Judge Tosses EQT’s Lawsuit against Doddridge County Commission
A judge has thrown out a Pennsylvania gas company’s lawsuit against the Doddridge County Commission, saying he has no jurisdiction to hear the fight over a flood plain ordinance that he’s determined is partially unconstitutional.
Pittsburgh-based EQT sued the north-central West Virginia county in May for revoking a flood plain permit after the company had spent $300,000 on the permitting process. The county acted after its flood plain manager realized homes and livestock would be vulnerable if 20,000 cubic yards of earth were moved in to build a well pad.
EQT asked Doddridge County Circuit Court Judge Timothy Sweeney to issue an injunction on the permit revocation so it could proceed with plans for 12 wells. Sweeney denied that and EQT’s motion for summary judgment in a ruling filed with the circuit clerk earlier this week.
Sweeney also declared the county’s ordinance “constitutionally defective’‘ under the West Virginia Constitution because it fails to give nearby property and mineral rights owners the right to due process—in this case, notification of proposed development and the right to be heard.
Without that, Sweeney ruled, EQT is not entitled to an injunction. And regardless of whether EQT complied with the ordinance, Sweeney wrote, “it has no clear right to the permit.‘’
The ordinance does, however, support “a legitimate public interest and is an appropriate exercise of governmental authority and power,‘’ the judge said.
EQT spokeswoman Linda Robertson said that given the wording of the ruling, “it’s possible we wouldn’t need to obtain a flood plain permit.‘’
“However, we’re still looking at the judge’s order, what options we may have and what other obstacles may exist before we decide on anything,‘’ she said. “The Doddridge County Commission is already at work on a new ordinance, so we’re likely to want to see that as well before moving forward.‘’
None of the county commissioners immediately returned messages.
EQT had argued that the county and the state Department of Environmental Protection granted permits, so the flood plain manager had no authority to revoke them. But Joye Huff, a landowner who was allowed to intervene in the lawsuit, said that when the Federal Emergency Management Agency pointed out the potential problems, the manager had no choice but to withdraw the David McMahon of the West Virginia Surface Owners Rights Organization represented Huff at the start of the litigation. He said EQT’s engineering consultant predicted that the earth-moving plans would cause flood waters to rise, but by less than 1 foot.
McMahon’s group hired other engineers who concluded it would raise the waters more than 1 foot.
Either way, McMahon said, the property owners should have had the chance to make that argument to the County Commission before the permit was issued.
Huff said the dispute over how her 10-acre meadow would be affected began four years ago, when EQT first proposed two wells. Over time, she said, that grew to four, then eight, then 12, ultimately covering seven of her acres.
“We have no concern with them drilling on our property,‘’ she said. “We understand they have the lease. That’s not the issue.‘’
Rather, she and about a dozen other farm owners are concerned about future flooding that could put both lives and property at risk.
“We did try to constantly discuss for the last four years our concerns,‘’ she said. “We just never could get them to come to the table.‘’
Huff’s farm has been in her family since 1863, she said, and she won’t just let it be destroyed.
“I have always felt like the big corporations forget about the human part and they don’t try to work with the community and the residents,‘’ she said. “They just want to drill and get their product out and leave. And we’re going to be the ones left behind with all the side effects.‘’
Gilmer County Family Court Report - 12.12.12
On Wednesday, December 12, 2012 Family Court Judge Larry Whited spent most of the day in Gilmer County.
• Three domestic violence cases were scheduled, with one being withdrawn prior to hearing and the remaining 2 being dismissed after the hearing.
• One modification was heard.
• One modification was dismissed.
• One status was heard in a divorce case.
• Two contempt hearings were dismissed.
• A final hearing was held in a divorce case, but no order has been entered yet.
• Two temporary hearings were held in divorce cases but no order has been received yet from those hearings.
Gilmer County Circuit Court Report - 12.13.12
On Thursday, December 13, 2012 Chief Judge Alsop appeared in Gilmer County to hear a couple matters.
• One fugitive from justice hearing was not heard but continued generally, being State of West Virginia vs. Kenneth Fraker.
A status hearing will be held in the matter on Tuesday, January 15, 2013 at 11:45AM.
He is represented by David Karickhoff of Sutton.
• Karickhoff also represented Elsie Marie Tingler who was before the Court for a bond revocation for failing her urine screen previously.
Judge Alsop denied reinstating her to bond and left her in the Central Regional Jail pending her trial on Tuesday, February 12, 2013.
• The oath of office was administered to Prosecuting Attorney Gerald B. Hough and Assessor Gary L. Wolfe.
G-otcha™: Two Lewis County Residents Enter Pleas of Guilty on Firearms Charges
Two Lewis County, West Virginia, residents entered pleas of guilty on December 14, 2012, in United States District Court in Elkins before Magistrate Judge John S. Kull.
LAWAN GADDY, age 24 and TIFFANY ROACH, age 23, entered pleas of guilty to Providing a False Statement to a Federal Firearms Licensee in the Acquisition of a Firearm on September 20, 2011.
GADDY, who is in custody pending sentencing, and ROACH, who is on bond, each face up to 10 years imprisonment and a $250,000 fine.
This case was prosecuted by Assistant United States Attorney Zelda E. Wesley and investigated by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Gilmer County Circuit Court Report – 12.12.12
On Monday, December 10, 2012 Chief Judge Jack Alsop presided over his regular monthly motion day in Gilmer County
• Prior to running through his document, Judge Alsop administered the oath of office to Gilmer County Magistrates, Carol Wolfe and newly elected Alton Skinner II.
• He also talked to 3 jurors who failed to appear for recent trials, and informed them that he would not hold them in contempt at this time, but to follow the instructions given to them by the Circuit Clerk as to when to report for jury duty.
• State of West Virginia vs. Abdul Kargbo
He waived extradition to Wisconsin where he was wanted after being released from the federal prison in Glenville, WV.
Authorities in Wisconsin have until Wednesday, December 19, 2012 at 4:00 PM to pick Kargbo up or Central Regional Jail will release him.
He was represented by Christopher Moffatt of Charleston.
• One juvenile was heard and reset for Monday, March 11, 2013 at 9:00 AM.
• Another one was heard and reset for Thursday, January 10, 2013 at 1:00 PM.
• State of West Virginia vs. John Robert Carder
He appeared for further arraignment after being indicted on Thursday, November 08, 2012.
He is represented by Christina Flanigan of Buckhannon and asked for his trial to be continued to the March, 2013 term.
• State of West Virginia vs. Rodney Singleton
He pled not guilty after his arraignment was completed.
He fired his court appointed attorney and retained Jerome Novobilski of Clay to represent him.
He will have a pretrial on Friday, February 08, 2013 at 9:00 AM and trial on Tuesday, February 26, 2013.
• State of West Virginia vs. Elsie Marie Tingler
She was before the Court for revocation of her bond, and after her attorney, David Karickhoff, failed to appear for her hearing Judge Alsop sent her to jail and later reset her hearing for Thursday, December 13, 2012 at 10:00 AM.
• State of West Virginia vs. Gerald A. Adkins II
He was before the Court asking to be released from Central Regional Jail because he had passed his urine screen.
Judge Alsop readmitted him to bond heretofore given and was released.
Adkins was represented by Daniel Grindo of Gassaway, but Daniel Armstrong stood in for Grindo in these proceedings.
• Judge Alsop also performed a marriage between Terra Mclntyre and Gary Ackley.
WV Supreme Court Seeks Tidier Appeals
The state Supreme Court says some lawyers need to do their homework.
The high court on Monday issued an administrative order Monday criticizing sloppy and frivolous appeals that include legal briefs filed without legal citations and appeals with only minimal arguments.
Chief Justice Menis Ketchum says the court is receiving numerous briefs “that you can’t make heads or tails out of.”
The court says appeals shouldn’t be filed unless a lawyer believes in good faith that a lower court committed an error.
The Charleston Daily Mail reports lawyers could receive warnings or risk having their cases thrown out if they do not do a better job.
West Virginia Redistricting Challenge May Seek State Supreme Court Opinion
West Virginia’s Supreme Court may be asked to help resolve a pending challenge of the state’s new congressional districts.
Both sides in a federal lawsuit targeting that redistricting support asking the state justices whether the new plan complies with the West Virginia Constitution. They weighed in with court filings this week.
The U.S. Supreme Court rejected arguments in September that the new map violated the U.S. Constitution.
The challenged map moved one county between two of the state’s three congressional districts.
Jefferson County’s commission sued, seeking an alternative map. Lawyer Thornton Cooper later joined the case.
The West Virginia Constitution requires compact congressional districts formed of contiguous counties. Jefferson’s district stretches across the state from the Ohio River to the Blue Ridge Mountains.
WV Judicial Hearing Board Order Says Judge Should Not Return to Bench
The West Virginia Judicial Hearing Board says a Putnam County family court judge should be suspended without pay until his term ends in December 2016.
The hearing board’s order is stiffer against Judge William Watkins III than recommended by state Office of Disciplinary Counsel during a hearing last week.
Judge Watkins is in trouble for his courtroom outbursts. He promised during last week’s hearing to get counseling in order for him to stay on the bench. He agreed to five recommended sanctions including counseling, being monitored and getting more training.
Click H E R E to Read the Order
But the Judicial Hearing Board, which conducted last week’s hearing, says in its order that’s not enough but instead Watkins should be censured “on each of the 24 violations of the Code of Judicial Conduct.“
He should be “suspended without pay until his present term of office ends December 31, 2016.“
The order says Watkins should also pay the cost for the investigation and prosecution of his case, which is about $18,000.
Watkins and the Office of Disciplinary Counsel have 30 days to respond to the hearing board’s order.
The state Supreme Court will consider the responses before deciding the next step. The matter could end up before the High Court for oral argument.
Watkins testified last week that he has made mistakes.
“I’d like have the opportunity to correct those mistakes and to prove that I can be an even better judge for Putnam County,“ he said.
The complaints date as far back as 2008.
In one case, when a defendant spoke out of turn, Watkins screamed, “...Understand that I will resign this bench and I will personally see to it that you never see a free day in your life. You understand that? You’re going to jail. I swear to God.“
In a second case, an angry Judge Watkins asked a woman appearing before him in court, “...Why are you shooting off your fat mouth?“ and said, “Shut up! You stupid woman.“
In several other cases, Watkins was so angry the comments he made were so distorted the recorder could not determine exactly what he was saying.
Ex-Coach Charged with Molesting Two More WV Boys
West Virginia State Police say a fired cheerleading coach has been charged with sexually abusing more male students.
Sgt. Michael Baylous says 31-year-old Amanda Jo Barker of Mannington was charged Monday with three counts of sexual abuse by a person of trust and one count of soliciting a minor by computer.
The Marion County Board of Education fired the North Marion High School freshman coach last month after she was charged with abusing a 16-year-old male.
Baylous says two 16- and 17-year-old boys have since come forward with new allegations.
Barker was arraigned in magistrate court on those charges and released Monday evening on a $100,000 bond.
Court officials say Barker hasn’t hired an attorney.
A woman answering a phone listing in her name said Tuesday it’s the wrong number.
Doddridge County: Landowner Rights Should Be Reconsidered
Most gas companies try to work with the owners of land on which they set up rigs to drill for natural gas and oil. They avoid disturbing the surface when possible and often try to compensate landowners for damage.
But drillers’ responsibilities in that regard can be very limited. If a landowner does not also hold title to the rights for minerals under his property, his leverage with gas and oil companies can be restricted severely.
West Virginia Supreme Court justices last week ruled against a landowner who had objected to a company’s plan to drill on his Doddridge County property. Concerned about damage to his land, he had asked the state Department of Environmental Protection to require the drilling company to alter its plan.
When the DEP approved the initial drilling plan, the landowner went to court.
Supreme Court justices ruled against the landowner, noting state law does not give those who own only surface rights to land the right to appeal drilling permits.
But in her written opinion on the matter, Justice Margaret Workman, backed by a unanimous court, urged the state Legislature to take another look at surface owners’ rights. Lawmakers should “consider whether surface owners should be afforded an administrative appeal” of such DEP decisions, Workman recommended.
She is right - though it needs to be emphasized altering the law at this stage of the gas drilling game could be difficult. Many mineral rights owners already have signed leases with drilling companies, which paid fees and agreed to royalty rates based on the cost of complying with existing law. Changing the rules now would be unfair, and possibly unconstitutional.
Still, Workman is right. Lawmakers should reconsider the rights of landowners who do not also own mineral rights for their property. Obviously, they will have to exercise great care in making any changes, however.
Clay County: Hiram Lewis Is Facing a Number of Charges
A trial date is set for Tuesday, January 15, 2013 for the former U.S. Senate candidate who is accused of shooting and wounding a man at his Clay County home earlier this year.
Hiram Lewis was formally arraigned Thursday morning in Clay County Circuit Court on charges of malicious wounding, domestic assault and wanton endangerment involving a firearm.
A not guilty plea was entered for him when he refused to do so.
Lewis is charged with shooting and wounding a man at a house in Procious in June.
Lewis claims it was his house and the victim was breaking in at the time he was shot, but the victim says it was his home and Lewis was just staying there.
A bond revocation hearing for Lewis will be held on Thursday, December 06, 2012 after additional charges were filed against him earlier this month.
He allegedly went to the home of Clay County Sheriff Randy Holcomb and threatened him, but Lewis says he just approached Sheriff Holcomb as a friend.
Lewis, a McDowell County native, has unsuccessfully run for Attorney General and U.S. Senate in the past.
Expert Says WV Should Close Salem Juvenile Facility, Judge Could Rule by End of Year
The fate of West Virginia’s only high-security juvenile corrections facility could be decided by the end of the year.
Media outlets report that an expert witness told a judge Tuesday that the West Virginia Industrial Home for Youth in Salem should be closed.
Paul Demuro’s testimony came during a hearing in Kanawha County Circuit Court on a lawsuit filed by Mountain State Justice.
The lawsuit alleges that inmates at the Salem facility are illegally strip searched, placed in solitary confinement and denied adequate access to exercise and educational materials.
The West Virginia Supreme Court appointed Mercer County Circuit Court Judge Omar Aboulhosn to hear the case.
Aboulhosn says he wants to issue a ruling by the end of the year.
West Virginia ended solitary confinement at juvenile facilities earlier this year.
Family Court Judge Apologizes for Conduct
A Putnam County family court judge accused of misconduct has apologized and agreed to pay nearly $18,000 in costs.
William Watkins appeared before the state Judicial Hearing Board on Tuesday on charges filed by the state Judicial Investigation Commission.
Media outlets report Watkins admitted to charges that he delayed rulings, failed to enter domestic violence orders into the state’s tracking system and screamed and cursed at litigants.
Watkins and Judicial Counsel Rachael Fletcher Cipoletti agreed to proposed sanctions, including the costs of the investigation and court proceeding.
A proposed 90-day suspension without pay would be stayed while he addresses deficiencies and undergoes counseling and judicial training.
The hearing board will make its recommendation to the state Supreme Court.
Man Pleads Guilty in West Virginia Bath Salts Case
The owner of two north-central West Virginia shops that sold illegal bath salts pleaded guilty to two federal charges Monday and could face up to 30 years in prison.
Jeffrey Paglia, age 48, of Clarksburg appeared Monday before U.S. Magistrate John Kaull in Clarksburg.
Paglia pleaded guilty to one count of drug conspiracy and one count of structuring monetary transactions to evade reporting requirements on income from his “Hot Stuff and Cool Things” stores in Buckhannon and Clarksburg.
Paglia could get as many as 10 years in prison and up to $500,000 in fines when sentenced on the monetary transactions charge, and as much as 20 years and a fine of up to $1 million on the drug conspiracy charge. His sentencing has not yet been scheduled.
He also agreed to forfeit property, including a dozen real estate parcels, five vehicles, two motorcycles, an excavator, a forklift and an embroidery machine. Prosecutors are also seizing more than $730,000 from several accounts in Paglia’s name, including funds seized from his attorney.
In exchange, prosecutors agreed to drop additional charges and agreed not to prosecute Paglia’s girlfriend, identified in court documents by the initials M.C.
Paglia and his companies, Jemrose Inc. and Pag-Corp Inc., were initially indicted on eight counts of drug conspiracy and two counts of maintaining a drug-involved property, as well as the monetary transactions charge.
Two of Paglia’s former employees have pleaded guilty to a drug conspiracy charge and await sentencing, but Jemrose manager John Skruck is still headed for trial in February.
Authorities shut down the Buckhannon and Clarksburg stores in April, calling them a major distributor of bath salts in north-central West Virginia.
The U.S. Drug Enforcement Agency has listed bath salts in the same category as heroin and LSD.
Last fall, the agency banned the possession of bath salts containing two chemicals, but authorities say manufacturers are constantly changing the composition of their products to skirt the law.
At least 30 states, including West Virginia, have outlawed synthetic drugs, hallucinogens and stimulants.
G-otcha™: Indictments Returned by Federal Grand Jury for a Braxton County Man
A Braxton County man was named in Indictments returned by a federal grand jury sitting in Clarksburg, West Virginia, on November 07, 2012.
ISAAC JACKSON, age 24, of Sutton, West Virginia, was named in a two-count Indictment charging him with one count of Assaulting a Federal Officer/Employee and one count of Assault on Federal Property, on July 13, 2012, at the Bee Run recreation area on Sutton Lake.
If convicted, JACKSON faces up to 8 years imprisonment and a $250,000 fine on the first count and 6 months imprisonment and a $5,000 fine on the second count.
The case will be prosecuted by Assistant United States Attorney Andrew R. Cogar and was investigated United States Army Corp of Engineers - Park Rangers.
It should be noted that the charges contained in the Indictment are merely accusations and not evidence of guilt, and that each defendant is presumed innocent until and unless proven guilty.
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