MILLER, Judge.
This is a consolidated case involving the inter-relationship of surface coal mining and ground water rights in Indiana. The common question in both cases is whether the Department of Natural Resources by the Natural Resources Commission (collectively-the Department) has the authority under the Indiana Surface Mining Control and Reclamation Act (I-SMCRA)
to affect in any way existing water rights. After first deciding that I-SMCRA preserved state water rights and therefore could not impact existing common law water rights, the Department changed its mind and attempted to regulate the use of ground water by surface mines so that such use would not result in damage to property located outside the surface mine area. After an exhaustive series of administrative hearings followed by judicial review, the trial court held that the Department had it right the first time-nothing in I-SMCRA can affect in any way existing common law water rights. Therefore, the trial court found that the Department had exceeded its authority by issuing orders that interfered with the common law water rights of the coal miners to make any non-malicious use of ground water on their premises.
We agree with the trial court and affirm.
FACTS AND PROCEDURAL HISTORY
Surface coal mining permits in Indiana are issued by the Department pursuant to provisions of I-SMCRA, Indiana's counterpart to the Federal Surface Mining Control and Reclamation Act of 1977 (F-SMCRA),
and the regulations implementing I-SMCRA set forth at 310 Ind. Administrative Code 12. Before beginning surface coal mining, an operator is required to obtain a permit from the Department. These permits are approved only after intense seruti-ny of the proposed mining operations and the anticipated effects related to them by the Department's technical experts.
Appellee AMAX Coal Company (AMAX) sought a permit to extend its Minnehaha Mine, Cass Pit, a surface mine in Sullivan County to mine a new area of what is known locally as the No. 7 coal seam.
Appellee B & LS Contracting (B & LS) had been conducting surface mining operations at the Hornet Mine in Clay County since a permit was issued in 1989 in order to recover coal owned by Shand Mining, Inc.
AMAX's permit application described its proposed operations, which included pumping water on its lands from the abandoned mines in the No. 6 coal seam, to prevent flooding in its mining pit. Appellant Jack L. Jarrett (Jarrett), an adjacent surface landowner, opposed the operation arguing
that the removal of water and/or lowering of the existing water head (pressure) in the No. 6 seam abandoned mines might cause subsidence on his land.
Jarrett argued that the water was "substituted support" which replaced the natural support removed by the mining of the No. 6 coal. The permit was approved in May, 1989, except for, inter alia, the pumping of water from the No. 6 coal. The Department added what is now known as "Condition 12" to the permit. Condition 12 prohibited additional depressurization wells in the permit amendment area "until sufficient detail is added to the statement of probable hy-drologic consequences to determine the effects that dewatering may have on potential subsidences both with the permit and adjacent off site areas." See R. 1683, Natural Resources Commission et al. v. Amax Coal. AMAX sought administrative review challenging the Department's jurisdiction and authority to impose Condition 12. The Administrative Law Judge overruled AMAX's objections to Condition 12. That ruling was in turn affirmed by the Department which then remanded the remaining questions regarding the permit to the Administrative Law Judge for further proceedings.
The trial court held that the imposition of Condition 12 on the Cass permit was unlawful and in excess of the Department's authority. The court found that the escaping water which appeared on AMAX's land was a part of its land and belonged to AMAX. Under Indiana water rights law, there was no obligation of lateral support placed upon land owners to prevent the escape of ground water from other lands. In addition, the trial court found that there is nothing in Indiana law that would allow a landowner whose predecessors have sold rights-including the removal of natural support and the right to subside the surface-to replace these rights by limiting the rights of others or by placing on others new or additional lateral support duties. Finally, the trial court found that the undisputed facts showed that the natural necessary subjacent support was removed by underground mining in the No. 6 coal seam and the subsequent flooding of the abandoned mine works even further decreased the - remaining - support. Percolating ground water could not, and did not, replace the naturally necessary support.
Therefore, the trial court reversed the order of the Department and remanded the case.
B & LS had been pumping both surface and ground water which accumulated in its pit. The removal of the ground water had the potential to lower water in bodies of water in the vicinity of the Hornet Mine. All of these bodies of water are former strip mines which have filled with water over the years since mining ceased. None are natural lakes or ponds. These former strip pits have hydrogeological connections with the Hornet Mine of varying types and degrees, some natural and some caused by mining activity. As a result, the removal of water from the active mine had lowered water levels in some of the strip pit ponds. When pumping stopped, the strip ponds refilled. Due to the variable and unpredictable nature of the hydrology in the area,
the only way that B & LS could avoid the possibility of lowering water levels in the strip pit ponds outside their permit area was to discontinue mining.
When B & LS's permit was approved (July 15, 1988) the Department took the position that I-SMCRA preserved state water rights and that it had no authority to require a surface mine operator to avoid dewatering. The Department's position was that Wiggins v. Brazil Coal & Clay (1983), Ind., 452 N.E.2d 958, still controlled common law water rights in Indiana.
In May of 1991, following its decision against AMAX Coal, the Department issued an order which unilaterally altered B & LS's previously issued permit stating that "if temporary or permanent lowering of water bodies causes damage it will be contrary to [the Department's] interpretation of I-SMCRA." R. Vol. I, p. (§)(5), State ex rel B & LS Contracting, Inc. and Shand Mining v. Indiana Department of Natural Resources et al. The order required B & LS to either demonstrate a right of entry for off-site lakes to be lowered or to demonstrate by hydrogeologic analysis that surface and groundwater mining operations would not cause off site "damage." The practical effect of the order was to prohibit further mining until B & LS purchased the rights to partially or completely dewater strip ponds outside their permit area that may be affected by its operations.
The trial judge found that, in effect, the Department sought to transfer B & LS's existing common law water rights to nearby property owners whose strip pit ponds might be affected by B & LS's operations, and then require B & LS to repurchase these rights if they were to be able to mine their property. The trial judge noted that there was no basis in law for preferring the use of percolating water by landowners near the Hornet Mine for strip pit ponds, as opposed to B & LS's proposed pumping of percolating water which appeared on its property and interfered with the mining operation. The trial judge stated that B & LS merely sought to make the same use of its property (mining coal), that the nearby landowners (or their predecessor's in interest) already had made of their property (which resulted in the creation of the strip pit ponds). He then concluded that, as a matter of law, the Department had no authority to issue its order and granted B & LS's requests for declaratory judgment, injunction, judicial review, and writ of prohibition.
DECISION
The parties raise numerous issues and sub issues for our review which we summarize as whether I-SMCRA preserves Indiana water rights law and denies the Department the authority to affect such rights in any way. In addition, as did this court in AMAX Coal Company v. Adams et al (1992), Ind.App., 597 N.E.2d 350, we
raise sua sponte the question of whether cross-condemnation by counsel for AMAX and Jarrett is appropriate material for appellate briefs.
ISSUE I. THE BRIEFING WAR
We first address the quality of briefing by counsels in the AMAX v. Jarrett portion of this case. Apparently, counsels are involved in a series of cases involving surface coal mining in Sullivan County. Their relationship is acrimonious, to put it mildly. Throughout their briefs, and the motions which preceded the briefs, they have launched rhetorical broadsides at each other which have nothing to do with this case. Snide remarks, one even aimed at this court,
and personal attacks concerning each other's motivation, intellectual skills, and honesty merely take up valuable judicial time and quite frankly, are boring. As stated by Judge Conover, "such petulant grousing has a deleterious effect" on the subject matter of the brief. AMAX Coal v. Adams et al., supro at 352. It is nothing but noise which blocks out legitimate argument. - Id.
In addition, the Record in this case indicates that such conduct has been the norm, not the exception. Administrative Law Judge William Teeguarden, at the close of a long, bickering filled, 19th day of a 24 day hearing, had this to say to counsel:
We are going to pick up at 8:30 on Thursday morning in this room. And I am going to see if I can get a room for Friday, Saturday and Sunday. And this crap is going to stop and we are going to finish this hearing and we are going to get this behind us and then we are going to go on to wherever it goes next.
Supplemental Record, Transcript of Temporary Relief Hearing, Day 19, p. 831.
We understand Judge Teeguarden's frustration and agree with him (but not necessarily with his choice of words). We also note that our supreme court has recently rejected a petition to transfer for "impertinent allegations" in Deitch v. Linderman (1992), Ind.App., 584 N.E.2d 1126, denied. Counsels should be aware that if this kind of behavior continues, they risk rejection of their briefs and the possible loss of their client's case.
ISSUE II. I-SMCRA AND COMMON LAW WATER RIGHTS
A. Standard of Review
Although B & LS involves a question of declaratory and injunctive relief and AMAX involves partial summary judgment, the issue before us in both cases is a pure question of law: Whether I-SMCRA gives the Department the authority to change in any way existing Indiana common law water rights. See B & LS Record p. 88. We review de novo the legal conclusions of the trial court. Humana Health Care Plans v. Snyder-Gilbert (1992), Ind.App., 596 N.E.2d 299, 300; Brant v. Hester (1991), Ind.App., 569 N.E.2d 748, 754. "Appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law." 44 Kenneth M. Stroud Indiana Practice section 12.3 (2d ed. 1990). "A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for its resolution." Id.
B. Indiana's Common Law of Ground Water
Indiana's common law of percolating ground water
is founded on the English Rule, also known as the Absolute Ownership Rule, in that it is not "governed by the law which applies to rivers and flowing streams but ... it rather falls within the principle which gives the owner of the soil all that lies beneath his surface...." New
Albany and Salem R.R. v. Peterson (1860), 14 Ind. 112, 114.
A second rule, the American Rule, also recognizes the property interest of the surface owner in the water beneath the land. Under this Rule, a landowner may appropriate such water, but cannot appropriate those waters "in excess of a reasonable and beneficial use upon the lands he owns, unconnected with the beneficial use of the land, especially if the exercise of such use is injurious to others, who have substantial rights to the water." Metropolitan Utilities Dist. v. Merritt Beach Co. (1966), 179 Neb. 783, 140 N.W.2d 626, 637.
A liberal form of the American Rule was approved in Indiana at the turn of the century in Gagnon v. French Lick Springs Hotel Co. (1904), 163 Ind. 687, 72 N.E. 849. The hotel company owned a number of mineral springs that were a major attraction for the hotel. George Gagnon, conspiring with others whose business interests were hostile to the hotel, drove a well into the aquifer
which supplied the springs and placed a powerful steam pump into operation. Id. at 698, 72 N.E. at 850. The pump was run continuously withdrawing more than 500,000 gallons of water per day. This caused the springs at the hotel to cease flowing, rendering them practically useless. Neither Gagnon nor his cohorts had any use for the water they pumped, it was simply dumped into French Lick Creek and wasted. Id. The hotel owners sought and were granted an injunction against the pumping. On appeal, our supreme court affirmed the trial court. The supreme court followed both the Virginia and Minnesota courts finding that there were well recognized exceptions to both the English and American Rules. "Where the diversion of the water is purely malicious, and is detrimental to another proprietor, it may be prevented by injunction; Miller, supra; [also] where the water is simply wasted. Stillwater v. Farmer (1903) 89 Minn. 58, 93 N.W. 907." Id. 163 Ind. at 696, 72 N.E. at 851.
Given the outrageous conduct of Gag-non, the outcome of this case was not surprising. However, dicte in the opinion suggested a major divergence in Indiana from prior common law. The court stated that "there are well-recognized exceptions to [the English and American] rules, and doubtless further exceptions and departures from them will from time to time be found necessary and expedient." Id. The court further observed that the "strong trend" was "toward a qualification of the earlier doctrine that the landowner could exercise unlimited and irresponsible control over subterranean waters on his own land, with regard to the injuries which might thereby result to the lands of other proprietors in the neighborhood." Id. at 696-697, 72 N.E. at 852. This language was so pointed that in 1956, one commentator declared that "the older view [of ground water rights] was all but abrogated by Gagnon." - Note, Water Rights in Indiana, 31 Ind.L.J. 39, 47 (1956). However, more recent cases have reaffirmed the traditional Indiana common law view of ground water.
In Irving Materials v. Carmody (1982), Ind.App., 486 N.E.2d 1163, property owners were denied compensation for damages to their water wells caused by the pumping of water from a gravel pit. Use of the land as a gravel pit was found to be reasonable and therefore, lawful. The damage suffered by the plaintiffs was found to be "damnum absque injuria. They simply have not suffered a legal wrong." Id. at 1165.
The Indiana Supreme Court reaffirmed the traditional common-law ground water utilization doctrine in Wiggins v. Brazil Coal & Clay (1983), Ind., 452 N.E.2d 958, discussed supra, n. 7. In addition, the court implicitly rejected the position taken by this court [Wiggins v. Brazil Coal & Cloy (1982), Ind.App., 440 N.E.2d 495] which had adopted the view of the Restatement (Second) of Torts, Section 858,
by vacating our decision.
This has been noted by a federal district court applying Indiana law. "The fact that the Supreme Court of Indiana vacated the decision of the Court of Appeals which attempted to change the law to adopt Section 858 is proof that it decided the issue of the Restatement's relevance to Indiana law." Prohosky v. Prudential Ins. Co. of America (N.D.Ind.1984), 584 F.Supp. 1337, 1341.
The design and direction of our supreme court in Wiggins was unambiguous. Where a person uses or disposes of percolating ground water for a beneficial purpose, damage which results to another is not actionable at common law unless the damage is deliberate or gratuitous. Wiggins, supra at 963.
C. F-SMCRA AND I-SMCRA
The Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA or E-SMCRA) was a pervasive federal enact ment that addressed surface coal mining and developed independently from the Indiana common law of water rights. - SMCRA required states to adopt regulations that mirrored the federal provisions. If a state failed to do so, a federal plan would be imposed. 30 U.S.C.A. Section 1254; Hodel v. Indiana (1981), 452 U.S. 314, 319-20, 101 S.Ct. 2376, 2880-81, 69 L.Ed.2d 40. The Office of Surface Mining, acting through the Secretary of the Interi- or, approved Indiana's version of SMCRA (I-SMCRA) effective July 29, 1982. The primary statutory authority is 1.0. 18-4.1 (The Reclamation Act) and the primary rule authority is found at 810 LA.C. 12. It is important to note, as this court did in Indiana DNR v. Krantz Bros. Const. (1991), Ind.App., 581 N.E.2d 935, reh'g denied (1992), that because the first purpose of I-SMCRA "is to implement and enforce [E-SMCRA] we will look to [F-SMCRA] and the federal rules adopted under it as we analyze [I-SMCRA]...." Id. at 987.
Section 717(a) of both F and I-SMCRA is the subject of this case. Section 717(a) states:
Nothing in this chapter [Article] shall be construed as affecting in any way the right of any person to enforee or protect under applicable law his [the person's] interest in water resources affected by surface coal mining operations [830 U.S.C. section 1307(a) and 1.C. 18-4.1-8-1(25) ]. (Portions in brackets are contained in I-SMCRA).
As simple as this single sentence appears, it has resulted in fifteen years of interpretation and litigation. From 1977 to 1985, the Department of Interior maintained that section 717(a) in F-SMCRA did not require deference to state water rights law. Upon legal challenge, the Department of Interior reversed its position and found that section 717(a) required deference to and did not affect state water rights law.
The D.C. Circuit court upheld the decision of the district court holding that:
The most reasonable interpretation of the statutory language [717(a)] is that whatever water rights State law affords mine operators are preserved along with
those of other users. Under such a reading [SMCRA] does not deprive anyone, including mine operators, of whatever rights to the use of water they had previously. The saving provision by its terms applies to "any person." Congress could easily have excluded mine operators had it intended. - [However], throughout SMCRA, Congress expressed a concern for preserving existing property rights, and for not interfering with State determination of those rights. (Emphasis added).
National Wildlife Federation v. Hodel (1988), D.C.Cir., 839 F.2d 694, 756-757.
Indiana followed both the district and circuit court decisions. The General Assembly first amended I-SMCRA in 1986 to parrot F-SMCRA. 'In 1989, the Department amended 810 L.A.C. 12-5-29 to recognize that Indiana water rights law was to be unaffected by I-SMCRA. In 1991, the Secretary of the Interior approved this amendment stating:
[The Secretary agrees that section 717(a) requires a deference to State water law on questions of water use and thus interprets section 717(b) and the rule at issue as not requiring the replacement of water supplies to the extent a surface coal mine operator consumes or legitimately uses the water supply under a senior water right determined under applicable law.... Therefore, Indiana's proposal to subjugate its I-SMCRA-based water rights and replacement provisions to Indiana water rights law is consistent with SMCRA and the Federal regulations." - (Emphasis added).
56 F.Reg. at 37018.
At the B & LS hearing before the trial court (June 13, 1991), the transcript shows the following exchange:
TRIAL COURT: Was there anything, any case that came down or decision that was rendered or anything that happened between May 18, 1988, when you said, here's the go-ahead [to surface mine], and when the [Department] changed its position and said now we no longer believe this amendment means what we thought it meant in 1988? Did something happen between those dates? COUNSEL FOR THE DEPARTMENT: Nothing happened legally. I think that there was probably discussion internally as to the best way to prevent damage from mining....
Supplemental Record, B & LS v. Indiana Department of Natural Resources, et al, at 98-99.
TRIAL COURT: What I need to know, and apparently what you're saying now is, none of those legal precedents ever changed and the [Department's] position changed.
COUNSEL FOR THE DEPARTMENT: Well, that's true. There were no other cases that came down for the [Department] to say-oh look, here's another Wiggins case and it goes this way instead of that way. No, that's true. That didn't happen, but ...
Id. at 100.
With this in mind, we now move to the specific cases before us. We address B & LS first simply for convenience.
D. B & LS and L-SMCRA
Although the similarity between the facts in B & LS's case and Wiggins is striking, the Department argues that Wiggins does not control and that under state water legislation other than I-SMCRA, it has the authority to regulate water resources use in all situations despite the clear mandate of section 717(a).
The Department's position was discussed at the hearing before the trial judge with the following results:
COUNSEL FOR THE DEPARTMENT: . I think the General Assembly has evidenced its desire to maybe go beyond Wiggins because there has been legisla
tion since then trying to protect wells, trying to protect lakes ... and so ... and so they're kind of expanding some kind of protection. What we go to is ... that's right. Wiggins is not the only water rights law and the legislature has evidenced this intention to afford protection to citizens. And so we go to Indiana Code 13-2-2 and this is where I say that I am repeating myself ... where it is stated that water is a resource, a valuable resource of the state and it can be regulated. And yes, we do go back to SMCRA on that and say, that is reasonable regulation in the surface mining context.
TRIAL COURT: Does that strike you at all as bootstrapping?
COUNSEL FOR THE DEPARTMENT: Yes.
TRIAL COURT: Okay. That's honest. All right. I've just pretty well chopped up your argument.
Id. at 107-108.
As stated supra, the trial judge then found that the Department had exceeded its statutory authority. He noted that our General Assembly in 1986 amended I-SMCRA so that F-SMCRA section 717(a) was repeated verbatim and which expressly limits and prohibits all provisions of the "Article" from "affecting in any way" water rights. R. at 6, paragraph 15 citing to AMAX Judgment paragraphs 7 through 15. "The only reasonable interpretation of I.C. 13-4.1-8-1(25) is that I-SMCRA expressly preserves and does not affect [B & LS's] common law water rights. Thus, [the Department's] Order is unlawful and in excess of its jurisdiction and authority." R. at 7.
Regarding I.C. 13-2-2-2, the trial judge found that there is nothing in this section that authorizes or grants any authority to the Department to affect B & LS's groundwater rights. In addition, the type of "ground water" in this case is not covered by the statute-a strip pit pond or lake is not a natural body of water. B & LS merely seeks to make the same use of their property that the present owners of the strip pit lake (or their predecessor's in interest) made of their property-to surface mine coal.
We agree with the trial judge. Wiggins still controls the common law of percolating ground water rights in Indiana. As a matter of law, the Department has no authority to interfere with B & LS's non-malicious or gratuitous use of "lost water" on their land. The design and direction of our supreme court in Wiggins is unambiguous. Where a person uses or disposes of percolating ground water for a beneficial purpose, damage which results to another is not actionable at common law unless the damage is deliberate or gratuitous. Wiggins supra, at 968.
E. AMAX Coal, Jarrett, and I-SMCRA
Apparently recognizing the correctness of the trial court's decision in regard to section 717(a), Jarrett tried a different attack and argued that "an Indiana property owner has an absolute right to subjacent support of his property which is superior to any right of a neighboring property owner to depressurize an abandoned underground mine underlying both properties by pumping ground water from the mine." Jarrett's Brief at 12. Jarrett then attempted to extend this concept to include the absolute right of lateral support. Jarrett urged us to adopt Sections 818
and 820
of the
Restatement (Second) of Torts to prevent AMAX from lowering the water head in the No. 6 coal which he concludes is now "subjacent support" for his land. Jarrett ignores the fact that these theories of law apply to land in its natural state.
The trial judge found that pre-I-SMCRA water rights law as set forth in Wiggins was that ground water escaping from one landowner to the land of another is "lost water" as to the former. The escaping water that appeared in AMAX's pit was part of AMAX's land and belonged to AMAX. The rights to use ground water flowed with the ground water. Under Indiana water rights law, there was and is no obligation of lateral support placed upon land owners to prevent the escape of ground water from other lands. See Wiggins, supra at 964; Spall v. Janota (1980), Ind.App., 406 N.E.2d 378.
Indiana water rights law, as affirmed by Wiggins, does not depend on, nor change due to, the nature of the ground water use by a landowner before the water escapes (Le., a use as so-called "substituted support" or a use to fill an abandoned strip pit and form a lake), or upon secondary effects occasioned by the escape of the ground water, (ie., the lost use for "support" or the lost use to fill a pit and form a lake).
The "use" which Jarrett seeks to protect is to use the groundwater as supposed "substituted support" to replace the natural support removed during mining in the Regent and - Vandalia Mines pursuant to mining rights conveyances. Such a "use" has no priority under Indiana water law and there is no basis in law to require lateral support for water, ie., to prevent the escape of ground water. Nothing under Indiana law would allow a landowner whose predecessors have sold rights, including the removal of natural support, to replace such rights by limiting the rights of others or by placing on others new or additional lateral support duties.
Even under the law of lateral support pursuant to Restatement (Second) section 818, a landowner cannot artificially enlarge his rights to support by altering the natural condition of his land so as to create or place an additional duty of lateral support upon adjoining landowners. The undisputed facts are that seventy-five to eighty percent (75-80%) of the natural subjacent support was removed by underground mining in the No. 6 coal seam. The subsequent flooding of the abandoned mines by percolating ground water further decreased the strength of the remaining natural support-the remaining twenty to twenty five percent (20 to 25%) of the coal (pillars).
Percolating ground water that flooded the abandoned mines, cannot, and did not, replace the "naturally necessary support." Jarrett's theory of "subjacent support'" by percolating ground water flooding abandoned mines is unsupported by science, law, or logic. Therefore, lacking such necessary support-like the old mines in the No. 6 coal-Jarrett's theory collapses.
The Department and Jarrett would have us construe I-SMCRA so as to: (1) appropriate AMAX's water rights to replace the natural necessary support that was removed by underground mining allowed by Jarrett's predecessors; and (2) require lateral support of percolating ground water by AMAX-all for the benefit of Jarrett. This we decline to do. AMAX's pumping of ground water in order to prevent such water from invading and flooding its surface coal mine pit is a valid business purpose (Administrative Law Judge Finding 815, affirmed by the Department) and is a lawful exercise of its pre- and post-I-SMCRA ground water rights.
The trial court is affirmed.
CONOVER and RUCKER, JJ., concur.