United States District Court, W.D. Virginia, Danville Division
Virginia Uranium, Inc., Coles Hill, LLC, Bowen Minerals, LLC,
Virginia Energy Resources, Inc., Plaintiffs: Charles J.
Cooper, John D. Ohlendorf, Michael W. Kirk, LEAD ATTORNEYS,
PRO HAC VICE, Cooper & Kirk, PLLC, Washington, DC; Michael
Weitzner, LEAD ATTORNEY, Cooper & Kirk, PLLC, Washington, DC.
Terry McAuliffe, in his official capacity as Governor of
Virginia, Maurice Jones, in his official capacity as Virginia
Secretary of Commerce and Trade, Bradley C. Lambert, in his
official capacity as Deputy Director of the Virginia
Department of Mines, Minerals and Energy, James P. Skorupa,
in his official capacity as Director of the Virginia
Department of Mines, Minerals and Energy's Division of
Mineral Mining, Molly J. Ward, in her official capacity as
Virginia Secretary of Natural Resources, David K. Paylor, in
his official capacity as Director of the Virginia Department
of Environmental Quality, Robert J. Weld, in his official
capacity as Regional Director of the Department of
Environmental Quality's Blue Ridge Regional Office,
Michael Dowd, in his official capacity as Director of the
Virginia Department of Environmental Quality's Air
Division, Melanie D. Davenport, in her official capacity as
Director of the Virginia Department of Environmental
Quality's Water Permitting Division, Justin Williams, in
his official capacity as Director of the Virginia Department
of Environmental Quality's Division of Land Protection
and Revitalization, Defendants: Jonathan Duncan Pitchford,
Rhodes Beahm Ritenour, LEAD ATTORNEYS, Office of the Attorney
General of Virginia, Richmond, VA.
L. Kiser, SENIOR UNITED STATES DISTRICT JUDGE.
November 6, 2015, I heard argument on Plaintiffs' Motion
for Summary Judgment and Defendants' Rule 12(b)(1) and
Rule 12(b)(6) Motions to Dismiss. The parties have fully
briefed the motions, and I have reviewed the relevant filings
and arguments of counsel. For the reasons stated herein, I
will grant Defendants' motions and, accordingly, deny
Plaintiffs' motion as moot.
STATEMENT OF FACTS AND PROCEDURAL
Located just to the northeast of Chatham, Virginia, the Coles
Hill estate's gently sloped fields have been farmed by
the Coles family since shortly after the Revolutionary War.
Beneath those fields lies a deposit of approximately 119
million pounds of uranium ore--the largest natural deposit of
uranium in the United States and one of the largest in the
(Compl. ¶ 24, Aug. 5, 2015 [ECF No. 1].) Plaintiffs
Coles Hill, LLC, and Bowen Minerals, LLC, own the land above
the Coles Hill uranium deposit. (Id. ¶ ¶
10, 11, 25.) While " retaining a royalty interest,"
they lease the mineral estate to Plaintiff Virginia, Uranium,
Inc., which is owned by Plaintiff Virginia Energy Resources,
Inc. (Id. ¶ ¶ 9-12, 25.) The lease is to
last until 2045. (Id. ¶ ¶ 9, 25.)
Developing the uranium deposit beneath Coles Hill would
entail . . . mining, milling, and tailings
management." (Id. ¶ 29.) The raw uranium
ore would " likely be extracted through a conventional
underground mine." (Id. ¶ 30.) This mining
would be similar to that for " coal, titanium, and
numerous other minerals . . . mined in Virginia."
extracted from the ground, the uranium ore must be "
milled or processed into useable form."
(Id. ¶ 31.) This processing "
[t]ypically" involves an on-site mill. (Id.)
The mill would " grind the uranium ore into a sand,
which [would] then run through either an acidic or alkaline
solution to separate pure uranium from . . .
'tailings.'" (Id.) The uranium would,
then, be " concentrated and dried into
'yellowcake,' . . . the final product that is
commercially sold and shipped off-site for enrichment."
mill tailings " must be securely stored, to prevent any
radioactive materials from escaping into the air, leaking
into the groundwater, [or] being released to surface
waters." (Id. ¶ 34.) At Coles Hill, mill
tailings would be stored in a management facility " in
safe and reliable below-grade cells, which are capped on top
with synthetic and earthen materials to prevent the release
of radioactive materials into the air, and lined on the
bottom with multiple layers of heavy-duty materials to
prevent any release into the surrounding soil or
groundwater." (Id. ¶ 32.)
Virginia's Department of Mines, Minerals, and Energy has
permitted Virginia Uranium, Inc., " to engage in
'exploration activity'" to learn " the
nature and extent of the Coles Hills deposit" (id.
¶ 75), Va. Code Ann. § 45.1-283 prevents any
Virginia agency from accepting Virginia Uranium's
application for a permit to mine it (id. ¶ ¶ 2, 4,
August 5, 2015, Virginia Uranium, Inc., Coles Hill, LLC,
Bowen Minerals, LLC, and Virginia Energy Resources, Inc.,
(" Plaintiffs" ) filed suit for declaratory and
injunctive relief against Virginia's Governor, Secretary
of Commerce and Trade, Secretary of Natural Resources, and
various officials affiliated with the Department of
Environmental Quality (" DEQ" ) or the Department
of Mines, Minerals, and Energy (" Defendants" ).
Plaintiffs seek a declaration that the Atomic Energy Act of
1954, 42 U.S.C. § 2011 et seq., as amended, ("
AEA" ) preempts Va. Code Ann. § 45.1-283.
(Id. ¶ 111.) They also seek an injunction,
forbidding Defendants from adhering to Va. Code Ann. §
45.1-283 and requiring them, instead, to process permit
applications for uranium mining. (Id.) Defendants
move to dismiss, all contending that the AEA does not preempt
Va. Code Ann. § 45.1-283. Several Defendants have
asserted Eleventh-Amendment immunity as an alternate ground
STANDARDS OF REVIEW
To survive a [Rule 12(b)(6)] motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). " A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. A
" 'court need not accept the [plaintiff's] legal
conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.'" Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (alteration in
original) (quoting Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009)). "
When a complaint raises an arguable question of law which the
district court ultimately finds is correctly resolved against
the plaintiff, dismissal on Rule 12(b)(6) grounds is
appropriate . . . ." Neitzke v. Williams, 490
U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
state official moves, under Rule 12(b)(1), to dismiss
for Eleventh-Amendment immunity and asserts no factual matter
beyond the complaint, a court need only determine whether the
" complaint fails to allege facts" that would
subject the official to suit. See Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982). " In that event, all
the facts alleged in the complaint are assumed to be true and
the plaintiff, in effect, is afforded the same procedural
protection as he would receive under a Rule 12(b)(6)
The Governor, the two Cabinet Secretaries, and the DEQ
officials are immune from suit.
Governor, the Secretary of Commerce and Trade, the Secretary
of Natural Resources, and the DEQ officials invoke
Under the Eleventh Amendment, " [t]he judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State or by Citizens
or Subjects of any Foreign State." The United States
Supreme Court has read the Eleventh Amendment to render
States immune from being hauled into federal court by private
Wright v. North Carolina, 787 F.3d 256, 261 (4th
Cir. 2015) (alteration in original) (quoting U.S. Const.
[T]he essence of the immunity is that the State cannot be
sued in federal court at all, even where the claim has merit,
and the importance of immunity as an attribute of the
States' sovereignty is such that a court should address
that issue promptly once the State asserts its immunity.
Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 482 n.4 (4th Cir. 2005).
official's protection is " less robust" than a
state's. See Wright, 787 F.3d at 261. " [A]
state official ceases to represent the state when it attempts
to use state power in violation of the Constitution. Such
officials thus may be enjoined from such unconstitutional
action . . . but only if they have some connection with the
enforcement of an unconstitutional act." Id.
(citations and internal quotation marks omitted). This
connection, or " special relation," " requires
proximity to and responsibility for the
challenged state action." Id. at 261-62
(citations and internal quotation marks omitted). In
contrast, " 'a generalized duty to enforce state law
or general supervisory power over the persons responsible for
enforcing the challenged provision will not subject an
official to suit.'" Ass'n des Eleveurs de
Canards et d'Oies du Quebec v. Harris, 729 F.3d
937, 943 (9th Cir. 2013) (quoting Coal. to Defend
Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th
Cir. 2012)), cert. denied, 135 S.Ct. 398, 190 L.Ed.2d 249
(2014); See Wright, 787 F.3d at 262; Hutto v.
S.C. Ret. Sys., 773 F.3d 536, 550 (4th Cir. 2014).
the Governor nor the two Cabinet Secretaries are sufficiently
connected to Va. Code Ann. § 45.1-283's
implementation to be subject to suit. Plaintiffs allege that
these officials generally supervise or set policy for
departments involved in Va. Code Ann. § 45.1-283's
implementation. (Compl. ¶ ¶ 13, 14, 18.) These
general roles are insufficiently proximate to or responsible
for the challenged conduct and do not strip these officials
of their Eleventh-Amendment immunity. The Governor and the
two Cabinet Secretaries are immune from suit.
officials are also insufficiently connected to the challenged
conduct. Plaintiffs claim that Va. Code Ann. § 45.1-283
prevents the DEQ officials from issuing four permits
necessary for the proposed mining operation: a Prevention of
Significant Deterioration permit, a Major Source of Hazardous
Air Pollutants permit, a Virginia Pollutant Discharge
Elimination System permit, and a Hazardous Waste Management
Facility permit. (Id. ¶ ¶ 55-58.) Va. Code
Ann. § 45.1-283 prohibits " any agency of the
Commonwealth" from accepting " permit applications
for uranium mining." The four identified permits are not
" for uranium mining" but, respectively, for
constructing a " major emitting facility," 42
U.S.C. § 7475(a), for constructing and operating a
" major source of hazardous air pollutants," 9 Va.
Admin. Code § 5-80-1420(A), for discharging "
sewage, industrial wastes, other wastes, or any noxious or
deleterious substances" into state waters, Va. Code Ann.
§ 62.1-44.5(A)(1), and for " stor[ing], provid[ing]
treatment for, or dispos[ing] of a hazardous waste," id.
§ 10.1-1426(A). Va. Code Ann. § 45.1-283 might
obviate Plaintiffs' application for these permits, but it
does not prohibit the DEQ from accepting applications for
them. The DEQ officials are immune from suit.
The AEA does not preempt Va. Code Ann. §
Under the Supremacy Clause, federal statutes are part of
'the supreme law of the land.' A long-standing
principle of our jurisprudence teaches that, where there is a
clash between state and federal laws, federal law
prevails." Sukumar v. Nautilus, Inc., 829
F.Supp.2d 386, 392 (W.D. Va. 2011) (quoting U.S. Const. art.
VI, cl. 2). " Under this principle, Congress has the
power to preempt state law." Arizona v. United
States, 132 S.Ct. 2492, 2500, 183 L.Ed.2d 351 (2012).
Preemption, however, is not a metaphor for state law being
" effortlessly overrun by each and every federal
mandate." See Sukumar, 829
F.Supp.2d at 392. " [C]ourts should assume that 'the
historic police powers of the States' are not superseded
'unless that was the clear and manifest purpose of
Congress.'" Arizona, 132
S.Ct. at 2501 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447
primary categories of preemption are " express, field,
and conflict." Sukumar, 829
F.Supp.2d at 392. They " are not 'rigidly
distinct,'" Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 372 n.6, 120 S.Ct. 2288, 147
L.Ed.2d 352 (2000) (quoting English v. Gen. Elec.
Co., 496 U.S. 72, 79 n.5, 110 S.Ct. 2270, 110 L.Ed.2d 65
(1990)), and " 'the purpose of Congress is the
ultimate touchstone in every pre-emption case,'"
Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315,
322 (4th Cir. 2012) (quoting Wyeth v. Levine, 555
U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009)).
Plaintiffs invoke both field and conflict preemption.
Va. Code Ann. § 45.1-283 intrudes ...