On petition for writ of certiorari to the United States Court of
Appeals for the Sixth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
Petitioners are landowners in Magoffin County, Kentucky. Seventy
years ago, their predecessors in ownership deeded away all rights
to the minerals in and under their land, retaining only the surface
rights; respondents are the present holders of the mineral rights,
and have strip mined much of the coal which underlies the land.
Petitioners brought this action under 42 U.S.C. 1983, seeking
injunctive relief. [
Footnote 1]
and damages for the destruction of the land surface through
respondents' strip-
Page 422 U.S.
1012 , 1013
mining operations. The Court of Appeals affirmed the dismissal
of the complaint, holding that there was no state action involved
and that petitioners had not been deprived of any federal
constitutional right.
498 F.2d
1183 (CA6 (1974).
This case is unfortunately no more than a mere footnote in a
continuing tragedy of environmental and human despoliation. The
rape of Appalachia for its precious coal has been a dark and dismal
chapter in our Nation's history, moving one observer to lament:
'Coal has always cursed the land in
which it lies. When men begin to wrest it from the earth it leaves
a legacy of four streams, hideous slag heaps and polluted air. It
peoples this transformed land with blind and crippled men and with
widows and orphans. It is an extractive industry which takes all
alway and restores nothing. It mars but never beautifies. It
corrupts but never purifies.'2
One of the hardest-hit areas has been the Cumberland Plateau in
eastern Kentucky. In the late 19th century, the hill country was
swept by a virtual wave of coal buyers seeking to acquire precious
mineral rights from the often naive and illiterate mountaineers.
The contest was hardly an equal one,3 and most coal buyers
Page 422 U.S.
1012 , 1014
escaped with a stack of 'broad-form' deeds which left nominal
title to the land surface in the landowner, but which conveyed to
the grantee the right to excavate and remove all minerals and, in
the course of such removal, to divert and pollute the water and to
dump mining refuse on the surface. Against the backdrop of
then-current mining technology, the prospects and hazards of such
actions must have seemed remote and insignificant. [
Footnote 4]
Page 422 U.S.
1012 , 1015
With the advance of technology, however, the stakes increased;
each successive innovation was visited upon the mountaineers with
the approval of the courts, which found these new and unforeseen
techniques to fall within the scope of the aged and yellowing
deeds. Judicial decisions gave virtually untrammeled powers to the
coal companies, so long as they acted without malice:
'With impunity [the companies] could
kill the fish in the treams, render the water in the farmer's well
unpotable and, by corrupting the stream from which his livestock
drank, compel him to get rid of his milk cows and other beasts.
They were authorized to pile mining refuse wherever they desired,
even if the chosen sites destroyed the homes of farmers and
bestowed no substantial advantage on the corporations. The
companies which held 'longform' mineral deeds were empowered to
withdraw subjacent supports, thereby causing the surface to subside
and fracture. They could build roads wherever they desired, even
through lawns and fertile vegetable gardens. They could sluice
poisonous water from the pits onto crop lands. With im-
Page 422 U.S.
1012 , 1016
punity they could hurl out from their washeries clouds of coal
grit which settled on fields of corn, alfalfa and clover and
rendered them worthless as fodder. Fumes from burning slate dumps
peeled paint from houses, but the companies were absolved from
damages.
'. . . The companies, which had
bought their coal rights at prices ranging from fifty cents to a
few dollars per acre, were, in effect, left free to do as they saw
fit, restrained only by the shallow consciences of their
officials.'5
The final blow in the expansion of the coal companies' rights
under broad-form deeds was struck when the Kentucky Court of
Appeals, in Buchanan v. Watson,
290
S.W.2d 40 (Ky.1956), held that the broad-form deed conveys the
right to strip mine and that the mining company, in the absence of
arbitrary, wanton, or malicious destruction, incurs no liability to
the surface owner for destruction of the surface during the strip
mining process. The Kentucky court has adhered to that holding
through an unbroken string of decisions culminating in Martin v.
Kentucky Oak Mining Co.,
429
S.W.2d 395 (Ky.1968), where the court reaffirmed Buchanan over
the vigorous dissent of two of its members. [
Footnote 6] While the Kentucky General Assembly
has finally provided legislative relief for the victims of strip
mining,7 that
Page 422 U.S.
1012 , 1017
relief is prospective only and will not bring about the repair
or reclamation of already ravaged lands.
In my view, the courts below took an unjustifiably narrow
approach to the state action issue presented by this lawsuit. It is
undisputed that Kentucky imposes extensive regulatory controls upon
strip miners, including a permit requirement and a requirement that
plans meeting minimum legal standards be submitted. [
Footnote 8] This regulatory involvement
alone might not be sufficient to warrant a finding of state action,
but it is coupled with a long and unbroken line of state court
decisions recognizing and enforcing strip mining rights under
broad-form deeds. It is well settled that state judicial decrees,
as well as legislative enactments, may constitute state action.
[
Footnote 9] See Shelley v.
Kraemer,
334 U.S. 1
(1948).
It is said that respondents are simply private parties engaged
in the exercise of private contractual rights conferred upon them
by petitioners' predecessors in interest; but the very claim raised
by petitioners is that those private contractual rights have been
arbitrarily and irrationally broadened by the state courts to a
degree never contemplated by the grantors. [
Footnote 10] The State's role
Page 422 U.S.
1012 , 1018
in this process can hardly be termed that of an innocent and
disinterested bystander-respondents, in exercising their claimed
rights under the broad- form deed, are clearly armed with the
weight and force of state judicial precedent, and the enforcement
power of the State lurks in the background as guarantor of those
rights.
In light of the above, petitioners' claim of state action is not
insubstantial on the facts of this case. Cf. Jackson v.
Metropolitan Edison Co.,
419 U.S.
345, 359 (1974) ( Douglas, J., dissenting); Adickes v. S. H.
Kress & Co.,
398
U.S. 144, 90 S. Ct. 1598 (1970); Burton v. Wilmington Parking
Authority,
365 U.S.
715 (1961).
Even if petitioners can establish the presence of state action,
they cannot prevail unless they can also establish a deprivation of
a federal constitutional right. The Court of Appeals properly
recognized that the interpretation and delineation of contractual
and property rights is ordinarily a matter of state law, pure and
simple, and that an adverse interpretation by a state court, even
if erroneous, does not constitute a deprivation of property without
due process of law. On the other hand, the Due Process Clause of
the Fourteenth Amendment is not wholly without content for purposes
of evaluating the arbitrariness of actions by the State; state
enactments and regulations may be tested under that clause against
a modest but identifiable standard of minimum rationality. See
Williamson v. Lee Optical Co.,
348 U.S. 483, 490-491
(1955); cf. Roe v. Wade,
410 U.S. 113 (1973).
Petitioners argue that the state courts have interpreted
broad-form deeds as conveying far more than those deeds could ever
have been intended to convey, and that the result has been a taking
of their property without due process. As Williamson makes clear,
the standard of review under the Due Process Clause is a very
minimal one, at least where no fundamental right or interest is
Page 422 U.S.
1012 , 1019
involved; the odds against the success of this type of due
process argument are high, but I am not prepared to say that it
could not succeed under any set of circumstances, no matter how
extreme or outrageous.
If a petitioner came to us claiming that he had entered into a
written contract for sale of his car, and that the state courts, in
an action upon the contract, had interpreted the term 'car' to
include not only his automobile but his house, dog, and vegetable
garden as well, I would hesitate to characterize as wholly
frivolous his claim that he had been deprived of property without
due process of law. The relevance of this example to the instant
case would depend, of course, on the amount of evidence which could
be adduced bearing upon the intent of petitioners' predecessors in
interest, including any evidence of the relationship between the
purchase price paid for the mineral rights alone and the full
market value of the land and minerals together. [
Footnote 11] Petitioners face serious
obstacles of proof in making a claim of this sort, but such
obstacles cannot justify throwing them out of court at the pleading
stage.
In my view, the issues presented by this petition are
substantial. I would grant certiorari and set the case for oral
argument.
Footnotes
Footnote 1 The prayer for
injunctive relief is now mooted, for all practical purposes, by the
recent revision of Ky.Rev.Stat.Ann. 350.060. Effective January 1,
1975, that statute prohibits strip mining without the written
consent of the owner of any freehold interest in the surface land.
This statutory change clearly would not moot petitioners' claim for
damages, based upon respondents' past conduct.
Footnote 2 H. Caudill, Night
Comes to the Cumberlands, at x (1963).
Footnote 3 Harry Caudill, a
Kentucky attorney with a long history of involvement in strip
mining litigation, has painted a vivid picture of these encounters:
'In the summer of 1885 gentlemen arrived in the county-seat towns
for the purpose of buying tracts of minerals, leaving the surface
of the land in the ownership of the mountaineers who resided on it.
The Eastern and Northern capitalists selected for this mission men
of great guile and charm. They were courteous, pleasant and
wonderful storytellers. Their goal was to buy the minerals on a
grand scale as cheaply as possible and on terms so favorable to the
purchasers as to grant them every desirable exploitive privilege,
while simultaneously leaving to the mountaineer an illusion of
ownership and the continuing responsibility for practically all the
taxes which might be thereafter levied against the land. ... 'When
the highland couple sat down at the kitchen table to sign the deed
their guest had brought to them they were at an astounding
disadvantage. On one side of the rude table sat an astute trader,
more often than not a graduate of a fine college and a man
experienced in the larger business world. He was thoroughly aware
of the implications of the transaction and of the immense wealth
which he was in the process of acquiring. Across the table on a
puncheon bench sat a man and woman out of a different age. Still
remarkably close to the frontier of a century before, neither of
them possessed more than the rudiments of an education. Hardly more
than 25 per cent of such mineral deeds were signed by grantors who
could so much as scrawl their names. Most of them 'touched the pen
and made their mark,' in the form of a spidery X, in the presence
of witnesses whom the agent had thoughtfully brought along. Usually
the agent was the notary public, but sometimes he brought one from
the county seat. Unable to read the instrument or able to read it
only with much uncertainty, the sellers relied upon the agent for
an explanation of its contents-contents which were to prove deadly
to the welfare of generations of the mountaineer's descendants.'
Id., at 72-74.
Footnote 4 See Martin v.
Kentucky Oak Mining Co.,
429
S.W.2d 395, 401 (Ky. 1968) (Hill, J., dissenting):
'Strip mining was meither heard of
nor dreamed of in 1905 in Knott County, the locality of the coal
land in question. There was no railroad in Knott County until long
thereafter. Neither was there a navigable stream in that county.
About the only coal mined in those days was from the outcroppings
in creek beds, where a small quantity was obtained by the use of a
newfound tool-the coal pick.'
'A similar description appears in H.
Caudill, supra, n. 2, at 305- 306:
'[W]hen the mountaineer's ancestor
(for the seller is, in most instances, long since dead) sold his
land he lived in an isolated backwater. Coal mining was a primitive
industry whose methods had changed little in a hundred years and
which still depended entirely on picks and shovels. To the
mountaineer 'mining' meant tunneling into a hillside and digging
the coal for removal through the opening thus made. That the right
to mine could authorize shaving off and destroying the surface of
the land in order to arrive at the underlying minerals was
undreamed of by buyers and sellers alike.'
Footnote 5 H. Caudill,
supra, n. 2, at 306-307.
Footnote 6 Judge Hill,
joined in his dissenting opinion by Judge Milliken, stated: 'I am
shocked and appalled that the court of last resort in the beautiful
state of Kentucky would ignore the logic and reasoning of the great
majority of other states and lend its approval and encouragement to
the diabolical devastation and destriction of a large part of the
surface of this fair state 'without compensation to the owners
thereof.' 429 S.W.2d at 402.
Footnote 7 See n. 1,
supra.
Footnote 8 Ky.Rev.Stat.Ann.
350.060(1)-(6) (1974).
Footnote 9 It is true that
this particular deed has not been the subject of any state court
proceeding, and that petitioners thus have not experienced the
direct application of an adverse ruling by the state courts.
Nevertheless, the Kentucky Court of Appeals has been unswerving in
its adherence to the Buchanan rule, and there is no reason to
suppose that petitioners' deed would receive a more favorable
interpretation.
Footnote 10 It is
interesting to note that Kentucky courts stand virtually alone in
the degree to which they have expended grantees' rights under
broad-form deeds. Contrary decisions from sister States are
collected in Martin v. Kentucky Oak Mining Co., supra, 429 S.W.2d,
at 402 (Hill, J., dissenting).
Footnote 11 The record in
the instant case apparently does not disclose any information about
Magoffin County land values in relation to the purchase price per
acre for the mineral rights under the deed in question, but such
information could undoubtedly be produced on remand.