CHAPTER 10

The Continuing Viability of Subjacent Support and Subsidence Damage Waivers: Fact orMyth?

Jeff A. Woods(1)

Wyatt, Tarrant & Combs

Lexington, Kentucky

Synopsis

§ 10.01. Common Law Rights of Support.

[1]--Nature of Subsidence and Support.

[2]--Rights of Support at Common Law.

§ 10.02. Waivers of Support Rights and Subsidence Damages at Common Law.

[1]--Express Waivers Are Enforceable at Common Law.

[2]--Implied Waivers Are Recognized in Some Jurisdictions.

[a]--Pennsylvania.

[b]--West Virginia.

[c]--Kentucky.

[d]--Ohio.

[3]--Implied Waivers Have Been Rejected in Some Jurisdictions.

§ 10.03. Common Law Exceptions Affecting Support Waivers.

[1]--Kentucky.

[2]--West Virginia.

[3]--Illinois.

[4]--Alabama.

§ 10.04. Provisions of the Federal Surface Mining Control and Reclamation Act Diminish the Viability of Surface SupportWaivers.

[1]--Applicable Provisions of SMCRA.

[2]--Regulatory Encroachments on Subsidence Waivers.

[a]--The Historical Background.

[b]--30 C.F.R. § 817.121(a) -- Subsidence Control.

[c]--30 C.F.R. § 817.121(c)(1) -- Restoration of Land.

[d]--30 C.F.R. § 817.121(c)(2) -- Repair or Compensation for

Subsidence-Damaged Structures.

[e]--30 C.F.R. § 817.121(d) -- Prohibition of Subsidence of Public

Buildings, Impoundments, and Aquifers.

§ 10.05. The Energy Policy Act of 1992.

[1]--Repair or Compensation for Subsidence-Damaged Structures.

[2]--Study of Pipeline Subsidence.

§ 10.06. The Struggle for Supremacy: Common Law Waivers or Subsidence Legislation and Regulation?

[1]--West Virginia.

[a]--Rose v. Oneida Coal Co., Inc.

[b]--Smerdell v. Consolidation Coal Co.

[c]--Giza v. Consolidation Coal Co.

[2]--Illinois.

[a]--Melvin v. Old Ben Coal Co.

[b]--Old Ben Coal Co. v. Department of Mines.

[c]--Rocking M. Ranch, Inc. v. Sahara Coal Co.

[3]--Virginia.

§ 10.07. Support Waivers Remain Viable Against Overlying Mineral Owners.

§ 10.08. Constitutional Considerations.

[1]--The Broad Police Power.

[2]--Takings Without Just Compensation.

[a]--Protected Property Rights.

[b]--Public Purpose.

[c]--Reasonable and Permissible Infringement.

[d]--A "Takings" Analysis of SMCRA and Energy Policy Act

Provisions.

[3]--The Contracts Clause.

[4]--Other Constitutional Considerations.

[a]--Equal Protection.

[b]--Vagueness.

§ 10.09. The Remaining Viability of Subjacent Support and Subsidence Damage Waivers.

[1]--Waivers Remain Viable Against Overlying Mineral Owners.

[2]--Waivers for Longwall Mining Remain Viable.

[3]--Protection Afforded to Room-and-Pillar Operators.

[4]--Remedial Provisions May Not Be Applicable to Planned Subsidence

Operators.

[5]--A Right to Subside Undeveloped Land May Not Be Impaired.

[6]--Constitutional Challenges.

[7]--Status of Waivers in Some Eastern States.

[a]--Illinois.

[b]--Ohio.

[c]--Pennsylvania.

[d]--West Virginia.

[7]--A Valid Subsidence Waiver Will Not Currently Foreclose

Application of Remedial Regulations in the Other Eastern States.

§ 10.01. Common Law Rights of Support.

[1]--Nature of Subsidence and Support.

Subsidence is the sinking or lowering of the earth's strata caused by the removal of coal from an underlyingseam. Subsidence usually appears as a sinkhole, trough, or fissure. Common law principles dealing withsubsidence and a surface owner's right of subjacent support have developed over the years as a result of theseverance of the surface and the mineral estates. The right to mine has generally been held to be subservientto the right of surface owners to have the surface maintained free from the effects of subsidence. In thecontext of the right of subjacent support, the word "surface" has been held to mean "that part of the earth orgeologic section lying over the minerals in question, unless the contract or conveyance otherwise defines it.It is not merely the top of the glacial drift, soil, or the agricultural surface."(2) As a result of this broaddefinition, owners of superincumbent seams of coal also typically enjoy the right of support, absent anyagreement to the contrary.(3)

[2]--Rights of Support at Common Law.

At common law, the owner of the surface has a right of subjacent support, an absolute right to have the

surface maintained in its natural state. This rule has its roots in English common law. It has beenuniversally recognized and adopted in the United States jurisdictions that have addressed it.(5) Stated interms of the mineral estate owner's obligations, the mineral owner has an absolute duty to maintain thesubsurface strata sufficiently to support any overlying strata owned by another and to ensure that theoverlying surface remains in its natural state.(6) The term "natural state" has been defined by one court as"the condition of the surface, including reasonable and forseeable [sic] improvements thereon, at the timethe coal was severed, not from the fee but from the earth."(7)

§ 10.02. Waivers of Support Rights and Subsidence Damages at Common Law.

Despite the absolute duty to support the surface and superincumbent strata, courts have consistentlyrecognized the rights of property owners to modify or eliminate the rights accruing to the surface estate orthe duties imposed on the mineral estate. Modification typically occurs when the surface estate is severedfrom the mineral estate. This can be accomplished either by grant or by reservation. The language usedvaries and can be important. If the language is express and clear, enforcement is nearly universal. Inaddition, some jurisdictions find and enforce waivers that are only implied.

[1]--Express Waivers Are Enforceable at Common Law.

The most common mechanism used to modify the surface owner's right to subjacent support is an expresswaiver.(8) It is normally included in the severance deed but may be created by a subsequent agreement as

well.(9) While most cases enforcing express waivers involve claims by surface owners, waivers are equallyapplicable to owners of overlying mineral strata.(10)

Several recent cases have involved attacks on the validity of support waivers, typically based on publicpolicy arguments in favor of protecting the surface. The primary motivation for these attacks is the increaseduse of longwall mining as a method of coal extraction.(11) With only one known exception, all courts thathave considered the validity of these waivers in connection with the use of the longwall mining methodhave upheld and enforced the waivers.(12) An argument commonly advanced by surface owners is thatmodern longwall mining techniques did not exist at the time their predecessors in title executed the waivers;therefore, the extent of the resulting disturbance could not have been contemplated and, consequently, thewaivers were not made knowingly. A successful response to this argument has been that, in determining thevalidity of any waiver, the issue is not whether a particular mining technique was contemplated but whetherthe surface owner intended to relinquish the right of subjacent support.(13)

The argument that a subsidence damage waiver should not be enforceable unless the parties specificallycontemplated the use of a particular mining technique is an offspring of court decisions holding that partiesto a deed must be found to have specifically contemplated the use of strip mining before that miningmethod would be permitted.(14) However, there are significant differences between strip mining andlongwall mining that frustrate this analogy. Modern longwall mining techniques are different than theunderground mining techniques used when most of the severance deeds were drafted, not in kind, but onlyin the degree of damage that longwall mining causes to the surface.(15) That the parties contemplated thepotential for that type of damage is demonstrated by the very fact they specified a waiver for subsidencedamage. An Ohio appellate court observed that an 1884 decision from that state imposing liability on aminer for failing to leave sufficient pillars for subjacent support demonstrates that, even a century ago,technology was available to remove enough coal to cause subsidence.(16) In enforcing a 1958 severancedeed granting a right to mine by "underground mining processes" and waiving "all damages in any mannerarising," but not containing a specific reference to subsidence or removal of subjacent support, the sameOhio court pointed out that the most obvious and likely damage to the reserved surface estate would be

subsidence.(17) Even those jurisdictions that refuse to apply broad form deed rights to the use of stripmining have acknowledged that a mineral owner could "of course, take advantage of developments in theoperation of underground mines which modern technology may make available."(18) This court reasonedthat no type of underground mining, whether it be longwall or anything else, requires the right to destroy thesurface in the same manner as strip mining.(19)

Our research has located only one opinion holding that a coal operator could not conduct longwall miningoperations because the severance of the mineral estate from the surface occurred prior to the "advent oflongwall mining." In an unpublished opinion, the Fifth District Appellate Court of Illinois held that allowingthe waiver of damages provision to protect against liability for longwall mining methods, "which entail thecertainty of subsidence, would be imposing upon the grantor of the waiver a far greater burden than heoriginally bargained for."(20) The court concluded that the waiver failed to "clearly and unequivocallydemonstrate" that the surface owner "contemplated" this particular mining method.(21) However, thisopinion was later withdrawn and vacated by the court. In Illinois, a withdrawn opinion may not be reliedupon either as precedent or as expressing the final views of the court.(22)

[2]--Implied Waivers Are Recognized in Some Jurisdictions.

A few jurisdictions have recognized a waiver of support rights by implication. These cases are quite limitedin number and typically narrow in scope.

[a]--Pennsylvania.

Pennsylvania courts recognize an enforceable waiver of support resulting from less than express language.Kellert v. Rochester & P. Coal & Iron Co.(23) interpreted a severance deed granting "all the coal ofwhatever kind" and releasing "all and every claim or claims for damages to the said land caused byoperating or working of said mines in a proper manner."(24) The court held that the release language was animplied waiver of the right to subjacent support, noting that the release:

is expressed in the broadest possible terms, and the only exception made on account of damages to thesurface by reason of the removal of the coal is those damages which might be caused by operating orworking the mines in an improper manner. The removal of all the coal, and this is the only ground ofcomplaint, is not an improper operating or working of the mines.(25)

More recently, in Commonwealth v. Fitzmartin,(26) a Pennsylvania court held that a severance deedreserving "all the coal" together with the right to mine "without any liability whatsoever for damages to saidlands or for injury to or diversion of waters flowing in, through, under, and upon said land" constituted animplied waiver of the right to subjacent support.(27)

[b]--West Virginia.

The state of West Virginia has a long line of implied waiver cases that have diminished the scope of theprinciple over the years. The cases appear to have begun in 1905, when the West Virginia court held that theexpress right to "mine, excavate, and remove all of said coal," as granted in a severance deed, operates as animplied waiver of the duty of subjacent support.(28) The rationale for this rule was explained in another caseas follows:

It is common knowledge in the coal fields that the removal of all of a seam of coal, even though severalhundred feet below the surface (as in this instance), is likely to cause some surface disturbance.

. . . .

It is not conceivable that one who was purchasing or reserving the surface would deliberately covenant thatall of the coal should be removed, if he were expecting the surface to be undisturbed.

. . . .

Both grantor and grantee would well know that all of the coal could not be removed if the surface were tobe kept intact.(29)

The implied waiver concept has been eroded in more recent cases. It has been limited to situations wherethe specific terms "all of said coal" are used in the mining clause. Similar language elsewhere in theinstrument and having the same apparent meaning has been held not to constitute an implied waiver. In a1921 case,(30) the conveyance clause not only granted "all of the coal" but also "the right of mining andremoving the said coal and all minerals from said land . . .."(31) The court held that, in the mining clause, theterm "all" did not modify "coal." Since the term "said coal" was used, the grantor did not waive his right ofsubjacent support.(32) In a 1950 decision,(33) the severance deed in issue conveyed

all the coal and other minerals in, upon and under the foregoing tract of land "together with all necessaryand convenient rights of way of ingress or egress in, over and through said land for the purpose of miningand removing said coal and other mineral or minerals upon the adjacent lands."(34)

The court refused to imply a waiver of support from this language:

The rule of the Griffin case is based on the use of the word "all" in connection with the mining rightsconveyed, and the failure to use, in the mining clause, the word "all" or its necessary, unqualified, or exactcounterpart or equivalent renders the rule inapplicable in any particular instance. Here the words "said coal"cannot be said to be the exact or a complete equivalent to "all the coal," even though the words "said coal"refer to generally to the conveyance of all the coal. The words "said coal" in the mining clause do notnecessarily mean all the coal; they mean as much of the coal conveyed as can be removed without injury tothe surface. At any rate the meaning of those words is not free from doubt or uncertainty; and for thatreason they are not sufficient to indicate a clear intent upon the part of the surface owners to waive theirright of subjacent support.(35)

Under the current status of West Virginia law, it appears that a waiver will be implied only in deedsexplicitly making reference in the mining clause to the right to remove "all the coal."

[c]--Kentucky.

The rule of implied waivers of subjacent support in Kentucky is even more tenuous than in West Virginia.The seminal Kentucky state court decision on subsidence waivers, Elk Horn Coal Corp. v. Johnson,(36)

construed an express waiver but, in dicta, indicated that implied waivers would also be enforced. However,there are no Kentucky state court decisions actually construing or enforcing an implied waiver.

In contrast, the Sixth Circuit, ostensibly applying Kentucky law, has construed and enforced a waiver byimplication. It did so under circumstances that have been explicitly rejected in West Virginia. In Thornberryv. Buchanan County Coal Corp.,(37) the court was presented with a severance deed conveying "all of thecoal in the Clintwood seam . . .."(38) The deed required that the mining rights "be exercised so as not tointerfere unnecessarily with the mining of other seams . . .."(39) The owner of the overlying strata contended

that the owner of the Clintwood seam was required to support the overlying strata. The court stated:

[I]f the plaintiff desired to retain support for his overlying seams of coal, he should have provided for it inplain language in the deed of conveyance. The defendant might not have been willing to pay for all of thecoal in the Clintwood seam if only half of it could be removed.(40)

The federal court held that the surface owner had waived the right to subjacent support by necessaryimplication. Unfortunately, the court cited no Kentucky authority in support of its decision.

[d]--Ohio.

Ohio too recognizes implied waivers under certain circumstances. In Rush v. Sines Brothers & Co.,(41) anOhio court held that an implied waiver arises when an owner of the fee sells the surface estate and retainsthe right to remove the minerals. More recently, in Wells v. American Electric Power Co.,(42) an Ohio courtheld that a severance deed granting the right to mine by underground mining processes, including a waiverof "all damages in any manner arising" from the mining and removal of the coal, was sufficient to waivesupport rights. As a result, the court affirmed a declaratory judgment that the surface owners could notprevent the mineral owners from longwall mining under their property.

[3]--Implied Waivers Have Been Rejected in Some Jurisdictions.

At least two eastern jurisdictions have indicated that implied waivers of surface support will not berecognized. Indiana has explicitly rejected the implied waiver doctrine, recognizing only express waivers ofthe right to subjacent support.(43) Illinois courts have not expressly rejected implied waivers; however,Illinois has made it clear that the owner of the surface estate owns the right to subjacent support unless thereis an express waiver of that right.(44)

§ 10.03. Common Law Exceptions Affecting Support Waivers.

Among the eastern states, only Kentucky currently incorporates any common law exceptions to theeffectiveness and enforceability of support waivers. In Kentucky, the waiver insulates the mineral ownerfrom liability for damage from subsidence unless the right is exercised in an arbitrary, wanton, or maliciousmanner.(45) No other eastern jurisdiction appears to have adopted such an exception, although at least twohave indicated that they may.

[1]--Kentucky.

Under Kentucky law, a mineral owner may be held liable for damages resulting from subsidence even in theface of an express subsidence damage waiver if the mineral owner exercised the right to subside in anarbitrary, wanton, or malicious manner. This exception arises out of the same restraint that was originallyimposed only on the exercise of "necessary or convenient" mining rights included in many broad formdeeds.(46)

Having created this exception, Kentucky appellate courts have carefully guarded it and require a highstandard of proof of misconduct by the mineral owner. There are no reported decisions in Kentucky actuallyupholding a jury verdict awarding damages for mining in an arbitrary, wanton, or malicious manner. Incontrast, several appellate decisions have overturned jury verdicts for the surface owner.(47) For example, inSentry Royalty Co. v. Kimmel,(48) a jury verdict for damages was reversed. The verdict was based onundisputed evidence that the mineral operator had deposited overburden spoil from a bench cut on a slopeabove a dwelling house, knowing this spoil would eventually slide into the house. It was also undisputed

that it would have been physically possible for the spoil to have been moved or placed elsewhere. The courtconcluded this was not arbitrary, wanton, or malicious because the mineral operator placed the spoil whereit was for economic reasons; placing the spoil elsewhere or bypassing the mining of the coal in that areawould have resulted in diminished revenue to the operator. The court reasoned that the operator could not beheld liable since it "did not have two equal choices, neither of which would cause it any detriment, such thatthe choice of the one that damaged the [plaintiffs' house] could have been said to be arbitrary."(49)

[2]--West Virginia.

The West Virginia courts have not carved an exception to the enforcement of subsidence damage waivers inthe event of willful or tortious acts, but have suggested that they may be persuaded to do so in theappropriate case. In Griffin v. Fairmont Coal Co.,(50) the West Virginia court affirmed the dismissal of aclaim for willful and negligent removal of pillars because the deed on which the action was based "clearlyand unequivocally authorized the defendant to do so."(51) More recently, in Stamp v. Windsor Power HouseCoal Co.,(52) the court rejected any claim of liability for negligent mining in the exercise of a waiver ofsubjacent support. However, the court explicitly reserved judgment on claims for wanton or willful acts:

[A]s presently constituted, [this court] does not necessarily approve of the holding in the Griffin case that asurface owner could not recover for a wilful or wanton act of those who were producing coal which theyown beneath the surface of the plaintiff's land. We are merely holding that the language of the instant deedprecludes recovery for Negligence.(53)

However, in 1988 the same court bypassed an opportunity to overturn Griffin. In Rose v. Oneida Coal Co.,Inc.,(54) the West Virginia Supreme Court of Appeals affirmed a summary judgment dismissing a claim thatthe coal operator had willfully, negligently, and wantonly caused the surface owners' water supply todisappear and their land to subside. The court affirmed the lower court's dismissal of the claim withoutreference to its prior suggestion that a claim of willful or wanton exercise of subsidence rights might besustainable. It merely noted that it "has long upheld contractual waivers of liability for damage fromsubsidence."(55)

[3]--Illinois.

A recent federal court decision in Illinois, Melvin v. Old Ben Coal Co.,(56) implies that claims of willful andwanton misconduct, as well as negligence claims, may be entertained for subsidence damage despite theoperator's express waiver of support. While focusing on claims made under Illinois surface mining statutes,the federal court denied summary judgment as to counts alleging negligent, willful, and wanton conduct.

[4]--Alabama.

Alabama, like West Virginia, suggested at one time that it might carve out an exception to the enforceabilityat common law of subsidence damage waivers in the event of intentional torts or unreasonable conduct.More recently it has backed away from this position.

In Eastwood Lands, Inc. v. United States Steel Corp.,(57) a mineral owner was held to have no duty tosupport the surface because the severance instrument contained an express waiver of the right to subjacentsupport. The court relied on its previous decision in Republic Steel Corp. v. Payne,(58) holding that anexpress waiver barred actions based on negligence even though the word "negligence" was not mentioned inthe waiver language; the waiver relieved the mineral owner "from any and all claims for damages."(59)

While it did not discuss a surface owner's ability to recover for willful, wanton, or arbitrary behavior by the

mineral owner, the court did state:

We hasten to add that this holding is limited to the facts of this case and should not be construed as anyexpression of opinion in cases where intentional torts are involved or where the subsurface is put to usebeyond a reasonable interpretation of the reserving instrument.(60)

In 1987 the Supreme Court of Alabama was presented with an opportunity to address the question ofliability for intentional acts. In Holmes v. Alabama Title Co.,(61) the trial court granted summary judgmentfor the mineral owner, finding that an express waiver existed. The owners of 128 overlying subdivision lotsargued that the waiver did not bar actions predicated on negligence, wantonness, trespass, and nuisance.(62)

The court rejected their contention because "[o]therwise, most of the exculpatory provisions, including thecovenant not to sue, would be without meaning."(63) The Alabama court concluded:

Accordingly, we hold that even if the land owners could produce a scintilla of evidence of nuisance ortrespass by [the mineral owner] or of evidence that [the mineral owner had] conducted its mining activitiesin a negligent or willful and wanton fashion, the unambiguous language in the deed effectively bars all suchclaims.(64)

§ 10.04. Provisions of the Federal Surface Mining Control and Reclamation Act Diminish the Viabilityof Surface Support Waivers.

The Surface Mining Control and Reclamation Act of 1977(65) (SMCRA or the Act) has direct impact, notonly on surface mining, but on underground mining as well. Regardless of the relationship between theowners of the mineral estate and the surface estate under common law, SMCRA alters this relationshipsubstantially. SMCRA, by statute, regulations, and interpretive case law, has imposed new performancestandards on the conduct of mine operators and new limits on the effectiveness of subsidence damageliability waivers. These requirements, which have been determined through lengthy and numerous courtbattles and extended rulemaking procedures, will have the effect of diminishing the scope and effectivenessof surface support waivers.

[1]--Applicable Provisions of SMCRA.

While its title suggests that SMCRA applies only to surface mining, the Act has had a profound effect onunderground mining operations as well. Surface coal mining operations governed by the Act include"surface impacts incident to an underground coal mine . . .."(66) While the Act directs the Secretary of theInterior (Secretary) to consider the distinct differences between surface and underground coal mining inadopting rules and regulations,(67) this statutory mandate has provided underground mine operators withlittle protection and provided the Secretary with little guidance as to how the Act should be applied tounderground operators.

In enacting SMCRA, Congress recognized that coal mining contributes significantly to the nation's energyrequirements; it is essential to the national interest to insure the existence of an economically healthy andexpanding underground coal mining industry, since an "overwhelming" percentage of the nation's coal canbe extracted only through underground mining methods.(68) The Act's purposes also include full protectionof the interests of surface land owners from mining operations, while encouraging the full utilization of coalresources through development and application of underground extraction technologies.(69) These findingsand purposes reveal the conflicting interests the Act is designed to ad-dress. Due to the grave consequencesof the statute and its regulations on industry and the environment, vigorous litigation has ensued.Consequently, sixteen years after the passage of SMCRA, the statute and regulations are still being

disputed. The subsidence provisions remain in question.

Specific provisions in SMCRA address subsidence. Section 516(70) is the primary provision addressing thesurface effects of underground coal mining operations. Subsection (a)(71) directs the Secretary to promulgaterules and regulations with regard to the surface effects of underground coal mining operations, provided thatthe Secretary also consider the differences between surface coal mining and underground coal mining.While this proviso has given the Secretary flexibility, it has provided little guidance (or restriction) as tohow, and to what degree, underground coal mining should be regulated.

The key operational part of Section 516 is subsection (b)(1), which provides in its entirety as follows:

Each permit issued under any approved State or Federal program pursuant to this Act and relating tounderground coal mining shall require the operator to --

(1) adopt measures consistent with known technology in order to prevent subsidence causing materialdamage to the extent technologically and economically feasible, maximize mine stability, and maintain thevalue and reasonably foreseeable use of such surface lands, except in those instances where the miningtechnology used requires planned subsidence in a predictable and controlled manner: Provided, Thatnothing in this subsection shall be construed to prohibit the standard method of room and pillar mining.(72)

Regulations promulgated under this subsection, together with subsequent litigation, have made it clear thatthe operator has the option of adopting one of two alternatives -- (1) to comply with the first threerequirements of conditionally preventing subsidence, maximizing mine stability, and maintaining the valueand use of the surface or, (2) to adopt planned subsidence techniques.(73) We are not aware of any decisionsinvolving the proviso that this subsection may not be construed to prohibit the standard method of room-and-pillar mining. It is not entirely clear whether the proviso gives room-and-pillar mining the same kind ofprotection as such planned subsidence techniques as longwall mining(74) or whether it simply means thatroom-and-pillar mining is not prohibited so long as the conditions of the subsection are otherwise met.

Except for operators adopting the planned subsidence option (and also, perhaps, room-and-pillar operators),the provision requires, first, that subsidence causing material damage be prevented to the extenttechnologically and economically feasible. The terms "material damage" and "to the extent technologicallyand economically feasible" are not defined by statute or regulation. However, it is clear that operators arenot required to prevent all subsidence.(75)

In response to comments regarding technological feasibility, the Office of Surface Mining Regulation andEnforcement (OSM) has stated: "The important point is that the regulatory authority cannot require theoperator to adopt measures which are beyond the state-of-the-art in subsidence control. The regulatoryauthority cannot, in effect, require the operator to adopt experimental methods to prevent subsidence."(76)

We are aware of no decisions construing the economic feasibility condition to the subsidence preventionrequirement. Is it sufficient that prevention measures are more costly to employ than not to employ, or mustthose measures be so expensive as to render the coal economically unmineable? Until Congress clarifies itsintent or challenges under these exceptions find their way through the courts, these issues will remainunresolved.

SMCRA also authorizes the governing regulatory agency to suspend underground coal mining activitiesunder urbanized areas and areas adjacent to industrial or commercial buildings, major impoundments, orpermanent streams to protect the stability of the land if there is "imminent danger" to inhabitants of theurbanized areas.(77) Whether the location in issue must be both an urbanized area and adjacent to buildings,impoundments, or streams, or whether the location may be either under an urbanized area or adjacent to

buildings, impoundments, or streams is not clear from the Act. The language of the Act better supports thefirst interpretation. The requirement for finding an imminent danger to inhabitants of urbanized areascertainly suggests that both conditions must exist. Moreover, the title of the subsection, which appears to belimited to urbanized areas, supports this conclusion also.

[2]--Regulatory Encroachments on Subsidence Waivers.

[a]--The Historical Background.

Under SMCRA, there were separate regulations established for the interim regulatory period(78) and thepermanent regulatory program.(79) While the interim regulations established performance standards forunderground mining,(80) they did not specifically regulate subsidence, nor were there any permittingrequirements relating to subsidence. The permittee was required only to "plan and conduct underground coalmining and reclamation operations to minimize disturbance of the prevailing hydrologic balance."(81) Theinterim program regulations pertaining to surface effects of underground mining were challenged andupheld as not arbitrary, capricious, nor inconsistent with the law.(82)

The initial regulations under the permanent regulatory program were issued in 1979 and includedperformance standards and permitting requirements with regard to subsidence.(83) The subsidence controlperformance standards were set out in four separate sections. The general requirements were included inSection 817.121;(84) the notice provision in Section 817.122;(85) a surface owner protection provision inSection 817.124;(86) and a buffer zone requirement in section 126.(87) There was also a regulation requiringa subsidence control plan.(88)

The current subsidence control regulations have been consolidated into three Sections.(89) Section 817.121contains not only the general requirements included in former Section 817.121, but also the surface ownerprotection requirements originally found in Section 817.124 and the buffer zone requirements in Section817.126. The subsidence notice provision is still found in Section 817.122 and the requirement of asubsidence control plan is still in Section 784.20. Many, but not all, of these provisions have been throughlitigation testing their facial validity.

[b]--30 C.F.R. § 817.121(a) -- Subsidence Control.

The current regulation at Section 817.121 contains the primary requirements regarding subsidence controland remediation. Subsection (a) requires that the underground mine operator

shall either adopt measures consistent with known technology which prevent subsidence from causingmaterial damage to the extent technologically and economically feasible, maximize mine stability, andmaintain the value and reasonably foreseeable use of surface lands; or adopt mining technology whichprovides for planned subsidence in a predictable and controlled manner. Nothing in this part shall beconstrued to prohibit the standard method of room-and-pillar mining.(90)

Like the statute on which it is based, this regulatory provision im-poses three independent duties on the coaloperator: (1) to prevent subsid-ence causing material damage to the extent technologically and economicallyfeasible; (2) to maximize mine stability; and (3) to maintain the value and reasonably foreseeable use of thesurface lands. However, this regulation is more explicit in that planned subsidence may be employed in lieuof subsidence prevention. It indicates the operator may either meet the three duties or adopt miningtechnology that provides for planned subsidence in a predictable and controlled manner. Like Section 516(c)of the Act ,(91) on which it is based, this regulation is equally unclear as to the subsidence prevention

responsibilities of a room-and-pillar operator.

This interpretation of the regulation was contested, but without a definitive ruling, in National WildlifeFederation v. Lujan.(92) The National Wildlife Federation (NWF) challenged certain portions of thesubsidence regulations. The NWF also challenged the interpretation of this rule which appeared in afootnote in one of the Secretary's briefs. This footnote stated:

In most cases an operator is required to prevent material damage to the extent technologically andeconomically feasible. . . . This does not mean that an operator has an absolute duty to prevent materialdamage . . . [Section 817.121 (a)] requires an operator to either (1) adopt measures to prevent subsidencefrom causing material damage to the extent technologically and economically feasible, maximize minestability, and maintain the value and reasonably foreseeable use of surface lands; or (2) adopt miningtechnology which provides for planned subsidence in a predictable and controlled manner. (Emphasisadded). Thus operators engaging in planned subsidence are not required to prevent subsidence and otheroperators are only required to prevent subsidence from causing material damage to the extenttechnologically and economically feasible.(93)

The NWF alleged that the Secretary had "radically altered his view of subsidence regulation in the UnitedStates generally, and his construction of 30 C.F.R. § 817.121(a) specifically."(94) It further claimed that,under the stated interpretation, an underground coal operator could use planned subsidence and causematerial damage to the natural land surface and structures, even where it is economically andtechnologically feasible to prevent that damage, and that there would be no duty to maintain the value anduse of the land when planned subsidence occurred. The NWF asserted that this position was contrary tostatute, the text of the regulation, and the Secretary's statements in the 1983 Preamble to this version of therule.(95)

The court, however, did not rule on this matter as the Secretary had taken no official action since theregulation was published. The court determined that it had jurisdiction only over the Secretary's action anddid not deem a footnote in his counsel's brief to constitute Secretarial action.(96) As a result, the issue wasnot settled. Given the plain meaning and reading of Section 817.121(a), it appears to be clear that there is anexception permitting an underground coal operator to use planned subsidence mining techniques withoutemploying subsidence prevention measures.

This exception for planned subsidence appears to recognize the longwall mining technique (currently thetypical mining method for planned subsidence), as an appropriate measure for subsidence control.(97) InSMCRA's legislative history, Congress expressed its intent to allow the use of longwall and other fullextraction mining techniques.(98) Apparently, it is the general understanding of industry that longwallmining constitutes compliance per se with the subsidence control provisions of Section 516(b)(1).(99) Thatunderstanding appears to be supported by the legislative intent of Congress.(100) This interpretation is alsosupported by OSM. In adopting Section 817.121(a), OSM stated: "[Para-graph (a) of § 817.121] wasproposed to be revised to make clear that mining methods resulting in planned subsidence were notprohibited."(101)

[c]--30 C.F.R. § 817.121(c)(1) -- Restoration of Land.

Subsection (c) of Section 817.121, the subsidence control regulation, has been the subject of much debateand litigation. It was promulgated with conflicting needs in mind. Under SMCRA, Congress sought toestablish a nationwide program to protect society and the environment from the adverse effects of surfacecoal mining operations.(102) It provided that the rights of persons with a legal interest in the land or

appurtenances be fully protected from those operations. However, Congress also explicitly indicated itsintention to preserve existing property rights. The Senate Committee on Energy and Natural Resources, inits report on Senate Bill 7, the Senate's version of SMCRA, stated:

Since the mining of coal became a profitable enterprise, there have been numerous instances in which themineral estate and the surface estate were separated, both on public and private lands. State laws govern theresolution of any disputes about property rights which might arise from such separations, and this Act doesnot attempt to tamper with such State laws. The Committee firmly believes that all valid existing propertyrights must be preserved, and has no intention whatsoever, by any provision of this bill, to change suchrights.(104)

Section 516 of SMCRA,(105) as adopted, is identical in substance to the provision proposed in Senate Bill7.(106) It is apparent that the Senate Committee did not intend that SMCRA would upset property rightsresulting from the separation of the mineral and surface estates. Clearly, waivers of support are typical ofthose rights.

Contrary to the Senate's admonition, the initial subsidence regulations, issued in 1979 under the CarterAdministration, provided full protection to surface owners with little consideration of their impact onproperty rights. The underground coal operator was required to (1) restore land materially damaged bysubsidence and (2) repair each damaged structure, or (3) purchase the damaged structure at fair marketvalue, or (4) compensate the owner for the diminution in value.(107) The regulation as initially promulgatedwas upheld.(108)

In 1983, under the Reagan Administration, the Secretary revised the regulation. It now requires theunderground mine operator to

(1) correct any material damage resulting from subsidence caused to surface lands, to the extenttechnologically and economically feasible, by restoring the land to a condition capable of maintaining thevalue and reasonably foreseeable uses which it was capable of supporting before subsidence.(109)

This provision requires the operator to restore subsided land without re-gard to existing state law, unlike therepair of structures provisions. Also unlike the 1979 regulation, this one does give some recognition to theinvestment-backed expectations of mineral owners by conditioning the requirements upon economicfeasibility. But, it does not provide an exception for the "planned subsidence" operator.

Industry challenged OSM's requirement to restore the subsided land.(110) Industry argued that the regulationrequiring restoration of subsided land without regard to state law or existing contracts was invalid because itwas contrary to the Act, destructive of state law, and impracticable. The Secretary asserted that the duty torestore the land stems from Sections 515(b)(2), 516(b)(1), and 516(b)(10) of SMCRA.(111)

The district court reasoned that Section 516(b)(1) addresses subsidence but not the question of remediation.The Secretary maintained that this void is filled by Section 515(b)(2), a surface mining remedial provisionthat would apply to underground mining by virtue of Section 516(b)(10). Therefore, underground mineoperators are required to restore land materially damaged by subsidence.

The court adopted the Secretary's position and noted that, while Section 516(b)(1) requires undergroundminers to prevent subsidence, it does not provide for redressing the impact of subsidence once it occurs.Therefore, the district court determined that the Section 515 requirements were made applicable throughSection 516(b)(10) to the extent that they pertained to remedial measures.(112)

The case was appealed to the D.C. Circuit in National Wildlife Federation v. Hodel.(113) Again the industryargued that the Secretary had exceeded his authority under SMCRA by establishing a duty to restore landdamaged by subsidence since only conditional prevention of subsidence was dictated by Section 516(b)(1)of SMCRA. The circuit court agreed with the industry's argument that the language of Section 516(b)(10)and the structure of the Act do not permit the wholesale incorporation of Section 515 requirementswhenever the provisions of Section 516 are less stringent than those of Section 515.(114) The court alsoagreed with the industry that Section 516(b)(10) did not provide a basis for this regulation, since Section516(b)(1) clearly dealt with "surface impacts" -- "subsidence causing material damage."(115) However, theD.C. Circuit did conclude that requiring the operator to correct material damage to land from subsidencewas justified under Section 516(b)(1), which requires the mine operator to "maintain the value andreasonably foreseeable use" of land subject to subsidence.(116)

The ruling of the D.C. Circuit represents the last word on justification for the restoration of surface landrequirement. There has been no further review of this issue. However, this ruling fails to recognize that theduty to "maintain the value and reasonably foreseeable use of such surface lands" does not apply to plannedsubsidence operators (i.e., longwall miners). It also fails to treat the proviso on which the court relied --"shall not be construed to prohibit the standard method of room-and-pillar mining."(117) While it seemsapparent from the language of Section 516(b)(1) that a planned subsidence operator has no duty to maintainthe value and reasonably foreseeable use of surface lands, it is even more apparent in the language ofSection 817.121(a) and, of course, it was explicitly so stated in the brief of the Secretary's counsel inNational Wildlife Federation v. Lujan.(118) Since the planned subsidence operator has no duty to maintainthe value and reasonably foreseeable use of surface lands, that standard could not serve as justification toimpose on that operator, by regulation, the duty to restore that value and use. For this reason, the Hodelrationale supporting Section 817.121(c)(1) may be subject to attack by planned subsidence operators.(119)

Room-and-pillar operators may have a similar, but more difficult, argument. Section 516(b)(1) only restrictsthe language of the subsection from causing the standard room-and-pillar mining method to be prohibited.The requirement that surface lands be restored to a condition capable of maintaining their value forreasonably foreseeable uses, while always presenting an additional cost, may not have the effect ofprohibiting room-and-pillar mining. However, in cases where the cost is so substantial as to render themining uneconomical, the room-and-pillar operator would have the opportunity to argue that the regulationeffectively prohibited the mining. Given those circumstances, the room-and-pillar operator would have thesame argument as the planned subsidence operator discussed above. Since this room-and-pillar operator hasno duty to "maintain the value and reasonably foreseeable use of surface lands," that standard could notserve as justification for imposing on the operator, by regulation, the duty to restore that value and use.

Currently, Section 817.121(c)(1) requires all underground coal mine operators to correct material damage toland resulting from subsidence to the extent technologically and economically feasible. It also requires thatthe mine operator restore the land "to a condition capable of maintaining the value and reasonablyforeseeable uses for which it was capable of supporting before subsidence." This regulation compromises theeconomic benefit of any subsidence damage waivers previously agreed to by the underground operator andsurface owner, or their respective predecessors in title. Of course, the regulation is subject to the potentialchallenge by longwall and room-and-pillar operators as to lack of regulatory authority, as well as toconstitutional considerations.(120)

[d]--30 C.F.R. § 817.121(c)(2) -- Repair or Compensation

for Subsidence-Damaged Structures.

The second part of Section 817.121(c) requires the underground coal operator to "either correct materialdamage resulting from subsidence caused to any structures or facilities by repairing the damage orcompensate the owner of such structures or facilities in the full amount of the diminution in value resultingfrom the subsidence."(121) However, subsection (2) has a proviso not included in subsection (1). Thisproviso is directly pertinent to the issue at hand -- the requirement is applicable only "to the extent requiredunder applicable provisions of State law." As it currently reads, this provision apparently would not impactany subsidence damage waivers currently recognized under state law.

A brief history of this provision is worth noting, since it appears that a regulation imposing these dutieswithout exception for existing rights under state law would also be upheld under the Act. The original ruleissued in 1979 required the repair of subsidence damage to structures or surface owner compensationtherefor irrespective of state law.(122) The Secretary proposed Section 817.121(c)(2) on July 8, 1985,(123)

incorporating the proviso giving deference to state law. The final regulation was issued without substantivechange on February 17, 1987.(124)

The current regulation containing the proviso was challenged by environmentalists, led by the NationalWildlife Federation. The coal industry, led by the National Coal Association, intervened in support of theSecretary.(125) Judge Flannery issued a memorandum opinion striking down only that portion of theregulation limiting its impact to the extent required by state law. He reasoned that SMCRA demonstrated nointent to differentiate between the duties owed by underground operators to land and those owed tostructures on the land.

This decision was appealed to the Court of Appeals for the D.C. Circuit in National Wildlife Federation v.Lujan,(126) not by the Secretary but by the coal industry. The D.C. Circuit held that the regulation governingsubsidence damage to structures, with its deference to state law, was based on a reasonable interpretation ofSMCRA. The court noted that the language of Section 516(b)(1) was ambiguous and, therefore, deferred tothe Secretary's interpretation.

The court also addressed SMCRA's purpose of assuring that rights of surface owners be fully protectedfrom coal mine operations. The court noted that the Secretary could rely on this purpose, together with therequirements of Section 516(b)(1)(127) that operators "maintain the value and reasonably foreseeable use" ofsurface lands, to issue a regulation imposing an obligation to repair subsidence damage to structures withoutregard to state law. However, the court also stated that these provisions did not require the Secretary topromulgate such a regulation.(128) Because SMCRA does not demonstrate any clear congressional intent asto whether coal operators must repair structures damaged by subsidence, the court held that the questionbecame one of whether the Secretary's regulation was based on a permissible interpretation of the Act. Theappellate court concluded that it was and, consequently, that the Secretary's action was neither arbitrary norcapricious.

The 1991 decision of the D.C. Circuit may be largely hollow for several reasons. First, the court made clearthat it would be within the proper discretion of the Secretary to delete the state law exception, just as it hadbeen within the Secretary's discretion to include it. Thus, the regulation could be changed at any time.Second, it would appear that most eastern states that have achieved primacy have chosen not to include anyexception for preexisting property rights in their respective regulations requiring repair of or compensationfor subsidence damaged structures.(129) Of the states reviewed, only West Virginia and Ohio have built inexceptions to the duty to repair or compensate for subsidence damaged structures. West Virginia hasadopted the language of Section 817.121(c) verbatim.(130) Ohio has taken a slightly different approach byproviding that "[a]ny agreement between the operator and a surface owner which addresses the repair of orthe compensation for damage to the surface owner's structures shall take precedence over the provisions of

this rule . . .." Third, the recently enacted Energy Policy Act of 1992, has imposed the duty torepair or compensate for damage from subsidence to certain structures without any exception for preexistingproperty rights recognized under state law.

[e]--30 C.F.R. § 817.121(d) -- Prohibition of Subsidence of

Public Buildings, Impoundments and Aquifers.

Subsection (d) of the Section 817.121 subsidence control regulation absolutely prohibits any undergroundmining activities beneath or adjacent to public buildings, churches, schools, hospitals, and impoundments orwater bodies with a storage capacity of 20 acre-feet or more. It permits only one exception: If the operator'ssubsidence control plan demonstrates that subsidence will not cause material damage to or reduce thereasonably foreseeable use of the designated facilities.(133) This subsection also authorizes the regulatoryauthority to limit the percentage of coal extracted under or adjacent to the designated facilities if necessaryto minimize damage to those facilities.(134)

If there is material damage to any of the facilities described in Section 817.121(d), the regulatory agencymay also suspend mining under or adjacent to the facility until the subsidence control plan is modified toinsure that there will be no further material damage to it.(135) The regulations further authorize theregulatory authority to suspend underground mining activities in urbanized areas or areas adjacent toindustrial or commercial buildings, major impoundments, or perennial streams if there is imminent danger tothe inhabitants of the urbanized areas.(136)

This subsection clearly encroaches upon support and subsidence damage waivers. It makes no exception forexisting rights under state law. It makes no exception for planned subsidence techniques. In fact, its onlyexception applies under circumstances where the subsidence damage waiver is essentially unnecessary, i.e.,where the operator can show that there will be no material subsidence damage.

We have found no judicial interpretations of this subsection. How-ever, it would appear to be subject toattack on two fronts. First, it may be argued that the regulation is not based on any reasonable interpretationof SMCRA provisions and, therefore, is arbitrary or capricious. Section 516(c),(137) on which this regulationis apparently based, appears to permit restrictions only under two circumstances: (1) when the mining occurs"under urbanized areas" and (2) if the regulatory authority "finds imminent danger to inhabitants of theurbanized area." Second, to the extent this subsection might arguably rely upon the authority of Section516(b)(1),(138) like subsection (c) of the same regulation, subsection (d) makes no exception for room-and-pillar operators, longwall mine operators, or any other "planned subsidence" operators. Therefore, Section516(b)(1) should provide no authority for this subsection as it applies to planned subsidence operators.

§ 10.05. The Energy Policy Act of 1992.

Congress has once again addressed the issue of subsidence in the Energy Policy Act of 1992.(139) TheEnergy Policy Act added a new section to the SMCRA.(140) This new section (Section 720 of SMCRA) isspecifically devoted to subsidence. In another provision, the Energy Policy Act directs the Secretary toundertake a survey of natural gas and petroleum pipeline safety as related to underground coal minesubsidence and report to Congress thereon within 18 months.

[1]--Repair or Compensation for Subsidence-Damaged

Structures.

The Energy Policy Act requires an underground coal mine operator to "[p]romptly repair, or compensate for,material damage resulting from subsidence caused to any occupied residential dwelling and structuresrelated thereto or non-commercial building due to underground coal mining operations."(141) Early drafts ofthis provision included protection for "any structure or facility." The final version is more likePennsylvania's Bituminous Coal Mine Subsidence and Land Conservation Act,(142) which protects "anypublic building or any noncommercial structure customarily used by the public" and "any dwelling used forhuman habitation."(143)

The Pennsylvania act goes on to set out the means by which "repair" and "compensation" shall beaccomplished. The repair of the damage "shall include rehabilitation, restoration, or replacement of thedamaged occupied residential dwelling and structures related thereto, or non-commercial building."(144)

Compensation "shall be provided to the owner of the damaged occupied residential dwelling and structuresrelated thereto or non-commercial building and shall be in the full amount of the diminution in valueresulting from the subsidence."(145) The regulation adds that compensation "may be accomplished by thepurchase, prior to mining, of a noncancellable premium-prepaid insurance policy."(146)

The Energy Policy Act also requires an underground coal mining operation to "[p]romptly replace anydrinking, domestic, or residential water supply from a well or spring in existence prior to the application fora surface coal mining and reclamation permit, which has been affected by contamination, diminution, orinterruption resulting from underground coal mining operations."(147) It adds: "Nothing in this section shallbe construed to prohibit or interrupt underground coal mining operations."(148)

Unlike the SMCRA regulations, the Energy Policy Act does not address surface lands. Instead, it seeksremedy only for damage to "occupied residential dwellings, structures related thereto, and non-commercialbuildings." The current SMCRA regulations do provide for repair or compensation for damage to "anystructures or facilities," but only to the extent required under applicable provisions of state law.(149) Itappears that the subsidence repair provision of the Energy Policy Act was driven by Congress' reaction tothe qualifications in the SMCRA regulations that the repair or compensation for damage to structures andfacilities was limited to applicable provisions of state law. As noted in the House Report, the focus of aFebruary 29, 1992 subcommittee oversight hearing was on the OSM's lack of action in resolving a numberof out-standing regulatory issues almost 15 years after passage of SMCRA. The provision requiring repairof or compensation for subsidence damage to homes and water supplies "was taken in response to theagency's refusal to promulgate these types of regulations using its existing authority."(150)

Congress did place some qualifications on the remedies it provided for subsidence damage. The damagedresidential dwelling (and structures related thereto) must be "occupied."(151) Likewise, "commercial"buildings are apparently excluded.(152) Just as the Secretary's regulations spawned litigation, this statute willno doubt raise issues as to what surface improvements are to be repaired or compensated. Would anunoccupied residential dwelling (and structures related thereto) constitute a "non-commercial building?"Likewise, can a commercial building (e.g., an apartment building) ever be deemed an "occupied residentialdwelling?"

The Secretary is under a mandate to promulgate final regulations implementing this Section by October 24,1992.

[2]--Study of Pipeline Subsidence.

The Secretary is also under a mandate to "review existing requirements related to underground coal mine

subsidence and natural gas and petroleum pipeline safety." Congress specifically set forth what is to beincluded in this review. With respect to the prevention or mitigation of damage from subsidence, theSecretary must consider "notification; mitigation; coordination; requirements of the Natural Gas PipelineSafety Act and the Hazardous Liquid Pipeline Safety Act; and the status of Federal, State, and local laws, aswell as common law."(154)

The Secretary's survey must include the status of "the responsibilities of the relevant parties for costsresulting from damage due to subsidence or from mitigation efforts undertaken to prevent damage fromsubsidence."(155) The Secretary is required to consult with the Secretary of Transportation, the AttorneyGeneral, appropriate state officials, natural gas companies, petroleum pipeline companies, and coalcompanies.(156)

The Secretary is required to submit a report detailing the results of this study to the Senate Committee onEnergy and Natural Resources and the House of Representatives Committee on Interior and Insular Affairsby April 24, 1994.(157) The signals are strong that there will be more legislation in this area.

§ 10.06. The Struggle for Supremacy: Common Law Waivers or Subsidence Legislation andRegulation?

The provisions of the Energy Policy Act are too new to have faced the challenge of common law subsidencedamage waivers in the appellate courts. We have found no reported decisions on this issue.

In contrast, SMCRA legislation and the regulations issued thereunder regarding subsidence control andrepair have been in place for nearly 15 years. Nevertheless, there are surprisingly few reported casesdiscussing the conflict and its appropriate resolution. It is apparent that, in large part, underground coaloperators are choosing to comply with the regulations in the permitting process rather than risk delay bycontesting them. It also appears that those surface owners who are choosing to challenge subsidence waiversby litigation are not often alleging violations of SMCRA's subsidence control and remedial provisions.

The application of SMCRA's subsidence control and repair regulations in the face of common lawsubsidence damage waivers has been litigated in three states -- West Virginia, Illinois, and Virginia -- withrelatively clear, but contradictory, results in West Virginia and Illinois. Each of these states has achievedprimacy by adopting its own SMCRA legislation. However, the differing results do not appear to be basedon any unique statutory or regulatory provisions.

[1]--West Virginia.

West Virginia recognizes express waivers and, under limited circumstances, implied waivers. Those waiversappear to remain viable.

[a]--Rose v. Oneida Coal Co., Inc.(158)

The plaintiffs, Mr. and Mrs. Rose, alleged that Oneida had willfully, negligently, and wantonly caused theirwater supply to disappear and their land to subside. The lower court granted summary judgment in favor ofOneida, holding that the waiver of liability in the 1915 severance deed was enforceable against the plaintiffs.The severance deed reserved all the coal and the right to mine the coal without being liable "for any injuryto said land, or to anything therein or thereon, by reason of the mining and removal of said coal therefrom,and the coal from neighboring lands, without being required to provide for the overlying strata orsurface."(159) The Plaintiffs appealed, arguing that the waiver of liability in the severance deed was contraryto public policy.

The West Virginia Supreme Court of Appeals acknowledged West Virginia's established rule of upholdingcontractual waivers of liability for damages from subsidence and found this waiver to be clear andenforceable. However, the court did note that the Roses may have a cause of action for subsidence damageto their land under the West Virginia Surface Coal Mining and Reclamation Act(160) (WVSCMRA). Thecourt commented on its belief that the WVSCMRA had "changed many of the old common law rulesconcerning the rights and remedies of surface owners vis-a-vis mineral owners," but noted that "thedimensions of those changes are yet uncertain."(161) However, the court did not rule on this questionbecause the Roses had failed to plead or argue the WVSCMRA claims below. The appellate court went outof its way, however, to state that the Roses were not collaterally estopped from bringing a new action basedon the WVSCMRA. The opinion left an open invitation to do so.

[b]--Smerdell v. Consolidation Coal Co.(162)

Mr. and Mrs. Smerdell filed this case in West Virginia state court seeking compensation for allegedsubsidence damages to their dwelling and surface land. Consolidation Coal Company (Consol) removed thecase to the U.S. District Court for the Northern District of West Virginia on diversity of citizenship grounds.Consol then moved for summary judgment on the basis of a subsidence waiver in the severance deed, whichconveyed to Consol's predecessors in title "all of the coal" in the seam in issue under the Smerdells' surfaceproperty "together with the right to mine and remove all and every part of said coal . . ., and without liabilityfor any damage to the overlying strata, or to anything therein or thereon, in mining and removing saidcoal."(163) The Smerdells responded, contending, inter alia, that SMCRA and the WVSCMRA had renderedthe waivers void.(164)

The Smerdells did not dispute that, at common law, waivers of the right to subjacent support areenforceable. The court readily concluded that the waiver in their chain of title was sufficiently clear andexplicit under West Virginia common law and turned its attention to the claims under SMCRA andWVSCMRA.

To determine how SMCRA may have impacted the existing West Virginia common law, the court firstreviewed the Act's history. In so doing, the court focused upon the decision of the district court in In RePermanent II, which held that "[t]here is no indication from the Act that Congress intended to pre-emptstate common law. Indeed, it is apparent that the Act and state common law can co-exist and serve the goalsof the statute."(165) The court also placed some reliance on the recent West Virginia Supreme Court ofAppeals decision in Russell v. Island Creek Coal Co.(166) for the proposition that "a pre-SMCRA waivermay validly extinguish rights afforded under SMCRA, provided the `waiver was specific, knowing, andunder the circumstances, clearly contemplated by the parties.'"(167) However, the court's reliance on Russellcould not have been great, as that case dealt with strip mining damage to the plaintiffs' ground water supplyand the enforceability of a pre-existing waiver between the parties.

The primary issue in Russell was not whether West Virginia common law or SMCRA must prevail, butwhether the applicable WVSCMRA statutory provision,(168) which expressly recognized these waivers inlieu of the otherwise compelled statutory compliance to replace interrupted water supplies, was in conflictwith its SMCRA counterpart,(169) which did not include a similar exception. The West Virginia courts hadpreviously held that, because West Virginia law, under primacy, was required to be at least as stringent asSMCRA, whenever a WVSCMRA provision appeared inconsistent with SMCRA, the state provision wouldbe read in a way consistent with the federal Act. Here, the court concluded that there was no inherentinconsistency since the SMCRA provision was silent on the validity of waivers.

The West Virginia court made reference to the case of National Wildlife Federation v. Hodel,(170) where the

Secretary had interpreted the rule at issue as not requiring replacement of water supplies to the extent thesurface coal mine operator "consumes or legitimately uses the water supply under a senior water rightdetermined under applicable State law."(171) The Russell court quoted approvingly from the D.C. Circuit'sdecision in Hodel, which noted that the federal SMCRA provision "does not deprive anyone, including mineoperators, of whatever rights to the use of water they had previously . . .. Moreover, throughout theSMCRA, Congress expressed a concern for preserving existing property rights, and for not interfering withstate determination of those rights."(172)

From this historical review, the Smerdell court concluded that "SMCRA and WVSCMRA have not renderedinvalid the common law of West Virginia on waivers of the right to subjacent support."(173)

[c]--Giza v. Consolidation Coal Co.(174)

Giza v. Consolidation Coal Co. was substantially identical to Smerdell, involving similar claims and thesame issues. In an unpublished opinion rendered about four months before the Smerdell opinion, JudgeStamp, District Court Judge for the Northern District of West Virginia, addressed the same SMCRA pre-emption issue as he later addressed in Smerdell. He resolved it in the same fashion, concluding thatcontentions that "SMCRA and WVSCMRA have rendered the 1901 waivers void must . . . be rejected."(175)

The only difference from his analysis in Smerdell was the absence of any reference to Russell.

The decision was appealed to the Fourth Circuit. In an unpublished opinion issued on August 11, 1992, thecourt affirmed Judge Stamp's decision.(176) The per curiam ruling was three sentences long and stated:

Chester A. and Yueh-Hua Giza appeal from the District Court's order granting summary judgment todefendant Consolidation Coal Company. Our review of the record and the District Court's opinion disclosesthat this appeal is without merit. Accordingly, we affirm on the basis of the opinion of the DistrictCourt.(177)

Whether the West Virginia state courts would concur remains an open question. This author does notbelieve the opinion in Russell closes the door that was opened in Rose. However, we might fairly speculatethat the West Virginia state courts would defer to the decision of the federal courts regarding the scope andintent of the federal SMCRA.

[2]--Illinois.

In a series of federal and state cases, Illinois appears to have taken a different view than the Smerdell courtand has refused to uphold waivers of support rights to the extent they conflict with the repair, restoration,and compensation provisions of SMCRA and its Illinois counterpart.

[a]--Melvin v. Old Ben Coal Co.(178)

In 1985, the U.S. District Court for the Southern District of Illinois issued two opinions in this matter. In thefirst, the court overruled Old Ben's motion to dismiss the Melvins' claim that Old Ben's longwall miningoperation caused their land to subside, resulting in damage to their home, swimming pool, and outbuildings.The plaintiff's claim was based on several theories, including an alleged violation of the Illinois SurfaceCoal Mining Land Conservation and Reclamation Act(179) (the Illinois Act). As the court noted, the IllinoisAct contains substantially the same language as Section 516(b)(1) of its federal counterpart. Old Ben arguedthat the provision did not apply to longwall mining because that mining method involved plannedsubsidence.

The district court rejected this claim and, in its first opinion, suggested that subsidence was no longerpermitted at all: "Both the federal and the state permit programs mandate subsidence prevention."(180) Itstated further that

to accept defendant's analysis of [the Illinois Act provision] would be to render the subsidence preventionprovisions of the Illinois . . . Act ineffective; operators would be required to prevent only accidentalsubsidence, but could engage in deliberate subsidence at will. The Court will not interpret [the Illinois Actprovision] to reach such an absurd result.(181)

In rejecting Old Ben's claim that it should be allowed to rely on its waiver, which had been enforced atcommon law for more than a century, the court responded that the Illinois legislature had "disturbed" priorIllinois common law on the subject by enacting its counterpart to SMCRA and, "[t]o the extent that thewaiver of surface support conflicts with the policy of Illinois regarding subsidence control, the waiver shallbe unenforceable."(182)

Old Ben filed a motion to reconsider and clarify, which the court granted. In its second opinion, the courtcharacterized the motion as "misconstru[ing] the Court's prior opinion as mandating an absolute and totalprohibition on subsidence caused by coal mining."(183) The court acknowledged that the Illinois Act allowedsubsidence under certain circumstances, "such as longwall mining, where `the mining technology usedrequires planned subsidence in a predictable and controlled manner.'"(184) The court pointed out, however,that this does not mean that longwall mining operations are exempt from the remedial provisions relating tosubsidence. It stated:

Clearly, the enforcement of waivers regarding subsidence damage is not contemplated by federal coalmining laws and regulations or by the analogous Illinois laws and regulations. The position taken by theIllinois Department of Mines and Minerals that all operators are required to control the adverse effects ofsubsidence damage by mitigating the same and compensating surface owners for damages does not supportdefendant's argument that the subsidence damage waiver is valid and enforceable.(185)

It may be significant that, at the time of the mining in question, as well as at the time of the decision, OSM'sSection 817.121(c)(2) did not have the qualifying language, "to the extent required under applicableprovisions of State law." This condition was not proposed until July 1985 and was not adopted untilFebruary 1987.(186) While that provision may have made the difference in the court's analysis regarding theduty to repair or compensate for damage to structures, there is no reason to believe that the court would nothold the same today as to duties to restore land under Section 817.121(c)(1), nor as to duties to repair orcompensate for damages to occupied dwellings and noncommercial buildings under the Energy Policy Act.Neither includes the qualifying deference to state law. Moreover, since the Illinois counterpart regulationstill has no exception for pre-existing property rights under Illinois common law,(187) there is no reason tobelieve the Illinois courts would construe the provision any differently today.

[b]--Old Ben Coal Co. v. Department of Mines.(188)

In 1988, Old Ben commenced an action against the Illinois Department of Mines and Minerals (IDMM),seeking to vacate conditions imposed in four of its permits requiring it to repair or restore structuresdamaged by subsidence. Old Ben apparently advanced four arguments:

1. The failure of the IDMM to include in its state counterpart rule to Section 817.121(c)(2) a qualifyingcondition that it only applied to the extent required by state law was outside its authority;

2. Notwithstanding its failure to defer to state law, the repair or restoration provision should not apply to

longwall mining;

3. The repair or restoration requirements constituted an unlawful taking of Old Ben's surface supportwaivers; and

4. The repair or restoration requirements constituted an unlawful impairment of its contractual rights in itssupport waivers.

A state intermediate appellate court rejected all of these arguments and upheld the permits as issued. Thecourt held that, because Section 817.121(c)(2) deferred to state law, it granted the state authority topromulgate regulations requiring repair or restoration. That is to say, the court did not interpret the federalregulatory proviso as creating an explicit deference to pre-existing state law, but as a deference to whateverstate law the state might want to enact. In so doing, however, the court recognized that the purpose of thefederal proviso was to protect existing property rights. It stated:

The purpose for the change in the rule [the 1987 change to 30 C.F.R. § 817.121(c)(2) adding the deferenceto state law] was to correct perceived inequities created by the 1979 rule which imposed a restoration andrepair requirement for structures damaged by subsidence regardless of whether the coal operator had surfacesupport waivers. The rationale behind this was that Congress had not intended to create new property rights,but to protect existing ones. (52 Fed. Reg. 4860 (February 17, 1987).) By deferring to State law in order toallow states to recognize the validity of common law waivers, however, this section also allows States torequire repair or restoration.(189)

While explicitly recognizing that the purpose of the change in the federal regulation was to protect existingproperty rights, this Illinois appellate court engaged in an interpretation of the rule that permitted the Illinoisregulatory authority to create a new property right in derogation of the existing subjacent support waivers.

The court next addressed the issue of whether the repair or restoration provisions could be extended todamage from longwall mining. It reached the same conclusion as the clarified opinion of Melvin v. Old Ben-- that it did. The court found that Old Ben's argument -- the specific statutory exception permitting plannedsubsidence technologies like longwall mining meant that coal operators using these techniques were exemptfrom the duty to repair or restore damaged structures -- was "[un]tenable within the Anglo-American systemof jurisprudence."(190) The court recognized that it would be illogical to require an operator using plannedsubsidence to, at the same time, take steps to prevent subsidence. The court concluded, however, thatpermitting longwall operators to subside "is a far cry . . . from relieving coal operators of any responsibilityto repair or restore subsidence damage."(191)

This decision essentially cements the clarified opinion in the federal court decision in Melvin v. Old BenCoal Co.(192) Unless and until Illinois amends its repair and restore regulation explicitly to exempt pre-existing state property rights, it appears that operators in Illinois will be required to repair or compensate forstructures damaged by subsidence.(193)

[c]--Rocking M. Ranch, Inc. v. Sahara Coal Co.(194)

This action did not involve subsidence damage to structures, but only a claim for damages to grazing andcrop land. Sahara owned the coal under a 1927 severance deed relieving it from any duty to providesubjacent support and from any liability for subsidence damage. The suit alleged violation of a common lawduty to provide subjacent support and contended that the waiver should be unenforceable as a matter ofpublic policy. An Illinois intermediate appellate court, the same court that eight months earlier had rejectedOld Ben's waivers-based claims, rejected the plaintiff's public policy arguments for recovery. It concluded

that the Illinois Act "clearly contemplates and accepts the occurrence of subsidence, both planned andunplanned . . .."(195) Moreover, because the plaintiff had failed to plead any violation of SMCRA or itsIllinois counterpart, the court upheld the summary judgment granted to Old Ben on its express waiver. In sodoing, the court did, again, point out that

because the duties imposed upon coal operators by the [Illinois Act] are owed to the general public and aretherefore unaffected by any waiver of subjacent support given by the surface owners, in most cases, the coaloperator would have a duty to repair and restore surface lands and structures notwithstanding any waiver bythe surface owner.(196)

It is abundantly clear that, under current Illinois law, the owners of otherwise valid subsidence damagewaivers will not enjoy the benefit of those waivers, at least as to damage incurred by owners of surfacelands and structures who are astute enough to rely upon the Illinois regulations.

[3]--Virginia.

One court within the state of Virginia has had occasion to address subsidence damage waiver provisions inlight of that state's version of SMCRA. That decision, while apparently recognizing the viability of aSMCRA-type claim related to subsidence damage, leaves no definitive ruling for guidance.

In Ball v. Island Creek Coal Co.,(197) the surface owners alleged that longwall mining by Island Creek hadcaused severe vibrations, shocks, and subsidence, resulting in damage to their property. The plaintiffs alsoalleged the mining had caused a release of methane gas resulting in a gas fire that destroyed one of theplaintiffs' home and dairy building. The plaintiffs sought damages on theories of strict liability, negligence,nuisance, and violation of the Virginia Coal Surface Mining Control and Reclamation Act(VaSMCRA).(198)

The matter was before the federal district court on a motion by Island Creek for summary judgment. Aftergranting summary judgment for Island Creek on the plaintiffs' common law claims,(199) the court turned tothe VaSMCRA claims.

The plaintiffs' complaint sought damages under a VaSMCRA section that allowed any person having aninterest that might be adversely affected to compel compliance with VaSMCRA by commencing a civilaction on his own behalf against any person alleged to be in violation of VaSMCRA.(200) The VirginiaDivision of Mined Land Reclamation had issued a Notice of Violation (NOV) to Island Creek for failing tonotify residents six months before mining beneath their property and for failure to repair damage caused bysubsidence. However, the NOV had been terminated because Island Creek had initiated settlement offerswith the parties involved. The plaintiffs alleged that the settlement offers were inadequate and asked thecourt to determine their damages and require Island Creek to comply with the NOV. The court noted that,before an action could be brought under the statute, the plaintiffs must give written notice of the violation tothe Secretary of the Interior, the Director of the Virginia Department of Mines, Minerals, and Energy, andany alleged violator.(201) Because this notice had not been given, the court dismissed the requests forinjunctive relief based on VaSMCRA. The court did note, however, that the plaintiffs were not precludedfrom taking further action to perfect their claim under VaSMCRA.

The plaintiffs also claimed damages for injuries from alleged violations by Island Creek of regulationsissued under VaSMCRA. Anyone who has suffered injury to person or property as a result of a violation byan operator of any rule, regulation, order, or permit issued under VaSMCRA may bring an action fordamages.(202) While there was evidence of VaSMCRA violations, the plaintiffs submitted no evidence toshow that their injuries were a result of these violations. The court found that the evidence indicated that the

plaintiff's damages were the result of the subsidence itself, which had not been alleged to be a violation ofthe statute or regulations. The court concluded that the claim failed to meet the statutory requirement for anaction for "an injury resulting from a violation."(203)

There is no clear conclusion regarding the supremacy of common law waivers or VaSMCRA to be drawnfrom this decision. The fact that the court dismissed the VaSMCRA claims only on procedural pleading andnotice defects might indicate that, but for those defects, the court was ready to honor the claims in the faceof the clear and express waiver owned by Island Creek. On the other hand, one might assume that the courtnever reached the more difficult substantive questions regarding the VaSMCRA provisions and theotherwise enforceable waivers because of these same procedural defects.

A rather unique savings clause in VaSMCRA serves to further confuse the status of the issue in Virginia. Itstates:

Nothing in this chapter is intended, nor shall be construed, to limit, impair, abridge, create, enlarge, orotherwise affect, substantially or procedurally, the rights of any person in any dispute involving propertyrights, including interests in water resources, or the right of any person to damage or other relief on accountof injury to persons or property, including interest in water resources, and to maintain any action or otherappropriate proceeding therefor, except as is otherwise specifically provided in this chapter; nor to affect thepowers of the Commonwealth to initiate, prosecute and maintain actions to abate public nuisances.(204)

While there have been no cases interpreting this specific provision, it would appear to curtail, if not prohibit,landowner suits against those mining under damage waivers because it states that VaSMCRA is not in-tended to limit or create the rights of any person in property rights dis-putes. On the other hand, surfaceowners may be able to argue persuasively that their claim falls within the stated exception for matters"otherwise specifically provided in this chapter." We will have to await further judicial interpretation inVirginia, as well as in the other eastern states, to understand better the outcome of this struggle forsupremacy between common law waivers and the provisions of SMCRA and the Energy Policy Act.

§ 10.07. Support Waivers Remain Viable Against Overlying Mineral Owners.

One issue that has received little attention, and to our knowledge has not been directly addressed in thecourts, is whether SMCRA's subsidence control provisions protect interests in surface lands only, or provideprotection for the underlying strata, including underground coal seams. All indications are that SMCRA hasno impact upon the viability of waivers as they relate to owners of overlying coal seams, except as thoseprovisions might impact surface portals and other surface facilities associated with underground mining.

SMCRA specifically requires the Secretary to promulgate rules directed toward the surface effects ofunderground coal mining operations.(205) The operative provision, Section 516,(206) is replete withreferences to "surface lands," "surface disposal," "lands affected," "surface impacts," "stability of land," andother similar restrictions on surface effects; it makes no mention of underground effects. The federalsubsidence control regulations likewise include protection of the surface lands.(207)

While the issue is not addressed directly in SMCRA's legislative history, the House and Senate reports arefilled with references to the damage caused by surface coal mining, indicating that the provisions ofSMCRA regarding surface impacts of underground mines are meant to address the problems associated withunderground mining for coal that are directly manifested on land surface. The section of the House Reportaddressing this issue is entitled "Surface Impacts of Underground Mines." Similarly, the section of theSenate Report dealing with this issue is entitled "Surface Effects of Underground Coal Mining Operations."Both reports, in virtually every instance that discussed subsidence, refer to it as "surface subsidence." Theproblems that both reports mention as requiring treatment are all surface related problems. Nothing in the

reports suggests any intent to protect or otherwise affect underground coal seams or other minerals.(208)

OSM has stated that the subsidence control plan is directed only to the evaluation of surface impacts ofunderground mines, citing Section 701(28) of the Act,(209) which "specifically defines underground miningactivities regulated under the Act to include only the surface impacts incident to an underground coalmine."(210) It is apparent that, in OSM's view, SMCRA does not protect subsurface property interests notdirectly associated with the surface.

Much like SMCRA, the Energy Policy Act contains no indication that its subsidence provisions impact, orare intended to impact, the viability of subsidence waivers as they relate to overlying coal seams. On theirface, the Energy Policy Act provisions only relate to impact on dwellings and other non-commercialstructures, water supplies, and, prospectively perhaps, pipelines. The provisions are remedial only. The newSection specifically provides that nothing in it "shall be construed to prohibit or interrupt underground coalmining operations."(211) Since the Energy Policy Act provides no remedies for owners of undergroundminerals damaged by subsidence, it is unlikely that any reasonable reading of this provision could impactsupport rights between underground mineral owners.

We are not aware of any specific legislative history that might indicate in more detail the purpose of theEnergy Policy Act as it relates to subsidence of overlying coal seams. However, since it specifically addsthe subsidence provision to SMCRA, it seems appropriate to assume that the legislative intent behindSMCRA should apply equally to this new subsidence remedial provision.

One state has addressed the issue of overlying coal seams directly. Courts in Pennsylvania have interpretedits Subsidence Act,(212) which contains subsidence control language very similar to that adopted in Section516(b)(1) of SMCRA.(213) Two separate decisions have held that the legislation provides no protection tosubsidence of underground coal seams.(214) In Culp v. Consol Pennsylvania Coal Co.,(215) the court foundno reference in the legislation to anything other than "surface lands" and concluded that it afforded noprotection to subsurface owners. As stated in the subsequent case of George v. Department ofEnvironmental Resources(216) regarding the Culp decision: "We held that the legislature's use of the termsurface lands within the [Subsidence] Act constituted a conscious choice specifically not to grant subsurfaceowners protection under the Act."(217) The court reviewed the federal SMCRA regulations and found nocontrary intent there. Consequently, the court concluded that the Department of Environmental Resourceshad not erred in refusing to consider the possible effects of subsidence on George's coal seam when issuinga permit for the lower longwall mine.

In summary, it does not appear that SMCRA as enacted, as interpreted through regulations promulgatedthereunder, or as supplemented by the Energy Policy Act, is designed to, or is likely to have any impact onthe effect and viability of subjacent support and damage waivers as they apply to owners of overlying, butunderground, minerals. However, it also appears that surface improvements related to the development ofoverlying underground minerals, including such facilities as portals, roads, plants, and utilities would havethe same protection as any other surface development or improvement.

§ 10.08. Constitutional Considerations.

Through SMCRA and the Energy Policy Act, both Congress and state legislatures have sought to legislateavoidance of, repair of, and compensation for subsidence damage to surface lands and improvements.These, in turn, have spawned a host of regulatory controls. These governmental requirements inevitablyencroach on private rights enjoyed through subjacent support and subsidence damage waivers. Property andcontractual rights face contraction, and in some cases extinction, as a result of this legislation. When the

government seeks to affect these rights, its actions come under constitutional scrutiny. A host ofconstitutional considerations come into play, namely applications of the Fifth Amendment,(218) theContracts Clause,(219) and the Fourteenth Amendment,(220) as well as Due Process considerations ofvagueness. It would be beyond the scope of this Chapter to analyze the constitutionality of each federal andstate statute creating limitations on subsidence and damage waivers. The following presents constitutionalconsiderations under which a federal or state statute's application must be scrutinized.

[1]--The Broad Police Power.

An inherent power of any government is its police power to regulate private conduct in furtherance of theprotection of the health, safety, morals, or general welfare of the citizens.(221) In general, an attackerchallenging a police power regulation on constitutional grounds bears a heavy burden of proof. Theseregulations are usually accorded a strong presumption of validity.(222)

With regard to regulations concerning mining, both state and federal laws can be separated into two generalcategories: operational regulations and compensatory regulations.(223) An operational regulation, forexample, would include permit applications concerning the subsidence control plan as well as actions to betaken to prevent or minimize the effects of subsidence.(224) Compensatory regulations would include therequirement that the mine operator repair or compensate for subsidence damage to surface land orimprovements.(225)

The United States Supreme Court has upheld the general power of Congress to regulate mining underCongress' constitutional power over interstate commerce in the case of Hodel v. Virginia Surface Miningand Reclamation Association, Inc.(226) The constitutionality of regulation of subsidence-causing activitieswere also upheld by the Court in Keystone Bituminous Coal Association v. DeBenedictis.(227) The Hodeland Keystone decisions were each limited to facial attacks on operational and compensatory regulations ofsubsidence. The constitutionality of the subsidence provisions as applied to a particular mining operationremains to be tested.(228)

[2]--Takings Without Just Compensation.

Under the Fifth and Fourteenth Amendments, deprivation of "life, liberty, or property without due processof law" by either the federal or state government is prohibited.(229) A deprivation of property has beentermed a "taking" of private property. No person's private property can be taken for a public use withoutpayment of "just compensation."(230)

The analysis of a takings violation is a three-step process. The first determination is whether the rights takenare property rights protected by either the Fifth or Fourteenth Amendment. If that determination is in theaffirmative, the second determination is whether the taking legislation was enacted to further a valid publicpurpose. If it passes the public purpose test, a third test applies. If the legislation would destroy the propertyright, then the destruction must be analyzed to determine if it is the type of infringement that isconstitutionally impermissible.(231)

The Court in Hodel v. Virginia Surface Mining & Reclamation Association(232) refused to consider atakings challenge to SMCRA, finding that the controversy was not ripe for decision. At that particular time,the takings challenge was aimed at the passage of SMCRA and not at the taking of any specific property.The Court concluded that the "mere enactment" of SMCRA did not effect the taking of private property.(233)

Nevertheless, the Court left the door open for a challenge showing that the regulations "as applied to

particular parcels of land" could affect a taking. It cautioned, however, that even such an "alleged taking"was not unconstitutional "unless just compensation is unavailable."(234)

[a]--Protected Property Rights.

Although the United States Constitution protects property rights, it does not create these rights; creation isusually accomplished through state law.(235) The right to use and to enjoy natural property is a legallyprotected property right.(236) Intangibles may be afforded constitutional protection as property rights.(237)

Accordingly, contract rights have been afforded Fifth Amendment protection as a form of intangibleproperty.(238) There can be no real issue that subsidence damage waivers are protected property rights.

[b]--Public Purpose.

Absent a specific factual challenge, legislation is almost always reasonably related to a public purpose sincethe means to accomplish that purpose is usually for the legislature to determine, not the courts.(239) Wherespecific property rights are restricted, however, a court will examine more closely the relationship betweenthe means chosen to accomplish the purpose and the purpose itself.(240)

To the extent that operational regulations are intended to preserve the public interest in protecting theenvironment, the argument that they promote public purposes is stronger. Compensatory regulations, on theother hand, typically compensate particular individuals, indicating a significantly lesser public interest.(241)

The case of Pennsylvania Coal Co. v. Mahon(242) is an example of this distinction. At issue in that case wasa Pennsylvania statute known as the Kohler Act,(243) which prohibited mining in a manner that residentialstructures would be jeopardized by subsidence. It applied only if the coal and surface estates were held byseparate owners. The coal company owned the support rights, considered a separate estate underPennsylvania law.(244) The United States Supreme Court held that the Kohler Act constituted anunconstitutional taking of the coal company's support estate without compensation. It dismissed theargument that the legislation promoted a "public purpose" by noting:

So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, wecannot see that the fact that their risk has become a danger warrants the giving to them of greater rights thanthey bought.(245)

The most recent Supreme Court statement concerning the constitutionality of a subsidence control provisioncame in Keystone Bituminous Coal Association v. DeBenedictis.(246) At issue was Pennsylvania'sBituminous Mine Subsidence and Land Conservation Act of 1966.(247) Together with its supportingregulations, the Subsidence Act includes operational provisions prohibiting removal of more than 50% ofthe coal beneath certain protected structures and compensatory provisions requiring repair or compensationfor those protected structures damaged by subsidence from bituminous coal mining. The U.S. SupremeCourt concluded:

Unlike the Kohler Act, which was passed upon in Pennsylvania Coal, the Subsidence Act does not merelyinvolve a balancing of the private economic interests of coal companies against the private interests of thesurface owners. The Pennsylvania legislature specifically found that important public interests are served byenforcing a policy that is designed to minimize subsidence in certain areas.(248)

The Court rejected the contention that the compensatory requirements served private interests more thanpublic ones, concluding that they served as a deterrent to causing subsidence damage at all, its primary

purpose.

Although, at first blush, these two Supreme Court decisions -- Keystone and Pennsylvania Coal -- appear atodds, there were underlying factual differences that can justify the different results. Both acts were similarto the extent that they regulated mining that caused subsidence damage to surface improvements. TheKohler Act, however, exempted operations when a person owned both the mineral and the surfaceestates.(250) Under the Subsidence Act, on the other hand, neither surface owners nor mineral owners couldwaive the requirements.(251) Since the challengers of Subsidence Act had suggested no alternative methodsthe state could use to achieve its purposes, the Court viewed the lack of alternatives as further support for itsdetermination that the stated public purposes were satisfactory.(252)

[c]--Reasonable and Permissible Infringement.

Whether or not a legislative infringement is reasonable, or whether it is unreasonably intrusive, is anecessarily amorphous test. In recent years, the test has focused on three primary factors. As articulated inKaiser Aetna v. United States,(253) the three factors are (1) the character of the legislation, (2) its economicimpact on the property owner, and (3) its interference with the reasonable investment-backed expectationsof the property owner.(254) It is not always necessary to show violation of all three factors to show a"taking."(255)

Governmental action in "takings" cases is typically equated with the direct appropriation of private property,often referred to as the "physical invasion" theory. When the government action results in the actualoccupation of private land, courts frequently find a taking.(256) When the character of legislation is to makeeconomic adjustments to promote the public good, it will more likely survive a "takings" challenge.(257)

Even though a statute diminishes property value or greatly reduces rights in certain property, it typically willbe found constitutionally permissible if its character is to promote the health, safety, and welfare of thepublic in a reasonable manner.(258)

Although an economic regulation may be found unreasonable where the property owner is denied alleconomic use of the property, the Supreme Court has relied on this proposition to strike down agovernmental regulation only four times. All four cases involve situations where the government sought useof private property for its own purposes.(259) On the other hand, statutes causing "substantial diminution" ofprivate property values have often been sustained against "takings" challenges.(260)

An appropriate example of this takings analysis in a mining situation is the case of Whitney Benefits, Inc. v.United States.(261) Whitney Benefits brought an inverse condemnation action seeking $300 million for lostcoal. Whitney argued that SMCRA's prohibitions against mining in alluvial valley floors(262) constituted ataking without compensation under the three-prong test of Kaiser Aetna. The "economic impact" factor wassatisfied by the Claims Court's determination that a market existed for the coal and that there was evidencethat a mine operator would be able to overcome any physical obstacles in mining.(263)

With respect to the investment-backed expectation factor, the court noted that the plaintiff/lessee PeterKiewit Sons' Co. (PKS), had already paid over $500,000.00 in advance royalties for the right to mineWhitney's coal. Furthermore, PKS had invested at least $1,500,000.00 in land studies and permitapplications. The land studies gave credible estimates of the mineable tons of coal and established that areasonable return on investment would be obtained from the mine.(264)

Under the third factor, the character of the government's action, the Court found that the government had

denied Whitney all economically viable use of its property. The United States argued that SMCRA stillallowed for such economically viable uses as farming the surface. Whitney and PKS neutralized thisargument by showing that they had bought the surface rights only to mine the coal more conveniently andproductively. Since, under Wyoming law, mineral and surface estates are separate and the entire impact wason the mineral estate, the court was persuaded that the alternative uses of the surface had no bearing uponthe question of whether the entire mineral estate had been taken.(265) This holding was specifically affirmedby the Federal Circuit on appeal.(266)

Keystone undertook a somewhat similar, but perhaps more stringent, analysis. There, the Supreme Courtconcluded that a regulation "can effect a taking" if it either (1) "does not substantially advance legitimatestate interests" or (2) "denies an owner economically viable use of his land."(267) The Keystone Court founda substantial advancement of legitimate state interests since the Subsidence Act applied in all circumstances,whether or not the mineral and surface were owned by the same party. The Court also concluded that themineral owner was not denied the economically viable use of its land since the Subsidence Act required lessthan two percent of the coal in issue to be left in place.(268) A critical consideration was that the plaintiffshad not claimed that the Subsidence Act made it commercially impracticable for them to mine theircoal.(269)

For the same reason, the claim of Old Ben that restoration and repair requirements of the Illinois statecounterpart regulation to OSM's Section 817.121(c) constituted an unlawful taking of its otherwise validsurface support waivers was rejected in Old Ben Coal Co. v. Department of Mines and Minerals.(270) Indenying the takings claim, the Illinois appellate court found the Illinois SMCRA provision more like theSubsidence Act in Keystone than the Kohler Act in Pennsylvania Coal. It concluded that the Illinoislegislation did not simply constitute a private benefit statute but, instead, demonstrated by legislativedeclaration its public interest in health, safety, and general welfare.(271) Finally, the court noted that "OldBen fails, as did plaintiff in Keystone, to allege any facts or advance any argument from which we couldconclude that Old Ben will be deprived of the economic use of its property."(272)

[d]--A "Takings" Analysis of SMCRA and Energy Policy

Act Provisions.

It would appear that no facial "takings" challenge is likely to succeed against the operational andcompensatory regulations of SMCRA or the compensatory regulations of the Energy Policy Act. If onewere to be made, it appears the most likely challenge would be to the provisions of each that give theoperator the option of either repairing damage to structures or compensating for that damage. To the extentthat the operator can simply pay for the damage caused, with no prohibition against causing the damage inthe first place and no requirement that the damage be repaired, these provisions are much more like theprivate benefit ruled unconstitutional in Pennsylvania Coal than the public purpose upheld in Keystone. It isinteresting to note that in 1987, when the Secretary of the Interior published Section 817.121(c) requiringrepair of material damage to structures or compensation for diminution in value, but only to the extentrequired by state law, he recognized the lack of public interest in overriding subsidence waivers as theymight relate to buildings and structures. The Secretary explained his decision to leave questions concerningthe repair of structures to state law as follows:

Where an underground mine operator purchases from the surface owner the right to subside the land, or inconveying surface property reserves the right to subside the surface, the individual's property rights areprotected, but the long term public interest in the land is not protected. Thus, § 817.121(c)(1) functions toprevent this injury to the land by assuring that in all cases, irrespective of private contract, this valuable

natural resource will be restored to its premining capabilities, to the extent technologically and economicallyfeasible. On the other hand, no environmental or public interest exists in protecting a building or structurewhere its present or past owner has either conveyed or waived a right to subjacent support.(273)

Notwithstanding the plausibility of this argument, it appears to have been specifically rejected in Keystone,based upon the court's conclusion that the requirement either to repair or to assume financial responsibilitywould serve as a deterrent from causing the damage at all, thereby serving the primary goal of subsidenceprevention, a valid public purpose. Based on Keystone, and absent some movement on this issue from theSupreme Court, it is unlikely that this facial attack would succeed.

Given the current state of the law, the only "takings" claim that is realistic and likely to succeed is a claimthat the impact of the subsidence control or remediation requirements is to render an otherwiseeconomically mineable reserve commercially or economically unmineable. Even Keystone recognized that aregulation can effect a taking if it denies an owner economically viable use of his land.(274) If the mineralowner can demonstrate, as in Whitney Benefits, that: (1) the coal would otherwise have been economicallymineable at a profit, so that the economic impact of the regulation is economically to deny that benefit; (2)the owner has made an investment in the reserve or its development with the expectation that the coal couldbe mined without the burden of the regulation (which may be difficult for owners or operators who maketheir investment after enactment of the regulation); and (3) the character of the government action rendersuseless all economic viability of the coal, it is likely that a takings claim would succeed.

[3]--The Contracts Clause.

The Contracts Clause holds that "no state shall ... pass any . . . law impairing the obligation ofcontracts."(275) It has no application to the federal government.(276) Consequently, a claim ofunconstitutionality under this clause can be asserted only against state legislation and regulation.

As noted by Justice Blackman in United States Trust Co. v. New Jersey,(277) the leading case "in the modernera of Contracts Clause interpretation" is Home Building and Loan Association v. Blaisdell.(278) In Blaisdell,the Minnesota legislature declared a state of emergency in 1933 due to the economic depression andprovided a means for postponing mortgage foreclosures and foreclosure sales and for lengtheningmortgagors' redemption periods after foreclosure, in an effort to prevent massive foreclosures and thedislocation of large portions of the population into homelessness.(279) In a sharply divided decision, theSupreme Court upheld the statute by a 5-4 vote. In so doing, the Court identified five factors which justifiedMinnesota's legislative action: (1) the statute was enacted to address an emergency declared by the state;(280)

(2) the statute addressed a social problem and "was not for the mere advantage of particularindividuals;"(281) (3) the state legislature had adopted a means well suited to address the situation;(282) (4)the enforcement of obligations was postponed for only a temporary period that was specified;(283) and (5)the legislation was temporary.(284)

The Blaisdell "test" lay dormant until 1977, when it was revisited by the Court in the case of United StatesTrust Co. v. New Jersey.(285) In United States Trust, the Court noted that the criteria considered in Blaisdelldid not constitute a test that must be met in every case. In a footnote, the Court stated that, despite decisionssince Blaisdell that had struck down non-emergency or permanent state action, other cases had upheldsimilar types of state legislation.(286) The Court concluded that, while the existence of an emergency and theduration of legislation were factors worth considering, they were not absolute requirements.(287) The Courtcorrectly noted that even Blaisdell had called for less than a literal interpretation of the Contracts Clause,which on its face, bars any state action impairing contracts. The Court ruled that the Blaisdell "test," as it

existed in light of intervening precedent, had to be tempered by a "policy of legislative deference"articulated in cases such as East New York Savings Bank v. Hahn.(288) However, when a state enactslegislation impairing contracts to which the state itself is a party, a stricter scrutiny must be applied, and nolegislative deference is appropriate.(289) The obvious reason for this decision is that a state could uselegislation to abrogate its own contracts when, in hindsight, it determines that it had made a bad bargain.

In Keystone, the Court was quick to rely on this legislative deference in its examination of Pennsylvania'sSubsidence Act. In addition to their takings claim, the coal owners asserted that the Contracts Clause hadbeen violated because the state legislation impaired their ability to enjoy the benefits of their support andsubsidence damage waivers. The Court first identified the contractual right impaired as a waiver of damagefor subsidence, and agreed that the statute did operate as "a substantial impairment of a contractualrelationship."(290) In a footnote, the Court even observed that, while the record did not contain sufficientfacts to determine the severity of the impairment, it made no difference because the Subsidence Actwithstood scrutiny "even if it is assumed that it constitutes a total impairment."(291)

The Court then examined Pennsylvania's justifications for what the Court accepted as a total impairment. Iteasily concluded that Pennsylvania had a legitimate and strong public interest in preventing subsidenceharm. That, however, was not enough, the Court said. A court must also satisfy itself that the legislativeadjustment of contractual rights is based "upon reasonable conditions" and "of a character appropriate to thepublic purpose justifying [the legislation's] adoption."(292) The Keystone Court nevertheless rejected theimpairment of contract claim, stating as follows:

The Commonwealth has determined that in order to deter mining practices that could have severe effects onthe surface, it is not enough to set out guidelines and impose restrictions, but that imposition of liability isnecessary. By requiring the coal companies either to repair the damage or to give the surface owner funds torepair the damage, the Commonwealth accomplishes both deterrence and restoration of the environment toits previous condition. We refuse to second guess the Commonwealth's determinations that these are themost appropriate ways of dealing with the problem. We conclude, therefore, that the impairment ofpetitioners' right to enforce the damages waivers is amply justified by the public purposes served by theSubsidence Act.(293)

As long as Keystone remains the law of the land,(294) it will be difficult for any mineral owner or mineoperator who owns a subsidence damage waiver to contend successfully that either state legislation andregulations promulgated under SMCRA or the Energy Policy Act subsidence remedy provisions (to theextent they may be adopted by the various states) unconstitutionally impair the contract rights representedby that waiver. Keystone may herald a new decline for the Contracts Clause, or it may simply be anaberration from the Contracts Clause evaluations laid down over the years in cases such as Blaisdell andUnited States Trust.(295) In 1990, an Illinois appellate court did follow, without hesitation, the Keystonecourt's analysis of the Contracts Clause in rejecting Old Ben's contention that the Illinois subsidence repairor restoration regulation unlawfully impaired its contractual waivers of subjacent support.(296)

One further consideration may be worthy of note. Some states have adopted an impairment of ContractsClause in their state constitutions.(297) Any state with this type of provision may have its own independentContracts Clause analysis, separate and apart from the Keystone Court's analysis of the federal constitution.Then, the analysis and, consequently, the result may be different.

[4]--Other Constitutional Considerations.

[a]--Equal Protection.

The Equal Protection Clause of the Fourteenth Amendment states that "[n]o state shall . . . deny any personwithin its jurisdiction equal protection of the laws."(298) This obligation applies to the federal governmentunder the Due Process Clause of the Fifth Amendment.(299) Operational and compensatory enactmentsregarding subsidence are by and large economic regulations involving no fundamental interest, suspectclassification, or important governmental interest.(300) Therefore, the statutes are subject to the lowest levelof judicial scrutiny, namely the rational basis test.(301) In short, if the state is deemed to have a permissiblepurpose and the classification bears a rational relationship to that purpose, no constitutional violationoccurs.(302)

Arguably, an Equal Protection challenge regarding subsidence control and remediation measures is veryweak. For a statute to be deemed impermissible, a court must find that the governing body "was notpursuing a permissible purpose when it created the challenged classes or because the classes it created werenot related to the achievement" of a legitimate interest.(303) One potential problem in applying the "rationalbasis test" to the SMCRA and Energy Policy Act provisions is that they apply to only one class of mineralowners -- underground coal miners. The subsidence control provisions do not pertain to any minerals otherthan coal. From the standpoint of the owner of surface improvements, there is another questionableclassification. An owner of any "occupied residential dwelling and structures related thereto" would beafforded a remedy for material subsidence damage but the same damage to an unoccupied surfaceimprovement would not result in compensation for its owner. Likewise, the owner of a commercial buildinghas no remedy while the owner of a non-commercial building does. Even under the low level judicialscrutiny that would be employed, there may be difficulty justifying these dichotomies.

[b]--Vagueness.

A statute which presents terms "so vague that [persons] of common intelligence must necessarily guess at itsmeaning and differ as to its application, violates the first essential of due process of law."(304)

The subsidence control legislation and regulations represented by SMCRA and the Energy Policy Actcertainly do present ambiguities. In some respects, there may be arguments that these ambiguities are sovague that one must guess at their meaning and application. However, we are not aware of any priorconstitutional attack on these provisions for vagueness.

If a void-for-vagueness argument were pursued, the most likely target would be the proviso in SMCRA'sSection 516(b)(1):(305) "Provided That nothing in this subsection shall be construed to prohibit the standardmethod of room-and-pillar mining." This same proviso is included, in substance, in Section 817.121(a) ofOSM's regulations.(306) Does this mean an operator using the "standard method of room-and-pillar mining"is to be treated in the same way as the planned subsidence operator and, like the planned subsidenceoperator, excused from the requirements to prevent subsidence causing material damage? Or does it meanthat the room-and-pillar method can be used only to the extent that it does not cause material subsidencedamage?

Similarly, the Energy Policy Act's supplement to SMCRA raises ambiguities. Remedies are provided formaterial damage from subsidence to an "occupied residential dwelling and structures related thereto, or non-commercial building." It follows that commercial buildings and unoccupied residential dwellings areexcluded from this remedial protection. But, would a commercial apartment building be afforded a remedyas an "occupied residential dwelling" or be denied a remedy as a "commercial building?" What is thedifference between an unoccupied residential dwelling and a non-commercial building? These facialambiguities provide areas for potential challenges to the subsidence control and compensation provisions ofboth SMCRA and the Energy Policy Act.

§ 10.09. The Remaining Viability of Subjacent Support and

Subsidence Damage Waivers.

Under what circumstances do support waivers remain viable, given the common law restrictions on theirexercise, the legislative and regulatory encroachments imposed by SMCRA and state primacy enactmentsthereunder, and, finally, the recent Energy Policy Act encroachments? Just what remains in the aftermath ofthe regulatory storm? We list below some suggested conclusions. Most are tempered by various conditionsand all "forecasts" are, of course, qualified by editorial privilege.

[1]--Waivers Remain Viable Against Overlying Mineral Owners.

Support waivers that were valid under common law appear to remain valid and undiminished to the extentthey protect against claims of overlying mineral owners (as opposed to surface owners). Both SMCRA andthe Energy Policy Act protect only "surface lands" and improvements thereon. The Secretary of the Interioris authorized to promulgate rules directed only toward the "surface effects" of underground coal mineoperations.(307) As a result, it does not appear that SMCRA, as enacted, as interpreted through regulations,or as supplemented by the Energy Policy Act, is likely to have any impact on the viability of subjacentsupport and damage waivers as they pertain to owners of overlying underground minerals. Of course,surface improvements related to the development of the overlying minerals are likely to have the sameprotection as any other surface development and improvements.(308)

[2]--Waivers for Longwall Mining Remain Viable.

Since longwall mining constitutes a planned subsidence technique, its use is specifically sanctioned bySMCRA and is not prohibited by the supplemental provisions added in the Energy Policy Act. Therefore,subject to the qualifications mentioned below, a valid waiver of support will generally allow the longwalloperator to proceed with longwall mining and subsidence of the overlying strata and surface.(309)

This right is, nevertheless, diminished through SMCRA and Energy Policy Act provisions. First, underSection 516(c) of SMCRA,(310) even the longwall operator is not permitted to mine adjacent to industrial orcommercial buildings or impoundments or under urbanized areas if it creates imminent danger toinhabitants.(311) If the scope of Section 817.121(d)(312) of OSM's regulations withstands scrutiny, thelongwall operator would be prohibited from mining so as to cause subsidence under public buildings andimpoundments wherever located, whether or not inhabitants are placed in imminent danger.(313) Finally,subject a possible exception,(314) the longwall operator with a subsidence waiver generally has the duty (1)to correct material damage resulting from subsidence caused to surface lands in every state;(315) (2) to repairor compensate for material damage to occupied residential dwellings and noncommercial buildings in everystate; and (3) to repair or compensate for material damage to any other structures or surface facilities inevery state except West Virginia and, possibly, Ohio.(316)

[3]--Protection Afforded to Room-and-Pillar Operators.

The status of room-and-pillar mining remains in doubt under SMCRA. If it is eventually determined thatroom-and-pillar mining is accorded the same protection as planned subsidence techniques like longwallmining, then the immediately preceding comments(317) would apply equally to room-and-pillar mining. If itis eventually determined that room-and-pillar mining is allowed only to the extent it does not otherwiseviolate the SMCRA provisions, the use of that technique will afford no added benefit.

[4]--Remedial Provisions May Not Be Applicable to Planned

Subsidence Operators.

For longwall miners, and possibly for room-and-pillar operators as well, Section 817.121(c),(318) requiringcorrection of material damage to land and structures, may remain subject to attack. In National WildlifeFederation v. Hodel,(319) the court upheld the regulation requiring the operator to correct material damage,relying upon Section 516(b)(1),(320) which requires the mine operator to "maintain the value and reasonablyforeseeable use" of the land subject to subsidence. However, an underground operator who is employing thelongwall technique is clearly not subject to that requirement.(321) There is room for argument that a room-and-pillar operator is also not subject to the requirement. As a result, the remedial provisions of Section817.121(c) would appear to be beyond the authority granted by the legislation.

However, to the extent the requirement to repair or compensate extends to occupied residential dwellings,related structures, or noncommercial buildings, this contention no longer applies. The authority is nowgranted through the supplemental SMCRA provisions provided by the Energy Policy Act.(322)

[5]--A Right to Subside Undeveloped Land May Not Be

Impaired.

Under SMCRA, only "material" subsidence damage is to be avoided and corrected. The existence of cracksor lowering of unoccupied and rugged hillsides may not constitute material damage. Under thesecircumstances, the support waiver would remain viable in permitting the operator to mine and subside.Without it, even absent material damage, the operator would have an absolute duty to prevent subsidenceand could be enjoined from mining in a manner that causes subsidence.

[6]--Constitutional Challenges.

Under some circumstances, the ownership of an otherwise valid subsidence waiver may give rise to asuccessful constitutional challenge. If duties to repair or compensate exist under either SMCRA or theEnergy Policy Act and those duties increase the cost of mining to the extent of rendering the reservecommercially unmineable, the existence of the waiver may serve as the basis for a claim of anunconstitutional taking of private property rights without just compensation.(323) This may be particularlytrue where the mine and overlying surface improvement configurations are such that substantial blockswould have to be left for public facilities, churches, schools, hospitals, impoundments, water supply sources,and, perhaps in the near future, pipelines.

[7]--Status of Waivers in Some Eastern States.

[a]--Illinois.

Waivers in Illinois seem less effective than in any of the other eastern states. Illinois seems to be at theopposite end of the spectrum from West Virginia. Both state and federal courts in Illinois have refused touphold waivers of support rights to the extent that they conflict with the repair, restoration, andcompensation provisions of SMCRA and its Illinois counterpart.(324) As a consequence, the only remainingviability of waivers in Illinois may be for operators using longwall or other planned subsidence techniques,who would have the right to subside but, at the same time, would remain subject to the repair, restoration,and compensation provisions. In addition, Illinois operators may be able to enjoy some of the otherremaining general benefits of waivers.

[b]--Ohio.

Ohio may be in a slightly different posture than other eastern states with respect to duties to repair orcompensate for subsidence damage to structures. Except for occupied dwellings and noncommercialbuildings covered under the Energy Policy Act, supremacy between the repair and compensation provisionsof SMCRA and subsidence damage waivers in Ohio will turn on the interpretation of the Ohio regulationwhich pro-vides: "Any agreement between the operator and a surface owner which addresses the repair ofor the compensation for damage to the surface owner's structures shall take precedence over the provisionsof this rule and the provisions of this rule shall not apply to any damage to such structures."(325) Issueslikely to arise under this provision include whether the waiver must specifically refer to structures; whetherthe agreement must specifically refer to repair or compensation (e.g., would a waiver of "any duty toprovide any support for the surface or structures thereon" suffice); and whether the waiver must be betweenthe current operator and surface owner, or whether an agreement between predecessors in title will suffice.With regard to occupied dwellings and noncommercial buildings, the Energy Policy Act may pre-empt theOhio regulation.

[c]--Pennsylvania.

In Pennsylvania, it might appear that a waiver of support rights would fare better under a constitutionaltakings analysis than in most states, since the support rights constitute a third and separate estate in theproperty. Consequently, regulations rendering worthless a waiver of those rights would constitute a takingof the entire property interest. However, that argument was rejected in Keystone. Except for the Illinoisenactments, the subsidence legislation and regulations in Pennsylvania are the only ones to have beenconstitutionally tested and they have passed that test.(326) As a result, support waivers in Pennsylvania havevirtually no remaining viability. Subsidence rights in that state are now essentially dictated by the terms ofthe Subsidence Act.(327)

[d]--West Virginia.

As of the time of this writing, waivers in West Virginia are certainly more viable than in any other easternstate. The existing common law in West Virginia fully recognizes both express waivers of support and ofliability for subsidence damage and implied waivers under circumstances where the mining clause in theseverance document permits the mining of "all coal."(328) Most importantly, in Smerdell, the United StatesDistrict Court for the Northern District of West Virginia concluded that SMCRA and WVSMCRA did notrender invalid the support waivers recognized under common law. In Giza, the Fourth Circuit summarilyaffirmed an unpublished decision substantially identical to Smerdell.(329) State courts in West Virginia havenot yet adopted this interpretation but will likely defer to it.

[8]--A Valid Subsidence Waiver Will Not Currently Foreclose

Application of Remedial Regulations in the Other Eastern

States.

In the other eastern states -- Alabama, Indiana, Kentucky, and Virginia -- the application of remedialsubsidence regulations against holders of otherwise valid waivers is uncertain. Operators holding waiversvalid under state common law would be exempt from the requirement of OSM's Section 817.121(c)(2) torepair material damage to structures or compensate owners for their diminution in value,(330) unless thosestructures constitute "occupied residential dwellings and structures related thereto, or noncommercialbuildings." Then, repair and compensation is due under the SMCRA provisions added by the Energy Policy

Act. However, in these states, Section 817.121(c)(2), together with its exemption for applicableprovisions of state law, does not apply. Those states have adopted their own remedial regulations, which donot currently include any exemption for pre-existing legal rights.(332) Unless the existing regulations arechanged in these states, either voluntarily by the appropriate administrative authorities or involuntarilythrough challenges to the regulations as more stringent than SMCRA (a state imposed requirement in somestates), repair costs or compensation damages will generally remain due despite the existence of a waiver.

1. * With sincere gratitude, the author wishes to acknowledge the substantial contributions made by Marco M. Rajkovich, Jr.,Christine R. Emison, John C. Miller, and Charles D. Webb, Jr, Associates with Wyatt, Tarrant & Combs, to this Chapter.

2. 1. Marquette Cement Mining Co. v. Oglesby, 253 F. 107, 111 (N.D. Ill. 1918).

3. 2. Thornberry v. Buchanan County Coal Corp., 323 F.2d 517 (6th Cir. 1963); Culp v. Consol Pa. Coal Co., No. 87-1688, 1989U.S. Dist. LEXIS 8193, 1989 WL 101553 (W.D. Pa. May 4, 1989).

4. 3. Harris v. Ryding, 5 M. & W. 60, 151 Eng. Rep. 27 (Ex. D. 1839).

5. 4. Bibby v. Bunch, 58 So. 916 (Ala. 1912); Woodward Iron Co. v. Mumpower, 28 So. 2d 625 (Ala. 1946); Wilms v. Jess, 94 Ill.464 (1880); Ciuferi v. Bullock Mining Co., 73 N.E.2d 855 (Ill. Int. App. Ct. 1947); Jackson Hill Coal & Coke Co. v. Bales, 108N.E. 962 (Ind. 1915); Nisbet v. Lofton, 277 S.W. 828 (Ky. 1925); West Ky. Coal Co. v. Dilback, 294 S.W. 478 (Ky. 1927);Piedmont & Georges Creek Coal Co. v. Kearney, 79 A. 1013 (Md. 1911); Burgner v. Humphrey, 41 Ohio St. 340 (1884); OhioCollieries Co. v. Cocke, 140 N.E. 356 (Ohio 1923); Gumbert v. Kilgore, 6 A. 771 (Pa. 1886); Noonan v. Pardee, 50 A. 255 (Pa.1901); Stonegap Colliery Co. v. Hamilton, 89 S.E. 305, 310 (Va. 1916); Griffin v. Fairmont Coal Co., 53 S.E. 24 (W. Va. 1906);Winnings v. Wilpen Coal Co., 59 S.E.2d 655 (W. Va. 1950); Stamp v. Windsor Power House Coal Co., 177 S.E.2d 146 (W. Va.1970).

6. 5. Island Creek Coal Co. v. Rodgers, 644 S.W.2d 339 (Ky. Int. App. Ct. 1983); Bibby v. Bunch, 58 So. 916 (Ala. 1912).

7. 6. Island Creek Coal Co. v. Rodgers, 644 S.W.2d 339, 344 (Ky. Int. App. Ct. 1983).

8. 1. Eastwood Lands, Inc. v. United States Steel Corp., 417 So. 2d 164 (Ala. 1982); Wilms v. Jess, 94 Ill. 464 (1880); Paul v.Island Coal Co., 88 N.E. 959 (Ind. App. 1909); Case v. Elk Horn Coal Corp., 276 S.W. 573 (Ky. 1925); Kellert v. Rochester & P.Coal & Iron Co., 74 A. 789 (Pa. 1909); Madden v. Lehigh Valley Coal Co., 61 A. 559 (Pa. 1905); Stonegap Colliery Co. v.Hamilton, 89 S.E. 305 (Va. 1916); Stamp v. Windsor Power House Coal Co., 177 S.E.2d 146 (W. Va. 1970).

9. 2. Smith v. Glen Alden Coal Co., 32 A.2d 227 (Pa. 1943).

10. 3. Lenox Coal Co. v. Duncan-Spangler Coal Co., 109 A. 282 (Pa. 1920).

11. 4. See J.J. Lewis, Note, "Severance Deed Waivers of the Surface Estate's Right to Subjacent Support as a Basis for LongwallMining Rights," 6 J. Min. L. & Pol'y 309 (1990-91).

12. 5. Ball v. Island Creek Coal Co., 722 F. Supp. 1370, 1372 (W.D. Va. 1989); Wells v. American Elec. Power Co., 548 N.E.2d995, 998 (Ohio Int. App. Ct. 1988); Culp v. Consol Pa. Coal Co., No. 87-1688, 1989 U.S. Dist. LEXIS 8193, 1989 WL 101553(W.D. Pa. May 4, 1989); Smerdell v. Consolidation Coal Co., 806 F. Supp. 1278, 1285 (N.D. W. Va. 1992).

13. 6. Ball v. Island Creek Coal Co., 722 F. Supp. 1370, 1373-4 (W.D. Va. 1989); Wells v. American Elec. Power Co., 548N.E.2d 995, 999 (Ohio Int. App. Ct. 1988); Culp v. Consol Pa. Coal Co., No. 87-1688, 1989 U.S. Dist. LEXIS 8193, 1989 WL101553 (W.D. Pa. May 4, 1989).

14. 7. E.g. , Stewart v. Chernicky, 266 A.2d 259 (Pa. 1970); Phipps v. Leftwich, 222 S.E.2d 536, 542 (Va. 1976).

15. 8. Ball v. Island Creek Coal Co., 722 F. Supp. 1370, 1373 (W.D. Va. 1989).

16. 9. Wells v. American Elec. Power Co., 548 N.E.2d 995, 999 (Ohio Int. App. Ct. 1988).

17. 10. Id.

18. 11. Phipps v. Leftwich, 222 S.E.2d 536, 541 (Va. 1976).

19. 12. Id.

20. 13. Phillips v. Old Ben Coal Co., No. 5-89-0127, slip op. at 9, 1991 WL 4720, 1991 Ill. App. Lexis 72 (Ill. Int. App. Ct. Jan.18, 1991) (vacated April 1, 1991). The court's factual assumption that longwall mining produces a greater subsidence burden is, atbest, subject to debate and, at worst, in error. Many mining engineers believe the subsidence from longwall mining is less damagingthan room-and-pillar mining, both to overlying coal seams and to the surface, because it is predictable, immediate, and less stressfulto overlying strata due to the relative lack of remnant coal pillars. A similar conclusion was reached by the Comptroller General of theUnited States in a 1979 report given in response to a request from Congressmen Paul Simon and Morris Udall. The report observedthat "[g]overnment and industry officials believe that, when possible, calculated mining techniques using total extraction miningmethods with mine roof collapse followed by surface development are the optimum subsidence damage prevention procedures.Longwall mining achieves the highest extraction rate with essentially concurrent overburden collapse." See "Alternatives to ProtectProperty Owners from Damages Caused by Mine Subsidence," General Accounting Office, CED-79-25, p. 26 (February 14, 1979).The U.S. District Court for the Western District of Pennsylvania also recognized this effect in enforcing a subsidence damage waiverrelied upon by a longwall mine operator, noting that "longwalling is universally recognized as preferable, because it is safer, moreeconomical, and predictable." Culp v. Consol Pa. Coal Co., No. 87-1688, slip opinion at p. 13 1989 U.S. Dist. LEXIS 8193, 1989WL 101553 (W.D. Pa. May 4, 1989).

21. 14. Phillips v. Old Ben Coal Co., No. 5-89-0127, slip opinion at 9, 1991 WL 4720, 1991 Ill. App. Lexis 72 (Ill. Int. App. Ct.Jan. 18, 1991) (vacated April 1, 1991).

22. 15. Tallman v. Eastern I. & P. R. Co., 41 N.E.2d 537 (Ill. 1942).

23. 16. 74 A. 789 (Pa. 1909).

24. 17. Id. at 790.

25. 18. Id. at 789.

26. 19. 102 A.2d 893 (Pa. 1954).

27. 20. Id. at 894, 897.

28. 21. Griffin v. Fairmont Coal Co., 53 S.E. 24, 25 (W. Va. 1906).

29. 22. Simmers v. Star Coal & Coke Co., 167 S.E. 737, 738 (W. Va. 1933).

30. 23. Hall v. Harvey Coal & Coke Co., 108 S.E. 491 (W. Va. 1921).

31. 24. Id. at 492.

32. 25. Id. at 493.

33. 26. Winnings v. Wilpen Coal Co., 59 S.E.2d 655 (W. Va. 1950).

34. 27. Id. at 657.

35. 28. Id. at 661-62.

36. 29. 249 S.W.2d 745, 746 (Ky. 1952).

37. 30. 323 F.2d 517 (6th Cir. 1963).

38. 31. Id. at 517.

39. 32. Id.

40. 33. Id. at 518.

41. 34. 170 N.E. 379 (Ohio Int. App. Ct. 1929).

42. 35. 548 N.E.2d 995 (Ohio Int. App. Ct. 1988).

43. 36. Paull v. Island Coal Co., 88 N.E. 959, 961 (Ind. Int. App. Ct. 1909).

44. 37. Tankersley v. Peabody Coal Co., 195 N.E.2d 402 (Ill. Int. App. Ct. 1964), aff'd in part and rev'd in part, 202 N.E.2d 498(Ill. 1964).

45. 1. Elk Horn Coal Corp. v. Johnson, 249 S.W.2d 745 (Ky. 1952).

46. 2. Case v. Elk Horn Coal Corp., 276 S.W. 573, 574 (Ky. 1925).

47. 3. Elkhorn Coal Corp. v. Yonts, 262 S.W.2d 384 (Ky. 1953); Sentry Royalty Co. v. Kimmel, 461 S.W.2d 76 (Ky. 1970); Ricev. Stapleton, 502 S.W.2d 522 (Ky. 1973).

48. 4. 461 S.W.2d 76 (Ky. 1970).

49. 5. Id. at 77.

50. 6. 53 S.E. 24 (W. Va. 1906).

51. 7. Id. at 30.

52. 8. 177 S.E.2d 146 (W. Va. 1970).

53. 9. Id. at 150.

54. 10. 375 S.E.2d 814 (W. Va. 1988), discussed more fully in text, infra, at § 10.06[1][a].

55. 11. Id. at 816.

56. 12. 610 F. Supp. 131 (S.D. Ill. 1985), clarified 612 F. Supp. 1204 (S.D. Ill. 1985), discussed more fully in text, infra at § 10.06[2][a].

57. 13. 417 So. 2d 164 (Ala. 1982).

58. 14. 132 So. 2d 581 (Ala. 1961).

59. 15. Eastwood Lands, 417 So. 2d at 168 (citing Republic, 132 So. 2d 581).

60. 16. Id. at 169.

61. 17. 507 So. 2d 922 (Ala. 1987).

62. 18. Id. at 924.

19. Id. at 925.

64. 20. Id.

65. 1. Surface Mining Control & Reclamation Act of 1977, as amended, 30 U.S.C §§ 1201 ­ 1328 (1988 & Supp. II 1990).

66. 2. 30 U.S.C. § 1291(28).

67. 3. 30 U.S.C. § 1266(a).

68. 4. 30 U.S.C. § 1201(b).

69. 5. 30 U.S.C. § 1202(b), (k).

70. 6. 30 U.S.C. § 1266.

71. 7. The Secretary shall promulgate rules and regulations directed toward the surface effects of underground coal miningoperations, embodying the following requirements and in accordance with the procedures established under Section 501 of this Title[30 U.S.C. § 1251]: Provided, however, That in adopting any rules and regulations the Secretary shall consider the distinctdifferences between surface coal mining and underground coal mining . . ..

30 U.S.C. § 1266(a).

72. 8. 30 U.S.C. § 1266(b)(1).

73. 9. See text, infra, at § 10.04[2][b].

74. 10. Longwall mining is a planned subsidence technology. 1977 U.S.C.C.A.N. 658. Its use was specifically contemplated in lieuof subsidence prevention. H. Rep. No. 95-218, 95th Cong., 1st Sess. 125 & 126 (1977); S. Rep. No. 95-128, 95th Cong., 1st Sess.50 & 184 (1977).

75. 11. In National Wildlife Fed'n v. Lujan, 733 F. Supp. 419, 427 (D.D.C. 1990), the court stated: "If Congress had merely wantedoperators to prevent subsidence, it would not have added the additional words `causing material damage.' This shows that preventionof material damage is the object of the clause." See also, National Wildlife Fed'n v. Lujan, 928 F.2d 453, 455 (D.C. Cir. 1991) ("TheSMCRA directs the Secretary to promulgate rules to prevent material damage from subsidence;" citing 30 U.S.C. § 1266(a)).

76. 12. 48 Fed. Reg. 24,638, 24,643 (1983).

77. 13. Section 516(c) entitled "Suspension of underground coal mining operations in urbanized areas," provides:

In order to protect the stability of the land, the regulatory authority shall suspend underground coal mining under urbanized areas,cities, towns, and communities adjacent to industrial or commercial buildings, major impoundments, or permanent streams if he findsimminent danger to inhabitants of the urbanized areas, cities, towns, and communities.

30 U.S.C. § 1266(c).

78. 14. 30 C.F.R. §§ 710 ­ 725 (1992).

79. 15. 30 C.F.R. §§ 730 ­ 736.25 (1992).

80. 16. 30 C.F.R. § 717 (1979).

81. 17. 42 Fed. Reg. 62,692 (1977) (publishing the final rule codified at 30 C.F.R. § 717.17).

82. 18. In Re Surface Mining Reg. Litig., 452 F. Supp. 327, 334-336 (D.D.C. 1978).

83. 19. 44 Fed. Reg. 14,903 (1979), 30 C.F.R. §§ 784.20, 817.121, 817.122, 817.124, & 817.126 (1979).

84. 20. 30 C.F.R. § 817.121 (1979).

85. 21. 30 C.F.R. § 817.122 (1979).

86. 22. 30 C.F.R. § 817.124 (1979).

87. 23. 30 C.F.R. § 817.126 (1979).

88. 24. 30 C.F.R. § 784.20 (1979).

89. 25. 30 C.F.R. §§ 817.121, 817.122, & 784.20 (1992).

90. 26. 30 C.F.R. § 817.121(a) (1992).

91. 27. 30 U.S.C. § 1266(c).

92. 28. 733 F. Supp. 419 (D.D.C. 1990).

93. 29. Id. at 433-34.

94. 30. Id. at 434.

95. 31. Id.

96. 32. Id.

97. 33. 1977 U.S.C.C.A.N. 658.

98. 34. Id. H. Rep. No. 95-218, 95th Cong., 1st Sess. 126 (1977). In this report, some of the measures available for subsidencecontrol are identified. These include: "(3) causing subsidence to occur at a predictable time and in a relatively uniform and predictablemanner. This specifically allows for the uses of longwall and other mining techniques which completely remove the coal." Id.

99. 35. S.A. Sanderson, "The Future of Longwall Mining: Regulation or Prohibition?," Special Institute on Mineral Development inthe Illinois Basin, ch. 4 (Eastern Min. L. Found., Evansville, Ind., May 10 & 11, 1991).

100. 36. See H. Rep. No. 95-218, 95th Cong., 1st Sess. 126 (1977) and S. Rep. No. 95-128, 95th Cong., 1st Sess. 84 (1977),which directed the Secretary to provide in his regulations that "operators may use underground mining techniques, such as long-wallmining, which completely extract the coal and which result in predictable and controllable subsidence" for the purpose of complyingwith the planned subsidence requirements.

101. 37. 48 Fed. Reg. 24,638, 24,643 (1983) (citing 47 Fed. Reg. 16,606 (1982)).

102. 38. 30 U.S.C. § 1202(a).

103. 39. 30 U.S.C. § 1202(b).

104. 40. S. Rep. No. 95-128, 95th Cong., 1st Sess. 56 (1977).

105. 41. 30 U.S.C. § 1266.

106. 42. Senate Bill 7 also titled its provision, "Surface Effects of Underground Coal Mining Operations," but numbered it as § 416.S Rep. No. 95-128, 95th Cong., 1st Sess. 28-29 (1977).

107. 43. 30 C.F.R. § 817.124; 44 Fed. Reg. 14,902, 15,440 (1979).

108. 44. In Re Permanent Surface Mining Reg. Litig., 14 E.R.C. 1083, 1108 (D.D.C. 1980).

109. 45. 30 C.F.R. § 817.121(c)(1) (1992).

110. 46. In Re Permanent Surface Mining Reg. Litig., 21 E.R.C. 1724 (D.D.C. 1984) (hereinafter cited as In Re Permanent II).

111. 47. 30 U.S.C. §§ 1265(b)(2), 1266(b)(1), & 1266(b)(10).

112. 48. In Re Permanent II, 21 E.R.C. at 1728-29.

113. 49. 839 F.2d 694 (D.C. Cir. 1988).

114. 50. Id. at 740.

115. 51. Id.

116. 52. Id. at 741.

117. 53. 30 U.S.C. § 1266(b)(1).

118. 54. 733 F. Supp. 419, 433 (D.D.C. 1990). See discussion in text, supra, at § 10.04[2][b].

119. 55. Justification for the duty of planned subsidence operators to repair or compensate for damage to structures and facilitiesunder 30 C.F.R. § 817.121(c)(2) may be subject to attack for the same reason, except that compensation for damage to "occupiedresidential dwellings, . . . structures related thereto, [and] noncommercial buildings" is now justified through the Energy Policy Act of1992. See discussion in text, infra, at §§ 10.04[2][d] and 10.05[1].

120. 56. See discussion in text, infra, at § 10.08.

121. 57. 30 C.F.R. § 817.121(c)(2).

122. 58. 44 Fed. Reg. 14,902, 15,440 (1979) (publishing the final rule codified at 30 C.F.R. § 817.124).

123. 59. 50 Fed. Reg. 27,910 (1985).

124. 60. 52 Fed. Reg. 4,860 (1987).

125. 61. National Wildlife Fed'n v. Lujan, 733 F. Supp. 419 (D.D.C. 1990), rev'd in pertinent part, 928 F.2d 453 (D.C. Cir. 1991).

126. 62. 928 F.2d 453 (D.C. Cir. 1991).

127. 63. 30 U.S.C § 1266(b)(1).

128. 64. Id. at 458 n. 3.

129. 65. Alabama, BNA, Mining 1501:0653 (1986), Ala. Admin. Code r. 880-X-10D-.60); Illinois, Ill. Admin. Code tit. 62, § 1817.121(c) (1992); Indiana, Ind. Admin. Code tit. 310, r. 12-5-132(c) (1992); Kentucky, 405 Ky. Admin. Regs. 18:210(3)(1992); Pennsylvania, 35 Pa. Code § 89.145 (1990); and Virginia, Va. Reg. § 480-03-19.817.12(c) (1992).

130. 66. W. Va. C.S.R. § 38-2-16(c) (1990).

131. 67. Ohio Admin. Code § 1501:13-12-03(E) (1990).

132. 68. Discussed in text, infra, at § 10.05.

133. 69. 30 C.F.R. § 817.121(d), provides in its entirety as follows:

Underground mining activities shall not be conducted beneath or adjacent to (1) public buildings and facilities; (2) churches, schooland hospitals; or (3) impoundments with a storage capacity of 20 acre-feet or more or bodies of water with a volume of 20 acre-feet ormore, unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonablyforeseeable use of, such features or facilities. If the regulatory authority determines that it is necessary in order to minimize thepotential for material damage to the features or facilities described above or to any aquifer or body of water that serves as a significantwater source for any public water supply system, it may limit the percentage of coal extracted under or adjacent thereto.

134. 70. Id.

135. 71. 30 C.F.R. § 817.121(e).

136. 72. 30 C.F.R. § 817.121(f).

137. 73. 30 U.S.C. § 1266(c).

138. 74. 30 U.S.C. § 1266(b)(1).

139. 1. Pub. L. No. 102-486, 106 Stat. 3104 (October 24, 1992) (codified in various sections of the U.S.C.).

140. 2. The Energy Policy Act provides that "Title VII of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1291 and following) is amended by adding the following new section at the end thereof:

(a) REQUIREMENTS. -- Underground coal mining operations conducted after the date of enactment of this section shall comply witheach of the following requirements:

(1) Promptly repair, or compensate for, material damage resulting from subsidence caused to any occupied residential dwelling andstructures related thereto, or non-commercial building due to underground coal mining operations. Repair of damage shall includerehabilitation, restoration, or replacement of the damaged occupied residential dwelling and structures related thereto, or non-commercial building. Compensation shall be provided to the owner of the damaged occupied residential dwelling and structuresrelated thereto or non-commercial building and shall be in the full amount of the diminution in value resulting from the subsidence.Compensation may be accomplished by the purchase, prior to mining, of a noncancellable premium-prepaid insurance policy.

(2) Promptly replace any drinking, domestic, or residential water supply from a well or spring in existence prior to the application fora surface coal mining and reclamation permit, which has been affected by contamination, diminution, or interruption resulting fromunderground coal mining operations.

Nothing in this section shall be construed to prohibit or interrupt underground coal mining operations.

(b) REGULATIONS. -- Within one year after the date of enactment of this section, the Secretary shall, after providing notice andopportunity for public comment, promulgate final regulations to implement subsection (a).

Pub. L. No. 102-486, § 2504(a) (to be codified at 30 U.S.C. § 1309a).

141. 3. Pub. L. No. 102-486, § 2504(a)(1) (to be codified at 30 U.S.C. § 1309a(a)(1)).

142. 4. Bituminous Mine Subsidence and Land Conservation Act of 1966, as amended, Pa. Stat. Ann. tit. 52, §§ 1406.1 to .21 (1966& Supp. 1993).

143. 5. Pa. Stat. Ann. tit. 52, § 1406.4; see also, 25 Pa. Code § 89.145(a) (1990).

144. 6. Id.

145. 7. Id.

146. 8. Id. See also, 30 C.F.R. § 817.121(c)(2) (1992).

147. 9. Pub. L. No. 102-486, § 2504(a)(2) (to be codified at 30 U.S.C. § 1309a(a)(2)).

148. 10. Pub. L. No. 102-486, § 2504(a)(2) (to be codified at 30 U.S.C. § 1309a(a)(2)).

149. 11. 30 C.F.R. § 817.121(c); see text, supra, at § 10.04[2][d].

150. 12. H. Rep. No. 102-1077, pp. 61-62 (Dec. 29, 1992) (1992 WL 425113).

151. 13. Id.

152. 14. Id.

153. 15. Pub. L. No. 102-486, § 2504(2)(A).

154. 16. Id.

155. 17. Id.

156. 18. Id.

157. 19. Id.

158. 1. 375 S.E.2d 814 (W. Va. 1988).

159. 2. Id. at 815.

160. 3. W. Va. Code § 22A-3-1 (1985).

161. 4. Id. at 816.

162. 5. 806 F. Supp. 1278 (N.D. W. Va. 1992).

163. 6. Id. at 1280.

164. 7. The Smerdells also claimed that the subsidence damage waiver was rendered unenforceable by virtue of the changed andunanticipated circumstances of Consol's use of longwall mining. The court summarily rejected this claim, pointing out that the waiverprovision clearly and unambiguously demonstrated the surface owner's intent to waive the right to subjacent support by whatevermethod the coal might be removed. Id. at 1285. This result is consistent with that of most other courts that have faced this issue. Seediscussion in text, supra, at § 10.02[1].

165. 8. In Re Permanent II, 21 E.R.C. 1724 (D.D.C. October 1, 1984).

166. 9. 389 S.E.2d 194 (W. Va. 1989).

167. 10. Smerdell, 806 F. Supp. at 1284 (quoting Russell, 389 S.E.2d at 205).

168. 11. W. Va. Code, § 22A-3-24 (1985).

169. 12. 30 U.S.C. § 1307(b).

13. 839 F.2d 694 (D.C. Cir. 1988).

171. 14. Id. at 756.

172. 15. Hodel at 757.

173. 16. Smerdell at 1284.

174. 17. Civil No. 85-0056-W(S) (N.D. W. Va. Dec. 12, 1991), aff'd , 972 F.2d 339 (4th Cir. 1992).

175. 18. Gizza, No. 85-0056-W(S), slip op. at p. 13.

176. 19. 972 F.2d 339 (4th Cir. 1992).

177. 20. 1992 U.S. App. LEXIS 18585.

178. 21. 610 F. Supp. 131, clarified, 612 F. Supp. 1204 (S.D. Ill. 1985).

179. 22. Ill. Ann. Stat. ch. 96½, ¶¶ 7901.01 ­ 7909.09 (Supp. 1992).

180. 23. Melvin v. Old Ben Coal Co., 610 F. Supp. 131, 133 (S.D. Ill. 1985).

181. 24. Id. at 135.

182. 25. Id. at 137.

183. 26. Melvin v. Old Ben Coal Co., 612 F. Supp. 1204 (S.D. Ill. 1985).

184. 27. Id. at 1205.

185. 28. Id. at 1206.

186. 29. See text, supra, at § 10.04[2][d].

187. 30. Ill. Admin. Code tit. 62, § 1817.121(c) (1991).

188. 31. 562 N.E.2d 1202 (Ill. Int. App. Ct. 1990).

189. 32. Id. at 1206-07.

190. 33. Id. at 1208, quoting R.E Beck, "Illinois Coal Mine Subsidence Law Updated," 1985 S. Ill. U. L.J. 379, 422.

191. 34. Id.

192. 35. 612 F. Supp. 1204 (S.D. Ill. 1985).

193. 36. The court also rejected Old Ben's takings and impairment of contract rights arguments. These are discussed in more detail inthe text, infra, at § 10.08[2][c], [3].

194. 37. 576 N.E.2d 1120 (Ill. Int. App. Ct. 1991).

195. 38. Id. at 1122.

196. 39. Id.

197. 40. 722 F. Supp. 1370 (W.D. Va. 1989).

198. 41. Va. Code. Ann. §§ 45.1-226 ­ 45.1-270.7 (1989).

199. 42. See text, supra, at § 10.02[1].

200. 43. Va. Code Ann. § 45.1-246.1(A)(1).

201. 44. Va. Code Ann. § 45.1-246.1(B)(1).

202. 45. Va. Code Ann. § 45.1-246.1(G).

203. 46. Ball, 722 F. Supp. at 1376.

204. 47. Va. Code Ann. § 45.1-228(B).

205. 1. 30 U.S.C. § 1266(a).

206. 2. 30 U.S.C. § 1266.

207. 3. 30 C.F.R. § 817.121(a) & (c)(1).

208. 4. H. Rep. No. 95-218, 95th Cong., 1st Sess. 125 & 126 (1977); S. Rep. No. 95-128, 95th Cong., 1st Sess. 50, 84 (1977).

209. 5. 30 U.S.C. § 1291(28).

210. 6. 48 Fed. Reg. 24,638, 24,640 (1983).

211. 7. Pub. L. No. 102-486 § 2504(a)(1), 106 Stat. 3104, (to be codified at 30 U.S.C. § 1309a).

212. 8. Pa. Stat. Ann. tit. 52, §§ 1406.1 to .21 (1986 & Supp. 1993).

213. 9. Compare Pa. Stat. Ann. tit. 52, § 1406.5(e) with 30 U.S.C. § 1266(b)(1).

214. 10. George v. Commonwealth Dept. of Envtl. Res., 517 A.2d 578 (Pa. Int. App. Ct. 1986); Culp v. Consol Pa. Coal Co., 506A.2d 985 (Pa. Int. App. Ct. 1986).

215. 11. 506 A.2d 985 (Pa. Int. App. Ct. 1986).

216. 12. 517 A.2d 578 (Pa. Int. App. Ct. 1986).

217. 13. Id. at 579.

218. 1. U.S. Const., amend. V.

219. 2. U.S. Const., art. I, § 10.

220. 3. U.S. Const., amend. XIV.

221. 4. C.A. Fox, jr., "Constitutional Limitations on the Regulation of Subsidence," Special Institute on Coal Mine Subsidence, § 9.02 (Eastern Min. L. Found., Pittsburgh, Pa., December 1989) [hereinafter cited as Fox]; see also, Hadacheck v. Sebastian, 239U.S. 394 (1915).

5. Fox at §9.02; see, e.g. , Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981); Usery v. TurnerElkhorn Mining Co., 428 U.S. 1 (1976).

223. 6. Fox at § 9.03.

224. 7. Id.

225. 8. Id.

226. 9. 452 U.S. 264 (1981); see also, Fox at § 9.02.

227. 10. 480 U.S. 470 (1987).

228. 11. Fox at § 9.02.

229. 12. See U.S. Const., amend. V & XIV.

230. 13. U.S. Const., amend. V.

231. 14. C.S. Bratt & K.J. Greenwell, "Kentucky's Broad Form Deed Amendment: "Constitutional Considerations," 5 J. Min. L. &Pol'y 9, 28 (1989-90) (citing Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 80 (1937)) [hereinafter cited as Bratt &Greenwell].

232. 15. 452 U.S. 264 (1981).

233. 16. Id. at 298 n. 40.

234. 17. Id.

235. 18. Bratt & Greenwell at 21 (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).

236. 19. Andrus v. Allard, 444 U.S. 51 (1979); see also, U.S. v. Causby, 328 U.S. 256 (1946).

237. 20. Bratt & Greenwell at 25 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (trade secrets); Louisville Joint StockLand Bank v. Radford, 295 U.S. 555 (1935) (real estate lien)).

238. 21. Bratt & Greenwell at 25 (citing United States Trust Co. v. New Jersey, 431 U.S. 1, 19 n. 16 (1977); see also, Contributorsto Pennsylvania Hosp. v. City of Philadelphia, 245 U.S. 20 (1917) and El Paso v. Simmons, 379 U.S. 497, 533-34 (1965) (Black, J.,dissenting).

239. 22. Fox at § 9.05; see also, Berman v. Parker, 348 U.S. 26 (1954).

240. 23. Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).

241. 24. Fox at § 9.05.

242. 25. 260 U.S. 393 (1922).

243. 26. Pa. Stat. Ann. tit. 52, §§ 661 ­ 667 (1966).

244. 27. Id. at 413-14.

245. 28. Id. at 416.

29. 480 U.S. 470 (1987).

247. 30. 52 Pa. Stat. Ann. tit. 52, §§ 1406.1 to .21.

248. 31. Keystone, 480 U.S. at 485.

249. 32. Id. at 487.

250. 33. Id. at 486.

251. 34. Id.

252. 35. Id. at 486-7.

253. 36. 444 U.S. 164 (1979).

254. 37. Id. at 175.

255. 38. Bratt & Greenwell at 42 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)).

256. 39. Fox at § 9.05.

257. 40. Id.

258. 41. Id.

259. 42. Nollan v. California Coastal Com'n, 483 U.S. 825 (1987); Fox at § 9.05 (citing Webb's Fabulous Pharmacies, Inc. v.Beckwith, 449 U.S. 155 (1980); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Kaiser Aetna v. U.S., 444U.S. 164 (1979)).

260. 43. Fox at § 9.05 (citing Hadacheck v. Sebastian, 239 U.S. 394 (1915) (88% diminution); Euclid v. Ambler Realty Co., 272U.S. 365 (1926) (75% diminution)).

261. 44. 18 Cl. Ct. 394 (1989), corrected 20 Cl. Ct. 324 (1990), aff'd , 926 F.2d 1169 (Fed. Cir. 1991), cert. denied, ___ U.S. ___,112 S.Ct. 406, 116 L.Ed.2d 354, on remand, 25 Cl. Ct. 232 (1992).

262. 45. 30 U.S.C. § 1260(b)(5)(A).

263. 46. 18 Cl. Ct. 394 at 400-04.

264. 47. Id. at 404.

265. 48. Id. at 404-5.

266. 49. Whitney Benefits, Inc. v. U.S., 926 F.2d 1169, 1174 (Fed. Cir. 1991), cert. denied, ____ U.S. ____, 112 S.Ct. 406.

267. 50. Keystone, 450 U.S. at 485.

268. 51. Id. at 496.

269. 52. Id. at 495-96.

270. 53. 562 N.E.2d 1202 (Ill. Int. App. Ct. 1990).

54. Id. at 1209.

272. 55. Id.

273. 56. 52 Fed. Reg. 4,860, 4,863 (1987) (emphasis added).

274. 57. Keystone, 480 U.S. at 485.

275. 58. U. S. Const., art. I, § 10.

276. 59. See Pension Ben. Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984).

277. 60. 431 U.S. 1 (1977).

278. 61. 290 U.S. 398 (1934).

279. 62. Id. at 421, n. 3.

280. 63. Id.

281. 64. Id. at 445.

282. 65. Id.

283. 66. Id. at 445-46.

284. 67. Id. at 447.

285. 68. 431 U.S. 1 (1977).

286. 69. Id. at 22, n. 19.

287. 70. Id.

288. 71. Id. at 54; see also, East New York Sav. Bank v. Hahn, 326 U.S. 230 (1945).

289. 72. Bratt & Greenwell at 55 (citing United States Trust Co. v. New Jersey, 431 U.S. 1, 23-24 (1977)).

290. 73. Keystone, 480 U.S. at 504.

291. 74. Id. at 504 n. 31.

292. 75. Id. at 505 (quoting Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 412 (1983), in turn quotingfrom United States Trust Co. v. New Jersey, 431 U.S. 1, 22 (1977)).

293. 76. Id. at 506.

294. 77. Keystone was decided by only a 5 to 4 vote.

295. 78. Bratt & Greenwell at 66.

296. 79. Old Ben Coal Co. v. Department of Mines & Minerals, 562 N.E.2d 1202, 1209 (Ill. Int. App. Ct. 1990).

297. 80. See, e.g. , Ky. Const. § 19(1) which provides: "No ex post facto law, nor any law impairing the obligation of contracts, shall

be enacted."

298. 81. U. S. Const., amend. XIV.

299. 82. See Bolling v. Sharpe, 347 U.S. 497 (1954).

300. 83. Fox at § 9.04.

301. 84. Id.

302. 85. Bratt & Greenwell at 83 (citing Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)).

303. 86. Id. at 84-85.

304. 87. Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984) (citing Connally v. General Constr. Co., 269 U.S. 385, 391(1925)).

305. 88. 30 U.S.C. § 1266(b)(1).

306. 89. 30 C.F.R. § 817.121(a).

307. 1. 30 U.S.C. § 1266(a).

308. 2. For more detailed discussion, see text, supra, at § 10.07.

309. 3. For more detailed discussion, see text, supra, at § 10.04[2][b].

310. 4. 30 U.S.C. § 1266(c).

311. 5. For more detailed discussion, see text, supra, at § 10.04[1].

312. 6. 30 C.F.R. § 817.121(d).

313. 7. For more detailed discussion, see text, supra, at § 10.04[2][e].

314. 8. See discussion in text, infra, at § 10.09[4].

315. 9. For the reasons discussed, supra, at § 10.06[1], West Virginia is a possible exception.

316. 10. For more detailed discussion, see text, supra, at §§ 10.04[2][c], 10.05, 10.04[2][d], & 10.06[1].

317. 11. See text, supra, § 10.09[2].

318. 12. 30 C.F.R. § 817.121(c).

319. 13. 839 F.2d 694, 741 (D.C. Cir. 1988).

320. 14. 30 U.S.C. § 1266(b)(1).

321. 15. See 30 C.F.R. § 817.121(a).

322. 16. For more detailed discussion, see text, supra, at § 10.04[2][c].

323. 17. For more detailed discussion, see text, supra, at § 10.08[2][d].

324. 18. For more detailed discussion, see text, supra, at §10.06[2].

325. 19. Ohio Admin. Code § 1501:13-12-03(E) (1990).

326. 20. For more detailed discussion, see text, supra, at § 10.08[c] and [d].

327. 21. George v. Department of Envtl. Res., 517 A.2d 578 (Pa. Int. App. Ct. 1986).

328. 22. For more detailed discussion, see text, supra, at § 10.02[1] and [2][b].

329. 23. For more detailed discussion, see text, supra, at § 10.06[1][b] and [c].

330. 24. For more detailed discussion, see text, supra, at § 10.04[2][d].

331. 25. For more detailed discussion, see text, supra, at § 10.05[1].

332. 26. For more detailed discussion, see text, supra, at § 10.04[2][d].