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Charleston Gazette (West Virginia)

W. Va. Judge Limits Massey Energy Protesters' Legal Arguments

Ken Ward, Jr.

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)

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.

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."


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