No. 94-1851
In The Supreme Court of The United States
OCTOBER TERM, 1995
M & J COAL COMPANY AND MONONGAH DEVELOPMENT
COMPANY, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION OF A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
ALBERT M. FERLO, JR.
JEFFREY P. KEHNE
Attorneys
Department of Justice
Washington, D.C. 20530
(202)514-2217
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QUESTIONS PRESENTED
Petitioner Monograph Development Company purchased
rights to extract coal from the Mongraph Mine and leased
those rights to petitioner  M & J Coal Company. Petitioners
contended that federal regulators took their property by requiring M & J Coal to provide
subjacent support to the surface estate overlying the
mine in a manner that diminished the value of peti-
tioners' mineral estates. The questions presented are:
    1. Whether the property interests that petitioners
acquired were limited by pre-existing restrictions on
mine operators' rights to cause subsidence damage,
restrictions that included a federal statutory pro-
hibition against mining practices that endanger the
public health and safety.
    2. Whether, if petitioners were not limited by pre-
existing restrictions, the restriction placed on peti-
tioners' mining operations in order to abate a danger
to public health and safety rose to the level of a Fifth
Amendment taking.
(I)
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TABLE OF CONTENTS
Opinions  below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 11
Conclusion . . . . 20
    TABLE OF AUTHORITIES
Cases:
Allegheny Mining Corp. v. Callaghan:
No. 81-579 (Kanawha County Cir. Ct. Feb. 13, 1981) . . . . .4
No. 81-579 (Kanawha County Cir. Ct. Sept. 10, 1981) . . . .4
Andrus  v. Allard, 444 U.S. 51 (1979) . . . . 19
Ball v. Island Creek Coal Co., 722 F. Supp. 1370
(W.D. Va. 1989) . . . . 15
Board of Regents v. Roth, 408 U.S. 564 (1972) . . . . 11
Brown v. Crozer Coal & Land Co., 107 S.E.2d 777
(W. Va. 1959) . . . ..15
California Housing Securities, Inc. v. United States,
959 F.2d 955 (Fed. Cir.), cert. denied, 113 S. Ct. 324
(1992) . . . . 13
Cogar v. Somerville, 379 S.E.2d 764 (W. Va. 1989) . . . . .15
Concrete Pipe & Prods. of California, Inc. v.
Construction Laborers Pension Trust,.
113 S. Ct. 2264 (1993) . . . .12,16,18-19
Connolly v. Pension Benefit Guaranty Corp.,
475 U.S. 211 (1986) . . . . 12,16
Florida Rock Indus. v. United States, 791 F.2d 893
(Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987) . . . . 13
Golden Pacific Bancorp v. United States,
15 F.3d 1066 (Fed. Cir. 1994) . . . . 13
Johnson v. Junior Pocahontas Coal Co.,
234 S.E.2d 309 (W. Va. 1977) . . . . 14
Keystone Bituminous Coal Ass'n v. DeBenedictis,
480 U.S. 470 (1987) . . . . 7,18,19,20
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IV
Cases-Continued:
Lucas v. South Carolina Coastal Council,
112 S. Ct.. 2886 (1992) . . . .11,12
M & J Coal v. OSM, 115 I.B.L.A. 8 (1990) . . . .7
Penn Central Transp. Co. v. New York City,
438 U.S. 104 (1978) . . . .16
Rose v. Oneida Coal Co., 375 S.E.2d 814 (W. Va. 1988) .
Ruckleshaus v. Monsanto Co., 467 U.S. 986 (1984) . . . .
Scranton v. Wheeler, 179 U.S. 141 (1900) . . . .
Stamp v. Windsor Power House Coal Co., 177 S.E.2d
146 (W. Va. 1970) . . . ..3
Tabb Lakes, Ltd. v. United States, 10 F.3d 796
(Fed. Cir. 1993) . . . .
United States v. Cherokee Nation of Oklahoma, 480
U.S. 700 (1987) . . . .
West v. National Mines Corp., 285 S.E.2d 670
(W. Va. 1981) . . . .
Wilson v. Phoenix Powder Mfg. Co., 21 S.E. 1035
(W. Va. 1895) . . . .
Winnings v. Wilpen Coal Co., 59 S.E.2d 655
(W. Va. 1950) . . . .2
Constitution, statutes and regulations
U.S. Const. Amend. V (Takings Clause) . . . .
Surface Minig Control and Reclamation Act of 1977,
30 U.S.C. 1201 et  seq. . . .
 503,30  U.S.C. 1253 . . . .3,4
 516(b)(1),  30 U.S.C. 1266(b)(1) . . . .
 521(a)(2), 30 U.S.C. 1271(a)(2) . . . .6,9,10,11,13,14
Surface Coal Mining and Reclamation Act:
1980 W. Vs. Acts ch. 87, W. Va. Code  20-6-1 et seq.
  (1981) . . . .
    20-6-14(b)(1) (1981) . . . ..
    20-6-14(c)-(d) (1981) . . . .4
    20-6-16(a) (1981) . . . .
1994 W. Va. Acts ch. 61, W. Va. Code  22-3-1 et seq.
  (1994) . . . ..
    22-3-14(b)(l) (1994) . . . .4,5
    22-3-14(c)-(d) (1994) . . . .5
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V
Statutes and regulations-Continued
   22-3-25(a)(1) (1994) . . . .14
30 C.F.R.:
Pts. 730-732 . . . .4
Pt. 843:
Section 843.11(a)(1) . . . .6
Pt. 948:
Section 948.10 . . . .5
W. Va. Code of State Regs. (1991):
 38-3-12 . . . ..5
 38-3-12(a)(7)(A) . . . ..19
 38-3-12(a)(7)(D) . . . .19
  38-3-16.2(d) . . . .5
 38-6-16.2(c)(1)-(2) . . . . 5                                                                                                                                   W. Va. Surface Mining Reclamation Regs.:
 7C.01 (1981) . . . .5
 7C.02 (1985) . . . .5
 7C.02(a)-(b) (1981) . . . .5
 7C.03 (1981) . . . .5
[miscellaneous:
 46 Fed. Reg. 5915 (1981) . . . ..4
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ln the Supreme Court of the United States
OCTOBER TERM, 1995
        No. 94-1851
M & J COAL COMPANY AND MONONGAH DEVELOPMENT
       COMPANY, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE FEDERAL CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
     The opinion of the court of appeals (Pet. App. 3a-16a)
is reported at 47 F.3d 1148. The opinion of the Court of
Federal Claims (Pet. App. 17a-38a) is reported at 30
Fed. Cl. 360.
JURISDICTION
    The judgment of the court of appeals was entered on
February 15, 1995. The petition for a writ of certiorari
was filed on May 11, 1995. The jurisdiction of this
Court is invoked pursuant to 28 U.S.C. 1254(1).
(1)
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2
       STATEMENT
    In July 1981, petitioner Monongah Development
Company acquired rights to extract coal from the
Monongah Mine in Marion County, West Virginia, and
in 1985 it leased those rights to petitioner M & J Coal
Company. Pet. App. 6a. In April 1986, the Office of
Surface Mining Reclamation and Enforcement (OSM)
of the U.S. Department of the Interior found that
M & J Coal's operations were causing surface sub-
sidence that posed an imminent threat to public health
and safety. Id. at 7a-8a. Pursuant to statutory au-
thority, OSM ordered M & J Coal to cease mining until
it abated that threat. Petitioners sued the United
States in the Court of Federal Claims, contending that
OSM's action had effected a taking of their property
for which they were entitled to compensation. ld. at
8a-10a. The court granted the government's motion
for summary judgment, and the court of appeals
affirmed.  ld. at 16a.
    1. The legal ability of mineral interest owners in
West Virginia to subside overlying surface estates is
shaped by state common law and by state and federal
statutes and regulations.
    a. Under  West Virginia common law, when surface
and mineral estates are separated, the right of sub-
jacent support may be retained for the benefit of the
surface estate or disclaimed to increase the value of
the mineral estate. See, e.g., Winnings v. Wilpen Coal
Co., 59 S.E.2d 6552658 (W. Va. 1950). Deed language is
construed strictly to prevent inadvertent alienation of
the right of subjacent support from the surface estate.
Ibid. A surface owner's waiver of the right of
subjacent support, once established, gives the mineral
estate owner partial protection from common law tort
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3
actions. A surface estate owner  who has waived the
right of subjacent support (or the successor  to such an
owner) may not enjoin or recover damages under a
private nuisance or negligence theory for subsidence
within the scope of the waiver. See, e.g., Rose v.
Oneida Coal Co., 375 S.E.2d 814, 816 (W. Va. 1988);
Stamp v. Windsor Power House Coal Co., 177 S.E.2d
146, 148-150 (W. Va. 1970). An enforceable waiver by
one surface estate owner, however, does not affect the
common law rights of adjoining property owners, or of
the public generally, to be free of hazards caused by
underground mining operations.1.
    b. Enacted in 1980, the West Virginia Surface Coal
Mining and Reclamation Act (WVSCMRA).2 .estab-
lished a comprehensive regulatory program that
"changed many of the old common law rules concern-
ing the rights and remedies of surface owners vis a
vis mineral owners." Rose, 375 S.E.2d at 816. That
legislation was prompted by the Surface Mining
Control and Reclamation Act of 1977 (SMCRA), 30
U.S.C. 1201 et seq., which established minimum nation-
al standards to control the environmental effects of
surface mining (as well as the surface effects of under-
ground mining) and a mechanism for States with quali-
fying programs to obtain primary regulatory juris-
diction over mining within their borders. See SMCRA
___________________(footnotes)
 1 Compare, e.g., Wilson v. Phoenix Powder Mfg. Co., 21 S.E.
1035, 1036-1037 (W. Va. 1895) (explosives factory in populated
area "is a public nuisance, and indictable as such"); see also West
v. National Mines Corp., 285 S.E.2d 670, 674-677 (W. Va. 1981)
(coal haulers' right to use public road limited by homeowners'
rights to be free from dust).
    2 1980 W. Va. Acts ch. 87, initially codified at W. Va. Code
$320-6-1 et seq. (1981), currently codified, as amended, at W. Va.
Code 5522-3-1 et seq. (1994).
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4
503,30 U.S.C. 1253 (procedures for establishing state
programs); see also 30 C.F.R. Pts. 730-732 (federal
regulations governing state programs).
In accordance with SMCRA, WVSCMRA addressed
the surface effects of underground mining as well as
the effects of surface or strip mining operations.3.
West Virginia's program, including both WVSCMRA
and the State's proposed regulations, was conditionally
approved by OSM in January 1981. See 46 Fed. Reg.
5915 (1981). Interim provisions of the State's two-
stage program took effect immediately. 4 .The State's
"permanent program," also set out in the initial
regulations, took effect in 198.3, following the
termination of a state-court injunction against its
implementation.5.
    West Virginia's program has closely tracked the
SMCRA and the implementing federal regulations. In
accordance with federal standards, West Virginia has
required underground mining operators to take steps
___________________(footnotes)
3    Compare 1980 W. Va. Acts ch. 87,  20-6-14(b)(l) (1981)
(current version edified at W. Va. Code  22-3-14(b)(l) (1994))
with SMCRA  516(b)(l), 30 U.S.C. 1266(b)(l) {underground
mining permits must include "measures * * * to prevent
subsidence causing material damage").
4    See W. Va. Surface Mining Reclamation Regulations (W.
Va. SMRR) (1981). Subsequent, revised versions of those
regulations were promulgated as W. Va. SMRR (1985) and W.
Va. Code of State Regulations (W. Va, CSR) (1991). Relevant
provisions of those regulations are reprinted at Gov't C.A. Br.
A1-A34.
5    See Allegheny Mining Corp. v. Callaghan, No. 81-579
(Kanawha County Cir. Ct. Feb. 13, 1980 (enjoining
implementation of parts of West Virginia's  state program);
Order, Allegheny Mining Corp. v. Callaghan, No. 81-579
(Kanawha County Cir. Ct. Sept. 10, 1981) (extending
injunction).
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5
to prevent subsidence damage and to remedy some of
the subsidence damage that nevertheless occurs. The
subsidence-prevention component of the State's pro-
gram has included a requirement that underground
mine operators give surface owners and occupants six
months' notice before mining beneath them and a
prohibition on most mining beneath or in close
proximity to public buildings, roads, and bodies of
water. 6. The remedial component has included re-
quirements that mine operators restore subsided land
and, at times, that they repair or pay compensation for
subsidence damage to structures.7 .During the period
relevant here, primary responsibility for adminis-
tration of those requirements was entrusted to the
West Virginia Department of Energy (WVDOE).
    c. When OSM approved West Virginia's program
under SMCRA Section 503, the State assumed pri-
mary "regulatory authority in West Virginia for all
surface coal mining and reclamation operations * * *
on non-Federal and non-Indian lands." 30 C.F.R. 948.10.
However, the Secretary of the Interior, acting
through OSM, remained obligated to issue a federal
cessation order whenever federal inspection of a West
Virginia mine revealed a "condition [or] practice [that]
* * * creates an imminent danger to the health or
___________________(footnotes)
6     See 1980 W. Va. Acts ch. 87,  20-6-14(b)(l) and (c)-(d)
(1981) (current version codified at W. Va. Code  22-3-14(b)(l)
and (c)-(d) (1994)); W. Va. SMRR 7C.01, 7C.03 (1981) (current
versions codified at W. Va. CSR 38-3-12, 38-3-16.2(d) (1991)).
7      See W. Va. SMRR  7C.02(a)-(b) (1981) (current version
codified at W. Va. CSR 38-6-16.2(c)(1)-(2) (1991)). In late April
1986, when OSM undertook the enforcement action that gave
rise to this litigation, state regulations did not require
underground mine operators to remedy subsidence damage to
structures. See W. Va. SMRR 7C.02 (1985).
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6
safety of the public." SMCRA  521(a)(2), 30 U.S.C.
1271(a)(2). A Section 521(a)(2) order requires imme-
diate "cessation of surface coal mining and reclama-
tion operations" and imposes "affirmative obligations
cm the operator requiring him to take whatever steps
the Secretary deems necessary to abate the imminent
danger or the significant environmental harm." Ibid.;
see 30 C.F.R. 843.11(a)(1).
    2. In July 1981, petitioner Monongah Development
purchased rights to the coal remaining in the Monon-
gah Mine. After leasing those rights to Pittsburgh
Coal Works for a" three-year period, Monongah leased
"the remaining unmined merchantable coal," together
with related "mining rights and privileges," to
petitioner M & J Coal in November 1985. C.A. App.
380-393. In March and April 1986, WVDOE, re-
sponding to complaints of subsidence damage from
Marion County residents Carl Dingus and Joseph
Tarley, inspected M & J Coal's operations and re-
viewed its permit status. Pet. App. 7a-8a, 21a-22a.
WVDOE issued a series of notices of violation (NOVs)
that required M & J Coal to fill surface cracks, to
cease operations until it secured a state permit, to
notify surface owners of their intentions to mine
under their property, and to submit a revised
subsidence control plan. See id. at 7a-8a, 21a-22a; C.A.
App. 399,401,403,406, 412.8.
 ___________________(footnotes)
8     WVDOE later withdrew its NOV concerning inade-
quate notice to surface owners (C.A. App. 406), accepting
M & J Coal's contention that it had "not actualIy mined under
the Tarley residence, only adjacent to it," and that the Tarleys,
therefore, had not been entitled to notice. See id. at 407.
However, the IBLA in determining an appropriate penalty for
M & J Coal's violations, rejected M & J Coal's notice argument,
ruling that the Company had been required to provide notice to
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7
M & J Coal submitted its initial subsidence control
plan to WVDOE on April 14, 1986. That plan indicated
that no effort would be made to prevent the subsidence
of occupied dwellings. M & J Coal claimed to have
acquired "legal rights" to cause subsidence damage to
"approximately sixteen" privately owned structures
"without liability."  9 The company promised to prevent
subsidence of six surface features protected by state
regulations-''two perennial streams, three public
roads, and one high tension power pole." See AR T.309
(CR 4), Dec. 2 (Plan at 5-6). M & J Coal's plan indicated
that the company would retain pillars and blocks of
coal under those surface features in portions of the
seam defined by a fifteen-foot setback and a fifteen-
degree angle of draw. See Pet. App. 7a, 21a.  10.
 ___________________(footnotes)
all surface residents within the angle of draw. M & J Coal v.
OSM, 115 I.B.L.A. 8,26 n.14 (1990).
9     See Administrative Record Tab (AR T.) 309 (CR 4), Dec.
2 (Plan at 4-8). (The Administrative Record was filed with the
trial court in May 1993.) The record does not disclose where
those structures were or on which deeds M & J Coal relied as
enforceable waivers of the right of subjacent support.
10     Under those standards, limits on M & J Coal's full-
extraction operations were to be established by (1) moving
outward from the perimeter of each protected surface feature
for a distance of fifteen feet; (2) dropping vertical lines from the
extended perimeter downward through the coal seam, and (3)
projecting a fifteen-degree angle, measured at the surface from
the vertical, out into the coal seam. An explanatory diagram
was included in M & J Coal's subsidence control plan. See AR
T.309 (CR 4), Dec. 1 (at 8); see also Keystone Bituminous Cord
Ass'n v. DeBenedictis, 480 U.S. 470, 477 n.7 (1987) (describing
Pennsylvania's use of a fifteen-degree angle of draw as a
benchmark for subsidence protection). The court of appeals was
incorrect in its statement (see Pet. App. 7a n.2) that the angle of
draw was to have been measured from the "roof of the mine,"
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8
     On April 25, 1986, WVDOE approved M & J Coal's
initial plan and authorized the company to resume
mining. Pet. App. 7a, 22a. On that same date, Joseph
Tarley contacted. OSM with information concerning
additional, more severe subsidence damage to his prop-
erty. Id. at 22a-23a; C.A. App. 29. Tarley stated that
he and his wife .-were moving out of their house to
escape subsidence-related hazards. As he recounted in
a later affidavit:
     The needle on the gas meter had been spinning
wildly. The section of the gas line immediately
adjacent to the gas meter was severed. My water
line to the public water supply also broke, and
the access wires that the electric company had
installed outside our house were leaning and
stretching as tight as a fiddle string.
Pet. App. 22a-23a.
    Upon receiving Tarley's call, OSM inspectors re-
turned to the Tarley property. The inspectors became
concerned that "people would fall into the subsidence
cracks or a distressed structure would collapse on an
individual" and that additional subsidence could affect
"up to 16 home?' in the vicinity, "along with public
roads, utilities, and a stream." C.A. App. 28. The
inspectors contacted WVDOE and requested that the
State use its authority under WVSCMRA to abate the
hazard. State regulators declined to act on the ground
that they considered M & J Coal to be in compliance
with state law. Pet. App. 24a. OSM officials concluded,
however, that M & J Coal's operations posed an immi-
nent danger to. the health and safety of the public.
___________________(footnotes)
rather than from the surface of the earth, although the error
did not affect its legal analysis.
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9
OSM therefore issued a cessation order, dated April
25, 1986, directing M & J Coal to halt its operations
until it had safeguarded the public from surface
cracks, restored the land's capacity to support prior
uses, and revised its subsidence control plan "to
ensure that the health and safety of the general public
[would] not be endangered." C.A. App. 35; see Pet. App.
8a-9a,24a-25a. Five days later, M&J Coal proposed to
revise its subsidence control plan to increase (to
thirty degrees) the angle of draw used to limit mining
under protected surface features and to treat occupied
houses as protected features.   Id. at 9a, 25a. Based on
M & J Coal's agreement to make those revisions, OSM
lifted its cessation order. Ibid.
      3. M & J Coal sought administrative review of
OSM's cessation order and its related recommendation
that M & J Coal be required to pay a $2,700 fine. An
Administrative Law Judge (ALJ) in the Department of
the Interior's Office of Hearings and Appeals upheld
OSM's actions as a valid exercise of its authority
under SMCRA Section 521(a)(2). C.A. App. 74-87. In
the ALJ's view, events at the TarIey and Dingus resi-
dences fully supported OSM's finding that M & J Coal
had caused "imminent danger to the health or safety of
the public." OSM, the ALJ found, "would have been
grossly remiss in its enforcement role had it not
ordered a cessation of M & J's underground coal
mining operations." Id. at 82; see id. at 86 (assessing
civil penalty of $3,500).
     The ALJ's ruling was affirmed by the Interior Board
of Land Appeals (IBLA). The IBLA found that the
effects of the subsidence, including ruptured gas and
water lines, shifted electric utility poles, and a crack
in the ground so large that a dog fell in and died before
rescuers could reach it, "present[ed] a graphic picture
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10
of an imminent danger situation." M & J Coal v. OSM,
115 I.B.L.A. 8, 23 (1990); see C.A. App. 264-265. Ac-
cordingly, the IBLA concluded that OSM's cessation
order had been fully authorized by Section 521(a)(2) of
the SMCRA. M & J Coal did not seek judicial review
of the IBLA's decision. See Pet, App. 9a, 15a.
     4. In April 1992, petitioners filed suit in the Court of
Federal Claims (CFC), alleging that OSM's actions
had effected a taking of two categories of coal deposits:
(1) portions of the seam that were placed off-limits by
the change from a fifteen-degree to a thirty-degree
angle of draw to delineate the area of support under
protected surface features; and (2) portions of the seam
that were placed off-limits by the extension of sub-
sidence protection to occupied dwellings. The CFC
granted the United States' motion for summary
judgment. Pet. App. 17a-38a. The court pointed out
that petitioner! had acquired their interests in the
Monongah Mine after Congress directed OSM, in
Section 521(a)(2) of the SMCRA, to halt mining prac-
tices that endanger the public health and safety. That
provision, the CFC found, precluded petitioners from
forming a compensable expectation that they would be
able to mine under a fifteen-degree subsidence control
plan or to cause-subsidence damage to occupied houses.
Pet. App. 33a, 36a. The court noted that the validity
of OSM's cessation order as an exercise of its man-
date under Section 521(a)(2) had been definitively
established by the final, unchallenged decision of the
IBLA. Pet. App. 33a & n.3.
     5. The court of appeals affirmed. Pet. App. 3a-16a.
The court concurred in the CFC's determination that
petitioners had never acquired the property rights
that OSM's cessation order was alleged to have
infringed. Id. at 13a. The court ruled that M & J Coal
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11
"knew or should have known" in November 1985, when
it leased its mining rights from Monongah Develop-
ment, "that it could not mine in such a way as to
endanger public health or safety." Id. at 14a. 11 In the
view of the court of appeals, the IBLA's ruling that
OSM had acted properly to avert an imminent threat to
public health and safety was "incontestable" in light of
M & J Coal's failure to seek judicial review, ibid., and
foreclosed the argument that OSM had impermissible
transferred property from petitioners to the Dingus
and Tarley families, id. at 15a-16a.
 ARGUMENT
     The judgment of the court of appeals is correct and
does not conflict with any decision of this Court or any
other court.  Further review is therefore unwarr-
anted.
    1. "[T]he range of interests that qualify for protec-
tion as `property' under the Fifth (and Fourteenth)
amendments" is defined by .11.existing rules or under-
standings that stem from an independent source such
as state law," and "the Takings Clause does not re-
quire compensation when an owner is barred from put-
ting land to a use that is proscribed by those `existing
rules or understandings.'" Lucas v. South Carolina
Coastal Council, 112 S. Ct. 2886, 2901 (1992) (quoting
Board of Regents v. Roth, 408 U.S. 564,577 (1972)). By
July 1981, when Monongah Development acquired its
interest in the Monongah Mine, the surface effects of
underground mining were strictly regulated under
    ___________________(footnotes)
11     The court did not discuss the rights that Monongah
Development acquired in JuIy 1981, see page 6, supra, though
the same limitations clearly existed at that time, since Section
521(a)(2) of the SMCRA dates from 1977.
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12
both federal and state law. Because those restrictions
on petitioners' mining activities "inhere[d] in the title
itself," Lucas, 112 S. Ct. at 2900, application of the
federal regulatory scheme could effect no compensable
taking.
     Petitioners contend (Pet. 19-22) that under West
Virginia law their proposed mining activities would
have constituted at most a private nuisance; that the
Dingus and Tarley families would have been entitled to
no state-law remedy because their predecessors in
interest had relinquished by contract all rights of
subjacent support for the relevant surface estates;
and that the restrictions imposed by OSM went
beyond those imposed by background principles of
state property law. That argument is flawed in two
respects.
     First, federal law is itself a source of "relevant back-
ground principles," Lucas, 112 S. Ct. at 2901, that may
serve to define the scope of constitutionally protected
property interests. In Lucas, this Court identified the
federal navigational servitude at issue in Scranton V.
Wheeler, 179 U.S. 141, 163 (1900), as an example of a
"pre-existing limitation upon the landowner's title"
that may foreclose a claim for compensation. 112 S. Ct.
at 2900; accord United States v. Cherokee Nation of
Oklahoma, 480 U.S. 700, 703-704 (1987). This Court
has frequently looked to rules and understandings
supplied by federal law to assess the expectations that
takings claimants could reasonably have entertained
at the time of their investments. 12 Since petitioners
___________________(footnotes)
12  See, e.g., Concrete  Pipe & Prods. of California, Inc.
v. Construction Laborers Pension Trust, 113 S. Ct. 2264,
2291 (1993) (pension plan liabilities); Connolly v. Pension
Benefit Guaranty Corp., 475 U.S. 211, 224-225 (1986) (same);
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13
acquired their mineral interests well after passage of
the SMCRA, they can assert no rights inconsistent
with the Act's requirements.  13.
It is far from clear, moreover, that the OSM ces-
sation order actually imposed restrictions going be-
yond those applicable under state law. Since 1980,
Ruckleshaus v. Monsanto Co., 467 U.S. 986, 1006-1007 (1984)
(pesticide safety data supplied to the government); see also
Golden Pacific Bancorp v. United States, 15 F.3d 1066, 1074-
1075 (Fed. Cir. 1994) (shareholder in bank that federal
regulators took over lacked "historically rooted expectation of
compensation" required to support taking claim); California
Housing Securities, Inc. v. United States, 959 F.2d 955, 958-959
(Fed. Cir.) ("history of governmental regulation of savings and
loan associations" precluded owner from asserting "historically
rooted expectation of compensation" for federal takeover), cert.
denied, 113 S. Ct. 324 (1992).
13     Petitioners also assert (Pet. 18) that OSM misused its
authority under Section 521(a)(2) of the SMCRA to confer
"economic benefits on the Dingus and Tarley families alone, at
the expense of petitioners," and that OSM's actions therefore
"cannot be said [to have] substantially advanced a legitimate
public interest."  That characterization of OSM's actions is
foreclosed, as both lower courts noted (see Pet. App. 15a-16a, 33a
& n.3), by the IBLA's determination, which petitioners declined
to challenge in district court, that OSM acted properly to abate
an imminent threat to the public health and safety.  Under
established principles of Tucker Act jurisdiction, the IBLA's
determination was not subject to collateral attack in petitioners'
suit for compensation. See  id. at 15a, 33a (citing Florida Rock
Indus. v. United States, 791 F.2d 893 (Fed. Cir. 1986), cert.
denied, 479 U.S. 1053 (1987)); accord, e.g., Tabb Lakes, Ltd.
v. United States, 10 F.3d 796, 802-803 (Fed. Cir. 1993).
Petitioners' characterization of OSM's actions is also contra-
dicted by the record, which makes clear that the subsidence
caused by petitioners' mining activities created hazards (e.g., the
increased risk of a gas explosion, an electrical fire, or a gap in a
public road) to the public generally.
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14
West Virginia has had its own statutory prohibition on
mining practices that create an "imminent danger to
the health or safety of the public," 1980 W. Va. Acts
ch. 87,  20-6-16(a) (1981) [current version codified at
W. Va. Code  22-3-14(b)(1) and (c)-(d) (1994))-a
prohibition virtually identical to SMCRA Section
521(a)(2). 14. The IBLA's determination that M & J
Coal's operations threatened the public health and
safety also has implications under West Virginia's
corm-non law of nuisance. Under West Virginia law, a
valid waiver of the right of subjacent support shields a
mineral estate owner from most tort claims by the
owner of the unsupported surface estate.  .15. But the
___________________(footnotes)
14    Petitioners point out (Pet. 7, 16) that WVDOE officials
were prepared, on April 25, 1986, to allow M & J Coal to operate
under its initial subsidence controI plan, notwithstanding reports
from the Tarley and Dingus homes. But state officials' pur-
of-the-moment assessment that. M & J Coal's initial subsidence
control plan satisfied West Virginia law, an assessment reached
in response to federal officials' request for immediate state
action, was neither final nor conclusive. Indeed, WVSCMRA
includes a citizen-suit provision, see W. Va. Code  22-3-25 (a)(l)
(1994), to ensure-that state courts are able to correct state
regulators who have taken an unduly limited view of their
responsibilities under WVSCMRA. The decision of  WVDOE
officials not to issue a state cessation order neither reflected nor
created a state-law right for M & J Coal to mine under its initial
subsidence control plan.
15     See, e.g., Winnings v. Wilpen Coal Co., 59 S.E.2d at 658-
661. But see Stamp v. Windsor Power House Coal Co., 177
S-E-2d at 150 (waivers may only bar "recovery for negligencc,"
not for "wilful or wanton" acts); Johnson v. Junior Pocahontas
Coal Co., 234 S.E.2d 309,313,314 (W. Va. 1977) (coal company's
reservation of right to produce coal "without liability for
damage and injury to and destruction of the surface" cannot "be
raised as a complete shield from all liabilities which may be
indicated by evidence showing defendant's violations of rules,
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15
subsidence that prompted OSM to act in this case
threatened harm to parties outside the chains of title
to the severed mineral and surface estates. Dangers
associated with ruptured gas, electrical, and water
lines are not confined to the boundaries of the surface
estate where the subsidence occurs. Since deed-based
immunity from liability for subsidence harms reaches
only to the boundary of the unsupported surface estate,
see note 1, supra, any deed-based rights that
petitioners acquired to subside occupied dwellings
were limited by the protections that West Virginia
nuisance doctrine provides to neighboring property
owners and to the public at large.   16.
___________________(footnotes)
regulations and laws, its wilful, wanton and reckless actions and
conduct, or its creation of hazardous or nuisance conditions
incident to its strip mining operations").
16      West Virginia law concerning the construction of
severance deeds may also limit petitioners' rights to subside
occupied dwellings. West Virginia's Supreme Court of Appeals
has emphasized that broad form waiver provisions must be
"construed in light of the conditions and reasonable expectations
of the parties." Cogar v. Sommerville, 379 S.E.2d 764, 769 (W.
Va. 1989). Thus, "mining methods not contemplated at the time
of the severance deed may not be utilized." Ibid.; see Brown v.
Crozer  Coal & Land Co., 107 S.E.2d 777, 786-787 (W. Va. 1959)
(auger mining was not contemplated by sellers of mineral estates
and, therefore, not covered by waiver). But cf. Ball v. Island
Creek Coal Co., 722 F. Supp. 1370, 1372-1374 (W.D. Va. 1989)
(because longwall mining is different from early forms of
subsurface mining in degree, not in kind, subsidence damage
from longwall mining falls within scope of broad form waiver).
Petitioners have repeatedly acknowledged that M & J Coal was
able to extract profitable quantities of coal from the twice-
worked Monongah Mine only by exploiting "advances * * * in
mining equipment and technology" that allowed significantly
higher rates of extraction. Pet. 4; see Pet. App. 19a.
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16
   In sum, legal principles in existence when peti-
tioners acquired their mineral interests sharply lim-
ited their right to subside the surface overlying the
Monongah Mine. OSM's April 25, 1986, cessation order
merely enforced those pre-existing limitations. Be-
cause a right to endanger public health and safety
"w[as] not part of [petitioners'] title to begin with,"
Lucas, 112 S. CT. at 2899, the cessation order could not
effect a taking of petitioners' property.
2.    Even if OSM'S enforcement action had imposed
new limitations on petitioners' mineral estates, those
limitations would not rise to the level of a Fifth
Amendment taking. In Concrete Pipe & Prods. of
California, Inc. v. Construction Laborers Pension
Trust, 113 S. Ct. 2264, 2291 (1993), this Court
reaffirmed the, framework first articulated in Penn
Central Tramp. Co. v. New York City, 438 U.S. 104,
125 (1978), for evaluating regulatory takings claims.
That approach focuses on "three factors with partic-
ular significance' for assessing whether a land use re-
striction effects a Fifth Amendment taking (1) the
character of the governmental action; (2) the extent to
which the regulation has interfered with distinct
investment-backed expectations; and (3) the economic
impact of the regulation on the claimant. See Concrete
Pipe, 113 S. Ct. at 2291 (quoting Connolly v. Pension
Benefit Guaranty Corp., 475 U.S. 211,224-225 (1986)).
Under that framework, the limitation on mining at
issue here would not effect a taking even if they had
been imposed after petitioners acquired their mineral
interests.
     Essentially for the reasons discussed above, the
first two factors strongly indicate that no taking
occurred here. OSM issued its cessation order in
furtherance of its statutory mandate to abate "an
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17
imminent danger to the public health and safety."
SMCRA 521(a)(2), 30 U.S.C. 1271(a)(2). Two admin-
istrative tribunals rejected M & J CoaI's arguments
that OSM had exceeded the scope of that mandate, and
petitioners declined to seek direct judicial review.
Moreover, the requirements of the SMCRA (at least
as applied in this case) differ little, if at all, from
applicable state-law norms. Accordingly, petitioners
can establish no substantial interference with
investment-backed expectations.
     Nor have petitioners shown that OSM's cessation
order imposed an onerous economic burden. Peti-
tioners have not disputed the CFC's finding that
M & J Coal realized profits of $692,086.41 from the
Monongah Mine during the period from 1985 through
1989--a 34.5% annual rate of return on its initial
investment. Pet. App. 28a; see id. at 10a n.5 (court of
appeals' recitation of CFC figure> see also Pet. C.A.
Reply Br. 4 (concession that "the Companies realized
a profit on their efforts even after the taking").
Although the record does not disclose Monongah
Development's profits, Monongah also appears to have
done quite well. After purchasing the rights to re-
work the Monongah Mine for $400,000 in July 1981,
Monongah Development leased those rights to Pitts-
burgh Coal Works (PCW) on undisclosed terms for
three years before leasing the mine to M & J Coal in
1985. See C.A. App. 380, 383, 386. Based on M & J
Coal's sales figures for the period from 1986 through
1989 (the only years for which M & J Coal's sales
figures were made available), it appears that Monongah
Development's royalties for that period alone repaid
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18
more than half of its initial investment. 17.  The
economic effects of the alleged infringement on
petitioners' property interests, in short, provide no
support for their takings claims. See Keystone
Bituminous Coal Ass'n   v. DeBenedictis, 480 U.S. 470,
495-496 (1987) (rejecting  claim that anti-subsidence
statute took coal operators' property, where plaintiffs
failed to demonstrate that any mine had been rendered
unprofitable).
     Petitioners  seek to avoid this analysis by claiming
to have suffered a total loss of the value of a smaller
parcel of property. See Pet. 17-19. The relevant
property, they contend, is not the mineral estate that
Monongah Development acquired in 1981, or even the
diminished mineral estate that Monongah Develop-
ment leased to M & J Coal in late 1985. Rather, peti-
tioners claim a total taking of "defined blocks of coal,"
totalling 99,700 tons, that M & J Coal's revised subsi-
dence plan allegedly required it to leave in place. Al-
ternatively, they claim a total loss of the support es-
tate underlying protected surface features. Pet. 12,
18-19.
     Essentially the same arguments were squarely
rejected by this Court in Keystone. Although the
parties in that case had stipulated that a Pennsylvania
anti-subsidence would require the plaintiffs "to
leave approximately 27 million tons of coal in place,"
the Court found that this coal did "not constitute a
separate segment of property for takings law pur-
poses." 480 U.S. at 498; accord Concrete Pipe, 113 S.
___________________(footnotes)
17 See C.A. App. 107-110 (listing coal sales from the
Monongah Mine totaling $5,666,667 for the period from 1986 tO
1989); id. at 386 (M & J Coal's agreement to pay royalties set at
4% of gross sales).
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19
Ct. at 2290 (property cannot be "divided into what was
taken and what was left for the purpose of demon-
strating the taking of the former to be complete and
hence compensable'')..18.' The Court also refused to
segment the mine operators' mineral interests by
treating the "support estate" as a separate form of
property that had been rendered valueless. The Court
acknowledged that Pennsylvania property law, which
was "apparently unique" in this respect, treated "the
support estate as a separate interest in land that can
be conveyed apart from either the mineral estate or
the surface estate." 480 U.S. at 500. The Court found,
however, that its earlier takings decisions "fore-
closed] reliance on such legalistic distinctions with-
in a bundle of property rights." Ibid. (citing Penn
Central, 438 U.S. at 130 (air rights), and Andrus v.
Allard, 444 U.S. 51, 65-66 (1979) (right to sell
property)); see Keystone, 480 U.S. at 501 (noting that
the only practical value of the support estate is as
a complement to either the surface or the mineral
___________________(footnotes)
18     The Keystone dissent, citing the parties' stipulation that
27 million tons of coal had been locked in place by the statute
and regulations at issue there, would have treated the retained
coal as a distinct segment of property under the circumstan-
ces of that case. 480 U.S. at 514, 517-518 (Rehnquist, C. J.,
dissenting). Here, however, there is no such stipulation. In
fact, it is possible that petitioners could have substituted other
forms of support for retained coal deposits. See W. Va. CSR
38-3-12(a)(7)(A) and (D) (1991) (authorization for operators to
use "backstowing" or "backfilling" as alternatives. to coal
retention).  Petitioners offered no evidence that such
alternatives were technically or economically infeasible in the
Monongah Mine.
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20
estate).19 .The" Court thus squarely rejected the
arguments advanced by petitioners here. Petitioners'
takings claim would therefore fail even if OSM's en-
forcement action had infringed on rights inherent in
their title.
        CONCLUSION
     The petition for a writ of certiorari should be
denied.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
ALBERT M. FERLO, Jr.
JEFFREY P. KeHNE
Attorneys
JULY 1995
___________________(footnotes)
19    The Keystone dissent took the position that Pennsylvania's
atypical treatment of the right of subjacent support provided
alternative grounds for segmentation. See 480 U.S. at 520 & n.8.
That argument for segmentation of the support estate has no
application to the instant case. Although petitioners insist (Pet.
23) that their right of subjacent support represents a "distinct
property interest," the only authorities cited in support of that
proposition are two state trial court opinions (see Pet. App. 39a-
48a), neither of which suggests that West Virginia treats this
right as a "third estate" that can be conveyed independently of
surface and mineral rights.