480 U.S. 470
Argued Nov. 10, 1986.
Decided March 9, 1987.
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
4 of Pennsylvania's Bituminous Mine Subsidence and Land Conservation
Act (Act) prohibits coal mining that causes subsidence damage
to pre-existing public buildings, dwellings, and cemeteries.
Implementing regulations issued by Pennsylvania's Department
of Environmental Resources (DER) require 50% of the coal beneath
§ 4-protected structures to be kept in place to provide surface
support, and extend § 4's protection to water courses.
Section 6 of the Act authorizes the DER to revoke a
mining permit if the removal of coal causes damage to a §
4-protected structure or area and the operator has not within
six months repaired the damage, satisfied any claim arising
therefrom, or deposited the sum that repairs will reasonably
cost as security. Petitioners, who own or control substantial
coal reserves under Act-protected property, filed suit in
Federal District Court seeking to enjoin the DER from enforcing
the Act and regulations.
The complaint alleged, inter alia, that Pennsylvania
recognizes a separate "support estate" in addition
to the surface and mineral estates in land;
that approximately 90% of the coal petitioners will
mine was severed from surface estates between 1890 and 1920;
that petitioners typically acquired waivers of any
damages claims that might result from coal removal;
that § 4, as implemented by the 50% rule, and § 6 violate
the Fifth Amendment's Takings Clause;
and that § 6 violates Article I's Contracts Clause.
Because petitioners had not yet alleged or proved any
specific injury caused by the enforcement of §§ 4 and 6 or
the regulations, the only question before the District Court
was whether the mere enactment of §§ 4 and 6 and the regulations
constituted a taking.
The District Court granted DER's motion for summary
judgment on this facial challenge.
The Court of Appeals affirmed, holding that Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322,
does not control; that
the Act does not effect a taking;
and that the impairment of private contracts effectuated
by the Act was justified by the public interests protected
by the Act.
Petitioners have not satisfied their burden of showing that
§§ 4 and 6 and the regulations' 50% rule constitute a taking
of private property without compensation in violation of the Fifth and
Fourteenth Amendments. Pennsylvania Coal does not control
this case because the two factors there considered relevant
-- the Commonwealth's interest in enacting the law and the
extent of the alleged taking -- here support the Act's constitutionality.
Unlike the statute considered in Pennsylvania Coal, the
Act is intended to serve genuine, substantial, and legitimate
public interests in health, the environment, and the fiscal
integrity of the area by minimizing damage to surface areas.
None of the indicia of a statute enacted solely for
the benefit of private parties identified in Pennsylvania
Coal are present here.
Petitioners' argument that § 6's remedies are unnecessary
to satisfy the Act's public purposes because of the Commonwealth's
insurance program that reimburses repair costs is not persuasive,
since the public purpose is served by deterring mine operators
from causing damage in the first place by making them assume
Thus, the Commonwealth has merely exercised its police
power to prevent activities that are tantamount to public
nuisances. The character of this governmental action leans heavily against
finding a taking.
The record in this case does not support a finding similar
to the one in Pennsylvania
Coal that the Act makes it impossible for petitioners to
profitably engage in their business, or that there has been
undue interference with their investment-backed expectations.
Because this case involves only a facial constitutional
challenge, such a finding is necessary to establish a taking.
However, petitioners have never claimed that their
mining operations, or even specific mines, have been unprofitable
since the Act was passed;
nor is there evidence that mining in any specific
location affected by the 50% rule has been unprofitable.
In fact, the only relevant evidence is testimony
indicating that § 4 requires petitioners to leave 27 million
tons (less than 2%) of their coal in place.
Petitioners' argument that the Commonwealth has effectively
appropriated this coal since it has no other useful purpose
if not mined fails because the 27 million tons do not constitute
a separate segment of property for taking law purposes.
The record indicates that only 75% of petitioners'
underground coal can be profitably mined in any event, and
there is no showing that their reasonable "investment-backed
expectations" have been materially affected by the
§ 4-imposed duty.
Petitioners' argument that the Act constitutes a
taking because it entirely destroys the value of their unique
support estate also fails.
As a practical matter, the support estate has value
only insofar as it is used to exploit another
Thus, the support estate is not a separate segment
of property for takings law purposes since it constitutes
just one part of the mine operators' bundle of property
rights. Because petitioners retain the right to mine virtually
all the coal in their mineral estates, the burden the Act
places on the support estate does not constitute a taking.
Moreover, since there is no evidence as to what percentage
of petitioners' support estates, either in the aggregate
or with respect to any individual estate, has been affected
by the Act, their Takings Clause facial challenge fails.
Section 6 does not impair petitioners' contractual agreements
in violation of Article I, § 10, of the Constitution by denying
petitioners their right to hold surface owners to their contractual
waivers of liability for surface damage.
The Contracts Clause has not been read literally to
obliterate valid exercises of the States' police power to
protect the public health and welfare.
Here, the Commonwealth has a significant and legitimate
public interest in preventing subsidence damage to the § 4-protected
buildings, cemeteries, and water courses, and has determined
that the imposition of liability on coal companies is necessary
to protect that interest. This determination, is entitled to deference because
the Commonwealth is not a party to the
in question. Thus,
the impairment of petitioners' right to enforce the generations-old
damages waivers is amply justified by the public purposes
served by the Act.
F.2d 707 (CA 3 1985), affirmed.
J., delivered the opinion of the Court, in which BRENNAN,
WHITE, MARSHALL, and BLACKMUN, JJ., joined.
REHNQUIST, C.J., filed a dissenting opinion, in which
POWELL, O'CONNOR, and SCALIA, JJ., joined, post, p. ----.
E. Lee argued the cause for petitioners.
With him on the briefs were Benjamin W. Heineman, Jr.,
Michael A. Nemeroff, Carter G. Phillips, Henry McC. Ingram,
and Thomas C. Reed.
S. Gordon, Chief Deputy Attorney General of Pennsylvania,
argued the cause for respondent.
With him on the brief was LeRoy S. Zimmerman, Attorney
Briefs of amici curiae urging reversal were filed for the
Mid‑Atlantic Legal Foundation et al. by Richard B. McGlynn;
for the National Coal Association et al. by Harold P. Quinn,
Jr.; and for the Pacific Legal Foundation by Ronald A. Zumbrun,
Robert K. Best, and Lucinda Low Swartz.
of amici curiae urging affirmance were filed for the State
of California ex rel. John K. Van de Kamp et al. by Mr. Van
de Kamp, attorney General of California, pro se, Richard C.
Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant
Attorneys General, Richard M. Frank, and Craig C. Thompson,
and by the Attorneys General for their respective States as
follows: John Steven Clark of Arkansas, Jim Smith of Florida,
Corinne K.A. Watanabe of Hawaii, Linley E. Pearson, of Indiana,
Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana,
Stephen H. Sachs of Maryland, Francis X. Bellotti of Massachusetts,
James E. Tierney of Maine, Frank J. Kelley of Michigan, Hubert
H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi,
William L. Webster of Missouri, Robert M. Spire of Nebraska,
Stephen E. Merrill of New Hampshire, W. Cary Edwards of New
Jersey, Robert Abrams of New York, Lacy H. Thornburg of North
Carolina, Michael Turpin of Oklahoma, Dave Frohnmayer of Oregon,
Mark V. Meierhenry of South Dakota, W.J. Michael Cody of Tennessee,
Jeffrey l. Amestoy of Vermont, Kenneth O. Eikenberry of Washington,
and Bronson C. La Follette of Wisconsin; for the National
Conference of State Legislatures et al. by Benna Ruth Solomon,
Joyce Holmes Benjamin, Beate Bloch, and Robert H. Freilich;
and for the Pennsylvania State Grange et al. by K.W. James
Justice STEVENS, delivered the opinion of the Court.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158,
67 L.Ed. 322 (1922), the Court reviewed the constitutionality
of a Pennsylvania statute that admittedly destroyed "previously
existing rights of property and contract."
Id., at 413, 43 S.Ct., at 159.
Writing for the Court, Justice Holmes explained:
hardly could go on if to some extent values incident to property
could not be diminished without paying for every such change
in the general law.
As long recognized, some values are enjoyed under an
implied limitation and must yield to the police power.
But obviously the implied limitation must have its
limits, or the contract and due process clauses are gone.
One fact for consideration in determining such limits
is the extent of the diminution. When it reaches a certain
magnitude, in most if not in all cases there must be an exercise
of eminent domain and compensation to sustain the act.
So the question depends upon the particular
In that case the "particular facts"
led the Court to hold that the Pennsylvania Legislature had
gone beyond its constitutional powers when it enacted a statute
prohibiting the mining of anthracite coal in a manner that
would cause the subsidence of land on which certain structures
Now, 65 years later, we address a different
set of "particular facts," involving the Pennsylvania
Legislature's 1966 conclusion that the Commonwealth's existing
mine subsidence legislation had failed to protect the public
interest in safety, land conservation, preservation of affected
municipalities' tax bases, and land development in the Commonwealth.
Based on detailed findings, the legislature enacted
the Bituminous Mine Subsidence and Land Conservation Act (Subsidence
Act or the Act), Pa.Stat.Ann., Tit. 52, § 1406.1 et seq. (Purdon
contend, relying heavily on our decision in Pennsylvania Coal,
that §§ 4 and 6 of the Subsidence Act and certain implementing
regulations violate the Takings Clause, and that § 6 of the
Act violates the Contracts Clause of the Federal Constitution.
The District Court and the Court of Appeals concluded
that Pennsylvania Coal does not control for several reasons
and that our subsequent cases make it clear that neither §
4 nor § 6 is unconstitutional on its face.
Coal mine subsidence is the lowering of
strata overlying a coal mine, including the land surface,
caused by the extraction of underground coal. This lowering
of the strata can have devastating effects. [FN1]
It often causes substantial damage
475 to foundations, walls, other
and the integrity of houses and buildings.
Subsidence frequently causes sinkholes or troughs in
land which make the land difficult or impossible to develop.
Its effect on farming has been well documented -- many
subsided areas cannot be plowed or properly prepared.
Subsidence can also cause the loss of groundwater and
surface ponds. [FN2]
In short, it presents the type of environmental concern
that has been the focus of so much federal, state, and local
regulation in recent decades. [FN3]
See generally Department of the Interior, Lee & Abel,
Subsidence from Underground Mining:
Environmental Analysis and Planning Considerations,
Geological Survey Circular 2-12, p. 876 (1983);
P. Mavrolas & M. Schechtman, Coal Mine Subsidence
6-8 (1981); Blazey
& Strain, Deep Mine Subsidence -- State Law and the Federal
Response, 1 Eastern Mineral Law Foundation § 1.01, pp. 1-5
of the Interior, Bureau of Mines, Moebs, Subsidence Over Four
Room-and-Pillar Sections in Southwestern Pennsylvania, R18645
No. 95-218, p. 126 (1977).
"Wherever [subsidence effects] extend, damage can occur
to buildings, roads, pipelines, cables, streams, water impoundments,
wells, and aquifers.
Buildings can be cracked or tilted;
roads can be lowered or cracked;
streams, water impoundments, and aquifers can all be
drained into the underground excavations. Oil and gas wells can be severed, causing their contents
to migrate into underground mines, into aquifers, and even
into residential basements.
Sewage lines, gas lines, and water lines can all be
severed, as can telephone and electric cables."
Blazey & Strain, supra, § 1.01.
Indeed, in 1977, Congress passed the Federal Surface Mining
Control and Reclamation Act, 91 Stat. 445, 30 U.S.C. § 1201
et seq., which includes regulation of subsidence caused by
underground coal mining.
See 30 U.S.C. § 1266.
Despite what their name may suggest, neither
of the "full extraction" mining methods currently
used in western Pennsylvania
[FN4] enables miners to extract all subsurface coal;
considerable amounts need to be left in the ground
to provide access, support, and ventilation to the mines.
Additionally, mining companies have long been required by
various Pennsylvania laws and regulations, the legitimacy
of which is not challenged here, to leave coal in certain
areas for public safety reasons. [FN5]
Since 1966, Pennsylvania has placed an additional set
of restrictions on the amount of coal that may be
these restrictions are designed to diminish subsidence
and subsidence damage in the vicinity of certain structures
FN4. The two "full extraction" coal
mining methods in use in western Pennsylvania are the room
and pillar method, and the longwall method. App. 90-91.
FN5. For example, Pennsylvania law requires
that coal beneath and adjacent to certain large surface bodies
of water be left in place. Pa.Stat.Ann., Tit. 52, § 3101 et
seq. (Purdon 1966).
Subsidence Act authorizes the Pennsylvania Department of Environmental
Resources (DER) to implement and enforce a comprehensive program
to prevent or minimize subsidence and to regulate its consequences.
Section 4 of the Subsidence Act, Pa.Stat.Ann., Tit.
52, § 1406.4 (Purdon Supp.1986), prohibits mining that causes
subsidence damage to three categories of structures that were
in place on April 17, 1966: public buildings and noncommercial buildings generally used
by the public; dwellings
used for human habitation;
and cemeteries. [FN6]
Since 1966 the DER has applied 477
a formula that generally requires 50%
of the coal beneath structures protected by § 4 to be kept
in place as a means of providing surface support. [FN7]
Section 6 of the Subsidence Act, Pa.Stat.Ann., Tit.
52, § 1406.6 (Purdon Supp.1986), authorizes the DER to revoke
a mining permit if the removal of coal causes damage to a
structure or area protected by § 4 and the operator has not
within six months either repaired the damage, satisfied any
claim arising therefrom, or deposited a sum equal to the reasonable
cost of repair with the DER as security. [FN8]
FN6. Section 4 provides:
"Protection of surface structures against
damage from cave‑in, collapse, or subsidence
"In order to guard the health, safety
and general welfare of the public, no owner, operator, lessor,
lessee, or general manager, superintendent or other person
in charge of or having supervision over any bituminous coal
mine shall mine bituminous coal so as to cause damage as a
result of the caving‑in, collapse or subsidence of the
following surface structures in place on April 27, 1966, overlying
or in the proximity of the mine: "(1) Any public building
or any noncommercial structure customarily used by the public,
including but not being limited to churches, schools, hospitals,
and municipal utilities or municipal public service operations.
"(2) Any dwelling used for human habitation;
"(3) Any cemetery or public burial ground;
unless the current owner of the structure consents
and the resulting damage is fully repaired or compensated."
In response to the enactment in 1977 of the
Federal Surface Mining Control and Reclamation Act, 91 Stat.
445, 30 U.S.C. § 1201 et seq., and regulations promulgated
by the Secretary of the Interior in 1979, 44 Fed.Reg. 14902,
the Pennsylvania DER adopted new regulations extending the
statutory protection to additional classes of buildings and
(a)(1) public buildings and non-commercial
buildings customarily used by the public [after April 27,
1966], including churches, schools, hospitals, courthouses,
and government offices;
"(4) perennial streams and impoundments
of water with the storage volume of 20 acre feet; "(5)
aquifers which serve as a significant source of water supply
to any public water system; and
"(6) coal refuse disposa[l]" areas.
25 Pa.Code §§ 89.145(a) and 89.146(b) (1983).
FN7. The regulations define the zone for which
the 50% rule applies:
"(2) The support area shall be rectangular
in shape and determined by projecting a 15 degree angle of
draw from the surface to the coal seam, beginning 15 feet
from each side of the structure.
For a structure on a surface slope of 5.0% or greater,
the support area on the downslope side of the structure shall
be extended an additional distance, determined by multiplying
the depth of the overburden by the percentage of the surface
However, this 50% requirement is neither an
absolute floor nor ceiling. It may be waived by the Department
upon a showing that alternative measures will prevent subsidence
damage. § 89.146(b)(5).
Alternatively, more stringent measures may be imposed,
or mining may be prohibited, if it appears that leaving 50%
of the coal in place will not provide adequate support.
FN8. Although some subsidence eventually occurs
over every underground mine, the extent and timing of the
subsidence depends upon a number of factors, including the
depth of the mining, the geology of the overlying strata,
the topography of the surface, and the method of coal removal.
The DER believes that the support provided by its 50%
rule will last in almost all cases for the life of the structure
being protected. Since 1966, petitioners have mined under
approximately 14,000 structures or areas protected by § 4;
there have been subsidence damage claims with respect
to only 300. Stipulations
of Counsel 41 and 42, App. 90.
1982, petitioners filed a civil rights action in the United
States District Court for the Western District of Pennsylvania
seeking to enjoin officials of the DER from enforcing the
Subsidence Act and its implementing regulations. Petitioners
are an association of coal mine operators, and four corporations
that are engaged, either directly or through affiliates, in
underground mining of bituminous coal in western Pennsylvania.
The members of the association and the corporate petitioners
own, lease, or otherwise control substantial coal reserves
beneath the surface of property affected by the Subsidence
defendants in the action, respondents here, are the Secretary
of the DER, the Chief of the DER's Division of Mine Subsidence,
and the Chief of the DER's Section on Mine Subsidence Regulation.
complaint alleges that Pennsylvania recognizes three separate
estates in land: The
mineral estate; the
surface estate; and
the "support estate." Beginning well over 100 years
ago, landowners began severing title to underground coal and
the right of surface support while retaining or conveying
away ownership of the surface estate.
It is stipulated that approximately 90% of the coal
that is or will be mined by petitioners in western Pennsylvania
was severed from the surface in the period between 1890 and
acquiring or retaining the mineral estate, petitioners or
their predecessors typically acquired or retained certain
additional rights that would enable them to extract and remove
the coal. Thus,
they acquired the right to deposit wastes, to provide for
drainage and ventilation, and to erect facilities such as
tipples, roads, or railroads, on the surface.
Additionally, they typically acquired a waiver of any
claims for damages that might result from the removal of the
the portions of the complaint that are relevant to us, petitioners
alleged that both § 4 of the Subsidence Act, as implemented
479 by the 50% rule, and § 6 of
the Subsidence Act, constitute a taking of their private property
without compensation in violation of the Fifth and Fourteenth
Amendments. They also alleged that § 6 impairs their contractual
agreements in violation of
§ 10, of the Constitution. [FN9]
The parties entered into a stipulation of facts pertaining
to petitioners' facial challenge, and filed cross-motions
for summary judgment on the facial challenge.
The District Court granted respondents' motion.
FN9. Petitioners also challenged various other
portions of the Subsidence Act below, see 771 F.2d 707, 718-719
(1985); 581 F.Supp.
511, 513, 519-520 (1984), but have not pursued these claims
in this Court.
rejecting petitioners' Takings Clause claim, the District
Court first distinguished Pennsylvania Coal, primarily on
the ground that the Subsidence Act served valid public purposes
that the Court had found lacking in the earlier case. 581 F.Supp. 511, 516 (W.D.Pa.1984). The District Court found that the restriction on the
use of petitioners' property was an exercise of the Commonwealth's
police power, justified by Pennsylvania's interest in the
health, safety, and general welfare of the public.
In answer to petitioners' argument that the Subsidence
Act effectuated a taking because a separate, recognized interest
in realty -- the support estate -- had been entirely destroyed,
the District Court concluded that under Pennsylvania law the
support estate consists of a bundle of rights, including some
that were not affected by the Act.
That the right to cause damage to the surface may constitute
the most valuable "strand" in the bundle of rights
possessed by the owner of a support estate was not considered
controlling under our decision in Andrus v. Allard, 444 U.S.
51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979).
rejecting petitioners' Contracts Clause claim, the District
Court noted that there was no contention that the Subsidence
480 Act or the DER regulations had
impaired any contract to which the Commonwealth was a party.
Since only private contractual obligations had been impaired,
the court considered it appropriate to defer to the legislature's
determinations concerning the public purposes served by the
court found that the adjustment of the rights of the contracting
parties was tailored to those "significant and legitimate"
public purposes. 581
F.Supp., at 514. At the parties' request, the District Court
certified the facial challenge for appeal.
Court of Appeals affirmed, agreeing that Pennsylvania Coal
does not control because the Subsidence Act is a legitimate
means of "protect[ing] the environment of the Commonwealth,
its economic future, and its well-being." 771 F.2d 707,
715 (1985). The Court of Appeals' analysis of the Subsidence Act's effect
on petitioners' property differed somewhat from the District
In rejecting the argument that the support estate had
been entirely destroyed, the Court of Appeals did not rely
on the fact that the support estate itself constitutes a bundle
of many rights, but rather considered the support estate as
just one segment of a larger bundle of rights that invariably
includes either the surface estate or the mineral estate.
As Judge Adams explained:
focus upon the support estate separately when assessing the
diminution of the value of plaintiffs' property caused by
the Subsidence Act therefore would serve little purpose.
The support estate is more properly viewed as only
one 'strand' in the plaintiff's 'bundle' of property rights,
which also includes the mineral estate.
As the Court stated in Andrus, '[t]he destruction of
one "strand" of the bundle is not a taking because
the aggregate must be viewed in its entirety.'
444 U.S. at 65 [100 S.Ct. at 326]....
The use to which the mine operators wish to put the
support estate is forbidden.
However, because the plaintiffs still possess valuable
mineral rights that enable
them profitably to mine coal, subject
only to the Subsidence Act's requirement that they prevent
subsidence, their entire 'bundle' of property rights has not
Id., at 716.
With respect to the Contracts Clause claim,
the Court of Appeals agreed with the District Court that a
higher degree of deference should be afforded to legislative
determinations respecting economic and social
legislation affecting wholly private contracts than when
the State impairs its own agreements.
The court held that the impairment of private agreements
effectuated by the Subsidence Act was justified by the legislative
finding "that subsidence damage devastated many surface
structures and thus endangered the health, safety, and economic
welfare of the Commonwealth and its people." Id., at
718. We granted certiorari, 475 U.S. 1080, 106 S.Ct. 1456,
89 L.Ed.2d 714 (1986), and now affirm.
Petitioners assert that
disposition of their takings claim
[FN10] calls for no more than a straightforward application
of the Court's decision in Pennsylvania Coal Co. v. Mahon.
Although there are some obvious similarities between
the cases, we agree with the Court of Appeals and the District
Court that the similarities are far less significant than
the differences, and that Pennsylvania Coal does not control
"[N]or shall private property be taken for public use,
without just compensation."
U.S. Const., Amdt. 5.
This restriction is applied to the States through the
See Chicago B. & Q. R. Co. v. Chicago, 166 U.S.
226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).
Pennsylvania Coal, the Pennsylvania Coal Company had served
notice on Mr. and Mrs. Mahon that the company's mining operations
beneath their premises would soon reach a point that would
cause subsidence to the surface.
The Mahons filed a bill in equity seeking to enjoin
the coal company from removing any coal that would cause "the
caving in, collapse
482 or subsidence" of their
bill acknowledged that the Mahons owned only "the surface
or right of soil" in the lot, and that the coal company
had reserved the right to remove the coal without any liability
to the owner of the surface estate. Nonetheless, the Mahons
asserted that Pennsylvania's then recently enacted Kohler
Act of 1921, P.L. 1198, Pa.Stat.Ann., Tit. 52, § 661 et seq.
(Purdon 1966), which prohibited mining that caused subsidence
under certain structures, entitled them to an injunction.
initially having entered a preliminary injunction pending
a hearing on the merits, the Chancellor soon dissolved it,
plaintiffs' bill contains no averment on which to base by
implication or otherwise any finding of fact that any interest
public or private is involved in the defendant's proposal
to mine the coal except the private interest of the plaintiffs
in the prevention of private injury."
Tr. of Record in Pennsylvania Coal v. Mahon, O.T. 1922,
No. 549, p. 23.
The Pennsylvania Supreme Court reversed,
concluding that the Kohler Act was a proper exercise of the
police power. 274 Pa. 489, 118 A. 491 (1922).
One Justice dissented.
He concluded that the Kohler Act was not actually intended
to protect lives and safety, but rather was special legislation
enacted for the sole benefit of the surface owners who had
released their right to support. Id., at 512-518, 118 A.,
The company promptly appealed to this
Court, asserting that the impact of the statute was so severe
that "a serious shortage of domestic fuel is threatened."
Motion to Advance for Argument in Pennsylvania Coal
v. Mahon, O.T. 1922, No. 549, p. 3.
The company explained that until the Court ruled, "no
anthracite coal which is likely to cause surface subsidence
can be mined," and that strikes were threatened
throughout the anthracite coal fields.
[FN11] In its
argument in this Court, the company contended that the Kohler
Act was not a bona fide exercise of the police power, but
in reality was nothing more than " 'robbery under the
forms of law' " because its purpose was "not to
protect the lives or safety
of the public generally but merely to augment the property
rights of a favored few."
See 260 U.S., at 396-398, 43 S.Ct., at 159, quoting
Loan Assn. v. Topeka, 20 Wall. 655, 664, 22 L.Ed. 455 (1874).
The urgency with which the case was treated is evidenced by
the fact that the Court issued its decision less than a month
after oral argument;
a little over a year after the test case had been commenced.
Justice Brandeis' dissent, this Court accepted the company's
his opinion for the Court, Justice Holmes first characteristically
decided the specific case at hand in a single, terse paragraph:
is the case of a single private house.
No doubt there is a public interest even in this, as
there is in every purchase and sale and in all that happens
within the commonwealth.
Some existing rights may be modified even in such a
v. Knox, 148 Mass. 368 [19 N.E. 390].
But usually in ordinary private affairs the public
interest does not warrant much of this kind of interference.
A source of damage to such a house is not a public
nuisance even if similar damage is inflicted on others in
The damage is not common or public.
Wesson v. Washburn Iron Co., 13 Allen, 95, 103. The
extent of the public interest is shown by the statute to be
limited, since the statute ordinarily does not apply to land
when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal
could be provided for by notice.
Indeed the very foundation of this bill is that the
defendant gave timely notice of its intent to mine under the
the other hand the extent of the taking is great.
It purports to abolish what is recognized in Pennsylvania
as an estatein
*484 land -- a very valuable estate
-- and what is declared by the Court below to be a contract
hitherto binding the plaintiffs.
If we were called upon to deal with the plaintiffs'
position alone, we should think it clear that the statute
does not disclose a public interest sufficient to warrant
so extensive a destruction of the defendant's constitutionally
260 U.S., at 413-414, 43 S.Ct., at 159.
Then -- uncharacteristically -- Justice
Holmes provided the parties with an advisory opinion discussing
"the general validity of the Act."
the advisory portion of the Court's opinion, Justice Holmes
rested on two propositions, both critical to the Court's decision.
First, because it served only private interests, not
health or safety, the Kohler Act could not be "sustained
as an exercise of the police power."
Id., at 414, 43 S.Ct., at 159.
Second, the statute made it "commercially impracticable"
to mine "certain coal" in the areas affected by
the Kohler Act. [FN13]
FN12. "But the case has been treated as one in which the general
validity of the act should be discussed.
The Attorney General of the State, the City of Scranton,
and the representatives of other extensive interests were
allowed to take part in the argument below and have submitted
their contentions here.
It seems, therefore, to be our duty to go farther in
the statement of our opinion, in order that it may be known
at once, and that further suits should not be brought in vain."
260 U.S., at 414, 43 S.Ct., at 159.
"What makes the right to mine coal valuable is that it
can be exercised with profit.
To make it commercially impracticable to mine certain
coal has very nearly the same effect for constitutional purposes
as appropriating or destroying it.
This we think that we are warranted in assuming that
the statute does."
Id., at 414-415, 43 S.Ct. at 159-160. This assumption
was not unreasonable in view of the fact that the Kohler Act
may be read to prohibit mining that causes any subsidence
-- not just subsidence that results in damage to surface structures.
The record in this case indicates that subsidence will
almost always occur eventually. See n. 8, supra.
The holdings and assumptions of the Court
in Pennsylvania Coal provide obvious and necessary reasons
for distinguishing Pennsylvania Coal from the case before
485 The two factors that
the Court considered relevant, have become integral parts
of our takings analysis.
We have held that land use regulation can effect a
taking if it "does not substantially advance legitimate
state interests, ... or denies an owner economically viable
use of his land."
Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980) (citations omitted);
see also Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631
(1978). Application of these tests to petitioners' challenge
demonstrates that they have not satisfied their burden of
showing that the Subsidence Act constitutes a taking.
First, unlike the Kohler Act, the character of the
governmental action involved here leans heavily against finding
a taking; the Commonwealth of Pennsylvania has acted to arrest what it
perceives to be a significant threat to the common welfare.
Second, there is no record in this case to support
a finding, similar to the one the Court made in Pennsylvania
Coal, that the Subsidence Act makes it impossible for petitioners
to profitably engage in their business, or that there has
been undue interference with their investment-backed expectations.
The Public Purpose
Unlike the Kohler Act,
which was passed upon in Pennsylvania Coal, the Subsidence
Act does not merely involve a balancing of the private economic
interests of coal companies against the private interests
of the surface owners.
The Pennsylvania Legislature specifically found that
important public interests are served by enforcing a policy
that is designed to minimize subsidence in certain areas. Section 2 of the Subsidence Act provides:
act shall be deemed to be an exercise of the police powers
of the Commonwealth for the protection of the health, safety
and general welfare of the people of the Commonwealth, by
providing for the conservation of surface land areas which
may be affected in the mining of bituminous coal by methods
other than 'open pit' or
486 'strip' mining, to aid in the
protection of the safety of the public, to enhance the value
of such lands for taxation, to aid in the preservation of
surface water drainage and public water supplies and generally
to improve the use and enjoyment of such lands and to maintain
primary jurisdiction over surface coal mining in Pennsylvania.''
Pa.Stat.Ann., Tit. 52, § 1406.2 (Purdon Supp.1986).
The District Court and the Court of Appeals
were both convinced that the legislative purposes
[FN14] set forth in the statute were genuine, substantial,
and legitimate, and we have no reason to conclude otherwise.
The legislature also set forth rather detailed findings about
the dangers of subsidence and the need for legislation.
See Pa.Stat.Ann., Tit. 52, § 1406.3 (Purdon Supp.1986).
"We are not disposed to displace the considered judgment
of the Court of Appeals on an issue whose resolution is so
contingent upon an analysis of state law."
Runyon v. McCrary, 427 U.S. 160, 181, 96 S.Ct. 2586,
2599, 49 L.Ed.2d 415 (1976).
None of the indicia of a statute enacted
solely for the benefit of private parties identified in Justice
Holmes' opinion are present here.
First, Justice Holmes explained that the Kohler Act
was a "private benefit" statute since it "ordinarily
does not apply to land when the surface is owned by the owner
of the coal." 260
U.S., at 414, 43 S.Ct. at 159.
The Subsidence Act, by contrast, has no such exception.
The current surface owner may only waive the protection
of the Act if the DER consents.
See 25 Pa. Code § 89.145(b) (1983).
Moreover, the Court was forced to reject the Commonwealth's
safety justification for the Kohler Act because it found that
the Commonwealth's interest in safety could as easily have
been accomplished through a notice requirement to landowners.
The Subsidence Act, by contrast, is designed to accomplish
a number of widely varying interests, with reference to which
petitioners have not suggested alternative methods through
which the Commonwealth could proceed.
Petitioners argue that at least § 6, which
requires coal companies to repair subsidence damage or pay
damages to those 487 who suffer subsidence damage, is unnecessary
because the Commonwealth administers an insurance program
that adequately reimburses surface owners for the cost
of repairing their property.
But this argument rests on the mistaken premise that
the statute was motivated by a desire to protect private parties.
In fact, however, the public purpose that motivated
the enactment of the legislation is served by preventing the
damage from occurring in the first place -- in the words of
the statute -- "by providing for the conservation of
surface land areas." Pa.Stat.Ann., Tit. 52, § 1406.2
The requirement that the mine operator assume the financial
responsibility for the repair of damaged structures deters
the operator from causing the damage at all -- the Commonwealth's
main goal -- whereas an insurance program would merely reimburse
the surface owner after the damage occurs. [FN16]
We do not suggest that courts have "a license to judge
the effectiveness of legislation," post, at 1255, n.
3, or that courts are to undertake "least restrictive
alternative" analysis in deciding whether a state regulatory
scheme is designed to remedy a public harm or is instead intended
to provide private benefits.
That a land use regulation may be somewhat overinclusive
or underinclusive is, of course, no justification for rejecting
Euclid v. Ambler Realty Co., 272 U.S. 365, 388-389, 47 S.Ct.
114, 118, 71 L.Ed. 303 (1926).
But, on the other hand, Pennsylvania Coal instructs
courts to examine the operative provisions of a statute, not
just its stated purpose, in assessing its true nature. In
Pennsylvania Coal, that inquiry led the Court to reject the
Pennsylvania Legislature's stated purpose for the statute,
because the "extent of the public interest is shown by
the statute to be limited." 260 U.S., at 413-414, 43
S.Ct., at 159.
In this case, we, the Court of Appeals, and the District
Court, have conducted the same type of inquiry the Court in
Pennsylvania Coal conducted, and have determined that the
details of the statute do not call the stated public purposes
Thus, the Subsidence Act differs from
the Kohler Act in critical and dispositive respects.
With regard to the Kohler Act, the Court believed that
the Commonwealth had acted only to ensure against damage to
some private landowners' homes.
Justice Holmes stated that if the private individuals
needed support for their structures, they should not have
"take[n] the risk of acquiring
only surface rights."
260 U.S., at 416, 43 S.Ct., at 160.
Here, by contrast, the Commonwealth is acting to protect
the public interest in health, the environment, and the fiscal
integrity of the area. That private individuals erred in taking
a risk cannot estop the Commonwealth from exercising its police
power to abate activity akin to a public nuisance. The Subsidence
Act is a prime example that "circumstances may so change
in time ... as to clothe with such a [public] interest what
at other times ... would be a matter of purely private concern." Block v. Hirsh, 256 U.S. 135, 155, 41 S.Ct. 458, 459, 65 L.Ed.
Coal the Court recognized that the nature of the State's interest
in the regulation is a critical factor in determining whether
a taking has occurred, and thus whether compensation is required.
[FN17] The Court
distinguished the case before it from a case it had decided
eight years earlier, Plymouth Coal Co. v. Pennsylvania, 232
U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713 (1914).
There, "it was held competent for the legislature
to require a pillar of coal to be left along the line of adjoining
Pennsylvania Coal, 260 U.S., at 415, 43 S.Ct., at 160.
Justice Holmes explained that unlike the Kohler Act, the statute
challenged in Plymouth Coal dealt with "a requirement
for the safety of employees invited into the mine, and secured
an average reciprocity of advantage that has been recognized
as a justification of various laws."
260 U.S., at 415, 43 S.Ct., at 160.
FN17. In his dissent, Justice Brandeis argued
that the State has an absolute right to prohibit land use
that amounts to a public nuisance. Id., 260 U.S., at 417,
43 S.Ct., at 160.
Justice Holmes' opinion for the Court did not contest
that proposition, but instead took issue with Justice Brandeis'
conclusion that the Kohler Act represented such a prohibition.
Id., at 413‑414, 43 S.Ct., at 159.
cases before and since Pennsylvania Coal have recognized that
the nature of the State's action is critical in takings analysis.
[FN18] In Mugler
v. Kansas, 123 U.S.
623, 8 S.Ct. 273, 31 L.Ed. 205
 (1887), for example, a Kansas
distiller who had built a brewery while it was legal to do
so challenged a Kansas constitutional amendment which prohibited
the manufacture and sale of intoxicating liquors. Although the Court recognized that the "buildings
and machinery constituting these breweries are of little value"
because of the Amendment, id., at 657, 8 S.Ct., at 294, Justice
Harlan explained that a
FN18. Of course, the type of taking alleged
is also an often critical factor.
It is well settled that a " 'taking' may more
readily be found when the interference with property can be
characterized as a physical invasion by government, see, e.g.,
United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed.
1206 (1946), than when interference arises from some public
program adjusting the benefits and burdens of economic life
to promote the common good."
Penn Central Transportation Co. v. New York City, 438
U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978).
While the Court has almost invariably found that the
permanent physical occupation of property constitutes a taking,
see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 435-438, 102 S.Ct. 3164, 3175-3177, 73 L.Ed.2d 868 (1982),
the Court has repeatedly upheld regulations that destroy or
adversely affect real property interests. See, e.g., Connolly
v. Pension Benefit Guaranty Corporation, 475 U.S. 211, 106
S.Ct. 1018, 89 L.Ed.2d 166 (1986);
Penn Central Transportation Co. v. New York City, 438
U.S., at 125, 98 S.Ct., at 2659;
Eastlake v. Forest City Enterprises, Inc., 426 U.S.
668, 674, n. 8, 96 S.Ct. 2358, 2362, n. 8, 49 L.Ed.2d 132
v. Hempstead, 369 U.S. 590, 592-593, 82 S.Ct. 987, 988-989,
8 L.Ed.2d 130 (1962);
Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct.
114, 71 L.Ed. 303 (1926); Gorieb v. Fox, 274 U.S. 603, 608,
47 S.Ct. 675, 677, 71 L.Ed. 1228 (1927);
Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed.
923 (1909). This
case, of course, involves land use regulation, not a physical
appropriation of petitioners' property.
simply upon the use of property for purposes that are declared,
by valid legislation, to be injurious to the health, morals,
or safety of the community, cannot, in any just sense, be
deemed a taking or appropriation of property....
The power which the States have of prohibiting such
use by individuals of their property as will be prejudicial
to the health, the morals, or the safety of the public, is
not -- and, consistently with the existence and safety of
organized society cannot be -- burdened with the condition
that the State must compensate such individual owners for
pecuniary losses they may sustain, by reason of their not
being permitted, by a noxious use of their property, to inflict
injury upon the community."
Id., at 668-669, 8 S.Ct., at 300-301.
490 See also Plymouth Coal Co., supra; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed.
348 (1915); Reinman
v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900 (1915);
Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992,
32 L.Ed. 253 (1888).
We reject petitioners' implicit assertion
that Pennsylvania Coal overruled these cases which focused
so heavily on the nature of the State's interest in the regulation.
Just five years after the Pennsylvania Coal decision,
Justice Holmes joined the Court's unanimous decision in Miller
v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928),
holding that the Takings Clause did not require the State
of Virginia to compensate the owners of cedar trees for the
value of the trees that the State had ordered destroyed.
The trees needed to be destroyed to prevent a disease
from spreading to nearby apple orchards, which represented
a far more valuable resource.
In upholding the state action, the Court did not consider
it necessary to "weigh with nicety the question whether
the infected cedars constitute a nuisance according to common
law; or whether
they may be so declared by statute."
Id., at 280, 48 S.Ct., at 247.
Rather, it was clear that the State's exercise of its
police power to prevent the impending danger was justified,
and did not require compensation.
See also Euclid v. Ambler Realty Co., 272 U.S. 365,
47 S.Ct. 114, 71 L.Ed. 303 (1926);
Omnia Commercial Co. v. United States, 261 U.S. 502,
509, 43 S.Ct. 437, 438, 67 L.Ed. 773 (1923).
Other subsequent cases reaffirm the important role
that the nature of the state action plays in our takings analysis.
See Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct.
987, 8 L.Ed.2d 130 (1962); Consolidated Rock Products Co. v. Los Angeles, 57 Cal.2d 515,
20 Cal.Rptr. 638, 370 P.2d 342, appeal dism'd, 371 U.S. 36,
83 S.Ct.145, 9 L.Ed.2d 112 (1962).
As the Court explained in Goldblatt :
"Although a comparison of values before and after"
a regulatory action "is relevant, ... it is by no means
369 U.S., at 594, 82 S.Ct., at 990. [FN19]
See also Agins v. Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980) (the question whether a taking
has occurred "necessarily requires a weighing of private
and public interests");
Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
155, 163, 101 S.Ct. 446, 451, 66 L.Ed.2d 358 (1980) ("No
police power justification is offered for the deprivation").
Court's hesitance to find a taking when the State merely restrains
uses of property that are tantamount to public nuisances is
consistent with the notion of "reciprocity of advantage"
that Justice Holmes referred to in Pennsylvania Coal. [FN20]
Under our system of government, one of the State's
primary ways of preserving the public weal is restricting
the uses individuals can make of their property.
While each of us is burdened somewhat by such restrictions,
we, in turn, benefit greatly from the restrictions that are
placed on others. [FN21]
See Penn Central Transportation Co. v. New York City,
438 U.S., at 144-150, 98 S.Ct., at 2669-2672 (REHNQUIST, J.,
California Reduction Co. v. Sanitary Reduction Works, 199
U.S. 306, 322, 26 S.Ct. 100, 104, 50 L.Ed. 204 (1905). These
restrictions are "properly treated as part of the burden
of common citizenship."
Kimball Laundry Co. v. United States, 338 U.S. 1, 5,
69 S.Ct. 1434, 1437, 93 L.Ed. 1765 (1949).
Long ago it was recognized that "all property
in 492 this
country is held under the implied obligation that the owner's
use of it shall not be injurious to the community," Mugler
v. Kansas, 123 U.S., at 665, 8 S.Ct., at 299;
see also Beer Co. v. Massachusetts, 97 U.S. (7 Otto)
25, 32, 24 L.Ed. 989 (1877), and the Takings Clause did not
transform that principle to one that requires compensation
whenever the State asserts its power to enforce it. [FN22]
See Mugler, 123 U.S., at 664, 8 S.Ct., at 298.
The special status of this type of state action can also be
understood on the simple theory that since no individual has
a right to use his property so as to create a nuisance or
otherwise harm others, the State has not "taken"
anything when it asserts its power to enjoin the nuisance-like
Sax, Takings, Private Property and Public Rights, 81 Yale
L.J. 149, 155‑161 (1971); Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv.L.Rev. 1165, 1235-1237 (1967). However, as the
current CHIEF JUSTICE has explained: "The nuisance exception to the taking guarantee is not
coterminous with the police power itself." Penn Central Transportation Co., 438 U.S., at 145, 98 S.Ct.,
at 2669 (REHNQUIST, J., dissenting).
This is certainly the case in light of our recent decisions
holding that the "scope of the 'public use' requirement
of the Takings Clause is 'coterminous with the scope of a
sovereign's police powers.' "
See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014,
104 S.Ct. 2862, 2879, 81 L.Ed.2d 815 (1984) (quoting Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 240, 104 S.Ct.
2321, 2329, 81 L.Ed.2d 186 (1984)).
See generally R. Epstein, Takings 108-112 (1985).
The Takings Clause has never been read to require the States
or the courts to calculate whether a specific individual has
suffered burdens under this generic rule in excess of the
Not every individual gets a full dollar return in benefits
for the taxes he or she pays;
yet, no one suggests that an individual has a right
to compensation for the difference between taxes paid and
the dollar value of benefits received.
FN22. Courts have consistently held that a
State need not provide compensation when it diminishes or
destroys the value of property by stopping illegal activity
or abating a public nuisance. See Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d
987 (1985) (hazardous waste operation);
Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980)
(brothel); MacLeod v. Takoma Park, 257 Md. 477, 263 A.2d 581 (1970) (unsafe
v. Burlington, 125 Vt. 8, 209 A.2d 499 (1965) (fire and health
hazard); Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415,
111 So. 801 (1927) (gambling facility);
People ex rel. Thrasher v. Smith, 275 Ill. 256, 114
N.E. 31 (1916) ( "bawdyhouse"). It
is hard to imagine a different rule that would be consistent
with the maxim "sic utere tuo ut alienum non laedas"
(use your own property in such manner as not to injure that
of another.) See
generally Empire State Insurance Co. v. Chafetz, 278 F.2d
41 (CA5 1960).
As Professor Epstein has recently commented:
"The issue of compensation cannot arise until
the question of justification has been disposed of.
In the typical nuisance prevention case, this question
is resolved against the claimant."
Epstein, supra, at 199.
In Agins v. Tiburon, we explained that
the "determination that governmental action constitutes
a taking, is, in essence, a determination that the public
at large, rather than a single owner, must bear the burden
of an exercise of state power in the public interest,"
and we recognized that this question "necessarily requires
a weighing of private and public interests." 447 U.S.,
at 260-261, 100 S.Ct., at 2141.
As the cases discussed above demonstrate, the public
interest in preventing activities similar to public nuisances
is a substantial one, which in many instances has not required
The Subsidence Act, unlike the Kohler Act, plainly
seeks to further such an interest.
Nonetheless, we need not rest our decision on this
factor alone, because petitioners have also failed to make
a 493 showing
of diminution of value sufficient to satisfy the test set
forth in Pennsylvania Coal and our other regulatory takings
of Value and Investment-Backed Expectations
The second factor that distinguishes this case from Pennsylvania
Coal is the finding in that case that the Kohler Act made
mining of "certain coal" commercially impracticable.
In this case, by contrast, petitioners have not shown
any deprivation significant enough to satisfy the heavy burden
placed upon one alleging a regulatory taking.
For this reason, their takings claim must fail.
addressing petitioners' claim we must not disregard the posture
in which this case comes before us.
The District Court granted summary judgment to respondents
only on the facial challenge to the Subsidence Act.
The court explained that "[b]ecause plaintiffs
have not alleged any injury due to the enforcement of the
statute, there is as yet no concrete controversy regarding
the application of the specific provisions and regulations.
Thus, the only question before this court is whether
the mere enactment of the statutes and regulations constitutes
a taking." 581
F.Supp., at 513 (emphasis added). The next phase of the case
was to be petitioners' presentation of evidence about the
actual effects the Subsidence Act had and would have on them.
Instead of proceeding in this manner, however, the parties
filed a joint motion asking the court to certify the facial
challenge for appeal. The parties explained that an assessment of the actual
impact that the Act has on petitioners' operations "will
involve complex and voluminous proofs," which neither
party was currently in a position to present, App. 15-17,
and stressed that if an appellate court were to reverse the
District Court on the facial challenge, then all of their
expenditures in adjudicating the as-applied challenge would
be wasted. Based
494 on these considerations, the
District Court certified three questions relating to the facial
FN23. The certified questions asked whether
§§ 4, 5, or 6 of the Subsidence Act, and various regulations:
"1. Violate the Rule of the Mahon Decision[,]
"2. Constitute Per Se Takings,
"3. Violate Article I, § 10 of the Constitution
of the United States." App. 12.
The Court of Appeals recognized the limited
nature of its inquiry, pointing out that it was passing only
on the facial challenge, and that the "as-applied challenge
remains for disposition in the district court."
771 F.2d, at 710, n. 3.
posture of the case is critical because we have recognized
an important distinction between a claim that the mere enactment
of a statute constitutes a taking and a claim that the particular
impact of government action on a specific piece of property
requires the payment of just compensation.
This point is illustrated by our decision in Hodel
v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), in which
we rejected a preenforcement challenge to the constitutionality
of the Surface Mining Control and Reclamation Act of 1977. We concluded that the District Court had been mistaken
in its reliance on Pennsylvania Coal as support for a holding
that two statutory provisions were unconstitutional
because they deprived coal mine operators of the use of
their land. The
court below ignored this Court's oft-repeated admonition that
the constitutionality of statutes ought not be decided except
in an actual factual setting that makes such a decision necessary.
See Socialist Labor Party v. Gilligan, 406 U.S. 583,
588 [92 S.Ct. 1716, 1719, 32 L.Ed.2d 317] (1972); Rescue Army
v. Municipal Court, 331 U.S. 549, 568-575, 584 [67 S.Ct. 1409,
1419-1423, 1427, 91 L.Ed. 1666] (1947);
Alabama State Federation of Labor v. McAdory, 325 U.S.
450, 461 [65 S.Ct. 1384, 1389, 89 L.Ed. 1725] (1945). Adherence
to this rule is particularly important in cases raising allegations
of an unconstitutional taking of private property. Just last Term, we reaffirmed:
" '[T]his Court has generally "been
unable to develop any 'set formula' for determining when 'justice
and fairness' require that economic injuries caused by public
action be compensated by the government, rather than remain
disproportionately concentrated on a few persons."
Rather, it has examined the "taking" question
by engaging in essentially ad hoc, factual inquiries that
have identified several factors -- such as the economic impact
of the regulation, its interference with reasonable investment
backed expectations, and the character of the government action
-- that have particular significance.'
Kaiser Aetna v. United States, 444 U.S. 164, 175 [100
S.Ct. 383, 390, 62 L.Ed.2d 332] (1979) (citations omitted).
"These 'ad hoc, factual inquiries' must
be conducted with respect to specific property, and the particular
estimates of economic impact and ultimate valuation relevant
in the unique circumstances.
"Because appellees' taking claim arose
in the context of a facial challenge, it presented no concrete
controversy concerning either application of the Act to particular
surface mining operations or its effect on specific parcels
of land. Thus,
the only issue properly before the District Court and, in
turn, this Court, is whether the 'mere enactment' of the Surface
Mining Act constitutes a taking.
See Agins v. Tiburon, 447 U.S. 255, 260 [100 S.Ct.
2138, 2141, 65 L.Ed.2d 106] (1980).
The test to be applied in considering this facial challenge
is fairly straightforward.
A statute regulating the uses that can be made of property
effects a taking if it 'denies an owner economically viable
use of his land....'
Agins v. Tiburon, supra, at 260 [100 S.Ct., at 2141];
see also Penn Central Transp. Co. v. New York City,
438 U.S. 104 [98 S.Ct. 2646, 57 L.Ed.2d 631] (1978)."
452 U.S., at 295-296, 101 S.Ct., at 2370.
thus face an uphill battle in making a facial attack on the
Act as a taking.
hill is made especially steep because petitioners have not
claimed, at this stage, that the Act makes it commercially
impracticable for them to continue mining
their bituminous coal interests in western Pennsylvania. Indeed,
petitioners have not even pointed to a single mine that can
no longer be mined for profit.
The only evidence available on the effect that the
Subsidence Act has had on petitioners' mining operations comes
from petitioners' answers to respondents' interrogatories.
Petitioners described the effect that the Subsidence
Act had from 1966-1982 on 13 mines that the various companies
operate, and claimed that they have been required to leave
a bit less than 27 million tons of coal in place to support
§ 4 areas. The
total coal in those 13 mines amounts to over 1.46 billion
App. 284. Thus
§ 4 requires them to leave less than 2% of their coal in place.
[FN24] But, as
we have indicated, nowhere near all of the underground coal
is extractable even aside from the Subsidence Act.
The categories of coal that must be left for § 4 purposes
and other purposes are not necessarily distinct sets, and
there is no information in the record as to how much coal
is actually left in the ground solely because of § 4.
We do know, however, that petitioners have never claimed
that their mining operations, or even any specific mines,
have been unprofitable since the Subsidence Act was passed.
Nor is there evidence that mining in any specific location
affected by the 50% rule has been unprofitable.
The percentage of the total that must be left in place under
§ 4 is not the same for every mine because of the wide variation
in the extent of surface development in different areas.
For 7 of the 13 mines identified in the record, 1%
or less of the coal must remain in place;
for 3 others, less than 3% must be left in place;
for the other 3, the percentages are 4%, 7.8%, and
petitioners have sought to narrowly define certain segments
of their property and assert that, when so defined, the Subsidence
Act denies them economically viable use.
They advance two alternative ways of carving their
property in order to reach this conclusion.
First, they focus on the specific tons of coal that
they must leave in the ground under
the Subsidence Act, and argue that the Commonwealth has effectively
appropriated this coal since it has no other useful purpose
if not mined.
Second, they contend that the Commonwealth has taken
their separate legal interest in property -- the "support
Because our test for regulatory
taking requires us to compare the value that has been taken
from the property with the value that remains in the property,
one of the critical questions is determining how to define
the unit of property "whose value is to furnish the denominator
of the fraction." Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv.L.Rev. 1165, 1192 (1967). [FN25]
In Penn Central the Court explained:
See also Sax, Takings and the Police Power, 74 Yale L.J. 36,
60 (1964); Rose, Mahon Reconstructed:
Why the Takings Issue is Still a Muddle, 57 S.Cal.L.Rev.
561, 566‑567 (1984).
'Taking' jurisprudence does not divide a single parcel into
discrete segments and attempt to determine whether rights
in a particular segment have been entirely abrogated.
In deciding whether a particular governmental action
has effected a taking, this Court focuses rather both on the
character of the action and on the nature of the interference
with rights in the parcel as a whole -- here the city tax
block designated as the 'landmark site.' "
438 U.S., at 130-131, 98 S.Ct., at 2662.
Similarly, in Andrus v. Allard, 444 U.S.
51, 100 S.Ct. 318, 62 L.Ed.2d 210
(1979), we held that "where an owner possesses
a full 'bundle' of property rights, the destruction of one
'strand' of the bundle is not a taking because the aggregate
must be viewed in its entirety."
Id., at 65-66, 100 S.Ct., at 326-327.
Although these verbal formulizations do not solve all
of the definitional issues that may arise in defining the
relevant mass of property, they do provide sufficient guidance
to compel us to reject petitioners' arguments.
498 The Coal in Place
The parties have stipulated that enforcement
of the DER's 50% rule will require petitioners to leave approximately
27 million tons of coal in place. Because they own that coal
but cannot mine it, they contend that Pennsylvania has appropriated
it for the public purposes described in the Subsidence Act.
This argument fails for the reason
explained in Penn Central and Andrus.
The 27 million tons of coal do not constitute a separate
segment of property for takings law purposes.
Many zoning ordinances place limits on the property
owner's right to make profitable use of some segments of his
requirement that a building occupy no more than a specified
percentage of the lot on which it is located could be characterized
as a taking of the vacant area as readily as the requirement
that coal pillars be left in place.
Similarly, under petitioners' theory
one could always argue that a setback ordinance requiring
that no structure be built within a certain distance from
the property line constitutes a taking because the footage
represents a distinct segment of property for takings law
Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927)
(upholding validity of setback ordinance) (Sutherland, J.).
There is no basis for treating the less than 2% of
petitioners' coal as a separate parcel of property.
We do not consider Justice Holmes' statement
that the Kohler Act made mining of "certain coal"
commercially impracticable as requiring us to focus on the
individual pillars of coal that must be left in place.
That statement is best understood as referring to the
Pennsylvania Coal Company's assertion that it could not undertake
profitable anthracite coal mining in light of the Kohler Act.
There were strong assertions in the record to support
that conclusion. For example, the coal company claimed that
one company was "unable to operate six large collieries
in the city of Scranton, employing more than five thousand
to Advance for Argument
499 in Pennsylvania Coal Co. v.
Mahon, O.T. 1922, No. 549, p. 2. [FN26]
As Judge Adams explained:
Of course, the company also argued that the Subsidence Act
made it commercially impracticable to mine the very coal that
had to be left in place.
Although they could have constructed pillars for support
in place of the coal, the cost of the artificial pillars would
have far exceeded the value of the coal.
See Brief for Plaintiff in Error in Pennsylvania Coal
v. Mahon, O.T. 1922, No. 549, pp. 7-9.
first blush, this language seems to suggest that the Court
would have found a taking no matter how little of the defendants'
coal was rendered unmineable -- that because 'certain' coal
was no longer accessible, there had been a taking of that
when one reads the sentence in context, it becomes clear that
the Court's concern was with whether the defendants' 'right
to mine coal ... [could] be exercised with profit.'
260 U.S. at 414 [43 S.Ct., at 159] (emphasis added)....
Thus, the Court's holding in Mahon must be assumed
to have been based on its understanding that the Kohler Act
rendered the business of mining coal unprofitable."
771 F.2d, at 716, n. 6.
When the coal that must remain beneath
the ground is viewed in the context of any reasonable unit
of petitioners' coal mining operations and financial-backed
expectations, it is plain that petitioners have not come close
to satisfying their burden of proving that they have been
denied the economically viable use of that property.
The record indicates that only about 75% of petitioners'
underground coal can be profitably mined in any event, and
there is no showing that petitioners' reasonable "investment-backed
expectations" have been materially affected by the additional
duty to retain the small percentage that must be used to support
the structures protected by § 4. [FN27]
We do not suggest that the State may physically appropriate
relatively small amounts of private property for its own use
without paying just compensation. The question here is whether there has been any taking
at all when no coal has been physically appropriated, and
the regulatory program places a burden on the use of only
a small fraction of the property that is subjected to regulation.
See generally n. 18, supra.
The Support Estate
Pennsylvania property law is apparently
unique in regarding the support estate as a separate interest
in land that can be conveyed apart from either the mineral
estate or the surface estate. [FN28]
Petitioners therefore argue that even if comparable
legislation in another State would not constitute a taking,
the Subsidence Act has that consequence
because it entirely destroys the value of their unique
It is clear, however, that our takings jurisprudence
forecloses reliance on such legalistic distinctions within
a bundle of property rights.
For example, in Penn Central, the Court rejected the
argument that the "air rights" above the terminal
constituted a separate segment of property for Takings Clause
U.S., at 130, 98 S.Ct., at 2662.
Likewise, in Andrus v. Allard, we viewed the right
to sell property as just one element of the owner's property
U.S., at 65-66, 100 S.Ct., at 326-327.
In neither case did the result turn on whether state
law allowed the separate sale of the segment of property.
See Charnetski v. Miners Mills Coal Mining Co., 270 Pa. 459,
113 A. 683 (1921); Penman
v. Jones, 256 Pa. 416, 100 A. 1043 (1917); Captline v. County
of Allegheny, 74 Pa.Commw. 85, 459 A.2d 1298 (1983), cert.
denied, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984);
see generally Montgomery, The Development of the Right
of Subjacent Support and the "Third Estate" in Pennsylvania,
25 Temple L.Q. 1 (1951).
The Court of Appeals, which is more familiar
with Pennsylvania law than we are, concluded that as a practical
matter the support estate is always owned by either the owner
of the surface or the owner of the minerals.
support estate consists of the right to remove the strata
of coal and earth that undergird the surface or to leave those
layers intact to support the surface and prevent subsidence.
These two uses cannot co-exist and, depending upon
the purposes of the owner of the support
*501 estate, one use or the other
must be chosen.
If the owner is a mine operator, the support estate
is used to exploit the mineral estate.
When the right of support is held by the surface owner,
its use is to support that surface and prevent subsidence.
Thus, although Pennsylvania law does recognize the support
estate as a 'separate' property interest, id., it cannot be
used profitably by one who does not also possess either the
mineral estate or the surface estate.
See Montgomery, The Development of the Right of Subjacent
Support and the 'Third Estate in Pennsylvania,' 25 Temple
L.Q. 1, 21 (1951)."
771 F.2d, at 715-716.
Thus, in practical terms, the
support estate has value only insofar as it protects or enhances
the value of the estate with which it is associated. Its value
is merely a part of the entire bundle of rights possessed
by the owner of either the coal or the surface.
Because petitioners retain the right to mine virtually
all of the coal in their mineral estates, the burden the Act
places on the support estate does not constitute a taking.
Petitioners may continue to mine coal profitably even
if they may not destroy or damage surface structures at will
in the process.
But even if we were to accept
petitioners' invitation to view the support estate as a distinct
segment of property for "takings" purposes, they
have not satisfied their heavy burden of sustaining a facial
challenge to the Act.
Petitioners have acquired or retained the support estate
for a great deal of land, only part of which is protected
under the Subsidence Act, which, of course, deals with subsidence
in the immediate vicinity of certain structures, bodies of
water, and cemeteries.
See n. 6, supra.
The record is devoid of any evidence on what percentage
of the purchased support estates, either in the aggregate
or with respect to any individual estate, has been affected
by the Act. Under
these circumstances, petitioners'
502 facial attack under the Takings
Clause must surely fail. [FN29]
Another unanswered question about the level of diminution
involves the District Court's observation that the support
estate carries with it far more than the right to cause subsidence
damage without liability.
See 581 F.Supp., at 519.
There is no record as to what value these other rights
have and it is thus impossible to say whether the regulation
of subsidence damage under certain structures, and the imposition
of liability for damage to certain structures, denies petitioners
the economically viable use of the support estate, even if
viewed as a distinct segment of property.
In addition to their challenge
under the Takings Clause, petitioners assert that § 6 of the
Subsidence Act violates the Contracts Clause by not allowing
them to hold the surface owners to their contractual waiver
of liability for surface damage.
Here too, we agree with the Court of Appeals and the District
Court that the Commonwealth's strong public interests in the
legislation are more than adequate to justify the impact of
the statute on petitioners' contractual agreements.
to the ratification of the Fourteenth Amendment, it was Article
I, § 10, that provided the primary constitutional check on
state legislative power. The first sentence of that section
State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal;
coin Money; emit
Bills of Credit; make
any Thing but gold or silver Coin a Tender in Payment of Debts;
pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title
of Nobility." U.S.
Const., Art. I, § 10.
Unlike other provisions in the
section, it is well settled that the prohibition against impairing
the obligation of contracts is not to be read literally.
W.B. Worthen Co. v. Thomas, 292 U.S. 426, 433, 54 S.Ct.
816, 818, 78 L.Ed. 1344 (1934).
The context in which the Contracts Clause is found,
the historical setting in which it was 503 adopted, [FN30] and our cases construing
the Clause, indicate that its primary focus was upon legislation
that was designed to repudiate or adjust pre-existing debtor-creditor
relationships that obligors were unable to satisfy.
See e.g., ibid.;
Home Building & Loan Assn. v. Blaisdell, 290 U.S.
398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). Even in such cases, the Court has refused to give the
Clause a literal reading.
Thus, in the landmark case of Home Building & Loan
Assn. v. Blaisdell, the Court upheld Minnesota's statutory
moratorium against home foreclosures, in part, because the
legislation was addressed to the "legitimate end"
of protecting "a basic interest of society," and
not just for the advantage of some favored group.
Id., at 445, 54 S.Ct., at 242.
"It was made part of the Constitution to remedy a particular
social evil -- the state legislative practice of enacting
laws to relieve individuals of their obligations under certain
contracts -- and thus was intended to prohibit States from
adopting 'as [their] policy the repudiation of debts or the
destruction of contracts or the denial of means to enforce
them,' Home Building & Loan Assn. v. Blaisdell, 290 U.S.
398, 439 [54 S.Ct. 231, 240, 78 L.Ed. 413] (1934)."
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234,
256, 98 S.Ct. 2716, 2728, 57 L.Ed.2d 727 (1978) (BRENNAN,
Justice Stewart explained:
is to be accepted as a commonplace that the Contract Clause
does not operate to obliterate the police power of the States.
'It is the settled law of this court that the interdiction
of statutes impairing the obligation of contracts does not
prevent the State from exercising such powers as are vested
in it for the promotion of the common weal, or are necessary
for the general good of the public, though contracts previously
entered into between individuals may thereby be affected.
This power, which in its various ramifications is known
as the police power, is an exercise of the sovereign right
of the Government to protect the lives, health, morals, comfort
and general welfare of the people, and is paramount to any
rights under contracts between individuals.'
Manigault v. Springs, 199 U.S. 473, 480 [26 S.Ct. 127,
130, 50 L.Ed. 274 (1905) ].
As Mr. Justice
504 Holmes succinctly put the matter
in his opinion for the Court in Hudson Water Co. v. McCarter,
209 U.S. 349, 357 [28 S.Ct. 529, 531, 52 L.Ed. 828 (1908)
]: 'One whose
rights, such as they are, are subject to state restriction,
cannot remove them from the power of the State by making a
contract about them.
The contract will carry with it the infirmity of the
subject matter.' "
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234,
241-242, 98 S.Ct. 2716, 2720-2721, 57 L.Ed.2d 727 (1978).
 In assessing the validity of petitioners'
Contracts Clause claim in this case, we begin by identifying
the precise contractual right that has been impaired and the
nature of the statutory impairment.
Petitioners claim that they obtained damages waivers
for a large percentage of the land surface protected by the
Subsidence Act, but that the Act removes the surface owners'
contractual obligations to waive damages. We agree that the statute operates as "a substantial
impairment of a contractual relationship," id., at 244,
98 S.Ct., at 2722, and therefore proceed to the asserted justifications
for the impairment. [FN31]
As we have mentioned above, we do not know what percentage
of petitioners' acquired support estate is in fact restricted
under the Subsidence Act.
See supra, at 1250.
Moreover, we have no basis on which to conclude just
how substantial a part of the support estate the waiver of
See id., at n. 29.
These inquiries are both essential to determine the
"severity of the impairment," which in turn affects
"the level of scrutiny to which the legislation will
be affected." Energy
Reserves Group, Inc. v. Kansas Power & Light Co., 459
U.S. 400, 411, 103 S.Ct. 697, 704, 74 L.Ed.2d 569 (1983). While these dearths in the record might be critical in
some cases, they are not essential to our discussion here
because the Subsidence Act withstands scrutiny even if it
is assumed that it constitutes a total impairment.
record indicates that since 1966 petitioners have conducted
mining operations under approximately 14,000 structures protected
by the Subsidence Act.
It is not clear whether that number includes the cemeteries
and water courses under which mining has been conducted.
In any event, it is petitioners' position that, because
they contracted 505
with some previous owners of property
generations ago, [FN32] they have a constitutionally protected
legal right to conduct their mining operations in a way that
would make a shambles of all those buildings and cemeteries.
As we have discussed, the Commonwealth has a strong
public interest in preventing this type of harm, the environmental
effect of which transcends any private agreement between contracting
Most of these waivers were obtained over 70 years ago as part
of the support estate which was itself obtained or retained
as an incident to the acquisition or retention of the right
to mine large quantities of underground coal. No question of enforcement of such a waiver against the
original covenantor is presented;
rather, petitioners claim a right to enforce the waivers
against subsequent owners of the surface.
This claim is apparently supported by Pennsylvania
precedent holding that these waivers run with the land.
See Kormuth v. United States Steel Co., 379 Pa. 365,
108 A.2d 907 (1954);
Scranton v. Phillips, 94 Pa. 15, 22 (1880). That the Pennsylvania courts might have had, or may in
the future have, a valid basis for refusing to enforce these
perpetual covenants against subsequent owners of the surface
rights is not necessarily a sufficient reason for concluding
that the legislative impairment of the contracts is permissible.
See Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct.
197, 68 L.Ed. 382 (1924);
Central Land Co. v. Laidley, 159 U.S. 103, 16 S.Ct.
80, 40 L.Ed. 91 (1895) (distinguishing legislative and judicial
Of course, the finding of a significant
and legitimate public purpose is not, by itself, enough to
justify the impairment of contractual obligations.
A court must also satisfy itself that the legislature's
"adjustment of 'the rights and responsibilities of contracting
parties [is based] upon reasonable conditions and [is] of
a character appropriate to the public purpose justifying [the
legislation's] adoption.' "
Energy Reserves Group, Inc. v. Kansas Power & Light
Co., 459 U.S. 400, 412, 103 S.Ct. 697, 704, 74 L.Ed.2d 569
(1983) (quoting United States Trust Co. v. New Jersey, 431
U.S. 1, 22, 97 S.Ct. 1505, 1517, 52 L.Ed.2d 92 (1977)).
But, we have repeatedly held that unless the State
is itself a contracting party, courts should " 'properly
defer to legislative judgment as to the necessity and reasonableness
of a particular measure.' "
Energy Reserves Group, Inc., 459 U.S., at 413, 103
S.Ct., at 705 (quoting United States Trust Co., 431 U.S.,
at 23, 97 S.Ct., at 1518).
we explained more fully above, the Subsidence Act plainly
survives scrutiny under our standards for evaluating impairments
of private contracts. [FN33]
The Commonwealth has determined that in order to deter
mining practices that could have severe effects on the surface,
it is not enough to set out guidelines and impose restrictions,
but that imposition of liability is necessary.
By requiring the coal companies either to repair the
damage or to give the surface owner funds to repair the damage,
the Commonwealth accomplishes both deterrence and restoration
of the environment to its previous condition.
We refuse to second-guess the Commonwealth's determinations
that these are the most appropriate ways of dealing with the
conclude, therefore, that the impairment of petitioners' right
to enforce the damages waivers is amply justified by the public
purposes served by the Subsidence Act.
Because petitioners did not raise the issue before the District
Court, the Court of Appeals rejected their attempt to argue
on appeal that the Subsidence Act also affects contracts to
which the Commonwealth is a party.
See 771 F.2d, at 718, n. 8.
of the Court of Appeals is
Chief Justice REHNQUIST, with whom Justice
POWELL, Justice O'CONNOR, and Justice SCALIA join, dissenting.
More than 50 years ago, this Court determined
the constitutionality of Pennsylvania's Kohler Act as it affected
the property interests of coal mine operators.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct.
158, 67 L.Ed. 322 (1922).
The Bituminous Mine Subsidence and Land Conservation
Act approved today effects an interference with such interests
in a strikingly similar manner.
The Court finds at least two reasons why this case
First, we are told, "the character of the governmental
action involved here leans heavily against finding a taking."
Ante, at 1242. Second, the Court concludes that the
Subsidence Act neither "makes it impossible for petitioners
507 to profitably engage in their
business," nor involves "undue interference with
[petitioners'] investment-backed expectations." Ibid. Neither
of these conclusions persuades me that this case is different,
and I believe that the Subsidence Act works a taking of petitioners'
I therefore dissent.
In apparent recognition of the obstacles
presented by Pennsylvania Coal to the decision it reaches,
the Court attempts to undermine the authority of Justice Holmes'
opinion as to the validity of the Kohler Act, labeling it
"uncharacteristically ... advisory."
Ante, at 1241.
I would not so readily dismiss the precedential value
of this opinion.
There is, to be sure, some language in the case suggesting
that it could have been decided simply by addressing the particular
application of the Kohler Act at issue in the case. See, e.g.,
Pennsylvania Coal, supra, at 414, 43 S.Ct., at 159 ("If
we were called upon to deal with the plaintiffs' position
alone, we should think it clear that the statute does not
disclose a public interest sufficient to warrant so extensive
a destruction of the defendant's constitutionally protected
The Court, however, found that the validity of the
Act itself was properly drawn into question:
"[T]he case has been treated as one in which the
general validity of the [Kohler] act should be discussed."
Ibid. [FN1] The
coal company clearly had an interest in obtaining a determination
that the Kohler Act was unenforceable if it worked a taking
without providing for compensation.
these reasons, I would not find the
opinion of the Court in Pennsylvania Coal advisory in any
FN1. The Pennsylvania Supreme Court, in the
decision under review, had also determined that the case called
for "consideration ... of the constitutionality of the
act itself." Mahon
v. Pennsylvania Coal Co., 274 Pa. 489, 494, 118 A. 491, 492
this Court, the coal company persisted in its claim that the
Pennsylvania statute took its property without just compensation.
See Brief for Plaintiff in Error in Pennsylvania Coal
Co. v. Mahon, O.T. 1922, No. 549, pp. 7-8, 16, 19-21, 28-33;
Brief for Defendants in Error in Pennsylvania Coal
Co. v. Mahon, O.T. 1922, No. 549, p. 73.
Court's implication to the contrary is particularly disturbing
in this context, because the holding in Pennsylvania Coal
today discounted by the Court has for 65 years been the foundation
of our "regulatory takings" jurisprudence.
See Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631
(1978); D. Hagman
& J. Juergensmeyer, Urban Planning and Land Development
Control Law 319 (2d ed. 1986) ("Pennsylvania Coal was
a monumental decision which remains a vital element in contemporary
We have, for example, frequently relied on the admonition
that "if regulation goes too far it will be recognized
as a taking." Pennsylvania
Coal, supra, 260 U.S., at 415, 43 S.Ct., at 160.
See, e.g., MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986);
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003, 104
S.Ct. 2862, 81 L.Ed.2d 815 (1984);
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83,
100 S.Ct. 2035, 2041, 64 L.Ed.2d 741 (1980);
Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct.
987, 990, 8 L.Ed.2d 130 (1962);
United States v. Central Eureka Mining Co., 357 U.S.
155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958).
Thus, even were I willing to assume that the opinion
in Pennsylvania Coal standing alone is reasonably subject
to an interpretation that renders more than half the discussion
"advisory," I would have no doubt that our repeated
reliance on that opinion establishes it as a cornerstone of
the jurisprudence of the Fifth Amendment's Just Compensation
accordingly approach this case with greater deference to the
language as well as the holding of Pennsylvania Coal than
does the Court.
Admittedly, questions arising under the Just Compensation
Clause rest on ad hoc factual inquiries, and must be decided
on the facts and circumstances in each case. See Penn Central
Transportation Co. v. New York City, supra, 438 U.S., at 124,
98 S.Ct., at 2659; United
States v. Central Eureka Mining Co., supra, 357 U.S., at 168,
78 S.Ct., at 1104.
Examination of the relevant factors presented here
convinces me that the differences between
509 them and those in Pennsylvania
Coal verge on the trivial.
Court first determines that this case is different from Pennsylvania
Coal because "the Commonwealth of Pennsylvania has acted
to arrest what it perceives to be a significant threat to
the common welfare." Ante, at 1242.
In my view, reliance on this factor represents both
a misreading of Pennsylvania Coal and a misunderstanding of
Court opines that the decision in Pennsylvania Coal rested
on the fact that the Kohler Act was "enacted solely for
the benefit of private parties," ante, at 1242, and "served
only private interests."
Ante, at 1242.
A review of the Kohler Act shows that these statements
are incorrect. The Pennsylvania Legislature passed the statute "as
remedial legislation, designed to cure existing evils and
v. Pennsylvania Coal Co., 274 Pa. 489, 495, 118 A. 491, 492
(1922) (quoting the Act). These were public "evils and abuses," identified
in the preamble as "wrecked and dangerous streets and
highways, collapsed public buildings, churches, schools, factories,
streets, and private dwellings, broken gas, water and sewer
systems, the loss of human life...."
Id., at 496, 118 A., at 493. [FN2]
The Pennsylvania Supreme Court recognized that these
concerns were "such as to create an emergency, properly
warranting the exercise of the police power...."
Id., at 497, 118 A., at 493.
There can be
no doubt that the Kohler Act was intended
to serve public interests.
FN2. That these were public "evils and
abuses" is further illustrated by the coverage of the
Kohler Act, which regulated mining under "any public
building or any structure customarily used by the public,"
including churches, schools, hospitals, theaters, hotels,
and railroad stations. Mahon v. Pennsylvania Coal, supra,
274 Pa., at 495, 118 A., at 492. Protected areas also included
streets, roads, bridges, or "any other public passageway,
dedicated to public use or habitually used by the public,"
as well as public utility structures, private homes, workplaces,
and cemeteries. Ibid.
several aspects of the Kohler Act limited its protection of
these interests, see Pennsylvania Coal, 260 U.S., at 414, 43 S.Ct., at 159, this Court
did not ignore the public interests served by the Act.
When considering the protection of the "single
private house" owned by the Mahons, the Court noted that
"[n]o doubt there is a public interest even in this."
Id., at 413, 43 S.Ct., at 159 (emphasis added).
It recognized that the Act "affects the mining
of coal under streets or cities in places where the right
to mine such coal has been reserved."
Id., at 414, 43 S.Ct., at 159.
See also id., at 416, 43 S.Ct., at 160 ("We assume
... that the statute was passed upon the conviction that an
exigency existed that would warrant it, and we assume that
an exigency exists that would warrant the exercise of eminent
The strong public interest in the stability of streets
and cities, however, was insufficient "to warrant achieving
the desire by a shorter cut than the constitutional way of
paying for the change." Ibid.
Thus, the Court made clear that the mere existence
of a public purpose was insufficient to release the government
from the compensation requirement:
"The protection of private property in the Fifth
Amendment presupposes that it is wanted for public use, but
provides that it shall not be taken for such use without compensation."
Id., at 415, 43 S.Ct., at 160.
Subsidence Act rests on similar public purposes.
These purposes were clearly stated by the legislature: "[T]o aid in the protection of the safety of the public,
to enhance the value of [surface area] lands for taxation,
to aid in the preservation of surface water drainage and public
water supplies and generally to improve the use and enjoyment
of such lands...."
Pa.Stat.Ann., Title 52, § 1406.2 (Purdon Supp.1986).
The Act's declaration of policy states that mine subsidence
"has seriously impeded land development ... has caused
a very clear and present danger to the health, safety and
welfare of the people of Pennsylvania [and] erodes the 511 tax base of the affected municipalities."
§§ 1406.3(2), (3), (4).
The legislature determined that the prevention of subsidence
would protect surface structures, advance the economic future
and well‑being of Pennsylvania, and ensure the safety
and welfare of the Commonwealth's residents.
it is clear that the Court has severely understated the similarity
of purpose between the Subsidence Act and the Kohler Act.
The public purposes in this case are not sufficient
to distinguish it from Pennsylvania Coal.
FN3. The Court notes that the particulars of
the Subsidence Act better serve these public purposes than
did the Kohler Act.
Ante, at 1242. This may well be true, but our inquiry into legislative purpose
is not intended as a license to judge the effectiveness of
considering the Fifth Amendment issues presented by
Hawaii's Land Reform Act, we noted that the Act, "like
any other, may not be successful in achieving its intended
'whether in fact the provisions will accomplish the objectives
is not the question:
the [constitutional requirement] is satisfied if ...
the ... [State] Legislature rationally could have believed
that the [Act] would promote its objective.' " Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 242, 104 S.Ct.
2321, 2330, 81 L.Ed.2d 186 (1984), quoting Western & Southern
Life Insurance Co. v. State Bd. of Equalization, 451 U.S.
648, 671-672, 101 S.Ct. 2070, 2084-2085, 68 L.Ed.2d 514 (1981).
Conversely, our cases have never found it sufficient
that legislation efficiently achieves its desired objectives
to hold that the compensation required by the Fifth Amendment
similarity of the public purpose of the present Act to that
Coal does not resolve the question whether a taking has occurred;
the existence of such a public purpose is merely a
necessary prerequisite to the government's exercise of its
See Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
239-243, 245, 104 S.Ct. 2321, 2328-2331, 2331-2332, 81 L.Ed.2d
186 (1984); Berman
v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102, 99 L.Ed.
27 (1954). The
nature of these purposes may be relevant, for we have recognized
that a taking does not occur where the government exercises
its unquestioned authority to prevent a property owner from
using his property to injure
others without having to compensate the value of the forbidden
Goldblatt v. Hemp 512 stead,
369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962);
Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143,
60 L.Ed. 348 (1915);
Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed.
205 (1887). See
generally Penn Central Transportation Co. v. New York City,
438 U.S., at 144-146, 98 S.Ct., at 2669-2670 (REHNQUIST, J.,
Court today indicates that this "nuisance exception"
alone might support its conclusion that no taking has occurred.
Despite the Court's implication to the contrary, see
ante, at 1242, and n. 15, the legitimacy of this purpose is
a question of federal, rather than state, law, subject to
independent scrutiny by this Court.
This statute is not the type of regulation that our
precedents have held to be within the "nuisance exception"
to takings analysis.
ease with which the Court moves from the recognition of public
interests to the assertion that the activity here regulated
is "akin to a public nuisance" suggests an exception
far wider than recognized in our previous cases.
"The nuisance exception to the taking guarantee,"
however, "is not coterminous with the police power itself,"
Penn Central Transportation, supra, at 145, 98 S.Ct., at 2669
(REHNQUIST, J., dissenting), but is a narrow exception allowing
the government to prevent "a misuse or illegal use."
Curtin v. Benson, 222 U.S. 78, 86, 32 S.Ct. 31, 32,
56 L.Ed. 102 (1911).
It is not intended to allow "the prevention of
a legal and essential use, an attribute of its ownership."
narrow nature of this exception is compelled by the concerns
underlying the Fifth Amendment.
Though, as the Court recognizes, ante, at 1245, the
Fifth Amendment does not prevent actions that secure a "reciprocity
of advantage," Pennsylvania Coal, supra, 260 U.S., at
415, 43 S.Ct., at 160, it is designed to prevent "the
public from loading upon one individual more than his just
share of the burdens of government, and says that when he
surrenders to the public something more and different from
that which is exacted from other members of the public, a
full and just equivalent shall be returned to him."
Monongahela Navigation Co. v.
United States, 148 U.S. 312, 325, 13 S.Ct. 622, 625,
37 L.Ed. 463 (1893).
See also Penn Central Transportation Co. v. New York
City, supra, 438 U.S., at 123-125, 98 S.Ct., at 2658-2659;
States,364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554
broad exception to the operation of the Just Compensation
Clause based on the exercise of multifaceted health, welfare,
and safety regulations would surely allow government much
greater authority than we have recognized to impose societal
burdens on individual landowners, for nearly every action
the government takes is intended to secure for the public
an extra measure of "health, safety, and welfare."
our cases applying the "nuisance" rationale have
involved at least two narrowing principles.
First, nuisance regulations exempted from the Fifth
Amendment have rested on discrete and narrow purposes.
See Goldblatt v. Hempstead, supra;
Hadacheck v. Sebastian, supra;
Mugler v. Kansas, supra.
The Subsidence Act, however, is much more than a nuisance
statute. The central purposes of the Act, though including
public safety, reflect a concern for preservation of buildings,
economic development, and maintenance of property values to
sustain the Commonwealth's tax base.
We should hesitate to allow a regulation based on essentially
economic concerns to be insulated from the dictates of the
Fifth Amendment by labeling it nuisance regulation.
and more significantly, our cases have never applied the nuisance
exception to allow complete extinction of the value of a parcel
of property. Though nuisance regulations have been sustained
despite a substantial reduction in value, we have not accepted
the proposition that the State may completely extinguish a
property interest or prohibit all use without providing compensation.
Thus, in Mugler v. Kansas, supra, the prohibition on manufacture
and sale of intoxicating liquors made the distiller's brewery
"of little value" but did not completely extinguish
the value of the building. Similarly, in Miller v. Schoene,
276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), the individual
forced to cut down his cedar trees nevertheless was able "to
use the felled trees."
Penn Central Transportation Co. v. New York City, supra,
438 U.S., at 126, 98 S.Ct., at 2660. The 514
restriction on surface mining upheld in Goldblatt v. Hempstead,
supra, may have prohibited "a beneficial use" of
the property, but did not reduce the value of the lot in question.
369 U.S., at 593, 594, 82 S.Ct., at 990.
In none of these cases did the regulation "destroy
essential uses of private property."
Curtin v. Benson, supra, 222 U.S., at 86, 32 S.Ct.,
petitioners' interests in particular coal deposits have been
By requiring that defined seams of coal remain in the
ground, see ante, at 1237-1238, and n. 7, § 4 of the Subsidence
Act has extinguished any interest one might want to acquire
in this property, for " 'the right to coal consists in
the right to mine it.' "
Pennsylvania Coal, 260 U.S., at 414, 43 S.Ct., at 159,
quoting Commonwealth ex rel. Keator v. Clearview Coal Co.,
256 Pa. 328, 331, 100 A. 820 (1917).
Application of the nuisance exception in these circumstances
would allow the State not merely to forbid one "particular
use" of property with many uses but to extinguish all
beneficial use of petitioners' property. [FN4]
FN4. Plymouth Coal Co. v. Pennsylvania, 232
U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713 (1914), did not go this
far. Though the Court in that case upheld a statute requiring
mine operators to leave certain amounts of coal in their mines,
examination of the opinion in Plymouth Coal reveals that the
statute was not challenged as a taking for which compensation
was due. Instead,
the coal company complained that the statutory provisions
for defining the width of required pillars of coal were constitutionally
deficient as a matter of procedural due process.
suggesting that the purposes alone are sufficient to uphold
the Act, the Court avoids reliance on the nuisance exception
by finding that the Subsidence Act does not impair petitioners'
investment-backed expectations or ability to profitably operate
This conclusion follows mainly from the Court's broad
definition of the "relevant mass of property," ante,
at 1248, which allows it to ascribe to the Subsidence Act
a less pernicious effect on the interests of the property
need to consider the effect of regulation on some identifiable
segment of property makes all important the admittedly difficult
task of defining the relevant 515 parcel.
See Penn Central Transportation Co. v. New York City,
438 U.S., at 149, n. 13, 98 S.Ct., at 2672, n. 13 (REHNQUIST,
J., dissenting). For the reasons explained below, I do not
believe that the Court's opinion adequately performs this
Pennsylvania Coal Court found it sufficient that the Kohler
Act rendered it "commercially impracticable to mine certain
U.S., at 414, 43 S.Ct., at 159.
The Court, ante, at 1249, observes that this language
is best understood as a conclusion that certain coal mines
could not be operated at a profit.
Petitioners have not at this stage of the litigation
rested their claim on similar proof; they have not "claimed that their mining operations, or
even any specific mines, have been unprofitable since the
Subsidence Act was passed."
Ante, at 1248.
The parties have, however, stipulated for purposes
of this facial challenge that the Subsidence Act requires
petitioners to leave in the ground 27 million tons of coal,
without compensation therefor.
Petitioners also claim that the Act extinguishes their
purchased interests in support estates which allow them to
mine the coal without liability for subsidence.
We are thus asked to consider whether these restrictions
are such as to constitute a taking.
Court's conclusion that the restriction on particular coal
does not work a taking is primarily the result of its view
that the 27 million tons of coal in the ground "do not
constitute a separate segment of property for takings law
at 1248. This conclusion cannot be based on the view that the
interests are too insignificant to warrant protection by the
Fifth Amendment, for it is beyond cavil that government appropriation
of "relatively small amounts of private property for
its own use" requires just compensation.
Ante, at 1249, n. 27.
Instead, the Court's refusal to recognize the coal
in the ground as a separate segment of property for takings
purposes is based on the fact that the
516 alleged taking is "regulatory,"
rather than a physical intrusion.
See ante, at 1244, n. 18.
On the facts of this case, I cannot see how the label
placed on the government's action is relevant to consideration
of its impact on property rights.
decisions establish that governmental action short of physical
invasion may constitute a taking because such regulatory action
might result in "as complete [a loss] as if the [government]
had entered upon the surface of the land and taken exclusive
possession of it."
United States v. Causby, 328 U.S. 256, 261, 66 S.Ct.
1062, 1065, 90 L.Ed. 1206 (1946).
Though the government's direct benefit may vary depending
upon the nature of its action, the question is evaluated from
the perspective of the property holder's loss rather than
the government's gain.
See ibid.; United
States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct.
357, 359, 89 L.Ed. 311 (1945); Boston Chamber of Commerce
v. Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460, 54 L.Ed.
725 (1910). Our
observation that "[a] 'taking' may more readily be found
when the interference with property can be characterized as
a physical invasion by government," Penn Central Transportation
Co. v. New York City, supra, 438 U.S., at 124, 98 S.Ct., at
2659, was not intended to alter this perspective merely because
the claimed taking is by regulation.
Instead, we have recognized that regulations -- unlike
physical invasions -- do not typically extinguish the "full
bundle" of rights in a particular piece of property.
In Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318,
327, 62 L.Ed.2d 210 (1979), for example, we found it crucial
that a prohibition on the sale of avian artifacts destroyed
only "one 'strand' of the bundle" of property rights,
"because the aggregate must be viewed in its entirety." This characteristic of regulations frequently makes unclear
the breadth of their impact on identifiable segments of property,
and has required that we evaluate the effects in light of
the "several factors" enumerated in Penn Central
"The economic impact of the regulation on the
claimant, ... the extent to which the regulation has interfered
with investment‑backed expectations, [and] the character
of the governmental action."
438 U.S., at 124, 98 S.Ct., at 2659.
one, however, would find any need to employ these analytical
tools where the government has physically taken an identifiable
segment of property. Physical appropriation by the government
leaves no doubt that it has in fact deprived the owner of
all uses of the land.
Similarly, there is no need for further analysis where
the government by regulation extinguishes the whole bundle
of rights in an identifiable segment of property, for the
effect of this action on the holder of the property is indistinguishable
from the effect of a physical taking. [FN5]
Thus, it is clear our decision in Andrus v. Allard,
supra, would have been different if the Government had confiscated
the avian artifacts.
In my view, a different result would also follow if
the Government simply prohibited every use of that property,
for the owner would still have been "deprive[d] of all
or most of his interest in the subject matter."
United States v. General Motors Corp. supra, 323 U.S.,
at 378, 65 S.Ct., at 359.
FN5. There is admittedly some language in Penn
Central Transportation Co. v. New York City, 438 U.S. 104,
130-131, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631 (1978), that
suggests a contrary analysis:
" 'Taking' jurisprudence does not divide a single parcel
into discrete segments and attempt to determine whether rights
in a particular segment have been entirely abrogated.
In deciding whether a particular governmental action
has effected a taking, this Court focuses rather both on the
character of the action and on the nature and extent of the
interference with rights in the parcel as a whole."
The Court gave no guidance on how one is to distinguish
a "discrete segment" from a "single parcel."
It was not clear, moreover, that the air rights at
issue in Penn Central were entirely eliminated by the operation
of New York City's Landmark Preservation Law, for, as the
Court noted, "it simply cannot be maintained, on this
record, that appellants have been prohibited from occupying
any portion of the airspace above the Terminal."
Id., at 136, 98 S.Ct., at 2665.
this case, enforcement of the Subsidence Act and its regulations
will require petitioners to leave approximately 27 million
tons of coal in place. There is no question that this coal
is an identifiable and separable property interest.
Unlike many property interests, the "bundle"
of rights in this coal is sparse. " 'For practical purposes, the right to coal consists
in the right to mine it.' "
Pennsylvania Coal, 260
 U.S., at 414, 43 S.Ct., at
159, quoting Commonwealth ex rel. Keater v. Clearview Coal
Co., 256 Pa., at 331, 100 A., at 820.
From the relevant perspective -- that of the property
owners -- this interest has been destroyed every bit as much
as if the government had proceeded to mine the coal for its
own use. The
regulation, then, does not merely inhibit one strand in the
bundle, cf. Andrus v. Allard, supra, but instead destroys
completely any interest in a segment of property.
In these circumstances, I think it unnecessary to consider
whether petitioners may operate individual mines or their
overall mining operations profitably, for they have been denied
all use of 27 million tons of coal.
I would hold that § 4 of the Subsidence Act works a
taking of these property interests.
also claim that the Subsidence Act effects a taking of their
Under Pennsylvania law, the support estate, the surface
estate, and the mineral estate are "three distinct estates
in land which can be held in fee simple separate and distinct
from each other...."
Captline v. County of Allegheny, 74 Pa.Commw. 85, 91,
459 A.2d 1298, 1301 (1983), cert. denied, 466 U.S. 904, 104
S.Ct. 1679, 80 L.Ed.2d 154 (1984). In refusing to consider the effect of the Subsidence
Act on this property interest alone, the Court dismisses this
feature of Pennsylvania property law as simply a "legalistic
distinctio[n] within a bundle of property rights."
Ante, at 1250.
"Its value," the Court informs us, "is
merely a part of the entire bundle of rights possessed by
the owner of either the coal or the surface." Ante, at
also 771 F.2d 707, 716 (1985) ("To focus upon the support
estate separately ... would serve little purpose").
This view of the support estate allows the Court to
conclude that its destruction is merely the destruction of
one "strand" in petitioners' bundle of property
rights, not significant enough in the overall bundle to work
to the Court's approach today, we have evaluated takings claims
by reference to the units of property defined
by state law.
In Ruckleshaus v. Monsanto, Co., for example, we determined
that certain "health, safety, and environmental data"
was "cognizable as a trade‑secret property right under
Missouri law," 467 U.S., at 1003, 104 S.Ct., at 2873,
and proceeded to evaluate the effects of governmental action
on this state-defined property right. [FN6]
Reliance on state law is necessitated by the fact that
" '[p]roperty interests ... are not created by the Constitution.
Rather, they are created and their dimensions are defined
by existing rules or understandings that stem from an independent
source such as state law.' "
Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
155, 161, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980), quoting
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,
2709, 33 L.Ed.2d 548 (1972).
In reality, the Court's decision today cannot reject
this necessary reliance on state law.
Rather, it simply rejects the support estate as the
relevant segment of property and evaluates the impact of the
Subsidence Act by reference to some broader, yet undefined,
segment of property presumably recognized by state law.
FN6. Indeed, we rejected the claim that the
Supremacy Clause allowed Congress to dictate that the effect
of its regulation "not vary depending on the property
law of the State in which the submitter [of trade-secret information]
is located.... If
Congress can 'pre-empt' state property law in the manner advocated
..., then the Taking Clause has lost all vitality."
Ruckleshaus v. Monsanto, Co., 467 U.S., at 1012, 104
S.Ct., at 2878.
see no reason for refusing to evaluate the impact of the Subsidence
Act on the support estate alone, for Pennsylvania has clearly
defined it as a separate estate in property.
The Court suggests that the practical significance
of this estate is limited, because its value "is merely
part of the bundle of rights possessed by the owner of either
the coal or the surface."
Ante, at 1250.
Though this may accurately describe the usual state
of affairs, I do not understand the Court to mean that one
holding the support estate alone would find it worthless,
for surely the owners of the mineral or surface estates
520 would be willing buyers of this
interest. [FN7] Nor
does the Court suggest that the owner of both the mineral
and support estates finds his separate interest in support
to be without value.
In these circumstances, where the estate defined by
state law is both severable and of value in its own right,
it is appropriate to consider the effect of regulation on
that particular property interest.
FN7. It is clear that under Pennsylvania law,
"one person may own the coal, another the surface, and
the third the right of support."
Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32
A.2d 227, 234-235 (1943).
held by owners of the mineral estate, the support estate "consists
of the right to remove the strata of coal and earth that undergird
the surface ...." 771 F.2d, at 715.
Purchase of this right, therefore, shifts the risk
of subsidence to the surface owner.
Section 6 of the Subsidence Act, by making the coal
mine operator strictly liable for any damage to surface structures
caused by subsidence, purports to place this risk on the holder
of the mineral estate regardless of whether the holder also
owns the support estate. Operation of this provision extinguishes
petitioners' interests in their support estates, making worthless
what they purchased as a separate right under Pennsylvania
the restriction on mining particular coal, this complete interference
with a property right extinguishes its value, and must be
accompanied by just compensation. [FN8]
FN8. It is therefore irrelevant that petitioners
have not presented evidence of "what percentage of the
purchased support estates, either in the aggregate or with
respect to any individual estate, has been affected by the
at 1250. There
is no doubt that the Act extinguishes support estates.
Because it fails to provide compensation for this taking,
the Act violates the dictates of the Fifth Amendment.
sum, I would hold that Pennsylvania's Bituminous Mine Subsidence
and Land Conservation Act effects a taking of petitioners'
property without providing just compensation.
Specifically, the Act works to extinguish petitioners'
in at least 27 million tons of coal
by requiring that coal to be left in the ground, and destroys
their purchased support estates by returning to them financial
liability for subsidence.
I respectfully dissent from the Court's decision to
the contrary. [FN9]
FN9. Because I would find § 6 of the Subsidence
Act unconstitutional under the Fifth Amendment, I would not
reach the Contracts Clause issue addressed by the Court, ante,