Energy and Environment MonitorOn June 9, 2009, the Supreme Court of Appeals of West Virginia issued a decision in favor of Goals Coal Company, thereby bringing to an end the efforts of the anti-mining group Coal River Mountain Watch to prevent the construction of a coal silo near Sundial, West Virginia. The hot-button issue in this case was whether or not Goals Coal Company could build a second coal silo within 300 feet of Marsh Creek Elementary School. The actual legal issue involved was a much narrower, and admittedly less sexy, boundary dispute.
The disagreement centered on a map drawn in 1982 as part of an application for a surface mine permit. Mining began at the site prior to enactment of West Virginia’s Surface Mining Control and Reclamation Act (“SMCRA”). Once the surface mine program was implemented, it became necessary to permit existing operations. Thus, the map in question was created by a professional engineer and land surveyor to depict the area that was already disturbed, rather than depicting an area to be disturbed (as became the practice post-SMCRA). As was the custom in the early 80’s, the map delineated the permit boundaries by hand without the benefit of a survey. The 1:24,000 scale the map utilized is the scale Congress prefers for mine applications. To precisely distinguish the actual boundaries of the mine permit on the ground, permanent markers were placed along the perimeter of the mine area. These boundary markers were labeled on the hand-drawn map as the official boundary of the mine permit area.
In 2003, Goals Coal obtained a permit to build a coal storage silo within the boundaries of the mine area, but only several hundred feet from Marsh Creek Elementary. While SMCRA prohibits mine operations within 300 feet of public buildings, the statute contains an exemption which “grandfathers” in existing operations pre-dating its enactment. When Goals Coal submitted a proposal to build another silo in 2005, the Department of Environmental Protection (WV DEP) rejected the permit because they could not determine from the hand-drawn line on the 1982 mine permit map whether the silo would be within the permitted area. Goals Coal then resubmitted its silo proposal, this time relying on the permanent boundary markers to show that the proposed silo would clearly be within the permitted mine area. Based on the marker, DEP determined that the second silo actually fell within the permit boundary (though they ultimately refused to issue the permit for a different reason).
Upset that the new silo would be built within 300 feet of Marsh Creek Elementary, Coal River Mountain Watch (“CRMW”) appealed the WV DEP’s decision to the West Virginia Surface Mine Board, arguing that there was a conflict between the 1982 map and the marker. The Surface Mine Board affirmed the WV DEP’s decision to rely on both the drawn map and the permanent boundary markers in making its decision, based on the finding that overlaying the hand-drawn map with a surveyed map—the method utilized by CRMW to call into question the silo’s placement within the permit area—was an improper use of the maps.
CRMW next appealed to the Circuit Court of Kanawha County where the WV DEP’s decision to rely on both the drawn map and the permanent markers was again affirmed. CRMW made its final appeal to the West Virginia Supreme Court.
Seemingly aware of the emotional nature of the case, Justice Ketchum prefaced the Court’s opinion by making clear that the case involved the narrow legal issue of whether the Surface Coal Mining and Reclamation Act allows both original maps and boundary markers to be used to delineate the boundaries of a mine, and not whether it was the Court’s desired policy to see coal silos built near schools. The Court reiterated that it is not “a superlegislature commissioned to pass upon political, social, economic or scientific merits of statutes . . .” but is instead required to “enforce legislation unless it runs afoul of the State or Federal Constitutions.”
CRMW argued that SMCRA’s definition of a permit area, characterized as an “area of land indicated on the approved map submitted by the operator with his application, which area of land…shall be readily identifiable by appropriate markers on the site” requires that only the lines on the map be used to define the on-the-ground permit area, rather than markers on the ground.
Showing judicial restraint, the Court interpreted the relevant SMCRA statute so that words were assigned their plain meaning and each section of the statute was considered to have importance to the overall meaning of the provision. In arriving at its decision, the Court also credited Congress with having enough common sense that it would not simultaneously require permit maps to be drawn on a miniscule scale (so small that a single pen stroke on a permit map represents 25 feet on the ground) and also mandate that SMCRA permit areas could only be determined by referencing the drawn permit maps and not the permanent boundary markers on the ground. Although the Court did not mention it in their decision, this result is also consistent with the common law of property disputes, which resorts to physical markers and monuments over written descriptions in deeds.
This decision speaks well of the new Court. If it is an accurate representation of things to come, it portends a judicial era for West Virginia in which common sense and judicial restraint trump political agendas in our State’s highest Court.
This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.
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