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Byrd, Rahall wanted ruling made on merit

Sen. Robert C. Byrd and Rep. Nick J. Rahall said Wednesday that they were pleased that a federal court ruling to limit mountaintop removal was overturned.

But both West Virginia Democrats said they had hoped the case would be decided on its substance - instead of on a technicality about court jurisdiction.

"I would have preferred for the Court of Appeals to have based its ruling on the issues that were part and parcel of the case, those involving provisions of the Surface Mining Act and the Clean Water Act that are so important to West Virginians," Rahall said.

"Instead, this case is apparently being used as a stalking horse to advance a much larger agenda that has nothing whatsoever to do with coal mining and environmental protection," Rahall said.

On Tuesday, the 4th U.S. Circuit Court of Appeals overturned the October 1999 mountaintop removal ruling by Chief U.S. District Judge Charles H. Haden II.

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

Coal companies attacked the ruling, saying they would not be able to mine any coal in West Virginia under the restrictions ordered by Haden. Court records showed little proof of those fears.

Still, Byrd led an unsuccessful effort by West Virginia's congressional delegation to pass a legislative rider to overturn Haden.

Byrd and Rahall said Wednesday that they disagreed with Haden's interpretation of the buffer zone, but not with his authority to decide the case.

"I welcome the decision by the Fourth Circuit," Byrd said in a prepared statement issued late Wednesday.

"The District Court's 1999 ruling, I believe, did not properly interpret federal law," he said. "With that in mind, I had hoped that the Appellate Court would have based its ruling on the merits of the case, specifically addressing the proper interpretation of federal law. Instead, the Appellate Court based its ruling on Constitutional grounds."

In its ruling, the 4th Circuit said that Haden did not have jurisdiction to hear the mountaintop removal case. A three-judge panel said that the state's sovereign immunity - protected by the 11th Amendment to the U.S. Constitution - did not allow such a case in federal court. Instead, the panel said, the case should have been heard in state court.

Rahall is ranking Democrat on the House Resources Committee, which oversees strip mining regulation. Now in his 13th term, Rahall was on the conference committee that wrote the final version of the 1977 Surface Mining Control and Reclamation Act.

"It is well-known that I strenuously disagreed with the October 1999 decision handed down in this matter by the U.S. District Court for the Southern District of West Virginia," Rahall said.

"Then, as now, my view was that the court chose to erroneously substitute its own rather unique interpretation of provisions of federal and state law and regulation for those held by agencies of the United States government and the state.

"If left standing, that decision would have placed West Virginia at a competitive disadvantage to other coal-producing states and would not, in my view, have contributed much in the way of greater environmental protection for our citizens."

But Rahall said that Congress intended for citizens to be able to challenge state regulation of coal mining in federal court.

"At stake is whether citizens have the right to access federal courts when they believe they have been aggrieved by their government," Rahall said. "Those who do not believe in this right are playing with a Sword of Damocles because they too may find, at some point, that the courthouse door has been shut to their interests as well."

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

348-1702.


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