ELR Citation: ELR 20600
No(s). 94-5081 (Fed. Cir. Feb 15, 1995)

The court holds that the Office of Surface Mining Reclamation and Enforcement's (OSM's) issuance of a Surface Mining Control and Reclamation Act (SMCRA) §521 cessation order to a coal mining company was not an uncompensated taking of private property in violation of the Fifth Amendment to the U.S. Constitution. The order required the company to mine coal deposits pursuant to a subsidence control plan that provided for a greater angle of draw under protected structures and further protection of single-family dwellings. The court rejects the company's claim that OSM's requirement that the company revise its coal mining operations to maintain a greater than 15-degree angle of draw and to leave in place coal deposits under occupied structures that the company claims it had the right to subside without limitation and liability constituted a taking. The court holds that the company never acquired under its deed of title the right to mine in such a way as to endanger the public health and safety. That the company had a state permit to mine is not controlling. The U.S. Department of the Interior has the right to issue cessation orders in cases of imminent danger to the health or safety of the public. Thus, at the time the company acquired its mining rights, it knew or should have known that any state authorization it may have received was subordinate to the national standards that SMCRA established and OSM enforces. Moreover, it is incontestable that OSM's actions were legitimate exercises under SMCRA to prevent ham to the public health and safety. In an administrative proceeding, the Interior Board of Land Appeals (IBLA) determined as much, specifically finding that the company's operations were posing a threat, not only to particular residents, but to the public in general. The company chose not to appeal the IBLA's determination and not to challenge the validity of OSM's enforcement actions in district court, and neither the U.S. Court of Federal Claims nor this court may entertain a collateral challenge to the validity of OSM's actions.

The court holds that application of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), does not mandate a holding in the company's favor. Unlike Mahon, this case does not involve merely a balancing of the private interests of surface owners against the private economic interest of the coal company; it involves the much broader interests of public health and safety. That certain individuals or their predecessors may have unwisely deeded to the company's predecessors their rights to surface support cannot estop OSM from exercising its authority to abate an imminent danger to the public health or safety. And although OSM's actions may have benefitted individual residents, they were taken to ensure that the company's use of its property did not injure the community at large. Justice and fairness do not require that the community at large bear the "burden" of the company's inability to mine in a manner that is safe to the public. Because the company failed to establish that OSM's actions effected a taking of private property for Fifth Amendment purposes, the court affirms the Court of Federal Claims' grant of summary judgment for the government.

[The Court of Federal Claims' decision is published at 24 ELR 21064.]

Counsel for Plaintiffs
Jerri F. Heiskell
McDonald & Rodecker
1200 Bank One Ctr.
P.O. Box 2151, Charleston WV 25328
(304) 344-5046

Counsel for Defendant
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Mayer and Bennett, J.