Blankenship v. Consolidation Coal Co., 030917 FED4, 15-2480

Attorney:April Dawn Ferrebee, MASTERS LAW FIRM, LC, Charleston, West Virginia; Terrence Shea Cook, T. SHEA COOK, PC, Richlands, Virginia, for Appellants. James F. Neale, Jonathan Todd Blank, MCGUIREWOODS LLP, Charlottesville, Virginia, for Appellees. Marvin W. Masters, MASTERS LAW FIRM, LC, Charleston, We...
Judge Panel:Before NIEMEYER, KING, and AGEE, Circuit Judges. Judge Niemeyer wrote the opinion, in which Judge King and Judge Agee joined.
Opinion Judge:NIEMEYER, CIRCUIT JUDGE.
Party Name:NEAL BLANKENSHIP; EMMA GAY BLANKENSHIP, Plaintiffs - Appellants, v. CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants-Appellees, and CONSOL ENERGY, INC., a Delaware Corporation, Defendant. DIANNA L. GRAHAM; ANNA PEARL RATLIFF; IRA GORDON RATLIFF; CONNIE RATLIFF, Plaintiffs - ...
Case Date:March 09, 2017
Docket Nº:15-2480, 15-2482
 
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NEAL BLANKENSHIP; EMMA GAY BLANKENSHIP, Plaintiffs - Appellants,

v.

CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants-Appellees,

and

CONSOL ENERGY, INC., a Delaware Corporation, Defendant.

DIANNA L. GRAHAM; ANNA PEARL RATLIFF; IRA GORDON RATLIFF; CONNIE RATLIFF, Plaintiffs - Appellants,

v.

CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants-Appellees,

and

CNX GAS COMPANY, LLC, a Virginia Limited Liability Company; CONSOL ENERGY, INC., a Delaware Corporation, Defendants.

Nos. 15-2480, 15-2482

United States Court of Appeals, Fourth Circuit

March 9, 2017

          Argued: December 8, 2016

         Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:14-cv-00048-JPJ-PMS; 1:13-cv-00011-JPJ-PMS)

         Affirmed

         ARGUED:

          April Dawn Ferrebee, MASTERS LAW FIRM, LC, Charleston, West Virginia; Terrence Shea Cook, T. SHEA COOK, PC, Richlands, Virginia, for Appellants.

          James F. Neale, Jonathan Todd Blank, MCGUIREWOODS LLP, Charlottesville, Virginia, for Appellees.

         ON BRIEF:

          Marvin W. Masters, MASTERS LAW FIRM, LC, Charleston, West Virginia, for Appellants.

          Larissa LPC Sneathern, Charlottesville, Virginia, Tennille J. Checkovich, Lena L. Busscher, MCGUIREWOODS LLP, Richmond, Virginia; David Grant Altizer, Mandy Varney French, ALTIZER, WALK AND WHITE PLLC, for Appellees.

          Before NIEMEYER, KING, and AGEE, Circuit Judges.

          Judge Niemeyer wrote the opinion, in which Judge King and Judge Agee joined.

          NIEMEYER, CIRCUIT JUDGE.

         In March 1994, Consolidation Coal Company obtained the necessary government permit to "dewater" its Buchanan Mine, an underground coal mine in Buchanan County, Virginia. It then began to pump the water from its mine into the nearby Beatrice Mine, an exhausted coal mine owned by Island Creek Coal Company, which authorized Consolidation Coal to do so. Consolidation Coal completed its dewatering operation in 2003.

         More than 15 years after Consolidation Coal began its dewatering operation, the plaintiffs, who own property over portions of the Beatrice Mine, commenced two different but parallel actions in 2011 and 2013 against Consolidation Coal, Island Creek Coal, and others, asserting state causes of action for trespass, negligence, nuisance, and related torts. The complaints alleged that, by filling the Beatrice Mine with water, Consolidation Coal damaged the plaintiffs' property interests in the exhausted Beatrice Mine and unjustly enriched itself. They demanded hundreds of millions of dollars in damages, punitive damages, and injunctive relief.

         The district court granted the defendants' motions for summary judgment on the ground that Virginia's statutes of limitations governed and barred the plaintiffs' claims and that the plaintiffs could not, as they argued, benefit from the discovery rule provided by the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675.

         Challenging the district court's rulings, the plaintiffs mainly contend on appeal that CERCLA's discovery rule preempts Virginia's statutes of limitations and, as a result, Virginia's statutes of limitations began to run when the plaintiffs knew or should have known of their alleged injury. 42 U.S.C. § 9658. The plaintiffs assert that, because they did not learn of their claims until late 2010 or early 2011, their actions filed in 2011 and 2013 were timely.

         For the reasons that follow, we affirm the judgments of the district court.

         I

         Because Consolidation Coal's mining operations in the Buchanan Mine were being hampered by the accumulation of water, Consolidation Coal sought to pump the water from the mine into the nearby Beatrice Mine, which had been exhausted in 1972. To undertake this "dewatering" operation, it reached an agreement with Island Creek Coal, which owned the Beatrice Mine. It also applied for a revision to its existing mining permit from the Virginia Department of Mines, Minerals and Energy, a division of the Department of Mined Land Reclamation, and gave formal notice to the U.S. Department of Labor's Mine Safety and Health Administration. After submitting its application, it published four notices of its application in a local newspaper and filed the actual application for public view at the local courthouse, as required by law.

         The notice that Consolidation Coal published informed the public of its intent "to Establish a New Mine Dewatering Pump System for Coal Surface Mining/NPDES Permit"; advised the public that the application was on file for public view at the Buchanan County Courthouse; and invited "any person whose interests [were] or [might] be adversely affected . . . [to] submit written comments or objections concerning the proposed change." The application on public file at the Buchanan County Courthouse further described the intent of the proposed operation to "transfer . . . mine water from the Buchanan Mine to the Beatrice Mine via overland pipe" and provided the details of where the operation was to take place.

         The Virginia Department of Mines, Minerals and Energy approved Consolidation Coal's application in March 1994, and Consolidation Coal then began pumping water from the Buchanan Mine into the Beatrice Mine, completing its activities in 2003.

         During 2005 and 2006, numerous local newspaper articles reported the continuing protests by local citizens over Consolidation Coal's mining activities and repeatedly referred to Consolidation Coal's dewatering operation.

         In April 2013, about 19 years after Consolidation Coal began dewatering the Buchanan Mine, Neal Blankenship and Emma Gay Blankenship, who own property over a portion of the Beatrice Mine, commenced an action in state court against Consolidation Coal, Island Creek Coal, and others. After voluntarily dismissing that action without prejudice, they commenced this action in federal court on July 29, 2014, invoking diversity jurisdiction and alleging state law claims of trespass, unjust enrichment, negligence, nuisance, and waste. They demanded over $500 million in damages, $350, 000 per instance of trespass in punitive damages, and injunctive relief.

         Dianna Graham, Anna Pearl Ratliff, Ira Gordon Ratliff, and Connie Ratliff, also property owners over a portion of Beatrice Mine, commenced a separate action in state court against Consolidation Coal, Island...

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