CAPERTON, JUDGE.
The Department of Natural Resources, Kentucky Energy and Environment Cabinet (hereinafter the "Cabinet") appeals from the denial of its motion to dismiss the complaint filed by Appellees below on grounds of sovereign and governmental immunity. The complaint alleged that the Cabinet failed to enforce surface mining laws at a nearby surface mine, thereby contributing to property damage sustained in a 2010 flood by Appellees. The complaint sought monetary damages against the Cabinet and was later amended to include an action of mandamus. After a thorough review of the parties' arguments, the record, and the applicable law, we conclude that the Cabinet is a state agency engaged in governmental functions by regulating the surface mine; accordingly, the court below erred in failing to grant the motion to dismiss all claims excluding that for mandamus.
On July 17, 2010, the Harless Creek Community of Pike County, Kentucky, experienced torrential rainfall and flooding. After resolving their property damage claims in a separate civil action against two coal companies, the Appellees filed a second civil action against mine inspector Greg Stapleton
On appeal the Cabinet presents multiple arguments
In ruling on a motion to dismiss, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true. Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007). As such, "[t]he court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky. 1977). Therefore, "the question is purely a matter of law." James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002). Accordingly, the trial court's decision will be reviewed de novo. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).
Generally, our appellate jurisdiction is restricted to final judgments. Ordinarily, an appeal from the denial of a motion to dismiss would not be permitted because it is regarded as interlocutory. Nevertheless, in Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), the Kentucky Supreme Court recognized an exception to the general rule when it stated, "that an order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment." Prater at 887. Consequently, we have jurisdiction to review the trial court's denial of a motion to dismiss in this case. At issue, KRS 350.250 states:
KRS 350.250(emphasis added).
Appellees interpret KRS 350.250 as providing them a statutory cause of action against the Cabinet for monetary damages. The Cabinet argues that while a mandamus action under KRS 350.250(1) is permissible, KRS 350.250(3) specifically states that the Cabinet's sovereign immunity is not waived. We agree based on the plain language of the statute. See Guenther v. Guenther, 379 S.W.3d 796, 799 (Ky. App. 2012) ("In interpreting a statute we adhere to the general and oft-repeated maxim that, `Our main objective is to construe the statute in accordance with its plain language and in order to effectuate the legislative intent."') (Internal citations omitted). Thus, we must ascertain whether the Cabinet was entitled to governmental immunity since KRS 350.250(3) clearly expresses that sovereign immunity is not waived by the statute.
This Court in Lisack v. Natural Resources and Environmental Protection Cabinet, 840 S.W.2d 835, 837 (Ky. App. 1992), confirmed that the Cabinet is indeed a state agency. In Prater, the Kentucky Supreme Court addressed when a state agency is entitled to immunity from suit:
Prater at 887.
If the Cabinet is entitled to governmental immunity, it would also be entitled to be free "from the burdens of defending the action, not merely ... from liability." Rowan County v. Sloas, 201 S.W .3d 469, 474 (Ky. 2006). Accordingly, the dispositive issue is whether the Cabinet was engaged in a proprietary function or a governmental function in regulating the coal mine. The parties have not argued that the Cabinet performed a proprietary function in regulating an industry, here, a coal mine. We are unaware of any basis to find that the Cabinet was engaged in a proprietary function, i.e., one that was of a sort that private persons or business might engage in for profit. Accordingly, we must conclude that the Cabinet was engaged in a governmental function, entitling the Cabinet to governmental immunity. The trial court erred in not dismissing the Appellees' complaint on all claims excluding the mandamus action provided for in KRS 350.250(1).
In light of the aforementioned, we reverse and remand this matter to the trial court for further proceedings.
THOMPSON, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
MAZE, JUDGE, CONCURRING.
I fully agree with the majority that the Appellees' claims for monetary damages against the Cabinet are barred by the doctrine of sovereign or governmental immunity. Sovereign immunity is an inherent attribute of a sovereign state that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity. Yanero v. Davis, 65 S.W.3d 510, 517 (Ky. 2001). "Governmental immunity" is the public policy, derived from the traditional doctrine of sovereign immunity, that limits imposition of tort liability on a government agency. Id. at 519. But by its express terms, the doctrine of sovereign immunity only applies to claims seeking monetary damages against a state agency. See Clevinger v. Board of Education of Pike County, 789 S.W.2d 5, 9 (Ky. 1990). The doctrine does not bar claims for injunctive or declaratory relief.
Thus, I also agree with the majority that the Appellees' mandamus claim under KRS 350.250(1) should not be dismissed. However, I express no opinion whether the Appellees have stated any grounds for such relief. Indeed, the Appellees did not request injunctive relief or a writ of mandamus until they filed their First Amended Complaint, and that Complaint only generally requests "[i]njunctive relief either in the form of writ of mandamus or other injunctive relief requiring [the Cabinet] to take immediate corrective action to remedy the prior lack of enforcement and cause the mining site to be properly reclaimed and stabilized so as not to pose an imminent threat to Plaintiffs." Upon remand, the trial court must determine whether the Appellees are entitled to such relief.
First, as to the jurisdictional arguments, we direct the Cabinet's attention to Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617, 622 (Ky. 2011), wherein the Kentucky Supreme Court explained:
In light of Forte, the trial court could properly determine whether it had jurisdiction over Appellees' claims and did not err in so doing.
Second, we agree that KRS 446.070 does not constitute a broad waiver of sovereign immunity. In Clevinger v. Board of Educ. of Pike County, 789 S.W.2d 5, 9 (Ky. 1990), the Kentucky Supreme Court intimated same, stating: "Also affirmed is the trial court's dismissal of damages sought under KRS 446.070 and for alleged violations of state constitutional rights. The doctrine of sovereign immunity protects the board from liability for such claims." Clevinger at 9 citing Smiley v. Hart County Board of Education 518 S.W.2d 785 (Ky. 1975).