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Industry wants judge to tour mountaintop removal mining site

Coal companies want a federal judge to tour a mountaintop removal strip mine before he rules on a lawsuit that contends the huge operations violate environmental laws.

Lawyers for three Arch Coal Inc. subsidiaries asked Chief U.S. District Judge Charles H. Haden II to schedule a trip to one of their mines, court records show.

Roger Wolfe, a Jackson & Kelly lawyer who represents the companies, told Haden that "a viewing by the Court of such operations at various stages of development should be especially useful to the Court's assessment of the issues in this case."

In mid-July, the West Virginia Highlands Conservancy and 10 coalfield residents filed a lawsuit that seeks to reign in mountaintop removal mining.

The suit alleges, among other things, that mine valley fills have been permitted to dump waste in streams in violation of the federal Clean Water Act. The suit also says mountaintop removal mines have been permitted without the required post-mining development plans for flattened land.

Named as defendants in the suit are Michael Miano, director of the state Division of Environmental Protection, and the U.S. Army Corps of Engineers.

Haden allowed Arch Coal subsidiaries Hobet Mining Inc., Catenary Coal Co. and Mingo-Logan Coal Co., as well as the West Virginia Coal Association and the West Virginia Mining and Reclamation Association to intervene in the case.

In a motion filed Monday, Wolfe noted that the lawsuit says that a 3,100-acre mine Hobet Mining proposes near Blair in Logan County "would produce an ugly landscape," which would diminish property values and the quality of life.

"Plaintiffs have alleged that the operations of Arch Coal, particularly the use of valley fills, have destroyed significant portions of West Virginia's forests, streams and mountains," Wolfe wrote.

"Plaintiffs have alleged that as a result of mountaintop mining practices, they have suffered adverse impact, including loss of community, diminished value of property, degradation of water and air quality, and significant reductions of the quantity and variety of wildlife, diminishing hunting, fishing, nature observation and other recreational opportunities, among other things," he wrote.

In an accompanying memorandum, Wolfe argued that "maps, photographs, videotapes, by themselves, would not be as effective in informing the Court as to the nature of mountaintop mining operations as coupling such evidence with a viewing.

"Such concepts as valley fills and reclamation to approximate original contour can best be considered only in the context of the environment in which they exist," he wrote.

In his court filings, Wolfe cites a case in which a federal judge in Oregon toured a timber sale site during a lawsuit against the U.S. Forest Service over the logging deal.

In that case, Wolfe wrote, "News gatherers would be allowed to accompany the court and counsel during the view itself" but would not be allowed to interview the judge or lawyers during the tour.

"My expectation was that the view would be just that - a view, and not a testimony-taking session," the judge wrote in the Oregon case Wolfe cited.

"I wanted to have representatives of the Forest Service point out to me, at my request, geographic and physical features so that I could orient myself in light of the maps and other items of evidence received in the earlier court sessions," the judge wrote.

"I did not wish to be distracted; nor did I wish counsel to be distracted."

To contact staff writer Ken Ward Jr., call 348-1702.


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