*1 counsel, in any appointed order the same “in manner the same give effect to language of W. Va.Code
to the same extent”
§ 29-21-20 County order Commis
Thus County indemnify appellants
sion of Wood hold that their defense and we
for the cost of attorney appointed pursuant to
when 29-21-1, et for mal is sued
Va.Code representa
practice in with that connection attorney actually incurs costs in
tion suit,
defending the costs incurred are such
ultimately Board chargeable to the State Management.4
Risk and Insurance
IV.
CONCLUSION above, appel-
For the set forth reasons
lants’ Petition for Writ of Mandamus is moulded, County
granted, Com- County pay
mission Wood is directed $5,839.35, appellants the sum such sum appellees
to be collected Manage- Risk and
State Board of Insurance
ment. granted
Writ as moulded.
ANTCO, INC., Antulov, Margaret John Antulov,
Antulov and Plaintiffs Steve
Below, Appellants CORPORATION, FUEL
DODGE Below, Appellee
Defendant
No. 28467.
Supreme Appeals Court Virginia.
West March
Submitted 2001. June 2001.
Decided
Dissenting Opinion of Justice July
Davis 2001. Nothing holding primacy appointed hold that counsel bear the in this affects the must not another, policy appointed pursuant to W. one insurance over when more cost of defense when given merely seq. might than one cover a claim. We
646 *3 property,
personal appeal the lower court’s grant summary judgment in favor of a mining company that mined ap- beneath the property. pellants’ The lower court found appellants’ contained a valid support, and that be- waiver, mining company cause of the was entitled allow the surface with- subside any liability damages appellants’ out agree property. Because we the deed waiver, disput- contained a valid but find that questions fact ed of material remain unan- *4 swered, affirm part, we and reverse part, the decision of trial court. I.
BACKGROUND Antulov, Margaret John and along with Antulov, pur- their sons Steve and John chased about 110 acres land Marion County, Virginia, West near the Harrison line, County February on 1986. From appears property the record it that the had strip deep been mined and mined before the it, purchased Antulovs but that minable coal remained, deep- both surface and in near the deposits. er purchased The Antulovs tract surface Company, from Consolidation Coal the deed to which contained a reservation of the mining rights grantor. favor A Anderson, Fairmont, Esq., Charles E. handwritten notation in the deed limited Virginia, Appellants. Attorney for West “deep” mining rights, the reservation to the Rose, Jeffrey Esq., Taylor, D. Padden & apparently conveying to the Antulovs the Fairmont, Petty, Virginia, Attorney West for right mine coal close the surface. Appellee. subja- The deed also a contained waiver support, any liability any cent and of for MeGRAW, Chief Justice: damages by might caused subsidence Appellants, who claim property surface owners result when the coal beneath the mining their real and was mined.1 Specifically being employed the deed reserved: after .... All without for liable any injury damage to the excepted surface of the There is unto the and reserved Grant- thereof, proper being required or or the all owner the several lands and without to leave or deep "deep” [word seams of coal and all provide support lateral and by by parties] inserted hand and initialed min- overlying adjoining strata and or surface or ing rights privileges and and all constituent anything including therein or thereon struc- coal, in, products upon underlying improvements tures or now or hereafter erect- lands, including the said surface ed thereon and water courses therein water or develop mine and remove and otherwise thereon, being and without liable for process ship work and for market all of damages damage surface sort how- owned, the coal now or hereafter ac- leased of, arising soever caused or from the removal owner, by quired proper the Grantor or the operation and all in connection with any mining machinery method or now or here- from Dodge acquired rights to the coal been asked to address often
While Mining Company agreement owners and mineral disputes surface Bellwood between owners, typical September owner 1993. Subse- dated lease case, mining company a Dodge applied because the for and quently, versus received case, Antulovs, in this Virginia Department surface owners the West (hereafter The four were also the coal business. Protection of Environmental joint family called “DEP”) owners in a business secondary mining oper- were commence Anteo, Inc., strip they which used mine the property.4 Antulov West ations beneath time, mining coal a property.2 After infra, mining regulations, discussed it that would be more Antulovs determined provide, in its mining company to require any them mine limestone than profitable for pre-mining infor- permit application, detailed coal, began operation on they quarry so possible consequences mation about property. mining-related subsidence. purchased a used rock crush- Antulovs permit, In an to its attachment er, property, and reassem- moved it stated: large crusher was bled it. Because the though not be- operator does Even enormous force when machine exerted will cause material lieve that subsidence had to support operating, the Antulovs in value or foresee- or diminution platform they out of steel I constructed over the able of the land or structures use *5 pipes large to driven into beams secured mine, deep operator proposed [sic] The They operated quarry for the some bedrock. acknowledges that if subsidence causes time, producing commercial limestone damage value or or reduces the material The amount of revenue various customers. of reasonably foreseeable use the surface subject produced is operation this the lands, land operator restore the the shall parties. some between the debate capable supporting it to a uses condition record, at Though not clear in the some supporting subsi- capable was before approached by rep- point Antulovs the were right regardless the to subside. dence Corporation Dodge from Fuel resentatives added) (emphasis (hereafter entity, “Dodge”), who or a related deep the intends quarry that mine possessed, planning either or to then were by leaving protected will undermine be deep acquire, right soon to mine the place area 50% of the coal least repre- property. These the Antulovs’ added) quarry, (emphasis under the join proposed sentatives that the Antulovs planned In all areas subsidence other remaining them in a mine venture damaged (repair measures deep property. coal under The Antulovs surface) prevent will be taken to material agreed Dodge part became owners lessening of the value rea- Corporation. Fuel were The Antulovs sonably of the surface. foreseeable use perform deep some excavation related mine, obtaining During Dodge that conduct the time and were to assist necessary mining op- mining property, permits to conduct the ed beneath the Antulov Dodge5 DEP Notices of Violation eration.3 cited proper Again, dispute parties is a between the said coal owner 4. there Grantor permits mining oper- acquired to who for the ation. brother, Antulov, point, 2. At John re- some one actually Dodge that it 5. maintains its brief was Inc., Anteo, linquished leaving ownership in his "Anteo, Inc.,” permit that and con- received appellants. the three named mining, and that it was ducted much "Anteo, Inc.,” these of Vio- that received Notices Dodge Corporation It if is unclear Fuel existed appellees prevailed on lation DEP. Because from time, entity new before this or was formed as a summary judgment, view facts in we must specifically purpose beneath "[Wjhere varying infer- appellants’ favor. evidence, property. the Antulovs' drawn the same ences underlying light facts in most must view the non-moving party.” Armor favorable to 1) failing adopt a agree for: subsidence control relatively existed. While we that this (a plan satisfactory “angle with a draw” support recent waiver of contained relating of art term the estimation of the in the 1986 was valid and affirm the subsidence)6 2) conducting area of the issue, lower court on this ques- we find that mining operations outside the boundaries de- tions of fact regard material exist with Dodge’s approved map.7 scribed Dodge’s alleged violations or violations of its mining permit, and on that reverse basis. The Antulovs claimed before the circuit Dodge require- court failed to follow the permit
ments
its
and undermined
land
II.
quarry,
beneath them rock
which
had
specifically promised
permit
not to
indo
STANDARD OF REVIEW
application. The Antulovs claim that
this
routinely
We have
declared our
permit produced
violation of the
standard of
grant
review for a lower court’s
equipment,
thereby
mak-
summary judgment:
ing
economically
it
unfeasible to continue
result,
quarry operations.
them
As a
entry
“A circuit
summary judg-
court’s
claim
damages
Antulovs
direct
for the lost
ment
is
Syl. pt.
reviewed de novo.”
equipment
profits
as well as lost
from their
Peavy,
Painter v.
business.
party
S.E.2d 755
A
moving for
summary judgment
faces a well-estab-
Dodge argued
below that the deed held
summary
lished burden: “A motion for
the Antulovs for the surface contains a clear
judgment
granted only
should be
when
subjacent support,
waiver of
and thus fore-
genuine
clear that there is no
issue of
closes
maintaining
the Antulovs from
fact to
inquiry concerning
be tried and
damages.
action for
say,
That
is to
clarify
facts is not desirable to
applica-
despite any
statements
in its
made
tion
Syl. pt.
of the law.”
Aetna Cas. &
application, Dodge
claimed it had the
*6
Surety
v.Co.
Federal Insur. Co. New
subside,
mine and to
cause the land to
within
York,
160,
148 W.Va.
The Circuit Court of Marion 438 We have also noted agreed Dodge. that, granted The court determining sum- on “[i]n review whether mary judgment Dodge, finding favor of genuine there is a issue of material fact 26,1986, February that the Antulovs’ parties, between the this Court will construe valid, was and “clearly remains and and light con- the facts ‘in a most favorable to the ” clusively losing party,’ Alpine demonstrates the intention of Property [the As Owners any right sociation, Inc., Antulovs] to waive Mountaintop and Development that, support 12, 57, ....” 17, lateral as a Company, result of 179 W.Va. 365 S.E.2d (1987) finding, genuine this Co., no (quoting issue material fact 62 Masinter v. WEBCO S.E,2d Lantz, 672, 677, 737, activity, angle 207 W.Va. predict 535 742 of draw can be used to (2000) (citing Peavy, Painter v. 192 general W.Va. expect- area where can be (1994)). 451 S.E.2d Thus need Barrett, generally, ed to See occur. Joshua I. contention, not address this but we do note that a Longwall Mining and SMCRA: Unstable Ground this, dispute concerning factual such as who ac- Regulators Litigants, W. Va. L.Rev. tually mining operation, controlled the is not compatible grant summary judgment. with a appears argue It that the Antulovs that this laterally beyond 6. Because subsidence extends "over-mining” approved outside the undermined, area was actually adjacent the area surface allegedly connected to the subsidence that dam- land is affected as well. Somewhat like the sides aged property. dug It of a shallow trench in the is unclear from our re- sand on a beach inward, collapse adjacent "over-mining” tend to land to the view of the record whether the dragged undermined actually area downward as cited the DEP occurred beneath or collapses. the roof over a mined area When quarry near the or not. depth mining combined with the known floods; landslides; 241, 242, by contributing 262 S.E.2d (1980)). polluting the and river and stream water beds; fish, by destroying aquatic life and
III.
habitats; by impairing natural
wildlife
beauty; by
property of
damaging the
citi-
DISCUSSION
zens; by
dangerous
creating hazards
this
outset that
case
We remark
property;
by degrading
life and
validity
upon
of waivers
turns not
communities,
quality
life in local
all
upon Dodge’s
subjacent support, but rather
proper mining
where
and reclamation is
specific promises
or statements
violation
practiced.
permit application.
in its
As we dis-
made
(1994).9
Va.Code, § 22-3-2
Thus we
W.
take
below, proper
and adherence
cuss
Virginia
notice that the West
Surface Coal
regulations
mining
and federal
can al-
Mining and Reclamation
W. Va.Code
mining
subsidence,
company to
low a
cause
22-3-1,
legislation
et
remedial
surface struc-
certain cases
pro-
primary purposes
of its
has as one
liability.
cyno-
incurring
without
tures
public
potentially
tection
Dodge’s
case is how
actions
sure of this
mining may have
destructive effects that
effect,
have,
invalidated or limited
oth-
lands,
waterways.
our
forests and
subjacent support.
valid waiver of
erwise
Furthermore,
though the
even
Act
A.
the word “surface” in its title it
contains
case,
clearly
applies
still
to the facts of this
Virginia
Applicability of the West
Surface
underground mining operations
and to
Mining and Reclamation Act
Coal
general. The definitions section
the stat
Appellants ask us to
the con
review
provides:
ute
appellees
light
of the West
duct of the
(u)
mine,”
mining,”
“surface
“Surface
and Reclama
mining operations”
“surface
means:
OWVSCMRA”),
found at
Act
now
tion
seq.8
Legislature
Our
Activities conducted on the surface
goal
of our
has declared
or,
coal,
subject
lands for the
removal of
regulations
proper
is to
balance
strike
be
requirements
fourteen
of section
healthy
a healthy
environment and
tween
article,
operations
surface
economy,
mining may
pur
and that
not be
impacts
underground
incident
to an
to the detriment of all else:
sued
mine,
including
drainage and
dis-
*7
Further,
Legislature
charge
that unreg-
the
finds
from the
The activities in-
mine.
mining operations may
purpose
Excavation
ulated surface coal
clude:
for the
ob-
coal,
to,
taining
including,
of surface and un-
but not limited
result
disturbances
contour,
derground
strip, auger,
areas that
and
burden
adverse-
common methods as
commerce,
removal,
cut,
mountaintop
open
ly
public
pit
affect
welfare and
box
safety by destroying
diminishing
mining;
explosives
or
the
and area
the uses of
commercial, industrial,
reclamation;
utility
blasting;
of land for
and
in situ distilla-
residential, recreational, agricultural
retorting,
leaching
tion or
or other chemi-
and
purposes;
physical
forestry
by causing
processing;
or
cleaning,
erosion and
cal
22A-3-1,
1986).
(March
(codified
(West
§
past
Fed.Reg.
8. Our Act
in the
et
1328
13, 1979).
44
14902
'
seq.)
alongside
legislation,
evolved
has
federal
Company,
history
Coal
length
Consolidation
197
of which
at some
Schultz
we discussed
380,
375,
467,
(1996),
475
472
W.Va.
denied,
S.E.2d
cert.
in another case:
767,
1091,
519 U.S.
117 S.Ct.
136
1979,
Mining
In
Surface
Office of
Recla-
(1997).
713
L.Ed.2d
("OSM”),
agency
and
an
mation
Enforcement
Department
within the United States
importance
9. Our Act also stresses the
of assur-
Interior, initially developed regulations for un-
ing
production
"that
the coal
essential to the
derground
pursuant
energy
mines
to the Surface Min-
requirements and
nation's
to
state’s
("SMCRA"),
ing
well-being provided.”
Control and
Act
Reclamation
economic and social
is
W.
(1994).
22-3-2(b)(8)
§§
§
30 United States
1201
Va.Code
Code Annotated
to
rule,
processing
any
concentrating
prep-
pursuant
or other
or
order or
issued
may
to
bring
this article
an action for
loading
aration and
of coal
commercial
damages,
including
attorney
site;
reasonable
purposes at
or near the mine
fees,
expert
witness
court
(2)
upon which
ac-
The areas
the above
jurisdiction.
competent
Nothing in this
tivities occur or where the activities dis-
rights
subsection affects the
established
turb the natural
land
The areas
surface.
imposed
or limits
under state workers’
land,
adjacent
also include
the use of
compensation laws.
which is incidental to the activities....
22-3-25(f) (1994).11
§
W. Va.Code
§
(emphasis
22-3-3
add-
ed).
mine,”
The definitions of “surface
“sur-
Validity
B.
of Waiver
mining,”
“surface-mining operations”
face
past
existing
We have
found
Virginia
within
contained
the West
right
waivers of or lateral
Mining
and Reclamation
W. Va.
valid,
support
provided
to be
lan
Code
include “surface im- guage of the deed and the circumstances
mine,”
pacts
underground
incident to
surrounding
conveyance
show a clear
such
areas “where
activities disturb the
intention
the surface
to
owner waive such
natural land surface.” The Act was intended
support:
encompass
impacts
the surface
of under-
Virginia
Under the West
common law of
ground mining
mining.10
as well as surface
property,
recognized
firmly
the well
applies
Thus it
to the case at hand.
established rule is that
a
when
landowner
Also,
private
may
we note
citizens
sue
conveyed
underlying
has
the minerals
mining company
plain
a
Act.
land,
surface of his
he retains the
language
of the West
Surface Coal
support
natural
surface
private
and Reclamation Act allows
state,
but
owner of land
release or
against mining companies:
suits
property right
subjacent sup-
waive his
Any person
injured
property
who is
port by
language
clearly
the use of
through
so; however,
by any operator
violation
shows that
he intends
do
Previously
duty
particular
imposes
person
we have found that a
When a statute
a
on a
dealing
duty
others,
subsection
mining company
Act
with the
of a
protection
public safety
it is a
replace
a landowner’s water
a
statute and
violation of such a statute is
supply
underground
apply
did not
prima
negligence
evidence of
unless the
facie
case,
operations.
In that
owners of
says
statute
otherwise. A member of a class
County complained
tract in Braxton
that an un-
by public safety
protected
statute
a claim
has
derground mining operation destroyed their wa-
against anyone who violates such a statute
supply
by causing
ter
their land
proximate
when
the violation is
cause of
"Consequently,
to subside. We found:
we con-
injury to the claimant.
Va.Code, 22A-3-24(b),
clude that neither W.
Co., Inc.,
Syl. pt.
v. Acme Limestone
Shaffer
counterpart
the WVSCMRAnor its federal
in 30
206 W.Va.
S.E.2d
We went
relating
U.S.C.
1307 of the SMCRA
on in that
case
hold that
statute at issue
water,
replacement
applicable
of surface
safety
public
private
was a
statute "for which a
operation
underground
of an
coal mine." Rose
injury
cause of action
be maintained for
Inc.,
Co.,
726, 731,
v. Oneida Coal
Id.,
resulting
syl. pt.
harm
from its violation.”
(1995) (Oneida II).
*8
finding
652
subsequent federal court decisions
extent
tion and
modified to some
has been
law
not create
apply
of the West
to this case and did
did
by
enactment
Act,
Mining and Reclamation
liability
for subsidence dam-
a
standard
strict
[1985],
Va.Code,
seq. and
22A-3-1
Essentially, appellants assert
that
age.
will be
such modification
the extent
all
law have invalidated
changes in federal
properly presented.
upon when
ruled
subjacent support. Appellants
waivers
Inc.,
Coal,
180
Co.
v. Oneida
Syllabus,
Energy
Rose
Poli-
federal
call our attention
I).
(Oneida
182,
814
375 S.E.2d
W.Va.
cy Act
and the related federal case
of 1992
waiver is
However,
also noted that a
Mining
v. Bruce Bab-
National
Association
activity
proposed
as the
only valid insofar
(D.C.Cm.1999).
bitt,
within Syllabus Point of its execution.” the time in explained a recent case the We 175, Hill, 2, 174 S.E. Conley v. 115 W.Va. nature of the state and federal interrelated (1934), grounds, on other overruled 883 mining law. Area Medical Cen- v. Charleston Thornton (1975). statutory 504, scheme of SMCRA ter, 102 Under the 213 S.E.2d 158 W.Va. and Reclamation [Surface Control Sommerville, 3, 180 W.Va. pt. Cogar v. Syl. Act], given a as to the states are choice (1989). 714, 379 S.E.2d they regulate min- wish to surface whether mining company wished to Cogar, In within their re- ing activities that occur within feet of operations surface conduct spective 30 U.S.C. boundaries. See which, proper dwelling, absent a occupied an opted Any state that to assume Although waiver, by Act. prohibited mining regulatory control of its surface beneficiary company was the mining by provisions of required was activities in drafted waivers deeds broad form program to submit state SMCRA old, 1900’s, that broad we found early approval “which demonstrates OSM for were not sufficient under the waivers form carry- capability has the “A waiv- such State Consequently we held: Act. modern form coal severance er of damages provision deed is not the contained in a broad type ing out the meeting provisions purposes of this .... chapter ” Id. West [25] by required states, contemplated many explicit Virginia, other decided to like 22A-3-22(d)(4), mining by before mining W. Va.Code regulate its own surface activities lawfully within conducted operations can be plan ap- and submitted a state which was dwelling.” occupied feet of three hundred law, any proved by Under federal OSM. Sommerville, 4, Syl. pt. Cogar v. changes approved subsequent 714, 379 S.E.2d OSM, plan approved also as we must syllabus point recognized in three However, instant case is the waiver in a deed executed Schultz. contained owners who were agreed was Miano, Excavating, Inc. v. Director DK business. experienced DEP, 549 S.E.2d W.Va. Thus, pressed hard to find flaw arewe omitted). (2001) (footnotes deed, Antulovs’ the waiver waiv- the circuit court as to the concur with legislation, Energy Policy federal validity. er’s contains, alia, requirement inter mining company compensate the owner *9 C. damage for caused surface structures certain Energy Appellants’ the Claims Under subsidence, regard by without waiver Policy Act of 1992 subjacent support. Appellants argue that of in Act should them recover this court Appellants argue that the lower legisla- this case. that federal erred when held recent
653 Canestraro, contrary, Dodge argues group In of appellee To citizens the wanted permit applications our of v. Consolidation local access to that case Schultz 375, expansion 475 S.E.2d Company, They 197 W.Va. of a argued Coal coal waste dam. (1996), denied, 1091, 519 117 467 cert. U.S. required permit applica- that the federal law (1997), 767, prohibits 713 S.Ct. 136 L.Ed.2d tions to in be filed the courthouse in the recovery in this In the Antulovs from ease. county place, was to where the take Schultz, argued that a plaintiffs likewise the required only permits but our state law that mining company to them for dam was liable kept Department six file one of of ages to their structures because of Energy that offices. We noted the federal In changes in that we federal law. case require program rules our comply state development of law on that retraced the the quoted with the federal Act and from the issue, upon the most recent feder based federal rules: time, plain al found that case at that we approved program “States with an State tiffs were not reversal of the entitled administer, implement, shall enforce and summary judgment the lower court had Act, maintain init accordance with the this granted mining company. chapter, provisions ap- Schultz, plaintiffs
In
had
relied
proved
program.”
State
upon
the federal district ease
National
regulation
This
requires the State to
Lujan,
F.Supp.
733
Federation v.
Wildlife
just
provisions
by
abide
(D.C.Cir.
(D.C.1990), rev’d,
419
read (1977). Bearing in mind 30 U.S.C. act. law, of the we exam- supremacy the federal argument. appellants’ ine 1, Id., Syl. pt. 374 S.E.2d entirely consistent holdings are These ii. law of our State. Because fundamental formation, our State’s circumstances of of the Damages Under Subsidence is: command of our Constitution the first Energy Policy Act of the Unit- 1. Relations to Government stated, rejected As in Schultz we ed States plaintiffs’ change argument that a in federal is, of West The State protected damage. law them from subsidence remain, one of United States shall However, appellants instant case the of the United America. The Constitution argue changes more recent to federal America, and the laws and trea States by Policy Act Energy law entitle made thereof, pursuance shall be ties made in recovery damages. them to land. supreme law provides: SMCRA now I, § 1. We as much Const. Art. noted operations W. Va. Underground coal Excavating, supra, and on in DK went after October shall conducted that case hold: require- following comply with each ments: approved plan under the Once state Mining Control and Recla- federal Surface for, repair, compensate Promptly subsequent mation amendments damage resulting from subsidence material plan not become until to such do effective any occupied dwelling residential caused approved the federal Office of Surface thereto, related or non-com- and structures approved by Mining, may not be building underground due mercial Mining if inconsistent of Surface Office mining operations. Repair Mining Control and Rec- with the Surface restoration, rehabilitation, shall include Act. lamation replacement occupied resi- dwelling dential and structures Miano, related Excavating, Syl. pt. DK Inc. v. thereto, building. non-commercial DEP, Director provided to Compensation shall be Finally, the director the Federal damaged occupied residential owner authority has the Office Surface dwelling and related thereto or structures our portions program over all or take be building non-commercial and shall requirements satisfy if it fails to of feder the full amount of diminution value al law: Compensa- resulting from the subsidence. (b) enforcement; Inadequate notice State accomplished purchase, tion hearing premi- prior mining, of a noncancellable finds that the has [I]f he further State umprepaid policy. insurance capability adequately demonstrated its (1992). Although program, 1309a stat- and intent to such State U.S.C. enforce finding. give of such ute is silent as effect waivers public he shall notice beginning dispute, of a the one federal During period with such the outcome *11 directly point, allegation also mining activity ease authored Appeals, District of Columbia clari- occupied Court an dwelling residential or non-com- fies the issue: building. Appellants mercial argu- make the language ment that the previously upheld government’s Energy
We federal Policy obligation repair effectively limitation of the to or Act liability creates a strict compensate damage only to damage structures standard for any to sur- law, required by to the extent However, see face light spe- structure. Lujan, National Fed’n v. language cific legislation, the federal Wildlife 457-59, part F.2d at Mining because the dispute because the before us concerns a Act at explicitly impose the time did not crusher, commercial rock apply we decline obligation compensate damage, for such the Babbitt decision the facts of this case.12 id. at Energy Policy see 458 n. 3. The Act just imposes obligation such an on its face. D. 1309a(a)(l) § (“Compensa- See U.S.C. provided tion shall be to the owner of the Violation of Permit as Evidence damaged occupied dwelling residential Negligence structures related thereto or non-commer- that, Finally, appellants argue in lieu building cial and shall be in the full liability theory, they a strict should be amount the diminution in value result- entitled to negligence recover under a theo subsidence.") ing (emphasis add- from ry, upon based mining per violations of the ed). wholly It is therefore consistent with is, appellants mit. That any claim that al might
the statute —indeed it even be man- leged violation of mining permit, which Secretary dated —for require may may or pursued by not have been mining companies compensate further to DEP, may (cid:127)prima also serve as evidence damages landowners for to which the new facie mining company’s negligence. federal law entitled them. Babbitt, National Association v. Dodge that it counters matters not wheth- (D.C.Cir.1999). F.3d 916-17 any negligence, er it committed because the agree appellants support We with waiver the federal entitles mine, subsidence, developed law has Lujan damage since allow Schultz certain respect damage property upon or residential structures the surface. dwellings and buildings. Dodge non-commercial claims negligent to have a to be However, us, chooses, the case before there is no if it support i.e. the makes alternative, Appellants argue resulting In the any that our from subsidence caused to non- require repairs administrative rules to "struc- building occupied commercial or residential drawing any tures or facilities” without distinc- dwelling or structure related thereto that exist- tion between commercial and noncommercial mining.... ed at the time of property, and cite to the West Code of must, permittee required The to the extent State Rules: law, applicable provisions State either Damage. Damage 16.2.C Material Material damage resulting correct material from subsi- in the context of this section and 3.12 of this any dence caused to structures or facilities not any impairment rule means: functional of sur- (c)(2) protected by paragraph of this section lands, features, face structures or facilities .... repairing damage compensate or the own- operator The ... shall: er of the structures or facilities for the full damage 16.2.C.2 Either correct material re- resulting amount of the decrease in value sulting from subsidence caused to struc- the subsidence. by repairing damage tures or facilities (c)(2)-(c)(3) (1995). Appel- 30 C.F.R. 817.121 compensate the owner of such structures that, argue although lants the federal rules make facilities the full amount of the diminution structures, specific mention of noncommercial resulting in value from the subsidence.... the state rules do not. Because the state rules do §§ 38 W. Va.C.S.R. 2-16.2.C to 16.2.C.2 not limit themselves to noncommercial struc- added). (emphasis Appellants point out that the tures, appellants claim the state rules must cover possibility federal rules do not foreclose the crusher) (e.g. commercial structures the rock greater pro- state law offer a surface owner However, appel- well. because we find tection: permittee grounds, promptly repair, lants on other must decline to address for, compensate particular argument opinion. the owner material in this is a violation negligence superfluous about argument choos- subsidence if it so therefore a violation of statute. it can cause
because *12 may may not had such Dodge have es. or long any that viola However, held ignore We
rights
permit.
before
prima
tion of
is
evi
Dodge’s argument
statute
considered
accept
and
permit
facie
explained
negligence,
of
how
dence
and have
would be to eviscerate the entire
face value
by a court:
should be used
permitting process.
such evidence
prima
evi
of a statute is
“Violation
facie
documents,
elaborately
Permits are
crafted
action
negligence.
of
In order
dence
many
display
that
in
the art of the
cases
able,
proximate
must be the
such violation
compromise. mining company may agree
A
injury
pt.
plaintiffs
Syl.
of
.”
cause
mining
way
in
in a
to limit
some
or
permit
Moulder, 183
Anderson v.
W.Va.
required
that are not
make other concessions
(1990).
violation
stat
Once the
of
by
mining company
A
of
law.
the letter
established,
jury
a
a
is
court should allow
ute
reason,
may choose,
promise
for whatever
case:
to consider the
activity
law
not abso-
that the
does
certain
required by
if not
lutely require. But even
prima
negli-
A
of actionable
case
facie
law,
accepts
approves
and
once the state
sup-
gence
that state
facts which will
is
of
promises, they
and con-
become terms
those
finding
port
jury
a
was
that the defendant
permit,
mining compa-
and the
ditions of
guilty
negligence
proxi-
was
which
ny
honor
must
them.
is,
injuries,
plaintiffs
it
mate cause of
that
proceeded upon
is a
that has
sufficient
case
mining
Although
company may
a
proof
stage
it must
where
be sub-
by
variety
rights
have a
virtue
jury
against
a
not
mitted to
and
decided
arrangement,
a
reservation
contractual
plaintiff as a
of law.
matter
company
to waive
limit
remains free
those
rights
process.
during
permitting
We
Syl. pt.
City Wheeling,
Morris
hold
and conditions of a min
that the terms
78,
provision, requires company that a to do or CONCLUSION However, things. do certain if the com- stated, judgment For reasons pany permit, does otherwise violates County of Marion is af- the Circuit Court statute, clearly violating namely also a is firmed, reversed, part, in is part, that, the Act. Thus we hold because a proceedings for further consistent remanded mine, company must have a valid a this opinion. per- a violation the terms or conditions of reversed, Affirmed, pursuant part, part, mit issued to the West Surface Coal and Reclamation remanded. Justice,
DAVIS, dissenting: ‘party prevented which a is the doctrine claiming his own to [the] acts
(Filed 2001) July party detriment of other who was enti- [the] question simple This case involves the rely tled to on such conduct and has acted whether or a deed not waiver executed accordingly.’” (quoting Black’s Law Dictio- majority (6th was valid. that ed.1990))); concedes nary 551 Black’s Law Dictio- (7th ed.1999) opinion deed waiver is valid. The should nary 571 (defining “estoppel by that have ended with determination. Never- party as “[e]stoppel prevents deed” theless, majority goes on to conclude denying anything a deed from recited *13 parties rights who waived to sue if party deed has the induced another to can, notwithstanding deed_”). for a valid subsidence accept or act under the Id.Cf waiver, damages resulting deed for sue from (defining “estoppel by as “[a] contract” bar permit a term, subsidence where there has been fact, against person’ denying a a point respectfully violation. I On this must arising from performance a contract that the disagree.1 into.”). person Majority’s has entered The contrary unfairly parties rule to deprives the majority The has this as an addressed bargains. of the benefits of their Dodge Corp.’s rights, ap issue of Fuel parently could, Dodge operator found that Fuel A rely coal should be to entitled held, permit process, right virtue of a the waive on valid waiver. This has Court I Majority recognizes, to not be Majority sued. believe the took and the that deed waiv- Maj. wrong Dodge Op. the It approach. is not Fuel’s are valid in this state. at ers See here, rights question patently in it is are Antco’s. 629-630. It is unfair maintain 22-3-25(f) (1994) Certainly permitted W. Va.Code that deed are waivers under state law, (Repl.Vol.1998) grants right yet to Anteo the them render ineffective after-the- Dodge permit very for causing sue violations fact due to Fuel the conduct that was the Anteo, damage subject It way, subsidence to Anteo. is of the waiver. Stated another however, Majority opinion in right may who waived that the deed. the a landowner Dodge rely on rights Fuel was entitled to Antco’s the to his or sell sub-surface mineral accordingly. property optimum waiver and to conduct itself her obtain an sales Consequently, estopped by executing Anteo a price should be of subsidence pursing Dodge damage from of against a cause action The the deed. surface landowner second, windfall, damages. may Fuel to for its recovery collect subsidence then obtain a Co., 266, 270, anticipated Ara v. Ins. previously See Erie (1989) (“Estoppel damage by instituting upon 387 S.E.2d a is civil suit based Thus, prevent properly litigant permit unsuspecting a invoked from a violation.2 the asserting paid a or a against party operator meaningless claim defense a for a has Furthermore, detrimentally posi operator’s who changed has hisJTher] waiver. due waiver, upon litigant’s misrepre deprived tion in reliance reliance on it has been a it likely pur- sentation or failure to disclose material of would have alternatives fact.”); Webb, of Va.App. See also Webb v. sued had it known ineffectiveness 486, 494, (1993) waiver, (“Estoppel agree- as not entering such disagree Rephrased 1. I facts of would also that Anteo should be in the context of the permitted damage pursue case, a cause of action for present may operator a land sell owner/coal piece equipment permit to a as a result a reserving land while the sub-surface mineral Majority opinion n rights. violation. The indicates that buyer The obtain the surface land at permit any way contemplate did not dam- bargain by executing rate a waiver subsi- However, age equipment. to surface a review already damage Having dence in the deed. re- complaint Antco's reveals that it did not sue for exchange price ceived the of a benefit reduced Rather, damage piece equipment. to a Anteo relinquishing the for to recover for subsi- sought damages for “subsidence on surface damage, dence the surface landowner then Plaintiffsf], property causing closing recovery previously obtain a windfall for antici- Anteo, ‘Quarry’ depriving Inc. and actually pated subsidence occurs owners, Antulov, John Antulov and Steve suing theory permit on a of a violation. royalties and extraction of property.” limestone on the instance, negotiating a bet- first ment waiver, absence of price in the ter carefully so more as to not
conducting itself damage.3
cause subsidence allowing that not Majority maintains of action would pursue
Anteo to cause permitting entire
effectively “eviscerate major- Maj. Op. 634. What the
process.” however, acknowledge, is that the
ity fails to permit remedy Fuel’s vio-
proper 22-3-17
lations found W. Va.Code Pursuant to this stat- (RepI.Vol.1998).
ute, Division of Environ- the director mandatory duty has
mental Protection response actions in
take certain example, under some circum-
violations. For *14 order cessa-
stances the director must “the portion operation thereof
tion
causing § 22-3- violation.” W. Va.Code
17(a). imposed a also “manda- There
tory than hun- penalty civil not less seven fifty per day per dollars violation.” Id.
dred pattern is a of violations of a
Where there oper-
permit, the director cause permit to be revoked entire
ator’s operator’s to be
amount of the bond forfeited. 22-3-17(b). reasons,
For I that Anteo these believe estopped pursing
should have been Fuel, Dodge against
action circuit granting summary judg- partial
court’s order af-
ment Fuel should have been
firmed. I am to state that Justice authorized joins dissenting
Maynard opinion. me
In re Shanee CAROL
No. 28888.
Supreme Appeals of Court of Virginia.
West 12, 2001.
Submitted June
Decided June language Majority opinion appears depending upon far contained 3. The have liability mining permits, exposed reaching implications now for businesses who are who, operating been wavers and subsidence.