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held on December 19, 1985, pursuant to I.C. 4-22-1-12

(repealed 1986). A final order was issued by the director of the

DNR on January 3, 1986 designating the Beehunter Site

unsuitable for surface coal mining.

As part of his final order, the director included a mitigation

plan which provided a means by which the designation of “area

unsuitable” could be removed. It calls for a program of site

testing and data recovery conducted by an archaeological con-

tractor approved by DNR. The plan does not require HUMER

to carry out the plan, to expend any money, or to convey any

property or property right to the State. It affects no existing

contractual rights. In fact, the designation does not prevent

HUMER from continuing to farm the land, nor from mining

virtually all of the coal under its farmland, so long as the coal

that lies underneath the 6.57 acre Beehunter Site is extracted

by means other than strip mining, a process which would

destroy the archaeological information contained in the site.

For these reasons, and those delineated below, we hold that the

director's order, designating the Beehunter Site as an area

unsuitable for surface coal mining and providing a mitigation

plan by which the designation may be removed, does not

amount to an unconstitutional taking of property.

The Fifth Amendment provides that “[no] private property

{shall] be taken for public use, without just compensation,”

and, of course, applies to the states through the Fourteenth

Amendment. This seemingly simple mandate has become

increasingly difficult to apply as the complexities of modern life

have necessitated a wide variety of land use regulations. More

than sixty years ago, Justice Holmes recognized that “|g Jover-

nment hardly could go on if to some extent values incident to

property could not be diminished without paying for every such

change in the general law,” Pennsylvania Coal Co. v. Mahon,

260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322, 325 (1922),

but also noted that “while property may be regulated to a

certain extent, if regulation goes too far it will be recognized as

a taking,” id., 260 U.S. at 415, 43 S.Ct. at 160, 67 L.Ed. at 326.

A-4

The difficulty has been in devising rules that establish a line

bet ween regulation that is permissible and that which “goes too

far.” Consequently, the determination often rests on “ad hoc

factual inquiries” involving the facts and circumstances of each

particular case. Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470, 508, 107 S.Ct. 1232, 1254, 94

L..Ed.2d 472, 502 (1987) (Rehnquist, C.J., dissenting), citing

Penn Central Transportation Co. v. City of New York, 438 U.S.

104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648 (1978).

However, we are not without guidance in this area. Recent

United States Supreme Court cases have provided a two-prong

test as an aid in making the determination. Under this rule,

when applied to a particular piece of property, a land use

regulation will not effect a taking if it substantially advances a

legitimate state interest and does not deprive an owner of

economically viable use of his property. Nollan v. California

Coastal Commission, 483 U.S. 825, 834, 107S.Ct. 3141, 3146,

97 L.Ed.2d 677, 687 (1987). Until recently, the inquiry gener-

ally focused on the second of the two prongs, attempting to

determine the economic impact of the regulation on the land.

See Keystone, 480 U.S. 470, 107S.Ct. 1232, 94 L.Ed. 472; Penn

Central, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631. In

Nollan, however, the Court emphasized the first prong in

striking down a condition placed upon the granting of a zoning

variance, finding that the condition did not substantially

advance the intcrests sought to be achieved by the regulation.

The two prongs are indicative of the various guises that a

constitutional attack on a land use regulation may take.

The essence of the first prong of the test is whether govern-

ment had the right to exercise its police power in the manner it

did, regardless of the burden to the property. Or, in other

words, it asks the question: has government regulated where it

should not have done so? If the regulation does not bear a

substantial relation to the legitimate ends sought to be

achieved, either through a failure of the statute as a whole to

serve those ends or as applied to a particular piece of property,

=

“ ” _

A-5

then the exercise of the police power is deemed to be unreason-

able. A variation of this type of challenge would exist where the

ends themselves were not legitimate. The state could not. for

example, regulate property simply because it does not agree

with the religious or political views of the land owner. See

Williamson Co. Regional Planning Commission vo Hamilton

Bank, 473 U.S. 172, 202 n.1, 105 S.Ct. 3108, 3125 n.1, 7

L.Ed.2d 126, 149 n.1 (1985) (Stevens, J., concurring).

The economic inquiry of the second prong of the test has its

roots in Justice Holmess decision in Pennsylvania Coal, 260

U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, which is generally

regarded as the seed from which all modern regulatory taking

cases have grown. In that case, a Pennsylvania statute requir-

ing that a certain amount of coal be left unmined so as to

prevent subsidence to the surface estate was struck down as

unconstitutional because it interfered with the distinct invest-

ment-backed expectations of the owners of the mineral estate

and did not provide compensation for the coal that was “taken.”

This consideration for distinct investment-backed expectations

remains essential today. Penn Central, 438 U.S. 121, 124, 98

S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648; Kaiser Aetna v. United

States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332,

343 (1979). It is also necessary to examine the economic impact

of the regulation on the claimant in terms of the diminution in

value of the land, id., and the extent of any interference with

the present use of the land, Penn Central, 438 U.S. at 136, 98

S.Ct. at 2665, 57 L.Ed.2d at 656. In determining the degree of

diminution in value, the particular segment that is affected is

not considered alone, but the claimant's property as a whole is

compared to that portion which is encumbered. Keystone, 480

U.S. at 497, 107 S.Ct. at 1248, 94 L. Ed.2d at 496. Of course, the

nature and character of the interference is also relevant; and

where a regulation results in permanent physical occupation of

property, a taking will almost invariably be found. /d., 480

U.S. at 488-489 n.18, 107 S.Ct. at 1244 n.18, 94 L. Ed.2d at 490

n.18; Loretto v. Teleprompter Manhattan CATV Corp., 45%

U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

A-6

All of the economic inquiries deal with the degree to which a

property has been encumbered by a regulation. In that sense,

the essence of the second prong of the test is whether govern-

ment has regulated to a greater extent than it should have so

that a land owner has been effectively deprived of productive

use of his property.

We turn now to the claims of HUMER and the Coal Council

that the director's order here declaring the Beehunter Site as

an area unsuitable for surface mining of coal is an unconstitu-

tional taking. We note at the outset that HUMER and the Coal

Council have challenged the director’s order as invalid under

the Fifth Amendment and that the burden on a party attempt-

ing to show that a regulatory taking has occurred is a heavy

one. See Keystone, 480 U.S. at 499, 107 S.Ct. at 1246, 94

L.Ed.2d at 497. Turning to the second prong of the analysis, it

is clear that the economic impact on HUMER here is com-

paratively slight and no showing to the contrary was made in

any of the proceedings below. The record indicates that

HUMER or its predecessors have held the land upon which the

Beehunter Site is located since the mid-1940s. It has been

farmed since that time and there is no indication that it was

acquired with the intent to mine coal. In fact, the seams of coal

were apparently discovered rather recently. It cannot be said,

therefore, that the designation of Beehunter has interfered

with HUMER’s distinct and reasonable investment-backed

expectations since there was no expectation of coal mining at

the time investment in the property was made. Furthermore,

the designation obviously does not interfere with HUMER’s

present use of the property. It has been farming the land and

presumably will continue to do so.

More importantly, the overall effect on the value of the land is

minute here. The Beehunter Site represents approximately

6.57 acres of a 305 acre farm, or just slightly over two percent of

the whole. In terms of mineable coal, the designation affects

only 6.5 percent of the total coal resources on the land and, if

alternative methods of mining were used, such as auguring,

A-7

that figure could be reduced to less than three percent. This

Court has previously upheld much more “intrusive”

restrictions upon land in the context of zoning. In Young v. City

of Franklin (1986), Ind., 494 N.E.2d 316, it was noted that a

land owner is not entitled to the highest and best use of his land

and a taking results under the economic impact inquiry only

when all reasonable use of the land is prevented by the land use

regulation. Jd. at 318, citing City of Anderson v. Associated

Furniture & Appliances, Inc. (1981), Ind., 423 N.E.2d 293;

Foreman v. State ex rel. Department of Natural Resources

(1979), 180 Ind. App. 94, 387 N.E.2d 455. This position is in

harmony with decisions of other courts that have sustained

land use regulations despite their having the effect of severely

reducing or holding down the land value from that of its desired

use. Penn Central, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed. 631:

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71

L.Ed. 303 (1926); Pompa Construction Corp. v. Saratoga

Springs, 706 F.2d 418 (2d Cir. 1983); Rogin v. Bensalem Town-

ship, 616 F.2d 680 (3d Cir. 1980), cert. denied sub nom. Mark-

Garner Associates, Inc. v. Bensalem Township, 450 U.S. 1029,

101 S.Ct. 1737, 68 L. Ed.2d 223 (1981); William C. Haas & Co.

v. City and County of San Francisco, 605 F.2d 1117 (9th Cir.

1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1315, 63 L.Ed.2d

761 (1980).

Thus, because HUMER’s investment-backed expectations

and present use of the land have not been interfered with and

because there has been no significant diminution of the land’s

value, it is clear that from an economic standpoint, the extent of

government’s intrusion into HUMER’s property is com-

paratively small and, in and of itself, does not rise to the level of

a taking of property. However, HUMER and the Coal Council

rely, for the most part, on the first prong of the takings inquiry

in their attack on the constitutionality of the designation, argu-

ing the director’s order and accompanying mitigation plan do

not substantially advance legitimate state interests. In so

doing, they challenge the constitutionality of the statute and

A-8

regulation not as a whole, but as applied to HUMERS prop-

erty.

There is no set rule to apply in making the determination of

what constitutes a legitimate state interest but it is generally

accepted that government has the power to enact laws and

regulations to promote order, safety, health, morals and the

general welfare of society. The decisions of this Court and the

Courts of Appeals have not dwelled on this aspect of the takings

inquiry. However those decisions implicitly make clear that a

broad range of government interests satisfy the legitimacy

requirement. Young, 494 N.E.2d 316 (upholding refusal to

rezone land to residential class); Alanel Corp. v. Indianapolis

Redevelopment Commission (1958), 239 Ind. 35, 154 N.E.2d

515 (upholding redevelopment acts dealing with acquisition of

blighted urban areas), Foreman, 180 Ind. App. 94, 387 N.E.2d

455 (upholding flood control act). Federal decisions have

reached similar conclusions. Agins v. Tiburon, 447 U.S. 255,

100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (scenic zoning); Penn

Central, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (land-

mark preservation); Barrick Realty, Inc. v. City of Gary, 491

F.2d 161 (7th Cir. 1974) (maintaining stable integrated neigh-

borhoods).

Protecting our national and state heritage through the pres-

ervation of archaeological sites must be included in this broad

spectrum of legitimate interests of government. The informa-

tion in these sites expands our knowledge of human history and

prehistory and thus enriches us as a state, nation and as human

beings. The general welfare of the public is greatly enhanced

by such knowledge. We note that our Court of Appeals

implicitly recognized this in State Highway Commission v.

Ziliak (1981), Ind. App., 428 N.E.2d 275, declaring that high-

way construction projects must adhere to the Indiana Environ-

mental Policy Act which requires that all practicable means be

used to coordinate resources to “preserve important historic,

cultural, and natural aspects of our national heritage. . . .” Id.

at 281; .C. 13-1-10-2. We recognize it explicitly here.

A-9

In examining the nexus between the land use regulation and

the state interest, we have relied on the phrasing of earlier

Supreme Court cases, and have required that there be a “sub-

stantial relationship” between the two. Young, 494 N.E.2d at

318; see Ambler Realty, 272 U.S. 365, 47S.Ct. 114, 71 L.Ed.

303 and Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct.

447, 72 L.Ed. 842 (1928). However, there is authority that

suggests that a land use regulation need only be “reasonably

related” to the legitimate state interests to be valid, Penn

Central, 438 U.S. 104, 131, 98S.Ct. 2646, 2662-63, 57 L.Ed.2d

631, 652; Foreman, 387 N.E.2d 455, 461, or that it be “reasona-

bly necessary to the effectuation of a substantial public pur-

pose,” Penn Central, 438 U.S. at 127, 98 S.Ct. at 2660, 57

L.Ed.2d at 650, or that it “substantially advance” a legitimate

state interest, Agins, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141,

65 L.Ed.2d 106, 112. The Supreme Court has, as yet, been

unable to settle on an exact standard for assessing the connec-

tion between the regulation and the state interest, Nol/an, 4&3

U.S. at 834, 107 S.Ct. at 3147, 97 L.Ed.2d at 687-688, and we

see no reason to depart from the standard as stated in Young

that there be a “substantial relation” between the two. The

basis for the inquiry is to assure that the state does not effect a

collateral purpose or end under the guise of a legitimate pur-

pose or end, regulating where it has no right to do so. Such

assurance is obtained when the effect of the regulation is

substantially consistent with the legitimate ends of the state.

Here the legitimate ends of protecting cultural resources

from the threat of strip mining are served by both the designa-

tion of the Beehunter Site as an area unsuitable for surface

mining of coal and by the mitigation plan which allows a means

for removal of the designation once the information in the site is

scientifically recovered. The order is completely consistent

with legitimate state ends.

Be that as it may, HUMER and the Coal Council direct this

Court’s attention to Nollan v. California Coastal Commis-

sion, 483 U.S. 825, 107 S.Ct. 3141, 97 L. Ed.2d 677, and argue

A-10

that case has imposed an entirely new analytical framework on

takings inquiries where the state places a condition on the

removal of a land use restriction. They maintain that, in such an

instance, the condition must serve the same legitimate police

power interest as the land use restriction to be valid and that

where the condition requires a conveyance to the state or would

otherwise amount to a taking, a heightened level of scrutiny

should be employed in examining the state action.

The Nollan court -relied on the rule from Agins that the

regulation “substantially advance” a legitimate state interest

and did hold that a condition to removal of a land use restriction

must similarly advance that end. /d., 483 U.S. at 834, 1078.Ct.

at 3146, 97 L.Ed.2d at 687. However, it did not adopt any

particular level of scrutiny to be applied across the board to all

takings inquiries:

We are inclined to be particularly careful about the adjec-

tive [“substantial”] where the actual conveyance of prop-

erty is made a condition of the lifting of a land use

restriction, since in that context there is a heightened risk

that the purpose is avoidance of the compensation require-

ment rather than the stated police power objective.

{emphasis added]

Id., 483 U.S. at 841, 107 S.Ct. at 3150, 97 L.Ed.2d at 692. If

this amounts toa heightened scrutiny, it clearly extends only to

situations where government requires an actual conveyance of

property as a condition to removal of a land use restriction.

Furthermore, the stated test used by this Court, that there be

a “substantial relation” between the regulation or the condition

and the legitimate state interest, is essentially the same stan-

dard.

In their reliance on Nollan, HUMER and the Coal Council

attempt to cast the director's inclusion of a mitigation plan with

his order as amounting to a condition requiring an intrusion

tantamount to an actual conveyance of property. The order and

mitigation plan require nothing of the sort. HUMER is

required to do nothing and it is free to continue the present use

A-11

~

of farming the land in question. The extent of the intrusion here

does not rise to the level of that in Zi/iak where the State made

an outright demand for access to the owner's land to conduct an

archaeological dig by state-employed archaeologists. Ziliak,

428 N.E.2d 275. Here, the State is not seeking to physically

occupy the land nor requiring any conveyance, it is only

attempting to preserve the information at Beehunter until any

qualified archaeologist can recover it. As noted above, the

intrusion here is minimal from an economic standpoint and

amounts to mere regulation.

Furthermore, such conditions to the removal of land use

restrictions are wholly within the perimeters of No//an:

[T]he Commission’s assumed power to forbid construction

of the house in order to protect the public’s view of the

beach must surely include the power to condition con-

struction upon some concession by the owner, even «a

concession of property rights, that serves the same end. If

a prohibition designed to accomplish that purpose would

be a legitimate exercise of the police power rather than a

taking, it would be strange to conclude that providing the

owner an alternative to that prohibition which accom-

plishes the same purpose is not. [emphasis added]

Nollan, 483 U.S. at 836, 107 S.Ct. at 3148, 97 L. Ed.2d at 689.

We have already noted that the purpose of the alternative to the

prohibition here, the mitigation plan, is consistent with the

legitimate government interest served by the prohibition itself:

preservation of areas culturally significant to our heritage.

Even if we accept the appellees’ characterization of DNR’s

mitigation plan as conditioning the removal of the area unsuit-

able designation upon HUMER’ “conveying” archaeological!

information to the State for public use without compensation, it

is clear that under Nollan such a condition would be a constitu-

tionally valid exercise of the police power, since the removal of a

restriction may be conditioned even on “a concession of prop-

erty rights.” Jd. It would be not only strange, but against all

reason to conclude that the State’s prohibition of surface mining

of the Beehunter Site was a legitimate exercise of the police

A-12

power but that providing HUMER with an alternative to the

prohibition which, like the prohibition itself, also helped to

preserve our cultural heritage was not a legitimate exercise of

that power. /d.

HUMER and the Coal Council argue that the director's

order and mitigation plan do not substantially advance the

legitimate state interest of preservation of our cultural heritage

because they protect Beehunter only against destruction from

surface coal mining. They suggest that because the site could

be destroyed by any number of other means that have not been

protected against by the State, including malicious destruction

by the owner, the government's legitimate interest is not sub-

stantially advanced by the designation alone. However, we do

not read the cases delineating takings jurisprudence to require

that a regulation be successful in accomplishing substantially

all possible ends that further the legitimate state interest, only

that it substantially achieve those ends the legislature, in fur-

therance of legitimate state interests, deems necessary to

address. The nature of the political process dictates that

“(lJegislatures may implement their program step by step. . .

in such economic areas, adopting regulations that only par-

tially ameliorate a perceived evil and deferring complete elim-

ination of the evil to future regulations.” City of New Orleans v.

Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511,

517 (1976).

Here the state interest sought to be protected is our cultural

heritage by prohibiting the destruction of cultural data from

strip mining. That the legislature has not, as yet, chosen to

address other threats to these archaeologically significant

areas does not automatically transpose their action into a tak-

ing or an unconstitutional] exercise of the State’s police power.

The regulations as applied to HUMER's property through the

director's order and mitigation plan bear a substantial relation

to the legitimate state interest of preserving our cultural

heritage by protecting culturally significant data from strip

mining. They are, thus, a legitimate exercise of the State's

A-13

police power and since the economic impact of the regulations is

slight, they do not amount to an unconstitutional taking of

HUMER’ property.

Finally, HUMER and the Coal Council argue that the direc-

tor’s order was arbitrary and capricious and an abuse of discre-

tion. The rule as to administrative actions has been well stated

by our Court of Appeals, and we adopt it here, that an admin-

istrative act is arbitrary and capricious only where it is willful

and unreasonable, without consideration and in disregard of

the facts or circumstances in the case, or without some basis

which would lead a reasonable and honest person to the same

conclusion. Metropolitan School District of Martinsville v.

Mason (1983), Ind. App., 451 N.E.2d 349. Moreover our deci-

sions have stated that courts may not substitute their own

judgment or opinion for that of the administrative body acting

in discretionary matters within its jurisdiction. Mann v. City of

Terre Haute (1960), 240 Ind. 245, 163 N.E.2d 577. HUMER

and the Coal Council maintain that the director should have

accepted a mitigation plan proposed by HUMER in place of the

plan that was made a part of the order; and, by not doing so, the

intent of the statute was not carried out because HUMER is

forced to bear the cost of an archaeological dig and is given an

incentive to destroy the site by other means. These issues have

been addressed above. They look no better cloaked in a chal-

lenge based on arbitrariness, capriciousness or abuse of discre-

tion than they do in a constitutional guise. The mitigation plan

proposed by the director requires nothing of HUMER except

to refrain from strip mining coal in a small portion of its

property untis smportant cultural information can be

recovered. HUMER introduced no evidence at any of the

administrative hearings that its plan was superior to that pro-

posed by the director, or even that it was minimally adequate to

accomplish that end. As to any incentive HUMER may have to

maliciously destroy Beehunter, it is entirely plausible for the

director to have concluded that the low regard in which any

such action would be held by the DNR at subsequent hearings

for removal of the “area unsuitable” designation was a sufficient

deterrent to such unethical behavior.

A-14

In short, the director's order is entirely reasonable and there

is a sufficient basis in the record which would lead a reasonable

and honest man to the same conclusion. The director fulfilled

his statutory obligation to prepare a detailed statement on the

potential coal resources of the area, the demand for coal, and

the impact of the designation on the economy, the environment

and the coal supply. I.C. 13-4.1-14-3. The record shows that

Wabash Valley and CCIA introduced expert witnesses whose

testimony tended to support the director’s decision and

HUMER and the Coal Council produced no experts what-

soever. The order is neither arbitrary, capricious nor an abuse

of discretion.

The request for oral argument is denied. The decision of the

Dubois Circuit Court setting aside the order of the director of

the Department of Natural Resources is vacated and the cause

is remanded to that court to enter a decree denying relief from

that order.

Shepard, C.J., Givan, Pivarnik, Dickson JJ., concur.

A-15

STATE OF INDIANA )

) SS:

COUNTY OF DUBOIS )

IN THE DUBOIS CIRCUIT COURT

CAUSE NO. C-86-15

IN RE THE MATTER OF:

INDIANA COAL COUNCIL, INC.

and HUNTINGBURG MACHINERY

& EQUIPMENT RENTAL, INC.,

Claimants,

Clerk Dubois

)

)

)

)

)

)

)

vs. ) Circuit Court

) Filed

DEPARTMENT OF NATURAL ) NOV 24 1987

RESOURCES )

Donna L.

Respondent, ) Schroeder

)

and )

WABASH VALLEY ARCHAEOLOGICAL)

SOCIETY, INC. and COUNCIL

FOR THE CONSERVATION OF

INDIANA ARCHAEOLOGY, INC. )

)

Respondents/Intervenors. )

FINDINGS AND CONCLUSIONS

In this proceeding, claimaats Huntingburg Machinery &

Equipment Rental, Inc. (““Humer”) and Indiana Coal Council,

Inc. (the “Coal Council”) seek judicial review of a final deter-

mination of the Director of the Indiana Department of Natura!

Resources (the “Director”) designating certain land in Greene

A-16

County, Indiana, unsuitable for surface coal mining pursuant

to Ind. Code §§ 13-4.1-14-1, et seg. Respondent/Intervenors

Wabash Valley Archaeological Society, Inc., (“Wabash Valley”)

and the Council for the Conservation of Indiana Archaeology,

Inc. (“CCIA”) have appeared in support of the Director's deci-

sion.

Because this is a proceeding of judicial review under the

Administrative Adjudication Act (“AAA”), Ind. Code

§§ 4-22-1-1, ef seqg., the case must be decided based on the

administrative record before the Director and the briefs and

arguments of the parties. The administrative record has been

filed, all parties’ briefs have been filed, and the Court heard

oral argument for all parties on November 14, 1986. This case is

now ready for decision, and the Court now makes the following

findings of fact and conclusions of law pursuant to Ind. Code

$§ 4-22-1-18(d). To the extent that any finding of fact is labeled a

conclusion of law or vice versa, the substance of the finding or

conclusion shall control:

FINDINGS OF FACT

A. Procedural Background

1. The Land at issue in this proceeding is an archaeological

site known as the “Beehunter Site” in Greene County. The

Beehunter Site occupies an area of approximately 440 feet by

650 feet (6.57 acres) atop a broad bluffline spur that overlooks a

former marsh area associated with Beehunter Ditch. Bound-

aries of the Beehunter Site have been determined by the den-

sity of archaeological materials observed during three informal

surface surveys, with a scatter of archaeological materials over

a larger area. The greatest density of cultural materials occurs

within a more limited area of approximately 195 feet by 163 feet

centered on the highest elevation, near the western boundary

of the site. Respondent/Intervenors’ Exhibits 1 and 3 locate the

Beehunter Site more precisely.

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2. On November 19, 1985, pursuant to a petition by Wabash

Valley, the Director issued an initial determination that the

Beehunter Site is a land unsuitable for surface coal mining, as

provided in Ind. Code § 4-22-1-25, Ind. Code § 13-4.1.1-14 and

310 1.A.C. §§ 12-2-1 et seq..

3. The Coal Council and Humer filed timely objections to

the Director's initial determination and requested that a hear-

ing be conducted pursuant to the AAA and 310 1.A.C. 0.5 prior

to entry of a final order, thus initiating the AAA proceeding.

4. On December 10, 1985, leave for Wabash Valley and

CCIA to intervene in the AAA proceeding was granted.

5. The Department of Natural Resources is an agency as

defined in Ind. Code § 4-22-1-2. The Director was the ultimate

authority of the Department of Natural Resources with

respect to the administrative proceeding.

6. The Director had jurisdiction over the subject matter

and parties to this action.

7. 310 1LA.C. § 12-2-9(c) requires the Director to issue a

final written decision on a lands unsuitable petition within sixty

(60) days of completion of the public hearing, and the public

hearing was held and completed on November 4, 1985.

8. A hearing conducted pursuant to the AAA was held on

December 19, 1985, before an administrative law judge

appointed by the Director.

9. Prior to the AAA hearing, Humer had twice submitted

proposals to the Director for measures to mitigate the adverse

impacts of mining on the archaeological resources of the

‘ Beehunter Site (“mitigation plan”). (AC No. 84-291R, R 60,

334). Each proposal essentially offered to make the Beehunter

Site available for investigation by interest archaeologists for a

period of time prior to mining. There was no testimony at the

AAA hearing as to the adequacy or inadequacy of Humer’s

proposals. The Department of Natural Resources staff archae-

ologist who had drafted a mitigation plan for the Director's

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initial determination did not consider Humer’s proposals

because he did not have them available to him at the time he

drafted his mitigation plan. (AC No. 85-261R, Tr. 131, 166). The

Director's final decision contains a mitigation plan (AC No.

85-261, R. 12-18) which was modeled on standards applicable

under the NHPA of 1966, but there is no evidence that the

Director thought he was legally bound to follow those guide-

lines. It would require Humer to have the Beehunter Site

investigated by professional archaeologists at Humer’s or some

other party’s expense, and set forth detailed requirements for

the examination of the site, data recovery, analysis, and pub-

lication, and curation of artifacts. The Director’s mitigation

plan was equivalent to what would be required of a governmen-

tal agency under the National Historic Preservation Act of 1966

(AC 85-261R, Tr. 125, 162). The cost to Humer or some other

party of the Director's mitigation plan would have been approx-

imately $50,000.00, if carried out. (AC No. 85-261R, Tr. 114,

136-141). The mitigation plan does not require the owners to

take any affirmative action.

10. Prior tothe AAA hearing, Humer and the Coal Council

both moved that the hearing be delayed in order to allow more

time for discovery, but the motion was denied in view of the

statutory requirements that the Director issue a final decision

within sixty (60) days of the original public hearing held on

November 4, 1985. Humer and the Coal Council did not file any

discovery requests or motions for expedited discovery, or oth-

erwise identify the additional discovery they sought.

ll. Prior to the November 4, 1985, public hearing, the Coal

Council's request for a subpoena duces tecum to the Depart-

ment was denied. The Department did provide the Coal Coun-

cil with materials concerning the Beehunter Site. Those

materials contained an extensive bibliography of materials dis-

cussing related archaeological sites, and the Department

offered to make available any materials listed in the bibliogra-

phy that were not readily available elsewhere. See Entry of

October 15, 1985. In a later order, the hearing officer invited the

A-19

Coal Council to ask for reconsideration of its motion of the

material provided was not adequate. Order of November 1,

1985. No request for reconsideration was made.

12. At the beginning of the November 4, 1985, public hear-

ing, the hearing officer denied the Coal Council's request to

prohibit Wabash Valley from participating in the hearing or

introducing evidence based on its failure to respond promptly

to interrogatories.

13. On January 3, 1986, the Director took final action and

designated the Beehunter Site unsuitable for surface coal min-

ing. Humer filed a timely petition for judicial review in this

Court, and the Coal Council intervened in support of Humer.

B. The Parties

14. Wabash Valley is an Indiana not-for-profit corporation.

It is an avocational organization which promotes archaeological

study of Indiana’s prehistory by, among other things, assisting

professional archaeologists and educating the public regarding

Indiana’s prehistory. Wabash Valley filed the original petition

seeking to have the Beehunter Site designated unsuitable for

surface mining. Wabash Valley intervened in the AAA pro-

ceeding in support of the Director’s \ ‘tial determination.

15. The CCIA is an Indiana not-for-profit corporation

which has intervened in support of Wabash Valley’s petition and

the Director's initial determination. The CCIA is an organiza-

tion of professional Indiana archaeologists which promotes the

preservation, conservation, and wise use of Indiana's archae-

ological resources.

16. The Coal Council is a trade association representing the

Indiana coal industry.

17. Humer is a corporation owned by Max Olinger and his

four brothers and sisters. Humer owns and farms land

occupied by the Beehunter Site together with adjacent farm-

lands, which land was purchased in the 1940s by Mr. Olinger’s

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father. (AC No. 85-261R, Tr. 244). Humer is the owner of the

Beehunter Site and adjacent farmland.

18. Members of Wabash Valley have made use of the

archaeological resources of the Beehunter Site by visiting the

site, surveying and collecting artifacts, studying, analyzing,

and curating those artifacts, studying the professional survey

records of the site, and nominating the site for listing on the

National Register of Historic Places. Wabash Valley members

are also engaged in fieldwork and research on the several

prehistoric cultures which appear to have occupied the

Beehunter Site. The foregoing activity has been within the

scope of Wabash Valley’s purposes.

19. Members of CCIA have made use of the archaeological

resources of the Beehunter Site by visiting the site, surveying

and collecting artifacts, studying, analyzing, and curating

those artifacts, studying the professional survey records of the

site, and nominating the site for listing on the National Regis-

ter of Historic Places. In addition, CCIA members are engaged

in professional research on related archaeological sites and the

several prehistoric cultures which appear to have occupied the

Beehunter Site. The foregoing activity has been within the

scope of CCIA’s purposes.

C. The Beehunter Site

20. Three limited but professional archaeological surface

surveys of the Beehunter Site have revealed dense distribu-

tions of numerous archaeological artifacts including flint

blades, flint chips, chert chips, and numerous pottery frag-

ments.

21. Among the Beehunter Site artifacts are several “diag-

nostic artifacts” which can be traced to specific prehistoric

cultures and time periods. The diagnostic artifacts from the

Beehunter Site are evidence of prehistoric occupations of the

site by the following cultures:

(a) The Allision-LaMotte Culture which is known to

have been present in southwestern Indiana during the

_—

nd

_

A-21

Middle/Late Woodland period (approximately the begin-

- ning of the Christian era to 700 A.D.).

(b) The Albee Complex, which is known to have been

present in Sullivan County, Indiana, during the Late

Woodland period (appropriately 1000 A.D.).

(ec) The Riverton Culture, which is known to have been

present in Illinois and southern Indiana during the Termi-

nal Archaic period (appropriately 1500 to 900 B.C..).

(d) The French Lick Phase, which is known to have been

present in southern Indiana during the Late Archaic

period (approximately 3500 to 1500 B.C..).

22. Visual observation and earth cores taken from the

Beehunter Site have also shown the presence of a substantial

“midden”, or build-up of soil deposited through human occupa-

tion of the site. The midden extends below the plowzone of the

site, and the portion below the plowzone appears to be

undisturbed by farming. In addition, the cultural deposits are

known to extend at least two feet below the surface in some

locations on the site.

23. Based on the diagnostic and other artifacts on the

Beehunter Site and the substantiai midden on the site, it is

highly probable that the Beehunter Site was occupied at times

by at least four distinct prehistoric cultures over a period of

several thousand years.

24. The depth of the midden on the site is strong evidence

that one or more of those cultural occupations was intense and

long-term. It is also probable that the site contains intact

evidence of dwellings, hearths, and storage, cooking and

refuse pits, which are critical to reconstruction of the features

of the people.

25. Substantial middens are rare in archaeological sites in

Indiana. Substantial middens which have been left intact are

even more rare. The midden on the Beehunter Site, which is

both extensive and substantially intact below the plowzone,

makes the Beehunter Site a rare archaeological site with

A-22

unusually great potential as a source of knowledge about sev-

eral prehistoric cultures in Indiana.

26. The presence of at least four distinct cultures on the

same site, which permits comparative studies of different cul-

tural adaptations to the same environment, also contributes to

the significance of the Beehunter Site.

27. The Beehunter Site is especially significant within the

framework of what is now known and not known about the

cultures present at the Beehunter Site based on sites in other

geographic areas.

28. The Beehunter Site was nominated for listing on the

National Register of Historic Places as an archaeological site

significant in American history or prehistory.

29. The Beehunter Site was found eligible for listing on the

National Register of Historic Places. 51 Fed. Reg. 6677 (1986).

30. Surface mining operations on the Beehunter Site would

destroy the archaeological resources present and would there-

fore cause significant and irreparable damage to those impor-

tant resources. The loss of those archaeological resources

would adversely affect members of Wabash Valley and CCIA

by irrevocably destroying highly significant cultural and scien-

tific resources relevant to professional and avocational research

on Indiana's prehistory being carried out by those members.

31. Significant quantities of coal are present under the

Beehunter Site and contiguous acreage. Three distinct coal

seams are present. The uppermost and lowermost seams are

each approximately 25 inches thick.

32. An additional seam approximately five inches thick is

present under the Beehunter Site and between the uppermost

and lowermost seams. This intermediate seam is localized, and

its relative thinness will probably preclude mining.

33. Exclusive of acreage located west of the (former) Penn-

sylvania Railroad, and exclusive of the intermediate seam, the

= mewn. ae

A-23

Humer property contains approximately 1.537 million tons of

coal. Located directly under the Beehunter Site are approx-

imately 55,200 tons of coal, including 5,900 tons attributable to

the intermediate seam.

34. Analysis of the three seams of coal underlying the

Beehunter Site indicates the uppermost seam has a relatively

high sulfur content (5.11%), nearly average ash content

(18.40%) and an above average energy content (11,956 BTU/

lb.). The intermediate seam has a relatively high sulfur content

(4.77%), a high ash content (35.43%) and a low BTU rating

(9,140 BTU/b.). The lowermost seam is of relatively good

quality (2.46% sulfur, 8.03% ash, and 13,592 BTU/1b.).

35. The year of 1984 saw record levels of coal production

and associated high marketability in Indiana. Stockpiling dur-

ing the winter of 1984-85, a general drop in demand for Indiana

coal as a whole, and other economic considerations have

reduced the current demand for Indiana-derived coal.

36. The coal present under the Beehunter Site is presumed

to be marketable. The quality of coal contained in the upper-

most seam, may however, require additional processing under

existing marketing conditions. The current economic feasi-

bility of marketing only the lowermost seam is questionable

given its depth and relative thinness.

37. Designating the Beehunter Site as a land unsuitable for

surface mining under Ind. Code §§ 13-4.1-14-1, et seq., pre-

vents surface coal mining from destroying archaeological fea-

tures of a modest geographic area. The environmental!

consequences of the designation are locally positive, with the

overall impact upon the natural environment being negligible.

38. Designating the Beehunter Site as land unsuitable for

surface mining would remove approximately 100,000 tons of

coal from production (assuniing an additional 100 foot buffer

zone around the site) under conventional surface mining meth-

ods. As much as sixty (60) percent of the impacted coal might

be extracted through the use of alternative mining methods,

A-24

such as augering, if sufficient safeguards against future surface

impacts were to be demonstrated and implemented. Comple-

tion of the mitigation plan set forth in the Appendix to the

Director’s order would allow recovery of 100% of the coal

located beneath the Beehunter Site.

39. The State of Indiana has reported reserves of coal

which may be recovered by surface mining, corrected for loss

during the mining process, approximately 1,789 million tons.

About 184 million tons are estimated to be recoverable within

Greene County. The coal under the Beehunter Site constitutes

a negligible portion of the coal which may be recovered by

surface mining in Indiana and in Greene County.

40. During 1984, approximately 3.28 million tons of coal

were produced from surface mining in Greene County. If the

coal located under the Beehunter Site were to be unavailable

for marketing, the impact on the economy of Greene County

would be insignificant.

41. The mineable coal resources under the Beehunter Site,

with a 100-foot buffer around the site, constitutes approx-

imately 6.5% of the total coal resources located under the land

owned by Humer. If alternative mining methods were to be

employed, the loss might be reduced to less than 3% of the total

coal resources. Completion of the mitigation plan would allow

recovery of 100% of the coal located beneath the Beehunter

Site.

42. The evidence in the record demonstrates that the

archaeological resources of the Beehunter Site have unusually

important historic, cultural and scientific value.

43. Surface coal mining of the Beehunter Site would cause

significant and irreparable damage to the important archae-

ological resources of the Beehunter Site and thus to important

historic, cultural and scientific values.

44. The supply of coal, the economy, and the environment

will not be appreciably affected by designating the Beehunter

Site unsuitable for surface coal mining.

A-25

45. Based upon the foregoing factors and the unusual

importance of the archaeological resources of the Beehunter

Site, the Director concluded that it was appropriate to exercise

his discretion to designate the Beehunter Site unsuitable for

surface coal mining.

46. The Director further found that the adverse effects of

the destruction of the archaeological resources of the

Beehunter Site would be effectively mitigated by the imple-

mentation of a program for recovery of archaeological data on

the site. The Director found that the conditions for such a data

recovery program set forth in the Appendix to his decision

meet minimum professional archaeological standards and are

reasonable, necessary and appropriate for conducting the data

recovery program so as to make wise use of the archaeological

resources on the Beehunter Site.

47. Atthe time of the filing of the Wabash Valley petition to

designate the Beehunter Site unsuitable for mining, a coal

company held an option on the Humer land (AC No. &85-261R,

Tr. 253) and a mining permit application for Humer’s land,

including the Beehunter site, was pending. (AC No. 85-261R,

Tr. 48-49). After the petition was filed, the option was dropped

and the permit application withdrawn. (/bid).

48. Using the $1.25 per ton value assumed by the Director's

staff (AC No. 85-261R, Tr. 112-113), the coal beneath the

Beehunter Site would be worth $69,000.00 in royalties to

Humer.

49. Using the $1.25 per ton value assumed by the Director's

staff (AC No. 85-261R, Tr. 112-113) the coal not able to be

produced because of the designation would be worth

$125,000.00 in royalties to Humer. If 60% of the coal were

recovered by alternative mining methods, the 40% lost would

be worth $60,000.00 in royalties to Humer. The cost of the

Director’s mitigation plan to Humer is estimated at approx-

imately $50,000.00. (AC No. 85-261R, Tr. 114, 136-141).

50. The artifacts and other archaeology information pre-

sent at the Beehunter Site are for the most part buried below

A-26

the surface of the earth. If properly excavated and analyzed,

these artifacts and other archaeology information could pro-

vide valuable knowledge concerning Indiana prehistoric

cultures. Unless excavated and analyzed at some point, the site

has no informational value.

51. The property involved in the case at bar includes: the

coal interests and the rights to mine under a portion of the real

property in question; the archaeologic information, matter and

control of the same; the use of and the digging or change of the

real estate; the money necessary to pay for scientific and tech-

nical services and analyses.

52. The transformation and enhancement of the archae-

ologic information and matter through the technical and scien-

tific services and analyses and the reclamation of the site in the

case at bar have no economic justification from the landowner’s

standpoint.

53. During the time of any archaeological survey and dig-

ging at the site in question, there would be no other viable use

of the site, whether for farming, coal mining or anything else.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the parties and the

subject matter of this case.

2. Thestandard of review applicable here is set forth by the

Administrative Adjudication Act (“AAA”). The Director's deci-

sion shall be upheld if the Director complied with the pro-

cedural requirements of the AAA and if his decision is

supported by substantial, reliable, and probative evidence.

Ind. Code § 4-22-1-18(b). However, if the Court finds that the

Director's decision is:

(1) Arbitrary, capricious, an abuse of discretion or oth-

erwise not in accordance with law; or,

(2) Contrary to constitutional right, power, privilege, or

immunity; or,

A-27

(3) In excess of statutory jurisdiction, authority or lim-

itations, or short [of] statutory right; or,

(4) Without observance of procedure required by law; or

(5) Unsupported by substantia! evidence, the court may

order the decision of determination of the agency set

aside. The court may remand the case to the agency for

- further proceedings and may compel agency action

unlawfully withheld or unreasonably delayed.

Ind. Code § 4-22-1-18(c).

3. The Court in Penn Central Transportation Company v.

City of New York, (1978), 438 U.S. 105, 57 L.Ed.2d 631, 98S.

Ct. 2546, said at p. 648:

“While this court has recognized that the ‘Fifth Amend-

ment’s guarantee — (is) designed to bar Government from

forcing some people alone to bear public burdens which, in

all fairness and justice, should be borne by the public as a

whole, (Citation), this Court, quite simply, has been

unable to develop any “set formula” for determining when

“justice and fairness” require that economic injuries

caused by public action be compensated by the govern-

ment, rather “than remain disproportionately concen-

trated on a few persons”.

4. After reading a half dozen “taking” cases under the Fifth

Amendment, the above is the only consistent rule that I could

discern, which rule, unfortunately, begs the question posed in

each case.

5. The recent case of First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, California

(1987), 55 LW 4781, held that temporary takings are no differ-

ent in kind from permanent takings. Again, the court said:

“It is axiomatic that the Fifth Amendment's just compen-

sation provision is ‘designed to bar Government from fore-

ing some people alone to bear public burdens, which, in all

fairness and justice, should be borne by the public as a

whole’.”

A-28

6. As more fully set forth hereafter, the restrictions on

Humer’s property is not a proper exercise of police power nor

can it be justified by the State’s interest in promoting the

health, safety and general welfare of the public, as in Keystone

Coal Association v. De Benedicitis, (1987), 480 U.S. ., 94

L.Ed.2d 472.

7. As applied to the claimant's property, the “areas unsuit-

able” statute, I.C. § 13-4.1-1-14, regulations and the Director's

order in the case at bar constitute an illegal taking under the

Fifth Amendment applicable to the states under the Four-

teenth Amendment and the Indiana Constitution, Art. 1 § 21,

because the interests sought to be protected thereunder, i.e.,

the preservation of historic, cultural, scientific and aesthetic

values, important though they are, should be preserved at the

expense of the public as a whole, and not solely by Humer, as

owners of the property in question. This is particularly true

under the facts of this cause because the public does not neces-

sarily need to purchase the owner's interest in the archaeology

site sought to be protected, but could merely underwrite the

cost of archaeology excavation, which preserves the knowledge

the site can provide and at the same time destroys it for such

purposes. In other words, the public is not required to pur-

chase the owner's coal rights — it need merely underwrite the

cost of excavation, compilation and reviews, pay a reasonable

rental in accordance with First English Church, and insure

that the real property be returned to a condition capable of

supporting the same uses as before if it will not be surface coal

mined.

8. The State's interest being advanced through the areas

unsuitable statutes (30 U.S.C. § 1272(a) and IC 13-4.1-14)),

the regulations pursuant thereto, and the Director's order as

applied to the archaeological site in question, is the preserva-

tion, acquisition and use of the archaeologic site, information

and protection of aesthetic and scientific values and the preser-

vation of significant and valuable information about Indiana’s

cultural heritage, at the sole cost and to the sole detriment of

the landowner or some other party.

A-29

9. Site preservation is but a prelude to the acquisition and

use of the archaeologic information and matter, which cannot

be accomplished except at considerable cost with a direct phys-

ical intrusion and occupation of the real estate and at the risk of

damage to the real estate unless it is properly reclaimed or

immediately used thereafter for surface coal mining.

10. The “areas unsuitable” statutes, regulations and the

Director's order concerning the removal of the areas unsuitable

designation demonstrate fully the nature of the state’s interest

— the enforced acquisition and use of the archaeological infor-

mation and matter, the use of and possible damage to the real

estate, plus, the required expenditure of the landowner’s per-

sonal property (i.e., the cost of services and reclamation), all

without any compensation to the landowner. These required or

enforced uses and expenditure of funds to the sole benefit of the

State are, therefore, no different than if the State would

directly do so, which are contrary to the physical intrusion or

taking cases under the Fifth Amendment as applied to the

states through the Fourteenth Amendment, Loretto v. Tele-

prompter Manhattan CATV, 458 U.S. 419 (1982), Kaiser

Aetna v. United States, 444 U.S. 164 (1979) and First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. __, 96 L.Ed.2d 250 (1987). These condi-

tions do not effectuate a collateral or separate legitimate State

interest other than the acquisition, use or possible destruction

of property interests in question. This purpose may be suffi-

cient to support the exercise of the eminent domain power

(which power has not been put at issue in the case at bar).

However, when such purpose is attempted but without just

compensation, it is not a “legitimate state interest”. See Nollan

v. California Coastal Comm’n, 483 U.S. ___, 97 L. Ed.2d 677,

689 (1987). This also renders the attempted exercise of the

police power unlawful (See Conclusion No. 6).

11. The permit application pending at the filing of the peti-

tion and the coal lease option were thereafter dropped. The fact

that Humer did not accede and bear the costs of the archae-

A-30

ologic survey and that there has been no “take” to date, does

not change the analysis or the result, Nollan, supra. It

remains that the “areas unsuitable, statutes, regulations and

the Director's order as applied in the case at bar contravene the

Fifth Amendment as applied to the states through the Four-

teenth Amendment and the Indiana Constitution, Art. 1, § 21.

12. Even if the case at bar is seen in part as a land use

regulation case, the unlawful taking result still obtains.

Nollan, supra, emphasizes that an unlawful taking occurs if a

land use regulation does not “substantially advance” a legiti-

mate state interest, while acknowledging that,

Our cases have not elaborated on the standards for deter-

mining what constitutes a “legitimate state interest” or

what type of connection [nexus] between the regulation

and the state interest satisfies the requirement that the

former “substantially advanced” the latter. [97 L.Ed.2d at

688. |

The majority opinion in Nollan expressly disagreed with the

position set forth in Justice Brennan's dissenting opinion that

the nexus test should be under the looser nexus standards of

due process or equal protection, stating:

Contrary to Justice Brennan's claim, post, at __, our

opinions do not establish that these standards are the

same as those applied to Due Process or Equal Protection

claims. To the contrary our verbal formulations in the

takings field have generally been quite different. We have

required that the regulation “substantially advance” the

“legitimate state interest” sought to be achieved. . . . [97

L.Ed.2d at 688, n.3 .].

13. In the case at bar, applying this Nollan substantial

advancement nexus test that the regulation must “substan-

tially advance” a legitimate state interest (even assuming the

latter to exist) this test transposes to — does the declaration of

an archaeology site as an area unsuitable for surface coal min-

ing substantially advance preserving the site, using the term in

its purest sense of only keeping the raw site undisturbed so

A-31

that such can later be acquired, developed and analyzed by the

State?

14. The beginning point of the analysis under the foregoing

issue in the case at bar requires a determination of what prop-

erty owners can do with or to the archaeology site even in face

of the statutory scheme. There is no doubt and the State does

not contest that the fee owner owns the site and the buried

archaeologic matter and information. See Favorite v. Miller

(1978), 176 Conn. 310, 407 A.2d 974, 976-78; Klein v. Uniden-

tified Wrecked Vessel, 758 F.2d 1511 (11th Cir. 1985); Wills more

v. Twp. of Ocebla (1981), 106 Mich. App. 671, 308 N.W.2d 796,

803-4; Allred v. Biegel, (1949), 240 Mo. App. 818, 219 S.W.2d

665, and generally, 1 Am.Jr.2d § 4 Abandoned, Lost Property

and 63A Am.Jr.2d § Property.

15. There are no statutes, federal or state, which attempt

to acquire and preserve, on a special use basis or otherwise,

archaeology sites which are not owned by the State or the

Federal government. Even the Federal and Indiana Historic or

Archaeology Preservation Acts (IC 14-3.3-1 and 3.4-1 and 16

U.S.C. § 470f and aa) only protect archaeology sites not owned

by the Federal or Indiana governments from government

financed projects. Neither grants eminent domain power.

16. There is no other protection to archaeology sites from

destruction by use or otherwise except through the “areas

unsuitable” statutes and orders issued pursuant thereto as in

the case at bar.

17. The result of the analysis is several anomalous situa-

tions. If the archaeology site no longer existed before a petition

was filed, the site could not be the basis for the area being found

to be unsuitable for surface coal mining, in which event a

landowner suspecting an archaeological site overlying coal

could have it destroyed under one guise or another. If the site

ceases to exist by reason of use or destruction other than by

surface coal mining after being declared unsuitable for coal

mining, then such areas unsuitable designation would be eligi-

ble for a termination pursuant to 310 1.A.C. 12-2-6(c) except for

A-32

the effect of the conditions in the Director's order. The intended

effect of the Director's order is that should the archaeology site

be destroyed through a non-coal mining use or otherwise with-

out compliance with the Director's order, the designation of

unsuitability would, therefore, not be removed — ever. The loss

of the right to surface mine the coal becomes a potential penalty

to the landowner if the landowner does not incur all the bur-

dens of the order. Assuming that such an intended effect is

within the statutory authority of the Director (which issue this

Court does not reach), this effect only serves to highlight that

the intended effect of the statutory scheme, regulation and

order, that is, acquiring various property interests of the land-

owner as previously set forth without compensation, is not a

legitimate state interest. There is nothing to protect the

archaeology site from other uses by, not to mention the possi-

ble enmity of, the landowner except the penalty to the land-

owner of losing the right to surface mine the coal. The

economics of the situation do not provide any impetus to the

landowner to incur the burdens attempted to be imposed by the

Director's order since the lost royalties are at best equal to the

cost of the archaeology survey with the landowner still bearing

the risk of reclamation if the coal is not mined. A very probable

result in the case at bar with the chance for a surface coal

mining permit already having come and gone, is that the State

will lose the benefit of both resources, the coal and the archae-

ology. Further, if this intended effect of the order is not lawful

(as being an unlawful taking, or outside the statutory authority

which question again is not reached), then the likelihood of the

loss of the archaeology site becomes even more certain, as does

the conclusion that the land use regulation does not “substan-

tially advance” a legitimate state interest because there would

be nothing which even indirectly would prevent the landowner

from destroying the archaeology site.

The conclusion under Nollan, supra, is that the land use

regulatory scheme in the case at bar results in an unlawful

taking. As this Court has previously concluded if the State

abides by the Fifth Amendment requirements, the archae-

ology can be acquired without having to purchase coal interest.

A-33

For all the foregoing reasons, the Court concludes that the

Director's designation of the Beehunter Site as unsuitable for

surface coal mining should be set aside, and remanded for

further consideration of Humer's mitigation plan.

DATED this 24th day of November, 1987.

/s/ Hugo C. Songer

HUGO C. SONGER, JUDGE

DUBOIS CIRCUIT COURT

A-34

STATE OF INDIANA

BEFORE THE

DIRECTOR

OF THE

DEPARTMENT OF NATURAL RESOURCES

IN THE MATTER OF:

INDIANA COAL COUNCIL, INC.

and HUNTINGBURG MACHINERY

& EQUIPMENT RENTAL INE.,

CLAIMANTS,

VS

DEPARTMENT OF NATURAL

RESOURCES,

RESPONDENT, )

) ADMINISTRATIVE

AND ) CAUSE NO.:

) 85-261R

i

WABASH VALLEY

ARCHAEOLOGICAL SOCIETY,

INC.,

RESPONDENT-INTERVENOR,

COUNCIL FOR THE

CONSERVATION OF INDIANA

ARCHAEOLOGY, INC. )

RESPONDENT-INTERVENOR. )

)

)

)

)

AND )

)

)

)

FINDINGS OF FACT AND ORDER

OF THE

DIRECTOR OF THE DEPARTMENT

OF NATURAL RESOURCES

A-35

After due consideration of the Report, Proposed Findings of

Fact and Recommended Order of the Administrative Law

Judge filed December 23, 1985, written objections of Hunt

ingburg Machinery and Equipment Rental, Inc. and Indiana

Coal Council filed January 2, 1986 and oral arguments held on

January 2, 1986, I enter the following Findings of Facts and

Order.

I. FINDINGS OF FACT

1. On November 19, 1985, the Director of the Department

of Natural Resources (“the Director”), pursuant to petition,

issued an initial determination, that the Beehunter site is a

land unsuitable for surface coal mining, as provided for in

IC 4-22-1-25, IC 13-4.1-14 and 310 LAC 12-2.

2. On December 2, 1985, the Indiana Coal Council, Inc

(“ICC”) filed objections to the Director's initial determination

and requested that a hearing be conducted pursuant to

IC 4-22-1 and 310 IAC 0.5 prior to entry of a final order

3. On December 4, 1985, Huntingburg Machinery and

Equipment Rental, Inc. (“HUMER”) filed objections to the

Director's initial determination and requested that the decision

be vacated in its entirety and the proceeding be dismissed with

prejudice, or that a hearing be conducted pursuant to 1C 4-22.)

and 310 IAC 0.5 prior to the entry of a final order

4. On December 10, 1985 leave for the Wabash Valley

Archaeological Society, Inc. (“Wabash Valley”) and Council for

the Conservation of Indiana Archaeology, Inc ("CCIA") to

intervene in this proceedings was granted.

5. IC 13-4.1, the Surface Coal Mining and Reclamation

Act, applies to this proceeding.

6. The Department of Natural Resources is an agency a-

defined in IC 4-22-1. The Director of the Department of Natu

ral Resources is the ultimate authority of the Department with

respect to this proceeding.

A-36

7. The Director has jurisdication over the subject matter

and parties to this action.

8. Pursuant to IC 4-22-1, the Director appointed Sue A.

Shadley, administrative law judge (“ALJ”), for the purposes of

conducting the hearing requested herein, and making a recom-

mendation to him.

9. 310 IAC 12-2-9(c) requires the Director issue a final

written decision on a lands unsuitable petition within sixty (60)

days of completion of the public hearing.

10. The public hearing was held and completed on Novem-

ber 4, 1985.

11. On December 3, 1985, a Notice of Pre-Hearizg Con-

ference and Notice of Hearing was issued by the ALJ concern-

ing the ICC request for hearing. The Pre-Hearing was

scheduled for December 17, 1985, and the Hearing was sched-

uled for December 19, 1985.

12. On December 5, 1985 a Notice of Consolidation, of the

ICC and HUMER hearing requests was issued by the ALJ,

with the pre-hearing conference to be held on December 17 and

the hearing to be held on December 19.

13. The Notice of Pre-Hearing Conference and Notice of

Hearing and the Notice of Consolidation were sent by certified

mail to: ”)

James F. Maguire, President

Indiana Coal Council, Inc.

701 Harrison Building

143 West Market Street

Indianapolis, IN 46204

James M. Buthod, Attorney

for HUMER

BUTHOD, LONGEST, CLARK,

RIETMAN, STEEDMAN & LINK

115 S. E. Third Street

A-37

Suite 409

Evansville, IN 47708

C. Michael Anslinger

President

Wabash Valley Archaeological

Society, Inc.

1626 South Fourth Street

Terre Haute, IN 47803

Dean C. Higginbotham,

Resident Agent

Council for the Conservation

of Indiana Archaeology, Inc.

R.R. 1, Box 28

Ownesville, IN 47665

Iain Dolandson, President

J H & L Coal Company

8874 South 25th Street

Terre Haute, IN 47802

Federal Land Bank of Louisville

201 West Main Street

Louisville, KY 40202

David Joest, Attorney

Indiana Coal Council

c/o Peabody Coal Company

P. O. Box 1112

Evansville, IN 47706

Lee Ray Olinger

Resident Agent

HUMER

Orchard Ridge

Huntingburg, IN 47542

Tom Charles Huston and

David F. Hamilton

for Wabash Valley & CCIA

A-38

BARNES AND THORNBURG

1313 Merchants Bank Bldg.

Indianapolis, IN 46204

Max Olinger

Star Route

Huntingburg, IN 47542

Steve Chancellor, Pres.

Black Beauty Coal Co.

P.O. Box 312

Evansville, IN 47702

14. The Notice of Pre-Hearing Conference and Notice of

Hearing and Notice of Consolidation were also sent to:

Steven J. Szostek

Deputy Attorney General

Division of Reclamation

309 W. Washington St., Rm 201

Indianapolis, IN 46204

Robert E. Pace

Anthropology Museum and Lab

Indiana State University

Terre Haute, IN 47809

James H. Kellar

Glenn Black Laboratory of

Archaeology

9th and Fess Streets

Bloomington, IN 47405

Dept. of Anthropology

Ball State University

Muncie, IN 47302

15. Pre-Hearing Conference was held on December 17,

1985, at which time the parties were afforded the opportunity

for the settlement or adjustment of their claim. It was deter-

mined that settlement was not possible.

A-39

16. Hearing was held on December 19, 1985.

17. The land at issue in this proceeding is an archaeological

site known as the “Beehunter Site” in Greene County. The

Beehunter Site occupies an area of approximately 440 feet by

650 feet (6.57 acres) atop a broad bluffline spur that overlooks a

former marsh area associated with Beehunter Ditch. Bound-

aries of the Beehunter Site have been determined by the den-

sity of archaeological materials observed during three informal

surface surveys, with a scatter of archaeological materials over

a larger area. The greatest density of cultural materials occurs

within a more limited area of approximately 195 feet by 163 feet

centered on the highest elevation, near the western boundary

of the site. The Beehunter Site is located 1.2 miles southwest of

the town of Lyons and 0.2 miles east of State Highway 67 in

Greene County within the NE 1/4 of the NW 1/4 of the SE 1/4 of

the NW 1/4 and the NW 1/4 of the NE 1/4 of the SE 1/4 of the

NW 1/4 of Section 8, T6N, R6W, USGS 7.5 minute Lyons

Quandrange.

18. Wabash Valley is an Indiana not-for-profit corporation.

It is an avocational organization which promotes archaeological

study of Indiana's prehistory by, among other things, assisting

professional archaeologists and educating the public regarding

Indiana’s prehistory. Wabash Valley filed the original petition

seeking to have the Beehunter Site designated unsuitable for

surface mining. Wabash Valley has intervened in this matter in

support of the Director's initial determination.

19. The CCIA is an Indiana not-for-profit corporation

which has intervened in support of Wabash Valley’s petition and

the Director's initial determination. The CCIA is an organiza-

tion of professional Indiana archaeologists which promotes the

preservation, conservation, and wise use of Indiana's archae-

ological resources.

20. Claimant, ICC, is a trade association representing the

Indiana coal industry.

A-40

21. Claimant, HUMER, is the owner of the Beehunter Site

and adjacent farmland.

22. Members of Wabash Valley have made use of the

archaeological resources of the Beehunter Site by visiting the

site, surveying and collecting artifacts, studying, analyzing,

and curating those artifacts, studying the professional survey

records of the site, and nominating the site for listing on the

National Register of Historic Places. Wabash Valley members

are also engaged in fieldwork and research on the several

prehistoric cultures which appear to have occupied the

Beehunter Site. The foregoing activity has been within the

scope of Wabash Valley’s purposes.

23. Members of CCIA have made use of the archaeological

resources of the Beehunter Site by visiting the site, surveying

and collecting artifacts, studying, analyzing, and curating

those artifacts, studying the professional survey records of the

site, and nominating the site for listing on the National Regis-

ter of Historic Places. In addition, CCIA members are engaged

in professional research on related archaeological sites and the

several prehistoric cultures which appear to have occupied the

Beehunter Site. The foregoing activity has been within the

scope of CCIA’s purposes.

24. Three limited, but professional, archaeological surface

surveys of the Beehunter Site have revealed dense distribu-

tions of numerous archaeological artifacts including flint

blades, flint chips, chert chips, and numerous pottery frag-

ments.

25. Among the Beehunter Site artifacts are several “diag-

nostic artifacts” which can be traced to specific prehistoric

cultures and time periods. The diagnostic artifacts from the

Beehunter Site are evidence of prehistoric occupations of the

site by the following cultures:

(a) The Allision-LaMotte culture which is known to have

been present in southwestern Indiana during the Middle/Late

Woodland period (approximately the beginning of the Chris-

tian era to 709 A.D.).

A-41

(b) The Albee Complex which is known to have been pre-

sent in Sullivan County, Indiana, during the Late Woodland

period (approximately 1000 A.D.).

(c) The Riverton Culture, which is known to have been

present in Illinois and southern Indiana during the Terminal

Archaic period (approximately 1500 to 900 B.C.).

(d) The French Lick Phase, which is known to have been

present in southern Indiana during the Late Archaic period

(approximately 3500 to 1500 B.C..).

26. Visual observation and earth cores taken from the

Beehunter Site have also shown the presence of a substantial

“midden,” or build-up of soil deposited through human occupa-

tion of the site. The midden extends below the plowzone of the

site, and the portion below the plowzone appears to be

undisturbed by farming. In addition, the cultural deposits are

known to extend at least two feet below the surface in some

locations on the site.

27. Based on the diagnostic and other artifacts on the

Beehunter Site and the substantial midden on the site, it is

highly probably that the Beehunter Site was occupied at times

by at least four distinct prehistoric cultures over a period of

several thousand years.

28. The depth of the midden on the site is strong evidence

that one or more of those cultural occupations was intense and

long-term. It is also probable that the site contains intact

evidence of dwellings, hearths, and storage, cooking and

refuse pits, which are critical to reconstruction of the features

of the people.

29. Substantial middens are rare in archaeological sites in

Indiana. Substantial middens which have been left intact are

even more rare. The midden on the Beehunter Site, which is

both extensive and substantially intact below the plowzone,

makes the Beehunter Site a rare archaeological site with

unusually great potential as a source of knowledge about sev-

eral prehistoric cultures in Indiana.

A-42

30. The presence of at least four distinct cultures on the

same site, which permits comparative studies of different cul-

tural adaptations to the same environment, also contributes to

the significance of the Beehunter Site.

31. The Beehunter Site is especially significant within the

framework of what is now known and not known about the

cultures present at the Beehunter Site based on sites in other

geographic areas.

32. The Beehunter Site was nominated for listings on the

National Register of Historic Places as an archaeological site

significant in American history or prehistory.

33. The Beehunter Site was found eligible for listing ox, the

National Register of Historic Places.

34. Surface mining operations on the Beehunter Site would

destroy the archaeological resources present and would there-

fore cause significant and irreparable damage to those impor-

tant resources. The loss of those archaeological resources

would adversely affect members or Wabash Valley and CCIA

by irrevocably destroying highly significant cultural and scien-

tific resources relevant to professional and avocational archae-

ological research on Indiana’s prehistory being carried out by

those members.

35. Significant quanties of coal are present under the

Beehunter Site and contiguous acreage. Three distinct coal

seams are present. The uppermost and lowermost seams are

each approximately 25 inches thick.

36. An additional seam approximately five inches thick is

present under the Beehunter Site and between the uppermost

and lowermost seams. This intermediate seam is localized, and

its relative thinness will probably preclude mining.

37. Exclusive of acreage located west of the (former) Penn-

sylvania Railroad, and exclusive of the intermediate seam, the

HUMER property contains approximately 1.537 million tons

of coal. Located directly under the Beehunter Site are approx-

A-43

imately 55,200 tons of coal, including 5,900 tons attributable to

the intermediate seam.

38. Analysis of the three seams of coal underlying the

Beehunter Site indicates the uppermost seam has a relatively

high sulfur content (5.11%), nearly average ash content

(18.40%) and an above average energy content (11,956 BTU

lb.). The intermediate seam has a relatively high sulfur content

(4.77%), a high ash content (35.43% and a low BTU rating

(9,140 BTU/b.). The lowermost seam is of relatively good

quality (2.46% sulfur, 8.03% ash, and 13,592 BTU/Ib.).

39. The year of 1984 saw record levels of coal production

and associated high marketability in Indiana. Stockpiling dur-

ing the winter of 1984-85, a general drop in demand for Indiana

coal as a whole, and other economic considerations have

reduced the current demand for Indiana-derived coal.

40. The coal present under the Beehunter Site is presumed

to be marketable. The quality of coal contained in the upper-

most seam, may, however, require additional processing under

existing marketing conditions. The current economic feasi-

bility of marketing only the lowermost seam is questionable

given its depth and relative thinness.

41. Designating the Beehunter Site as a land unsuitable for

surface mining under IC 13-4.1-14 would prevent surface coal

mining from destroying archaeological features of a modest

geographic area. The environmental consequences of the des-

ignation would be locally positive, with the overall impact upon

the natural environment being negligible.

42. Designating the Beehunter Site as land unsuitable for

surface mining would remove approximately 100,000 tons of

coal from production (assuming an additional 100 foot ~uffer

zone around the site) under conventional surface mining meth-

ods. As much as sixty (60) percent of the impacted coal might

be extracted through the use of alternative mining methods,

such as augering, if sufficient safeguards against future surface

impacts were to be demonstrated and implemented. Comple-

A-44

tion of the mitigation plan set forth in the Appendix of this

order, below, would allow recovery of 100% of the coal located

beneath the Beehunter Site.

43. The State of Indiana has reported reserves of coal

which may be recovered by surface mining, corrected for loss

during the mining process, approximating 1,789 million tons.

About 184 million tons are estimated to be recoverable within

Greene County. The coal under the Beehunter Site constitutes

a negligible portion of the coal which may be recovered by

surface mining in Indiana and in Greene County.

44. During 1984, approximately 3.28 million tons of coal

were produced from surface mining in Greene County. If the

coal located under the Beehunter Site were to be unavailable

for marketing, the impact on the economy of Greene County

would be insignificant.

45. The mineable coal resources under the Beehunter Site,

with a 100 foot buffer around the site, constitutes approx-

imately-6.5% of the total coal resources located under the land

owned by HUMER. If alternative mining methods were to be

employed, the loss might be reduced to less than 3% of the total

coal resources. Completion of the mitigation plan set forth in

the Appendix of the order, below, would allow recovery of 100%

of the coal located beneath the Beehunter Site.

46. Because members of Wabash Valley and CCIA have

made use of the archaeological resources of the Beehunter Site

and would be adversely affected by the destruction of those

resources, Wabash Valley and CCIA both have standing on

behalf of their members to pursue the original petition to

designate the Beehunter Site unsuitable for surface mining and

to intervene in this proceeding.

47. The Beehunter Site has been determined eligible for

listing on the National Register of Historic Places and there-

fore constitutes “historic lands” within the meaning of

IC 13-4.1-14-4(b\(2), 310 LAC 12-1-3 and 310 IAC 12-2-3(b)(2).

A-45

48. The determination by state and federal authorities that

the Beehunter Site is eligible for listing on the National Regis-

ter of Historic Places constitutes some evidence, but is not

dispositive that the Beehunter Site’s archaeological resources

have important historic, cultural, scientific or esthetic value

within the meaning of IC 13-4.1-14-4(b)(2) and 210 IAC

12-2-3(b)(2).

49. The evidence in the record demonstrates that the

archaeological resources of the Beehunter Site have unusually

important historic, cultural and scientific value.

50. Surface coal mining of the Beehunter Site would cause

significant and irreparable damage to the important archae-

ological resources of the Beehunter Site and thus to important

historic, cultural and scientific values.

51. The supply of coal, the economy, and the environment

will not be appreciably affected by designating the Beehunter

' Site unsuitable for surface coal mining.

52. Based upon the foregoing factors and the unusual

importance of the archaeological resources of the Beehunter

Site, the Director concludes that it is appropriate to exercise

his discretion to designate the Beehunter Site unsuitable for

surface coal mining.

53. The Virector further finds that the adverse effects of

the destruction of the archaeological resources of the

Beehunter Site would be effectively mitigated by the imple-

mentation of a program for recovery of archaeological data on

the site. The Director finds that the conditions for such a data

recovery program set forth in the appendix to this decision

meet minimum professional archaeological standards and are

reasonable, necessary and appropriate for conducting the data

recovery program so as to make wise use of the archaeological

resources on the Beehunter Site.

A-46

Il. ORDER

The Beehunter Site is hereby designated unsuitable for the

conduct of surface coal mining operations, provided however,

the site is not unsuitable for underground mining activities

where there would be no surface affects within the boundaries

of the Beehunter Site, nor is it unsuitable for mining, pursuant

to an approved auger mining plan. The unsuitable designation

will terminate if I find that a program for data recovery has

been implemented in accordance with the requirements set

forth in the Appendix attached hereto.

Dated: January 3, 1986

/s/ James M. Ridenour

James M. Ridenour

Director

A-47

APPENDIX

MITIGATION PROGRAM FOR RECOVERY

OF ARCHAEOLOGICAL DATA PRIOR TO

SURFACE COAL MINING OF BEEHUNTER SITE

The designation of the Beehunter Site as unsuitable for

surface coal mining operations shall terminate if the Director of

the Department of Natural Resources finds that the following

mitigation plan for recovery of archaeological data has been

implemented. The director may, after notice to affected per-

sons and opportunity for hearing, modify the mitigation plan or

approve an alternate mitigation plan.

1. Mitigation shall be performed by an archaeological con-

tractor substantially in conformance with standards and condi-

tions set forth in this Appendix in order to qualify the

Beehunter Site for surface coal mining under IC 13-4.1. Selec-

tion of the archaeological contractor is subject to prior approval

by the Director of the Department of Natural Resources.

2. Thearchaeological contractor shall supply the necessary

professional and technical perzonnel, field and laboratory facili-

ties, testing, excavation, analytical and conservation supplies

and materials; and other equipment as is necessary to conduct

the archaeological data recovery operation.

3. Acceptable mitigation of the Beehunter Site by archae-

ological data recovery shall be achieved by the utilization of a

two-phased approach consisting of site testing and data recov-

ery.

A. The first phase shall entail a rigorous and systematic

evaluation of the nature and extent of the surface and subsur-

face deposits, commencing with a controlled surface collection

of the Beehunter Site. Results of the surface collection shall

guide the archaeological contractor in investigating subsurface

deposits, in determining the proper placement of hand excava-

tion units and in providing systematic coring and augering of

the site. The plowzone shall be removed by hand excavation to

determine the integrity of the cultural horizons and to better

A-48

define the vertical limits of those horizons. This testing phase

will address not more than 5% of the site surface area; and,

performed in systematic fashion, testing will facilitate the

expeditious verification of horizontal and vertical deposits. The

test excavation shall employ field screening using 1/4 inch

hardware cloth for all test excavation unit soils not otherwise

encumbered for feature, geological-geochemical, radiocarbon

and palynological analyses and for those soils reserved for

flotation sampling. Archaeological features shall be bisected

and profiled so that no less than 50% of each feature is recovered

for analysis. Flotation shall be required for fill recovered from

any feature.

B. If archaeological testing activities indicate that no pre-

served sub-plowzone deposits with recoverable context exist at

the Beehunter Site, the Director may declare the Beehunter

Site to be a land suitable for surface coal mining operations

under IC 13-4.1.

C. The second phase shall provide for data recovery and

shall not be commenced until the Director is satisfied that the

requirements of the first phase have been satisfied. The second

phase shall be performed if sub-plowzone deposits with

recoverable contexts are found to exist during archaeological

testing activities. In performing the second phase, hand-

excavation units shall be utilized which extend from or encom-

pass the phase one testing units as is necessary to recover

intact cultural deposits. The plowzone may be exclusively hand

excavated, or may, with approval of the Director, be machine

excavated to not deeper than one inch above the base of the

plowzone, with the remainder of the plowzone to be hand

excavated. The data recovery excavation shall employ the same

standards and requirements for screening and for analysis as

required for the testing phase.

4. The first phase of mitigation shall be performed in accor-

dance with the following objectives: to demonstrate the pres-

ence, nature and extent of recoverable cultural features related

to prehistoric cultural groups; to provide a preliminary identifi-

A-49

cation and evaluation of the widest range of data categories

with respect to those cultures; to develop a preliminary map of

the site’s cultural horizons, including surface and subsurface

horizons; to determine the limits of recoverable cultural depos-

its; and, to develop a cogent cost-effective data recovery plan.

5. The second phase of mitigation shall execute a compre-

hensive data recovery operation which focuses on the data

categories and features identified during the testing and pre-

vious archaeological investigations and which will inform with

respect to the following objectives: to provide a site chronology

and a clear separation of cultural occupations; to identify the

nature and extent of the cultures present, including site utiliza-

tion, intrasite patterns, settlement patterns, subsistence pat-

terns, diet and health; to address the problem of cultural

change within the local and regional context; to evaluate the

differences and similarities in patterns between the Beehunter

Site and other occupations within southwestern Indiana; to

address the technology of the cultural groups occupying the

Beehunter Site and technological change; to address social

organization, population demographics, mortuary practices,

religion and other relevant sociocultural questions for the

groups occupying the Beehunter Site; and, to evaluate paleoen-

vironmental change and its relationship to changing cultural

patterns at the Beehunter Site.

6. Inorder to accomplish the objectives, the data recovery

may require specialized statistical techniques to organize and

assist in data analysis and interpretation. Any mitigation pro-

posal must, at a minimum, provide for chronometric dating, for

specialized floral, faunal, palynological, geological-geo-

chemical identification and analysis, and for burial analysis.

7. The archaeological contractor must maintain a complete

and thorough record of field work and related activities includ-

ing field notes, forms and maps. The contractor shall insure

that a complete and annotated photographic record of the

testing and data recovery investigation will be made. To insure

against loss of documentation, at least one complete copy of all

A-50

site investigation documents must be submitted to the Depart-

ment of Natural Resources. The original site investigation

documents shall be curated at a facility approved by the Direc-

tor. Following adequate analysis, disposition of the artifact

coliections will be subject to landowner’s approval.

8. The report of investigations shall include a detailed dis-

cussion of the services rendered by the archaeological contrac-

tor. The archaeological contractor must furnish one bound copy

of the final report to the Division of Historic Preservation and

Archaeology. Photographs must contain an appropriate scale

and directional arrow located clearly in the frame. Soil color

description should be in Munsell terminology. Texts and line

drawings should be clean, clear, and easily reproduced. Pho-

tographs should be original black and white positive prints, or

high quality reproductions. Typescript should be single

spaced. All pages should be numbered in sequence.

9. Anagency, institution, corporation, association, or indi-

vidual will qualify to participate in the mitigation of the

Beehunter Site only if it satisfies the minimum criteria set forth

in 36 CFR, Part 66. Mitigation proposals must include vitae/

resumes for the principal investigators, main supervisory per-

sonnel and consultants in support of their academic and experi-

ence qualifications for this type of project.

10. The Director may designate staff members from the

Department to communicate with the archaeological contrac-

tor and to furnish information for the timely, cost-effective and

efficient mitigation of the site. The archaeological contractor

must coordinate its activities with the Department during all

phases of work. The Director may provide for the inspection of

mitigation activities by the Division of Reclamation archae-

ologists or another staff member of the Department. Sanctions

may be imposed by the Department against the archaeological

contractor for failure to conform to mitigation standards or

requirements.

11. Human skeletal remains recovered during mitigation

are viable and contributing data and must be handled in a

A-51

sensitive fashion by specialists in physical anthropology. The

archaeological contractor must make arrangements for the

proper curation of human skeletal remains at/a recognized

institution staffed with personnel who conduct research in

physical anthropology. If the skeletal remains are related to a

specific group of people whose descendants are living in Indi-

ana, the archaeological contractor shall coordinate and consult

with the Division of Historic Preservation and Archaeology to

ensure their appropriate disposition. No human skeletal

remains recovered during mitigation may be placed on public

display.

A-52

STATE OF INDIANA

IN RE MATTER OF ) Filed with the Director

) Dept. of Natural

THE PETITION OF THE ) Resources

-WABASH VALLEY ) Date: Nov. 12, 1985

ARCHAEOLOGY ) ADMINISTRATION

ASSOCIATION, INC. TO ) CAUSE NO.

DESIGNATE LANDS AS ) 84-291-R

UNSUITABLE FOR SURFACE )

)

COAL MINING OPERATIONS

AMENDED OFFER RELATIVE TO

BEEHUNTER SITE

Huntingburg Machinery & Equipment Rental, Inc.

(“Humer”), intervenor herein, having heretofore filed in this

cause its “Offer to Permit Inspection and Evaluation of Site”

hereby amplifies and amends its prior offer in accordance with

the terms and provisions hereof. Humer, by this amended offer,

hereby offers to permit the conduct of an investigation and

evaluation for archaeological purposes of the site described in

the petition as the Beehunter Site, and the recovery of artifacts

and other relevant materials therefrom (hereinafter referred

to collectively as the “Activities”), upon such terms and condi-

tions as may be reasonable, and generally upon the following

express terms, conditions and provisions:

1. All of the Activities shall be conducted under the super-

vision and control of the Project Sponsor designated by the

Department of Natural Resources. The Project Sponsor shall

be a person, firm or organization which is deemed by the

Department of Natural Resources to be financially responsible

and professionally qualified to conduct and supervise the

Activities, and which is willing to accept the responsibilities of

so doing in accordance with the provisions hereof.

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2. The Activities shall be conducted without cost, risk or

expense to Humer, except for such losses as may result from

the loss of use of tillable land as a result of and during the period

of the Activities.

3. Humer shall be indemnified and held harmless of and

from any and all claims, losses or damages in anyway arising

out of or related to the Activities conducted on the premises;

and shall be furnished, prior to the commencement of any

Activities on the permises, certificates of insurance showing

that there are in force, and will be maintained in force at all

times during the conduct of the Activities, policies of public

liability and property damage insurance in amounts reasonably

calculated to cover all risks incident to the conduct of the

Activities on the premises.

4. All Activities shall be conducted during daylight hours

on days other than Sundays and holidays. Activities may be

conducted on Sundays and holidays with the specific approval of

Humer.

5. Humer shall be given at least forty-eight (48) hours

advance notice, in writing or by telephone, prior to the com-

mencement of any Activities on the premises, such notice to be

given to Humer at its offices in Huntingburg, Indiana.

6. Representatives of Humer shall have the right to be

present on site at all times during the conduct of any Activities

on the premises, and the right to observe all Activities con-

ducted at the site.

7. No artifacts shall be removed from the site until the

same have been identified and catalogued and the pertinent

information relating thereto furnished to Humer.

8. Humer shall retain title to all artifacts discovered on the

premises, but the Project Sponsor and its associated entities

shall have the right to temporary possession thereof for such

reasonable times during and subsequent to the conduct of

operations as may be required for the evaluation, identification

and correlation thereof with other pertinent data.

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9. Humer shall be reimbursed for all damages to growing

crops resulting from the conduct of the Activities, and for any

residual land damages remaining after the cessation of the

Activities and the restoration of the surface of the lands. At

Humer'’s request, the project sponsor shall cause to be fur-

nished to Humer appropriate assurances of the availablity of

funds to reimburse Humer for such damages.

10. If any excavations to be conducted as a part of the

Activities is expected to go deeper than topsoil level over an

area which would substantially affect the subsequent utility of

the premises for farming purposes, the topsoil shall be

removed and separately stockpiled for preservation. Upon

completion of the Activities, such excavations shall be back-

filled and the topsoil replaced without cost or expense to

Humer.

ll. Humer agrees that during the Activity Period (which

shall extend from the date of filing of this offer through termina-

tion of the Activities as hereinafter provided) Humer will

refrain from cultivating or otherwise disturbing the Beehunter

Site and will permit access thereto over the other lands of

Humer at points designated by Humer. Except for such access

routes, the Activities shall be conducted in such manner as not

to interfere with the farming and other operations of Humer

with respect to the balance of Humer’s adjoining lands.

12. Such Activities may be commenced at any time here-

after and may be continued from time to time under December

31, 1986, without further authorization from Humer. There-

after, such Activities may be continued, subject to the further

provisions hereof, unless and until Humer gives notice of termi-

nation as herein provided. Humer may, at any time subsequent

to December 31, 1986, give notice that it intends to commence

or cause to be commenced mining operations on Humer’s lands

of which the Beehunter Site is a part. Such notice shall be given

only if Humer has in fact good faith plans to commence or cause

to be commenced such mining, and the notice shall fix a day, not

sooner than 120 days after the gi

This text is long and has been trimmed here. Open the source document for the complete record.