In a significant victory for Dinsmore’s attorneys and their clients, the Supreme Court of Appeals of West Virginia upheld the continuing viability of subjacent support waivers in coal severance deeds in West Virginia. A copy of the decision, released Nov. 16, 2017, is available here.

These were consolidated appeals that required the Court to interpret various provisions of the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). Texas Eastern Transmission, LP challenged a permit revision granted to the Marshall County Coal Company and sought a ruling that a mine operator must, in its permit application, specify measures it would take to protect gas pipelines in advance of mining. On the challenges to the permit application itself, the Court agreed with the mine operator and WVDEP and held the permit language was sufficient as written.

The Marshall County Coal Company challenged the lower court’s finding that a mine operator must repair or compensate for subsidence-related damage to gas pipelines, where those pipelines were installed after the coal owner had already purchased a contractual waiver of subjacent support from the surface owner. The Court noted WVSCMRA was silent on this question, and that West Virginia courts had long upheld the validity of such common law property rights. Finding no contrary intent in WVSCMRA, and no barrier in the federal SMCRA, the Court held “that W. Va. CSR § 38-2-16.2.c.2 does not abrogate West Virginia common law with respect to subjacent support waivers contained within coal severance deeds.” The Court therefore reversed the lower court’s finding that a mine operator must repair or compensate for material damage to pipelines resulting from subsidence, regardless of the mine operator’s superior, contractual common law property rights. In so doing, the Court resolved what has been a significant point of contention between mine operators and gas pipeline operators for many years.