Appendix — Genstar Stone Products Co. v. Maryland

Supreme Court brief1995

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IN THE

Supreme Court of ‘the’ United States

October Term, 1994

GENSTAR STONE PRODUCTS COMPANY, et al.

Petitioners,

STATE OF MARYLAND, et al

Respondents.

On Petition For A Writ of Certiorari

To The Court of Appeals of Maryland

APPENDIX

Richard A. Reid

Counsel of Record

Royston, Mueller, McClean & Reid

102 W. Pennsylvania Avenue

Towson, MD 21204

William A. Franch

Franch & Jarashow, P. A.

111 Cathedral Street

P.O. Box 827

Annapolis, MD 21404

Attorneys for Petitioners

('7

APPENDIX

ORDER OF COURT TO BE REVIEWED

MARYLAND AGGREGATES eS In the

ASSOCIATION, INC.

et al. & Court of Appeals

Vv. 8 of Maryland

STATE OF MARYLAND & No. 40

et al.

8 September Term,

1994

ORDER

For reasons to be stated in an

opinion later to be filed, it is this 7th

day of November, 1994,

ORDERED, by the Court of Appeals of

Maryland, a majority of the Court

concurring, that the judgment of the

Circuit Court for Anne Arundel County is

affirmed; and it is further

ORDERED, that the injunction issued

on August 16, 1994 by the Circuit Court

for Anne Arundel County prohibiting the

State from implementing the statute in

question while the appeal was pending be,

and it is hereby, vacated, and it is

further

ORDERED, that the mandate shall

issue forthwith and the costs shall be

paid by the appellants.

Zs/ Robert C,. Murphy

Chief Judge

OPINION OF COURT TO BE REVIEWED

IN THE COURT OF APPEALS OF MARYLAND

No. 40

September Term, 1994

MARYLAND AGGREGATES

ASSOCIATION, INC. et al.

Vv.

STATE OF MARYLAND

Murphy, C.J.

Eldridge

Rodowsky

Chasanow

Karwacki

Bell

Raker,

JJ.

Opinion by Eldridge, Jd.

Filed: March 22, 1995

This case presents several consti-

tutional challenges to Maryland Code

(1973, 1989 Repl. Vol., 1994 Cum. Supp.),

§§ 7-6A-10.1 and 7-6A-10.2 of the Natural

Resources Article, which relate to the

appropriation of water in connection with

certain surface mining operations.

Any individual, business, or

governmental entity in Maryland “which

may appropriate or use any waters of the

State, whether surface water or

groundwater," must first Obtain a water

appropriation permit from the Department

of Natural Resources. Code (1973, 1990

Repl. Vol.), § 8-802 of the Natural

Resources Article.+/ A surface mine

must have a water appropriation permit to

Pump away water that would otherwise

accumulate in the mine. The pumping

eee essen

i/ An exception is made for certain

domestic and small Scale agricul-

tural uses. Maryland Code (1973,

1990 Repl. Vol.), § 8-802(b) of the

Natural Resources Article.

process is known as "dewatering."

Surface mine dewatering removes

groundwater, rainfall and other surface

water runoff from the surface mine pit.

If the rock to be mined lies beneath the

water table, the mine operator must pump

away a sufficient quantity of water to

lower the water table around the pit.

Several Maryland counties include

areas of karst terrain. In karst

terrain, pockets of limestone and other

carbonate rocks are slowly dissolved by

water flowing or percolating underground,

leaving behind underground cavities and

2/ "“*pewater' or ‘dewatering’ means to

pump water out of a pit." Code

(1974, 1989 Repl. Vol., 1994 Cum.

Supp.), § 7-6A-10.2(a)(2) of the

Natural Resources Article.

and channels. =” Increasing the rate of

water flow, for example by pumping,

accelerates the formation of underground

ch -~nnels and of sinkholes.

The legislation challenged in this

case, §§ 7-6A-10.1 and 7-6A-10.2 of the

Natural Resources Article, is intended to

Protect landowners in karst terrain from

the effects of surface mine dewatering.

During the legislative process, the

General Assembly received testimony from

over fifty individuals, both lay and

expert, and considered a number of

3/7 Karst terrain is defined in the Act

as follows (§ 7-6A-10.2(a)(3)):

""Karst terrain’ means an

irregular topography that is

[c]aused by a solution of

limestone and other carbonate

rock; and ... [c]Jharacterized by

Closed depressions, sinkholes,

Caverns, solution cavities, and

underground channels that,

partially or completely, may

Capture surface streams."

technical reports concerning the effects

of surface mine dewatering in karst

terrain. Groups opposed to the proposed

legislation, principally enterprises

involved in surface mining, and groups

pressing for its adoption, principally

individual property owners and community

associations from regions close to

quarries, each engaged in vigorous

lobbying. Ultimately, the General

Assembly enacted the legislation

regulating surface mine dewatering in

karst terrain.

The Act contains the following

legislative findings (§ 7-6A-10.1(a)):

“[IJ]n certain regions of the

State dewatering of surface

mines located in karst

terrain may significantly

interfere with water supply

wells and may cause in some

instances sudden subsidence

of land, known as sinkholes.

Dewatering in karst

terrain may result in

property damage to

landowners in a definable

zone of dewatering

influence around a surface

mine."

The Act wrotects “affected property

owners in Saltimore, Carroll, Frederick,

and Washington Counties where karst

terrain is found,” by establishing “zones

of dewatering influence around surface

mines ...." § 7-6A-10.1(b). The

Department of Natural Resources must

establish the zone of dewatering

influence when it issues the water

appropriation permit for dewatering to

the operator of a surface mine affected

by the Act. § 7-6A-10.2(b)(1). The

Department must scientifically determine

the area affected by the mine's pumping

activity, based on “local topography,

watersheds, aquifer limits, and other

hydrogeologic factors. .- - se

7-6A-10.2(b) (2).

The statute contemplates that the

zone of dewatering influence may extend

beyond the land owned by the mining

operation itself. Accordingly,

subsection (c)(1) of § 7-6A-10.2 provices

that, within the zone of dewatering

influence, mine operators must

“[rleplace, at no expense to the owner

real property that is affected by the

that fails as a result of declining

ground water levels. .. ." An exception

is made where the failure of the water

supply is not caused by the surface mine

operation (§ 7-6A-10.2(f£)):

“The Department may not

require a [mine operator] to

replace water supplies, as

provided in this section, if

the [mine operator] demon-

strates to the Department by

10a

clear and convincing

evidence that the proximate

cause of the loss of water

supply is not the result of

pit dewatering.”

The Act also establishes a scheme to

compensate landowners for sinkhole damage

that occurs within the zone of dewatering

influence. Subsection (c)(2) of §

7-6A-10.2 provides as follows:

"Upon a determination by the

Department of proximate cause

after the [mine operator] has

received proper notice and an

opportunity to respond and

provide information, [the mine

operator shall] pay monetary

compensation to the affected

property owner or repair any

property damage caused as a

result of the sudden subsi-

dence of the surface of the

land."

Furthermore, the Act directs the

Department to create, by regulations, an

administrative process for resolving

claims brought under the Act, §

7-6A-10.2(h), and requires the Department

lla

to “provide opportunity for a contested

case hearing,” § 7-6A-10.2(q).

II.

This litigation was commenced by

Maryland Aggregates Association, Inc., an

organization that represents the

interests of the surface mining industry,

and by the individual operators of hard

rock quarries located in karst terrain in

Baltimore, Carroll, Frederick and

Washington Counties .2” Maryland

Aggregates filed suit in the Circuit

Court for Anne Arundel County on July l,

1991, the day after the Act took effect,

naming as defendants the State of

Maryland, the Governor, the Attorney

General, and the Secretary of the

4/ For convenience, we shall in this

opinion refer to all of the plain-

tiffs collectively as “Maryland

Aggregates.”

12a

Department of Natural Resources.

Maryland Aggregates sought a declaratory

judgment holding the Act unconstitutional

on a number of grounds and an injunction

against the enforcement and implementa-

tion of the Act.

In the circuit court, Maryland

Aggregates contended that the Act

violated numerous provisions of the

Constitution of the United States and of

the Constitution of Maryland. It

contended that the Act violated its right

to “substantive due process” because

there was no rational basis for the

legislation. It argued that the Act

2/ Four individual owners of property

near quarry sites were later

permitted to intervene as

defendants. These individuals were

represented by the Clinical Law

Office at the University of

Maryland School of Law.

13a

violated equal protection principles by

making an unreasonable distinction

between quarry operators and other large

water users. Maryland Aggregates also

claimed that the statute denied equal

protection of the laws to the residents

of the nineteen Maryland counties

unaffected by the Act. The plaintiffs

argued that the Act interfered with mine

operators’ constitutional rights to jury

trial and deprived them of their property

without just compensation. They

contended that the statutory procedures

for establishing zones of dewatering

influence and for resolving claims under

the Act were constitutionally deficient.

Finally, Maryland Aggregates argued that

the Act impermissibly granted judicial

powers to an administrative agency in

violation of the separation of powers

14a

requirement set forth in Article 8 of the

Maryland Declaration of Rights.

The State responded to Maryland

Aggregates’ constitutional arguments on

their merits, and also contended that the

State of Maryland, the Governor and the

Attorney General were not proper parties

to the litigation.

On March 9, 1992, the Circuit Court

for Anne Arundel County granted Maryland

Aggregates’ motion for an interlocutory

injunction against the enforcement of the

Act. On March 7, 1994, however, the

circuit court granted summary judgment in

favor of the defendants, and filed a

declaratory judgment rejecting all of

Maryland Aggregates’ constitutional

contentions. The circuit court also

agreed that the Secretary of the

Department of Natural Resources was the

Ne ee ere On We Me

15a

&/ Maryland

only proper defendant.

Aggregates appealed to the Court of

Speciai Appeals and, before any

proceedings in the intermediate appellate

court, petitioned this Court for a writ

of certiorari, raising the same consti-

tutional objections to the Act that it

had pressed at trial. We granted

Maryland Aggregates’ petition. 335 Md.

341, 643 A.2d 441 (1994).

Meanwhile, in light of the circuit

court's declaratory judgment in favor of

the State, the Department of Natural

6/ Maryland Aggregates concedes that

“the lower court's ruling on this

point does not affect the outcome

of this case. .. .” (Maryland

Aggregates’ brief at 45 n. 7).

Accordingly, we do not decide in

the present case whether the

defendants other than the Secretary

of the Department of Natural

Resources were proper parties to

the litigation.

l6a

Resources had begun to enforce the Act.

Aggrieved by the Department's activity,

Maryland Aggregates filed in the circuit

court a further motion for an injunction

against enforcement of the Act pending

appeal. On August 16, 1994, observing

that the case had been set for argument

in this Court in early November 1994, the

circuit court granted Maryland

Aggregates’ motion and enjoined enforce-

ment of the Act pending appeal. This

Court deferred action on the State's

subsequent motion to dissolve, suspend,

modify or stay the injunction until oral

argument took place on November 6, 1994.

On November 7, 1994, this Court entered

an order affirming the judgment of the

Circuit Court for Anne Arundel County and

vacating the injunction. We now set

forth the reasons for our earlier order.

17a

iii.

Maryland Aggregates first contends

that the Act violates the Due Process

Clause of the Fourteenth Amendment to the

federal constitution and Article 24 of

the Maryland Declaration of Rights

because, according to Maryland

Aggregates, there was no rational basis

for its enactment. The General

Assembly found as a fact that “dewatering

Lys Article 24 of the Maryland

Declaration of Rights provides as

follows:

"That no man ought to be taken

or imprisoned or disseized of

his freehold, liberties or

privileges, or outlawed, or

exiled, or, in any manner,

destroyed, or deprived of his

life, liberty, or property, but

by the judgment of his peers, or

by the Law of the land.”

(continued...)

18a

of surface mines located in karst terrain

may significantly interfere with water

supply wells and may cause in some

instances sudden subsidence of land,

known as sinkholes." § 7-6A-10.1(a) of

the Natural Resources Article. None-

theless, Maryland Aggregates maintains

that it should be given an opportunity to

prove at trial that quarries cause

neither water supply failures nor

sinkholes, and that “there was no evil at

hand for correction” by the Legislature.

(Maryland Aggregates’ brief at 11).

T/ (...continued)

The Fourteenth Amendment to the

United States Constitution

provides, in part, as follows:

"nor shall any State deprive

any person of life, liberty,

Or property, without du

process of law

19a

Maryland Aggregates characterizes

its disagreement with the legislative

findings as a dispute of material fact

which should have precluded the entry of

summary judgment. The circuit court,

however, held that “[t]he Defendants are

not required to prove the wisdom of the

statute as a matter of law... but only

that there is a rational basis for the

statute as a matter of law.” Since the

court held that “[t]he Maryland General

Assembly had a substantial rational basis

to pass the Act," it granted summary

judgment for the State on the so-called

substantive due process contention.

This Court in Bowie Inn v. City of

Bowie, 274 Md. 230, 236, 335 A.2d 679,

683 (1975), in rejecting a similar

“substantive due process” challenge to

economic regulatory legislation, empha-

20a

sized that “[t]he wisdom or expediency of

a law adopted" by a legislative body “is

not subject to judicial review, and the

law will not be held void if there are

any considerations relating to the public

welfare by which it can be supported."

Accord: Dawson v. State, 329 Md. 275,

283-284, 619 A.2d 111, 115 (1993); Ogrinz

v. James, 309 Md. 381, 394-395, 524 A.2d

77, 84 (1987); Montgomery County v.

Fields Road, 282 Md. 575, 583-585, 386

A.2d 344, 348-349 (1978); Edgewood

Nursing Home v. Maxwell, 282 Md. 422,

426-427, 384 A.2d 748, 751 (1978);

Governor v. Exxon Corp,, 279 Md. 410,

423-429, 370 A.2d 1102, 1110-1113 (1977),

aff'd, 437 U.S. 117, 98 S.Ct. 2207, 37

L.Ed.2d 91 (1978); Westchester West No. 2

v. Mont. Co,, 276 Md. 448, 454-455, 348

A.2d 856, 860 (1975), and cases there

ha ah

21a

cited. See also General Motors Corp, v.

Romein, 503 U.S. 181, 112 S.Ct. 1105,

1112, 117 L.Ed.2d 328, 340 (1992);

Ferguson v. Skrupa, 372 U.S. 726, 83

S.Ct. 1028, 10 L.Ed.2d 93 (1963);

Williamson v. Lee Optical Co., 348 U.S.

483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

In Bowie Inn v. City of Bowie,

supra, 274 Md. 230, 335 A.2d 679, as in

the present case, industry representa-

tives whose lobbying efforts had failed

to prevent the enactment of legislation

adverse to their interests, later

challenged the legislation in court.

Concluding that the plaintiffs in Bowie

Inn were, “in effect, asking us to

substitute our judgment concerning the

wisdom of [the challenged ordinance] for

that of the City Council of Bowie," this

Court sustained the ordinance against the

22a

due process challenge. 274 Md. at 236,

335 A.2d at 683.

More recently the Supreme Court, in

rejecting a similar due process challenge

to a Michigan statute, stated (General

Motors Corp. v. Romein, supra, 112 S.Ct.

at 1112, 117 L.Ed.2d at 340):

“Having now lost the battle in

the Michigan Legislature,

petitioners wished to continue

the war in court. Losing a

political skirmish, however, in

itself creates no ground for

constitutional relief."

Likewise, having failed to convince

the General Assembly of the merits of its

position, Maryland Aggregates seeks to

present its theories in court. Neverthe-

less, “‘courts do not substitute their

social and economic beliefs for the

judgment of legislative bodies, who are

elected to pass laws.'” Governor v,

Exxon Corp., supra, 279 Md. at 425, 370

23a

A.2d at 111, quoting Ferguson v, Skrupe,

supra, 372 U.S. at 730, 83 S.Ct. at 1031,

10 L.Ed.2d at 97. In particular, factual

determinations made by a legislative body

are not ordinarily subject to review in

the courts. Even in the absence of

legislative findings, “the legislature is

presumed to have acted within constitu-

tional limits so that if any state of

facts reasonably can be conceived that

would sustain the constitutionality of

4 the statute, the existence of that state

of facts as a basis for the passage of

the law must be assumed." Edgewood

Nursing Home v. Maxvell, supra, 282 Mad.

at 427, 384 A.2d at 751.

As Judge Cawood for the circuit

court observed in the present case, the

General Assembly heard testimony from

geological experts, from representatives

24a

of the mining industry, and from

concerned citizens and environmental

groups. After briefly summarizing the

conflicting testimony, Judge Cawood

pointed out as follows:

“Needless to say, we do

not decide whether

Plaintiffs’ or Defendants’

experts are more likely to

be correct. The proper

forum for that is the

Legislature. In passing

almost any law, one can

argue whether it has a

rational basis, and which

experts were really correct

Or really told the truth.”

The circuit court properly deferred to

the General Assembly's legislative

findings. In Bowie Inn v, City of Bowie,

Supra, this Court explained why judicial

review of legislative decision making

must be narrowly circumscribed. Quoting

from Justice Frankfurter's concurring

opinion in American Federation of Labor,

v. American Sash & Door Co,, 335 U.S.

25a

538, 553, 69 S.Ct. 258, 265, 93 L.Ed.

222, 230-231 (1949), the Court in Bowie

Inn stated as follows (274 Md. at 238,

335 A.2d at 684):

“"Even where the social

undesirability of a law may be

convincingly urged, invalida-

tion of the law by a court

debilitates popular democratic

government. Most laws dealing

with economic and social

problems are matters of trial

and error. That which before

trial appears to be demon-

strably bad may belie prophesy

in actual operation. It may

not prove good, but it may

prove innocuous. But even if a

law is found wanting on trial,

it is better that its defects

should be demonstrated and

removed than that the law

should be aborted by judicial

fiat. Such an assertion of

judicial power deflects respon-

sibility from those on whom in

a democratic society it

ultimately rests -- the

people.‘”

See also Governor v. Exxon Corp., supra,

279 Md. at 428-429, 370 A.2d at 1113.

In light of these principles,

26a

Maryland Aggregates’ disagreement with

the factual findings of the General

Assembly does not create an issue of fact

which is material to the Act's validity

under the due process clauses of the

federal and state constitutions. As the

circuit court pointed out, the question

is not whether the General Assembly was

correct; it is whether it was entitled to

reach the conclusions embodied in the

statute. The surface mine dewatering act

establishes a compensation scheme for

affected landowners that obviously bears

a rational relationship to a problem that

the General Assembly identified for

redress. Under these circumstances,

there is simply no basis upon which a

court could conclude that the Act was

beyond the authority of the General

Assembly. The circuit court properly

27a

granted summary judgment in favor of the

State with respect to Maryland

Aggregates’ substantive due process

argument.

IV.

Maryland Aggregates next contends

that the Act employs classifications that

violate the Equal Protection Clause of

the Fourteenth Amendment and the equal

protection component of Article 24 of the

Maryland Declaration of Rights.

8/ In

Section I of the Fourteenth

Amendment to the United States

Constitution includes the following

guarantee: “No State shall

deny to any person w'thin its

jurisdiction the equal protection

of the laws.” While Article 24 of

the Maryland Declaration of Rights

does not contain an express equal

protection clause, it nonetheless

embodies the concept of vg 08

protection. See Verzi v. Baltimore

County, 333 Md. 411, 417, 635 A.2d

(continued...)

28a

particular, Maryland Aggregates complains

that “quarries have been unfairly singled

out” from other large consumers of

groundwater in a manner that violates

8/ (...continued)

967, 969-970 (1994); Kirsch v.

Prince George's County, 331 Md. 89,

96, 626 A.2d 372, 375, cert.

denied, 114 S. Ct. 600, 126 L. Ed.

2d 565 (1993); Murphy v. Edmonds,

325 Md. 342, 353-354, 601 A.2d 102,

107 (1992), and cases there cited.

Furthermore, although the federal

and state guarantees of equal

protection are “obviously

independent and capable of

divergent application," they are

sufficiently similar that Supreme

Court decisions applying the

federal clause provide persuasive

authority for this Court's

application of Article 24. Murphy

v. Edmonds, supra, 325 Md. at

354-355, 601 A.2d at 108,

29a

equal protection principles.2/

2/ Maryland Aggregates also

suggests that the Act violates

equal protection principles because

it affects only four Maryland

counties. It is clear from our

cases, however, that “[a] statute

‘ is not invalid merely because

it affects counties unequally

= Equal protection

principles do not require the State

to attack all of the various

aspects of a problem at once; the

government may legislate to remedy

one phase of a problem and leave

other phases to be resolved later."

Department of Transportation v,

Armacost, 299 Md. 392, 408-409, 474

A.2d. 191, 199 (1984). See also

McGowan v. Maryland, 366 U.S. 420,

81 S.Ct. 1101, 6 L.Ed.2d 393

(1961); Supermarkets Gen. Corp, v,

State, 286 Md. 611, 409 A.2d 250

(1979), appeal dismissed, 449 U.S.

801, 101 S.Ct. 45, 66 L.Ed.2d 5

(1980); Washabaugh v. Washabaugh,

285 Md. 393, 404 A.2d 1027 (1979).

While this Court has invalidated

territorial classifications on

equal protection grounds, it has

generally done so where the

legislative classifications

restricted access to economic

opportunities, or imposed economic

burdens, in a manner tending to

favor residents of one county over

residents of another. See

generally Verzi v. Baltimore

(continued...)

30a

“When social or economic

legislation is at issue, the Equal

Protection Clause allows the States wide

latitude . . . and the Constitution

presumes that even improvident decisions

will eventually be rectified by the

democratic processes.” Cleburne v,

Cleburne Living Center, Inc., 473 U.S.

432, 440, 105 S.Ct. 3249, 3254, 87

L.Ed.2d 313, 320 (1985). Thus,

2/7 (...continued)

County, supra, 333 Md. 41l, 635

A.2d 967, and cases there cited;

Bruce v. Dir., Chesapeake Bay Aff.,

261 Md. 585, 276 A. 2d 200 (1971);

Md, Coal Etc, Co, v, Bureau of

Mines, 193 Md. 627, 69 A.2d 471

(1949); Dasch v, Jackson, 170 Md.

251, 183 A. 534 (1936); Havre de

Grace v. Johnson, 143 Md. 601, 123

A. 65 (1923). The present case

does not involve such a classifi-

cation, and Maryland Aggregates’

equal protection challenge to the

limited territorial scope of the

Act is without merit.

3la

Classifications drawn by economic

regulatory legislation are ordinarily

permissible under equal protection

principles if they bear a rational

relationship to a legitimate state

interest .22/ The Supreme Court

recently explained the scope of rational

basis review under the Equal Protection

Clause in F,.C.C., v, Beach Communications,

10/ Maryland Aggregates argues that

the Act should be subjected to a

heightened standard of review

because it implicates the “very

important and valuable right,”

under common law principles,, of a

landowner to use percolating water

“without fear of liability for the

consequences thereof upon their

neighbors.“ (Maryland Aggregates’

brief at 16). For the reasons

fully set forth in Murphy v.

Edmonds, supra, 325 Md. at 362-364,

601 A.2d at 112, there is no merit

to Maryland Aggregates' contention

that legislation affecting a common

law right should be subject to

heightened scrutiny.

32a

Inc., 113 S.Ct. 2096, 2101, 124 L.Ed.2d

211, 221 (1993), as follows:

“CE]qual protection is not a

license for courts to judge

the wisdom, fairness, or

logic of legislative

choices. In areas of social

and economic policy, a

statutory classification

that neither proceeds along

suspect lines nor infringes

fundamental constitutional

rights must be upheld

against equal protection

challenge if there is any

reasonably conceivable state

of facts that could provide

a rational basis for the

classification. .. . This

standard of review is a

paradigm of judicial

restraint."

See also Briscoe Vv. P.G, Health Dep't,

323 Md. 439, 448-449, 593 A. 2d 1109,

1113-1114 (1991); Hargrove Vv. Board of

Trustees, 310 Md. 406, 423, 529 A.2d

1372, 1380 (1987), cert, denied, 484 U.S.

1027, 108 S.Ct. 753, 98 L.Ed.2d 766

(1988); Broadwater v. State. 306 Md. 597,

607, 510 A.2d 583, 588 (1986); State v.

Wyand, 304 Md. 721, 726-727, 501 A.2d 43,

46 (1985), cert. denied, 475 U.S. 1095,

106 S.Ct. 1492, 89 L.Ed.2d 893 (1986);

Department of Transportation v. Armacost,

299 Md. 392, 409, 474 A. 2d 191, 199

(1984); State v. Good Samaritan Hospital,

299 Md. 310, 328, 473 A.2d 892, 901,

appeal dismissed, 469 u.S. 802, 105 S.Ct.

56, 83 L.Ed.2d 7 (1984).

According to Maryland Aggregates,

the Act deprives the operators of surface

mines of the equal protection of the laws

35a

because it fails to regulate other large

appropriators of water. In light of the

foregoing legal principles, it is

apparent that this constitutional

challenge to the Act lacks merit. The

legislative distinction between quarries

and other large water users is not an

irrational one. The General Assembly

received evidence that quarries have

certain unique features with respect to

water use. Quarries pump large amounts

of water at a constant pace. Quarries

cannot interrupt their pumping if

emergency water conditions arise, since

the pit might flood. Moreover, since a

quarry must pump water where it wishes to

extract rock, a quarry cannot move its

pumping site if its appropriation of

Groundwater begins to damage the

surrounding area.

36a

Furthermore, even if surface mines

were not distinguishable from other water

users on the basis of such physical

facts, the Legislature could have limited

the statute to surface mines for other

reasons. The General Assembly might have

concluded, for example, that surface

mines constituted a discrete and

manageable group around which to develop

and test an effective compensation

scheme, or that a mining operation would

be more likely than another water user to

have relevant hydrogeological data at

hand. It is not necessary to identify

the reasons that actually prompted the

General Assembiy to legislate as it did.

Plainly, the decision to regulate the

effects of surface mine dewatering can be

justified on a number of grounds. The

Act does not violate constitutional

37a

guarantees of equal protection, and the

circuit court correctly granted summary

judgment in favor of the State with

regard to Maryland Aggregates' equal

protection contentions.

Maryland Aggregates next argues

that the Act violates the constitutional

principle of separation of powers .++/

The statute requires a mine Operator

replace failed water supplies within the

zone of dewatering influence, unless the

1l/ Article 8 of the Maryland

Declaration of Rights provides as

follows:

“That the Legislative, Executive

and Judicial powers of

Government ought to be forever

separate and distinct from each

other; and no person exercising

the functions of one of said

Departments shall assume or

discharge the duties of any

other.”

38a

operator can demonstrate to the

Department of Natural Resources that pit

dewatering did not cause the water supply

failure. § 7-6A-10.2(c)(1) and (f£) of

the Natural Resources Article. Further-

more, mine operators must compensate

property owners for sinkhole damage

within the zone of dewatering influence

if the Department determines that the

damage was caused by surface mine

dewatering. § 7-6A-10.2(c)(2) of the

Natural Resources Article. Maryland

Aggregates objects to this method of

determining its liability under the Act,

arguing that “the Legislature, in

authorizing the Department of Natural

Resources to sit as the sole fact finder

and judge in a dispute between neigh-

boring property owner and quarry

operator, has displaced the judicial

39a

branch of government in violation of

Article 8." (Maryland Aggregates‘ brief

at 26). The circuit court rejected this

argument, observing, inter alia, that

“the right of the Legislature to delegate

powers to administrative agencies has

been recognized in this State for over

125 years.”

It is true, as Maryland Aggregates

suggests, that “any attempt to authorize

an administrative agency to perform what

is deemed a purely judicial function or

power, would violate the separation of

powers principle." Shell Oil Co, v.

Supervisor, 276 Md. 36, 47, 343 A.2d 521,

527 (1975). This is so because the

judicial power in Maryland is vested

entirely and exclusively in the courts

enumerated in Art. IV, § 1, of the

40a

wi2

Maryland Constitution."*“~ See

generally Shell Oil Co. v. Supervisor,

supra, 276 Md. at 44-47, 343 A.2d at

526-527, and cases there cited.

Nevertheless, Maryland Aggregates’

Article 8 challenge to the Act lacks

merit. It is clear from our cases that

the power vested in the Department of

Natural Resources to determine, in the

first instance, factual issues relating

to compensation under the Act is not

judicial power but quasi-judicial power

which may properly be exercised by the

Department.

12/ Art. IV, § 1, provides, in

pertinent part, as follows:

“The Judicial power of this

State is vested in a Court of

Appeals, such intermediate

courts of appeal as the General

Assembly may create by law,

Circuit Courts, Orphans‘ Courts,

and a District Court.”

4la

This Court has long recognized

that the tasks of making factual deter-

minations and resolving disputes are not

reserved exclusively to the judicial

branch of government. In Shell Oil Co,

v. Supervisor, supra, 276 Md. at 45, 353

A.2d at 526, we quoted the following

language from this Court's opinion in

Solvuca v. Ryan & Reilly Co., 131 Md.

265, 282, 101 A. 710, 715 (1917):

"What is a judicial function

does not depend solely on the

mental operation by which it is

performed or the importance of

the Act. In solving this

question, due regard must be

had to the organic law of the

state and the division of

powers of government. In the

discharge of executive and

legislative duties, the

exercise of discretion and

judgment of the highest order

is necessary, and matters of

the greatest weight and

importance are dealt with. It

is not enough to make a

function judicial that it

requires discretion, deliber-

ation, thought, and judgment."

42a

Later, in Attorney General v. Johnson,

282 Md. 274, 286, 385 A.2d 57, 64, appeal

dismissed, 439 U.S. 805, 99 S.Ct. 60, 58

L.Ed.2d 97 (1978), the Court stated as

follows:

“As we have already

dismissed the notion that

judicial power in the

constitutional sense is

necessarily exercised

whenever facts are

determined and legal

principles are applied to

the facts found, we must

ascertain what qualities

imbue such determinations

with judicial power. While

we have not, until today,

explicitly stated the

proposition, we agree with

those courts which have said

that the essence of judicial

power is the final authority

to render and enforce a

judgment, .. . and we think

that conclusion is implicit

from our own case law."

In modern times, t*e complexity of

governmental obligations has resulted in

increasing reliance upon administrative

agencies for the performance of both

43a

rulemaking and adjudicatory functions.

This Court has recognized the delegation

to administrative agencies of both

legislative and adjudicatory power ‘“

legitimate, “as the separation of powers

concept may constitutionally encompass a

sensible degree of elasticity and should

not be applied with doctrinaire rigor."

Dep't of Nat. Res. v. Linchester, 274 Md.

211, 220, 334 A.2d 514, 521 (1975). See

also Christ v. Department, 335 Md. 427,

441, 644 A.2d 34, 40 (1994). Indeed, as

Chief Judge Murphy explained for the

Court in County Council v. Investors

Funding, 270 Md. 403, 426-443, 312 A.2d

225, 238-247 (1973), the principal focus

of constitutional inquiry into the

exercise of powers by administrative

agencies is the limitation of agency

authority, rather than the nature of the

44a

authority exercised. Chief Judge Murphy

explained as follows (270 Md. at 436, 312

A.2d at 243):

“The constitutional doctrine

of separation of powers

does not itself inhibit

the delegation to an admini-

strative agency of a blend

of executive or legislative

powers with powers judicial

in nature; the determining

factor is not so much the

specific powers granted to

the administrative agency,

but rather the relationship

of the courts to the

exercise of that power.”

Consequently, an agency in the

executive branch may ordinarily perform

adjudicatory functions in harmony with

the principle of separation of powers

provided that there is an opportunity for

judicial review of the agency's final

determination. See, e.g., Attorney

General v. Johnson, supra, 282 Md. at

286-288, 385 A.2d at 64-65; County

Council v. Investors Funding, supra, 270

45a

Md. at 432-437, 312 A.2d at 241-243;

Insurance Comm'r v. Nat'l Bureau, 248 Md.

292, 299-301, 236 A.2d 282, 286-287

(1967); Burke v. Fidelity Trust Co., 202

Md. 178, 187-189, 96 A.2d 254, 260

(1953); Johnstown Coal & Coke Co. v.

Dishong, 198 Md. 467, 473-474, 84 A. 2d

847, 850 (1951); Heaps v. Cobb, 185 Md.

372, 379, 45 A. 24 73, 76 (1945).

Moreover, Maryland's courts have inherent

power to correct agency adjudicatory

determinations that are unsupported by

substantial evidence, arbitrary,

Capricious or illegal. See, e.g.,

Criminal Inj. Comp. Bd. v. Gould, 273 Md.

486, 500-501, 331 A.2d 55, 65 (1975);

Heaps v. Cobb, supra, 185 Md. at 379, 45

A. 2d at 76; Hecht v. Crook, 184 Md. 271,

280, 40 A.2d 673, 677 (1945). See also

Medical Waste v. Maryland Waste, 327 Md.

46a

596, 610-611, 612 A.2d 241, 248 (1992).

It is well established that an

administrative agency may, without

violating the principle of separation of

powers, adjudicate disputes of a type

that might ordinarily also be resolved by

a court. Thus, in Branch v. Indemnity

Ins, Co., 156 Md. 482, 144 A. 696 (1929),

this Court sustained the Workers'

Compensation Act, which removed from the

courts, for initial resolution, a class

of disputes involving the rights of

private employers and employees, and

created instead a system wherein such

claims would be initially resolved in an

administrative forum. See also County

Council v, Investors Funding, supra, 270

Md. 403, 312 A.2d 225 (sustaining

authority of administrative commission

to, inter alia, levy fines and impose

47a

money damages); Hecht v. Crook, supra,

184 Md. at 277, 40 A.2d at 675

(observing, in 1945, that “innumerable

controversies are decided today, by

boards of legislative creation, of a

character that traditionally fell within

the scope of judicial inquiry”).

It is readily apparent in the

present case that the Act, in allowing

the Department of Natural Resources to

determine issues relating to compensation

for property damage caused by surface

mine dewatering, does not violate the

principle of separation of powers. While

the Department is given the authority to

make an initial determination of a mine

operator's liability to property owners

affected by mining activities, this

initial determination does not involve

the Department in the exercise of

48a

judicial powers. A mine operator

aggrieved by the agency's initial

determination is entitled to demand a

contested case hearing at the admini-

strative level and is entitled to

judicial review. See § 7-6A-10.2(g) of

the Natural Resources Article; Code

(1984, 1993 Repl. Vol., 1994 Cum. Supp.),

§ 10-222 of the State Government

Article. Accordingly, the Act neither

vests the Department of Natural Resources

with judicial power nor gives the

Department unreviewable adjudicatory

authority in violation of Article 8 of

the Declaration of Rights and Article IV,

§ 1, of the Constitution. See, e.g.,

Attorney General v. Johnson, supra, 282

Md. at 284-287, 385 A.2d at 64-65; Shell

i 4 vi , Supra, 276 Md. at

47, 343 A.2d at 527; Dep't of Nat. Res.

49a

il inernaytiee Pastis ces) vein. 0

vy. Linchester, supra, 274 Md. at 223, 334

A.2d at 522-523; County Council v,

Investors Funding, supra, 270 Md. at

429-436, 312 A.2d at 240-243; Heaps v,

Cobb, supra, 185 Md. at 378-379, 45 A.2a

at 76.

VI.

Maryland Aggregates also contends

that the Act is invalid for failure to

provide for jury trial of issues

regarding property owners' compensation.

According to Maryland Aggregates,

“disputes between landowners for damages

have historically been actions at law

with a right to trial by jury."

(Maryland Aggregates‘ brief at 24).

Since, under the Act, questions relating

to compensation for property damage

caused by mine dewatering are resolved in

the first instance by the Department of

50a

Natural Resources, Maryland Aggregates

maintains that the Act violates Article

23 of the Maryland Declaration of

Rights.22/

As we have discussed, the statute

vests in the Department of Natural

Resources the primary power to resolve

disputes relating to compensation. In

Murphy v. Edmonds, supra, 325 Md. at

370-375, 601 A.2d at 116-118, this Court

13/ Article 23 of the Maryland

Declaration of Rights provides as

follows:

"The right of trial by Jury of

all issues of fact in civil

proceedings in the several

Courts of Law in this State,

where the amount in controversy

exceeds the sum of five thousand

dollars, shall be inviolably

preserved."

Article 5 of the Declaration of

Rights also contains a guarantee

of the right to jury trial. See

Luppino v,. Gray, 336 Md. 194,

200-201, 647 A.2d 429, 432 (1994).

5la

explained that the right under the

Maryland Constitution to a civil jury

trial Concerns the allocation between

judge and jury of the responsibility for

decision making in judicial proceedings.

Thus, as we emphasized (325 Md. at 372,

601 A.2d at 116),

“{w)]here .. . the General

Assembly has provided that a

matter shall not be resolved in

a judicial proceeding, by

legislatively abrogating or

modifying a cause of action, no

question concerning the right

to a jury trial arises. Since,

under such circumstances, the

matter will not be resolved in

a judicial proceeding, the

question as to whether a judge

Or a jury shall resolve the

matter simply does not arise."

Consequently, this Court has speci-

fically held the jury trial guarantee

inapplicable where the legislature has

committed to an administrative agency the

initial decision making function with

respect to a particular class of

BO LT SOR ER ee Se es

52a

disputes. In Bran v. Indemni In

Co., supra, 156 Md. at 486, 144 A. at

697, this Court stated that under the

Workers’ Compensation Act, “the method

prescribed .. . for the determination of

an applicant's right to its specified

benefits is essentially different from a

civil proceeding in a court of law.

. Therefore, the Court concluded,

workers’ compensation proceedings “could

not properly be classified as a civil

proceeding in a court of law within the

meaning of .. . the State Constitution,”

and the constitutional jury trial

guarantee was simply inapplicable to

administrative proceedings involving

workers' compensation. 156 Md. at

485-489, 144 A. at 697-698.24/

i4/ Quoting the Supreme Court's

decision in Granfinanciera,

(continued...)

53a

Likewise, Article 23 does not apply to

administrative proceedings under the Act

challenged in the present case. The Act

permits landowners damaged by surface

mine dewatering to receive compensation

14/ (...continued) S.A, v. Nordberg,

492 U.6. 33, 61, 109 &.Ct. 2782,

2800, 106 L.Ed.2d 26, 53 (1989),

which involved the claimed right

to jury trial in certain

bankruptcy proceedings, Maryland

Aggregates argues that the

Legislature may not, by “placing

exclusive jurisdiction in an

administrative agency," deprive

litigants of the right to jury

trial. Maryland Aggregates’

argument is not persuasive.

Granfinanciera involved the

Seventh Amendment to the United

States Constitution, which does

not apply to the States. See

Curtis v. Loether, 415 U.S. 189,

192 n. 6, 94 &.Ct. 1005, 1007 n.

6, 39 L.Ed.2dG 260, 265 n. 6

(1974); Bringe v. Collins, 274 Md.

338, 341-345, 335 A.2d 670,

673-675, application for stay

denied, 421 U.S. 983, 95 S.Ct.

1986, 44 L.Ed.2d 475 (1975).

Furthermore, in Granfinanciera,

the Supreme Court drew its Seventh

Amendment principles partly from

54a

for that damage from the operators of the

mines. As we have explained, it was

constitutionally permissible for the Act

to establish the compensation system and

to administer it through the Department

of Natural Resources. The observations

14/ (...continued) considerations

relating to the jurisdiction of

the federal courts under Article

1II of the United States

Constitution, and partly from the

distinction recognized in Atlas

Roofing Co. v. Occupational Safety

Comm'n, 430 U.S. 442, 97 S.Ct,.

1261, 51 L.Ed.2d 464 (1977),

between “public rights" and

“private rights.” Granfinanciera,

S.A. v. Nordberg, supra, 492 U.S.

at 51-55, 109 S.Ct. at 2795-2797,

106 L.Ed.2d 46-49.

Moreover, contrary to Maryland

Aggregates’ contentions, the

holding in Granfinanciera, to the

limited extent that it can be

deemed persuasive, by analogy, to

the Maryland Constitution and the

Maryland courts, appears to be

consistent with our holding in the

present case. In one observation

relevant to the present case, the

(continued...)

55a

of this Court in Branch v, Indemnity Ins.

Co., Supra, 156 Md. at 487, 144 A. at

697, are pertinent here:

"It having been determined

by this court that the

act . . . waS a competent

exercise of legislative

authority, there would be

apparent inconsistency in

holding, nevertheless, that

a@ right of jury trial

according to the course of

the common law must in such

cases be recognized and

unqualifiedly enforced.*

Article 23 does not invalidate the

General Assembly's decision to commit to

14/ (...continued) Court stated as

follows (Granfinanciera, S.A. v,

Nordberg, supra, 492 U.S. at 52,

109 S.Ct. at 2796, 106 L.Ed.2d at

47):

"In certain situations, of

course, Congress may fashion

causes of action that are

Closely analogous to common-law

Claims and place them beyond

the ambit of the Seventh

Amendment by assigning their

resolution to a forum in which

jury trials are unavailable.”

56a

the Department of Natural Resources the

initial function of determining factual

issues relating to compensation for

property damage cause by surtace mine

dewatering.2””

VII.

Maryland Aggregates maintains that

the regulation under the Act amounts to a

15/ While Article 23 does not

constrain the legislature's power

to commit initial decision making

authority over a class of matters

to an administrative forum,

Article 19 of the Maryland

Declaration of Rights may, under

circumstances not presented in the

instant case, impose a substantive

limitation on that power. Article

19 provides as follows:

"That every man, for any

injury done to him in his

person or property, ought

to have remedy by the

course of the Law of the

land, and ought to have

justice and right, freely

without sale, fully without

any denial, and speedily

without delay, according to

the Law of the land."

57a

taking of property without just compen-

sation in violation of the federal and

16/ In particular,

state constitutions.

Maryland Aggregates argues that the

statute, “in impairing the right to

16/ The Takings Clause of t

Amendment provides as fo

"{N]lor shall private property

be taken for public use,

without just compensation."

This principle applies to the

states through the Fourteenth

Amendment. See Lolan v, City of

Tigard, 114 S.Ct. 2309, 2316, 129

L.Ed.2d 304, 315 (1954), citing

Chicago, B. & O. R. Co. v.

Chicago, 166 U.S. 226, 17 S.Ct.

581, 41 L.Ed. 979 (1897).

Article III, § 40, of the Maryland

Constitution reads as follows:

“The General Assembly shall

enact no Law authorizing

private property, to be taken

for public use, without just

compensation, as agreed upon

between the parties, or awarded

by a Jury, being first paid or

tendered to the party entitled

to such compensation.”

58a

pump water, hes effected a taking because

it substantially interferes with rights

in the quarry parcel as a whole."

(Maryland Aggregates’ brief at 29).

As the circuit court recognized,

it is significant to the present case

that the surface mine dewatering Act has

not yet been implemented in Maryland.

The Supreme Court's statement in Keystone

Bituminous Coal Assn, v. DeBenedictis,

480 U.S. 470, 494, 107 S.Ct. 1232, 1246,

94 L.Ed.2d 472, 494 (1978), is pertinent:

"The posture of the case is

Critical because we have

recognized an important

distinction between a claim

that the mere enactment of a

statute constitutes a taking

and a claim that the parti-

cular impact of government

action on a specific piece of

property requires the payment

of just compensation.”

In Hodel v, Virginia Surface Mining &

Recl. Assn,, 452 U.S. 264, 295-296, 101

59a

S.Ct. 2352, 2370, 69 L.BG.2G i, 28

(1981), the Court explained the distinc-

tion in the context of a takings

challenge to the federal Surface Mining

Control and Reclamation Act, which had

been held unconstitutional by the trial

court and, consequently, never enforced.

Observing that a takings challenge to

regulatory legislation generally must be

resolved by considering specific facts

that might bear upon the economic impact,

of the regulation and the particular

nature of the government interference,

the Court continued as follows (ibid.):

“These ‘ad hoc, factual

inquiries,’ must be conducted

with respect to specific

property, and the particular

estimates of economic impact

and ultimate valuation

relevant in the unique

circumstances.

“Because appellees' taking

claim arose in the context of

a facial challenge, it

60a

presented no concrete contro-

versy concerning either

application of the Act to

particular surface mining

operations or its effect on

specific parcels of land.

Thus, the only issue properly

before the District Court and

‘ this Court is whether

the ‘mere enactment’ of the

Surface Mining Act constitutes

a taking. .. . The test to be

applied in considering this

facial challenge is fairly

straightforward. A statute

regulating the uses that can

be made of property effects a

taking if it ‘denies an owner

economically viable use of his

lee@ «+» « « ** Ae,

Tiburon, [447 U.S. 255, 260,

100 S.Ct. 2138, 2141, 65

L.Ed.2d 106, 112 (1980)]. See

Penn Central Transp. Co. v.

New York City, 438 U.S. 104,

98 S.Ct. 2646, 57 L.Ed.2d 631

(1978) .*

See also Lucas v. South Carolina Coastal

Council, 112 S.Ct. 2886, 2893-2895, 120

L.Ed.2d 798, 813-815 (1992); Keystone

Bituminous Coal Assn, v. DeBenedictis,

supra, 480 U.S. at 495, 107 S.Ct. at

1247, 94 L.Ed.2d at 495 (observing that

6la

litigants “face an uphill] battle in

making a facial attack on the Act as a

taking"); Governor v,. Exxon Corp., supra,

279 Md. at, 437, 370 A.2d at 1117; Bureau

of Mines v. George's Creek, 272 Md. 143,

167-175, 321 A.2d 748, 761-765 (1974).

Compare, Maryland Port Admin. v. OC

Corp., 310 Md. 379, 529 A.2d 829 (1987)

(noting complexity of takings law in

Challenges to legislation as applied).

The Supreme Court has recently

emphasized that it is only where "the

owner of real property has been called

upon to sacrifice all economically

beneficial uses in the name of the common

good, that is, to leave his property

economically idle, [that] he has suffered

a taking.” Lucas v. South Carolina

Coastal Council, supra, 112 S.Ct. at

2895, 120 L.Ed.2d at 815. See also

62a

Governor v,. Exxon Corp., supra, 279 Md.

at 437, 370 A.2d at 1117, and cases there

cited. The Supreme Court has strictly

construed the requirement that, for

economic regulatory legislation to

constitute a “taking,” property must be

rendered essentially valueless by

government action. For example, the

legislation challenged in Keystone

Bituminous Coal Assn. v. DeBenedictis,

supra, 480 U.S. 470, 107 S.Ct. 1232, 94

L.Ed.2d 472, required mine operators to

leave in place 50% of the bituminous coal

lying beneath certain structures, and

further required mine operators to

provide compensation for subsidence

damage caused by mining. The Court

rejected the mine operators’ facial

takings challenge to the enactment, in

63a

part because (480 U.S. at 495-496, 107

S.Ct at 1247, 94 L.Ed.2d at 495)

“petitioners have not

Claimed, at this stage,

that the Act makes it

commercially impracticable

for them to continue mining

their bituminous coal

interests in western

Pennsylvania. Indeed,

petitioners have not even

pointed to a single mine

that can no longer be mined

for profit."

Absent such a showing, the Court held

that the mine operators had failed to

Show “any deprivation significant enough

to satisfy the heavy burden placed upon

one alleging a regulatory taking.” 480

U.S. at 493, 107 S.Ct. at 1246, 94

L.Ed.2d at 493.227

i7/ By contrast, “[w]here the govern-

ment authorizes a physical occupa-

tion of property (or actually

takes title), the Takings Clause

generally requires compensation."

Vv ’

(continued...)

64a

Maryland Aggregates does not

contend that the Act makes surface mining

a commercial impracticability for its

members, nor that it renders their

property entirely without value. Not

only does the Act not require mine

operators “to sacrifice all economically

beneficial uses" of their property, Lucas

v. South Carolina Coastal Council, supra,

112 &.Ct. at 2895, 120 L.Ed.2d at 815, it

does not prevent them from continuing

with the economically beneficial use to

which the mines are currently put.

Although the statute may make surface

mining more expensive, by requiring mine

operators to compensate other property

17 (...continued) 503 U.S. 519, 112

S.Ct. 1522, 1526, 118 L.Ed.2d 153,

162 (1992). See also Dep't of

Natural Resources v. Welsh, 308

Ma. 54, 521 A.2d 313 (1986).

65a

owners for damage cause by dewatering,

land use regulation may “transfer wealth

from the one who is regulated to another"

without violating the takings clause.

Yee v. City of Escondido, Cal., 503 U.S.

219, 11312 8.Ct. 19822, 15829, 118 L.Ed.24

153, 166 (1992). The principles set

forth by the Supreme Court in Connolly v,

Pension Benefit Guaranty Corp., 475 U.S.

211, 223, 106 S.Ct. 1018, 1025, 89

L.Ed.2d 166, 177 (1986), are persuasive

here:

"In the course of regulat-

ing commercial and other

human affairs, Congress

routinely creates burdens

for some that directly

benefit others. For

example, Congress may set

minimum wages, control

prices, or create causes of

action that did not

previously exist. Given

the propriety of the

governmental power to

regulate, it cannot be said

that the Taking Clause is

violated whenever legis-

lation requires one person

to use his or her assets

for the benefit of another."

66a

See also Concrete Pipe & Prod. v. Const,

Laborers Pen, Tr., 113 S.Ct. 2264,

2296-2292, 124 L.Ed.2d 539, 577-578

(1993). The circuit court properly

granted summary judgment in favor of the

State on Maryland Aggregates' claim based

on the takings clauses.

VIII.

Finally, Maryland Aggregates

contends that the mechanisms created by

the Act for establishing zones of

dewatering influence violate principles

of procedural due process. Like the

circuit court, we hold that Maryland

Aggregates’ contentions are without

merit .28/

18/ In its reply brief, Maryland

Aggregates also objects to the

procedures for establishing claims

(continued...)

67a

This Court has recently explained

the nature of the guarantee of procedural

due process in the context of administra-

tive proceedings (Maryland State Police

v. Zeigler, 330 Md. 540, 559, 625 A.2ad

914, 923 (1993)):

"Procedural due process,

guaranteed to persons in

this State by Article 24 of

the Maryland Declaration of

Rights, requires that

administrative agencies

performing adjudicatory or

quasi-judicial functions

observe the basic prin-

Ciples of fairness as to

parties appearing before

18/ (...continued) to compensa-

tion under the Act. The Act

provides that “jt]he

Department shall adopt regu-

lations to establish an

administrative process to

expedite the resolution of

water supply loss or property

damage claims arising under

this section." § 7-6A-10.2(h)

of the Natural Resources

Article. The Department has

(continued...)

68a

them. See, e.g., Schultz v,

Pritts, [291 Md. l, 7, 432 A.2d

1319, 1323 (1981)]; Ottenheimer

Pub, v. Employ. Sec, Adm., 275 Md.

514, 520, 340 A.2d 701, 704

(1975); Rogers v, Radio Shack, 271

Md. 126, 129, 314 A.2d 113, 115

(1974); Dal Maso v., Bd, of Co,

Comm'rs, Supra, 238 Md. at 337,

209 A.2d at 65. See also Heft v,.,

Md. Racing Comm'n, 323

18/

(...continued) not yet promul-

gated any such regulations because

of the injunction against enforce-

ment of the Act. Furthermore,

while Maryland Aggregates argues

that a mine operator is not

entitled to judicial review of

decisions relating to compensa-

tion, we agree with the State that

a mine operator or property owner

is entitled to review of a

“decision of [the Department of

Natural Resources] regarding a

finding of proximate cause

relating to water supply failure

Or property damage within a zone

of dewatering influence. This

decision is reviewable first as a

contested case hearing. ...”"

(State's brief at 22). A party

aggrieved by the result of the

contested case hearing may seek

judicial review in the circuit

court. Code (1984, 1993 Repl.

Vol., 1994 Cum. Supp.), § 10-222

of the State Government Article.

69a

Md. 257, 270-272, 592 A.24d 1110,

1116-1118 (1991), and authorities

there cited."

Maryland Aggregates claims that the Act

violates fundamental Principles of

fairness with respect to the establish-

ment of zones of dewatering influence,

Stating that “the quarry owner is not

afforded an Opportunity under the Act for

input into the delineation of the zone.”

(Maryland Aggregates’ brief at 31). This

position is Clearly mistaken.

Under the Act, if a mine receives

a water appropriation permit, then “the

Department [of Natural Resources] shall

establish, as a condition of the [mine

operator's] surface mining permit ...a

zone of dewatering influence around the

Surface mine.” § 7-6A-10.2 (b)(1) of the

Natural Resources Article. Subsection

(g) of § 7-6A-10.2 Provides that “[t]he

70a

Department shall provide opportunity for

a contested case hearing in accordance

with the provisions of § 8-206 of this

article." Section 8-206(g) in turn

provides in part as follows:

"Upon written request the

Department shall grant a

contested case hearing if

it determines that:

(1) The requester has a

specific right, duty,

privilege, or interest

which is or may be

adversely affected by the

permit determination or

license decision and which

is different from that held

by the general public

The establishment of the zone of

dewatering influence is generally a

decision in which a mine operator has a

unique interest that may be adversely

affected by an improper decision.

Furthermore, the provisions of the

Administrative Procedure Act that govern

arernenineeenienel

7la

contested case hearings, Code (1984, 1993

Repl. Vol., 1994 Cum. Supp.), §§ 10-201

through 10-226 of the State Government

Article, would apply to a hearing brought

under § 8-206. See § 10-202(d) (defining

“contested case” to include the

“amendment of a license that is required

by statute or constitution to be deter-

mined only after an Opportunity for an

agency hearing") and § 10-202(£) (3) (iv)

(defining “license” to include a permit)

of the State Government Article. See

generally Medical Waste v, Maryland

Waste, supra, 327 Md. 596, 612 A.2d 241;

Sugarloaf v. Waste Disposal, 323 Md. 641

663-668, 594 A.2d 1115, 1126-1128 (1991),

and cases there cited. Contested case

hearings under the Administrative

Procedure Act include the rights to

Present evidence and to seek

72a

judicial review. §§ 10-213 and 10-222 of

the State Government Article. Thus,

contrary to Maryland Aggregates’

contention, the operators of surface

mines will have ample opportunity to

contribute to the delineation of zones of

dewatering influence in a manner that

satisfies basic principles of fairness.

In sum, we conclude that the

statute is not constitutionally deficient

on any of the grounds urged by Maryland

Aggregates.

OTHER OPINIONS, ETC.

Opinion and Order of the Circuit

Court for Anne Arundel County (Judge

Duckett) dated March 23, 1992 granting

Plaintiff*s Motion for Interlocutory

Injunction:

73a

MAxYLAND AGGREGATES * IN THE

ASSOCIATION, INC.

* CIRCUIT COURT

Piaintiffs

* FOR

Vs.

* ANNE ARUNDEL COUNTY

STATE OF MARYLAND,

et al., * CASE NO.:

C-91-02275

Defendants

x x x *x x x x

ORDER

Plaintiffs' Motion for an

Interlocutory Injunction having come on

for hearing in open court, the Court

having received and considered the

evidence, memoranda and arguments of

counsel, it is this 23rd day of March,

1992, for the reasons stated by the Court

in its oral opinion on March 9, 1992,

which reasons are incorporated herein by

reference, by the Circuit Court for Anne

Arundel County,

ORDERED, that:

1. The interlocutory injunction

- — ee

2 — ———

Se ee

74a

requested by the Plaintiffs be, and the

same is hereby, granted, and

2. The Defendants are hereby

enjoined from implementing the provisions

of Annotated Code of Maryland, Natural

Resources Article, §§ 7-6A-10.1 and

7-6A-10.2 until such time as this matter

is determined on the merits, and

3. Pursuant to Maryland Rule BB75,

a bond in the amount of Twenty-Five

Thousand ($25,000.00) Dollars shall be

posted by the Plaintiffs.

/sf

WARREN B. DUCKETT, JR.

JUDGE

Opinion and Order of the Circuit

Court for Anne Arundel County (Judge C.

Cawood, Jr.) dated March 7, 1994 granting

Defendants’ Motion for Summary Judgment:

75a

MARYLAND AGGREGATES * IN THE

ASSOCIATION, INC.,

et al. * CIRCUIT COURT

Plaintiffs * FOR

Vv. * ANNE ARUNDEL COUNTY

STATE OF MARYLAND, * Case No.:

et al. C-91-02275

Defendants

x x x x *x x x

OPINION AND ORDER

Legislation is normally the

bailiwick of the legislative body which

passes the law, and the executive, which

approves it. Both may act for a myriad

of reasons, after considering whatever

evidence, testimony, or Opinion as they

desire.

The judiciary has an interest in

legislation, but it is a much more

limited role. We do not decide the

wisdom of the legislation, nor are we the

Proper forum to debate whether a

particular piece of legislation will do

76a

more harm than good. Our function,

outside of interpreting the legislation,

is simply to decide whether it exceeds

some boundary of constitutionality.

Plaintiffs in this particular case

find all sorts of violations of

constitutional boundaries. We don't see

it that way. We believe Plaintiffs would

have us act as a super-legislature,

determining the reasonableness of Md.

Code, Natural Resources §7-6A-101 and 102

(sic). As we believe we are legally

required, we decline to do so.

The beginnings of the problem

herein are not hard to follow. In 1968,

the Court of Appeals held in Finley v,

Teeter Stone, Inc., 251 Md. 428 (1968),

that the Finleys were not entitled to

recover damages from Teeter Stone for the

latter's removal, in their quarrying

operation, of percolating water which

77a

caused sinkholes on Plaintiffs’

Property. The Court ended its decision

with a prophetic phrase:

It was suggested at the argument

by counsel for the Finleys that

because of the increase of

knowledge in regard to geology

and the action and reaction of

Soil and percolating waters, and

in view of the serious and

extensive damage suffered by the

Finleys by the appearance of the

Sink holes on their land, an

expanded ‘American rule' should

be adopted by us. There is

little question that the Finleys

have been gravely injured by the

Sink holes, and although we are

Sympathetic with their plight,

we are of the opinion that we

must adhere to the authorities

we have cited. If the public

interest requires a Change of

the law in regard to percolating

waters, a remedy lies with the

General Assembly where the

rights, duties and opinions of

those concerned could be fully

considered and evaluated.

Finley, at 445,

After twenty-five years of

controversy, the General Assembly did

exactly that. We must review the

challenge to the resultant bill.

78a

PROPER PARTIES

First we discuss briefly the proper

parties. Plaintiffs named the State of

Maryland, the Governor of the State of

Maryland, the State Attorney General, and

the Secretary of the Department of

Natural Resources as defendants in its

complaint. The State argues that the

State of Maryland, its Governor, and its

Attorney General are all immune from suit

under the doctrine of sovereign

immunity. The doctrine of sovereign

immunity bars litigants from suing the

State or any of its agencies unless this

immunity has been expressly waived.

Washington Suburban Sanitation Commission

v. Pride Homes, 291 Md. 537, 544 (1981).

Torrey C. Brown, M.D., Secretary of the

Department of Natural Resources is the

only proper defendant named in this

case. Governor Schaefer, Attorney

79a

General Curran, and the State of Maryland

Should all be dismissed from this

action. Since there is one proper

defendant, this is a minor problem.

THE RATIONAL BASIS TEST

Plaintiffs argue that because the

Act at issue applies to quarry operators

but not to other large water users it

makes an impermissible classification in

violation of the Equal Protection

Clause. Since quarry operators are not a

Suspect class, the legislation is subject

to the rational basis, not the strict

Scrutiny, form of review. The former

test holds that courts should defer to

the legislature and uphold any law that

is rationally related to a legitimate

State interest if the law is Supported by

any set of facts which is known or could

reasonably be inferred in Support of the

legislation. Bowie Inn, Inc. v. City of

80a

Bowie, 274 Md. 230, 281 (1975).

Maryland's standard for the

rational basis test requires that legis-

lation have a “fair and substantial”

relationship to a legitimate state

purpose. Md. State Bd. of Barber Ex, v.

Kuhn, 270 Md. 498, 507 (1973). As

articulated in Bowie:

The exercise by the Legislature

of the police power will not be

interfered with unless it is

shown to be exercised arbi-

trarily, oppressively, or

unreasonably...the wisdom or

expediency of a law adopted in

the exercise of the police power

of a state is not subject to

judicial review, and the law

will not be held void if there

are any considerations relating

to the public welfare by which

it can be supported...such a

statute carries with it a strong

presumption of constitu-

tionality. Bowie, at 279.

This is a summary judgment motion.

The Defendants are not required to prove

the wisdom of the statute as a matter of

law, as is usually the burden of the

8la

Proponent of a summary judgment motion,

but only that there is a rational basis

for the Statute as a matter of law. In

other words, if there is a rational basis

for passing the statute as a matter of

law, we must grant Summary judgment.

The Maryland General Assembly had a

Substantial rational basis to pass the

Act. The Assembly heard testimony from

many experts on both sides of this issue,

reviewed various geological Studies, and

corresponded with concerned citizen's

groups and mining interests over a period

of four years (1987-91) before passing

the Act. It heard from experts like

Gerald Ahnell, certified geological

scientist and Director for the Hydrology

Division for Dunn Geoscience Corporation,

from representatives on behalf of the

Lehigh Portland Cement Company, whose

interests would be adversely affected by

82a

passing the Act, and from groups of

concerned citizens like the Boyd's Civic

Association and Citizens Opposed to the

Destruction of the Environment before

passing the legislation.

In 1986 Carroll County Food’'s well

went dry and had to be redrilled from a

depth of 160 feet to 503 feet. The

company claimed that this was a direct

result of dewatering from the neighboring

Genstar quarry, and wrote Genstar

demanding $6,000 compensation for

re-drilling the well. While not

admitting liability, the quarry paid the

$6,120.93. This is part of a pattern;

the quarries have offered to pay private

citizens living nearby with similar

complaints, while adamantly denying any

responsibility or fault.

The State-Wide-Coalition of

Non-Coal Surface Mining, a coalition of

he ceeetneennninenneneenmmneseeaiiitll

83a

residents and businesses who are impacted

by non-coal surface mines (rock quarries)

in their communities, appeared and

testified in favor of the Act in March of

1991. They made a series of arguments

for passing the legislation, pointing out

that growth and development in Maryland

is bringing quarries and residents in

ever-closer proximity and conflict. They

pointed out that the DNR, as the

regulatory agency for the quarries, has

the authority to establish zones of

dewatering influence around then. They

argued that legislation affecting

quarries, but not other large water

users, is not discriminatory because

quarries are unique in the quantities of

water they pump out.

The Coalition discussed U.S.

Geological Survey 968, entitled

Development of Sinkholes Resulting From

84a

Man's Activities in the Eastern United

States, a study which supports the

conclusion that sinkholes are either

caused or substantially worsened by

mining. It also talked about Carroll

County, which hired an independent

consultant to study the problem locally.

The consultant concluded that dewatering

had a substantial negative impact on

surrounding water supplies.

Several other concerned citizen's

groups, like the Friends of Beaver Creek,

the North Potomac Citizen's Association,

and others wrote letters and offered

testimony in support of the Act. While

dewatering is a controversial issue, the

legislative history shows that there is a

substantial basis for passing laws to

regulate it.

Needless to say, we do not decide

whether Plaintiffs’ or Defendants'

85a

experts are more likely to be correct.

The proper forum for that is the

Legislature. In Passing almost any law,

one Can argue whether it has a rational

basis, and which experts were really

correct or really told the truth. We

believe it would be anomalous to present

all the experts before us.

Plaintiffs further argue that there

is no rational basis for the legislation

because quarries do not damage

Surrounding lands. This goes directly

against a legislative finding that

“dewatering in karst terrain may result

in property damage to landowners...around

a@ surface mine." Md. Nat. Res. Code Ann.

§7-6A-10.2(a). Legislative findings of

fact are the sole province of the

legislature and may not be disputed by

the courts. This raises the issue of

separation of powers, a cornerstone of

86a

our government and legal system. As

stated above, the enactments of the

Legislature are presumptively valid,

“this presumption prevailf[ing] until it

appears that the enactment...is invalid

or obnoxious to the expressed terms of

the Constitution...." Dep’ f N R

v. Linch r n n ravel rp., 274

Md. 218 (1974). Furthermore, the right

of the Legislature to delegate powers to

administrative agencies has been recog-

nized in this State for over 125 years.

Id. Thus, Plaintiffs' argument, that the

delegation of fact-finding powers by the

Legislature to an administrative agency

is unconstitutional, is without merit.

Linchester, at 218-223.

Plaintiffs also argue that the Act

holds quarry operators “strictly liable

for any water loss suffered within a zone

of influence determined by the DNR" and

87a

that this is an arbitrary and unfair

imposition of liability. Plaintiffs’

Brief, at 20. The DNR does not hold

quarries strictly liable for water loss

but requires a showing of probable cause

before imposing any liability, which

again, is a reviewable decision. Mad.

Nat. Res. Code Ann. §7-6A-10.2(f£).

DUE PROCESS

Plaintiffs argue that the Act does

not bear any real and substantial rela-

tionship to a legitimate state objective,

and that it therefore constitutes an

unlawful exercise of state police powers

in violation of the Due Process clause of

the Fourteenth Amendment and Article 24

of the Maryland Declaration of rights.

However, there is a strong presumption of

the constitutionality of a statute passed

by the legislature, and "a statute will

not be held void if there are any

88a

considerations relating to the public

welfare by which it can be supported."

Salisbury Beauty Schools v. State Bd. of

Cosmetologists, 268 Md. 32, 48 (1973).

Statutes are so strongly presumed to be

constitutional that courts will not only

presume that the legislature had a

rational basis for enacting a piece of

legislation, but will even hypothesize

reasons for the law's existence if the

legislature fails to give reasons for

it. In this case, however, there is no

need for presumption or hypothesis. The

Maryland General Assembly discussed the

basis for the legislation at length in

House Bill 499-Surf ines-Permi

Conditions for Dewatering a Pit. This

bill was drafted on the basis of the

testimony of many experts (see Rational

Basis text). Plaintiffs apparently do

not understand how the legislature

89a

reached its decision to Pass the Act,

Stating that “fears and concerns of

persons ignorant in the ways of

underground water...cannot form a

rational basis for legislation."

Plaintiffs’ Brief, at 23.

STH AMENDMENT "TAKING" ARGUMENT

Plaintiffs allege that the mere

enactment of the Act at issue constitutes

a taking of the quarry operators'

Property without just compensation,

insofar as they allege that the

legislation regulates the use of the

Property to the extent that it is

commercially impractical to conduct

quarry operations. Hodel vy. Virginia

Surface Mining and Reclamation, 452 U.S.

264 (1981), Clearly sets forth the

Standard by which to evaluate a facial

takings claim as follows: "the statute

regulating the uses that can be made of

90a

property effects a taking if it denies an

owner economically viable use of his

land.” Hodel, at 296. In Hodel, the

court held that such a taking was not

unconstitutional unless just compensation

was unavailable. Hodel, at 297. As the

Hodel plaintiffs made no attempt to

obtain administrative relief from the

regulation before alleging a 5th

Amendment “taking" violation, the court

held that their claim was not yet ripe

for review. The same holds true in this

case. Plaintiffs’ 5th Amendment claim of

an uncompensated taking will not become

ripe for review until they have exhausted

all administrative remedies.

RIGHT TO JURY TRIAL

As succinctly stated by the

Defendants’ Motion, the federal right to

jury trial is not applicable to the case

at bar as no fundamental interest is

9la

implicated by the arguments set forth by

counsel.

The Maryland Declaration of Rights,

which guarantees “the right of trial by

jury of all issues of fact in civil

Proceedings...where the amount in

controversy exceeds the sum of $500" has

been interpreted by the Court of Appeals

of Maryland to provide for the adjudi-

cation of rights by administrative

agencies to fulfill legislative purposes

without violation of jury trial rights.

Linchester, supra. The quasi-judicial

role of administrative agencies has long

been accepted by this State as being

constitutional. Id, “The distinction

between an administrative agency's

fact-finding function and the exercise of

the State's judicial power...was

definitively pointed out...in Dal Maso v.

County Commrs., 182 Md. 200 (1943)...

92a

‘If their findings, resolutions,

or orders are resisted or

ignored, they must call on the

courts to enforce them.'

..-{T])he judiciary has an

undeniable constitutionally-

inherent power to review, within

limits, the decisions of these

administrative agencies.” Id.

at 222-223.

Plaintiffs allege that administra-

tive fact-finding is inappropriate for

the case at hand, as it is an old common

law cause of action between private

landowners. Plaintiffs' Response, at

34. However, the wetlands statute at

issue in Linchester is very similar to

the one at bar, in that a permit had to

be obtained from an administrative agency

(the DNR) before altering any wetlands

property, and involved a dispute between

a private corporation and the DNR. The

delegation of administréetive authority to

the DNR was found wholly constitutional.

OTHER MISCELLANEOUS ARGUMENTS

Plaintiffs‘ Equal Protection of

93a

nonparties to the suit (those residents

of the 19 other counties in Maryland

unaffected by the legislation) argument

fails in that the Plaintiffs lack the

Standing to assert their constitutional

Claims. Furthermore, as stated by

Defendants' motion (at 39), the

Legislature may distinguish between

counties, given a rational basis for

doing so. The statute at bar discri-

minates among counties based on the

geological structure of the land, as the

four counties affected are limestone rich

terrain. Also, as previously stated, the

Legislature need not cure ALL evils at

once--"“the Legislature may select one

phase of a problem and apply a remedy

there, neglecting for the moment other

phases of the problem." Bowie, at 241.

Plaintiffs' procedural due process

and fundamental fairness arguments also

94a

fail, in that the legislation is equipped

with a review/appellate process for the

permit application procedure in order to

pursue quarry operations within the four

counties. With regard to the zones of

dewatering influence, such arguments are

premature, as no such zones have been

established, nor have any regulations

setting forth the manner in which they

will be established been passed (aithough

Md. Nat. Res. Code Ann. §7-6A-10.2(b) (2)

sets forth guidelines for the delineation

of such zones). Clearly, the Act is not

fundamentally unfair, as there is

adequate opportunity for hearing and

opposition to the permit application

procedure.

Accordingly, it is this 7th day of

March, 1994,

ORDERED that the Motion to Dismiss

is granted as to all Defendants except

95a

Torrey C. Brown, and it is further,

ORDERED that the Defendants' Motion

for Summary Judgment is granted, and

judgment is entered in favor of the

Defendant Torrey C. Brown for costs.

ZS/

James C. Cawood, Jr.

Judge

CONSTITUTIONAL AND STATUTORY PROVISIONS

Md. Code Ann., Nat. Res. § 7-6A-10.1

(Supp. 1994)

Dewatering in karst terrain;

legislative intent; zones of

dewatering influence established;

program established.

(a) In general. - The General

Assembly finds that in certain regions of

the State dewatering of surface mines

located in karst terrain may

Significantly interfere with water supply

wells and may cause in some instances

Sudden subsidence of land, known as

Sinkholes. Dewatering in karst terrain

may result in property damage to

landowners in a definable zone of

dewatering influence around a Surface

mine.

established. - It is the intent of the

96a

General Assembly to protect affected

property owners in Baltimore, Carroll,

Frederick, and Washington Counties where

karst terrain is found by directing the

Department to establish zones of

dewatering influence around surface mines

in karst terrain and to administer a

program requiring permittees to mitigate

Or compensate affected property owners in

these counties. (1991, ch. 379.)

Md. Code Ann., Nat. Res. § 7-6A-10.2

(Supp. 1994)

Permit conditions for dewatering a

pit in karst terrain.

(a) Definitions. - (1) In this

section the following words have the

meanings indicated.

(2) “Dewater” or “dewatering”

means to pump water out of a pit.

; (3) “Karst terrain” means an

irregular topography that is:

(i) Caused by a solution of

limestone and other carbonate rock; and

(ii) Characterized by closed

depressions, sinkholes, caverns, solution

cavities, and underground channels that,

partially or completely, may capture

surface streams.

(4) “Lineaments” means the surface

manifestation of cracks, fissures,

fractures, and zones of weakness that,

generally, are observable on aerial

photographs as straight or nearly

straight lines.

ba an nrae

97a

(b) j in en

j : “i o ~ (1) IE a

permittee is issued a water appropriation

permit under § 8-802 of this article to

dewater a pit located in karst terrain in

Baltimore, Carroll, Frederick, and

Washington Counties, the Department shall

establish, as a condition of the

permittee’s surface mining permit under §

7-6A-09 of this subtitle, a zone of

dewatering influence around the Surface

mine.

(2) The areal extent of the zone of

dewatering influence shall be based, as

appropriate, on local topography,

watersheds, aquifer limits, and other

hydrogeologic factors, including the

occurrence of natural fractures, Cracks,

crevices, lineaments, igneous dikes,

changes in rock type, and variations in

the water-bearing characteristics of

formations.

dewatering influence established under

Subsection (b)(1) of this Section, the

permittee shall:

(1) Replace, at no expense to the

owner of real property that is affected

by the surface mine dewatering, a water

Supply that fails as a result of

declining ground water levels; and

(2) Upon a determination by the

Department of proximate cause after the

permittee has received proper notice and

an Opportunity to respond and provide

information, pay monetary compensation to

the affected Property owner or repair any

98a

property damage caused as a result of the

sudden subsidence of the surface of the

land.

(d) Adequate replacement. - (1) An

individual domestic water supply within a

zone of dewatering influence that is no

longer capable of yielding water because

of declining water levels shall be

considered to be replaced adequately by a

permittee if the permittee provides for

the affected property owner a new or

retrofitted well that is capable of

meeting the minimum yield requirements

established in regulations adopted by the

Department of the Environment during the

period of pit dewatering.

(2) A municipal, industrial,

commercial, institutional, or farming

water supply within a zone of dewatering

influence that is no longer capable of

yielding water because of declining water

levels shall be considered to be replaced

adequately by a permittee if the

permittee provides for the affected

property owner a new or retrofitted well

or other alternative water supply that is

capable of yielding water equal to the

volume used or needed by the property

owner before the disruption of water

supplv.

fe) Adequate repair; measure of

compensation. - (1) Real or personal

property within the zone of dewatering

influence in karst terrain in Baltimore,

Carroll, Frederick, and Washington

Counties found by the Department to have

been damaged as a result of sudden land

surface subsidence shall be considered to

99a

be repaired adequately by a permittee if

the permittee returns the damaged

property to its condition before the

Subsidence of the surface of the land.

(2) If the damaged real or personal

property is not capable of being restored

to its pre-subsidence condition, the

permittee shall compensate the owner of

the real or personal Property monetarily

by the difference of the fair market

value of the property as the property

would exist but for the sudden land

Subsidence, and the fair market value of

the property as a result of the damage.

(3) Notwithstanding the other

provisions of this subsection, the

permittee and the property owner may

agree on monetary compensation or other

mitigation in lieu of restoration.

(f£) Proximate cause. - The

Department may not require a permittee to

replace water supplies, as provided in

this section, if the permittee

demonstrates to the Department by clear

and convincing evidence that the

proximate cause of the loss of water

Supply is not the result of pit

dewatering.

(g) ing. - The

Department shall provide Opportunity for

a contested case hearing in accordance

with the provisions of § 8-206 of this

article.

(h) Regulations. - The Department

Shall adopt regulations to establish an

administrative process to expedite the

100a

resolution of water supply loss or

property damage claims arising under this

section.

(i) Exceptions. - Compensation,

restoration, or mitigation provided by

this section does not apply to:

(1) Improvements that are made to

real property within an established zone

of dewatering influence following a final

decision by the Department to issue a

surface mining permit; or

(2) Improvements that are made to

real property following the establishment

of a zone of dewatering influence as a

condition of an existing surface mine

permit. (1991, ch. 379; 1994, ch. 739, §

aad

The only change in the statute as

enacted occurred in 1994 when subsection

(g) was amended (Acts 1994, ch. 379, §

2). As Originally enacted, subsection

(g) read:

Contested case hearing. - (1) A

permittee or an affected property owner

who is aggrieved by a determination of

the Department under this section may

request a contested case hearing. (Md.

Code Ann., Nat. Res. § 7-6A-10.2(g)

(Supp. 1991))

10la

Constitution of the United States

AMENDMENT I

Freedom of Religion, Speech and

Press; Peaceful Assemblance;

Petition of Grievances

Congress shall make no law

respecting an establishment of religion,

Or prohibiting the free exercise thereof;

Or abridging the freedom of speech, or of

the press, or the right of the people

peaceably to assemble, and to petition

the Government for a redress of

grievances.

AMENDMENT V

Grand Jury Indictment For

Capital Crimes; Double Jeopardy;

Self Incrimniation; Due Process

Of Law; Just Compensation

For Property

No person shall be held to answer

for a capital, or otherwise infamous

Crime, unless on a presentment or

indictment of a Grand Jury, except in

Cases arising in the land or naval

forces, or in the Militia, when in actual

service in time of War or public danger;

nor shall any person be subject for the

Same offense to be twice put in jeopardy

of life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of life,

liberty, or property, without due process

of law; nor shall private property be

taken for public use, without just

compensation.

102a

AMENDMENT XIV

Section l.

Citizenship Rights Not to

Be Abridged by States

No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its

jurisdiction the equal protection of the

laws.

MANNER OF RAISING

FEDERAL QUESTIONS

The federal questions sought to be

reviewed by this Court were raised as

follows: The complaint filed herein

pursuant to the Uniform Declaratory

Judgment Act, Md. Code Ann., Cts. & Jud.

Proc. §§ 3-401 - 415 (1989) contained the

following allegations among others:

Gravamen of all Counts

10. The Act is unconstitu-

tional, and, therefore, null and void for

the following reasons:

103a

A. There is no evidence

that a rock quarry creates a dewatering

influence of such magnitude, especially

as compared to other users of water in

karst terrain, so as to justify the

imposition of liability upon rock quarry

operators, and not upon other water

appropriators, for losses of neighboring

water supplies or subsidences of

neighboring land.

The Act thus bears no

Substantial relation to the health,

safety, morals, or welfare of the people

of the State of Maryland or to any other

legitimate objective of the legislature,

and, therefore, goes beyond the police

power of the State and denies Plaintiffs

due process of law in violation of

Article 24 of the Maryland Declaration of

Rights and the Fourteenth Amendment to

the United State Constitution.

104a

B. The Act singles out

rock quarry operators and imposes upon

them a liability for loss of water

supplies and the sudden subsidence of

land which liability is not imposed upon

any other large user of water in karst

terrain. There is no rational basis for

such distinction. Thus, the Act denies

Plaintiffs equal protection of the laws

in violation of Article 24 of the

Maryland Declaration of Rights and the

Fourteenth Amendment to the United States

Constitution.

C. The Act deprives rock

quarry operators of the property right

given them by the common law and made

applicable to the citizens of Maryland by

Article 5 of the Maryland Declaration of

Rights and enjoyed by all other water

users in the State to use all percolating

water in and under their property for any

105a

legitimate purpose without regard to the

effect of such use on the property of

others, but does not deprive any other

user of water in the State of Maryland of

such common law right. The distinction

between rock quarry operators’ use of

water and the use of water by others is

not justified by any overriding social

interest, and, thus does not pass the

strict scrutiny test for such legislation

laid down by the courts of the State of

Maryland and the United States. The Act

thus denies Plaintiffs equal protection

of the laws in violation of Article 24 of

the Maryland Declaration of Rights and

the Fourteenth Amendment to the United

States Constitution.

a * *

E. The Act deprives rock

quarry operators of their property right

in the percolating waters under their

106a

land without just compensation in

violation of Article 24 of the Maryland

Declaration of Rights and the Fourteenth

Amendment to the United States

Constitution.

F. The Act fails to make

provision for overlapping zones of

dewatering influence and imposes

liability on rock quarry operators for

the loss of such things as a municipal or

industrial water supply even though the

municipality or industry may have made a

significant and substantial contribution

to the dewatering of the area, and,

indeed, even though the contribution of

the municipality or industry to the

dewatering may have been many times

greater than that of the rock quarry.

Accordingly, the Act denies Plaintiffs

due process of law in violation of

Article 24 of the Maryland Declaration of

107a

Rights and the Fourteenth Amendment to

the United States Constitution.

G. The Act discriminates

against the citizens of the State of

Maryland in that only those within a zone

of dewatering influence in karst terrain

in four counties whose wells go dry or

land subsides are entitled to the

benefits of the Act even though the water

appropriators elsewhere in the State may

have created greater zones of dewatering

influence with a more pervasive effect on

wells and subjacent support than rock

quarries in karst terrain. The Act thus

denies citizens of the other 19 counties

in the State and Plaintiffs equal

protection of the laws in violation of

Article 24 of the Maryland Declaration of

Rights and the Fourteenth Amendment to

the United States Constitution.

i08a

H. The Act imposes a

liability upon the operator of a rock

quarry for activities that preceded the

Act. Plaintiffs' quarries have been in

operation for many years and have been

issued permits by the State of Maryland

authorizing them to pump water from their

quarry pits in order to mine the rock.

There is now no alternative to such

pumping. The Act, for the first time,

seeks to impose upon them a liability for

a lawful activity which brings with it a

potential for almost unlimited liability

within a zone of dewatering influence.

The Act thus constitutes an attempt to

change a rule of law to give it

retroactive effect and, therefore,

constitutes a taking of Plaintiffs’

property without due process of law in

violation of Article 24 of the Maryland

Declaration of Rights and the Fourteenth

109a

Amendment to the United States

Constitution.

I. The Act permits the

Department of Natural Resources to

establish a zone of dewatering influence

and imposes unique liability on rock

quarry operators within such zones, but

does not give them any Opportunity for

input in the establishment of the zones

of dewatering influence or recourse to

contest their accuracy once they are

established. This deprives Plaintiffs of

their property without due Process of law

in violation of Article 24 of the

Maryland Declaration of Rights and the

Fourteenth Amendment to the United States

Constitution.

x * x

The Circuit Court for Anne Arundel

County passed upon Petitioner's

contentions by granting Summary judgment

110a

to the Defendants on March 7, 1994 for

the reasons stated in its opinion of that

date, which is included in this Appendix,

but which held in essence that there was

a rational basis for the legislation,

that the Act did not deprive Petitioners

of due process of law, that Petitioners’

Fifth Amendment taking of property

without due process of law argument was

not ripe for review because Petitioners

had not exhausted all administrative

remedies, and that Petitioners’ proce-

dural due process and fundamental

fairness arguments fail because the

legislation is equipped with a

“review/appellate process” for the permit

application procedure.

Petitioners filed an appeal of that

decision to the Court of Special Appeals

of Maryland and petitioned the Court of

Appeals of Maryland, Maryland's highest

llla

court, to issue a writ of certiorari to

the Court of Special Appeals to review

the decision of the trial court prior to

the time that the Court of Special

Appeals heard the case. That petition

was granted. In its brief to the Court

of Appeals, Petitioner raised the federal

question sought to be reviewed as follows:

If there was no evil at hand for

correction, and there wasn't,

requiring Plaintiffs to submit

to imposition of zones of

dewatering influence around

their quarries within which they

would be liable for all water

Supply failures, including

municipal and industrial

failures, must necessarily be

unreasonable, unduly oppressive,

and patently beyond the

necessities of the case without

112a

a real and substantial relation

to the objects sought to be

attained. As such, the Act is

an invalid exercise of the

police power, violating the due

process clause of the Fourteenth

Amendment to the United States

Constitution and Article 24 of

the Maryland Declaration of

Rights.

Just as was the case with respect

to water supply failures, there was thus

no evil at hand for correction so that

the Act fails the threshold test of due

process. * * * (citations omitted)(12).

Accordingly, there is no rational

basis for distinguishing quarries from

other water users and the Act, which

admittedly singles out quarries, denies

Plaintiffs equal protection of the law

(14).

113a

It is submitted that the Act should

be subject to heightened scrutiny because

it deprives Plaintiffs of the very

important and valuable right enjoyed by

all other landowners in the State to be

able to use the percolating water in

their property for any legitimate purpose

without fear of liability for the

consequences thereof upon their

neighbors. Finley v. Teeter Stone, Inc.,

251 Md. 428 (1968). Whether it is or not

is not deemed material, however, because

the Act cannot pass the less demanding

rational basis test (16).

The purpose of the equal protection

Clause is to protect persons against

intentional and arbitrary discrimina-

tion. (Citations omitted.) "Where all

persons, in like circumstances, are

treated the same under the laws, there is

no deprivation of equal protection, but a

1l4a

law which operates upon some persons or

corporations, and not upon others like

situated or circumstanced, or in the same

class, is invalid.’ *** (citations

omitted.) (16-17).

Although “equal protection does not

require that all persons be dealt with

identically *** it does require that a

distinction made have relevance to the

purpose for which the classification is

made." *** (citations omitted.) (17).

The distinction made between quarry

owners in the four counties and all other

large appropriators of water does not

rest upon “some ground of difference

having a fair and substantial relation to

the object of the legislation." ***

(citations omitted.) Simply put, a large

appropriator of water is a large appro-

priator of water and there is no differ-

ences beween well failures and sinkholes

115a

caused by one than the other. There is

no rational explanation to justify why

only quarries, and not other large

appropriators of water “like situated,”

are regulated by the Act. Without a

rational basis for distinction the Act is

unconstitutional because it denies

Plaintiffs equal protection of the law.

* * * (Citations omitted.) (19).

The Act results in a taking of

Plaintiffs’ property without due process

of law (27).

The Act denies Plaintiffs’

procedural due process (30).

The Act discriminates against the

citizens of the four counties involved

who do not live near quarries and against

citizens of all other counties (32).

Some specific errors committed by

the lower court. *** Plaintiffs' claim of

an unconstitutional taking is not ripe

ll6a

for review.

On November 7, 1994 the Court of

Appeals of Maryland passed upon

Petitioner's contentions by its Order

reading in part as follows:

“For reasons to be stated in an

opinion later to be filed, it is

this 7th day of November, 1994,

ORDERED by the Court of Appeals

of Maryland, a majority of the

Court concurring, that the

judgment of the Circuit Court

for Anne Arundel County is

affirmed; ***,"

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.