Tuesday, August 26, 2014

Divided DC Circuit Grants Standing to Challenge Battle of Blair Mountain Historic Preservation

In its split opinion in Sierra Club v. Jewell, a panel of the DC Circuit Court of Appeals has held that a coalition of groups have standing to challenge the revocation of listing on the National register of Historic Places for Blair Mountain Battlefield in West Virginia.

As the first paragraph of the opinion by Judge Srinivasan reminds us:

The Battle of Blair Mountain is the largest armed labor conflict in our nation’s history. Blair-1921-miners-turning-in-guns-6052-copyIn late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600-acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.

 In this case, the battle again features coal companies, but on the other side are environmental and historic preservation groups.  The registration of the Battlefield on the National Register, which would arguably prevent surface mining, was hard-fought.  One criteria is that a majority of property owners not object, but after the Battlefield was listed, "a number of objections" from a "law firm representing several coal companies" were determined not to have been counted, and the Battlefield was delisted.  It is this delisting that is being challenged.

The district judge found that the challengers did not satisfy any of the classic elements of standing.  On appeal, the majority of the panel found that the challengers satisfied all three. 

Probably most controversial is the initial requirement of "injury in fact" that is both "concrete and particularized" and "imminent."   The panel rejected the coal companies amicus argument that the challengers cannot suffer an injury in fact because they possess no "legal right to enter the Battlefield area."  It is this absence of  "legal right" that Senior Judge Sentelle, dissenting, rests his disagreement.  For the majority, however, the challengers could enjoy and observe the land from surrounding areas, including public roads: "there is no reason that the cognizability of aesthetic and associated interests in a particular site could turn on owning a legal right to enter or view the property."  Thus, their injury was sufficiently concrete and particularized.   As to the imminence of injury, while the district judge had stressed the non-use of the existing mining permits for the past decade, the appellate panel noted that in a letter objecting to the registration of the Battlefield, the coal companies stated that they had an "expectation of developing" the coal in the site.

More complicated are the questions of causation and redressibility, "two sides of the causation coin," because they involve the interplay of the federal registration requirements and West Virginia law, and specific issues regarding the initial approval of mining permits as opposed to permit renewals.  The panel stated that the challengers must only show that their argument is "non-frivolous" and not convince the court that their interpretation on the merits is correct, in order to satisfy the standing causation and redressibility requirements.

Thus, the battle of Blair Mountain will be proceeding to yet another round. 

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[image of Blair Mountain Battle via; image of West Virginia autumn colors via]

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