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More time sought for mining appeal

Federal government lawyers on Tuesday asked the U.S. Supreme Court for more time to consider filing an appeal in a landmark mountaintop removal mining case.

The move signals that federal agencies could challenge an appeals court decision that overturned a West Virginia judge's ruling to limit mountaintop removal.

When government lawyers seek a review of a lower court ruling, the U.S. Supreme Court is much more likely to agree to hear the case.

In April, the 4th Circuit Court of Appeals reversed an October 1999 mountaintop removal ruling by Judge Charles H. Haden II, chief U.S. District judge for the Southern District of West Virginia.

Haden had ruled that a federal stream buffer zone rule prohibited coal operators from dumping waste rock and dirt in most state streams and creeks.

Lawyers for the state Department of Environmental Protection and the coal industry appealed Haden's ruling. Among other things, they argued that the case didn't belong in federal court.

In its ruling, a three-judge panel of the 4th Circuit agreed that Haden should not have heard the case in the first place. The panel said that disputes over state enforcement of strip mine rules belong in state courts, not in front of federal judges.

The full 4th Circuit declined to reconsider the panel's decision.

Neither the panel nor the full court considered the merits of the case. The appeals were decided only on the question of which court should hear the case.

Federal government lawyers have argued that disputes over mining rules do belong in federal court. Congress specifically allowed such cases when it wrote the 1977 federal Surface Mining Control and Reclamation Act, government lawyers said.

The West Virginia Highlands Conservancy and the federal government have until Oct. 11 to ask the Supreme Court to hear an appeal of the 4th Circuit's ruling.

In a petition filed Tuesday, Solicitor General Theodore B. Olson asked for another month to consider whether to appeal. Olson is the federal government's chief lawyer.

In the six-page petition, Olson described the government's view of court jurisdiction in the case this way:

"The federal parties maintained that the West Virginia [mining] program for regulation of surface mining administered by state officials, which had required the Secretary [of the Interior's] approval before it could be implemented, was sufficiently federal in character that it constituted federal law that could be enforced" in federal court."

Olson added that "The Solicitor General has not yet decided whether to authorize the filing of a petition" for the court to hear an appeal.

"The additional time is needed to that the Solicitor may consult with the government regarding the legal and practical consequences of the court of appeals' decision, and, if the petition is authorized, to prepare and print it," Olson wrote.

The Supreme Court receives thousands of petitions for appeal every year, but agrees to hear a very small number of cases.

A 1994 Harvard Law Review study found that the court agreed to review less than 4 percent of the cases presented to it.

A separate study in 1992 reported that the court agreed to hear 88 percent of the cases where the federal government supported the petition for appeal, according to the legal Web site FindLaw.com.

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


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