The Charleston Gazette
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Mining dispute heats up
Mountaintop coal removal isn't feds' concern, DEP says

By Ken Ward Jr.
Friday December 8, 2000

On Thursday, a federal appeals court questioned whether citizens could go to federal court to try to limit mountaintop removal coal mining.

A three-judge panel of the 4th U.S. Circuit Court of Appeals grilled lawyers for citizens groups, the coal industry and the state Division of Environmental Protection.

During a 90-minute hearing, the judges focused on arguments by DEP lawyer Ben Bailey and industry lawyer R. Hewitt Pate that the case didn't belong in federal court.

"The language of the statute talks about state law, state law, state law," said Judge Paul V. Niemeyer.

At the federal courthouse here, Niemeyer and Judges J. Michael Luttig and Karen J. Williams heard oral arguments in the appeal of Chief U.S. District Judge Charles H. Haden II's ruling to limit mountaintop removal.

In October 1999, Haden said that a stream buffer zone rule prohibits coal operators from dumping waste rock and dirt into perennial and intermittent streams. Valley fill waste piles are allowed only in smaller, ephemeral streams, Haden ruled.

As a key part of their appeal, lawyers for state regulators and coal operators say that the buffer zone rule is a state regulation. As such, they say, a lawsuit over it does not belong in federal court. Such suits belong in state court, they say.

In his ruling, Haden concluded that the state strip mine rules were incorporated into federal law when the U.S. Office of Surface Mining gave states authority to police mining within their borders.

Bailey said that, since the Haden decisions, three other cases have been filed against DEP in federal court. All three challenge other aspects of mountaintop removal permits approved by DEP.

"Unless this court wants district courts to become preliminary permit reviewers, I urge you to reverse Judge Haden on jurisdictional grounds," said Bailey, a partner with the Charleston firm Bailey & Glasser.

On Thursday morning, the case drew a three-judge panel that consisted of some of the 10-judge circuit's most conservative members. Niemeyer is a Reagan appointee; Luttig and Williams were appointed by President Bush.

Niemeyer and Luttig peppered lawyers with questions, mostly about jurisdiction.

Williams said nothing during the hearing.

About 100 people packed the courtroom, just across the street from the Virginia State Capitol complex.

A herd of coal industry officials and lawyers attended. So did DEP Director Michael Castle, in-house DEP lawyer Russ Hunter and agency publicist Andy Gallagher. Several representatives of national environmental groups attended. State citizen group lawyers had advised their clients against a large turnout.

The court may not rule until early next year. Haden's decision is temporarily suspended pending the appeal.

The mining case was the first oral argument of the day, and the judges spent longer than the 60 minutes they previously allotted.

Niemeyer and Luttig used the additional time to interrogate Jared Goldstein, a Department of Justice lawyer who represents federal regulatory agencies.

Luttig repeatedly asked Goldstein to explain what provision of the federal strip mining law "incorporates" state regulations into federal law. He wasn't satisfied with the lawyer's answers. "As I say to my law clerks, you've got one sentence," Luttig lectured Goldstein. "Tell me what that provision is."

Goldstein stumbled and tried to answer. "The federal law tells us they have to comply with their state program."

Niemeyer jumped in. "Congress wanted ... the states to be the exclusive regulator of these mines," he said.

As long as states have programs approved by OSM, Niemeyer said, federal officials have to stay out of the matter.

Goldstein replied, "I'm not certain if I agree with that. Actually, I'm sure my clients don't agree with that."

Jim Hecker, a citizen group lawyer with the firm Trial Lawyers for Public Justice, told the court that Congress clearly intended to allow citizens to sue state mining regulators in federal court.

When the federal strip mine law was debated in 1977, Hecker said, lawmakers twice rejected amendments that would have specifically blocked such suits.

"That's the most concrete evidence we have," Hecker said.

Luttig and Niemeyer also questioned lawyers about coal industry allegations that Haden's decision will shut down all mining in West Virginia.

Neimeyer asked citizen group lawyer Joe Lovett, "You want to redefine how surface mining is done?"

Lovett replied, "Surface mining has developed to the point that the coal companies simply stopped complying with provisions of the regulations.

"I believe this type of mining is completely legal, that includes filling valleys, as long as it is strictly limited to ephemeral streams, and those areas are quite large," said Lovett, a lawyer with the public interest firm Mountain State Justice.

Lovett said that operators could put more of the rock and dirt they remove back onto hilltops, instead of into streams. He said they could move valley fills farther up hillsides, into smaller ephemeral streams.

"Wouldn't that be an engineering feat of some proportion?" Luttig asked.

Lovett said, "Many of them do it already. It just costs more money. [But] I don't want to mislead the court. There may be some cases where mines couldn't be as large."

Pate, the industry lawyer, emphasized to the court that he also represents the United Mine Workers union.

Niemeyer joked, "I've never heard of an alliance like that before today."

Pate said the industry-UMW team showed that, "This is a case of great importance to the coal industry in West Virginia and to the people who work for it."

Pate went on to argue that valley fills do not really have an "adverse" effect on the streams they bury.

"It's important to conclude that the word �adverse' not be read - as the district court did - to require an extreme prohibition on any effects," said Pate, who works for the corporate firm Hunton & Williams.

Pate said, "You cannot read the prohibition on adverse effects to mean not a teacup, as the district court did."

Luttig asked Pate, "Is the thinking that if a valley fill is placed in a stream, the stream is diverted or rerouted?"

Pate said, "That is certainly what takes place as a practical matter with respect to fills."

Luttig asked how a valley fill could be put into a stream and "not adversely affect the flow or gradient" of that stream.

"The word �adverse' has a significance factor as it's been understood," Pate replied.

Luttig said, "How could it not be significant? How could it not adversely affect the flow or gradient?"