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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0840%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1078

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0840%3A3. Public record. Not legal advice.