# Appendix — Genstar Stone Products Co. v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1111

## Text

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,

2a

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

3a

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

ee

4a

appropriation of water in connection with
certain surface mining operations.
Be

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.

5a

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.

6a

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."

7a

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.

8a

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

9a

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

7/

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

8/

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 Nordlinger v. Hahn, 112 S.Ct.
2326, 120 L.Ed.2d 1 (1992); Gr ry _v
Ashcroft, 501 U.S. 452, 111 S.Ct. 2395,
115 L.Ed.2d 410 (1991).

While this Court has not hesitated
to strike down discriminatory economic
regulation that lacked any reasonable

justification, e.g., Verzi v. Baltimore

33a

County, 333 Md. 411, 635 A.2d 967 (1994),
and Kirsch v. Prince George's County, 331
Md. 89%, 626 A.2d 372 (1993), we never-
theless accord to the decisions of
legislative bodies a strong presumption

of constitutionality. In Murphy v.

Edmonds, 325 Md. 342, 367, 601 A.2d 102,
114 (1992), we quoted the summary of

rational basis review set forth in
Whiting-Turner Contract. Co. v. Coupard,
304 Md. 340, 352, 499 A.2d 178, 185
(1985), which stated that a statute

“can be invalidated only if the
classification is without any
reasonable basis and is purely
arbitrary. Further, a classi-
fication having some reasonable
basis need not be made with
mathematical nicety and may
result in some inequality. If
any state of facts reasonably
can be conceived that would
sustain the classification, the
existence of that state of
facts at the time the law was
enacted must be assumed.”

34a

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.
V.
Maryland Aggregates next argues

that the Act violates the constitutional

principle of separation of powers .++/

ct
Oo

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...)

q
4

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
A
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

ee

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.

(c) Remedies. - Within the zone of
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

eh

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).

i
:
j
i

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; ***,"

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1538%3A2. Public record. Not legal advice.