ELR Citation: ELR 20862
No(s). 84-3406 (3d Cir. Aug 26, 1985)

The court holds that the subsidence provisions of the Pennsylvania Bituminous Mine Subsidence Act on their face do not violate the Taking Clause or the Contract Clause of the Constitution. In a note, the court rules that since the suit is a challenge to a state program enacted to implement the federal Surface Mining Control and Reclamation Act (SMCRA) and not a challenge to federal implementation of SMCRA, the jurisdictional restrictions of SMCRA §526(a)(1) do not apply. The court then upholds the portion of the state act and associated regulations requiring miners to avoid causing subsidence under certain surface structures. The court reviews modern taking caselaw and distinguishes the case before it from the superficially similar 1922 case, Pennsylvania Coal Co. v. Mahon. Unlike in Mahon, the challenged state act has a clear public purpose and is not unnecessarily overbroad to achieve its purpose. Applying a three-part test, the court holds that the law does not work a taking. First, the Act does not authorize physical invasion of property. Second, although Pennsylvania recognizes the right to preserve or deny support as a separate estate in land, the Act does not destroy the entire bundle of property rights held by the miners. Third, the Act does not work a substantial interference with reasonable investment-backed expectations, since miners cannot reasonably expect to harm the public interest protected by the statute with impunity.

The court next upholds a section of the Act requiring miners to repair or pay for subsidence damages, even if the miner holds a waiver of damage from the surface owner. In a note, the court rejects a taking claim against this section for the same reasons it rejected the taking claim against the previously discussed sections. The court further holds that the section does not violate the Contract Clause. Although the section substantially impairs contractual relationships, the impairment is for a legitimate public purpose and, according to legislative findings accepted by the court, is reasonable and appropriate for that purpose. The court also holds that a regulation requiring miners to restore land when they have reduced its value or reasonable uses involves reasonable conditions appropriate to the public purposes of the act.

Finally, the court upholds a portion of the act allowing any surface owner to purchase, for just compensation, enough coal to ensure surface support. The taking this section allows is for a public purpose. The court declines to disagree with the state legislature's presumption that only those owners who needed the coal for support would exercise the right to purchase such coal.

Counsel for Appellants
Henry McC. Ingram, Thomas C. Reed
Rose, Schmidt, Dixon & Hasley
900 Oliver Building, Pittsburgh PA 15222
(412) 434-8600

Counsel for Appellees
Andrew S. Gordon, Sr. Deputy Atty. General
Administrative Office of the Courts
1414 Three Penn Center Plaza, Philadelphia PA 19102
(215) 496-4547

Before Weis and Wisdom,^* JJ.