W. Va. Trial to Determine Fault in 2001 Flooding

A trial is under way in West Virginia to determine whether severe flooding in the state's coal fields in 2001 was an act of God, or the result of negligence by coal companies and timber companies. Dan Heyman of West Virginia Public Broadcasting reports.

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MICHELE NORRIS, host:

From NPR News this is ALL THINGS CONSIDERED. I'm Michele Norris.

MELISSA BLOCK, host:

And I'm Melissa Block. In West Virginia mining, logging and timber companies are on trial. They're accused of being responsible for the damage from the huge floods that raced through parts of the state in 2001. This is the first of eight trials taking up the issue. More than 3,500 people have sued. The companies say they're not responsible for a natural disaster. Dan Heyman of West Virginia Public Broadcasting has the story.

DAN HEYMAN reporting:

Video screens and projectors crowd the small courtroom. They're there help the 12 jurors understand a series of complex charts, maps and graphs that will be evidence in this case. Much of the testimony will feature technical battles waged between dueling experts, mining engineers, foresters, meteorologists. For example, plaintiff's attorney Alex McLaughlin questions Joseph Newlin, a forester for a timber company about how steep logging trails can be.

Mr. ALEX MCLAUGHLIN (Attorney for Plaintiff): What is the actual best management practice guideline for skid roads?

Mr. JOSEPH NEWLIN (Forester): Skid roads can have short steep sections up to 20 percent if you're not going to disturb the mineral soil, you can go up to 40 percent grade on the skid road.

HEYMAN: But basically the lawsuit's not really complicated at all. Were the industries negligent in the way they cleared the land while logging and mining?

Mr. STUART CALWELL (Lead Attorney for the Plaintiffs): The disturbances on these hillsides actually contribute to a increase in flash flooding.

HEYMAN: Stuart Calwell is the lead attorney for the plaintiffs. He says they have evidence that when coal and timber production goes up, so do the number of floods.

Mr. CALWELL: If this were a flat state, there'd be no problem to cut roads here and there to retrieve logs or create big pits to get coal. But the problem is these resources are on very unstable, and very, very steep hillsides, and people live below those hillsides.

HEYMAN: About five thousand homes and businesses in seven counties were destroyed or damaged by the floods.

Roger Fralee(ph) is an 85-year-old retired coal miner and a plaintiff in one of the suits. He said the hollow where he lives became a channel for a flash flood in 2001, carrying waters that ran off a mountain top removal site.

Mr. ROGER FRALEE (Flood Victim/Plaintiff): I had eight foot of water in my basement destroying my outbuildings and everything I had in them. The yard, the driveway, everything I had was pretty well destroyed.

HEYMAN: But according to the defense, the floods were an act of God. John Fowler is a lawyer for the White Oak Lumber Company. He says the kinds of rains that moved through parts of Southern West Virginia five years ago, have a one in a thousand chance of happening in any given year.

Mr. JOHN FOWLER (Attorney, White Oak Lumber Co.): This flood was a thousand year flood, and that's what the evidence will be. A thousand years ago, the Magna Carta hadn't been signed, and William the Conqueror hadn't invaded England. So this is a storm circumstance that couldn't be predicted. And no forest, no farmland in Kansas or Iowa could've sustained it.

HEYMAN: There have been individual lawsuits over flood damage before, some successful. But this is the first class action suit of its kind. Fowler's afraid a victory could set a bad precedent for the claims of people living in the flood plains of Southern West, Virginia.

Mr. FOWLER: I understand completely why they're there. But as long as they're there, they're going to get flooded occasionally, because there are just too many steep mountainsides. And it's been that way since the Indians were here, you know. It's just going to come off the mountains.

HEYMAN: The trial in Beckley is expected to take another three weeks. Two more cases are scheduled for court this summer and fall. For NPR News, I'm Dan Heyman.

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