___________
___________________________________________________
Filed: December 14, 1992
John T. McFerrin
Robert G. McLusky
Charleston, West Virginia
Jackson & Kelly
Attorney for the Appellants
Charleston, West Virginia
Attorney for Intervenor
Franklin Lash
West Virginia Division of Environmental Protection
Nitro, West Virginia
Attorney for the Appellee
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
1. Under the definition of valid existing rights for
haul roads provided in 38 W. Va. C.S.R. § 2-2.129 (1992), a permit
applicant may establish valid existing rights for a coal haul road
if the applicant demonstrates that the proposed road was in
existence prior to August 3, 1977.
2. "When the language of a regulation promulgated
pursuant to the West Virginia Surface Mining and Reclamation Act,
W. Va. Code, 22A-3-1 et seq., is clear and unambiguous, the plain
meaning of the regulation is to be accepted and followed without
resorting to the rules of interpretation or construction." Syl.
pt. 1, State ex rel. Laurel Mountain v. Callaghan, 187 W. Va. 266,
418 S.E.2d 580 (1992).
McHugh, Chief Justice:
The appellants, John Curnutte and Vicki Nickell, appeal
the final order of the Circuit Court of Kanawha County which
dismissed their complaint against the appellee, David Callaghan,
Director of the Environmental Protection Agency, for failure to
state a claim upon which relief can be granted. Lynn Branch Coal
Company, Inc. (hereinafter "Lynn Branch") has intervened in these
proceedings.
The dispute in the case before us arises from the application for and issuance of a surface mining permit to Lynn Branch for the surface effects and operations associated with its proposed deep mine located off of Route 44 in Logan County, West Virginia. Lynn Branch intends to gain access from Route 44 to the mine entry by way of a private road which has been in existence for many years. The use of the private road to gain access to the site of the mining operations is part of the surface mine under W. Va. Code, 22A-3-3(w)(2) [1991].See footnote 1
In October of 1991, the appellants filed a complaint and petition for temporary injunction seeking to enjoin the West Virginia Department of Environmental Protection (hereinafter "DEP") from issuing a surface mining permit to Lynn Branch. The appellants maintained that under the provisions of the West Virginia Surface Coal Mining and Reclamation Act (hereinafter "WVSCMRA"), specifically, W. Va. Code, 22A-3-22(d) [1991], Lynn Branch is prohibited from using the private road to gain access to the mine unless it can establish that the road for which it claims to have valid existing rights was used to transport coal prior to August 3, 1977. Approximately one month after the complaint and motion for temporary injunction were filed, the circuit court entered an order denying the motion for temporary injunction and dismissing the complaint.
Thereafter, the appellants filed a petition for appeal of the circuit court's order, and a motion for a temporary injunction, which this Court denied. The appellants then filed a second petition for appeal, and also renewed their motion for a temporary injunction. The appellants' second petition for appeal was accepted by this Court, and a few weeks later, DEP issued a surface mining permit to Lynn Branch. This Court then granted the appellants' motion for temporary injunction during the pendency of this appeal.
On October 22, 1992, Lynn Branch filed a motion to dissolve the injunction and to dismiss the appeal on the grounds that the appellants had withdrawn their appeal of the permit before the Board of Reclamation. The appellants subsequently filed a response to that motion.
The sole issue before this Court is whether a private road in existence prior to August 3, 1977, qualifies under the "valid existing rights" exception under W. Va. Code, 22A-3-22(d) [1991] and 38 W. Va. C.S.R. § 2-2.129 (1992). The appellants argue that valid existing rights under WVSCMRA cannot be used to create new rights which did not exist prior to August 3, 1977. The appellee and Lynn Branch contend that, under the federal and state regulations defining valid existing rights with respect to haul roads, any road in existence prior to August 3, 1977, would qualify for use as a coal haul road.
This legislature enacted the WVSCMRA to expand the state's protection of the public and the environment from the adverse effects of surface-mining operations through effective control of those operations, while assuring that coal production necessary to the nation's energy requirements and the state's economic well-being is provided.See footnote 2 See Russell v. Island Creek Coal Co., 182 W. Va. 506, 511, 389 S.E.2d 194, 199 (1989). As part of the procedures established to ensure that surface-mining operations are conducted in a manner to adequately protect both the public and the environment, W. Va. Code, 22A-3-9 [1991] sets forth certain requirements which must be met for all surface mine permit applications. The applicant has the burden of establishing that the application is in compliance with all the requirements of WVSCMRA. W. Va. Code, 22A-3-18(b) [1991]. Our discussion of these requirements in the present case, however, is limited to those requirements involving the use of existing roads for hauling coal from the surface mine site.
As we pointed out earlier, the use of existing roads to gain access to the site of surface-mining activities is designated as part of the surface mine under W. Va. Code, 22A-3-3 [1991]. As such, it is therefore necessary for a surface mine permit applicant to identify the road intended to be used to gain access to the site, and to submit accurate maps showing "the area of land within the permit area upon which the applicant has the legal right to enter and conduct surface-mining operations[.]" W. Va. Code, 22A-3-9(a)(12) [1991].
An applicant is also required under W. Va. Code, 22A-3-9(a)(6) [1991]See footnote 3 to submit a copy of the applicant's newspaper advertisement which shall advise the public of: (1) the proposed mining operation and its location; (2) the location of the division of energy office where the application is available for public inspections; and (3) the time period during which the commissioner will accept written protests from the public. The public is, therefore, given notice of the location of the mine and its access road so that written comments or protests may be submitted.
The proposed location for the road in the present case is
within 300 feet of occupied dwellings and a school and within 100
feet of a public road. The restrictions on surface mining
activities which are relevant to the facts of this case are found
in W. Va. Code, 22A-3-22(d)(3) and (4) [1991],See footnote 4 which provide, in
pertinent part:
(d) After the third day of August, one
thousand nine hundred seventy-seven; and
subject to valid existing rights,See footnote 5 no surface-mining operations, except those which existed
on that date, shall be permitted:
. . . .
(3) Within one hundred feet of the
outside right-of-way line on any public road,
except where mine access roads or haulage
roads join such right-of-way line . . .;
(4) Within three hundred feet from any
occupied dwelling, unless waived by the owner
thereof, or within three hundred feet of any
public building, school, church, community or
institutional building, public park, or within
one hundred feet of a cemetery[.]
Thus, in order for the private road in this case to qualify as a
haul road for the proposed surface-mining operations, it must fall
within the valid existing rights exception to W. Va. Code, 22A-3-22(d) [1991].
Although there is no definition of "valid existing rights" under WVSCMRA, the state regulations and the federal regulations define the term. The state regulation, 38 W. Va. C.S.R. § 2-2.129 (1992), provides, in relevant part: "For [haul roads], valid existing rights means a road or recorded right-of-way or easement for a road which was in existence prior to August 3, 1977."
Under the federal regulation, 30 C.F.R. § 761.5 (1991), however, "valid existing rights" for haul roads means: "(1) A recorded right of way, recorded easement or a permit for a coal haul road recorded as of August 3, 1977, or (2) Any other road in existence as of August 3, 1977[.]" (emphasis added).
There are no federal or state court decisions which specifically address the application of the valid existing rights exception to haul roads. However, since the enactment of the federal and state regulations, regulatory authorities have been uncertain as to how the valid existing rights exception should be applied to coal haul roads. For example, in the record before us, the concern over the application of the valid existing rights exception to coal haul roads is reflected in a letter dated October 3, 1978, from the director of the Office of Surface Mining of the United States Department of the Interior (hereinafter "OSM") to the director of the West Virginia Department of Natural Resources (hereinafter "DNR"). In that letter, the OSM director attempts to clarify the application of the valid existing rights exception to haul roads. The OSM director explained that "the DNR should be guided by whether, as of August 3, 1977, there was an existing haul road, whether there was a recorded right-of-way or easement specifically providing for coal haulage access, or whether there was an outstanding permit issued by the DNR or the West Virginia Department of Mines."
After OSM issued its opinion in the letter to DNR, another attempt to clarify what constitutes valid existing rights for haul roads was provided in the Federal Register:
What would constitute VER for haul roads? Some commenters were concerned that haul roads utilized for resources other than coal could have VER for surface coal mining operations. Others were concerned that the VER definition for haul roads be consistent with OSM's letter of October 3, 1978, to West Virginia. OSM's analysis indicated that there are two situations in which VER might be established for haul roads. First, an applicant or operator could have a specific right to construct and use a haul road, established by a recorded right-of-way, recorded easement or permit for a coal haul road as of August 3, 1977. The second situation which could establish VER for a haul road is the actual existence of a road as of August 3, 1977, which is being or could be used for coal haulage, including haul roads used for timber, stone or other minerals. Their use for hauling is established. Existing mines or other operations are dependent upon them.
Although such roads may have to be upgraded to
comply with the standards of the Act, it would
be less damaging to the environment to
continue the use of such a road than to
require that a completely new road be
constructed. Commenters' concerns that non-coal haul roads would qualify for VER must be
balanced with the environmental disturbance of
establishing new roads because many problems
associated with haul roads--noise, dust,
vibration--will continue regardless of whether
the road is used for coal haulage. If a new
road must be established for coal hauling, it
will be necessary to disrupt additional land,
regrade the surface, build a road bed,
establish drainage controls and other
facilities necessary to a new road. In
addition, the problems of noise, dust,
vibration and air pollution will be brought to
a new area not previously affected.
Accordingly, OSM believes that it is less
damaging to use existing roads, whether or not
previously used for coal haulage, than to
require construction of additional roads.
Therefore, all roads in existence as of August
3, 1977, have valid existing rights.
44 Fed. Reg. 14,993 (1979).
Clarification of the valid existing rights exception as
it relates to haul roads was again sought in the fall of 1990 in a
letter from the Charleston Field Office of OSM to OSM's
headquarters. The Charleston Field Office of OSM believed that
Congress did not intend for all roads, irrespective of their use,
to have valid existing rights. The Charleston Field Office
asserted in the letter that "[b]y maintaining that all roads in
existence on August 3, 1977, have valid existing rights, OSM would
render the 300 foot distance prohibition requirement for dwellings
at Section 522(e)(5) of SMCRA meaningless." In response, however,
OSM advised the Charleston Field Office that the "any other road"
provision in the regulation meant any other road in existence as of
August 3, 1977. OSM maintained that, because all information on
roads must be included in the permit application, the public will
be put on notice of proposals to use existing roads as haul roads
and will have an opportunity to voice their concerns to the
regulatory authority.
We do not have the benefit of any federal judicial
interpretation of the valid existing rights exception for haul
roads. Nor have we found any case law which gives a different
meaning to the plain language of both the federal and state
regulations defining haul roads under the valid existing rights
exception. Therefore, we must accept and follow the plain meaning
of the state regulation as we recognized in syllabus point 1 of
State ex rel. Laurel Mountain v. Callaghan, 187 W. Va. 266, 418
S.E.2d 580 (1992):
When the language of a regulation
promulgated pursuant to the West Virginia
Surface Mining and Reclamation Act, W. Va.
Code, 22A-3-1 et seq., is clear and
unambiguous, the plain meaning of the
regulation is to be accepted and followed
without resorting to the rules of
interpretation or construction.
Thus, we conclude that, under the definition of valid
existing rights for haul roads provided in 38 W. Va. C.S.R. § 2-2.129 (1992), a permit applicant may establish valid existing
rights for a coal haul road if the applicant demonstrates that the
proposed road was in existence prior to August 3, 1977.
In reaching the decision in this case, we considered the
statement by OSM, in its 1990 letter to OSM's Charleston Field
Office addressing the use of existing roads under the valid
existing rights exception for haul roads, that "[s]ince information
on roads must be included in the permit application, the public
will be put on notice of proposals to use existing roads as haul
roads and will have a chance to comment and raise their concerns to
the regulatory authority." The public does have a statutory right
to file written objections to proposed permits and to request a
hearing before the board of reclamation for approved permits.
First, under W. Va. Code, 22A-3-20 [1985],See footnote 6 interested persons are
afforded the opportunity to file written objections to proposed
surface-mining operations, which would include the use of an
existing road as a coal haul road. Next, under W. Va. Code, 22A-3-21(b) [1985],See footnote 7 interested persons adversely affected by the
issuance of a permit may request a hearing before the board of
reclamation.
However, it is unclear from OSM's statements what issues
or concerns may be raised by the public to challenge valid existing
rights claims for haul roads, or what the public must demonstrate
to show that an existing road should not be used as a haul road.See footnote 8
Notwithstanding the ambiguity of OSM's statements, this issue has
not been raised before this Court nor do the particular facts of
this case warrant an analysis of this issue.
There is no dispute among the parties in the case before us that the road in question existed prior to August 3, 1977. Moreover, Lynn Branch has submitted affidavits of witnesses attesting to the fact that the road was used as a coal haul road prior to August 3, 1977. Finally, the DEP has represented that Lynn Branch satisfied all of its permit application requirements.See footnote 9 Thus, for the reasons set forth herein, we conclude that the order of the circuit court should be affirmed, and that the injunction issued by this Court should be dissolved.See footnote 10
Footnote: 1 The definition of surface mine under W. Va. Code, 22A-3-3 [1991] includes the "use of existing roads to gain access to the site of such activities and for haulage[.]" Thus, the use of the private road in this case is considered to be part of the surface mine.
Footnote: 2 W. Va. Code, 22A-3-2(b) [1985] provides:
(b) Therefore, it is the purpose of this
article to:
(1) Expand the established and effective
statewide program to protect the public and
the environment from the adverse effects of
surface-mining operations;
(2) Assure that the rights of surface and
mineral owners and other persons with legal
interest in the land or appurtenances to land
are adequately protected from such operations;
(3) Assure that surface-mining operations
are not conducted where reclamation as
required by this article is not feasible;
(4) Assure that surface-mining operations
are conducted in a manner to adequately
protect the environment;
(5) Assure that adequate procedures are
undertaken to reclaim surface areas as
contemporaneously as possible with the
surface-mining operations;
(6) Assure that adequate procedures are
provided for public participation where
appropriate under this article;
(7) Assure the exercise of the full reach
of state common law, statutory and
constitutional powers for the protection of
the public interest through the effective
control of surface-mining operations; and
(8) Assure that coal production essential
to the nation's energy requirements and to the
state's economic social well-being is
provided.
Footnote: 3 W. Va. Code, 22A-3-9(a)(6) provides:
(6) A copy of the applicant's
advertisement to be published in a newspaper
of general circulation in the locality of the
proposed permit area at least once a week for
four successive weeks. The advertisement
shall contain in abbreviated form the
information required by this section including
the ownership and map of the tract location
and boundaries of the proposed site so that
the proposed operation is readily [located] by
local residents, the location of the office of
the division of energy where the application
is available for public inspection and stating
that written protests will be accepted by the
commissioner until a certain date which shall
be at least thirty days after the last
publication of the applicant's
advertisement[.]
Footnote: 4 W. Va. Code, 22A-3-22(d)(3) and (4) [1991] are modeled
after 522(e) of the federal Act (Pub. L. 95-87, title V, § 522,
Aug. 3, 1977, 91 Stat. 507) which is codified at 30 U.S.C. §
1272(e) (1988). The specific provisions relevant to this case are
30 U.S.C. § 1272(e)(4) and (5) (1988):
(e) Prohibition on certain Federal public
and private surface coal mining operations
After August 3, 1977, and subject to
valid existing rights no surface coal mining
operations except those which exist on August
3, 1977, shall be permitted--
. . . .
. . . .
. . . .
(4) within one hundred feet of the
outside right-of-way line of any public road,
except where mine access roads or haulage
roads join such right-of-way line and except
that the regulatory authority may permit such
roads to be relocated or the area affected to
lie within one hundred feet of such road, if
after public notice and opportunity for public
hearing in the locality a written finding is
made that the interests of the public and the
landowners affected thereby will be protected;
or
(5) within three hundred feet from any
occupied dwelling, unless waived by the owner
thereof, nor within three hundred feet of any
public building, school, church, community, or
institutional building, public park, or within
one hundred feet of a cemetery.
Footnote: 5 We note that the definition for valid existing rights
with respect to haul roads is different than the other definitions
for valid existing rights under both the federal and state
regulations. Under 30 C.F.R. § 761.5 (1991), valid existing rights
mean:
(a) Except for haul roads, that a person
possesses valid existing rights for an area
protected under section 522(e) of the Act on
August 3, 1977, if the application of any of
the prohibitions contained in that section to
the property interest that existed on that
date would effect a taking of the person's
property which would entitle the person to
just compensation under the Fifth and
Fourteenth Amendments to the United States
Constitution;
. . . .
(c) A person possesses valid existing
rights if the person proposing to conduct
surface coal mining operations can demonstrate
that the coal is both needed for, and
immediately adjacent to, an ongoing surface
coal mining operation which existed on August
3, 1977. A determination that coal is 'needed
for' will be based upon a finding that the
extension of mining is essential to make the
surface coal mining operation as a whole
economically viable;
(d) Where an area comes under the
protection of section 522(e) of the Act after
August 3, 1977, valid existing rights shall be
found if--
(1) On the date the protection comes into
existence, a validly authorized surface coal
mining operation exists on that area; or
(2) The prohibition caused by section 522(e) of the Act, if applied to the property interest that exists on the date the protection comes into existence, would effect a taking of the person's property which would entitle the person to just compensation under the Fifth and Fourteenth Amendments to the
United States Constitution.
(emphasis added).
The definition of valid existing rights, except for haul
roads, set forth in the federal regulation has been the subject of
much debate over the fifteen years since the enactment of the
federal Surface Mining Control and Reclamation Act (hereinafter
"SMCRA"). See, e.g., Valid Existing Rights Symposium, 5 J. Min. L.
& Pol'y No. 3 (1989-90) (this issue consists of a collection of law
and policy research papers which discuss valid existing rights
under the federal SMCRA).
Under our state regulation, 38 W. Va. C.S.R. § 2-2.129
(1992), valid existing rights, except for haul roads, are defined
as follows:
Valid Existing Rights exist, except for
[haul roads], in each case in which a person
demonstrates that the limitation provided for
in the Act would result in the
unconstitutional taking of that person's
rights. . . . A person possesses valid
existing rights if he can demonstrate that the
coal is immediately adjacent to an ongoing
mining operation which existed on August 3,
1977 and is needed to make the operation as a
whole economically viable. Valid existing
rights shall also be found for an area where a
person can demonstrate that an SMA number had
been issued prior to the time when the
structure, road, cemetery or other entity came
into existence.
(emphasis added).
Footnote: 6 W. Va. Code, 22A-3-20 [1985] provides, in relevant part:
Any person having an interest which is or
may be adversely affected, . . . shall have
the right to file written objections to the
proposed initial or revised permit application
for a surface-mining operation with the
commissioner within thirty days after the last
publication of the advertisement required in
subsection (a) of this section. Such
objections shall be immediately transmitted to
the applicant by the commissioner and shall be
made available to the public.
Footnote: 7 W. Va. Code, 22A-3-21(b) [1985] provides, in pertinent
part:
Within thirty days after the applicant is
notified of the commissioner's decision, the
applicant or any person with an interest which
is or may be adversely affected may request a
hearing before the reclamation board of review
as provided in article four [§ 22-4-1 et
seq.], chapter twenty-two for this code to
review the commissioner's decision.
Footnote: 8 Although we are uncertain what issues OSM believes the
public may raise to challenge valid existing rights claims for haul
roads, we do recognize the need to balance the various interests
under WVSCRMA and SMCRA. The need to "strike a balance" between
the production of coal and the protection of the public and
environment under the federal act was recently addressed by the
United States District Court of the District of Columbia in Indiana
Coal Council, Inc. v. Lujan, 774 F. Supp. 1385, 1399 (D.D.C. 1991).
In the Lujan case, industry plaintiffs brought an action contending
that the Secretary of Interior had promulgated regulations under
SMCRA that placed burdensome responsibilities for identifying and
evaluating unknown historic and archeological resources in mining
permit applications. 774 F. Supp. at 1387. The industry
plaintiff's principal objection appeared to be based on the
mitigation measures for historic properties which affect applicants
with valid existing rights. The District Court observed:
Although SMCRA does not allow OSM or the
[state regulatory authorities] to prohibit
mining on land subject to valid existing
rights, 30 U.S.C. § 1272(e), the statute
authorizes less extreme measures to protect
sites covered by Section 522(e), in order to
effectuate the balancing of interest required
by the Act as a whole. See 30 U.S.C. §§
1201(c)-(e), (h), (k), 1202(f). OSM expressly
relied on its broad authority under SMCRA in
requiring permit applicants with valid
existing rights to describe mitigation
measures for historic properties listed on the
National Register and for public parks.
A.R.I. 558; 52 Fed.Reg. 4260.
Moreover, section 510(a) of SMCRA authorizes the [state regulatory authorities] to 'grant, require modification of, or deny' permit applications. 30 U.S.C. § 1260(a). That authority is not restricted by valid
existing rights. Subject to the limitations
of the takings clause, see 30 C.F.R. § 761.5,
the states are not obligated to grant
automatically an application for which valid
existing rights are claimed.
774 F. Supp. at 1398-99 (emphasis added).
Footnote: 9 Upon questioning by the Court at oral argument, DEP represented that Lynn Branch satisfied all of its permit application requirements.
Footnote: 10 We note that the appellants have withdrawn their appeal of the approved permit, and therefore, have chosen not to exhaust their administrative remedies. See Hechler v. Casey, 175 W. Va. 434, 441, 333 S.E.2d 799, 806 (1985), quoting Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984), ('[t]he existence of an administrative appeal is as important in determining the appropriateness of extraordinary remedies, such as . . . [injunctive relief], as is the existence of an alternate avenue of judicial relief.')