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Judge stops deposition in mountaintop removal case

Lawyers for Arch Coal Inc. won't get to quiz federal regulators about their decision to withdraw a proposed permit for the company to expand its Dal-Tex mountaintop removal mine.

On Tuesday, Chief U.S. District Judge Charles Haden II granted the Army Corps of Engineers' request for a protective order against interviews requested by Arch Coal lawyers.

Haden said the answers to Arch Coal's questions could violate the corps' attorney-client privilege. The judge also said the corps' decision may not be a final agency action subject to review by the court.

The judge's decision was the latest in a flurry of last-minute action in what promises to be a landmark lawsuit over mountaintop removal mining.

One part of the lawsuit alleges the state Division of Environmental Protection routinely approves mountaintop removal permits that violate state and federal mining rules.

Related allegations charge that the corps violated the law when it proposed to authorize the Dal-Tex expansion under a blanket, nationwide permit that requires little environmental scrutiny.

Trial is scheduled for July 13.

A settlement on many of the allegations against DEP appears to be possible before the trial. But lawyers are fighting a confusing legal battle over the status of the Dal-Tex corps permit.

St. Louis-based Arch Coal wants a 3,100-acre permit to move the mine into Pigeonroost Hollow in Logan County.

On June 24, the corps withdrew its proposed approval of the permit. The agency said its lawyers had become convinced they couldn't successfully defend the permit against challenges from environmental groups.

Arch Coal filed a cross-claim lawsuit that alleges the corps' action violated its own regulations and the company's constitutional rights.

Last week, Arch Coal's law yers asked to depose Charles K. Stark, chief of program management and implementation at the corps' regulatory branch.

Haden held a telephone hearing Tuesday morning, then filed a written order that granted corps lawyer Steven Rusak's motion to stop the deposition.

Also Tuesday, the West Virginia Highlands Conservancy and other plaintiffs filed a motion supporting the corps' efforts to withdraw permit approval.

Joe Lovett, lead lawyer for the group, argued that the Dal-Tex expansion should have to be authorized through a more rigorous, individual permit.

"Hobet has sought for over a year to use political and economic pressure to exempt its Spruce mine from federal environmental laws," Lovett wrote.

"Now, the corps has frankly acknowledged that such an exemption is legally indefensible and would violate the public interest," he wrote.

"Hobet's response demonstrates ... corporate arrogance and a stubborn refusal to play by the same rules that apply to everyone else."

To contact staff writer Ken Ward Jr., call 348-1702, or e-mail kw...@wvgazette.com.


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