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W. Va. Judge Limits Massey Energy Protesters' Legal Arguments
BECKLEY, W.Va. - A Raleigh County judge on Monday significantly narrowed the arguments that anti-mountaintop removal activists can make to oppose a long-term injunction against peaceful protects that shut down Massey Energy operations in Southern West Virginia.
A mountaintop removal coal mining site at Kayford Mountain, W.Va. In the controversial practice, forests are clear-cut and holes are drilled to blast apart rock, as massive machines scoop coal from the exposed seams. The rock and dirt left behind is dumped into adjacent valleys, affecting streams and waterways. (AP Photo/Jeff Gentner) Circuit Judge Robert Burnside said he would not allow the activists to argue that mountaintop removal is so damaging to the environment that it justifies their alleged trespassing onto Massey property.
And Burnside seemed to indicate he is likely to issue some sort of injunction, at least against activists who have already been cited or arrested during previous protests at Massey mines.
Burnside emphasized that the hearing would not be turned into a debate for or against mountaintop removal, and that he would keep the matter narrowly focused on whether a court order against the protests is justified.
"The question of whether mountaintop removal should continue is not for the judicial branch to decide and is not before this court," Burnside said.
Roger Forman, a lawyer for the protesters, had hoped to fight off an injunction by arguing the environmental impacts of mountaintop removal - and the failure of government agencies to stop it - leaves the activists no choice but to use civil disobedience to shut down mines and call attention to the issue.
"You can't just look on while some horrible crime occurs," Forman said. "What they are intending to do here to the environment is a criminal act."
But Burnside ruled that this defense is not allowed under West Virginia law in a civil lawsuit like the one Massey Energy subsidiaries have brought to try to halt the anti-mountaintop removal protests.
Burnside was scheduled to continue a hearing Tuesday on whether to extend two temporary restraining orders issued against the protesters in late February and early March. The two orders specifically name nine protesters and two journalists, but also attempted to outlaw protest actions by anyone else working with the named protesters. Also before Burnside is an effort by Massey to hold five people in contempt of the retraining orders.
Journalists Antrim Caskey and Chad Stevens had sought to be excluded from the court orders, arguing that an injunction would violate their First Amendment rights to report on the protests. Burnside rejected that argument, and said trespassing laws apply to reporters just as they do other citizens.
Massey lawyer Sam Brock urged Burnside to put a stop to "people just willy-nilly coming onto [Massey] property just to get their picture taken" and that the activists should not "be allowed to run roughshod over the countryside."
Forman and Bob Bastress, a West Virginia University law professor representing Stevens, said Massey is not entitled to a court injunction because the company has an adequate remedy: criminal prosecution of any activists who protest on mining sites.
They also argued that the court orders previously issued were too broad, by not applying only to specific protesters and by applying to Massey operations outside of Raleigh County.
"You can't just lump these people together and say, 'these are crazy radicals,'" Forman said.
Brock argued an injunction is justified because protest leaders have vowed not to stop their civil disobedience until mountaintop removal is halted.
"They admit they will not stop," Brock said. "They admit that being arrested will not stop them. They admit that going to jail will not stop them. They admit that having to pay fines will not stop them."
16 Comments so far
Show All"But Burnside ruled that this defense is not allowed under West Virginia law in a civil lawsuit like the one Massey Energy subsidiaries have brought to try to halt the anti-mountaintop removal protests."
Sonce the energy corporattions buy off all of the legislators and judges in WV, this situation is hardly surprising.
q
The logic behind the concept that one property owner, "the mountain top owner" who is more interested in the profits derived from the "removal" of their "mountaintop", who's 'removal' would pollute the water and homes and lives of those living at the 'foot of the removal mountain' or down stream from the 'river dump site' of the waste associated with the 'removal of the mountain top--for profit'
should result in one of two events.
The Government should force the 'mountaintop remover' to buy all of the land that will be polluted in the process, or disallow the removal.
But this is America and the law is designed to work for those who can 'make it work for them'---or 'pay the way'.
So where would those negatively effected by the 'removal process' be able to seek proper redress, if the courts are biased in the favor of those few, at the expense of the many?
I can only speak for myself here. But if I were one of the 'down streamers', the "removers" would not be able to afford 'insurance' as a result of all of the destruction that would occur on their operations, their employees would quit --in droves---because no job is worth loosing your life over. The owners of the companies would be forced to sleep in a steel lined "closet"---and travel (even to the grocery store) in armoured vehicles with large entourages of 'body guards', and they would consider at bedtime each evening that "today" 'Native Son did not find me---tomorrow however is another day. So now I lay me down to sleep, I pray that this fortress safe will keep, and tomorrow I will place my head between my knees; and kiss my ass good bye for I know that Native Son is out there seeking me---and I surely will die"........(that's what they call 'poetic license')
If your life is in danger from another's actions; and you use the legal system to "protect yourself" only to have the legal system reveal its inadequate limitations---then you would have every right to resort to whatever means to protect your life, health, property and those of your family as well. This point cannot be argued by even the most conservative or the most progressive reader. If your own life and safety are not worth risking your life and safety to protect---then save yourself and the rest of us time and effort----and commit suicide; you do not deserve to live anyway, and would best be remembered as 'worm food'.....
Good Luck America, you really need it.
Amen.
Rape Of The World~
Mother of us all
Place of our birth
How can we stand aside
And watch the rape of the wold
This the beginning of the end
This the most heinous of crimes
This the deadliest of sins
The greatest violation of all time
Mother of us all
Place of our birth
We all are witness
To the rape of the world
You’ve seen her stripped mined
You’ve heard of bombs exploded underground
You know the sun shines
Hotter than ever before
Mother of us all
Place of our birth
We all are witness
To the rape of the world
Some claim to have crowned her
A queen
With cities of concrete and steel
But there is no glory no honor
In what results
From the rape of the world
Mother of us all
Place of our birth
We all are witness
To the rape of the world
She has been clear-cut
She has been dumped on
She has been poisoned and beaten up
And we have been witness
To the rape of the world
Mother of us all
Place of our birth
How can we stand aside
And watch the rape of the world
If you look you’ll see it with your own eyes
If you listen you will hear her cries
If you care you will stand and testify
And stop the rape of the world
Stop the rape of the world
Mother of us all
Mother of us all
Mother of us all
Mother of us all
-Tracy Chapman, New Beginning
What happened to all the promises of developing clean energy? Why are we still fighting these monsters, who want to rape the planet for profit? Why are we bailing out car companies who still aren't producing clean cars and mass transit? Why is it business as usual? I thought Obama was for change. I thought I was ready to be disillusioned, but I guess not. Obama is the same old same old. But he and Michelle do make a darling couple, don't they.
Obama has decided that it's better for him personally to join the monsters instead of fighting them.
q
so.. basically, we can't put turbines on top of these mountains because its unsightly...
but, it's okay to rip the top off the entire mountain.. somehow that isn't unsightly...?
does this seem strange to anyone?
There are no rich people in their homes with a view, (or on the cape, or by the lakeshore) in that part of the state.
No backyards, no NIMBY.
This is the US where we have government by the corporations, for the corporations and of the corporations. Judge knows who paid for him.
...the activists should not "be allowed to run roughshod over the countryside."
Priceless!
Yeah, we can't have those activists runnin' around and scuffing up the place-- it causes property damage-- and soil erosion!
Now, once we finally plane down those mountains until West Virginia is as smooth and level as a billiard table, they can run from one corner of the state to the other!
· Yr Obd't Servant
Priceless, indeed.
I guess their D-11 dozers, 680 ton gross wt. haul trucks, and the millions of pounds of ANFO loaded into 30 inch diameter 100 foot deep holes is positively gentile on the countryside.
As I mentioned in a post yesterday in response to an article about British protestors who damaged a coal plant, there is a time honored legal defense in American and British law called the necessity defense. That is what the protestors in this case and in the case in Britain were trying to assert. It means that you can do something illegal, such as break into a house, if you are preventing a greater harm, if, for example, the house is on fire and you are rescuing someone inside.
The interesting and disheartening part is that while this defense is allowed to be presented in English courts, I can count on the fingers of one hand (and have a few fingers left over) the number of times that peaceful anti-war or environmental protestors have been allowed to present this argument to juries, namely, that they were trespassing to prevent great harm to the environment or to people being bombed. Prosecutors always object and judges nearly one hundred percent of the time back them up, even though this is a violation of the rights of the accused. However, in the couple of instances in which American protestors were allowed to present this defense to a jury, they were acquitted, because juries understand this common sense argument.
In this case the judge used a technicality, that this is a civil case and not a criminal one, to prevent this argument from being raised.
Yes, the "necessity defense" has led to some big victories in the UK and Ireland.
They also allow jury nullification - where the jury is basically allowed to tell the judge to go to hell.
Most notably was the Pitstop Ploughshares Case - where activists badly damaged some Iraq-bound US military planes in Shannon, Ireland. The jury acquitted them of all charges - then celebrated by retiring to the pub where they ordered twelve pints for each of the antiwar heroes.
Everyone should be made to watch this video. Everyone of these so called “mainstream” news journalists, whether they be from ABC, CBS, NBC etc. ought to be required to air this video or others like it. They won't!
Just look at what these bastard coal corporations are doing to the people and to the Earth. And President Barack Obama is in support of this? What is going on here?
Meanwhile, these poor people are without a voice in their so called “America.” Their streams, rivers and property’s are all being polluted at the expense of these corporations, who could care less about the people or the environment, as long as they’re making $$$$. Continue to pillage the Earth and F’ the people.
Mountaintop Removal Movie from iLoveMountains.org
http://www.youtube.com/watch?v=RPixjCneseE
There was a time when the media would have paid attention.
The original Strip Mine Reclaimiation Act of 1977 (which MTR somehow bypasses it's "return to approximate original contours" requirement with a loophole) was passed after a torrent of media coverage of strip mining practices that pale in impact compared to MTR.
I keep getting a lot of cynicism when I say this, but I beleive that we DO live in very different times than the 1960s and 1970's. And they aren't better times.
Yesterday, Obama, once again, praised Reagan for all that "morning in america" crap. Obama mustn't have lived in western Pennsylvania, where my Fransiscan brother made regular trips to foreclosed homes to clean up the suicides of laid-off miners and steelworkers.
Please watch this video from ilovemountains.org
http://www.youtube.com/watch?v=RPixjCneseE
It'll make you cry, get angry and get out of your chair. But before you get up, pass it on!