dissenting.
Respectfully, I dissent. The decision to deny the Stearns Company just compensation for the taking of its property is a miscarriage of justice, an indefensible injury to this property owner and, as a precedent, a serious threat of the abuse of state power against all property owners.
It is an inescapable fact that the Kentucky Wild Rivers Act, both as originally enacted in 1972 and as reenacted in 1976, substantially deprives Stearns of the commercial use of its property for the benefit of the general public, resulting in a significant diminution in the value of the property. I see no difference between this taking and any other taking for a public easement. A property owner continues to hold fee simple, but has lost many of the rights that were a concomitant of such ownership.
The only question is whether the taking should be classified as an inverse condemnation or an exercise of the state’s police power. Both the nature of the taking and the Act itself answer this question in Stearns’ favor:
“Nothing in KRS 146.200 to 146.360 shall be construed to deprive a landowner of the fee simple title to or lesser interest in his property without just compensation.” KRS 146.280(1)
As Justice Palmore said in his concurring opinion in Commonwealth ex. rel. D.N.R. and E.P. v. Stephens, Ky., 539 S.W.2d 303, 309 (1976), speaking of the 1972 Act:
“The restrictions contained in KRS 146.-290, though probably intended to become effective upon designation of the boundaries pursuant to KRS 146.250, so substantially reduce the owners’ private property rights that they (the restrictions) exceed the traditional scope of the police power and therefore cannot take effect unless and until the owners are paid just compensation for the loss of those rights.”
As Justice Jones said in his dissenting opinion in the same case:
“The legislative scheme to preserve the beauty in the designated areas was never intended to be accomplished by imposing the burden of the cost and a restriction of use on the owners of property within the designated area.” Id. at 310.
Stephens, supra, answers the question “whether the police power of the state could be stretched so as to destroy previously existing rights of property and contract” in the area covered by the Wild Rivers Act. It holds that the police power of the state does not extend to cover the taking contemplated by the Act. It adopts as the applicable principle the following language from Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922): “The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. * * ”
The 1976 amendment to the Wild Rivers Act does not change the essential character of the Act. It remains a use of private property for public benefit in a manner that prevents commercial use of the property. As shown by the facts in this case, the section of the Act authorizing permits for commercial use is largely illusory. Strip mining of coal is still completely prohibited. Deep mining will be in direct conflict with the Act since it is clear that no management plan permitting it would be “consistent with the purposes of the Act.”
In fact, no management plan has been developed under which to apply. Secretary Bell of the Department for Natural Resources and Environmental Protection testified in his deposition on June 24, 1977 that he would not allow deep mining or strip mining or road building or construction of buildings in a Wild Rivers area. *385Since Secretary Bell knew that his Department had been sued for twenty million dollars when he testified, his testimony must be given great weight.
The action by the Department in printing brochures inviting public use, putting up signs and surveying the area effectively deprived the owner of commercial use of this property. It is true that the boundaries of the area were not “officially” designated by the Department until July 21, 1976, after the 1976 amendment which purports to allow a system of permits, and that Stephens, supra, refers to the 1972 Act as enabling rather than confiscatory until such time as these boundaries have been officially designated.
The majority opinion states, “This Court held (in Stephens) that these maps did not meet the statutory requirement of designating the boundaries.” Actually, it appears from the decision in Stephens that in that case both sides “advised (the Court) that the Secretary for the Department for Natural Resources has not as yet determined the boundaries of the stream area of the location with which we are concerned.” 539 S.W.2d 308. Further, the opinion states:
“The landowners’ motion to dismiss called to the trial court’s attention the fact that no boundary designation had been made ...” 539 S.W.2d 308.
The opinion in Stephens seems to proceed unaware that a designation had in fact taken place, that all that remained was the official imprimatur.
We should not decide this case on any point so transparently hypocritical as the cosmetic changes effected by the 1976 Act. The trial court reached through the facade to the operative facts in this case and we should do the same. The acts of the Department preparatory to officially designating the area from which commercial use was prohibited and in taking control of the property for public use went much too far to be ignored. The majority opinion designates posting signs inviting public use as “improper,” but not evidence of a taking. I deem it confiscatory.
The majority concludes that “(t)he conduct (of the state officials and employees) in our case, although arbitrary, does not rise to a taking.” These officials and employees were not arbitrary. They were simply carrying out their responsibilities as the Act permitted and as assigned to them. In doing so they were creating a public easement on Stearns’ property for which Stearns was entitled to just compensation. The then Secretary for the Department of Natural Resources and Environmental Protection testified that his “concept” of carrying out the Act was “freezing” all commercial activity with the Wild Rivers area indefinitely without compensating private owners.
The sale of a portion of that property to the Federal government was presumably a sale at its fair market value, as diminished in view of the Wild Rivers Act as now in place. It is not necessary that the state “completely frustrate the landowner’s rights and deprive him of the use of his property,” as written in the majority opinion, before the landowner is entitled to compensation. He is entitled to such compensation when the state partially frustrates his rights and deprives him of the use of his property, to the extent he has been deprived.
As stated by the trial court in deciding this case:
“In essence, there comes a time when the interference and control by government of private property has existed for such a period of time that fairness and justice require that government pay for the damages to that property rather than be permitted to decide, unilaterally, that the price for its actions is too high.” Memorandum Opinion, J.B. Johnson, Jr., Judge, McCreary Circuit Court.
Following this decision the trial court was asked to “select a specific date of the taking.” See Pre-trial Order, J.B. Johnson, Jr., Judge, McCreary Circuit Court, dated October 20, 1981. The trial court then held:
“Upon consideration of the arguments of both parties, it is the opinion of the Court *386that while selecting the date of the taking is somewhat artificial, it would appear from the facts that were proved on the liability aspect of this case that the full impact of the enforcement of the Wild Rivers Act had culminated at least by June 25, 1975, the date the Commonwealth enjoined Western Reserves, a lessee of Stearns from drilling gas wells or from engaging in any other activities within the boundaries of the Rock Creek Wild River. Thus, the Court finds that the date of the taking for the purposes of the trial on damages is June 25, 1975.”
The decision of the trial court was well reasoned and in conformity with the law. We should affirm.