(Excerpted from Ken Ward’s articles on December 7 & 8, 2000 in the Charleston Gazette.)

On December 7 & 8, 2000, a three-judge panel of the 4th U.S. Circuit Court of Appeals heard oral arguments in the challenge of Chief U.S. District Judge Charles H. Haden II’s mining decision. They grilled lawyers for citizens groups, the coal industry and the state Division of Environmental Protection (DEP) to rule whether citizens could go to federal court to try to limit mountaintop removal coal mining.

This three-judge panel consisted of some of the 10-judge circuit’s most conservative members, Niemeyer (a Reagan appointee), Luttig and Williams (appointed by Bush).

In October 1999, Haden ruled that a stream buffer zone rule prohibits coal operators from dumping waste rock and dirt into perennial and intermittent streams. He said that valley fill waste piles are only allowed in smaller, ephemeral streams.

In a July 1998 lawsuit, the WVHC and a group of other coalfield residents asked Haden to block coal companies from burying hundreds of miles of streams under huge valley fills.

Following the October 1999 ruling, the DEP, the coal industry, the U.S. Army Corps of Engineers, and the United Mine Workers appealed Haden’s decision to the 4th Circuit.

Basically, the appeals make three arguments:

1- The buffer zone does not apply to valley fills.

2 -Even if it does, coal operators can receive variances if they obtain separate "dredge-and-fill" permits under the Clean Water Act from the Corps.

3 - Regardless of what the buffer zone means, the federal court did not have jurisdiction in a dispute over how state regulators police mountaintop removal.

Normally, 4th Circuit rules allow each side in an appeal 20 minutes of oral argument. In this case, the court gave each side – those who appealed Haden’s decision and those who support it – 30 minutes.

In April, the U.S. Department of Justice took a middle-of-the-road stance in its initial brief filed with the appeals court.

Joe Lovett, who is a lawyer with the Charleston public interest firm Mountain State Justice, and Jim Hecker of the Washington group Trial Lawyers for Public Justice, argued for the citizens. Jared Goldstein, a Justice Department environmental lawyer, argued for the federal government.

As a key part of their appeal, lawyers for state regulators and coal operators say that the buffer zone rule is a state regulation. As such, they say, a lawsuit over it belongs in state court, not federal court. However, in his ruling under appeal, Judge Charles Haden concluded that the state strip mine rules were incorporated into federal law when the U.S. Office of Surface Mining gave states authority to police mining within their borders.

Niemeyer and Luttig peppered lawyers with questions, mostly about jurisdiction.

Williams said nothing during the hearing.

About 100 people packed the courtroom which included coal industry officials and lawyers, DEP Director Michael Castle, in-house DEP lawyer Russ Hunter and agency publicist Andy Gallagher. Several representatives of national environmental groups attended. State citizen group lawyers had advised their clients against a large turnout.

Jim Hecker, a citizen group lawyer with the firm Trial Lawyers for Public Justice, told the court that Congress clearly intended to allow citizens to sue state mining regulators in federal court.

When the federal strip mine law was debated in 1977, Hecker said, lawmakers twice rejected amendments that would have specifically blocked such suits. "That's the most concrete evidence we have," Hecker said.

Luttig and Niemeyer also questioned lawyers about coal industry allegations that Haden’s decision will shut down all mining in West Virginia. Neimeyer asked citizen group lawyer Joe Lovett, "You want to redefine how surface mining is done?" Lovett replied, "Surface mining has developed to the point that the coal companies simply stopped complying with provisions of the regulations. I believe this type of mining is completely legal, that includes filling valleys, as long as it is strictly limited to ephemeral streams, and those areas are quite large," said Lovett, a lawyer with the public interest firm Mountain State Justice.

Lovett said that operators could put more of the rock and dirt they remove back onto hilltops, instead of into streams. He said they could move valley fills farther up hillsides, into smaller ephemeral streams.

"Wouldn't that be an engineering feat of some proportion?" Luttig asked. Lovett said, "Many of them do it already. It just costs more money. [But] I don’t want to mislead the court. There may be some cases where mines couldn’t be as large."

Pate, the industry lawyer, emphasized to the court that he also represents the United Mine Workers union. Niemeyer joked, "I’ve never heard of an alliance like that before today." Pate said the industry-UMW team showed that, "This is a case of great importance to the coal industry in West Virginia and to the people who work for it." Pate went on to argue that valley fills do not really have an "adverse" effect on the streams they bury.

"It’s important to conclude that the word ‘adverse’ not be read – as the district court did – to require an extreme prohibition on any effects," said Pate, who works for the corporate firm Hunton & Williams.

Pate said, "You cannot read the prohibition on adverse effects to mean not a teacup, as the district court did."

Luttig asked Pate, "Is the thinking that if a valley fill is placed in a stream, the stream is diverted or rerouted?" Pate said, "That is certainly what takes place as a practical matter with respect to fills." Luttig then asked how a valley fill could be put into a stream and "not adversely affect the flow or gradient" of that stream. "The word ‘adverse’ has a significance factor as it’s been understood," Pate replied. Luttig said, "How could it not be significant? How could it not adversely affect the flow or gradient?"

The court may not rule until early next year. Haden's decision is temporarily suspended pending the appeal.