Mining Law

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Mining Law
2012-11-17 12:53:07
Mining Law

Mining Law
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  1. Types of mining
    • 1. Coal
    • 2. Hard rock (iron ore, stone, etc.)
    • 3. Uranium
  2. Types of coal

    • Lignite;
    • Anthracite;
    • Lignite
  3. Ownership of minerals in U.S.
    Private ownership; ad coelum
  4. Theories of owenership of minerals
    • Ownership in place: owner of mineral rights owner right to serach, develope, and produce––in addition, has a possessory right to the min in place beneath the owner's tract (Tex., Colo. NM, Mich., ND)
    • Nonownership: Profit a prendre: No ownership (possessory right) in substances themselves, only a right to develop them
    • NB: The effect of both theories is that the rights are proeprty, no contract (that is: conveyances, not Ks)
  5. Ownership in place, define
    Owner of mineral rights owns right to search, develop, and produce––in addition, has a possessory right to the min in place beneath tract (Tex., Colo., NM, Mich., ND)
  6. Profit a prendre, defined
    No ownership in substances themselves, only a right to develop them
  7. Mineral owning and leasing basics
    Assumer minerals are severed (original --> current owner --> lessee)
  8. Conveyance or assignment
    Mineras are conveyed, leases are signed
  9. Surface destruction test
    • In conflicts between surface owners and mineral owners, use test to determine who owns the minerals
    • NB: Some jx. say that surface mining must be the only reasonable method of obtaining them inerals (rather than any reasonable method that destroys the land)
    • NB: Often, in a conveyance of "all the ogm in and under that may be produced" the surface owner is said to own the minerals that must be acquired through strip mining
  10. "Surface minerals" v. "Deep minerals"
    Surface owners owns the surface minerals (in many cases), ogm owner owns the deep minerals
  11. Importance of time of conveyance
    Matters in determining contract intent (e.g., strip mining wasn't around for a long time, so it could affect Ks regarding near-surface minerals
  12. Inequality resultant from surface destruction test
    Farmer A and B. A has no near surface lignite. B does. A's grantee gets all lignite, B's grantee does not.
  13. Surface Destruction Rule
    "Minerals" does not include substances that are remoed by methods that will consumer or destroy the surface estate
  14. Common Meaning Rule
    "Minerals" includes all substance w/in the ordinary and natural meaning of the word at the time of the severance, whether or not their presence or value are known
  15. Manner of Enjoyment rule
    "Minerals" includes all substances valuable in themselves apart from the soil (Seen in somes states other than Texas)
  16. Ejusdem Generis rule
    "Minerals," when use w/ spcifically-IDd substance, means other substances of like kind
  17. Texas Surface Destruction TEst
    A substance is not a "mineral" if: Substantial quantities lie at or near the surface (200ft?) so that one of the reasonabe methods of its removal as of the date the insrument is decided by the court would be by strip or open pit mining.

    If a substance is not a mineral, surface owner owns it at whatever depth it's found
  18. Reformation (of deed)
    Seeking the court to change a deed to remedy a mutual mistake
  19. Reed II––Minerals near surface holding
    If deposit lies near surface, the substance won't be granted or retained as a mineral if it is shown that any reasonable method of production would destroy/deplete the surface
  20. Reed II––Date of determining "reasonable method" of removing minerals
    Date of the opinion
  21. Reed II––Effect of portion of minerals at "the surface"
    If a portion of the mineral is at the surface, it belongs to surface owners (up to 200 ft)
  22. Coal extraction methods––Surface
    • Surface:
    • Mountaintop (take off mountain top, fill in lower area next to it w/ "valley fill")
    • Contour ("contour bench" made at one level (like a topo map) al the way around the mountain)
    • Auger (cut into the side fo the mountain)
    • Area (dragline across prospective horizon)
    • Open pit (seam too thick to replace, leaves pit)
  23. Coal extraction methods––Deep or underground
    • Deep/underground (70%):
    • Drift: horizontal shaft
    • Slope: sub-horizontal shaft
    • Shaft: vertical shaft
  24. Ordinary and natural meaning test

    **Good exam quesiton**
    • Substance will be a mineral if it was generally regarded as a mineral:
    • 1. By the community;
    • 2. At the time of severance

    • - If mineral is expressly stated: No recovery for reasonable, non-negligent use of the surface
    • - If mienral is not expressly stated: Recovery of damages by surface owner, whether negligent or not
  25. Texas Three-Step "Minerals" analyssi
    • 1. Is intent clear from the 4 corners? Yes, instrument controls. No...
    • 2. Any substance previously held as a matter of law to be "surface" belongs to the surface owner (nine matter of law surface minerals)
    • 3. If not in the nine:
    • - Pre June 8, 1983 severance: Surface destruction test
    • - Post June 8, 1983 severance: ordinary and natural meaning rule
  26. Uranium––surface or mineral estate
    Mineral estate
  27. Nine matter of law minerals in Texas
    • 1. Building stone
    • 2. Limestone
    • 3. Caliche
    • 4. Surface shale
    • 5. Sand
    • 6. Gravel
    • 7. Water
    • 8. Near surface lignite
    • 9. Irone

  28. Multiple owners and co-development rights
    • 1. Estate can be separated
    • 2. Reasonable surface access as needed for development (correlative rights)
    • 3. Does not need to be expresed in deed or lease
  29. Pour space reversion
    Pour space reverts back to surface owner after mineral owner is finished
  30. Pour space reversion: Texas Exception
    If pour space is w/in salt dome, pour space is mineral owner's
  31. Trespass
    Trespass quare clausum frigit v. trespss on the case: Strict liability if proven

    pg. 42
  32. Bad v. Good Faith Trespass
    • Bad faith: market val of min. w/o deduction for production costs
    • Good faith: market val of min. w/ production costs deducted
    • Intent is key: Difference is usually a question of law
  33. Skillful scrivener canon of construction
    If author is astute in one portion and changes wording in a second portion, the second portion means something different
  34. Reservations canon of construction
    Reservations are strictly construed against grantor
  35. Two antecedents before "said land' canon of construction
    When there are two or more antecedents before a "said land" clause, "that" speaks to the closes
  36. High water mark viz "top of bank"
    The "top of bank" is the lower level mark, not the high water mark
  37. Deff. between:
    "1/2 of my interest" and
    "A one half interset"
    • "1/2 of what I own" vs.
    • "1/2 of the whole"
  38. Fiduciary duty of executive (Later modified in Tex.)
    Grantee who gave the lease is the "executive right holder; he makes the lease for both parties and splits money down the middle
  39. Difference between:
    "I reserve 1/2 of the ogm in and under the land described"
    "I reserve 1/2 of the ogm in and under the land conveyed"
    • "I have 50% undivided mineral interst in 100% of the land described."
    • v.
    • If whole land being conveyed, no prob., you have 50%, but if less, your interest is lessened, e.g., 1/2 of land conveyed = 1/4 interest in entire land
  40. Prospecting and trespassing
    No physical entrance to one's land by using thumpers, etc., but shooting acress unpermitted land is interference w/ a prospective advantage and is possibly unlawful apprpriation of a trade secret (seismic; setting off a charge off premises and seeing what is on premises)
  41. Remedy for loss of prospective value (w/ regard to seismic trespass)
    Assumpsit. Sue for what you could have gotten had trespass not placed them in a better position.
  42. Implied surface easement test
    • Reservatoin of minerals may get implied surface easment, if at time of conveyance:
    • 1. Such a necessity exists in the particular case to develop the minerals; and
    • 2. Such an easement would not conflict w/ the intended future uses of the whole property bein conveyed
    • NB: Tex. doesn't care about element 2, Tex. has accommodation doctrine
  43. Rule of Support
    Old law: Canonly take those min's which will not require injury to the surface to get, unless K or law says so
  44. Flying Diamond Oil Co rule
    • A mineral owner has an implied easement of ingres/egress over the surface owner of the land if "reasonable necessary" in a case where the mineral rights owner contracted for broad surface rights in order to facilitate exploration and production of the minerals
    • Texas: Only from permitted tract
    • WV: Mineral owner has right to "Reasonable enter"
    • Williams and Meyers: If ingress/egress rights are not stipulated, they will be implied
  45. Reason for leasing minerals
    Mineral owners are usu. private and can't mine minerals themselves; thus, they K out in return for royalty, bonus, or other benefits
  46. Types of lease-interpretations
    • 1. Reformation v. finding a meaning for every word
    • 2. Parol ev. /intent v. 4 corners
    • 3. SoF: use to avoid K application; must be plead
    • Texas: Every word has a meaning/four corners state
  47. Type of property of lease
    Tex: RP interest
  48. Memo of Lease
    Filed on public record to give notice of encumbrance, but not to give specifics of lease
  49. Who drafts leases? Why does it matter?
    Lesses; cts interpret ambiguities against the lessee's interest; source of implied Ks
  50. Nature of Lease
    • 1. Conveyance and K
    • 2. Option, not obligation to develop
    • 3. Right to maintain development in all coal, etc.
    • 4. BUT, more like a deed than a lease
    • 5. States classify differently
  51. Different classifications of leases across states
    • Tex: Fee simple determinable in the minerals
    • OK: Prefit a prendre subject ot equitable determination
    • KS: License that may become irrevocable
    • Many others: Uncertain or inconsistent
  52. Lease: K and Conveyance, more like a deed than a lease. Why?
    • 1. Right to take substances as well as use the land
    • 2. Lessee's rights could be perpetual
    • 3. Lessor and lessee share the land
  53. Mining questions analysis method
    • 1. Is the estate bifurcated?
    • 2. Does the mineral developer need permission from the surface owner to develope? (e.g. strip miing)
    • 3. What permissions/permits are needed from gov't authorities?
    • NB: Generaly, mineral estate is said to be dominant
  54. Letters patent
    Original land conveyance from the gov't. Sometimes must go to look at these to see if someone granted a right they didn't have (e.g., right to strip mine)
  55. Haulage
    Moving coal thru someone's land, breaking the plane, and up thru your land
  56. Waste
    A destruction or material alteration or deterioration of the freehold, or of the improvements forming a meterial part thereof by any person rightfully in possession, but who has not the fee fee title or the full estate (e.g., covenant)
  57. Are covenants liable for waste?
    Not at old common law, but has been changed by statute
  58. Injunction elements
    Material injury, continuing, no other adequate remedy at law
  59. Co-tenant rules
    • 1. Majority: One co-tenant can develop, but must acct to the nonconsenting co-tenant(s) for gross profits
    • - Cost of  production may be deducted (unlike royalty)
    • 2. If development is not possible, seek partition (by law or ct.; sell all interests and split cash OR you get portion of real property)
  60. Gross profits owner vs. royalty owner
    • - 15% owners get 15% of gross profits (production deducted); first mine car grants no money
    • - 1% royalty owner does not have production costs deducted; first mine car = 1% profits made on coal
  61. Life tenant/remainderman issues
    • 1. Leasing & development (both must approve development unless creating instrument says otherwise)
    • 2. Division of income (as creating instrument dictates)
  62. Open-mine doctrine
    • Where property is bein developed for minerals or isunder lease for mineral development when LE is created, then all benefits go to LT
    • NB: Based on intention of creator; can be changed by conveyance; doesn't generally allow LR to lease unilaterally if prior lease htat's covered by open mine doctrine expires due to non-development
  63. Division of income between LT and remainderman
    • 1. As creating instrument specifies; otherwise
    • 2. Delay rentals and stoppage royalties go to LT; bonus goes to Remainderman in an account as corpus; LT gets income from bonus during LT's life
    • NB: Special rules for trust:
    • As trust specifies;
    • As trust law specifies
  64. "Demise" meaning
    Grant or conveyance
  65. Habendum clause
    "So long as minerals are being mined"
  66. Implied covenant to develop
    • Present in every lease––mining leases are made for long terms, but cannot be thought that lessor intended that there could be no development w/in a reasonable time and no recompense
    • NB: Lease becomes an option
  67. Property status of a bare license?
    Not real propety; not assignable and are revocable
  68. Evidences of Leases
    • 1. Terms
    • 2. Exclusivity
    • 3. Time
    • 4. Irrevocability
    • 5. Appearance of abandonment
  69. Ways to avoid abandonment claims
    Drill test cores, have an office on site, minimum royalties, rental payments, show market wasn't good for coal, paying property taxes on minerals
  70. Effect of no express duty to mine upon abandonment claims
    When there's no express duty to mine, it's hard to say that co. abandoned
  71. Implied duty to act in re abandonment
    Only applies if there is no minimum royalty. If min. is paid, lease isn't abandoned.
  72. Requiremens of abandonment of RP
    Physical departure and intent
  73. Methods for terminating lease
    • 1. Abandonment
    • 2. Forfeiture
    • 3. Expiration
    • 4. Cancellation
    • 5. Surrender
  74. Types of rights given by leases
    • 1. RP interest; or
    • 2. Exclusive right of access to explore for and develop minerals
  75. Title passing––Usufruct analysis
    If there was intent to pass the entire usufruct of disposal of the coal, title passes
  76. Title Passing––PA test
    • 1. Exclusive right;
    • 2. To mine all coal;
    • 3. For either:
    • - consideration up front OR
    • - be compelled to mine OR
    • - pay delay rentals
    • NB: This makes a lease a severance
  77. "Corporeal hereditament"
    RP; can't be abandoned––Adv. Poss. might work, though
  78. Scope of the Access Easement
    • Mineral owner given "reasonable" access to the surface
    • NB: Rights exist, even if not in severance
    • NB: Mineral estate is dominant––right to make reasonable use w/o having to pay surface dmgs
  79. "Reasonable use" of surface
    • 1. Alternatives available: mineral owner could have done it another, less destructive way and not destroyed surface
    • 2. Industry std: If mineral owner is "doing something weird" it mightn't be reasonable
    • 3. Extent of Interference: How much is min. owner using?
  80. Accommodation Doctrine
    • Surface owners are granted protection (as opposed to, "Sorry, sucker" days)
    • Must prove:
    • 1. Distrupted surface use must have existed before the mineral development;
    • 2. Surface use must have been actually disrupted by the mineral development; and
    • 3. Another reasonable alternative existed
  81. "Your tract or any other tract" meaning
    Min. owner can use your tract to service any tract (e.g., you could be the middle tract and they could have a processing station on your land)
  82. Limitations on surface use rights
    • 1. Reasonable, non-neg., non-excessive
    • 2. For benefit of mineral interst on that leasehold
    • 3. In accord w/ terms of the lease
    • 4. In compliance w/ accommodation doctrine
    • 5. In compliance w/ stat. and reg. law
  83. Canon of Construction: Express rights negating implied rights––Does it mean an unincluded one is out?
    • Some say yes; general conveyances allow more "reading into things"
    • From Case: “It would appear from the foregoing cases that where the severance deed contains broad rights for utilization of the surface in connection w/ underground mining, and these broad rights are coupled w/ a number of specific surface uses, courts will be inclined to imply compatible surface uses that are needed to the underground mining activity.”
  84. Grant of right to surface mine: express or implied?
    • Both:
    • If expressed, no problem;
    • If implied, only allowed if, at the time of the grant, surface mining was a common practice in the area
  85. Nuisance
    Axn beyond the scope of easement could = nuisance; e.g., not moving pipeline
  86. Basic rule about other tracts and use of surface when deed is silent
    • No use allowed on such leased tracts
    • NB: Be careful; "other tracts" language may be sufficient
  87. Right of reasonable use to develop
    • Even thought something isn't mentioned in lease, necessary and reasonable uses will be allowed
    • NB: Reasonablenes expands w/ technology
  88. Canon of Interpretation: Express rights rnning afoul of unexpressed rights
    Express rights discount unexpressed rights
  89. Subjacent support, liability
    Not strict liability––must show actual damage
  90. Absolute right to subjacent support?
    Yes. But "mere surface subsidence" allowed (if no buildings, hard to get damages)
  91. Who does water go to, surface or min. owner?
    Surface, so long as water stays on/in tract
  92. Who does coalbed methane go to, surface or mineral owner?
    • Surface, unless severed, BUT vengint of CBM is always allowed!
    • NB: In old leases, using the "when written" canon of construction, CBM was waste an no one reserves waste; CBM goes to mineral owner
  93. Owner of space left by mining
    • Surface owner
    • BUT, Tex. has  salt dome pour space exception
  94. Texas––Owner of space left by mining
    Surface owner, but if pour space is in a mineral, mineral owner
  95. CBM split
    • Some say surface owner gets it (because it's a separate mineral)
    • Others give to mineral owner
    • Others give to surface owner, w/ mineral owner right to vent
  96. Explosive––Type of liability
    Strict––no neg. required; injury = damages
  97. Liability split of blasts
    • Strict: Actual direct result of blast (e.g., thrown rock)
    • Neg. for indirect results: concussion, smells, vibrations, loss of springs, etc.
  98. Res ipsa and blasting
    • Used to prove vibrations from blast cause damage
    • Generally: Prove neg occurred, then prove all other causes; Facts must be weighed and can be rebutted
  99. Implied duty to begin mineral development
    There is an implied duty to develop minerals w/in a reasonable time period (unless parties have contracted otherwise––usually a covenant, not a condition!)
  100. Covenant v. condition
    Covenant: A promie that, when broken = suing for damages (but not necessarily lease forfeiture)
  101. Roadmap of lease issues:
    • 1. Has the duty been K'd around?
    • 2. Has the duty been breached?
    • 3. What is the remedy?
  102. Q's to ask in re lease requiring development
    • 1. Is there an obligation to reasonbly develop? (Usu., case law requires)
    • 2. Will the annual payment of royalty fulfill the reasonable development requirement, if it exists? (Royalty credited upon production is not consideration––expected consideration is return from development)
    • 3. Does breach of an implied covenant cause forfeiture? (Not usually)
  103. Consideration credited on production
    If coal co. pay "rental" but it's considered part of consideration for production, it does not help the issue of lease requiring development. The consideration is supposed to come from development, i.e., it's not a rental payment
  104. Non-payment of minimum royalty effect on lease
    Can void lease
  105. Implied promise of reasonable work
    Leases have implied promise of reasonable work; notice od default not required––when no consideration present, duty to develop is a condition, not a covenant
  106. K interpretation:
    • 1. Is K ambiguous?
    • 2. If ambiguous, use parol ev.
    • 3. If not, four corners
  107. Diligent mining v. continuous mining
    Not the same. Diligence largely depends upon the circumstances (demand for coal, quality of mienrals, etc.)
  108. Substantial noncompliance with lease––Factors
    • 1. Quantity requirements?
    • 2. Particular operations required?
    • 3. Particular type of equipment required?
    • 4. Diligent or continuous activity? Diligent ≠ continuous
  109. In suspense rental holdings
    If there's an argument about how much is owed, POP keeps money in separate bank acct until dispute is settled
  110. POP
    Purchaser of Production: An agent of the lessee who pays the lessor (the lessee is not the payor)
  111. Unitization
    • All tracts leased are viewed as one, even if leased by different lessors (e.g., mining "in the vicinity" triggers start on all land)
    • NB: Unitization works best when "block of coal" is defined; otherwise it doesn't apply
  112. Canon of Construction: Redundancy
    If cts see redundancy, they'll try to read meaning into all of the words
  113. "Practical exhaustion"
    • Method of aboiding mineral royalties; only works if there is "iffy" quality minerals
    • NB: Doesn't work if substantial good quality coal, known about a leasing remains
  114. "Iffy" quality coal, lessor liability for mineral royalty
    Lessor not liable until workable seam found
  115. Why accept minimum royalties?
    • 1. Income stream makes lease attractive;
    • 2. Helps w/ consideration arguments
  116. First marketable product rule
    Royalty is based upon gross proceeds of minerals; mineral co bears the cost of getting product to market
  117. Royalty in kind
    Instead of cash, lessor gets mineral in natural form
  118. Problem w/ royalty in kind
    • If it's uranium: Gov't comes knocking
    • POP problems: lessee's POP made a pipeline so that all minerals would be sold to POP, if lessor wants in kind, lessee can't provide all minerals and they'll break K
  119. Difference:
    "Clay or other minerals mined and sold" v.
    "Clay or other minerals removed from leased land"
    The latter: Clay doesn't have to by sold, thus potentially requiring payment before sale
  120. Unclarity in "for all clay removed from the leased premises"
    Removed from ground or taken over the lease boundary?
  121. Executive right
    • Right to grant leases––100% right to elase the entire tract (but all eget same deal)
    • NB: Makes lease more valuable than a fractionalized interest
  122. Executive right––Right to directly develop?
    Yes. Executive has a duty to the other mineral owners to develop
  123. Non-executive development
    Tex: Nope. Non-execs can't self-develop.
  124. Duty of executive right holder
    • Fiduciary: Not anymore.
    • Utmost good faith and fair dealing: Prevailing view.
    • Good faith w/o bad faith: Viewed in equity.
  125. Executive right––Utmost good faith and fair dealin
    • Exec. must obtain for non-exects:
    • 1. Every benefit that exect gets
    • 2. Must get what executive would have negotiated for itself as if there were no nonexecutive interst
  126. Executive right––Good faith, w/o bad faith
    • Objected std: reasonable and prudent under the circumstances
    • Sup. Ct. views in equity
  127. Substantial compliance K compliance std.
    • GA: Change does not materially alter the consideration
    • NB: Common law = strict compliance
  128. Royalty Payor statutes
    • 1. If you still a royalty owner, they can get significant compensation
    • 2. Payee is lessor
    • 3. Allows treble damages in worst cases (and insane interst rates and atty fees)
    • 4. Can be suspended if title quandary or such is present
    • NB: Note 2, pg.183
  129. Fice ways to terminate lease:
    • 1. Termination (expires on its own terms, no notice of default)
    • 2. Surrender
    • 3. Forfeiture provision (w/o notice of default)
    • 4. Abandonment
    • 5. Equity (no other remedy at law)
  130. Perpetual royalty leases
    • States abhor
    • Not enforceable for lack of consideration
  131. Minimum royalty for lease to be valid
    Some states passed law requiring 1/8 royalty minimum for valid leases; what about costs? (e..g, if costs were deducted, was <1/8); SC said leases valid, costs were allowed
  132. Release requirements
    Failure to give release = cause of action for slander of title
  133. Std. of Car: To lessor
    LEssee can't interfere w/ mining operations and then sue mining co. for not operating
  134. Interference
    Lessor can'tbe the one to stop production (and then sue for no production); e.g., lessor sues lessee, lessee must stop and mine accumulates water and slate
  135. Forfeiture and interference
    No forfeiture unless clearly shown that opponent didn't behave like a reasonably prudent operator
  136. Std. of Care: To third parties
    Can't damage 3d party's mining through lessee's meg
  137. Mining partnership, elements
    • 1. Joint ownership
    • 2. Joint operation
    • 3. Express or implied agreement to share profits and losses
  138. Joint control––What establishes?
    • OK: Actively joining in promotion, conduct, mgmt, giving orders, buying equip, hiring people
    • Policy: Stops huge coal cos from setting up shell corps to avoid liability
  139. Subsidence
    Any movement of the soil from natural position
  140. Surface support requirement 
    • Only need to provide support for surface as contemplated at the time of separation of mineral estate
    • KY: Must leave surface in "natrual state"; absolute right, neg. not considered
  141. HY "Natural state"
    The condition of the surface, including reasonable and foreseeable improvements thereupon, at the time the coal is severed, not from the fee, but from the earth
  142. Ku: "Natural state"
    Condition of sruface, including reasonable and contemplatable improvements when coal is mined
  143. Measurement of dmg for subsidence
    • Permanent dmg: Change in FMV
    • Non-permanent: Reasonably cost to repair
    • NB: Punitives are available for malice or reckless acts
  144. Broad form deed
    Generalized deed; usu. allows coal owner to do anything "deemed necessary"
  145. Limitations on surface use rights
    • 1. Reasonable, non neg., non excessive
    • 2. For benefit of mineral interest
    • 3. In accord w/ terms of the lease
    • 4. In compliance w/ accommodation doctrine
    • 5. In compliance w/ stat and reg law
  146. Elements to "Broad Deed"
    • 1. Right to use and operate on the surface
    • 2. Release of liability for surfae dmg
    • 3. Detailed description of access easements
  147. PA estates
    • 1. Surface estate
    • 2. Mineral estate
    • 3. Right of support
  148. Obstruction doctrine
    • If lesor or surface owner obstructs lessee's title or lessee's quiet enjoyment of use, then:
    • 1. Equity may toll running of time under lease (e.g., lessor's axns delay activity for  ayear, lease is extended a year)
    • 2. Lessor or surface owner may be enjoined and be liable for dmgs
  149. SOPA
    • Goal: Protect surface owners from sruface disruption
    • Requires: Permit from Public Service Comm'n to mine; may go to ct. if surface owner goes "nonconsent"
    • NB: Requires a mineral owner (not developer) to get a hearing and you must own the entire leasehold (even 1/16 non-ownership = no hearding)
  150. Notice requirement for statutory abandonment of minerals
    None. Enactment of the Act counted.
  151. Indiana automatic reversion after 20 years statute
    • 1. DP? Nope. Act has legit purpose
    • 2. Taking? Nope. No notice needed, enactment of Act was notice enough
    • 3. Exception for multiple tract owners =P Q? Nope. Rational basis for singling out multiple tract owners.
    • NB: It was the failure to use the property that cause the lapse, not state action
  152. Significance of state-created property rights
    Rights are created subj. to "Reasoanble conditions"; state can thus use its police power to abrogate some of those rights
  153. Trouble w/ police power
    Exercising arbitrarily
  154. Termination w/o notice answer
    • 1. State needs to just pass and publish law. Owners charged w/ notice (A grace period helpd)
    • 2. There is a difference between self-acting lapse laws and judicial proceedings––the former ends no notice
    • E.g., 20 year lapse statute
  155. RP abandonment
    Can't abandon RP; BUT, in states like OK, mineral rights are more like profit a prendre, so you can abandon them
  156. §125 Clean Air Act
    • Exec brance can prohibit a major fuel burning stationary source from using fuels other than locally or regionally available coal when needed to prevent or minimize significant local or regional economic disruption or unempoyment
    • NB: EPA didn't enforce this
  157. Ways to comply w/ §125 Clean Air Act
    • 1. Low sulphur coal; or
    • 2. Install scrubbers
  158. CC two part test
    • 1. Is regulated activity in the stream of commerce?
    • 2. Are means adopted by Cong. appropriate?
  159. Dormant CC exceptions
    • 1. CAn subsidize local interest and incidentally burden interstate commerce unless burden exceeds local interest
    • 2. State is an active participant, such as an active buyer/seller. Can favor local merchants!
  160. Acid mine drainage
    • Fe(III) precipitates as Fe(OH)3, a yellow-orange slurry known as yellow boy when mine waters comes into contact w/ fresh water
    • NB: Considered public nuisance
  161. Water pollution––State police power?
  162. Test for nuisance (e.g., water pollution) abatement acceptable police power
    • 1. Are means adopted reasonably needed fro abatement of nuisance?
    • 2. Are the means not undul oppressive to policed party?
  163. Two requirements for state action
    • 1. Public interest requires such an interference (ends)
    • 2. Means used are reasonably needed and related
    • NB: Police power must reasonably be adapted to its purpose and only inhibit property rights to the extent needed to preserve public welfare
  164. Takings clause
    • 5th amendment: "nor shall priv property be taken for public use w/o just compensation"
    • NB: Not const right to property BIT no Const. disregard of the right of property
  165. Kohler Act
    • PA law preventing mining of antracite if mining results in subsidence
    • Exception: Where surface is owned by coal owners; and
    • 2. Development is more than 150 ft from sturcture owned by someone else
    • UNCONST: Wipes out property rights––different from room and pillar requirements because coal co could still make money, they couldn't under Kohler
  166. Mere enactment of Acts = taking?
    • Only if denies owner economically viable use of the land.
    • Reasons it may not:
    • 1. Doesn't categorically stop mining on its face, only regulates conditions under which mining can occur
    • 2. Doesn't stop other available uses (e.g., gold)
    • 3. Ripeness: No injury; no seeking administrative relief
  167. Regulatory taking
    Only does if it denies an owner all economically viable use of the land
  168. Public interests v. private interest in re takings
    Only public interests are allowed to uphold a taking
  169. Insurance payouts in re takings
    Does not mitigate––many acts are preventative; insurance is palliative after damage has been incurred
  170. "Safety"
    Dress laws up as "for the public safety" to get law passed
  171. Importance of land division
    Dividing cleverly could result in takings of entire property (leaning toward a taking), rather than a piece of peoperty (which mitigates against a taking)
  172. Support Estate (PA)
    Has no real value, just part of the bundle––a party can lose one part of the bundle and not by subjected to a compensation-required taking
  173. Nuisance exception vs. public use
    Public use is just a threshold question, states can invoke nuisance exception to avoid a taking (dispute as to the breadth of this technique, however)
  174. Takings Test situations
    • 1. Takings in which there is not a 100% takings of right
    • 2. More complete takings
  175. Proper way to challenge permit withholding:
    • 1. APA
    • 2. Admin.; then

    3. Dist. Ct.
  176. Agins test for IDing a takings
    • Weigh private and public interests
    • e.g., preserving swamps is a public interest, preventing pollution is too––however weighed against complete loss of private right would probably fail, especially when pollution is minimal/non-existent
  177. Questions in re: Where to begin a takings action:
    Start administrative axn and then sue? This delays actions greatly.
  178. Traditoinal Takings / Penn Central Test
    • The court must consider:
    • 1. Economic impact of the restirciton on property;
    • 2. Restriction interference w/ investment-bacekd expectations;
    • 3. Character o the gov't axn
    • Result: If these three things are found to cause a takings, next:
    • 1. Determine date of takings
    • 2. Valuation method; and
    • 3. Legal effect of the compensation (e.g., exchange provision)
  179. Steps following determination that a takings ensued
    • 1. Determine date of takings
    • 2. Determine valuation method (e.g., coal was x at the takings and a lower price y later: which one?)
    • 3. Legal effect of the compensation (e.g., "exchange provision"––is the legal effect adequate?)
  180. Takings under the 5h amendment
    • 1. Weigh public and private interests
    • 2. Gov't can prevent nuisance w/o taking
  181. Date of Takings: Valuation
    • Normally when permit is denied, unless the statute is very specifically designed to prevent the axn and denies all possible use of the land
    • e.g., "No mining in the Tongue River."
  182. Mere enactment of a statute a taking?
    Can be. Difficult to win.
  183. SMCRA: Unsuitable for Surface Mining
    • Designation imposes no surface mining zones:
    • 1. Incompatible w/ state/local use
    • 2. Affect certain "Fragile" lands
    • 3. Affect renewable resources and/or aquifers
    • 4. Areas prone to natural hazards like flooding