As a federal judge moved a mountaintop removal lawsuit closer to trial, negotiations toward a possible settlement of the case appeared to be in trouble Friday.
Industry negotiators had proposed tougher restrictions on mine blasting and a costly plan for companies to turn land over to a trust for public uses, according to a settlement proposal reviewed by The Charleston Gazette.
In exchange, the industry wanted the West Virginia Highlands Conservancy to drop its claims that filling in creeks with millions of tons of rock and earth valley fills violates a federal stream buffer zone rule, according to the proposal.
The conservancy agreed to keep talking about the proposal, but coal operators pulled out of key parts of the potential deal, according to sources on both sides.
At the same time, Chief U.S. District Judge Charles Haden II denied efforts from both sides to have the case decided solely on legal arguments, rather than by testimony at trial.
"The court remains firmly of the opinion that the issues of fact and law in the case can be resolved fully and appropriately in a trial on the merits," Haden wrote in a two-page order filed Friday morning.
Haden scolded lawyers for seeking summary judgment, after he told them not to when he agreed in March to move up the trial date from September to July 13.
"The court then provided a scheduling order expediting the trial and purposely providing no date for dispositive motions," Haden wrote. "Despite the language of the order, the parties have ignored it and attempted to insert motions for summary judgment into their sought-after foreshortened trial schedule."
On Thursday, Haden approved a previous partial settlement of the lawsuit.
That agreement, reached in December, settled the conservancy's claims that the U.S. Army Corps of Engineers improperly permitted valley fills in violation of the Clean Water Act. Under the agreement, federal regulators agreed to conduct a two-year environmental impact study on mountaintop removal and to subject mining permits to more scrutiny in the meantime.
Negotiations have continued behind closed doors on other claims, which allege the state Division of Environmental Protection violates numerous mining and water pollution laws in permitting mountaintop removal.
One claim is that valley fills are not allowed under a federal regulation which prohibits mining within 100 feet of streams. If upheld by a court, that claim could lead to serious limitations on the size of streams buried by mountaintop removal.
In the last few weeks, the broad outline of a possible settlement was worked out by DEP lawyer Brian Glasser, coal industry lawyer Terry Sammons and Joe Lovett, lead lawyer for the environmentalists.
According to the summary reviewed by the Gazette, the terms included:
The conservancy and other plaintiffs dropping their buffer zone claims.