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Virginia Surface Mining & Reclamation Ass'n v. Andrus

Citation: 10 ELR 20128
No. No. 78-0244-B, 483 F. Supp. 425/14 ERC 1055, 1145/(W.D. Va., 01/03/1980) Permanent injunction issued

The court declares that portions of the Surface Mining Control and Reclamation Act (SMCRA), ELR STAT. & REG. 42401, including provisions restricting steep-slope coal mining, violate the Fifth and Tenth Amendments and permanently enjoins their enforcement. The court first declines to rule on the constitutionality of the abandoned mine reclamation provisons under title IV of the Act because the issues are not fully articulated. The court then holds that although the Act represents a rationally based exercise of the authority of Congress to regulate interstate commerce, it violates the Tenth Amendment. Rather than being aimed at purely private activity, the Act displaces the states as decision-makers in areas of their traditional services, particularly land use regulation. Specifically, the steep-slope provisions, which require surface mined land to be restored to its approximate original contour, work an economic hardship and prevent both mining and subsequent valuable uses of the mined land. Balancing the federal and state interests, the court permanently enjoins enforcement of the steep-slope provisions of the SMCRA. Further, although the Act does not violate equal protection and substantive due process guarantees, the court declares that the steep-slope provisions in §§ 515(d) and 515(e) and the unsuitability provisions in § 522 have a prohibitive effect on the mining of Virginia coal while failing to accomplish an environmental purpose and therefore violate the Fifth Amendment by accomplishing a taking without just compensation. Finally, the court finds that the enforcement provisions authorizing cessation orders, notices of violation, and civil penalties deny procedural due process under the Fifth Amendment. The court notes that its ruling is in conflict with a decision of the federal district court in the District of Columbia, but points out that this decision predated implementation of the Act. Putting particular emphasis on actual evidence of enforcement actions by federal officials, the court enjoins the issuance of cessation orders until the subjective criteria used by federal inspectors are corrected.The notice of violation and civil penalty provisions are also enjoined pending the establishment of adequate due process guarantees.

In a subsequent decision on January 21, the court denies defendants' motion for a stay pending appeal and also clarifies its order of January 3. The court amends its earlier order to provide that the injunction against the steep-slope provisions shall not be construed to allow downslope spoil placement in an uncontrolled manner. In addition, the injunction against cessation orders and civil penalties refers only to the Act's provisions relating to summary issuance of cessation orders and civil penalties.

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

Robert T. Winston
P.O. Box 408, Norton VA 24273
(703) 679-3110

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

Andrew F. Walch
Land and Natural Resources Division
Department of Jutice, Washington DC 20530
(202) 633-4112

Counsel for Intervenor-Plaintiff Commonwealth of Virginia
Roger L. Chaffe, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071