[CITE: Ind. Coal Council & HUMER v. DNR, et al. (Beehunter),
3 CADDNAR 81 (1986)]
[VOLUME 3, PAGE 81]
Cause #: 85-261R
Caption: Ind. Coal Council
& HUMER v. DNR, et al. (Beehunter)
Administrative Law Judge: Shadley (pre-AAA Hearing: Lucas)
Attorneys: Maguire and Joest, (Coal Council); Buthod
(HUMER); Szostek, DAG; Huston and Hamilton (Wabash
Valley Arch. Society and ICCIA)
Date: January 3, 1986
ORDER
[NOTE: JUDICIAL REVIEW WAS
TAKEN TO DUBOIS CIRCUIT COURT (OPINION FOLLOWS ADMINISTRATIVE DECISION). DNR
AND OTHERS APPEALED TO INDIANA SUPREME COURT, WHICH REINSTATED AGENCY
DETERMINATION IN Department of Natural
Resources v. Indiana Coal Council, Inc. (Ind. 1989), 542 N.E.2d 1000.]
The Beehunter Site is hereby designated unsuitable for the
conduct of surface coal mining operations, provided however, the site is not
unsuitable for underground mining activities where there would be no surface
affects within the boundaries of the Beehunter site,
nor is it unsuitable for mining, pursuant to an approved auger mining plan. The
unsuitable designation will terminate if I find that a program for data
recovery has been implemented in accordance with the requirements set forth in
the Appendix attached hereto. [Note: Appendix not included in this CADDNAR
entry.]
FINDINGS OF FACT
1. On
November 19, 1985, the director of the department of natural resources (the
"Director"), pursuant to petition, issued an initial determination,
the Beehunter site is a land unsuitable for surface
coal mining, as provided for in IC 4-22-1-25, IC 13-4.1-14 and 310 IAC 12-2.
2.
On December 2, 1985, the Indiana Coal Council, Inc. ("ICC") filed
objections to the Director's initial determination and requested that a hearing
be conducted pursuant to IC 4-22-1 and 310 IAC 0.5 prior to entry of a final
order.
3.
On December 4, 1985, Huntingburg Machinery and Equipment Rental, Inc.
("HUMER") filed objections to the Director's initial determination
and requested that the decision be vacated in its entirety and the proceeding
be dismissed with prejudice, or that a hearing be conducted pursuant to IC
4-22-1 and 310 IAC 0.5 prior to the entry of a final order.
4.
On December 10, 1985 leave for the Wabash Valley Archaeological Society, Inc.
("Wabash Valley") and Council for the Conservation of Indiana Archaeology,
Inc. ("CCIA") to intervene in this proceeding was granted.
5.
IC 13-4.1, the Surface Coal Mining and Reclamation Act, applies to this
proceeding.
6.
The Department of Natural Resources is an agency as defined in IC 4-22-1. The
Director of the Department of Natural Resources is the ultimate authority of
the Department with respect to this proceeding.
7. The
Director has jurisdiction over the subject matter and parties to this action.
8.
Pursuant to IC 4-22-1, the Director appointed Sue A. Shadley, administrative
law judge ("ALJ"), for the purposes of conducting the hearing
requested herein, and making a recommendation to him.
9. 310
IAC 12-2-9(c) requires the Director to issue a final written decision on a
lands unsuitable petition within sixty (60) days of completion of the public
hearing.
10.
The public hearing was held and completed on November 4, 1985.
11.
On December 3, 1985, a Notice of Pre-Hearing Conference and Notice of Hearing
was issued by the ALJ concerning the ICC request for hearing. The Pre-Hearing
was scheduled for December 17, 1985, and the Hearing was scheduled for December
19, 1985.
12.
On December 5, 1985 a Notice of Consolidation of the ICC and HUMER hearing
requests was issued by the ALJ, with the pre-hearing conference to be held on December
17, and the hearing to be held on December 9.
13.
The Notice of Pre-Hearing Conference and Notice of Hearing and the Notice of
Consolidation were sent by certified mail to . . . [service list deleted].
14.
The Notice of Pre-Hearing Conference and Notice of Consolidation were also sent
to:. . . .[service list
deleted].
15.
Pre-Hearing Conference was held on December 17, 1985, at which time the parties
were afforded the opportunity for the settlement or adjustment of their claim.
It was determined that settlement was not possible.
16. Hearing
was held on December 19, 1985.
17.
The land at issue in this proceeding is an archaeological site known as the
"Beehunter Site" in Greene County. The Beehunter Site occupies an area of approximately 440 feet
by 650 feet (6.57 acres) atop a broad bluff line spur that overlooks a former
marsh area associated with Beehunter Ditch.
Boundaries of the Beehunter Site have been determined
by the density of archaeological materials observed during three informal
surface surveys, with a scatter of archaeological materials over a
[VOLUME 3, PAGE 82]
larger area. The greatest density of cultural
materials occurs within a more limited area of approximately 195 feet by 163
feet centered on the highest elevation, near the western boundary of the site.
The Beehunter Site is located 1.2 miles southwest of
the town of Lyons and 0.2 miles east of State Highway 67 in Greene County
within the NE 1/4 of the NW 1/4 of the SE 1/4 of the NW 1/4, and the NW 1/4 of
the NE 1/4 of the SE 1/4 of the NW 1/4 of Section 8, T6N, R6W, USGS 7.5 minute
Lyons Quadrangle.
18.
Wabash Valley is an Indiana not-for-profit corporation. It is an avocational organization which promotes archaeological
study of Indiana's prehistory by, among other things, assisting professional
archaeologists and educating the public regarding Indiana's prehistory. Wabash
Valley filed the original petition seeking to have the Beehunter
Site designated unsuitable for surface mining. Wabash Valley has intervened in
this matter in support of the Director's initial determination.
19.
The CCIA is an Indiana not-for-profit corporation which has intervened in support
of Wabash Valley's petition and the Director's initial determination. The CCIA
is an organization of professional Indiana archaeologists which promotes the
preservation, conservation, and wise use of Indiana's archaeological resources.
20.
Claimant, ICC, is a trade association representing the Indiana coal industry.
21.
Claimant, HUMER, is the owner of the Beehunter Site
and adjacent farmland.
22.
Members of Wabash Valley have made use of the archaeological resources of the Beehunter Site by visiting the site, surveying and
collecting artifacts, studying, analyzing, and curating
those artifacts, studying the professional survey records of the site, and
nominating the site for listing on the National Register of Historic Places.
Wabash Valley members are also engaged in fieldwork and research on the several
prehistoric cultures which appear to have occupied the Beehunter
Site. The foregoing activity has been within the scope of Wabash Valley's
purposes.
23.
Members of CCIA have made use of the archaeological resources of the Beehunter Site by visiting the site, surveying artifacts,
studying the professional survey records of the site, and nominating the site
for listing on the National Register of Historic Places. In addition, CCIA
members are engaged in professional research on related archaeological sites
and the several prehistoric cultures which appear to have occupied the Beehunter Site. The foregoing activity has been within the
scope of CCIA's purposes.
24.
Three limited, but professional, archaeological surface surveys of the Beehunter Site have revealed dense distributions of numerous
archaeological artifacts including flint blades, flint chips, chert chips, and numerous pottery fragments.
25.
Among the Beehunter Site artifacts are several
"diagnostic artifacts" which can be traced to specific prehistoric
cultures and time periods. The diagnostic artifacts from the Beehunter Site are evidence of prehistoric occupations of
the site by the following cultures:
(a)The Allison-LaMotte culture which is known to have been present in
southwestern Indiana during the Middle/Late Woodland period (approximately the
beginning of the Christian era to 700A.D.).
(b)
The Albee Complex which is known to have been present in Sullivan County, Indiana,
during the Late Woodland period (approximately 1000 A.D.).
(c)The Riverton Culture, which is known to have been present in
Illinois and Southern Indiana during the Terminal Archaic period (approximately
1500 to 900 B.C.).
(d)
The French Lick Phase, which is known to have been present in Southern Indiana
during the Late Archaic period (approximately 3500 to 1500 B.C.).
26.
Visual observation and earth cores taken from the Beehunter
Site have also shown the presence of a substantial "midden",
or build-up of soil deposited through human occupation of the site. The midden extends below the plowzone
of the site, and the portion below the plowzone
appears to be undisturbed by farming. In addition, the cultural deposits are
known to extend at least two feet below the surface in some location on the site.
27.
Based on the diagnostic and other artifacts on the Beehunter
Site and the substantial midden on the site, it is
highly probable that the Beehunter Site was occupied
at times by at least four distinct prehistoric cultures over a period of
several thousand years.
28.
The depth of the midden on the site is strong
evidence that one or more of these cultural occupations was intense and
long-term. It is also probable that the site contains intact evidence of
dwellings, hearths, and storage, cooking and refuse pits, which are critical to
reconstruction of the features of the people.
29.
Substantial middens are rare in archaeological sites
in Indiana. Substantial
[VOLUME 3, PAGE 83]
middens which have been left intact are even more rare. The midden on the Beehunter Site,
which is both extensive and substantially intact below the plowzone,
makes the Beehunter Site a rare archaeological site
with unusually great potential as a source of knowledge about several
prehistoric cultures in Indiana.
30.
The presence of at least four distinct cultures on the same site, which permits
comparative studies of different cultural adaptations to the same environment,
also contributes to the significance of the Beehunter
Site.
31.
The Beehunter Site is especially significant within
the framework of what is now known and not known about the cultures present at
the Beehunter Site based on sites in other geographic
areas.
32.
The Beehunter Site was nominated for listing on the
National Register of Historic Places as an archaeological site significant in
American history or prehistory.
33.
The Beehunter Site was found eligible for listing on
the National Register of Historic Places.
34.
Surface mining operations on the Beehunter Site would
destroy the archaeological resources present and would therefore cause
significant and irreparable damage to those important resources. The loss of those
archaeological resources would adversely affect members or Wabash Valley and
CCIA by irrevocably destroying highly significant cultural and scientific
resources relevant to professional and avocational
archaeological research on Indiana's prehistory being carried out by those members.
35.
Significant quantities of coal are present under the Beehunter
Site and contiguous acreage. Three distinct coal seams are present. The
uppermost and lowermost seams are each approximately 25 inches thick.
36.
An additional seam approximately five inches thick is present under the Beehunter Site and between the uppermost and lowermost
seams. This intermediate seam is localized, and its relative thinness will
probably preclude mining.
37. Exclusive
of acreage located west of the (former) Pennsylvania Railroad, and exclusive of
the intermediate seam, the HUMER property contains approximately 1.537 million
tons of coal. Located directly under the Beehunter
Site are approximately 55,200 tons of coal, including
5,900 tons attributable to the intermediate seam.
38.
Analysis of the three seams of coal underlying the Beehunter
Site indicates the uppermost seam has a relatively high sulfur content (5.11%),
nearly average ash content (18.40%) and an above average energy content (11,956
BTU/lb.). The intermediate seam has a relatively high
sulfur content (4.77%), a high ash content (35.43%) and a low BTU rating (9,140
BTU/lb.). The lowermost seam is of relatively good quality (2.46% sulfur, 8.03%
ash, and 13,592 BTU/lb.).
39.
The year of 1984 saw record levels of coal production and associated high
marketability in Indiana. Stockpiling during the winter of 1984-85,
a general drop in demand for Indiana coal as a whole, and other economic considerations
have reduced the current demand for Indiana-derived coal.
40.
The coal present under the Beehunter Site is presumed
to be marketable. The quality of coal contained in the uppermost seam, may,
however, require additional processing under existing marketing conditions. The
current economic feasibility of marketing only the lowermost seam is questionable
given its depth and relative thinness.
41.
Designating the Beehunter Site as a land unsuitable
for surface mining under IC 13-4.1-11 would prevent surface coal mining from destroying
archaeological features of a modest geographic area. The environmental consequences
of the designation would be locally positive, with the overall impact upon the natural
environment being negligible.
42.
Designating the Beehunter Site as a land unsuitable for
surface mining would remove approximately 111,000 tons of coal from production
(assuming an additional 100 foot buffer zone around the site) under
conventional surface mining methods. As much as sixty (60) percent of the
impacted coal might be extracted through the use of alternative mining methods,
such as augering, if sufficient safeguards against
future surface impacts were to be demonstrated and implemented. Completion of
the mitigation plan set forth in the Appendix of this order, below, would allow
recover of 100% of the coal located beneath the Beehunter
Site.
43.
The State of Indiana has reported reserves of coal which may be recovered by
surface mining, corrected for loss during the mining process, approximately
1,789 million tons. About 184 million tons are estimated to be recoverable within
Greene Count. The coal under the Beehunter Site
constitutes a negligible portion of the coal which may be recovered by surface
mining in Indiana and in Greene County.
44.
During 1984, approximately 3.28 million tons of coal located
under the Beehunter Site were to be
unavailable for
[VOLUME 3, PAGE 84]
marketing, the impact on the economy
of Greene County would be insignificant.
45. The
mineable coal resources under the Beehunter Site,
with 100 foot buffer amount the site, constitutes approximately 6.5% of the
total coal resources located under the land owned by HUMER. If alternative
mining methods were to be employed, the loss might be reduced to less than 3%
of the total coal resources. Completion of the mitigation plan set forth in the
Appendix of the order, below, would allow recovery of 100% of the coal located
beneath the Beehunter Site.
46.
Because members of Wabash Valley and CCIA have made use of the archaeological resources
of the Beehunter Site and would be adversely affected
by the destruction of those resources, Wabash Valley and CCIA both have
standing on behalf of their members to pursue the original petition to
designate the Beehunter Site unsuitable for surface
mining and to intervene in this proceeding.
47.
The Beehunter has been determined eligible for
listing on the National Register of Historic Places and therefore constitutes
"historic lands" within the meaning of IC 13-4.1-14-4(b)(2) and 310
IAC 12-2-3(b)(2).
48.
The determination by state and federal authorities that the Beehunter
Site is eligible for listing on the National Register of Historic Places
constitutes some evidence, but is not dispositive that the Beehunter
Site's archaeological resources have important historic, cultural scientific or
esthetic (sic) value within the meaning of IC 13-4.1-14-4(b)(2) and 310 IAC
12-2-3(b)(2).
49.
The evidence in the record demonstrates that the archaeological resources of
the Beehunter Site have unusually important historic,
cultural and scientific value.
50.
Surface coal mining of the Beehunter site would cause
significant and irreparable damage to the important archaeological resources of
the Beehunter Site and thus to important historic,
cultural and scientific values.
51.
The supply of coal, the economy, and the environment will not be appreciably
affected by designating the Beehunter Site unsuitable
for surface coal mining.
52.
Based upon the foregoing factors and the unusual importance of the archaeological
resources of the Beehunter Site, the Director
concludes that it is appropriate to exercise his discretion to designate the Beehunter Site unsuitable for surface coal mining.
53. The
Director further finds that the adverse effects of the destruction of the
archaeological resources of the Beehunter Site would
be effectively mitigated by the implementation of a program for recovery of
archaeological data on the site. The Director finds that the conditions for
such a data recovery program set forth in the appendix to this decision meet
minimum professional archaeological standards and are reasonable, necessary and
appropriate for conducting the data recovery program so as to make wise use of
the archaeological resources on the Beehunter Site.
________________________________________________________________________________
[NOTE: CADDNAR citation does not apply to entry below.]
DUBOIS CIRCUIT COURT ORDER
[NOTE: THE DECISION OF THE
DUBOIS CIRCUIT COURT WAS REVERSED (AND THE AGENCY DETERMINATION REINSTATED IN Department of Natural Resources v. Indiana
Coal Council, Inc. (1989 Ind.), 542 N.E. 1000. The Indiana Coal Council, Inc. and HUMER have since sought a writ of
certiorari from the United States Supreme Court in seeking to overturn the Indiana
Supreme Court.]
[The
opinion of the Dubois Circuit Court entered July 28, 1987 [since reversed] was
as follows:]
In
this proceeding, claimants Huntingburg Machinery and Equipment Rental, Inc.
("HUMER") and Indiana Coal Council, Inc. (The "Coal
Council") seek judicial review of a final determination of the Director of
the Indian Department of Natural Resources (the "Director")
designating certain land in Greene County, Indiana, unsuitable for surface coal
mining pursuant to IC 13-4.1-14-1 et seq. Respondent-Intervenors
Wabash Valley Archaeological Society, Inc. ("Wabash Valley") and the
Council for the Conservation of Indiana Archaeology, Inc. ("CCIA") have
appeared in support of the Director's decision. Because this is a proceeding
for judicial review under the Administrative Adjudication Act
("AAA"), IC 4-22-1-1, et. seq., the case
must be decided based on the administrative record before the Director and the
briefs and arguments of the parties. The administrative record has been filed, all parties' briefs have been filed, and under the
Court heard oral argument for all parties on November 14, 1986. This case is
now ready for decision, and the Court now makes the following findings of fact
and conclusions of law pursuant to IC 4-22-1-18(d). To the extent that any
finding of fact is labeled a conclusion of law or vice versa, the substance of
the finding or conclusion shall control:
FINDINGS OF FACT:
A: Procedural Background
1.
The Land at issue in this proceeding is an archaeological site known as the
"Beehunter Site" in Greene County. The Beehunter Site occupies an area of approximately 440 feet
by 650 feet (6.57 acres) atop a broad bluffline spur that
overlooks a former march area associated with Beehunter
Ditch. Boundaries of the Beehunter Site have been
determined by the density of archaeological materials observed during three
informal surface surveys, with a scatter of archaeological materials over a
larger area. The greatest density of cultural materials occurs within a more
limited area of approximately 195 feet by 163 feet centered on the highest
elevation, near the western boundary of the site. Respondents-Intervenors Exhibits 1 and 3 locate the Beehunter
Site more precisely.
2.
On November 19, 1985, pursuant to a petition by Wabash Valley, the Director
issued an initial determination that the Beehunter
Site is a land unsuitable for surface coal mining, as provided in IC 4-22-1-25,
IC 13-4.1-1-14 and 310 IAC 12-2-1 et seq.
3.
The Coal Council and Humer filed timely objections to
the Director's initial determination and requested that a hearing be conducted
pursuant to the AAA and 310 IAC 0.5 prior to entry of a final order thus
initiating the AAA proceeding.
4. On December 10, 1985 leave for Wabash
Valley and CCIA to intervene in the AAA proceeding was granted. 5. The
Department of Natural Resources is an agency as defined in IC 4-22-1-2. The
Director was the ultimate authority of the Department of Natural Resources with
respect to the administrative proceeding.
6.
The Director has jurisdiction over the subject matter and parties to this
action.
7.
310 IAC 12-2-9(c) requires the Director to issue a final written decision on a
lands unsuitable petition within sixty (60) days of completion of the public
hearing, and the public hearing was held and completed on November 4, 1985.
8. A
hearing conducted pursuant to the AAA was held on December 29, 1985 before an
administrative law judge appointed by the Director.
9.
Prior to the AAA hearing, Humer had twice submitted to
the Director proposals for protection of the archaeological resources of the Beehunter Site. At the AAA hearing, however, no evidence
was introduced as to the adequacy or inadequacy of Humer's
proposals.
10.
Prior to the AAA hearing, Humer and the Coal Council
both moved that the hearing be delayed in order to allow more time for
discovery, but the motion was denied in view of the statutory requirement that
the Director issue a final decision within sixty days of the original public
hearing held on November 4, 1985. Humer and the Coal Council
did not file any discovery requests or motions for expedited discovery, or
otherwise identify the additional discovery they sought.
11.
Prior to the November 4, 1985 public hearing, the Coal Council's request for a
subpoena duces tecum to the
Department was denied. The Department did provide the Coal Council with
materials concerning the Beehunter Site. Those
materials contained an extensive bibliography of materials discussing related archaeological
sites, and the Department offered to make available any materials listed in the
bibliography that were not readily available elsewhere. [See entry of October
15, 1985] In a later order, the hearing officer invited the Coal Council to ask
for reconsideration of its motion if the material provided was not adequate.
[Order of November 1, 1985]. No request for reconsideration was made.
12.
At the beginning of the November 4, 1985 public hearing, the hearing officer
denied the Coal Council's request to prohibit Wabash Valley from participating
in the hearing or introducing evidence based on its failure to respond promptly
to interrogatories. 13. On January 3, 1986 the Director took final action and
designated the Beehunter Site unsuitable for surface
coal mining. Humer filed a timely petition for judicial
review in this Court, and the Coal Council intervened in support of Humer.
B: The Parties
14.
Wabash Valley is an Indiana not-for-profit corporation. It is an avocational organization which promotes archaeological
study of Indiana's prehistory by, among other things, assisting professional archaeologists
and educating the public regarding Indiana's prehistory. Wabash Valley filed
the original petition seeking to have the Beehunter
Site designated unsuitable for surface mining. Wabash Valley intervened in the
AAA proceeding in support of the Director's initial determination.
15.
The CCIA is an Indiana not-for profit corporation
which has intervened in support of Wabash Valley's petition and the Director's
initial determination. The CCIA is an organization of professional Indiana
archaeologists which promotes the preservation, conservation and wise use of
Indiana's archaeological resources.
16.
The coal council is a trade association representing the Indiana coal industry.
17. Humer is the owner of the Beehunter
Site and adjacent farmland.
18.
Members of Wabash Valley have made use of the archaeological resources of the Beehunter Site by visiting the site, surveying and
collecting artifacts, studying, analyzing, and curating
those artifacts, studying the professional survey records of the site, and
nominating the site for listing on the National Register of Historic Places. Wabash
Valley members are also engaged in fieldwork and research on the several
prehistoric cultures which appear to have occupied the Beehunter
Site. The foregoing activity has been within the scope of Wabash Valley's
purposes.
19.
Members of CCIA have made use of the archaeological resources of the Beehunter Site by visiting the site, surveying and collecting
artifacts, studying records of the site, and nominating the site for listing on
the National Register of Historic Places. In addition, CCIA members are engaged
in professional research on related archaeological sites and the several prehistoric
cultures which appear to have occupied the Beehunter
Site. The foregoing activity has been within the scope of CCIA's purposes.
C. The Beehunter
Site
20.
Three limited but professional archaeological surface surveys of the Beehunter Site have revealed dense distributions of
numerous archaeological artifacts including flint blades, flint chips, chert chips, and numerous pottery fragments.
21. Among
the Beehunter Site artifacts are several
"diagnostic artifacts" which can be traced to specific prehistoric
cultures and time periods. The diagnostic artifacts from the Beehunter Site are evidence of prehistoric occupations of
the site by the following cultures:
(a)The
Allision-LaMotte Culture which is known to have been
present in southwestern Indiana during the Middle/Late Woodland period
(approximately the beginning of the Christian era to 700 A.D.).
(b)
The Albee Complex which is known to have been present in Sullivan County, Indiana,
during the Late Woodland period (approximately 1500 to 900 B.C.)
(c)The Riverton Culture, which is known to have been present in
Illinois and southern Indiana during the Terminal Archaic period (approximately
1500 to 900 B.C.)
(d)
The French Lick Phase, which is known to have been present in southern Indiana
during the Late Archaic period (approximate 3500 to 1500 B.C.)
22.
Visual observation and earth cores taken from the Beehunter
Site have also shown the presence of substantial "midden",
or build-up of soil deposited through human occupation of the site. The midden extends below the plowzone
of the site, and the portion below the plowzone
appears to be undisturbed by farming. In addition, the cultural deposits are known
to extend at least two feet below the surface in some locations on the site.
23.
Based on the diagnostic and other artifacts on the Beehunter
Site and the substantial midden on the site, it is
highly probable that the Beehunter Site was occupied
at times by at least four distinct prehistoric cultures over a period of
several thousand years.
24.
The depth of the midden on the site is strong
evidence that one or more of those cultural occupations was intense and long-term.
It is also probable that the site contains intact evidence of dwellings,
hearths, and storage, cooking and refuse pits, which are critical to
reconstruction of the features of the people.
25.
Substantial middens are rare in archaeological sites
in Indiana. Substantial middens, which have been left
intact, are even more rare. The midden
on the Beehunter Site, which is both extensive and
substantially intact below the plowzone, makes the Beehunter Site a rare archaeological site with unusually
great potential as a source of knowledge about several prehistoric cultures in
Indiana.
26.
The presence of at least four distinct cultures on the same site, which permits
comparative studies of different cultural adaptations to the same environment, also
contributes to the significance of the Beehunter
Site.
27.
The Beehunter Site is especially significant within
the framework of what is known and not known about the cultures present at the Beehunter Site based on sites in other geographic areas.
28.
The Beehunter Site was nominated for listing on the
National Register of Historic Places as an archaeological site significant in
American history or prehistory.
29.
The Beehunter Site was found eligible for listing on
the National Register of Historic Places. [51 Fed.
Reg. 6677 (1986)]
30.
Surface mining operations on the Beehunter Site would
destroy the archaeological resources present and would therefore cause
significant and irreparable damage to those important resources. The loss of
those archaeological resources would adversely affect members of Wabash valley
and CCIA by irrevocably destroying highly significant cultural and scientific resources
relevant to professional and avocational research on
Indiana's prehistory being carried out by those members.
31.
Significant quantities of coal are present under the Beehunter
Site and contiguous acreage. Three distinct coal seams are present. The
uppermost and lowermost seams are each approximately 25 inches thick.
32.
An additional seam approximately five inches thick is present under the Beehunter Site and between the uppermost and lowermost seams.
This intermediate seam is localized, and its relative thinness will probably
preclude mining.
33.
Exclusive of acreage located west of the (former) Pennsylvania Railroad, and exclusive
of the intermediate seam, the Humer property contains
approximately 1.537 million tons of coal. Located directly under the Beehunter Site are approximately
55,200 tons of coal, including 5,900 tons attributable to the intermediate
seam.
34.
Analysis of the three seams of coal underlying the Beehunter
Site indicates the uppermost seam has a relatively high sulfur content (5.11%),
nearly average ash content (18.40%) and an above average energy content (11,956
BTU/1b.). The intermediate seam has a relatively high sulfer content (4.77%), a high ash content (35.43%) and a
low BTU rating (9,140 BTU/1b.). The lowermost seam is of relatively good
quality (2.46% sulfur, 8.03% ash, and 13,592 BTU/1b.).
35.
The year of 1984 saw record levels of coal production and associated high
marketability in Indiana. Stockpiling during the winter of
1984-85, a general drop in demand for Indiana coal as a whole, and other economic
considerations have reduced the current demand for Indiana-derived coal.
36.
The coal present under the Beehunter Site is presumed
to be marketable. The quality of coal contained in the uppermost seam may,
however, require additional processing under existing marketing conditions. The
current economic feasibility of marketing only the lowermost seam is questionable
given its depth and relative thinness.
37.
Designating the Beehunter Site as a land unsuitable
for surface mining under IC 13-4.1-14-1, et seq., prevents surface coal mining
from destroying archaeological features of a modest geographic area. The
environmental consequences of the designation are locally positive, with the
overall impact upon the natural environment being negligible.
38.
Designating the Beehunter Site as land unsuitable for
surface mining would remove approximately 100,000 tons of coal from production
(assuming an additional 100 foot buffer zone around the site) under
conventional surface mining methods. As much as sixty (60) percent of the
impacted coal might be extracted through the use of alternative mining methods,
such as auguring, if sufficient safeguards against future surface impacts were
to be demonstrated and implemented. Completion of the mitigation plan set forth
in the Appendix to the Director's order would allow recovery of 100% of the
coal located beneath the Beehunter Site.
39.
The State of Indiana has reported reserves of coal which may be recovered by
surface mining, corrected for loss during the mining process, approximately
1,789 million tons. About 184 million tons are estimated to be recoverable
within Greene County. The coal under the Beehunter Site
constitutes a negligible portion of the coal which may be recovered by surface mining
in Indiana and in Greene County.
40.
During 1984, approximately 3.28 million tons of coal were
produced from surface mining in Greene County. If the coal located under the Beehunter Site were to be unavailable for marketing, the
impact on the economy of Greene County would be insignificant.
41.
The mineable coal resources under the Beehunter Site,
with a 100 foot buffer around the site, constitutes
approximately 6.5% of the total coal resources located under the land owned by Humer. If alternative mining methods were to be employed,
the loss might be reduced to less than 3% of the total coal resources.
Completion of the mitigation plan would allow recovery of 100% of the coal
located beneath the Beehunter Site.
42.
The evidence in the record demonstrates that the archaeological resources of
the Beehunter Site have unusually important historic,
cultural and scientific value.
43. Surface
coal mining of the Beehunter Site would cause
significant and irreparable damage to the important archaeological resources
for the Beehunter Site and thus to important
historic, cultural and scientific values.
44.
The supply of coal, the economy, and the environment will not be appreciably
affected by designating the Beehunter Site unsuitable
for surface coal mining.
45.
Based upon the foregoing factors and the unusual importance of the
archaeological resources of the Beehunter Site, the
Director concluded that it was appropriate to exercise his discretion to
designate the Beehunter Site unsuitable for surface
coal mining.
46.
The Director further found that the adverse effects of the destruction of the
archaeological resources of the Beehunter Site would
be effectively mitigated by the implantation of a program for recovery of archaeological
data on the site The Director found that the conditions for such a data
recovery program set forth in the Appendix to his decision meet minimum
professional archaeological standards and are reasonable, necessary and
appropriate for conducting the data recovery program so as to make wise use of
the archaeological resources on the Beehunter Site.
CONCLUSIONS OF LAW:
1. This
Court has jurisdiction over the parties and the subject matter of this case.
2.
The standard of review applicable here is set forth by the Administrative Adjudication
Act ("AAA"). The Director's decision shall be upheld if the Director
complied with the procedural requirements of the AAA and if his decision is
supported by substantial, reliable, and probative evidence [IC 4-22-1-18(b)].
However, if the Court finds that the Director's decision is:
(1)
Arbitrary, capricious, an abuse of discretion or otherwise not in accordance
with law; or
(2)
Contrary to constitutional right, power, privilege or immunity; or
(3)
In excess of statutory jurisdiction, authority or limitations, or short [of]
statutory right; or
(4) Without
observance of procedure required by law; or
(5)
Unsupported by substantial evidence, the court may order the decision of
determination of the agency set aside. The Court may remand the case to the
agency for further proceedings and may compel agency action unlawfully withheld
or unreasonably delayed. [IC 4-22-1-18(c)]
3.
The Court in Penn Central Transportation
Company v. City of New York, (1978) 438 U.S. 104, 57 L.Ed.2d 631, 98 s, Ct,
2646, said at p. 648: "While this court has recognized that the Fifth
Amendment's guarantee - - (is) designed to bar Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should
be borne by the public as a whole, (Citation), this Court, quite simply, has
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."
4.
After reading a half dozen "talking" cases under the Fifth Amendment,
the above is the only consistent rule that I could discern, which rule,
unfortunately, begs the question posed in each case.
5.
The recent case of First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, California
(1987) 55 LW 4781, held that temporary taking is no
different in kind from permanent takings. Again the Court said: "it is
axiomatic that the Fifth Amendment's just compensation provisions is designed
to bar Government from forcing some people alone to bear public burdens, which,
in all fairness and justice, should be borne by the public as a whole."
6.
The restriction on Humer's property is not a proper
exercise of police power nor can it be justified by the State's interest in
promoting the health, safety and general welfare of the public, as in Keystone Coal Association v. DeBenedicitis (1987), 480 U.S. 94 L.Ed.
2d 472, 108 S Ct.
7. As
applied to the claimant's property, the provisions of IC 13-4.1-14, constitutes
an illegal taking under the Fifth Amendment, because the interests sought to be
protected thereunder, i.e., the preservation of
historic, cultural, scientific and aesthetic values, important though they are,
should be preserved at the expense of the public as whole, and not solely by Humer, as owners of the property in question. This is
particularly true under the facts of this case because the public does not need
to purchase the owner's interest in the archaeological site sought to be
protected, but need merely underwrite the cost of archaeological excavation,
which preserves the knowledge the site can provide and at the same time
destroys it for such purposes. In other words, the public is not required to
purchase the owner's coal rights- - it need merely underwrite the cost of excavation,
and pay a reasonable rental in accordance with First English Church.
8.
The Director's decision constitutes a taking of private property without the
payment of compensation as contemplated by the Fifth Amendment to the United
States Constitution and Article I. sec. 21 of the Indiana Constitution, and is
thus contrary to constitutional right, power, privilege, and immunity. For the
Foregoing reasons, the Court concludes that the Director's designation of the Beehunter Site as unsuitable for surface coal mining should
be set aside, and remanded for further consideration
of Humer's mitigation plan. Hugo C. Songer, Judge Dubois
Circuit Court, July 28, 1987.