Maps, markers and Marsh Fork Elementary School

April 8, 2009 by Ken Ward Jr.


Photo courtesy of Coal River Mountain Watch

The nearly four-year fight over Massey Energy’s insistence on building new coal silos adjacent to a Raleigh County, W.Va., elementary school hit the state Supreme Court today. And the key question — legally at least — is pretty clear:

Maps or markers?

Joe Lovett, lawyer for Coal River Mountain Watch, wants the justices to rule that the permit area of a surface mine is outlined on the maps that mine operators submit to the state Department of Environmental Protection.

Doing so, Lovett told the court, would clearly put the second of two (and probably the first, truth be told) silos Massey wants at the site outside the permit boundary spelled out in 1982 mine maps. That, in turn, would invoke a federal and state law that prohibits all mining activities within 300 feet of a school.

Massey Energy subsidiary Goals Coal lawyer Bob McLusky — with a little help from DEP lawyer  A.M. Pollack — asked the court to rule that on-the-ground markers, not the official maps, are the real boundaries of surface mining permits.

If the the court rules that way, then both of Massey’s silos would be just fine.

So, as Lovett pointed out to the court, maybe this is the real question that the justices should ask themselves:  Should Goals Coal be permitted to conduct surface mining operations within 300 feet of an elementary school?

Just for fun, here’s the section of West Virginia’s mining law that justices are being asked to interpret:

“‘Permit area’ means the area of land indicated on the approved proposal map submitted by the operator as part of the operator’s application showing the location of perimeter markers and monuments and shall be readily identifiable by appropriate markers on the site.”

That’s W.Va. Code 22-3-3(q).

One of the two silos is already built, having been constructed before the Gazette and some citizens actually looked at the maps DEP was using to approve the permits.   Once DEP was confronted with the maps, agency officials initially revoked the permit. But they’ve since backed off, oddly enough, after Gov. Joe Manchin settled a civil rights lawsuit filed against him by Massey President Don Blankenship.

You can read the legal briefs in the Supreme Court case here,  and we’ll have more coverage in tomorrow’s Gazette.

For the record, Chief Justice Brent Benjamin recused himself from the case. Marion County Circuit Judge Fred Fox took his place.

Not for nothing, but this case doesn’t really get to the issue that has many coalfield citizens most concerned about Marsh Fork — the huge slurry impoundment that looms over the school.


6 Responses to “Maps, markers and Marsh Fork Elementary School”

  1. For the love of God…..any species that would imperil its own young in such an aggregious manner doesn’t deserve to survive. It’s pictures like these that make me ashamed to be part of the human race.

  2. Dana says:

    That’s a very old photo at the top. It doesn’t have the ring of where they started building the second silo that the lower one has.

  3. hollergirl says:

    I watched the hearing on the web. As I was listening to a Justice talk about the fact that he uses markers for his personal property, I thought, but if one of your neighbors would move your markers in the middle of the night- then you would certainly rely on maps.
    As Mr. Lovett pointed out, the markers have been moved.
    I know this is about law, but it is a shame that a company would chose to build silos this close to a school. Mr. Ward is right, the bigger issue is the sludge dam over the school.
    I am curious, Justice Benjamin recused himself, but who actually chose his replacement?

  4. Ken Ward Jr. says:

    According to Supreme Court spokeswoman Jennifer Bundy:

    Normally, the chief justice picks replacements for justices who recuse themselves. But since Benjamin IS the chief justice, the next in line picked his replace. In this instance, that was Justice Davis, who picked Judge Fox to sit on this case.

    The justices vote every year on who will be chief, and who will be “replacement chief” in case the chief is recused.


  5. […] information? Ken Ward at Coal Tattoo has it: For more background, see previous posts here, here and here, or read earlier Gazette stories, here, here, here, and here. The Supreme Court ruling is […]

  6. […] plant and just down the hollow from a huge Massey impoundment. See previous posts here, here and […]

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