CADDNAR


[CITE: Peabody v. DNR, 3 CADDNAR 90 (1986)]

 

[VOLUME 3, PAGE 90]

 

 

Cause #: 85-113R

Capton: Peabody v. DNR
Administrative Law Judge: Shadley
Attorneys: Joest; Spicker, DAG
Date: March 19, 1986

ORDER

 

 NOTE: THE UNDERLYING CAUSE WAS AFFIRMED ON JUDICIAL REVIEW IN THE PUTNAM CIRCUIT COURT ON APRIL 16, 1986] [NOTRE: THE JUDGMENT BY THE TRAIL COURT (AND THE FINAL ORDER OF THE OMMISSION) WAS AFFIRMED BY Peabody Coal Co., Inc v. Ridenour, 515 N.E.2d 1163 (Ind.App. 1987).]

 
Respondent's Motion Summary Decision is granted and the Director's determination that an IC 13-4.1 permit is required for the area of land used as a "walkway" for a dragline to move from one surface coal mining operation to another is affirmed.

 


FINDINGS OF FACT

 

1. On May 20, 1985, Peabody Coal Company ("Peabody") requested review of the Director of the Department of Natural Resources, determination that an IC 13-4.1 permit was required for the area of land used as a "walkway" for a dragline to move from one surface coal mining operations to another.

 

2. IC 4-22-1-25 and 13-4.1 apply to this proceeding.

 

3. The Department of Natural Resources is an agency as defined in IC 4-22-1. The Natural Resources Commission ("Commission") is the ultimate authority of the Department with respect to proceedings involving surface coal mining permits.

 

4. The Commission has jurisdiction over the subject matter and the parties to this proceeding.

 

5. On September 23, 1985, the Department of Natural Resources ("DNR") filed a Response in Opposition to Peabody's Motion for Summary Decision and a Motion for Summary Decision in favor of Respondent.

 

6. [Editor’s note: A review of archived records did not provide information regarding omission of this finding.]

 

7. IC 13-4.1-3-1 requires a surface coal mining and reclamation permit be obtained prior to opening, developing, or operating a new or previously mined or abandoned site for surface coal mining operations.

 

8. IC 13-4.1-1-3(12) defines a surface coal mining operations as follows:

 

(A) Activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements of IC 13-4.1-9 surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. These activities include excavation for the purpose of obtaining coal including such common methods as contour, strip, auger, hilltop removal, box cut, open pit, and area mining, the use of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other physical processing or preparation, loading of coal for interstate commerce at or near the mine site. However, these activities do not include the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds (16 2/3) percent of the tonnage of minerals removed for purposes of commercial use of sale or coal explorations subject to IC 13-4.1-7.

(B) The areas upon which mining activities occur or where mining activities disturb the natural land surface. Those areas also include and adjacent land the use of which is incidental to any mining activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of mining activities and for haulage, and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to mining activities.

 

9. Five possible phrases in the definition of surface coal mining operation address whether or not a dragline walkway is a surface coal mining operation.

 

a) Activities conducted on the surface of land in connection with a surface coal mine. . .

b) The areas upon which mining activities occur or where mining activities disturb the natural land surface.

c). . .adjacent land the use of which is incidental to any mining activities. . .

d). . . ., all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of mining activities and for haulage, . . .

e). . . .and other areas upon which are sited structures, facilities, or other property or

 

[VOLUME 3, PAGE 91]

 

materials on the surface, resulting from or incidental to mining activities.

 

10. [Editor’s note: A review of archived records did not provide information regarding omission of this finding.]

 

11. In May and June of 1985 Peabody moved a Marion 8900 dragline under its own power from its Dugger Mine to its Hawthorn Mine. Both mines are located in Sullivan County.

 

12. This activity is not "an activity conducted on the surface of land in connection with a surface coal mine" as contained in IC 13-4.1-1-3(12)(A).[FOOTNOTE 1]

 

13. This activity is not included under the phrase in IC 13-4.1-1-(12) (B), "The areas upon which the activities occur or where mining activities disturb the natural land surface."[FOOTNOTE 2]

 

14. The dragline walkway was located over fields and did not follow and existing roads, although it did cross county roads at several locations.

 

15. The dragline was accompanied by most of the mobile equipment from Dugger Mine: bulldozers, scrapers, two coal loading shovels, two overburden drills, a utility dragline and miscellaneous other items.

 

16. The move lasted approximately three (3) weeks.

 

17. The walkway was located for most of its length on land owned by Peabody, although it also crossed land owned by Meadowlark Farms, Inc. Which was leased to Peabody, and lands owned by one other individual who granted a temporary right-of-way easement to Peabody.

 

18. The disturbance created by the dragline walkway was confined to a width of about two hundred (200) feet and will be completely restored within twelve months from the move.

 

19. This activity is not "land affected by the construction o f new roads to gain access to the site of mining activities and for haulage.[FOOTNOTE 3]

 

20. This activity is not a surface coal mining operation by virtue of the phrase "areas upon which are sited structures, facilities or other property or material on the surface resulting from or incidental to mining activities."[FOOTNOTE 4]

 

21. The walkway was approximately ten (10) miles in length from the Dugger Pit to the new mining location. Approximately five (5) miles of this length was within the boundaries of the existing surface mining permits for Dugger and Hawthorn.

 

22. This walkway is "adjacent land", as the term is used in IC 13-4.1-1-3(12) (B).[FOOTNOTE 5]

 

23. Creation and use of this walkway is adjacent land the use of which is incidental to any mining activities, as used in IC 13-4.1-1-3(12) (b).[FOOTNOTE 6]


FOOTNOTES


1. The proper statutory construction of this phrase, using the rule of statutory construction known as ejusdem generis is that only those activities of the type of class following the word "include" are activities to be included in this portion of the definition. Since all of the activities following the word "include" are either types of surface mining (IE. Excavation, processing, loading), this activity, movement of a piece of mining equipment, is not of the dame type of class and is not therefore covered under this phrase.

2. This phrase in the definition does not cover activities in addition to those identified in (A). It merely clarifies that the land upon which those activities occur or land that is disturbed by those activities is included in the definition of surface coal mining operation.

3. This finding is made because even if a "road" as defined in 310 IAC 12-1-3, it will never be used for haulage. The conjunctive "and" requires that a road must be used both for access and for haulage before it falls within the definition of surface coal mining operations.

[VOLUME 3, PAGE 92]

4. The dragline and the mobile equipment moved along the walkway, it was not placed in a stationary location for a fixed period of time on the walkway. This phrase in the definition is intended to incorporate structures, facilities, materials or property resulting from or incidental to mining which have been placed in a stationary position for a fixed period of time.

5. Neither IC 13-4.1 nor 310 IAC 12 define "adjacent land." A review of case law reveals there is no fixed meaning of the word "adjacent", but that it generally depends on the context in which it is used and the legislative purpose to be accomplished. Both parties agree that the term is generally defined as lying near or close, but not necessarily in contact with or contiguous. The Department refers the Administrative Law Judge to case law developed in the context of challenges to the Federal Surface Coal Mining regulations.

 

In In Re: Permanent Surface Mining reclamation Litigation II, (JULY 6, 1984) Judge Thomas Flannery opines that the definition of Surface Coal Mining Operations is extremely broad, and invalidates a regulation stating that the Secretary of the Interior is powerless to limit that statutory definition. Further the Department points to the purposes listed in ILC 13-4.1-1-2, specifically

 

(1) to implement Public Law 95-87, the Federal Surface Coal Mining and Reclamation Act,

(2) to establish a statewide program to protect society and the environment from the adverse affects of surface coal mining operations,

(3) to assure that surface mining operations are not conducted where reclamation is not feasible,

(4) to assure that surface coal mining operations are conducted so as to protect the environment,

(5) to assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the coal mining operations,

(6) to assure that appropriate procedures are provided for public participation in the development plans or programs established by the state and

(7) wherever necessary, exercise the full reach of the state constitutional powers to insure the protection of the public interest through effective control of surface coal mining operations.

 

The Department thus argues adjacent should be interpreted to include this dragline walkway. Peabody argues use of the listed purposes of IC 13-4.1 begs the question as all of the purposes listed use the term surface coal mining operation, which is the very question to be answered in this proceeding. Peabody further points the permit application and permit application rules do not easily fit this situation, less than fifty (50) percent being applicable, and argues this shows a legislative intent to not include the walkway in this definition. Peabody further states there was lengthy Federal legislative history concerning the adverse affects of access roads, and the evils resulting therefrom but points out the Federal legislative history is absolutely silent on walkways, which it again argues reflects that the legislature did not intend to include walkways. Finally Peabody points out that where adjacent is used in the rules for submission of information in the permit application, the Department generally uses one thousand (1000) feet as being adjacent. I believe after reviewing all the information and arguments made, that adjacent. I believe after reviewing all the information and arguments made, that adjacent should be construed in this context to include the land within this roadway. In Old Fashion Baptist Church v. Montana Department of Revenue, 671 P2d (1983), a court found that a church access road was "adjacent land" reasonably necessary for the convenient use of church building and thus exempt from property tax. Similarly in this case, the walkway lying between two surface coal mining operations, used for an activity which would not have occurred but for the mining of coal, should be found to be land adjacent to mining activities as used in IC 13-4.1-1-3(12)(B)

6. “Incidental to” is not a term defined by IC 13-4.1 nor 310 IAC 12. Peabody argues that “incidental to” must be defined in terms of a normal consequence of the thing to which it is incidental and argues that movement of a dragline across the land under its own power is not a normal occurrence, but in fact very rare. The Department argues “incidental to” is a functional relationship between the two activities or events, citing Black’s Law Dictionary definition as something necessary to another, and the example of a corporation’s incidental powers, within the rule that a corporation possesses only those powers which its charter confers upon it, either as are directly and immediately appropriate to the execution of the powers expressly granted and which exist only to enable the corporation to carry out the purpose of its creation.  The Department points out the “but for” the mining activity at both mines, this walkway would not have been created and used. Both parties rely on Capitol Paper Company v. Conner, 81 Ind. App. 545, 144 N.E. 2d 474 (1924) in support of their position. Where Peabody cites it in support of its argument that “incidental to” is not just a causal relationship, but a normal or usual consequence of the primary activity, the Department points out in this case traversing or use of adjacent land by mining equipment is a normal consequence of utilizing that equipment on one permit and subsequently requiring its use on another, that disturbance of a natural land surface is a normal or usual consequence of moving a dragline and that in Capitol Paper it was found that even though normally at the time and upon the day he was struck, he would have been in a different part of city, the resulting injury was as a result of danger “incidental to” his employment. In Capitol Paper a traveling salesman, required to use city streets in the performance of his duties, when injured by a street car, was found to have been injured as a result of a danger “incidental to” employment for Workmen’s Compensation Act purposes. It is my conclusion that in this instance, the movement of the dragline under its own power from Peabody’s Dugger Mine to its Hawthorn Mine, was an activity “incidental to any mining activities.” Not only was there a functional, causal relationship between the creation of this dragline walkway and the mining activities which occurred and which were to occur at the two mines, this activity is a normal consequence of surface coal mining operations, in terms of it being the use of the surface of land to move equipment used by a surface coal mining operation, and the disturbance of that land solely for the purpose of making surface coal mining possible.

____________________________________________________________________

[NOTE: CADDNAR citation does not apply to entry below.]

 

 

Putnam Circuit Court

 

On April 16, 1986 Judge William C. Vaughn III, Putnam Circuit Court, issued judgment on cause number CV-86-304 as follows:

FINDINGS OF FACT

 

1. Plaintiff is Peabody Coal Company which holds surface coal mining permits in the state of Indiana and which has, and does now, conduct surface coal mining operations in the State of Indiana.

 

2. Plaintiff Peabody Coal Company, at all times relevant to this litigation, held, and still holds, Indiana Surface Coal Mining Permit No. S-00017 for its Dugger Mine located in Sullivan County, Indiana, and Indiana Surface Coal Mining Permit No. S-00010 for its Hawthorn mine located in Sullivan County, Indiana. The area of land that is the subject of this litigation lies between these permits in Sullivan County, Indiana.

 

3. Defendants are the Director of the Indiana Department of Natural Resources and the Indiana Natural Resources Commission.

 

4. In October 1984 Plaintiff inquired of Defendants whether Defendants would require that Peabody apply for and receive from the Indiana Department of Natural Resources a surface coal mining permit to cover that area of still unpermitted land between the Peabody Dugger and Hawthorn mines across which Peabody proposed to move under its own power its Marion 8900 dragline as well as other equipment. The equipment to be moved had been used for surface coal mining at Dugger and was about to be used for purposes of surface mining coal at Hawthorn.

 

5. The walkway distance between Dugger and Hawthorne was to be approximately ten (10) miles in length.

 

6. Department officials concluded that permitting would be necessary because the proposed activity came within the definition of "surface coal mining operation" under IC 13-4.1. Peabody was informed of this initial agency determination by letter dated January 8, 1985.

 

7. On May 20, 1985, Peabody filed a request for administrative review of this decision pursuant to IC 4-22-1 but applied for and received a state surface coal mining permit anyway.

 

8. The equipment move took place in May and June of 1985 over a period of approximately three weeks. Peabody moved, under its own power, the dragline used to surface mine coal at Dugger to its Hawthorne mine for purposes of surface coal mining at Hawthorne. The dragline was accompanied by most of the mobile equipment from the Dugger mine: bulldozers, scrapers, two coal loading shovels, two overburden drills, a utility dragline, and miscellaneous other items.

 

9. The walkway was approximately then (10) miles in length from the Dugger pit to the new mining location. Approximately five (5) miles of this length was within the boundaries of the existing surface mining permits for Dugger and Hawthorne. The walkway abutted the old mining location (Dugger) at one end and the new mining location (Hawthorne) at the other.

 

10. In addition to the actual movement of the coal Mine equipment the ground between the two surface coal mines was further disturbed by Peabody to facilitate the passage of this equipment where "at some places it was necessary to level the ground by cutting and filling, and some wet material was removed where it could not safely bear the machine's weight. . . . due to unusually wet conditions, the movement of the dragline caused more disturbance to parts of the walkway" than Peabody had anticipated. (Plaintiff's Brief, p. 3).

 

11. The walkway existed only to enable the dragline to gain access to the site of mining activities; it existed only for the purpose of enabling the dragline and other mining equipment to carry out the purpose of their creation at the site of the mining activities. Its use occurred to facilitate mining at Hawthorne and used as a consequence of the mining activity at Dugger.

 

12. Peabody continued to pursue its administrative challenge to the agency decision; however, after briefing and oral argument the Natural Resources Commission adopted the Administrative Law Judge's Recommended Order affirming the Director's determination that a permit for the unpermitted land traversed by the dragline and other mining equipment was required.

 

13. The Natural Resources Commission found that a surface coal mining permit was required by Peabody in order to conduct this activity because the definition of surface coal mining operations in IC 13-4.1-1-3(12) and 310 IAC 12-1-3 apply.

 

14. Peabody filed a Verified Petition for Judicial Review in the Sullivan County Circuit Court on May 7, 1986; the action was subsequently venued to the Putnam Circuit Court.

 

CONCLUSION OF LAW

 

1. Director James M. Ridenour issued in his capacity as Director of the Department of Natural Resources. The Department of Natural Resources is an agency as defined in IC 4-22-1. The Natural Resources Commission is the ultimate authority of the Department with respect to proceedings involving Indiana surface coal mining permits and is an agency within the meaning of IC 4-22-1.

 

2. IC 4-22-1 and IC 13-4.1 apply to this proceeding.

 

3. This court has jurisdiction over the parties and subject matter of this action pursuant to IC 4-22-1 and IC 13-4.1.

 

4. IC 13-4.1-3-1 requires a surface coal mining and reclamation permit be obtained prior to opening, developing, or operating a new or previously mined or abandoned site for surface coal mining operations.

 

5. IC 13-4.1-1-3(12) defines a surface coal mining operation as follows:

 

(A) activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements of IC 13-4.1-9 surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. These activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, hilltop removal, boxcut, open pit, and area mining, the extraction of coal from coal refuse piles, the use of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation of coal. These activities also include the loading of coal for interstate commerce at or near the mine site. However, these activities do not include the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent (16 2/3%) of the tonnage of minerals removed for the purposes of commercial use of sale or coal explorations subject to IC 13-4.1-7.

(B) The areas upon which mining activities occur or where mining activities disturb the natural land surface. Those areas also include any adjacent land the use of which is incidental to any mining activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of mining activities and for haulage, and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to mining activities.

 

6. Five possible phrases in the definition of surface coal mining operation address whether or not a dragline walkway is a surface coal mining operation.

 

7. Those phrases are:

 

(a)activities conducted on the surface of land in connection with a surface coal mine. . .

(b) The areas upon which mining activities occur or where mining activities disturb the natural land surface.

(c). . .adjacent land the use of which
is incidental to any mining activities. . .

(d). . .all lands affected by the construction of new roads
or the improvement or use of existing roads to gain access to the site of mining activities and for haulage. . .

(e). . .and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to mining activities.

 

8. The subject dragline--or coal mining equipment--walkway is "adjacent land", as the term is used in IC 13-4.1-1-3(12)(B).

 

9. The use of the subject land which was adjacent to two Peabody Surface Coal Mines where mining activities took place was "incidental to" mining activities on the adjacent areas.

 

10. Creation and use of the coal mining equipment walkway constituted a "surface coal mining operation" within the meaning of IC 13-4.1-1-3(12) and 310 IAC 13-1-3 and therefore required that Peabody apply for and receive a state-issued surface coal mining permit for the conduct and use of such activities and areas.

 

11. Because the activities carried on by Peabody clearly constituted a "surface coal mining operation" under IC 13-4.1-1-3(12) (B) as expressed in "Phrase C" of Conclusion &, supra, and as found by Defendants (Commission Finding 23), there is no need to reach the question of whether and other language of IC 13-4.1-1-3(12) encompasses the activities or areas that are the subject of this litigation and would therefore have required that Plaintiff apply for and receive a state permit.

 

12. The State lawfully required that the Plaintiff apply for and receive a surface coal mining permit from the Indiana Department of Natural Resources to conduct the activities it did. 13. The decision of the Natural Resources Commission is in accordance with law and is affirmed. Judgment will be entered accordingly.

JUDGMENT

 

This matter comes before the Court for judicial review of an administrative agency decision pursuant to IC 4-22-1 and the Court having reviewed the record of agency proceedings and the briefs of the parties, having heard oral argument, and having made specific Findings of Fact and Conclusions of Law which are in words and figures as follows, to-wit: (H.I.)

 

The Court now finds and determines that the final decision of Defendants are in accordance with law and is hereby affirmed. IT IS, THEREFORE, ORDERED AND ADJUDGED that the final decision of the Natural Resources Commission entered an April 24, 1986 requiring the permitting of Plaintiff's dragline walkway is hereby affirmed. IT IS FURTHER ORDERED AND ADJUDGED the Defendants recover from Plaintiff its costs expended in this action, and the Clerk of this Court is directed to tax costs against Plaintiff.