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Application of the Law of “Takings” to Restrictions on Mineral Development

Barton H. Thompson, Jr., Mineral Development and Land Use (1995)

Since 1980, the United States Supreme Court (joined by a number of federal and state courts) has embarked on a new and active defense of property rights under the “takings protections” of the federal Constitution. After several decades of upholding virtually all property regulations in the face of takings challenges, the Court has created several categories of virtual “per se” regulatory takings and breathed new life into the takings protections.

How the Court's new activism will affect expanding restrictions on mineral development, however, is open to question. Most of the Court's recent cases have involved regulation of real property and have reflected an apparent unease with growing environmental and “public access” demands. In the one recent case to deal with mineral restrictions, the Court bucked its own proproperty rights trend and upheld a Pennsylvania statute that required coal mine operators to keep up to 50 percent of their coal in place and to repair surface damage caused by subsidence even if surface owners had waived their rights.1 To reach this result, moreover, the Court had to distinguish the foundation of modern takings jurisprudence—Pennsylvania Coal Co. v. Mahon,2 in which Justice Holmes held that a remarkably similar Pennsylvania statute required compensation.3 The Court's new activism, nonetheless, provides mineral developers with a set of potentia