OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 189

August 1991

Michael Lepchitz, Esquire

Office of the Attorney General

P.O. Drawer U

Big Stone Gap, Virginia 24219

TOPIC: SUBSIDENCE AND PUBLIC LAND USE; TAKINGS 

INQUIRY: Virginia deleted 160 acres from a coal company's underground mining permit at the 

time it was renewed. A new prison facility is to be constructed over the deleted acreage and the 

state believed that any subsidence from a mine under the site would affect the prison structure 

and the high-technology electronics the state will be using. The Division of Mined Land 

Reclamation subsequently approved a revision to the permit reinstating the 160 acres, but added 

several conditions to the permit. The coal company is suing on the grounds that new conditions 

constitute a taking of the 160 acres. Please locate any relevant case law. 

SEARCH RESULTS: Research was conducted using LEXIS, existing COALEX Inquiry 

Reports and materials from an Interior symposium on valid existing rights held in April, 1990. 

Articles from the Interior "Symposium on Valid Existing Rights", reported in the Journal of 

Mineral Law & Policy and the Annotations listed below provide good overviews of "takings" 

law. The most relevant cases from these sources are also listed below. One state case, 

DEPARTMENT OF NATURAL RESOURCES v INDIANA COAL COUNCIL, was identified 

that is particularly relevant to the inquiry presented here. Copies of materials discussed below are 

attached. 

NOTE: This Report continues some of the research included as part of COALEX STATE 

INQUIRY REPORT - 106, "Constitutionality of the 300 foot waiver requirements" (1989). 

Report 106 and COALEX State Inquiry Report - 139, "Valid existing rights" (1990) are also 

attached.

OVERVIEW OF RELEVANT LAW

Mansfield, "Regulatory Takings, Expectations and Valid Existing Rights", 5 J. Mineral Law 

& Policy 3, p. 431 (1990).

In particular, see sections "II. Takings Jurisprudence Reviewed" and "III. 'Takings Test' Would 

not Generally Protect Industry".
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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McGinley, "Of Pigs and Parlors: Regulatory Takings in the Coal Fields", 5 J. Mineral Law 

& Policy 3, p. 473 (1990). 

In particular, see sections "III. Taking by Eminent Domain and by Deprivation of Due Process" 

and "IV. Untangling the Web: The Court's KEYSTONE Decision Clarifies Takings Law and 

PENNSYLVANIA COAL".

ANNOTATION, "Validity and Construction of Statutes Regulating Strip Mining", 86 

A.L.R. 3d 27(1990). 

See section 2c "Practice pointers" for the discussion of police powers: 

"A regulation under the police power of the state is generally considered justified if three criteria 

are met: (1) the interest of the public generally, as distinguished from those of a particular class, 

must require the regulatory interference; (2) the means chosen must be reasonable necessary for 

the accomplishment of the purpose; and (3) the means must not be unduly oppressive upon the 

individual."

ANNOTATION, "Supreme Court's views as to what constitutes 'taking' within meaning of 

Fifth Amendment's command that private property not be taken for public use without 

just compensation", 57 L Ed. 2d 1254.

The Supreme Court, generally relying on the particular circumstances of each case, "has 

identified certain broad factors which are relevant in determining whether there has been a 

'taking' for Fifth Amendment purposes: (1) the economic impact of the regulation on the 

claimant and, particularly, the extent to which the regulation has interfered with distinct 

investment-backed expectations, and (2) the character of the governmental action in question, the 

court pointing out that a 'taking' may more readily be found when the interference with property 

can be characterized as a physical invasion by government than when interference arises from 

some public program adjusting the benefits and burdens of economic life to promote the 

common good."

"[T]he application of particular land use regulations had been held under various circumstances 

not to amount to a 'taking' of property, the court expressing a very tolerant view of such 

regulations."

FEDERAL CASE LAW

PENNSYLVANIA COAL CO. v MAHON, 260 U.S. 393 (1922).

The court held that the Pennsylvania statute regulating subsidence was invalid; it effected a 

"taking" without just compensation because the statute made it commercially impracticable to 

mine the coal and had nearly the same effect as the complete destruction of the mineral rights the 

claimant had purchased from the owners of the surface land.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"SYLLABUS: 

1. One consideration in deciding whether limitations on private property, to be implied in 

favor of the police power, are exceeded, is the degree in which the values incident to the 

property are diminished by the regulation in question; and this is to be determined from 

the facts of the particular case. 

2. The general rule, at least, is that if regulation goes too far it will be recognized as a taking 

for which compensation must be paid." 

PENN CENTRAL TRANSPORTATION CO. v NEW YORK CITY, 438 U.S. 104 (1978), 

reh den, Penn Cent. Transp. Co. v New York, 439 U.S. 883 (1978).

In considering the application of landmark preservation law, the court found that developing 

rules to determine what constitutes a "taking" was difficult; therefore, determinations will depend 

on the circumstances of each case. The factors to be taken into consideration in making a 

determination include: 

1. The economic impact of the regulation on the claimant and particularly, the extent to 

which the regulation interfered with investment-backed expectations.

2. The character of the governmental action in question. 

From the ANNOTATION, 57 L Ed. 2d 1254, Sec. 7 Land Use Regulations:

"(1) the law did not interfere with the present use of the building, but allowed the owner to 

continue using it as had been done in the past, permitting the owner to profit from the building 

and obtain a reasonable return on its investment; (2) the law did not necessarily prohibit 

occupancy of any of the air space above the landmark building, since under the procedures of the 

law, it was possible that some construction in the air space might be allowed; and (3) the law did 

not deny all use of the owner's pre-existing air rights above the landmark building".

AGINS v CITY OF TIBURON, 447 U.S. 255 (1980).

"The application of a general zoning law to particular property effects a taking if the ordinance 

does not substantially advance legitimate state interests...or denies an owner economically viable 

use of his land.... The determination that governmental action constitutes a taking is, in essence, 

a determination that the public at large, rather than a single owner, must bear the burden of an 

exercise of stat power in the public interest. Although no precise rule determines when property 

has been taken...the question necessarily requires a weighing of private and public interests."

KEYSTONE BITUMINOUS COAL ASSN. v DEBENEDICTIS, 480 U.S. 470 (1987).

In this challenge to Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act 

[Act], the court ruled that PENNSYLVANIA COAL, above, did not control:
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"Unlike the statute considered in PENNSYLVANIA COAL, the Act is intended to serve 

genuine, substantial, and legitimate public interests in health, the environment, and the fiscal 

integrity of the area by minimizing damage to surface areas.... Thus, the Commonwealth has 

merely exercised its police power to prevent activities that are tantamount to public nuisance."

"The record in this case does not support a finding similar to the one in Pennsylvania Coal that 

the Act makes it impossible for petitioners to profitably engage in their business, or that there has 

been undue interference with their investment-backed expectations."

Also see NOLLAN v CALIF. COASTAL COMMN., 483 U.S. 825 (1987).

WHITNEY BENEFITS, INC. v UNITED STATES, 926 F 2d 1169 (Fed Cir 1991), cert. den. 

UNITED STATES v WHITNEY BENEFITS, INC. 502 U.S. 952 (1991). WHITNEY 

BENEFITS, INC. v UNITED STATES, 18 Ct. Cl. 394 (Ct Cl 1989, corrected 1990). WHITNEY 

BENEFITS, INC. v UNITED STATES, 752 F 2d 1554 (Fed Cir 1985).

The Court of Appeals for the Federal Circuit affirmed the Claims Court finding that "on 

enactment SMCRA's prohibition of surface mining of alluvial valley floors (AVF's) constituted a 

taking of the Whitney coal property." The ruling included payment of $60 million plus interest to 

Whitney Benefits. 

STATE CASE LAW

DEPT. OF NATURAL RESOURCES (DNR) v INDIANA COAL COUNCIL, INC., 542 NE 

2d 1000 (Ind 1989), cert. den. INDIANA COAL COUNCIL, INC. v INDIANA DEPT. OF 

NATURAL RESOURCES, 493 U.S. 1078 (1990).

The Wabash Valley Archaeological Society petitioned DNR to have the Beehunter site 

designated as an area unsuitable for surface coal mining because of its archeological 

significance. The director of DNR made an initial determination that Beehunter was an area 

unsuitable for surface coal mining. As part of the final order, the director included a mitigation 

plan which provided a means by which the designation of "area unsuitable" could be removed. 

The court held that the final order which provided a mitigation plan "did not amount to an 

unconstitutional taking of property."

ATTACHMENTS

A. Mansfield, "Regulatory Takings, Expectations and Valid Existing Rights", 5 J. Mineral 

Law & Policy 3, p. 431 (1990). 

B. McGinley, "Of Pigs and Parlors: Regulatory Takings in the Coal Fields", 5 J. Mineral 

Law & Policy 3, p. 473 (1990). 

C. ANNOTATION, "Validity and Construction of Statutes Regulating Strip Mining", 86 

A.L.R. 3d 27 (1990). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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D. ANNOTATION, "Supreme Court's views as to what constitutes 'taking' within meaning 

of Fifth Amendment's command that private property not be taken for public use without 

just compensation", 57 L Ed. 2d 1254. 

E. PENNSYLVANIA COAL CO. v MAHON, 260 U.S. 393 (1922). 

F. PENN CENTRAL TRANSPORTATION CO. v NEW YORK CITY, 438 U.S. 104 

(1978), reh den, PENN CENT. TRANSP. CO. v NEW YORK, 439 U.S. 883 (1978). 

G. AGINS v CITY OF TIBURON, 447 U.S. 255 (1980). 

H. KEYSTONE BITUMINOUS COAL ASSN. v DEBENEDICTIS, 480 U.S. 470 (1987). 

I. NOLLAN v CALIF. COASTAL COMMN., 483 U.S. 825 (1987). 

J. WHITNEY BENEFITS, INC. v UNITED STATES, 926 F 2d 1169 (Fed Cir 1991), cert. 

den. UNITED STATES v WHITNEY BENEFITS, INC. 502 U.S. 952 (1991). 

K. WHITNEY BENEFITS, INC. v UNITED STATES, 18 Ct. Cl. 394 (Ct Cl 1989, 

corrected 1990). 

L. WHITNEY BENEFITS, INC. v UNITED STATES, 752 F 2d 1554 (Fed Cir 1985). 

M. DEPT. OF NATURAL RESOURCES (DNR) v INDIANA COAL COUNCIL, INC., 542 

NE 2d 1000 (Ind 1989), cert. den. INDIANA COAL COUNCIL, INC. v INDIANA 

DEPT. OF NATURAL RESOURCES, 493 U.S. 1078 (1990). 

N. COALEX STATE INQUIRY REPORT - 106, "Constitutionality of the 300 foot waiver 

requirements" (1989). [Enclosed without attachments.] 

A. WILLOWBROOK MINING CO. v COMMONWEALTH OF 

PENNSYLVANIA, 499 A.2d 2 (1985) 

B. HODEL v VIRGINIA SURFACE MINING & RECLAMATION 

ASSOCIATION, 452 U.S. 264 (1981) 

C. HODEL v INDIANA, et al., 452 U.S. 314 (1981) 

D. NATIONAL WILDLIFE FEDERATION v HODEL, 839 F.2d 694 (1988) 

E. WILLIAMSON COUNTY REGIONAL PLANNING COMMISSION v 

HAMILTON BANK OF JOHNSON CITY, 473 U.S. 172 (1985) 

F. BURLINGTON NORTHERN RAILROAD CO. v U.S., 752 F.2d 627 (1985) 

G. AINSLEY v U.S., 8 Cl. Ct. 394 (1985) 

H. GINN v CONSOLIDATION COAL CO., 437 N.E.2d 793 (1982) 

I. SMITH v NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION 

CABINET, 712 S.W.2d 951 (1986) 

O. COALEX STATE INQUIRY REPORT - 139, "Valid existing rights" (1990). [Enclosed 

without attachments.] 

A. COALEX STATE INQUIRY REPORT - 13. 

B. US v POLINO, 131 F Supp 772 (ND W Va 1955). 

C. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Rule. [Excerpts only 

attached.] 

D. 44 FR 67942 (NOVEMBER 27, 1979). Notice of suspension of certain rules in 30 

CFR Chapter VII. [Excerpts only attached.] 

E. 45 FR 8241 (FEBRUARY 6, 1980). Proposed rulemaking. [Excerpts only 

attached.] 

F. 45 FR 51547 (AUGUST 4, 1980). Notice of suspension and statement of policy 

regarding effect on State programs. [Excerpts only attached.] 

G. 47 FR 25278 (JUNE 10, 1982). Proposed rules. [Excerpts only attached.] 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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H. 48 FR 41312 (SEPTEMBER 14, 1983). Final rules. [Excerpts only attached.] 

I. IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 22 

ERC 1557, Mem op (D DC March 22, 1985). 

J. 51 FR 41952 (NOVEMBER 20, 1986). Final rule; suspension. 

K. 52 FR 2421 (JANUARY 22, 1987). Notice of intent to prepare an environmental 

impact statement (EIS) and a preliminary regulatory impact analysis (RIA). 

L. 53 FR 52374 (DECEMBER 27, 1988). Proposed rules. 

M. 54 FR 989 (JANUARY 11, 1989). Notice. 

N. 54 FR 4837 (JANUARY 31, 1989). Notice of public hearings. 

O. 54 FR 9847 (MARCH 8, 1989). Notice of reopening of public comment period. 

P. 54 FR 30557 (JULY 21, 1989). Withdrawal of proposed rule. 

Q. DASET MINING CORP. v COMMONWEALTH OF PENN., DEPT OF 

ENVIRONMENTAL RESOURCES (DER), 1981 EHB 109 (1981). 

R. WILLOWBROOK MINING CO. v COMMONWEALTH OF PENN., DEPT OF 

ENVIRONMENTAL RESOURCES, 92 Pa Commw 163, 499 A 2d 2 (Pa 

Commw Ct 1985). 

S. COGAR et al. v FAERBER AND SPRING RIDGE COAL CO., 371 SE 2d 321 

(W Va 1988). 

T. COGAR et al. v SOMMERVILLE; SPRING RIDGE COAL CO., INC.; AND 

PARDEE & CURTIN LUMBER CO., 379 SE 2d 764 (W Va March, 1989). 

U. EVANGELINOS v DIV. OF RECLAMATION, Case No. 88-B-12, 1989 Ohio 

App LEXIS 3618 (Ohio Ct App September, 1989). 

V. RUSSELL v ISLAND CREEK COAL CO. AND FAERBER, No. 19104, 1989 W 

Va LEXIS 986 (W Va December, 1989); rehearing refused February, 1990. 

W. Illinois: 54 FR 118 (January 4, 1989). 

X. Kansas: 53 FR 39467 (October 7, 1988). 

Y. Ohio: 53 FR 51543 (December 22, 1988). 

Z. Oklahoma: 54 FR 37454 (September 11, 1989). 

AA. Pennsylvania: 54 FR 29704 (July 14, 1989). 

BB. Tennessee: 49 FR 38874 (October 1, 1984). 

CC. Texas: 45 FR 78635 (November 26, 1980). 

DD. TABLE OF REGULATIONS