Webb v. Fury

Decision Date13 July 1981
Docket NumberNo. 14975,14975
Citation167 W.Va. 434,282 S.E.2d 28
Parties, 11 Envtl. L. Rep. 20,934, 7 Media L. Rep. 1960 Rick WEBB, Braxton Environmental Action Programs, Inc., and Mountain Stream Monitors, v. The Honorable William L. FURY, Judge, Upshur Circuit Court.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The right to petition the government embodied in the First Amendment to the United States Constitution is also protected by article III, section 16 of the Constitution of West Virginia.

2. While the denial of a motion to dismiss is not usually an error for which prohibition will lie, prohibition will be used to examine the propriety of such a ruling when, as here, the ruling invades the unique constitutional guarantee of the right to petition the government for a redress of grievances contained in the First Amendment to the United States Constitution and article III, § 16 of the Constitution of West Virginia.

3. Prohibition will lie to prohibit a case from proceeding to trial when the remedy of appeal is manifestly inadequate to protect against the chilling effect of allowing a suit to proceed because the complaint, as a matter of constitutional law, contains insufficient allegations to warrant an interference with a citizen's right to petition his government.

4. The people's right to petition the government for a redress of grievances is a clear constitutional right and the exercise of that right does not give rise to a cause of action for damages.

5. Conduct which prevents a party from participating in the policy-making functions of the executive, legislative, or judicial branches of government is not petitioning activity protected by the right to petition the government and such conduct may give rise to a cause of action for damages.

6. An allegation that a particular petitioning activity is malicious will not give rise to a cause of action for damages because the right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so.

7. The right to petition includes, among other things, activity designed to influence public sentiment concerning the passage and enforcement of laws as well as appeals for redress made directly to the government.

Robert M. Bastress, Jr., Charles R. DiSalvo, Gene R. Nichol, Jr., Morgantown, David Grubb, Charleston, for petitioners.

Steptoe & Johnson, Herbert G. Underwood, Irene M. Keeley, Clarksburg, Donald H. Vish, Lexington, Ky., for DLM Coal Corp.

Guy R. Bucci, Jennifer F. Bailey, Bucci & Ellis, Charleston, for West Virginia Trial Lawyers Ass'n, amicus curiae.

Norman L. Dean, Jr., Washington, D. C., for West Virginia Wildlife Federation and Nat. Wildlife Federation, amicus curiae.

M. Carolyn Cox, Mark L. Gerchick, Drake Cutini, Michael S. Helfer, William J. Kolasky, Jr., Wilmer & Pickering, Washington, D. C., for American Civil Liberties Union; Consumers Union of the United States, Inc.; League of Women Voters of the United States; Natural Resources Defense Council, Inc., amicus curiae.

L. Thomas Galloway, Washington, D. C., for Center for Law and Social Policy, amicus curiae.

Jerry Jackson, Sanford Sagalkin, Anthony C. Liotta, Jacques B. Gellin, Dept. of Justice, Washington, D. C., amicus curiae.

McGRAW, Justice:

The petitioners, Rick Webb, Mountain Stream Monitors, and Braxton Environmental Action Programs, Inc., seek a writ of prohibition under the original jurisdiction of this Court to prevent the Circuit Court of Upshur County from proceeding with a defamation action filed in that court against the petitioners by DLM Coal Corporation (DLM). The petitioners do not contend that the circuit court lacked jurisdiction to deny the motion to dismiss. Rather they assert that a ruling of the circuit court which permits DLM to proceed with discovery and with the lawsuit below constitutes a substantial legal error in contravention of the constitutional mandate guaranteeing the rights of petition and of freedom of speech, and that prohibition will lie to restrain the enforcement of the ruling. After reviewing the outstanding briefs filed by both parties and by amici curiae, and after exhaustive research by the Court, we find merit in the defendant's constitutional arguments and, accordingly, award the writ as prayed for.

The facts of this proceeding are undisputed and simply distilled. DLM Coal Corporation is a West Virginia corporation engaged in the business of mining coal in Upshur County. Rick Webb is an individual living in Braxton County. Webb is the principal managing agent of Braxton Environmental Action Programs, Inc., a non-profit West Virginia corporation with the stated purpose of ensuring that coal development is conducted with full regard for creation and the rights of future generations. Webb is also an active, directing member of Mountain Stream Monitors, an unincorporated association concerned with the effects of coal mining on water quality.

On July 1, 1980, DLM filed an action in the Upshur County Circuit Court against Rick Webb, Mountain Stream Monitors, and Braxton Environmental Action Programs, Inc., charging them with libeling DLM and damaging its commercial interests through a series of communications the petitioners made to the Environmental Protection Agency and the Office of Surface Mining and through a newsletter published by Mountain Stream Monitors. The petitioners moved to dismiss the action under W.Va.R.Civ.P. 12(b)(6) for various technical grounds not addressed here, and for failure to state a claim upon which relief could be granted. They contend that these communications are constitutionally privileged. The trial court denied the motion to dismiss 1 and a motion to treat the issue on summary judgment. The lower court also refused to certify to this Court the questions raised by the motion to dismiss and ordered the parties to go forth with discovery. We granted a rule to show cause.

The alleged tortious communications with federal agencies consist of an administrative complaint lodged with the Office of Surface Mining (OSM), United States Department of the Interior, on September 13, 1979, and a request for an evidentiary hearing before the United States Environmental Protection Agency (EPA) dated October 12, 1979. According to DLM's complaint, these communications falsely asserted that DLM was in violation of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.A. §§ 1201 et seq., and of the Clean Water Act, 33 U.S.C.A. §§ 1251 et seq., respectively.

Petitioner Webb filed a citizen's complaint against DLM under provisions of the Surface Mining Control and Reclamation Act which requires OSM to conduct an inspection whenever any person provides information which gives rise to a reasonable belief of a violation of the Act and entitles the person providing the information to accompany the federal inspectors on the inspection. 30 U.S.C.A. § 1252(e)(2). On September 24, 1979, Webb and two OSM inspectors met with DLM employees to test several seeps in the vicinity of DLM operations. Virtually all of the testings revealed that water leaving the general area of DLM operations contained either too much acid or iron under the limits established by federal regulations. 2 However, the OSM inspectors could not conclusively establish that the water in the tested seeps contained surface run-off from areas mined by DLM. Although one seep definitely carried polluted water from an area worked by DLM, all of that area had been mined and regraded before May 3, 1978, the effective date of the federal regulatory program. As a result, OSM decided to take no enforcement action against DLM and informed Webb and DLM of the reasons for this decision. The petitioner chose not to exercise his statutory right to request administrative review of the decision.

At approximately the same time that OSM was investigating the administrative complaint, EPA had taken under consideration a DLM request to consolidate its various permits for water discharges from existing sources under the Clean Water Act. The Act establishes a program for issuing permits by EPA to individual point sources discharging various substances into the waters of the United States only "after opportunity for public hearing." 33 U.S.C.A. § 1342(a)(1). Pursuant to this provision, EPA has established a procedure for public participation in the permit-issuing process. Under the regulations, EPA issued a proposed permit to DLM on September 14, 1979, which would become effective on October 14, 1979, unless an adjudicatory (i. e., evidentiary) hearing was granted by the agency. 3 Petitioner Webb, acting for Braxton Environmental Action Program, Inc., received notice of the proposed permit on October 5, 1979, and by letter dated October 12, 1979, requested an evidentiary hearing. Although there is nothing in the complaint to indicate whether an evidentiary hearing was held, the permit became effective on October 14, 1979.

Under the Clean Water Act and EPA regulations, EPA is also required to impose more stringent effluent limitations on discharges from new sources. EPA considers, among other things, whether new seams will be mined, new drainage areas for discharges will be used, or new surface areas will be disturbed. 40 C.F.R. § 434.11(i) (1979). EPA concluded in March of 1980, that certain operations covered by the DLM permit might constitute new sources. As a result, EPA determined that the "existing source" permit granted DLM may have been inadequate and the agency invoked a procedure to withdraw portions of the permit.

Before the withdrawal became effective, DLM obtained a temporary restraining order in federal district court, prohibiting EPA from withdrawing or revoking any portion of the permit. A month later, EPA and DLM settled this action by stipulation in which EPA agreed to...

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