text:
The Indian Dormant Mineral Interests Act, more commonly known as the Mineral Lapse Act, provides that a severed mineral interest that is not used for a period of 20 years automatically lapses and reverts to the current surface owner of the property, unless the mineral owner prior to the end of the 20-years period or within a 2-years grace period after the effective date of the Act (September 2, 1971) files a statement of claim in the local county recorder's office. The "use" of a mineral interest sufficient to preclude its extinction includes actual or attempted production of the minerals, payment of rents or royalties, and payment of taxes. The statute contains one exception to the general rule: If an owner of 10 or more mineral interests in the same county files a statement of claim that inadvertently omits some of those interests, the omitted interests may be preserved by a supplemental filing made within 60 days of receiving notice of the lapse. Appellants whose unused mineral interests had lapsed upon expiration of the grace period under the Act, challenged the constitutionality of the Act in actions brought in Indiana state court. They claimed that under the Fourteenth Amendment the lack of prior notice of the lapse deprived them of property without due process of law, the statute effected a taking of property for public use without just compensation, and the exception for owners of 10 or more mineral interest denied them the equal protection of the law. They also contended that the statute constitutes an impairment of contracts in violation of the Contract Clause. The trial court declared the statute unconstitutional, but the Indiana Supreme Court reversed.
1. The State has the power to enact the kind of statute in issue, and in this instance has not exercised this power in an arbitrary manner. Each of the actions required to avoid an abandonment of a mineral interest furthers the legitimate state goals of encouraging mineral interest owners to develop such interests and of collecting property taxes. Pp. 525-530.
2. The Act does not take property without just compensation in violation of the Fourteenth Amendment. Since the State may treat as abandoned a mineral interest that has not been used for 20 years and for which no statement of claim has been filed, it follows that, after [454 U.S. 516, 517] abandonment, the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property - and not eh State's action - that causes the lapse of the property right; there is no "taking" that requires compensation. P. 530.
3. Nor does the Act unconstitutionally impair the obligation of contracts Since appellant mineral owners did not execute any coal and oil leases until after the statutory lapse of their mineral rights, the statute cannot be said to impair a contract that did not exist at the time of its enactment. While appellants' right to enter such an agreement has been impaired, this right is a property, not a contract, right. P. 531.
(b) Given appellants' presumed knowledge that their unused mineral interests would lapse unless they filed a statement of claim, appellants had no constitutional right to be advised that the 20-year period of nonuse was about to expire. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 , distinguished. Since the State may impose on a mineral interest owner the burden of using that interest or filing a statement of claim, it follows that the State may impose on him the lesser burden of keeping informed of the use or nonuse of his own property. Pp. 533-438.
5. Since the statutory exception for owners of 10 or more mineral interests furthers the legitimate statutory purpose of encouraging multiple ownership as being more conducive to the actual production of mineral resources, and has no adverse impact no persons like appellants who own fewer mineral interests, the exception does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 538-540.
___ Ind. ___, 406 N. E. 2d 625, affirmed.
STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and POWELL, JJ., joined, post, p. 540.
John L. Carroll argued the cause for appellants in both cases and filed briefs for appellants in No. 80-965. James M. Buthod and Mark W. Rietman filed briefs for appellants in No. 80-1018.
Fn [454 U.S. 516, 518] John M. Rosenberg filed a brief for Save our Cumberland Mountains, Inc., et al., as amici curiae urging affirmance.
In 1971 the Indiana Legislature enacted a statute providing that served mineral interest that in not used for a period of 20 years automatically lapses and reverts to the current surface owner of the property, unless the mineral owner, files a statement of claim in the local county recorder's office. 1 The Indiana Supreme Court rejected a challenge to the constitutionality of the statute. ___ Ind. ___, 406 N. E. 2d 625 (1980). We note probable jurisdiction, 450 U.S. 993 , and now affirm.
Two cases are consolidated in this appeal. The facts in each are stipulated. In No. 80-965, appellants include 11 parties who claim ownership of fractional mineral interests served in 1942 and in 1944 from a 132-acre tract of land in Gibson County, Ind.; a 12th appellant is the lessee of oil and gas leases executed in 1976 and 1977 by the other appellants. The appellee is the surface owner of the 132-acre tract from which the appellants' mineral interests were carved. The parties stipulated that the appellants had not used the mineral interest for 20 years and had not filed a statement of claim within 2 years of the effective date of the statute. Thus, under the terms of the Dormant Mineral Interests Act, the mineral interest automatically lapsed on September 2, 1973, when the 2-year grace period expired. On April 28, 1977, appellee gave notice that the mineral interests had lapsed. 10 Appellants responded by filing statements of claim in the Office of the Recorder of Gibson County. Thereafter, appellee filed this action, seeking a declaratory judgment that the rights of the mineral interest owners had lapsed and were extinguished by reason of the Dormant Mineral Interests Act.
In No. 80-1018, the severed mineral estate was created on March 1, 1954. On the date, appellants Pond and Bobe conveyed land to appellees by a warranty deed that contained a reservation of the mineral estate. On June 17, 1976, Pond and Bobe executed a coal mining lease with appellant Consolidated Coal Co. The parties stipulated that, for a 20-year [454 U.S. 516, 522] period following the creation of the mineral estate, appellants did not use the interest or file a statement of claim in the Recorder's Office. Thus, on March 1, 1974, a date more than two years after the effective date of the Dormant Mineral Interests Act, a statutory lapse occurred. On March 4, 1977, appellees gave notice of the lapse, both by letter to the appellants and by publication in the Princeton Daily Clarion. The parties jointly filed the instant lawsuit on January 12, 1978, to resolve their conflicting claims to the mineral rights.
In each case it is agreed that if the statute is valid, appellants' mineral interests have lapsed because of their failure to produce minerals, pay taxes, or file a statement of claim within the statutory period. In neither case does the agreed statement of facts indicate whether any of the appellants was aware of the enactment of the Mineral Lapse Act, or of its possible effect on his mineral interests, at any time after the enactment of the statute and before the appellees published notice of the lapse of the mineral estates.
"The Act reflects the legislative belief that the existence of a mineral interest about which there has been no display of activity or interest by the owners thereof for a period of twenty years or more is mischievous and contrary to the economic interests and welfare of the public. The existence of such stale and abandoned interests creates uncertainties in titles and constitutes an impediment to the development of the mineral interests that may be present and to the development of the surface rights as well. The Act removes this impediment by returning the severed mineral estate to the surface rights owner. There is a decided public interest to be served when this occurs. The extinguishment of such an interest makes the entire productive potential of the property again available for human use." ___ Ind., at ___, 406 N. E. 2d, at 627.
The State of Indiana has defined a severed mineral estate as a "vested property interest," entitled to "the same protection [454 U.S. 516, 526] as are fee simple titles." 18 Through its Dormant Mineral Interests Act, however, the State has declared that this property interest is of less than absolute duration; retention is conditioned on the performance of at least one of the actions required by the Act. We have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest.
In these early cases, the Court often emphasized that the statutory "extinguishment" properly could be viewed as the withdrawal of a remedy rather than the destruction of a right. 22 We have subsequently made clear, however, that, when the practical consequences for extinguishing a right are identical to the consequences of eliminating a remedy, the constitutional analysis is the same. El Paso v. Simmons, 379 U.S. 497, 506 -507. The extinguishment of the property owners' "remedy" in Hawkins and Iseminger placed them in precisely the same position as that held by the mineral owners in the instant cases after their interests had lapsed.
"It is within the undoubted power of state legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time; and the power is the same whether the deed is debated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent a void against a subsequent purchaser, it is not a law impairing the obligation of contracts; such too is the power to pass acts of limitations, and their effect. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. The time [454 U.S. 516, 529] and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment." Id., at 290.
These decisions clearly establish that the State of Indiana has the power to enact the kind of legislation at issue. In each case, the Court upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time. In each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned and to lapse.
It is also clear that the State has not exercised this power in an arbitrary manner. The Indiana statute provides that a severed mineral interest shall not terminate if its owner takes any one of three steps of establish his continuing interest in the property. If the owner engages in actual production, or collects rents or royalties from another person who does or proposes to do so, his interest is protected. If the owner pays taxes, no matter how small, the interest is secure. If the owner files a written statement of claim in the county recorder's office, the interest remains viable. Only if none of these actions is taken for a period of 20 years does a mineral interest lapse and revert to the surface owner.
Two of appellants' arguments may be answered quickly. Appellants contend that the Mineral Lapse Act takes private property without just compensation in violation of the Fourteenth Amendment; they also argue that the statute constitutes an impermissible impairment of contracts in violation of the Contract Clause. The authorities already discussed mandate rejection of each of these arguments.
Appellants' primary attack on the Dormant Mineral Interests Act is that it extinguished their property rights without adequate notice. In advancing this argument, appellants actually assert two quite different claims. First, appellants argue that the State of Indiana did not adequately notify them of the legal requirements of the new statute. Second, appellants argue that mineral interest may not be extinguished unless the surface owner gives the mineral owner advance notice that the 20-year period of nonuse is about to expire. When these two arguments are considered separately, it is clear that neither has merit.
We have concluded that appellants may be presumed to have had knowledge of the terms of the Dormant Mineral Interests Act. Specifically, they are presumed to have known that an unused mineral interest would lapse unless they filed a statement of claim. The question then presented is whether, given that knowledge, appellants had a constitutional right to be advised - presumably by the surface owner - that their 20-year period of nonuse was about to expire.
In answering this question, it is essential to recognize the difference between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did in fact occur. As noted by appellants, no specific notice need be given of an impending lapse. If there has [454 U.S. 516, 534] been a statutory use of the interest during the preceding 20-year period, however, by definition there is no lapse - whether or not the surface owner, or any other party, is aware of that use. Thus, no mineral estate that has been protected by any of the means set forth in the statute may be lost through lack of notice. It is undisputed that, before judgment could be entered in a quiet title action that would determine conclusively that a mineral interest has reverted to the surface owner, the full procedural protections of the Due Process Clause - including notice reasonably calculated to reach all interested parties and a prior opportunity to be heard - must be provided.
"Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id., at 313.
Specifically, the Court held that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,," id., at 314; the notice in Mullane was deficient "not because in fact it fail[ed] to reach everyone, [454 U.S. 516, 535] but because under the circumstances it [was] not reasonably calculated to each those who could easily be informed by other means at hand." Id., at 319.
The reasoning in Mullane is applicable to a judicial proceeding brought to determine whether a lapse of a mineral estate did or did not occur, but not to the self-executing feature of the Mineral Lapse Act. The due process standards of Mullane apply to an "adjudication" that is "to be accorded finality." The Court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property. 28 It has long been established that "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," Grayned v. City of Rockford, 408 U.S. 104 , [454 U.S. 516, 536] 108, but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.
As emphasized above, appellants do not challenge the sufficiency of the notice that must be given prior to an adjudication purporting to determine that a mineral interest has not been used for 20-years. Appellants simply claim that the absence of specific notice prior to the lapse of a mineral right renders ineffective the self-executing feature of the Indiana statute. That claim has no greater force than a claim that a self-executing statute of limitations is unconstitutional. The Due Process Clause does not require a defendant to notify a potential plaintiff that a statute of limitations is about to run, although it certainly would preclude him from obtaining a declaratory judgment that his adversary's claim is barred without giving notice of that proceeding.
The Indiana statute allows a mineral owner to retain an interest, notwithstanding a failure to file a statement of claim within the statutory period, if he satisfies four specific conditions: (1) he must own at least 10 mineral interests in the county; (2) he must have made a diligent effort to preserve all his interests and have succeeded is preserving some; (3) his failure to preserve the interest in question must have been [454 U.S. 516, 539] through "inadvertence"; and (4) he must file a statement of claim within 60 days after receiving notice that the mineral interest has lapsed. 35 Appellants contend that this special exception violates the Equal Protection Clause of the Fourteenth Amendment.
There is nothing in the records to tell us how often, if ever, this statutory exception has been invoked. Nor do the records indicate the number of persons who own 10 or more interests in any one county in Indiana. Since mineral interests may be bought and sold like other property, and often have little value, the composition of the class benefited by this exception is subject to constant change. Unlike those classes that are defined by personal characteristics, anyone who purchases 10 fractional mineral interests in the same county, of whatever value, can join this favored class.
Although appellants do not suggest that they are financially unable to join the special class, or that its existence has any adverse impact on their own rights - or indeed that excision of the exception from the Act would provide them with any benefit whatsoever - they nevertheless argue that it is basically unfair to treat owners of multiple interests more favorably than they are treated. The Indiana Supreme Court has explained, however, that the State has an interest in encouraging the assembly of multiple interests in a single ownership because such owners are more likely to be able to engage in the actual production of mineral resources. 36 This [454 U.S. 516, 540] state interest in unquestionably legitimate. Thus, a statutory provision that encourages multiple ownership - by giving that kind of ownership additional protection against forfeiture after it has been assembled - is related to the central purpose of the statute. Since the exception furthers a legitimate statutory purpose, and has no adverse impact on persons like the appellants who owner fewer mineral interests, the exception does not violate the Equal Protection Clause of the Fourteenth Amendment.
The judgment of the Supreme Court of Indiana is affirmed.
[ Footnote 1 ] The statute is entitled the Dormant Mineral Interests Act, and is more commonly known as the Mineral Lapse Act. Ind. Code 32-5-11-1 through 32-5-11-8 (1976), as added by 1971 Ind. Acts, Pub. L. 423, 1.
[ Footnote 2 ] ___ Ind., at ___, 406 N. E. 2d, at 627.
[ Footnote 3 ] "Any interest in coal, oil a gas, and other minerals, shall, if unused for a period of 20 years, be extinguished, unless a statement of claim is filed in accordance with section five hereof [sic], and the ownership shall revert to the then owner of the interest out of which it was carved." Ind. Code 32-5-11-1 (1976).
[ Footnote 4 ] See n. 7, infra.
"Interests or estates in oil, gas, coal and other minerals lying beneath the surface of the land are interests in real estate for our purposes here, and as such are entitled beyond question to the firmest protection of the Constitution from irrational state action. They are vested property interests separate and distinct from the surface ownership. The State has no power to deprive an owner of such an interest without due process of law. They are entitled to the same protection as are fee simple titles. They are themselves of great utility and benefit to the society as a means of facilitating the development of natural resources." ___ Ind., at ___, 406 N. E. 2d, at 627.
[ Footnote 6 ] "A mineral interest shall be deemed to be used when there are any minerals produced thereunder or when operations are being conducted thereon for injection, withdrawal, storage or disposal of water, gas or other fluid substances, or when rentals or royalties are being paid by the owner thereof for the purpose of delaying or enjoying the use or exercise of such rights or when any such use is being carried out on any tract with which such mineral interest may be unitized or pooled for production purposes, or when, in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of such mineral interests, or when taxes are paid on such mineral interest by the owner thereof. Any use pursuant to or authorized by the instrument creating such mineral interest shall be effective to continue in force all rights granted by such instrument." Ind. Code 32-5-11-3 (1976).
[ Footnote 7 ] "The statement of claim provided in section one above shall filed by the owner of the mineral interest prior to the end of the twenty year period set forth in section two [sic] or within two years after the effective date of this act, whichever is later, and shall contain the name and address of the [454 U.S. 516, 520] owner of such interest, and description of the land, on or under which such mineral interest is located. Such statement of claim shall be filed in the office of the Recorder of Deeds in the county in which such land is located. Upon the filing of the statement of claim within the time provided, it shall be deemed that such mineral interest was being used on the date the statement of claim was filed." Ind. Code 32-5-11-4 (1976).
"4) filed the statement of claim herein required, within sixty (60) days after publication of notice as provided in section seven herein [sic], if such notice is published, and if no such notice is published, within sixty (60) days after receiving actual knowledge that such mineral interest had lapsed." Ind. Code 32-5-11-5 (1976).
[ Footnote 9 ] "Any person who will succeed to the ownership of any mineral interest, upon the lapse thereof, may give notice of the lapse of such mineral interest by publishing the same in a newspaper of general circulation in the county in which such mineral interest is located, and, if the address of such mineral interest owner is shown of record or can be determined upon reasonable inquiry, by mailing within ten days after such publication a copy of such notice to the owner of such mineral interest. The notice shall state [454 U.S. 516, 521] the name of the owner of such mineral interest, as shown of record, a description of the land, and the name of the person giving such notice. If a copy of such notice, together with an affidavit of service thereof, shall be promptly filed in the office of the Recorder of Deeds in the county wherein such land is located, the record thereof shall be prima facie evidence, in any legal proceedings, that such notice was given." Ind. Code 32-5-11-6 (1976).
[ Footnote 10 ] Appellee published a "notice of lapse of mineral interest" in the Star Echo, a newspaper published a Owensville, Ind. On May 6, 1977, appellee mailed a similar notice to each of the appellants, except the oil and gas lessee.
The Fifth Amendment prohibition against the taking of private property for public use without just compensation applies against the State through the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 .
[ Footnote 12 ] "No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligations of Contracts, or grant any Title of Nobility."
[ Footnote 13 ] App. to Juris. Statement in No. 80-965, p. A-14; App. to Juris, Statement in No. 80-1018, p. A-16.
[ Footnote 14 ] ___ Ind., at ___, 406 N. E. 2d, at 629. The court distinguished Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 , and Bell v. Burson, 402 U.S. 535 , which had been relied on by the trial court, on the ground that these cases set forth notice requirements for adjudication proceedings, and not for a self-executing statute that uniformly affected all parties within the State.
[ Footnote 15 ] "The purposes of this Act as stated above at the beginning of the opinion are to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources. The dependence of local economies upon the mineral recovery industry and the entire State upon limited fossil fuel resources illustrates the public nature of these purposes. The objectives are valid and similar to those served by acts of limitation and the law of adverse possession. In limiting its incursion upon mineral rights to those which have been unused in the statutory sense for as long as twenty years, and in granting a two years period of grace after the enactment of the statute to preserve interests, the Legislature adopted means which are rationally related to such objectives, and which themselves provide a reasonable time and a simple and inexpensive method, taking into consideration the nature of the case, for preserving such interests. We find that this Act is within the police power of the states and does not unconstitutionally impair the obligation of contracts." ___ Ind., at ___, 406 N. E. 2d, at 630-631.
The court also rejected an argument that the statute effected a taking without compensation in violation of the State Constitution and state eminent domain theory, on the ground that the State did not acquire the mineral interests for its own use and benefit. The court emphasized that the Mineral Lapse Act does not "involved the injury to private property through conduct or activities of governmental agents or others having an exercising the power of eminent domain"; rather, the statute declares that "a lapse of a mineral interest will occur in the event of specified conditions and circumstances." Id., at ___, 406 N. E. 2d, at 631.
[ Footnote 16 ] Several State Supreme Courts, considering similar state statutes, have reached a result contrary to that of the Indiana Supreme Court. See Wilson v. Bishop, 82 Ill. 2d 364, 412 N. E. 2d 522 (1980); Contos v. Herbst, 278 N. W. 2d 732 (Minn. 1979), appeal dism'd sub nom. Prest v. Herbst, 444 U.S. 804 ; Wheelock v. Heath, 201 Neb. 835, 272 N. W. 2d 768 (1978); Chicago & N. W. Transportation Co. v. Pedersen, 80 Wis. 2d 566, 259 N. W. 2d 316 (1977). But see Van Slooten v. Larsen, 410 Mich. 21, 299 N. W. 2d 704 (1980).
[ Footnote 17 ] Appellants do not specifically contend that the Mineral Lapse Act is an impermissible exercise of the legislative power of the State. Appellants argue, however, that the State has irrationally required extraction in 20 years of a resource that took "a millennia to create," Brief for Appellants in No. 80-965, p. 17, and has impermissibly transferred a fee interest in property from one private party to another. Id., at 26.
[ Footnote 18 ] See n. 5, supra.
"It is argued, that limitation laws, although belonging to the lex fori, and applying immediately to the remedy, yet indirectly they effect a complete divesture and even transfer of right. This is unquestionably true, and yet in no wise fatal to the validity of this law. The right to appropriate a derelict is one of universal law, well known to the civil law, the common law, and to all law: it existed in a state of nature, and is only modified by society, according to the discretion of each community. What is the evidence of an individual having abandoned his rights or property? It is clear that the subject is one over which every community is at liberty to make a rule for itself . . . ." 5 Pet., at 467.
"In the early settlement of the country, the man who received a grant of land an failed, at first in three, and afterwards in five years, to seat and improve it, was held to have abandoned it: it received the denomination of lapsed land, was declared to be forfeited (Mercer's Abr.); and any one might take out a grant for it." Id., at 467-468 (emphasis added).
"It is defined to be a rent reserved to himself and his heirs by the grantor of land, out of the land itself. It is not granted like an annuity or rent charge, but is reserved out of a conveyance of the land in fee. It is a separate estate from the ownership of the ground, and is held to be real estate, with the usual characteristics of an estate in fee simple, descendible, devisable, alienable." 185 U.S., at 59 .
[ Footnote 21 ] The Court also held that the statute could apply to interests created before the enactment of the statute, since the statute contained a reasonable grace period in which owners could protect their rights.
"It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing cause of action; though what shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice." Id., at 62-63.
The Court in Iseminger, id., at 63, repeated the statement of Chief Justice Waite in Terry v. Anderson, 95 U.S. 628, 632 -633, that "[t]his court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect."
[ Footnote 22 ] In considering the validity of statutes such as those at issue in that case, the Court in Iseminger stated: "Such statutes, like those forbidding perpetuities and the statute of frauds, do not, in one sense, destroy the obligation of contracts as between the parties thereto, but they remove the remedies which otherwise would be furnished by the courts." 185 U.S. at 61. See also Terry v. Anderson, supra, at 634.
"It will not do to say that the case is merely one of conflict of two private interests and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property, for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of one interest over the other. And where the public interest in involved preferment of that interest over the property interest of [454 U.S. 516, 531] the individual, to the extend even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property." Id., at 279-280 (citations omitted).
[ Footnote 24 ] See Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 ; El Paso v. Simmons, 379 U.S. 497 .
"All persons are charged with knowledge of the provisions of statutes and must tale note of the procedure adopted by them; and when that procedure is not unreasonable or arbitrary there are no constitutional limitations relieving them from conforming to it. This is especially the case with respect to those statutes relating to the taxation or condemnation of land. Such statutes are universally in force and are general in their application, facts of which the land owner must take account in providing for the management of his property and safeguarding his interest in it."
See also Anderson National Bank v. Luckett, 321 U.S. 233, 243 .
[ Footnote 26 ] Moreover, the adequacy of the 2-year grace period for Indiana property owners can be evaluated more reliably by the Indiana Supreme Court than by this Court.
[ Footnote 27 ] For these reasons, we reject the suggestion in the dissenting opinion that the Indiana statute is invalid because it does not adequately protect citizens from "the silent actions of the legislature." Post. at 549. This proposition is squarely at odds with the established principle that "[a]ll persons having property located with in a state and subject to its dominion must take note of its statutes affecting the control or disposition of such property and of the procedure which they set up for those purpose." Anderson National Bank v. Luckett, supra, at 243; see n. 25, supra. Additional publication of the provisions of the Act - which the dissent admits would be constitutionally sufficient, see post, at 542-544, n. 2 - was not constitutionally required.
[ Footnote 28 ] "The ways so an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. When the state within which the owner has located such property seizes it for some reasons, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either had abandoned it, in which case proceedings against it deprive him of nothing, cf. Anderson National Bank v. Luckett, 321 U.S. 233 ; Security Saving Bank v. California, 263 U.S. 282 , or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U.S. 241 ; Huling v. Kaw Valley R. Co., 130 U.S. 559 . As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, `It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.'" 339 U.S., at 316 .
The Court in Mullane emphasized that "[i]n the case before us there is, of course, no abandonment." Ibid.
The dissent attempts to distinguish Mullane on the ground that, unlike the tangible interests that the Court in that case stated could be subject to an assumption of abandonment, the present case concern "incorporeal interests" that have not been "directly attacked, sized, possessed, used, or depleted." Post, at 548, 549. We do not believe, however, that the State's assumption of abandonment in these cases is improper. As the Indiana [454 U.S. 516, 536] Supreme Court described, interests or estates in oil, gas, coal, and other minerals lying beneath the surface of the land are "interests in real estate," ___ Ind., at ___, 406 N. E. 2d, at 627; oil, gas, coal, and other minerals are tangible interests that may be used and developed by a mineral owner. Moreover, the length of the period that is afforded to a mineral owner to use the interest, the variety and minimal extent of the actions that constitute a statutory use, and the length of the statutory grace period are sufficient to entitle the State to indulge in the assumption that - if no statutory use is made in a 20-year period and no statement of claim is filed in the 2-year grace period, if applicable - the mineral owner has abandoned the property. We need not decide today whether the State may indulge in a similar assumption in cases in which the statutory period of nonuse is shorter than that involved here, or in which the interest affected is such that concepts of "use" or "nonuse" have little meaning.
[ Footnote 29 ] Bell v. Burson, 402 U.S. 535 .
[ Footnote 30 ] Fuentes v. Shevin, 407 U.S. 67 .
[ Footnote 31 ] Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 .
"The main thrust of Georgia's argument is that it need not provide a hearing on liability because fault and liability are irrelevant to the statutory scheme. We may assume that were this so, the prior administrative hearing presently provided by the State would be `appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). but `[i]n reviewing state action in the area . . . we look to substance, not to bare form, to determine whether constitutional minimums have been honored.' Willner v. Committee on Character, 373 U.S. 96, 106 -107 (1963) (concurring opinion). And looking to the operation of the State's statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act." 402 U.S., at 541 (emphasis supplied).
"We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, `A law which punished conduct which would not be blameworthy in the average members of the community would be too severe for that community to bear.,'" 335 U.S., at 229 .
Lambert concerns the mens rea that is necessary before the State may convict an individual of crime. See United States v. Freed, 401 U.S. 601 ; United States v. International Minerals & Chemical Corp., 402 U.S. 558 . Its application has been limited, lending some credence to Justice [454 U.S. 516, 538] Frankfurter's colorful prediction in dissent that the case would stand as "an isolated deviation from the strong current of precedents - a derelict on the waters of the law." 355 U.S., at 232 .
[ Footnote 34 ] The dissenting opinion suggests that as a practical matter notice must precede any attempt to develop a lapsed mineral estate, see post, at 553-554, and that there is thus no reason not to require notice in advance of the lapse itself. This suggestion ignores the fact that, independent of the interest in facilitating the development of mineral rights, the State has an interest in eliminating fractured mineral estates that were created long ago, have been unused for the statutory period, and create uncertainties in titles records. As stated by the Indiana Supreme Court, "[t]the purposes of this Act . . . are to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources." ___ Ind., at ___, 406 N. E. 2d, at 630. The State legitimately may treat a mineral interest that had been unused for the statutory period and for which the owner has not bothered to file a statement of claim as worthless and abandoned; the State has an interest in eliminating such encumbrances from title records. Moreover, if a mineral interest has been inactive for a sufficient period of time, a developer may well decide the at notice is entirely unnecessary. Title opinions and title insurance, based normally on a through search of county records, may be sufficient to assure a potential developer that an ancient and dormant mineral estate, like other possible clouds on title, is without legal significance. In any event, the question in these cases is whether additional notice is constitutionally required, and not whether such notice might better serve the purposes of the statute.
[ Footnote 35 ] See n. 8 supra.
[ Footnote 36 ] "Minerals exist within the earth in strata and formations which do not necessarily coincide with the manner in which man has chosen to divide the surface area. consequently it is commonly necessary to assemble several mineral interests in order to render the extraction of minerals safe and profitable. The Legislature could reasonably have concluded that those meeting the criteria set forth above include those most likely to assemble such interests and actually produce minerals. The separate classification of interests so held with these essential clusters is rationally related to the legitimate objectives of the enactment and is consequently not contrary to the requirements of the state and federal equal protection." ___ Ind., at ___, 406 N. E. 2d, at 631-632.
JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE POWELL join, dissenting.
There is no measurable dispute in these cases concerning Indiana's power to control, define, and limit interests in land within its boundaries. Nor is there any question that Indiana has a legitimate interest in encouraging the productive use of land by establishing a registration system to identify the owners of mineral rights. Nor indeed is there any question that extinguishment of a mineral owner's rights may be an appropriate sanction for a failure to register., The question presented here is simply whether the State of Indiana has deprived these appellants of due process of law by extinguishing their pre-existing property interests without regard to whether they knew, and without providing any meaningful mechanism by which they might have learned, of the imminent taking of their property or their obligations under the law.
As to one class of mineral interest owners, there is no question that the statute is a constitutionally proper exercise of the State's power. Every mineral interest in land carved from the fee after the effective date of the statute was carved subject to the statute's limitations. In prospective application the statute simply provides that any instrument purporting to transfer a mineral interest carries with it the implicit condition that unless the transferee uses the land within the meaning of the statute, his interest wills revert to the transferer. It is only whether State seeks to change the fundamental nature of a property interest already in the hands of its owner that the operative restrictions of both the Takings Clause and the Due Process Clause come into play.
"It does not follow, however, that what [a State] can legislate prospectively it can legislate retrospectively. The retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16 -17 (1976).
There is much to be said for the maxim upon which the Court places its principal reliance in upholding the retrospective application of this statute: that each citizen may be [454 U.S. 516, 544] charged with knowledge of the law. 3 The justification for that rule is its necessity. As a practical matter, a State cannot afford notice to every person who is or may be affected by a change in the law. But an unfair and irrational exercise of state power cannot be transformed into a rational exercise merely by invoking a legal maxim or presumption. If it is to survive the scrutiny that the Constitutional retries us to afford laws that deprive persons of substantial interests in property, an enactment that relies on the presumption of knowledge must evidence some rational accommodation between the interests of the State and fairness to those against whom the law is applied. Cf. Vlandis v. Kline, 412 U.S. 441 (1973). By acknowledging that there is some limit to the exercise of legislative power to transform the interests of persons in property, we do not depart from the principle of utmost deference to the judgment of the legislature to reach those accommodations in the first instance. But the Constitutions puts even our most cherished legal maxims and presumptions to the test of fairness and rationality in light of common experience. "[I]n passing on the constitutionality of a state law, its effect must be judged in the light of its practical [454 U.S. 516, 545] application to the affairs of men as they are ordinarily conducted." North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925).
"[W]e deal here with conduct that is wholly passive - mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that [454 U.S. 516, 546] should alert the doer to the consequences of his deed. The rule that `ignorance of the law will not excuse' is deep in our law, as is the principle that of all the powers of local government, the police power is `one of the least limitable.' On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. . . .
"Registration laws are common and their range is wide. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. . . . [T]his appellant no first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent." Id., at 228-229 (emphasis added) (citations omitted).
The opinion of the Court suggests that the presumption of knowledge of the law is not unreasonable in cases such as these because it is a customary feature of property ownership that the landowner monitor the Acts of the legislature that may affect his interest. Ante, at 532. The Court would appear to treat property owners as businessmen, of whom we do indeed expect the greatest attentiveness to regulatory obligations in the conduct of their business affairs. But neither our cases nor our experience supports the Court's supposition about the diligence reasonably expected of property owners. Property owners have historically been allowed to rest easy in the knowledge that their holding is secure, absent some affirmative indication to the contrary; to rely on the general practice that "[n]otice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure [454 U.S. 516, 548] to act." Lambert v. California, 355 U.S., at 228 . Surely no contrary understanding of the obligations or property ownership could be attributed to the mineral interest owners of Indiana. It was there historic complacency, heretofore undisturbed by statutory obligation, that prompted the State of Indiana to install the regulatory regime at issue here.
"[P]ublication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack on his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention,. when the state within which the owner has located such property seizes if for some reason, publication or posting affords and additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against in deprive him of nothing, or that he has left some caretaker under a duty to let him know that it is being jeopardized." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 316 (1950) (emphasis added; citations omitted).
It may be reasonable to expect property owners to maintain sufficient awareness of their property to mark those situations in which the property is physically disturbed with some scrutiny of their duties and obligations under the law. The owners of the incorporeal interest at issue here are [454 U.S. 516, 549] hardly in a similar situation. There is no event or circumstance to which they might have turned their powers of observation; nothing has ben directly attacked, seized, possessed, used, or depleted. The only "caretaker" who could have guarded the interest of appellants from the silent actions of the legislature and the surface owner, is a caretaker charged with the responsibility of daily surveillance over happenings in the state legislature. In light of "the affairs of men as they are ordinarily conducted," a State may not constitutionally attribute to each citizen the foresight, or the continuing duty, to maintain a lobbyist in the state capital in order to guard his property from extinguishment.
The Court also relies on cases involving the application of legislatively foreshortened limitations periods to causes of actions that have already vested. Ante, at 532. But those case illustrate, rather than refute, the constitutional principle that reliance on the maxim of presumed knowledge of the law is limited by the reasonableness of applying that maxim in a particular class of cases. The Court has upheld retroactive adjustments to a limitations period only when the legislature has provided a grace period during which the potential plaintiff could reasonably be expected to learn of the change in the law and then initiate his action. In the context of a retrospective statute of limitations, a reasonable grace period provides an adequate guarantee of fairness. Having suffered the triggering event of an injury, a potential plaintiff is likely to possess a heightened alertness to the possibly changing requirements of the law bearing on his claim. Because redress necessarily depends on recourse to the State's judicial system, the State is free to condition its intervention on rules of procedure, and further, to impose on the potential plaintiff the obligation to monitor changes in those rules. Plaintiffs, and their attorneys, are so aware.
The situation of appellants here is not at all similar. The statute does not operate upon the dormant mineral interest owner after he has suffered some direct affront to his property such that he might reasonably be called upon to increase [454 U.S. 516, 550] his awareness of his legal obligations. The mineral interest owner has not been derelict in pressing rights against third parties such that the State may reasonably assume he has abandoned his interest. The mineral interest owner has no reason to anticipate an occasion for state assistance, and thus no reason to monitor the ground rules upon which the State conditions its aid. In these cases the State has taken the initiative in seeking to regulate heretofore unregulated incorporeal interests in land under circumstances in which a need for heightened activeness to the law cannot reasonably be apprehended by the mineral interest owner. In these circumstances, the empirical foundation of the assertion that passage of a statute will create knowledge of its provisions is at its weakest.
This does not end the inquiry, for the State may have an identifiable interest in not making provision for notice in a particular circumstance. If there were such an interest, the Constitution would not lightly supplant the legislative judgment. I thus turn to the asserted interests of the State in the procedure established here.
It is plain that that sheer impracticality makes it implausible to expect the State itself to apprise its citizenry of the enactment of a statute of general applicability. The State may, however, feasibly provide notice when it asserts an interest directly adverse to particular persons, and may in the circumstance be constitutionally compelled to do so. That is not the situation presented in these cases, for the mineral interest owner's failure to comply with the statute results in neither a fine nor an escheat. Rather, his interest is effectively transferred to the surface owner. While the State is not disinterested, as a policy matter, in whether the mineral interest owner files a notice of claim, it sanctions a failure to comply by adjusting the relative rights of the mineral interest owner as against another citizen. In this context it is [454 U.S. 516, 551] again helpful to examine - and contrast - the reasons supporting the lack of notice in the context of retrospectively applied limitations periods.
First, statutes of limitations "are partial and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost." Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945). The very interest asserted by the State in imposing a statute of limitations - avoiding trial of stale claims - would be defeated by extending the time in which the plaintiff may bring his suit until such time as he may learn of the existence of the statute or the fact that it may soon run. In addition, with respect of statutes of limitations, pre-expiration notice is, as a practical matter, impossible: The potential defendant may not be aware of the potential plaintiff's injury, let alone the plaintiff's future intention to sue. Under these circumstances the potential defendant cannot be expected to monitor the law on behalf of his future - perhaps unknown - adversary. In sum, a State need not make provision for notice with respect to the retroactive application of a statute where it would defeat a legitimate State interest, or would be infeasible in the context of the statutory scheme.
In these case, Indiana asserts an interest in ensuring the productive use of land within its boundaries, and particularly in promoting the exploitation of land containing energy resources such as coal, gas, and oil. The existence of stale and abandoned mineral interests impedes the development of those mineral resources, and hinders the development of the surface as well, by preventing the willing buyer from making contact with a willing seller. To facilitate the operation of the market with respect to mineral development, Indiana has required, by the statute at issue here, that the mineral interest owner file a statement of his claim once every 20 years, or suffer extinguishment of his unused interest. This minimal burden on the mineral rights owner is intended to ensure that [454 U.S. 516, 552] the interest owner is identifiable, and thus suffices to maintain his accessibility to potential purchasers. Should the notice not be filed, the State's interest in identification is equally well served: the surface owner, presumably identified readily by virtue of his interest in a parcel of tangible property, becomes the beneficiary of the mineral interest owner's default. By facilitating identification of the owners of the mineral interest, the statute permits the will in buyer - presumably someone who would wish to put the land to productive use - to locate the presumably willing seller, and thus reach the type of deal that could lead to an economically productive use of the land. with respect tot he treatment of mineral interest owners, such as appellants here, whose 20-year period had run or partially run as of the date of the enactment, the State's interest is no different. Although the operative period may be abbreviated, the State seeks only to ensure either use, or identification.
It is difficult to conceive how the State's interest is served by not requiring the surface owner to notify the mineral rights owner before taking title to his interest; I do not understand either the private appellees, or the State of Indiana as intervener, to identify and affirmative state interest in failing to provide for pre-extinguishment notice. It might be supposed that a requirement of pre-extinguishment notice by the surface owner would present an untoward economic burden on the surface owner that would impede the purposes of the statute or would otherwise be inconsistent with the statutory framework. But it is plain on the face of the statute that this is not so.
"Any person who will succeed to the ownership of any mineral interest, upon the lapse thereof, may give notice of the lapse of such mineral interest by publishing the same in a newspaper of general circulation in the county in which such mineral interest is located, and, if the address of such mineral interest owner is shown of record or can be determined upon reasonable inquiry, by mailing within ten days after such publication a copy of such notice to the owner of such mineral interest. The notice shall state the name of the owner of such mineral interest, as shown of record, a description of the land, and the name of the person giving such notice. If a copy of such notice, together with an affidavit of service thereof, shall be promptly filed in the office of the Recorder of Deeds in the county wherein such land is located, the record thereof shall be prima facie evidence, in any legal proceedings, that such notice was given." Ind. Code 32-5-11-6 (1976).
Because no surface property owner could claim clear title to the mineral interest absent such notice - or else a potential purchaser would suffer the possibility that some holder of 10 [454 U.S. 516, 554] or more interests might late come forward to claim his rights - such notice is, in practical operation, likely to be provided in every case. The only difficulty is that as construed by the Court today, the statutory notice comes too late for mineral interest holders in the position of appellants to assert their continued interest in their property rights. Because it is clear to me that a form of pre-extinguishment notice, procedurally comparable to that statutorily provided with respect to owners of 10 interests or more, is entirely consistent with the asserted legislative purpose, I would hold that such notice was constitutionally required before a person, otherwise without notice of his obligations under the statute, might be deprived of his property "by operation of law."
In the exercise of a State's police powers, and perhaps particularly with respect to matters involving the regulation of land, we owe the judgments of state legislature great deference. Nevertheless, the Due Process Clause of the Fourteenth Amendment was designed to guard owners of property from the wholly arbitrary actions of state governments. As applied retrospectively to extinguish the rights of mineral interest owners for their failure to have made use of their interests within a prior 20-year period, Indiana's statutory scheme would likely effect an unlawful taking of property absent the proviso that such mineral interest owners could preserve their rights by filing a notice of claim within the 2-year grace period. Given the nature of the scheme established, there is no discernible basis for failing to afford those owners such notice as would make the saving proviso meaningful. As applied to mineral interest owners who were without knowledge of their legal obligations, and who were not permitted to file a saving statement of claim within some period following the giving of statutory notice by the surface owner, the statute operates unconstitutionally. In my view, under these circumstances, the provision of no process simply cannot be deemed due process of law. I respectfully dissent.
"Any interest in coal, oil, gas, and other minerals, shall, if unused for a period of 20 years, be extinguished, unless a statement of claim is filed in accordance with section five [32-5-11-5] hereof, and the ownership shall revert to the then owner of the interest out of which it was carved."
"when there are any minerals produced thereunder or when operations are being conducted thereon for injection, withdrawal, storage or disposal of water, gas or other fluid substances, or when rentals or royalties are being paid by the owner thereof for the purpose of delaying or enjoying the use or exercise of such rights or when any such use is being carried out on any tract with which such mineral interest may be unitized or pooled for production purposes, or when, in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of such mineral interests, or when taxes are paid on such mineral interest by the owner thereof. Any use pursuant to or authorized by the instrument creating such mineral interest shall be effective to continue in force all rights granted by such instrument." Ind. Code 32-55-11-3 (1976).
"The statement of claim provided in section one above [32-5-11-1] shall be filed by the owner of the mineral interest prior to the end of the twenty year period set forth in section two [one] [31-5-11-1] or within two years after the effective date [September 2, 1971] of this act, whichever is later, and shall contain the name and address of the owner of such interest, and description of the land, on or under which such mineral interest is located. Such statement of claim shall be filed in the office of the Recorder of Deeds in the county in which such land is located. Upon the filing of the statement of claim within the time provided, it shall be deemed that such mineral interest was being used on the date the statement of claim was filed." Ind. Code 32-5-11-4 (1976).
[ Footnote 2 ] In an attempt to support its refusal seriously to inquire into the adequacy of the protections afforded minerals interest owners by which they might preserve their property, the Court analogizes the Indiana statute to a Recording Act and draws on the pre-Fourteenth Amendment case of Jackson v. Lamphire, 3 Pet,. 280 (1830). Ante, at 528-529, 532. The Court's reliance is misplaced. In Jackson v. Lamphire, supra, we recognized that the manner of implementing a Recording Act is to be left to the [454 U.S. 516, 543] discretion of the legislature in the first instance. but we also recognized the nature limits of the legislative authority.
"The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law on those subjects may be so unreasonable as to amount to a denial of a right, and call for the interposition of the court; but the present is not one." Id., at 290 (emphasis added).
"in all case where there are filed or recorded . . . two or more deeds from one and the same person, or in the same right to different persons, if any person interested under either of them shall neglect to make his claim, and in all cases where several persons appear to have claims to one and the [454 U.S. 516, 544] same piece of land, and any of them do not appear before the said commissioners, they shall cause a notice to be published in the newspapers aforesaid, and continued for six weeks, requiring all persons interested in such land to appear at a certain time and place therein mentioned, not less than six months from the date of such notice, and exhibit their claims to the same land." Id., at 284 (emphasis added).
If the Indiana statute at issue in these cases provided a 2-year period in which mineral interest owners could assert their interests, following notice by publication, as provided in the New York Act at issue in Jackson v. Lamphire, I would readily agree that the Indiana statute was reasonable even as applied to existing mineral interests. Absent such notice, the 2-year grace period provided by Indiana is constitutionally meaningless.
[ Footnote 3 ] Despite suggestive references to cases involving abandonment of property, ante, at 526-528, the Court does not rest on the argument that failure to comply with the provisions of the Indiana statute implies abandonment. Nor could the Court so rest. The very cases cited by the Court [454 U.S. 516, 545] demonstrate that the finding of abandonment with respect to rights in land has historically been associated with the property owner's failure to pursue legal remedies over the course of some legislatively established period of time. See Wilson v. Iseminger, 185 U.S. 55 (1902); Hawkins v. Barney's Lessee, 5 Pet. 457, 466-467 (1831). The mineral interest owners in these cases plainly have not been derelict in pressing their rights. Until their interests were extinguished "by operation of law" they simply had no occasion to pursue any legal action. Moreover, that mineral interest owners may have failed to exploit their interest for 20 years, during which period it may not have ben economically feasible to extract minerals from the property, and during which period there was no statutory obligation to use the interest in any manner, does not suggest abandonment. Cf. Provident Savings Institution v. Malone, 221 U.S. 660, 664 (1911). Nor can the intent to abandon, or any independent state interest supporting the Indiana statute, be found in appellants' failure to pay taxes. At no time have taxes been separately assessed with respect to the reserved mineral interest in No. 80-1018. App. in No. 80-1018, p. 7. While the record is slightly more ambiguous with respect to No. 80-965, appellees conceded at oral argument that the counties of Indiana generally do not assess taxes on mineral interests that are neither in use nor in the process of development. Tr. of Oral Arg. 25.
[ Footnote 4 ] Because Lambert involved the imposition of criminal sanctions, giving rise to a rigor in the application of due process standards that would be inappropriate where only interests in property are at stake, it cannot control the disposition here. But the rigor with which the due process test was applied in Lambert is worth nothing. The city's interest in that case lay in identifying felons within its boundaries. The ordinance failed for want of notice. But it is difficult to conceive how the city might have contrived an ordinance, effecting the same purpose, short of informing every person who entered the city that if he was a convicted felon he was obliged to register with the police. Because it was the singular purpose of the city to identify felons, individualized notice was simply incompatible with the legislative purpose. Nevertheless, we held the ordinance unenforceable. As well be noted below, the requirement of prior notice with respect to the registration scheme at issue in these cases, does not limit the ability of the State to further its asserted objectives. See infra, at 551-554.

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What do Peter Parker, Clark Kent and Paul Bierly have in common? They all disguise their superpowers behind a mild-mannered, congenial demeanor. In the world of litigation where the stakes are high, deadlines are tight, and cases are often won or lost on written briefing, Paul is an unflappable force and potent weapon.
Paul focuses his practice on brief writing for complex litigation and appeals. He has authored countless briefs and motions that resulted in favorable opinions and outcomes for clients. Paul has also consistently obtained favorable appellate judgments for clients in the Oregon and Washington Courts of Appeal, as well as in the Ninth Circuit Court of Appeals. He is part of Markowitz Herbold’s Appellate Group.
Representing a family-owned ranch in Southern Oregon against claims by minority shareholders; successfully obtained a reversal in the Ninth Circuit Court of Appeals.
Representing a widow who sued for benefits under an accidental death insurance policy; successfully obtained a reversal in the Ninth Circuit Court of Appeals.
Representing a construction company in its efforts to obtain insurance coverage for an on-site accident; successfully obtained a reversal in the Washington Court of Appeals.
Representing one faction of a closely-held family company after the family entered into a settlement agreement; successfully obtained an affirmance in the Oregon Court of Appeals that the agreement was enforceable.
Representing a prominent commercial real estate appraiser against claims for professional negligence related to a business property appraisal; successfully settled the dispute on terms favorable to client before a ruling by the Oregon Court of Appeals.
Representing a widow in a suit against an insurance company that had denied claims under a life insurance policy; insurer paid policy limits after oral argument in the Ninth Circuit Court of Appeals.
Paul is also the firm’s go-to lawyer when clients need advice on insurance disputes. He literally wrote the book, the Oregon Bar’s Continuing Legal Education binder, on how insurance policies should be construed in Oregon.
After obtaining his law degree, Paul clerked for the Alaska State Courts, and then for Judge H. Russell Holland of the United State District Court for the District of Alaska. While there, he gained experience on such diverse matters as Indian sovereignty rights, admiralty law, savings and loan defaults and corporate bankruptcies. Before joining the firm in 2000, Paul practiced at another leading Northwest law firm where he worked on a wide variety of cases, ranging from the Exxon Valdez case and tobacco litigation to small pro bono disputes. In addition to his regular practice, Paul served as a member of the Oregon Board of Bar Examiners from 2001 to 2004.
Away from the office, Paul has enjoyed participating in Olympic-style weightlifting for over a decade. In addition, he is a certified judge for the USA Weightlifting Federation. He organizes and runs meets, and judges Olympic-style weightlifting competitions several times a year in the Pacific Northwest.
Leslee Scallon, et al. v. Henry Enterprises, Inc.
Represented a small, family-owned ranch and vineyard in Southern Oregon. Minority owners of the closely-held company brought shareholder derivative claims against the company and some of the majority shareholders. The majority members exercised their statutory right to buy out the plaintiffs' shares in the company. The trial court concluded that the statutory buy-out remedy did not apply in shareholder derivative suits. We obtained a reversal of that ruling in the Ninth Circuit Court of Appeals, which held that the statutory buy-out remedy applies in both direct shareholder suits and derivative shareholder suits.
Represented utility company in a series of multi-million-dollar customer disputes over billing, compliance with rate schedule and electricity exchange program. Resolved prior to trial.
Rex R. Scoggins, et al. v. Douglas A. Nidiffer, et al.
Successfully defended President and Chief Executive Officer of C&K Market, Inc. against claims for breach of fiduciary duty and alleged minority shareholder oppression, among other things. Case successfully settled in favor of our client.
Markowitz Herbold successfully defeated all legal malpractice claims against its client in the United States District Court for the District of Oregon. Plaintiff alleged that it suffered $60 million in damages when an arbitrator enforced an oral, unsigned settlement agreement which led to the dismissal of Lanham Act, warranty, contract, and tort claims in California. Judge Hernandez dismissed the legal malpractice claim with prejudice on all counts, ruling that the claims had no merit because plaintiff could not prove causation as a matter of law.
Trustmark Insurance Company v. C&K Market, Inc.
Defended C&K Market against contract rescission claims brought by its self-funded pension plan’s stop loss insurance provider. Case was successfully settled.
Mlodinoff v. Sony Online Entertainment et al.
Represented three Sony companies and Best Buy against multi-million dollar product liability claims for design defect and failure to warn arising from on-line computer game. Settled after defendants filed summary judgment motions.
Successfully obtained a permanent injunction for iovation, enforcing a noncompetition provision in an employment agreement.
Successfully represented Boyd Coffee Company in a wage and hour class action in Washington State.
Represented widow to recover death benefits on life insurance policy in claim against insurer. Prevailed on appeal.
Oregon Public Employees' Retirement Board v. Simat, Helliesen & Eichner, et al.
Represented Oregon public employee pension fund in claims against financial investment advisor for malpractice and against developers for fraud and piercing the corporate veil arising from multimillion dollar investment in aircraft maintenance facility. Financial investment advisor settled prior to trial. Trial court entered judgment against developer for the pension fund, and Court of Appeals affirmed $34.5 million judgment to pierce the corporate veil based on corporate assets. Settled on petitions for review to Oregon Supreme Court.
Represented insurer against claims for long term disability benefits under ERISA. Obtained summary judgment in favor of insurer overcoming arguments that the California insurance commissioner had disapproved of discretionary clauses in insurance contracts.
Obtained declaratory judgment that union's grievances over 401(k) losses sustained from the collapse of Enron were not subject to grievance and arbitration procedures. The Oregon Court of Appeals dismissed the IBEW's appeal.
Columbia Helicopters, Inc. v. Carson Helicopters, Inc.
Represented Columbia Helicopters in a case to enforce a contractual indemnity obligation involving the tragic death and maiming of 14 men when a helicopter operated by Carson Helicopters crashed in the Shasta National Forest during firefighting operations. We obtained a summary judgment ruling that required Carson to indemnify Columbia for defense costs associated with lawsuits arising from the crash. Carson appealed the ruling on its indemnity obligation and the Ninth Circuit affirmed the District Court’s opinion.
Mukesh R. Patel, et al. v. Alkesh Patel, et al.
Digimarc Corporation v. IV Digital Multimedia Inventions, LLC, et al.
Represented Digimarc Corporation in an arbitration concerning disputes relating to calculation of potential profit sharing payments under Digimarc’s patent license with licensee Intellectual Ventures. The parties resolved all matters pending in the arbitration. The terms of the settlement are confidential.
Represented clients in a bench trial on a petition to reopen the estate of the clients’ deceased brother, who they suspected had been financially abused by the personal representative of the estate. The court held that the personal representative’s conduct “shocked the conscience” and local prosecutors then used the trial record to secure a felony conviction against the personal representative.
Represented an accomplished appraiser of commercial real estate in the Oregon Court of Appeals. Client had been hired by a prospective purchaser of a large tract of land to review an appraisal of the property. When the prospective purchaser declined to buy the land, the seller sued client for intentional interference with business relations and breach of contract under a third-party beneficiary theory. Another law firm represented our client in the trial court, and referred the case to the firm for the appeal. We found a favorable way to resolve the dispute before the Court of Appeals issued a ruling.
In a related suit, Markowitz Herbold sued the appraiser’s insurance brokers after they failed to procure appropriate liability insurance for him. The insurance dispute was resolved quickly on favorable terms through an informal document exchange and mediation.
Defended community bank against contract, negligence and Uniform Commercial Code claims arising from $5 million embezzlement by plaintiff's financial controller. Successfully defeated negligence claims on summary judgment. Obtained jury verdict for the bank on all remaining claims after three-week trial.
Kassab v. Phoenix Home Life Mutual Insurance Co.
Represented estate to recover death benefits on life insurance policy in claim against insurer. Settled following appellate argument.
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Pro se appellant Kenyotta Timmons appeals from the District Court's order granting the motion of appellee Commissioner of Social Security (“Commissioner”) to dismiss his complaint for lack of subject matter jurisdiction. For the reasons stated herein, we will affirm in part, vacate in part, and remand to the District Court for proceedings consistent with this opinion.
From the complaint and other filings in the District Court, we glean the following facts. Timmons requested a hearing with an Administrative Law Judge (“ALJ”) alleging that the Commissioner had incorrectly determined that his disability had ceased. A hearing was scheduled, and Timmons was sent a notice which, among other things, set forth the time and place of the hearing, advised him that he was responsible for his transportation costs, and warned him that failure to appear at the hearing without good cause would result in automatic dismissal of his hearing request.
On the day of the hearing, Timmons called the hearing site and explained that he would not be attending the hearing because he could not afford the transportation costs. He also sent a letter to the Commissioner, which belatedly asked for a postponement of the hearing on the basis that he was “[i]ndigent having not enough money to[ ] pay for transportation costs to this hearing today.” On that same day, the ALJ issued and sent him a request to show cause for failure to appear with instructions to return a written explanation of why he did not come to the hearing.
In his response to the request to show cause, Timmons again explained that he was “indigent” and unable to afford to travel to the hearing site; he also explained that he did not go to the hearing because of “[e]pile[p]tic seizure and ongoing continuous relapse of [his] disability condition.” The ALJ, in his subsequent order of dismissal, noted that Timmons had been notified that his transportation costs were not payable to the hearing site, and concluded that the inability to pay such costs did not constitute good cause for having missed the hearing. Timmons requested review by the Appeals Council. The Appeals Council denied his request for review.
Timmons then filed a civil action in the District Court, seeking judicial review of the administrative proceedings. The Commissioner moved to dismiss the complaint for lack of subject matter jurisdiction, on the basis that Timmons's failure to attend the hearing meant that he had failed to obtain a final decision that would permit judicial review of the merits of his claim. The District Court granted the motion and dismissed the case for lack of subject matter jurisdiction. The District Court further concluded that Timmons's complaint did not present any constitutional issue over which it could exercise jurisdiction.
This appeal followed. We have jurisdiction to review the District Court's order under 28 U.S.C. § 1291. Our review of the dismissal of Timmons's complaint for lack of subject matter jurisdiction is plenary. Tobak v. Apfel, 195 F.3d 183, 185 (3d Cir. 1999).
The District Court's jurisdiction over claims arising under the Social Security Act is provided by 42 U.S.C. § 405(g), which states, in relevant part, that an “individual, after any final decision of the Commissioner of Social Security made after a hearing ․ may obtain a review of such decision by a civil action.” The Supreme Court has stated that § 405(g) “clearly limits judicial review to a particular type of agency action, a ‘final decision’ of the [Commissioner] made after a hearing.” Califano v. Sanders, 430 U.S. 99, 108 (1977). But these exhaustion requirements may be waived where the claimant alleges a colorable claim implicating a constitutional issue. See id. at 108-09; Bacon v. Sullivan, 969 F.2d 1517, 1521-22 (3d Cir. 1992).
In part of his complaint, Timmons discussed the decision to terminate his benefits and stated that a Social Security representative should have accessed his medical and hospitalization records. Complaint at 2. As recounted above, Timmons did not attend his scheduled hearing, and the ALJ dismissed Timmons's hearing request for failure to show good cause for having missed the hearing. Accordingly, because no hearing was ever held, the District Court was correct that no “final decision” had been made, and it thus lacked jurisdiction under § 405(g) to review the disability determination. See, e.g., Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir. 1992) (per curiam) (holding that district court lacked subject matter jurisdiction under § 405(g) where Social Security claimant, by refusing to attend scheduled ALJ hearing, failed to exhaust administrative remedies upon which judicial review depends).
For the foregoing reasons, we will affirm the dismissal order to the extent the District Court concluded that it lacks subject matter jurisdiction under § 405(g) over the adverse disability determination, but we will otherwise vacate the order and remand this matter to the District Court for further proceedings, including the consideration of Timmons's constitutional claim.
1. The ALJ may not have considered Timmons's response to the request to show cause. The ALJ's order of dismissal only refers to Timmons's statement that he was “[i]ndigent having not enough money to [ ] pay for transportation costs to this hearing today.” But that statement is not taken from Timmons's response to the request to show cause – it appears in the letter that Timmons sent the Commissioner on the day of the hearing.
2. In his complaint, Timmons challenged the decision to deny him a hearing as much or more than the decision to deny him benefits. However, he did not present arguments about the decision to deny him review because of his inability to attend the hearing until the end of his reply brief. (He also discussed the issue in a subsequently filed letter in support of his appeal). Absent extraordinary circumstances, an appellant's failure to raise and argue an issue in his opening brief results in the waiver of that issue on appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (citing Federal Rules of Appellate Procedure 28 and Local Rule 28.1); see also Al-Ra'Id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (noting that pro se litigants are not excepted from this requirement). Under the circumstances of this case, we conclude that it is appropriate to consider whether Timmons stated in his complaint a colorable claim that he was deprived of his right to the due process of law when the ALJ denied him review without a hearing. Cf. Gambino v.Morris, 134 F.3d 156, 168-69 (3d Cir. 1998). And we note that the Commissioner will not be prejudiced by our consideration of this issue; in its response brief, the Commissioner addressed the issue of whether Timmons stated a colorable constitutional claim over which the District Court had jurisdiction. Cf. id.