No Legal Right To Physical Entry Is Required To Show 'Injury In Fact'

Thursday, August 30, 2018 8:03 am
September 2018 - Volume 46 Number 9

The D.C. Circuit held that environmental groups had standing to challenge an historic battlefield’s de-listing from the National Register of Historic Places because they appreciated the view from afar, even though they weren’t allowed to enter the privately-owned battlefield.

Facts: In 2009, environmental and historical preservation groups succeeded in obtaining Blair Mountain Battlefield’s listing in the National Register of Historic Places. Blair Mountain, in Logan County, West Virginia, is the site of the largest armed labor conflict in American history. In 1921, approximately 5,000 West Virginia coal miners squared off against about 3,000 armed men hired by the coal companies. They fired machine guns and dropped bombs, causing many casualties. After several days, President Harding sent federal troops to end the Battle of Blair Mountain, and the coal miners surrendered.

Blair Mountain is still of interest to coal companies, several of which own the battlefield and adjoining properties. There are currently two active permits that encompass the 1600-acre battlefield area. Surface mining is proceeding under those permits, and, although no surface mining has occurred within the boundaries of the battlefield, it is occurring about 1,000 meters away.

The battlefield’s listing on the National Register of Historic Places triggered several protections for the property, including the minimization of adverse effects of surface mining. Only a few days after the battlefield was listed, the Keeper of the National Register of Historic Places (Keeper) de-listed it because there had been “prejudicial procedural error in the listing pr[..]