Reply Brief — Indiana Coal Council, Inc. v. Indiana Department of Natural Resources

No. 89-1026 —

In THE JOSEPH F. SPaniga,

Ont

Supreme Court of the United States—

OE, 0,

October Term, 1989

INDIANA CoAL CounCcIL, INC.

AND HUNTINGBURG MACHINERY &

EQUIPMENT RENTAL, INC.

Petitioners,

US.

INDIANA DEPARTMENT OF NATURAL

RESOURCES, WABASH VALLEY

ARCHAEOLOGICAL Society, INC., AND

COUNCIL FOR THE CONSERVATION OF

INDIANA ARCHAEOLOGY, INC.

Respondents.

On Petition for a Writ of Certiorari to

the Supreme Court of Indiana

PETITIONERS’ REPLY BRIEF

G. Daniel Kelley, Jr.

Counsel of Record

Edward P. Steegmann

Of Counsel:

ICE MILLER DONADIO & RYAN

One American Square, Box 82001

Indianapolis, Indiana 46282

(317) 236-2100

James W. Buthod

BUTHOD & BUTHOD

1119 Lincoln Avenue,

P.O. Box 2298

Evansville, Indiana 47714

(812) 423-5261

Counsel for Petitioners

=—s_——SS=Sss=_s_s_=====_a»E__EE__=_=================__=_™™=a_]]_]"=a[__—_=_=_=_=_______—_—_

Graphics LTD.. Indianapolis, Indiana 46202

x

4 “ A a

3 : 2 LF - > e £. ¥ ty”

Fa A oye si Meee, FE Md inet a b> Balen eta he. bee eee he ¥ seit Bs

state * ¥s : - ; « Soe he a .

: “ee r . 4 — =. ’ PF € Ss Ss) 6 <5 : ; bs

7 - ¢ , ¥ ; d wee Aye @ r

. word 7 , & ‘ My, Bs af it aT ist Fe hy tat eer te Ste Bay . ESP) aay

«> 3 4 ‘ , . t - - v ; 3

- x “* ‘ 9 ’ os

: 4 40 “? + , Af é

Fe 9 hs 4 ete oa F ts ps pleut x9 tin? eS ang -

os a fe ts a ; ws 4

: ?

‘+ ~ ¢ -

2 4

, ‘ ’

tt ~

"

7

brs. vay

t ‘ ;

e 4 4 > *

;

3

- ;

- ? 4

, dZ "

Se: ‘

é fs ‘ 4 i , P

“4 't . 2 & - wad - aye t

a# Bit Dupe Ss i

se fo

- pe Ee : tr tua rt

ALEVE SUE IG INE «RELI oa

Fr aw ve 7? SM

FER t7

; teh

ey

att,

6. vices £ ww Fe

Piet GE se FD

sig, FET

FD es te gil cle ip nn tare te Bos

PETITIONERS’ REPLY BRIEF

The primary issue on this Petition is whether the opinion of

the Indiana Supreme Court in determining the takings issue,

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

825 (1987). Petitioners! have demonstrated that the Indiana

court’s opinion thoroughly emasculates Nollan. Respondent

does not mention, much less discuss, any of these violations of

Nollan, thereby tacitly admitting the validity of the Petition.

Indeed, by arguing only that the Indiana court reached the

right result and totally ignoring the Indiana court’s method of

analysis, Respondent expressly admits at least two of the

Indiana court’s conflicts with Nollan. First, Respondent

acknowledges Noilan’s requirement that a condition to

removal of a land use restriction, requiring a landowner’s cofi-

sent to an otherwise per se take, must at least serve the “same”

legitimate state interest as does the restriction itself.

[Response at 7] However, the Indiana court at best required

that the ends need only be “consistent” with each other. | App.

at 9 & 11] Second, Respondent accepts, as it must, that Nollan

requires a level of judicial scrutiny higher than a rational basis

in making the determination of the “same” ends. | Response at

9} Again, the Indiana court simply rejected this requirement’s

applicability to the case at bar reasoning that Nollan’s height-

ened scrutiny was applicable only to a condition to the removal

of the land use restriction requiring an “actual conveyance of

property,” and not to conditions requiring consent to other -

types of per se takes. [App. at A10]

Finally, Respondent asserts that regardless of the applicable

level of scrutiny the condition and the land use restriction in the

case at bar serve the same end — preservation, and argues,

using Nollan’s required analysis, that the Indiana court

reached the right result. However, even the Indiana court

found that it was the cultural “knowledge” which enhances the

general welfare [App. at A8], which knowledge, of course, is

! Petitioners have no parent companies, non-wholly owned subsidiaries or

affiliates to list pursuant to Rule 29.1.

tw

only possible through excavation and destruction of the Site.

This is not pure preservation. No doubt, the Indiana court's

recognition that the ends of the condition and of the land use

restriction were not the same, led the Indiana court to adopt

the requirement that the ends need only be “consistent” with

each other. [App. at Al1].

To say that acquisition of the cultural “knowledge” is the

“same” as pure preservation, where acquisition of the know]-

edge requires destruction of the area to be preserved, is to

make a mockery of judicial scrutiny regardless of the applicable

level of scrutiny. The result reached by the Indiana court, that

of de facto condemnation of archaeologic knowledge without

compensation, cannot be sustained if the dictates of Nollan are

properly followed and applied.

Based on the many conflicts with No//an and the undisputed

national import of the Indiana court’s decision pursuant to the

26 other states’ statutes under SMCRA, certiorari should be

granted.

Respectfully submitted,

G. Daniel Kelley, Jr.

Counsel of Record

Edward P. Steegmann

Of Counsel:

ICE MILLER DONADIO & RYAN

One American Square

Box 82001

Indianapolis, Indiana 46282

(317) 236-2100

James W. Buthod

BUTHOD & BUTHOD

1119 Lincoln Avenue

P.O. Box 2298

Evansville, Indiana 47714

($12) 423-5261

Counsel for Petitioners