|
PROTECTING A COMMUNITY'S DRINKING WATER SUPPLY
FROM HARMFUL MINING
State of Ohio ex rel. R.T.G., Inc. v.
State of Ohio
The Village of Pleasant City is a small, rural community in
Guernsey County, Ohio, in the Wills Creek Valley, just east of the
confluence of Buffalo Fork and Buffalo Creek. In response to a
petition by the Village, the State of Ohio has designated certain land
as unsuitable for mining to protect the sole-source aquifer that
serves as Pleasant City's drinking-water supply. R.T.G., Inc.
and other landowners have sued the State for compensation, claiming
that the designation has taken their property.
The importance of the Pleasant City aquifer to the Village
of Pleasant City and the surrounding area cannot be overstated.
The aquifer is the only groundwater system in Guernsey County
or neighboring Noble County capable of producing significant
amounts of water. The Pleasant City wells supply water
to approximately one thousand residents of the Village and
to the Village's fire department, three churches, the post-office,
three farms, a beauty shop, ice-cream shop, a bar, and the
Valley Township garage. In 1987, the U.S. Environmental
Protection Agency designated the Pleasant City Aquifer and
the known boundaries of its recharge area as the "sole-source"
aquifer under the federal Safe Drinking Water Act.
Mining can harm the productivity of the aquifer and the recharge
area in at least two ways. First, excavated mine pits are
dewatered, which may reduce groundwater levels. Second, mining
companies replace the original, water-bearing, stratified deposits
with less permeable "mine spoil," which affects the water
storage capacity and transmission ability of the aquifer and recharge
area.
An Ohio appeals court had concluded that the
unsuitable-for-mining designation worked a compensable taking
of three properties that are very close to the City's wells.
CRC filed an amicus
brief in the Ohio Supreme Court on behalf of the Village
in support of the State arguing that no taking occurred because
mining in the area would constitute a nuisance.
But the Ohio Supreme Court, finding a discrete
and severable property interest in coal rights, rejected decades
of takings precedent, including Penn Central, Keystone,
and Tahoe. Without explaining why, the court held that
the Ohio Constitution provides greater protection than the
Fifth Amendment. The court then ruled that the mining ban
worked a taking of all RTG property in the affected area regardless
of whether surface rights or adjacent parcels retained value.
What's more, the court basically ignored the potential effect
of mining on the region's aquifer, simply holding that "mining
itself is not a nuisance."
This is a stunning departure from established law that reopens
debate in Ohio on the parcel-as-a-whole rule and casts into
doubt whether background principles of Ohio nuisance law are
broad enough to protect against environmental degradation.
The State has sought reconsideration, and CRC has moved for
leave to support the request. On January 8, 2003, the motion
was denied. The decision can be viewed at: http://www.sconet.state.oh.us/rod/documents/0/2002/2002-Ohio-6716.doc
|
