An Uncommon Wealth:Â Taking and Regulating the Beautiful Land of Kentucky
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                                                  By Stephan Bates
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Editor’s note: Stephan Bates is a third year law student. His father is Grant Circuit Judge Steve Bates.
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I.                  Introduction
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Kentucky has long been recognized as a state with a rich abundance of natural resources, diverse environments, and a citizenry proud of both.[1] The first stories of Kentucky to reach the east coast settlements of America referenced the “rich meadows� and “broad and forested limestone uplands�.[2] Kentucky’s natural abundance made the acres within its borders very sought after land.[3] Settlers, including Daniel Boone, who many credit for the exploration and settlement of Kentucky[4], lost land to which they were rightfully entitled because of legal technicalities.[5]  It would seem that from the beginning of Kentucky’s existence there has been a conflict as to the use of the land, for while the Indians thought to preserve its natural abundance, the settlers sought to harness its natural wealth.[6] The conflict that existed in the early 18th century still exists in the Kentucky of the 21st century. But, now we often look to the law to preserve the natural resources, while increased populations continually seek new ways of procuring its natural wealth.
Kentucky had an estimated state population in July 2006 of over 4.2 million.[7] In 1920, two years before the Supreme Court’s ruling in Pennsylvania Coal Co. v. Mahon et al,[8] the population of Kentucky was estimated at 2.4 million.[9] In 1990, two years before the Supreme Court’s ruling in Lucas v. South Carolina Coastal Council,[10] the population of Kentucky had risen to 3.6 million.[11] These populations occupy an area of over 40, 000 square miles sharing numerous natural resources.[12]Â
Attempting to preserve the beauty and richness of its land while the population continues to grow, the Commonwealth enforces regulation through the Kentucky Department of Natural Resources and Environmental Protection.[13] One of the express duties of this department is to maximize environmental benefits while minimizing less desirable environmental conditions.[14] Such regulation has generally found support through the Commonwealth’s police power[15] and given broad interpretation by the Supreme Court of Kentucky.[16] Â
The United States Supreme Court has interpreted and defined the regulation of land use in the cases of Pennsylvania Coal v. Mahon[17] and Lucas v. South Carolina Coastal.[18]Â These cases represent the law of regulatory takings. Regulatory takings means a law or zoning regulation can be so excessive that it amounts to a taking of property.[19]Â Consequently, the latest opinion regarding the status of regulatory takings may shed light on the progression future environmental regulations.[20]Â
This note will analyze how Kentucky law has been affected over the years since Pennsylvania Coal[21] by comparing those Supreme Court rulings in the area of regulatory takings with similar decisions in Kentucky. First, this note will analyze the constitutional language of the Takings Clauses of both the Constitution of the United States and the Constitution of the Commonwealth of Kentucky, including relevant statutory language. Second, an analysis will explore the landmark land use and takings cases of the United States Supreme Court and the Kentucky Courts. Finally, the note will conclude with a prospective of where Kentucky environmental protection law may go in the future.
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II.               Constitutional Takings: Constitutional Law in Practice
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The ability of the government to take private land was a concern for the drafters of the 5th Amendment to the United States Constitution because at the time of its drafting England had no “public useâ€? requirement.[22] No Constitutional provision grants governmental bodies the right to take land for a “public useâ€?, but rather the Constitutional provisions in the United States do limit on how the government may take such action.[23] The phrase “public useâ€? created a debate as to its meaning.[24] The two competing and leading theories of its meaning included a “narrowâ€? and a “broadâ€? view. The “narrowâ€? view stated that property taken must afford the public the opportunity to use the land or the land must be put to a public use.[25] The “broadâ€? view stated that property must only go to the general welfare of the public.[26]  The U.S. Supreme Court adopted the “broadâ€? view, allowing for Congress or a state to determine a rational reason for the “public useâ€?.[27]Â
The Constitution of the United States and the Constitution of the Commonwealth of Kentucky require public agencies to pay compensation for land they have physically occupied for public use.[28]  When governments physically take private land for a public use, they exercise the power of eminent domain.[29] Furthermore, this exercise of the power of eminent domain by a governmental body for a public purpose constitutes a “taking�.[30]
Governments exercise eminent domain through a process known as condemnation.[31]Â In the early years of the country, the federal government sought condemnation proceedings primarily through state court systems to avoid any state rights issues.[32]Â In modern times, federal statutes have given federal agencies the authority to seek condemnation proceedings in either federal or state courts.[33]Â Kentucky has liberally construed its Constitutional provisions allowing compensation to the property owner not only in instances where land is properly condemned and appropriated, but also when land is inadvertently damaged or destroyed.[34]
While it is generally easy to identify a physical taking of property by a governmental entity, property owners use the remedy of inverse condemnation when a government has failed to bring formal condemnation proceedings.[35] Inverse condemnation proceedings can be used when a direct occupation of land exists[36], but have also been used for takings resulting from actions that indirectly affect a piece of property.[37] The use of inverse condemnation proceedings in Kentucky are generally favored[38] unless the government’s actions were protected by sovereign immunity for a proper governmental function.[39]
Short of condemnation proceedings, the federal and state governments have the ability to regulate property under the police power.[40]Â The police power is often used to regulate land for harm avoidance to the public, while the power of eminent domain is used to take land because it is useful to the public.[41]Â The area between governmental actions requiring compensation to the landowner and those actions, which are valid exercises of the police power, are the boundaries of future environmental regulation.[42]
The United States Supreme Court in Mugler v. Kansas[43]stated the following regarding the police power:
“It belongs to that department [Legislature] to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.â€?[44]Â
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Chief Justice Lambert recently described with stronger language the police powers of Kentucky in the case of Lexington Fayette County Food & Bev. Ass’n v. Lexington-Fayette Urban County Gov’t[45]:
“The fact that an exercise of police power impinges upon private interest does not restrict reasonable regulation. As noted earlier, among the police powers of the government, the power to promote and safeguard public health ranks at the top. If the right of an individual runs afoul of the exercise of this power, the right of the individual must yield. There is perhaps no broader field of police power than that of public health. It is thus apparent that, insofar as public health is concerned, private property may become of public interest and the constitutional limitations upon the exercise of that power of regulation come down to a question of ‘reasonability’. The real issue is whether the public health regulation is reasonable. In this case, we must conclude that it is. Both federal and state courts have determined numerous times that where public interest is involved it is to be preferred over property interests even to the extent of destruction if necessary.â€?[46]
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The U.S. Supreme Court had quietly proposed, with case law leading up to and including Mugler, that police power could be used unchecked by the Takings Clause of the Fifth Amendment.[47]Â The cases to follow will demonstrate what both the federal and state courts could have done to address the relationship between the police power and Takings Clause.
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III.            Takings Law Through the Years: A Brief Exploration
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           A. The Pennsylvania Coal Approach
           The “Great Dissenter�, Oliver Wendell Holmes Jr.,[48] delivered the opinion of the court in Pennsylvania Coal Co. v. Mahon putting a limit to the police power in the regulation of land. The case involved a coal company property owner, who sold the surface estate to Mahon while reserving the mineral rights to remove the subsurface coal.[49] Subsequent to the land transfer, the state of Pennsylvania enacted a statute prohibiting the removal of any coal that would cause the subsidence of a dwelling.[50] Holmes reasoned that by making it commercially impracticable for the coal company to remove the coal, the statute had gone “too far�.[51] The court did not specify a test to be used, but made a point to emphasize the fact specific nature of the takings inquiry.[52] Additionally, Holmes emphasized the boundaries of the doctrine by stating that all property is held under an implied limitation of the police power and those limits may diminish the value of the land without affecting a taking of the property.[53]
           The decision of the U.S. Supreme Court in Pennsylvania Coal introduced the concept of a regulatory taking under what has become known as the “diminution of value� test.[54] Using this precedent, the Kentucky Court of Appeals decided a similar issue using the Pennsylvania Coal precedent in Department for Natural Resources and Environmental Protection v. No. 8 Limited of Virginia.[55] The case involved the application of a statute to be administered by the Environmental Protection Cabinet regarding strip mining[56]. The statute, KY. REV. STAT. § 350.060, stated that all strip-mining activities had to be permitted by the Kentucky Department of Environmental Protection.[57] The application for a permit required the applicant to obtain letters of consent from those landowners whose land would be subject to strip mining where the mining company owned the mineral rights, but not the surface estate.[58] The court paid particular attention to the requirement of obtaining consent from the surface owners as it related to the conservation measures that were purported purpose of the legislation.[59] Interpreting the statute, the court acknowledged the language from Pennsylvania Coal and sought to balance the Constitutional Takings Clauses with those valid exercises of the state police power.[60]
           The “gut issue�[61] was whether the legislation could be justified as a legitimate exercise of the police power or whether it was a taking.[62] The statute as applied could not stand as an environmental conservation measure because[63] it was shown it lacked a “rational relationship� between the environmental objectives sought by the statute and the means by which the statute regulated land use.[64] The problem with the statute was the manner in which it required the procurement of consent by surface owners thereby putting the surface owners in a position to enforce the statute by either granting or denying the request.[65] The court rejected the statute as a conservation method, but suggested in dictum that the police power was still valid.[66] In other words, the purpose of environmental conservation as a valid exercise of police power was not an issue for the court; rather the method by which the statute attempted to achieve environmental conservation was faulty.[67]
           The No. 8 Limited of Virginia case is useful for our inquiry into Kentucky Takings cases, since it shows that the law did not attempt to dissuade the use of police power in environmental regulation as long as the methods to achieve the environmental performance were correct.
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B. The Application of Penn Central
           In 1978, the U.S. Supreme Court decided another case dealing with land use and state regulations of private property in Penn Central Transportation Co. v. City of New York.[68] While the decision did not involve an environmental regulation, the decision and factors the court chose to weigh in deciding the takings issue are germane to environmental land use law.[69]
           Penn Central involved a designation by New York City of Grand Central Terminal as an historic landmark under its historic landmarks preservation law.[70] Penn Central Transportation, the owner’s of Grand Central Terminal, had proposed a plan to construct an office building on top of the terminal.[71] The designation of Grand Central Terminal as an historic landmark stopped Penn Central from constructing an office building atop of the existing structure.[72]  In turn, this led Penn Central to seek compensation for a regulatory taking.[73] The U.S. Supreme Court determined that there had not been a taking of Penn Central’s property and in so doing articulated three factors that should be used in making such a determination.[74] The factors included the impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the governmental action.[75] Applying these three factors, the court stated the economic impact had been minimal since the regulation had allowed property owner’s to get “transfer development rights� if the designation prevented them from developing the property to the fullest extent.[76] Furthermore, the court concluded that the “investment-backed expectations� of Penn Central were not frustrated because it was shown that Grand Central Terminal was earning a reasonable return.[77] Finally, the court reasoned that the character of the governmental action had been within the police power of the state because it went to the general welfare of the community and did not significantly diminish the value of Grand Central Terminal.[78]
           There has been some debate as to the usefulness and applicability of the Penn Central case to other harder takings cases,[79] but in 1984 the Kentucky Supreme Court adopted the test of Penn Central in the case of Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co.[80]Â
           Stearns Coal & Lumber involved the Wild Rivers Act of 1972[81], which was an environmental conservation law meant to protect and enhance the stream areas of Kentucky.[82] The law was to be administered by the Kentucky Environmental and Public Protection Cabinet.[83]Â
           The Wild Rivers Act provided that the Department of Natural Resources would develop boundary maps, but by 1973 the Department had only developed imprecise boundary maps.[84] The statutory requirements involving the boundary maps and the designation of boundaries was one of the issues involved in the Commonwealth, Dept. of Natural Resources & Environmental Protection v. Stephens,[85] which preceded the Stearns Coal & Lumber decision and in many ways allowed the Stearns landowner to make the takings claim.[86] As part of the Wild Rivers Act, the Department circulated informational material that described the prohibited activities, placed signs welcoming the public to the protected areas, and conducted inspections.[87] Following the decision in Stephens, the Department made several amendments to the Wild Rivers Act that became effective on June 19, 1976.[88] The Commonwealth formally published the maps designating the boundaries of the Wild Rivers Act on July 22, 1976.[89]
           Prior to June 19, 1976, the Department received a letter from the Chairman of Stearns Coal & Lumber Co., which stated that the company was to begin a large-scale land development that would entail every activity prohibited in the Wild Rivers Area.[90] The Department acted to prohibit this land development, but Stearns took commiserate action and was granted a temporary injunction against the Commonwealth [specifically the Department] which enjoined them from interfering with any activities of Stearns.[91]
           In 1981, the trial judge found a taking of Stearns property had occurred on June 25, 1975.[92] However on appeal to the Kentucky Supreme Court this decision was reversed.[93] The court reasoned that there could not have been a taking of Stearns property until the boundary maps were published on July 22, 1976, because the Stephens decision held that until the streams were designated, the Commonwealth could not enforce the prohibitions of the Wild Rivers Act.[94]
           The Kentucky Supreme Court, after citing the holding in Penn Central, stated that had the Wild Rivers Act been fully implemented at the time that Stearns made his claim, it might have been a taking.[95] The court reasoned had the Act been implemented and enforced on Stearns property, the company might have experienced an impairment of its financial interests.[96] Furthermore, the court stated that the economic impact had been minimal and the “investment-backed expectations� were not frustrated since Stearns had continued timber operations, had executed oil and public-use leases, and had sold a significant portion of the property to the federal government since making the takings claim.[97] Additionally, Justice Wintersheimer stated in the opinion that the Wild Rivers Act was within the police power of the Commonwealth.[98]
           The Stearns decision left many questions as to what would constitute a taking in environmental regulation.  The holding would suggest that Stearns had a valid takings claim but for the timing of the implementation and the judicial intervention on their behalf.[99]
C. The Lucas Decision
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           The U.S. Supreme Court ventured into the Takings arena again in 1992 when they heard the case of Lucas v. South Carolina Coastal Council.[100] Some have viewed the impact of Lucas as providing landowners and governments with a basis for determining what a state may or may not do at a given time to property.[101] While the historical precedent is still being discovered on Lucas, some scholars contend that the impact of the decision may well clarify the foundation for finding a compensable taking and promote new government regulation.[102]
           In 1986 David Lucas paid $975,000 for two coastal lots on which he planned to build homes.[103] Two years later, South Carolina enacted the Beachfront Management Act that in effect prohibited Lucas from building any permanent habitable structures on the lots.[104] A state court determined that the Act rendered Lucas’ property valueless.[105] Thus, the issue to be resolved by the U.S. Supreme Court was whether the economic effect of the Act constituted a compensable taking.[106]Â
           The distinction making the Lucas decision different from Penn Central and Pennsylvania Coal was what Justice Scalia termed “the logically antecedent inquiry�.[107] This threshold question would simply ask whether the owner’s proscribed use of the land was within the “bundle of rights� obtained when the land was purchased.[108]
           The court recognized two instances in which a taking will have been deemed to occur without a case specific inquiry: physical invasions and regulations that deny all economically valuable use.[109] The Lucas decision carved out a new exception to the denial of all economically valuable use based on the state’s law of property and nuisance, which may or can be in place at the time property is purchased.[110] The idea was that a landowner owns his property as he finds it and expects the government to regulate the land based on the nature of the land itself in accord with the legitimate use of the police power.[111]
           In finding and explaining this exception, the Court remanded the case to the South Carolina Supreme Court, but did add that the nuisance and property law of the state would likely not have provided a justification for the regulation since nuisance law usually does not prohibit the “essential useâ€? of the land.[112]Â
Scholarly debate has centered on the effect Lucas will have on environmental regulation, since it establishes guidelines for governmental regulation upon state common law nuisance principles.[113]
While Kentucky has not generated an entirely analogous case to Lucas, there is a case whose opinion cites Lucas and also harkens back to No. 8 Limited of Virginia and Stearns Lumber & Coal. In 1993, the Kentucky Supreme Court decided the case of Ward v. Harding,[114] in which the court was asked to interpret the rights of the parties to a “broad form deed�.[115] The Ward v. Harding case is also illustrative of the Lucas holding relating to state common law property rights.
The Hardings, owners of the mineral estate, had attempted to enter the surface estate owned by the Wards and conduct strip mining to remove the coal from the land.[116] In so doing, the Wards contended that the Hardings’ rights under the deed did not include the right to strip mining.[117] The Constitution of Kentucky § 19(2) had redefined the rights of the parties to a deed which separated the mineral estate and the surface estate.[118] Furthermore, the Constitution had stated that in such a conveyance the methods of extraction must be commonly known to be in use in Kentucky or expressly stated otherwise.[119] The Hardings had argued that the Constitution of Kentucky § 19(2) violated Article 1, Section 10 of the Constitution of the United States, the Contract Clause[120], and also the 5th Amendment to the Constitution of the United States[121], in so much as the Kentucky Constitutional Amendment acts as a Taking of their estate.[122]
The court first decided the rights of the parties under the “broad form deedâ€?. In so doing the court overturned precedent and held that the rights under a broad form deed of the mineral estate owner did not receive the right to strip-mine the property.[123] The reasoning of the court involved two cases from the Kentucky Supreme Court: Buchanan v. Watson[124] and Akers v. Baldwin[125].          Â
The Buchanan decision involved two issues: whether a mineral owner could use strip mining to remove coal and in so doing destroy the surface estate and whether that mineral owner was liable for damages to the surface estate for having done so.[126] The court in Buchanan had reasoned that the right to strip mine was incidental to the right to remove the coal by any feasible means.[127]  Furthermore, the Buchanan court postulated what they termed “two fundamental rules for deed construction�, which included that a deed will be interpreted strictly by its language and that ambiguity in the deed language will be construed most strongly against the grantor both upon the grant of the property and the rights and privileges flowing from it.[128]
The Akers v. Baldwin decision once again delved into the rights of a mineral estate owner to the surface estate owner under a broad form deed. The Akers case was a consolidation of two cases. The first case involved the Secretary of the Natural Resources and Environmental Protection Cabinet, Baldwin, and whether in her capacity as secretary she could issue permits to strip mine land if the deed did not specify the means of extracting the coal.[129]  The second case involved the applicability of the Ky. Rev. Stat. § 381.930 as it pertained to the rights of the mineral and surface owners.[130] Ky. Rev. Stat. § 381.930 codified a rule of construction for mineral deeds relating to coal extraction such that it would relate back to the intention of the parties at the time of the conveyance.[131] The court in Akers found the statute to be unconstitutional because Ky. Rev. Stat. § 381.930 sought to determine the intentions of the parties to a deed, which the court felt was a judicial power.[132]
In resolving the permit issue, the Akers court affirmed the right of the mineral estate owner to extract coal by whatever feasible means necessary.[133]Â The court did reject the portion of Buchanan that had not allowed for the mineral estate owner to be liable for damages.[134]Â
After a careful examination of the opinions in Buchanan and Akers, the Ward court overturned precedent and held that the rights of the mineral estate owner in the conveyance under a broad form deed did not receive the right to strip mine the property.[135]
The court quickly dismissed the Appellee’s Contracts Clause[136] claim and explained that the intention of the parties to the contract, in the original conveyance, could not have included any substantial disturbance of the surface.[137] The court resolved the Contracts Clause issue asserting that the appellee’s right to strip mine had not been created by the deed rather, by reliance on a decision by the Kentucky Supreme Court fifty years after the conveyance.[138]
When the court arrived at the final issue concerning the Takings of the Appellee’s mineral estate, they found difficulty in its applicability to the case.[139] The court reasoned that since the Constitutional Amendment did not involve a land-use restriction, but was rather a rule of contract construction, there was no takings claim.[140] The court did cite to Lucas[141] and reviewed the holding of that case before explaining why it was inapplicable in the Ward litigation.Â
While the first point the court made was to distinguish the Constitutional Amendment from a land-use regulation, it further explained that the Lucas holding when applied to the case at bar would allow the Hardings to claim a common law property right to the extraction of coal in the mineral estate, since the court’s prior decisions regarding such a property conveyance would have upheld such a right.[142] In further explaining the inapplicability, the court stated property rights acquired by a deed were a matter of state law and that the Constitutional Amendment had not affected the Appellee’s property rights under the deed.[143]Â
In dismissing the appellee’s takings claim, the majority opinion reasoned that the right had been extinguished with the overturning of precedent which interpreted past broad form deeds to give mineral estate owners a right to strip mine. The dissenting opinion of Ward took exception to this reasoning and cited the decision in Pennsylvania Coal v. Mahon.[144] Justice Leibson, writing the dissent, stated that there exists a symbiotic relationship between the Contracts Clause and the Takings Clause.[145] In his explanation, the relationship often masks a Contracts Clause issue within Takings cases, because the contractual implications are incidental to the regulatory law analysis.[146] Furthermore, the dissenting opinion cited the following passage to Pennsylvania Coal v. Mahon:Â
“As said in a Pennsylvania case, “For practical purposes, the right to coal consists in the right to mine it.” Commonwealth v. Clearview Coal Co., 256 Pa. St. 328, 331. What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.â€?[147]
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           Justice Leibson explained that if the Hardings were unable to extract the coal from their mineral estate by no other commercially practicable means, besides strip mining, then there had been a taking.[148] In conclusion, the dissent tied in the Lucas decision by showing the majority avoided the takings issue by stating no common law right existed and that the broad form deed contained no such right, even though the court’s earlier precedent had held otherwise.[149]
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IV.             The Future of Regulatory Takings in Kentucky
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Generally, the Kentucky Supreme Court has cited and applied those U.S. Supreme Court Takings decisions where applicable. The No. 8 Limited of Virginia case demonstrated Kentucky’s willingness to use environmental regulations that did not go “too far� and were within the police power of the state. The Stearns Lumber & Coal case further defined the boundaries, under the police power of the state, by looking at the economic impact of the regulation on the party claiming a regulatory taking. Lastly, the Kentucky Supreme Court has cited the Lucas case when deciding purported takings claims and specifically the common law property rights of the party at the time of the conveyance. The last section of this note will explore where Kentucky environmental regulation may go in the future within the Lucas framework of Kentucky nuisance and property law.[150]
A. Kentucky Nuisance Law
The definition of nuisance is varied and often inadvertently confused with anything that is harmful, annoying, or offensive.[151] Kentucky has defined nuisance as ““that class of wrongs which arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property and produces such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.”[152] Additionally, even if the activity creating the nuisance is lawful, Kentucky law generally holds that unreasonable uses of the property, which cause annoyance, inconvenience, or discomfort, will constitute a nuisance.[153]
Furthermore, the Kentucky Supreme Court has made a distinction between permanent and temporary nuisances in the case of Lynn Mining Co. v. Kelly.[154]Â Lynn Mining Co. v. Kelly involved the expulsion of excessive amounts of coal dust in the town of Combs, KY.[155]Â The court defined a permanent nuisance as those involving a permanent condition or structure that is properly constructed and properly operated.[156]Â The temporary nuisance was defined as one in which the condition or structure is negligently constructed and negligently operated.[157]Â The distinction is most important when the statute of limitations for such actions is involved.[158]
Within the rubric of permanent and temporary nuisance, Kentucky also recognizes public and private nuisances.[159] A public nuisance is an unreasonable interference with a right common to the general public.[160] A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.[161]
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B.     A Brief Case Study of Nuisance and Environmental Regulation
These differing aspects of nuisance were illustrated in the Kentucky case of Rockwell Int’l Corp. v. Wilhite.[162] Rockwell Int’l Corp involved a claim for a permanent nuisance by landowners in Logan County, KY. The complaint stated that Rockwell International Corporation had deposited on the landowner’s property polychlorinated biphenyls (“PCBsâ€?).[163] The court concluded that the minute quantities of PCBs, which were discharged onto the adjacent property, did not amount to a nuisance since it had not affected the landowner’s use and enjoyment of the land.[164] The opinion did leave open the possibility that if no scientific evidence of a hazardous material or substance were present on the property, unpleasant odors or sounds that were offensive to humans could still create an action for nuisance.[165]
This litigation is useful for the analysis of this note because separate and apart from the landowners’ claims, the Natural Resources and Environmental Protection Cabinet (“the Cabinet�) brought action against Rockwell International Corp. for illegal release of PCBs into the environment.[166]
The Cabinet inspected the Rockwell facility in 1985; ten years after Rockwell apparently stopped using a PCB-based hydraulic fluid and converted to a non-PCB based fluid.[167]Â Subsequent to the inspection, the Cabinet conducted additional testing and investigation and found PCBs in sediments, creeks, and rivers surrounding the Rockwell facility.[168]
The Cabinet issued a warning concerning fish in two rivers that were contaminated by PCBs from the Rockwell facility.[169]Â Rockwell contended that the exposure assessments conducted by The Cabinet were unrealistic and that those assessments conducted by Rockwell should have been accepted for the purpose of adopting remedial measures.[170]Â In 1986, the Cabinet filed a complaint seeking to enforce the clean up of the PCBs by Rockwell.[171]Â
At trial, Rockwell was found to have released a reportable quantity of PCBs under Ky. Rev. Stat. § 224.01-400(4) and 40 C.F.R. Part 302 and to have violated Ky. Rev. Stat. § 224.01-400(18), which states that anyone who releases a contaminant to the environment has the choice to either demonstrate that no remedial action is necessary, manage the release to minimize environmental harm, or restore the environment through removal of the contaminant.[172]Â
Comparing these two cases, within the framework of the Lucas decision, we have a unique vantage of comparing Kentucky nuisance law with a Kentucky environmental regulation. In Rockwell Int’l Corp. v. Wilhite the Kentucky Court of Appeals spoke of the quantity of PCBs that might be considered a nuisance under state law.[173] Specifically the Rockwell Int’l Corp. v. Wilhite court referred to the minute quantities of PCBs that did not diminish the plaintiff’s use and enjoyment of the land.[174]
 The Court of Appeals in Rockwell Int’l Corp. reviewed the applicability of Ky. Rev. Stat. § 224.01-400(18) and specifically the reportable quantities of PCBs found by The Cabinet.[175] The Cabinets enforcement of the statute was necessary to minimize the environmental impact, which included not only the plaintiff’s property from the Rockwell Int’l Corp. v. Wilhite litigation, but presumably anyone who might use the lands, creeks, and rivers surrounding the Rockwell facility.[176]
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C.    A Hypothetical Taking
The enforcement of the environmental regulation in Rockwell Int’l Corp. v. Commonwealth was a more stringent standard than that standard employed for nuisance in Rockwell Int’l Corp. v. Wilhite.[177] If one is to attempt to predict the future of environmental regulation, one must now look at the facts of the Rockwell cases and ask: What if the environmental regulation had been enacted after Rockwell purchased the land and began operations? What if Rockwell claimed that the regulation went “too farâ€? and that the site assessments, clean-ups, and remedial measures proposed by The Cabinet had taken all economic value from the Rockwell land?Â
The Lucas decision would tell us to look back to that “bundle of rightsâ€? Rockwell received when they purchased the land.[178] The exception of Lucas would apply only if Kentucky nuisance law did not prohibit Rockwell from releasing “minute quantitiesâ€? of PCBs on its own land and that of other adjacent landowners.[179] The exception was found in Rockwell Int’l Corp. v. Wilhite, but only to the use and enjoyment of the plaintiffs for a private permanent nuisance.[180] In my opinion an action in public nuisance would have shown an unreasonable interference with a right common to the general public, therefore not creating the Lucas exception.[181]
Applying the Ward holding to this hypothetical, a look to Kentucky nuisance law is necessary, such as the Kentucky Court of Appeals did in Rockwell Int’l Corp. v. Wilhite. Furthermore, the Kentucky Supreme Court’s deference to regulation using the police power for public health would imply that enforcement of the regulation in the hypothetical above would be likely. Considering the Chief Justice’s strong opinion in Lexington Fayette County Food & Bev. Ass’n v. Lexington-Fayette Urban County Gov’t, the future of environmental regulations in Kentucky looks very promising. Future landowners and business owners looking to the Commonwealth for new business or expansion, need only review the Kentucky Supreme Courts’ deference to the police power of the state and local governments. The Kentucky Supreme Court recognizes the land will be regulated, sometimes to the point when all economic value is destroyed.
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V.                Conclusion
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The conundrum for an evolving and growing democratic society is often found in resolving the difference in the interests of the individual versus the interests of the general population. The elected government often is assigned the duty of resolving this conflict and uses the police power of the government to enforce regulations. The conflict is inevitable, as is the inevitability that the conflict will extend to property. When the use of property by a landowner either interferes with his neighbor or the general public, the law of nuisance and the regulation of land use becomes needed.
How far the government may go to regulate land-use has been addressed throughout the legal history of the United States and Kentucky. Kentucky citizens have a great affinity for the beauty and heritage of the Commonwealth that goes back to the first settlers of the state. Population growth in Kentucky has meant more contact between the citizens and in turn, more conflict concerning how those citizens will use their land.Â
Environmental legislation cannot be a fixed set of rules, but must evolve with the times. Certainly, the Kentucky seen through the eyes of Daniel Boone was vastly different than the Kentucky seen through the eyes of the modern-day inhabitant. The Kentucky General Assembly has enacted rules and regulations to preserve the beauty, but those rules cannot and should not be static. The Lucas decision was viewed as an attempt to make the promulgation of land-use regulation static, but Kentucky decisions in the area show otherwise. A review of Kentucky law in the land-use and environmental conservation arenas demonstrates that the Commonwealth remains a state proud of its land and resources but willing to place the public use and enjoyment of land above that of the individual.
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[1]
Ky. Dept. for Envt’l Prot. Website “Welcome Message�, available at http://www.dep.ky.gov/ (last modified 3/6/07). “Kentucky is a land with diverse environments and abundant resources. These features are some of the most prized treasures of Kentucky residents. Kentucky is well known for its varied geology, including expansive cave and karst systems. It has valuable coalfields, critical wetlands and lush forests.�[2]
Willard Rouse Jillson, Sc.D., The Kentucky Land Grants Page 1-3 (The Standard Printing Company 1925).[4]
Col. George M. Chinn, Director, Kentucky Historical Society, available at http://www.americanwest.com/pages/boone.htm, Courtesy The Harrodsburg Historical Society (last modified 3/6/2007) “More than any other man, Daniel Boone was responsible for the exploration and settlement of Kentucky.�[5]
Jillson, Supra note 2, at 3.[6]
George Morgan Chinn, Kentucky Settlement and Statehood 1750-1800 Page 10 (The Kentucky Historical Society 1975).[7]
Kentucky State Data Center Website, available at http://ksdc.louisville.edu/ (last modified 3/6/07)[8]
Pennsylvania Coal Co. v. Mahon et al, 260 U.S. 393 (1922). [hereinafter Pennsylvania Coal][9]
Kentucky State Data Center Website, available at http://ksdc.louisville.edu/ (last modified 3/6/07)[10]
Lucas v. South Carolina Coastal, 505 U.S. 1003 (1992). [hereinafter Lucas][11]
Chinn, Supra Note 6, at 10.[12]
Kentucky Atlas and Gazetteer Website, available at http://www.uky.edu/KentuckyAtlas/kentucky.html (last modified 3/6/07).[13]
Ky. Dept. for Envt’l Prot. Website, Mission Statement, available at http://www.dep.ky.gov/ (last modified 3/6/07).[14]
Ky. Rev. Stat. Ann. § 224.10-100 (Banks-Baldwin 2006)[15]
5-34 Zoning Law and Practice § 34-3 “Local environmental control legislation and regulation must necessarily find support from the police power of the state, as is true in any area of land-use control.�
(Lexis 2006)
[16]
Whitaker v. Green River Coal Co., 276 Ky. 43, 50 (Ky. 1938). “The ever-increasing complexity of modern business and social conditions demands that the courts exercise a liberal rather than a restrictive attitude toward legislative acts enacted pursuant to the police power inherent in the exercise of governmental functions and that such act should not be set aside lightly, but only when it is plainly violative of some constitutional provision.�[17]
Pennsylvania Coal, 260 U.S. at 393.[18]
Lucas, 505 U.S. at 1003[19]
Pennsylvania Coal, 260 U.S. at 393.[20]
Lucas, 505 U.S. at 1003.[21]
Pennsylvania Coal, 260 U.S. at 393.[22]
See generally 13-79F Powell on Real Property § 79F.03 (Lexis 2006).
[23]
 See 1-1 Nichols on Eminent Domain § 1.3 (Lexis 2006) (“The power of eminent domain does not require recognition by constitutional provision, but exists in absolute and unlimited form.53 Because of the concept of the power as an inherent attribute of sovereignty, positive assertion of limitations upon the power is required. This requirement is met by the provisions found in most of the state constitutions relating to the taking of property by eminent domain. Such constitutional provisions neither directly nor impliedly grant the power of eminent domain, but are simply limitations upon a power already in existence which would otherwise be unlimited�).[28]
The Fifth Amendment to the United States Constitution states in relevant part: “nor shall private property be taken for public use without just compensationâ€?. U.S. CONST. Amend V. KY. CONST. § 13 (2006) states in relevant part: “nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.â€? KY. CONST. § 242
(2006) also provides, “
Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by themâ€?.Â
[29]
Black’s Law Dictionary 616 (4th ed. 1968). Eminent Domain: The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character. The process of exercising the power of eminent domain is commonly referred to as “condemnation� or “expropriation�.[30]
See generally 2A-6 Nichols on Eminent Domain § 6.01 (Lexis 2006) (“A Taking Generally Occurs When the Government Takes Private Property for a Public Purpose�).[31]
See generally 1-1 Nichols on Eminent Domain § 1.3 (Lexis 2006).[32]
See generally 1-1 Nichols on Eminent Domain § 1.24 (Lexis 2006).[33]
1-1 Nichols on Eminent Domain § 1.24 (Lexis 2006) (“Under modern statutes, at least as far as delegatees of the Federal power of eminent domain are concerned, the proceedings to condemn may be authorized to be brought either in the State courts or the Federal courts, the choice being left with the grantee of the power�).[34]
Commonwealth, Dep’t of Highways v. Gisborne, 391 S.W.2d 714 (Ky. 1965) (“It makes no difference whether property is condemned and appropriated for a public use, or is “injured or destroyed” for a public purpose; the owner of the property when any of these conditions occur must be justly compensated. KY. Const. §§ 13, 242. It does not matter whether the taking or injuring is permanent or temporaryâ€?).[35]
 See 2A-6 Nichols on Eminent Domain § 6.03 (Lexis 2006) (“Inverse condemnation is simply a generic description applicable to all actions in which a property owner, in the absence of a formal condemnation proceeding, seeks to recover from a governmental entity for the appropriation of his property interest�).[36]
United States v. Causby, 328 U.S. 256 (1946) (holding frequent plane flights over plaintiff’s land is a taking).[37]
See generally Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871).Â
[38]
See generally Commonwealth v. Kelley, 236 S.W.2d 695 (Ky.1951) (The owner alleged that the construction of a culvert and its improper maintenance by the Commonwealth caused flooding of his property and damaged the foundation of his house).[39]
V. T. C. Lines, Inc. v. Harlan, 313 S.W.2d 573[40]
Polsgrove v. Moss, 154 Ky. 408, 415 (Ky. 1913)  “In the exercise of the police power…the principles governing the subject are thus stated: It is to secure and promote the public health, safety, and convenience that municipal corporations are so generally and so liberally endowed with power to prevent and abate nuisances.â€?[41]
Berger, Lawrence Article, A Policy Analysis of the Taking Problem NYU Law Review Vol. 49 May-June 1974 Number 2 & 3.[42]
Commonwealth v. Kelley, 236 S.W.2d at 695 (Ky.1951).[43]
123 U.S. 623 (U.S. 1887) (The case held that a state could claim a building that constituted a brewery was a nuisance and did not have to compensate the owner because there was no taking when the owner could use the building for lawful purposes).[45]
131 S.W.3d 745 (Ky. 2004). (Ordinance prohibiting smoking in all restaurants and bars in Fayette County, KY was upheld as a valid exercise of the police power of the municipality).[47]
See in general Tufts, David W. Article, Comment:Â Taking a Look at the Modern Takings Clause Jurisprudence: Finding Private Property Protection Under the Federal and Utah Constitutions 1994 B.Y.U.L. Rev. 893.[48]
Arlington National Cemetery Website “Biography of Oliver Wendell Holmes, Jr.â€?, available at http://www.arlingtoncemetery.net/owholmes.htm (last modified 3/6/07). (“He was known on the Court as “The Great Dissenter” because of the brilliant legal reasoning found in his written opinionsâ€?).[49]
Pennsylvania Coal, 260 U.S. 393, 412 (1922).[51]
Pennsylvania Coal, 260 U.S. at 415. “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.�[52]
Id at 416 (“As we already have said, this is a question of degree — and therefore cannot be disposed of by general propositionsâ€?).[53]
Id at 413 (“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power�).[54]
Berchin, Sondra E. Comment, Regulation of Land Use: From Magna Carta to a Just Formation, 23 U.C.L.A. Rev. 904, 911-912 (1976).[55]
528 S.W.2d 684 (Ky. 1975).[56]
 Dep’t for Natural Res. and Envtl. Prot. v. No. 8 Ltd. of Va. (involved Ky. Rev. Stat. § 350.060 which was a statute meant to protect those parties who had used a “broad form deedâ€? in transferring the mineral estate of the land.) For a general discussion of the “broad form deedâ€? in the transferring of mineral rights see Pfeiffer, Robert M. Note, Kentucky’s New Broad Form Deed Law – Is It Constitutional? 1 J. Min. L. & Pol’y 57, 58 (1985-1986). (“The phrase “broad form deedâ€? is a loosely-defined term applied to certain deeds severing the mineral estate from the surface estate. The broad form deed is, as its name suggests, a mere form. Many of these deeds are identical except for particulars such as names and addresses. Indeed, in some counties those who acquired mineral rights by use of the broad form deed ordered specially printed deed books so that county clerks could simply fill in the blanks with the pertinent information.”) [57]
528 S.W.2d 684 (Ky. 1975).[59]
Id at 686 (“Here the legislation is ineffective as an environmental conservation measure�).[60]
Id at 685 (“Article 1, Section 10 (1) and Amendments 5 and 14 of the Constitution of the United States and Sections 13, 19 and 242 of the Constitution of the Commonwealth of Kentucky provide that the legislature may not impair the obligations of a contract and that private property may not be taken for a public use without just compensation. However, government could hardly go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are emasculated�).[61]
Id at 686 (“This dissection exposes the “gut issue” hereâ€?)[62]
Id at 685 (“The limits are that the police power may be used so as to invade private rights only if the legislation bears a real and substantial relation to the public health, safety, morality or some other phase of the general welfare. This dissection exposes the “gut issue” here.  May subsection 8 be justified as a legitimate exercise of the police power?â€?).[63]
Dep’t for Natural Res. and Envtl. Prot. v. No. 8 Ltd. of Va., 528 S.W.2d at 686 (“In order to be justified it must stand as an environmental conservation measure. It may well be that the General Assembly, in the exercise of its legislative wisdom, might strike a balance between the “energy crunch” and the necessity to conserve the environment which, for example, would prohibit strip mining entirely, prohibit strip mining which would remove tillable soil from production, limit strip mining to areas which have less than a given percentage of grade, require extensive restoration and reforestation of land to be stripped, limit the activity in areas where the watershed and wildlife might be adversely affected and even protect aesthetic beauty. But that is not this caseâ€?).[65]
Id at 686-687 (“Subsection 8 delegates to countless private individuals who own interests in surface estates from which the mineral has been severed the right to undo whatever environmental conservation purpose the legislation may have by granting their consent, for a consideration, to surface mining on their land. It is beyond cavil that the primary purpose and effect of subsection 8 is to change the relative legal rights and economic bargaining positions of many private parties under their contracts rather than achieve any public purpose�).[66]
Dep’t for Natural Res. and Envtl. Prot. v. No. 8 Ltd. of Va., 528 S.W.2d at 686.[67]
Id at 686-687 (“It is beyond cavil that the primary purpose and effect of subsection 8 is to change the relative legal rights and economic bargaining positions of many private parties under their contracts rather than achieve any public purpose. It is, therefore, axiomatic that subsection 8 is unconstitutional�).[68]
Penn Cent. Transp. Co. v. New York City, 438 U.S. at 104 (1978).
[73]
Penn Cent. Transp. Co. v. New York City, 438 U.S. at 104 (1978).[75]
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (U.S. 1978).[76]
Id at 113-114 (“Although the designation of a landmark and landmark site restricts the owner’s control over the parcel, designation also enhances the economic position of the landmark owner in one significant respect. Under New York City’s zoning laws, owners of real property who have not developed their property to the full extent permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the same city blockâ€?)[77]
 Id at 136 (“More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investmentâ€?).[78]
 Id at 138 (“The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties�).[79]
See generally Note, Francis, Leslie Pickering Penn Central Transportation Company v. New York City:Â Easy Takings Cases Make Uncertain Law 1980 UTAH L. REV. 369.[80]
678 S.W.2d 378, 381 (Ky. 1984).[81]
KY. REV. STAT. § 146.200-.360 (Banks-Baldwin 2006).
[82]
KY. REV. STAT. § 146.270 (Banks-Baldwin 2006).
[83]
See Supra note 80, at 381.[84]
Commonwealth, Natural Res. & Envtl. Prot. Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 380 (Ky. 1984) (“The acts included a part of the Big South Fork of the Cumberland River in McCreary County in the Wild Rivers system. In 1973, the Department of Natural Resources developed general but imprecise boundary maps�).[85]
539 S.W.2d 303 (Ky. 1976).[86]
See generally Note, Winther, Monique Duparc Private Property and Environmental Regulatory Takings: A Forward Look into Rights and Remedies, as Illustrated by an Excursion into the Wild Rivers Act of Kentucky, 73 KY. L.J. 999. and Comment, Hopson, Howell Commonwealth v. Stephens: The Taking Doctrine At Work in Environmental Law Use Planning, 65 KY. L.J. 729, 737-40 (1976-77).
[87]
Commonwealth, Natural Res. & Envtl. Prot. Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 380 (Ky. 1984).
[89]
Id at 380 (“On July 22, the Commonwealth formally published maps designating the boundaries of the Wild Rivers Act consistent with the statutory amendments�).[90]
Id at 380 (“On April 7, 1976, prior to the effective date of the amendments, the Department received a letter from Bob Gable, Chairman of the Board of Stearns, indicating that his company was to begin a large-scale, multiple-use land development, clear cutting of timber, construction of vacation and retirement homes, deep mining, strip mining, extension of their railway system, oil and gas drilling and new road construction. This amounted to an inauguration of every activity that was then prohibited in the Wild Rivers area. It was an obvious challenge to the right of the Commonwealth to proceed with the Wild Rivers program. On April 15, 1976, the Department issued an administrative order to abate pursuant to KRS 224.071, directing Gable to discontinue any threatened action until a hearing could be held before a hearing officer on April 22. Before the hearing, Stearns obtained a restraining order enjoining the Commonwealth from proceeding with any hearing on the abatement order. On April 23, the Franklin Circuit Court granted a temporary injunction against the Commonwealth enjoining them from otherwise interfering with any activity or operation by Stearns in connection with the timbering and/or foresting of trees�).[92]
Id at 380 (“On January 30, 1981, the trial judge found the Commonwealth to be liable for taking and damaging the Stearns property in violation of the Kentucky and United States Constitutions. This appeal followed. This Court reverses the judgment because the trial court erred in finding the Wild Rivers Act had taken the Stearns’ propertyâ€?).[93]
Commonwealth, Natural Res. & Envtl. Prot. Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 380 (Ky. 1984).
[94]
Id at 381 (“The enforcement of the act could not have occurred until at least July 22, 1976, when the boundaries were officially designated by proper regulation. Accordingly, the trial court committed reversible error and was clearly erroneous as a matter of law when it found the date of the taking to be June 25, 1975�).[95]
Id at 381 (“In Kentucky, the Wild Rivers Act, if it had been fully executed, could have been a taking�).[96]
Id at 381 (“Stearns used the area for access and presuming a showing that the present access was inadequate, the company would have been cut off from the coal because no new roads could be built. No mining was allowed and Stearns was not permitted to clear-cut timber. These prohibitions would greatly interfere with the company’s operation and impair its financial interests. The land had to remain practically untouched and in a primitive natural state. Here even though the law gave authority for such action by the state, there was no enforcement which deprived Stearns of any valuable rightâ€?).[97]
Id at 382. “Here the evidence is very strong that Stearns has made substantial beneficial use of the property. During the period of the alleged taking, there have been continued timber operations, a 5-year oil lease on over 9,000 acres, a 10-year lease to the Commonwealth of 10,000 acres for public hunting and wildlife management. A lease of 37,000 acres to the Western Reserve Oil Company, and extensive logging operations.�[98]
Id at 382. “The original law itself is reasonable and the purpose of the law is within the overall scope of a public purpose. The valid exercise of police power which may result in expense or loss of property is not a taking of property without just compensation.�
[99]
See Supra note 95, at 381.[100]
Lucas, 505 U.S. at 1003.[101]
See Page, Gregory Daniel Lucas v. South Carolina Coastal Council and Justice Scalia’s Primer on Property Rights: Advancing New Democractic Traditions by Defending the Tradition of Property. 24 Wm. & Mary Envtl. L. & Pol’y Rev. 161. (2000).
[102]
See Henderer, Peter L. The Impact of Lucas v. South Carolina Coastal Council and The Logically Antecedent Question: A Practitioner’s Guide to Fifth Amendment Takings of Wetlands. 3 Envtl. Law. 407 (Feb. 1997).
[103]
Lucas, 505 U.S. at 1006-1007 (U.S. 1992).[107]
Lucas, 505 U.S. at 1027 (U.S. 1992). “Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.â€?[112]
Id at 1031 (“It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner’s land; they rarely support prohibition of the “essential use” of land. The question, however, is one of state law to be dealt with on remandâ€?)[113]
See Babcock, Hope M. Has the U.S. Supreme Court Finally Drained the Swamp of Takings Jurisprudence: The Impact of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches. 19 Harv. Envtl. L. Rev. 1 (1995).
[114]
860 S.W.2d 280 (Ky 1993).[116]
Ward v. Harding, 860 S.W.2d at 282 (Ky. 1993) (“The issue joined between appellants and appellee’ is whether a broad form deed mineral owner may, by virtue of that instrument alone, engage in surface miningâ€?).[117]
Id at 284 (“Prior to addressing the issues we believe to be controlling, it is necessary to address a number of subsidiary questions. First, appellants contend, as they have in both courts below, that the real property they own is not covered by the deed on which appellees rely�).[118]
Ky. Const. § 19 (“In any instrument heretofore or hereafter executed purporting to sever the surface and mineral estates or to grant a mineral estate or to grant a right to extract minerals, which fails to state or describe in express and specific terms the method of coal extraction to be employed, or where said instrument contains language subordinating the surface estate to the mineral estate, it shall be held, in the absence of clear and convincing evidence to the contrary, that the intention of the parties to the instrument was that the coal be extracted only by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed, and that the mineral estate be dominant to the surface estate for the purposes of coal extraction by only the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed�).[120]
U.S. Const. Art. I, § 10, CL. 1  (“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility�).[122]
Ward v. Harding, 860 S.W.2d at 285 (Ky. 1993) (“The parties have brought to our attention the fact of the Constitutional Amendment and have asserted their constitutional challenges to it�). [123]
Id at 287 (“As it was neither fair nor just to deny damages for surface destruction, it is neither fair nor just to permit surface mining contrary to the wishes of the surface owner and beyond the contemplation of the original parties to those instruments. As we now hold the firm conviction that the conveyance or minerals by means of a broad form deed did not include the right to strip mine, we hereby overrule that portion of Buchanan v. Watson and its progeny which survived our decision in Akers v. Baldwin. As this Court’s decision in Buchanan v. Watson presumed a right to surface mine merely by virtue of the ownership of mineral rights, by this decision we hold that no such presumption shall hereafter existâ€?).[124]
290 S.W.2d 40 (Ky. 1956).[125]
736 S.W.2d 294 (Ky. 1987).[126]
290 S.W.2d 40, 41 (Ky. 1956) (“In this declaratory judgment action, two questions are presented: May the owner of minerals underlying a tract of land remove coal therefrom by a strip mining process which results in the destruction of the surface owned by another? If so, is the owner of the coal liable for damages to the surface owner for such surface rights as may be destroyed?�).[127]
Id at 43 (“We think the Chancellor correctly decided that since the appellant had the right to remove all of the coal in, on, and under the surface of this tract, the particular method contemplated by the parties (in the absence of language prohibiting other methods) does not preclude him from utilizing the only feasible process of extracting the coal�).[128]
Id at 43 (“Two fundamental rules for construction of deeds are set forth in McIntire v. Marian Coal Co., 190 Ky. 342, 227 S.W. 298, 299. These include: that a deed which grants land and certain specified rights and privileges, there being no ambiguity in the instrument, will be construed according to its terms, and enforced strictly according to its terms. But, where there is ambiguity or uncertainty in the deed, it will be construed most strongly against the grantor and in favor of the grantee….that the instrument shall be construed most strongly against the grantors and in favor of the grantee both upon the grant of the property and the rights and privileges specified”).[129]
Akers v. Baldwin, 736 S.W.2d at 296 (Ky. 1987)  (“An injunction was sought to prevent Baldwin from issuing strip mining permits where the right to strip mine was claimed under an instrument which severed the minerals and the surface, and where said instrument did not specifically give the mineral owner the right to mine in such manner, and where the surface owner objected to, or did not consent to, such method of mining�)[130]
Id at 296-297 (“In the second case, Baker v. Wooten, appellant Baker, plaintiff below, is the lessee of the mineral rights of a 427 acre tract of land in Perry County. Appellees Elizabeth Wooten and her children and their spouses are the owners of the surface rights to a portion of that land. Baker’s lessors trace their title in the coal and other minerals to a 1910 deed which severed the mineral estate from the surface estate. Baker was engaged in strip mining, with a valid permit, on land adjacent to the property owned by appellees. Appellees denied Baker permission to enter on the surface of their property to do geological work prior to beginning strip mining operations thereon. Baker filed an action in the Perry Circuit Court, seeking a declaration of rights and injunctive relief which would enable him to strip mine on the Wooten property. When the lawsuit was filed no legislation in Kentucky specifically addressed the construction and interpretation of mineral severance deeds. Baker moved for summary judgment, claiming that existing Kentucky common law gave him the absolute right to strip mine. The Wootens filed a cross-claim and a motion for summary judgment, claiming that KRS 381.930-945 prevented their property from being strip minedâ€?).[131]
Ky. Rev. Stat. § 381.930 (Banks-Baldwin 2006) (“The purposes of KRS 381.935 to 381.945 are as follows: (1) To facilitate and require the demonstration of a clear understanding between the owners of surface and mineral estates in land concerning their respective rights to use and occupy or injure the surface of the land; (6) To codify a rule of construction for mineral deeds relating to coal extraction so as to implement the intention of the parties at the time the instrument was created�).[132]
Akers v. Baldwin, 736 S.W.2d at 309 (Ky. 1987) (“The power to make rules and to determine substantive issues of law is solely within the power of the judiciary�).[133]
Id at 304 (“Very simply stated, under the present status of Kentucky law, the owner of mineral rights under a broad form deed may use the surface — all of it — to acquire the minerals lying thereunder. The only restriction (unless one appears in the deed) is that the use of said surface may not be oppressive, arbitrary, malicious or wanton. We have reexamined the cases which led to this rule of law and frankly find no fault with themâ€?).[134]
Id at 307 (“We can no longer countenance the existence of such a judicially created public policy, and therefore, as stated, we overrule that part of Buchanan v. Watson which denies damages to the owner of the surface of land�).[135]
Ward v. Harding, 860 S.W.2d at 287 (“As it was neither fair nor just to deny damages for surface destruction, it is neither fair nor just to permit surface mining contrary to the wishes of the surface owner and beyond the contemplation of the original parties to those instruments. As we now hold the firm conviction that the conveyance or minerals by means of a broad form deed did not include the right to strip mine, we hereby overrule that portion of Buchanan v. Watson and its progeny which survived our decision in Akers v. Baldwin. As this Court’s decision in Buchanan v. Watson presumed a right to surface mine merely by virtue of the ownership of mineral rights, by this decision we hold that no such presumption shall hereafter existâ€?).[136]
See Supra Note 120, U.S. Const. Art. I, § 10, CL. 1.[137]
Ward v. Harding, 860 S.W.2d at 288 (Ky. 1993) (“Despite our view that the right to strip mine was not a right properly flowing from the original conveyance, we must nevertheless consider appellees’ claim that Section 19(2) of the Constitution of Kentucky violates Article I, Section 10 of the Constitution of the United States, the “Contract Clause.” As we have said hereinabove, at the time of the original mineral conveyance, the parties could not have intended any substantial disturbance of the surface. The original contract did not create a right to surface mine; this right, such as it was, arose by court decision half a century after the conveyanceâ€?).[138]
 Id at 288 (“Akers went astray when it elevated the rights of those who acquired their interest subsequent to Buchanan to immunity from modification. Those who acquired such interests knew or should have known that Buchanan was not indisputable nor irrefutable and that in time its holding could be reconsidered and amended or overruled. To grant immunity from change is to concede that one may acquire a vested interest in the decision of a court, a proposition universally rejected. The applicable rule is well stated as follows: There is no vested right in the decisions of a court, and a change of decisions of a state court does not constitute the passing of a law, although the effect of such change is to impair the validity of a contract made in reliance on prior decisions”).[139]
Id at 288 (“At the outset, we have difficulty bringing this case within the ambit of “takings” jurisprudenceâ€?).[142]
Ward v. Harding, 860 S.W.2d at 289 (“When the principles in Lucas are applied here, it would appear that appellees have a common law right to remove their coal in accordance with the instrument of severance and in the manner contemplated therein, but are without any protected right to retain benefits claimed by virtue of our previous decisions�).[143]
 Id at 289 (“Manifestly, the determination of property rights acquired by virtue of written instruments is a matter of State law. Texaco, Inc. v. Short; Doochin v. Rackley, 610 S.W.2d 715, 719 (Tenn. 1981). As appellee’s entitlement to remove their minerals in accordance with the instrument of acquisition has not been affected by Section 19(2) of the Constitution of Kentucky, there has been no violation of the Fifth and Fourteenth Amendments to the Constitution of the United Statesâ€?).[144]
Ward v. Harding, 860 S.W.2d at 294 (Ky. 1993).[147]
Pennsylvania Coal, 260 U.S. at 414; Citing in Ward, 860 S.W.2d at 294.
[148]
Ward v. Harding 860 S.W.2d at 294 (Ky. 1993).[150]
For purposes of brevity, the remaining sections of this note will only mention property rights incidental to the nuisance claims and environmental regulations. See Footnote 52 concerning property rights in relation to the broad form deed. For an excellent article on other property rights and specifically Ward v. Harding, see Gatch, Leah A. Note, Ward v. Harding: Kentucky Strips Miners of Dominate Rights, Burying a Century of Litigation 21 N. Ky. L. Rev. 649 (Summer 1994).[151]
Restat 2d of Torts, § 821A. (“Meaning of “nuisance.” “The term frequently is used in several different senses. In popular speech it often has a very loose connotation of anything harmful, annoying, offensive or inconvenient, as when it is said that a man makes a nuisance of himself by bothering others. Occasionally this careless usage has crept into a court opinion. If the term is to have any definite legal significance, these cases must be completely disregardedâ€?).[152]
Somerset v. Sears, 313 Ky. 784, 786 (Ky. 1950).[153]
Id at 786-787 (“It will be noted that when the proposed business is not unlawful, the essential elements of a nuisance are the unreasonable use of property which causes material annoyance, inconvenience or discomfort�).[154]
394 S.W.2d 755 (Ky. 1965).[156]
Id at 757-758 (“A permanent structure properly constructed and properly operated may constitute a nuisance. If so, it would be a permanent nuisance, and “the action must be brought within five years from the date such structure was completed and its operations commenced, or from the date of the first injury, or from the date it became apparent there would be injuries resulting from the structure or its operationâ€?).[157]
Id at 758 (“A permanent structure may, however, constitute or create a temporary nuisance. We have said this occurs when the structure has been negligently constructed, or negligently operated�).[159]
13 Ky. Prac. Tort Law § 14.2 & 14.3.[160]
Rst. 2d Torts § 821B.[161]
Rst. 2d Torts § 821D.[163]
Id at 625 (“In this case, the landowners’ claims are based upon the creation by Rockwell of a permanent nuisanceâ€?).[164]
Id at 627 (“In this case, there is no rational basis for a finding that the discharge of minute quantities of PCBs onto the landowners’ properties resulted in any interference with their use and enjoyment of the propertiesâ€?).[166]
Rockwell Int’l Corp. v. Commonwealth, 16 S.W.3d 316, 318 (Ky. Ct. App. 1999) (“In 1986, the Cabinet filed a complaint against Rockwell in the Franklin Circuit Court seeking enforcement of Kentucky’s environmental laws by injunctive reliefâ€?).[171]
Rockwell Int’l Corp. v. Commonwealth, 16 S.W.3d at 317 (Ky. Rev. Stat. § 224.01-400(4) references the reportable quantities of a hazardous substance that must be reported under 40 C.F.R. Part 302. PCBs are listed in 40 C.F.R. Part 302.4 of having a reportable quantity of one pound. Generally speaking, the chronology of the violation would follow a scenario like the following: Following an inspection, the Cabinet would conduct site assessments to identify hazardous substances believed to have been released to the environment. The applicable statutes to determine hazardous substances and reportable quantities are Ky. Rev. Stat. § 224.01-400(4) and 40 C.F.R. Part 302. If and when a reportable quantity is found under these statutes, then the facility would be asked to comply with Ky. Rev. Stat. § 224.01-400(18).[173]
See Supra Note 152 and Rockwell Int’l Corp. v. Wilhite, 143 S.W.3d at 625 (Ky. Ct. App. 2003) (“KRS 411.520(1) provides that nuisance actions arising at common law are governed statutorily by KRS 411.500 to 411.570. However, those statutes shall not be construed as repealing any of the statutes or common law of the Commonwealth relating to nuisance, nor shall be construed to abridge any other rights or remedies available for personal or property damage, but shall be held and construed as ancillary and supplemental theretoâ€?).[174]
See Supra Note 164, 143 S.W.3d at 627.[175]
Rockwell Int’l Corp. v. Commonwealth, 16 S.W.3d at 319.[176]
Id at 319 (“KRS 224.01-400(21)(f) requires that consideration be given to an “exposure assessment” in determining whether the remedial action proposed to be taken is protective of human health, safety, and the environment.â€? The Rockwell site-specific assessments were different than those of The Cabinet. When Rockwell would not initiate remedial measures to meet The Cabinets exposure assessments, the Cabinet had little choice but to seek an injunction to enforce Rockwell to complete the cleanup and remediationâ€?).[177]
See 143 S.W.3d at 627 and 16 S.W.3d at 317 (“In this case, there is no rational basis for a finding that the discharge of minute quantities of PCBs onto the landowners’ properties resulted in any interference with their use and enjoyment of the propertiesâ€?)  (“PCBs are listed in 40 C.F.R. Part 302.4 of having a reportable quantity of one pound.â€?). [178]
See Supra note 107, 505 U.S. at 1027 (U.S. 1992).[179]
See Supra note 164, 143 S.W.3d 627.[180]
See Supra note 163, 143 S.W.3d 635.[181]
See Supra note 160, Rst. 2d Torts § 821B.