Credits due for this article: Ken Ward and the Charleston Gazette, Don Garvin, Doyle Coakley and Carolyn Johnson of the Citizen’s Coal Council, Vivian Stockman of the West Virginia Highlands Conservancy, Roger Featherstone of Defenders of Wildlife, Peter Shoenfeld, Nathan Anderson of the World Wildlife Fund, Laura Forman and Janet Fout of the Ohio Valley Environmental Coalition, Mark Whiteis-Helm of Friends of the Earth and Bob Gates.

It has been a wild several weeks. After a century of Big Coal dominance in the affairs of West Virginia, it looked briefly as of our beleaguered coal-impacted ecosystems had finally won one. The long awaited decision by Federal Judge Charles Haden was at hand, and lo!, in a move of courageous justice, he ruled in favor of our forests, mountains, communities and common folk, which is to say he moved to have the law properly enforced. He ruled that the 1977 Surface Mining and Control Reclamation Act (SMCRA) and the Clean Water Act be properly enforced. Coal and their continuous supply over the years of bought governors, bureaucrats and legislators were seemingly brought to heel.

The "environmental extremists" had had Big Coal worried for a change. Could it be that there were folks in West Virginia who dared to stand up and confront the coal companies’ illegalities in their operations in mountain top removal mining? So in a most unusual pattern Big Coal started to run scared. They have well paid management people who are constantly scanning the horizon for the clouds of possible trouble. When any such clouds are sighted, in this case a lawsuit brought by the WVHC and a few coal field citizens, wham!, their propaganda machine comes out. A dedicated few citizens and organizations actually dared to require them to mine coal as the law requires. Among other things, full page ads were run in the West Virginia’s newspapers extolling coal’s virtues to the state’s citizenry. The middle managers were put to use in promoting the party line of coal – more extreme measures were used at times as an attempt to intimidate those opposing them – and often they used coal mine employees as pawns to do their dirty work for them. They did all these things knowing full well that if all failed and they were forced to stop their illegal operations they had a big trump card in Washington – an administration that has offered huge corporations largesse worthy of the most extreme pro business Republican administration ... and the West Virginia congressional delegation.

So after Judge Haden’s decision, Plan B went into effect. Crank up the actions of officialdom’s coal forces (who happen to be in the office of governor and his administration) to blanket the media with misinformation about what the ruling means in terms of jobs, tax revenues, and the overall West Virginia economy to create an atmosphere of out-and-out hysteria. The Big Guns of Big Coal in Washington, DC -- the US Office of Surface Mining and the West Virginia congressional delegation were pressured into immediate service to undo Haden’s courageous act. Kathy Karpan, head of the US office, threatened to change the rules to "make harmless" Haden’s ruling to Big Coal (It is not clear how she would be able to adjust the rules to circumvent the law). And our elected representatives, all nominally Democrats, presented a united front for Big Coal as per the usual. They proposed a rider to attach to one of the current appropriation bills. Their response would have made any ultra conservative anti-environmental Republican proud.

In light of all this, to quell the calculated "insanity" brewing and bubbling throughout the corporate, bureaucratic and political structure, Judge Haden moved to stay his decision to be later acted upon by the Appeals Court.

October 20, 1999 – Chief U.S. District Judge Charles H. Haden II in a landmark ruling said that valley fill waste piles are not allowed in streams that flow year-round or part of the year. Fills are legal only in smaller streams that flow when it rains or when snow melts, the judge said.

Judge Haden concluded that valley fills in perennial and intermittent streams violate federal and state mining rules and the federal Clean Water Act. Perennial streams flow all year. Intermittent streams flow at least six months of the year.

Excerpts from Judge Haden’s 49-page ruling:

"When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments. The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. ...If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated ... No effect on related environmental values is more adverse than obliteration. ..Under a valley fill, the water quality of the stream becomes zero. Because there is no stream, there is no water quality."

Judge Haden ordered the West Virginia Division of Environmental Protection (DEP) not to issue any more permits that allow valley fills in perennial and intermittent streams. He spoke to one key issue only in a complicated federal court lawsuit over mountaintop removal: Whether valley fills violate a rule which bans strip mining within 100 feet of streams.

More than 470 miles of West Virginia streams have been buried, or proposed to be buried, in permits issued since 1986, according to an October 1998 report by the U.S. Fish and Wildlife Service.

"Nothing in the statute, the federal or state buffer zone regulations ... suggests that portions of existing streams may be destroyed so long as [some portion of] the stream is saved," Haden wrote.

October 21 – Kathy Karpan, US Office of Surface Mines (OSM) Director, threatened to revoke their stream buffer rule to allow coal operators to dump mountaintop removal waste into streams.

"Obviously, we are going to have to reconsider it," Karpan said in an interview. "We have a situation where the industry is going to come to a virtual halt that is disrupting the lives of hundreds and hundreds of West Virginians."

All five members of West Virginia’s congressional delegation issued a joint statement disagreeing with a federal court ruling that the buffer zone outlaws valley fills in most streams.

"In our view, the court’s decision in this case does not comport with the intent of Congress in passing these statutes," the statement said and urged federal agencies, including the Department of Interior, which oversees OSM, to intervene in an appeal of Judge Haden’s ruling.

It also said the congressional delegation would consider legislation to overturn the decision.

"Coal mining is a matter of striking a balance between environmental conservation and the nation’s economic and energy needs," the statement said. "The evolution of surface mining into the practice known as mountaintop removal has further complicated the effort to strike such a balance," it said. Continuing, "Nonetheless, we believe that the intent of [SMCRA] was to allow well-regulated surface mining operations that would ensure a sufficient supply of coal to fuel American industries and provide affordable heating and lighting for the homes of millions of American families, while also protecting our precious natural resources."

The judge’s ruling was harshly criticized by top state elected officials, labor leaders and coal industry executives and lobbyists.

"I do not believe the Founding Fathers of this nation intended to allow our court system and government in general to sentence a legal industry authorized by Congress, the people who work in it and the economy of an entire state to a legal purgatory," Gov. Cecil Underwood said during a morning news conference.

DEP Director Michael Castle issued a one-page order to agency inspectors and coal companies that stated no new strip mining permits would be issued which allow fills in intermittent or perennial streams.

Cecil Roberts, United Mine Workers of America (UMWA) head, issued a one-paragraph statement that said he was "... deeply

disappointed by Judge Haden’s ruling. The negative economic implications of this ruling to every West Virginian working in the state’s coal industry today are really troublesome to say the

least," Roberts said. Roberts said that UMWA lawyers will join DEP’s efforts to appeal the Haden ruling to the 4th U.S. Circuit Court of Appeals.

Steven F. Leer, president of Arch Coal Inc., said, "We are extremely disappointed in this decision. We are in the process of evaluating the decision and its potential long-term adverse effect on our operations if it is not set aside or if the buffer zone is not resolved legislatively."

In their statement, the congressional delegation said, "We are aggressively examining possibilities for a balanced legislative remedy that would satisfy the concern of both the environment and the West Virginia mining industry, while protecting the livelihoods of the men and women who depend on that industry."

Cindy Rank, mining chairwoman of the Highlands Conservancy, said she always

expected politicians to try to overturn the ruling if her group won the federal court case. "An appeal was always expected," Rank said. "Whether or not you’re going to legislate and get some regulations put through, that’s another whole, big challenge. I certainly hope they don’t change the law. The law was put there so mining could occur and the environment could be protected. There can

still be mining. It just can’t be as big."

October 22 – Governor Underwood orders a state hiring and spending freeze.

October 26 -- Doyle Coakley, West Virginia coal mine activist, clarified the impact of Federal District Judge Charles Haden’s decision. Coakley represents West Virginia on the Board of Directors for the Citizens Coal Council, a national federation of 52 grassroots groups in 22 states and the Navajo Nation.

Doyle Coakley said, "Since Judge Haden announced his decision on October 20, Governor Underwood and the coal industry have been desperately trying to convince people that the decision shuts down existing coal mines and thousands of highway and building projects across the country. These scare tactics are enough to remind folks of what it was like when child labor was eliminated and the minimum wage was introduced...it's shameful."

Coakley continued, "Anyone can read that the judge did not shut down any existing coal mines anywhere. He did not even address coal mines in other states outside West Virginia. And the judge said his decision has no effect on construction projects. The judge did say that the state and federal government agencies must start enforcing the laws they have ignored for 20 years."

Judge Haden upheld the federal regulations for SMCRA that ban coal mining operations within 100 feet of some types of streams unless the operations will not damage water quality and quantity and other environmental resources of the stream. OSM wrote these regulations in 1979, but neither the federal agency nor DEP has enforced them in West Virginia.

Meanwhile, members of the West Virginia congressional delegation were drafting a legislative rider that would overturn Judge Haden’s decision, and that would allow the coal operators to continue to dump millions of toms of rock into West Virginia streams.

October 27 – The Citizen’s Coal Council puts out a press release that states that environmentalists oppose special favors for coal strip mines in West Virginia. They oppose the attempts by members of the West Virginia congressional delegation to write a legislative "rider" overturning the court decision that requires state and federal agencies to enforce the Clean Water Act and coal mining laws in West Virginia.

"These clean water and coal mining laws and regulations have been on the books for over 20 years but have not been enforced at West Virginia strip mines," said Cindy Rank, a West Virginia member of the Citizens Coal Council and a plaintiff in the case. "The coal strip mines have illegally dumped hundreds of millions of tons of mine waste, destroying over 1,000 miles of our mountain streams. West Virginia citizens were fed up and went to court to get the law enforced. The judge agreed and said no more waste dumping."

Federal District Judge Charles Haden is holding a hearing today on other issues in the case.

Carolyn Johnson, Staff Director of the Citizens Coal Council, said, "People from all over the country worked with Congress to enact these protections and I have seen them enforced for years in other big coal-producing states like Colorado, New Mexico and Wyoming. It’s time for the coal companies in West Virginia to stop getting a special break."

Rosemary Vidovich, a coal miner’s widow who lives in Logan County, the heart of the West Virginia coal fields, said, "People are being held

hostage in Logan County by the corrupt politics. We voted Congressman Nick Rahall in and now he thinks he represents only the big coal companies." Vidovich is a member of the West Virginia grassroots group, the Ohio Valley

Environmental Council.

October 28 – West Virginia Secretary of State Ken Hechler and representatives of citizens groups and citizens on their own behalf hold a press conference at Kayford Mountain Cemetery, site of the Stanley Heirs Establishment, and a site surrounded by mountain top removal devastation. The purpose of this press conference was to counter some of the media hysteria which had been promulgated and to:.

Clarify Judge Haden’s ruling.

Expose the scare tactics employed by the coal industry, regulators, Governor Underwood and the congressional delegation as they attempt to garner support for gutting environmental laws.

Discuss the meaning of the ruling for West Virginians and West Virginia’s environment.

Blast West Virginia’s congressional delegation for promoting government by stealth through the use of riders attached to non-related appropriations bills.

Examine the language of the rider that would overturn Haden’s rulings and national law.

Also attendees had a chance to see first hand the devastation from the Mountaintop removal operations from Kayford Mountain.

Greenlines, a project of Defenders of Wildlife, puts out a national directive on the issue.

Excerpts from Roger Featherstone, GREEN Director are as follows:

The mining industry immediately responded [to Judge Haden’s ruling] by claiming following the law would be too costly and by threatening to terminate thousands of jobs

if the law is not changed. West Virginia’s Governor and congressional delegation have dutifully responded to this blatant threat by trying to stay the court decision and by crafting a rider which according to the Charleston Gazette, could be attached to federal legislation "as early as this week." The rider would once again overturn important legislation protecting the environment from mining abuse.

We cannot allow some members of Congress to overturn the minimal environmental protections afforded by current law simply because the mining industry finds them too costly. The whole rider process has made our most important environmental laws expendable and made a mockery of the legislative process. It has to end now, or these laws will not be worth the paper they are written on.

The new mining rider would effectively nullify the key provisions of SMCRA and the Clean Water Act, the very laws that the federal court found the mining permits in violation of. Senator Byrd will apparently try to attach this rider to legislation that comes to the Senate floor,

possibly a revised Commerce, Justice, State appropriations bill that the President vetoed earlier this week. Attempts to attach this rider must be vigorously fought in both the Senate and House. Should the rider reach the President it will be up to him to veto it.

Featherstone provided the following talking points from the Citizens Coal Council.

1) This new rider would amend section 404 of the Clean Water Act and make it possible for the DEP to allow companies to continue filling streams with mine waste; it would also negate OSM’s buffer zone rule. As a result, the buffer zone rule SMCRA would not have to be upheld. The 404 provisions are weaker than the SMCRA language, which does not allow any mine operations within 100 feet of a perennial or intermittent stream. Allowing this rider to succeed will set a terribly bad precedent for all coal and hardrock mining states. The Fish and Wildlife didn't sign off on the August memorandum of understanding (MOU) because it did not comply with SMCRA. The Judge’s decision upheld both the existing 404 regulations

that do not allow waste to be discharged into streams and OSM’s buffer zone rule; he said they must be enforced in West Virginia on new

permits (see #2 below) despite the 20-year practice of not enforcing them; he confirmed that the August MOU was contrary to the law.

[Please note: there are two MOUs. The April 7 MOU said that dumping mine waste into streams that have a watershed of less than 250 acres has an insignificant environmental effect. For watersheds of 250 acres or more, existing mine permits must obtain an individual 404 permit.

It sets out a process for the agencies signing the MOU to coordinate their review of the mine permit and 404 permit.]

2) The Judge's ruling was "prospective" and applied only to new mine permits. It did not apply to existing active mines.

3) It is inappropriate for Congress to give West Virginia coal companies an unfair competitive advantage over coal mines in the other 21 coal mining states that are complying with the law.

4) This rider may create an extremely dangerous situation for West Virginia citizens. In 1972, 125 people (more than half being children)

died at Buffalo Creek in West Virginia. They died because Pittston Coal dumped waste into a slurry pond in a stream at the top of a hollow. Those folks died because the laws protecting citizens were not being enforced by regulators. The pond broke and rushed through the hollow destroying everything in its path. You would never have

recognized it afterward. Pittston Coal said it was "an Act of God" and a special committee to investigate it was established by Congress...they found the company and others in the state at fault. This disaster was a major impetus for passing SMCRA.

5) The plaintiffs in the case are still negotiating on other issues such as definitions pertaining to approximate original contour, bonding and post mining land use. They have been willing to compromise and remain open. However, they believe that it is completely inappropriate to address this issue via a rider rather than what should have been a rulemaking process. The judge ruled that the federal law should be upheld even though it hasn’t been enforced for twenty years. We say that it is time folks wise up and enforce the law protecting citizens and the environment. The rider totally sets aside a court decision that the Army Corps of Engineers and EPA have not upheld. It amends the Clean Water Act and says that West Virginia coal mines don't have to comply with much of 404. The rider says that they can continue filling streams with mine waste and for that reason it amends 404 of the Clean Water Act.

{Note: Roger Featherstone can be reached at: PO Box 40046, Albuquerque, NM 87196-0046, (505) 255-5966 x102 fax, (505) 255-5953, rfeather@albq.defenders.org, http://www.defenders.org/grnhome.html }

October 29 – The Citizen Coal Council obtains a version of the proposed rider which reads as follows:

(a) The April 7, 1999 Memorandum of Understanding among the U.S. Department

of the Interior’s Office of Surface Mining and Fish & Wildlife Service, the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, and the West Virginia Division of Environmental Protection, shall govern Federal

Water Pollution Control Act permit applications and permit decisions for discharges of excess spoil and underground development waste into waters of the United States from surface coal mining and reclamation operations in West Virginia. In rendering permit decisions for such discharges, the permitting authority shall apply section 404 of the Federal Water Pollution Control Act

(33 U.S.C 1344) and the section 404(b)(1) guidelines pursuant to section 404(b)(1) of the Federal Water Pollution Control Act (33 U.S.C. 1344(b)(1) and implementing regulations set forth at 40 C.F.R. Part 230 (as in effect on October 20, 1999).

(b) Consistent with the Memorandum of Understanding of August 9, 1999, among

the U.S. Department of the Interior's Office of Surface Mining, the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, and the West Virginia Division of Environmental Protection, permitted disposal of

such spoil or waste meeting the requirements of the section 404(b)(1) guidelines referenced in subsection (a) shall be deemed as satisfying the

criteria for granting a variance from under regulations set forth at 30 C.F.R. sections 816.57 and 817.57, and W.Va Code St. R title 38 section 2-52.

(C) State or federal water quality standards shall not apply to those portions of waters filled by discharges permitted pursuant to the procedures set forth in subsections (a) and (b) above [bold and italics added by Editor]. All applicable state and federal water quality standards shall apply to all portions of waters other than those filled pursuant to the permitting procedures set forth in subsections (a)and (b).

(d) This section shall be in effect until eighteen months from the date of enactment of these provisions.

Judge Haden suspends his ruling stating that "egregious misrepresentations" of the ruling had created "a shrill atmosphere " in which reasoned decisions about the issue could not be made.

The judge said lawyers for the Underwood administration and the coal industry did not meet the legal tests for him to stay his ruling. But, Haden wrote, "the Court believes a stay best serves the interests of justice under these circumstances. The Court believes it preferable to attempt to defuse invective and diminish irrational fears so that reasoned decisions can be made with all deliberate speed, but with distractions minimized."

The stay suspends Haden’s ruling, which banned valley fills in some streams, until an appeal to the 4th U.S. Circuit Court of Appeals is decided. Haden criticized DEP lawyers Ben Bailey and Brian Glasser for submitting on Thursday a second argument on behalf of their motion for a stay. Haden called the brief "uninvited and in disregard of the briefing order." The judge said that Bailey and Glasser's "late offerings give the Court no basis upon which to conclude the Court of Appeals will reach a contrary result. Their assertions on the remaining factors present the Court with an insufficient basis upon which to determine whether they have satisfied their heavy burden." He continued "In sum, the present record on the four factors militates in favor of denying a stay ...as the Supreme Court noted ... the traditional stay factors contemplate individualized judgments in each case, [and] the formula cannot be reduced to a set of rigid rules."

"Mindful of this practical admonition, and the Supreme Court's overarching concern for substance over form, the Court believes a stay best serves the interests of justice under these circumstances," he wrote.

Haden said that since his Oct. 20 order was issued, "A firestorm of reaction has come forth from Defendants and state government officials, predicting that the court’s injunction will cause unprecedented economic and social dislocation throughout West Virginia. In short, the Court believes it preferable to attempt to defuse invective and diminish irrational fears so that reasoned decisions can be made with all deliberate speed, but with distractions minimized," he wrote. "Accordingly, and of its own volition and discretion, the Court GRANTS Defendants’ motion to stay the permanent injunction pending appellate action."

October 30 – The Washington Post reports that the Clinton administration backs the rider which would allow the dumping of waste into streams in mining practice as a favor to Senator Byrd, complicating and compromising this Administration’s stance on anti-environmental riders. Ambivalence was reflected after Haden’s stay in a White House official stating "We are evaluating whether there is any need for legislative language at all."

Strange bedfellows – Support for the rider comes from anti-environmental extremists such as Republican Representatives Don Young (AK) and Barbara Cubin (WY) who wish it to apply to the lands they represent. Dick Armey says "What’s right for Bobby Byrd is right for the western members as well."

The White House then flip flopped with spokesperson Joe Lockhart saying that Haden’s stay made the need for legislation moot.

The World Wildlife Fund (WWF) issues a statement through its spokesperson Nathan Anderson. Excerpts are as follows:

We urgently need your help to prevent a few members of Congress from using last-minute legislative maneuvering to undo long-standing protections against the ravages of strip-mining in Appalachia. ... the West Virginia congressional delegation plan to introduce legislation to overturn [Judge Haden’s] decision. They are threatening to attach their proposal to a spending bill, thereby circumventing the normal legislative process.

Mountaintop removals are occurring in West Virginia and other southern states within an ecoregion that WWF has identified as globally outstanding. The region’s freshwater communities are the richest temperate freshwater ecosystems in the world. Many species of songbirds, salamanders, trees, ferns, and fungi can be found there.

November 3 – A busload of environmental activists on a bus trip organized by the Ohio Valley Environmental Coalition (OVEC) leave for Washington, DC, to denounce politicalposturing over Haden’s ruling and to oppose legislation that could overturn a federal court ruling limiting valley fills in mountaintop removal strip mining in West Virginia. National groups such as the Citizens Coal Council, Friends of the Earth, United States Public Interest Research Group, and the World Wildlife Fund lend support and will join them in a demonstration at noon in McPherson Square.

"King Coal and its minions in political office continue to hold West Virginians hostage," said Laura Forman, an organizer with OVEC. "Finally, after 20 years of scofflaw behavior and environmental destruction, coal companies have been ordered to stop breaking the law. But, in an amazing display of demagoguery, our so-called leaders are spreading fear and fomenting hatred while kowtowing to a dying industry," Forman said. "The governor and the entire West Virginia congressional delegation are moving to gut the laws that protect people and the environment. They fail to offer us any leadership into the post-coal economy, that is coming our way, whether they like it or not," Forman said. "Judge Haden’s decision gave us a brief glimpse into West Virginia’s future if we fail to address an economy without coal now."

"Our Congressional leaders, in knee jerk fashion to a federal judge’s ruling, are willing to gut the Clean Water Act," said Rick Eades, a hydrogeologist with West Virginia Citizens Action Group. "In effect, they are saying to King Coal, if you don’t want to obey a law, just give us a call. With the proposed rider, King Coal would be given freedoms to destroy West Virginia streams to degrees beyond their wildest dreams."

November 4 -- The rally has been moved to the US Capitol itself. Carol Jackson’s famous artistic expression of the "Graveyard of WV streams" has been set up on the grassy area on the Senate side.

Senator John D. Rockefeller, IV, says that the rider will definitely be attached to some [totally unrelated] legislation.