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Virginia Surface Mining & Reclamation Ass'n v. Andrus

Citation: 9 ELR 20235
No. No. 78-0244-B, 12 ERC 1795/(W.D. Va., 02/14/1979) Preliminary injunction issued

The court issues a temporary injunction against enforcement of §§ 502-522 of the Surface Mining Control and Reclamation Act of 1977 pending a ruling on the merits of plaintiffs' challenge to the constitutionality of these statutory provisions. The court finds that the Act's strict controls on strip-mining operations on slopes greater than 20 degrees would make surface mining of 95 percent of the coal reserves in Virginia commercially impracticable, and notes that numerous small coal companies have already gone out of business partly because of these restrictions. Plaintiffs have shown that they will suffer irreparable injury in the absence of injunctive relief, while defendants have not demonstrated that a temporary injunction will adversely affect other parties or the public interest. The court holds that this tilting of the balance of hardships in plaintiffs' favor makes a determination of their likelihood of success on the merits unnecessary, but nonetheless expresses the view that plaintiffs are likely to prevail on two of their constitutional claims. Distinguishing the recent Supreme Court decision in Penn Central Transportation Co. v. New York City, 8 ELR 20528, the court concludes that plaintiffs have made a strong showing that the Act's reclamation requirements may violate the fifth amendment prohibition against the taking of property without just compensation. The court also finds that the statutory provision authorizing federal inspectors to issue orders to cease mining for 30 days without prior notice or hearing constitutes a denial of due process.

Counsel for Plaintiffs
John L. Kilcullen
Kilcullen, Smith & Heenan
Suite 600, 1800 M St. NW, Washington DC 20036
(202) 296-5700

Kenneth P. Ashbury, City Attorney
129 Main St., Wise VA 24293
(703) 328-5286

Counsel for Defendants
Morgan E. Scott, Ass't U.S. Attorney
P.O. Box 1709, Roanoke VA 24008
(703) 982-6250

Robert T. Copeland
Bradshaw, Morris & Copeland
206 E. Main St., Abingdon VA 24210
(703) 628-8121