(Adapted from an article in the March 4 Charleston Gazette by Ken Ward Jr.)

In July 1998, the West Virginia Highlands Conservancy and a group of coalfield residents filed a massive lawsuit that seeks to curb mountaintop removal. The suit alleged that Dana Robertson, chief of the U.S. Army Corps of Engineers, and Michael Miano, director of the state Division of Environmental Protection, had established a "pattern and practice" of issuing mountaintop removal permits that violate the federal Clean Water Act and the 1977 Surface Mining Control and Reclamation act.

The suit prompted the U.S. Environmental Protection Agency and other federal regulators to agree to subject new mountaintop removal permits to additional scrutiny. Under the settlement, federal officials would conduct a two-year environmental impact study intended to suggest new rules to govern mountaintop removal. In the interim, most mountaintop removal mines would have to seek more detailed individual permits from the Corps, rather than be authorized under the less stringent, "nationwide permit" the agency has used for years.

EPA Region III Administrator Michael McCabe exempted the Hobet Pigeonroost operation, called the Spruce No. 1 Mine, from that agreement. It would be permitted without the additional scrutiny. As part of the EPA deal, Hobet agreed to reduce the amount of streams it would bury under valley fills by 40 percent.

This December agreement between the Environmental Protection Agency being sued by the West Virginia Highland Conservancy and 10 coalfield residents resolved only three of fifteen claims in the lawsuit brought earlier. One of the most glaring exceptions to the agreement was the lack of resolution concerning the Spruce Fork permit which was held out for no logical reason from the rest of that agreement. One can only speculate that EPA was bowing to economic and political considerations on that score. At any rate, for the time being, at least until the whole lawsuit comes to the docket in about six months, Arch Coal may be denied the opportunity to dig up the proposed largest strip mine job ever sought in West Virginia.

On March 3, Chief U.S. District Judge Charles Haden granted a preliminary injunction that could temporarily block this largest mountaintop removal mine. Judge Haden ordered state and federal regulators to withhold permits for the 3,100-acre Arch Coal Inc. permit near Blair, Logan County. He also ordered Arch Coal subsidiary Hobet Mining not to start any pre-construction or mining activities until the court resolves a complicated case over mountaintop removal permitting sometime later this year.

In a 47-page order, Haden cited permanent damage to streams, forests and wildlife around Pigeonroost Hollow if the mine were allowed to go forward.

"If the forest canopy of Pigeonroost Hollow is leveled, exposing the stream to extreme temperatures, and aquatic life is destroyed, these harms cannot be undone," Haden wrote.

"If the forest wildlife are driven away by the blasting, the noise, and the lack of safe nesting and eating areas, they cannot be coaxed back," he wrote.

"If the mountaintop is removed, even Hobet’s engineers will affirm that it cannot be reclaimed to its exact original contour. "Destruction of the unique topography of Southern West Virginia, and of Pigeonroost Hollow in particular, cannot be regarded as anything but permanent and irreversible."

In his ruling, Haden did not downplay the potential economic harm to Hobet and its employees. The company has already laid off 13 workers, and has threatened more lost jobs, citing delays in receiving a permit to expand its Dal-Tex mining complex.

"Hobet has made a significant investment in the Spruce Fork mine, considering the cost of the operation itself, the cost of purchasing homes around the proposed mine, and preparing permit applications," Haden wrote. However, he ruled that, when it wrote federal mining laws, "Congress recognized the need to ensure the balance is maintained among protecting the environment, protecting the citizenry and coal industry. Nonetheless, against a backdrop of prior mining with little environmental regulation, it is clear the laws primary protections extend to the citizenry and the environment."

Mountaintop removal blasts off entire hilltops. Huge earth-moving machines dig out valuable, low-sulfur coal reserves. Leftover rock and earth is dumped into valleys, burying streams under waste piles called valley fills. In his order, the judge wrote that, "The Court’s helicopter flyover of all mountaintop removal sites in Southern West Virginia revealed the extent and permanence of environmental degradation this type of mining produces.

"On February 26, the ground was covered with light snow, and mined sites were visible from miles away," Haden observed. "The sites stood out among the natural wooded ridges as huge white plateaus, and the valley fills appeared as massive, artificially landscaped stair steps. "Some mine sites were 20 years old, yet tree growth was stunted or nonexistent," he wrote. "Compared to the thick hardwoods of surrounding undisturbed hills, the mine sites appeared stark and barren and enormously different from the original topography."

In his ruling, Haden agreed with environmental groups lawyer James Hecker, who argued that the company reduced the size of the operation only to avoid an extensive study required by the National Environmental Policy Act. Hobet officials, Haden noted, acknowledged in court that the current permit application is merely the "first phase" of the company’s plans for Pigeonroost Hollow. "It seems apparent the operations were split intentionally to allow the commencement of mining operations under a less critical agency review and to delay more detailed scrutiny until after significant work has begun," Haden wrote.

Haden specifically discussed only one other issue in the permit dispute: the question of whether the DEP Office of Mining and Reclamation improperly allowed Hobet to receive a permit without an approximate original contour variance. DEP authorized the mine as one that meets the approximate original contour, or AOC, reclamation standard. However, the judge wrote that, under the Hobet permit, "current plans for regrading will leave five level or gently rolling areas, in stark contrast to the current topography."

Haden wrote that environmentalists "have raised substantial, serious questions going to the merits of whether Defendant Miano himself has breached mandatory, nondiscretionary duties in his application of the AOC requirement."

A trial in the case is scheduled for early September. Currently, the preliminary injunction will stand until the trial and a decision.

Before then, Hobet Mining lawyers could appeal the preliminary injunction ruling to the 4th U.S. Circuit Court of Appeals in Richmond. Both sides could file requests for summary judgment on any of the issues in the case.

James Snyder, a Jackson & Kelly lawyer representing Hobet, said he had not seen the ruling and therefore could not comment.

James Weekley, who lives in Pigeonroost Hollow and is a plaintiff in the case against the mine, said he was pleased by the judge’s decision. "I’m very happy," Weekley said. "Now we can look forward for the future of West Virginia. That's what this is about. It's not about money. It’s about the future of West Virginia."