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Land firms want say in mountaintop removal suit

Big land holding companies want their say in a federal court lawsuit that seeks to curb mountaintop removal strip mining, court records showed Friday.

Western Pocahontas Properties Limited Partnership and the National Council of Coal Lessors Inc. filed a motion to intervene in the suit being heard by Chief U.S. District Judge Charles H. Haden II.

Robert D. Pollitt, a lawyer with the firm Steptoe & Johnson, filed the motion Friday morning on behalf of Western Pocahontas and the council.

Pollitt alleged that any further restrictions on mountaintop removal or valley fills "will result in a regulatory taking" of coal property owned by his clients.

A regulatory taking is a government action that restricts a private person or company's use of property. Property rights advocates argue the government should have to pay citizens for the loss of use of their property when a taking occurs.

"As owners and lessors of mineral rights, including coal seams that may be mined by mountaintop removal methods utilizing valley fills, intervenors have significant monetary resources at stake in this action," Pollitt wrote in his motion.

"Restrictions on permissible mining techniques directly affect decisions by mining companies to mine particular tracts of land," he wrote.

"Consequently, landowners and holders of mineral rights, such as intervenors, would be adversely affected by any decision of this Court that results in a reduction in the volume of mining engaged in their respective leases."

In mid-July, the West Virginia Highland Conservancy filed a lengthy lawsuit that alleges mountaintop removal mines in the state have been permitted illegally.

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.

In court filings, the Conservancy's lawyers argue that regulators must improve the permitting process so that mountaintop removal mines are smaller, bury fewer and smaller hollows, and provide the promised future economic development on mined land.

Haden has already allowed industry representatives to intervene in the case as defendants. Among them are three Arch Coal Inc. subsidiaries, Hobet Mining, Catenary Coal and Mingo Logan Coal. Two trade associations, the West Virginia Coal Association and the West Virginia Mining and Reclamation Association, also intervened.

In their motion filed on Friday, Western Pocahontas and the council argued they have different interests than the coal companies.

Western Pocahontas is a limited partnership that owns mineral rights in areas throughout Southern West Virginia. The council is a private organization composed of companies and individuals who own and lease coal properties.

"If the relief requested by plaintiffs is granted, coal operators will be forced to modify their mining techniques and move to other coal properties more suitable to permissible mining techniques," the motion said.

"However, the coal owners will be forever barred from receiving the economic benefit of the coal left behind," it said. "Owners of property or coal mineral rights ... have a significant interest in securing the economic value of such assets.

"Any regulatory scheme relating to the removal of coal from property or mineral holdings maintained by intervenors has a direct bearing on the future use of such holdings and their value to intervenors."

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


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