Holmes Limestone Co. v. Andrus

No. C 80-933 A (N.D. Ohio October 7, 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

[11 ELR 20166]

ALDRICH, J.:

Judgment

This action came on for trial (hearing) before the Court, Honorable Ann Aldrich, United States District Judge, presiding, and the issues having been duly tried (heard) and a decision having been duly rendered, in favor of the defendants.

IT IS ORDERED AND ADJUDGED that the complaint is hereby dismissed, with prejudice at plaintiffs' costs.

IT IS FURTHER ORDERED that the preliminary injunction is hereby dissolved.

IT IS FURTHER ORDERED that the court's memorandum opinion and order filed on October 7, 1980 is hereby adopted as findings of fact and conclusions of law, in accordance with Rule 52, Federal Rules of Civil Procedure.

Memorandum Opinion and Order

Plaintiff Holmes Limestone Company ("Holmes") seeks a declaratory judgment and a permanent injunction against defendant Secretary of the United States Department of the Interior ("Secretary") to prevent the enforcement against Holmes, with respect to two pieces of property in Holmes County, Ohio, of § 522(e)(5) of the Surface Mining Act of 1977, 30 U.S.C. § 1272(e)(5). Section 522(e)(5) provides, in pertinent part:

After August 3, 1977, and subject to valid existing rights, no surface coal mining oeprations except those which exist on August 3, 1977, shall be permitted —

(5) within three hundred feet from any occupied dwelling, unless waived by the owner thereof, nor within three hundred feet of any public building, school, church, community, or institutional building, public park, or within one hundred feet of a cemetery.

The Secretary has defined a "cemetery" as "any area of land where human bodies are interred." 30 C.F.R. 761.5.

The case was consolidated and advanced pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, and heard together with Holmes' motion for a preliminary injunction. A preliminary injunction was issued on June 30, 1980, pending this final determination.

This Court now finds that it lacks jurisdiction to review the definition of the word "cemetery" as defined by the Secretary; that § 1272(e)(5) and 30 C.F.R. 761.5 do not constitute a taking of the plaintiff's property in contravention of the Fifth Amendment; and that plaintiff lacks standing to assert any Tenth Amendment right the State of Ohio may have with respect to the regulation of its land by § 1272(e)(5).

The Court therefore orders that the preliminary injunction be dissolved and that judgment be entered for the defendant in accordance with the following Memorandum.

Facts

The facts in this case are not in dispute.

In 1977, Congress enacted the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., with an express two-fold purpose — (1) the optimal retrieval of a valuable source of energy, consistent with (2) the protection of society and the environment. The Act established a two-tier regulatory program. The first tier is an interim program; the second tier is a permanent program. The interim program remains in effect until a state receives an approved program, or failing federal approval, until the federal government implements a federal program for that state. Sections 503, 504, 30 U.S.C. §§ 1253, 1254. During the interim program, the Secretary and the states share joint responsibility for enforcement of the regulatory program. Ohio's program is currently undergoing review by the Department of Interior's Office of Surface Mining Reclamation and Enforcement (OSM). Hence, Ohio is operating under the interim program, issuing permits under its existing laws, pursuant to § 502(a) of the Act, 30 U.S.C. § 1252(a).

Ohio Administrative Code, § 1501:13-19-03(c) is identical to § 522(e)(5) of the Surface Mining Act. However, Ohio has no statutory definition of the word "cemetery."

Plaintiff Holmes Limestone employs about eighty people and has been engaged in strip mining in Holmes County, Ohio, and surrounding counties, for more than thirty years. Holmes County is characterized by a terrain of rolling hills, farmed in large part by the Amish. The Amish live simply, eschewing most modern conveniences, and are particularly careful stewards of their lands.

Holmes has in the past strip mined on a number of Amish farms, and has earned an impeccable reputation for the care which it has taken in mining within a few feet of barns, orchards, duck ponds, and cemeteries.

Holmes now holds two leases — one to strip mine the coal on Noah Beachy's farm, and the other to strip mine the coal on Melvin Raber's farm. Both Beachy and Raber are Amish farmers who owned their land in fee prior to the passing of the Surface Mining Act. Both leases to Holmes were executed after the passage of the Surface Mining Act. In September of 1979, the Ohio Department of Natural Resources granted Holmes a permit to strip mine coal on Noah Beachy's property on the condition that it not strip mine closer than one hundred feet from the private family burial site. The burial site is a fenced enclosure atop a rolling hill, not open or accessible to the general public, which includes the graves of some thirty of Noah Beachy's ancestors and relatives. Holmes began strip mining on both farms, although it has not, as yet, reached the terrain near the burial site on the Raber property.

In December of 1979, Holmes applied to the Ohio Department of Natural Resources for an amendment to its permit, to allow it to strip mine coal in the area between twenty-five feet and one hundred feet from the Beachy family burial site.

On January 4, 1980, the Ohio Department of Natural Resources denied the application on the ground that the mining would occur within one hundred feet of a "cemetery", prohibited by Ohio Strip Mining Regulation 1501:13-19-03(c), which is identical to 30 U.S.C. § 1272(e)(5). Holmes appealed to the Ohio Reclamation Board of Review which held a hearing, and, on March [11 ELR 20167] 27, 1980, the Board reversed the Ohio Department of Natural Resources on the ground that the private family burial site on the Beachy farm was not a "cemetery" within the meaning of Ohio Strip Mining Regulation 1501:13-19-03(c). The Department of Natural Resources was directed to issue the amended permit. Before this action could be taken, the Chief of that Division was advised by employees of the defendant Secretary of the United States Department of Interior not to issue the permit, threatening a cut-off to Ohio of federal funds if the permit were issued, as well as action against plaintiff Holmes Limestone Company if mining activities were conducted within one hundred feet of the Beachy burial site.

On May 19, 1980, the Chief of the Division's appeal requesting a stay of the Board's decision was denied,and he was ordered by the Court of Common Pleas of Franklin County to issue the permit. Plaintiff Holmes began strip mining coal in the area between twenty-five and one hundred feet from the Beachy burial site. On June 6, 1980, plaintiff filed its complaint in this case, seeking a declaratory judgment and a permanent injunction against the defendant Secretary of the United States Department of the Interior. On June 11, 1980, Holmes was cited by the Interior Department's Office of Surface Mining for violation of § 522(e)(5) of the Surface Mining Act, 30 U.S.C. § 1272(e)(5).Holmes then ceased all mining operations in the disputed area.

Undisputed testimony established that the area in question includes about .9 acres, and should produce approximately 6,000 to 8,000 tons of coal, for which Mr. Beachy would receive approximately $12,000 in royalties. It was further established that if the coal were not mined in concert with the strip mining currently in progress, it would be economically and physically infeasible to come back and retrieve it.The coal would be forever lost. Photographs demonstrated the quality of Holmes care in reclamation on other similar property — reclamation that proceeds as the mining operation progresses from one cut to the next. The evidence also demonstrated that after reclamation it is impossible to tell where the strip mining, closer than one hundred feet from a family burial site, took place. Testimony of a number of Holmes' officers and employees was persuasive in support of Holmes' reputation for care and concern about all aspects of its operation.

Mr. Beachy's affidavit, which strongly asserted his desire that Holmes be allowed to continue the operation around the burial site, was given considerable weight by the Court, in view of defendant's counsel's representation that he had met with Mr. Beachy, that the affidavit faithfully represented Mr. Beachy's point of view, and that defendant's counsel felt no need to take a deposition or otherwise cross examine the Amish farmer whose religious beliefs prohibited him from appearing in open court.

Jurisdiction

The Secretary argues that this Court lacks jurisdiction for two reasons: first, that Holmes has failed to exhaust its administrative remedies; and second, that pursuant to § 526(a)(1), 30 U.S.C. § 1276(a)(1) of the Act, Holmes' challenge to the validity of the Secretary's regulation defining the word "cemetery" could have been brought only in the District Court for the District of Columbia, and then only within sixty days from the date of the promulgation of the regulation.

Holmes properly filed its complaint in this Court on June 6, 1980. Five days later, the Office of Surface Mining issued a notice of violation against Holmes for mining within one hundred feet of a cemetery on the Noah Beachy property. It is the Secretary's argument that once the notice of violation was issued, Holmes, through § 525, 30 U.S.C. § 1275 of the Act, came under the jurisdiction of the Department of the Interior. Section 525 provides, generally, for administrative review by the Secretary of orders and notices issued to permittees.

It is clear, however, that at the time Holmes filed its complaint, there had been no agency action requiring Holmes to seek relief through administrative channels; hence, there were no administrative remedies to exhaust. The subsequent notice of violation could not serve to divest this Court of its jurisdiction.

However, this Court does lack jurisdiction to review Holmes' challenge to the validity of the regulations promulgated by the Secretary. This Court must conclude that the only proper forum for such review is the District Court for the District of Columbia. Section 526(a)(1), 30 U.S.C. § 1276(a)(1), states in part:

. . . Any action by the Secretary promulgating national rules or regulations . . . shall be subject to judicial review in the District of Columbia Circuit. [sic] Any other action constituting rulemaking by the Secretary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is located. Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious or otherwise inconsistent with law. A petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action or after such date if the petition is based solely on grounds arising after the sixtieth day. . . .

There can be no doubt but that the definition of a "cemetery" is a national rule, intended for national application. As such, its validity is subject to review only in the District Court for the District of Columbia. It matters not that this Court might doubt the wisdom of the regulation, or the breadth of the definition;¹ nor does it matter that this Court might question the adequacy of the administrative process that led to its promulgation. This Court simply lacks jurisdiction to consider those questions. In Re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1307 (D.D.C. 1978).

Statutory schemes for judicial review similar to that found in § 526(a)(1), 30 U.S.C. § 1276(a)(1) of the Surface Mining Act are not uncommon. See, e.g., 42 U.S.C. § 7607(b)(1) (Clean Air Act). The Congressional intent is to provide for judicial review of administrative regulations of national application in one specific court, and within a relatively short period of time (30 to 60 days) after their promulgation. Thereafter, the validity of the application of the regulation may be left to the geographically appropriate United States District Courts. So long as the opportunity for testing the validity of the regulation has been provided, persons against whom the regulation is later applied may be precluded from raising the validity of the regulation as a defense, without violation of due process. Courts have consistently reached this conclusion in both criminal administrative enforcement cases, Yakus v. United States, 321 U.S. 414, 443-44 (1944); United States v. Adamo Wrecking Co., 545 F.2d 1, 5-6 [7 ELR 20001] (6th Cir. 1976), rev'd on other grounds, 434 U.S. 273 [8 ELR 20171] (1978); and in civil administrative enforcement cases, Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 [2 ELR 20683] (3d Cir. 1972), cert. denied, 409 U.S. 1125 (1973); Union Electric Co. v. EPA, 515 F.2d 205, 220 [6 ELR 20259] (8th Cir. 1975), aff'd, 427 U.S. 246 [6 ELR 20570] (1976).

A fortiori must this principle apply in a case such as this one, where Holmes seeks a declaratory judgment against an anticipated civil administrative enforcement action. It must be concluded that § 526(a)(1) requires Holmes' challenge to the validity of the Secretary's regulation, i.e., the definition of "cemetery" to have been brought in the District Court for the District of Columbia, and that this requirement does not violate constitutional due process.

Fifth and Tenth Amendment Issues

While this Court has no jurisdiction to review the validity of the national regulation, it plainly has jurisdiction to review constitutional challenges to the application of the Act, and the regulations promulgated thereunder Section 526(a)(1), 30 U.S.C. § 1276(a)(1).

Holmes challenges the constitutionality of the application of the Act to itself, arguing, in reliance upon Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), that enforcement of § 522(e)(5) constitutes a taking of its property without just compensation, in violation of the Fifth Amendment.

[11 ELR 20168]

Since Holmes acquired its interest in the property in question two years after the enactment of the Surface Mining Act, with full knowledge of the statutory prohibitions, it cannot now assert that the Act constitutes a taking of its property. Even assuming that Holmes could raise the constitutional claims of a third party (on a Jackson v. Barrows, 346 U.S. 249 (1953) theory), it is clear that no taking is involved.

As pointed out in Penn Central Transportation Co. v. City of New York, [438] U.S. [104], 98 S. Ct. 2646 [8 ELR 20528] (1978):

. . . In deciding whether a particular governmental action has effected a taking, the Court focuses rather both on the nature and extent of the interference with rights in a parcel as a whole. . . .

Id. at 2663.

In the instant case, the Surface Mining Act merely regulates the use of the land. Limiting the proximity of surface mining operations to a cemetery protects the cemetery from the hazardous effects of surface mining and is plainly within the purpose and intent of the Act. The land in question can still be used for all the purposes for which it was used prior to the passage of the Act; the only excluded use is the surface mining of coal. Such a limitation on land use does not rise to a "taking" of constitutional magnitude, and the remaining uses distinguish this case from Pennsylvania Coal Co., supra, where the statute in question served to deprive the owner of the total use of its property interest.

Finally, Holmes challenges the constitutionality of the Act as violating the rights of the State of Ohio under the Tenth Amendment. Ohio has not challenged the Act in this Court, and it is quite clear that Holmes has no standing to assert the rights of the State of Ohio under the Tenth Amendment. Tennessee Electrical Power Co. v. TVA, 306 U.S. 118 (1939).

It is indeed regrettable that, in this case, the law falls so harshly on Holmes, a company which, without doubt, successfully strip mines with meticulous attention to environmental concerns. However, this Court must, reluctantly, dissolve its preliminary injunction and enter judgment for the defendant.

IT IS SO ORDERED.

1. See Marietta Coal Co. v. Office of Surface Mining Reclamation and Enforcement, Docket No. IN-12-R (May 21, 1980), appeal pending to Interior Board of Surface Mining and Reclamation Appeals, IBSMA No. 80-42 (private burial plot abandoned since the 19th century not considered a "cemetery" within the meaning of § 522(e)(5), 30 U.S.C. § 1272(e)(5) of the Act).