December 4, 2008

A Hillbilly, a Judge, and a Coal Company

The opening skirmish in the court battle over mountaintop removal mining

by Peter Slavin

The Dominion - http://www.dominionpaper.ca

West Virgina has a long history of coal mining, including the largest labour insurrection in American history in 1921. Today, descendants of the Battle of Blair Mountain face different challenges: a coal industry that blows the tops off mountains and buries their homes in the rubble. Photo: Vivian Stockman

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PIGEONROOST HOLLOW, WEST VIRGINIA–Lucinda Weekley grew up in Pigeonroost Hollow in the coalfields of southern West Virginia, near the little town of Blair. To her, Pigeonroost was a place of incomparable beauty. In winter, with the limbs of trees weighed down with snow, “it was like looking at a postcard,” she remembers. Her family settled in Pigeonroost in the early 1800s. She had kinfolk living from the mouth of the hollow to its head three miles away. After work required her family to move elsewhere in the state, she used to serenade her father Jim, singing, “Daddy, won’t you take us back to Pigeonroost Hollow,” a takeoff on the John Prine standard. Her family did return. She was too young at the time to realize how much the hollow also meant to her father.

By the mid-1990s, however, it looked as though the hollow’s days were numbered. Arch Coal, a leading producer, had begun a gigantic mining operation a short distance from Pigeonroost on the mountain ridge above Blair. This was not old-fashioned underground mining or even conventional strip mining. Arch was blowing the top off the mountain to get at the seam of coal beneath, deploying two huge shovels and a dragline--a towering crane-like machine atop a base the size of a nine-storey hotel--to help shove millions of tons of debris over the sides into the valleys and streams below. Valley fills, they were called. Such strip-mining was known as mountaintop removal.

For the people of Blair living just below the mine, named Dal-Tex, it meant explosions just hundreds of feet away, powerful enough to crack the foundations of their homes, and dust so thick cars turned their lights on in the daytime. The mining went on around the clock, seven days a week, year after year. There was no escaping it except to sell out and move.

“Just ’cuz I have a high-school education and was born in a hollow don’t mean I’m a dumbass hillbilly,” says James Weekley who, after two years watching Blair Mountain being carved up by Arch Coal, took the mining company to court. Photo: Kenny King

Jim Weekley and his wife Sibby were just half a mile from the dragline, close enough that the blasting broke things in their house and clouds of dust drove them off their porch and caused them to cough even when they were inside. They could not avoid the continual high-pitched squeal of the dragline’s bucket – so large it could scoop up the equivalent of five tractor-trailer loads of dirt and debris – as it was dragged across the ground. The dragline, named the Aracoma Chief, moved back and forth along the ridgeline, working from hollow to hollow. Even when it was out of sight, they could hear its racket.

The Weekleys knew Arch had also applied for another mining permit covering five square miles and including Pigeonroost. If approved, it would be the largest mine in West Virginia’s history. They knew two giant valley fills and two waste-treatment ponds were to be constructed not far from their house. Most of their neighbours in the hollow had already moved out. As soon as Arch finished the Dal-Tex operation, it would begin the new Spruce #1 mine. Much of Pigeonroost Hollow would be buried in rocks and dirt from the leveled mountain.

Jim Weekley, an intense, rail-thin man who had broken his back working in a coal mine when he was young, used to sit on the huge “meditating rock” above his house. It rested on the very top of the mountain and from there he could see for miles. For years, it had been so “quiet and peaceful up there, it put you close to heaven,” he recalls, but now he gazed at the spreading devastation. Perched on the rock, he’d time the dragline’s operation: Drop the bucket. Drag it along the ground. Fill it up. Swing it wide to the left. Dump the debris. It took 47 seconds. He wanted, says Lucinda, to know how long it would take to flatten the mountaintop.

Finally, after two years of watching Blair Mountain being carved up, he’d had enough. One summer day in 1997, he was outside his house looking at the mountains surrounding Pigeonroost and the dragline. The house was flanked by a brook where he and his grandchildren liked to fish. Around the house stood some 50 beehives he tended for honey. Dust kicked up by the dragline hung in the air. Sibby was standing on the porch. He whirled around toward her and declared, “Something’s got to be done.” He quoted words he believed were in the Bible: “God spoke thus, ‘Let no man destroy what I have created.’” Sibby agreed they had to act. They decided to get a lawyer.

Something else was driving Weekley. A former union miner, like many in his family before him (several of whom were killed in mine accidents) he considered Blair Mountain sacred ground. In 1921 it had been the scene of the largest labour insurrection in American history and the biggest military engagement on American soil since the Civil War, involving upwards of 20,000 miners and supporters. Their aim on the battlefield had been to free their brothers in southernmost West Virginia from the oppression of the coal company by extending their union, the United Mineworkers of America (UMWA), to them.

Even in West Virginia most people know little about the Battle of Blair Mountain. The story has been passed down in union families, but for more than half a century the battle was not mentioned in public-school textbooks, a suppression of their history that still rankles some West Virginians. Today, Blair Mountain is noted in schoolbooks, but only briefly.

Weekley, however, had grown up learning about the battle. His mother told him members of the miners’ army had camped in Pigeonroost and that her parents had taken them food, despite warnings they were risking arrest or worse. Weekley eventually grew determined to save the miners’ battlefield from mining and to honour it “This is what made our union…,” he says, “this battle right here on Blair Mountain.”

The struggle to commemorate it goes on to this day and has finally made some headway. After three decades of fruitless attempts to nominate the battlefield to the National Register of Historic Places, the federal government is now considering awarding it that historic status. Yet even if it does, that will not necessarily keep coal companies from destroying it through strip-mining. The fight to preserve the battlefield continues.

The Weekleys were referred to a neophyte environmental lawyer in a firm that represented the poor for free. Indeed, they were Joe Lovett’s first clients. No one had ever sued over mountaintop removal and Lovett had to find grounds to do so. He called every environmental lawyer he could think of, but no one had any ideas. And only one, a law professor, was initially interested. “It’s Appalachia,” they told him. “See, nobody serves Appalachia.” Lovett finally figured out he could sue under the US Clean Water and Surface Mining Control and Reclamation Acts. He wound up filing in federal court on behalf of Pigeonroost and two other communities experiencing similar problems. There were six plaintiffs beside the Weekleys, plus the West Virginia Highlands Conservancy.

While Joe Lovett poured over mining law, Weekley and Sibby were doing their own legal research at the county courthouse and at home. Lucinda says her father preferred knowing the law himself to relying on someone else’s word. Weekley had wanted to be a lawyer as a youngster and had started taking classes in law in junior high. Instead he had met Sibby in Pigeonroost and married her at age 18 and gone to work in the mines.

The last judge Lovett wanted to hear the case, named Robertson vs Bragg, was Charles H. Haden II, a Republican from a mining family whose rulings took a decidedly pro-mining bent. But Haden got the case. Weekley encountered Arch’s general counsel, Blair Gardner, speaking at a conference and badgered him mercilessly until he agreed to come to Pigeonroost to see what was at stake. A battery of reporters learned of the meeting and met an unsuspecting Gardner there. That day, Weekley, as always, spoke from the heart, while Gardner, struck by nature’s abundance in Pigeonroost, remarked, “This is like a rainforest.” It was, says Lovett, their first media victory.

While the court case proceeded, Weekley was speaking out at protest rallies and in interviews. “Just ’cuz I have a high-school education and was born in a hollow don’t mean I’m a dumbass hillbilly,” Weekley says.

Then Judge Haden himself came to Pigeonroost before flying over southern West Virginia to see mountaintop removal firsthand--remarkably, at the defense’s request. On landing, “Haden was astonished,” writes Penny Loeb in Moving Mountains, her penetrating book on the Bragg case and its key figures, “‘What were they ever thinking to take me up there?’ he said to his clerks.” Says Lovett, “I think that the flyover and the visit turned him completely.”

A few days later, Haden stunned nearly everyone by issuing a preliminary injunction that barred opening Spruce #1. (His opinion cited the threat to wildlife and aquatic life in Pigeonroost.) That meant the 300 or so Dal-Tex miners who were ready to transfer to the new mine now faced a layoff. Arch, the miners, and the county commission howled. “COMMISSION: THIS IS WAR” headlined the local Logan Banner. One day, when the two sides were negotiating several issues in the Charleston courthouse, “A noisy parade of coal trucks continually drove around the courthouse constantly honking their horns--heard loud and clear by Judge Haden and all the rest of us,” recalls plaintiff Cindy Rank. (Nearly all the other issues would be settled in the plaintiffs’ favour with lasting effects in West Virginia, including smaller valley fills and improved reclamation.)

But this was nothing compared to the reaction that October, when Haden not only made the injunction permanent but also banned the dumping of mining debris in West Virginia streams--in effect, ending mountaintop removal throughout Appalachia.

Lovett had won a landmark decision, and Pigeonroost seemed safe from mining. But the decision brought denunciations from the coal industry and a declaration of a state of emergency from Gov. Cecil Underwood. A thousand coal miners rallied in Washington, D.C. “Things were really tense,” says Lovett. “We were lucky no one was killed.”

A few days later, Haden sought to calm the waters by staying his ruling temporarily. Strip-mining immediately resumed. Ultimately, his far-reaching decision would be reversed by an appellate court on the grounds that the case should have been brought in state court, leaving the legality of valley fills--and so mountaintop removal itself--unresolved. They would be challenged again and again in various courts. Weekley’s lawsuit had opened the door to legal combat over mountaintop removal. This year, however, the Spruce #1 mine started operating and mountaintop removal has begun in Pigeonroost within sight and sound of Weekley’s home.

Peter Slavin, a freelance journalist based outside Washington, DC, has been writing about the West Virginia coalfields since 1995.

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