ruling in Ohio mining case could prove costly John C. Kuehner
Plain Dealer Reporter
City wanted was to protect its water wells from a strip
The tiny village
succeeded. But its fight, which started in 1988, could
require taxpayers to compensate landowners for lost use
of their property because of state regulations.
A ruling this
month by the Ohio Supreme Court could disarm the state's
mining program and encourage developers to challenge the
state's wetlands, shoreline and other environmental safeguards
- and cost taxpayers a lot of money, environmental lawyers
"It's a very
disturbing ruling," said Timothy Dowling, chief counsel
for the Community Rights Counsel, which supported Pleasant
City's case. "This decision requires Ohio taxpayers to
pay polluters not to pollute and to pay corporations for
simply following the laws enacted by the citizens of Ohio
and enforced by state officials."
The state must
decide by today whether it will ask the court for a reconsideration.
State officials have declined to discuss the case since
the justices ruled 4-3 on Dec. 18.
The court ordered
the state to pay the mining company RTG Inc. for the loss
of its coal assets. The Ohio Department of Natural Resources
had imposed a regulation that prevented the company from
mining coal on a portion of property it owned or leased
in Guernsey County.
said that by regulating these mining practices, the state
purchased the coal and must pay for it. It's the same
provision of the Ohio Constitution that requires the state
to compensate a landowner for a public use.
could cost taxpayers more than $5 million, depending on
the final assessed value of RTG's estimated 1.3 million
tons of unmined coal. The state also must pay RTG's lawyers'
fees, which will be more than $250,000.
"As a citizen,
if your property is taken from you, and if you are to
be paid for it, is that such a bad result?" asked RTG's
lawyer, Mark Stemm. "What's the big concern? The constitution
has been followed here."
But others say
that what makes this ruling so monumental is that it ignored
past U.S. Supreme Court decisions, including a decision
this year, said John Echeverria, executive director of
the Georgetown Environmental Law and Policy Institute.
The Ohio Supreme Court carved out a ruling based on Ohio's
Constitution that recognizes coal as a separate, distinct
by the federal court considered the entire value of a
property with its other uses and assets, such as timber
and available building surface. The state had argued that
RTG either already has mined, or could mine, 40 percent
of the property.
"It is the single
most radical decision on the takings issue anywhere in
the United States," Echeverria said. "The decision creates
a precedent that raises the specter that it will be impossible
for Ohio to implement its mining program. It seems unlikely
the court recognized what an extreme step they were taking."
sees it that way.
"We think it's
a victory for the coal industry," said Mike Carey, who
heads the Ohio Coal Association, which represents the
state's coal producers and related industries.
"Access is important:
You have to be able to mine the coal to sell it."
The Pacific Legal
Foundation, which fights for property rights, supported
"Whenever a court
recognizes that a property-right interest is being taken
by government and requires compensation, that is a victory
for property rights," said Meriem Hubbard, a legal counsel
with the group.
that "takings" are a controversial, complex and unsettled
area of the law.
The issues in
the RTG suit date back nearly two decades. The small,
family-owned mining company wanted to strip-mine a section
of Guernsey County. The company acquired the mining rights
and proper state permits and prepared the site for mining,
said Stemm, the RTG lawyer.
which started when the company announced plans in the
early 1980s, continued.
In 1987, the
U.S. Environmental Protection Agency designated the aquifer
that served the village's water supply as the sole source
for drinking water.
A year later,
the village asked the state to designate 833 acres as
unsuitable for mining because the operations would affect
the water wells that serve the village's 1,000 residents.
But the state
fought the designation, seeking instead to designate a
The village fought
the state all the way to the Ohio Supreme Court, which
ordered the state in 1994 to broaden the ban.
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