OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 4

COALEX STATE INQUIRY REPORT - 320

March 1995

Sandra B. Riggs

Assistant Attorney General

Office of the Attorney General

P.O. Drawer 900

Big Stone Gap, Virginia 24219

TOPIC: REGULATION OF SITES WITH OIL OR GAS OPERATIONS AND COAL 

MINING OPERATIONS 

INQUIRY: Please locate material that discusses the application of SMCRA regulations, 

requirements and standards to sites where oil or gas operations exist. If the mining and 

oil/gas operations are regulated by different state agencies, which requirements and 

standards apply? 

SEARCH RESULTS: Research was conducted using the COALEX Library and other 

materials available in LEXIS. Most of the cases retrieved during research addressed 

property rights (deeds, leases, mineral rights, easements) and zoning questions 

(between state and locality). Two state cases were identified that discuss the permitting 

of oil and gas operations in areas with active coal mining operations. These are listed

below and copies are attached. Also included are a number of non-mining cases where 

the state courts ruled on questions of concurrent or overlapping jurisdiction between 

state agencies and excerpts from two Federal Register Notices. 

PERMITTING OF OIL AND GAS OPERATIONS IN AREAS WITH ACTIVE COAL 

MINING OPERATIONS

REDMAN v OHIO DEPT. OF INDUS. RELATIONS, 1994 Ohio App. LEXIS 3953 

(Ohio Ct App 1994).

Redman applied to the Ohio Department of Natural Resources for permits to drill oil and 

gas wells. The Division of Oil and Gas forwarded the applications to the Ohio Division of 

Mines (ODM) after determining that the wells were located "within a coal bearing 

township". ODM denied the applications for the wells, agreeing with the objections put 

forth by the Central Ohio Coal Co. that the proposed well sites would affect Central 

Ohio's mines. Redman appealed. Permit disapproval was affirmed.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 4

"Initially, we note that the General Assembly has enacted R.C. 1509.08 to establish a 

procedure for the regulation of coal mining and oil and gas drilling when those natural 

resources exist within the same location. The statute further provides that in the event of 

a conflict, i.e., when a mining location would be affected by a proposed oil and gas well 

and the mine owner offers a well founded objection, the statute mandates that the 

drilling of oil and gas wells be deferred until such time as the mining location is no 

longer affected. It is well-settled that where different persons have conflicting interests in 

development of the same property, the state may legitimately exercise its police power 

to protect one interest over another if it considers the favored interest impaired."

"Furthermore, in addition to the state's interest in the health and safety of both oil and 

gas and coal workers, the state also has a legitimate interest in the efficient and 

effective development of Ohio coal reserves and the preservation of the state's natural 

resources."

EINSING v PENNSYLVANIA MINES CORP. (PMC), 452 A 2d 558 (Pa Commw Ct 

1982).

The court reinstated Einsing's permit to drill for oil and gas despite PMC's objection to 

the "offset nature" of these wells, based on economic factors. DER construed the 

language of the statute "as indicative of a legislative intent that DER remain neutral in 

an economic dispute between a well-driller and a coal operator." In reversing the 

Environmental Hearing Board, the court determined that the evidence did "not support 

the conclusion that the well will unduly interfere with or endanger the mine."

CONCURRENT OR OVERLAPPING JURISDICTION BETWEEN STATE AGENCIES

The cases listed below address questions of concurrent or overlapping jurisdiction 

between state agencies. While the agencies involved and the fact situations are not 

identical to the inquiry here, the manner in which the courts discuss and resolve the 

jurisdictional issues may be useful. 

CITY OF HACKENSACK v WINNER, 410 A 2d 1146 (NJ 1980).

This appeal arose as a result of conflicting decisions by two state agencies -- Civil 

Service Commission and Public Employment Relations Commission. The case 

originated as a dispute between the City of Hackensack and several of its firefighters 

after the firefighters claimed they were improperly denied promotions.

HINFREY v MATAWAN REGIONAL BD. OF EDUC., 391 A 2d 899 (NJ 1978).

The "ultimate question" to be answered here was which administrative agency, the 

Division on Civil Rights or the Commissioner of Education, should adjudicate complaints 

of "sex discrimination in courses of academic study and curricula in the public schools." 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 4

LIPSEY v TEXAS DEPT. OF HEALTH, 727 SW 2d 61 (Tex Ct App 1987).

Lipsey sued over the issuance of a permit authorizing North Texas Services to construct 

and operate a municipal solid-waste facility. Lipsey contended that the special 

conditions the State Department of Health put on the permit relating to access roads 

amounted to an "unlawful delegation" of functions to the county commissioners and the 

State Department of Highways and Public Transportation.

IN RE HAWK MT. CORP., 542 A 2d 261 (Vt 1988).

The court held the "the Environmental Board did not exceed its authority by requiring 

the appellants [developers wishing to expand a vacation home site] to obtain a water 

discharge permit...although the [Agency of Environmental Conservation] had waived 

this requirement.... The legislative scheme indicates that the legislature intended to 

confer upon the Board powers of a supervisory body in environmental matters."

ENGLISH BAY ENTERPRISES v ISLAND CITY, 568 P 2d 783 (Wash 1977).

The court found that the Department of Fisheries did not have exclusive authority over 

the harvesting of shellfish. Certain state statutes invested the Department of Ecology 

with responsibility over certain aspects of the harvesting operation.

FEDERAL REGISTER NOTICES

Excerpts from two Federal Register notices are also enclosed for background:

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final rule. 

Part 700. Definition of "person".

"It is true that a potential for interstate or intrastate conflict exists where the genuine 

interests of separate agencies may be involved.... The Act mandates the involvement of 

and close coordination among many different agencies.... OSM believes the 

involvement of other State and local agencies, which the Act specifies, establishes an 

interest on the part of those agencies in actions taken by the regulatory authority under 

State programs, particularly actions relating to permits and designations. Therefore, 

OSM believes that inclusion of the government agencies in the definition of 'person', is 

justified. OSM does not intend by this to expand upon an agency's capacity to sue or be 

sued where the Act does not clearly indicate that the agency has an interest in the 

actions being taken. In such situations, existing principles of State or Federal law would 

govern."

45 FR 72468 (OCTOBER 31, 1980). Proposed rule: partial approval and 

disapproval of the Illinois program.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 4

The Secretary found certain aspects of the Illinois program deficient. This included lack 

of information on the "coordination mechanisms to insure that interagency actions will 

be sufficient or timely" and the "specification of the decision authority in event of 

conflicts between agencies".

ATTACHMENTS

A. REDMAN v OHIO DEPT. OF INDUS. RELATIONS, 1994 Ohio App. LEXIS 3953 

(Ohio Ct App 1994). 

B. EINSING v PENNSYLVANIA MINES CORP., 452 A 2d 558 (Pa Commw Ct 

1982). 

C. CITY OF HACKENSACK v WINNER, 410 A 2d 1146 (NJ 1980). 

D. HINFREY v MATAWAN REGIONAL BD. OF EDUC., 391 A 2d 899 (NJ 1978). 

E. LIPSEY v TEXAS DEPT. OF HEALTH, 727 SW 2d 61 (Tex Ct App 1987). 

F. IN RE HAWK MT. CORP., 542 A 2d 261 (Vt 1988). 

G. ENGLISH BAY ENTERPRISES v ISLAND CITY, 568 P 2d 783 (Wash 1977). 

H. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final 

rule. Part 700. Definition of "person". 

I. 45 FR 72468 (OCTOBER 31, 1980). Proposed rule: partial approval and 

disapproval of the Illinois program. 

J. Outline of the proposed topic to be given at the Annual Institute of Eastern 

Mineral Law Foundation.