A federal judge on Oct. 2 rejected an effort by the Sierra Club and others related to attempts to protect the area around the historic Blair Mountain from future coal mining.
The plaintiffs in this case – including the Sierra Club and Ohio Valley Environmental Coalition – had challenged a decision by the Keeper of the National Register to remove the Blair Mountain Battlefield from the National Register of Historic Places. The matter was before the U.S. District Court for the D.C. Circuit and Judge Reggie Walton on the parties’ cross-motions for summary judgment. Walton on Oct. 2 concluded that he must grant the defendants’ motion for summary judgment and deny the plaintiffs’ motion.
This litigation is the result of a lengthy controversy surrounding the nomination of a portion of Blair Mountain, located in Logan County, W.Va., to the National Register. Spruce Fork Ridge, located on Blair Mountain, was the site of the 1921 Battle of Blair Mountain that ended an unsuccessful three-year struggle to unionize the coal miners in the region. The confrontation between union and non-union forces is considered the largest organized armed uprising in American labor history, and only ended when federal troops intervened against the coal miners that wanted to unionize.
In February 2009, the law firm Jackson Kelly filed a petition with the Keeper objecting to the nomination of the Blair Mountain Battlefield. The petition was filed on behalf of coal landholder Natural Resource Partners LP, plus coal producers Arch Coal (NYSE: ACI) and Massey Energy, each of which owns or leases most of the coal in the nomination area. Massey, by the way, was bought in June 2011 by Alpha Natural Resources (NYSE: ANR).
The plaintiffs fail, the judge ruled in part, to identify sufficient support in the administrative record for the proposition that the potential harm from future surface mining is “actual or imminent,” rather than “conjectural or hypothetical.” The plaintiffs noted that coal mining companies own property within the historic district, citing to letters in the administrative record raising objections to the National Register nomination submitted by Energy Corp. of America, Jackson Resources Co. and Robin Land Co. LLC.
As proof that these companies “fully intend to exploit their interests in the immediate future as well as in the present,” the plaintiffs pointed to a statement in the February 2009 letter from Jackson Kelly in opposition to the Battlefield’s nomination indicating that “each Petitioner owns or leases minerals, particularly coal, with the expectation of developing them in the nomination area.” As further proof of the imminence of the harm to the Battlefield, the plaintiffs cite to references in the record to surface mining permits that have already been issued for areas within the historic district.
“The most significant evidence of the lack of imminence of mining at the Blair Mountain Battlefield is contained in the report prepared by the Friends of Blair Mountain, attached to the plaintiffs’ opposition as Exhibit L,” the judge noted. “This report, dated September 8, 2010, details the threat from surface mining permits that have already been issued for portions of the Blair Mountain Battlefield or areas adjacent to the Battlefield. Out of the eleven permits that are discussed, active mining is occurring at only two sites, both of which are adjacent to the historic district. Of the remaining permits discussed in the report, two permits have expired, three are ‘active, but with no coal removed as of yet,’ three cover an area that has already been mined and is in the process of reclamation, and one is unexpired but not active. The information contained in this report belies the plaintiffs’ assertion that the issuance of surface mining permits demonstrates that mining is imminent. For example, no coal has been removed pursuant to Permit No. P072900, despite the permit’s existence since 1981. Similarly, Permit No. O505692 was issued in 1993, Permit No. S500503 was issued in 2007, and Permit No. S504991 was issued in 1995, but no action pursuant to these permits has been taken. It therefore strains credulity to conclude that the issuance of a surface mining permit alone establishes that mining is imminent, when several of the permits that were issued more than a decade ago have resulted in no harm whatsoever to the Battlefield.”
The real problem that the plaintiffs face is that the occurrence of their alleged injury depends entirely on the future actions of third parties, which would be the coal mining companies, Judge Walton wrote. “Demonstrating a sufficient injury-in-fact to confer standing thus requires that the plaintiffs produce evidence from which the future actions of the coal mining companies can be predicted with some degree of certainty, information that is, for the most part, outside of the plaintiffs’ personal knowledge,” he added.
“It is likely, therefore, that surface mining would be permitted on the Blair Mountain Battlefield as a result of permits that were acquired prior to the historic district’s inclusion on the National Register,” the judge wrote. “An order from this Court restoring the Blair Mountain Battlefield to the National Register, therefore, will not prevent mining from occurring should the coal mining companies who own existing permits choose to exercise their rights afforded by the permits. The Court having only a limited ability to redress the plaintiffs’ asserted injuries, the plaintiffs have failed to meet their burden under the final prong of the standing inquiry.”
Incidentally, the permit numbers referred to by the judge are state mining permits issued by the West Virginia Department of Environmental Protection. The “P” that begins a permit number means prospecting, an “O’ means other, like a refuse area or haul road, and “S” denotes a surface mine.
- For example, permit S500503 was issued in 2007 for the 333-acre Adkins Fork strip mine, with the permit held by Arch’s Mingo Logan Coal unit. The DEP database shows that mine as not started yet.
- And, permit S504991 is held by Mingo Logan Coal, was issued in 1995 and is for the 1,561-acre Bumbo No. 2 strip mine. The DEP database shows that mine as “active, moving coal possible,” with 91 acres of permit area disturbed by mining as of an Aug. 3 site inspection.