Like lawyers representing environmentalists, attorneys for Arch Coal Inc. want a federal judge to issue summary judgment on two key issues in the mountaintop removal mining case. They just want the judge to rule the other way. Arch Coal subsidiary Hobet Mining on Friday asked Chief U.S. District Judge Charles Haden to rule that mountaintop removal mines don't violate stream buffer zone rules or approximate original contour reclamation guidelines. Two weeks ago, the West Virginia Highlands Conservancy asked Haden to rule on a summary judgment motion that the state Division of Environmental Protection issues permits that violate the two rules. Judges rule on summary judgment motions when there are no disputed issues of fact, and only arguments over interpretation of the law. In the mountaintop removal case, a summary judgment ruling, no matter which way it goes, could resolve many of the issues and make a July trial much more simple, or even unnecessary. Hobet lawyer Bob McLusky called the environmentalists' argument about stream buffer zones "myopic." The conservancy argued that the buffer zone rule - which prohibits mining within 100 feet of streams - makes valley fills in perennial and intermittent streams illegal. Valley fills can still be built in much smaller, ephemeral streams, the group says. "The buffer zone rule ... was never meant to be read in such a fashion," McLusky wrote in a brief filed Friday. "Nothing in its language suggests that its requirements are to be applied myopically to particular stream segments, rather than to streams as a whole," he wrote. "Indeed, the interpretations of water laws and surface mining laws proposed by the plaintiffs in support of their claims have been routinely rejected and, if accepted, would prohibit not only coal mining but a great number of other industrial and construction activities." In his brief, McLusky also argued that valley fills do not have to comply with the approximate original contour, or AOC, reclamation standard. McLusky noted that the U.S. Office of Surface Mining stated in a February report to Congress that valley fills are exempt from AOC requirements. Also Friday, the United Mine Workers filed court papers agreeing with Arch Coal's stance on the summary judgment issues. UMW lawyer Jim Haviland also argued, however, that many of the issues in the case - especially the balancing of harms - remain "sharply disputed and [are] not an appropriate subject for summary judgment." DEP lawyers did not file a response to the environmentalists' summary judgment motion. Agency lawyer Russ Hunter said DEP's new outside attorneys, Ben Bailey and Brian Glasser, needed more time and would not file a response until Tuesday.
To contact staff writer Ken Ward Jr., call 348-1702.