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Webb v. Fury

Citation: 11 ELR 20934
No. No. 14975, 282 S.E.2d 28/(W. Va., 07/13/1981)

The West Virginia Supreme Court holds that a complaint made by petitioners to the Office of Surface Mining of possible violations of the Surface Mining Control and Reclamation Act, a request made to the Environmental Protection Agency for an adjudicatory hearing under the Federal Water Pollution Control Act, and statements published in a newsletter regarding pollution from coal mines are protected under the First Amendment and are immune from liability in a libel action. The court finds that the clear intent of the controlling doctrine, the Noerr-Pennington doctrine, is to confer immunity upon those persons attempting to induce the passage or enforcement of the law or to solicit government action. This immunity exists despiteany indirect injury caused to others and regardless of the possibility that the actions were induced by actual malice. The "sham" exception to the immunity doctrine has no application to direct lobbying, is limited to situations where the intent of the conduct is to deny citizen access to the political or judicial process on the pretext of soliciting policy changes, and does not apply in this case. Petitioners' statements to the agencies were encouraged by the public participation provisions of the statutes ad clearly were not intended to thwart the coal mine operator's input into the political process. The court finds that the immunity offered by the First Amendment extends as well to the content of the newsletter, because the privilege covers indirect activity designed to influence public sentiment concerning the passage and enforcement of the law. Moreover, the federal statutes governing pollution from coal mines explicitly articulate a congressional policy favoring public debate and participation in the administrative process.

Counsel for Petitioners
Robert M. Bastress Jr., Charles R. DiSalvo, Gene R. Nichol
W. Virginia U. College of Law
P.O. Box 1295, Morgantown WV 26505
(304) 293-0111

David Grubb
1324 Virginia St. E., Charleston WV 25301
(304) 346-5891

Counsel for Party-in-Interest DML Coal Co.
Herbert G. Underwood, Irene M. Keeley
Steptoe & Johnson
6th Floor, Union Nat'l Center E., Clarksburg WV 26301
(304) 624-8000

Donald H. Vish
Tarrant, Combs & Bullitt
1212 First Security Plaza, Lexington KV 40507
(606) 255-6824