Facts: P suing to enjoin the enforcement of the Subsidence Act which gave the state of
PA the right to prevent or minimize subsidence mining when it could cause damage to
public buildings used by the public, dwellings for human habitation, and cemeteries. The
Act has been interpreted and enforced such that 50% of the coal beneath structures
protected under the statute to be kept in place as a means of providing surface support.
The State may revoke a mining permit if the removal of coal causes damage to a structure
protected 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.
Issue: Is the enactment of the Subsidence Act an unconstitutional taking of private
Holding: Affirmed. Where the state is acting to prevent harm to the public, the courts
will be very reluctant to invalidate the regulation as a taking.
– The court holds relevant:
1. the land use regulation that effects a taking if it “does not substantially advance
legitimate state interests
2. Or denies an owner economically viable use of his land
– The legislative purposes set forth in this statute were genuine, substantial, and
legitimate. This 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
– this Act does not deny the owner of economically viable use of his land. The Act does
not deny P of complete use of its property, the state is simply taking one “stick” in P’s
“bundle” The determination must be based on weighing the property taken over the use
of the entire property
**the more drastic the reduction in value of the owner’s property, the more likely a
taking is to be found***
The law is only going to find regulatory takings when there is a very serious deprivation
of the economically viable use of the land
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