reply brief, Commonwealth of Pennsylvania and Pennsylvania Fish and Boat Commission v. Consol Energy and Consolidation Coal Co., No. 13 0885

Transcript

1 IN THE COURT OF APPEALS OF WEST VIR SUPREME 0 [1 I~'; IA ~ 13-0885 No. Docket JAN 7 [email protected]! [ Commonwealth Pennsylvania RORY L PERRYll,CLERK I of Pennsylvania, COURTOF APPEALS I SUPREME WEST OF VIRGINIA and Commission, Fish Boat PetitionerslPlaintiffs Below, Appeal from a final of order Circuit Court of Monongalia the v. County (No. ll-C-556) Con sol Energy, Inc., Consolidation Coal Company, Defendants Below, Respondents Reply Brief Petitioners' Counsel for Petitioners, # 9286) Bar (W.Va. Z. Sharon Hall Robert #1212) Bar (W.Va. Fitzsimmons P. Counsel of Record Counsel of Record ZIMMER KUNZ, PLLC THE FITZSIMMONS LAW FIRM 310 1609 Warwood Avenue Street Grant 3000 Wheeling, WV 26003 Suite (304)277-1700 (p) 15219 Pittsburgh, PA (412)281-8000 (p) (304)277-1705 (t) (412)281-1765 (t) [email protected] [email protected]

2 TABLE OF AUTHORITIES (2002) v. Pa, 492, 788 A.2d 357 567 ... 6 Commonwealth Beam, V. Commonwealth. Dept Pa, Game Commonwealth. Commission ... 6 Pa, 121,555 Resources, 812 (1989) ofEnvironrnental 521 A.2d 312 1~, Commw. Pa, 11 Kassab, V. 6 ... (1973) 86 A.2d Payne Pennsylvania West 658, S.Ct. 553,43 V. 262 Virginia, U.S. 8 ... (1923) 1117 67 L.Ed. Statutes, Regulations Rules. 9 7, 6, ... 27 Section I., Art. Pa.Const. ... et seq 101 passim . § Pa.C.S. 30 71 P.S. § 732-101 et seq ... 8 i

3 TABLE OF CONTENTS to Introduction ... 1 the Reply THE TO ARGUMENTS REGARDING REPLY RESPONDENTS' (1) IMPLIED EXPRESS OF THE PETITIONER AGENCY ... 1 AND POWERS of the which statute interpretation suggests Respondent A. a narrow the purpose frustrates stated of the Petitioner Agency ... 1 Respondents misconstrue, misstate B. misapply case law, and statutes, and portions of Petitioners Complaint ... .3 (2) REPLY REGARDING RESPONDENTS' ARGUMENTS REGARDING THE LITIGATION GRANTED TO THE PETITIONER AUTHORITY BY 7 PENNSYLVANIA A TIORNEY GENERAL ... THE AGENCY A. its plain language and By express language of the delegation the letter, the Attorney General delegated to the Petitioner agency its seeking standing the West Virginia action bring redress to for the killing of Pennsylvania fish ... 7 Conclusion and Prayer for Relief ... 9 ii

4 INTRODUCTION TO REPLY THE is clear that seek to avoid responsibility for the killing of tens of It Respondents and and by a narrow, absurd reading of30 Pa.C.S. §§ 101 et seq, offish thousands amphibians settled the law regarding ignoring express and implied powers completely Pennsylvania an of and so, Respondents misquote agency. mischaracterize Petitioner's Complaint, the doing In statute and court decisions. This Reply focuses on these issues while reinforcing relevant the fundamental supporting the Petitioner's prayer for relief. basis REPLY TO ARGUMENTS REGARDING THE EXPRESS AND RESPONDENTS' (1) OF THE PETITIONER AGENCY POWERS IMPLIED Respondent suggests a narrow interpretation of the statute which frustrates the A. of the Petitioner Agency purpose stated the Pennsylvania and Boat Commission, as the agency's The suggests, is Fish title Pennsylvania tasked with the agency protection and propagation management, of the Commonwealth's fish and amphibian species. The PFBC's stated purpose is set forth within 30 the 30 Title 30, known as of "Fish and Boat Code." Pa.C.S. is a subsection 2506(a), which section of one of one sentence suggest interpretation § 101. a narrow Pa.C.S. Respondents the Honorable of chapter 2506, and suggest this lower Court affirm subsection (b) within to subsection purpose stated of that the frustrate limit and and court's reading incorrect narrow cannot they of the Petitioner agency .. Yet, no matter how hard the Respondents try, duties and limits expressly civil bringing to powers agency's the language find which statute the within the actions in Pennsylvania courts. Instead Respondent must reach the tortured conclusion that the negate of of this chapter" operate to violation the very function and purpose "in the words as Pennsylvania and Boat Commission ("PFBC") Fish set forth in 2506(a). 1

5 Chapter 2506 within Part II "Fish and Fishing" of Pennsylvania Title 30, is a chapter as the and Boat Code." Chapter One known "Fish statute includes among of the definitions, and is defined which Pennsylvania Fish as Boat Commission "Commission," them, "The of the of the Pa.C.S. Petitioner Agency is an independent agency § 102. The Commonwealth." 30 of Policy their protestations, Respondent cannot negate the Declaration Commonwealth. Despite subsection (a) which confers standing upon the Commonwealth without limitation in its through authorized (a distinction the PFBC is clearly given both statutorily and by delegation) agencies any bring against any person who kills action fish. Respondents make the incredible to a civil that subsection (a) does not confer standing claim the Petitioner Agency, an agency upon of the manage whose statutory purpose is to Commonwealth, control, stated and perpetuate regulate, the Commonwealth's fish. In attempting to discount the plain language conferring standing upon the Pa. c.s. § 2506(a), the Commonwealth's "In 30 authorized in 2506(a), Respondent states agency through General that it would identify, stated other enactments, Assembly Pennsylvania tYpes therein." described actions Respondents' of damage the to agencies' 'authorized bring at 12. A reading Brief that is finds no such pronouncement, there of no language subsection other stating Assembly will identify, through General enactments" these authorized agencies "the contrary, the To imagination. creative of Respondents a figment simply such and language is (a) subsection gives the Commonwealth standing, through its authorized agencies, of2506 of which the PFBC is clearly identified in corresponding 2506(b). To follow Respondents logic, we must carve out an exception and provide that only the action" "Commonwealth" power to bring "any civil the seeking redress for the killing has of the Agency Commonwealth's under 2506(a) and the Petitioner fish PFBC may only bring civil 2

6 actions for killing of the Commonwealth's fish when in violation of the Commonwealth's the under 2506(b), the fact that the Petitioner Agency is the designated agency referred laws despite This clearly logic withholds from the PFBC the powers and duties so subsection(a). to in twisted and "to control 2S06(b). manage regulate, perpetuate fish." to conveyed it, l statutes, Respondents and misapply case law, misstate and portions of B. misconstrue, Complaint Petitioners make of misstatements in support Respondents its specious argument which numerou::; addressed are as follows: that argue the Petitioner Respondents acknowledges that the Circuit Court (1) "implicitly deciding on 30 Pa.C.S. § 2506(b) in 7. the question." Response Brief at focused correctly that made such implication, in fact, the heart of Petitioner's Petitioner was no the Court argument incorrectly relied exclusively upon 2506(b) to the exclusion of the standing conferred by 2506( a). Brief at 11. Petitioner's to Respondents that "the Commission sought assert pursue a civil suit for erroneously (2) Act." on alleged violation of the West Virginia Water Pollution Control based damages Respondents' at 8. As Resporidents know, Petitioner's Complaint asserts causes of action Brief the for strict law of negligence, common claims liability and nuisance. Respondents trespass, lost this argument when the matter was remanded to state court by the Frederick Honorable Stamp, causes that Petitioners were not preempted from bringing who law agreed of common action against the Respondents in West Virginia state court. the ... " it states, when arguments mischaracterize Petitioner's (3) Respondents have argues the lower Commission should that disregarded the limiting language court of 30 bring Pa.C.S. (b) and upheld its standing to § 2506 this action." Respondents do not cite to 3

7 Petitioner's brief making this assertion because Petitioner's brief contains no such when limiting does that the statute contains agree language, in fact one of not assertion. Petitioner Respondents is that relied upon so heavily by language does not restrict argument the Petitioner's power to bring this civil action. Petitioner's the at 3,4, agency's Brief 12, 16, 21. 11, and Pa.C.S. assert the Petitioner Respondents 30 that § 2506(b) when stating the (4) cites for standing in the Complaint. In actuality, the only citation in basis 7 Paragraph of the is to 30 Complaint Pa. (a) without citation to either subsection additional or (b). 2506 the § Moreover, 7 quotes the language while Paragraph subsection (b), it has always been of argument that subsection (b) Petitioners not limit standing does of PFBC and standing is the set/orth referenced conferred via subsection (a), the specifically o/which is also and language 70/the Complaint, a detail Respondents fail to acknowledge. within Paragraph (5) Respondents most outlandish arguments are found in their attempts to discredit the assert (a) 2506(a) wherein Respondents of that even if subsection clear standing language Brief at against for the lawsuit provide Respondents. Respondents' it would a basis applied, not Citing to the'language within subsection (a) that civil actions may be brought against a 13. who has caused the killing person fish "pollution or littering," Respondents make the of by erroneous claim that patently did not assert that Consol caused the fish kill as a result Petitioners of pollution. While Petitioner that the definition agrees "pollution" the statute is "any substance, of in destructive or poisonous to fish, deleterious, be turned into or allowed to run, flow, wash or be to emptied into any waters within or bordering on Commonwealth." 30 Pa. C.S. § 2504 this (emphasis added), Petitioner strongly disagrees with Respondents' claim that no such allegations Petitioners were in the Complaint. In fact, made Complaint alleges that Consol discharged 4

8 "water containing into the West Virginia portion of Dunkard Creek, a creek that pollutants" between Pennsylvania West Virginia along the border between the states and that meanders and discharges were to the Commonwealth's fish (insomuch as killing fish destructive these polluting is replete with descriptions Complaint the is destructive, and dying fish, fish attempting of dead fish aquatic breath, life with inflamed gills and ruptured blood vessels, gulping air and and to the rolling See Complaint in water). 11, [Appendix at 141-143] . ~ ~ 16,21 Petitioners Complaint alleges that, " these discharges caused significant Moreover, offish the the Pennsy/vaniaportion of in creek to be killed as a direct result of Con sol's numbers discharges." See Complaint 16, 35-40,43-44,50-53,62-67 and 69 [Appendix at 11, 20-33, ~ ~ scenario fits 142-149]. into the definition This squarely pollutant being allowed to "run, ofa wash or be emptied into any waters within flow, bordering on this Commonwealth" as the or Respondent the waters knows, Dunkard West flow from the area of discharge in of Creek into Virginia Pennsylvania befote flowing back into West Virginia. See Complaint and ~ 26 [Appendix at Moreover, Petitioner's Complaint clearly asserts that the discharges 143-144]. of pollutants life caused significant impact to aquatic sections of Dunkard Creek to harmful the the Commonwealth situated in Id. Simply put, the tortious pollution was Pennsylvania. of of West Virginia and damaged not only West discharged resources but those in Virginia's natural the Respondents should not be permitted to escape liability because the Commonwealth. state, of a neighboring as if it were a they also discharged pollutants into the confines flowed I getaway free zone. 1 Respondents cite to the Consent Decree entered into with the EPA, which has no bearing on the issue of Petitioner's standing which does reinforce that Respondents tacitly admit the discharge of pollutants into but have Creek thousands of fish and aquatic life, Dunkard accepted responsibility for paid for West Virginia's killed natural resources and have built any an to limit and control plant further discharges of harmful chloride osmosis into Dunkard Creek. (Respondents not brief 2, footnote 2). Why Respondents have at paid for the carnage in the 5

9 (6) Respondents and seek to distinguish cases cited by Petitioner on the also criticize PFBC of the in particular. This narrow view cited not address standing the do basis cases that when of the cited cases, namely that the most important consideration import the misses standing determining agency is what functions, duties and responsibilities the Legislature of an a litigant invested agency, as an statutorily has "[a]n implicit power to be the in has agency v. touching upon its concerns." Commonwealth, Pa. Game Commission matters Dept. of Environmental Resources, 521 Pa. 121, 127,555 A.2d 812, 815 Commonwealth, This (1989). note because an agency is not limited to the express powers granted is important to powers but endowed with additional other are by necessary implication, including by statute which are necessary to effectuate the agency's purpose. Commonwealth v. Beam, 567 Pa. those 500, A.2d 357, 362 (2002). 788 492, The type litigation the agency was pursuing in the Ganle Commission case is not as of of an agency to directive in how Courts should determine the standing important as the Court's be a litigant, is to determine first and foremost the function of an agency. The function of which the PFBC, by the Pennsylvania Legislature in drafting stated Fish and Boat Code, is to the as control, manage and perpetuate the Commonwealth's fish. 30 Pa.C.S. 2506(b). regulate, the has Therefore, standing to be a litigant in matters touching upon those interests, such PFBC the when as in a neighboring state pollutes a creek and an pollutants kill not only fish actor in the neighboring state but the Commonwealth's fish who swim in the same water, separated only by a man made unknown and unrecognized by fish and wildlife. boundary 14,312 attempt distinguish Respondents' v Kassab 11 Pa. Commw. to A.2d 86 Payne (Pa. Commw. Ct. 1973) is equally unmoving. Respondents focus on the fact that Article I, Petitioner Commonwealth's of Dunkard Creek remains an open question. See Appendix 124, portion agency's delegation request and Petitioner agency's recitation of attempted negotiations. 6

10 Section 27 the Pennsylvania Constitution references the public trust doctrine and its of of public natural resources of Pennsylvania. Respondents' Brief to the application management protecting, As PFBC is doing just that: well know, preserving and attempting 9. at Respondents the fish to maintain Commonwealth. Section I, the 27 is fully engaged when those of Article in threatened, by an actor engaging are polluting acts within the resources whether or one who stands just meters from the border, dumping deleterious chemicals Commonwealth of the common law of that into in violation the to flow into the Commonwealth, creek state, leaving neighboring a trail put, and in its death Simply destruction the public trust of path. 27 I, Section, of public natural resources in Article is not management the doctrine and laws, other real but a rare states of violations when by those threatened are resources suspended as evidenced by the fish occurrence ~ll of Dunkard Creek in 2009. (2) REPLY RESPONDENTS' ARGUMENTS AS TO THE REGARDING AUTHORITY GRANTED THE PETITIONER AGENCY BY LITIGATION TO VNIA GENERAL PENNSYL ATTORNEY THE its plain language and A. express language of the delegation letter, the By the General delegated to the Petitioner agency its standing to bring the Attorney West action seeking redress for the killing of Pennsylvania fish Virginia the Petitioners Respondents arguments concerning to delegation by the Attorney reply General by reaffirming first that Petitioner's position is that standing to bring the within civil actions is clearly within the Fish and Boat Code and delegation by the Attorney provided bring General necessary to confer standing to not this action. Nonetheless, the delegation by was the Attorney General, the chief litigation authority in the Commonwealth, was for the PFBC to of standin stead in pursuit of damages relating to the killing his the Commonwealth's fish in Dunkard Creek in September 2009. 7

11 Respondents fail grasp the import of the cases cited by the Petitioner in support of this to delegation affords so Respondents claim that the as no greater powers than much argument, in within confines provided the those Fish and Boat Act as the cases cited clearly underline of the any b.ring any action in jurisdiction, Commonwealth courts or to standing General's Attorney the The United States Supreme Court has noted the public concerns which may form the otherwise. for state, by the basis as a representative a suit the of Pennsylvania v. West Virginia, public. See (1923)(original 553,43 U.S. 67 L.Ed. 1117 S.Ct. jurisdiction)(suit to enjoin West 262 658, gas Natural off supply ofQ.atural consumers to Pennsylvania. gas cutting Virginia from are of the State's population. Their health, comfort and welfare a substantial "constitute portion from of gas the interstate streanl. This is a threatened withdrawal seriously the by jeopardized an of grave public concern in which the state, as the representative of the public, has matter interest from that apart a remote the It is not merely affected. or ethical interests of individuals one which is immediate and recognized by law.") Id at 592. This same public interest in but preserving the natural resources from harm supports standing both for the Commonwealth's delegate, General, the PFBC as its chosen Attorney to bring the underlying civil action. and to powers litigation his of to all delegated General'has Attorney the Herein PFBC the the within action, powers which the Act defines as "any action brought by or against the bring or agencies." its Commonwealth P.S. § 204(c). Moreover, the Attorney General may, "upon 71 of the Commonwealth, efficient or otherwise is in the best interest determining that is it more or authorize General Counsel or the counsel for an independent agency to initiate, conduct the of litigation in his stead." Id. any defend particular litigation or category 8

12 CONCLUSION AND FOR RELIEF PRAYER Respondents is fatally to the Petitioners Brief Response flawed and fails to Brief in distinguish the case law supporting Petitioner's position that standing properly to the is conferred Petitioner via agency of the Pennsylvania as (b), 30 well 2506 Article I, Section 27 Pa. (a) and as Constitution and through the delegation from the Pennsylvania Attorney General. Petitioner granting respectfully the trial court order that Respondents' Motion to Dismiss be requests reversed and the matter remanded to the Circuit Court . . OF PENNSYLVANIA, COMMONWEALTH PENNSYLVANIA FISH AND BOAT COMMISSION, BY COUNSEL, Shaf01{~ ~ . Robert P. Fitzsimmons (W.V.Bar #1212) 9

13 IN THE COURT OF APPEALS OF WEST VIRGINIA SUPREME No. 13-0885 Docket Commonwealth Pennsylvania, of Pennsylvania Fish & Boat Commission, PetitionerslPlaintiffs Below, a fmal Appeal from order of the Circuit Court Monongalia County (No. 11-C-556) of Vs. Consol Inc., Consolidation Coal Energy, Company, Defendants BelowlRespondents. CERTIFICATE OF SERVICE th on this 6 I hereby certify of January, 2014, that a true and correct copy of the day US Petitioner's Reply Brief has been served on the following counsel of record via foregoing First Mail, as follows: Class Christopher B. Power, Esquire P. Esquire Fitzsimmons, Robert Fitzsimmons & LLP Dinsmore The Shohl, Firm Law 600 Suite 900 Lee Street, W arwood 1609 Avenue Charleston, WV 25301 Wheeling, WV 26003 Co-Counsel for Commonwealth of and for Consol Energy, Inc. Counsel Pennsylvania, Fish & Boat Consolidation Coal Pennsylvania Company Commission COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA FISH AND BOAT COMMISSION, BY COUNSEL, 51~1Q9- ~n~. Bar #9286) Robert P. Fitzsimmons (W.V. Bar #1212) 1097607 6050.0001

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