Drydock Coal Co., Inc. v. Division of Reclamation, 96-LW-4705
Decision Date | 19 November 1996 |
Docket Number | 96-LW-4705,95 CA 1668 |
Parties | DRYDOCK COAL COMPANY, INC., Appellant v. DIVISION OF RECLAMATION, Appellee Case |
Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Jack V. Oakley, P.O. Box 250, Buchtel, Ohio 45716 & John P. Lavelle, 8 North Court Street, P.O. Box 5693 Athens, Ohio 45701.
COUNSEL FOR APPELLEE: Mark G. Bonaventura, Assistant Attorney General, Division of Reclamation, Fountain Square, D2 Columbus, Ohio 43224.
DECISION
This is an appeal from a decision of the Ohio Reclamation Board of Review denying a request by Drydock Coal Company, Inc. appellant herein, to remove from an approved coal strip mining application a condition which bars appellant from mining within three hundred feet of an occupied dwelling.
Appellant assigns the following error:
"THE RECLAMATION BOARD OF REVIEW ERRED IN AFFIRMING THE DECISION OF THE CHIEF OF THE DIVISION OF RECLAMATION, WHICH IMPOSED A CONDITION TO PERMIT APPLICATION NO. 1289, WHICH PRECLUDES MINING IN THE PERMIT AREA WITHIN THREE HUNDRED FEET (300') OF OCCUPIED DWELLINGS; THE AFFIRMATION OF SAID DECISION BEING ARBITRARY, CAPRICIOUS, AND INCONSISTENT WITH THE LAW."
On August 14, 1996, in Graham v. Drydock Coal Company (1996), 76 Ohio St.3d 311, 667 N.E.2d 949, the Ohio Supreme Court decided that appellant does not have the right to strip mine the property in question in the case sub judice. On September 5, 1996, we ordered the parties to this appeal to file supplemental briefs on the question of whether or not the Graham decision renders this appeal moot.
On September 13, 1996, appellant filed a supplemental brief arguing that the Graham in decision does not render this appeal moot. Appellant wrote in pertinent part as follows:
(Emphasis added.)
Thus, appellant argued that because it may file a underground mining permit application in the future, the three hundred foot issue is not moot.
On September 16, 1996, appellee filed a supplemental brief arguing that the Graham decision renders this appeal moot. Appellee wrote in pertinent part as follows:
"Regardless of whether the RBR determination was correct, Drydock does not possess the right to conduct surface mining operations under the deeds; accordingly it cannot conduct such surface mining operations within 300 feet of a dwelling."
Thus, appellee argued that because Graham states that appellant may not conduct any surface mining operations on the property in question, the issue of whether appellant may surface mine within three hundred feet of a dwelling on the property is moot.
In State ex rel. Eliza Jennings, Inc. v. Noble (1990), 49 Ohio St.3d 71, 74, 551 N.E.2d 128, 131, the court quoted and followed longstanding case law for the proposition that courts have a duty to decide actual controversies and to refrain from rendering advisory opinions. The court wrote in pertinent part as follows:
"Next, we address appellee's motion to dismiss this case as moot. In determining whether a case is moot, `"[t]he duty of this court, as of every judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principals or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it...
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