Buckeye Forest Council, Inc. v. Div., 05-BE-23.

Citation2007 Ohio 965,172 Ohio App.3d 440,875 N.E.2d 631
Decision Date05 March 2007
Docket NumberNo. 05-BE-23.,05-BE-23.
PartiesBUCKEYE FOREST COUNCIL, INC. et al., Appellants, v. DIVISION OF MINERAL RESOURCES MANAGEMENT et al., Appellees.
CourtUnited States Court of Appeals (Ohio)

Britt, Campbell, Nagel & Sprout and John W. Sroat, for appellants Dysart Defenders and Chad Kister.

Mark G. Bonaventura, Holly N. Deeds Martin, and Robert A. Eubanks, Assistant Attorneys General; Linda Wilhelm Osterman, for appellee Division of Mineral Resources Management.

Porter, Wright, Morris & Arthur, L.L.P., Mark S. Stemm, and Robert J. Schmidt, Columbus; Michael J. Shaheen, for appellee Ohio Valley Coal Company.

DONOFRIO, Judge.

{¶ 1} Appellants, Buckeye Forest Council, Inc., Dysart Defenders, and Chad Kister appeal an administrative decision of the Reclamation Commission ("commission"), affirming the decision of appellee, the Division of Mineral Resources Management, Ohio Department of Natural Resources ("division"), granting intervenor-appellee, the Ohio Valley Coal Company ("OVCC") a permit to mine for coal.

{¶ 2} On January 12, 1998, appellants, a nonprofit organization formed for the purpose of protecting the biological integrity of Ohio forests and habitats, filed a Lands Unsuitable Petition ("LUP") under R.C. 1513.073(A)(2)(b) requesting that an area of land in Belmont County, Ohio, be named unsuitable for coal mining.1 R.C. 1513.073(A)(2)(b) states that an area of land can be named unsuitable for mining, if the mining could damage fragile lands that have important scientific and esthetic values and natural systems.

{¶ 3} The area of land appellants sought to be named unsuitable included the town of Bethesda, Ohio, Dysart Woods, and the surrounding area of land. Dysart Woods is owned by Ohio University and contains trees ranging from 300 to 400 years old; it is one of the last remaining old-growth forests. Appellants fear that if mining is allowed in the Dysart Woods area, the effect on the old trees will be devastating. Appellants claim that regardless of what type of mining occurs, whether it is longwall mining or room and pillar mining, the settling surface area may have an effect on the water level and the trees.

{¶ 4} OVCC, who now owns the right to mine this area of land, opposed the LUP. Under the area of land sought to be named unsuitable runs a section of the Pittsburgh No. 8 coal seam, which has an abundance of coal. OVCC claimed that it was exempt from the status of unsuitability by R.C. 1513.073(A)(5). R.C. 1513.073 exempts land that is otherwise unsuitable for mining if a coal-mining operation was already being conducted on the land on August 3, 1977, or under a permit for coal mining, or where substantial legal and financial commitments in a coal mining operation were in existence prior to January 4, 1977. R.C. 1513.073(A)(5).

{¶ 5} To fall under these exemptions, what was occurring on this land prior to 1977 must be considered. In the late 1960s and early 1970s, two mining systems existed in this area of land. One mining system was the Allison Mine and the other mining system was the Powhatan No. 6 Mine. Through buying, selling, and land swapping, in 1977 the western part of this area was the Allison Mine and the eastern part was Powhatan No. 6 Mine. In the 1970s, both of these mines were actively mining coal. In 1977, both mines had a coal contract with Cleveland Electric Illuminating Company ("CEI"). The actual mining that had occurred in Allison Mine was 5.7 miles from Dysart Woods. Powhatan No. 6 Mine's actual mining occurred 4.5 miles from Dysart Woods. However, the rest of the land that was not mined was dedicated to its respective mine. Through the change in the coal market over the past two decades, these mines were sold. OVCC now owns the rights to mine the Powhatan No. 6 Mine, Allison Mine, and the mine reserves for those respective mines.

{¶ 6} The Chief of the Division considered these facts and made a ruling in the May 3, 2000 letter to OVCC. The division first made a finding that Dysart Woods was unsuitable for mining. Regardless of this fact, the division stated that the Pittsburgh No. 8 coal seam was exempt from the unsuitability status. The division stated that the Pittsburgh No. 8 coal seam was a part of the original Allison Mine and Powhatan No. 6 Mine. The division found that under R.C. 1513.073(A)(5), the LUP area was exempt from the status of unsuitability due to operation prior to August 3, 1977, and the substantial legal and financial commitments ("SLFC") expended for this operation were in existence prior to January 4, 1977. Appellants appealed the decision to the commission. The commission affirmed the division's decision based on the SLFCs that were in effect on January 4, 1977. The commission declined to determine whether the division was correct in its determination that the Pittsburgh No. 8 coal seam was located on land on which coal-mining operation was being conducted on August 3, 1977. Appellants appealed the administrative decision to this court.

{¶ 7} This court affirmed the decision of the commission. Buckeye Forest Council v. Div. of Mineral Resources Mgt., Ohio Dept. of Natural Resources, 7th Dist. No. 01 BA 18, 2002-Ohio-3010, 2002 WL 1371007. This court made it a point to note that the decision did not grant OVCC permission to begin mining. OVCC still needed to obtain a permit in accordance with R.C. 1513.07 and 1513.071 before it could commence mining.

{¶ 8} On November 13, 2001, OVCC applied to the division for a permit for "longwall mining" and for "room and pillar mining" in the areas adjacent to Dysart Woods. Ohio Adm.Code 1501:13-4-13(C)(2)(e)(ii) requires that a minimum of one test hole be drilled every 160 acres of the application area. Given the permit area involved in this case, 16 test holes would be required. On February 9, 1990, the division granted a "test hole waiver" to OVCC, pursuant to Ohio Adm. Code 1501:13-3-13(C)(3), which reduced the number of test holes OVCC was required to drill to 13 holes.

{¶ 9} The division granted the permit to OVCC, permitting OVCC to mine no closer than 300 to 500 feet from Dysart Woods. OVCC's proposed plan was to leave coal pillars in place to support the ground above from collapsing in. The pillars are to be much larger than the ones normally used to insure Dysart Woods are unaffected by the mining. This plan was approved by the division as part of the permit.

{¶ 10} On September 15, 2003, appellants appealed the issuance of the permit to the commission. Appellants made a motion for temporary relief on September 18, 2004 to keep longwall mining 1,500 feet from Dysart Woods. The commission denied the motion.

{¶ 11} A hearing on the issue commenced on May 11, 2004. OVCC submitted spring studies and hydrological information that addressed the impact longwall mining would have on Dysart Woods. Along with the OVCC studies and information, the commission considered hydrologic and engineering data from the previous permit OVCC held to mine areas adjacent to Dysart Woods. This data has been collected over a 30-year span.

{¶ 12} After reviewing the studies and testimony, the commission affirmed the issuance of the permit to OVCC. This appeal followed.

{¶ 13} "An appellate court reviews the decision of the Board of Commissioners under the limited standard set forth in R.C. 1513.14. Pleasant City v. Ohio Dept. of Natl. Resources, Div. of Reclamation (1993), 67 Ohio St.3d 312, 316, 617 N.E.2d 1103. A reviewing court will affirm the decision of the Commission unless the court determines that it is `arbitrary, capricious or otherwise inconsistent with law.' R.C. 1513.14. If a reviewing court finds that the decision is `arbitrary, capricious or otherwise inconsistent with law,' the decision must be vacated and remanded to the Commission for further proceedings consistent with the judgment of the reviewing court. R.C. 1513.14. The arbitrary, capricious, or inconsistent with law standard of review is a deferential one which presumes that an agency's or board's actions are valid. R.C. 1513.02 (divesting the authority to administer and enforce Chapter 1513 to the division of Mineral Resources Management); Weiss v. Pub. Util. Comm. (2000), 90 Ohio St.3d 15, 17, 734 N.E.2d 775; Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694." Buckeye Forest Council, 2002-Ohio-3010, 2002 WL 1371007, at ¶ 7.

{¶ 14} Appellants' first assignment of error states:

{¶ 15} "The commission erred because the division of mineral resources management's policy and procedure directive governing water sampling, developed in closed meetings with industry representatives, constitutes unlawful rule-making as the policy is uniformly applied to all mining permit applications statewide and was adopted without any of the procedural safeguards required by R.C. Chapter 119."

{¶ 16} Appellants argue that the commission did not follow proper procedure when adopting Policy and Procedure Directive 2000-2 ("PPD") and, therefore, the policy is not valid. Appellants cite Jackson Cty. Environmental Commt. v. Schregardus (1994), 95 Ohio App.3d 527, 529, 642 N.E.2d 1142, in which the Tenth District Court of Appeals stated:

{¶ 17} "In adopting a `rule,' an agency is required to comply with the promulgation procedure set forth in R.C. Chapter 119. See R.C. 119.02. `Rule' is defined in R.C. 119.01(C) as: `any rule, regulation, or standard, having a general and uniform operation, adopted, promulgated, and enforced by any agency under the authority of the laws governing such agency, and includes any appendix to a rule. "Rule" does not include any internal management rule of an agency unless the internal management rule affects private rights.'"

{¶ 18} Under this standard, PPD qualifies as a rule. PPD is a...

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