West Virginia

(information last updated Fall 2017)

Ongoing Projects:

State Project:

The West Virginia Department of Environmental Protection (DEP) runs a volunteer water quality monitoring program: WV Save our Streams.  See WV Save Our Streams, W. Va. Dep’t of Envtl. Protection, http://www.dep.wv.gov/WWE/getinvolved/sos/Pages/default.aspx (last visited Apr. 10, 2017).  Through the program, volunteers monitor macroinvertebrate populations, using them as indicator species for water quality.  See id.  We were unable to find statutory authorization for the program, which DEP appears to have created on its own initiative.

Trespass Law:

Criminal Liability for Trespass Despite Lack of Notice:

No.  Entry upon property does not constitute criminal trespass unless “notice against entering or remaining is either given by actual communication . . . or by posting, fencing, or cultivation.”  W. Va. Code § 61-3B-3.

Stalking Laws:

Criminal Law:

“Any person who repeatedly follows another knowing or having reason to know that the conduct causes the person followed to reasonably fear for his or her safety or suffer significant emotional distress, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.”  W. Va. Code § 61-2-9a.

Use of Information:

Although our research is incomplete, these provisions address the use of information collected by citizens.

Explicitly Allows:

“In enforcing emission limitations in any rule, including any rule which has been incorporated into the [SIP] by [EPA], any credible evidence may be used by the Director for the purpose of establishing whether a person has violated or is in violation.”  W. Va. Code R. § 45-38-5.

Prohibitive by Effect:

“[M]onitoring or information gathering methods that produce information comparable to that produced by any method listed in [40 C.F.R. Pts. 51, 60, 61, 63, 75]” is presumptively credible.  W. Va. Code R. § 45-38-5.

Evidentiary Standards:

Pleading a Claim:

Requires certification that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”  W. Va. R. Civ. P. 11.

Authentication or Chain of Custody:

 

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”  W. Va. R. Evid. 901.

Expert Testimony:

Wilt-Daubert standard, but only for scientific knowledge.  See Gentry v. Mangum, 466 S.E.2d 171, 185-86 (1995); Wilt v. Buracker, 443 S.E.2d 196, 203 (1993).

Discussion

Please note that this discussion is not moderated by the Emmett Environmental Law & Policy Clinic.