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Another West Virginia Supreme Court Justice Declines to Step Aside in Another Natural Gas Case

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Newly appointed West Virginia Supreme Court Justice Evan Jenkins, a former congressman, has refused to step aside from a natural gas case. Photo: Bill Clark, CQ Roll Call

A lawyer who represented new Supreme Court Justice Evan Jenkins is on the legal team representing the natural gas giant Antero. The opposing side asked Jenkins to recuse himself, but he said no.

In another recusal controversy involving the West Virginia Supreme Court and the natural gas industry, a newly appointed justice declined to step aside from hearing a case on Tuesday, despite the fact that he was personally represented by a lawyer now representing a company involved in the proceeding.

Former U.S. Rep. Evan Jenkins hired Huntington lawyer Ancil Ramey, a former court clerk who often appears before the justices, to appear on his behalf last month when two lawyers tried to block Jenkins’ appointment to the court by arguing that he didn’t meet state constitutional requirements for the post.

Ramey won that case, and Jenkins was sworn in on Oct. 1.

Tuesday was the first day Jenkins was scheduled to hear oral arguments, and the second case on the docket was a major lawsuit filed by a group of Harrison County residents against Antero, West Virginia’s largest natural gas producer, alleging that the company is making life in their community unbearable.

Among the attorneys representing Antero: Ancil Ramey.

On Tuesday, Jenkins turned down a motion filed by the residents asking him to disqualify himself from the Antero case because of Ramey’s involvement in ensuring Jenkins got his seat on the Supreme Court.

In a one-page memo made public just before court was to begin for the day, Jenkins said he “had no prior relationship” with Ramey, “the representation was brief, and it has terminated.”

“Therefore, I find no reasonable grounds requiring my recusal,” Jenkins wrote.

The court has faced several recusal controversies in recent years.

Just weeks after taking office in 2017, Justice Beth Walker voted to rehear and then to overturn a previous ruling over how lease payments from gas producers to gas owners are calculated. Walker denied a motion to disqualify herself based on her husband’s stock holdings in energy industry companies. She said her husband had sold the shares before the case was argued.

Years earlier, then-Justice Brent Benjamin refused to recuse himself from hearing an appeal involving Massey Energy Co., even though its CEO at the time, Don Blankenship, had spent $3 million on a campaign against Benjamin’s opponent in the 2004 election. That case went all the way to the U.S. Supreme Court, which ruled in June 2009 that Benjamin should have stepped aside. Walker defeated Benjamin in the 2016 election.

The Jenkins controversy also comes as West Virginia’s Supreme Court faces a continuing crisis over spending — including allegedly using state cars for private trips and lavish office renovations that included a $32,000 couch — that has touched all five justices.

One justice, currently suspended, is on trial in federal court, contesting criminal charges that include fraud and obstruction; another justice resigned and then pleaded guilty to wire fraud; and a third retired after being impeached, but alleged the House GOP leadership was trying to take over another branch of government. A fourth was publicly reprimanded by the state Senate after an impeachment trial, but denied wrongdoing and avoided the more serious punishment of removal from office. The fifth faces an impeachment trial this fall, and has vowed to fight removal from office.

Jenkins was appointed to fill the seat of Robin Davis, the justice who retired after being impeached.

Attorneys for several Harrison County residents filed a motion last week urging Jenkins to not take part in the Antero matter.

“Justice Jenkins presiding over a case wherein his attorney is representing the respondents Antero raises reasonable questions about impartiality and has an appearance of impropriety which requires Justice Jenkins disqualify himself from this matter,” said the motion from Anthony Majestro, lawyer for the residents.

In a response filing on behalf of Antero, Ramey said that disqualification of Jenkins was not necessary, because Ramey’s representation of him had ended before Jenkins officially joined the court. The response also said that while Ramey helped write Antero’s briefs in the natural gas case, he was not the lead lawyer and would not be taking part in the oral arguments.

In the case, residents in the Cherry Camp area of Harrison County are appealing a lower court decision that threw out their lawsuit against Antero. The residents sued over a variety of natural gas production activities they argue create a nuisance, including unbearable traffic, “constant dust” that hangs in the air and settles on homes and vehicles, disruptive heavy equipment noise, and bright lights that shine into their homes day and night.

Antero attorneys say the company has only done what was reasonably necessary under its leases to extract gas, and that those operations don’t interfere with the residents’ use of their property. Antero lawyers said a panel of lower court judges was right when it threw out the case.

Hundreds of similar cases are pending in West Virginia courts, and the eventual ruling in the matter before the Supreme Court will likely set a precedent.

The issues raised in the cases are of growing concern in West Virginia, as the state’s natural gas industry continues to boom.

While Jenkins didn’t recuse himself, another new justice, Tim Armstead, did. It was not clear why Armstead recused himself from the Antero case, although, previously, Armstead, a former state House of Delegates speaker, worked as an attorney for a different natural gas company. Armstead was appointed to the court by Gov. Jim Justice at the same time as the governor appointed Jenkins.

No party filed a motion asking Armstead to disqualify himself, a court spokeswoman said. Armstead offered no explanation in a one-sentence memo to the court clerk.

His disqualification came just moments before the case was to be argued, so there was no time to find a replacement judge, a process that is allowed in West Virginia on a case-by-case basis. The residents asked that the argument be rescheduled for a later date, and the court agreed.

The seats held by Jenkins and Armstead are on the ballot in West Virginia’s general election next month. Both men are running.

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network. It was originally published by ProPublica
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A High-Speed Internet Boondoggle is Now a Campaign Issue in Kentucky

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Gov. Matt Bevin is pictured in 2015. Photo: Jacob Ryan

Candidates for governor of both parties are using Kentucky’s long-delayed and over-budget statewide internet project to bash Gov. Matt Bevin, following a jointly published report by the Courier Journal and ProPublica.

KentuckyWired — a bipartisan plan pushed by former Democratic Gov. Steve Beshear and Republican Rep. Hal Rogers — promised to bring improved broadband internet connectivity to the state’s farthest corners. But it is years behind schedule and more than $100 million over budget.

Bevin’s Democratic opponents in the governor’s race laid blame with the current administration.

“The governor has damaged the project with his lack of commitment to keep it on schedule,” House Minority Leader Rocky Adkins, D-Sandy Hook, said in an emailed statement. “In fact, it will cost the state more to get out of the contract than if we continue. In order to go the last mile and complete this project, we need to look at successful models in other states and bring new partners to the table.”

Representatives for Bevin and his technology chief, Chuck Grindle, did not respond to multiple requests for comment on the report, which highlighted dissent in the Republican administration’s approach to salvaging the troubled KentuckyWired project.

Democratic candidate and former state Auditor Adam Edelen, who has made improved broadband connectivity part of his platform in the governor’s race, said in an emailed statement that Bevin “doesn’t care” enough to fix the project.

“As governor, I will prioritize building a real system to provide broadband to the hundreds of thousands of Kentuckians who still lack access, whether in the hills of eastern Kentucky or Southern and Western Jefferson County,” Edelen said. “It must be done through partnership between the public and private sector, but that doesn’t mean pushing a half-baked plan that leaves taxpayers holding the bag.”

The campaign manager for Attorney General Andy Beshear, the son of the former governor, called for “working together across party lines.”

“As governor, Andy’s first step will be evaluating the KentuckyWired program in a nonpartisan way focused on both its costs and potential benefits for our families,” campaign manager Eric Hyers said in an emailed statement. “From there, he can keep what’s working and change what isn’t.”

A spokeswoman for Rogers, however, issued an emailed statement last week defending Bevin’s stewardship.

“With any public-private project of this magnitude, delays and challenges are to be expected,” the statement said. “Since Gov. Bevin inherited this project, he has worked diligently to comb through the unexpected problems and carefully balanced rising expenses with future benefits.”

Wednesday’s Courier Journal-ProPublica report underscored warnings that Beshear administration officials received about likely roadblocks.

Despite these, KentuckyWired moved ahead with what experts have said is an unrealistic three-year construction schedule for the project that saw the state accept most of the risk for the public-private partnership.

In his statement, Rogers described KentuckyWired as the “only path” to affordable, high-speed internet for his constituents in eastern Kentucky.

But state Rep. Robert Goforth, R-East Bernstadt, a challenger to Bevin for the Republican Party’s nomination for governor, disagreed.

In an interview with the Courier Journal, Goforth said Bevin should have killed the project years ago. He said Bevin has much to learn from a broadband project in Jackson County, which Goforth represents.

The Kentucky-based nonprofit Peoples Rural Telephone Cooperative used federal stimulus money to bring high-speed fiber-optic lines within reach of every home and business in Jackson and Owsley counties, the Courier Journal and ProPublica reported.

“If Jackson County can do it, the rest of Kentucky should be able to follow their example and be able to duplicate what they have done to be able to provide the fastest internet service to one of the most rural communities in Kentucky,” Goforth said. “We can do this.”

State Rep. Lynn Bechler, R-Marion, described as “marvelous” the job Peoples Rural and other similar cooperatives and rural providers have done.

He said he wished the Peoples Rural model could be followed in his area of western Kentucky, where residents such as Christy Hardison say they pay upward of $120 a month for unreliable satellite internet service, the only available option.

Bechler, co-chairman of the Program Review and Investigations Committee, which is investigating KentuckyWired, reiterated his call for a halt to the project.

To solve the problem of poor rural broadband access, Bechler proposed the creation of a state incentive program to encourage more projects like the one in Jackson County.

Keith Gabbard, head of Peoples Rural, told the Courier Journal that a state-level program, similar to Tennessee’s new Broadband Accessibility Grants, would encourage rural providers like his to expand service.

“The state doesn’t have to build their own network that way,” Gabbard said. “People that have already been doing that work can do a little more of it and would have an incentive to expand into areas that, it appears, the bigger companies are not going to build fiber to.”

Meanwhile, a longtime KentuckyWired skeptic, state Sen. Chris McDaniel, R-Taylor Mill, said he’s still waiting for the first section of the state-owned network to operate.

The project’s overseers said in December that the first loop, an area that includes Frankfort, Lexington, Louisville and northern Kentucky, was nearly ready to be turned on.

Phillip Brown, then head of the state authority in charge of KentuckyWired, promised “very good news” in the first quarter of 2019.

“I’m still waiting to see the press release on that happening,” McDaniel told the Courier Journal. “This thing is a mess and it’s going to continue to be a mess. I don’t know where it ends.”

This article was produced in partnership with the Louisville Courier Journal, which is a member of the ProPublica Local Reporting Network. It was originally published by ProPublica.

This story is part of an ongoing investigation into what went wrong with KentuckyWired. Sign up for the Miswired newsletter to receive updates in this series as soon as they publish.

Reach reporter Alfred Miller at amiller@gannett.com or 502-582-7142. Follow him on Twitter. Support strong local journalism by subscribing today: courier-journal.com/subscribe.

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DOJ Files Suit Against W.Va. Governor’s Family Companies Over Mine Violation Debts

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West Virginia Governor Jim Justice at a bill signing ceremony in 2019. Photo: Jesse Wright/West Virginia Public Broadcasting

This article was originally published by the Ohio Valley ReSource.

The U.S. Department of Justice has filed a civil lawsuit against 23 coal companies owned by the family of West Virginia Gov. Jim Justice, seeking more than $4.7 million in unpaid fines and fees for mine safety and health violations.

The delinquent fines were brought to light by investigations by NPR and the Ohio Valley ReSource as the Justice companies’ overdue debts ballooned from just under $2 million in 2014 to more than $4 million in 2018.

The lawsuit was announced Tuesday by U.S. Attorney Thomas Cullen of the Western District of Virginia and David Zatezalo, the head of the Mine Safety and Health Administration, or MSHA.

In a news release, the DOJ said the 23 companies named in the lawsuit incurred nearly 2,300 mine safety and health violations over the last five years. According to a 2019 financial disclosure filed with the West Virginia Ethics Commission, all 23 companies are owned by the Justice family.

The civil complaint says the companies failed to pay nearly $4 million in penalties associated with those violations.

The DOJ said the Justice-owned companies ignored multiple demands by MSHA, the Department of Treasury, and the U.S. Attorney’s Office to pay the delinquent debts.

“As alleged in the complaint, the defendants racked up over 2,000 safety violations over a five-year period and have, to date, refused to comply with their legal obligations to pay the resulting financial penalties,” Cullen stated in the news release. “This is unacceptable, and, as indicated by this suit, we will hold them accountable.”  

“MSHA stands with the Department of Justice in seeking to hold mine operators responsible for the penalties they owe,” Zatezalo said in the same release. “Failure to pay penalties is unfair to miners who deserve safe workplaces, and to mine operators who play by the rules.”

Representatives for the Justice companies and the governor’s office did not immediately respond to a request for comment.

ReSource Investigation

Last month, an Ohio Valley ReSource analysis of federal mine safety data found that the Justice family companies owed $4.3 million in delinquent debt for mine safety violations. That meant the Justice companies had by far the highest delinquent mine safety debt in the U.S. mining industry. And it was also far more than the companies owed when Justice ran for governor in 2016, when he pledged to make good on such debts.

In 2016, an investigation by NPR, the ReSource and partner station West Virginia Public Broadcasting found that Justice’s mines owed $2.6 million in overdue mines safety fines, as well as millions more in unpaid tax debt.

Then-candidate Justice said those debts would be paid.

“When it all really boils right down to it we’re taking care of them,” Justice said at a rally announcing his gubernatorial bid. “We’ll absolutely y’know, take, make sure that every one of them is taken care of.”

This story was updated on May 8 at 4:30 p.m. to include additional information.

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Kentucky Aluminum Plant Investor Is Russian Company Formerly Under US Sanctions

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Craig Bouchard speaks at a Braidy Industries launch event as KY Gov. Matt Bevin (right) looks on.

This article was originally published by the Ohio Valley ReSource.

Russian aluminum company Rusal announced Monday it plans to invest in a new Kentucky aluminum mill to be built near Ashland in eastern Kentucky. The $200 million investment in Braidy Industries is Rusal’s first U.S. project since the Trump administration lifted U.S. sanctions placed against the company.

Rusal had been sanctioned by the U.S. government because its major controller, Russian oligarch Oleg Deripaska, who has close ties to Russian President Vladimir Putin, faces accusations of “a range of malign activity around the globe” by Russia, according to the U.S. Treasury Department. Those actions include interference in the 2016 U.S. presidential election and meddling in neighboring Ukraine.

Deripaska also has close business ties to former Trump campaign chair Paul Manafort, who has been convicted of tax evasion and money laundering. Deripaska is suing the U.S. to have sanctions against him removed.

The Trump administration released Rusal from sanctions in January after the company reduced the ownership stake held by Deripaska. Congressional Democrats attempted to block the White House decision and passed legislation in the House that would keep sanctions in place. However, the bill fell short in the Republican-controlled Senate, where Majority Leader Mitch McConnell of Kentucky accused Democrats of trying to “politicize” the sanctions.

Braidy Bunch

According to a press release, RUSAL will earn a 40 percent share in the factory’s profits, and Braidy will keep the remaining 60 percent. The plant has also received $15 million in direct investment from the state of Kentucky. Gov. Matt Bevin cut a deal to attract Braidy to the state with that public money and additional tax incentives totaling more than $10 million.

As part of his reelection bid, Bevin has pointed to the Braidy development as evidence of job creation in an economically struggling part of the state.

“This is a seed that has been in the ground, the germination so often seems invisible to people,” Bevin said at an event over the weekend in Martin County, Kentucky. “But good things have been happening.”

The project is expected to cost more than $1 billion and employ over 500 people.

The Ashland project will produce rolled aluminum for the American auto and aircraft markets, and is the type of project President Donald Trump hoped to support with his tariffs on aluminum imports.

Braidy Industries CEO Craig T. Bouchard discussed the partnership at the New York Stock Exchange Monday morning.

“We’re really lucky and honored to have them as our partner in Kentucky,” Bouchard said of Rusal, adding that his company had chosen to partner with Rusal for its record of environmentalism.

We are going to lead the world in highest quality, lowest cost, and the least use of carbon from start to finish in the manufacturing process, and we’re changing the world,” he said.

The Ashland aluminum mill would be the first such plant to be built in the U.S. in 37 years, according to industry sources. Final agreements among the partners are expected to be signed later this year.

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