in a pervasively regulated industry; and 3) the operators' lack of privacy interest because of the location of the areas to be inspected in "open fields." It is now well settled that the Fourth Amendment's warrant requirement applies to commercial buildings and that warrantless searches are generally unreasonable "unless some recognized exception to the warrant requirement applies." Marshall, supra, 98 S. Ct. at 1819-20. Thus, the Secretary asserts that the pervasively regulated industry and open fields exceptions apply here.
The Secretary argues that because surface mining operations occur in "wide-open areas," the operators have no significant privacy interests that necessitate the protection of a warrant requirement. This theory is, in essence, the "open fields" exception to the fourth amendment warrant requirement. Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 865, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974); See Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924). In the absence of a concrete factual setting it is impossible for the court to determine the applicability of this exception. See Diamond Shamrock Corp. v. Costle, 188 U.S.App.D.C. at -- - -- , 580 F.2d at 672 - 674 (1978). It would be inappropriate and improper for the court to consider in a generalized factual setting the issues of how "open" mining operations are and the privacy interests and expectations of the operators. Therefore, the court will not consider whether the open fields exception to the fourth amendment's warrant requirement validates the warrantless search provision of § 721.12 of the regulations.
The Secretary also contends that the exception from the search warrant requirement which has been recognized for pervasively regulated businesses and closely regulated industries applies here. Marshall, supra, 98 S. Ct. at 1820-21; United States v. Biswell, 406 U.S. 311, 315-17, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 74-77, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970). Under this exception, certain industries, like liquor and firearms, "have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Marshall, supra, 98 S. Ct. at 1821 (citation omitted). It appears that the coal industry can be distinguished from ordinary businesses by its "long tradition of close government supervision of which any person who chooses to enter such a business must already be aware" and thus, the exception to the warrant requirement applies because of the operators' implied consent. Marshall, supra, at 1821; See Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973).
Regulation of the coal industry has been more pervasive and specific than that mandated by OSHA which was at issue in Marshall. See Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45, 49-50 & n. 3 (S.D. Ohio 1973) (three-judge court). In Youghiogheny, the court upheld the warrantless search provisions of the Federal Coal Mine Health & Safety Act of 1969, 30 U.S.C. § 801 Et seq., and found the coal industry to be a "pervasively regulated industry." Id. at 50. The establishment of the Bureau of Mines began the federal regulation of coal mining in 1910 and federal inspectors were authorized to enter and inspect mines for health and safety hazards, which is the focus of the present Act, in 1941. See Coal Mine Safety Act of 1941, 55 Stat. 177 (formerly 30 U.S.C. § 451 Et seq. ). The fact that the present Act focuses on the environmental harm of surface mining and the surface effects of underground mining does not affect the finding that the industry is pervasively regulated. The primary concern of the Act, like the other regulatory statutes, is the public health and safety. In addition to being regulated under the Federal Coal Mine Health and Safety Act of 1969, the industry is also subject to provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 Et seq., the Clean Air Act, 42 U.S.C. § 1857 Et seq., and the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 Et seq. Furthermore, the industry also is regulated by many of the states.
Given the operators consent to certain restrictions by virtue of their operations in a pervasively regulated industry, the court also concludes that the warrantless search provisions of the Act and the regulations are reasonable as limited by the Secretary. As was noted above, no building will be entered without a search warrant, therefore, warrantless inspections of the permit area will only be conducted. The reasonableness of the warrantless inspections also is evidenced by the need, as perceived by Congress, for such searches. See 30 U.S.C. §§ 1252(e), 1267(a), (b)(3). Furthermore, the extent of the warrantless inspections is reasonably limited in time, place, and scope. See United States v. Biswell, supra, 406 U.S. at 315, 92 S. Ct. 1593, 32 L. Ed. 2d 87. As was indicated above, the place of the search is limited to the permit area, excluding buildings. The time of the searches, at least with respect to records and monitoring equipment, is limited by statute to "reasonable times." 30 U.S.C. § 1267(b)(3). The scope of the search also is limited to that necessary to ascertain whether the operations are in compliance with the Act and the regulations. See 30 U.S.C. §§ 1252(e), 1267(a). Finally, the need for, and therefore the reasonableness of, warrantless searches are supported by the necessity of the inspections in order to ensure that the public health and safety and the environment are protected.
Plaintiffs also question the constitutionality of sections 521(a)(2) and (3)
of the Act and 722.11 of the regulations which permit the Secretary to order cessation of coal mining operations without prior notice or a hearing. The plaintiffs contend that these provisions violate the Due Process Clause of the Fifth Amendment to the Constitution. Section 521(a)(2) of the Act requires that a federal inspector issue a cessation order when a violation of a permit condition or any other condition or practice: 1) "creates an imminent danger to the health or safety of the public;" or 2) "is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources." 30 U.S.C. § 1271(a)(2).
In providing for the issuance of cessation orders, sections 722.11(a) and (b) of the regulations adopt the language of the Act.
Although the Constitution generally requires notice and a hearing prior to a governmental deprivation of private property, there are exceptions to this requirement in extraordinary and emergency situations where a significant government interest justifies delaying the hearing until after the deprivation. Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). Summary administrative action prior to a hearing has been upheld by the Supreme Court in these situations in order to protect an important governmental or public interest.
E. g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677-80, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974) (seizure of rental yacht carrying marijuana); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S. Ct. 870, 94 L. Ed. 1088 (1950) (seizure of mislabeled vitamin product); Bowles v. Willingham, 321 U.S. 503, 519-21, 64 S. Ct. 641, 88 L. Ed. 892 (1944) (rent control orders); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 595-97, 51 S. Ct. 608, 75 L. Ed. 1289 (1931) (collection of federal revenue); Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S. Ct. 214, 65 L. Ed. 403 (1921) (seizure of enemy property); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 315-21, 29 S. Ct. 101, 53 L. Ed. 195 (1908) (seizure of contaminated food). Similarly, section 521(a)(2) of the Act provides for summary action by the Secretary through his representatives in emergency or extraordinary situations and its provisions comply with the requirements of the due process clause.
The standards of the due process clause to be applied to statutes which allow deprivations prior to a hearing were enunciated by the Supreme Court in Fuentes v. Shevin. The court must find:
First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.
Fuentes, supra, 407 U.S. at 91, 92 S. Ct. at 2000; See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (court should consider private interest, public interest, and risk of erroneous deprivation). The standards of § 521(a)(2) of the Act and the provisions of the regulations that apply and interpret the Act meet this test. First, the deprivation under a cessation order does "secure an important governmental or public interest." See 30 U.S.C. § 1201(c) (congressional finding of public and governmental interests). The Act seeks to protect the "health and safety of the public" and the "land, air, and water resources" of the United States. 30 U.S.C. § 1271(a)(2). Similar interests have been sufficient to warrant deprivations prior to a hearing in other instances. See, e.g., Ewing, supra, 339 U.S. at 599-600, 70 S. Ct. 870 (public health); North American Cold Storage Co., supra, 211 U.S. at 315-21, 29 S. Ct. 101 (public health); Sink v. Morton, 529 F.2d 601, 604 (4th Cir. 1975) (public safety); Morton v. Dow, 525 F.2d 1302, 1305-06 (10th Cir. 1975) (public safety).
Secondly, the use of cessation orders is limited to circumstances where there "is a special need for very prompt action." As was noted above, cessation orders can only be issued where there is imminent danger to the public health or safety or there is a reasonable risk of significant, imminent environmental harm.
The need for prompt action is further supported by the substantial governmental and public interests involved.
Finally, the standards of the Act and the regulations will maintain "strict control over (the government's) monopoly of legitimate force" and will reduce "the risk of an erroneous deprivation." Fuentes, supra, 407 U.S. at 91, 92 S. Ct. at 2000; Mathews, supra, 424 U.S. at 335, 96 S. Ct. 893 at 903. Under the Act, the government itself acts through its authorized representatives rather than through private parties. See Fuentes, supra, 407 U.S. at 93, 92 S. Ct. 1983. One of the plaintiffs' main contentions is that the standards under which a cessation order may be issued are too vague, subjective, and broad. Section 701(8) of the Act defines the threat of "imminent danger to the health and safety of the public" as the existence of a condition which could:
reasonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement.