Anderson & Anderson Contractors, Inc. v. Latimer

• Decision Date: 27 March 1979
• Docket Number: No. 13976,13976
• Citation: 257 S.E.2d 878,162 W.Va. 803
• Court: West Virginia Supreme Court
• Parties: , 13 ERC 1697 ANDERSON & ANDERSON CONTRACTORS, INC., et al. v. Ira S. LATIMER, Jr., Director, et al., etc., Succeeded by David C. Callaghan, et al.

Page 878

257 S.E.2d 878

162 W.Va. 803, 13 ERC 1697

ANDERSON & ANDERSON CONTRACTORS, INC., et al. v. Ira S. LATIMER, Jr., Director, et al., etc., Succeeded by

David C. Callaghan, et al.

No. 13976.

Supreme Court of Appeals of West Virginia.

March 27, 1979.

Syllabus by the Court

1. Where W.Va.Code, 20-6-31 (1967) provides that: "(t)he provisions of this section shall not be construed to require the regrading or replanting of any area on which such (reclamation) work was satisfactorily performed prior to the effective date of the statute or rule and regulation . . ." the West Virginia Department of Natural Resources may not issue rules and regulations which have the effect of requiring the upgrading of reclamation work already completed according to the rules and regulations in effect prior to the effective date of the 1971 amendments to the Surface Mining and Reclamation Act of 1967.

2. Where the words "satisfactorily performed" are used in W.Va.Code, 20-6-31 (1967) an objective standard is established which refers to the completion of work according to published statutes, rules, and regulations; it is not a subjective standard requiring the actual approval of any administrative officer and does not countenance arbitrary or capricious requirements from such officers.

3. W.Va.Code, 20-6-14a (1971) is not unconstitutional because it permits an inspector to issue an order requiring immediate cessation of mining operations as a prompt post-cessation hearing is mandated by the same statute. When Code, 20-6-14a (1971) says that the operator may "immediately appeal," that Code section means exactly what it says, and unreasonable delay in affording a prompt hearing upon demand may deny the administrative agency jurisdiction to compel cessation in the same way that unnecessary delay on the part of a circuit court in granting a hearing on a motion to dissolve a preliminary injunction may vitiate a circuit court's jurisdiction to enforce a preliminary injunction.

Walter W. Burton, Princeton, Pauley, Curry & Thaxton, Arden J. Curry, Thomas H. Vanderford, IV, Charleston, Robert H. Bork, New Haven, Conn., for appellants.

Chauncey H. Browning, Atty. Gen., Nicholas W. Johnson, Deputy Atty. Gen., Richard L. Earles, Robert D. Pollitt, Asst. Attys. Gen., Charleston, for appellees.

NEELY, Justice:

This appeal challenges the retroactive application of surface mining reclamation standards enacted in 1971 to operations where the reclamation was completed before the effective date of the 1971 enactments; further, appellants challenge the constitutionality of W.Va.Code, 20-6-14a (1971) which provides for pre-hearing cessation of surface mining operations upon an inspector's order. Appellants, owners, contractors, lessees and sublessees of various surface mining operations, instituted an action in the Circuit Court of Kanawha County against appellees, individual members of the Reclamation Commission, seeking a declaratory judgment and an injunction to prevent wholesale enforcement of the 1971 enactments against some of their operations. That court determined that the 1971 enactments may be applied in their entirety to surface mining operations notwithstanding completed reclamation before the effective date of the new standards and further held that W.Va.Code, 20-6-14a (1971) concerning pre-hearing cessation is constitutional. We reverse in part, affirm in part, and remand.

I

The first question we must decide is whether the 1971 amendments to the Surface Mining and Reclamation Act of 1967 apply in their entirety to surface mining operations begun under permits issued before the effective date (13 March 1971) of the 1971 amendments. In 1967 the West Virginia Legislature enacted what was the first comprehensive system for regulation of the surface mining industry in our State. One provision of the comprehensive act provided in pertinent part, that:

Irrespective of the date of issuance of a permit, all operators shall immediately conform to any statutes enacted or rules or regulations adopted on the effective date of such statute or rule and regulation. The provisions of this section shall not be construed to require the regrading or replanting of any area on which such work was satisfactorily performed prior to the effective date of the statute or rule and regulation. W.Va.Code, 20-6-31 (1967).

This section was not amended in 1971 and thus remained the law even After the passage of the 1971 amendment. It should be obvious that W.Va.Code, 20-6-31 (1967) informed surface mining operators that the standards under which they obtained a permit might be changed and that the new standards would be binding on their operations; however, retroactivity would apply Only to the extent of work Not satisfactorily completed by the effective date of the new standards. In 1971, while work was going forward under various surface mining permits issued pursuant to the 1967 Act, the Legislature enacted new regrading and reclamation standards including, for example, a thirty foot limitation on the height of highwalls, W.Va.Code, 20-6-13 (1971). In 1972 the West Virginia Department of Natural Resources issued regulations under the 1971 enactments including West Virginia Surface Mining Reclamation Regulation § 3.01 which provides:

Conversion Any operator holding a valid surface mining permit issued prior to the effective date of these regulations, shall within 60 days after the effective date thereof, convert such permit and bond or other securities posted therefor to comply with all the provisions of Article 6, Chapter 20, Code of West Virginia, as amended, and all rules and regulations promulgated thereunder, if mining operations are to continue after said date. The provisions of this regulation shall not be construed to require the regrading or replanting of any area where such work was satisfactorily performed And approved prior to the effective date of these regulations. (Emphasis added).

The underlined portion of the quoted regulation adds a new requirement of "approval" to W.Va.Code, 20-6-31 (1967) as opposed to the statute's requirement that the work just be satisfactorily performed. ¹ Appellants contend, and we agree, that the effect of the added requirement is to make the 1971 standards completely retroactive (as opposed to partially retroactive as guaranteed by W.Va.Code, 20-6-31 (1967)) since according to the Department of Natural Resources "approved" means "released" and a permit can only be "released" after All reclamation has been completed, i. e., the final reclamation map has been submitted and the reclamation bond has been released. Consequently, the regulation quoted above insures that no operation mining under a pre-1971 permit which was still in operation in 1971 could have any "approved" work. This seems to leave operators working under pre-1971 permits three choices: (1) the operator can stop mining under the permit and get his bond released by reclaiming under the 1967 standards; (2) the operator can conform to the 1971 reclamation standards only as to land not satisfactorily regraded and replanted prior to the effective date of the 1971 amendments; or, (3) the operator can completely accept the 1971 standards by redoing work satisfactorily completed under 1967 standards. None of the choices is attractive: the first would result in abandonment of valuable property; the second could result in a perpetual ban on obtaining any future permits to mine coal in West Virginia for failure to convert a permit under Reg. § 3.01; and, the third would confound legitimate business expectations, since the coal operators were lead by Code, 20-6-31 (1967) to rely on the promise that satisfactorily reclaimed land under the 1967 standards would be accepted. ²

We still must determine whether Reg. § 3.01 has any authority other than the statutes covering the same subject matter. Obviously it does not. W.Va.Code, 20-6-24 (1967) provides that:

The commission (Reclamation Commission) shall promulgate rules and regulations, in accordance with the provisions of chapter twenty-nine-A ( § 29A-1-1 et seq.) of said Code, for the effective administration of this article.

Although an agency may have power to promulgate rules and regulations, the rules and regulations must be reasonable and conform to the laws enacted by the Legislature. Sheppe v. West Virginia Bd. of Dental Exmrs., 147 W.Va. 473, 128 S.E.2d 620 (1962). By West Virginia Surface Mining Reclamation Regulation § 3.01, the West Virginia Department of Natural Resources has attempted to make completely retroactive statutory provisions which were clearly intended by the Legislature to have only limited retroactivity; therefore, the regulation must fail. We were recently confronted with another regulation in excess of statutory authority in the case of Walls v. Miller, W.Va., 251 S.E.2d 491 (1978) where the Director of the West Virginia Department of Mines issued regulations permitting men to be in by equipment contrary to W.Va.Code, 22-2-6 (1971) which provides that no person shall be in by equipment in the ventilating split while such equipment is being moved. We held in that case that the legislation had to be interpreted exactly as written, and we hold the same with regard to the present question regarding reclamation.

Of course, appellants can avail themselves of pre-1971 standards only for work "satisfactorily performed," W.Va.Code, 20-6-31 (1967), and, therefore, we note that whether work has been "satisfactorily performed" is to be determined by the objective standard of what a reasonable man knowledgeable about surface mining would consider satisfactory performance according to the statutes, rules, and regulations in effect under the 1967 law. Certainly it would be an ironic result if the Legislature's guarantee or predictability with regard to reclamation standards could be rendered a nullity by permitting the question of "satisfactory performance" to be resolved entirely...