Lawyer: Water tank dispute is not misuse of eminent domain: (Beckley WV) Register-Herald, 1/26/06

By Fred Pace

Rick Staton, a Mullens attorney representing the Eastern Wyoming County Public Service District in a lawsuit involving Bud Mountain land owners, says he wants to clarify inaccurate or misleading information about the case.

“This is not an eminent domain case in the context of the U.S. Supreme Court ruling this summer, nor the legislation the House of Delegates recently adopted,” Staton said. “Those issues involved taking private property for a private purpose.”

The water battle revolves around the PSD’s desire to construct a $14.7 million public water system in Mullens, Corinne, Bud, Black Eagle, Wyco and surrounding areas. Land owners that may lose property have accused the PSD of abusing eminent domain powers.

Jo Ann Lester, a family member of one land owner, also claims the PSD was not responding to Freedom of Information Act requests for information about surveys done on proposed sites.

The PSD had petitioned Wyoming County Circuit Court for right of entry to three parcels of land owned by Annie Hagy, Larry and Karen Pressley, and the heirs of Pink Byars. Lester said the land owners reached an agreement several months ago, giving engineers the right to survey proposed sites for the tank and tower.

“Taking someone’s land is taking someone’s land,” Lester said. “This is an eminent domain case in our opinion.”

Staton says the law allows for taking land for a public purpose.

“This matter involves acquiring property for a public purpose, which is providing water to an unserved area inhabited by dozens of families on Bud Mountain,” Staton said. “Many are currently trucking water into their homes. Ironically, many of the litigants in this case do not live on Bud Mountain and do not have to truck their water. The tank is necessary to providing water to these families. Blocking construction of the tank blocks these families’ access to potable water. The acquisition of a part of any property for a water tank has to be proved to the court to be necessary and for a public purpose.”

Staton said Lester’s claim that the PSD is not answering FOIA requests is incorrect.

“The PSD is not hiding the survey results,” Staton said. “In fact, a previous order entered last year which compromised the right of entry on the property specifically authorizes the PSD to share the results with the other parties. They have already been given much information. Further, court rules governing lawsuits would already require that. I know it’s sexier to report that people are withholding information, but that’s not the case. The parties who spoke to you know that they are getting the survey results, and in fact have already received some engineering data.”

Staton said a recent FOIA request was for information that belongs to the engineers, not to the PSD.

“It is not information the PSD has, nor has a reason to have,” he said.

Staton said the sole purpose of the motion last week was to clarify the PSD’s obligations to respond to FOIA requests vs. its responsibilities to provide information to and through attorneys in a pending litigation.

“While FOIA allows information to be requested and exchanged between parties and if applicable their attorneys, rules of the court regarding pending litigation require the information to be exchanged only in the context of that litigation,” Staton explained. “Further, court rules prohibit parties or their attorneys from contacting either side except through the litigation process. In fact, it is technically an ethical violation for me to respond to the FOIA requests on behalf of the PSD while the litigation is pending, unless I do so directly to their attorney. These requests are being made by the litigants, not their attorney, and many times without even their own attorney’s knowledge.”

Staton added it is already public information that most of the “22 alternative sites” land owners claimed were better for the new water tank and tower have already been determined by engineers to not be suitable sites for the project.

“They have provided no engineering reports to the contrary,” he said. “It is wrong for anyone to portray that the PSD is looking at only two of more than over two dozen potential sites for the tank. In fact, the PSD would be abrogating its responsibility by choosing a site that is not good and which requires costly litigation to get the tank placed there. Does anyone reasonably expect that the PSD sat down in some dark room and said, ‘We have better places for the tank we can get more cheaply and faster, but let’s go after these two?’”

Staton says the current litigation was to request access to the property solely to determine whether a portion of either of the properties is suitable for location of the tank.

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