Posted by: Patricia Salkin | August 21, 2012

Maryland Court of Special Appeals Finds Local Surface Mining Ordinance Preempted by State Law

In September 2008, with amendments in 2009, the Queen Anne’s County Commissioners passed a surface mining ordinance dealing with “major extraction operations.” Briefly, the ordinance prohibited major extraction operations from occupying more than 20 acres of land, except through 20-acre approved expansions; stipulated that a major extraction operation could not exceed five years in duration, though it could be renewed in five-year increments; required that a major extraction operation could not expand until previously disturbed lands were restored; and designating that expansion or renewals were subject to approval by the County Board of Appeals as a conditional use.

East Star LLC, Shore Sand and Gravel LLC, and David A Bramble Inc. (appellants) are sand and gravel excavation companies impacted by the ordinance. Appellants challenged that the ordinance was preempted by Maryland state surface mining laws. However, the circuit court declined to find preemption and rejected an additional substantive due process claim, finding in favor of the County. Appellants here appeal, arguing and the Maryland Appeals Court agreed, that the County ordinance was preempted by State surface mining laws because these laws did not limit the acreage of mining operations, or the duration of mining operations (up to 25 years), and did not mandate reclamation as a condition of expansion.

The Court held that conflict preemption existed because there was a direct conflict between the County ordinance and State Law regarding the maximum disturbance area, reclamation timeline, limitations placed on the permit term, and classification of mining activity as a permitted versus a conditional use. Thus, the County ordinance was in direct conflict with State law and, since it placed additional and incompatible restrictions on surface mining activities which the State intended to allow, it was invalid.

The Court also held that the County ordinance was impliedly preempted since surface mining is not an area traditionally controlled by local government, since the State had already provided a detailed and complete regulatory program for surface mining permits, and since the state had manifested an intent to create an all-encompassing regulatory scheme for surface mining. This left no room for County regulation, so the ordinance was invalid.

The case was remanded to the circuit court with directions to issue a declaratory judgment invalidating the Queen Anne’s County law.

East Star, LLC v. County Commissioners of Queen Anne’s County, 2012 WL 657878 (Md. App. 3/1/12)

The opinion can be accessed at:

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