Curnutte v. Callaghan

• Decision Date: 14 December 1992
• Docket Number: No. 21202,21202
• Court: West Virginia Supreme Court
• Parties: John CURNUTTE and Vicki Nickell, Plaintiffs Below, Appellants, v. David CALLAGHAN, Director, West Virginia Division of Environmental Protection, Defendant Below, Appellee, LYNN BRANCH COAL COMPANY, INC., Intervenor.

Page 170

425 S.E.2d 170

188 W.Va. 494

John CURNUTTE and Vicki Nickell, Plaintiffs Below, Appellants, v. David CALLAGHAN, Director, West Virginia Division of

Environmental Protection, Defendant Below, Appellee,

LYNN BRANCH COAL COMPANY, INC., Intervenor.

No. 21202.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1992.

Decided Dec. 14, 1992.

Syllabus by the Court

1. Under the definition of valid existing rights for haul roads provided in 38 2. "When the language of a regulation promulgated pursuant to the West Virginia Surface Mining and Reclamation Act, W.Va.Code, 22A-3-1 et seq., is clear and unambiguous, the plain meaning of the regulation is to be accepted and followed without resorting to the rules of interpretation or construction." Syl. pt. 1, State ex rel. Laurel Mountain v. Callaghan, 187 W.Va. 266, 418 S.E.2d 580 (1992).

[188 W.Va. 495] W.Va.C.S.R. § 2-2.129 (1992), a permit applicant may establish valid existing rights for a coal haul road if the applicant demonstrates that the proposed road was in existence prior to August 3, 1977.

John T. McFerrin, Charleston, for appellants.

Franklin Lash, West Virginia Div. of Environmental Protection, Nitro, for appellee.

Robert G. McLusky, Jackson & Kelly, Charleston, for intervenor.

McHUGH, Chief Justice:

The appellants, John Curnutte and Vicki Nickell, appeal the final order of the Circuit Court of Kanawha County which dismissed their complaint against the appellee, David Callaghan, Director of the Environmental Protection Agency, for failure to state a claim upon which relief can be granted. Lynn Branch Coal Company, Inc. (hereinafter "Lynn Branch") has intervened in these proceedings.

I

The dispute in the case before us arises from the application for and issuance of a surface mining permit to Lynn Branch for the surface effects and operations associated with its proposed deep mine located off of Route 44 in Logan County, West Virginia. Lynn Branch intends to gain access from Route 44 to the mine entry by way of a private road which has been in existence for many years. The use of the private road to gain access to the site of the mining operations is part of the surface mine under W.Va.Code, 22A-3-3(w)(2) [1991]. ¹

In October of 1991, the appellants filed a complaint and petition for temporary injunction seeking to enjoin the West Virginia Division of Environmental Protection (hereinafter "DEP") from issuing a surface mining permit to Lynn Branch. The appellants maintained that under the provisions of the West Virginia Surface Coal Mining and Reclamation Act (hereinafter "WVSCMRA"), specifically, W.Va.Code, 22A-3-22(d) [1991], Lynn Branch is prohibited from using the private road to gain access to the mine unless it can establish that the road for which it claims to have valid existing rights was used to transport coal prior to August 3, 1977. Approximately one month after the complaint and motion for temporary injunction were filed, the circuit court entered an order denying the motion for temporary injunction and dismissing the complaint.

Thereafter, the appellants filed a petition for appeal of the circuit court's order, and a motion for a temporary injunction, which this Court denied. The appellants then filed a second petition for appeal, and also renewed their motion for a temporary injunction. The appellants' second petition for appeal was accepted by this Court, and a few weeks later, DEP issued a surface mining permit to Lynn Branch. This Court then granted the appellants' motion for temporary injunction during the pendency of this appeal.

On October 22, 1992, Lynn Branch filed a motion to dissolve the injunction and to dismiss the appeal on the grounds that the appellants had withdrawn their appeal of the permit before the Board of Reclamation. The appellants subsequently filed a response to that motion.

II

The sole issue before this Court is whether a private road in existence prior to August 3, 1977, qualifies under the "valid existing rights" exception under W.Va.

[188 W.Va. 496] Code, 22A-3-22(d) [1991] and 38 W.Va.C.S.R. § 2-2.129 (1992). The appellants argue that valid existing rights under WVSCMRA cannot be used to create new rights which did not exist prior to August 3, 1977. The appellee and Lynn Branch contend that, under the federal and state regulations defining valid existing rights with respect to haul roads, any road in existence prior to August 3, 1977, would qualify for use as a coal haul road.

This legislature enacted the WVSCMRA to expand the state's protection of the public and the environment from the adverse effects of surface-mining operations through effective control of those operations, while assuring that coal production necessary to the nation's energy requirements and the state's economic well-being is provided. ² See Russell v. Island Creek Coal Co., 182 W.Va. 506, 511, 389 S.E.2d 194, 199 (1989). As part of the procedures established to ensure that surface-mining operations are conducted in a manner to adequately protect both the public and the environment, W.Va.Code, 22A-3-9 [1991] sets forth certain requirements which must be met for all surface mine permit applications. The applicant has the burden of establishing that the application is in compliance with all the requirements of WVSCMRA. W.Va.Code, 22A-3-18(b) [1991]. Our discussion of these requirements in the present case, however, is limited to those requirements involving the use of existing roads for hauling coal from the surface mine site.

As we pointed out earlier, the use of existing roads to gain access to the site of surface-mining activities is designated as part of the surface mine under W.Va.Code, 22A-3-3 [1991]. As such, it is therefore necessary for a surface mine permit applicant to identify the road intended to be used to gain access to the site, and to submit accurate maps showing "the area of land within the permit area upon which the applicant has the legal right to enter and conduct surface-mining operations[.]" W.Va.Code, 22A-3-9(a)(12) [1991].

An applicant is also required under W.Va.Code, 22A-3-9(a)(6) [1991] ³ to submit a copy of the applicant's newspaper advertisement which shall advise the public of: (1) the proposed mining operation and its location; (2) the location of the division of energy office where the application is available for public inspections; and (3) the time period during which the commissioner will accept written protests from the public. The public is, therefore, given notice of The proposed location for the road in the present case is within 300 feet of occupied dwellings and a school and within 100 feet of a public road. The restrictions on surface mining activities which are relevant to the facts of this case are found in W.Va.Code, 22A-3-22(d)(3) and (4) [1991], ⁴ which provide, in pertinent part:

[188 W.Va. 497] the location of the mine and its access road so that written comments or protests may be submitted.

(d) After the third day of August, one thousand nine hundred seventy-seven; and subject to valid existing rights, ⁵ no surface mining operations, except those which existed on that date, shall be permitted:

.... (3) Within one hundred feet of the outside right-of-way line on any public road, except where mine access roads or haulage roads join such right-of-way line ...;

(4) Within three hundred feet from any occupied dwelling, unless waived by the owner thereof, or within three hundred feet of any public building, school, church, community or institutional building, public park, or within one hundred feet of a cemetery[.]

Thus, in order for the private road in this case to qualify as a haul road for the proposed surface-mining operations, it must fall within the valid existing rights exception to W.Va.Code, 22A-3-22(d) [1991].

VALID EXISTING RIGHTS

Although there is no definition of "valid existing rights" under WVSCMRA, the state regulations and the federal regulations define the term. The state regulation, 38 W.Va.C.S.R. § 2-2.129 (1992), provides, in relevant part: "For [haul roads], valid existing rights means a road or recorded right-of-way or easement for a road which was in existence prior to August 3, 1977."

Under the federal regulation, 30 C.F.R. § 761.5 (1991), however, "valid existing rights" for haul roads means: "(1) A recorded right of way, recorded easement or a permit for a coal haul road recorded as of August 3, 1977, or (2) Any other road in existence as of August 3, 1977 [.]" (emphasis added).

There are no federal or state court decisions which specifically address the application of the valid existing rights exception to haul roads. However, since the enactment of the federal and state regulations, regulatory authorities have been uncertain as to how the valid existing rights exception should be applied to coal haul roads. For example, in the record before us, the concern over the application of the valid existing rights exception to coal haul roads is reflected in a letter dated October 3, 1978, from the director of the Office of Surface Mining of the United States Department of the Interior (hereinafter "OSM") to the director of the West Virginia Department of Natural Resources (hereinafter "DNR"). In that letter, the OSM director attempts to clarify the application of the valid existing rights exception to haul roads. The OSM director explained that "the DNR should be guided by whether, as of August 3, 1977, there was an existing haul road, whether there was a recorded right-of-way or easement specifically providing for coal haulage access, or whether there was an outstanding permit issued by the DNR or the West Virginia Department of Mines."

After OSM issued its opinion in the letter to DNR, another attempt to clarify what constitutes valid existing rights for haul roads was provided in the Federal Register:

What would constitute VER for haul roads? Some commenters were concerned that haul roads utilized for resources other than...