finding the DEP did not fail to perform a nondiscretionary duty
How later courts described this case
- finding the DEP did not fail to perform a nondiscretionary duty
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
_____________________ FILED
March 16, 2021
No. 20-0063 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_____________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
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
___________________________________________________________
Appeal from the Circuit Court of McDowell County
The Honorable Edward J. Kornish, Judge
Civil Action No. 16-C-96-K
REVERSED AND REMANDED
_________________________________________________________
Submitted: February 10, 2021
Filed: March 16, 2021
John P. Fuller, Esq. Kevin W. Thompson, Esq.
Brent D. Benjamin, Esq. David R. Barney, Jr., Esq.
Daniel T. LeMasters, Esq. Thompson Barney
Jeffrey M. Carder, Esq. Charleston, West Virginia
Bailey & Wyant, PLLC
Charleston, West Virginia
Counsel for Petitioner
Stephen P. New, Esq.
Amanda J. Taylor, Esq.
The Law Office of Stephen P. New
Beckley, West Virginia
Counsel for the Respondents
JUSTICE WOOTON delivered the Opinion of the Court.
ii
SYLLABUS BY THE COURT
1. “This 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).
2. “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).
3. “The ultimate determination of whether qualified or statutory immunity bars
a civil action is one of law for the court to determine. Therefore, unless there is a bona fide
dispute as to the foundational or historical facts that underlie the immunity determination,
the ultimate questions of statutory or qualified immunity are ripe for summary disposition.”
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).
4. “In the absence of an insurance contract waiving the defense, the doctrine of
qualified or official immunity bars a claim of mere negligence against a State agency not
within the purview of the West Virginia Governmental Tort Claims and Insurance Reform
Act, W. Va. Code § 29-12A-1, et seq., and against an officer of that department acting
within the scope of his or her employment, with respect to the discretionary judgments,
i
decisions, and actions of the officer.” Syl. Pt. 6, Clark v. Dunn, 195 W. Va. 272, 465
S.E.2d 374 (1995).
5. “‘Unless the applicable insurance policy otherwise expressly provides, a
State agency or instrumentality, as an entity, is immune under common-law principles from
tort liability in W. Va. Code § 29-12-5 actions for acts or omissions in the exercise of a
legislative or judicial function and for the exercise of an administrative function involving
the determination of fundamental governmental policy.’ Syl. Pt. 6, Parkulo v. W. Va. Bd.
of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).” Syl. Pt. 8, W. Va. Reg’l
Jail and Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
6. “‘The common-law immunity of the State in suits brought under the authority
of W. Va. Code § 29-12-5 (1996) with respect to judicial, legislative, and executive (or
administrative) policy-making acts and omissions is absolute and extends to the judicial,
legislative, and executive (or administrative) official when performing those functions.’
Syl. Pt. 7, Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507
(1996).” Syl. Pt. 9, W. Va. Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W. Va. 492,
766 S.E.2d 751 (2014).
7. “To determine whether the State, its agencies, officials, and/or employees are
entitled to immunity, a reviewing court must first identify the nature of the governmental
acts or omissions which give rise to the suit for purposes of determining whether such acts
ii
or omissions constitute legislative, judicial, executive or administrative policy-making acts
or involve otherwise discretionary governmental functions. To the extent that the cause of
action arises from judicial, legislative, executive or administrative policy-making acts or
omissions, both the State and the official involved are absolutely immune pursuant to Syl.
Pt. 7 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507
(1996).” Syl. Pt. 10, W. Va. Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W. Va. 492,
766 S.E.2d 751 (2014).
8. “To the extent that governmental acts or omissions which give rise to a cause
of action fall within the category of discretionary functions, a reviewing court must
determine whether the plaintiff has demonstrated that such acts or omissions are in
violation of clearly established statutory or constitutional rights or laws of which a
reasonable person would have known or are otherwise fraudulent, malicious, or oppressive
in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).
In absence of such a showing, both the State and its officials or employees charged with
such acts or omissions are immune from liability.” Syl. Pt. 11, W. Va. Reg’l Jail and Corr.
Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
iii
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
1
The DEP also alleged that the circuit court erred as a matter of law in denying its
motion for summary judgment under the public duty doctrine. During oral argument,
however, the DEP recognized that the public duty doctrine was not properly before the
Court, stating that the only reason it raised the issue on appeal was due to the circuit court’s
conflation of qualified immunity with the public duty doctrine. In light of the DEP’s
concession, and because we resolve this case on qualified immunity grounds, we decline
to address this issue.
2
The respondents also sought class certification, which was denied by the circuit
court based on their failure to satisfy the “numerosity” and “commonality” requirements
1
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 suit 3 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 complaint 5 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
under West Virginia Rule of Civil Procedure 23(a). The circuit court’s decision regarding
class certification is not the subject of this appeal.
3
The respondents asserted causes of action for trespass to property and chattels,
private and public nuisance, negligent infliction of emotional distress, property damage,
and prima facie negligence against Twin Star. They asserted causes of action for “simple
and gross negligence” and violations of West Virginia Surface Coal Mining and
Reclamation Act (“SCMRA”), W. Va. Code § 22-3-1 to -38 (2014 & Supp. 2020), against
both Twin Star and the DEP. Additionally, they sought injunctive relief against the DEP
pursuant to the “citizen suit” provision of SCMRA, West Virginia Code § 22-3-25(a)(2).
4
Twin Star reached a confidential settlement with the respondents and was
dismissed from the litigation, as set forth in the circuit court’s Settlement Order entered
May 9, 2019.
5
The respondents filed a complaint, an amended complaint, and a second amended
complaint. The second amended complaint was filed pursuant to an agreed order entered
on April 20, 2018.
2
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
6
The DEP is the governmental entity which is responsible for enforcing the
requirements of SCMRA. See generally W. Va. Code § 22-3-1 to -38. We note that certain
statutes contained within SCMRA were amended by the Legislature in 2017 and 2018 after
the respondents instituted action against the DEP; however, none of the statutory
amendments impact our decision.
7
Presumably the alleged stormwater water runoff and drainage issues made against
Twin Star are the basis of the respondents’ allegations that the DEP negligently granted
Twin Star the permits to operate its Bull Creek Surface Mine No. 45 “which did not meet
the requirements of SCMRA[,]” as well as their allegations that DEP was negligent in
allowing Twin Star to violate SCMRA without issuing Notices of Violation. However, the
respondents neither connect the allegations made against Twin Star to the DEP nor do they
allege any specific regulatory or statutory violations against the DEP in that regard.
3
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
8
West Virginia Code § 22-3-25(a)(2) provides, in relevant part:
(a) Except as provided in subsection (b) of this section,
any person having an interest which is or may be adversely
affected may commence a civil action in the circuit court of the
county to which the surface-mining operation is located on the
person’s own behalf to compel compliance with this article:
....
(2) Against the director, division, surface mine board or
appropriate division employees, to the extent permitted by the
West Virginia constitution and by law, where there is alleged
a failure of the above to perform any act or duty under this
article which is not discretionary.
(Emphasis added).
4
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.
5
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
6
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,
7
[t]he ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the court
to determine. Therefore, unless there is a bona fide dispute as
to the foundational or historical facts that underlie the
immunity determination, the ultimate questions of statutory or
qualified immunity are ripe for summary disposition.
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996); accord
A.B., 234 W. Va. at 496, 766 S.E.2d at 755, Syl. Pt. 3.
III. Discussion
The only issue before the Court is whether the DEP was entitled to qualified
immunity. In that regard, the respondents allege that the DEP was negligent “in detecting
violations and issuing Notices of Violations to Twin Star Mining[,]” to which the DEP
responds that while it does have a nondiscretionary duty to enforce SCMRA, the manner
in which it enforces the law involves the exercise of judgment. As the DEP states, “[i]n
other words, determining the manner in which it enforces provisions under SCMRA is a
discretionary function. Because Plaintiffs are asserting negligence claims against WVDEP
for its discretionary judgments, decisions, and actions, the WVDEP is entitled to summary
judgment on the basis of qualified immunity.” Conversely, the respondents argue that there
are genuine issues of material fact regarding 1) whether their allegations against the DEP
pertain to nondiscretionary or discretionary functions, and 2) whether the DEP’s negligent
acts or omissions violated clearly established law.
8
This Court has repeatedly found that the purpose of qualified immunity is
to protect the public executive officer because . . . an officer
should not be faced with the choice of doing his duty and being
constantly faced with litigation for doing so. The public
interest is that the official conduct of the officer not be
impaired by constant concern about personal liability. As the
Restatement (Second) of Torts comment quoted suggests, this
concern need not always prevent the attachment of liability to
the State:
“With respect to some government functions, the
threat of individual liability would have a
devastating effect, while the threat of
governmental liability would not significantly
impair performance.”
Restatement (Second) of Torts § 895D, cmt. j, in part (1979).
Parkulo v. W. Va. Bd. of Prob. and Parole, 199 W. Va. 161, 177-78, 483 S.E.2d 507, 523-
24 (1996). 9 Further, we held in syllabus point six of Clark v. Dunn, 195 W. Va. 272, 465
S.E.2d 374 (1995):
In the absence of an insurance contract waiving the
defense, 10 the doctrine of qualified or official immunity bars a
claim of mere negligence against a State agency not within the
purview of the West Virginia Governmental Tort Claims and
9
See Syl. Pt. 9, in pertinent part, Parkulo, 199 W. Va. at 164, 483 S.E.2d at 510 (“In
cases arising under W. Va. Code § 29-12-5, and in the absence of express provisions of the
insurance contract to the contrary, the immunity of the State is coterminous with the
qualified immunity of a public executive official whose acts or omissions give rise to the
case. However, on occasion, the State will be entitled to immunity when the official is not
entitled to the same immunity; in others, the official will be entitled to immunity when the
State is not. The existence of the State’s immunity . . . must be determined on a case-by-
case basis.”).
10
There is no assertion by the respondents that the insurance policy at issue waives
qualified immunity.
9
Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., and
against an officer of that department acting within the scope of
his or her employment, with respect to the discretionary
judgments, decisions, and actions of the officer.
(Footnote and emphasis added). Moreover, the Court held in syllabus points eight and nine
of A.B.:
“Unless the applicable insurance policy otherwise
expressly provides, a State agency or instrumentality, as an
entity, is immune under common-law principles from tort
liability in W. Va. Code § 29-12-5 actions for acts or omissions
in the exercise of a legislative or judicial function and for the
exercise of an administrative function involving the
determination of fundamental governmental policy.” Syl. Pt. 6,
Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.Va.
161, 483 S.E.2d 507 (1996).
“The common-law immunity of the State in suits
brought under the authority of W. Va. Code § 29-12-5 (1996)
with respect to judicial, legislative, and executive (or
administrative) policy-making acts and omissions is absolute
and extends to the judicial, legislative, and executive (or
administrative) official when performing those functions.” Syl.
Pt. 7, Parkulo v. W. Va. Bd. of Probation and Parole, 199
W.Va. 161, 483 S.E.2d 507 (1996).
234 W. Va. at 497, 766 S.E.2d at 756, Syl. Pts. 8 and 9.
In ascertaining whether the DEP is entitled to qualified immunity, the Court
first must determine whether the state agency is alleged to have engaged in a discretionary
or nondiscretionary function. That analysis involves the following review:
To determine whether the State, its agencies, officials,
and/or employees are entitled to immunity, a reviewing court
must first identify the nature of the governmental acts or
omissions which give rise to the suit for purposes of
10
determining whether such acts or omissions constitute
legislative, judicial, executive or administrative policy-making
acts or involve otherwise discretionary governmental
functions. To the extent that the cause of action arises from
judicial, legislative, executive or administrative policy-making
acts or omissions, both the State and the official involved are
absolutely immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va.
Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507
(1996).
A.B., 234 W. Va. at 497, 766 S.E.2d at 756, Syl. Pt. 10. If the Court determines that the
DEP’s alleged acts or omissions are discretionary then the following analysis must occur:
To the extent that governmental acts or omissions which
give rise to a cause of action fall within the category of
discretionary functions, a reviewing court must determine
whether the plaintiff has demonstrated that such acts or
omissions are in violation of clearly established statutory or
constitutional rights or laws of which a reasonable person
would have known or are otherwise fraudulent, malicious, or
oppressive in accordance with State v. Chase Securities, Inc.,
188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a
showing, both the State and its officials or employees charged
with such acts or omissions are immune from liability.
A.B., 234 W. Va. at 497, 766 S.E.2d at 756, Syl. Pt. 11.
We begin by examining the nature of the DEP’s alleged acts or omissions to
ascertain whether they are discretionary or nondiscretionary. First, the respondents allege
that the DEP was negligent in issuing Twin Star Permit Nos. S-4020-95 and S-4011-97
“based upon designs which did not meet the requirements of SCMRA.” In that regard, the
relevant provisions of SCMRA provide that
the Legislature vests authority in the secretary of the
Department of Environmental Protection to:
11
(1) Administer and enforce the provisions of this article as it
relates to surface mining to accomplish the purposes of this
article;
....
(3) Promulgate, administer and enforce rules pursuant to this
article . . . .
W. Va. Code § 22-3-2 (c); see also W. Va. Code § 22-3-4 (providing, in part, that the DEP
secretary “shall administer the provisions of this article relating to surface-mining
operations[]” and “may” propose rules for promulgation, “[m]ake investigations or
inspections necessary to ensure complete compliance with the provisions of this code[,]”
conduct hearings and “[e]nforce the provisions of this article as provided in this article[.]”).
Further, surface mining without a permit is prohibited by West Virginia Code § 22-3-8,
and West Virginia Code § 22-3-9 sets forth the permit application requirements and
contents. Once an application is complete and submitted to the DEP for approval, it is
within the purview of the DEP to ascertain if the application comports with the statutory
requirements. For example West Virginia Code § 22-3-18, which concerns the approval,
the denial, the need to revise, or the prohibition of a permit, provides that “[n]o permit or
significant revision of a permit may be approved unless the applicant affirmatively
demonstrates and the director finds in writing on the basis of the information set forth in
the application . . .” that the statutory requirements are met. Id. § 22-3-18 (b) (emphasis
added).
12
The DEP contends that under SCMRA the process or function of determining
whether the information contained in the application satisfies the statutory requirements
necessarily involves an exercise of judgment, making it a discretionary function. We agree.
According to the aforementioned statutes, in reviewing a permit application, it is within
the exercise of the DEP’s judgment whether a given permit sufficiently satisfies the
statutory requisites of SCMRA.
Second, the respondents allege that the DEP failed to issue Notices of
Violation when Twin Star allegedly committed violations of SCMRA. In this regard, West
Virginia Code § 22-3-17 does provide that “[i]f any of the requirements of this article, rules
promulgated pursuant thereto or permit conditions have not been complied with, the
director shall cause a notice of violation to be served upon the operator or the operator’s
duly authorized agent.” (Emphasis added). This Court recognized in State ex rel. ERP
Environmental Fund, Inc. v. McGraw, 239 W. Va. 689, 805 S.E.2d 800 (2017), that “the
DEP had a duty to issue a notice of violation only upon its finding of a specific violation
of S[C]MRA.” Id. at 694, 805 S.E.2d at 805. The Court further indicated that a finding
that the DEP failed to perform this nondiscretionary duty was warranted only if the DEP
had “unmistakable evidence” of a violation and failed to issue a Notice of Violation. Id. at
693, 805 S.E.2d at 804.
Our review of the allegations and the evidence demonstrates that the
respondents’ allegations and evidence failed to meet the standard of ERP Environmental.
13
Their experts acknowledge in their respective reports that the DEP heavily cited the Bull
Creek Surface Mine No. 45, issuing thirty-eight Notices of Violation prior to the June 5,
2014, flood. The respondents now complain that the DEP missed or ignored additional
perceived “violations” and was negligent in failing to detect and issue those Notices of
Violation to Twin Star. As the DEP argues: “What Plaintiffs are really asserting in their
Complaint is that the WVDEP failed to issue the Notices of Violation that the Plaintiffs in
hindsight felt that it should have issued.” We agree. Again, if there existed unmistakable
evidence of a violation and the DEP turned a blind eye to that evidence and failed to issue
a Notice of Violation, then the DEP would have violated its nondiscretionary statutory
duty. See id. at 693, 805 S.E.2d at 804. But the respondents fail to allege or to produce
evidence that this is what occurred in the instant case. Instead, their allegations all involve
what they contend should be the process by which the DEP ferrets out and acts on evidence
of alleged violations of SCMRA, which is a process that undeniably involves the exercise
of judgment and is therefore discretionary in nature. 11
11
At this juncture we note that although the respondents allege in their count seeking
“Injunctive Relief” (brought pursuant to West Virginia Code § 22-3-25(a)(2), which
permits suits against the DEP to be brought by concerned citizen suits) that the DEP has
failed “to perform its non-discretionary duties[,]” the mere allegation does not make it so.
A careful review of the pleadings demonstrates that the respondents aver the same acts or
omissions by the DEP as discussed supra, which we have found to be discretionary
functions and not “non-discretionary” as averred by the respondents. As such, the
respondents are afforded no right to injunctive relief under the statute based upon the
allegations in their complaint. See id. and supra note 8; see also ERP Env’t, 239 W. Va.
at 693-94, 805 S.E.2d at 804-05 (finding the DEP did not fail to perform a nondiscretionary
duty).
14
Having reached the conclusion that the DEP’s alleged acts or omissions that
are set forth in the respondents’ second amended complaint fall within the category of
discretionary functions, we now examine whether the respondents have demonstrated that
the alleged negligent acts or omissions violated “clearly established statutory or
constitutional rights or laws of which a reasonable person would have known or are
otherwise fraudulent, malicious, or oppressive[.]” A.B., 234 W. Va. at 497, 766 S.E.2d at
756, Syl. Pt. 11. In the absence of such a showing by the respondents, the DEP is immune
from liability. Id.
First, in regard to the permit process, the respondents fail to cite to any
specific provision of SCMRA, or corresponding West Virginia State Rule, to substantiate
their general allegations that the DEP’s acts or omissions violated SCMRA. Further, the
respondents’ experts do not cite to any violation arising from the DEP issuing the permits.
Instead, the experts note Twin Star’s failure to adhere to requirements under the permits
and the actions of the DEP in citing Twin Star on “numerous occasions for failure to follow
the permit and regulatory requirements.” Our review of the appendix record reveals that
the respondents have failed to establish any specific regulatory, statutory or constitutional
violation by the DEP concerning its issuing of the permits involved in this case. See
generally W. Va. Code § 22-3-9. The appendix record additionally reveals that the
respondents have not offered any evidence or allegations that the DEP’s acts or omissions
“are otherwise fraudulent, malicious, or oppressive.” See A.B., 234 W. Va. at 497, 766
S.E.2d at 756, Syl. Pt. 11.
15
Second, concerning the DEP’s failure to issue Notices of Violation to Twin
Star, the respondents again have failed to allege, let alone show, any specific regulatory,
statutory or constitutional violations by the DEP in the performance of its discretionary
acts. The respondents also fail to plead, assert, or otherwise demonstrate that the DEP’s
alleged acts or omissions were “fraudulent, malicious, or oppressive.” Id. The appendix
record contains no evidence of clear violations of SCMRA by Twin Star which the DEP
knew about and failed to address by issuing a Notice of Violation. 12 Conversely, both of
the respondents’ experts noted that the DEP issued numerous Notices of Violation
regarding Twin Star Bull Creek Surface Mine No. 45, which evinces that the DEP was
issuing Notices of Violation when it was presented with evidence of a clear violation of
SCMRA by Twin Star.
In summary, neither the respondents in their second amended complaint nor
the experts in their respective reports linked any alleged act or omission on the part of the
DEP to any specific nondiscretionary duties imposed upon it by law, or alleged that the
DEP had committed any express statutory or regulatory violations. Because the record is
devoid of any evidence which demonstrates that the DEP’s alleged discretionary acts or
omissions are in violation of “clearly established statutory or constitutional rights or laws
of which a reasonable person would have known or are otherwise fraudulent, malicious, or
12
To the extent that the respondents do allege specific statutory and regulatory
violations against Twin Star, they fail to connect any of these violations to DEP.
16
oppressive[,]” the DEP is entitled to qualified immunity pursuant to our well-established
law. A.B., 234 W. Va. at 497, 766 S.E.2d at 756, Syl. Pt. 11. We therefore find that the
circuit court erred in denying the DEP’s motion for summary judgment on the basis of
qualified immunity.
IV. Conclusion
For the foregoing reasons, we reverse the December 30, 2019, order entered
by the Circuit Court of McDowell County, and remand the case for entry of an order
granting the DEP summary judgment, thereby dismissing the action against it.
Reversed and remanded.
17