MORGANTOWN – The West Virginia Coal Association has taken the side of a mining company being sued by an Ohio County couple for damages caused by long wall mining subsidence.
Notable in the association’s amicus – friend of the court – brief is one of the brief’s co-authors: House of Delegates Speaker Roger Hanshaw, writing in his role as an attorney for the Bowles Rice law firm.
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 the West Virginia Surface Owners’ Rights Organization filed an amicus brief supporting the couple in August. The coal association filed its brief last week.
Both sides agree on the basic facts. Tunnel Ridge began its underground long wall mining operation in 2017. In May 2018, the couple discovered subsidence damage and sought compensation under the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA).
They notified Tunnel Ridgel which inspected the property and on March 20, 2019, told the Wilhelms it would not pay for any damage until they signed a release of all claims related to subsidence.
When negotiations failed to reach a settlement, the Wilhelms 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 – with the courts saying the two-year statute of limitations timeline began in May 2018 and had expired.
WVSORO has argued that the lower courts misapplied the statute 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 WVSCMRA does not begin to run for as long as the operator is in violation.
Additionally, WVSORO says, the federal agency that administers the federal SMCRA has twice concluded that imposing a statute of limitations on citizen suits for subsidence damage would violate SMCRA and so must be disallowed.
WVSORO said 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 couple and WVSORO, the association says, argue that the damages are ongoing, so the statute of limitations doesn’t apply. But the coal association argues in its brief that the couple and WVSORO misapply WVSMCRA. The statute of limitations kicks in when the damages first occur.
The coal association also dwells at length on the intent of WVSMCRA: to “strike a careful balance between the protection of the environment and the economical mining of coal needed to meet energy requirements … [and] assure that the coal production essential to the nation’s energy requirements and to the State’s economic and social well-being is provided.”
The brief devotes seven bullet points to how the coal industry contributes to the state and U.S. economy via coal production, jobs, wages and tax revenue.
“Many companies,” the association argues, “would be greatly deterred from doing business in West Virginia if there were never an end to potential litigation for claims under the WVSCMRA. Allowing stale claims or claims for remedies yet not ordered to last for ‘years, decades, or even centuries after mining concludes’ would cast a dark cloud over the very industry on which so many coal miners and businesses in West Virginia and across the country depend, and force many to rethink conducting underground mining operations in West Virginia.”
Tunnel Ridge also filed its own brief last week, laying out its arguments for the expiration of the statute of limitations and calling on the Supreme Court to uphold the Intermediate Court’s ruling.
