KEYSTONE BITUMINOUS COAL ASSN. ET AL. v. DEBENEDICTIS, SECRETARY, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, ET AL.
No. 85-1092
Supreme Court of the United States
Argued November 10, 1986—Decided March 9, 1987
480 U.S. 470
Rex E. Lee argued the cause for petitioners. With him on the briefs were Benjamin W. Heineman, Jr., Michael A. Nemeroff, Carter G. Phillips, Henry McC. Ingram, and Thomas C. Reed.
Andrew S. Gordon, Chief Deputy Attorney General of Pennsylvania, argued the cause for respondent. With him on the brief was LeRoy S. Zimmerman, Attorney General.*
*Briefs of amici curiae urging reversal were filed for the Mid-Atlantic Legal Foundation et al. by Richard B. McGlynn; for the National Coal Association et al. by Harold P. Quinn, Jr.; and for the Pacific Legal Foundation by Ronald A. Zumbrun, Robert K. Best, and Lucinda Low Swartz.
In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court reviewed the constitutionality of a Pennsylvania statute that admittedly destroyed “previously existing rights of property and contract.” Id., at 413. Writing for the Court, Justice Holmes explained:
“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.
Briefs of amici curiae urging affirmance were filed for the State of California ex rel. John K. Van de Kamp et al. by Mr. Van de Kamp, Attorney General of California, pro se, Richard C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant Attorneys General, Richard M. Frank, and Craig C. Thompson, and by the Attorneys General for their respective States as follows: John Steven Clark of Arkansas, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Linley E. Pearson, of Indiana, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Francis X. Bellotti of Massachusetts, James E. Tierney of Maine, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Robert M. Spire of Nebraska, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Robert Abrams of New York, Lacy H. Thornburg of North Carolina, Michael Turpin of Oklahoma, Dave Frohnmayer of Oregon, Mark V. Meierhenry of South Dakota, W. J. Michael Cody of Tennessee, Jeffrey L. Amestoy of Vermont, Kenneth O. Eikenberry of Washington, and Bronson C. La Follette of Wisconsin; for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Robert H. Freilich; and for the Pennsylvania State Grange et al. by K. W. James Rochow.
So the question depends upon the particular facts.” Ibid.
In that case the “particular facts” led the Court to hold that the Pennsylvania Legislature had gone beyond its constitutional powers when it enacted a statute prohibiting the mining of anthracite coal in a manner that would cause the subsidence of land on which certain structures were located.
Now, 65 years later, we address a different set of “particular facts,” involving the Pennsylvania Legislature‘s 1966 conclusion that the Commonwealth‘s existing mine subsidence legislation had failed to protect the public interest in safety, land conservation, preservation of affected municipalities’ tax bases, and land development in the Commonwealth. Based on detailed findings, the legislature enacted the Bituminous Mine Subsidence and Land Conservation Act (Subsidence Act or Act),
I
Coal mine subsidence is the lowering of strata overlying a coal mine, including the land surface, caused by the extraction of underground coal. This lowering of the strata can have devastating effects.1 It often causes substantial dam-
Despite what their name may suggest, neither of the “full extraction” mining methods currently used in western Pennsylvania4 enables miners to extract all subsurface coal; considerable amounts need to be left in the ground to provide access, support, and ventilation to the mines. Additionally, mining companies have long been required by various Pennsylvania laws and regulations, the legitimacy of which is not challenged here, to leave coal in certain areas for public safety reasons.5 Since 1966, Pennsylvania has placed an additional set of restrictions on the amount of coal that may be
Pennsylvania‘s Subsidence Act authorizes the Pennsylvania Department of Environmental Resources (DER) to implement and enforce a comprehensive program to prevent or minimize subsidence and to regulate its consequences. Section 4 of the Subsidence Act,
In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. Petitioners are an association of coal mine operators, and four corporations that are engaged, either directly or through affiliates, in underground mining of bituminous coal in western Pennsylvania. The members of the association and the corporate petitioners own, lease, or otherwise control substantial coal reserves beneath the surface of property affected by the Subsidence Act. The defendants in the action, respondents here, are the Secretary of the DER, the Chief of the DER‘s Division of Mine Subsidence, and the Chief of the DER‘s Section on Mine Subsidence Regulation.
The complaint alleges that Pennsylvania recognizes three separate estates in land: The mineral estate; the surface estate; and the “support estate.” Beginning well over 100 years ago, landowners began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. It is stipulated that approximately 90% of the coal that is or will be mined by petitioners in western Pennsylvania was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired or retained certain additional rights that would enable them to extract and remove the coal. Thus, they acquired the right to deposit wastes, to provide for drainage and ventilation, and to erect facilities such as tipples, roads, or railroads, on the surface. Additionally, they typically acquired a waiver of any claims for damages that might result from the removal of the coal.
In the portions of the complaint that are relevant to us, petitioners alleged that both § 4 of the Subsidence Act, as im-
In rejecting petitioners’ Takings Clause claim, the District Court first distinguished Pennsylvania Coal, primarily on the ground that the Subsidence Act served valid public purposes that the Court had found lacking in the earlier case. 581 F. Supp. 511, 516 (1984). The District Court found that the restriction on the use of petitioners’ property was an exercise of the Commonwealth‘s police power, justified by Pennsylvania‘s interest in the health, safety, and general welfare of the public. In answer to petitioners’ argument that the Subsidence Act effectuated a taking because a separate, recognized interest in realty—the support estate—had been entirely destroyed, the District Court concluded that under Pennsylvania law the support estate consists of a bundle of rights, including some that were not affected by the Act. That the right to cause damage to the surface may constitute the most valuable “strand” in the bundle of rights possessed by the owner of a support estate was not considered controlling under our decision in Andrus v. Allard, 444 U. S. 51 (1979).
In rejecting petitioners’ Contracts Clause claim, the District Court noted that there was no contention that the Subsi-
The Court of Appeals affirmed, agreeing that Pennsylvania Coal does not control because the Subsidence Act is a legitimate means of “protect[ing] the environment of the Commonwealth, its economic future, and its well-being.” 771 F. 2d 707, 715 (1985). The Court of Appeals’ analysis of the Subsidence Act‘s effect on petitioners’ property differed somewhat from the District Court‘s, however. In rejecting the argument that the support estate had been entirely destroyed, the Court of Appeals did not rely on the fact that the support estate itself constitutes a bundle of many rights, but rather considered the support estate as just one segment of a larger bundle of rights that invariably includes either the surface estate or the mineral estate. As Judge Adams explained:
“To focus upon the support estate separately when assessing the diminution of the value of plaintiffs’ property caused by the Subsidence Act therefore would serve little purpose. The support estate is more properly viewed as only one ‘strand’ in the plaintiff‘s ‘bundle’ of property rights, which also includes the mineral estate. As the Court stated in Andrus, ‘[t]he destruction of one “strand” of the bundle is not a taking because the aggregate must be viewed in its entirety.’ 444 U. S. at 65. . . . The use to which the mine operators wish to put the support estate is forbidden. However, because the plaintiffs still possess valuable mineral rights that enable
them profitably to mine coal, subject only to the Subsidence Act‘s requirement that they prevent subsidence, their entire ‘bundle’ of property rights has not been destroyed.” Id., at 716.
With respect to the Contracts Clause claim, the Court of Appeals agreed with the District Court that a higher degree of deference should be afforded to legislative determinations respecting economic and social legislation affecting wholly private contracts than when the State impairs its own agreements. The court held that the impairment of private agreements effectuated by the Subsidence Act was justified by the legislative finding “that subsidence damage devastated many surface structures and thus endangered the health, safety, and economic welfare of the Commonwealth and its people.” Id., at 718. We granted certiorari, 475 U. S. 1080 (1986), and now affirm.
III
Petitioners assert that disposition of their takings claim10 calls for no more than a straightforward application of the Court‘s decision in Pennsylvania Coal Co. v. Mahon. Although there are some obvious similarities between the cases, we agree with the Court of Appeals and the District Court that the similarities are far less significant than the differences, and that Pennsylvania Coal does not control this case.
In Pennsylvania Coal, the Pennsylvania Coal Company had served notice on Mr. and Mrs. Mahon that the company‘s mining operations beneath their premises would soon reach a point that would cause subsidence to the surface. The Mahons filed a bill in equity seeking to enjoin the coal company from removing any coal that would cause “the caving in, col-
After initially having entered a preliminary injunction pending a hearing on the merits, the Chancellor soon dissolved it, observing:
“[T]he plaintiffs’ bill contains no averment on which to base by implication or otherwise any finding of fact that any interest public or private is involved in the defendant‘s proposal to mine the coal except the private interest of the plaintiffs in the prevention of private injury.” Tr. of Record in Pennsylvania Coal v. Mahon, O. T. 1922, No. 549, p. 23.
The Pennsylvania Supreme Court reversed, concluding that the Kohler Act was a proper exercise of the police power. 274 Pa. 489, 118 A. 491 (1922). One Justice dissented. He concluded that the Kohler Act was not actually intended to protect lives and safety, but rather was special legislation enacted for the sole benefit of the surface owners who had released their right to support. Id., at 512-518, 118 A., at 499-501.
The company promptly appealed to this Court, asserting that the impact of the statute was so severe that “a serious shortage of domestic fuel is threatened.” Motion to Advance for Argument in Pennsylvania Coal v. Mahon, O. T. 1922, No. 549, p. 3. The company explained that until the Court ruled, “no anthracite coal which is likely to cause surface subsidence can be mined,” and that strikes were threatened
Over Justice Brandeis’ dissent, this Court accepted the company‘s argument. In his opinion for the Court, Justice Holmes first characteristically decided the specific case at hand in a single, terse paragraph:
“This is the case of a single private house. No doubt there is a public interest even in this, as there is in every purchase and sale and in all that happens within the commonwealth. Some existing rights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But usually in ordinary private affairs the public interest does not warrant much of this kind of interference. A source of damage to such a house is not a public nuisance even if similar damage is inflicted on others in different places. The damage is not common or public. Wesson v. Washburn Iron Co., 13 Allen, 95, 103. The extent of the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an es-
tate in land—a very valuable estate—and what is declared by the Court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiffs’ position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant‘s constitutionally protected rights.” 260 U. S., at 413-414.
Then—uncharacteristically—Justice Holmes provided the parties with an advisory opinion discussing “the general validity of the Act.”12 In the advisory portion of the Court‘s opinion, Justice Holmes rested on two propositions, both critical to the Court‘s decision. First, because it served only private interests, not health or safety, the Kohler Act could not be “sustained as an exercise of the police power.” Id., at 414. Second, the statute made it “commercially impracticable” to mine “certain coal” in the areas affected by the Kohler Act.13
The holdings and assumptions of the Court in Pennsylvania Coal provide obvious and necessary reasons for distinguishing Pennsylvania Coal from the case before us today.
The Public Purpose
Unlike the Kohler Act, which was passed upon in Pennsylvania Coal, the Subsidence Act does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners. The Pennsylvania Legislature specifically found that important public interests are served by enforcing a policy that is designed to minimize subsidence in certain areas. Section 2 of the Subsidence Act provides:
“This act shall be deemed to be an exercise of the police powers of the Commonwealth for the protection of the health, safety and general welfare of the people of the Commonwealth, by providing for the conservation of surface land areas which may be affected in the mining of bituminous coal by methods other than ‘open pit’ or
‘strip’ mining, to aid in the protection of the safety of the public, to enhance the value of such lands for taxation, to aid in the preservation of surface water drainage and public water supplies and generally to improve the use and enjoyment of such lands and to maintain primary jurisdiction over surface coal mining in Pennsylvania.”
Pa. Stat. Ann., Tit. 52, § 1406.2 (Purdon Supp. 1986).
The District Court and the Court of Appeals were both convinced that the legislative purposes14 set forth in the statute were genuine, substantial, and legitimate, and we have no reason to conclude otherwise.15
None of the indicia of a statute enacted solely for the benefit of private parties identified in Justice Holmes’ opinion are present here. First, Justice Holmes explained that the Kohler Act was a “private benefit” statute since it “ordinarily does not apply to land when the surface is owned by the owner of the coal.” 260 U. S., at 414. The Subsidence Act, by contrast, has no such exception. The current surface owner may only waive the protection of the Act if the DER consents. See 25 Pa. Code § 89.145(b) (1983). Moreover, the Court was forced to reject the Commonwealth‘s safety justification for the Kohler Act because it found that the Commonwealth‘s interest in safety could as easily have been accomplished through a notice requirement to landowners. The Subsidence Act, by contrast, is designed to accomplish a number of widely varying interests, with reference to which petitioners have not suggested alternative methods through which the Commonwealth could proceed.
Petitioners argue that at least § 6, which requires coal companies to repair subsidence damage or pay damages to those
Thus, the Subsidence Act differs from the Kohler Act in critical and dispositive respects. With regard to the Kohler Act, the Court believed that the Commonwealth had acted only to ensure against damage to some private landowners’ homes. Justice Holmes stated that if the private individuals needed support for their structures, they should not have
In Pennsylvania Coal the Court recognized that the nature of the State‘s interest in the regulation is a critical factor in determining whether a taking has occurred, and thus whether compensation is required.17 The Court distinguished the case before it from a case it had decided eight years earlier, Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914). There, “it was held competent for the legislature to require a pillar of coal to be left along the line of adjoining property.” Pennsylvania Coal, 260 U. S., at 415. Justice Holmes explained that unlike the Kohler Act, the statute challenged in Plymouth Coal dealt with “a requirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage that has been recognized as a justification of various laws.” 260 U. S., at 415.
Many cases before and since Pennsylvania Coal have recognized that the nature of the State‘s action is critical in takings analysis.18 In Mugler v. Kansas, 123 U. S. 623
“prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or appropriation of property. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society cannot be—burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.” Id., at 668-669.
when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). While the Court has almost invariably found that the permanent physical occupation of property constitutes a taking, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435-438 (1982), the Court has repeatedly upheld regulations that destroy or adversely affect real property interests. See, e. g., Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211 (1986); Penn Central Transportation Co. v. New York City, 438 U. S., at 125; Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 674, n. 8 (1976); Goldblatt v. Hempstead, 369 U. S. 590, 592-593 (1962); Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Gorieb v. Fox, 274 U. S. 603, 608 (1927); Welch v. Swasey, 214 U. S. 91 (1909). This case, of course, involves land use regulation, not a physical appropriation of petitioners’ property.
See also Plymouth Coal Co., supra; Hadacheck v. Sebastian, 239 U. S. 394 (1915); Reinman v. Little Rock, 237 U. S. 171 (1915); Powell v. Pennsylvania, 127 U. S. 678 (1888).
We reject petitioners’ implicit assertion that Pennsylvania Coal overruled these cases which focused so heavily on the nature of the State‘s interest in the regulation. Just five years after the Pennsylvania Coal decision, Justice Holmes joined the Court‘s unanimous decision in Miller v. Schoene, 276 U. S. 272 (1928), holding that the Takings Clause did not require the State of Virginia to compensate the owners of cedar trees for the value of the trees that the State had ordered destroyed. The trees needed to be destroyed to prevent a disease from spreading to nearby apple orchards, which represented a far more valuable resource. In upholding the state action, the Court did not consider it necessary to “weigh with nicety the question whether the infected cedars constitute a nuisance according to common law; or whether they may be so declared by statute.” Id., at 280. Rather, it was clear that the State‘s exercise of its police power to prevent the impending danger was justified, and did not require compensation. See also Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Omnia Commercial Co. v. United States, 261 U. S. 502, 509 (1923). Other subsequent cases reaffirm the important role that the nature of the state action plays in our takings analysis. See Goldblatt v. Hempstead, 369 U. S. 590 (1962); Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism‘d, 371 U. S. 36 (1962). As the Court explained in Goldblatt: “Although a comparison of values before and after” a regulatory action “is relevant, . . . it is by no means conclusive. . . .” 369 U. S., at 594.19
In Agins v. Tiburon, we explained that the “determination that governmental action constitutes a taking, is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest,” and we recognized that this question “necessarily requires a weighing of private and public interests.” 447 U. S., at 260-261. As the cases discussed above demonstrate, the public interest in preventing activities similar to public nuisances is a substantial one, which in many instances has not required compensation. The Subsidence Act, unlike the Kohler Act, plainly seeks to further such an interest. Nonetheless, we need not rest our decision on this factor alone, because petitioners have also failed to make a
Diminution of Value and Investment-Backed Expectations
The second factor that distinguishes this case from Pennsylvania Coal is the finding in that case that the Kohler Act made mining of “certain coal” commercially impracticable. In this case, by contrast, petitioners have not shown any deprivation significant enough to satisfy the heavy burden placed upon one alleging a regulatory taking. For this reason, their takings claim must fail.
In addressing petitioners’ claim we must not disregard the posture in which this case comes before us. The District Court granted summary judgment to respondents only on the facial challenge to the Subsidence Act. The court explained that “[b]ecause plaintiffs have not alleged any injury due to the enforcement of the statute, there is as yet no concrete controversy regarding the application of the specific provisions and regulations. Thus, the only question before this court is whether the mere enactment of the statutes and regulations constitutes a taking.” 581 F. Supp., at 513 (emphasis added). The next phase of the case was to be petitioners’ presentation of evidence about the actual effects the Subsidence Act had and would have on them. Instead of proceeding in this manner, however, the parties filed a joint motion asking the court to certify the facial challenge for appeal. The parties explained that an assessment of the actual impact that the Act has on petitioners’ operations “will involve complex and voluminous proofs,” which neither party was currently in a position to present, App. 15-17, and stressed that if an appellate court were to reverse the District Court on the facial challenge, then all of their expenditures in adjudicating the as-applied challenge would be wasted. Based
The posture of the case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation. This point is illustrated by our decision in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), in which we rejected a preenforcement challenge to the constitutionality of the
“[T]he court below ignored this Court‘s oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary. See Socialist Labor Party v. Gilligan, 406 U. S. 583, 588 (1972); Rescue Army v. Municipal Court, 331 U. S. 549, 568-575, 584 (1947); Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed:
“‘[T]his Court has generally “been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Rather, it has examined the “taking” question by engaging in essentially ad hoc, factual inquiries that have identified several factors—such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action—that have particular significance.’ Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979) (citations omitted).
“These ‘ad hoc, factual inquiries’ must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances.
“Because appellees’ taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the ‘mere enactment’ of the Surface Mining Act constitutes a taking. See Agins v. Tiburon, 447 U. S. 255, 260 (1980). The test to be applied in considering this facial challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it ‘denies an owner economically viable use of his land . . . .’ Agins v. Tiburon, supra, at 260; see also Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978).” 452 U. S., at 295-296.
Petitioners thus face an uphill battle in making a facial attack on the Act as a taking.
The hill is made especially steep because petitioners have not claimed, at this stage, that the Act makes it commercially
Instead, petitioners have sought to narrowly define certain segments of their property and assert that, when so defined, the Subsidence Act denies them economically viable use. They advance two alternative ways of carving their property in order to reach this conclusion. First, they focus on the specific tons of coal that they must leave in the ground under
Because our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property “whose value is to furnish the denominator of the fraction.” Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1192 (1967).25 In Penn Central the Court explained:
“‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole—here the city tax block designated as the landmark site.” 438 U. S., at 130-131.
Similarly, in Andrus v. Allard, 444 U. S. 51 (1979), we held that “where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking because the aggregate must be viewed in its entirety.” Id., at 65-66. Although these verbal formulizations do not solve all of the definitional issues that may arise in defining the relevant mass of property, they do provide sufficient guidance to compel us to reject petitioners’ arguments.
The parties have stipulated that enforcement of the
This argument fails for the reason explained in Penn Central and Andrus. The 27 million tons of coal do not constitute a separate segment of property for takings law purposes. Many zoning ordinances place limits on the property owner‘s right to make profitable use of some segments of his property. A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area as readily as the requirement that coal pillars be left in place. Similarly, under petitioners’ theory one could always argue that a setback ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking because the footage represents a distinct segment of property for takings law purposes. Cf. Gorieb v. Fox, 274 U. S. 603 (1927) (upholding validity of setback ordinance) (Sutherland, J.). There is no basis for treating the less than 2% of petitioners’ coal as a separate parcel of property.
We do not consider Justice Holmes’ statement that the Kohler Act made mining of “certain coal” commercially impracticable as requiring us to focus on the individual pillars of coal that must be left in place. That statement is best understood as referring to the Pennsylvania Coal Company‘s assertion that it could not undertake profitable anthracite coal mining in light of the Kohler Act. There were strong assertions in the record to support that conclusion. For example, the coal company claimed that one company was “unable to operate six large collieries in the city of Scranton, employing more than five thousand men.” Motion to Advance for Ar-
“At first blush, this language seems to suggest that the Court would have found a taking no matter how little of the defendants’ coal was rendered unmineable—that because ‘certain’ coal was no longer accessible, there had been a taking of that coal. However, when one reads the sentence in context, it becomes clear that the Court‘s concern was with whether the defendants’ ‘right to mine coal . . . [could] be exercised with profit.’ 260 U. S. at 414 (emphasis added). . . . Thus, the Court‘s holding in Mahon must be assumed to have been based on its understanding that the Kohler Act rendered the business of mining coal unprofitable.” 771 F. 2d, at 716, n. 6.
When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioners’ coal mining operations and financial-backed expectations, it is plain that petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of that property. The record indicates that only about 75% of petitioners’ underground coal can be profitably mined in any event, and there is no showing that petitioners’ reasonable “investment-backed expectations” have been materially affected by the additional duty to retain the small percentage that must be used to support the structures protected by § 4.27
The Support Estate
Pennsylvania property law is apparently unique in regarding the support estate as a separate interest in land that can be conveyed apart from either the mineral estate or the surface estate.28 Petitioners therefore argue that even if comparable legislation in another State would not constitute a taking, the Subsidence Act has that consequence because it entirely destroys the value of their unique support estate. It is clear, however, that our takings jurisprudence forecloses reliance on such legalistic distinctions within a bundle of property rights. For example, in Penn Central, the Court rejected the argument that the “air rights” above the terminal constituted a separate segment of property for Takings Clause purposes. 438 U. S., at 130. Likewise, in Andrus v. Allard, we viewed the right to sell property as just one element of the owner‘s property interest. 444 U. S., at 65-66. In neither case did the result turn on whether state law allowed the separate sale of the segment of property.
The Court of Appeals, which is more familiar with Pennsylvania law than we are, concluded that as a practical matter the support estate is always owned by either the owner of the surface or the owner of the minerals. It stated:
“The support estate consists of the right to remove the strata of coal and earth that undergird the surface or to leave those layers intact to support the surface and prevent subsidence. These two uses cannot co-exist and, depending upon the purposes of the owner of the support
estate, one use or the other must be chosen. If the owner is a mine operator, the support estate is used to exploit the mineral estate. When the right of support is held by the surface owner, its use is to support that surface and prevent subsidence. Thus, although Pennsylvania law does recognize the support estate as a ‘separate’ property interest, id., it cannot be used profitably by one who does not also possess either the mineral estate or the surface estate. See Montgomery, The Development of the Right of Subjacent Support and the ‘Third Estate’ in Pennsylvania, 25 Temple L. Q. 1, 21 (1951).” 771 F. 2d, at 715-716.
Thus, in practical terms, the support estate has value only insofar as it protects or enhances the value of the estate with which it is associated. Its value is merely a part of the entire bundle of rights possessed by the owner of either the coal or the surface. Because petitioners retain the right to mine virtually all of the coal in their mineral estates, the burden the Act places on the support estate does not constitute a taking. Petitioners may continue to mine coal profitably even if they may not destroy or damage surface structures at will in the process.
But even if we were to accept petitioners’ invitation to view the support estate as a distinct segment of property for “takings” purposes, they have not satisfied their heavy burden of sustaining a facial challenge to the Act. Petitioners have acquired or retained the support estate for a great deal of land, only part of which is protected under the Subsidence Act, which, of course, deals with subsidence in the immediate vicinity of certain structures, bodies of water, and cemeteries. See n. 6, supra. The record is devoid of any evidence on what percentage of the purchased support estates, either in the aggregate or with respect to any individual estate, has been affected by the Act. Under these circumstances, peti-
IV
In addition to their challenge under the Takings Clause, petitioners assert that § 6 of the Subsidence Act violates the Contracts Clause by not allowing them to hold the surface owners to their contractual waiver of liability for surface damage. Here too, we agree with the Court of Appeals and the District Court that the Commonwealth‘s strong public interests in the legislation are more than adequate to justify the impact of the statute on petitioners’ contractual agreements.
Prior to the ratification of the Fourteenth Amendment, it was
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold or silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
U. S. Const., Art. I, § 10 .
Unlike other provisions in the section, it is well settled that the prohibition against impairing the obligation of contracts is not to be read literally. W. B. Worthen Co. v. Thomas, 292 U. S. 426, 433 (1934). The context in which the Contracts Clause is found, the historical setting in which it was
As Justice Stewart explained:
“[I]t is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States. ‘It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.’ Manigault v. Springs, 199 U. S. 473, 480.”
As Mr. Justice
In assessing the validity of petitioners’ Contracts Clause claim in this case, we begin by identifying the precise contractual right that has been impaired and the nature of the statutory impairment. Petitioners claim that they obtained damages waivers for a large percentage of the land surface protected by the Subsidence Act, but that the Act removes the surface owners’ contractual obligations to waive damages. We agree that the statute operates as “a substantial impairment of a contractual relationship,” id., at 244, and therefore proceed to the asserted justifications for the impairment.31
The record indicates that since 1966 petitioners have conducted mining operations under approximately 14,000 structures protected by the Subsidence Act. It is not clear whether that number includes the cemeteries and water courses under which mining has been conducted. In any event, it is petitioners’ position that, because they contracted
Of course, the finding of a significant and legitimate public purpose is not, by itself, enough to justify the impairment of contractual obligations. A court must also satisfy itself that the legislature‘s “adjustment of ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation‘s] adoption.‘” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 412 (1983) (quoting United States Trust Co. v. New Jersey, 431 U. S. 1, 22 (1977)). But, we have repeatedly held that unless the State is itself a contracting party, courts should “‘properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.‘” Energy Reserves Group, Inc., 459 U. S., at 413 (quoting United States Trust Co., 431 U. S., at 23).
The judgment of the Court of Appeals is
Affirmed.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE O‘CONNOR, and JUSTICE SCALIA join, dissenting.
More than 50 years ago, this Court determined the constitutionality of Pennsylvania‘s Kohler Act as it affected the property interests of coal mine operators. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922). The Bituminous Mine Subsidence and Land Conservation Act approved today effects an interference with such interests in a strikingly similar manner. The Court finds at least two reasons why this case is different. First, we are told, “the character of the governmental action involved here leans heavily against finding a taking.” Ante, at 485. Second, the Court concludes that the Subsidence Act neither “makes it impossible for peti-
I
In apparent recognition of the obstacles presented by Pennsylvania Coal to the decision it reaches, the Court attempts to undermine the authority of Justice Holmes’ opinion as to the validity of the Kohler Act, labeling it “uncharacteristically . . . advisory.” Ante, at 484. I would not so readily dismiss the precedential value of this opinion. There is, to be sure, some language in the case suggesting that it could have been decided simply by addressing the particular application of the Kohler Act at issue in the case. See, e. g., Pennsylvania Coal, supra, at 414 (“If we were called upon to deal with the plaintiffs’ position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant‘s constitutionally protected rights“). The Court, however, found that the validity of the Act itself was properly drawn into question: “[T]he case has been treated as one in which the general validity of the [Kohler] act should be discussed.” Ibid.1 The coal company clearly had an interest in obtaining a determination that the Kohler Act was unenforceable if it worked a taking without providing for compensation. For
The Court‘s implication to the contrary is particularly disturbing in this context, because the holding in Pennsylvania Coal today discounted by the Court has for 65 years been the foundation of our “regulatory takings” jurisprudence. See Penn Central Transportation Co. v. New York City, 438 U. S. 104, 127 (1978); D. Hagman & J. Juergensmeyer, Urban Planning and Land Development Control Law 319 (2d ed. 1986) (”Pennsylvania Coal was a monumental decision which remains a vital element in contemporary taking law“). We have, for example, frequently relied on the admonition that “if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal, supra, at 415. See, e. g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 348 (1986); Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1003 (1984); PruneYard Shopping Center v. Robins, 447 U. S. 74, 83 (1980); Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962); United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958). Thus, even were I willing to assume that the opinion in Pennsylvania Coal standing alone is reasonably subject to an interpretation that renders more than half the discussion “advisory,” I would have no doubt that our repeated reliance on that opinion establishes it as a cornerstone of the jurisprudence of the Fifth Amendment‘s Just Compensation Clause.
I accordingly approach this case with greater deference to the language as well as the holding of Pennsylvania Coal than does the Court. Admittedly, questions arising under the Just Compensation Clause rest on ad hoc factual inquiries, and must be decided on the facts and circumstances in each case. See Penn Central Transportation Co. v. New York City, supra, at 124; United States v. Central Eureka Mining Co., supra, at 168. Examination of the relevant factors presented here convinces me that the differences be-
II
The Court first determines that this case is different from Pennsylvania Coal because “the Commonwealth of Pennsylvania has acted to arrest what it perceives to be a significant threat to the common welfare.” Ante, at 485. In my view, reliance on this factor represents both a misreading of Pennsylvania Coal and a misunderstanding of our precedents.
A
The Court opines that the decision in Pennsylvania Coal rested on the fact that the Kohler Act was “enacted solely for the benefit of private parties,” ante, at 486, and “served only private interests.” Ante, at 484. A review of the Kohler Act shows that these statements are incorrect. The Pennsylvania Legislature passed the statute “as remedial legislation, designed to cure existing evils and abuses.” Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 495, 118 A. 491, 492 (1922) (quoting the Act). These were public “evils and abuses,” identified in the preamble as “wrecked and dangerous streets and highways, collapsed public buildings, churches, schools, factories, streets, and private dwellings, broken gas, water and sewer systems, the loss of human life. . . .” Id., at 496, 118 A., at 493.2 The Pennsylvania Supreme Court recognized that these concerns were “such as to create an emergency, properly warranting the exercise of the police power. . . .” Id., at 497, 118 A., at 493. There can be
no doubt that the Kohler Act was intended to serve public interests.
Though several aspects of the Kohler Act limited its protection of these interests, see Pennsylvania Coal, 260 U. S., at 414, this Court did not ignore the public interests served by the Act. When considering the protection of the “single private house” owned by the Mahons, the Court noted that “[n]o doubt there is a public interest even in this.” Id., at 413 (emphasis added). It recognized that the Act “affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved.” Id., at 414. See also id., at 416 (“We assume . . . that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain“). The strong public interest in the stability of streets and cities, however, was insufficient “to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Ibid. Thus, the Court made clear that the mere existence of a public purpose was insufficient to release the government from the compensation requirement: “The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation.” Id., at 415.
The Subsidence Act rests on similar public purposes. These purposes were clearly stated by the legislature: “[T]o aid in the protection of the safety of the public, to enhance the value of [surface area] lands for taxation, to aid in the preservation of surface water drainage and public water supplies and generally to improve the use and enjoyment of such lands. . . .”
B
The similarity of the public purpose of the present Act to that in Pennsylvania Coal does not resolve the question whether a taking has occurred; the existence of such a public purpose is merely a necessary prerequisite to the government‘s exercise of its taking power. See Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 239-243, 245 (1984); Berman v. Parker, 348 U. S. 26, 32-33 (1954). The nature of these purposes may be relevant, for we have recognized that a taking does not occur where the government exercises its unquestioned authority to prevent a property owner from using his property to injure others without having to compensate the value of the forbidden use. See Goldblatt v. Hempstead, 369 U. S. 590 (1962); Hadacheck v. Sebastian, 239 U. S. 394 (1915); Mugler v. Kansas, 123 U. S. 623 (1887). See generally Penn Central Transportation Co. v. New York City, 438 U. S., at 144-146 (REHNQUIST, J., dissenting). The Court today indicates that this “nuisance exception” alone might support its conclusion that no taking has occurred. Despite the Court‘s implication to the contrary, see ante, at 485-486, and n. 15, the legitimacy of this purpose is a question of federal, rather than state, law, subject to independent scrutiny by this Court. This statute is not the type of regulation that our precedents have held to be within the “nuisance exception” to takings analysis.
The ease with which the Court moves from the recognition of public interests to the assertion that the activity here regulated is “akin to a public nuisance” suggests an exception far wider than recognized in our previous cases. “The nuisance exception to the taking guarantee,” however, “is not coterminous with the police power itself,” Penn Central Transportation, supra, at 145 (REHNQUIST, J., dissenting), but is a narrow exception allowing the government to prevent “a misuse or illegal use.” Curtin v. Benson, 222 U. S. 78, 86 (1911). It is not intended to allow “the prevention of a legal and essential use, an attribute of its ownership.” Ibid.
The narrow nature of this exception is compelled by the concerns underlying the
Thus, our cases applying the “nuisance” rationale have involved at least two narrowing principles. First, nuisance regulations exempted from the
Second, and more significantly, our cases have never applied the nuisance exception to allow complete extinction of the value of a parcel of property. Though nuisance regulations have been sustained despite a substantial reduction in value, we have not accepted the proposition that the State may completely extinguish a property interest or prohibit all use without providing compensation. Thus, in Mugler v. Kansas, supra, the prohibition on manufacture and sale of intoxicating liquors made the distiller‘s brewery “of little value” but did not completely extinguish the value of the building. Similarly, in Miller v. Schoene, 276 U. S. 272 (1928), the individual forced to cut down his cedar trees nevertheless was able “to use the felled trees.” Penn Central Transportation Co. v. New York City, supra, at 126. The
Here, petitioners’ interests in particular coal deposits have been completely destroyed. By requiring that defined seams of coal remain in the ground, see ante, at 476-477, and n. 7,
Though suggesting that the purposes alone are sufficient to uphold the Act, the Court avoids reliance on the nuisance exception by finding that the Subsidence Act does not impair petitioners’ investment-backed expectations or ability to profitably operate their businesses. This conclusion follows mainly from the Court‘s broad definition of the “relevant mass of property,” ante, at 497, which allows it to ascribe to the Subsidence Act a less pernicious effect on the interests of the property owner. The need to consider the effect of regulation on some identifiable segment of property makes all important the admittedly difficult task of defining the relevant
III
The Pennsylvania Coal Court found it sufficient that the Kohler Act rendered it “commercially impracticable to mine certain coal.” 260 U. S., at 414. The Court, ante, at 498, observes that this language is best understood as a conclusion that certain coal mines could not be operated at a profit. Petitioners have not at this stage of the litigation rested their claim on similar proof; they have not “claimed that their mining operations, or even any specific mines, have been unprofitable since the Subsidence Act was passed.” Ante, at 496. The parties have, however, stipulated for purposes of this facial challenge that the Subsidence Act requires petitioners to leave in the ground 27 million tons of coal, without compensation therefor. Petitioners also claim that the Act extinguishes their purchased interests in support estates which allow them to mine the coal without liability for subsidence. We are thus asked to consider whether these restrictions are such as to constitute a taking.
A
The Court‘s conclusion that the restriction on particular coal does not work a taking is primarily the result of its view that the 27 million tons of coal in the ground “do not constitute a separate segment of property for takings law purposes.” Ante, at 498. This conclusion cannot be based on the view that the interests are too insignificant to warrant protection by the
Our decisions establish that governmental action short of physical invasion may constitute a taking because such regulatory action might result in “as complete [a loss] as if the [government] had entered upon the surface of the land and taken exclusive possession of it.” United States v. Causby, 328 U. S. 256, 261 (1946). Though the government‘s direct benefit may vary depending upon the nature of its action, the question is evaluated from the perspective of the property holder‘s loss rather than the government‘s gain. See ibid.; United States v. General Motors Corp., 323 U. S. 373, 378 (1945); Boston Chamber of Commerce v. Boston, 217 U. S. 189, 195 (1910). Our observation that “[a] ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government,” Penn Central Transportation Co. v. New York City, supra, at 124, was not intended to alter this perspective merely because the claimed taking is by regulation. Instead, we have recognized that regulations — unlike physical invasions — do not typically extinguish the “full bundle” of rights in a particular piece of property. In Andrus v. Allard, 444 U. S. 51, 66 (1979), for example, we found it crucial that a prohibition on the sale of avian artifacts destroyed only “one ‘strand’ of the bundle” of property rights, “because the aggregate must be viewed in its entirety.” This characteristic of regulations frequently makes unclear the breadth of their impact on identifiable segments of property, and has required that we evaluate the effects in light of the “several factors” enumerated in Penn Central Transportation Co.: “The economic impact of the regulation on the claimant, the extent to which the regulation has interfered with investment-backed expectations, [and] the character of the governmental action.” 438 U. S., at 124.
In this case, enforcement of the Subsidence Act and its regulations will require petitioners to leave approximately 27 million tons of coal in place. There is no question that this coal is an identifiable and separable property interest. Unlike many property interests, the “bundle” of rights in this coal is sparse. “For practical purposes, the right to coal consists in the right to mine it.” Pennsylvania Coal, 260U. S., at 414, quoting Commonwealth ex rel. Keator v. Clearview Coal Co., 256 Pa. at 331, 100 A. at 820. From the relevant perspective — that of the property owners — this interest has been destroyed every bit as much as if the government had proceeded to mine the coal for its own use. The regulation, then, does not merely inhibit one strand in the bundle, cf. Andrus v. Allard, supra, but instead destroys completely any interest in a segment of property. In these circumstances, I think it unnecessary to consider whether petitioners may operate individual mines or their overall mining operations profitably, for they have been denied all use of 27 million tons of coal. I would hold that
B
Petitioners also claim that the Subsidence Act effects a taking of their support estate. Under Pennsylvania law, the support estate, the surface estate, and the mineral estate are “three distinct estates in land which can be held in fee simple separate and distinct from each other. . . .” Captline v. County of Allegheny, 74 Pa. Commw. 85, 91, 459 A. 2d 1298, 1301 (1983), cert. denied, 466 U. S. 904 (1984). In refusing to consider the effect of the Subsidence Act on this property interest alone, the Court dismisses this feature of Pennsylvania property law as simply a “legalistic distinctio[n] within a bundle of property rights.” Ante, at 500. “Its value,” the Court informs us, “is merely a part of the entire bundle of rights possessed by the owner of either the coal or the surface.” Ante, at 501. See also 771 F. 2d 707, 716 (1985) (“To focus upon the support estate separately . . . would serve little purpose“). This view of the support estate allows the Court to conclude that its destruction is merely the destruction of one “strand” in petitioners’ bundle of property rights, not significant enough in the overall bundle to work a taking.
Contrary to the Court‘s approach today, we have evaluated takings claims by reference to the units of property defined
I see no reason for refusing to evaluate the impact of the Subsidence Act on the support estate alone, for Pennsylvania has clearly defined it as a separate estate in property. The Court suggests that the practical significance of this estate is limited, because its value “is merely part of the bundle of rights possessed by the owner of either the coal or the surface.” Ante, at 501. Though this may accurately describe the usual state of affairs, I do not understand the Court to mean that one holding the support estate alone would find it worthless, for surely the owners of the mineral or surface es
When held by owners of the mineral estate, the support estate “consists of the right to remove the strata of coal and earth that undergird the surface. . . .” 771 F. 2d, at 715. Purchase of this right, therefore, shifts the risk of subsidence to the surface owner.
IV
In sum, I would hold that Pennsylvania‘s Bituminous Mine Subsidence and Land Conservation Act effects a taking of petitioners’ property without providing just compensation. Specifically, the Act works to extinguish petitioners’ interest
Notes
“Protection of surface structures against damage from cave-in, collapse, or subsidence
“In order to guard the health, safety and general welfare of the public, no owner, operator, lessor, lessee, or general manager, superintendent or other person in charge of or having supervision over any bituminous coal mine shall mine bituminous coal so as to cause damage as a result of the caving-in, collapse or subsidence of the following surface structures in place on April 27, 1966, overlying or in the proximity of the mine:
“(1) Any public building or any noncommercial structure customarily used by the public, including but not being limited to churches, schools, hospitals, and municipal utilities or municipal public service operations.
“(2) Any dwelling used for human habitation; and
“(3) Any cemetery or public burial ground; unless the current owner of the structure consents and the resulting damage is fully repaired or compensated.”
In response to the enactment in 1977 of the Federal Surface Mining Control and Reclamation Act, 91 Stat. 445,
“(a)(1) public buildings and non-commercial buildings customarily used by the public [after April 27, 1966], including churches, schools, hospitals, courthouses, and government offices;
Indeed, we rejected the claim that the Supremacy Clause allowed Congress to dictate that the effect of its regulation “not vary depending on the property law of the State in which the submitter [of trade-secret information] is located. . . . If Congress can ‘pre-empt’ state property law in the manner advocated . . . , then the Taking Clause has lost all vitality.” Ruckleshaus v. Monsanto Co., 467 U. S., at 1012.“(4) perennial streams and impoundments of water with the storage volume of 20 acre feet;
“(5) aquifers which serve as a significant source of water supply to any public water system; and
“(6) coal refuse disposa[l]” areas. 25 Pa. Code §§ 89.145(a) and 89.146 (b) (1983).
The regulations define the zone for which the 50% rule applies:
“(2) The support area shall be rectangular in shape and determined by projecting a 15 degree angle of draw from the surface to the coal seam, beginning 15 feet from each side of the structure. For a structure on a surface slope of 5.0% or greater, the support area on the downslope side of the structure shall be extended an additional distance, determined by multiplying the depth of the overburden by the percentage of the surface slope.” § 89.146(b)(2).
However, this 50% requirement is neither an absolute floor nor ceiling. It may be waived by the Department upon a showing that alternative measures will prevent subsidence damage. § 89.146(b)(5). Alternatively, more stringent measures may be imposed, or mining may be prohibited, if it appears that leaving 50% of the coal in place will not provide adequate support. § 89.146(b)(4).
It is clear that under Pennsylvania law, “one person may own the coal, another the surface, and the third the right of support.” Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32 A. 2d 227, 234-235 (1943).This assumption was not unreasonable in view of the fact that the Kohler Act may be read to prohibit mining that causes any subsidence—not just subsidence that results in damage to surface structures. The record in this case indicates that subsidence will almost always occur eventually. See n. 8, supra.
However, as the current CHIEF JUSTICE has explained: “The nuisance exception to the taking guarantee is not coterminous with the police power itself.” Penn Central Transportation Co., 438 U. S., at 145 (REHNQUIST, J., dissenting). This is certainly the case in light of our recent decisions holding that the “scope of the ‘public use’ requirement of the Takings Clause is ‘coterminous with the scope of a sovereign‘s police powers.‘” See Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1014 (1984) (quoting Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 240 (1984)). See generally R. Epstein, Takings 108-112 (1985).
- “Violate the Rule of the Mahon Decision[,]
- “Constitute Per Se Takings,
- “Violate Article I, § 10 of the Constitution of the United States.” App. 12.