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Judge nixes efforts to derail mining suit

Coalfield residents and environmental groups may proceed with their lawsuit targeting mountaintop-removal coal mining, a federal judge ruled Friday.U.S. District Judge Charles H. Haden II rejected a flurry of dismissal requests from coal companies and state Division of Environmental Protection Director Michael Miano, all defendants in the suit.The residents and groups contend that Miano's agency has illegally issued permits allowing coal companies to "decapitate the state's mountains and dump the resulting waste in valleys, burying hundreds of miles of headwaters of West Virginia's streams," all to reach buried seams of coal.The residents and environmental groups originally sued Miano, his agency and the U.S. Army Corps of Engineers and some of its officials. The corps issued permits allowing the coal companies to dump waste from mountaintop mining into valleys. It has stopped issuing such permits since the suit's filing.Several subsidiaries of Arch Coal Inc. have managed to intervene in the suit as defendants, as have two coal lobbying groups, the West Virginia Coal Association and the West Virginia Mining and Reclamation Association.The subsidiaries and Miano alleged that the plaintiffs had no legal grounds to file the suit, and that they should have taken other steps before suing. Haden disagreed.Haden concluded that Congress clearly intended for such lawsuits when it passed the Clean Water Act and the 1977 Surface Mining Control and Reclamation Act, the laws which Miano has allegedly broken by issuing the permits.
"The court recognizes Congress provided the citizen suit vehicle in addition to the more traditional judicial review of agency action," Haden's order said.Haden cited records outlining that intent, one of which said that "the success or failure of national coal surface mining regulation will depend, to a significant extent, on the role played by citizens in the regulatory process."Haden further rejected arguments from Miano that laws which normally render public officials immune to lawsuits protect him in this case. Because the plaintiffs seek mainly to block mountaintop mining permits, Miano's 11th Amendment protections do not apply in the suit, Haden concluded."Plaintiffs properly allege violations of federal law, which allegations do not offend the Eleventh Amendment," Haden's order said.Besides wreaking havoc on mountains, forests and waterways, the suit alleges that mountaintop mining has harmed area property values through blasting, damage to water systems and threat of flooding.Additional companies and groups which stand to benefit from mountaintop mining asked to intervene as defendants in the suit late last month. 
To contact staff writer Lawrence Messina, call 348-4869.
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