Natural Resources Industry

Experience

Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991)

Assisted lead counsel in case against Governor where Fourth Circuit held state trespass statute unconstitutional and preempted. Also assisted in successful claim for attorney fees of $850,000.

Progressive Minerals, Inc. v. Muhammad Haroon Rashid, et al., Civ. Action No. 5:07 CV 108, 2009 U.S. Dist. LEXIS 90437 (N.D. WV 2009)

The Court found in the favor of the firm's client, Progressive Minerals, Inc., in a tort action alleging that the defendants defrauded the client in a mineral transaction in West Virginia.

Represented Coal Company in Acquisition of Mines

Dinsmore, led by Tom Rubenstein and Jason Sims, represented Coronado in a $420 million transaction that included 14 other attorneys from various practice groups within the firm. In the transaction, Coronado acquired the Buchanan Mine Complex in Southwest Virginia along with the idled Amonate Complex and additional undeveloped metallurgical coal reserves in Southwest Virginia and Pennsylvania from CONSOL Energy, Inc.

Dinsmore acted as lead counsel in the transaction and was responsible for nearly all legal issues concerning the transaction, including advising the client on environmental, tax, labor and employment, employee benefits and real estate issues.

This particular coal transaction involved complex issues because CONSOL Energy retained rights to the natural gas on these properties, which required Dinsmore to assist Coronado in the negotiation of cooperation agreements related to the properties and advising Coronado on the proper structure for the transaction based on the continuing relationship that will exist between Coronado and CONSOL Energy after the consummation of the transaction.

Coronado significantly increased its capacity with this acquisition and now has an enhanced position in the markets it serves with a greater ability to serve its customers and increase its overall sales.

Negotiation of Global Settlement in Environmental Law Matter

We represented a coal company under federal investigation by the United States Department of Justice and the EPA for felony violations of the Clean Water Act. After completion of an internal investigation and meetings with and presentations to United States Department of Justice and EPA officials, we negotiated a favorable global resolution of all criminal, civil and administrative issues that included a plea agreement to misdemeanors, a compliance agreement with the United States and no debarment of the company.

Advice regarding Establishment and Operation of Natural Gas utility (Gas/Water/Sewage)

We are currently assisting a large, municipal water and sewage utility in Kentucky with respect to its plans to enter the natural gas business in order to spur economic development in the region. We are advising the client on all aspects on the statutory and regulatory issues implicated by this new venture, as well as the related issues implicated by its status as a municipal instrumentality. In addition to helping the client navigate these issues, we have also been retained to assist with negotiations regarding gas purchase agreements, transmission and distribution issues, eminent domain issues, and all aspects of the project – “from A to Z” - that will help them secure the supply of gas and deliver it to customers.

Acquisition of surface mine, deep mine, coal reserves, coal leases and mining permits

We served as deal counsel for a coal producing company in its acquisition of a deep mine and substantial coal reserves, together with a surface mine, coal and surface leases, and mining permits, for a total value of approximately $25 million. The transaction included a unique financing structure involving the acquisition of certain reserves and a leasing arrangement with third party landholding companies, as well as important labor considerations resulting from certain obligations of the Seller to the UMWA. We helped negotiate and drafted all of the documents necessary to facilitate the deal, and handled all aspects of the due diligence review including labor issues. We counseled the client through the successful closing and execution of the purchase, which will allow the client to expand its mining operations in the Appalachian coal fields.

Acquisition of Coal Mining Operation Assets

We served as transaction counsel to Coronado Coal II LLC in an approximately $174 million transaction involving the acquisition of the coal mining operation assets of Cliffs Logan County Coal, LLC from Cliffs Natural Resources, Inc. The assets involved in the transaction were active underground and surface mines with metallurgical and thermal reserves, preparation and loading facilities and related infrastructure. We advised the client at each step of the transaction, including the initial offer and proposed letter of intent, due diligence, negotiating the purchase agreement, transition services agreement, permit operating agreement and certain third party agreements and efficiently executing the closing of the sale. The transaction, was the firm's fourth coal asset acquisition for this client and the entities associated with it since 2012.

Enforce Property Rights Against Natural Gas Transmission Pipeline Operator

We successfully litigated (2010-2013) and obtained a summary judgment order compelling a natural gas transmission pipeline operator to implement and pay for mitigation measures so that client could mine its coal, as well as defeating the natural gas transmission pipeline operator’s claims based on property rights, eminent domain, and adverse possession.

Asset purchase of idled metallurgical coal mine

We served as counsel to a coal company in the $4 million asset purchase of an idled metallurgical coal mine in southern West Virginia. We counseled the client through every phase of the transaction, from pre-transaction planning and due diligence to drafting the purchase documents to handling the closing. As part of the transaction, we also advised the client regarding the purchase of associated leases of reserves and permits, as well as certain equipment and related assets.

Rate Cases

Client: Electric Utility

We represented a Generation & Transmission (G&T) electric utility in two rate cases. Our representation commenced while the utility was in difficult financial straits, and through our efforts, we helped the utility secure sufficient revenues to ensure its continued viability and the continued provision of safe, reliable, and reasonable service to its customers. Throughout this representation, we interfaced heavily with the staff at the Kentucky Public Service Commission and other stakeholders in the litigation.

Murphy v. Kanawha River Terminals, et al.

A young woman was killed when an empty coal truck braked suddenly and jackknifed across the center line of a two-lane highway. The plaintiff brought suit not only against the coal truck driver and the trucking company, but also the coal company whose coal the truck had been transporting that day and the coal terminal that had received the coal. The plaintiff alleged that the defendants were engaged in a civil conspiracy in that the coal company routinely loaded the coal truck over the legal weight, which loads were routinely received and accepted by the coal terminal. The causal theory was that the coal truck driver inflated his tires to account for the illegally heavy loads when full, which resulted in tires that were "overinflated" when the truck was empty, which in turn made the coal truck susceptible to jackknifing in hard braking situations. Extensive testing disproved the causation theory of the plaintiff's expert, and the case settled during jury selection.

West Virginia Flood Litigation

Thousands of individuals in Southern West Virginia filed property damage and personal injury claims in numerous courts alleging damages following a major storm in July 2001 that caused flooding throughout the state. The plaintiffs contend that the flooding was caused, at least in part, by the activities of coal mining, timbering, and other companies whose work requires alteration of the terrain. After referral to the West Virginia Mass Litigation Panel, and after certified questions were answered by the West Virginia Supreme Court of Appeals, the first of what are projected to be many trials commenced in March 2006. We settled all claims against our clients in all watersheds after a seven week trial, which will ultimately result in significant savings to the clients since the litigation is likely to continue for many years.

Loan Closing and Due Diligence

Our firm completed the loan closing on a $185,000,000 loan to finance Phase I of the NedPower Mount Storm Wind Energy Project, which included a multi-faceted review of a complex transaction, as well as environmental and real estate due diligence for the lenders.  The project involved analysis of real estate, environmental and risk management issues and document negotiation and review in the finance and developing of an 82 turbine wind energy project.

Lead Counsel in Leasing Transaction for Marcellus Shale Rights

We served as lead counsel for agent of landowners group comprising approximately 35,000 acres that included negotiating and drafting options to lease, and ultimately leases, then negotiating and representing the landowners group at closing for the paid-up lease of Marcellus Shale rights at $4,000 per acre, resulting in an approximately $140 million transaction.

Purchase of Working Interest in Marcellus Shale Wells

We served as local West Virginia counsel for a Houston firm representing a client that purchased a working interest in 18 Marcellus Shale wells already drilled, along with a working interest in 12 additional wells yet to be drilled. We assisted with a subset of the transaction closing documents, including the memorandums of lease that document and provide notice of our client’s ownership interests. This was a multi-million dollar transaction.

Secretary of Labor, Mine Safety and Health Administration, (MSHA), v. North American Drillers, LLC, Docket Nos. LAKE 2008-2-R and LAKE 2008-98 (February 12, 2012)

The Secretary of the Labor, Mine Safety and Health Administration (MSHA) issued a citation to our client, a national drilling company. After completion of the discovery process and conducting depositions to determine the citation’s validity, the Secretary vacated the enforcement action and civil penalty. We filed a declaratory judgment action with an ALJ which was denied. We then appealed, and the Federal Mine Safety and Health Review Commission upheld the mine operator’s argument that the Commission’s jurisdiction relating to a legal challenge, issued pursuant to Section 105(d) of the Mine Act, does not terminate upon the Secretary of Labor’s vacating of a citation and civil penalty.

Commercial Litigation

Represented Central West Virginia Energy (Central Energy) in a suit against Mountain State Carbon and related companies in federal court for breach of a coal supply contract and related tort claims arising out of improper interference with Mountain State Carbon’s contractual obligations. Damages claimed exceeded $30,000,000. After the claims were dismissed for lack of jurisdiction, Central Energy pursued an appeal to the Fourth Circuit Court of Appeals, which reversed the dismissal and reinstated the claims to be resolved on the merits. The Fourth Circuit’s opinion was the first federal appellate court decision to apply the United States Supreme Court’s “nerve center” test announced in the decision of Hertz v. Friend, 130 S. Ct 1181 (2010) for determining where a corporation has its “principal place of business” for purposes of ascertaining federal court jurisdiction over claims between citizens of different states (known as diversity jurisdiction).

Secretary of Labor Mine Safety and Health Administration (MSHA) v. Oak Grove Resources, LLC. Docket No. SE 2007-194 (November 26, 2007)

This case involved, inter alia, a significant and substantial, high gravity and moderate negligence violation of 30 C.F.R. Section 75.604(b) issued by MSHA alleging that a permanent splice in the trailing cable on a shuttle car was not effectively insulated and sealed to exclude moisture.

The Administrative Law Judge (ALJ) held that the Secretary of Labor did not sustain her burden of proving the alleged violation was significant and substantial or of high gravity, and that the negligence should be reduced from moderate to low. The ALJ assessed a penalty of $250.00 for the violation.

Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, et al., 531 U.S. 57 (2000)

U.S. Supreme Court held that public policy considerations do not require courts to refuse to enforce an arbitration award ordering an employer to reinstate an employee truck driver even though he twice tested positive for drug use.  Worked with now-Chief Justice John Roberts, who was retained to do oral argument to the Supreme Court.

MHC, Inc. v. UMWA, 685 F. Supp. 1370 (E.D. KY 1988)

Early RICO case brought as result of UMWA violence. Court found that a pattern of violence requires "multiple episodes evincing a regular and ongoing course of conduct." Court held that violent acts such as murder and arson support a RICO claim and are sufficiently independent of labor law so as not to be preempted by it.

District 29, UMWA v. Royal Coal Company, 786 F.2d 588 (4Cir. 1985)

Case involved company's obligation to provide health benefits to retired and disabled miners after expiration of 1981 Wage Agreement when it ceased all active mining and did not execute 1984 Wage Agreement.

American Energy Corp. v. Charles Datkuliak, et al.

Won declaratory judgment allowing our client to mine in excess of $4 million of coal over the objection of the gas well owner/operator.  Successfully argued the case on appeal to the 7th Appellate District, and the Ohio Supreme Court refused to accept jurisdiction. 

The case set multiple precedents for gas/oil well interference with coal rights.  Despite the efforts of multiple oil/gas associations to have this decision reversed on appeal and in the Ohio Supreme Court, our client won at each stage of the procedure.

Anonymous Plaintiffs v. Large National Coal Company

Our firm represented a large national coal company in its claims for breach of contract, fraud, misrepresentation and tortious interference with contract involving multiple coal contracts and assignments of contract for coal for a power company's North Carolina generating station. A settlement was ultimately reached.

Arbitration

I am experienced in handling such matters individually as well as the chairman of multi-member panels hearing and deciding private arbitrations involving large publicly traded land holding and operating companies to smaller privately held companies addressing disputes over coal reserves, leases, contract mining agreements, and sales agreements, with amounts at stake ranging from less than $1 million to in excess of $100 million.  I am also experienced in handling other, non-coal related, commercial disputes as a former American Arbitration Association commercial panel member.

Arch Coal v. Tuco, Inc.

We were advising and assisting the client in very contentious negotiations over a price adjustment provision in a long term, high volume coal supply contract.  As it began to become apparent the negotiations were unlikely to reach a mutually acceptable conclusion, we helped formulate a strategy that resulted in a complete re-negotiation of the contract, resulting in new pricing and other significant concessions by the utility.  We filed suit on behalf of our client in the 6th Judicial District, Campbell County, Wyoming in anticipation of the filing of a claim by the Defendant utility in its own jurisdiction in Texas.  The existence of the case in Wyoming assisted in reaching a commercial resolution to the dispute on terms favorable to the client.

Big Sandy Company, L.P. v. Sidney Coal Company and Cliffs Mining

Our firm represented Big Sandy, the owner of land in Eastern Kentucky, for breach of contract and other tort claims seeking proper payment of delinquent coal royalties and seeking to terminate a long term lease for failure to pay these royalties. In a split decision, an arbitration panel ruled that, while the lease could not be terminated, Sidney Coal Company had breached the lease and ordered Sidney to pay overdue royalties to Big Sandy.

Coal Producer v. Electric Utility

I served as the Coal Producer's party-appointed arbitrator in a dispute over the propriety of a claimed force majeure under a large-volume, long-term coal supply contract, and the liability for the cost of purchasing substitute coal for coal my client did not deliver.  After prevailing on a summary judgment motion regarding some of the technical coal mining force majeure issues, the case was settled very favorably to the client.  The utility accepted the propriety of the claimed force majeure, and a major portion of the contract was renegotiated.

Coal Supplier Claims

Argued, defended and prosecuted force majeure and breach of contract cases on behalf of coal suppliers.

Corporate Merger

We developed a structure which allowed the economic benefit of certain non-assignable coal supply agreements to be realized by the new entity without breaching the anti-assignment provisions.

Corporate Reorganization and Membership Unit Sale

This transaction involved a corporate reorganization of several limited liability companies which collectively owned or controlled certain coal producing and related assets followed by the sale of all of the membership units for approximately $20,000,000 to a publicly traded company. Our firm’s experience in mergers and acquisitions, natural resources and tax matters enabled the client to maximize membership unit value and complete this transaction in an efficient and timely manner.