Haden ruling turned tide against mines

Coal operators and environmentalists agreed Thursday that a judge's ruling to block the largest permit in state history is a major turning point in the battle over mountaintop removal mining.Officials from Arch Coal Inc. said they have some serious decisions to make about strategy for court appeals and timetables for potential employee layoffs.Lawyers for environmental groups say they finally have official vindication of their argument that thousands of acres of mining have been approved in violation of federal laws.The ruling by Chief U.S. District Judge Charles Haden II could delay the company's Spruce No. 1 Mine by more than six months. Arch Coal says it is losing $1 million every month that it can't open the mine, and that more layoffs are possible soon without the new permit.In a 47-page ruling, Haden granted a preliminary injunction that halts the 3,100-acre mine proposed for Pigeonroost Hollow near Blair, Logan County, as an expansion of the Dal-Tex mining complex there.Haden said permanent destruction of mountains, streams and wildlife outweighed any short-term economic losses to Arch Coal subsidiary Hobet Mining and its employees."It changes the whole tenor of the debate over mountaintop removal," said Jim Hecker, a lawyer for the West Virginia Highlands Conservancy."All we have heard all along from the industry and [the state Division of Environmental Protection] is that they are fully in compliance with the law," Hecker said. "This says that isn't true - that there are major changes needed in the program and major violations of federal law that are having a major effect on the environment." Mountaintop removal mines blast off entire hilltops. Huge earth-moving equipment digs out valuable, low-sulfur coal reserves. Leftover rock and earth is dumped into nearby valleys, burying streams.In July 1998, the Highlands Conservancy and a group of coalfield residents filed suit to curb mountaintop removal. They accused the state Division of Environmental Protection and the U.S. Army Corps of Engineers of a "pattern and practice" of approving permits that don't comply with federal environmental and mining laws.Cindy Rank, mining chairwoman for the Highlands Conservancy, praised the judge's ruling, especially portions that described what Haden saw in a flyover of mountaintop removal sites."I find it encouraging to know that someone who has not been involved in the debate to date - an objective bystander with the credibility the judge has - can look at it from that view and see what he saw," Rank said. "It validates the gut reaction that some of us have but don't often have supported by people in positions of authority."
The preliminary injunction issued Wednesday remains in effect through the end of the trial.Hobet's lawyers from the firm Jackson & Kelly filed a notice of appeal Thursday, indicating that they will ask the 4th U.S. Circuit Court of Appeals to throw out Haden's injunction.But Roger Wolfe, lead lawyer for Hobet, said he is no longer confident the coal industry will win the "pattern and practice" case that challenges mountaintop removal permitting.
"I can't be real optimistic about the chances of Judge Haden ruling differently on the same kinds of issues in the pattern and practice case," Wolfe said Thursday."This is the most scrutinized permit in the history of the state of West Virginia," Wolfe said. "If if doesn't pass, what does that say about the others?"Wolfe, however, added that he disagrees strongly with Haden and will challenge the judge on appeal."It is my belief that the judge is mistaken," Wolfe said. "I think the DEP did as good a job and the Corps of Engineers did as good a job reviewing this permit as they could have done."Ben Greene, lobbyist for the West Virginia Mining and Reclamation Association, described the judge's ruling as "cruel and unusual.""He locked up the whole process, which is fairly punitive and penal," Greene said. "He gives no consideration to the employees down there, which is very unfortunate."
Michael Gheen, chief of permitting for the Corps office in Huntington, said he doesn't think his agency will join in Hobet's appeal of the injunction.DEP Director Michael Miano said his agency probably won't appeal either, but stuck by his view that mountaintop removal mines are being legally approved."I feel that we were properly reviewing permits and that permits were properly issued," Miano said. "I still believe there are no significant impacts from mountaintop removal and valley fills."I do not believe that a change in topography is a major environmental impact."
To contact staff writer Ken Ward Jr., call 348-1702.
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