Keystone Bituminous Coal Ass'n V. de Benedictis - Dissent

Dissent

In his dissenting opinion, Chief Justice Rehnquist argued that the facts of this case were analogous to the facts of PA Coal and that the Subsidence Act effected a taking of the petitioners' property without just compensation. Id. at 506-07.

To begin with, Rehnquist attacked the majority's view that Justice Holmes' opinion in PA Coal was "uncharacteristically ... advisory." Id. at 508. Rehnquist believed that no part of the PA Coal opinion was advisory in nature. Id. In fact, he found the majority's opinion "particularly disturbing" and believed that their disregard for PA Coal essentially ignored a case that "for 65 years been the foundation of 'regulatory takings' jurisprudence." Id. He pointed to the often quoted phrase from PA Coal that "'if regulation goes too far it will be recognized as a taking'" and listed five cases where it had been relied on in reaching an outcome. Id. (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. at 415). Rehnquist was very troubled by the fact that PA Coal had been cited and relied on as precedent in previous takings cases, but was now only considered to be advisory. Keystone Bituminous Coal Ass'n at 507-08.

Rehnquist also disagreed with the majority because he felt that the Kohler Act in PA Coal was intended to benefit privat parties and the general public. Id. at 509-10. He argued that similar to the purpose of the Subsidence Act, the Kohler Act was intended to prevent damage to buildings, infrastructure, pipelines, and avoid injuries and deaths. Id. at 509 (citing Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 496 (Pa. 1922)). So, he believed that both statutes had public purposes and were too similar to be distinguished. Keystone Bituminous Coal Ass'n at 511. In his opinion, both statutes were designed to protect not only private interests, but public interests as well.Id.

Pointing to precedent cases, Rehnquist didn’t believe that this case fell under the “nuisance exception” either. Id. at 512. He argued that the majority expanded the nuisance exception concept farther than it should have by putting this case in that category. Id. Instead, the nuisance exception should only encompass the "prevent a misuse or illegal use." Id. (citing Curtis v. Benson, 222 U.S. 78, 86 (1911)).

Finally, Rehnquist argued it was incorrect for the majority to overlook Pennsylvania's three defined property interests. He disagreed with the majority's view that the 27 million tons of coal that couldn't be mined as a result of the Subsidence Act wasn't a separate property interest. Keystone Bituminous Coal Ass'n at 515. Rehnquist pointed out that Pennsylvania divides property interests into three categories. These categories are "the support estate, the surface estate, and the mineral estate." Id. at 518. Each interest is deemed separate from the other and may have separate owners in fee simple. Id. (citing Captline v. County of Allegheny, 459 A.2d 1298, 1301 (Pa. Commw. Ct. 1983)). For example, under Pennsylvania law, one person could own the surface estate, a second person could own the support estate, and a third person could own the mineral estate. If one owner purchased a mineral estate to mine and couldn't after the Subsidence Act was passed, then it reduced the value of that estate. Instead of considering the three separate estates in land, Rehnquist believed that the majority only considered a "broader, yet undefined, segment of property." Id. at 519. Looking at this broader property interest led the majority to hold that there was no taking of the whole estate (the three separate estates combined). Rehnquist did not agree with the majority's analysis on this issue and would have found a taking.

For these reasons, Rehnquist believed that the Subsidence Act resulted in a taking of the coal companies' property and, therefore, the government should have paid them just compensation.