Published: November 26, 2009 10:12 pm      

Judge seeks advice in desecration case

LOGAN — A Logan County judge is asking for advice from the state Supreme Court before hearing a long-simmering lawsuit over a pipeline company’s bulldozer damage to a private cemetery that served a historically black coal camp community.

Relatives of some of the dozens buried in Crystal Block Cemetery near Sarah Ann say a driver for General Pipeline Construction Co. of Amma plowed through the unfenced hillside cemetery in 2004, shoving aside head stones and metal markers while building a natural gas pipeline road for Pittsburgh-based EQT.

But the state’s highest court has never ruled on such a case before, and Circuit Judge Roger Perry has submitted certified questions seeking guidance on whether there are grounds for a lawsuit, what elements the plaintiffs must prove and what damages could be awarded.

At issue are legal questions relating to the age of the cemetery, which state law could potentially protect it and an apparent contradiction in the law that protects both certain gravesites and resource-extraction operators working on private land.

The lawsuit, filed in 2006, accuses General Pipeline and EQT of negligence, nuisance, trespass, desecration of grave sites and deliberate infliction of emotional distress.

General Pipeline did not immediately respond to telephone messages about the case.

EQT spokesman Kevin West said the company wouldn’t purposefully disturb a cemetery, but there is “no proof or indication that any of the grave sites had been disturbed.”

“Our defense all along has been ... because of the nature of the condition of the property, there was no evidence that our contractor would have know it was a cemetery,” he said.

No trial date has been set, but plaintiffs’ attorney Kevin Thompson said he expects the case to be heard next year.

“Anytime a judge can do anything that can prevent a retrial of a case, it’s a good thing,” he said when asked about Perry’s questions, filed in Logan County last week.

There is no indication when the justices will consider the matter. The court recessed for the year on Wednesday, so the questions could not be addressed this year, spokeswoman April Harless said.

The Crystal Block desecration was discovered by James Olbert, whose father Daniel is buried there, but continued while two more roads were built. Resident Bud Baisden pleaded with a crew member to stop, the lawsuit says, but the worker used racial slurs in describing who was buried there, and the bulldozing continued.

“There is no way that they did not know that was a cemetery. By all the headstones and grave markers, they knew,” said Olbert, 59, whose father’s headstone had been shoved aside.

Although the cemetery was unfenced, Olbert said he and others visited every Memorial Day to clean up and lay flowers. Now, as four-wheelers and dirt bikes tear through and around the cemetery, the descendants are frustrated.

“It’s really very nerve wracking and a lot of stress to realize nothing has been done. It’s still the way they left it,” he complained. “I would like for them to be punished for what they have done. I think any human being would be upset about something like this.”

A 2007 survey conducted for the plaintiffs by Cultural Resource Analysts of Hurricane found 22 marked and unmarked graves, and five displaced markers within an 87- by 59-foot area.

Investigators said they found fragments of metal markers in the bulldozed road, a displaced granite marker and a displaced marble marker indicating the grave of an 36-year-old Korean and World War II veteran who died in 1962.

The cemetery was on land long owned by Cole & Crane, a real estate company that had leased property to coal and gas operators since the early 1900s.

West Virginia coal companies enticed many black laborers from the South to work their mines in the 1920s, and they lived in a segregated coal camp about a mile away from the white camp.

For 80 years, the lawsuit says, the community “marched up the mountain to honor their dead on that tiny, steep, but sacred cemetery. ... Entire families with no one left to mourn or honor their memories are interred there.”

Perry says a state historic preservation law “seemingly provides protection to some gravesites in certain circumstances and not others,” but he believes the lawsuit can proceed because the cemetery was privately maintained and less than 50 years old.

The last known burial was in 1965, the judge said, even though some graves are known to be much older.

But Perry’s questions for the court also raise the issue of whether a cemetery can be called one if it’s not fenced or adequately maintained.

He cites case law from other states that found a cemetery should have clearly marked boundaries distinguishing it as a place for the dead, and that it was “identifiable as a cemetery” before the defendants entered it.

Perry also points to an apparent conflict in state law: While narrow protection is provided to some graves, he says, the laws also specifically protect property owners and natural resource industries by exempting their “non-intentional” acts of desecration from liability.

The Legislature is reviewing state laws protecting cemeteries, but the review involves cemeteries located near coal mining sites.