To the extent that the June 25, 1993 decision of the Department of Natural Resources prohibits mining within 300 feet of the school building and the adjoining areas habitually used for school related purposes, the decision is affirmed. To the extent that the June 25, 1993 decision of the Department of Natural Resources prohibits mining within 300 feet within school property not being actively and habitually used for school purposes, the decision is reversed
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency charged with the responsibility of regulating surface coal mining operations.
4. At all times relevant to these proceedings, Shand Mining Company ("Shand") held permit S-203 issued by the DNR which allows the surface mining of coal at the Rio Grande Mine in Clay County, Indiana.
5. On June 9, 1993, Shand attempted to bond under the S-203 permit an already permitted but unbonded area near the Van Buren school property.
6. The parties agree that a portion of the area to be bonded lies within 300 feet of the Van Buren school property line but not within 300 feet of the Van Buren school building.
7. On June 25, 1993, the DNR refused to accept bond (thus effectively prohibiting any mining operation) on the permit property located within 300 feet of the school property.
8. On July 6, 1993, Shand filed a request for administrative review contending that the applicable rules prohibiting mining near a school apply only to distances measured from school buildings rather than the school property line and therefore bond should have been accepted and mining allowed to commence.
9. Since no part of the request for administrative review deals with the grant, denial, renewal, suspension, or revocation of a permit, the administrative law judge is the ultimate authority over this matter.
10. The motions, briefs, and memoranda filed by counsel clearly show there is no factual dispute in this matter and thus a resolution by way of summary judgment pursuant to IC 4-21.5-3-23 is appropriate.
11. IC 13-4.1-14-1(a)(5) provides that "no surface coal mining operation may exist: . . . (5) within three hundred (300) feet from any occupied dwelling, unless waived by its owner, any public building, school, church, community, or institutional building . . . ."
12. 310 IAC 12-2-1(f) prohibits surface coal mining operations from being conducted "within 300 feet measured horizontally of any public building, school, church, community or institutional building or public park. "
13. The word "school" is not defined anywhere in IC 13-4.1 or 310 IAC 12 (I-SMCRA).
14. Essentially the same provisions are found in the federal counterpart. See 30 CFR 761.12(f). Likewise the word "school" is undefined.
15. Shand argues that the legislature has enacted anti-drug laws that enhance penalties for certain activities within 1,000 feet of "school property", (See IC 35-49-3-3) and thus the use of the word "school" instead of the use of the words "school property" means I-SMCRA refers to 300 feet from the school building rather than the school property line.
16. Shand's argument would be considerably stronger if the Indiana Legislature (or the NRC) had worded IC 13-4.1-14-1(a)(5) or 310 IAC 12-2-1(f) somewhat differently.
17. Both the above sections of I-SMCRA use the words "public building" and "community or institutional building" but only refer to "school" and "church".
18. It would have been relatively easy to have written these sections so as to restrict all of limitations to "buildings".
19. By not writing I-SMCRA (or its federal counterpart) in this way, the legislative bodies appear to have considered a broader concept of "school" (and "church") than just the
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operational buildings.
20. The issue for the administrative law judge becomes one of how to properly balance the interests of the mining company and the community.
21. There is no reason to think that the legislative bodies intended these I-SMCRA sections to apply to property owned by school corporations but not being used for school purposes. To prohibit mining within 300 feet of school property held for expansion purposes and not being used for any day to day school activities would exceed any reasonable purpose of I-SMCRA and most likely create a serious "takings" problem.
22. The term "curtilage applies only to residences and includes "lands and grounds surrounding a dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment." See Black's Law Dictionary, 5th Edition.
23. The concept of "curtilage", however, can apply to this case.
24. With all school buildings there are lands and grounds surrounding the buildings which are necessary and convenient and habitually used for school purposes. These would include parking lots, driveways, playgrounds, and perhaps out buildings for storage.
25. These areas were intended by the legislative authorities to be included in the concept of "school".
26. in its reply/response brief, Shand points out that the permit approval given to this permit (Exhibit A) does not find there are lands unsuitable for mining except as listed in condition 2 (a listing of 27 occupied dwellings) and condition 3 (near County Road 3N).
27. While this is true, such conditions merely restate applicable law, namely 310 IAC 12-2-1 and IC 13-4.1-14-1. These sections of ISMCRA must be followed whether or not included as conditions to the permit. It is not necessary for the DNR to include as a condition to the permit that no surface mining operations can take place within 300 feet of a school to retain the right to enforce these provisions of I-SMCRA.