ELR Citation: ELR 20253
No(s). 99-5153 (Fed. Cir. Nov 5, 2001)

The court denies a mining company's petition for rehearing in light of the U.S. Supreme Court's decision in Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001), a takings case. The court previously held that the revocation of the company's mining permit did not constitute a taking for which it is entitled to compensation. After Palazzolo, the company argued that in assessing its investment-backed expectations, it was improper for the court to assign any weight to the regulatory regime established by the Surface Mining Control and Reclamation Act. The Palazzolo Court rejected the argument that when government action regulates the use of property, a person who purchases property after the date of the regulation may never challenge the regulation under the Takings Clause. The court first holds that Palazzolo does not suggest that the reasonable expectations of persons in a highly regulated industry are not relevant to determining whether particular regulatory action constitutes a taking. Given the highly regulated nature of the company's industry, the court's conclusion that reasonable investment-backed expectations play an important role in regulatory takings is not inconsistent with Palazzolo and other takings cases. The court next holds that the taking was not categorical. The course of regulatory action, when viewed as a whole, did not deprive the company of all the economic value in its coal leases and, thus, did not constitute a categorical taking of the company's property. The company was able to mine approximately 9% of what it hoped to mine had its mining permit not been suspended and ultimately revoked.

Prior decisions in this litigation are published at 29 ELR 21389 and 31 ELR 20603.]

Counsel for Plaintiff
Raymond D. Battocchi
Gabeler, Battocchi & Griggs
1320 Old Chain Bridge Rd., McLean VA 22101
(703) 790-5244

Counsel for Defendant
Katherine J. Barton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Bryson, J. Before Mayer and Lourie, JJ.