Anderson & Anderson Contractors, Inc. v. Latimer

Civil No. 11,567 (W. Va. Cir. Ct. August 2, 1972)

An injunction is granted restraining enforcement of 1971 amendments to surface mining regulations of the Department of Natural Resources. The 1971 amendments are invalid because they were not promulgated under the proper authority. Since there is a likelihood of substantial damage from continued mining, the injunction is contingent upon posting of a $250,000 bond by plaintiffs, holders of surface mining permits.

Counsel for Plaintiffs
Arden Curry
1115 Virginia Street, East
Charleston, W. Va. 25301

Donald C. Holt
Suite 4 Law Building
Keyser, W. Va. 26726

Walter Burton
Law Building
Princeton, W. Va. 24740

Charles V. Wehner
103 W. Court Street
Kingwood, W. Va. 26537

Counsel for defendants
Nicholas W. Johnson Assistant U.S. Attorney
Capitol Building
Charleston, W. Va. 25301

[3 ELR 20067]

Taylor, J.:

Gentlemen, I have reached some conclusions — I hope properly.

As I see this case, the Supreme Court of Appeals has required the defendants Latimer and Greene and others, particularly Latimer, to promulgate and enforce proper and needful rules and regulations with reference to the matter of strip mining. Hence, a question before me is whether or not this 1971 statute and the regulations issued thereunder, particularly with reference to Regulation 3.01, are a proper and lawful exercise of police power of the State of West Virginia. There is in this case evidence, undenied and uncontradicted, that inspectors in Mr. Greene's department shut down operations and obtained warrants before justices of the peace, from which there is little relief provided under this statute. There are provisions in the statute of course for administrative appeals, which grant administrative due process probably, but there is not evidence that that has any effect on the obtaining of warrants before the justices of the peace scattered around the State, who of course are primarily interested in their fees and costs, I assume. That question of the police power, the exercise thereof, has been left open, it seems to me, in all the litigation that was invoked in the settlement of these questions. The Supreme Court has not decided it and I have not decided it, and won't decide it until there is a full development of all the facts, and it occurs to me that it must be decided somewhere along the line and must be settled by either the Supreme Court of Appeals or by this Court.

Now with reference to the matter of irreparable injury: There has been a great deal of talk about that and there is a lot of authority on that subject, but in 42 Am. Jur. 2d, under the title "Injunctions", Section 187, page 957, and following, it says, among other things:

"It is recognized, however, that an injunction will lie to restrain the threatened enforcement of an invalid law where the lawful use and enjoyment of private property will be injuriously affected by its enforcement, or where the right of a person to conduct a lawful business or calling will be injuriously affected thereby, unless, of course, the remedy at law is manifestly as complete and adequate as an injunction."

I think, therefore, that these plaintiffs have on this record to date, during the last two days of hearings, shown enough to indicate that the enforcement of this statute, and particularly of Regulation 3.01, constitutes, as regards three or four persons from whom I have heard testimony, irreparable injury to their operations.

I am frank to say to you that until this morning when I started hearing about the opinion of the Attorney General, dated June 25, 1971, I was not inclined to grant this injunction. As I told you this morning, I had never heard of that opinion before. Perhaps I should keep up with what the Attorney General does, but it is a little bit difficult.

So that there be no question about what I am talking about, I want to quote from the last pages of that opinion:

"It should be noted that the language used to define the scope of this Section is 'commenced prior to the effective date of this article shall * * *.' In the [3 ELR 20068] construction of this sentence, the word 'this' is used to refer back to the Article as enacted in 1967. There is no reference made to future enactments promulgated in amendment to the original Article as enacted in 1967. It logically follows that Section 19 can have no operative effect of statutes promulgated subsequent to the enactment of the 1967 Article.

"We therefore conclude that if the Director is to require conversion of existing surface-mining permits to the 1971 amendments, he must first see that appropriate regulations are promulgated, under the authority of the sections of this Article which so provide, and act pursuant to the authority delegated to him by said regulations. Section 24 of the 1967 Act (promulgation of rules and regulations under Chapter 29A of the Code) was not changed by the 1971 Act. That Section provides:

"'The commission shall promulgate rules and regulations, in accordance with the provisions of chapter twenty-nine-A of said Code, for the effective administration of this Article.'

"There are no 'rules and regulations' dealing with conversions promulgated by the Department of Natural Resources. The conversion features are contained in Section 19 of the Act which do not apply to the 1971 amendments. Rules and regulations must be promulgated by the Department of Natural Resources under the provisions of Chapter 29A of the Code before the provisions of Section 31 of the Code apply; that is: 'Irrespective of the date of issuance of a permit, all operators shall immediately conform to any statutes enacted or rules and regulations adopted on the effective date of such statute or rule and regulation. The provisions of this Section shall not be construed to require the regrading or replanting of any area on which such work was satisfactorily performed prior to the effective date of the statute or rule and regulation.' Since there were not rules or regulations promulgated for conversion, such rules and regulations must be adopted pursuant to Chapter 29A of the Code before they can apply."

I am frank to say to you gentlemen that prior to reading that I did not construe this statute in that way at all. I had read the briefs; I had looked at the Code. I had read the statute and I was not of that opinion at all, and I am not certain I am of that opinion yet. However, it seems to me that perhaps the Attorney General led everybody down the primrose path, if I may put it rather crudely. Certainly Mr. Latimer and Mr. Greene relied on it and it is pretty obvious that the operators relied on it. If that be, and it was what the Attorney General or one of his assistants or deputy advised Mr. Latimer and Mr. Greene, then the effective date was July 1, 1972. I set this case for hearing on June 29, 1972. Because of some personal difficulties I did not get to the case until yesterday. As I say, I do not necessarily agree with the opinion reached by the Attorney General, but I think there is sufficient room for doubt about it.

Therefore, I am of the opinion to enjoin the defendants, as in the language of the complaint, from enforcing the conversion aspects of the statute and from enforcing Regulation 3.01 until the further order of this Court.

Now, making a rough calculation from the testimony, from my notes and checking with the court reporter, it appears that under the permits concerning which I have heard evidence there remains 384 acres yet to be mined, if all of them are mined, and roughly 600 acres more or less to be regraded and replanted and approved, because final approval must be required. I am convinced that if the conclusion reached here or the conclusion reached by the Attorney General is erroneous that there is likely to be, as Mr. Greene referred to it, some downstream damage. There may be damage to other persons. I did not let the interveners in. I think I have an obligation, however, to protect the rights of such persons.

If I require the amount of bond that the statute requires, of course, it would be out of the question. At the same time, I think I indicated to Mr. Burton and Mr. Curry when they first called on me in regard to this matter that in the event I should grant an injunction the bond in my judgment would be substantial.

I am of the opinion to require that before this injunction becomes effective the plaintiffs, jointly and severally, give a bond to protect against costs and damages in the amount of $250,000. I do not have any way of guessing at this point what the damages may be. I am quite convinced, although I have not been able to convince one man of this, that I can not require the State of West Virginia to pay for damages, and so I think this bonding requirement is the only thing I can do.

You will give such a bond before the Clerk of this Court after an order has been entered granting the injunction. I will endorse the order. If you give the bond the injunction will be effective; if you do not give the bond, then, of course, the injunction will not be effective.

MR. BURTON: May we get the injunction order entered subject to the giving of the bond?

THE COURT: You may bring the order and I will sign the order. The order shall provide for the injunction but the order will not be effective until the bond is given before the Clerk, with surety to be approved by the Clerk.

MR. BURTON: We would like to make as a part of the order your remarks, by reference.

THE COURT: You may arrange with the court reporter to have transcribed what I have just said. That may be filed with the order to show my reasons for granting the injunction — in effect, the findings of fact and conclusions of law on this question, bearing in mind that I am only concerned here with the injunction feature and the conversion features of this statute.