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Rith Energy, Inc. v. United States

Citation: 29 ELR 21389
No. No. 92-480L, 44 Fed. Cl. 108/48 ERC 1951/(Fed. Cl., 06/25/1999)

The court holds that the Office of Surface Mining Reclamation and Enforcement's (OSM's) denial of a surface mining permit to a company was not a taking. The company's mining plan would invade the rock strata overlying an aquifer that supplies a local community with drinking water. The court first holds that the denial of the mining permit parallels a result that could have been achieved under the state's nuisance law. The state's water quality act prohibits permits for the conduct of a mining operation that would cause a condition of pollution affecting the state's waters. Because of the high probability of acid mine drainage into the local aquifer, the OSM's permit denial was an exercise of regulatory authority indistinguishable in purpose and result from that to which the company was always subject under the state's nuisance law. Thus, the court holds that no compensable taking occurred.

Counsel for Plaintiff
Raymond D. Battocchi
Gabeler, Battocchi & Griggs
1320 Old Chain Bridge Rd., Ste. 200, McLean VA 22101
(703) 790-5244

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