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U.S. asks Haden to suspend fill ruling

The Bush administration said Monday that a federal court ruling to limit mountaintop removal “casts a tremendous cloud of uncertainty over all future coal mining in Appalachia.”

Department of Justice lawyers asked Chief U.S. District Judge Charles H. Haden II to suspend his May 8 ruling pending an appeal.

They also asked Haden to clarify that his ruling “should be read as not applying nationwide or to activities other than coal mining.”

In legal papers filed Monday, the federal government said that if Haden’s decision stands, “companies will almost certainly suspend future coal mining projects in the region, lay off existing workers and abandon plans for hiring new ones.

“The ripple effects of such actions would be felt throughout the region, with devastating implications not only for the tens of thousands of people directly employed by the coal mining industry, but the many thousands of other people who live there,” says the government’s request for a stay.

Coal industry lawyers are expected to file papers making similar arguments.

Lawyers for Kentuckians for the Commonwealth, the citizen group that sought the ruling, will have a chance to respond before Haden rules on the motion for a stay.

A formal appeal of Haden’s decision will go to the 4th Circuit Court of Appeals in Richmond, Va.

In April 2001, the 4th Circuit overturned a previous mountaintop removal ruling by Haden. But that case was decided on a jurisdictional technicality, not on the merits of Haden’s analysis of mining laws.

In his new, 47-page ruling, Haden said that coal mining valley fills are generally not allowed under the federal Clean Water Act.

Haden said that Section 404 of the law allows such fills only if they are being proposed to serve a constructive purpose other than disposal of waste rock and dirt.

Under the law, Haden concluded, the Corps of Engineers can only authorize valley fills if they are proposed as part of a post-mining land development plan.

Haden blocked the corps from issuing new permits for new valley fills.

In their legal brief filed Monday, Justice Department lawyers argued that Haden issued an injunction that was overly broad.

They cited a 2001 case in which the 4th Circuit said that injunctions “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”

In this case, government lawyers said, Haden could have simply blocked the corps from authorizing fills at a specific mining site challenged by the citizen group lawsuit.

They also argued that Haden went too far in interpreting the Clean Water Act itself, rather than simply analyzing regulations that the corps had written.

“The court itself raised this important issue for the first time in its decision, and ruled on it without affording the parties any opportunity to brief it,” the government lawyers argued.

Nine days after his October 1999 valley fill ruling, Haden agreed to suspend the decision pending appeal.

At the time, Haden said that lawyers for the coal industry and the state Department of Environmental Protection had not made a strong enough legal argument for granting the suspension.

But the judge cited a “firestorm of reaction” against the ruling, and granted the stay anyway. “The shrill atmosphere of discord must subside so that our Court of Appeals and this court are able to address the crucially important legal issues,” Haden wrote.

Since Haden’s ruling last week, the only uproar has been immediate critical reaction by the coal industry.

The Wise administration has said only that it is reviewing the ruling. Members of West Virginia’s congressional delegation have not commented.

In its legal papers Monday, the Bush administration sought to portray the situation as just as dire as the 1999 ruling.

The agency provided sworn statements from Glenda Owens, deputy director of the U.S. Office of Surface Mining; Carl E. Campbell, commissioner of the Kentucky Department for Surface Mining Reclamation and Enforcement, and William Grable, executive director of the Kentucky Coal Council.

Grable said, “Judge Haden’s ruling will have a severe and irreparable effect on the economy of the state, but will be felt more heavily in the counties where coal is extracted and employment is most dependent upon it being mined.”

Campbell said that the ruling would affect most of the 526 applications for new or expanded surface mines pending with his agency.

In her statement, Owens argued against post-mining development of valley fill sites, which Haden said is the only legal justification for allowing the fills.

“Typically, those post-mining land uses are established not on the site of the fill, which is used solely for spoil disposal, but at the location of the former mining operation,” Owens said.

Owens said that the ruling could affect 70 applications for new mining permits and 15 applications for permit revisions in West Virginia.

On Monday, DEP Director Michael Callaghan said that his agency had been asked by the Justice Department to provide an affidavit about those permits.

Callaghan said his agency did not do so because it hasn’t finished its analysis of which permits would be affected by the ruling. Some of those permits, Callaghan said, may propose — or be able to propose — post-mining development that would meet the legal criteria outlined by Haden.

“As of today, we don’t have a game plan,” Callaghan said. “We’re trying to get our arms around something and our arms aren’t all the way around it yet.”

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


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