West Virginia Record

Friday, November 22, 2019

Jury must apportion blame for flood among God and businesses

By Steve Korris | Feb 17, 2006

Ohio County Circuit Judge Arthur Recht

BECKLEY -- A Raleigh County jury must divide the blame for the flood of July 8, 2001, between God and businesses.

Circuit Judge John Hutchison has set a March 1 trial on claims that coal mines, timber operations and railroads changed the landscape in ways that made the flood worse.

The flood destroyed about 1,500 buildings and damaged about 3,500 buildings in six counties south of Charleston. It wrecked bridges and buckled roads.

Hutchison's trial, however, will focus only on damage at Mullens and Oceana. Other trials will follow.

Because flood victims sued businesses in different counties, the West Virginia Supreme Court of Appeals appointed Hutchison, Nicholas County Circuit Judge Gary Johnson and Ohio County Circuit Judge Arthur Recht as a special Flood Litigation Panel.

The judges combined the cases and planned three trials at Beckley. After Hutchison completes the first trial, Johnson and Recht will hold trials on claims from other areas.

About a year ago the Supreme Court of Appeals assisted the judges by framing the questions the trials should answer.

Among other points, the Justices guided the judges in distinguishing the effects of an act of God from the effects of human conduct.

They held that an act of God must be the sole cause of damages, and they carefully constructed a rule for the judges to follow:

"Where a rainfall event of an unusual and unforeseeable nature combines with a defendant's actionable conduct to cause flood damage, and where it is shown that a discrete part of the damage complained of was unforeseeable and solely the result of such event and in no way fairly attributable to the defendant's conduct, the defendant is liable only for the damages that are fairly attributable to the defendant's conduct."

The Justices identified 489 plaintiffs and 78 defendants in flood cases.

Plaintiff attorney Stuart Calwell of Charleston stated in a brief to the Court that another 3,000 plaintiffs had joined the cases.

Plaintiffs will bring to court only a trickle of science behind their assertion that mines and timber operations made the flood worse.

Scientists found that mining and logging increased surface runoff, but they reported that the extra runoff contributed a relatively small volume of water at the mouths of streams.

They reported more pronounced impacts upstream, near mines and timber operations.

"Even without the exacerbating effects from the industry operations," they wrote, "significant out of bank flows would have resulted."

The storm that spawned the flood poured 5.32 inches of rain on Mullens and 5.19 inches on Oceana. A gauge south of Beckley collected 6.77 inches of rain.

The Guyandotte River rose in five places to levels that scientists would have expected once in more than 500 years.

At Mullens, where Slab Fork normally empties into the Guyandotte, the merging waters spread out through the business district and ruined 62 of 64 local businesses.

Tug Fork also experienced a 500 year flood, at a point west of Anawalt.

Rescue teams in helicopters plucked victims from rooftops. Gov. Bob Wise lent his official helicopter to the rescue.

The storm had caused three deaths in Kentucky, but it claimed o! nly one life in West Virginia.

As the waters receded, residents of the region laid blame on coal mines and logging operations for damaging the landscape and disrupting natural responses to rain.

Wise appointed a citizen committee to investigate the impact of mining and logging.

At a hearing in Whitesville, citizens described to the committee a wall of water carrying debris. They said they smelled diesel fuel or gasoline.

They said the water turned yellow and then gray.

A local man said, "There is enough coal in my yard to heat the hollow for four years."

At a hearing in Fayette County, speakers blamed not only mines and loggers but also highways, railroads, and oil and gas companies.

Hydrologists working for the committee decided to study Seng Creek in Boone County and Scrabble Creek in Fayette County, both near mining and logging operations.

They chose Sycamore Creek, in an undisturbed area of Raleigh County, for comparison.

They found that on Scrabble Creek, mining operations had increased runoff by nine to 21 percent, and logging had increased runoff by less than four percent.

On Seng Creek, they found a surprise. Miners had actually reduced runoff by restoring a mountaintop with gentler slopes than nature had created.

They found no impact from mining on Seng Creek greater than three percent. They found logging impacts between four and six percent.

They found that emergency spillways at mines in the Seng and Scrabble watersheds had accommodated the flood without overtopping.

They found that most of the damage from mining occurred on mining properties.

On adjacent lands, they found sediment deposits.

Where flood waters had backed up behind undersized culverts and low bridges, they found that trash and debris had piled up to block the flow.

On the undisturbed Sycamore Creek, they found severe damage to the community of Colcord, near the mouth of the creek.

"In general," they wrote, "the percentage contributions of mining and timbering were relatively small when compared to the total stream flow volumes and the associated cross sectional areas at the mouths of the selected watersheds."

They wrote that timber operations might have increased damage by disposing of slash near streambeds.

University of Georgia hydrology professor Rhett Jackson, in a review of their report, warned that their research model and their input were both inaccurate.

He wrote that observations give better information than models.

He argued that they should have published a map and tables of data so the public could spot any correlation between flooding and mining or logging.

University of Georgia adjunct professor Wayne Swank, also reviewing the report, minimized the impact of logging.

He wrote that a fourth of the trees in a watershed must be cut before the annual water yield changes significantly.

He wrote that roads were the primary source of runoff in logging operations.

"During major flood producing storm events," he wrote, "the effects of a forest cover on peak discharge are minimal."

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