Monday, November 17, 2014

The Second Battle of Blair Mountain

By Professor Daniel P. Selmi

The first paragraph of an appellate opinion is often bland, perhaps informing the reader generally about the legal issue involved and previewing the Court's ruling. It serves a functional purpose and is not intended to entertain. In contrast, the opening paragraph of Sierra Club v. Jewell,[1] a 2014 decision of the U.S. Court of Appeals for the District of Columbia Circuit, immediately grabs the reader's attention by launching into a brief description of a fascinating episode in American history:
The Battle of Blair Mountain is the largest armed labor conflict in our nation's history. In 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.[2]
This blog posting recounts the story of the litigation over the Battlefield, in which I was one of the lawyers representing the appellants, and the Court of Appeal's opinion.

Listing Followed by Delisting

After years of strenuous efforts by local environmental advocates and historians, and several unsuccessful attempts, in March 2009 the Blair Mountain Battlefield was placed on the National Register of Historic Places. The National Register is an official list kept by the federal government composed of "districts, sites, buildings, structures, and objects significant in American history, architecture, engineering, and culture."[3] The listing, however, turned out to be short-lived. Several months later, at the urging of coal companies who vigorously objected to the listing, the Keeper of the National Register removed the Battlefield from the list. The Keeper decided that the number of property owners objecting to the listing had been miscounted and that a majority of the affected property owners had actually objected. Under federal law, concluded the Keeper, the new, higher number of objectors meant that Blair Mountain had been improperly listed on the National Register in the first instance.

The District Court's Decision

The delisting meant that neither federal law nor West Virginia protected Blair Mountain as a historic site, a bitter blow to the proponents of listing. Accordingly, the proponents filed suit in the U.S. District Court for the District of Columbia, arguing that the Keeper misapplied the relevant regulations in delisting the Battlefield. The District Court, however, never decided the merits of the case. Instead, the Court found that the plaintiffs lacked standing to bring the action.[4] It entered judgment for the defendants.

Confident that they possessed standing, the plaintiffs had submitted detailed declarations of individuals who visited the Blair Mountain area and studied it. Further, a number of cases, including a Supreme Court precedent, had recognized that injury to an aesthetic interest is sufficient to confer standing.[5] And the plaintiffs showed that mining companies had been granted federal permits under the Surface Mining Control and Reclamation Act that allowed them to mine the Blair Mountain Battlefield. The injury seemed quite real: without the protection offered by the listing on the National Register, the Battlefield would be strip mined.

The problem, thought the District Court, was that the mining permits had been granted some time ago--over 20 years in some cases--and renewed several times. Because no mining of the Battlefield had been initiated during this period, the Court concluded that the plaintiffs could not show the required "imminent injury."[6] And while the case was on appeal, a new United States Supreme Court case, Clapper v. Amnesty International USA, emphasized that to establish standing, injury must be "actually impending" and not "premised on a speculative chain of possibilities."[7]

Imminent Injury

In a 2 to 1 decision, the Court of Appeal disagreed with the District Court and reversed. The Court applied the well-established three-part test for standing set forth in the Supreme Court's 1992 opinion Lujan v. Defenders of Wildlife.[8] A plaintiff must show (1) injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.[9]

In an opinion by Judge Srinivasan, the Court of Appeals emphasized evidence in the record showing that ongoing mining was proceeding toward the Battlefield and was now very close to it. In particular, two mining operations--the "Camp Branch" and "Bumbo No. 2" mining permits--were active and listed by the State of West Virginia's regulatory records as "moving coal." Mining very near the Battlefield under these permits was now occurring, and the permits authorized mining on the Battlefield.[10]

Moreover, in papers filed with the Court as an amicus curiae, the West Virginia Coal Association had stressed that the companies' had "expectation of developing" coal in the Battlefield area. The Court concluded that this statement of expectations, coupled with the mining activities near the Battlefield, "suffices to establish a substantial probability of mining in the Battlefield."[11]

Causation and Redressability

The Court also found that the plaintiffs had met the second and third prongs of the Lujan test--causation and redressability. These two tests turned on the protections that a listing on the National Register of Historic Places offered to the Blair Mountain Battlefield and whether these protections would be lost upon delisting. The plaintiffs relied upon a West Virginia surface mining regulation stating that "all adverse impacts" to a site listed on the National Register "must be minimized."[12] The question of causation, then, largely turned on the effect of that state law, and the plaintiffs and the federal government disputed whether it would provide additional protection to the Battlefield. The Court found that, for purposes of standing, it did not have to definitely delineate the scope of the West Virginia law. Rather, because the plaintiffs' argument about the effect of the West Virginia regulation was non-frivolous, it sufficed to show causation and redressability.[13]


Judge Sentelle dissented. While recognizing that, under the precedents, an aesthetic interest could suffice to confer standing, he thought that the plaintiffs had not shown a "legally protected interest" sufficient for standing. As he put it, "[N]one of these cases would lead me to suppose that my neighbor has a legally protected right that I have invaded when I trim the grass and behead the clovers, which he enjoys viewing."[14] Here, because the plaintiffs did not show that they could enter the Battlefield property, Judge Sentelle concluded that they had no legally protected interest that they could enforce. By contrast, the majority found that "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."[15]

The Battle (continued)

The case now goes back to the District Court to reach the merits of the challenge to the Keeper's decision delisting the Battlefield. The two years of collateral litigation over standing acts as a reminder that environmental plaintiffs must exercise extreme care in establishing the facts needed to confer standing in the trial court. Here, while the government in the District Court did not emphasize lack of standing as an issue, the coal association as amicus curiae did. The District Court, of course, has an independent obligation to assure itself that plaintiffs have standing, and when it did so here, concluded that they did not. Fortunately for the plaintiffs' appeal, the affidavits they submitted showed various types of specific injury, and they had sufficient proof that the mining was near and heading toward the Battlefield.

As for the Blair Mountain Battlefield itself, if the delisting stands, then the coal companies will presumably exercise their rights under existing permits and strip mine the Battlefield. If so, the coal companies would have won the second battle for Blair Mountain, just as they seemingly won the first.

[1]           764 F.3d 1 (D.C. Cir. 2014).
[2]           764 F.3d 1, 3 (D.C. Cir. 2014).
[3]           16 U.S.C. § 470a(a)(1)(A).
[4]           Sierra Club v. Salazar, 894 F. Supp. 2d 97 (D.D.C. 2012).
[5]           See, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 494 (2009); Am. Soc'y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334, 337 (D.C. Cir. 2003).
[6]           894 F. Supp. 2d at 110-11.
[7]           __ U.S. __, 133 S. Ct. 1138, 1147-48, 1150 and n. 5 (2013).
[8]           504 U.S. 555 (1992).
[9]           Id. at 560-61.
[10]         764 F.3d at 7.
[11]         Id. at 8.
[12]         W. Va. Code R. section 38-2-3-17.c.
[13]         764 F.3d at 10.
[14]         Id. at 10 (Sentelle, J., dissenting).
[15]         Id. at 6.

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