COALEX State Inquiry Report - 296
August, 1994

John Henriksen, Esquire
Department of Mines and Minerals
300 West Jefferson Street, Suite 300
Springfield, Illinois 62791-0137

TOPIC: LANDOWNER REFUSING RIGHT OF ENTRY FOR RECLAMATION 
(Includes COALEX Reports 141 & 172)

INQUIRY: A landowner will not allow an operator to enter and restore the permitted area. It is
believed that the landowner wants to use the fact that the land was left unrestored as an excuse to
sue the operator for damages. The operator anticipates having to sue the landowner in order to
gain entry and perform reclamation. Are there any cases that state that the landowner has an
obligation to allow the operator on the land to meet SMCRA requirements?

SEARCH RESULTS: Research was conducted in the COALEX Library and other materials in LEXIS.
Several cases with conflicting rulings were retrieved. Also identified were two existing COALEX
Reports which indicate that inability to comply may be taken into consideration as a mitigating
factor in computing civil penalties, though not the $ 750/day penalty, but NOVs and COs cannot be
vacated. Copies of the materials listed below are attached.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

STATE CASE
DIXSON v C & G EXCAVATING, INC., 364 So 2d 1160 (Ala 1978).
   C & G's lease with the Dixsons allowed C & G to strip mine and required reclamation after
mining. A termination clause in the lease allowed the Dixsons to terminate the lease in the event C
& G remained in breach of any covenant for 60 days following written notice of default.

   Mr. Dixson sought cancellation of the lease based on breach of the covenant for failure to
reclaim. Relief was denied due to failure to give written notice of the breach as the lease required.

   In the second suit, a jury trial, the Dixsons, alleging breach of the lease, sought damages and
cancellation of the lease. C & G countersued claiming Mr. Dixson threats of physical violence
prevented C & G's performance under the lease. The jury awarded the Dixsons $10,000 for breach
of covenant and the court held that the lease remained valid and in full force.

   The appellate court affirmed the trial court's ruling finding that the two verdicts were not
inconsistent. After examining the record, the court found that evidence supported C & G's claim
that Dixson had refused them permission to enter the land to continue mining or to reclaim and
stated: "a party to a contract who has caused a failure of performance by the other party cannot
take advantage of that failure."


STATE ADMINISTRATIVE CASE
N & L COAL CO. v COMMONWEALTH OF PA. DEPT. OF NATURAL RESOURCES, 1991 Pa Envirn
LEXIS 140, EHB Docket No. 88-353-F (1991).
   N & L appealed the portion of its civil penalty assessed for failure to comply. They argued that
their independent contractor prevented them from complying with the DER order by blocking
access to the mining property and that the landowner had withdrawn its permission for N & L to be
on the site. The Board found assessment of $ 750 per day for failure to comply proper under state
statutes; however, the Board noted:

"this does not leave N & L without a remedy. As DER alluded to in its brief, its contractor is jointly
and severally liable for violations due to the actions of the contractor.... N & L cannot avoid the civil
penalty, but may have a remedy in a court of equity."


INTERIOR ADMINISTRATIVE CASES
NEW RIVER COALS, LTD. v OSM, Docket No. NX 5-8-R (1985).
"The main problem that the Applicant has is that its lease has been declared void by the Chancery
Court of Anderson County and the Applicant can no longer gain access to the subject property in
order to do its reclamation work. The dispute is basically between the landowner and the Applicant.
There is no way the Respondent can solve the Applicant's problem of access. This is an unfortunate
situation because, unless the Applicant can gain access to the property, the Applicant will suffer a $
32,500 fine, but the subject property will not be reclaimed and the purpose of the Act will be
defeated.

"It would appear to the undersigned that the Applicant would have a legal right of entry for the
purpose of reclamation work on the subject property regardless of its cancellation of the lease
because the Act requires the reclamation work to be done, and this was well known to the lessor
when the lease was entered into. The undersigned has no authority to enforce this right of re-entry
for this limited purpose."

   The application for temporary relief was denied.


LOST MOUNTAIN MINING, INC. v OSM, Docket No. 92-35-R (1994).
   Among Lost Mountain's arguments for vacating the NOV or excusing remedial measures was the
fact that the landowner would not allow access to the site unless he receives monetary
compensation. The ALJ stated:

"The dispute concerning the access to the mine site between the Applicant and the landowner is to
be resolved between those two parties. If the Applicant cannot obtain access after a good faith
effort in the state forums available to it, the OSM should consider requesting the NOV be vacated."


PARAMONT COAL CORP. v OSM, Docket No. NX 89-47-R (1990).
   Language in this consent decree, Sec. IV Representations and Undertakings includes the
following statement:

"Should Paramont be denied the right-to-enter any site for the purpose of reclamation under this
Agreement, by the landowner, OSM agrees to assist Paramont, as necessary, in obtaining the right-of-entry for the purpose of reclamation. Paramont's obligation to complete reclamation will be
suspended until the right-of-entry is obtained. The time periods herein stated are subject to any
extension or modification of the abatement period which OSM may authorize in accord with
applicable law...."


VIRGINIA IRON, COAL & COKE CO. v OSM, Docket No. NX 7-46-P (1988).
   Similar language appears in this settlement agreement.


COALEX STATE INQUIRY REPORTS
COALEX STATE INQUIRY REPORT - 172, "Inability to comply" (1991).
   All of the materials retrieved as part of this Report indicate that no matter how legitimate the
cause, NOVs and COs cannot be vacated because of an operator's inability to comply. The reason
for the inability to comply may be taken into consideration as a mitigating factor in computing civil
penalties.

   Includes COALEX STATE INQUIRY REPORT - 141, "Reduction of the mandatory civil penalty".

   Both Reports are included without attachments.



ATTACHMENTS
A.   DIXSON V C & G EXCAVATING, INC., 364 So 2d 1160 (Ala 1978).
B.   N & L COAL CO. V COMMONWEALTH OF PA. DEPT. OF NATURAL RESOURCES, 1991 Pa
     Envirn LEXIS 140, EHB Docket No. 88-353-F (1991).
C.   NEW RIVER COALS, LTD. v OSM, Docket No. NX 5-8-R (1985).
D.   LOST MOUNTAIN MINING, INC. v OSM, Docket No. 92-35-R (1994).
E.   PARAMONT COAL CORP. v OSM, Docket No. NX 89-47-R (1990).
F.   VIRGINIA IRON, COAL & COKE CO. v OSM, Docket No. NX 7-46-P (1988).
G.   COALEX STATE INQUIRY REPORT - 172, "Inability to comply" (1991).
     [Includes COALEX STATE INQUIRY REPORT - 141, "Reduction of the mandatory civil
     penalty".]


Research conducted by: Joyce Zweben Scall