Bailey v. Spangler

Filing 14

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 06/04/2015. (tjoh, )

n

IN THE UNITED

i

e

5- JUN - 4 2015

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

CLERK, U.S. DISTRICT COURT
RICHMOND. VA

Richmond Division

MALVA BAILEY,

Plaintiff,
v.

Civil Action No.

CONRAD SPANGLER,

3:14cv556

DIRECTOR

OF THE VIRGINIA DEPARTMENT

OF MINES,

MINERALS AND ENERGY,

Defendant.

MEMORANDUM OPINION

This

matter

2).

before

MOTION

SPANGLER'S

is

TO

the

DISMISS

court

on

PLAINTIFF'S

DEFENDANT

COMPLAINT

CONRAD

(Docket

No.

For the reasons set forth below, the motion will be denied.

BACKGROUND

I.

Factual Background

On

May

severing

5,

George

mineral

the

1887

estate

conveying "all the coal,

iron,

ores

and

and minerals

certain tract

of

Docket No.

5-1,

executed

deed

owned

by

a

the

lying

land"
5-2.

to

W.

under

being

in

surface

upon

the Virginia

she

Sutherlands.

his

executed

1983,

purchased
Docket

and

Coal
Malva
the

No.

a

estate

petroleum oil and [gas]

On May 10,

whereby

Sutherland

under

deed

and

and other
all

that

and Coke Company.
Bailey

surface
3-1.

("Bailey")

estate
Neither

once
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
2012,

Complaint

alleges

Conrad Spangler

Commonwealth

of

that,

"issued

Company,

LLC,

[mining

Department

permits]

["Dickenson-Russell"]

and 13720 AB."

some

("Spangler") , who

Virginia's

Energy,

at

Complaint,

point

is

of

to

the

after April
Director

the

Minerals

Mines,

of

and

Dickenson-Russell

II.

Coal

under permit numbers 14 632AB

Docket No.

1-3 at SI1.

Bailey alleges

that those mining permits were issued pursuant to Va.
§§ 42.1-181,

9,

Code Ann.

55-154.2.

Procedural History

Bailey filed a Complaint in the Circuit Court of the City
of

Richmond.

Docket

No.

unconstitutional takings
the

Fifth

Constitution

and

reenact

§§

OF ASSEMBLY

unconstitutional

That

is

so,

says

Amendments

requested

45.10181
on

and
its

Bailey,

The

Complaint

claim pursuant to

Fourteenth

and

VIRGINIAL ACTS

1-3.

a
-

of

declaration

2012

55-154.2

SESSION,

42

and

as

applied.

because

by

Dickenson-Russell Coal Company,

Code

and

States

CHAPTER

An Act

an

§1983

United

that

the

face

U.S.C.

the

of

alleged

695,

to amend and

of
Id.

issuing mining

Virginia
at

is

SI1,

3.

permits

to

LLC "to conduct mine operations"

in

the

mine

voids

beneath

her

surface

estate,

Spangler

effected an unconstitutional taking of her property.
Spangler

Spangler

removed

filed

the

DEFENDANT

PLAINTIFF'S COMPLAINT.
briefed

the

motion,

§

to

CONRAD

this

it

of

both motions.

Therefore,

2.

became

55-154.2

Court.

SPANGLER'S

Docket No.

interpretation

Court

case

was

Id.

Docket

MOTION

No.

TO

central

that

to

the

the

1.

DISMISS

After the parties

obvious

had

fully

correct

resolution

of

this Court certified two questions to

the

Supreme

of Virginia

and

issued

its

opinion

on

Thereafter,

the

parties

which

were

May

accepted the

5,

2015.

directed

to,

certification

Docket

and

did

positions on the status of the motion in light of
of the Supreme Court of Virginia.

Docket Nos.

No.

10.

submit,

the decision

11, 12, 13.

Ill. Mine Void Ownership in Virginia

This case turns,

in

Virginia.

Supreme

in part,

on the law of mine void ownership

In

Court

Clayborn

v.

Camilla

of

Virginia

held

that

Red
a

Ash

surface

Coal

Co.,

estate

the
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)1 ("We think the true
and rational

grantee

has

view

never

is

at

that

any

the

time

reverter takes

had

a

place

corporeal

because

estate

in

the

the

1 The Supreme Court of Virginia was then known as the Supreme
Court of Appeals of Virginia.

containing walls,
the coal only,

and that the conveyance carries the estate in

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

Clayborn

in

and

stated

that,

remained silent on the ownership of
of the minerals

if

the mine voids,

with full

right to haul

minerals from other lands and to pass men,
through

such

space."

statute further provided that
[would]

entered
Id.

not

affect

into prior

This

2012 Acts

affect this

695;

July

was

Va.

one,

amended

Code.

materials,

Va.

Code.

nineteen

[the]

and

hundred

and re-enacted
The

equipment,

§55-154.2.

obligations

§55-154.2.

in

The

section

agreements

eighty

one."

2012.

See

amendment

does

not

case.

According to the Complaint,
and

"the owner

and transport

"the provisions of

contractual

to

provision
ch.

deed

passage and space opened underground for the

removal of the minerals,

and air

severance

shall be presumed to be the owner of the shell,

container chamber,

water

the

applying

Bailey's deed,

Va.

Code.

Spangler has been interpreting

§55-154.2

among others,

to

apply

retroactively

to

and thus has issued two permits to

Dickenson-Russell Coal Company,

LLC,

permitting it

use the mine voids below Bailey's surface estate.

to enter and

According to

Bailey,

§ 55-154.2 does not have retroactive effect and thus the

permits are an unlawful taking of the property.
question

of

statutory

interpretation,

this

To resolve 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

for

minerals

coal

to

the

severance

owner

deeds

of

the

minerals

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 words, does the presumption of mine
void ownership created by the statute apply
to deeds executed before July 1, 1981?
(2)
If
the
answer
is
yes,
and
the
presumption applies to coal severance deeds
executed before July 1, 1981, and assuming
that a predecessor in interest executed a
valid

under

coal

severance

Virginia

interest

law

in

the

deed

what,
mine

in

if

1887,

any,

then

ownership

voids

would

a

subsequent grantee surface owner take if she
were

deeded

the

land

in

1983?

Would

that

grantee have any rights to the mine void
under Clayborn v. Camilla Red Ash Coal Co.,
128 Va.

In

response,

the

383

(1920)?

Supreme

question in the negative,

Court

of

Virginia

answered

the

first

finding that "the presumption of mine

void ownership created by Code §55-154.2 does not apply to deeds
executed before July 1,

1981."

Docket No.

10 at 9.

first question was answered in the negative,
was moot.

Id.

at

10.

Because the

the second question

Thus,

although Va.

Code § 55-154.2 prospectively alters the

presumption of mine void ownership established by Clayborn,
does

not

that

predate

The

apply retroactively to
July

severance

executed

in

ownership.

Supreme

1,

deed
1887

1981,

to

the

which

and

is

under

Bailey

the

of

Virginia,

conveying mineral

effective

silent

Thus,

Court

deeds

date

traces

on

the

her

presumption established in Clayborn,

deed

the

rights

statute.

ownership

issue

interpretation

Bailey's

of

of

it

mine

was
void

provided

by

the

governed

by

the

is

and Bailey is the owner of

the mine voids.

DISCUSSION

Spangler
Fed.

has

R.

P.

federal

Civ.

court

moved

for

12(b)(1)

finds

dismissal

and

that

is

jurisdiction over

a case

or

motion.

v.

H

Thus,

Arbaugh

the

question

jurisdiction,

Y

of

&

Fed.

R.

does

of

this

Civ.

whether

546

the

as raised in Spangler's

under

both

P.

12(b)(6).

If

have

not

controversy,
Corp.,

case

subject

matter

it must

U.S.

Court

500,

has

dismiss
514

the

(2006).

subject

12(b)(1) motion,

a

matter

must be

addressed first.

I.

Fed. R. Civ. P. 12(b)(1) - Subject Matter Jurisdiction

Spangler

argues

pursue her claim,
matter

that

Bailey

does

not

have

standing

to

and thus that this Court does not have subject

jurisdiction

in

this

case.

The

United

States

Constitution's

"case-or-controversy"

jurisdiction of the

§2.

To

fall

jurisdiction,

federal

within
a

court

the

requirement

system.

U.S.

constitutionally

plaintiff

suing

in

limits

Const.

imposed

federal

the

Art

III

limits

court

must

on

have

standing to pursue his or her claim.
Over the

years,

the

law of standing has

been developed

such a way that it now consists of three elements.

plaintiff must have suffered an
of

a

legally

protected

particularized

and

(b)

hypothetical.

Second,

^injury in

interest

actual

or

which

fact'

is

imminent,

"First,

- an

(a)

the

invasion

concrete

not

in

and

conjectural

or

there must be a causal connection between

the injury and the conduct complained of - the injury has to be
fairly traceable to the challenged action of

the defendants and

not the result of the independent action of some third party not
before

the

merely

^speculative',

favorable

court.

Third,

decision."

555, 560-61 (1992)

First,

it

must

that

the

Lujan

v.

be

injury

xlikely',

will

Defenders

be

as

opposed

redressed

of Wildlife,

3

at

3.

Spangler argues

That

504

a

U.S.

(internal quotations omitted).

that Bailey does

not

have

because she has no ownership interest in the mine voids.
No.

by

to

argument,

of

course,

has

been

standing
Docket

foreclosed by

the decision of the Supreme Court of Virginia that § 55-154.2 is
not

retroactive.

Second,

property
danger"

Bailey

Spangler argues that Bailey "has not shown that her

rights
and

have

thus

actually

that

responds

she

that

been

does

her

harmed

not

have

property

or

are

in

standing.

rights

have

imminent

Id.

at

already

5.

been

harmed because she "no longer has the property right to use her
mine

voids

as

she

wishes

using her mine voids as
other locations."

Bailey's

permits

exclusive

Although

has

use

the

begun

allege

allow

[her]

such

4 at

alleges

mine

Complaint

the

prevent

Dickenson-Russell

from

4.

that

Spangler

Dickenson-Russell,

conducting

that

conducting

of

to

a dumping ground for its operations at

Docket No.

Complaint

that

or

does

voids."

not

operations

in

that

the

issued

"trespass

Docket

allege

company has been
operations.

to

has

No.

and

take

at

1-2.

1-3

Dickenson-Russell

mine

granted

voids,

it

permission

Additionally,

two

Bailey

does

to begin

has

already

lost the right to exclude Dickenson-Russell from her property as

a

result

Russell's
revocation

of

the

trespass
of

her

permits.

onto
right

Thus,

Bailey's
to

the

property

exclude

threat

is

them has

of

Dickenson-

imminent
already

and

the

occurred.

These actual and imminent injuries satisfy the "injury in fact"
requirement.

Moreover,

the Complaint alleges that Bailey's property has

been unlawfully taken by the issuance of the mine permits.

That

is an

injury in and of itself.

So,

for this additional reason,

Bailey satisfies the injury component of the standing issue.
Spangler argues that "Bailey has

Finally,
a

causal

complained

connection

of."

between

Docket

No.

her

3

at

injury

6.

failed to allege
and

the

conduct

Specifically,

Spangler

argues that Bailey has "failed to plead facts demonstrating that
the

mining

harmful

to

permits
her"

in

and

question
has

not

authorize

activities

"indicated

what,

that

if

are

anything,

Director Spangler has authorized Dickenson-Russell to do in the
mine voids under those permits that would constitute a trespass
or otherwise be harmful to her."

the

frivolous

because

Bailey

has

Id.

That argument borders on

directly

tied

the

injury

of

which she complains to the permits Spangler has issued, and she
has

sufficiently

traceable to the

alleged

that

"the

injury

[is]...fairly

challenged action of the defendants".

Bailey

has adequately shown that she has standing and Spangler's Rule
12(b)(1) motion will be denied.

II.

Fed. R. Civ. P. 12(b)(6) - Failure to State a Claim

Next, Spangler alleges that Bailey has failed to meet the

federal pleading

standard

set by Fed.

R.

Civ.

P.

12(b)(6)

in

that she has not plausibly alleged a claim upon which relief can

be granted.

Fed.

R.

Civ.

P.

8(a)(2)

requires that a complaint

contain "a short and plain statement of the claim" illustrating

that the pleader is entitled to relief.
dismiss,

a

complaint

accepted as true,
on

its

face.'"

to

complaint

are

are

contain

sufficient

factual

matter,

*state a claim to relief that is plausible

Ashcroft

(quoting Bell Atl.

Courts

must

"To survive a motion to

Corp.

v.

Iqbal,

v. Twombly,

to

assume

true,

and

that

U.S.

550 U.S.

all

must

556

deny

544,

well-pled

a

Rule

662,

678

570

(2009)

(2007)).

allegations

12(b) (6)

in

motion

a

to

dismiss where the well-pled allegations state a plausible claim
for

relief.

Id.

at

679.

A

claim

is

"plausible"

when

the

plaintiff pleads facts sufficient to allow the court to draw the
reasonable

inference

that

alleged misconduct.

the

Twombly,

defendant

is

liable

550 U.S. at 556.

for

the

A court should

grant a motion to dismiss where the allegations are nothing more
than legal conclusions, or where they permit a court to infer no
more than a possibility of misconduct.

See Iqbal, 556 U.S.

at

678-79.

Spangler
because

Bailey

argues
"has

that

this

action

should

failed to demonstrate

that

be

dismissed

the mine

void

statute has had any economic impact on her property or that it
has

interfered

Docket No.

with

3 at 7.

distinct

investment-backed

expectations."

This argument rests on the supposition that

Bailey must plead facts sufficient to support an allegation of a
regulatory taking
Transportation

Co.

under
v.

the

City

rubric
of

New
10

•

enumerated
York,

438

in
U.S.

Penn

Central

104

(1978).

Spangler argues that the statute at hand should be analyzed as a
regulatory taking rather than a per se taking because "there is

no alleged physical entry onto land or appropriation of money in
an interest bearing account."
Bailey

responds

that

Docket No. 5 at 8.

she

does

not

need

sufficient to satisfy the Penn Central test,

to

allege

facts

but rather that she

must only allege facts sufficient to support an allegation of a

per se taking, because the permits at issue "transfers property
rights from one private party to another private party" and does
not

simply regulate Bailey's property rights.

8.

Further,

economic

injury

exercises

of
in

4 at

she argues that a "per se taking can exist without

recognition that
consists

Docket No.

the
his

because

it. is

^premised

property is more
group

of

dominion

the

longstanding

than economic value;

rights
of

on

the

which

the

physical

it also

so-called

owner

thing...While

the

[property rights] at issue...may have no economically realizable
value

to

its

owner,

possession,

control,

and dispositions

nonetheless valuable rights that inhere in the property.'"

are
Id.

at 8, fn 2 (quoting Phillips v. Washington Legal Foundation, 524
U.S.

156,

170

(1998) ) .

Bailey presents a per se takings claim and not a regulatory
takings

claim.

The

Supreme

Court

has

elaborated

on

difference between the two types of takings claims, stating:

11

the

When
the
government
physically
takes
possession of an interest in property for
some public purpose, it has a categorical
duty
to
regardless

compensate
of whether

the
former
the interest

owner,
that is

taken constitutes an entire parcel or merely
a
part
thereof.
Thus,
compensation
is
mandated

when

a

leasehold

is

taken

and

the

government occupies the property for its own
purposes, even though that use is temporary.
Similarly, when the government appropriates
part of a rooftop in order to provide cable
TV access for apartment tenants; or when its
planes use private airspace to approach a
government airport, it is required to pay
for

that

share

no

matter

how

small.

But

a

government regulation that merely prohibits
landlords from evicting tenants unwilling to
pay a higher rent; that bans certain private
uses of a portion of an owner's property; or
that forbids the private use of certain
airspace, does not constitute a categorical
taking. The first category of cases requires
courts to apply a clear rule; the second
necessarily
entails
complex
factual
assessments of the purposes and economic
effects of government actions.

Brown v.

(2003)

Legal

Foundation of Washington,

(internal citations omitted).

that Spangler,
§55-154.2,

536 U.S.

Here,

216, 233-34

Bailey is alleging

through the two permits at issue and Va.

has allowed Dickenson-Russell to enter upon and take

physical possession of the mine voids which she owns.
claiming

Code

that the government

"physically take[]

has permitted

a third party to

possession" of her property.

alleging a per se taking.

12

She is

Thus,

she is

Because Bailey is asserting a per se taking claim,
not

have

to

allege

facts

sufficient

to

support

"that

she does
the mine

void statute has had any economic impact on her property or that
it has interfered with distinct investment-backed expectations."

Docket

No.

3

at

7.

failure to state a

Thus,

Spangler's

motion

to

dismiss

for

claim will be denied.

CONCLUSION

For

the

SPANGLER'S

reasons

MOTION

TO

set

DISMISS

forth

above,

PLAINTIFF'S

DEFENDANT

COMPLAINT

CONRAD

(Docket

2) will be denied.
It is

so ORDERED.

/s/

Ml_

Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date:

June

(Jh,

2015

13

No.