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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1078

## Text

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

A-3

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

_

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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
fi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0840%3A1. Public record. Not legal advice.