W. Va. Dep't of Envtl. Prot. v. Dotson

856 S.E.2d 213

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant Below, Petitioner

v.Drema DOTSON, Denver Allen Hunt, Connie Lester, Woodrow Kirk, and Johnny Lockhart, Plaintiffs Below, Respondents

No. 20-0063

Supreme Court of Appeals of West Virginia.

Submitted: February 10, 2021

Filed: March 16, 2021

John P. Fuller, Esq., Brent D. Benjamin, Esq., Daniel T. LeMasters, Esq., Jeffrey M. Carder, Esq., Bailey & Wyant, PLLC, Charleston, West Virginia, Counsel for Petitioner

Kevin W. Thompson, Esq., David R. Barney, Jr., Esq., Thompson Barney, Charleston, West Virginia, Stephen P. New, Esq., Amanda J. Taylor, Esq., The Law Office of Stephen P. New, Beckley, West Virginia, Counsel for the Respondents

WOOTON, Justice:

The Petitioner West Virginia Department of Environmental Protection ("DEP") appeals the December 30, 2019, order entered by the Circuit Court of McDowell County, West Virginia, denying its motion for summary judgment on qualified immunity grounds. On appeal, the DEP contends that the circuit court erred as a matter of law in denying it summary judgment.¹ After careful review of the briefs, the arguments of the parties, the appendix record, and the applicable legal authority, we find that the DEP is entitled to qualified immunity. We therefore reverse the circuit court's order and remand the case for entry of an order granting the DEP summary judgment, thereby dismissing the action against it.

I. Facts and Procedural Background

On June 5, 2014, severe flooding of Bull Creek occurred in McDowell County, West Virginia. The respondents, plaintiffs below,² Drema Dotson, Denver Allen Hunt, Connie Lester, Woodrow Kirk, and Johnny Lockhart (referred to collectively as "the respondents") are residents of the Bull Creek area and suffered damages to personal and real property as a result of the flooding.

On August 19, 2016, the respondents filed suit³ against Twin Star Mining, Inc.⁴ ("Twin Star") and the DEP, claiming that the property damages they suffered due to the flooding along Bull Creek were caused by the negligence of those entities. As against Twin Star, the respondents alleged in their second amended complaint⁵ that Twin Star owns and operates Bull Creek Surface Mine No. 45 which is situated atop the Bull Creek and Trap Fork Watershed. The respondents averred that the surface mining operation, which was operating under Permit Nos. S-4020-95 and S-4011-97 issued by the DEP, was negligently and improperly designed by Twin Star and that Twin Star "failed to limit storm water runoff during the mining and post-mining to pre-mining levels at the Bull Creek Surface Mine No. 45," causing the respondents’ damages.

As against the DEP,⁶ the respondents’ allegations fell into two categories of acts or omissions. First, the respondents alleged that the DEP was negligent when it failed to enforce the provisions of SCMRA by issuing Twin Star the permits to operate Bull Creek Mine No. 45 based upon designs that failed to comport with the SCMRA requirements. Second, they alleged that the DEP was negligent by allowing Twin Star to violate the provisions of SCMRA "without issuing Notices of Violation[.]"⁷ In that regard, they alleged that the DEP "had duties to monitor the mining operations at Bull Creek Surface Mine No. 45 and enforce applicable rules, regulations, statutes, and/or permits which caused the flood complained of herein." The respondents further alleged that the DEP's "acts or omissions ... violated their mining permits" and certain "requirements of SCMRA[,]" causing injury to them. They alleged that the DEP was negligent in its "failure to discharge non-discretionary duties relating to enforcement of mine permit S-4011-97 [and S-4040-95] for the reasons expressed herein but primarily overlooking obvious violation[s] of permit, regulation and law." Finally, in their request for injunctive relief, the respondents alleged, in reliance on West Virginia Code § 22-3-25(a)(2),⁸ that the DEP "failed to perform its non-discretionary duties[,]" including failing to issue Notice of Violations and failing to execute its non-discretionary duty when it released the bond for permit S-4020-95.

In conjunction with the allegations contained in the second amended complaint, the respondents provided reports from two experts, Jack Spadaro, a mine safety and health/environmental consultant, and John Eichenberger, an expert in hydrology and engineering. Both experts indicated in their respective reports that DEP had issued numerous Notices of Violation to Twin Star prior to the flooding event on June 5, 2015. Specifically, in discussing the flooding, Mr. Spadaro stated that in response to citizen complaint investigations the DEP had issued thirty-eight Notices of Violation for Twin Star's "repeated violations related to failure to protect the hydrologic balance and failure to comply with drainage control standards[,]" as well as for the "failure to protect off-site areas from material damage." Despite the issuance of these Notices of Violation, Mr. Spadaro found that the DEP did not do enough:

The W.Va. Department of Environmental Protection also failed in its duty to protect the public. The DEP did not ensure that adequate erosion and drainage control structures were in place prior to June 5, 2014. Although Twin Star Mining, Inc. had failed to comply with state standards regarding protection of the hydrologic balance, DEP did not take decisive action to ensure compliance. The W.Va. Department of Environmental Protection allowed the mine to continue operating and did not require the company [to] correct the defective drainage control systems that created the hazards. These conditions led directly to the flooding of June 5, 2014 and were a significant contributing factor in regard to the severity of the flood damage.

Mr. Eichenberger also discussed the number of Notices of Violation issued by the DEP to Twin Star, but offered no opinions as to any acts or omissions on the part of the DEP. Instead, the expert focused upon Twin Star's conduct, stating that

[t]he Twin Star Mine was required to provide all sufficient and accurate data for the permit area to the WVDEP to allow the regulatory authority to complete a cumulative hydrologic impact assessment (CHIA) of the mine site and adjacent areas. The Twin Star Mine failed to provide adequate and accurate information regarding the surface water hydrology to allow the regulatory authority to complete an accurate CHIA.

He further opined that

[Twin Star's] mining practices in conjunction with the local topography and historic mining operations within the Bull Creek Watershed have increased the risk of flooding and associated damages to locations downgradient of the mine. I observed that the Twin Star Mine failed to adequately maintain the site storm water conveyance system and did not complete contemporaneous reclamation activities and other requirements set forth in site permits (WVDEP Permit S401196 and WVNPDES Permit WV1018582) and Legislative Rule 38-2 et. al.. [sic] In addition the WVDEP cited the Twin Star Mine on numerous occasions for failure to follow the permit and regulatory requirements. Based on these documented conditions, it is plausible that the damage that occurred to plaintiff's property during the June 5, 2014 flood was the direct result of the defendant's activities. This question of fact can be answered for all class members by developing a storm water run-off model and associated calculations.

The DEP moved for dismissal of the respondents’ second amended complaint on the basis of qualified immunity and the public duty doctrine. However, after a hearing, the circuit court held that motion in abeyance until discovery on these issues had been completed. Once discovery was completed, the DEP filed separate motions for summary judgment against each respondent on March 11, 2019, asserting both the public duty doctrine and qualified immunity. It argued that all of the respondents’ allegations involved discretionary functions, and that under the doctrine of qualified immunity, a state agency cannot be held liable for negligent performance of a discretionary duty. The DEP maintained that while it has a nondiscretionary duty to enforce SCMRA, the manner in which it enforces the law is discretionary. Conversely, the respondents maintained that the DEP was not entitled to qualified immunity, arguing that the DEP breached its nondiscretionary duty to enforce SCMRA by failing to discover certain mining permit violations by Twin Star and failing to issue Notices of Violation.

After a hearing on October 16, 2019, the circuit court denied petitioner's motions. In regard to qualified immunity, the circuit court found there were remaining questions of fact as to whether petitioner's enforcement of SCMRA was discretionary or nondiscretionary. The circuit court stated that "[i]f Plaintiffs can prove their case, the WV DEP's enforcement actions violated clearly established law and qualified immunity would not apply. However, Plaintiffs’ proof is disputed by WV DEP and material issues of fact exist as to whether Plaintiffs can prove their case." It is from this order that petitioner DEP appeals.

II. Standard of Review

It is well-established that "[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co. , 213 W. Va. 80, 576 S.E.2d 807 (2002) ; accord Syl. Pt. 1, W. Va. Reg'l Jail and Corr. Facility Auth. v. A.B. , 234 W. Va. 492, 766 S.E.2d 751 (2014). Moreover, we have held that "[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doctrine." Syl. Pt. 2, Robinson v. Pack , 223 W. Va. 828, 679 S.E.2d 660 (2009) ; accord A.B. , 234 W. Va. at 496, 766 S.E.2d at 755, Syl. Pt. 2. Finally,

[t]he ultimate determination of whether qualified

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