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Escalating Sanctions Against Mountain Top Removal Activists

Mountain Injustice

by TRICIA SHAPIRO

"Protesters Occupy Marfork Coal Co.’s Office in Response to Mounting Violations,” said a press release from the protesters’ supporters at Climate Ground Zero on Thursday morning, Feb. 18.

A news release from Massey Energy, Marfork’s parent company, told rather a different story: “Environmental Terrorists Invade Marfork Coal Company Office…. Three criminals clad in fatigues and carrying chains invaded a company office and chained themselves to chairs in the lobby. A terrified receptionist went into shock and was transported by ambulance to a local hospital…. One of the criminals, Mike Roselle, was a founding member of Earth First!, which is considered by many to be a domestic terrorist group…. These domestic terrorists are part of an anti-coal group that wants to shut down mining in Appalachia and destroy West Virginia’s economy.”

Massey’s “news release” doesn’t specify who those “many” are who consider Mike and his colleagues to be “domestic terrorists.” But even right-wing activist Ron Arnold, who’s written an entire book on “ecoterrorism,” asserts that “Roselle may be a terrible pain in the ass, but he’s no terrorist.” Writing shortly after Mike’s first trespassing arrest on Massey property, at Marfork’s Bee Tree strip mine site a year ago, Arnold scolded those who would “dilute” the meaning of the word terrorism by applying it to nonviolent protest.

“Face it,” he wrote, “what he did was civil disobedience, not terrorism.”
The claim that “a terrified receptionist went into shock” is equally puzzling. “She was definitely startled when we came in,” says Joe Hamsher, one of the three protesters arrested that day. But soon “she calmed down. She was even laughing.”

Protests are not a new experience for Massey workers. Since February of last year, more than 130 arrests have been made at civil-disobedience actions protesting mountaintop-removal (MTR) strip mining for coal in West Virginia. Several of those actions have targeted Marfork, which has begun blasting at its Bee Tree MTR site a short distance from its enormous Brushy Fork impoundment, which holds billions of gallons of liquid coal waste up above the Coal River valley. Anti-MTR activists and local residents are concerned that blasting so close to the impoundment, which is built over abandoned underground coal mine tunnels, risks catastrophic flooding that by Massey’s own estimate could kill close to a thousand people.

The only violence or threats of violence at any of these actions have been directed at the protesters, not vice versa. For example, at a protest rally at the front gate of Massey’s Goals Coal facility last June, a Massey supporter slapped anti-MTR activist Judy Bonds hard enough that she couldn’t move her neck properly for days. Most recently, in January, workers at Marfork’s Bee Tree site blared multiple airhorns, day and night, at three protesters sitting in trees there, risking permanent damage to the protesters’ hearing. At a previous tree sit, last summer, a sitter was threatened with gang rape.

“We were definitely not much of a threat to her,” Joe Hamsher says, referring to the receptionist at the Marfork office. “I mean, we were locked down.” Joe, the first of the three to enter the building that morning, announced “this is a protest,” then immediately sat down and locked himself to a chair. (That’s why they were carrying chains.)

Meanwhile, Mike Roselle posted a sign reading “CLOSED: Stop the Blasting!” on the building’s front door. A Marfork employee tore the sign down, while the third protester, Tom Smyth, took pictures. Then Mike and Tom entered the building and sat down near Joe. Tom chained himself to his chair.

The three protesters had brought with them a “citizen’s arrest warrant” for Marfork’s president. “Since 1994,” the warrant read, “the Marfork Coal Company has committed over 100 documented permit violations…. Marfork’s continued operations in such close proximity to both Marsh Fork Elementary and the Pettus Head Start Program are not only endangering, but also assaulting the children at these locations with coal dust and other particulates floating off of the mine sites owned by Marfork Coal…. Marfork is continuing its operations on the Bee Tree Strip Mine, placing nearby communities in imminent danger. As President of the Marfork Coal Company, you are responsible for the illegal practices of Marfork. Given the absence of any intervention from West Virginia or federal law enforcement, a citizen’s warrant has been issued for your, Christopher L. Blanchard’s, arrest.”

Two hours after the protesters arrived, state police took them away to jail. (When they left, the allegedly terrified receptionist was still at work, showing no ill effects, Joe notes.) The three were charged with trespass, obstruction, and conspiracy– all misdemeanors. Bail was set for Joe and Tom at $5,000 each, for Mike at $7,500. The magistrate specified that the arrestees would have to raise the entire $17,500 in cash, rather than paying a bail bondsman a small fraction of the money, typically 10 percent. (Nice, artsy video from Climate Ground Zero of the occupation.)

The Massey “news release” cited above quotes the company’s chairman and CEO, Don Blankenship, saying: “These criminals have been allowed to become more and more aggressive with little repercussion.”

In fact, the “repercussion” against anti-MTR protesters in West Virginia has escalated dramatically over the past year. Early on, protesters arrested for trespassing were simply ticketed and released. Now, they’re sent to jail and required to raise large sums of bail money. Even accused murdererers and child molesters are typically permitted to use the services of a bail bondsman, to reduce the amount of cash they have to muster to get out of jail before trial. But West Virginia magistrates are now typically specifying large cash-only bonds for civil-disobedience arrestees at anti-MTR protests. This has resulted in protesters being kept in jail after their arrests, but before any trial, sometimes for many days, far longer than the norm for such nonviolent offenses. (Of the three Marfork protesters, Joe was bonded out after eight days in custody. Tom and Mike remain in jail. Click here to help them raise bail.) When protest cases do come to trial, the fines assessed have generally been increasing as well.

In addition to these escalating sanctions in criminal court, Massey lawyers have filed multiple civil suits against protesters arrested on their property. Lawsuits demanding injunctions and so-far unspecified money for “damages” have been filed against dozens of these protesters: one suit in Raleigh County against participants in several protests there early in 2009, one suit in Boone County against participants in an action there, and a separate Raleigh County suit against participants in a tree-sit action last summer. Protesters not actually named in any of these suits have been found in contempt of a court’s injunction for “acting in concert” with one of a suit’s named parties; that ruling is currently being appealed. In addition, Massey recently filed suit in federal court against participants in the January tree-sit protest at Marfork, requesting at least the minimum of $75,000 in damages that would make such a case eligible for federal
court.

At a hearing for the federal lawsuit on Tuesday, Feb. 23, Massey attorney Sam Brock said that activists protesting against Massey “just have to live by the same rules as everybody else.” Sitting in the courtroom that day, I remembered Massey’s 2008 settlement with the federal EPA for thousands of permit violations related to the Clean Water Act: Massey agreed to pay $20 million, although given the number and nature of the violations the EPA could properly have assessed $2 billion or more–100 times as much. (Massey’s own estimate of this prior to the settlement was $1.5 to $7 billion.) Furthermore, just a few weeks ago, in January, a coalition of environmental groups announcing their intent to sue Massey cited documentation that the company’s permit violations had become even more frequent since the EPA settlement.

Would an even-handed application of “the same rules” allow protesters to commit, say, 99 (or more) civil-disobedience actions with impunity before being arrested for one of them?

“While Massey’s lawyers were in court today trying to enjoin anyone anywhere from trespassing on Massey operations,” Vern Haltom, co-director of Coal River Mountain Watch, noted later that day, “Massey was spilling black water [coal waste] from their Martin County, KY, operation. And Pioneer Fuels (NOT a Massey subsidiary) was spilling black water into Clear Fork,” which empties into the Coal River near Marfork’s headquarters, upstream from the town of Whitesville’s public water intake.

“Unfortunately,” Vern says, “our regulators don’t escalate the enforcement of Massey’s repeating violations that are endangering the community with the same vigor that prosecutors and Massey attorneys are suppressing the voices of endangered people,” CRMW’s other co-director Judy Bonds, 2003 winner of the Goldman Environmental prize and a lifelong resident of Coal River valley, puts it more bluntly: “I believe the justice system in southern West Virginia is discriminatory in favor of the coal industry. I think keep screaming about it is all we can do.”

TRICIA SHAPIRO has been covering anti-MTR activism as an embedded freelance writer since 2005. Her book Mountain Justice: Homegrown Resistance to Mountaintop Removal, for the Future of Us All will be published by AK Press this fall.