United States District Court, S.D. West Virginia, Charleston Division
OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HICHLANDS CONSERVANCY, WEST VIRGINIA RIVERS COALITION and SIERRA CLUB, Plaintiffs,
FOLA COAL COMPANY, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court is Fola Coal Company, LLC's
(“Fola”) Motion to Dismiss. ECF No. 9. Fola
argues that Plaintiffs' claims should be dismissed
because the doctrine of res judicata precludes
them. As explained below, the Court believes
that Plaintiffs' claims present sufficient differences
from prior claims to prevent the application of either claim
preclusion or issue preclusion. Consistent with that finding,
the Court DENIES Fola's Motion to
case is but one in a series of actions filed in this Court by
Plaintiffs. With an interest in Appalachian
ecosystems, Plaintiffs have brought various suits alleging
violations of environmental laws and regulations. See
e.g. Compl., OVEC v. Fola Coal Co., LLC, No.
2:13-5006, ECF No.1; Compl., OVEC v. Fola Coal Co.,
LLC, No. 2:13-21588, ECF No. 1 (consolidated with Case
No. 2:13-16044); Compl., OVEC v. Pocahontas Land
Corp., No. 3:14-11333, ECF No. 1; Compl., OVEC v.
Fola Coal Co., LLC, No. 2:15-1371, ECF No. 1; Compl.,
OVEC v. Southeastern Land, LLC, No. 3:18-77, ECF No.
1. Indeed, Plaintiffs have filed a fair portion of these
actions against Fola. See Id. These parties are
neither strangers to each other, nor this Court.
these actions, Plaintiffs have alleged violations of the
Federal Water Pollution Control Act, 33 U.S.C. § 1251
et seq. (the “Clean Water Act”) and the
Surface Mining Control and Reclamation Act, 30 U.S.C. §
1201 et seq. (“SMCRA”). See Id.
Plaintiffs have claimed that companies, including Fola, have
discharged pollutants into waters adjacent to current or
former mining sites. This release of polluting substances,
claims Plaintiffs, has violated permits issued to these
companies under the Clean Water Act and SMCRA.
generally describable as environmental pollution lawsuits,
the precise environmental focus of Plaintiffs' actions
has changed over the years. In years past, Plaintiffs alleged
violations of the relevant permits and law because of the
release of an excess amount of selenium, a pollutant that
affects the water quality of streams and waterways.
See Compl., OVEC v. Fola Coal Co., LLC, No.
2:12-3750; see generally OVEC v. Fola Coal Co., LLC,
No. 2:12-3750, 2013 WL 6709957 (S.D. W.Va. Dec. 19, 2013).
However, since that time, Plaintiffs' concern has shifted
from selenium discharge to the release of ionic pollutants
that lead to increased conductivity of the waters. See
Compl, ECF No. 1; Compl., OVEC v. Fola Coal Co.,
LLC, No. 2:13-21588; OVEC v. Fola Coal Co.,
LLC, 120 F.Supp.3d 509, 511, 513-16 (S.D. W.Va. 2015)
(adjudicating case No. 2:13-21588); OVEC v. Fola Coal
Co., LLC, No. 2:15-1371, 2017 WL 1276059, *8 (S.D. W.Va.
Apr. 4, 2017).
case echoes the theme of these more recent cases. Plaintiffs
allege that Fola has discharged, and continues to discharge,
ionic pollutants in violation the Clean Water Act
(“CWA”) and Fola's permits issued under both
the CWA and the SMCRA. Specifically, Plaintiffs allege these
discharges emanate from two mines owned by Fola: Surface Mine
No. 4A and Bullpen Surface Mine. Compl, ¶ 3.
These discharges, according to Plaintiffs, have impaired
waters adjacent to these mines. Pollutants from the Surface
Mine No. 4A have allegedly flowed into Right Fork, a
tributary of Leatherwood Creek; pollutants from the Bullpen
Surface Mine have allegedly flowed into Bullpen Fork, a
tributary of Right Fork. Id. at ¶¶ 41-66.
focus upon certain sources of discharge within each of the
mining sites. With regard to the Surface Mine No. 4A,
Plaintiffs claim that Outlets 022 and 023 have discharged,
and are discharging, pollutants into Right Fork, in violation
of Fola's permits WV1013815 (permit under CWA provisions)
and S200502 (Surface Mining Permit). Id. at
¶¶ 41-42, 51, 66, 87. Concerning the Bullpen
Surface Mine, Plaintiffs assert that Outlets 001 and 009 have
discharged, and are discharging, those same pollutants into
Bullpen Fork, in violation of Fola's permits WV1017934
and S200798. Id. at ¶¶ 57-58, 66, 87.
currently pending Motion to Dismiss in this matter, Fola does
not directly challenge the substance of Plaintiffs'
allegations. Instead, Fola claims that Plaintiffs' claims
are barred because, in essence, Plaintiffs have already swung
and missed during their previous at-bats to challenge
Fola's discharges from both the Surface Mine No. 4A and
the Bullpen Surface Mine.
correctly notes that Plaintiffs have alleged violations
concerning discharges from both of those mines in two
previous suits, Fola I and Fola II. In the
first, filed on July 26, 2012, Plaintiffs sued Fola over
selenium discharges from, among other sites, the Surface Mine
No. 4A and the Bullpen Surface Mine. OVEC v. Fola Coal
Co., LLC (“Fola I”), No. 2:12-3750,
2013 WL 6709957, at *2. At issue were the selenium discharges
from Outlets 022, 023, and 027 at the Surface Mine No. 4A,
and Outlet 009 at the Bullpen Surface Mine. The alleged
violations took place from July 2008 through March 2012.
Ex. 2 Def.'s Mem. in Supp. of Mot. to Dismiss,
ECF No. 10-2, at App. A & B. After a finding of
liability, the parties entered a Consent Decree that resolved
the Plaintiffs' claims of violations contained within
their complaint. Ex. 4 Def.'s Mem. in Supp. of Mot.
to Dismiss, ECF No. 10-4, at ¶ 33. However, the
Consent Decree expressly resolved only those claims of
violations, “through the Effective Date of [the]
Decree.” Id. The Court entered the Consent
Decree on February 2, 2015, rendering the decree effective on
that same day. Therefore, that suit, No. 2:12-3750,
adjudicated only the selenium violations from July 2008
through February 2, 2015.
time of the second suit, Plaintiffs had advanced beyond
targeting selenium discharges, and had zeroed in on ionic
pollutants and conductivity. This second suit, Fola
II, concerned only the Surface Mine No. 4A. Filing the
original complaint on August 8, 2013, Plaintiffs alleged that
Fola had violated its permits during the period from
September 2007 through the date of the Complaint, by
discharging ionic pollutants from, among other sources,
Outlets 022, 023, and 027 at the Surface Mine No. 4A. Ex.
3 Def.'s Mem. in Supp. of Mot. to Dismiss, ECF No.
10-3, at ¶ 47, 49; OVEC v. Fola Coal Co., LLC
(“Fola II”), 120 F.Supp.3d at 539-41.
However, the evidence adduced at trial covered the period
until September 2014. Fola II, 120 F.Supp.3d at 540.
After a bench trial on liability, the Court found that
Plaintiffs failed to establish violations regarding Outlets
022, 023, and 027. Id. at 543-44. The Court found
“that Plaintiffs had not met their burden of proving
that discharges from Outlets 022, 023, and 027 cause or
materially contribute to biological impairment of Right
Fork.” Id.at 544. Because of this finding, the
Court granted judgment as a matter of law in favor of Fola
regarding the alleged violations of the permit governing the
Surface Mine No. 4A, covering the period from September 2007
until September 2014. Id.
the general finding, this Court's exact rationale in
Fola II is relevant to the current motion pending
before the Court in this case. In Fola II, the Court
addressed Fola's argument that Plaintiffs had failed to
isolate the effects of the discharges from Outlets 022, 023,
and 027. Id. at 543. As noted by the Court, Outlets
022 and 023 discharge into Right Fork, while Outlet 027
discharges in Cannel Coal Hollow, another tributary of
Leatherwood Creek. Id. But those were by no means
the only outlets affecting Right Fork. This Court noted,
“some twelve additional outlets discharge into Right
Fork or Cannel Coal Hollow upstream of Plaintiffs'
compliance sampling location.” Id. Citing the
testimony of one of Plaintiffs' expert witnesses, Dr.
Margret Palmer, the Court found that “Plaintiffs'
sampling does not isolate the effect of discharges only from
Outlets 022, 023, and 027.” Id. (citing to the
the Court proceeded to reason that the percentage of flow
attributable to Outlets 022, 023, and 027 only accounted for
one-eight of the total flow of Right Fork. Id. at
543-44. Relying upon the flow reports of both Plaintiffs and
the West Virginia Department of Environmental Protection, the
Court found that a one-eighth contribution to the total flow
was insufficient to establish a material contribution to the
impairment of Right Fork. Id. Without additional
scientific evidence, the Court could only speculatively
connect the outlet discharges to Plaintiffs' sampling
locations. Id. at 544. Simply, the multitude of
contributing flow sources prevented the Court from finding
the causal link between those outlet discharges and Right
two years after both the resolution of Fola I and
the dismissal of the relevant claims in Fola II,
Plaintiffs filed this action. Plaintiffs are now on their
third challenge to discharges from outlets at the Surface
Mine No. 4A. More specifically, including this action,
Plaintiffs have challenged discharges from Outlets 022 and
023 three times, two of which allege violations due to the
discharge of ionic pollutants leading to conductivity issues
in Right Fork.
action constitutes Plaintiffs' second challenge to
discharges from the Bullpen Surface Mine, but this is the
first time Plaintiffs have alleged conductivity issues due to
discharges from that mine's outlets. But, Plaintiffs have
never before alleged violations due to discharges from Outlet
001 of Bullpen Surface Mine, even though Fola I
concerned selenium output from Outlet 009.
briefly chronicled the previous two rounds between these
parties, and provided a basic description of this action, the
Court will proceed to the heart of the question confronting
it: Are Plaintiffs claims, or parts of their claims, barred
because they have been, or could have been, argued and have
already been decided? As explained below, the Court will
allow Plaintiffs to continue with their claims due to the
sufficient material differences.
STANDARD OF REVIEW
to overcome a motion to dismiss under Federal Rule 12(b)(6),
a complaint must state plausible claims. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 546 (2007). This standard
requires a plaintiff to set forth the “grounds”
for an “entitle[ment] to relief” that is more
than mere “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Id. at 555 (internal quotations and
citations omitted). 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 (2009)
(internal quotations and citation omitted). Facial
plausibility exists when a claim contains “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted).
the Court accepts the factual allegations in the complaint as
true. Those allegations, however, “must be enough to
raise a right to relief above the speculative level . . . .
” Twombly, 550 U.S. at 555 (citations
omitted). If the allegations in the complaint, assuming their
truth, do “not raise a claim of entitlement to relief,
this basic deficiency should . . . be exposed at the point of
minimum expenditure of time and money by the parties and the
court.” Id. at 558 (internal quotations and
citations omitted). “Although for the purposes of a
motion to dismiss we must take all of the factual allegations
in the complaint as true, we are not bound to accept as true
a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (internal quotations and
citation omitted). Finally, a court must also “draw[ ]
all reasonable factual inferences from those facts [alleged]
in the plaintiff's favor . . . .” Martin v.
Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (internal
quotations omitted) (quoting Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002) (internal citations omitted)).
the usual 12(b)(6) motion, Fola bases its Motion to Dismiss
solely upon res judicata. Mot. to Dismiss,
ECF No. 9. The Fourth Circuit has confirmed the
appropriateness of resolving res judicata issues on
a motion to dismiss. See Andrews v. Daw, 201 F.3d
521, 524 n.1 (4th Cir. 2000) (citing Thomas v.
Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir.
1967)). But, in considering whether res judicata
precludes an action, the issue must “clearly appear
on the face of the complaint.” Id. (quoting
Richmond, Fredericksburg & Potomac R. Co. v.
Frost, 4 F.3d 244, 250 (4th Cir. 1993)). Despite the
facial clarity requirement, the Court “may take
judicial notice of facts from a prior judicial proceeding
when the res judicata defense raises no disputed
issue of fact.” Id. (citations omitted).
res judicata arguments breaks down upon two lines of
demarcation. First, there is the separation based upon the
relevant mine: the Surface Mine No. 4A and the Bullpen
Surface Mine. Second, Fola divides its reasoning between
preclusion doctrines: claim preclusion and issue preclusion.
Fola asserts that claim preclusion bars Plaintiffs'
claims regarding both the Surface Mine No. 4A and the Bullpen
Surface Mine. ...