COALEX STATE INQUIRY REPORT - 106
February 17, 1989
Michael Lepchitz, Esquire
Commonwealth of Virginia
Office of the Attorney General
P.O. Drawer U
Big Stone Gap, Virginia 24219
TOPIC: CONSTITUTIONALITY OF THE 300 FOOT WAIVER REQUIREMENTS
INQUIRY: Locate any decisions testing the constitutionality of the 300 foot waiver requirement
[mining is not permitted within 300 feet of an occupied dwelling, unless waived by the owner
thereof]. The governing Virginia regulations are: Subchapter VF - Areas Unsuitable for Mining. In
particular, Section 480-03-19.761.11(e) [30 C.F.R. 761.11(e); Section 522(e) of SMCRA].
SEARCH RESULTS: Research was performed using COALEX, and state and federal decisions in
LEXIS. No relevant Office of Hearing and Appeal decisions were identified.
Two main issues are discussed in the state and federal cases identified:
1. Does the application of 522 (e) of SMCRA equal an unconstitutional taking of private
property?
2. Must administrative remedies be exhausted before requesting judicial review?
A list of the state and federal cases identified as a result of the research and the issues they
address follows. Complete copies of the three state and one U.S. Claims Court decisions are
attached. Due to the length of the remaining six federal court decisions, only the relevant portion
of the opinions are enclosed.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I. "TAKING" OF PRIVATE PROPERTY
Several state and federal court decisions were identified which question whether certain
regulations effect an uncompensated taking of private property in violation of the just
compensation clause of the Fifth Amendment.
In WILLOWBROOK MINING CO. v COMMONWEALTH OF PENNSYLVANIA, 499 A.2d 2 (1985),
the Commonwealth Court of Pennsylvania determined that Willowbrook failed to prove that the
statute prohibiting mining within 300 feet of an occupied dwelling was an unduly oppressive
exercise of police power. The Pennsylvania Environmental Hearing Board's finding "that the
statute did not result in an unconstitutional taking of Willowbrook's property" was affirmed.
The Supreme Court, in HODEL v VIRGINIA SURFACE MINING & RECLAMATION ASSOCIATION,
452 U.S. 264 (1981), would not rule on the constitutionality of SMCRA's steep-slope provisions
and Sec. 522(e) because no "concrete controversy concerning either application of the Act to
particular surface mining operations or its effect on specific parcels of land" was presented. The
court did find that the "mere enactment" of the Act did not effect a taking of private property. In
footnote 40, it added:
"[T]his holding does not preclude appellees or other coal mine operators from attempting to show
that as applied to particular parcels of land, the Act and the Secretary's regulations effect a
taking. Even then, such an alleged taking is not unconstitutional unless just compensation is
unavailable."
HODEL v INDIANA, et al., 452 U.S. 314 (1981), discusses the same issues as HODEL v
VIRGINIA, above, concentrating on the prime farmland provisions.
Legislative intent was considered by the U.S. Court of Appeals for the D.C. Circuit, in NATIONAL
WILDLIFE FEDERATION v HODEL, 839 F.2d 694 (1988), when it ruled that the "continually-created valid existing right" regulation is a "reasonable interpretation of the Act". The court
stated:
"Although [the legislative history] does not answer the specific question before us, it
does suggest that Congress did not intend to infringe on valid property rights or effect
takings through Sec. 522(e)."
II. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The majority of the decisions identified decline to rule on the uncompensated
takings and just compensation issues because of failure to pursue administrative relief
prior to requesting judicial review. In HODEL v VIRGINIA, the Supreme Court held:
"[A]ppellees cannot at this juncture legitimately raise complaints in this Court about
the manner in which the challenged provisions of the Act have been or will be applied
in specific circumstances, or about their effect on particular coal mining operations.
There is no indication in the record that appellees have availed themselves of the
opportunities provided by the Act to obtain administrative relief by requesting either a
variance from the approximate-original-contour requirement of Sec. 515 (d) or a
waiver from the surface mining restrictions in Sec. 522 (e). If appellees were to seek
administrative relief under these procedures, a mutually acceptable solution might well
be reached with regard to individual properties, thereby obviating any need to address
the constitutional questions. The potential for such administrative solutions confirms
the conclusion that the taking issue decided by the District Court simply is not ripe for
judicial resolution."
The HODEL v VIRGINIA decision was cited by the Supreme Court in WILLIAMSON
COUNTY REGIONAL PLANNING COMMISSION v HAMILTON BANK OF JOHNSON CITY,
473 U.S. 172 (1985). The "taking" issues decided in this land development case are
identical to those discussed in the surface mining cases identified. In WILLIAMSON,
the court held that Hamilton Bank, by not seeking variances which might have allowed
the Bank to develop the property after its original development plan was rejected,
"has not yet obtained a final decision regarding the application of the ordinance and
regulations to its property, nor utilized the procedures Tennessee provides for
obtaining just compensation...." As part of this holding, the court found the application
of 42 U.S.C. Sec. 1983 "without merit":
"While there is no requirement that a plaintiff exhaust administrative remedies before
bringing a Sec. 1983 action, the question whether administrative remedies must be
exhausted is conceptually distinct from the question whether an administrative action
must be final before it is judicially reviewable."
In BURLINGTON NORTHERN RAILROAD CO. v U.S., 752 F.2d 627 (1985), the U.S. Court of
Appeals for the Federal Circuit cited HODEL V. VIRGINIA and determined that "Burlington's taking
claim is premature" because "it has not exhausted its administrative remedies by seeking a permit
[to conduct surface coal mining in Custer National forest] from the Secretary, we express no
views on whether Burlington could bring such a suit if it ultimately were decided that the
Secretary has no authority to authorize surface coal mining in Custer National Forest. If th[at]
were to happen, Burlington might have a valid claim for the taking of its property. Indeed, the
Claims Court so recognized when it dismissed the suit without prejudice."
Although the plaintiff in AINSLEY v U.S., 8 Cl. Ct. 394 (1985), provided specific circumstances
in her "takings" allegation, namely that "two Acts passed by Congress...act in concert to prohibit
her from mining coal on her land which is the only beneficial use for her coal property", the U.S.
Claims Court, citing HODEL v VIRGINIA, concluded that the "plaintiff should initially seek an
agency determination...." In the court's view, the "taking" issue could not be decided "without
knowing the reaction of the Secretaries to a specific plan."
On the issue of administrative action versus judicial review, the Fifth District Court of the State
of Illinois, in GINN v CONSOLIDATION COAL CO., 437 N.E.2d 793 (1982), took a view opposite to
those stated above. Citing to subsection 1270(e) of SMCRA, the court determined that "[t]he
exhaustion of administrative remedies is required in situations where a party seeks judicial review
of an administrative action...In the case at bar, plaintiff does not ask for judicial review of any
administrative action nor are we persuaded that he was required to seek relief through an
administrative agency before seeking relief under the common law."
In SMITH v NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET, 712 S.W.2d
951 (1986), the Court of Appeals of Kentucky determined that the execution of a waiver, to
permit surface mining within 300 feet of his home, by a nonoccupant/co-owner of the dwelling is
not sufficient to deprive the occupant/co-owner of "the protections to be afforded under the state
and federal statutes".
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).
Research conducted by: Joyce Zweben Scall
