Coal Tattoo


Candidates, from left, Don Blankenship, of Williamson, Bo Copley, of Delbarton; U.S. Rep. Evan Jenkins, R-W.Va., of Huntington, West Virginia Attorney General Patrick Morrisey, of Charles Town, Jack Newbrough, of Weirton, and Tom Willis, of Martinsburg, participate in a debate in Wheeling, W.Va., Monday, April 23, 2018.  AP photo.

If you are among those who get a lot of your news from Facebook, you have probably seen a lot of people who aren’t fans of Don Blankenship calling the former Massey Energy CEO a “felon.” Heck, if you are a consumer of a lot of political news from major outlets, you probably saw the word used there a few times as well.

But the fact is that Blankenship, while he is a lot of things, is most certainly not a felon.  No, the charge he was convicted of — conspiring to violate federal mine safety and health standards — is a misdemeanor. That’s because the underlying crime he was found by a jury to have conspired to commit — violating those standards — is a misdemeanor.

The difference is important.  Not only does it mean that the most time Blankenship could have done in prison for that conviction was one year, but also it means that, really, our society considers what he did to be a minor crime.

As West Virginians go to the polls, though, it’s worth thinking about this a little bit more. Especially so since Attorney General Patrick Morrisey decided, just two days before the primary, that it was time to go after Blankenship for his criminal conviction.

Many of the questions at yesterday’s Morrisey campaign press conference focused on the sort of insider stuff that political reporting thrives on:  Why now? Was this some indication Morrisey believed Blankenship was surging in the polls? What if Blankenship wins the primary? Would Blankenship support him against Democratic Sen. Joe Manchin in the fall?

Buried in there was a question that was actually about what kind of position Attorney General Morrisey would take on a piece of legislation that’s pending in the United States Senate. Here’s the exchange:


Joe Manchin has had a bill out that would actually advance the crime from a misdemeanor to a felony of conspiring to violate mine safety and health standards. Do you support that idea?


So I actually would support a law if you knew that there was very clear intent on the part of an executive or on the part of an individual. It’s a very, very serious issue when you’re talking about conspiracy to violate mining standards or things that led to death, that I would be very open to making that a felony. But I think it’s really important to make sure that you have very clear intent in terms of the specifics of the allegation, and so I’d want to take a look at that language. But it’s clear to me that everyone must be accountable within the corporate channels.

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Mine Explosion Congress


Taft, California, is a long way from the Mingo County coalfields where Don Blankenship grew up. And Vegas is certainly a long way from Montcoal, West Virginia, where 29 coal miners died on April 5, 2010, in an explosion at a mine run by Blankenship’s old company, Massey Energy.

So maybe we should be generous and forgive the former Massey CEO and his career campaign consultants if they get a few details confused in the advertising campaign they hope will win Blankenship a seat in the U.S. Senate — or at least deny re-election to Democratic Sen. Joe Manchin, or maybe just confuse for the sake of history what happened at Upper Big Branch..

Maybe Blankenship really believes the ads. Maybe he really wants to be a Senator. Maybe he just wants to settle old scores.

Whichever the case, Blankenship and his consultants are really asking the wrong question about Upper Big Branch. If you ask the right question, the answer here — as it is with most industrial disasters — is that there is plenty of blame to go around for the 29 deaths at UBB.

The other evening, I was thinking about this as I read through the piece that the good folks at PolitiFact published about Blankenship’s ad campaign. They rated his statement — that the Obama administration’s internal review of the Mine Safety and Health Administration’s role in a deadly mine explosion was ‘fixed'” — as “pants on fire.” In the world of PolitiFact’s “Truth-O-Meter,” this means: “The statement is not accurate and makes a ridiculous claim.”

(By way of full disclosure, the PolitiFact folks are partnering with the Gazette-Mail on some fact-checking in West Virginia politics, and their piece on Blankenship credited me with “additional reporting.” All that really means is that I talked to the reporter who wrote the piece, pointed out some of the relevant public records and provided a bunch of links to previous coverage of the issues.)

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Supreme Court declines to hear Blankenship’s appeal

Mine Explosion Congress


This news just in:

The U.S. Supreme Court has declined to hear former Massey Energy CEO Don Blankenship’s criminal mine safety conviction.

Here’s the mention of the case — under the heading “CERTIORARI DENIED” — on an order list released this morning by the Court:

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What we can learn from the Blankenship appeal

Mine Explosion Congress


This morning, when I looked a the calendar to see what the day ahead would be like, I saw the date: Jan. 19. I was reminded of a Jan. 19 more than a decade ago, when the day took a terrible turn and two men working at one of Don Blankenship’s coal mines ended up dead.  I’m sure it’s another hard day for the families of Don Bragg and Elvis Hatfield. The calendar can be like that for mining families. The winter months especially are way too full of dates that mark one awful disaster or another.

Then shortly after I got to the newsroom, an email alert showed up from the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, noting a new document filed in the Blankenship appeal:

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cr-00244-1.

I clicked, called up the opinion, and hurried to scroll down to the key passage:

Defendant Donald Blankenship (“Defendant”), former chairman and chief executive officer of Massey Energy Company (“Massey”), makes four arguments related to his conviction for conspiring to violate federal mine safety laws and regulations. After careful review, we conclude the district court committed no reversible error. Accordingly, we affirm.

We’ve got a lot of changes coming our way in this country. Come tomorrow, Donald Trump will be sworn in as our President. Already in West Virginia, we’ve seen what is likely a similarly significant change. On Monday, Jim Justice stood at the Capitol and took the oath as our new governor.

As a candidate, President-elect Trump certainly talked a lot about doing away with government regulations, especially those he says were killing the coal industry. Governor Justice has promised to fight federal environmental regulations that get in the way of his industry, and says under his leadership. West Virginia will mine more coal than ever before.

There’s obviously a lot of evidence that suggests the coal revival that’s being promised is very unlikely to happen. But today’s events, and the history of what happened today back in 2006, should make us think about this from another perspective.

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Blankenship’s letter from a Taft, California, jail



Gazette-Mail file photo by Chip Ellis

Well, I guess we all knew that something like this was coming sooner or later. Don Blankenship has seldom been one to keep quiet; well, except for that time he refused to answer questions from investigators after the Upper Big Branch Mine Disaster … or that time he declined to take the stand in his own defense at his federal court criminal trial.

But Kris Maher over at the Wall Street Journal had the story this morning:

Former Massey Energy CEO Don Blankenship, who is serving a one-year sentence in federal prison for violating mine safety laws, is issuing a highly unusual personal defense this week, using a 67-page booklet to declare that he is an “American Political Prisoner.”

“The story is a little complex, and telling it from prison without a computer and without much documentation has not been easy,” Mr. Blankenship wrote. “But it is a story that Americans need to know.”

And indeed, there is a press release, in the form of this blog post — dateline “Taft, California,” where Blankenship is serving his prison sentence, as well as a .pdf file of Blankenship’s booklet now available through his website. I’ve downloaded a copy of the booklet and posted it here for safekeeping. Blankenship says he’s going to send the booklet to 250,000 people — he doesn’t say who — and explains his reasons for doing so:

This booklet is the right thing to do. It is the right thing to do because all Americans deserve a fair trial, and not one like I had. It is right to do this booklet because coal miner safety is more import-ant than political correctness. Lies about accidents and improper prosecutions are serious matters, as they prevent worker safety improvements and deprive people of their basic human rights.

We’ve seen this movie — literally — before. For example, the booklet runs through Blankenship’s theory that the Upper Big Branch disaster was caused not by poor safety practices at Massey under his watch, but by an uncontrollable flood of natural gas into the underground mine. Investigations by the U.S. Mine Safety and Health Administration, the Governors Independent Investigation Panel (the McAteer team), the state Office of Miners Health, Safety and Training, and the United Mine Workers of America all reached conclusions contrary to Blankenship’s theory.

The other thing that Blankenship goes off about is his belief that the media has ignored (covered up, I think is his term) allegations about MSHA’s role in what happened at UBB. It’s hard to buy into his part of his theory, given that his major concerns about MSHA — inaction about potential methane leaks from the look of UBB, perhaps poorly planned demands for changes in the mine’s ventilation system, and the potential that not all records about MSHA’s involvement at UBB have been made public — were all covered fairly extensively by Blankenship’s favorite news outlet.

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There’s an interesting op-ed in The New York Times today by civil rights lawyer and author Chase Madar about the use of criminal prosecutions in major public safety disasters. It mentions the Upper Big Branch Mine explosion, and the successful prosecution of former Massey CEO Don Blankenship:

The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.

Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.

Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year sentence. Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.

Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory loosening of mine safety standards in state history. While on its deregulatory binge last year, the state almost entirely rolled back aboveground chemical-tank safety standards enacted in response to the Elk River contamination disaster of 2014 – which made the water of 300,000 people undrinkable.

The general point is that criminal prosecutions won’t stop mine disasters, or water pollution, or food contamination — and that the media give far too much attention to criminal trials in these incidents, at the expense of coverage of the many failings of our civil and administrative regulatory systems that are supposed to protect the public. Attorney Madar opines:

Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now facing cuts to its $1.5 million annual budget.

A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.

OK. Now one glaring problem with this whole line of thinking is that, while telling readers that these prosecutions are little more than a “mediagenic booby prize”  that we mere news reporters fall for every time, Attorney Madar seems to be getting his information about the glaring holes in regulatory systems that aren’t explained to the public from — that’s right, the mainstream media.

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It is hard to imagine what the families of those 29 miners have been through. Think about it. Your husband or son or brother or father is snatched away — blown away really — stolen from your family in a violent underground explosion.

But it’s not like they just didn’t come home from work one day. You got a terrifying phone call. The phone call mining families have come to fear, but somehow always know could come. And then you spent a couple days in the ritual of waiting and hoping and praying that maybe, just maybe he somehow survived.

But even when that reality hits you, it’s not like you got to just bury him and grieve and try to find a way to live. There were meetings, and hearings and lawsuits. And all of the people from the media — maybe they’re just trying to do their job, but after a while having a microphone in your face gets kind of old.

And then, the CEO of the company who ran the mine that blew up got indicted. Maybe there would be justice, you thought. But then there was the trial. And it seemed like it would never end. And it was confusing — What were all the lawyers talking about up at the judge’s bench? What do all of these objections mean? Are those jurors even paying any attention to any of this?

Finally, though, there was a verdict. But even then — even then — everybody keeps talking about how none of this was really about what happened to him. What happened to all of them. It was about something else, not about what happened to those 29 miners.

Just imagine.

Today is one of those days on the coalfield calendar. Another mine disaster anniversary. There are so many of them.  Two weeks ago, it was Centralia, Illinois. March 25, 1947, 111 miners killed. Later this month, it’s Dola No. 1 in Harrison County. April 25, 1963, 22 dead. Then Federal No. 3, Everettville, W.Va., 97 miners.

Today, lots of people will talk about how they remember, how they’re praying for the families. How they’ll never forget.

I’m sure that’s all true. People do remember, and they do pray. Certainly, those families will never forget. The pain that folks like Gary and Patty Quarles must feel. I can’t imagine. They lost their son at Upper Big Branch. That never goes away. They won’t forget what happened.

But what about the rest of us? How can it be that today, of all days, there aren’t hundreds of people over in front of the Robert C. Byrd United States Courthouse for a protest or a vigil or just a quiet remembrance? Where are all those friends who care so much about our state’s coal miners now? What about the people who had a chance to speak up before all those miners died, and didn’t? What about all of us, who have a chance now to speak up, to do whatever needs to be done to make sure it doesn’t happen again?

Because while today is a day like many others on the coalfield calendar, tomorrow is a quite different sort of day.

Mine Explosion CongressDuring a hearing scheduled to start at 10 a.m., U.S. District Judge Irene C. Berger will sentence that CEO who got indicted. Don Blankenship is really a legendary sort of figure in Appalachia and the coal industry. He was once one of the region’s most powerful men. He’s still one of its richest.

Tomorrow in court, Blankenship will stand convicted by a federal jury of conspiring to willfully violate mandatory mine safety and health standards. He faces up to a year in prison and a $250,000 fine.

It’s a remarkable thing. A historic development. The CEO of one of the region’s largest coal companies was convicted of a mine safety crime after the worst mining disaster in a generation.

It’s true that Blankenship, as the defense makes clear in its recent court filings,  wasn’t charged with blowing up the mine. He wasn’t convicted of causing that explosion, of killing those 29 men.

But what Assistant U.S. Attorney Steve Ruby outlined in his sentencing memo to Judge Berger is also true:

We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it. And, sadly, we have known for a very long time that some mine operators will ignore these hard-learned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners’ blood.

Defendant knew full well the awful risks, dramatized time and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch. There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark. Yet UBB’s miners were left pleading for air. There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time. Yet black dust pervaded the mine, a calamity in the making.

There was nothing the least bit hidden or mysterious about the dangers of how Defendant chose to run UBB. They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to Defendant.

Ruby goes on to remind us about Blankenship, and provide more important context:

How does one take the measure of such a crime? Defendant was the chief executive of one of America’s largest coal companies—a multibillion-dollar behemoth with its shares traded on the New York Stock Exchange, a fleet of private aircraft, luxurious board meetings at posh resorts around the country, and vast resources to support its mining operations. He had every opportunity to run UBB safely and legally. Instead, he actively conspired to break the laws that protect coal miners’ lives. Although already fabulously wealthy by the time of the criminal conspiracy of which he stands convicted, Defendant’s greed was such that he would willfully imperil his workers’ survival to further fatten his bank account.

After the trial, some of the Blankenship jurors said that they didn’t know that conspiracy to violate mine safety standards was a misdemeanor. If that’s true, they were just following instructions from the judge — juries aren’t supposed to know potential penalties. They’re just supposed to decide guilt or innocence.

Deciding a just sentence will be up to Judge Berger. And of course, Blankenship’s appeal will be up to the 4th U.S. Circuit Court of Appeals.

Rally For CoalDeciding the potential penalties for a criminal conspiracy that puts miners at risk, though … well, that’s up to Congress. And when was the last time you heard any of West Virginia’s elected officials — either on the state or federal level — talking about the need to change that law, to make mine safety crimes felonies, and provide more serious punishments?

In Washington, our elected officials are way too busy making noise about the U.S. Environmental Protection Agency to do anything about coal-mine safety.

And in Charleston, about the only thing on the mine safety agenda has been  the coal industry bill to weaken mine rescue team requirements and some other safety mandates. Hardly anyone in the Legislature would bother to even ask decent questions about that bill, and Gov. Earl Ray Tomblin doesn’t seem to have hesitated to sign it. None of that is surprising if you remember that Gov. Tomblin’s legislative response to Upper Big Branch was not to crack down on things like coal dust or methane monitoring, but to drug test miners.

It’s hard to escape the words of the late Sen. Robert C. Byrd after the Sago Mine Disaster a decade ago:

I have seen it all before.  First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the nation depends so much, is once again forgotten until the next disaster.

Just this morning, both Sens. Joe Manchin and Shelley Moore Capito issued statements to mark the Upper Big Branch anniversary.

Sen. Manchin said:

Six years ago I grieved with the miners’ families, West Virginians and the entire nation during the hours and days after the unspeakable mining tragedy at Upper Big Branch. Today on this sad anniversary, our hearts weigh heavy as we remember the tragic Upper Big Branch Mine Disaster. Not a day goes by that I don’t think about the 29 brave West Virginia miners we lost that day, who went to work and never returned home to their loved ones. I stayed with the miners’ loved ones through moments of hope and despair in the days following the devastating tragedy and saw the unbreakable bonds of family.

No family or community should ever endure a preventable tragedy like the one at Upper Big Branch again and this day reminds us that we always must put safety first. The health and safety of our miners will always be my top priority and I have always been committed to ensuring our miners return home safely every night. Our hearts are still broken and Gayle and I join all West Virginians in honoring those miners’ memories as we grieve their loss and pray for continued strength for their families.”

Sen. Capito said:

It’s hard to believe that six years ago today 29 miners lost their lives in an explosion at the Upper Big Branch coal mine. For many West Virginians, especially those who lost loved ones and friends, the memories from that terrible day are still so fresh in our minds. My heart still aches for the families of the 29 miners whose lives were forever changed on April 5, 2010. As our state continues to heal from this tragedy, I will continue my efforts to protect our coal miners who selflessly put their lives at risk in order to provide for their families and power our state.

No real mention in there of anything either of them has done recently to try to get any sort of mine safety bill, especially one that would toughen the penalties for mine safety crimes, moving in Congress. Thinking about the families and praying for them is obviously worth doing. But trying to divorce the mine disaster completely from the Blankenship case — and especially divorcing the weak state of current criminal laws about mine safety violations — seems to be quite a disservice to the men who died and to their surviving families.

It’s like we feel compelled to remember the Upper Big Branch Mine Disaster, but it’s convenient to at the same time forget how it happened and what needs done to make sure it doesn’t happen again.

Blankenship’s politics, and looking ahead to trial


Gazette-Mail file photo by Chip Ellis

Late last week, U.S. District Judge Irene Berger denied the latest effort by former Massey Energy CEO Don Blankenship to delay his day in court, making it seem even more likely that Blankenship will face trial starting with jury selection that’s scheduled to begin Thursday.

West Virginia Public Broadcasting kicked off a new trial podcast, and the first episode — featuring our friend Howard Berkes of NPR and Charleston lawyer Mike Hissam (a former prosecutor in Booth Goodwin’s office who worked in parts of the Upper Big Branch case) — provides some great commentary to help listeners prepare for the trial.

Meanwhile, my colleague David Gutman gave Gazette-Mail readers a glimpse at the long political shadow cast by Blankenship, with this story on Sunday:

Before last year’s elections, before he was indicted, one year before he would go to trial, West Virginia Democrats warned that Don Blankenship was trying to buy the state.

“Why are out-of-state billionaires trying to buy West Virginia?” one flier from the state party blared, next to pictures of Blankenship and the Koch brothers. “Only you can stop them.”

For Blankenship, at least, there’s no proof that allegation was true, and as a political strategy, it certainly didn’t work.

There is no record of Blankenship making any political donations in West Virginia in 2014, and Republicans made unprecedented gains — winning the statehouse for the first time in eight decades and winning every available congressional seat.

But those gains were engineered, in part, by Blankenship’s longtime personal aides and political operatives, who continue to hold outsize influence in state Republican politics. And, as Blankenship faces three felonies and up to 30 years in jail in perhaps the highest profile trial in West Virginia history, he still casts a long shadow over West Virginia politics.

Blankenship’s favored policies — lower taxes, anti-union measures, pro-business legal reform and the easing of coal industry regulations — have mostly been implemented, in part because as the state has shifted toward the GOP his ex-lieutenants have been successful in helping Republican candidates get elected.

There’s more pre-trial coverage to come.

We’re still waiting for Judge Berger to rule on a variety of things, including most importantly the “motions in limine” (see here, here and here) that will decide what is and isn’t allowed as evidence in the trial. And the judge has yet to provide many details about how she plans to handle jury selection, or if the public will be able to see what goes on during that process.  Also pending in Blankenship’s latest effort to convince the judge to move the trial from Southern West Virginia.

Don Blankenship: Waiting for the trial

Mine Explosion

With just three weeks left before the Oct. 1 start of jury selection in the trial of former Massey Energy CEO Don Blankenship, the calls and emails from out-of-town journalists are on a little bit of an upswing.

National media outlets are looking for some tidbit of gossip or some shred of never-reported news that they can turn into an exclusive. All manner of freelancers and authors are hoping the local press has some inside information — Is the trial really going to go this time? When will they be done with this tiresome jury selection and get to the opening arguments? What’s the schedule for the best witnesses?

Personally, there’s part of me that would be more than happy if most of the media (and a lot other curious folks) stayed away. Of course, we want everyone to get their news from the Gazette-Mail. And it’s not that I don’t think the more-the-merrier isn’t really the case when it comes to stories about the coal industry’s real impact on West Virginia communities. But there’s a fine line where it can all become a bit of a circus. Let’s hope that isn’t what happens when Blankenship gets his day in court.

Still, there is an obvious role for the media to play. We’re supposed to inform the public about the workings of the courts and, in the process and through transparency, create more public confidence in our nation’s criminal justice system. We’re supposed to make sure that judges and prosecutors don’t abuse the rights of defendants. We’re supposed to make sure everyone in the system does their jobs.

Hopefully, the results of the media’s legal battle to overturn U.S. District Judge Irene Berger’s gag order in the Blankenship case has helped to serve those purposes. With almost all of the filings in the case now public record, we’ve been able to reveal to the public Blankenship’s argument that the case is all political, and provide readers with some preview and context for the sorts of evidence and legal arguments that will come up once the trial gets going (see here, here, here and here). And for you national media folks, yes, if you read the court filings on PACER (and we’ve been posting most of them online, linking to them in our stories, and providing anyone without a PACER account free access), there have been some fascinating new details that have come out about Blankenship and his way of running a coal company.

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Mine Explosion Congress

Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.

One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:

Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the media and interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.

The first story cited as an example of this “erroneous” reporting was a piece I wrote for the anniversary of the disaster.  It was headlined, “Upper Big Branch 5-Year Anniversary: Blankenship’s trial is focus of families,” and it says very clearly:

While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.

The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:

… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.

It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.

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Over the weekend, The New York Times published an interesting West Virginia Day offering:  A lengthy story about former Massey Energy CEO Don Blankenship. The story dug deep into the archives of various Blankenship controversies, and understandably made much about the big trial that’s coming up in October.

The story was what folks in the business call “a good read,” and obviously a lot of folks with a keen interest in all things Blankenship and in the pending criminal case (myself included) were posting the link and commenting on it through various social media outlets.

But gosh, the story got the number of counts and the potential sentence that Blankenship faces wrong, with the Times apparently being unaware of the superseding indictment that consolidated the charges into three felony counts and trimmed one year off what what was originally a 31-year maximum sentence.

Frankly, I was a little surprised that the Times did this particular piece, given that many of the same themes — especially how unusual it is in these parts for a coal CEO to be held accountable through a criminal trial — were covered in a previous piece the Times did shortly after the original indictment back in November 2014.

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Blankenship gets OK for dirt-track trip

Mine Explosion

It looks like U.S. Magistrate Judge Clarke VanDervort has approved former Massey Energy CEO Don Blankenship’s request to go to Ohio to watch his adult son’s dirt-track race. I’ve posted a copy of the order here.

Among other things, Judge VanDervort noted that U.S. Attorney Booth Goodwin — who has vigorously opposed Blankenship’s request for trips to Las Vegas — did not file an opposition to this particular travel request.

Judge: Alpha must pay Blankenship’s lawyers

Massey CEO Retires

Here’s the news, just posted by Bloomberg:

Massey Energy Co. must pay the legal expenses of former chief Donald Blankenship for his defense to federal charges stemming from the worst U.S. coal disaster in 40 years, a Delaware Chancery Court judge ruled.

Judge Andre Bouchard on Thursday granted Blankenship’s request to recover unpaid legal expenses, citing the terms of the company’s charter and its merger agreement with Alpha Natural Resources Inc.

And here’s the court ruling:


Blankenship seeks trip to Ohio dirt track race

Mine Explosion

Former Massey Energy CEO Don Blankenship wants to take another trip — but this one isn’t to Las Vegas.

In a new motion filed late yesterday in federal court in Beckley, Blankenship’s lawyers explain:

Donald L. Blankenship, through counsel, hereby moves the Court for an order permitting him to travel to Sidney, Ohio, from Friday, June 5, 2015 through Saturday, June 6, 2015, to watch his son, a professional dirt track racer, compete in the 41st Annual Dirt Late Model Dream at the nearby Eldora Speedway.

Readers will recall that last week, Blankenship’s bid for another trip “home” to Las Vegas was rejected.  The former Massey CEO is currently free on $5 million bond, pending trial on mine safety and securities crime charges. He also continues to try to delay that trial, currently scheduled for mid-July.

Some readers may also remember that Blankenship’s son, John, is — as described in the new court filing — “an accomplished professional dirt track racer.”  John Blankenship “drives the No. 23 ‘Coal’ car,” the motion notes. Don Blankenship is president of Number 23 Inc., a Kentucky corporation that apparently supports his son’s racing career.


Blankenship wants another trip to Vegas


The latest in the Don Blankenship criminal case is this new filing today, in which the former Massey CEO — free on $5 million bond pending trial — asks the court for approval for another trip to Las Vegas. The new filing says:

Mr. Blankenship respectfully requests permission to travel home to Nevada during the Memorial Day holiday, from May 23, 2015 through May 30, 2015, to attend to personal matters, including to visit a dentist and to meet with attorneys located there.

Blankenship’s proposals for travel have caused controversy in the case before, and now defense lawyers are pointing out:

Mr. Blankenship has not been home since Thanksgiving.

GOP leader pleased with UBB prosecutions

Mine Explosion Congress

There was a fascinating little line in the opening statement given today by House Education and the Workforce subcommittee Chairman Tim Walberg, R-Michigan, at a hearing where lawmakers received an update on the administration’s mine safety efforts:

Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation to make safety the number one priority. I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.

These comments come, of course, as U.S. Attorney Booth Goodwin here in West Virginia prepares for trial on the criminal charges he and Assistant U.S. Attorney Steve Ruby have pursued against former Massey Energy CEO Don Blankenship.

And, the comments — coming from a Republican subcommittee chair in Congress — are particularly interesting, given how Blankenship’s defense team has tried to portray his prosecution as nothing more than an effort by Democrats to shut down a conservative critic.

Read all about the Don Blankenship case

Mine Explosion

As we’ve done more stories (see here and here) about the legal filings in the Don Blankenship criminal case — unsealed thanks for a coalition of media organizations and our lawyers — I’ve tried to post and include links to many of those filings. But for those who want to dig in a little more, here are links to what are — at least for now — the most important filings, the various pre-trial motions filed by Blankenship’s legal team and the responses from U.S. Attorney Booth Goodwin’s office.

First, here are the original indictment and the superseding indictment. And for those who want to follow along, Blankenship’s legal team filed a helpful “Memorandum to the Court” that listed and numbered their pre-trial motions. I’ve actually posted the legal briefs in support of each motion, rather than the motions themselves, because the briefs are actually much more informative. I haven’t yet posted the defense replies to the government responses, I have added the defense replies to government responses, and but I hope to add those and other documents to this post as time permits. As you can see, several documents remain under seal, despite the 4th Circuit Court of Appeals order in our favor.

— Motion No. 1 — Motion to Disqualify This Court and All the Judges of the United States District Court for the Southern District of West Virginia.  Response from the government. Defense reply brief.

— Motion No. 2 — Motion to Revoke Order of Reference to Magistrate.  Response from the government. Defense reply brief.

— Motion No. 3 — Motion to Transfer to Another District for Trial (STILL UNDER SEAL). Response from the government. Reply brief by defense is SEALED.

— Motion No. 4 — Motion to Dismiss for Vindictive and Selective Prosecution of Donald L. Blankenship for Exercising His First Amendment Rights. Response by the government.  Defense reply brief.

— Motion No. 5 — Motion to Dismiss for Improper and Misleading Conduct before the Grand Jury (This document, number 84 on the court docket, was initially unsealed after the 4th Circuit ruling, but is no longer available on the court’s PACER system). Response by the government (STILL UNDER SEAL). Defense reply brief.

— Motion No. 6 — Motion to Dismiss Count One for Failure to State an Offense. Response by the government. Response by the government to defense MOTIONS 6-15. Defense reply brief.

Continue reading…

More on WVU, Gordon Gee and Massey Energy


It’s WVU Day up at the statehouse, so I guess we’ll be treated to a lot of “selfies” of university President E. Gordon Gee. But there’s a timely report out from West Virginia Public Broadcasting, in which someone from our state’s news media finally questions Gee about his history and relationship with Massey Energy and indicated former Massey CEO Don Blankenship.

Public Broadcasting’s Scott Finn asked Gee to comment on the four-count indictment that alleges his old friend led an effort to violate safety laws, thwart government inspections, and then lie to securities regulators and the investing public at the Upper Big Branch Mine, where 29 workers died in an April 2010 explosion (recall that Gee had not only served on Massey’s board, but on that board’s safety and environment committee — well, that is, he did, before he resigned those posts under pressure from environmental groups and Ohio State students).

Scott asked him:

Dr. Gee I know you’re not just concerned about student safety, but worker safety as well. Until you resigned from the Massey Energy Board of Directors in 2009, you served as chairman of their Safety, Environmental and Public Policy committee. In light of that, what’s your reaction to the federal indictment of former Massey CEO Don Blankenship in relation to the Upper Big Branch Mine Disaster.

Gee responded initially:

Well, you know, obviously, I think all of us who were every involved in mining in this state, and I certainly was, believe that the safety of our workers is the number one priority.

But Gee dodged any comment on the indictment, saying:

… It is probably inappropriate for me to comment on the indictment itself because I’m not engaged in it, I’m not familiar with it. I think this is a matter for the federal courts and a matter for them to resolve.

Scott pressed on, noting the findings of Davitt McAteer’s report on Upper Big Branch — that Massey Energy had a terrible safety culture, one McAteer’s team described as “the normalization of deviance,” and asked Gee:

I know you care deeply about safety, what do you think kept you and the other Massey board members from understanding the depth of the safety problems.

But here’s what else he had to say, according to the Public Broadcasting story:

“During my service on the Massey Board, that was clearly the focus on our board, was on safety and safety measures,” Gee said …

Gee said that safety was “always our number one concern” during his time on the board, and that they were “working very hard to solve the problems we had,” he said.

“These are large companies. I ran Ohio State University, which is the largest university in the country, and West Virginia University, which is one of the very large, complex institutions, and I don’t know everything that goes on there. So you have to have that sort of trusting relationship of having good people doing good things,” Gee said.

For the record, Gee was one of the named defendants in a lawsuit against Massey officials over safety conditions that were supposed to have been remedied under an earlier settlement, but — judging from the 29 dead bodies at Upper Big Branch — were not. Alpha Natural Resources, which bought Massey, settled that suit for $265 million. And U.S. Attorney Booth Goodwin had said in court records that former Massey executives and board members “may be or may become” targets in his office’s criminal investigation.

Continue reading…

MSHA cites gag order in denying UBB FOIA request

Mine Explosion Congress

Regular readers know, of course, that The Charleston Gazette and a collection of other media outlets have been challenging a gag order issued by U.S. District Judge Irene Berger blocking public access to most of the court record in the criminal case of former Massey Energy CEO Don Blankenship.

Well, now we’ve got an interesting new twist on the impacts of Judge Berger’s secrecy.

Since March 2012, I’ve been waiting for the U.S. Mine Safety and Health Administration to get around to responding to a Freedom of Information Act request I filed following the release of MSHA’s “internal review” of its own actions at the Upper Big Branch Mine, where 29 miners died in April 2010.  Among the things I was most interested in were copies of the transcripts of the interviews done by the MSHA internal review team.

Well, I got my answer … MSHA says it is withholding those records, citing “an order issued by a United States District Judge prohibiting the release of any documents in the media or any other entity regarding the facts or substances of the criminal case involving Donald L. Blankenship.”

MSHA cites Federal FOIA Exemption 7(A), which it says “protects records of information compiled for law enforcement purposes when production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.”  The agency also cited Exemtion 7(B), which it said, “permits the withholding of records or information compiled for law enforcement purposes when disclosure would deprive a person of a right to a fair trial or an impartial adjudication.”

In a similar response to another FOIA — this one seeking information about the agency’s practices regarding enforcement on the prohibition of advance notice of inspections — MSHA again cited the gag order in the Blankenship case.