ELR Citation: ELR 20124
No(s). 84-919 (Fed. Cir. Jan 9, 1985)

The court holds that a Tucker Act suit brought by Wyoming landowners seeking just compensation for an alleged Fifth Amendment taking of their coal mining interests by the strip mining prohibition in Surface Mining Control and Reclamation Act (SMCRA) §510(b)(5) is not barried by the existence of that section's land exchange mechanism for compensation. The court hold that his mechanism, which compensates the loss of coal mining rights with the right to mine on federal land, is an optional remedy for landowners, who retain the right to sue for money compensation in the Claims Court. It is not required that landowners pursue an exchange remedy and be unsuccessful before a taking can occur. The court next holds that the exhaustion doctrine does not require the landowners to pursue an attack on Wyoming's decision to deny them a mining permit when they believe that decision to be correct. Finally, the court observes that the citizen suit provision in SMCRA §520 does not preclude remedies under any other law, including the Tucker Act, which functions as a safety net to assure compliance with just compensation requirements.

Having found no jurisdictional or statutory bar, the court holds that landowners have alleged sufficient facts to withstand a motion to dismiss their taking claim. The court notes that a taking will be found more readily where, as here, interests in specific tracts of land are to be acquired by the government and where Congress has authorized appropriations in anticipation of paying taking claims. Further, the taking issue is normally a fact issue that requires a complete record or trial.

A dissent would dismiss for failure to state a claim because no "property" was taken. The expectations of a strip mining permit does not constitute property under the Fifth Amendment. Setion 510(b)(5) forecloses only strip minin, leaving landowners free to mine by other methods, and no allegation is made that strip mining is the only economically viable use for this land. That an alternative method may be less profitable is not determinative. The dissent further argues that the land exchanges envisioned by the Act were to increase fairness and are not a land requisitions program relevant to the burden of proving a taking.

Counsel for Appellants
George W. Miller
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20006
(202) 331-4575

Counsel for Appellee
Claire L. McGuire
Appellate Sectionn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2855

Nichols, J., before Markey and Bissell, JJ.