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Corps of Engineers seeks to delay motions in mining case

Citing new information that could affect the case's outcome, lawyers for the U.S. Army Corps of Engineers late Tuesday asked a judge to delay action on several procedural maneuvers in a lawsuit over mountaintop removal.Assistant U.S. Attorney Steven Rusak asked Chief U.S. District Judge Charles Haden II to not rule on motions concerning depositions of Corps officials by lawyers for environmentalists.Rusak also asked that Haden not rule on the Corps' motion to break the trial into separate segments, and deal with allegations against the state Division of Environmental Protection before those against the Corps.The delay motion does not appear to be related to negotiations toward a potential settlement of parts of the suit.In court papers, Rusak told Haden that "new material facts ... which could affect the outcome of this litigation" had been discovered concerning the Corps' processing of a Clean Water Act permit for Arch Coal Inc.'s Spruce No. 1 Mine in Logan County."As a result, an immediate further inquiry by counsel is necessary before the United States can make representations to the Court regarding the proposed [Clean Water Act] authorization," Rusak wrote.Rusak, reached by phone at his office in Washington, D.C., declined to elaborate.In July 1998, the West Virginia Highlands Conservancy and a group of coalfield residents sued the Corps and DEP. They allege both agencies ignore environmental laws in permitting mountaintop removal mines.
Haden has scheduled trial to start July 13.On June 2, lawyers for the citizens filed a notice that they wanted to question Corps officials before the trial.In the notice, the lawyers said they wanted to ask the Corps about any discussions concerning the Arch Coal permit held with company officials or representatives of West Virginia's congressional delegation.On June 9, Rusak filed a motion for a protective order to prevent the deposition. Last week, a hearing on that motion was scheduled for July 1 before U.S. Magistrate Jerry Hogg.On Tuesday, Rusak asked to delay further briefing and consideration of the protective order motion until Monday.Rusak also asked for a delay in consideration of the motion to separate the trial, and a motion by the environmentalists to add certain documents to the administrative record of the Corps permit.Rusak also asked Haden to delay the deadline for filing of the case's pretrial order and proposed findings of fact and conclusions of law. The pretrial order is scheduled to be due today.
Haden did not immediately rule on Rusak's motion.Also Tuesday, U.S. Office of Surface Mining Director Kathy Karpan issued new guidance that the approximate original contour reclamation rule does not apply to the footprint of valley fills.

To contact staff writer Ken Ward Jr., call 348-1702, or e-mail

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