
    HORIZON COAL CORPORATION, Plaintiff, v. UNITED STATES of America, et al., Defendants.
    No. 5:92 CV 1327.
    United States District Court, N.D. Ohio, Eastern Division.
    June 17, 1993.
    
      J. Douglas Drushal, Bonnie C. Drushal, Critchfield, Critchfield & Johnston, Wooster, OH, for Horizon Coal Corp.
    James L. Bickett, Office of the U.S. Atty., Akron, OH, Sandra E. Wartell, Office of the Sol., U.S. Dept, of the Interior, Pittsburgh, PA, for U.S.
    Elizabeth A. Raies, Lee E. Plakas, David L. Dingwell, Tzangas, Plakas & Mannos, Canton, OH, for Jerry Kohl.
   MEMORANDUM OPINION

DOWD, District Judge.

On April 30, 1993, this Court issued a Memorandum Opinion and Order in the above-captioned case granting, inter alia, judgment for the plaintiff and against the defendant United States of America for re-coupment of wrongfully assessed reclamation fees. The Court stated that it would delay entering judgment for Horizon Coal until the two parties mutually submitted a proposed judgment entry which included the amount of interest due on the $97,324.23 refund. The parties have been unable to agree on the issue of interest and have submitted briefs.

The government asserts that, absent a statutory or contractual requirement, it is not liable for interest. Since there is no provision for payment of interest on refunds of reclamation fees in the Surface Mining Control and Reclamation Act, the government argues that Horizon Coal is not entitled to recover interest.

Horizon Coal argues that it is entitled to interest under either 28 U.S.C. § 2411 or 26 U.S.C. § 6611(a) both of which provide for the payment of interest by the United States on “any overpayment in respect of any internal revenue tax” at the overpayment rate determined in 26 U.S.C. § 6621. Plaintiff states that the clearest case for requiring the government to pay interest is found in 28 U.S.C. § 2411.

The Court finds that it is unnecessary to determine which, if any, statute provides authority for requiring the government to pay interest on the wrongfully assessed reclamation fees at issue in this ease. This case comes under the fifth amendment “takings” clause which prohibits the taking of private property for public use without just compensation.

The constitution itself requires the government to make Horizon Coal completely whole in this instance where the government improperly coerced Horizon Coal, under the threat of loss of its mining permit, to pay reclamation fees that Horizon Coal did not owe. On September 20, 1991, Horizon Coal paid the fees under protest and thereafter unsuccessfully pursued administrative remedies for a refund. In the meantime, Horizon Coal lost the use of over $97,000.00 of its money, while the United States was gaining interest on that same money.

Absent the requirement of interest in a ease such as this, the government would have no incentive to make certain that it is collecting only those fees to which it is entitled. Nor would there be any incentive to speed the process of administrative review of claims of wrongfully assessed fees. The longer the government has the money, the better it is for the government. Action of this type is confiscatory in nature and, under the fifth amendment, entirely unsatisfactory.

The government took Horizon Coal’s property, in the amount of $97,324.23, on September 20, 1991 and has kept the money since then, putting it to public use. This Court has determined that Horizon Coal did not owe any reclamation fees. Therefore, the government was not entitled to assess any such fees in the first place. The fees must be refunded. Interest will be assessed as “just compensation” for the taking.

This Court orders that the United States refund to Horizon Coal the full amount of the wrongfully assessed reclamation fees plus interest computed according to law for the period beginning September 20, 1991 and ending on the date of the Judgment Entry contemporaneously filed with this Memorandum Opinion. See, Appendix A for detailed computation.

Accordingly, judgment will be entered for Horizon Coal against the United States of America in the amount of $103,330.51.

IT IS SO ORDERED.

JUDGMENT ENTRY

For the reasons set forth in the Memorandum Opinion filed contemporaneously with this Judgment Entry and in the Memorandum Opinion filed on April 30, 1993, IT IS HEREBY ORDERED, ADJUDGED and DECREED that summary judgment is granted in favor of Horizon Coal Corporation and against the United States of America for the principal amount of $97,324.23, plus interest in the amount of $6,006.28, for a total judgment of $103,330.51. 
      
      . 26 U.S.C. § 6621 provides that the interest rate for overpayment shall be the sum of the federal short-term rate plus two (2) percentage points.
     
      
      . For lack of any better way of computing the interest, the Court has borrowed the rate of interest set forth in 28 U.S.C. § 2411.
     