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Mining hearing today; ruling hurts citizens

RICHMOND, Va. - Over the last year, coal operators and mine workers have fought a federal court ruling to limit mountaintop removal in press conferences, protests and Congressional power plays.

Today, they will take their battle back into the courtroom.

This morning, a three-judge panel of the 4th U.S. Circuit Court of Appeals will hear oral arguments in the challenge of Chief U.S. District Judge Charles H. Haden II's mining decision.

In October 1999, Haden said that a stream buffer zone rule prohibits coal operators from dumping waste rock and dirt into perennial and intermittent streams. Valley fill waste piles are only allowed in smaller, ephemeral streams, Haden said.

Lawyers will not find out until just before the hearing which of the circuit's 10 active judges will decide the case.

But already, the appeals court here has rebuffed the West Virginia Highlands Conservancy and other citizens who support Haden's decision.

In a procedural ruling, the court said that citizen groups' lawyers must share their 30 minutes of argument time with lawyers for federal environmental regulatory agencies.

In a July 1998 lawsuit, the Conservancy and a group of other coalfield residents asked Haden to block coal companies from burying hundreds of miles of streams under huge valley fills.

Following the October 1999 ruling, the state Division of Environmental Protection, the coal industry, the U.S. Army Corps of Engineers, and the United Mine Workers appealed Haden's decision to the 4th Circuit.

Basically, the appeals make three arguments:

  • The buffer zone does not apply to valley fills.

  • Even if it does, coal operators can receive variances if they obtain separate "dredge-and-fill" permits under the Clean Water Act from the Corps.

  • Regardless of what the buffer zone means, the federal court did not have jurisdiction in a dispute over how state regulators police mountaintop removal.

Normally, 4th Circuit rules allow each side in an appeal 20 minutes of oral argument. In this case, the court gave each side - those who appealed Haden's decision and those who support it - 30 minutes.

In April, the U.S. Department of Justice took a middle-of-the-road stance in its initial brief filed with the appeals court.

Federal officials said that Haden was right to say that the buffer zone ruling applies to valley fills. But they said the judge was wrong to conclude that the rule bans all valley fills in perennial and intermittent streams.

Some fills are allowed, federal officials said. The appeals court should send the case back to Charleston so Haden can decide how big fills could be.

Coal operators and the state Division of Environmental Protection were outraged by the Justice Department's legal position. Previously, the federal government agreed with DEP and the industry that the buffer zone rule didn't apply to valley fills.

So lawyers for the industry and the Underwood administration asked that the federal government take a share of the citizens' hearing time. Citizen lawyers thought the court should extend the hearing even more, and give that additional time to the federal government, or give federal lawyers part of the time allotted to the state and the industry.

Last month, the 4th Circuit sided with the industry and the DEP.

So this morning, lawyers for the Conservancy and other citizens will get only 20 minutes to make their case.

Joe Lovett, who is a lawyer with the Charleston public interest firm Mountain State Justice, and Jim Hecker of the Washington group Trial Lawyers for Public Justice, will argue for the citizens.

Jared Goldstein, a Justice Department environmental lawyer, will argue for the federal government.

Lawyers for the DEP, the West Virginia Coal Association and other industry groups will split the other half-hour of argument.

Ben Bailey, a Charleston lawyer hired by DEP, will argue for DEP. R. Hewitt Pate, a lawyer with the firm Hunton & Williams, will argue for the industry.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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