United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
This matter is before the court on DEFENDANT CONRAD SPANGLER'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (Docket No. 2). For the reasons set forth below, the motion will be denied.
I. Factual Background
On May 5, 1887 George W. Sutherland executed a deed severing the mineral estate under his surface estate and conveying "all the coal, iron, petroleum oil and [gas] and other ores and minerals lying and being in upon and under all that certain tract of land" to the Virginia Coal and Coke Company. Docket No. 5-1, 5-2. On May 10, 1983, Malva Bailey ("Bailey") executed a deed whereby she purchased the surface estate once owned by the Sutherlands. Docket No. 3-1. Neither deed discussed the ownership of the mine voids which are spaces on passageways that resulted from the mining of the sub-surface of coal by the owner of the mineral estate.
The Complaint alleges that, at some point after April 9, 2012, Conrad Spangler ("Spangler"), who is the Director of the Commonwealth of Virginia's Department of Mines, Minerals and Energy, "issued [mining permits] to Dickenson-Russell Coal Company, LLC, ["Dickenson-Russell"] under permit numbers 14632AB and 13720 AB." Complaint, Docket No. 1-3 at ¶ 1. Bailey alleges that those mining permits were issued pursuant to Va. Code Ann. §§ 42.1-181, 55-154.2.
II. Procedural History
Bailey filed a Complaint in the Circuit Court of the City of Richmond. Docket No. 1-3. The Complaint alleged an unconstitutional takings claim pursuant to 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments of the United States Constitution and requested a declaration that CHAPTER 695, VIRGINIAL ACTS OF ASSEMBLY - 2012 SESSION, An Act to amend and reenact §§ 45.10181 and 55-154.2 of the Code of Virginia is unconstitutional on its face and as applied. Id. at ¶ 1, 3. That is so, says Bailey, because by issuing mining permits to Dickenson-Russell Coal Company, LLC "to conduct mine operations" in the mine voids beneath her surface estate, Spangler had effected an unconstitutional taking of her property. Id.
Spangler removed the case to this Court. Docket No. 1. Spangler filed DEFENDANT CONRAD SPANGLER'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT. Docket No. 2. After the parties fully briefed the motion, it became obvious that the correct interpretation of § 55-154.2 was central to the resolution of both motions. Therefore, this Court certified two questions to the Supreme Court of Virginia which accepted the certification and issued its opinion on May 5, 2015. Docket No. 10. Thereafter, the parties were directed to, and did submit, positions on the status of the motion in light of the decision of the Supreme Court of Virginia. Docket Nos. 11, 12, 13.
III. Mine Void Ownership in Virginia
This case turns, in part, on the law of mine void ownership in Virginia. In Clayborn v. Camilla Red Ash Coal Co., the Supreme Court of Virginia held that a surface estate owner retains ownership of a mine void if the severance deed does not expressly convey the mine void to the mineral estate owner. 128 Va. 383, 390, 105 S.E. 117, 119 (Va. 1920) ("We think the true and rational view is that the reverter takes place because the grantee has never at any time had a corporeal estate in the containing walls, and that the conveyance carries the estate in the coal only, with the necessary incidental easement to use the containing walls for support and for the purpose of getting it out.")
In 1981, the Virginia General Assembly passed Va. Code. § 55-154.2. This statute superseded the Virginia Supreme Court's holding in Clayborn and stated that, if the severance deed remained silent on the ownership of the mine voids, "the owner of the minerals shall be presumed to be the owner of the shell, container chamber, passage and space opened underground for the removal of the minerals, with full right to haul and transport minerals from other lands and to pass men, materials, equipment, water and air through such space." Va. Code. § 55-154.2. The statute further provided that "the provisions of [the] section [would] not affect contractual obligations and agreements entered into prior to July one, nineteen hundred eighty one." Id. This provision was amended and re-enacted in 2012. See 2012 Acts ch. 695; Va. Code. § 55-154.2. The amendment does not affect this case.
According to the Complaint, Spangler has been interpreting and applying Va. Code. § 55-154.2 to apply retroactively to Bailey's deed, among others, and thus has issued two permits to Dickenson-Russell Coal Company, LLC, permitting it to enter and use the mine voids below Bailey's surface estate. According to Bailey, § 55-154.2 does not have retroactive effect and thus the permits are an unlawful taking of the property. To resolve this question of statutory interpretation, this Court certified the following questions to the Supreme Court of Virginia:
(1) Did the enactment of Virginia Code section [55-154.2] in 1981, see Acts of Assembly 1981, c. 291, change the ownership of the shell, container chamber, passage, and space opened underground for the removal of the minerals to the owner of the minerals for coal severance deeds executed before July 1, 1981 that did not otherwise provide for ownership of the shell, container chamber, passage, and space opened underground for the removal of the minerals? In other ...