June 28, 2008

Flood Litigation Revived: ; Coalfield Residents Have Right to Sue, Supreme Court Rules

By Ken Ward Jr.

Staff writer

Thousands of coalfield residents will get to continue their lawsuits over mining and timbering impacts on the July 2001 floods in Southern West Virginia, under a state Supreme Court ruling released Thursday.

Justices revived a series of lawsuits against coal operators, loggers and land companies in deciding a complicated trio of appeals. The court overturned circuit court orders that threw out one jury verdict against industry and dismissed another case before it got to trial.

"This is a very significant decision out of the court," said Stuart Calwell, a Charleston lawyer representing flood victims. "It underscores the legitimacy of a community speaking out through its jury."

Al Emch, the industry's lead lawyer, said he was very disappointed by the court's decision, which he said affects more than 120 companies - "virtually the entire coal and timber industries in Southern West Virginia."

Emch said his clients "had hoped that the very thoroughly considered and carefully reasoned decisions of these two highly experienced and respected circuit judges who had patiently struggled with this litigation for several years and understood it inside out would be upheld" or that the court "would at least provide a detailed analysis of the issues ... but the court's opinion does neither."

In one appeal, Calwell argued that Circuit Judge Arthur Recht wrongly dismissed flood lawsuits in the Coal River watershed in January 2007, before residents got to collect evidence to try to prove their case.

In the other two appeals, Calwell and Charleston lawyer Scott Segal both challenged Circuit Judge John Hutchison's decision in March 2007 to throw out the jury verdict in favor of residents in part of the Guyandotte River watershed.

The cases are part of a collection of litigation in which thousands of residents in seven counties sued land companies, coal operations and timber firms. They blamed strip mining and logging for damage to homes and property during the 2001 floods.

In the Guyandotte case, Hutchison in 2006 oversaw a trial that concerned flooding in two subwatersheds, Slab Fork and Oceana. Most of the defendants had already settled, and the trial concerned only claims against the related companies Western Pocahontas LLP and Western Pocahontas Corp.

Jurors concluded in the first phase of trial that mining and timbering increased peak storm flows and damaged residents' property. That ruling could have set the stage for a later trial concerning specific damages to residents.

But about a year after the first phase of the trial, Hutchison threw out the jury verdict. The judge decided that he should have previously disallowed testimony by two plaintiffs' experts, engineers Bruce Bell and John Morgan, and the use by plaintiffs of a state Department of Environmental Protection flood study.

Justices, though, said the DEP report authors and the plaintiffs' experts "had extensive training, education and professional experience and expertise on how land disturbance affects the flow of surface water, and when one has to recognize and address those effects so as not to cause off-site impact to one's neighbors.

"This was not a case of a befuddled jury confounded by bizarre, absurd or irrational pseudoscientific assertions," the court said.

In the Coal River case, Recht had ruled that the lawsuit "did not allege conduct, facts and circumstances that if proven would subject the defendants to liability." Recht sided with industry lawyers, turning down the residents' efforts to collect evidence from the companies to try to prove their allegations.

The justices concluded that Recht was wrong, and that the residents "are entitled to try to prove those claims" to a jury.

Calwell said the Supreme Court's decision "validates the idea that citizens living in the coalfields should have their property respected to the same extent that coal company property is respected

"This case is about property law," Calwell said. "It's the bedrock of capitalism."

The Supreme Court ruled in a 29-page unsigned opinion.

Chief Justice Elliott Maynard and Justices Robin Davis and Brent Benjamin did not take part in the case. Monongalia County Circuit Judge Russell M. Clawges Jr., Wayne County Circuit Judge Darrell Pratt and Putnam County Circuit Judge O.C. Spaulding were appointed to hear the case with Justices Larry Starcher and Joseph Albright.

Reach Ken Ward Jr. at [email protected] or 348-1702.

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