MORGANTOWN – Many West Virginians live above active or abandoned coal mines. If you’ve bought property you’ve probably checked with the U.S. Geological Society – based in Morgantown – to see if it sits above a mine, And maybe you’ve bought subsidence insurance in case your house splits apart or your backyard pond disappears.
Now, the West Virginia Surface Owners’ Rights Organization has joined the cause of an Ohio County couple suing a mining company for damages caused by long wall mining subsidence.
Jason and Crystal Wilhem, the landowners, are suing Tunnel Ridge LLC, a subsidiary of Alliance Resource Partners. Both the Ohio County Circuit Court and the state Intermediate Court of Appeals ruled against the Wilhelms, saying that statute of limitations had passed on their claim and they’d waited too long to file suit for compensation.
The West Virginia Supreme Court took up the case this month and WVSOR filed an amicus – friend of the court – brief supporting the Wilhelms.
WVSORO’s brief explains that Tunnel Ridge began its underground long wall mining operation in 2017. Starting in 2018, and continuing, the property has suffered subsidence damage. They notified Tunnel Ridgel which inspected the property and on March 20, 2019, told the Wilhelms it would pay for any damage until they signed a release of all claims related to subsidence.
“This release would have included claims for future subsidence damage, which can occur at random for decades or centuries,” WVSORO said.
The parties continued negotiating but failed to reach a settlement. The Wilhelms then filed a case in federal court against Tunnel Ridge on April 17, 2020. It was dismissed for lack of jurisdiction and they re-filed in circuit court on Sept. 24, 2021, losing there and in the intermediate court.
WVSORO argues that the lower courts misapplied the statue of limitations statutes, saying the statute of limitations has not yet begun to run. Since a coal mine operator is obligated to “correct material damage” to surface lands and structures, an operator which fails to do so is in violation of that regulation, and any statute of limitations under the West Virginia Surface Coal Mining and Reclamation Act does not begin to run for as long as the operator is in violation.
Additionally, WVSORO says, the federal agency that administers the federal Surface Mining Control and Reclamation Act has twice concluded that imposing a statute of limitations on citizen suits for subsidence damage would violate SMCRA and so must be disallowed.
WVSORO says in a release announcing the amicus brief that the lower courts wrongly assumed that surface owners know exactly when undermining occurs and ignored that subsidence can occur or worsen for years or decades after mining has ceased. The lower courts relied on code provisions not specific to mining or subsidence.
WVSORO adds in its brief, “Subsidence damage can be devastating to a surface owner, in the form of destabilizing foundations, ruining or disrupting water tables, breaking water pipelines or septic systems, causing natural gas to gather, breaking gas transmission or distribution pipelines, and diminishing property values, just to name a few. And subsidence damage ‘isn’t usually covered by homeowners’ insurance,’ meaning that surface owners often have no other remedy for these injuries.”
It continues, “Under these circumstances, commencing the statute of limitations on the date of mining or when subsidence is first noticed – as the intermediate court did – makes it a certainty that subsidence damage will go unrepaired in West Virginia, and possibly injure a party who never benefited from the mining in the first place.”
WVSORO highlights in its release that historically, coal mining involved leaving behind pillars to provide support for the surface. But newer, long wall mining removes coal in broad panels and intentionally allows the mine roof and overlying strata to collapse, often causing the ground above to sink. And very often the surface owners do not own the coal and so they get no royalty benefits from the coal being mined and sold.
David McMahon, a co-founder of WVSORO, said, “”WVSORO thinks that if a federal law or a specific state law gives a right to sue for compensation, and if that law does not have a statute of limitations, then courts shouldn’t graft one on, and we think the federal agency that administers SMCRA agrees with us.”
WVSORO said that Tunnel Ridge has until Sept. 18 to file a response. And the Wilhelms’ reply brief is due by Oct. 8.
