Jim Sconyers, Sierra Club: Had we won in the Supreme Court, we would have obtained our goal the easy way. Now we know there is no "silver bullet" to give us victory magically; we’ll have to keep working for it. Public ownership of the Blackwater Canyon is the light at the end of the tunnel -- the tunnel is just a little longer than it could have been.

Today’s ruling by the West Virginia Supreme Court, while not unexpected, is undeniably unfortunate. In amazingly sympathetic language, the Court nevertheless affirmed that Allegheny Power is not a public utility. Further, the Court found that no approval of the sale of the Blackwater Canyon by the Public Service Commission was necessary, and the sale stands as legal.

There were, undoubtedly, cries of joy in the boardrooms - the PSC boardroom, the Allegheny Power boardroom, and the Allegheny Wood Products boardroom. Corporate America could exchange high fives, safe in the knowledge that the good guys don’t always win. Surely they realize, though, that this is only a skirmish in the real conflict.

In the words of the decision:

"If the natural integrity of the Blackwater River Canyon is destroyed, it will be a tragedy for the people of West Virginia. It is unfortunate that state government has not taken a more active role in the stewardship of our environment by developing both law and public policy that takes environmental concerns into account; that environmental organizations were not more aggressive in seeking to purchase and preserve this land at an earlier point in time; and that West Virginia Power did not show more corporate responsibility to this state by selling the land to environmentalists for purposes of preservation notwithstanding the realization of reduced profits.

The harsh reality is that the protection of the environment, and not utility regulation, is what is truly at stake here..."

Justice Starcher in his dissent was even more passionate about the devastation to be wrought because of the decision:

"The majority says that the Public Service Commission, the public agency charged with making sure public utilities act in the public's best interests, cannot look behind the smoke and mirrors.

"The result is that Allegheny Power gets the milk without having to buy the cow -- it gets to drink in profits from selling electricity to the citizens of West Virginia, without having to submit its activities to the scrutiny of the Public Service Commission.

"This is wrong, because in this case, the illusion has concrete, permanent, and in my judgment, devastating consequences for the people of this State. I therefore dissent." ¨

Gazette Editorial of December 22, 1998

The State Supreme Court issued a ruling that simultaneously bemoaned the sale of a good portion of Blackwater Canyon to a private timbering company, while approving the legal fiction that made the sale possible, without even cursory oversight of whether the sale was in the public interest.

Justices can add themselves to the list of those to blame for the loss of Blackwater Canyon. To reach their decision, the justices had to conclude that, although Allegheny Power looks like a utility, walks like utility, quacks like a utility, it is not a utility and the sale of its land was not subject to review by the Public Service Commission.

Dissenting Justice Larry Starcher saw through this "illusion done on paper."

"Allegheny Power holds itself out to the public as one, unitary public utility company," Starcher wrote, "but when the public asks, ‘Are you really acting for our benefit?’ Allegheny Power smiles and says, ‘None of your business - we’re not a public utility company.’"

Justice Starcher shot right to the heart of the matter when he wrote: "I am at a loss to understand how a company can act and make profits under the guise of being one company, but, when it comes to taking responsibility, say that its smaller subsidiary companies -- companies that exist only on paper -- should be the focus of attention. This is an illusion, and justice demands that the people be allowed to look behind an illusion."

Starcher noted that Allegheny Power takes credit for the donation of the 600 acres to the state that led to the creation of Blackwater Falls State Park, but tries to evade responsibility for the sale of 3,000 acres to a logging firm.

Starcher suggests a simple test to determine whether the sale should have been subject to oversight: "If Allegheny Power management made the actual decision to sell the canyon land, and if Allegheny Power’s

treasury received the money from the sale, or if Allegheny Power’s in-house lawyers negotiated and oversaw the sale, then that sale should be open to scrutiny by the Public Service Commission."

Defeated in court by the dubious majority ruling, a wide-ranging collection of environmental and public interest groups is trying a new tactic: They want Congress to acquire Blackwater Canyon and turn it into a national park.

The merit of this idea should be obvious to anyone who has hiked its trails and viewed the canyon’s splendor from rocky outcrops like the famous Lindy Point, now off-limits to the public.

Senator Jay Rockefeller, who is in stalled negotiations with the timber company to arrange at least a partial swap of some of the land, should lead the effort to acquire the entire canyon before construction begins on rumored condominiums.

Blackwater National Park would be a proud legacy for the senator. ¨

Write a letter to Senator Rockefeller and tell him to do all he can to bring about whatever it takes to make the Blackwater Canyon a national park.

Note from Webmaster: Links to the full text of both the majority and dissenting opinions are available on Highlands Forum .