Keystone Bituminous Coal Assn. v. Duncan

• Citation: 771 F.2d 707
• Decision Date: 26 August 1985
• Docket Number: No. 84-3406,84-3406
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: , 15 Envtl. L. Rep. 20,862 KEYSTONE BITUMINOUS COAL ASSN., a Pennsylvania unincorporated association of bituminous coal producers, individually and as represented by certain of its member companies; Helvetia Coal Company, a Pennsylvania corporation; Rochester & Pittsburgh Coal Company, a Pennsylvania corporation; U.S. Steel Mining Co., Inc., a Delaware corporation, individually and as a trustee ad litem for Keystone Bituminous Coal Assn.; United States Steel Corporation, a Delaware corporation; and Consolidation Coal Company, a Delaware corporation, Appellants, v. Peter S. DUNCAN, indiv. and in his capacity as Secretary of the Commonwealth of Penna. Dept. of Environmental Resources, Philip Zullo, indiv. and in his capacity as Chief, Div. of Mine Subsidence of the Bureau of Mining and Reclamation of the Comm. of Penna., Dept. of Environmental Resources, and Thomas B. Alexander, indiv. and in his capacity as Chief, Section of Mine Subsidence Regulation of the Div. of Mine Subsidence of the Bureau of Mining and Reclamation of the Comm. of Penna., Dept. of Environmental Resources.

Page 707

771 F.2d 707

23 ERC 1273, 15 Envtl. L. Rep. 20,862

KEYSTONE BITUMINOUS COAL ASSN., a Pennsylvania unincorporated association of bituminous coal producers individually and as represented by certain of its member companies; Helvetia Coal Company, a Pennsylvania corporation; Rochester & Pittsburgh Coal Company, a Pennsylvania corporation; U.S. Steel Mining Co., Inc., a Delaware corporation, individually and as a trustee ad litem for Keystone Bituminous Coal Assn.; United States Steel Corporation, a Delaware corporation; and Consolidation Coal Company, a Delaware corporation, Appellants, v. Peter S. DUNCAN, indiv. and in his capacity as Secretary of the Commonwealth of Penna. Dept. of Environmental Resources Philip Zullo, indiv. and in his capacity as Chief, Div. of Mine Subsidence of the Bureau of Mining and Reclamation of the Comm. of Penna., Dept. of Environmental Resources, and Thomas B. Alexander, indiv. and in his capacity as Chief Section of Mine Subsidence Regulation of the Div. of Mine Subsidence of the Bureau of Mining and Reclamation of the Comm. of Penna., Dept. of Environmental Resources.

No. 84-3406.

United States Court of Appeals Third Circuit.

Argued Feb. 27, 1985.

Decided Aug. 26, 1985.

Henry McC. Ingram, Thomas C. Reed, Rose, Schmidt, Dixon & Hasley, Pittsburgh, Pa., for appellants.

LeRoy S. Zimmerman, Atty. Gen., Andrew S. Gordon, Sr. Deputy Atty. Gen. (argued), Marc Roda, Asst. Counsel Environmental Resources, Allen C. Warshaw, Sr. Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, Pa., for appellees.

Before ADAMS, WEIS and WISDOM, ^* Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Various owners and operators of bituminous coal mines brought suit pursuant to 42 U.S.C. Sec. 1983 (1982) challenging the constitutionality of state statutes and regulations governing the mining of coal in Pennsylvania. The district court granted summary judgment for defendants, holding that the state program violated neither the takings clause nor the contract clause of the Constitution, and was not an invalid exercise of the power of eminent domain. We agree with the district court, and accordingly affirm.

I

A.

Plaintiffs ¹ sought in an action in the district court to have several provisions of the Pennsylvania Bituminous Mine Subsidence and Land Conservation Act, 52 Pa.Cons.Stat.Ann. Sec. 1406.1 et seq. (Purdon Supp.1984-85) (Subsidence Act), and its implementing regulations promulgated by the state Department of Environmental Resources (DER), declared unconstitutional. Named as defendants were those officials of the DER responsible for administering the Act. ²

In February 1984, following pretrial proceedings designed to narrow the factual and legal issues, the district court denied plaintiffs' motion for summary judgment, granted the DER partial summary judgment and dismissed the complaint. As a consequence of post-trial motions the matter was reopened and upon joint request of the parties, the district court certified several issues for appeal and stayed further proceedings in the district court. ³ We accepted jurisdiction pursuant to 28 U.S.C. Sec. 1292(b) (1982). ⁴

B.

Plaintiffs operate underground bituminous coal mines in Western Pennsylvania, generally employing two different mining methods. The "room and pillar" method consists of a two-step process. During the first step, as coal is removed from the mine, blocks of coal known as pillars are left in place in a pre-planned pattern to support the strata overlying the coal seam being mined. Second, when the primary mining is substantially completed in a particular area, the coal pillars are systematically removed as the mining operation retreats. Operators seek to remove as many coal pillars as possible, consistent with safety.

The second method, known as the "longwall panel" method, also has two phases. In the first, as mining proceeds coal pillars are left in place on either side of a longwall panel of coal-laden earth. Once a series of large panels has been laid out, a piece of equipment known as a longwall miner is installed. It advances continuously through the panels removing coal.

For purposes of this litigation, the mineralogical fact of most significance is that subsidence--the lowering of the strata overlying a coal mine because of underground coal extraction--eventually results from both forms of coal mining. App. at 45. A substantial amount of the coal reserves in the mines operated by plaintiffs lies beneath buildings and other features located on land whose surface is owned by others. ⁵ Predominantly during the period 1890-1920, plaintiffs purchased from land owners the rights to mine and remove this coal. They also regularly secured waivers of the surface owners' rights to collect damages for harm to the surface or surface structures caused by subsidence.

C.

In 1966, Pennsylvania passed the Subsidence Act which, with later amendments and implementing regulations, creates a comprehensive arrangement governing bituminous coal mining in Pennsylvania. The present state program is in part a response to the federal Surface Mining Control and Reclamation Act of 1979, 30 U.S.C. Secs. 1201 et seq. (1982 and Supp.1983). The federal act provides that a state may assume primary control over mine reclamation activities within its borders by adopting a regulatory scheme at least as stringent as the minimum guidelines set forth in the federal laws. Pennsylvania's program was eventually approved under this scheme. See 30 C.F.R. Secs. 938.1-.20 (1983).

An original purpose of the state law was to preserve land in Pennsylvania, thus promoting the health, safety, and welfare of the people of the Commonwealth. An additional purpose was the preservation of a tax base for certain municipalities in order to enhance the Commonwealth's economic welfare. 52 Pa.Cons.Stat.Ann. Sec. 1406.3.

Plaintiffs challenge four aspects of the Subsidence Act. Section 4 and various Subsidence Regulations implementing both section 4 and section 5 require coal mine operators to leave a certain amount of coal in the ground for support under specified types of surface structures. These provisions apply notwithstanding an operator's ownership of mineral rights or support rights. It is alleged that these provisions abridge the takings clause of the Constitution, U.S. Const. amend. V ("nor shall private property be taken for public use, without just compensation"), and specifically the holding of the Supreme Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

Also challenged by the plaintiffs is the validity of section 6 of the Subsidence Act, which requires mine operators to pay compensation for subsidence damage to various structures, notwithstanding the existence of a damage waiver executed by the surface owner. In this regard, claims are raised under the contract clause, U.S. Const. art. I, Sec. 10, cl. 1, as well as the takings clause of the Constitution.

Similarly plaintiffs urge that a regulation requiring mine operators to repair any damage to surface land caused by subsidence to the extent technically feasible, 25 Pa.Admin.Code Sec. 89.147(b) (Shepard's 1985), violates the contract clause. Finally, section 15 of the Subsidence Act, which gives surface owners a right to purchase underlying coal for support notwithstanding a waiver of the right of support, is claimed to be an invalid exercise of the power of eminent domain in violation of the Fourteenth Amendment. The district court rejected all four of the plaintiffs' asserted grounds for relief. We address each contention in turn.

II.

A.

Section 4 of the Subsidence Act, 52 Pa.Cons.Stat.Ann. Sec. 1406.4, prohibits mine operators from mining "bituminous coal so as to cause damage as a result of the caving-in, collapse or subsidence of the following surface structures in place on April 27, 1966" in the proximity of a mine:

(1) Any public building or any noncommercial structure customarily used by the public, including but not being limited to churches, schools, hospitals, and municipal utilities or municipal public service operations.

(2) Any dwelling used for human habitation; and

(3) Any cemetery or public burial ground; unless the current owner of the structure consents and the resulting damage is fully repaired or compensated.

Pursuant to the legislation, Sec. 89.145 of the DER regulations repeats the section 4 list of protected structures, and adds:

(4) perennial streams and impoundments with a storage volume exceeding 20 acre feet;

(5) acquifers which serve as a significant source of water supply to any public water system; and

(6) coal refuse deposited under requirements of Chapter 90 (relating to coal refuse disposal).

25 Pa.Admin.Code Sec. 89.145 (Shepard's 1985).

Section 5(e) of the Act requires that, in order to prevent subsidence causing material damage, mine operators must adopt technologically and economically feasible measures to maximize mine stability and maintain the value and reasonably forseeable uses of surface land. Accompanying regulations specify that, at a minimum, the measures adopted must consist of the following:

(1) For each structure or feature to be protected, the operator shall provide a support area in which the amount of extraction is limited to 50%, leaving for support pillars of coal of a size and in a pattern which maximize bearing strength and are approved by the Department. No mining is permitted beneath a structure where the depth of overburden is less than 100 feet.

25 Pa.Admin.Code Sec. 89.146(b)(1) (Shepard's 1985).

Plaintiffs assert that these support requirements transgress the takings clause, relying particularly on Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

B.

The Constitution guarantees that private property shall not be taken for public use without just compensation. The Supreme Court, however, has not adopted a single precise formula for...