Haden’s Ruling Overturned!

Fourth US Circuit Court of Appeals Claims the State Can’t Be Sued in Federal Court

(This article is excerpted from the articles of Ken Ward, Jr. and a column by Dan Radmacher in recent issues of the Charleston Gazette)

The long-awaited decision from the 4th US Circuit Court of Appeals arrived on April 24th. The October 1999 ruling of US District Judge, Charles H Haden II was overturned.

The plaintiffs, the West Virginia Highlands Conservancy (WVHC) and some coal field residents, were overjoyed at the October 99 ruling as perhaps heralding a change from the strangle-hold that King Coal has held over the state of WV. They hoped that now there was a possibly ending a century of wanton exploitation and destruction of people and communities, of mountains, streams and the poisoning of groundwater.

About a week after his ruling, Haden suspended an injunction that would have blocked the West Virginia Division of Environmental Protection (DEP) from issuing any new mining permits with valley fills in perennial and intermittent streams. While Judge Haden’s ruling was stayed pending the outcome of the appeal, the pace of destruction continued unabated. Since then, coal companies have continued to receive new permits that included large valley fills, according to DEP records. West Virginia coal production has also remained steady. The US Department of Energy (DOE) reported that West Virginia produced 158 million tons of coal during the 12 months that ended April 21. That’s an increase of 2 percent over the previous 12 months, according to DOE figures.

In spite of the belief of the plaintiffs that a provision of the Surface Mining Control and Reclamation Act (SMCRA) was being violated, the three panel US Circuit Court of Appeals judges claimed that the state couldn’t be sued in federal court. Judge Paul V. Niemeyer writing for the court said that the state’s sovereign immunity – protected by the 11th Amendment of the US Constitution – barred Haden from hearing the case. Niemeyer was joined by Judges J. Michael Luttig and Karen J. Williams. The three are considered the most conservative judges on the 4th Circuit, which is among the most conservative appeals courts in the country.

The main issue – whether Haden was correct to use a stream buffer zone to limit the size of mountaintop removal’s valley fills -- was not resolved. The 4th Circuit sent the case back to Haden, and instructed him to dismiss it so it could be filed in state court instead.

Lawyers for the WVHC and citizens alleged that the (DEP) and the US Army Corps of Engineers had been operating illegally in approving dozens of mountaintop removal permits. They said that the permits did not require companies to protect streams and properly reclaim mined land. Most of the claims in the suit were settled. But lawyers could not resolve a dispute over a rule that requires 100-foot buffer zones between mining activities and streams. Citizen group lawyers argued that the buffer zone rule outlawed valley fills in perennial and intermittent streams. Perennial streams flow all year. Intermittent streams flow part of the year. Citizen lawyers said that the buffer zone rule allowed fills only in smaller, ephemeral streams, which flow only when it rains.

In this ruling the panel interjected some ambiguity by effectively overturning -- with no explanation -- the 4th Circuit's own opinion in a 1997 case called Molinary vs. Powell. In that case, a three-judge panel ruled that state rules that comprise a federally approved strip mine regulatory program are "issued pursuant" to federal law. Under that ruling citizens could take lawsuits over lax strip mine enforcement to federal court. But this time the panel said that state mining rules aren’t federal law after all. Niemeyer was on that panel that decided the Molinary case.

The panel agreed that there was a steep environmental impact. "The disruption to the immediate environment created by mountaintop mining is considerable and has provoked sharp differences of opinion between environmentalists and industry players," the panel's opinion said.

In its own rules, the 4th Circuit says that only the full court – not a three-judge panel – may overturn a previous panel decision. Only the full court, in a proceeding called an en banc rehearing, can overturn a previous panel decision. (En banc is a French term, and means "on the bench," or in full court.)

In the wake of the 4th Circuit ruling, lawyers for the WVHC are debating amongst themselves whether to ask for an en banc rehearing or try to go directly to the US Supreme Court. Jim Hecker, a lawyer with the Washington, D.C., group Trial Lawyers for Public Justice, said that some sort of appeal will be filed. Hecker noted that, in 1977, Congress rejected two amendments that would have specifically outlawed citizen suits in federal court against state regulators. And from our politicians -- Sen. Robert C. Byrd and Rep. Nick J. Rahall said Wednesday that they were pleased that a federal court ruling to limit mountaintop removal was overturned.

But both West Virginia Democrats said they had hoped the case would be decided on its substance – instead of on a technicality about court jurisdiction.

Gov. Bob Wise offered a vigorous defense of mountaintop removal coal mining and praised the rejection of federal court-ordered limits on valley fill size. At one point in 1998, Wise called for a moratorium on new mountaintop removal permits. At the time, he said the state’s permit reviews were so lax that no new mines should be authorized until reforms were made. But since then, Wise has become a strong supporter of what the governor calls "responsible mountaintop mining." United Mine Workers President Cecil Roberts said that he hopes an appeals court ruling on mountaintop removal will help put 400 laid-off miners in Logan County back to work.

"It is also the UMWA’s strong hope that a comprehensive resolution will be forthcoming with regard to the practice of mountaintop mining in West Virginia – and that it can be achieved in a constructive – not a contentious manner," Roberts said. "UMWA members have always been willing to mine the coal. It is up to the industry, the state and the people of West Virginia to decide what law will dictate how they mine it."

Coal industry officials had attacked Haden’s ruling, saying it would put these jobs at risk. Industry lobbyists and former Gov. Cecil Underwood had argued that the ruling would end all coal mining in West Virginia. In court documents, they provided little proof of this claim.

Bill Raney, president of the West Virginia Coal Association, said he thought the ruling would give state regulators more confidence that they’ve been doing things the right way. However, this decision does not say that state regulators have been doing things the right way. It did not rule on any of the legal decisions Haden made in his ruling, except for whether he had jurisdiction to decide the issue. The three-judge panel ignored the plain wording of the 11th Amendment to the Constitution and the plain wording of the federal Surface Mining Control and Reclamation Act to decide that Haden did not have jurisdiction.

The ruling leaves the real issue unanswered: Has the state of West Virginia illegally allowed coal companies to bury hundreds of miles of streams with dirt and rubble from mountaintop removal mining operations?

Federal regulators have abdicated their responsibility to force the state to follow the law.

Citizens chose the one recourse they had left: federal court. Now the 4th Circuit is telling them that avenue is also shut off to them.

Statewide, coal companies have proposed new valley fills that would bury more than 100 more miles of streams, according to permit applications on file with the DEP. That’s on top of the more than 775 miles of streams already approved to be filled with waste rock and dirt from strip mines. Should these fills be allowed? Does a strip-mine stream buffer zone prohibit them? Should coal companies be permitted to bury hundreds of miles of creeks and streams across the Southern West Virginia coalfields?

Coal industry officials and the state government still contend that valley fills are perfectly legal.

"Nothing has changed about our belief that the law says that you can’t do these big fills in perennial and intermittent streams," said Cindy Rank, the WVHC’s mining chairwoman. "But the political pressure to permit these big fills is going to be huge.

"We need DEP to have a backbone that heretofore it has not had, and we need our new governor to show the wisdom to limit the size of these fills."