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Citizens' group takes mining appeal to Supreme Court

Coalfield residents and environmentalists on Thursday asked the U.S. Supreme Court to revive a lawsuit to limit mountaintop removal coal mining.

Bragg case

Download the Petition for Cert here.

Download the appendix to the Petition for Cert here.

(Adobe Acrobat required for .pdf files)

Lawyers for the West Virginia Highlands Conservancy and other residents asked the justices to hear an appeal of a lower court ruling that threw out their federal court case.

In a 30-page petition, the lawyers argued that the 4th Circuit Court of Appeals ruling "disrupts federal and citizen enforcement" of the 1977 Surface Mining Control and Reclamation Act.

"The Fourth Circuit has fashioned an unprecedented interpretation of federal-state relations under SMCRA," the petition said.

"If that interpretation is not rejected by this court, it will disrupt the primary federal enforcement mechanisms in SMCRA, contrary to the express intent of Congress."

In April, the 4th Circuit overturned an October 1999 decision by Chief U.S. District Judge Charles H. Haden II to limit mountaintop removal.

Mountaintop removal mines blast off entire hilltops to uncover coal seams. Leftover rock and dirt are dumped into nearby hollows, burying streams. These valley fills have destroyed hundreds of miles of Appalachian streams.

Haden had ruled that a stream buffer zone rule prohibited coal operators from dumping waste rock and dirt into perennial and intermittent streams.

Lawyers for the state Department of Environmental Protection and the coal industry appealed. They argued that Haden should not have heard the case in the first place. They said that disputes over state enforcement of mining rules belong in state courts.

In its ruling, a three-judge panel of the 4th Circuit agreed. The judges never considered the merits of Haden's ruling on the buffer zone. Instead, they threw out the case on strictly jurisdictional grounds.

The 4th Circuit ruling said that when states adopt their own strip mining rules, and those are approved by the federal government, federal courts no longer have a role in enforcing those rules.

In their petition to the Supreme Court, citizen group lawyers ask the justices to consider whether citizens can file suit in federal court to force state regulators to comply with federal strip mine guidelines.

The petition outlines four arguments in favor of Supreme Court consideration of the case:

The 4th Circuit's ruling conflicts with prior Supreme Court decisions that allowed state officials to be sued over continuing violations of federal laws.

Under this argument, the citizen group lawyers state that DEP violated a federal law that requires states cannot approve permits that violate SMCRA or their own state mining regulations. The original lawsuit alleged that DEP improperly issued permits that violated the buffer zone rule.

The 4th Circuit ruling raises an issue of national importance: whether federally approved state strip mine rules may be enforced by the federal government or in federal court.

When it wrote SMCRA, Congress specifically allowed citizen suits in federal court.

"The Fourth Circuit's decision is ... inconsistent with the plain language of the statute, OSM's long-standing administrative interpretation, and the legislative history," the petition said.

The 4th Circuit's opinion conflicts with previous Supreme Court decisions that allow federal oversight of state environmental enforcement.

If the 4th Circuit's theory is upheld, the petition says, it could gut the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act.

The 4th Circuit ruling conflicts with current West Virginia state Supreme Court opinions.

"This disagreement creates confusion in West Virginia about the validity and content of West Virginia's state mining program," the petition said. "The mining industry and the public do not know whether federal law continues to apply, and therefore cannot determine with certainty the standards against which mining activity is to be regulated and enforced."

The citizen groups are represented by Joe Lovett of the Charleston public interest firm Mountain State Justice; Jim Hecker and Arthur Bryant of Trial Lawyers for Public Justice, a public interest firm in Washington; Pat McGinley, a West Virginia University law professor; and Suzanne Weise, a Morgantown lawyer.

The Supreme Court agrees to hear a small percentage of the cases brought to it each year.

Last month, the U.S. Department of Justice asked for more time to decide if it wants to appeal the 4th Circuit's mining decision. The court granted an extension until Nov. 10.

DEP and coal industry lawyers have 30 days to respond to the citizen group petition.

If the court agreed to hear the mining appeal, the case might not be argued until sometime next year.

To read the citizen group petition and other documents about the mining case, visit the Gazette Online at http://wvgazette.com.

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


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