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Still no settlement in mountaintop mining case

Another week has passed without a settlement being reached in a federal court case over mountaintop removal mining.By late Friday, no proposed deals were filed in U.S. District Court in Charleston. A federal judge, however, refused another request to delay the trial again.Chief U.S. District Judge Charles H. Haden told lawyers in the case that the Aug. 2 trial date would stand.Ben Bailey, a private lawyer hired to represent the state Division of Environmental Protection, had asked Haden on Thursday to postpone the trial.In a letter to the judge, Bailey said he has a trial in a civil case scheduled the same day in Marshall County Circuit Court. Judge Mark A. Karl refused to reschedule that case, Bailey said."Because I have personally been involved in key depositions and preparations in both cases, it is not really feasible for other lawyers (in my small firm or from other firms) to substitute for me in either one," Bailey said.In a letter also dated Thursday, Haden rejected the delay.Haden noted that he originally scheduled the mountaintop removal trial for September, but moved up the date to July 13 at the request of coal operators and DEP.Then, on July 9, Haden delayed the trial for three weeks to give the lawyers time to put the finishing touches on a settlement resolving most of the issues.
"Now, I am pressed to grant a continuance of the entire case because of the obligation of one lawyer to be in two courts at the same time," Haden said in his Thursday letter to lawyers in the case."At the same time I moved the case, I explained to each of you that my schedule was full from that week forward to the indefinite future," Haden wrote."So confronted with your request, I am also required to address the necessity of resolving the entire mountaintop litigation issue," the judge wrote. "So far as I am aware, there are many matters to be resolved, and in spite of the time I have given the parties and assurances given me, the case is not in a posture of resolution without trial."Haden told Bailey that, "your named partner or other personnel in your firm must be prepared to go forward with the defense of your client in my court on Aug. 2."Haden filed the two letters with the federal court clerk on Friday.In July 1998, the West Virginia Highlands Conservancy and a group of coalfield residents sued DEP to try to limits its permit of mountaintop removal mining.
On July 9, Joe Lovett, a lawyer for the citizens, told Haden that a proposed settlement should be filed by early the following week. On July 16, lawyers in the case said the had run into some delays, but would file a settlement by early this week.On Friday, the lawyers declined to comment on their delays.Earlier, the lawyers had said they settled all of the issues except a dispute over applying the 100-foot stream buffer zone rule to valley fills. They planned to ask Haden to rule on that issue based on legal briefs, rather than a trial.

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

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