[CITE: Krantz Bros. Const. v. DNR, 5 CADDNAR 106 (1990)]
[VOLUME 5, PAGE 106
Cause #:89-077R
Caption: Krantz Bros. Const. v. DNR
Administrative Law Judge: Rider [Page (V 106)]
Attorneys: Wissner; Law
Date: June 18, 1990
ORDER
[NOTE: KRANTZ TOOK JUDICIAL REVIEW TO THE WARRICK CIRCUIT
COURT, 87C0l-9008-CP -317. ON DECEMBER 27, 1990, THE WARRICK CIRCUIT COURT
REVERSED THE DECISION BY THE ALJ. HOWEVER, ON APPEAL THE DECISION WAS
REINSTATED BY THE COURT OF APPEALS IN INDIANA DEPARTMENT OF NATURAL RESOURCES
V. KRANTZ BROTHERS CONSTRUCTION CORP., (1991 IND. APP.), 581 N.E.2D 935.]
Cessation Order C90406-KRANTZ is vacated.
FINDINGS OF FACT
1. On May 9, 1989, Krantz Brothers Construction Corporation, Inc. (the "Claimant") filed a request for review of Cessation Order C90406-KRANTZ (the "CO'').
2. The Claimant holds no permit to mine coal at the site in question.
3. Claimant was enrolled in the small operator's assistance program (SOAP) but dropped out due to the alleged failure of the Division of Reclamation to conduct the program in a time efficient manner. 4. Another reason for the Claimant's dropping out of SOAP was the fact that a market developed for what the Claimant calls "other minerals" which lead him to believe he could qualify for what is termed 16 2/3% exception to the permitting process.
5. IC 4-21.5, IC 13-4.1, and 310 IAC 0.6 apply to this proceeding.
6. The department of natural resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The natural resources commission (the "Commission") is the ultimate authority with respect to this proceeding.
7. The Claimant disputes the CO by maintaining that he is in the business of selling soil and not mining coal; and therefore, the inspector (Mike Anderson) had no authority to order the Claimant to cease operations.
8. The Claimant further argues that even if he took the coal he would still not be a surface coal mining operation (SCMO) because under IC 134.1-3(12) a SCMO does not include the extraction of coal incidental to the extraction of other minerals where coal does not exceed 16 2/3% of the tonnage of minerals removed for the purposes of commercial use or sale.
9. This second issue can easily be disposed of. The burden of proof as to the entitlement to the 16 2/3% exemption (the "exemption") is on the requester, here the Claimant.
10. The Claimant did not present enough evidence to the Department or at the hearing to indicate that entitlement to the exemption exists.
11. It is proper for the Department to use Office of Surface Mining (OSM) guidelines to determine criteria to be met in regard to entitlement to the exemption, absent an Indiana statute or rule on point.
12. Any Indiana statute or rule in this regard would be at least as restrictive as OSM guidelines.
13. The 1984 OSM guidelines would be determinative here (49 Fed. Reg. 19338 (1984)).
14. The case of S & G Excavating, Inc. v. US, 15 Cl. Ct. 157 (1988) cited by the Claimant as a repudiation of the 1984 OSM guidelines in regard to what is included in the term "other minerals" does not help here. In S & G, the Court failed to apply the guidelines only because the case arose in 1982, which is prior to the guidelines being published and does not stand for a repudiation of said guidelines.
15. However, the entitlement to the exemption does not matter in regard to the CO in question here. 16. The evidence shows that the Claimant was engaged in the business of mining and selling dirt.
17. The Department has no jurisdiction over this type of operation.
18. The Claimant has never attempted to mine coal on this property. 19. The Claimant wishes to mine the coal if he can receive proper permission to do so. 20. This is evidences by his participation in the SOAP program and his request for the exemption.
21. However, if the Claimant never receives permission to take the coal, he still wishes to continue as a miner and seller of dirt.
22. The Claimant has continually mined and sold dirt from this property since November 1986 which was long before coal leases were
[VOLUME 5, PAGE 107]
obtained and the SOAP program entered (July-August 1987).
23. The Claimant has presented a long list of customers to which dirt was sold. This list included OSM and the Department.
24. The Department is correct in stating that if an inspector sees what he believes to be an unpermitted SCMO he must write a CO.
25. However, in this case the inspector saw a dirt mining operation over which he has no jurisdiction and mistook for a SCMO.
26. Based on the above, the CO
must be vacated but may be reissued if the Claimant mines coal in the future
without proper legal authority.