WEST VIRGINIA RECORD

CHARLESTON - A public interest group representing citizens who live along various roads in coal producing counties has filed a lawsuit accusing the state Legislature of overstepping its boundaries.

The Coal River Mountain Watch group argues that when the Coal Resource Transportation System was adopted in 2003, the state legislature was unconstitutionally doing the work of the state's Department of Transportation.

In a 38-page complaint filed Feb. 10 in Kanawha Circuit Court, the group argues that "the CRTS allows trucks to cross bridges weighing in excess of the limits established by the Division of Highways for the bridges, which is a violation of the Division of Powers Clause and the Better Roads Amendment of 1920."

The lawsuit lists Danny Ellis, Cabinet Secretary of the West Virginia Department of Transportation, and The Public Service Commission of West Virginia as defendants, but Coal River Mountain Watch's real interest is in proving that the state legislature's allowance of trucks to exceed certain weight limits is unconstitutional and unsafe for the residents who live along those roads.

The complaint goes into lengthy detail regarding the dangers and financial problems of the CRTS. Coal River Mountain Watch argues that fines for exceeding the 126,000 pounds a coal shipper is allowed to carry under the CRTS cost more to collect than ignore, and that nearly all the bridges in the state can not safely handle that much weight anyway. That's why the Department of Highways' weight limit for shippers was 88,000.

Citing a Department of Transportation study, the complaint states that 75 percent of bridges can safely only safely handle 65,000.

"The CRTS therefore authorizes weights approaching twice the limits of 75 percent of the bridges in West Virginia," the claim says.

The group seeks a Declaratory Judgment that will declare the legislature's actions unconstitutional, a Writ of Mandamus that will force the Department of Highways to enforce its own weight limits and a Writ of Prohibition that will stop the CRTS weight limits from being enforced.

The claim lists six allegations of unconstitutionality: A violation of the Division of Powers Clause and Better Roads Amendment of 1920 by allowing trucks to cross bridges weighing in excess of limits established by the Division of Highways; a violation of same two laws in the method that the CRTS directs the Commissioner of Highways to do his job; a violation of the equal protection clause of the state constitution in that the CRTS treats citizens who live along CRTS roads in a significantly and materially different way than citizens who do not; a violation of the equal protection clause in that the CRTS treats commodity coal shippers in a different way from shippers of all other commodities; an unconstitutional grant to a private entity; and an unconstitutional economic development grant in that the CRTS makes a grant to a general industry as opposed to individuals.

Coal River Mountain Watch, represented by John Skaggs, claims it has the interest of citizens along CRTS roads as well as the state's constitution in mind.

"The trucks create noise when loaded from the engine and 'jake' brake and from the concussion caused by hitting rough places in the roads when empty," the complaint says. 'They spread dust, diesel fumes, rock and debris in their wake."

Circuit Judge Irene Berger has been assigned the case.

Kanawha Circuit Court case number 06-C-257