State v. Blue Creek Coal, Inc.

No. 44327 (Ohio Ct. C.P. June 28, 1974)

The Ohio Strip Mine Act of 1972 is held a valid exercise of the state's constitutionally authorized police power to regulate the methods of mining coal and other minerals. Even though the statute applies only to the stripmining of coal, it rests on a reasonable classification scheme since 77 percent of all stripmining in Ohio is for coal, and such mining presents more serious ecological risks than does stripmining for other minerals. The state's denial of defendant's application for a stripmining permit did not constitute a taking of private property without due process since the defendant has no vested right to continue to use methods of stripmining and reclamation after a valid law has been enacted making them illegal. The court also upholds the statute's bonding requirements, which are conditioned on the estimated cost of reclamation should the applicant default and on the applicant's past performance in meeting his obligations under previous permits. The amount of the bond required in this case is held to constitute neither an abuse of discretion nor a taking. The law does not unconstitutionally impair the defendant's right to contract, and the permit denial was issued within the required period of sixty days after receipt of the application. Defendant is enjoined from further stripmining and from selling coal already stripmined from the location in question until a valid state permit has been obtained.

Counsel for Plaintiff
Jay McKirahan Asst. Attorney General
Building B — Fountain Square
Columbus, Ohio 43224

Counsel for Defendant
John L. Woodward
Wentz Building
Public Square
Dover, Ohio 44622

[4 ELR 20760]

Brown, J.

This cause came on to be heard on a Complaint filed in this Court by the State of Ohio, Division of Reclamation in which a temporary restraining order, preliminary injunction and injunction are requested. Upon the order of the Court the hearing of the application and the trial were consolidated.

The plaintiff is charged by statute with the enforcement of laws relating to coal strip mining in Ohio. The defendant has been engaged in the mining of coal by strip mine methods in the state of Ohio for many years. The parties are in accord that coal strip mining in the state of Ohio is covered by Revised Code Title XV (15) "Conservation of Natural Resources", and by Ohio Revised Code Chap. 1513, "Reclamation of Strip Mine Land," and there is no dispute that the legislature has the necessary authority to act in this area under The Ohio Constitution, Article II, Section 36, which provides that, "Laws may be passed . . . . to provide for the regulation of methods of mining, weighing, measuring and marketing of coal, oil, gas and other minerals"

The defendant, on or about September 6, 1973, mailed to the Division of Reclamation an application for a strip mine license covering fourteen acres of land in the S.E. one-fourth of Section 10, Township 9, Range 3, Franklin Township, Tuscarawas County, Ohio. This application was received by the Division of Reclamation on either September 10 or 11, 1974. This license application was denied by Chief's order No. 563, dated November 7, 1973 and (provided defendant did not qualify for a license by reason of the Chief's failure to have acted upon the application within sixty days) the defendant has since December 21, 1973, been engaged in the strip mining of coal, as defined in Ohio Revised Code Section 1513.01(A), in the state of Ohio without a license and has been loading and trucking coal away from the above described location.

The issues raised are as follows:

1) Is the Ohio Strip Mine Act of 1972 in violation of the Constitution of the state of Ohio and the constitution of the United States because it regulates only coal mining? Are defendants being denied the equal protection of the laws? It defendant's property being taken without due process?

2) Shall an application for a strip mine license be conclusively presumed to have been approved under Sections 1513.01(O) and 1513.07(B) and (E) of the Revised Code, where the application was mailed on or about September 6, 1973, received by Division of Reclamation on September 10 or 11, 1973, with the Chief's order of denial being dated November 7, 1973, and with said order being received by the defendant on November 9, 1973, and with the returned license fee check being received by defendant on November 12, 1973?

3) Shall amendment be granted to the plaintiff after submission of the case to the Court to permit the plaintiff relief based upon Section 1513.15(A) of the Revised Code, rather than holding him to the requirements of Civil Rule 65 of proving immediate and irreparable damage?

The plaintiff has filed a motion to amend the complaint to conform to the evidence on the basis that there was evidence adduced at the trial tending to prove that the state of Ohio was entitled to relief pursuant to Section 1513.15(A) of the Revised Code. He contends also that the defendant had raised no specific objection at the trial to the applicability of the statute and had thereby consented to the statute's applicability.

The Court disagrees with plaintiff's contention that, "Defendant thereafter raised no specific objection at trial to the applicability of the statute as a source of injunctive relief. Defendant thereby tried the issue of the statute's applicability by implied consent". However, Rule 15(B) provides in part "If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the Court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits".

Rule 15(C) provides, "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. . . . .".

The amendment relates to the basic operative facts.

This Rule gives the court wide discretion in allowing the amendment of pleadings to conform to the evidence: Esquire Restaurant, Inc. v. Commonwealth Ins. Co. of N.Y. (CA7), 393 F.2d 111.

"We believe the philosophy of the Supreme Court to be that a litigant should win or lose on the merits of his case if at all possible. . . ." McDonald v. Haught, 10 Ohio St. 2d 43.

In Gibbs v. Lemley, 33 Ohio App. 2d 220; 293 N.E.2d 324 the Court stated, [4 ELR 20761] "We desire to cite following authorities to support our position. The purpose of Civ. R.15, applicable to retrospective amendment of pleadings and of prayer for relief, is to avoid the tyranny of formalism. Rosden v. Leuthold (D.C. Cir.), 274 F.2d 747.

"This rule providing that the amendment of a pleading arising out of conduct, transaction or occurrence set forth in the original pleading shall back to date of original pleading was designed so that cases would be determined on their merits, not technicalities. Taormina Corp v. Escobedo (C.C.A. 5, 1958), 254 F.2d 171, cert denied, 358 U.S. 827, 3 L. Ed. 2d 66, 79 S. Ct. 44.

"These rules were intended to facilitate the application of substantive law and not to fight it, and they contemplate free amending privileges. Brown v. Dunbar & Sullivan Dredging Co. (C.C.A. 2, 1951), 189 F.2d 871."

Plaintiff's Motion to amend the complaint to conform to the evidence must be and is granted.

It is the ruling of the Court that the following language be added to the prayer for relief:

"Plaintiff further prays that the State of Ohio, having met the requirements for injunctive relief set out in Sec. 1513.15(A) of the Revised Code, be granted an injunction restraining the Defendant from conducting strip mining operations in Tuscarawas County, Ohio without a license issued by the Division of Reclamation."

The defendant charges that "Chapter 1513 Strip Mining and Reclamation of Mined Land" is violative of the constitutions of the United States and the State of Ohio in that it provides for an unreasonably discriminatory exercise of the police power to protect the public health, safety, welfare or morals. Defendant recognizes the right of the legislature to exercise its police power to protect the public health, safety and welfare. Defendant's primary contention in support of the charge of unconstitutionality is that this act regulates only the strip mining of coal and does not regulate the strip mining of clay, shale, sand, gravel etc. and thus is unreasonably discriminatory and does not provide equal protection.

The defendant has stated that the United States Supreme Court has held that where the constitutionality of a statute is questioned because of the classification it makes, that the test in the type of case court now has before it is whether there is a reasonable distinction in fact between those who are and those who are not classified. He states that a formula commonly accepted in making this determination is: Does the classification include all persons and only those persons who are similarly situated with respect to the purpose of the law and if it does, the classification is valid.

The Supreme Court itself has formulated the test as follows: But this classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. (From defendant's Brief)

Substantial differences exist between strip coal mining and other types of surface mining:

1) In 1965 coal extractions in Ohio amounted to 77 per cent of all acreage subject to surface mining¹ (298,205 acres as compared to 73,721 acres²

2) Fires in coal seams and strip coal mine refuse piles are much more common than are fires in other types of surface mining operations.

3) Coal is normally mined and stored at surface level stock yards in substantial quantities while clay, for example, is uncovered but is left in the ground until a buyer is found.

4) The effluent from strip coal mines is highly acidic and far more damaging to surrounding lands and streams than is that emanating from or resulting from other mineral surface mining.

These and other differences were of sufficient substance to justify the legislature's acting first in that area, i.e., the strip mining of coal, where the need was greatest and the danger of damage loomed largest. (It should be noted that the legislature is currently considering bills which are expected to result in the enactment of laws providing comparable legislation for other surface mining.)

This Court holds that Chapter 1513 meets the test of including all and only those persons who are similarly situated with respect to the law and holds further that the classification is reasonable and rests upon real differences relating to the objectives of the legislation.

This court finds that the need for regulation and control of strip coal mining operations was of extreme importance and required prompt action to avert further serious ecological damage.

The Ohio legislature, by admissions of the parties, and by express constitutional authorization had in the year 1972 the right to enact legislation regulating the ". . . methods of mining, weighing, measuring and marketing coal, oil, gas and other minerals." Constitution of Ohio, Article II, Section 36.

There has been no showing that for the legislature's action to be constitutional in the enactment of regulations covering the surface mining of one of the minerals listed in ArticleII, Section 36 of the Constitution of Ohio or any mineral recovered by strip mine methods, that regulations covering the surface mining of all such minerals would have to be made effective simulataneously. So to hold would be impracticable and unreasonable.

In McGowan v. Maryland, 366 U.S. 420, 425-426 (1961) it was held,

"State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.A statutory discrimination will not be set aside if any state of facts reasonable may be conceived to justify it."

State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142; 128 NE 2d 59 (1955), in its syllabus states:

"2. A regularly enacted statute is presumed to be constitutional.

"3. Enactment of General Assembly are held constitutional unless clearly unconstitutional beyond reasonable doubt.

"4. Any doubt as to constitutionality of statute will be resolved in favor of its validity.

"5. Every reasonable presumption will be made in favor of validity of statute. . . .

"10.The Supreme Court must presume in favor of validity of law passed by legislative body until its violation of constitution is proved beyond reasonable doubt."

For the foregoing reasons, we are of the opinion that the legislative act Chapter 1513: Strip mining and Reclamation of Mined Land of the Revised Code of the State of Ohio is a constitutionally valid act and so hold.

Issue has been raised as to whether or not plaintiff under Section 1513.15 is required to prove that immediate and irreparable injury, loss or damage will result if this court refuses to grant the relief sought.

Section 1513.15(A) Ohio Revised Code reads as follows:

"In addition to any other remedy under Chapter 1513. of the Revised Code, the attorney general or any other person adversely affected or about to be adversely affected by an operation may apply to the court of common pleas of the county wherein the operation is situated to enforce compliance with, or to restrain violation of, any requirement of Chapter 1513. of the Revised Code, a rule adopted thereunder, or an order of the chief. The remedy prescribed in this division is cumulative and concurrent with any other remedy, and the existence or exercise of one remedy does not prevent the exercise of any other remedy.

In Stephan v. Daniels, 27 Ohio St. 527, 536 (1875), the court said [4 ELR 20762] in reference to an existing statute, "It gives a remedy by injunction, on the application of a single person taxed, when none existed before. In his application he need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law. . . ."

In Steese v. Oviatt, 24 Ohio St. 253 (1873), the court said, "The act of May 1, 1856 (53 O.L. 179) (S.&C. 1151) (3 Sayler 2819; Sec. 5848 Rev. Stat.), gives to the courts jurisdiction to restrain the collection of taxes illegally assessed; but the jurisdiction thus conferred is an equitable jurisdiction and it to be exercised upon equitable principles. Proceeding under the statute, the party complaining is not required to show a case of threatened irreparable injury, or the absence of a remedy by ordinary legal proceedings; . . . ."

In 29 O.C.A. 209, 218, (CA Hamilton County, (1918), the court said, "While this action is equitable in its form it is purely statutory in its nature and gives a remedy to a taxpayer in addition to all other remedies formally provided. It is not necessary therefore to establish all of the elements of a case in equity. Tone v. Columbus, 39 O.S., 281, at 301, 302. . . ."

Defendant's claim that the act in question has resulted in a "taking of private property" without due process is, in effect, disposed of unfavorably to defendant by this court's holding that the law is constitutionally valid and that in its enactment the legislature exercised properly its police powers.

The defendant can still carry on strip mining on the property but he has no vested right to continue to use his land in a certain way or to continue to use methods of strip mining and reclamation after a law has been passed making its use in that manner unlawful or its mining in that manner unlawful.

However, in Ghaster Properties, Inc., v. Preston, 176 Ohio St. 425, 200 NE 2d 328 in Syllabus 3, it is stated, "Where a valid statute has prohibited a particular use of property or has provided that such use shall constitute a nuisance, the owner no longer has a lawful or legitimate right to so use his land."

In State v. Russell, 162 Ohio St. 281, 123 NE 2d 261 in Syllabus 2, it is stated, "It is not within the judicial function for courts to pass upon the wisdom of a zoning ordinance; they may only determine whether such an ordinance is reasonably comprehensive in its application and has a reasonable relation to preservation of the public health, safety and morals, and where such an ordinance is so qualified, its enforcement does not constitute a taking of property without compensation or the taking of property without due process of law, within the meaning of constitutional requirements. Constitution Article 1 Sections 1, 16, 19; U.S.C.A. Constitution Amendment 14, Section 1.

The statute, Chapter 15, herein questioned meets the above test, i.e., its regulations are not arbitrary and apply to all those who would or do engage in the strip mining of coal and it is comprehensive in its coverage.

As to the question of the unconstitutionality of that section of the act setting forth the bond requirements, if the question raised were to be answered in the affirmative, that would not nullify the act in its entirety but only as to that particular section of the act.

Thus, in the case at hand, the defense that the bond requirements constitute the taking of property without compensation would not have to be passed upon by this Court because the defendant has met all of the requirements as to bonding. This was not one of the grounds upon which the application was denied. Were this section of the act voided as being in violation of the State and United States Constitutions, the entire act would not be nullified but only that provision. Defendant's application for license would still not qualify for approval and issuance of a license.

However, the bonding requirements are conditioned upon what it would cost someone other than the licensee to fullfill his obligations in the event of his failure to conform to and to meet the requirements of the act to provide protection against ecological damage. The amount of the bonds are related also to the applicants past performance in meeting his obligations under previous strip mining projects carried on by an individual or a company. The amount of the bonds required in the case of this application are commensurate with the responsibilities and obligations placed upon a licensee in consideration of his being granted such license. There is no abuse of discretion in the amount of the bond required and no taking of property without due process.

The defendant states that the constitutional admonition against impairment of contracts has no application where there is a proper exercise of police power. Crabbe v. Massilon Savings and Loan Company, 110 Ohio St. 320, 143 NE 894 (1924). Since this court has found that the act in question is based upon a proper exercise of police power, there is no unconstitutional impairment of contract.

Furthermore, private parties lack the ability to curtail governmental authority by the easy device of contracting with one another.

The prevailing law has been stated by the United States Supreme Court:

It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby the affected . . . In other words, that parties by entering into contracts may not estop the legislature from enacting laws intended for the public good. Manigult v. Springs, 199 U.S. 473, 480 (1905); See also, Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934).

Under the facts present, there has been no unconstitutional impairment of contract.

Section 1513.07(B) of the Revised Code of Ohio states:

"The chief shall issue an order granting or denying a license within the prescribed period after receipt of a complete application and the required fee and bond, cash, or certificates of deposit. If he approves the application, the order granting the license shall authorize the licensee to engage as the operator of a strip mining operation upon the land described in the application for one year from the date of issuance. If the chief denies the license, he shall state the reasons for denial in the order denying the license."

Section 1513.07(E) of the Revised Code of Ohio states:

"If the chief fails to act within the time prescribed in this section, it shall be conclusively presumed that he has approved the application for a license or amendment thereto."

And finally, Section 1513.01(O) of the Revised Code of Ohio states:

"'The precribed period' means, in the case of an application for license or for an amendment, or a request for inspection, pertaining to twenty-five acres or less, sixty days; . . . ."

In the instant case the evidence disclosed that on or about September 6, 1973, the defendant mailed application for a license to engage in the strip mining of coal. The application was received at the office of the Chief of the Division of Reclamation on September 10, 1973. By Chief's Order No. 563, dated November 7, 1973, the Chief of the Division of Reclamation denied the strip mine application for license in question. The return receipt and testimony of witness proved that the defendant received notification by certified mail of the denial of his application on November 9, 1973. The defendant received the return of his check that had accompanied his application on November 12, 1973.

Following the formula for time computation set out in Ohio Rules of Civil Procedure, Rule 6A, the overall time between September 10 and November 7 amounted to fifty-eight days.

The question to be decided here is whether or not the Chief of the Division of Reclamation "issued" an order denying a license within the prescribed period of sixty days. The defendant argued that the order had not been "issued" until notification had been received by the defendant; that the signing and mailing did not constitute an "issue" of the order. Black's Law Dictionary defines "issue", "To send forth; to emit; to promulgate; . . . .". It seems to this court that the signing and the mailing of the order constituted issuance of the order.

The date upon the Chief's Order No. 563 of November 7, 1973 is presumed to be the date on which the order was signed, and this presumption has gone unrefuted. Receipt of the order by defendant [4 ELR 20763] on November 9, 1973, supports the claim that it had been signed and mailed on November 7, 1973.

With the present state of United States Mail Service, the order could not conceivably have been mailed on November 9, 1973 and received on November 9, 1973. Also, the mailing could have been as late as November 8, 1973 and still have have been received by the addressee on November 9, 1973. It is far more likely that the mailing took place on November 7, 1973. It should be noted that both of these dates, November 7 and November 8, 1973 fall within the "prescribed" period.

Therefore, the holding must be and is that the Chief issued an order denying a license within the "prescribed" period and that the defendant did not by default receive a license to strip mine coal on the SE 1/4 of Section 10, Township 9, Range 3, Franklin Township, Coshocton County, Ohio.

In light of the above findings, the relief sought by plaintiff is granted in the form of an injunction, enjoining defendant, Blue Creek Coal, Inc., from "strip mining" at the pit in the SE 1/4 of Section 10, Franklin Township, Tuscarawas County, Ohio or from transporting or selling any coal which has previously been mined at such location unless and until a valid Ohio strip mine license has been obtained for the pit.

Defendant shall pay costs.

Counsel for plaintiff will prepare Judgment Entry in accordance with the above for signature of counsel for both parties and submission to the Court.

1. The source — United States Environmental Protection Agency, Legal Problems of Coal Mine Reclamation, Page 52 (1972).

2. Ohio Division of Reclamation Coal Strip Mining Statistical Report to July 1, 1973, released September 1, 1973, and United States Department of Agriculture Soil Conservation Service report of surface mining, January 29, 1974.