"The proposed consent decree deals with some very technical issues and is a product of months of negotiations," said Joe Lovett, a lawyer for the plaintiffs. "It is important that the court and the public have ample opportunity to review it before it is finalized."
"We have a lot of drafting to do for these regulations," said Brian Glasser, a lawyer for DEP. "But I think that after it's all worked out, it will be accepted."
"The court was not asked to approve the proposed settlement today. The law requires public notice and comment before a consent decree is approved," said Patrick McGinley, a law professor and lawyer for the plaintiffs. "A federal court has an obligation to see that any such settlement is in the public interest."
DEP had asked for a 30-day public comment period, citing state laws which require such input. Haden granted that request, while extending the period to 45 days.
"The public interest in this is so strong, represented by the economic and environmental concerns involved," Haden said. "The public ought to be brought up to speed on this, and the public ought to be given the opportunity to comment meaningfully about it."
Haden also warned against any proposal leaving the case in the same posture as that of the Recht decision. A 1982 state court ruling, the Recht decision was meant to equalize public school funding. Despite the court order, the school funding issue remains contentious and unresolved.
The proposal does not specifically target the Spruce Fork site, mined for Arch Coal Inc. by a subsidiary, Hobet Mining Inc. Neither is party to the consent decree, though lawyers for both told Haden they do not oppose the proposal.
"So that there is no doubt, we support the entry of the consent decree," said Roger Wolfe, a lawyer for Arch Coal.
But Wolfe also said that Arch Coal still believes a federal permit it received for the site is valid. Haden's injunction targets that permit. The agency that granted it, the U.S. Army Corps of Engineers, has since reversed its approval of that permit.
Wolfe also cited Arch's plans to seek a different permit from the corps to allow mountaintop mining at Spruce Fork. Wolfe's remarks prompted Haden to repeatedly remind the lawyer of the scope of his injunction.
"You can prepare it, [the corps] can do what it's going to do," Haden said. "But there's an injunction in place which enjoins the issuance of a permit for the Spruce Fork operations."
To contact staff writer Lawrence Messina, call 348-4869 or send e-mail to Lar...@wvgazette.com.