Va. Uranium, Inc. v. McAuliffe, Case No.: 4:15-cv-00031

147 F.Supp.3d 462

Virginia Uranium, Inc., et al., Plaintiffs,

v.Terry McAuliffe, et al., Defendants.

Case No.: 4:15-cv-00031

United States District Court, W.D. Virginia, Danville Division.

Signed December 2, 2015

Charles J. Cooper, John D. Ohlendorf, Michael W. Kirk, Michael Weitzner, Cooper & Kirk, PLLC, Washington, DC, for Plaintiffs.

Jonathan Duncan Pitchford, Rhodes Beahm Ritenour, Office of the Attorney General of Virginia, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Jackson L. Kiser, SENIOR UNITED STATES DISTRICT JUDGE

On 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.

I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND¹

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 world.

(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 tailings² 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.” (Id. )

Once 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.” (Id. )

The 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.)

Although 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, 59, 98–99).³

On 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 for dismissal.

II. 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 Atl. 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).

When a state official moves, under Rule 12(b)(1),⁴ 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) consideration.” Id.

III. DISCUSSION

A. The Governor, the two Cabinet Secretaries, and the DEQ officials are immune from suit.

The Governor, the Secretary of Commerce and Trade, the Secretary of Natural Resources, and the DEQ officials invoke Eleventh-Amendment immunity.

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 parties.

Wright v. North Carolina , 787 F.3d 256, 261 (4th Cir.2015) (alteration in original) (quoting U.S. Const. amend XI ).

[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).

A state 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 , ––– U.S. ––––, 135 S.Ct. 398, ––– L.E.2d –––– (2014) ; see Wright , 787 F.3d at 262 ; Hutto v. S.C. Ret. Sys. , 773 F.3d 536, 550 (4th Cir.2014).

Neither 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.⁵ The Governor and the two Cabinet Secretaries are immune from suit.

The DEQ 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...