COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
LINK M. SMITH
OPINION BY
v. Record No. 2898-97-3 JUDGE DONALD W. LEMONS
DECEMBER 22, 1998
DEPARTMENT OF MINES, MINERALS AND ENERGY,
DIVISION OF MINED LAND RECLAMATION AND
G & A COAL COMPANY, INC.
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Donald R. Johnson for appellant.
(Mark L. Earley, Attorney General; Richard B.
Zorn, Senior Assistant Attorney General;
John C. Wilkinson, Assistant Attorney
General, on brief), for appellee Department
of Mines, Minerals and Energy, Division of
Mined Land Reclamation.
(Monroe Jamison, on brief), for appellee
G & A Coal Company, Inc.
Link M. Smith appeals the final order of the circuit court
upholding the decision of the Department of Mines, Minerals and
Energy denying him replacement of lost residential water
supplies. Because the trial court committed no error, we affirm.
Link M. Smith owns approximately 324 acres of land in Bandy,
Virginia, most of which is located above an underground coal mine
operated by G & A Coal Company (G & A) pursuant to a permit it
acquired in 1984. Smith has a residential water well located on
his property which he claims has been adversely affected by the
operation of the mine.
Smith has filed four complaints with the Division of Mined
Land Reclamation (DMLR), a branch of the Department of Mines,
Minerals and Energy (DMME). In 1987, his first complaint alleged
that his water supply was diminished in the well, forcing him to
replace it. In 1990, he complained of water loss to his
replacement well. In 1991, Smith complained about the diminished
water supply and the reopening of ground cracks on his property.
In 1993, Smith alleged that he first became aware of pollution
and deterioration of the replacement well. His fourth complaint,
filed on August 10, 1993, alleges loss of residential water
supply. The fourth complaint is the subject of this appeal.
In 1992, the United States Congress passed the Energy Policy
Act of 1992. This Act mandates that companies operating
underground coal mines replace residential water supplies that
were polluted or lost as a result of mining activity. See 30
U.S.C. § 1309(a)(2). This provision applies to any loss that
results from underground mining after October 24, 1992. Id. In
July 1993, the General Assembly of Virginia amended the Virginia
Coal Surface Mining Control and Reclamation Act of 1979 (VCSMCRA)
to similarly require the replacement of lost residential water
supplies. See Code § 45.1-258(B).
On June 28, 1994, the DMLR issued Technical Report #1562 in
response to Smith's fourth complaint. The report concluded that
Smith's water loss complaint in 1993 resulted from mining
activities conducted prior to October 24, 1992. Finding that
Code § 45.1-258(B) requires the replacement of water loss only by
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underground mining activity conducted after October 24, 1992, the
DMLR concluded that it could not order G & A to replace Smith's
lost water.
On November 30, 1994, an administrative hearing was held on
Smith's complaint. The hearing officer granted G & A's petition
to intervene as a party. On March 15, 1995, the hearing officer
issued an opinion finding that because of the location of the
first well, "it is unlikely that underground mining activity by
G & A Coal Co., Inc. has contributed to [Smith's] water losses."
Further, with respect to the second well, the opinion stated
"since the mining activities that resulted in these losses of
water [predated] October 24, 1992, the [DMLR] cannot require
replacement of the supply." On March 17, 1995, the hearing
officer's opinion was adopted by the Deputy Director for
Regulatory Services for the DMME. In the same letter, the Deputy
Director affirmed the hearing officer's opinion and adopted the
hearing officer's "Findings of Fact" and "Conclusions of Law."
By letter dated May 4, 1995, the DMME denied Smith's request for
reconsideration and review.
On May 26, 1995, Smith filed a Notice of Appeal with the
Circuit Court of Tazewell County. Smith received a letter, dated
May 31, 1995, from the Hearings Coordinator of the DMLR, listing
the contents of the administrative record, including the "Formal
Hearing Transcript and exhibits (11/30/94)." On December 23,
1996, the circuit court heard argument from Smith and DMLR, as
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parties, and G & A, as intervenor. By order dated November 6,
1997, the court found substantial evidence in the record to
support the DMLR's decision and dismissed Smith's appeal.
After the entry of the final order, Smith alleges that he
discovered that the DMLR had omitted all hearing exhibits from
the transcript filed with the circuit court. On November 13,
1997, Smith filed a "Motion for Reconsideration of Judgment." On
December 1, 1997, Smith filed a "Motion for Reconsideration of
Judgment and for Order Requiring Completion of Record by Agency."
By order dated January 9, 1998, upon Smith's ore tenus motion to
withdraw the "Motion for Reconsideration of Judgment" and the
concurrence of the DMLR and G & A, the court ordered the November
13 motion stricken from the record and denied Smith's December 1
motion requesting that the allegedly missing exhibits be filed as
a part of the record, stating: "[f]inding the record complete
. . . any possible objection to the completeness of the record is
too late."
THE RECORD
The provisions of the Virginia Coal Surface Mining Control
and Reclamation Act, Code § 45.1-226 et seq., mandate review
procedures conducted by formal administrative hearings. In
addition, the Act makes provisions for parties seeking judicial
review of administrative decisions, and makes all participating
entities subject to the provisions of the Virginia Administrative
Process Act (APA) (Code § 9-6.14:1 et seq.). Code § 45.1-251.
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Part Two A of the Rules of the Supreme Court of Virginia
prescribes appeals pursuant to the Administrative Process Act.
The Rules state:
The agency secretary shall prepare and
certify the record as soon as possible after
the notice of appeal and transcript or
statement of testimony is filed and shall, as
soon as it has been certified by him,
transmit the record to the clerk of the court
named in the notice of appeal. . . . The
agency secretary shall notify all parties in
writing when the record is transmitted,
naming the court to which it is
transmitted. . . .
Rule 2A:3(b).
The record on appeal from an agency
proceeding shall consist of all notices of
appeal, any application or petition, all
orders or regulations promulgated in the
proceeding by the agency, the opinions, the
transcript or statement of the testimony
filed by appellant, and all exhibits accepted
or rejected, together with such other
material as may be certified by the agency
secretary to be a part of the record.
Rule 2A:3(c).
At the hearing before the hearing officer held on November
30, 1994, Smith introduced several exhibits. Smith alleges that
these exhibits were not contained in the record received by the
circuit court. Smith argues that whether it was a mere
oversight, or an intentional exclusion, the agency's failure to
include the exhibits in the administrative record constituted a
failure to comply with its duty under Rule 2A:3(b). The agency
argues that the record received by the circuit court included the
exhibits and cites the circuit court's hearing transcript, the
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court’s failure to indicate a lack of familiarity with the
referenced exhibits during the hearing, and the explicit
statement in its order that it considered the "exhibits in the
administrative record" dismissing Smith's appeal.
By order dated November 6, 1997, the court found substantial
evidence to support the DMLR's decision, and dismissed Smith's
appeal. On November 13, 1997, Smith filed a "Motion for
Reconsideration of Judgment." On December 1, 1997, Smith filed a
"Motion for Reconsideration of Judgment and for Order Requiring
Completion of Record by Agency." On December 3, 1997, a
telephone conference was held during which Smith's counsel moved
to withdraw his November 13 motion on the grounds that pursuant
to Rule 1.1, the court no longer had jurisdiction to vacate,
modify, or otherwise reconsider the verdict. Neither counsel for
DMLR nor G & A had any objection. The court granted the motion
and then considered Smith's December 1 motion.
Without specific citation to any particular rule, Smith
maintains in his December 1 motion that the Rules of the Supreme
Court require the DMLR, after 21 days from the entry of the final
order, to file the allegedly missing documents with the trial
court. 1 Any objection to the status of the record was not timely
and will not be considered on appeal. Rule 5A:18.
1
The provisions of Part 5A of the Rules relating to
completion of the record refer to the transmittal of the record
from the circuit court to the Court of Appeals. Part 5A does not
apply to the transmittal of the record from the agency to the
circuit court. See Rule 2A:3.
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It is the agency's responsibility to prepare and certify the
record to the circuit court. See Rule 2A:3(b),(c). Assuming
without deciding that the circuit court did not have a complete
record before it during the hearing, any objection by Smith was
too late for the trial court to correct the problem and,
consequently, inadequate to preserve the issue for appeal. Had
it been established in a timely manner that the entire record
required By Rule 2A:3(b),(c) was not before the court, failure to
grant Smith's motion for reconsideration of the trial court's
ruling would have been an abuse of discretion. The filing of the
November 13, 1997 motion was within the time the court could act
to correct the problem. Rule 1:1. But the matter was not placed
on the docket and brought to the court's attention so it could
consider the merits of the motion.
"[I]t is well established that the purpose of Rule 5A:18 is
to require a party to raise an issue in a timely fashion before
the trial judge so the court has opportunity to address the issue
and prevent unnecessary appeals." White v. Commonwealth, 21 Va.
App. 710, 720, 467 S.E.2d 297, 302 (1996). Here, the matter was
not placed before the judge in a timely manner, giving the court
the opportunity to address the merits of the issue. To compound
the omission, the November 13, 1997 motion was withdrawn by
Smith, thereby removing it from consideration by the trial court.
Smith's December 1, 1997 motion was filed more than 21 days
after the final order was entered. The court had no power to
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entertain that motion. Consequently, the issue of the
completeness of the record before the trial judge was not
preserved for appeal. Rule 5A:18.
SUBSTANTIAL EVIDENCE
In reviewing an agency decision, "[t]he scope of court
review of a litigated issue under the APA is limited to
determination [of] whether there was substantial evidence in the
agency record to support the decision." State Board of Health v.
Godfrey, 223 Va. 423, 433, 290 S.E.2d 875, 880 (1982); see Code
§ 9-6.14:17. The substantial evidence standard is "designed to
give great stability and finality to the fact-findings of an
administrative agency." Virginia Real Estate Comm'n v. Bias, 226
Va. 264, 269, 308 S.E.2d 123, 125 (1983). A trial court may
reject the findings of fact "only if, considering the record as a
whole, a reasonable mind would necessarily come to a different
conclusion." Id. (citing B. Mezines, Administrative Law § 51.01
(1981)). The burden of proof rests upon the party challenging
the agency determination to show that there was not substantial
evidence in the record to support it. See Code § 9-6.14:17.
The circuit court found substantial evidence in the record
for the DMME to uphold the hearing officer's findings that
Smith's water losses were either unrelated to G & A's mining
activities, or that the mining activities which caused the loss
took place prior to October 24, 1992. Smith argues that the
hearing officer's conclusions were not supported by substantial
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evidence and that pursuant to Code § 45.1-258, he is entitled to
have his water loss replaced.
At the hearing before the hearing officer, the DMLR
introduced Technical Report (TR) #1562 that had been issued by
the DMLR following the filing of Smith's fourth complaint. The
report analyzed information provided by Smith, as well as
"several previous DMLR Technical Reports . . . DMLR permit data,
company mine maps, and Division of Mines' maps . . . ." The
Report determined,
[i]t is likely that underground mining by
G & A . . . caused some damage to some local
water-bearing zones. . . . However, the water
loss complaint regarding [the] Smith
[property] is unsubstantiated. . . . Also,
[Smith's] domestic well is located
approximately 600 feet updip from the mine
works, outside the area of influence.
(Emphasis added). The Report stated further,
[t]he proximity of mining, in terms of
distance and time, is critical in determining
the effects of underground mining. The
[area] being deep mined by G & A . . . in the
area of the complaint . . . was conducted
closest to the well in 1988 and the nearest
pillar extraction in 1989. Since that time
mining operations have continued away from
the complainant's residence. . . . Because
of the location of [Smith's] well . . . it is
unlikely that his well and associated
water-bearing zones have been impacted.
(Emphasis added).
The Report concluded, "[b]ased on the information examined
during the technical investigation, it is unlikely that
underground mining by [G & A] has contributed to water losses in
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[other springs,] [h]owever, since the mining activities that
resulted in these losses of water occurred before October 24,
1992, the [DMLR] cannot require replacement of the supply."
Other evidence included testimony by Jan Zentmeyer and
Anthony S. Scales, both geologists employed with the DMME.
Zentmeyer testified that she had investigated Smith's earlier
complaints and that she had determined that wells and springs
which Smith complained had been affected by G & A's mining
operations were too far away to have been impacted. Scales
testified that although he had not written TR #1562, he was
familiar with Smith's case and the technical reports related to
it. Scales testified that Smith's reliance on another case was
misplaced. 2
On behalf of the appellant, geologist Charles Barlett
testified that water loss suffered by Smith was due to mining
that took place after October 24, 1992. In evaluating the
testimony of the experts, the hearing officer resolved the
conflict in favor of Scales' testimony.
The hearing officer stated, "[t]he division's conclusion
that G & A's mining did not cause material damage to the
2
Smith attempted to rely on an unrelated matter, referred to
as the "Nelson" report at the hearing. Scales testified that
Smith's attempt to rely on the Nelson report was mistaken,
because although in "Nelson" the hydrology had been adversely
affected, it was a "local impact" which was not related to
Smith's well. Additionally, the mining activities that caused
the water loss on the Nelson property occurred before October 24,
1992; consequently, it was not compensable under Code
§ 45.1-258(B).
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hydrological balance outside the permit area is valid. . . . The
evidence at the hearing supported the view that there was not
continuous fracture flow zone." In evaluating all evidence
introduced at the hearing, the hearing officer determined,
"[t]here has been no significant adverse impact on the
hydrological balance in the area in question." The hearing
officer concluded further that Smith's water loss was either
unrelated to underground mining or was caused by mining
operations that occurred before October 24, 1992.
In addition, the hearing officer's opinion stated that G & A
obtained its permit to conduct mining operations in 1984.
Smith's "replacement" well, the subject of this appeal, was
drilled in 1987. Code § 45.1-258(B) requires the replacement of
water lost "from a well or spring in existence prior to the
application for a surface coal mining and reclamation permit
. . . resulting from underground coal mining operations."
Therefore, even if mining operations of G & A after October 24,
1992 caused water loss, because Smith's replacement well was
drilled three years after G & A obtained its permit, the loss is
not covered under the statute. Code § 45.1-258(B); 4 VAC
§ 25-130-817.41(j).
Smith argues that the DMLR's decision was "arbitrary" and
that it acted outside the scope of its authority in this case.
There has been no showing that the DMLR acted in an arbitrary
manner, nor that it acted outside the scope of its authority in
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rendering the Technical Report which determined that Smith's
alleged water losses were not compensable. Smith has also failed
to show that a reasonable mind would necessarily disagree with
these findings. Because we review the decision of an agency with
deference to its findings of fact, where substantial evidence in
the record exists to support the agency's conclusions, we may not
substitute our own judgment for that of the agency.
Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d
1, 7-8 (1988). We hold that substantial evidence was introduced
to support the hearing officer’s conclusion that the DMLR
properly refused to order the replacement of Smith's water
losses. The circuit court did not err in its affirmation of the
agency decision.
CONCLUSION
Because substantial evidence in the agency record supports
the decision that the DMLR was not required to order G & A to
replace Smith's lost residential water supplies, the trial
court’s order upholding the agency's determination is affirmed.
Smith's additional "Request for Writ Requiring Completion of
Record by Agency" is denied.
Affirmed.
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