[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.