CHARLESTON, W.Va. - A federal judge on Friday blocked a U.S. Army Corps of Engineers permit for a Fola Coal Co. mountaintop removal mine along the Clay-Nicholas county line.

But U.S. District Judge Robert C. Chambers also suspended parts of his own preliminary injunction to allow Fola to continue producing coal until a full trial on the case can be held.

And in a 12-page opinion, Chambers suggested that additional actions by lawmakers or executive agencies are needed to resolve continuing debates over mountaintop removal.

"I am certain that most citizens in West Virginia recognize both the contribution of coal to our economy and the value of this state's tremendous natural resources," Chambers wrote. "These interests are not mutually exclusive, and achieving a balance which advances both is the goal of the statutes implicated in this action.

"With proper legislative or executive guidance, it may be possible to reach common ground in balancing these important values," the judge wrote.

Chambers added that he suspended parts of his injunction against Fola in the hope that "some degree of clarity" would be provided soon by the 4th U.S. Circuit Court of Appeals "or, perhaps, a separate branch of government."

At the 4th Circuit, a three-judge panel is considering an appeal of a March 2007 decision by Chambers that the Corps of Engineers did not properly consider the environmental impacts before issuing Clean Water Act permits for mountaintop removal mines to bury streams.

During a hearing last week, Chambers was asked to issue a new injunction to block Fola Coal's Ike Fork No. 1 and Ike Fork No. 2 surface mines. Fola, a CONSOL Energy subsidiary, wants to mine nearly 10 million tons of coal from a 900-acre area in Lilly Fork of Buffalo Creek, near the town of Gilboa. In the process, more than five miles of streams would be buried beneath 10 valley fills. Company officials proposed to offset this loss by restoring or creating nearly five miles of streams on a separate reclaimed mine site.

But Chambers found that environmental group lawyers "raised substantial questions" about whether the corps' approval of the Fola permit was "arbitrary and capricious" and whether the agency followed its own public notice requirements.

"As there is no evidence of successful stream creation, it is plausible that mitigation may never be completely successful," the judge wrote. "In other words, while damage to existing streams is certain, the mitigation of this damage is uncertain."

Chambers added, "While some may decry the loss of jobs for the sake of a handful of valleys and streams, there is a real and substantial public interest in maintaining the quality of natural resources.

CHARLESTON, W.Va. - A federal judge on Friday blocked a U.S. Army Corps of Engineers permit for a Fola Coal Co. mountaintop removal mine along the Clay-Nicholas county line.

But U.S. District Judge Robert C. Chambers also suspended parts of his own preliminary injunction to allow Fola to continue producing coal until a full trial on the case can be held.

And in a 12-page opinion, Chambers suggested that additional actions by lawmakers or executive agencies are needed to resolve continuing debates over mountaintop removal.

"I am certain that most citizens in West Virginia recognize both the contribution of coal to our economy and the value of this state's tremendous natural resources," Chambers wrote. "These interests are not mutually exclusive, and achieving a balance which advances both is the goal of the statutes implicated in this action.

"With proper legislative or executive guidance, it may be possible to reach common ground in balancing these important values," the judge wrote.

Chambers added that he suspended parts of his injunction against Fola in the hope that "some degree of clarity" would be provided soon by the 4th U.S. Circuit Court of Appeals "or, perhaps, a separate branch of government."

At the 4th Circuit, a three-judge panel is considering an appeal of a March 2007 decision by Chambers that the Corps of Engineers did not properly consider the environmental impacts before issuing Clean Water Act permits for mountaintop removal mines to bury streams.

During a hearing last week, Chambers was asked to issue a new injunction to block Fola Coal's Ike Fork No. 1 and Ike Fork No. 2 surface mines. Fola, a CONSOL Energy subsidiary, wants to mine nearly 10 million tons of coal from a 900-acre area in Lilly Fork of Buffalo Creek, near the town of Gilboa. In the process, more than five miles of streams would be buried beneath 10 valley fills. Company officials proposed to offset this loss by restoring or creating nearly five miles of streams on a separate reclaimed mine site.

But Chambers found that environmental group lawyers "raised substantial questions" about whether the corps' approval of the Fola permit was "arbitrary and capricious" and whether the agency followed its own public notice requirements.

"As there is no evidence of successful stream creation, it is plausible that mitigation may never be completely successful," the judge wrote. "In other words, while damage to existing streams is certain, the mitigation of this damage is uncertain."

Chambers added, "While some may decry the loss of jobs for the sake of a handful of valleys and streams, there is a real and substantial public interest in maintaining the quality of natural resources.

"Headwater streams such as those that may be buried pursuant to the Ike Fork permits play a key role in keeping watersheds healthy," the judge wrote. "These streams are an important part of the environment and should not be permanently destroyed if the activity fails to meet environmental standards.

"As this court is well aware, the streams and valleys of the Ike Fork permits are not the only ones which may be lost beneath valley fills," Chambers wrote.

Chambers concluded that if every valley fill proposal is not "evaluated and considered appropriately," the result may be "an environmental catastrophe, arrived at one small step at a time."

Fola officials had warned that they were running out of room to mine, and would have to shut down the operation if Chambers issued an injunction.

Gary Patterson, a company representative, testified that Fola employs about 350 surface miners and another 45 underground miners, all of whom depend on "the continued validity of the Ike Fork permits," the judge wrote.

Fola is the largest employer in Clay County, and accounts for 65 percent of the county's tax base, the judge noted, citing testimony from County Commissioner Jerry Linkinoggor.

"While environmental damage from the burial of streams is real and imminent, the relationship between Fola Coal and Clay County is unique," Chambers wrote. "Fola is the only mining operation in the county, and as such is the foundation of the economy."

But Chambers accepted a suggestion from environmental group lawyers that the judge suspend his injunction's application to two of the company's valley fills so Fola would be able to continue operating "well into 2009."

"The partial stay of this injunction alleviates most, if not all, of Fola's economic harm in the near term," Chambers wrote. "The court would expect to resolve the case on the merits and benefit from the guidance of the Fourth Circuit by the time the substantial economic harm would be felt by Fola."

Reach Ken Ward Jr. at kw...@wvgazette.com or 348-1702.