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ASSOCIATION OF BITUMINOUS CONTRACTORS v. ANDRUS

Nos. 75-1931 and 75-1932.

581 F.2d 853 (1978)

ASSOCIATION OF BITUMINOUS CONTRACTORS, INC. v. Cecil D. ANDRUS, Secretary of the Interior, U. S. Department of the Interior. Appeal of UNITED MINE WORKERS OF AMERICA. ASSOCIATION OF BITUMINOUS CONTRACTORS, INC. v. Cecil D. ANDRUS, Secretary of the Interior, U. S. Department of the Interior, United Mine Workers of America, Party-Defendant.

United States Court of Appeals, District of Columbia Circuit.

Decided February 22, 1978.

Attorney(s) appearing for the Case

Steven B. Jacobson, Washington, D. C., with whom Harrison Combs, Washington, D. C., was on the brief, for appellant in No. 75-1931.

John M. Rogers, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellant in No. 75-1932. Morton Hollander, Michael H. Stein, Robert E. Kopp and Michael Kimmel, Attys., Dept. of Justice, Washington, D. C., also entered appearances for appellant in No. 75-1932.

Guy Farmer and William A. Gershuny, Washington, D. C., filed a brief on behalf of Bituminous Coal Operators' Association as amicus curiae urging reversal.

Francis T. Coleman with whom William H. Howe and John R. Erickson, Washington, D. C., were on the brief for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

Opinion for the court filed by MacKINNON, Circuit Judge.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

MacKINNON, Circuit Judge:

The events underlying this appeal begin with a decision in an earlier unconnected case involving essentially the same facts concerning the Affinity Mining Co. in West Virginia. In that case an order issued on December 21, 1970, to evacuate a slope being driven at the Keystone...

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