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Court lets mine ruling stand

The U.S. Supreme Court declined Tuesday to weigh in on the legal battle over mountaintop removal coal mining.

In doing so, the justices left unresolved the key issue of whether huge amounts of waste rock and dirt can be legally dumped into streams.

Without comment, the court refused to review an appeals court ruling that threw out a decision to strictly limit those fills.

That April 2001 decision by the 4th U.S. Circuit Court of Appeals dealt only with which court should hear cases over lax state mining regulation. The appeals court did not consider the broader issue of the legality of valley fills.

Over the next year, that issue could reappear at the Supreme Court, after a similar case pending in the 3rd Circuit Court of Appeals in Pennsylvania is decided.

If that court rules differently than the 4th Circuit did, the Supreme Court — faced with conflicting circuits — might be more likely to accept an appeal.

Also, the West Virginia Highlands Conservancy, which sued in July 1998 to try to curb mountaintop removal, could file a new suit challenging valley fills in state court.

“[The Supreme Court ruling] doesn’t mean a thing as far as Judge Haden’s ruling is concerned,” said Cindy Rank, the conservancy’s mining chairwoman. “He is the only judge who has ruled on the issue, and he has ruled in our favor that the buffer zone doesn’t allow huge valley fills.

“They [the appeals court] didn’t rule on his ruling on that,” she said. “It was only that they said we should have gone to a different court.”

Mountaintop removal mining blasts off entire hilltops to uncover valuable low-sulfur coal seams. Leftover rock and dirt is shoved into nearby valleys, burying hundreds of miles of streams.

In October 1999, Chief U.S. District Judge Charles H. Haden II ruled that a state stream buffer zone rule prohibited valley fills in perennial and intermittent streams.

Lawyers for the state Department of Environmental Protection joined with the coal industry to appeal the case to the 4th Circuit in Richmond, Va.

They alleged that lawsuits against states over lax strip mine enforcement must be filed in state court, not federal court. Conservancy lawyers argued that state mining rules become federal law when they are approved by the U.S. Office of Surface Mining, and that such cases are therefore properly brought in federal courts.

In its ruling last year, the 4th Circuit sided with the DEP and the coal industry.

Lawyers for the conservancy asked the U.S. Supreme Court to review the 4th Circuit decision. Federal regulatory agency lawyers agreed that the 4th Circuit was wrong, but they said the matter wasn’t serious enough to warrant Supreme Court review.

DEP lawyer Ben Bailey said that he was “delighted” that the Supreme Court declined to hear the appeal.

“It’s been a long and fascinating case, and I thought all along that this kind of case should have been in state court, so I think it was the correct ruling,” Bailey said.

Matt Crum, director of the DEP Division of Mining and Reclamation, said, “We believe this action by the Supreme Court will remove a cloud that had been hanging over the mining program, and allow us to proceed.”

DEP Secretary Michael Callaghan said, “We are pleased that the highest court in the land recognized, as we did, that these are state matters that ought to be settled on the state level.

“It has been our position that the state has been properly maintaining its regulatory program,” Callaghan said in a prepared statement. “We believe if there should be any challenges to that program, those items should be settled in West Virginia by West Virginians. We are very pleased that the high court sees this matter in the same way.”

“We’ll continue to pursue whatever avenues we can to uphold the buffer zone rule being enforced the way we believe it should be enforced,” Rank said, “and the way that Judge Haden said it should be enforced.

“The state is destroying Southern West Virginia,” she said. “Let us hope that the state doesn’t continue to do what they’re doing.”

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


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