PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JO D. MOLINARY, Trustee of the
Susan Pruitt Cloud Land Trust,
Plaintiff-Appellee,

v.

POWELL MOUNTAIN COAL COMPANY,
                                                          No. 96-1728
INCORPORATED, d/b/a Wax Coal
Company,
Defendant-Appellant.

NATIONAL MINING ASSOCIATION;
UNITED STATES OF AMERICA,
Amici Curiae.

JO D. MOLINARY, Trustee of the
Susan Pruitt Cloud Land Trust,
Plaintiff-Appellant,

v.

POWELL MOUNTAIN COAL COMPANY,
                                                          No. 96-1797
INCORPORATED, d/b/a Wax Coal
Company,
Defendant-Appellee.

NATIONAL MINING ASSOCIATION;
UNITED STATES OF AMERICA,
Amici Curiae.

Appeals from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

Samuel G. Wilson, Chief District Judge.

(CA-91-7-B)
Argued: June 3, 1997

Decided: September 11, 1997

Before WILKINS, NIEMEYER, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by published opinion.
Judge Hamilton wrote the opinion, in which Judge Wilkins and Judge
Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: Stephen McQuiston Hodges, PENN, STUART &
ESKRIDGE, Abingdon, Virginia, for Appellant. Ethan Gregory
Shenkman, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus Curiae United States. Walton Davis Morris, Jr., Charlottes-
ville, Virginia, for Appellee. ON BRIEF: Timothy W. Gresham,
PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Appellant.
Daniel R. Bieger, COPELAND, MOLINARY & BIEGER, Abingdon,
Virginia, for Appellee. Lois J. Schiffer, Assistant Attorney General,
John T. Stahr, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Amicus Curiae United States. Harold P. Quinn, Jr.,
NATIONAL MINING ASSOCIATION, Washington, D.C., for
Amicus Curiae National Mining.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

In this appeal, we consider whether § 520(f) of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.
§ 1270(f), provides a federal cause of action for the recovery of dam-

                    2
ages resulting from violation of state regulations that are a part of the
state's surface coal mining and reclamation regulatory program
approved by the United States Secretary of the Interior pursuant to
§ 503 of SMCRA, 30 U.S.C. § 1253. We hold that it does.

I.

In this suit, Jo D. Molinary represents a class of persons, known as
the "Pruitt heirs" (Pruitt Heirs), who own more than a 99% undivided
interest in the surface estate of a fifty-acre tract of land located in Lee
County, Virginia (the Pruitt Tract). The Powell Mountain Coal Com-
pany (Powell Mountain) owns an approximate .14% undivided inter-
est in the surface estate of the Pruitt Tract and, under an 1887 deed,
owns a 100% interest in the mineral rights of the Pruitt Tract. The
Pruitt Tract is rural, mountainous, and has little economic value apart
from its timber and mineral rights. The Pruitt Heirs use it primarily
for recreational purposes such as hunting and hiking. Prior to Con-
gress' enactment of SMCRA in 1977, a three-acre portion of the
Pruitt Tract was strip mined for coal by parties unrelated to Powell
Mountain (the Three Acre Tract). The strip mining left a bench and
a high wall on the Three Acre Tract that had not been reclaimed
except by nature.

In February 1990, Powell Mountain submitted a permit application
to the Division of Mined Land Reclamation for the Commonwealth
of Virginia (the DMLR), seeking permission to auger mine1 the Three
Acre Tract for coal that still remained. In its permit application, Pow-
ell Mountain listed itself and the "Pruitt Heirs" as cosurface owners,
but did not list each heir by name. Powell Mountain listed itself as the
sole owner of the mineral rights. Powell Mountain also informed the
DMLR orally that it had obtained a legal opinion that no lease to
extract the coal by the auger mining method was required from the
other owners of the surface estate. Without further submissions from
Powell Mountain, the DMLR issued the permit. Powell Mountain
then extracted 4423.51 tons of coal from the Three Acre Tract by the
auger mining method. Powell Mountain sold the coal for
$190,122.46, clearing $35,909.05 in net income.
_________________________________________________________________
1 Auger mining is a method of surface mining whereby a large mechan-
ical screw penetrates a coal seam and turns to extract the coal.

                     3
After receiving complaints about the permit's issuance, the DMLR
determined that Powell Mountain's permit application did not comply
with certain state permitting regulations. Specifically, the DMLR
determined that the permit application: (1) failed to list the name and
address of all record owners as required by Virginia Regulation
§ 480-03-19.778.13(e) and (2) failed to contain either (a) written con-
sent of the surface owners to extract the coal by surface mining, (b)
a copy of a conveyance that expressly granted it the right to extract
coal by surface mining, or (c) documentation that under applicable
state law, it had the legal authority to extract the coal by surface min-
ing as required by Virginia Regulation § 480-03-19.778.15(b). As a
result, the DMLR revoked Powell Mountain's permit, issued a cessa-
tion order, and ordered Powell Mountain to reclaim the Three Acre
Tract.

Subsequently, this class action was filed in the United States Dis-
trict Court for the Western District of Virginia under SMCRA's citi-
zen suit provision, § 520(f) of SMCRA. See 30 U.S.C. § 1270(f).
Section 520(f) of SMCRA provides that "[a]ny person who is injured
in his person or property through the violation by any operator of any
rule, regulation, order, or permit issued pursuant to [SMCRA] may
bring an action for damages (including reasonable attorney and expert
witness fees) . . . ." Id. Relevant to the issues before us, the Pruitt
Heirs alleged that Powell Mountain's failure to comply with Virginia
Regulations §§ 480-03-19.778.13(e) and 480-03-19.778.15(b) proxi-
mately caused the improper issuance of the permit, which in turn
resulted in the auger mining of the Three Acre Tract without their
consent.2 The parties later stipulated the total value of the surface
mining rights used by Powell Mountain to be $3,317.

Powell Mountain moved to dismiss the complaint for lack of sub-
ject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In its motion to
dismiss, Powell Mountain argued that federal courts lack subject mat-
ter jurisdiction over citizen suits in states whose regulatory and
_________________________________________________________________
2 Initially, the Pruitt Heirs also sought recovery for physical damage to
the Three Acre Tract that allegedly resulted from Powell Mountain's fail-
ure to properly reclaim it. The Pruitt Heirs later abandoned their reclama-
tion claims in favor of pursuing them through federal administrative
proceedings.

                     4
enforcement programs have been approved by the Secretary of the
Interior (the Secretary) pursuant to § 503 of SMCRA. Rejecting this
argument as inconsistent with the plain language of§ 520(f) of
SMCRA, the district court denied the motion. See Molinary v. Powell
Mountain Coal Co., Inc., 779 F. Supp. 839 (W.D. Va. 1991).

The Pruitt Heirs filed a motion for summary judgment as to liabil-
ity. See Fed. R. Civ. P. 56. Powell Mountain filed a cross motion for
summary judgment, arguing in part that proximate cause was lacking.
The district court rejected this argument and granted summary judg-
ment in favor of the Pruitt Heirs as to liability under § 520(f) of
SMCRA. The district court then conducted a jury trial on the sole
issue of whether Powell Mountain's regulatory violations were wilful,
reckless or grossly negligent. The jury, presented with a single inter-
rogatory to this effect, answered in the affirmative.

The parties agreed to submit the issues of damages, attorney's fees
and costs to the district court for determination. Subsequently, the dis-
trict court awarded the Pruitt Heirs $190,622.46 in compensatory
damages, an amount equal to the gross sales price of the coal. The
district court recognized that technically the Pruitt Heirs only suffered
a nominal sum of damages, but reasoned that awarding the much
larger sum was necessary to "discourage the kind of intentional con-
duct that occurred in the present case . . . ." (J.A. 300). The district
court also awarded the Pruitt Heirs $91,644.92 in costs and attorney's
fees. Thus, the district court entered final judgment in favor of the
Pruitt Heirs for $282,267.38.

Powell Mountain noted a timely appeal. On appeal, Powell Moun-
tain challenges: (1) the district court's denial of its motion to dismiss
for lack of subject matter jurisdiction; (2) the district court's entry of
summary judgment as to liability in favor of the Pruitt Heirs; (3) the
district court's denial of its motion for summary judgment; and (4) the
district court's award of compensatory damages as excessive. The
Pruitt Heirs noted a timely cross appeal, in which they challenge the
district court's award of attorney's fees as inadequate.

II.

Before we address Powell Mountain's challenge to the district
court's denial of its motion to dismiss for lack of subject matter juris-

                     5
diction, we briefly set forth some background information about
SMCRA and Virginia's federally approved version of SMCRA. Con-
gress enacted SMCRA in 1977 to "establish a nationwide program to
protect society and the environment from the adverse effects of sur-
face coal mining operations." 30 U.S.C. § 1202(a). Section 201 of
SMCRA, 30 U.S.C. § 1211, "creates the Office of Surface Mining
Reclamation and Enforcement (OSM), within the Department of the
Interior, and the Secretary of the Interior (Secretary) acting through
OSM, is charged with primary responsibility for administering and
implementing [SMCRA] by promulgating regulations and enforcing
its provisions." Hodel v. Virginia Surface Min. & Reclam. Ass'n, 452
U.S. 264, 268-69 (1981). See also 30 U.S.C.§§ 1211, 1224.

To achieve its goals, SMCRA relies on "a program of cooperative
federalism that allows States, within limits established by federal
minimum standards, to enact and administer their own regulatory pro-
grams, structured to meet their own particular needs." Hodel at 289.
Any state "wish[ing] to assume exclusive jurisdiction over the regula-
tion of surface coal mining and reclamation operations" on non-
federal lands within its borders must submit a proposed program to
the Secretary for approval. 30 U.S.C. § 1253(a). A state program must
include a permitting system that incorporates SMCRA's environmen-
tal protection standards and is in accordance with SMCRA's enforce-
ment and procedural requirements. See id. If a state covered by
SMCRA fails to propose or implement a satisfactory program,
SMCRA requires the Secretary to promulgate and implement a fed-
eral regulatory program for that state. See 30 U.S.C. § 1254.

In 1979, Virginia enacted the Virginia Surface Mining Control and
Reclamation Act of 1979 (VSMCRA) in part to authorize and enable
Virginia to submit, and obtain approval of, a permanent state surface
coal mining regulatory program and abandoned mine reclamation pro-
gram pursuant to SMCRA. See Va. Code Ann.§ 45.1-228. On
December 15, 1981, the Secretary approved this program. See 30
C.F.R. § 946.10. Thus, since that date, Virginia has had "exclusive
jurisdiction over the regulation" of surface coal mining and reclama-
tion within its borders. See 30 U.S.C. § 1253(a).3
_________________________________________________________________
3 Virginia is one of twenty-four so-called "primacy" states that operate
their own programs. Federally implemented programs operate in twelve
other "non-primacy" states.

                    6
VSMCRA and its regulations require a coal mining company to
obtain a permit before it conducts surface mining operations on a
given tract of land within Virginia. See Va. Code Ann. § 45.1-234;
Va. Regs. Reg. § 480-03-19.773.11(a). The information required in a
permit application is determined by VSMCRA and its accompanying
regulations. See Va. Code Ann. §§ 45.1-235 to 236 and 45.1-242; Va.
Regs. Reg. § 480-03-19.72 et seq. VSMCRA's citizen suit provision
provides that "[a]ny person who as a result of the violation by any
operator of any rule, regulation, order, or permit issued pursuant to
[VSMCRA], suffers injury to his person or property may bring an
action for damages, including reasonable attorney and expert witness
fees. Such action may be brought only in the circuit court of the
county or city in which the surface coal mining operation complained
of is located." Va. Code Ann. § 45.1-246.1.G.

III.

Powell Mountain's theory that jurisdiction is exclusive in the
courts of Virginia constitutes a facial attack on the complaint, pursu-
ant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the com-
plaint for lack of subject matter jurisdiction. To the extent that Powell
Mountain argues that the activity complained of is not cognizable
under § 502(f) of SMCRA, the motion may be treated alternatively as
one to dismiss for failure to state a claim upon which relief may be
granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). See
Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 495-96 (3d Cir.
1987). Either way, we review de novo the district court's legal con-
clusions surrounding the denial of the motion.

Title 28, U.S.C. § 1331 provides that "district courts shall have
original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States." This statutory section is a gen-
eral federal question statute, which gives district courts original juris-
diction over federally created causes of action unless a specific statute
assigns jurisdiction elsewhere. Int'l Science & Tech. Inst., Inc. v. Ina-
com Communications, Inc., 106 F.3d 1146, 1154 (4th Cir. 1997).

As previously stated, the Pruitt Heirs brought this action in the
United States District Court for the Western District of Virginia pur-

                     7
suant to SMCRA's citizen suit provision, § 520(f) of SMCRA. Sec-
tion 520(f) of SMCRA provides:

          Any person who is injured in his person or property through
          the violation by any operator of any rule, regulation, order,
          or permit issued pursuant to [SMCRA] may bring an action
          for damages (including reasonable attorney and expert wit-
          ness fees) only in the judicial district in which the surface
          coal mining operation complained of is located. Nothing in
          this subsection shall affect the rights established by or limits
          imposed under State Workmen's Compensation laws.

30 U.S.C. § 1270(f). This provision creates a federal cause of action
for the recovery of damages resulting from the violation of "any rule,
regulation, order, or permit issued pursuant to[SMCRA]." Id. The
dispute here centers on whether the statutory phrase"issued pursuant
to [SMCRA]," includes state-promulgated regulations that comprise
a federally approved state surface mining and reclamation program.
More precisely for purposes of this case, the issue is whether the Vir-
ginia regulations allegedly violated by Powell Mountain were issued
"pursuant to" SMCRA, such that the district court had subject matter
jurisdiction over the complaint under § 520(f). Powell Mountain con-
tends that the Virginia regulations were not issued pursuant to
SMCRA, while the Pruitt Heirs contend that they were. The Secre-
tary, who has submitted an amicus brief in this case, espouses the
same interpretation as the Pruitt Heirs.

Congress has not directly spoken on this precise issue through a
provision in SMCRA or its legislative history. Because Congress has
not "directly spoken to the precise question at issue," we must sustain
the Secretary's interpretation so long as it is"based on a permissible
construction of the statute." Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984).4 In determining
_________________________________________________________________
4 We find no reason to suspect that the Secretary's "interpretation does
not reflect the agency's fair and considered judgment on the matter in
question." See Auer v. Robbins, 117 S. Ct. 905, 912 (1997). Thus, the
fact that the Secretary's interpretation of the statutory language at issue
comes to us in the form of a legal brief "does not, in the circumstances
of this case, make it unworthy of deference." Id.

                    8
whether an agency's interpretation is a permissible construction of the
statute, we need not "conclude that the agency construction was the
only one it permissibly could have adopted to uphold the construc-
tion, or even the reading the court would have reached if the question
initially had arisen in a judicial proceeding." Chevron, 467 U.S. at
843 n.11. Instead, we should "accord considerable deference to the
agency's interpretation of the statute, and `we should not disturb [that
interpretation] unless it appears from the statute or its legislative his-
tory that the accommodation is not one that Congress would have
sanctioned.'" Akindemowo v. INS, 61 F.3d 282, 284 (4th Cir. 1995)
(quoting Chevron, 467 U.S. at 845). For the following reasons, we
conclude that the interpretation espoused by the Secretary is a permis-
sible construction of § 520(f) of SMCRA.

First, the language at issue is certainly broad enough to support the
Secretary's interpretation. It may reasonably be said that once the
Secretary approves a state surface coal mining and reclamation pro-
gram, the rules, regulations, orders, and permits issued under that pro-
gram are "issued," in the language of § 520(f), "pursuant to" SMCRA.

Second, creating a federal cause of action so that citizens may
redress violations of state surface coal mining and reclamation regula-
tions in federal court is consistent with Congress' goal of establishing
"a nationwide program to protect society and the environment from
the adverse effects of surface coal mining operations." 30 U.S.C.
§ 1202(a).

Third, as the Secretary points out in its amicus brief, when Con-
gress referred to permits issued by either state or federal regulatory
authorities elsewhere in SMCRA, it used the phrase,"permit issued
pursuant to this chapter." See, e.g., 30 U.S.C. §§ 1256(d)(1), 1261(b),
1272(a)(6). By contrast, when Congress intended to limit the applica-
tion of a provision to permits or orders issued pursuant to a federal
program, it did so expressly. See, e.g., 30 U.S.C. §§ 1268(e)-(f)
("permit issued pursuant to a Federal program"); 1273(b) ("permit . . .
issued by the Secretary"); 1275(a)(1) & (c) ("notice or order" issued
"pursuant to Federal Program").

Fourth and finally, as the Secretary also points out, its interpreta-
tion is consistent with the operation of § 520(a)(1) of SMCRA, which

                     9
provides for citizen suits to ensure compliance with the "provisions
of [SMCRA] or of any rule, regulation, order or permit issued pursu-
ant thereto," 30 U.S.C. § 1270(a)(1), in conjunction with the operation
of § 520(b) of SMCRA, which places limits on the initiation of such
suits. Section § 520(b)(1)(B) of SMCRA states that a suit may not be
commenced under § 520(a)(1) if "the Secretary or the State" is
already "diligently prosecuting a civil action . . . to require compli-
ance." 30 U.S.C. § 1270(b)(1)(B). Because a state would only prose-
cute a compliance action if it were a primacy state, the language of
these subsections shows that Congress contemplated that federal citi-
zen suits for compliance would be brought in primacy states. Consid-
ering that the key language in § 520(a)(1) of SMCRA is virtually
identical to the key language in § 520(f) of SMCRA, it follows that
Congress intended § 520(f) of SMCRA to provide for federal citizen
suits for damages in primacy states.

The Secretary's interpretation does not conflict, as Powell Moun-
tain suggests, with the federal grant of "exclusive regulatory jurisdic-
tion over the regulation of surface coal mining and reclamation
operations" in § 520(f) of SMCRA to states with federally approved
surface coal mining and reclamation programs. See 30 U.S.C.
§ 1253(a). Exclusive regulatory jurisdiction simply does not encom-
pass exclusive adjudicatory jurisdiction. Common sense dictates that
a government's acts in regulating a subject are distinctly different
than its acts in adjudicating a party's rights related to the subject.5

Because Congress has not specifically assigned jurisdiction over
_________________________________________________________________
5 In Haydo v. Amerikohl Mining, Inc., 830 F.2d 494 (3d Cir. 1987), the
Third Circuit refused to make this distinction. In that case, the court con-
cluded that reading the language of § 503(a) of SMCRA in conjunction
with § 520(f) of SMCRA compelled the conclusion that a state regulation
connected to a federally approved regulatory program was not "issued
pursuant to [SMCRA]," in the language of§ 520(f) of SMCRA. Id. at
497. As the district court in the present case correctly recognized, the
holding in Haydo ignores the fact that the word "exclusive" in § 503(a)
modifies the phrase "regulatory jurisdiction," and nothing more. The
Third Circuit is the only federal appellate court that has addressed the
scope of the phrase "issued pursuant to [SMCRA]," as found in § 520(f)
of SMCRA.

                     10
§ 520(f) suits elsewhere, we conclude the district court possessed sub-
ject matter jurisdiction pursuant to 28 U.S.C. § 1331. Int'l Science &
Tech. Inst., Inc., 106 F.3d at 1154. Thus, we affirm the district court's
denial of Powell Mountain's motion to dismiss.

IV.

We next address Powell Mountain's challenge to the district
court's grant of summary judgment in favor of the Pruitt Heirs.
According to Powell Mountain, summary judgment in favor of the
Pruitt Heirs was inappropriate because the evidence does not establish
proximate cause.

To prevail on a motion for summary judgment, a party must dem-
onstrate that: (1) there is no genuine issue as to any material fact; and
(2) he is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c). We review a district court's grant of summary judgment de
novo, viewing the evidence in the light most favorable to the nonmov-
ing party. See Burns v. AAF-McQuay, Inc., 96 F.3d 728, 730 (4th Cir.
1996).

The parties agree that the Pruitt Heirs cannot prevail in this action
unless they prove by a preponderance of the evidence that Powell
Mountain's failure to comply with Virginia Regulation § 480-03-
19.778.13(e), requiring the names and addresses of all surface owners
in surface mining permit application, and § 480-03-19.778.15(b),
requiring right of entry information, proximately caused the damages
they alleged (the auger mining of the Three Acre Tract without their
consent as surface owners). See 30 U.S.C.§ 1270(f) ("Any person
who is injured in his person or property through the violation by any
rule, regulation, order, or permit issued pursuant to [SMCRA] may
bring an action for damages . . . ." (emphasis added)). The parties do
not dispute that, for our purposes here, proximate cause is defined as
an "`act or omission which, in natural and continuous sequence,
unbroken by an efficient, intervening cause, produces the event, and
without which that event would not have occurred.'" Jenkins v.
Payne, 465 S.E.2d 795, 798 (Va. 1996) (quoting Beal v. Jones, 171
S.E.2d 851, 853 (Va. 1970)).

Application of the summary judgment standard here compels us to
conclude that the Pruitt Heirs were not entitled to summary judgment

                     11
on the issue of liability. The record is devoid of evidence that Powell
Mountain's failure to list all of the surface co-owners of the Pruitt
tract on its permit application and/or its failure to submit right of entry
documentation, "in natural and continuous sequence, unbroken by an
efficient intervening cause," caused the auger mining of the Three
Acre Tract without their consent. Id. Furthermore, the only evidence
in the record on this issue cuts in favor of Powell Mountain. That evi-
dence is the testimony of Bob Blackstock (Blackstock), the DMLR
permitting officer who approved the permit at issue in this case. His
testimony shows that it was the common practice of the DMLR, at all
relevant times, to approve permits for surface coal mining that did not
comply with the two regulations at issue. Specifically, with respect to
Virginia Regulation § 480-03-19.778.13(e), requiring the names and
addresses of all surface owners in the permit application, Blackstock
testified that it was "more common than not" that the DMLR
approved permits that identified surface owner heirs only by their
family name, such as was done here. With respect to§ 480-03-
19.778.15(b), requiring right of entry information in the form of either
written consent, a conveyance of the right to extract coal by surface
mining, or documentation of legal authority to extract the coal by sur-
face mining, Blackstock testified that it was the common practice of
the DMLR at the time to approve permit applications that attempted
to comply with this regulation by way of a written consent of fewer
than all surface owners. Indeed, Blackstock testified that the consent
of only one surface owner was sufficient even if more than one sur-
face owner existed.

At bottom, the practices just outlined served as an efficient inter-
vening cause, breaking the causal chain between Powell Mountain's
violation of the regulations at issue and the damage alleged by the
Pruitt Heirs. Put another way, the undisputed evidence in the record
establishes that the Pruitt Heirs suffered damage because the permit-
ting officer routinely approved permits based on incomplete permit
applications, not because the incompleteness of Powell Mountain's
permit application induced the permitting officer to approve it.

Despite the Pruitt Heirs' contention to the contrary, the fact that the
DMLR revoked the permit after it received complaints about the
incomplete nature of Powell Mountain's permit application is not evi-
dence of proximate cause. The subsequent revocation simply does not

                     12
speak to whether the incompleteness of the permit application
induced the permitting officer to issue Powell Mountain the permit in
the first place. Because there is no evidence of proximate cause in the
record, we hold the district court erred in denying Powell Mountain's
motion for summary judgment.

V.

In conclusion, we hold that the district court: (1) properly denied
Powell Mountain's motion to dismiss; (2) erroneously granted the
Pruitt Heirs' motion for summary judgment as to liability; and (3)
erroneously denied Powell Mountain's motion for summary judg-
ment. Accordingly, we: (1) affirm the district court's denial of Powell
Mountain's motion to dismiss; (2) vacate the district court's entry of
summary judgment as to liability in favor of the Pruitt Heirs; (3)
vacate the district court's final judgment; and (4) remand with instruc-
tions that the district court enter summary judgment in favor of Pow-
ell Mountain.6

AFFIRMED IN PART, VACATED IN PART, AND REMANDED
_________________________________________________________________
6 In light of our disposition, the other issues raised by Powell Moun-
tain's appeal are moot, as well as the issues raised by Pruitt Heirs' cross
appeal.

                    13
