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discussing this omission and offering her view
Summary of this case from Schoene v. McElroy Coal Co.Opinion
No. 17-0641
04-12-2018
MCELROY COAL COMPANY, Petitioner v. Michael SCHOENE and Patricia Schoene, Respondents
Rodger L. Puz, Esq., J.R. Hall, Esq., Dickie McCamey & Chilcote, P.C., Pittsburgh, Pennsylvania, Counsel for Petitioner J. Thomas Lane, Esq., Carrie J. Lilly, Esq., Bowles Rice LLP, Charleston, West Virginia, Counsel for Amicus Curiae, The West Virginia Coal Association James G. Bordas, Jr., Esq., Jeremy M. McGraw, Esq., James B. Stoneking, Esq., Bordas & Bordas, PLLC, Wheeling, West Virginia, Counsel for Respondents
Rodger L. Puz, Esq., J.R. Hall, Esq., Dickie McCamey & Chilcote, P.C., Pittsburgh, Pennsylvania, Counsel for Petitioner
J. Thomas Lane, Esq., Carrie J. Lilly, Esq., Bowles Rice LLP, Charleston, West Virginia, Counsel for Amicus Curiae, The West Virginia Coal Association
James G. Bordas, Jr., Esq., Jeremy M. McGraw, Esq., James B. Stoneking, Esq., Bordas & Bordas, PLLC, Wheeling, West Virginia, Counsel for Respondents
LOUGHRY, Justice:This matter is before the Court upon a July 18, 2017, order of the United States Court of Appeals for the Fourth Circuit certifying the following four questions to this Court:
(1) Under West Virginia law, does a deed provision (1902) transferring the right to mine coal "without leaving any support for the overlying strata and without liability for any injury which may result to the surface from the breaking of said strata," prohibit a surface estate owner from pursuing a common law claim for loss of support arising from subsidence caused by the extraction of coal from below the surface?
(2) Assuming the surface lands and residence of a landowner have been materially damaged from subsidence, does the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1 et seq. , (the "Act") authorize an action against the coal mine operator for the damage so arising; or, are landowners only permitted to seek injunctive relief compelling compliance with the Act's provisions? Compare W.Va. Code § 22-3-25(a), with id. § 22-3-25(f) ?
(3) (a) If the Act permits a suit for damages, what is the proper measure of damages? Specifically, is a landowner permitted to recover only the diminution in value to the property arising from the subsidence, or can the property owner alternatively recover damages in an amount equal to the cost to repair the property?
(b) Additionally, if the Act permits a suit for damages, can those damages include
compensation for "annoyance, inconvenience, aggravation and/or loss of use"?
(4) Lastly, the regulations issued under the Act provide that when a coal mine operator causes subsidence damage to the "structures or facilities," the operator must either correct it or "compensate the owner ... in the full amount of the dimunition in value" as a result of the mining. See W.Va. Code R. § 38-2-16.2.c.2 ; see also id. § 38-2-16.2.c.1. The regulations, however, do not designate which party gets to make this election between remedies if the parties fail to reach an agreement. Between the landowner and the coal mine operator, who elects the appropriate remedy and what standards govern that decision?
By order dated August 30, 2017, this Court accepted the certified questions and docketed the matter for resolution. Upon review of the parties' briefs, arguments, and the appendix record, we answer the certified questions.
This Court would like to acknowledge the participation of the West Virginia Coal Association in filing an amicus curiae brief in this case in support of McElroy. We have considered the arguments of the Coal Association in answering the certified questions.
I. Factual and Procedural Background
The respondents, Michael and Patricia Schoene, own the surface to approximately fifty-five acres of land in Marshall County on which sits their residence. The petitioner, McElroy Coal Company ("McElroy"), owns and/or leases the coal beneath the surface. In a 1902 deed, the Schoenes' predecessors-in-interest severed the coal and conveyed it with the express waiver of the right to recover any common law damages resulting from the loss of subjacent support. The waiver clause provides:
Together with all the rights and privileges necessary and useful in the mining and removing of the said coal, including the right of mining the same without leaving any support for the overlying stratas [sic] and without liability for any injury which may result to the surface from the breaking of said strata[.]
In 2012, McElroy mined coal under the Schoenes' property using the longwall mining method. This activity caused subsidence to the Schoenes' surface estate, including damage to their residence. As a result, the Schoenes filed an action against McElroy in the Circuit Court of Marshall County. McElroy removed the action to the United States District Court for the Northern District of West Virginia under diversity jurisdiction.
The Schoenes subsequently amended their complaint to add statutory claims under, inter alia , the West Virginia Surface Coal Mining and Reclamation Act, West Virginia Code §§ 22-3-1 to 22-3-38 ("the Coal Mining Act" or "the Act"). These statutory claims alleged that the subsidence arising from McElroy's mining activities caused material damage to the Schoenes' surface estate and residence, and that McElroy had neither corrected nor paid for the damage. The Schoenes also sought to recover damages for their inconvenience and emotional and mental anguish, stress, and anxiety.
McElroy moved for partial summary judgment, alleging that the waiver clause in the 1902 deed precluded relief on the Schoenes' common law claim and that the Act did not authorize all of the relief the Schoenes sought in their statutory claim. The Schoenes conceded the waiver issue. Specifically, the Schoenes indicated in their response to McElroy's motion for summary judgment:
The [Schoenes] agree, after additional discovery, research and consideration, that the matters for resolution in this case are much more limited than those originally pled in their Complaint and Amended Complaint. The [Schoenes] now agree, and do not dispute, that there is a waiver of subjacent support included within the title chain to their property. The [Schoenes], therefore, acknowledge and agree that they cannot pursue traditional common law property damage claims related to the mining operations conducted under their property. The [Schoenes] therefore agree that Count 1 of their complaint would not be [a] viable claim for trial purposes in this matter.
The federal district court disregarded the Schoenes' concession and denied McElroy's motion for summary judgment on the Schoenes' common law claim.The case proceeded to trial during which both parties adduced evidence regarding the cost to repair the damage to the Schoenes' residence and land. The jury awarded the Schoenes $547,000, which sum includes $350,000 for repair to their residence, $172,000 for repair to the land, and $25,000 for the Schoenes' annoyance, inconvenience, aggravation, and/or loss of use. McElroy appealed that decision to the United States Court of Appeals for the Fourth Circuit, which certified the questions set forth above.
II. Standard of Review
We have consistently held that "[a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court." Syl. Pt. 1, Light v. Allstate Ins. Co. , 203 W.Va. 27, 506 S.E.2d 64 (1998). With this standard to guide us, we proceed to consider the certified questions.
III. Discussion
A. Waiver of Subjacent Support
The first certified question is:
Under West Virginia law, does a deed provision (1902) transferring the right to mine coal "without leaving any support for the overlying strata and without liability for any injury which may result to the surface from the breaking of said strata" prohibit a surface estate owner from pursuing a common law claim for loss of support arising from subsidence caused by the extraction of coal from below the surface?
Under our law, generally, an owner of the surface estate has a right to subjacent support. This Court held in syllabus point one of Winnings v. Wilpen Coal Co. , 134 W.Va. 387, 59 S.E.2d 655 (1950), as follows:
A landowner who conveys the coal underlying the surface of his land has an absolute property right to subjacent support for the surface in its natural state and, though he may sell or dispose of such right, he will not be deemed to have conveyed, parted with, or extinguished it unless his intention so to do clearly appears from express language or by necessary implication.
We subsequently made clear, however, that the right to subjacent support can be waived.
Under the West Virginia common law of property, the well recognized and firmly established rule is that when a landowner has conveyed the minerals underlying the surface of his land, he retains the right to the support of the surface in its natural state, but the owner of land may release or waive his property right of subjacent support by the use of language that clearly shows that he intends to do so[.]
Syllabus, in part, Rose v. Oneida Coal Co., Inc. (Rose I ), 180 W.Va. 182, 375 S.E.2d 814 (1988).
We first address whether the subject waiver in the 1902 deed unambiguously waives the surface owners' right to subjacent support. McElroy posits that the waiver clause is express and unambiguous; consequently, it should be applied and not interpreted. The Schoenes, directly contrary to their position before the district court, now assert that the deed is ambiguous. According to the Schoenes, the granting of mining rights in the deed includes only those mining rights and privileges that are "necessary and useful." Because there is no definition of the terms "necessary and useful" in the deed, the Schoenes say that the deed is ambiguous.
Our law provides that "[d]eeds are subject to the principles of interpretation and construction that govern contracts generally." Syl. Pt. 3, Faith United Methodist Church v. Morgan , 231 W.Va. 423, 745 S.E.2d 461 (2013). Also, "[a] valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Syl. Pt. 1, Cotiga Dev. Co. v. United Fuel Gas Co. , 147 W.Va. 484, 128 S.E.2d 626 (1962). As a result, "[i]t is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them." Id. at 484, 128 S.E.2d at 628, syl. pt. 3. Finally, "[e]xtrinsic evidence will not be admitted to explain or alter the terms of a written contract which is clear and unambiguous." Syl. Pt. 9, Paxton v. Benedum-Trees Oil Co. , 80 W.Va. 187, 94 S.E. 472 (1917).
Upon application of our law to the waiver clause, we conclude that the clause expressly and unambiguously grants to the coal owner or lessee the right to mine the coal underneath the Schoenes' surface estate without leaving "any" surface support and without common law liability for "any" injury caused to the surface as a result of the mining. Although the Schoenes assert that the phrase "necessary and useful" is undefined and therefore renders the deed language ambiguous, we disagree. Giving the words "necessary" and "useful" their common and ordinary meaning, these words simply recognize that a coal operator will use the most legally efficient manner available to remove the coal. These words have no effect on the unambiguous waiver language in the deed. Therefore, we conclude that the Schoenes' predecessors-in-interest expressly waived the right to any subjacent support in unambiguous language.
"Undefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning." Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin , 175 W.Va. 525, 336 S.E.2d 171 (1984).
The next issue we address is the validity of the waiver of subjacent support. In denying McElroy's Motion for Summary Judgment, the federal district court cited syllabus point three of Cogar v. Sommerville , 180 W.Va. 714, 379 S.E.2d 764 (1989), for the rule that waivers of subjacent support are only valid insofar as the proposed activity was within the contemplation of the original parties to the conveyance. The district court reasoned that in order to be within the contemplation of the original parties to the 1902 deed, it must be shown that the mining method, in this case longwall mining, was contemplated by the parties at the time of severance. The district court also described the distinction between longwall mining and the method of mining utilized in 1902, known as room and pillar mining, as follows:
With longwall mining, "extraction takes place across a long 'face' or 'wall' which is blocked out between two panel entries which contain at least three parallel entries. ... The recent technological advances which developed powered self-advancing roof support systems revolutionized longwall mining. The new roof support devices have the strength to hold the mine top secure keeping the face open and preventing roof falls in the face zone. While the powered self-advancing roof support is holding up the mine top above the working area where the coal is being removed, the roof immediately behind the support line is allowed to break and cave."
"Because of virtually complete extraction of coal with overlying rock caving into the mining void, there is resulting subsidence of overlying strata of the surface which, unlike room and pillar mining, is relatively quick and more predictable as to timing."
On the other hand, "the room and pillar mining method derives its name from the driving of openings into coal seams to divide the coal into blocks; these blocks or 'pillars' are solid coal left in situ to support the overlying strata."
Schoene v. McElroy Coal Co. , No. 5:13-CV-95, 2016 WL 397636, at *4-5 (N.D.W.Va. Jan. 29, 2016) (quoting McGinley, Proceedings of the Eastern Mineral Law Foundation Fifth Annual Institute , Ch. 5, p. 5-2 (1984) (citations and footnote omitted) ). The district court concluded that "the broad form waiver of subjacent support is not a valid waiver against the subsidence damage caused by longwall mining. Longwall mining was unknown in Marshall County and to the lessors at the time the instrument was executed." Id. , at *5.
McElroy asserts that the waiver in the 1902 deed unambiguously and expressly waives "any" subjacent support, which unequivocally demonstrates that the parties to the severance deed contemplated the loss of all support and potential damage to the surface estate from underground coal mining. According to McElroy, the proper inquiry is not whether the parties to the severance deed contemplated the actual underground mining method, but whether the parties to the 1902 deed contemplated the loss of surface support and whether the grantor waived the common law right to support. The Schoenes respond by essentially urging this Court to adopt the reasoning of the district court in denying McElroy's Motion for Summary Judgment: the waiver of subjacent support in the 1902 deed is invalid because the longwall method of mining the coal could not have been contemplated in 1902 by the parties to the 1902 severance deed.
In their arguments to this Court, McElroy and the Schoenes cite to two different lines of cases to support their respective positions regarding the validity of the waiver. The line of cases supporting McElroy's position details this Court's acknowledgment that when parties to a coal severance deed expressly waive the right to support and liability, that agreement will be enforced. The Court's reasoning in this line of cases expressly addresses the "contemplation of the parties" argument advanced by the Schoenes, as follows:
[I]n all sales of minerals the question of injury to the lands not conveyed is of so much importance that courts should not assume that it was not considered and made part of the consideration of the deed. ... [I]t is a matter of common information, known to all who have paid any attention to mining that in coal mines the coal will have to remain in place as a support, or the surface be permitted to subside. ... So it is a question of leaving something like one-half the coal in the mine or removing all and permitting the overlying surface to adjust itself to a new bed. And this, I again repeat, should be left for the parties to determine by their contract. If the owner of the coal wishes to keep half of it as a support for the surface he has a perfect right to do so, and if he wishes to sell all, and permit all to be removed he may also do that. When he has made his contract in accordance with his own will and reduced it to writing the courts may declare the legal effect of the writing but cannot change it.
Griffin v. Fairmont Coal Co ., 59 W.Va. 480, 491-92, 53 S.E. 24, 29 (1905). This statement clearly reflects the general awareness in 1905 that conveyance of all coal may well cause subsidence. The idea that some mining methods at that time were more likely than others to cause removal of all surface support is not indicated in Griffin . Rather, the Court specifically addresses the fact that the owner of the coal has the right to sell all of the coal and permit all of the coal to be removed. Therefore, Griffin stands for the proposition that the parties to a severance deed may elect to allow all of the coal to be removed, which may leave no support for the surface estate. Once the parties contemplate this fact, it simply is not relevant by what underground coal mining method the removal of all the coal is achieved.
In 1933, this contemplation, i.e. , the possibility of the removal of all coal and of the resulting subsidence, was reiterated by this Court:
It is common knowledge in the coal fields that the removal of all of a seam of coal, even though several hundred feet below the surface (as in this instance), is likely to cause some surface disturbance. ... It is not conceivable that one who was purchasing or reserving surface would deliberately covenant that all the coal should be removed , if he were expecting the surface to be undisturbed. It is just as unreasonable that one buying or reserving coal would pay for or purport to reserve all the coal , and go through the farce of writing into the deed the right to remove all the coal , if he were contracting to leave the surface inviolate. Both grantor and grantee would well know that all the coal could not be removed if the surface were to be kept intact. A grantor cannot specifically sell a right and then recover damages of his grantee for using the very right sold; nor can a grantee recover damages of his grantor for employing a right when the grantee has agreed to the unrestricted reservation of the right. So, where the entire body of the coal and the express right to remove all of it has been purchased (as in the Griffin Case) or reserved (as in the instant case), there is no justification for mulcting the coal operator in damages for injuries arising from the exercise of that right.
The right "to mine" of itself comprehends excavation and removal. The only effect of adding the word "remove" is to emphasize the right of removal. ... Therefore we must follow the Griffin decision, not only because it is logical, but also because it has become a rule of property in this state
Simmers v. Star Coal & Coke Co ., 113 W.Va. 309, 312-13, 167 S.E. 737, 738 (1933) (emphasis in original) (citations omitted). In syllabus point two of Simmers , this Court held that "[w]here a deed conveys the surface of a tract of land, reserving the coal and the right to mine and ship all of the coal, the surface is divested of its inherent right of support from the coal." Id. at 309, 167 S.E. at 737 (citing syllabus point three of Griffin ). Simmers demonstrates the fallacy of the Schoenes' position that because longwall mining was utilized in this case, its removal of the surface support was not within the contemplation of the parties. What was clearly within the contemplation of the parties, even in the early 1900s, is that the right to mine and remove the coal would necessarily result in subsidence. That is all that has occurred in this case—subsidence. The means by which that occurred is irrelevant. In 1970, this Court again held that
[w]here a deed conveys the coal under a tract of land, together with all the rights and privileges necessary and useful in the mining and removal of said coal, including the right of mining the same with or without leaving any support for the overlying strata, and without liability for any injury which may result to such overlying strata or to the surface, or to water courses or roads or ways by reason of the mining and removal of said coal, the grantee is not liable for damages to the surface or to structures upon the surface, which damages result from surface subsidence proximately resulting from the mining and removal of such coal.
Syllabus, Stamp v. Windsor Power House Coal Co ., 154 W.Va. 578, 177 S.E.2d 146 (1970). The clarity of these holdings likely led to the Schoenes' concession that they had no common law cause of action.
The line of cases relied on by the district court and the Schoenes simply is not on point. See Cogar , 180 W.Va. 714, 379 S.E.2d 764 ; Brown v. Crozer Coal & Land Co ., 144 W.Va. 296, 107 S.E.2d 777 (1959) ; and W.Va.-Pittsburgh Coal Co. v. Strong , 129 W.Va. 832, 42 S.E.2d 46 (1947). As noted above, the federal district court relied on the rule that waivers of subjacent support are only valid insofar as the proposed activity was contemplated by the original parties to the conveyance. To support this "contemplation of the parties" argument, the Schoenes rely on a single sentence in Cogar : "Our conclusion is in accord with the general principle that a release or waiver of liability or damages covers only those items that are within the ordinary contemplation of the parties." 180 W.Va. at 719, 379 S.E.2d at 769. In Cogar , the Court held that a waiver of surface damages was insufficient to waive the right to enforce the Coal Mining Act's ban on mining within 300 feet of a dwelling. 180 W.Va. at 717, 379 S.E.2d at 769. The reason for that is obvious—waiver of damages for injury to the surface has little or nothing to do with a restriction on where mining can occur. This was a statutory prohibition that was enacted well after the deed at issue in Cogar. At the time the parties executed the deed, they clearly could not have contemplated a future ban on mining within 300 feet of a dwelling. In contrast, at the time of the 1902 deed in the instant case, the parties to the deed could and did contemplate the removal of all subjacent support.
Brown and Strong are likewise inapposite from the issue presented here. In Brown , this Court held in syllabus point eight:
Deeds, one made in 1904 granting mineral rights in "all minerals" with "all rights-of-way, of ingress and egress over, across and through [said land] for the purpose of removing the minerals &c. therefrom"; one made in 1905 granting "all the coal and other minerals and mineral substances ... together with the right to mine and remove said minerals in the most approved method"; and one made in 1907 reserving "all minerals ... together with all necessary and useful rights for the proper mining, pumping, transporting of said minerals" do not give owners of such mineral rights the right to engage in improper
mining such as would damage the surface owned by others by augur mining, a method of mining which at the time of the creation of the mineral rights was not an usual method of mining known and accepted as common practice in Wyoming County where the lands in question are located.
144 W.Va. at 296-97, 107 S.E.2d at 779-80. The Court explained the auger mining conducted in Brown as follows:
The purpose of using the augur method was to get the coal out and it made no difference to the defendant that this method would split the plaintiffs' land in two sections, the spoilage being over a mile in length and up to 400 feet wide in places, that the timber on the land in connection with the mining of the coal would be destroyed or diminished in value. The right of ingress and egress and the building of roads certainly was not anticipated at the time the deeds in question were executed to any such extent as used in auger mining as indicated on the land of the plaintiffs in this case.
144 W.Va. at 309-10, 107 S.E.2d at 786. The Court also indicated in the opinion that "auger mining ... results in extensive destruction of the surface." 144 W.Va. at 304, 107 S.E.2d at 783.
At issue in Strong was language in a severance deed that granted to the coal owners the following rights:
Together with the right to enter upon and under said land with employees, animals and machinery at convenient point and points, and to mine, dig, excavate and remove all said coal, and to remove and convey from, upon, under and through, said land all said coal and the coal from other land and lands and to make and maintain on said land all necessary and convenient structures, roads, ways, and tramways, railroads, switches, excavations, air-shafts, drains and openings, for such mining, removal and conveying of all coal aforesaid, with the exclusive use of all such rights of way and privileges aforesaid, including right to deposit mine refuse on said land and waiving all claims for injury or damage done by such mining and removal of coal aforesaid and use of such privileges.
129 W.Va. at 833, 42 S.E.2d at 48. The specific issue in Strong was whether the rights granted in the deed included the right of strip mining. This Court concluded that the language did not include the right to strip mine because at the time the deed was executed in 1904, "the practice of strip mining was [not] known in this State to the extent that it was necessarily within the implied contemplation of the parties to a private contract[.]" Id. at 837, 42 S.E.2d at 49. The Court concluded that "it was not within the contemplation of the parties that the owner of the coal by virtue of the mining rights granted should be entitled to remove any part of the surface[.]" Id . at 838, 42 S.E.2d at 50 (emphasis in original).
In sum, this Court does not find the cases relied upon by the district court and the Schoenes to be applicable to the instant case. Those cases reject the notion of implying a right to directly destroy the surface in a manner not contemplated by typical mining methods. In contrast, the issue in this case is the express waiver of damages for loss of surface support, which is a natural incident of any underground mining regardless of the methodology.
The certified question before us is whether a 1902 deed provision transferring the right to mine coal "without leaving any support for the overlying strata and without liability for any injury which may result to the surface from the breaking of said strata" prohibits a surface owner from pursuing a common law claim for loss of support arising from subsidence caused by the extraction of the coal from below the surface. We answer the question in the affirmative.
B. Remedy for Injury Under The West Virginia Surface Coal Mining And Reclamation Act
Although the Schoenes are precluded from bringing a common law action against McElroy for damages caused to their property by subsidence, our answer to the first certified question does not resolve the issue whether the Schoenes may receive compensation for their damages pursuant to the West Virginia Surface Coal Mining and Reclamation Act, West Virginia Code §§ 22-3-1 to 22-3-38. This Court has succinctly explained the Act as follows:
This Court held in the syllabus of Rose I , in part, that the West Virginia common law of property "has been modified to some extent by the enactment of the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code , 22A-3-1 [1985], et seq. " 180 W.Va. at 183, 375 S.E.2d at 815.
In 1977, Congress enacted the Surface Mining Control and Reclamation Act to "establish a nationwide program to protect society and the environment from the adverse effects of surface mining operations[.]" 30 U.S.C. § 1202(a) [1977]. The federal Act encourages "cooperative federalism" by allowing a State to adopt its own comparable program for the regulation of mining. See 30 U.S.C. § 1253 [1977]. The State's "program need not be identical to the federal program, as long as its provisions are at least as stringent as those provided for in the federal act." Canestraro v. Faerber , 179 W.Va. 793, 794, 374 S.E.2d 319, 320 (1988). West Virginia adopted a comparable mining regulation program, the West Virginia Surface Coal Mining and Reclamation Act, which took effect in 1981. See 1980 Acts of the Legislature, ch. 87.
Huffman v. Goals Coal Co. , 223 W.Va. 724, 726, 679 S.E.2d 323, 325 (2009). Although the instant facts do not concern surface mining, but rather underground mining that damaged the surface and buildings on the surface, the Coal Mining Act still applies. This Court has held that "[t]he definitions of 'surface mine,' 'surface mining,' or 'surface-mining operations' contained within the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1, et seq. include 'surface impacts incident to an underground coal mine,' and areas 'where such activities disturb the natural land surface.' " Syl. Pt. 4, Antco, Inc. v. Dodge Fuel Corp. , 209 W.Va. 644, 550 S.E.2d 622 (2001).
We now turn to the second and third certified questions which we will address together as the parties do in their briefs.
Assuming the surface lands and residence of a landowner have been materially damaged from subsidence, does the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1 et seq. , (the "Act") authorize an action against the coal mine operator for the damage so arising; or, are landowners only permitted to seek injunctive relief compelling compliance with the Act's provisions? Compare W.Va. Code § 22-3-25(a), with id. § 22-3-25(f) ?
(a) If the Act permits a suit for damages, what is the proper measure of damages? Specifically, is a landowner permitted to recover only the diminution in value to the property arising from subsidence, or can the property owner alternatively recover damages in an amount equal to the cost to repair the property?
(b) Additionally, if the Act permits a suit for damages, can those damages include compensation for "annoyance, inconvenience, aggravation and/or loss of use?
It is McElroy's position that the only claim authorized by the Act under the facts of this case is for repair of land and, with regard to the residence, either repair or compensation in the amount of diminution in value pursuant to the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2., which are rules promulgated pursuant to the Act. McElroy acknowledges that West Virginia Code § 22-3-25(f) provides for a statutory claim to recover damages where the surface owner can show a coal operator's violation of the Act. McElroy contends, however, that monetary damages are not recoverable under this statute in the instant case because the Schoenes failed to show a violation by McElroy of the Act that resulted in damage to the Schoenes. Instead, says McElroy, the Schoenes' injuries were caused by subsidence which is a natural consequence of underground mining and not evidence of a violation of the Act. McElroy further asserts that the lawsuit between the parties resulted from a disagreement regarding the cost to repair the Schoenes' land and residence and cannot possibly constitute a violation of the Act. Rather, avers McElroy, the lawsuit could only result in an order to compel McElroy to comply with the requirements of the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2. based on the jury's findings of cost to repair and diminution in value. Therefore, McElroy answers the second and third certified questions as follows: the West Virginia Surface Coal Mining and Reclamation Act does not allow monetary damages for the repair of a residence, the repair of land or damages for annoyance inconvenience, aggravation, and/or loss of use of the surface owner's property.
The Schoenes argue that they had the authority to seek an award of damages under West Virginia Code § 22-3-25(f). The Schoenes aver that McElroy violated its duty under the West Virginia Code of State Rules § 38-2-16.2.c.2. to repair the damage caused by its mining operations or, alternatively, to compensate for that damage "by dragging its feet and obstructing the compensation process for nearly three years." The Schoenes assert that this conduct constitutes a violation of a rule promulgated pursuant to the Act, therefore it falls within the scope of West Virginia Code § 22-3-25(f). Regarding the proper measure of damages under West Virginia Code § 22-3-25(f), the Schoenes contend that these damages should include compensation for damages to residential property as provided for by this Court in Brooks v. City of Huntington , 234 W.Va. 607, 768 S.E.2d 97 (2014), which include the reasonable cost for repairing the residence, even if the costs exceed the fair market value before the damage, and the related expenses stemming from the injury, including damages for annoyance, inconvenience, aggravation, and loss of use during the repair period.
The issue of whether the Schoenes successfully proved in the district court that McElroy violated a rule, order, or permit under the Coal Mining Act is not before this Court. Accordingly, we will answer certified questions two and three by addressing the proper remedy when a person proves a violation of a rule, order, or permit under the Act and when they fail to prove a violation. As discussed above, subsidence is a natural consequence of underground coal mining, and is not necessarily evidence of a violation of the Coal Mining Act. See Keystone Bituminous Coal Assoc. v. DeBenedictis , 480 U.S. 470, 474, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (recognizing that "[c]oal subsidence is the lowering of strata overlying a coal mine, including the land surface, caused by the extraction of underground coal."). Under the State's Coal Mining Act, a coal operator is required to repair any material damage to a surface owner's property as the result of subsidence. Specifically, we held in syllabus point four of Rose v. Oneida Coal Company ("Rose II" ), 195 W.Va. 726, 466 S.E.2d 794 (1995) :
Pursuant to the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code, 22A-3-14 (1985) [now W.Va. Code, 22-3-14 (1994) ], and 30 U.S.C. § 1266 (1977) of the federal Surface Mining Control and Reclamation Act and their accompanying regulations, the operator of an underground mine is required to correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence.
The "accompanying regulations" referred to in this syllabus point are found in the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2., which were promulgated by the State Department of Environmental Protection pursuant to West Virginia Code § 22-3-14 (1994). These rules provide, in applicable part, as follows:
16.2.c. Material Damage. Material damage in the context of this section and 3.12 of this rule means: any functional impairment of surface lands, features, structures or facilities; any physical change that has a significant adverse impact on the affected land's capability to support current or reasonably foreseeable uses or causes significant loss in production or income; or any significant change in the condition, appearance or utility of any structure from its pre-subsidence condition. The operator shall:
16.2.c.1. Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land
to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence;
16.2.c.2. Either correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence. Repair of damage includes rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase prior to mining of a non-cancelable premium-prepaid insurance policy. The requirements of this paragraph only apply to subsidence related damage caused by underground mining activities conducted after October 24, 1992[.]
This Court quotes the provisions that became effective July 1, 2016. Even though the events in this case occurred while the 2011 version of the rule was in effect, the applicable language is the same in both versions of the rule.
(Footnote added).
The West Virginia Code of State Rules §§ 38-2-1 to 38-2-24.9.3 are legislative rules. This Court has explained that "[a] regulation that is proposed by an agency and approved by the Legislature is a 'legislative rule' as defined by the State Administrative Procedures Act, W.Va. Code , 29A-1-2(d) [1982], and such a legislative rule has the force and effect of law." Syl. Pt. 5, Smith v. W.Va. Human Rights Comm'n , 216 W.Va. 2, 602 S.E.2d 445 (2004).
The analogous federal rule is found at 30 C.F.R. § 817.121, which provides:
(c)(1) Repair of damage to surface lands. The permittee must correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses that it was capable of supporting before subsidence damage.
(2) Repair or compensation for damage to non-commercial buildings and related structures. The permittee must promptly repair, or compensate the owner for, material damage resulting from subsidence caused to any non-commercial building or occupied residential dwelling or structure related thereto that existed at the time of mining. If repair option is selected, the permittee must fully rehabilitate, restore or replace the damaged structure. If compensation is selected, the permittee must compensate the owner of the damaged structure for the full amount of the decrease in value resulting from the subsidence-related damage. The permittee may provide compensation by the purchase, before mining, of a non-cancelable premium-prepaid insurance policy. The requirements of this paragraph apply only to subsidence-related damage caused by underground mining activities conducted after October 24, 1992.
It is clear from these legislative rules and Rose II that a coal operator is required to correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible. See Rose II , 195 W.Va. at 727-28, 466 S.E.2d at 795-96, syl. pt. 4. The legislative rules also require the coal operator to either correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence. We emphasize that the coal operator must perform these requirements even if there is no proven violation of a rule, order, or permit issued pursuant to the Coal Mining Act. Therefore, we answer certified question two as follows: assuming the surface lands and residence of a landowner have been materially damaged from subsidence that is a natural result of underground mining, the surface owner is limited to the remedies provided for in the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2.
This brings us to the third certified question regarding damages recoverable under this statute. In the event that a surface owner alleges that a coal operator violated a rule, order, or permit issued pursuant to the Coal Mining Act, the Act permits an action for damages in West Virginia Code § 22-3-25(f) (1994). In this regard, this Court has held:
The analogous federal provision is found at 30 U.S.C. § 1270(f) (1977), which provides in applicable part:
Any person who is injured in his person or property through the violation by any operator of any rule, regulation, order, or permit issued pursuant to this chapter may bring an action for damages (including reasonable attorney and expert witness fees) only in the judicial district in which the surface coal mining operation complained of is located.
The West Virginia Surface Coal Mining and Reclamation Act allows for a private cause of action: "Any person or property who is injured through the violation by any operator of any rule, order or permit issued pursuant to this article may bring an action for damages, including reasonable attorney and expert witness fees, in any court of competent jurisdiction. ..." W.Va. Code § 22-3-25(f) (1994).
Antco, Inc. , 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt. 5. In answering this certified question, we are cognizant that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r , 159 W.Va. 108, 219 S.E.2d 361 (1975). Also, "[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. Pt. 2, State v. Elder , 152 W.Va. 571, 165 S.E.2d 108 (1968). Moreover, "[u]ndefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning." Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin , 175 W.Va. 525, 336 S.E.2d 171 (1984). Also of relevance here is our rule that "[s]tatutes which are remedial in their very nature should be liberally construed to effectuate their purpose." Syl. Pt. 6, Vest v. Cobb , 138 W.Va. 660, 76 S.E.2d 885 (1953). Finally, this Court has held that "[t]he West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1, et seq. , is remedial legislation that has as one of its primary purposes the protection of the public from the potentially destructive effects that mining may have on our lands, forests and waters." Antco, 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt. 3.
Application of these principles to West Virginia Code § 22-3-25(f) compels us to find that the language of this statute is clear and without ambiguity so that we do not have to resort to the rules of interpretation. Clearly, this statute permits an action for damages when "any person or property ... is injured through the violation by any operator of any rule, order or permit issued pursuant to this article." The code section does not define the term "damages," although it does specify that such damages may include "reasonable attorney and expert witness fees." Because the term "damages" is not defined in the statute, this Court will give the term its common, ordinary and accepted meaning. We find that the term "damages" as contained in the phrase "action for damages" in West Virginia Code § 22-3-25(f) refers to monetary compensation for an injury to a person or property. See Black's Law Dictionary 471 (10th ed. 2014) (defining "damages" as "[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury."). Therefore, if a surface owner proves that his or her person or property was injured through a coal operator's violation of a rule, order, or permit, the surface owner can receive monetary compensation for such injury pursuant to West Virginia Code § 22-3-25(f).
The third certified question also asks whether a party may seek compensation for annoyance, inconvenience, aggravation and/or loss of use. Again, we give the term "damages" its common and ordinary meaning as set forth above. This Court has held that "[a]nnoyance and inconvenience can be considered as elements of proof in measuring damages for loss of use of real property." Syl. Pt. 3, Jarrett v. Harper & Son, Inc. , 160 W.Va. 399, 235 S.E.2d 362 (1977), modified on other grounds by Brooks v. City of Huntington , 234 W.Va. 607, 768 S.E.2d 97 (2014). Clearly, a surface owner whose person or property is injured through a coal operator's proven violation of the Coal Mining Act may experience the loss of use of his or her property as a result thereof. In such an instance, a surface owner may be compensated for annoyance and inconvenience that is proven to have been caused by the loss of use of his or her property. In addition, West Virginia Code § 22-3-25(f) specifically refers to injury to a "person," which certainly contemplates something beyond mere property repairs and would encompass annoyance and inconvenience damages. Accordingly, this Court answers part (b) of the third certified question as follows: In an action for damages for injury to the person or property as a result of the coal operator's violation of a rule, order, or permit under the Act, those damages can include compensation for annoyance and inconvenience caused by the loss of use of property resulting from a violation of the Act.
Therefore, based on our discussion above, we hold that a surface owner may commence a civil action against a coal operator pursuant to West Virginia Code § 22-3-25(f) (1994), alleging that injury to the surface owner's person or property was caused through the coal operator's violation of a rule, order, or permit issued under the West Virginia Coal Mining and Reclamation Act [ West Virginia Code §§ 22-3-1 to 22-3-38 ]. If the surface owner proves a violation and that the violation caused the alleged injury, the surface owner may recover monetary damages including, but not limited to, damages for annoyance and inconvenience resulting from the violation. In the event the surface owner is unable to prove that the coal operator violated such rule, order, or permit, or proves the violation but fails to prove that the violation caused the alleged injury, then the surface owner's remedies for subsidence damage caused by a coal operator are those provided in the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2.
C. Election of Remedies
The final certified question provides:
(4) Lastly, the regulations issued under the Act provide that when a coal mine operator causes subsidence damage to the "structures or facilities," the operator must either correct it or "compensate the owner ... in the full amount of the diminution in value" as a result of the mining. See W.Va. Code R. § 38-2-16.2.c.2 ; see also id. § 38-2-16.2.c.1. The regulations, however, do not designate which party gets to make this election between remedies if the parties fail to reach an agreement. Between the landowner and the coal mine operator, who elects the appropriate remedy and what standards govern that decision?
McElroy contends that the coal operator may elect whether to correct the damage or compensate the owner for the full amount of the diminution in value. McElroy cites the West Virginia Code of State Rules §§ 38-2-16.2.c. and 16.2.c.2. which provide that "[t]he operator shall ... [e]ither correct material damage resulting from subsidence caused to any structures or facilities ... or compensate the owner of such structures or facilities in the full amount[.]" According to McElroy, this language mirrors its federal counterpart and that under our law, and to the extent needed, courts should look to federal agency interpretations for guidance. McElroy contends that the federal Office of Surface Mining, which first published the applicable regulations in 1979, and which provide the blueprint for West Virginia's program a year later, consistently has instructed that the selection of the alternative remedies set forth in the analogous federal rule is to be given to the coal operator. Therefore, McElroy urges this Court to follow that construction here.
In its brief to this Court, McElroy goes to great lengths to discern the intent of the federal Office of Surface Mining regarding whether the surface owner or the coal operator elects the remedy under the analogous federal regulation. We note that the analogous federal regulation also does not specify which party makes the election between compensation and/or repairs of subsidence damage. Moreover, we have based our decision on our State regulation. As discussed above, the federal surface mining regulations are a set of minimum standards, not maximum standards. "The State's program need not be identical to the federal program, as long as its provisions are at least as stringent as those provided for in the federal act." Huffman , 223 W.Va. at 726, 679 S.E.2d at 325 (internal quotation marks and citation omitted).
The Schoenes respond that the plain language of the Coal Mining Act and its rules never identify which party is entitled to elect between the available remedies of compensation or repair. According to the Schoenes, this ambiguity should be resolved by interpreting the Act broadly and liberally in favor of the Act's stated goal of providing surface protection for landowners when coal is mined from their property. Therefore, the Schoenes maintain that they should decide the proper remedy under the West Virginia Code of State Rules § 38-2-16.2.c.2. We agree with the Schoenes. Despite McElroy's argument to the contrary, the rule is silent on the issue of whether the surface owner or the coal operator chooses the remedy for the repair of a surface structure. Although the rule provides that "[t]he operator shall" perform one of two actions, the rule does not indicate that the coal operator is the party who chooses which action to perform. While "silence does not equate to ambiguity[,]" "silence may render a statute ambiguous when the missing subject reasonably is necessary to effectuate the provision as written." State v. Ramos , 306 Conn. 125, 49 A.3d 197, 204 (2012) (citations omitted). We find the rule at issue is ambiguous because it cannot be effectuated until it is determined whether the surface owner or the coal operator chooses the remedy for a damaged surface structure.
As set forth above, "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Smith , 159 W.Va. at 108, 219 S.E.2d at 362, syl. pt. 1. The Legislature expressly set forth its intent in enacting the Coal Mining Act as follows:
(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 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 and social well-being is provided.
W.Va. Code § 22-3-2(b)(1)-(8) (1994). Significantly, seven of the eight purposes of the Act, as articulated by the Legislature, are to protect the public, the environment, surface owners, and owners of minerals other than coal from the adverse effects of coal mining. As noted above, "[t]he West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1, et seq. , is remedial legislation that has as one of its primary purposes the protection of the public from the potentially destructive effects that mining may have on our lands, forests and waters." Antco, Inc., 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt. 3. Finally, we have long held that "[s]tatutes which are remedial in their very nature should be liberally construed to effectuate their purpose." Vest , 138 W.Va. at 661, 76 S.E.2d at 887, syl. pt. 6.
This statute was amended effective June 9, 2016. However, we quote from the version of the statute that was in effect at the time of the events in this case.
Upon application of our law to the construction of the West Virginia Code of State Rules §§ 38-2-16.2.c. to 16.2.c.2., this Court answers the fourth certified question by finding that the surface owner elects whether the coal operator will correct material damage resulting from subsidence to any of the surface owner's structures or facilities by repairing the damage, or by compensating the owner of the structures or facilities in the full amount of the diminution in value caused by the subsidence. We believe that this conclusion is consistent with a liberal construction of the Coal Mining Act and congruous with the purposes of the Act, including the protection of surface owners. See Tatum v. Basin Resources, Inc. , 141 P.3d 863, 871 (Colo. App. 2006) (finding that "the Colorado Surface Coal Mining Reclamation Act and its associated regulations do not confer onto a defendant found to have caused subsidence damage to a plaintiff the power to elect which remedy to provide." (Citation omitted.) ).
The State Department of Environmental Protection or the Legislature can certainly amend the legislative rule to specify whether the coal operator or the surface owner chooses the remedy.
Accordingly, we hold that the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.c.2., which were promulgated pursuant to the West Virginia Surface Coal Mining and Reclamation Act [ West Virginia Code §§ 22-3-1 to 22-3-38 ], provide that when a coal operator causes subsidence damage to structures or facilities, the operator is required to either correct the material damage caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence. The owner of the damaged structures or facilities shall choose between the two remedies.
IV. Conclusion
For the reasons set forth above, we answer the certified questions as follows:
(1) Under West Virginia law, does a deed provision (1902) transferring the right to mine coal "without leaving any support for the overlying strata and without liability for any injury which may result to the surface from the breaking of said strata," prohibit a surface estate owner from pursuing a common law claim for loss of support arising from subsidence caused by the extraction of coal from below the surface?
Answer: Yes.
(2) Assuming the surface lands and residence of a landowner have been materially damaged from subsidence, does the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1 et seq. , (the "Act") authorize an action against the coal mine operator for the damage so arising; or, are landowners only permitted to seek injunctive relief compelling compliance with the Act's provisions? Compare W.Va. Code § 22-3-25(a) with id. § 22-3-25(f), and
(3) (a) If the Act permits a suit for damages, what is the proper measure of damages? Specifically, is a landowner permitted to recover only the diminution in value to the property arising from the subsidence, or can the property owner alternatively recover damages in an amount equal to the cost to repair the property?
(b) Additionally, if the Act permits a suit for damages, can those damages include compensation for "annoyance, inconvenience, aggravation and/or loss of use"?
Answer: A surface owner may commence a civil action against a coal operator pursuant to West Virginia Code § 22-3-25(f) (1994) alleging that injury to the surface owner's person or property was caused through the coal operator's violation of a rule, order, or permit issued under the West Virginia Coal Mining and Reclamation Act [ West Virginia Code §§ 22-3-1 to 22-3-38 ]. If the surface owner proves a violation and that the violation caused the alleged injury, the surface owner may recover monetary damages including, but not limited to, damages for annoyance and inconvenience resulting from the violation. In the event the surface owner is unable to prove that the coal operator violated such rule, order, or permit, or proves the violation but fails to prove that the violation caused the alleged injury, then the surface owner's remedies for subsidence damage are those provided in the West Virginia Code of State Rules §§ 38-2-16.2.c to 38-2-16.2.c.2.
(4) Lastly, the regulations issued under the Act provide that when a coal mine operator causes subsidence damage to the "structures or facilities," the operator must either correct it or "compensate the owner ... in the full amount of the diminution in value" as a result of the mining. See W.Va. Code R. § 38-2-16.c.2; see also id. § 38-2-16.2.c.1. The regulations, however, do not designate which party gets to make this election between remedies if the parties fail to reach an agreement. Between the landowner and the coal mine operator, who elects the appropriate remedy and what standards govern that decision?
Answer: The owner of the structures or facilities chooses the remedy.
Certified Questions Answered.
CHIEF JUSTICE WORKMAN concurs in part, dissents in part, and reserves the right to file a separate opinion.
JUSTICE KETCHUM concurs in part, dissents in part, and reserves the right to file a separate opinion.
JUSTICE WALKER concurs in part, dissents in part, and reserves the right to file a separate opinion.
WORKMAN, C. J., dissenting in part and concurring in part:I concur with the majority's conclusion that a common law claim for loss of surface support does not lie under the certified question as posed by the United States Court of Appeals for the Fourth Circuit. I likewise concur with the majority's conclusion that the Surface Coal Mining and Reclamation Act, West Virginia Code § 22-3-1 (1994) et seq ., (hereinafter "the Act") authorizes an action for damages upon proof of a violation of the Act, as plainly set forth in subsection (f) thereof, and that the Code of State Regulations sets forth a property owner's remedy for subsidence, which alternative remedies are the elective of the property owner. I write separately, however, because I disagree with the majority's curiously obtuse refusal to reach the issues—both implicit and explicit—contained in the Fourth Circuit's certified questions regarding the operation of the various provisions of the Act's "citizen suits" provisions. Despite the Fourth Circuit's carefully framed questions inquiring as to the availability of injunctive relief, the circumstances under which damages may be awarded, and the nature of such damages, the majority opinion inexplicably avoids these issues altogether. Accordingly, I write separately to examine these issues.
In this case, petitioner McElroy Coal Company's (hereinafter "McElroy") operations caused subsidence damage to respondents Michael and Patricia Schoene's (hereinafter the "Schoenes") property. McElroy made an offer to the Schoenes in the amount its expert opined would be necessary to repair the property; the Schoenes rejected it, believing that the sum did not adequately represent the cost of repair. To remedy this disagreement, the Schoenes filed suit, including a common law claim and later, a claim under the Act. Following a tangled procedural history, the case was tried resulting in an appeal to the Fourth Circuit. To resolve the appeal, the Fourth Circuit issued certified questions plainly designed to obtain clarification regarding the operation of the "citizen suit" provisions contained in Section 25 of the Act, West Virginia Code § 22-3-25 (1994).
For purposes of brevity and context, the Fourth Circuit's second certified question, plainly stated, asks whether a property owner may bring an action for subsidence damages under West Virginia Code § 22-3-25(f) or whether he or she is limited to an action "compel[ling] compliance" with the applicable statutory or regulatory provisions under West Virginia Code § 22-3-25(a). Its question includes specific references to these provisions. In response, the majority chooses to elucidate the Fourth Circuit by holding merely that a property owner is entitled to the remedies contained in state regulations. The majority ignores entirely the Fourth Circuit's inquiry about the availability and operation of an action for compliance under subsection (a). In fact, the language of subsection (a) is neither cited nor discussed anywhere in the opinion. In response to the Fourth Circuit's third question—inquiring about the types of damages available in an action under the Act—the majority responds by simply reaching the astoundingly self-evident conclusion that damages under the Act "refer[ ] to monetary compensation[.]" Nowhere does the majority discuss the availability of the specific types of property damages and wholly ignores the Fourth Circuit's inquiry whether damages are limited to diminution in value or cost of repair.
The guidance being sought by these certified questions is borne out by the facts presented in the underlying action, none of which are dignified by the majority. The Fourth Circuit's certified questions ask simply what type of action and concomitant damages, if any, were available to the Schoenes under the facts presented. Rather than exploring the statute, the majority gives the statute and regulations a cursory read and simply reiterates their contents in response to the inquiry. The majority evades entirely the central issue of whether the Schoenes' allegations of failure to comply with the material damage correction regulations gives rise to a subsection (f) claim for violation of a rule, order, or permit. In an effort to lend a modicum of clarity to what little the majority offers, an examination of the statutory language is in order.
The Act makes two separate provisions for "citizen suits," as follows:
(a) ... [A]ny person having an interest which is or may be adversely affected may commence a civil action in the circuit court of the county to which the surface-mining operation is located on the person's own behalf to compel compliance with this article :
(1) ... against any other person who is alleged to be in violation of any rule, order or permit issued pursuant to this article ....
* * *
(f) Any person or property who is injured through the violation by any operator of any rule, order or permit issued pursuant to this article may bring an action for damages , including reasonable attorney and expert witness fees, in any court of competent jurisdiction. ...
(emphasis added). The Fourth Circuit's certified questions, therefore, necessarily seek guidance as to whether, given the disagreement about the value of repairs, the Schoenes merely have an action for compliance with the regulatory requirement that an operator repair property or pay diminution in value, or, whether they may pursue a claim for damages resulting from the subsidence. Implicit in this inquiry is whether a disagreement about the value of repairs is tantamount to a violation of the statute or regulations. However, the majority's inexplicable response to this complex inquiry is simply to restate the provisions of subsection (f), indicating that upon proof of a violation, an action for monetary compensation will lie. To say that this cursory answer is less than edifying is putting it mildly. The opinion offered by the majority tells the Fourth Circuit nothing more than what it already had available to it in the form of the bald language of the statute itself.
As is obvious from the legislative findings, the Act is an effort to "strike a careful balance between the protection of the environment and the economical mining of coal needed to meet energy requirements." W. Va. Code § 22-3-2(a) (1994). To do so, the Legislature mimicked the Federal Act to address mining operations which "result in disturbances of surface and underground areas that ... damag[e] the property of citizens[.]" Id . To do so, subsidence control measures were promulgated by legislative rule. W. Va. C.S.R. § 38-2-16. These regulations require underground mine operators to adopt measures and use technology which prevents subsidence to the extent feasible and "maintain[s] the value and reasonably foreseeable use of surface lands[.]" W. Va. C.S.R. § 38-2-16.2.a.
30 U.S.C. § 1201 (1977)et seq . (the "Surface Mining Control and Reclamation Act")
W. Va. Code §§ 22-3-1 through -33 (1994).
However, in the event of "material damage," the regulations provide for remediation by way of repair or compensation. With respect to the surface land, subsection 16.2.c.1 requires an operator to "[c]orrect any material damage resulting from subsidence ... by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence[.]" As to "structures and facilities," an operator is required to "[e]ither correct material damage resulting from subsidence ... by repairing the damage or compensat[ing] the owner ... in the full amount of the diminution in value resulting from the subsidence." W. Va. C.S.R. § 38-2-16.2.c.2. Accordingly, the Act itself does not contemplate recovery for damages for subsidence inasmuch as the remedy for such event is addressed in the regulatory requirements. The Act represents the Legislature's attempt to balance the necessary likelihood of such damage due to mining operations with conciliatory remediation as required in its regulatory scheme.
See also Syl. Pt. 4, Rose v. Oneida Coal Co ., 195 W. Va. 726, 466 S.E.2d 794 (1995) ("Pursuant to the West Virginia Surface Coal Mining and Reclamation Act, W. Va. Code, 22A–3–14 (1985) [now W. Va. Code, 22–3–14 (1994) ], and 30 U.S.C. § 1266 (1977) of the federal Surface Mining Control and Reclamation Act and their accompanying regulations, the operator of an underground mine is required to correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence.").
Certified Question No. 2 provides:
Assuming the surface lands and residence of a landowner have been materially damaged from subsidence, does the West Virginia Surface Coal Mining and Reclamation Act (W. Va. Code § 22-3-1 et seq. , (the "Act") authorize an action against the coal mine operator for the damage so arising; or, are landowners only permitted to seek injunctive relief compelling compliance with the Act's provisions? Compare W. Va. Code § 22-3-25(a), with id. § 22-3-25(f).
In this regard, the remediation set forth in West Virginia Code of State Regulations § 38-2-16 does not purport to set forth the measure of "damages" for an action under the Act. Rather, the regulations simply mandate what is required of an operator to be in compliance with the Act. To the extent the certified question(s) suggest that damages recoverable in an action under the Act are somehow constrained by this regulation, there is no basis for such a conclusion.
See Syl. Pt. 4, Rose v. Oneida Coal Company , 195 W. Va. 726, 466 S.E.2d 794 (1995).
Given that subsidence is much-expected, and in the absence of a common law action for damages resulting therefrom, it is clear that a property owner is entitled to correction of subsidence damage strictly pursuant to the Code of State Regulations. This remedy is available not as "damages" in an action under the statute; it is a remedy available by operation of law. Therefore to the extent that the Fourth Circuit's certified questions inquire as to what remediation or compensation is available for property damage which occurs as the result of subsidence itself, where common law damages are unavailable, the answer is unquestionably only those remedies provided in the Code of State Regulations. It is with this foundational understanding that the operation of the "citizen suit" provisions of West Virginia Code § 25-3-25(a) and (f) come into greater focus. Given the majority's superficial to non-existent analysis of the statute's various provisions, a deeper evaluation is needed.
In my view, the citizen suit provisions of West Virginia Code § 22-3-25 operate much as the Fourth Circuit intuited in its questions: an action compelling compliance with a rule, order, or permit stands in contrast to an action for damages for violation of a rule, order or permit. In the event of a rule, order, or permit violation, such as an alleged refusal to or an allegedly inadequate offer of repair or compensation as required under West Virginia Code of State Regulations §§ 38-2-16.2.c.1 and 2, a property owner may clearly bring an action to compel such repair or compensation pursuant to West Virginia Code § 22-3-25(a). Tracking the language of the statute, such an action "allege [s ]" that the operator is "in violation of [a] rule ... issued pursuant to this article" and is the mechanism through which a property owner compels the action required of an operator as provided by law. W. Va. Code § 22-3-25(a)(1). Should a property owner prove that he or she is entitled to enforcement of a rule, order, or permit as alleged, such action therefore may result in an order to "compel compliance[.]" W. Va. Code § 22-3-25(a). By way of monetary relief, only those additional sums made available under subsection (d) are specially awarded: "The court in issuing any final order in any action brought pursuant to subsection (a) of this section may award costs of litigation, including reasonable attorney and expert witness fees, to any party whenever the court determines such award is appropriate." W. Va. Code § 22-3-25(d). Subsection (d) makes no provision for an award of special or general damages inasmuch as an action under subsection (a) is injunctive and/or declaratory in nature and is simply for the purpose of enforcing those remedies or actions which are already required pursuant to regulation, an order or permit. See W. Va. Code § 22-3-25(d) ("The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security.").
Against the backdrop of the case at bar, this construction necessarily begs the question of whether a mere dispute about repair value is tantamount to a "violation" of the Act and whether a court or jury should become involved in determining a reasonable value for repair and/or diminution, which may differ both from the amount being offered by the operator and the amount being demanded by the property owner. In the case at bar, upon the issue being submitted to the jury, it returned a figure for repair somewhere between the two parties' respective positions.
The majority side-steps this issue by stating simply that whether a violation was proven is not a question properly before the Court. In fairness to the majority, the certified questions presented did not squarely posit this query. However, in fairness to the certifying court, this Court historically does not hesitate to reformulate a certified question when necessary to fully address critical issues fairly raised therein. See Syl. Pt. 3, in part, Kincaid v. Mangum , 189 W. Va. 404, 432 S.E.2d 74 (1993) ("When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it ...."); see, e.g., Landis v. Hearthmark, LLC , 232 W. Va. 64, 70 n.9, 750 S.E.2d 280, 286 n.9 (2013) (reformulating certified question from United States District Court to "focus solely on the key issue").
Resolution of this issue requires a practical approach. Obviously, to compel compliance with the regulation, a determination as to the reasonable repairs or compensation required must first be made. The statute appears to anticipate the use of expert testimony to reach such a determination: "The court in issuing any final order in any action brought pursuant to subsection (a) of this section may award costs of litigation, including reasonable attorney and expert witness fees , to any party whenever the court determines such award is appropriate." W. Va. Code § 22-3-25(d) (emphasis added). Moreover, the statute appears to anticipate a situation where there is no "clear" victor, permitting reasonable fees "whenever the court determines such award is appropriate." Id . This provision therefore appears to envisage the potential for both genuine, good faith disputes and situations where the nature of the dispute or a party's conduct justifies an award of fees. Accordingly, it would seem inequitable to summarily conclude that the resolution of a valuation dispute necessarily dictates whether a violation has occurred.
West Virginia Code of State Rule § 38-2-16.2.c provides:
Material damage. Material damage in the context of this section and 3.12 of the rule means: any functional impairment of surface lands, features, structures or facilities; any physical change that has a significant adverse impact on the affected land's capability to support current or reasonably foreseeable uses or causes significant loss in production or income; or any significant change in the condition, appearance or utility of any structure from its pre-subsidence condition. The operator shall:
In contrast, when the violation of a rule, order, or permit itself causes damages to "person or property," the Act provides for an action for damages in subsection (f). As discussed, this subsection does not contemplate personal or property damage caused by the subsidence itself, given that subsidence is contemplated under the Act and remedies are made available therefor in the Code of State Regulations. Rather, it allows for damages which are caused by the violation of a rule, order, or permit itself. In the event, such as the case at bar, of an operator which is determined to have failed to repair or compensate a property owner for subsidence as required by West Virginia Code of State Regulations §§ 33-2-16.2.c.1 and 2, damages occasioned by that failure are recoverable, whether they be personal or property damages.
Such a scheme is akin to that employed in "bad faith" actions, which contemplates recovery not for the underlying injuries or damages giving rise to the insurance claim, but those damages resulting from the "bad faith" itself. See, e.g., Syl. Pt., 1, in part, Hayseeds, Inc. v. State Farm Fire & Cas ., 177 W. Va. 323, 324, 352 S.E.2d 73, 74 (1986) (allowing recovery of attorney fees and "damages for net economic loss caused by the delay in settlement, and damages for aggravation and inconvenience" where insured substantially prevails against insurer); Jenkins v. J. C. Penney Cas. Ins. Co ., 167 W. Va. 597, 609 n.12, 280 S.E.2d 252, 259 n.12 (1981), overruled on other grounds by State ex rel. State Farm Fire & Cas. Co. v. Madden , 192 W. Va. 155, 451 S.E.2d 721 (1994) (explaining that damages resulting from unfair insurance claim settlement practices "obviously does not serve to replicate the damages obtained in the underlying claim" but that "increased costs and expenses including the increase in attorney's fees resulting from the failure to offer a prompt fair settlement" is recoverable).
West Virginia Code of State Rules § 38-2-16.2.c.1 provides: "Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence[.]"
Finally, despite the majority's bizarre refusal to articulate the types of damages recoverable in an action under subsection (f)—with the exception of annoyance and inconvenience—it seems clear that the absence of restrictive language in the statute suggests that "damages" are those afforded by common law for injury to "[p]erson or property." W. Va. Code § 22-3-25(f). The critical distinction which must be made at the trial court level, however, is the differentiation between those damages caused by the subsidence, and those caused by the violation of the rule, order, or permit. While this Court has recognized the availability of a wide range of damages for injury to residential real property, see Brooks v. City of Huntington, 234 W.Va. 607, 768 S.E.2d 97 (2014), only those damages which are causally related to the violation are recoverable under subsection (f) of the Act. Moreover, as the majority casually notes, but fails to fully examine, the statute provides for injury to "person or property," opening up a gamut of potentially available categories of damages which do not relate strictly to property damage. W. Va. Code § 22-3-25(f) (emphasis added).
The issues presented herein are of critical importance, not only to the litigants in the case at bar, but to the citizens of the State and the coal industry as a whole. The cursory treatment afforded by the majority provides little to no guidance to the citizenry or industry, much less the certifying court. While I concur in the holdings set forth by the majority—in large part because they are of such breadth as to render them fairly inarguable—I dissent to the majority's unsatisfying and inadequate treatment of the certified questions presented.
Justice Ketchum, concurring, in part, and dissenting, in part:
I disagree with the majority's answer to the first certified question. The federal district judge thoroughly examined the West Virginia law and correctly determined that the waiver of subjacent support in the 1902 deed did not prohibit the Plaintiffs from pursuing a common law claim for subsidence damage to their home.
The resolution of this issue only required a simple application of this Court's plain, clear, unambiguous holding in Cogar v. Sommerville , 180 W.Va. 714, 379 S.E.2d 764 (1989). In Syllabus Point 3 of Cogar , the Court held, in relevant part, "A release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties at the time of its execution ." (Emphasis added). Thus, a waiver of subjacent support is only valid when the type of mining activity was "within the contemplation" of the original parties to the deed containing the waiver. The Court's holding in Cogar followed a long line of mining cases. As it explained, the Court's ruling was
consistent with our mining cases holding that a severance deed is to be construed in light of the conditions and reasonable expectations of the parties at the time it is made. As a consequence, mining methods not contemplated at the time of the severance deed may not be utilized. See Brown v. Crozer Coal & Land Co., 144 W.Va. 296, 107 S.E.2d 777 (1959) (auger mining); West Virginia-Pittsburgh Coal Co. v. Strong , 129 W.Va. 832, 42 S.E.2d 46 (1947) (strip mining). It would be impossible to conceive that the parties to old severance deeds would have any contemplation of waiving future statutory rights.
Furthermore, in Syllabus Point 1, in part, of Winnings v. Wilpen Coal Co., 134 W.Va. 387, 59 S.E.2d 655 (1950), we held that a coal severance deed containing broad mining rights would not be construed to waive the right of subjacent support "unless [the surface owner's] intention so to do clearly appears from express language or by necessary implication."
...
Finally, our conclusion is in accord with the general principle that a release or waiver of liability or damages covers only those items that are within the ordinary contemplation of the parties . As we stated in Syllabus Point 2 of Conley v. Hill , 115 W.Va. 175, 174 S.E. 883 (1934), overruled on other grounds, Thornton v. Charleston Area Medical Center , 158 W.Va. 504, 213 S.E.2d 102 (1975) :
"A release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties at the time of its execution."
Cogar , 180 W.Va. at 719-20, 379 S.E.2d at 769-70 (emphasis added).
The deed in the present case was made in 1902. In 1902, most coal was mined by miners using picks and shovels. Additionally, most coal was removed from coal mines by wagon or carts on rails pulled by mules. The defendants' mining operations under the plaintiffs' property in the instant case was done using the longwall method of mining. Longwall mining uses huge million dollar machines that rip out tons of coal in seconds, shooting it out of the mine on continuously running conveyor belts. The federal district judge did extensive research on longwall mining and concluded as follows:
This Court holds that the broad form waiver of subjacent support is not a valid waiver against the subsidence damage caused by longwall mining. Longwall mining was unknown in Marshall County and to the lessors at the time the instrument was executed. Longwall mining provides almost a certainty of significant subsidence and the loss of all natural water sources. On the other hand, room and pillar mining, that known in 1902, carries with it only the possibility of subsidence and not commonly the loss of water resources.
Schoene v. McElroy Coal Co., 2016 WL 397636, at 6 (N.D. W.Va. Jan. 29, 2016) (emphasis added).The federal district judge was correct in ruling that the waiver of subjacent support was not enforceable because longwall mining was unknown in Marshall County in 1902, and, therefore, not contemplated by the parties to the 1902 deed.
I agree with the majority opinion's answers to the other certified questions.
WALKER, J., concurring, in part, and dissenting, in part:
(Filed April 13, 2018)
I agree with the majority's answer to the first certified question finding valid the deed waivers dating back to 1902. Likewise, I agree with the majority's answer to the third question allowing for damages where a proven violation of the West Virginia Surface Coal Mining and Reclamation Act1 (Act) exists. Though I ultimately agree with the majority's answer to the second question regarding enforcement of the Act, I write separately because I believe the majority's analysis is unclear. Finally, as to the majority's answer to the fourth question regarding the appropriate party to select the remedy, I respectfully dissent.
In my view, the Fourth Circuit's second question2 requires us to undertake a two-part analysis. The first part of the question requires us to assess whether the Act authorizes an action against a coal mine operator for damage to a landowner's property arising from subsidence alone. Or, alternatively, whether mere subsidence, absent something more, limits the landowner to injunctive relief. Second, the Fourth Circuit requests that we compare West Virginia Code § 22-3-25(a) with § 22-3-25(f). In doing so, we step away from damage arising from subsidence alone and consider a hypothetical situation where a coal mine operator has violated the Act, both with and without resulting injury. Though I ultimately reach the same conclusion as the majority on both points, I write separately to underline the critically important distinction between damage resulting from subsidence alone and injury resulting from a violation of the Act, as well as to discuss the alleged violation in this matter.
Simply put, if a landowner's surface land or residence has been materially damaged from subsidence alone, the landowner's remedy is limited to compelling the coal mine operator to comply with the Act. As the majority points out, this Court has found that subsidence is a natural consequence of underground mining and not necessarily evidence of a violation of the Act.3 Likewise, the Act's accompanying regulations contemplate subsidence by long-wall mining— West Virginia Code of State Rules § 38-2-16.2.c4 defines material damage resulting from subsidence, while § 38-2-16.2.c.15 and -16.2.c.2 provide the methods by which it may be corrected. Additionally, as the majority concludes, these regulations act together to limit a landowner who has suffered damage from subsidence alone to the injunctive relief provided therein.
West Virginia Code of State Rules § 38-2-16.2.c.2 provides: "Either correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence. ..."
Next, I turn to the comparison of West Virginia Code § 22-3-25(a) with § 22-3-25(f) —a step that the majority opinion never quite reaches. West Virginia Code § 22-3-25(a) provides in relevant part:
(a) Except as provided in subsection (b) of this section, any person having an interest which is or may be adversely affected may commence a civil action in the circuit court of the county to which the surface-mining operation is located on the person's own behalf to compel compliance with this article :
(1) Against the State of West Virginia or any other governmental instrumentality or agency thereof, to the extent permitted by the West Virginia Constitution and by law, which is alleged to be in violation of the provisions of this article or any rule, order or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule , order or permit issued pursuant to this article. ... [ ]
Emphasis added.
West Virginia Code § 22-3-25(f), however, states:
(f) Any person or property who is injured through the violation by any operator of any rule, order or permit issued pursuant to this article may bring an action for damages, including reasonable attorney and expert witness fees, in any court of competent jurisdiction. Nothing in this subsection affects the rights established by or limits imposed under state workers' compensation laws.[ ]
Emphasis added.
The plain language of West Virginia Code § 22-3-25(a) authorizes an action to compel performance against an operator only where the operator has violated a rule, order or permit pursuant to the Act. And the plain language of West Virginia Code § 22-3-25(f) is triggered when injury results from an operator's violation of the Act, permitting an action for damages. I, once again, reach the same conclusion as the majority. But the majority stops there, moving straight into a damages analysis. Despite a lengthy recitation of the facts in this case, the majority ignores the elephant in the room and in my view stops short of providing any meaningful guidance to the Fourth Circuit.
This case turns on whether McElroy violated the Act and whether the Schoenes suffered an injury because of that violation. The Schoenes argue that McElroy violated its duty under West Virginia Code of State Rules § 38-2-16.2.c.2 to repair or compensate them for damage resulting from subsidence by "dragging its feet and obstructing the compensation process for nearly three years." The record, however, shows that the Schoenes refused offers of compensation for damages and refused to communicate with McElroy. Rather than partaking in meaningful discourse with McElroy as it attempted to remedy the damage to the Schoenes' residence, it appears the Schoenes simply elected to file a lawsuit instead.
It seems to me that, in order to find a violation of the Act in this case, one would need to find that a coal mine operator's refusal to pay whatever amount a landowner deems appropriate—no matter how outrageous —constitutes a violation, such that a landowner may circumvent the statute and instead pursue an action for damages.
The Schoenes maintained until trial that $870,720 in repairs were required to remedy subsidence damage to the residence and $1,126,378 would be necessary to repair the land (later conceding to $322,440 at trial).
Although the jury determined that the diminution in value to the Schoenes' residence was $94,000, the District Court awarded $547,000, consisting of $350,000 to repair the residence, $172,000 to repair the land, and $25,000 for annoyance, inconvenience, aggravation, and/or loss of use.
In responding to the fourth question, the majority concludes that the Act is ambiguous as it opines that the associated regulations are silent as to who—between the coal mine operator and the landowner—is to choose the remedy for the repair of a surface structure. I disagree.
Certified Question Number 4 provides:
Lastly, the regulations issued under the Act provide that when a coal mine operator causes subsidence damage to the "structures or facilities," the operator must either correct it or "compensate the owner...in the full amount of the diminution in value" as a result of the mining. See W. Va. Code R. § 38-2-16.2.c.2 ; see also id. § 38-2-16.2.c.1. The regulations, however, do not designate which party gets to make this election between remedies if the parties fail to reach an agreement. Between the landowner and the coal mine operator, who elects the appropriate remedy and what standards govern that decision?
West Virginia Code of State Rules §§ 38-2-16.2.c and 16.2.c.2 provide that "[t]he operator shall ...[e]ither correct material damage resulting from subsidence caused to any structures or facilities...or compensate the owner of such structures or facilities in the full amount[.]" Though certainly a minor technical point, Merriam Webster defines "either" as "being the one or the other of two." Accordingly, the plain language of the statute is that the operator must do one of two things: "correct material damage...or compensate the owner."
After finding the rule to be ambiguous, the majority embarks on a remedial-statute interpretative analysis that amounts to nothing more than judicial improvisation. Essentially, the majority reasons, since the Act is remedial legislation, it should be liberally construed to effectuate its purpose. It concludes that since most of the purposes of the Act are to protect the public, the environment, and surface owners from adverse effects of coal mining, it should be liberally construed to work in the best interests of those groups.
But this approach fails to acknowledge the practical function of the Act. Notwithstanding the valid deed waivers for damage by subsidence, the Act undermines a coal operator's common law property rights by requiring it to remedy damage resulting therefrom. This Court has stated that "[i]f the sense of a statute be doubtful, such construction should be given, if possible, as will not conflict with general principles of law." Considering this, along with the fact that a coal mine operator bears the burden of remedying the damage, the Act should be narrowly construed to allow the coal mine operator to elect which remedy he must fulfill—either correcting or compensating.
State ex rel. Keller v. Grymes , 65 W. Va. 451, 456, 64 S.E. 728, 730 (1909) (quoting Old Dominion Building & Loan Ass'n v. Sohn , 54 W. Va. 101, 46 S.E. 222 (1903) ).
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