Aug. 15, 2006
 
NEWS ANALYSIS: Council Jousts Over Proper Legal Posture of Adverse Ruling on Westmoreland Barge Dock
 
By Tony Rutherford
Huntington News Network Writer
 
Huntington, WV (HNN) -- Although a Westmoreland resident quipped something to the effect that, “We’re going to have to hire our own lawyer,” Huntington City Council crafted a resolution to support the Westmoreland residents without subjecting itself to a possible contempt of court citation.
 
What kept council and outsiders partially stymied comes from the knowledge of the verbal ruling of Judge John Cummings indicating that the 1994 contract which was rescinded by council was indeed valid, despite no consideration having been rendered.
 
However, the ruling has yet to be reduced to a written order. Under the Rules of Civil Procedure, the prevailing attorney generally writes the judge’s order, allows the opposition attorney input to ensure that the statements and conclusions accurately reflect what the judge said, and then the proposed ORDER is delivered to the judge for his signature.
 
While the City of Huntington and the Westmoreland residents want to jump forward into the appellate process, a question of law exists as to whether the court’s ruling qualifies as a “final order” so that it is subject to appeal. Normally, you think of appealing after a jury has rendered its verdict, in the Westmoreland barge controversy, the judge has ruled only on one issue of the complex litigation, including that the city can not zone the river.
 
State Sen. Evan Jenkins, himself an attorney, told council that “the citizens are outraged, they want to have a voice. I hope we are not going to stall this because a final order has not been entered.” He added that perhaps a vote signifying the city’s intention to appeal would send the Corps of Engineers a message: “Do Nothing.” The Corps of Engineers has declined to entertain a permit application from the barge company due to the pending litigation. Whether the Corps will view the Circuit Court’s interim decision as enough to re-start the permit process remains unknown.
 
Actually, a difference of opinion exists as to whether the docked barges would touch land which the city could potentially zone. And, insofar as the river, the waters of the Ohio separate two states and are used for navigation, thus, perhaps, a federal court should have made the zoning of the river decision. However, since Council itself disagrees with the ruling and since previous council’s have been accused of interfering with the barge company’s lease, Judge John Cummings has ordered that the city do nothing to thwart the barge company’s exercise of their rights under the lease.
 
The give and take between council and City Attorney Scott McClure related to whether the body could endorse actions that might appear to the judge to be “thwarting” the company’s rights. A question emerges…which can not be answered by a non-attorney and may be debated by the legal profession: Does City Council as a body have a right, like everyone one else, to under the First Amendment Petition for Redress? When does such dissention and opposition cross the barrier between legitimate political and constitutional expression and defiance of a court ruling?
 
Council’s agenda included a resolution that requested the city to appeal the circuit court decision with regard to the barge issue. Following discussion at the work session, the body seemed to understand that the resolution was a “show of support” as legally no enough of the case before the court has progressed so that a Petition to Appeal can be filed with the West Virginia Supreme Court.
 
In the meantime, the company must apply for permits from the Corps of Engineers, state environmental control commission, division of air quality, water quality and other agencies. Councilman Calvin Kent proposed ensuring that the barge facility does not become operational while litigation continues:
 
“If we [council and the city] are silent when there are hearings and we do not speak as a city, then I think we have betrayed the confidence of the people,” Kent said. “It’s a case of enforcing our zoning ordinances, asking if there are environmental problems so far as air and water quality is concerned. How long do we wait before we take any action? Is the Corps going to say that Judge Cummings has issued a decision, so we’ll go ahead and issue a permit.. Somewhere along the line we have to express that if there is a violation [of environmental law] , then their rules ought not be waived . If there is a violation of the permitting rule, we ought to indicate that their rules and law not be waived.”
 
The city attorney countered, “You may or may not like [the ruling] but the governing body is still a party to the lease , and you ought not to take action to thwart the lease,” McClure insisted.
 
Councilman Paul Ferrell, an . attorney, explained that appealing is what lawyers do. “If you guys got an appealable issue, let’s take it up. The judge made a mistake that’s what [lawyer’s] do day in and day out.” After a five minute recess, Kent revised his additional be it resolved to state that “the city attorney take whatever action is appropriate to see that all laws and regulations of the state and federal government are in compliance with this permit.”
 
The council unanimously approved the resolution which essentially directs the city attorney to file an appeal when the case is ‘ripe’ for this legal procedure, and, in the meantime, monitor the progress of the company in their applications to secure the necessary permits to begin operation.
 
Several residents spoke of the impact of the proposed facility on the rest of the city stating that the wind would carry the coal dust pollutants over all the city. In fact, one man who grew up in the coal fields near a barge cleaning facility displayed a picture of family members with red dots on the ones who developed cancer possibly due to the pollution.