Keystone Bituminous Coal Ass'n v. DeBenedictis

U.S. Supreme Court Keystone Bituminous v. DeBenedictis, 480
U.S. 470 (1987) Keystone Bituminous v.
DeBenedictis No. 85-1092 Argued November 10,
1986 Decided March 9, 1987 480
U.S. 470 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Section 4 of Pennsylvania's Bituminous Mine Subsidence and Land
Conservation Act (Act) prohibits coal mining that causes subsidence
damage to preexisting public buildings, dwellings, and cemeteries.
Implementing regulations issued by Pennsylvania's Department of
Environmental Resources (DER) require 50% of the coal beneath §
4-protected structures to be kept in place to provide surface
support, and extend § 4's protection to watercourses. Section 6 of
the Act authorizes the DER to revoke a mining permit if the removal
of coal causes damage to a § 4-protected structure or area and the
operator has not within six months repaired the damage, satisfied
any claim arising therefrom, or deposited the sum that repairs will
reasonably cost as security. Petitioners, who own or control
substantial coal reserves under Act-protected property, filed suit
in Federal District Court seeking to enjoin the DER from enforcing
the Act and regulations. The complaint alleged, inter
alia, that Pennsylvania recognizes a separate "support estate"
in addition to the surface and mineral estates in land; that
approximately 90% of the coal petitioners will mine was severed
from surface estates between 1890 and 1920; that petitioners
typically acquired waivers of any damages claims that might result
from coal removal; that § 4, as implemented by the 50% rule, and §
6 violate the Fifth Amendment's Takings Clause; and that § 6
violates Article I's Contracts Clause. Because petitioners had not
yet alleged or proved any specific injury caused by the enforcement
of §§ 4 and 6 or the regulations, the only question before the
District Court was whether the mere enactment of §§ 4 and 6 and the
regulations constituted a taking. The District Court granted DER's
motion for summary judgment on this facial challenge. The Court of
Appeals affirmed, holding that Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393 ,
does not control; that the Act does not effect a taking; and that
the impairment of private contracts effectuated by the Act was
justified by the public interests protected by the Act. Page 480 U. S. 471 Held: 1. Petitioners have not satisfied their burden of showing that
§§ 4 and 6 and the regulations' 50% rule constitute a taking of
private property without compensation in violation of the Fifth and
Fourteenth Amendments. Pennsylvania Coal does not control this
case, because the two factors there considered relevant -- the
Commonwealth's interest in enacting the law and the extent of the
alleged taking -- here support the Act's constitutionality. Pp. 480 U. S.
481 -502.

															(a) Unlike the statute considered in Pennsylvania Coal, the Act is intended to serve genuine, substantial, and legitimate
public interests in health, the environment, and the fiscal
integrity of the area by minimizing damage to surface areas. None
of the indicia of a statute enacted solely for the benefit of
private parties identified in Pennsylvania Coal are
present here. Petitioners' argument that § 6's remedies are
unnecessary to satisfy the Act's public purposes because of the
Commonwealth's insurance program that reimburses repair costs is
not persuasive, since the public purpose is served by deterring
mine operators from causing damage in the first place by making
them assume financial responsibility. Thus, the Commonwealth has
merely exercised its police power to prevent activities that are
tantamount to public nuisances. The character of this governmental
action leans heavily against finding a taking. Pp. 480 U. S.
485 -493.

															(b) The record in this case does not support a finding similar
to the one in Pennsylvania Coal that the Act makes it
impossible for petitioners to profitably engage in their business,
or that there has been undue interference with their
investment-backed expectations. Because this case involves only a
facial constitutional challenge, such a finding is necessary to
establish a taking. However, petitioners have never claimed that
their mining operations, or even specific mines, have been
unprofitable since the Act was passed, nor is there evidence that
mining in any specific location affected by the 50% rule has been
unprofitable. In fact, the only relevant evidence is testimony
indicating that § 4 requires petitioners to leave 27 million tons
(less than 2%) of their coal in place. Petitioners' argument that
the Commonwealth has effectively appropriated this coal, since it
has no other useful purpose if not mined, fails, because the 27
million tons do not constitute a separate segment of property for
taking law purposes. The record indicates that only 75% of
petitioners' underground coal can be profitably mined in any event,
and there is no showing that their reasonable "investment-backed
expectations" have been materially affected by the § 4-imposed
duty. Petitioners' argument that the Act constitutes a taking
because it entirely destroys the value of their unique support
estate also fails. As a practical matter, the support estate has
value only insofar as it is used to exploit another Page 480 U. S. 472 estate. Thus, the support estate is not a separate segment of
property for takings law purposes, since it constitutes just one
part of the mine operators' bundle of property rights. Because
petitioners retain the right to mine virtually all the coal in
their mineral estates, the burden the Act places on the support
estate does not constitute a taking. Moreover, since there is no
evidence as to what percentage of petitioners' support estates,
either in the aggregate or with respect to any individual estate,
has been affected by the Act, their Takings Clause facial challenge
fails. Pp. 480 U. S.
493 -502.

															2. Section 6 does not impair petitioners' contractual agreements
in violation of Article I, § 10, of the Constitution by denying
petitioners their right to hold surface owners to their contractual
waivers of liability for surface damage. The Contracts Clause has
not been read literally to obliterate valid exercises of the
States' police power to protect the public health and welfare.
Here, the Commonwealth has a significant and legitimate public
interest in preventing subsidence damage to the § 4-protected
buildings, cemeteries, and watercourses, and has determined that
the imposition of liability on coal companies is necessary to
protect that interest. This determination is entitled to deference,
because the Commonwealth is not a party to the contracts in
question. Thus, the impairment of petitioners' right to enforce the
generations-old damages waivers is amply justified by the public
purposes served by the Act. Pp. 480 U. S.
502 -506.

															771 F.2d 707, affirmed.

															STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. REHNQUIST,
C.J., filed a dissenting opinion, in which POWELL, O'CONNOR, and
SCALIA, JJ., joined, post, p. 480 U. S.
506 . Page 480 U. S. 473 JUSTICE STEVENS, delivered the opinion of the Court.

															In Pennsylvania Coal Co. v. Mahon, 260 U.
S. 393 (1922), the Court reviewed the constitutionality
of a Pennsylvania statute that admittedly destroyed "previously
existing rights of property and contract." Id. at 260 U. S. 413 .
Writing for the Court, Justice Holmes explained:

															"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. But obviously the implied limitation must have
its limits, or the contract and due process clauses are gone. One
fact for consideration in determining such limits is the extent of
the diminution. When it reaches a certain magnitude, in most if not
in all cases there must be an exercise of eminent domain, and
compensation to sustain the act. Page 480 U. S. 474 So the question depends upon the particular facts." Ibid. In that case, the "particular facts" led the
Court to hold that the Pennsylvania Legislature had gone beyond its
constitutional powers when it enacted a statute prohibiting the
mining of anthracite coal in a manner that would cause the
subsidence of land on which certain structures were located.

															Now, 65 years later, we address a different set of "particular
facts," involving the Pennsylvania Legislature's 1966 conclusion
that the Commonwealth's existing mine subsidence legislation had
failed to protect the public interest in safety, land conservation,
preservation of affected municipalities' tax bases, and land
development in the Commonwealth. Based on detailed findings, the
legislature enacted the Bituminous Mine Subsidence and Land
Conservation Act (Subsidence Act or Act), Pa.Stat.Ann., Tit. 52, §
1406.1 et seq. (Purdon Supp. 1986). Petitioners contend,
relying heavily on our decision in Pennsylvania Coal, that
§§ 4 and 6 of the Subsidence Act and certain implementing
regulations violate the Takings Clause, and that § 6 of the Act
violates the Contracts Clause of the Federal Constitution. The
District Court and the Court of Appeals concluded that Pennsylvania Coal does not control for several reasons,
and that our subsequent cases make it clear that neither § 4 nor §
6 is unconstitutional on its face. We agree. I Coal mine subsidence is the lowering of strata overlying a coal
mine, including the land surface, caused by the extraction of
underground coal. This lowering of the strata can have devastating
effects. [ Footnote 1 ] It often
causes substantial damage Page 480 U. S. 475 to foundations, walls, other structural members, and the
integrity of houses and buildings. Subsidence frequently causes
sinkholes or troughs in land which make the land difficult or
impossible to develop. Its effect on farming has been well
documented -- many subsided areas cannot be plowed or properly
prepared. Subsidence can also cause the loss of groundwater and
surface ponds. [ Footnote 2 ] In
short, it presents the type of environmental concern that has been
the focus of so much federal, state, and local regulation in recent
decades. [ Footnote 3 ]

															Despite what their name may suggest, neither of the "full
extraction" mining methods currently used in western Pennsylvania
[ Footnote 4 ] enables miners to
extract all subsurface coal; considerable amounts need to be left
in the ground to provide access, support, and ventilation to the
mines. Additionally, mining companies have long been required by
various Pennsylvania laws and regulations, the legitimacy of which
is not challenged here, to leave coal in certain areas for public
safety reasons. [ Footnote 5 ]
Since 1966, Pennsylvania has placed an additional set of
restrictions on the amount of coal that may be Page 480 U. S. 476 extracted; these restrictions are designed to diminish
subsidence and subsidence damage in the vicinity of certain
structures and areas.

															Pennsylvania's Subsidence Act authorizes the Pennsylvania
Department of Environmental Resources (DER) to implement and
enforce a comprehensive program to prevent or minimize subsidence
and to regulate its consequences. Section 4 of the Subsidence Act,
Pa.Stat.Ann., Tit. 52, § 1406.4 (Purdon Supp. 1986), prohibits
mining that causes subsidence damage to three categories of
structures that were in place on April 17, 1966: public buildings
and noncommercial buildings generally used by the public; dwellings
used for human habitation; and cemeteries. [ Footnote 6 ] Since 1966, the DER has applied Page 480 U. S. 477 a formula that generally requires 50% of the coal beneath
structures protected by § 4 to be kept in place as a means of
providing surface support. [ Footnote 7 ] Section 6 of the Subsidence Act, Pa.Stat.Ann.,
Tit. 52, § 1406.6 (Purdon Supp. 1986), authorizes the DER to revoke
a mining permit if the removal of coal causes damage to a structure
or area protected by § 4 and the operator has not within six months
either repaired the damage, satisfied any claim arising therefrom,
or deposited a sum equal to the reasonable cost of repair with the
DER as security. [ Footnote
8 ] Page 480 U. S. 478 II In 1982, petitioners filed a civil rights action in the United
States District Court for the Western District of Pennsylvania,
seeking to enjoin officials of the DER from enforcing the
Subsidence Act and its implementing regulations. Petitioners are an
association of coal mine operators and four corporations that are
engaged, either directly or through affiliates, in underground
mining of bituminous coal in western Pennsylvania. The members of
the association and the corporate petitioners own, lease, or
otherwise control substantial coal reserves beneath the surface of
property affected by the Subsidence Act. The defendants in the
action, respondents here, are the Secretary of the DER, the Chief
of the DER's Division of Mine Subsidence, and the Chief of the
DER's Section on Mine Subsidence Regulation.

															The complaint alleges that Pennsylvania recognizes three
separate estates in land: The mineral estate; the surface estate;
and the "support estate." Beginning well over 100 years ago,
landowners began severing title to underground coal and the right
of surface support while retaining or conveying away ownership of
the surface estate. It is stipulated that approximately 90% of the
coal that is or will be mined by petitioners in western
Pennsylvania was severed from the surface in the period between
1890 and 1920. When acquiring or retaining the mineral estate,
petitioners or their predecessors typically acquired or retained
certain additional rights that would enable them to extract and
remove the coal. Thus, they acquired the right to deposit wastes,
to provide for drainage and ventilation, and to erect facilities
such as tipples, roads, or railroads on the surface. Additionally,
they typically acquired a waiver of any claims for damages that
might result from the removal of the coal.

															In the portions of the complaint that are relevant to us,
petitioners alleged that both § 4 of the Subsidence Act, as
implemented Page 480 U. S. 479 by the 50% rule and § 6 of the Subsidence Act, constitute a
taking of their private property without compensation in violation
of the Fifth and Fourteenth Amendments. They also alleged that § 6
impairs their contractual agreements in violation of Article I, §
10, of the Constitution. [ Footnote
9 ] The parties entered into a stipulation of facts pertaining
to petitioners' facial challenge, and filed cross-motions for
summary judgment on the facial challenge. The District Court
granted respondents' motion.

															In rejecting petitioners' Takings Clause claim, the District
Court first distinguished Pennsylvania Coal, primarily on
the ground that the Subsidence Act served valid public purposes
that the Court had found lacking in the earlier case. 581 F.
Supp. 511 , 516 (1984). The District Court found that the
restriction on the use of petitioners' property was an exercise of
the Commonwealth's police power, justified by Pennsylvania's
interest in the health, safety, and general welfare of the public.
In answer to petitioners' argument that the Subsidence Act
effectuated a taking because a separate, recognized interest in
realty -- the support estate -- had been entirely destroyed, the
District Court concluded that, under Pennsylvania law, the support
estate consists of a bundle of rights, including some that were not
affected by the Act. That the right to cause damage to the surface
may constitute the most valuable "strand" in the bundle of rights
possessed by the owner of a support estate was not considered
controlling under our decision in Andrus v. Allard, 444 U. S. 51 (1979).

															In rejecting petitioners' Contracts Clause claim, the District
Court noted that there was no contention that the Subsidence Page 480 U. S. 480 Act or the DER regulations had impaired any contract to which
the Commonwealth was a party. Since only private contractual
obligations had been impaired, the court considered it appropriate
to defer to the legislature's determinations concerning the public
purposes served by the legislation. The court found that the
adjustment of the rights of the contracting parties was tailored to
those "significant and legitimate" public purposes. 581 F. Supp. at
514. At the parties' request, the District Court certified the
facial challenge for appeal.

															The Court of Appeals affirmed, agreeing that Pennsylvania
Coal does not control, because the Subsidence Act is a
legitimate means of "protect[ing] the environment of the
Commonwealth, its economic future, and its wellbeing." 771 F.2d
707, 715 (1985). The Court of Appeals' analysis of the Subsidence
Act's effect on petitioners' property differed somewhat from the
District Court's, however. In rejecting the argument that the
support estate had been entirely destroyed, the Court of Appeals
did not rely on the fact that the support estate itself constitutes
a bundle of many rights, but rather considered the support estate
as just one segment of a larger bundle of rights that invariably
includes either the surface estate or the mineral estate. As Judge
Adams explained:

															"To focus upon the support estate separately when assessing the
diminution of the value of plaintiffs' property caused by the
Subsidence Act therefore would serve little purpose. The support
estate is more properly viewed as only one "strand" in the
plaintiff's "bundle" of property rights, which also includes the
mineral estate. As the Court stated in Andrus, "[t]he
destruction of one strand' of the bundle is not a taking,
because the aggregate must be viewed in its entirety." 444 U.S. at 444 U. S. 65 . .
. . The use to which the mine operators wish to put the support
estate is forbidden. However, because the plaintiffs still possess
valuable mineral rights that enable Page 480 U. S.
481 them profitably to mine coal, subject only to the Subsidence
Act's requirement that they prevent subsidence, their entire
"bundle" of property rights has not been destroyed." Id. at 444 U. S.
716 .

															With respect to the Contracts Clause claim, the Court of Appeals
agreed with the District Court that a higher degree of deference
should be afforded to legislative determinations respecting
economic and social legislation affecting wholly private contracts
than when the State impairs its own agreements. The court held that
the impairment of private agreements effectuated by the Subsidence
Act was justified by the legislative finding

															"that subsidence damage devastated many surface structures, and
thus endangered the health, safety, and economic welfare of the
Commonwealth and its people." Id. at 444 U. S. 718 .
We granted certiorari, 475 U.S. 1080 (1986), and now affirm. III Petitioners assert that disposition of their takings claim
[ Footnote 10 ] calls for no
more than a straightforward application of the Court's decision in Pennsylvania Coal Co. v. Mahon. Although there are some
obvious similarities between the cases, we agree with the Court of
Appeals and the District Court that the similarities are far less
significant than the differences, and that Pennsylvania
Coal does not control this case.

															In Pennsylvania Coal, the Pennsylvania Coal Company had
served notice on Mr. and Mrs. Mahon that the company's mining
operations beneath their premises would soon reach a point that
would cause subsidence to the surface. The Mahons filed a bill in
equity seeking to enjoin the coal company from removing any coal
that would cause "the caving in, collapse Page 480 U. S. 482 or subsidence" of their dwelling. The bill acknowledged that the
Mahons owned only "the surface or right of soil" in the lot, and
that the coal company had reserved the right to remove the coal
without any liability to the owner of the surface estate.
Nonetheless, the Mahons asserted that Pennsylvania's then recently
enacted Kohler Act of 1921, P. L. 1198, Pa.Stat.Ann., Tit. 52, §
661 et seq. (Purdon 1966), which prohibited mining that
caused subsidence under certain structures, entitled them to an
injunction.

															After initially having entered a preliminary injunction pending
a hearing on the merits, the Chancellor soon dissolved it,
observing:

															"[T]he plaintiffs' bill contains no averment on which to base,
by implication or otherwise, any finding of fact that any interest,
public or private, is involved in the defendant's proposal to mine
the coal, except the private interest of the plaintiffs in the
prevention of private injury."

															Tr. of Record in Pennsylvania Coal v. Mahon, O.T. 1922,
No. 549, p. 23.

															The Pennsylvania Supreme Court reversed, concluding that the
Kohler Act was a proper exercise of the police power. 274 Pa. 489,
118 A. 491 (1922). One Justice dissented. He concluded that the
Kohler Act was not actually intended to protect lives and safety,
but rather was special legislation enacted for the sole benefit of
the surface owners who had released their right to support. Id. at 512-518, 118 A., at 499-501.

															The company promptly appealed to this Court, asserting that the
impact of the statute was so severe that "a serious shortage of
domestic fuel is threatened." Motion to Advance for Argument in Pennsylvania Coal v. Mahon, O.T. 1922, No. 549, p. 3. The
company explained that, until the Court ruled, "no anthracite coal
which is likely to cause surface subsidence can be mined," and that
strikes were threatened Page 480 U. S. 483 throughout the anthracite coal fields. [ Footnote 11 ] In its argument in this Court, the
company contended that the Kohler Act was not a bona fide exercise
of the police power, but in reality was nothing more than
" robbery under the forms of law,'" because its purpose was "not
to protect the lives or safety of the public generally, but merely
to augment the property rights of a favored few." See 260
U.S. at 396-398, quoting Loan Assn. v.
Topeka , 20 Wall. 655, 87 U. S. 664 (1875). Over Justice Brandeis' dissent, this Court accepted the
company's argument. In his opinion for the Court, Justice Holmes
first characteristically decided the specific case at hand in a
single, terse paragraph:

															"This is the case of a single private house. No doubt there is a
public interest even in this, as there is in every purchase and
sale and in all that happens within the commonwealth. Some existing
rights may be modified even in such a case. Rideout v.
Knox, 148 Mass. 368. But usually, in ordinary private affairs,
the public interest does not warrant much of this kind of
interference. A source of damage to such a house is not a public
nuisance, even if similar damage is inflicted on others in
different places. The damage is not common or public. Wesson v.
Washburn Iron Co., 13 Allen, 95, 103. The extent of the public
interest is shown by the statute to be limited, since the statute
ordinarily does not apply to land when the surface is owned by the
owner of the coal. Furthermore, it is not justified as a protection
of personal safety. That could be provided for by notice. Indeed,
the very foundation of this bill is that the defendant gave timely
notice of its intent to mine under the house. On the other hand,
the extent of the taking is great. It purports to abolish what is
recognized in Pennsylvania as an estate Page 480 U. S. 484 in land -- a very valuable estate -- and what is declared by the
Court below to be a contract hitherto binding the plaintiffs. If we
were called upon to deal with the plaintiffs' position alone, we
should think it clear that the statute does not disclose a public
interest sufficient to warrant so extensive a destruction of the
defendant's constitutionally protected rights."

															260 U.S. at 260 U. S.
413 -414.

															Then -- uncharacteristically -- Justice Holmes provided the
parties with an advisory opinion discussing "the general validity
of the Act." [ Footnote 12 ]
In the advisory portion of the Court's opinion, Justice Holmes
rested on two propositions, both critical to the Court's decision.
First, because it served only private interests, not health or
safety, the Kohler Act could not be "sustained as an exercise of
the police power." Id. at 260 U. S. 414 .
Second, the statute made it "commercially impracticable" to mine
"certain coal" in the areas affected by the Kohler Act. [ Footnote 13 ]

															The holdings and assumptions of the Court in Pennsylvania
Coal provide obvious and necessary reasons for distinguishing Pennsylvania Coal from the case before us today. Page 480 U. S. 485 The two factors that the Court considered relevant, have become
integral parts of our takings analysis. We have held that land use
regulation can effect a taking if it "does not substantially
advance legitimate state interests, . . . or denies an owner
economically viable use of his land." Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980) (citations omitted); see also Penn Central
Transportation Co. v. New York City, 438 U.
S. 104 , 438 U. S. 124 (1978). Application of these tests to petitioners' challenge
demonstrates that they have not satisfied their burden of showing
that the Subsidence Act constitutes a taking. First, unlike the
Kohler Act, the character of the governmental action involved here
leans heavily against finding a taking: the Commonwealth of
Pennsylvania has acted to arrest what it perceives to be a
significant threat to the common welfare. Second, there is no
record in this case to support a finding, similar to the one the
Court made in Pennsylvania Coal, that the Subsidence Act
makes it impossible for petitioners to profitably engage in their
business, or that there has been undue interference with their
investment-backed expectations. The Public Purpose Unlike the Kohler Act, which was passed upon in Pennsylvania
Coal, the Subsidence Act does not merely involve a balancing
of the private economic interests of coal companies against the
private interests of the surface owners. The Pennsylvania
Legislature specifically found that important public interests are
served by enforcing a policy that is designed to minimize
subsidence in certain areas. Section 2 of the Subsidence Act
provides:

															"This act shall be deemed to be an exercise of the police powers
of the Commonwealth for the protection of the health, safety and
general welfare of the people of the Commonwealth, by providing for
the conservation of surface land areas which may be affected in the
mining of bituminous coal by methods other than 'open pit' or Page 480 U. S. 486 'strip' mining, to aid in the protection of the safety of the
public, to enhance the value of such lands for taxation, to aid in
the preservation of surface water drainage and public water
supplies and generally to improve the use and enjoyment of such
lands and to maintain primary jurisdiction over surface coal mining
in Pennsylvania."

															Pa.Stat.Ann., Tit. 52, § 1406.2 (Purdon Supp. 1986). The
District Court and the Court of Appeals were both convinced that
the legislative purposes [ Footnote 14 ] set forth in the statute were genuine,
substantial, and legitimate, and we have no reason to conclude
otherwise. [ Footnote 15 ]

															None of the indicia of a statute enacted solely for the benefit
of private parties identified in Justice Holmes' opinion are
present here. First, Justice Holmes explained that the Kohler Act
was a "private benefit" statute, since it "ordinarily does not
apply to land when the surface is owned by the owner of the coal."
260 U.S. at 260 U. S. 414 .
The Subsidence Act, by contrast, has no such exception. The current
surface owner may only waive the protection of the Act if the DER
consents. See 25 Pa. Code § 89.145(b) (1983). Moreover,
the Court was forced to reject the Commonwealth's safety
justification for the Kohler Act because it found that the
Commonwealth's interest in safety could as easily have been
accomplished through a notice requirement to landowners. The
Subsidence Act, by contrast, is designed to accomplish a number of
widely varying interests, with reference to which petitioners have
not suggested alternative methods through which the Commonwealth
could proceed.

															Petitioners argue that at least § 6, which requires coal
companies to repair subsidence damage or pay damages to those Page 480 U. S. 487 who suffer subsidence damage, is unnecessary because the
Commonwealth administers an insurance program that adequately
reimburses surface owners for the cost of repairing their property.
But this argument rests on the mistaken premise that the statute
was motivated by a desire to protect private parties. In fact,
however, the public purpose that motivated the enactment of the
legislation is served by preventing the damage from occurring in
the first place -- in the words of the statute -- "by providing for
the conservation of surface land areas." Pa.Stat.Ann., Tit. 52, §
1406.2 (Purdon Supp. 1986). The requirement that the mine operator
assume the financial responsibility for the repair of damaged
structures deters the operator from causing the damage at all --
the Commonwealth's main goal -- whereas an insurance program would
merely reimburse the surface owner after the damage occurs.
[ Footnote 16 ]

															Thus, the Subsidence Act differs from the Kohler Act in critical
and dispositive respects. With regard to the Kohler Act, the Court
believed that the Commonwealth had acted only to ensure against
damage to some private landowners' homes. Justice Holmes stated
that, if the private individuals needed support for their
structures, they should not have Page 480 U. S. 488 "take[n] the risk of acquiring only surface rights." 260 U.S. at 260 U. S. 416 .
Here, by contrast, the Commonwealth is acting to protect the public
interest in health, the environment, and the fiscal integrity of
the area. That private individuals erred in taking a risk cannot
estop the Commonwealth from exercising its police power to abate
activity akin to a public nuisance. The Subsidence Act is a prime
example that

															"circumstances may so change in time . . . as to clothe with
such a [public] interest what at other times . . . would be a
matter of purely private concern." Block v. Hirsh, 256 U. S. 135 , 256 U. S. 155 (1921).

															In Pennsylvania Coal, the Court recognized that the
nature of the State's interest in the regulation is a critical
factor in determining whether a taking has occurred, and thus
whether compensation is required. [ Footnote 17 ] The Court distinguished the case before it
from a case it had decided eight years earlier, Plymouth Coal
Co. v. Pennsylvania, 232 U. S. 531 (1914). There, "it was held competent for the legislature to
require a pillar of coal to be left along the line of adjoining
property." Pennsylvania Coal, 260 U.S. at 260 U. S. 415 .
Justice Holmes explained that, unlike the Kohler Act, the statute
challenged in Plymouth Coal dealt with

															"a requirement for the safety of employees invited into the
mine, and secured an average reciprocity of advantage that has been
recognized as a justification of various laws."

															260 U.S. at 260 U. S.
415 .

															Many cases before and since Pennsylvania Coal have
recognized that the nature of the State's action is critical in
takings analysis. [ Footnote
18 ] In Mugler v. Kansas, 123 U.
S. 623 Page 480 U. S. 489 (1887), for example, a Kansas distiller who had built a brewery
while it was legal to do so challenged a Kansas constitutional
amendment which prohibited the manufacture and sale of intoxicating
liquors. Although the Court recognized that the "buildings and
machinery constituting these breweries are of little value" because
of the Amendment, id. at 123 U. S. 657 ,
Justice Harlan explained that a

															"prohibition simply upon the use of property for purposes that
are declared, by valid legislation, to be injurious to the health,
morals, or safety of the community, cannot, in any just sense, be
deemed a taking or appropriation of property. . . . The power which
the States have of prohibiting such use by individuals of their
property as will be prejudicial to the health, the morals, or the
safety of the public, is not -- and, consistently with the
existence and safety of organized society cannot be -- burdened
with the condition that the State must compensate such individual
owners for pecuniary losses they may sustain, by reason of their
not being permitted, by a noxious use of their property, to inflict
injury upon the community." Id. at 123 U. S.
668 -669. Page 480 U. S. 490 See also Plymouth Coal Co., supra; Hadacheck v.
Sebastian, 239 U. S. 394 (1915); Reinman v. Little Rock, 237 U.
S. 171 (1915); Powell v. Pennsylvania, 127 U. S. 678 (1888).

															We reject petitioners' implicit assertion that Pennsylvania
Coal overruled these cases which focused so heavily on the
nature of the State's interest in the regulation. Just five years
after the Pennsylvania Coal decision, Justice Holmes
joined the Court's unanimous decision in Miller v.
Schoene, 276 U. S. 272 (1928), holding that the Takings Clause did not require the State
of Virginia to compensate the owners of cedar trees for the value
of the trees that the State had ordered destroyed. The trees needed
to be destroyed to prevent a disease from spreading to nearby apple
orchards, which represented a far more valuable resource. In
upholding the state action, the Court did not consider it necessary
to

															"weigh with nicety the question whether the infected cedars
constitute a nuisance according to common law; or whether they may
be so declared by statute." Id. at 276 U. S. 280 .
Rather, it was clear that the State's exercise of its police power
to prevent the impending danger was justified, and did not require
compensation. See also Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Omnia Commercial Co. v. United States, 261 U. S. 502 , 261 U. S. 509 (1923). Other subsequent cases reaffirm the important role that the
nature of the state action plays in our takings analysis. See
Goldblatt v. Hempstead, 369 U. S. 590 (1962); Consolidated Rock Products Co. v. Los
Angeles, 57 Cal. 2d
515 , 370 P.2d 342, appeal dism'd, 371 U. S.
36 (1962). As the Court explained in Goldblatt: "Although a comparison of values before and after" a regulatory
action "is relevant, . . . it is by no means conclusive. . . ." 369
U.S. at 369 U. S. 594 .
[ Footnote 19 ] Page 480 U. S. 491 The Court's hesitance to find a taking when the State merely
restrains uses of property that are tantamount to public nuisances
is consistent with the notion of "reciprocity of advantage" that
Justice Holmes referred to in Pennsylvania Coal. [ Footnote 20 ] Under our system of
government, one of the State's primary ways of preserving the
public weal is restricting the uses individuals can make of their
property. While each of us is burdened somewhat by such
restrictions, we, in turn, benefit greatly from the restrictions
that are placed on others. [ Footnote 21 ] See Penn Central Transportation Co. v.
New York City, 438 U.S. at 438 U. S.
144 -150 (REHNQUIST, J., dissenting); cf. California
Reduction Co. v. Sanitary Reduction Works, 199 U.
S. 306 , 199 U. S. 322 (1905). These restrictions are "properly treated as part of the
burden of common citizenship." Kimball Laundry Co. v. United
States, 338 U. S. 1 , 338 U. S. 5 (1949). Long ago it was recognized that "all property in Page 480 U. S. 492 this country is held under the implied obligation that the
owner's use of it shall not be injurious to the community," Mugler v. Kansas, 123 U.S. at 123 U. S. 665 ; see also Beer Co. v. Massachusetts, 97 U. S.
25 , 97 U. S. 32 (1878), and the Takings Clause did not transform that principle to
one that requires compensation whenever the State asserts its power
to enforce it. [ Footnote 22 ] See Mugler, 123 U.S. at 123 U. S.
664 .

															In Agins v. Tiburon, we explained that the

															"determination that governmental action constitutes a taking is,
in essence, a determination that the public at large, rather than a
single owner, must bear the burden of an exercise of state power in
the public interest,"

															and we recognized that this question "necessarily requires a
weighing of private and public interests." 447 U.S. at 447 U. S.
260 -261. As the cases discussed above demonstrate, the
public interest in preventing activities similar to public
nuisances is a substantial one, which in many instances has not
required compensation. The Subsidence Act, unlike the Kohler Act,
plainly seeks to further such an interest. Nonetheless, we need not
rest our decision on this factor alone, because petitioners have
also failed to make a Page 480 U. S. 493 showing of diminution of value sufficient to satisfy the test
set forth in Pennsylvania Coal and our other regulatory
takings cases. Diminution of Value and Investment-Backed
Expectations The second factor that distinguishes this case from Pennsylvania Coal is the finding in that case that the
Kohler Act made mining of "certain coal" commercially
impracticable. In this case, by contrast, petitioners have not
shown any deprivation significant enough to satisfy the heavy
burden placed upon one alleging a regulatory taking. For this
reason, their takings claim must fail.

															In addressing petitioners' claim, we must not disregard the
posture in which this case comes before us. The District Court
granted summary judgment to respondents only on the facial
challenge to the Subsidence Act. The court explained that

															"[b]ecause plaintiffs have not alleged any injury due to the
enforcement of the statute, there is as yet no concrete controversy
regarding the application of the specific provisions and
regulations. Thus, the only question before this court is
whether the mere enactment of the statutes and regulations
constitutes a taking. "

															581 F. Supp. at 513 (emphasis added). The next phase of the case
was to be petitioners' presentation of evidence about the actual
effects the Subsidence Act had and would have on them. Instead of
proceeding in this manner, however, the parties filed a joint
motion asking the court to certify the facial challenge for appeal.
The parties explained that an assessment of the actual impact that
the Act has on petitioners' operations "will involve complex and
voluminous proofs," which neither party was currently in a position
to present, App. 15-17, and stressed that, if an appellate court
were to reverse the District Court on the facial challenge, then
all of their expenditures in adjudicating the as-applied challenge
would be wasted. Based Page 480 U. S. 494 on these considerations, the District Court certified three
questions relating to the facial challenge. [ Footnote 23 ]

															The posture of the case is critical, because we have recognized
an important distinction between a claim that the mere enactment of
a statute constitutes a taking and a claim that the particular
impact of government action on a specific piece of property
requires the payment of just compensation. This point is
illustrated by our decision in Hodel v. Virginia Surface Mining
& Reclamation Assn., Inc., 452 U.
S. 264 (1981), in which we rejected a preenforcement
challenge to the constitutionality of the Surface Mining Control
and Reclamation Act of 1977. We concluded that the District Court
had been mistaken in its reliance on Pennsylvania Coal as
support for a holding that two statutory provisions were
unconstitutional because they deprived coal mine operators of the
use of their land. The Court explained:

															"[T]he court below ignored this Court's oft-repeated admonition
that the constitutionality of statutes ought not be decided except
in an actual factual setting that makes such a decision necessary. See Socialist Labor Party v. Gilligan, 406 U. S.
583 , 406 U. S. 588 (1972); Rescue Army v. Municipal Court, 331 U. S.
549 , 331 U. S. 568 -575, 331 U. S. 584 (1947); Alabama State Federation of Labor v. McAdory, 325 U. S.
450 , 325 U. S. 461 (1945).
Adherence to this rule is particularly important in cases raising
allegations of an unconstitutional taking of private property. Just
last Term, we reaffirmed: " Page 480 U. S. 495 ""[T]his Court has generally been unable to develop any "set
formula" for determining when "justice and fairness" require that
economic injuries caused by public action be compensated by the
government, rather than remain disproportionately concentrated on a
few persons.' Rather, it has examined the `taking' question by
engaging in essentially ad hoc, factual inquiries that
have identified several factors -- such as the economic impact of
the regulation, its interference with reasonable investment-backed
expectations, and the character of the government action -- that
have particular significance." Kaiser Aetna v. United
States, 444 U. S. 164 , 444 U. S. 175 (1979) (citations omitted)." "These ' ad hoc factual inquiries' must be conducted
with respect to specific property, and the particular estimates of
economic impact and ultimate valuation relevant in the unique
circumstances."

															"Because appellees' taking claim arose in the context of a
facial challenge, it presented no concrete controversy concerning
either application of the Act to particular surface mining
operations or its effect on specific parcels of land. Thus, the
only issue properly before the District Court and, in turn, this
Court, is whether the 'mere enactment' of the Surface Mining Act
constitutes a taking. See Agins v. Tiburon, 447 U. S.
255 , 447 U. S. 260 (1980). The
test to be applied in considering this facial challenge is fairly
straightforward. A statute regulating the uses that can be made of
property effects a taking if it 'denies an owner economically
viable use of his land. . . .' Agins v. Tiburon, supra, at 447 U. S. 260 ; see also
Penn Central Transp. Co. v. New York City, 438 U. S.
104 (1978)."

															452 U.S. at 452 U. S.
295 -296. Petitioners thus face an uphill battle in
making a facial attack on the Act as a taking.

															The hill is made especially steep because petitioners have not
claimed, at this stage, that the Act makes it commercially Page 480 U. S. 496 impracticable for them to continue mining their bituminous coal
interests in western Pennsylvania. Indeed, petitioners have not
even pointed to a single mine that can no longer be mined for
profit. The only evidence available on the effect that the
Subsidence Act has had on petitioners' mining operations comes from
petitioners' answers to respondents' interrogatories. Petitioners
described the effect that the Subsidence Act had from 1966-1982 on
13 mines that the various companies operate, and claimed that they
have been required to leave a bit less than 27 million tons of coal
in place to support § 4 areas. The total coal in those 13 mines
amounts to over 1.46 billion tons. See App. 284. Thus, § 4
requires them to leave less than 2% of their coal in place.
[ Footnote 24 ] But, as we
have indicated, nowhere near all of the underground coal is
extractable, even aside from the Subsidence Act. The categories of
coal that must be left for § 4 purposes and other purposes are not
necessarily distinct sets, and there is no information in the
record as to how much coal is actually left in the ground solely because of § 4. We do know, however, that
petitioners have never claimed that their mining operations, or
even any specific mines, have been unprofitable since the
Subsidence Act was passed. Nor is there evidence that mining in any
specific location affected by the 50% rule has been
unprofitable.

															Instead, petitioners have sought to narrowly define certain
segments of their property, and assert that, when so defined, the
Subsidence Act denies them economically viable use. They advance
two alternative ways of carving their property in order to reach
this conclusion. First, they focus on the specific tons of coal
that they must leave in the ground under Page 480 U. S. 497 the Subsidence Act, and argue that the Commonwealth has
effectively appropriated this coal, since it has no other useful
purpose if not mined. Second, they contend that the Commonwealth
has taken their separate legal interest in property -- the "support
estate."

															Because our test for regulatory taking requires us to compare
the value that has been taken from the property with the value that
remains in the property, one of the critical questions is
determining how to define the unit of property "whose value is to
furnish the denominator of the fraction." Michelman, Property,
Utility, and Fairness: Comments on the Ethical Foundations of "Just
Compensation" Law, 80 Harv.L.Rev. 1165, 1192 (1967). [ Footnote 25 ] In Penn
Central, the Court explained:

															"'Taking' jurisprudence does not divide a single parcel into
discrete segments and attempt to determine whether rights in a
particular segment have been entirely abrogated. In deciding
whether a particular governmental action has effected a taking,
this Court focuses rather both on the character of the action and
on the nature of the interference with rights in the parcel as
a whole -- here the city tax block designated as the 'landmark
site.'"

															438 U.S. at 438 U. S.
130 -131. Similarly, in Andrus v. Allard, 444 U. S. 51 (1979), we held that,

															"where an owner possesses a full 'bundle' of property rights,
the destruction of one 'strand' of the bundle is not a taking,
because the aggregate must be viewed in its entirety." Id. at 444 U. S. 65 -66.
Although these verbal formulizations do not solve all of the
definitional issues that may arise in defining the relevant mass of
property, they do provide sufficient guidance to compel us to
reject petitioners' arguments. Page 480 U. S. 498 The Coal in Place The parties have stipulated that enforcement of the DER's 50%
rule will require petitioners to leave approximately 27 million
tons of coal in place. Because they own that coal, but cannot mine
it, they contend that Pennsylvania has appropriated it for the
public purposes described in the Subsidence Act.

															This argument fails for the reason explained in Penn
Central and Andrus. The 27 million tons of coal do
not constitute a separate segment of property for takings law
purposes. Many zoning ordinances place limits on the property
owner's right to make profitable use of some segments of his
property. A requirement that a building occupy no more than a
specified percentage of the lot on which it is located could be
characterized as a taking of the vacant area as readily as the
requirement that coal pillars be left in place. Similarly, under
petitioners' theory, one could always argue that a setback
ordinance requiring that no structure be built within a certain
distance from the property line constitutes a taking, because the
footage represents a distinct segment of property for takings law
purposes. Cf. Gorieb v. Fox, 274 U.
S. 603 (1927) (upholding validity of setback ordinance)
(Sutherland, J.). There is no basis for treating the less than 2%
of petitioners' coal as a separate parcel of property.

															We do not consider Justice Holmes' statement that the Kohler Act
made mining of "certain coal" commercially impracticable as
requiring us to focus on the individual pillars of coal that must
be left in place. That statement is best understood as referring to
the Pennsylvania Coal Company's assertion that it could not
undertake profitable anthracite coal mining in light of the Kohler
Act. There were strong assertions in the record to support that
conclusion. For example, the coal company claimed that one company
was "unable to operate six large collieries in the city of
Scranton, employing more than five thousand men." Motion to Advance
for Argument Page 480 U. S. 499 in Pennsylvania Coal Co. v. Mahon, O.T. 1922, No. 549,
p. 2. [ Footnote 26 ] As Judge
Adams explained:

															"At first blush, this language seems to suggest that the Court
would have found a taking no matter how little of the defendants'
coal was rendered unmineable -- that, because 'certain' coal was no
longer accessible, there had been a taking of that coal. However,
when one reads the sentence in context, it becomes clear that the
Court's concern was with whether the defendants' 'right to mine
coal . . . [could] be exercised with profit. ' 260 U.S. at 260 U. S. 414 (emphasis
added). . . . Thus, the Court's holding in Mahon must be
assumed to have been based on its understanding that the Kohler Act
rendered the business of mining coal unprofitable."

															771 F.2d at 716, n. 6.

															When the coal that must remain beneath the ground is viewed in
the context of any reasonable unit of petitioners' coal mining
operations and financial-backed expectations, it is plain that
petitioners have not come close to satisfying their burden of
proving that they have been denied the economically viable use of
that property. The record indicates that only about 75% of
petitioners' underground coal can be profitably mined in any event,
and there is no showing that petitioners' reasonable
"investment-backed expectations" have been materially affected by
the additional duty to retain the small percentage that must be
used to support the structures protected by § 4. [ Footnote 27 ] Page 480 U. S. 500 The Support Estate Pennsylvania property law is apparently unique in regarding the
support estate as a separate interest in land that can be conveyed
apart from either the mineral estate or the surface estate.
[ Footnote 28 ] Petitioners
therefore argue that, even if comparable legislation in another
State would not constitute a taking, the Subsidence Act has that
consequence because it entirely destroys the value of their unique
support estate. It is clear, however, that our takings
jurisprudence forecloses reliance on such legalistic distinctions
within a bundle of property rights. For example, in Penn
Central, the Court rejected the argument that the "air rights"
above the terminal constituted a separate segment of property for
Takings Clause purposes. 438 U.S. at 438 U. S. 130 .
Likewise, in Andrus v. Allard, we viewed the right to sell
property as just one element of the owner's property interest. 444
U.S. at 444 U. S. 65 -66.
In neither case did the result turn on whether state law allowed
the separate sale of the segment of property.

															The Court of Appeals, which is more familiar with Pennsylvania
law than we are, concluded that, as a practical matter, the support
estate is always owned by either the owner of the surface or the
owner of the minerals. It stated:

															"The support estate consists of the right to remove the strata
of coal and earth that undergird the surface or to leave those
layers intact to support the surface and prevent subsidence. These
two uses cannot coexist, and, depending upon the purposes of the
owner of the support Page 480 U. S. 501 estate, one use or the other must be chosen. If the owner is a
mine operator, the support estate is used to exploit the mineral
estate. When the right of support is held by the surface owner, its
use is to support that surface and prevent subsidence. Thus,
although Pennsylvania law does recognize the support estate as a
"separate" property interest, id. it cannot be used
profitably by one who does not also possess either the mineral
estate or the surface estate. See Montgomery, The
Development of the Right of Subjacent Support and the Third
Estate in Pennsylvania,' 25 Temple L. Q. 1, 21 (1951)." 771 F.2d at 715-716.

															Thus, in practical terms, the support estate has value only
insofar as it protects or enhances the value of the estate with
which it is associated. Its value is merely a part of the entire
bundle of rights possessed by the owner of either the coal or the
surface. Because petitioners retain the right to mine virtually all
of the coal in their mineral estates, the burden the Act places on
the support estate does not constitute a taking. Petitioners may
continue to mine coal profitably, even if they may not destroy or
damage surface structures at will in the process.

															But even if we were to accept petitioners' invitation to view
the support estate as a distinct segment of property for "takings"
purposes, they have not satisfied their heavy burden of sustaining
a facial challenge to the Act. Petitioners have acquired or
retained the support estate for a great deal of land, only part of
which is protected under the Subsidence Act, which, of course,
deals with subsidence in the immediate vicinity of certain
structures, bodies of water, and cemeteries. See n 6, supra. The record is
devoid of any evidence on what percentage of the purchased support
estates, either in the aggregate or with respect to any individual
estate, has been affected by the Act. Under these circumstances,
petitioners' Page 480 U. S. 502 facial attack under the Takings Clause must surely fail.
[ Footnote 29 ] IV In addition to their challenge under the Takings Clause,
petitioners assert that § 6 of the Subsidence Act violates the
Contracts Clause by not allowing them to hold the surface owners to
their contractual waiver of liability for surface damage. Here too,
we agree with the Court of Appeals and the District Court that the
Commonwealth's strong public interests in the legislation are more
than adequate to justify the impact of the statute on petitioners'
contractual agreements.

															Prior to the ratification of the Fourteenth Amendment, it was
Article I, § 10, that provided the primary constitutional check on
state legislative power. The first sentence of that section
provides:

															"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 or 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."

															U.S. Const., Art. I, § 10.

															Unlike other provisions in the section, it is well settled that
the prohibition against impairing the obligation of contracts is
not to be read literally. W.B. Worthen Co. v. Thomas, 292 U. S. 426 , 292 U. S. 433 (1934). The context in which the Contracts Clause is found, the
historical setting in which it was Page 480 U. S. 503 adopted, [ Footnote 30 ]
and our cases construing the Clause, indicate that its primary
focus was upon legislation that was designed to repudiate or adjust
preexisting debtor-creditor relationships that obligors were unable
to satisfy. See e.g., ibid.; Home Building & Loan Assn. v.
Blaisdell, 290 U. S. 398 (1934). Even in such cases, the Court has refused to give the
Clause a literal reading. Thus, in the landmark case of Home
Building & Loan Assn. v. Blaisdell, the Court upheld
Minnesota's statutory moratorium against home foreclosures, in
part, because the legislation was addressed to the "legitimate end"
of protecting "a basic interest of society," and not just for the
advantage of some favored group. Id. at 290 U. S.
445 .

															As Justice Stewart explained:

															"[I]t is to be accepted as a commonplace that the Contract
Clause does not operate to obliterate the police power of the
States."

															"It is the settled law of this court that the interdiction of
statutes impairing the obligation of contracts does not prevent the
State from exercising such powers as are vested in it for the
promotion of the common weal, or are necessary for the general good
of the public, though contracts previously entered into between
individuals may thereby be affected. This power, which in its
various ramifications is known as the police power, is an exercise
of the sovereign right of the Government to protect the lives,
health, morals, comfort and general welfare of the people, and is
paramount to any rights under contracts between individuals."

															" Manigault v. Springs, 199 U. S.
473 , 199 U. S. 480 . As Mr.
Justice Page 480 U. S. 504 Holmes succinctly put the matter in his opinion for the Court in Hudson Water Co. v. McCarter, 209 U. S.
349 , 209 U. S. 357 :"

															"One whose rights, such as they are, are subject to state
restriction, cannot remove them from the power of the State by
making a contract about them. The contract will carry with it the
infirmity of the subject matter." Allied Structural Steel Co. v. Spannaus, 438 U.
S. 234 , 438 U. S.
241 -242 (1978).

															In assessing the validity of petitioners' Contracts Clause claim
in this case, we begin by identifying the precise contractual right
that has been impaired and the nature of the statutory impairment.
Petitioners claim that they obtained damages waivers for a large
percentage of the land surface protected by the Subsidence Act, but
that the Act removes the surface owners' contractual obligations to
waive damages. We agree that the statute operates as "a substantial
impairment of a contractual relationship," id. at 438 U. S. 244 ,
and therefore proceed to the asserted justifications for the
impairment. [ Footnote
31 ]

															The record indicates that, since 1966, petitioners have
conducted mining operations under approximately 14,000 structures
protected by the Subsidence Act. It is not clear whether that
number includes the cemeteries and watercourses under which mining
has been conducted. In any event, it is petitioners' position that,
because they contracted Page 480 U. S. 505 with some previous owners of property generations ago, [ Footnote 32 ] they have a
constitutionally protected legal right to conduct their mining
operations in a way that would make a shambles of all those
buildings and cemeteries. As we have discussed, the Commonwealth
has a strong public interest in preventing this type of harm, the
environmental effect of which transcends any private agreement
between contracting parties.

															Of course, the finding of a significant and legitimate public
purpose is not, by itself, enough to justify the impairment of
contractual obligations. A court must also satisfy itself that the
legislature's

															"adjustment of 'the rights and responsibilities of contracting
parties [is based] upon reasonable conditions and [is] of a
character appropriate to the public purpose justifying [the
legislation's] adoption.'" Energy Reserves Group, Inc. v. Kansas Power & Light
Co., 459 U. S. 400 , 459 U. S. 412 (1983) (quoting United States Trust Co. v. New Jersey, 431 U. S. 1 , 431 U. S. 22 (1977)). But we have repeatedly held that, unless the State is
itself a contracting party, courts should " properly defer to
legislative judgment as to the necessity and reasonableness of a
particular measure.'" Energy Reserves Group, Inc., 459
U.S. at 459 U. S. 413 (quoting United States Trust Co., 431 U.S. at 431 U. S.
23 ). Page 480 U. S. 506 As we explained more fully above, the Subsidence Act plainly
survives scrutiny under our standards for evaluating impairments of
private contracts. [ Footnote
33 ] The Commonwealth has determined that, in order to deter
mining practices that could have severe effects on the surface, it
is not enough to set out guidelines and impose restrictions, but
that imposition of liability is necessary. By requiring the coal
companies either to repair the damage or to give the surface owner
funds to repair the damage, the Commonwealth accomplishes both
deterrence and restoration of the environment to its previous
condition. We refuse to second-guess the Commonwealth's
determinations that these are the most appropriate ways of dealing
with the problem. We conclude, therefore, that the impairment of
petitioners' right to enforce the damages waivers is amply
justified by the public purposes served by the Subsidence Act.

															The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] See generally Department of the Interior, Lee &
Abel, Subsidence from Underground Mining: Environmental Analysis
and Planning Considerations, Geological Survey Circular 2-12, p.
876 (1983); P. Mavrolas & M. Schechtman, Coal Mine Subsidence
6-8 (1981); Blazey & Strain, Deep Mine Subsidence -- State Law
and the Federal Response, 1 Eastern Mineral Law Foundation § 1.01,
pp. 1-5 (1980); Department of the Interior, Bureau of Mines, Moebs,
Subsidence Over Four Room-and-Pillar Sections in Southwestern
Pennsylvania, R18645 (1982); H.R.Rep. No. 95-218, p. 126
(1977).

															[ Footnote 2 ]

															"Wherever [subsidence effects] extend, damage can occur to
buildings, roads, pipelines, cables, streams, water impoundments,
wells, and aquifers. Buildings can be cracked or tilted; roads can
be lowered or cracked; streams, water impoundments, and aquifers
can all be drained into the underground excavations. Oil and gas
wells can be severed, causing their contents to migrate into
underground mines, into aquifers, and even into residential
basements. Sewage lines, gas lines, and water lines can all be
severed, as can telephone and electric cables."

															Blazey & Strain, supra, § 1.01 [2].

															[ Footnote 3 ]

															Indeed, in 1977, Congress passed the Federal Surface Mining
Control and Reclamation Act, 91 Stat. 445, 30 U.S.C. § 1201 et
seq., which includes regulation of subsidence caused by
underground coal mining. See 30 U.S.C. § 1266.

															[ Footnote 4 ]

															The two "full extraction" coal mining methods in use in western
Pennsylvania are the room and pillar method, and the longwall
method. App. 90-91.

															[ Footnote 5 ]

															For example, Pennsylvania law requires that coal beneath and
adjacent to certain large surface bodies of water be left in place.
Pa.Stat.Ann., Tit. 52, § 3101 et seq. (Purdon 1966).

															[ Footnote 6 ]

															Section 4 provides:

															"Protection of surface structures against damage from cave-in,
collapse, or subsidence"

															"In order to guard the health, safety and general welfare of the
public, no owner, operator, lessor, lessee, or general manager,
superintendent or other person in charge of or having supervision
over any bituminous coal mine shall mine bituminous coal so as to
cause damage as a result of the caving-in, collapse or subsidence
of the following surface structures in place on April 27, 1966,
overlying or in the proximity of the mine:"

															"(1) Any public building or any noncommercial structure
customarily used by the public, including but not being limited to
churches, schools, hospitals, and municipal utilities or municipal
public service operations."

															"(2) Any dwelling used for human habitation; and"

															"(3) Any cemetery or public burial ground, unless the current
owner of the structure consents and the resulting damage is fully
repaired or compensated."

															In response to the enactment in 1977 of the Federal Surface
Mining Control and Reclamation Act, 91 Stat. 445, 30 U.S.C. § 1201 et seq., and regulations promulgated by the Secretary of
the Interior in 1979, 44 Fed.Reg. 14902, the Pennsylvania DER
adopted new regulations extending the statutory protection to
additional classes of buildings and surface features.
Particularly:

															"(a)(1) public buildings and non-commercial buildings
customarily used by the public [after April 27, 1966], including
churches, schools, hospitals, courthouses, and government
offices;"

															"(4) perennial streams and impoundments of water with the
storage volume of 20 acre feet;"

															"(5) aquifers which serve as a significant source of water
supply to any public water system; and"

															"(6) coal refuse disposa[l]"

															areas. 26 Pa. Code §§ 89.145(a) and 89.146(b) (1983).

															[ Footnote 7 ]

															The regulations define the zone for which the 50% rule
applies:

															"(2) The support area shall be rectangular in shape and
determined by projecting a 15 degree angle of draw from the surface
to the coal seam, beginning 15 feet from each side of the
structure. For a structure on a surface slope of 5.0% or greater,
the support area on the downslope side of the structure shall be
extended an additional distance, determined by multiplying the
depth of the overburden by the percentage of the surface
slope."

															§ 89.146(b)(2).

															However, this 50% requirement is neither an absolute floor nor
ceiling. It may be waived by the Department upon a showing that
alternative measures will prevent subsidence damage. §
89.146(b)(5). Alternatively, more stringent measures may be
imposed, or mining may be prohibited, if it appears that leaving
50% of the coal in place will not provide adequate support. §
89.146(b)(4).

															[ Footnote 8 ]

															Although some subsidence eventually occurs over every
underground mine, the extent and timing of the subsidence depends
upon a number of factors, including the depth of the mining, the
geology of the overlying strata, the topography of the surface, and
the method of coal removal. The DER believes that the support
provided by its 50% rule will last in almost all cases for the life
of the structure being protected. Since 1966, petitioners have
mined under approximately 14,000 structures or areas protected by §
4; there have been subsidence damage claims with respect to only
300. Stipulations of Counsel 41 and 42, App. 90.

															[ Footnote 9 ]

															Petitioners also challenged various other portions of the
Subsidence Act below, see 771 F.2d 707, 718-719 (1985); 581 F.
Supp. 511 , 513, 519-520 (1984), but have not pursued these
claims in this Court.

															[ Footnote 10 ]

															"[N]or shall private property be taken for public use, without
just compensation." U.S. Const., Amdt. 5. This restriction is
applied to the States through the Fourteenth Amendment. See
Chicago B. & Q. R. Co. v. Chicago, 166 U.
S. 226 (1897).

															[ Footnote 11 ]

															The urgency with which the case was treated is evidenced by the
fact that the Court issued its decision less than a month after
oral argument, a little over a year after the test case had been
commenced.

															[ Footnote 12 ]

															"But the case has been treated as one in which the general
validity of the act should be discussed. The Attorney General of
the State, the City of Scranton, and the representatives of other
extensive interests were allowed to take part in the argument
below, and have submitted their contentions here. It seems,
therefore, to be our duty to go farther in the statement of our
opinion, in order that it may be known at once, and that further
suits should not be brought in vain."

															260 U.S. at 260 U. S.
414 .

															[ Footnote 13 ]

															"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. This we
think that we are warranted in assuming that the statute does." Id. at 260 U. S.
414 -415.

															This assumption was not unreasonable in view of the fact that
the Kohler Act may be read to prohibit mining that causes any
subsidence -- not just subsidence that results in damage to surface
structures. The record in this case indicates that subsidence will
almost always occur eventually. See n 8, supra. [ Footnote 14 ]

															The legislature also set forth rather detailed findings about
the dangers of subsidence and the need for legislation. See Pa.Stat.Ann., Tit. 52, §1406.3 (Purdon Supp.
1986).

															[ Footnote 15 ]

															"We are not disposed to displace the considered judgment of the
Court of Appeals on an issue whose resolution is so contingent upon
an analysis of state law." Runyon v. McCrary, 427 U. S. 160 , 427 U. S. 181 (1976).

															[ Footnote 16 ]

															We do not suggest that courts have "a license to judge the
effectiveness of legislation," post at 511 480 U.
S. , n. 3, or that courts are to undertake "least
restrictive alternative" analysis in deciding whether a state
regulatory scheme is designed to remedy a public harm, or is
instead intended to provide private benefits. That a land use
regulation may be somewhat overinclusive or under-inclusive is, of
course, no justification for rejecting it. See Euclid v. Ambler
Realty Co., 272 U. S. 365 , 272 U. S.
388 -389 (1926). But, on the other hand, Pennsylvania
Coal instructs courts to examine the operative provisions of a
statute, not just its stated purpose, in assessing its true nature.
In Pennsylvania Coal, that inquiry led the Court to reject
the Pennsylvania Legislature's stated purpose for the statute,
because the "extent of the public interest is shown by the statute
to be limited." 260 U.S. at 260 U. S.
413 -414. In this case, we, the Court of Appeals, and the
District Court, have conducted the same type of inquiry the Court
in Pennsylvania Coal conducted, and have determined that
the details of the statute do not call the stated public purposes
into question.

															[ Footnote 17 ]

															In his dissent, Justice Brandeis argued that the State has an
absolute right to prohibit land use that amounts to a public
nuisance. Id. at 260 U. S. 417 .
Justice Holmes' opinion for the Court did not contest that
proposition, but instead took issue with Justice Brandeis'
conclusion that the Kohler Act represented such a prohibition. Id. at 260 U. S.
413 -414.

															[ Footnote 18 ]

															Of course, the type of taking alleged is also an often critical
factor. It is well settled that a

															"'taking' may more readily be found when the interference with
property can be characterized as a physical invasion by government, see, e.g., United States v. Causby, 328 U. S.
256 (1946), than when interference arises from some
public program adjusting the benefits and burdens of economic life
to promote the common good." Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 (1978). While the Court has almost invariably found that the
permanent physical occupation of property constitutes a taking, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 458 U. S.
435 -438 (1982), the Court has repeatedly upheld
regulations that destroy or adversely affect real property
interests. See, e.g., Connolly v. Pension Benefit Guaranty
Corporation, 475 U. S. 211 (1986); Penn Central Transportation Co. v. New York City, 438 U.S. at 438 U. S. 125 ; Eastlake v. Forest City Enterprises, Inc., 426 U.
S. 668 , 426 U. S. 674 ,
n. 8 (1976); Goldblatt v. Hempstead, 369 U.
S. 590 , 369 U. S.
592 -593 (1962); Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Gorieb v. Fox, 274 U. S. 603 , 274 U. S. 608 (1927); Welch v. Swasey, 214 U. S. 91 (1909). This case, of course, involves land use regulation, not a
physical appropriation of petitioners' property.

															[ Footnote 19 ]

															See also Agins v. Tiburon, 447 U.
S. 255 , 447 U. S. 261 (1980) (the question whether a taking has occurred "necessarily
requires a weighing of private and public interests"); Webb's
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.
S. 155 , 449 U. S. 163 (1980) ("No police power justification is offered for the
deprivation").

															[ Footnote 20 ]

															The special status of this type of state action can also be
understood on the simple theory that, since no individual has a
right to use his property so as to create a nuisance or otherwise
harm others, the State has not "taken" anything when it asserts its
power to enjoin the nuisance-like activity. Cf. Sax,
Takings, Private Property and Public Rights, 81 Yale L.J. 149,
156-161 (1971); Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation" Law, 80
Harv.L.Rev. 1166, 1236-1237 (1967).

															However, as the current CHIEF JUSTICE has explained: "The
nuisance exception to the taking guarantee is not coterminous with
the police power itself." Penn Central Transportation Co., 438 U.S. at 438 U. S. 146 (REHNQUIST, J., dissenting). This is certainly the case in light of
our recent decisions holding that the "scope of the public use'
requirement of the Takings Clause is `coterminous with the scope of
a sovereign's police powers.'" See Ruckelshaus v. Monsanto
Co., 467 U. S. 986 , 467 U. S.
1014 (1984) (quoting Hawaii Housing Authority v.
Midkiff, 467 U. S. 229 , 467 U. S. 240 (1984)). See generally R. Epstein, Takings 108-112
(1986). [ Footnote 21 ]

															The Takings Clause has never been read to require the States or
the courts to calculate whether a specific individual has suffered
burdens under this generic rule in excess of the benefits received.
Not every individual gets a full dollar return in benefits for the
taxes he or she pays, yet no one suggests that an individual has a
right to compensation for the difference between taxes paid and the
dollar value of benefits received.

															[ Footnote 22 ]

															Courts have consistently held that a State need not provide
compensation when it diminishes or destroys the value of property
by stopping illegal activity or abating a public nuisance. See
Nassr v. Commonwealth, 394 Mass. 767, 477
N.E.2d 987 (1985) (hazardous waste operation); Kuban v.
McGimsey, 96 Nev. 105, 605 P.2d 623 (1980) (brothel); MacLeod v. Takoma Park, 257 Md. 477, 263
A.2d 581 (1970) (unsafe building); Eno v. Burlington, 125
Vt. 8, 209 A.2d 499 (1965) (fire and health hazard); Pompano Horse Club, Inc. v.
State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (1927) (gambling
facility); People ex rel. Thrasher v. Smith, 275 Ill. 256,
114 N.E. 31 (1916) ("bawdyhouse"). It is hard to imagine a
different rule that would be consistent with the maxim " sic
utere tuo ut alienum non laedas " (use your own property in
such manner as not to injure that of another). See generally
Empire State Insurance Co. v. Chafetz, 278 F.2d 41 (CA5 1960).
As Professor Epstein has recently commented:

															"The issue of compensation cannot arise until the question of
justification has been disposed of. In the typical nuisance
prevention case, this question is resolved against the
claimant."

															Epstein, supra, at 199.

															[ Footnote 23 ]

															The certified questions asked whether §§ 4, 5, or 6 of the
Subsidence Act, and various regulations:

															"1. Violate the Rule of the Mahon Decision[,]"

															"2. Constitute Per Se Takings,"

															"3. Violate Article I, § 10 of the Constitution of the United
States."

															App. 12.

															The Court of Appeals recognized the limited nature of its
inquiry, pointing out that it was passing only on the facial
challenge, and that the "as-applied challenge remains for
disposition in the district court." 771 F.2d at 710, n. 3.

															[ Footnote 24 ]

															The percentage of the total that must be left in place under § 4
is not the same for every mine, because of the wide variation in
the extent of surface development in different areas. For 7 of the
13 mines identified in the record, 1% or less of the coal must
remain in place; for 3 others, less than 3% must be left in place;
for the other 3, the percentages are 4%, 7.8%, and 9.4%. See App. 284.

															[ Footnote 25 ] See also Sax, Takings and the Police Power, 74 Yale
L.J. 36, 60 (1964); Rose, Mahon Reconstructed: Why the
Takings Issue is Still a Muddle, 57 S.Cal.L.Rev. 561, 566-567
(1984).

															[ Footnote 26 ]

															Of course, the company also argued that the Subsidence Act made
it commercially impracticable to mine the very coal that had to be
left in place. Although they could have constructed pillars for
support in place of the coal, the cost of the artificial pillars
would have far exceeded the value of the coal. See Brief
for Plaintiff in Error in Pennsylvania Coal v. Mahon, O.T.
1922, No. 549, pp. 7-9.

															[ Footnote 27 ]

															We do not suggest that the State may physically appropriate
relatively small amounts of private property for its own use
without paying just compensation. The question here is whether
there has been any taking at all when no coal has been physically
appropriated, and the regulatory program places a burden on the use
of only a small fraction of the property that is subjected to
regulation. See generally n 18, supra. [ Footnote 28 ] See Charnetski v. Miners Mills Coal Mining Co., 270 Pa.
459, 113 A. 683 (1921); Penman v. Jones, 256 Pa. 416
(1917); Captline v. County of Allegheny, 74 Pa.Commw. 86,
459 A.2d 1298 (1983), cert. denied, 466 U.S. 904 (1984); see generally Montgomery, The Development of the Right of
Subjacent Support and the "Third Estate" in Pennsylvania, 25 Temple
L.Q. 1 (1951).

															[ Footnote 29 ]

															Another unanswered question about the level of diminution
involves the District Court's observation that the support estate
carries with it far more than the right to cause subsidence damage
without liability. See 681 F. Supp. at 619. There is no
record as to what value these other rights have, and it is thus
impossible to say whether the regulation of subsidence damage under
certain structures, and the imposition of liability for damage to
certain structures, denies petitioners the economically viable use
of the support estate, even if viewed as a distinct segment of
property.

															[ Footnote 30 ]

															"It was made part of the Constitution to remedy a particular
social evil -- the state legislative practice of enacting laws to
relieve individuals of their obligations under certain contracts --
and thus was intended to prohibit States from adopting 'as [their]
policy the repudiation of debts or the destruction of contracts or
the denial of means to enforce them,' Home Building & Loan
Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S.
439 (1934)." Allied Structural Steel Co. v. Spannaus, 438 U.
S. 234 , 438 U. S. 256 (1978) (BRENNAN, J, dissenting).

															[ Footnote 31 ]

															As we have mentioned above, we do not know what percentage of
petitioners' acquired support estate is, in fact, restricted under
the Subsidence Act. See supra at 480 U. S.
501 -502. Moreover, we have no basis on which to conclude
just how substantial a part of the support estate the waiver of
liability is. See id. at n 29. These inquiries are both essential to determine the
"severity of the impairment," which in turn affects "the level of
scrutiny to which the legislation will be affected." Energy
Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 , 459 U. S. 411 (1983). While these dearths in the record might be critical in some
cases, they are not essential to our discussion here, because the
Subsidence Act withstands scrutiny even if it is assumed that it
constitutes a total impairment.

															[ Footnote 32 ]

															Most of these waivers were obtained over 70 years ago, as part
of the support estate which was itself obtained or retained as an
incident to the acquisition or retention of the right to mine large
quantities of underground coal. No question of enforcement of such
a waiver against the original covenantor is presented; rather,
petitioners claim a right to enforce the waivers against subsequent
owners of the surface. This claim is apparently supported by
Pennsylvania precedent holding that these waivers run with the
land. See Kormuth v. United States Steel Co., 379 Pa. 366,
108 A.2d 907 (1954); Scranton v. Phillips, 94 Pa. 16, 22
(1880). That the Pennsylvania courts might have had, or may in the
future have, a valid basis for refusing to enforce these perpetual
covenants against subsequent owners of the surface rights is not
necessarily a sufficient reason for concluding that the legislative
impairment of the contracts is permissible. See Tidal Oil Co.
v. Flanagan, 263 U. S. 444 (1924); Central Land Co. v. Laidley, 169 U.
S. 103 (1895) (distinguishing legislative and judicial
action).

															[ Footnote 33 ]

															Because petitioners did not raise the issue before the District
Court, the Court of Appeals rejected their attempt to argue on
appeal that the Subsidence Act also affects contracts to which the
Commonwealth is a party. See 771 F.2d at 718, n. 8.

															CHIEF JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE
O'CONNOR, and JUSTICE SCALIA join, dissenting.

															More than 50 years ago, this Court determined the
constitutionality of Pennsylvania's Kohler Act as it affected the
property interests of coal mine operators. Pennsylvania Coal
Co. v. Mahon, 260 U. S. 393 (1922). The Bituminous Mine Subsidence and Land Conservation Act
approved today effects an interference with such interests in a
strikingly similar manner. The Court finds at least two reasons why
this case is different. First, we are told, "the character of the
governmental action involved here leans heavily against finding a
taking." Ante at 480 U. S. 485 .
Second, the Court concludes that the Subsidence Act neither "makes
it impossible for petitioners Page 480 U. S. 507 to profitably engage in their business," nor involves "undue
interference with [petitioners'] investment-backed expectations." Ibid. Neither of these conclusions persuades me that this
case is different, and I believe that the Subsidence Act works a
taking of petitioners' property interests. I therefore dissent. I In apparent recognition of the obstacles presented by Pennsylvania Coal to the decision it reaches, the Court
attempts to undermine the authority of Justice Holmes' opinion as
to the validity of the Kohler Act, labeling it
"uncharacteristically . . . advisory." Ante at 480 U. S. 484 .
I would not so readily dismiss the precedential value of this
opinion. There is, to be sure, some language in the case suggesting
that it could have been decided simply by addressing the particular
application of the Kohler Act at issue in the case. See, e.g.,
Pennsylvania Coal, supra, at 260 U. S. 414 ("If we were called upon to deal with the plaintiffs' position
alone, we should think it clear that the statute does not disclose
a public interest sufficient to warrant so extensive a destruction
of the defendant's constitutionally protected rights"). The Court,
however, found that the validity of the Act itself was properly
drawn into question: "[T]he case has been treated as one in which
the general validity of the [Kohler] act should be discussed." Ibid. [ Footnote 2/1 ] The
coal company clearly had an interest in obtaining a determination
that the Kohler Act was unenforceable if it worked a taking without
providing for compensation. For Page 480 U. S. 508 these reasons, I would not find the opinion of the Court in Pennsylvania Coal advisory in any respect.

															The Court's implication to the contrary is particularly
disturbing in this context, because the holding in Pennsylvania
Coal today discounted by the Court has for 65 years been the
foundation of our "regulatory takings" jurisprudence. See Penn
Central Transportation Co. v. New York City, 438 U.
S. 104 , 438 U. S. 127 (1978); D. Hagman & J. Juergensmeyer, Urban Planning and Land
Development Control Law 319 (2d ed. 1986) (" Pennsylvania
Coal was a monumental decision which remains a vital element
in contemporary taking law"). We have, for example, frequently
relied on the admonition that, "if regulation goes too far, it will
be recognized as a taking." Pennsylvania Coal, supra, at 260 U. S. 415 . See, e.g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 477 U. S. 348 (1986); Ruckelshaus v. Monsanto Co., 467 U.
S. 986 , 467 U. S.
1003 (1984); PruneYard Shopping Center v.
Robins, 447 U. S. 74 , 447 U. S. 83 (1980); Goldblatt v. Hempstead, 369 U.
S. 590 , 369 U. S. 594 (1962); United States v. Central Eureka Mining Co., 357 U. S. 155 , 357 U. S. 168 (1958). Thus, even were I willing to assume that the opinion in Pennsylvania Coal, standing alone, is reasonably subject
to an interpretation that renders more than half the discussion
"advisory," I would have no doubt that our repeated reliance on
that opinion establishes it as a cornerstone of the jurisprudence
of the Fifth Amendment's Just Compensation Clause.

															I accordingly approach this case with greater deference to the
language, as well as the holding, of Pennsylvania Coal than does the Court. Admittedly, questions arising under the Just
Compensation Clause rest on ad hoc factual inquiries, and
must be decided on the facts and circumstances in each case. See Penn Central Transportation Co. v. New York City,
supra, at 438 U. S. 124 ; United States v. Central Eureka Mining Co., supra, at 357 U. S. 168 .
Examination of the relevant factors presented here convinces me
that the differences between Page 480 U. S. 509 them and those in Pennsylvania Coal verge on the
trivial. II The Court first determines that this case is different from Pennsylvania Coal because "the Commonwealth of
Pennsylvania has acted to arrest what it perceives to be a
significant threat to the common welfare." Ante at 480 U. S. 485 .
In my view, reliance on this factor represents both a misreading of Pennsylvania Coal and a misunderstanding of our
precedents. A The Court opines that the decision in Pennsylvania Coal rested on the fact that the Kohler Act was "enacted solely for the
benefit of private parties," ante at 480 U. S. 486 ,
and "served only private interests." Ante at 480 U. S. 484 .
A review of the Kohler Act shows that these statements are
incorrect. The Pennsylvania Legislature passed the statute "as
remedial legislation, designed to cure existing evils and abuses. " Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 495, 118 A.
491, 492 (1922) (quoting the Act). These were public "evils and
abuses," identified in the preamble as

															"wrecked and dangerous streets and highways, collapsed public
buildings, churches, schools, factories, streets, and private
dwellings, broken gas, water and sewer systems, the loss of human
life. . . ." Id. at 496, 118 A. at 493. [ Footnote 2/2 ] The Pennsylvania Supreme Court recognized
that these concerns were "such as to create an emergency, properly
warranting the exercise of the police power. . . ." Id. at
497, 118 A. at 493. There can be Page 480 U. S. 510 no doubt that the Kohler Act was intended to serve public
interests.

															Though several aspects of the Kohler Act limited its protection
of these interests, see Pennsylvania Coal, 260 U.S. at 260 U. S. 414 ,
this Court did not ignore the public interests served by the Act.
When considering the protection of the "single private house" owned
by the Mahons, the Court noted that "[n]o doubt there is a public interest even in this." Id. at 260 U. S. 413 (emphasis added). It recognized that the Act "affects the mining of
coal under streets or cities in places where the right to mine such
coal has been reserved." Id. at 260 U. S. 414 . See also id. at 260 U. S. 416 ("We assume . . . that the statute was passed upon the conviction
that an exigency existed that would warrant it, and we assume that
an exigency exists that would warrant the exercise of eminent
domain"). The strong public interest in the stability of streets
and cities, however, was insufficient "to warrant achieving the
desire by a shorter cut than the constitutional way of paying for
the change." Ibid. Thus, the Court made clear that the
mere existence of a public purpose was insufficient to release the
government from the compensation requirement:

															"The protection of private property in the Fifth Amendment
presupposes that it is wanted for public use, but provides that it
shall not be taken for such use without compensation." Id. at 260 U. S.
415 .

															The Subsidence Act rests on similar public purposes. These
purposes were clearly stated by the legislature:

															"[T]o aid in the protection of the safety of the public, to
enhance the value of [surface area] lands for taxation, to aid in
the preservation of surface water drainage and public water
supplies and generally to improve the use and enjoyment of such
lands. . . ."

															Pa.Stat.Ann., Title 52, § 1406.2 (Purdon Supp. 1986). The Act's
declaration of policy states that mine subsidence

															"has seriously impeded land development . . . has caused a very
clear and present danger to the health, safety and welfare of the
people of Pennsylvania [and] erodes the Page 480 U. S. 511 tax base of the affected municipalities."

															§§ 1406.3(2), (3), (4). The legislature determined that the
prevention of subsidence would protect surface structures, advance
the economic future and wellbeing of Pennsylvania, and ensure the
safety and welfare of the Commonwealth's residents. Ibid. Thus, it is clear that the Court has severely understated the
similarity of purpose between the Subsidence Act and the Kohler
Act. The public purposes in this case are not sufficient to
distinguish it from Pennsylvania Coal. [ Footnote 2/3 ] B The similarity of the public purpose of the present Act to that
in Pennsylvania Coal does not resolve the question whether
a taking has occurred; the existence of such a public purpose is
merely a necessary prerequisite to the government's exercise of its
taking power. See Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S.
239 -243, 467 U. S. 245 (1984); Berman v. Parker, 348 U. S.
26 , 348 U. S. 32 -33
(1954). The nature of these purposes may be relevant, for we have
recognized that a taking does not occur where the government
exercises its unquestioned authority to prevent a property owner
from using his property to injure others without having to
compensate the value of the forbidden use. See Goldblatt
v. Hempstead , Page 480 U. S. 512 369 U. S. 590 (1962); Hadacheck v. Sebastian, 239 U.
S. 394 (1915); Mugler v. Kansas, 123 U.
S. 623 (1887). See generally Penn Central
Transportation Co. v. New York City, 438 U.S. at 438 U. S.
144 -146 (REHNQUIST, J., dissenting). The Court today
indicates that this "nuisance exception" alone might support its
conclusion that no taking has occurred. Despite the Court's
implication to the contrary, see ante at 480 U. S.
485 -486, and n. 15, the legitimacy of this purpose is a
question of federal, rather than state, law, subject to independent
scrutiny by this Court. This statute is not the type of regulation
that our precedents have held to be within the "nuisance exception"
to takings analysis.

															The ease with which the Court moves from the recognition of
public interests to the assertion that the activity here regulated
is "akin to a public nuisance" suggests an exception far wider than
recognized in our previous cases. "The nuisance exception to the
taking guarantee," however, "is not coterminous with the police
power itself," Penn Central Transportation, supra, at 438 U. S. 145 (REHNQUIST, J., dissenting), but is a narrow exception allowing the
government to prevent "a misuse or illegal use." Curtin v.
Benson, 222 U. S. 78 , 222 U. S. 86 (1911). It is not intended to allow "the prevention of a legal and
essential use, an attribute of its ownership." Ibid. The narrow nature of this exception is compelled by the concerns
underlying the Fifth Amendment. Though, as the Court recognizes, ante at 480 U. S.
491 -492, the Fifth Amendment does not prevent actions
that secure a "reciprocity of advantage," Pennsylvania Coal,
supra, at 260 U. S. 415 ,
it is designed to prevent

															"the public from loading upon one individual more than his just
share of the burdens of government, and says that, when he
surrenders to the public something more and different from that
which is exacted.from other members of the public, a full and just
equivalent shall be returned to him." Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 325 (1893). See also Penn Central Transportation Co. v. New York
City, supra, at 438 U. S.
123 -125; Armstrong
v. Page 480 U. S. 513 United States, 364 U. S. 40 , 364 U. S. 49 (1960). A broad exception to the operation of the Just Compensation
Clause based on the exercise of multifaceted health, welfare, and
safety regulations would surely allow government much greater
authority than we have recognized to impose societal burdens on
individual landowners, for nearly every action the government takes
is intended to secure for the public an extra measure of "health,
safety, and welfare."

															Thus, our cases applying the "nuisance" rationale have involved
at least two narrowing principles. First, nuisance regulations
exempted from the Fifth Amendment have rested on discrete and
narrow purposes. See Goldblatt v. Hempstead, supra; Hadacheck
v. Sebastian, supra; Mugler v. Kansas, supra. The Subsidence
Act, however, is much more than a nuisance statute. The central
purposes of the Act, though including public safety, reflect a
concern for preservation of buildings, economic development, and
maintenance of property values to sustain the Commonwealth's tax
base. We should hesitate to allow a regulation based on essentially
economic concerns to be insulated from the dictates of the Fifth
Amendment by labeling it nuisance regulation.

															Second, and more significantly, our cases have never applied the
nuisance exception to allow complete extinction of the value of a
parcel of property. Though nuisance regulations have been sustained
despite a substantial reduction in value, we have not accepted the
proposition that the State may completely extinguish a property
interest or prohibit all use without providing compensation. Thus,
in Mugler v. Kansas, supra, the prohibition on manufacture
and sale of intoxicating liquors made the distiller's brewery "of
little value," but did not completely extinguish the value of the
building. Similarly, in Miller v. Schoene, 276 U.
S. 272 (1928), the individual forced to cut down his
cedar trees nevertheless was able "to use the felled trees." Penn Central Transportation Co. v. New York City, supra, at 438 U. S. 126 .
The Page 480 U. S. 514 restriction on surface mining upheld in Goldblatt v.
Hempstead, supra, may have prohibited "a beneficial use" of
the property, but did not reduce the value of the lot in question.
369 U.S. at 593, 369 U. S. 594 .
In none of these cases did the regulation "destroy essential uses
of private property." Curtin v. Benson, supra, at 222 U. S.
86 .

															Here, petitioners' interests in particular coal deposits have
been completely destroyed. By requiring that defined seams of coal
remain in the ground, see ante at 480 U. S.
476 -477, and n. 7, § 4 of the Subsidence Act has
extinguished any interest one might want to acquire in this
property, for "'the right to coal consists in the right to mine
it.'" Pennsylvania Coal, 260 U.S. at 260 U. S. 414 ,
quoting Commonwealth ex rel. Keator v. Clearview Coal Co., 256 Pa. 328, 331, 100 A. 820 (1917). Application of the nuisance
exception in these circumstances would allow the State not merely
to forbid one "particular use" of property with many uses, but to
extinguish all beneficial use of petitioners' property. [ Footnote 2/4 ]

															Though suggesting that the purposes alone are sufficient to
uphold the Act, the Court avoids reliance on the nuisance exception
by finding that the Subsidence Act does not impair petitioners'
investment-backed expectations or ability to profitably operate
their businesses. This conclusion follows mainly from the Court's
broad definition of the "relevant mass of property," ante at 480 U. S. 497 ,
which allows it to ascribe to the Subsidence Act a less pernicious
effect on the interests of the property owner. The need to consider
the effect of regulation on some identifiable segment of property
makes all-important the admittedly difficult task of defining the
relevant Page 480 U. S. 515 parcel. See Penn Central Transportation Co. v. New York
City, 438 U.S. at 438 U. S. 149 ,
n. 13 (REHNQUIST, J., dissenting). For the reasons explained below,
I do not believe that the Court's opinion adequately performs this
task. III The Pennsylvania Coal Court found it sufficient that
the Kohler Act rendered it "commercially impracticable to mine
certain coal." 260 U.S. at 260 U. S. 414 . The Court, ante at 480 U. S. 498 ,
observes that this language is best understood as a conclusion that
certain coal mines could not be operated at a profit. Petitioners
have not at this stage of the litigation rested their claim on
similar proof; they have not "claimed that their mining operations,
or even any specific mines, have been unprofitable since the
Subsidence Act was passed." Ante at 480 U. S. 496 .
The parties have, however, stipulated for purposes of this facial
challenge that the Subsidence Act requires petitioners to leave in
the ground 27 million tons of coal, without compensation therefor.
Petitioners also claim that the Act extinguishes their purchased
interests in support estates which allow them to mine the coal
without liability for subsidence. We are thus asked to consider
whether these restrictions are such as to constitute a taking. A The Court's conclusion that the restriction on particular coal
does not work a taking is primarily the result of its view that the
27 million tons of coal in the ground "do not constitute a separate
segment of property for takings law purposes." Ante at 480 U. S. 498 .
This conclusion cannot be based on the view that the interests are
too insignificant to warrant protection by the Fifth Amendment, far
it is beyond cavil that government appropriation of "relatively
small amounts of private property for its own use" requires just
compensation. Ante at 480 U. S. 499 ,
n. 27. Instead, the Court's refusal to recognize the coal in the
ground as a separate segment of property for takings purposes is
based on the fact that the Page 480 U. S. 516 alleged taking is "regulatory," rather than a physical,
intrusion. See ante at 480 U. S.
488 -489, n. 18. On the facts of this case, I cannot see
how the label placed on the government's action is relevant to
consideration of its impact on property rights.

															Our decisions establish that governmental action short of
physical invasion may constitute a taking because such regulatory
action might result in "as complete [a loss] as if the [government]
had entered upon the surface of the land and taken exclusive
possession of it." United States v. Causby, 328 U.
S. 256 , 328 U. S. 261 (1946). Though the government's direct benefit may vary depending
upon the nature of its action, the question is evaluated from the
perspective of the property holder's loss, rather than the
government's gain. See ibid.; United States v. General Motors
Corp., 323 U. S. 373 , 323 U. S. 378 (1945); Boston Chamber of Commerce v. Boston, 217 U.
S. 189 , 217 U. S. 195 (1910). Our observation that "[a] taking' may more readily be
found when the interference with property can be characterized as a
physical invasion by government," Penn Central Transportation
Co. v. New York City, supra, at 438 U. S. 124 ,
was not intended to alter this perspective merely because the
claimed taking is by regulation. Instead, we have recognized that
regulations -- unlike physical invasions -- do not typically
extinguish the "full bundle" of rights in a particular piece of
property. In Andrus v. Allard, 444 U. S.
51 , 444 U. S. 66 (1979), for example, we found it crucial that a prohibition on the
sale of avian artifacts destroyed only "one `strand' of the bundle"
of property rights, "because the aggregate must be viewed in its
entirety." This characteristic of regulations frequently makes
unclear the breadth of their impact on identifiable segments of
property, and has required that we evaluate the effects in light of
the "several factors" enumerated in Penn Central Transportation
Co.: "The economic impact of the regulation on the claimant, . . .
the extent to which the regulation has interfered with
investment-backed expectations, [and] the character of the
governmental action."

															438 U.S. at 438 U. S.
124 . Page 480 U. S. 517 No one, however, would find any need to employ these analytical
tools where the government has physically taken an identifiable
segment of property. Physical appropriation by the government
leaves no doubt that it has in fact deprived the owner of all uses
of the land. Similarly, there is no need for further analysis where
the government, by regulation, extinguishes the whole bundle of
rights in an identifiable segment of property, for the effect of
this action on the holder of the property is indistinguishable from
the effect of a physical taking. [ Footnote 2/5 ] Thus, it is clear our decision in Andrus v. Allard, supra, would have been different if the
Government had confiscated the avian artifacts. In my view, a
different result would also follow if the Government simply
prohibited every use of that property, for the owner would still
have been "deprive[d] of all or most of his interest in the subject
matter." United States v. General Motors Corp., supra, at 323 U. S.
378 .

															In this case, enforcement of the Subsidence Act and its
regulations will require petitioners to leave approximately 27
million tons of coal in place. There is no question that this coal
is an identifiable and separable property interest. Unlike many
property interests, the "bundle" of rights in this coal is sparse.
" For practical purposes, the right to coal consists in the
right to mine it.'" Pennsylvania Coal, 260 Page 480 U. S. 518 U.S. at 260 U. S. 414 ,
quoting Commonwealth ex rel. Keater v. Clearview Coal Co., 256 Pa. at 331, 100 A. at 820. From the relevant perspective --
that of the property owners -- this interest has been destroyed
every bit as much as if the government had proceeded to mine the
coal for its own use. The regulation, then, does not merely inhibit
one strand in the bundle, cf. Andrus v. Allard, supra, but
instead destroys completely any interest in a segment of property.
In these circumstances, I think it unnecessary to consider whether
petitioners may operate individual mines or their overall mining
operations profitably, for they have been denied all use of 27
million tons of coal. I would hold that § 4 of the Subsidence Act
works a taking of these property interests. B Petitioners also claim that the Subsidence Act effects a taking
of their support estate. Under Pennsylvania law, the support
estate, the surface estate, and the mineral estate are "three
distinct estates in land which can be held in fee simple separate
and distinct from each other. . . . " Captline v. County of
Allegheny, 74 Pa. Commw. 85, 91, 459 A.2d 1298, 1301 (1983), cert. denied, 466 U.S. 904 (1984). In refusing to consider
the effect of the Subsidence Act on this property interest alone,
the Court dismisses this feature of Pennsylvania property law as
simply a "legalistic distinctio[n] within a bundle of property
rights." Ante at 480 U. S. 500 .
"Its value," the Court informs us, "is merely a part of the entire
bundle of rights possessed by the owner of either the coal or the
surface." Ante at 480 U. S. 501 . See also 771 F.2d 707, 716
(1985) ("To focus upon the support estate separately . . . would
serve little purpose"). This view of the support estate allows the
Court to conclude that its destruction is merely the destruction of
one "strand" in petitioners' bundle of property rights, not
significant enough in the overall bundle to work a taking.

															Contrary to the Court's approach today, we have evaluated
takings claims by reference to the units of property defined Page 480 U. S. 519 by state law. In Ruckleshaus v. Monsanto Co., for
example, we determined that certain "health, safety, and
environmental data" was "cognizable as a trade secret property
right under Missouri law," 467 U.S. at 467 U. S.
1003 , and proceeded to evaluate the effects of
governmental action on this state-defined property right. [ Footnote 2/6 ] Reliance on state law is
necessitated by the fact that

															"'[p]roperty interests . . . are not created by the
Constitution. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law.'" Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 449 U. S. 161 (1980), quoting Board of Regents v. Roth, 408 U.
S. 564 , 408 U. S. 577 (1972). In reality, the Court's decision today cannot reject this
necessary reliance on state law. Rather, it simply rejects the
support estate as the relevant segment of property and evaluates
the impact of the Subsidence Act by reference to some broader, yet
undefined segment of property presumably recognized by state
law.

															I see no reason for refusing to evaluate the impact of the
Subsidence Act on the support estate alone, for Pennsylvania has
clearly defined it as a separate estate in property. The Court
suggests that the practical significance of this estate is limited,
because its value "is merely part of the bundle of rights possessed
by the owner of either the coal or the surface." Ante at 480 U. S. 501 .
Though this may accurately describe the usual state of affairs, I
do not understand the Court to mean that one holding the support
estate alone would find it worthless, for surely the owners of the
mineral or surface estates Page 480 U. S. 520 would be willing buyers of this interest. [ Footnote 2/7 ] Nor does the Court suggest that the owner
of both the mineral and support estates finds his separate interest
in support to be without value. In these circumstances, where the
estate defined by state law is both severable and of value in its
own right, it is appropriate to consider the effect of regulation
on that particular property interest.

															When held by owners of the mineral estate, the support estate
"consists of the right to remove the strata of coal and earth that
undergird the surface. . . ." 771 F.2d at 715. Purchase of this
right, therefore, shifts the risk of subsidence to the surface
owner. Section 6 of the Subsidence Act, by making the coal mine
operator strictly liable for any damage to surface structures
caused by subsidence, purports to place this risk on the holder of
the mineral estate regardless of whether the holder also owns the
support estate. Operation of this provision extinguishes
petitioners' interests in their support estates, making worthless
what they purchased as a separate right under Pennsylvania law.
Like the restriction on mining particular coal, this complete
interference with a property right extinguishes its value, and must
be accompanied by just compensation. [ Footnote 2/8 ] IV In sum, I would hold that Pennsylvania's Bituminous Mine
Subsidence and Land Conservation Act effects a taking of
petitioners' property without providing just compensation.
Specifically, the Act works to extinguish petitioners' interest Page 480 U. S. 521 in at least 27 million tons of coal by requiring that coal to be
left in the ground, and destroys their purchased support estates by
returning to them financial liability for subsidence. I
respectfully dissent from the Court's decision to the contrary.
[ Footnote 2/9 ]

															[ Footnote 2/1 ]

															The Pennsylvania Supreme Court, in the decision under review,
had also determined that the case called for "consideration . . .
of the constitutionality of the act itself." Mahon v.
Pennsylvania Coal Co., 274 Pa. 489, 494, 118 A. 491, 492
(1922). Before this Court, the coal company persisted in its claim
that the Pennsylvania statute took its property without just
compensation. See Brief for Plaintiff in Error in Pennsylvania Coal Co. v. Mahon, O.T. 1922, No. 549, pp.
7-8, 16, 19-21, 28-33; Brief for Defendants in Error in Pennsylvania Coal Co. v. Mahon, O.T. 1922, No. 549, p.
73.

															[ Footnote 2/2 ]

															That these were public "evils and abuses" is further illustrated
by the coverage of the Kohler Act, which regulated mining under
"any public building or any structure customarily used by the
public," including churches, schools, hospitals, theaters, hotels,
and railroad stations. Mahon v. Pennsylvania Coal, supra, at 495, 118 A. at 492. Protected areas also included streets,
roads, bridges, or "any other public passageway, dedicated to
public use or habitually used by the public," as well as public
utility structures, private homes, workplaces, and cemeteries. Ibid. [ Footnote 2/3 ]

															The Court notes that the particulars of the Subsidence Act
better serve these public purposes than did the Kohler Act. Ante at 480 U. S. 486 .
This may well be true, but our inquiry into legislative purpose is
not intended as a license to judge the effectiveness of
legislation. When considering the Fifth Amendment issues presented
by Hawaii's Land Reform Act, we noted that the Act,

															"like any other, may not be successful in achieving its intended
goals. But"

															"whether in fact the provisions will accomplish the
objectives is not the question: the [constitutional requirement] is
satisfied if . . . the . . . [State] Legislature rationally
could have believed that the [Act] would promote its
objective." Hawaii Housing Authority v. Midkiff, 467 U.
S. 229 , 467 U. S. 242 (1984), quoting Western & Southern Life Insurance Co. v.
State Bd. of Equalization, 451 U. S. 648 , 451 U. S.
671 -672 (1981). Conversely, our cases have never found
it sufficient that legislation efficiently achieves its desired
objectives to hold that the compensation required by the Fifth
Amendment is unavailable.

															[ Footnote 2/4 ] Plymouth Coal Co. v. Pennsylvania, 232 U.
S. 531 (1914), did not go this far. Though the Court in
that case upheld a statute requiring mine operators to leave
certain amounts of coal in their mines, examination of the opinion
in Plymouth Coal reveals that the statute was not
challenged as a taking for which compensation was due. Instead, the
coal company complained that the statutory provisions for defining
the width of required pillars of coal were constitutionally
deficient as a matter of procedural due process.

															[ Footnote 2/5 ]

															There is admittedly some language in Penn Central
Transportation Co. v. New York City, 438 U.
S. 104 , 438 U. S.
130 -131 (1978), that suggests a contrary analysis:

															"'Taking' jurisprudence does not divide a single parcel into
discrete segments and attempt to determine whether rights in a
particular segment have been entirely abrogated. In deciding
whether a particular governmental action has effected a taking,
this Court focuses, rather, both on the character of the action and
on the nature and extent of the interference with rights in the
parcel as a whole."

															The Court gave no guidance on how one is to distinguish a
"discrete segment" from a "single parcel." It was not clear,
moreover, that the air rights at issue in Penn Central were entirely eliminated by the operation of New York City's
Landmark Preservation Law, for, as the Court noted, "it simply
cannot be maintained, on this record, that appellants have been
prohibited from occupying any portion of the airspace above the
Terminal." Id. at 438 U. S. 136 .

															[ Footnote 2/6 ]

															Indeed, we rejected the claim that the Supremacy Clause allowed
Congress to dictate that the effect of its regulation

															"not vary depending on the property law of the State in which
the submitter [of trade secret information] is located. . . . If
Congress can 'preempt' state property law in the manner advocated,
. . . then the Taking Clause has lost all vitality." Ruckleshaus v. Monsanto Co., 467 U.S. at 467 U. S.
1012 .

															[ Footnote 2/7 ]

															It is clear that, under Pennsylvania law, "one person may own
the coal, another the surface, and the third the right of support." Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32 A.2d
227, 234-235 (1943).

															[ Footnote 2/8 ]

															It is therefore irrelevant that petitioners have not presented
evidence of "what percentage of the purchased support estates,
either in the aggregate or with respect to any individual estate,
has been affected by the Act." Ante at 480 U. S. 501 .
There is no doubt that the Act extinguishes support estates.
Because it fails to provide compensation for this taking, the Act
violates the dictates of the Fifth Amendment.

															[ Footnote 2/9 ]

															Because I would find § 6 of the Subsidence Act unconstitutional
under the Fifth Amendment, I would not reach the Contracts Clause
issue addressed by the Court, ante at 480 U. S.
502 -506.