No.

19-1152

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRIENDS OF BUCKINGHAM; CHESAPEAKE BAY FOUNDATION, INC.,

Petitioners,
v.

STATE AIR POLLUTION CONTROL BOARD; RICHARD D. LANGFORD,

Chair of the State Air Pollution Control Board; VIRGINIA DEPARTMENT OF
ENVIRONMENTAL QUALITY; DAVID K. PAYLOR, Director, Virginia
Department of Environmental Quality,
Respondents,
and

ATLANTIC COAST PIPELINE, LLC,

Intervenor.

On Petition for Review of Approval and Issuance of Stationary Source Permit

No. 21599 by the State Air Pollution Control Board and the Virginia Department of
Environmental Quality

Brief of 28 Members of the Virginia General Assembly, Virginia State

Conference NAACP, and the Center for Earth Ethics
as Amicus Curiae on Behalf of Petitioners

Aderson B. Francois
Taylor Blatz*
GEORGETOWN UNIVERSITY LAW CENTER - CIVIL RIGHTS CLINIC
600 New Jersey Avenue, Suite 352, Washington, DC 20001
(202) 661-6721
aderson.francois@georgetown.edu
Counsel for Amici Curiae

*
Not yet admitted to the bar
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

INTEREST OF AMICUS CURIAE ......................................................................... 1

SUMMARY OF ARGUMENT ................................................................................ 7

ARGUMENT............................................................................................................ 9

I. UNION HILL HOLDS IN ITS VERY SOIL AMERICA’S HISTORY

OF SLAVERY, THE CIVIL WAR, RECONSTRUCTION, AND
THE COLLECTIVE MEMORY OF THE FIRST GENERATION OF
FORMER ENSLAVED PEOPLE .................................................................. 9

A. Union Hill Began as a Slave Plantation, where Thousands of

Enslaved Black Persons Toiled in Service of Wealthy White
Families ................................................................................................ 9

B. After the War, the Formerly Enslaved People of Union Hill

Banded Together to Purchase Land for their Homes, Schools,
Churches, and Cemeteries .................................................................. 12

C. Union Hill Preserved its History for Hundreds of Years, not

through Libraries, Museums, or Archives but through Families
and Kinship Networks that Have Resided in the Community,
Prayed in its Churches, and Buried its Dead in its Cemeteries .......... 17

II. UNION HILL IS ONE OF THE LAST OF ITS KIND; VIRTUALLY

EVERY OTHER FREEDMEN COMMUNITY HAS BEEN
IRREDEEMABLY DAMAGED OR IRRETRIEVABLY LOST
THROUGH NEGLECT, DEVELOPMENT, AND THE SORT OF
ENVIRONMENTAL DEPRADATION POSED BY DOMINION’S
ENERGY’S COMPRESSOR STATION ..................................................... 18

i
 A. Through Neglect, Unrestrained Development, and
Environmental Depredation, the Vast Majority of Freedmen
Communities Formed at the Conclusion of the Civil War and
During Reconstruction Are Now Lost to History .............................. 19

B. Union Hill Should Be Protected as a Living Memory of the

History of American Slavery, the Civil War and Reconstruction...... 22

CONCLUSION ...................................................................................................... 26

APPENDIX ............................................................................................................ 28

ii
 TABLE OF AUTHORITIES

Books

GABRIEL GARCIA MARQUEZ, ONE HUNDRED YEARS OF SOLITUDE

(1970) ................................................................................................................ 26

LYNN RAINVILLE, HIDDEN HISTORY (2014) ..................................................... passim

CHARLES WHITE, THE HIDDEN AND THE FORGOTTEN (2d ed. 2017) ............... passim

HEATHER ANDREA WILLIAMS, HELP ME TO FIND MY PEOPLE: THE AFRICAN

AMERICAN SEARCH FOR FAMILY LOST IN SLAVERY (2003) ...............................13

GEORGE C. RABLE, BUT THERE WAS NO PEACE: THE ROLE OF

VIOLENCE IN THE POLITICS OF RECONSTRUCTION (2007) .................................. 20

.
Scholarly Articles

Kerri S. Barile, Race, the National Register, and Cultural Resource

Management: Creating an Historic Context for Postbellum Sites,
38 HISTORICAL ARCHAEOLOGY 90, 92, 97-99 (2004) ................................. 20, 24

Christina Brooks, Enclosing Their Immortal Souls: A Survey of Two

African American Cemeteries in Georgetown, South Carolina, 30
SOUTHEASTERN ARCHAEOLOGY 176 (2011) ...................................................... 17

Carol McDavid, When is “Gone” Gone? Archaeology, Gentrification,

and Competing Narratives about Freedmen's Town, Houston, 45
HISTORICAL ARCHAEOLOGY 74, 76-78 (2011) .................................................. 21

Charles E. Orser Jr., Twenty-First-Century Historical Archaeology, 18

J. ARCHEOLOGICAL RESEARCH 111, 125, 131-32 (2010) ................................... 20

Lynn Rainville, Protecting Our Shared Heritage in African-American

Cemeteries, 34 JOURNAL OF FIELD ARCHAEOLOGY 196, 200-01
(2009) ................................................................................................................ 18

iii
Matthew B. Reeves, Reinterpreting Manassas: The Nineteenth-
Century African American Community at Manassas National
Battlefield Park, 37 HISTORICAL ARCHAEOLOGY 124, 130-31
(2003) ................................................................................................................ 15

Brian W. Thomas, Power and Community: The Archaeology of

Slavery at the Hermitage Plantation, 63 AM. ANTIQUITY 531, 533-
34 (1998) ........................................................................................................... 19

Louise Tolson, Toward a Methodology for the Use of Oral Sources in

Historical Archaeology, 48 HISTORICAL ARCHAEOLOGY 3 (2014) ................... 23

Census and other Data

014-5054 Alexander Hill Baptist Church, VIRGINIA DEPARTMENT OF HISTORIC

RESOURCES, https://www.dhr.virginia.gov/historic-registers/014-5054/ (updated
Oct. 22, 2018).....................................................................................................16

James M. Johns Jr., 1870 census, Curdsville Post Office, Maysville

Township, Buckingham County, Virginia, ANCESTRY.COM
(accessed May 2019) ........................................................................................ 15

James M. Johns Jr., Curdsville Post Office, James River Township,

Buckingham County, Virginia, ANCESTRY.COM (accessed May
2019) ................................................................................................................ 15

A.T. Moseley, 1870 census, Buckingham Courthouse Post Office,

James River Township, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019) .............................................................. 15

A.T. Moseley, 1870 census, Buckingham Courthouse Post Office,

Maysville Township, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019) .............................................................. 15

A.T. Moseley, 1870 census, Buckingham Courthouse Post Office,

Slate River Township, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019) .............................................................. 15

Sam P. Moseley, 1860 slave schedule, District No. 1, Buckingham

County, Virginia, ANCESTRY.COM (accessed May 2019) .................................. 15

iv
S. P. Moseley, 1860 census, District No. 1, Buckingham County,
Virginia, ANCESTRY.COM (accessed May 2019); W.A. Ford, 1860
census, District No. 2, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019) ............................................................... 15

S.P. Moseley, 1860 census, District No. 1, Buckingham County,

Virginia, ANCESTRY.COM (accessed May 2019); W.A. Ford, 1860
census, District No. 2, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019). .............................................................. 15

Virginia Foundation for the Humanities, Freedman's Village,

AFRICAN AMERICAN HISTORIC SITES DATABASE,
http://www.aahistoricsitesva.org/items/show/161 (last visited June
3, 2019) ............................................................................................................ 14

Virginia Foundation for the Humanities, Uniontown Community,

AFRICAN AMERICAN HISTORIC SITES DATABASE,
http://www.aahistoricsitesva.org/items/show/450 (last visited June
3, 2019) ............................................................................................................. 14

Virginia Humanities, Vinegar Hill, AFRICAN AMERICAN HISTORIC

SITES DATABASE, http://www.aahistoricsitesva.org/items/show/457
(last visited June 3, 2019) ................................................................................. 14

Newspaper, Magazine, and News Articles

DeNeen L. Brown, Black Towns, Established by Freed Slaves After

the Civil War, Are Dying Out, WASHINGTON POST (March 27,
2015), https://www.washingtonpost.com/local/black-towns-
established-by-freed-slaves-after-civil-war-are-dying-
out/2015/03/26/25872e5c-c608-11e4-a199-
6cb5e63819d2_story.html?noredirect=on&utm_
term=.df0445bd82ba ............................................................................. 12, 14, 16

DeNeen L Brown, All-Black Towns Across America: Life Was Hard

But Full of Promise, WASHINGTON POST (March 27, 2015),
https://www.washingtonpost.com/lifestyle/style/a-list-of-well-
known-black-towns/2015/03/27/9f21ca42-cdc4-11e4-a2a7-
9517a3a70506_story.html?utm_term=.f396362accaa. .................................... 16

v
W. E. Burghardt Dubois, The Freedmen’s Bureau, ATLANTIC MONTHLY 354, 357
(Mar. 1901), http://www.theatlantic.com/past/docs/issues/01mar/dubois.htm. 12

Richard Fausset, Alabama Historians: The Last Slave Ship has been
Found, NEW YORK TIMES (May 23, 2019),
https://www.nytimes.com/2019/05/23/us/clotilda-slave-ship-
alabama.html ................................................................................................... 26

Jesse J. Holland, Arlington Graves Cover ‘Freedman’s Village’, NBC

NEWS (April 20, 2010, 1:18 PM),
http://www.nbcnews.com/id/36651047/ns/us_news-life/t/arlington-
graves-cover-freedmans-village/ ...................................................................... 13

Sandra E. Garcia & Matthew Haag, Descendants’ Stories of the

Clotilda Slave Ship Drew Doubts; Now Some See Validation, NEW
YORK TIMES (Jan. 25, 2018),
https://www.nytimes.com/2018/01/25/us/slave-ship-alabama-
descendants.html?module=inline ..................................................................... 25

Henry Willett, Mobile Community Holds onto Unique Heritage,

ALABAMA STATE COUNCIL ON THE ARTS: ALABAMA FOLKWAYS
ARTICLES (July 1993),
http://arts.alabama.gov/traditional_culture/folkwaysarticles/MOBI
LECOMMUNITY.aspx (last visited June 6, 2019) .......................................... 25

vi
 INTEREST OF AMICI CURIAE

Amici curiae are 28 members of the Virginia General Assembly, the

legislative body for the Commonwealth of Virginia and the longest

continuous law-making body in the world; Virginia State Conference

NAACP, a nonprofit organization dedicated to ensuring the political,

educational, social, and economic equality of rights of all persons; and the

Center for Earth Ethics, a national civic organization working on

environmental justice and civic engagement.

Together the 28 members of the General Assembly represent over two

million Virginians.

• Delegate Dawn Adams represents 79,611 Virginians, including 6,051

African-Americans from the 68th House of Delegates District,

consisting of portions of Henrico, Chesterfield, and Richmond Counties

in the greater Richmond area.1

• Delegate Lashrecse Aird represents 79,602 Virginians, including

48,000 African-Americans, from the 63rd House of Delegates District,

1
All resident populations are taken from 2010 census data. All African-American
resident population numbers are estimates based off of multiplying the percentage of
African-American residents by the total number of residents, and rounding up to the next
whole person. County percentages are rounded to the nearest whole percentage.

1
 consisting of parts of Petersburg City, Dinwiddie, Chesterfield, Prince

George, and Hopewell Counties in southeastern Virginia.

• Delegate Hala Alaya represents 80,372 Virginians, including 13,342

African-Americans from the 51st House of Delegates District,

consisting of Prince William County in Northern Virginia.

• Delegate John Bell represents 79,275 Virginians, including 7,056

African-Americans from the 87th House of Delegates District,

consisting of Loudoun and Prince William Counties in Northern

Virginia.

• Senator Jennifer Boysko represents 196,178 Virginians, including

20,207 African-Americans, from the 33rd State Senate District,

consisting of parts of Fairfax and Loudoun Counties in Northern

Virginia.

• Delegate Jennifer Carroll Foy represents 79,491 Virginians, including

2,862 African-Americans from the 2nd House of Delegates District,

consisting of portions of Prince William and Stafford Counties in

Northern Virginia.

• Delegate Lee Carter represents 80,667 Virginians, including 12,020

African-Americans from the 50th House of Delegates District,

2
 consisting of Prince William and Manassas Counties in Northern

Virginia.

• Delegate Kelly Convirs-Fowler represents 79,608 Virginians, including

20,221 African-Americans from the 21st House of Delegates District,

consisting of portions of Virginia Beach City and Chesapeake in the

Virginia Beach Area of Southeast Virginia.

• Senator Creigh Deeds represents 198,245 Virginians, including 20,420

African-Americans from the 25th Senate District, consisting most

significantly of Albemarle County and Charlottesville City and

stretching to the western border.

• Delegate Karrie Delaney represents 79,633 Virginians, including 4,778

African-Americans, from the 67th House of Delegates District,

consisting of parts of Loudoun and Fairfax counties in Northern

Virginia.

• Delegate Wendy Gooditis represents 80,617 Virginians, including

7,337 African-Americans from the 10th House of Delegates District,

consisting of portions of Loudoun, Fredrick, and Clarke Counties in

Northern Virginia.

• Delegate Elizabeth Guzman represents 79,210 Virginians, including

16,872 African-Americans from the 31st House of Delegates District,

3
 consisting of portions of Prince William and Fauquier Counties in

Northern Virginia.

• Delegate Patrick Hope represents 80,757 Virginians, including 4,200

African-Americans from the 47th House of Delegates District,

consisting of Arlington in Northern Virginia.

• Delegate Chris Hurst represents 80,492 Virginians, including 3,864

African-Americans from the 12th House of Delegates District,

consisting of portions of Montgomery, Giles, Radford, and Pulaski

Counties in Southwest Virginia.

• Delegate Jay Jones represents 79,614 Virginians, including 46,654

African-Americans, from the 89th House of Delegates District,

consisting of Norfolk city in Southeastern Virginia.

• Delegate Mark Keam represents 80,213 Virginians, including 4,171

African-Americans from the 35th House of Delegates District,

consisting of Fairfax County in Northern Virginia.

• Delegate Kaye Kory represents 80,758 Virginians, including 8,238

African-Americans from the 38th House of Delegates District,

consisting of Fairfax County in Northern Virginia.

4
 • Delegate Paul Krizek represents 80,796 Virginians, including 18,341

African-Americans from the 44th House of Delegates District,

consisting of part of Fairfax County in Northern Virginia.

• Delegate Mark Levine represents 80,240 Virginians, including 9,870

African-Americans from the 45th House of Delegates District,

consisting of the city of Alexandria.

• Delegate Alfonso Lopez represents 80,609 Virginians, including 3,628

African-Americans from the 49th House of Delegates District,

consisting of Arlington and Fairfax Counties in Northern Virginia.

• Delegate Kenneth R. Plum represents 79,746 Virginians, including

7,656 African-Americans, from the 36th House of Delegates District,

consisting of part of Fairfax County.

• Delegate Sam Rasoul represents 80,132 Virginians, including 27,646

African-Americans from the 11th House of Delegates District,

consisting of Roanoke city in Southwest Virginia.

• Delegate Marcus Simon represents 80,049 Virginians, including 4,643

African-Americans from the 53rd House of Delegates District,

consisting of part of Fairfax County and the city of Falls Church in

Northern Virginia.

5
 • Delegate Kathy Tran represents 79,964 Virginians, including 8,637

African-Americans from the 42nd House of Delegates District,

consisting of Fairfax County in Northern Virginia.

• Delegate Cheryl Turpin represents 80,800 Virginians, including 16,807

African-Americans from the 85th House of Delegates District,

consisting of Virginia Beach city.

• Delegate Debra Rodman represents 80,135 Virginians, including

11,780 African-Americans from the 73rd House of Delegates District,

consisting of Henrico County in the Greater Richmond Area.

• Delegate Ibraheem Samirah represents 80,747 Virginians, including

6,783 African-Americans from the 86th House of Delegates District,

consisting of Loudoun and Fairfax Counties in Northern Virginia.

• Senator Lionell Spruill represents 200,751 Virginians, including

113,023 African-Americans from the 5th State Senate District,

consisting of portions of Norfolk and Chesapeake Counties.

• Virginia State Conference NAACP is a nonprofit organization

dedicated to ensuring the political, educational, social, and economic

equality of rights of all persons and to eliminate racial hatred and

discrimination. This includes a focus on environmental justice and

eliminating the disproportionate placement of industrial facilities and

6
 polluting infrastructure in communities of color, as well as a

commitment to preserving African-American heritage.

• The Center for Earth Ethics is an initiative of Union Theological

Seminary, a nongovernmental corporation organized and existing under

the laws of the State of New York with no parent corporation and no

publicly held company holding 10% or more of its stock. The Center

aims to galvanize spiritual and religious action on environmental and

climate justice.

As elected representatives and civic organizations, amici speak for the

citizens of the Commonwealth who overwhelmingly oppose the damage the

compressor would bring to the Union Hill neighborhood. On their behalf,

amici respectfully ask the Court to vacate and remand the permit order for

further consideration.2

SUMMARY OF ARGUMENT

The Union Hill neighborhood in Buckingham County, Virginia,

contains within its thousands of acres the American history of slavery, the

Civil War, Reconstruction, and the collective memory of the first generation

of former enslaved people enacting for themselves and their children what

2
No counsel for a party authored this brief in whole or in part, and no one other than
amicus or its counsel made any monetary contribution toward the brief’s preparation of
submission. In addition all parties have consented to the filing of this brief.

7
W.E. B. Dubois would in time call “a new birthright.” This rich, unique, and

vital history is not documented in Union Hill’s libraries, or collected in its

museums, or even recorded in Buckingham’s municipal archives, which

burned down the night the 15th Amendment was passed in 1869 precisely in

order to destroy such written documentation. Rather, that history is preserved

because, for hundreds of years, the same families and kinship networks have

resided in Union Hill. It is recorded in the memory of the community: the

congregations of Union Hill’s hundred-and-fifty year-old churches, the

descendants of formerly enslaved people who live where their ancestors once

labored in plantation tobacco fields, and the generational memory of those

who are buried in Union Hill’s dozens of plantation cemeteries and untold

number of family plots on Freedmen heritage land where formerly enslaved

people and their descendants have been put to rest. Dominion Energy’s plans

to build a compressor station for the Atlantic Coast Pipeline in the middle of

Union Hill will destroy vital physical evidence of this history. It will also

disrupt the kinship ties which are vital to remembering and passing down the

oral history of this area, where written documentation has been destroyed or

was never produced to begin with. Ultimately, the compressor station will add

Union Hill to a long catalogue of Freedmen communities now long lost to

history. At the conclusion of the Civil War and during Reconstruction, there

8
existed in the Country at least 200 such communities. Today, the vast

majority has been irredeemably damaged or irretrievably lost through neglect,

development, and the sort of environmental depredation posed by Dominion

Energy’s compressor station. Union Hill is one of the few remaining

communities where a fundamental part of our national heritage can be

preserved. It deserves our respect, it deserves our protection, and it deserves

to remain what it has been for over one hundred and fifty years: a living,

undisturbed memory of the history of American slavery, the Civil War and

Reconstruction.

ARGUMENT

I. UNION HILL HOLDS IN ITS VERY SOIL AMERICA’S HISTORY OF

SLAVERY, THE CIVIL WAR, RECONSTRUCTION, AND THE COLLECTIVE MEMORY
OF THE FIRST GENERATION OF FORMER ENSLAVED FREED PEOPLE

A. Union Hill began as a slave plantation where thousands of

enslaved Black persons toiled in service of wealthy White families.

Prior to the Civil War, the land which made up the Woods Corner and

Union Hill area was owned by several wealthy plantation-owning families and

farmers. Research done in this area by Carl and Lynn Henshaw indicate that

the Woods Corner and Union Hill area is replete with antebellum slave

cemeteries, which is supported by census records indicating that the white

plantation-owning families living in this area owned thousands of slaves. An

1865 map of Buckingham and Appomattox Counties, surveyed by the

9
Confederate Army, 3 as well as an 1849 plat map surveyed by Grandison

Mosely for Colonel Thomas Moseley Bondurant, note the location of many

slave-owning families occupying many of the homes in the Union Hill and

Woods Corner area. Between Variety Shades and its neighboring plantations,

at least 750 slaves were recorded living in the Union Hill area in the 1860

slave schedule, while thousands more lived on nearby plantations.4 Enslaved

persons were in some cases permitted to attend the nearby Mulberry Grove

Baptist Church, located approximately two miles east of the proposed

compressor site. See CHARLES WHITE, THE HIDDEN AND THE FORGOTTEN 138

(2d ed. 2017). After emancipation, many freedmen continued to attend this

church—in 1867, church records show that seventy-five percent of the nearly

300-member congregation was black. Id.

For many enslaved people, religion played an important role in

sustaining the community and building kinship connections which were

severed or strained when families were forcibly separated. See LYNN

RAINVILLE, HIDDEN HISTORY 69-73 (2014). In particular, rituals around death

3
Charles E Cassell & Albert H Campbell, Map of Buckingham & Appomattox
Counties (1863), LIBRARY OF CONGRESS, https://www.loc.gov/item/2002627425/
(accessed May 2019). See appendix for map annotated with locations of families noted in
the census, as well as counts of slaves owned by the individuals in that household.
4
Sam P. Moseley, 1860 slave schedule, District No. 1, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019).

10
served to “strengthen kinship ties [and] extend the social networks of families

and individuals who lived on nearby plantations.” RAINVILLE, at 53. Prior to

emancipation, enslaved people buried their deceased kin on plantation land—

on large plantations, they may have a separate burial ground grounds, while

on small plantations they may have been buried inside the plantation owner’s

family cemetery, perhaps segregated in a corner of the grounds, or buried just

outside the plantation owner’s cemetery. Id., at 13. Burial rituals were one of

the few areas where plantation owners typically allowed enslaved people a

degree of relative freedom, and funerals were often one of the only times when

forcibly separated families working on neighboring plantations were able to

reunite. Id. at 51-52. Thus, “funerals were often poignant celebratory reunions

among the living as well as remembrances of the dead.” Id. at 55. Prior to

emancipation, enslaved people buried their deceased kin on plantation land;

on large plantations, they may have a separate burial ground grounds, while

on small plantations they may have been buried inside the plantation owner’s

family cemetery, perhaps segregated in a corner of the grounds, or buried just

outside the plantation owner’s cemetery. Id. at 13. After emancipation, these

plantation cemeteries were often still used, either out of financial necessity or

to re-unite the deceased with their loved ones who had passed while still

enslaved. Id. at 65. Lynn and Carl Henshaw’s efforts to map slave and

11
Freedmen cemeteries in Buckingham County have revealed the existence of

many of these cemeteries in the Union Hill area, and it is highly likely that

others exist which have yet to be mapped.

B. After the War, the formerly enslaved people of Union Hill banded
together to purchase land for their homes, schools, churches, and
cemeteries.

Enslaved people in Buckingham County, who were among the first to

learn of the end of the Civil War in 1865, reacted with joy, shock, and

righteous anger. See WHITE, at 105. The realities of freedom, however, posed

new dangers and challenges which threatened former slaves. Nearly five

million people had now “come into a new birthright, at a time of war and

passion, in the midst of the stricken, embittered population of their former

masters.”5 Across the U.S., former slaves faced homelessness and starvation

when they chose or were forced to leave the plantations they had labored on.6

Most former slaves, having been legally barred from learning to read, were

illiterate and had little or no possessions or money. See Brown, Black Towns.

Indeed, many of them did not even have families; with bodies of the war dead

5
W. E. Burghardt Dubois, The Freedmen’s Bureau, ATLANTIC MONTHLY at 354, 357
(Mar. 1901), http://www.theatlantic.com/past/docs/issues/01mar/dubois.htm.
6
DeNeen L. Brown, Black Towns, Established by Freed Slaves After the Civil War,
Are Dying Out, WASHINGTON POST (March 27, 2015),
https://www.washingtonpost.com/local/black-towns-established-by-freed-slaves-after-
civil-war-are-dying-out/2015/03/26/25872e5c-c608-11e4-a199-
6cb5e63819d2_story.html?noredirect=on&utm_term=.df0445bd82ba [hereinafter Brown,
Black Towns].

12
still decaying in the fields, former slaves placed desperate advertisements in

newspapers, looking for mothers and fathers, brothers and sisters, husbands

and wives, sold away to distant plantations before the war.7 It was from these

dire circumstances that the freedmen’s community arose: across the country,

freedmen created tight-knit, often rural, typically all-black communities by

banding together to purchase land for their families, churches, and schools.

Id. Two decades after the end of the Civil War, at least 200 such communities

existed. Id. In Virginia, many of these freedmen communities, which were

founded after the Civil War, have been destroyed in the intervening years. For

example, Freedmen’s Village, established by the US Government during the

Civil War to house individuals who had escaped during the war and home to

approximately 100 families, was later cleared by the federal government to

build the Arlington National Cemetery8; Uniontown, home to more than 60

7
After the Civil War, it was a common practice for black people to place
advertisements in newspapers looking for lost relatives. See HEATHER ANDREA
WILLIAMS, HELP ME TO FIND MY PEOPLE: THE AFRICAN AMERICAN SEARCH FOR FAMILY
LOST IN SLAVERY (2003). As late as 1879, fifteen years after the War, these
advertisements could still be found in newspapers around the country. For example, a
posting from July 17, 1879, read:
Dear Editor: I want to inquire for my father. He went from Franklin Co.,
Miss. About 1850 to Alabama with a man by the name of Doctor Baker,
who was said to be his young master. My father’s name was Milzes Young.
I learned that after he left here he went by the name Milzes Albert. I now
go by the name Dock Young and am his youngest son. Address me in care
of George Torrey, Union Church, Jefferson Co., Miss. Dock Young.
Id. at 160-61.
8
Jesse J. Holland, Arlington Graves Cover ‘Freedman’s Village’, NBC NEWS (April
20, 2010, 1:18 PM), http://www.nbcnews.com/id/36651047/ns/us_news-life/t/arlington-

13
families in the late 19th century, was later annexed by neighboring Staunton

and re-zoned to prohibit construction of new homes9; and Vinegar Hill, once

home to over 55 African American owned homes and businesses, was

demolished in the 1960s as part of an urban renewal project, disrupting 29

businesses and displacing 600 residents.10 Rural Freedmen communities were

typically founded by former slaves who remained in the area where they were

enslaved, finding work on the same plantations where they had previously

been enslaved and purchasing land from their former owners—often

“pa[ying] more for land than white people would—when they could. See

Brown, Black Towns. But freedmen and women were willing to pay a

premium for their land, because owning land allowed them to “develop their

autonomy and independence as much as possible.” Id.

Union Hill was one such freedman community, and is one of the few

still in existence to this day. See id. Before emancipation, just over five percent

graves-cover-freedmans-village/; Virginia Foundation for the Humanities, Freedman's
Village, AFRICAN AMERICAN HISTORIC SITES DATABASE,
http://www.aahistoricsitesva.org/items/show/161 (last visited June 3, 2019).
9
Virginia Foundation for the Humanities, Uniontown Community, AFRICAN
AMERICAN HISTORIC SITES DATABASE, http://www.aahistoricsitesva.org/items/show/450
(last visited June 3, 2019).
10
Virginia Humanities, Vinegar Hill, AFRICAN AMERICAN HISTORIC SITES
DATABASE, http://www.aahistoricsitesva.org/items/show/457 (last visited June 3, 2019).

14
of Buckingham County’s population were freedmen and women. 11 After

emancipation, the population around Union Hill was more than fifty percent

freedmen and women. 12 The 1870 census paints a grim picture of what life

was like for these communities in Buckingham County. In the Maysville,

James River, and Slate River areas, less than two percent of freedmen had

personal wealth, and only one percent owned property. Id. While a

Freedmen’s Bureau office—intended to assist Freedmen with food, housing,

and other necessities, as well as to protect them from entering harmful

employment contracts with unscrupulous landowners—was established in

Buckingham County in 1865, it closed and ended its services just five years

later. WHITE, at 106-09. In such circumstances, building a strong, self-

sustaining community was a matter of survival for the freedmen population.13

11
S.P. Moseley, 1860 census, District No. 1, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019); W.A. Ford, 1860 census, District No. 2,
Buckingham County, Virginia, ANCESTRY.COM (accessed May 2019).
12
A.T. Moseley, 1870 census, Buckingham Courthouse Post Office, James River
Township, Buckingham County, Virginia, ANCESTRY.COM (accessed May 2019); James
M. Johns Jr., Curdsville Post Office, James River Township, Buckingham County,
Virginia, ANCESTRY.COM (accessed May 2019), A.T. Moseley, 1870 census, Buckingham
Courthouse Post Office, Maysville Township, Buckingham County, Virginia,
ANCESTRY.COM (accessed May 2019); James M. Johns Jr., 1870 census, Curdsville Post
Office, Maysville Township, Buckingham County, Virginia, ANCESTRY.COM (accessed
May 2019); A.T. Moseley, 1870 census, Buckingham Courthouse Post Office, Slate River
Township, Buckingham County, Virginia, ANCESTRY.COM (accessed May 2019).
13
See, e.g., Matthew B. Reeves, Reinterpreting Manassas: The Nineteenth-Century
African American Community at Manassas National Battlefield Park, 37 HISTORICAL
ARCHAEOLOGY 124, 130-31 (2003).

15
 Like many freedmen communities,14 Union Hill’s community was built

on shared values, embodied in the first community institutions which the

residents established, almost always beginning with churches and schools. See

Brown, Black Towns. In Union Hill, many of these historic landmarks still

serve as cornerstones of the community, and even where the buildings have

been destroyed, the community remains. In 1865, Buckingham’s oldest black

church, the Alexander Hill Baptist Church, was organized by the young

Freedmen preacher Gabriel Palmer and nearly 500 congregants in the

Glenmore area. WHITE, at 147. Without a building to pray in, the congregants

met outside in a brush arbor—a temporary structure where a hill of dirt served

as a pulpit and a lean-to of sticks protected congregants from the elements—

until a permanent structure, now considered the oldest African- American

Church in Buckingham County,15 could finally be erected. Id. Five miles to

the south, in Union Hill, the white Mulberry Grove Baptist Church swelled to

a predominantly black membership by 1867; shortly thereafter, the freedmen

population split from the white congregation and established the Union Hill

14
DeNeen L Brown, All-Black Towns Across America: Life Was Hard But Full of
Promise, WASHINGTON POST (March 27, 2015),
https://www.washingtonpost.com/lifestyle/style/a-list-of-well-known-black-
towns/2015/03/27/9f21ca42-cdc4-11e4-a2a7-
9517a3a70506_story.html?utm_term=.f396362accaa.
15
014-5054 Alexander Hill Baptist Church, Virginia Department of Historic
Resources, https://www.dhr.virginia.gov/historic-registers/014-5054/ (updated Oct. 22,
2018).

16
Baptist Church. Id. at 138. The Union Hill Baptist Church, which remains a

pillar of the community to this day, has gone through several incarnations: it

was established as a brush arbor before a permanent structure was erected,

which burned down and was rebuilt in 1887. The Union Hill Freedmen

community, centered around the church and schools established nearby, has

continued to worship at the Union Hill Baptist Church for the last 150 years.

C. Union Hill preserved its history for hundreds of years, not through
libraries, museums or archives but through families and kinship
networks that have resided in the community, prayed in its churches,
and buried their dead in its cemeteries.

One element of the history of Union Hill which is especially important

in the context of this case is the burial traditions which have been carried down

since the time of slavery. “It is evident that American slavery limited the

ability of enslaved Africans to maintain their cultural identity through the

Atlantic slave trade… Burials, however, may be one area where enslaved

Africans were afforded more ‘freedoms’ and control. As a result, they are a

unique resource with which to explore enslaved African and African

American culture as defined by that population.”16 The Union Hill/Woods

Corner area is one of the few areas where the pre-emancipation burial

16
Christina Brooks, Enclosing Their Immortal Souls: A Survey of Two African
American Cemeteries in Georgetown, South Carolina, 30 SOUTHEASTERN ARCHAEOLOGY
176 (2011).

17
traditions have been carried down—namely, the oral traditions by which

communities preserve and pass down information regarding the locations of

family burial plots and the names and stories of those interred therein—and

are still useful for historians and researchers today. See RAINVILLE, at 2-3.

Quite literally, the history of Union Hill—the slaves who once toiled on its

plantations, the pre- and post-bellum freedmen who built their lives here, and

the relatives and ancestors of the descendants who live here to this day—is

buried in its soil. Preserving these burial sites is of vital importance—not only

is it legally required in Virginia,17 it is also of great significance for the living

descendants of freedmen and women, as well as the historical record and our

understanding of the context for our shared heritage. See RAINVILLE, at 11. “A

cemetery is often the only record we have of the lost community it

memorializes.” Id.

II. UNION HILL IS ONE OF THE LAST OF ITS KIND; VIRTUALLY EVERY
OTHER FREEDMEN COMMUNITY HAS BEEN IRREDEEMABLY DAMAGED OR
IRRETRIEVABLY LOST THROUGH NEGLECT, DEVELOPMENT, AND THE SORT OF
ENVIRONMENTAL DEPREDATION POSED BY DOMINION ENERGY’S COMPRESSOR
STATION.

A. Through neglect, unrestrained development, and environmental

depredation, the vast majority of Freedmen communities that formed
at the conclusion of the Civil War and during Reconstruction have
been lost to history.

17
See Lynn Rainville, Protecting Our Shared Heritage in African-American
Cemeteries, 34 JOURNAL OF FIELD ARCHAEOLOGY 196, 200-01 (2009).

18
 Emancipation brought with it the freedom to build community in ways

that had been previously denied to enslaved individuals. 18 Where before

enslaved people could only gather as a community for religious worship

outdoors, under the shelter of a temporary brush arbor, and in secrecy or under

the supervision and control of plantation owners and overseers, emancipation

brought the freedom to build permanent houses of worship where the

community could freely gather. See RAINVILLE, at 71-72. Where before the

state of Virginia had prohibited literacy for both freed and enslaved African

Americans, emancipation allowed the freedom to learn to read and write, and

to teach the community’s children to do so as well. WHITE, at 157-58. Where

slave holders had torn apart families, separated loved ones, and prohibited the

building of family and community ties, emancipation allowed freedmen and

women the ability to build homes, protect and nurture their families, and pass

down their cultural heritage and the security of property to their children,

grandchildren, and great grandchildren. See generally id., at 13-15. At least,

these were the promises that emancipation made. In reality, the rise of Jim

Crow would undermine the gains which freedmen and women made in the

years after the end of the Civil War, threatening homes and families alike with

18
See generally Brian W. Thomas, Power and Community: The Archaeology of
Slavery at the Hermitage Plantation, 63 AM. ANTIQUITY 531, 533-34 (1998).

19
 19
destruction and violence. Racism, both overt and implicit, would

disenfranchise the descendants of freedmen and women, denying them access

to capital, home ownership, and the ability to build wealth. This

disenfranchisement put freedmen communities on a path of under-investment

which would lead to the dissolution of the vast majority of freedmen

communities.

Despite the valuable historical and cultural heritage, which is embodied

by Freedmen communities, the preservationist movement has systemically

and unfairly undervalued African American history for decades. See

RAINVILLE, at 4. Cultural and historic preservation organizations and efforts

have historically focused on preserving buildings, which inherently favors the

wealthy who had the financial resources and means to build with materials

that have stood the test of time. 20 Poor and rural communities, on the other

hand, tended to use building materials which have been degraded over time

and are no longer standing. See Barile, at 97-98. Because historic black

buildings, cemeteries, and other cultural landmarks have not been the focus of

19
See generally GEORGE C. RABLE, BUT THERE WAS NO PEACE: THE ROLE OF
VIOLENCE IN THE POLITICS OF RECONSTRUCTION (2007).
20
See Kerri S. Barile, Race, the National Register, and Cultural Resource
Management: Creating an Historic Context for Postbellum Sites, 38 HISTORICAL
ARCHAEOLOGY 90, 92, 97-99 (2004). See also Charles E. Orser Jr., Twenty-First-Century
Historical Archaeology, 18 J. ARCHEOLOGICAL RESEARCH 111, 125, 131-32 (2010).

20
preservation efforts, their degradation has not been slowed. See id.

Furthermore, zoning, lack of investment, segregation, urban renewal

campaigns, and other forces have contributed to the degradation of the

physical remains of historic buildings, as well as the communities who are

invested in preserving them.21

Even when committed residents dedicated to preserving their historical

Freedmen communities have tried to make the case that their homes and

communities should be saved for their valuable historical and cultural

heritage, they have struggled to succeed. See id. For example, Freedmen’s

Town, Texas, is a historic neighborhood outside Houston founded after the

Civil War by previously enslaved people from the surrounding plantations,

who “built a prosperous, self-sustaining community, which… [became] the

home of a growing black professional class.” Id. at 75. Encroaching

development in the mid twentieth century, however, displaced many of the

town’s original residents and drained financial resources. Id. at 76. In the

1930s, eminent domain was used to clear “much of the original

Freedmantown settlement… to build a public-housing project for white

defense workers.” Id. A freeway was constructed which bisected the area,

21
See Carol McDavid, When is “Gone” Gone? Archaeology, Gentrification, and
Competing Narratives about Freedmen's Town, Houston, 45 HISTORICAL ARCHAEOLOGY
74, 76-78 (2011).

21
“eliminat[ing] many of the ward's most important buildings and destroy[ing]

the geographical integrity of the community.” Id. Despite it all, however,

“many descendants continue to think of Freedmen's Town as their

neighborhood… return[ing] on Sundays to worship in community,” fighting

to protect the remaining historic buildings from destruction and working with

archaeologists and historians to preserve and protect this historic community.

Id. at 76-78. Nonetheless, in 2008, Freedman Town’s historic church was

demolished by the city with no warning, despite the community nearly having

completed the process to get a historic designation for the church from the

city. Id. at 79. After having passed “all hurdles for this designation save final

city council approval,” which, “for unknown reasons, the city kept delaying

putting it on the agenda,” the community was shocked and dismayed at this

turn of events. Id. Furthermore, the church was charged $30,000 for the

demolition—which never would have happened had the city granted the

historic designation the community sought. Id.

B. Union Hill should be protected as a living memory of the history of

American slavery, the Civil War, and Reconstruction.

In Union Hill, there is a unique opportunity to avoid repeating the

mistakes of the past. Rather than overvaluing architectural remains—well

preserved buildings built by wealthy, white plantation owners—to the

detriment of poor, rural, and non-white communities, historians are coming to

22
recognize that there is significant value in recording and preserving the oral

history traditions which can serve to replace or supplement the written record

of history when, as in Union Hill, that record is unavailable or incomplete. 22

Lynn Rainville, a historian and archaeologist who has spent decades locating,

documenting, and preserving historic pre-and post-bellum African American

cemeteries and burial sites in neighboring Albemarle County, has relied

heavily on this type of oral history passed down by families to find historic

burial sites which otherwise would be forgotten and consequently lost or

destroyed. RAINVILLE, at xiv. She describes these historic sites as “outdoor

museums of African American culture” which inform our understanding of

the lives, deaths, beliefs, and cultural practices of enslaved people who were

excluded from the written record of history. Id. at 11. As Rainville writes,

We cannot fully understand nineteenth-century Virginia history

if we do not account for these people, who often made up more
than 50 percent of a Piedmont county’s population between
about 1830 and 1860. Their achievements and disappointments
must be incorporated into local histories, and in turn they will
help us to assess the impact of these families and communities
on broader trends in American History. Cemetery sites preserve
the voices of the past, telling of family intrigue, neighborhood
relations, community history—even artistic skills.

Id. at xiv-xv.

22
See, e.g., Louise Tolson, Toward a Methodology for the Use of Oral Sources in
Historical Archaeology, 48 HISTORICAL ARCHAEOLOGY 3 (2014).

23
 The Union Hill-Woods Corner area is one of the few places where the

pre-emancipation burial traditions have been carried down to this day—

namely, the oral traditions by which information regarding family burial plots

is passed down—and are still useful for historians and researchers today. See

RAINVILLE, at 2-3. The fact that this oral and material record has been

preserved in its entirety is what makes it so useful to archaeologists and

historians. It is also what makes this site so unique—very few communities

like Union Hill still exist, where generations of the descendants of

emancipated slaves have continued to live in the same area and on the same

land. At this time in history, we are at a critical juncture: failure to recognize

the historical and cultural value of sites like Union Hill may result in their loss

forever, either through their physical destruction or by the loss of the

community which can supply the narrative and historical context to

understand the importance of the site. “If steps are not taken soon to eradicate

this problem, the result will be that few late-19th-century African American

sites will be federally or locally protected. This era, and those who

experienced it and their descendants, will remain "without history"

indefinitely.” Barile, at 97.

No more persuasive proof of the cultural and historical importance of

preserving the oral traditions of pre-bellum and post-bellum African-

24
American Communities exists than the recent discovery at the bottom of the

Mobile River in Alabama of the Clotilda, the last slave ship to smuggle

Africans into the United States in 1860, nearly sixty years after Congress

outlawed the Atlantic slave trade in 1867. After the Clotilda arrived in the

United States, its captain, William Foster, burned the ship in an effort to

conceal evidence of the illegal smuggling trip. The 110 Africans aboard were

sold to slave owners. After the Civil War, some of the ship’s survivors

founded Africatown, a neighborhood of about 2000 people still in existence

near downtown Mobile. Stories of the ship and its survivors were told and

retold from generation to generation,23 often in the original African languages

descendants of the ship’s survivors continued to speak long into modern

times. 24 Historians and archeologists often doubted the story precisely

because there were no written records of the ship’s existence. But because

descendants of the original Africatown retained their oral traditions, historians

have now located the remains of the ship and are now able to tell “a story of

23
Sandra E. Garcia & Matthew Haag, Descendants’ Stories of the Clotilda Slave Ship
Drew Doubts; Now Some See Validation, New York Times (Jan. 25, 2018),
https://www.nytimes.com/2018/01/25/us/slave-ship-alabama-
descendants.html?module=inline.
24
Henry Willett, Mobile Community Holds onto Unique Heritage, Alabama State
Council on the Arts: Alabama Folkways Articles (July 1993),
http://arts.alabama.gov/traditional_culture/folkwaysarticles/MOBILECOMMUNITY.asp
x (last visited June 6, 2019).

25
unspeakable cruelty, but also the story of a people who somehow survived

this indignity and many others like it.”25

Like Africatown and the Clotilda, Union Hill is full of stories still

retained in oral traditions and still passed over from one generation to the next.

Historians, archeologists, and ordinary Americans have only just begun to

listen to the first phrases of these breathing stories – the first verses of these

living poems. Placing the compressor station in that community runs the real

risk of doing what 150 years of slavery, war, Reconstruction, and Jim Crow

could not do: tear apart Union Hill and disperse the descendants of its

founders.

CONCLUSION

In One Hundred Years of Solitude, the patriarch of a band of free people

decides to move his family away from their home village. His wife says no,

reminding him that the village is the birthplace of their first child. “We have

still not had a death,” he tells her, and “a person does not belong to a place

until there is someone dead under the ground.”26 For the village’s patriarch,

the marker of belonging to a place is where the dead have come to final rest;

25
Richard Fausset, Alabama Historians: The Last Slave Ship has been Found, New
YORK TIMES (May 23, 2019), https://www.nytimes.com/2019/05/23/us/clotilda-slave-
ship-alabama.html.
26
GABRIEL GARCIA MARQUEZ, ONE HUNDRED YEARS OF SOLITUDE 12 (1970).

26
for his wife, it’s where children have come into life. For the African-

American community of Union Hill, the marker of belonging is both life and

death: the place where the first generation of free people came to life, and

where now their ancestors rest in the ground. Union Hill is a unique, living,

breathing community where the American history of slavery, the Civil War

and Reconstruction resides both in the cemeteries of former slaves and the

memory of their descendants. It deserves our protection and our respect.

For the above reasons, amici respectfully ask the Court to vacate and
remand the permit order for further consideration.

DATED: June 7, 2019

Respectfully submitted,

/s/ Aderson B. Francois

Aderson B. Francois
Taylor Blatz
Georgetown University Law Center
Civil Rights Clinic
600 New Jersey Avenue
Washington, DC 20001
(202) 661-6721
aderson.francois@georgetown.edu

Counsel for Amicus Curiae

27
 APPENDIX

28
Numbers in red refer to census dwelling numbers recorded in the 1860 census for Buckingham County, District
1; in parentheses are the number of slaves owned by the residents of that dwelling. White numbers in black dots
represent plantations locations as noted by the Works Progress Administration surveys conducted in the 1930s,
available to access online through the Library of Virginia website at lva.primo.exlibrisgroup.com.
Excerpt of the Buckingham County slave cemetery map prepared by Carl and Lynn Henshaw.
 CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this motion contains 5728 words, excluding the parts of

the motion exempted by Fed. R. App. P. 32(f).

This motion complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this motion has been prepared in a proportionally spaced typeface using

Microsoft Word in Times New Roman 14-point font.

/s/ Aderson B. Francois

Aderson B. Francois
Counsel for Amicus Curiae

29
 CERTIFICATE OF SERVICE

I hereby certify that on June 7, 2019, I electronically filed the

foregoing brief on behalf of Amicus Curiae with the Clerk of Court using the

CM/ECF System, which will automatically send e-mail notification of such

filing to all counsel of record.

/s/ Aderson B. Francois

Aderson B. Francois
Counsel for Amicus Curiae

30