Delorice Bragg and Freda Hatfield were told by a federal judge this week that they cannot hold federal mine safety officials responsible for the deaths of their husbands five years ago in a fire at Massey Energy's Aracoma Alma mine in West Virginia.
That's despite an internal review that found federal mine inspectors and supervisors culpable in the fire.
The Mine Safety and Health Administration's (MSHA) "culpability rests with…the inspectors who conducted the mine inspections through the headquarters office personnel who ultimately were responsible for overseeing MSHA activities," the agency wrote in an internal review of its oversight of the mine.
U.S. District Judge John Copenhaver accepted that "stinging assessment," as he called it, but still dismissed the lawsuit Bragg and Hatfield filed against MSHA officials.
Copenhaver said he couldn't "impose a legal duty" on MSHA and its inspectors and managers because that "would directly conflict with Congress' decision to place the primary responsibility for mine safety on mine operators."
"There is little likelihood they will ever be called to account," says Bruce Stanley, the attorney for the Aracoma widows, even though "the government has basically flat out admitted it did not do its job."
Copenhaver's reasoning may sound familiar. Similar language was used recently by assistant labor secretary Joe Main when he was asked about the agency's possible culpability in the explosion last year that killed 29 coal miners at Massey Energy's Upper Big Branch mine.
On January 19, MSHA briefed reporters on a series of safety failures involving the massive longwall mining machine that is believed to be the source of the blast.
Main was asked whether those failures might also indicate MSHA's culpability, since the agency's inspections and other enforcement efforts failed to detect and address those problems.
"Mine operators have responsibility to… catch the kinds of things we're talking about," Main said.
"I think my folks were enforcing here," added Kevin Stricklin, MSHA's coal mine safety chief, referring to hundreds of safety citations against the mine.
But Stricklin also noted that MSHA's enforcement at Upper Big Branch is under review, as it was after the Aracoma fire.
Bragg and Hatfield settled a wrongful death lawsuit against Massey Energy in the Aracoma case. Massey also paid $4.2 million in criminal and civil penalties and four supervisors pleaded guilty to federal criminal charges.
"The widows have done just about all that is within their power," Stanley says, "to shed light upon and hold accountable those responsible for the mindless greed and dereliction of duty that got their husbands killed."
Two wrongful death suits against Massey are pending in the Upper Big Branch tragedy. But given Judge Copenhaver's ruling, the widows involved have little hope of successfully suing the government even if MSHA negligence is found.
MSHA says it has no comment in response to the ruling.