Brief for the Respondents in Opposition — Mitchell Watson v. Kenlick Coal Company, Inc.

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f MICHAEL RODAK, JR. CLER

SUPREME COURT OF THE UNITED STATES

4 y i 1 4 >%

OCTOBER TERM, 1974 |

No. 74-294

MITCHELL WATSON,

WATSON,

IDA MAE MULLINS,

JUDGE WATSON,

OLGA WATSON,

MANILEA ROWE and

RANDOLPH WATSON - - - ~- Petitioners

KENLICK COAL COMPANY, INC.,

TIP TOP COAL COMPANY, INC.,

SHERMAN BAILEY,

LEXIE BAILEY,

J. W. HOWARD and

FLORENCE HOWARD - - — 8 Respondents

Petition For a Writ of Certiorari to the United States Court of

Appeals For the Sixth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

WILLIAM J. BAIRD —

Pikeville National Bank Building

Pikeville, Kentucky 41501

DONALD COMBS

First National Bank Building

Pikeville, Kentucky 41501

Attorneys for Respondents

WESTES@PIELD-BONTE c., INC., 619 w. KENTUCKY, LOUISVILLE, KY.

INDEX

PAGE

e i.iisi lb con lite ciet sin od. 1-2

Statement of the Case. 2-3

Reasons Why the Writ Should Not Be Granted...... 4-12

I. The Court of Appeals Was Clearly Correct in

Holding That Strip Mining By Respondents

Was Not a Taking of Petitioners’ Surface ir

Violation of Their Fifth and Fourteenth Amena-

pent TAOS no ve nc cncnciedacccdketbddehouc@esa 5- 8

II. Adverse Prior Decisions of State Court Are Not

Sufficient State Action to Attach Federal Juris-

J ĩðV⁊ bb PTE PIT TORE CL 9-10

III. State Regulations Not Sufficient State Action

to Confer Jurisdictio nun 11-12

PAGE

Buchanan v. Watson, Ky., 290 S. W. 2d 40. 5

Defiance Water Co. v. Defiance, 191 U. S. 184. 10

Evans v. Abney, 396 U. S. 435 (1970)............ 6

Martin v. Kentucky Oak Mining Co., Ky., 429 S. W.

J ] . ³·¹-¹ KKW. nn 5, 6, 7-8

Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972). 9, 11

Peabody Coal Co. v. Pasco, 452 F. 2d 1126 (6th Cir.

—— 1A 3 7

Publie Utilities Commission v. Pollak, 343 U. S. 451

een 0 Weaddele oe 08dhe vices 11

Roberts v. Twin Fork Coal Company, Ky., 223 F.

e. de. un 9-10

Shelley v. Kraemer, 334 U. S. 1 (1948)............ 9

v. Commonwealth of Kentucky, 209 U. S.

D ̃ ˙— JI oes bwndes 10

Tracy v. Ginzberg, 205 U. S. 170 (1907 )))7ͤ 6, 7, 10

Statutes Oited:

Kentucky Revised Statutes, Chapter 350. 11

96 UBC, Section 1843(8)..... 2... ccc ccc ccc cccces 9

, ouiplscvtvsssecvesdace 4, 5, 13

Constitutional Provisions Cited:

United States Constitution, Amendment V........ 5, 8

United States Constitution, Amendment XIV

SUPREME COURT OF THE UNITED sad

OCTOBER TERM, 1974

No. 74-294

2 5

MitcHELL WATSON,

MENIFEE WATSON,

| Iba Mag Mvtiins,

| JupGE WATSON,

OLGA WATSON,

| Manga Rowe and

RANDOLYH Watson - - ( - Petitioners

V.

| Ken ick Coat Company, INC.,

Tre Tor Coat Company, INc.,

SHERMAN BAILEY,

Lexie BAILey,

J. W. Howarp and

Fionence Howarp - - - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

| QUESTIONS PRESENTED

1. Whether the exercise of private mineral rights

by Respondents in strip mining coal underlying the

surface of Petitioners constitute a taking of property

2 ———Ä——˖—⁊rvr — — EAT EA ECCT COLELLO LIE

2

without just compensation in violation of the Fifth and

Fourteenth Amendments so as to establish jurisdic-

tion in the Federal District Court under 42 USC 1983

2. Whether Kentucky’s laws and regulations

regulating strip mining and/or decisions of the Court

of Appeals of Kentucky in unrelated cases, are suf-

ficient state involvement requisite to Federa! jurisdic-

tion under 42 USC 1983?

U

STATEMENT OF THE CASE

Petitioners own an undivided interest (less than all)

in the surface of a tract of land located in Magoffin

County, Kentucky. In 1905 the coal and mining rights

underlying this tract were sold by the remote predeces-

sors in title of Petitioners. The Respondents, the

Howards, are private citizens' who acquired such coal

by mesne conveyances from the original grantee. Re-

spondents, Kenlick Coal Co., Inc. and Tip Top Coal

Co. are lessees of the Howards and engaged in strip

mining one coal seam on the land. Respondents,

Baileys, are officers of the coal companies. The coal

companies were exercising, pursuant to their lease, such

mining rights as were owned by the Howards.

The essence of the complaint is that Respondents,

without the consent of Petitioners,’ strip mined the

. RET ee,

ssa ee cys Coat Sos ad

to this Petition.

surface was originally owned by Menifee Watson. Meni-

coal and that such mining destroyed the surfave which

constituted a denial of due process and a taking of the.

land without just compensation. Petitioners allega-

tion of state action is premised upon the issuance of

permits to strip mine by Kentucky and/or upon deci-

sions of the Court of Appeals of Kentucky in unrelated

cases.

Respondents were exercising rights granted to them

under the express terms of the 1905 severance deed.

This deed severed the mineral rights from the surface

estate thereby creating two distinct and separate estates

in the land. The deed conveyed all the coal in, on and

under the land, contained no limitations or prohibitions

on the method to be used to extract the coal, and con-

tained an express waiver of damages.“ Clearly, the

surface estate was subservient to the mineral estate.

The surface mining by Respondents was contour“

surface mining and not flat“ surface mining. In

contour mining the coal is stripped from along the

outerop of coal seams high on the hills and not from

flat surface, and such mining disturbs only that por-

tion of the surface along the outcrop of the coal seam

and disturbs only that portion of the surface hill land

necessary to remove the coal.

In eonducting their strip mining operations, Re-

spondents were exercising property rights which they

owned by virtue of the severance deed and for which

Petitioners’ predecessors in title had been paid.

The pertinent granting clause of the 1905 severance deed is

in the opinion of the Court of Appeals (App. A, Petition—

pp. 3(a)-5(a)). 0

4

REASONS WHY THE WRIT SHOULD NOT

BE GRANTED

The Court of Appeals was clearly correct in hold-

ing that the strip mining on Petitioners’ surface did

not deprive Petitioners of their property without due

process of law in violation of the Fifth and Fourteenth

Amendments of the United States Constitution and

that there was no such deprivation under color of state

law. Under the severance deed the predecessors in

title to Petitioners sold and gave up their right to pre-

vent Respondents from strip mining and thus they have

no such property rights which they now complain have

been taken from them.

The regulation of strip mining by Kentucky does

not constitute State action sufficient to support a claim

under 42 USC 1983. The Respondents’ right to strip

mine did not originate with the State of Kentucky but

originated from the rights acquired by the mineral

owner under the severance deed.

Furthermore, the State regulations do not en-

courage strip mining but in fact restrict it. The State

is not in any sense a partner“ or ‘‘joint venturer“ in

the strip mining, and the State laws and regulations

in no sense encourage such. Likewise, the decisions of

the Court of Appeals of Kentucky interpreting the

broad form’’ mineral deeds in unrelated cases (in

which Petitioners were not parties) is not sufficient

State action to support a claim under Section 1983.

The right to strip mine was a property right acquired

by the original grantee under the severance deed of

1905 and which right is now owned by Respondents.

5

To confer jurisdiction ia the Federal Court under

42 USC 1983, there must be both a deprivation of a

right secured to the Petitioners under the United States

Constitution and State action. Neither element is

present in this case.

L

The Court of Appeals Was Clearly Correct in Holding That

Strip Mining By Respondents Was Not a Taking of

Petitioners’ Surface in Violation of Their Fifth and

Fourteenth Amendment Rights.

The disturbance of Petitioners’ surface by the

mining operations of Respondents was not a taking of

property without due process. Respondents in their

mining operations were exercising rights owned by

them and acquired under the original severance deed.

Petitioners’ predecessors in title sold these rights and

were paid for them. Petitioners cannot now claim that

the exercise of these rights is an unlawful taking of

their surface since they did not, and do not, own the

rights which they complain have been taken“.

The Court of Appeals of Kentucky has consistently

held that the broad form’’ deed gives the mineral

owner the right to strip mine. Only if this right is

exercised in a wanton, oppressive, malicious or arbi-

trary manner, is the mineral owner subject to liability

to the surface owner. See Martin v. Kentucky Oak

Mining Co., 429 S. W. 2d 395, 399 (1968) ; Buchanan v.

Watson, 290 S. W. 2d 40, 43 (1956). And if mining is

conducted in such a wanton, oppressive, malicious or

arbitrary manner, the proper forum in an action for

6

redress is the State court and not the Federal Court—

absent diversity which is not present here.

As was said in Martin v. Kentucky Oak Mining Co.,

supra, ‘*. . . the mineral owner bought and paid for

the right to destroy the surface on good faith exercise

of the right to remove the minerals .’’ and con-

sequently there is no basis upon which there could

rest an obligation to pay damages for this right.“

Petitioners apparently contend that this interpreta-

tion of this type deed has denied them due process and

constitutes a taking without compensation. The

rationale of this argument is hard to follow. It seems

well-settled that the rights and liabilities under a deed

is a question of State law unless there is a violation of

the Constitution or laws of the United States. See

American Railway Express Co. v. Kentucky, 273 U. S.

269 (1927); Tracy v. Ginzberg, 205 U. S. 170 (1907);

Evans v. Abney, 396 U. S. 435, 439, 443-44 (1970).

Deeisions of State courts involving the ownership

of property, cannot be said to deprive the unsuecessful

party of property without due process simply because

his claim was denied. The Federal court cannot act

as a super legislature by setting aside the property law

of the state even though the Court might consider the

law unwise and harsh. The Kentucky Court in its deci-

sions interpreting the broad form“ deeds did no more

than apply well-settled general principles of Kentucky

law and there is nothing indicated to show that the

Court was motivated by an improper motive or that the

broad form deeds were treated any differently from

other deeds. Certainly there is nothing to suggest that

7

the Kentucky Court exercised its power arbitrarily or

capriciously. On this point, Mr. Justice Harlan, in

Tracy v. Ginzberg, supra, stated the following:

„The decision of a state court, involving nothing

more than the ownership of property, with all

parties in interest before it, cannot be regarded

by the unsuccessful party as a deprivation of

property without due process of law, simply be-

cause its effect is to deny his claim to own such

property . . Under the opposite view every

judgment of a state court, involving merely the

ownership of property, could be brought here for

review—a result not to be thought of. The

Fourteenth Amendment did not impair the author-

ity of the States, by their judicial tribunals, and

according to their settled usages and established

modes of procedure, to determine finally, for the

parties before it, controverted questions as to the

ownership of property, which did not involve any

right secured by the Federal Constitution, or by

any valid act of Congress, or by any treaty.”’

The Court of Appeals for the Sixth Circuit, in

Peabody Coal Co. v. Pasco, 452 F. 2d 1126, 1132 (6th

Cir. 1971) in discussing the decision of the Kentucky

Court of Appeals in Martin v. Kentucky Oak Mining

Co., supra, said:

„The court then considered some of the cir-

cumstances attending the execution of the ‘broad

form’ deed involved. It was noted that in 1900

only 17 per cent of the land in Knott County, where

the subject property was located, was improved

agricultural land. Much of the Martin tract was

’

hillside land and of no productive value. The

court weighed these facts against the argument

that no farmer would intend that his fields be de-

stroyed by mining operations. Also considered

was the fact that in 1900 the average value per

acre of land in Knott County was $2.90 while in |

1905 only the mineral rights to the Martin tract

were purchased for $3.00 per acre. The court ap-

parently considered the evidence that the full value

of the land haa been paid to the grantor in evaluat- |

ing the possibility that the original grantor in fact

intended to convey the complete use of the surface

and to retain bare title for whatever value it may

have. Another circumstance mentioned was the

fact that even in 1905 there were potential sources

of damage to the land from customary deep mining

methods. A final consideration examined by the

court was that under a ‘broad form’ deed the sur-

face owner reserved use of the land for agricultural

purposes only to the extent that such use was con-

sistent with the rights of the mineral owner. The

court considered this factor as evidence that agri-

cultural values were subordinated to mineral

values. After considering the particular circum-

stances surrounding the execution of the Martin

deed and the particular language of that deed the

court held that ‘the mineral owner bought and paid

for the right to destroy the surface in a good faith

exercise of the right to remove the minerals.’ 429

S. W. 2d at 399.”’

From the foregoing it is clear that there was no |

taking or invasion of Petitioners’ rights in violation

of the Fifth and Fourteenth Amendments of the United

States Constitution.

9

II.

Adverse Prior Decisions of State Court Are Not Sufficient

State Action to Attach Federal Jurisdiction.

It is recognized that a State court decision may be

sufficient State action to create a cause of action under

Sec. 1983. Shelley v. Kraemer, 334 U. S. 1, 14-18

(1948). Even then Federal jurisdiction is conferred by

28 U.S.C. 1343 (3) which is not pled or cited by Peti-

tioners. This principle was recognized in the recent

case of Moose Lodge No. 107 v. Irvis, 407 U. S. 163

(1922). However, as pointed out in the opinion of the

lower court (App. 18a-Petition) the distinguishing

feature in those State action cases is the fact that the

complaining party was a party to the State court pro-

ceedings. This is not the case here. Respondents have

never been a party to any State court proceeding where

the interpretation of a broad form deed similar to the

one in this case was at issue. State action cannot be

premised on the common law of a state as applied to

different parties and different issues. To do so would

be putting this court in the position of guessing or pre-

dicting the outcome of such a case.

Judge Swinford, in ᷑oberts v. Twin Fork Coal Com-

pany, 223 F. Supp. 752, in discussing the import of

Shelley v. Kraemer, supra, said:

The mere fact that the defendant finds comfort

in the Kentucky decisions condoning strip mining

in particular cases having no connection with the

present controversy does not make the State an

active participant in this case. Shelley v. Krae-

10

mer does not even intimate that state involvement

in a particular transaction may be found in the

fact that a state court decision in a similar but un-

related transaction has, by force of precedent, the

power to determine the legal consequences. The

petitioners in the federal phase of Shelley v. Krae-

mer were complaining of action by a state court

in a case to which they were parties and which was

specifically aimed at them. Here the plaintiff has

never been directly subjected to action by the Ken-

tucky Courts and his position is accordingly so dis-

similar to that of the petitioners in Shelley that

analogy between the two cases is imperceptible.

To hold otherwise would be to view the State an

active participant in any private conduct that has

consequences under the State common law and thus

to subject it to evaluation by the federal courts

according to its compliance with the Fourteenth

Amendment.“

A mere erroneous decision of a state court in the

regular course of judicial proceedings does not deprive

the unsuccessful party of property without due pro-

cess of law. American Railway Express Company v.

Kentucky, supra; Thompson v. Commonwealth of Ken-

tucky, 209 U. S. 340 (1927); Defiance Water Co. v.

Defiance, 191 U. S. 184, 193 (1903) ; Tracy v. Gineberg,

supra.

The Court of Appeals was correct in holding that the

decisions of the Court of Appeals of Kentucky are not

sufficient to constitute the necessary degree of state

involvement.

11

III.

State Regulations Not Sufficient State Action to

Confer Jurisdiction

Kentucky has extensively regulated strip. mining.

Kentucky Revised Statute, Ch. 350. The issuance of

strip mining regulations under KRS, Ch. 350, do not

in any manner foster or encourage strip mining. If

anything the regulations restrict and often proscribe

such mining. The ownership of the minerals and ap-

purtenant rights to mine are derived not from state

law and regulations, but from the mineral severance

deed.

To hold that such state regulations constitute state

action would be stretching the ‘‘state action’’ concept

very thin, in which event it would be expected the Fed-

eral courts would be inundated with cases arising out

of such, or similar, state action.

As noted in the opinion of the Court of Appeals

(App. 15a and b, Petition), Petitioners apparently

consider that state action cannot be premised on a

partnership, governmental function or entwinement

theory, but seek to rely upon the ‘‘encouragement”*

theory and contend that the issuance of permits to

strip mine is sufficient state action. They rely prin-

cipally on Moose Lodge No. 107 v. Irvis, supra, and

Public Utilities Commission v. Pollak, 343 U. S. 451

(1952).

The principles enunciated in the above cases offer

no comfort to Petitioners. The right to strip mine did

not originate with the State of Kentucky but had its

12

origin in the mineral severance deed. Kentucky’s laws

are not aimed at the alleged wrong, nor do they en-

courage strip mining. The effect of these laws is to

narrow and restrict Respondents’ rights under the deed,

which inures to the benefit of the surface owners.

The Court of Appeals was correct in holding that

Kentucky’s environmental laws and regulations are

not sufficient to constitute the lr degree of state

involvement.

13

CONCLUSION

The jurisdictional elements required to create a

cause of action under 42 USC §1983 do not exist in this

case. Tnere is no taking“ of the land of Petitioners

within the meaning of either the Fifth or Fourteenth

Amendments. The Petitioners have not availed them-

selves of the natural forum—the Courts of Kentucky—

on the ground that prior decisions of that forum would

render their efforts futile. Neither the decisions of the

Kentucky Court of Appeals interpreting property

rights under mineral severance deeds adverse to the

contention of Petitioners nor the regulations of mining

by the State of Kentucky can support a claim of state

action”’ within the meaning of Section 1983.

For the foregoing reasons, Respondents say that the

Petition for a Writ of Certiorari should be denied, it

is

Respectfully submitted, he

WILIA J. Bairp :

Pikeville National Bank Building

Pikeville, Kentucky 41501

Dora Couns

First National Bank Building

Pikeville, Kentucky 41501

Attorneys for Respondents