No. 28478 - DK Excavating, Inc. v. Michael Miano, Director, West Virginia
Division of Environmental Protection
Maynard, Justice, dissenting:
I would affirm the circuit court's order which ruled that DK Excavating is not
required to obtain a surface mining permit under the facts of this case.
The circuit court was correct in holding that DK's proposal to excavate,
remove, and sell coal from its two-acre site does not come within the definition of surface
mining, based upon the express exemption in W.Va. Code § 22-3-3(u)(2)(ii) (1997), of
[c]oal extraction authorized as an incidental part of development of land for commercial,
residential, industrial, or civic use[.] Unlike the majority, I am not convinced that this
provision is automatically preempted by SMCRA.
The removal of the coal in question is de minimis. It concerns a small area and
is incidental to the construction of an equipment shop. In light of these facts, I see no reason
to make this a federal question.
Accordingly, I respectfully dissent.