West Virginia Supreme Court Hears Flood Lawsuit Arguments

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The suits claim that mountaintop removal mining and logging left forests unable to soak up excessive rain and caused streams and rivers to overflow.

Lawsuits seeking damages from timber, mining and land companies for devastating 2001 floods should be revived, lawyers representing hundreds of southern West Virginia residents told the state Supreme Court recently.

But attorneys for more than 100 defendants in the lawsuits told the court that circuit court judges were correct to dismiss a case involving Coal River watershed residents and overturn a jury verdict that would have allowed about 500 people from the Mullens area to seek damages from two land companies.

The cases center on flooding that hit after up to seven inches of rain fell across seven southern West Virginia counties July 8, 2001, causing more than $143 million in damage. The suits claim that mountaintop removal mining and logging left forests unable to soak up excessive rain and caused streams and rivers to overflow.

Just one case has gone to trial, but Raleigh County Circuit Judge John Hutchison overturned the verdict, ruling two experts offered only subjective testimony.

Attorney Scott Segal tried to punch holes in Hutchison’s thinking before the Supreme Court, arguing that the experts used standard engineering to determine that timbering activities contributed to the flooding. The only problem with the experts, Segal said, is that they don’t have experience with the timber industry.

“They (the timber industry) don’t believe that they have to worry about what happens to the downstream residents,” Segal said. “A healthy forest floor could have absorbed 10 times more rain than fell that day.”

But attorney Richard Bolen, who represents timberland owners, said one of the defense experts had no experience, no education, and no knowledge about the timber industry. Moreover, Bolen said, that expert based his testimony on the wrong type of soil.

Attorney Stuart Calwell, meanwhile, argued that Ohio County Circuit Judge Arthur Recht shouldn’t have dismissed a case involving the Coal River watershed but should have allowed the plaintiffs to get additional information. “If you give in to the reasoning of Judge Recht, you’re going to be standing our entire system of civil procedure on its ear,” he said.

Defense attorney Al Emch, however, said Recht’s reasoning was “extremely proper” after seeing “chaos” from the plaintiffs.