National Register Must Defend Site Exclusion

     (CN) - The National Register of Historic Places must defend its decision to exclude the site of the largest armed labor conflict in U.S. history from its listing of places worthy of preservation, the D.C. Circuit ruled.
     In 1921, 5,000 coal miners marched to liberate fellow miners living under martial law on Blair Mountain, a 1,600 area in Logan County, W.Va.
     When they got there, they found the mountain fortified by 3,000 mercenaries hired by the coal companies to block their advance forming a 10-mile defensive line, including trenches and mounted machine guns.
     The miners responded with gunfire of their own, and the battle continued for several days until federal troops quelled the violence.
     The Sierra Club, the Ohio Valley Environmental Coalition, as well as historical preservation societies, have sought to list the Blair Mountain Battlefield in the National Register of Historic Places to protect it from surface coal mining.
     It gained a spot in the listing in 2009, but the Keeper of the Register removed the battlefield within days, finding that area property owners - primarily coal companies - objected to the listing.
     On Tuesday, the D.C. Circuit ruled the organizations have standing to challenge the Keeper's decision, despite the fact the land is privately owned by coal mining interests, and the plaintiffs have no legal right to set foot on the property.
     "Coalition members who view and enjoy the Battlefield's aesthetic features, or who observe it for purposes of studying and appreciating its history, would suffer a concrete and particularized injury from the conduct of surface mining on the Battlefield," Judge Sri Srinivasan wrote for a three-member panel. "And one person, whose grandfather fought at the Battle of Blair Mountain and who plans to continue visiting the site, stated that mining of the Battlefield would 'destroy a virtually holy place' that he considers 'sacred ground.'"
     Although surface mining could still continue after the battlefield won historic recognition, the court said that the requirement to minimize impact to the site may provide addition protections over those already granted by West Virginia law.
     "For sites already listed in the Register, by contrast, the obligation under § 38-2-3.17.c to minimize adverse impacts is expressed in mandatory terms," the 18-page decision concludes. "The coalition's argument that § 38-2-3.17.c affords greater protections than otherwise arise under West Virginia law therefore is at least non-frivolous, and suffices to establish causation and redressability."