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Holmes Limestone Co. v. Andrus

Citation: 11 ELR 20166
No. No. C80-933A, 17 ERC 1027/(N.D. Ohio, 10/07/1980)

The court rules that § 522(e)(5) of the Surface Mining Control and Reclamation Act (SMCRA), which prevents mining within 100 feet of a cemetery, does not violate the takings clause of the Fifth Amendment. Determining that a family burial site did not constitute a "cemetery" within the meaning of the Ohio strip mining regulations, which contain language identical to § 522(e)(5), an Ohio state court ordered the Department of Natural Resources to issue plaintiff a permit. When plaintiff began strip mining within 100 feet of the burial site, the Department of the Interior's Office of Surface Mining cited plaintiff for violation of the Act. On plaintiff's motions for declaratory judgment and a permanent injunction, the court first finds that it lacks jurisdiction to review the validity of the regulations. Pursuant to § 526(a)(1) of SMCRA, jurisdiction to review regulations exists only in the District Court for the District of Columbia. The court next rules that plaintiff cannot assert that the Act constitutes a taking in violation of the Fifth Amendment since it acquired its interest two years after the enactment of SMCRA. Further, the cemetery provision is a reasonable limitation that permits other uses of the land and thus does not rise to a taking. Finally, the court rules that plaintiff does not have standing to assert Ohio's rights under the Tenth Amendment.

Counsel for Plaintiffs
J. C. Johnston, J. Douglas Drushal
Critchfield, Critchfield, Critchfield & Johnston
P.O. Box 488, Wooster OH 44691
(216) 264-4444

Counsel for Defendants
Richard French, Ass't U.S. Attorney
U.S. Cthse., 201 Superior Ave. NE, Cleveland OH 44114
(216) 522-4392

Lois J. Schiffer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704