UBB investigation not for 'private litigants,' U.S. attorney says

By Steve Korris | May 20, 2010

Berger CHARLESTON – Federal agents probing 29 deaths at Upper Big Branch mine must interview witnesses privately to protect the integrity of the investigation, according to assistant U.S. Attorney Carol Casto of Charleston.


CHARLESTON – Federal agents probing 29 deaths at Upper Big Branch mine must interview witnesses privately to protect the integrity of the investigation, according to assistant U.S. Attorney Carol Casto of Charleston.

On May 17, Casto asked U.S. District Judge Irene Berger to dismiss a motion from the United Mine Workers for an injunction requiring open interviews.

"Government investigations are not conducted for the benefit of private litigants," Casto wrote on behalf of U.S. Attorney Charles Miller.

"Candor during initial witness interviews is essential to the gathering of accurate information relevant to the mine disaster," she wrote.

"Moreover, information obtained through the investigative process will be gathered by and shared with law enforcement authorities responsible for identifying potential criminal actions and actors," she wrote.

"It is entirely unprecedented and unacceptable that law enforcement officers conducting law enforcement activities could be required to coordinate their investigations with plaintiffs and others, including those who may be criminally responsible," she wrote.

Premature release of sensitive information might compromise witness testimony and prevent identification of life saving information, she wrote.

"Plaintiffs are not being denied participation in the process, only in the investigative interviews," she wrote.

"Plaintiffs have already attempted to disrupt this process by the initiation of this action without legal authority," she wrote.

She argued that the union lacks standing to seek an injunction because citizens can't sue the United States without Congressional consent.

The union and the estates of two victims sued the U. S. Mine Safety and Health Administration on May 10.

Union lawyer Grant Crandall wrote that "the entire community has called for a full and open public hearing process, not closed door private interviews."

Families of victims designated the union to represent them for purposes of the investigation, although Upper Big Branch miners don't belong to the union.

Union leaders and owners of mine operator Massey Energy seldom agree, but both favor an open investigation and neither trusts the federal safety agency.

Massey claims MSHA ordered its engineers to change the mine's ventilation system in ways that reduced the flow of fresh air to the area that exploded on April 5.

Massey had challenged the agency's ventilation orders prior to the explosion.

The union's suit claims MSHA has an inherent conflict of interest because its conduct may be implicated in what happened.

He wrote that the criminal investigation involves bribes of MSHA representatives.

If the allegation holds any truth, he wrote, the public has reason to question whether the agency can conduct a thorough and fair investigation.

"Without the participation of miners' representatives in the accident investigative interviews, MSHA's analysis of its own role, if any, will remain secretive and inherently suspect," he wrote.

MSHA's reaction to the union's suit hurls suspicions right back at critics.

"If plaintiffs were to be granted the relief requested, the mine operator would likely demand equal access," Casto wrote.

She wrote that allowing the union, the owner and private attorneys into interviews "raises the risk that witnesses will be less candid than they would be if they were not fearful of immediate public disclosure of their testimony, and of intimidation by and retribution from persons who may be adversely affected."

She wrote that Labor Secretary Hilda Solis may conduct the investigation in the manner she deems most appropriate.

"There is nothing in the Mine Act or anywhere else that permits plaintiffs to second guess the Secretary's judgment as to how best to conduct such investigations," she wrote.

Plaintiffs can identify and interview witnesses on their own, she wrote, and they will be entitled to civil discovery if they file civil proceedings.

She promised a thorough, unbiased and thoughtful investigation.

She wrote that the public has a right to expect action, including criminal prosecution, to prevent future disasters and hold accountable those who contributed to the tragedy.

On May 18, Crandall answered that federal agencies forfeit immunity when they act beyond their statutory powers.

He wrote that the suit seeks to compel MSHA to perform the investigation the Mine Act requires.

"MSHA cannot properly execute its duty to investigate the Upper Big Branch mine disaster without subjecting the investigation to outside observation," he wrote.

He urged Berger to distinguish the case from earlier ones that did not involve allegations of MSHA misconduct.

Also on May 18, Moreland wrote that Congress waived immunity when it adopted the Administrative Procedures Act, providing for suits against the federal government.

Casto replied on May 19 that the union and the estates did not bring the action under the Administrative Procedures Act.

She called the plaintiif briefs "unfounded and inflammatory."

"Their inaccurate representations and unnecessarily divisive arguments are misleading to the public and do a disservice to those who are suffering in the aftermath of the Montcoal disaster," she wrote.

Berger has not set a hearing.

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