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Land firms try to join strip-mine lawsuit

Large land-holding companies should not be allowed to fight a lawsuit which seeks to curb mountaintop removal strip mining, lawyers for environmentalists say.

Environmental lawyer Joe Lovett says the land companies do not have direct interest in the outcome of the case and therefore should not be allowed to intervene.

"Environmental enforcement suits often have social and economic repercussions," Lovett wrote. "But this does not mean they should be transformed into a forum for all affected parties to raise their objections."

Mountaintop removal blasts off hilltops to reach coal seams under them. Leftover rock and earth is dumped into nearby streams and valleys.

In mid-July, the West Virginia Highlands Conservancy and a group of coalfield residents filed suit in U.S. District Court in Charleston to try to rein in giant mountaintop removal mines.

The suit alleges, among other things, that the state Division of Environmental Protection has permitted mountaintop removal mines in violation of the federal Clean Water Act and the Surface Mining Reclamation and Control Act.

Named as defendants in the suit were the DEP and the U.S. Army Corps of Engineers.

On Tuesday, Chief U.S. District Charles Haden agreed to delay until Dec. 10 a hearing on a preliminary injunction to temporarily halt the issuance of new mountaintop removal permits. The hearing was originally scheduled for Nov. 12.

Haden has already allowed three Arch Coal Inc. subsidiaries and two coal-industry trade associations to intervene in the case.

In late September, Western Pocahontas Properties and the National Association of Coal Lessors asked Haden to let them intervene as well.

Lawyers for the company and the association argued that any further limitations on mountaintop removal would keep them from making as much money from their coal holdings.

Typically, large land companies lease their coal rights to coal companies, which mine the coal and pay the companies a royalty on it.

Late last week, environmentalists filed a nine-page motion to oppose the land groups' intervention.

In the motion, Lovett cited court cases that ruled parties that want to intervene in such cases must have strong and direct interests in the cases' outcome.

In those rulings, courts held that economic effect on property interests "does not create a protectable interest in litigation concerning a statute that regulated environmental, not economic interests."

In the motion, Lovett also questioned why the current intervenors cannot adequately represent the land owners.

Lovett revealed that Western Pocahontas is a member of the West Virginia Coal Association, which has already intervened in the case. He also noted that many other land companies are also members of the coal association.

"While coal owners contend that current parties including the coal associations cannot adequately represent their interests, they fail to disclose that members of the West Virginia Coal Association include other coal owners and lessors that stand in precisely the same shoes as they do," Lovett wrote.

"Like coal owners, other members of the West Virginia Coal Association, including coal operator members, own vast tracts of fee land and coal in West Virginia. These members of the West Virginia Coal Association, whose interests are identical to those of the proposed Coal Owner Intervenors, include Pocahontas Land Company, Dickinson Company/Southern Land Company, Ber Land Company, Cotiga Development Company, and Dingess Rum Properties Inc."

 

To contact staff writer Ken Ward Jr., call 348-1702.


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