State Attacks Mining Group's Suit Against Law

Attorneys Say Industrypremature In Fighting Property Protection Statute

November 10, 1991|By Kerry O'Rourke | Kerry O'Rourke,Staff writer

The mining industry's legal challenge to a law that protects residents from mining damage to their property is premature, the state Attorney General's Office has said.

"There is no controversy for this court to decide," said papers filed Wednesday in Anne Arundel Circuit Court by two assistant attorneys general representing top state officials.

A state delegate who worked for four years to get the law passed said the industry lawsuit has no merit.

"Their challenge is ludicrous," said Delegate Richard N. Dixon, D-Carroll, adding that the industry agreed in writing last April to support the measure.

But the Maryland Aggregates Industry Inc., which filed the lawsuit July 1 -- the day the law took effect -- said the law is unconstitutional because it goes beyond the police power of the state and denies the industry due process.

The association, which represents nine companies, including three that do business in Carroll, filed the lawsuit against the governor, the attorney general, the secretary of the Departmentof Natural Resources and the state of Maryland.

The association is asking the court to determine the validity of the law and suspend enforcement -- through an injunction -- until a decision is made.

The law presumes mining companies liable for water supply depletions within an area to be determined by DNR.

Companies are required to replace the water supply and compensate property owners monetarily fordamage unless they present "clear and convincing" evidence to the department that the water losses were not caused by mining.

Samuel W. Christine III, president of the Maryland Aggregates Association Inc., said he had not seen the motion Friday and could not comment.

In the suit, the association charges that the law unjustly singles outquarry companies in four counties for water losses, when other users, such as municipalities and other industries, extract water from thesame supplies.

The law applies only in Carroll, Frederick, Baltimore and Washington counties, where limestone is mined.

The attorneys general, in a motion to dismiss the lawsuit, said the law has not been implemented yet, which means the court cannot decide whether a mining company would be potentially liable for water loss or property damage.

A mining company must present a specific set of facts before the law can be challenged in court, said Assistant Attorney General Thomas A. Deming, who filed the case along with Assistant Attorney General Sharon B. Benzil.

Zones of influence around mining operations within which a company may be liable for water loss or damage have not been drawn yet, the motion states.

Dixon said he has been told the zones are being drawn. DNR officials could not be reached for comment Friday.

After the zones are established, DNR is responsible for determining whether any claims by landowners of water loss or property damage can be attributed to a nearby mining operation, the motion states.

The attorneys general also argue that the mining industry must exhaust administrative remedies before asking the court to review the issue.

The law provides for two administrative procedures, the motion says.

The first concerns the establishment of the zones of influence; the second allows a mining company to appeal a DNRdecision that the company was liable for water loss or property damage within the zone.

Dixon said the attorney general's office reviewed the bill for constitutionality before it was passed and found no legal objection.

The lawsuit originally was filed in Baltimore County but was refiled in Anne Arundel after the state asked that it be transferred.

Lawsuits against the governor and other top officialsroutinely are filed in Annapolis, Deming said.

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